*1
only
compensation
for libel extends
Family
v.
Luke
American
Mutual Ins.
injury. Consequently,
for actual
1015,
(8th
there
476 F.2d
Cir.),
6n.
recovery
presumed
pu-
cannot be
for
denied,
856,
cert.
damages,
nitive
unless there is suffi-
trict court for consistent principles with the enunciated in Gertz Welch,
v. Robert Inc. brings question— This us to the final urged sup- here for the first time plemental briefs—whether Joseph al., Appellants, McGraw-Hill W. et HALES publishing exercising article qualified privilege a conditional or un- STORES, INC., Appellee. WINN-DIXIE der the South Dakota statute.4 No. 73-1153. presented This defense was to the dis- Appeals, United States Court of judge trict in the motions for directed Fourth Circuit. judgment verdict and for o. v. n. After Argued June 1973. responsible careful and consideration of this issue the court ruled the article did May 8, Decided 1974. not fall ilege. qualified priv- within the rule of Concurring Dissenting Opinion June 1974. A review of South Dakota law July 12, Addendum prolong would serve further opinion. extended We have examined the authorities and are satisfied that the judge’s district evaluation of law application
and his of it to the facts upset. Although
should not be as a re viewing court we are not bound irrevoc
ably to judge the decision of the district involving law, case local nevertheless, here, when, as the district
judge law, is conversant with local give special weight we to his determina Highway
tion. See Moses, Const. Co. v. 1973);
483 F.2d 814 n. 2 S.D.Comp.Laws A (3) person privileged [*] In a interested, interested communication, [*] communication is 20-11-5 [*] therein, one who stands without :¡i (1967) one made: malice, : who interested ing such relation to the nocent, [*] to afford a reasonable sH s|: or who motive for give requested the communication person ground interested information suppos- person in- *3 Philip Covington, Garner, C., L. N. for
appellants. Newsom, Durham, James L. N. C. (Newsom, Hedrick, Graham, Strayhom, Murray Durham, Bryson, C., & N. appellee. brief), for WIDENER, Before WINTER Judges, KAUFMAN, Circuit Dis- Judge. trict KAUFMAN, FRANK A. District Judge. complaint, unverified two-count employees subsidiary former
four
Stores,
(Winn-Dixie)
of Winn-Dixie
Inc.
damages1 against
I
seek
regard
proceed
Plaintiffs also seek
in a
tive relief. No issues with
class
june-
declaratory
action
and to
and in
obtain
those matters are before this
Program
concerning
pay-
information
make
failure
Winn-Dixie
308(b).
allegedly
under 29 U.S.C. §
due
ments to them
Program
Sharing
“Employers
Profit
Stores,
(Program)
Inc.”
Winn-Dixie
recovery
under 29
under Count II
upon us to
incumbent
first
alleged
fail-
for Winn-Dixie’s
herein the basis for
discuss
statutorily required
provide
infor-
ure to
pro
II.
Program.
concerning
mation
:
vides
308(b),
of the Wel-
a section
U.S.C. §
origi-
courts shall have
The district
Act
and Pension Plans Disclosure
fare
jurisdiction,
exclusive
nal
301-309,
(Act),
provides:
29 U.S.C. §§
States,
action
courts
Any
(b)
of a
administrator
recovery
proceeding
or en-
refuses, upon the written
fails or
who
any fine, penalty, or for-
forcement of
beneficiary
request
participant or
of a
otherwise,
feiture,
pecuniary
in-
*4
plan,
publica-
make
covered
such
to
Congress.
any
Act of
curred
days
thirty
such
tion to him within
requirement
amount
No
provi-
request,
in
with
accordance
regard
1355. See
exists with
to Section
title, of
a
sions of section 307
(E.
383,
Kern,
F.Supp.
384
v.
87
Woods
description
an annual
Thomas,
D.Pa.1949);
Sampson
76 F.
v.
containing
report
the information
691,
Supp.
(E.D.Mich.1948);
Powell
693
quired
of this
305 and 306
sections
(M.D.Pa.
Rhine,
F.Supp. 953,
71
954
v.
title, may
be-
discretion
in the court’s
also Daniel v. First National
See
any
participant
to
such
come liable
denied,
Bank,
353, 354,
228
F.2d
reh.
227
beneficiary making
request
in
citing
(5th
1956),
at 227
F.2d 803
Cir.
day
a
from
the amount
$50
2,
Bank v.
354 n.
First National
F.2d
date of such failure
refusal.
144,
141,
Morgan,
10
132 U.S.
S.
However,
37,
(1889).
jurisdiction
statute important authorizes of a have become “an factor “penalty” Huntington commerce”, are set forth in v. arid that in the inte- 224, Attrill, 657, 146 13 L. S.Ct. 36 rest of U.S. the “free flow of commerce” (1892), plans Ed. 1123 and have been subse disclosure of the terms of such quently discussed other cases includ made. In 29 the Con- U.S.C. § ing Montgomery, gress v. policy Porter 163 F.2d 211 declared that it is the (3d 1947); Johnson, protect Cir. v. 84 McCrae Act “to interstate commerce”. F.Supp. (D.Md.1949) J.). running (Chesnut, imposition 220 The fa- duties
841 persons held, opportunity timely vor been juris- has to amend their statutes, allegations connection with other respect consti- dictional Congress regulating by alleging tute an “Act of Count II toas meaning commerce” within the count, Sec under 28 U.S.C. 1337. tion In Imm v. Union R. 289 (3d Cir.), denied, F.2d 860 cert. 368 II U.S. L.Ed.2d Program of Winn-Dixie its Goodrich, Judge holding (1961), (hereinafter subsidiaries sometimes Employees’ Liability Act Federal Employers”) called “the relates to cer- “regulating an act commerce” with qualified participating employees. tain meaning in the of 28 U.S.C. § The four in this case fall quoted adopted from and Professor “ group. Employers within that con- regu Bunn’s view that Charles ‘[a]cts tribute to a funds trust fund and retain lating phrase is used commerce’ [as right any no to assert claim to owner- coming rapidly are 1337] ship any over of the assets of the trust basis mean all acts whose constitutional Program provides fund. The for its ad- the commerce clause”. See Bal Sharing ministration a Profit Com- Lines, Inc., lard Moore-McCormack v. composed (Committee), mittee of from holding F.Supp. (S.D.N.Y.1968), 285 similarly members, three to majority seven Lieber Act. Jones required participating whom are to be F.Supp. (W.D.Pa. Cook, v.man employees. All Committee members are Moyer 1972), Kirkpatrick, 265 F. appointed subject to removal per (E.D.Pa.1967), Supp. aff’d cur Winn-Dixie’s Board of Directors. Al- iam, (3d 1968), are F.2d though all monies contributed contrary. hold Those cases not to the Program fund, paid to a trust Pension Plans that the Welfare and Committee rather than the Trustees give rise itself Disclosure Act play primary seems to role in admin- other than cause of action istering Program. Among the ex- challenging the exercise administrator’s powers, responsibili- tensive duties and Thus, fail duties. of his disclosure *6 ties of the of Committee are allocation provisions of comply with the ure to Program, of forfeitures and contributions made alleged in I in this employer participating each em- present, case, under U.S.C. § does not ployees; profits allocation of annual “arising Act. under” that losses from the trust to the ac- fund Banking Pennsylvania v. First McCorkle participants; of of counts establishment F.2d and Trust contingency pro- a trust fund account to Corporation, 1972); Barlow v. Marriott vide costs; losses or other certain (D.Md.1971). F.Supp. How partici- determination whether of in ever, claims, stated those such as pating employees their should forfeit duty II, dis of relate to which misconduct; rights notifica- because employee, under do arise to an closure Program’s employees tion of all Disclo Plans Pension and the Welfare general provisions; di- existence and its Act, assertions constitute sure recting trust fund of the trustees rights have been federally which created investments; keeping vari- make certain “regulating purpose of created informing employees an- ous records in used words are those commerce” accounts; nually of their trust fund regardless ab Thus, of the Section 1337. em- determining in the manner under jurisdictional amount of the sence be distributed. ployee accounts should ju 1331(a), or not or whether Section important Pro- to note that the It is ju Section exists risdiction Di- gives Board gram Winn-Dixie’s pur present II is to Count risdiction remove appoint power to rectors Upon remand to Section suant trust- as the well members as Committee plain afford shall the District amend, fund, and trust ees of 1653, to 28 tiffs, pursuant modify, plaintiffs or even terminate both the Pro- in accordance with the disclo- gram provisions and the trust fund and amend Act”, sure in contained i. e., the trust5 from time to time. 308(b). plaintiffs Thus, U.S.C. § allege that on the date filed the 308(b) exposes, subject complaint none of them had received the Court, “any the discretion of the admin- requested However, information. none pension istrator” of plan a welfare and plaintiffs any has stated in document, Program such as the involved in this unverified, verified in filed this case case, who fails or refuses written specific spe- on what date or from request what participant publica- of a to make person requested cific he such informa- thirty days tion to him within of such tion, or the mode or content of request description plan of a request by him, except made containing that one report an annual information plaintiffs, Hales, the four required by an affida- penalty statute, to a of $50 vit filed day has stated: from the date of such failure or refusal. The term “administrator” May That in a further 304(b)(1) defined in 29 U.S.C. as fol- attempt rights to determine his lows: profit sharing plan, defendant’s he re- quested writing (b) from Mr. James term “administrator” Cameron, Vice-Chairman of the de- chapter, whenever used in this refers Sharing Committee, fendant’s Profit to— copy plan. re- That he has not (1) person persons designat- copy date, ceived as of said but ed plan terms of the or the instead received a letter from Mr. bargaining agreement collective advising Cameron him that such a responsibility control, for the ultimate copy him was available for to examine disposition, management headquarters the Committee * * * money contributed; received or Jacksonville, Florida. In Count complaint, plain- II of the Nor has one of the four allege tiffs thirty more “[t]hat than precise days stated number days (30) prior filing of this ac- per which he seeks award of the $50 plaintiff tion individually each has day amount set forth 29 U.S.C. § quested writing from the defendant a 308(b). copy description of said \i. e., Program], including District Court concluded that all amend- Winn-Dixie was not the ments and “administrator” thereto” modifications Program meaning defendant, within the “[t]hat as administrator of 304(b)(1), concluding plan, said pro- has failed and refused to Program designates requested vide the Committee as information to the *7 provides Program Program provides 4. of the Section 8.1 of the Section 10.3 : : Program Instru- by The The terms and form of such Trust shall be administered a may changed Sharing composed Profit ments be and amended from Committee to be of by by adopted ma- (3), not time time less than to resolution three nor more than sev- jority PROVIDED, (7) Board; persons, majority en vote of the the of whom shall HOWEVER, participating employees, ap- be amendment or that no such who shall be responsi- pointed change Board, shall increase the duties or from time to time the bility subject shall be of the trustee therein unless named to removal the Board and in writ- shall has thereto serve trustee consented until their successors shall have ing. appointed qualified. both of been The trustee named in either or and replaced may be such Trust Instruments 9.1(b) Program provides 5. Section of the Board, by the one or trustees selected more part: may named be trustees so and the trustee or Company right The shall have the to changed Board. time to time the from modify Program amend or this the and/or may Employers the Persons associated with Trust Instruments time and from trustees. act as such trustee or may time to time and to such extent as it * * * deem advisable. disposed of, may having change responsibility for the ultimate it either the Program management disposition or of terms of the control, trust instru- money replace existing to the ments or contributed the received Committee Program places Program persons a members and and that the trustees with more “[n]otify liking. duty Thus, to all Winn-Dixie’s on the Committee Winn- writing clearly employees the existence Dixie seems to fall within the Program language general 304(b)(1) provisions the and ” person designated by . the District the terms of Program responsibility in his “with for ul- commented Hales’ statement request control, disposition, manage- timate he his affidavit directed Program Cameron, ment” to “Mr. information James monies received (Emphasis Profit supplied). of the defendant’s Vice-Chairman contributed. Sharing Accordingly, that, Committee”, the de- not to and Court concludes fendant, express policies consistent with and Winn-Dixie. purposes Act, corpo- remedial power, specifically Winn-Dixie’s employer rate itself the “administra- given by Program, the terms meaning tor” within of Section mem appoint Committee remove 304(b)(1) it when to itself reserves the trust fund and bers and trustees powers pension over welfare and fund amend, modify, the Pro or terminate plans possesses such as Winn-Dixie un- gram related and trust instruments Program. der the Wirtz v. Gulf Oil Cf. gives over ultimate control it thereto Corp., F.Supp. 483, (E.D.Pa.1 Program monies be man will how 965). Coble, F.Supp. Harrold v. aged disposed of. If Winn-Dixie (M.D.N.C.1966), aff’d, 380 F.2d way approve the Pro does contrary. 1967), managed being not to the gram monies are determining eligibility interpreting Packing Young Cudahy 50 C.C.H.Lab.Cas. 6. plan. (N.D.Ga.1964), terms of the 19,362 concluded ¶ company, provides corporate Insurance sued under Sec that a defendant coverage participants. insurance administrator was not tion plan Corporate delegated trustee, appears which is question. In that responsibilities safekeeping certain power corporate for the defendant the sole ap of assets or question investments thereof. had over employee 5. Individual an pointment officer or Board a Pension members to respon- delegated employer, certain who over extensive control which exercised day-to-day management aof plan. Thus, Young sibilities for plan. inconsist not seem does interpretation “ad of the word ent with the guidelines Although Department are not meant those case. ministrator” Lab.L.Rep.No.7739, “ad- (4 put be conclusive on the issue who of Labor has out Act, following to be noted p. (1962) guidelines it is 12,837 ministrator” employer Department persons has listed help determine whether person may the “administrator” as a who under the Act: “administrators” delegated committee, pension Among responsible and listed those who responsibilities de- in connection plans certain ternjining are: administrators interpreting eligibility Employers (cid:127) ordinarily pension plan, employers terms aof Associations Employee organizations case, the Com- (unions) In this “administrator”. Employee beneficiary mittee have duties connection associations interpreting determining eligibility *8 labor-management trustees boards of Joint 5.4; VII, Program. Y, 7.-§ See Art. Art. Thus, or committees other Boards of trustees Department’s 4; the under joint labor-management Art. VII. boards or than appears guidelines, would it the Committee committees. ordinarily following the “administrator” be deemed Ordinarily, is the ad- the none of strengthening Program thereby the of the : ministrator is “adminis- delegated the administrator, inference that Winn-Dixie who 1. Paid special case, Moreover, at- in this responsibilities trator”. with in connection certain pow- given plan. to the reserved day-to-day management tention must be the of Program. In delegated the under committee, ers of Winn-Dixie 2. Pension supra. connection, n. see responsibilities that with in connection certain brought Thus, un- the In an action was District Court that held that the against 308(b) mem- der the members of the administration commit- profit-sharing deny estopped tee of bers of a administration Coble were pen- they were committee which the the administered “administrators”. But profit-sharing plan H. Coble, of the L. the sion and District Court after so (Coble). holding, Company refused, the of Coble Construction exercise its discretion, any statutory responsible penal- for the That committee to award was ty finding general plan 308(b) under of the administration charged responsibility the Mr. Honaker was also with had furnished certain in- communicating provi- plaintiff “any principal formation the vio- plan employees of lation of the to the Co- the statute sions of [29 However, 308(b)] purely (at ble. of directors was technical” board appeal appointed plaintiff, Court, On Coble the committee members finding pleasure no who served at abuse discretion the board’s right below, per Court opinion. affirmed in reserved the time to curiam plan, agreement amend the trust thereto, related manner the board that in fact this case Hales desirable, deemed plan to terminate the made demand Vice-Chairman of agreement completely. and trust corporate the Committee and not on the The defendant committee con- members not, defendant itself does far so as the tended the Coble rather than the Com- discloses, record before this Court relate was
mittee
plan
the “administrator”
plaintiffs;
to the other
nor
three
does
308(b).
under Section
District
it,
itself,
in and of
bar Hales’ Section
rejected
argument
Court
following
for the
against
Winn-Dixie. How
(at 37):
two reasons
ever,
relevant,
it will be
in connection
* * *
place,
In the first
indi-
with the
existence
nonexistence of the
defendants,
vidual
as
members
$10,000
amount under
profit-sharing administration commit-
I,
upon
Count
to establish
remand the
tee,
charged
responsibili-
request
date of Hales’
for information
ty
administering
plan
passage,
passage,
and the
or lack of
carrying
provisions.
out its
It can
thirty-day period
under Section
logically
argued
they,
rather
308(b).7
than the H. L. Coble Construction
Company, are
administrators.
Ill
Secondly,
important
and even more
plaintiff brought
complaint,
suit
I of the
Count
persons
respectively complain
certified Mr. Honaker
each
[a
member],
improperly
committee
letter of
have
his
been
denied
being
June
the adminis-
amounts due
them
Pro
plan.
gram.
Diversity
alleged
trators
Since there had
plaintiff
1332(a).8
been a failure to furnish
to exist under 28 U.S.C. §
copy
respect
I,
necessary
with a
and trust With
it
to Count
agreement so that he could
an to
make
review
in this
what
record
casé
independent determination
does
not disclose
to the
does
identity
spect
employees,
adminis-
each of
former
trator,
plaintiff
certainly
Hales, Bridges,
en-
Tart,
in
Eatmon and
rely
repre-
cluding
titled to
and act
the amounts of each
the four
separate
sentation and certification
made
claims since those four amounts
aggregated
purposes
him Mr. Honaker.
not be
question jurisdiction
aggregation
7. See the
discussion
as to
Federal
U.S.
infra
satisfy
alleged
I and
II claims to
1331 is
I. Nor
§C.
as to Count
requirement
body
in the
exist.
the discussion
See
*9
841, supra.
opinion
pp.
Count
I.
at
840 and
Writing
Supreme
determining
for a unanimous
or nonexis-
the existence
Mercury Indemnity
St. Paul
$10,000
tence
the
Sny-
283, 288-
1332(a)(1).
Co. v. Red Cab
303 U.S.
under Section
amount
586, 590,
L.Ed. 845
58 S.Ct.
Harris,
89 S.Ct.
394 U.S.
der v.
(1938),
(1969).
Mr.
stated:
Justice Roberts
See
22 L.Ed.2d
* * *
Britannica,
Inc.,
Hughes
Encyclopedia
governing
The rule
dismissal
Zahn
takings
gation
diversity
behalf
or
Winn-Dixie.
claims. The fact
in
Mercu
jurisdiction
Under the test stated
St. Paul
Section
inde-
is
Co., supra
ry Indemnity
pendently present
Red Cab
Co. v.
in
Count II is,
regard,
at
concludes
this Court
incidental.
granted
not
District Court should
have
Hales,
The maximum
amount that
against
judgment
summary
Hales under
plaintiff
other
pos-
in this
can
$10,000
Count I
to meet
for failure
sibly
seek under 29 U.S.C.
is
§
jurisdictional requirement under 28 U.
presently
not
known
even claimed
1332(a).
Wright,
S.C.
See also C.
plaintiff
Hales
in
other
herein
(2d
Law of Federal Courts
33 at
light
allege
of their failure to
suf-
ed.
relating
requests
ficient details
to their
for information under that
section.
Additionally,
alternatively,
and
may
aggregation
well be that the
even if it
determined on remand that
is
plaintiff
claims of each
under the two
initio
Hales’ claim under Count
ab
is
I
complaint
counts of the
$10,000.
exceeds
“legal
limited to
certainty”
and
a
that to
$8631.36
While the
Bridges,
chances
less
are
“really
Count I
his
claim is
compared
Eatmon
Tart as
and/or
may
$10,000,
for
at
less than”
Hales
will
Hales
be able to establish that
tempt
$10,000
1332(a)’s
to meet Section
claiming $10,000
individuals are
in
jurisdictional
adding
requirement by
aggregate
counts,
under both
never-
diversity
his
I the
claim under Count
theless, they
given
each
should
seeking
recovery
amount of
he
un
is
opportunity
many
so to
While
do.
Stone,
der Count II. See Stone v.
problems
ap-
face in this
Wright
1968) ;
F.2d
peal
making,
their
poli-
own
Miller,
&
Federal
Proce
Practice and
govern
ap-
cies which underlie and
pp.
dure
805-06
plication of the Welfare and Pension
I
II
Counts
each
claims
involve
require
Plans Disclosure
plain-
Act
clearly qualify
under .
tiffs be accorded the liberal and flexible
1332(a)
jurisdictional
but
for
opportunity
in
inherent
this Court’s re-
aggre-
requirement. Thus,
amount
mand as to both Counts and II.11
11. Joinder of claims under Rule
Cab
A’s
back
fied
not
statutory
question
controversy
amount
matter
$12,000
mobile
also is
quirements
For
State X
culties
Similarly,
St. Paul
However,
Co., supra
citizenship
present any special
claims meet
a
requisite
regarding
automobile
example,
rent,
violation
accident
of State
being
for
sues
when
subject
jurisdiction,
cases
Mercury Indemnity
clearly are met since
injuries
if
at 289.
required.
exists between
each of the asserted
B
B
question
of A’s civil
A
in which
Z
accident
an
involve
respect
matter
of State
for
the first
requirements
$11,000
sustained
action in which
standards
State
patent
jurisdictional
no
arises
ordinary subject
only $6,000
rights,
Z
Y and
amount
for back
A and
example
infringement
sues
each
Co.
whether
18(a)
are satis-
diversity.
both of
v. Red
B
federal
claims.
B
claims
claim.
auto-
A
diffi-
rent,
who
does
A’s
A
sufficiently
fair
fringement that when the
with a nonfederal claim for un-
joined two
had
al
separate and distinct nonfederal claim that
order
general
when the basis of
sought
question,
amount.7
claims he has
a
ed for each claim in order
amount
In the second
to the Stone case.]
single plaintiff
requirements.
[*]
citizenship
joined
[The
combine the
competition?
question,
rule is
to be
in
satisfy
independently satisfy
a
lead
[*]
his
federal claims. But
related to
* * *
controversy
party may aggregate
against
federal
citation
joined
basis
example given earlier,
But,
when
damage
[*]
jurisdiction
party may
in an
requisite jurisdictional
the federal
an
if the
a
involves
each
requirement.
opposing party
single defendant,
general
amount
%
action
this footnote
for
state claim
of the claims
jurisdiction-
is
satisfy
what
patent
a
claim,
involving
[*]
rule
request-
all
join
federal
if
in-
A
is
A
*11
doubt
that
the
I
Count
and Count
II
IV
grow
claims do not
out of a “common
question as
the
There remains
operative
nucleus of
United Mine
fact”.
any
plaintiffs'
event
to whether
Gibbs,
715, 725,
Workers v.
diversity
maintaina
I
are
Count
claims
S.Ct.
L.Ed.2d
theory
jurisdic
pendent
under
of
ble
the
alleged
The Count
II claims relate to
question is
to that
tion. The answer
beyond
failure
to furnish
information
re-
the
record
“no”.
establishes
tence of
ment of
can
concerned.
tiffs
1332(a)
In
opinion,
course
tablish
as the
tence of
Count II as well
cretion to exercise
n whenit arises out
gate
ute.
the claims
dent
when
18(a)
lowed
pendency
courts have been more
jurisdiction
claim
without
may support
that meets the
quirement
over
to the main claim.
action
each
as
amount,
claim
the need for a
claims,
controversy requirement.
phases supplied.]
pp. 805, 807, 815-16;
Federal Practice and Procedure
except
Finally,
claims of each of the
meet
$
stated at
occurrence,
should be
should
varying capacities.
main claim
the
entire
claim,
problem,
jurisdiction
have no
whether, by
in order
element of
aggregation
In the true
when
the
ease,
bears a
to
is less than that
only
pendent
there is an
none
state
is so able
regard
a claim
join
question
it should
jurisdictional
Accordingly,
ijs
or will
sought
if he asserts at
plaintiff
the reference to n.
controversy
doctrine is
the
when the court’s
$10,000
claim.
allege
of which meet
the lesser claims.
given
noted, however,
these courts
as
need
the
jurisdictional
related
strong
to
to the amount
outset, plaintiff
1332(a).
jurisdictional
gives
diversity
joined
doctrine
many
means of
to be
[*]
single
will not
satisfy
be
under Count
federal
requirement,
be
to establish
base
[6
the
pendent
independent
permitted
factual
noted
in the
asserting his
each
establish the exis-
amount
under
opportunity
joined
totally
claims
When
brought
Wright Miller,
footnotes
required
requisite
party
same transaction
jurisdiction
concerned about
plaintiffs,
[*]
with
the
However,
If
have held that
as to
least one claim
aggregation,
court
arise
base for each
citizenship
body
that unlike
amount
relationship
power
under
jurisdiction
involved
faced
amount
as he
be
action the
will be al-
he will
regard
I,
&
to
unrelated
78;
*
into the
has dis-
the
requisite
by
#
because,
pendent
pendent
require-
omitted
amount
Section
applied
insofar
one
claims
to es-
aggre-
plain-
**
Rule
some
stat-
exis-
with
pen-
over
over
has,
em-
he
to
I.
If,
not be established under the doctrine of
dent
tion
Part
would
opinion
gregate
to
same
seeks
jurisdiction,
gregation, any
event,
for the
diversity
ond claim based
$10,000 jurisdictional
him
federal
hand
two
based
posed
does
presented
claim,
so
plaintiff
either
paragraph
ed
and there
herein
case can establish
1332(a)
II not
II.
plaintiff’s
not a case in which
against
cussion
supra)
risdiction
risdiction
claim
Additionally,
Finally,
apply
exclusively
aggregation
such
however,
established
a
is not
If
not involve
this case even
claims.
jurisdiction
to a
IV of this
solely upon
non-diverse
aggregation
with
case
which can
seldom
solely
both of which are stated
but
only
jurisdictional amount,
jurisdiction by way
that
court
set forth
a federal claim and a nonfederal
a
a
can claim
jurisdiction
between each
express any
non-diverse,
pendent
as
under
is concurrent federal and state
of this footnote.
it should
claims
the
non-diverse defendant
regard
established,
under
for the
jurisdiction
jurisdiction
a diverse
rests
to Count II.
to
seem
if
which a
This
doctrine to
defendant on the other hand
it is
under
of the federal
one of the
questions
if
solely upon
whether
Section
$10,000,
pendent
under
a
Section
defendant.
federal
the federal
to
jurisdiction
opinion,
over one or both of
appropriate
federal
jurisdiction
to
be stressed
purposes
plaintiff
involve
Court
Part
Section
will exist
pendent
defendant.
opinion
two claims stated
a
reasons
amount,
be noted that
defendant,
plaintiff
be entertained
this Court
plaintiff
federal
by way
both Counts I and
plaintiff
as
jurisdiction
set
jurisdiction grant-
I of this
existence of
a
plaintiffs
court,
to Count I can-
is not
infra.
Thus,
1332(a).
diverse,
there is
issue
herein,
jurisdiction,
question
question
forth
aggregation
and a
Here, except
plaintiff
set
then Section
claim.
as to
(see
seeks
question
as
of
establishing
against
there could
has stated
one claim
if
necessary
is
regard
would
forth in
aggrega-
to
required
In
the
opinion,
the dis-
in this
in this
such
clearly
by ag-
this
as
this is
(1332)
second
exists.
to
claim
claim
such
pen-
who
Nor
any
sec-
one
op-
the
ag-
ju-
ju-
be
it
a
a
308(b).
set forth in
quired
certain statements
While
U.S.C. §
dissenting
sought
opinion.
plaintiffs may
in
that latter
have
formation in order
consider and/or
I
claims,
assert their
their causes
Count I
alleged
II
of action under
Counts and
both
Plaintiffs
separately
and determina
maintainable
pursuant to 28
Count II
U.S.C. §
al
ble without
reference to the facts
Accordingly,
examined
leged or
stated in
contentions
jurisdictional allegation,
the com-
noted
*12
regard
Accordingly,
plexity
other count.
con-
involved,
the issue
jurisdiction
pendent
I,
toas
Count
does
cluded not to make
determination
not
Mine
exist.
Workers v.
United
regard
apparent
in
with
view of
to it
Gibbs, supra;
Oursler,
Hurn v.
289 U. presence
jurisdiction
II
as to Count
S.
jurisdiction
required,
plain-
that
Court
to
the District
afford
V
opportunity pursuant
tiffs
to
During
argument,
oral
Court
timely
ju-
to amend their
U.S.C. §
informed that some
the claims assert-
allegations
respect to
risdictional
subject
proceedings
ed herein are
by alleging jurisdiction
to
Count II
as
in one or more Courts of the
State
that Count under 28 U.S.C.
Carolina,
North
that
but
certain other
of the claims
herein can
asserted
no
II
longer
effectively
be
so asserted because
running
of limitations. On re-
dissent,
In Part
I of his
mand, the District
will determine
Court
Judge
differentiate,
appears
Widener
to
orderly way
an
the federal and state
aggregation,
in terms of
from
this case
litigation
proceed.
court
Amdur
to
Cf.
diversity
in
case
there
are two
Lizars,
v.
372 F.2d
claims.
in
Jurisdiction
this case either
For the
above,
reasons
forth
set
exist,
exists or does not
insofar as Count
hereby
within case
remanded
is
for fur
concerned,
I is
under 28
U.S.C. §
proceedings
ther
Court below
Accordingly,
I,
to
as
Count
the sole
opinion.*
accordance with this
jurisdiction
possible
basis for
versity jurisdiction.
di
is
regard
With
to
Judge
Circuit
WIDENER dissents
II,
308(c) provides
portion
opinion
from a
dissenting
of this
and files a
relating
that actions
to 29
opinion.
(b) may
brought
“any
be
court
competent jurisdiction”. The
fact
* ADDENDUM
jurisdiction
concurrently
vested
dissenting opinion
Because the
in this
Section
in federal as well
state
as
opinion
case was filed
ju
after
diversity
courts
mean
does not
filed,
op-
had
present
there
par
been
was no
risdiction
when the
portunity
appropriate
to include
foot-
ties are in
diverse
re
fact
as to their
opinion
regard
words,
*13
tion,
committee,
and not the
the
“ad
Court,
question
as
was raised
District
sharing plan
profit
ministrator”
of the
were
“ad-
the defendants
the
to whether
already
to
tends
confuse an
uncertain
plan
profit-sharing
ministrator”
law, given
area of the
am
the statute’s
agreement.
trust
The District
holding
biguity
prior
and our
in Harrold
alternatively
they were,
that
held
Court
Coble,
(4th
1967),
F.2d
18
Cir.
plaintiff
the
in
sued
event
but
that
affirming
(M.D.N.C.
F.Supp.
persons
had
told
the
whom he
been
were
1966), that
committee under a simi
inquired and
when
“administrator”
he
lar
liable
was
as
“administra
consequence
persons were es-'
those
tor.”
they
topped
the advice
had
to controvert
Coble,
I.
given.
in Harrold v.
In this Court
question
whether
the District
plaintiffs
was
The
four
former
em-
it
when
its discretion
ployees
subsidiary
Court
abused
of a
of Winn-Dixie
penalties.
plaintiff
In
Stores,
(Winn-Dixie).
award
failed to
Their
suit
Inc.
by
opinion
in that
damages against
filed
this Court
for
is based
Winn-Dixie
ques-
they
case there
no discussion
I,
In
two counts.
Count
seek
who
the “administrator”
tion as to
was
to recover
to
Winn-Dixie’s
failure
payments
of the District
alleged
or which of either
Court’s make
to
due them
be
in
the correct one
Employer’s
Sharing
theories
that case was
Profit
determining
Program
Inc.;
amenability
of the de-
Stores,
in
of Winn-Dixie
II, plaintiffs
fendant
therein to suit.
in Count
claim that Winn-
Dixie,
pro-
as “administrator”
of that
opinion in
in
Our
this case is
conflict
gram,
is liable under 29 U.S.C. §
the District
with the first of
Court’s
for its failure to disclose certain infor-
holdings in
do
Harrold. We
alternative
regarding
operation
mation
of that
holding.
agree
not
with that alternative
program.
The Count I claim
un-
arises
Judge
say, however,
to
That
is not
law,
der State
II claim
while
sitting
Stanley,
in the District Court
plaintiffs
arises under federal
law. The
entirely
in
not
correct
was
allege
jurisdiction
federal court
over
concluding
defendant
therein
1332(a)
State
under 28 U.S.C. §
deny
estopped
it was the
(diversity)
and over the federal claim
Further,
proper
there
defendant.
would
(penalty
under 28 U.S.C.
incur-
any inconsistency
appear
be-
Congress).
red under Act of
opinion
tween what
written
granted
summary
this
district
court
stated
case
what
judgment
the defendant
on both
Harrold.
limiting
Congress
power
may
to exclude
While
have
well
law,
diversity jurisdiction
created
it has not done
further
to restrict
so.
to remand the case
have been
I,
court found would
As to Count
claims.
opinion
lacking
court without
no the district
diversity
since
point
with leave to the
plaintiffs
more than merits of
has
of the four
II,
al-
to amend the
controversy;
complaint,
legations
if
was not
found that
the court
Winn-Dixie
deign
majority
program
did not even
un-
chose.1
the “administrator”
procedure
provided
28 U.
to use the
view its
308(b).
der 29 U.S.C. §
permit
II,
disposition
amendment
the federal S.C.
of Count
court,
have
specifically
would
which
course
claim,
the district
court
given
opportunity
ob-
unnecessary
whether
defendants an
it
found
to discuss
by ject,
question
had
might
supported
decided a
but
the Count claim
there
jurisdiction.
raised and about which
pendent
been
controversy.
case or
U.S.
was no
opin-
majority's
so much of the
With
Art. III.
federal courts
Const.
While
may
ion
concern Hale’s
jurisdic
should notice lack of
I,
claim under Count
I am in substantial
motion,
their own
tion on
F.R.Civ.P.
agreement.
Under the test stated
St.
Burgess
12(h)(2),
v. Charlottesville
Mercury Indemnity
Paul
Red Cab
Co. v.
Savings
Assoc.,
(4th
Loan
F.2d
&
283, 288-289,
1973),
the claim of
Cir.
(1938),
appear
851 332, 338, Bridges 337, 1053, 394 22 U.S. nor Eatman of neither claims (1969).4 Similarly, 319 L.Ed.2d Su as much as $10.000. Tart amount to nor preme Co., permitted2 does Sibbach v. Wilson & joinder is The fact 10, 1, 422, 425, 312 61 requisite U.S. S.Ct. 85 L. amount mean that (1941) making Indeed, rule deci- held that the controversy present. Ed. authority inability ju- was limited “the majority, effects sion court, by rule, of a change defi- to extend or restrict in the circuit in this dicial controversy,” con- conferred a statute.” nition “matter of Rule command with the clear flicts Acting pursuant Constitution, con- “(t)hese shall not rules Congress has created several bases for limit the to extend or strued jurisdiction. Among federal court these courts. district the United States 1332(a) (diversity ,”3 Harris, Snyder citizenship See, g., $10,000 v. and more than e. 3. The Procedure Rule why Congress historical found 7 See Wright Procedure rules, Rule original “A or independent many claims, legal, joining as he has does not extend federal rule is der the Federal to such Joinder action, but, Rule tional 45 Shulman and Judge Clark, mere case, plete adjudication “. ciples be confused effectiveness of their power; ted.) Obviously Moore’s Federal Practice content of a joinder into the ambit of desirably federal tions, “These rules Notes of Jale third-party party asserting the union of law and once . Original 18(a) when based use more devices provides 30 on Counterclaims. Limitations and . declaratory while 28 provides L.J. 393 claims and interest, litigation.” of Causes provisions § claim, remarked otherwise, 3141 long reduce U.S.C. jurisdiction counterclaims as this Miller, Advisory felt single Committee actually they compress and a making possible claim, may join, Jaegerman, some grant standing, as counterclaim, Equity (1936).” frequent. draftsman Rule a mere Rule upon jurisdictional in an follows : the extension of Federal Rules of a claim to opposing equitable, on Federal of Action and federal action must rule Federal Practice counterclaims, alternate jurisdictional insight relevant existing practice un- Committee on bulk new extensive Equity is not extended 82, p. issues in a opinion Rules with states, jurisdiction. The Note equity broadening would be even § recognized was Some Jurisdic- (Citation party.” 82.01 devices of more relief Rule cross-claim, here, of 1937 claims, though necessary: more com- or the Procedure, amount either maritime, power *15 Compare [2] See in one prohibi- dragged Equity federal regard federal as an 26 on as to grant Rules makes single Civil than omit- ; 12 prin- steps and free as 968, Lesnik v. statutory grant ed Court held that Federal Rule presented by together stated at 337-338. risdictional amount in risdictional steadily check, the federal jurisdiction.” versy” requirement the federal courts’ has level of $3000 Stat. See 54 S.Ct. successively commenting amount, See Through of different be “From the specified matter moved to the statute calls mination of may sections Congress 973-974 U.S. steadily Zahn, also Zahn v. brought 78, Constitution, in to some in diversity power increased $10,000, stated: Public Industrials 1911, Healy to $2000 in in 700, restricted provide amount. courts, did not separate amount supra, Snyder (2d increased on the the Constitution.” them, .and for various claimants beginning controversy Congress’ purpose in the federal states reserved to 394 raising years, degree, Noting 36 Stat. controversies 703, conformity v. actions S.Ct. set in through district Ratta, for its International especially at n. 1. The unless U.S. of change requirement, purpose 78 the “matter . controversy. 1887, from . provide Harris, suits between citizens requisite 1091, L.Ed. 1958, . at . 292 U.S. was more than a court strict rising the value . Corp., distinct 24 Stat. $500 . 339-340. in Congress courts not be added to the years 72 for the deter- the action of L.Ed.2d 511 1248 scope could neither states, jurisdictional jurisdiction, their construction. Congress Paper caseload of in as amend- the Court citizenship § in contro- Stat. 144 F.2d regard Supreme 263, 270, policy Supreme judiciary 1332(a) 1789, 552, present nor re- (1934), courts, had ju- “to ju- in 1 852 predicated jurisdiction a 28 “Where controversy);
amount
1331(a) (federal
U.S.C. §
claim,
question
as to
question and more than
federal
any joined
controversy);
for relief under state
28
claim
amount in
U.
independent
arising
requires
(cases
law
an
basis
under a feder-
S.C. 1337
§
regulating
pro-
doctrine
unless the
commerce
al statute
tecting
pendent
applies.”
against
restraints
commerce
controversy
trade;
re-
no amount
According to
is now settled doc
what
(fine,
quired) ;
1355
and 28
§
may aggregate
trine,
single plaintiff
penalty,
forfeiture
Act of Con-
arising under
his claims
state law
controversy
gress ;
no amount
thereby
opposing party
quired).
plain-
instant
satisfy
monetary requirement
depend
joined
which
tiff has
jurisdiction.
g.,
diversity
E.
1332(a)
jurisdiction on
their federal
(4th
Stone,
v.
F.2d 94
Stone
405
Cir.
quite possibly
1337. And while
1968);
Co.
Provident Mutual Life Ins.
acknowledging
amount in controver-
863,
(4th
Parsons,
v.
F.2d
Cir.
sy
required
in Court I falls below the
1934).5
always
But federal courts have
$10,000,
plain-
for at least three of the
required,
separate federal
where
tiffs,
majority holds that
these
alleged,
nonfederal causes
action are
aggregate
plaintiffs may each
the sums
basis,
jurisdictional
that each have a
un
claimed in
count meet the mini-
each
may
regard
less
the nonfederal
requirement.
mum
This
“pendent”
ed
the federal claim.6
submit,
construction,
is forbidden
g.,E.
Oursler,
238,
Hurn
v.
Congress'
plainly
82,
Rule
purpose
violates.
586,
(1933);
S.Ct.
tification say that our earlier decision able to fair- economy, convenience dicial contrary. not to the ” litigants; . . . ness the “administra- defines The statute juris- pendent matter Properly, plan as profit-sharing tor” of a developed feel, first should, diction (M.D.N.C.1966). F.Supp. 29 8. 261 designated persons “(1) person or or the collec- the terms agreement bargaining re- tive control, sponsibility the ultimate management of the disposition, or v contributed; or
money received or designa- (2) of such the absence actually persons
tion, person or disposition, control, sponsible for the money management received
or contributed, irrespective of whether or manage- control, disposition, or such through directly exercised ment is designated by agent trustee persons.” person 304(b)(1) and may Clearly, control” the term “ultimate -body single person only to a
refer as to how final determination
which has disposed. moneys shall contributed Dictionary, International New Webster’s suggestion majority’s And the 2nd Ed. compa- and the the committee that both
ny seems be the administrator meaning statute. the clear strain places Similarly, those construction participate adminis-
required in the plans under a profit-sharing tration of determining, burden considerable Bullock, Alexandria, Va., Joseph B. liabili- upon pain of civil and criminal Va., Alexandria, (Henry Zachary, on B. requires them. ties, the law what appellant. brief), for (David Gettings, Atty. Brian P. U. S. brief), Atty., Hopkins,
H. Asst. U. S. appellee. Judge, HAYNSWORTH, Before Chief WIDENER, Circuit and CRAVEN America, UNITED STATES Judges. Appellee, Judge: HAYNSWORTH, Chief v. GIBSON, Appellant. Nathaniel James illegal transmission Convicted wagering No. 72-1697. information violation has the defendant 18 U.S.C.A. § Appeals, United States appealed complaining the district Fourth Circuit. suppress evidence ob court’s failure Argued Oct. 1972.* telephone tap tained from a Commings. of ille Aug. 5, Decided tap, Commings gality is that in the tap probable for that was obtained cause taps part on the tele from earlier phones The authoriza of one Mantello. * May abeyance States v. Giordano United until ed States case held in This pending Chavez. decision the United *18 Supreme date in on that Unit- States notes spective to this citizenship.1 Court’s In other (at 725) 12. It policy also to be Gibbs requiring noted Court knows of no case or specifically jurisdiction pendent diversity jurisdiction may defines only include plaintiff foreign terms of the claims individual state or law claims and must exclude ordinarily expected try would to federal law claims. Federal oc law does on thereby impliedly rejects any lawsuit and brought con- diversity casion control suits pendent jurisdiction jurisdiction. tention that can exist over 1A J. Moore’s Federal Practice separate plaintiffs. separate claims of ¶ [3], 0.324 ¶ 0.305 Undoubted ly, rarely advantages plaintiff, it as does usually 1. While state law claims here, allege diversity present, asserted when when same cannot be said of the converse: some other base is available. Judge (concur- Congress WIDENER, conferred Circuit the fact ring dissenting): on federal concurrent courts the state well courts respectfully dissent, I must both as to present, diversity is mean that when majority’s disposition juris- court cannot federal in a treatment dictional issues and as its 1332.2 pursuant to 28 U.S.C. § exist plaintiffs’ merits immaterial, in terms is therefore 308(b). claim under 29 U.S.C. § aggregation Counts former, majority As to the would II, federal ánd that concurrent I and aggregate permit plaintiff his state jurisdiction is conferred state order meet and federal claims in have 308(c) we II. What requirement under diversity claims. two here are 1332(a); holding, for such a 28 U.S.C. § support, am unable find either Ill latter, law case reason. As to the Coble, supra, is Insofar as Harrold majority’s corpora decision concerned, before when that case was