Executive Software North America, Inc. v. United States District Court for the Central District of California

ORDER

The opinion and dissent filed January 27, 1994, slip op. 853, and appearing at 15 F.3d 1484 (9th Cir.1994), are withdrawn. A new opinion and dissent are filed in their place.

*1548 OPINION

Executive Software North America, Inc., Craig Jensen, and Sally Jensen (“Petitioners”) petition this court for a writ of mandamus to compel the United States District Court for the Central District of California to retain jurisdiction over certain pendent state law claims filed in an employment discrimination suit against them by the plaintiff-real-party-in-interest, Donna Page. Petitioners 1 contend that, in remanding the plaintiffs pendent state law claims, the district court misapprehended the scope of the supplemental jurisdiction statute, 28 U.S.C.A. § 1367 (West Supp.1992), and failed to undertake the case-specific analysis required by that statute. In addition, Petitioners contend that, on a proper application of section 1367, a remand of their state law claims cannot be justified. Finally, Petitioners assert that mandamus is their only means of remedying this asserted error. For the reasons stated below, we grant the writ, but on narrower grounds than urged by the…

dissenting:

I dissent.

I agree with the majority that unless the district court’s order is clearly erroneous as a matter of law the writ of mandamus should not issue. I cannot agree with the majority that this court should conclude that the district court clearly erred because we cannot determine the exact ground upon which the court relied.

The district court’s order to show cause said in part:

The order to show cause included a discussion of the court’s discretion to decline jurisdiction, which included the following possible grounds:

The record does not suggest that the court relied on any ground or factor not mentioned in its order to show cause. Because the court made no findings, we do not know which one or more of the grounds it relied on. On that basis alone, however, the majority concludes that the district court may have relied on a ground not enumerated in section 1367(c); that this was in error, and not only error, but clear error for the purpose of mandamus. I cannot join the majority’s reasoning to the effect that our inability to find that the court did not err puts it in clear error.

Grounds one and two, suggested in the order to show cause, are mentioned in…