1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-19-1995

Lyon v Whisman

Precedential or Non-Precedential:

Docket 94-7190

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Recommended Citation

"Lyon v Whisman" (1995). 1995 Decisions. Paper 14.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/14
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 Nos. 94-7190 and 94-7283 

 

 PATRICIA A. LYON 

v. 

 JAMES A. WHISMAN; Whisman & Associates, P.A., 

 Appellants

 

 PATRICIA A. LYON 

v. 

 JAMES A. WHISMAN; 

 WHISMAN & ASSOCIATES, P.A. 

 James A. Whisman, Jr. 

 Whisman & Associates, P.A., 

 Appellants

 

 On Appeal from the United States District Court 

 for the District of Delaware 

 (Civil Action No. 91-289) 

 

 Argued November 1, 1994 

 BEFORE: GREENBERG and McKEE, Circuit Judges, 

 and POLLAK, District Judge* 

 (Filed: January 19, 1995) 

 ______________ 

 Barry M. Willoughby (argued) 

 Bhavana Sontakay 

 Young, Conaway, Stargatt 

 & Taylor 

 Rodney Square North, 11th Floor 

 

 
* Honorable Louis H. Pollak, Senior United States District Judge 

for the Eastern District of Pennsylvania, sitting by 

designation. 

 P. O. Box 391 

 Wilmington, DE 19899-0391 

 Attorneys for Appellants

 Fredric J. Gross (argued) 

 7 East Kings Highway 

 Mount Ephraim, NJ 08059 

 Attorney for Appellee

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 I. Introduction

 Patricia A. Lyon sued her employer, Whisman & 

Associates, an accounting firm which is a Delaware corporation, 

and its president James A. Whisman, in the United States District 

Court for the District of Delaware, charging that they failed to 

pay her overtime wages as required by the Fair Labor Standards 

Act ("FLSA"), 29 U.S.C. § 207(a). As a matter of convenience we 

will refer to both defendants as Whisman. Lyon's complaint also 

included Delaware contract and tort claims charging that Whisman 

failed to pay her a promised bonus on time or in full. At trial 

Lyon prevailed on all three grounds. Whisman then appealed, 

challenging only the judgment on the tort claim. We must vacate 

the judgments on both of the state law claims, however, because 

the claims did not share a "common nucleus of operative fact" 

with the FLSA claim, and thus the district court lacked subject 
matter jurisdiction over them supplemental to its federal 

question jurisdiction over the FLSA claim.1

 We set forth the facts and the aspects of the 

procedural history necessary for resolution of the jurisdictional 

issue.2 Lyon began working as a bookkeeper for Whisman in 

January 1988 on an at-will basis for hourly wages. Lyon and 

Whisman soon became embroiled in a dispute over a bonus that 

Whisman promised to pay Lyon at the end of 1988; by 1989 Lyon 

planned to find a new job. Whisman, however, threatened to 

rescind the bonus if Lyon left its employment. Although Whisman 

eventually did pay Lyon a bonus, she charges that the payment was 

late and was for less than the promised amount. 

 After Lyon left Whisman's employment she filed a threecount complaint alleging that it had 

 (1) violated the FLSA, 29 U.S.C. § 207(a), 

by failing to pay overtime wages; 

 (2) violated Delaware contract law by paying 

a bonus smaller than promised; and 

 (3) violated Delaware tort law by 

threatening to withhold a vested bonus 

if she left its employ. 

 

1. Since "the initial notice of appeal invokes [appellate] 

jurisdiction over the whole case," we properly may consider the 

propriety of the state contract judgment despite the fact that 

Whisman appealed only from the tort judgment. United States v. 

Tabor Court Realty Corp., 943 F.2d 335, 344 (3d Cir. 1991), cert. 

denied, 112 S.Ct. 1167 (1992). 

2. Because of procedural concerns which we need not recount, 

Whisman filed a notice of appeal and amended notices of appeal in 

a successful effort to ensure that we would have appellate 

jurisdiction. We have consolidated the appeals. 
The district court had federal question jurisdiction over Lyon's 

FLSA claim under 28 U.S.C. § 1331, and Lyon asserted that it had 

"pendent" federal jurisdiction over the state law claims in 

counts two and three. Neither the district court nor Whisman 

questioned this assertion of pendent jurisdiction which, in 

accordance with 28 U.S.C. § 1367, we usually will call 

supplemental jurisdiction. Since the district court did not have 

diversity jurisdiction, it could entertain the state-law claims 

only by exercising supplemental jurisdiction. 

 At trial Lyon won on all three counts. She recovered 

$731.20 on the contract claim and $5,000 in compensatory damages 

and $20,000 in punitive damages on the tort claim.3 We cannot 

ascertain what she recovered on the FLSA claim as the docket 

sheets do not reflect the amount and the parties make no 

reference to it in their briefs. Whisman appealed only from the 

judgment on count three, the Delaware law tort claim. We have 

jurisdiction pursuant to 28 U.S.C. § 1291. 

 II. Discussion

 Although neither the parties nor the district court 

questioned the court's supplemental jurisdiction over Lyon's 

state law contract and tort claims, we inquire into that 

jurisdiction on our own initiative. See Bender v. Williamsport 

Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331 (1986). 

 

3. The punitive damages verdict was for $75,000 but Lyon 

accepted a remittitur reducing the damages to $20,000. 
Consequently following oral argument we directed the parties to 

file briefs on this point and they have done so. 

 A. The Constitutional Test

 Congress has authorized district courts to exercise 

jurisdiction supplemental to their federal question jurisdiction 

in 28 U.S.C. § 1367, which states: 

 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. 

 In Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d 

Cir. 1991), we treated section 1367 as codifying the 

jurisdictional standard established in United Mine Workers v. 

Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966). A leading treatise 

concurs: "[Section 1367] incorporates the constitutional 

analysis of the Gibbs case." 13B Charles A. Wright et al., 

Federal Practice & Procedure § 3567.1 (supp. 1994), citing, inter

alia, Soniform.

4 Gibbs laid down three requirements for 

 

4. Section 1367(c) may have modified the discretionary arm of 

the Gibbs decision, under which a district court may dismiss a 

supplemental claim notwithstanding that it has the constitutional 

power to entertain the claim. See LaSorella v. Penrose St. 

Francis Healthcare Sys., 818 F. Supp. 1413 (D. Colo. 1993). 

Here, however, we are concerned with the district court's power

to hear the state law claims under § 1367(a), and all authority 

indicates that Gibbs continues to control the constitutional 

dimension of this jurisdictional determination. 
supplemental jurisdiction. First, "[t]he federal claim must have 

substance sufficient to confer subject matter jurisdiction on the 

court." Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. Lyon's FLSA 

claim satisfies this standard. 

 The other two requirements before federal courts may 

exercise supplemental jurisdiction to hear state law claims are: 

 [1] The state and federal claims must derive 

from a common nucleus of operative facts. 

[2] But if, considered without regard to 

their federal or state character, a 

plaintiff's claims are such that he would 

ordinarily be expected to try them all in one 

judicial proceeding, then, assuming 

substantiality of the federal issues, there 

is power in federal courts to hear the whole. 

Id. Despite the ambiguity of the language connecting [1] the 

"nexus" requirement with [2] the "one proceeding" standard, all 

judicial authority finds that they are cumulative: state claims 

must satisfy both before a district court may exercise 

supplemental jurisdiction. 13B Charles A. Wright et al., Federal 

Practice & Procedure § 3567.1 (1984 & supp. 1994), citing

Almenares v. Wyman, 453 F.2d 1075, 1083 (2d Cir. 1971), cert.

denied, 405 U.S. 944, 92 S.Ct. 962 (1972); Beverly Hills Nat. 

Bank & Trust Co. v. Compania De Navegacione Almirante S.A., 437 

(..continued) 

 We do observe, however, that it is possible that even 

if the district court had the power to hear the supplemental 

claims, it abused its discretion in doing so. Section 1367(c), 

inter alia, counsels against the exercise of jurisdiction when 

"the claim raises a novel or complex issue of State law," and 

when "the [state] claim substantially predominates over the 

[federal] claims . . . ." The tort claim in this suit is both 

novel and complex, and it seems to have predominated at the 

trial. 
F.2d 301, 306 (9th Cir.), cert. denied, 402 U.S. 996, 91 S.Ct. 

2173 (1971). Because we find that there was an insufficient 

factual nexus between the federal and state claims to establish a 

common nucleus of operative facts, we will not consider the "one 

proceeding" arm of Gibbs. 

 B. The Case-Specific Nature of the Inquiry

 The test for a "common nucleus of operative facts" is 

not self-evident. Indeed, "[i]n trying to set out standards for 

supplemental jurisdiction and to apply them consistently, we 

observe that, like unhappy families, no two cases of supplemental 

jurisdiction are exactly alike." Nanavati v. Burdette Tomlin 

Memorial Hosp., 857 F.2d 96, 105 (3d Cir. 1988), cert. denied, 

489 U.S. 1078, 109 S.Ct. 1528 (1989). 

 We can illustrate the fact-sensitive nature of 

supplemental jurisdiction determinations by contrasting our 

treatment of state defamation claims in Nanavati with our 

treatment of similar claims in PAAC v. Rizzo, 502 F.2d 306 (3d 

Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780 (1975). In 

Nanavati, we found that the district court had the power to 

adjudicate a slander claim asserted by an antitrust defendant, 

noting that "a critical background fact (the enmity between the 

two physicians) is common to all claims." Nanavati, 857 F.2d at 

105. We concluded that the alleged slanders naturally would 

become part of the antitrust trial since the slander victim might 

use the slanderer's allegedly wrongful behavior to justify the 

victim's conduct which the other party contended was actionable 
under the antitrust laws. Id. at 105-06. In PAAC, however, we 

ruled that the district court lacked jurisdiction over a state 

defamation claim in a suit brought under the Economic Opportunity 

Act charging the defendant with unlawfully interfering with the 

agency established under that law. In PAAC we recited the 

operative language of Gibbs and found that the state claims were 

not related sufficiently to the federal claim to permit the 

exercise of pendent jurisdiction. 

 The line that separates Nanavati and PAAC is Article 

III of the Constitution. Both cases fall near the line; one is 

on one side, the other is on the other side. In most instances 

the question whether Article III is satisfied is not that close. 

For example, when the same acts violate parallel federal and 

state laws, the common nucleus of operative facts is obvious and 

federal courts routinely exercise supplemental jurisdiction over 

the state law claims. See, e.g., Pueblo Int'l, Inc. v. De 

Cardona, 725 F.2d 823, 826 (1st Cir. 1984) (finding jurisdiction 

over claims under Puerto Rico constitution, civil rights laws, 

and antitrust laws where federal jurisdiction was established 

under parallel laws, observing that "[t]he facts necessary to 

prove a violation of one are practically the same as those needed 

to prove a violation of the other"). 

 Thus, district courts will exercise supplemental 

jurisdiction if the federal and state claims "are merely 

alternative theories of recovery based on the same acts," Lentino 

v. Fringe Employee Plans, Inc., 611 F.2d 474, 479 (3d Cir. 1979). 

In Lentino, for instance, we recognized that there was federal 
jurisdiction over a state legal malpractice claim joined with an 

ERISA claim because the alleged malpractice involved precisely 

the same acts that the plaintiffs charged constituted a breach of 

fiduciary duties under ERISA. In White v. County of Newberry, 

985 F.2d 168 (4th Cir. 1993), landowners sued the county for 

"response costs" under CERCLA and for inverse condemnation, 

claiming that the county's discharge of toxic waste into 

groundwater and wells effectively took their property. In 

sustaining the exercise of supplemental jurisdiction over the 

state law inverse condemnation claim, the court said that "[b]oth 

claims share the common element of showing that the County 

engaged in an act  a release [CERCLA language] or an 

affirmative, positive, aggressive act [South Carolina inverse 

condemnation language]  that in this case would be the dumping 

or disposal of [a toxin] in a manner that caused contamination 

. . . ." Id. at 172. Two areas in which the federal courts 

quite commonly exercise supplemental jurisdiction based on 

"alternative theories of recovery based on the same acts" are 

state fraud claims in securities cases5 and state assault claims 

in civil rights suits charging police abuses.6

 

5. See Klaus v. Hi-Shear Corp., 528 F.2d 225 (9th Cir. 1975); 

Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.) cert. denied, 400 

U.S. 852, 91 S.Ct. (1970); First Interregional Equity Corp. v. 

Haughton, 805 F. Supp. 196 (S.D.N.Y. 1992); In re Storage 

Technology Corp. Sec. Litig., 804 F. Supp. 1368 (D. Colo. 1992); 

Bowman v. Hartig, 334 F. Supp. 1323 (S.D.N.Y. 1971). 

6. See Chudzik v. City of Wilmington, 809 F. Supp. 1142 (D. Del. 

1992); Stewart v. Roe, 776 F. Supp. 1304 (N.D. Ill. 1991). 
 On the other hand, we have refused to exercise 

supplemental jurisdiction over state claims totally unrelated to 

a cause of action under federal law. For instance, in Local No. 

1 (ACA) v. International Bhd. of Teamsters, 614 F.2d 846 (3d Cir. 

1980), we found the district court powerless to try a state-law 

salary dispute when federal jurisdiction arose from a union 

merger dispute actionable under the Labor Management Relations 

Act ("LMRA"). We reasoned that "the merger and salary claims are 

factually distinct and do not meet the test enunciated in United 

Mine Workers v. Gibbs . . . . [The two are] not derived 'from a 

common nucleus of operative facts.'" Id. at 851-52. 

 As might be expected there are closer cases than those 

we have described. Furthermore, the courts have not been 

consistent in defining the nexus between the federal and state 

claims necessary to support supplemental jurisdiction in these 

closer cases. Thus, some courts have stated that even a "loose" 

nexus is enough. Frye v. Pioneer Logging Machinery, Inc., 555 F. 

Supp. 730, 732 (D.S.C. 1983); Ritter v. Colorado Interstate Gas 

Co., 593 F. Supp. 1279, 1281 (D. Colo. 1984). But at least one 

court strongly and explicitly has rejected this loose nexus test, 

finding that it expands judicial power beyond the limits set by 

Article III of the Constitution. Mason v. Richmond Motor Co., 

625 F. Supp. 883, 886 (D. Va. 1986), aff'd, 825 F.2d 407 (4th 

Cir. 1987) (table). Numerous other decisions implicitly reject 

the loose nexus test.7 Here we see no need to define how close 

 

7. Sanders v. Duke Univ., 538 F. Supp. 1143, 1147-48 (M.D.N.C. 

1982); Klupt v. Blue Island Fire Dep't, 489 F. Supp. 195, 197-98 
the nexus between the federal and state claims must be to support 

the exercise of supplemental jurisdiction for, as we will 

demonstrate, under any standard the nexus between the federal and 

state claims in this case is inadequate for that purpose. 

 C. Implications of the Employer/Employee Nexus

 Congress has the power to limit the jurisdiction of the 

inferior federal courts. See Lauf v. E.G. Shinner & Co., 303 

U.S. 323, 330, 58 S.Ct. 578, 582 (1938). Thus, we do not doubt 

but that Congress could have provided expressly that district 

courts could not exercise supplemental jurisdiction in FLSA 

cases. The statute, however, does not mention the scope of 

supplemental jurisdiction which a court should exercise. Thus, 

we assume in this section that Congress wished a court in an FLSA 

action to exercise supplemental jurisdiction to the limit 

permitted by Article III of the Constitution.8 Even under such 

an assumption, we find that there is an insufficient nexus 

(..continued) 

(N.D. Ill. 1980); Madery v. International Sound Technicians, 

Local 695, 79 F.R.D. 154, 156-57 (C.D. Cal. 1978). 

8. Under one construction of section 1367, it is possible to 

argue that Congress mandated such an assumption. By using the 

word "shall" in section 1367(a), the argument goes, Congress 

created a default rule that, absent specific language to the 

contrary, federal district courts should exercise supplemental 

jurisdiction to the maximum extent permitted under Article III 

(subject to the district court's discretion, delineated in 

section 1367(c)). Gibbs contained no such presumption, so this 

argument would bring into question our assumption in Sinclair v. 

Soniform, supra, that section 1367 merely codified the 

constitutional arm of the Gibbs decision. 
between Lyon's federal FLSA claim and her Delaware claims to 

justify supplemental jurisdiction over the latter. 

 The only link between Lyon's FLSA and state law claims 

is the general employer-employee relationship between the 

parties. In Prakash v. American Univ., 727 F.2d 1174 (D.C. Cir. 

1984), the court seemingly found such a relationship sufficient 

to confer supplemental jurisdiction over state claims. In 

Prakash a terminated professor sued his former employer, 

asserting FLSA claims as well as state law claims for breach of 

contract, interference with contractual relations, conversion, 

deceit, and defamation. In finding that the district court had 

jurisdiction over the state law claims, the court of appeals said 

that "[t]he federal and nonfederal claims [plaintiff] advances 

'derive from a common nucleus of operative facts'  [the 

plaintiff's] contract dispute with the university . . . ." Id.

at 1183. 

 Arguably Prakash is factually distinguishable from this 

case. Fairly read, however, we believe that Prakash stands for 

the proposition that FLSA plaintiffs can try all state law 

contract claims against their employers in a federal proceeding, 

as the employment relationship alone provides a factual nexus 

sufficient to confer supplemental jurisdiction. 

 Yet there is virtually no support for this broad 

reading of the reach of Article III and of Gibbs.

9 In Hales v. 

 

9. We note that even under the opinion of the Prakash court it 

might be found that the district court lacked jurisdiction over 

Lyon's state tort claim, inasmuch as the Prakash court predicated 

its finding that there was federal jurisdiction on the nexus 
Winn-Dixie Stores, Inc., 500 F.2d 836 (4th Cir. 1974), the court 

ruled that it could not entertain a state-law claim for failure 

to make payments from a profit-sharing plan despite the factual 

link to a federal claim under the Welfare and Pension Plans 

Disclosure Act, 29 U.S.C. § 301 et seq. (repealed), charging that 

a plan administrator failed to provide statutorily required 

information. The factual nexus in Winn-Dixie, where both claims 

revolved around a specific area of employer-employee relations, 

presents stronger grounds for jurisdiction than cases based 

solely on the general employment relationship. Nonetheless, the 

court found that: 

 [t]he record establishes beyond doubt that 

the [two counts] do not grow out of a 'common 

nucleus of operative facts' [citing Gibbs] 

. . . . While plaintiffs may have sought 

[the federally mandated] information in order 

to consider and/or assert their [state law] 

claims, their causes of action under both 

Counts I and II are separately maintainable 

and determinable without any reference to the 

facts alleged or contentions stated in or 

with regard to the other count. Id. at 847-

48. 

 District courts have resisted expanding supplemental 

jurisdiction based merely on an employment contract in a variety 

of federal statutory settings. Thus, in both Nicol v. 

Imagematrix, Inc., 767 F. Supp. 744 (E.D. Va. 1991), and Benton 

(..continued) 

between the federal and state claims created by the employment 

relationship. Nevertheless, because we find the Prakash decision 

unconvincing, we do not analyze the difference between 

supplemental jurisdiction based on the nature of the claim, be it 

tort or contract. In both cases, we question the existence of a 

sufficient factual nexus to confer jurisdiction. 
v. Kroger Co., 635 F. Supp. 56 (S.D. Tex. 1986), the courts 

refused to permit plaintiffs to use Title VII discrimination 

suits, combined with their status as employees, to bootstrap 

state claims into federal court. In declining to entertain state 

contract and fraud claims in a sexual discrimination suit, Nicol

pointedly noted that the sole common fact between the state and 

federal claims was the employment relationship. Nicol, 767 F. 

Supp. at 747. In Benton, the plaintiff contended that her 

employer fired her either as an act of sexual discrimination or 

in retaliation for her having filed a worker's compensation 

claim. The court refused to consider the state law retaliation 

claim, finding that "[a]lleged incidents of sexual harassment or 

gender bias were entirely separate from the circumstances 

surrounding plaintiff's back injury. These separate events can 

hardly be grouped as the 'common nucleus of operative facts . 

. . .'" Benton, 635 F. Supp. at 59. 

 District courts similarly have found that they did not 

have supplemental jurisdiction to entertain a variety of state 

claims in age discrimination cases. In Mason v. Richmond Motor 

Co. the court concluded it could not exercise supplemental 

jurisdiction over a state law breach of contract claim (based on 

an oral promise that the defendant would never fire the 

plaintiff) in an ADEA wrongful discharge suit. The court, 

applying Gibbs, found that "[o]nly one fact is common to both the 

federal and state claims; and that is that plaintiff was fired by 

his employer." 625 F. Supp. at 888. In Robinson v. Sizes 

Unlimited, Inc., 685 F. Supp. 442 (D.N.J. 1988), another ADEA 
case, the court exercised supplemental jurisdiction over state 

age discrimination claims, but concluded that it could not 

entertain a state claim predicated on discrimination against a 

plaintiff because of a handicap. 

 We find these precedents compelling. Lyon's FLSA claim 

involved very narrow, well-defined factual issues about hours 

worked during particular weeks. The facts relevant to her state 

law contract and tort claims, which involved Whisman's alleged 

underpayment of a bonus and its refusal to pay the bonus if Lyon 

started looking for another job, were quite distinct. In these 

circumstances it is clear that there is so little overlap between 

the evidence relevant to the FLSA and state claims, that there is 

no "common nucleus of operative fact" justifying supplemental 

jurisdiction over the state law claims. In fact, it would be 

charitable to characterize the relationship of the federal and 

state claims as involving even a "loose" nexus. Thus, Article 

III bars federal jurisdiction. 

 D. Congressional Intent Under the FLSA

 We have assumed up to this point that Congress intended 

district courts in FLSA actions to exercise supplemental 

jurisdiction subject only to the limits of Article III; even so, 

we have concluded that the district court did not have the power 

to hear Lyon's contract and tort claims. In addition, we 

question whether Congress intended courts in FLSA actions have 

such broad jurisdiction. In its "declaration of policy" for the 

FLSA, Congress found that existence of "labor conditions 
detrimental to the maintenance of the minimum standard of living 

necessary for health, efficiency, and general well-being of 

workers" caused harm to interstate commerce. 29 U.S.C. § 202. 

Accordingly, its "declared policy" under the FLSA was "to correct 

and as rapidly as practicable to eliminate [these] conditions." 

Id.

 The Supreme Court has stated that "[t]he central aim of 

the [FLSA] was to achieve . . . certain minimum labor standards." 

Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292, 80 

S.Ct. 332, 335 (1960). The substantive sections of the FLSA, 

narrowly focusing on minimum wage rates and maximum working 

hours, bear out its limited purposes. Accordingly, we find no 

indication that Congress passed the FLSA with the expectation 

that it was authorizing federal courts to exercise far-reaching 

jurisdiction over state-law disputes arising from employment 

relationships. This restrained view of the scope of federal 

jurisdiction is consistent with the Supreme Court's statement 

that "[i]n the Fair Labor Standards Act, Congress did not intend 

that the regulation of hours and wages should extend to the 

furthest reaches of federal authority." McLeod v. Threlkeld, 319 

U.S. 491, 493, 63 S.Ct. 1248, 1249 (1943). 

 We do not mean to imply that a district court never may 

exercise supplemental jurisdiction over state claims in an FLSA 

action. For example, an employee seeking to enforce an 

employment contract granting hourly wages in excess of the 

(statutorily required) time and a half probably could assert her 

state law contract claim on a supplemental jurisdictional basis 
along with her FLSA claim in a district court, since the 

"operative facts" in the two claims would be identical. But 

still, when a court exercises federal jurisdiction pursuant to a 

rather narrow and specialized federal statute it should be 

circumspect when determining the scope of its supplemental 

jurisdiction. Accordingly, Congressional intent may provide a 

second, non-constitutional ground for finding that the district 

court did not have jurisdiction over Lyon's state law claims.10

 III. Conclusion

 Because we find that the district court lacked subject 

matter jurisdiction over Lyon's state law contract and tort 

claims, we will vacate its judgments on those two counts and 

remand the matter with instructions to dismiss those claims 

without prejudice. Of course, the district court did have 

jurisdiction over Lyon's FLSA claim, and our decision does not 

disturb the judgment on that count. The parties will bear their 

own costs on this appeal. 

 

10. While our result may seem harsh as this case was tried 

without jurisdictional objection in the district court, we point 

out that in all likelihood Lyon will be able to file her state 

law claims in the Delaware state courts without being barred by 

the statute of limitations. See Frombach v. Gilbert Assocs., 

Inc., 236 A.2d 363 (Del. 1967); Houmet Corp. v. City of 

Wilmington, 285 A.2d 423 (Del. Super. Ct. 1971). However, our 

conclusion is not dependent on that belief.