MEMORANDUM-DECISION and ORDER
Bаsed on the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, plaintiff has brought this action against the United States of America to recover damages for the personal injury and death of Arthur Maltais. The complaint alleges jurisdiction under 28 U.S.C. § 1346, and plaintiff seeks to have this Court exercise pendent-party jurisdiction over related but nonfederal claims asserted against seven corporate defendants. By motion pursuant to Fed.R.Civ.P. 12(b)(1), defendant West Side Structural Company, Inc. (“West Side”) requests dismissal of the nonfederal claims for lack of jurisdiction over the subject matter.
It is undisputed that there is no independent predicate for subject-matter jurisdiction between plaintiff and defendant West Side in the absence of diversity of citizenship. Plaintiff, the widow and executrix of the estate of Arthur Maltais, is a resident and citizen of the State of New York. The only surviving next of kin, heirs, and dependents of Arthur Maltais are plaintiff and their two infant children. Furthermore, the decedent died a resident and citizen of the State of New York. Thus, the issuеs of real party in interest or manufactured diversity are not before this Court.
E. g., Mecom
v.
Fitzsimmons Drilling Co.,
It has long been established that diversity jurisdiction must be based upon “complete” diversity between all plaintiffs and all defendants.
Strawbridge
v.
Curtiss,
*543 Of the seven corporate defendants joined in this action, only one, General Dynamics (Electric Boat Division) (“General Dynamics”) is purportedly not incorporated under the laws of the State of New York. In addition, although Sweet Associates, Inc. (“Sweet Associates”) admitted incorporation under the laws of New York in its answer, it has alleged incorporation outside the State of New York in other pleadings. It is clear, however, that diversity jurisdiction does not provide a jurisdictional predicate for plaintiff’s claims against defendant West Side in this Court.
Plaintiff’s sole allegation of jurisdiction in her complaint is founded on the Federal Tort Claims Act. 28 U.S.C.- § 1346.
See
Fed.B.Civ.P. 8(a)(1). Nevertheless, plaintiff may assert reliance on the doctrine of pendent jurisdiction to justify consideration of additional claims since this Court already has jurisdiction over plaintiff’s claim against the United
States. Leather’s Best, Inc.
v.
S. S. Mormaclynx,
The federal courts are courts of limited jurisdiction and therefore authority to adjudicate disputes must be found in congressional grants of federal jurisdiction as well as Art. Ill, § 2 of the Constitution. In this action, plaintiff does rely-.'on the doctrine of pendent jurisdiction and seeks to have this Court recognize the existence of federal judicial power to entertain claims against parties over whom no independent grounds for the exercise of jurisdiction exists. Furthermore, in this action arising out of a fatal accident which occurred at a construction site in Saratoga County, New York, plaintiff requests that this'Court exercise that power to adjudicate related state-law claims.
Thus presented, defendant West Side’s motion raises two substantial questions: (1) Whether this Court has the power to entertain state-law claims against “pendent parties,” over whom no independent grounds for the exercise of federal jurisdiction exists, in an action brought against„the United Statеs under the Federal Tort Claims Act; and (2) If this federal judicial power exists, whether this Court should exercise that power over the nonfederal claims asserted by plaintiff herein.
I
Since the sole issue now before this Court is a question of law, the facts will only be briefly stated. On June 9, 1975, Arthur Maltais, an employee of the Elwin G. Smith Division of the Cyclops Corporation (“Cyclops”), while acting in the course of his employment fell to his death from atop the S8G Administration and Training Building located at the Kenneth A. Kesselring site of the Knolls Atomic Power Laboratory, West Milton, New York. The building premises and site involved in this mishap are owned by the United States.
Plaintiff asserts that these premises were in the possession and control of the United States, General Electric, General Dynamics, and Sweet Associates during the chain of events that led to decedent’s death. It is alleged that decedent, while in the process of installing insulated metal siding, was handling a reinforcing bar which had been installed near the edge of the roof of one of the buildings at the Kesselring site when the bar allegedly broke and collapsed causing decedent to fall approximately 40 feet.
It is alleged that Cyclops, a Pennsylvania Corporation, had entered into a subcontractors agreement with Sweet Associates to install insulated metal siding on buildings at the Kesselring site. In addition, plaintiff asserts that Northway Decking and Sheet Metal Corp. (“Northway”), Clifton Steel Corp. (“Clifton”), and General Steel Fabricators, Inc. (“General Steel”) are subcontractors and suppliers of steel and reinforcing bars which were used in the construction of the buildings at the Kesselring site. It is further alleged that these corporate defendants along with West Side are responsible for the furnishing and installation of steel at this construction site.
Letters Testamentary were issued to plaintiff, decedent’s spouse, on July 17, 1975. Thereafter, on May 31, 1976, plain *544 tiff filed a claim with the Energy Research and Development Administration (“ERDA”), an agency of the United States, in accordanсe with the Federal Tort Claims Act. 28 U.S.C. §§ 2401(b), 2675. On March 29, 1977, plaintiff commenced the present action individually and as executrix of the estate of Arthur Maltais following the October 7,1976, denial of her claim by ERDA.
Plaintiff’s first claim for relief seeks damages for negligence and is brought against the United States, Sweet Associates, General Dynamics, General Electric, Northway, West Side, Clifton, and General Steel. Plaintiff’s second and third claims seek damages for breach of warranty and strict products liability, respectively, and are brought only against the above-mentioned seven corporate defendants. Damages are sought in the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00).
Consequently, following the usual pattern of negligence cases governed by New York law, the United States has cross-claimed against Sweet Associates, North way, West Side, Clifton, and General Steel and has also commenced a - third-party action against Cyclops. Additionally, General Dynamics and North way have both cross-claimed against all named defendants including the United States; General Electric has cross-claimed against Sweet Associates, Northway, West Side, Clifton, and General Steel; Sweet Associates has cross-claimed against Northway, West Side, Clifton, and General Steel; and General Dynamics and General Electric have both commenced third-party actions against Cyclops. Furthermore, on September 19, 1977, I granted Sweet Associates’ unopposed motion for leave to serve a third-pаrty complaint upon Cyclops. As of this time, General Steel has failed to respond to any of these pleadings.
The grounds for the cross-claims against Sweet Associates and the third-party actions against Cyclops are in part premised upon a contractual indemnification provision.
See United States v. Seckinger,
II
By virtue of the Federal Tort Claims Act, the United States has consented to a partial waiver of sovereign immunity.
See Laird v. Nelms,
It is beyond doubt that in an action brought under the Federal Tort Claims Act the United States may implead a third-party defendant.
United States v. Yellow Cab Co.,
With this ground work in place, this Court must now address ijtself to that “ ‘subtle and complex question with far-reaching implications’ . . . whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom no independent basis of- federal jurisdiction exists” in an action brought under the Federal Tort Claims Act.
Aldinger
v.
Howard, supra,
at 2-3,
Analysis of these issues must begin with the ill-defined concept of ancillary jurisdiction. The doctrine of ancillary jurisdiction, as first enunciated in
Freeman v. Howe,
For instance, ancillary jurisdiction may be used to support the power ,of a federal court to entertain compulsory counterclaims pursuant to Fed.R.Civ.P. 13(a)
[Moore v. New York Cotton Exchange,
It must be remembered, however, that although “joinder of claims,
parties
and remedies is strongly encouraged” under the Federal Rules,
United Mine Workers v. Gibbs,
Thus, it has been held by some courts that a plaintiff may not amend his complaint to include a direct claim against a third-party defendant in the absence of an independent basis for subject-matter jurisdiction.
E. g., Johnson v. Better Materials Corp.,
Yet, under the doctrine of ancillary jurisdiction, additional parties have been joined in an action brought before a fеderal court even though no independent basis of federal jurisdiction had been shown to exist.
E. g., Stewart v. Dunham,
At the same time that the doctrine of ancillary jurisdiction was evolving, the doctrine of pendent jurisdiction was also unfolding in the federal courts. The doctrine of pendent jurisdiction can be traced back to
Osborn v. Bank of United States,
Although there are many similarities between these doctrines of ancillary and pendent jurisdiction, distinctions do exist. To date, however, the Supreme Court has declined to determine “whether there are any ‘principled’ differences” between these two doctrines.
Aldinger v. Howard, supra,
Nevertheless, the doctrine of pendent jurisdiction concerns the federal judicial power to take cognizance of and adjudicate issues within the contours of Art. Ill, § 2 of the Constitution. In the landmark decision of
United Mine Workers v. Gibbs, supra,
[p]endent jurisdiction, in the sense of judicial power, exists whenever . the relationship between . . . [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ . . . [and is] derive[d] from a common nucleus of operative fact . [which] would ordinarily be expected to . [be tried] all in one judicial proceeding. .
United Mine Workers v. Gibbs, supra,
at 725,
Following this pronouncement by the Supreme Court, litigants have sought to extend the
Gibbs
rationale to “pendent parties.” Recently however, the Supreme Court has rejected the concept of pendent-party jurisdiction when asserted against a municipal corporation in an action brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.
Aldinger v. Howard, supra,
*547
In
Aldinger,
the Supreme Court approached the question of federal judicial po.wer over “pendent parties’’-from a twofold prospective. Before pendent-party jurisdiction is sustained in a particular case, the- Supreme Court held that a court must satisfy itself that such power is within the ambit of statutory jurisdictional considerations as well as Art. Ill of the Constitution.
Aldinger
v.
Howard, supra.
The Court went on to hold that since Gongress has by implication negated the existénce of federal jurisdiction over a municipal corporation in a claim brought pursuant 'to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, pendent-party jurisdiction could not be used to assert a state-law claim against that same entity in a federal court. Thus, a narrow reading of the
Aldinger
decision and distillation of its cautious attitude could support the conclusion that since the Court’s reasоning was based on congressional will, the second element of the Court’s twofold analysis, no pronouncement was made concerning the merits of the constitutional issue,
i. e.,
the judicial power given to federal courts by virtue of Art. III. Such an; interpretation would be in line with the general principle that federal constitutional determinations should be avoided where another ground upon which to base a decision is available.
Siler
v.
Louisville & Nashville R.R.,
The
Aldinger
Court, however, stated that in rejecting this kind of pendent-party jurisdiction it was not prepared to make “any sweeping pronouncement upon the existence or
exercise
” of pendent-party jurisdiction.
Aldinger v. Howard, supra,
at 18,
First, the grant of jurisdiction to the federal courts under the Federal Tort Claims Act is exclusive. 28 U.S.C. § 1346(b).
“[OJnly
in a federal [district] court may all of the[se] claims be tried together.”
Aldinger v. Howard, supra,
at 18,
Under § 1346(b) and subject to the Federal Tort Claims Act the federal district courts are given
exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment. .
Furthermore, in such an action, this grant of federal jurisdiction includes the power to adjudicate “any set-off, counterclaim, or other claim or demand whatever on the part of the United States аgainst any plaintiff.” 28 U.S.C. § 1346(c) (emphasis added). Nothing in this language negates the existence of federal judicial power over the pendent state-law claims asserted by plaintiff in this action. To the contrary, the language of these subsections would indicate that Congress intended the ultimate monetary liability of the United States for its torts to be determined in a single action brought in a federal court.
Second, the federal and nonfederal claims asserted in this action share a common nucleus of operative fact. Plaintiff’s claims against the United States and the seven named corporate defendants are completely *548 intertwined. All defendants are bound together by contractual agreements containing indemnity clauses. The basis of plaintiff’s action is the single incident which caused the death of Arthur Maltais. There is but one set of operative facts at the core of plaintiff’s action.
Third, the Supreme Court has noted that “a more serious obstacle to the еxercise of pendent jurisdiction” exists when the party to be brought before the court is not otherwise subject to federal jurisdiction.
Aldinger
v.
Howard, supra,
at 18,
Thus, it can be seen that under the Federal Tort Claims Act pendent-party jurisdiction would not necessarily bring parties before a federal court that would not otherwise be subject to federal jurisdiction. Additionally, in my judgment, it would be permissible fоr plaintiff to amend her complaint against all seven corporate defendants if the United States had brought them into this action by third-party complaint.
See generally Musher Foundation, Inc. v. Alba Trading Co.,
Finally, the congressional intent behind the Federal Tort Claims Act was to make the United States accountable for its torts without undue delay and in a like manner as private persons, not to protect individuals or corporations from suit in federal court.
See, e. g.,
1 L. Jayson, Handling Federal Tort Claims §§ 65, 66 (1977). In my judgment, the federal interest lies in providing a single federal forum for the resolution of all disputes in an action of this kind.
Cf. Shannon
v.
United States,
I make this determination fully awarе of a long line of decisions out of the Court of Appeals, Ninth Circuit, which are in disagreement.
E. g., Ayala v. United States,
In a trilogy of panel decisions authored by Judge Friendly, this Circuit has been liberal in its application of pendent-party jurisdiction.
Almenares
v.
Wyman,
In my judgment, the present case presents a much more compelling case for the recognition of pendent-party jurisdiction than when no federal questions are involved at all.
See Zahn v. International Paper Co.,
Ill
The only question remaining before this Court is whether this federal judicial power should be exercised to adjudicate the non-federal claims asserted by plaintiff in this actiоn. Under the doctrine of pendent jurisdiction as enunciated in
United Mine Workers v. Gibbs, supra,
Some of the myriad factors which a federal court should take into account when called upon to exercise pendent jurisdiction over additional claims or parties include considerations of judicial economy, convenience, and fairness to litigants, the character of the federal and nonfederal clаims presented, the law to be applied, and the possibility of jury confusion. Thus, if the federal claim supporting a pendent claim is insubstantial, a court may refuse to exercise jurisdiction over the nonfederal claim.
E. g., Martin v. Louisiana & Arkansas Ry.,
Furthermore, it is appropriate for a court to examine the complexities of the law to be applied. A federal court is bound to apply state law to a pendent state-law claim.
United Mine Workers v. Gibbs, supra,
at 726,
It is important to note that under the Federal Tort Claims Act it is state law which provides the applicable standards of substantive liability. 28 U.S.C. §§ 1346(b), 2672, 2674;
Richards v. United States,
The claim against the United States, however, must be tried by the Court without a jury. 28 U.S.C. § 2402. At the same time, the Seventh Amendment preserves plaintiff’s right to a trial by jury on her pendent claims.
See, e. g., Ross v. Bernhard,
Although these are important factors to be considered along with the possibility of jury confusion, it is clear that other courts have been able to cope with them. For example, in cases such as this courts have tried the pendеnt claims before a jury, while using the device of an advisory verdict with respect to the claim against the United States.
E. g., Moloney v. United States,
Plaintiff’s complaint, prolix by federal pleading standards, has joined claims based on negligence, breach of warranty, and strict products liability. In addition, plaintiff’s pleadings are not at all clear as to the kind of damages for which plaintiff seeks recovery. At this early stage of litigation, however, I cannot fairly decline to exercise jurisdiction over plaintiff’s pendent claims.
Considerations of judicial economy, convenience, and fairness to all litigants coupled with the sparse record upon which to base this determination justify this Court’s initial retention of plaintiff’s entire action. Of course, this discretionary exercise of pendent jurisdiction is an issue which “remains open throughout the litigation.”
United Mine Workers v. Gibbs, supra,
IV
In sum, having found that this Court has the federal judicial power to entertain plaintiff’s state-law claims against “pendent parties” over whom no independent grounds for the exercise of federal jurisdiction exists, defendant West Side’s motion to dismiss is hereby denied in its entirety.
It is so Ordered.