NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 31 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
BRUCE BIERMAN, No. 11-15262
Plaintiff - Appellee, D.C. No. 3:10-cv-04203-MMC
v.
MEMORANDUM *
TOSHIBA CORPORATION,
Defendant,
and
TOSHIBA AMERICA INFORMATION
SYSTEMS, INC.,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted March 12, 2012
San Francisco, California
Before: WALLACE, D.W. NELSON, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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
1
Under Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422
(2007), courts have “leeway to choose among threshold grounds for denying
audience to a case on the merits.” Id. at 431 (internal quotation marks and citation
omitted). Because we affirm the district court’s dismissal on the ground that the
case may be remanded to state court, we express no view as to whether there was
any federal subject matter jurisdiction in the first place for the district to exercise
federal jurisdiction over the two claims which were dismissed.
2
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 motion for reconsideration was also
not an abuse of discretion. The district court correctly noted that neither the
complaint in this case nor in the purportedly related IBM case “suggests that
Toshiba and IBM were in some manner working together or were even aware of
each other’s alleged misappropriation.” The district court was therefore justified in
finding that it was a matter of mere “speculation” that the cases would be deemed
related and the second district judge would exercise supplemental jurisdiction over
these state law claims. Because the district court again identified the proper legal
standard and Toshiba cannot claim that the district court’s understanding of the
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.2
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.
3
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 permitted by Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422 (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
Cir. 2007) (en banc). It would have been better practice to assess the district court’s
power to render this merits decision because the confirmation of original
jurisdiction is logically prior to deciding whether it was proper to decline
1
supplemental jurisdiction, and because Bierman’s actions cannot relieve us of our
duty to assess the propriety of our subject matter jurisdiction.
I would have joined the Second, Fourth, and Sixth Circuits in holding that
claims preempted by § 301(a) of the Copyright Act are regarded as arising under
federal law, and therefore can support removal. See Briarpatch Ltd., L.P. v.
Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004); Rosciszewski v. Arete
Assocs., Inc., 1 F.3d 225, 232 (4th Cir. 1993); Ritchie v. Williams, 395 F.3d 283,
286–87 (6th Cir. 2005). I would have held that Bierman’s complaint did plead
claims that were so preempted. Only then would I have addressed the district
court’s decision not to exercise supplemental jurisdiction. I concur in the
majority’s judgment, but I do not endorse its approach.
2