remained dormant for four years. Then several defendants filed motions to dismiss the remaining claims. Plaintiff, candidly admitting that the complaint did not assert expressly or impliedly a cause of action under RESPA, responded with a motion to remand, which the Court granted since no other basis of federal jurisdiction affirmatively appeared.
Now moving for reconsideration, several defendants argue that, notwithstanding plaintiff's disavowal of any intent to state a cause of action under RESPA, the Court should contrive one and then dismiss it. Mere statement of the proposition provides its own refutation. If the Court lacks jurisdiction, it must remand the matter to state court. Fleming v. Mack Trucks, 508 F. Supp. 917, (E.D.Pa. 1981), Lang v. Windsor Mount Joy Mutual Insurance Co., 507 F. Supp. 967 (E.D.Pa. 1981). By discerning a federal cause of action where plaintiff has denied one, defendant cannot create federal jurisdiction. Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 89 S. Ct. 1487, 23 L. Ed. 2d 9 (1969), Lang v. Windsor Mount Joy Mutual Insurance Co., 487 F. Supp. 1303 (E.D.Pa.), aff'd, 636 F.2d 1209 (3d Cir. 1980).
Alternatively, defendants contend that several antitrust counterclaims provide a basis for federal jurisdiction. Unfortunately, defendants failed to mention or argue this point previously. True, the Court has a duty to monitor the adequacy of federal jurisdiction, Mount Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), ACandS, Inc. v. Aetna Casualty & Surety Co., 500 F. Supp. 511 (E.D.Pa.1980), Carey v. Beans, 500 F. Supp. 580 (E.D.Pa.1980), but litigants have a duty "to make clear the basis of jurisdiction over the action", Grise v. Combs, 183 F. Supp. 705, 707 (E.D.Ky.1960), and to adduce the relevant facts needed for decision. Corsette v. Johns-Manville Corp., No. 78-3070 (E.D.Pa. January 27, 1981). In any event, defendants cannot predicate federal jurisdiction on the basis of a counterclaim. Defendants rely exclusively upon Kline v. Murray, 7 F.2d 404 (D.Mont.1925), which, admittedly, held that a counterclaim can confer jurisdiction. Undoubtedly, however, the court misapprehended the import of Merchants Heat & Light Co. v. James B. Clow & Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488 (1870), which concluded that the defendant's counterclaim rendered it amenable to the court's in personam jurisdiction. The defendant sacrificed no rights by pleading to the merits, the court reasoned, but, by filing the counterclaim, he assumed the position of a plaintiff and therefore could be deemed to have consented to the court's exercise of personal jurisdiction over him. 204 U.S. at 289-90. In the case at bar, defendants seek to apply this reasoning to subject matter jurisdiction.
The Court of Appeals repudiated such a notion more than a half century ago in Home Life Insurance Co. v. Sipp, 11 F.2d 474, 476 (3d Cir. 1926), where the court remarked:
Here we are concerned with the act of a party filing a counterclaim in a case where, because not within the statute, the court did not have jurisdiction of the subject matter. A party may appear and plead and thereby cure a defective service, but it can not by filing a counterclaim give jurisdiction to a court when a statute denies its jurisdiction. In other words, a defendant's consent to the court's jurisdiction ... can not confer jurisdiction, it is conferred by statute alone; ...