The Difference Between Power and Permission

INTRODUCTION

Concepts such as supplemental jurisdiction and joinder of parties are difficult enough to grapple with individually. Yet these doctrines do not exist in isolation; they interact to create a system[1] that lawyers must understand as a whole in order to litigate effectively. The real challenge (and fascination) of civil procedure is to try to see how the various pieces of the puzzle fit together into an interrelated, consistent framework for adjudication.

The preceding chapters have separately analyzed the rules governing joinder of claims and parties, on the one hand, and the doctrine of supplemental jurisdiction on the other. However, a particular suit is proper only if both the joinder rules and the jurisdictional requirements are met. This chapter will explore the interrelations of these affiliated doctrines.

As the earlier chapters on joinder demonstrate, no party may assert a claim against another party in the federal courts unless one of the joinder rules—Rules 13, 14, 18, 19, 20, or 24 —authorizes assertion of that claim. However, the fact that the Rules authorize joinder of a particular claim is not sufficient to assure that the federal court may hear it. The court must also have a basis for exercising subject matter jurisdiction over the claim. The federal courts have only limited jurisdictional power; if there is no basis in Article III, §2, to hear a claim, “permission” to join a claim under the Rules cannot substitute for it.

An example may help. If Nimitz is injured in a boating accident involving two other boaters, Spruance and Halsey, Rule 20(a)(2) allows him to sue them both in a single suit. Nimitz’s claims against both arise out of a single occurrence and will both involve the common factual issue of whose negligence caused the accident. However, if Halsey and Nimitz are both from Texas, the suit will be dismissed for lack of subject matter jurisdiction since there is no complete diversity and the suit (a basic tort claim) does not arise under federal law.

This need for both power and permission follows from basic constitutional doctrine. All federal jurisdiction must be found in the “Article III store-house,” and it is up to Congress to confer all or part of that jurisdiction on the lower federal courts. See Judge Sirica’s comments, p. 69. The Federal Rules, on the other hand, are promulgated by the Supreme Court. While the Court has the power to make rules to assure the orderly conduct of business in the federal courts (see 28 U.S.C. §2072), it may not use its rule-making power to expand their jurisdiction. Thus, though the Court has broadly authorized joinder of claims and parties under the Federal Rules, the need for subject matter jurisdiction provides an implicit limitation on joinder in every case. The Court itself reaffirmed this limitation in Fed. R. Civ. P. 82, which provides that “[t]hese rules do not extend or limit the jurisdiction of the district courts.”