United States District Court, Northern District of Illinois, E.D
December 20, 1966
JOHNS-MANVILLE SALES CORPORATION, A CORPORATION, AND MARTIN-MARIETTA CORPORATION, A CORPORATION, PLAINTIFFS,
CHICAGO TITLE AND TRUST COMPANY, A CORPORATION, MARSHALL SAVINGS AND LOAN ASSOCIATION, AND J. MICHAEL TIERNEY, DEFENDANTS.
The opinion of the court was delivered by: Campbell, Chief Judge.
MEMORANDUM AND ORDER
Plaintiff Johns-Manville Sales Corporation predicates
jurisdiction on diversity of citizenship. (28 U.S.C.A. § 1332)
Plaintiff Martin-Marietta Corporation makes a similar
jurisdictional claim, however, in specifically alleging damages
Martin-Marietta claims less ($3,298.45) than the required
jurisdictional amount — i.e. "* * * the sum or value of
$10,000, exclusive of interest and costs * * *". (28 U.S.C.A. §
Martin-Marietta, by brief, urge the applicability of the
"ancillary jurisdiction" doctrine. Hurn v. Oursler,
289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. Briefly restated
Martin-Marietta first argues the appropriateness of its
joinder as party plaintiff pursuant to Rule 20 of the Federal
Rules of Civil Procedure. This argument is well founded in
that plaintiff's claims concern common questions of law and
fact "* * * arising out of the same transaction, occurrence,
or series of transactions or occurrences * * *". (Rule 20(a))
From this premise the ancillary jurisdiction conclusion is
This is not a typical ancillary jurisdiction situation. We
do not have a party-plaintiff whose interest is affected by
the court's control of property. Freeman v. Howe, 24 How. 450,
65 U.S. 450, 16 L.Ed. 749. Plaintiff, Martin-Marietta, is not
necessary to permit the court to effectuate any judgment it
may enter herein. Supreme Tribe of Ben Hur v. Cauble,
255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. Nor do we have the same
counterclaim factual situation as was present in Moore v. New
York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed.
A good argument, addressed to efficient judicial
administration, could be made that in situations such as this
where one plaintiff satisfies the jurisdictional requirement
a party otherwise joinable should not be required to institute
an independent suit in the state courts. (See: The Federal
Jurisdictional Amount Requirement and Joinder of Parties Under
the Federal Rules of Civil Procedure, 1952, 27 Ind.L.J. 199).
This is the same argument and rationale which led to and is
the basis of the ancillary
jurisdiction decisions. See: United Mine Workers of America v.
Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; Hurn v.
Oursler, 289 U.S. 238, 53 S.Ct. 586; Clark v. Paul Gray Inc.,
306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.
To a limited extent this argument has been accepted: Orn v.
Universal Automobile Association of Indiana, D.C., 198 F. Supp. 377,
where the court found jurisdiction in the removal
statute, § 1441(c); Raybould v. Mancini-Fattore Co., D.C.,
186 F. Supp. 235, where a single plaintiff suing in a different
capacity aggregated for purposes of satisfying the
jurisdictional amount his claims against a single defendant.
Admittedly these cases do not decide the present issue. They
do, however, lend support to the efficient judicial
The weight of authority appears to be to the contrary, most
courts holding that although joinder of party-plaintiffs might
well be proper under the Rules of Civil Procedure, such a
joinder does not per se satisfy statutory jurisdictional
requirements. Hackner v. Guaranty Trust Co. of New York, 2
Cir., 117 F.2d 95, cert. den. 313 U.S. 559, 61 S.Ct. 835, 85
L.Ed. 1520; Aetna Insurance Co. v. Chicago R.I. and P.R. Co.,
10 Cir., 229 F.2d 584; Jewell v. Grain Dealers Mutual Insurance
Co., 5 Cir., 290 F.2d 11; Diana v. Canada Dry Corp., D.C.,
189 F. Supp. 280; Diepen v. Fernow, D.C., 1 F.R.D. 378.
Joinder, governed by the Civil Rules, must necessarily be
distinguished from statutory jurisdictional requirements. It
does not follow that where joinder is proper ancillary
jurisdiction necessarily attaches. Further, it is well settled
that multipe plaintiffs cannot aggregate damage claims to
satisfy the jurisdictional amount. Thomson v. Gaskill,
315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951.
However, this is not an aggregation situation. One plaintiff
(Johns-Manville Sales Corporation) satisfactorily pleads
federal jurisdiction without reference to its co-plaintiff.
Were the court to dismiss the remaining co-plaintiff's
claim, the co-plaintiff would be relegated to the state court.
Separate trials in separate courts involving common questions
of law and fact arising out of the same transaction and
directed against the same defendant would result. Such a
result runs contrary to the judicial economy, convenience and
fairness to litigants rationale supporting ancillary
jurisdiction decisions. On the other hand, neither the federal
jurisdictional statutes nor the prohibition against
aggregating of amounts claimed is vitiated by permitting a
properly joined co-plaintiff to remain in federal court.
Jurisdiction in such situations does not come from the joinder
Rules, but rather, as is the theory in ancillary jurisdiction
cases, from the fact that a plaintiff is, without the
necessity of joinder, properly before the court. The
jurisdictional requirements having been met by one plaintiff,
those properly joined should be permitted to litigate their
claims in the same action.
The reasons and underlying considerations behind the
jurisdictional amount requirement further indicate a
resolution of this issue in favor of permitting the joined
plaintiff's claim to remain along with the claim of the
plaintiff over whom the court's jurisdiction clearly attaches.
The jurisdictional amount requirement, as most limitations on
federal jurisdiction, was intended to reduce the burden on
federal courts and to avoid further encroachments on state
courts. These purposes are in no way disserved by retaining
the additional plaintiff in this case. This court must try
this case in its entirety, with or without the presence of the
additional plaintiff. Inclusion of the additional plaintiff's
claim could in no way substantially increase the burden of
this court in this case. Secondly, rather than being an
encroachment, the disposition of this claim would be a service
to the generally overburdened state court. The state
could would be relieved from trying the lesser of two
Basically law is common sense. Paraphrasing the late Chief
Justice of the United States Supreme Court, Edward Douglass
White, whenever a rule of law does not make common sense it
should not be followed. It is unthinkable under our present
advanced state of judicial administration to require the same
case be tried separately in two different courts. Duplicitous
expenses and an unjustifiable imposition on an already
overtaxed judicial system run contrary to recent advancements
in legal rules of procedure — most notably our own model
Federal Rules of Civil Procedure.
I find no United States Supreme Court or Seventh Circuit
Court of Appeals case to the contrary. Hughes v. Encyclopedia
Britannica, 199 F.2d 295, the closest Seventh Circuit case on
point, dealt with an aggregation of claims by plaintiffs whose
individual claims were all less than the jurisdiction amount —
a fact situation, I suggest, substantially distinct from the
I realize both the gloss of novelty and lack of precedent in
my ruling. Accepting this, plaintiff Martin-Marietta, may if
it wishes voluntarily dismiss its complaint and refile in the
state court. I shall not force such action however.
Accordingly, defendants' motion to dismiss, for lack of
jurisdiction, the plaintiff Martin-Marietta, is
Defendants also seek to have the amended-complaint dismissed
as being excessively prolix contrary to the "* * * simple,
concise and direct * * *" and "* * * short and plain statement
of the claim * * *" requirements of Rule 8 subsections (e)(1)
and (a)(2), respectively.
I agree with defendants. A review of the amended-complaint
indicates it to be anything but a simple, concise and direct,
short and plain statement of the claim. It devotes 69
paragraphs and 39 pages to pleading a single count. More
importantly, exhibits, many of them group exhibits, designated
by consecutive letters up to and including the letter "X", are
attached to and therefore part of the complaint. Most of these
exhibits contain, for the most part, extraneous or at best
evidentiary material. For the most part these exhibits are
unnecessary to the proper pleading of plaintiffs' claim, and
in almost each instance where the exhibit is necessary
properly to plead the claim its significant contents can and
should be included in substance and effect rather than in
The Appendix of Forms to the Federal Rules of Civil
Procedure are still for the most part ignored. Attorneys,
unable or unwilling to shed the influence of common law
pleading still devote paragraphs to what could well be pleaded
in words. Our notice pleading system, which intended to do
away with formal pleading requirements, the sport of common
law pleading and excessive verbiage, is greatly neglected. The
instant complaint is an excellent example of such abuse. When
directed to the court's attention by motion such as here the
court is obliged to strike excessively verbose and extraneous
pleadings. Buckley et al. v. Altheimer et al., D.C., 2 F.R.D.
285; McCoy et al. v. Providence Journal Co. et al., 1 Cir.,
190 F.2d 760.
Accordingly, plaintiffs' complaint is stricken as being
contrary to both the letter and spirit of Rule 8 subsections
(e)(1) and (a)(2), and the Appendix of Forms to the Federal
Rules of Civil Procedure. Plaintiffs are given 30 days in
which to file a second amended complaint to be drafted in
keeping with the related observations in this Memorandum and
Order. Plaintiffs' failure to file within said 30 days will
result in a dismissal of this case.
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