                                                          FILED
                                              United States Court of Appeals
                  UNITED STATES COURT OF APPEALS      Tenth Circuit

                         FOR THE TENTH CIRCUIT                 January 23, 2020
                       _________________________________
                                                             Christopher M. Wolpert
                                                                 Clerk of Court
    SCOTT BIRDWELL,

          Plaintiff - Appellant,

    v.                                               No. 19-5031
                                         (D.C. No. 4:15-CV-00304-TCK-FHM)
    STANLEY GLANZ, in his personal                   (N.D. Okla.)
    capacity; VIC REGALADO, Sheriff
    of Tulsa County, in his official
    capacity; BOARD OF COUNTY
    COMMISSIONERS OF TULSA
    COUNTY; ARMOR
    CORRECTIONAL HEALTH
    SERVICES, INC.; NURSE
    CUNNINGHAM; JOHN
    ABRAHAM, M.D.,

          Defendants - Appellees.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit
Judges.
               _________________________________



*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
         This appeal requires us to address the federal courts’ exercise of

supplemental jurisdiction over a state-law claim against Armor

Correctional Health Services, Inc. The claim had grown out of a dispute

involving Armor’s medical care to Mr. Scott Birdwell while housed at the

Tulsa County Jail.

         The jail’s inmates obtained medical care from Armor under a

contract. Mr. Birdwell was housed at the jail, and he needed medical care

for a cut over his eye. When Armor’s medical staff sutured the cut and

removed the sutures, complications arose. According to Mr. Birdwell, these

complications led to eye pain and vision problems. He then sued in federal

court.

         In this suit, Mr. Birdwell brought federal and state causes of action.

The district court granted summary judgment to the defendants on the

federal claims. Despite terminating the federal claims, the district court

exercised supplemental jurisdiction over the state-law claim and held that

Armor and the medical professionals are “employees” who are immune

from tort liability under the Oklahoma Governmental Tort Claims Act. See

Okla. Stat. tit. 51 § 152.1(A); see also id. §§ 152(7), 152(14), 155(25). For

this holding, the district court relied on Barrios v. Haskell County Public

Facilities Authority, 432 P.3d 233 (Okla. 2018), a recent opinion by the

Oklahoma Supreme Court. Barrios contains a footnote that assumes

without deciding that an entity is an “employee” under the Oklahoma

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Governmental Tort Claims Act when agreeing to provide medical services

for inmates and staff. 432 P.3d at 236 n.5.

      On appeal, Mr. Birdwell does not challenge the grant of summary

judgment to the defendants on the federal claims or the grant of summary

judgment to the medical professionals on the state-law claim. He instead

argues only that Armor is not an “employee” entitled to immunity under

the Oklahoma Governmental Tort Claims Act. This issue is best left for the

Oklahoma courts to decide.

      The exercise of supplemental jurisdiction is discretionary. Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). In exercising this

discretion, federal courts should consider comity, convenience, economy,

and fairness. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988);

see 28 U.S.C. § 1367(c). When the federal claims disappear early in the

litigation, a federal court should generally decline to exercise supplemental

jurisdiction. Carnegie-Mellon Univ., 484 U.S. at 350.

      When defendants properly obtain summary judgment on all federal

claims, “we have declined to exercise our supplemental jurisdiction over

issues of state law, and instead, when in the interests of comity and justice,

remanded with instructions to dismiss.” Estate of Reat v. Rodriguez,

824 F.3d 960, 967 (10th Cir. 2016). In Merrifield v. Board of County

Commissioners, 654 F.3d 1073 (10th Cir. 2011), for example, we declined

to decide a state-law issue because (1) the state-law claim was “novel” and

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(2) we had “affirmed the dismissal of the claims over which the district

court had original jurisdiction.” 654 F.3d at 1085–86. We thus reversed the

district court’s judgment on the state-law claim and “remand[ed] with

instructions to dismiss the claim without prejudice.” Id. at 1086; see

also Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (same); Ball

v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (same).

      Because Mr. Birdwell does not appeal the grant of summary judgment

on the federal causes of action, all of the claims triggering original

jurisdiction are gone. All that’s left is an undecided issue of state law,

involving interpretation of an assumption stated in a footnote to a recent

opinion of the Oklahoma Supreme Court. Given the novelty of this issue,

we conclude that the interest in comity predominates and should have led

the district court to decline supplemental jurisdiction over the state-law

claim against Armor. See, e.g., Merrifield, 654 F.3d at 1086 (“[T]he

interest in comity—leaving to the states to decide novel questions of

state-law—clearly predominates here.”); Ball, 54 F.3d at 669 (“Where a

state law cause of action is thus in a process of current evolution, it is

particularly appropriate for the federal courts to leave the continuing

development and application of that cause of action to the state courts.”).




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We thus reverse and remand with instructions to dismiss the state-law

claim asserted against Armor without prejudice.

                                  Entered for the Court



                                  Robert E. Bacharach
                                  Circuit Judge




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