The opinion of the court was delivered by: BARTELS
The question presented is whether the doctrine of pendent jurisdiction can be applied in a Federal Torts Claims Act (FTCA) case to a state common law case arising out of a common nucleus of operative fact even though there is otherwise no federal jurisdiction over the party against whom the state common law claim is asserted.
Plaintiffs brought this action, arising out of a slip and fall on a sidewalk abutting a United States Post Office in Huntington, under the Federal Torts Claims Act, 28 U.S.C. §§ 2671 et seq., and the corresponding jurisdictional provision of 28 U.S.C. § 1346(b). Plaintiffs name as defendants four parties alleged to have responsibility for the sidewalk, including the Town of Huntington which moves to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, for lack of jurisdiction over it. In its motion, Huntington asserts that because the FTCA does not create jurisdiction over it, and there is no diversity between it and the plaintiffs, this Court is without jurisdiction over the Town. Plaintiffs, on the other hand, urge that Huntington be kept in the case under principles of pendent jurisdiction.
The United States Magistrate, to whom this motion was referred, issued a Report and Recommendation concluding that the district court should retain jurisdiction over Huntington under the doctrine of pendent-party jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Aldinger v. Howard, 427 U.S. 1, 18, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976). After reviewing the Magistrate's Report and Recommendation and the relevant case law, and after careful consideration of the parties' responses to the Magistrate's Report, the Court agrees with the Magistrate's carefully researched and reasoned Report, for the reasons set forth therein.
The only addition the Court wishes to make is to note that Meyers & Meyers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975), which Huntington urges was overlooked by the Magistrate, is inapposite and does not require a contrary conclusion. In that case, also brought against the United States Postal Service under the FTCA, the Court merely noted in passing that there was no jurisdiction under the FTCA over two individual employees of the postal service, and that "No justification for ancillary or diversity jurisdiction has been claimed or argued for by appellants in this case." Id. Thus, the Court of Appeals had no opportunity to consider whether pendent-party jurisdiction might apply. Plaintiffs here, on the other hand, have presented justifications for the exercise of pendent-party jurisdiction of the type already accepted in numerous other cases cited by the Magistrate. See also Jappa v. PJR Construction Co., 84-3067 Slip Op. (S.D.N.Y. Oct. 4, 1985). Huntington's other objections have been properly decided by the Magistrate and need not be addressed here.
Accordingly, the attached Report and Recommendation of the Hon. David F. Jordan, United States Magistrate, is hereby adopted as the Opinion of this Court, and Huntington's motion to dismiss for lack of jurisdiction is denied.
Huntington has requested, should the Court decide against it, that it be granted leave to appeal immediately pursuant to 28 U.S.C. § 1292(b). In view of the heavy burden of the Circuit Court's case load, it would be unfair to give them the obligation to decide this issue at such an early point in the litigation, particularly when, in the opinion of this Court, the decisions of the Court of Appeals in pre-Aldinger cases, such as Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 809-11 (2d Cir. 1971), and more recently in Weinberger v. Kendrick, 698 F.2d 61, 76-77 (2d Cir. 1982), cert. denied, 464 U.S. 818, 78 L. Ed. 2d 89, 104 S. Ct. 77 (1983), make clear that in all probability the exercise of pendent-party jurisdiction in this case is correct.
Accordingly, permission to take an interlocutory appeal of this decision under § 1292(b) is denied.
BARTELS, United States District Judge.
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