                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DWIGHT RATCLIFF,                                 No.   16-35941

              Plaintiff-Appellant,               D.C .No. 1:12-cv-00079- SPW

 v.

CITY OF RED LODGE, DEPARTMENT                    MEMORANDUM*
OF POLICE, a Political Subdivision of the
State of Montana; AL STUBER, a Red
Lodge Police Officer,

              Defendants-Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                            Submitted August 2, 2017**

Before:      TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

      This case is before us for the second time. Last year, we reversed the district

court’s denial of Officer Al Stuber’s motion for summary judgment, holding that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Officer Stuber was entitled to qualified immunity against Dwight Ratcliff’s 42

U.S.C. § 1983 claims for excessive force and a purportedly unreasonable Terry

stop.1 Ratcliff v. City of Red Lodge, Dep’t of Police, 650 F. App’x 484, 486 (9th

Cir. 2016). On remand, the district court granted the renewed motions for

summary judgment filed by Officer Stuber and the City of Red Lodge Police

Department (the “City”). This appeal followed. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

      Ratcliff argues that the district court erred when, on remand, it exercised

supplemental jurisdiction over his state law claims. Before reaching this question,

however, we must first decide whether Ratcliff waived this argument by failing,

until now, to challenge the district court’s exercise of supplemental jurisdiction.

      1.     Unlike other bases of subject matter jurisdiction, the exercise of

supplemental jurisdiction under 28 U.S.C. § 1367 remains subject to “our normal

rules of appellate procedure,” including the waiver doctrine. See Kohler v. Inter-

Tel Tech., 244 F.3d 1167, 1171 (9th Cir. 2001) (citation omitted). Thus, a party

waives an “objection to the district court’s discretionary exercise of supplemental

jurisdiction by failing to raise it in the district court.” Id. Here, Ratcliff contends




      1
             See Terry v. Ohio, 392 U.S. 1 (1968).
                                            2
that he raised the requisite objection in his opposition brief to Officer Stuber’s

renewed motion. But the portion of the brief on which Ratcliff relies only states:

       [Ratcliff] acknowledges that with the Ninth Circuit ruling and the manner in
       which Judge Molloy framed the § 1983 claim against the city, jurisdiction
       based on federal question may not exist. If the Court finds that it no longer
       has original jurisdiction and declines supplemental jurisdiction, [Ratcliff]
       requests the Court dismiss the Complaint without prejudice, as has been the
       practice in this District.

(Emphasis added.) This passage is plainly not an objection to the district court’s

exercise of supplemental jurisdiction, but rather conveys Ratcliff’s preference for a

dismissal without prejudice in the event the court declines to exercise such

jurisdiction. Accordingly, we hold that Ratcliff waived his right to object to the

district court’s exercise of supplemental jurisdiction.

       2.     Even assuming that Ratcliff preserved his objection, his appeal still

fails. While we consider de novo the question of whether the district court had

subject matter jurisdiction, “[w]e review the district court’s decision to exercise

supplemental jurisdiction for an abuse of discretion.” Satey v. JPMorgan Chase &

Co., 521 F.3d 1087, 1090-91 (9th Cir. 2008) (citations omitted).

       A district court “may decline to exercise supplemental jurisdiction over a

claim . . . if . . . the district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). Notwithstanding the permissive language in



                                             3
§ 1367, Ratcliff contends that the district court erred when it chose to exercise this

jurisdiction.

      As an initial matter, Ratcliff is incorrect that, at the time the district court

exercised supplemental jurisdiction over Ratcliff’s state law claims, it had already

dismissed all of his federal claims. This case is analogous to Munger v. City of

Glasgow Police Dep’t, 227 F.3d 1082 (9th Cir. 2000). There, when faced with the

same argument now pursued by Ratcliff, we explained that “[a]fter having granted

qualified immunity to the officers, the district court retained jurisdiction over the §

1983 claims against the police departments.” Id. at 1088 n.4. “The court granted

summary judgment as to these latter federal claims at the same time that it granted

summary judgment on most of the state law negligence claims – in the August 10,

1998 order.” Id. (emphasis added). “Thus, the court was not exercising

jurisdiction over most state law claims after having disposed of the federal claims.”

Id. The same is true here. On June 21, 2016, on remand, the district court

dismissed Ratcliff’s federal claims against Officer Stuber. At that time, it had not

yet dismissed Ratcliff’s § 1983 claim against the City. Instead, it did not dismiss

that claim until October 20, 2016, in the same order in which it dismissed Ratcliff’s

remaining state law claims.




                                            4
      In any event, “a federal district court with power to hear state law claims has

discretion to keep, or to decline to keep, them under the conditions set out in

§ 1367(c) . . . .” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997)

(en banc). This discretion should be informed by the values of “economy, fairness,

and comity.” Munger, 227 F.3d at 1088 n.4 (quoting Acri, 114 F.3d at 1001). The

district court, noting that the case had been pending in federal court for over four

years and invoking considerations of judicial economy, did not abuse its discretion

in exercising supplemental jurisdiction over Ratcliff’s state law claims.

      The judgment of the district court is

AFFIRMED.




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