Brotherhood of Locomotive Eng. v. Denver & RGWR Co.

• Decision Date: 09 September 1968
• Parties: BROTHERHOOD OF LOCOMOTIVE ENGINEERS, a Labor Organization, Plaintiff, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Brotherhood of Locomotive Firemen & Enginemen, a labor organization, National Mediation Board, an Executive Agency of the Federal Government, Howard G. Gamser, Leverette Edwards and Francis A. O'Neill, Jr., members of the Mediation Board, Defendants.
• Court: U.S. District Court — District of Colorado

290 F. Supp. 612

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, a Labor Organization, Plaintiff, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Brotherhood of Locomotive Firemen & Enginemen, a labor organization, National Mediation Board, an Executive Agency of the Federal Government, Howard G. Gamser, Leverette Edwards and Francis A. O'Neill, Jr., members of the Mediation Board, Defendants.

Civ. A. C-717.

United States District Court D. Colorado.

September 9, 1968.

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Philip Hornbein, Jr., Denver, Colo., and Harold A. Ross, Cleveland, Ohio, for plaintiff Brotherhood of Locomotive Engineers.

Kenneth D. Barrows, Jr., Denver, Colo., for defendant Denver & R. G. W. R. Co.

Alden T. Hill, Fort Collins, Colo., and Harold C. Heiss and Donald W. Bennett, Cleveland, Ohio, for defendant Brotherhood of Locomotive Firemen & Enginemen.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Dept. of Justice, Washington, D. C., and Lawrence M. Henry, U. S. Atty., Denver, Colo., for defendants National Mediation Bd., Howard G. Gamser, Leverett Edwards and Francis A. O'Neill, Jr.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on the motions to dismiss of the defendant National Mediation Board (hereinafter referred to as the NMB) and its individual members and the defendant Brotherhood of Locomotive Firemen & Enginemen (hereinafter referred to as the BLF&E).

I.

The NMB asserts two grounds for dismissal: 1) lack of personal jurisdiction and 2) improper venue.

The objection to personal jurisdiction arises from the fact that the NMB and its members were not personally served within the territorial limits of the District of Colorado. Rather, these parties were served by delivering copies of the summons and complaint to the United States Attorney for the District of Colorado, sending copies of the summons and complaint by certified mail to the NMB and its members in the District of Columbia, and sending copies of the summons and complaint by certified mail to the United States Attorney General in the District of Columbia. The NMB thus urges that this Court lacks jurisdiction over the person of the Board and its members by virtue of Rule 4(f) of the Federal Rules of Civil Procedure which provides that "all process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state."

The NMB further urges that 28 U.S.C. § 1391(e) is here unavailable as a statutory exception to the limitation of Rule 4(f). That section contains expanded venue provisions for actions in which each defendant is a federal officer, employee, or agency and further provides that in such actions service shall be made "as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." In the present action, service was had in compliance with section 1391(e) and Rule 4(d) (5), but the NMB contends that such service was to no avail since "each" defendant is not a federal officer or agency.

Though the literal wording of the statute and one case which follows that literal wording, Chase Savings & Loan Ass'n v. Federal Home Loan Bank Board, 269 F.Supp. 965 (E.D.Pa.1967), support the NMB's position, this Court is of the opinion that the absurd result which derives from such a construction should be avoided and that instead the spirit and purpose of section 1391(e) should be adhered to in accord with the decision in Powelton Civic Home Owners Ass'n v. Department of Housing & Urban Dev., 284 F.Supp. 809 (E.D.Pa.1968).

The evident legislative purpose behind section 1391(e) was simply to alleviate the burdensome situation under prior service and venue rules which could force a plaintiff suing federal officers or agencies to bring his action in the District of Columbia regardless of other circumstances, see U.S.Cong. & Admin. News, 2784-90 (1962), and to deny its applicability in the instant case would serve no apparent end. Further, acceptance of defendants' tendered interpretation would likely make it impossible for plaintiff to prosecute in a single suit an action such as the present at all since the defendants other than the NMB could probably not be served in the District of Columbia nor would venue properly lie in that district as to those other defendants.

As was stated in the Powelton case,

Since the consequence of the defendants' argument is so inconsistent with the apparent intent of Section 1391(e), we believe it is appropriate to look beyond the literal language of the provision; and we conclude that the requirement that "each defendant" be a federal defendant refers only to defendants who are beyond the forum's territorial limits. Thus the joining of a non-federal defendant located within the forum's territorial limits and adequately served under F.R.Civ. P. 4(f) has no effect on the applicability or operation of Section 1391(e). Indeed, any other conclusion would appear entirely illogical. Section 1391 (e), as an exception to Rule 4(f), is an authorization of extra-territorial service of process. Its force begins to operate only when Rule 4(f) cannot provide adequate service. It would be absurd to conclude that the operative force of the provision is abrogated by the presence of an additional defendant who can be adequately served within the power of Rule 4(f). The presence of parties who can and have been served under Rule 4(f) is simply not relevant to the extra-territorial operation of Section 1391(e). 284 F.Supp. at 833-834.

Since section 1391(e) is properly applicable in the instant case, the defendant NMB's objection to venue must also fall. As against the NMB particularly, venue is proper in this district under section 1391(e) by virtue of plaintiff's residence here; unincorporated associations are to be viewed, for venue purposes, as residents of any district where they are doing business. See Denver & Rio Grande Western R. R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967). Venue is also proper against the NMB and all other defendants under section 1391(b) and (e) since it is in this district that the cause, or causes, of action, if any, arose.

Manifestly, such is the case as to claims detailed in part II of this memorandum against the defendant railroad and union. And it is also the conclusion of the Court that any claim that might exist against the NMB for injunctive relief should also be considered as arising in this district. Though the particular action which plaintiff seeks to enjoin would be taken in the District of Columbia where the NMB is headquartered, the impact and operation of any such action would be felt in this district and it is here, therefore, that the cause of action arises. Cf. Montana-Dakota Utilities Co. v. Public Service Commission of Montana, 111 Mont. 78, 107 P.2d 533 (1940); Cecil v. Superior Court, 59 Cal.App.2d 793, 140 P.2d 125 (1943). "It is not the mere making of the order, but the place where it is put in operation, that determines where the cause of action arose." Montana-Dakota Utilities Co. v. Public Service Commission of Montana, 111 Mont. 78, 107 P.2d 533, 534 (1940).

II.

In addition to matters going to the presence of the NMB in this action which are disposed of in the foregoing, the defendant BLF&E seeks dismissal on the following grounds: 1) lack of subject matter jurisdiction and 2) failure to state a claim for relief.

In essence, plaintiff Brotherhood of Locomotive Engineers' (hereinafter referred to as the BLE) complaint alleges the following: A special board of adjustment, Public Law Board No. 137, has been established at the instance of the defendant BLF&E. Under the opinion of a procedural neutral member and the pursuant agreement, dated January 31, 1968, this Board has asserted jurisdiction to consider the claims and disputes of certain employees of the Denver & Rio Grande Western Railroad Company (hereinafter referred to as the railroad), which claims arose in the course of employment in the craft of locomotive engineers, for which craft the plaintiff BLE is the duly authorized collective bargaining agent under the Railway Labor Act, 45 U.S.C. § 151 et seq., as amended, and involve the interpretation and application of the collective bargaining agreement executed on behalf of that craft by the plaintiff BLE. However, the Court understands and plaintiff's counsel admits in his brief and oral argument, that these employees, though employed in the craft of locomotive engineers at the time their claims arose, are members of the defendant BLF&E and have therefore authorized that union rather than the BLE to represent them in their grievances.

Plaintiff contends that a special board of adjustment convened at the instance of the BLF&E and composed of a representative of that union, the railroad, and, should they be unable to agree, a neutral member on the merits appointed by the NMB, is, under the Railway Labor Act, 45 U.S.C. § 153, Second, without jurisdiction to consider employee grievance claims arising out of employment in the craft of locomotive engineers and which involve interpretation and application of the collective bargaining agreement executed on behalf of that craft by the plaintiff BLE, even though the particular employees involved are not members of the BLE. Plaintiff further contends that to allow a board so constituted and on which plaintiff is without representation or power of decision to make a determination binding on the rights of plaintiff and its members would constitute a violation of due process of law under the Fifth Amendment.

Therefore, plaintiff asks that this Court...