United States v. Tabor, Court No. 84-9-01327.

CourtU.S. Court of International Trade
Writing for the CourtRESTANI
Citation9 CIT 233,608 F. Supp. 658
PartiesThe UNITED STATES, Plaintiff, v. Christopher C. TABOR, et al., Defendants.
Docket NumberCourt No. 84-9-01327.
Decision Date03 May 1985

608 F. Supp. 658
9 CIT 233

The UNITED STATES, Plaintiff,
Christopher C. TABOR, et al., Defendants.

Court No. 84-9-01327.

United States Court of International Trade.

May 3, 1985.

608 F. Supp. 659

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, A. David Lafer and Francis J. Sailer, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Brownstein, Zeidman and Schomer, Washington, D.C. (Steven P. Kersner and Paul S. Davidson, Washington, D.C.) and Zachry, Kearney, Hill, Shaw & Beatty, Tom L. Zachry, Fort Worth, Tex., for defendants.

Opinion and Order


Plaintiff filed suit in this court on September 27, 1984, pursuant to § 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (1982), alleging that defendants attempted to import into the United States an improperly equipped 1983 Porsche automobile from the Federal Republic of Germany. Plaintiff seeks both an in personam penalty equal to the domestic value of the automobile (alleged to be $52,159.00 plus interest) and an in rem civil forfeiture of the automobile. The automobile was seized by the United States Customs Service ("Customs") on August 11, 1983. Following administrative proceedings which resulted in a mitigated penalty decision on July 5, 1984, and pursuant to defendant Tabor's request of July 13, 1984, this matter was referred to the United States Attorney or the Department of Justice for judicial proceedings. The automobile remains in Customs' possession.

This matter is before the court on defendants' motion to dismiss and to quash the warrant for arrest of the automobile and on plaintiff's motion, pursuant to Court of International Trade Rule 15(a), to amend the complaint. The court will address plaintiff's motion first.

Plaintiff seeks to allege an additional basis for civil in rem forfeiture pursuant to 18 U.S.C. § 545 (1982).1 Plaintiff asserts

608 F. Supp. 660
that this court can and should exercise jurisdiction over § 545 forfeiture actions when they are brought in conjunction with related § 592 penalty proceedings. Jurisdiction over federal civil forfeiture actions lies generally with the district courts. 28 U.S.C. § 1355 (1982).2 The district court's jurisdiction in these actions, however, does not include matters within the jurisdiction of this court under 28 U.S.C. § 1582 (1982). 28 U.S.C. § 1355. Section 1582 grants exclusive jurisdiction to this court of "any civil action which arises out of an import transaction and which is commenced by the United States — to recover a civil penalty under section 592 ... of the Tariff Act of 1930...."3 Therefore, plaintiff relies on the non-statutory ground of pendent jurisdiction to bring its § 545 civil forfeiture claim before this court

"Pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Network Project v. Corporation for Public Broadcasting, 561 F.2d 963, 970 (D.C.Cir.1977), cert. denied, 434 U.S. 1068, 98 S.Ct. 1247, 55 L.Ed.2d 770 (1978). Such discretion, however, is not left to the court's "inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Albermarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975), quoting United States v. Burr, 25 F.Cas. 30, 35 (C.C.Va.1807) (No. 14,692d) (Marshall, C.J.). The doctrine of pendent jurisdiction is most commonly applicable to federal courts' exercise of jurisdiction over causes of action which normally are decided by state courts. In a case involving a "substantial" claim arising under federal law, the district court has power to entertain a separate cause of action between the same parties based on state law, provided that the state and federal claims "derive from a common nucleus of operative fact" and are sufficiently related so that plaintiff

608 F. Supp. 661
would "ordinarily be expected to try both claims in one judicial proceeding...." Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138

As indicated, exercise of pendent jurisdiction is a discretionary matter and "involvement of federal law in a pendent claim is a factor significantly affecting the proper exercise of that discretion." Network, 561 F.2d at 971. See also Hagans v. Lavine, 415 U.S. 528, 548, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974); Rosado v. Wyman, 397 U.S. 397, 425, 90 S.Ct. 1207, 1224, 25 L.Ed.2d 442 (1974) (Douglas, J., concurring); 13 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3567 (1984). In Network, the appeals court reversed the district court's decision not to exercise pendent jurisdiction over a state court claim involving federal law because the lower court's "decision was unresponsive to the considerations that govern the exercise of pendent jurisdiction when the pendent claim invokes federal law." Network, 561 F.2d at 971. Absent regard for such considerations and because the court of appeals perceived nothing out of the ordinary that justified a refusal of pendent jurisdiction, the district court was held to have abused its discretion. That case does not hold, as defendant implies, that it is necessarily an abuse of discretion for a federal court to refuse to exercise pendent jurisdiction over a claim involving federal law. Instead, it holds that the fact that the claim without an independent federal jurisdictional basis is one grounded in federal law should weigh in favor of exercising pendent jurisdiction. See, e.g., Hagans, 415 U.S. at 548, 94 S.Ct. at 1385; Rosado, 397 U.S. at 425, 90 S.Ct. at 1224.

Plaintiff cites several cases for the proposition that one federal court may assume jurisdiction over matters otherwise within the jurisdiction of another federal court. They are Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960), Rosado, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) and Lefson v. Esperdy, 211 F.Supp. 769 (S.D.N.Y.1962). First, neither Romero nor Rosado clearly involves the jurisdiction of two federal courts. Both involve claims based on federal law which may be heard in state courts. (To the extent Romero involves pendent admiralty jurisdiction it is so narrow as to have little meaning beyond the facts of the case.) Second, the remaining two cases fail to establish plaintiff's claim that it is appropriate for the CIT to exercise pendent jurisdiction over a § 545 claim. Florida Lime, because it involved an action to enjoin a state statute's enforcement on federal grounds, was heard by a panel of three federal judges. The Florida Lime court held that the three-judge panel also had jurisdiction over other federal statutory claims which would normally be heard by a single district court judge. It is unclear whether the court in Florida Lime grounded the three-judge court's jurisdiction over such claims on pendent jurisdiction principles or solely on Congress' intent with regard to the statute requiring a three-judge panel. Florida Lime, 362 U.S. at 85, 80 S.Ct. at 575. Lefson, a district court case, involved one claim which was exclusively in the jurisdiction of the appeals court and another which ordinarily would be within the district court's jurisdiction. The district court transferred both claims to the appeals court in order for the appeals court to consider pendent jurisdiction over the claim which was originally before the district court. In Lefson, because there is no appellate opinion, there is no evidence that the appeals court exercised pendent jurisdiction. Cf. Thompson Tower Ltd. Dividend Housing Association v. United States, 228 Ct.Cl. 766, 771 (1981), citing Berdick v. United States, 222 Ct.Cl. 94, 612 F.2d 533 (1979) (transfer does not confer jurisdiction on the transferee court). Therefore, Lefson stands only for the proposition that the district court could not hear a claim which was within the exclusive jurisdiction of the court of appeals.

608 F. Supp. 662

Plaintiff first argues that since the district court's jurisdiction over § 545 claims is not exclusive4 and since jurisdiction over § 592 claims is exclusively in this court, judicial economy compels the exercise of pendent jurisdiction by this court over § 545 actions. Judicial economy, however, is not necessarily an adequate basis for the exercise of pendent jurisdiction. Judicial economy is but one factor to be considered. See Gibbs, 383 U.S. at 725-26, 86 S.Ct. at 1138-39. In United States v. Gold Mountain Coffee, Ltd., 8 C.I.T. ___, 597 F.Supp. 510, reh'g denied, 601 F.Supp. 212 (1984), this court discussed the closely related concept of ancillary jurisdiction, which plaintiff there sought to invoke regarding its § 545 claims.5 The court noted, among other factors to be considered before asserting ancillary jurisdiction over federal claims, the necessity of such jurisdiction to the just resolution of the main proceeding. Plaintiff has shown no such necessity here. As the Supreme Court noted in Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 376, 98 S.Ct. 2396, 2404, 57 L.Ed.2d 274 (1978):

Ancillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.

(footnote omitted).

Plaintiff loses no rights if it is denied a hearing in this court of its § 545 claim; it may simply sue in district court. Although this may be inconvenient for plaintiff, Congress apparently intended this result — as will be discussed infra.

Although the court's exercise of pendent jurisdiction may not be limited by the requirement of necessity in every case, this court's exercise of pendent jurisdiction is limited by Congressional intent, particularly the Congressional intent involved...

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