22) The Court in Gibbs gave federal courts jurisdiction over federal and state claims that "derive from a common nucleus of operative fact.
Commentators believe that Finley particularly presented a perfect fit for pendent jurisdiction: first the plaintiff was properly in federal court under the Federal Tort Claims Act with her claims against the United States, second plaintiffs state law claims against the state government arose out of the same common nucleus of operative fact, the plane crash.
Judge Becker, in this decision, opines that the tests of "common nucleus of operative fact" and "same transaction or occurrence" are not necessarily dispositive of one another: there may be many separate transactions occurring over a period of time that share a common nucleus of operative fact.
42) Second, both the fee claim and the nonfee claim must arise out of a common nucleus of operative fact.
44) The Court thus agreed that, for plaintiffs to recover attorneys' fees after prevailing on grounds other than fee claims, (1) the fee claim must be substantial and (2) both the fee claim and the nonfee claim must arise out of a common nucleus of operative fact.
The fee and nonfee claims share a common nucleus of operative fact if the nonfee claim was properly joined in the case under the federal court's supplemental jurisdiction.
61) Gagne arguably already prohibited--under its common nucleus of operative fact prong--fee awards when the facts of the fee and nonfee claims are totally unrelated.
66) Thus, even if two claims rely on drastically different legal theories, they satisfy the Sixth Circuit's watered-down reading of Smith so long as they are based on the same facts because all cases arising out of a common nucleus of operative fact share some facts.
Unlike earlier courts that continued Gagne's two-prong approach, the court properly (67) read Smith as creating a new third prong--that the fee and nonfee claims be reasonably related--in addition to the substantiality and common nucleus of operative fact requirements of the two-prong Gagne rule.
Indirectly recognizing Smith's impact, it modified Gagne's second prong--the common nucleus of operative fact standard--requiring instead that the fee and nonfee claims be "closely related factually.
Unlike other circuits, the Fourth Circuit apparently did not read the substantiality and common nucleus of operative fact requirements as equivalent to the supplemental jurisdiction test.
78) Second, some courts have stiffened the second prong of the Gagne rule and incorporated Smith's reasonably related requirement into the common nucleus of operative fact inquiry.