                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 20 2009

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DEBORAH DOERFLER-CASNER,                         No. 06-16881

             Plaintiff - Appellant,              D.C. No. CV-03-1864-WBS

  v.
                                                                     *
                                                 MEMORANDUM
PLACER COUNTY DEPARTMENT OF
PUBLIC WORKS,

             Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                            San Francisco, California


Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District Judge.


       Two separate issues are raised in this appeal by Deborah Doerfler-Casner from


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, United States District Judge,
Eastern District of New York, sitting by designation.

                                          1
(1) a judgment entered in favor of Placer County Department of Public Works after

jury verdict on her Title VII claim and (2) an order of the district court granting

summary judgment in favor of Placer County on her pendent state law claims. We

assume the parties’ familiarity with the factual background and procedural history.

                                           I

      Doerfler-Casner challenges the instructions and special verdict sheet the district

court submitted to the jury on her gender discrimination claim against Placer County.

Both parties agreed to jury instructions and special verdict questions which suggested

that the plaintiff had to establish she was the victim of conduct “of a sexual nature.”

The jury returned a verdict in favor of Placer County. Doerfler-Casner argues

correctly that the phrase “of a sexual nature” in the jury instructions and special

verdict questions was erroneous.

      Because Doerfler-Casner did not object to the jury instructions or special

verdict questions, they are reviewable for plain error only. See Fed. R. Civ. P.

51(d)(2). In evaluating whether a particular jury instruction was plainly erroneous, we

consider the jury instructions as a whole. See Swinton v. Potomac Corp., 270 F.3d

794, 802 (9th Cir. 2001).

      Although the district court’s use of the phrase “of a sexual nature” was

incorrect, it does not meet the standard for “plain error.” When the jury asked for



                                           2
clarification, the district judge accurately defined it. Although the jury requested

clarification only with respect to Question 5 of the verdict sheet and the district court

did not explicitly state that the definition applied to the phrase as used throughout the

jury instructions and special verdict questions, there is no reason to conclude that it

did not apply the correct definition to all uses of the phrase. Indeed, during a nine-day

trial, both parties repeatedly discussed discrimination on the basis of gender, including

at length during their closing arguments. In light of both the district court’s response

to the jury’s question and the evidence and arguments presented at trial, the phrase did

not constitute plain error.

                                           II

      Doerfler-Casner also argues that the district court should not have granted

Placer County’s motion for summary judgment on her pendent state law claims for

assault and battery. The district court dismissed Doerfler-Casner’s § 1983 claims,

from which no appeal was taken, and we are affirming the judgment in favor of Placer

County on the Title VII claim. Although the disposition of all federal claims does not

deprive us of subject matter jurisdiction over the pendent state law claims, see Rosado

v. Wymam, 397 U.S. 397, 405 (1970), we may in our discretion decline to exercise

jurisdiction over them, see United Mine Workers of America v. Gibbs, 383 U.S. 715,

727 (1966) (“[T]he issue whether pendent jurisdiction has been properly assumed is



                                           3
one which remains open throughout the litigation.”).

      Our affirmance of the judgment entered on the jury verdict with respect to the

Title VII cause of action means that “this case [now] involves a complete ‘hegemony

of state law claims,’ such that relinquishment of federal court jurisdiction is

warranted,” Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir. 1994), because it would

require us to grapple with questions of California law to determine whether summary

judgment was properly granted. This is an exercise that should properly be performed

by the California courts. Thus, we vacate the summary judgment order with

instructions to dismiss the pendant state law claims without prejudice.


                                  CONCLUSION

      The district court’s judgment entered in accordance with the jury verdict is

affirmed. The district court’s order granting summary judgment for Placer County on

Doerfler-Casner’s pendent state law claims is vacated with instructions to dismiss the

claims without prejudice.1

      AFFIRMED in part; VACATED and REMANDED in part. Each party to

bear its own costs on appeal.




      1
              We note that the statute of limitations on the supplemental state law
claims is tolled during the pendency of the federal action. See 28 U.S.C. § 1367(d).


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