32. Should the federal court grant the employee's motion to remand the entire set of claims?

The jurisdiction of federal courts is concurrent with state courts. This means that a particular controversy that is litigable in federal court may also be brought in state court. Where jurisdiction is concurrent, the plaintiff makes the initial decision whether to use state or federal court by filing his case. The defendant then can choose to remove or remain under the state court's jurisdiction.

Generally, any action brought in state court of which the federal courts would have had original jurisdiction may be removed by the defendant to the federal district court. Specifically, 28 U.S.C. § 1441(a) gives the exclusive ability to defendants to remove an action that could have originally been brought by the plaintiff in federal court.

A plaintiff can file a motion to have a case remanded (sent back) to the state court. The federal court has the discretion to remand a case to state court once all federal claims have been resolved, leaving only state claims over which there would be no diversity jurisdiction. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988).

Claims sometimes invoke supplemental jurisdiction when the supplemental claim arises from a common nucleus of operative fact as the original claim, whether the case got into federal court by diversity or federal question jurisdiction.

C is correct. The federal court should not grant the motion to remand the entire set of claims back to state court but should retain jurisdiction over the federal age discrimination claim and may exercise supplemental jurisdiction over the employee's breach of contract claim. This is because the breach of contract claim arose from a common nucleus of operative fact as the federal age discrimination claim. However, the negligence claim arises from a different set of facts and the court has no federal jurisdiction over it. Therefore, the negligence claim should be remanded back to state court.

A is incorrect. Removal is proper when the action brought in state court could have originally been brought in federal court, and no consent from the plaintiff is required. If there are multiple defendants, however, consent from all the defendants is required. Thus, it is incorrect to assert that the employer was required to get the employee-plaintiff's consent. As stated above, the court should retain the discrimination and contract claims, but remand the negligence claim.

B is incorrect. This choice is referring to the rule under 28 U.S.C. § 1367 that supplemental jurisdiction applies to cases that are removed to federal court as long as the claims arise from the same «case.» If the claim (s) have proper subject-matter jurisdiction, including through supplemental jurisdiction, they do not exceed the meaning of a «case» under Article III. However, because the state negligence claim does not fall within federal subject-matter jurisdiction here, it should be remanded back to state court.

D is incorrect. This is the correct conclusion, but incorrect legal reasoning. Although the court should not grant the remand as to the entire set of claims, it should retain the federal age discrimination and breach of contract claims. The discrimination claim is based on federal question and the contract claim, having arisen from the same facts, may be adjudicated under supplemental jurisdiction, as explained above.