Rosmer v. Pfizer Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LOUISE ROSMER, on behalf of herself 
and as class representative,
Plaintiff-Appellant,
v.  No. 00-2224
PFIZER INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-00-2168-9-8)
Argued: March 2, 2001
Decided: August 23, 2001
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Senior Judge Hall joined. Judge Motz
wrote a dissenting opinion.
COUNSEL
ARGUED: Robert Norris Hill, SPEIGHTS & RUNYAN, Hampton,
South Carolina, for Appellant. David Klingsberg, KAYE, SCHOLER,
2 ROSMER v. PFIZER INC.
FIERMAN, HAYS & HANDLER, L.L.P., New York, New York, for
Appellee. ON BRIEF: Daniel A. Speights, Amanda G. Steinmeyer,
SPEIGHTS & RUNYAN, Hampton, South Carolina; Howard Ham-
mer, HAMMER, HAMMER, CARRIGG & POTTERFIELD, Colum-
bia, South Carolina, for Appellant. Robert Grass, KAYE, SCHOLER,
FIERMAN, HAYS & HANDLER, L.L.P., New York, New York;
Michael T. Cole, Jane Thompson Davis, NELSON, MULLINS,
RILEY & SCARBOROUGH, L.L.P., Charleston, South Carolina, for
Appellee.
OPINION
WILKINSON, Chief Judge:
This case turns on one discrete question of statutory interpretation
— whether 28 U.S.C. § 1367 (1994) permits federal courts to exercise
supplemental jurisdiction in a diversity class action when one named
plaintiff has a claim above the jurisdictional minimum. The district
court held that § 1367 confers federal subject matter jurisdiction over
class members whose claims do not satisfy the amount in controversy
requirement of 28 U.S.C. § 1332, as long as diversity jurisdiction
exists over the claims of a named plaintiff. Because the plain text of
§ 1367 authorizes supplemental jurisdiction in diversity class actions,
we affirm the judgment of the district court.
I.
Louise Rosmer filed an action in state court against Pfizer Inc. on
behalf of herself and as class representative for "all persons whose
spouses have been injured by the drug Trovan." She alleged a loss of
consortium arising from injuries to her husband caused by Trovan, an
antibiotic manufactured by Pfizer. She sought to recover general and
special damages resulting from the loss of consortium as well as puni-
tive damages.
Only state-law claims were pled. Rosmer is a resident of South
Carolina. Pfizer is a Delaware corporation with its principal place of
business in New York. The parties agree that Rosmer’s individual
ROSMER v. PFIZER INC. 3
claim exceeded $75,000. The complaint alleged, however, that some
class members suffered less than $75,000 in actual and punitive dam-
ages.
Pfizer removed this action from state court to the United States
District Court for the District of South Carolina, basing federal sub-
ject matter jurisdiction on 28 U.S.C. §§ 1332 and 1367. Pfizer main-
tained that the district court had original jurisdiction under § 1332
over Rosmer’s claims because she and Pfizer were of diverse citizen-
ship, and Rosmer’s claims exceeded $75,000. See 28 U.S.C.A. § 1332
(West Supp. 1999).1 Pfizer then contended that where the district
court had original jurisdiction over the named plaintiff, it had supple-
mental jurisdiction under 28 U.S.C. § 1367 over the claims of all class
members regardless of whether each of their claims independently
satisfied § 1332’s amount in controversy requirement.
Rosmer moved to remand the action to state court alleging a lack
of federal subject matter jurisdiction. The district court held that sub-
ject matter jurisdiction was appropriate in this case and denied
Rosmer’s motion to remand. At the same time, the court certified its
order for interlocutory review under 28 U.S.C. § 1292(b). This court
granted Rosmer’s petition for interlocutory review, and Rosmer now
appeals.
II.
In 1973, the Supreme Court held that in a class action, multiple
plaintiffs with separate and distinct claims must each satisfy the juris-
dictional amount for diversity suits in federal courts. See Zahn v. Int’l
Paper Co., 414 U.S. 291, 300-01 (1973). The Court concluded that
"any plaintiff without the jurisdictional amount must be dismissed
from the case, even though others allege jurisdictionally sufficient
claims." Id. at 300.
1
Section 1332 reads in pertinent part:
(a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between —
(1) citizens of different States . . . .
4 ROSMER v. PFIZER INC.
The rule that all plaintiffs in a class action must independently sat-
isfy the amount in controversy requirement went unchallenged until
1990, when Congress created supplemental jurisdiction with the pas-
sage of 28 U.S.C. § 1367.2
The supplemental jurisdiction statute was passed in response to the
Supreme Court’s decision in Finley v. United States, 490 U.S. 545
(1989). In Finley, the plaintiff brought a Federal Tort Claims Act
2
Section 1367 reads in pertinent part:
§ 1367. Supplemental Jurisdiction.
(a) Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of
which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution. Such supple-
mental jurisdiction shall include claims that involve the joinder
or intervention of additional parties.
(b) In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the dis-
trict courts shall not have supplemental jurisdiction under sub-
section (a) over claims by plaintiffs against persons made parties
under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Proce-
dure, or over claims by persons proposed to be joined as plain-
tiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising supple-
mental jurisdiction over such claims would be inconsistent with
the jurisdictional requirements of section 1332.
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if —
1) the claim raises a novel or complex issue of State law,
2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
3) the district court has dismissed all claims over which it
has original jurisdiction, or
4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
ROSMER v. PFIZER INC. 5
action against the United States, alleging negligence on the part of the
Federal Aviation Administration. The plaintiff then moved to amend
her federal complaint to include state law claims against non-diverse
parties. No independent basis for federal jurisdiction existed over the
state law claim against the new defendants. See Finley, 490 U.S. at
546. The Court held that the state law claim did not belong in federal
court. Id. at 554-55. The Court also invited Congress to act, noting
that "[w]hatever we say regarding the scope of jurisdiction conferred
by a particular statute can of course be changed by Congress." Finley,
490 U.S. at 556.
The new § 1367 states that federal courts have supplemental juris-
diction over cases "that are so related to claims in the action within
such original jurisdiction that they form part of the same case or con-
troversy." 28 U.S.C. § 1367(a). Thus, Congress overruled the holding
in Finley that pendent parties do not belong in federal court.
Congress did not authorize supplemental jurisdiction in all cases,
however. Section 1367(b) states that when "original jurisdiction [is]
founded solely on section 1332," federal courts shall not have supple-
mental jurisdiction over "claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Pro-
cedure, or over claims by persons proposed to be joined as plaintiffs
under Rule 19 of such rules, or seeking to intervene as plaintiffs under
Rule 24 of such rules, when exercising supplemental jurisdiction over
such claims would be inconsistent with the jurisdictional requirements
of section 1332." 28 U.S.C. § 1367(b). The interpretation of § 1367(a)
& (b) lies at the heart of this case.
III.
We must decide whether § 1367 authorizes supplemental jurisdic-
tion in the diversity class action context, or whether Zahn survives the
enactment of § 1367. Other circuit courts have split on this question.
Compare Stromberg Metal Works, Inc. v. Press Mech., Inc., 77 F.3d
928, 930-31 (7th Cir. 1996) (stating that supplemental jurisdiction
applies to class actions), and In re Abbott Labs., 51 F.3d 524, 528-29
(5th Cir. 1995), aff’d by an equally divided court sub nom. Free v.
Abbott Labs., 529 U.S. 333 (2000) (per curiam) (same), with Trimble
v. Asarco, Inc., 232 F.3d 946, 962 (8th Cir. 2000) (holding that each
6 ROSMER v. PFIZER INC.
member of a class who does not meet the jurisdictional amount must
be dismissed from the case), Meritcare Inc. v. St. Paul Mercury Ins.
Co., 166 F.3d 214, 218 (3d Cir. 1999) (same), and Leonhardt v. West-
ern Sugar Co., 160 F.3d 631, 640 (10th Cir. 1998) (same). The
Supreme Court has recently divided 4-4 on this issue. See Free v.
Abbott Labs., 529 U.S. 333 (2000) (per curiam). Our view, respect-
fully, is that § 1367 confers supplemental jurisdiction in diversity
class actions, so long as one named plaintiff has a claim giving a fed-
eral court original jurisdiction.
A.
Section 1367(a) is a general grant of supplemental jurisdiction,
stating that "in any civil action of which the district courts have origi-
nal jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or con-
troversy under Article III of the United States Constitution." 28
U.S.C. § 1367(a). Section 1367(a) "is broadly phrased to provide for
supplemental jurisdiction over claims appended to ‘any civil action’
over which the court has ‘original jurisdiction.’" Shanaghan v. Cahill,
58 F.3d 106, 109 (4th Cir. 1995) (quoting 28 U.S.C. § 1367(a)).
Section 1367(a) states in straightforward language that a federal
court may exercise supplemental jurisdiction if those claims "form
part of the same case or controversy" as the claim over which "the
district courts have original jurisdiction." 28 U.S.C. § 1367(a). This
case unequivocally fits within the above language. The federal district
court has "original jurisdiction" under § 1332 because Rosmer and
Pfizer are diverse and her claim is above $75,000. 28 U.S.C.A.
§ 1332(a); accord 28 U.S.C. § 1367. And since the pendent claims of
the absent class members raise similar questions of law and fact to
Rosmer’s claim, they are necessarily a "part of the same case or con-
troversy." 28 U.S.C. § 1367(a); see also Fed. R. Civ. P. 23. Therefore,
the district court has supplemental jurisdiction over the other claims.
The only exceptions to the federal court’s supplemental jurisdiction
authority are those "provided in subsections (b) and (c)" or those "ex-
pressly provided otherwise by Federal statute." 28 U.S.C. § 1367(a).
Section 1367(c), relating to discretionary jurisdiction, is inapplicable
ROSMER v. PFIZER INC. 7
to this case. And no federal statute speaks "expressly" as to whether
class actions are subject to supplemental jurisdiction. Accordingly,
the district court may exercise supplemental jurisdiction unless pre-
vented by one of § 1367(b)’s exceptions.
Section 1367(b) "imposes specific limits on the use of supplemen-
tal jurisdiction in diversity cases." Shanaghan, 58 F.3d at 109. Section
1367(b) creates exceptions for "claims by plaintiffs against persons
made parties under Rule 14, 19, 20, or 24 of the Federal Rules of
Civil Procedure, or over claims by persons proposed to be joined as
plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules." 28 U.S.C. § 1367(a). For
example, in diversity actions the rule of complete diversity would still
be required in the context of Rule 24 intervention or Rule 19 joinder
of necessary parties. However, nowhere in § 1367(b) does it exempt
from the normal rules of supplemental jurisdiction persons made par-
ties under Rule 23. In effect, Rosmer would have us rewrite the stat-
ute to insert Rule 23 into § 1367(b)’s list of exceptions. This we
cannot do.
Rosmer nevertheless argues that the text of § 1367 and Zahn can
be harmonized. She relies on Leonhardt v. Western Sugar for the
proposition that § 1367 "can be read literally, and unambiguously, to
require each plaintiff in a class action diversity case to satisfy the
Zahn definition of ‘matter in controversy’ and to individually meet
the $75,000 requirement." Leonhardt, 160 F.3d at 640; see also Trim-
ble, 232 F.3d at 962 (quoting Leonhardt approvingly); Meritcare, 166
F.3d at 221-22 (same).
We disagree with the Leonhardt court on this issue. Leonhardt
relied on two main points to support its holding. First, it stated that
the term "original jurisdiction" in § 1367(a) incorporated the well-
understood definition of "matter in controversy." Thus, the statute
"expressly excepted claims brought under § 1332." Leonhardt, 160
F.3d at 640. Second, Leonhardt based its holding in part on the fact
that "original jurisdiction" meant original jurisdiction over the whole
action at the initiation of a complaint. The plain text of § 1367, how-
ever, cuts against both of the arguments in Leonhardt.
First, the text of § 1367 makes clear that "original jurisdiction" in
§ 1367(a) includes diversity cases. If it were otherwise, as Leonhardt
8 ROSMER v. PFIZER INC.
held, there would be absolutely no need for § 1367(b) at all since
§ 1367(b) only applies to cases brought under 28 U.S.C. § 1332. See
28 U.S.C. § 1367(b) ("In any civil action of which the district courts
have original jurisdiction founded solely on section 1332 of this title
. . . ."). Congress would not have had to exempt some diversity cases
in subsection (b) if subsection (a) did not cover diversity claims in the
first instance.
Indeed, the Leonhardt analysis falters because "original jurisdic-
tion" would mean something different in § 1367(a) than it does in
§§ 1332 and 1367(b). It is a "basic canon of statutory construction
that identical terms within an Act bear the same meaning." Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992). However,
interpreting § 1367(a)’s use of "original jurisdiction" to cover only
federal question claims cannot be reconciled with § 1332’s grant of
"original jurisdiction" over diversity claims. Such a reading of the
statute adds an exception that the language and the structure of the
Act cannot bear. The text does not impose such a hidden barrier for
diversity claims.
Second, Rosmer and Leonhardt maintain that "original jurisdic-
tion" over a "civil action" means that the district court must have orig-
inal jurisdiction over the entire action at the initiation of the
complaint. Yet this reading of the statute would render the phrase
"over all other claims that are so related to claims in the action within
such original jurisdiction" virtually superfluous. 28 U.S.C. § 1367(a).
The language itself contemplates that a "civil action" refers to one
claim in which original jurisdiction is proper. Id. The other claims
that are "so related to claims in the action within such original juris-
diction" are properly in federal court due to § 1367’s grant of supple-
mental jurisdiction. Id.
The phrase "other claims" cannot refer only to claims added after
the action has already been filed. The Leonhardt court read the "other
claims" language narrowly because § 1367(b) speaks to the addition
of parties in "an on-going diversity action." Leonhardt, 160 F.3d at
639. Thus, § 1367(b)’s listing of Rule 14 (addressing third-party
impleaders), Rule 19 (addressing necessary joinder of parties), and
Rule 24 (addressing intervention) shows that supplemental jurisdic-
ROSMER v. PFIZER INC. 9
tion would apply only to parties added to an ongoing action. See
Leonhardt, 160 F.3d at 639-40.
The Leonhardt court’s analysis on this point, however, does not
persuade us. Section 1367(b) does not merely speak to the addition of
parties. It also contains an exception for Rule 20, which authorizes
permissive joinder of parties. And permissive joinder can certainly be
utilized at the beginning of the action, not just for an ongoing diver-
sity action. See, e.g., Carden v. Arkoma Assocs., 494 U.S. 185, 186
(1990) (plaintiff initially sues two different defendants of diverse citi-
zenship); United States v. Mississippi, 380 U.S. 128, 130, 142-43
(1965) (joinder of six defendants at beginning of the complaint valid
under Rule 20); Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 151
(4th Cir. 1995) (plaintiff’s initial complaint joins two different defen-
dants under Rule 20). Thus, if Leonhardt were correct, there would
be no need to except Rule 20 from the grant of supplemental jurisdic-
tion in § 1367(a).
Furthermore, if supplemental jurisdiction is premised on initially
obtaining original jurisdiction over the whole action, the statute would
not even apply to cases such as United Mine Workers of America v.
Gibbs, 383 U.S. 715 (1966), and Finley. Gibbs involved an initial
complaint containing a federal claim and a pendent state law claim
without an independent basis for jurisdiction. Gibbs allowed federal
courts to hear a state law claim that stemmed from the same common
nucleus of operative facts as a federal law claim. See Gibbs, 383 U.S.
at 725. Section 1367 codified this holding. A federal court does not
have subject matter jurisdiction over a pendent claim by virtue of
original jurisdiction. The statute recognizes that the pendent claims
like those in Gibbs are part of the "all other claims," not part of the
"original jurisdiction" over the "civil action." 28 U.S.C. § 1367(a). It
does not matter whether the "original jurisdiction" stems from a fed-
eral question or diversity. More damaging to the Leonhardt court is
the fact that under its analysis, § 1367 would not apply to cases such
as Finley, the very case that prompted the enactment of the statute in
the first instance. If Leonhardt were correct, there would have been
no original jurisdiction in Finley because the plaintiff did not have an
10 ROSMER v. PFIZER INC.
independent jurisdictional basis for suing the non-diverse party in fed-
eral court.3
Rosmer urges us to read distinction after distinction into the term
"original jurisdiction." But we refuse to squint at § 1367(a) so hard
that we lose sight of the statute’s plain meaning. We do not need to
read in an exception to original jurisdiction for diversity jurisdiction
where none exists. Indeed, in Shanaghan we already held that § 1367
"clearly provides for the operation of supplemental jurisdiction in
diversity cases." Shanaghan, 58 F.3d at 109. Section 1367 is a broad
grant of authority for supplemental jurisdiction, subject only to the
express limitations in the Act; it does not contain unspoken limits on
the statutory text. See id. at 109. Thus, § 1367 plainly does not require
that all class members must independently meet the amount in contro-
versy requirement of § 1332.
B.
Rosmer argues, however, that § 1367’s legislative history makes
clear that Congress wanted absent class members to independently
satisfy the amount in controversy requirement. Rosmer points to the
House Committee Report accompanying § 1367 stating that the stat-
ute "is not intended to affect the jurisdictional requirements of 28
U.S.C. § 1332 in diversity-only class actions, as those requirements
were interpreted prior to" Finley. H.R. Rep. No. 101-734, at 29
(1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875. The report sub-
sequently cites Zahn as an example of a case not disturbed by the new
supplemental jurisdiction statute. Id. at n.17.
The Supreme Court, however, has consistently stated that when a
statute is plain on its face, a court’s inquiry is at an end. "The legisla-
tive intent of Congress is to be derived from the language and struc-
ture of the statute itself, if possible, not from the assertions of
codifiers directly at odds with clear statutory language." United States
v. Lanier, 520 U.S. 259, 268 n.6 (1997). It is "the statute, and not the
3
Although the plaintiff in Finley amended her complaint to add the
non-diverse party, the holding was in no way based on the formalistic
distinction between whether the plaintiff originally filed the complaint
against both parties or amended the complaint to do so.
ROSMER v. PFIZER INC. 11
Committee Report, which is the authoritative expression of the law."
City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337 (1994). A bur-
ied reference in a Committee report does not supersede the plain stat-
utory structure and text.4 And the statutory text makes plain that
where the court possesses original jurisdiction under § 1367(a), other
closely related claims are within its supplemental jurisdiction, unless
explicitly excluded by § 1367(b).
C.
Rosmer maintains, however, that since the statutory text is ambigu-
ous, we may resort to the use of legislative history. She argues that
since three other circuits and four Justices of the Supreme Court (by
voting to reverse in Abbott) would hold that § 1367 requires absent
class members to independently satisfy the jurisdictional amount, the
statute must be ambiguous.
We respect the views of those who take a different view of § 1367.
At the same time, we cannot allow the fact that other circuits have
called a statute ambiguous to negate this circuit’s duty to interpret the
text of the enactment. To hold otherwise would mean that we would
automatically call a statute ambiguous because a sister circuit has
interpreted a statute in a contrary manner. In effect, we would be
4
Moreover, even if we were inclined to write in an exception for Rule
23, such an exception might be equally as violative of Congress’ "intent."
In the same footnote where the House Committee Report approvingly
cited Zahn, it also cited Supreme Tribe of Ben-Hur v. Cauble, 255 U.S.
356 (1921). See 1990 U.S.C.C.A.N. at 6875 n.17. In Ben-Hur, the
Supreme Court held that in class actions, only the named plaintiffs must
have complete diversity. In other words, absent class members may come
from the same state as the opposing party so long as all named plaintiffs
are diverse. Adding Rule 23 to § 1367(b)’s exceptions would have the
effect of reversing the result in Ben-Hur even as it sustains the result in
Zahn. Indeed, the House Report’s admonition that both Zahn and Ben-
Hur survive the enactment of § 1367 is simply impossible to square with
the plain text of the statute. See also 16 James Wm. Moore et al.,
Moore’s Federal Practice ¶ 106.44 at 106-33 (3d ed. 1998)
("[A]ssuming that Congress did in fact intend to codify both Ben-Hur
and Zahn, there exists no rational construction of the text of the statute
that could dictate that result.").
12 ROSMER v. PFIZER INC.
abandoning our own duty to interpret the law. See also Moskal v.
United States, 498 U.S. 103, 108 (1990); Jones v. Brown, 41 F.3d
634, 639 (Fed. Cir. 1994) (holding that "differences in judicial inter-
pretation of a statute" do not prove "the statute’s ambiguity"). Indeed,
on many occasions this court has held that a statute was plain and
unambiguous despite a contrary holding by a sister circuit. See, e.g.,
Lee v. Boeing Co., 123 F.3d 801, 806 (4th Cir. 1997); United States
v. Wildes, 120 F.3d 468, 471 (4th Cir. 1997).
Rosmer further maintains that § 1367 is at least ambiguous as to
whether the statute overrules Zahn. But as we discussed in Part III.A.,
§ 1367 is not ambiguous at all. And the Fifth and Seventh Circuits
have likewise held that the statute is unambiguous. See Abbott Labs.,
51 F.3d at 528-29; Stromberg, 77 F.3d at 930-31. For the reasons
stated previously, we agree with those holdings. Statutory analysis
cannot operate as a post-hoc justification for permitting legislative
history to trump the plain meaning of the text.
D.
Rosmer finally argues that interpreting § 1367 to include supple-
mental jurisdiction for class actions would be an absurd result. Both
Rosmer and Pfizer present strong policy arguments as to why § 1367
should or should not include class actions within its scope. Rosmer
maintains that federal courts should play a limited role in adjudicating
state law claims in diversity actions, and should not err on the side
of permitting these types of claims to be swept into the federal sys-
tem. Pfizer, by contrast, points out that for reasons of efficiency and
economy, closely related claims should be tried in a single action.
It is not our place to balance these competing policies. For us to
say which party makes a superior policy argument would betray a
misunderstanding of the role of courts in our federal system. The
plain text of § 1367 is not so "absurd" that we should disregard the
will of Congress. See Abbott, 51 F.3d at 529. Indeed, having class
actions resolved in one forum could potentially improve judicial effi-
ciency and cut the cost of litigation. And, of course, all supplemental
claims in a class action brought into federal court will have to satisfy
the well-established requirements of Rule 23.
ROSMER v. PFIZER INC. 13
IV.
A word, finally, on the position of our fine dissenting colleague.
The debate over federal diversity jurisdiction has been a long-running
one, and the dissent makes no secret of which side it embraces. It
extols "the century-long congressional practice of narrowing rather
than expanding diversity jurisdiction." Infra at 20. It references the
proposition that the "well-established ‘congressional purpose’ to limit
diversity jurisdiction served [the] two salutary goals" of "limiting the
rising caseload of diversity cases so that the federal courts would not
be overwhelmed by state law questions and unable to resolve federal
question cases promptly," and "acceding to the ‘rightful independence
of state governments,’ which ‘requires that [federal courts] scrupu-
lously confine their own jurisdiction to the precise limits which the
statute [§ 1332] defined.’" Infra at 20 n.1. Repeating the anti-diversity
refrain, the dissent asserts that "[i]nstead of acceding to the ‘rightful
independence of state governments,’ by ‘scrupulously confin[ing]’
federal diversity jurisdiction, the majority interprets § 1367 in a way
that allows the federal courts to determine countless local controver-
sies, involving only state law questions." Infra at 26. Expanding
diversity jurisdiction by "eliminat[ing] Zahn, which the majority
apparently proposes, would . . . be untoward — striking a substantial
and totally unnecessary blow to the prerogatives of the states." Infra
at 25 n.3. As if its view of diversity jurisdiction were not already
abundantly clear, the dissent reiterates that "the majority’s interpreta-
tion utterly conflicts with the steadfast Congressional policy of
restricting, rather than expanding, diversity jurisdiction." Infra at 26.
Our holding is therefore "remarkable." Infra at 26. The dissent relates
the finding of the Federal Courts Study Committee that "the federal
courts faced a ‘crisis’ because of a ‘rapidly growing and already enor-
mous caseload.’" Infra at 26. It references approvingly the Commit-
tee’s recommendation that "to address this problem, Congress
severely curtail federal diversity jurisdiction." Infra at 26. The dissent
concludes by reminding us one last time that "[t]he impact of the
majority’s approach is staggering and totally at odds with a continu-
ous congressional policy — before and after enactment of § 1367 —
to limit diversity jurisdiction." Infra at 28.
It is difficult to view the dissent as anything more than an all-out
assault on federal diversity jurisdiction. There are, to be sure, legiti-
14 ROSMER v. PFIZER INC.
mate arguments to be made for and against the exercise of this form
of federal jurisdiction. As a set of policy prescriptions, the dissent is
in many ways congenial. However, Article III rather explicitly
charges Congress with "ordain[ing] and establish[ing]" the structure
of the federal courts, the boundaries of their jurisdiction, and the
parameters of § 1332. See Sheldon v. Sill, 49 U.S. (8 How.) 441
(1850). Notwithstanding the symmetrical satisfaction of leaving fed-
eral law to federal courts and state law to state courts, we cannot read
§ 1367 to reflect a view of diversity as a disfavored form of federal
jurisdiction if its language will not coherently parse that way. To do
so in the face of § 1367’s straightforward statutory mandate is to
place our judicial cart before the congressional horse.
Reduced to its analytical core, the dissent argues that § 1367(a) is
essentially a federal question jurisdiction statute. In the dissent’s
view, it must not be read to affect diversity jurisdiction in any way.
If § 1367 pertains predominantly to federal questions, then there is
virtually no authorization for supplemental jurisdiction in diversity
cases. After all, if each and every plaintiff in a diversity case must sat-
isfy § 1332’s requirements of complete "diversity" and "matter in
controversy," as the dissent contends, see infra at 18-20, 22-23, then
there remains no supplemental jurisdiction in a diversity action for
district courts to exercise. Of course, the dissent must try to argue that
§ 1367(a) is basically a federal question statute in order to avoid the
obvious awkwardness of the omission of Rule 23 from § 1367(b)’s
list of exceptions. See ante at 7. With all respect to our good col-
league, this view of § 1367(a) as fundamentally a federal question
statute reflects little more than wishful judicial thinking.
This is so for two reasons, which we have earlier touched upon.
First, one searches in vain for a difference in the way § 1367(a) treats
federal question and diversity jurisdiction. The terms of the statute are
equally applicable to both forms of federal jurisdiction. Consider
§ 1367(a)’s use of the word "related." Supplemental claims are "re-
lated" to the original claim by virtue of their similarity to the original,
not because the supplemental claims independently satisfy all juris-
dictional requirements. Supplemental jurisdiction is an efficiency con-
cept. And supplemental claims can be as efficiently tied or "related"
to an original diversity claim as to an original federal question. To
take the statutory language, supplemental claims in a diversity case
ROSMER v. PFIZER INC. 15
can "form part of the same case or controversy under Article III of the
United States Constitution" even if they lack the requisite jurisdic-
tional amount. 28 U.S.C. § 1367(a). Congress could so easily have
distinguished between federal question and diversity jurisdiction in
conferring supplemental jurisdiction under § 1367(a), but it did not
differentiate these two forms of federal jurisdiction in any remotely
perceivable fashion.
Second, § 1367, by its very terms, presupposes that § 1367(a)
applies to diversity proceedings. Section 1367(a) begins with the
clause, "Except as provided in subsection[ ] (b) . . . ." This means that
the text of § 1367(b) withdraws from § 1367(a) that which would oth-
erwise fall within its purview. And the text of § 1367(b) emphatically
refers to diversity jurisdiction. In other words, but for the withdrawal
of supplemental jurisdiction in diversity cases in § 1367(b), a corre-
sponding grant of supplemental diversity jurisdiction would exist in
§ 1367(a). Thus, § 1367(a) must apply to diversity cases. Otherwise,
there would be no need to list explicit exceptions to the exercise of
supplemental diversity jurisdiction in § 1367(b). It is inconceivable
that § 1367(b)’s exceptions explicitly relate to § 1332, but that the
section from which the exceptions are taken does not.
The dissent argues that its "reading of § 1367(a) does not render
§ 1367(b)’s various prohibitions on supplemental jurisdiction unnec-
essary because § 1367(b) bars parties, after the action has com-
menced, from invoking supplemental jurisdiction over claims they
could not have asserted, consistent with diversity jurisdiction require-
ments, at the outset." Infra at 23-24. But nothing in § 1367(a) indi-
cates that it refers only to claims brought at the beginning of the
action. Nothing in § 1367(b) indicates that it applies solely to claims
brought after the action has commenced. And nothing in the text of
§ 1367 indicates that Congress has adopted the dissent’s proposed
temporal distinction.5
5
The same can be said of the dissent’s concern that § 1367(b) does not
except claims by multiple plaintiffs joined under Rule 20. See infra at
24-25. Putting aside the dissent’s wholly speculative conclusion that
Congress’ failure to except such claims will "wreak havoc," infra at 24,
such is the statute Congress clearly wrote.
16 ROSMER v. PFIZER INC.
The dissent makes a nice conceptual distinction between the nature
of federal question and diversity jurisdiction. It is certainly true that
"a federal court’s jurisdiction in federal question cases cannot be
destroyed by the identity or claims of other parties in an action," but
that "a federal court’s jurisdiction in a diversity case wholly turns on
the identity and claims of the parties." Infra at 23. Simply to state this
distinction in the abstract is insufficient. It is up to Congress to trans-
mute the distinction into a dispositive difference in the text of legisla-
tion. That is precisely what Congress has not done.
Much of the dissent is a pastiche of legislative history and policy
prescription, with quotations from the Federal Courts Study Commit-
tee thrown in for good measure. Though we see no reason to examine
§ 1367(a)’s legislative history in view of the straightforward reading
to which the statute lends itself, it is nevertheless worth noting that
the circumstances surrounding the creation of the legislative history
in fact support our interpretation. The drafters of § 1367 apparently
realized that they failed to except class actions under Rule 23 from
§ 1367(a)’s grant of supplemental jurisdiction. In an attempt to rectify
matters, they put together a post-hoc legislative history stating that
§ 1367(a) was not intended to overrule Zahn. See H.R. Rep. No. 101-
734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875 n.17.
Three drafters noted the effort with admirable candor:
[O]n its face, section 1367 does not appear to forbid supple-
mental jurisdiction over claims of class members that do not
satisfy section 1332’s jurisdictional amount requirement,
which would overrule Zahn . . . . [There is] a disclaimer of
intent to accomplish this result in the legislative history. . . .
This same observation is sufficient to meet the dissent’s further objec-
tion that the majority is overruling Strawbridge v. Curtiss. See infra at
25-26. The majority, of course, is doing nothing more than interpreting
a statute. Rosmer’s claim satisfies the requirement of Strawbridge. And
to say that § 1367 overrules Strawbridge is to say that Gibbs overruled
National Mutual Insurance Co. v. Tidewater Transfer Co., Inc., 337 U.S.
582 (1949) (Congress cannot confer jurisdiction on Article III courts by
statute when Article III does not authorize that jurisdiction.). Congress
has no more overruled Strawbridge than Gibbs overruled Tidewater.
ROSMER v. PFIZER INC. 17
It would have been better had the statute dealt explicitly
with this problem, and the legislative history was an attempt
to correct the oversight.
Thomas D. Rowe, Jr., Stephen B. Burbank, & Thomas M. Mengler,
Compounding or Creating Confusion About Supplemental Jurisdic-
tion? A Reply to Professor Freer, 40 Emory L.J. 943, 960 n.90
(1991). In reading the clear language of the statute in the same way
that the esteemed drafters of § 1367(a) do, we reach the conclusion
they concede to be inescapable.
We have no idea whether, as the drafters intimate, Congress made
a "mistake" or "oversight" here. It is not implausible to believe that
the legislature desired a single class action, even one in diversity, to
be resolved in a single judicial setting. Additionally, Congress may
have, rightly or wrongly, imputed a bias in state court against certain
out-of-state defendants which it sought to counteract by fortifying
diversity jurisdiction. The point is that Congress can take such steps.
And in exercising its constitutional prerogatives, Congress is even
free to incur the displeasure of the bench. "Mistake" or not, we know
that it is not our job to "correct" what Congress has done. The illegiti-
macy of the judiciary’s usurping such a legislative function, either
overtly or through strained statutory construction, is self-evident.
V.
It seems appropriate in conclusion to repair to the simplicity of the
statute. Louise Rosmer is of diverse citizenship and her claim exceeds
the amount in controversy requirement of 28 U.S.C. § 1332. Conse-
quently, federal courts have original jurisdiction over it. Likewise,
due to § 1367, federal courts have supplemental jurisdiction over the
claims of all class members whose claims do not exceed $75,000.
Section 1367(a) permits supplemental jurisdiction over the "other"
related "claims," and § 1367(b) does not except class actions from
§ 1367(a)’s application.
The straightforward nature of the statutory interpretation here is
paralleled by the straightforward route through which Congress can
amend the statute. If Congress wishes to exempt diversity class
actions from supplemental jurisdiction, it need do nothing more than
18 ROSMER v. PFIZER INC.
insert the words "Rule 23" into § 1367(b)’s list of exceptions. See
Finley, 490 U.S. at 556. For us to do so, however, would betray a fun-
damental principle: Fidelity to language lies at the heart of the rule
of law. For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
Because § 1367 unambiguously preserves the rule of Zahn v. Inter-
national Paper Company, 414 U.S. 291 (1973), I respectfully dissent.
I.
Section 1367(a) provides in relevant part:
Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of
which the district courts have original jurisdiction, the dis-
trict courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367 (1994) (emphasis added). Thus, § 1367 clearly
grants federal courts supplemental jurisdiction over certain claims that
are outside the courts’ original jurisdiction.
Just as clearly, however, § 1367 only grants supplemental jurisdic-
tion where there is first a "civil action of which the district courts
have original jurisdiction." Id. No original jurisdiction exists here. In
diversity cases, like the one at hand, federal courts only have original
jurisdiction when the "matter in controversy exceeds the sum or value
of $75,000" and the controversy is between "citizens of different
States." 28 U.S.C. § 1332(a) (1994 & Supp. II 1996). Thus, in diver-
sity cases a federal court cannot exercise supplemental jurisdiction
over a claim unless it first has original jurisdiction over a civil action
ROSMER v. PFIZER INC. 19
"between citizens of different states" in which the "matter in contro-
versy" exceeds $75,000.
Section 1332 does not itself state whether each plaintiff in a diver-
sity case must be a citizen of a different state from each defendant,
or if only one plaintiff need be of diverse citizenship. Nor does § 1332
state whether each plaintiff in a diversity suit must have a claim in
which at least $75,000 is "in controversy," or if all of the plaintiffs’
claims may be aggregated to reach the jurisdictional amount, or if
only one plaintiff need satisfy the "matter in controversy" require-
ment.
Since the earliest years of the Republic, however, the Supreme
Court has interpreted the diversity jurisdiction statute to require com-
plete diversity of citizenship of each plaintiff from each defendant.
See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Moreover,
it has long been the rule that each plaintiff in a diversity suit must
independently satisfy the diversity statute’s jurisdictional amount in
controversy. See Clark v. Paul Gray, Inc., 306 U.S. 583, 589 (1939)
("when several plaintiffs assert separate and distinct demands in a sin-
gle suit, the amount involved in each separate controversy must be of
the requisite amount to be within the jurisdiction of the district
court"); Pinel v. Pinel, 240 U.S. 594, 596 (1916) (same); Troy Bank
v. Whitehead & Co., 222 U.S. 39, 40 (1911) (same). The Court has
reasoned that § 1332’s two requirements — "diversity" and "matter in
controversy" — are jurisdictional, and the statute’s grant of "original
jurisdiction" to federal courts depends upon each and every plaintiff
satisfying each of those requirements.
The Supreme Court has also held that § 1332’s dual requirements
generally apply in diversity-based class actions. Thus, in Supreme
Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 236-67 (1921), the Court
concluded that § 1332 mandates that each named plaintiff must be
completely diverse from each named defendant, although unnamed
plaintiffs need not be diverse. In Snyder v. Harris, 394 U.S. 332
(1969), and Zahn, the Court applied the "matter in controversy"
requirement even more strictly, holding that this requirement applied
to both named and unnamed parties.
20 ROSMER v. PFIZER INC.
In Snyder, the Court concluded that where no members of the
plaintiff class possessed a claim meeting the "matter in controversy"
requirement they could not aggregate their claims; and so a federal
court had no jurisdiction over such a class action. Id. at 336. The
Court relied on the century-long congressional practice of narrowing
rather than expanding diversity jurisdiction. It noted that "since the
first judiciary act in 1789" Congress has repeatedly increased the
amount necessary to meet the "matter in controversy" requirement
and, when doing so, re-enacted the "matter in controversy" rule
"against a background of judicial interpretation" that restrictively con-
strued it. Snyder, 394 U.S. at 333-39. Indeed, as the Snyder Court
explained, Congress had accepted restrictive judicial interpretation of
§ 1332 for so long that this interpretation had to be recognized as
more than a "judge-made formula." Id.1
In Zahn, the Supreme Court considered whether Snyder applied to
diversity-based class actions like the one at issue here, in which only
the named plaintiff satisfied the "matter in controversy" requirement.
See Zahn, 414 U.S. at 292. In determining whether each plaintiff in
the class, named or unnamed, needed to satisfy the "matter in contro-
versy" requirement of § 1332 in order for a federal court to exercise
jurisdiction, the Court looked to its previous interpretations of § 1332
for both class actions and non-class actions. See id. at 295-300. Rely-
ing on its "long standing construction of the ‘matter in controversy’
requirement of § 1332," the Zahn Court concluded that "[e]ach plain-
tiff 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. Id. at 301. In other words, ‘one plaintiff may not ride in on
another’s coattails.’" Zahn, 414 U.S. at 301.
1
The Snyder Court noted that the well-established "congressional pur-
pose" to limit diversity jurisdiction served two salutary goals: (1) limit-
ing the rising caseload of diversity cases so that the federal courts would
not be overwhelmed by state law questions and unable to resolve federal
question cases promptly, and (2) acceding to the "rightful independence
of state governments," which "requires that [federal courts] scrupulously
confine their own jurisdiction to the precise limits which the statute
[§ 1332] defined." Id. at 339-40 (quoting Healy v. Ratta, 292 U.S. 263,
270 (1934)).
ROSMER v. PFIZER INC. 21
In so concluding, the Court made clear that its holding was prem-
ised upon its construction of § 1332’s "matter in controversy" require-
ment. Id. at 299 ("Th[e] doctrine is based . . . upon this Court’s
interpretation of the statutory phrase ‘matter in controversy.’") (quot-
ing Synder, 394 U.S. at 336-67). The Zahn Court found that the lan-
guage of § 1332 was best interpreted to require every class member
to satisfy that requirement; thus, it held, when a plaintiff files a
diversity-based class action in federal court, each member of the class
must allege a claim in which "the matter in controversy" exceeds
$75,000 in order for a federal court to have jurisdiction over the
action. See Zahn, 414 U.S. at 301.
In summary, the Supreme Court has definitively interpreted
§ 1332’s requirements in Strawbridge, Ben-Hur, Snyder and — most
important to this case — Zahn. The Court has not in any way limited
the holding it declared less than thirty years ago in Zahn. Nor has
Congress amended § 1332 to overrule Zahn. This requires us to find
that the rule established in Zahn stands and governs this case. Before
the district court could take advantage of § 1367’s grant of supple-
mental jurisdiction, it first must have possessed jurisdiction over the
action under § 1332. However, because not every member of the class
in this diversity-based class action "satisf[ies] the jurisdictional
amount," Zahn, 414 at 301, the district court possessed no original
jurisdiction over the action under § 1332, and so could not exercise
supplemental jurisdiction under § 1367.
II.
Nevertheless, Pfizer maintains, and the majority holds, that when,
in 1990, Congress enacted the supplemental jurisdiction statute, 28
U.S.C. § 1367, it legislatively overruled Zahn. Nothing in § 1367
remotely suggests that this statute eliminates or modifies any of the
requirements for original diversity jurisdiction that the Supreme Court
has long held mandated by § 1332. Rather, without in any way quali-
fying or limiting § 1332’s requirement, § 1367 specifically refers to
§ 1332 as a possible basis for the original jurisdiction necessary to
any "supplemental jurisdiction." See 28 U.S.C. § 1367(b). The majori-
ty’s holding that Congress chose § 1367 as a vehicle to overrule Zahn,
a case interpreting § 1332, is therefore puzzling.
22 ROSMER v. PFIZER INC.
To accomplish this incongruous result, the majority must look past
the Supreme Court’s clear and definitive interpretations of § 1332 and
break off the claims of some plaintiffs from those of the other plain-
tiffs in the class. This approach essentially queries whether any of the
plaintiffs in the class could have — had they foregone a class action
— brought a proper diversity suit in federal court against the named
defendants. If the district court would have had original jurisdiction
over such a hypothetical suit, the majority would allow § 1367 to pro-
vide supplemental jurisdiction over the remaining class members.
This approach puts the proverbial cart before the horse. In a diversity-
based class action, no federal jurisdiction exists at all unless and until
the requirements of § 1332, including those set forth in Zahn, have
been satisfied.
This is not to say that § 1367 requires a district court to assess
"original jurisdiction over the whole action at the initiation of a com-
plaint" in every case, regardless of the claims set forth in the com-
plaint. Ante at 7 (describing the rationale in Leonhardt v. Western
Sugar Co., 160 F.3d 631, 640 (10th Cir. 1998)). However, a district
court surely must examine a complaint in which the asserted basis of
federal jurisdiction is diversity of citizenship to determine whether the
complaint meets § 1332’s jurisdictional prerequisites. Moreover, fol-
lowing this procedure — which is, after all, the established means of
assessing diversity jurisdiction — does not render "superfluous" the
language in § 1367(a) giving courts supplemental jurisdiction over
"‘all other claims that are so related to claims in the action within
such original jurisdiction.’" Ante at 8 (quoting 28 U.S.C. § 1367 (a)).
That statutory language retains important meaning; it permits supple-
mental jurisdiction over claims in non-diversity cases and, subject to
the limitations in § 1367(b), over additional claims in diversity cases
after a proper diversity complaint has been filed.
Nor does retaining the Zahn rule affect the holdings in United Mine
Workers of America v. Gibbs, 383 U.S. 715 (1966), and Finley v.
United States, 490 U.S. 545 (1989). Cf. ante at 9-10. Gibbs is a fed-
eral question case and Finley was brought under the Federal Tort
Claims Act. Neither is a diversity case. The distinction between fed-
eral question cases (or, for that matter, any case with a federal juris-
dictional basis other than § 1332) and diversity cases is critical.
Federal question cases do indeed involve one federal "claim" creating
ROSMER v. PFIZER INC. 23
jurisdiction, which is viewed independently from other claims in the
complaint that are premised upon supplemental jurisdiction. This is
because a federal court’s jurisdiction in federal question cases cannot
be destroyed by the identity or claims of other parties in an action. In
contrast, a federal court’s jurisdiction in a diversity case wholly turns
on the identity and claims of the parties.
Furthermore, the linchpin of the majority’s statutory analysis —
reliance on the prohibitions listed in § 1367(b) — fatally undermines,
rather than supports, the majority’s holding.
Section 1367(b) provides:
In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons
made parties under Rule 14, 19, 20 or 24 of the Federal
Rules of Civil Procedure, or over claims by persons pro-
posed to be joined as plaintiffs under Rule 19 of such rules,
or seeking to intervene as plaintiffs under Rule 24 of such
rules, when exercising supplemental jurisdiction over such
claims would be inconsistent with the jurisdictional require-
ments of Section 1332.
28 U.S.C. § 1367(b).
The majority maintains that because "nowhere in § 1367(b) does it
exempt from the normal rules of supplemental jurisdiction persons
made parties under Rule 23," a court would have to "rewrite the stat-
ute to insert Rule 23 into § 1367(b)’s list of exceptions" to retain
Zahn. Ante at 7. But this is certainly not the case if "original jurisdic-
tion" in § 1367(a) is given its natural meaning; in diversity cases, that
meaning is the one authoritatively determined by the Supreme Court
in Strawbridge, Ben-Hur, Snyder, Zahn, etc. Indeed, the omission of
Rule 23 from § 1367(b)’s list is hardly surprising given that the diver-
sity jurisdiction requirements, as articulated in these cases, was codi-
fied in the "original jurisdiction" requirement of § 1367(a). Moreover,
this reading of § 1367(a) does not render § 1367(b)’s various prohibi-
tions on supplemental jurisdiction unnecessary because § 1367(b)
24 ROSMER v. PFIZER INC.
bars parties, after the action has commenced, from invoking supple-
mental jurisdiction over claims they could not have asserted, consis-
tent with diversity jurisdiction requirements, at the outset.2
On the other hand, if the majority were correct and § 1367(a) did
not recognize the diversity jurisdiction requirements authoritatively
set forth by the Supreme Court in Strawbridge, Zahn, etc., then
§ 1367(b)’s limited use of Rule 20 — only to prevent district courts
from exercising supplemental jurisdiction over the permissive joinder
of "claims by plaintiffs against persons made parties," i.e., claims
against defendants — would wreak havoc. The majority contends
that, if one plaintiff satisfies the requirements of § 1332, the district
court possesses original jurisdiction under that statute and so may
exercise supplemental jurisdiction under § 1367 over related claims.
If the majority were correct, then § 1367 would permit a plaintiff
meeting § 1332’s jurisdictional requirements to use Rule 20 to join as
a plaintiff any party who possesses a related claim even if that plain-
tiff destroyed complete diversity.
The majority’s approach strips § 1367(b) of all logic. To take that
approach, we must believe that Congress fashioned a statute that care-
2
Specifically, § 1367(b) prohibits supplemental jurisdiction over
claims of would-be plaintiffs, who attempt to join an ongoing diversity
action under Rule 19 or to intervene in such an action under Rule 24,
when the presence of these plaintiffs would destroy diversity jurisdiction,
i.e., would be "inconsistent with the jurisdictional requirements of sec-
tion 1332." 28 U.S.C. § 1367(b). Section 1367(b) also prevents plaintiffs
in an ongoing diversity action from employing supplemental jurisdiction
to assert claims "inconsistent with the jurisdictional requirements of"
§ 1332, id., by barring plaintiffs from asserting claims against non-
diverse defendants who intervene under Rule 24, are impleaded under
Rule 14, joined under Rule 19, or joined to a cross-claim or counterclaim
under Rule 20. (Thus, contrary to the majority’s assertion, ante at 9, the
inclusion in § 1367(b) of a prohibition on supplemental jurisdiction over
claims against non-diverse defendants under Rule 20 does, indeed, serve
a valid "need," i.e. prohibiting counter and cross-claims by plaintiffs
against defendants brought into an existing diversity action. See Fed. R.
Civ. Pro. 13(h) ("Persons other than those made parties to the original
action may be made parties to a counterclaim or cross-claim in accor-
dance with the provisions of Rules 19 and 20.").)
ROSMER v. PFIZER INC. 25
fully preserves limitations on diversity jurisdiction after an action has
been filed (by barring plaintiffs from using Rules 14, 19, and 24 to
join claims against non-diverse defendants and by barring would-be
non-diverse plaintiffs from joining or intervening in an ongoing diver-
sity action under Rules 19 and 24), yet permits persons whose claims
would defeat diversity to join an action at the outset (by allowing a
non-diverse plaintiff to use Rule 20 to join a diversity action at its
commencement). Furthermore, if the majority were correct,
§ 1367(b)’s prohibition on would-be non-diverse plaintiffs joining an
action under Rule 19 or intervening under Rule 24 would be hollow
indeed; a plaintiff could simply dismiss his original action and refile,
joining the non-diverse plaintiff under Rule 20 — even though that
non-diverse plaintiff could not have joined the original action under
Rule 19, or intervened under Rule 24.
Moreover, under the majority’s interpretation, § 1367 overrules not
just Zahn, but also the venerable precedent established almost 200
years ago in Strawbridge v. Curtiss. Before today, plaintiffs have not
been allowed to use ancillary or pendent jurisdiction to circumvent
Strawbridge.3 But, if the majority’s approach is followed, plaintiffs
3
The sole exception to Strawbridge’s well-established restrictive inter-
pretation of § 1332 is Ben-Hur (unnamed plaintiffs in diversity-based
class actions need not have diverse citizenship). Without explanation, the
majority and Professor Moore suggest that it is impossible to interpret
§ 1367 to preserve both Ben-Hur and Zahn. See ante at 11 n.4 (quoting
16 James W. Moore, et al., Moore’s Fed. Practice ¶ 106.44 at 106-33 (3d
ed. 1998). Although I hate to disagree with such respected authorities as
my colleagues and Professor Moore, the plain textual reading of § 1367,
which I espouse, preserves both Ben-Hur and Zahn. Both cases interpret
the diversity jurisdiction requirements in § 1332; to exercise original
diversity jurisdiction under § 1332, a court must follow both cases, and
thus for a court with diversity jurisdiction to exercise supplemental juris-
diction under § 1367, it must, by definition, also follow both Ben-Hur
and Zahn. Nor is there anything untoward about this. Indeed, to preserve
the Ben-Hur holding but eliminate Zahn, which the majority apparently
proposes, would itself be untoward — striking a substantial and totally
unnecessary blow to the prerogatives of the states. As the Supreme Court
noted in Snyder, in words equally applicable here, for a court to adopt
an expansive interpretation of the amount in controversy requirement, as
the majority does, when, because of the Ben-Hur rule, "only one member
of the entire class is of diverse citizenship could transfer into the federal
courts numerous local controversies involving exclusively questions of
state law." Snyder, 394 U.S. 340.
26 ROSMER v. PFIZER INC.
could do precisely this. No longer would plaintiffs need to concern
themselves with establishing complete diversity. Rather, the presence
of one diverse plaintiff would allow joinder of any related claims by
non-diverse plaintiffs. Instead of acceding to the "rightful indepen-
dence of state governments," by "scrupulously confin[ing]" federal
diversity jurisdiction, the majority interprets § 1367 in a way that
allows the federal courts to determine countless local controversies,
involving only state law questions. Snyder, 394 U.S. at 340.
In addition to upsetting long-established precedent, the majority’s
interpretation utterly conflicts with the steadfast Congressional policy
of restricting, rather than expanding, diversity jurisdiction. The major-
ity’s holding would be remarkable even if compelled by the statutory
text. But nothing in § 1367 requires this holding. Indeed, it runs
directly counter to the statute’s plain language, which permits a fed-
eral court to exercise supplemental jurisdiction only when it first has
"original jurisdiction" over a claim.
Nor does the majority’s approach find any support in § 1367’s leg-
islative history. Congress enacted § 1367 in response to a suggestion
of the fifteen-member Federal Courts Study Committee, which had
been established by Congress "to make a complete study of the courts
of the United States and of the several States and transmit a report to
the President, the Chief Justice of the United States, [and] the Con-
gress . . . on such study." Federal Courts Study Act, Pub. L. No. 100-
702, §§ 101-109, 102 Stat. 4642 (1988). After months of study,
numerous meetings, and four public hearings, the Committee issued
its 200-page report. That report found that the federal courts faced a
"crisis" because of a "rapidly growing and already enormous
caseload," and recommended that to address this problem, Congress
severely curtail federal diversity jurisdiction. Report of the Federal
Courts Study Committee at 4, 14-15 (April 2, 1990). The Study Com-
mittee noted that if Congress followed this recommendation it would
"free up the time of the federal courts" to be "more effective protec-
tors of federal rights"; among the recommendations offered to further
this goal was "placing a firm statutory foundation under ‘pendent
party jurisdiction.’" Id. at 15; see also id. at 47-48. Congress drafted
§ 1367 to adopt the recommendation as to "pendent party jurisdic-
tion," which was partially based on disagreement with Finley v.
United States, 490 U.S. 545 (1989) (holding pendent party jurisdic-
ROSMER v. PFIZER INC. 27
tion unavailable in a federal question case). See H.R. Rep. No. 101-
734, reprinted in 1990 U.S.C.C.A.N. 6860, 6873 ("This section
implements a recommendation of the Federal Courts Study Commit-
tee found on pages 47 and 48 of its Report.").
Although it is clear that Congress did not determine to accept the
Study Committee’s suggestion to curtail diversity jurisdiction, it is
equally clear that Congress did not determine to expand diversity
jurisdiction by enactment of § 1367, as the majority’s interpretation
of that statute would. See H.R. Rep. No. 101-734, reprinted in 1990
U.S.C.C.A.N. 6860, 6875 (explaining § 1367 "is not intended to
affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity-
only class actions, as those requirements were interpreted prior to
Finley"). Indeed, the House Report accompanying § 1367 (which was
adopted by the Senate Judiciary Committee in its consideration of the
proposed legislation, see 136 Cong. Rec. S17580-81 (daily ed. Oct.
27, 1990)), plainly states that the new statute was merely intended to
"restore the pre-Finley understandings of the authorization for and
limits on other forms of supplemental jurisdiction." H.R. Rep. No.
101-734, reprinted in 1990 U.S.C.C.A.N. 6860, 6874. Moreover, the
Report includes an express notation that Zahn was to survive enact-
ment of § 1367. Id. at 6875 n.17. This is more than a vague and iso-
lated comment or a mere "buried reference in a committee report." Cf.
ante at 16. Congress has — in the official committee report accompa-
nying the statute which both Houses adopted — expressly provides
that § 1367 was not "to affect the jurisdictional requirements" of
§ 1332 and that Zahn was to survive the enactment of § 1367.4
The majority’s interpretation of § 1367 also calls attention to the
omission in the legislative history of even a suggestion that Congress
intended § 1367 to eviscerate 200 years of diversity jurisprudence
4
Lest there be a suggestion that my membership on the Federal Courts
Study Committee has led me to an unprincipled acceptance of its views,
I note that as a member, I voted against its recommendation that Con-
gress limit diversity jurisdiction. See Report of the Federal Courts Study
Committee at 42-43. Although the result the majority reaches today may
better accord with my personal policy views, I cannot concur in its hold-
ing given the clear statutory language adopted by the appropriate policy-
maker — the Congress.
28 ROSMER v. PFIZER INC.
going back to Strawbridge. The impact of the majority’s approach is
staggering and totally at odds with a continuous congressional policy
— before and after enactment of § 1367 — to limit diversity jurisdic-
tion. See, e.g., Pub. L. No. 85-554 (raising jurisdictional amount from
$3,000 to $10,000 in 1958); Pub. L. No. 100-702 (raising jurisdic-
tional amount from $10,000 to $50,000 in 1988); Pub. L. No. 104-317
(raising jurisdictional amount from $50,000 to $75,000 in 1996). One
would think that had Congress embarked upon such an important
reversal of course, its actions would have generated at least some dis-
cussion and debate. Instead, we find not even a snippet of legislative
history — not a remark at a hearing, not a passage in a committee
report, not a floor comment — suggesting that in § 1367 Congress
intended to overrule Strawbridge and Zahn and so broadly expand the
diversity jurisdiction of the federal courts. Indeed, § 1332’s original
jurisdiction requirements were "so plainly etched in the federal courts
prior to [the enactment of § 1367] that had there been any thought of
departing from these decisions . . . some express statement of that
intention would surely have appeared, either in the [statute] or in the
official commentaries." Zahn, 414 U.S. at 302; see also Edmonds v.
Compagnie Generale Transatlantique, 443 U.S. 256, 266-67 (1979)
(such "silence" in legislative history "is most eloquent, for such reti-
cence while contemplating an important and controversial change in
existing law is unlikely").
III.
In short, the majority today fashions an interpretation of § 1367
that derives support from neither its text nor its history; in result, the
majority creates a law that Congress never enacted and never intended
to enact. There is no reason why this court should interpret § 1367 in
a manner contrary to its language, particularly when the statute’s leg-
islative history, as well as longstanding congressional policy limiting
diversity jurisdiction, confirm the correctness of an interpretation that
gives effect to the plain statutory language. Accordingly, I respect-
fully dissent.