Zahn v. International Paper Company

RESPONDENT:International Paper Company
LOCATION:North DeKalb Shopping Mall

DOCKET NO.: 72-888
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 414 US 291 (1973)
ARGUED: Oct 16, 1973
DECIDED: Dec 17, 1973

Peter F. Langrock – for petitioners
Taggart Whipple – for respondent

Facts of the case


Audio Transcription for Oral Argument – October 16, 1973 in Zahn v. International Paper Company

Warren E. Burger:

We will hear arguments first this morning in number 72-888, Zahn against the International Paper Company.

Mr. Langrock, you may proceed whenever you’re ready.

Peter F. Langrock:

Mr. Chief Justice and may it please the Court.

This is an action that was initiated in the United States District Court, from the District of Vermont on behalf of the Zahns and the leaser and other personnel similarly situated.

It was brought against International Paper Company and the facts of the matter alleged certain problems with the pollution of Lake Champlain as affecting the plaintiffs and the class.

The particular mill about in Ticonderoga is also the subject of another matter before this Court, which has been referred to a Master in Chancery.

The District judge on a motion to dismiss the class action aspects of the case took the matter under advisement.

He appeared before him and after a period of time, he dismissed the class action aspects of the case with and I quote from his opinion “great reluctance”.

The matter was then appealed to the Second Circuit of Court of Appeals, an interlocutory appeal, permission being granted by the Circuit as well as asked for by the District Court.

There they have divided opinion, it was affirmed the en banc proceedings was rather complicated with four of the active judges of seven boarding for en banc, but failing to en banc because of a failure to achieve the majority of five, and, certiorari was granted to this Court.

The basic issue presented is rather a narrow one, and that is whether a United States District Court judge is prohibited from taking jurisdiction of a class action where one on one members of the class might not reach the jurisdictional amount.

In looking at the rule, this is a 23 (b) (3) proceeding and the rule initially requires before any Court can take jurisdiction of the class, a finding that the class is superior to other available methods to the fair and efficient adjudication of the controversy.

The first proposition that I put to the Court is that one can really reduce this case to a mathematical formula, that if we assume that a case on all effects can be efficient, in the Court when it isn’t sufficient.

We then, if it is not efficient, the Court is prohibited the District Court from taking jurisdiction.

If it is efficient then we have two choices, either the Court may take jurisdiction as a class or it is prohibited.

Under this ruling it is prohibited from taking jurisdiction, and so —

I’m trying to understand.

Levit is ruling Mr. Langrock.

He simply held that in his view of the law, that each of the plaintiffs having to have $10,000 as a matter in controversy.

It was not efficient to maintain it as a class action.

I didn’t get the feeling in from his ruling that he felt that he was absolutely debarred, had he reached another result as to the practicality thing in view of his view of the law.

Peter F. Langrock:

I have to disagree with that, sir.

The opinion I think states quite clearly that it was dismissed solely on the prohibitation of Snyder versus Harris, and that it was dismissed with great reluctance, and that is his words.

Yes, but interpreting Snyder against Harris as he did, he then went on to conclude that there would be such serious complications in delay in determining who was bound and who wasn’t.

That this was not maintainable as a class action.

Peter F. Langrock:

Assuming that only members of the class had reached the jurisdictional amount, in other words, if you define your class at 10,000.

Then, he would say, that would be impossible, and therefore, he refused to redefine the class excluding members who would have less in the jurisdictional amount of the 10,000.

The question that — the policy question here, I think, in so much before the Court and in class actions is the question of judicial efficiency.

I would promote that this type of class action.

Now, this is not a — I consider unmanageable class action, this is not a manufactured one.

Peter F. Langrock:

This is a real controversy involving approximately 240 owners of the lake on the lake shore.

This is a case which is going forward in the Federal District Court where there’s a class action or individually on the merits.

The question of multiple litigation that made arise, if the class action were not allowed, maybe very extensive.

It may be done several State Courts, in other District Courts, it may well be multiple litigation in the same District Court.

We think that the judicial efficiency of this type of approach.

This is the — a proper place for a class action, he was whether — is re-litigation.

Litigation was already — the facts that have already been involved in the Supreme Court matter.

This matter is not going to go away, and we think the District Court should be allowed to make a finding that this is the superior, most efficient way of handling it.

And, if that is not the case, then he is prohibited under the Rule 23 of taking it at any case.

When you say make a finding to that effect, do you mean that he should be able to include in the class, people who do not themselves have $10,000 in controversy.

Isn’t the case of Clark versus Paul Gray that was cited in Snyder, and that was cited in Second Circuit opinion, that 306 U.S case.

Wouldn’t we have to overrule that to go a long way?

Peter F. Langrock:

I do not believe so, sir.

That case goes back prior to be change of the rule.

That was an action where some of the named plaintiffs, did not meet the jurisdictional amount.

But one of them did.

Peter F. Langrock:

One of them did and he was allowed to proceed.

There was on the face of the record, certain aspects of the case which are not present in this case.

In other words, there were people who did not meet the jurisdictional amount.

And the effect — looking at the change of the rule, one of the problems, one of the reason for the change of the rule was that it was an awkward situation.

We’re talking about spurious, or what have you.

And the rule simply states what test should be, empirical test to meet the class action with a lot of safeguards.

And we do not think that the previous reasoning of Clark versus Gray calls for overruling.

Perhaps —

But if you follow the reasoning of Snyder against Harris, the rules could be amended to one as blow in the face and you’re still subject to the jurisdictional limitations of the statute, and all the Court was interpreting in Clark versus Paul Gray was the statute that the fact of the class action rule may have been driven and certainly doesn’t affect their reasoning as I read it.

Peter F. Langrock:

Well, I again would beg — it seems to me that what we had in the statute is the diversity of jurisdiction, diversity of citizenship plus the jurisdictional amount.

There have been times in this Court when matter is not meeting the jurisdictional amount, when matter is not needing the diversity of requirement had been allowed when attached to a case with this proper jurisdiction.

The whole concept to the ancillary pendent jurisdiction.

It seems to me that it is a clearly set forth doctrine, that absolute diversity is not required when the main case has jurisdiction.

And to me, it’s not logical to say that one can proceed when you don’t have complete diversity, which is one requirement of the statute but you must meet the jurisdictional amount.

Peter F. Langrock:

And, this is even more so because the diversity requirement is really a constitutional doctrine where the amount in controversy is a statutory one.

But, nonetheless, the Court in Clark did say that and that was after the decision in Ben-Hur which had ruled the way you indicated on diversity.

Peter F. Langrock:

The cases and I think without getting into a complete analysis of Clark.

I think Clark misconstrued its previous precedence, and it’s really a dictum in Clark, the peculiar situation in that case.

I don’t think Clark needs to be overruled to reach our result.

I think that it needs is to be set forth in its proper context.

What we have here is whether or not the jurisdiction is totally prohibited.

And, I don’t think that the concept of ancillary pendent jurisdiction is prohibited by Clark.

Is this a diversity suit or not?

Peter F. Langrock:

This is a diversity, based on diversity and not on controversy.

And, there’s no basis here for saying that Federal Law governs this case, I take it.

Peter F. Langrock:

There perhaps is but there are several questions of State Law, that are involved and it was brought under the diversity statute.

When you will you be on stronger ground or in firmer ground in talking about pendent jurisdiction if you’re starting off with a federal law cause of action?

Peter F. Langrock:

Certainly, it would be on pendent, but as you come to the concept of pendent is being affirmed, it says —

I don’t know ancillary too.

Peter F. Langrock:

I don’t think so, I think that the at least the lower courts had brought ancillary jurisdiction over strictly State claims of the Circuit in the Court of Appeals the —

You don’t say there need to be as much pressure in the cases – or much supporting the cases for reaching out for other State causes of action that joined with another State cause of action.

Peter F. Langrock:

There’s not much case law as such on it, but there’s certainly cases which do —

What was about the governing law on this case?

Peter F. Langrock:

We think this is a case of first impression before this Court.

That the Court has never ruled with regard to whether a Court may take other controversies into its orbit, when it is efficient in the interest of justice to do so.

You know, on the merits is there any — is this a State Law?

What governs, State or Federal Law.

Peter F. Langrock:

State Law

On the merits.

Peter F. Langrock:

State law.

Yes, sir.

In all these claims.

Peter F. Langrock:

There is a — in the pleadings, I mention some Federal claims basically it’s a State Law.

And riparian rights, lawsuits.

Is it an interstate pollution sort of case?

Peter F. Langrock:

The millers on one side of the lake and the landowners are on the other side of the Lake.

And then there’s a — is there a State line in between them?

Peter F. Langrock:

There is a State line in between them.

There are various reasons in the law that we have made election to proceed on this, I think there is possibility for federal jurisdiction independent of that.

The plant now is not in operation anymore, is that correct?

Peter F. Langrock:

The plant was closed several months after the initiation of this lawsuit.

It was — the sludge bed which is still affecting the landowners is still present, and that there’s much litigation whether that should be removed or not removed or how to be disposed of.

But the effects of the pollution are still very much in effect.

One of the two —

Am I wrong in thinking that perhaps in one of our original actions in which we denied the lead to file, was it Illinois against the City of Milwaukee, we had something to say about the governing law in interstate pollution cases.

Peter F. Langrock:

You maybe sir, I’m not familiar with that question.

Well, I suppose it might make a lot of difference as to what — whether – about that ancillary —

If this is not been Federal Law, you might have a very different case.

Peter F. Langrock:

The complaint that we have drawn in this case alleges three basic counts, it states a factual pattern.

We were the — class action of the case was dismissed at a very early stage.

The law of the case is not yet been fully developed. There is an allegation of federal violation in the complaint.

But basically, the count sound in the common law of the State of Vermont rather than any Federal State Statutory Law.

You talk as though there should be might a choice on it.

Peter F. Langrock:

Yes, I think —

There might be and might not be too.

Peter F. Langrock:

This is correct, we stated under the civil rules, a complaint stating a factual basis, which we believe calls for relief.

We believe we’re entitled to relief under the diversity and State argument.

We also believe they may well develop a federal concept out of that, but to be quite candid, we have not developed that question because of the jurisdictional point yet.

And we certainly that would — at least with the Court.

As the —

In other words, you invoked federal jurisdiction exclusively upon the basis of this case?

Peter F. Langrock:

That’s right.

Our complaint alleges diversity is based on diversity sections.


Peter F. Langrock:

I think in response to Justice Rehnquist’s question, responding to the Ben-Hur situation.

We think that is still the good law that it is not necessary to have complete diversity where the case and controversy.

The case before the Court, there is full diversity, and ancillary pendent matters can come before the Court.

We fail to see how the diversity requirement should be differently treated than the amounting controversy.

The effect of this case if it is not — I should point out one more thing too and that is there is big body of case law which in the question of intervention is a matter of right under 2482, indicates that there’s not a need for independent jurisdictional amount where the first case has.

And, I would suggest that this Court — the problems would come about if this Court does not recognize that where in the efficient cause of the administration of justice, you got have this finding first, that a Court is prohibited from taking jurisdiction over a class.

Not only does it destroy the class action concept wherever there is a federal question requiring an amount in controversy, or a diversity question involving the amount in controversy.

But it has effects on the question of the development of the concept of pendent or ancillary jurisdiction.

It has the effect on the law involving intervention of right, and I don’t see how logically one can say that can take jurisdiction on cases which don’t need jurisdictional requirements ancillary in certain cases and not on others.

What I’m arguing here for is not an expansion of any law as I see it but merely an application of law to those cases where we can efficiently put this in to the hands of the District Judge.

Let the man who is on the spot make the decision but let’s not tie his hands, let’s not force this into several pieces of litigation.

Let’s not force this on the State Courts, three pieces, we have six cases in the Vermont District Court, that we have enjoined the problem, that’s just as difficult to try.

The District class action case influences on the damages question.

He is a master.

If you do things, you can deal with what is really a major problem.

A serious pollution situation in the most inefficient, intelligent manner before, and we would hate to see that Court prohibit it from doing so, and this is what this amounts to.

We would suggest that the arguments of the defendant in this matter are really the one class action because it causes problems for them not because of the jurisdiction of this Court at the time this was initiated.

There was no —

Would it not be a just as much of a problem for the defendant in a State Court as here?

Peter F. Langrock:

Well, I expect that if that were filed in State Court, we might have removal of petition.

And, we are faced with same jurisdictional question.

I have seen another cases previously that type of situation.

Isn’t that for their choice?

Peter F. Langrock:

At that point, it would be.

Why aren’t you in State Court?

Peter F. Langrock:

At the time this case was initiated, there was no State class action proceeding.

There was a proceeding that was — the rules of civil procedure amended subsequently to allow it.

But in any case, whether or not, the Congress has given a choice on diversity both to the plaintiff and the defendant.

The question is not — whether or not that we have a diversity but it’s how to make efficient use, and to prevent any more litigation than is necessary given the diversity situation that we have in Congress.

It seems to me in conclusion that the Court is faced with two choices here.

Peter F. Langrock:

A most restrictive ruling which prohibits the District Judge from what I — I think in the mathematical sense, prohibits him from using this when it’s a good proof.

And, there’s nothing here, this is not a case of six million of publication.

This is a piece of real litigation before the Courts and if the District Judge and that we are asking this to be remanded not for necessarily a class action for the termination that if the Court feels, it is the proper tool that it can do so, and it is not prohibited by the fact that one or more persons in the class may not have $10,000 jurisdictional amount.

The alternative would be to tie the hands of District Court and in doing so I think bring up the various problems I have mentioned, thank you.

Warren E. Burger:

Very well.

Mr. Whipple.

Taggart Whipple:

Mr. Chief Justice and may it please the Court.

I’d like to divide my argument as follows.

I’d like to make a few comments about Mr. Langrock’s statements, some of the questions that were asked, and then I want to address myself to the principle question which it seems to me, plaintiff counsel argument didn’t address itself to directly.

And that is this, although the plaintiff stressed the environmental aspects of this case, the legal question presented by this case consents the jurisdiction of the Federal District Courts which have been limited since the beginning of this country in their jurisdiction was so designed by Congress and have been so construed, and limited by the Constitution in Congress in 1789.

Indeed, the first bill introduced it the Senate of this country ended up as Judiciary Act of 1789, with a jurisdiction limit to $500, and I submit we must never forget, in this case or elsewhere that the Federal Court system is a system for a limited purpose.

In every demand like this made on the Federal Courts has to be carefully examined by lawyers, by the Courts, by Congress, and the public to see whether it’s consistent with the ever mounting federal case law which engulfs the Federal Courts.

I would like to address myself first to the reasons why the Court of Appeals is correct in holding that the District Court did not have jurisdiction over this class action.

I think Mr. Justice Rehnquist put his finger on the cardinal of points.

Sir, when you said that in order to overrule the opinion of the Court of Appeals below and the opinion of Judge Leddy, this Court must confront Clark against Gray and overrule it.

I think that’s clear and I think that’s particularly so because of the interpretation put upon Clark against Gray and whether you decide that this plaintiff’s counsel said before the Federal Rule 23 was amended in 1966.

But the interpretation put upon Clark against Gray and Snyder against Harris was thereafter Rule 23 was amended.

I also like to talk about ancillary jurisdiction and the reasons why ancillary or pendent jurisdiction superficially in appealing idea here.

And in my judgment, badly misinterpreted by the dissenting judge below.

The reasons why an ancillary or pendent jurisdiction if applied to a spurious class action where the separate and distinct claims not a unitary constitutional case or controversy, separate claims and people who fall short of the jurisdictional requirement would contravene constitutional statutory, decisional and policy considerations.

Now, I covered comments statements by the plaintiff’s counsel.

He said, as I understood him that the so called sludge bed still shows that the effects of pollution are very much in the effect.

This is wrong.

In the case brought by State from Moore against New York and (Inaudible) which is now on trial before a special master (Inaudible) we have a record of 14,000 pages, we have hundreds of exhibits, thousands of pages.

And in that case, I have cross-examined witnesses who have said — one of them who spend his life from the river and sails over the waters of the sludge bed.

I asked him, what is the water like?

He said, beautiful.

Does that have anything to do with that?

Taggart Whipple:

No sir, but I do not want to stand here and permit the statement to go unchallenged.

We think you don’t need to get into the merits now on your side.

Taggart Whipple:

But, I simply didn’t want that to go about, Mr. Chief Justice.

Now, let us look at the basis for the jurisdiction, federal jurisdiction.

I think it is fair to keep claiming that from the beginning of time, Congress has had the task of describing limitations on this diversity jurisdiction.

Congress has repeatedly reenacted the phrase matter in dispute, originally in 1789, a matter in controversy as it is now.

The Courts have held that this phrase must be strictly construed, the policy of the Statute calls for its strict construction.

We say that it holds is good now, just the way it’s held good from the beginning of time here.

And that cases was smaller amount for the State Courts.

Indeed the diversity statute 1332A constitutes as the Court said in Heely and represents a demonstration of a delicate balance between Federal and State powers.

The Federal Court should not be looked upon as a reservoir for all litigation, but rather in diversity cases, only those cases which meet the jurisdictional amount.

And, the jurisdictional amount towards this Court knows as applies in cases arising under the laws.

The treaties in the Constitution of the United States in Section 1331 (a).

Snyder in 1969, the recent case applied this principle.

It rejected aggregation, despite the claims of the plaintiffs and the sentence in that case that this reduction of aggregation would undercut and undermined.

Those words that are used in majority in dissenting opinion.

Undercut and undermine, the Amendments to Rule 23.

The Court pointed out that a spurious class action is a kind of a permissive joinder device of separate and distinct claims.

And in that situation, each plaintiff to where it’s separate and distinct claim must meet the jurisdictional amount.

They pointed out that the non-aggregation doctrine was not based on old Rule 23 or any rule or procedure, rather it is based under Court’s consistent interpretation of the phrase matter and controversy, which predates even the Federal Rules of Procedure Amendments in 1938, that the Court has held its consistent interpretation for years.

And that Congress in four times raising the jurisdictional amount, starting in 1789, has reenacted the the phrase master in controversy for year and years in a lot of these interpretations.

Well, this litigation will go on as respects for each of whom has the corporate jurisdictional amount.

Taggart Whipple:

I assume it will in the Federal Court, Your Honor.

Yes, so it is not the quite the same posture as — not of course, I didn’t agree with Snyder but that —

Taggart Whipple:

I recognize, Your Honor, you did not and I’ve read your dissent carefully and at the same time I have noted with all respect that in your dissent, you and Mr. Justice Fortas pointed out, that the majority rule would apply to a case just like this where one or more plaintiffs did into the jurisdictional amount and the others did not.

Or that may just reflect the fault of dissenters who usually sound and alarm bigger than there’s warned in.

Taggart Whipple:

Whatever the reason, Your Honor, I have noted that and I have noted that in two cases cited in the majority opinion, the Snyder Clark against Gray, and the Court of Appeal decision in Alvarez.

In each of those cases, one plaintiff satisfied the jurisdictional amount, and I can’t see really logically any difference.

The tool, I think it is true as the Court of Appeals said that they saw a persuasive internal evidence from the Snyder opinion that the rule there admittedly in Snyder, there were no plaintiff with the requisite jurisdictional amount, but the Court of Appeals felt that read carefully, the majority opinion in Snyder covered the situation before Your Honors now.

And that is where we have four named plaintiffs (Inaudible) jurisdictional amount and none — according to the complaint, none of the unnamed plaintiffs meet that amount.

Have you considered our decision in Illinois and City in Milwaukee?

Taggart Whipple:

I have indeed, Your Honor.

Taggart Whipple:

I’d be glad to answer questions about it.

Well, you don’t — well, do you think that it has any bearing on what law governs on the merits of this litigation?

Taggart Whipple:

I start with a proposition, Your Honor in answer to your question that the complaint itself rests solely and entirely on 1332 (a) which is diversity.

I listened to Mr. Langrock carefully and I heard him say that they’re receding in the complaint State Law of Claims. Now, I think that’s evident, this is not a case arising under 1331 (a) which I think as you know.

Well, I’m just wondering after Illinois and Milwaukee, where we said Federal Law governs Federal Commonwealth had still to be developed.

Would the District Court be free to apply State Law?

I understand that what is involved here is alleged pollution from the New York side which by your client, that caused damaged to the plaintiff here on the Vermont side.

Taggart Whipple:

Your Honor, I see the differences between Illinois against Milwaukee on the one hand on this case on the other.

In our claim, Milwaukee was enacting to abate, a public instance of large measure.

This is an action for money damages, each and every one of the four plaintiffs and each and everyone of the 200 (Inaudible) is the money of the class.

Simply from money damage, they’re not trying to abate.

If they wanted to abate, they have other remedies.

Indeed, under the Federal Water Pollution Control Act of 1972, a citizen suits of large measure —

What about liability though, Mr. Whipple?

What about the initial question of liability?

You’re going to have on set of laws — one set of law, one law govern the original acts that your litigating and another law governing this suit here with respect to the very same pollution?

Taggart Whipple:

I don’t think so, Your Honor, when the original suit, the fundamental prayers to removal — removal of the sludge bed.

Now, that’s going to be a Federal common law, isn’t it?

Taggart Whipple:

By your ruling, I gather it is in Illinois against Milwaukee.

But in this case —

The question of whether there’s an obligation to remove or whether there’s been a violation of somebody’s rights in the first place is going to be a question of Federal Law, isn’t it?

Taggart Whipple:

Well, I don’t think it necessarily applies in the —

In the original action.

Taggart Whipple:

Well, in the original action, the question is to whether the bed water be removed is now before the Court.

And it seems to me the trust of your ruling in Illinois against Milwaukee is to visit the remarks you made on actions brought by a State.

It says nothing about actions brought by private people, action brought by a State to abate.

Certainly, if you take a case like George against Tennessee Copper where the Court intimated that there would be a kind of Federal Common Law Rule.

There is no intimation there that the same rule would govern an action between private parties.

Taggart Whipple:

None, whatever Your Honor.

Indeed, at one point in the Milwaukee, one of the other cases, the Court indicates that you would be slow to apply this doctrine to private claims. Illinois against Milwaukee also adopted the language of Texas against Pankey, where the judge there spoke of the State’s right, a quasi-sovereign right in ecological period.

Taggart Whipple:

That’s not this case.

This is a strict common law, border play case for money damages based on it.

Does it make any difference in your case?

Taggart Whipple:

No, I don’t think it would, in either case, suppose it is based on Federal Common Law, then you’re in 1331 (a) and you’ve got the $10,000.

So, when you don’t take it, it makes any difference with respect to the argument about ancillary or pendent jurisdiction.

Taggart Whipple:

Well, I don’t think it makes any difference and I’ll be glad to talk about that argument right now.

As far as ancillary jurisdiction goes, my first point is that when Snyder was decided, in all the chain of cases that Snyder adopted, ancillary jurisdiction was brought in our brief point as it goes back to at least 1824.

And we submit that this Court over the years in applying that the thinking that led to Snyder implicitly rejected the doctrine of ancillary jurisdiction.

But I don’t have to rely on implicit rejection.

I rely upon a —

[Voice Overlap] draw out a single point from Snyder that gave the Court’ jurisdiction.

Taggart Whipple:

That is correct.

That is correct and I can’t find that the matter of ancillary jurisdiction was ever presented in Snyder, I want to be frank about that.

But in the cases where it has been presented, I think that way the law has developed, it’s perfectly clear that the Courts have explicitly refused to exercise ancillary jurisdiction over permissive joinder of separate and distinct claims.

And in Snyder, the Court pointed out that a class action is kind of admissive joinder device where the particular scope is not directed at a risk or a corpus.

And this is not having to do with disputed title in real property or conflicting claims, some kind of a fund or assets in the hands of the Court.

My analysis to the ancillary jurisdiction cases suggest, and I think the law will support me on this that this is a permissible procedure only where there is a unitary constitutional case or a controversy, and that’s not this case.

This is a bundle of more than 200 separate and distinct claims, and we pointed out in our brief at the end of page 45 or so.

A half a dozen or more of the issues that are going to be raised by each and everyone of these 200 people when they come to trial.

Ancillary jurisdiction in order to be applicable, it seems to me from the cases must have a direct relation to a property or assets in the Court’s possession or control.

That’s not the case here, it also has been expanded getting away from Court against (Inaudible) to include compulsory counter claims or claims of a nature that would be precluded if not raised in the principal action.

And this is not that case, these 200 unnamed plaintiff claims are not going to be precluded by any judgment with respect to the (Inaudible).

I don’t find any decisions cited by the plaintiffs or any decisions cited in the dissent, which is precedent for the use of ancillary jurisdiction in a spurious class action.

The case is a limited as I said before to unitary constitutional cases or controversy.

And to expand that limited doctrine, and it is a doctrine of limitation to sweep in 200 separate and distinct claims with 200 separate distinct trials, and 200 separate and distinct juries, that’s what is going to be.

Where you are going to have a mass trial with 200 odd people before the Court, and one jury is going to be out to segregate out each of the considerations involving each of the plaintiffs.

I submit to sweep in these 200 claims under a loose application of the doctrine of ancillary jurisdiction, which the dissent of the law would do flies right in the face of the subtle principles about the jurisdiction of Federal Courts I talked about a moment ago.

Pendent jurisdiction also is involved here, although the term “props” was used rather loosely and intermixed with the ancillary by the judge below.

Pendent and the Court had an occasion to look at this very recently in the Moor v. County Of Alameda case, not cited in my brief because it came out so recently.

Pendent jurisdiction is a specialized form of ancillary jurisdiction, and it really involves as the Court knows, the exercise of federal jurisdiction over a State Law of Claim, which is pendent to a federal claim where —

Even Federal Law governed here so that this are not a Diversity State Law case and there is no problem with pendent jurisdiction.

Taggart Whipple:

No, there would not be —

[Voice Overlap] on 200 of these in the federal —

Taggart Whipple:

On your assumption there would no state claim to scotch tape on to the Federal Claim.

But I also point out in pendent jurisdiction, if we’re correct in saying State Law applies that the cases have involved Federal and State claims by the same party, or the same party, which is not the case here at all.

Well, it isn’t that one accepts the hypothesis advanced by Justice White and Justice Brennan that each individual might have a claim under State Law and also under Federal Law?

Taggart Whipple:

Well, the complaint doesn’t say that, Your Honor but if you — taking your assumption, let’s take that for the moment.

Let’s say, this is a 1331 case, it wasn’t a 1332 case, and that each of these 200 odd plaintiffs says a State Law of Claim and the Federal Law Claim, in the argument —

My premise was that there be no state law claim at all.

Taggart Whipple:

I think it was.

And, this is a kind of pollution case which under Milwaukee is governed by Federal Law then there’s no problem as to any of these 200 claims.

Of a State law claim, it’s entirely a — all 200 are under the federal claim.

Taggart Whipple:

I appreciate that, Your Honor but because the complaint does coach the claim under State law, which is the necessary result of using 1332 (a) diversity suit, I felt I had to address myself to that.

Mr. Whipple, to take three different hypotheses, if you will, which may represent views of very members of the Court that in a situation like this, that is governed by State law that the rule governing an action where a state is involved where you have federal common law, doesn’t apply to action between private parties, that is the first hypothesis.

The second is that you would have two sets of laws available to private parties, both of which would govern, where a State is a party, and also the Vermont law.

And the third being that you would have only federal law as Justice Brennan suggests.

And the second of those hypotheses that I read, you would have a case for pendent jurisdiction, wouldn’t you?

Taggart Whipple:

No, sir.

If I may so, and the reason you wouldn’t is that there is not a unitary case of controversy.

There are more than 200 separate and distinct claims.

Now, the cases as I read them in pendent jurisdiction — I am referring the United Mine Workers against Gibbs and the recent opinion of this Court last spring in Moor v. County Of Alameda make this very claim that has to be as you’ve said, a common nucleus of operative fact.

There isn’t a common nucleus of operative fact.

Each and everyone of these plaintiffs is going to have to rest his claim on separate considerations.

Looking at the record itself, the Zahns on more than half a mile of the shore front.

There the record doesn’t show but they are four miles away from this plant.

The leasers and they run an (Inaudible) the leasers own 1800 feet at shore front, they’re a mile from the plant, they run in a mariner.

If you look at the spectrum of these people up and down the 20 miles of Vermont shore front, they’re all in different situations.

The Zahns themselves might have pendent jurisdiction under my second hypothesis.

Taggart Whipple:

Oh, yes sir.

But they couldn’t bring someone else in who had less than the $10,000.

Taggart Whipple:

I think the Zahns might.

I think the Zahns might, Your Honor, but the thrust of the dissent as you know, in the plaintiff’s argument here is that pendent jurisdiction is enough to sweep in the 200 other people.

The State Law of Claims to the Zahns or to the leasers?

Have I answered your question?

Taggart Whipple:

I want to make a claim that I’m to trying to restrict Gibbs or Moor because I think that in addition to the holding, that there has to be unitary case of controversy, Gibbs also it seems to me, extends pendent jurisdiction, and Moor does too to a situations where the litigation of the principle claim might well have a preclusive effect on the dependent claim, but then again that isn’t this case here because the litigation of the Zahn and leasers’ claim isn’t going to preclude, these are the 200 people in trying their cases wherever they may try them.

Now, the plaintiffs have bottom cases in their brief which they claim slide away from the principles of Gibbs and Moor as I interpret them. We said in our brief that substantially, all of those cases involve the unitary case of controversy.

Since our brief was written, I have read the Court’s opinion in Moor in a footnote 29411 U.S. of page 713 substantially all of the cases, right on by the plaintiff in this respect to categorize by this Court as involving a unitary case of controversy, just what we said on our brief.

I think that distinguishes those cases from our situation.

Now, even if the power to hear exists here with respect to pendent jurisdictions still the Court pointed out in Moor, that that doctrine, the pendent jurisdiction involves consideration for judicial economy, inconvenience, and fairness.

And I submit to you that sweeping in these 200 people with 200 separate and distinct claims runs a 180 degrees away from consideration to judicial economy and fairness of convenience.

These cases which are sought to be swept in here on the class action belonging to State Courts.

There is as plaintiff’s counsel pointed out, a Vermont class action statute, it’s a Chinese copy of Federal Rule 23, it was passed in July 71, a couple of months, a few months after this complaint was brought.

My client is suable in this Court, in the State Courts of Vermont.

There’s no jurisdictional bar with respect to Vermont class action statute because according to my reading of Vermont law, the County Courts have cases involving $200 a year.

So, this isn’t the case, for the unnamed plaintiffs are going to be debarred from suing in an appropriate forum.

They have their forum, it’s available, we can be sued there.

One final observation, basically as plaintiff’s counsels said, this case involves claims of nuisance and trespass whether under the Federal rubric or the State rubric, and because that’s so, we will have a situation which is mass tort, and I remind this Court that the notes to the advisory committee with respect to the change in Rule 23 said that ordinarily, class action treatment would not be appropriate to mass tort situations.

And even if the text writers who are in favor of class actions have come down on that for the same reason and the reasons are just those I mentioned that each and everyone of these plaintiffs is going to have to present a set of different facts of the Court.

And this certainly would not satisfy the requirement of Rule 23 that common factual (Inaudible) —

You’re suggesting that you might have different aspects here, just a suit for an injunction.

Taggart Whipple:

As far as federal law goes.

But now as far as the permissibility of the class action.

Taggart Whipple:

Well, in either event, Your Honor, it seems to me that the plaintiffs would be met by the $10,000 jurisdictional amount.

And I don’t think that you get a different rule for a different result for that reason.

William H. Rehnquist:

The argument you just made Mr. Whipple that this kind of mass tort thing is not amenable to class action.

I take it all petitioners asking us to do is to say that the $10,000 jurisdictional amount doesn’t apply to each and every claimant and it is perfect rule and have the District Court consider a new whether this would be manageable as a class action if he was wrong on the law.

Taggart Whipple:

I agree, Your Honor.

The fundamental case, the threshold hurdle is whether the limit to the jurisdiction, that is always applied to the Federal District Court is here as going to be disregarded when we sweep in these 200 class people, none of whom, according to the complaint have a jurisdictional claim rule over $10,000.

You think, Mr. Whipple that Clark is an obstacle to the petitioner’s case whether or not State of federal law.

Taggart Whipple:

I do, Your Honor because if it’s Federal Law then 1331 (a) governs which speaks of cases arising under the constitution of the law as to the United States and that has a $10,000 jurisdictional limitation in it.

Taggart Whipple:

And the reason for the $10,000 limit there is just the same as it is in 1332 (a) namely, to try to stable up and to prevent the ever mounting case load.

And those with less than $10,000 claim we will have to go to State Courts, and the State Courts and the Federal law governs have to apply.

Taggart Whipple:

On your assumption, the Federal common law would govern, then I think the State Courts would apply Federal common law.

And I argued this before, Your Honor in the original case where you directed this to argue federal common or a State common law, and it seems to me there would be no difficulty there because as I understand it in trying to evolve a federal common law, the Courts look to a variety of sources including relevant State law.

Actually, I think we said in Milwaukee, did we not, that we might in fashioning federal rules consults State standards.

Taggart Whipple:

I think so, I think that’s the clear teaching of Milwaukee and other cases, but I don’t want you to believe that I’m conceding that federal common law governs here or not.

In summary, from the standpoint of discretion of power, this is my closing summary, Your Honor.

Ancillary or pendent jurisdiction is improper here because it would impermissibly expand contrary to Rule 82, the limited jurisdiction of the District Courts, it would multiply, I think in geometrical proportions, the rising case out of the Federal Courts, it would — finally, contrary to the principles enunciated in Gibbs and Moore, and the principle spelled out in Snyder, and it would be contrary to congressional purpose underlying the $10,000 limitation.

I may save some time if necessary to comment on Mr. Langrock’s rebuttal.

Peter F. Langrock:

I just want to make a couple of comments regarding Mr. Whipple’s argument.

He talks about causing arised in the federal case law.

If I read the mandate of 23 (b) (3) right.

The only time that this could be done is when it is efficient and the only time when the Court could do so is when it is going to save judicial time across the aspect.

And, I think — this “parade of horribles” which was suggested by Mr. Whipple, I think aren’t true.

Let us go back to the District Court, I don’t want to argue here, we’re going have a mass trial of 240 people or the merits of the issue.

But I’ll say, let the District Court judge, look at this thing.

Let them sit by on the issue, and make a decision, how am I going to handle this problem involving a serious number of people who are affected in a peculiar way by acts.

And, do you offer something to say about the manageability factor?

Peter F. Langrock:

I don’t think so, Your Honor, he indicated that it could not be managed if he had to separate out those who had $10,000 and those who didn’t.

You got to have to try the damages before you could get to the defendant class, but his opinion said with great reluctance.

He dismissed the suit, because of the holdings of Snyder versus Harris, and so I think we should really leave that decision in the hands of the judge who is going to have to make that decision on the Trial Court.

You have to leave that one way or another, and, if we lose there, I think that takes care of the issue.

I apologize to the Court, I not recognize a name of Illinois versus Milwaukee, that case was decided after we brought this and I am familiar with the case but I’m not quite sure as Mr. Whipple knows exactly what the effects of the common law of the federal common law environmental matters on water waste, how this would affect it?

In any case, I think we still would be involved in the $10,000 jurisdictional amount.

You don’t figure in any event that this was governed by federal law?

Peter F. Langrock:

It would make the pendent concept — what brings the pendent situation —

Taggart Whipple:

There wouldn’t be any State claim to be pendent.

Peter F. Langrock:

No, there would be — would be with the with the State ancillary right where right now, we have to go into the pendent in part, if there is a federal claim in the both situation.

I also would like — this is not —

Well, I take it that you really marked this down that the characterization of the very question as an issue of Federal law, you concede does not assist you much.

Peter F. Langrock:

Not very much, I think we should all hit the $10,000, the question is to where.

These are other efficiencies, which tie into this type of thing.

The efficiency is an expert time — the efficiency’s all the way along the line in this whole environmental field.

But I don’t think I want to get in to that but the statement that this sounds in nuisance and trespass are only two of the three areas which it sounds.

It also sounds in the property rights, riparian rights of joining owners on a lake, or of not at this really, joining but owners in the same body of water.

And we think that if ever there was a common nucleus of fact, this is it, International Paper Company, we allege has done one thing.

And it has continuously done this thing and this affects a large number.

The only difference here would be the question of damages and that can be handled we suggest in a multitude of worries including the possibility of the mass sorting amount.

And we don’t see the powers of the mass trial, I can say on the either side that to have 240 trials on the issue of the merits frightens me a great deal more than to have some procedure in dealing with damages on a common set of facts.

The comment was made that Snyder has nothing for — Snyder, the ancillary jurisdiction did not come into Snyder.

I would suggest to the Court that in Snyder, there was no jurisdiction of the Court to begin with.

That was not a case that was going forward and there was nothing for ancillary to hang its — hang on to tie into.

And I would not have been gone forward in the Courts because of the fact that there was not independent jurisdiction as there is in this case.

And I might suggest to the Court that we may very well have a class here or there maybe other classes where we have a 50 or 200, 250 with only one or two claims.

And to prohibit the District Judge as a jurisdictional matter from going forward is not promoting efficiency as suggested by my opponent.

But it is the time in the Court’s hands for using it in a proper case.

I am not suggesting for a moment that this matter should be handled as a class action unless it meets the text.

And that text is that it is superior to other matters, other ways of handling this as an efficient way in the controversy.

The very Rule of 23 (b) (3) itself, if it doesn’t meet that, we’re out, and if we do meet that, I would hate to see the District Court judge forced at a jurisdictional question to make it a less efficient approach.

William H. Rehnquist:

Mr. Langrock, in the appendix where your complaint is reprinted at pages six and seven.

I noticed in count one, you say that the matter in controversy exclusive in federal clause as each of the unnamed plaintiffs succeed the sum of $10,000 jurisdiction as founded on 28 U.S.C. Section 1332 (a).

Now, do you contend that at this stage of the case, you have the right to rely on some other jurisdictional basis rather than what you named in your complaint?

Peter F. Langrock:

No, I don’t, Your Honor, I think if we went back with some of the Amendment rules, which might be appropriate but here, the question of jurisdiction is a reason on this one and I think that this is where we are here.

I think I would have to stand on that position.

Warren E. Burger:

Thank you gentlemen, the case is submitted.

–There is no significance and I did know the answer but I do not, what is the comparative State of calendars of the Federal Courts in the State Courts in the State of Vermont?

Peter F. Langrock:

The Federal calendar is more current in those parts.

Now, do State calendars greatly —

Peter F. Langrock:

Depending upon the counties but for the most part, the Federal Courts — the Federal Courts is as current as any State Court calendar, and there are some State Court calendars which are substantial behind the Federal Court calendar.

Warren E. Burger:

The case is submitted.