State of Ariz. v. Cook Paint & Varnish Co., 75-1232

• Decision Date: 20 August 1976
• Docket Number: No. 75-1232,75-1232
• Citation: 541 F.2d 226
• Parties: 1976-2 Trade Cases 61,051 STATE OF ARIZONA, in its own behalf and on behalf of its agencies, departments, commissions and political subdivisions, et al., Plaintiffs-Appellants, v. COOK PAINT AND VARNISH COMPANY, a Delaware Corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

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541 F.2d 226 1976-2 Trade Cases 61,051 STATE OF ARIZONA, in its own behalf and on behalf of its
agencies, departments, commissions and political
subdivisions, et al., Plaintiffs-Appellants,
v.
COOK PAINT AND VARNISH COMPANY, a Delaware Corporation, et
al., Defendants-Appellees. No. 75-1232. United States Court of Appeals,
Ninth Circuit. Aug. 20, 1976.
Rehearing and Rehearing In Banc Denied Oct. 14, 1976.

Philip Von Ammon, and Clavin Udall (argued), of Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for plaintiffs-appellants.

Moses Lasky (argued), of Brobeck, Phleger & Harrison, San Francisco, Cal., for defendants-appellees.

OPINION

Before DUNIWAY, GOODWIN and SNEED, Circuit Judges.

PER CURIAM:

The judgment is affirmed in all respects, for the reasons stated by District Judge Renfrew in his opinion, D.C.Ariz., 1975, 391 F.Supp. 962.

At oral argument, we raised a question as to the court's jurisdiction over counts two and three of the complaint. Appellants' counsel asserted that it rests (as Judge Renfrew

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states, 391 F.Supp. at 965) on diversity of citizenship (28 U.S.C. § 1332). Appellees' counsel responded that the presence of the state of Arizona as plaintiff destroyed the necessary diversity. We called for memoranda on the question. Appellants' memorandum now asserts that diversity jurisdiction is lacking because of the joinder of Arizona as a plaintiff, citing Arctic Maid v. Territory of Alaska, 9 Cir., 1961, 297 F.2d 28, 31. See also Fifty Associates v. Prudential Ins. Co., 9 Cir., 1970, 446 F.2d 1187, 1191. On the other hand, appellees assert that the presence of Arizona should not destroy the diversity jurisdiction over the claims of the other plaintiffs, because each plaintiff has a separate claim, and they are in the same case with each other and with Arizona only by reason of the liberal joinder provisions of the Federal Rules of Civil Procedure. Caldwell-Clements, Inc. v. Cowan Publishing Corp., S.D.N.Y., 1955, 130 F.Supp. 326, is cited. We need not decide this question, because both sides agree and so do we that the court had pendent jurisdiction over counts two and three.

As appellees state:

This present case is a textbook example of pendent jurisdiction. The claims "derive from a common nucleus of operative fact;" the basis test is that "if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding...