In re: GALLATIN COUNTY, a political subdivision of the State of Montana v. United States District Court for the District of Montana, Butte

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GALLATIN COUNTY, a political
subdivision of the State of Montana;
GREGORY BISHOP, individually; CITY
OF BOZEMAN; SPECTRUM MEDICAL,
INC., a Montana corporation;
STEPHANIE CATRON, R.N.,
individually; JOYCE YOUNG,
GALLATIN COUNTY; GREGORY
BISHOP; CITY OF BOZEMAN;
STEPHANIE CATRON; JOYCE
YOUNG, R.N.; SPECTRUM MEDICAL,
INC.,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA,
BUTTE,
Respondent,
JAY ALANS JOSEPHS, as personal
represenative of the ESTATE OF
KATHRYN LEIBROCK-JOSEPHS;
No. 10-73908
D.C. No. 2:08-cv-00086-SEH
MEMORANDUM*
FILED
SEP 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Sandra Day O’Connor, Associate Justice for the
Supreme Court, sitting by designation.
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ANNIE JOSEPHS; SOPHIE JOSEPHS;
CALE JOSEPHS,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted September 1, 2011
Missoula, Montana
Before: O’CONNOR, Associate Justice, ** REINHARDT and THOMAS, Circuit
Judges.
Petitioners seek an interlocutory Writ of Mandamus ordering the district
court to exercise supplemental jurisdiction over state law claims in a pending
action. They contend that the court failed to comply with the mandate of this court
in Josephs v. Gallatin County et. al., No. 09-35126 (9th Cir. 2010) (“Gallatin I”).
We deny the petition.
The district court erred in concluding that the prior appeal did not require
reinstatement of the supplemental state law claims as directed by this Court when it
revived the federal claim on appeal in Gallatin I. See Craig v. M & O Agencies,
Inc., 496 F.3d 1047, 1060 n.5 (9th Cir. 2007). The district court’s conclusion to
the contrary violated the mandate of our Court in Gallatin I, which would normally

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require the issuance of a Writ of Mandate. Vizcaino v. U.S. District Court, 173
F.3d 713, 719 (9th Cir. 1999).
However, the district court made an alternative holding declining
supplemental jurisdiction in the exercise of its discretion, relying on 28 U.S.C. §
1367 (c) (2) and (c) (4). This separate basis for declining to exercise supplemental
jurisdiction did not violate Gallatin I’s mandate. Gallatin I cited Idaho v. Howmet
Turbine Component Co., 814 F.2d 1376 (9th Cir. 1987), for its holding that the
court “must reverse the decision to dismiss the state claims,” Gallatin I, 09-35126
at *4 (internal quotation and citation omitted). The apparent rationale for the
reinstatement of state law claims in Howmet Turbine was that the reason for their
dismissal–the dismissal of the federal claims that created the basis for the
supplemental jurisdiction–had been removed. There is nothing in Howmet
Turbine–or in Gallatin I–to suggest that the nature of the state and federal claims
inherently required that they be heard together in federal court, or that the district
court’s failure to exercise supplemental jurisdiction over the state law claims
involved in this case would be an abuse of discretion. See Acri v. Varian Assocs.,
Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc) (“[A] federal district court with
power to hear state law claims has discretion to keep, or decline to keep, them
under the conditions set out in § 1367(c) . . . .”).

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In short, the district court erred in concluding that Gallatin I did not require
reinstatement of the state law claims. However, once the state claims were
reinstated, there is nothing in Gallatin I that prevented the district court from
making the discretionary decision under 18 U.S.C. § 1367 not to exercise
supplemental jurisdiction. That decision is, of course, subject to later appeal upon
the entry of final judgment. See Oliver v. Ralphs Grocery Co., __ F.3d __, 2011
WL 3607014, *6 (9th Cir. 2011) (reviewing on appeal for abuse of discretion the
district court’s decision not to exercise supplemental jurisdiction). We need
not–and do not–review the merits of that decision now. We only need determine
whether the district court’s discretionary decision failed to implement “the letter
and the spirit of the mandate,” Vizcaino, 173 F.3d at 719(quoting Delgrosso v.
Spang & Co., 903 F.2d 234, 240 (3rd Cir. 1990), thus making mandamus an
appropriate remedy. We conclude it did not. See Perry v. Schwarzenegger, 602
F.3d 976, 980 (9th Cir. 2010)(recognizing the “principle that mandamus is
available to assure compliance with a prior mandate”).
PETITION DENIED.

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