Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1990)

Betty PERUGINI, Plaintiff-Appellant,v.SAFEWAY STORES, INC., et al., Defendants-Appellees.

No. 90-16418.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


Betty Perugini appeals the district court's denial of her motion to remand this action against her employer and her union to state court. Perugini contends that the district lacked removal jurisdiction over this action. We review de novo, Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir. 1988), and we affirm.

On June 13, 1989, Perugini filed this action in the Superior Court in Butte County, California. Perugini's complaint stated three causes of action: (1) sex discrimination in employment and unfair labor practices; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress. Perugini's state court complaint was almost identical to a complaint she had filed against the same defendants in the federal district court for the Northern District of California on September 13, 1988. Indeed, the only difference between the two complaints is the statutory basis for her discrimination claim.1  Judgment in the federal action was entered on March 17, 1989, nearly three months before Perugini filed her complaint in state court. Perugini v. Safeway Stores, Inc., et al., No. 88-3610-WHO (N.D. Cal. March. 17, 1989).2  Therefore, on September 12, 1989, the defendants removed Perugini's state court action to the federal district court for the Eastern District of California. On September 10, 1990, the district court denied Perugini's motion to remand the entire action to state court, remanded her sex discrimination claim to state court, and dismissed her claims for intentional and negligent infliction of emotional distress and unfair labor practices on the ground of res judicata.

On appeal, Perugini contends only that the district court erred in finding that federal removal jurisdiction was proper and therefore in denying her motion to remand the entire action to state court. This contention is meritless.

Where a plaintiff files state claims after a federal judgment has been entered against her on essentially the same claims, the district court may invoke the artful pleading doctrine as a basis for federal jurisdiction and dismiss the claims under the principles of res judicata. Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1375-76 (9th Cir.) (citing Federated Dep't Stores v. Moitie, 452 U.S. 394 (1981)), cert. denied, 484 U.S. 850 (1987); Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1432 (9th Cir. 1984).

Perugini cannot circumvent the res judicata effect of the federal judgment entered against her in the Northern District of California by refiling the same claims in state court. See Sullivan, 813 F.2d at 1375-76; Salveson, 731 F.2d at 1432. Moreover, the Northern District judgment is final for purposes of res judicata despite the pendency of an appeal from that judgment. See Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941) ("until and unless" a federal judgment is reversed, an appeal does not detract from its "decisiveness and finality"); Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir. 1988) (pending appeal does not alter preclusive effect of district court judgment). Accordingly, the district court did not err in finding that removal jurisdiction was proper.3 



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


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


In the federal complaint Perugini asserted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as the basis for this claim; in the state complaint, she asserted the California Fair Employment and Housing Act, Cal. Gov't Code Sec. 12940, et seq


An appeal from that judgment is currently pending before this court. Perugini v. Safeway Stores, Inc., et al., No. 89-15425


We note that the district court's order stated that removal jurisdiction was proper because Perugini's claims for emotional distress are preempted by section 301 of the Labor Management Relations Act. We need not and have not reached this issue, which currently is being considered by another panel in Perugini's appeal from the judgment entered in the Northern District of California. See Perugini v. Safeway Stores, Inc., et al., No. 89-15425. Nevertheless, we can affirm the district court's decision on any basis supported by the record. Kruso v. International Tel. & Tel., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990)