DeBellas v. United States

Decision Date17 July 1982
Docket NumberNo. 81 Civ. 6991 (VLB).,81 Civ. 6991 (VLB).
Citation542 F. Supp. 999
PartiesJames J. and Victoria DeBELLAS, Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Arenstein & Huston, P. C. by Martin Seinfeld, New York City, for plaintiffs.

Alexander, Ash, Schwartz & Cohen, New York City, for defendant Kesten Plumbing & Heating Corp.

Langan & Levy by H. Michael O'Brien, New York City, for defendant PJR Const. Corp.

John S. Martin, Jr., U. S. Atty., S. D. N. Y. by Carolyn L. Simpson, Asst. U. S. Atty., New York City, for defendant the U. S.



Plaintiffs James J. DeBellas and Victoria DeBellas brought this personal injury action for alleged negligence on the part of defendants in the construction, repair and renovation taking place at the premises of 201 Varick Street, New York, New York, on March 4, 1980. Defendants are United States of America ("United States"), which, through its General Services Administration, was the owner of the aforesaid premises; PJR Construction Corporation ("PJR"), general contractor employed by the United States at the premises; and Kesten Plumbing & Heating Corporation ("Kesten"), subcontractor engaged in work at the premises (PJR and Kesten are collectively referred to as "the corporate defendants").

Plaintiffs have brought suit under the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq., and have predicated jurisdiction on 28 U.S.C. § 1346(b). All defendants have answered the complaint. Each of the defendants has filed cross-claims against the remaining codefendants.


Defendant Kesten moved for an order dismissing the complaint against it for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Plaintiff cross-moved for an order striking the affirmative defenses of defendants Kesten and PJR based on lack of diversity jurisdiction. Fed.R.Civ.P. 12(f).

On July 13, 1982 I denied defendant Kesten's motion to dismiss, and granted plaintiff's cross-motion to strike the affirmative defenses. This memorandum sets out the reasons for those dispositions.


Plaintiffs' claim against defendants Kesten and PJR sounds in common law negligence. Acknowledging that plaintiff and the corporate defendants are residents of New York for jurisdictional purposes, plaintiffs ask this court to exercise jurisdiction over these defendants under the doctrine of pendent jurisdiction.1 Plaintiffs argue that there is no constitutional or statutory barrier to the assertion of jurisdiction and that the interests of judicial economy, convenience and fairness to the litigants support the result they seek. Defendant Kesten maintains that this court lacks subject matter jurisdiction over the claim against it for the following reasons: 1) diversity jurisdiction pursuant to 28 U.S.C. § 1332 is admittedly lacking; 2) while the doctrine of pendent jurisdiction allows assertion of related state claims, it is inapplicable to parties as to whom there exists no independent basis for jurisdiction.


While federal courts possess only limited jurisdiction, they have frequently adjudicated claims that extend beyond a given statutory grant of jurisdiction as ancillary to their resolution of the controversy within the specific grant. E.g. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Thus pendent jurisdiction has been accepted with regard to state claims factually related to the federal claim forming the predicate for jurisdiction. United Mine Workers v. Gibbs, supra.

The doctrine of pendent jurisdiction is not, however, without its limits. Especially unsettled is the status of the law with regard to pendent party jurisdiction to allow the plaintiff to assert state law claims against additional defendants over whom no independent predicate for jurisdiction exists.

As the Supreme Court has warned, before concluding that such pendent jurisdiction exists, the court must satisfy itself that Article III, Section 2 permits the exercise of jurisdiction and that Congress has not, by statute, negated its existence. Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976).

B. Supreme Court Cases

With these general principles serving as background, an analysis of the recent significant Supreme Court cases in this area is helpful.

United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) is the seminal case regarding pendent jurisdiction with respect to related state claims over which no independent predicate for jurisdiction exists. In Gibbs, the plaintiff brought an action in federal court against the union asserting a federal statutory claim and a state common law claim arising out of alleged concerted union activity intended to deprive him of his rights. Although the federal claim was ultimately dismissed, the Supreme Court recognized the power of the federal court to adopt a flexible treatment within the contours of Article III, Section 2 of the constitutional grant of jurisdiction and to adjudicate appended state claims. The Court held that the district court had jurisdiction, in the sense of "power" to adjudicate the claim, when the relationship between the federal claim and the state claim is such that the entire action can be said to comprise "one constitutional `case'." Gibbs, supra, 383 U.S. at 725, 86 S.Ct. at 1138. The Court noted that the claims must derive from a "common nucleus of operative fact" so that the plaintiff would ordinarily be expected to try the entire case in one forum. Ibid. Finally, the court held that the doctrine of pendent jurisdiction is "a doctrine of discretion, not of plaintiff's right" and focus must be on the considerations of "judicial economy, convenience and fairness to litigants" in determining whether it should be applied. Gibbs, supra, 383 U.S. at 726, 86 S.Ct. at 1139.2

Gibbs, then, stands for the proposition that as a matter of interpreting the constitutional grant of judicial power in Article III, when there is federal jurisdiction over parties who have federal and non-federal claims in dispute, the federal court has the power to adjudicate the non-federal portions of the parties' dispute. Gibbs did not involve an area in which Congress had spoken to the issue and hence no question of statutory construction was present. Nor did Gibbs involve the question of pendent party jurisdiction since all the parties were already before the court.

Three more recent Supreme Court cases have involved but not resolved the question of pendent party jurisdiction.

In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), a diversity class action, the Court held that multiple plaintiffs with separate and distinct claims must each satisfy the amount-in-controversy requirement. Rejecting application of principles of pendent jurisdiction, the Court held that the statute required dismissal of those litigants who do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke the jurisdiction of the federal court. 414 U.S. at 300, 94 S.Ct. at 511. The Court's analysis and holding in Zahn clearly involved statutory construction, not interpretation of the constitutional limits of the district court's jurisdiction. Construing "the `matter in controversy' requirement of § 1332," the Court reasoned that a contrary rule "would undermine the purpose and intent of Congress" in enacting the statute and upheld the "historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years." 414 U.S. at 301, 94 S.Ct. at 511.

In Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), the Supreme Court held that the district court had no jurisdiction to entertain plaintiff's claim against a third party defendant since diversity of citizenship was lacking and there was no independent basis for jurisdiction over the claim.3 The Court emphasized that while Gibbs addressed only the constitutional limits of federal judicial power, statutory law also imposed limits on federal court jurisdiction such that "constitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy." 437 U.S. at 372, 98 S.Ct. at 2401. Turning to the jurisdictional statute at issue, 28 U.S.C. § 1332(a)(1), the Court found that allowing suit under the circumstances before it would circumvent the complete diversity requirement. The Court took cognizance of the importance of the context in which the non-federal claim was asserted and noted factors to consider: 1) the separate or dependent nature of the additional claim, and 2) the plaintiff's choice in bringing suit in federal court. 437 U.S. at 376, 98 S.Ct. at 2403. The Court emphasized the importance of statutory considerations: "To allow the requirement of complete diversity to be circumvented as it was in this case would simply flout the congressional command." 437 U.S. at 377, 98 S.Ct. at 2404 (footnote omitted).

In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the Supreme Court held that, in a civil rights suit brought pursuant to 42 U.S.C. § 1983 on the jurisdictional base of 28 U.S.C. § 1343(3), the district court lacked jurisdiction over a state-law claim against a county which was immune to suit under § 1983 and as to which there was no independent basis for jurisdiction.4 The Court rejected arguments in favor of the exercise of pendent party jurisdiction in such suits.5 The holding was clearly premised on the Court's interpretation of congressional intent in granting jurisdiction to the district courts to redress deprivation of civil rights by these statutes: "Resolution of a claim of pendent-party jurisdiction, therefore, calls for careful attention to the relevant statutory language. As we have indicated, we think a fair reading of the language in § 1343,...

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    ...of paralled state regulations, but was a party not otherwise subject to federal jurisdiction. Similarly in DeBellas v. United States, 542 F.Supp. 999 (S.D.N.Y.1982), and in Maltais v. United States, 439 F.Supp. 540 (N.D.N.Y.1977), the courts assumed pendent party jurisdiction on the theory ......
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