Unpublished Disposition, 927 F.2d 609 (9th Cir. 1990)

No. 90-70447.

United States Court of Appeals, Ninth Circuit.

Petition for Writ of Mandamus United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding.

PETITION GRANTED IN PART, DENIED IN PART.

ORDER^* 

Before SCHROEDER, PREGERSON, and T.G. NELSON, Circuit Judges

Petitioners seek a writ of mandamus requiring the district court to vacate its order filed June 29, 1990, which remanded all but Counts III and IV of plaintiff Paul Craig Engleman's action to state court. We grant the petition in part with directions to the district court to determine whether Counts V through IX of Engleman's complaint are "completely pre-empted" by Sec. 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185.

The district court remanded Counts V through IX of Engleman's complaint to state court. In remanding these counts, the district court did not address House Foods Hawaii Corporation's argument that they are "completely pre-empted" by Sec. 301 of the LMRA. If they are "completely pre-empted" by Sec. 301, the district court had no discretion to remand them to state court. See Grote v. Trans World Airline, Inc., 905 F.2d 1307, 1310 (9th Cir.) (pre-emption of state-law claims under the Railway Labor Act), cert. denied, 111 S. Ct. 386 (1990); Price v. PSA, Inc., 829 F.2d 871, 874-75 (9th Cir. 1987) (same), cert. denied, 486 U.S. 1006 (1988).

"The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402 (1976). In determining whether to issue the writ of mandamus, we consider the adequacy of alternative means by which the petitioner may attain the relief he or she desires. Id. at 403; Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir. 1977).

Here, the district court has indicated that it is willing to reconsider its remand order. See November 19, 1990 Letter of Judge Alan C. Kay. On reconsideration, the district court could determine whether Counts V through IX are "completely pre-empted" by Sec. 301 of the LMRA, and thus were improperly remanded. Therefore, it would be premature for this panel to decide the pre-emption issue through mandamus review. Instead, we grant the petition for mandamus only to the extent that we direct the district court to consider whether Counts V through IX are completely pre-empted by Sec. 301 of the LMRA. In all other respects, we deny the petition for mandamus.

SO ORDERED.