The opinion of the court was delivered by: Shadur, District Judge.
Doctor Stephen Laga ("Laga") has sued University of Health
Sciences/The Chicago Medical School and Dr. William Schumer in a
five-count complaint, the first four counts of which assert state
claims and the fifth of which claims under 42 U.S.C. § 1983
("Section 1983"). Because of the Section 1983 claim defendants
removed the action from the Circuit Court of Cook County (where
Laga had filed suit) to this Court. Laga now seeks leave to
dismiss Count V with prejudice, and defendants object.
No reason has been advanced by defendants for not permitting
Laga to shape his own lawsuit. This case is in its earliest
stages, and no considerations of judicial economy or any other
cogent public policy require denial of Laga's motion.
That issue behind us, the question becomes what to do with the
action itself. It is obvious that Laga's motion is intended to
eliminate the one predicate for jurisdiction in this Court — a
forum not chosen by him. Defendants respond by pointing to
authorities that hold a plaintiff cannot force a remand of a
properly-removed case by a tactical dismissal of the federal
claims in a multi-claim action. In re Greyhound Lines, Inc.,
598 F.2d 883, 884 (5th Cir. 1979); Hazel Bishop, Inc. v. Perfemme,
Inc., 314 F.2d 399, 403-04 (2d Cir. 1963); Brown v. Eastern
States Corp., 181 F.2d 26, 28-29 (4th Cir.), cert. denied,
340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950).
Those cases (and the other authorities advanced by defendants)
deal however only with the non-destruction of this Court's
jurisdiction by elimination of the federal claim that served as
the original predicate for acquiring such jurisdiction. After
all, 28 U.S.C. § 1447(c) states limited grounds for remand
("removed improvidently and without jurisdiction"), and such
elimination of federal claims is not one of them.
But what defendants fail or refuse to recognize is that this
Court has the right to view the case in its modified posture to
determine whether admitted jurisdiction — power — should be
exercised over the pendent claims that are left. That is the
teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86
S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), which after stating
"That power need not be exercised in every case in which it is
found to exist," went on to say in language that might have been
written for this case:
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. Similarly, if it appears that the
state issues substantially predominate, whether in
terms of proof, of the scope of the issues raised, or
of the comprehensiveness of the remedy sought, the
state claims may be dismissed without prejudice and
left for resolution to state tribunals.
Indeed the most recent case cited by defendants themselves, In re
Carter, 618 F.2d 1093, 1104-05 (5th Cir. 1980), cert. denied,
450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981) makes that
This Court exercises its discretion under Gibbs by dismissing
the entire action (after elimination of Count V) without
prejudice. It thus permits Laga to start again in the Circuit
Court of Cook County, where he always expected to be, and where
the state court can deal with wholly state-based claims.
Defendants argue that if this Court orders dismissal, it should
impose as a condition Laga's payment of defendants' attorneys'
fees. That contention is grounded on the notion that the removal
papers and the federal pleadings they have filed will have to be
superseded by state court pleadings, involving them in
duplicative work. As this Court stated when that argument was
first presented orally, it is totally unpersuasive, much like the
charged with murdering his parents, who asked for mercy because
he was an orphan.*fn1
Count V is dismissed with prejudice, and the balance of this
action is dismissed in its entirety without prejudice.
Defendants' oral motion for the imposition ...