supra, that a municipality was liable under section 1983 if
the alleged unlawful action implements an official policy,
custom or practice. If, however, plaintiff's theory of
liability is respondeat superior, no section 1983 claim is
stated. Id. at 690-91, 98 S.Ct. at 2035-36.
Although Aldinger's holding was undercut by Monell, its
principle is still good law. Aldinger's surviving lesson is
that "the scope of the jurisdictional grant is inextricably
tied to the scope of the federal claim." United States ex rel.
Hoover v. Franzen, 669 F.2d 433, 443 (7th Cir. 1982). A
plaintiff must sue a "person" for behavior which rises to the
level of a violation of the anchor statute, e.g., section
1983, or bring his lesser claims in state court. See, e.g.,
Eklund v. Hardiman, 526 F. Supp. 941, 943 (N.D.Ill. 1981).
Accord Boudreaux v. Puckett, 611 F.2d 1028, 1031 (5th Cir.
1981); State of North Dakota v. Merchants National Bank &
Trust Co., 634 F.2d 368, 373-74 (8th Cir. 1980).
Technically, a private entity such as Festivals, Inc. may be
held liable under section 1983 if, for example, it is acting in
concert with state officials. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is
axiomatic, however, that the behavior credited to the private
party (or other 1983 plaintiff) must be actionable under
section 1983. Bostedt claims that Festivals, Inc. acted
negligently and failed to exercise ordinary care in the
protection of its patrons by staffing ChicagoFest with
inexperienced and unskilled security guards. Bostedt's theory
is, in effect, one of respondeat superior and banned by
Monell from action under section 1983. An alternative theory
is simply negligent hiring. However, simple negligence
generally is not cognizable under section 1983 either. See
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d
420 (1981); Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689,
61 L.Ed.2d 433 (1979); Procunier v. Navarette, 434 U.S. 555,
98 S.Ct. 855, 55 L.Ed.2d 24 (1978).
It is clear then that under the facts alleged Bostedt could not
have sued Festivals, Inc. under section 1983. Therefore, under
Aldinger, pendent party jurisdiction over Festivals, Inc.
also is not maintainable since Congress has impliedly negated
federal jurisdiction under section 1983 for negligent acts.
Following the Aldinger formula logically, it is difficult to
conceive of many situations in which pendent party jurisdiction
would ever be viable. If a plaintiff could assert jurisdiction
over a defendant on the primary claim, pendent party
jurisdiction would be an unnecessary appendage. Although the
Seventh Circuit has not expressly outlawed assertion of pendent
party jurisdiction,*fn5 it has created an exception to the
apparent ban. In In re Oil Spill by the Amoco Cadiz Off the
Coast of France on March 16, 1978, 699 F.2d 909 (7th Cir.
1983), the court said that while Hixon v. Sherwin-Williams,
Co., 671 F.2d 1005 (7th Cir. 1982), had previously limited
pendent party jurisdiction so as not to destroy diversity
jurisdiction, the case before it involved the admiralty setting
and was thus distinguishable. Id. at 913-14. Both the primary
claim and the claim against the pendent party were within the
admiralty jurisdiction which has been exclusively vested in the
federal courts. If pendent party jurisdiction could not be
asserted, there would be
no appropriate forum to hear the plaintiff's present claim.
Bostedt's claim against Festivals, Inc. is not within any
"exclusive forum" exception. He may sue Festivals, Inc. in
state court on the state claim of negligence. If he chose,
Bostedt could combine all of his claims against all of the
parties in the state action; an action based upon section 1983
can be brought in state court since state and federal courts
have concurrent jurisdiction over constitutional claims. See,
e.g., Spence v. Latting, 512 F.2d 93 (10th Cir.), cert.
denied 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975);
Luker v. Nelson, 341 F. Supp. 111 (N.D.Ill. 1972).
For the foregoing reason, Bostedt cannot assert pendent party
jurisdiction over Festivals, Inc. He must sue that defendant
for negligence in the appropriate state court. However, Bostedt
has stated an appropriate pendent claim against Towns in Count
III; Towns is the subject of independent federal jurisdiction.
To that extent, Count III is not dismissed.
IT IS THEREFORE ORDERED that
1. The motion of defendant Festivals, Inc. to dismiss the
pendent claims brought against it in Count III is granted.
2. Count III is not dismissed to the extent that it states a
pendent claim against defendant Towns.
3. A status hearing will be held on September 30, 1983 at 9:45