Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Brian F. BURNEY, Plaintiff-Appellee,v.Glenn NAPIERSKIE, II, Nalco Plumbing, Defendants-Appellants.

No. 90-55081.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1991.Decided March 14, 1991.

Appeal from the United States District Court for the Southern District of California, No. CA-89-336-JLI-IEG; J. Lawrence Irving, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before GOODWIN, HUG and FARRIS, Circuit Judges.


MEMORANDUM* 

This action was originally filed in the Superior Court of California, County of San Diego, Northern County Branch, Case No. N42799. It was removed by the defendants to federal court pursuant to 28 U.S.C. § 1446, based on federal question jurisdiction under Section 301 of the Labor-Management Relations Act.

The First Cause of Action alleged Nalco Plumbing's wrongful failure to pay overtime compensation. The district court correctly dismissed this claim as preempted by section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a). Adjudication of that claim clearly required reference to the collective bargaining agreement. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988).

The Second Cause of Action set forth claims of emotional distress resulting from Napierskie's alleged vindictive actions after Burney's termination from employment with Nalco Plumbing. The district court remanded these actions as pendant state claims. The remand was clearly not pursuant to 28 U.S.C. § 1447(c) because the district court had jurisdiction of the First Cause of Action. The appellants contend that the district court was required to retain the Second Cause of Action and rule on the preemption of all or part of that claim. However, that claim is not completely preempted because the allegations in the complaint of that Cause of Action do not necessarily require interpretation of a collective bargaining agreement. Id.

We are therefore simply confronted with the question of whether the district court abused its discretion in remanding a pendant state claim. See Survival Systems v. U.S. District Court, 825 F.2d 1416, 1417-18 (9th Cir. 1987), cert. denied, 484 U.S. 1042 (1988). The issue of preemption as a defense to the Second Cause of Action, if it develops from the facts during the course of state trial proceedings, is a matter to be determined by the state court. The ruling of the district court simply means that the allegations of the Second Cause of Action in the complaint do not reveal that the claim is completely preempted, requiring retention of federal jurisdiction. We affirm the judgment of the district court.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3