plaintiff seeks to circumvent the § 1983 limitations relying on the foregoing theory, the action cannot be maintained against the City.
Secondly, plaintiff urges that this Court can still exercise jurisdiction over the City pursuant to the doctrine of pendent jurisdiction which was expanded and clarified in United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-727, 86 S. Ct. 1130, 1138-1139, 16 L. Ed. 2d 218 (1966). But this, too, was an argument advanced, considered and rejected by the Supreme Court in Moor, supra, 411 U.S. 693, 93 S. Ct. at 1796-1797, 36 L. Ed. 2d 596. The Supreme Court re-emphasized that pendent jurisdiction need not be viewed as being one of the plaintiff's mandatory rights, but rather was to be exercised by the respective tribunal in its sound discretion. Moreover, the Court continued, although there may be a "common nucleus of operative fact" it was not an abuse of discretion for the District Court to not invoke pendent jurisdiction when there was no independent federal jurisdictional basis over all the parties on the federal claims. 411 U.S. 693, 93 S. Ct. at 1797, 36 L. Ed. 2d 596. Essentially, the Court found that where you have a party liable only on a state claim but not otherwise amenable to federal jurisdiction, the District Court is not compelled to exercise pendent jurisdiction. Thus consistent with the notions of comity and furthermore to minimize the possibility of jury confusion arising out of the necessity of resolving divergent legal theories as to the liability of the City, the Court here declines to exercise pendent jurisdiction and hold the City in this action as a pendent party.
Evidently in anticipation of this Court's ruling, for the first time since this action was commenced over three years ago, plaintiff now argues in its Supplemental Memorandum in Opposition to the City's Motion to Dismiss that this Court still has jurisdiction over the City pursuant to the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment and 28 U.S.C. § 1331.
In City of Kenosha, Wisconsin v. Bruno, supra, 412 U.S. 507, 93 S. Ct. at 2227, 37 L. Ed. 2d 109, the Supreme Court remanded the action to the District Court for the latter to determine if the jurisdictional requirements of § 1331 were complied with.
This Court recognizes that where a plaintiff in his complaint has pleaded sufficient operative facts vesting or establishing jurisdiction in the Court even absent the recitation of the correct jurisdictional provision, the Court still may retain jurisdiction over the cause of action. See, e.g., Beeler v. United States, 338 F.2d 687, 689 (3rd Cir. 1964); Uhler v. Commonwealth of Pennsylvania, 321 F. Supp. 490 (E.D. Pa. 1970). Procedurally, the Court can now respond either in one of two ways. It can dismiss the action without prejudice to the plaintiff filing a motion to amend the complaint pursuant to Fed. R. Civ. P. 7(b) and 15(a) or it can treat the Supplemental Memorandum as an amendment of the applicable jurisdictional statutes even though there was a noncompliance with the Federal Rules. The former course appears to be more desirable, particularly since the City has not been presented the opportunity to reply to plaintiff's latest legal stratagem.
The City of Philadelphia is being dismissed as a defendant in this action under § 1983. Nonetheless, this dismissal is without prejudice to the plaintiff's filing within ten (10) days from the date of this Memorandum and Order a motion to amend the complaint, specifically incorporating any other jurisdictional statutes. The City can thereafter file an answer or any other responsive pleading within twenty (20) days.
An Order to this effect will be entered.
AND NOW, this 1st day of February, 1974, it is hereby ORDERED that the City of Philadelphia's Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that said Dismissal is without prejudice to the plaintiff's filing within ten (10) days a Motion to Amend the Complaint pursuant to Fed. R. Civ. P. 7(b) and 15(a), specifically incorporating any other applicable jurisdictional statute(s).