Supplemental jurisdiction problem set: explanations

• There is 1331 federal question (“FQ”) jurisdiction over the copyright claim.
• There is also 1338 copyright jurisdiction over the copyright claim.
• There is 1332 diversity jurisdiction over both claims. The parties are diverse and the aggregated amount in controversy exceeds $75K, not counting interest and costs.

2. P (California) sues D (California) alleging copyright infringement arising from D’s copying P’s book. P joins a claim against D for an unrelated battery arising from a dispute over some rare and valuable single-malt scotch whisky, seeking $100,000 in damages.

3. P (California) sues D (California) alleging federal employment discrimination that led to her dismissal. P joins a claim for state employment discrimination arising from the same dismissal seeking $100,000 in damages.

• First, a CNOF exists because both claims arise from the same T&O.
• Second, because the original claim is a federal question, 1367(b) doesn’t apply at all.

• Original jurisdiction over P’s claim under 1331 & 1338.
• The breach of contract counterclaim is compulsory, because it arose from the same T or O as P’s claim. This will satisfy CNOF, so 1367(a) is satisfied.
• The original claim does not rest on diversity at all, so 1367(b) doesn’t apply.

• Original jurisdiction exists for P’s claim under 1332 but not over the counterclaim because the amount in controversy (“AIC”) is too low.
• But it’s a compulsory counterclaim so it satisfies the CNOF test of 1367(a).
• 1367(b) must be addressed because original jurisdiction arose solely under 1332. Here, the counterclaim was by a D against a P, and none of the listings in 1367(b) is implicated. So SJ is ok.

• There’s original SMJ over P v. D under 1332.
• There’s also original SMJ over D v. TPD under 1332.
• What about the fact that P and TPD are citizens of the same state. But for purposes of measuring diversity, treat P v. D and D v. TPD as separate claims. There is no adversity between P and TPD in this scenario. Put differently, the relevant “v.s” here are P v. D and D v. TPD. 

• Definitely original diversity SMJ over P v. D.
• What about the third-party claim of D v. TPD? No original SMJ because both D and TPD are citizens of Florida. No diversity, and no FQ.
• What about SJ? Is there a CNOF between the original claim and the third-party claim? Yes, pretty much by definition. A proper third-party claim is one that asserts that the third party “is or may be liable” to the defendant “for all or part” of P’s claim against D. Because of the derivative nature of a third-party claim, it should arise from a CNOF with the original claim. So 1367(a) should grant SJ.
• What about 1367(b): does it bar SJ? Original jurisdiction is 1332-only so we must consider this possibility. But here’s the critical question. Does 1367(b) bar SJ of D v. TPD? No, it doesn’t. 1367(b) doesn’t bar claims by defendants against persons made parties under Rule 14. It bars claims “by plaintiffs against persons made parties under Rule 14, 19, 20, or 24.
• This makes some sense.
  • A P gets the first choice regarding who gets sued, for what, and where. Accordingly, 1367(b) limits who a P can sue through SJ, so that a P can’t use SJ to easily bypass the limits provided by diversity jurisdiction. In contrast, a defending party is stuck in the court of P’s choice unless the defending party can obtain, as appropriate, dismissal, transfer, removal, or remand. So the SJ-divesting provisions of 1367(b) don’t apply to defending parties.
  • This also makes sense from an efficiency standpoint: D’s third-party claim against TPD is derivative of the original claim of P v. D, so 1367(b) permits the third-party claim to be litigated together, even though diversity is lacking between D and TPD.

• Original diversity SMJ over P v. D.
• SJ over D v. TPD (see explanation to previous question).
• What about P v. TPD? There’s original jurisdiction over P’s claim against TPD: diversity of citizenship and the amount in controversy are satisfied. SJ is unneeded.

• Still original diversity SMJ over P v. D.
• Still SJ over D v. TPD (see explanation to question 8).
• But what about P v. TPD for $5K? Let’s use this one for a more thorough analysis:
  • No original diversity SMJ over P v. TPD because the amount in controversy is too low.
  • What about 1367? Because there is original SMJ over P v. D, we can look at 1367.
  • Consider 1367(a). Does P v. TPD have CNOF with P v. D, the claim having original SMJ? Yes (same accident). So 1367(a) grants SJ.
  • Does 1367(b) bar SJ? Yes it does, because P v. TPD is a claim by a P against a person joined under Rule 14! So no SJ. This means that P will have to sue TPD in state court.
  • This result might not be so efficient, but Congress has chosen to limit the scope of supplemental jurisdiction regarding supplemental claims in the scenarios listed in 1367(b). Note that these are all scenarios involving claims by plaintiffs. This makes sense: if a plaintiff knows that there are potential defending parties, but those defending parties would lack diversity jurisdiction, then plaintiff ought to initially sue in state court. Congress did not intend the supplemental jurisdiction statute to lead to a huge expansion of federal court jurisdiction over state-law claims. (This is something that the Exxon court recognizes but pretty much glosses over.)

FOLLOW-UP QUESTION 1: what if TPD asserted a claim against P for $5K from the same accident? Then SJ would be ok! The prohibition in 1367(b) against P v. TPD doesn’t prevent TPD v. P!

FOLLOW-UP QUESTION 2: suppose TPD asserted a $5K claim against P (noted just above). Further suppose P then asserted a $5K counterclaim against TPD. Would we reach the same result as follow-up # 1?

• CNOF? Sure, same facts, same type of violation.
• Can 1367(a) be used to join additional parties? Yes, see last sentence.
• Does 1367(b) bar SJ? No, because the original claim against D1 arose under federal law! (What if the original claim arose under state law only?)

• Obviously diversity SMJ over P v. D1.
• P v. D2? No FQ and no diversity because AIC is too low.  Aggregation? No; P cannot aggregate claims asserted against multiple Ds. So we turn to 1367.
  • Does P v. D2 share a CNOF with P v. D1? Yes, same violation.
  • Can you use SJ to join additional parties? Yes, see last sentence 1367(a).
  • But 1367(b) bars claims by Ps against persons joined under 14, 19, 20, or 24. Here, the two Ds are joined under Rule 20. Accordingly, there is no SJ over P v. D2.

• P1 v. D has original 1332 jurisdiction.
• P2’s claim lacks the amount in controversy. And we can’t aggregate the two claims.
• SJ?
  • Under 1367(a), there’s a CNOF between the original and proposed supplemental claims (same bar fight). You can use 1367(a) to add more parties.
  • What about 1367(b)? Original SMJ is diversity only.
  • Also, 1367(b) prevents supplemental claims asserted by persons proposed to be joined as plaintiffs under Rule 19. But this is not a Rule 19 scenario, and nobody is “proposing” that P2 be joined. P2 has been joined in the original complaint.
  • P2 was joined permissively under Rule 20. 1367(b) is silent regarding claims by persons joined as plaintiffs under Rules 20 and 23. This was the issue decided in Exxon. Here, P2 was joined under Rule 20. 1367(b) doesn’t prevent SJ, and in Exxon, the Court held that SJ over this kind of claim would be ok.

COMMENT 1: what if this was a class action? How would you analyze if some, but not all, class plaintiffs satisfied the amount in controversy? See Exxon.

COMMENT 2: How would you analyze if none of the class plaintiffs satisfied the amount in controversy. Might the aggregate amount in controversy be relevant? See 1332(d).

• Original jurisdiction would exist over a suit of only P1 v. D, right?
• There’s nothing in 1367(a) or (b) to expressly prevent SJ in P2 v. D
  • CNOF & add P1 under 1367(a)? Sure.
  • 1367(b) bars? No, there’s no mention of Rule 20 joinder of Ps in 1367(b). So 1367(b) doesn’t bar joinder of P2. See Exxon’s discussion of 1367(b).
• Regardless, the claim of P2 v. D can’t be part of this suit. In Exxon, the Court said this scenario would violate the “complete diversity” rule. Let’s analyze.
  • Here, original jurisdiction arises under 1332 for P1 v. D.
  • In Exxon, the Court held that bringing in a non-diverse party would destroy — or “contaminate” — the original 1332 jurisdiction. The Supreme Court said you can’t do that.
  • Remember, you can’t have supplemental jurisdiction unless there’s also original jurisdiction over another claim. Permitting P2 to sue D in this lawsuit would destroy the original diversity jurisdiction of P1 v. D!
  • Put differently, you need original jurisdiction to permit supplemental. But permitting supplemental here would destroy original.
  • Put differently again, the problem here is not with 1367(b), but 1367(a). Original SMJ is a non-negotiable threshold prerequisite for SJ. If we allowed the supplemental claim of P2 v. D, it would destroy the very OJ needed to make SJ.

COMMENT: Justice Kennedy’s “contamination” rule in Exxon is a bit hard to swallow. He says that the supplemental jurisdiction statute cannot be used to destroy the complete diversity requirement. But he is not troubled if the supplemental claim lacks amount in controversy. Indeed, one of the issues in Exxon was whether SJ was ok when the original claim met the AIC, but the supplemental claim did not. Question 13 embodies that issue and reaches the same result Kennedy did in the “Starkist tuna” portion of Exxon. So why is the complete diversity requirement so much more important? It’s not a Constitutional requirement, because the Constitution only requires minimal diversity (which exists here). I welcome your thoughts.

• Here, there is original diversity SMJ for P1’s claims against D1 and D2.
• There is no original diversity SMJ for P2’s claims against D1 and D2. The AIC is too low, and aggregation is not permitted.
• There also is no SJ over P2’s claims. Even though CNOF exists, 1367(b) bars SJ over claims asserted by a plaintiff against persons joined under Rule 20. D1 and D2 are joined under Rule 20.

But so what? Just have the plaintiffs file two suits:

• First civil action: P1 and P2 v. D1. P2’s claim is ok under 1367(a) and is not barred under 1367(b). This is just like question 13.
• Second civil action: P1 and P2 v. D2. Ditto analysis.
• The two civil actions will remain separate, but because the accident is common to all the parties, the court can likely consolidate the two separate actions under Rule 42(a). (Hat tip to Glannon for this great hypo!)