United States Court of Appeals
For the First Circuit
No. 05-1392
ELAINE CONNOLLY,
Plaintiff, Appellant,
v.
H.D. GOODALL HOSPITAL, INC.; SHELLY STUART; JEFFREY TONER;
DOLORES HOPPER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Thomas J. Connolly for appellant.
James R. Erwin with whom Katharine I. Rand and Pierce Atwood
LLP, were on brief, for appellees.
October 31, 2005
HOWARD, Circuit Judge. Plaintiff Elaine Connolly brings
this appeal to challenge the district court's dismissal under Fed.
R. Civ. P. 12(b)(6) of her federal constitutional claims under 42
U.S.C. § 1983, and her claims under RICO, the federal anti-
racketeering statute, see 18 U.S.C. § 1962. The claims were
asserted against Connolly's employer, H.D. Goodall Hospital, Inc.,
and three of its managing employees. In a clear and well reasoned
written order, the district court granted defendants' motion to
dismiss because the facts alleged in support of Connolly's
constitutional claims could not conceivably support a finding of
state action on the part of the named defendants, see Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982), and because the facts
alleged in support of Connolly's RICO claim could not conceivably
lead to a determination that defendants functioned as a RICO
enterprise and engaged in a pattern of racketeering activity,
see 18 U.S.C. § 1962(d); Doyle v. Hasbro, Inc., 103 F.3d 186, 190
(1st Cir. 1996).
Connolly's appellate brief does not come close to calling
into question the correctness of the district court's reasoning, so
we are content to affirm on the merits without saying anything
more. See, e.g., Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d
1, 2 (1st Cir. 2004). Instead, we confine our remarks to the
question of appellate jurisdiction, which the procedural history of
the case has put into question.
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This case, which contains supplemental state law claims
in addition to the federal claims just discussed, was originally
filed in Maine Superior Court. Defendants timely removed and, as
explained, prevailed on their motion to dismiss the federal claims.
In its dismissal order, the district court declined to exercise
supplemental jurisdiction over the state law claims, see 28 U.S.C.
§ 1367(c)(3), and, instead of simply dismissing without prejudice,
ordered that those claims be remanded to state court, see,
e.g., St. John v. Int'l Assoc. of Machinists and Aerospace Workers,
Local No. 1010, Dist. No. 118, Local Lodge No. 254, 139 F.3d 1214,
1217 (8th Cir. 1998) (endorsing a remand under similar
circumstances). After Connolly filed her notice of appeal, the
court issued a procedural order vacating its already-effectuated
remand as "premature" -- the court apparently wished to avoid any
duplicative litigation problems that might arise were we to vacate
the judgment dismissing Connolly's federal claims and reinstate
this case as a live action on its docket -- and directing its clerk
to recall the case from the state court "for purposes of further
proceedings in connection with" the appeal. The clerk complied and
the state court cooperated.
Two questions arise in connection with this course of
events. Did the district court have the power to vacate its
remand? Compare Fed. Deposit Ins. Corp. v. Santiago Plaza, 598
F.2d 634, 636 (1st Cir. 1979) (per curiam) (construing the text of
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28 U.S.C. § 1447(d) -- a statute not at issue where, as here,
remand is not premised on the jurisdictional or procedural defects
specified in 28 U.S.C. § 1447(c)), see Thermston Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 345-52 (1976) -- as divesting the
district court of jurisdiction to take any further action once a
district court "has decided to remand a case and has so notified
the state court"), with Vargas v. Geologistics Americas, Inc., 284
F.3d 232, 235 (1st Cir. 2002) (tacitly assuming that a district
court has the power to enter a judgment with prejudice on claims
erroneously remanded to state court). And if so, did the court's
actions render non-final its remand order and convert the present
proceedings into an unauthorized interlocutory appeal over which we
would lack jurisdiction? See Nichols v. Cadle Co., 101 F.3d 1448,
1449 n.1 (1st Cir. 1996) (per curiam) ("Ordinarily, a judgment is
final (and, thus, appealable under 28 U.S.C. § 1291) only if it
conclusively determines all claims of all parties to the action."
(citation omitted)).
On our reading of the record, there is jurisdiction to
reach the merits of Connolly's appeal. If the district court
lacked the power to vacate its remand (a matter that has not been
adequately briefed and that we will not decide), there is no
jurisdictional problem because no live claims remain pending in
federal court. But if the court had the power to vacate the
remand, it is clear to us that the court did not intend to revisit
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the merits of its judgment that the supplemental state claims ought
to be remanded. Rather, the court intended only to undo the
execution of the remand so as to avoid the duplicative litigation
issue we have noted. Cf. Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 712 (1996) ("[A] decision is ordinarily considered final
. . . if it 'ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.'") (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)). In these circumstances,
the remand order, although not yet executed, remains final.
Affirmed.
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