* * * The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.

Under Count I, Hales alleges he was due more than $10,000, apparently, from argument presented to this Court, either on a theory of quasi contract or pursuant to equitable reformation of the Program's terms. Thus, Count I does not facially disclose to a 'legal certainty' that Hales may not recover more than $10,000. Further, nothing in the record before this Court sets forth to any legal certainty that Hales is entitled only to $8631.36 or only to the annuity policy mailed to him; or that Hales is not entitled to claim additional amounts under alleged representations and undertakings by or on behalf of Winn-Dixie. Under the test stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., supra at 289, this Court concludes that the District Court should not have granted summary judgment against Hales under Count I for failure to meet the $10,000 jurisdictional requirement under28 U.S.C. 1332(a). See also C. Wright, Law of Federal Courts 33 at 111 (2d ed. 1970).

Additionally, and alternatively, even if it is determined on remand that Hales' claim under Count I ab initio is limited to $8631.36 and that to a 'legal certainty' his Count I claim is 'really for less than'10 $10,000, Hales may attempt to meet Section 1332(a)'s $10,000 jurisdictional requirement by adding to his diversity claim under Count I the amount of the recovery he is seeking under Count II. See Stone v. Stone, 405 F.2d 94, 96 (4th Cir. 1968); 6 Wright & Miller, Federal Practice and Procedure 1588, at pp. 805-06 (1972). Counts I and II each involve claims which clearly qualify under Section 1332(a) but for the jurisdictional amount requirement. Thus, the aggregation of those claims constitutes aggregation of diversity claims. The fact that Section 1337 jurisdiction is independently present as to Count II is, in that regard, incidental.

The maximum amount that Hales, or any other plaintiff in this case, can possibly seek under 29 U.S.C. 308(b) is not presently known or even claimed by Hales or any other plaintiff herein in the light of their failure to allege sufficient details relating to their requests for information under that section. It may well be that the aggregation of the claims of each plaintiff under the two counts of the complaint exceeds $10,000. While the chances are less that Bridges, Eatmon and/or Tart as compared with Hales will be able to establish that they as individuals are claiming $10,000 in the aggregate under both counts, nevertheless, they should each be given the opportunity so to do. While many of the problems plaintiffs face in this appeal are of their own making, the policies which underlie and govern the application of the Welfare and Pension Plans Disclosure Act require that plaintiffs be accorded the liberal and flexible opportunity inherent in this Court's remand as to both Counts I and II.11

There remains the question as to whether in any event plaintiffs' Count I diversity claims are maintainable under the theory of pendent jurisdiction. The answer to that question is 'no'. The record establishes beyond doubt that the Count I and Count II claims do not grow out of a 'common nucleus of operative fact'. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). The Count II claims relate to alleged failure to furnish the information required by 29 U.S.C. 308(b). While plaintiffs may have sought that latter information in order to consider and/or assert their Count I claims, their causes of action under both Counts I and II are separately maintainable and determinable without any reference to the facts alleged or contentions stated in or with regard to the other count. Accordingly, as to count I, pendent jurisdiction does not exist. United Mine Workers v. Gibbs, supra; Hurn v. Oursler, 289 U.S. 238, 245, 53 S. Ct. 586, 77 L. Ed. 1148 (1933).12

During oral argument, this Court was informed that some of the claims asserted herein are the subject of proceedings in one or more Courts of the State of North Carolina, but that certain other of the claims asserted herein can no longer be effectively so asserted because of the running of limitations. On remand, the District Court will determine an orderly way for the federal and state court litigation to proceed. Cf. Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967).

For the reasons set forth above, the within case is hereby remanded for further proceedings in the Court below in accordance with this opinion.*

Circuit Judge WIDENER dissents from a portion of this opinion and files a dissenting opinion.

* ADDENDUM

Because the dissenting opinion in this case was filed after the opinion of the Court had been filed, there was no opportunity to include appropriate footnotes to this Court's opinion with regard to certain statements set forth in the dissenting opinion.

* Plaintiffs alleged jurisdiction under Count II pursuant to 28 U.S.C. 1355. Accordingly, this Court examined that jurisdictional allegation, noted the complexity of the issue involved, and concluded not to make any determination with regard to it in view of the apparent presence of jurisdiction as to Count II under 28 U.S.C. 1337. Instead, this Court suggested the presence of 1337 jurisdiction and required, upon remand, that the District Court afford to plaintiffs the opportunity pursuant to 28 U.S.C. 1653 timely to amend their jurisdictional allegations with respect to Count II by alleging jurisdiction as to that Count under 28 U.S.C. 1337.

In Part I of his dissent, Judge Widener appears to differentiate, in terms of aggregation, this case from a case in which there are two diversity claims. Jurisdiction in this case either exists or does not exist, insofar as Count I is concerned, under 28 U.S.C. 1332. Accordingly, as to Count I, the sole basis for possible jurisdiction is diversity jurisdiction. With regard to Count II, 29 U.S.C. 308(c) provides that actions relating to 29 U.S.C. 308(b) may be brought in 'any court of competent jurisdiction'. The fact that jurisdiction is concurrently vested by Section 308(b) in federal as well as state courts does not mean that diversity jurisdiction is not present when the parties are in fact diverse as to their respective citizenship.13 In other words, the fact that the Congress conferred concurrent jurisdiction on the federal courts as well as on the state courts does not mean that when diversity is present, jurisdiction in a federal court cannot exist pursuant to 28 U.S.C. 1332.14 It is therefore immaterial, in terms of the aggregation of the claims under Counts I and II, that concurrent federal and state jurisdiction is conferred by Section 308(c) as to Count II. What we have here are two diversity claims.

Insofar as Harrold v. Coble, supra is concerned, when that case was before the District Court, a question was raised as to whether the defendants were the 'administrator' of the profit-sharing plan and trust agreement. The District Court held alternatively that they were, but that in any event plaintiff sued the persons whom he had been told were the 'administrator' when he inquired and as a consequence those persons were estopped to controvert the advice they had given. In this Court in Harrold v. Coble, the question was whether the District Court abused its discretion when it failed to award plaintiff penalties. In the opinion filed by this Court in that case there is no discussion of the question as to who was the 'administrator' or which of either of the District Court's theories in that case was the correct one in determining amenability of the defendant therein to suit.

Our opinion in this case is in conflict with the first of the District Court's alternative holdings in Harrold. We do not agree with that alternative holding. That is not to say, however, that Judge Stanley, sitting in the District Court in that case, was not entirely correct in concluding that the defendant therein was estopped to deny that it was the proper defendant. Further, there would not appear to be any inconsistency between what is written in the opinion in this case and what this Court stated in Harrold.

WIDENER, Circuit Judge (concurring and dissenting):

I must respectfully dissent, both as to the majority's disposition of the jurisdictional issues and as to its treatment of the merits of the plaintiffs' federal claim under 29 U.S.C. 308(b).

As to the former, the majority would permit a plaintiff to aggregate his state and federal claims in order to meet the $10,000 jurisdictional requirement under 28 U.S.C. 1332(a); for such a holding, I am unable to find support, either in case law or in reason. As to the latter, the majority's decision that the corporation, and not the committee, is the 'administrator' of the profit sharing plan tends to confuse an already uncertain area of the law, given the statute's ambiguity and our prior holding in Harrold v. Coble, 380 F.2d 18 (4th Cir. 1967), affirming 261 F. Supp. 29 (M.D.N.C.1966), that the committee under a similar plan was liable as the 'administrator.'

The plaintiffs are four former employees of a subsidiary of Winn-Dixie Stores, Inc. (Winn-Dixie). Their suit for damages against Winn-Dixie is based upon two counts. In Count I, they seek to recover for Winn-Dixie's failure to make payments alleged to be due them under the Employer's Profit Sharing Program of Winn-Dixie Stores, Inc.; in Count II, plaintiffs claim that Winn-Dixie, as 'administrator' of that program, is liable under 29 U.S.C. 308(b) for its failure to disclose certain information regarding the operation of that program. The Count I claim arises under State law, while the Count II claim arises under federal law. The plaintiffs allege federal court jurisdiction over the State claim under 28 U.S.C. 1332(a) (diversity) and over the federal claim under 28 U.S.C. 1355 (penalty incurred under Act of Congress).

The district court granted summary judgment for the defendant on both claims. As to Count I, the court found diversity jurisdiction lacking since no one of the four plaintiffs has more than $10,000 in controversy; as to Count II, the court found that Winn-Dixie was not the 'administrator' of the program under 29 U.S.C. 308(b). In view of its disposition of Count II, the federal claim, the district court specifically found it unnecessary to discuss whether the Count I claim might be supported by pendent jurisdiction.

With so much of the majority's opinion as may concern Hale's diversity claim under Count I, I am in substantial agreement. Under the test stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938), it must appear 'to a legal certainty that the claim is really for less than the jurisdictional amount' to justify dismissal. See also McDonald v. Patton, 240 F.2d 424, 425-426 (4th Cir. 1957). Application of that test mandates reversal of summary judgment as to Hales.

As to Count II, however, while the majority's discussion of possible jurisdiction under 28 U.S.C. 1355 may be abstractly correct, it is nevertheless dicta for it does not decide the point raised and concludes with the observation that 'it is not necessary to determine whether Section 308(b) authorizes the imposition of a penalty.' No holding in the case is based on this reasoning. The majority, then, for the first time in this case, raises the point, sua sponte, and holds that jurisdiction over Count II properly exists under 28 U.S.C. 1337 (federal statute regulating commerce). While Section 1337 may provide a proper foundation for federal jurisdiction as to the Count II claims, in view of the fact that Section 1337 was neither pleaded, proved, suggested, nor argued either in the district court or on appeal, and the plaintiffs until the date of filing of the opinion had no idea the jurisdiction of the district court would be based on 1337, a proper course as to Count II would have been to remand the case to the district court without opinion on the merits of the point with leave to the plaintiffs to amend the jurisdictional allegations of the complaint, if they chose.1 The majority did not even deign to use the procedure provided by 28 U.S.C. 1653 and permit amendment in this court, which of course would have given defendants an opportunity to object, but decided a question which had not been raised and about which there was no case or controversy. U.S.Const. Art. III. While federal courts may and should notice lack of jurisdiction on their own motion, F.R.Civ.P. 12(h)(2), Burgess v. Charlottesville Savings & Loan Assoc., 477 F.2d 40 (4th Cir. 1973), the claim of jurisdiction is a different matter. It must be claimed and pleaded by the plaintiff, and affirmatively appear on the face of the complaint. F.R.Civ.P. 8(a); Koll v. Wayzata State Bank, 397 F.2d 124 (8th Cir. 1968); Chasis v. Progress Mfg. Co., 382 F.2d 773, 776 (3rd Cir. 1967); Barnhart v. Western Md. Ry. Co., 128 F.2d 709, 714 (4th Cir. 1942). Not utilizing the statute, 28 U.S.C. 1653, available to allow amendment in this court, but deciding in the abstract a question not raised, and remanding to the district court for amendment there with the question already decided, is in my opinion not an appropriate function of an appellate court. The defendant should not be precluded from litigating a question to which it has not had the opportunity to address itself.

The majority in addition then announces an additional and alternative holding as to Hales, which is not alternative but necessary for Bridges, Eatman, and Tart to remain in court in their diversity claims. It is that each of the plaintiffs may aggregate his federal claim under Count II with his state claim under Count I to meet the requisite $10,000 amount in controversy required by 1332(a). I emphasize that there is no disagreement that the state claims of neither Bridges nor Eatman nor Tart amount to as much as $10,000. The fact that joinder is permitted2 does not mean that the requisite amount in controversy is present. Indeed, the decision of the majority, which effects a judicial change in this circuit in the definition of 'matter in controversy,' conflicts with the clear command of Rule 82 that 'these rules shall not be construed to extend or limit the jurisdiction of the United States district courts . . ..'3 See, e.g., Snyder v. Harris, 394 U.S. 332, 337, 338, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969).4 Similarly, the Supreme Court in Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S. Ct. 422, 425, 85 L. Ed. 479 (1941) held that the rule making authority was limited by 'the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute.'

Acting pursuant to the Constitution, Congress has created several bases for federal court jurisdiction. Among these are 28 U.S.C. 1332(a) (diversity of citizenship and more than $10,000 amount in controversy); 28 U.S.C. 1331(a) (federal question and more than $10,000 amount in controversy); 28 U.S.C. 1337 (cases arising under a federal statute regulating commerce or protecting commerce against restraints in trade; no amount in controversy required); and 28 U.S.C. 1355 (fine, penalty, or forfeiture by Act of Congress; no amount in controversy required). In the instant case, the plaintiff has joined claims which depend for their federal jurisdiction on 1332(a) and quite possibly 1337. And while acknowledging the amount in controversy in Court I falls below the required $10,000, for at least three of the plaintiffs, the majority holds that these plaintiffs may each aggregate the sums claimed in each count to meet the minimum jurisdictional requirement. This construction, I submit, is forbidden by Rule 82, and plainly violates Congress' purpose in increasing over the years the jurisdictional amount in controversy.

At 6 Wright and Miller, Federal Practice and Procedure 1588, at 807 (1971), the authors describe a fact situation indistinguishable from that before us in which diversity exists between A and B:

'But what if A had joined his federal claim for patent infringement with a non-federal claim for unfair competition? The general rule is that when the basis of jurisdiction is a federal question, a party may not join a separate and distinct nonfederal claim that does not independently satisfy jurisdictional requirements. But, if the state claim is sufficiently related to the federal claim, as when it arises out of the same transaction or occurrence, the federal court has discretion to exercise pendent jurisdiction over the state claim.'

3A Moore's Federal Practice, p. 1902, states the same proposition:

'Where jurisdiction is predicated on a federal question as to any one claim, any joined claim for relief under state law requires an independent basis of jurisdiction unless the doctrine of pendent jurisdiction applies.'

According to what is now settled doctrine, a single plaintiff may aggregate his claims arising under state law against an opposing party and thereby satisfy the monetary requirement for federal diversity jurisdiction. E.g., Stone v. Stone, 405 F.2d 94 (4th Cir. 1968); Provident Mutual Life Ins. Co. v. Parsons, 70 F.2d 863, 864 (4th Cir. 1934).5 But federal courts have always required, where separate federal and nonfederal causes of action are alleged, that each have a jurisdictional basis, unless the nonfederal claim may be regarded as 'pendent' to the federal claim.6 E.g., Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933); Geneva Furniture Co. v. Karpen, 238 U.S. 254, 35 S. Ct. 788, 59 L. Ed. 1295 (1915); Zalkind v. Scheinman, 139 F.2d 895 (2d Cir. 1943); Lewis v. Vendome Bags, 108 F.2d 16 (2d Cir. 1940); Snell v. Potters, 88 F.2d 611 (2d Cir. 1937); Newport Industries, Inc. v. Crosby Naval Stores, Inc., 139 F.2d 611 (5th Cir. 1944); General Motors Corp. v. Rubsam Corp., 65 F.2d 217 (6th Cir. 1933), cert. den. 290 U.S. 688, 54 S. Ct. 123, 78 L. Ed. 593 (1933); Musher Foundation v. Alba Trading Co., 127 F.2d 9 (2d Cir. 1942); Delman v. Federal Products Corp., 251 F.2d 123 (1st Cir. 1958).

The writers of both the current leading texts on the subject and every court I have found which has considered the question, with the possible isolated exception of one district court case7 which was not appealed, have come to the conclusion that the rule established by the majority in this case is not tenable. Stone v. Stone, supra, the only case relied upon by the majority is particularly inapposite since it involved only aggregation of state claims, and then was decided on this basis against one defendant and as a matter akin to pendent jurisdiction as to the other, esp. pp. 96, 98. The case is not authority for aggregating amounts of federal and state claims to come under a 'matter in controversy' provision of a jurisdictional statute. No federal claim existed in Stone.

In the present posture of the case, instead of deciding the matter of pendent jurisdiction, the better course would be to remand for the district court to determine if Count I, the nonfederal claim, might be pendent to Count II, the federal claim. As the Supreme Court observed in UMW v. Gibbs, 383 U.S. 715, 725-726, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966),

'Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . ..' U.S.Const., Art. III, 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court . . .. The state and federal claim must derive from a common nucleus of fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole . . .. (Pendent jurisdiction's) justification lies in considerations of judicial economy, convenience and fairness to litigants; . . .'

Properly, this matter of pendent jurisdiction should, I feel, be developed first at the district court level. See Gibbs, p. 728. The discretion should be that of the district court to be reviewed for abuse, not that of this court to exercise in the first instance.

In Harrold v. Coble, 380 F.2d 18 (4th Cir. 1967), this court affirmed a district court holding8 that the 'committee' and not the corporate employer was liable as 'administrator' under 29 U.S.C. 308(b). Today, this court construes a profit-sharing plan, identical in all material aspects with that in Coble, and reaches the opposite result. While possibly the majority reaches a result more consonant with federal disclosure requirements applicable to such plans, a study of the provisions of the profit-sharing agreements at issue in both cases indicates that the majority is very nearly overruling Coble rather than merely distinguishing it.

Those provisions of the Winn-Dixie plan which the majority finds determinative are duplicates of the earlier Coble plan. Indeed, many of the provisions upon which the decision of the majority depends appear in both plans in haec verba. Both give the company's respective boards of directors the power to appoint and remove members of the committee. Both plans give the company's respective boards of directors the power to amend program provisions, or the entire trust agreement. And both boards may remove the trustee, or even, should they wish, terminate the entire profit-sharing agreement. Neither plan designates, in explicit terms, the company or the committee as the person having 'ultimate control.' But, it seems clear that Coble, on these facts, should either be overruled by an en banc court or distinguished on firmer grounds. I am unable to say that our earlier decision is not to the contrary.

The statute defines the 'administrator' of a profit-sharing plan as'(1) the person or persons designated by the terms of the plan or the collective bargaining agreement with responsibility for the ultimate control, disposition, or management of the money received or contributed; or (2) in the absence of such designation, the person or persons actually responsible for the control, disposition, or management of the money received or contributed, irrespective of whether such control, disposition, or management is exercised directly or through an agent or trustee designated by such person or persons.' 29 U.S.C. 304(b)(1) and (2).

Clearly, the term 'ultimate control' may refer only to a single person or body which has final determination as to how moneys contributed shall be disposed. Webster's New International Dictionary, 2nd Ed. And the majority's suggestion that both the committee and the company may be the administrator seems to strain the clear meaning of the statute. Similarly, this construction places those required to participate in the administration of profit-sharing plans under a considerable burden in determining, upon pain of civil and criminal liabilities, what the law requires of them.