U.S. 4th Circuit Court of Appeals Reports

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ROSMER v. PFIZER INC., 272 F.3d 243 (4th Cir. 2001)
LOUISE ROSMER, on behalf of herself and as class representative,
Plaintiff-Appellant, v. PFIZER INCORPORATED, Defendant-Appellee.
No. 00-2224.
United States Court of Appeals, Fourth Circuit.
November 14, 2001.

ORDER

Appellant filed a petition for rehearing and rehearing en banc.

On the petition for rehearing, Chief Judge Wilkinson and Judge
Hall (SUSCJ, 9CCA) voted to deny. Judge Motz voted to grant.

A member of the Court requested a poll on whether this case should be
reheard en banc. The poll did not attract a majority of the judges in
active service.
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Judges Widener, Niemeyer, Luttig, and Motz voted for rehearing
en banc. Chief Judge Wilkinson and Judges Williams, Michael, and
Gregory voted against rehearing en banc. Judges Wilkins, Traxler,
and King were disqualified from participation in the poll on rehearing
en banc.

Chief Judge Wilkinson filed an opinion concurring in the denial of
rehearing en banc. Judge Niemeyer filed an opinion dissenting from
the denial of rehearing en banc. Judge Motz filed an opinion dissenting
from the denial of rehearing en banc, in which Judge Luttig joined.

The petition for rehearing and rehearing en banc are hereby denied.
Entered at the direction of Chief Judge Wilkinson for the Court.

WILKINSON, Chief Judge, concurring in the denial of rehearing en
banc:

The panel majority opinion sets out at length my view of the proper
interpretation of 28 U.S.C. § 1367. See Rosmer v. Pfizer Inc.,
263 F.3d 110 (4th Cir. 2001). I do not intend to reiterate my position
here. However, I do wish to state briefly my points of difference with my
brother's dissent to the denial of rehearing en banc in this case.

Some of the dissent's objections are different from those expressed in
the dissent from the panel majority opinion. See Rosmer, 263 F.3d at
122-29 (Motz, J., dissenting). Nevertheless, there is a common
denominator. Indeed, the two dissents bring to mind Yogi Berra's immortal
words: "It's like deja vu all over again." Like the earlier dissent's
reading of § 1367, this dissent's textual analysis represents a
thinly-veiled attack upon diversity jurisdiction. The opinion begins with
policy, ends with policy, and sprinkles plenty of policy arguments in
between. See post at 8-12 and 17. Because I do not believe that the text
of § 1367 is consistent with the dissent's policy concerns, and
because I do not believe that the federal courts are empowered to employ
policy arguments to trump the plain meaning of Congress' words, I concur
in the denial of rehearing en banc.

I.

The dissent's approach rests in unadorned fashion upon two premises.
The first is that diversity is a disfavored form of federal
jurisdiction. And the second is that Rule 23 is a disfavored rule in the
Federal Rules of Civil Procedure. The dissent objects that the majority
opinion "substantially expand[s] diversity jurisdiction in the federal
courts." Post at 8. It reiterates that "[b]y opening federal courts to
virtually every class action involving state law, the panel opinion
broadly expands federal jurisdiction in diversity cases." Post at 9. It
submits that the majority opinion's reading of § 1367 "requires the
court to put blinders on and thus ignore long-standing principles of
federal jurisdiction and class action law." Post at 9. In a similar
vein, the panel majority ignores "whether Congress intended to preserve
the traditional principles of jurisdiction." Post at 10. The result the
majority opinion reaches is "traumatic." Post at 10.

Continuing its policy brief, the dissent observes that diversity
jurisdiction "inherently . . . comes into tension with the traditional
division of judicial responsibility between the states and the federal
government." Post at 17. "And for that reason, and other more pragmatic
ones," it explains, "diversity jurisdiction has never been favored with
aggressive expansion, either by Congress or the courts." Post at 17.
"Indeed," it relates, "over the years, Congress has continually and
without exception taken modest steps to limit the scope of diversity
jurisdiction in this
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sensitive area of federalism." Post at 17. As if the real source of
objection to the panel majority opinion were not already abundantly clear,
the dissent cannot resist adding that the panel majority "lack[s] a
sensitivity for this overarching policy in the federal structure," and "not
only amplifies many fold the circumstances in which diversity jurisdiction
is available, but also increases vastly the power of federal class actions,
all at the expense of the states' long-standing privilege to decide
state-law cases in their own courts." Post at 17. The panel majority
decision is therefore "a momentous mistake." Post at 17.

The consequences of the two candidly stated premises that animate these
policy prescriptions are quite remarkable. We are being asked to arrogate
unto ourselves, under the guise of interpretive maxims or otherwise, the
authority to establish the parameters of our own jurisdiction. This is
fundamentally at odds with the separation of powers and the
constitutional scheme.

Whether we like it or not, Congress has long had the authority to
set the bounds of federal jurisdiction. See U.S. Const. art. III, § 1.
Congress has long had the authority to invest diversity jurisdiction in
the federal courts. See 28 U.S.C. § 1332. And assuming the strict
requirements of Fed.R.Civ.P. 23 can be satisfied, the resolution of
class actions is likewise part of the accepted business of the federal
judiciary.

II.

The text and statutory structure of § 1367 are straightforward.
Section 1367(a) is a general grant of supplemental jurisdiction, stating
that "in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over 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." §
1367(a). Section 1367(b) contains a list of exceptions to the
supplemental jurisdiction authority conferred by § 1367(a).
Rule 23 is not among them.

The dissent advances a number of suggestions as to how we might
accomplish the insertion of Rule 23 into § 1367(b)'s list of
exceptions. These suggestions simply do not work. The dissent first
argues that there was no "civil action of which the district courts have
original jurisdiction" in this case, as required by § 1367. This is
because the only "civil action" actually commenced was a class action,
and "the class cannot be broken apart for purposes of creating original
jurisdiction and then mended back together under the illusion that the
class members who destroyed original jurisdiction can be converted to
`supplemental' members under § 1367." Post at 12.

The problems with this objection are manifold. First, as the majority
opinion states, see Rosmer, 263 F.3d at 116, the idea that a "civil
action" in § 1367(a) means the entire class action and not just
Rosmer's claim renders virtually superfluous other language in the
statute — in particular, the phrase "over all other claims that are
so related to claims in the action within such original jurisdiction."
§ 1367(a). The language of § 1367(a) itself contemplates that a
"civil action" refers to one claim in which original jurisdiction is
proper. Id. The other claims that are "so related to claims in the action
within such original jurisdiction" are properly in federal court because
of § 1367's grant of supplemental jurisdiction. Id.

In addition, § 1367(b) contains an exception for Rule 20. And
Rule 20 authorizes
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permissive joinder of parties at the beginning of an action, not just in
an ongoing diversity action. Indeed, a plaintiff will usually join all
Rule 20 defendants in the initial complaint rather than waiting to do so
later. Thus, if the dissent were correct, there would be no need to except
Rule 20 from the grant of supplemental jurisdiction in § 1367(a).
Section 1367(a) itself would except Rule 20 from the statute's conferral
of supplemental jurisdiction.

The dissent next advances the novel argument that the supplemental
claims of the unnamed class members are not part of the same
constitutional case under United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966), as required by § 1367(a). Post at 12-13. Rather, the dissent
submits, the "absent class members' claims are bundled with
representative parties' claims in order to facilitate adjudication." Post
at 13.

To my knowledge, this suggestion has not been advanced by any other
judge or court. The dissent cites no specific authority to support it.
Instead, it states that "all the jurisprudence of Rule 23(b)(3) class
actions and of Article III of the Constitution" supports its view. Post
at 13. What likely accounts for the dissent's failure to reference case
law or academic commentators is that its proposal leads inescapably to
the conclusion that Rule 23 somehow runs afoul of the case or controversy
requirement of Article III.

Indeed, the dissent states that "[t]here is no constitutional
requirement prohibiting two constitutional cases from being adjudicated
simultaneously, and the simultaneous prosecution of similar claims for
judicial efficiency is the justification for Rule 23(b)(3)." Post at 14.
But I am at a loss to identify the doctrinal foundations for such a
position. A class action is, by definition, one action — i.e., one
case or controversy. It certainly contains many claims by many
plaintiffs. But the suggestion that each of those claims constitutes a
separate constitutional case or controversy is quite misplaced. The
traditional legal understanding is that a class action must satisfy the
transactional test of Gibbs. See 7A Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice and Procedure § 1778 (1986)
(citing cases holding that "an action can be brought under subdivision
(b)(3) even though there is not a complete identity of facts relating to
all class members, as long as a `common nucleus of operative facts' is
present, a test very similar to that used to determine the application of
the doctrine of pendent jurisdiction [under Gibbs]") (footnotes
omitted). See also William A. Fletcher, "Common Nucleus of Operative
Fact" and Defensive Set-Off: Beyond the Gibbs Test, 74 Ind. L.J. 171, 174
(1998) (Symposium: A Reappraisal of the Supplemental Jurisdiction
Statute: Title 28 U.S.C. § 1367).

The dissent claims that "the constitutionally distinct nature of the
claims aggregated under Rule 23(b)(3) was the backbone of the Supreme
Court's decision in Zahn." Post at 13 (referring to Zahn v. Int'l Paper
Co., 414 U.S. 291 (1973)). But the Zahn Court never said anything to the
effect that claims aggregated in a class action are "constitutionally
distinct." Indeed, Zahn does not so much as mention Gibbs. Thus, the word
"backbone" is doing an awful lot of inferential work in that contention.

In addition, the dissent's view of class actions is flatly inconsistent
with the Supreme Court's decision in Supreme Tribe of Ben-Hur v. Cauble,
255 U.S. 356 (1921). Realizing that Ben-Hur strongly cuts against its
contention that claims aggregated under Rule 23(b)(3) are
"constitutionally
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distinct," the dissent suggests that Ben-Hur "likely would not apply to
23(b)(3) class actions." Post at 14 n. 2. No authority of which I am aware
supports this assertion. The dissent offers none. Again, I am at a loss to
identify any doctrinal source for this argument.

Not only is there a lack of authority to support the dissent's view
of class actions, but its position also generates perverse implications
from its own perspective. The dissent purports to desire to limit the
scope of the class action device, accusing the panel majority in
Rosmer of "increas[ing] vastly the power of federal class actions, all
at the expense of the states' long-standing privilege to decide state law
cases in their own courts." Post at 17. But in freeing the claims
of absent class members from the case or controversy requirement,
the dissent opens the jurisdictional doors in federal class actions wide
open. The dissent is the unwitting advocate of expanding the use of
class actions in federal court.

The dissent's next contention is that "Congress would never even have
considered adding Rule 23 to the list" of § 1367(b)'s exceptions
because "Rule 23 does not provide for the addition of parties and their
claims." Rather, "[a]ll parties and claims are already included as the
underlying case over which the court must have jurisdiction." Post at
15. But in so asserting, the dissent's analysis proves no more persuasive
than any argument that assumes its conclusion. Nothing supports the
contention that "Rule 23 cannot be broken into an underlying claim and
added claims," Post at 16, except the fact that the dissent says so.

The dissent's final plea is that we consult the legislative history.
This argument has already been canvassed at length in Rosmer. See 263
F.3d at 117-18, 121-22. I see no reason to revisit it here. The
suggestion that Congress could not possibly have meant what it said is
self-evidently erroneous. The reason that Rule 23 is not included in
§ 1367(b)'s list of exceptions may very well have to do with the
"judicial efficiency" concerns that the dissent concedes to be the virtue
of the class action device. Post at 8. Congress provided for a single
class action to be resolved in a single federal forum, assuming it
satisfies Rule 23's requirements and jurisdiction exists over the named
plaintiff's claim. Congress has struck the balance between limiting
diversity and enhancing efficiency, and it is not for us to undo it.

III.

I may well share the dissent's policy predilections. What I absolutely
do not share, however, is the view that our notions of federal
jurisdiction trump those of the coordinate branch of government to which
such questions are constitutionally entrusted. We are being called upon
to express our policy preferences against diversity jurisdiction and
against class actions by the bald amendment of a statute from the bench.
We are being asked quite transparently to insert the words "Rule 23" into
§ 1367(b)'s list of exceptions where Congress has not included them.
It is difficult to imagine a more obvious situation for the application
of expressio unius est exclusio alterius. Section 1367(b) includes
Rules 14, 19, 20, and 24 among its list of exceptions. It does not include
Rule 23. The federal judiciary is being invited to perform a legislative
trick.

NIEMEYER, Circuit Judge, dissenting:

On the poll to rehear this case en banc, three members of the court
unfortunately found themselves unable to participate, leaving a four four
vote and denying the possibility that the court en banc can reconsider
this important case. Because I
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believe that this vote leaves us with an opinion advancing a
fundamentally flawed interpretation of supplemental jurisdiction under
28 U.S.C. § 1367 and substantially expanding diversity jurisdiction
in the federal courts, I write in dissent from our denial of an en banc
hearing.

I

Louise Rosmer, on behalf of herself and a class of all persons
similarly situated, filed this class action against Pfizer,
Incorporated, in South Carolina state court, for injury caused by the
antibiotic Trovan. She asserted only state-law causes of action. When
Pfizer removed the case to federal court, relying on diversity
jurisdiction under 28 U.S.C. § 1332, Rosmer filed a motion to remand
the case to state court on the ground that class members could not
satisfy the jurisdictional requirements of 28 U.S.C. § 1332. She
acknowledged, however, that she and Pfizer were of diverse citizenship
and that the amount in controversy between them exceeded $75,000.

The district court denied Rosmer's motion to remand and retained
jurisdiction over the case, concluding that it had diversity jurisdiction
over Rosmer's individual claim against Pfizer and that it had
supplemental jurisdiction, under 28 U.S.C. § 1367, over class members
whose claims were for less than the $75,000 minimum amount required for
diversity jurisdiction. By a split decision, a three-judge panel of this
court affirmed the district court. See Rosmer v. Pfizer, Inc., 263 F.3d 110
(4th Cir. 2001). On the poll for rehearing en banc, four judges voted in
favor of rehearing the case, four voted against rehearing the case, and
three recused themselves.

The panel opinion, which has thus been left standing, holds that,
in a class action, 28 U.S.C. § 1367 confers federal subject matter
jurisdiction over class members whose individual claims do not satisfy
the amount in controversy requirement of 28 U.S.C. § 1332, "as
long as diversity jurisdiction exists over the claims of one named
plaintiff." Rosmer, 263 F.3d at 112. With this dramatic holding, the
court concludes that virtually every class action under state law may
be brought in federal court because only one claimant needs to satisfy
the jurisdictional requirements of § 1332. By opening federal courts
to virtually every class action involving state law, the panel opinion
broadly expands federal jurisdiction in diversity cases.

When it adopted 28 U.S.C. § 1367, Congress never intended this
startling conclusion, and the plain language of § 1367 does not
justify it. To read § 1367 as the panel majority does requires the
court to put blinders on and thus ignore long-standing principles of
federal jurisdiction and class action law. The panel's construction also
compels the conclusion that Congress sub silentio overruled the Supreme
Court's seminal decision in Zahn v. International Paper Co., 414 U.S. 291
(1973), which Congress stated, in its legislative history, it did not
intend to do when it enacted § 1367.

II

No one disputes that Congress enacted 28 U.S.C. § 1367 to overrule
the Supreme Court's decision in Finley v. United States, 490 U.S. 545
(1989) (holding that federal courts were not conferred pendent party
jurisdiction under then-existing law), and to expand the concept of
pendent-claim jurisdiction in its then-existing form, as articulated in
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), to include
pendent-party jurisdiction. In other words, § 1367 was enacted to
cover not only related claims of parties, but also related claims of
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nonparties. The only limitation imposed was that the related claims must
be part of a single, constitutional case. See 28 U.S.C. § 1367(a). As
the Court in Gibbs articulated:

Pendent jurisdiction, in the sense of judicial
power, 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." . . . The state and federal claims must derive
from a common nucleus of operative fact.

Id. (emphasis added).

While § 1367 expanded supplemental jurisdiction to include related
claims of nonparties, Congress never intended to expand original
jurisdiction over the underlying claims to which the pendent claims
attached. Yet, the panel opinion concludes that, regardless of whether
Congress intended to preserve the traditional principles of jurisdiction,
the language of § 1367, perhaps unwittingly, undid the amount
in controversy requirement for original jurisdiction. A straightforward
reading of § 1367, however, demonstrates that such a traumatic result
is erroneous.

The statutory grant of supplemental jurisdiction applies only to
"civil action[s] of which the district courts have original jurisdiction."
28 U.S.C. § 1367(a) (emphasis added). The first step in any analysis,
therefore, is to determine whether the original jurisdiction requirement
has been satisfied. The panel majority overlooked this step altogether.

The panel opinion, through a sleight of analytical hand, avoids the
first step by converting Rosmer's class action claim into an individual
claim to create original jurisdiction and then adding back the absent
class action members' claims as "supplemental" claims.[fn1] Such
analytical magic,
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however, perpetuates a misunderstanding of Federal Rule of Civil
Procedure 23, governing class actions.

Unlike the other forms of aggregation permitted under the Federal
Rules — impleader, joinder, and intervention — Rule 23 is not a
mechanism to add parties. In a class action, both the parties and the
class members whom the parties purport to represent are already "in"
the action. Because class members are part and parcel of a class
action, the class cannot be broken apart for purposes of creating original
jurisdiction and then mended back together under the illusion that
the class members who destroyed original jurisdiction can be converted
to "supplemental" members under § 1367.

Accordingly, when determining whether the court has original
jurisdiction over the "civil action" — in this case a Rule 23(b)(3)
class action — it must focus on the action commenced and not on
part of it as convenient to achieve a desired result. When looking at
original diversity jurisdiction in a Rule 23(b)(3) class action, the
court must be satisfied that the claim of each party and class member,
individually, satisfies the jurisdictional amount. Zahn, 414 U.S. at
301. Because that requirement is concededly not satisfied in this case,
the first step of the § 1367 analysis is not satisfied and there is
no federal case to which supplemental jurisdiction can attach.

III

Even if we assume that the "take-it-apart and put-it-back-together"
end-run around the original jurisdiction requirement in § 1367 is
legitimate, the panel's conclusion must fail because the proposed
"supplemental" claims are not part of the "same case," as required by
Gibbs and codified in § 1367(a). To qualify for supplemental
jurisdiction under § 1367(a), the supplemental claims must be so
related to the original claim that the two "form part of the same case or
controversy under Article III of the United States Constitution."
28 U.S.C. § 1367(a). But Rule 23(b)(3) authorizes class actions
involving different cases or controversies that are constitutionally
distinct, as long as they involve a common question of law or fact.
Although absent class member's claims are bundled with representative
parties' claims in order to facilitate adjudication, the claims
formulating the bundle are not part of one case in a constitutional
sense. To conclude that they are is simply inconsistent with all the
jurisprudence of Rule 23(b)(3) class actions and of Article III of the
Constitution.

Rule 23(b)(3), added in 1966, authorizes a representative party to
represent absent class members if there are common questions of law or
fact and those questions predominate. See Rule 23(a), (b)(3). The
existence of common questions of law and fact, however, does not make
bundled claims part of the "same case" in a constitutional sense. The
parts of the bundle do not derive from a common nucleus of operative
fact. In this case, for example, each claim in the Rule 23(b)(3) bundle
has different facts with regard to the circumstances under which the
claimants' husbands took Trovan, their medical history, the amounts
taken, and the effects on the claimants. This bundle of cases, derived
from different nuclei of operative fact is joined only for judicial
efficiency, not
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because they are the "same case" as understood under Article III.

Indeed, the constitutionally distinct nature of the claims aggregated
under Rule 23(b)(3) was the backbone of the Supreme Court's decision in
Zahn. The Court accepted the characterization that a spurious class
action before 1966 and a 23(b)(3) class action after the 1966 changes
remained "a congeries of separate suits." Zahn, 414 U.S. at 296 (quoting
Steele v. Guaranty Trust Co. of N.Y., 164 F.2d 387, 388 (2d Cir. 1947)).
The separate quality of the absent members' claims led to the conclusion
that "each claimant must, as to his own claim, meet the jurisdictional
requirements." Id.; see also id. at 301 (requiring "[e]ach plaintiff in a
Rule 23(b)(3) class action [to] satisfy the jurisdictional amount").[fn2]

As a codification of Gibbs, § 1367(a) clearly requires that the
original and supplemental claims "form part of the same case or
controversy under Article III." Section 1367(a) does not affect the
requirement that the state and federal claims must derive from a common
nucleus of operative fact. Accordingly, the statute preserves the
justification for Zahn and cannot be understood to undo that case.

The holding in Zahn, of course, does not say that a class action
authorized under Rule 23(b)(3) cannot be prosecuted legitimately as a
group of cases under Article III of the Constitution. There is no
constitutional requirement prohibiting two constitutional cases from
being adjudicated simultaneously, and the simultaneous prosecution of
similar claims for judicial efficiency is the justification for
Rule 23(b)(3). But this simultaneous processing of similar claims does not
mean that the various claims are one constitutional claim. They are not,
as Zahn explains; they do not derive from the same nucleus of operative
fact, see Gibbs, 383 U.S. at 725.

The panel opinion ignores this understanding of Rule 23 and consequently
feels free to "find" original jurisdiction by reason of Rosmer's
individual claim and then to "find" supplemental jurisdiction over all
other class members' claims, even though they do not arise from the
same nucleus of operative fact. By doing so, the panel majority opinion
tramples an explicit requirement of § 1367(a).

IV

The panel majority also relies, for its conclusion, on the fact that,
in § 1367(b), the class action rule is not included in the list of
rules that will destroy diversity jurisdiction. Section 1367(b) indicates
simply that supplemental jurisdiction is not
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conferred in diversity jurisdiction cases over "persons made parties under
Rule 14, 19, 20, or 24." The panel majority reasons that, because
Rule 23 is not so listed, Congress must have intended to permit supplemental
jurisdiction in federal court over class action cases. But this again
mischaracterizes § 1367(b) and perpetuates the misunderstanding of
Rule 23.[fn3]

Contrary to the panel majority's assertion, the absence of Rule 23 from
the list in § 1367(b) does not signal an overruling of Zahn. Rule 23
is absent because it is different than Rules 14, 19, 20, and 24. While
the Rules in the list enable adding (whether structurally or
analytically) new parties and their claims to an underlying claim for
which diversity jurisdiction exists, Rule 23 does not provide for the
addition of parties and their claims. All parties and claims are already
included as the underlying case over which the court must have
jurisdiction. Because both structurally and analytically the class action
rule is not a device to add parties, the question never arises whether
the addition of parties will destroy class action jurisdiction. In
enacting § 1367(b), Congress was focusing on whether diversity
jurisdiction over an underlying claim would be destroyed by the addition
of parties, and it concluded that such an addition would indeed destroy
diversity jurisdiction. As Rule 23 cannot be broken into an underlying
claim and added claims, it is analytically distinct from and does not
belong among the rules listed in § 1367(b).

To read a repeal of Zahn by implication, based on the ground that
Rule 23 was not included in the list of rules set forth in § 1367(b),
represents a basic misunderstanding of the reason for the exceptions in
§ 1367(b) and the nature of Rule 23. With a more focused
understanding of § 1367(b)'s exceptions, it becomes clear that
Congress would never even have considered adding Rule 23 to the list.
Accordingly, no valid conclusions can be drawn from the fact that
Rule 23 was excluded from the list.

V

The panel opinion also refuses to consult the legislative history,
concluding that the language of § 1367 so clearly supports its
interpretation that no ambiguity exists to justify looking at what
Congress said it intended.

While I assert in this opinion that a natural reading of § 1367 more
clearly supports the conclusions that I have reached, both the panel
majority opinion and I should recognize a sufficient level of ambiguity
to permit a look at the legislative history. Obviously, the panel
opinion cannot afford to take that look; the report attending the bill
clearly states that Congress did not wish to overrule Zahn. See H.R.
Rep. No. 101-734, at 28-29 (1990), reprinted in 1990 U.S.C.C.A.N.
6860, 6874-75, 6875 n. 17. The panel dismisses this observation simply
by noting that it is "buried" in the legislative history. Yet, it is
"buried" precisely at the point of the legislative history where Congress
describes its intent. The fact that Congress describes its intent
after several pages addressed to other subjects should not deny its
consideration.

By dismissing this legislative history with the assertion that the
statutory language
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of § 1367 unambiguously favors its interpretation, the panel majority
conveniently concludes that Congress, sub silentio, overruled the seminal
Supreme Court decision in Zahn. However, Congress's stated intent further
clarifies what is apparent from reading § 1367 in light of the nature
of Rule 23 such a drastic change in federal jurisdiction was not Congress'
intent.

VI

Over the years, diversity jurisdiction has served a useful role in
providing an alternative forum for state-law claims, particularly to avoid
potential local prejudices in particular types of cases. But inherently,
any such facility comes into tension with the traditional division of
judicial responsibility between the states and the federal government.
And for that reason, and other more pragmatic ones, diversity
jurisdiction has never been favored with aggressive expansion, either by
Congress or the courts. Indeed, over the years, Congress has continually
and without exception taken modest steps to limit the scope of diversity
jurisdiction in this sensitive area of federalism.

Lacking a sensitivity for this overarching policy in the federal
structure, the panel majority in this case not only amplifies many fold
the circumstances in which diversity jurisdiction is available, but also
increases vastly the power of federal class actions, all at the expense
of the states' long-standing privilege to decide state-law cases in their
own courts.

This decision is a momentous mistake, and I respectfully dissent
from the decision of our court not to rehear this case en banc.

[fn1] It is curious that my good colleague's opinion concurring in the
refusal to hear this case en banc states on the one hand that, as used in
§ 1367(a) "a `civil action' refers to one claim in which original
jurisdiction is proper," ante at 5 (emphasis added), and on the other
hand, when referring to a class action, the whole case becomes the civil
action, as "Congress provided for a single class action to be resolved in
a single federal forum," id. at 8. Obviously, when it becomes necessary
to avoid the requirement of § 1367(a) that the federal court have
jurisdiction over a "civil action" before it can consider supplemental
jurisdiction over other claims, the concurring opinion defines "civil
action" to be a claim. But when a class action under Rule 23(b)(3) is
examined, the opinion acknowledges, as it must, that the "civil action"
is the class action. This double standard for analysis continues what I
have observed about the panel majority opinion — it functions with
the "sleight of analytical hand."

Of course, a class action is one civil action. See Fed.R.Civ.P. 2; id.
23(b) (stating that a class action is one way of maintaining a civil
action). And the "claims" within a civil action are in the aggregate one
civil action. It is precisely for this reason that when § 1367(a)
requires that the federal court first have jurisdiction over the "civil
action," it must be requiring that the court have jurisdiction over the
class action. Because each count or claim of Rosmer's civil action is
made on behalf of a class, the district court cannot reach the question
of supplemental jurisdiction before it satisfies the requirement of
original jurisdiction over Rosmer's class action. The original
jurisdiction requirement cannot be satisfied by considering only Rosmer's
personal claim, which constitutes only an analytical part of the "civil
action."

Section 1367(a)'s requirement of a constitutional case, which the
concurring opinion confuses with a civil action, comes after the
requirement that the court have jurisdiction over a civil action is
satisfied. Only after finding original jurisdiction over a civil action
may a court exercise supplemental jurisdiction over other claims that are
part of the "same case" (in a constitutional sense). The concurring
opinion persists in overlooking the distinctions, made in the text of
§ 1367(a), between a civil action and a constitutional case. This
same confusion also led the panel majority opinion to fail to recognize
that a civil action may include an aggregation of distinct constitutional
cases. See, e.g., Zahn, 414 U.S. at 296 (observing that a 23(b)(3) class
action is a "congeries of separate suits").

[fn2] The categorization, in Zahn, of 23(b)(3) class actions as an
aggregation of separate suits would likely also require complete
diversity among 23(b)(3) class members, as per Strawbridge v. Curtis, 7
U.S. (3 Cranch) 267 (1806). While Supreme Tribe of Ben Hur v. Cauble,
255 U.S. 356 (1921) is often cited for the proposition that a class action
may go forward in federal court when the complete diversity requirement
is met as to class representatives only, that case likely would not apply
to 23(b)(3) class actions. Ben Hur involved a class, consisting of
members of a fraternal benefit organization, suing over the
organization's practices. Because "prosecution of separate actions by .
. . individual members of the class would create a risk of inconsistent
or varying adjudications . . . which would establish incompatible
standards of conduct for the party opposing the class," that case would
have been certified under the current Rule 23(b)(1). As the facts were
clearly distinguishable from the scenario envisioned by Rule 23(b)(3),
Ben Hur likely is not applicable to Rule 23(b)(3). Accordingly, complete
diversity among class members appears to be required for diversity
jurisdiction over Rule 23(b)(3) class actions.

[fn3] The concurring opinion continues this misunderstanding of Rule 23
by suggesting that under my analysis, because parties can be joined under
Rule 20 at the commencement of an action, Rule 20 should also not be on
the list. Ante at 5. Unlike Rule 23, however, Rule 20 is like the other
rules on the list in that its structure requires, as a condition
precedent, an underlying civil action to which related claims are added.
In contrast, a class action is, structurally, the "underlying" civil
action, there are no related claims to add.

DIANA GRIBBON MOTZ, dissenting from the denial of rehearing en banc:

I voted to rehear this case for the reasons set forth in my panel
dissent. See Rosmer v. Pfizer Inc., 263 F.3d 110, 122-129 (4th Cir. 2001)
(Motz, J., dissenting). I will not repeat those reasons here. I write
again only to address the assertion in the concurrence that some personal
policy preference disfavoring diversity jurisdiction animates my views.
Ante at 3. The panel majority made a similar contention. See Rosmer, 263
F.3d at 119, 121. This suggestion is as inaccurate now as it was then. In
fact, as a member of the Federal Courts Study Committee, I voted against
the Committee's recommendation to abolish or limit diversity
jurisdiction. See Report of the Federal Courts Study Committee at 42-43
(April 2, 1990). My panel dissent and vote to rehear this case reflect no
distaste for diversity jurisdiction. On the contrary, my views in this
case simply evidence the recognition that as a judge I must follow
congressionally enacted statutory language, regardless of personal
preference.

Judge Luttig joins in this dissent.



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