The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
Based on the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, plaintiff has brought this action against the United States of America to recover damages for the personal injury and death of Arthur Maltais. The complaint alleges jurisdiction under 28 U.S.C. § 1346, and plaintiff seeks to have this Court exercise pendent-party jurisdiction over related but nonfederal claims asserted against seven corporate defendants. By motion pursuant to Fed.R.Civ.P. 12(b)(1), defendant West Side Structural Company, Inc. ("West Side") requests dismissal of the nonfederal claims for lack of jurisdiction over the subject matter.
It is undisputed that there is no independent predicate for subject-matter jurisdiction between plaintiff and defendant West Side in the absence of diversity of citizenship. Plaintiff, the widow and executrix of the estate of Arthur Maltais, is a resident and citizen of the State of New York. The only surviving next of kin, heirs, and dependents of Arthur Maltais are plaintiff and their two infant children. Furthermore, the decedent died a resident and citizen of the State of New York. Thus, the issues of real party in interest or manufactured diversity are not before this Court. E.g., Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S. Ct. 84, 76 L. Ed. 233 (1931); O'Brien v. Avco Corp., 425 F.2d 1030 (2d Cir. 1969).
It has long been established that diversity jurisdiction must be based upon "complete" diversity between all plaintiffs and all defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806). For diversity purposes, defendant West Side is deemed a citizen of the State of New York where it is incorporated and has its principal place of business. 28 U.S.C. § 1332(c). Furthermore, in its answer, defendant General Electric Company ("General Electric"), a New York corporation, had set forth lack of diversity of citizenship as an affirmative defense. General Electric, however, has withdrawn this defense in an amended answer filed on August 25, 1977.
Of the seven corporate defendants joined in this action, only one, General Dynamics (Electric Boat Division) ("General Dynamics") is purportedly not incorporated under the laws of the State of New York. In addition, although Sweet Associates, Inc. ("Sweet Associates") admitted incorporation under the laws of New York in its answer, it has alleged incorporation outside the State of New York in other pleadings. It is clear, however, that diversity jurisdiction does not provide a jurisdictional predicate for plaintiff's claims against defendant West Side in this Court.
Plaintiff's sole allegation of jurisdiction in her complaint is founded on the Federal Tort Claims Act. 28 U.S.C. § 1346. See Fed.R.Civ.P. 8(a)(1). Nevertheless, plaintiff may assert reliance on the doctrine of pendent jurisdiction to justify consideration of additional claims since this Court already has jurisdiction over plaintiff's claim against the United States. Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809 n. 10 (2d Cir. 1971).
The federal courts are courts of limited jurisdiction and therefore authority to adjudicate disputes must be found in congressional grants of federal jurisdiction as well as Art. III, § 2 of the Constitution. In this action, plaintiff does rely on the doctrine of pendent jurisdiction and seeks to have this Court recognize the existence of federal judicial power to entertain claims against parties over whom no independent grounds for the exercise of jurisdiction exists. Furthermore, in this action arising out of a fatal accident which occurred at a construction site in Saratoga County, New York, plaintiff requests that this Court exercise that power to adjudicate related state-law claims.
Thus presented, defendant West Side's motion raises two substantial questions: (1) Whether this Court has the power to entertain state-law claims against "pendent parties," over whom no independent grounds for the exercise of federal jurisdiction exists, in an action brought against the United States under the Federal Tort Claims Act; and (2) If this federal judicial power exists, whether this Court should exercise that power over the nonfederal claims asserted by plaintiff herein.
Since the sole issue now before this Court is a question of law, the facts will only be briefly stated. On June 9, 1975, Arthur Maltis, an employee of the Elwin G. Smith Division of the Cyclops Corporation ("Cyclops"), while acting in the course of his employment fell to his death from atop the S8G Administration and Training Building located at the Kenneth A. Kesselring site of the Knolls Atomic Power Laboratory, West Milton, New York. The building premises and site involved in this mishap are owned by the United States.
Plaintiff asserts that these premises were in the possession and control of the United States, General Electric, General Dynamics, and Sweet Associates during the chain of events that led to decedent's death. It is alleged that decedent, while in the process of installing insulated metal siding, was handling a reinforcing bar which had been installed near the edge of the roof of one of the buildings at the Kesselring site when the bar allegedly broke and collapsed causing decedent to fall approximately 40 feet.
It is alleged that Cyclops, a Pennsylvania Corporation, had entered into a subcontractors agreement with Sweet Associates to install insulated metal siding on buildings at the Kesselring site. In addition, plaintiff asserts that Northway Decking and Sheet Metal Corp. ("Northway"), Clifton Steel Corp. ("Clifton"), and General Steel Fabricators, Inc. ("General Steel") are subcontractors and suppliers of steel and reinforcing bars which were used in the construction of the buildings at the Kesselring site. It is further alleged that these corporate defendants along with West Side are responsible for the furnishing and installation of steel at this construction site.
Letters Testamentary were issued to plaintiff, decedent's spouse, on July 17, 1975. Thereafter, on May 31, 1976, plaintiff filed a claim with the Energy Research and Development Administration ("ERDA"), an agency of the United States, in accordance with the Federal Tort Claims Act. 28 U.S.C. §§ 2401(b), 2675. On March 29, 1977, plaintiff commenced the present action individually and as executrix of the estate of Arthur Maltais following the October 7, 1976, denial of her claim by ERDA.
Plaintiff's first claim for relief seeks damages for negligence and is brought against the United States, Sweet Associates, General Dynamics, General Electric, Northway, West Side, Clifton, and General Steel. Plaintiff's second and third claims seek damages for breach of warranty and strict products liability, respectively, and are brought only against the above-mentioned seven corporate defendants. Damages are sought in the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00).
Consequently, following the usual pattern of negligence cases governed by New York law, the United States has cross-claimed against Sweet Associates, Northway, West Side, Clifton, and General Steel and has also commenced a third-party action against Cyclops. Additionally, General Dynamics and Northway have both cross-claimed against all named defendants including the United States; General Electric has cross-claimed against Sweet Associates, Northway, West Side, Clifton, and General Steel; Sweet Associates has cross-claimed against Northway, West Side, Clifton, and General Steel; and General Dynamics and General Electric have both commenced third-party actions against Cyclops. Furthermore, on September 19, 1977, I granted Sweet Associates' unopposed motion for leave to serve a third-party complaint upon Cyclops. As of this time, General Steel has failed to respond to any of these pleadings.
The grounds for the cross-claims against Sweet Associates and the third-party actions against Cyclops are in part premised upon a contractual indemnification provision. See United States v. Seckinger, 397 U.S. 203, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). The remaining cross-claims in this action are founded on established ...