Estate of Bishop v. Bechtel Power Corp.

905 F.2d 1272
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 8, 1990
DocketNo. 89-55018
StatusPublished
Cited by51 cases

This text of 905 F.2d 1272 (Estate of Bishop v. Bechtel Power Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272 (9th Cir. 1990).

Opinion

CYNTHIA HOLCOMB HALL, Circuit Judge:

The plaintiffs in a employee disability insurance dispute timely appealed the district court’s orders denying remand to state court and imposing sanctions against their attorney. We dismiss for lack of appellate jurisdiction.

I

On May 5, 1987, George and Pearl Bishop filed an action in California state court against Mr. Bishop’s former employer, ap-pellee Bechtel Power Corporation (“Bechtel”) and Bechtel’s carrier of long term employee disability insurance, appellee Connecticut General Life Insurance Company (“CIGNA”). The lawsuit (“Bishop /”) staked out nine claims for relief under state law.1 One month later, the defendants removed the case to federal district court.

The following week, both Bechtel and CIGNA moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) on the ground that all nine of the Bishops’ claims were preempted by the Employee Retirement Income Security Act of 1984, 29 U.S.C. §§ 1131 et seq. [hereinafter ERISA], Bechtel also moved for the imposition of sanctions against the Bishops’ counsel, Lee Landrum. The Bishops responded by filing a motion to remand, contending that ERISA did not preempt their sixth cause of action — the alleged violation of Cabins. Code § 790.03(h) — and that remand to state court was therefore appropriate.

By order of October 22, 1987, Judge Thompson ruled that ERISA preempted all nine causes of action and dismissed them without prejudice. He denied the motion to remand to state court and gave the plaintiffs — now Mrs. Bishop and the Estate of Mr. Bishop2 — thirty days to amend their complaint in federal court. Finally, Judge Thompson declined to impose sanctions against Landrum.

That very day, Landrum filed an amended complaint stating that Bishop I now arose under ERISA. However the complaint also realleged a violation of Cabins. Code § 790.03(h) — despite Judge Thompson’s ruling that that provision was preempted. Bechtel and CIGNA moved to have that claim (and a prayer for punitive damages) dismissed on preemption [1274]*1274grounds. Bechtel also renewed its request for sanctions.

At a hearing on February 22, 1988, Judge Thompson granted the defendants’ motions to dismiss both the § 790.03(h) claim and the prayer for punitive damages. Judge Thompson denied Bechtel’s request for sanctions but warned Landrum that “in the future he should be careful about what he files.”

On May 27, the plaintiffs filed a second complaint in California state court (“Bishop II”), alleging three causes of action against Bechtel, CIGNA, and Does 1-100: (1) violation of Cal.Ins.Code § 790.03(h); (2) wrongful death;3 and (3) wrongful termination. Bechtel removed the action to federal district court.

Bishop II was also assigned to Judge Thompson. Bechtel and CIGNA moved to dismiss claims one and three as preempted by ERISA. Pointing to the two rulings in Bechtel I that the § 790.03(h) claim was preempted by ERISA and the single prior ruling that the wrongful termination claim was likewise preempted, Bechtel urged Judge Thompson to impose sanctions against Landrum.

Landrum responded with a Petition to Delete Federal Law Complaint and Remand. He sought to drop the § 790.03(h) claim and remand the remaining two causes of action to state court. Later, Landrum filed a memorandum in opposition to the defendants’ motions for Rule 12(b)(6) dismissal and renewed his argument from Bishop I that § 790.03(h) was not preempted by ERISA after all.

Judge Thompson decided the competing motions on September 26, 1988. First, he dismissed the first and third causes of action in Bishop II on preemption grounds. Second, he denied the motion to remand to state court. Third, he consolidated the remaining wrongful death claim in Bishop 11 with the ERISA claims in Bechtel I. Finally, he sanctioned Landrum for costs Bechtel and CIGNA incurred relitigating the preempted causes of action.4

II

The plaintiffs first appeal the district court’s order denying remand to the state court. However, because such orders are not final, and because the plaintiffs did not pursue the proper channels for immediate appeal, we lack jurisdiction to review the order.

A

It is clear in this circuit that the denial of a motion to remand is not a final order appealable under 28 U.S.C. § 1291. See Wynn v. Reconstruction Fin. Corp., 212 F.2d 953, 957 (9th Cir.1954). Other circuits agree. See, e.g., Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 861-62 (7th Cir.) (“An order denying a motion to remand a case to state court cannot, by any stretch of the imagination be considered ‘final’ within the meaning of § 1291”.) (citing cases from circuits 1-5), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984).

It is equally clear that the “collateral order” exception to § 1291’s finality requirement does not apply to orders denying remand. Under the collateral order doctrine, § 1291 review is appropriate for orders “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). For the doctrine to apply, the challenged order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the underlying action; and (3) be effectively unreviewable from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); accord Riverhead Sav. v. National Mortg. Equity Corp., 893 F.2d 1109, [1275]*12751114 (9th Cir.1990). Failure to meet any of these three elements renders the doctrine inapplicable. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376, 101 S.Ct. 669, 674-75, 66 L.Ed.2d 571 (1981) (failure to meet third element fatal to Cohen claim).

We need not undertake the complicated inquiry regarding the existence of the first two components of the collateral order exception because the third element — unreviewability at final judgment— is clearly absent.

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905 F.2d 1272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-bishop-v-bechtel-power-corp-ca9-1990.