Westinghouse Electric Corp. v. UNITED ELEC. R. & M. WKRS.

• Decision Date: 21 February 1952
• Docket Number: No. 10524.,10524.
• Citation: 194 F.2d 770
• Parties: WESTINGHOUSE ELECTRIC CORP. v. UNITED ELECTRICAL RADIO AND MACHINE WORKERS OF AMERICA et al.
• Court: U.S. Court of Appeals — Third Circuit

194 F.2d 770 (1952)

WESTINGHOUSE ELECTRIC CORP. v. UNITED ELECTRICAL RADIO AND MACHINE WORKERS OF AMERICA et al.

No. 10524.

United States Court of Appeals Third Circuit.

Argued January 8, 1952.

Decided February 21, 1952.

David Scribner, New York City (Donner & Kinoy, New York City, Gross & Blumberg and Morton Stavis, Newark, N. J., Frank J. Donner, Arthur Kinoy, and Marshall Perlin, New York City, on the brief), for appellants.

Bertram Diamond, Washington, D. C. (Benjamin C. Sigal, Washington, D. C., Wilner & Wilner, Pittsburgh, Pa., on the brief), for International Union of Electrical Radio and Machine Workers et al.

John C. Bane, Jr., Pittsburgh, Pa. (Donald B. Heard, Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., on the brief), for Westinghouse Electric Corp.

Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.

HASTIE, Circuit Judge.

In this case a defendant is asking us to review the normally discretionary action of a court of first instance in granting a plaintiff's motion to discontinue and dismiss his suit before trial.

The plaintiff, Westinghouse Electric Corporation, a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania and plants in other states, instituted this suit as an action of strict interpleader under Section 1335 of Title 28, United States Code. It deposited in the registry of the district court about $270,000 representing union dues collected pursuant to a labor relations contract from its employees in its plants in several states. It impleaded United Electrical Radio and Machine Workers of America and subordinate locals, hereinafter UE, and a rival international union, International Union of Electrical Radio and Machine Workers, (CIO), and subordinate locals, hereinafter IUE, as adverse claimants of the fund. After answers had been filed, Westinghouse moved to dismiss its suit without prejudice. With defendant IUE consenting and defendant UE objecting, the court granted the plaintiff's motion. The UE group has appealed.

The appellants urge that the disposition of plaintiff's motion is affected by Section 1404 of Title 28 of the United States Code which confers upon district courts broad discretion to transfer actions to a more convenient forum. But plaintiff did not invoke the power of the court under this section and we find that power quite distinct from the power invoked and employed. What plaintiff asked for and obtained was the voluntary discontinuance of its own suit, a procedure regulated and controlled by Rule 41 (a) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.

Rule 41(a) (2) provides that after answer, unless all parties consent, "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." An order of dismissal entered pursuant to this provision, like such an order entered under the equity practice which preceded the new Rules, should not be disturbed on appeal of the defendant except for arbitrary action which has subjected the defendant to plain prejudice beyond the prospect of subsequent litigation. Home Owners Loan Corporation v. Huffman, 8 Cir., 1943, 134 F. 2d 314; see Cone v. West Virginia Paper Co., 1947, 330 U.S. 212, 217-218, 67 S.Ct. 752, 91 L.Ed. 849. The dismissal here left the objecting defendants in position essentially no different from that they occupied before the suit was filed. The district court found no prejudice to their interests and we find none.

On the other hand, on granting the motion the district court pointed out in a considered and detailed opinion how the plaintiff who instituted this action as one of strict interpleader was confronted by answers of all the defendants claiming that more was...