Griffin v. Lee

Case: 09-30734 Document: 00511243201 Page: 1 Date Filed: 09/23/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 23, 2010

No. 09-30734 Lyle W. Cayce
Clerk

SYLVESTER GRIFFIN,

Plaintiff
v.

ROBERT A. LEE,

Intervenor Plaintiff–Appellee

v.

J P MORGAN CHASE & COMPANY, individually & as successor by merger,

Defendant

v.

SYLVESTER GRIFFIN,

Intervenor Defendant–Appellant

Appeal from the United States District Court
for the Western District of Louisiana
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No. 09-30734

Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN * , District
Judge.
PER CURIAM:
Appellee Robert A. Lee, an attorney, represented Appellant Sylvester
Griffin in the underlying lawsuit in this case, in which Griffin sought
reformation of a trust of which he was a beneficiary [the “Trust”]. Griffin also
advanced various state law claims, including fraud, against Defendants below,
who included successor Trustee JPMorgan Chase Bank, N.A. [“Trustee”], and its
officers. After Lee was allowed to withdraw from his representation of Griffin,
he sought recovery of attorney’s fees. Lee filed a Motion for Leave to Intervene
under Federal Rule of Civil Procedure 24(a)(2) and Motion for Additional
Conservatory Relief. He sought imposition of a statutory lien upon Griffin’s
recovery, pursuant to a contingency fee agreement [the “Agreement”] and
Louisiana Revised Statute § 37:218. The district court granted the Motion and
permitted Lee’s intervention. After a bench trial, the district court entered
Judgment in favor of Lee and against Griffin on the Petition of Intervention, and
awarded Lee $16,068.00 in attorney’s fees based on the Agreement. Because we
find that the district court lacked supplemental jurisdiction over Lee’s claim in
intervention against Griffin, we VACATE and REMAND with instructions that
the district court DISMISS the Petition of Intervention for lack of subject matter
jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Griffin originally brought this action in Louisiana state court, by filing his
Petition for Fraud and Unjust Enrichment and for Return of Monies on or about
August 25, 2006. Defendants removed the case to the United States District
Court for the Western District of Louisiana, Monroe Division, on September 15,

*
District Judge of the Southern District of Mississippi, sitting by designation.

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2006, based solely on the court’s diversity jurisdiction pursuant to 28 U.S.C. §
1332. On April 6, 2009, the district court granted Defendants’ Motions for
Summary Judgment and dismissed all of Griffin’s claims against them with
prejudice. The district court entered Judgment in Defendants’ favor on April 7,
2009. The same day, Lee filed his Motion to Intervene.
On April 8, 2009, the district court granted Lee’s Motion to Intervene. The
district court concluded that Lee was entitled to intervene as of right pursuant
to Rule 24(a)(2). Lee filed his Petition of Intervention for Attorney Fee[s] and
Costs the same day. Lee sought “5% of all accrued but unpaid interest,
dividends, growth, etc. accumulated but undisbursed upon the principal amount
deposited in the trust fund,” “7.5% of the initial principal endowment of $116,000
placed in the” Trust, one-fourth of any damages recovered by Griffin against
Trustee or other parties for breach of trust or other fault, and $3,087.51 in costs
incurred. In his Motion to Intervene, Lee calculated his attorney’s fees to be
$51,000.00, in addition to the $3,087.51 in costs incurred.
The district court initially enjoined the Trustee from disbursing to Griffin
the sum of $54,087.51, the amount which Lee claimed as attorney’s fees and
costs in his Motion to Intervene. On April 14, 2009, at the conclusion of a
preliminary injunction hearing, the district court granted Lee’s Motion for
Preliminary Injunction and ordered the Trustee not to disburse $25,000.00 of the
amount in trust pending final adjudication of Lee’s Petition of Intervention. The
Court scheduled a bench trial on the merits of Lee’s Petition for June 29, 2009.
For reasons not germane to the district court’s jurisdiction, neither Griffin
nor his new attorney appeared at the June 29, 2009 bench trial. The district
court entered Judgment on July 7, 2009, in favor of Lee and against Griffin, in
the amount of $16,068.00, with legal interest from the date of Judgment, in the
form of a privilege on the funds in the Trust. The Judgment directed that the
Trustee “shall hold and conserve said monies as a debit item upon the [Trust]

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and pay said monies from the [Trust] to Mr. Lee out of the funds ultimately
determined to be available for distribution to Mr. Griffin upon finality of Mr.
Griffin's appeal” of his claims against Defendants. The Judgment also ordered
that, “per the contract for legal fees entered into by Mr. Lee and Mr. Griffin, Mr.
Lee holds a privilege on future funds, if any, paid by Defendants to Mr. Griffin
for damages suffered by Mr. Griffin.” Griffin appealed. Though he does not
dispute that Lee is owed some fees for his work in successfully having the Trust
reformed, Griffin disputes the amount awarded, and that any award should exist
as a lien or encumbrance on the Trust.
Our review of this appeal raised the question of whether supplemental
jurisdiction existed over Lee’s claim in intervention pursuant to 28 U.S.C. §
1367. We requested additional briefing from the parties on this point. Lee and
Griffin have each filed supplemental briefs.
II. JURISDICTION AND STANDARD OF REVIEW
Although not raised by the parties, we must first determine whether we
have jurisdiction to consider this appeal. See Energy Mgmt. Corp. v. City of
Shreveport, 397 F.3d 297, 301 n.2 (5th Cir. 2005) (“This court has an obligation
to consider possible objections to our jurisdiction sua sponte.”); Howery v. Allstate
Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (same). We have a special obligation
to satisfy ourselves not only of our own jurisdiction, but of that of the district
court as well. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
When the district court lacks jurisdiction, we have jurisdiction on appeal, not on
the merits but for the purpose of addressing the lower court’s jurisdiction to
entertain the suit. Id. (quoting United States v. Corrick, 298 U.S. 435, 440
(1936)). Our review of the district court’s exercise of subject matter jurisdiction
is plenary. Rutherford v. Harris County, Tex., 197 F.3d 173, 189–90 (5th Cir.
1999).

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III. ANALYSIS
At the time this case was removed from state court, original jurisdiction
in the underlying lawsuit was founded solely upon diversity, pursuant to 28
U.S.C. § 1332. This statute provides, in relevant part, that
(a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States . . . .

28 U.S.C. § 1332(a). Thus, § 1332 requires that the matter in controversy exceed
$75,000.00, and that the action be between citizens of different states. See id.;
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (noting
that the Supreme Court has “consistently interpreted § 1332 as requiring
complete diversity”).
At the time of removal, Plaintiff Griffin was a Mississippi citizen.
Defendant JPMorgan Chase & Co. was a citizen of both Delaware and New York.
Defendant JP Morgan Chase Bank, N.A., was a citizen of Ohio, as was
Defendant Bank One Trust Co., N.A. The individual Defendants, Walter E.
Busby, Drew C. Detraz, and Charlotte Ray, were Louisiana citizens. There was
complete diversity of citizenship, and the record is clear that the amount in
controversy exceeded $75,000.00, fulfilling the requirements of § 1332(a).
The district court subsequently granted Lee’s Motion to Intervene as of
right, pursuant to Rule 24(a)(2). Lee was aligned as an Intervenor Plaintiff, as
he asserted claims for attorney’s fees against his former client Griffin, and
further sought to impose a lien upon the Trust. The record reflects that Lee was
a citizen of Louisiana, and that the amount in controversy on his claim was
clearly less than $75,000.00, as his initial pleadings sought only $54,087.51.
Because Lee was aligned as a Plaintiff, the Petition, on its face, was not
consistent with the jurisdictional requirements of § 1332. Complete diversity

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of citizenship was lacking between Lee and Defendants, and the amount in
controversy was less than $75,000.00. The question presented is whether there
was supplemental jurisdiction over Lee’s claim. We conclude that there was not.
A. Applicability of § 1367 to Lee’s Claim
If a district court has original jurisdiction over at least one claim in a case,
it must look to what was traditionally known as “pendent” or “ancillary”
jurisdiction to assess whether it has jurisdiction over any remaining claims over
which it would otherwise lack original jurisdiction. See, e.g., City of Chi. v. Int’l
Coll. of Surgeons, 522 U.S. 156, 164–65 (1997) (federal question context).
Congress has codified the concepts of pendent and ancillary jurisdiction in the
supplemental jurisdiction statute, 28 U.S.C. § 1367. Id. at 165 (“Congress has
codified those principles in the supplemental jurisdiction statute, which
combines the doctrines of pendent and ancillary jurisdiction under a common
heading. 28 U.S.C. § 1367.”); Walter Fuller Aircraft Sales, Inc. v. Republic of
Phil., 965 F.2d 1375, 1389 n.13 (5th Cir. 1992) (“[T]he intent of § 1367(a) was to
codify the doctrines of pendent and ancillary jurisdiction.”) (citations omitted).
Lee argues in his supplemental brief that § 1367(b) is not applicable to his
claim, because the suit was removed to the district court pursuant to 28 U.S.C.
§ 1441(a), and not directly pursuant to § 1332(a). We are not persuaded by this
argument. 28 U.S.C. § 1441(a) provides for removal of certain actions, but it
does not confer subject matter jurisdiction upon the district court. It is, at
bottom, a procedural statute. Even though this action was removed pursuant
to § 1441(a), the district court’s original jurisdiction was founded solely on §
1332. Moreover, the Supreme Court has explicitly stated that § 1367(a) “applies
with equal force to cases removed to federal court as to cases initially filed there;
a removed case is necessarily one ‘of which the district courts . . . have original
jurisdiction.’” City of Chi., 522 U.S. at 165 (quoting 28 U.S.C. § 1441(a)).

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B. Supplemental Jurisdiction under § 1367
1. Statutory Framework
Section 1367(a) reads as follows:
(a) Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of which
the district courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of
the United States Constitution. Such supplemental jurisdiction
shall include claims that involve the joinder or intervention of
additional parties.

28 U.S.C. § 1367(a) (emphasis added).
The Supreme Court has held that
[s]ection 1367(a) is a broad grant of supplemental jurisdiction over
other claims within the same case or controversy, as long as the
action is one in which the district courts would have original
jurisdiction. The last sentence of § 1367(a) makes it clear that the
grant of supplemental jurisdiction extends to claims involving
joinder or intervention of additional parties.

Exxon Mobil, 545 U.S. at 558.
It is clear that Lee’s Petition satisfied the requirements of § 1367(a). This
does not end the inquiry, however. “If § 1367(a) were the sum total of the
relevant statutory language, our holding would rest on that language alone. The
statute, of course, instructs us to examine § 1367(b) to determine if any of its
exceptions apply, so we proceed to that section.” Exxon Mobil, 545 U.S. at
559–60. Subsection (b) reads as follows:
(b) In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the district
courts shall not have supplemental jurisdiction under subsection (a)
over claims by plaintiffs against persons made parties under Rule
14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over
claims by persons proposed to be joined as plaintiffs under Rule 19

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of such rules, or seeking to intervene as plaintiffs under Rule 24 of
such rules, when exercising supplemental jurisdiction over such
claims would be inconsistent with the jurisdictional requirements of
section 1332.

28 U.S.C. § 1367(b) (emphasis added).
Lee, who intervened as a Plaintiff, was a Louisiana citizen. While Griffin,
who was the original Plaintiff, was a Mississippi citizen, there were Defendants
in the underlying case who were, like Lee, citizens of Louisiana. The record
reflects that individual Defendants Walter E. Busby, Drew C. Detraz, and
Charlotte Ray, who were Trustee bank officers, were Louisiana citizens. Lee
was not completely diverse from Defendants in the underlying action. See 28
U.S.C. §§ 1332, 1367(b).
It was also facially apparent from Lee’s Petition of Intervention that the
amount in controversy, Lee’s claim for attorney’s fees, fell below $75,000.00. In
the proposed Order submitted with his Motion to Intervene, Lee estimated his
total claim to be $54,087.51. At the hearing on Lee’s Motion for Preliminary
Injunction held on April 14, 2009, Lee estimated his total claim to be $25,000.00
or less. Thus, Lee’s intervention was clearly inconsistent with the jurisdictional
requirements of § 1332, diversity of citizenship and the requisite amount in
controversy, excluding it from the court’s supplemental jurisdiction under the
clear language of the supplemental jurisdiction statute. See 28 U.S.C. § 1367(b).
2. Application of § 1367
Commentators have recognized that the difficult
question has been whether, if the court has proper jurisdiction of the
original action, it may allow an intervenor to come in and present a
claim or defense although there would be no basis for federal
jurisdiction if the intervenor were suing or being sued alone. This
problem arises primarily in diversity cases, in which the would-be
intervenor is a citizen of the same state as a party against whom the
intervenor would be aligned if intervention is allowed or in which

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the controversy with regard to the intervenor is for less than the
requisite jurisdictional amount.

7C C HARLES A LAN W RIGHT, A RTHUR R. M ILLER & M ARY K AY K ANE, F EDERAL
P RACTICE AND P ROCEDURE § 1917 (3d ed. 2007).

Congress’s enactment of the supplemental jurisdiction statute addressed
these issues. See generally id. Congress excepted from the statute’s reach
certain claims in cases in which original jurisdiction is founded solely upon
diversity, such as claims by persons seeking to intervene as plaintiffs under Rule
24, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of § 1332. See 28 U.S.C. §
1367(b); Exxon Mobil, 545 U.S. at 560 (“Section 1367(b), which applies only to
diversity cases, withholds supplemental jurisdiction over the claims of plaintiffs
proposed to be joined as indispensable parties under Federal Rule of Civil
Procedure 19, or who seek to intervene pursuant to Rule 24.”).
This change can be criticized as contrary to the objectives of
encouraging efficient joinder and some commentators have noted
that it goes beyond the “modest but significant” alterations stated
by the drafters. Nonetheless, it remains the law and it now is clear
that in diversity cases, ancillary (now supplemental) jurisdiction
cannot be invoked for plaintiff intervenors, whether they are of right
or permissive.

7C W RIGHT, M ILLER & K ANE, supra, § 1917 (citations omitted).
In other words, while Congress codified the concepts of pendent and
ancillary jurisdiction in §1367(a), it apparently chose to circumscribe such
jurisdiction in § 1367(b) with respect to plaintiff intervenors. Despite
commentators’ criticism of the manner in which the statute was drafted, the
Supreme Court has held that “§ 1367 is not ambiguous.” Exxon Mobil, 545 U.S.
at 567; see State Nat. Ins. Co. v. Yates, 391 F.3d 577, 581 (5th Cir. 2004).
Accordingly, the Supreme Court has rejected the view that it should look to other

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interpretive tools, including the legislative history of § 1367, to interpret the
statute. Exxon Mobil, 545 U.S. at 567. As this Court has stated, “the statute is
the sole repository of congressional intent where the statute is clear and does not
demand an absurd result.” In re Abbott Laboratories, 51 F.3d 524, 529 (5th Cir.
1995).
In this case, the lack of complete diversity and the presence of an amount
in controversy less than $75,000.00 are both inconsistent with the jurisdictional
requirements of 28 U.S.C. § 1332. Under a plain reading of 28 U.S.C. § 1367(b),
there was no supplemental jurisdiction over Lee’s claim in intervention, as it
was a claim by a person seeking to intervene as a plaintiff under Rule 24. See
28 U.S.C. §§ 1332, 1367(b); see also 7C W RIGHT, M ILLER & K ANE, supra, § 1917.
Other circuits have reached similar conclusions.
In Development Finance Corp. v. Alpha Housing & Health Care, Inc., 54
F.3d 156 (3d Cir. 1995), the Third Circuit acknowledged that § 1367(b)
eliminates supplemental jurisdiction over claims of plaintiff intervenors who
share citizenship with a defendant. Id. at 159. Ultimately, the Third Circuit
decided that the intervenor in that case was more properly aligned as a
defendant, which cured the jurisdictional defect. Id. In TIG Insurance Co. v.
Reliable Research Co., 334 F.3d 630 (7th Cir. 2003), the Seventh Circuit
dismissed a plaintiff intervenor’s claim for want of jurisdiction, because its
citizenship was not diverse from the party against whom it was asserting the
claim.1 Id. at 634.

1
Also instructive is Krueger v. Cartwright, 996 F.2d 928 (7th Cir. 1993), where the
Seventh Circuit held that “the ‘supplemental jurisdiction’ statute, authorizes the assertion of
federal jurisdiction over additional claims and parties, but specifically prohibits the exercise
of supplemental jurisdiction in diversity cases over non-diverse parties joined to the action
under Rule 19.” Id. at 933 (citing 28 U.S.C. § 1367(b)). Rule 19 and Rule 24 plaintiffs receive
similar treatment under a plain reading of § 1367(b).

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In Baker v. Minnesota Mining and Manufacturing Co., 99 F. App’x 718
(6th Cir. 2004), abrogated on other grounds by Blackburn v. Oaktree Capital
Management, LLC, 511 F.3d 633 (6th Cir. 2008), the Sixth Circuit held that the
Rule 24 intervention as a plaintiff by a party which was an arm of the
Commonwealth of Kentucky, and not a “citizen” for diversity purposes, deprived
the district court of jurisdiction under § 1367(b). Id. at 723. Thus, the Court
concluded that the district court should have denied the non-diverse party’s
motion to intervene as a plaintiff. Id.2 District courts in this Circuit have
interpreted the statute in a similar fashion. See Dushane v. Gallagher Kaiser
Corp., No. 05-CV-171, 2005 WL 1959151, at *6 (W.D. La. Aug. 10, 2005); MCI
Telecomm. Corp. v. Logan Group, Inc., 848 F. Supp. 86, 88–89 (N.D. Tex. 1994).3
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by the Constitution and statute, which is not to be expanded
by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378
(1994) (internal citations omitted). “Unless a dispute falls within the confines
of the jurisdiction conferred by Congress, such courts do not have authority to
issue orders regarding its resolution.” Giannakos v. M/V Bravo Trader, 762

2
We recognize that the Seventh Circuit took a somewhat different approach in Aurora
Loan Services v. Craddieth, 442 F.3d 1018, 1025–26 (7th Cir. 2006). There, the Seventh
Circuit found supplemental jurisdiction existed over a claim by a non-diverse plaintiff in
intervention. Aurora held that § 1367(b)’s exclusion “has no application to a party forced to
intervene to protect an interest that arose during the course of a federal litigation in which he
had no stake at the outset.” Id. at 1025. Aurora is factually distinguishable from the instant
case. Unlike the plaintiff intervenor in Aurora, Lee was not forced to intervene in the present
action, inasmuch as he would not have been bereft of a remedy absent such intervention.
3
See also Int’l Chem. Corp. v. Nautilus Ins. Co., No. 09-CV-359S(F), 2010 WL 3070101,
at *3 (W.D.N.Y. Aug. 3, 2010) (holding that “where, as here, intervention is sought by an
intervenor as a plaintiff in order to prosecute in district court a claim against a non-diverse
party, intervention may not be granted as such status is expressly prohibited by § 1367(b));
Liberty Mut. Grp. v. Hillman’s Sheet Metal & Certified Welding, Inc., 168 F.R.D. 90, 92 (D. Me.
1996) (noting that “the weight of authority supports the conclusion that § 1367(b) precludes
the exercise of supplemental jurisdiction over claims by nondiverse plaintiff-intervenors, even
as of right under Rule 24(a)”).

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F.2d 1295, 1297 (5th Cir. 1985). “Such jurisdiction goes to the core of the court’s
power to act, not merely to the rights of the particular parties.” Id. Based on the
foregoing, neither the Constitution nor Congress has authorized the exercise of
supplemental jurisdiction over Lee’s claim here.
C. Party Alignment
We note that the issue of party alignment has not been addressed by the
parties. The district court characterized Lee as an “Intervenor Plaintiff” and
Griffin as an “Intervenor Defendant.” Because § 1367(b) speaks only to plaintiff
intervenors, we consider whether Lee was properly aligned as a plaintiff. In
ascertaining the proper alignment of parties for jurisdictional purposes, courts
have a “duty” to “look beyond the pleadings, and arrange the parties according
to their sides in the dispute.” City of Indianapolis v. Chase Nat'l Bank of City
of N.Y., 314 U.S. 63, 69 (1941) (internal quotation omitted). “Whether the
necessary ‘collision of interest’ exists must be ascertained from the ‘principal
purpose of the suit’ and the ‘primary and controlling matter in dispute.’” Id.
(internal citation omitted). As previously noted, the Third Circuit has held that
if an intervenor is realigned as a defendant, § 1367(b) does not deprive the
district court of supplemental jurisdiction over a counterclaim raised by the
intervening defendant, even where the requirements of § 1332 are not met. See
Dev. Fin., 54 F.3d at 161.
In this Circuit, “[t]he generally accepted test of proper alignment is
whether the parties with the same ‘ultimate interests’ in the outcome of the
action are on the same side.” Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys.,
Inc., 723 F.2d 1173, 1178 (5th Cir. 1984) (citation omitted). “[W]hen it relates
to jurisdiction, it is [this Court’s] duty to notice party alignment and apply
proper realignment sua sponte on appeal, and that such realignment is to be
determined according to ‘the principal purpose of the suit and the primary and
controlling matter in dispute.’” Id. at 1178 (citation omitted).

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Based on the nature of Lee’s claim, we are of the opinion that it is more
appropriate to align him as a plaintiff with a claim against co-Plaintiff Griffin
as to the amount of attorney’s fees owed, and with a direct claim against Trustee
for a lien on the Trust. As a plaintiff intervening under Rule 24, § 1367(b)’s
exclusion would apply, and there is no supplemental jurisdiction over Lee’s
claim.
D. Lee’s Arguments in Support of Supplemental Jurisdiction
In his supplemental brief, Lee cites a number of cases for the proposition
that a claim for, or award of, attorney’s fees in a case is collateral to the case’s
merits, such that federal courts possess ancillary or supplemental jurisdiction
over such claims. None of those cases, however, involve a Rule 24 intervention.
Lee quotes heavily from In re Private Counsel Agreement, No. 5:98-CV-270,
1999 WL 1022131 (W.D. Tex. Nov. 5, 1999), which did involve a Rule 24
intervention, for the proposition that attorney’s fee disputes meet the
relatedness test of supplemental jurisdiction. What Lee apparently does not
appreciate, however, is that In re Private Counsel Agreement was a federal
question case, as were many of the other cases he cites. See id.; see also, e.g.,
Joseph Brenner Assoc., Inc. v. Starmaker Entm’t, Inc., 82 F.3d 55 (2d Cir. 1996);
Baer v. First Options of Chi., Inc., 72 F.3d 1294 (7th Cir. 1995). Because original
jurisdiction in those cases was not founded solely on § 1332, § 1367(b)’s
exclusions were inapplicable, even to Rule 24 interventions.
Lee next contends that under § 1367, the jurisdictional amount in
controversy is not a requirement which must be satisfied. Even assuming that
there were complete diversity of citizenship here, this argument is not
compelling. The Supreme Court has concluded that in a diversity case in which
some original plaintiffs satisfy the amount in controversy requirement, but
others do not, § 1367(a) confers supplemental jurisdiction over all claims that are
part of the same Article III case or controversy, including those that do not

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independently satisfy the amount in controversy requirement. Exxon Mobil, 545
U.S. at 558–59 (emphasis added). Lee is not an original Plaintiff.
As the Exxon Mobil Court also noted, “§§ 1367(b) and (c), or other relevant
statutes, may provide specific exceptions” to § 1367(a)’s broad jurisdictional
grant. Id. at 559. Such is the case with respect to Lee’s claim, which is clearly
excepted from supplemental jurisdiction by § 1367(b). In other words, what §
1367(a) giveth, § 1367(b) may taketh away. Moreover, the expansive
interpretation for which Lee argues, even if accepted, would not remedy the lack
of complete diversity of citizenship occasioned by his intervention. Id. at 554.
Lee next maintains that his intervention was the assertion of a state law
right to intervene, and not one pursuant to the Federal Rules of Civil Procedure.
He asserts that his was an “intervention of right,” but not under Rule 24(a).
Lee’s contention that this case does not come within the purview of § 1367(b)’s
exceptions because his right arises under state law is not persuasive. State law
clearly confers upon Lee whatever substantive right he may have at issue in this
case, but it was the Federal Rules of Civil Procedure, specifically Rule 24(a)(2),
which the district court applied to permit his intervention. In a diversity case,
the substantive right giving rise to intervention will likely originate from state
law, but federal procedural rules will dictate whether the party is allowed to
intervene.
Finally, Lee points out that the district court was the most convenient
forum for handling the subject matter then before it. This is no doubt true, but
convenience cannot supplant the unambiguous language of a jurisdictional
statute. We are sympathetic to the added expense and potential waste of judicial
resources Lee will likely face in pursuing his claim for legal fees in a separate
action and forum. However, efficiency and economy cannot confer jurisdiction
upon the courts where Congress has, according to the Supreme Court,
unambiguously chosen to limit such jurisdiction. See id. at 567.

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IV. CONCLUSION
Although we are sympathetic to Lee and the inconvenience he faces,
because there was no supplemental jurisdiction over Lee’s claim in intervention
pursuant to 28 U.S.C. § 1367(b), we VACATE and REMAND with instructions
that the district court DISMISS Lee’s Petition of Intervention for lack of subject
matter jurisdiction.

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