Jacobs v. United States

• Decision Date: 20 March 1973
• Docket Number: Civ. No. 72-243 Phx. CAM.
• Citation: 367 F. Supp. 1275
• Parties: Billie Jo JACOBS, surviving wife, on behalf of herself and the surviving children, et al., Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

367 F. Supp. 1275

Billie Jo JACOBS, surviving wife, on behalf of herself and the surviving children, et al., Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. No. 72-243 Phx. CAM.

United States District Court, D. Arizona.

March 20, 1973.

COPYRIGHT MATERIAL OMITTED

Chandler, Tullar, Udall & Richmond, Tucson, Ariz., Kreindler & Kreindler, New York City, for plaintiff.

William C. Smitherman, U. S. Atty., Phoenix, Ariz., for the United States.

Mills, Shirley, McMicken & Eckel, John McEldowney, Galveston, Tex., for defendant Webb Thomas Aircraft Sales, Inc.

OPINION^* AND ORDER

COPPLE, District Judge.

This action was commenced under the Federal Tort Claims Act, and jurisdiction rests on 28 U.S.C. §§ 2671-2680, 1346(b). The United States is the only defendant. Plaintiff now moves to file an amended complaint adding Apache Airlines, Inc., operator (but not owner) of the airplane whose crash is the cause of suit, as a party defendant. Plaintiff and Apache are both citizens of Arizona. Since no diversity jurisdiction exists, plaintiff alleges that the court has pendent jurisdiction over Apache. Traditionally, that term has had a special definition.

The pendent jurisdiction concept applies only where the same parties are involved on the state and federal claims. It does not permit bringing in an additional party to respond to a state claim on the ground that that claim is closely related to the federal claim against an existing party.

C. Wright, Handbook of the Law of Federal Courts § 19, at 65 (2d ed. 1970). It is true that a doctrine of "pendent parties" has been suggested since United Mine Workers v. Gibbs, 383 U.S. 715, 722, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Note, UMW v. Gibbs and Pendent Jurisdiction, 81 HARV.L.REV. 657, 662-64 (1968). But that view may confuse the semantic distinctions of the earlier cases. "Pendent jurisdiction is a specialized application of the ancillary jurisdiction concept . . . . Its application traditionally has been in situations in which plaintiff seeks to append a nonfederal claim to a substantial claim against the same defendant." 7 C. Wright & A. Miller, Federal Practice & Procedure § 1659, at 314 (1972) (emphasis added). Ancillary jurisdiction is the broader concept allowing a court to acquire control of an entire controversy — both the claims and additional parties — where it has no independent jurisdiction of one or more parties. See id. at 312-13. If jurisdiction exists to join Apache, then it is under the rules of the more encompassing doctrine.¹

JOINDER WITH THE UNITED STATES

This Court has jurisdiction of the claim against the United States by virtue of 28 U.S.C. § 1346(b); it has no independent jurisdiction — diversity or federal question — of that against Apache Airlines. Were the party to be joined an employee or agent of the government, for whose tort the United States is liable by respondeat superior, joinder might be prohibited.² United States v. Dooley, 231 F.2d 423 (9th Cir. 1955); Benbow v. Wolf, 217 F.2d 203 (9th Cir. 1954); see Williams v. United States, 405 F.2d 951 (9th Cir. 1969) (no pendent jurisdiction); Sykes v. United States, 290 F.2d 555 (9th Cir. 1961); Pacific Freight Lines v. United States, 239 F.2d 191 (9th Cir. 1956); 28 U.S.C. §§ 2676, 2679(b). Here, Apache is attempted to be joined as a joint or otherwise related tortfeasor. No special federal rule of tort theory controls that question, but rather the rules controlling all federal litigation apply. United States v. Yellow Cab Co., 340 U.S. 543, 550-54 & nn. 8 & 10, 71 S.Ct. 399, 404-06 & nn. 8 & 10, 95 L.Ed. 523 (1951); see United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).

There are a number of ways in which a new party could be introduced into litigation over which the court already has jurisdiction. Fed.R.Civ.P. 14, 19, 20, 24. Unfortunately, the courts seem to have created different rules for differing procedural modes of joinder, resulting in a certain confusion as to the true boundaries of ancillary jurisdiction. See Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27 (1963). The general rule is easy enough to state:

The doctrine of ancillary jurisdiction is premised on the notion that a court acquires jurisdiction over a case or controversy in its entirety and that the court possesses jurisdiction to determine all ancillary and incidental issues raised in the course of disposing of a case properly before it, even though it would have lacked jurisdiction over them had they been interposed in an independent action. Thus, when a federal court has subject matter jurisdiction over a case, it will resolve any ancillary proceeding, regardless of the citizenship of the parties, the amount in question, or any other factor that ordinarily would deprive the court of subject matter jurisdiction.

7 C. Wright & A. Miller, supra, § 1659, at 313. The fact that jurisdiction exists by virtue of consent to suit by the United States is no bar to joining Apache as a party defendant. International Mort. & Inv. Corp. v. Von Clem, 301 F.2d 857 (2d Cir. 1962); 7A C. Wright & A. Miller, supra, § 1917, at 606. But substantial problems arise when the general rule is placed against restrictions on avoiding the jurisdictional requirements. As Wright and Miller note, the result is a series of anomalies. See 7 id. § 1610.

It is clear that a party who may be only permissively joined under rule 20 is not one subject to ancillary jurisdiction. Nor should he be. The doctrine is designed to facilitate the complete adjudication of a controversy, not to allow litigation on the mere basis that a common question of law or fact is involved. The discretion under that rule to deny joinder or to order severance of trial is itself an indication that the Court should not strain to obtain jurisdiction where it does not otherwise exist. See C. Wright, Handbook of the Law of Federal Courts § 9 (2d ed. 1970). Some stronger interest in having the party in the case, and a stronger showing of judicial economy, must be made.

Here, Apache meets the criteria for intervention of right, or for compulsory joinder.³ Fed.R.Civ.P. 19(a), 24(a). The United States is sought to be charged on the ground that it issued an air-worthiness certificate for the crashed plane when it was in fact unsafe, and that this negligence was a proximate cause of the crash and plaintiff's decedent's death. In its proposed amended complaint, plaintiff would prove that "Apache was negligent in the operation, maintenance, repair, control, certification, loading and/or inspection of the aircraft." Those claims not only involve common questions of law and fact, but leave Apache "so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede its ability to protect its interest." For example,⁴ if the decision were that the United States had performed adequate investigation before granting the certificate, and that the airplane was soundly constructed, there can be no doubt that Apache's reliance on an intervening cause defense would be seriously impaired. Conversely, it might be that improper certification of a defective aircraft would be found, and depending partially on the extent to which Apache was involved in the certification, it might also be implicated in failing to discover or to cure the defect.

This is not a case in which joinder would destroy the jurisdiction of the court by destroying diversity. Whether Apache is in or out of this action the Court has federal question jurisdiction. Furthermore, there is no doubt that considerable savings of judicial energy will result. The United States cannot be sued in state court; if jurisdiction over Apache is refused, the case must be tried twice in separate forums.

Some cases have held that joinder is not possible under the Tort Claims Act.⁵ E. g., Guthrie v. United States, 238 F. Supp. 855 (E.D.Wisc.1965); Sappington v. Prencipe, 87 F.Supp. 357 (D.D.C. 1948); Uarte v. United States, 7 F.R.D. 705 (S.D.Cal.1948). Such cases rest generally on distinguishable theories. Those relating to bars against joining the government's employee are statutorily excepted. 28 U.S.C. §§ 2676, 2679(b). The dicta and holdings that joint tortfeasors or other related parties not employees may not be joined are based either on the discredited notion that "strict reading" of the act fails to show permission to join them, or that they were not "necessary" parties. See United States v. Yellow Cab Co., supra. The modern cases are in accord with joinder. Darnell v. Starks, 258 F.Supp. 31 (D.Ore.1966) (court had jurisdiction over nongovernment-driver claim); Van Dorn v. Huffman, 221 F.Supp. 285 (E. D.Ill.1963); see Davis v. United States, 350 F.Supp. 206 (E.D.Mich.1972) (court had pendent jurisdiction of plaintiff's claim against nondiverse third-party defendant).

As the court's basic jurisdiction is not affected by joinder, as Apache meets the criteria of parties to be joined under rule 19(a), and as substantial savings of judicial energy are indicated by joinder, there are sufficient grounds for this Court taking ancillary jurisdiction of the claim against Apache.

DIVERSITY CONSIDERATIONS

The Court would be blind to reality were it not to consider one additional factor before concluding to join Apache Airlines. While it is true that the present action includes only the United States, there are other actions in this court arising out of the same nucleus of operative fact that are based on diversity. Consolidation of those actions with the present one for discovery and trial is a distinct possibility; indeed the parties have so suggested.⁶ The present plaintiff has sued the remaining, diverse defendants. Jacobs v. Comet Steel Co., No. CIV-73-35-PHX-WPC (D.Ariz., filed Jan. 18, 1973). Suits by other plaintiffs have been filed.⁷ The eventual result hoped for by counsel for all parties is to try the matter of this...