                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            SEP 19 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

In re: GALLATIN COUNTY, a political              No. 10-73908
subdivision of the State of Montana;
GREGORY BISHOP, individually; CITY               D.C. No. 2:08-cv-00086-SEH
OF BOZEMAN; SPECTRUM MEDICAL,
INC., a Montana corporation;
STEPHANIE CATRON, R.N.,                          MEMORANDUM*
individually; JOYCE YOUNG,


GALLATIN COUNTY; GREGORY
BISHOP; CITY OF BOZEMAN;
STEPHANIE CATRON; JOYCE
YOUNG, R.N.; SPECTRUM MEDICAL,
INC.,

              Petitioners,

  v.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA,
BUTTE,

              Respondent,

JAY ALANS JOSEPHS, as personal
represenative of the ESTATE OF
KATHRYN LEIBROCK-JOSEPHS;


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ANNIE JOSEPHS; SOPHIE JOSEPHS;
CALE JOSEPHS,

              Real Parties in Interest.


                           Petition for Writ of Mandamus

                     Argued and Submitted September 1, 2011
                               Missoula, Montana

Before: O’CONNOR, Associate Justice,** REINHARDT and THOMAS, Circuit
Judges.

      Petitioners seek an interlocutory Writ of Mandamus ordering the district

court to exercise supplemental jurisdiction over state law claims in a pending

action. They contend that the court failed to comply with the mandate of this court

in Josephs v. Gallatin County et. al., No. 09-35126 (9th Cir. 2010) (“Gallatin I”).

We deny the petition.

      The district court erred in concluding that the prior appeal did not require

reinstatement of the supplemental state law claims as directed by this Court when it

revived the federal claim on appeal in Gallatin I. See Craig v. M & O Agencies,

Inc., 496 F.3d 1047, 1060 n.5 (9th Cir. 2007). The district court’s conclusion to

the contrary violated the mandate of our Court in Gallatin I, which would normally


       **
          The Honorable Sandra Day O’Connor, Associate Justice for the
Supreme Court, sitting by designation.

                                          -2-
require the issuance of a Writ of Mandate. Vizcaino v. U.S. District Court, 173

F.3d 713, 719 (9th Cir. 1999).

      However, the district court made an alternative holding declining

supplemental jurisdiction in the exercise of its discretion, relying on 28 U.S.C. §

1367 (c) (2) and (c) (4). This separate basis for declining to exercise supplemental

jurisdiction did not violate Gallatin I’s mandate. Gallatin I cited Idaho v. Howmet

Turbine Component Co., 814 F.2d 1376 (9th Cir. 1987), for its holding that the

court “must reverse the decision to dismiss the state claims,” Gallatin I, 09-35126

at *4 (internal quotation and citation omitted). The apparent rationale for the

reinstatement of state law claims in Howmet Turbine was that the reason for their

dismissal–the dismissal of the federal claims that created the basis for the

supplemental jurisdiction–had been removed. There is nothing in Howmet

Turbine–or in Gallatin I–to suggest that the nature of the state and federal claims

inherently required that they be heard together in federal court, or that the district

court’s failure to exercise supplemental jurisdiction over the state law claims

involved in this case would be an abuse of discretion. See Acri v. Varian Assocs.,

Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc) (“[A] federal district court with

power to hear state law claims has discretion to keep, or decline to keep, them

under the conditions set out in § 1367(c) . . . .”).


                                           -3-
      In short, the district court erred in concluding that Gallatin I did not require

reinstatement of the state law claims. However, once the state claims were

reinstated, there is nothing in Gallatin I that prevented the district court from

making the discretionary decision under 18 U.S.C. § 1367 not to exercise

supplemental jurisdiction. That decision is, of course, subject to later appeal upon

the entry of final judgment. See Oliver v. Ralphs Grocery Co., __ F.3d __, 2011

WL 3607014, *6 (9th Cir. 2011) (reviewing on appeal for abuse of discretion the

district court’s decision not to exercise supplemental jurisdiction). We need

not–and do not–review the merits of that decision now. We only need determine

whether the district court’s discretionary decision failed to implement “the letter

and the spirit of the mandate,” Vizcaino, 173 F.3d at 719(quoting Delgrosso v.

Spang & Co., 903 F.2d 234, 240 (3rd Cir. 1990), thus making mandamus an

appropriate remedy. We conclude it did not. See Perry v. Schwarzenegger, 602

F.3d 976, 980 (9th Cir. 2010)(recognizing the “principle that mandamus is

available to assure compliance with a prior mandate”).



      PETITION DENIED.




                                          -4-
