     Case: 10-50029 Document: 00511480166 Page: 1 Date Filed: 05/17/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                    May 17, 2011

                                  No. 10-50029                      Lyle W. Cayce
                                                                         Clerk

CLARENCE ENOCHS,

                                            Plaintiff - Appellant
v.

LAMPASAS COUNTY,

                                            Defendant - Appellee




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, DeMOSS, and PRADO, Circuit Judges.
HAROLD R. DeMOSS, JR.:
      This appeal asks us to determine whether the district court abused its
discretion by failing to remand the case to Texas state court after all federal
claims had been deleted and only Texas state law claims remained. For the
following reasons, we find that the district court abused its discretion when it
denied Clarence Enochs’s motion to remand. We therefore vacate the district
court’s grant of summary judgment in favor of Lampasas County on each Texas
state law claim, reverse the district court’s denial of Enochs’s motion to remand,
and remand the case with instructions to the district court to remand the Texas
state law claims to the Texas state court from which the case was removed.
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                                  No. 10-50029

                                        I.
      Enochs filed an original petition in Texas state court on December 29,
2008, alleging violations of federal law under 42 U.S.C. §§ 1983 and 1985, and
violations of Texas state law under the Texas whistleblower statute, Texas
Government Code § 614, and common law defamation. Pursuant to 28 U.S.C.
§ 1441, the County removed the entire case to federal district court on January
26, 2009. On February 26, 2009, the County filed a motion to dismiss both the
federal § 1985 claim and the state whistleblower claim. On March 11, 2009,
Enochs filed an unopposed motion to amend the complaint to delete all federal
claims, and then a separate motion to remand the case to Texas state court.
      On April 20, 2009, the district court entered an order which denied
Enochs’s motion to remand because “[r]emoval was proper based on the original
petition filed in the state court,” and granted Enochs’s motion to file an amended
complaint pursuant to the district court’s discretion under Federal Rule of Civil
Procedure 15(a). The district court also granted the County’s motion to dismiss
the § 1985 claim because Enochs voluntarily dropped it, and denied the County’s
motion to dismiss the whistleblower claim because it could not be resolved
without an evidentiary record.
      With respect to the denial of Enochs’s motion to remand, the district
court’s entire analysis focused on whether removal of the case on January 26,
2009, was proper, and whether it could exercise supplemental jurisdiction over
the pendent Texas state law claims in addition to exercising original jurisdiction
over the federal claims. Based on the existence of two federal claims in Enochs’s
original petition, the district court concluded that removal was proper pursuant
to 28 U.S.C. § 1441(a). And based on the existence of “a common nucleus of
operative fact” between the federal claims and Texas state law claims included
in the original petition, the district court concluded that supplemental
jurisdiction extended over the Texas state law claims pursuant to 28 U.S.C.

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§ 1367(a). The district court noted at the outset of its discussion of the motion
to remand that Enochs’s amended complaint deleted all federal claims from the
case, but it failed to re-examine its jurisdiction over the Texas state law claims
when in the same order it granted Enochs’s motion to file an amended
complaint.
      Following the April 20, 2009 order, the case remained in the district court
but involved only Texas state law claims. The parties proceeded to discovery and
more than five months later the County filed motions for summary judgment on
each of the Texas state law claims. Following briefing and argument on the
merits of each of Enochs’s Texas state law claims, the district court granted
summary judgment on December 2, 2009, in favor of the County on each Texas
state law claim and dismissed the case. Enochs timely appealed (i) the district
court’s denial of his motion to remand the case to Texas state court after all
federal claims had been deleted from his original petition, and (ii) the district
court’s subsequent grant of County’s motion for summary judgment on the
remaining Texas state law claims.
                                        II.
      Enochs concedes that removal of the case to federal district court was
proper and we agree. On January 26, 2009, the district court had original
jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction over the Texas state law claims pursuant to 28 U.S.C.
§ 1367(a).   Enochs contends, however, that the district court abused its
discretion in failing to relinquish jurisdiction over the pendent Texas state law
claims once it had permitted him to file an amended complaint deleting all
federal claims.
      The district court’s failure to remand the pendent Texas state law claims
to the Texas state court from which the case was removed is reviewed for abuse
of discretion. Priester v. Lowndes Cnty., 354 F.3d 414, 425 (5th Cir. 2004). It its

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                                  No. 10-50029

April 20, 2009 order, the district court failed to analyze the statutory and
common law factors that are relevant to the question of its jurisdiction over
pendent state law claims. We therefore evaluate the factors in the first instance,
and then determine whether the district court abused its discretion in denying
Enochs’s motion to remand.
      In determining whether a district court improperly refused to relinquish
jurisdiction over pendent state law claims, we look to the statutory factors set
forth by 28 U.S.C. § 1367(c), and to the common law factors of judicial economy,
convenience, fairness, and comity. See Mendoza v. Murphy, 532 F.3d 342, 346
(5th Cir. 2008) (noting that “no single factor is dispositive”); see also Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (setting forth the common law
factors). We are also instructed to guard against improper forum manipulation.
Carnegie-Mellon, 484 U.S. at 357. We consider and balance each of the factors
to determine whether the district court abused its discretion. See Mendoza, 532
F.3d at 346.
                                        A.
      Precedent instructs us to balance each of the statutory factors in order to
determine whether a district court abused its discretion. See McClelland v.
Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998), overruled on other grounds by
Arana v. Ochsner Health Plan, 338 F.3d 433, 440 n.11 (5th Cir. 2003). The
overall balance of the statutory factors is important. See, e.g., Mendoza, 532
F.3d at 346. The statutory factors are: (1) whether the state claims raise novel
or complex issues of state law; (2) whether the state claims substantially
predominate over the federal claims; (3) whether the federal claims have been
dismissed; and (4) whether there are exceptional circumstances or other
compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c); see also United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966) (setting forth the
common law precursor to § 1367(c)).

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      In this case, each of the four statutory factors favors remand. The first
three factors certainly favor remand: (1) Enochs’s Texas Government Code § 614
claim concerns a novel Texas state law issue with no Texas Supreme Court
guidance, as does his argument that § 1701.456(b) of the Texas Occupations
Code has waived the County’s sovereign immunity; (2) the Texas state law
claims predominate over the non-existent federal claims; and (3) the district
court dismissed all federal claims when it granted Enochs’s motion to file an
amended complaint. The fourth factor also favors remand, as the heavy balance
of the common law factors in favor of remand constitutes another compelling
reason to decline jurisdiction. Thus, the overall balance of the statutory factors
weighs heavily in favor of remand.
                                       B.
      The common law factors as set forth in Carnegie-Mellon include judicial
economy, convenience, fairness, and comity. 484 U.S. at 350, 353. We find that
each factor weighs in favor of remand.
      First, at the time the federal claims were deleted hardly any federal
judicial resources, let alone a significant amount of resources, had been devoted
to the district court’s consideration of the Texas state law claims (or to any
claims). See La Porte Constr. Co. v. Bayshore Nat’l Bank of La Porte, Tex., 805
F.2d 1254, 1257 (5th Cir. 1986); cf. Brookshire Bros. Holding, Inc. v. Dayco
Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009); Newport Ltd. v. Sears, Roebuck
& Co., 941 F.2d 302, 308 (5th Cir. 1991). There would be no need for either
party to duplicate any research, discovery, briefing, hearings, or other trial
preparation work, because very little had been done at that point.            See
Brookshire Bros., 554 F.3d at 603; Mendoza, 532 F.3d at 347. Moreover, there
is no indication that the district court had any “substantial familiarity” or was
intimately familiar with the Texas state law claims at such an early stage of the
litigation. Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587

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                                   No. 10-50029

(5th Cir. 1992); see Smith v. Amedisys Inc., 298 F.3d 434, 446 (5th Cir. 2002).
The denial of the County’s motion to dismiss did not require a thorough
consideration of the merits of the state whistleblower claim at that early stage
of the litigation, and the two other Texas state law claims had not yet even been
briefed. The judicial economy factor certainly favors remand.
      Second, it is certainly more convenient for the case to have been heard in
the Texas state court in Lampasas County, where all of the parties, witnesses,
and evidence were located. Moreover, as the judicial economy factor suggests,
remand would not have caused any financial inconvenience to the parties
because they would not have had to duplicate any of their previous efforts or
expenses. See Mendoza, 532 F.3d at 347. Third, it was certainly fair to have had
the purely Texas state law claims heard in Texas state court, and there is
nothing to indicate that either party would have been prejudiced by a remand
to Texas state court. See Parker & Parsley, 972 F.2d at 588. And fourth, comity
demands that the “important interests of federalism and comity” be respected
by federal courts, which are courts of limited jurisdiction and “not as well
equipped for determinations of state law as are state courts.” Id. at 588-89. The
convenience, fairness, and comity factors each certainly favors remand, and the
overall balance of the common law factors weighs heavily in favor of remand.
      At bottom, all of the statutory and common law factors weigh in favor of
remand, some weighing heavily in favor of remand and others weighing
modestly in favor of remand. W e are bound to consider and weigh “all the
factors” when determining whether a district court abused its discretion by
failing to remand, id. at 590, and in this case the overall balance of the statutory
and common law factors clearly favors remand.
                                        C.
      On the issue of forum manipulation, which is the only issue that even
arguably favored the retention of jurisdiction, Enochs’s motion to amend his

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                                  No. 10-50029

complaint to delete the federal claims is not a particularly egregious form of
forum manipulation, if it is manipulation at all. Guzzino v. Felterman, 191 F.3d
588, 595 (5th Cir. 1999) (agreeing with the district court that “plaintiffs get to
pick their forum and pick the claims they want to make unless they are blatantly
forum shopping”); Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th
Cir. 1999) (finding that an amendment to a complaint deleting the remaining
federal claims was not improper forum manipulation); cf. Brown v. Sw. Bell Tel.
Co., 901 F.2d 1250, 1255 (5th Cir. 1990) (finding that improper forum
manipulation weighed, along with other factors, in favor of continuing to exercise
jurisdiction). In any case, the Supreme Court’s instruction for district courts to
“guard against forum manipulation” is explicitly qualified for situations such as
this one, where other considerations weigh heavily in favor of remand. Carnegie-
Mellon, 484 U.S. at 357.
      Allegations of improper forum manipulation cannot prevent this court or
the district court from considering “the other circumstances in the case,” and any
possible manipulative behavior by Enochs can only be taken “into account in
determining whether the balance of factors to be considered under the pendent
jurisdiction doctrine support a remand in the case.” Id. Guarding against
improper forum manipulation is only one of the important considerations we
examine in determining whether a district court abused its discretion in failing
to remand. It is not so serious of a concern that it can become a trump card
which overrides all of the other factors we are instructed to consider and
balance. If there was any forum manipulation in Enochs’s case, it was not so
improper as to override the balance of the statutory and common law factors
weighing heavily in favor of remand.
                                       III.
      The mistake which led the district court to abuse its discretion was in
failing to reconsider its jurisdiction over the Texas state law claims as of the

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moment it granted Enoch’s motion to file an amended complaint deleting all
federal claims from the case. Courts are instructed to examine their jurisdiction
“at every stage of the litigation.” Id. at 350; see Gibbs, 383 U.S. 715, 727 (1966)
(“[T]he issue whether pendent jurisdiction has been properly assumed is one
which remains open throughout the litigation.”). Were the district court to have
reconsidered in its April 20, 2009 order its pendent jurisdiction over the purely
Texas state law claims, it likely would have then expressly considered the
statutory and common law factors, and it likely would have followed the general
rule and granted the motion to remand.
      “Our general rule is to dismiss state claims when the federal claims to
which they are pendent are dismissed.” Parker & Parsley, 972 F.2d at 585
(citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)); see Carnegie-Mellon,
484 U.S. at 351 (noting that when the federal claims are eliminated at an “early
stage” of the litigation the district court has “a powerful reason to choose not to
continue to exercise jurisdiction”); Gibbs, 383 U.S. at 726 (“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.”); Brookshire
Bros., 554 F.3d at 602 (noting that “the general rule is that a court should
decline to exercise jurisdiction over remaining state-law claims when all federal-
law claims are eliminated before trial”); Beiser v. Weyler, 284 F.3d 665, 675 (5th
Cir. 2002) (noting that where “no other grounds for federal jurisdiction exist, the
court must ordinarily remand the case back to state court”).          Indeed, the
Supreme Court has for nearly half a century cautioned federal courts to avoid
“[n]eedless decisions of state law” such as the decisions the district court made
on the merits of Enochs’s Texas state law claims. Gibbs, 383 U.S. at 726.
      We recognize that the doctrine of pendent jurisdiction is a “doctrine of
flexibility.” Carnegie-Mellon, 484 U.S. at 350; see also Gibbs, 383 U.S. at 727
(noting a district court’s “wide latitude to decide ancillary questions of state

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                                        No. 10-50029

law”). A district court has “wide discretion” in deciding whether it should retain
jurisdiction over state law claims once all federal claims have been eliminated.
Guzzino, 191 F.3d at 595. Thus, we are right to hesitate in rejecting the district
court’s exercise of its discretionary authority, as the general rule of remanding
state law claims to state court after all federal claims have been eliminated is
“neither mandatory nor absolute.” Batiste v. Island Records Inc., 179 F.3d 217,
227 (5th Cir. 1999) (citing McClelland, 155 F.3d at 519); see also Brookshire
Bros., 554 F.3d at 602. But such discretion is founded upon and guided by a
court’s consideration of the prescribed statutory and common law factors. Our
deference cannot stretch so far as to find no abuse of discretion where, as is the
case here, all federal claims were deleted at the infancy of the case and the
balance of the statutory and common law factors weighs heavily in favor of
remand.
       Parker & Parsley is the primary case where we found that a district court
abused its discretion in failing to relinquish jurisdiction over pendent state law
claims.1 In Parker & Parsley, a case originally filed in federal court, the sole
federal claim was dismissed after nine months of trial preparation and one
month before the scheduled trial date. 972 F.2d at 582. The district court
retained jurisdiction over state law fraud, contract, and tort claims, and
continued the case for three additional months. Id. Prior to the dismissal of the
federal claim, there had been “a serious attack upon the propriety of venue,
rigorous deposition schedules, ungodly amounts of discovery documents, and a
hearing on discovery disputes.” Id. at 584 (internal marks and citation omitted).



       1
          See also Certain Underwriters at Lloyd’s, London & Other Insurers Subscribing to
Reinsurance Agreements F96/2922/00 & No. F97/2992/00 v. Warrantech Corp., 461 F.3d 568,
578 (5th Cir. 2006). Admittedly our precedents in this area are few. But the relative scarcity
of circuit precedent finding an abuse of discretion for failing to remand speaks strongly to how
often the “general rule” is followed and how carefully district courts typically scrutinize their
pendent jurisdiction.

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The district court, in refusing to surrender jurisdiction over the pendent state
law claims, concluded that “the equities weigh heavily in favor of maintenance
of the case,” and went on to hold a full trial and render judgment on the state
law claims. Id. at 584-85. After a lengthy and detailed discussion where it
“consider[ed] and weigh[ed] all the factors present in th[e] case,” this court
reversed the district court, finding that the failure to remand was an abuse of
discretion. Id. at 590.
      In Parker & Parsley, we carefully analyzed the Carnegie-Mellon factors,
expressly mentioning that “[n]o single factor . . . is dispositive.” Id. at 587. In
its consideration, the court noted a number of facts and circumstances weighing
in favor of relinquishing jurisdiction: (i) the case was “only nine months” old; (ii)
trial was “still a few weeks away;” (iii) “discovery had not been completed;” (iv)
the case was “at an earlier stage than the parties and the court previously might
have thought” due to an amended complaint which changed the theories of the
case; (v) the district judge did not have “substantial familiarity with the merits
of the case;” (vi) the remaining state law issues were “difficult ones;” (vii)
remaining in federal court did not “prevent[] redundancy [or] conserve[]
substantial judicial resources;” (viii) there would be no “undue inconvenience”
such as a “tremendous financial drain” or a necessity for new legal research; (ix)
the already completed discovery “was largely usable in the state proceeding;” (x)
the parties would not be prejudiced by remand; and (xi) the “important interests
of federalism and comity” heavily favored remand. Id. at 587-89.
      Careful examination shows that the circumstances in Parker & Parsley did
not favor the relinquishment of jurisdiction nearly as strongly as do the
circumstances here in Enochs’s case. When this case became a purely Texas
state law dispute, it was still in its infancy (less than three months old), no
discovery had occurred, no hearings or trial dates had been scheduled, the
district court was not even moderately familiar with any of the Texas state law

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                                 No. 10-50029

issues, no financial or other inconvenience would have occurred, and no
prejudice would have arisen. These facts favor remand more heavily than the
facts of Parker & Parsley.
                                      IV.
      Because the balance of the statutory and common law factors weighs
heavily in favor of remanding the pendent Texas state law claims, and because
Carnegie-Mellon does not permit us to turn any allegation of improper forum
manipulation into a trump card which can defeat the heavy balance of the other
relevant considerations, we hold that the district court abused its discretion
when it denied Enochs’s motion to remand. The courts in this circuit must
remain diligent in following the Supreme Court’s almost fifty-year-old command
that federal courts avoid needless decisions of state law.
      For the foregoing reasons we vacate the district court’s grant of summary
judgment in favor of County on each Texas state law claim, reverse the district
court’s denial of Enochs’s motion to remand, and remand the case with
instructions to the district court to remand the Texas state law claims to the
Texas state court from which the case was removed.
REVERSED and REMANDED.




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                                  No. 10-50029

EDWARD C. PRADO, Circuit Judge, dissenting:
      I must disagree with my colleagues, whom I respect greatly, that the
district court’s decision to decline to remand a case properly before it amounted
to an abuse of discretion. Section 1367(c)’s text and Supreme Court precedent
make clear that there is no bright-line rule for determining whether a district
court should retain pendent state-law claims, and our own precedent directs us
to review these decisions mindful of the “wide discretion vested in the trial court
to order a remand of state claims on the heels of a dismissal of federal claims.”
Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999) (citation omitted). The
majority glosses over these first principles and nonetheless concludes that the
district court abused its discretion simply because the common-law factors weigh
in favor of remand. This, plain and simple, is de novo review and amounts to
back-seat driving in precisely the type of decision in which we should be wary of
second-guessing the judgment of the district court.        I cannot condone my
colleagues’ decision to strip the district court of that “wide discretion” simply
because they weigh the factors differently than the trial court.
      My conviction that my colleagues are wrong in this case stems, in part,
from my nineteen years as a federal district judge, during which time I was often
placed in the same situation as the district court here. To be sure, I agree with
the majority that the common-law factors in this case weigh in favor of remand.
If I were still a trial judge facing the same situation I would likely have
remanded the remaining claims to state court, as would most judges. That is
not, however, our inquiry here. Rather, we must ask whether the facts of this
case weigh so strongly in favor of remand that a district court with proper
supplemental jurisdiction over Enochs’s claims not only should have, but was
required to remand the claims to state court. As far as I can tell, we have only
found this to be the case once, almost twenty years ago and on facts, as I will
explain, that are distinguishable from this case. See Parker & Parsley Petroleum

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                                       No. 10-50029

Co. v. BJ-Titan Servs. Co., 972 F.2d 580, 587 (5th Cir. 1992). I simply do not
believe that the factors here weigh so strongly in favor of remand that the
district court’s decision to retain and expeditiously dispose of Enochs’s pendent
state-law claims constituted an abuse of its wide discretion.
      A.       28 U.S.C. § 1367(c) Is Not a Balancing Test
      As an initial matter, I object to the majority’s treatment of the four
enumerated circumstances in which a court may decline to exercise
supplemental jurisdiction under 28 U.S.C. § 1367(c) as a balancing test.
Section 1367(c) authorizes a court to decline to exercise supplemental
jurisdiction over a state-law claim if (1) the claim raises a novel or complex issue
of state law; (2) the claim substantially predominates over any federal claims;
(3) the district court has already dismissed all federal claims; or (4) there are
exceptional circumstances or other compelling reasons to decline jurisdiction.
On its face, § 1367(c) is a list of situations in which it may be permissible for a
district court to remand pendent state-law claims, and not a set of factors to be
balanced. The statute separates the subsections by the word “or,” indicating
that only one of the four factual scenarios need be present before a district court
may properly, in its discretion (by applying the Carnegie-Mellon 1 or other
common-law factors), decline to exercise supplemental jurisdiction.
      Section 1367 was passed as part of the Judicial Improvements Act of 1990,
Pub.L. No. 101-650, 104 Stat. 5089–5136, effective to suits filed after December
1, 1990. See Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1018–19 (5th
Cir. 1993). Starting with McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir.
1998), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d
433 (5th Cir. 2003), we departed from our prior precedent and began treating the
§ 1367(c) list of circumstances in which a federal court may decline to exercise



      1
          Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343 (1988).

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supplemental jurisdiction as a distinct set of factors to be balanced, akin to the
Carnegie–Mellon common-law factors.2 Previously, we considered § 1367(c) to
merely be a list of conditions—of which only one need be present—upon which
a court could exercise its discretion to dismiss or remand pendent state-law
claims. See Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 328
& n.35 (5th Cir. 1998) (mentioning § 1367(c), but applying only the
Carnegie–Mellon common-law factors); see also Doddy v. Oxy USA, Inc., 101 F.3d
448, 455–56 (5th Cir. 1996) (same). While our sister circuits differ as to whether
they believe § 1367 alters judicial discretion under the Carnegie–Mellon and
Gibbs3 framework or merely incorporates it, only one other circuit4 arguably


       2
         In McClelland, the district court examined the § 1367(c) elements, concluded none
applied, and summarily retained supplemental jurisdiction. 909 F. Supp. 457, 464 (E.D. Tex.
1995). We, however, disagreed that the case presented justiciable federal-law claims,
evaluated each part of § 1367(c), and concluded that remand was appropriate based on the
statute alone. McClelland, 155 F.3d at 519–20. McClelland therefore incorrectly applied
existing precedent twofold: by, for the first time, treating the § 1367(c) factors as a balancing
test, and by failing to evaluate the Carnegie–Mellon common-law factors we have long used
as a balancing test.
       3
           United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966).
       4
         See Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001). The Fourth
Circuit in Hinson stated:
       The exercise of discretion in these circumstances involves two overlapping
       decisions to be made by the district court—whether to continue exercising
       federal jurisdiction over pendent claims and whether to remand the case to
       State court. Section 1337(c) lists factors to inform the decision of whether to
       exercise federal jurisdiction over pendent State claims, such as whether the
       State claims involve novel or complex issues of State law; whether the State law
       claims predominate; whether the federal claims justifying the court’s
       jurisdiction remains in the case; or other compelling reasons. And when the
       exercise of this discretion involves the additional question of whether to remand
       the case to State court, the federal court should consider principles of economy,
       convenience, fairness, and comity and whether the efforts of a party in seeking
       remand amount to a manipulative tactic.
239 F.3d at 617. (internal quotation marks and citation omitted). Yet even the Fourth Circuit
at best is uneven in how it applies § 1367(c) and evaluates discretionary remand decisions.
See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (noting that § 1367(c) provides that
courts “may decline” to exercise supplemental jurisdiction in certain circumstances, and
stating that “[a]mong the factors that inform this discretionary determination are” the

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                                        No. 10-50029

engages in anything similar to the § 1367(c) “balancing” that the Fifth Circuit
has recently engaged in.5


Carnegie–Mellon factors).
       Nor does the Eighth Circuit’s somewhat murky case law support our Circuit’s recent
practice. That Circuit most frequently cites to Gibbs and Carnegie–Mellon (and their Eighth
Circuit progeny) when it addresses § 1367(c) remands. See, e.g., Barstad v. Murray Cnty., 420
F.3d 880, 888 (8th Cir. 2005) (“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.” (quoting Carnegie–Mellon, 484 U.S.
at 350 n.7 (internal quotation marks omitted))); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.
1994) (“[Section 1367(c)] plainly allows the district court to reject jurisdiction over
supplemental claims only in the four instances described therein.”). The Eighth Circuit has
once stated, however, that it “look[s] to the factors set forth in § 1367(c)” without explaining
what that means. Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1037 (8th Cir. 1999).
Whether the Fielder court meant to engage in balancing of the § 1367(c) “factors” as this Court
has recently done, however, is doubtful. See id. at 1038 (citing Anglemyer v. Hamilton Cnty.
Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (applying Carnegie–Mellon factors), and Parker, 972
F.2d 580 (applying Carnegie–Mellon factors)).
       5
          All of the other circuits engage in the traditional common-law analysis and do not
balance the § 1367(c) “factors.” See Estate of Amergi ex rel. Amergi v. Palestinian Auth., 611
F.3d 1350, 1366 (11th Cir. 2010) (“If one of these four statutory factors [of § 1367(c)] applies,
courts may also consider additional factors, which include judicial economy, convenience,
fairness to the parties, and whether all the claims would be expected to be tried together.”
(internal quotation marks and citation omitted)); Nielander v. Bd. of Cnty. Comm’rs of Cnty.
of Republic, Kan., 582 F.3d 1155, 1172 (10th Cir. 2009) (“In deciding whether to exercise
jurisdiction [under § 1367(c)], the district court is to consider “judicial economy, convenience,
fairness, and comity.”); Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 906–08 (7th Cir.
2007) (explaining that § 1367(c) codified common-law pendent jurisdiction principles (with
changes), noting that a court may dismiss a claim under § 1367(c)(3) where it meets one of the
four criteria “without having to consider the [other] criteria,” and explaining that the Seventh
Circuit’s precedent identifies specific circumstances (in common law) in which that
discretionary authority should not be exercised); Blakely v. United States, 276 F.3d 853, 863
(6th Cir. 2002) (“28 U.S.C. § 1367(c), itself, makes clear that a district court may, not must,
decline to exercise supplemental jurisdiction [where the federal claims are dismissed]. The
district court’s decision to exercise supplemental jurisdiction at this point depends on judicial
economy, convenience, fairness, and comity.” (internal quotation marks and citation omitted));
Itar–Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 446–48 (2d Cir. 1998)
(holding that § 1367 altered Gibbs’s discretionary pendent-jurisdiction analysis, adopting a
framework that “[o]nce a court identifies one of the factual predicates which corresponds to
one of the subsection 1367(c) categories, the exercise of discretion is informed by whether
remanding the pendent state claims comports with the underlying objective of” the
Carnegie–Mellon factors, and determining that the district court improperly remanded state-
law claims when it evaluated the Carnegie–Mellon factors without first determining whether
one of the enumerated § 1367(c) conditions applied (internal quotation marks omitted)); Acri

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                                        No. 10-50029

       Our recent practice of engaging in § 1367(c) “balancing” has no foundation
in the statute’s text, our own precedent, or in the practice of our sister circuits.
“[W]here two previous holdings or lines of precedent conflict, the earlier opinion
controls and is the binding precedent in the circuit.” United States v. Wheeler,
322 F.3d 823, 828 n.1 (5th Cir. 2003) (internal quotation marks and citation
omitted) (alteration in Wheeler). The majority, in error, follows the more recent
line of cases from our Circuit and weighs the § 1367(c) “factors” in this case in
addition to separately weighing the Carnegie–Mellon common-law factors.6
Here, the district court could have declined to exercise supplemental jurisdiction
over Enochs’s state-law claims because all of the federal claims had been
dismissed from the litigation. This observation is sufficient under our own
precedent to turn to whether the common-law factors articulated in
Carnegie–Mellon or any other relevant considerations indicate that the district
court’s continued exercise of supplemental jurisdiction was an abuse of
discretion.


v. Varin Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“While discretion to decline to
exercise supplemental jurisdiction over state law claims is triggered by the presence of one of
the conditions in § 1367(c), it is informed by the Gibbs values of economy, convenience,
fairness, and comity.” (internal quotation marks omitted)); Roche v. John Hancock Mut. Life
Ins. Co., 81 F.3d 249, 256–57 (1st Cir. 1996) (noting that § 1367(c)(3) applied and stating that
the trial court was to evaluate whether it should retain jurisdiction over remaining state-law
claims taking into account the common-law factors); Edmonson & Gallagher v. Alban Towers
Tenants Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995) (noting that § 1367 codified Gibbs, and that
the decision whether to exercise supplemental jurisdiction is “guided by consideration of the
[§ 1367(c)] factors,” and stating that “Gibbs determines the framework in which [the § 1367(c)
circumstances] are to be considered, mentioning judicial economy, convenience, fairness and
comity as relevant”); Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788–89 (3d Cir. 1995)
(explaining that § 1367(c) was intended to codify pendent jurisdiction law in Gibbs, stating
that only one of the § 1367(c) criteria was allegedly applicable in the case (subsection (2)), and
conducting a Gibbs/Carnegie–Mellon analysis of that criteria/factor).
       6
         Even assuming our precedent requires us to balance the §1367(c) “factors,” those
factors only modestly weigh in favor of the district court declining jurisdiction. Only Enochs’s
Texas Government Code § 614 claim requires interpreting Texas law without guidance from
the Texas Supreme Court (the § 1701.456(b) argument can be resolved without addressing the
sovereign-immunity-waiver issue), and there are no exceptional circumstances in this case.

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                                   No. 10-50029

      B.     The District Court Did Not Abuse Its Discretion
      I agree that the common-law factors of judicial economy, convenience,
fairness, and comity weigh in favor of declining jurisdiction, but do not believe
they weigh so clearly or overwhelmingly that the district court abused its
discretion in retaining and deciding Enochs’s state-law claims. The judicial-
economy factor considers whether there would be any “significant additional
burdens on the parties such as repeating the effort and expense of the discovery
process[ or] the relitigation of procedural matters” either by staying in federal
court or by going back to state court. See Brookshire Bros. Holding, Inc. v. Dayco
Prods., Inc., 554 F.3d 595, 603 (5th Cir. 2009). This factor is neutral: the district
court was already slightly familiar with the case and had issued a ruling on a
motion to dismiss, but the case was in its early stages, and a state court could
easily catch up had the case been remanded.          Convenience favors remand
because all parties, witnesses, and evidence are in Lampasas County, and the
federal district court is seventy miles away in Austin. Seventy miles is not,
however, so great a distance as to be unduly burdensome. Fairness to the
parties did not weigh either way, as neither party would have been prejudiced
by having the case tried in federal court or in state court. At most, it would be
fairer to the parties to have Enochs’s novel § 614 claim decided by a state court.
Comity favors remand, as it always does in these situations, because federal
courts are courts of limited jurisdiction, and Texas state courts have superior
familiarity with, and heightened interests in developing, Texas state law.
      In addition to providing the above list of common-law factors to consider,
Carnegie–Mellon also admonished federal courts to guard against improper
forum manipulation by plaintiffs by denying motions to remand where
appropriate. 484 U.S. at 357; see Brown v. Sw. Bell Tel. Co., 901 F.2d 1250, 1255
(5th Cir. 1990) (“[I]t is apparent that by dropping his admittedly preempted
claims and moving for a remand, Brown attempted to engage in precisely the

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                                       No. 10-50029

sort of forum manipulation proscribed by Carnegie–Mellon.”).7 We have followed
Carnegie–Mellon’s admonition and condoned district courts’ decisions to retain
pendent state-law claims when plaintiffs attempt to evade removal jurisdiction:
        [W]e express our disapproval of Burks’s attempt at forum
        manipulation. He has tried and failed to delete all of the federal
        claims from his complaint in order to get the district court to
        remand. In Carnegie–Mellon, . . . the Court urged the lower federal
        courts to guard against such manipulation by denying motions to
        remand where appropriate.

Burks v. Amerada Hess Corp., 8 F.3d 301, 306 (5th Cir. 1993), abrogated on other
grounds by Giles, 172 F.3d 332. And as we stated in Boelens v. Redman Homes,
Inc.:
        When a plaintiff chooses a state forum, yet also elects to press
        federal claims, he runs the risk of removal. A federal forum for
        federal claims is certainly a defendant’s right. If a state forum is
        more important to the plaintiff than his federal claims, he should
        have to make that assessment before the case is jockeyed from state
        court to federal court and back to state court. The jockeying is a
        drain on the resources of the state judiciary, the federal judiciary
        and the parties involved; tactical manipulation [by the] plaintiff
        . . . cannot be condoned.

759 F.2d 504, 507 (5th Cir. 1985) (citation omitted) (alterations in original).
Enochs’s simultaneous motions to dismiss and to remand could have been seen
as a clear attempt to get his case sent back to state court.
        While the majority makes the uncontroversial statement that “plaintiffs
get to pick their forum and pick the claims they want to make unless they are
blatantly forum shopping,” Guzzino, 191 F.3d at 595, forum manipulation may
be exactly what Enochs engaged in. As we made clear in Boelens, Enochs was


        7
         In Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th Cir. 1999), we noted
that deleting preempted federal claims is not forum manipulation because those claims are
not “valid causes of action.” How our Circuit comes down on this issue is irrelevant, as it is
not argued that Enochs’s claims are preempted.

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                                       No. 10-50029

the master of his complaint and put his choice of forum at risk when he alleged
federal claims. Lampasas County properly removed the case, and if Enochs
wanted so desperately to avoid trying his claims in federal court he should have
made the tactical decision not to plead any federal claims from the outset. The
district court could have properly viewed his motions to amend and remand as
forum shopping and thus properly denied the motion to remand.                           This
consideration is not, as the majority paints it, a “trump card” that overrides the
other factors also articulated in Carnegie–Mellon; rather, it is an additional
factor to be weighed that, in this case, makes it clear to me that the district
court’s decision to keep the state-law claims was within its wide discretion and
should not be disturbed.
       We have only once found that a district court improperly exercised
supplemental jurisdiction over pendent state-law claims after the federal claims
had dropped out of the litigation.8 Parker, 972 F.2d at 587. In Parker, we
explained that the plaintiff filed a second amended complaint that “markedly
revised its theories of recovery” in almost every respect one week before the
motion to dismiss was filed, and “[t]he filing of a pleading that so substantially
changed important aspects of the case meant that the case was at an earlier
stage than the parties and the court previously might have thought.” Id. Here,
the case was in district court for almost three months when the federal claims
dropped out and the plaintiff engaged in a seemingly transparent effort to have
his case sent back to state court. The district court was at a minimum familiar
with Enochs’s federal claims after deciding a motion to dismiss, and had ample



       8
          Certain Underwriters at Lloyd’s, London and Other Insurers Subscribing to
Reinsurance Agreements F96/2922/00 v. Warrantech Corp., 461 F.3d 568, 578 (5th Cir. 2006),
is inapposite because it involved state-law counterclaims that “rode into federal court on the
coattails” of arbitration-related affirmative defenses that were determined to be meritless.
The counterclaims arose “out of separate and independent actions” and were collateral and not
related to the heart of the suit.

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                                  No. 10-50029

time to review all of Enochs’s claims and determine whether his state-law claims
merited resolution by the state court. Furthermore, in Parker the plaintiff
originally brought suit in federal court and had its only federal claim dismissed
by the district court on a motion to dismiss shortly after it filed its second
amended complaint. Whereas this case likely presents a concerted effort by the
plaintiff to “oust removal jurisdiction by voluntarily amending the complaint to
drop all federal questions,” there was no such taint of forum manipulation in
Parker. See Boelens, 759 F.2d at 507. In short, Parker does not control the
outcome of this case.
      We should be wary to go down a path that transforms the “general rule”
of exercising discretion not to hear proper pendent state-law claims into a bright-
line dictate removed from district judges’ experience and familiarity with the
parties and merits of the claims before it. While remanding the case to state
court may have been the more prudent choice, there are ample considerations
that weigh in favor of retaining jurisdiction. In light of the difficulty with which
this decision must be weighed, I cannot be as quick to second-guess that decision
as my colleagues.
      I therefore respectfully dissent.




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