MEMORANDUM*

Gail Shaw appeals from the district court's dismissal, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), of her suit against Continental Airlines, Inc. and the law firm of Taylor, Roth & Hunt. The district court dismissed the declaratory relief and spoliation of evidence claims because Continental had discharged its obligations under the consent decree and final distribution had occurred; and dismissed the negligence cause of action because retention of a pendent claim was inappropriate given dismissal of the other claims. We affirm.

* A consent decree was entered on March 14, 1983, resolving a class action against Continental by female flight attendants suspended or terminated for failure to meet weight requirements in violation of Title VII. The decree provided that the class was to receive a back pay settlement fund of $630,000 and that it was to be a final settlement of all claims, binding on all class members.

Under the decree a claim form was to be forwarded to all known members of the class, at their last known address, within thirty days. The decree further provided:

All class members who, within ninety days after the date of mailing, return the claim form may have a right to share in the back pay fund. Claims submitted after this time will not be considered and such claimants shall not share in any recovery and any such late-filed claims shall be forever barred.

The complaint alleges that Shaw timely returned her claim form on May 27, 1983 to Taylor, Roth & Hunt via United States mail, postage paid, but that she never received any funds or subsequent notice regarding the status of her claim.1 It seeks a declaratory judgment that Shaw is entitled to her share of the settlement fund or to be paid an equivalent sum if all funds have been disbursed. The complaint also seeks general and punitive damages from Continental for spoliation of evidence and damages from Taylor for negligence in losing, misplacing, or misfiling her claim. Jurisdiction was based on Title VII and the consent decree.

A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); Hartford Accident & Indemnity Co. v. Continental Nat'l Am. Ins. Cos., 861 F.2d 1184, 1185 (9th Cir.1988). Review is limited to the contents of the complaint. Love v. United States, 871 F.2d 1488, 1491 (9th Cir.1989). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Id. at 1491. A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quotations omitted).

The existence of subject matter jurisdiction similarly presents a question of law reviewed de novo. Kruso, 872 F.2d at 1421. The decision to exercise pendent or ancillary jurisdiction over state law claims is entrusted to the discretion of the district court. See Danner v. Himmelfarb, 858 F.2d 515, 523-25 (9th Cir.1988), cert. denied, 109 S.Ct. 2067 (1989); Blake v. Pallan, 554 F.2d 947, 958 (9th Cir.1977); see also Moor v. County of Alameda, 411 U.S. 693, 716, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973).

Even though the district court retained jurisdiction to enforce the consent decree, Shaw's complaint does not allege a violation of the decree.2 Rather it alleges only that her counsel negligently lost, misplaced, or misfiled her claim form. Only Continental was a party to the decree, and no actions on Continental's part that violate the decree are alleged.

Shaw invokes the "mail box rule," which provides that an offer is deemed accepted upon mailing an unequivocal acceptance to the offeror, see Cal.Evid. Code Sec. 641 (creating general presumption that mailed document has been received); NLRB v. General Teamsters Local No. 439, 837 F.2d 888, 891 (9th Cir.1988), to argue that mailing the form created contractual obligations on the part of Continental and Taylor beyond those explicitly stated in the decree. Even assuming that is so, Continental fulfilled its obligations by paying the agreed sum into the fund and Taylor's liability, if any, lies not in breach of the decree to which it was not a party, but in negligence on account of its duty to Shaw to review, represent and process her claim.

Nor does the complaint seek, or set forth facts that would justify, modification of the decree. See generally United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 76 L.Ed. 999 (1932) ("Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned."); see also Keith v. Volpe, 784 F.2d 1457 (9th Cir.1986).3 Because new claims by class members were barred when the complaint was filed, the district court correctly concluded that plaintiff could not be entitled to any sum due under the decree by Continental or Taylor.

Since the cause of action for declaratory judgment was properly dismissed, the district court did not err in declining to exercise jurisdiction over Shaw's remaining claim against Taylor. Whether characterized as an action for negligence or for legal malpractice, it arises entirely under state law. See Safeco Ins. Co. of Am. v. Guyton, 692 F.2d 551, 555 (9th Cir.1982) (negligence is non-federal cause of action); Aragon v. Federated Dept. Stores, Inc., 750 F.2d 1447 (9th Cir.) (legal malpractice is non-federal cause of action), cert. denied, 474 U.S. 902 (1985). Taylor is non-diverse. See Munoz v. Small Business Admin., 644 F.2d 1361, 1365 (9th Cir.1981). Accordingly, the district court did not abuse its discretion in declining to exercise pendent jurisdiction. See generally United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Danner v. Himmelfarb, 858 F.2d 515 (9th Cir.1988), cert. denied, 109 S.Ct. 2067 (1989).

The district court dismissed Shaw's claim for spoliation of evidence "as it obviously occurred long after the cutoff date for filing claims, and after the final distribution of all the funds." As there is nothing in the complaint to indicate when the alleged destruction of personnel records occurred, we affirm the dismissal on other grounds. See City of Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985). Shaw's complaint alleges that her personnel records were destroyed to prevent her from sharing in the settlement fund by eliminating documentation necessary to prove Shaw was a member of the Gerdom plaintiff class. Because Shaw's underlying claim to share in the settlement fund must be dismissed as time-barred under the consent decree, there can be no reasonable probability that Shaw would have obtained a tangible benefit but for the defendants' alleged conduct. Cf. Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 835-37 (1984).

AFFIRMED.

JUDGE REINHARDT concurs in the result.