Wood v. Standard Products Co., Inc.

• Decision Date: 19 September 1978
• Docket Number: Civ. A. No. 77-0338-R.
• Citation: 456 F. Supp. 1098
• Parties: Caster WOOD v. STANDARD PRODUCTS COMPANY, INC.
• Court: U.S. District Court — Eastern District of Virginia

456 F. Supp. 1098

Caster WOOD v. STANDARD PRODUCTS COMPANY, INC.

Civ. A. No. 77-0338-R.

United States District Court, E. D. Virginia, Richmond Division.

September 19, 1978.

Alan W. Clarke, Clarke & Johnston, Lively, Va., James A. Eichner, Richmond, Va., for plaintiff.

John M. Ryan, Norfolk, Va., Elliott Norman, Asst. U. S. Atty., Richmond, Va., Thomas J. Harlan, Jr., Norfolk, Va., for defendant.

MEMORANDUM

WARRINER, District Judge.

In this action by Caster Wood, a fisherman, against defendant Standard Products Company, Inc., shipowner, and defendant United States of America, Wood amended his complaint to add Dr. Robert E. Beatley as a party. Dr. Beatley is the physician who treated Wood for fish slime infection and it is the alleged deficiency in that treatment which is central to this action.

Wood, while working as a fisherman in the Chesapeake Bay for defendant employer Standard Products, incurred an infection in the middle finger of his left hand. The infection was treated by Dr. Beatley, a private physician in Northumberland County, Virginia. The treatment was performed under contract between Dr. Beatley and the U. S. Public Health Service. After continued treatment by Dr. Beatley the condition worsened and plaintiff went for further treatment to a hospital where plaintiff's left hand and part of his forearm were amputated. Plaintiff alleges that his loss was due to defendant Beatley's negligent treatment of the fish slime infection. Thus against Dr. Beatley plaintiff states a State tort law claim for medical malpractice.

Because there is no diversity of citizenship between Wood and Dr. Beatley, defendant Beatley moves that he be dismissed as a party for lack of jurisdiction in this Court. Plaintiff claims that this Court may exercise jurisdiction over Dr. Beatley on the basis of either a theory of pendent party jurisdiction or on an agency theory.

I

Whether Dr. Beatley is an agent of either defendant Standard Products or defendant United States is irrelevant to the question of this Court's jurisdiction over him. Being the principal's agent does not, in and of itself, make the agent liable as a party. If tortious conduct is committed by the agent, he is responsible for it as an independent party, not as the agent of the principal. 3 Am.Jur.2d Agency § 300. That Dr. Beatley may or may not be an agent of either of the other two defendants will not independently bring Dr. Beatley in as a party subject to the jurisdiction of the Court. The requirement of diversity is not waived merely because of the existence of an agency. Plaintiff's authorities in support of his position on agency all deal with jurisdiction over the shipowner for acts of his agents. The agency theory being disposed of, the question remains whether the Court may exercise pendent party jurisdiction over Dr. Beatley.

II

The complaint, as presently amended, in addition to the malpractice claim against Dr. Beatley, states three (3) other causes of action. There is a Jones Act claim, 46 U.S.C. § 688, and a general maritime tort law claim, 28 U.S.C. § 1333, against the defendant shipowner Standard Products and there is a Federal Tort Claims Act, 28 U.S.C. § 2674, cause of action against the United States.

By order of this Court dated 8 March 1978 the question of whether the United States is liable as principal for the alleged malpractice of Dr. Beatley has been separated from the rest of the case. Thus there will be a bifurcated proceeding with the liability of defendant Standard Products determined first and the claim against the United States under the Federal Tort Claims Act considered separately.

Despite this bifurcated trial proceeding, the Court has before it the Federal Tort Claims Act cause of action against the United States as well as the general maritime claim and the Jones Act claim against defendant employer Standard Products. This Court can exercise jurisdiction over the State law claim against Dr. Beatley only if it be considered pendent to at least one of the three (3) claims against the other defendants.

In determining whether there is pendent jurisdiction over an additional party, Aldinger v. Howard, 427 U.S. 1, 17, 96 S.Ct. 2413, 2421, 49 L.Ed.2d 276 (1976) instructs the district court to pay "careful attention to the relevant statutory language." With respect to the Jones Act, 46 U.S.C. § 688, the statutory language itself does not give much guidance to congressional intent.¹ But case law clearly limits the action to one against the shipowner or the ship. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 787, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949); Hanlon v. Waterman Steamship Corp., 265 F.2d 206, 207, (2nd Cir. 1959). This limitation on who may be sued under the Jones Act is at least as explicit as the supposed congressional limitation in 42 U.S.C. § 1983 claims against counties recognized in Aldinger yet abandoned two (2) years later in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This Court holds, then, that the Jones Act does not lend itself to a finding of Congressional permission to assert state law claims against non-diverse defendants as pendent parties.

III

Plaintiff also asserts a claim under general maritime law. It is specifically alleged that the boat on which plaintiff suffered his injury was unseaworthy in that proper gloves or other safety devices were not supplied to prevent the type of injury suffered by the plaintiff. This claim of injury to the plaintiff caused by the unseaworthiness of defendant Standard Products' boat is a maritime tort fully cognizable by this Court under its general maritime jurisdiction, 28 U.S.C. § 1333. Victory Carriers v. Law, 404 U.S. 204, 205-206, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), reh. den. 404 U.S. 1064, 92 S.Ct. 731, 30 L.Ed.2d 753 (1972). There is no bar to the joinder of a Jones Act claim with one under general maritime law and the general maritime law claim is not subsumed in the Jones Act claim. Sea-Land Services v. Gaudet, 414 U.S. 573, 589, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Thus, the Court must consider the question of whether the federal maritime claim can support the jurisdiction of this Court over Dr. Beatley.

It is clear that if the anchor claim on which pendant jurisdiction is asserted is based on diversity, a federal district court may not reach out and assert jurisdiction over an additional party in order to adjudicate a pendant State claim where there is no diversity as to the additional party. It does not matter that there is a common nucleus of operative facts or that judicial economy might be served. Owen Equipment & Erection Co. v. Kroger, ___ U.S. ___, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Parker v. W.W. Moore & Sons, Inc., 528 F.2d 764 (4th Cir. 1975).

But when the anchor claim is one grounded in federal law, as the general maritime claim is here, then it is not Owen and Parker to which this Court must pay primary attention, but Aldinger. Aldinger, specifically dealing with pendant party jurisdiction based upon a federal question, a 42 U.S.C. § 1983 claim, provides the framework for analysis for this pendant party jurisdictional question.

After directing the district courts to the relevant statutory language, Aldinger, 427 U.S. at 18, 96 S.Ct. at 2422, tells us that:

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. § 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.

Aldinger, 427 U.S. at 15, 96 S.Ct. 2413 also quotes with approval the language from Kenrose Manufacturing Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (4th Cir. 1972) that where efficiency can be achieved by bringing the entire action in State court, the argument of increasing judicial efficiency by hearing the entire action in federal court is essentially hollow.

The Supreme Court has told us that pendant jurisdiction over an additional non-diverse party may not be predicated upon an anchor claim based on diversity of citizenship. Where the anchor claim is based on a federal question, then congressional intent as reflected in the relevant statutory language permitting, judicial economy and efficiency may lead the federal trial court to exercise jurisdiction over a non-diverse pendant party against whom only a State law claim is asserted. Where judicial economy and efficiency can be just as easily achieved in the State courts there is no need to assert pendant party jurisdiction.

Before attempting to apply the test above outlined, it will be helpful to canvass opinions from the various courts of appeals to see what guidance they give in applying the test. The only post-Aldinger case that has come to this Court's attention is Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977). Ayala, a Federal Tort Claims Act case, has continued the line of Ninth Circuit cases rejecting pendant party jurisdiction across the board. The Court states that the Supreme Court's dictum in Aldinger concerning the desirability of pendant party jurisdiction when the jurisdictional basis is the Federal Tort Claims Act is not binding and that it will continue to reject such pendant party jurisdiction under its own precedents, Williams v. United States, 405 F.2d 951 (9th Cir. 1969) and Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969), until they are expressly overruled by the Supreme Court. Ayala, supra at 1200. Relying on precedent, Ayala does not analyze the question of pendant party jurisdiction in the Aldinger framework.

Both the First and Fifth circuits have expressly approved the exercise of pendant party jurisdiction over an additional non-diverse party where the anchor claim is a federal one and complete...