DAY-BRITE LIGHTING DIV., EMERSON ELECTRIC CO. v. INTERNATIONAL BRO. OF ELEC. WKRS.

• Decision Date: 25 August 1969
• Docket Number: No. EC 6939-K.,EC 6939-K.
• Citation: 303 F. Supp. 1086
• Parties: DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, a Labor Organization and Its Constituent, International Brotherhood of Electrical Workers, Local No. 1028, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

303 F. Supp. 1086

DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, a Labor Organization and Its Constituent, International Brotherhood of Electrical Workers, Local No. 1028, et al., Defendants.

No. EC 6939-K.

United States District Court N. D. Mississippi, E. D.

August 25, 1969.

COPYRIGHT MATERIAL OMITTED

James Hugh Ray, Tupelo, Miss., for plaintiff.

Dixon Pyles, Jackson, Miss., Adams, Long & Adams, Tupelo, Miss., Hoyt Elliott, Jasper, Ala., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

Plaintiff, a Missouri corporation and citizen of that state, instituted suit in the Chancery Court of Lee County, Mississippi, seeking injunctive and general relief against two unincorporated labor organizations, International Brotherhood of Electrical Workers, AFL-CIO and IBEW, Local No. 1028, five individual defendants who were Mississippi citizens and one individual who was a citizen of Alabama. The individual defendants were also sued as representatives of the class consisting of all members of the two labor organizations. The suit in state court alleged that upon expiration of a collective bargaining agreement between plaintiff and IBEW, Local No. 1028, defendants began engaging in certain activity to force plaintiff to enter into a new collective bargaining contract by picketing its plant at Tupelo, Mississippi, interfering with railroad and truck lines attempting to enter plaintiff's plant for doing business with plaintiff, and by committing certain acts of violence, at least one of which resulted in the arrest of nine defendant union members by Tupelo police officers when they undertook to block with their bodies the passage of a switch engine of the Gulf, Mobile and Ohio Railway Company into plaintiff's plant. Other allegations charged mass picketing at entrances to plaintiff's plant and intimidation and obstruction of common carriers, their employees and others from serving plaintiff's business. The state court issued an injunction without notice restraining defendants from any acts other than peaceful picketing to be conducted by maintaining not more than two pickets at each of the four entrances to plaintiff's plant. Defendants removed the case to federal court and have moved to dissolve the ex parte injunction. Plaintiff's motion to remand to state court is now before this court for decision.

Defendants assert the existence of federal jurisdiction upon two grounds: (1) diversity of citizenship; and (2) the existence of a federal question. The amount in controversy undeniably exceeds the jurisdictional minimum as the value of the rights sought to be protected by plaintiff, including the protection of its plant and business relations, greatly exceeds the sum of $10,000.

It is evident that the suit is not maintainable in federal court because of diversity of citizenship. Even if the suit, as urged by defendants, is treated as a class action as to defendant labor organizations and citizenship of defendants is to be determined only by that of the individuals designated for the class, the fact is that five individual parties who have been properly joined and served as defendants are Mississippi citizens. In considering removability, it is not enough that there simply exists a complete diversity of citizenship, but it must also appear that none of the defendant parties in interest, properly joined and served, is "a citizen of the State in which such action is brought". The concluding sentence of 28 U.S.C. § 1441(b) plainly restricts diversity jurisdiction, in removal cases, to a nonresident defendant or defendants. A clear discussion on this point appears in 1A Moore's Federal Practice, 0.161(1), p. 527 as follows:

"If a civil action could be maintained originally in the federal court on the basis of diversity as discussed above, then subsection (a) of § 1441 standing alone would warrant removal of such an action when brought in the state court, for § 1441(a) keys removal to original jurisdiction. But subsection (b) of § 1441 introduces a qualifying principle. Even though diversity exists so that a federal court would have original jurisdiction of a suit, § 1441(b) is limiting in character in that it makes the state action removable `only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.' In this situation a citizen who is sued in the courts of his state is not given an option to shift to the federal forum."¹ (Emphasis added)

The Fifth Circuit Court of Appeals in Monroe v. United Carbon Co., 196 F.2d 455 (5 Cir. 1952), expressly alludes to the fact that § 1441(b) is "an instance where the removal jurisdiction of the federal court is narrower than its original jurisdiction."

Defendants urge that in a class action the concluding sentence of 28 U.S.C. § 1441(b) is not applicable. They are utterly mistaken in their view; there is no warrant in the law for such a holding, and the Fifth Circuit Court of Appeals, in cases relied upon by defendants, has, in fact, held to the contrary. For example, in Lowry v. International Brotherhood, etc., 259 F.2d 568 (5 Cir. 1958), Judge Rives, speaking for the Court said as follows:

"If the association is sued or sues as an entity under Rule 17(b), citizenship is determined by the individual members; if the association is a class party under Rule 23(a) conceded to be the situation here, the representatives named must have complete diversity from the other side."

In Lowry, federal jurisdiction was lacking since the labor organization was not sued as a class party but as a separate entity, and citizenship had to be determined by looking at that of all of the members of the union, some of whom were Mississippi citizens. Thus removability was defeated. In the case at bar, even though the labor organizations are sued as a class party, removability is defeated on the ground of diversity of citizenship because some of the representatives of the class are citizens of Mississippi. Calagaz v. Calhoon, 309 F. 2d 248 (5 Cir. 1962), strongly relied upon by defendants does not support their position. That case holds, consistently with Lowry, that where a labor union is sued as a class party, citizenship is to be determined by looking only at the named representatives. In an action brought originally in federal court by Calagaz, a citizen of Alabama, on behalf of himself and others, against defendants who were nonresidents of Alabama, federal jurisdiction was held to exist, since there was complete diversity. The limitation on removability, as described above, was not in any way involved. The only significant difference, as concerns federal diversity jurisdiction, between suing a labor organization as an entity or in a class action is that in the former instance the citizenship of an unincorporated labor union is that of each of its members, United Steel Workers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965), while in the latter case, involving a class action, citizenship of such an association is determined by reference to the representatives named in the case. Lowry v. International Brotherhood, etc., supra; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 148 F.2d 403 (4 Cir. 1945). See Rule 17(b) and 23(a) (1) F.R.Civ.P. To adopt defendants' reasoning that in any case where, due to its nature as a class action, the suit is removable if only complete diversity of citizenship exists would be to effectually repeal the concluding sentence of § 1441(b). But the restriction may not be ignored, nor its fairness questioned by this court. It is enough to conclude that plaintiff might have brought this suit originally in federal court as a class action without having that jurisdiction defeated by the existence of one or more Missouri members of the union, and also, as the action has been initiated by plaintiff in state court, defendants would have had the right of removal on ground of citizenship diversity if no named defendant was a Mississippi citizen. This recognition gives full effect to the operation of the class action rule as it relates to federal diversity of citizenship; and no more than that is required or even suggested by the federal cases.

However, defendants' assertion of federal jurisdiction arising from existence of a federal question is well founded. The district courts have jurisdiction over actions arising under "any Act of Congress regulating commerce", 28 U.S.C. § 1337. The Labor Management Relations Act (LMRA), 29 U.S.C. § 141 et seq., constitutes such a federal enactment. § 187 of that Act provides that it shall be unlawful "in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b) (4) of this title", and that anyone injured in his business or property by reason of any such violation may sue in any district court of the United States without respect to the amount in controversy and "shall recover the damages by him sustained * * *." A suit of this type is known as a § 303 action.

To determine the presence of a federal question, it must appear from allegations disclosed upon the face of plaintiff's suit, unaided by defendants' answer or petition for removal, that the claimed right or immunity will be either supported or denied depending upon the construction or effect given by the court to the Constitution or laws of the United States. Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). "The federal question must clearly appear on the face of the declaration or complaint as an essential and integral part of plaintiff's statement of his own case, not in anticipation of a defense that may be interposed by an adversary party." Armstrong v. Alliance Trust Co., 126 F.2d 164, 167, (5 Cir. 1942). Where a federal claim...