Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress’ Handiwork

Late in 1990, Congress passed a statute that confers on the district courts “supplemental jurisdiction” over a universe of claims that the courts otherwise would, or might, be unable to hear. Essentially, 28 U.S.C. § 1367(a) authorizes the courts to exercise jurisdiction over claims that are part of the same case or controversy, under Article III of the Constitution, as a claim within the court's original jurisdiction. It explicitly grants jurisdiction over claims that involve the joinder or intervention of additional parties, thereby authorizing what had been dubbed pendent party jurisdiction and some forms of ancillary jurisdiction. It also codifies traditional pendent jurisdiction and versions of ancillary jurisdiction that applied to claims among the original parties. In so providing, Congress recognized that,Supplemental jurisdiction has enabled federal courts and litigants to take advantage of the federal procedural rules on claim and party joinder to deal economically - in single rather than multiple litigation - with related matters .... Moreover, the district courts' exercise of supplemental jurisdiction, by making federal court a practical arena for the resolution of an entire controversy, has effectuated Congress's intent in the jurisdictional statutes to provide plaintiffs with a federal forum for litigating claims within original jurisdiction.It enacted § 1367 to provide the federal courts with statutory authority to hear claims lacking an independent basis of subject matter jurisdiction because the Supreme Court had cast doubt on the courts' authority to do so, absent congressional authorization.Section 1367(b) then curtails the power described in (a) by providing, as to civil actions in federal court solely by virtue of diversity jurisdiction, that district courts shall not have supplemental jurisdiction over specific varieties of claims there enumerated, when the exercise of such jurisdiction would be inconsistent with the jurisdictional requirements of § 1332. Subsection (c) sets forth the circumstances in which courts may decline to exercise their supplemental jurisdiction and (d) tolls the statute of limitations for claims that are dismissed.A good deal of scholarly writing already has addressed the strengths and weaknesses of this deceptively simple supplemental jurisdiction statute. I will not here attempt any exhaustive review of the many arguments about its meaning, virtues and vices that pertain to civil actions commenced in federal court or that pertain whether actions are commenced in federal court or arrive there through removal from state court. Although I make some observations that apply to those situations, especially with respect to contexts involving Rule 19 joinder and Rule 24 intervention, my focus is the interplay between the supplemental jurisdiction statute and the removal statutes, in particular 28 U.S.C. §§ 1441 and 1447. The issues that are posed by this interaction have received very little attention from commentators. What's worse, they appear to have received virtually no attention from Congress, despite the fact that removed cases now constitute approximately 12% of the federal docket, or 25,000 cases per year.