Petition for a Writ of Mandamus to the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 93-cv-1527).
Before: Stapleton, Garth, And Pratt*fn*, Circuit Judges.
The operative facts giving rise to this mandamus application are set forth in the civil complaint of respondents Alan D. Lindsey and Randall Coughanour. in September 1991 Lindsey and Coughanour were involved in disputes with security guards at an indoor shopping mall on Route 51 in West Mifflin Borough, just south of Pittsburgh, Pa. They had travelled to the mall to shop, but upon their arrival, they were "harassed, threatened, and assaulted" by the security guards. When the guards refused their request that the police be summoned, Lindsey and Coughanour themselves telephoned the West Mifflin Police Department requesting assistance. West Mifflin Police Officer Evan, one of the petitioners in this mandamus application, responded to the call. Evan refused to arrest or admonish any of the guards, but told Lindsey and Coughanour to leave the mall and never come back; otherwise, they would be arrested.
The following day, Lindsey returned to the mall in an attempt to talk to someone from the DeBartolo organization, which owned the mall, to find out why he had been accosted and why he was not permitted on the mall without permission. During the next three weeks Lindsey repeatedly and unsuccessfully attempted to contact Sam Vindovich, the mall manager, one of the defendants in the underlying action, to find out why he and Coughanour were banned from the mall. Lindsey finally consulted his present counsel, who advised him that the law permitted his entrance to the mall as long as the mall was open to the public.
On September 27, 1991, Lindsey and Coughanour returned to the mall to shop, but were accosted and handcuffed in the mall men's room, and then dragged through the mall corridor to mall offices to await the arrival of Officer Evan.
Evan then wrote out summary offense citations for disorderly conduct and defiant trespass. Lindsey and Coughanour were photographed by a Polaroid camera, and the photographs were attached to printed forms that said "DEFIANT TRESPASS". These paper forms contained, among other things a warning that, if Lindsey and Coughanour came onto the mall property again, they would be arrested. These preprinted forms were then displayed on a bulletin board in the mall at the security offices for everyone passing in front of the board to see.
The handcuffs were then removed, and Lindsey and Coughanour were ordered to leave the mall, separately, which they did. They were prosecuted and convicted in Common Pleas Court on charges stemming from the incidents at the mall, but on February 26, 1993, a three Judge panel of the Superior Court in Allegheny County vacated the convictions and discharged them.
Lindsey and Coughanour then filed a seven count complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, claiming that they had committed no crimes while at the mall and that they had been maliciously abused and prosecuted. As defendants, they named the Borough of West Mifflin and Officer Evan ("the municipal defendants"), who are the petitioners in this mandamus proceeding, as well as the owners, supervisors, and security officers of the mall ("the DeBartolo defendants"). Specifically, Lindsey and Coughanour alleged: (1) state law claims of malicious prosecution, malicious abuse of process, assault, and conspiracy against all defendants; (2) a negligence claim against the municipal defendants; (3) a negligence claim against the DeBartolo defendants; and (4) a federal claim under 42 U.S.C. § 1983 which alleged that the municipal defendants and the DeBartolo defendants conspired to deprive Lindsey and Coughanour of their civil rights through harassment, assault, false arrest, malicious prosecution, and abuse of process in violation of the 4th, 5th, and 14th amendments.
Relying on the federal civil rights claim, the municipal defendants filed a notice of removal from the state court to the United States District Court for the Western District of Pennsylvania. Lindsey and Coughanour then moved to remand the case back to state court. Magistrate Judge Kenneth J. Benson recommended a remand under 28 U.S.C. § 1441(c) of the entire case, including the § 1983 claim. He found that
the issues of state law clearly predominate in this matter. Not only do they predominate with respect to the state law claims, but there is also a predominance of state law issues with respect to the single claim pursuant to § 1983.
United States District Judge Gary L. Lancaster adopted the report and recommendation "as the opinion of the court" and entered a two page Memorandum and Order granting Lindsey and Coughanour's motion to remand the entire case.
The municipal defendants now seek in this court a writ of mandamus to compel Judge Lancaster to accept jurisdiction of this action, which, they contend, was properly removed under § 1441(a) and (b). They argue that by remanding the entire case under § 1441(c), Judge Lancaster exceeded his authority.
Preliminarily, it is clear that we have jurisdiction to review the district court's remand order. While appellate review of remands is somewhat restricted (see 28 U.S.C. § 1447(d); Aliota v. Graham, 984 F.2d 1350, 1354-55 (3rd Cir. 1993)), this case, which was removed because it included a § 1983 civil rights claim brought under 28 U.S.C. §§ 1331 and 1343, falls within the specific exception to § 1447(d), which states that
an order remanding a case to the State court from which it was removed pursuant to section 1443 ["civil rights cases"] of this title shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d). Thus, Congress has demonstrated a special concern to preserve our power to review remand orders in civil rights cases.
A. Federal Jurisdiction Generally.
Removal and remand issues must be considered in light of the general principles of federal subject matter jurisdiction. There are several sources for original jurisdiction in the federal courts: federal question jurisdiction of civil actions arising under the Constitution, laws, or treaties of the United States, 28 U.S.C. § 1331; diversity of citizenship jurisdiction of civil actions where the matter in controversy exceeds $50,000, and is between citizens of different states, 28 U.S.C. § 1332; and other specific jurisdictional statutes, such as RICO, 18 U.S.C. § 1962, et. seq.; Civil Rights Cases, 28 U.S.C. § 1443; ERISA, 29 U.S.C. § 1002, et. seq.; and FELA, 45 U.S.C. §§ 51-60.
28 U.S.C. § 1367. Section 1367 also grants jurisdiction over claims that involve the joinder or intervention of additional parties, thereby codifying what had been dubbed "pendent-party" jurisdiction as well as some forms of "ancillary" jurisdiction. Thus § 1367 provides federal courts with statutory authority to hear ...