The subsections of 1367: Granteth, Taketh away, Punteth, and Saveth.
Read 1367 carefully. Mark it up. Then work through this handout and re-review 1367 again. Carefully. Then read the cases. Carefully.
Rinse, lather, repeat.
Then and only then, do the problem set. Be prepared to discuss them, I will be calling on students.
1367(a) provides a statutory grant of supplemental jurisdiction (“SJ”).
- Original jurisdiction? Is there original jurisdiction over the action, such as 1331, 1332, 1335, 1338, or some other basis for “original” subject matter jurisdiction? If there is no basis for original jurisdiction, then SJ is not possible at all. In fact, if there is no basis for original jurisdiction, there’s no subject matter jurisdiction at all!
- Same constitutional case? Courts have understood 1367(a) to use the Gibbs test of “common nucleus of operative fact” (“CNOF”). Is there a CNOF between original-jurisdiction claims and supplemental claims? If not, then SJ is not possible at all. Note: it is not entirely clear whether CNOF means the same thing as “transaction or occurrence” (“T&O”). It would appear that if T&O is satisfied, then CNOF is as well. But CNOF may be somewhat broader than T&O.
- “Yes” to questions 1 and 2? If so, then 1367(a) provides a statutory grant of SJ over any additional claims and the joinder or intervention of additional parties. That means you can add additional claims by existing parties, claims by additional parties, or both.
- Always remember and never forget: Remember that 1367(a) grants SJ, but that the grant of SJ may be taken away by 1367(b), and that the court may decline to exercise SJ under 1367(c).
1367(b): TAKETH AWAY
1367(b), when applicable, takes away supplemental jurisdiction in a number of joinder scenarios involving supplemental claims by plaintiffs when original jurisdiction was premised solely on diversity. [Note: I revised this wording 2/13/16.]
- Remember, 1367(b) does not create supplemental jurisdiction. Instead, it operates to take away SJ that would otherwise have been ok under 1367(a).
- What is the basis for original jurisdiction? If original jurisdiction is based solely on section 1332, then move on to the next question. But if original jurisdiction for the CNOF is premised (solely or alternatively) on some other original jurisdictional statute (such as 1331 federal question), then 1367(b) does not take away supplemental jurisdiction, so long as it was granted by 1367(a). That means we don’t need to ask questions 3-5 listed below regarding 1367(b). Instead, you’d move on to analysis under 1367(c) and (d).
- Next, if original jurisdiction is premised solely under 1332, then ask whether applying SJ over any supplemental claims would be inconsistent with 1332. Ask whether exercising SJ over any of the supplemental claims would be inconsistent with section 1332. For example, would one or more of the supplemental claims fail to satisfy the amount in controversy? If so, move on to the next question. But if applying SJ over a supplemental claim would not violate section 1332, then 1367(b) does not take away SJ.
- Next, if exercising SJ over any supplemental claims would be inconsistent with 1332, then ask whether any the supplemental claims fall under one of the joinder scenarios in 1367(b). Note that these are all claims asserted by plaintiffs! These would be claims:
- By plaintiffs against persons made parties under FRCP 14, 19, 20, or 24.
- By persons proposed to be joined as plaintiffs under FRCP 19.
- By persons seeking to intervene as plaintiffs under FRCP 24.
- Finally, determine whether SJ is barred. If original jurisdiction was premised solely on 1332 diversity (Q2), and SJ would be inconsistent with 1332 (Q3), and the claim falls into one of the listed plaintiff-claim scenarios (Q4), then 1367 prohibits SJ over that claim.
Even if SJ is granted by 1367(a), and even if SJ is not taken away by 1367(b), the court has discretion under 1367(c) to “punt,” i.e., to decline to exercise SJ, if:
- The supplemental claim raises a novel or complex issue of State law [the thinking being that state courts might be better equipped to decide new or difficult state-law issues],
- The supplemental claim substantially predominates over the claim or claims over which the district court has original jurisdiction [is the supplemental claim the main issue?],
- The district court has dismissed all claims over which it has original jurisdiction [perhaps less of a need for a federal forum now?], or
- In exceptional circumstances, there are other compelling reasons for declining jurisdiction [catch-all, other good reasons?].
What if supplemental claims are dismissed? What if there is a statute of limitations problem that would prevent refiling in state court? 1367(d) provides a savings clause for any supplemental claims dismissed to temporarily bypass an otherwise-expired statute of limitations period.
The period of limitations for any claim asserted under subsection (a) [i.e., supplemental claims or parties], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a) [i.e., original claims and parties also voluntarily dismissed], shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period [that’s the savings period, allowing a widow of time for refiling in state court].
For further guidance, see:
- 1367 problem set (problems)
- 1367 problem set (explanations, link to be activated after we discuss problems)
- Contamination Rule, which draws an important case-law distinction between amount in controversy and complete diversity
- Aggregation and 1367
Revised Feb. 13, 2016