November 09, 2011 Articles

Appealing Dismissal of Federal Claims upon Remand of State Law Claims

There has been little discussion about procedure where a district court assumes jurisdiction over an action including federal and state-law claims, dismisses the former, and then remands the latter.

By Lawrence A. Kasten

Federal courts and scholars have extensively considered the question of whether orders remanding actions to state court are appealable. As is explained below, many questions in this area recently have been resolved by the Supreme Court. There has been relatively less discussion, however, about appellate procedure in cases in which a district court properly assumes jurisdiction over an action that includes both federal claims and state-law claims, dismisses the federal claims, and then remands the remaining state-law claims. Although proper procedure in this area appears relatively clear at this time, the matter is nevertheless appropriate for discussion for at least two reasons. First, it implicates important appellate timing issues, particularly for claimants who must understand the rules so that they do not forfeit an appeal. Second, it creates the possibility of splitting a case between federal and state courts even though the parties may not desire such a result.

Consider the following example. The plaintiff brings an action in state court, which the defendant removes because it includes a federal claim in addition to state law claims. As any first-year civil procedure student can recite, the district court’s jurisdiction over the federal claim also gives it subject matter jurisdiction over factually related state law claims under the doctrine previously known as “pendent” jurisdiction and now codified in the federal supplemental jurisdiction statute. 28 U.S.C. § 1367. Assume, however, that some time later, the district court grants a motion to dismiss the federal claim.

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