The Clorox Company v. The United States District Court for the Northern District of California

756 F.2d 699 6 Employee Benefits Ca 1508 The CLOROX COMPANY, Petitioner, v. The UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent. No. 83-7815. United States Court of Appeals, Ninth Circuit. Argued April 13, 1984. Submitted Oct. 29, 1984. Decided March 26, 1985. Robert Fries, Steinhart & Falconer, San Francisco, Cal., for petitioner. Stephen L. Roycraft, Barfield, Barfield, Dryden & Ruane, San Francisco, Cal., for respondent. Appeal from the United States District Court for the Northern District of California. Before SKOPIL and NORRIS, Circuit Judges, and EAST, * District Judge. SKOPIL, Circuit Judge: 1 Clorox Company ("Clorox") petitions for a writ of mandamus requiring the district court to vacate its order remanding this action to the state court from which it was removed. We conclude that the petition must be denied. FACTS AND PROCEEDINGS BELOW 2 Carol Stower, a participant in Clorox's employee welfare benefit plan, filed the underlying action against Clorox in Alameda County (California) Superior Court. Stower's complaint asserted several claims: loss of salary and benefits due to wrongful termination, misrepresentation of intent to pay…

dissenting:

I dissent because, unlike the majority, I would treat Clorox’s petition for a writ of mandamus as a notice of appeal, thus emphasizing substance over form. Clorox filed its writ while Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir.1984), was still pending. When Clorox filed its petition, therefore, it was not unreasonable for petitioner to believe the district court’s remand order was reviewable only by mandamus, not by direct appeal. After Pelleport, however, it is clear that the remand order is reviewable by a direct appeal. Since Pelleport arguably changed the law of the Circuit and it was decided after it was too late for Clorox to file a direct appeal, I think denying Clorox’s petition for a writ of mandamus is an unnecessarily harsh result.

Contrary to the view of the majority, I believe we do have the authority to construe the petition as a notice of appeal. It is well settled that this Circuit adheres to the liberal rule by which “courts of appeals *702 have discretion, when the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal.” Cel-A-Pak v.…

Clorox Company (“Clorox”) petitions for a writ of mandamus requiring the district court to vacate its order remanding this action to the state court from which it was removed. We conclude that the petition must be denied.

FACTS AND PROCEEDINGS BELOW

Carol Stower, a participant in Clorox’s employee welfare benefit plan, filed the underlying action against Clorox in Alame-da County (California) Superior Court. Stower’s complaint asserted several claims: loss of salary and benefits due to wrongful termination, misrepresentation of intent to pay disability benefits, negligent administration of Clorox's employee benefit plan, and malicious conduct in terminating her employment and benefits. Clorox removed the action to federal court under 28 U.S.C. §§ 1331 and 1441(a). Clorox predicated its removal on the existence of a federal question under the Employee Retirement Income Security (“ERISA”) Act, 29 U.S.C. §§ 1001-1381 .

Thereafter, Stower moved the district court to remand the action to state court. The district court granted Stower’s motion to remand, finding that statements made in an employee handbook estopped Clorox from asserting its right to removal.

Clorox seeks mandamus…