Schlumberger Industries, Inc. v. National Surety Corp.
Opinion of the Court
Vacated and remanded with instructions by published opinion. Judge DONALD RUSSELL wrote the opinion, in which Senior Judge SPROUSE and District Judge BRITT joined.
OPINION
Schlumberger Industries, Inc., appeals from a decision of the United States District Court for the District of South Carolina, granting summary judgment in two consolidated cases to the appellee insurance companies. After hearing initial oral argument, we asked the parties to provide supplemental briefing and present argument on the question of the propriety of the district court’s subject matter jurisdiction. We conclude, for the reasons recited below, that subject matter jurisdiction was lacking, and we order relief accordingly.
I.
From 1956 to 1977, Sangamo Weston, Inc. (“Sangamo”), predecessor in interest to appellant Schlumberger Industries, Inc. (“Schlumberger”), both of which are Delaware corporations with principal places of business in Georgia, manufactured capacitors at its plant in Pickens County, South Carolina. In the mid-1970’s, the South Carolina Department of Health and Environmental Control (“DHEC”) and the United States Environmental Protection Agency (“EPA”) determined that soil and water at certain locations were contaminated by polychlori-nated biphenyls and ■ volatile organic compounds, all “hazardous substances” subject to regulation under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-
II.
In 1988, following Sangamo’s completion of the cleanup to EPA’s satisfaction, two insurers, National Surety Corporation (“National”) and American Insurance Company (“American”), brought a declaratory judgment suit in federal district court in South Carolina (the “Anderson Division ease”) against Sangamo to determine their rights and responsibilities for Sangamo’s cleanup costs under comprehensive general liability (“CGL”) insurance policies they had issued to Sangamo.
Approximately one month after the Anderson Division case was filed, Sangamo filed an analogous declaratory judgment suit in South Carolina state court (the “Greenville County case”) against numerous insurance companies, including National and American, to determine the rights and responsibilities of the insurance companies for cleanup costs under CGL policies they had issued to San-gamo.
Sangamo voluntarily dismissed ICI and, based upon the lack of complete diversity and any other type of subject matter jurisdiction, sought to have the Greenville County case remanded to state court. By Order dated August 11, 1989, the district court denied the motion and retained the case in district court. J.A. 72-73. Sangamo also moved to dismiss the Anderson Division case on the ground that its other insurers were necessary and indispensable parties to the case, and joinder of these parties would destroy complete diversity, the court’s only basis for subject matter jurisdiction over the Anderson Division case. In light of its decision to retain the Greenville County case in federal court, the district court denied this motion as well. The court, noting that both the Anderson Division case and the Green-ville County cas'e sought declaratory relief
Subsequently, the district court granted summary judgment for the insurers, holding that CGL coverage did not extend to CE RO-LA response costs. Sangamo appealed that decision. The panel voted initially to certify the question of liability under the CGL policies to the Supreme Court of South Carolina. Subsequently, however, we directed the parties to address the possibility of a defect in the district court’s subject matter jurisdiction.
III.
ICI removed the Greenville County case to federal district court pursuant to a provision of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611. The FSIA’s removal provision, 28 U.S.C. § 1441(d), states:
Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury....
Although never stated in the record, because there was a lack of complete diversity and no federal question was raised, subject matter jurisdiction in the district court as to Sanga-mo’s claims against ICI would have to have been premised upon either removal jurisdiction under section 1441(d), or the FSIA’s original jurisdiction provision, 28 U.S.C. § 1330(a),
The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.
The problem arises with respect to the district court’s subject matter jurisdiction over the claims against the defendants in the Greenville County case other than ICI. Jurisdiction over the claims against these parties could only have been pendent party jurisdiction
In Finley, the Court addressed whether a tort plaintiff who brought claims in a district court against the federal government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), could also bring state law claims in the same case against private parties. Because the private parties were not of completely diverse citizenship from the plaintiff, the district court’s only possible basis for subject matter jurisdiction as to the state law claims against the private parties would have been by virtue of the fact that they were pendent to the FTCA claim against the government. The Court held that the district court could not exercise such pendent party jurisdiction,
*1279 The FTCA,- § 1346(b), confers jurisdiction over “civil actions on claims against the United States.” It does not say “civil actions on claims that include requested relief against the United States,” nor “civil actions in which there is a claim against the United States” — formulations one might expect if the presence of a claim against the United States constituted merely a minimum jurisdictional requirement, rather than a definition of the permissible scope of FTCA actions. Just as the statutory provision “between ... citizens of different States” has been held to mean citizens of different States and no one else, see [Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) ], so also here we conclude that “against the United States” means against the United States and no one else.
490 U.S. at 552, 109 S.Ct. at 2008 (footnote omitted). The Court also noted the fact that the FTCA was drafted well before the Court’s decision in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); thus, to whatever extent the plain language of the statute seemed consistent with a grant of pendent party jurisdiction, it was unlikely that Congress intentionally chose the language for that purpose. See Finley, 490 U.S. at 555, 109 S.Ct. at 2010. The Court thus found it appropriate to read the jurisdiction-granting statute narrowly and concluded that Congress did not intend to confer pendent party jurisdiction under the FTCA.
We have never squarely addressed the status of pendent party jurisdiction under any of the various federal jurisdictional statutes following Finley. See In re Secretary of Dep’t of Crime Control and Public Safety, 7 F.3d 1140, 1144 n. 2 (4th Cir. 1993) (“Under Finley, we think there is a substantial question whether[, in a section 1983 case,] the district court could properly have invoked either its pendent jurisdiction or its ancillary jurisdiction to entertain [plaintiff’s] state-law claim against [a pendent party].”), cert. denied sub nom. Barfield v. Secretary, N.C. Dep’t of Crime Control, — U.S. —, 114 S.Ct. 2106, 128 L.Ed.2d 667 (1994); We now consider the vitality of pendent party jurisdiction under the FSIA in Finley’s wake.
IV.
A.
ICI removed the Greenville County ease to federal court. If jurisdiction over ICI was proper under the FSIA’s original jurisdiction provision, 28 U.S.C. § 1330(a), and if section 1330(a) allows for pendent party jurisdiction, then jurisdiction over Sangamo’s claims against the. domestic insurers was proper in the court below.
The Ninth Circuit reached a contrary conclusion in Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir. 1989).
The Court in Finley emphasized that the determination of whether Congress intended a particular jurisdictional statute to confer pendent party jurisdiction must focus upon the language of the statute in question.
Examination of the legislative history underlying section 1330(a) confirms our conclusion. In undertaking a seetion-by-section analysis of the FSIA, a House Report explains, with regard to section 1330(a): “The jurisdiction [conferred by section 1330(a) ] extends to any claim with respect to which the foreign state is not entitled to immunity.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. 13, reprinted in 1976 U.S.C.C.A.N. 6604, 6611 (emphasis added).
B.
Even if examination of subject matter jurisdiction under section 1441(d), and not section 1330(a), is appropriate, see supra note 10, we would adhere to our conclusion regarding the lack of subject matter jurisdiction as to Sangamo’s cleanup claims against the domestic insurers. First, it is possible that jurisdiction under section 1441(d) is coextensive with jurisdiction under section 1330(a). If, indeed, that is the case, then, for the reasons given in Section IV.A., supra, there is no pendent party jurisdiction under section 1441(d).
Even if, however, jurisdiction under section 1441(d) is broader than that under section 1330(a) and allows, in appropriate cases, for some form of pendent party jurisdiction,
In view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions-brought against them in the State courts. New subsection (d) of section 1441 permits the removal of any such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought.
H.R.Rep. No. 1487, 94th Cong., 2d Sess. 32, reprinted in 1976 U.S.C.C.A.N. at 6631. This confirms that section 1441(d)’s sole purpose is to give a nonimmune foreign sovereign defendant access to federal court. This right of removal, moreover, is conferred upon the foreign sovereign to the exclusion of the desires both of the plaintiff and of the other defendants.
Here, the foreign sovereign was effectively never in the Greenville County case before the federal district court: Sangamo dismissed it before the district court had even a chance to rule upon ICI’s entitlement to foreign sovereign immunity. As a result, no policy of section 1441(d) is furthered by retaining the case in federal court. Following Finley’s directive that grants of pendent party jurisdiction be narrowly construed, we conclude that, under these circumstances, remand of the Greenville County case was mandated.
The fact that the FSIA’s corresponding original jurisdiction does not extend pendent party jurisdiction supports this result. According to our holding above with respect to
Appellees argue that the position we take approves of jurisdictional manipulation on the part of Sangamo in that Sangamo, they argue, unilaterally overrode the interests of the domestic insurers to remain in federal court. We are not persuaded.
Once ICI was dismissed from the Green-ville County case, there was only minimal diversity, not complete diversity, as required for federal diversity jurisdiction under 28 U.S.C. § 1332(a)(1), Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). The Supreme Court has instructed that Congress has conferred diversity jurisdiction with “jealous restriction.” City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 20, 86 L.Ed. 47 (1941). While jurisdiction under the FSIA may not have been created with similar “jealous restriction,” see Associated Elec. & Gas Ins. Servs., Ltd. v. Texas E. Transmission Corp. (In re Tex. E. Transmission Corp. PCB Contamination Ins. Coverage Litig.), 15 F.3d 1230, 1239 (3d Cir. 1994), cert. denied, — U.S. —, 115 S.Ct. 291, — L.Ed.2d — (1994), that is only because of Congress’ desire to accommodate nonimmune foreign sovereigns, see Williams v. Shipping Corp. of India, 653 F.2d 875, 879 (4th Cir. 1981) (“Both the statutory language and the legislative history [of the FSIA] evince the congressional decision to achieve uniformity of decisional law in the area of suits against foreign sovereigns.”), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). With respect to parties other than foreign states, we must guard jurisdiction under the FSIA with “jealous restriction.” Indeed, were we to allow jurisdiction in the instant case, we would, in effect, allow the domestic insurers to manipulate federal jurisdiction and to evade the jealous restriction with which we must guard both diversity jurisdiction and, at least with respect to parties other than foreign sovereigns, jurisdiction under the FSIA. In short, section 1441(d) is not intended to protect such interests of the domestic insurers; it is intended only to protect the interest of the foreign state to obtain, at its whim, a federal forum.
Last, we note that the fact that we are dealing with removal jurisdiction under the FSIA buttresses our conclusion that we should guard jurisdiction here with “jealous restriction.” “Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction.” Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994). As a result, where “federal [removal] jurisdiction is doubtful, a remand is necessary.” Id.
We conclude that the court below erred in retaining jurisdiction over the Greenville County case after ICI was dismissed.
V.
The Anderson Division case is a declaratory judgment suit brought by the National and American insurance companies against Sangamo to determine their rights and responsibilities under CGL policies they issued to Sangamo. As discussed above, Sangamo moved before the district court to dismiss the Anderson Division ease for want of subject matter jurisdiction. Its ground for this assertion was that a number of other insurance companies, including The Globe Indemnity Company (“Globe”) and Prudential Reinsurance Company (“Prudential Re”), were necessary and indispensable parties to the Anderson Division ease under Federal Rule of Civil Procedure 19, yet joinder of Globe and Prudential Re would destroy complete diversity, leaving the district court without any basis for subject matter jurisdiction. The district court denied Sangamo’s motion, reasoning that joinder of Globe and Prudential Re was not necessary because both were parties in the Greenville County case, and the Anderson Division case and Greenville County ease would be consolidated. See J.A. 71. The district court’s decision to consolidate, however, was based upon its erroneous conclusion that it had subject matter jurisdiction over the Greenville County case. Because, in fact, the district court lacked subject matter jurisdiction over the Greenville County case, see Section’ IV, supra, the district court’s consolidation rationale fails. Further, we determine that, as Sangamo contended below, the other insurance companies, including Globe and Prudential Re, were necessary and indispensable parties to the Anderson Division case.
Rule 19 sets out separate tests for determining whether a person is “necessary,” see Fed.R.Civ.P. 19(a),
The Seventh Circuit, apparently the only court of appeals to have ruled on the matter, has held that, where multiple insurers cover the insured’s same liability for the same time period, all the insurers are indispensable parties to an adjudication as to coverage. Evergreen Park Nursing & Convalescent Home, Inc. v. American Equitable Assurance Co., 417 F.2d 1113 (7th Cir. 1969) (absent insurers in fire loss dispute governed by “other insurance” clauses are indispensable parties, even though insurance contracts create separable obligations). But see Brinco Mining Ltd. v. Federal Ins. Co., 552 F.Supp. 1233, 1238-39 (D.D.C. 1982) (mere presence of “other insurance” clauses not enough to mandate conclusion of indispensability, and where party insurer could later seek contribution from non-party insurers, if necessary, the non-party insurers were not indispensable); Special Jet Servs., Inc. v. Federal Ins. Co., 83 F.R.D. 596, 599-600 (W.D. Pa. 1979) (where insured brought suit against one insurer, other insurer whose policy also may have covered some of the liability at issue was not necessary party).
This potential for “whipsaw” arises from the fact that, as noted above in note 4, different insurance policies issued to Sangamo covered different policy periods, and it manifests itself in three ways, based upon the three steps that a court presiding over some aspect of the controversy at hand would be expected to undertake. First, a court must determine, as a matter of law, whether the CGL policies issued to Sangamo provide any coverage at all for the monies expended by Sangamo on cleanup costs. Second, assuming the answer to the first inquiry to be affirmative, a court would next have to determine, also as a matter of law, what, under the CGL policies, constituted the “trigger of coverage” under the terms of the policies, ie., what act or development is required in order for coverage under the policies to attach. Third, a court would have to determine, as a matter of fact, at what point in time the “trigger of coverage” occurred. City of Littleton v. Commercial Union Assurance Co., 133 F.R.D. 159, 164 (D. Colo. 1990) (facts similar to those presented here).
If two courts handle different aspects of the case separately, the possibility of inconsistent judgments arises. In particular, different interpretations of law as to the first two inquiries, or different findings of fact as to the last inquiry, will result in inconsistent judgments. Cf. Lumbermens Mut. Casualty Co., 806 F.2d at 415 (where resolution of question of law would determine trigger of coverage, so that different resolutions by different courts with different insurers as parties before them could result in insured receiving less than full coverage, court of appeals affirmed district court’s grant of stay pending resolution of issue in concurrent state court action); Liberty Mut. Ins. Co. v. Foremost-McKesson, Inc., 751 F.2d 475 (1st Cir. 1985) (same).
The potential for prejudice arising from different factual determinations with respect to the third inquiry is, we think, especially pronounced: if all of the insurers are not joined in the same case and instead the matter of when the damage occurred is determined by two different courts, and their
With respect to necessity, Rule 19(a)(1) instructs that a person should be joined in any case where “in the person’s absence complete relief cannot be accorded among those already parties.” We think it clear that, given the overarching legal and factual issues of when the contamination- in question occurred, complete relief cannot be adjudicated in the absence of some of Sangamo’s insurers.
Having concluded that Globe and Prudential Re are necessary parties and because their joinder would destroy complete diversity, we must determine whether they are “indispensable” parties. We conclude that they are.
A Rule 19(b) analysis is not mechanical; rather it is conducted in light of the equities of the particular case at bar. The analysis we undertake is guided by consideration of the following four factors:
first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Fed.R.Civ.P. 19(b).
As discussed in the context of Rule 19(a)(1) above, see 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1604, at 46-47 (2d ed. 1986) (noting that the Rule 19(a)(1) analysis is
The second factor asks that we consider to what extent the judgment in the Anderson Division case could be restricted, or alternate relief otherwise fashioned, so that the prejudice to Sangamo might be lessened or avoided altogether. We recognize that the federal district court’s role could be limited to determining, as it already has, whether the CGL policies provide coverage at all under the circumstances presented. The equities, however, counsel against this idea. There is no interest that would be furthered by the entrance of such a partial judgment.
With respect to the fourth factor, we see no reason why the Greenville County ease will not provide an adequate alternative forum for the plaintiffs in the Anderson Division case, National and American to have their claims adjudicated. While it is true that National and American are not citizens of South Carolina, neither is Sangamo or Sehlumberger. And, of course, the adequacy of the South Carolina court system to rule on issues of South Carolina law cannot be questioned.
All of the insurance companies, including Globe and Prudential Re, are indispensable parties to the Anderson Division case; without them that case should not go forward. Their joinder is thus mandated by Rule 19. Their joinder, however, would destroy complete diversity, the district court’s only basis for subject matter jurisdiction. The cleanup claims in the Anderson Division case should, therefore, be dismissed.
VI.
The judgment of the district court is vacated. We remand the Greenville County ease to the district court with instructions that that court remand the case, pursuant to 28 U.S.C. § 1447(c), to the state court whence it came. We remand the cleanup claims in the Anderson Division case to the district court with instructions that those claims be dismissed without prejudice forthwith.
VACATED AND REMANDED WITH INSTRUCTIONS.
. See CERCLA § 101(14), 42 U.S.C. § 9601(14) (defining the term “hazardous substance”). That the contaminants are properly classified as hazardous substances is not in dispute.
. See CERCLA § 107(a), 42 U.S.C. § 9607(a) (imposing liability for "necessary costs of response" incurred by the United States or by a State); CERCLA § 101(25), 42 U.S.C. § 9601(25) ("The terms ‘respond’ or ‘response’ mean[] remove, removal, remedy and remedial action....”); CERCLA § 101(23), 42 U.S.C. § 9601(23) (defining the terms “remove” or "removal”); CERCLA § 101(24), 42 U.S.C. § 9601(24) (defining the terms "remedy” or “remedial action”).
. In this suit, National and American also sought a declaratory judgment with regard to insurance coverage as to a personal civil suit against San-gamo for damages, which is entitled Carole M. Whitfield, et al. v. Sangamo Weston, Inc., C.A. No. 8:84-3184-17. J.A. 64. The district court stayed further proceedings with respect to the damage claims in Whitfield, and certified its ruling on coverage of cleanup costs pursuant to Federal Rule of Civil Procedure 54(b). The Whitfield claims ate not at issue in this appeal.
.While the insurance companies in the Anderson Division case, National and American, and the insurance companies in the Greenville County case had all issued CGL policies to San-gamo, the coverage accorded to Sangamo under these policies differed. Different policies covered different time periods, and some of the policies were for "excess coverage,” covering any of Sangamo's damages that exceeded its primary coverage for a given year.
. In its appeal, Sangamo does not challenge the district court’s denial of its motion to dismiss the Anderson Division case and the Greenville County case for lack of subject matter jurisdiction. Because these issues are jurisdictional, however, we examine them sua sponte. E.g., State v. Ivory, 906 F.2d 999, 1000 n. 1 (4th Cir. 1990).
. "The courts must learn to accept that, in place of the familiar dichotomy of federal question and diversity jurisdiction, the [FSIA] has created a tripartite division' — federal question cases, diversity cases and actions against foreign states." Ruggiero v. Compania Peruana De Vapores “Inca Capac Yupanqui”, 639 F.2d 872, 876 (2d Cir. 1981) (Friendly, J.).
. As' explained above, the district court lacked diversity jurisdiction or any other type of subject matter jurisdiction with respect to the claims against these parties.
. The Supreme Court has read Congress' grant of pendent claim jurisdiction, that is, jurisdiction as to state law claims brought against a party against whom federal claims have also been alleged, more broadly. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Here, however, the issue is pendent party jurisdiction. See Finley, 490 U.S. at 549-50, 109 S.Ct. at 2007 (distinguishing between pendent party and pendent claim jurisdiction).
. Finley, at least as it bears on the district courts’ original jurisdiction, was largely overruled by 28 U.S.C. § 1367. Section 1367, however, was enacted on December 1, 1990, prior to ICI’s removal of the Greenville County case to federal court and to ICI's dismissal. Section 310 of the Judicial Improvements Act of 1990, which enacted 28 U.S.C. § 1367, instructs: “The amendments made by this section shall apply to civil actions commenced on or after the date of the enactment of this Act.” Pub.L. No. 101-650, § 310(c),. 104 Stat. 5089, 5114. Thus, section 1367 has no application to the Greenville County case. In re Secretary of Dep't of Crime Control and Public Safety, 1 F.3d at 1144 n. 2.
. We note that, bécause this case was not brought originally in federal court but was removed -there, we normally would examine the federal court's jurisdiction only under the FSIA's removal provision, 28 U.S.C. § 1441(d), not under the FSIA’s original jurisdiction provision, 28 U.S.C. § 1330(a). The Supreme Court's decision in Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972), however, may require that we examine jurisdiction in the court below under- section 1330(a). Grubbs held that, where a case - which is removed to federal court is. seen to completion without objec
The absence of sovereign immunity is a requirement for jurisdiction under the FSIA. Security Pac. Nat'l Bank v. Derderian, 872 F.2d 281, 284 (9th Cir. 1989). Jurisdiction under the FSIA "does not attach until it is determined that the foreign sovereign lacks immunity from jurisdiction under the provisions of the FSIA.” Id. at 283. Thus, "[a]t the threshold of every action in a district court against a foreign state, ... the court must satisfy itself that one of the exceptions [to foreign sovereign immunity] applies.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-94, 103 S.Ct. 1962, 1971, 76 L.Ed.2d 81 (1983). Indeed, because, under the FSIA, immunity is presumed, Security Pac. Nat'l Bank, 872 F.2d at 285; see Verlinden B.V., 461 U.S. at 493 n. 20, 103 S.Ct. at 1971 n. 20, "[e]ven if the foreign state does not enter an appearance to assert an immunity defense, a district court still must determine that immunity is unavailable under the Act,” Verlinden B.V., 461 U.S. at 494 n. 20, 103 S.Ct. at 1971 n. 20. In making a determination as to whether one of the exceptions to sovereign immunity applies, the district court "must apply the detailed federal law standards set forth in the Act.” Id. at 494, 103 S.Ct. at 1971.
For removal to have been proper, then, the court below should have made a specific finding as to ICI’s right to sovereign immunity. However, before the district court took any action in the case and before ICI had any real opportunity to claim immunity, Sangamo voluntarily dismissed ICI as a party defendant. After ICI's dismissal, the district court made no finding with respect to ICI's immunity. Instead, in determining that it would retain jurisdiction over the remainder of the case, the district court merely observed, "Sangamo does not dispute that ICI is a foreign sovereign within the meaning of 28 U.S.C. § 1603(a) and (b)....” J.A. 71. This statement is not a finding which meets the FSIA’s jurisdictional requirement • of a specific finding of no immunity. If it was not, then, despite Sanga-mo's failure to raise an objection, jurisdiction never properly attached below, and Grubbs requires examination of the district court’s jurisdiction in retrospect under section 1330(a). Security Pac. Nat’l Bank, 872 F.2d at 281-82 (applying the Grubbs rule in the context of the FSIA to circumstances nearly identical to those presented here). Because we find no jurisdiction over San-gamo's claims against the domestic insurers premised either upon section 1330(a) or section 1441(d), we need not decide which of these statutes is appropriately relied upon for jurisdiction in the Greenville County case.
. Teledyne, Inc. involved a case that was removed from state to federal court. Therefore, in actuality, section 1441(d) was the jurisdiction-granting statute at issue. However, the Teledyne, Inc. court cited both sections 1330(a) and 1441(d), without distinguishing between the two. Moreover, the court's decision speaks broadly of jurisdiction under the FSIA and its analysis is generally not limited to the jurisdictional scope of section 1441(d).
We note that the conclusion that section 1330(a) supports pendent party jurisdiction is consistent with the Ninth Circuit’s reasoning in Security Pacific National Bank v. Derderian, 872 F.2d 281, 284 (9th Cir. 1989). There, as here, a defendant sovereign removed a case to federal district court under 28 U.S.C. § 1441(d). The foreign sovereign moved to dismiss the action against it claiming immunity but, before the district court could act upon the motion, the plaintiff dismissed the foreign sovereign. On appeal, following a judgment for the plaintiff, the Ninth Circuit, following the reasoning outlined in note 10, supra, undertook to examine the district court’s jurisdiction under 28 U.S.C. § 1330(a). The court found that the sovereign was entitled to immunity and therefore vacated the judgment in favor of the plaintiff and ordered the case remanded to state court. Presumably, however, were the court to have found that the sovereign was not entitled to immunity, it would have allowed the judgment to stand even though, it appears, the district court's sole source of jurisdiction would have been pendent party jurisdiction.
We would also note that, in a recent opinion, although it did not squarely address the issue, the Third Circuit did not question the validity of pendent party jurisdiction in a case where jurisdiction was premised upon section 1330(a). See
. The Court also directed that consideration be made of the " 'posture in which the nonfederal claim is asserted.' ” Finley, 490 U.S. at 551, 109 S.Ct. at 2008 (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978)). This does not detain us long for, here, as in Finley,
[t]he most significant element of "posture” or of “context,'' [Kroger, 437 U.S.] at 376 [98 S.Ct. at 2404] ... is precisely that the added claims involve added parties over whom no independent basis of jurisdiction exists.... [T]he relationship between [Sangamo’s claims against the domestic insurers and its claim against XCI] is one of "mere factual similarity," which is of no consequence since "neither the convenience of the litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction,” 437 U.S., at 376-377, 98 S.Ct. at 2404.
490 U.S. at 551-52, 109 S.Ct. at 2008.
. We would note that the court in Teledyne, Inc., 892 F.2d at 1409, expressed the view that the mere fact that Congress used the wording “any ... civil action" in the FSIA supported the view that Congress intended both sections 1330(a) and 1441(b) to confer pendent party jurisdiction. We disagree. The Court in Finley held that the FTCA did not confer pendent party jurisdiction in spite of the use of the phrase "civil action.” We do not think that the modification of that phrase by the word "any” evinces any clearer congressional intent on the matter. See Ortega v. Schramm, 922 F.2d 684, 692-93 (11th Cir. 1991) (no pendent party jurisdiction in section 1983 case even though 28 U.S.C. § 1343(a)(3), confers jurisdiction over "any civil action” brought pursuant to section 1983).
.We note that, before undertaking the section-by-section analysis of the FSIA, the House Report notes that "the [FSIA] prescribes ... the jurisdiction of U.S. district courts in cases involving foreign states." H.R.Rep. No. 1487, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.C.C.A.N. at 6610 (emphasis added). This statement, taken, as it must be, in the context which it was made, does not necessarily mean that the FSIA was intended to grant the district courts original jurisdiction over cases involving foreign states. Moreover, while that statement and other statements in ■ the FSIA's legislative
. See supra note 10.
. Finley, as discussed above, compels the conclusion that section 1330(a) does not afford pendent party jurisdiction. Thus, if jurisdiction under section 1441(d) is coextensive with jurisdiction under section 1330(a), section 1441(d) cannot afford pendent party jurisdiction. Further, if, indeed, section 1441(d) does confer some form of pendent party jurisdiction, then the jurisdiction under the FSIA's original and removal jurisdiction provisions is not coextensive. Compare Teledyne, Inc., supra, 892 F.2d 1404 (indicating, as discussed in note 11, supra, that jurisdiction under sections 1330(a) and 1441(d) is coextensive, and that such jurisdiction is broad enough to encompass pendent party jurisdiction).
We recognize that, well before Finley, in the context of rejecting the notion that FSIA jurisdiction is not the exclusive jurisdictional basis for a claim brought against a foreign sovereign, we stated: "We find that ... a bifurcated analysis of the jurisdictional sections of the [FSIA] to be unwarranted.” Williams v. Shipping Corp. of India, 653 F.2d 875, 880 n. 4 (4th Cir. 1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). We then quoted from the Second Circuit's opinion in Ruggiero v. Compania Peruana De Vapores “Inca Capac Yupanqui", 639 F.2d 872, 878 (2d Cir. 1981), a sentence describing section 1441(d) as section 1330(a)’s “equivalent on removal.” We are also aware of our subsequent statement, also made well in advance of Finley, and in the context of rejecting the notion that it is a jurisdictional prerequisite under the FSIA that a civil action against a foreign state be a nonjury action, that "the jurisdiction of a district court over an action brought against a foreign state is the same whether the action is commenced in federal court or removed from a state court.” Houston v. Murmansk Shipping Co., 667 F.2d 1151, 1154 (4th Cir. 1982). To the extent that section 1441(d) does afford pendent party jurisdiction, these statements must be read as limited to the contexts in which they were made.
.While the general rule equates removal and original jurisdiction, this is not always the case. See 14A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3721, at 194 (2d ed. 1985) (“Removal jurisdiction varies somewhat from original jurisdiction. ...”). Indeed, we have spoken of “removal jurisdiction” as a form of subject matter jurisdiction distinct from original jurisdiction. See, e.g., Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) ("removal jurisdiction raises significant federalism concerns”).
With respect to the FSIA, several factors suggest that Congress intended removal jurisdiction to be broader than original jurisdiction and to confer some form of pendent party jurisdiction. First, the language of section 1441(d) is more accommodating to pendent party jurisdiction than is that of section 1330(a). Section 1441(d) does not include the limiting language “as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity," which is contained in section 1330(a). Second, the legislative history underlying section 1441(d) seems clearly to confirm such an intent:
The opposing view, however, is not without support. After delineating the foreign sovereign's right of removal, section 1441(d) goes on to state: "Upon removal the action shall be tried by the court without jury.” Interpreting the word “action" to mean "entire case" in this context would result in a statutory requirement that the entire removed case would be tried without a jury. This raises serious constitutional questions. Cf. Williams v. Shipping Corp. of India, 653 F.2d 875, 881-83 (4th Cir. 1981) (plaintiff who brings action against foreign sovereign has no constitutional right to jury trial because, at common law in 1791, right of action did not exist), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982); Ruggiero v. Compania Peruana de Vapores "Inca Capac Yupanqui", 639 F.2d 872, 878-81 (2d Cir. 1981) (same). A basic canon of statutory interpretation dictates that a statute should be interpreted so as to avoid potential constitutional infirmiiy. United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404-05, 28 L.Ed.2d 822 (1971). This would suggest that the word "action” in this context be interpreted to refer only to the plaintiff's claim against the foreign state. Then, however, we could only continue to interpret the phrase "civil action” to mean the "entire case" earlier in the same section subject to the Supreme Court's oft-repeated counsel that courts " 'should not lightly infer that Congress intended [a] term to have wholly different meanings in neighboring subsections,’ ” National Org. for Women, Inc. v. Scheidler, - U.S. -, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 489, 105 S.Ct. 3275, 3281, 87 L.Ed.2d 346 (1985)). Indeed, this maxim would seem to have even more force where, as here, the term appears twice within the same subsection, implying that "action” should be read in a consistent fashion throughout the removal provision to refer only to the plaintiff's claims against the foreign state. Of course, reading “action" to mean “entire case” also does not accord, in light of our holding above, with the meaning of the phrase "civil
. Although we hold that the district court in fact had no discretion to retain jurisdiction over the remainder of the Greenville County case following ICI’s dismissal, we feel compelled to express our view that, even if discretion was properly vested in the district court, the court's exercise of such discretion would be highly questionable. We would note that, aside from the procedural posture of the case which strongly augured in favor of dismissal, cases, such as this one, involving insurance coverage of environmental cleanups generally engender difficult questions of state law, see, e.g., Jonathan R. Nash, Note, Environmental Law: An Economic Approach to the Availability of Hazardous Waste Insurance, 1991 Ann. Surv. Am. L. 455, 474-80 (1992). Indeed, in the instant case, the district court had already certified to the Supreme Court of South Carolina the question of which state’s law governed the interpretation of the insurance contracts at issue in this case and that court had responded that the law of South Carolina governed, Sangamo Weston, Inc. v. National Sur. Corp., 307 S.C. 143, 414 S.E.2d 127 (1992). Further, this Court initially voted to certify additional questions of law regarding the proper interpretation of the contracts to South Carolina’s high court.
. We recognize that, under our holding herein, pendent party jurisdiction, at least to the extent it exists under section 1441(d), is not functionally analogous to pendent claim jurisdiction. There is no reason to believe, however, that pendent claim and pendent party jurisdiction are analogous. Indeed, as the Court instructed in Finley, "with respect to the addition of parties, as opposed to the addition of only claims, [courts should] not assume that the full constitutional power has been congressionally authorized and [should] not read jurisdictional statutes broadly.” 490 U.S. at 549, 109 S.Ct. at 2007. We would suggest that further justification for this disparate treatment may arise from the notion that the constitutional underpinnings of pendent party jurisdiction are, as opposed to those of pendent claim jurisdiction, at least somewhat in doubt. See supra note 8.
. Rule 19(a) provides, in pertinent part:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest....
.Rule 19(b) provides:
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)—(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provi-siohsin the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
. The Seventh Circuit, we note, cited Brinco Mining Ltd. and Special Jet Services, Inc. favorably in Casualty Indemnity Exchange v. Village of Crete, 731 F.2d 457, 462 (7th Cir. 1984).
. Worse, if each court were to determine that the contamination occurred during periods not covered by the insurers appearing before it, San-gamo might be completely "whipsawed” and receive no coverage.
. By contrast, with respect to the- interpretations of law, we would note that, it is, if not likely, reasonable that the second court to reach an issue of law "may be inclined to reach a similar conclusion” to the one reached by the first court. City of Littleton, 133 F.R.D. at 164 (finding, on facts similar to those presented here, that all insurers were necessary and indispensable parties). Because, were the Anderson Division case to remain in federal court, we would have certified to the South Carolina Supreme Court at least some of the controlling legal questions, it seems clear that the South Carolina state court handling the Greenville County case would follow the state supreme court's ruling in response to our certification. This, however, presents the possibility of preventing, at least in some sense, those insurers who are not parties to the case in which a legal matter is decided from presenting effective argument on the matter. Id.
.That is not to say that this case presents no other grounds from which findings of necessity and indispensability could be reached. For example, further weighing in favor of the necessity and indispensability of Globe is the fact that Globe provided primary CGL insurance coverage to Sangamo for the years 1965 to 1974. In Globe's absence, the federal district court could not adjudicate the liability, if any, of the insurers who issued excess coverage for those years only after the Globe’s liability was determined, necessarily in state court. We note that the federal district court in City of Littleton, supra, 133 F.R.D. 159, found that, where an insured city whose insurers had issued it nearly identical policies, the interpretation of which presented an overarching legal question, sued some, but not all of its insurers, leaving out two of its primary insurers for given time periods, but including the excess insurers for those time periods, the absent primary insurers were necessary and indispensable parties. By focusing on the potential for factual “whipsaw” discussed in the text, however, we easily conclude that Globe and Prudential Re are necessary and indispensable parties and, consequently, need not trouble ourselves ■ with other means by which such a conclusion might be reached.
. As discussed above in note 24, the only effect of such action would be to encourage the second court to reach a controlling legal issue to follow the result reached by the first, which would prevent the insurers not parties before the first court from preventing effective argument on that issue.
. The district court retains jurisdiction over the unrelated claims arising out of the Whitfield case, see supra note 3, which were stayed by the district court pending this appeal, and which involve only National and American.
Reference
- Full Case Name
- SCHLUMBERGER INDUSTRIES, INCORPORATED v. NATIONAL SURETY CORPORATION Fireman's Fund Insurance Company the Travelers Indemnity Company the Globe Indemnity Company American Motorists Insurance Company Puritan Insurance Company Prudential Reinsurance Company United States Fire Insurance Company Royal Insurance Company of America Jackson & Companies the American Insurance Company, (Two Cases)
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- 11 cases
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- Published