Apart from the express language of the statute, it is well
settled that the "fellow-servant" doctrine has been abrogated by
the FELA "by placing the negligence of a co-employee upon the
same basis as the negligence of the employer" (Chesapeake & Ohio
Ry. Co. v. De Atley, 241 U.S. 310, 313, 36 S.Ct. 564, 565, 60
L.Ed. 1016 ). In an effort to avoid suits between
co-workers, Congress has provided a remedy to an injured employee
of a "common carrier by railroad", by imposing liability upon the
employer based on the doctrine of respondeat superior. Thus,
even though the statute renders a railroad liable for the
negligence of its "officers, agents or employees"
(45 U.S.C. § 51), the FELA imposes liability only on the railroad, and not its
agents or employees (see Lockard v. Missouri Pac. R.R. Co.,
894 F.2d 299, 302 n. 8 [8th Cir. 1990]).
In his third cause of action against the LIRR, Lee alleges that
he advised his superiors of the conduct of Paz and other
co-workers, which they apparently ignored (see Complaint ¶¶
13-16). Although the LIRR's conduct might be actionable if it can
be established that this amounted to negligence within the scope
of the FELA,*fn3 it does not render the co-worker liable under
Accordingly, Paz is not a proper party defendant under the
FELA, and the Court does not have subject matter jurisdiction
over the claims asserted against Paz on the basis of a federal
question. Thus, in the absence of federal question (see
28 U.S.C. § 1331) or diversity (see 28 U.S.C. § 1332)
jurisdiction, the Court must then determine whether pendent-party
jurisdiction is available against a co-employee in an action
brought under the FELA.
(b) Pendent-Party Jurisdiction.
Although Fed.R.Civ.P. 18(a) expressly permits the joinder of
"as many claims" as a party has against another in an action,
this rule is not without limitation and is subject to the
doctrine of pendent jurisdiction. Rooted in the early Supreme
Court decision of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586,
77 L.Ed. 1148 (1933), the doctrine was later refined in the
landmark decision of United Mine Workers v. Gibbs,
383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). While stressing that
the doctrine is one "of discretion, not of plaintiff's right"
(id. at p. 726, 86 S.Ct. at p. 1139), the Court in Gibbs
nonetheless held that federal courts have the Article III power
to hear state-law claims if, taken together with the federal
question providing jurisdiction, "the entire action before the
court comprises but one constitutional `case'" (id. at p. 725,
86 S.Ct. at p. 1138). The test is whether "[t]he state and
federal claims  derive from a common nucleus of operative fact"
Following Gibbs, several courts, including the Second Circuit
(see, e.g., Almenares v. Wyman, 453 F.2d 1075, 1084-85 [2d Cir.
1971] [Friendly, J.], cert. denied, 405 U.S. 944, 92 S.Ct. 962,
30 L.Ed.2d 815 ), applied the Gibbs analysis to permit
the assertion of pendent claims over parties not the subject of
the federal claim. This "pendent-party" jurisdiction was
addressed by the Supreme Court in Aldinger v. Howard,
427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). "Pendent-party"
jurisdiction is broader than "pendent-claim" jurisdiction in that
the former refers to "the joining of additional parties with
respect to whom there is no independent basis of federal
jurisdiction" (Aldinger, 427 U.S. at p. 6, 96 S.Ct. at p.
2416), not simply the joining of
additional claims between parties already subject to federal
Although Aldinger affirmed the dismissal of the pendent
claims asserted there, the Court nevertheless indicated that in
determining whether pendent-party jurisdiction is available, the
district court must look to whether Congress expressly or
impliedly negated the exercise of federal jurisdiction in the
statute providing the basis for the action (see id. at p. 18,
96 S.Ct. at p. 2422).
The reach of this doctrine, however, has been significantly
curtailed in light of the recent Supreme Court decision of
Finley v. United States, ___ U.S. ___, 109 S.Ct. 2003, 104
L.Ed.2d 593 (1989), which held that pendent-party jurisdiction is
not available in actions brought under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. § 1346(b). In restricting the scope of
pendent-party jurisdiction, the Court concluded that it is only
available when the primary claim is brought under a federal
statute affirmatively granting such jurisdiction (see Finley,
109 S.Ct. at p. 2009).
Although the Second Circuit in a decision post-Finley noted
that "pendent-party jurisdiction apparently is no longer a viable
concept" (Staffer v. Bouchard Transp. Co., 878 F.2d 638, 643 n.
5 [2d Cir. 1989]), after applying the Finley standard, it
recently held that "pendent party jurisdiction is available in
the unique area of admiralty" (Roco Carriers, Ltd. v. M/V
Nurnberg Express, 899 F.2d 1292, 1297 [2d Cir. 1990]).
Accordingly, in order to determine whether the Court may
properly exercise pendent-party jurisdiction over a defendant
solely on the basis of state-law claims, a three-step analysis
must be undertaken: (1) whether the court has the Article III
power under Gibbs to exercise jurisdiction over the claims; (2)
whether, under Finley and Aldinger, the relevant statutory
language provides a basis for extending jurisdiction by
specifically or affirmatively conferring it over claims against
the additional parties; and, (3) whether the Court should
exercise its discretion in light of judicial economy, fairness
and convenience to the parties under Gibbs.
Here, the claims against Paz clearly derive from a "common
nucleus of operative facts", but under any interpretation, the
language of the FELA cannot be read to specifically or
affirmatively confer pendent-party jurisdiction over additional
parties "not named in any claim that is independently cognizable
by the federal court" (Finley, 109 S.Ct. at p. 2006). In fact,
as discussed above (see supra at pp. 579-80), the FELA contains
a limitation on the particular category of parties that may be
sued, namely the railroad and not its agents or employees. Thus,
while the courts in this Circuit were split pre-Finley on
whether pendent-party jurisdiction was available in an action
brought under the FELA (compare Madarash v. Long Island R.R.
Co., 654 F. Supp. 51, 54 [E.D.N.Y. 1987] [yes]; De Maio v.
Consolidated Rail Corp., 489 F. Supp. 315, 316 [S.D.N.Y. 1980]
[yes]; with Shields v. Consolidated Rail Corp., 530 F. Supp. 400,
401 [S.D.N.Y. 1981] [no]), in this Court's view, Finley
has cast serious doubt as to the validity of such joinder.
The Second Circuit has yet to rule post-Finley on the issue
of whether or not a federal district court may assert
pendent-party jurisdiction in an action brought under the FELA.
However, in a recent decision rendered by the Eighth Circuit,
cited by the Second Circuit in Roco Carriers, supra, it was
held that under Finley, "pendent party jurisdiction is not
authorized by the FELA" (Lockard v. Missouri Pac. R.R. Co.,
894 F.2d 299, 302 [8th Cir. 1990]). In applying the principles
enunciated in Finley, the Lockard court reviewed the express
language of the FELA and held:
"It is clear from this language that the FELA
accomplishes in two steps what the FTCA accomplishes
in one: a grant of jurisdiction over claims involving
particular parties, in this case FELA claims against
railroads. Therefore, Finley's holding that such a
jurisdictional grant `does not itself confer
jurisdiction over additional claims by or against
parties,' 109 S.Ct. at 2006, is equally applicable
under the FELA."
(894 F.2d at p. 302.)
In addition, the Second Circuit in Roco Carriers reviewed and
compared the relatively few cases decided "in the wake of
Finley" (899 F.2d at p. 1296), including Lockard, and
concluded that "[t]he admiralty jurisdictional statute does not
contain a limitation as to a certain category of parties, as
does the FTCA and the FELA" (id. at p. 1296 [emphasis
supplied]). The court in Roco Carriers also observed that in
light of Finley, "the continued viability of the doctrine of
pendent party jurisdiction in any context is seriously in
question" (Roco Carriers, at p. 1295 [emphasis supplied]).
Accordingly, based upon the express language of the statute,
and upon the persuasive authority of Lockard and the Second
Circuit's recent dicta expression in Roco Carriers, this
Court is of the view that pendent-party jurisdiction is
unavailable in actions brought under the FELA. Accordingly, Paz'
motion to dismiss the complaint is granted.*fn4
In dismissing the complaint against Paz, this Court makes no
determination with regard to the maintenance of an action in the
state court by Lee on his tort claims against Paz. The Court
further notes that Lee had the option of bringing this action in
state or federal court since the FELA expressly provides for
concurrent jurisdiction (see 45 U.S.C. § 56).
(c) As to Sanctions.
In light of the unsettled nature and recent developments in the
law of pendent-party jurisdiction, it would be improper to impose
Rule 11 sanctions upon Lee.
Based upon the foregoing, Paz' motion to dismiss the complaint
is granted, and his application for the imposition of sanctions