                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1207


CHRISTIE ARRINGTON, Administrator of the Estate of Nyles
Arrington; CHRISTIE ARRINGTON, Individually,

                 Plaintiffs - Appellees,

           v.

CITY OF RALEIGH; MICHELLE PEELE, individually, in her
official capacity as an officer of the Raleigh Police
Department, and in her capacity as a security guard with La
Rosa Linda’s Mexican Restaurant,

                 Defendants – Appellants,

           and

RALEIGH POLICE DEPARTMENT; ROSALINDA MARTINEZ,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cv-00011-BO)


Argued:   January 28, 2010                   Decided:   March 5, 2010


Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.
ARGUED: Norwood P. Blanchard, III, CRANFILL, SUMNER & HARTZOG
LLP, Wilmington, North Carolina; Hunt Kang Choi, OFFICE OF THE
CITY ATTORNEY, Raleigh, North Carolina, for Appellants.     Mark
Anthony Key, Lillington, North Carolina, for Appellees.       ON
BRIEF: Dorothy K. Leapley, OFFICE OF THE CITY ATTORNEY, Raleigh,
North Carolina, for Appellant City of Raleigh; Patricia L.
Holland, CRANFILL, SUMNER & HARTZOG LLP, Raleigh, North
Carolina, for Appellant Michelle Peele.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

           This case arises from the fatal shooting of a man by a

Raleigh,   N.C.,     police     officer.       Plaintiff      Christie     Arrington,

acting in her individual capacity and as administrator of the

estate of Nyles Arrington, filed a complaint seeking damages in

North   Carolina     state      court,    asserting        claims   under    both   42

U.S.C. § 1983 and state law. Defendants removed the case to the

United States District Court for the Eastern District of North

Carolina on the basis of federal question jurisdiction; all of

the parties are citizens of North Carolina. Thirteen days after

the removal of the case to federal court, the plaintiff amended

her complaint as of right, dismissing all the federal claims.

The plaintiff never sought remand to state court; consequently,

the case proceeded in federal district court. The case has come

to us upon an interlocutory appeal on complex issues of immunity

under   North   Carolina        law.     Having      had   the    benefit    of   full

briefing and oral argument, we conclude that the district court

should have remanded the case to state court upon the dismissal

of all federal claims, even in the absence of a motion from the

parties that it do so. Accordingly, we vacate the interlocutory

order   brought      up   for    review        and   remand      this   action    with

directions    that    the    district     court      remand   the   case    to    state

court for all further proceedings.



                                           3
                                       I.

            We draw the below summary of the facts from the record

before the district court. On August 28, 2005, Officer Michelle

Peele (“Peele”) fatally shot Nyles Arrington (“Arrington”) as he

was attempting to steal her personally-owned vehicle from the

parking lot of La Rosa Linda’s, a Raleigh restaurant and bar.

At the time of the shooting, Officer Peele was a sworn police

officer of the Raleigh Police Department (“RPD”) working as an

off-duty security guard at La Rosa Linda’s. The City of Raleigh

(“the City”) had passed an ordinance requiring nightclubs to

hire off-duty uniformed officers to provide security. When RPD

officers worked off-duty security jobs at local establishments,

they were required to wear their RPD uniforms and carry their

service weapons.

            On   the    night   of    the   shooting,     Officer   Peele    was

scheduled to work a four-hour shift providing security at La

Rosa Linda’s from 10 p.m. to 2 a.m. Officer Peele’s friend,

Lindsay    Banning     (“Banning”),     accompanied      Officer    Peele    that

night, riding with her in Peele’s personal automobile (an SUV)

to   the   restaurant.     As   the    night      progressed,   Officer     Peele

occasionally     sat,    with   Banning,     in    her   vehicle,   which    was

positioned in the parking lot so that Peele could watch the

front entrance of the restaurant. Around midnight, Officer Peele

went into the foyer area of La Rosa Linda’s and Banning followed

                                        4
her, leaving the SUV in the parking lot with the windows down

and the keys in the ignition.

               Shortly after entering the restaurant, Officer Peele

looked outside and noticed a man (subsequently identified as

Arrington) slowly walking past the driver’s side door, opening

the door of her vehicle, and climbing into the driver’s seat.

Officer Peele had never seen Arrington before. She testified

during discovery that she was particularly concerned about the

theft of her vehicle because she had left her personal handgun

on the floor of the driver’s side of the SUV under the front

seat. Officer Peele stepped out of the restaurant and approached

the vehicle, shouting “Stop . . . Police . . . Get out!” but

Arrington did not step out of the vehicle. Instead, he revved

the engine and began driving the car slowly forward. Officer

Peele continued calling for him to stop and drew her service

weapon.   As     the   vehicle    moved   forward,    Arrington    made   a   hard

right. Banning, who had followed Officer Peele outside, was now

either    in    or   close   to   the   path   of   the   moving   vehicle.   The

parties vigorously dispute Banning’s precise location. Officer

Peele discharged her weapon one time, fatally striking Arrington

in the chest.

               Plaintiff Christie Arrington filed this action in Wake

County Superior Court on September 11, 2006, against the City;

Officer Peele, individually and in her official capacity; the

                                          5
RPD; and Rosalinda Martinez, the owner of the restaurant. The

six-count    complaint    included      five    state       law   counts       and    one

federal law count (containing numerous legal theories) pursuant

to 42 U.S.C. § 1983. On January 9, 2007, the defendants timely

removed the case based on federal question removal jurisdiction

to the United States District Court for the Eastern District of

North    Carolina.    Thirteen   days    later,       the    plaintiff     filed      an

amended complaint, as of right, dismissing her federal claims

and adding an additional state law claim for punitive damages.

The     plaintiff    never    sought    remand        to    state    court,          and,

exercising    supplemental       jurisdiction         pursuant      to    28    U.S.C.

§ 1367(a), the district court proceeded with the case.

            At the time of the shooting, the Raleigh City Council

had authorized a limited waiver of the City’s sovereign immunity

for specified types of damages up to $1 million, provided the

claimant agreed to execute a release in favor of all persons,

firms, and corporations that might also or otherwise be liable.

The City also had in place two insurance polices:                    one issued by

Genesis Insurance Company providing indemnity for certain claims

above $1 million and below $2 million, and another issued by The

Insurance    Company     of   the   State       of    Pennsylvania,        providing

indemnity    for    certain   claims    above    $2    million      and    below     $11

million. The plaintiff refused to agree to execute the release

as provided under state and local law.

                                        6
             After several preliminary matters had been resolved by

the district court, on July 14, 2008, the City and Officer Peele

filed motions for summary judgment, inter alia, on the ground of

immunity from suit based on certain principles of state law.

After a hearing, the district court entered its memorandum and

order granting summary judgment in favor of the City on the

merits of some claims but it rejected, either as a matter of

law, or on the basis of the existence of genuine disputes of

material fact, both the City’s motion and Officer Peele’s motion

insofar     as    they    asserted     immunity   from    suit.     The   City   and

Officer     Peele    have    timely      noted    the    instant    interlocutory

appeal, seeking review of the district court’s immunity rulings.

Under Bailey v. Kennedy, 349 F.3d 731, 738-39 (4th Cir. 2003),

and Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 231

(4th Cir. 2002), we have jurisdiction over this interlocutory

appeal based on the denial of state law immunity.



                                         II.

             The plaintiff voluntarily dismissed her federal claims

a mere thirteen days after the case was removed from state court

but   she   did     not   move   for    remand.   Thus,    the     district   court

elected to retain jurisdiction over the state law claims being




                                          7
pursued   by   plaintiff. 1   No   doubt,   as   permitted   by   28   U.S.C.

§ 1367(c), the district court had the discretion to make that

election. But both the plain text of § 1367(c) as well as our

precedents make clear that in this instance, that discretion

should have been exercised to decline jurisdiction.

           Section 1367(c) provides:

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

28 U.S.C. § 1367(c). As can be seen, under subsections (c)(1),

(2), and (3), above, there were compelling reasons not to retain

supplemental jurisdiction over the non-diverse state law claims

in this case. As contemplated by subsection (1), the state law

immunity issues here are both novel and complex. 2 As contemplated


     1
       District courts have supplemental jurisdiction over state
law claims that “form part of the same case or controversy” as
the federal claim supporting removal. 28 U.S.C. § 1367(a).
     2
       The briefing and argument in this case have shown that
issues surrounding municipal sovereign immunity and public
official immunity pose intricate and important state law issues
under North Carolina law. A decision or ruling in this case
could well bring waves of consequences to other North Carolina
municipalities and governmental entities. The district court, in
(Continued)
                                      8
by subsection (2), virtually from the start, there has existed

solely   state   law    claims   in    this    case.     And   relatedly,   as

contemplated     by    subsection      (3),   the      sole    federal   claim

supporting     the    district   court’s      original    jurisdiction      was

dismissed    voluntarily    by   the   plaintiff    without     objection    by

defendants less than two weeks after the case arrived in federal

court. Under the circumstances, therefore, we fail to see why a

federal district court would elect to retain jurisdiction.

            Indeed, our precedents evince a strong preference that

state law issues be left to state courts in the absence of

diversity or federal question jurisdiction under circumstances




finding that the City had waived sovereign immunity through its
purchase of two insurance policies seemingly never considered,
and — at a minimum – did not discuss in its order, pertinent
North Carolina cases speaking directly to the issue. See, e.g.,
Magana v. Charlotte-Mecklenburg Bd. of Ed., 183 N.C. App. 146
(2007); Williams v. Holsclaw, 128 N.C. App. 205 aff’d, 349 N.C.
225 (1998); Overcash v. Statesville Bd. of Ed., 83 N.C. App. 21
(1986). Furthermore, while the district court concluded that the
City waived sovereign immunity through the mere purchase of
liability   insurance,   some   North   Carolina   courts   have
consistently rejected that notion.       See, e.g., Kephard by
Tutweiler v. Pendergraph, 131 N.C. App. 559 (1998). Similarly,
North Carolina’s doctrine of public officer immunity includes
variants that heighten its complexity. See Jones v. Kearns, 120
N.C. App. 301, 305 (1995); Slade v. Vernon, 110 N.C. App. 422,
428 (1993). Certainly, we do not suggest, by emphasizing such
complexities in state law, that we harbor doubt as to the
ability of any district court in this circuit to resolve them in
a proper case. We have grave doubt, however, that this is a
“proper case” in which a federal district court should undertake
the task.



                                       9
such as those reflected here. That is to say, although we have

consistently     acknowledged        that      district       courts    “enjoy    wide

latitude in determining whether or not to retain jurisdiction

over    state     claims     when       all     federal       claims     have     been

extinguished,” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.

1995), at the same time, we have taken heed of the Supreme

Court’s teaching        (even before the enactment of § 1367 in 1990)

that “a federal court should consider and weigh in each case,

and at every stage of the litigation, the values of judicial

economy, convenience, fairness, and comity in order to decide

whether to exercise jurisdiction over a case brought in that

court     involving      pendent     state-law         claims.”      Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 350 (1988) (emphasis added).

Thus, we have observed under circumstances analogous to those

here: “With all its federal questions gone, there may be the

authority to keep [this case] in federal court under 28 U.S.C.

§§ 1367(a) and 1441(c) (2000), but there is no good reason to do

so.” Waybright v. Frederick County, MD, 528 F.3d 199, 209 (4th

Cir.    2008),   cert.     denied,      129    S.Ct.    725    (2008)    (alteration

added);    see   also    Farlow    v.   Wachovia       Bank    of    North    Carolina,

N.A.,   259   F.3d    309,   316    (4th      Cir.   2001).     We    think    that   is

equally true here.




                                          10
                                     III.

            In sum, we are persuaded that, under the circumstances

here, and for the reasons set forth above, resolution of the

important   and    potentially      far-reaching         issues     of   state   law

presented   by    this    case   should    be    remitted      to   state   courts.

Accordingly,     the     district   court       should   not    have     maintained

jurisdiction over this action upon the early dismissal by the

plaintiff of the federal claims. Therefore, the order of the

district court entered on January 26, 2009, granting in part and

denying in part motions for summary judgment is vacated. This

case is remanded to the district court with directions to remand

the case to the Superior Court for Wake County, North Carolina.

Upon the remand to state court, the state court shall be free to

adopt, modify, or reject any and all such orders as may have

been previously entered in this action.

                                                           VACATED AND REMANDED
                                                              WITH INSTRUCTIONS




                                      11
