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BOYLE v. CARNEGIE-MELLON UNIV.

October 10, 1985

William Boyle and Carrie Boyle, Plaintiffs,
v.
Carnegie-Mellon University and John Kordesich, Defendants


M.B. Cohill, Jr., C.J.


The opinion of the court was delivered by: COHILL

COHILL, C.J.

 Presently before us is Plaintiffs' Motion to Amend the Complaint, and, additionally, to remand this action to the Court of Common Pleas of Allegheny County, Pennsylvania.

 This action was originally brought by Plaintiffs in state court, asserting claims for wrongful discharge, intentional infliction of emotional distress, defamation, misrepresentation, age discrimination, breach of contract, tortious interference with contractual relations, and loss of consortium. The Complaint alleges that Plaintiff, William Boyle, an employee of Carnegie Mellon University ("CMU"), was wrongfully discharged in connection with alleged improper billings and theft, and because of age discrimination. Complaint, paras. 10-12, 13. The Complaint also alleges "discrimination in rehiring." Id. P 14.

 Defendants removed the case to this Court, basing removal on "Plaintiffs' assertion of age discrimination "in violation of the laws of the United States of America." Complaint, para. 13. The Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq. prohibits such discrimination.

 Plaintiffs have moved to dismiss from the complaint, by way of amendment, claims for defamation, age discrimination under both state and federal law, and interference with marital relations. Motion to Amend, paras. 5, 6. We will grant the motion.

 Plaintiffs have, in addition, moved for remand of the remaining claims to state court, based on two arguments. First, Plaintiffs assert that remand is appropriate under 28 U.S.C. § 1447 (c), providing for remand of cases improvidently removed. Alternatively, it would appear, Plaintiffs argue that where a narrowing of issues results in the dismissal of the sole federal claim after removal, the Court should exercise its discretion to remand the pendent state claims. Defendants oppose remand.

 DISCUSSION

 Improvident Removal

 Removal jurisdiction is derivative in nature. "If the state court lacks jurisdiction of the subject matter or of the parties, the Federal court acquires none, although it might in a like suit, originally brought there, have had jurisdiction." Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382, 42 S. Ct. 349, 351, 66 L. Ed. 671 (1922). Whether removal was proper or "improvident" in the instant case depends on whether the ADEA is enforceable in state as well as federal courts. If a federal statute is enforceable in both state and federal courts, the action would clearly be removable under 28 U.S.C. § 1441(b).

 In Kremer Chemical Construction Corp., 456 U.S. 461, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982), the Supreme Court left open the question of whether jurisdiction to entertain title VII cases is limited to federal courts. Id. at 479 n.20, 102 S. Ct. at 1896 n.20, 72 L. Ed. 2d 262 (1982). The Court of Appeals for the Third Circuit has not, to our knowledge, addressed this question. While courts have come to opposite conclusions on this question, we adopt the reasoning of those courts which have held that nothing in the language or structure of title VII mandates a conclusion that jurisdiction is exclusive. See, e.g., Patzer v. Board of Regents, 577 F. Supp. 1553, 1559 (W. D. Wis. 1984), rev'd on other grounds, 763 F.2d 851 (7th Cir. 1985); Greene v. County School Board, 524 F. Supp. 43, 44-45 (E.D. Va. 1981); Bennun v. Board of Governors, 413 F. Supp. 1274, 1280 (D. N.J. 1976). We believe this reasoning is equally persuasive in cases brought under the ADEA. But see Dyer v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985); Valenzuela v. Kraft, Inc., 739 F.2d 434, 435-36 (9th Cir. 1984); Dickinson v. Chrysler Corp., 456 F. Supp. 43, 45-48 (E. D. Mich. 1978). Thus, we hold that removal in this case was proper, and do not find section 1447(c) a proper ground for remanding the case.

 Other Grounds for Remand

 In the case at bar, the state and federal claims arise out of the same nucleus of operative facts. Thus, even after dismissal of the federal claim, (on motion of the Plaintiffs) we continue to have jurisdiction over the remaining state claims pursuant to the doctrine of pendent jurisdiction. See In re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966)), cert. denied sub nom. Sheet Metal Workers Int'l Ass'n v. Carter, 450 U.S. 949, 101 S. Ct. 1410, 67 L. Ed. 2d 378 (1981); Naylor v. Case & McGrath, 585 F.2d 557, 562 (2d Cir. 1978).

 Pendent jurisdiction, however, is a doctrine of discretion. "Its justification lies in considerations of judicial economy, convenience, and fairness to the litigants. . . ." Gibbs, 383 U.S. 715 at 726, 86 S. Ct. at 1139, 16 L. Ed. 2d 218 (1966). The factors courts are to consider in deciding whether or not to exercise pendent jurisdiction are 1) whether the federal claims were dismissed before trial; 2) whether state claims predominate; 3) whether the state claims are closely tied to questions of federal policy; and 4) whether a jury is likely to be confused by divergent legal theories of relief. Id. at 726-27, 86 S. Ct. at 1139-40, 16 L. Ed. 2d 218. In considering these factors in the case at bar, we find that state claims predominate; the present ...


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