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Supplemental Jurisdiction Over Permissive Counterclaims: A Misconception, Douglas D. Mcfarland

Douglas D. McFarland

This article examines the rapidly growing line of precedent in federal courts that supplemental jurisdiction can exist over a permissive counterclaim. The line springs from two decisions baldly asserting the “case or controversy under Article III” test of § 1367(a) for supplemental jurisdiction requires only a “loose factual connection” of the facts, and so is broader than the “transaction or occurrence” test that limned both ancillary jurisdiction and the compulsory counterclaim rule prior to Congress’ intervention into this settled area of law in 1990. Later cases in the line of precedent simply cite the two founding cases without attempting any …