          United States Court of Appeals
                     For the First Circuit

No. 17-1593

                    SEXUAL MINORITIES UGANDA,

                      Plaintiff, Appellee,

                               v.

         SCOTT LIVELY, individually and as President of
                    Abiding Truth Ministries,

                      Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Michael A. Ponsor, U.S. District Judge]

                             Before

                       Howard, Chief Judge,
                Selya and Barron, Circuit Judges.

     Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, Daniel
J. Schmid, Mary E. McAlister, and Liberty Counsel on brief for
appellant.
     Pamela C. Spees, Jeena D. Shah, Baher Azmy, Judith Brown
Chomsky, and Center for Constitutional Rights on brief for
appellee.

                         August 10, 2018
             SELYA, Circuit Judge.              This appeal reminds us that

federal courts of appeals have no roving writ to review either a

district court's word choices or its run-of-the-mill interlocutory

orders.    Given these limitations, we are left with two questions,

the first of which can be resolved through principles of judicial

estoppel     and   the   second    of   which    can   be    resolved    through   a

recognition of the district court's broad discretion with respect

to supplemental jurisdiction.              When all is said and done, we

dismiss    some    portions   of    this   appeal      for   want   of   appellate

jurisdiction and otherwise affirm the district court's dismissal

of the underlying action.

I. BACKGROUND

             We start by rehearsing the travel of the case.                  Those

who hunger for greater factual detail should consult the district

court's exegetic rescripts. See Sexual Minorities Uganda v. Lively

(Lively II), 254 F. Supp. 3d 262 (D. Mass. 2017); Sexual Minorities

Uganda v. Lively (Lively I), 960 F. Supp. 2d 304 (D. Mass. 2013).

             Plaintiff-appellee Sexual Minorities Uganda (SMUG) is an

unincorporated association whose members have banded together to

advocate for fair and equal treatment of lesbian, gay, bisexual,

transgender, and intersex (LGBTI) people living in that nation.

In   2012,    SMUG   repaired      to    the     federal     district    court     in

Massachusetts and sued defendant-appellant Scott Lively, asserting

a claim under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and

                                        - 2 -
common-law    claims   for     negligence      and    civil     conspiracy.       The

complaint premised jurisdiction both on the ATS and on diversity

of citizenship.      As an anchor to windward, SMUG also invoked the

district court's supplemental jurisdiction over the state-law

claims.

             The   district    court    denied       Lively's    first   motion   to

dismiss, see Lively I, 960 F. Supp. 2d at 335, and the parties

embarked on extensive pretrial discovery.                In due season, Lively

moved for summary judgment on all claims.                    See Fed. R. Civ. P.

56(a).    He argued, inter alia, that the district court lacked

subject-matter jurisdiction over the ATS claim due to the absence

of evidence of unlawful domestic conduct, see Kiobel v. Royal Dutch

Petroleum Co., 569 U.S. 108, 124-25 (2013); that the court lacked

diversity jurisdiction; and that the court should decline to

exercise supplemental jurisdiction over the pendent state-law

claims.   SMUG opposed the motion, but the district court granted

it,   dismissing     the      ATS   claim      for    want    of   subject-matter

jurisdiction and declining to exercise supplemental jurisdiction

over the state-law claims (which it dismissed without prejudice).

See Lively II, 254 F. Supp. 3d at 270-71.               Although Lively was the

prevailing party, he nonetheless appealed.

                                       - 3 -
II. ANALYSIS

               Lively chiefly faults the district court for including

a series of unflattering statements in its dispositive opinion.1

Second, he says that the district court should have exercised

diversity jurisdiction over SMUG's state-law claims.                    Diversity

jurisdiction         aside,   he    challenges    both   the   district      court's

refusal to exercise supplemental jurisdiction over SMUG's state-

law claims and its dismissal of those claims without prejudice

(rather than with prejudice).                 Finally, he contends that the

district court should have granted his first motion to dismiss in

2013.       We take up these plaints one by one.

                    A. Purging the District Court's Opinion.

               In    his   most    loudly    bruited   claim   of   error,    Lively

beseeches us to purge certain unflattering statements from the

district court's dispositive opinion.              See, e.g., supra n.1.       None

of these statements, though, have any bearing on the analytical

foundations of the dispositive order or impact the result.                      The

statements are, therefore, dicta and, as such, they lack any

binding or preclusive effect.               See Kastigar v. United States, 406

U.S. 441, 454-55 (1972); United States v. Barnes, 251 F.3d 251,

        1
       Most prominently, the court suggested that Lively "aided
and abetted a vicious and frightening campaign of repression
against LGBTI persons in Uganda" and that such actions amounted to
"violations of international law." Lively II, 254 F. Supp. 3d at
264.

                                        - 4 -
258 (1st Cir. 2001).     Because they are not "in any sense necessary

to   the   district    court's   judgment,"   we   lack   jurisdiction     to

entertain Lively's request that we excise them.           United States v.

Ottati & Goss, Inc., 900 F.2d 429, 443 (1st Cir. 1990) (Breyer,

J.); see California v. Rooney, 483 U.S. 307, 311 (1987) (per

curiam).    We explain briefly.

            Lively's    jurisdictional     statement      in   this     court

predicated appellate jurisdiction on 28 U.S.C. § 1291. In enacting

section 1291, Congress authorized the federal courts of appeals to

review final orders and judgments of lower federal courts.                See

Cunningham v. Hamilton Cty., 527 U.S. 198, 203 (1999).                We thus

review "judgments, not statements in opinions."           Black v. Cutter

Labs., 351 U.S. 292, 297 (1956); see Williams v. United States (In

re Williams), 156 F.3d 86, 90 (1st Cir. 1998). Generally speaking,

only a party aggrieved by a final order or judgment may avail

himself of the statutory right to appeal embodied in section 1291.2

See Cunningham, 527 U.S. at 203; Espinal-Dominguez v. Puerto Rico,

      2Like most general rules, the rule of finality is subject to
exceptions and variations. For instance, the Supreme Court has
recognized a "narrow class" of appealable interlocutory orders
"that are conclusive, that resolve important questions completely
separate from the merits, and that would render such important
questions effectively unreviewable on appeal from final judgment
in the underlying action" if not immediately reviewed. Dig. Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994); see Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Lively
does not contend that this collateral order doctrine has any
relevance here.

                                   - 5 -
352 F.3d 490, 495 (1st Cir. 2003).           As a practical matter, this

means that we typically review appeals by parties who lost in the

lower court and confine our inquiry to findings that were necessary

to sustain the final judgment.        See Elec. Fittings Corp. v. Thomas

& Betts Co., 307 U.S. 241, 242 (1939); Vaquería Tres Monjitas,

Inc. v. Pagan, 748 F.3d 21, 27-28 (1st Cir. 2014).

          It follows that a party — like Lively — who has obtained

a favorable final judgment may not "seek review of uncongenial

findings not essential to the judgment and not binding upon [him]

in future litigation."    Mathias v. WorldCom Techs., Inc., 535 U.S.

682, 684 (2002) (per curiam); see Elkin v. Metro. Prop. & Cas.

Ins. Co. (In re Shkolnikov), 470 F.3d 22, 24 (1st Cir. 2006).                A

necessary corollary of this proposition is that "a winner cannot

appeal a judgment merely because there are passages in the court's

opinion that displease him."     Abbs v. Sullivan, 963 F.2d 918, 924

(7th Cir. 1992); see Navieros Inter-Americanos, S.A. v. M/V Vasilia

Express, 120 F.3d 304, 316 (1st Cir. 1997).              Such a praxis stems

not only from the language and clear intendment of section 1291

itself, but also from prudential considerations.               An appellate

court's "resources are not well spent superintending each word a

lower   court   utters   en   route     to   a   final     judgment   in   the

[appellant's] favor." Camreta v. Greene, 563 U.S. 692, 704 (2011).

We conclude, therefore, that we lack jurisdiction to entertain

                                 - 6 -
Lively's request that we purge certain unflattering comments from

the district court's opinion.

          To be sure, the Supreme Court has on rare occasions

determined that a party who won below was nonetheless injured by

a final judgment and that policies "of sufficient importance"

justified entertaining an appeal.   Id. (quoting Deposit Guar. Nat.

Bank v. Roper, 445 U.S. 326, 336 n.7 (1980)).       Lively labors to

fit his appeal into one such exception.     In Electrical Fittings,

the judgment contained a legal finding that was unfavorable to the

prevailing party.   See 307 U.S. at 242.   The Court entertained the

appeal, "not for the purpose of passing on the merits, but to

direct the reformation of the decree."     Id.

          Trying to fit this case into the contours of Electrical

Fittings is like trying to fit a square peg into a round hole.

The judgment from which Lively appeals simply dismisses SMUG's

action; it does not include any findings adverse to Lively.          The

Electrical Fittings exception has no application where, as here,

the language complained of does "not appear on the face of the

judgment" but, rather, appears in the accompanying opinion.         In re

DES Litig., 7 F.3d 20, 25 (2d Cir. 1993); accord United States v.

Fletcher ex rel. Fletcher, 805 F.3d 596, 605 (5th Cir. 2015).         In

short, there is nothing for us to excise.

          Searching   for   traction,   Lively   complains   that    the

challenged statements damaged his reputation.     Whether or not this

                                - 7 -
is true, the overriding principle is that "critical comments made

in   the   course   of    a   trial   court's    wonted      functions     —   say,

factfinding or opinion writing — . . . provide no independent basis

for an appeal."          In re Williams, 156 F.3d at 92.                 Lively's

embarrassment in the face of the district court's unflattering

comments, without more, cannot suffice to manufacture appellate

jurisdiction    where     none   exists.        See   id.;    see   also   In   re

Shkolnikov, 470 F.3d at 25.

            Leaving      no   stone    unturned,       Lively       attacks     the

unflattering comments from yet another direction.                    He contends

that the district court, acting ultra vires, entered findings on

the merits of the ATS claim and that we have jurisdiction to vacate

those findings.          In support, he notes that some courts have

entertained appeals by prevailing parties for the purpose of

vacating unfavorable merits-related findings entered by lower

courts after their subject-matter jurisdiction has dissipated.

See, e.g., Envtl. Prot. Info Ctr., Inc. v. Pac. Lumber Co., 257

F.3d 1071, 1077 (9th Cir. 2001); New Jersey v. Heldor Indus., Inc.,

989 F.2d 702, 708-09 (3d Cir. 1993).3                 Attempting to draw a

      3Most circuits — including this circuit — appear to have
taken a narrower view regarding the reviewability of findings that
are unnecessary to the judgment. See, e.g., Cooper Indus., Ltd.
v. Nat'l Union Fire Ins. Co. of Pittsburgh, 876 F.3d 119, 126 (5th
Cir. 2017)("Appellate courts review judgments, not opinions.");
Tesco Corp. v. Nat'l Oilwell Varco, L.P., 804 F.3d 1367, 1379 (Fed.
Cir. 2015) (same); United States v. Rivera, 613 F.3d 1046, 1051
(11th Cir. 2010) (same); United States v. Accra Pac, Inc., 173

                                      - 8 -
parallel, Lively submits that the court below adjudicated SMUG's

claim under international law even after recognizing the absence

of federal subject-matter jurisdiction over that claim.

          This attempt at parallelism does not withstand scrutiny.

We agree that a decision on the merits by a court lacking subject-

matter jurisdiction is an utter nullity, without binding effect.

See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02

(1998).   Here, however, the district court never purported to

adjudicate the substantive merits of SMUG's ATS claim.    Rather, it

limited itself to "[t]he much narrower and more technical question"

of whether the evidence of domestic misconduct was sufficient to

confer subject-matter jurisdiction over the claim.   Lively II, 254

F. Supp. 3d at 264.    Lively's argument that the district court

decided the merits of the ATS claim is simply wrong.4

          At times, Lively suggests that a different provision,

28 U.S.C. § 2106, operates independently to supply a basis for

appellate jurisdiction.   This argument misses the mark.    Section

F.3d 630, 632 (7th Cir. 1999) (same); In re Williams, 156 F.3d at
90 (same).   For present purposes, it suffices for us to assume
(without deciding) that the slightly broader view articulated in
the cases upon which Lively relies may be good law.
     4 The district court did suggest in passing that Lively might
have violated international law, but it did so without any
meaningful analysis. See Lively II, 254 F. Supp. 3d at 264. This
suggestion is plainly dictum.     As a result, it should not be
accorded any binding effect in future litigation between the
parties. See Barnes, 251 F.3d at 258; Dedham Water Co. v.
Cumberland Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992).

                              - 9 -
2106 empowers courts of appeals to "affirm, modify, vacate, set

aside or reverse any judgment, decree, or order of a court lawfully

brought before it for review" and to "remand the cause and direct

the entry of such appropriate judgment, decree, or order, or

require such further proceedings to be had as may be just under

the circumstances."           The statute thus enumerates the extensive

remedial authority available to a court of appeals, see Will v.

Calvert    Fire    Ins.      Co.,   437    U.S.    655,    661      (1978)   (plurality

opinion), not the sort of orders that may be appealed.

            That      ends    this    aspect       of    the     matter.      We   lack

jurisdiction to entertain Lively's importunings that we purge

certain unflattering comments from the district court's opinion.

Consequently, this portion of Lively's appeal must be dismissed

for want of appellate jurisdiction.

      B. Alternative Basis for District Court Jurisdiction.

            The district court's dismissal of SMUG's ATS claim, see

Lively II, 254 F. Supp. 3d at 271, destroyed the primary hook on

which the district court's federal jurisdiction was hung.                          With

federal    jurisdiction        extinguished,        the    district        court   moved

directly    to    a   consideration         of     whether     it    should    exercise

supplemental jurisdiction over what it viewed as SMUG's pendent

state-law claims.         See id. at 270-71.            On appeal, Lively asserts

that the district court missed a step:                  SMUG's complaint contained

an allegation of diversity jurisdiction, see 28 U.S.C. 1332(a),

                                          - 10 -
and — in Lively's view — that allegation assured the district

court's   jurisdiction     over    SMUG's     state-law   claims   even   after

SMUG's foundational federal claim was jettisoned.

           We   accept    the     underlying    premise   on   which   Lively's

assertion rests: when a district court has diversity jurisdiction,

it normally has the obligation to exercise that jurisdiction.              See

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 356 (1988).                  We

disagree, however, with Lively's conclusion.                   Although SMUG's

complaint alleged jurisdiction under the ATS and the diversity

statute, Lively consistently argued in the district court that

diversity jurisdiction was a myth.          For example, Lively denied the

existence of diversity jurisdiction in his answer to the complaint.

Likewise, in his summary judgment brief, Lively maintained that

"SMUG cannot establish diversity jurisdiction."

           Given the "no diversity" litigating position that Lively

adopted in the district court, SMUG argues that he should be

foreclosed,     as   a   matter    of   equity,   from    taking   a   directly

contradictory position on appeal.             This argument hits home:      it

brings into bold relief the doctrine of judicial estoppel, under

which a litigant may be precluded "from prevailing in one phase of

a case on an argument and then relying on a contradictory argument

to prevail in another phase."           Pegram v. Herdrich, 530 U.S. 211,

227 n.8 (2000).          Such an equitable doctrine safeguards "the

integrity of the courts by preventing parties from improperly

                                     - 11 -
manipulating the machinery of the judicial system."                Alt. Sys.

Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004).

           Judicial estoppel is not to be applied by a court as a

matter of course but, rather, is to be applied at the court's

discretion.     See New Hampshire v. Maine, 532 U.S. 742, 750 (2001).

This discretion is not boundless.        See id.   Judicial estoppel must

be "applied with caution to avoid impinging on the truth-seeking

function of the court."        Perry v. Blum, 629 F.3d 1, 11 (1st Cir.

2010) (quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218

(6th Cir. 1990)).

           Here, however, judicial estoppel is a good fit.             Taken

element by element, the doctrine appears closely tailored to the

circumstances of the case, and the relevant equities weigh heavily

in favor of a straightforward application of judicial estoppel.

           It is settled that a party may be judicially estopped

when its current position is plainly inconsistent with its earlier

position, see New Hampshire, 532 U.S. at 750, such that the two

positions are "mutually exclusive," Alt. Sys. Concepts, 374 F.3d

at 33.     In addition, the party must have persuaded the first

tribunal   to   accept   its   earlier   position,   such   that    judicial

adoption "of an inconsistent position in a later proceeding would

create 'the perception that either the first or the second court

was misled.'"     New Hampshire, 532 U.S. at 750 (quoting Edwards v.

Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1990)); see Alt.

                                   - 12 -
Sys. Concepts, 374 F.3d at 33.   Finally, the court should consider

whether the party "seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped."5   New Hampshire, 532 U.S. at 751.

What counts most "is not whether a party . . . relied on the

[prior] position, but rather whether the court did so in reaching

its decision."     Rederford v. U.S. Airways, Inc., 589 F.3d 30, 38

(1st Cir. 2009).

          The first element of the judicial estoppel framework is

not open to serious question:     Lively all but concedes that his

position on appeal flatly contradicts the position that he took

below.   The second element is also satisfied.    An issue need not

always be decided explicitly but, rather, may sometimes be decided

implicitly, as when the resolution of that issue comprises, either

logically or practically, an essential part of the ordering court's

decision. See Stoehr v. Mohamed, 244 F.3d 206, 208 (1st Cir. 2001)

(per curiam). So it is here. The district court unarguably bought

what Lively was selling:     although it did not expressly address

the existence vel non of diversity jurisdiction in its dispositive

ruling, its dismissal of the action necessarily adopted Lively's

argument that diversity jurisdiction was lacking.       No more is

     5 We note that the presence of this third element, though
relevant, is "not a sine qua non" for the application of judicial
estoppel. Alt. Sys. Concepts, 374 F.3d at 33.

                                - 13 -
exigible to satisfy the second element.               See United States v.

Pakala, 568 F.3d 47, 60 (1st Cir. 2009).

           So,   too,   the   third   element   was    satisfied.   Lively

obtained a significant benefit from his disavowal of diversity

jurisdiction:     an order terminating the five-year-long federal

case against him and forcing SMUG to litigate outside its preferred

forum.

           To complete the picture, we do not believe either that

SMUG would obtain an undue benefit or that Lively would be unfairly

disadvantaged were we to apply judicial estoppel.           After all, both

sides remain free to litigate the state-law claims on the merits

in an appropriate forum.      Cf. United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966) (observing that state courts provide "a

surer-footed reading" of state law); Kando v. R.I. State Bd. of

Elections, 880 F.3d 53, 61 n.4 (1st Cir. 2018) (recognizing that

state courts are best equipped "to expand the frontiers of state

law").   Although Lively raises a gallimaufry of defenses to the

state-law claims under the First Amendment, our decision in no way

forecloses him from raising these merits-based defenses in state

court.   See Burt v. Titlow, 571 U.S. 12, 19 (2013).

           In this case, there is every reason to invoke judicial

estoppel — and no sound reason to discard it.                 We conclude,

therefore, that the doctrine of judicial estoppel operates to hold

Lively to his prior representations regarding the absence of

                                  - 14 -
diversity jurisdiction.          Thus, judicial estoppel bars Lively's

belated    effort    to   show   that   the   district    court,     even   after

dismissing the ATS claim, had an alternative basis for federal

subject-matter jurisdiction.

            Seeking to shift the trajectory of the debate, Lively

argues that principles of estoppel are inappropriate in the context

of subject-matter jurisdiction.           In support, he relies on the

proposition that subject-matter jurisdiction cannot be waived or

created by acquiescence.         See Gonzalez v. Thaler, 565 U.S. 134,

141 (2012); see also Lawless v. Steward Health Care Sys., LLC, 894

F.3d 9, 16 (1st Cir. 2018).        This proposition is unassailable:           it

arises out of a frank recognition that the boundaries of federal

subject-matter jurisdiction are circumscribed by Article III and

congressional action, with the result that a federal court may not

employ equitable doctrines in a manner that would gratuitously

enlarge federal judicial authority.           See Erie Ins. Exch. v. Erie

Indem. Co., 722 F.3d 154, 162-63 (3d Cir. 2013).

            Lively    overlooks,    though,     that     this   is   a   one-way

ratchet.    Even though federal subject-matter jurisdiction cannot

be established through waiver or estoppel, it may be defeated by

waiver or estoppel.       For example, a federal court is not required

to assume jurisdiction under a theory that a party has waived.

See Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 809 n.6

(1986); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d

                                    - 15 -
1091, 1101 & n.11 (9th Cir. 2002); Kale v. Combined Ins. Co. of

Am., 924 F.2d 1161, 1165, 1169 (1st Cir. 1991).                So, too, although

the doctrine of judicial estoppel cannot be applied to create

federal subject-matter jurisdiction that is otherwise lacking, it

may be applied to prevent a party from basing federal subject-

matter jurisdiction on facts that directly contradict his previous

representations to another tribunal.               See Lydon v. Bos. Sand &

Gravel Co., 175 F.3d 6, 12-13 (1st Cir. 1999).

              Lydon    guides     our   inquiry.     There,      we     deemed    it

appropriate to apply judicial estoppel in order to prevent a party

from gaining an advantage through "patently unfair" conduct that

was "destructive to the integrity of the judicial system."                  Id. at

13.       The same sort of situation obtains here:               Lively and his

counsel owed a duty of candor to the district court, see Nix v.

Whiteside, 475 U.S. 157, 174 (1986); see also Fed. R. Civ. P. 11;

they told that court that diversity jurisdiction did not exist;

and they secured a dismissal of the pending federal suit, partially

as    a    result     of   that   disclaimer.       When   a    party     makes   a

representation to a court, there is no unfairness in insisting

that he live with its consequences.                Accordingly, there is no

principled way in which we can now permit Lively to embrace a

directly contradictory position "simply because his interests have

changed."       New Hampshire, 532 U.S. at 749 (quoting Davis v.

Wakelee, 156 U.S. 680, 689 (1895)).                Any other outcome would

                                        - 16 -
"rais[e] the specter of inconsistent determinations and endanger[]

the integrity of the judicial process."           Alt. Sys. Concepts, 374

F.3d at 33.

         C. Refusal to Exercise Supplemental Jurisdiction.

             As a fallback, Lively complains that the district court

abused   its   discretion   in   declining   to    exercise   supplemental

jurisdiction over SMUG's state-law claims.          In Lively's view, the

court should have exercised such jurisdiction, resolved SMUG's

pendent claims in his favor, and dismissed them with prejudice.

             We have jurisdiction to review this plaint.         When the

district court declined to exercise supplemental jurisdiction, it

dismissed SMUG's state-law claims without prejudice.           See Lively

II, 254 F. Supp. 3d at 270-271.              We may hear a prevailing

defendant's appeal on a dismissal without prejudice when the

defendant argues that the case should have been dismissed with

prejudice.     See El Paso Nat. Gas Co. v. United States, 750 F.3d

863, 885 (D.C. Cir. 2014); Briscoe v. Fine, 444 F.3d 478, 495-96

(6th Cir. 2006); H.R. Techs., Inc. v. Astechnologies, Inc., 275

F.3d 1378, 1382 (Fed. Cir. 2002); Amazon, Inc. v. Dirt Camp, Inc.,

273 F.3d 1271, 1275-76 (10th Cir. 2001); Labuhn v. Bulkmatic

Transp. Co., 865 F.2d 119, 122 (7th Cir. 1988); see also 15A

Charles Alan Wright et al., Federal Practice and Procedure § 3914.6

(3d ed. 2018).    Such a defendant suffers a cognizable injury since

the decree, rather than terminating the litigation, subjects him

                                  - 17 -
to the risks of additional proceedings in state court.6            See Jarvis

v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1424-26 (10th Cir.

1993); Disher v. Info Res., Inc., 873 F.2d 136, 138-39 (7th Cir.

1989).

            Although Lively wins the jurisdictional battle over this

issue, he loses the war.           On the merits, we find his argument

unpersuasive.      The baseline rule is that the dismissal of a

foundational federal claim does not deprive a federal court of

authority    to   exercise      supplemental     jurisdiction   over    pendent

state-law claims.       See Lawless, 894 F.3d at 19.          Instead, such a

dismissal "sets the stage for an exercise" of the district court's

broad discretion.       Roche v. John Hancock Mut. Life Ins. Co., 81

F.3d 249, 256-57 (1st Cir. 1996). In such a situation, the factors

to be considered by a district court in determining whether to

exercise    supplemental     jurisdiction       include    "judicial   economy,

convenience, fairness, and comity."             Cohill, 484 U.S. at 350 n.7.

Additionally,     the   court    may    consider   other    relevant   factors,

including the presence of novel or sensitive issues of state law.

     6 Although there is a suggestion in one of our earlier cases
that a party may lack standing to appeal a without-prejudice
dismissal, see Kale, 924 F.2d at 1169 (dictum), this suggestion
was not made in a situation in which the complaining party was
arguing for a with-prejudice dismissal.       In any event, the
suggestion is dictum and, as such, lacks any binding effect. See
Dedham Water, 972 F.2d at 459.

                                       - 18 -
See Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.

1995); see also 28 U.S.C. § 1367(c)(1).

             Upon   the   pretrial   dismissal      of   SMUG's   foundational

federal claim, the district court assessed the appropriate mix of

factors.     It concluded that the balance of those factors favored

dismissal of the state-law claims.        See Lively II, 254 F. Supp. 3d

at 270-71.    In reaching this conclusion, the court emphasized that

the state-law claims raised sensitive and undeveloped questions of

state law.    See id.     Weighing everything in the balance, the court

declined to exercise supplemental jurisdiction over the state-law

claims and dismissed them without prejudice.              See id.   On whole-

record review, we discern no abuse of discretion in the district

court's declination of supplemental jurisdiction.

             Lively's asseveration that the district court should

have dismissed the state-law claims with prejudice rings hollow.

It is clear beyond hope of contradiction that a district court,

upon   appropriately         declining        to     exercise     supplemental

jurisdiction, must dismiss the unadjudicated state-law claims

without prejudice, not with prejudice.             See United States ex. rel.

Kelly v. Novartis Pharms. Corp., 827 F.3d 5, 16 (1st Cir. 2016).

The court below properly applied this prescription.

                                     - 19 -
                             D. A Loose End.

           There is one loose end.         Lively asks us to reverse the

district court's 2013 order denying his first motion to dismiss.

However, we lack jurisdiction to entertain this claim of error.

           As   we   have    said,   our    appellate   jurisdiction   is

ordinarily limited to the review of final orders and judgments.

See In re Shkolnikov, 470 F.3d at 24.         Under section 1291, "prior

interlocutory orders merge with the final judgment in a case, and

the interlocutory orders (to the extent that they affect the final

judgment) may be reviewed on appeal from the final order."         In re

Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996) (Alito,

J.).   By contrast, interlocutory orders that have no impact on the

final judgment are generally unreviewable.         See Hoefer v. Bd. of

Educ., 820 F.3d 58, 62 (2d Cir. 2016); Klamath Strategic Inv. Fund

ex rel. St. Croix Ventures v. United States, 568 F.3d 537, 546

(5th Cir. 2009).     This case falls within the general rule of non-

reviewability, not within any exception to it.

           Lively's first motion to dismiss was made under Federal

Rule of Civil Procedure 12(b).       When an order denying a Rule 12(b)

motion has no effect on the ultimate disposition of the case, that

order is unreviewable.      See Foy v. Schantz, Schantzman & Aaronson,

P.A., 108 F.3d 1347, 1350 (11th Cir. 1997).

           This is such a case.            Subsequent to the denial of

Lively's first motion to dismiss, see Lively I, 960 F. Supp. 2d at

                                 - 20 -
335,   Lively's    arguments   about   extraterritoriality   ultimately

prevailed:    the district court granted his summary judgment motion

and dismissed SMUG's ATS claim, see Lively II, 254 F. Supp. 3d at

271.   The district court's denial of Lively's first motion to

dismiss, therefore, "never ripened into a judgment and had no

effect on the outcome of the case."        Hoefer, 820 F.3d at 62-63.

As such, we lack jurisdiction to review it.      See Foy, 108 F.3d at

1350; cf. Ortiz v. Jordan, 562 U.S. 180, 183-84 (2011) (holding

denial of summary judgment unreviewable following full trial on

merits and verdict).

III. CONCLUSION

             We need go no further. For the reasons elucidated above,

we dismiss the appeal in part for want of appellate jurisdiction

and otherwise affirm the judgment below.      Costs shall be taxed in

favor of SMUG.

So Ordered.

                                 - 21 -


582 F.Supp.2d 434 (2008)
Becky A. PETTEY, Plaintiff,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant.
No. 07-CV-6428L.
United States District Court, W.D. New York.
October 15, 2008.
*435 Howard D. Olinsky, Olinsky & Shurtliff, LLP, Syracuse, NY, for Plaintiff.
John J. Field, U.S. Attorney's Office, Rochester, NY, for Defendant.

DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiff appeals from a denial of disability insurance benefits by the Commissioner of Social Security ("the Commissioner"). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner.
On May 17, 2004, plaintiff filed an application for supplemental security income benefits under Title II of the Social Security Act, alleging a disability onset date of July 1, 1999 due to depression, posttraumatic stress disorder ("PTSD"), panic disorder, and emphysema/asthma. Her application was initially denied. (T. 139, 168, 172). Plaintiff requested a hearing, which was held on September 12, 2006 via teleconference before Administrative Law Judge ("ALJ") Edward J. Banas. (T. 13-21). Following the hearing, the ALJ issued a decision on October 16, 2006, that plaintiff was not disabled under the Social Security Act. Id. That decision became the final decision of the Commissioner when the Appeals Council denied review on July 19, 2007 (T. 4-7). Plaintiff now appeals.

I. Standard of Review
To determine whether a claimant is disabled within the meaning of the Social Security Act, the ALJ proceeds through a five-step sequential evaluation. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful work activity. See 20 CFR § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination of impairments, that is "severe," e.g., that imposes significant restrictions on the claimant's ability to perform basic work activities. 20 CFR § 404.1520(c). If not, the analysis concludes with a finding of "not disabled." If so, the ALJ continues to step three.
At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the claimant's impairment meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR § 404.1509), the claimant is disabled. If not, analysis proceeds to step four, and the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or metal work activities on a sustained basis notwithstanding limitations for the claimant's collective impairments. See 20 CFR § 404.1520(e), (f). Then, the ALJ determines whether the claimant's RFC permits *436 him to perform the requirements of his past relevant work. If so, the claimant is not disabled. If not, analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled, by presenting evidence demonstrating that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of his age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999), quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986). See 20 CFR § 404.1560(c).
The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). "The Court carefully considers the whole record, examining evidence from both sides `because an analysis of the substantiality of the evidence must also include that which detracts from its weight.'" Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999) quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, "it is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).
Such a deferential standard, however, is not applied to the Commissioner's conclusions of law. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984). This Court must independently determine if the Commissioner's decision applied the correct legal standards in determining that the plaintiff was not disabled. "Failure to apply the correct legal standards is grounds for reversal." Townley, 748 F.2d at 112. Therefore, this Court is to first review the legal standards applied, and then, if the standards were correctly applied, consider the substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987) ("[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles"). See also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998).

II. Issues on Appeal
ALJ Banas's decision specifically articulated the findings supporting his decision. However, upon review, I find that the record upon which his decision was based is incomplete and inadequate, and the matter must be remanded for the purpose of gathering additional medical records and reports.
"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). See also Burger v. Astrue, 282 Fed.Appx. 883 (2d Cir.2008) (ALJ is obliged to develop the medical record fully in order to accurately assess a plaintiff's *437 RFC, whether or not plaintiff is represented by counsel).
The record in this case contains significant gaps. There are no treatment notes, RFC reports, or other relevant records from plaintiff's alleged treating general practitioner, Dr. Davis, nor did any of plaintiff's treating physicians submit an RFC questionnaire or other evidence specific to plaintiff's alleged functional limitations. Furthermore, there are no records of any kind from 2004-2006, the two-year period that elapsed between plaintiff's application and her hearing date. As such, the record upon which the ALJ's determination was made is insufficient. See Lamorey v. Barnhart, 158 Fed.Appx. 361, 362 (2d Cir.2006) (where ALJ fails to adequately develop the record by requesting treating physician's notes, remand for further proceedings is usually appropriate).
Based on the foregoing, I believe the ALJ failed to adequately develop the record, and the matter must be remanded for further proceedings.

CONCLUSION
The Commissioner's decision that plaintiff, Becky Pettey, was not disabled is reversed, and the matter is remanded for further proceedings. Upon remand, the Commissioner is instructed to gather medical records and request RFC reports from all of plaintiff's treating physicians, as well as to request plaintiff's medical records from 2004 to the present, and to redetermine plaintiff's disability status upon as full and complete a record as possible.
IT IS SO ORDERED.


838 F.2d 1220
Nolandv.Barton**
NO. 87-8296
United States Court of Appeals,Eleventh Circuit.
JAN 28, 1988

1
Appeal From:  N.D.Ga.

2
AFFIRMED.

**
 Local Rule:  36 case


336 So.2d 663 (1976)
Charles BRITTON, Appellant,
v.
STATE of Florida, Appellee.
No. Z-316.
District Court of Appeal of Florida, First District.
August 31, 1976.
*664 H. Randolph Fallin, Jacksonville, for appellant.
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
SMITH, Judge.
In Berry v. State,[1] we held "the totality of all of the circumstances" shown gave investigating officers probable cause to arrest and search, without warrants, four occupants of a parked car from which the odor of burning marijuana escaped through an open window. The issue here is application of the "plain smell" principle to dwellings as justification for arrest of those within.
Patrolling a Jacksonville neighborhood to investigate reports of a prowler, officers Hoffecker and Cook approached a house trailer after 10:00 p.m. to warn the occupants. Two automobiles were parked outside. Music could be heard from within. In response to officer Cook's knock on the door, a voice inside inquired "Who is it?" Cook replied, "Police," and appellant Britton opened the door a few inches. Both officers then smelled the emanating odor of burning marijuana. Britton said "Just a minute" and began to close the door, but officer Cook grabbed the door and arrested Britton. After the officers mounted the outside steps and as they crossed the threshold, they saw in the trailer a substantial quantity of marijuana and two other persons, whom they also arrested. Following denial of his motion to suppress the marijuana as evidence, Britton pleaded nolo contendere to possession of the contraband and appealed from the judgment and sentence.
The reasonableness of the marijuana seizure depends on the validity of the arrest, for it was pursuant and incidental to Britton's arrest that the officers mounted the steps and entered the trailer to seize contraband which became visible to them at the threshold. Mixon v. State, 54 So.2d 190 (Fla. 1951); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The State has not urged that the episode is explicable independently of the arrest, as a search based on probable cause and a seizure justified by exigency. In fact, the arrest brought the officers to and across the threshold from which the marijuana was visible, and it is that intrusion which must be justified by the arrest.
Absent a judicial warrant, exigency or other exceptional circumstances, the Fourth Amendment protects and makes effective a citizen's "reasonable expectation of privacy."[2] A warrantless incursion into a citizen's home is therefore subject to our most critical examination. Behind the door of his home a citizen has an expectation of privacy far surpassing his similar interest in his driveway,[3] front porch[4] or other parts of the curtilage. An automobile is not a home, but a man's house trailer is his castle.
Britton's arrest was predicated entirely on the smell of burning marijuana wafting from the trailer. Before his arrest, he was not seen in possession of any marijuana and the officers did not know how much marijuana  one cigarette or more  was in the *665 trailer. They did not know Britton's identity or whether he owned or was merely visiting the house trailer. They did not know how many persons were inside the trailer, nor their identity and relationship to Britton.
The precise issue before us, therefore, is whether Britton's presence at the door of the trailer where marijuana was being smoked was probable cause to believe that he was smoking it. "A defendant has constructive possession of contraband," it is said, "when he has knowledge of its presence coupled with his ability to maintain control over it or reduce it to his physical possession." Porter v. State, 302 So.2d 481, 483 (Fla.App. 3d, 1974); Spataro v. State, 179 So.2d 873, 877 (Fla.App. 2d, 1965). We decline to presume that all inhabitants and guests in a private home are in control and constructive possession of marijuana being smoked by one or merely some of them. Britton's movement to close the door once opened betrayed his consciousness that marijuana was in the place, but hardly was additional evidence of his possession of it. The officers' sense of smell reliably told them that marijuana was being consumed within, but it could not and did not identify Britton or any other occupant as a misdemeanant or felon. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Connolly, 479 F.2d 930, 936 (9th Cir.1973):
"Even certain knowledge that contraband is within a dwelling does not constitute probable cause to arrest whoever happens to be inside."
We therefore distinguish Berry v. State, supra, because a greater justification is required for a warrantless intrusion into the privacy of a home than for a similar intrusion into an automobile,[5] and because "the totality of all of the circumstances" in Berry was of an entirely different import. There a car containing four occupants was parked by the road after midnight, when 15 to 20 other persons had been discovered in the area smoking marijuana. The smell of marijuana at the open window gave the officers reason to believe that, as the presence of the car at that time and place was purposeful and the purpose was smoking pot, so also the occupants' presence then and there was for that purpose. A correlation of circumstances in Berry gave rise to probable cause to arrest the occupants. That was lacking here. This seizure was the fruit of Britton's unlawful arrest, and the evidence so taken should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1961).
REVERSED.
RAWLS, Acting C.J., and McCORD, J., concur.
NOTES
[1]  316 So.2d 72, 73 (Fla.App. 1st, 1975).
[2]  Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587 (1967) (concurring opinion).
[3]  See United States v. Magana, 512 F.2d 1169 (9th Cir.1975), cert. den., 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43.
[4]  See State v. Detlefson, 335 So.2d 371 (Fla. App. 1st, 1976).
[5]  Preston v. United States, 376 U.S. 364, 366-67, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964); Cooper v. Calif., 386 U.S. 58, 59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730, 732 (1967).


581 N.E.2d 696 (1991)
221 Ill. App.3d 260
163 Ill.Dec. 542
Daniel W. SHERWOOD, Plaintiff-Appellant,
v.
Joseph H. RIGSBY, III, Defendant-Appellee.
No. 3-90-0887.
Appellate Court of Illinois, Third District.
October 7, 1991.
*697 James R. Carter, Hafele, Thiemann & Carter, Peoria, for Daniel W. Sherwood.
Dwayne I. Morrison, Barash, Stoerzbach & Henson, P.C., Galesburg, for Joseph H. Rigsby, III.
Presiding Justice STOUDER delivered the opinion of the court:
The plaintiff, Daniel W. Sherwood, appeals from a judgment in favor of the defendant, Joseph H. Rigsby, which denied Sherwood's complaint for injunctive relief. Sherwood sought to enforce the terms of a restrictive covenant running with a parcel of real estate owned by Rigsby. We reverse and remand.
The record shows Sherwood is the owner of Lot 60 and the northern one-half of Lot 59 in the Fair Acres North Extension # 1 subdivision in Galesburg, Illinois. These two parcels combined are designated Lot 1 of the Sherwood-Swanson subdivision. Hereinafter, Sherwood's property will be referred to as Lot 1. Lot 1 is improved by a residence.
Rigsby is the owner of Lot 58 and the southern one-half of Lot 59 in the Fair Acres subdivision. These two undeveloped parcels are also known as Lot 2 of the Sherwood-Swanson subdivision, and will be referred to as Lot 2. In addition, Rigsby owns a tract of undeveloped real estate to the immediate east of Lots 1 and 2. Rigsby filed a proposed subdivision plat with the City of Galesburg to subdivide the real estate to the east of Lots 1 and 2 into eight parcels to be used for single family residences. As part of his plans, Rigsby proposed to build a public access street to his proposed development across Lot 2. All the parcels involved in this case are zoned single family residential.
Sherwood filed a petition for a temporary restraining order to enjoin construction of a street on Lot 2. By agreement of the parties an order granting the TRO was entered on August 8, 1990. Subsequently, Sherwood filed a Complaint for Injunction to enforce a restrictive covenant which governed the use of all lots in the Fair Acres subdivision.
Following a hearing, the trial court issued a lengthy opinion in which the court denied injunctive relief and dissolved the TRO.
On appeal, Sherwood contends the trial court erred in denying injunctive relief. Sherwood asserts the proposed use of Lot 2 *698 as a public street violates a provision of the restrictive covenants to which Lot 2 is subject.
Although restrictions on the use of property conveyed in fee are not favored, the court will enforce such restrictions where they are reasonable, clear, definite and not contrary to public policy. (Freehling v. Development Management Group, Inc. (1979), 75 Ill.App.3d 243, 30 Ill.Dec. 610, 393 N.E.2d 646.) The generalization that all doubts and ambiguities shall be resolved in favor of free use and against restrictions cannot be used to ignore or override specific language of a restrictive covenant. (Mertel v. Howard Johnson Company, Inc. (1989), 191 Ill.App.3d 114, 138 Ill.Dec. 503, 547 N.E.2d 670.) The person in whose favor a restrictive covenant runs is prima facie entitled to its enforcement. (Wier v. Isenberg (1981), 95 Ill. App.3d 839, 51 Ill.Dec. 376, 420 N.E.2d 790.) More importantly, it is well settled in Illinois that the mere breach of a covenant is sufficient grounds to enjoin the violation and plaintiff is not required to show injury. Freehling v. Development Management Group, Inc. (1979), 75 Ill.App.3d 243, 30 Ill.Dec. 610, 393 N.E.2d 646.
The covenant in the instant case provides: "All lots shall be used only for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height, with a private garage for not less than one nor more than three cars."
The trial court found the only issue was whether the proposed use of Lot 2 for a public street was contrary to the terms of the restrictive covenant. The trial court determined that given the fact Rigsby proposed to use Lot 2 for a public street, the language of the restrictive covenant was not clear and the purpose not obvious. In the written opinion, the court stated: "The obvious meaning of the initial sentence of paragraph (1) [quoted above] is that the property in the subdivision is to be used for residential purposes rather than commercial purposes or industrial purposes but the language of the restrictive covenant does not, in its plain and obvious meaning, prevent [Rigsby] from using the property as a street."
Having determined that the plain and obvious language of the restrictive covenant did not prevent the use of Lot 2 for a street, the trial court went on to determine the intent of the drafters of the covenant. The trial court concluded the covenant was not "intended to prevent the construction of a public street that would be used to serve residential property."
The parties agree there is no Illinois case which directly addresses the situation presented in the instant case. In addition, after reviewing the cases from other jurisdictions cited by the parties and the trial court, we find them of limited dispositive guidance.
However, we find extensive analysis unnecessary because we view the language of the restrictive covenant as clear and unambiguous. The covenant states that all lots in the subdivision "shall be used only for residential purposes." A street, although it may serve residential property, is not a "residential purpose" within the plain meaning of that term. Therefore we find the trial court erred in holding the language of the covenant was ambiguous, and in denying Sherwood injunctive relief to enforce the covenant. Given this conclusion, we need not address the other arguments raised by the parties.
For the foregoing reasons, the judgment of the circuit court of Knox County is reversed and the cause remanded for further proceeding consistent with this opinion.
Reversed and remanded.
BARRY and GORMAN, JJ., concur.


812 F.Supp. 93 (1993)
Theresa J. HAINES
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Crawford & Company and Joe Vallot.
Civ. A. No. H-92-2892.
United States District Court, S.D. Texas, Houston Division.
February 1, 1993.
*94 Donna Roth, Houston, TX, for plaintiff.
Michael J. Reviere, Benckenstein, Norvell & Nathan, Houston, TX, John L. Ross, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX, for defendant.

MEMORANDUM AND ORDER
CRONE, United States Magistrate Judge.
Pending before the Court is Plaintiff's Motion for Leave to File Motion for Remand (Docket Entry #4). After considering Plaintiff's motion, Defendant's response, and the supporting authority cited by the parties, this Court is of the opinion that Plaintiff's motion should be denied.

I. Background.

On August 18, 1992, Plaintiff Theresa J. Haines filed her First Amended Original Petition in the County Civil Court at Law No. 1 of Harris County, Texas. In her amended petition, Haines asserted claims for breach of the duty of good faith and fair dealing and intentional misconduct against Defendants, National Union Fire Insurance Company of Pittsburgh, Pennsylvania ("National Union") (an insurance carrier), Crawford & Company ("Crawford") (an adjusting firm), and Joe Vallot ("Vallot") (an employee of Crawford), seeking actual damages of $100,000 and punitive damages of $250,000.
On September 21, 1992, Defendants removed the state court action to federal court on the basis of diversity of citizenship and the requisite jurisdictional amount. Haines is a citizen of Texas. National Union is a Pennsylvania corporation with its principal place of business in New York. Crawford is a Georgia corporation with its principal place of business in Georgia. Vallot is a resident of Texas. On November 9, 1992, forty-nine days after the notice of removal was filed, Haines filed her motion for leave to file motion for remand, alleging that this case is nonremovable under 28 U.S.C. § 1445(c) because it arises under the Texas workmen's compensation laws and that the joinder of Vallot, a Texas resident, precludes removal and destroys diversity jurisdiction.

II. Analysis.

Haines' motion for leave to file motion to remand was not filed within thirty days after the filing of the notice of removal, as required by 28 U.S.C. § 1447(c). Because it was untimely, Haines waived any objections she might have had to the removal process or to the removability of the underlying action, as long as the action could have been brought in federal court originally. See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543-44 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991); In re Shell Oil Co., 932 F.2d 1518, 1528 (5th *95 Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992). Haines' contention that removal is precluded by 28 U.S.C. § 1445(c) relates to the removability of the underlying proceeding, not to subject matter jurisdiction, and cannot now be raised. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc). In fact, the Supreme Court has recognized that a case seeking workers' compensation benefits, although nonremovable under § 1445(c), may be brought originally in federal court if other jurisdictional prerequisites are met. See Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 352, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961). Hence, even assuming that § 1445(c) prohibited removal of this case, Haines waived her right to object to this defect by her failure to object timely pursuant to 28 U.S.C. § 1447(c). See Neurological Studies & Treatment Found. v. National Union Fire Ins. Co., No. 3-92-CV-1416-H (N.D.Tex. Sept. 7, 1992); Enriquez v. National Union Fire Ins. Co., No. DR-91-CA-0049 (W.D.Tex. Dec. 31, 1991); Cook v. Shell Chem. Co., 730 F.Supp. 1381, 1382 (M.D.La.1990).
Notwithstanding the procedural bar, 28 U.S.C. § 1445(c) does not preclude the removal of this case because Haines does not allege a statutory cause of action under the workmen's compensation laws of Texas. Instead, Haines' claim of breach of the duty of good faith and fair dealing is a common law cause of action which arises apart from any right to recover for a job-related injury under the Texas Workers' Compensation Act. See Aranda v. Insurance Co. of Am., 748 S.W.2d 210, 215 (Tex. 1988). The main premise of this cause of action is that the insurance carrier's lack of good faith, separate and independent from the original job-related injury, proximately caused damages. Id.; Izaguirre v. Texas Employers' Ins. Ass'n, 749 S.W.2d 550, 553 (Tex.App.  Corpus Christi 1988, writ denied). The damages Haines seeks are extra-contractual damages for independent torts causing injuries distinct from injuries compensable under the Workers' Compensation Act, such as damages to her credit, reputation, and ability to secure employment. See Rodriguez v. American Gen. Fire & Cas. Co., 788 S.W.2d 583, 586 (Tex. App.  El Paso 1990, writ denied).
The purpose of § 1445(c) is to insure that state courts have the primary responsibility for interpreting and applying workers' compensation laws. Unlike the various provisions of the Texas Workers' Compensation Act, such as those applicable to Haines' workers' compensation claim which is before the state court in a separate action, the duty of good faith and fair dealing is a judicially-created obligation owed by all insurers and applicable to all policies of insurance.[1]Id. at 212. Thus, many bad faith claims have nothing to do with the Workers' Compensation Act.[2] To single out bad faith claims based upon a wrongful denial of workers' compensation benefits for disparate treatment, by preventing their removal, would unnecessarily expand the reach of § 1445(c). See Bittner v. Transp. Ins. Co., Nos. G-92-265 and G-92-318 (S.D.Tex. Oct. 5, 1992). Therefore, because this case does not arise under the Texas Workers' Compensation Act, but apart from it, § 1445(c) presents no bar to its removal.[3]Roach v. Transcontinental *96 Ins. Co., No. H-92-1790 (S.D.Tex. Nov. 5, 1992); Bittner v. Transp. Ins. Co., Nos. G-92-265 and G-92-318 (S.D.Tex. Oct. 5, 1992); Neurological Studies & Treatment Found. v. National Union Fire Ins. Co., No. 3-92-CV-1416-H (N.D.Tex. Sept. 7, 1992); Ross v. United States Fire Ins. Co., No. 4-91-800-K (N.D.Tex. Apr. 21, 1992); Bastian v. Travelers Ins. Co., 784 F.Supp. 1253, 1256 (N.D.Tex.1992); Powers v. Travelers Ins. Co., 664 F.Supp. 252, 254 (S.D.Miss.1987).
Because Haines' challenge to diversity jurisdiction goes to subject matter jurisdiction, it remains viable despite the untimeliness of her motion to remand. Defendants contend, however, that Vallot was fraudulently joined and should be disregarded when assessing the applicability of diversity jurisdiction and determining the propriety of removal. See Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 101-02 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990); Alcom Elec. Exch., Inc. v. Burgess, 849 F.2d 964, 969 (5th Cir.1988); Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979); Villar v. Crowley Maritime Corp., 780 F.Supp. 1467, 1473 (S.D.Tex.1992). In order to establish fraudulent joinder, the removing party must show either that there was no possibility that plaintiff would be able to establish a cause of action against the instate defendant or that there has been outright fraud in plaintiff's pleading of jurisdictional facts. Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989); Robinson v. National Cash Register Co., 808 F.2d 1119, 1123 (5th Cir.1987); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981); Villar, 780 F.Supp. at 1473. The determination of the question of fraudulent joinder is based on the causes of action alleged in the complaint as it existed at the time of removal. See Tedder, 590 F.2d at 116; Coughlin v. Nationwide Mut. Ins. Co., 776 F.Supp. 626, 628 (D.Mass. 1991); Ford v. Murphy Oil U.S.A., Inc., 750 F.Supp. 766, 769 (E.D.La.1990); Gray v. United States Fidelity & Guar., 646 F.Supp. 27, 29 (S.D.Miss.1986). See also Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 349, 83 L.Ed. 334 (1939); FSLIC v. Griffin, 935 F.2d 691, 696 (5th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1163, 117 L.Ed.2d 410 (1992); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir.1991); In re Carter, 618 F.2d 1093, 1101 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981).
This Court finds that based on Haines' first amended original petition, there is no possibility that she will be able to establish a cause of action against Vallot. The only cause of action alleged by Haines against Vallot is that he and the other defendants violated a duty of good faith and fair dealing and engaged in intentional misconduct by refusing or delaying payment of workers' compensation benefits. While Texas law imposes a duty of good faith and fair dealing on insurance carriers and possibly on adjusting firms, the duty does not extend to individual employees of adjusting firms, such as Vallot. Roach v. Transcontinental Ins. Co., No. H-92-1790 (S.D.Tex. Nov. 5, 1992); Bittner v. Transp. Ins. Co., Nos. G-92-265 and G-92-318 (S.D.Tex. Oct. 5, 1992); Bracy v. Liberty Mut. Fire Ins., Co., No. 3-91-1172-T (N.D.Tex. Aug. 20, 1991); Natividad v. Alexsis, Inc., 833 S.W.2d 545, 548 (Tex.App.  El Paso 1992, writ granted); Hartford Cas. Ins. Co. v. Walker Cty. Agency, 808 S.W.2d 681, 686 (Tex.App.  Corpus Christi 1991, no writ).
Generally, an agent is not personally liable on contracts made on behalf of his principal, if the agent was acting within the scope of his authority. Corpus Christi Dev. Corp. v. Carlton, 644 S.W.2d 521, 523 (Tex.App.  Corpus Christi 1982, no writ). When an agent exceeds his authority under the agency agreement, he becomes personally liable. See Schwarz v. Straus-Frank Co., 382 S.W.2d 176, 178 (Tex.Civ.App.  San Antonio 1964, writ ref'd n.r.e.). An agent may also be held liable for misrepresentations to an insured and for certain deceptive trade practices. See GAB Business Services v. Moore, 829 S.W.2d 345, 349 (Tex.App.  Texarkana 1992, no writ); State Farm Fire & Cas. Co. v. Gros, 818 *97 S.W.2d 908, 913 (Tex.App.  Austin 1991, no writ). In the instant case, where there are no allegations in the pleadings that Vallot was acting outside the scope of his authority, that he made misrepresentations to Haines, or that he engaged in deceptive trade practices, there is no basis upon which he could be found personally liable. See Bittner v. Transp. Ins. Co., Nos. G-92-265 and G-92-318 (S.D.Tex. Oct. 5, 1992); Lane v. CNA Ins. Co., No. A-92-CA-006 (W.D.Tex. Aug. 7, 1992). Vallot owed a duty only to his employer, Crawford, a duty that would be inconsistent with any alleged duty owed to Haines. Id. In addition, Vallot neither issued the insurance policy nor contracted with the carrier to provide adjusting services. Therefore, there is no contractual basis upon which a duty to Haines may attach to Vallot. See Natividad, 833 S.W.2d at 548. Moreover, Haines failed to identify specifically any actionable acts or omissions of Vallot individually or to set forth any facts indicating a special relationship between Haines and Vallot. See Bracy v. Liberty Mut. Fire Ins. Co., No. CA-3-1172-T (N.D.Tex. Aug. 20, 1991). Thus, Vallot's presence in the suit may be disregarded for diversity and removal purposes. As a result, this Court has subject matter jurisdiction over the instant case.[4]

III. Conclusion.

This case was properly removed by Defendants. By failing to file her motion to remand on a timely basis, Haines waived any right to object to removability based on 28 U.S.C. § 1445(c) or on any procedural defect. Because this case does not arise under the Texas workers' compensation laws, § 1445(c) does not preclude removal. Vallot was fraudulently joined as a defendant and may be ignored for jurisdictional purposes, thus presenting no impediment to removal. Therefore, Plaintiff's Motion for Leave to File Motion for Remand is DENIED. Accordingly, Defendants' Motion to Stay Order of Remand and to Certify Controlling Questions (Docket Entry # 1) is DENIED as moot.
IT IS SO ORDERED.
NOTES
[1]  Because the duty of good faith and fair dealing is a judicially-created, common law cause of action, the court's reasoning in Jones v. Roadway Express, 931 F.2d 1086 (5th Cir.1991), which involves a statutorily based cause of action prohibiting retaliation against workers' compensation claimants, is not applicable.
[2]  Although Haines' ability to recover in this suit may hinge upon whether she is awarded workers' compensation benefits in state court, it does not mean that her bad faith cause of action arises under the Texas workers' compensation laws. Often, the liability of an insurance company may depend upon the outcome of an underlying proceeding. If the carrier refuses to pay and the insured brings suit for breach of the carrier's duty of good faith and fair dealing, it cannot be said that the resulting suit arises under the substantive law of the prior action. But see Almanza v. Transcontinental Ins. Co., No. 3-92-CV-1619-H (N.D.Tex. Oct. 1, 1992).
[3]  The decisions of the courts in Allsup v. Liberty Mut. Ins. Co., 782 F.Supp. 325 (N.D.Tex.1991) and Watson v. Liberty Mut. Fire Ins. Co., 715 F.Supp. 797 (W.D.Tex.1989) are inapposite, as they involve bad faith claims joined with workers' compensation claims for job-related injuries.
[4]  Haines' efforts in her brief in support of the motion for remand to inject other potential causes of action to defeat removal are unavailing. Because there was no jurisdictional infirmity at the time the case was removed, Haines cannot oust the court of jurisdiction by later asserting new causes of action. See Pfeiffer, 929 F.2d at 1488; Henry v. Indep. Am. Sav. Ass'n., 857 F.2d 995, 998 (5th Cir.1988); Bank IV Salina, N.A. v. Aetna Cas. & Sur. Co., 783 F.Supp. 1315, 1317 (D.Kan.1992); Robinson v. Quality Ins. Co., 633 F.Supp. 572, 577 (S.D.Ala.1986); Comstock Ceiling v. Morgan, 165 F.Supp. 798, 801 (D.Mo.1958).


                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                                 No. 02-17-00236-CR

MYRON JAMAL NASH                           §    On Appeal from

                                           §    Criminal District Court No. 1

                                           §    of Tarrant County (1482186D)
V.
                                           §    September 20, 2018

                                           §    Opinion by Justice Gabriel

THE STATE OF TEXAS                         §    (nfp)

                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that there

was no error in the trial court’s judgment. It is ordered that the judgment of the trial

court is affirmed.

                                      SECOND DISTRICT COURT OF APPEALS

                                      By /s/ Lee Gabriel
                                         Justice Lee Gabriel


244 Or. 145 (1966)
416 P.2d 318
PRINCE ET UX
v.
DIERKS ET UX, THOMPSON ET AL
Supreme Court of Oregon.
Argued May 5, 1966.
Affirmed as modified June 29, 1966.
*147 Howard R. Lonergan, Portland, argued the cause and submitted a brief for appellant Roland Barker.
George P. Winslow, Tillamook, argued the cause for appellants M.L. Schmidt and Beatrice Schmidt. On the briefs were Winslow & Winslow, Tillamook.
Douglas E. Kaufman, Tillamook, argued the cause for respondents. On the brief were McMinimee & Kaufman, Tillamook.
Before McALLISTER, Chief Justice, and PERRY, DENECKE, SCHWAB and HAMMOND, Justices.
AFFIRMED AS MODIFIED.
SCHWAB, J. (Pro Tempore).
This is a suit for strict foreclosure of a contract for the purchase of a dairy farm. Plaintiffs sold to Mr. and Mrs. Dierks who in turn assigned to Mr. and Mrs. Thompson. The Thompsons assigned to Barker who took possession. Barker, as security for a loan of money, assigned to the defendants, Mr. and Mrs. Schmidt. The contract contained a provision forbidding assignments without written consent of the sellers. Plaintiffs contend that the assignment from the Thompsons to Barker and the subsequent assignment from Barker to the Schmidts was without their oral or written consent.
The court entered an interlocutory decree which purportedly was a decree of strict foreclosure as to all defendants, allowing a 15-day redemption period. The final decree of the court, which was entered 18 *148 days later, provided that all the right, title and interest of all of the defendants to the real and personal property covered by the contract was strictly and finally foreclosed and granted judgment against the defendants Thompson and against the defendant Barker for $5,000 attorney's fees.
The defendants Schmidt make numerous assignments of error which resolve themselves into three categories:
(1) The court erred in overruling defendants Thompson and Schmidt's demurrer to plaintiffs' complaint.
(2) The court erred in granting plaintiffs' motion to strike portions of defendants Schmidt's second amended answer.
(3) The court erred in striking all of defendants' answers.
On appeal the defendants Thompson join with defendants Schmidt in their first assignment of error. Defendant Barker appeals solely on the grounds that the provision of the contract providing for an award of reasonable attorney's fees in the event of a default was not applicable to him.
1. We turn to the first assignment of error, the overruling of the demurrer. Defendants Schmidt argue that the demurrer to the complaint should have been sustained because the complaint did not state grounds for strict foreclosure. The defendants Thompson did not file a separate brief, filing only a statement that they joined with the defendants Schmidt in their assignments of error and supporting arguments relative to the demurrer.
We need not consider whether the defendants *149 Schmidt have any standing to raise this assignment of error, for defendants Thompson do have such standing.
2. At the time of trial plaintiffs filed a supplemental complaint alleging default in payment of taxes and principal and interest occurring between the filing of the first complaint and the filing of the supplemental complaint. The original complaint did not contain such allegations. The defendants Thompson and Schmidt argue that a supplemental complaint cannot be used to remedy the deficiencies of a complaint. We do not reach this question because we find that the original complaint did state a cause of suit for strict foreclosure.
The contract was for the purchase of real and personal property comprising an operating dairy farm. The complaint alleged numerous defaults by the vendees consisting of breach of covenants relating to repairs, painting, maintenance and operation of the dairy farm and covenants dealing with the maintenance at certain minimum levels of the inventory of cattle and equipment. The contract provided that time was of the essence and further provided, "but if the purchasers shall fail to make the payments or to perform any other condition or undertaking by them to be performed by the terms of this agreement, * * * the vendors may elect to declare this agreement ended and repossess * * * and all sums paid by the purchasers * * * shall be retained by the vendors * * *." (Emphasis supplied.)
Defendants argue that a vendor may not maintain a suit to strictly foreclose a contract except for failure of the vendees to make payments as required by the contract, citing Conners v. Winans, 122 Misc 824, 204 *150 NYS 142, 146 (1924). In the Conners case the court said:
"* * * Equity dislikes forfeitures, and it is for this reason and for the further reason that where there is an adequate remedy at law that equity will not decree foreclosure for the breach of an independent covenant."
While there are no Oregon cases considering whether strict foreclosure can be decreed in the absence of default in the payment of principal or interest or taxes, there is language in several cases indicating that there is no valid distinction between failure to pay interest, insurance or taxes as called for by the contract and the failure to comply with any other covenant materially affecting the security of the vendor.
In Williams v. Barbee, 165 Or 260, 106 P2d 1033, a vendor brought suit to quiet title to timber lands. The vendee had agreed to log eight million feet during each of the first two years of the contract and failed to do so. Time was made the essence of the agreement, which stipulated that in event of a default by the purchaser the sellers could terminate the agreement. This court, speaking through Mr. Justice LUSK, stated:
"These are stipulations which the parties had the right to adopt, and if the intention to make time of the essence of the contract is unmistakably apparent, the contract will take effect according to its terms, and be binding in equity as well as at law. * * * Not only is the language used wholly free from ambiguity or uncertainty in this respect, but the fulfillment by the purchaser of his agreement to log 8,000,000 feet a year was a matter of importance to the plaintiffs, since it was the substantial assurance of prompt payment of the purchase price agreed upon." 165 Or at 272-73.
*151 The situation in Williams v. Barbee is distinguishable from the case at bar in that the purchase price was to be paid as the timber was sold so that failure to cut resulted in late payments. Nevertheless, the opinion points out that the parties have the right to contract as they see fit and having bound themselves to material covenants free from ambiguity or uncertainty, those covenants will be binding in equity as well as in law.
3. Here the complaint alleged that the contract purchasers, by violation of material covenants dealing with maintenance, repairs, operation and inventory, were destroying the vendors' security. It stated a cause of suit and it was for the trial judge upon hearing and weighing the evidence to determine whether there was a breach justifying strict foreclosure.
4. The next issue raised by the defendants Schmidt charges the court with error in striking portions of their second amended answer. The portions stricken fall into two general categories; (1) allegations of fraudulent conspiracy on the part of plaintiffs and the defendant Barker, and (2) allegations charging that the plaintiffs did not come into a court of equity with clean hands.
The defendants Schmidt's second amended answer was a 13-page document containing a general denial and eight affirmative defenses. The sixth separate answer and defense began, "Defendants are informed and believe and based upon information and belief, now allege that plaintiffs and defendant * * *." The answer then goes on to allege fraudulent conspiracy. This method of pleading falls within the proscription of North v. Union Savings & Loan Assn., 59 Or 483, 492-93, 117 P 822, where the court stated:
"As a general rule, it is not sufficient to charge *152 a fraud upon information and belief without giving the ground upon which the belief rests or stating some fact from which the court can infer that the belief is well founded. Further, our code requires a plain statement of the facts constituting the cause of suit, and these facts should be stated positively. The verification is to the effect that the plaintiff verily believes the complaint to be true. When a party alleges in his complaint that he believes a certain fact to be true, and in his verification swears that he believes his complaint to be true, the effect of the whole is that he has sworn that he believes that the allegation is the truth, which is an absuridity. A charge for perjury could not be predicated upon a verification of this character if false. `An allegation of fraud made upon the information and belief cannot be sustained unless the facts upon which the belief is founded are stated in the pleading.' 10 Encyc. Pl. & Pr. 855, and cases there cited. This is a mere fishing allegation and should be disregarded." 59 Or at 492-493.
The court properly struck this defense  it alleged no facts in support of the allegation of information and belief.
5, 6. The remainder of the stricken material consisted of allegations designed to show that the plaintiffs did not come into court with clean hands. This court has declared that the "clean hands" maxim is not strictly a matter of defense, but is invoked on the grounds of public policy and for the protection of the integrity of the court. Taylor et ux v. Grant et al, 204 Or 10, 279 P2d 479, 1037, 281 P2d 704. In Dickerson v. Murfield, 173 Or 662, 147 P2d 194 we held that since one must do equity as a condition to obtaining relief, the defendant in an equity case need not plead plaintiff's failure to do equity in order to present evidence of plaintiff's lack of "clean hands." In Hubbard v. *153 Olsen-Roe Transfer Co., 110 Or 618, 224 P 636 we held that matters specially pleaded should be stricken as redundant if admissible under a general denial. It follows that while it is not necessarily reversible error to fail to strike such material, no prejudice can result from the order striking.
7. We next consider the charge that the trial court exceeded its powers in striking all of the defendants Schmidt's answers and in entering an order of default against them. The plaintiffs, with leave of court, filed a supplemental complaint. Next, the demurrer to the plaintiffs' complaint and supplemental complaint was overruled. Then the Schmidts filed an answer to the complaint and supplemental complaint which they denominated as a "SECOND AMENDED ANSWER * * *." The motion against the second answer was in 36 separate parts, 19 of which were allowed by the trial court. The order of the trial court entered on December 14, 1964, provided:
"The defendants M.L. Schmidt and Beatrice Schmidt, his wife, are hereby ordered to file an amended pleading complying with the foregoing provisions of this order within ten (10) days hereof, and in the event that said defendants do not so replead within the time allowed by this order, said defendants' entire answer will be stricken from the files and records of this case."
On December 28, 1964, the Schmidts filed a "THIRD AMENDED ANSWER." The opening paragraph of the third amended answer contained reference to the ruling of the court as to the second amended answer and also contained the following:
"Defendants for a sixth further and separate answer and defense allege:
"(Paragraphs I to XI inclusive stricken)
"* * * * *

*154 "Answering defendants for an eighth further and separate defense allege:
"(All stricken)"
At a hearing discussing motions against the third amended answer on January 18, 1965, Judge Musick stated:
"Now, Mr. Winslow, this next time, I simply say this to you, the Court is tired of having these matters inserted in these Complaints that don't belong there. Now you've had notice of it and this is the last time that the Court is going to warn you against inserting in these records anything pertaining to these separate defenses which the Court ordered stricken.
"* * * * *
"* * * In view of the fact that this matter has been raised on these motions, I am going to require that the defendant Schmidt file his Answer within seven days from the date of the Order." (Emphasis supplied.)
In a hearing conducted on February 8, 1965, to rule on plaintiffs' motion to strike defendants' entire amended answer and counterclaim, Judge Musick summarized the actions of the defendants as follows:
"* * * Now this Court, by Order dated December 14th, 1964, ordered that the defendant Schmidt file an Amended Answer in this matter, deleting and striking the Sixth, Seventh and Eighth Separate Answer and Defenses from the Second Amended Answer filed by Schmidt, and directed that that Amended Answer be filed within ten days, complying with the Order of this Court.
"Now then, despite this Order of the Court, defendant Schmidt filed a Third Amended Answer containing references to the Sixth, Seventh and Eighth Separate Answers and Defenses which had been previously stricken from the Second Amended *155 Answer, thereby attempting to incorporate the same indirectly in the pleadings despite the Court Order to the contrary. This made necessary another hearing, which was held on the 18th day of January, 1965. The Court at that time was concerned that the defendant Schmidt may have been possibly confused and, in order to be fair, requested that he file another pleading in the case, the same to be filed within seven days. Now the defendant Schmidt has wholly failed to file within the seven days of the Order.
"An Order was entered on the 19th day of January, 1965. It was entered in the court records on the 21st day of January, 1965, and the defendant Schmidt has wholly failed and neglected to comply with this Order, and has ignored the same.
"Now if the defendant is requesting that this Court do equity, he must do equity, and his continued violation of the Order of this Court can lead the Court only to believe that such violation is done for the purpose of delay, and the matter for delay may cause irreparable damage. And for those reasons this Court is granting the motion to strike the whole of defendant Schmidt's Answer and Defense in this case, and that an order of default may be entered accordingly.
"I so rule."
The statute authorizing the Judge's actions, ORS 16.400 (2) provides:
"(2) In all cases where part of a pleading is ordered stricken, the court, in its discretion, may require that an amended pleading be filed omitting the matter ordered stricken. By complying with the court's order, the party filing such amended pleading shall not be deemed thereby to have waived the right to challenge the correctness of the court's ruling upon the motion to strike, and such ruling shall be subject to review on appeal from final judgment in the cause."
*156 8. Defendants Schmidt, without citing any authority, argue:
"The statutory provision, ORS 16.400, for the filing of an amended pleading, eliminating allegations stricken, does not apply when the trial is before the court."
This is not a correct statement of the law. The statute does not differentiate between jury and non-jury proceedings. There is no valid reason why court and counsel are not just as entitled to an understandable pleading as is a jury.
9. Defendants Schmidt argue that even if the court properly struck the third amended answer, it had no power to enter an order of default. The second amended answer was in actuality the only document filed in answer to the complaint and supplemental complaint. It was properly stricken. It follows that if the order of the court striking the third amended answer was proper, the Schmidts, by failing to plead further, were in the position of offering no defense to plaintiffs' contentions.
"Failure to plead to a supplemental complaint warrants a judgment by default." 3 Bancroft, Code Practice and Remedies § 1795, p. 2358.
In Mack v. Hendricks, 126 Or 400, 270 P 476, the defendant filed an amended answer which included the same averments contained in the stricken answer. The second answer was stricken from the file on motion of the plaintiff as being in violation of the order of the court and a decree was then entered against the defendant. The language we used in affirming the trial court in that case has equal application in the case at bar.
"* * * Striking the same from the files as *157 frivolous was in consonance with the orderly administration of justice. * * * After the amended answer was stricken from the files, there was no further pleading interposed on the part of the defendant and the decree was properly rendered on motion of plaintiff, as for want of answer * * *." 126 Or at 403.
We need not consider whether the allegations under the sixth and eighth affirmative defenses of the third amended answer were, in effect, a repleading of matter previously ordered stricken. Even if this is technically not the case, the allegations should have been stricken as frivolous, if not as impertinent.
The trial court displayed great patience in giving the Schmidts an opportunity to comply with its orders. If the court had been wrong on its rulings on the motions, the last sentence of ORS 16.400 (2) adequately protected Schmidts' rights to appeal from those rulings at the proper stage of the proceedings. By disobeying the court's orders they chose  perhaps for want of a better defense  to risk all on their position that the trial court's rulings on the motions against the pleadings were incorrect. The court's rulings were proper, consequently the order of default and decree entered pursuant thereto must stand.
With regard to the appeal of the defendant Barker, he is correct in his contention that the court erred in assessing attorney's fees against him. The only basis for the award of attorney's fees was the contract provision that the purchasers would pay to the vendors reasonable attorney's fees incurred by the vendors in enforcing any of the covenants of the contract.
10. Plaintiffs alleged that the contract was breached when the vendees' interest was assigned to Barker without vendors' consent being first obtained *158 in accordance with contractual provisions. The prayer of the complaint did not ask for strict foreclosure against Barker, but asked that he be barred from asserting any rights under the contract. A suit for strict foreclosure is a suit to enforce a contractual obligation. Atkochunas v. Gustafson, 156 Or 126, 66 P2d 1192. The plaintiffs cannot enforce the provision of a contract against a defendant not privy to the contract. Since this was not a suit to enforce the contract as against the defendant Barker, there is no legal basis on which to require him to pay attorney's fees.
Except as to the provision awarding attorney's fees against defendant Barker, the decree is affirmed in all respects.
Affirmed as modified.