Thе plaintiffs (“Musson”) appeal the dismissal of federal common law claims of fraud and misrepresentation against Federal Express. Musson also appeals the district court’s ruling that state common law claims against Federal Express, pending in a simultaneous state court proceeding, are preempted by the Airline Deregulation Act of 1978. We affirm the district court’s dismissal of Musson’s federal claims for lack of subject matter jurisdiction, but vacate its ruling concerning Musson’s state law claims and direct that the district court dismiss these claims without prejudice.
I
Musson claims that it purchased “FedEx Economy Two-Day Service” rather than “Standard Overnight Service” because Federal Express represented that the former was cheaper. In fact, says Musson, “Standard Overnight Service” is cheaper, and Musson ended up paying a higher price for slower delivery. Musson filed a complaint in the district, court alleging that these facts *1248 entitle it to damages for “common law fraud” and “negligent misrepresentation.”
Musson did not try to find a basis for federal subject matter jurisdiction in the extensive statutory scheme that regulates the rates and advertising practices of air carriers. In fact, Musson conceded that there is no express or implied right of action against an air carrier for deceptive advertising under the relevant statutes. Musson Brief at 7.
Accord Statland v. American Airlines,
II
We must first decide, reviewing
de novo,
if the dismissal of Musson’s claims under Rule 12(b)(1) was proper. Musson contends that the court should have dismissed its claims, if at all, under 12(b)(6) for failure to state a claim upon which relief can be granted. Musson argues that a federal court always has jurisdiction to decide if a claim exists under federal cоmmon law and, if such a claim exists, a federal court certainly has jurisdiction over it.
See Illinois v. City of Milwaukee,
When a 12(b)(1) motion attacks the face of a complaint, the plaintiffs burden to prove federal question subject matter jurisdiction is not onerous.
RMI Titanium Co. v. Westinghouse Elec. Corp.,
In the present case, Musson’s argument is novel, but not frivolous. No case has ever recognized a federal common law action for fraud against an air carrier. However, the law is hardly static — and a federal court has jurisdiction to hear’ claims on the margins of reasonable possibility. Federal courts have created other common law rules to regulate the relationship between air carriers and their customers, as discussed below. Furthermore, Musson argues that a cause of action is necessary because of the relatively new preemption рrovision of the Airline Deregulation Act of 1978. An accurate understanding of the meaning of this preemption provision requires careful analysis. For these reasons, the dismissal of Mus-son’s federal common law claim for lack of federal question jurisdiction on the face of the complaint was an error. We caution that a litigant cannot achieve federal jurisdiction merely by writing “federal common law” on a complaint — but in this case Musson offers reasoned arguments why a cause of action
*1249
should exist, and these arguments warrant a careful response. As the Supreme Court has held, a non-frivolous claim “confers power to decide that it has no merit, as well as to decide that it has.”
Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co.,
Ill
As it does not make any difference to the outcome of this case, we shall construe the district court’s dismissal of Musson’s federal claims as a dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
2
We review
de novo
a district court’s dismissal under 12(b)(6).
Wright v. MetroHealth Medical Ctr.,
The usual source of authority for federal common law rules governing a suit between private parties is a federal statute. The plaintiffs, however, concede that the relevant statutory framework provides no cause of action. Another source of authority is the Constitution.
E.g., Bivens v. Six Unknown Federal Narcotics Agents,
Sometimes federal courts have created federal common law to govern a suit between private parties without explicit reference to either a statute or the Constitution. In these eases, however, the federal common law rule has been necessary to “protect a uniquely federal interest.”
Texas Indus., Inc. v. Radcliff Materials, Inc.,
Musson contends that we should create a federal common law action here because “[cjarrier-shipper relations, the topic of this case, [are] one such enclave where there is a body of federal common law that controls the respective liabilities of interstate air carriers and shippers.” Musson Brief at 17. In one respect, Musson is correct. There are a variety of federal common law rules that govern certain aspects of the relationship between shippers and air carriers. For example, a federal common law rule allows air carriers to limit by contract their liability for losses,
Hampton v. Federal Express Corp.,
What Musson misses, however, is that it is not the role of federal courts to articulate federal interests-but to enforce the federal interests identified by Congress. When a federal court creates a federal common law rule, it risks violating both of the two fundamental limits on the judicial branch: federalism and the separation of powers. Musson might convince us that it would not offend federalism for us to draft a federal cause of action for deceptive advertising. However, Musson must also convince us that such a holding would be consistent with our limited role in the federal government. Here, Musson fails.
Prior to 1938, this country relied on common law doctrines of contract and tort to regulate the rates and advertising practices of air carriers. "Common law" at this point meant either federal or state commercial common law, depending on the court in which an action was brought. Cf. Erie R.R. Tompkins,
In 1958, Congress passed the Federal Aviation Act (FAA), 72 Stat. 731, 49 U.S.C.App. § 1301 et seq. (1988 ed. and Supp. V). The Act set up a comprehensive federal regulatory scheme governing air carriers. Part of this scheme allowed consumers to bring complaints about deceptive advertising to the Civil Aeronautics Board, which had the power to bring a variety of enforcement actions. Like the Civil Aeronautics Act before it, the FAA had a savings clause that preserved some state common law actions. 49 U.S.C.App. § 1506 ("A remedy under this part is in addition to any other remedies provided by law."). Because of the savings clause, a party could sue an airline for fraud under state common law, despite the ability to petition the Civil Aeronautics Board for an administrative remedy. Nader v. Allegheny Airlines,
In 1978, Congress passed the Airline Deregulation Act (ADA), 92 Stat. 1705. The ADA eliminated the authority of the Civil Aeronautics Board. Subsequent legislation, however, transferred the Board's authority to protect consumers against deceptive advertising practices to the Department of Transportation. CAB Sunset Act of 1984, Pub.L. No. 98-443, 98 Stat. 11706 (1984). See also H.R.Conf.Rep. No. 793, 98th Cong., 2d Sess. (1978), reprinted in 1984 U.S.C.C.A.N. 2857, 2860 (explaining rationale for change). Currently, any person may file a complaint with the Department of Transportation, and the Department of Transportation, in its discretion, can prosecute actions against carriers for "unfair and deceptive practices." 49 U.S.C. § 41712. Although
*1251
DOT cannot award a complaining party "damages," Pinehurst Airlines, Inc. v. Resort Air Servs., Inc.,
Like the FAA before it, the ADA contains a savings clause. 49 U.s.c. § 40120(c) ("A remedy under this part is in addition to any other remedies provided by law."). Unlike the FAA, however, the ADA also contains an express preemption provision, recently reco-dffied at 49 U.S.C. § 41713(b)(4)(A) ("[A] state ... may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier. . "). Interpreting this provision, the Supreme court has held that the ADA preempts state law fraud claims, but not state law contract claims. American Airlines, - U.S. at -,
Of course, the simple lack of precedent during any of these periods is not fatal to Musson's claim. If Congress, by adopting and re-adopting the savings clause, clearly expressed an intent that courts create a federal cause of action for fraud, then we would not fail to create that cause of action simply because a particular set of circumstances has not yet occurred. However, there is not a shred of evidence that Congress, when passing any of the three statutes described above, intended the statutory scheme to exist side-by-side with a federal cause of action for air carrier fraud. In fact, the legislative history of the CAB Sunset Act "establishes that DOT, not private parties, will enforce consumer protection rules against airlines." Statland,
Moreover, the Supreme Court has expressly rejected the possibility that the ADA leaves room for a federal common law cause of action against air carriers, at least in regard to breach of contract claims: "Nor is it plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airlines rates, routes, or services." American Airlines, - U.S. at -,
We do not agree. State law fraud claims are preempted because Congress intended DOT to be the sole legal control on possible advertising fraud by air carriers, and a federal common law fraud claim is inappropriate for thе same reason. See American Airlines, - U.S. at -,
There is an additional problem with what Musson now asks this court to do. In
Cort v. Ash,
IV
On the same day that Musson filed its federal complaint, Musson also filed a complaint alleging violations of state law in the Chancery Court of Shelby County, Tennessee. Federal Express asked the federal district court to declare that these state claims were preempted by federal law. Although none of these claims had been pled in federal court, the district court exercised jurisdiction over them “[i]n order to conservе judicial resources.” Order, November 17, 1994, at 8. The court ordered that “since the plaintiffs’ state law claims relate to rates and services, those claims are preempted pursuant to the Airline Deregulation Act, 49 U.S.C. § 1305(a)(1).” Order at 12.
We hold that the district court erred in resolving Musson’s state law claims. Regardless of “judicial resources” or the pleas of the parties before it, a federal court must proceed with caution in deciding that it has subject matter jurisdiction.
Healy v. Ratta,
Reviewing the record in this case, we find no acceptable basis for subject mattеr juris *1253 diction. The district court’s opinion obliquely mentions two possibilities: that the state claims were “completely preempted,” and that the state claims were impliedly pled and properly pendent. We can accept neither theory.
V
In the middle of its opinion, the district court implies that Musson’s state law claims were “completely preempted” by the ADA’s preemption provision, 49 U.S.C. § 1305. The district court writes: “Inasmuch as § 1305 applies, there is exhibited a congressional intent to treat plaintiffs’ complaint as ‘federal in character’ by its very nature invoking subject matter jurisdiction.” Order at 11. The district court then cites
Metropolitan Life,
If we read the district court’s reference to “complete preemption” doctrine as a holding that the ADA completely preempts Musson’s state law claims and confers jurisdiction on the federal courts to hear them, that holding is erroneous and must be set aside. “Complete preemption” applies only in the
extraordinary
circumstance when Congress intends, not merely to preempt a certain amount of state law, but also to trаnsfer jurisdiction to decide the preemption question from state to federal courts.
See Metropolitan Life,
Examining the text of the ADA and its legislative history, we see no evidence that Congress intended the federal courts to have exclusive subject matter jurisdiction over the preemption defenses to state law claims against air carriers. Quite to the contrary: if the Supreme Court was correct to state that the ADA, unlike ERISA, did not intend to “channel actions into federal court,”
American Airlines,
- U.S. at -,
VI
The district court’s opinion also implies that it had jurisdiction over Musson’s state law claims under the doctrine of supplemental jurisdiction, now partly codified at 28 U.S.C. § 1367. The obvious problem with the exercise of supplemental jurisdiction over Musson’s state law claims is that Musson never pled these claims in the district court. The complaint merely asserts rights “under the common law.” One might read this as encompassing both federal and state law claims were it not for a footnote in the complaint informing the court that:
The Plaintiffs in this action, on this day, have filed a complaint under state law in the Chancery Court of Shelby County Tennessee (Tenth Chancery Division at Memphis) to protect their interests and those of the proposed Class should it be decidеd that this cause of action should be filed under state and not Federal law.
Complaint at 2 n.l. At oral argument, both the defendant and the plaintiff told this court that state law claims were “impliedly” pled (without citing a source in the complaint for such an implication), and that supplemental jurisdiction was proper for this reason. We disagree. Modern pleading rules may be lax, but they still require that a party plead a claim before the court decides it. Furthermore, Fed.R.Civ.P. 8 requires the complaint to contain “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” At a minimum, this requires a plaintiff to identify state claims as such, or to *1254 cite the supplemental jurisdiction rule at 28 U.S.C. § 1367.
Fed.R.Civ.P. 15 allows easy аnd liberal amendment of the complaint to encompass additional claims. We might find appellate correction of the district court’s error unnecessary because the district court could rectify its own mistake on remand by accepting an amendment to the complaint that adds the state law claims.
See Carney v. Resolution Trust Corp.,
However, there is a second problem with the district court's assertion of supplemental jurisdiction over the unpled state law claims. On the particular facts of this case, it was an abuse of discretion to retain the state law claims on a theory of supplemental jurisdiction after dismissal of the federal claims upon which supplemental jurisdiction depended.
United Mine Workers v. Gibbs,
A district court has broad discretion in deciding whether to exercise supplemental jurisdiction over state law claims.
Transcontinental Leasing, Inc. v. Michigan Nat’l Bank of Detroit,
The word “certainly” was effectively erased by
Rosado v. Wyman,
As a rule of thumb, however, the
Gibbs
dictum remains valid. When all federal claims are dismissed before trial, the balance of considerations usually will point to
*1255
dismissing the state law claims, or remanding them to state court if the action was removed. Carn
egie-Mellon,
A close look at precedent indicates that not all “pretrial dismissals” affect supplemental claims in the same manner. The vast majority of pretrial dismissals, such as a dismissal on a motion for summary judgment, do not affect the trial court’s ability to resolve supplemental claims. But there are two types of pretrial dismissals that appellate courts have scrutinized closеly. The first is a dismissal under Rule 12(b)(1). If the court dismisses plaintiffs federal claims pursuant to Rule 12(b)(1), then supplemental jurisdiction can
never
exist. A Rule 12(b)(1) dismissal postulates that there never was a valid federal claim. Exercise of jurisdiction on a theory of supplemental jurisdiction would therefore violate Article III of the Constitution, because the original federal claim would not have “substance sufficient to confer subject matter jurisdiction on the court.”
Gibbs,
The second type of рroblematic pretrial dismissal is a dismissal under Rule 12(b)(6) for failure to state a claim. After a 12(b)(6) dismissal, there is a strong presumption in favor of dismissing supplemental claims.
Taylor,
The presumption that a 12(b)(6) dismissal of the touchstone claims precludes the exercise of supplemental jurisdiction over any remaining claims can be overcome in “unusual circumstances.”
Gaff,
We are convinced that no “unusual circumstanсes” were present in this ease, and that the district court’s decision to resolve the plaintiffs state law claims was an abuse of its discretion under § 1367. First, the resolution of this entire action in the district court *1256 took less than six months — and obviously would have taken less time if the parties and court had addressed only the “federal common law” claims pled. Second, the court held no hearing, but conducted the proceeding purely on written motions. These same written materials could be submitted to a state judge for his decision, with only minimal rewriting. Third, neither party made any allegation that a minor delay, or state court resolution of the issue, would cause them any special problem.
Fourth, the preemption defense to thе state claims and the “federal common law” claims are conceptually distinct, and resolution of one issue does not affect resolution of the other. Fifth, this is not a case where the federal court had exclusive jurisdiction over the federal claim. Musson could have brought its original action in state court, which, frankly, would have been a far more appropriate forum.
Sixth, the preemption issue is not so clear as to render the state law claims “patently frivolous.”
Wright,
Seventh, although we have held above that the district court could not dismiss Mussoris claim as insubstantial under 12(b)(1), Mus-soris claim is close to insubstantial. In fact, the district court seems to have believed it to be, as the court’s dismissal for lack of subject matter jurisdiction suggests. As we noted above, when a federal claim is dismissed as insubstantial, the Constitution absolutely forbids a district court from exercising supplemental jurisdiction over any remaining state claim.
Eighth, a state action was already pending in Shelby County, Tennessee. We find this fact extremely compelling. On the one hand, it is evidence of the ease with which these matters could have been relinquished to the control of the Tennessee state court. On the other hand, the existence of a contemporaneous state action suggests the appropriateness of discretionary judicial abstention to avoid interfering in a state court proceeding. We certainly do not believe that the present case meets the rigorous test for
Colorado River
abstention.
See Arizona v. San Carlos Apache Tribe of Arizona,
Ninth, we must return tо the simple fact that the state law claims were never actually pled. The most that we could do now would be to remand the case so that the parties and court could comply with the minimal requirements of federal notice pleading. Once the state claims are properly before it, the district court would have to make another decision about whether supplemental jurisdiction was proper, weighing the relative advantage of resolution in federal and state court. At this point, the federal claims would have been dismissed for several months. Furthermore, the district court’s initial resolution of the preemption issue, decided before the Court’s decision in American Airlines and without any idea as to the particular state law on which Musson based its claim, would likely have to be re-examined in light of new information. Given the ability of a state court judge to read a record, we cannot imagine that the district court could conclude that its own familiarity with this complicated, but not *1257 that complicated, case constitutes “unusual circumstances” and justifies federal resolution of Musson’s state law claims.
The only factor that suggests “unusual circumstances” in this case is the fact that the preemption issue is a question of federal law. The Court in
Gibbs
held that this was a relevant consideration, even while recognizing that a preemption defense does not create general federal jurisdiction.
VII
For the reasons described above, the district court’s dismissal of Musson’s federal claims is AFFIRMED, and the district court’s resolution of Musson’s state law claims is VACATED. The ease is REMANDED and the district court instructed to dismiss Musson’s state claims, to the extent that they are before the court, without prejudice.
Notes
. We choose to equate "substantial” with non-frivolous because other definitions of substantial are circular.
E.g. Hagans v. Lavine,
. Of course, a 12(b)(6) dismissal, as opposed to a dismissal under 12(b)(1), may constitute a resolution of Musson's claims on the merits. The possible preclusive effect of this change in nomenclature does not worry us because that preclusive effect could obviously not extend to the statе law claims that we, later in this opinion, order dismissed on jurisdictional grounds without prejudice.
. However, the federal interest would have to be rather extraordinary to warrant the creation of an entire cause of action. All the cases cited by *1250 Musson concern the use of federal law in a state law cause of action. An occasional rule-usually a defense-is far less intrusive as a matter of federalism than the creation of a cause of action. The latter both changes the substantive law applicable between private citizens and provides a basis for federal question jurisdiction in federal courts.
. The record does not indicate if the state court proceedings have been stayed pending resolution of Mussoris federal case.