Colloquy: Supplemental Jurisdiction, the Ali, and the Rule of the Kroger Case

Abstract

In this four-part exchange we discuss the ALI's proposed new version of the supplemental-jurisdiction statute, 28 U.S.C. Section 1367. Professor Hartnett begins the colloquy with 'Would the Kroger Rule Survive the ALI's Proposed Revision of Section 1367?' He asserts that the American Law Institute's proposed revision of Section 1367 - set forth in Tentative Draft No. 2 of the ALI's Federal Judicial Code Revision Project and approved by the Institute in May 1998 - would inadvertently cut back more substantially on the rule of the Kroger case than was intended by the ALI's Reporter, Professor Oakley. If applied to the precise facts of the Kroger case, the ALI's statute would generate precisely the same outcome as in Kroger itself: supplemental jurisdiction would not be available to permit the plaintiff in a diversity suit to join a claim against a nondiverse third-party defendant. But Hartnett points out that this congruence between the ALI-s statute and the rule of the Kroger case is contingent on the relatively rare scenario featured in Kroger, where the third-party defendant was a cocitizen of both the plaintiff and the defendant. It is more likely that a third-party defendant who is a cocitizen of the plaintiff will not also be a cocitizen of the defendant, and Hartnett shows why, in this more common situation, the ALI's statute would extend supplemental jurisdiction to the plaintiff's claim against the nondiverse third-party plaintiff.

Oakley's first response, 'Kroger Redux,' proposes a statutory cure for Hartnett's problem. Oakley drafts new statutory language that if added to the ALI's proposed new Section 1367 would conform the scope of supplemental jurisdiction under the ALI's statute to Hartnett's conception of the rule of the Kroger case. But Oakley goes on to consider whether Hartnett's conception of the rule of the Kroger case is the best conception to codify, and determines that it is not. Oakley advocates instead a 'minimal conception' of the rule of the Kroger case. Because the present text of the ALI's proposed new Section 1367 is fully consistent with Oakley's preferred conception of the Kroger rule, Oakley concludes that the ALI's statute should be enacted by Congress as is, without inserting the limiting amendment earlier proposed but ultimately rejected.

In 'Section 1367 Producamus,' Hartnett responds to Oakley's 'no harm, no foul' defense of the ALI's proposed new Section 1367 by questioning whether Oakley's minimal conception of the Kroger rule gives away too much of the rule of complete diversity. After concluding that it does, Hartnett proposes his own draft of a curative amendment that Congress might enact along with the balance of the ALI's proposed new Section 1367. The exchange concludes with Oakley's 'Fiat Lux,' in which he discusses the strengths and weaknesses of Hartnett's proposed amendment, and defends his earlier conclusion that no amendment is needed.

Keywords: supplemental jurisdiction, ALI, Kroger, diversity jurisdiction, 1367

JEL Classification: K41