Joint and Several Jurisdiction

38 Pages Posted: 9 Oct 2015 Last revised: 10 Apr 2016

See all articles by Scott Dodson

Scott Dodson

UC Law, San Francisco

Philip A. Pucillo

Michigan State University College of Law

Date Written: August 25, 2015


Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants — one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive and unsettled. We identify and explore two possible answers, each based on a different theory of subject-matter jurisdiction. The first we denote “joint jurisdiction ”— an all-or-nothing theory — under which the presence of a nondiverse claim contaminates the whole case and deprives the court of diversity jurisdiction over diverse claims. The second we denote “several jurisdiction” — a claim-by-claim theory — under which the court lacks subject-matter jurisdiction over the nondiverse claim but always had, and continues to have, diversity jurisdiction over the diverse claim. We show that each theory boasts jurisprudential support, leaving the doctrine ambivalent on a question that affects thousands of cases filed in federal court each year. We then offer a way to reconcile these seemingly incompatible theories and precedent: manipulation of the nonjurisdictional time-of-filing rule. Finally, we discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action.

Keywords: diversity, Allapattah, 1332, jurisdiction, Caterpillar, Strawbridge, complete diversity, diversity jurisdiction, time-of-filing

Suggested Citation

Dodson, Scott and Pucillo, Philip A., Joint and Several Jurisdiction (August 25, 2015). 65 Duke Law Journal 1323 (2016), Available at SSRN:

Scott Dodson (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)


Philip A. Pucillo

Michigan State University College of Law ( email )

648 N. Shaw Lane
East Lansing, MI 48824
United States
517.432.6956 (Phone)


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