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.
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."
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.
The futility of the distinction was further evidenced by the parties' failure to advance policies in support of its use for pendent jurisdiction purposes.
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).
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 asserted is not otherwise subject to federal jurisdiction. Aldinger v. Howard, supra, 427 U.S. at 18, 96 S. Ct. at 2422.
The initial absence of jurisdiction over the nonfederal defendants, however, should not change the result in this case. In an action brought against the United States under the FTCA, the United States may implead a party who may be liable to the United States for all or part of a claim. United States v. Yellow Cab Co., 340 U.S. 543, 551-52, 71 S. Ct. 399, 405, 95 L. Ed. 523 (1951); 28 U.S.C. § 1345. Defendant USA has in fact asserted cross-claims against the nonfederal defendants under the New Jersey Tortfeasors Contribution Act. N.J.S. 2A:53A-1, et seq. Independent jurisdiction for these cross-claims can be invoked under 28 U.S.C. § 1345. It is likely that if the nonfederal defendants had not been named in the complaint, USA would have commenced third-party actions against them. In fact, if the nonfederal defendants are dismissed by the Court, USA will likely bring them before this Court once again by third-party action. To dismiss the nonfederal defendants simply because they were initially named in the complaint rather than added to an amended complaint after being impleaded by USA would be to exalt form over substance; it would "defeat the commonsense policy of pendent jurisdiction the conservation of judicial energy and the avoidance of multiplicity of litigation." Rosado v. Wyman, 397 U.S. 397, 405, 90 S. Ct. 1207, 1214, 25 L. Ed. 2d 442 (1970). Maltais v. United States, 439 F. Supp. 540, 548 (N.D.N.Y.1977).
Indeed, this was the stance adopted most recently in Maltais v. United States, supra. There plaintiff instituted an FTCA action against the United States and seven corporate defendants. The Court held that it had the power to exercise pendent jurisdiction over the nonfederal parties. Id. at 547. The Court's implied but unarticulated view was that Gibbs provided the correct measure for determining whether it could entertain the pendent party claims. In exercising pendent party power, the Court relied in part on its belief that if it had dismissed the nonfederal defendants, the United States would have again brought them before the Court by third-party action. Id. at 548.
It is evident that the ultimate monetary liability of the United States cannot be determined with finality in a single lawsuit unless all the parties to this action are properly brought before this Court.