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BURKETT v. WESTERN MARYLAND RY. CO.

October 18, 1984

Robert I. BURKETT, Plaintiff,
v.
WESTERN MARYLAND RAILWAY CO., Walter N. Yoder and Sons, Inc., and Westvaco Corporation, Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Defendants, Walter N. Yoder & Sons, Inc. (Yoder) and Westvaco Corporation (Westvaco), have moved pursuant to Fed.R.Civ.P. 12(b) to dismiss plaintiff's amended complaint against them for lack of complete diversity between the parties. *fn1" For the reasons set forth below, we grant the motion as to Yoder and deny it as to Westvaco.

 Plaintiff's complaint alleges that he is a citizen of Maryland (para. 7), Westvaco is a Delaware corporation with its principal place of business in New York (para. 8), and Yoder is a Maryland corporation with its principal place of business in Maryland. (para. 14). Plaintiff alleges he suffered personal injuries while working on the lines of the co-defendant, Western Maryland Railway Corporation (Western Maryland) as a result of the negligence of the three defendants. Jurisdiction over Western Maryland is predicated upon the Federal Employers' Liability Act (F.E.L.A.) 45 U.S.C. § 51 et seq.

 Yoder and Westvaco contend that jurisdiction is lacking over them because Yoder and the plaintiff are both residents of Maryland. Hence, complete diversity between the parties is missing here and the complaint against the defendants must be dismissed. See Schultz v. Cally, 528 F.2d 470 (3d Cir.1975).

 In rebuttal, plaintiff contends that diversity is established as to Westvaco, a Delaware corporation with its principal place of business in New York, see 28 U.S.C. § 1332(c), and that jurisdiction may be properly exercised over Yoder under the principal of pendent party jurisdiction.

 Pendent party jurisdiction addresses the issue of whether a district court may exercise jurisdiction over a plaintiff's nonfederal claim against a person as to whom no independent basis of federal jurisdiction exists when federal jurisdiction over another defendant is proper. See Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976); Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir.1979). Plaintiff cites Sparks v. Hershey, 661 F.2d 30 (3d Cir.1981), and Lentino, supra, in support of his contention that jurisdiction over Yoder is proper here. Those cases are inapposite, however, because they both deal with pendent jurisdiction over plaintiff's nonfederal claim against a defendant already properly in the district court on plaintiff's federal cause of action against him. In the context of those cases, it was proper to assert jurisdiction using the test, quoted by plaintiff on page 3 of his brief, set forth as follows:

 
Federal courts have the constitutional power to exercise pendent jurisdiction when the state and federal claims 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 when the federal claim has sufficient substance to confer subject matter jurisdiction on the court.

 Lentino, supra, at 478 (emphasis in original) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). As noted by the Court, however, in Aldinger v. Howard, supra :

 
From a purely factual point of view, it is one thing to authorize two parties, already present in a 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 implead 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." . . . 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. . . ." . . . 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, 96 S. Ct. at 2420, 49 L. Ed. 2d at 286-87.

 After Sparks, supra, and Lentino, supra, the Third Circuit Court of Appeals set forth a comprehensive test for determining when a court may appropriately exercise pendent jurisdiction. The "three-tiered" analysis, incorporating the Supreme Court's pendent party jurisdictional cases, Aldinger, supra, and Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978), is appropriate for the specific determination of when pendent party jurisdiction is proper. The test is as follows:

 
On the first level, a court must determine whether it has constitutional power to determine a state-law claim. This "power" test depends on whether there is a "common nucleus of operative fact" between the state claim at issue and the accompanying federal claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). As we see it, Gibbs provides the unifying principle which limits the extent of federal jurisdiction over both pendent and ancillary claims. The second level requires the court to determine whether the exercise of jurisdiction at issue would violate a particular federal policy decision, such as the requirement of complete diversity or the explicit exclusion of a particular party from federal liability for the actions alleged in the complaint. At this level, the court may consider whether the plaintiff's assertion of ancillary or pendent jurisdiction is an attempt to manufacture federal jurisdiction where it is otherwise foreclosed by the relevant statutes. The issue generally turns on statutory interpretation. The final level -- prudential in character -- is for the district court, in its discretion, to weigh various factors bearing on the appropriateness of hearing a pendent claim.

 Ambromovage v. United Mine Workers, 726 F.2d 972, 989-90 (3d Cir.1984) (footnotes omitted). The analysis does not have to be performed in the order set forth above, and when the jurisdictional issue can be resolved without deciding the constitutional ...


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