F I L E D

United States Court of Appeals

Tenth Circuit

NOV 13 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY LEONHARDT, DAN

LAURSEN, and RICK RODRIQUEZ,

RODRIQUEZ FARMS, INC.,

Plaintiffs - Appellants,

v. No. 97-8078

WESTERN SUGAR COMPANY, a

corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. NO. 97-CV-46-D)

Michael J. Heaphy (John M. Cogswell on the briefs), John M. Cogswell Law

Office, Buena Vista, Colorado, for Appellants.

Marc D. Flink, Baker & Hostetler, Denver, Colorado (Todd L. Lundy and L.

Andrew Cooper, Baker & Hostetler, Denver, Colorado; W. Perry Dray and

Gregory C. Dyekman, Cheyenne, Wyoming, with him on the briefs), for

Appellees.

Before PORFILIO , McWILLIAMS , and ANDERSON , Circuit Judges.

ANDERSON , Circuit Judge.
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Plaintiffs, Wyoming sugar beet farmers, appeal the dismissal of their class

action against defendant, Western Sugar Company. Plaintiffs’ federal cause of

action, alleging a violation of the Agricultural Fair Practices Act (“AFPA”), was

dismissed for failure to state a claim. Because not all members of the class

satisfied the $75,000 jurisdictional amount required under 28 U.S.C. § 1332 for a

diversity action, the court declined to exercise supplemental jurisdiction over

plaintiffs’ state law claims and dismissed them without prejudice. This appeal

followed. We affirm, holding as follows on the central issues presented: 1) the

district court correctly held that plaintiffs’ complaint failed to state a claim under

AFPA; and 2) because only one plaintiff’s claim satisfied the $75,000

jurisdictional amount, and because 28 U.S.C. § 1367 has not overturned the

historical rule under 28 U.S.C. § 1332 that plaintiffs in a diversity class action

must each satisfy that jurisdictional amount, the district court correctly dismissed

plaintiffs’ state law claims without prejudice.

BACKGROUND

The plaintiffs are Wyoming farmers who grow sugar beets under contract

for Western Sugar Company, a Colorado corporation. Each farmer had four

separate contracts with Western Sugar covering crop years 1985-87, 1988-90,

1991-92, and 1993-95. In accordance with those contracts, the Wyoming farmers
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delivered beets to Western Sugar’s Lovell facility, where they were put in a pile

and weighed. Because sugar beets can lose their sugar over time, a phenomenon

referred to as “pile loss,” Western Sugar took samples from and measured the

sugar content of each grower’s beets both at the time they were delivered and at

the time they were processed. The latter samples, taken from sliced sugar beets at

the beginning of the manufacturing process, are referred to as “factory cossette

samples.” The difference in sugar content between the samples taken at the time

of delivery and the factory cossette samples is referred to as the “polarity

difference,” or “PD.” The PD was used to calculate payments under the contracts,

which were based on the market price of sugar, the weight of beets delivered, and

the sugar content of each grower’s beets.

 Plaintiffs contend that the manufacturing process used at the Lovell

facility permitted too many adulterants, such as water and soil, to adhere to the

sliced beets that were used for the factory cossette samples. The presence of

these adulterants lowered the sugar content measurement, thereby increasing the

PD. This, in turn, lowered the payments the growers received under their

contracts. 

Based on this contention, the plaintiffs brought suit on behalf of themselves

and all persons who grew sugar beets under contract for Western Sugar between

1985 and 1995. The complaint asserted federal claims under the Sherman Act and
1The plaintiffs agreed to the dismissal of their Sherman Act claim.

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AFPA, as well as five state law claims, alleging breach of contract, breach of an

implied duty of good faith and fair dealing, breach of fiduciary duty, promissory

estoppel, and a violation of the Wyoming Weights and Measurers Act, Wyo. Stat.

Ann. §§ 40-10-117 to -136 and its predecessor, Wyo. Stat. Ann. §§ 40-10-101 to 

-116 (repealed 1993). At the time of the district court ruling at issue on appeal,

the only claims remaining in the suit were a single federal claim under AFPA and

the state law claims. 1 The plaintiffs made no allegations that their freedom to join

or not join any association or cooperative was in any way hindered by Western

Sugar.

The district court dismissed the AFPA claim for failure to state a claim. 

The court determined that no plaintiff’s remaining state claims met the $75,000

amount in controversy necessary for the exercise of diversity jurisdiction under 28

U.S.C. § 1332. Before the court, however, was a pending motion to amend the

complaint to add a prayer for punitive damages to one of the state claims. If

granted, this amendment would increase the potential recoverable damages of

plaintiff Rodriquez Farms, Inc. to $75,000 or more. The court denied the motion

to amend as futile, reasoning that, even if Rodriquez Farms could meet the

jurisdictional limit, the court could not exercise supplemental jurisdiction over the
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claims of the remaining plaintiffs. Therefore, the court dismissed plaintiffs’ state

law claims without prejudice, and this appeal followed.

DISCUSSION

1. Appellate Jurisdiction Over Rodriquez Farms

As an initial matter, we must consider whether we have jurisdiction over

the claims of Rodriquez Farms, Inc. Federal Rule of Appellate Procedure 3(c)

provides that “[a] notice of appeal must specify the party or parties taking the

appeal by naming each appellant in either the caption or the body of the notice of

appeal.” The caption of the notice of appeal here contains the names of only the

three individual named plaintiffs, and not the name of Rodriquez Farms, another

named plaintiff below. Both the docketing statement and the caption of

appellants’ opening brief also omit Rodriquez Farms as a named appellant. The

body of the notice of appeal, however, states that “[n]otice is hereby given that all

of the plaintiffs in the above named case hereby appeal,” and the notice of appeal

is signed by John M. Cogswell, Esq., who represented all four plaintiffs in the

district court.

Plaintiffs contend that Rodriquez Farms is properly an appellant under Rule

3(c), and they move to amend the caption to reflect the inclusion of Rodriquez

Farms. Rule 3(c) provides that “[a]n attorney representing more than one party
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may fulfill th[e] requirement [to specify the parties taking the appeal] by

describing those parties with such terms as ‘all plaintiffs.’” Such a description

will be sufficient if “it is objectively clear that a party intended to appeal.” Fed.

R. App. P. 3(c) advisory committee’s note (1993). We agree with plaintiffs that it

is objectively clear that Rodriquez Farms intended to appeal the district court’s

order, especially in light of the fact that it is the only plaintiff capable of meeting

the $75,000 amount in controversy necessary for diversity jurisdiction. We turn,

then, to the merits of plaintiffs’ appeal.

2. AFPA Claim

In 1968, Congress enacted AFPA, 7 U.S.C. §§ 2301-2306, to “protect[] the

right of farmers and other producers of agricultural commodities to join

cooperative associations through which to market their products.” Michigan

Canners & Freezers Ass’n v. Agricultural Mktg. & Bargaining Bd. , 467 U.S. 461,

464 (1984) (footnote omitted).

Although the Act’s principal purpose is to protect individual

producers from interference by processors when deciding whether to

belong to a producers’ association, the Act also protects the producer

from coercion by associations of producers. The AFPA thus provides

that it is unlawful for either a processor or a producers’ association

to engage in practices that interfere with a producer’s freedom to

choose whether to bring his products to market himself or to sell

them through a producers’ cooperative association.

Id.
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Among the Act’s prohibitions is the following: “It shall be unlawful for

any handler knowingly to [make] or permit any employee or agent . . . [t]o make

false reports about the finances, management, or activities of associations of

producers or handlers.” 7 U.S.C. § 2303(e). The complaint here alleged that

Western Sugar violated the prohibition contained in § 2303(e) by “conduct[ing]

cossette tests on the 1985-1995 crops contrary to the standards established by the

U.S.D.A. and report[ing] to the growers false results and PD determinations.” 

Appellant’s App. at 48 (Complaint, ¶ 73(a)).

The district court ruled that plaintiffs’ allegations failed to state a claim

under AFPA on three grounds. First, the court stated that a false cossette sample

report did not fall within the scope of reports about the “finances, management, or

activities of associations of producers or handlers” under § 2303(e). Second, the

court said that, “[a]bsent the conclusory statement under Paragraph 73(a),” the

complaint did not contend that the cossette sample test results were false. 

Appellant’s App. at 153 (Telephonic Oral Ruling Transcript). Rather, the court

noted, the complaint alleged that adulterants in the cossette samples resulted in

higher PDs. Finally, the court concluded that, even if Western Sugar issued false

reports about its finances, management or activities, it did not do so “in an

attempt to coerce or influence a producer to join or not to join an association.” 

Id.
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“We review de novo the district court’s dismissal for failure to state a claim

upon which relief may be granted.” Dill v. City of Edmond , 155 F.3d 1193, 1201

(10th Cir. 1998). Such dismissal “is inappropriate unless [p]laintiff can prove no

set of facts in support of his claims that would entitle him to relief.” Id.

Furthermore, we must “accept all factual allegations in the complaint as true.” Id.

Plaintiffs and defendants present dueling canons of statutory construction 

to support their respective interpretations of AFPA. Because some of the

arguments relate to § 2303(e) in context, we set out the entire section:

It shall be unlawful for any handler knowingly to engage or

permit any employee or agent to engage in the following practices:

(a) To coerce any producer in the exercise of his right to join

and belong to or to refrain from joining or belonging to an

association of producers, or to refuse to deal with any producer

because of the exercise of his right to join and belong to such an

association; or

(b) To discriminate against any producer with respect to price,

quantity, quality, or other terms of purchase, acquisition, or other

handling of agricultural products because of his membership in or

contract with an association of producers; or

(c) To coerce or intimidate any producer to enter into,

maintain, breach, cancel, or terminate a membership agreement or

marketing contract with an association of producers or a contract

with a handler; or

(d) To pay or loan money, give any thing of value, or offer any

other inducement or reward to a producer for refusing to or ceasing

to belong to an association of producers; or
2

“Handler” also includes within its definition “associations of producers.” 

7 U.S.C. § 2302(a); Michigan Canners, 467 U.S. at 465 n.3. 

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(e) To make false reports about the finances, management, or

activities of associations of producers or handlers; or

(f) To conspire, combine, agree, or arrange with any other

person to do, or aid or abet the doing of, any act made unlawful by

this chapter. 

7 U.S.C. § 2303. Under the definitions of AFPA, plaintiffs are producers and

Western Sugar is a handler. 2

“‘In interpreting statutes, we begin with the relevant language.’” Southern

Ute Indian Tribe v. Amoco Prod. Co. , 151 F.3d 1251, 1257 (10th Cir. 1998) (en

banc) (quoting Aulston v. United States , 915 F.2d 584, 589 (10th Cir. 1990)). If

congressional will “‘has been expressed in reasonably plain terms, “that language

must ordinarily be regarded as conclusive.”’” Id. (quoting Griffin v. Oceanic

Contractors, Inc. , 458 U.S. 564, 570 (1982) (quoting Consumer Prod. Safety

Comm’n v. GTE Sylvania, Inc. , 447 U.S. 102, 108 (1980))). We do not, however,

read specific statutory language in isolation: we “‘must look to the particular

statutory language at issue, as well as the language and design of the statute as a

whole.’” Id. (quoting K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988)).
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A. False reports

We must first determine whether plaintiffs have sufficiently alleged that

Western Sugar made “false reports about the finances, management, or activities

of associations of producers or handlers” under § 2303(e), when they alleged that

Western Sugar “conducted cossette tests on the 1985-1995 crops contrary to the

standards established by the U.S.D.A. and reported to the growers false results

and PD determinations.” Appellant’s App. at 48 (Complaint ¶ 73(a)). The

complaint asserted that Western Sugar “massaged cossette records and tampered

with scales,” Appellant’s App. at 10 (Complaint ¶ 16(c)), and that the cossette

samples it used were adulterated with water and other debris. Plaintiffs then

asserted that those adulterated cossette samples were used to calculate inaccurate

(i.e. falsely high) PD measurements, which Western Sugar, a “handler,” reported

to plaintiffs.

Initially, we note that we could read § 2303(e) to prohibit only false reports

about third parties, not false reports by a handler about its own activities. 

However, it is not clear that such an interpretation is the only permissible one, so

we assume the statute reaches a handler’s false reports about itself. We must then

consider whether Western Sugar’s provision of inaccurate PD measurements to

plaintiffs constituted the making of “false reports” under § 2303(e). To the extent

the PD measurements provided by Western Sugar were based upon faulty or
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incorrect underlying data or materials (the adulterated cossette samples), we agree

that, for purposes of dismissal under Rule 12(b)(6), plaintiffs have sufficiently

alleged a “false report” under § 2303(e).

B. Intent to influence association membership

More problematic is the issue of whether plaintiffs must allege that the

false reports were intended to influence, or were otherwise made in connection

with, the joining or refusal to join an association of producers. As both sides

point out, the other subsections of § 2303 explicitly reference the “right to join”

or “membership in” or “contract with” an association, and make it clear that the

particular prohibited conduct must involve an attempt to influence or coerce such

membership. Thus, § 2303(d) makes it unlawful for a handler “[t]o pay or loan

money, give any thing of value, or offer any other inducement or reward to a

producer for refusing to or ceasing to belong to an association of producers .” 7

U.S.C. § 2303(d) (emphasis added).

Plaintiffs and defendants draw precisely the opposite conclusion from that

fact. Plaintiffs argue that Congress evidently purposely left out any requirement

that the false report be made in connection with membership in an association,

while Western Sugar argues that subsection (e) must be read in the context of the

entire Act which, read as a whole, clearly indicates that Congress intended to
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prohibit only false reports which are designed to have an effect on association

membership.

We agree with Western Sugar that the better view is to read AFPA as a

whole. The declaration of policy for AFPA contains the following:

Because agricultural products are produced by numerous individual

farmers, the marketing and bargaining position of individual farmers

will be adversely affected unless they are free to join together

voluntarily in cooperative organizations as authorized by law. 

Interference with this right is contrary to the public interest and

adversely affects the free and orderly flow of goods in interstate and

foreign commerce.

7 U.S.C. § 2301 (emphasis added). As the Supreme Court has also acknowledged,

AFPA’s “principal purpose is to protect individual producers from interference by

processors when deciding whether to belong to a producers’ association.” 

Michigan Canners , 467 U.S. at 464.

Turning to the specific language of § 2303(e), we consider whether its

meaning is clear, bearing in mind that we read it in its statutory context. Under

§ 2303(e), handlers like Western Sugar are prohibited from making false reports

about the “finances, management, or activities” of either “ associations of

producers ” or “ handlers .” (Emphasis added.) Although the statute does not

explicitly reference influencing decisions regarding membership in such

associations, it is self-evident that creating false reports about “associations of

producers” would influence decisions by producers whether to join such
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associations. Thus, the language prohibiting false reports about associations of

producers, in our view, unambiguously assumes such influence, and Congress

evidently omitted as unnecessary any explicit reference to such influence.

We deal here, however, with alleged false reports by a handler about its

own activities—that is, activities of “handlers” under § 2303(e). While the

statute, on its face, appears to prohibit any such reports (it prohibits false reports

by a handler about “handlers”), regardless of intent or effect on association

membership, the question is whether we must infer in that language what is

clearly inferred in the language addressing false reports about the activities of

“associations of producers,” and what is explicit in the remainder of

§ 2303—namely, that the false reports must be intended to, or have the effect of,

influencing whether to join an association. We hold that we must. To hold

otherwise would be to create a liability under AFPA for false reports about

handlers which is far beyond the liabilities created by the rest of § 2303, and far

beyond the scope of AFPA.

Further, the necessity to infer such intent creates an ambiguity, which 

permits us to examine the legislative history of AFPA. That legislative history

supports our interpretation. Section 2303 is described as containing a

“[p]rohibition of coercion, discrimination, intimidation, bribery, falsehood , and

conspiracy designed to influence a producer’s election as to joining a cooperative
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or otherwise marketing his produce .” S. Rep. No. 90-474, at 1 (1967), reprinted

in 1968 U.S.C.C.A.N. 1867, 1868 (emphasis added). The Senate Report further

stated that the Committee on Agriculture and Forestry “sought language that

would make it completely clear that the prohibited action is prohibited only where

its motivation is interference with the producer’s free choice .” Id. at 5, reprinted

in 1968 U.S.C.C.A.N. at 1872 (emphasis added).

In sum, while read in isolation, § 2303(e) arguably prohibits a handler from

making any false reports about its own activities, without restriction, the section

must be read in context. What is clear from AFPA and § 2303 as a whole, and its

legislative history, is that the evil Congress was attacking was influencing or

pressuring, in a variety of ways, a producer’s free choice whether to join an

association of producers. The prohibition on the making of “false reports” must

therefore apply only to false reports about associations of producers or handlers

which are intended to influence or that have the effect of influencing a producer’s

decision to join an association.

Since plaintiffs’ complaint made no allegation concerning membership in

such an association, we affirm the district court’s dismissal of plaintiffs’ AFPA

claim for failure to state a claim. We turn now to whether the court properly

dismissed without prejudice plaintiffs’ state law claims.
3While Zahn requires each individual plaintiff to satisfy the jurisdictional

amount, the Supreme Court has historically interpreted § 1332 to require only the

named class representatives in a class action to be diverse from the defendants. 

See Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 365-67 (1921). Thus,

individual class members need not be diverse, although they each must meet the

jurisdictional amount in controversy. 

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3. Supplemental Jurisdiction Over State Law Claims

Plaintiffs contend that, even if they have failed to state a federal claim

under AFPA, the district court has diversity jurisdiction over their state law

claims. Pursuant to 28 U.S.C. § 1332(a)(1), “[t]he district courts shall have

original jurisdiction of all civil actions where the matter in controversy exceeds

the sum or value of $75,000, exclusive of interest and costs, and is between

citizens of different States.” The Supreme Court has historically interpreted

§ 1332's “matter in controversy” language to require plaintiffs who have separate

and distinct claims, but unite together in a single suit, to each meet the

jurisdictional amount in controversy. 3

 See Zahn v. International Paper Co. , 414

U.S. 291, 300-01 (1973); Snyder v. Harris , 394 U.S. 332, 335-38 (1969).

Aggregation has been permitted only (1) in cases in which a single

plaintiff seeks to aggregate two or more of his own claims against a

single defendant and (2) in cases in which two or more plaintiffs

unite to enforce a single title or right in which they have a common

and undivided interest.

Snyder , 394 U.S. at 335. In Snyder , the Court refused to reconsider its

longstanding construction of a “matter in controversy,” noting that “Congress has
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. . . consistently amended the amount-in-controversy section and re-enacted the

‘matter-in-controversy’ language without change of its jurisdictional effect

against a background of judicial interpretation that has consistently interpreted

that congressionally enacted phrase as not encompassing the aggregation of

separate and distinct claims.” Id. at 339.

Therefore, under the historical interpretation of § 1332, any plaintiff in a

diversity class action—whether class representative or putative class

member—who does not meet the jurisdictional amount in controversy must be

dismissed from the action, and if no plaintiff can meet the amount in controversy,

the entire class action must be dismissed. See Zahn , 414 U.S. at 300. At issue

here is whether the enactment of 28 U.S.C. § 1367, concerning supplemental

jurisdiction, altered the historical aggregation rules under § 1332 for class

actions.

The record reflects that each of the named plaintiffs and putative class

members has one or more separate and distinct claims against Western Sugar. 

The named plaintiffs conceded in the district court that an “aggregation theory

based upon the ‘common undivided interest and single title’ analysis is unlikely to

apply.” Appellant’s App. at 81. They argue, however, that so long as one class

representative meets the jurisdictional amount in controversy, the plain language
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of 28 U.S.C. § 1367(a) permits the district court to exercise supplemental

jurisdiction over all the other plaintiffs’ claims. 

Section 1367, which was enacted as part of the Judicial Improvements Act

of 1990, provides in pertinent part as follows:

(a) Except as provided in subsections (b) and (c) or as

expressly provided otherwise by Federal statute, 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. Such supplemental jurisdiction shall

include claims that involve the joinder or intervention of additional

parties.

(b) In any civil action of which the district courts have original

jurisdiction founded solely on section 1332 of this title, the district

courts shall not have supplemental jurisdiction under subsection (a)

over claims by plaintiffs against persons made parties under Rule 14,

19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims

by persons proposed to be joined as plaintiffs under Rule 19 of such

rules, or seeking to intervene as plaintiffs under Rule 24 of such

rules, when exercising supplemental jurisdiction over such claims

would be inconsistent with the jurisdictional requirements of section

1332.

Plaintiffs argue that the enactment of § 1367 had the effect of overruling

Zahn ’s requirement that each member of a plaintiff class meet the jurisdictional

amount in controversy. Therefore, they argue, if Rodriquez Farms can meet the

$75,000 jurisdictional amount in controversy, the court can exercise supplemental

jurisdiction over the claims of the other class representatives and putative class
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members, even though none of them can meet the jurisdictional amount in

controversy.

Whether § 1367 permits such an exercise of supplemental jurisdiction in a

class action is a question of first impression for this court. We first examine the

statutory language and decide whether Congress has spoken “‘in reasonably plain

terms.’” Southern Ute , 151 F.3d at 1257 (quoting Griffin , 458 U.S. at 570). If

the statutory language is clear and unambiguous, we normally find that language

conclusive. Id. If the language is ambiguous, however, we may “resort to

legislative history as an aid to interpretation.” United States v. Simmonds , 111

F.3d 737, 742 (10th Cir. 1997). While we have noted that “there is ‘no errorless

test’ for recognizing ambiguity,” Biodiversity Legal Found. v. Babbitt , 146 F.3d

1249, 1254 (10th Cir. 1998) (quoting United States v. Turkette , 452 U.S. 576, 580

(1981)), we have observed that a “split in the circuits is, in itself, evidence of the

ambiguity” of a statutory phrase. State Ins. Fund v. Southern Star Foods, Inc. (In

re Southern Star Foods, Inc. ), 144 F.3d 712, 715 (10th Cir. 1998), petition for

cert. filed , 67 U.S.L.W. 3156 (Aug. 19, 1998) (No. 98-310).

The Fifth Circuit was the first circuit court to directly address the issue

before us. That court held that § 1367 is neither unclear nor ambiguous: “The

statute’s first section vests federal courts with the power to hear supplemental

claims generally, subject to limited exceptions set forth in the statute’s second
4Stromberg was not a class action; it involved two plaintiffs, only one of

whom met the jurisdictional amount in controversy. The Seventh Circuit later

followed Stromberg and Abbott to hold, in a class action, that “[a]t least one

named plaintiff must satisfy the jurisdictional minimum. If he does, the other

named plaintiffs and the unnamed class members can, by virtue of the

supplemental jurisdiction conferred on the federal district courts by 28 U.S.C.

§ 1367, piggyback on that plaintiff’s claim.” In re Brand Name Prescription

Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997), cert. denied, 118 S. Ct.

1178, and cert. denied, 118 S. Ct. 1336, and cert. denied, 118 S. Ct. 1337 (1998).

5See, e.g. Russ v. State Farm Mut. Auto. Co. Ins., 961 F. Supp. 808 (E.D.

(continued...)

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section. Class actions are not among the enumerated exceptions.” Free v. Abbott

Lab. (In Re Abbott Lab. ), 51 F.3d 524, 528 (5th Cir. 1995). While

acknowledging that the omission of class actions from § 1367(b)’s exceptions

“may have been a clerical error,” the court nonetheless held that “the statute is the

sole repository of congressional intent where the statute is clear and does not

demand an absurd result.” Id. at 528-29. After concluding that overruling Zahn

“is not an absurd result,” the court held that § 1367 permitted the district court to

exercise supplemental jurisdiction over class members who did not meet the

amount in controversy requirement. Id. at 529. The Seventh Circuit subsequently

followed Abbott , finding that its rationale had “strong support from the statutory

text.” Stromberg Metal Works, Inc. v. Press Mechanical, Inc. , 77 F.3d 928, 930

(7th Cir. 1996). 4 Thus, two circuits have held that § 1367 overruled Zahn . 

Against that, the majority of district courts addressing the issue have ruled that

§ 1367 did not overrule Zahn .

5

 Commentators and treatises are divided. 6
5

(...continued)

Pa. 1997); Ren-Dan Farms, Inc. v. Monsanto Co., 952 F. Supp. 370, 376 (W.D.

La. 1997); McGowan v. Cadbury Schweppes, PLC, 941 F. Supp. 344, 347-48

(S.D.N.Y. 1996); DeCastro v. AWACS, Inc., 935 F. Supp. 541, 547 (D.N.J.

1996), appeal dismissed, 940 F. Supp. 692 (D.N.J. 1996); Blair v. Source One

Mortgage Servs. Corp., 925 F. Supp. 617, 622-24 (D. Minn. 1996); Snider v.

Stimson Lumber Co., 914 F. Supp. 388, 389-92 (E.D. Cal. 1996). Included

among the district courts finding Zahn not overruled are several from this circuit. 

See Henkel v. ITT Bowest Corp., 872 F. Supp. 872, 875-79 (D. Kan. 1994); Leroy

Cattle Co. v. Fina Oil & Chem. Co., No. 93-1286-MLB,1994 WL 151105 (D.

Kan. 1994); cf. Amundson & Assocs. Art Studio, Ltd. v. National Council on

Compensation Ins. Inc., 977 F. Supp. 1116, 1122-23 (D. Kan. 1997) (refusing to

exercise supplemental jurisdiction over claims of class representatives and other

putative class members where none of class representatives met jurisdictional

amount although many unnamed putative class members did). 

6Compare 5 James Wm. Moore et. al., Moore’s Federal Practice

¶ 23.07[3][c] at 23-47 (3d ed. 1998) (“The conclusion that Zahn remains good law

is ultimately unconvincing . . . .”); and 2 Herbert B. Newberg, Newberg on Class

Actions § 6.11 (“The Act’s probable overruling of Zahn is fully consistent with

the reasoning of the Federal Courts Study Committee on whose recommendation

the Act was adopted.”); with 13 Charles Alan Wright et. al., Federal Practice &

Procedure § 3523.1, at 112 (1998 Supp.) (“Perhaps the most compelling evidence

from the legislative history that Section 1367 was not intended to overrule Zahn is

not so much what is said in the history itself , but rather what is omitted.”). See

also Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1045 n.9 (3d Cir. 1993)

(collecting commentaries). See generally James E. Pfander, Supplemental

Jurisdiction and Section 1367: The Case for Sympathetic Textualism (1998)

(unpublished manuscript, on file with the University of Illinois Law School).

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In determining that nothing in the language of § 1367 limited the broad

grant of authority conferred by § 1367(a) so as to preserve the historical

aggregation rules for class actions under § 1332, the Fifth and Seventh Circuits

focused only on the absence of Rule 23 from the exceptions enumerated in

§ 1367(b). Abbott , 51 F.3d at 527-29. Those exceptions, however, concern only
7The legislative history explains the reason for the exceptions contained in

§ 1367(b) as follows:

In diversity-only actions the district courts may not hear plaintiffs’

supplemental claims when exercising supplemental jurisdiction

would encourage plaintiffs to evade the jurisdictional requirement of

28 U.S.C. § 1332 by the simple expedient of naming initially only

those defendants whose joinder satisfies section 1332's requirements

and later adding claims not within original federal jurisdiction

against other defendants who have intervened or been joined on a

supplemental basis. In accord with case law, the subsection also

prohibits the joinder or intervention of persons a[s] plaintiffs if

adding them is inconsistent with section 1332's requirements.

H.R. Rep. No. 101-734, at 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6875.

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the exercise of supplemental jurisdiction over claims against defendants who are

made parties to a diversity action under certain rules and claims by plaintiffs who

seek to be added to an on-going diversity action. 7

 We are concerned, however,

with whether Congress intended to change the rules about when a plaintiff can

bring an initial diversity-based class action under Rule 23, where the court’s

original jurisdiction is based upon § 1332. The omission of Rule 23 from

§ 1367(b) has no bearing on that question.

In our view, a literal and textually faithful reading of § 1367(a) leads to the

opposite conclusion from that of the Fifth and Seventh Circuits. Section 1367(a)

specifically addresses “any civil action of which the district courts have original

jurisdiction .” (Emphasis added.) It then provides for supplemental jurisdiction

over transactionally related claims. Section 1332 is what confers original
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jurisdiction over diversity cases and it expressly requires that the “matter in

controversy exceed[] the sum or value of $75,000.” While § 1332 does not

expressly refer to class actions, the Supreme Court has noted that periodic

congressional amendment of the diversity statute to alter only the amount in

controversy evidences congressional agreement with the Court’s holding that

“matter in controversy” does “not encompass[] the aggregation of separate and

distinct claims.” Snyder , 394 U.S. at 339. Thus, Congress in § 1367(a) expressly

excepted claims brought under § 1332 and its well-understood definition of

“matter in controversy.” See Pfander, supra , at 20 (“Section 1367(a) appears to

assume that the existing rules of original jurisdiction will continue to apply and

that the grant of supplemental jurisdiction will come into play only after the

plaintiff has submitted claims in a well-pleaded complaint that properly invoke

such original jurisdiction.”).

Furthermore, § 1367(b) itself supports this interpretation of § 1367(a). 

Section 1367(b) sets forth various situations in which a court, sitting in diversity,

cannot exercise supplemental jurisdiction where the exercise of such jurisdiction

“would be inconsistent with the jurisdictional requirements of § 1332.” 28 U.S.C.

§ 1367(b). That very language evidences a concern for preserving the historical

and well-established rules of diversity. The fact that § 1367(b) prohibits the

addition of claims and parties which would destroy diversity supports our
8Even the Fifth and Seventh Circuits acknowledge that the legislative

history suggests Congress did not intend the result those courts reached. They

simply refused to look at clearly contrary legislative history in the face of what

they viewed as clear statutory language.

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interpretation of § 1367(a) as also fully respecting the rules of diversity in cases

invoking the original jurisdiction of the federal courts.

Thus, in our view § 1367(a) and (b) can be read literally, and

unambiguously, to require each plaintiff in a class action diversity case to satisfy

the Zahn definition of “matter in controversy” and to individually meet the

$75,000 requirement. However, we recognize that it is difficult to argue

persuasively that the statute is truly unambiguous when two circuit courts of

appeal have reached the opposite conclusion from us, when a majority of district

courts are in agreement with us (although not all for the same reasons) and when

commentators are divided. We therefore assume that ambiguity in the statute

permits us to examine legislative history. See United States v. Simmonds , 111

F.3d 737, 742 (10th Cir. 1997).

The legislative history of § 1367 supports our interpretation of the statute. 8

The House Report that accompanied the Judicial Improvements Act, the analysis

of which was adopted by the Senate Judiciary Committee, see 136 Cong. Rec.

S17580-81 (daily ed. Oct. 27, 1990), expressly states that § 1367 “is not intended

to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity-only
9There are particularly persuasive reasons to rely upon the committee report

involving § 1367. “Committee reports are the most frequently cited and reliedupon sources of legislative history, and in the Court’s traditional view the most

authoritative source.” William N. Eskridge, Jr., The New Textualism, 37

U.C.L.A. L. Rev. 621, 637 (1990) (footnote omitted). Additionally, both the

Senate and the House agreed on the pertinent language, and the report was

explicit in its intent that § 1367 not overrule Zahn.

Moreover, this is an unusual situation, in that the legislative history so

clearly refutes the textualist analysis of the Fifth and Seventh Circuits. As one

district court has aptly put it:

To retain this case in this court [finding Zahn overruled] is to

say to Congress: “We know what you meant to say, but you didn’t

quite say it. So the message from us in the judicial branch to you in

the legislative branch is ‘Gotcha! And better luck next time.’” Such a

(continued...)

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class actions, as those requirements were interpreted prior to [ Finley v. United

States , 490 U.S. 545 (1989)].” H.R. Rep. No. 101-734, at 29 (1990), reprinted in

1990 U.S.C.C.A.N. 6860, 6875. The House Report then cites Zahn as an example

of the pre- Finley interpretation of the jurisdictional requirements of § 1332 that is

not to be disturbed. Id. & n.17. The House Report also states that the statute

provides that “[i]n diversity cases, the district courts may exercise supplemental

jurisdiction, except when doing so would be inconsistent with the jurisdictional

requirements of the diversity statute.” Id. at 28, reprinted in 1990 U.S.C.C.A.N.

at 6874. Thus, the legislative history indicates that Congress did not intend to

overrule the historical rules prohibiting aggregation of claims, including Zahn ’s

prohibition of such aggregation in diversity class actions. 9
9

(...continued)

message is not required by the separation of powers. Nor is it in

harmony with the fact that Congress and the courts, however

different their respective roles, are parts of a single government.

Russ v. State Farm Mut. Auto. Ins. Co., 961 F. Supp. 808, 820 (E.D. Pa. 1997).

Finally, we simply note that there are a variety of pending bills before

Congress, each of which explicitly states that aggregation shall be permitted in

class actions to determine whether the jurisdictional amount is met. We wonder

why Congress would see the need to be so explicit, if it had already accomplished

that result in § 1367. See, e.g., S. 2083, 105th Cong. § 3; H.R. 3789, 105th Cong.

§ 1.

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We therefore conclude, from both an analysis of the language of § 1367

itself and from its legislative history, that the enactment of § 1367 did not

overrule Zahn ’s holding that each plaintiff in a diversity-based class action must

meet the jurisdictional amount in controversy under § 1332. Accordingly, the

district court correctly held that it could not exercise supplemental jurisdiction

over the claims of those plaintiffs whose claims did not meet the $ 75,000

jurisdictional amount in controversy.

Plaintiffs conceded in the district court that, even if the court allowed them

to amend the complaint, only the claims of Rodriquez Farms would meet the

jurisdictional amount in controversy. Reasoning that plaintiffs desired to proceed

together in a single class action, rather than have Rodriquez Farms litigate its

claims by itself in federal court, the district court denied the motion to amend the

complaint as futile. On appeal, plaintiffs challenge the denial of the motion to
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amend only to the extent that it was based upon the district court’s conclusion that

it could not exercise supplemental jurisdiction under § 1367 in derogation of

§ 1332's historical aggregation rules. Because we have determined that the

district court’s underlying conclusion about supplemental jurisdiction was correct,

we affirm the otherwise unchallenged denial of the motion to amend.

The judgment of the district court is AFFIRMED. Plaintiffs’ motion to

amend the caption to include Rodriquez Farms, Inc. as an appellant is

GRANTED.