* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50249

Summary Calendar

 

GWENDOLYN BAILEY; MARY LOPEZ; JOSEPHINE S.

STEPHENSON; BELINDA GONZALES; GEORGIA 

SUTHERLAND; SUSAN DENSON; SUSAN MILLER;

LETICIA RIVAS; LINDA ROSE; MARGARET DECKER;

HELEN YOUNG,

Plaintiffs-Appellees,

versus

DEAN NICK WALSH, Individually and as 

representative of University Physician’s

Group; UNIVERSITY PHYSICIANS GROUP,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-00-CV-1563

--------------------

January 28, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In October of 2000, Gwendolyn Bailey (“Bailey”) and ten

other plaintiffs asserted federal and state law claims in Texas

state court against the University Physicians Group (“UPG”) and

its former President, Dr. Nicholas Walsh. UPG removed the case
No. 02-50249

-2-

to federal court shortly thereafter. Just before the onset of

trial, the presiding judge, Judge Garcia, unfortunately passed

away. Less than a week before trial, Bailey sought remand to

state court, allowing that the federal claim averred was

insufficient. The district court granted the motion to remand

and allowed the federal claim to be withdrawn from the complaint. 

Appellants complain of both of these rulings.

Bailey argues that this court lacks jurisdiction. This

court may hear the appeal from an order to remand made on a basis

other than the lack of subject matter jurisdiction. Roark v.

Humana, Inc., 307 F.3d 298, 311 (5th Cir. 2002). Here, the

district court could not have been more explicit. Despite

Bailey’s contentions, the district court noted that it did in

fact have subject matter jurisdiction and remanded only on the

basis of its own exercise of discretion. Thus, we may entertain

this appeal.

We reject appellants’ argument that the district court erred

in remanding the state law claims. In light of the limited pretrial discovery and the unfortunate passing of Judge Garcia, the

district court was well within its wide discretion as to the

order of remand where only supplemental state law claims

remained. See Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir.

1999). 

We likewise reject the argument that the district court

erred in allowing the federal claims to be withdrawn from the
No. 02-50249

-3-

complaint. Withdrawing a claim from within a complaint is

properly seen as an amendment of the complaint. Ryan v.

Occidental Petroleum Corp., 577 F.2d 298, 302 n.2 (5th Cir.

1978). The grant of a motion to amend a complaint is within the

discretion of the district court. Jacobsen v. Osborne,133 F.3d

315, 318 (5th Cir. 1998). However, the motion should be granted

in the absence of a substantial reason to deny. Id. The only

danger posited by the appellants that is risked by the grant of

the motion to amend the complaint is the possibility that Bailey

will re-assert the federal cause of action. However, that danger

is inherent to any grant of a motion to withdraw a cause of

action, a legal maneuver that is not per se forbidden. In the

absence of any substantial reason to deny, the district court did

not abuse its discretion in granting the motion to withdraw the

federal cause of action.

AFFIRMED.