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Defining the Limits of Supplemental Jurisdiction Under 28 U.S.C. 1367: A Hearty Welcome to Permissive Counterclaims

16 Pages Posted: 12 Nov 2008  

Michelle S. Simon

Pace University - School of Law

Date Written: 2005

Abstract

In 1990, Congress passed 28 U.S.C. sec. 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, "supplemental jurisdiction." Supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the "same case or controversy under Article 1II of the United States Constitution." This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and after the codification of sec. 1367, by looking at the meaning of "same case or controversy." It then examines two Circuit Court opinions that have held permissive counterclaims may be subject to supplemental jurisdiction as part of the "same case or controversy" as the claim over which the court has original jurisdiction. The author concludes that recent opinions from the Second and Seventh Circuit Courts of Appeal have correctly recognized federal courts' ability to hear permissive counterclaims without independent jurisdiction.

Suggested Citation

Simon, Michelle S., Defining the Limits of Supplemental Jurisdiction Under 28 U.S.C. 1367: A Hearty Welcome to Permissive Counterclaims (2005). Lewis & Clark Law Review, Vol. 9, 2005. Available at SSRN: https://ssrn.com/abstract=1299890

Michelle S. Simon (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

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