Essay Question from the 2007 CivPro Exam

Essay Question 2. 

P1 (a citizen of New York) and P2 (a citizen of New Jersey) joined as co-plaintiffs to sue D (a citizen of Connecticut) for state-law negligence in the Federal District Court for the District of Connecticut. P1 and P2 are each asking for $100,000 in personal injury damages as a result of a car accident in Connecticut involving four cars driven by P1, P2, D, and X (a citizen of New York). After filing and serving their complaint, P1 joined a state-law negligence action against P2 and X, asking for $50,000 in damage to his car that P1 claims was due either to P2’s or X’s negligence in the same accident. Is there federal subject matter jurisdiction for P1’s action against X? If there is, is it right that there is? If there isn’t, is it right that there isn’t?  

ANSWER

Since P1’s action against X does not have its own source of SMJ (the parties are not diverse and the jurisdictional minimum is not met), the question is whether there is supplemental jurisdiction for it under 28 USC 1367. P1 & P2 v. D looks like an adequate diversity case (there is complete diversity and the jurisdictional minimum is met). Furthermore, P1’s action against X is part of the same constitutional case or controversy as P1 & P2 v. D, so 1367(a) is satisfied. 

What most of you said at this point is that X was joined under Rule 20 and that P1’s action against X was therefore an action by a plaintiff against someone made a party under R. 20. It therefore fell under one of the exceptions to supplemental jurisdiction spelled out in 1367(b). 

But it is worth mentioning that 13(h) governs the joinder of parties to crossclaims, and that is what is going on here: X is being joined to P1’s crossclaim against P2. Therefore, there is an argument that this action does not fall under the exceptions in 1367(b), since 1367(b) does not mention actions by plaintiffs against persons made parties under 13(h). Another drafting error. It was a recognition of this error that I was really looking for in the essay. If you mentioned it, you were heavily rewarded. It is possible, however, to say that joinder under 13(h) is joinder under Rules 20 or 19, since 13(h) refers to the standards in Rules 20 and 19. 

Indeed the redrafted version of R 13(h) (valid Dec. 1, 2007 and not assigned for the 2007 class) makes it even more explicit that joinder under 13(h) is joinder under 20 (or 19). It says "(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim." The previous version said "(h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20." The old language made it sound as if the language of 19 and 20 were incorporated into 13(h).

Would the fact that the action against X did not fall under the exceptions spelled out in 1367(b) mean that it has supplemental jurisdiction? Not so fast. One might be able to argue that supplemental jurisdiction is unavailable because the addition of X contaminates the original action (P1 & P2 v. D), making that no longer an action over which the court has original jurisdiction. (See Kennedy’s contamination theory in Allapattah.) But one can argue that the Kennedy’s contamination theory does not apply P1’s action against X, because that is not an action by a plaintiff against a defendant. It is an action by a plaintiff against a crossclaim defendant. It is only to actions by plaintiffs against defendants that the contamination theory is meant to apply. I didn’t expect a solution to this puzzle (it is unclear just how far the contamination theory is supposed to go).

As I noted, however, the vast majority of you did not mention the 13(h) issue. You simply said that X was made a party under R. 20 and thus that an exception 1367(b) applied. Incidentally, even here it may be that the real reason that P1’s action against X would not have SMJ is due to the contamination theory. X could contaminate the original action of P1 & P2 v. D, making the question of whether an exception in 1367(b) applies moot. (A few of you noticed this.)

A final issue is that P1’s crossclaim against P2 does not itself have supplemental jurisdiction (it clearly is an action by a plaintiff against someone made a party under R 20 and so clearly falls under an exception in 1367(b)). That creates a problem for how P1’s action against X can be joined under 13(h), since there is no good crossclaim for it to be joined to. I was hoping some of you might mention this problem, but no one did.

Finally, should there be supplemental jurisdiction here? The answer is pretty clearly no. It would be an easy end-run around the diversity statute, since P1, wanting to sue X in federal court but being unable to do so directly because they not diverse, could get the action into federal court anyway, by joining it to what is otherwise an acceptable diversity action. The supplemental jurisdiction statute was drafted (however inadequately) precisely to avoid such strategies.

Comments

[Vahid D]

Professor,
I looked for the actual language of 13(h), and all it says is that Rules 19 and 20 apply to the joinder of a party in a counterclaim. Therefore, this seems to be saying that there is no special recognition of a party joined in a counterclaim, and that therefore X was indeed joined under 19/20, making P's claim against X without supplemental jurisdiction under 1367(b).

This thus clears any worries about the potential run-around the supplemental jurisdiction statute.

[Vahid D]

I guess my question would be, has an opinion (or brief) ever successfully distinguished a party joined under 13(h) from one joined under 19/20 for purposes of determining supplemental jurisdiction?

[Michael S. Green]

You are right. I did not notice it but the answer to the 2007 exam is no longer applicable. In December of 2007 the Federal Rules were restyled and the new language of R 13(h) states
explicitly that R 20 and 19 applies. (I tested my 2007 students on the rules that were applicable during most of the class, not those that became valid in December 2007.)

This is what the old version said:

(h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.

The argument I made makes more sense under the old version. I have rewritten the answer with this in mind.