Montgomery Ward & Co. v. Langer

• Decision Date: 28 May 1948
• Docket Number: No. 13668.,13668.
• Citation: 168 F.2d 182
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: MONTGOMERY WARD & CO., Inc. v. LANGER et al.

168 F.2d 182 (1948)

MONTGOMERY WARD & CO., Inc. v. LANGER et al.

No. 13668.

Circuit Court of Appeals, Eighth Circuit.

May 28, 1948.

John A. Barr, of Chicago, Ill. (Elton L. Marshall, of Kansas City, Mo., Stuart S. Ball and Brooks Wynne, both of Chicago, Ill., and Watson, Ess, Barnett, Whittaker & Marshall, of Kansas City, Mo., on the brief), for appellant.

Harry C. Clark, of Kansas City, Mo. (Keith U. Martin, of Kansas City, Kan., on the brief), for appellees.

Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment dismissing the plaintiff's (appellant's) complaint in a libel action brought to recover $1,350,000 as compensatory and punitive damages. At the time of the entry of judgment there were 72 defendants, who are now the appellees. The action is against them in their individual capacity and as members of United Retail, Wholesale and Department Store Employees of America, C. I. O. (hereafter called "the International Union"), and as members of United Retail, Wholesale and Department Store Employees of America, Local 131 (which will be referred to as "the Local Union"), and as representatives of the entire membership of those two unincorporated associations or labor unions. Jurisdiction is based on diversity of citizenship. In so far as the action purports to be a class action, it is founded upon Rule 23(a) (1) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., following section 723c, which reads as follows:

"Rule 23. Class Actions.

"(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

"(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it."

The record on appeal, pertaining to the challenged judgment, consists of the complaint, various motions of defendants to dismiss, a motion of the plaintiff to dismiss as to some of the defendants originally named, which was granted by the District Court, a memorandum opinion of the court that the action cannot be maintained as a class action, an order that it be dismissed unless an amended complaint be filed by the plaintiff "wherein its action shall not purport to be a class action," and the final judgment of dismissal.

In its complaint the plaintiff originally named the two unions and 80 individuals as defendants. The complaint, in substance, alleges that the two unions are voluntary unincorporated associations with offices and agents in Kansas City, Missouri; that the International Union has several thousand members; that the Local Union is chartered by and affiliated with the International Union and has several hundred members, who are also members of the International Union; that the defendants Langer, Myers, Swanson and Henners are respectively the President, Vice-President, Financial Secretary and Recording Secretary of the Local Union and are residents of Jackson County, Missouri; that the two defendants Chevlin are employees and agents of the International Union and the Local Union and residents of Jackson County, Missouri; that the individual defendants are all residents of that County and are sued in their individual capacity and as members of the International Union and of the Local Union "and as members of a class representing all other members of said associations"; that the members of each of the unions are so numerous as to make it impracticable to bring them all before the court, and that the members named as defendants fairly insure the adequate representation of all; that the plaintiff is a resident and citizen of Illinois, and the defendants are residents and citizens of the Western District of Missouri; that the matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000; and that the libels, which are set out in 27 separate counts of the complaint, were maliciously published in Jackson County, Missouri, by the defendants in their individual and representative capacities and by the membership of the two unions. In each count of the complaint, the plaintiff prays for judgment against the defendants for $25,000 compensatory damages and an equal amount of punitive damages.

The Local Union filed a motion to dismiss the complaint on the grounds: (1) That, under Missouri law, the Union could not be sued; (2) that it had been improperly served with process; and (3) that the controversy was not wholly between citizens of different states. The International Union filed a similar motion on similar grounds. The defendant Grant Miller filed a motion to dismiss on the grounds that he was a resident of Kansas, that the action was not maintainable against him in Missouri, and that complete diversity of citizenship did not exist. The other defendants moved to dismiss for lack of requisite diversity of citizenship.

After these motions were filed, the plaintiff dismissed the action as to the two unions and eight of the defendants, including Grant Miller. Thereafter the only issue of law raised by the defendants' motions to dismiss was whether the District Court lacked jurisdiction because complete diversity of citizenship did not exist between the parties.

After considering the defendants' motions to dismiss the court entered the following order:

"Order of District Court that Motion to Dismiss will be Sustained unless Plaintiff files an Amended Complaint.

"The motion to dismiss in the above entitled cause having been taken up for consideration and it appearing from an examination of the pleadings that the plaintiff has endeavored to proceed in an action at law under the provisions of Rule 23, Federal Rules of Civil Procedure, relating to class actions.

"And It further Appearing that the action of plaintiff cannot be maintained as a class action, and that the motion to dismiss should be sustained unless plaintiff on or before the 15th of September, 1947, shall file an amended complaint wherein its action shall not purport to be a class action. This order conforms to that made in Farmers Co-op. Oil Co. v. Socony-Vacuum Oil Co. 8 Cir., 133 F.2d 101.

"Kansas City, Missouri, June 20, 1947."

This was followed by the judgment from which this appeal is taken, which reads as follows:

"Final Judgment.

"Plaintiff's motion to dismiss as to certain defendant filed January 21, 1947, is sustained.

"The plaintiff having failed to file an amended complaint within the time provided in the order of the court made herein on June 20, 1947, the motions to dismiss filed by various defendants on September 17, 1945, October 6, 1945, October 22, 1945, and December 1, 1945, are hereby sustained and the action is dismissed. Judgment against plaintiff for costs.

"Dated this 18th day of September, 1947."

Were it not for the memorandum opinion of the District Court, the only inference that could be drawn from the record would be that, because the plaintiff did not amend its complaint in conformity with the order of June 20, 1947, so as to assert a claim only against the defendants as individuals, the complaint was dismissed by the court for lack of a requisite diversity of citizenship. The opinion of the District Court, however, which is set out in full in the margin,¹ indicates that, although the right of the plaintiff to maintain its action in part as a class action was not challenged by any motion to dismiss, the court considered that question and based its dismissal of the action upon the ground that Rule 23 of the Federal Rules of Civil Procedure did not apply to such a case. Upon the record presented, we think that there are only two questions which properly may be considered by this Court on review:

1. Does Rule 23(a) (1) of the Federal Rules of Civil Procedure apply to an action such as this?

2. Does the record show to a legal certainty that there is a lack of the requisite diversity of citizenship?

In reviewing the first of these questions, there are a number of considerations which must be kept in mind. Questions of law not presented to or passed upon by a trial court will not ordinarily be considered on appeal. Trapp v. Metropolitan Life Insurance Co., 8 Cir., 70 F.2d 976, 981, and cases cited. Upon motions to dismiss a complaint on the ground that the claim stated is not maintainable, the allegations of the complaint must be accepted as true. Postal Telegraph Cable Co. v. City of Newport, 247 U.S. 464, 474, 38 S.Ct. 566, 62 L.Ed. 1215; Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 133; Donnelly Garment Co. v. International Ladies' Garment Workers' Union, 8 Cir., 99 F.2d 309, 312, 316; Railway Express Agency v. Jones, 7 Cir., 106 F.2d 341, 343. We are required to view the case pleaded in the aspect most favorable to the plaintiff and most unfavorable to the defendants. Donnelly Garment Co. v. International Ladies' Garment Workers' Union, supra, 99 F.2d page 316. If, in view of what is alleged in the complaint, it reasonably can be conceived that the plaintiff could upon a trial make a case which would entitle it to some relief, its complaint should not have been dismissed. Donnelly Garment Co. v. International Ladies' Garment Workers' Union, supra, 99 F.2d page 312; Publicity Building Realty Corporation v. Hannegan, 8 Cir., 139 F.2d 583, 586, 587; Dennis v. Village of Tonka Bay, 8 Cir., 151 F.2d 411, 412, 413, and cases cited. It is not for an appellate court to indulge in speculation as to facts which, if established, would defeat the class suit theory upon which an action is brought. Railway Express Agency, Inc., v. Jones, 7 Cir., 106 F.2d 341, 343. A suit cannot properly be dismissed as not...