Because Kroger placed particular emphasis on the circumstance that there was "factual similarity" but no "logical dependence" between the claim asserted by the plaintiff against the third-party defendant and the only other claim asserted (10) (that between the plaintiff and original defendant), there is good reason to conclude that the Kroger rule was not intended to foreclose ancillary jurisdiction over such "logically dependent" claims as a plaintiff's compulsory counterclaim against a third-party defendant, or a plaintiff's claim for indemnity or contribution from a third-party defendant that the plaintiff itself sought to implead. Thus an appropriately modest conception of the Kroger rule is tied to and limited by the facts of Kroger.
The impleaded third-party defendant against whom the plaintiff asserted a claim of direct liability happened in Kroger to be a co-citizen of both the plaintiff and the original defendant who impleaded the third-party defendant.
2 such a plaintiff may invoke supplemental jurisdiction to implead third-party defendants in its own right, and to assert a compulsory counterclaim against a third-party defendant who has chosen to assert a claim directly against the plaintiff.
The district court shall not have jurisdiction of a supplemental claim under subsection (b) if that supplemental claim has been asserted by an original plaintiff against a third party impleaded by an original defendant and the third party has not asserted a claim against the original plaintiff, when the only basis for such jurisdiction is that a claim asserted by the original defendant against the third-party defendant qualifies as a freestanding claim solely on the basis of the jurisdiction conferred by section 1332 of this title.
(38) Thus, Kroger barred supplemental jurisdiction from supporting a claim by a plaintiff against a cocitizen even after that cocitizen had been impleaded by the original defendant as a third-party defendant.
The ostensibly predictable third-party claim by which the original defendant impleaded the third-party defendant was no more supported by independent diversity jurisdiction than was the ensuing claim asserted against the third-party defendant by the plaintiff.
It supposes that a plaintiff might initiate a complete-diversity suit in federal court that would otherwise have been brought in state court against a combination of diverse and nondiverse defendants, because the plaintiff hopes that the nondiverse defendants will be impleaded by the diverse defendant as third-party defendants, thereby allowing the plaintiff to invoke supplemental jurisdiction over the claims it later asserts against its impleaded cocitizens.
The enforcement of the complete-diversity rule, the core principle of the Kroger case, requires that if suit is nevertheless brought in federal court, as in a suit by A against B, A not be permitted to invoke supplemental jurisdiction over a claim added against AB just because AB has been impleaded by B.
According to his just-quoted formulation, the Kroger rule denies "supplemental jurisdiction over claims by plaintiffs against third-party defendants impleaded by defendants." Hartnett, supra note 1, at 651.
Thus I refer to the sixth sentence of Rule 14(a) as "Rule 14(a)." Rule 14(a) authorizes the assertion of a claim by the third-party defendant against the plaintiff, provided that the claim arises out of "the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." The "third-party plaintiff" is the original defendant, who now wears two hats in the litigation after invoking Rule 14(a) to implead the third-party defendant by the filing and service of a third-party complaint.
If Congress wishes to amend the ALI draft, I would prefer that it direct its attention to the scope of the discretion of district courts to decline supplemental jurisdiction in the quasi-Kroger situation that Professor Hartnett contemplates (where the impleaded third party is diverse from the defendant) rather than that it seek to bar at the threshold any potential exercise of supplemental jurisdiction in that situation.
1954) (refusing on jurisdictional grounds to permit "additional parties to be impleaded" under Rule 13(h)).