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ACORD v. MCLAUGHLIN CONSTR. MGMT. CORP.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 1, 1985

SUZANNE ACORD, Individually; as Legal and Personal Representative of the Estate of Lawrence Dale Acord, Deceased; and as Mother and Next Friend of Leslie G. Acord and Lawrence B. Acord, Minors, Plaintiff
v.
McLAUGHLIN CONSTRUCTION MANAGEMENT CORPORATION A.K.A. "MCL", 1416 U Street, N.W., Washington, D.C. 20009, SERVE: C.T. Corporation Systems, 1030-15th Street, N.W., Washington, D.C. 20005 and SCHUBERTH CORPORATION, P.O. Box 475, Flowery Branch, Georgia 30542, SERVE: Helmut Leith, President, 2523 Thompson Overlook, Gainesville, Georgia and MELLON STUART COMPANY, One North Shore Center, Pittsburgh, Pennsylvania 15212, SERVE: David Figgins, President, Mellow Stuart Co., One North Shore Center, Pittsburgh, PA 15212 and DISTRICT OF COLUMBIA, SERVE: Gary P. Freeman, Office of the Corporation, Counsel, 1350 Pennsylvania Ave., N.W., Washington, D.C. and V.V.K.R., 901 N. Pitt Street Alexandria, Virginia 22314, SERVE: William Vosbeck, President, V.V.K.R., 901 N. Pitt Street, Alexandria, Virginia 22314 and DEVROUX & PURNELL, 1215 Connecticut Avenue, N.W., Washington, D.C. 20036, SERVE: Marshall Purnell, 1215 Connecticut Ave., N.W., Washington, D.C. 20036 and ROBERT T. COLES ARCHITECT, 730 Ellicot Square Buffalo, New York 14203, SERVE: Robert T. Coles, 730 Ellicot Square Buffalo, New York 14203, Defendants. SUZANNE M. ACORD, Individually; as legal and personal representative of the Estate of Lawrence Dale Acord, Deceased; and as Mother and Next Friend of Leslie G. Acord and Lawrence B. Acord, Minors, 2610 Overdale Place, Forestville, Maryland 20028, Plaintiffs v. MCLAUGHLIN CONSTRUCTION MANAGEMENT CORPORATION, A/K/A "MCL", 1416 U Street, N.W., Washington, D.C. 20009, Defendant and Third-Party Plaintiff and SCHUBERTH CORPORATION, P.O. Box 475, Flowery Branch, Georgia 30542, Defendant v. SHERMAN R. SMOOT COMPANY, 1133-15th Street, N.W. Washington, D.C., Third-Party defendant

Oberdorfer, Judge.

The opinion of the court was delivered by: OBERDORFER

OBERDORFER, Judge

AMENDED COMPLAINT FOR NEGLIGENCE, BREACH OF WARRANTY AND STRICT LIABILITY (Wrongful Death and Survival Action)

 1. Jurisdiction of this Court is based upon diversity of citizenship and amount in controversy pursuant to 28 U.S.C.

 THIRD PARTY COMPLAINT

 1. Plaintiffs herein have brought this action for alleged damages. A copy of the Complaint is attached as Exhibit A.

 MEMORANDUM

 This action is brought for negligence, breach of warranty and strict liability against a number of defendants for an alleged construction site accident which occurred in the District of Columbia. One defendant, the District of Columbia, has filed a motion to dismiss, arguing that this Court lacks jurisdiction over it as a defendant.

 The federal diversity jurisdiction statute provides:

 

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 10,000, exclusive of interest and costs, and is between--

 

(1) citizens of different States;

 

(2) citizens of a State and citizens or subjects of a foreign state; and

 

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

 

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

 28 U.S.C. § 1332(a) (1982). Section 1132(d) specifically provides that "the word 'States,' as used in this section includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico." A "State" is not a "citizen" for purposes of federal diversity jurisdiction. Moor v. County of Alameda, 411 U.S. 693, 717, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973). Consequently, federal diversity jurisdiction does not exist between the District of Columbia and a citizen of another state. Mann v. District of Columbia, 742 F.2d 750 (3d Cir. 1984); Stewart v. District of Columbia, No. 77-1430, unpublished judgment (D.C. Cir. 1978); Davis v. District of Columbia, No. 84-3015, slip op. (D.D.C. 1984); Daley v. District of Columbia, No. 82-1245, unpublished order (D.D.C. 1982); District of Columbia v. L.B. Smith, Inc., 474 F. Supp. 894 (D.D.C. 1979).

 Plaintiff does not claim that federal diversity jurisdiction under 28 U.S.C. § 1332(a) exists between herself and the District of Columbia. She claims, however, that she can add the District of Columbia to her complaint as a "pendent party."

 The Supreme Court in Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), distinguished between pendent claim jurisdiction as authorized in United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) and pendent party jurisdiction:

 

The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." [ Gibbs, supra, 383 U.S. at 725]. True, the same considerations of judicial economy would be served insofar as plaintiff's claims "are such that he would ordinarily be expected to try them all in one judicial proceeding . . . ." Ibid. But the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress.

 427 U.S at 14-15. In order for a federal court to exercise jurisdiction over a "pendent" party:

 

a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.

 Id. at 18.

 The Supreme Court in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978), held that a federal court cannot assert jurisdiction over a pendent party where the party is a citizen and the addition would destroy complete diversity. The Kroger court found that by requiring complete diversity in the statute, Congress had implicitly negated jurisdiction between nondiverse parties. According to the Kroger court:

 

Congress has established the basic rule that diversity jurisdiction exists under 28 U.S.C. § 1332 only when there is complete diversity of citizenship. "The policy of the statute calls for its strict construction." . . . To allow the requirement of complete diversity to be circumvented as it was in this case would simply flout the Congressional command.

 437 U.S. at 377 (citations omitted) (footnote omitted).

 Plaintiff argues that a different result should be reached in this case because the party she seeks to add is not a citizen, but is a "stateless" party. See Rieser v. District of Columbia, 183 U.S. App. D.C. 375, 563 F.2d 462, 470 (D.C. Cir. 1977), vacated, reinstated in part, 188 U.S. App. D.C. 384, 580 F.2d 647 (D.C. Cir. 1978) (en banc). *fn1" The Rieser case relied upon by plaintiff had analyzed the legislative history and concluded that Congress had not implicitly negated the existence of pendent party jurisdiction over the District of Columbia in an action where federal jurisdiction is based on diversity. The decision was vacated, and upon rehearing en banc the Court did not reach the issue of the District of Columbia's status as a pendent party. In a long footnote, however, the Court of Appeals discussed the issue:

 

Assuming that Congress neither authorized nor expressly rejected such jurisdiction, however, the question of negation "by implication" remains. As to that question, commentators have wondered at the curious task put by Aldinger of deciding when Congress, by failing to extend federal jurisdiction over certain parties, nonetheless did not intend implicitly to negate jurisdiction over them. See, e.g., Note, Law-Tied Pendent Jurisdiction Gibbs and Aldinger Reconsidered, 87 Yale L.J. 627, 646-47 (1978). In any case, some post-Aldinger courts and commentators have found the requisite negative intent as to parties who do not meet one of the requisites of the federal diversity statute, Fawvor v. Texaco, Inc., 546 F.2d 636 (5th Cir. 1977); Note, Aldinger v. Howard and Pendent Jurisdiction, 77 Colum. L. Rev. 127, 147 & n.107; Note, 55 Texas L. Rev. 941, 949-50 (1977), and in other situations where legislative negation of jurisdiction is hardly express, Aldamuy v. Pirro, 436 F. Supp. 1005 (N.D.N.Y. 1977); Long Prarie Packing Co. v. Midwest Emery Freight System, 429 F. Supp. 201 (D. Mass. 1977). On the other hand, the legislative intent, discussed in note 7 supra, behind the 1948 revision of 28 U.S.C. § 1332, although clearly aimed at negating all diversity jurisdiction over suits against states and territories, is silent as to any like intent regarding the District of Columbia.

 580 F.2d at 653 n.8 (citation omitted). Footnote 7 of the Rieser decision noted:

 

Although the words of the revised statute appear to put the District, as well as the territories and Puerto Rico, on a par with the states -- unless the municipality of the District of Columbia is deemed a citizen of the federally controlled geographical entity by the same name . . . -- the history of the modern provision is arguably silent as to the District's potential status as a diversity litigant.

 Id. at 653 n.7.

 The en banc Court of Appeals in Rieser thus hinged the resolution of this pendent party issue on the District of Columbia's status as a diversity litigant. Since Rieser, however, our Court of Appeals has summarily affirmed a District Court's dismissal of an action because the District of Columbia was not a proper defendant under § 1332. *fn2" Stewart v. District of Columbia, supra. Since the Court of Appeals' affirmance, other District of Columbia District Courts have followed suit. Davis v. District of Columbia, supra; Daley v. District of Columbia, supra; District of Columbia v. L.B. Smith, Inc., supra. This issue decided, the vacated decision in the original Rieser case should no longer be controlling. *fn3" But see Biscoe v. Arlington County, No. 80-0766, slip op. (D.D.C. 1981). *fn4"

 Under the theory enunciated in Kroger, supra, there appears little basis for the distinction pressed by plaintiff. *fn5" Both of the factors found important by the Kroger court are present in this case. First, the claim asserted against the District of Columbia is not ancillary in the sense of being logically dependent, but is in fact "new and independent." 437 U.S. at 376. Second, "the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to bring suit upon a state-law claim in a federal court." Id. Plaintiff "cannot complain" that jurisdiction is limited, since she "has chosen the federal rather than the state forum and must thus accept its limitations." Id.6

 In Aldinger, supra, as well as in Kroger, the Supreme Court found that Congress had by implication negated the existence of jurisdiction over non-diverse parties. 427 U.S. at 19. The Court found this implicit negation because Congress specifically listed the parties between whom diversity jurisdiction should exist. Why a court should distinguish between one requirement -- that citizens be from different states -- and another -- that citizens cannot sue states under diversity jurisdiction -- is unclear. The intent of Congress is clear in either case -- to limit federal court jurisdiction to those situations specifically enumerated in the statute.

 The analysis in Aldinger and Kroger, as opposed to the vacated reasoning of Reiser should control. Accordingly, an accompanying order will grant defendant's motion to dismiss.

 ORDER

 For reasons stated in the accompanying Memorandum, it is this 31st day of October, 1985, hereby

 ORDERED: that the Motion of Defendant District of Columbia to Dismiss the Amended Complaint Against It is hereby GRANTED.

 ORDERED: that plaintiff's Amended Complaint For Negligence, Breach of Warranty and Strict Liability as to defendant the District of Columbia is hereby DISMISSED with prejudice.


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