                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-1995

West Mifflin v Lancaster
Precedential or Non-Precedential:

Docket 94-3025




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                           N0. 94-3025



           BOROUGH OF WEST MIFFLIN and WAYNE F. EVAN,

                                         Petitioners,

                               v.

         GARY L. LANCASTER, UNITED STATES DISTRICT JUDGE,
      UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
    OF PENNSYLVANIA; ALAN D. LINDSEY and RANDALL COUGHANOUR;
    THE EDWARD J. DeBARTOLO CORPORATION, An Ohio Corporation;
       CENTURY III ASSOCIATES, A Pennsylvania Partnership;
        SAM VINDOVICH; PAUL PONGRACE; JEFFERY HEIDENREICH;
        ROBERT STEFFEY; JOHN THOMPSON; ROBERT F. DONNELLY,
          INDIVIDUALS, JANE DOE; JOHN DOE 1; JOHN DOE 2;
              JOHN DOE 3; JOHN DOE 4 and JOHN DOE 5,

                         Respondents


        GARY L. LANCASTER, UNITED STATES DISTRICT JUDGE,

                         Nominal Respondent



       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)



                  Argued Tuesday, June 21, 1994

     BEFORE:   STAPLETON, GARTH, AND PRATT*, Circuit Judges

                (Opinion filed January 31, 1995)




_____________________________________
*   Honorable George C. Pratt, United States Circuit Judge for
the Second Circuit, sitting by designation.
                    Patricia A. Monahan   (Argued)
                    Gaitens, Tucceri & Nicholas, P.C.
                    519 Court Place
                    Pittsburgh, PA 15219

                           Attorney for Petitioners


                    Gary N. Altman   (Argued)
                    206 Derrick Avenue
                    Uniontown, PA 15401

                           Attorney for Respondents
                           Lindsey and Coughanour


                    Theodore O. Struk
                    Dickie, McCamey & Chilcote, P.C.
                    Two PPG Place, Suite 400
                    Pittsburgh, PA 15222

                           Attorney for Remaining
                           Respondents



                        OPINION OF THE COURT




PRATT, Circuit Judge:


                        FACTS AND BACKGROUND



     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 at-

tached 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
     [t]he 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.



                            DISCUSSION

     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.

     In addition,
     * * * in any civil action of which the district courts
     have original jurisdiction [except diversity cases],
     the district courts shall have supplemental
     jurisdiction over all other claims that are so related
     to claims in the action within such original jurisdic-
     tion that they form part of the same case or
     controversy under Article III of the United States
     Constitution.


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 some claims that lack an independent basis for federal

subject matter jurisdiction.



                B.   Removal Jurisdiction Generally.
     Cases begun in state court over which a federal court may

also have jurisdiction can be removed by the defendants under 28

U.S.C. § 1441 ("Actions removable generally").

     Section 1441(a) reads in relevant part:

     (a)   Except as otherwise expressly provided by Act of

     Congress, any civil action brought in a State court of

     which the district courts of the United States have
     original jurisdiction, may be removed by the defendant

     or the defendants, to the district court of the United

     States for the district and division embracing the

     place where such action is pending.    For purposes of

     removal under this chapter, the citizenship of

     defendants sued under fictitious names shall be

     disregarded.
     Under (a), therefore, unless otherwise barred by Congress,

any civil action brought in a state court (plaintiff's choice)

over which a federal district court would have original

jurisdiction may be removed by the defendant (defendant's choice)

to a district court.    This would include both federal question

and diversity cases as well as the miscellaneous federal

jurisdiction cases.

     In the case now before us, Lindsey's and Coughanour's state

court action included a claim under 42 U.S.C. § 1983, over which

the federal court has jurisdiction under 28 U.S.C. §§ 1331 and

1343, plus a variety of state law claims arising out of the same

events and circumstances, over which the federal court has

supplemental jurisdiction under § 1367.    Because the district

court had subject matter jurisdiction, the action was properly

removed from state court under § 1441(a).

     Under § 1441(b) diversity cases have an additional obstacle

to removal:   a resident defendant is barred from removing to

federal court.   If jurisdiction is based on a federal question,

however, there is no residency restriction.    This shows an added

concern of Congress that cases such as this one -- civil rights

claims raising federal questions -- should be permitted to be

heard in federal courts.



                   C.   Application of § 1441(c).

     The dispute on this mandamus application focuses on the

effect of subdivision (c) of § 1441.    That provision, prior to

1990, read:
     Whenever a separate and independent claim or cause of
     action, which would have been removable if sued upon
     alone, is joined with one or more otherwise non-
     removable claims or causes of action, the entire case
     may be removed and the district court may determine all
     issues therein, or, in its discretion, remand all
     matters not otherwise within its original jurisdiction.


In 1990, Congress amended § 1441(c) in a manner which the parties

contend affects our decision in this case.   See Judicial
Improvements Act of 1990, Pub. L. No. 101-650 § 312, 104 Stat.

5089, 5114 (1990). Section 1441(c) now reads:
     Whenever a separate and independent claim or cause of
     action within the jurisdiction of 1331 of this title is
     joined with one or more otherwise non-removable claims
     or causes of action, the entire case may be removed and
     the district court may determine all issues therein,
     or, in its discretion, may remand all matters in which
     State law predominates.


     In enacting the amendment to § 1441(c), Congress altered two

provisions of the statute.   First, it replaced the phrase "a

separate and independent claim or cause of action, which would

have been removable if sued upon alone" with "a separate and

independent claim or cause of action within the jurisdiction of

1331 of this title".   Second, it replaced the phrase "the

district court may . . . remand all matters not otherwise in its
original jurisdiction" with "the district court may . . . remand

all matters in which State law predominates."

     A fair reading of the Congressional intent in enacting the

amendment to § 1441(c) is that it was designed to restrict

removal to only those cases falling within the court's federal

question jurisdiction and to bring the remand provisions into

harmony with 28 U.S.C. § 1367, thereby possibly avoiding
piecemeal litigation.   See David D. Siegel, Commentary on 1988

and 1990 Revisions to Section 1441, 28 U.S.C.A. § 1441 (1994).

     In the present case, the district court relied upon the

addition which reads "the district court may . . . remand all

matters in which State law predominates" to remand the entire

case, including the § 1983 claim, to state court.    It did so

without regard for the requirement, which the Congress left

unchanged when it amended § 1441(c), that the federal cause of

action removed by the municipal defendants had to be "separate

and independent" from the state causes of action.

     Thus, § 1441(c) provides for removal or remand only where

the federal question claims are "separate and independent" from

the state law claims with which they are joined in the complaint.

However, where there is a single injury to plaintiff for which

relief is sought, arising from an interrelated series of events

or transactions, there is no separate or independent claim or

cause of action under § 1441(c).   American Fire & Casualty Co. v.

Finn, 341 U.S. 6 (1951).   Suits involving pendent (now "supple-

mental") state claims that "derive from a common nucleus of

operative fact", see United Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966), do not fall within the scope of 1441(c), since

pendent claims are not "separate and independent".    Carnegie-

Mellon University v. Cohill, 484 U.S. 343, 354 (1988).

     It is apparent, then, that "§ 1441(c) grants the district

court only a limited authority to remand a case."    Kabealo v.
Davis, 829 F. Supp. 923, 926 (S.D. Ohio 1993) (citing to Buchner

v. F.D.I.C., 981 F.2d 816 (5th Cir. 1993)).   In Kabealo, the
plaintiff had brought a federal claim under the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, et.

seq, along with state law claims of engaging in a pattern of

corrupt activity under Ohio law, breach of fiduciary duty, breach

of contract, and fraud.   Defendant filed a notice of removal, and

the plaintiffs moved for remand under 28 U.S.C. § 1441(c).   The

district court of Ohio concluded that some cases had analyzed

§ 1441(c) too broadly, and held, as petitioners have argued here,

that:
     Even if it is assumed that § 1441(c) would authorize
     the remand of an entire case, including federal claims,
     plaintiff must establish that remand of this case would
     be appropriate under 1441(c). That section provides
     for removal or remand only where the federal claims are
     "separate and independent" from the state law claims
     with which they are joined in the complaint [citing
     authorities]. Where there is a single injury to
     plaintiff for which relief is sought, arising from an
     interrelated series of events or transactions, there is
     no separate and independent claim or cause of action
     under 1441(c). American Fire & Casualty Co. v. Finn,
     341 U.S. 6 (1951). The use of different counts to
     plead different legal theories or multiple theories of
     recovery does not automatically make those counts
     separate and independent.


Kabealo, 829 F. Supp. at 926.   The court then found that because

the plaintiff in that case relied on the same set of facts for

all counts of the complaint, including the RICO count, § 1441(c)

did not authorize remand, because the federal claims were not

separate and independent under that section.

     Kabealo, drawing heavily upon Buchner, stands alone among

the district courts in having reached the same conclusion as

Buchner reached and as we reach here.   Other district courts have
apparently read the 1990 amendments as broadening rather than

narrowing the scope of their discretion to remand.   We cannot

agree.

     For instance, in Moore v. DeBiase, 766 F. Supp. 1311 (D.N.J.

1991), the complaint presented allegations similar to the

allegations found in the present case.   Moore had accused

DeBiase, a police supervisor, of malicious abuse of authority,

abuse of police procedure, a conspiracy to terminate Moore,

defamation, and violation of § 1983 by depriving him of his

"rights, privileges, and immunities secured by the United States

Constitution and New Jersey Law."   Id. at 1314.   Moore also

sought damages against the Borough of Dunnellen and the Dunnellen

Police Department under conspiracy and respondeat superior

theories.   Id.

     Without determining that Moore's § 1983 claim was "separate

and independent" from his state law claims, the district court

remanded all of Moore's claims, including his § 1983 claim.      It

did so in the belief that the phrase "all matters in which State

law predominates" in § 1441(c) permits the remand of even federal

claims within the district court's original federal jurisdiction

if, in the discretion of the district court, state law

predominated in the action as a whole.

     As we have pointed out, however, unless the federal question

claims removed by the defendant were "separate and independent"

from the state law claims, § 1441(c) cannot apply and the

district court must retain the federal claim.   Hence, the

district court's discretion to remand under § 1441(c) can pertain
only to those state law claims which the district court could

decline to hear under 28 U.S.C. § 1367.    (See Section 4 infra

"Application of § 1367(c)").    Thus, we reject the reasoning of

Moore v. DeBiase and those courts which have adopted its

rationale.   See, e.g. Holland v. World Omni Leasing, Inc., 764 F.

Supp. 1441 (N.D. Ala. 1991); Martin v. Drummond Coal Co., Inc.,

756 F. Supp. 524 (N.D. Ala. 1991).

     Similarly in the present case, Lindsey and Coughanour rely

on the same series of events for all counts of their complaint,

including the federal § 1983 count; therefore, the federal claim

is not separate and independent under 1441(c), and the district

court had no authority to remand the case under that section.



                   D.   Application of § 1367(c).

     The plaintiffs insist that, even if the district court was

not authorized to remand this entire case under § 1441(c), its

action should be sustained under the authority of 28 U.S.C.

§ 1367(c) which gives a district court discretion to decline to

hear certain state claims it would have supplemental jurisdiction

to entertain under § 1367(a).    We disagree for two reasons.

First, nothing in § 1367(c) authorizes a district court to

decline to entertain a claim over which is has original

jurisdiction and, accordingly, that section clearly does not

sanction the district court's remand of this entire case,

including the civil rights claims, to the state court.

     Further, § 1367(c) cannot legitimately be invoked to affirm

even the district court's remand of the state claims to the state
court.   While we agree with plaintiffs that the discretion

bestowed by § 1367(c) exists with respect to removed claims as

well as claims filed initially in the district court, it is

apparent that the district court has not exercised that

discretion in this case.   The magistrate judge's opinion, adopted

by the district court, refers only to § 1441(c) and it is

apparent from that opinion that the court remanded the entire

case based solely on the authority of that section.   Moreover,

the result of an exercise of discretion under § 1367(c) in

circumstances like those before the district court would have

been two parallel proceedings, one in federal court and one in

the state system, and a district court cannot properly exercise

its discretion under § 1367(c) without taking that fact into

account.    The district court's § 1441(c) analysis accordingly

cannot serve as a surrogate for a § 1367(c) analysis that was not

conducted.

     As we have indicated, § 1367(c) is potentially applicable in

a removed case involving federal claims and state claims over

which the district court has supplemental jurisdiction.     A dis-

trict court may thus be called upon to exercise its discretion at

any time during the course of such a proceeding in light of the

circumstances that then exist.   Gibbs, 383 U.S. at 727.    Because

the district court in this case may hereafter be called upon to

exercise its discretion under § 1367(c), we offer the following

guidance.

     Subsection (a) of § 1367 directs that "in any civil action

of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all

other claims that are so related to [the original jurisdiction

claims] that they form part of the same case or controversy."

Subsection (c) goes on to describe four categories of such claims

which the district courts may nevertheless decline to adjudicate:
     (c) The district courts may decline to exercise
     supplemental jurisdiction over a claim under subsection
     (a) if --

          (1) the claim raises a novel or complex issue of
          State law,

          (2) the claim substantially predominates over
          the claim or claims over which the district
          court has original jurisdiction,

          (3) the district court has dismissed all
          claims over which it has original juris-
          diction, or

          (4) in exceptional circumstances, there are
          other compelling reasons for declining
          jurisdiction.


     While § 1367(c) does not specify what disposition the

district court is to make of state claims it decides not to hear,

based on the teachings of Carnegie-Mellon, 484 U.S. at 343, we

believe that in a case that has been removed from a state court,

a remand to that court is a viable alternative to a dismissal

without prejudice.   See Balazik v. County of Dauphin, No. 94-

7350, slip op. at 15-17 (3d. Cir. January 5, 1995).

     Section 1367(a)'s grant of "supplemental" jurisdiction was

intended to broaden the preexisting scope of what had previously

been termed "pendent" jurisdiction to include claims involving

the addition of parties.   H.R. Rep. No. 416, 101st Cong., 2d
Sess. 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6875.

Section 1367(c), on the other hand, was intended simply to codify

the preexisting pendent jurisdiction law, enunciated in Gibbs and

its progeny, concerning those instances in which a district court

is authorized to decline to hear a state claim it would have the

power to hear because of its relationship to an original federal

jurisdiction claim.   H.R. Rep. No. 416, 1990 U.S.C.C.A.N. at 6875

(Subsection 1367(c) "codifies the factors that the Supreme Court

has recognized as providing legitimate bases upon which a

district court may decline jurisdiction over a supplemental

claim, even though it is empowered to hear the claim.").    It is

of particular importance in the present context to note that the

"substantially predominates" standard found in § 1367(c)(2) comes

directly from the Supreme Court's opinion in Gibbs and should be

understood in that context.   The Court there explained the

doctrine of pendent jurisdiction as follows:
     It has consistently been recognized that pendent
     jurisdiction is a doctrine of discretion, not of
     plaintiff's right. Its justification lies in
     considerations of juridical economy, convenience and
     fairness to litigants; if these are not present a
     federal court should hesitate to exercise jurisdiction
     over state claims, even though bound to apply state law
     to them, Erie R. Co. v. Tompkins, 304 U.S. 64.
     Needless decisions of state law should be avoided both
     as a matter of comity and to promote justice between
     the parties, by procuring for them a surer-footed
     reading of applicable law. Certainly, if the federal
     claims are dismissed before trial, even though not
     insubstantial in a jurisdictional sense, the state
     claims should be dismissed as well. Similarly, if it
     appears that the state issues substantially
     predominate, whether in terms of proof, of the scope of
     the issues raised, or of the comprehensiveness of the
     remedy sought, the state claims may be dismissed
     without prejudice and left for resolution to state
     tribunals.

                              * * * *

     [Even after the pretrial process has been completed and
     trial commenced,] recognition of a federal court's wide
     latitude to decide ancillary questions of state law
     does not imply that it must tolerate a litigant's
     effort to impose upon it what is in effect only a state
     law case. Once it appears that a state claim
     constitutes the real body of a case, to which the
     federal claim is only an appendage, the state claim may
     fairly be dismissed.


Gibbs, 383 U.S. at 726-27 (footnotes omitted).
     Under Gibbs jurisprudence, where the claim over which the

district court has original jurisdiction is dismissed before

trial, the district court must decline to decide the pendent

state claims unless considerations of judicial economy,

convenience, and fairness to the parties provide an affirmative

justification for doing so.   Lovell Mfg. v. Export-Import Bank of

the United States, 843 F.2d 725 (3d Cir. 1988); Growth Horizons,

Inc. v. Delaware County, 983 F.2d 1277 (3d Cir. 1993).    Where the

original federal jurisdiction claim is proceeding to trial,
however, such considerations will normally counsel an exercise of

district court jurisdiction over state claims based on the same

nucleus of operative facts unless the district court can point to

some substantial countervailing consideration.   This is the

teaching of our opinion in Sparks v. Hershey, 661 F.2d 30 (3d

Cir. 1981), where the complaint asserted a civil rights claim

under § 1983, a state wrongful death claim, and a state survival
act claim, all based on the same jailhouse suicide.    We there

observed:
     We do not hold that where there is a common nucleus of
     operative facts, state claims must always be appended
     to the federal claim; but where, as here, the district
     court does not set forth a persuasive, reasoned
     elaboration for dismissing the state claims, we are
     inclined to believe that the dictates of "judicial
     economy, convenience, fairness to the parties, and
     comity" . . . are better served by recognizing pendent
     jurisdiction. This is especially true where it is
     desirable to avoid the possibility of duplicating the
     recovery of damages. Here it is preferable for a
     single fact finder, under proper instruction from the
     court, to consider the varying elements of damages
     recoverable under the federal § 1983 claim and the
     state wrongful death and survival actions . . . . We
     will therefore reverse the district court's order
     dismissing the pending state claims and direct that
     court to exercise jurisdiction over them.


Sparks, 661 F.2d at 33-34 (citations omitted).

       Plaintiffs do not suggest that subparagraphs (1), (3), or

(4) of § 1367(c) are applicable here.    They do maintain that

their state claims substantially predominate over their federal

claims and, accordingly, that this case falls within subparagraph

(2).    The district court is in a better position than we to pass

upon this contention.    Moreover, even if § 1367(c) does not

authorize a refusal to hear the state claims based on the current

record, it might provide that authority at some later stage in

the proceeding.    Accordingly, the following observations

concerning § 1367(c)(2) are offered solely by way of guidance and

are not intended to foreclose the district court from hereafter

exercising its discretion under § 1367(c) upon appropriate

application.
     As we have noted, the "substantially predominates" standard

of § 1367(c)(2) comes from Gibbs.   It is important to recognize

that this standard was fashioned as a limited exception to the

operation of the doctrine of pendent jurisdiction -- a doctrine

that seeks to promote judicial economy, convenience, and fairness

to litigants by litigating in one case all claims that arise out

of the same nucleus of operative fact.   When a district court

exercises its discretion not to hear state claims under

§ 1367(c)(2), the advantages of a single suit are lost.     For that

reason, § 1367(c)(2)'s authority should be invoked only where

there is an important countervailing interest to be served by

relegating state claims to the state court.    This will normally

be the case only where "a state claim constitutes the real body

of a case, to which the federal claim is only an appendage,"

Gibbs, 383 U.S. at 727 -- only where permitting litigation of all

claims in the district court can accurately be described as

allowing a federal tail to wag what is in substance a state dog.

     Given the origin of the "substantially predominate"

standard, a district court's analysis under § 1367(c)(2) should

track the Supreme Court's explication of that standard in Gibbs.
We do not understand plaintiffs to suggest that there is a

substantial quantity of evidence supporting their state claims

that would not be relevant to the federal claims that the

defendants, acting under color of state law, conspired to violate

plaintiffs' constitutional rights by assaulting, wrongfully

arresting, and maliciously prosecuting them.   Thus, in the

terminology of Gibbs, the state issues would not appear to
"substantially predominate . . . in terms of proof."    383 U.S. at

726.    Nor would they appear to "substantially predominate . . .

in terms of . . . the comprehensiveness of the remedy sought."

Id.    The remedy sought based on the state claims is the same

remedy sought based on the federal claims -- damages for the same

set of injuries to the plaintiffs.    As we observed in Sparks, 661

F.2d at 33-34, the difficulty of avoiding duplicative recoveries

is a factor tending to weigh against litigating related federal

and state claims in different fora.

       This leaves the issue of whether the state claims can be

said to "substantially predominate . . . in terms of . . . the

scope of the issues raised."    Id.   It is true that the state

claims here outnumber the federal claims.    The "substantially

predominate" standard, however, is not satisfied simply by a

numerical count of the state and federal claims the plaintiff has

chosen to assert on the basis of the same set of facts.    An

analysis more sensitive to the relevant interests is required.

       While federal constitutional tort law under § 1983 derives

much of its content from the general common law of torts,

plaintiffs' civil rights claims based on the alleged assault,

arrest, and prosecution are nevertheless governed exclusively by

federal law.    Heck v. Humphrey, 114 S. Ct. 2364, 2370-71 (1994).
While the claims based upon the arrest and the prosecution may

require an inquiry into whether the defendants had probable cause

to believe a crime had been committed and this may in part

require some reference to the state criminal law, the probable

cause issue and the other issues raised by these claims are
nevertheless issues of federal law and concern.    E.g. id.; Rose

v. Bartle, 871 F.2d 331 (3d Cir. 1989); Lee v. Mihalich, 847 F.2d

66 (3d Cir. 1988); Losch v. Borough of Parkesburg, 736 F.2d 903

(3d Cir. 1984).

     There are, to be sure, a complementary set of state law

issues arising out of the state claims based on the alleged

assault, arrest, and prosecution.   But these state issues do not

appear from our vantage point to substantially predominate over

the comparable but distinct federal issues.    Plaintiffs do not

suggest that these state issues are more important, more complex,

more time consuming to resolve, or in any other way more

significant than their federal counterparts.

     The only other state issues are those which may arise from

the plaintiffs' negligence claims against the municipal

defendants and the DeBartolo defendants.   The dimensions of those

claims are not clear at this stage of the case, but it seems

unlikely to us that they will cause the state issues to

"substantially predominate" within the meaning of § 1367(c)(2).

If the factual allegations of the complaint are accepted at face

value, as we are required to do at this point, this case involves

several substantial claims that the plaintiffs' constitutional

rights have been infringed.   In such circumstances, we believe it

will be the rare case, at least, where the addition of

straightforward negligence claims based on the same facts as the

constitutional claims will cause the state issues to

substantially predominate.
     In short, while we do not foreclose the parties from

hereafter arguing, and the district court from hereafter

considering, the issue posed by § 1367(c)(2), we think it

unlikely that either will be able to point to a countervailing

interest that would justify bifurcating this case into a federal

and a state suit that will essentially duplicate each other.



                     SUMMARY AND CONCLUSION

     The district court had subject matter jurisdiction over the

1983 claim and supplemental jurisdiction over the other claims,

which arose out of the same incidents and addressed the same

course of conduct by the defendants; therefore, the federal and

nonfederal claims were not "separate and independent", and the

district court had no authority under § 1441(c) to remand either

part or all of the case.

     Accordingly, the petition for a writ of mandamus is granted.
