John D. Egnal


Since Congress created the lower federal courts in 1789, there has been a problem defining the scope of the federal judicial power in lawsuits involving the joinder of both federal and non-federal claims. Often such joinder results in a question of subject matter jurisdiction over the non-federal claims and, by discretionary dismissal, many district courts decline to exercise supplemental jurisdiction over a claim that raises a novel or complex issue in state law. In 1990, 28 U.S.C. § 1367(c) expressly codified grounds for discretionary dismissal in pendent claims.

This Article addresses whether the grounds for discretionary dismissal have survived and is part of § 1367(c). The Author examines pre-1990 legislative and judicial history that led to the text of § 1367(c), and the reaction of the district courts, courts of appeal, and scholars. While addressing other grounds for justification of discretionary dismissal, the Author specifically focuses on the possibility of jury confusion due to the dismissal of a state law claim and concludes that the elimination of the risk of jury confusion as a ground for dismissal of supplemental claims is supported by the text, the broad policies of the supplemental jurisdiction statute, and the very specific path that led to the text of § 1367(c).