"Common Nucleus of Operative Fact" and Defensive Set-Off: Beyond the Gibbs Test

Indiana Law Journal

Volumn 74, Issue 1, 1998, Pages 171-179

  Fletcher, William A ^a,b,c,d  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b HARVARD COLLEGE   (United States)

^c UNIVERSITY OF OXFORD   (United Kingdom)

^d YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 1542423165     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (59)

1. FED. R. Civ. P. 1.
2. 28 U.S.C. § 1367 (1994).
3. U.S. CONST. art. III.
4. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
5. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
6. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
7. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
8. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
9. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
10. 383 U.S. 715, 725 (1966). To those familiar with the academic literature, my conclusion may not be a surprise. See L. TEPLY AND R. WHITTEN, CIVIL PROCEDURE 115-16 (1994) ("Nothing in the language of Article III explicitly requires that the scope of a 'case' or 'controversy' be defined by reference to the factual relationship between the joined claims, as opposed to, for example, the entire relationship between the parties to an action, which may include factually unrelated claims."); Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CAL. L. REV. 1399, 1463 (1983) ("[S]everal courts, including the Supreme Court, have upheld supplemental jurisdiction in many ancillary jurisdiction cases that do not meet the Gibbs fact relationship requirements. . . . Their existence undermines the conclusion that Gibbs sets any constitutional limits on supplemental jurisdiction based upon fact relatedness of claims."); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 ARIZ. ST. L.J. 849, 890-91 (1992) ("Although the Supreme Court arguably defined the constitutional 'case' limit of Article III in Gibbs, the Court's attention in recent years has primarily focused on the statutory limits of supplemental jurisdiction, and the Court has given very little discussion to the constitutional limits of Article III."); Mary B. McManamon, Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History, 46 WASH. & LEE L. REV. 863, 932 (1989); Karen N. Moore, The Supplemental Jurisdiction Statute: An Important but Controversial Supplement to Federal Jurisdiction, 41 EMORY L.J. 32, 39 (1992); Wendy C. Perdue, The New Supplemental Jurisdiction Statute - Flawed but Flexible, 41 EMORY L.J. 69, 70-71 (1992); Joan Steinman, Section 1367 - Another Party Heard From, 41 EMORY L.J. 85, 87-91 (1992).
11. See CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 436-37 (1928).
12. For example, a 1705 English statute allowed a defensive claim for set-off in suits at law when the plaintiff was insolvent, even when the claim arose out of events unrelated to the plaintiffs claim. See Statutes of the Realm, 1705, 4 Ann., ch. 17, § 11 (Eng.); BASIL MONTAGU, SUMMARY OF THE LAW OF SET-OFF WITH AN APPENDIX OF CASES ARGUED AND DETERMINED IN THE COURTS OF LAW AND EQUITY ON THAT SUBJECT 52-68 (1825) (discussing the 1705 and successor English statutes). For a useful general history, see generally McManamon, supra note 4.
13. See OLIVER L. BARBOUR, A TREATISE ON THE LAW OF SET OFF 24-25 (1841); 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA 656-69 (1836); THOMAS W. WATERMAN, A TREATISE ON THE LAW OF SET-OFF, RECOUPMENT, AND COUNTER-CLAIM 18 (1869).
14. See OLIVER L. BARBOUR, A TREATISE ON THE LAW OF SET OFF 24-25 (1841); 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA 656-69 (1836); THOMAS W. WATERMAN, A TREATISE ON THE LAW OF SET-OFF, RECOUPMENT, AND COUNTER-CLAIM 18 (1869).
15. See OLIVER L. BARBOUR, A TREATISE ON THE LAW OF SET OFF 24-25 (1841); 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA 656-69 (1836); THOMAS W. WATERMAN, A TREATISE ON THE LAW OF SET-OFF, RECOUPMENT, AND COUNTER-CLAIM 18 (1869).
16. Harry Shulman & Edward C. Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 YALE L.J. 393, 414-15 (1936). But if it is held that in an action for money, the defendant may not set off against the plaintiffs claim a separate claim for money against the plaintiff, conscience may be troubled a little. . . . Such a sacrifice may be required by the politics of federalism, enacted in statute or the Constitution. . . . . . . . But its harshness may be alleviated. The remedy for equitable set-off might be afforded as an exercise of ancillary jurisdiction in some cases. Id.
17. 1 JAMES W. MOORE & JOSEPH FRIEDMAN, MOORE'S FEDERAL PRACTICE § 13.03, at 696 (1938). [The permissive counterclaim] is an independent and unrelated claim and needs independent jurisdictional grounds to support it, with one exception. Set-off is that exception. Certain matter that does not arise out of the transaction sued on can nevertheless be used defensively for purposes of set-off; and for purposes of defeating or diminishing [the] plaintiffs recovery no independent jurisdictional grounds would be needed therefore. Id.; see also id. at n. 17 ("No cases squarely in point have been found to support the text. . . .").
18. See Marks v. Spitz, 4 F.R.D. 348, 350 (D. Mass. 1945). For cases applying the defensive set-off exception, see also Curtis v. Caldwell, 86 F.R.D. 454, 457-58 (E.D. Pa. 1980); Binnick v. Avco Fin. Servs., 435 F. Supp. 359, 366 (D. Neb. 1977); Herrmann v. Atlantic Richfield Co., 72 F.R.D. 182, 185 (W.D. Pa. 1976); United States v. Thermo Contracting Corp., 437 F. Supp. 195, 199 (D.N.J. 1976); Newburger, Loeb & Co. v. Gross, 365 F. Supp. 1364, 1367 (S.D.N.Y. 1973); Sherburne Corp. v. Ohio Spring Specialities, Inc., 13 Fed. R. Serv. 2d (Callaghan) 100, 101 (N.D. Oh. 1969); and Fraser v. Astra Steamship Corp., 18 F.R.D. 240, 242 (S.D.N.Y. 1955). For cases noting the exception but finding it not applicable, see United States v. Heyward-Robinson Co., 430 F.2d 1077, 1081 n.1 (2d Cir. 1970); Revere Copper & Brass Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709, 715 (5th Cir. 1970); Barrett v. L.F.P., No. 85-C-6495, 1986 U.S. Dist. LEXIS 23673, at *6 (N.D. Ill. June 25, 1986); Olevares v. Viking Dodge, Inc., 626 F. Supp. 114, 115 (N.D. Ill. 1985); Jones v. Sonny Gerber Auto Sales, Inc., 71 F.R.D. 695, 697 (D. Neb. 1976); Wigglesworth v. Teamsters Local No. 592, 68 F.R.D. 609, 613 (E.D. Va. 1975); Kaiser Aluminum & Chem. Sales, Inc. v. Ralston Steel Corp., 25 F.R.D. 23, 26 (N.D. Ill. 1959); and Marks, 4 F.R.D. at 350. But see Wolfson v. Artisans Sav. Bank, 83 F.R.D. 549 (D. Del. 1979) (rejecting the defensive set-off exception); Roberston Bros. & Co. v. Tygart Steel Prods. Co., 9 F.R.D. 468, 469 (W.D. Pa. 1949) (same).
19. According to Professor Moore, a claim for set-off must be "liquidated and emerge from a contract or judgment." 1 MOORE & FRIEDMAN, supra note 9, § 13.01, at 667 n.1 (emphasis added). A more accurate, simplified definition had been provided by Professor Clark 10 years before. According to Clark, "it was necessary that the [set-off] demands either be liquidated, or arise out of contract or judgment." CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 438 (1928) (emphasis added). In fact, the law of set-off was (and is) a complicated subject which no single sentence can hope to capture. Several treatises were devoted to set-off in the nineteenth century. See MONTAGUE, supra note 6; BARBOUR, supra note 7; WATERMAN, supra note 7. Joseph Story devoted a chapter of his equity treatise to the subject. 2 STORY, supra note 7, at 601-10. Modern definitions of set-off are varied and generally broader than Professor Moore's. See, e.g., 11 U.S.C. § 553(b) (1994) (set-off in bankruptcy); 28 U.S.C. §§ 1503, 2508 (1994) (authorizing set-off in favor of the United States); George B. Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27, 32-33 (1964) (describing variations in set-off under state law).
20. According to Professor Moore, a claim for set-off must be "liquidated and emerge from a contract or judgment." 1 MOORE & FRIEDMAN, supra note 9, § 13.01, at 667 n.1 (emphasis added). A more accurate, simplified definition had been provided by Professor Clark 10 years before. According to Clark, "it was necessary that the [set-off] demands either be liquidated, or arise out of contract or judgment." CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 438 (1928) (emphasis added). In fact, the law of set-off was (and is) a complicated subject which no single sentence can hope to capture. Several treatises were devoted to set-off in the nineteenth century. See MONTAGUE, supra note 6; BARBOUR, supra note 7; WATERMAN, supra note 7. Joseph Story devoted a chapter of his equity treatise to the subject. 2 STORY, supra note 7, at 601-10. Modern definitions of set-off are varied and generally broader than Professor Moore's. See, e.g., 11 U.S.C. § 553(b) (1994) (set-off in bankruptcy); 28 U.S.C. §§ 1503, 2508 (1994) (authorizing set-off in favor of the United States); George B. Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27, 32-33 (1964) (describing variations in set-off under state law).
21. 3 WAYNE D. BRAZIL ET AL., MOORE'S FEDERAL PRACTICE § 13.40, at 13-52 (3d ed. 1998).
22. 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3523, at 108-09 (2d ed. 1984); see also 6 id. § 1422, at 175-76 (2d ed. 1990). Some courts have indicated that a permissive counterclaim in the form of a set off, if used defensively rather than as the basis for affirmative relief, does not need independent jurisdictional grounds even though the claim is unconnected with the transaction or occurrence on which the main claim is based. This attitude is consistent with the treatment historically given to set offs. Id. (footnotes omitted).
23. See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1073 (2d Cir. 1977). Professor Thomas E. Green argued forcefully that there should be ancillary jurisdiction over both compulsory and permissive counterclaims in Federal Jurisdiction over Counterclaims, 48 Nw. U. L. REV. 271 (1953), convincing Judge Friendly of the correctness of his position, see United States v. Heyward-Robinson Co., 430 F.2d 1077, 1088 (2d Cir. 1970) (Friendly, J., concurring) (citing to Professor Green).
24. FED. R. CIV. P. 13(a) (compulsory counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim"); see id. at 13(b) (stating that a permissive counterclaim is "any claim . . . not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim").
25. See Moore v. New York Cotton Exch., 270 U.S. 593, 609 (1926).
26. See Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 617 n.14 (1966).
27. See West v. United States, 592 F.2d 487, 190-92 (8th Cir. 1979) (claims by the defendant against a third-party defendant); Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948) (claims by the defendant against a third-party defendant); Revere Copper & Brass Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709, 714-15 (5th Cir. 1970) (claim by a third-party defendant against the plaintiff).
28. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 365-67 (1921) (unnamed plaintiffs in a class action need not be of diverse citizenship). But cf. Zahn v. International Paper Co., 414 U.S. 291, 301 (1973) (unnamed plaintiffs must satisfy the jurisdictional amount). 28 U.S.C. § 1367 may have overruled Zahn. See In re Abbott Lab., 51 F.3d 524, 526-27 (5th Cir. 1995).
29. See Formulabs, Inc. v. Hartley Pen Co., 318 F.2d 485, 491-92 (9th Cir. 1963). After intervention of right was made more easily available in the 1966 amendment to Rule 23(a), it was likely but not certain that ancillary jurisdiction was available for all interventions as of right. See Curtis v. Sears, Roebuck & Co., 754 F.2d 781, 783 (8th Cir. 1985). In an odd anomaly, a would-be intervenor as of right who also would have been an indispensable party under Rule 19 could not invoke ancillary jurisdiction. See Chance v. County Bd. of Sch. Trustees, 332 F.2d 971, 973-74 (7th Cir. 1964). Under the new statute, there is supplemental jurisdiction over claims brought by a defendant intervening as of right in a diversity case, irrespective of what status he or she might have had under Rule 19. See 28 U.S.C. § 1367(b) (1994). For discussion of these complications, see 7C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1917 (2d ed. 1986).
30. Note that a transactional relationship was a necessary but not sufficient condition for ancillary jurisdiction. In several notable instances, ancillary and pendent party jurisdiction was denied despite the presence of a transactional relation. See Aldinger v. Howard, 427 U.S. 1, 18-19 (1976) (no pendent-party jurisdiction over additional defendant); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377 (1978) (no ancillary jurisdiction over claim by plaintiff against third-party defendant); Finley v. United States, 490 U.S. 545, 556 (1989) (no pendent-party jurisdiction over additional defendant).
31. 289 U.S. 238, 246 (1933) (sustaining federal judicial power to decide both state and federal claims if both constitute separate grounds "in support of a single cause of action" for redress of a violation of a "primary right" belonging to the plaintiff).
32. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
33. Id. (quoting U.S. CONST, art. III, § 2) (second emphasis and alteration added) (citation omitted).
34. See also Wolfson v. Artisans Savs. Bank, 83 F.R.D. 549, 551 (D. Del. 1979) (rejecting the defensive set-off exception); Robinson Bros. & Co. v. Tygart Steel Prods. Co., 9 F.R.D. 468, 469 (W.D. Pa. 1949) (same).
35. 726 F.2d 972 (3d Cir. 1984).
36. See id. at 992.
37. Id. at 988 & n.47.
38. See id. at 990.
39. 89 F.3d 379 (7th Cir. 1996).
40. Id. at 386.
41. Id. (quoting Ammermen v. Sween, 54 F.3d 423, 424 (7th Cir. 1995)) (alteration in original). A number of lower courts have held that Gibbs requires only a "loose factual connection." See, e.g., 13B WRIGHT ET AL., supra note 13, § 3567.1, at 117 (citing cases).
42. 427 U.S. 1 (1976).
43. Id. at 13.
44. 437 U.S. 365 (1978).
45. Id. at 371 & n.10.
46. 490 U.S. 545 (1989).
47. Id. at 549.
48. I regard the most likely explanation of the contemporary distinction between the terms "case" and "controversy" to be that stated by St. George Tucker in his edition of Blackstone: "Case" comprises criminal and civil disputes, whereas "controversy" comprises only civil disputes. 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES, app. E at 420-21 (1803); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431-32 (1793) (Iredell, J., dissenting); 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 536 n.2 (1833).
49. See supra text accompanying note 7.
50. FED. R. CIV. P. 13(b).
51. FED. R. CIV. P. 14.
52. FED. R. CIV. P. 18(a).
53. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1996).
54. See id. at 726 (stating that a justification for pendent jurisdiction "lies in considerations of judicial economy, convenience and fairness to litigants"); Console v. Fed. Maritime Comm'n, 383 U.S. 607, 617 n.14 (1966) (noting that "considerations of judicial economy and fairness to all the parties lie behind the doctrine of ancillary jurisdiction").
55. This would not be the first time that what was originally a more generous Article III standard has later been used as a restrictive standard. In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970), the Supreme Court granted standing more generously than in previous cases, stating for the first time that Article III required a plaintiff to have "injury in fact." Id. at 152-53. Though the "injury in fact" standard was intended by the Court in Data Processing to be a basis for granting standing more generously, it has recently been the basis for an Article IH denial of standing to plaintiffs acting as private attorneys general. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see also William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 229-31 (1988) (calling the "injury in fact" requirement a "singularly unhelpful, even incoherent, addition to the law of standing"); Cass R. Sunstein, What 's Standing after Lujan? Of Citizen Suits, "Injuries, " and Article III, 91 MICH. L. REV. 163 (1992) (discussing standing in general).
56. 430 F.2d 1077 (2d Cir. 1970) (Friendly, J., concurring).
57. Id. at 1088.
58. Gibbs, 383 U.S. at 725 (emphasis added). There has been much discussion in the literature of the relationship between this sentence of Gibbs and the preceding "common nucleus" language. See, e.g., Matasar, supra note 4, at 1458-63; 13B WRIGHT ET AL., supra note 13, § 3567.1, at 114.
59. 28 U.S.C. § 1367(a) (1994).