Carpenters Southern California Administrative Corp. v. D & L Camp Const. Co., Inc.

• Decision Date: 23 July 1984
• Docket Number: No. 82-6050,82-6050
• Citation: 738 F.2d 999
• Parties: , 5 Employee Benefits Ca 2222 CARPENTERS SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION, Plaintiff-Appellant, v. D & L CAMP CONSTRUCTION COMPANY, INC., a corporation; Surety Company of the Pacific, a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 999

738 F.2d 999

39 Fed.R.Serv.2d 944, 5 Employee Benefits Ca 2222

CARPENTERS SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION Plaintiff-Appellant, v. D & L CAMP CONSTRUCTION COMPANY, INC., a corporation Surety Company of the Pacific, a corporation Defendants-Appellees.

No. 82-6050.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 6, 1983.

Decided July 23, 1984.

Law offices of Richard A. Brownstein, Robert E. McFarlane, Los Angeles, Cal., for plaintiff-appellant.

Jeffrey M. Hausman, Santa Monica, Cal., Edgar Fraser, Wadsworth, Fraser & Dahl, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before SNEED, KENNEDY, and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge.

This is a suit to recover unpaid contributions to an employee benefit plan. The plaintiff-appellant, as administrator of the plan, ^* brought an action under section 502 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1132, against an employer, D & L Camp Construction Company. In addition, the plaintiff sued the surety on Camp's state contractor license bond, required under California state law to protect those damaged by actions of the contractor. Cal.Bus. & Prof.Code Sec. 7071.5 (Cum.Supp.1984). The issue in this appeal is whether the district court properly dismissed the action against the surety, Surety Company of the Pacific, for lack of subject matter jurisdiction. The district court reasoned that dismissal was required because diversity of citizenship between the plaintiff and the surety did not exist, and any cause of action against the surety was founded upon state rather than federal law. We affirm.

Plaintiff contends that the district court should have exercised pendent jurisdiction over the claim against the surety. In refusing to exercise pendent party jurisdiction, however, the district court was applying a long line of cases of this circuit. They hold that under a theory of pendent jurisdiction, a state claim against a defendant may be added to a pending claim over which the court already has jurisdiction, but that pendent jurisdiction does not permit a new party to be added to a case absent an independent jurisdictional basis. Safeco Insurance Co. v. Guyton, 692 F.2d 551, 555-56 (9th Cir.1982); Munoz v. Small Business Administration, 644 F.2d 1361, 1365-66 (9th Cir.1981); Ayala v. United States, 550 F.2d 1196, 1197 (9th Cir.1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978); Hymer v. Chai, 407 F.2d 136, 137-38 (9th Cir.1969); Williams v. United States, 405 F.2d 951, 954 (9th Cir.1969).

Plaintiff asks us to reconsider this court's position in the light of the Supreme Court's decision in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). There the Court affirmed this court's denial of pendent party jurisdiction in Aldinger v. Howard, 513 F.2d 1257 (9th Cir.1975), but indicated that as a matter of discretion, pendent party jurisdiction might be available in some cases where the federal statutory scheme might permit treating the entire proceeding as "one constitutional 'case.' " Aldinger, 427 U.S. at 9, 96 S.Ct. at 2418 (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) (pendent claim jurisdiction may exist when plaintiff's claims are "such that he would ordinarily be expected to try them all in one judicial proceeding ....")). This panel is precluded from such reconsideration in light of this court's repeated post-Aldinger reaffirmations of our refusal to permit pendent party jurisdiction in circumstances like this. See Safeco, 692 F.2d at 555-56; Munoz, 644 F.2d at 1365-66; Ayala, 550 F.2d at 1197.

Even if a course of reconsideration were open to us, we would not view this case as appropriate for the exercise of pendent party jurisdiction. The plaintiff argues that the case is suitable because liability of the surety automatically follows from liability of the principal. According to plaintiff, the claims against the employer and the bond involve identical issues. That, however, is incorrect. Even if the employer's liability to the plaintiff were established, the claim against the surety could create a galaxy of problems arising under California law. State issues might include compliance with the various California statutory requirements, see Cal.Bus. & Prof.Code Secs. 7071.5-7071.15 (1975 & Cum.Supp.1984), statute of limitations issues, see Regents of the University of California v. Hartford Accident & Indemnity Co., 21 Cal.3d 624, 147 Cal.Rptr. 486, 581 P.2d 197 (1978), and this claimant's position in relation to the claims of other claimants to the bond. See Sweeney v. McClaran, 58 Cal.App.3d 824, 826-27, 130 Cal.Rptr. 205, 207 (1976).

As...