Bruce Bierman v. Toshiba Corporation

facts meets the standard for reversal stated in Hinkson, 585 F.3d at 1263, the

district court did not abuse its discretion in denying the motion for

reconsideration.

AFFIRMED.

2 The 28(j) letter submitted by Toshiba apprising us of later developments does not change the analysis. The question here is whether the district court was within its discretion to remand the case in November 2010, and to deny Toshiba’s motion for reconsideration in December 2010. It was.

FILED

Bierman v. Toshiba Corporation, No. 11-15262 MAY 31 2012

MOLLY C. DWYER, CLERK

WALLACE, Senior Circuit Judge, concurring in the judgment: U .S. C O U R T OF APPE ALS

I agree with the majority’s conclusion that there was no abuse of discretion

in the district court’s decision to decline to exercise supplemental jurisdiction, but I

do not agree with the majority’s method of reaching that conclusion without first

assessing whether federal subject matter jurisdiction existed at all.

A federal court must have original jurisdiction before it can exercise

supplemental jurisdiction. 28 U.S.C. § 1367(a). Although I cannot dispute that the

majority is now…

MEMORANDUM *

This is an appeal by defendant-appellant Toshiba America Information Systems (“Toshiba”) of the district court’s order remanding the case to state court and the court’s subsequent denial of Toshiba’s motion for reconsideration. The parties are familiar with the facts underlying the appeal, and we do not include them here. On abuse of discretion review, we AFFIRM the district court’s determinations.

The district court’s decision not to exercise supplemental jurisdiction over the remaining state law claims was not an abuse of discretion. 1 In its initial remand order, the court stated that “given the early stage of the proceedings, and there appearing no considerations weighing against remand, the Court finds it appropriate to decline to exercise supplemental jurisdiction over the state law claims in the complaint.” This shows that the district court properly understood the factors it should consider, and did not apply those factors in a way that was “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

The district court’s denial of Toshiba’s…

concurring in the judgment:

I agree with the majority’s conclusion that there was no abuse of discretion in the district court’s decision to decline to exercise supplemental jurisdiction, but I do not agree with the majority’s method of reaching that conclusion without first as *758 sessing whether federal subject matter jurisdiction existed at all.

A federal court must have original jurisdiction before it can exercise supplemental jurisdiction. 28 U.S.C.. § 1367(a). Although I cannot dispute that the majority is now permitted by Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 , 127 S.Ct. 1184 , 167 L.Ed.2d 15 (2007), to decide an issue before it determines its power to do so, the approach needlessly departs from traditional federal jurisdiction theory: no jurisdiction, no power to act. Here, the district court issued a judgment on the merits by dismissing portions of two causes of action as preempted. While we were not asked to review this merits decision because Bierman did not appeal from it, defects in subject matter jurisdiction “go to the inherent power of the court and cannot be waived or forfeited.” United States v. Castillo, 496 F.3d 947, 952 (9th…