Stewart v. U.S.

• Decision Date: 28 December 1982
• Docket Number: No. 80-1329,80-1329
• Parties: Leroy STEWART, Plaintiff-Appellant, v. UNITED STATES of America, Gary D. Nuss, and Rockwell International Corporation, a Delaware Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 755

716 F.2d 755

Leroy STEWART, Plaintiff-Appellant, v. UNITED STATES of America, Gary D. Nuss, and Rockwell International Corporation, a Delaware Corporation Defendants-Appellees.

No. 80-1329.

United States Court of Appeals, Tenth Circuit.

Dec. 28, 1982.

Rehearing Pending.

Richard M. Borchers, Westminster, Colo. (John E. Joslin, Kansas City, Mo., was on the brief), for plaintiff-appellant.

James E. Elliott, Jr., Denver, Colo. (Elliott, Martinez & Allman, Denver, Colo., was on the brief), for defendants-appellees Rockwell Inter. Corp. and Gary D. Nuss.

Jake J. Chavez, Asst. U.S. Atty., Denver, Colo. (Joseph F. Dolan, U.S. Atty. and Donald M. Hoerl, Asst. U.S. Atty., Denver, Colo., and Jan Elizabeth Mitchell, U.S. Dept. of Energy, Albuquerque, N.M., were on the brief), for defendant-appellee United States of America.

Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

In this suit brought against the United States under the Federal Tort Claims Act (FTCA), plaintiff-appellant Leroy Stewart appeals a dismissal as to the defendant United States and a summary judgment granted for defendants Gary Nuss (Nuss) and Rockwell International Corporation (Rockwell), also named as defendants. Plaintiff seeks damages for personal injuries incurred in a parking lot accident at the Rocky Flats nuclear weapons facility in Colorado, owned by United States and operated by Rockwell, charging negligence against all defendants. The injury is alleged to have occurred on May 20, 1976, when plaintiff was struck, while exiting his car in the parking lot on arrival for work, by a Government vehicle driven by Nuss, who was on a security patrol.

I

Plaintiff originally sought relief solely against the United States under the FTCA, 28 U.S.C. Sec. 2671 et seq. and 28 U.S.C Sec. 1346(b). His amended complaint also named Rockwell and Nuss as defendants. The amended complaint asserted jurisdiction pursuant to the FTCA. It also claimed diversity jurisdiction as to Rockwell and pendent jurisdiction as to Nuss. Defendants have not challenged subject matter jurisdiction as to any of the claims except by a formal denial earlier in the answer of Rockwell and Nuss of pendent jurisdiction as to Nuss. (See note 2, infra).

However as we must, we note that there is a question as to whether pendent jurisdiction is proper as to a non-diverse party such as Nuss. See, e.g., Ayala v. United States, 550 F.2d 1196 (9th Cir.). Moreover, we have also noted, sua sponte, that the amended complaint failed to aver the principal place of business of Rockwell, which prevented reliance on diversity jurisdiction as to the corporation at that point. American Motorists Ins. Co. v. American Employers' Ins. Co., 600 F.2d 15 (5th Cir.); Walsh v. International Precious Metals Corp., 510 F.Supp. 867, 873 (D.Utah); see Fed.R.Civ.Proc., 8(a)(1) (requiring a short and plain statement of grounds of jurisdiction). We requested supplemental briefing from the parties on the question of whether there was proper subject matter jurisdiction of the claims against Rockwell and Nuss. The supplemental brief of Rockwell and Nuss noted that Rockwell's diversity of citizenship was never questioned below and suggested that Rockwell be treated as diverse. Rockwell's supplemental brief included an affidavit stating that its principal place of business is in Pennsylvania. The Government submitted a statement on jurisdiction which adopted the position of Rockwell and Nuss. On consideration of the supplemental briefs, the affidavit and the Government's statement, we will treat the matter as an unopposed motion to amend the complaint to cure the defective diversity allegation as to Rockwell, which we grant. 28 U.S.C.A. Sec. 1653; 3 Moore's Federal Practice p 15.11 (2d ed. 1982).

The question remains whether there is proper subject matter jurisdiction of the claim against Nuss as a matter of pendent jurisdiction. By their supplemental statements on jurisdiction, filed by the parties at the direction of the court, all the parties take the position that the district court properly exercised pendent jurisdiction over Nuss. The question is, however, "subtle and complex," Aldinger v. Howard, 427 U.S. 1, 2, 96 S.Ct. 2413, 2414, 49 L.Ed.2d 276 and we feel we must note and carefully decide it because it touches on constitutional and statutory foundations of jurisdiction.

Jurisdiction of the claim as to Nuss involves more than just the assertion of two claims, one federal and one non-federal, in litigation between the same parties plaintiff and defendant. E.g. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The assertion of a separate claim arising out of the same operative facts concerning conduct of the same parties, but as a pendent claim against an added party, implicates the so-called "pendent party" problem where jurisdiction was held lacking as to the pendent party in Ayala v. United States, 550 F.2d 1196 (9th Cir.), in an FTCA case. The problem involves both Article III constitutional power and the statutory basis for such jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276.

We note that plaintiff's complaint is based on the single accident in the Rocky Flats parking lot. Further, the claim against the United States under the FTCA properly invoked the subject matter jurisdiction conferred by that Act exclusively on the federal district courts. And we are satisfied that the claim asserted under the FTCA has sufficient substance so that it was proper to invoke that jurisdictional grant. To these circumstances we apply the guidelines laid down in Gibbs which are instructive here in deciding the pendent party question:

Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...," U.S.Const., Art. III, Sec. 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 [53 S.Ct. 549, 77 L.Ed. 1062]. 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. 383 U.S. at 725, 86 S.Ct. at 1138. (emphases in original) (footnotes omitted).

We are persuaded that under these concepts subject matter jurisdiction of the claim against Nuss exists, pendent to that of the claim under the FTCA against the Government, in accord with the constraints of Article III. Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023, 1024 n. 1 (5th Cir.), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455; Johnston, et al., v. United States, et al., 546 F.Supp. 879, (D.Kan.); Dumansky v. United States, 486 F.Supp. 1078, 1086-89 (D.N.J.); Pearce v. United States, 450 F.Supp. 613, 619 (D.Kan.); Maltais v. United States, 439 F.Supp. 540, 547 (N.D.N.Y.); cf. Florida East Coast Railway Co. v. United States, 519 F.2d 1184 (5th Cir.); Transok Pipeline Co. v. Darks, 565 F.2d 1150, 1154-55 (10th Cir.), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388; State of New Mexico v. Molybdenum Corp. of America, 570 F.2d 1364, 1367 (10th Cir.). Contra, Kack v. United States, 570 F.2d 754 (8th Cir.); Ayala v. United States, 550 F.2d 1196 (9th Cir.), cert. dismissed per stip., 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76; Falk v. United States, 264 F.2d 238 (6th Cir.). While Aldinger rejected pendent party jurisdiction in the context of a claim principally asserted under Sec. 1983, the Court noted that different considerations apply where there is a case like this one under the FTCA which confers exclusive jurisdiction on the federal courts ¹:

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 U.S.C. Sec. 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....

427 U.S. at 18, 96 S.Ct. at 2422 (emphasis in original).

Moreover, we find no congressional disapproval of the exercise of such pendent party jurisdiction in the FTCA. The waiver of immunity, granting jurisdiction to the federal district courts of such tort suits against the Government, was made in "sweeping language." United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523. Moreover the grant of jurisdiction was made exclusively to the federal courts. Thus there is no indication that Congress declined to extend federal jurisdiction over such a pendent party as was the case in Aldinger. See 427 U.S. at 16-19, 96 S.Ct. at 2421-23.

We hold, therefore, that subject matter jurisdiction in the district court existed of the claim against Nuss as one over which the district court properly exercised jurisdiction, pendent to the claim against the Government under the FTCA over which the federal court has exclusive jurisdiction. ²

II

Most of the facts concerning the accident and the workmen's compensation defenses are undisputed and can be stated briefly.

On the morning of May 20, 1976, plaintiff left for work and picked up two co-employees who shared a car pool with him. Plaintiff's employment at this time was as a probe and cable fabricator....