Rosario Ramirez v. Fox Television Station, Inc. Chuck Ammann Nancy Ferguson

998 F.2d 743 143 L.R.R.M. (BNA) 2834 , 62 Fair Empl.Prac.Cas. (BNA) 489, 62 Empl. Prac. Dec. P 42,449 , 125 Lab.Cas. P 10,768 , 26 Fed.R.Serv.3d 1158 Rosario RAMIREZ, Plaintiff-Appellant, v. FOX TELEVISION STATION, INC.; Chuck Ammann; Nancy Ferguson, Defendants-Appellees. No. 91-56233. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 1, 1993. Decided July 14, 1993. Raymond P. Boucher, Santa Monica, CA, for plaintiff-appellant. Joel P. Kelly, McKenna & Cuneo, Los Angeles, CA, for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges. WALLACE, Chief Judge: 1 This appeal primarily concerns jurisdiction. It requires that we determine, first, whether we have appellate jurisdiction and, second, whether the district court had removal jurisdiction. Ramirez appeals from the district court's dismissal without prejudice, in which she charged that her employer, Fox Television Stations, Inc. (Fox), discriminated against her on the basis of her national origin. Fox argues that we do not have appellate jurisdiction because the district court's dismissal…

This appeal primarily concerns jurisdiction. It requires that we determine, first, whether we have appellate jurisdiction and, second, whether the district court had removal jurisdiction. Ramirez appeals from the district court’s dismissal without prejudice, in which she charged that her employer, Fox Television Stations, Inc. (Fox), discriminated against her on the basis of her national origin. Fox argues that we do not have appellate jurisdiction because the district court’s-, dismissal was not a final decision. Ramirez asserts that we have jurisdiction, that the district court did not, and thus that the court erred in refusing to remand Ramirez’s case to state court. Ramirez also challenges the district court’s imposition of a monetary sanction against her attorney. The'district court exercised jurisdiction pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185 (a). Our jurisdiction over this timely appeal can only be pursuant to 28 U.S.C. § 1291 . We reverse all but the award' of sanctions and remand with directions to remand Ramirez’s action to state court.

I

Ramirez is employed by Fox as an engineer at a local television station in Los Angeles. She alleges in her complaint that…

dissenting in part:

I concur in Parts I — III of the majority opinion, but dissent from Part IV. I disagree with the majority that the district court properly exercised its discretion in sanctioning Ramirez’s attorney.

Although Ramirez’s attorney was remiss in simply changing the title of his motion papers and submitting the same set of papers twice, I can not agree with the majority that the attorney’s conduct was “impertinent”. Under the circumstances of this case, the attorney acted within reason. See Business Guides, Inc. v. Chromatic Communications Enters., 498 U.S. 533, 550-52 , 111 S.Ct. 922, 933 , 112 L.Ed.2d 1140 (1991). Considering the undisputed facts, the attorney could have made no plausible, good faith argument in opposition to Fox’s summary judgment motion. His only tenable argument was that the district court’s prior preemption determination was erroneous. Thus, the attorney’s conduct was not “clearly frivolous, legally unreasonable; or without legal foundation.” Operating Eng’rs Pension Trust v. A-C Co., 859 F.2d 1336 , 1344 (9th Cir.1988). Indeed, we have today decided that the district court’s preemption determination was in error.

Finally, I would also note…