was dismissed by the district court, affirmed by the Court of Appeals, and not considered by the Supreme Court. The Third Amended Complaint names Vital-Med as a defendant only in count V alleging a breach of a duty of confidentiality owed to DWHO and Summit. Vital-Med contends this court should dismiss count V of the Third Amended complaint because there is no federal question or diversity jurisdiction, and the court has no basis for exercising supplemental, pendent, or ancillary jurisdiction pursuant to 28 U.S.C. § 1367(a) ("Section 1367"). Plaintiffs contend that this court has supplemental jurisdiction over Vital-Med because federal jurisdiction was never lacking, and therefore the pendent state law claim under which Vital-Med is sued in the Third Amended Complaint is proper pursuant to 28 U.S.C. § 1367. Vital-Med contends that section 1367 does not apply to this case because it was commenced before the statute's effective date.
As the only claim against Vital-Med is stated under state law, it is clear that claim is not supplemental to any federal claim. Cf. 28 U.S.C. § 1367(a).
A. Applicability of 28 U.S.C. § 1367
By its own terms, section 1367 provides for supplemental jurisdiction in the federal courts "[and] shall apply to civil actions commenced on or after the date of the enactment of this Act. [Dec. 1, 1990]." 28 U.S.C. § 1367 note (1990) (emphasis added). Section 1367 provides that once a district court has original jurisdiction over one claim in any civil action, that same court may adjudicate "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." 28 U.S.C. § 1367.
This case was originally filed on October 17, 1986. An amended complaint was filed on February 3, 1989. [Docket number 155]. The Second Amended Complaint was filed on September 25, 1989. [Docket number 236]. Vital-Med was first named as a defendant in the Second Amended Complaint, in 1989. Vital-Med contends that, for section 1367 purposes, the case against them was filed in either 1986 or 1989, and therefore the statute does not apply to them. Thus, Vital-Med maintains that the court should look to pre-1990 law to determine whether it has jurisdiction over it and count V.
The Plaintiffs disagree, relying upon the opinion of the Court of Appeals that "counts five, six, and seven, which allege violations of state law, survive . . . pursuant to the district court's supplemental jurisdiction. See 28 U.S.C. § 1367." NOW v. Scheidler, 25 F.3d 1053 (7th Cir. 1994). Plaintiffs argue that because the Court of Appeals relied on section 1367, at least in part, in reinstating the state law count against Vital-Med, that this court should allow the claim to survive.
This case has been in existence since 1986, and Vital-Med has been a defendant since 1989. No matter which date is the date on which the action was "commenced" for purposes of section 1367, both are before December 1, 1990, which is the date after which, by its own terms, section 1367 "shall apply to civil actions commenced [thereafter]." Therefore, section 1367 does not apply, and the court must look to the law of supplemental jurisdiction as it existed before section 1367 was enacted.
B. History of Supplemental Jurisdiction
In contrast to state courts, federal courts are forums of limited jurisdiction, possessing only the power to hear those cases enumerated in Article III of the United States Constitution and only to the extent authorized by Congress. U.S.Const. Art. III § 2; Friedenthal, et al., Civil Procedure 64 (1992). It is fundamental that "as regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, . . . the Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it . . . to the extent that such action is not taken, the power lies dormant." Finley v. United States, 490 U.S. 545, 547, 109 S. Ct. 2003, 2006, 104 L. Ed. 2d 593 (1989) (quoting The Mayor v. Cooper, 73 U.S. 247, 6 Wall. 247, 252, 18 L. Ed. 851 (1868)). Originally, this meant that federal courts could not exercise jurisdiction over non-federal claims or issues that were closely related to federal claims. However, federal judges managed to accommodate the need to exercise jurisdiction over non-federal claims, and two forms of federal jurisdiction developed, ancillary and pendent jurisdiction. Friedenthal, et al., Civil Procedure 64 (1992).
Originally, ancillary jurisdiction was used to allow federal courts to adjudicate claims to property where the ownership of that property was otherwise properly being litigated in federal court. Freeman v. Howe, 65 U.S. (24 How.) 450, 16 L. Ed. 749 (1860); 13 Wright, et al., Federal Practice and Procedure § 3523 (1984). Before 28 U.S.C. § 1367 was enacted, the Federal Rules of Civil Procedure used a "transaction and occurrence" standard for compulsory counterclaims and cross-claims, thereby allowing ancillary jurisdiction over these claims. 13 Wright, et al., Federal Practice and Procedure § 3523 (1984).
Pendent jurisdiction was developed by the Supreme Court in Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824), when Justice Marshall declared that a federal court of original jurisdiction should have the power to decide all the questions that a case presented and the court needed to decide in order to function effectively. Osborn, 22 U.S. (9 Wheat.) at 823. As the doctrine matured, pendent jurisdiction was most commonly exercised when a plaintiff brought a federal question claim and sought to have a related state law claim against the same defendant adjudicated before the federal court. See, e.g., Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959) (Jones Act claim provides pendent jurisdiction for maritime claim that, by itself, could only be asserted on the admiralty side of federal court.). This was called "pendent claim" jurisdiction.
"Pendent party" jurisdiction was "jurisdiction over parties not named in any claim that is independently cognizable by the federal court." Finley v. United States, 490 U.S. 545, 550-51, 109 S. Ct. 2003, 2007-08, 104 L. Ed. 2d 593 (1989). Finley expressly stated that where federal courts were asked to assert pendent party jurisdiction, "as opposed to the addition of only claims, we will not assume that the full congressional power has been congressionally authorized, and will not read jurisdictional statutes broadly." Finley, 490 U.S. at 549, 109 S. Ct. at 2007. Thus, pendent party jurisdiction is generally not available unless the statute expressly authorizes it. See id. "Pendent claim" jurisdiction, by contrast,
exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .' U.S. Const. Art III. § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'