Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^** 

Adebowale Osijo appeals the district court's grant of summary judgment to appellee Golden Gate University. The district court held that Osijo did not show any evidence that would support his claim for discrimination. In this appeal, Osijo argues that he did not allege discrimination in his causes of action. Instead, he argues that his claim is based on the University's harassment of him. Because Osijo has failed to state any federal cause of action, we affirm as to the dismissal of his federal complaint. However, we reverse and remand the district court's actions to the extent that the district court dismissed Osijo's state complaint. We direct the district court to remand the state complaint to the Superior Court of California for further adjudication.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 629 (9th Cir. 1987). Further, we must determine, viewing the evidence in the light most favorable to appellant, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

ANALYSIS

The district court's eight-page order thoroughly and correctly explained that Osijo had failed to demonstrate a prima facie case of either discriminatory impact or purpose. Appellant responds in his brief to this court that his claim is for harassment, not discrimination. Not only does he contend that discrimination is irrelevant to this case, but he argues that the district court intentionally focused on discrimination so as to avoid the harassment issue.

What appellant does not comprehend is that the district court was concentrating on the issue of discrimination for the simple reason that appellant has stated no other cognizable federal legal claim. He argues that Golden Gate harassed him, that it acted unfairly in his regard, and that its policies with regard to foreign students are too meddling. Assuming that this may be true for purposes of argument only, it is of no import because Osijo has not raised any federal legal claims.

As we are well aware that federal jurisdiction may prove a difficult area for pro se litigants, we briefly set out the governing rule. A federal court must have subject matter jurisdiction over a case in order to hear it. U.S. Const. art. III, Sec. 2. In order to have subject matter jurisdiction over a case, the action must "aris [e] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. If the case does not present a federal question, then it may be heard only if it comes within another statutory section. See 28 U.S.C. §§ 1332-66. Osijo's claim for harassment does not fall under any of these sections. This is what the district court meant by its statement: "on these facts no cause of action is stated other than some manner of state tort claim, over which this Court lacks subject matter jurisdiction." Order at 8. That appellant dislikes Golden Gate's rules and that he feels ill-used are unfortunate; neither sentiment, however, raises a federal cause of action.

Osijo may have a state tort or contract cause of action under California law. This action is the consolidation of two actions. The federal complaint originally filed in the Northern District of California has no merit as we have described above. The other was filed in California State Court. The state action was removed to federal court by Golden Gate University. Once it is determined that the federal court has no subject matter jurisdiction over a removed action, the correct procedure is to remand that action to the state court for further proceedings. 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded"). Therefore, we vacate the district court's judgment with respect to the removed state claims. We remand this case to the district court so that it may properly remand the state complaint to the state court for further adjudication. We express no opinion as to the validity of any state claims Osijo may have.

AFFIRMED in part; VACATED AND REMANDED in part.