del Rosario Ortega v. Star Kist

United States Court of Appeals
For the First Circuit

No. 02-2530

MARIA DEL ROSARIO ORTEGA; SERGIO BLANCO,
by themselves and representing minors
BEATRIZ BLANCO-ORTEGA and PATRIZIA BLANCO-ORTEGA,

Plaintiffs, Appellants,

v.

STAR-KIST FOODS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

Freddie Pérez-González, with whom Juan J. Martínez-Rodríguez
and Freddie Pérez-González & Assoc., P.S.C. were on brief, for
appellants.
David C. Indiano, with whom Alexander H. Bopp and Indiano &
Williams, P.S.C. were on brief, for appellee.

June 2, 2004
 LYNCH, Circuit Judge. In April 1999, Beatriz Blanco-

Ortega, then nine years old, cut her right pinky finger on a can of

Star-Kist tuna. That is not normally the stuff of lawsuits in

federal court, but her injuries were more than trivial and led to

surgery, the prospect of future surgery, and minor permanent

disability and scarring. Beatriz, along with her parents and

sister, sued in federal court, asserting diversity jurisdiction.

28 U.S.C. § 1332. The claims of Beatriz's family members were

composed of emotional distress damages, with the mother asserting

medical expenses as well. Plaintiffs' choice of federal court was

no doubt influenced by the fact that civil jury trials are

unavailable in the local courts of Puerto Rico.

The case raises two issues. First is the classic

question whether each of the plaintiffs meets the amount-in-

controversy requirement for diversity jurisdiction. 28 U.S.C.

§ 1332(a). The district court, using an analytic approach that we

have since rejected, see Stewart v. Tupperware Corp., 356 F.3d 335,

339 (1st Cir. 2004), held that it was a legal certainty that none

of the plaintiffs' claims was worth $75,000 and so dismissed the

case for lack of jurisdiction. As to the injured child, Beatriz,

we reverse and hold that it is not a legal certainty that she could

not recover an award over $75,000. But we uphold the district

court's conclusion that none of Beatriz's family members satisfies

the amount-in-controversy requirement.

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 The second question is whether Beatriz's family members

may nonetheless remain as plaintiffs under the supplemental

jurisdiction statute, 28 U.S.C. § 1367. This is a very difficult

question, new to this court, on which the circuits have split. We

hold that by limiting supplemental jurisdiction to "civil action[s]

of which the district courts have original jurisdiction,"

§ 1367(a), Congress preserved the traditional rule that each

plaintiff in a diversity action must separately satisfy the amount-

in-controversy requirement. Accordingly, we affirm the dismissal

of Beatriz's family members' claims for lack of subject-matter

jurisdiction.

I.

On April 17, 2000, Beatriz Blanco-Ortega, along with

three family members, filed a diversity suit against Star-Kist

Foods Inc., Star-Kist Caribe Inc., and their unnamed insurers in

the district of Puerto Rico. Besides Beatriz, the plaintiffs

consisted of her mother, Maria del Rosario-Ortega; her father,

Sergio Blanco; and her sister, Patrizia Blanco-Ortega. The

defendants promptly moved to dismiss the complaint for lack of

jurisdiction, claiming that there was not complete diversity of

citizenship because Star-Kist Caribe Inc., the branch of Star-Kist

that does business in Puerto Rico, was a Puerto Rico citizen for

purposes of the diversity statute. The district court agreed and

dismissed the complaint without prejudice.

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 The plaintiffs re-filed their complaint on February 28,

2001, this time only naming Star-Kist Foods, Inc. and its unnamed

insurers as defendants. The complaint alleged that Beatriz had

suffered physical damages of not less than $500,000 and emotional

damages of not less than $400,000. It also alleged that each of

her three family members had suffered emotional damages in excess

of $150,000 and that Mrs. Ortega had also incurred $4,927.07 in

past medical expenses and $25,000 in estimated future medical

expenses.

On October 24, 2001, Star-Kist moved for summary

judgment, alleging that none of the plaintiffs could satisfy the

$75,000 amount-in-controversy requirement. The district court

agreed and on July 18, 2002, once again dismissed all of the

plaintiffs' claims without prejudice for want of jurisdiction. The

four plaintiffs appeal that decision.

II.

A. Amount-in-Controversy Requirement

In 1938, the Supreme Court established the basic standard

by which to evaluate a challenge that a plaintiff has not met the

jurisdictional amount-in-controversy requirement:

The rule governing dismissal for want of jurisdiction in
cases brought in federal court is that, unless the law
gives a different rule, the sum claimed by the plaintiff
controls if the claim is apparently made in good faith.
It must appear to a legal certainty that the claim is
really for less than the jurisdictional amount to justify
dismissal.

-4-
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89

(1938) (internal citations omitted).

"Under St. Paul, a plaintiff's allegations of damages

that meet the amount-in-controversy requirement suffices unless

questioned by the opposing party or the court." Spielman v.

Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001). Once a defendant

questions jurisdiction by challenging the amount of damages alleged

in the complaint, the burden shifts to the plaintiff to show that

it is not a legal certainty that the claims do not involve the

requisite amount.1 Id. at 4; Barrett v. Lombardi, 239 F.3d 23,

30-31 (1st Cir. 2001). "A party may meet this burden by amending

the pleadings or by submitting affidavits." Dep't of Recreation &

Sports v. World Boxing Ass'n, 942 F.2d 84, 88 (1st Cir. 1991).

When there are several plaintiffs, each must present claims that

meet the jurisdictional amount.2 Clark v. Paul Gray Inc., 306 U.S.

583, 589 (1939). Once a district court dismisses for failure to

1
At one point, the district court wrongly said that "once the
defendant challenges the amount of damages alleged in the
complaint, then the burden shifts to the plaintiffs to establish
facts indicating that, to a legal certainty, the claims involve
more than the jurisdictional minimum." This is incorrect; the
plaintiff need only show it is not a legal certainty that the
claims will not result in a verdict for the amount in controversy.
The double negative has substantive meaning. Ultimately, it
appears the district court did use the correct standard regarding
the plaintiffs' burden despite this error in laying out the law.
2
We address the supplemental jurisdiction question below.

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meet the jurisdictional amount, the court of appeals reviews that

judgment de novo. Spielman, 251 F.3d at 4.

The basic error committed by the district court was to

evaluate the amount-in-controversy by reference to amounts that the

Supreme Court of Puerto Rico has found reasonable in tort cases.

As we noted in Stewart, the analogy is imperfect in multiple

respects, most notably because Puerto Rico does not have jury

trials in civil cases. 356 F.3d at 339. We thus conduct the

amount-in-controversy inquiry de novo, looking to each plaintiff

individually.

The plaintiffs presented the following evidence in

response to Star-Kist's challenge to the amounts alleged in the

complaint: the deposition testimony of each of the four plaintiffs,

the medical report of Dr. Zegarra (Beatriz's treating physician),

hospital records, receipts for the payment of Beatriz's treatment,

pictures of Beatriz's hand after the surgery, and the testimony of

both the school nurse and the school paramedic who initially

treated Beatriz when she cut herself.

This evidence established that after Beatriz cut her

pinky finger while opening a can of Star-Kist tuna, she went to the

school infirmary. The nurse and a paramedic were able to stop the

bleeding after fifteen to thirty minutes. The nurse said that the

cut was deep and bled profusely. A school official called Mrs.

Ortega at home to tell her about Beatriz's injury, and Mrs. Ortega

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went to the school to pick up Beatriz. Mrs. Ortega then took

Beatriz to the emergency room of a nearby hospital, where a doctor

indicated that Beatriz may have severed her tendons and nerves.

Mrs. Ortega contacted Dr. Zegarra, a hand surgeon, by phone while

she was at the hospital, and scheduled an immediate appointment.

Together, Mrs. Ortega and Beatriz went immediately from the

hospital to Dr. Zegarra's office.

Dr. Zegarra confirmed that Beatriz had in fact damaged

her nerves and tendons and determined that she required surgery.

He was unable to secure an operating room for that day, so the

surgery was scheduled for April 22, the next day. The surgery,

which required Beatriz to be put under general anesthesia,

successfully repaired Beatriz's deep flexor tendon and digital

nerve. After the surgery, Beatriz attended physical therapy, which

was painful, three times a week for a three-month period. Beatriz

continued the physical therapy for eight months in total and wore

a cast throughout that entire period. The therapy impaired her

ability to write and paint in school and forced her to drop out of

a volleyball tournament. Her finger bears a small scar and is

slightly bent. Despite the successful surgery, Beatriz has been

diagnosed with a 3% partial permanent impairment of the functioning

of her hand. The medical prognosis is that the injury could become

worse as she grows and that she may need more surgery.

-7-
 Given Beatriz's permanent physical impairment, the

surgery, and the claimed pain and suffering (bearing in mind the

potential impact of the injury and its aftermath on a young girl),

we cannot say to a legal certainty that Beatriz could not recover

a jury award larger than $75,000. See Stewart, 356 F.3d at 340

(plaintiffs met jurisdictional minimum where evidence suggested

that each had suffered permanent physical impairment, had endured

non-trivial pain and suffering damages by having to spend honeymoon

in a hospital, and might require future medical services); Gebbia

v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)

(plaintiff's allegations that, as a result of falling in

defendant's store, she sustained injuries to her wrist, knee and

back, resulting in permanent disability and disfigurement and

causing pain and suffering and lost wages, were sufficient to meet

jurisdictional amount-in-controversy requirement); Rosenboro v.

Kim, 994 F.2d 13, 18-19 (D.C. Cir. 1993) ("[T]he presence of

medical evidence showing that a plaintiff is suffering from a

continuing or permanent physical impairment [is] an important

indicator" in determining whether the plaintiff meets the amount-

in-controversy requirement).

The other plaintiffs fare differently. Mrs. Ortega

presented evidence that she paid $4,927.07 for past medical

expenses and says that she anticipates paying $25,000 in future

medical expenses. She also claims that her emotional distress

-8-
damages totaled $250,000. We assume arguendo that Mrs. Ortega can

claim the past medical expenses and some future medical expenses.3

But there was no support at all for the $25,000 figure for future

medical expenses that she alleged, and a lower figure appears to be

in order, given that past expenses were less than $5,000. Even if

she could claim all $25,000, there is still quite a gap between the

medical expenses and $75,000.

We conclude that Mrs. Ortega cannot fill this entire gap

with her emotional distress damages. Cf. Jimenez Puig v. Avis

Rent-A-Car Sys., 574 F.2d 37, 40 (1st Cir. 1978) (amount-in-

controversy requirement of $10,000 was not met in claim for short-

lived embarrassment and anger resulting from a car-rental clerk's

public destruction of credit card and announcement that plaintiff

had failed to pay his bills). One of the normal responsibilities

of parenthood is dealing with a child's cuts and scrapes, and here

the injuries were relatively minor. Neither Beatriz nor her mother

sought any counseling relating to the injury. Moreover, Mrs.

Ortega did not personally witness Beatriz's accident or the

immediate aftermath.

Mrs. Ortega tries to argue that she meets the

jurisdictional amount by relying on remittitur cases. Certainly

courts may resort to analogous cases involving remittitur in

3
As for future medical expenses, Mrs. Ortega suggested in her
deposition that any future surgery Beatriz might have on her finger
would be elective.

-9-
determining whether a plaintiff can meet the amount-in-controversy

requirement in a diversity case. But the utility of remittitur

cases will vary depending on at least three factors -- the factual

similarities between the cases, the difference in viewpoints

between the start of a case and the end of a case, and both the

jury award in the remittitur case and the amount to which it was

reduced.

Remittitur of a jury award is ordered when the award is

"grossly excessive, inordinate, shocking to the conscience of the

court, or so high that it would be a denial of justice to permit it

to stand." Correa v. Hosp. San Francisco, 69 F.3d 1184, 1197 (1st

Cir. 1995). In such cases, the rule in this circuit is that the

jury award should be remitted "to the maximum that would be upheld

by the trial court as not excessive." Jones & Jones v. Pineda &

Pineda, 22 F.3d 391, 398 (1st Cir. 1994). The plaintiff has a

choice between accepting the remittitur amount or opting for a new

trial. See Liberty Mut. Ins. Co. v. Cont'l Cas. Co., 771 F.2d 579,

588 (1st Cir. 1985).

While remittitur determinations are based on what has

been proved at trial, amount-in-controversy determinations are made

at the outset of the case. See generally 14B Wright & Miller, Fed.

Prac. & Proc. § 3702 (2d ed. 2003). This different procedural lens

complicates determining whether there is sufficient factual

similarity between the remittitur case and the jurisdictional case.

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To be useful, the facts of injury and damages that were actually

proved to the jury in the remittitur case must be similar to the

facts, taken in the light most favorable to the plaintiff, that

could be proved in the jurisdictional case.

Moreover, for an analogy to a remittitur case to be

useful, the difference between the numbers involved in the

remittitur case must be taken into account. These amounts are (1)

the jury award that was deemed excessive in a remittitur case and

(2) the amount to which that award was remitted. If, assuming the

cases are otherwise similar, both numbers are above the

jurisdictional minimum (i.e., $75,000), then the remittitur case

supports the conclusion that the amount-in-controversy requirement

has been met. Similarly, if both the jury award and the amount to

which it was remitted are less than $75,000, that supports the

conclusion that the amount-in-controversy requirement cannot be

met.

More problematic are remittitur cases hovering around the

jurisdictional amount -- i.e., cases in which the jury award is

above the jurisdictional amount but the amount to which the award

was remitted is below the jurisdictional amount. In theory, the

amount to which the award was remitted should be the maximum

possible amount that was legally permissible, and thus should be

the applicable basis of comparison. But theory is often a long way

from reality. As we have noted before, "converting feelings such

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as pain and suffering and the loss of enjoyment of life into

dollars is not an exact science." Smith, 177 F.3d at 33 n.5. One

safety valve for the inherent difficulty in selecting a remittitur

amount is that the plaintiff is given the choice of accepting the

reduced amount or opting for a new trial. See Liberty Mut. Ins.

Co., 771 F.2d at 588. The difficulty in converting pain and

suffering into a dollar amount makes each case very fact-specific,

thus decreasing the usefulness of a remittitur case hovering around

the jurisdictional amount.

Mrs. Ortega argues by reference to a remittitur case,

Smith v. Kmart Corp., 177 F.3d 19 (1st Cir. 1999). In that case,

a husband and wife were shopping in defendant's store when the wife

was struck on the head by a cooler that fell from a shelf. Id. at

22. As a result of the blow, the wife lost consciousness for close

to a minute, leading the husband to administer mouth-to-mouth

resuscitation. Id. at 22. He testified that he believed his wife

was dead. Id. at 23. Eventually an ambulance arrived, and

paramedics placed a cervical collar around the wife's neck and

transported her on to the ambulance using a stiff board that had

been placed underneath her. Id. at 22. The wife suffered from the

blow for months after the injury. Id. The jury awarded the

husband $250,000 in emotional distress damages, and the appellate

court remitted that award to $100,000. Id. at 32-33. Mrs. Ortega

argues that her case is similar to the husband's in Smith and that

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even the $100,000 amount to which damages were remitted in that

case is larger than the $75,000 minimum.

Mrs. Ortega's reliance on Smith fails even though both

the original award and the reduced amount were greater than the

jurisdictional minimum, because Mrs. Ortega's case is not

sufficiently factually similar to Smith. Beatriz's injury, on the

basis of the plaintiffs' complaint, was not nearly as dramatic or

disruptive as the wife's injury in Smith. No one believed that

Beatriz would die of the cut on her finger and there was no

dramatic witnessing of the accident, unlike in Smith. Moreover,

unlike the husband in Smith, Mrs. Ortega has not alleged that the

accident has in any way strained her relationship with Beatriz.

See id. at 23.

Beatriz's sister Patrizia has an even less substantial

claim for emotional distress damages than her mother. Patrizia was

a student in Washington, D.C. at the time of the injury and did not

return home due to the accident. Although she did take Beatriz to

some physical therapy sessions after she returned from school over

the summer, Patrizia did not miss any work or school obligations to

do so. Like the others, there is no evidence of Patrizia's

receiving any counseling services in connection with her little

sister's injury. It is legally certain that Patrizia could not

recover an award over $75,000 for her emotional distress.

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 It is also legally certain that the claims of Beatriz's

father, Sergio Blanco, do not meet the $75,000 threshold. Mr.

Blanco is divorced from Beatriz's mother and does not live with

Beatriz. He spent half a day at the hospital during Beatriz's

surgery, but he did not bring Beatriz to any medical appointments.

Mr. Blanco's claim to emotional distress damages over $75,000 is

too tenuous.

In short, only Beatriz's claim satisfies the

jurisdictional requirements of § 1332. Her family members' claims

do not meet the minimum amount-in-controversy, and no other

independent basis for federal jurisdiction (e.g., federal question

jurisdiction) exists over those claims.

B. Supplemental Jurisdiction under § 1367

This leaves the issue of supplemental jurisdiction.

Beatriz's family members cannot file their own suits against Star-

Kist in federal court. The question is whether the supplemental

jurisdiction statute, 28 U.S.C. § 1367, allows them to proceed in

federal court nonetheless on the basis of Beatriz's

jurisdictionally sufficient claim.

Though simple to state, the question has not been

answered in this circuit,4 and its proper resolution is far from

clear. The courts of appeals are sharply divided over whether

4
We noted the issue in the class-action context in Spielman
v. Genzyme Corp., 251 F.3d 1, 7 n.5 (1st Cir. 2001).

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§ 1367 allows parties who cannot themselves satisfy § 1332's

amount-in-controversy requirement to sue in federal court by

joining forces with a plaintiff who can. The Supreme Court once

granted certiorari to resolve the matter, but it ultimately split

4-4 and affirmed without opinion. See Free v. Abbott Labs., Inc.,

529 U.S. 333 (2000).5

The problem has actually arisen in two contexts, each of

which is the subject of a circuit split. First, there are cases --

like Beatriz's -- involving the ordinary joinder of additional

plaintiffs under Fed. R. Civ. P. 20. Compare Stromberg Metal

Works, Inc. v. Press Mech., Inc., 77 F.3d 928, 932 (7th Cir. 1996)

(where one plaintiff satisfies the amount-in-controversy

requirement, § 1367 permits jurisdiction over transactionally

related claims by co-plaintiffs who do not), with Meritcare, Inc.

v. St. Paul Mercury Ins. Co., 166 F.3d 214, 216 (3d Cir. 1999)

(each co-plaintiff must independently satisfy the amount-in-

controversy requirement). Second, there are cases involving the

claims of absent class members in diversity-only class actions.

Compare Allapattah Serv., Inc. v. Exxon Corp., 333 F.3d 1248, 1254

(11th Cir. 2003) (section 1367 authorizes jurisdiction over all

class members' claims if the named plaintiffs satisfy the amount-

in-controversy requirement); Gibson v. Chrysler Corp., 261 F.3d

5
An unexplained affirmance by an equally divided Court has no
precedential value. See Rutledge v. United States, 517 U.S. 292,
304 (1996).

-15-
927, 934 (9th Cir. 2001) (same); Rosmer v. Pfizer, Inc., 263 F.3d

110, 114 (4th Cir. 2001) (same); and In re Abbott Labs., 51 F.3d

524, 528 (5th Cir. 1995) (same), with Trimble v. Asarco, Inc., 232

F.3d 946, 962 (8th Cir. 2000) (section 1367 does not extend

jurisdiction over class members who do not independently meet the

amount-in-controversy requirement); and Leonhardt v. W. Sugar Co.,

160 F.3d 631, 640 (10th Cir. 1998) (same).6 Because the same

statutory language applies in both contexts, some courts have

lumped the two together for purposes of § 1367. See, e.g.,

Meritcare, 166 F.3d at 218; Stromberg, 77 F.3d at 931. Our case

involves only Rule 20 joinder, however, and we express no view

regarding the application of § 1367 in class actions.7

Even aside from the circuit split, this is an area where

courts are wise to tread carefully. The problem of pendent-party

jurisdiction implicates some of the most sensitive and enduring

issues in the law of federal jurisdiction, and it directly affects

6
The district courts in our circuit are similarly split.
Compare Payne v. Goodyear Tire & Rubber Co., 229 F. Supp. 2d 43, 52
(D. Mass. 2002) (section 1367 permits supplemental jurisdiction
over pendent party plaintiffs who do not themselves satisfy
requirements of § 1332); and Duhaime v. John Hancock Mut. Life Ins.
Co., 177 F.R.D. 54, 60 (D. Mass. 1997) (same), with Arias v. Am.
Airlines, Inc., 163 F. Supp. 2d 111, 115 (D.P.R. 2001) (each
plaintiff must independently meet the requirements of diversity
jurisdiction); and Mayo v. Key Fin. Servs., Inc., 812 F. Supp. 277,
278 (D. Mass. 1993) (same).
7
In our view, class actions raise unique problems that will
be better addressed with the benefit of briefing and argument in a
case requiring us to consider them. See infra note 19.

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the allocation of judicial business among the state and federal

courts. In the end, certainty can come only from Congress or the

Supreme Court. For now, we disagree with the Seventh Circuit and

join the Third Circuit in holding that, at least in cases of Rule

20 joinder, § 1367 did not upset the settled rule that each

plaintiff must independently satisfy the diversity statute's

amount-in-controversy requirement.

1. Background

Before 1990, it is clear, Beatriz's family members could

not have joined in Beatriz's diversity suit unless they each stood

to recover more than the minimum amount required for jurisdiction.

As early as 1911, the Supreme Court declared that "[w]hen two or

more plaintiffs, having separate and distinct demands, unite for

convenience and economy in a single suit, it is essential that the

demand of each be of the requisite jurisdictional amount." Troy

Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40 (1911). That rule is

now commonly associated with Clark v. Paul Gray, Inc., 306 U.S. 583

(1939), which reaffirmed Troy Bank after the adoption of the

Federal Rules of Civil Procedure. See 306 U.S. at 589. Even after

United Mine Workers v. Gibbs, 383 U.S. 715 (1966), in which the

Supreme Court approved pendent-claim jurisdiction in federal-

question cases, see id. at 725, Clark remained good law:

"[M]ultiple plaintiffs with separate and distinct claims must each

satisfy the jurisdictional-amount requirement for suit in the

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federal courts." Zahn v. Int'l Paper Co., 414 U.S. 291, 294

(1973); see also Aldinger v. Howard, 427 U.S. 1, 15-16 (1976)

(distinguishing pendent-party jurisdiction from the type of

pendent-claim jurisdiction permitted in Gibbs). If the Clark rule

applies in this case, we should affirm the dismissal as to

Beatriz's family members but vacate as to Beatriz, thereby leaving

Beatriz free to choose between proceeding alone in federal court or

voluntarily dismissing her complaint and re-filing together with

her family in the Puerto Rico courts. See Clark, 306 U.S. at 590.

Whether Clark continues to apply today depends on how one

reads 28 U.S.C. § 1367, the supplemental jurisdiction statute,

which was enacted by Congress in 1990. See Judicial Improvements

Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, § 310. In

relevant part, § 1367 provides:

(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.

(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

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 claims by persons proposed to be joined as
plaintiffs under Rule 19 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.

The impetus for Congress's adoption of § 1367 was the Supreme

Court's 5-4 decision in Finley v. United States, 490 U.S. 545

(1989). See generally Raygor v. Regents of the Univ. of Minn., 534

U.S. 533, 539-40 (2002). Finley did not deal with the amount-in-

controversy requirement. Rather, the plaintiff in Finley had filed

suit against the United States under the Federal Tort Claims Act

(FTCA), 28 U.S.C. § 1346(b), alleging that the government's failure

to maintain certain airport runway lights had contributed to the

death of her husband and children in an airplane accident. 490

U.S. at 546. Later, she amended her complaint to add state-law

tort claims against two new defendants, a municipality and a

utility company. No independent basis for federal subject-matter

jurisdiction existed over those claims. Id. The Supreme Court

acknowledged that the plaintiff could not have brought her entire

action in state court because federal jurisdiction in FTCA cases is

exclusive, but it held nevertheless that the district court lacked

jurisdiction over the "pendent-party" state-law claims. Id. at

555-56. The Court concluded by noting that Congress was free to

reverse that result if it wished. Id. at 556.

Congress did so in § 1367. See Raygor, 534 U.S. at 540;

id. at 550 (Stevens, J., dissenting); Ponce Fed. Bank, F.S.B. v.

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The Vessel "Lady Abby", 980 F.2d 56, 58 (1st Cir. 1992) (Breyer,

C.J.) (section 1367 overturns Finley). The text of the statute,

however, can be read to do more than overturn Finley.8 The

jurisdictional grant, which appears in section (a), is not limited

to cases like Finley involving exclusive federal jurisdiction, or

even to federal-question cases generally. Instead, subsection (a)

permits the district courts to hear any claim arising from the same

constitutional case or controversy "in any civil action of which

the district courts have original jurisdiction." Subsection (b)

then creates an exception to that grant for certain claims in

diversity cases. The result is a jurisdictional grant of such

apparent breadth that, as one commentator succinctly put it, "the

statute has created confusion in a number of areas in which

principles were thought to be well established." 13B Wright,

Miller, & Cooper, Fed. Prac. & Proc. § 3567.2 (2d ed. 2003).

2. Section 1367 and the Clark Rule

One such area of confusion involves the continued

validity of Clark in the wake of § 1367. The case law on this

issue is split between two competing interpretations of § 1367.

8
See Arthur & Freer, Grasping at Burnt Straws: The Disaster
of the Supplemental Jurisdiction Statute, 40 Emory L.J. 963, 980
(1991) ("Congress could have overruled the holding in Finley quite
simply and cleanly, without affecting other areas. . . . Why the
statute had to go further, we do not know. That the statute went
further, there can be no doubt.").

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 The first, adopted by the Seventh Circuit in Stromberg,

turns on Congress's failure to include Rule 20 plaintiffs among

those parties who cannot rely on supplemental jurisdiction where

doing so would be inconsistent with § 1332. See § 1367(b)

(restricting supplemental jurisdiction over parties joined as

plaintiffs under Rules 19 or 24, but omitting Rule 20 plaintiffs).

On this reading, § 1367 overturns Clark and extends supplemental

jurisdiction over claims asserted by diversity plaintiffs who

cannot meet the amount-in-controversy requirement, provided that at

least one plaintiff in the action has a jurisdictionally sufficient

claim. See Stromberg, 77 F.3d at 930-32.

The second interpretation, originally suggested in an

article by Professor Pfander9 and later adopted by the Tenth

Circuit in Leonhardt, emphasizes the requirement in § 1367(a) that

the district court must first have "original jurisdiction" over an

action before supplemental jurisdiction can apply. See Leonhardt,

160 F.3d at 640 (citing Pfander). On this reading, § 1367

preserves the rule in Clark and thus does not supply supplemental

jurisdiction where, as in this case, only one of the named

plaintiffs meets the amount in controversy. Although Leonhardt

was a class action case, the Third Circuit subsequently endorsed

its reasoning in Meritcare, a Rule 20 joinder case with facts

9
Pfander, Supplemental Jurisdiction and Section 1367: The
Case for a Sympathetic Textualism, 148 U. Pa. L. Rev. 109 (1999).

-21-
analogous to the case at bar. See 166 F.3d at 221-22 (citing

Leonhardt with approval).

We recognize that plausible textual arguments can be made

in favor of either of these readings. For the reasons that follow,

however, we conclude that Leonhardt and Meritcare embody the better

reading of § 1367.

a. Text of § 1367

We begin with the text of the statute. BedRoc Ltd. v.

United States, 124 S. Ct. 1587, 1593 (2004). Given the historical

and legal background against which Congress enacted § 1367, we

think the Leonhardt/Meritcare approach makes the best sense of the

statutory text. Still, neither Leonhardt nor Meritcare fully

explained the historical and doctrinal significance of Congress's

choice of words in § 1367. Given the long history of the Judicial

Code and the enormous body of law and scholarship that surrounds

it, that context provides a crucial guide to the meaning of the

statute. See Nat'l Archives & Records Admin. v. Favish, 124 S. Ct.

1570, 1579 (2004) (assuming, in interpreting a federal statute,

that "Congress legislated against [a] background of law,

scholarship, and history").

The first sentence of § 1367 specifies that supplemental

jurisdiction can only apply in a "civil action of which the

district courts have original jurisdiction." § 1367(a). That

phrase unambiguously invokes the language that Congress has used

-22-
for more than two hundred years to confer jurisdiction on the

federal district courts in civil cases. Nearly every

jurisdictional grant in Title 28 provides that "the district courts

shall have original jurisdiction" of "civil action[s]" within the

scope of the grant. See, e.g., 28 U.S.C. §§ 1331 (federal

questions), 1332 (diversity), 1335 (interpleader), 1337

(antitrust), 1338 (intellectual property), 1339 (postal matters),

1340 (internal revenue). Such grants, in turn, have been the

subject of judicial interpretation for centuries. E.g.,

Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). By invoking

the concept of a district court's "original jurisdiction" over a

"civil action," Congress presumptively incorporated into § 1367 the

longstanding, judicially developed doctrines that determine whether

those statutes confer "original jurisdiction" over a particular

civil action. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't

of Health & Human Res., 532 U.S. 598, 614-15 (2001) (Scalia, J.,

concurring) ("[W]here Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas that

were attached to each borrowed word in the body of learning from

which it was taken . . . ." (quoting Morissette v. United States,

342 U.S. 246, 263 (1952))).

That is important because, under well-settled law,

joinder and aggregation have different implications for the

-23-
existence of "original jurisdiction" in federal-question and

diversity cases. Under the federal-question statute, 28 U.S.C.

§ 1331, the original jurisdiction of the district courts is

triggered if the action "aris[es] under the Constitution, laws, or

treaties of the United States." All that is required is the

federal question. Osborn v. Bank of United States, 22 U.S. (9

Wheat) 738, 822 (1824) (Marshall, C.J.); see City of Chicago v.

Int'l Coll. of Surgeons, 522 U.S. 156, 164-66 (1997). Joinder

questions arise only after "original jurisdiction" is established,

and only to the extent that the court seeks to decide non-federal

questions incident to disposition of the federal question.10 See

Osborn, 22 U.S. at 822.

Under § 1332, by contrast, joinder and aggregation

questions can actually determine whether the district court has

"original jurisdiction" over the action. Joinder affects original

jurisdiction through the complete diversity rule of Strawbridge v.

Curtiss, supra. See Wisconsin Dep't of Corr. v. Schacht, 524 U.S.

381, 389 (1998) ("The presence of [a] nondiverse party

automatically destroys original jurisdiction . . . .").

Aggregation issues affect original jurisdiction because Clark

10
Until 1980, the federal question statute also had an amount-
in-controversy requirement. See Act of Dec. 1, 1980, Pub. L. No.
96-486, § 2, 94 Stat. 2369 (eliminating the amount-in-controversy
requirement from § 1331). If that requirement were still in effect
today, aggregation issues would affect the existence of "original
jurisdiction" under § 1331.

-24-
prohibits multiple plaintiffs from combining their claims to clear

the amount-in-controversy bar. See 306 U.S. at 589. Strawbridge

and Clark, in turn, are binding interpretations of the diversity

statute. See State Farm Fire & Casualty Co. v. Tashire, 386 U.S.

523, 530-31 (1967) (complete diversity rule is statutory); Snyder

v. Harris, 394 U.S. 332, 336 (1969) (Clark anti-aggregation rule is

statutory). Unless both rules are satisfied, the statute does not

confer original jurisdiction on the district court. Sheldon v.

Sill, 49 U.S. (8 How.) 441, 449 (1850) ("Courts created by statute

can have no jurisdiction but such as the statute confers.").

Thus, Congress preserved both Clark and Strawbridge by

providing that, before supplemental jurisdiction can attach, the

district court must first have "original jurisdiction" over the

action. See Pfander, Supplemental Jurisdiction and Section 1367:

The Case for a Sympathetic Textualism, 148 U. Pa. L. Rev. 109, 148-

49 (1999). In a diversity case, if the Clark rule is not met, or

if the parties are not completely diverse, then the "original

jurisdiction" requirement in § 1367(a) is not satisfied and

supplemental jurisdiction will not attach. On the other hand, if

the parties are completely diverse and each plaintiff separately

meets the amount-in-controversy requirement, then § 1332 is

satisfied and the "original jurisdiction" requirement is met. If

so, § 1367 will support any transactionally related claims that the

plaintiffs may wish to bring -- but only so long as § 1367(b) is

-25-
satisfied, and only as long as original jurisdiction is not

destroyed. This last qualification is important because it

precludes a plaintiff from, for example, using § 1367 to circumvent

Strawbridge by amending her complaint to add a nondiverse party

after "original jurisdiction" is initially established. Cf. Grupo

Dataflux v. Atlas Global Group, L.P., 124 S. Ct. 1920, 1926 (2004)

(noting that a post-filing change in the parties to an action,

unlike a change in the initial parties' citizenship, can affect

subject-matter jurisdiction); Am. Fiber & Finishing, Inc. v. Tyco

Healthcare Group, L.P., 362 F.3d 136, 140-41 (1st Cir. 2004)

(subject-matter jurisdiction was destroyed and dismissal was

required where a diversity plaintiff amended its complaint to join

a non-diverse party).

On this reading of § 1367, Beatriz's family members

cannot rely on supplemental jurisdiction to support their claims:

their complaint does not satisfy Clark, so "original jurisdiction"

fails under § 1332. Snyder, 394 U.S. at 336. As a result, this

"civil action" is not one "of which the district courts have

original jurisdiction," and § 1367 does not apply.

We are persuaded to adopt this reading of the statutory

text for several reasons. First, it gives effect to Congress's

requirement that the district court must have "original

jurisdiction" over the "civil action" before supplemental

jurisdiction can apply. See Bui v. DiPaolo, 170 F.3d 232, 237 (1st

-26-
Cir. 1999) (statutes should be interpreted to give effect to every

word and phrase). Congress could have applied a different test in

§ 1367(a) -- for example, it could have permitted supplemental

jurisdiction whenever any single claim in the action would have

supported original jurisdiction if it had been brought by itself.11

But that is not what the statute says.12 See Pfander, supra, at 141

11
The dissent would apply such a test in this case. According
to the dissent, § 1367 authorizes supplemental jurisdiction
whenever the district court has "original jurisdiction over a
claim." (emphasis added). The problem with the dissent's theory is
that § 1367(a) does not refer to original jurisdiction over
"claims." Rather, the statute requires a "civil action of which
the district courts have original jurisdiction." § 1367(a)
(emphasis added).
That distinction is critical. The Supreme Court has never
held that original jurisdiction exists over a "civil action" under
§ 1332 simply because one claim in the action is between diverse
parties and exceeds the jurisdictional minimum. On the contrary,
original jurisdiction does not lie unless all of the parties in the
case are diverse. See Wis. Dep't of Corr. v. Schacht, 524 U.S.
381, 388 (1998) ("A case falls within the federal district court's
'original' diversity 'jurisdiction' only if diversity of
citizenship among the parties is complete, i.e., only if there is
no plaintiff and no defendant who are citizens of the same
State."). Similarly, § 1332 is not satisfied, and original
jurisdiction over the "civil action" does not exist, unless each
plaintiff independently satisfies the amount-in-controversy
requirement. Snyder, 394 U.S. at 336; Clark, 306 U.S. at 589.
Because the complaint in this case fails this requirement, original
jurisdiction over the "civil action" is absent and § 1367 is
inapplicable.
12
The dissent argues that a single claim is sufficient to
create original jurisdiction over a "civil action" under § 1332
because courts are not normally required to dismiss the entire
action when a jurisdictional flaw is discovered. Rather, a court
may simply dismiss the offending parties. See, e.g., Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 836 (1989) (courts of
appeals may cure jurisdictional defects by dismissing dispensable
nondiverse parties); Clark, 306 U.S. at 590 (dismissing parties who
failed to meet the amount-in-controversy requirement but retaining

-27-
(noting that the statute "appears to reject the notion that a

single, jurisdictionally sufficient claim will support the exercise

of plenary pendent jurisdiction in diversity matters").

Second, our reading of § 1367's "original jurisdiction"

requirement is consistent with the settled meaning of identical

language in 28 U.S.C. § 1441, the removal statute. Section 1441,

like § 1367, applies only if the "civil action" in question is one

"of which the district courts . . . have original jurisdiction."

§ 1441(a). Relying on that language, the Supreme Court has

interpreted § 1441 to prohibit removal unless the entire action, as

it stands at the time of removal, could have been filed in federal

court in the first instance. See, e.g., Sygenta Crop Protection,

Inc. v. Henson, 537 U.S. 28, 33 (2002); Okla. Tax Comm'n v. Graham,

489 U.S. 838, 840 (1989) (per curiam). Section 1441 has thus been

held to incorporate the well-pleaded complaint rule, see City of

Chicago, 522 U.S. at 163; the complete diversity rule, see

Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73 (1996); and rules for

calculating the amount in controversy, see St. Paul Mercury Indem.

Co. v. Red Cab Co., 303 U.S. 283, 291-92 (1938). By the time

jurisdiction over the party that satisfied it). This argument
confuses the existence of original jurisdiction with remedies for
its absence. Original jurisdiction over the "civil action" may be
achieved by dismissing certain dispensable parties. But as long as
the offending parties are present, original jurisdiction over the
"civil action" cannot exist, see Schacht, 524 U.S. at 389 ("The
presence of [a] nondiverse party automatically destroys original
jurisdiction . . . ."), regardless of whether any single claim in
the action would satisfy § 1332 by itself.

-28-
Congress enacted § 1367 in 1990, this interpretation of § 1441(a)

was well-settled. See, e.g., Okla. Tax Comm'n, 489 U.S. at 840;

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Met. Life

Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Franchise Tax Bd. v.

Constr. Laborers Vacation Tr., 463 U.S. 1, 27 (1983).

Given this background, it is significant that Congress

included the same "original jurisdiction" requirement in § 1367.

See Erlenbaugh v. United States, 409 U.S. 239, 243-44 (1972)

(noting that "practical experience in the interpretation of

statutes [indicates that] a legislative body generally uses a

particular word with a consistent meaning in a given context").

Congress purposefully employed language in § 1367(a) that had

already been interpreted in § 1441 to incorporate the traditional

doctrines of federal jurisdiction -- including Strawbridge and

Clark.

Another advantage of our interpretation of § 1367 is that

it aligns statutory supplemental jurisdiction with the judicially

developed doctrines of pendent and ancillary jurisdiction as they

existed prior to Finley. Congress took the opportunity in § 1367

to codify the doctrines of pendent and ancillary jurisdiction under

a single heading. See City of Chicago, 522 U.S. at 165; Iglesias

v. Mut. Life Ins. Co., 156 F.3d 237, 241 (1st Cir. 1998). Neither

of those doctrines permitted a diversity plaintiff to circumvent

the requirements of § 1332 simply by joining her claim in an action

-29-
brought by another, jurisdictionally competent diversity

plaintiff.13 We see no indication in § 1367 that Congress wanted

to alter that rule. Notably, where Congress did intend to alter

existing law in § 1367, it took pains to do so directly and

unequivocally. See § 1367(a) (repudiating Finley in a separate

sentence: "Such supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional parties.").

Finally, our interpretation explains the omission of Rule

20 plaintiffs from § 1367(b). This was the "apparent incongruity"

on which the Seventh Circuit relied in Stromberg. See 77 F.3d at

932. Stromberg reasoned that because Congress omitted claims by

Rule 20 plaintiffs from § 1367(b), it must have intended to allow

permissively joined plaintiffs to bring claims that § 1332 would

not otherwise support. Id. at 931-32. In our view, there is a

better explanation. The permissive joinder of a nondiverse party,

13
The doctrine of pendent jurisdiction, which allowed
plaintiffs to assert non-federal claims in federal court, was
applicable only in federal-question cases. See 7C Wright, Miller,
& Kane, Fed. Prac. & Proc. § 1917 n.7 (2d ed. 2004); Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 348-49 (1988); see also Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) (noting
that the lower court had erred in relying on Gibbs, a pendent
jurisdiction case, because the case before the court did not
involve a federal claim). Ancillary jurisdiction, by contrast,
applied in both federal-question and diversity cases, but that
doctrine "typically involve[d] claims by a defending party haled
into court against his will." Kroger, 437 U.S. at 376 (emphasis
added); see also id. at n.18. Moreover, the Court in Kroger made
clear that a party could not resort to ancillary jurisdiction where
doing so would effectively circumvent the complete diversity rule.
See id. at 375-77.

-30-
whether in the original complaint or afterwards, destroys complete

diversity and thus deprives the court of "original jurisdiction."

Schacht, 524 U.S. at 389; Am. Fiber & Finishing, 362 F.3d at 140-

41. Likewise, "original jurisdiction" is destroyed by the joinder

of a Rule 20 plaintiff who, like Beatriz's family members, cannot

satisfy the amount-in-controversy requirement. See Snyder, 394

U.S. at 336-37 (noting that the requirement that each plaintiff

must separately pass the amount-in-controversy bar derives from

§ 1332).14 Supplemental jurisdiction in such a case fails at the

threshold of § 1367(a), so there was simply no need for Congress to

include Rule 20 plaintiffs in subsection (b) in order to preserve

Clark or Strawbridge. See Pfander, supra, at 148.

A few courts have rejected this reading of § 1367 on the

ground that nothing in the statute suggests the phrase "original

jurisdiction" has a different meaning in diversity cases than in

federal-question cases. See, e.g., Gibson v. Chrysler Corp., 261

F.3d 927, 936 (9th Cir. 2001); Payne v. Goodyear Tire & Rubber Co.,

14
The Supreme Court has not specifically held that plaintiffs
joined under Rule 20 after the filing of the original complaint
must also satisfy the amount-in-controversy requirement. That
result, however, is probably inevitable in light of Clark and
Snyder, for "[o]therwise an appellate court could be called on to
sustain a decree in favor of a plaintiff who had not shown that his
claim involved the jurisdictional amount, even though the suit were
dismissed on the merits as to the other plaintiffs who had
established the jurisdictional amount for themselves." Clark, 306
U.S. at 590; cf. Am. Fiber & Finishing, Inc. v. Tyco Healthcare
Group, LP, 362 F.3d 136, 140-41 (1st Cir. 2004) (addition of a non-
diverse party after filing of original complaint destroyed
diversity jurisdiction).

-31-
229 F. Supp. 2d 43, 50-51 (D. Mass. 2002). That argument is

misplaced. The requirement of "original jurisdiction" in § 1367(a)

has the same meaning in every case: that some underlying statutory

grant of original jurisdiction must be satisfied. What differs

between federal question and diversity cases is not the meaning of

"original jurisdiction" but rather the requirements of sections

1331 and 1332. Under § 1331, the sole issue is whether a federal

question appears on the face of the plaintiff's well-pleaded

complaint; the identity of the parties and the amounts they stand

to recover are largely irrelevant. Section 1332, by contrast,

predicates original jurisdiction on the identity of the parties

(i.e., complete diversity) and their ability to meet the amount-in-

controversy requirement. So the "original jurisdiction" language

in § 1367 operates differently in federal-question and diversity

cases not because the meaning of that term varies, but because the

requirements of the underlying statutes are different.

Nor does this reading of the statute make § 1367(b)

superfluous. By itself, § 1367(a) would authorize a wide variety

of supplemental claims in diversity cases -- counterclaims by

defendants, cross-claims among plaintiffs, claims by and against

intervenors, and so on. Section § 1367(b) is important because it

ensures that this authorization does not functionally undermine the

requirements of § 1332. Suppose, for example, that the defendant

in a diversity case impleads a nondiverse party under Fed. R. Civ.

-32-
P. 14. Section 1367(b) would prevent the plaintiff from asserting

a non-federal claim against the impleaded party. This example, of

course, is Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365

(1978), in which the Supreme Court held that permitting ancillary

(now supplemental) jurisdiction over such a claim would allow

diversity plaintiffs to "defeat the statutory requirement of

complete diversity by the simple expedient of suing only those

defendants who were of diverse citizenship and waiting for them to

implead nondiverse defendants." Id. at 374. Section 1367(b)

codifies Kroger's anti-circumvention rationale, not merely as

against parties impleaded under Rule 14, but in a variety of

situations in which "original jurisdiction" may technically exist

but the exercise of supplemental jurisdiction "would be

inconsistent with the jurisdictional requirements of section 1332."

See Rowe, Burbank, & Mengler, A Coda on Supplemental Jurisdiction,

40 Emory L.J. 993, 995 (1991) (explaining that subsection (b)

implements Kroger's rationale). Nothing about our interpretation

of § 1367(a) obviates this provision.

Admittedly, our reading of § 1367 is not perfect. One

difficulty is that while § 1367(b) does not mention Rule 20

plaintiffs, it does refer to "claims by persons proposed to be

joined as plaintiffs under Rule 19" -- a reference that is

technically unnecessary under our reading of the statute, since the

joinder of a nondiverse party as an indispensable plaintiff would

-33-
likewise destroy original jurisdiction under § 1332.15 See, e.g.,

Gonzalez v. Cruz, 926 F.2d 1, 5 (1st Cir. 1991). And, on policy

grounds, there are certainly litigation efficiencies to be gained

by an interpretation of § 1367 that would permit Beatriz's family

members' claims to proceed in federal court alongside her own. See

Stromberg, 77 F.3d at 932.

But no reading of § 1367 is perfect -- the alternative

approach embodied in Stromberg, for example, accords no

significance to Congress's use of the term "original jurisdiction."

In light of the historical and legal context to Congress's

enactment of § 1367, including the settled interpretation of § 1441

and the established limits on pendent and ancillary jurisdiction,

we conclude that Congress intended to preserve the Clark anti-

15
Congress may have included the reference to Rule 19
plaintiffs simply to be clear that a plaintiff joined as an
indispensable party under Rule 19 is in exactly the same situation
as one who intervenes as of right under Rule 24(a). Before the
enactment of § 1367, ancillary jurisdiction worked differently
under Rules 19 and 24. See generally Rowe, Burbank, & Mengler,
Congress Accepts Supreme Court's Invitation to Codify Supplemental
Jurisdiction, 74 Judicature 213, 215 (Dec./Jan. 1991) (describing
the identical treatment of plaintiffs under Rules 19 and 24 as the
"one modest but significant way" in which § 1367(b) was intended to
alter prior law).
Similarly, others have offered explanations for the reference
in § 1367(b) to claims against persons made parties under Rule 19
or 20. See, e.g., Pfander, Supplemental Jurisdiction and Section
1367: The Case for a Sympathetic Textualism, 148 U. Pa. L. Rev.
109, 144-46 (1999) (Rule 20 defending parties); Rowe, Burbank, &
Mengler, Compounding or Creating Confusion About Supplemental
Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, at
957-58 (1991) (hereinafter Rowe et al., Compounding or Creating
Confusion) (Rule 19 defending parties).

-34-
aggregation rule by requiring that the district courts must have

"original jurisdiction" over the "civil action" before supplemental

jurisdiction will lie.

b. Section 1367 and the Complete Diversity Rule

There is a further reason why we reject the alternative

reading of § 1367 set out in the Seventh Circuit's opinion in

Stromberg. As we have said, Stromberg's reading of the statutory

text is, while imperfect, at least plausible. Yet it also has

surprising and far-reaching consequences: if § 1367 permits the

permissive joinder of plaintiffs who cannot meet the amount-in-

controversy requirement, then it also permits the joinder of non-

diverse plaintiffs. Nothing in the statute distinguishes between

the Clark amount-in-controversy requirement and the complete

diversity rule in Strawbridge. So if Stromberg's interpretation of

§ 1367 is correct, Congress overturned nearly 200 years of case law

interpreting § 1332 and authorized a potentially huge expansion of

the federal docket. Moreover, it did so not by amending the

diversity statute itself, but instead by failing to mention Rule 20

plaintiffs in § 1367(b).16

16
Stromberg itself recognized that "[s]upplemental
jurisdiction has the potential to move from complete to minimal
diversity." 77 F.3d at 932. Nevertheless, the court concluded
that § 1367(b) is adequate to protect the interests served by the
Strawbridge complete diversity rule. Id. Like many commentators,
we disagree. See, e.g., Fallon, Meltzer, & Shapiro, Hart &
Wechsler's The Federal Courts and The Federal System 1491 (5th ed.
2003) (describing the omission of Rule 20 plaintiffs from § 1367(b)
as "puzzling" because it allows plaintiffs "to circumvent the

-35-
 We do not think Congress intended § 1367 to work such a

revolution in the law of diversity jurisdiction. Cf. Whitman v.

Am. Trucking Assns., 531 U.S. 457, 467-68 (2001) ("Congress . . .

does not alter the fundamental details of a regulatory scheme in

vague terms or ancillary provisions -- it does not, one might say,

hide elephants in mouseholes."). Congress has long maintained a

policy of restricting diversity jurisdiction, not expanding it,

chiefly by raising the amount-in-controversy bar.17 Indeed, the

same congressional Federal Courts Study Committee that proposed

overturning Finley and codifying supplemental jurisdiction also

proposed eliminating most forms of diversity jurisdiction. See

Federal Courts Study Committee, Report of the Federal Courts Study

complete diversity requirement of § 1332"); Gold, Note,
Supplemental Jurisdiction over Claims by Plaintiffs in Diversity
Cases: Making Sense of 28 U.S.C. § 1367(b), 93 Mich. L. Rev. 2133,
2167 n.140 (1995) (the omission of Rule 20 plaintiffs must be
"inadvertent[]" because a literal reading of § 1367(b) "would allow
plaintiffs to strategically circumvent the complete diversity
requirement"); Rowe et al., Compounding or Creating Confusion,
supra, at 961 n.91 (describing § 1367(b)'s silence about Rule 20
plaintiffs as a "potentially gaping hole in the complete diversity
requirement").
17
In 1887, the minimum amount in controversy was $2,000. See
Act of March 3, 1887, 24 Stat. 552. Since that time, Congress has
repeatedly raised, and never lowered, the required sum. See Act of
March 3, 1911, 36 Stat. 1091 (raising the minimum amount in
controversy to $3,000); Act of July 25, 1958, Pub. L. No. 85-554,
§ 2, 72 Stat. 415 (raising the minimum amount to $10,000); Judicial
Improvements and Access to Justice Act, Pub. L. No. 100-702, § 201,
102 Stat. 4642 (1988) (raising the minimum amount to $50,000);
Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 205,
110 Stat. 3847 (raising the minimum amount to $75,000). We leave
aside the special case of class actions. See infra note 19.

-36-
Committee 39 (1990) ("We believe that diversity jurisdiction should

be virtually eliminated . . . . [N]o other step will do anywhere

nearly as much to reduce federal caseload pressures and contain the

growth of the federal judiciary."). Congress did not accept that

proposal, to be sure, but that hardly suggests it wanted to expand

diversity jurisdiction. On the contrary, only a few years after

enacting § 1367, Congress again raised the amount-in-controversy

bar in an effort to reduce the diversity caseload in the federal

courts. See Federal Courts Improvement Act of 1996, Pub. L. No.

104-317, § 205, 110 Stat. 3847 (raising the minimum amount in

controversy from $50,000 to $75,000). The Supreme Court, too, has

repeatedly admonished that in light of the burgeoning federal

caseload, diversity jurisdiction must be narrowly construed. See,

e.g., Snyder, 394 U.S. at 340-41; City of Indianapolis v. Chase

Nat'l Bank, 314 U.S. 63, 76 (1941); Healy v. Ratta, 292 U.S. 263,

270 (1934).

Against this background, it is implausible to us that

Congress undermined Strawbridge and overturned Clark by such an

unlikely and obscure device as the omission of Rule 20 plaintiffs

from § 1367(b). Nixon v. Mo. Mun. League, 124 S. Ct. 1555, 1564

(2004) (refusing to adopt a textually plausible interpretation of

a statute because it was "farfetched that Congress meant . . . to

start down such a road in the absence of any clearer signal");

Chisom v. Roemer, 501 U.S. 380, 396 & n.23 (1991) ("[I]f Congress

-37-
had such an intent, Congress would have made it explicit in the

statute, or at least some of the Members would have identified or

mentioned it . . . . Congress' silence in this regard can be

likened to the dog that did not bark.").

Moreover, Congress has continued to regard Strawbridge as

good law even after § 1367. Since 1990, Congress has enacted at

least two statutes limiting the rule of complete diversity. Each

time, Congress has done so clearly and conspicuously, carefully

circumscribing the situations in which Strawbridge will not apply.

See Multiparty, Multiforum Trial Jurisdiction Act of 2002, Pub. L.

No. 107-273, § 11020(b)(1)(A), 116 Stat. 1758 (codified at 28

U.S.C. § 1369) (granting the district courts original jurisdiction

over "any civil action involving minimal diversity" between adverse

parties arising from any single accident in which 75 natural

persons died, and further defining "minimal diversity" in the case

of both natural and corporate parties);18 Y2K Act, Pub. L. No. 106-

37, § 15(c), 113 Stat. 185 (1999) (codified at 15 U.S.C. § 6614(c))

(granting the district courts original jurisdiction over "any Y2K

action that is brought as a class action," except where a

"substantial majority" of the plaintiff class is from the same

18
The dissent points to the Multiparty, Multiforum Trial
Jurisdiction Act (MMTJA) as evidence that Congress is backing away
from its long history of restricting diversity jurisdiction. We
disagree. Our conclusion is that Congress is keenly aware of the
limits on diversity jurisdiction and expects those limits to apply
except where, as in the MMTJA, it specifically and unambiguously
alters them.

-38-
state as the "primary" defendants and the claims in the action will

be governed primarily by the law of that state).

Congress thus knows how to limit Strawbridge clearly when

it wishes, and it would have had little reason to enact these

statutes if it believed that it had already undermined the complete

diversity rule in the supplemental jurisdiction statute. Plainly

it did not so believe, and that understanding informs our choice

among plausible interpretations of § 1367. FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) ("At the time a

statute is enacted, it may have a range of plausible meanings. Over

time, however, subsequent acts can shape or focus those meanings.

. . . This is particularly so where the scope of the earlier

statute is broad but the subsequent statutes more specifically

address the topic at hand.").

c. Legislative History of § 1367

Finally, the legislative history of § 1367 strongly

corroborates the conclusion that Congress did not intend to

repudiate Clark or Strawbridge. Resort to legislative history is

appropriate where, as here, the text of a statute is susceptible to

two textually plausible interpretations. Lapine v. Town of

Wellesley, 304 F.3d 90, 97 (1st Cir. 2002); Hernandez-Colon v. Sec.

of Labor, 835 F.2d 958, 960 (1st Cir. 1988). That is particularly

true in this case, given that our sister circuits have reached

conflicting answers to the same question based on the same

-39-
statutory text. Cf. In re BankVest Capital Corp., 360 F.3d 291,

297 (1st Cir. 2004) ("[W]e are hard-pressed to endorse any 'plain

meaning' argument where, as here, other federal courts have reached

conflicting answers to the same question based on the same 'plain'

language.").

The legislative history of § 1367 is somewhat muddled in

its details, but one fact is certain: Congress did not believe

that § 1367 would make significant changes to the law of diversity

jurisdiction. The House Judiciary Committee report -- the only

congressional report concerning the provision that became § 1367 --

stated that the bill was intended to "essentially restore the pre-

Finley understandings of the authorization for and limits on . . .

supplemental jurisdiction." H. Rep. No. 101-734, at 28 (Sept. 10,

1990), reprinted in 1990 U.S.C.C.A.N. 6860, at 6874. The same

report made clear that Congress anticipated no sweeping changes in

the operation of § 1332: "In diversity cases, the district courts

may exercise supplemental jurisdiction, except when doing so would

be inconsistent with the jurisdictional requirements of the

diversity statute." Id.

The bill's sponsors similarly did not believe that § 1367

would alter the fundamental rules of diversity jurisdiction.

Senator Grassley stated that the bill did not "represent major

changes in the law." 136 Cong. Rec. at S17578 (Oct. 27, 1990). He

and other sponsors repeatedly described the bill as

-40-
"noncontroversial." See, e.g., id.; id. at H13313 (Oct. 27, 1990)

(statement of Rep. Kastenmeier). And Congress treated it that way

-- committee hearings on the bill lasted only one day. See Rowe,

Burbank, & Mengler, supra, at 1005 (describing the process afforded

to the bill in Congress as "meager"). At no point in the

legislative process did any member of Congress suggest that § 1367

would overturn Clark, undercut the complete diversity rule, or

otherwise dramatically expand federal diversity jurisdiction.19

III.

We hold that § 1367 does not authorize jurisdiction over

Beatriz's family members' claims. Those claims would have been

barred under Clark before 1990, and we conclude that Congress did

not upset that rule when it overturned Finley and codified the

prior law of pendent and ancillary jurisdiction in § 1367.20

19
We express no view on the related but distinct issue of
whether § 1367 overturns the Supreme Court's holding in Zahn v.
International Paper Co., 414 U.S. 291 (1973), that each class
member in a diversity-only class action must meet the
jurisdictional amount in controversy. See id. at 301. The
application of § 1367 to diversity-only class actions is a
different problem for several reasons, including because (1) the
complete diversity rule applies with diminished force in the class-
action context, see Supreme Tribe of Ben-Hur v. Cauble, 255 U.S.
356, 366 (1921); (2) section 1367(b) does not mention Rule 23 at
all, while it mentions Rule 20 at least as to defending parties;
and (3) there are conflicting signals in the legislative history as
to whether Congress intended to overrule Zahn, see Payne, 229 F.
Supp. 2d at 51-52 (summarizing the "murk[y]" legislative history on
this point).
20
The dissent argues that Congress could not have intended
this result because it is too similar to the outcome in Finley,
which Congress meant to overturn. The analogy to Finley, however,

-41-
 The judgment of the district court is affirmed as to

Beatriz's family members. As to Beatriz, the judgment is vacated

and the case is remanded. On remand, Beatriz may elect to proceed

alone in federal court or, if she wishes, voluntarily dismiss her

complaint so that she and her family may re-file in the Puerto Rico

courts.

(Dissenting opinion follows)

is both inaccurate and unpersuasive. Finley involved an
exclusively federal claim under the FTCA; this case is predicated
only on diversity. That is a critical difference: the rules of
pendent jurisdiction have always been more flexible in federal-
question cases than in diversity cases, see supra note 13, no doubt
to facilitate a federal forum for claims arising under federal law.
The federal interest in Beatriz's family members' ability to
assert their state-law claims in federal court is much more
attenuated.
In Finley, moreover, there was no forum available in which the
federal plaintiff could assert all of her claims. See Finley, 490
U.S. at 555-556. In this case, by contrast, such a forum is
readily available: the courts of Puerto Rico. It was the
plaintiffs who chose to sue in federal court. Against that
background, the dissent's judicial efficiency arguments ring
hollow. Cf. Kroger, 437 U.S. at 376 ("A plaintiff cannot complain
if ancillary jurisdiction does not encompass all of his possible
claims in a case such as this one, since it is he who has chosen
the federal rather than the state forum . . . .").

-42-
 TORRUELLA, Circuit Judge (Concurring in part, dissenting

in part II.B). I concur in part II.A of the majority opinion. I

also agree that courts are wise to tread carefully when deciding

cases, such as this, where a court must interpret a statute

defining the parameters of its own powers. My agreement with the

majority opinion, however, ends there.

In an attempt to limit diversity jurisdiction, the

majority opinion mixes a "sympathetic textualist" approach to

statutory interpretation with a dash of legislative intent to reach

a conclusion that is contrary to the plain language of § 1367. The

irony of the majority opinion is that it espouses the virtue of

legislative intent, yet adopts a reading of § 1367 that was never

articulated by any Congressperson or their staff, by any judge or

jurist, nor by any academics, or, most importantly, by any of the

very drafters of the statute from the time the statute was adopted

in 1990, until such "intent" was just espoused in 1998. Section

1367 was the law for over seven years before a new alternative

interpretation of § 1367 was proposed by Professor Pfander and

adopted by the Tenth Circuit. See Leonhardt v. W. Sugar Co., 160

F.3d 631, 639 n.6 (10th Cir. 1998). This dubious approach has now

been adopted by this circuit, despite the fact that it ignores the

plain meaning of § 1367, causes the same word in the statute to

have two meanings, and makes an entire provision of § 1367

meaningless.

-43-
 It is because I believe that a court's role is limited to

applying the statute, not changing the statute, that I respectfully

dissent. In doing so, I join the majority of our sister circuits

that have interpreted 28 U.S.C. § 1367 to grant a district court

jurisdiction to hear a plaintiff's claim that does not meet the

amount-in-controversy, if a co-plaintiff's claim satisfies the

amount-in-controversy requirement.

I. Joinder and class actions

Before analyzing § 1367 and its meaning, one observation

must be made. The majority begins its analysis of § 1367 by noting

that our sister circuits are evenly split on the issue of whether

§ 1367 allows a plaintiff who does not independently meet the

amount-in-controversy requirement of § 1332 to remain in federal

court. This statement is misleading. While it is true that only

two circuit courts, the Third and Seventh Circuits, have addressed

§ 1367's applicability outside the context of a class action, in

reality, five circuit courts have interpreted § 1367 to allow a

plaintiff who does not independently meet the amount-in-controversy

requirement of § 1332 to remain in federal court, whereas three

circuit courts require them to take their claims to state court.21

21
Compare Allapattah Serv., Inc. v. Exxon Corp., 333 F.3d 1248
(11th Cir. 2003) (holding supplemental jurisdiction exists in a
diversity class action as long as one named plaintiff satisfies the
amount-in-controversy requirement); Gibson v. Chrysler Corp., 261
F.3d 927 (9th Cir. 2001) (same), cert. denied, 534 U.S. 1104
(2002); Rosmer v. Pfizer Inc., 263 F.3d 110 (4th Cir. 2001) (same),
cert. dismissed, 536 U.S. 979 (2002); Stromberg Metal Works, Inc.

-44-
Rather than addressing these cases and their arguments, the

majority opinion casts them aside by arguing that the class action

context differs from the Rule 20 joinder context. Such a

characterization is misguided for several reasons.

First, the majority opinion fails to acknowledge that for

§ 1367 purposes, Clark and Zahn stand for the same principle. In

Clark v. Paul Gray, Inc., the Supreme Court held that each

plaintiff's claim must meet the amount-in-controversy requirement.

306 U.S. 583 (1939). In Zahn v. Int'l Paper Co., the Supreme Court

held that each class member's claim must meet the amount-in-

controversy requirement. 414 U.S. 291, 301 (1973). Thus,

Clark "is the nonclass analog to Zahn. Section 1367, on its face,

overrules Clark, just as it overrules Zahn." Richard D. Freer, The

Cauldron Boils: Supplemental Jurisdiction, Amount in Controversy,

and Diversity of Citizenship Class Actions, 53 Emory L.J. 55, 58

n.19 (2004).

v. Press Mech. Inc., 77 F.3d 928 (7th Cir. 1996) (holding
supplemental jurisdiction exists over a party who failed to meet
the amount-in-controversy requirement); In re Abbott Labs., 51 F.3d
524 (5th Cir. 1995) (holding supplemental jurisdiction exists in a
diversity class action as long as one named plaintiff satisfies the
amount-in-controversy requirement), with Trimble v. Asarco, Inc.,
232 F.3d 946 (8th Cir. 2000) (holding supplemental jurisdiction
does not exist in class action diversity case); Meritcare Inc. v.
St. Paul Mercury Ins. Co., 166 F.3d 214 (3d Cir. 1999) (holding
supplemental jurisdiction does not apply to a diversity case);
Leonhardt, 160 F.3d 631 (holding supplemental jurisdiction does not
exist in class action diversity case).

-45-
 This position has been adopted by every circuit court to

consider the issue. As the Seventh Circuit noted, "§ 1367 does not

distinguish class actions from other cases . . . [and section 1367]

affects Clark and Zahn equally." Stromberg Metal Works, 77 F.3d at

931.22 Similarly, the Third Circuit, the only circuit with which

the majority aligns itself, admits that "the line of cases from

Pinel to Zahn applies equally to joinder cases and class action."

Meritcare Inc., 166 F.3d at 218.23 The purpose of Zahn was to

clarify that, for amount-in-controversy purposes, the proposition

established in Clark applies in the class action context. See

Zahn, 414 U.S. at 301; Snyder v. Harris, 394 U.S. 332, 335-37

(1969) (treating class actions the same as cases with joined

plaintiffs for purposes of aggregation rules).

Second, if a distinction were to be made between class

actions and joinder, the distinction would favor allowing

supplemental jurisdiction in joinder situations, and not in class

action situations, as "it is hard to avoid remarking that allowing

thousands of small claims into federal court via the class device

22
See also In re Brand Name Prescription Drugs Antitrust
Litigation, 123 F.3d 599, 607 (7th Cir. 1997) (agreeing that § 1367
allows supplemental jurisdiction in either a class action or
joinder situation); Rosmer, 263 F.3d at 122-29 (Motz, J.,
dissenting) (interpreting the majority's interpretation of § 1367
to apply to Rule 20 joinder as well as class actions).
23
See also, Richard D. Freer, Toward a Principled Statutory
Approach to Supplemental Jurisdiction in Diversity of Citizenship
Cases, 74 Ind. L.J. 5, 21-22 (1998).

-46-
is a substantially greater expansion of jurisdiction than is

allowing a single pendent party." Stromberg Metal Works, 77 F.3d

at 931. Thus, it is "easy to imagine wanting to overturn Clark but

not Zahn; it is much harder to imagine wanting to overturn Zahn but

not Clark, and we have no reason to believe that Congress harbored

such a secret desire." Id.

II. The plain meaning of § 1367

When interpreting a statute, the starting point is the

statute's text. See Bennett v. City of Holyoke, 362 F.3d 1, 9 (1st

Cir. 2004). Section 1367(a) provides that district courts shall

have supplemental jurisdiction over claims that form part of the

same case or controversy as any civil action of which the court has

original jurisdiction.24 For diversity purposes, a district court

has original jurisdiction if the plaintiff's citizenship differs

from the defendant's and the claim exceeds $75,000. See 28 U.S.C.

§ 1332.

Section 1367(b) creates exceptions to § 1367(a) if (1)

jurisdiction is based on diversity (§ 1332), (2) the plaintiff is

24
Section 1367(a) states: "(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."

-47-
the party seeking to assert supplemental jurisdiction against

persons made parties under Rule 14 (third-party practice), 19

(mandatory joinder), 20 (permissive joinder), or 24 (intervention)

of the Federal Rules of Civil Procedure or persons proposed to be

joined as plaintiffs or intervene as plaintiffs under Rules 19 and

24 respectively, and exercising jurisdiction over the supplemental

claims would be inconsistent with the statutory requirements of

diversity jurisdiction under § 1332.25

Section 1367(c) creates further exceptions, notably

awarding a district court discretion to decline supplemental

jurisdiction if the supplemental jurisdiction claim predominates

over the claim that has original jurisdiction.26

25
Section 1367(b) states: "In any civil action of which the
district courts have original jurisdiction founded solely on
[diversity], the district courts shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14 [third-party practice], 19
[mandatory joinder], 20 [permissive joinder], or 24 [intervention]
of the Federal Rules of Civil Procedure, or over claims by persons
proposed to be joined as plaintiffs under Rule 19 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."
26
Section 1367(c) states: "(c) The district courts may decline
to exercise supplemental jurisdiction over a claim . . . if-- (1)
the claim raises a novel or complex issue of State law, (2) the
claim substantially predominates over the claim or claims over
which the district court has original jurisdiction, (3) the
district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction."

-48-
 Applying § 1367(a) to the present case is

straightforward. Before supplemental jurisdiction can apply, a

district court must have original jurisdiction over a claim. In

this case, the district court has jurisdiction over Beatriz's

claims because Beatriz is a citizen of a different state than Star-

Kist and has alleged claims for which it is not a legal certainty

that the damages are less than $75,000. See 28 U.S.C. § 1332.

Since the district court has jurisdiction over Beatriz's claims, it

may assert supplemental jurisdiction over Beatriz's family members'

claims if they arise out of the same case or controversy. See 28

U.S.C. § 1367(a). There is no dispute that all of the claims in

this case arise out of the same case or controversy.

Supplemental jurisdiction may attach unless one of the

exceptions applies. See 28 U.S.C. § 1367(b) & (c). The exceptions

pertaining to Federal Rule of Civil Procedure 14 (third-party

practice), Rule 19 (mandatory joinder), Rule 20 (permissive

joinder), or Rule 24 (intervention) are inapplicable to this case

as there are no claims by plaintiffs against persons made parties

under those rules. The further exception pertaining to Federal

Rule of Civil Procedure 19 does not apply as Beatriz's family

members are not indispensable parties. The last exception

pertaining to Federal Rule of Civil Procedure Rule 24 does not

apply as the family members are not seeking to intervene. Thus,

none of the exceptions in § 1367(b) apply.

-49-
 The exceptions in § 1367(c) also do not apply. The

claims of Beatriz's family members do not raise novel or complex

issues of Commonwealth law, their claims do not substantially

predominate Beatriz's claims, and there do not tend to be any

compelling reasons for declining jurisdiction. Thus, a plain,

straightforward reading of § 1367 results in the district court

having jurisdiction over Beatriz's family members' claims.

III. The majority opinion's alternative approach

The majority opinion disagrees with this conclusion,

however, by arguing that the term "original jurisdiction" in

§ 1367(a) has two distinct meanings. In federal-question cases,

§ 1367 applies if at least one claim qualifies for "original

jurisdiction." But, in diversity cases, the majority argues,

§ 1367 applies only if all claims qualify for original

jurisdiction. This contrived reading of § 1367 is wrong for

several reasons.

First, the majority's interpretation of § 1367(a)

violates "the basic canon of statutory construction that identical

terms within an Act bear the same meaning." Estate of Cowart v.

Nicklos Drilling Co., 505 U.S. 469, 479 (1992). In this case, not

only does the majority opinion define identical terms differently,

it defines the same term differently. There is "nothing in the

text of subsection (a) to suggest, even remotely, that there is

-50-
such a difference in meaning." See Gibson, 261 F.3d at 936;

Rosmer, 263 F.3d at 115-16.

The majority opinion appears to be oblivious to this

blatant violation of the rules of statutory construction because it

believes Congress "presumptively incorporated into § 1367 the

longstanding, judicially developed doctrines that determine whether

those statutes confer 'original jurisdiction.'" (emphasis added).

In addition to there being no authority for this "presumption," the

majority incorrectly applies another longstanding doctrine that

accompanies original jurisdiction to reach that conclusion. For

supplemental jurisdiction purposes, the majority contends that the

term "original jurisdiction" in a diversity case requires that

every claim meet the requirement of "original jurisdiction." In

stating this principle, the majority overlooks the process by which

a court determines if "original jurisdiction" exists. Both §§ 1331

and 1332 "confer original jurisdiction over designated 'civil

actions' . . . [which] consist of a cluster of claims, . . . [and

which] the rules of federal subject-matter jurisdiction apply on a

claim-by-claim basis." John B. Oakley, Integrating Supplemental

Jurisdiction and Diversity Jurisdiction: A Progress Report on the

Work of the American Law Institute, 74 Ind. L.J. 25, 41-42 (1998);

see also Freer, 53 Emory L.J. at 82-83. One claim's failure to

qualify for original jurisdiction does not mean that all claims

fail to qualify for original jurisdiction. Whether the case is

-51-
filed in federal court or removed to federal court, "it is

incontrovertible that [§ 1332] . . . requires only the dismissal of

the jurisdictionally insufficient claims, not the entire action."

Oakley, 74 Ind. L.J. at 47; Freer, 53 Emory L.J. at 82-83; see

also Clark, 306 U.S. at 590 (maintaining jurisdiction over one

claim that met the amount-in-controversy and dismissing the claims

that failed to meet the amount-in-controversy). Thus, the fact

that a case contains claims that destroy diversity does not prevent

the court from maintaining jurisdiction over the claims that

qualify for "original jurisdiction." See Oakley, 74 Ind. L.J. at

47; Clark, 306 U.S. at 590; see also Fed. R. Civ. P. 21;

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 834-35 (1989)

(holding that courts of appeals have the authority to dismiss a

dispensable non-diverse party).

The very language of § 1367 incorporates this concept.

Section 1367(a) states that a court shall have supplemental

jurisdiction over all other claims that are "so related to claims

in the action." The "other claims" join the related claims (those

qualifying for original jurisdiction) as part of the civil action.

In this case, Beatriz's claims qualified for "original

jurisdiction." On remand, it will be undisputed that Beatriz's

claims constitute "a civil action of which the district courts have

original jurisdiction." See 28 U.S.C. § 1367. Once the majority

opinion concluded that the district court had "original

-52-
jurisdiction" over the "civil action" consisting of Beatriz's

claims, it should have turned to § 1367's statement that "in any

civil action of which the district courts have original

jurisdiction [(Beatriz's claims)], the district courts shall have

supplemental jurisdiction over all other [related] claims

[Beatriz's family's claims)]." Id. Instead of taking this step,

the majority opinion attempts to redefine the practice of

interpreting § 1332 claims to achieve a result contrary to that

dictated by § 1367.27

Further, the majority's interpretation of § 1367(a)

violates "[t]he cardinal principle of statutory construction . . .

to give effect, if possible, to every clause and word of a statute,

. . . rather than to emasculate an entire section." United States

v. Menasche, 348 U.S. 528, 538 (1955) (internal quotations and

27
The majority attempts to justify its approach by arguing
that Congress should have explicitly stated that supplemental
jurisdiction exists if one claim supports original jurisdiction.
First, such specificity is not required as it is undisputed that
one claim can constitute a civil action.

Second, we can argue "could have" or "should have" ad infinitum.
If Congress had wanted to limit supplemental jurisdiction in cases
such as this, for example, it could have inserted a Rule 20
plaintiff exception into § 1367(b), as it did for other Rules of
Civil Procedure. If Congress had done so, the majority would not
need to resort to its dubious "sympathetic textualist"
interpretation of the statute.

In a case like this, a debate over what Congress could have done
is unproductive and unnecessary when a plain reading of the statute
produces one clear result: a district court has jurisdiction over
supplemental claims if the district court has original jurisdiction
over a claim in the civil action.

-53-
citations omitted). The majority's interpretation of § 1367(a)

eviscerates portions of § 1367(b). As the majority is forced to

admit, its interpretation of § 1367 makes the Rule 19 exception in

§ 1367(b) "unnecessary." What the majority does not admit is that

its interpretation makes other provisions of § 1367 superfluous.

See Freer, 53 Emory L.J. at 81. For example, according to the

majority's interpretation of § 1367, "original jurisdiction" would

not exist over a claim made by a plaintiff against a non-diverse

defendant joined under Rule 20 of the Federal Rules of Civil

Procedure. The majority's interpretation cannot be correct,

however, because section 1367(b) specifically excepts supplemental

jurisdiction over a claim made by a plaintiff against a non-diverse

defendant joined under Rule 20. See Gibson, 261 F.3d at 936;

Rosmer, 263 F.3d at 115. The only reason § 1367(b) would contain

such an exception is if § 1367(a) provides jurisdiction for joined

claims against non-diverse defendants. If, as the majority

contends, "'original jurisdiction' under subsection (a) were

determined by looking at all the claims in the complaint, there

would have been no jurisdiction under § 1332 (and hence no

'original jurisdiction') in the first place." Gibson, 261 F.3d at

936. Thus, the exclusion of supplemental jurisdiction of claims by

non-diverse parties joined under Rule 20 would be surplusage.

-54-
 IV. Congressional intent & legislative history

Recognizing that its interpretation of § 1367 results in

an "imperfect" reading based on "presumptions," the majority

opinion attempts to buttress its position by referring to

Congressional intent and legislative history. The majority opinion

begins by noting that "Congress has long maintained a policy of

restricting diversity jurisdiction." Relying on "long maintained"

policy is problematic for several reasons. First, Congressional

action in the past sheds little light on what the 101st Congress

believed when it passed § 1367. Rather than speculate on what was

done in the past, it is more fruitful to look at the actions of the

Congress that adopted § 1367. In 1990, the same Congress that

passed § 1367 was given the Report of the Federal Courts Study

Committee which recommended "diversity jurisdiction should be

virtually eliminated." This recommendation was rejected by

Congress. We should not achieve through judicial action what the

Federal Courts Study Committee could not convince Congress to

achieve. Ultimately, it is not unreasonable to believe that

Congress read the plain language of § 1367, recognized that it

allowed diversity jurisdiction for supplemental plaintiffs, and

voted for it.

Second, the continued validity of Congress's "long

maintained policy" of restricting diversity jurisdiction is called

into question by Congress's expansion of federal jurisdiction based

-55-
upon minimal diversity in the Multiparty Multi-Forum Trial

Jurisdiction Act in 2002. See 28 U.S.C. § 1369.

Third, and perhaps most convincing is the fact that a

proposed amendment achieving the majority's result in this case,

that would limit supplemental jurisdiction in Rule 20 & 23 cases

has been circulating in Congress since 1998. Freer, 53 Emory L.J.

at 58-59. This amendment has done nothing more than circulate for

six years. Id. Congress has reasonably rejected that view.

To conclude its opinion, the majority cites to an

admittedly "muddled" legislative history for support. The

legislative history, however, is so sparse and contradictory that

it neither supports nor undermines the majority opinion's

conclusions. Section 1367 was passed by the House of

Representatives with no floor discussion on any part of the

statute. Freer, 53 Emory L.J. at 73. The Senate voted on § 1367

with little debate. Id. The bill was introduced by Senator

Grassley as "noncontroversial."

What little legislative history surrounds § 1367 is

internally contradictory. For example, § 1367 "was said to be part

of the 'less controversial' proposals of the . . . Federal Courts

Study Committee . . . [but] that Committee never drafted a statute

on supplemental jurisdiction." Richard D. Freer, Compounding

Confusion and Hampering Diversity: Life after Finley and the

Supplemental Jurisdiction Statute, 40 Emory L.J. 445, 471 (1991).

-56-
Further, despite the Senator's words, and excluding the controversy

surrounding supplemental jurisdiction, § 1367 was highly

controversial because of its treatment of Rule 19 and its adoption

of a proposal that differed substantially from the Federal Court

Study Committee proposal. See Christopher M. Fairman, Abdication

to Academia: The Case of the Supplemental Jurisdiction Statute, 28

U.S.C. § 1367, 19 Seton Hall Legis. J. 157, 164 (1994).

Perhaps the most relevant piece of legislative history is

the fact that Congress passed § 1367 in reaction to the Supreme

Court's holding in Finley, which held that a plaintiff suing the

United States in a Federal Tort Claims Act case could not join a

defendant, against whom there were only state law claims, without

an independent basis for federal jurisdiction. See Finley v.

United States, 490 U.S. 545 (1989). Had Finley not been overturned

by § 1367, a plaintiff, such as the one in Finley, would have been

required to either (1) split the case in two and bring the federal

claim in federal court and the state claims in state court, or (2)

forsake one of the two claims. To prevent such a result, Congress

enacted § 1367.

The majority opinion in this case achieves a result

similar to that Congress was trying to avoid by overruling Finley.

As in Finley, the plaintiffs in this case must either (1) pursue

Beatriz's claims in federal court and her family's claims in state

court, (2) dispose of her family's claims altogether, or (3) pursue

-57-
all of the claims in state court. The first option leads to a

waste of judicial resources and a potential for inconsistent

verdicts. The second option deprives Beatriz's family of their day

in court. The third option, not present in Finley, deprives

Beatriz of a federal forum and of her right to a trial by jury, as

her case would not receive a jury trial in the Commonwealth

courts.28 As Congress showed by overturning Finley, being faced

with these options should be avoided.

Ultimately, as the majority concedes, the legislative

history is muddled and can be used to support or to contradict

either position. In the end, the unclear legislative history

leaves us where we started: with the text of the statute.

V. Conclusion

The majority proposes an interpretation of § 1367 that

not one Congressman or drafter of § 1367 ever espoused, much less

envisioned. In contrast, I support a plain reading of § 1367 that

even the drafters admitted was the correct plain reading of the

statute.29 The majority proposes an interpretation of § 1367 that

28
The third option is also unrealstic considering judgments
in the Commonwealth courts are far below those awarded in the
federal courts. See, e.g., Stewart v. Tupperware Corp., 356 F.3d
335 (1st Cir. 2004).
29
See Rowe Jr., Burbank, & Mengler, Compounding or Creating
Confusion About Supplemental Jurisdiction? A Reply to Professor
Freer, 40 Emory L.J. 943, 961 n.91 (1991) (recognizing that the
§ 1367 left a "potentially gaping hole in the complete diversity
requirement").

-58-
violates many rules of statutory construction. In contrast, I

support a reading of the statute in which words are not required to

have double meanings and each phrase has a purpose. Last, the

majority's interpretation leads to a waste of judicial resources

and the possibility of inconsistent verdicts. In contrast, I

support a reading which preserves judicial resources.

I am comforted by and conclude with a statement by the

Supreme Court in Finley: "Whatever we say regarding the scope of

jurisdiction conferred by a particular statute can of course be

changed by Congress" or, in this case, by the Supreme Court.

Finley, 490 U.S. at 556.

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