PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUISE ROSMER, on behalf of herself 

and as class representative,

Plaintiff-Appellant,  No. 00-2224

v.

PFIZER INCORPORATED,

Defendant-Appellee. 

Filed: 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. 

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 dissent-
ing 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. 

For the Court

/s/ Patricia S. Connor

Clerk

2 ROSMER v. PFIZER
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. 

ROSMER v. PFIZER 3
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 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 manyfold 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

4 ROSMER v. PFIZER
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 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 conROSMER v. PFIZER 5
stitutional 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 SupplementalJurisdiction 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.

6 ROSMER v. PFIZER
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 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 statelaw 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

ROSMER v. PFIZER 7
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 fourfour vote and denying the possibility that the court en banc can reconsider this important case. Because I 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

8 ROSMER v. PFIZER
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.

ROSMER v. PFIZER 9
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 pendentparty 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 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. 

10 ROSMER v. PFIZER
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.1 Such analyt1

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

ROSMER v. PFIZER 11
ical magic, 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 "supplethat 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"). 

12 ROSMER v. PFIZER
mental" 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 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 (requirROSMER v. PFIZER 13
ing "[e]ach plaintiff in a Rule 23(b)(3) class action [to] satisfy the

jurisdictional amount").2

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. 

2The 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. 

14 ROSMER v. PFIZER
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 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 23.3

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 jurisdic3The 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. 

ROSMER v. PFIZER 15
tion 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 of § 1367 unambiguously favors its interpretation,

the panel majority conveniently concludes that Congress, sub silentio,

overruled the seminal Supreme Court decision in Zahn. However,

16 ROSMER v. PFIZER
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 manyfold

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.

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 ComROSMER v. PFIZER 17
mittee, 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.

18 ROSMER v. PFIZER