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February 11, 1980

THOMAS DUMANSKY, JR., an infant by his guardians ad litem, THOMAS DUMANSKY, SR., and VIRGINIA DUMANSKY and THOMAS DUMANSKY, SR., and VIRGINIA DUMANSKY, individually, Plaintiffs

The opinion of the court was delivered by: THOMPSON

This matter, coming before the Court on motion for summary judgment, raises important questions about the scope and application of the Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. § 2671 et seq.

Plaintiff Thomas Dumansky, by his parents, seeks damages for injuries sustained on August 17, 1977 when he stepped on a nail protruding from a board located on property adjacent to his home. Plaintiff alleges negligence of one of five named defendants. All defendants have denied negligence and filed cross-claims for contribution pursuant to the New Jersey Tortfeasors Contribution Act. N.J.S. 2A:53A-1, et seq.

 When the accident occurred on August 17, 1977 defendant United States of America (hereinafter "USA"), through the Administrator of Veterans Affairs, owned the property on which plaintiff was injured (hereinafter "the property"). Defendant Larson Mortgage Company had transferred title to USA on July 20, 1977, more than one month before the injury occurred. USA engaged defendant Jenkins-Elek Management, Inc. *fn1" to manage the property. Jenkins-Elek retained defendant Bilodeau to perform work on the property; and it was Bilodeau, plaintiff alleges, who left the board on the ground causing plaintiff's injury.

 Presently before the Court is defendant USA's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Before resolving this motion, however, a threshold jurisdictional issue not raised by the parties must be addressed.




 At the outset we note that the nonfederal defendants have not raised any jurisdictional objection to plaintiff's complaint. Despite the failure of any party to address the jurisdictional issue, however, a federal district court must confront the issue sua sponte. Carlsberg Resources Corp. v. Cambria Sav. & L., 554 F.2d 1254 (3rd Cir. 1977).

This is so because the federal courts are without power to adjudicate the substantive claims in a lawsuit, absent a firm bedrock of jurisdiction. When the foundation of federal authority is, in a particular instance, open to question, it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition on the merits.

 Id. at 1256.

 With this obligation in mind, we proceed to the jurisdictional issue at hand.


 The federal courts are courts of limited jurisdiction. Their authority to adjudicate disputes must be found in congressional grants of jurisdiction and in Article III, section 2 of the Constitution. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372, 98 S. Ct. 2396, 2402, 57 L. Ed. 2d 274 (1978). *fn2" This Court's authority to adjudicate the dispute between plaintiff and defendant USA is not here in question. Jurisdiction is properly invoked under 28 U.S.C. § 1346(b). *fn3" The question is whether the Court has the power to adjudicate the dispute between plaintiff and the nonfederal defendants. Properly viewed, then, this case raises the subtle and complex issue mentioned but not decided by the Supreme Court in Moor v. County of Alameda, 411 U.S. 693, 715, 93 S. Ct. 1785, 1798, 36 L. Ed. 2d 596 (1973), and Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976): Whether the doctrine of pendent jurisdiction confers jurisdiction over nonfederal defendants as to whom no independent basis of jurisdiction exists in an action brought against the United States under the FTCA.


 The doctrines of pendent and ancillary jurisdiction were designed to extend the federal courts' traditional jurisdictional bounds. The existence of "principled differences" between these doctrines is dubious at best; *fn4" and when courts invoke the doctrines, confusion generally prevails. Our examination of the concept of pendent jurisdiction will therefore begin with the concept of ancillary jurisdiction.

 Under the ill-defined concept of ancillary jurisdiction, a district court acquires jurisdiction of a case or controversy in its entirety; and, as an incident to the proper disposition of the matter properly before it, the court may decide related matters raised by the case. See generally 12 Wright, Miller & Cooper, Federal Practice & Procedure § 3523 (1975). If a federal court has jurisdiction over the principal action, then, it may also hear any ancillary proceedings irrespective of the citizenship of the parties, the amount in controversy, or any other factor that might determine the existence of an independent jurisdictional grant. Glus v. G. C. Murphy Co., 562 F.2d 880 (3rd Cir. 1977). *fn5"

 While the doctrine of ancillary jurisdiction was evolving, the doctrine of pendent jurisdiction was unfolding in the federal courts. *fn6" This doctrine generally involves endeavors by plaintiffs to join an independent nonfederal claim with a claim arising under the Constitution, laws, or treaties of the United States.

 The foundation of modern pendent jurisdiction is United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). In adopting a broad definition of the term "case" as used in Article III, the Supreme Court there announced that

(p)endent jurisdiction, in the sense of judicial power, exists whenever . . . the relationship between (the federal) claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case.'

 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966) (emphasis in original). The state and federal claims must derive from a common nucleus of operative fact such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding, and the federal claim must have sufficient substance to confer on the court subject matter jurisdiction over the pendent claim. Id. Gibbs signalled the Court's desire to promote judicial economy, convenience, and fairness to the litigants; specifically, the Court looked to the undesirability of requiring the plaintiff to pursue two overlapping lawsuits or to forego his federal forum. See id. Currie, Pendent Parties, 45 U.Chi.L.Rev. 753 (1978).

 Most courts of appeals considering the issue have had no difficulty extending Gibbs to cases in which an additional party not subject to the federal claim is brought in to answer a state claim. E. g., Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974). This use of pendent jurisdiction has been termed pendent party jurisdiction. As to the question whether a court has the power to entertain pendent party claims in an action brought under the FTCA, the Circuit Courts deciding the question have divided. Compare Ortiz v. United States Government, 595 F.2d 65 (1st Cir. 1979), cert. denied, 444 U.S. 1020, 100 S. Ct. 678, 62 L. Ed. 2d 652 (1980) and Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979) (exercising pendent party jurisdiction in an FTCA action) with Kack v. United States, 570 F.2d 754 (8th Cir. 1978) and Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S. Ct. 1635, 56 L. Ed. 2d 76 (1978) (declining to exercise pendent party jurisdiction in an FTCA action). The Third Circuit has not addressed this issue or set forth the correct measure for determining a court's power to entertain pendent party claims. The governing standards must therefore be determined before deciding whether this Court has the power to entertain such claims.


 We conclude that Gibbs provides the correct measure for determining whether this Court has the power to entertain pendent party claims. This is indeed the holding of the First Circuit Court of Appeals in Ortiz v. United States Government, 595 F.2d 65 (1st Cir. 1979).

 In Ortiz, plaintiffs instituted an action against the United States under the FTCA. The United States filed a third-party complaint seeking indemnification from a nonfederal defendant. This complaint rested upon an independent grant of jurisdiction, 28 U.S.C. § 1345. *fn7" Thereafter plaintiffs sought to amend their own complaint to add a direct claim against the third-party defendant. The district court denied this motion. The First Circuit reversed, holding that the district court had the power to hear the pendent claim and that the Gibbs standards applied on the facts of that case.

 One possible distinction between Gibbs and Ortiz was that Gibbs involved a "(c)ase * * * arising under * * * the Laws of the United States" and Ortiz involved an FTCA action most likely a "controversy to which the United States shall be a party." *fn8" Ortiz v. United States Government, supra at 69. The Court was not persuaded, however, that this distinction was material. True there were authorities for the proposition that the term "controversies" was less comprehensive than "cases." Id., citing, e.g., Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239, 57 S. Ct. 461, 463, 81 L. Ed. 617 (1937); yet these authorities did not justify the conclusion that the scope of a "controversy" for pendent jurisdiction purposes is narrower than the scope of a "case" and that a stricter standard than is set forth in Gibbs should therefore be applied in determining whether Article III bars the exercise of pendent jurisdiction in a "controversy" as opposed to a "case." Chisholm v. Georgia, 2 U.S. (2 Dallas) 419, 430-31, 1 L. Ed. 440 (1793), was the authority traditionally cited for the proposition that a "controversy" is narrower than a "case." The only distinction there made between "cases" and "controversies," however, was that "controversies" referred to civil suits only. Chisolm, then, provided no support for the proposition that civil "controversies" differed from civil "cases." Ortiz v. United States Government, supra at 70. *fn9" The futility of the distinction was further evidenced by the parties' failure to advance policies in support of its use for pendent jurisdiction purposes. *fn10"

 A second arguable distinction between Gibbs and Ortiz was that plaintiff's federal and nonfederal claims in Gibbs were both asserted against the same party; the claims in Ortiz were asserted against different parties. The Court explained that this difference could have been critical had the nonfederal defendant been brought into the case solely as a consequence of plaintiff's nonfederal claim. Id., relying on Moor v. County of Alameda, 411 U.S. 693, 712-15, 93 S. Ct. 1785, 1797-1798, 36 L. Ed. 2d 596 (1973). *fn11" The nonfederal defendant, however, was already a party as a result of the United States's third-party complaint which was founded upon an independent jurisdictional ground, 28 U.S.C. § 1345. The Court thus found no need to decide whether pendent power permits the introduction of a new party into a lawsuit. Instead, the Court held that when a nonfederal defendant was already a party to the suit, Article III did not preclude the exercise of pendent jurisdiction, and the Gibbs standards applied.

 We adopt the Ortiz Court's well-reasoned analysis and conclude that here too, the Gibbs standards apply.

 Admittedly, this case differs from Ortiz in that plaintiff initially named in his complaint both the federal and nonfederal defendants; in Ortiz, the plaintiffs sought to add the nonfederal defendant only after that party had already been impleaded by the United States under an independent jurisdictional statute. The Supreme Court has indeed noted that "a more serious obstacle to the exercise of pendent jurisdiction" exists when the party against whom the pendent claim is ...

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