NOTES
DEFINING THE PARAMETERS OF SUPPLEMENTAL
JURISDICTION AFTER 28 U.S.C. § 1367
TABLE OF CONTENTS
T.
Ii.
[rntroductionn «0.........s.scscsessessesscscsesusenssesecseessascnseaseneesssecsnsoesesstuesesssanseses 391
History of Supplemental Jurisdiction—Pendent and
Ancillary Jurisdiction ....,.....ccsssssssensersesecsseessassseneesessessseessceaseeessserers
A.
Pendent Jurisdiction ..............s0000
1.
2.
IT.
IV.
Development of Supplemental Jurisdiction ............ccscssseeseeeeeseseeetes
A. Restoration of Supplemental Jurisdiction
B. Codification of Kroger and Controversy Over
D.
Diversity Jurisdiction ............scscscsccssesessssssssesssessssatecsssssassanessserense 404
Discretionary Rejection of Jurisdiction Under Subsection (c)....... 405
Tolling of the Statute of Limitations Under Subsection (d)........... 407
Application of Supplemental Jurisdiction in Recent Decisions ........... 407
A. Supplemental Jurisdiction Exercised Under Subsection (a) .......... 407
B. Diversity Jurisdiction .............ssscsssscsesssssssesesssserssseseerseensasnseesevees 411
C.
VI.
VIL
ire
B. Ancillary Jurisdiction ............ccscscsscescsseseessecesesesseccrneeseensesserasers
Attack on Supplemental Jurisdiction: F inley v, United States verses 400
C.
V.
Pendent Claim Jerisdiction ....
Pendent Party Jurisdiction ......
Discretionary Denial of Supplemental Jurisdiction ..................... 412
1. Dismissal of Original Claims ...........:ccsssessesseseesecesssoeeeseeees 412
2.
Predominance of Claims. ............sscsscsscscscsseseseseeteesneascesseceaes 413
3.
Other Compelling Reasons for Declining Jurisdiction............ 414
Response to Supplemental Jurisdiction ............csssesssesssserssssseeenaesees 415
ComclSion «0... see sesessscsnseeseceneessensennersosenscsensessesssoesesonseessnsrsesenereseeees 417
I. INTRODUCTION
The
doctrines of “pendent”!
and “ancillary”? jurisdiction—generally
regarded as necessary, economical supplements to the federal courts’ limited
jurisdiction—have been plagued with confusion and inconsistencies throughout
1. Pendent claim jurisdiction involves a situation in which a plaintiff, in the complaint,
seeks to add to a jurisdictionaliy sufficient claim to one or more claims that lack independent federal jurisdiction bases. JOHN J. COUND
ET AL, CIVIL PROCEDURE 274 (5th ed. 1989). Pendent party
jurisdiction involves a plaintiff whe possesses a federal claim against one defendant attempting to
assert a related, nonfederal claim against an additional, nondiverse defendant.
fd. at 280;
138
CHARLES A. WRIGHT BT AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED
MATTERS § 3567.2, at 148-51 (2d ed. 1984).
2. Ancillary jurisdiction involves a situation where the plaintiff or defendant adds a claim
which lacks a jurisdictionally independent basis by way ofa counterclaim, cross claim, or thirdparty complaint. COUND ET AL., supra note 1, at 274.
391
392
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their development.
[Vol. 43
Recently, Congress responded to the Supreme Court’s invi-
tation to legislatively define the federal courts’ jurisdictional authority.4 Pursuant
to the Judicial Improvements Act of 1990,5 the President signed into law
Congress’s sweeping grant of supplemental jurisdiction to district courts.6 The
statute, 28 U.S.C. section 1367,’
codified and revised the doctrines of pendent
and ancillary jurisdiction and brought both doctrines under the new label of supplemental jurisdiction.®
In light of the significant effects of supplemental jurisdiction on federal
subject matter jurisdiction, this Note provides an overview of the statute’s history
and development.’
This Note also focuses on recent decisions that have applied
supplemental jurisdiction.!° Finally, this Note concludes with reactions to the
statute and recommendations regarding interpretation of it in the future.!!
Il. HISTORY OF SUPPLEMENTAL JURISDICTION—PENDENT AND
ANCILLARY JURISDICTION
The United States Constitution imposes limitations on federal subject matter jurisdiction.!2 “The judicial Power shall extend to all Cases . . . arising under
this Constitution, the Laws of the United States ... to all Cases ... between a
State and Citizens of another State;—between Citizens of different States.”'°
Additionally, Congress has the power to limit federal jurisdiction and establish
lower courts.'*
In response to these limitations and to the emerging complexity of lawsuits,
federal courts developed and employed the doctrines of pendent and ancillary
3. See infra text accompanying notes 41-61, 105-108.
4. Justice Scalia, writing for the majority in Finley v. United States, a case that seriously
undermined the doctrines of pendent and ancillary jurisdiction, stated, “Whatever we say regarding
the scope of jurisdiction . . . can of course be changed by Congress.” Finley v. United States, 490
U.S. 545, 556 (1989); see also Thomas M. Mengler et al., Congress Accepts Supreme Court’s
{nvitation to Codify Supplemental Jurisdiction, 74 JUDICATURE 213, 213 n.2 (1991).
5. Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089 (1990).
6. Commentators have varied significantly in their review of § 1367, but most are in
agreement regarding the statute’s welcome eradication of the Finley holding’s severe limits on
supplemental jurisdiction. See Mengler et al., supra note 4, at 213; CHARLES T. MCCORMICK ET
AL., FEDERAL Courts 136 (9th ed. 1992);
12 (4th ed.
1992).
7.
8.
9,
10,
11.
12.
13.
1992);
FLEMING JAMES ET AL., CIVIL PROCEDURE § 2.28, at 109-
ERwin CHEMERINSKY, FEDERAL JURISDICTION § 5.4, at 51-54 (Ist ed. Supp.
28 U.S.C. § 1367 (Supp. IV 1992).
See CHEMERINSKY, supra note 6, § 5.4, at 52.
See infra parts II - IV.
See infra part ¥.
See infra parts VI - VII.
U.S. Const. art. HI, § 2.
id.
/
14. id. art. I, § 8, cl. 9 (“The Congress shall have Power To... constitute Tribunals inferior to the supreme Court”); /d. art. Ili, § 1 (“The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.”).
1994]
Supplemental Jurisdiction
393
jurisdiction.'5 These doctrines allowed federal courts to achieve jurisdiction over
nonfederal claims sufficiently related to the federal claims asserted.'6 Although
the two doctrines developed separately from their common origin in Osborn vy.
President, Bank of the United States," their goals and purposes were the same:
judicial efficiency, avoidance of piecemeal litigation, convenience, and fairness.!®
From the broad proposition announced by Chief Justice Marshall in Osborn that
federal courts have the power to maintain jurisdiction over the entire “case,”!? the
doctrines developed separately into two distinct lines of case law—pendent
jurisdiction and ancillary jurisdiction.” A third line of case law is pendent-party
jurisdiction.?!
A. Pendent Jurisdiction
1.
Pendent Claim Jurisdiction
Pendent claim jurisdiction involves a situation in which a plaintiff seeks to
add to the jurisdictionally sufficient claim one or more claims that lack independent jurisdiction.22 Pendent claim jurisdiction allows the plaintiff to bring both
claims in joes court, if the jurisdictionally insufficient claim meets certain
standards.
15. 13 WRIGHT
ET AL., supra note 1, § 3523, at 86 (citing Morrow v. District of Columbia,
417 F.2d 728, 738 (D.C. Cir. 1969) (“The important policy of having one single expeditious resolution of a dispute has thus led to the doctrine of ancillary jurisdiction and analogous practices of
courts.”).
16. United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966).
17. Osborn v. President, Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
We think, then, thet when a question to which the judicial power... is
extended by the constitution, forms an ingredient of the original cause, it is in
the power of congress to give the circuit courts jurisdiction of that cause,
although other questions of fact or of law may be involved in it.
id, at 823.
18.
See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (explaining pendent
jurisdiction is justified by “judicial economy, convenience and fairness to litigants”); 13 WRIGHT ET
AL., supra note 1, § 3523, at 85-87 (stating ancillary jurisdiction “is a commonsense solution to the
problems of piecemeal litigation that otherwise would arise by virtue of the limited jurisdiction of
the federal courts . . . and the complexity of many modern lawsuits, . . . [iJn some instances [it] is
virtually a matter of necessity”),
19. Osbom v. President, Bank of the United States, 22 U.S, (9 Wheat.) at 822.
20. Arthur R. Miller, Ancillary and Pendent Jurisdiction, 26 S. Tex. L.J. 1, 1-2 (1985).
“The contemporary remnants of [the whole case approach] divide into two basic themes, pendent
jurisdiction and ancillary jurisdiction.” /d. at 1.
21. See infra text accompanying notes 39-67.
22.
COUND ET AL., supra note |, at 274; see also 13B WRIGHT
EY AL., supra note 1, § 3567,
at 109-10,
23. David D. Siegel, Changes in Federal Jurisdiction and Practice Under the New (Dec.
I, 1990) Judicial Improvements Act, 133 F.R.D. 61, 63 (1991) [hereinafter Siegel, Changes in
Federal Jurisdiction]; David D. Siegel, 28 U.S.C.A. Practice Commentary § 1367, 829-31 (West
1993) [hereinafter Siegel, Practice Commentary).
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[Vol. 43
In United Mine Workers v. Gibbs,24 the modern case most closely associ-
ated with the formulation of pendent claim doctrine,45 the Court announced a test
for the sufficiency of pendent jurisdiction.2 The Court first set forth the general
requirement that the claims the plaintiff wishes to combine must be sufficiently
related in order to form one constitutional case.*”? Then the Court narrowed this
general rule with specific requirements. First, the plaintiff's federal claim must
be sufficiently substantive; this insures the court has jurisdiction over the federal
claim to which the plaintiff seeks to append nonfederal claims.?® Second, “[t]he
state and federal claims must derive from a common nucleus of operative fact.”
The third requirement, like the second, seeks a sufficient connection between the
federal and nonfederal claims.*°
This requirement, however, focuses more
closely on the efficiency and economy of allowing the federal court to hear the
whole case, if it “would ordinarily be expected to try [all the claims] in one judicial proceeding.”3!
Most subsequent courts, however, interpreted the last two
criteria to require only.a loose factual connection between the federal and nonfederal claims.*2 Moreover, almost all courts and commentators treat the second
and third criteria of the Gibbs test as cumulative: thus, the satisfaction of one
normally satisfies the other.*3
Although the Gibbs Court generally affirmed the notion of pendent claim
jurisdiction, it articulated the “power need not be exercised in every case in
which it is found to exist.”34
The Court elaborated, stating that the doctrine of
pendent jurisdiction is discretionary—the plaintiff possesses no right to it and
24, United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
25. See e.g. Finley v. United States, 490 U.S. 545, 548-49 (1989) (stating that Gibbs stands
for the principle of pendent jurisdiction); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 348-49
(1988) (“The modern doctrine of perident jurisdiction stems from . . . Gibbs.”); see also Miller,
supra note 20, at 1,3; Siegel, Changes in Federal Jurisdiction, supra note 23, at 63; 13B WRIGHT
ET AL., supra note 1, § 3567.1, at 114.
26.
27.
28.
29.
United Mine Workers v. Gibbs, 383 U.S. at 725.
Id.
Id.
Id. This language is viewed by many commentators as much broader than the cause of
action test in Hurn v. Oursier.
Miller, supra note 20, at 4; see Hurn v. Oursler, 289 U.S. 238
(1933).
30.
31.
32.
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Id.
See 13B WRIGHT ET AL, supra note 1, § 3567.1, at 117; Doe v. Bobbitt, 682 F. Supp.
388, 389 (N.D. Il. 1988); Wicker v. First Fin. of Louisiana Sav. & Loan Ass'n, 665 F. Supp. 1210,
1213 (M.D. La. 1987); Ritter v. Colorado Interstate Gas Co., 593 F. Supp. 1279, 1281 (D. Colo.
1984); Frye v. Pioneer Logging Machinery, Inc., 555 F, Supp. 730, 732 (D.S.C. 1983); Mid-State
Food Dealers Ass'n v. City of Durand, 525 F. Supp. 387, 392 (E.D. Mich. 1981). But see Mason v.
Richmond Motor Co., 625 F. Supp. 883, 886 (E.D. Va. 1986), aff'd, 825 F.2d 407 (4th Cir. 1987).
“I think the respective judges have misread Gibbs. In so doing they have expanded federal jurisdiction beyond the Gibbs limit. . . . I also think this progression from ‘common nucleus’ to ‘totally
different’ is a paradigm of judicial lawmaking.” id. at 886. “My understanding of United Mine
Workers v. Gibbs, then, precludes any interpretation that permits a federal court to exercise its pendent jurisdiction based upon a “loose factual connection’ between the federal and State claims.” Id.
at 887.
33. 13B WRIGHTET AL., supra note 1, § 3567.1, at 116.
34. United Mine Workers v. Gibbs, 383 U.S. at 726.
1994]
Supplemental Jurisdiction
395
“needless decisions of state law should be avoided.”35 The Court stated that if the
goals of pendent jurisdiction—efficiency, convenience, and fairness are not in
issue, the court should not maintain jurisdiction over the pendent claims.3© This
discretionary limitation has been largely ignored, however, due to the broadening
effect of Gibbs on the doctrine of pendent jurisdiction.3” If the power to hear a
pendent claim exists, the district court will almost always exercise it.38
2.
Pendent Party Jurisdiction
Pendent party jurisdiction exists when a plaintiff who possesses a federal
claim against one defendant attempts to assert a related nonfederal clairn against
an additional, nondiverse defendant.3? The language of Gibbs unexpectedly
expanded
pendent jurisdiction to include pendent parties.“ The Court explained
“joinder of claims, parties and remedies is strongly encouraged.’*! The Court
pointed to the Federal Rules of Civil Procedure as manifesting “‘an impulse...
toward entertaining the broadest possible scope of action.”#
In Aldinger v. Howard,* however, the Supreme Court explicitly rejected
pendent party jurisdiction.“ In Aldinger, the plaintiff sought an injunction
against her employer, the county, to restrain it from discharging her for cohabitating with her boyfriend.45 She wanted this state tort claim against the county
appended to her federal civil rights claim against several of the county officials.
Although the claims arose out of a “common nucleus of operative fact,”47 diver-
sity did not exist between the plaintiff and the county
and, therefore, no
independent basis of federal jurisdiction was established.*
The Court rejected
the plaintiff's pendent party jurisdiction arguments.” Additionally, the Court
took the opportunity to distinguish between pendent claim and pendent party
jurisdiction. The Court stated that an additional, sufficiently related state claim
35.
36.
37.
id.
Id.
13B WRIGHT
ET AL., supra note 1, § 3567.1, at 144; see infra text accompanying notes
38.
39.
13B WRIGHTET AL., supra note 1, § 3567.1,at 144.
COUND ET AL., supra note 1, at 280: 13B WRIGHT ET AL., supra note 1, § 3567.2, at
40. 13B WRIGHTET AL., supra note 1, § 3567.2, at 145-46; see Mobil Oil Corp. v, Kelley,
493 F.2d 784, 788-89 (Sth Cir.), cert. denied, 419 U.S. 1022 (1974); Schulman v. Huck Finn, Inc.,
472 F.2d 864, 866 (8th Cir. 1973); Astor-Honor, Inc, v. Grosset & Dunlap, Inc., 441 F.2d 627, 630
(2d Cir. 1971).
41. United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).
42. Id.
43. Aldinger v. Howard, 427 U.S. 1 (1976).
44. Id. at 14-18.
.
.
45. Id. at 3-4.
46. id. at 3-5. Counties, as municipal corporations, were not subject to 42 U.S.C. 8 1983
under the construction given it at the time the plaintiff filed her claim. fd. at 16.
4-5.
47. The plaintiff's federal and state claims were based on the same tortious conduct. Id. at
48.
49.
Id. at 16-19,
Id.
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[Vol. 43
asserted concurrently with a federal claim®® was “perfectly consistent with Art.
Iif.”5!_ The Court also stated that “the situation with respect to the joining of a
new party, however, strikes us as being both factuatly and legally different from
the situation .. . in Gibbs.”5?
The Court explained:
From a purely factual point of view, it is one thing to authorize two parties,
already present in federal court by virtue of a case over which the court has
jurisdiction, to litigate in addition to their federal claim a state-law claim
over which there is no independent basis of federal jurisdiction. But it is
quite another thing to permit a plaintiff, who has asserted a claim against
one defendant with respect to which there is federal jurisdiction, to join an
entirely different defendant on the basis of a state-law claim over which
there is no independent basis of federal jurisdiction, simply because his
claim against the first defendant and his claim against the second defendant
“derive from a common nucleus of operative fact.” . . . True, the same considerations of judicial economy would be served . . . [bJut the addition of a
completely new party would run counter to the well-established principle
that federal courts . , . are courts of limited jurisdiction marked out by
Congress.
The Court emphasized the significant legal difference between pendent party and
pendent claim jurisdiction.** The extension of the Gibbs rationale to a pendent
party situation resulted in troublesome statutory jurisdictional questions.
The question here, which ... was
whether by virtue of the statutory
which petitioner’s principal claim
the party as to whom jurisdiction
And it undoubtedly has done so.*6
not necessary to address in Gibbs ... , is
grant of subject-matter jurisdiction, upon
. . . rests, Congress has addressed itself to
pendent to the principal claim is sought.
Because Congress specifically gave the district courts the power to decide civil
rights actions and excluded counties from the contours of section 1983,°7 the
Court concluded Congress did not intend the state law claims against counties to
be tried in federal courts.58 “In short, as against a plaintiff's claim of additional
50. The Court referred to United Mine Workers v. Gibbs in which the validity of pendent
claim jurisdiction was established. /d. at 14.
51. Id.
52. Id.
53. Id. at 14-15 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).
54. Id. at 15.
55. Id.
56. Id. at 16.
57. “Every person who, under color of any statute, ordinance, [or] regulation . . . of any
State . .. subjects, or causes to be subjected, any citizen of the United States . . . the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
42 U.S.C. § 1983 (1988).
party injured...
58.
Aldinger v. Howard, 427 U.S. 1, 17 (1976).
1994]
Supplemental Jurisdiction
397
power over a ‘pendent party,” the reach of the statute conferring jurisdiction
should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress,”
The Court in Aldinger limited its decision significantly:
[W]e decide here only the issue of so-called ‘pendent party’ jurisdiction
with respect to a claim brought under §§ 1343(3) and 1983. Other statutory
grants and other alignments of parties and claims might call for a different
result. When the grant of jurisdiction to a federal court is exclusive .. . the
argument of judicial economy and convenience can be coupled with the
additional argument that only in a federal court may all of the claims be
tried together,60
Thus, the Court declined to “lay down [a] sweeping pronouncement upon the
existence or exercise of [pendent party] jurisdiction.”*!
Two years after Aldinger, the Court decided Owen Equipment & Erection
Co. v. Kroger. This case primarily involved the assertion of ancillary jurisdiction in a claim based on diversity jurisdiction. The Court rejectedpendent party
jurisdiction in this situation, stating that allowing jurisdiction in such cases would
undermine Congress’s requirement of complete diversity under section 1332.5
The Court finally settled the uncertainties surrounding pendent party jurisdiction in Finley v, United States, in which it rejected a compellin argument
for the application of the auxiliary jurisdiction.* This decision, although only
purporting to apply to the pendent party situation, placed all forms of supplemental jurisdiction on uncertain ground.*
59. Id.
60. Id. at 18.
61. fd.
62, Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978).
63. Jd, at 367-69. The wife of the decedent, a citizen of Iowa, asserted a claim against the
defendant, The Omaha Public Power District (OPPD), a Nebraska corporation. Id. at 367. OPPD
impleaded Owen Equipment, alleging Owen's negligence was the proximate cause of the decedent’s death. id. at 368, While OPPD's motion for summary judgment was pending, the plaintiff
amended her complaint, adding Owen as an additional defendant. Jd. Shortly thereafter, summary
judgment was granted in favor of OPPD, leaving only Owen as a defendant, Jd, After the trial
began, however, it was discovered Owen's principal place of business was Iowa, thus diversity
jurisdiction was destroyed. /d. at 369. For a discussion of this case in the ancillary jurisdiction
context, see infra text accompanying notes 73-87.
64. Id. at 373-75. The Court relied on precedent dating back to Strawbridge v. Curtiss, but
noted that complete diversity does not find its roots in the Constitution. Jd. at 373. See
Strawbridge v. Curtiss, 7 U.S, (3 Cranch) 267 (1806). In Gwen, the Court found it significant that
prior Congressional revisions of §1332 had left the complete diversity requirement intact, Owen
Equip. & Erection Co. v, Kroger, 437 U.S. at 373.
65. Finley v. United States, 490 U.S. 545 (1989).
66. See infra text accompanying notes 94-102.
67.
Mengler et al,, supra note 4, at 214.
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398
[Vol. 43
B. Ancillary Jurisdiction
As previously stated, ancillary jurisdiction involves a situation where the
plaintiff or defendant adds a claim which lacks a jurisdictionally independent
basis by. way of a counterclaim, cross claim, or third-party complaint. Ancillary
jurisdiction, as opposed to pendent jurisdiction, occurs after the plaintiff files the
complaint, most commonly in the diversity context. ©
The development of the modem doctrine of ancillary jurisdiction occurred,
for the most part, after enactment of the Federal Rules of Civil Procedure.” The
broad joinder provisions of the Federal Rules provided more opportunities for
parties to invoke ancillary jurisdiction.’!
The main focus and primary purposes of ancillary jurisdiction are effi-
ciency and economy.”? Requiring parties to divide their proceedings between the
state and federal courts would be inefficient and undesirable if the claims arose
from a single transaction.”? In spite of the broad joinder provisions, application
of ancillary jurisdiction required, at the very least, a logical relationship between
the primary and ancillary claims.”
The two modern cases that brought together ancillary and pendent jurisdiction were Aldinger v. Howard’> and Qwen Equipment & Erection Co. v.
Kroger.’© In Aldinger, the Court did not specifically address the ancillary jurisdiction issues because the lower federal courts had based their decisions on
Gibbs’s pendent claim language, neglecting to analyze the situation under ancillary jurisdiction.”? The Court did, however, state:
If the new party sought to be joined is not otherwise subject to federal juris-
diction . . . [blefore it can be concluded that such jurisdiction exists, a
federal court must satisfy itself not only that Art. II] permits it, but that
Congress in the statutes conferring jurisdiction has not expressly or by
implication negated its existence.”8
68. COUND ETAL,, supra note 1, at 274; see aiso Siegel, Practice Commentary, supra note
23, at 830-31.
69. Siegel, Changes in Federal Jurisdiction, supra note 23, at 63; Siegel, Practice
Commentary, supra note 23, at 831.
70. Miller, supra note 20, at 5. “Ancillary jurisdiction as we know it today is primarily a
by-product of the joinder provisions of the Federal Rules of Civil Procedure.” id,
71, 13 WRIGHT ET AL., supra note 1, § 3523, at 94. The “transaction or occurrence stanexample, found in the compulsory counterctaim and crossclaim rule provided a basis for
for
dard,”
:
the assertion of ancillary jurisdiction. Id. at 95.
:
;
72, Miller, supra note 20, at 5.
73.
13 WRIGHTETAL., supra note 1, § 3523, at 95; see Miller, supra note 20, at 5.
74, 13 WRIGHT ET AL., supra note 1, § 3523, at 96; see Federal Land Bank v. Stiles, 700 F.
Supp. 1060, 1064 (D. Mont. 1988).
75, Aldinger v. Howard, 427 U.S. 1 (1976). For a discussion of this case in the pendent
party context see supra text accompanying notes 38-54.
76. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978). Fora discussion of this
case in the pendent party context see supra text accompanying notes 62-64.
71. Aldinger v, Howard, 427 U.S. at 13.
78. id. at 18.
1994]
Supplemental Jurisdiction
399
Thus, under Aldinger, when a party sought to assert ancillary jurisdiction, more
was required than satisfaction of the Gibbs test. A showing of satisfaction of the
statutory jurisdictional issues was required as well.7?
Although Aldinger was, most notably, a pendent jurisdiction case, the
Court in Kroger relied on its language to define the limits of ancillary jurisdiction. In Kroger, the Court introduced a two-step analysis to determine when a
federal court could maintain jurisdiction over a state law claim involving citizens
of the same state.®! First, the court must determine whether it has the constitutional power to maintain jurisdiction over the pendent or ancillary claims,®? This
analysis originated under Gibbs—a sufficient relationship must exist between the
state and federal claims to constitute one constitutional “case.”®? The Court then
explained the second requirement, stating the court must look to the congres-
sional intent behind the statute granting jurisdiction over the federal claim.
Additionally, under the second requirement the court must examine the nonfederal claim—the posture in which it is asserted, the type of claim, and the position
of the asserting party.*5 After examination of the relevant statute conferring
diversity jurisdiction, section 1332(a)(1), the Court found it had consistently
required diversity and would continue to do 0.86
~
The Court’s combination of the Gibbs constitutional test and the Aldinger
statutory test resulted in a two prong test for determining ancillary jurisdictional
questions.®”7 The Kroger Court held the plaintiff had not satisfied the second
prong of the test.2® The Court would not allow the plaintiff to do indirectly—
assert a counterclaim by way of an amended complaint—that which she would
not be allowed to de directly—assert under section 1332 a state claim in federal
court against a nondiverse defendant.®? Commentators have referred to this as the
Court’s protection against the “sneaky plaintiff.” “[A] plaintiff could defeat the
statutory requirement of complete diversity by the simple expedient of suing only
those defendants who were of diverse citizenship and waiting for them to implead
79.
98-99,
Aldinger v. Howard, 427 U.S, at 18-19; see 13 WRIGHT ET AL., supra note 1, § 3523, at
80. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 375-76.
81, fd. at 371-72; see 13 WRIGHT
ET AL, supra note 1, § 3523, at 100.
82. Id. at 371-72.
83. Id. at 371 (citing United Mine Workers v. Gibbs, 383.U.S. 715, 725 (1966).
84. Id. at 373 (citing Aldinger v. Howard, 427 U.S. 1, 18 (1976)).
85. Id; see 13 WRIGHT
ET AL., supra note 1, § 3523, at 100, The Court in Kroger found
Mrs. Kroger’s posture offensive to diversity jurisdiction because she had initially foregone the
opportunity to bring all of her claims in state court and had chosen the federal forum for assertion
of her claims. Id. at 101-02. She was therefore bound by the federal limitations. Id. Moreover,
she, as the plaintiff who chose the federal forum, asserted the nonfederal claim and was not a “party
haled into court against [her] will,” in which case she would be entitled to assert a claim lacking an
independent jurisdictional basis. /a.
86. fd.
87. Id. at 371-73.
88. fd. at 374,
89. id. at 374-75.
90. Wendy C. Perdue, The New Supplemental Jurisdiction Statute—Flawed But Fixabie,
41 Emory L.J. 69, 72 (1991). Although the plaintiff had no sneaky motives in Kroger, the Court
chose an objective standard of evaluation of ancillary claims, Id.
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400
[Vol. 43
nondiverse defendants.”®' Even though the plaintiff, Mrs. Kroger, was not a
“sneaky plaintiff” because ali of the parties thought she was diverse from the
defendant until after the trial had begun, the Court chose an objective standard
rather than a fact-specific inquiry.°? This standard avoided burdening trial judges
with time-consuming examination of each case to determine the motives of the
plaintiff.
Il, ATTACK ON SUPPLEMENTAL JURISDICTION:
FINLEY V. UNITED STATES
In Finley v. United States, the plaintiffs husband and two children were
killed when the airplane in which they were traveling struck electric transmission
wires during approach to a San Diego airport. Ms. Finley brought a tort action
against the utility company in state court. * Because she later discovered, however, the Federal Aviation Administration (FAA) might have been partially
responsible, she filed an action against the United States in district court under
the Federal Tort Claims Act (FTCA).%
She then attempted to amend her federal
complaint to include the claims against the state court defendants.°® This presented the Court with an issue of whether it would recognize pendent party
jurisdiction over the nonfederal claim because the court had exclusive jurisdiction
over the federal claim under the FTCA. The plaintiff could not bring her federal claim in state court; thus, she would have to resort to the pursuit of her
claims in two different forams.!
Although Finley presented a compelling situation for the extension of pendent party jurisdiction,!°! the Court rejected the plaintiff's arguments.' The
Court was aware of the efficiency and convenience of pendent jurisdiction,! but
refused to exercise it without an affirmative statutory grant from Congress.“
The Court relied on its decisions in Aldinger and Kroger to support “the non
transferability of Gibbs to pendent party claims.”!° Thus, the Court responded to
91.
92.
93.
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
id. at 374-75; see Perdue, supra note 90, at 72.
Perdue, supra note 90, at 72.
94. Finley v. United States, 490 U.S. 545 (1989).
95. Id. at 546.
96. Id.
97. Id.
98. Id.
99. id. at 547.
100. See Mengler et al., supra note 4, at 214.
101. In Aldinger, the Court stated that exclusive federal jurisdiction might be 2 situation
where pendent party jurisdiction would be appropriate. Aldinger v. Howard, 427 U.S, 1, 18 (1976).
:
See supra text accompanying notes 38-54.
/
102. Finley v. United States, 490 U.S. 545, 555-56 (1989).
be sued [in
necessarily
cannot
claims
related
to
parties
that
103, Id. at 555. “[OJur holding
federal court] means that the efficiency and convenience of a consolidated action will sometimes
have to be forgone in favor of separate actions in state and federal courts.” Id.
104. fd. at 552-54, The FTCA did not expressly authorize jurisdiction over pendent parties.
id, at 552.
105. id. at 550.
1994]
Supplemental Jurisdiction
401
the question Aldinger left open, stressing that even exclusive federal jurisdiction
over an original claim was insufficient to allow the maintenance of pendent party
jurisdiction.'% This affirmative statutory grant requirement was a significant
departure from the Court’s holding in Aldinger. There, the Court held a federal
court could exercise pendent party jurisdiction unless there was an explicit
statutory exemption of jurisdiction over a particular party,'°
The breadth of the Finley holding seriously undermined the basis of both
pendent and ancillary jurisdiction.
Based on the language requiring an explicit
grant of jurisdiction, Finley appeared to preclude the exercise of both.!!° The
majority's broad language seemed to threaten the exercise of supplemental jurisdiction over any situation other than pendent claim situations under Gibbs.
“All our cases . . . have held that a grant of jurisdiction over claims involving
particular parties does not itself confer jurisdiction over additional claims by or
against different parties."112
—
,
Fortunately, in Finley, the Court called for a legislative response to the
situation.'!3 Justice Scalia, writing for the majority, stated: “Whatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be
changed by Congress.”!14 Congress responded approximately eighteen months
ater.
106.
107.
Jad. at 555-56,
Justice Blackmun dissented in Finley, as he did in Aldinger, in regards to the congres-
sional intent issues.
Id. at 557 (Blackmun, J., dissenting).
In this case, however, Justice Blackmun
argued the application of the Court's reasoning in Aidinger was misapplied to Ms. Finley’s situa-
tion. fd, at 356-57 (Blackmun, J., dissenting).
He explained the Court in A/dinger found the intent
of Congress to exclude municipalities from the language of 42 U.S.C. § 1983.
(Blackmun, J., dissenting).
Id. at 557
From this language, the Court determined Congress had affirmatively
rejected federal jurisdiction over the situation. id, (Blackmun, J., dissenting). In Finley, however,
Justice Blackmun found no intent to exclude private defendants from the plaintiff's FTCA litigation. fd, (Blackmun, J., dissenting). Moreover, when the federal jurisdiction over the original
claim is exclusive, the sensible result would allow pendent party jurisdiction. id. at 558
(Blackmun, J., dissenting).
108. Aldinger v. Howard, 427 U.S. 1, 16-17 (1976). The Court stated Conpress had specifically exempted counties from liability under § 1983. fd. at 17.
109. See 13 WRIGHT
ET AL, supra note 1, § 3523, at 15 (Supp. 1992).
110. Although the holding explicitly abolished only pendent party jurisdiction in the narrow
situation involving FTCA cases, the dissent in Findey noted that “all instances of asserted pendentparty jurisdiction will by definition involve a party as to whom Congress has impliedly ‘‘addressed
itself” by not expressly conferring subject-matter jurisdiction on the federal courts.” Finley v.
United States, 490 U.S. 545, 557 (1989) (Blackmun, J., dissenting) (quoting Aldinger v. Howard,
427 U.S. 1, 23 (1976) (Brennan, J,, dissenting).
LL]. Id. at 556. “The Gibbs line of cases was a departure from prior practice, and a departure that we have no intent to limit or impair. But Aldinger indicated that the Gibbs approach
would not be extended to the pendent-party field, and we decide today to retain that line.” Id.
112, Id.
113, Id.
114. id,
115. The Federal Courts Study Committee Implementation Act of 1990 implemented several recommendations of the Federal Courts Study Committee. Congress established this
Committee to study and report possible improvements to the federal court system. Federal Courts
Study Committee Implementation Act of 1990, 150 Conc. Rec. H13301-07 (daily ed. Oct. 27,
[Vol. 43
Drake Law Review
402.
In light of the consequences of a complete abolition of supplemental juris-
diction—the waste of judicial resources, the serious inconvenience imposed on
plaintiffs forced to proceed in more than one forum, and the overwhelming confusion that would result—the congressional response embodied in 28 U.S.C.
section 1367 was, for the most part, welcomed.!'6
IV. DEVELOPMENT OF SUPPLEMENTAL JURISDICTION
Both houses of Congress recognized the serious consequences of the Finley
holding and responded statutorily to protect the doctrines of pendent and ancillary jurisdiction."7_ As a result, President Bush signed the Judicial Improvements
‘Act of 1990 into law on December 1, 1990.8
Provisions in the Act contained,
among other subjects, the modification and codification of pendent and ancillary
jurisdiction, amending Title 28 of the United States Code.1!?
The language of 28 U.S.C. section 1367 codified and revised the case law
formulated by the Supreme Court under the doctrines of pendent and ancillary
jurisdiction and brought the two under the single label of supplemental jurisdiction.’ The statute provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claimis that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy
under Article Ill of the United States Constitution, Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of
additional parties.
statute
1990). ‘The Committee recommendations included modifications of the removal, venue, and
of limitations provisions as well as Congressional modification and codification of pendent and
ancillary jurisdiction. JUDICIAL CONFERENCE OF THE UNITED STATES, FEDERAL COURTS STUDY
COMMITTEE REPORT 47-48 (Aprii 2, 1990). See Federal Courts Study Commitiee Implementation
:
Act of 1990, 150 Conc, Rec. H13301-07 (daily ed. Oct. 27, 1990).
116. See Erwin Chemerinsky, Rationalizing Jurisdiction, 41 EMory L.J. 3, 5 (1992),
Rochelle C. Dreyfuss, The Debate Over §1367: Defining the Power to Define Federal Judicial
Power, 41 Emory L.J. 13, 13 (1992); Joan Steinman, Section 1367—Another Party Heard From,
et al.,
41 Emory L.J. 85, 85 (1992); Perdue, Flawed Bur Fixable, supra note 90, at 69; Mengler
supra note 4, at 213-14; Thomas D. Rowe et al., Compounding or Creating Confusion About,
Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 945-48 (1991). But
see Richard D. Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the
& Richard
Supplemental Jurisdiction Statute, 40 EMORY LJ. 445, 446 (1991); Thomas C. Arthur
D. Freer, Grasping at Burnt Straws:
The Disaster of the Supplemental Jurisdiction Statute, 40
Emory L.J, 963, 964-66 (1991).
117. H.R. Rep. No. 734, 101st Cong., 2d Sess. 28 (1990), reprinted in 1990 U.S.C.C.A.N.
6860, 6874.
118. 28 U.S.C. § 1367 (Supp. IV 1992).
119. id.
120. See CHEMERINSKY, supra note 6, § 5.4, at 51-52; Siegel, Changes in Federal Jurisdiction, supra note 23, at 63.
1994}
Supplemental Jurisdiction
403
(b) In any civil action of which the district courts have original jurisdiction
founded solely on section 1332 of this title, the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24 of the Federal
Rules of Civil Procedure, or over claims by persons proposed to be joined
as plaintiffs undex Rule 19 of such rules, or seeking to intervene as plaintiffs
under Rule 24 of such rules, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements of
section 1332.
{c) The district courts may deciine to exercise supplemental jurisdiction
over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
(d) The period of limitations for any claim asserted under subsection (a),
and for any other claim in the same action that is voluntarily dismissed at
the same time as or after the dismissal of the claim under subsection (a),
shall be tolled while the claim is pending and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling period.
(ec) As
used in this section,
the term “State” includes the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or posses-
sion of the United States. !2!
A. Restoration of Supplemental Jurisdiction
Except for a few deviations,!?? section 1367 restored supplemental jurisdiction to its pre-Finley status." Section 1367(a) provides a sweeping grant of
authority-when the district court has original jurisdiction of a claim, it “shall
have supplemental jurisdiction” over related claims.'24 The mandatory language
of subsection (a), however, is limited by the exceptions in diversity cases under
subsection (b)'% and by the court’s discretionary decision to decline jurisdiction
in specific instances under subsection (c).!26
In the first sentence of subsection (a), Congress used the constitutional
“case or controversy” standard from Article III.'2” The use of the Constitution’s
121.
122.
28 U.S.C § 1367 (Supp. IV 1992).
See infra text accompanying notes 144-145.
123.
See Mengler
et al., supra note 4, at 214.
124, 28 U.S.C. § 1367(a) (Supp. [V 1992).
125. Id. $ 1367(b).
126. Id. § 1367(c).
127. Id, § 1367(a). See U.S. Consr., art, IIL, § 2; supra text accompanying notes 24-33.
404
Drake Law Review
IVol. 43
own standard places supplemental jurisdiction at the outer constitutional limits,
where it stood under Gibbs.28 Notably, Congress placed no other semantic limitations on the exercise of jurisdiction as the Court previously had under Gibbs.1°
The last sentence of subsection (a) specifically confers supplemental jurisdiction to the district courts over “claims that involve the joinder or intervention
of additional parties.”"°0 This situation was previously known as pendent party
jurisdiction.'3!_ With this grant of supplemental jurisdiction, Congress clearly
overruled Finley and Aldinger, which rejected the concept of pendent party jurisdiction.'22 The jurisdiction-invoking claim must, however, be premised on some
grant besides diversity jurisdiction under section 1332.!33 The last sentence provides the explicit statutory jurisdictional authorization the Court found necessary
yet lacking in Finley.34 The progression of supplemental jurisdiction has come
full circle in this regard.!35 In Aldinger, the Supreme Court stated that a federal
court must inquire whether Congress had explicitly or implicitly negated the
exercise of supplemental jurisdiction.26 Then, in Finley, the Supreme Court
further restricted the district courts by requiring a determination that Congress
had explicitly authorized the exercise of supplemental jurisdiction.'""7 Today, a
federal court must only determine whether section 1367 explicitly rejects supSubsection (a) also limits the broad grant of
plemental jurisdiction.'3®
another federal statute “expressly provide[s]
if
supplemental jurisdiction
otherwise.”9°
B. Codification of Kroger and Controversy Over Diversity Jurisdiction
Subsection (b) codified the holding of Owen Equipment & Erection Co. v.
Kroger.'® It disallows the exercise of supplemental jurisdiction in cases founded
solely on diversity jurisdiction when the plaintiff seeks to join parties under the
joinder provisions in the Federal Rules of Civil Procedure, and the maintenance
of jurisdiction would conflict with the “complete diversity” requirements of sec,
tion 1332,'4!
128. Freer, supra note 116, at 473; Mengler et al., supra note 4, at 215.
129. In Gibbs, the Court defined the limits of supplemental jurisdiction to those claims sharing a “common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966).
130. 28 U.S.C. § 1367(a) (Supp. TV 1992).
131. See supra text accompanying notes 39-67.
132. Siegel, Changes in Federal Jurisdiction, supra note 23, at 65; Mengier et al., supra
note 4, at 215; Freer, supra note 116, at 473.
133. Freer, supra note 116, at 473.
134. Mengler et al., supra note 4, at 215.
135. See supra text and accompanying notes 84-86, 106- 108.
136, Aldinger v. Howard, 427 U.S. 1, 18 (1976).
137. Finley v. United States, 490 U.S. 545, 552-55 (1989).
138. 28 U.S.C. § 1367(a) (Supp. IV 1992).
:
139. id.
140. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978); see supra text accompanying notes 81-93.
‘
141, 28 U.S.C. § 1367(b) (Supp. IV 1992).
1994]
Supplemental Jurisdiction
405
This subsection has prompted the most
plemental jurisdiction.42 The language of debate and controversy over supcompletely destroy the exercise of suppleme subsection {b) does not, however,
Supplemental jurisdiction is disallowed only ntal jurisdiction in diversity cases.
when the exercise would undermine
the complete diversity requirement.!43
Subsection (b) eliminated a pre-sectio
to intervene as of right under supplemental n 1367 anomaly that allowed a party.
Procedure 24(a), but disallowed the same jurisdiction in Federal Rule of Civil
jurisdiction under Rule 19.4 Now the party party from obtaining supplemental
if doing so would be inconsistent with section can neither intervene nor be joined
1332,!45
Although many commentators find the subse
ction unduly restrictive,!46 the
last clause might provide courts some discr
etion
in supplemental jurisdiction
decisions.'47 In some circumstances, a court
may
dete
rmine the exercise of supplemental jurisdiction would not undermin
requirement.'8 For instance, if the court’s e section 1332's complete diversity
rest on firm foundations, requiring them to jurisdiction over the original claims
remain in federal court for adjudica~tion even if the court rejected the appended
clause of subsection (b) as a tool to main claim, the court could use the final
tain jurisdiction of the appended
claim.'® This is a more efficient use of
the
which is one of the main purposes behind secti federal and state court systems,
on 1367.'!0
C. Discretionary Rejection of Jurisdiction Unde
r Subsection (c)
Subsection (c) sets
out particular circu
may, in its discretion, decline to exercise suppmstances in which the federal court
lemental jurisdiction over a claim
that meets the requirements of subsection
(a).5'_ This section codified the elements set out by the Supreme Court in Unite
d
Court set forth three distinct situations in which Mine Workers v, Gibbs.32 The
exercise jurisdiction over the pendent claims: a district court should hesitate to
(1) when the district court would
142.
See Chemerinsky, supra note 116, at 5; Dreyfu
ss, supra note 116, at 13; Steinman,
Mengler et al., supra note 4, at 213-14;
Rowe
etal., supra note 116, at 945-48. Bur see Freer,
Supra Dote 116, at 446; Arthur & Freer, supra
note
116, at 963.
Supra note 116, at 85; Perdue, supra note
90, at 69;
143.
Siegel, Changes in Federal Jurisdiction
, supra
note 23, at 65-66. Subsection (b)
attempts to avoid the “sneaky plaintiff” situat
ion warned against in Kroger; however, counte
rclaims, particularly those which are compulsory
, are supplemental. Mengler et al., supra note
4, at
215 1.17. The legislative history supports this
also, stating that “in diversity-only actions the
district courts may not hear plaintiffs’ supplement
al claims when exercising supplemental jurisd
iction
would encourage plaintiffs to evade the Jurisd
ictional requirement of . . . § 1332.” HLR. Rep.
No.
734, 101st
Cong., 2d Sess. 29 ( 1990), reprinted in 1990 U.S.C
.C.A.N. 6860, 6875.
144,
145,
146.
147,
148.
149.
150.
151.
152.
See Mengler et al., supra note 4, at 215; MCCO
RMICK ET AL., supra note 6, at 617.
Mengier et al., Supra note 4, at 215; see 28
U.S.C. § 1367(b) (Supp. IV 1992).
Freer, supra
note 116, at 446; Arthur & Freer, supra note
116, at 963.
Siegel, Changes in Federal Jurisdiction, supra
note 23, at 67.
id,
Id.
Jd.
28 U.S.C. § 1367(c) (Supp. IV 1992).
United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966).
Drake Law Review
410
[Vol. 43
law negligence claims.!%° The court, however, disagreed, holding the negligence
claims did not “substantially predominate” assertions under the Carmack
Amendment, which were the “root” of the lawsuit.°7 The court denied the
motion to dismiss because it had no reason to decline jurisdiction over the state
law negligence claims.!98
In Storment v. Gossage, 1% the district court exercised supplemental jurisdiction over claims under an Illinois eavesdrop statute.20° The court based
original jurisdiction on claims under the Federal Communications Privacy Act.20!
The plaintiff was an attorney who had been disciplined when another lawyer discovered and reported a tape recorded conversation in which the plaintiff advised
his client to commit perjury. He filed suit against the defendant in state court,
and the defendant removed it to federal court.*%3 The plaintiff attempted to
remand the case to state court for lack of diversity. The court rejected the
plaintiff's argument, noting that the plaintiff had filed suit pursuant to a federal
statute, therefore, jurisdiction was based on 28 U.S.C. section 1331,%5 making
diversity of citizenship irrelevant. The court held the state and federal claims
were based on identical facts, which allowed for supplemental jurisdiction over
the state claims.2°’ The court granted the defendant’s summary judgment motion
and dismissed the plaintiff's claims with prejudice.”
)(B) (West Supp.
allows civil actions in district courts. Jd. at 1073; 49 U.S.C.A. § 11707(d)(2
id,
carriers.
1992). This statute covers the liability of common
196. -American Pfauter, Ltd. v. Freeman Decorating Co., 772 F. Supp. at 1072.
197.
Id. at 1073. The court harshly criticized both parties for their focus on pendent juris-
§ 1367.
diction; a doctrine, the court stated, that does not exist after the enactment of
/d. “Neither
of federal
Freeman nor American Pfauter appear to have a particularly firm grasp of the nuances
jurisdiction.” Id.
198. id. at 1073-74.
199, Storment v. Gossage, 791 F. Supp. 215 (C.D. Til. 1992).
200. fd, at 218.
(1992).
901. Id. at 218; see 18 U.S.C.A. § 2511 (West Supp. 1993); 720 I.L.C.S, 5/14-2
g a client
representin
was
plaintiff
The
216-17.
at
202. Storment v. Gossage, 791 F. Supp.
were
involved
hearings
the
of
Many
Id.
case.
custody
child
and
dissolution
marriage
a
involved in
of
appeal
on
husband
the
represented
defendant
tape-recorded with both parties’ consent. id. The
tape-recording
the
to
listen
to
permission
court’s
the
obtained
She
217,
at
fd.
suit.
the underlying
reviewing the tapes
for the purpose of determining if there existed a basis for the appeal. /d. While
record during a recess,
she heard the plaintiff advise his client, while the tape recorder continued to
of the
to commit perjury on the stand. Id. The defendant brought the conversation to the attention
Attorney
Illinois
the
to
letter
a
sent
turn
in
who
,
proceedings
divorce
the
over
presiding
judge
proceedings, the
Registration and Disciplinary Commission. Jd. In the midst of the disciplinary
Act and the
Privacy
tions
Communica
Federal
the
violated
defendant
the
claiming
suit
filed
plaintiff
IHinois eavesdrop statute. Id,
203. id. at 217.
204. id.
n of all civil
205. Section 1331 provides: “The district courts shall have original jurisdictio
States.” 28 U.S.C. § 1331
actions arising under the Constitution, laws, or treaties of the United
(Supp. [V 1992).
206. Storment v. Gossage, 791 F. Supp. 215, 218 (C.D. IIL 1992).
207. Id.
208. Id. at 221,
1994]
Supplemental Jurisdiction
411
B. Diversity Jurisdiction
The interpretation of subsection (b) has been extremely limited and has
received little clarification.™ One court, however, denied an applicant’s motion
to intervene as a defendant under Federal Rule of Civil Procedure 24, which
would destroy diversity jurisdiction.2 The court did not allow the intervention
because the parties were properly aligned to reflect the applicant's real
interests.21!
Another court had difficulties in defining the term “original jurisdiction” in
subsection (a) in a case involving the alignment of a corporation as a defendant in
a “hostile management” situation.2!2_ The court interpreted the term to mean
“jurisdiction in the first instance over a viable lawsuit, without regard to parties to
be joined later.”"3 The court held “where a derivative suit brought in diversity is
subject to dismissal for failure to join an indispensable, non-diverse party, sup-
plemental jurisdiction is not available to join that non-diverse party because,
under § 1367(@), the [cJourt never had ‘original jurisdiction’ over the derivative
action.”
In a misapplication of subsection (a) to a diversity situation, the court in
Meritor Savings Bank v. Camelback Canyon Investors?"5 allowed supplemental
jurisdiction over one defendant’s cross claim against another.2'© The court analyzed the situation under subsection (a) even though the case was brought under
diversity jurisdiction and required the court to interpret Arizona law.2!7
Responding to the defendant’s opposition to the maintenance of jurisdiction over
the cross claim, the court applied Gibbs and stated Gibbs allowed a federal court
to retain jurisdiction over claims lacking an independent jurisdictional basis if
they are sufficiently related to the claims over which the court does have juris-
diction.2!®
Under
subsection
(b), however,
the court could
have
retained
jurisdiction because supplemental jurisdiction in this situation would not undermine the requirements of complete diversity.2'9 Because a defendant asserted the
cross claim, this exercise of jurisdiction would not conflict with the congressional
intent underlying subsection (b), which was primarily aimed at prohibiting plain-
209.
13B WRIGHT
ET AL., supra note 1, § 3567.2 at 16 (Supp. 1992). See generally id. at 36-
37 (Supp. 1994).
210. Atherton v. Casey, No. 92-1283, 1992 WL 167033 (E.D. La. 1992).
211.
212.
id. at*1.
ZB Holdings, Inc. v. White, 144 F.R.D, 42, 45 (S.D.N.Y. 1992).
The part owner of a
closely held corporation filed a derivative action. id. at 43-44, The defendants moved to dismiss,
asserting the corporation was a necessary party which was required to be joined and diversity did
not exist. fd. at 44,
213.
214.
Id. at 47,
Ia.
215.
Meritor Savings Bank v. Camelback Canyon Investors, 783 F. Supp. 455 (D. Ariz.
216.
217.
218.
fd. at 457.
id. at 456-57,
Id. at 457.
219.
See 28 U.S.C. § 1367(b) (Supp. IV 1992).
1991).
[Vol. 43
Drake Law Review
412
tiffs from obtaining a federal forum, then asserting claims against subsequently
added, nondiverse defendants.2°
It appears, from the case law we will have to wait to determine how courts
will interpret subsection (b) in a diversity context.
C. Discretionary Denial of Supplemental Jurisdiction
Subsection (c) of section 1367 gives the district courts discretion to decline
the exercise of supplemental jurisdiction under particular circumstances.”! This
broad discretion would also appear to allow the federal courts to retain jurisdiction even if the claims in question fall under one of the four grounds for dismissal
under subsection (c).?2
1.
Dismissal of Original Claims
Many of the courts deciding supplemental jurisdiction questions have dealt
situation covered by the third enumerated ground for dismissal, where
the
with
“the district court has dismissed all claims over which it has original jurisdiction.”223 In this situation the district court’s exercise of discretion is critical.2* It
is particularly important for the court to consider the point in the litigation in
which the federal claim was dismissed.?%
When confronted with a situation in which the federal claims have been
dismissed, leaving only state claims to be litigated, the district court will ordinar-
ily decline to exercise supplemental jurisdiction.“* It is important to note,
however, that district courts have clearly expressed the intention to exercise dis-
220.
221.
222.
223.
224.
See Siegel, Changes in Federal Jurisdiction, supra note 23, at 65-66.
28 U.S.C. § 1367(c) (Supp. I'V 1992).
Id; see also Siegel, Changes in Federal Jurisdiction, supra note 23, at 67.
28 U.S.C. § 1367(c)(3) (Supp. [V 1992).
Siegel, Changes in Federal Jurisdiction, supra note 23, at 68.
225.
Id; see also Freund v. Florio, 795 F. Supp. 702, 710-11 (D.N.J, 1992) (holding when
226.
Wegbreit
the plaintiff's federal claim was dismissed at an early stage of the proceedings, dismissal of the
pendent state claims was appropriate and would not waste judicial resources or prejudice the
parties).
v. Marley
Orchards
Corp., 793 F. Supp.
957, 964 (E.D. Wash.
1991}
(explaining that “(a]lthough the [cJourt may retain jurisdiction, the better practice is to dismiss the
state claims without prejudice”); Leyh v. Property Clerk of City of New York Police Dep't, 774 F.
Supp. 742, 747 (B.D.N.Y. 1991) (holding that if “only the state law claim would be left for adjudication . . . the matter should be relegated to the state court”); Freund v. Florio, 795 F. Supp. at 71011 (refusing to exercise supplemental jurisdiction over pendent claims brought under New Jersey
Constitution upon dismissal of challenges under federal Constitution to New Jersey statute); Ifert v.
Miller 138 B.R. 159, 168-69 n.18 (E.D. Pa.) (declining to exercise supplemental jurisdiction over
tort and contract counterclaims subsequent to withdrawal of federal claims), aff'd, 981.F.2d 1247
(3d Cir, 1992); Procopio v. Johnson, 785 F. Supp. 1317, 1320 (N.D. Ml. 1992) (declining to exer-
cise supplemental jurisdiction over state claims following the dismissal of federal claim), aff'd, 994
F.2d 325 (7th Cir. 1993).
1994]
Supplemental Jurisdiction
413
cretion in these decisions, with the suggestion that jurisdiction will not always be
declined.?77
2,
Predominance of Claims
The second enumerated ground
district court to decline supplemental
dominates over the claim or claims
jurisdiction.”8 This ground arose
for dismissal of pendent claims allows the
jurisdiction if “the claim substantially preover which the district court has original
out of the doctrines of abstention, which
allow federal courts to stay or dismiss claims possessing heavy
state law
elements.229
One federal court found a claim by a council of condominium unit owners
to enjoin another owner from continuing to rent units under a separate reservation
and marketing system would eventually predominate over the federal antitrust
claims asserted against the defendant. The court declined to exercise supplemental jurisdiction over the claim for an injunction! and further stated the
plaintiffs’ federal claims were tenuous, asserted in order to obtain a federal forum
for adjudication of the matter.22
Another court interpreting this provision of subsection (c) maintained
jurisdiction over state law claims appended to a civil rights claim under 42 U.S.C.
section 1983.3 The court held the state law claims asserting bystander recovery
and negligent supervision and training were “sufficiently established areas of
New Mexico law.”™4 The court, therefore, chose not to decline supplemental
jurisdiction.45 Although the court purported to employ an analysis under subsection (c)(2), the predominance of claims provision, the analysis appeared to more
closely resemble a subsection (c)(1) analysis, the provision recognizing that
“novel or complex issue[s] of State law” should not be adjudicated in federal
courts. The court held the state claims in this case were not substantially predominate over the federal claims.”7
227. Wegbreit v. Marley Orchards Corp., 793 F. Supp. at 964 (“Although the court may
retain jurisdiction, the better practice is to dismiss the state claims without prejudice,”}; Freund v.
Florio, 795 F. Supp. at 710 (finding “{d]ismissal of plaintiff's state law claims [was] appropriate”).
228. 28 U.S.C. § 1367(c)(2) (Supp. IV 1992).
229. Siegel, Practice Commentary, supra note 23, at 834.
230.
Council of Unit Owners of Wisp Condominium, Inc., v. Recreational Indus., Inc., 793
F. Supp. 120, 123 (D. Md. 1992).
231. dd.
232. . Id.; see infra text accompanying notes 247-252,
233. Sollars v. City of Albuquerque, 794 F. Supp. 360, 362-63 (D.N.M. 1992); see supra
note 57 for text of 42 U.S.C. § 1983.
234, Sollars v. City of Albuquerque, 794 F. Supp. at 362.
235. Id.
236. 28 U.S.C. § 1367(c)(1) (Supp. [V 1992).
237. Sollars v. City of Albuquerque, 794 F. Supp. at 362; see also American Pfauter, Ltd.,
v. Freeman Decorating Co., 772 F. Supp. 1071, 1073-74 (N.D. Hil. 1991) (holding the plaintiff's
negligence claims did not substantially predominate over plaintiff’s claims under the Carmack
Amendment when a subcontractor negligently loaded plaintiffs machine on to the truck resulting
in damages).
414
3.
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[Vol. 43
Other Compelling Reasons for Declining Jurisdiction
The provision in subsection (c) allows a district court to decline jurisdiction
in “exceptional circumstances [if] there are other compelling reasons” for doing
50.28 This gives the court broad discretion to deny jurisdiction by providing a
“catch-all” provision, which allows denial in cases that do not fit into one of the
other categories.2? On the other hand, it could be interpreted as a severe restriction on the court’s discretion, which would suggest there should always be
compelling reasons for denial of supplemental jurisdiction.
One court used this provision to deny supplemental jurisdiction over third
party complaints for contribution appended to an Internal Revenue Service
penalty enforcement action.*! The court held the state claims satisfied the “case”
requirements of subsection (a), and the issues would be expected to be tried in a
single forum; however, because it was a penalty enforcement claim the court, in
its discretion, found compelling reasons to decline supplemental jurisdiction.
The court explained that allowing jurisdiction over the contribution claims would
prolong and complicate the litigation, preventing efficient collection of the taxes
at issue.“ This holding, the court stated, complied with the traditional rule
among federal courts to separate contribution claims from penalty enforcement
actions because the result would be an unnecessarily complicated tax proceedThe court further noted a desire to use section 1367 to promote
ing.
Congress’s goal of not using one statute to undermine the purposes of another.?*°
This would be the result if all claims were litigated together.
Another court used subsection (c)(4) as a catch-all provision.
The court in
Wisp Condominium, after first holding the. plaintiffs’ state law claims predomi-
nated over the federal antitrust claim (a subsection (c)(2) denial), went on to
address the plaintiffs’ claims under subsection (c)(4).447 The court stated that
because the plaintiffs had apparently asserted the tenuous federal claim primarily
to obtain a federal forum, the court would decline jurisdiction.24* When a litigant
attempts to obtain a federal forum in this way, compelling reasons exist to deny
supplemental jurisdiction under section 1367. Thus, the court used this provision to solidify its denial of the plaintiffs’ request for an injunction.?°
238.
28.U.S.C. § 1367(c)(4) (Supp. IV 1992).
239.
Perdue, supra note 90, at 71.
240.
241.
242.
243,
244.
245.
246.
247.
Id:; see Siegel, Practice Commentary, supra note 23, at 836.
Carlucci v. United States, 793 F. Supp. 482, 484 (S.D.N.Y. 1992).
Id, at 485.
id. at 486.
id.
id.
.
id.
Council of Unit Owners of Wisp Condominium, Inc. v. Recreational Indus., Inc., 793
F. Supp. 120, 123 (D. Md. 1992).
248. id.
249. Id.
250. dd.
1994]
Supplemental Jurisdiction
415
VI. RESPONSE TO SUPPLEMENTAL JURISDICTION
Most commentators
who have considered the impact of supplemental
jurisdiction view the statute as a welcome improvement in response to the Finley
holding.*' Others, however, criticize the new statute harshly, focusing on its
ambiguities and its treatment of diversity jurisdiction under subsection (b).4?
Many have suggested the statute has problems which may cause interpretation
difficulties for district courts,
and its critics urge its repeal is absolutely
necessary.254
One minor problem addressed by several commentators is the ambiguous
tanguage in the statute. In subsection (a), the statute uses the constitutional
ase” standard for determining whether supplemental jurisdiction exists.45 This
will |logically lead most courts to employ the Gibbs “common nucleus of operative fact” test.26 Indeed, many courts since the enactment of section 1367 have
used the Gibbs analysis when deciding supplemental jurisdiction issues.*’ This
language has been criticized as leaving courts in no better position to employ a
clear standard than they were before the Finley holding.** Some critics argue
that a more specific standard would have been preferable.7
The most controversial and furiously debated aspect of section 1367 is its
treatment of diversity jurisdiction.26° Those who criticize the codification of
Owen Equipment & Erection Co. v. Kroger*5' in subsection (b) of the statute say
it reflects an unnecessary bias against diversity jurisdiction. One commentator
has argued that “Kroger was an unprincipled, result-criented opinion based upon
antipathy to diversity jurisdiction and passed off as having been intended by
Congress in enacting the diversity of jurisdiction statute.”*° It is important to
note that nothing in the language of 28 U.S.C. section 1332 (the statute granting
diversity jurisdiction to federal courts), requires complete diversity.24
The
251.
See Chemerinsky, supra note 116, at 5; Dreyfuss, supra note 116, at 13-14; Steinman,
supra note 116, at 85; Perdue, supra note 90, at 69; Mengler
et al., supra note 4, at 213-14; Rowe
et al., supra note 116, at 945-48.
252,
253.
254.
255.
256.
Freer, supra note 116, at 446; Arthur & Freer, supra note 116, at 963-66.
See Chemerinsky, supra note 116, at 3; Perdue, supra note 90, at 70.
See Freer, supra note 116, at 486; Arthur & Freer, supra note 116, at 989-90.
28 U.S.C. § 1367(a) (Supp. IV 1992).
See United Mine Workers vy. Gibbs, 383 U.S. 715, 725 (1966).
257.
See, e.g., Godfrey v. Perkin-Elmer Corp., 794 F. Supp. 1179, 1184 (D.N.H.
1992);
Estate of Bruce v. City of Middleton, 781 F. Supp. 1013, 1016 (S.D.N.Y. 1992); CorporateResources, Inc. v. Southeast Suburban Ambulatory Surgical Center, Inc., 774 F. Supp. 503, 505
(N.D. Ill. 1991); Amold v. Kimberly Quality Care Nursing Service, 762 F. ‘Supp.
1182, 1186 (M.D.
Pa. 1991); Rosen v. Chang, 758 F. Supp. 799, 802 (D.R.L 1991).
258. See Perdue, supra note 90, at 70. But see Freer, supra note 116, at 473 (opposing the
statute in favor of the constitutional limit).
259. See Perdue, supra note 90, at 70.
260. See Arthur & Freer, supra note 116, at 963.
261. Owen Equip. & Erection Co. vy. Kroger, 437 U.S. 365 (1978).
262. See Chemerinsky, supra note 116, at 6-7; Freer, supra note 116, at 446; Arthur &
Freer, supra note 116, at 963.
263.
Freer, supra note 116, at 476.
264,
Chemerinsky, supra note 116, at 7.
416
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[Vol. 43
diversity requirement, it has been argued, encourages a plaintiff to add or omit
parties to reach a desired result,2© and it ultimately has an incongnuous effect on
similarly situated parties.“° The proponents of the statute, however, argue the
drafters’ goal was not the wholesale revision of diversity jurisdiction.2*’ The
codification of supplemental jurisdiction was intended to overrule Finley, not to
change other preexisting aspects of the law, such as the complete diversity
requirement.” It appears the dissatisfaction with diversity jurisdiction existed
before the proposal of section 1367 and will most likely continue to plague those
on each side of the argument. Because the codification of Kroger and the maintenance of the complete diversity requirement was sought by Congress, many
have argued the differing treatment set forth for diversity cases in subsection (b)
is logical. It continues to limit the scope and number of cases in the federal
court system founded on diversity jurisdiction, and without subsection (b), the
total diversity rule would have been obliterated.?”
Subsection (c) has been criticized regarding the degree of discretion
granted to federal courts. It is primarily a codification of the Gibbs?" discretion
analysis.*?2 The tone of the statutory language of the subsection differs from that:
found in Gibbs.??3
The Gibbs court held “pendent jurisdiction is a doctrine of
discretion, not of plaintiff's right.” The statutory language, however, appears
to significantly limit this broad grant of discretion by suggesting the court must
be confronted with “exceptional circumstances” and have “compelling reasons”
before denying supplemental jurisdiction.2"5
Although this conflicts with
Gibbs," cases recently decided under the statutory language suggest that courts
continue te embrace the broad discretion of the Gibbs analysis.777 Moreover,
courts use the catch-all provision, subsection (c)(4), to broaden their discretion
further, allowing the denial of supplemental jurisdiction when the circumstances
surrounding the case do not fit into the other grounds for dismissal?” or to solidify dismissal under other provisions.?
,
265.
266,
Id.
Id.
267.
268.
Id.
Rowe et al., supra note 116, at 949.
269.
270.
271.
Perdue, supra note 90, at 72-74, Chemerinsky, supra note 116, at 6.
Id.
United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966).
272.
Perdue, supra note 90, at 71.
273. See id.
274. United Mine Workers v. Gibbs, 383 U.S. at 726.
275. Perdue, supra note 90, at 71.
276. See id.
277. See, e.g., Procopio v. Johnson, 785 F. Supp. 1317, 1320 (N.D. Tl. 1992) (denying supplemental jurisdiction over state claims of fraudulent misrepresentation and intentional infliction of
emotional distress, following dismissal of federal civil rights claim), aff'd, 994 F.2d 325 (7th Cir.
1993); Lahaza v. Azeff, 790 F. Supp. 88, 93-94 (B.D. Pa. 1992) (denying supplemental jurisdiction
over state law claims after dismissal of § 1983 claims which formed the basis of the court’s original
jurisdiction).
278. See Perdue, supra note 90, at 71.
279. Council of Unit Owners of Wisp Condominium, Inc. v. Recreational Indus., Inc., 793
F, Supp. 120, 123 (D. Md. 1992).
1994]
Supplemental Jurisdiction
417
VIL. CONCLUSION
Supplemental jurisdiction promotes judicial economy and efficiency and
protects access to the federal court system.
Further, it has taken two doctrines
mired in confusion and clarified them under one uniform concept. Although several commentators have found difficulties and ambiguities in section 1367, it is
difficult to support an argument against the utility of the concept of supplemental
jurisdiction.
Thus far, courts have treated the statute as a codification of case law doc-
trines that existed before the Finley decision. The relatively stable concepts
under subsections (a) and (c) have been reestablished by courts deciding supplemental jurisdiction issues. Because of the limited application of the statute by
courts, many of the diversity issues under subsection (b) have yet to be explored.
Supplemental jurisdiction was a necessary response to the Supreme Court’s
rejéction of auxiliary jurisdiction in Finley. Presently, it appears to be functioning as Congress expected and desired. Further judicial interpretation, however,
may unearth problems with the ambiguities and result in unanticipated effects on
federal subject matter jurisdiction.
Elizabeth Delagardelle