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Intervention allowed despite lack of diversity

Virginia Lawyers Weekly//November 20, 2023

Intervention allowed despite lack of diversity

Virginia Lawyers Weekly//November 20, 2023//

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Where a woman moved to intervene in a suit to assert claims against a pending plaintiff and defendant, intervention was allowed despite the fact the woman and a pending plaintiff were both Virginia citizens. As an intervening plaintiff, the woman is diverse from all defendants. She could then pursue a crossclaim against the other plaintiff.


This case involves an intra-family dispute over the management of certain real estate and trusts. Jeffrey G. Neal has filed a motion to dismiss the complaint in intervention filed on behalf of Linda G. Neal on the ground that the court lacks supplemental subject-matter jurisdiction.

Linda’s complaint in intervention asserts claims against both Jeffrey G. Neal (a plaintiff) and Michael C. Neal (a defendant). Jeffrey contends that § 1367(b) bars Linda, as intervenor, from asserting a claim against him based upon supplemental jurisdiction because both he and Linda are Virginia citizens. In addition, he argues that the complaint fails to state a claim upon which relief can be granted.

Section 1367(b) excludes supplemental jurisdiction over claims by an intervenor seeking to intervene as a plaintiff where such jurisdiction “would be inconsistent with the jurisdictional requirements of section 1332.” The issue before the court is whether that exclusion affects Linda’s claim against


Although Linda has intervened under Rule 24, her intervention is not inconsistent with § 1332 because she is not joining for the exclusive purpose of suing the plaintiff as a nondiverse party and thus not attempting to circumvent the requirements of diversity. She has intervened to join as an additional plaintiff against Michael. As an intervening plaintiff, Linda is diverse from all defendants. In turn, she is also pursuing a crossclaim against Jeffrey.

In Danner v. Anskis, 256 F.2d 123 (3d Cir. 1958), the court held that “Rule 13(g) [the crossclaim rule] does not authorize a plaintiff to state as a cross-claim against a [nondiverse] co-plaintiff a claim arising out of the transaction or occurrence which also is the subject matter of their common complaint against the defendant.” However, this view is inadequate for three reasons.

First, the plain text of Rule 13(g) permits crossclaims between coparties, not just codefendants. Second, the rule should be construed liberally in order to permit supplemental jurisdiction. Third, though of less significance, such an interpretation of Rule 13(g) would undercut the goals of judicial economy by mandating that claims deriving from a common nucleus of operative fact be adjudicated in a separate court.

Accordingly, I adopt the opposite view, which holds that a plaintiff may bring a crossclaim against a coplaintiff hailing from the same state, as the more accurate reading of Rule 13(g). Thus, I find that the court has supplemental subject-matter jurisdiction over Linda’s intervenor claims.

Finally Linda has incorporated the allegations from the plaintiffs’ complaint and the counterclaims into her own intervening complaint by reference. Such incorporation is sufficient to overcome a motion to dismiss for failure to state a claim.

Motion to dismiss for lack of jurisdiction or failure to state a claim denied.

Neal v. Neal, Case No. 1:23-cv-00004, Oct. 30, 2023. WDVA at Abingdon (Jones). VLW 023-3-691. 6 pp.

VLW 023-3-691

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