Survival Sys. Of The Whittaker Corp. v. United States Dist. Court For The S. Dist. Of California, 825 F.2d 1416 (9th Cir. 1987). · Go Syfert
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Survival Sys. Of The Whittaker Corp. v. United States Dist. Court For The S. Dist. Of California, 825 F.2d 1416 (9th Cir. 1987). Cases Citing This Book View Copy Cite
79 citation events (10 in the last 25 years) across 4 distinct courts.
Strongest positive: California Department of Water Resources v. Powerex Corp. (ca9, 2008-07-22) · Strongest negative: Mary Ann Hansen v. Blue Cross of California Ventura County Foundation for Medical Care (ca9, 1989-12-18)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited "but see" Mary Ann Hansen v. Blue Cross of California Ventura County Foundation for Medical Care (2×) also: Cited "see"
9th Cir. · 1989 · signal: but see · confidence high
The court relied in part on the res judicata effect of the preemption determination inherent in the remand); but see Survival Systems, 825 F.2d at 1418 (denying a writ of mandamus when the district court concluded that it had subject matter jurisdiction over some of the plaintiffs claims but remanded one on the ground that it “was not an artfully pled federal claim that was preempted by federal labor law.
discussed Cited as authority (rule) California Department of Water Resources v. Powerex Corp.
9th Cir. · 2008 · confidence medium
Generally, when a district court remands to state court after exercising its discretion to decline supplemental state law claims, an aggrieved party must seek mandamus relief. 5 This rule was first announced in *1093 Survival Systems Division of the Whittaker Corp. v. U.S. District Court, 825 F.2d 1416, 1418 (9th Cir.1987), and has been reaffirmed in subsequent cases, see, e.g., Executive Software N. Am., Inc. v. U.S. Dist.
discussed Cited as authority (rule) Michael Akins Betty Akins v. Ronald J. Rodriguez American Nuclear Insurers, Inc.
9th Cir. · 1994 · confidence medium
Lodge, 827 F.2d 589, 592 (9th Cir.1987) (“If a district court remands for reasons permitted under section 1447(c), the remand is not reviewable; but if the court remands for other reasons, the order is subject to review.”); Survival Systems Div. of the Whittaker Corp. v. United States District Court, 825 F.2d 1416, 1418 (9th Cir.1987) (removal had not been without jurisdiction; therefore the statutory preclusion of review under § 1447(c) is not applicable), cert. denied, 484 U.S. 1042 , 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988); see also FSLIC v. Frumenti Dev.
discussed Cited as authority (rule) Roberta Lee, Guardian Ad Litem Avril King Brenda Walls v. The City of Beaumont (2×)
9th Cir. · 1993 · confidence medium
Div. of Whittaker Corp. v. United States, 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied, 484 U.S. 1042 , 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988)).
discussed Cited as authority (rule) Florian Sever v. Alaska Pulp Corporation Dennis Huse George Woodbury Jesse Cline Frank Roppel George Ishiyama Wayne Funk Ralph Fenner, Florian Sever v. Alaska Pulp Corporation Dennis Huse George Woodbury Jesse Cline Frank Roppel George Ishiyama Wayne Funk Ralph Fenner (2×)
9th Cir. · 1992 · confidence medium
However, if a case is remanded on the ground that removal was improvident and without jurisdiction, 28 U.S.C. § 1447 (c) (1982), the remand order "is not reviewable on appeal or otherwise." 28 U.S.C. § 1447 (d); Thermtron, 423 U.S. at 346 [ 96 S.Ct. at 590 ]. 44 [Where removal is not pursuant to § 1447(d), a] question exists as to whether the order is reviewable by direct appeal [or only on a writ of mandamus].... [A] remand order may be reviewed on appeal as a final collateral order under 28 U.S.C. § 1291 if the order resolves the merits of a matter of substantive law apart from any juris…
discussed Cited as authority (rule) Sever v. Alaska Pulp Corp. (2×)
9th Cir. · 1992 · confidence medium
Survival Systems v. United States District Court for the Southern District of California, 825 F.2d 1416, 1418 (9th Cir. 1987) (emphasis added) (citations omitted), cert. denied, 484 U.S. 1042 , 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988).
discussed Cited as authority (rule) Federal Deposit Ins. Corp. v. Mulkey
9th Cir. · 1989 · confidence medium
Ct., 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988). 1 DISCUSSION 7 A. Dismissal of Cross-Claim For Mandamus. 8 A court may not grant a party's request for mandamus against a United States agency unless that party first establishes two facts.
discussed Cited as authority (rule) National Audubon Society, Plaintiff/cross-Defendant/appellee v. Department of Water, and State of California, Defendant/cross-Complainant/appellant. National Audubon Society Friends of the Earth Mono Lake Committee Los Angeles Audubon Society David Gaines Charles K. Simis Walter T. Hansen and John E. Boynton, Plaintiffs/cross-Defendants/appellants v. Department of Water, and State of California, Defendant/cross-Complainant/appellee. National Audubon Society, a Corporation, Plaintiffs/cross-Defendants/appellees v. Department of Water & Power of the City of Los Angeles, Defendant/cross-Complainant v. United States of America, Cross-Defendants, and State of California, Cross-Defendants/cross-Complainant/appellant. National Audubon Society, a Corporation, Plaintiffs/cross-Defendants/appellees v. Department of Water & Power of the City of Los Angeles, Defendant/cross-Complainant/appellant v. United States of America, Cross-Defendants, and State of California, Cross-Defendants/cross-Complainant. National Audubon Society, a Corporation, Plaintiffs/cross-Defendants/appellants v. Department of Water & Power of the City of Los Angeles, Defendant/cross-Complainant/appellees v. United States of America, Cross-Defendants, and State of California, Cross-Defendant/cross-Complainant
9th Cir. · 1989 · confidence medium
While it is not clear whether we review such a remand order under the abuse of discretion standard or the clearly erroneous standard, see Survival Systems Division of the Whittaker Corp. v. United States District Court, 825 F.2d 1416, 1419, n. 2 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988), we affirm the district court's decision to remand because it satisfies both standards. 50 The district judge remanded the state claims to state court because he thought the state judiciary was better suited to decide the state law issues.
discussed Cited as authority (rule) National Audubon Society, Plaintiff/cross-Defendant/appellee v. Department of Water, and State of California, Defendant/cross-Complainant/appellant. National Audubon Society Friends of the Earth Mono Lake Committee Los Angeles Audubon Society David Gaines Charles K. Simis Walter T. Hansen and John E. Boynton,plaintiffs/cross-Defendants/appellants v. Department of Water, and State of California, Defendant/cross-Complainant/appellee. National Audubon Society, a Corporation, Plaintiffs/cross v. Department of Water & Power of the City of Los Angeles, Defendant/cross v. United States of America, Cross-Defendants, and State of California, Cross-Defendants/cross-Complainant/appellant. National Audubon Society, a Corporation, Plaintiffs/cross v. Department of Water & Power of the City of Los Angeles, Defendant/cross- Complainant/appellant v. United States of America, Cross-Defendants, and State of California, Cross-Defendants/cross-Complainant. National Audubon Society, a Corporation, Plaintiffs/cross v. Department of Water & Power of the City of Los Angeles, Defendant/cross- Complainant/appellees v. United States of America, Cross-Defendants, and State of California, Cross-Defendant/cross-Complainant
9th Cir. · 1988 · confidence medium
While it is not clear whether we review such a remand order under the abuse of discretion standard or the clearly erroneous standard, see Survival Systems Division of the Whittaker Corp. v. United States District Court, 825 F.2d 1416, 1419, n. 2 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988), we affirm the district court's decision to remand because it satisfies both standards. 49 The district judge remanded the state claims to state court because he thought the state judiciary was better suited to decide the state law issues.
cited Cited as authority (rule) Seth Rosenfeld v. United States of America the Federal Bureau of Investigation, Defendants- United States Department of Justice, and Federal Bureau of Investigation v. United States District Court for the Northern District of California, Seth Rosenfeld, Real Party in Interest
9th Cir. · 1988 · confidence medium
Court, 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied --- U.S. ----, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988).
cited Cited as authority (rule) Rosenfeld v. United States
9th Cir. · 1988 · confidence medium
Court, 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied — U.S. -, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988).
discussed Cited as authority (rule) National Audubon Society v. Department of Water
9th Cir. · 1988 · confidence medium
While it is not clear whether we review such a remand order under the abuse of discretion standard or the clearly erroneous standard, see Survival Systems Division of the Whittaker Corp. v. United States District Court, 825 F.2d 1416, 1419, n. 2 (9th Cir.1987), ce rt. denied, — U.S. -, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988), we affirm the district court’s decision to remand because it satisfies both standards.
discussed Cited as authority (rule) National Audubon Society v. Department of Water
9th Cir. · 1988 · confidence medium
While it is not clear whether we review such a remand order under the abuse of discretion standard or the clearly erroneous standard, see Survival Systems Division of the Whittaker Corp. v. United States District Court, 825 F.2d 1416, 1419, n. 2 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988), we affirm the district court’s decision to remand because it satisfies both standards.
discussed Cited as authority (rule) Conrad Schmitt Charles Sackett Daniel Martin Michael Juneau v. Insurance Company of North America, Insurance Company of North America, Cross-Complainant/appellant v. Juneau & Martin, Inc. Dba J.M. Auto Sales, a Corporation, Juneau & Martin, Inc. Dba Century Motors, a Corporation Cross-Defendants, and Michael Juneau, an Individual, Daniel James Martin, an Individual, Cross-Defendants/appellees (2×)
9th Cir. · 1988 · confidence medium
Kaiser Co., 826 F.2d 857, 866 (9th Cir.1987) (citing Clorox and Pelleport ) ("The [remand] order is not reviewable by appeal since it did not resolve a matter of substantive law."); Survival Systems v. United States District Court, 825 F.2d 1416, 1418 (9th Cir.1987) (citing Clorox and Pelleport ) ("We have held that a remand order may be reviewed on appeal as a final collateral order under 28 U.S.C.
discussed Cited as authority (rule) Schmitt v. Insurance Co. of North America (2×)
9th Cir. · 1988 · confidence medium
Kaiser Co., 826 F.2d 857, 866 (9th Cir.1987) (citing Clorox and Pelle-port ) (“The [remand] order is not reviewable by appeal since it did not resolve a matter of substantive law.”); Survival Systems v. United States District Court, 825 F.2d 1416, 1418 (9th Cir.1987) (citing Clorox and Pelleport) (“We have held that a remand order may be reviewed on appeal as a final collateral order under 28 U.S.C. § 1291 if the order resolves the merits of a matter of substantive law apart from any jurisdictional decision.”), cert. denied, — U.S. -, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988); Pelleport…
cited Cited as authority (rule) Paige v. Henry J. Kaiser Co.
9th Cir. · 1987 · confidence medium
As in Survival Systems, mandamus is not proper here because the district court’s order is correct as a matter of law. 825 F. 2d at 1418.
discussed Cited as authority (rule) Donald Paige and Andrew Harris v. Henry J. Kaiser Company, Standard Oil Company of California, Chevron Chemical Company, Eugene Green, and Does 1-20 Inclusive, Henry J. Kaiser Company, Standard Oil Company of California, Chevron Chemical Company v. United States District Court for the Northern District of California, and Donald Paige and Andrew Harris, Real Parties in Interest
9th Cir. · 1987 · confidence medium
Therefore, the only issue decided by the district court was jurisdictional, and review by appeal is not available under Pelleport and Clorox. 45 As in Survival Systems, mandamus is not proper here because the district court's order is correct as a matter of law. 825 F.2d at 1418.
discussed Cited "see" Herman Krangel, Plaintiffs-Respondents v. General Dynamics Corporation, Defendants-Petitioners
9th Cir. · 1992 · signal: see · confidence high
See Survival Systems Division of the Whittaker Corp. v. U.S. District Court, 825 F.2d 1416 (9th Cir.1987), cert. denied, 484 U.S. 1042 , 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988) (discretionary remand orders generally reviewable only by petition for writ of mandamus because such orders do not finally determine a substantive legal issue under the collateral order doctrine).
discussed Cited "see" John W. Ethridge, Jr. v. Harbor House Restaurant, an Unknown Entity Jim Murphy, Individually and as Agent of Harbor House Restaurant, and Does 1-25, John W. Ethridge, Jr., Plaintiff/counter-Defendant/appellant v. San Diego Culinary Concepts, D/B/A Harbor House Jim Murphy, Individually and as Agent of San Diego Culinary Concepts and Does 1-25, Defendants/counter
9th Cir. · 1988 · signal: see · confidence high
See Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967). 67 In Survival Systems v. United States District Court, 825 F.2d 1416 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 774 , 98 L.Ed.2d 861 (1988), we implicitly assumed claims preempted by the NLRA are removable to federal court.
discussed Cited "see, e.g." Executive Software North America, Inc. v. United States District Court for the Central District of California (2×)
9th Cir. · 1994 · signal: see also · confidence medium
Although we note that other circuits construe the collateral order doctrine in this context more broadly, see, e.g., Travelers Ins. v. Keeling, 996 F.2d 1485, 1489 (2d Cir.1993) (finding an order collateral if it “determines whether the dispute will be ... litigated in state court”), and more narrowly, see, e.g., Doughty v. Underwriters at Lloyd’s, 6 F.3d 856, 862-64 (1st Cir.1993); Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st Cir.1993); see also PAS v. Travellers, 7 F.3d 349 , 352-53 (3d Cir.1993) (rejecting the doctrine altogether), in this circuit, to qualify as “coll…
discussed Cited "see, e.g." Executive Software North America, Inc. v. United States District Court For The Central District Of California (2×)
9th Cir. · 1994 · signal: see also · confidence medium
Although we note that other circuits construe the collateral order doctrine in this context more broadly, see, e.g., Travelers Ins. v. Keeling, 996 F.2d 1485, 1489 (2d Cir.1993) (finding an order collateral if it "determines whether the dispute will be ... litigated in state court"), and more narrowly, see, e.g., Doughty v. Underwriters at Lloyd's, 6 F.3d 856, 862-64 (1st Cir.1993); Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st Cir.1993); see also PAS v. Travellers, 7 F.3d 349 , 352-53 (3d Cir.1993) (rejecting the doctrine altogether), in this circuit, to qualify as "collateral" …
discussed Cited "see, e.g." Executive Software North America, Inc. v. United States District Court For The Central District Of California (2×)
9th Cir. · 1994 · signal: see also · confidence medium
Although we note that other circuits construe the collateral order doctrine in this context more broadly, see, e.g., Travelers Ins. v. Keeling, 996 F.2d 1485, 1489 (2d Cir.1993) (finding an order collateral if it "determines whether the dispute will be ... litigated in state court"), and more narrowly, see, e.g., Doughty v. Underwriters at Lloyd's, 6 F.3d 856, 862-64 (1st Cir.1993); Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st Cir.1993); see also PAS v. Travelers, 7 F.3d 349 , 352-53 (3d Cir.1993) (rejecting the doctrine altogether), in this circuit, to qualify as "collateral" t…
discussed Cited "see, e.g." Executive Software North America, Inc. v. United States District Court for the Central District (2×)
9th Cir. · 1994 · signal: see also · confidence medium
Although we note that other circuits construe the collateral order doctrine in this context more broadly, see, e.g., Travelers Ins. v. Keeling, 996 F.2d 1485, 1489 (2d Cir.1993) (finding an order collateral if it “determines whether the dispute will be ... litigated in state court”), and more narrowly, see, e.g., Doughty v. Underwriters at Lloyd’s, 6 F.3d 856, 862-64 (1st Cir.1993); Garcia v. Island Program Designer, Inc., 4 F.3d 57, 60 (1st Cir.1993); see also PAS v. Travelers, 7 F.3d 349 , 352-53 (3d Cir.1993) (rejecting the doctrine altogether), in this circuit, to qualify as “colla…
Retrieving the full opinion text from the archive…
Survival Systems of the Whittaker Corp.
v.
United States District Court for the Southern District of California, and Millie Mae Rodriguez, Real Party in Interest
85-7005.
Court of Appeals for the Ninth Circuit.
Aug 27, 1987.
825 F.2d 1416
Cited by 2 opinions  |  Published

825 F.2d 1416

126 L.R.R.M. (BNA) 2229, 107 Lab.Cas. P 10,105,
2 Indiv.Empl.Rts.Cas. 853

SURVIVAL SYSTEMS OF the WHITTAKER CORP., et al., Petitioners,
v.
UNITED STATES DISTRICT COURT FOR the SOUTHERN DISTRICT OF
CALIFORNIA, Respondent,
and
Millie Mae Rodriguez, Real Party in Interest.

No. 85-7005.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 11, 1985.
Decided Aug. 27, 1987.

Robert C. Hayden, Los Angeles, Cal., for petitioners.

Virginia M. Ebert, San Diego, Cal., for real party in interest.

Appeal from the United States District Court for the Southern District of California.

Before CHOY, HUG and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Rodriguez's state court action, asserting various wrongful discharge claims and claims for intentional and negligent infliction of emotional distress, was removed on the basis of preemption under federal labor laws. The district judge granted summary judgment against Rodriguez on all claims except the claim for intentional infliction of emotional distress, which she remanded to state court. The defendants petition for a writ of mandamus to compel the district court to retain jurisdiction of that claim.

We first face the procedural issues of whether the remand order is reviewable at all and, if so, whether the review should be by appeal or mandamus. We hold that the remand is not appealable, but can be reviewed as a request for a writ of mandamus. The substantive issue in the case is whether the claim for intentional infliction of emotional distress was properly remanded.

I.

FACTS

[*~1416]1

Rodriguez's suit in state court against Whittaker alleged various wrongful discharge claims, intentional infliction of emotional distress, and negligent infliction of emotional distress. Whittaker removed the case to federal court and moved for summary judgment, alleging that each cause of action was preempted by the National Labor Relations Act, and that the statute of limitations had run on these federal claims.

2

Rodriguez conceded that five of her claims were preempted, but argued that her claim for intentional infliction of emotional distress was not preempted, as it was based on state law. Given Rodriguez's stipulation, the district court granted summary judgment as to the other five claims.

3

The district court then denied the motion for summary judgment on the claim of intentional infliction of emotional distress. An emotional distress claim asserted under state law is not preempted if it is "unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself." Farmer v. United Bhd. of Carpenters and Joiners of America, 430 U.S. 290, 305, 97 S.Ct. 1056, 1066, 51 L.Ed.2d 338 (1977). The district court found that several of the facts alleged in Rodriguez's claim would support this type of state cause of action for outrageous conduct, which is not preempted, including claims that Rodriguez was held in a work area against her will by threat of physical force and was requested to commit lewd sexual acts.

4

The district court then remanded this emotional distress claim to state court. Whittaker requests a writ of mandamus to vacate this remand.

II.

REVIEW OF A REMAND ORDER

5

An order remanding an action, if reviewable at all, is ordinarily reviewed by mandamus. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542 (1976). However, if a case is remanded on the ground that removal was improvident and without jurisdiction, 28 U.S.C. Sec. 1447(c) (1982), the remand order "is not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d) (1982); Thermtron, 423 U.S. at 346, 96 S.Ct. at 590.

6

Here, remand could not possibly have been based on section 1447(c); removal had not been "without jurisdiction," since five of Rodriguez's claims were held to be preempted by federal law. The statutory preclusion of review under section 1447(d) is therefore not applicable.

7

A question exists as to whether the order is reviewable by direct appeal, because the requested extraordinary review by mandamus is not available if review can be obtained by appeal. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983). We have held that a remand order may be reviewed on appeal as a final collateral order under 28 U.S.C. Sec. 1291 if the order resolves the merits of a matter of substantive law apart from any jurisdictional decision. Clorox Co. v. U.S. District Court, 779 F.2d 517, 520 (9th Cir.1985); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-78 (9th Cir.1984).

[*~1417]8

In this case, the order of remand did not resolve a matter of substantive law, as in Pelleport or Clorox. The ruling of the district court was that the state cause of action alleged in Rodriguez's complaint was not an artfully pled federal claim that was preempted by federal labor law. This did not finally resolve the issue of preemption, which could still be raised as a defense to the state claim in the state court. Thus, if the proof in state court were such as to justify the conclusion that the cause of action was completely preempted by federal labor law, the defense of preemption could be sustained. The ruling of the district court was simply that the allegations of the complaint did not justify such a result.

9

Thus, the only issue decided by the remand order is the jurisdictional issue, that the claim of intentional infliction of emotional distress was a state claim and not an artfully pled federal claim. The district judge then exercised her discretion in remanding that state claim. Therefore, the remand is not reviewable on appeal as a substantive decision under the doctrine of Pelleport and Clorox. The only avenue of review available is by mandamus under the authority of Thermtron.

III.

ISSUANCE OF A WRIT OF MANDAMUS

10

The issuance of a writ of mandamus is an extraordinary remedy available to the courts of appeal under 28 U.S.C. Sec. 1651 (1982). Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). In Bauman v. U.S. District Court, 557 F.2d 650, 654-55 (9th Cir.1977), we set forth guidelines for when the issuance of a writ of mandamus is appropriate. Although several indicators are specified for consideration in Bauman, one factor is determinative in this case. When the district court's order is correct as a matter of law, it is obvious that the writ of mandamus should not be issued.[1]

11

The Supreme Court's holding in Farmer v. Carpenters, 430 U.S. at 305, 97 S.Ct. at 1066, that a state claim for infliction of emotional distress is not preempted if it was the result of particularly abusive conduct, provides a sound basis for the district court's conclusion that the complaint alleged a non-preempted state claim. The allegations of the complaint, if proved, could sustain a finding that the conduct was outrageous, and thus the claim was not preempted. The district judge's holding was correct that a non-preempted state claim was alleged.

12

While a federal court has jurisdiction to retain and decide a state claim that is not independently removable, once the federal claim upon which removal was based is gone, it is within the discretion of the district court to remand the state claim to the state court from which it was removed. Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir.1986).[2]

[*~1418]13

The petition for a writ of mandamus is denied.

1

The guidelines enumerated in Bauman are (1) The party seeking the writ has no other adequate means to obtain the desired relief, such as a direct appeal; (2) The petitioner will be prejudiced or damaged in a manner not correctable on appeal; (3) The district court's order is clearly erroneous as a matter of law; (4) The district court's order represents an error often made, or is indicative of a persistent disregard of the federal rules; and (5) The district court's order involves new and important issues, generally of first impression. All of these guidelines need not be met and they may not all be applicable in any one case. Bauman, 557 F.2d at 655. With regard to the first two factors, we have noted that Rodriguez has no other avenue of review in federal court; however, the issue of preemption remains open for determination and review in state court. The third factor is determinative. It is apparent that if the district court's legal conclusion is correct, the fourth and fifth enumerated factors become irrelevant

2

We recognize that the circuits are not in agreement as to the availability of remand for pendent claims, and that the Supreme Court has granted certiorari on this issue. Carnegie-Mellon Univ., et al. v. Cohill, --- U.S. ----, 107 S.Ct. 1283, 94 L.Ed.2d 141 (1987). The relevant test, however, is whether the district court court's order was clearly erroneous as a matter of law. Given the Ninth Circuit authority allowing remand under the circumstances of this case, the remand order was obviously not clearly erroneous