Kaiser Gypsum Co. v. Kelly ( 1990 )

OPINION OF THE COURT

ALDISERT, Circuit Judge.

These proceedings arise out of an on-going federal diversity class action, In re Asbestos School Litig., 104 F.R.D. 422 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986), and require us to decide whether to grant the petitioners’ requests for a writ of mandamus or prohibition directing the district court to dismiss the class action complaints for lack of subject matter jurisdiction. Because we conclude that the petitioners have not met their burden of showing a “clear and indisputable” lack of subject matter jurisdiction over the class, we will deny the consolidated petitions for a writ of mandamus in Nos. 90-1125 and 90-1185, and the petition for a writ of prohibition in No. 90-1126. We also consolidate with these petitions W.R. Grace & Co.’s petition for a writ of prohibition in No. 90-1199, and will deny it as well.

I.

On January 17, 1983, the class action giving rise to these petitions was filed in the district court on behalf of a national class consisting of all public and private elementary and secondary schools throughout the country. The complaints alleged claims against approximately fifty manufacturers and producers of asbestos-containing materials, which purportedly were used in the construction of some of the class plaintiffs’ school buildings. On September 28, 1984, the district court certified the class action pursuant to F.R.Civ.P. 23(b)(3), and we affirmed the class certification on May 1, 1986. In re Asbestos School Litig., 104 F.R.D. 422 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). In 1989, several defendant manufacturers requested the dismissal of the federal class action of certain unnamed members on the basis that (1) not every class member has a claim in excess of the $10,000 jurisdictional amount; (2) complete diversity of citizenship between all absent class members and all defendants is required in a diversity-based class action; and (3) asbestos property damage claims are “local actions” involving real estate and may only be brought in the state where the real estate is located. After briefing and oral argument, the district court issued Pretrial Order No. 191 on May 1, 1989, 1989 WL 47035, directing the class plaintiffs to amend their complaints to conform with 28 U.S.C. § 1332(a). The plaintiffs accordingly amended their complaints to allege an amount in controversy of $10,-000 for each plaintiff class member except a hypothetical small number of school districts, not yet identifiable, that only have asbestos inspection costs under $10,000. The complaints also averred that the citizenship of each named class representative was diverse from that of each defendant manufacturer.

On November 15, 1989, after several defendants had filed challenges to the amended complaints, the district court issued Pretrial Order No. 197, 1989 WL 138835, in which it declined to dismiss the class action for lack of subject matter jurisdiction. In its memorandum and order, the district court observed that Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), requires dismissal of only those class members who fail to meet jurisdictional amount requirements. Because those plaintiffs could not be readily determined, the district court concluded that “[a]ny potential jurisdictional problems raised in this case can be cured at trial by entering final judgment at the damages stage of the trial only against those plaintiffs that have sustained the burden of proving damages in excess of $10,000.” App. at 2-3. The district court also determined that complete diversity between all class members and all defendants is not required, and that the “local action” doctrine is inapplicable to the asbestos property damages claims in this class action. App. at 4-6.

After the district court refused to certify Order No. 197 for interlocutory review under 28 U.S.C. § 1292(b), two defendant manufacturers, Kaiser Gypsum Company, Inc. (No. 90-1125) and Fibreboard Corporation (No. 90-1185), filed petitions for a writ of mandamus directing the district court to dismiss the pending complaints and to refrain from any adjudication on the merits until the plaintiffs have cured all jurisdictional defects. A third defendant, United States Gypsum Company, filed a petition for writ of prohibition (No. 90-1126), in which W.R. Grace & Co. joined (No. 90-1199), seeking similar relief. These are the four petitions consolidated before us.

II.

Federal courts have the power to issue writs of mandamus or prohibition under the All Writs Act, 28 U.S.C. § 1651(a), which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” That two petitioners in this case have requested a writ of mandamus and two have requested a writ of prohibition is unimportant; it does not affect the relief requested. Although a writ of mandamus may appear more appropriate when the request is for an order mandating action, and a writ of prohibition may be more accurate when the request is to prohibit action, modem courts have shown little concern for the technical and historic differences between the two writs. 16 C. Wright, A. Miller, E. Cooper & E. Gress-man, Federal Practice and Procedure: Jurisdiction § 3932 (1977 & Supp.1990); see Ex parte Simons, 247 U.S. 231, 239-40, 38 S.Ct. 497, 497-98, 62 L.Ed. 1094 (1918); Jenkins v. Weinshienk, 670 F.2d 915, 917 n. 1 (10th Cir.1982). Under the All Writs Act, the form is less important “than the substantive question [of] whether an extraordinary remedy is available.” In re Davis, 730 F.2d 176, 181 & n. 10 (5th Cir.1984).

The Supreme Court admonishes federal appellate courts to exercise their writ power with caution. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); see DeMasi v. Weiss, 669 F.2d 114, 116-17 (3d Cir.1982). Because the remedy is so extreme, courts should invoke it only “in extraordinary situations.” Kerr, 426 U.S. at 402, 96 S.Ct. at 2123. Traditionally, federal courts have used the power “only to confine inferior courts to their lawful jurisdiction or to compel them to exercise authority when they have a duty to do so.” DeMasi, 669 F.2d at 117 (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). In defining “jurisdiction,” the Supreme Court has avoided a “narrow and technical” construction, directing that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will, 389 U.S. at 95, 88 S.Ct. at 273 (quoting DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)).

Two important policy considerations support the concept that writs of mandamus or prohibition should be granted only sparingly. First, mandamus actions “ ‘have the unfortunate consequence of making the [district court] judge a litigant ...’ in the underlying case.” Kerr, 426 U.S. at 402, 96 S.Ct. at 2124 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384-85, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953)). Second, frequent use of writs of mandamus would ignore the important judicial goal of avoiding piecemeal appellate review. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; DeMasi, 669 F.2d at 117.

To ensure the use of writs in only “extraordinary situations,” the Supreme Court has established two prerequisites to the issuance of a writ: (1) that the petitioner have no other “adequate means to attain the [desired] relief,” and (2) that the petitioner meet its burden of showing that its right to the writ is “clear and indisputable.” Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; see DeMasi, 669 F.2d at 117. Once these two prerequisites are met, the court’s decision of whether to issue the writ is largely one of discretion. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.

III.

Although recognizing constraints on the federal courts’ writ power, the petitioners argue that mandamus or prohibition generally is appropriate to prevent the district court from acting outside its jurisdictional authority. We agree. Courts traditionally have employed writs to restrain jurisdictional excesses, particularly when a lower court has acted without authority to do so. Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). However, mere doubt regarding the trial court’s subject matter jurisdiction is insufficient to invoke a court’s writ power. Justice Brandéis, speaking for the Court, has stated:

If the lower court is clearly without jurisdiction, the writ will ordinarily be granted to one who at the outset objected to the jurisdiction, has preserved his rights by appropriate procedure and has no other remedy. If, however, the jurisdiction of the lower court is doubtful ... or if the jurisdiction depends upon a finding of fact made upon evidence which is not in the record ... or if the complaining party has an adequate remedy by appeal or otherwise ... the writ will ordinarily be denied.

Ex parte Chicago, R.I. & Pac. Ry., 255 U.S. 273, 275-76, 41 S.Ct. 288, 289-90, 65 L.Ed. 631 (1921) (citations omitted); see In re Thornburgh, 869 F.2d 1503, 1517-18 (D.C.Cir.1989) (“We do not find the ‘clear and indisputable’ lack of jurisdiction in the district court ... that is necessary to warrant a writ of mandamus.”). Thus, only if the petitioners show that the district court’s lack of subject matter jurisdiction is “clear and indisputable” and that no other adequate means exists to attain relief should we grant the extraordinary relief requested in these petitions.

The petitioners suggest three jurisdictional defects supporting their request for a writ of mandamus or prohibition: (1) not every class member has a claim in excess of the then-applicable $10,000 jurisdictional amount; (2) complete diversity of citizenship between all absent class members and all defendants is required in a diversity-based class action; and (3) asbestos property damage claims are “local actions” involving real estate and may only be brought in the state where the real estate is located. For the reasons stated below, none of these arguments demonstrates the district court’s “clear and indisputable” lack of subject matter jurisdiction over the class.

The petitioners also argue that pendent party jurisdiction is not available to the class plaintiffs in lieu of federal diversity subject matter jurisdiction. Because we decide that the petitioners have failed to meet their burden of showing that diversity jurisdiction does not exist, we need not reach their claim of lack of pendent party jurisdiction.

IV.

The petitioners first contend that the class plaintiffs (the respondents) have not met their burden of pleading the $10,000 jurisdictional amount in controversy required under former 28 U.S.C. § 1332(a) (Congress since has amended the statute to require an amount in controversy of $50,-000). In their amended complaints, the class plaintiffs concede that a hypothetical small portion of the class will not be able to meet the amount in controversy. However, the petitioners claim that as many as sixty percent of the school districts will not be able to meet the jurisdictional amount because, according to an EPA report, they do not have friable asbestos-containing materials in one or more of their buildings.

It is well established that “[e]ach plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case_” Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). However, as noted in the district court’s memorandum and order, Zahn does not require that an entire class action be dismissed for lack of subject matter jurisdiction over some of the class members. Rather, the court is required only to dismiss those class members whose claims appear to a “legal certainty” to be less than the jurisdictional amount. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).

Because it was not apparent which class plaintiffs should be dismissed, the district court chose to delay dismissing any plaintiffs until it is shown at trial that their claims do not meet the jurisdictional amount. Relying on F.R.Civ.P. 12(d), the district court noted that “[a]ny potential jurisdictional problems raised in this case [could] be cured at trial by entering final judgment at the damages stage of the trial only against those plaintiffs that have sustained the burden of proving damages in excess of $10,000.” App. at 2-3.

Under F.R.Civ.P. 12(d), a judge who is deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may postpone the decision until trial. The rule specifically provides that a Rule 12(b) motion, “whether made in a pleading or by motion, ... shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.” F.R.Civ.P. 12(d) (emphasis added).

At this juncture, we are constrained to note how the dissent construes the action of the district court here. It interprets the district court’s language, “potential jurisdictional problems ... be cured at trial,” to mean after trial (emphasis added). Thus, it states that the district court’s order purported to “ ‘cure’ the jurisdictional deficiency after trial,” Dissenting opinion at 1321 (emphasis added); to “postpon[e] the resolution of a jurisdictional failure until after trial,” id. (emphasis in original); to defer “resolution of the jurisdictional question until after a trial,” id. at 1322 n. 4; to sanction dismissal only “where a plaintiff has failed to establish damages for less than the jurisdictional minimum after trial,” id. at 1324; and to postpone “resolution of jurisdictional questions until after trial,” id. at 1324.

We believe that the dissent’s interpretation is both unfair and inaccurate. The district court’s language “cured at trial” is free from ambiguity and is consistent with the clear authority of Rule 12(d) permitting the jurisdictional decision to be “deferred until the trial.”

The Court of Appeals for the Sixth Circuit, in Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir.1988), has considered the effect of Rule 12(d). In Sterling, the defendant had filed two separate Rule 12(b)(1) motions seeking pretrial dismissal of the class action because certain representative class plaintiffs did not allege the appropriate amount in controversy. Rather than immediately dismissing any plaintiffs’ claims, the district court deferred the jurisdictional decision until trial. The trial judge observed:

[I]t also seems to me that it is not necessary at this point for the court to wholesale order a dismissal of all those potential class members who may not at this point have pleaded, because it seems to me that's a matter that might well come up at some point down the road after the initial phase of the case is tried.... [WJhen you get down to establishing amounts in a case such as this, where there is a jury trial, it puts a burden on the court that the court really doesn’t want to undertake, and that is an assessment of claims at this point to try and make a determination of whether a jurisdictional amount, in fact, can be asserted at this point....

Id. at 1195 n. 5 (emphasis added). The appellate court determined that the trial judge’s action was not improper. Moreover, the court observed that the “method and timetable” for deciding a Rule 12(b) motion is “left to the sole discretion of the trial judge.” Sterling, 855 F.2d at 1195 (emphasis added).

As noted by the district court, however, only one of the motions to dismiss in this case was a Rule 12(b)(1) motion; the other was premised on Rule 12(h)(3). Thus, even if we apply Rule 12(d) to the 12(b)(1) motion, we still must consider the language in Rule 12(h)(3).

Rule 12(h)(3) provides that subject matter jurisdiction can never be waived: “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” However, we find that Rule 12(h)(3) does not require dismissal at this juncture because (1) it is not clear that the district court lacks jurisdiction over the subject matter, and (2) a court does not have to dismiss a claim if the jurisdictional failure can be cured. See Freistak v. Egger, 551 F.Supp. 238, 241 (M.D.Pa.1982); Florida Lime & Avocado Growers, Inc. v. Jacobsen, 169 F.Supp. 774 (D.C.Cal.1958), rev’d on other grounds, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960); see also 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d § 1393, at 772-73 (1990).

To accept the argument advanced by the petitioners, we would have to conclude that Rule 12(h)(3) nullifies the unequivocal language of Rule 12(d): “The defense[] specifically enumerated (1) ... in subdivision (b) of this rule [lack of jurisdiction over the subject matter] ... shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.” We do not believe that nullification of Rule 12(d) was Congress’s intent in approving the Rule 12(h)(3) submission of the Advisory Committee on Civil Rules. We do not believe also that Rule 12(h)(3) requires the district court to rule immediately upon the presentation of a motion to dismiss; we believe that in ipsissimis verbis Rule 12(d) authorizes the district court to defer the hearing and determination.

Because we think that the two provisions must be integrated to provide consistency and be accorded full meaning, we hold that Rule 12(h)(3) invests the district court with the power to dismiss the action, and that Rule 12(d) discloses when this power may be exercised. Any other interpretation would mean that Rule 12(h)(3) strips away completely the discretionary authority conferred in Rule 12(d) when a lack of subject matter jurisdiction is raised.

Applying Rules 12(d) and 12(h)(3) and the rationale in Sterling, we conclude that the district court had the discretionary authority to delay until trial the dismissal of those class members that cannot meet the amount in controversy. Postponing dismissal of such plaintiffs not only appears prudent, but it meshes with our policy. In Nelson v. Keefer, 451 F.2d 289 (3d Cir.1971), we stated that “[i]t is our intention to require removal from the trial list of those ‘flagrant’ cases where it can be determined in advance ‘with legal certainty’ that the congressional mandate of $10,000 minimum was not satisfied.” Id. at 292. This federal class action is not one of those “flagrant” cases. Conceding that some of the class plaintiffs will not meet the jurisdictional amount, the district court is willing to dismiss such plaintiffs once they are identified at trial. We find no abuse of discretion in this approach.

V.

The petitioners next argue that the class must be dismissed due to lack of complete diversity of citizenship. They mount the novel contention that under 28 U.S.C. § 1332(a)(1) the citizenship of each class plaintiff must be diverse from the citizenship of each defendant manufacturer. We reject this argument.

From settled class action cases emerges the precept that in a federal class action only the citizenship of the named class representatives must be diverse from that of the defendants. Snyder v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319, reh’g denied, 394 U.S. 1025, 89 S.Ct. 1622, 23 L.Ed.2d 50 (1969); see In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 162 (2d Cir.1987); 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶ 23.95, at 23-546 (2d ed.1987); C. Wright, Law of Federal Courts § 31, at 170 (4th ed.1983); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3606, at 424 (1984 & Supp.1990). What petitioner Kaiser Gypsum Co., Inc. describes in its brief as “dictum in Snyder v. Harris," Petitioner’s Brief at 23, the Court of Appeals for the Second Circuit describes as “hornbook law, based on 66 years of Supreme Court precedent”:

Although we understand the need to preserve issues for further review, we confess a certain surprise at the vigor with which this argument was pressed in this court and the amount of time that was devoted to it at oral argument. It is hornbook law, based on 66 years of Supreme Court precedent, that complete diversity is required only between the named plaintiffs and the named defendants in a federal class action. 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3606, at 424 (2d ed.1986) (“[t]he courts look only to the citizenship of the representative parties in a class action”). As the Supreme Court noted in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969):

Under current doctrine, if one member of a class is of diverse citizenship from the class’ opponent, and no nondiverse members are named parties, the suit may be brought in federal court even though all other members of the class are citizens of the same State as the defendant and have nothing to fear from trying the lawsuit in the courts of their own State. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 [41 S.Ct. 338, 65 L.Ed. 673] (1921).

394 U.S. at 340, 89 S.Ct. at 1059.... Thus, if appellants’ theory of class action jurisdiction is to become law, this must be done by the Supreme Court.

Agent Orange, 818 F.2d at 162. The trial courts in this circuit have not questioned this precept. Pirrone v. North Hotel Assocs., 108 F.R.D. 78, 83 n. 2 (E.D.Pa.1985); McMahon Books, Inc. v. Willow Grove Assocs., 108 F.R.D. 32, 40 n. 5 (E.D.Pa.1985). Because the complaints in the case before us properly allege that the citizenship of the named class representatives is diverse from that of the defendants, the requisite diversity of citizenship is present.

The petitioners unconvincingly argue that Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), overruled Snyder sub silentio. They claim that Finley requires complete diversity of citizenship between all class plaintiffs and all defendants in Rule 23(b)(3) class actions. This argument is unimpressive for several reasons.

First, Finley does not even address the Snyder rule. The only issue before the Court in Finley was whether the Federal Tort Claims Act “permits an assertion of pendent jurisdiction over additional parties.” Id. 109 S.Ct. at 2005. Relying on precedent rejecting pendent party jurisdiction, Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), the Court held that a “grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties.” Finley, 109 S.Ct. at 2010 (emphasis added).

At no point did the Supreme Court even allude to the diversity requirement in federal class actions. Surely, if Finley’s objective was to overrule Snyder by implication and to require complete diversity between all plaintiffs and all defendants in class actions, the Court at least would have made direct or indirect reference to the subject. The Court knows how to state explicitly that a previous decision is no longer to be followed; it knows how to frame a precept in the form of a major premise in which the rules of logic support an implication that a previous holding is threatened; it also knows how to send signals that it will be reconsidering a previous ruling. No such reference to diversity class actions—by express direction, implication or signal-sending—is present in Finley. To suggest that a subliminal message can be found therein, as urged by the petitioners here, is to concoct a fictitious extravaganza that has no place in a serious argument before this court. The petitioners have not submitted a single case supporting their position that Finley has obliterated the teachings of Snyder v. Harris; nor has our independent research discovered any such decision.

Moreover, counsel for United States Gypsum Co. and Kaiser Cement Corp. candidly explained at oral argument the motive behind their argument that Finley now requires complete diversity of all members of the class. Counsel stated that the purpose was to destroy nationwide federal diversity class actions:

THE COURT: [I]f we will accept your subject matter jurisdiction arguments and those of your colleague or your friend who just argued—

MR. KIRBY: Both.

THE COURT:—that what this is actually doing is really virtually precluding class actions in diversity matters?

MR. KIRBY: Nationwide class actions would, we sincerely hope, be dead.

Transcript of Oral Argument at 78-79, In re School Asbestos Litig., 921 F.2d 1330 (3d Cir.1990). Here we must proceed with caution. It is for the Congress, not the courts, to legislate changes in the diversity laws.

In 1988 Congress reconsidered the diversity jurisdiction of the federal courts. Judicial Improvements and Access to Justice Act, Pub.L. No. 100-702, 102 Stat. 4642 (1988) (partly codified as amended at 28 U.S.C. § 1332). Although the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice strongly recommended that “virtually all of the Federal court jurisdiction based on the citizenship of the parties” be eliminated, the full Committee on the Judiciary rejected this proposal, suggesting instead that the jurisdictional amount in controversy be raised from $10,000 to $50,000. H.R.Rep. No. 100-889, 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 5982, 5987-88. One of the principal reasons the Committee rejected the complete abolition of diversity jurisdiction was the opposition of key officials responsible for state court systems. Siegel, Commentary on 1988 Revision, in 28 U.S.C. § 1332 (West Supp.1990). Congress accepted the Committee’s compromise and voted merely to raise the amount in controversy. Id. Notwithstanding the discussions regarding abolition, Congress did not make any attempt in its 1988 revision to exempt federal class actions from diversity jurisdiction.

The legislative history of 28 U.S.C. § 1332 and the Congressional endorsement of Rule 23(b)(3) class actions manifest Congress’s support of diversity-based class actions. If the petitioners wish to sound the death knell on such class actions, their sounding board is the Congress and not this court.

VI.

Petitioner Kaiser Gypsum Company also contends that because the “local action” doctrine applies to any action directly affecting land and real property, the district court’s subject matter jurisdiction is limited by the doctrine to claims related to property located in Pennsylvania. The district court rejected this argument, determining that the plaintiffs’ claims are “largely tort claims,” which are “transitory” rather than “local” in nature.

The law distinguishes between transitory and local actions. Local actions are essentially in rem and may only be prosecuted “where the thing on which they are founded is situated.” 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3822, at 204-05 (1986) (quoting Casey v. Adams, 102 U.S. 66, 67-68, 26 L.Ed. 52 (1880)). A transitory action may be brought wherever venue is proper. Id.

The class plaintiffs cite Dayton Indep. School Dist. v. U.S. Mineral Prods. Co., No. B-87-00507-CA (E.D.Tex. Feb. 14, 1989), as authority for their contention that this class action is transitory. In an action involving the same allegations and legal theories as this case, the Dayton court held:

Such claims sound primarily in product liability and in tort. The gravamen of Plaintiffs complaint is that the presence of Defendants’ products in their buildings poses a health risk to building workers and occupants which must be addressed.

In several years of managing large mul-ti-plaintiff asbestos litigation such as the cases presently before the Court, there has been no occasion to consider title to or possession of any of the buildings which contain the asbestos products at issue, or to resolve any issues involving principles of property law. The parties may use whatever terms they please to describe these cases, but the fact remains that, regardless of the nomenclature used, these claims are transitory in nature rather than local in nature. Suits such as these asbestos cases do not involve title to or possession of land such as would be governed by the local action doctrine. Rather, the Plaintiffs are seeking to recover monetary damages arising out of the alleged manufacture and sale of defective products, which “might have taken place anywhere.” The local action rule is not applicable to Plaintiffs claim.

Id. (emphasis added). The district court in this case conceded in its order that questions relating to the ownership of some of the school buildings may arise later in the litigation. App. at 6. As an alternative to dismissing the complaints now, the district court determined that it could dismiss those school districts for lack of subject matter jurisdiction once the local action doctrine is shown to apply.

We agree that it is premature to invoke the local action doctrine at this time. Because the alleged claims appear transitory and are not bound to any issues of title or possession of real property, we reject Kaiser Gypsum’s local action argument.

VII.

We conclude that petitioners have not met their burden of showing a “clear and indisputable” lack of federal diversity subject matter jurisdiction in this case. Because they have failed to establish this prerequisite to the issuance of a writ, the consolidated petitions for a writ of mandamus or prohibition will be denied.