Dery v. WyerDery v. Wyer
Joseph Kane, New York City (Evans, Orr, Gourley & Pacelli, and Walter G. Evans, New York City, on the brief), for third-party defendant-appellee.
Before HINCKS, LUMBARD and MOORE, Circuit Judges.
HINCKS, Circuit Judge.
In November, 1953, plaintiff‘s intestate, a brakeman employed by the Long Island Railroad Company, was killed when he was knocked from the side of a moving freight car by a gate post located on the land of McKeon Lumber Company. Under the
The district court‘s jurisdiction over the third-party complaint was not questioned below but at our request the point was briefed by the parties and is before us now. The questions for decision are whether the district court had jurisdiction to entertain the third-party complaint, independent grounds of federal jurisdiction being absent;1 and whether federal jurisdiction over the third-party claim, if it once attached, survived the settlement of the main action upon which federal jurisdiction depended. We think that both questions must be answered in the affirmative.
The contemporary sanction for third-party procedure in the federal courts is
To understand the basic theory of
The great weight of authority amongst the federal district court is to the effect that when federal jurisdiction over the subject-matter of the main action once attaches the court has ancillary jurisdiction to decide a third-party dispute growing out of the same core of facts and hence within the scope of the Rule even though the dispute, separately considered, is lacking in the attributes of federal jurisdiction. This appears from the cases listed in 3 Moore‘s Federal Practice, P14.26 n. 6 and 1958 Supplement, page 496. See also Foster v. Brown, Chesnut, Judge, D.C.D.Md., 22 F.R.D. 471. In a number of appellate court opinions there is discussion which clearly supports that conclusion. Lesnik v. Public Industrial Corp., 2 Cir., 144 F.2d 968; Walmac Co. v. Isaacs, 1 Cir., 220 F.2d 108; United States v. Acord, 10 Cir., 209 F.2d 709, certiorari denied 347 U.S. 975, 74 S.Ct. 766, 98 L.Ed. 1115; Sheppard v. Atlantic States Gas Co., 3 Cir., 167 F.2d 841; Williams v. Keyes, 5 Cir., 125 F.2d 208, certiorari denied 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768. Cf. American Fidelity & Casualty Co. v. Owensboro Milling Co., supra. In Bernstein v. N.V. Nederlandsche-Amerikaansche, 2 Cir., 173 F.2d 71, this court recognized the presence of ancillary jurisdiction over a third-party claim thus importing that no independent ground of jurisdiction was required, although, as it happened, an independent ground, diversity, was there present.
Our conclusion as to the ancillary character of a third-party claim under
A rule of procedure, of course, however convenient and salutary it may be, is without efficacy to extend the jurisdiction of a court. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148;
We also hold that the ancillary jurisdiction over the third-party complaint was not lost when the main cause of action was settled. Generally, in a diversity action, if jurisdictional prerequistes are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction. Mullen v. St. Paul Mercury Indemnity Co. v. Red St. Paul Mercury Indemnity Co. v. ,Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845; Hardenbergh v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93. This result is not attributable to any specific statute or to any language in the statutes which confer jurisdiction. It stems rather from the general notion that the sufficiency of jurisdiction should be determined once and for all at the threshold and if found to be present then should continue until final disposition of the action. Moreover, in cases involving the impact of jurisdictional problems on the joinder of claims under
Considerations of policy, as well as the foregoing analogies, accord with our conclusion. If the main claim and the third-party claim are tried together and a decision or a settlement in favor of the plaintiff is announced on the main claim in advance of decision of the third-party claim, to hold that the determination of the main claim ousted the court of jurisdiction over the ancillary claim would in many cases entail a serious waste of effort by both the judge and the litigants. The natural tendency would be to discourage settlements. And the same considerations, though perhaps to a lesser degree, would tend to discourage adjudications on motions and settlements in advance of trial. Confusion would result from such doctrine not only as to the timing but also as to the nature of the event causing loss of the ancillary jurisdiction. If the jurisdictional loss were held not to flow from a settlement of the main claim after trial, can it consistently be held that a settlement thereof at some pre-trial stage will operate to terminate jurisdiction over the third-party claim? Is an out-of-court agreement of settlement an operative jurisdictional
We find no authority in conflict with our holding. It is true that there are a number of cases holding that a court, just as it has discretion under
The merits of the appeal present little difficulty. The plaintiff‘s intestate, a freight brakeman, was killed by being knocked off the side of a freight car which the Railroad was moving into a sidetrack which served the Lumber Company yard. The sidetrack was the subject matter of a contract between the Railroad and Lumber Company which provided that the .lumber Company should “not erect or allow to be erected” any fixture nearer than eight feet from the center of the track. Notwithstanding, the Lumber Company had erected a gatepost which was only about seven feet from the center of the track and it was this post by which, several years subsequent to its erection, the intestate, on the moving freight car, had been knocked to his death. Under the sidetrack agreement the Railroad had the right to relocate the post at the Lumber Company‘s expense, but although it had inspected the sidetrack monthly for years and had used it daily for the transportation of freight, it had acquiesced in the location of the gatepost without complaint to the Lumber Company. The agreement, in a standard form, contained provisions for indemnity and contribution set forth in the margin.6
The judge below found that the accident had been caused by the “concurring negligence of both parties” to the sidetrack agreement and hence was subject
As also indicated in the Wanser opinion, on a finding of concurring negligence a proper construction of the agreement requires that the loss be equally borne. The appellant, invoking New York law, insists that it is entitled to complete indemnification because, it asserts, its negligence was passive; the appellee‘s active. We think, however, that when the parties in clear and unequivocal language have called for an even division of a loss resulting from concurrent negligence, they are bound thereby and may not invoke law which, absent any agreement, would call for complete indemnity. This conclusion also is implicit in the Wanser opinion. But were it otherwise, we could not view that Railroad‘s conduct in pushing the car ridden by the intestate past the post and its long-continued failure to cause a relocation of the post as negligence less active than that of the Lumber Company. This, too, is implicit in Wanser.
Lastly, the appellant insists that Deep Vein Coal Co. v. Chicago & E.I. Ry. Co., 7 Cir., 71 F.2d 963, and other cases which were distinguished in the Wanser opinion are applicable to this case. We disagree. The sidetrack agreement in the Deep Vein case, though containing similar phases, was vitally different in its textual structure: it specially called for complete indemnification for losses growing out of the location of structures in violation of the agreement. That was not the agreement here. And the other cases cited and distinguished in Wanser we think distinguishable also from the case before us.
Affirmed.
LUMBARD, Circuit Judge (dissenting).
I would reverse the judgment of the district court and remand with directions to dismiss the third-party complaint because the district court at the outset lacked jurisdiction over the impleaded state claim.1-1 My colleagues fail to recognize that the invocation of ancillary
Under the applicable state law the facts upon which the Railroad‘s federal liability to the plaintiff rests cannot be relitigated in a subsequent action held in a state court to determine whether both the Railroad and the Lumber Company are responsible for any or all of the $30,000 settlement under the provisions of the indemnity agreement or whether one of them must bear the full loss. Since it therefore appears that no prejudice could have resulted from the denial of ancillary jurisdiction, it was error for the district court to retain jurisdiction over the indemnity claim, however convenient it may have been for the litigants to try the state claim in a federal court.
The exercise of federal jurisdiction over a state claim, without statutory authorization, requires the use of the court‘s ancillary power to extend federal jurisdiction to its constitutional limits. Hart and Weschler, The federal Courts and the Federal System (1953) p. 804. The invocation of such extrastatutory power cannot turn on the mere exercise of discretion, as would be the case if the litigants’ convenience were the test, but must be justified by a compelling and definable federal interest. There is an undoubted federal interest, for example, in the exercise of ancillary power to protect one who, because he is required to litigate a claim in a federal court, may be compelled to reestablish in a state court the facts upon which his federal liability rested and thus may be subject to the hazard of inconsistent verdicts. Walmac Co. v. Isaacs, 1 Cir., 1955, 220 F.2d 108, 113-114.2-1 In Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, the Supreme Court held that it was appropriate to exercise ancillary jurisdiction over a state claim in the absence of diversity if it concerned substantially the same set of facts as the federal claim, not merely to achieve economy of effort but also to avoid the possibility of prejudice to a federal litigant arising from the problems of res judicata and finality of judgment that would be posed should the federal court decline jurisdiction over the pendent state claim. See, Musher Foundation, Inc. v. Alba Trading Co. Inc., 2 Cir., 1942, 127 F.2d 9, 11 (dissenting opinion of Judge Clark).
Here Judge HINCKS, in my view misconstruing the rationale of Hurn v. Oursler, maintains that merely because the thrid-party dispute grows out of the “same core of facts” as the federal claim, a federal court may exercise ancillary jurisdiction over both disputes. But the application of the principle of Hurn v. Oursler depends not on the mere identity of facts that may happen to underlie
By its motion to implead the third-party defendant, the Railroad seeks to protect itself from the hazards to relitigation. The question the district court should have asked in passing on the motion was whether the Railroad, the defendant in the main action, would be subject to the risk of substantial injury if its motion were denied. Had this question been asked in this case it would have appeared, on the inspection of New York law which governs the state indemnity claim, that none of the facts relevant to the establishment of the federal claim could be relitigated in a state court. Under the law of New York, although the indemnitor does not expressly stipulate in the indemnity contract to be bound by a recovery against the indemnitee in an action to which he is not a party, the indemnitee may make such a recovery conclusive against the indemnitor by giving him notice of the pending action and an opportunity to defend against it. Culver Contracting Corp. v. Humphrey, 1935, 268 N.Y. 26, 41, 196 N.E. 627; MacArthur Brothers Co. v. Kerr, 1915, 213 N.Y. 360, 364, 107 N.E. 572. Cf. Sears, Roebuck & Co. v. 9 Ave. 31 Street Corp., 1937, 274 N.Y. 388, 407-408, 9 N.E.2d 20. Once such notice was given to the Lumber Company, and subsequent federal judgment that the Railroad breached its non-delegable duty under the
It is apparent from the face of plaintiff‘s complaint that proof of her F.E.L.A. claim would turn on whether the gatepost was located too close to the track along which plaintiff‘s intestate was riding at the time he collided with the post and was killed. To establish the Railroad‘s liability, the plaintiff would neither be required to prove, nor would it have any interest in proving, whether it was the Railroad or the Lumber Company which was primarily responsible
Of course, if, under the indemnity contract as construed by New York law, there was a substantial risk that the refusal to hear the indemnity claim in a federal court would prejudice the defendant, the exercise of ancillary power would be warranted. But in this case, in support of its motion to implead the Lumber Company, the Railroad can only plead a very different and lesser interest, its own convenience in being able to litigate all its rights in this case in a single forum. Weighted against the cardinal principle that the federal jurisdiction is limited by the Constitution and Congressional enactment, the convenience of the Railroad is an insufficient interest to justify the exercise of a federal court‘s ancillary powers. See Frind v. Middle Atlantic Transportation Co., 2 Cir., 1946, 153 F.2d 778, 779; Note Multiparty Litigation in the Federal Courts, 71 Harv.L.Rev. 874, 906, 911, 976, 992-993 (1958). See also 4 Moore‘s Federal Practice 136, 140, 145-46, discussed in fn. 3 supra.
For these reasons, I think that my colleagues erroneously treat the assumption of jurisdiction as a matter of discretion turning on the convenience that may be achieved. It seems to me most unfortunate that the basic rationale of ancillary jurisdiction is thus obscured.
My colleagues have reached their result in order to accomplish what may well be a desirable objective. In view of the crowded calendars in many state and federal courts, the demand to ease the litigation burden of the parties and the need to conserve judicial time, there is undoubtedly much to be said for trying these two actions together. But the real question and the source of this controversy is whether these interests are sufficient to justify the extension of federal jurisdiction accomplished by my brethren without statutory authorization.
The assumption of federal jurisdiction over an impleaded state claim raises a serious question as to the constitutional scope of the federal judicial power, and the interest of convenience which is asserted here in support of jurisdiction is insufficient to justify our reaching such a problem. Therefore it seems to me that it is for Congress to take the step of extending federal jurisdiction to take account of the litigants’ or the court‘s convenience.
If the district court dismissed the third-party complaint there would still be ample time for the Railroad to bring its indemnity action in the New York courts as the liability of the Lumber Company did not arise until the Railroad was compelled to pay the plaintiff and hence the New York six year statute of limitations for actions on a contract has not run.4-1
Accordingly, I would reverse the judgment of the district court and remand with instructions to dismiss the third-party complaint for lack of jurisdiction.