The Split Over 28 U.S.C. § 1367 (The "Plain Meaning Rule" — Constructive or Reductive?)

By John Pillette
Assistant Editor, Class Action Reports*
© 2001 Class Action Reports. All Rights Reserved.

1. INTRODUCTION

As noted ad nausem by class action commentators,¹ the past decade has seen a migration of class action litigation from federal to state court—and along with the increase in state court class action filings has come the automatic removal petition. These petitions all employ a two-step argument: one of the named plaintiffs has a claim which exceeds 28 U.S.C. § 1332’s $75,000 amount-in-controversy threshold,² and this jurisdictional toehold is enough—by virtue of the supplemental jurisdiction statute, 28 U.S.C. § 1367—for original federal jurisdiction over the entire class.³

It is the second part of this argument that is currently in dispute—specifically, whether or not § 1367 eliminated the complete diversity rule of Zahn v. International Paper Co. ⁴   According to Zahn, original federal jurisdiction⁵ over a state law class action requires that every class member—and not simply the named plaintiffs—meet the amount in controversy threshold.   The interpretation of § 1367 urged by a removal petition—and that adopted by four of the seven circuits to consider the question—is that Zahn has been displaced by a new scheme wherein only one named plaintiff need satisfy the amount in controversy requirement and the rest of the class may piggyback on the named plaintiff’s jurisdiction.

Why should anyone care?   The anti-Zahn interpretation of § 1367 makes it significantly easier for a defendant to get into federal court; and defendants seem to view federal judges as friendlier than their state counterparts (with plaintiffs subscribing to the inverse view).⁶   Defendants want to be in federal court and plaintiffs don’t, whether or not the belief in this sort of judicial dualism is well founded.   The circuits have been split on the § 1367 issue since 1998, and this past summer two new decisions were issued within days of each other.   The current score is 4-3 with the anti-Zahn team ahead.⁷

This article asserts that the anti-Zahn interpretation of § 1367 is wrong; that the legislative history does not support this view; that the statute itself is ambiguous and confusing; and that—all things considered—the proper course is to adopt that interpretation of the statute which harmonizes with Zahn.   Further, this article asserts that those courts which have found the statute to be clear and unambiguous—i.e., those courts utilizing the quaint “plain meaning” approach to statutory construction—are engaging in an outmoded and misapplied obscurantism.   To praise § 1367 as “plain,” “clear,” or “unambiguous” is to be either obtuse or disingenuous, as even a cursory examination of it shows it to be anything but,⁸ and to employ the plain meaning rule as a sort of trump card, as these courts have, is not interpreting a statute but refusing to do so.

1.1 Snyder and Zahn

The diversity jurisdiction of the federal courts is limited to cases or controversies “where the matter in controversy exceeds the sum or value of $75,000.”⁹   Where there is one plaintiff, this question of whether or not this amount has been reached will (usually) be a straightforward one.   However, a difficulty arises in the multiple plaintiff situation: is the amount in controversy the sum of the value of all the plaintiffs’ claims—i.e., are they aggregable?

The short answer is no. ¹⁰   As outlined by the Court in Snyder v. Harris,¹¹ the rule against aggregation has been in place at least since Oliver v. Alexander in 1832.   It applies with equal force to actions brought under the old (pre-1966) and new (post-1966) Fed. R. Civ. P. 23 (Clark v. Paul Gray, Inc., and Snyder respectively).¹²   In Zahn the Court adressed a related question: whether in a class action a distinction could be made between the named plaintiffs and the absent class members for purposes of the amount in controversy requirement—that is, if every named plaintiff met the amount-in-controversy requirement, could a federal court exercise jurisdiction even though not every class member could also reach the threshold?   Zahn held that this position was incompatible with the rule against aggregation—for federal jurisdiction to attach, each plaintiff in a class action must meet the amount-in-controversy requirement.

In so holding, the Court in Zahn emphasized not just that this result was dictated by the rule against aggregation, but also that the rule against aggregation was itself an integral part of the construction of § 1332:

Neither are we inclined to overrule Snyder v. Harris nor to change the Court’s long standing construction of the “matter in controversy” requirement of § 1332.   The Court declined a like invitation in Snyder v. Harris after surveying all relevant considerations and concluding that to do so would undermine the purpose and intent of Congress in providing that plaintiffs in diversity cases must present claims in excess of the specified jurisdictional amount.   At this time, we have no good reason to disagree with Snyder v. Harris or with the historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years.¹³

Despite this, in the current controversy four out of seven circuit courts to consider the issue have decided that the addition of § 1367 to the statute books in 1990 did in fact eliminate Zahn along with its “historic construction” of the matter in controversy, the fact that it had been undisturbed lo these many years notwithstanding.

1.2   The Abbott and Leonhardt Positions

In chronological order, the seven appellate § 1367 decisions are: (1) In re Abbott Laboratories¹⁴ (holding that § 1367 unambiguously displaced Zahn); (2) Stromberg Metal Works, Inc. v. Press Mech., Inc.¹⁵ (same); (3) Leonhardt v. Western Sugar Co.¹⁶ (holding that § 1367 was inherently and extrinsically ambiguous and did not displace Zahn); (4) Meritcare Inc. v. St. Paul Mercury Insurance Co.¹⁷ (holding that § 1367 was ambiguous and did not displace Zahn); (5) Trimble v. Asarco, Inc.¹⁸ (adopting Leonhardt); (6) Gibson v. Chrysler Corp.¹⁹ (holding that § 1367 unambiguously displaced Zahn); and (7) Rosmer v. Pfizer, Inc.²⁰ (same).

Central to the decisions holding that § 1367 did in fact displace Zahn (what this article will term the “Abbott view”) is a finding that the statute was “unambiguous,” and that therefore any examination of extrinsic evidence is improper.   In contrast, the Leonhardt view finds the statute to be ambiguous;²¹ and prompting review of its legislative history; and once this is examined, it is clear that Zahn was meant to survive § 1367, not be eliminated by it.   A clear examination of all seven opinions and the statute itself convinces us that the Leonhardt view is the better one.²² Section 1367 reads in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332 … .

The Abbott and Leonhardt views diverge from the outset, on the very first issue presented—whether or not § 1367 is “ambiguous.”

2.   ANALYSIS

2.1   § 1367 Is Glaringly Ambiguous

2.1.1   A Circuit Split Is Inherently Ambiguous

Both the Abbott and Leonhardt views note²³ that there is legislative history indicating that § 1367 was not intended to displace Zahn (this article will skip any sort of comprehensive review of § 1367’s history, apart from noting that there is a general consensus that the history is more supportive of Leonhardt’s view than Abbott’s).²⁴   Nevertheless, the Abbott view—even while acknowledging the existence of evidence militating against its position—refuses to examine it.   Instead, it finds that since the statute “plainly” says what they believe it to say²⁵ there is no reason to resort to extrinsic materials.   The Abbott view is therefore entirely dependent on its view of the statute as “unambiguous.”   Given the fact that there has been widespread confusion as to what § 1367 means from its inception, this sort of statutory analysis is hopelessly inadequate.

While Leonhardt argues that § 1367 can, in fact, be “unambiguously”²⁶ read as not altering the law of original jurisdiction, it also makes the more reasonable claim that, given the difference of opinion in the district courts, § 1367 is ambiguous per se.   Why this aporia? The Abbott and Leonhardt views employ, respectively, definitions of ambiguity that are subjective and objective—is ambiguity a condition that is either present or not (like pregnancy), or is it rather something you can only know when you see it (like pornography)?

The dictionary, unsurprisingly, defines the term objectively: “[a]mbiguity exists if reasonable persons can find different meanings in a statute, document, etc.”²⁷   If we grant—if only for the present—that federal district courts may be considered “reasonable persons,” § 1367 would necessarily have to be ambiguous, given the differing interpretations among the district courts in the seven circuits to reach the issue.   The law on this point (in the 10th Circuit at least) is consistent with this view: “a ‘split in the circuits, is, in itself, evidence of the ambiguity’ of a statutory phrase.”²⁸ In contrast, the Abbott view holds that even though the federal courts—at both the district and appellate level—have come to differing conclusions as to what § 1367 means, this is not indicative of any per se ambiguity, but at most merely evidence thereof!   In this, the Abbott view is making the dictionary’s objective definition subjective: in this view “ambiguity [may] exist if reasonable persons can find different meanings in a statute.”

In Abbott itself the Fifth Circuit simply stated that its district courts were split, and thereafter refused to examine (or simply overlooked) the necessary implications of this.   In Rosmer, the Fourth Circuit blithely determined that the decisions of sister circuits were irrelevant (without, of course, attempting the impossible task of trying to square this notion of ambiguity interpretation with the dictionary’s).²⁹ In Gibson the Ninth Circuit skirted the issue by finding—mistakenly—that the Tenth Circuit in Leonhardt (and the Eighth Circuit in Trimble) found § 1367’s meaning to be “plain.”³⁰   At any rate, the Ninth Circuit’s conclusion in Gibson that the statute is clear and unambiguous is undermined by the fact that in order to so find such clarity and plain meaning it first had to engage in an exhaustive seven page exegesis of both the statute and the Leonhardt opinion.³¹ In sum, the idea that § 1367 is unambiguous is manifestly absurd.

2.1.2   § 1367 Is Ambiguously Constructed

Apart from questions raised by the inherent ambiguity of a circuit split, the Abbott view completely ignores a glaring intrinsic ambiguity in the statute.   Supplemental jurisdiction, as its name implies, is applicable only where there is original jurisdiction.   Therefore—as noted by the Tenth Circuit in Leonhardt and Judge Motz’s dissenting opinion in Rosmer—any interpretation of § 1367 will necessarily require as a first step an inquiry into what is meant by the phrase “original jurisdiction.”   In this context, the relevant inquiry becomes, did the statute “assume that the existing rules of original jurisdiction will continue to apply,”³² or did the statute itself modify the rules of original jurisdiction?

§ 1367 employs the term “original jurisdiction” throughout, while leaving it undefined.   Subsection (a) states that “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction”; so that clearly original jurisdiction must be established at the outset.   The Abbott Labs case had been filed in state court and thereafter removed to federal court. Prior to the advent of § 1367, there would be no federal court “original jurisdiction” over the case because not every one of its plaintiff class members met the amount-in-controversy requirement. Thus, properly defining the term “original jurisdiction” necessarily involves an examination of amount-in-controversy doctrine (and this doctrine is of course embodied in Zahn).

There are two possible outcomes to such an inquiry: (1) if one assumes that the amount-in-controversy rules—viz., Zahn—existing prior to the statute’s enactment still applied after its enactment, then there is no original jurisdiction, and therefore no supplemental jurisdiction; (2) on the other hand, if the Abbott view is correct,   § 1367 not only defined the contours of   supplemental jurisdiction—it also redefined the meaning of original jurisdiction (by changing the jurisdictional requirements of § 1332).³³

This is taking one step too far, into the realm of logical fallacy. If Abbott is correct, the scheme of § 1367 begs the question—the Abbott view has it that there was original jurisdiction in Abbott Labs because of § 1367, and § 1367 applied to the facts of the case because there was original jurisdiction.   The Leonhardt view is the only logically consistent approach.³⁴ Section 1367 cannot simultaneously use § 1332 as a referent and modify the term.   If § 1367 is to make any sense at all, § 1332—i.e., Zahn—needs to remain in place.   Further, the question of the relative merits of the Abbott and Leonhardt views aside, the inherent ambiguity of this construction cannot be ignored.   To hold that § 1367 is “clear” and/or “unambiguous” suggests that these courts either simply did not read the statute carefully or are ignorant of the underlying caselaw.³⁵

The Abbott view creates a tension between § 1332 and § 1367. If in fact Congress had meant § 1367 to both overthrow Zahn while at the same time modifying the long-standing matter in controversy and original jurisdiction doctrines, why then did it include language which is dependent upon those doctrines (“any civil action of which the district courts have original jurisdiction founded solely on section 1332”) and which elsewhere in the statute specifically preserves them (no supplemental jurisdiction where it “would be inconsistent with the jurisdictional requirements of section 1332”)?   Congress could just as easily have specified that § 1367 was intended to accomplish both goals, or defined what “original jurisdiction” means, or both.   The Leonhardt view harmonizes § 1367 with existing caselaw.   Since both the Abbott and Leonhardt interpretations are at least possible (even if one is more plausible), it is the lack of tension in the latter that makes it the better one.

There is a further ambiguity presented by the list of exclusions in subsection (b).   Abbott makes much of the fact that while this specifically excludes parties joined under Rules 14, 19, 20, or 24 from its grant of supplemental jurisdiction, there is no like mention of Rule 23:   the “first section vests federal courts with the power to hear supplemental claims generally, subject to limited exceptions set forth in the statute’s second section.   Class actions are not among the enumerated exceptions.” Abbott at 528.   Inclusio unius est exclusio alterius—but this doctrine applies only within the confines of a particular category.   Reading § 1367(b) as a whole suggests that Rules 14, 19, 20, and 24 are enumerated (and Rule 23 is not) because the former are the party joinder rules, while the latter deals with class members, a different sort of thing.   Lumping Rule 23 together with 14, 19, 20, and 24 would obscure this distinction.

Read as a whole, § 1367(b) evidences an effort to prevent a wholesale enlargement of federal jurisdiction—hence the enumeration of the party joinder rules.   The Abbott view assumes that since this list doesn’t contain Rule 23, Rule 23 jurisdiction was therefore meant to be enlarged.   This does makes less than perfect sense: why would Congress urge that the jurisdictional requirements of § 1332 be preserved, and carefully guard against jurisdictional enlargement through joinder, just so that Rule 23 jurisdiction could explode? The Abbott opinion’s analysis on this point is superficial and misleading—and, as outlined supra, the relevant inquiry is not why Rule 23 was left off of § 1367’s list of exclusions, but whether the statute is applicable in the first place.

Likewise, the Rosmer opinion (condescendingly) asserts that “[i]t seems appropriate in conclusion to repair to the simplicity of the statute” while employing a rhetorical shift:

Louise Rosmer is of diverse citizenship and her claim exceeds the amount in controversy requirement of 28 U.S.C. § 1332. Consequently, federal courts have original jurisdiction over it. Likewise, due to § 1367, federal courts have supplemental jurisdiction over the claims of all class members whose claims do not exceed $75,000. Section 1367(a) permits supplemental jurisdiction over the “other” related “claims,” and § 1367(b) does not except class actions from § 1367(a)’s application.

Rosmer at 122.

In fact, this “simplicity” is utterly contrived.   The statute reads “in any civil action of which the district courts have original jurisdiction” (emphasis added)—that is, the existence of original federal jurisdiction is determined with respect to the action as a whole, not with respect to the action’s constituent claims.   If Rosmer had sued on her claim alone there would have been original federal jurisdiction, since diversity and a sufficient amount in controversy were present.   But since the suit was brought as a class action, there was no original federal jurisdiction because of Zahn.

The Fourth Circuit’s gloss ignores this distinction.   In effect, it rewrites the statute by inserting a qualifying term—“in any civil action [containing a claim over which] the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction …”—and leaping from original federal jurisdiction over a claim to original federal jurisdiction over an entire class action.

2.2   The Plain Meaning Rule Misapplied

The so-called “plain meaning rule” of statutory construction is typically misunderstood as providing that where the meaning of a statute is “plain on its face” further analysis utilizing extrinsic evidence such as legislative history is precluded.   This interpretation of the rule—which is really the “four corners rule” contract doctrine imported into the statutory context and misapplied there—is wrong: “the plain meaning rule is ‘rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.’ ”   Watt v. Alaska, 451 U.S. 259, 266 (1981) (quoting Boston Sand Co. v. United States, 278 U.S. 41, 48 (1928); emphasis added).   Further, the notion that ambiguity can be determined simply by examining a document has fallen into grave disfavor:

The “plain meaning” approach to statutory construction simply begs the question. In every case where the scope or terms of a statutory provision are subject to reasonable dispute, the issue is which meaning is “plain.” To say, without elaboration, that one possible interpretation is “plain” and that another possible interpretation is “not plain,” obscures rather than clarifies the decisionmaking process. A court which employs the “plain meaning” approach and interprets the terms and scope of a statute literally, without inquiring whether that literal meaning is consistent with Congress’ purpose in enacting the statute, fails to respect adequately Congress’ lawmaking power. For these reasons, the Supreme Court repudiated the “plain meaning” approach nearly forty years ago: “Often (the words of a statute) are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ”³⁶

The Abbott view hews to this repudiated interpretation of the plain meaning rule.   Rather than acknowledging that the existence of a long-standing dispute over the proper interpretation of § 1367 means that there can be no absolutely plain meaning, it instead adopts a humpty-dumpty-like solipsim under which   “ambiguity” means what this view holds it to be, no more or less.³⁷

2.3   The Explicit Intent Rule

That the anti-Zahn position is the incorrect one is further evidenced by the failure of the proponents of that view to consider the “explicit intent” rule of statutory construction: “The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.”³⁸ The rule has two obvious corrolaries: where, as in the instant situation, a particular interpretation of a statute would change a well-recognized doctrine, and where such a change is not specifically addressed, then not only is (i) the doctrine-changing interpretation of the statute disfavored, but (ii) the statute’s failure to address the question makes the statute inherently ambiguous.  

Midlantic concerned the effect of a bankruptcy statute, 11 U.S.C. § 554, on the preexisting restrictions on bankruptcy trustee abandonment power.   The question was whether § 554 codified the doctrines in place at the time of its enactment, or if it effected a much more sweeping revision of the law.   Since the statute itself did not plainly address the issue, the Court examined the legislative history and determined that such a sweeping revision was not intended.   The parallel with the instant case is an obvious one: just as in Midlantic, here there are two plausible interpretations of a statute, one of which would effect a sweeping change in the law and one of which would leave undisturbed a long-standing doctrine; and just as in Midlantic, there is no explicit articulation of an intent to change the doctrine.   In fact, the instant case goes one better—the legislative history in Midlantic provided “little guidance”³⁹ on the issue, while § 1367’s history makes abundantly clear Congress’s intent to retain Zahn!   Despite all this, the Rosmer court treated the concept—the harmonization of new statutory law with existing doctrines—behind the explicit intent rule with contempt, asserting that any inquiry is forestalled by the plain meaning rule.

2.4   The Straw Man Arguments

In rejecting the Leonhardt opinion, the Rosmer court built for itself a number of straw men, with which it mischaracterized the Leonhardt view.   The Leonhardt opinion used two separate arguments.   First, it noted that since the term “original jurisdiction” in the context of a diversity class action necessarily includes Snyder’s construction of § 1332, § 1367 could be understood as expressly excepting claims which fail to meet the Snyder test⁴⁰ and therefore § 1367 “can be read” to unambiguously embrace the Zahn rule (the “unambiguous” argument).   However, the opinion acknowledged that this unambiguous argument was largely rhetorical:

However, we recognize that it is difficult to argue persuasively that the statute is truly unambiguous when two circuit courts of appeal have reached the opposite conclusion from us, when a majority of district courts are in agreement with us (although not all for the same reasons) and when commentators are divided. We therefore assume that ambiguity in the statute permits us to examine legislative history.⁴¹

The Leonhardt opinion thus provides alternate supporting arguments: (i) that § 1367 unambiguously preserved Zahn, and (ii) that § 1367’s ambiguity required an examination of the legislative history, which revealed an intent to preserve Zahn.   Rosmer, however, describes Leonhardt as “relying” on two main points: “First, it [the Leonhardt court] stated that the term ‘original jurisdiction’ in § 1367(a) incorporated the well‑understood definition of ‘matter in controversy.’ Thus, the statute ‘expressly excepted claims brought under § 1332.’ …   Second, Leonhardt based its holding in part on the fact that ‘original jurisdiction’ meant original jurisdiction over the whole action at the initiation of a complaint.”⁴²

This is a distortion of Leonhardt.   The Leonhardt view is that “original jurisdiction” in the class action context is determined by Zahn, so that—since there cannot be original jurisdiction over a such a class action—the statute doesn’t apply.   Section 1367’s use of the term “original jurisdiction” requires a two-step analysis: since supplemental jurisdiction can only attach where there is original jurisdiction, a determination of original jurisdiction is a priority: “ ‘the grant of supplemental jurisdiction will come into play only after the plaintiff has submitted claims in a well-pleaded complaint that properly invoke such original jurisdiction.’ ”⁴³ The Rosmer court distorted this analytic scheme by characterizing this as holding that “ ‘original jurisdiction’ meant original jurisdiction over the whole action at the initiation of a complaint.”   This is entirely beside the point.   Under Zahn, there is either original jurisdiction over the entire action or there is none at all.

Rosmer holds that the proper construction is to read “civil action” as “civil claim”—so that in a class action only one plaintiff need assert an original federal jurisdiction claim.   However, this ignores the fact that class actions are not (usually) brought individually and later made into multi-party actions.   It also ignores the fact that if that were what was meant, Congress could have easily written, “in any civil action [containing a claim] of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims [in the action and those outside claims] that are so related to claims in the action.”

Rosmer also asserts that Leonhardt’s construction of § 1367 would not work with, e.g., the facts of United Mine Workers of America v. Gibbs ⁴⁴ and Finley v. United States ⁴⁵—that since such plaintiffs “did not have an independent jurisdictional basis for suing the non-diverse party in federal court” they would be outside the ambit of the statute.   But neither Gibbs nor Finley were class actions, and in both cases the fact of original jurisdiction was not in question.⁴⁶ In contrast, in Zahn it was determined that there was never original jurisdiction, not that there was original jurisdiction over one claim but no pendent jurisdiction over the rest. The second stage of the inquiry was not reached.

3.   CONCLUSION

28 U.S.C. § 1367 is simply a poorly written statute, and has been recognized as such from its inception.   As outlined above, it is ambiguous in that: its logical structure begs the question of just what is meant by original (and hence supplementary) jurisdiction; it fails to articulate a specific intent to do away with Zahn; and has been held to mean exactly opposite things by various district and circuit courts.   In sum, it satisfies any rational definition of “ambiguous.”

Calling the statute unambiguous in the face of all this—as have the Fourth, Fifth, Seventh, and Ninth Circuits—is to engage in some very wishful thinking indeed.   If this is in fact really a reasoned determination, then the analysis employed was facile and utterly inadequate.   Not only is the determination that the meaning of the statute is “plain” facile and unsupportable, the employment of the “plain meaning rule” in this context (that is, as a way of forestalling statutory construction)—all the while characterizing this obscurantism as a pious duty!—is pure pecksniffery.   Section 1367 is an inherently ambiguous statute; its legislative history must be examined; and once examined, this history reveals that the statute was not meant to displace Zahn.  

This sledgehammer application of the plain meaning rule is improper, and it fails to consider other, more vital rules of statutory construction.   The Supreme Court has an opportunity to clear the waters muddied by the Abbott, Stromberg, Rosmer and Gibson opinions, by rearticulating two common sense rules concerning statutes such as § 1367, viz.: (i) that where there is a split in the circuits concerning the correct interpretation of a statute, the statute in question must be ambiguous per se; and (ii) that where an ambiguous statute admits of two possible outcomes—one of which would profoundly affect a core judicial principle, and one of which would leave it intact—the second is to be preferred.

4. APPENDIX

Redacted below are the seven § 1367 circuit decisions, in chronological order.

In re Abbott Laboratories, 51 F.3d 524, 527-529 (5th Cir. 1995) (“1367(a) grants district courts supplemental jurisdiction over related claims generally, … § 1367(b) carves exceptions …, [and] [s]ignificantly, class actions are not among the exceptions”; “[s]ome commentators have interpreted this silence to mean that Congress overruled Zahn and granted supplemental jurisdiction over the claims of class members who individually do not demand the necessary amount in controversy”, whereas “[s]ome of § 1367’s drafters disagree”; “[n]o appellate court has ruled on the question”, and “[t]he district courts are split even within this circuit”; history supports pro-Zahn interpretation: “[p]erhaps, by some measure transcending its language, Congress did not intend the Judicial Improvements Act to overrule Zahn”, in that (1) “[t]he House Committee on the Judiciary considered the bill that became § 1367 to be a ‘noncontroversial’ collection of ‘relatively modest proposals,’ not the sort of legislative action that would upset any long‑established precedent like Zahn”, and (2) “[a] disclaimer in the legislative history strives to make this point clear by stating:   ‘[t]he section is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity‑only class actions’ ”; but statute is unambiguous: “[w]e cannot search legislative history for congressional intent unless we find the statute unclear or ambiguous …, [and] [h]ere, it is neither”; in-depth analysis: “[t]he statute’s first section vests federal courts with the power to hear supplemental claims generally, subject to limited exceptions set forth in the statute’s second section …, [and] [c]lass actions are not among the enumerated exceptions”; misapplication of “plain meaning rule”: “[o]mitting the class action from the exception may have been a clerical error … [b]ut the statute is the sole repository of congressional intent where the statute is clear and does not demand an absurd result”; “[a]bolishing the strictures of Zahn is not an absurd result”)

Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928, 930-932 (7th Cir. 1996) (where only one of the two plaintiffs’ claims exceeded jurisdictional amount, “the immediate question is: does the supplemental jurisdiction permit a court to hear a claim by a party whose loss does not meet the jurisdictional minimum?”; “[m]ost district judges, within and without this circuit, have held that the old rule retains vitality …, [b]ut we are reluctant to create a conflict among the circuits on a jurisdictional issue … [and] follow Abbott Laboratories, which has strong support from the statutory text”; symmetry with Brazinski: “1367(a) provides that ‘district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III …’, [and] [t]o emphasize the inclusiveness of ‘all’, the section continues: ‘[s]uch supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.’ ”; “Abbott Laboratories observed that this language is direct and unambiguous”; “[w]e held in Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176 (7th Cir.1993), that § 1367(a) permits the adjudication of a claim by a pendent party that neither arises under federal law nor is supported by diversity of citizenship …, [so] [i]f § 1367(a) allows suit by a pendent plaintiff who meets the jurisdictional amount but not the diversity requirement, it also allows suit by a pendent plaintiff who satisfies the diversity requirement but not the jurisdictional amount”; admission of ambiguity?: “[a]lthough the final sentence of § 1367(a) might have been designed to do nothing more than reverse the outcome of Finley v. United States …, which held that pendent‑party jurisdiction is unavailable when the principal claim arises under federal law, the text is not limited to federal‑question cases, and § 1367(b) shows that the statute governs diversity litigation as well”—i.e., it “begins: ‘[i]n any civil action of which the district courts have original jurisdiction founded solely on section 1332 …, the district courts shall not have supplemental jurisdiction’ in defined circumstances”—such that “although, as Abbott Laboratories discussed, some legislative history suggests that the responsible committees did not expect § 1367 to upset Zahn, the text is not limited in this way … [because] [w]hen text and legislative history disagree, the text controls”; no class action distinction: “Zahn held that every member of a class must satisfy the jurisdictional minimum, and Abbott Laboratories concluded that under § 1367 only the named class representatives need do so”; “[o]ur case, by contrast, has just two plaintiffs …, [b]ut § 1367 does not distinguish class actions from other cases … [and]   neither did Zahn”;— “the point of Zahn was that the class device made no difference”; class members as pendent parties: “Snyder … held that … [Rule] 23 does not alter the rule that multiple persons’ claims cannot be combined to reach the minimum amount in controversy … [t]hen Zahn added that each unnamed class member must satisfy the jurisdictional amount even if the class representatives do so without aggregation”; “[t]he Court started from the proposition, established in Clark, that § 1332 applies to each party independently …, [and] Zahn holds that the unnamed class members remain ‘parties’ for this purpose”; “[i]n modern terms, this means that Rule 23 does not authorize pendent‑party jurisdiction … [and]   Zahn added only that the status of the pendent parties as class members (rather than as named representatives) does not make a difference”; “[s]ection 1367(a) has changed the basic rule by authorizing pendent‑party jurisdiction, and that change affects Clark and Zahn equally”; expansion of federal jurisdiction: “[t]o the extent practical considerations enter in, it is hard to avoid remarking that allowing thousands of small claims into federal court via the class device is a substantially greater expansion of jurisdiction than is allowing a single pendent party”, so that although “[i]t is … easy to imagine wanting to overturn Clark but not Zahn …, it is much harder to imagine wanting to overturn Zahn but not Clark, and we have no reason to believe that Congress harbored such a secret desire”)

In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 607 (7th Cir. 1997) (“court cannot just add up the damages sought by each member of the class … [because] [a]t least one named plaintiff must satisfy the jurisdictional minimum … [i]f he does, the other named plaintiffs and the unnamed class members can, by virtue of the supplemental jurisdiction conferred on the federal district courts by 28 U.S.C. § 1367, piggyback on that plaintiff’s claim”—i.e., “they remain plaintiffs, or unnamed members of the class, as the case may be, even though their own claims are for less than the jurisdictional minimum amount”; “[s]o the Fifth Circuit held in In re Abbott Laboratories …   and we signified our agreement with that holding in Stromberg Metal Works … and repeat it today”)

Leonhardt v. Western Sugar Co., 160 F.3d 631, 637-641 (10th Cir. 1998) (“[w]e … conclude, from both an analysis of the language of § 1367 itself and from its legislative history, that the enactment of § 1367 did not overrule Zahn’s holding that each plaintiff in a diversity‑based class action must meet the jurisdictional amount in controversy under § 1332”; “under the historical interpretation of § 1332, any plaintiff in a diversity class action—whether class representative or putative class member—who does not meet the jurisdictional amount in controversy must be dismissed from the action, and if no plaintiff can meet the amount in controversy, the entire class action must be dismissed”; “[a]t issue here is whether the enactment of 28 U.S.C. § 1367, concerning supplemental jurisdiction, altered the historical aggregation rules under § 1332 for class actions”; per se ambiguity?: “[w]hether § 1367 permits such an exercise of supplemental jurisdiction in a class action is a question of first impression for this court”; “[w]e first examine the statutory language and decide whether Congress has spoken ‘in reasonably plain terms’ ”; “[i]f the statutory language is clear and unambiguous, we normally find that language conclusive …, [but] [i]f the language is ambiguous, … we may ‘resort to legislative history as an aid to interpretation’ ”; “[w]hile … ‘there is “no errorless test” for recognizing ambiguity,’ … a ‘split in the circuits is, in itself, evidence of the ambiguity’ of a statutory phrase”; circuit history: in Abbott Labs., the Fifth Circuit held that § 1367 is neither unclear nor ambiguous; “[w]hile acknowledging that the omission of class actions from § 1367(b)’s exceptions ‘may have been a clerical error,’ the [Abbott] court nonetheless held that ‘the statute is the sole repository of congressional intent where the statute is clear and does not demand an absurd result’ ”; in Stromberg Metal Works, Inc. v. Press Mechanical, Inc., “[t]he Seventh Circuit subsequently followed Abbott, finding that its rationale had ‘strong support from the statutory text’ ”; “[t]hus, two circuits have held that § 1367 overruled Zahn”; “[a]gainst that, the majority of district courts addressing the issue have ruled that § 1367 did not overrule Zahn”; “[c]ommentators and treatises are divided”; § 1332 inquiry is logically prior: “[i]n determining that nothing in the language of § 1367 limited the broad grant of authority conferred by § 1367(a) so as to preserve the historical aggregation rules for class actions under § 1332, the Fifth and Seventh Circuits focused only on the absence of Rule 23 from the exceptions enumerated in § 1367(b)”, but “ [t]hose exceptions … concern only the exercise of supplemental jurisdiction over claims against defendants who are made parties to a diversity action under certain rules and claims by plaintiffs who seek to be added to an on‑going diversity action”; “[w]e are concerned, however, with whether Congress intended to change the rules about when a plaintiff can bring an initial diversity‑based class action under Rule 23, where the court’s original jurisdiction is based upon § 1332 …, [and] [t]he omission of Rule 23 from § 1367(b) has no bearing on that question”; may be unambiguous the other way: “[i]n our view, a literal and textually faithful reading of § 1367(a) leads to the opposite conclusion from that of the Fifth and Seventh Circuits”; “[s]ection 1367(a) specifically addresses ‘any civil action of which the district courts have original jurisdiction’ … [and] then provides for supplemental jurisdiction over transactionally related claims”; “[s]ection 1332 is what confers original jurisdiction over diversity cases and it expressly requires that the ‘matter in controversy exceed the sum or value of $75,000’ …, [and] [w]hile § 1332 does not expressly refer to class actions, the Supreme Court has noted that periodic congressional amendment of the diversity statute to alter only the amount in controversy evidences congressional agreement with the Court’s holding that ‘matter in controversy’ does ‘not encompass the aggregation of separate and distinct claims’ ”; “ [t]hus, Congress in § 1367(a) expressly excepted claims brought under § 1332 and its well‑understood definition of ‘matter in controversy’ ”; moreover, “§ 1367(b) itself supports this interpretation of § 1367(a) … [as it] sets forth various situations in which a court, sitting in diversity, cannot exercise supplemental jurisdiction where the exercise of such jurisdiction ‘would be inconsistent with the jurisdictional requirements of § 1332’ ”; “[t]hat very language evidences a concern for preserving the historical and well‑established rules of diversity …, [and] that § 1367(b) prohibits the addition of claims and parties which would destroy diversity supports our interpretation of § 1367(a) as also fully respecting the rules of diversity in cases invoking the original jurisdiction of the federal courts”; “[t]hus, in our view § 1367(a) and (b) can be read literally, and unambiguously, to require each plaintiff in a class action diversity case to satisfy the Zahn definition of ‘matter in controversy’ and to individually meet the $75,000 requirement”; but is actually ambiguous: “[h]owever, we recognize that it is difficult to argue persuasively that the statute is truly unambiguous when two circuit courts of appeal have reached the opposite conclusion from us, when a majority of district courts are in agreement with us (although not all for the same reasons) and when commentators are divided”; “[w]e therefore assume that ambiguity in the statute permits us to examine legislative history”; legislative history: “[t]he legislative history of § 1367 supports our interpretation of the statute”, in that “[t]he House Report that accompanied the Judicial Improvements Act, the analysis of which was adopted by the Senate Judiciary Committee, … expressly states that § 1367 ‘is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity‑only class actions, as those requirements were interpreted prior to Finley v. United States”; “[t]he House Report then cites Zahn as an example of the pre‑Finley interpretation of the jurisdictional requirements of § 1332 that is not to be disturbed …, [and] also states that the statute provides that ‘[i]n diversity cases, the district courts may exercise supplemental jurisdiction, except when doing so would be inconsistent with the jurisdictional requirements of the diversity statute’ ”; “[t]hus, the legislative history indicates that Congress did not intend to overrule the historical rules prohibiting aggregation of claims, including Zahn’s prohibition of such aggregation in diversity class actions”; “[e]ven the Fifth and Seventh Circuits acknowledge that the legislative history suggests Congress did not intend the result those courts reached … [t]hey simply refused to look at clearly contrary legislative history in the face of what they viewed as clear statutory language”)

Meritcare, Inc. v. St. Paul Mercury Insurance Co., 166 F.3d 214, 218-222 (3d Cir. 1999) (“[o]ur review of the text, legislative history, and origins of Section 1367 leads us to hold that it preserves the prohibition against aggregation outlined in Zahn … and Clark v. Paul Gray, Inc., and thus maintains the traditional rules governing diversity of citizenship and the amount in controversy under 28 U.S.C. § 1332”; 1367(a) “provides that when District Courts have original jurisdiction they ‘shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy …, [and that] [s]uch supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties’ ”; but 1367(b) “narrows supplemental jurisdiction in cases brought solely under the diversity statute, 28 U.S.C. § 1332 … not extend[ing] [it] to ‘claims by plaintiffs against persons made parties under … [Rule] 14 (third‑party practice), Rule 19 (mandatory joinder), Rule 20 (permissive joinder), Rule 24 (intervention), or ‘over claims by persons proposed to be joined as plaintiffs under Rule 19 ..., or seeking to intervene as plaintiffs under Rule 24 ... when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332’ ”; history: “[t]he enactment of Section 1367 was an outgrowth of a recommendation by the Federal Courts Study Committee that ‘Congress should expressly authorize federal courts to assert pendent jurisdiction over parties without an independent federal jurisdictional base’ …, [and] [t]hat suggestion was based to some extent on a summary prepared for a subcommittee noting concern with the holding in Finley v. United States”; Finley examined: “[i]n Finley, the plaintiff filed a wrongful death action in the District Court under the Federal Torts Claims Act, which provides for exclusive federal jurisdiction …, [and] [s]he also sought to join a state‑law claim, arising out of the same factual circumstances”; “[b]ecause the added defendant was not of diverse citizenship, the Supreme Court held that federal jurisdiction over the state claim did not exist …, [t]he result … [being] that separate suits would have to be filed in both state and federal courts”; anti-Zahn language excised: “[t]he subcommittee’s Working Papers proposed that the Federal Courts Study Committee recommend legislation rejecting the holding in Finley, and restoring the previous state of the law … [and] [t]hey also proposed a further broadening of pendent jurisdiction to provide a single forum for the disposition of related cases, and in a footnote disagreed with the holding in Zahn …, [while] somewhat inconsistently, in their primary recommendations urg[ing] substantial limitations on diversity cases”; “[t]he full Federal Courts Study Committee recommended that Congress substantially reduce diversity jurisdiction because of its expense to the federal system and the existence of alternate forums in state courts … [and] [c]onsistent with that policy, the Committee also suggested that Congress enact legislation authorizing pendent jurisdiction that was limited in its scope … [and] did not adopt the subcommittee’s footnote reference to Zahn”; “[t]he Study Committee Report advocated a narrower view of pendent jurisdiction than the Working Papers, and recommended inclusion of claims arising out of the same transaction or occurrence ‘including claims, within federal question jurisdiction, that require the joinder of additional parties, namely, defendants against whom that plaintiff has a closely related state claim’ ”; “[i]t is clear that the Committee focused on Finley—not Zahn—and did not advocate substantially expanding diversity jurisdiction by ‘overruling’ Zahn”; diversity/federal question distinction: “[t]he organization of Section 1367 makes it clear that a distinction is to be made between a narrow approach to diversity cases, as contrasted with a more expansive scope for other sources of jurisdiction, such as federal question litigation …, demonstrat[ing] an intent to prevent erosion of the diversity requirements through such ‘end‑run’ maneuvers as joining plaintiffs under Rules 19 or 20 after a suit is filed, when they could not have been included as parties in the original complaint”, in that “[t]he Report of the House Subcommittee flatly states that Zahn’s validity was not to be affected: ‘[t]he section is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity‑only class actions, as those requirements were interpreted prior to Finley’”; no expansion of federal jurisdiction: “[o]ur reading of the statute, particularly the limitations placed on diversity cases in subsection (b) as contrasted with the broad scope of supplemental jurisdiction granted in other instances of federal jurisdiction in subsection (a), convinces us that Section 1367 was not intended to substantially expand diversity jurisdiction … [and] [s]etting aside the holding in Zahn and Clark would have such an effect”; exclusion list: 1367(b) “notes a number of instances where ‘exercising supplemental jurisdiction ... would be inconsistent with the jurisdictional requirements of section 1332’ ”, and although it “does not list Rule 23, the exercising of supplemental jurisdiction in class actions would certainly be inconsistent with barring it in joinder cases under Rule 19, which is cited in the text”; “[s]imilarly out of keeping is subsection (b)’s prohibition of ‘claims by plaintiffs against persons made parties’ under Rule 20, but its silence as to ‘claims by persons proposed to be joined as plaintiffs’ under that Rule”; statute is ambiguous: “[a]lthough there is much to be said for Leonhardt’s view that the text does not displace Zahn’s ruling, we conclude that there is sufficient ambiguity in the statute to make resort to the legislative history appropriate …, [and] [a]s noted earlier, the House Report leaves no doubt that Congress intended Zahn’s restrictions to remain in effect”; plain meaning rule not applicable: “[e]ven were we to conclude that Section 1367 is unambiguous, as Abbott Laboratories read it, we would nevertheless turn to the legislative history because this is one of those ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ ”)

Trimble v. Asarco, Inc., 232 F.3d 946, 959-962 (8th Cir. 2000) (“[w]e agree with and adopt the reasoning of the Tenth Circuit in Leonhardt … [and] hold that the rule of Zahn remains viable notwithstanding Congress’s enactment of § 1367”; Abbott and Stromberg examined: “[a] few federal courts of appeals have considered § 1367’s impact on Zahn, and they have reached divided conclusions”; “the Supreme Court failed to resolve the circuit split when it affirmed the Fifth Circuit’s decision in Free v. Abbott Labs. by an equally divided court”; here, “plaintiffs urge us to follow the Fifth and Seventh Circuits and hold that, if the district court has original diversity jurisdiction under 28 U.S.C. § 1332 over the state law claims of any member of the plaintiff class (in this case, arguably the class representatives), then the district court has supplemental jurisdiction under … § 1367 over all remaining members of the plaintiff class, even if they themselves do not have $75,000 claims”; “[i]n reaching such a conclusion, the Fifth and Seventh Circuits focused on the absence of any reference to … [Rule] 23 … in … § 1367(b)’s list of exceptions”; “[u]pon careful de novo consideration, however, we agree with the district court that the Tenth Circuit’s decision in Leonhardt states the better view”, and that Zahn remains viable; therefore, in this case, “the 30,000 plus members of the putative plaintiff class must each satisfy the jurisdictional amount-in-controversy requirement under … § 1332 for the district court to exercise subject matter jurisdiction over their cognizable claims”; “[i]f no [class] member … satisfies the … threshold, the state law claims were properly dismissed in their entirety by the district court”)

Gibson v. Chrysler Corp., 261 F.3d 927, 933-943 (9th Cir. 2001) (W. Fletcher, J, w/ Schroeder & Hall, JJ) (“[f]or the reasons that follow, we agree with the Fifth and Seventh Circuits in Abbott Laboratories and Stromberg Metal Works, and hold that Zahn is overruled by § 1367”; Supplemental Jurisdiction Based on Claims of Individual Named Plaintiffs: 28 U.S.C. § 1367 confers supplemental jurisdiction over the claims of unnamed class members regardless of whether each unnamed class member satisfies amount-in-controversy requirement, so long as named plaintiffs meet the requirement; “Chrysler argued twice before the district court that there was federal subject matter jurisdiction over the entire class action, including the claims of the unnamed class members, because the individual named plaintiffs each had claims worth more than $75,000”; it contends “that 28 U.S.C. § 1367 confers supplemental jurisdiction over the claims of unnamed class members when there is subject matter jurisdiction over the claims of the named plaintiffs”, because “28 U.S.C. § 1367, enacted after Zahn, overrules that case”; the district court disagreed, however, “recogniz[ing] that other circuits had adopted Chrysler’s reasoning, but align[ing] itself with what it described as the ‘chorus of courts’ that had reaffirmed Zahn after the passage of § 1367”; circuits split on § 1367 issue: “[o]f the circuit courts that have reached the issue, the Fifth and the Seventh have agreed with Chrysler …, [t]he Third, Eighth, and the Tenth have agreed with the district court …, [and] [t]he Supreme Court granted certiorari in Abbott Laboratories, but after the recusal of one Justice it affirmed without opinion by an equally divided Court”; plain meaning divined: “[t]he first two courts of appeals to consider the effect of § 1367 on Zahn—the Fifth and Seventh Circuits—had no doubt about the plain meaning of this text, in that “[t]he Fifth Circuit in Abbott Laboratories stated its conclusion succinctly: ‘the statute’s first section vests federal courts with the power to hear supplemental claims generally, subject to limited exceptions set forth in the statute’s second section …, [c]lass actions are not among the enumerated exceptions ..., [and] under § 1367 a district court can exercise supplemental jurisdiction over members of a class, although they did not meet the amount‑in‑controversy requirement, as did the class representatives’ ”; “[t]he Seventh Circuit agreed, writing that the result in Abbott Laboratories ‘has strong support from the statutory text’ ”; “[o]ur own analysis convinces us that Abbott Laboratories properly understood the plain meaning of the text of § 1367, and correctly held that the claims of unnamed class members in a diversity class action need not satisfy the amount‑in‑controversy requirement”; Leonhardt and Trimble disagreed with: “[t]he Tenth and Eighth Circuits have argued that the text of § 1367 has a plain meaning, but they reached the opposite conclusion about what that plain meaning is”; “[i]n Leonhardt, the lead case, the Tenth Circuit made two textual arguments to support its conclusion …, [and] [b]ecause of the importance of the plain meaning of § 1367, we analyze those two arguments in detail”; “original jurisdiction” definitional problem: “Leonhardt’s first argument is that § 1367(a) does not confer supplemental jurisdiction over unnamed class members whose claims do not satisfy the amount‑in‑controversy requirement because the term ‘original jurisdiction’ in subsection (a) has a different meaning in diversity cases than in federal question cases …, not[ing] that under subsection (a) there is only supplemental jurisdiction over claims that are related to claims in a ‘civil action of which the district courts have original jurisdiction’ (emphasis added)”; “Leonhardt then argues that the existence of original jurisdiction under subsection (a) in a diversity case is determined by applying the basic diversity statute, 28 U.S.C. § 1332, to all the claims in the complaint … [so that] [i]f § 1332 confers jurisdiction over all those claims, there is ‘original jurisdiction’ within the meaning of subsection (a) …, [but] if § 1332 confers jurisdiction over only some (but not all) of those claims, there is no ‘original jurisdiction’ …, [and] [i]f there is no ‘original jurisdiction,’ there can be no supplemental jurisdiction either, for there is no jurisdiction to which supplemental jurisdiction can attach”; man-of-straw mischaracterization of Leonhardt: “[f]or Leonhardt to be right, the term ‘original jurisdiction’ in subsection (a) must mean something different in diversity and federal question cases …, [but] we believe that ‘original jurisdiction’ means the same thing in both kinds of cases”; “[f]irst, there is nothing in the text of subsection (a) to suggest, even remotely, that there is such a difference in meaning”; “[s]econd, even though subsection (b) applies only to diversity cases,   ‘original jurisdiction’ in that section is used in the sense concededly applicable to federal question cases in subsection (a) … [t]he meaning of ‘original jurisdiction’ in subsection (b) is apparent from the fact that subsection (b) excludes from supplemental jurisdiction claims made by a plaintiff against a non‑diverse defendant joined under Rule 20 … [since a] plaintiff will ordinarily join all Rule 20 defendants in the complaint rather than waiting to join them by a later or amended pleading … [t]he exclusion of joined claims against non‑diverse defendants from the supplemental jurisdiction granted by subsection (a) indicates that such claims are covered by supplemental jurisdiction, for there would otherwise be no reason for subsection (b) to except them from supplemental jurisdiction”; “for such joined claims to have been covered by supplemental jurisdiction, ‘original jurisdiction’ under subsection (a) must be determined by looking to see if there was subject matter jurisdiction over any one claim in the complaint, rather than over all of the claims in the complaint [since] [i]f ‘original jurisdiction’ under subsection (a) were determined by looking at all the claims in the complaint, there would have been no jurisdiction under § 1332 (and hence no ‘original jurisdiction’) in the first place because there was a lack of complete diversity when all the claims were considered together”, and “[t]he exclusion by subsection (b) of claims by non‑diverse parties joined under Rule 20 from supplemental jurisdiction would thus be superfluous”; “[t]hird, we are reinforced in our reading of the term ‘original jurisdiction’ by a precursor to § 1367 … [a] proposed supplemental jurisdiction statute in a Working Paper of the Federal Court Study Committee … has the same basic analytic structure as the actual statute … [i.e.,] [s]ubsection (a) broadly confers supplemental jurisdiction, and subsection (b) takes away some of that jurisdiction in diversity cases”; “[t]he authors of the Working Paper explicitly stated what the effect of their proposed statute would be: ‘[o]ur proposal would overrule the Supreme Court’s decision in Zahn’ …, [and while] [w]e recognize that the Federal Courts Study Committee disagreed with this policy recommendation … we do not rely on the Working Paper as evidence of what the Study Committee wanted to do … [but] [r]ather … cite it because the text of the proposed statute is strikingly similar to the text of § 1367, and because the Study Committee explicitly stated that the text would overrule Zahn”; putative/certified class distinction: “[f]inally, even if Leonhardt’s reading of ‘original jurisdiction’ in subsection (a) were right, its ultimate holding would still be wrong”, because “[a] class action complaint is filed only by a named plaintiff or plaintiffs …, [a]lthough such an action is often referred to as a class action when it is filed, it is, at the time of filing, only a would‑be class action … [and] does not become a class action until certified by the district court”, and because “[t]he certification decision is not made at the time of filing, but, rather, ‘as soon as practicable after the commencement of an action’ … [and] ‘a civil action is commenced by filing a complaint with the court’ …, if there is complete diversity and a sufficient amount in controversy for the named plaintiff or plaintiffs in the complaint, there is ‘original jurisdiction’ under subsection (a) over the class action, even as Leonhardt would read the term”; “jurisdictional requirements” reference: “Leonhardt’s second argument is that the last phrase of subsection (b) [“when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332”] indicates that § 1367 was not intended to overrule Zahn”, but “Leonhardt does not analyze the precise meaning of the phrase on which it relies”, in that “[t]he entirety of Leonhardt ‘s discussion consists of the following: ‘[t]hat very language evidences a concern for preserving the historical and well‑established rules of diversity … [and] [t]he fact that § 1367(b) prohibits the addition of claims and parties which would destroy diversity supports our interpretation of § 1367(a) as also fully respecting the rules of diversity in cases invoking the original jurisdiction of the federal courts’ ”; “[w]e agree with Leonhardt ‘s general statement that the phrase ‘evidences a concern for preserving the historical and well‑established rules of diversity,’ but we disagree with Leonhardt as to the specific meaning of the phrase”; “[t]he text of § 1367 has the following analytic structure: first, subsection (a) broadly confers supplemental jurisdiction, subject to certain exceptions; second, the first part of subsection (b) sets out exceptions to subsection (a); and third, the last phrase of subsection (b) limits the reach of those exceptions”; “ [w]e believe that the last phrase of subsection (b) means that there is supplemental jurisdiction over a claim otherwise excepted from supplemental jurisdiction by subsection (b) if § 1332, as understood before the passage of § 1367, would have authorized jurisdiction over that claim”; legislative history supports pro-Zahn view: “[f]or the reasons outlined above, we conclude that the text of § 1367 is clear, and that it confers supplemental jurisdiction over the claims of class members in a diversity class action when named plaintiffs have claims with an amount in controversy in excess of $75,000”, and although “[a]fter [so] concluding that the text of the statute is unambiguous, we would normally not examine its legislative history …, this is an unusual case”, in that “[f]our courts have held that the text of § 1367 is clear, but they have split evenly on what that text means”—i.e., “[t]he Fifth and Seventh Circuits, in Abbott Laboratories and Stromberg Metal Works, have held that the text clearly overrules Zahn …, [t]he Tenth and the Eighth Circuits, in Leonhardt and Trimble, have held that the text clearly preserves Zahn …, [and] [a] fifth court, the Third Circuit in Meritcare Inc. v. St. Paul Mercury Ins. Co., has held that the text is ambiguous, and has relied on legislative history to hold that it preserves Zahn”; “[w]e agree with the Third, Eighth and Tenth Circuits to this degree: the legislative history provides a substantial basis to believe that the omission of claims by Rule 23 plaintiffs from subsection (b) of § 1367, and the resulting overruling of Zahn, was an oversight”; “gotcha!”: but “[w]e do not believe that this is enough to overcome the plain meaning of the text”, in that “[l]egislative history can justify a judicial departure from a clear text if Congress makes an obvious clerical error, particularly if the error results in an absurd or difficult‑to‑justify result …, [b]ut that is not the case here”; “[m]oreover, as shown in our discussion of the Working Paper of the Federal Courts Study Committee, some of those involved in drafting § 1367 both knew that the language chosen for § 1367 would overrule Zahn and approved of that result on policy grounds”; “[t]he legislative history therefore does not persuade us that we should refuse to follow what we believe is the clear meaning of the text of § 1367”; “[w]e understand that our holding may be thought to say to Congress, as Judge Pollak put it in Russ, ‘We know what you meant to say, but you didn’t quite say it. So the message from us in the judicial branch to you in the legislative branch is: Gotcha! And better luck next time’ ”; “[w]e sympathize with Judge Pollak’s position, but we do not feel ourselves at liberty to hold that Zahn survives § 1367”, because “[i]f courts could ignore the plain meaning of statutory texts because their legislative histories showed that some (or even many) of those who drafted and voted for the texts did not understand what they were doing, the plain meaning of many statutes, not only § 1367, would be in jeopardy”; Supplemental Jurisdiction Based on Claims of Unnamed Class Members: claims of unnamed class members cannot provide the basis for satisfying the amount-in-controversy requirement; “[t]he preceding section explains our agreement with Chrysler’s argument that there is supplemental jurisdiction over the claims of unnamed class members when the claim of an individual named plaintiff satisfies the amount-in-controversy requirement”; “[w]e now address Chrysler’s additional argument that there is such supplemental jurisdiction when the claim of an unnamed class member satisfies the amount-in-controversy requirement”; “[f]or the reasons that follow, we reject this argument”; “Chrysler argued that an individual plaintiff’s request for rescission should be valued (for purposes of amount in controversy) at the full original price of the vehicles in question, and that as a result, the claim of any class member owning more than three vehicles was likely to exceed $75,000 …, attach[ing] a declaration indicating that, according to its sales records, more than sixty potential class members in California owned more than nine Chrysler vehicles manufactured by the electrocoat process”; “[b]ut even if Chrysler is correct that several unnamed class members have claims for amounts in excess of $75,000, their claims do not provide a basis for diversity jurisdiction”; “subsection (a) of § 1367 provides that a federal district court has supplemental jurisdiction over claims that are related to claims in ‘any civil action of which the district courts have original jurisdiction’ ”; “ ‘[o]riginal jurisdiction’ in subsection (a) refers to jurisdiction established by looking for any claim in the complaint over which there is subject matter jurisdiction …, [b]ut ‘original jurisdiction’ does not refer to jurisdiction over claims not made-or not yet made-in the complaint”; “a class action, when filed, includes only the claims of the named plaintiff or plaintiffs”, and “[t]he claims of unnamed class members are added to the action later, when the action is certified as a class under Rule 23”, so that there “cannot be ‘original jurisdiction’ within the meaning of subsection (a) over the claims of unnamed class members and there is therefore no supplemental jurisdiction either”; “[e]xamining only the claims of named … plaintiffs for purposes of the amount-in-controversy requirement in diversity class actions mirrors the treatment of the complete diversity requirement … [i]n both instances, subject matter jurisdiction depends only on the named plaintiffs”; “[w]e also note that practical considerations support this result”, i.e., that (1) “[i]f the claim of an unnamed class member could support removal of the entire action, a removing defendant might be entitled to discovery not merely from named, but also from unnamed, class members”, (2) “including the claims of unnamed class members is an ‘impractical and uncertain method of determining federal jurisdiction,’ … because those members are free to opt out of the class, and because a denial of class certification would prevent the court from taking jurisdiction over the claims of the unnamed class members”, and (3) “[e]ither of these two events would deprive the district court of jurisdiction over the entire class action, and could occur well into the litigation, after the expenditure of substantial time and effort by the parties and the district court”; “[f]inally, there is no reported decision that supports Chrysler’s argument that the claims of unnamed class members can serve as a basis for diversity jurisdiction”, in that “[e]ven those courts that have held that § 1367 overrules Zahn state that diversity jurisdiction in class actions must be based on a claim of a named plaintiff”, and commentators agree; Attorneys’ Fees as a Basis for Amount in Controversy for Named Plaintiffs: “[w]e agree with Chrysler’s argument that § 1367 provides supplemental jurisdiction over the jurisdictionally insufficient claims of unnamed class members if the named plaintiffs in the action have claims that satisfy the amount-in-controversy requirement”, thus “disagree[ing] with the district court …, [b]ut because we hold that Cal. Civ. Proc. Code § 1021.5 requires any attorneys’ fees awarded in this action to be divided among all members of the class, we do not agree that the named plaintiffs in this case satisfy the amount-in-controversy requirement”, and because “this is the sole argument advanced by Chrysler to show that the claims of the named plaintiffs satisfy the amount-in-controversy requirement, the district court did not err in finding that there was no supplemental jurisdiction under § 1367”)

Rosmer v. Pfizer, Inc., 263 F.3d 110 (4th Cir. 2001) (Wilkinson, J, w/ Hall, J, Motz, J, dissenting) (§ 1367(a) and (b) analyzed: “§ 1367 states that federal courts have supplemental jurisdiction over cases ‘that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy’ … [t]hus, Congress overruled the holding in Finley that pendent parties do not belong in federal court”; “Congress did not authorize supplemental jurisdiction in all cases, however … [as] [s]ection 1367(b) states that when ‘original jurisdiction [is] founded solely on section 1332,’ federal courts shall not have supplemental jurisdiction over ‘claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 …, or seeking to intervene as plaintiffs under Rule 24 …, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332’ ”; “[t]he interpretation of § 1367(a) & (b) lies at the heart of this case”; begging the question: “1367(a) is a general grant of supplemental jurisdiction, stating that ‘in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution’ ”; it “states in straightforward language that a federal court may exercise supplemental jurisdiction if those claims ‘form part of the same case or controversy’ as the claim over which ‘the district courts have original jurisdiction’ ”; here, the “case unequivocally fits within the above language”, in that “[t]he federal district court has ‘original jurisdiction’ under § 1332 because Rosmer and Pfizer are diverse and her claim is above $75,000 … [a]nd since the pendent claims of the absent class members raise similar questions of law and fact to Rosmer’s claim, they are necessarily a ‘part of the same case or controversy’ … [t]herefore, the district court has supplemental jurisdiction over the other claims”; exceptions: “[s]ection 1367(b) ‘imposes specific limits on the use of supplemental jurisdiction in diversity cases’ ”—i.e., “creat[ing] exceptions for ‘claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 …, or over claims by persons proposed to be joined as plaintiffs under Rule 19 …, or seeking to intervene as plaintiffs under Rule 24’ ”, but “nowhere in § 1367(b) does it exempt from the normal rules of supplemental jurisdiction persons made parties under Rule 23”; “[i]n effect, Rosmer would have us rewrite the statute to insert Rule 23 into § 1367(b)’s list of exceptions …, [and] [t]his we cannot do”; Leonhardt criticized: “Rosmer nevertheless argues that the text of § 1367 and Zahn can be harmonized … rel[ying] on Leonhardt v. Western Sugar for the proposition that § 1367 ‘can be read literally, and unambiguously, to require each plaintiff in a class action diversity case to satisfy the Zahn definition of “matter in controversy” and to individually meet the $75,000 requirement’ ”; however, “[w]e disagree with … Leonhardt … on this issue”; “Leonhardt relied on two main points to support its holding … [1] that the term ‘original jurisdiction’ in § 1367(a) incorporated the well‑understood definition of ‘matter in controversy’ [and] [t]hus, the statute ‘expressly excepted claims brought under § 1332’ …, [and] [2] that ‘original jurisdiction’ meant original jurisdiction over the whole action at the initiation of a complaint”; plain meaning of statute: “[t]he plain text of § 1367, however, cuts against both … arguments”; “[f]irst, the text of § 1367 makes clear that ‘original jurisdiction’ in § 1367(a) includes diversity cases … [i]f it were otherwise, as Leonhardt held, there would be absolutely no need for § 1367(b) at all since § 1367(b) only applies to cases brought under 28 U.S.C. § 1332 …, [and] Congress would not have had to exempt some diversity cases in subsection (b) if subsection (a) did not cover diversity claims in the first instance … [i]ndeed, the Leonhardt analysis falters because ‘original jurisdiction’ would mean something different in § 1367(a) than it does in §§ 1332 and 1367(b)”; straw-man argument 1: “[i]t is a ‘basic canon of statutory construction that identical terms within an Act bear the same meaning’ … [h]owever, interpreting § 1367(a)’s use of ‘original jurisdiction’ to cover only federal question claims cannot be reconciled with § 1332’s grant of ‘original jurisdiction’ over diversity claims”; “[s]uch a reading of the statute adds an exception that the language and the structure of the Act cannot bear”, in that “[t]he text does not impose such a hidden barrier for diversity claims”; straw-man argument 2: “[s]econd, Rosmer and Leonhardt maintain that ‘original jurisdiction’ over a ‘civil action’ means that the district court must have original jurisdiction over the entire action at the initiation of the complaint”, but “this reading of the statute would render the phrase ‘over all other claims that are so related to claims in the action within such original jurisdiction’ virtually superfluous … [and] [t]he language itself contemplates that a ‘civil action’ refers to one claim in which original jurisdiction is proper … [t]he other claims that are ‘so related to claims in the action within such original jurisdiction’ are properly in federal court due to § 1367’s grant of supplemental jurisdiction”; added parties: “[t]he phrase ‘other claims’ cannot refer only to claims added after the action has already been filed”; “[t]he Leonhardt court read the ‘other claims’ language narrowly because § 1367(b) speaks to the addition of parties in ‘an on‑going diversity action’ ”, so that “§ 1367(b)’s listing of Rule 14 (addressing third‑party impleaders), Rule 19 (addressing necessary joinder of parties), and Rule 24 (addressing intervention) shows that supplemental jurisdiction would apply only to parties added to an ongoing action”; “[t]he Leonhardt court’s analysis on this point, however, does not persuade us”, because “1367(b) does not merely speak to the addition of parties … [but] also contains an exception for Rule 20, which authorizes permissive joinder of parties …, [a]nd permissive joinder can certainly be utilized at the beginning of the action, not just for an ongoing diversity action”; UAW v. Gibbs and Finley: “[f]urthermore, if supplemental jurisdiction is premised on initially obtaining original jurisdiction over the whole action, the statute would not even apply to cases such as United Mine Workers of America v. Gibbs … and Finley”; “Gibbs allowed federal courts to hear a state law claim that stemmed from the same common nucleus of operative facts as a federal law claim …, [and] [s]ection 1367 codified this holding”; “[a] federal court does not have subject matter jurisdiction over a pendent claim by virtue of original jurisdiction …, [so] [t]he statute recognizes that the pendent claims like those in Gibbs are part of the ‘all other claims,’ not part of the ‘original jurisdiction’ over the ‘civil action’ … [i]t does not matter whether the ‘original jurisdiction’ stems from a federal question or diversity”; “[m]ore damaging to the Leonhardt court is the fact that under its analysis, § 1367 would not apply to cases such as Finley, the very case that prompted the enactment of the statute in the first instance”, in that “[i]f Leonhardt were correct, there would have been no original jurisdiction in Finley because the plaintiff did not have an independent jurisdictional basis for suing the non‑diverse party in federal court”; “Section 1367 is a broad grant of authority for supplemental jurisdiction, subject only to the express limitations in the Act …   it does not contain unspoken limits on the statutory text”; “[t]hus, § 1367 plainly does not require that all class members must independently meet the amount in controversy requirement of § 1332”; legislative history: “Rosmer argues, however, that § 1367’s legislative history makes clear that Congress wanted absent class members to independently satisfy the amount in controversy requirement …, point[ing] to the House Committee Report accompanying § 1367 stating that the statute ‘is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity‑only class actions, as those requirements were interpreted prior to’ Finley, … [and] cit[ing] Zahn as an example of a case not disturbed by the new supplemental jurisdiction statute”; “gotcha!”: “[t]he Supreme Court, however, has consistently stated that when a statute is plain on its face, a court’s inquiry is at an end … [so that a] buried reference in a Committee report does not supersede the plain statutory structure and text”; humpty-dumptyism: “Rosmer maintains, however, that since the statutory text is ambiguous, we may resort to the use of legislative history …, argu[ing] that since three other circuits and four Justices of the Supreme Court (by voting to reverse in Abbott) would hold that § 1367 requires absent class members to independently satisfy the jurisdictional amount, the statute must be ambiguous”; “[w]e respect the views of those who take a different view of § 1367 …, [but] we cannot allow the fact that other circuits have called a statute ambiguous to negate this circuit’s duty to interpret the text of the enactment”, because “[t]o hold otherwise would mean that we would automatically call a statute ambiguous because a sister circuit has interpreted a statute in a contrary manner … [i]n effect, we would be abandoning our own duty to interpret the law”; not absurd: “Rosmer … argues that interpreting § 1367 to include supplemental jurisdiction for class actions would be an absurd result”; both parties “present strong policy arguments as to why § 1367 should or should not include class actions within its scope”—i.e., “Rosmer maintains that federal courts should play a limited role in adjudicating state law claims in diversity actions, and should not err on the side of permitting these types of claims to be swept into the federal system”, whereas “Pfizer, by contrast, points out that for reasons of efficiency and economy, closely related claims should be tried in a single action”; “[i]t is not our place to balance these competing policies”, because “[f]or us to say which party makes a superior policy argument would betray a misunderstanding of the role of courts in our federal system”; “[t]he plain text of § 1367 is not so ‘absurd’ that we should disregard the will of Congress”; “[i]ndeed, having class actions resolved in one forum could potentially improve judicial efficiency and cut the cost of litigation”, “[a]nd, of course, all supplemental claims in a class action brought into federal court will have to satisfy the well-established requirements of Rule 23”; majority’s comments on dissent: “[i]t is difficult to view the dissent as anything more than an all-out assault on federal diversity jurisdiction”; “[t]here are, to be sure, legitimate arguments to be made for and against the exercise of this form of federal jurisdiction …, Article III rather explicitly charges Congress with ‘ordain[ing] and establish[ing]’ the structure of the federal courts, the boundaries of their jurisdiction, and the parameters of § 1332”; “[n]otwithstanding the symmetrical satisfaction of leaving federal law to federal courts and state law to state courts, we cannot read § 1367 to reflect a view of diversity as a disfavored form of federal jurisdiction if its language will not coherently parse that way”, because “[t]o do so in the face of § 1367’s straightforward statutory mandate is to place our judicial cart before the congressional horse”; “[r]educed to its analytical core, the dissent argues that § 1367(a) is essentially a federal question jurisdiction statute … [which] must not be read to affect diversity jurisdiction in any way”; however, “[i]f § 1367 pertains predominantly to federal questions, then there is virtually no authorization for supplemental jurisdiction in diversity cases”, in that “if each and every plaintiff in a diversity case must satisfy § 1332’s requirements of complete ‘diversity’ and ‘matter in controversy,’ as the dissent contends … then there remains no supplemental jurisdiction in a diversity action for district courts to exercise”; “the dissent must try to argue that § 1367(a) is basically a federal question statute in order to avoid the obvious awkwardness of the omission of Rule 23 from § 1367(b)’s list of exceptions …, [but] [w]ith all respect to our good colleague, this view of § 1367(a) as fundamentally a federal question statute reflects little more than wishful judicial thinking”; first, although “Congress could so easily have distinguished between federal question and diversity jurisdiction in conferring supplemental jurisdiction under § 1367(a), … it did not differentiate these two forms of federal jurisdiction in any remotely perceivable fashion”, so that “[t]he terms of the statute are equally applicable to both forms of federal jurisdiction”, in that, e.g., “[s]upplemental claims are ‘related’ to the original claim by virtue of their similarity to the original, not because the supplemental claims independently satisfy all jurisdictional requirements …, [s]upplemental jurisdiction is an efficiency concept …, [a]nd supplemental claims can be as efficiently tied or ‘related’ to an original diversity claim as to an original federal question”—i.e., “[t]o take the statutory language, supplemental claims in a diversity case can ‘form part of the same case or controversy under Article III of the United States Constitution’ even if they lack the requisite jurisdictional amount”; “[s]econd, § 1367, by its very terms, presupposes that § 1367(a) applies to diversity proceedings”; “Section 1367(a) begins with the clause, ‘[e]xcept as provided in subsection[ ] (b)…’, [which] means that the text of § 1367(b) withdraws from § 1367(a) that which would otherwise fall within its purview …, [a]nd the text of § 1367(b) emphatically refers to diversity jurisdiction”; “[i]n other words, but for the withdrawal of supplemental jurisdiction in diversity cases in § 1367(b), a corresponding grant of supplemental diversity jurisdiction would exist in § 1367(a)”; “[t]hus, § 1367(a) must apply to diversity cases”; “[o]therwise there would be no need to list explicit exceptions to the exercise of supplemental diversity jurisdiction in § 1367(b)”; “[i]t is inconceivable that § 1367(b)’s exceptions explicitly relate to § 1332, but that the section from which the exceptions are taken does not”; “[t]he dissent argues that its ‘reading of § 1367(a) does not render § 1367(b)’s various prohibitions on supplemental jurisdiction unnecessary because § 1367(b) bars parties, after the action has commenced, from invoking supplemental jurisdiction over claims they could not have asserted, consistent with diversity jurisdiction requirements, at the outset’ ”; “[b]ut nothing in § 1367(a) indicates that it refers only to claims brought at the beginning of the action …, [n]othing in § 1367(b) indicates that it applies solely to claims brought after the action has commenced …, [a]nd nothing in the text of § 1367 indicates that Congress has adopted the dissent’s proposed temporal distinction”; “[m]uch of the dissent is a pastiche of legislative history and policy prescription, with quotations from the Federal Courts Study Committee thrown in for good measure”, and “[t]hough we see no reason to examine § 1367(a)’s legislative history in view of the straightforward reading to which the statute lends itself, … the circumstances surrounding the creation of the legislative history in fact support our interpretation”, in that “[t]he drafters of § 1367 apparently realized that they failed to except class actions under Rule 23 from § 1367(a)’s grant of supplemental jurisdiction”; “[i]n an attempt to rectify matters, they put together a post-hoc legislative history stating that § 1367(a) was not intended to overrule Zahn”: “ ‘on its face, section 1367 does not appear to forbid supplemental jurisdiction over claims of class members that do not satisfy section 1332’s jurisdictional amount requirement, which would overrule Zahn …, [there is] a disclaimer of intent to accomplish this result in the legislative history …, [i]t would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight’ ”; “[i]n reading the clear language of the statute in the same way that the esteemed drafters of § 1367(a) do, we reach the conclusion they concede to be inescapable”; “[w]e have no idea whether, as the drafters intimate, Congress made a ‘mistake’ or ‘oversight’ here”; “[i]t is not implausible to believe that the legislature desired a single class action, even one in diversity, to be resolved in a single judicial setting”; “[a]dditionally, Congress may have, rightly or wrongly, imputed a bias in state court against certain out-of-state defendants which it sought to counteract by fortifying diversity jurisdiction”; “[t]he point is that Congress can take such steps …, [a]nd in exercising its constitutional prerogatives, Congress is even free to incur the displeasure of the bench”; “ ‘[m]istake’ or not, we know that it is not our job to ‘correct’ what Congress has done”; “[t]he illegitimacy of the judiciary’s usurping such a legislative function, either overtly or through strained statutory construction, is self-evident”), petition for reh’g denied & petition for reh’g en banc denied by an equally divided court, 272 F.3d 243 (4th Cir.   2001)

ENDNOTES

Mr. Pillette, formerly the Assistant Editor of Class Action Reports, is now an Associate with the San Francisco firm of Green Welling. The opinions expressed herein are solely attributable to the author and do not (necessarily) reflect the views, opinions, etc. of Class Action Reports.   Every effort has been made to ensure the accuracy of this article’s case cites and quotations, but readers are urged to double-check before relying on them.   Class Action Reports does not warrant the use of this article as attorney work product.

1. See, inter alia, D. Hensler, et al., Class Action Dilemmas—Pursuing Public Goals for Private Gain (Rand Institute for Civil Justice 2000), passim, and “Point/Counterpoint: The Case For, and Against, Federal Class Action Litigation,” 1 Class Action Litigation Report (BNA) 285 (Aug. 11, 2000).  

2. E.g., by arguing that certain claims should be aggregated.   For more on this, see Pillette, “Aggregation of Claims to Meet 28 U.S.C. § 1332’s Amount-In-Controversy Requirement,” 22 Class Action Rep. 408 (2001).

3. Enacted 1990. It is an open question whether this statute was meant only to codify (under the rubric of “supplemental jurisdiction”) the doctrines of pendent and ancillary jurisdiction, or whether supplemental is something more than the sum of these constituent parts.   This “improvement” was regarded at the time—of course—as a simplification of the existing law.

4. 414 U.S. 291 (1973).

5. Original federal jurisdiction may of course exist either with or without concurrent federal question jurisdiction, and an action asserting only state law claims originally brought in state court and removed to federal court may nonetheless   be under original federal jurisdiction.

6. There is a widely held—but not necessarily accurate—belief that the federal courts are inherently pro-defendant.   See Aggregation of Claims at 408.

7. The pro- and anti- squads are respectively made up of the Third, Eighth, and Tenth Circuits (holding that there is no supplemental jurisdiction where only plaintiff meets the amount-in-controversy requirement), and the Fourth, Fifth, Seventh, and Ninth (holding the opposite).

8. In fact, to characterize the language of the statute as “ambiguous” is to be too charitable, and it is impossible to regard a statute which has been described as “a nightmare of draftsmanship”—as being at all clear. T. Arthur & R. Freer, “Close Enough For Government Work: What Happens When Congress Doesn’t Do Its Job,” 40 Emory L.J. 1007 (1991).   These courts choosing to regard the statute—in the face of its irrefutable, intrinsic, logical inconsistency as a model of clear draftsmanship are engaging in a cheap and superficial sort of reasoning.

9. 28 U.S.C. § 1332.

10. For a long answer, see Aggregation of Claims, supra note 2.

11. 394 U.S. 332, 339 (1969).

12. 306 U.S. 583 (1939) and 394 U.S. 332 (1969).

13. Zahn, 414 U.S. at 301.

14. 51 F.3d 524 (5th Cir. 1995).

15. 77 F.3d 928 (7th Cir. 1996).

16. 160 F.3d 631 (10th Cir. 1998).

17. 166 F.3d 214 (3d Cir. 1999). See also In re LifeUSA Holding, Inc. Insurance Litig., 242 F.3d 136, 142-143 (3d Cir. 2001).

18. 232 F.3d 946 (8th Cir. 2000).

19. 261 F.3d 927 (9th Cir. 2001).

20. 263 F.3d 110 (4th Cir. 2001), petition for reh’g denied & petition for reh’g en banc denied by an equally divided court, 272 F.3d 243 (4th Cir.   2001).

21. Leonhardt argues in the alternative that § 1367 can be understood as unambiguously preserving Zahn—but also acknowledges that this position is largely rhetorical, given the inherently ambiguous situation of a circuit split.   See Leonhardt at 640.

22. What this article terms the Abbott and Leonhardt “views” are not identical to the Abbott and Leonhardt opinions, but rather synthetic representations of the two opposite (or pro- and con-) positions.

23. For the Abbott view’s acknowledgement of conflicting legislative history, see Abbott at 51 F.3d   524, 528; Gibson at 938-940; and Rosmer at 117.

24. In fact, one of the Abbott view opinions admits as much: “We agree with the Third, Eighth and Tenth Circuits to this degree: the legislative history provides a substantial basis to believe that the omission of claims by Rule 23 plaintiffs from subsection (b) of § 1367, and the resulting overruling of Zahn, was an oversight.”   Gibson at 939.

25. This is an interpretative conundrum: if one knows of contrary extrinsic evidence, how can a document (whether it is a contract or statute) be said to be unambiguous?   Likewise, if one knows of a difference of opinion as to the meaning of the document, how in the world can one still consider it to be unambiguous?

26. The dissent in Rosmer makes the same claim—that “§ 1367 unambiguously preserves the rule of Zahn”—but nevertheless goes on to discuss the legislative history, tacitly acknowledging the statute’s ambiguity.   See Rosmer at 122-129.

27. Black’s Law Dictionary 79 (6th ed. 1990).

28. Leonhardt at 638, quoting State Ins. Fund v. Southern Star Foods, Inc. (In re Southern Star Foods, Inc.), 144 F.3d 712, 715 (10th Cir. 1998).

29. The Fourth Circuit was particularly huffy on this point: “We respect the views of those who take a different view of § 1367. At the same time, we cannot allow the fact that other circuits have called a statute ambiguous to negate this circuit’s duty to interpret the text of the enactment. To hold otherwise would mean that we would automatically call a statute ambiguous because a sister circuit has interpreted a statute in a contrary manner. In effect, we would be abandoning our own duty to interpret the law.”   Rosmer at 118 (emphasis added).   In fact, by finding § 1367 unambiguous, the Fourth Circuit is forestalling any searching inquiry into what it means; and since a finding of ambiguity does not of itself dictate the construction that will be finally put on a statute—unless of course the extrinsic evidence will be both completely overwhelming and supportive of only one interpretation—the Fourth Circuit would seem to be abandoning its interpretive duty through refusing to acknowledge the statute’s ambiguity, and not the other way around.   The Supreme Court, for its part, has long since abandonded the fusty “plain meaning rule”: “When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Ass’ns, 310 U.S. 534, 544 (1940).

30. In fact, Leonhardt asserts that the statute is ambiguous—the Gibson court was perhaps thrown by the Tenth Circuit’s use of the trope of understatement: “[W]e recognize that it is difficult to argue persuasively that the statute is truly unambiguous when two circuit courts of appeal have reached the opposite conclusion from us, when a majority of district courts are in agreement with us (although not all for the same reasons) and when commentators are divided. We therefore assume that ambiguity in the statute permits us to examine legislative history.”   See Leonhardt at 640. Likewise, the Eighth Circuit in Trimble expressly adopts Leonhardt’s finding of ambiguity, along with the largely rhetorical assertion that there is a plain meaning to § 1367 opposite to that found by the Fifth Circuit.   Id. at 961-962.

31. Obviously, if there were no ambiguity present, such a discussion would not be taking place.

32. Leonhardt at 640.

33. Judge Motz’s dissenting opinion in Rosmer recognizes that § 1367 logically requires a two-step inquiry: only after it has been determined that the requirements of original jurisdiction—that is, the Zahn complete diversity requirement—have been met do we reach the question of whether or not the particular claims are amenable to supplemental jurisdiction: “1367 clearly grants federal courts supplemental jurisdiction over certain claims that are outside the courts’ original jurisdiction.   Just as clearly, however, § 1367 only grants supplemental jurisdiction where there is first a ‘civil action of which the district courts have original jurisdiction.’ No original jurisdiction exists here. In diversity cases, like the one at hand, federal courts only have original jurisdiction when the ‘matter in controversy exceeds the sum or value of $75,000’ and the controversy is between ‘citizens of different States.’ … Thus, in diversity cases a federal court cannot exercise supplemental jurisdiction over a claim unless it first has original jurisdiction over a civil action ‘between citizens of different states’ in which the ‘matter in controversy’ exceeds $75,000.”   Rosmer at 122.

34. The Abbott view impermissibly presumes an intent on the part of Congress—that it was attempting linguistic economy here in killing two birds with one stone: that is, using one statute to both revamp § 1332 and codify the doctrines of pendent and ancillary jurisdiction.   If in fact this was intended, then this needed to have been explicitly spelled out.

35. Of course, the possibility that they may have willfully ignored precedent is too shocking to consider.

36. Sosa v. United States, 550 F.2d 244, 251 (5th Cir. 1977) (quoting United States v. American Trucking Ass’n, 310 U.S. 534, 543-544 (1940); emphasis added).

37. Rosmer uses the familiar “our hands are tied” ruse, even going so far as to assert that it was the court’s legal duty to avoid thoroughly analyzing §1367! Id. at 118.   Insofar as the statute plainly contains as an inherent ambiguity (over and above its extrinsic ambiguity), this attitude is all the more troubling.

38. Midlantic National Bank v. N.J. Dept. of Environmental Protection, 474 U.S. 494, 501 (1986).

39. Midlantic at 499.

40. The Leonhardt opinion is poorly worded on this point, stating—as pointed out in Rosmer—that “§ 1367(a) expressly excepted claims brought under § 1332,” when what is obviously meant is   “§ 1367(a) expressly excepted [class action] claims brought under § 1332.” Rosmer’s straw man gloss on this point—that Leonhardt stands or falls on whether or not all diversity cases are outside § 1367—is nonsensical.   See Leonhardt at 640; Rosmer at 115-116.

41. Leonhardt at 640 (emphasis added).

42. Rosmer at 115.

43. Leonhardt at 640 (quoting J. Pfander, “Supplemental Jurisdiction and Section 1367: The Case For Sympathetic Textualism,” (1998) (unpublished manuscript, on file with the Univ. of Illinois Law School)).

44. 383 U.S. 715 (1966).

45. 490 U.S. 545 (1989).

46. Gibbs and Finley were both federal question cases.   In Gibbs, a pendent state claim was joined to the federal (Labor Management Act) claim; in Finley, it was determined that the Federal Tort Claims Act did not allow for pendent jurisdiction over state claims, since the statute had originally provided for jurisdiction over “any claim against the United States” for specified torts—and even though this was later revised to provide for jurisdiction over “civil actions on claims against the United States,” this was without effect, since the change was not “clearly expressed.”   Finley at 554.