Plaintiffs are a husband and wife whose complaint, filed on February 7, 1984, names four defendants whom plaintiffs contend administered or were responsible for the administering of improper and substandard medical care for an infection in plaintiff husband's left knee. Plaintiffs and the two individual defendants, Pfautz and Bernard I. Zeliger, also a physician, appear to be Pennsylvania residents. Community General Osteopathic Hospital, where plaintiff husband received treatment is located in Harrisburg, Pennsylvania. The remaining defendant, the United States, has been brought in as a result of treatment plaintiff received at two Veterans Administration hospitals, located in Lebanon and Philadelphia, Pennsylvania.
Plaintiff has alleged that jurisdiction over defendant United States exists pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. Jurisdiction over the other defendants is alleged to be ancillary or pendent. Counts I and II of the complaint are directed to Pfautz, Zeliger, and the hospital. Counts III and IV set forth claims against the United States.1
III. The Dismissal Motion
The basis of the dismissal motion filed in the present action is the pendent jurisdiction doctrine. More specifically the issue is one of whether pendent party jurisdiction should be exercised in the present matter so that plaintiff's claim against Pfautz, a non-diverse defendant against whom no federal claim has been made, may be tried along with the claim against the United States under the FTCA. As has long been recognized, the federal courts are tribunals of limited jurisdiction and the general rule is that their authority to adjudicate matters is limited to that found either in Article III of the United States Constitution or congressional enactments. No doubt exists in the present case that jurisdiction over the United States has been properly invoked under the FTCA. Jurisdiction over Pfautz, however, turns on the issue of pendent party jurisdiction.
The landmark case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) elucidated the concept of pendent jurisdiction but concentrated largely on the propriety of joining state and federal claims rather than joining parties over whom federal jurisdiction exists with those parties over whom there is no independent jurisdictional basis. The Gibbs Court stated,
The federal claim must have substance sufficient to confer subject matter jurisdiction on the court citation omitted. The state and federal claims must derive from a common nucleus of operative fact. But 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, then, assuming substantiality of the federal issues there is power in federal courts to hear the whole footnote omitted.
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right footnote omitted. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them citation omitted....
Id. at 725-26, 86 S.Ct. at 1138-39, 16 L.Ed.2d at 227-28. Following the pronouncements in the Gibbs case, pendent jurisdiction was increasingly exercised by federal courts. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) and Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), the Supreme Court addressed pendent party jurisdiction. In Aldinger the Court had occasion to address the Gibbs case, to determine exactly what Gibbs did and did not decide, and to identify differences between pendent jurisdiction over claims as distinguished from parties. Although dealing with and declining pendent party jurisdiction in the context of a claim brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, Justice Rehnquist, writing for the six member Gibbs majority, did recognize the existence of situations other than that before the court and noted,
Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 USC § 1346 28 USCS § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together footnote omitted. As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is "subtle and complex," and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be impleaded is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Article III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.
427 U.S. at 18, 96 S.Ct. at 2422, 49 L.Ed.2d at 288-89.
In Owen the question answered in the negative by the Supreme Court was whether in a diversity case a plaintiff could assert a claim against a third party defendant over whom no independent basis for federal jurisdiction existed. The facts and procedural background in Owen are clearly distinguishable from the matter before us, however, since Owen was a wrongful death case initiated under Iowa state law. Nevertheless, the analysis utilized is relevant to the proper disposition of the matter before us. As the Court noted,
The nonfederal claim ... was asserted by the plaintiff, who voluntarily chose to bring suit upon a state-law claim in a federal court.... A plaintiff cannot complain if ancillary jurisdiction does not encompass all of his possible claims in a case such as this one, since it is he who has chosen the federal rather than the state forum and must thus accept its limitations....
437 U.S. at 376, 98 S.Ct. at 2404, 57 L.Ed.2d at 284.
The problem, of course, is that in the present case plaintiffs had to bring their FTCA action in federal court. Thus, plaintiffs have argued on the basis of Gibbs, supra, and its brief discussion of tort matters that only in a federal court could all of plaintiffs' case be tried together. Plaintiffs and defendant Pfautz recognize the division among the circuits with regard to pendent party jurisdiction, a division that ranges from wholesale rejection of the concept in the Ninth Circuit, see, e.g., Ayala v. United States, 550 F.2d 1196 (9th Cir.1977), to consideration of the concept when the anchor claim involves an exclusive grant of federal jurisdiction, see, e.g., Stewart v. United States, 716 F.2d 755 (10th Cir.1982); Ortiz v. United States, 595 F.2d 65 (1st Cir.1979).
We have read with particular interest the Ortiz and Stewart cases, supra, and also Lamb v. United States, 526 F.Supp. 1117 (M.D.Ga.1981) because both cases arose under the FTCA, the statute that forms the jurisdictional threshold of the matters now before us. In Ortiz, plaintiffs brought suit against the United States for the alleged negligence of a Veterans Administration hospital at which plaintiffs' decedent had been treated. Pursuant to 28 U.S.C. § 1345, the United States brought in a private hospital as a third party defendant, and plaintiffs thereafter unsuccessfully sought to amend their complaint to add a negligence count against the private institution. On an interlocutory appeal, the United States Court of Appeals for the First Circuit reversed the district court's holding that it lacked power to exercise ancillary or pendent jurisdiction and held that no statutory bar existed to preclude the exercise of such jurisdiction. The court concluded, however, by stating,
We leave it for the district court ... to decide on remand whether in this case there is sufficient compliance with the Gibbs criteria to meet Article III requirements. If the court should so find, it should then decide, as a matter of sound discretion, whether it is advisable for it to exercise its power over the nonfederal claim citation omitted.
Id. at 73.
The Stewart court, although dealing with a different factual context than the one facing us, concluded that pendent pa...
