Quebell P. Parker v. Scrap Metal Processors, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2006
No. 05-16904 THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 02-00925-CV-BMM-1

QUEBELL P. PARKER,
SANDRA SKYPEK,
CHARLES PARKER,
individually, as attorneys in fact for
Quebell Parker, and in the name of
Quebell Parker,
Plaintiffs-Appellants,

versus

SCRAP METAL PROCESSORS, INC.,
a Georgia corporation,
L.B. RECYCLING, INC.,
a Georgia corporation
J. WAYNE MADDOX,
individually and as the successor in
interest to L.B. Recycling, Inc.,
Defendants-Appellees.

_________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(October 24, 2006)
Before BIRCH, PRYOR and FAY, Circuit Judges.

FAY, Circuit Judge:

Quebell Parker and her children, Sandra Skypek and Charles Parker

(“plaintiff”), appeal the district court’s denial of her Motion to Show Cause as to

why Scrap Metal Processors, Inc. (“SMP”) and J. Wayne Maddox (together:

“defendant”), have failed to comply with this Court’s order in Parker v. Scrap

Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004), to obtain a solid waste

handling permit and to implement a legally sufficient Storm Water Pollution

Prevention Plan (“SWPPP”). Additionally, this Court ordered a retrial as to

damages only, on plaintiff’s state tort claims. Rather than conduct the retrial, the

district court dismissed the case for lack of subject-matter jurisdiction pursuant to

28 U.S.C. § 1367(c), which the plaintiff also appeals. For the reasons set forth

below, we reverse as to the dismissal for lack of subject-matter jurisdiction and the

denial of the motion to show cause with regard to obtaining a solid waste handling

permit. However, we affirm, without prejudice, the district court’s denial of the

motion to show cause as to the implementation of the SWPPP.

I. BACKGROUND

Plaintiff’s family has owned the property at 9144 Washington Street,

Covington, Georgia (“Parker property”) for approximately fifty years. The

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adjacent property, at 8194 Washington Street (“defendant property”), has had a

junkyard/scrap metal yard operating on it since the 1960s or 1970s. J. Wayne

Maddox took over the junkyard and scrap metal yard operation in or about 1990,

and acquired ownership of the property in 1994.

Plaintiff filed this action on April 10, 2002, against defendant and its

predecessors in interest, alleging negligence, negligence per se, nuisance, trespass,

violations of the Clean Water Act (“CWA”) 33 U.S.C. §§ 1251-1386, the

Resource Conservation and Recovery Act (“RCRA”) 42 U.S.C. §§ 6901-6992k,

and various state environmental statutes.

On August 8, 2003, after a jury trial, the Northern District of Georgia

entered judgment in favor of plaintiff on all counts. Defendant was ordered to pay

a total of $1 million in damages to the plaintiff, and pay civil fines for its CWA

and RCRA violations to the government. Defendant was further ordered to

implement a Storm Water Pollution Prevention Plan, and to obtain a solid waste

handling permit from the Georgia Environmental Protection Division (“EPD”).

The defendant appealed the district court’s findings of liability under the

CWA and the RCRA, as well as the award of damages. Parker v. Scrap Metal

Processors, Inc., 386 F.3d 993, 1000 (11th Cir. 2004). On September 28, 2004,

this Court upheld the findings of liability based upon the CWA and the RCRA, but

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reversed the damages award because the district court did not instruct the jury that

damages were only recoverable by a party that owned or occupied the Parker

property during the relevant time period. Id. at 1018. Although Mrs. Parker’s

children were included in the damage award, they did not own or occupy the

Parker property during the relevant time period. Accordingly, this Court ordered

the district court hold a new trial on damages. Id. At 1019.1 On remand the

plaintiffs sought damages as to Mrs. Parker only.

On September 6, 2005, the district court ordered the parties to submit briefs

addressing whether the court should exercise subject-matter jurisdiction over the

remaining state law damage claim. On September 23, 2005, plaintiffs submitted

their motion to require defendants to show cause as to why the district court

should not hold defendants in contempt for failing to comply with its August 8,

2003 order. Plaintiffs alleged the defendants had failed to implement a legally

sufficient SWPPP and had not obtained a solid waste handling permit, as per the

orders of the district court and this Court.

1. This Court reversed only the damage awards as to the state law claims of nuisance, trespass,
negligence, negligence per se and punitive damages, but upheld the district court’s monetary
judgment on the Georgia Hazardous Site Response Act contribution and attorney’s fees. Parker,
386 F.3d at 1019, footnote 35.

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 On December 13, 2005, the district court entered an order denying the

plaintiff’s motion to show cause. The district court reasoned: (1) under RCRA,

defendants are deemed to have a permit-by-rule and do not need any other solid

waste handling permits; and (2) under the CWA, plaintiffs failed to provide clear

and convincing evidence that defendants were in violation of the district court’s

order to develop and implement a legally sufficient SWPPP.

The district court also declined to exercise subject-matter jurisdiction over

the new trial on damages, dismissing the action without prejudice, so it could be

refiled in Georgia State Court. This appeal followed.

II. STANDARD OF REVIEW

There are three issues presented on appeal:

I. Whether the district court erred in denying plaintiff’s motion to show

cause as to why defendant had not obtained a solid waste handling permit.

II. Whether the district court erred in denying plaintiff’s motion to show

cause as to why defendant had not implemented a legally sufficient Storm Water

Pollution Prevention Plan.

III. Whether the district court erred in declining to exercise supplemental

jurisdiction over the new trial on damages.

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 We review the district court’s denial of the plaintiff’s motion to show cause

for abuse of discretion. In re Newton, 718 F.2d 1015, 1022 (11th Cir. 1983);

United States v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). A defendant’s present

ability to comply with a court order is subject to the clearly erroneous standard of

review. United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988); Citronelle-

Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991); Combs

v. Ryan’s Coal Co., Inc., 785 F.2d 970, 983 (11th Cir. 1986); Fed.R.Civ.P. 52(a).

We review the district court’s decision not to exercise supplemental

jurisdiction for abuse of discretion. Ingram v. School Bd. of Miami-Dade County,

167 Fed.Appx. 107, 108 (11th Cir. 2006) (citing Lucero v. Trosch, 121 F.3d 591,

598 (11th Cir. 1997) (“As a practical matter, the district court is in the best

position to weigh the competing interests set forth in § 1367(c) and [United Mine

Workers v. Gibbs, 383 U.S. 715, 86 S.Ct 1130, 16 L.Ed.2d 218 (1966)] in

deciding whether it is appropriate to exercise supplemental jurisdiction.”)). Both

parties agree that the district court had power to exercise subject-matter

jurisdiction under 28 U.S.C. § 1367(a).

III. ANALYSIS

Plaintiff argues the district court erred when it denied plaintiff’s motion to

show cause as to why defendant should not be held in contempt for violating the

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district court’s order to obtain a solid waste handling permit, and to implement a

legally sufficient SWPPP. Plaintiff further argues the district court erred when it

dismissed plaintiff’s case. We consider each of these issues in turn.

A. Solid Waste Handling Permit

On August 8, 2003, the district court found defendant in violation of the

RCRA, and ordered that defendant take “all reasonable steps to obtain a solid

waste handling permit from the director of the EPD.” On appeal, this Court

upheld the district court’s finding of liability under the RCRA and affirmed the

district court’s order requiring the obtaining of a solid waste handling permit.

Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1012 (11th Cir. 2004).

Because we concluded in that case the defendant must apply for and obtain a solid

waste handling permit, we now briefly review the analysis for that decision.

The RCRA allows approved states to implement and enforce its provisions.

42 U.S.C.A. § 6926(b). Georgia received approval to do so in 1979, and enacted

the Comprehensive Solid Waste Management Act (“SWMA”), Ga. Code Ann. §§

12-8-20 through 12-8-59.2, to regulate solid and hazardous waste. Under the

SWMA, a person generally must obtain a permit to handle solid waste. Parker,

386 F.3d at 1011, citing Ga. Code. Ann. § 12-8-24.

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 Because the scrap metal and other materials on defendant’s property were

found to be within Georgia’s broad definition of solid waste, defendant was

required to have a solid waste handling permit unless an exception to the permit

requirement applied. Parker, 386 F.3d at 1011. Defendant contended the

materials on the property were actually “recovered materials,”2 making the SMP

facility a “recovered materials processing facility,”3 eliminating the need for a

solid waste handling permit because the SWMA excludes recovered materials

from the definition of solid waste. Ga. Code Ann. § 12-8-22(33); Ga. Comp. R. &

Regs. r. 391-3-4-.04(7)(a).

However, even “recovered materials,” require a solid waste handling permit

if they are “accumulated speculatively.” Parker, 386 F.3d at 1012, citing Ga.

Comp. R. & Regs. r. 391-3-4-.04(7)(b). To prove materials are not accumulated

speculatively, defendant would have to show “during the preceding 90 days the

amount of material that is recycled, sold, used, or reused equals at least 60 percent

by weight or volume of the material received during that 90-day period and 60

2. “‘Recovered Materials’ means those materials which have known use, reuse, or recycling
potential; can be feasibly used, reused or recycled; and have been diverted or removed from the
solid waste stream for sale, use reuse, or recycling, whether or not requiring subsequent
separation and processing.” Ga. Comp. R. & Regs. r. 391-3-4-.01(55).

3. A “recovered materials processing facility” is “a facility engaged solely in the storage,
processing, and resale or reuse of recovered materials.” Ga. Comp. R. & Regs. r. 391-3-4-
.01(56).

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percent by weight or volume of all material proviously (sic) received and not

recycled, sold, used, or reused and carried forward into that 90-day period.” Ga.

Comp. R. & Regs. r. 391-3-4-.04(7)(c). The district court found, and this Court

upheld, defendant’s waste was accumulated speculatively and must comply with

all applicable regulations, which include applying for and obtaining a solid waste

handling permit. Parker, 386 F.3d at 1012.

On a contempt motion, the movant bears the initial burden of proving, by

clear and convincing evidence, the defendant’s noncompliance with a court order.

United States v. Roberts, 858 F.2d 698, 700 (11th Cir. 1988). In the instant case,

plaintiff showed that there is no record the defendant has either applied or has

attempted to apply for a solid waste handling permit with the EPD.

Once the movant makes a prima facie showing of a violation, the burden

shifts to the alleged contemnor to produce detailed evidence specifically

explaining why he cannot comply. Roberts, 858 F.2d at 701, citingUnited States

v. Rylander, 460 U.S. 752, 755, 103 S.Ct. 1548, 1551, 75 L.Ed.2d 521 (1983).

The burden of production is not satisfied by a mere assertion of inability. United

States v. Hayes, 722 F.2d 723 (11th Cir. 1984). Defendant argues they are

covered by a permit-by-rule, pursuant to GA. Comp. R. & Regs. r. 391-3-4-.06.

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Defendant further argues that the EPD acknowledged this fact, and thus, no solid

waste handling permit is required. We disagree.

A permit-by-rule is not sufficient if materials are accumulated speculatively.

Ga. Comp. R. & Regs. r. 391-3-4-.04(7)(b). In its argument, defendant relies on

two letters from the Program Manager of the EPD’s Solid Waste Management

Program, Harold C. Gillespie, and on an affidavit from EPD employee, Michael

Rodock. We consider each of these items in turn.

The first letter from Mr. Gillespie, dated July 28, 2003,4 indicates that “[i]f

[defendant is] only engaged in the collection or handling of recyclable materials,

like metals... I am not aware of any other permits that would be required...” Not

only does this letter ignore the issue of whether materials are “accumulated

speculatively” on defendant’s property, it also predates the district court’s order.

It does not negate that the district court and this Court found that materials are

accumulated speculatively, nor does it overrule this Court’s order to obtain a solid

waste handling permit.

Mr. Gillespie’s second letter is dated November 14, 2003. It states that it is

a follow-up to his letter of July 28. It provides, in pertinent part, “My [July 28]

response was solely based upon the information provided in your July 23, 2003

4. Eleven days before the district court’s August 8 order to obtain a solid waste handling permit.

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letter and did not address the possibility that recovered materials may be

accumulated speculatively or disposed of at your facility. In such cases, recovered

materials are considered solid waste and a solid waste handling permit is

required” (emphasis added). This letter clearly states that if recovered materials

are accumulated speculatively, a solid waste handling permit is required. Thus,

because the district court and this Court both found that materials are accumulated

speculatively, defendant must obtain a solid waste handling permit.

The next piece of evidence defendant points to is an affidavit by Michael

Rodock, the EPD employee responsible for inspecting facilities to determine what

type of permit, if any, the facility requires. Mr. Rodock’s affidavit provides

“[defendant’s] [f]acility has been deemed to have a solid waste handling permit-

by-rule... [defendant’s] permitting status is reflected in correspondence from EPD

dated November 14, 2003, July, 28, 2003... and no other solid waste handling

permit is necessary.” It further provides Mr. Rodock “visited the [f]acility on

October 6, 2005... [and] [i]t does not appear that there are recovered materials

accumulated speculatively or disposed at the [f]acility.” In consideration of this

affidavit, the district court found that defendant was covered by a permit-by-rule,

and application for a solid waste handling permit was not necessary.

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 Appellate courts have the power to issue mandates which are commands

that cannot be ignored. Absent a Supreme Court decision to the contrary, district

courts are compelled to follow mandates of appellate courts. Litman v.

Massachusetts Mutual Life Insurance Company, 825 F.2d 1506, 1508 (11th Cir.

1987) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293,

40 L.Ed. 414 (1895); Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed.

1167 (1838)). “A district court when acting under an appellate court’s mandate,

cannot vary it, or examine it for any other purpose than execution; or give any

other or further relief; or review it, even for apparent error, upon a matter decided

on appeal; or intermeddle with it, further than to settle so much as has been

remanded.” Id. At 1510-1511, (citing In re Sanford Fork & Tool Co., 160 U.S.

247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895); Sibbald v. United States, 37

U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838)) (internal quotes omitted).

In the instant case, this Court affirmed the finding that recovered materials

were being accumulated speculatively, and issued a mandate ordering defendant to

obtain a solid waste handling permit. It is not within the district court’s power to

second guess its or this Court’s conclusion or revise this Court’s order. The fact

that Mr. Rodock disagrees with this conclusion is irrelevant, even though he is an

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EPD employee.5 This Court’s order to obtain a solid waste handling permit still

stands, and neither the district court nor the defendant is permitted to ignore or

modify that order. Thus, we conclude the district court abused its discretion in

denying plaintiff’s motion to show cause and finding that defendant was not

required to seek a solid waste handling permit.6

B. Storm Water Pollution Prevention Plan

On August 8, 2003, after finding defendant liable under the CWA, the

district court ordered the defendant to develop and implement a legally sufficient

Storm Water Pollution Prevention Plan. This Court affirmed that order in Parker,

386 F.3d at 1010.

As stated previously, on a motion to show cause the movant bears the initial

burden of proving, by clear and convincing evidence, that the alleged contemnors

are in violation of a court order. Reynolds v. Alabama Dept. of Transp., 10

F.Supp.2d 1263, 1273 (M.D. Ala. 1998) (citing U.S. v. Roberts, 858 F.2d 698, 700

(11th Cir. 1988)); Laitram Corp. V. Cambridge Wire Cloth Co., 863 F.2d 855, 867

5. Plaintiff also alleges that defendant did not follow the proper procedure to obtain a permit-by-
rule for the SMP facility. As this is not material to our analysis, we do not reach this issue.

6. We recognize the possibility that the activity conducted on the defendant’s property may have
changed. This would require specific findings by the district court and would not eliminate any
period of contempt between the order requiring defendant to obtain a solid waste handling permit
and the elimination of the activity giving rise to the order.

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(C.A. Fed. 1988); United States v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984)

(citing Northside Realty Associates v. United States, 605 F.2d 1348, 1352 (5th

Cir. 1979). In its December 13, 2005 order, the district court found that plaintiffs

did not produce clear and convincing evidence that defendant had violated of the

district court’s order to develop and implement a legally sufficient SWPPP.

The district court relied upon a November 3, 2005 affidavit of Jason

Maddox, president of SMP and son of defendant J. Wayne Maddox, in reaching its

decision. The Maddox affidavit explains that defendant has not been able to

construct a storm water detention pond as per the SWPPP, due to financial

constraints. Such constraints include legal fees to cover litigation as well as the

inability of SMP and J. Wayne Maddox to procure loans due to this litigation.

Jason Maddox’s affidavit also describes defendant’s efforts to implement

the SWPPP. SMP has constructed a curb around the perimeter of its property and

pumps collected storm water as necessary until it can afford to construct the

required storm water detention pond, which it estimated to occur within 30-90

days of the affidavit. Plaintiff offers no evidence to the contrary. The facts that

defendant has constructed a curb and is pumping storm water as necessary show

there has been an effort to comply with the court order. We do not believe

defendant’s failure to construct a storm water detention pond as of the show cause

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hearing is enough to provide clear and convincing evidence that the defendant

violated a court order.7

Based upon the record, we conclude the district court did not abuse its

discretion when it found no violation of its order requiring the defendant to

implement a legally sufficient SWPPP. However, given that nearly a year has

passed since the district court’s ruling, this is without prejudice to the matter being

revisited upon proper motion.

C. Subject-Matter Jurisdiction

The district court has original jurisdiction over plaintiff’s claims under the

RCRA and CWA pursuant to 28 U.S.C. § 1331.8 Jurisdiction over the remaining

state law claims comes under the doctrine of supplemental or pendent jurisdiction

outlined in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct.

1130 (1966), and codified in 28 U.S.C. § 1367.9 The statute reflects a dichotomy

7. Plaintiff’s brief cites to various case law stating a self-induced inability to comply with a court
order is not a valid defense to contempt. Chicago Truck Drivers v. Bhd. Labor Leasing, 207 F.3d
500, 506 (8th Cir. 2000); In re Power Recovery Sys., Inc., 950 F.2d 798, 803 (1st Cir. 1991);
Federal Trade Commission v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999).
Under the facts of this case, we find this law inapplicable.

8. “The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331

9. “ Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related to claims in the

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between a district court’s power to exercise supplemental jurisdiction, § 1367(a),

and its discretion not to exercise such jurisdiction, § 1367(c). Lucero v. Trosch,

121 F.3d 591, 597 (11th Cir. 1997); Palmer v. Hosp. Auth. of Randolph County,

22 F.3d 1559. 1563 (11th Cir. 1994). Section 1367(a) authorizes a court to hear

supplemental claims to the full extent allowed by the “case or controversy”

standard of Article III of the Constitution. Palmer, 22 F.3d at 1566. The

constitutional “case or controversy” standard confers supplemental jurisdiction

over all state claims which arise out of a common nucleus of operative fact with a

substantial federal claim. United Mine Workers of America v. Gibbs, 383 U.S.

715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Palmer, 22 F.3d at 1563-64

(a federal court has the power under section 1367(a) to exercise pendent

jurisdiction over state claims which arise from the same occurrence and involve

the same or similar evidence); L.A. Draper and Son v. Wheelabrator-Frye, Inc.,

735 F.2d 414, 427 (11th Cir. 1984) (a federal court may exercise pendent

jurisdiction over state law claims deriving from a common nucleus of operative

fact with a substantial federal claim).

action within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution. Such supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.” 28 U.S.C. § 1367(a).

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 In this case, the RCRA and CWA claims are the “substantial federal

claims,” and they arise out of a common nucleus of operative fact as the state

claims, namely, SMP’s operation of a junkyard adjacent to the Parker property.

Therefore, the district court has power to exercise supplemental jurisdiction over

plaintiff’s state law claims. Neither party disagrees with this conclusion. The

issue before the Court is whether the district court had discretion not to exercise

supplemental jurisdiction over the new trial on damages pursuant to section

1367(c). The district court has such discretion in four situations:

(1) the claim raises a novel or complex issue of state law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction

Whenever a federal court has supplemental jurisdiction under section

1367(a), that jurisdiction should be exercised unless section 1367(b) or (c)

applies.10 Palmer, 22 F.3d at 1569. Any one of the section 1367(c) factors is

sufficient to give the district court discretion to dismiss a case’s supplemental state

law claims. Id. We now consider each of the four section 1367(c) factors in turn.

10. Section 1367(b) does not apply in this case, as it deals with diversity jurisdiction under 28
U.S.C. § 1332.

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1. Novel or Complex Issue of State Law

The district court found that this case raises novel or complex issues of state

law. The district court reasoned the state law issues are novel and complex

because it was reversed in this Court’s prior decision, and because the parties have

filed new motions pertaining to Georgia state law. The issues the district court

refers to are a motion to invalidate fraudulent transfers under Georgia’s Uniform

Fraudulent Transfer Act, O.C.G.A. §§ 18-2-70, et seq., and plaintiff’s request to

have the district court appoint a receiver pursuant to O.C.G.A. § 18-2-77(3)(B),

and O.C.G.A. § 9-8-3. However, because plaintiff has agreed not to seek these

remedies in the district court, we do not reach the issue of whether these motions

raise issues of novel or complex state law. (Plaintiff’s Brief at 39). Therefore, we

look only at the new trial on damages to see if it raises novel or complex issues of

state law.

Generally, state tort claims are not considered novel or complex. See, e.g.,

Myers v. Richland County, 288 F.Supp.2d 1013, 1018 (D.N.D. 2003) (holding

breach of contract, defamation, and intentional infliction of emotional distress

claims did not raise novel or complex issues of state law); Holland v. O’Bryant,

964 F.Supp. 4, 7 (D.D.C. 1997) (holding false imprisonment, false arrest,

intentional infliction of emotional distress, assault and battery, and invasion of

18
privacy do not raise novel or complex issues of state law); Yeager v. Norwest

Multifamily, Inc., 865 F.Supp. 768, 771(M.D. Ala. 1994) (holding assault and

battery claims do not raise novel or complex issues of state law). Moreover,

negligence, nuisance, and property damage claims have been held as not raising

novel or complex issues of state law. INX Intern. Ink Co. v. Delphi Energy &

Engine Management Systems, 943 F.Supp 993, 997 (E.D. Wis. 1996).

Neither the district court nor the defendant cite to any authority holding the

state law claims in this case: negligence, negligence per se, nuisance, and trespass,

are considered novel or complex by a federal court. Moreover, neither the district

court nor the defendant cite to any authority holding a trial on damages alone, after

liability has been determined, raises novel or complex issues of state law. Because

this case involves only state tort claims and liability has already been determined,

we conclude a new trial on damages does not raise novel or complex issues of

state law.

2. State Claim Substantially Predominates Over Federal Claims

The district court also found the new trial on damages substantially

predominates over the claims over which it had original jurisdiction, because all

the federal claims have been resolved. “A federal court will find substantial

predominance when it appears that a state claim constitutes the real body of a case,

19
to which the federal claim is only an appendage.” McNerny v. Nebraska Public

Power Dist., 309 F.Supp.2d 1109, 1117-18 (D. Neb. 2004), (citing De Asencio v.

Tyson Foods, Inc., 342 F.3d 301, 309 (3rd Cir. 2003) (quoting Gibbs, 383 U.S. at

727, 86 S.Ct. at 1140)) (internal quotes omitted).

In L.A. Draper & Son v. Wheelabrator-Frye, Inc., this Court held “[o]nce

the district court had a directed verdict against the [federal] claims, it had only the

state claims left to consider; as would of course be true in any case in which the

federal claims are insufficient to create a jury issue. This predominance of the

state claim, by itself, is not determinative; the federal claims can drop out of the

case after trial yet dismissal of pendent state claims nevertheless might be an abuse

of discretion.” 735 F.2d 414, 428-29 (11th Cir. 1984).

In the instant case, the federal claims did not “drop out” after trial, but were

resolved in favor of the plaintiff, just as the state claims were. We find this case

even stronger than L.A. Draper. Here the federal claims have been resolved in

favor of the plaintiff- they have not dropped out of the case. Neither the district

court nor the defendant cite any authority holding that when all federal claims are

resolved in favor of the plaintiff, the plaintiff’s remaining state law claims

predominate and can be dismissed.

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 In light of L.A. Draper, and because liability has already been determined

with regard to all claims, we conclude that the new trial on state law damages does

not substantially predominate over the federal claims.

3. Dismissal of All Claims of Original Jurisdiction

The district court found that 28 U.S.C. § 1367(c)(3) allowed dismissal of the

plaintiff’s new trial on damages. The district court reasoned that even though the

statute reads that when “the district court has dismissed all claims over which it

has original jurisdiction,” Id. (emphasis added), it applies in this case because

“judgement has been entered on [the federal claims] and they are no longer the

subject of this proceeding.” We disagree.

A plain reading of the word “dismissed” in section 1367(c)(3) does not

include when all federal claims have been tried and resolved in favor of the

plaintiff. We can find no authority so holding. The defendant erroneously cites

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350. 108 S.Ct. 614, 619 (1988).

Not only was this case decided before supplemental jurisdiction was codified, but

the only reference to what would become section 1367(c)(3) states “when the

federal-law claims have dropped out of the lawsuit in its early stages and only

state-law claims remain, the federal court should decline the exercise of

jurisdiction by dismissing the case without prejudice.” Id. (citing Gibbs, 383 U.S.

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at 726-727, 86 S.Ct. at 1139) (footnote omitted). In the instant case, the federal

claims were tried and resolved in favor of the plaintiff, and did not drop out of the

lawsuit in its early stages.

Defendant also cites Lake County v. NRG/Recovery Group, Inc., 144

F.Supp.2d 1316, 1319 (M.D. Fla. 2001) (remand to state court was appropriate

where plaintiff’s amended complaint did not include any federal claims); Carr v.

Tatangelo, 156 F.supp.2d 1369, 1380 (M.D. Ga. 2001) (declining to exercise

supplemental jurisdiction over state claims after federal claims had been

dismissed); Hicks v. Moore, 422 F.3d 1246 (11th Cir. 2005) (after granting

summary judgment on all federal claims in favor of defendant, this Court noted the

district court’s discretion whether to remand plaintiff’s state law claims to state

court)11; Murphy v. Florida Keys Elec. Co-op. Ass’n, Inc., 329 F.3d 1311 (11th

Cir. 2003) (affirming summary judgment of defendant’s contribution claim in

favor of third-party defendant, and dismissing third-party defendant’s state law

counterclaim to state court, as per third-party defendant’s preference); Hardy v.

Birmingham Bd. of Educ., 954 F.2d 1546 (11th Cir. 1992) (dismissing state claims

of first impression after all federal claims had been dismissed). None of these

11. Contrary to defense counsel’s brief, the plaintiff’s federal claims were not affirmed in this
case. It is disappointing when a party misrepresents the holding in a case that could be binding
authority over this decision.

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decisions involve state law claims dismissed against a party’s preference after the

federal claims had been tried and resolved in that party’s favor. Thus, none of

these decisions provide support for the district court’s dismissal. Under the

peculiar facts of this case, we conclude that the district court abused its discretion

in dismissing the case under section 1367(c)(3).

4. Other Exceptional Circumstances or Compelling Reasons for Declining
Jurisdiction

The Gibbs factors of judicial economy, convenience, fairness to the parties,

and whether all claims would be expected to be tried together are evaluated under

section 1367(c)(4). The district court found these factors weigh in favor of

dismissing the case to state court. We address each factor in turn.

I. Judicial Economy

The district court found that judicial economy would best be served by

dismissing the case to state court because “[the district court] can foresee that in a

second trial it will again be called upon to make numerous rulings on strictly

Georgia law, and that it could very well again make a mistake which must again be

corrected by the Eleventh Circuit on a second appeal.” Apprehension of being

reversed on appeal is not a valid reason to dismiss a case for lack of subject matter

jurisdiction. The district court did not cite any authority to the contrary. Indeed,

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the policy of supplemental jurisdiction is to support the conservation of judicial

energy and avoid multiplicity in litigation. Rosado v. Wyman, 397 U.S. 397, 405,

90 S.Ct. 1207, 1214 (1970). Having a state court rehash issues that have already

been argued in federal court is far more likely to cause multiplicity in litigation

than the possibility of a future reversal in this case.

Other courts have held that a court should retain jurisdiction over state law

claims “where substantial judicial resources have already been committed, so that

sending the case to another court will cause a substantial duplication of effort.”

Graf v. Elgin, Joliet and Eastern Ry. Co., 790 F.2d 1341, 1347-1348 (7th Cir.

1986). This case was originally filed on April 4, 2002. There has been a four day

jury trial, as well as two pretrial hearings. There have been two appeals, both

heard on oral argument before this Court. The district court has handed down 18

orders, ruling on more than 40 motions. Clearly, substantial judicial resources

have already been committed to the resolution of this case. As such, this case

should not be dismissed in the interest of judicial economy.

ii. Convenience

The district court also found that convenience to the parties would favor

dismissal given that the parties have to travel from Newton County to Atlanta to

try the case in federal court. However, the distance from the property in question

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to the federal courthouse in Atlanta is a mere 36 miles. J. Wayne Maddox and

Jason Maddox are the only witnesses listed by the defendant, and plaintiffs are

prepared to have their witnesses endure the trek to Atlanta. Accordingly we

conclude any inconvenience would be minor and would not rise to the level of

“exceptional reasons or compelling circumstances” described in 28 U.S.C. §

1367(c)(4).

iii. Fairness to the Parties

The district court also found that fairness to the parties would be served by

dismissing the new trial on damages to state court. Plaintiffs argued it would be

unfair at this stage of the proceedings to require them to start over in state court.

Instead of analyzing why this is not the case, however, the district court explains

“having to retry this case in state court must be considered together with the part

that [plaintiff’s] counsel played in the need to retry the case... the court charged

the jury [in the first trial] as it was requested to do by the plaintiffs.” Since the

obligation of ruling on the propriety of jury instructions rests solely with the trial

judge, we find this a strange basis for dismissing a case.

Furthermore, because plaintiff has prevailed in federal court as to both

federal and state law claims, we conclude that fairness to the parties dictates that

the district court complete the case by handling the new trial on damages.

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iv. Whether All Claims Would be Expected to be Tried Together

Although not addressed by the district court, we now consider whether all

claims in this case would be expected to be tried together. The exercise of

supplemental jurisdiction in federal environmental claims, such as RCRA and

CERCLA claims, is favored. Green Hills (USA), L.L.C. v. Aaron Streit, Inc., 361

F.Supp.2d 81, 88 (E.D. N.Y. 2005); Raytheon Co. v. Mcgraw-Edison Co., Inc.,

979 F.Supp. 858, 866 (citing INX Intern. Ink Co. v. Delphi Energy & Engine

Management Systems, 943 F.Supp 993 (E.D. Wis. 1996)). Courts have found that

federal environmental and state nuisance claims derive from a common nucleus of

operative facts and the plaintiff would ordinarily be expected to try them all in one

proceeding. See State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d

Cir. 1985) (citing Gibbs, 383 U.S. at 728, 86 S.Ct. At 1140). Indeed, all the facts

in this case derive from the same nucleus of operative facts, specifically, the

operation of a junkyard adjacent to the Parker property, and plaintiff clearly

expects to have all claims tried together in federal court. We conclude plaintiff’s

expectation to resolve all claims together weighs in favor of retaining

supplemental jurisdiction over plaintiff’s state law claims.

Therefore, because the district court had the power to exercise supplemental

jurisdiction over plaintiff’s state law claims, and because none of the factors

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enumerated in 28 U.S.C. 1367(c) are persuasively present, we conclude the district

court abused its discretion when it dismissed the case for lack of subject-matter

jurisdiction. The district court’s order is vacated and it is instructed to hold the

new trial on damages as set forth in our earlier decision.

IV. CONCLUSION

Accordingly, we vacate and reverse the dismissal for lack of subject-matter

jurisdiction and remand for a new trial on damages in the district court. We

reverse the denial of the motion to show cause as to the solid waste handling

permit. We affirm, without prejudice, the denial of the motion to show cause as to

the Storm Water Pollution Prevention Plan.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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