1

 28 U.S.C. § 1367(c); see Palmer v. Hospital Auth., 22 F.3d

1559, 1563 (11th Cir. 1994) ("Section 1367 codifies the concepts

previously known as pendent and ancillary jurisdiction," and it

retains the dichotomy formerly derived from United Mine Workers v.

Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), for accepting or

declining supplemental jurisdiction). 

BIRCH, Circuit Judge, dissenting:

Because I believe that the district court correctly remanded the entire

underlying case to state court, albeit under the wrong reasoning and statutory

authority, I dissent. I agree with the majority that 28 U.S.C. § 1367(c) was the

improper basis to support remand of the entire underlying case, which

includes a 42 U.S.C. § 1983 claim, because section 1367(c) accords a district

court discretion to decline supplemental jurisdiction over state law claims in

definitive situations.1

 I disagree, however, with the majority and the district

court's dismissal of 28 U.S.C. § 1441(c) as the basis for remanding the entire

underlying case because the federal claim was not separate and independent

from the state law claims. My review of the legislative history for the

applicable 1990 amendment to section 1441(c) convinces me that the district

court was authorized under this statute to remand the entire underlying case

to state court. 

 I. THE "SEPARATE AND INDEPENDENT CLAIM" LANGUAGE OF 

 SECTION 1441(c)

The amendment of 28 U.S.C. § 1441(c) in 1990 resulted from the

recommendation of the Federal Courts Study Committee ("Committee"), which

was created by the Judicial Improvements and Access to Justice Act of 1988

to study and report to Congress on certain issues relating to the federal
2

courts. The Committee's recommendations are contained in the Report of the

Federal Courts Study Committee ("Report"), dated April 2, 1990. The

Committee recommended repeal of section 1441(c), "concerning removal of

separate and independent claims," because of the problems encountered in

the interpretation of "separate and independent" claims in administering this

statute by the federal courts. Report at 94, 95. 

The Committee recognized that the "separate and independent claim or

cause of action" language of former section 1441(c) related to diversity cases

"when the separate claim is against another, non-diverse party." Id. The

former doctrine of ancillary jurisdiction, now subsumed by supplemental

jurisdiction, codified in 28 U.S.C. § 1367, allowed unrelated claims to be

joined in a single lawsuit and occurred in diversity, not federal question,

cases. Clearly, diversity jurisdiction was where "most of the difficulties with

§ 1441(c)" arose as courts and parties attempted to decipher the

separateness or relatedness of claims. Id. at 95. 

Congress, however, did not repeal section 1441(c), but "modified" the

statute "so as to eliminate most of the problems that have been encountered

in attempting to administer the 'separate and independent claim or cause of

action' test" as described by the Report. H.R. Rep. No. 101-734, 101st Cong.,

2d Sess., at 22-23 (1990) (Federal Courts Study Committee Implementation

Act of 1990). In a manifest attempt to restrict the application of section

1441(c) to federal question jurisdiction, as opposed to diversity jurisdiction,
3

and to clarify the remand discretion given to district courts, Congress

amended the statute in 1990 to provide:

Whenever a separate and independent claim or

cause of action within the jurisdiction conferred by

section 1331 of this title is joined with one or more

otherwise non-removable claims or causes of action,

the entire case may be removed and the district court

may determine all issues therein, or, in its discretion,

may remand all matters in which State law

predominates.

28 U.S.C. § 1441(c) (emphasis added). Thus, Congress recognized that the

"separate and independent claim" problem arose in diversity cases, where

the "plaintiff could easily bring a single action on a federal claim and a

completely unrelated state claim." H.R. Rep. No. 101-734, at 23 (emphasis

added). In contrast, Congress acknowledged that federal question

jurisdiction, associated with the former doctrine of pendent jurisdiction,

involves related claims. This relatedness of state and federal causes of

action is so implicit that Congress determined that the amendment of section

1441(c) "would avoid the need to decide whether there is pend[e]nt

jurisdiction" in removal and remand. Id.

Since amended section 1441(c) concerns only federal question

jurisdiction and deletes diversity jurisdiction, now covered by section 1441(b),

Congress undertook to relieve federal judges from determining whether the

state and federal causes of action are related or unrelated. In federal

question cases, these causes of action are related. "The further amendment

to Sec. 1441(c) that would permit remand of all matters in which state law
4

predominates also should simplify administration of the separate and

independent claim removal." Id. (emphasis added). Indeed, the

congressionally edited version of section 1441(c), showing the deleted and

added wording makes plain that a deliberate choice has been made from

allowing a district court to remand "all matters not otherwise within its original

jurisdiction" to "may remand all matters in which State law predominates." Id.

at 50. Whereas the district court formerly had no choice in retaining a federal

claim, it now may remand an entire case, including the federal question

claim, if state law predominates. See Maine v. Thiboutot, 448 U.S. 1, 3 n.1,

100 S.Ct. 2502, 2503 n.1 (1980) (recognizing that federal courts do not have

exclusive jurisdiction to adjudicate section 1983 claims, since state courts

have concurrent jurisdiction (citing Martinez v. California, 444 U.S. 277, 283-

84 n.7, 100 S.Ct. 553, 558 n.7 (1980)); see also 13B Charles A. Wright, Arthur

R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3573, at p.

196 (1984) (acknowledging that "it is now settled" that federal and state courts

have concurrent jurisdiction in section 1983 cases). Accordingly, "separate

and independent claim or cause of action" in section 1441(c) means a

legitimate basis of federal jurisdiction apart from jurisdiction under state

law claims. 

In view of this legislative history, the majority's use of American Fire &

Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534 (1951), for the proposition that

no separate and independent cause of action can exist under section 1441(c)
 2

 In reversing the Fifth Circuit and remanding the case with

instructions that it be remanded to state court, the Supreme Court

concluded: "In this case, however, the District Court would not

have had original jurisdiction of the suit, as first stated in the

complaint, because of the presence on each side of a citizen of

Texas." Finn, 341 U.S. at 17, 71 S.Ct. at 541-42 (citing 28 U.S.C.

§ 1332). 

 3 In Carnegie-Mellon, the "single federal-law claim in the

action was eliminated at an early stage of the litigation" giving

the district court "a powerful reason to choose not to continue to

exercise jurisdiction." 484 U.S. at 351, 108 S.Ct. at 619. In

contrast, the underlying case in this petition had been pending for

5

where federal and state causes arise from a common event is unpersuasive

in the context of a federal question case. Finn is a diversity case, and it was

remanded to state court because of the lack of complete diversity, the basis

of federal jurisdiction.2

 Indeed, the Court defined a controversy between

citizens of different states as "'separable.'" Id. at 10, 71 S.Ct. at 538. That is,

the "single wrong" that is the basis of the diversity case is separate and

independent from an unrelated or ancillary claim that destroys complete

diversity. Id. at 14, 71 S.Ct. at 540. Noting the difficulty in interpreting the

meaning of "'separate and independent claim or cause of action,'" the Court

found that an "important purpose" in the then-operative revision of § 1441(c)

was "to limit removal from state courts." Id. at 9-10, 71 S.Ct. at 538. Thus,

Finn addresses diversity jurisdiction and not federal question jurisdiction,

where the claims are intertwined.

In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614 (1988),

decided on principles of pendent jurisdiction because the federal claims had

been eliminated and only state law claims remained,3

 the Court explained that
two years in state court, discovery was completed, and the case was

set for trial before removal to federal court. The pivotal issue

in Carnegie-Mellon was whether the district court should relinquish

jurisdiction by dismissing the case, consisting of the pendent

state law claims, without prejudice or by remanding it to the state

court. Id. In confirming the judicial economy and comity

principles of Gibbs, the Court concluded that remand was preferable

to dismissal, which might preclude a plaintiff from litigating

claims because of the expiration of a state statute of limitations.

Id. at 351-53, 108 S.Ct. at 619-20.

6

"[s]ections 1441(c) and 1447(c) . . . do not apply to cases over which a federal

court has pendent jurisdiction. Thus, the remand authority conferred by the

removal statute and the remand authority conferred by the doctrine of pendent

jurisdiction overlap not at all." Id. at 355 n.11, 108 S.Ct. at 621 n.11. The

presently applicable 1990 amendment to section 1441(c), which followed the

Carnegie-Mellon decision, gives district courts the ability to remand "all

matters," or the entire case, to state court if state law predominates.

II. STATUTORY INTERPRETATION AND APPLICATION

A. Principles of Statutory Construction

We review a district court's interpretation and application of a statute de

novo. International Union v. Jim Walter Resources, Inc., 6 F.3d 722, 724

(11th Cir. 1993). When statutory language is clear and unambiguous, the

language controls "absent a legislative intent to the contrary." United States

v. Chandler, 996 F.2d 1073, 1084 (11th Cir. 1993) (citing United States v.

Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527 (1981)) (emphasis added),

cert. denied, ___U.S.___, 114 S.Ct. 2724 (1994). Only when the statutory

language is unclear do we resort to legislative history. United States v.
7

Rojas-Contreras, 474 U.S. 231, 235, 106 S.Ct. 555, 557 (1985); see United

States v. Castro, 829 F.2d 1038, 1049 (11th Cir. 1987) ("Our objective when

interpreting a statute is to determine the drafters' intent."), modified on other

grounds, 837 F.2d 441 (11th Cir. 1988). "In determining the meaning of the

statute, we look not only to the particular statutory language, but to the design

of the statute as a whole and to its object and policy." Crandon v. United

States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001 (1990) (emphasis added);

accord McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740

(1991); Chandler, 996 F.2d at 1084. Thus, statutory language must be

interpreted in context, and not in isolation, to effectuate the statutory purpose.

Department of Revenue v. ACF Indus., Inc., ___ U.S. ___, ___, 114 S.Ct. 843,

848 (1994); see City of Jamestown v. James Cable Partners, L.P. (In re

James Cable Partners, L.P.), 27 F.3d 534, 537 (11th Cir. 1994) (per curiam)

(holding that statutory language should not be construed separately or in a

vacuum, but within the meaning of the whole statute).

Accordingly, courts cannot pronounce a statutory interpretation that

would thwart the legislative purpose of a particular statute. In re Trans Alaska

Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061 (1978). "A

change of [statutory] language is some evidence of a change of purpose . . .

." Johnson v. United States, 225 U.S. 405, 415, 32 S.Ct. 748, 751 (1912);

accord McElroy v. United States, 455 U.S. 642, 650-52 n.14, 102 S.Ct. 1332,

1337 n.14 (1982). An interpretation of statutory language that causes other
 4

 Despite congressional efforts at clarifying § 1441(c), it is

manifest that reasonable jurists continue to differ concerning the

interpretation of this statute evidenced by the district court in

the underlying case and the majority's view versus mine. See

Burnett v. Birmingham Bd. of Educ., 861 F. Supp. 1036, 1038-39

(N.D. Ala. 1994) (listing district courts that have followed the

interpretation of § 1441(c) by the district courts in our circuit

permitting remand of a case containing a federal cause of action

where state law claims predominate, which is my interpretation, and

district courts that would agree with the district court in the

underlying case and the majority's interpretation).

8

language within the statute to be meaningless contravenes the "'elementary

canon of construction that a statute should be interpreted so as not to render

one part inoperative.'" Mountain States Tel. & Tel. Co. v. Pueblo of Santa

Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594 (1985) (quoting Colautti v.

Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684 (1979)). 

B. Judicial Interpretation

The congressional amendment of section 1441(c) in 1990 resulted from

problematic judicial interpretations of "separate and independent claim" in the

former version of the statute.4

 Therefore, the legislative history addressed in

the previous section is crucial to our understanding of the meaning of

"separate and independent claim" within the context of section 1441(c) as

amended. Because present section 1441(c) is limited to federal question

jurisdiction, state law claims will be related to the federal claim(s). Thus,

"separate and independent claim" cannot mean that the federal claim is

unrelated to the state claims. Furthermore, amended section 1441(c) now

authorizes the district court to remand all matters in which state law

predominates; it no longer is required to retain the federal claim as it was in
 5

 "Prior to its amendment, section 1441(c) permitted a

district court to remand any separate and independent matter 'not

otherwise within its original jurisdiction.' In other words, a

district court could remand the state law claims not within its

original jurisdiction but was required to retain the federal law

claims." Moore v. DeBiase, 766 F. Supp. 1311, 1320 (D.N.J. 1991)

(citations omitted) (emphasis added).

9

the previous version of the statute.5 See Johnson, 225 U.S. at 415, 32 S.Ct.

at 751 (determining that a legislative change in statutory language constitutes

evidence of a change in the statutory purpose). 

To focus on the "separate and independent claim" language of section

1441(c), as the majority and the district court have done, fails to view the

statute in context or to give meaning to the ability now accorded a district

court to remand "all matters in which State law predominates." 28 U.S.C. §

1441(c). Under the majority and the district court's interpretation, which is the

former interpretation and application of section 1441(c), the district court

cannot remand the 42 U.S.C. § 1983 claim, but must retain that claim in

federal court because the federal claim is not separate and independent from

the state law claims. This former interpretation, however, would subvert

amended section 1441(c) of its present meaning by precluding the remand of

all matters in which state law predominates. See Mountain States Tel. &

Tel. Co., 472 U.S. at 249, 105 S.Ct. at 2594 (holding that specific statutory

language cannot be interpreted so as to render other language within the

same statute inoperative or meaningless). 
 6

 District courts have been the primary federal courts to

interpret and to apply § 1441(c) since its amendment in 1990. Even

the Third Circuit, which addresses amended § 1441(c), adopts the

rationale of a Southern District of Ohio case, Kabealo v. Davis,

829 F. Supp. 923 (S.D. Ohio 1993), aff'd mem., ___ F.3d ___ (6th

Cir. 1995). Borough of West Mifflin v. Lancaster, 45 F.3d 780, 786

(3d Cir. 1995). Lancaster also cites Buchner v. F.D.I.C., 981 F.2d

816 (5th Cir. 1993), which presents the opposite factual and legal

scenario from the underlying case in this petition. Under §

1441(c), the Fifth Circuit concluded that federal, not state law

claims, predominated because, "[a]s the FDIC is a party to the

present suit, all of the component claims are conclusively deemed

to have arisen under federal law." Id. at 819. Accordingly,

Buchner is not analogous to the underlying case in this petition.

Furthermore, the Fifth Circuit in Buchner did not consider the

legislative history behind the 1990 amendment of § 1441(c). 

 7 Martin was the first federal court to interpret § 1441(c)

following its amendment in 1990. District courts nationwide have

relied on Martin and its progeny in our circuit and followed its

reasoning. See, e.g., Bodenner v. Graves, 828 F. Supp. 516, 519

(W.D. Mich. 1993); Lang v. American Elec. Power Co., 785 F. Supp.

1331, 1334-35 (N.D. Ind. 1992); Moralez v. Meat Cutters Local 539,

778 F. Supp. 368, 370-71 (E.D. Mich. 1991); Moore v. DeBiase, 766

F. Supp. 1311, 1316 n.9, 1319 (D.N.J. 1991). Lancaster, however,

specifically rejects Martin and Holland from our circuit as the

proper analysis. Lancaster, 45 F.3d at 787. 

10

 Since the 1990 amendment of section 1441(c), district courts6 in our

circuit uniformly have interpreted the revised statute to accord discretion to

district courts to remand an entire case, including a federal claim, to state

court if state law predominates. Alexander ex rel. Alexander v. Goldome

Credit Corp., 772 F. Supp. 1217, 1222-25 (M.D. Ala. 1991); Holland v. World

Omni Leasing, Inc., 764 F. Supp. 1442, 1443-44 (N.D. Ala. 1991); Martin v.

Drummond Coal Co., 756 F. Supp. 524, 525-27 (N.D. Ala. 1991)7; accord

Burnett v. Birmingham Bd. of Educ., 861 F. Supp. 1036, 1037-39 (N.D. Ala.

1994). "The [present] words 'may remand all matters in which State law

predominates' were substituted for the former words 'may remand all matters
 8

 See Moore, 766 F. Supp. at 1320 ("'Matters,' in the context

of the prior version of section 1441(c), could only be interpreted

to mean a discrete claim or cause of action and not the entire

case. . . . Although Congress retained the term 'matters,' it

eliminated the limitation to only claims or causes of action not

within the district court's original jurisdiction."); see also

Alexander, 772 F. Supp. at 1224-25 ("Note that the word used by the

statute is still 'matters.' The federal court can remand all

'matters' in which state law predominates. If 'matters' is

construed to include all 'claims,' then a combination of claims in

which a federal claim is one but in which state law is found to

'predominate' may justify a remand of the whole case, with the

federal claim included." (quoting David D. Siegel, Changes in

Federal Jurisdiction and Practice Under the New (Dec. 1, 1990)

Judicial Improvements Act, 133 F.R.D. 61, 78 (1991) (emphasis

added)).

11

not otherwise within its original jurisdiction.' This is a dramatic change."8

Martin, 756 F. Supp. at 525. "[E]ven if there is a federal question identified in

plaintiff's well-pleaded complaint, as is true in the instant case, § 1441(c) can

still justify remanding the entire case 'if state law predominates.'" Holland, 764

F. Supp. at 1444 (quoting 28 U.S.C. § 1441(c)) (emphasis added); see Moore,

766 F. Supp. at 1321 ("Congress, by granting the discretion to remand all

matters in which state law predominates, intended to permit a district court to

remand the entire case and not just the state law claims." (emphasis added)).

Significantly, in cases where the federal claim is "so intertwined with" as

to be "indistinguishable from" the state law claims, making it "very difficult, i[f]

not impossible, to treat separately," the federal court's retaining the case only

because of the federal claim "invariably" would result in a "race-to-judgment

between the federal court and the state court, and the first court to decide its

case might create a serious res judicata problem for the other court." Holland,

764 F. Supp. at 1444; see Moore, 766 F. Supp. at 1321 ("Remand of the
12

entire matter, including the section 1983 claims, is even more compelling in

this case because the federal law claims are factually tied to all of the state

law claims." (citing Martin, 756 F. Supp at 527) (emphasis added)). In

remanding the entire case, including the federal Truth in Lending Act claim,

to state court because state law predominated, the district court determined

that "[a]llowing for a remand of the entire case allows a court to avoid

piecemeal litigation and to properly limit those cases removed to federal court

to those that truly present federal issues. Alexander, 772 F. Supp. at 1225

(emphasis added).

C. Determination of State Law Predomination

 Because Congress did not explain explicitly how to determine when

state law predominates over federal question jurisdiction where pleadings

invoke both state and federal law, "a value judgment by the federal court" is

required. Martin, 756 F. Supp. at 527; accord Moore, 766 F. Supp. at 1319.

State law predominates "'[i]f the federal court finds that the federal claim, while

plausible, is not really the plaintiff's main mission; that it is only an incident or

adjunct of the state claim and that the state claim is the crux of the action . .

. .'" Moore, 766 F. Supp. at 1319 (quoting 28 U.S.C.A. § 1441 Commentary

(West Supp. 1991)); see Burnett, 861 F. Supp. at 1038 ("Employing the

routinely accepted proposition that removal statutes are always to be

construed against removal, the language of § 1441(c) cannot be interpreted

to recognize an exception for all state cases which simply contain a claim
 9

 Recognizing that determining that state law predominates is

not merely a numerical count of the respective claims, the district

court in the underlying case used the Gibbs standard for comparing

the state and federal claims "in terms of proof, of the scope of

the issues raised, or of the comprehensiveness of the remedy

sought." Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. As to type and

amount of damages available under the federal and state claims, the

district judge determined that there is little difference because

there are no liability caps under either federal or state claims as

to the five named defendants other than the City of Mobile.

Thornton v. Kahalley, No. 95-0509-CB-C, slip op. at 9-10 (S.D. Ala.

Sept. 20, 1995) (order granting plaintiffs' motion to remand the

entire case to state court) [hereinafter "Remand Order"]. In

contrast, the district judge found "pervasive differences in both

the standards and elements of proof" for the state versus the

federal claims. Id. at 10. Under the Alabama Dram Shop Act, the

district judge explained that the relevant defendants could be

strictly liable for their actions, and that the remaining state

common law claims permit recovery on a showing of negligence or

wantonness. Under section 1983, the district judge recognized that

a plaintiff is required to show gross negligence or deliberate

indifference resulting from an official policy or custom. Thus,

the district judge concluded that the standard of proof for the

13

invoking 42 U.S.C. § 1983 as to which state courts have concurrent

jurisdiction."). A district court decides whether state law predominates by

examining the "nature of the claims as set forth in the pleading and by

determining whether the state law claims are more complex or require more

judicial resources to adjudicate or are more salient in the case as a whole

than the federal law claims." Moore, 766 F. Supp. at 1319 (footnote omitted).

Thus, Congress accorded district courts "broad discretion" in determining

whether to retain a removed case or to remand it entirely to state court. Id.

(emphasis added).

The district court analyzed its reasons for concluding that state law

predominates in the underlying case, although in the context of 28 U.S.C. §

1367(c)(2).9

 See Bodenner v. Graves, 828 F. Supp. 516, 518 (W.D. Mich.
section 1983 claim was "substantially higher" than that for the

various state law claims. Id. Additionally, the district judge

found that "there are marked differences in the means available to

a plaintiff to establish his case under § 1983 and the state law

claims." Id. While Alabama law allows a municipality to be liable

for negligence under respondeat superior, the district judge

contrasted section 1983, which prohibits liability under that

theory. Because the state causes of action require lower standards

and elements of proof than does the federal civil rights claim, the

district judge concluded, as a matter of law, that the state law

claims substantially predominated in the underlying case. Id. at

11; see Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 ("Needless

decisions of state law should be avoided both as a matter of comity

and to promote justice between the parties, by procuring for them

a surer-footed reading of applicable law."). 

 10 In its remand order for the underlying case, the district

court explained:

The state judiciary has already invested substantial

resources in this case, has resolved numerous discovery

and other preliminary matters, and has developed

familiarity and expertise over the factual and legal

issues in this cause of action which this court presently

lacks. It would be neither an economical nor a

convenient allocation of judicial resources for this

court to seize jurisdiction over this entire action at

the eleventh hour of the state litigation.

14

1993) (noting that the language of section 1441(c) relating to the discretion of

the district court to remand "'all matters in which State law predominates' . .

. . closely mirrors that of § 1367(c)(2))." (quoting 28 U.S.C. § 1441(c)).

Irrespective of whether section 1441(c) or section 1367(c)(2) is applied, the

claims and facts are the same. Finally, the underlying case has been

proceeding in state court for two years through discovery, and it was

scheduled for trial before addition of the section 1983 claim and its removal

to federal court; clearly, the state court is in a better position to adjudicate the

issues in the underlying case.10 The district court acted within its discretion
Remand Order at 12.

15

accorded by section 1441(c), as amended in 1990, in remanding the entire

underlying case after determining that state law predominated.

III. CONCLUSION

I conclude that the majority errs in limiting its discussion to supplemental

jurisdiction under 28 U.S.C. § 1367(c) and in failing to analyze the district

court's remand of the entire underlying case under 28 U.S.C. § 1441(c), as

amended. The legislative history behind the 1990 amendment of section

1441(c) reveals that "separate and independent claim" does not mean that the

federal claim is unrelated to the state law claims in a federal question case.

"Separate and independent claim" refers to a legitimate federal jurisdictional

basis. In a case involving both valid federal and state law claims, the district

court must determine that state law claims predominate if it decides to remand

the entire case. I believe that the district court correctly remanded the entire

underlying case to state court based on the predomination of state law claims,

although I do not endorse its statutory authority for the remand under section

1367(c), concerning supplemental jurisdiction.

Apparently, the majority sees the dilemma of trial of federal claims in

federal court and trial of related state claims in state court presenting the

problems of conflicting federal and state adjudications, race to judgment and

res judicata; hence the implicit suggestion to the district court that it adjudicate

all claims, state and federal. Because the majority's interpretation of
16

"separate and independent claim" in section 1441(c) as well as its resolution

makes the ability of district judges to remand all matters to state court under

the statute devoid of meaning, I cannot accept it. The majority's interpretation

and resolution is particularly unsatisfactory in this underlying case where the

district judge, as factfinder, has determined that state claims predominate, and

that it is appropriate to adjudicate the single, lately added federal claim in

state court. Because I would have dismissed the mandamus petition for the

reasons explained herein and upheld the district court's remand of the entire

underlying case to state court, I respectfully dissent.