the court noted that courts should decline to exercise pendent jurisdiction where congressional intent clearly opposes such jurisdiction. Lieb, 538 F. Supp. at 139-140. The court then found that Congress "implicitly" negated pendent jurisdiction of claims for less than $50,000 made under the MMA. Lieb, 538 F. Supp. at 140.
In Brummett v. Skyline Corp., 38 Fed.R.Serv.2d (Callaghan) 1443 (W.D. Ky.1984), the case Plaintiff relies on, plaintiff made a claim for attorney's fees under MMA. After defendant removed the case to federal court on diversity grounds, it sought to have the MMA count dismissed. The court refused, holding that the court should exercise pendent jurisdiction over the MMA claim to prevent the defendant from taking unfair advantage of removal. To decline pendent jurisdiction, the court reasoned, would be to encourage duplicative parallel actions in state and federal court. Brummett, 38 Fed.R.Serv.2d at 1444. We agree with the philosophy expressed by the Brummett court and feel that requiring Plaintiff to pursue the MMA claim in state court would be a wasteful gesture.
We respectfully decline to adopt the rationale of the Lieb court. First, we find no congressional intent opposing the exercise of pendent jurisdiction. In fact, legislative history states that "The purpose of [the Act's] jurisdictional provisions is to avoid trivial or insignificant actions being brought as class actions in the federal courts." House Report No. 93-1107, 4 U.S. Code Cong. & Admin. News, 7702, 7724 (1974). Such intent will not be frustrated in this case since this action was already properly before us on diversity grounds. By exercising pendent jurisdiction, we simply allow the additional MMA claim to be raised in an action already pending. As noted earlier, the issues are the same in this case, and no additional evidence would be required due to the addition of this claim. Joinder of this claim did not lengthen the trial nor affect this court's ability to function efficiently. We concur with the Brummett court's belief that "congressional intent does not dictate our remanding one integrally involved claim to state court, thereby creating the unfavored situation of piecemeal litigation." Brummett, 38 Fed.R.Serv.2d at 1444-45.
Furthermore, the Lieb court's concern that should federal courts exercise pendent jurisdiction of MMA claims, any consumer action could be brought in federal court, pursuant to 28 U.S.C. § 1337 (1976) is unfounded. Section 1337, permitting jurisdiction over civil controversies arising out of an Act of Congress regulating commerce, does not provide a jurisdictional basis independent of those jurisdictional requirements enumerated in the MMA, 15 U.S.C. § 2310(d)(3). Abraham v. Volkswagen of America, Inc., 103 F.R.D. 358, 360 (W.D.N.Y. 1984); Schafer v. Chrysler Corp., 544 F. Supp. 182, 184 (N.D. Ind. 1982); Watts v. Volkswagen Artiengesellschaft, 488 F. Supp. 1233, 1236 (W.D. Ark. 1980). See House Report No. 93-1107, 4 U.S. Code Cong. & Admin. News, pp. 7702, 7724 (1974). See also 32 Federal Procedure, L. Ed. § 75: 441, p. 401 (T. Goger ed. 1985).
Our decision is further supported by the Supreme Court's 6 to 3 decision in Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). In that case, the plaintiff alleged one constitutional claim and another federal question claim which failed to satisfy the then existing amount in controversy requirement. 28 U.S.C. § 1331. Although the statutory claim had no independent jurisdictional basis, the Supreme Court held that the federal court had pendent jurisdiction over that claim, reasoning that consolidating claims within the court's subject matter jurisdiction with claims arising under federal law, but not satisfying the amount-in-controversy requirement of the jurisdictional statutes, enhanced efficiency without the risk of misreading state law or encroaching upon state sovereignty. Lieb, 538 F. Supp. at 139 (citing Hagans, 415 U.S. at 548).
Finally, the fact that Plaintiff did not plead pendent jurisdiction is no bar. Plaintiff's pleading diversity jurisdiction and the facts that arise out of the same nucleus of operating facts is sufficient. See 3A Moore's Federal Practice para. 18.07 [i.-5], pp. 18-65, 67; see also Aguirre v. Automotive Teamsters, 633 F.2d 168, 174 (9th Cir. 1980); Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir. 1979). We believe our exercising pendent jurisdiction over Plaintiff's MMA claim in this case will result in substantial judicial economy and the promotion of justice.
Having found the MMA claim properly before us, we must now consider whether Plaintiff is entitled to attorney's fees under that Act.
Section 2310(d)(2) provides:
If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.