Appeal fro the United States District Court for the Southern District of California in No. 09-CV-0986, Judge John A. Houston.
VACATES AND REMANDS TO THE DISTRICT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO CALIFORNIA STATE COURT.
MATTHEW KLIPSTEIN, of Denver, Colorado, argued for plaintiff-appellant.
GREGOR A. HENSRUDE, Klinedinst PC, of San Diego, California, argued for defendants-appellees. With him on the brief were HEATHER L. ROSING and SAMUEL B. STROHBEHN.
Before WALLACH, CHEN, and HUGHES, Circuit Judges.
Wallach, Circuit Judge.
The question before this court is whether a California state court malpractice case involving patent law representation was properly removed to a federal court. Under the principles of Gunn v. Minton, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013), it was not.
Plaintiff-appellant NeuroRepair, Inc. (" NeuroRepair" ) appeals from a final judgment of the United States District Court for the Southern District of California granting partial summary judgment in favor of defendants-appellees The Nath Law Group and Robert P. Cogan (collectively, " Defendants" ) on July 12, 2011, as well as the district court's orders (1) denying NeuroRepair's motion for reconsideration on August 19, 2011, (2) granting Defendants' motion in limine with respect to lost licensing opportunity of March 12, 2012, (3) entering judgment on September 26, 2012, in favor of Defendants, and (4) denying NeuroRepair's motion for reconsideration on July 1, 2013, and all related post-judgment costs. Based on Gunn v. Minton, this court vacates and remands the district court's judgments with instructions to remand the case to California state court.
This court " [has] jurisdiction to decide whether the district court had jurisdiction under [28 U.S.C.] § 1338." C.R. Bard, Inc. v. Schwartz, 716 F.2d 874, 878 (Fed. Cir. 1983); see also Scherbatskoy v. Halliburton Co., 125 F.3d 288, 291 (5th Cir. 1997) (finding the " right to determine if a district court has jurisdiction under [§ ] 1338" is a power that " concurrently exists with [the Federal Circuit and] the regional circuits" ); Shaw v. Gwatney, 795 F.2d 1351, 1353 n.2 (8th Cir. 1986) (A federal appellate court carries out " traditional and inherent functions [such] as determining its own jurisdiction and supervising the exercise of jurisdiction by the district courts below it." ); cf. Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985) (" If the MSPB does not have jurisdiction, then neither do we, except to the extent that we always have the inherent power to determine our own jurisdiction and that of the board." ).
In December 2005, NeuroRepair retained Robert Cogan, an attorney with The Nath Law Group, to assist in the prosecution of certain patent applications. Over time, NeuroRepair became increasingly dissatisfied with what it viewed as slow progress and excessive legal fees, and in August 2007 NeuroRepair requested that Mr. Cogan transfer the relevant files to another law firm, Welsh & Katz, to continue prosecution before the United States Patent and Trademark Office (" USPTO" ). In September 2007, Defendants filed a request to withdraw from representation of NeuroRepair before the USPTO, but continued to assist NeuroRepair with other matters.
NeuroRepair filed suit against Defendants in the San Diego Superior Court on March 20, 2009, alleging professional negligence, breach of fiduciary duty, breach of written contract, breach of oral contract, breach of implied covenant of good faith and fair dealing, negligent misrepresentation, and false promise. Defendants removed the case to federal district court on May 7, 2009, on the ground that it was " a civil action relating to patents." J.A. 55.
After the district court entered judgment in Defendants' favor on September
26, 2012, NeuroRepair timely filed this appeal challenging the district court's subject matter jurisdiction. The principal issue this court must address is whether jurisdiction in the district court was proper in light of the Supreme Court's recent pronouncement in Gunn v. Minton.
I. Standard of review