Rundle v. Madigan

• Decision Date: 30 August 1971
• Docket Number: No. C-70 334.,C-70 334.
• Citation: 331 F. Supp. 492
• Court: U.S. District Court — Northern District of California
• Parties: William Donovan RUNDLE, Jr., etc., et al., Plaintiffs, v. Frank I. MADIGAN et al., Defendants.

331 F. Supp. 492

William Donovan RUNDLE, Jr., etc., et al., Plaintiffs, v. Frank I. MADIGAN et al., Defendants.

No. C-70 334.

United States District Court, N. D. California.

August 30, 1971.

Richards, Watson & Dreyfuss, Los Angeles, Cal., for plaintiffs.

Crosby, Heafey, Roach & May, P. C., Oakland, Cal., for defendants.

MEMORANDUM AND ORDER AFFIRMING PRIOR ORDERS GRANTING DEFENDANT COUNTY OF ALAMEDA'S MOTION TO DISMISS

PECKHAM, District Judge.

This case is one of several related civil rights actions stemming from what has become known as the "People's Park" controversy. Plaintiff claims that his federal civil rights were violated by a conspiracy among the defendants — the Sheriff and various deputies of Alameda County — to utilize unlawful force in suppressing an assembly of persons in the streets of Berkeley, California, on May 15, 1969, and by the unlawful shot-gun shooting of plaintiff on that day. Claims based upon state law are also asserted.

In an earlier order, this court granted the defendant County of Alameda's motion to dismiss on the ground that it was not amenable to suit under the Civil Rights Act since it was not a "person" within the meaning of that Act. 42 U. S.C. § 1983. This was undoubtedly a correct statement of the law, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961), and plaintiff does not presently dispute this.

The Court also ordered that the state claims be dismissed as to the County. It is this latter order which plaintiff now seeks to reverse.

The basis for this motion for reconsideration is that the state claims against the County should be retained in this action on the theory of pendent jurisdiction. More precisely, plaintiff argues that this court need not have an independent basis of federal subject matter jurisdiction as to the County, provided that the court has subject matter jurisdiction as to the other defendants, and provided further that the facts which underlie the state cause of action against the County are essentially the same as those which underlie the federal cause of action against the other defendants. Plaintiff further argues that the County has waived any objections to the assertion of personal jurisdiction over it; that in fact a good state cause of action can be predicated against the County on the basis of the California Tort Claims Act (Cal.Govt.Code § 815.2); and that nothing in the Civil Rights Act or Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L.Ed.2d 492 (1961), precludes this court from recognizing a state cause of action against a County where the underlying liability of the county is based upon a Civil Rights Act violation by a county employee.

The defendant County basically and simply argues that the doctrine of pendent jurisdiction is not applicable unless the federal claim and the state claim are asserted against the same party. That is, the doctrine cannot be employed to bring in additional parties as to which the court does not have an independent basis of federal subject matter jurisdiction.

While plaintiff has skillfully briefed many interesting arguments, the court concludes that at least within the Ninth Circuit, the defendant County is correct that pendent jurisdiction is not available in the circumstances of this case. Accordingly, the court does not reach plaintiff's other contentions.

The controlling point is that in the Ninth Circuit, pendent jurisdiction is available only to join claims, not to join parties. Hymer v. Chai, 407 F. 2d 136 (1969). That is, the concept applies "only where the same parties are involved on the state and federal claims." Wright, Federal Courts (2nd Ed. 1970), at 65. Since there is no federal claim alleged against the County, no state claim against the County is within the pendent jurisdiction of this court, no matter how closely related factually that state claim may be to a federal claim against another defendant. On this view of the doctrine — viz. that the doctrine is simply not available — this court is devoid of the power to adjudicate the state claim against the County; the issue is not one of discretion. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

In Hymer v. Chai, supra, a husband and wife brought a personal injury diversity action in the United States District Court for Hawaii. The husband sought $75,000 damages for personal injuries and property damage, while the wife sued for loss of consortium. The wife claimed only $7,500, an amount below the monetary minimum necessary to sustain federal diversity jurisdiction (28 U.S.C. § 1332(a)). Diversity of citizenship was the only possible basis for federal jurisdiction.

The Ninth Circuit ruled that the District Court had erroneously assumed jurisdiction of the wife's cause of action, since that cause of action was not independently federally cognizable, and since joinder of an additional party was not the object of the doctrine of pendent jurisdiction.

Plaintiff seeks to avoid the impact of Hymer by arguing that Hymer is distinguishable from the present case and that, in any event, Hymer is questionable as a valid proposition of law. Dealing with the latter point first, it is true that Hymer relied heavily on a case which long ante-dated the Gibbs decision, viz. Takashi Kataoka v. May Dep't Stores Co., 115 F.2d 521 (Ninth Cir. 1940). It is also true that other circuits have permitted the application of pendent jurisdiction in factual situations essentially indistinguishable from that of Hymer. See Stone v. Stone, 405 F.2d 94 (Fourth Cir. 1968); Jacobson v. Atlantic City Hospital, 392 F.2d 149 (Third Cir. 1968); Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809 (Eighth Cir. 1969). The short and authoritative answer to plaintiff's latter contention is that whether or not the Ninth Circuit's position in Hymer v. Chai represents a dying view, that position was firmly stated and is binding on this court.

Whether Hymer is significantly distinguishable from the present case, however, is a question to which this court may properly address itself. In Hymer the court refused to allow the joinder of an additional party plaintiff who could not assert a federally cognizable claim against the defendant. In this case, however, the issue is whether to allow the joinder of a defendant against whom the plaintiff cannot state a federally cognizable claim. Further, in Hymer the jurisdiction of the court was based upon diversity of citizenship, whereas in this case, the court's jurisdiction rests upon a federal question.

This court's first response to this argument is that in an analysis of pendent jurisdiction, it is not particularly relevant to inquire whether the assertion of pendent jurisdiction will enable an additional plaintiff or defendant to be joined. The basic inquiry in this regard is whether the doctrine may be employed to allow the joinder of any party who could not otherwise be in a federal court. And on this point, Hymer v. Chai speaks quite directly: "Joinder of claims, not joinder of parties, is the object of the doctrine." 407 F.2d at 137.

If, however, it is relevant to inquire whether a plaintiff or defendant will be the party joined, the joinder of a plaintiff is the more permissible and acceptable result, since this does not force an unwilling party into a federal forum, as is the case where an additional defendant is joined. To put the matter another way, if in Hymer v. Chai the wife had been permitted to assert her claim for loss of consortium, no great hardship would have been placed upon the defendant, since the defendant was already in the federal forum. Here, however, the state claims would serve to bring into federal court a defendant who would not otherwise be there. Thus, since the court in Hymer did not allow the doctrine of pendent jurisdiction to operate where its effect would have been to join an additional plaintiff, Hymer v. Chai counsels strongly against employing the doctrine where an additional defendant would be joined.¹

As noted, another difference between Hymer and the present case is that Hymer was a diversity case whereas this one is a federal question case. On this point, the Fourth Circuit has stated that both instances should be treated similarly because "in each situation, the federal court has before it a claim which clearly satisfies the requirements of § 1331 or § 1332, and in each instance the plaintiff asserts an additional claim which, if litigated alone, would not satisfy a jurisdictional requirement." Stone v. Stone, 405 F.2d 94, 97 (1968). If this position is accepted, then Hymer v. Chai would be apposite in the present case and would defeat plaintiff's motion.

If, however, federal question and diversity cases are to be treated differently, then a stronger case can probably be made for the application of the pendent jurisdiction doctrine, (where its effect is to bring in an additional party), in the diversity context than in the federal question context. Significantly, in those cases where this question has been considered, "pendent parties"² have recently been permitted in the diversity cases, but disallowed in the federal question cases.³ One factor apparently underlying this differential treatment is that in a diversity situation, the claims are all based upon state law, and so one would expect them to be litigated together. In the federal question case, however, if the federal jurisdiction is exclusive, then one would not expect the claims to be bundled together in the same forum. See Tucker v. Shaw, 308 F.Supp. 1, 9 (E.D.N.Y.1970).⁴

Probably the most influential factor, however, has been that in the diversity cases where "pendent parties" have been permitted, the courts have generally been confronted with claims by members of a single family arising out of a single accident. See Wright, Federal Courts (2nd Ed. 1970) at 124, and cases cited therein at n. 19. The litigation of these intimately related claims in a...