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HIPP v. UNITED STATES

July 6, 1970

Ella HIPP, Betty Davis, Weston Hipp and William Davis, Plaintiffs,
v.
UNITED STATES of America and Frank P. Geraci, Defendants


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

JUDD, District Judge.

 The United States has moved for an order granting it leave under F.R. Civ. P. 6(b) to serve and file cross claims against its co-defendant Frank P. Geraci, after the expiration of the time allowed under F.R. Civ. P. 12(a) and 13(g).

 The action was instituted against the United States and Frank P. Geraci, basing jurisdiction on the Federal Tort Claims Act. 28 U.S.C. § 1346(b). The complaint seeks damages against the United States resulting from a collision between a Navy ambulance and an automobile operated by the defendant Geraci. Plaintiffs Ella Hipp and Betty Davis were passengers in the ambulance. Plaintiffs Weston Hipp and William Davis are their husbands, who claim medical expenses and loss of services.

 The proposed cross-complaint alleges that Geraci was the sole actively negligent party, and that any negligence of the United States was only passive, and asks for indemnity and/or contribution against the co-defendant. The cross-complaint also sets forth claims against Geraci for damages to the Navy vehicle and for medical services furnished to the passengers.

 In an earlier action pending in this court (69-C-211), the United States is being sued by Liberty Mutual Insurance Company as subrogee of State Auto Leasing Corp., the owner of the vehicle operated by Geraci. In that action, the amended answer of the United States sets forth a counterclaim against State Auto Leasing Corp. containing the same claim which it seeks to present in the Hipp action against Geraci.

 The motion to file the cross-claims is opposed on two grounds: (1) that this court has no jurisdiction over defendant Geraci because he is a citizen of the same state as the plaintiffs, and (2) that under New York law, a defendant cannot implead a joint tort-feasor, because there is no right to contribution until after a joint judgment.

 The jurisdiction of this court over Geraci will be discussed first.

 The Status of a Private Co-defendant in a Suit against the United States

 There are several square holdings that there must be a separate ground of federal jurisdiction in order for the court to deal with a claim against a private party named as co-defendant in a suit against the United States under the Federal Tort Claims Act. See Carvelli v. United States, 174 F. Supp. 377 (E.D.N.Y. 1959), and cases cited therein. In 1 Jayson, Handling Federal Tort Claims (1969) § 177, it is stated:

 
"Although other defendants may be joined with the United States when the claimant sues under the Tort Claims Act, there must be a separate and independent basis of federal jurisdiction to support the claim against the private defendants."

 The doctrine of those cases, that a separate basis of federal jurisdiction is necessary, has not been reviewed in the light of the Supreme Court's decisions in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) and Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). None of the cases which have been called to the court's attention discuss the Gibbs or Rosado decisions.

 Under the earlier rule established in Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933), a federal court with federal jurisdiction of one cause of action could keep jurisdiction of a state-law cause of action only if it stated separate grounds for the same relief, not if it stated a separate cause of action. The court in Hurn stated (289 U.S. at 246, 53 S. Ct. at 589):

 
"The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the ...

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