Unpublished Disposition, 842 F.2d 335 (9th Cir. 1987)

Robert AREHART, Plaintiff-Appellant,v.The DOW CHEMICAL COMPANY, et al., Defendants-Appellees.

No. 87-1840.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 15, 1988.Decided March 9, 1988.

Appeal from the United States District Court for the Northern District of California; John P. Vukasin, District Judge Presiding.

Before GOODWIN, NELSON, Circuit Judges, and GILLIAM,^**  District Judge.

MEMORANDUM^* 

Robert Arehart brought an action against his union, the United Association of Journeymen and Apprentices of the Plumbing and Pipe-Fitting Industry of the United States and Canada, Local Union 342 (Union), the Dow Chemical Company (Dow), and fifty unidentified Doe defendants. The gist of Arehart's complaint was that the Union and Dow were liable for injuries Arehart sustained at his place of employment. The district court entered summary judgment for the Union and Dow. Arehart now appeals from the entry of summary judgment in favor of Dow. We reverse.

FACTS

Robert Arehart was a journeyman pipefitter and a member of the Union. The Union had negotiated a collective-bargaining agreement with the PMI Corporation (PMI), an enterprise that included pipefitters among its employees.

Over the course of several years, Dow had contracted with PMI to do a number of maintenance-related projects at a Dow chemical plant in Pittsburg, California. On March 15, 1984, PMI was performing maintenance work for Dow at the chemical facility. On that afternoon, PMI contacted the Union and requested that a pipefitter be dispatched to PMI at the Dow facility in Pittsburg. The Union dispatched Arehart in response to PMI's request.

At the Dow facility, Arehart's task was to install "blinds" in piping connected to a distillation column; the distillation column was identified by the designation "B105." To install the blinds, a pipefitter would unbolt the pipe flange from the flange on the B105's side. A solid barrier would be inserted between the flanges, and the flanges would be bolted back together. The installation of the blinds was designed to isolate the piping from the interior of the B105 to prevent water from entering the pipes when the inside of the B105 was washed.

Before PMI employees were asked to install the blinds, Dow employees attempted to purge the B105 of any chemicals it contained. During operation, the B105 contained chlorine and hydrogen chloride. Dow displaced those chemicals with nitrogen gas by inserting for several hours a continuous flow of the gas into the B105. After the nitrogen gas was inserted into the B105, a Dow employee opened a vent on the B105 to watch for any signs of escaping gases and to smell the vent for any odor of gas. After performing this check, the Dow employee concluded that the chlorine and hydrogen chloride had been purged from the B105 and that the B105 contained only nitrogen. Dow then gave control of the B105 to PMI. Red tags were placed on ancillary piping to ensure that no Dow employee tampered with any of the piping.

When Arehart reported to PMI on the afternoon of March 15, 1984, he was asked to shave a portion of his moustache so that he could use effectively a respirator. He was issued various items of safety equipment, and he was sent with a PMI colleague to install the blinds.

After Arehart and his colleague had begun installing the blinds, they decided to wear full-face respirators as an additional safety precaution. Arehart's colleague obtained two full-face respirators from the PMI construction yard, and he and Arehart wore the respirators while they worked on the blinds.

Arehart had been working on the blinds for a number of hours when he was exposed to gas from the B105. He was taken to a hospital, treated for gas inhalation, and released two days later.

On March 4, 1985, Arehart filed a complaint in state superior court against the Union and Dow. The gist of his complaint against the Union was that the Union had a duty to instruct and train its members, including Arehart, in the proper use of gas masks and in the proper manner of avoiding exposure to chemical substances. The complaint alleged that Dow was vicariously liable for the negligence of PMI under the "peculiar risk of harm" doctrine, that Dow was liable for negligently contracting with an incompetent company--PMI, and that Dow was liable for negligence in the operation of premises over which Dow had retained control.

The Union, pursuant to 28 U.S.C. § 1441(a) (1982), removed the case to federal court in December 1985 on the ground that Arehart's allegations against the Union raised a federal question under the National Labor Relations Act, 29 U.S.C. §§ 141-187 (1982). Arehart had not served Dow with the complaint at that point, and Dow therefore did not make any showing of federal subject matter jurisdiction. Arehart did not object to the removal, and he made no motion to remand the case to state court.

Both the Union and Dow moved for summary judgment in federal court. The district court heard and granted those motions on February 12, 1987. Judgment was entered in favor of Dow and the Union on March 26, 1987, and plaintiff filed a notice of appeal on March 26, 1987. Plaintiff amended his notice of appeal on April 2, 1987, to clarify that he was only appealing from the entry of summary judgment in favor of Dow.

DISCUSSION

Arehart claims that the district court had no subject matter jurisdiction to hear his causes of action against Dow and that, therefore, the district court erred in granting Dow's motion for summary judgment. Dow, on the other hand, contends that Arehart and Dow were citizens of different states, giving the district court diversity jurisdiction.

In determining whether the district court had subject matter jurisdiction to hear Arehart's causes of action against Dow, we need look no further than this court's recent decision in Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir. 1987) (en banc). In Bryant, an enbanc panel of this court held: "the presence of Doe defendants under California Doe defendant law destroys diversity and, thus, precludes removal. The nature of the allegations against such Doe defendants is irrelevant for federal removal purposes." Id. at 1083. The court's holding shielded district courts from having to make the "near-impossible determination of when the allegations against Doe defendants are 'specific' enough to defeat diversity." Id.

The procedural history in the Bryant case is similar to the history of the instant case. There, the plaintiff brought an action for personal injuries against the Ford Motor Company (Ford) and fifty Doe defendants. Ford moved for summary judgment, and the district court granted Ford's motion. Plaintiff appealed the district court's grant of summary judgment. A three-judge panel of this court remanded the case to the district court on the ground that because Doe defendants were present in the complaint the district court could not determine whether the Doe defendants would defeat diversity jurisdiction once identified. See id. at 1081.

A petition for rehearing was filed with the panel, and the Ninth Circuit Court of Appeals agreed to hear the case en banc. The court en banc held that the presence of Doe defendants defeats diversity jurisdiction. See id. at 1083. In addition, the en banc court held that the new rule would apply retroactively, see id. n. 6, thereby requiring federal courts to remand to state court pending cases containing allegations against unnamed Doe defendants unless the parties agree to dismiss the Doe defendants or those defendants are "unequivocally abandoned."¹  See id. at 1083.

Here, Dow contended in supplemental briefing that Arehart had unequivocally abandoned the Doe defendants. To support this contention, Dow pointed to Arehart's status conference statement, in which Arehart stated that " [a]ll parties except Dow ... have been served." Appellee's Second Supplemental Excerpt of Record at 76. According to Dow, this statement is evidence that Arehart had no intention of naming any of the unidentified Doe defendants.

As mentioned above, "unequivocal abandonment" exists in only two circumstances: where the plaintiff drops the Doe defendants from the complaint or where the trial commences without service of the Doe defendants. Bryant, 832 F.2d at 1083 n. 5. Here, Arehart neither dropped the Doe defendants from his complaint nor commenced trial without service of the Doe defendants. In fact, Arehart stated at oral argument that he intended to conduct additional discovery and to amend his complaint to name some of the unidentified Doe defendants. Thus, we cannot find that Arehart unequivocally abandoned the Doe defendants. Rather, we find the court's opinion in Bryant controlling in this case. There were Doe defendants present in Arehart's complaint, and the Doe defendants had not been dismissed or "unequivocally abandoned." Thus, pursuant to Bryant, the district court did not have diversity jurisdiction to entertain plaintiff's suit against Dow.

Dow also argued in its supplemental brief that this court has pendent jurisdiction to hear Arehart's causes of action against Dow. Dow, however, appears to have confused pendent claim jurisdiction with pendent party jurisdiction.

Under pendent claim jurisdiction, a state claim against a defendant may be added to a pending federal claim against the same defendant. Carpenters S. Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (9th Cir. 1984). This basis of jurisdiction is premised on the fact that the defendant is already properly in federal court. This premise, however, does not apply to pendent party jurisdiction, where the defendant is not already in federal court on a federal claim.

In this case, Dow contends that the district court had pendent party jurisdiction from the federal claim against the Union to entertain Arehart's state law causes of action against Dow. We disagree. "This circuit historically has been hostile to the concept of pendent party jurisdiction." Safeco Ins. Co. v. Guyton, 692 F.2d 551, 555 (9th Cir. 1982). In fact, this court has held "that pendent jurisdiction does not permit a new party to be added to a case absent an independent jurisdictional basis." Carpenters, 738 F.2d at 1000. Here, there was no such independent jurisdictional basis, and the district court consequently had no pendent jurisdiction to entertain Arehart's causes of action against Dow.

Dow argued orally that the Doe defendants in Arehart's complaint were fictitious and that we should dismiss the Does to perfect subject matter jurisdiction. In the Bryant opinion, however, this court overruled the exception to want of diversity jurisdiction that existed where the named defendants prove that the Doe defendants are wholly fictitious. Id. at 1082. As mentioned above, the holding in Bryant prevented district courts from having to look behind the face of the pleadings to make the "near-impossible determination of when the allegations against Doe defendants are 'specific' enough to defeat diversity." Id. at 1083. Thus, this court has already determined that district courts are not in the position to determine whether the allegations against the Doe defendants are "wholly fictitious." Appellate courts, which are far removed from discovery and the pretrial process, are in an even worse position to make such a determination. We decline to engage in such an endeavor.

Our conclusion that the district court lacked subject matter jurisdiction to hear Arehart's causes of action against Dow renders it unnecessary for us to determine whether the district court erred in determining that there was no triable issue of fact. It also nullifies our need to determine whether the petition for removal should be amended to reflect the diversity of citizenship between Arehart and Dow, because amending the removal petition would not cure the Doe-defendant defect.

In conclusion, we find that the district court was without subject matter jurisdiction to hear plaintiff's causes of action against Dow. Because there were Doe defendants named in the complaint that had not been dismissed or "unequivocally abandoned," the district court had no diversity jurisdiction. Bryant, 832 F.2d at 1083. And it is this court's long-held policy not to recognize pendent party jurisdiction absent an independent jurisdictional basis. Carpenters, 738 F.2d at 1000. There was no independent jurisdictional basis here. The district court, therefore, erred in entertaining Arehart's causes of action against Dow. Consequently, the district court should have remanded to state court Arehart's causes of action against Dow.

REVERSED and REMANDED.