Donnelly Garment Co. v. Dubinsky

• Decision Date: 19 September 1942
• Docket Number: No. 2924.,2924.
• Citation: 47 F. Supp. 65
• Parties: DONNELLY GARMENT CO. et al. v. DUBINSKY et al. (DONNELLY GARMENT WORKERS' UNION, Intervener).
• Court: U.S. District Court — Western District of Missouri

47 F. Supp. 65

DONNELLY GARMENT CO. et al. v. DUBINSKY et al. (DONNELLY GARMENT WORKERS' UNION, Intervener).

No. 2924.

District Court, W. D. Missouri, W. D.

September 19, 1942.

James A. Reed, Robert J. Ingraham, and William S. Hogsett, all of Kansas City, Mo., for plaintiffs.

Emil Schlesinger, of New York City, Charles A. Horsky and John T. Sapienza, both of Washington, D. C., and Clif. Langsdale, of Kansas City, Mo. (Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., of counsel), for defendants.

Gossett, Ellis, Dietrich & Tyler, of Kansas City, Mo., for interveners.

NORDBYE, District Judge (Acting under special assignment to the Western District of Missouri.)

Plaintiffs' position may be summarized as follows: That while the basis of jurisdiction differs, the factual issues now to be heard and determined do not materially differ from those which were heard and determined in the former trial, which consumed nearly six weeks of time. Plaintiff asserts, therefore, that the rights of all parties will be safeguarded if, at the trial hereof, the present record of some 2,628 printed pages be received in evidence with permission to either party to supplement such record by additional evidence.

After the remand of this proceeding from the Circuit Court, 8 Cir., 121 F.2d 561, this Court granted plaintiffs permission to dismiss as to the resident defendants and to amend their complaint predicating jurisdiction on the grounds of diversity of citizenship. This proceeding, like the first, seeks injunctive relief against the remaining defendants on account of certain alleged acts of fraud, violence and secondary boycott. However, in the first proceeding no jurisdiction existed as to any of the defendants. This action is bottomed on entirely new grounds of jurisdiction. The parties are different. The present defendants are retained only in their individual capacity, rather than as officials of the Union. The Union is no longer a party. All of these matters weigh heavily in determining whether plaintiffs' motion should be granted. First, however, the query arises as to whether or not this Court has any authority to grant the motion, or whether it is bound to afford the present defendants a new trial. It is clear that the Circuit Court in its remand did not assume to determine whether a new trial must be had upon some or all of the issues under the dismissals and amendments which might be granted by the trial court. Anent that question, however, it made reference to Levering & Garrigues Co. v. Morrin, 2 Cir., 61 F.2d 115, and Dollar S. S. Lines, Inc., et al. v. Merz, 9 Cir., 68 F.2d 594. In both of these cases, no jurisdiction existed when the trial was had, because diversity of citizenship did not appear or exist. In the Morrin case, the lack of jurisdiction was based on insufficient allegations of citizenship as to the defendant labor Unions. Jurisdiction did exist, however, as between the plaintiffs and some of the defendants. The court, therefore, concluded (page 121 of 61 F.2d): "* * * The District Court should have leave to allow the plaintiffs to amend by dismissing as against the locals, or by inserting appropriate allegations to show that none of their members was a citizen of New Jersey or Pennsylvania when the bill was filed, if such be the fact. If the former alternative be adopted, there is authority for allowing the record to stand as already taken, and to enter a decree thereon against the individuals, provided it appears that all the evidence remains equally admissible with the dismissed defendants out. Interstate Refineries, Inc., v. Barry 8 Cir, 7 F.2d 548, 550; Atchison, T. & S. F. R. Co. v. Gilliland 9 Cir., 193 F. 608; Fitchburg R. Co. v. Nichols 1 Cir., 85 F. 869; Maddox v. Thorn 5 Cir., 60 F. 217; Williams v. Great Southern Lumber Co., D.C.E.D.La., 13 F.2d 246 reversed on other grounds in 5 Cir., 17 F.2d 468, 470."

In the Merz case, it affirmatively appeared that two of the defendants were citizens of the same State as the plaintiffs. Leave, however, was granted plaintiffs to amend by dismissing as to these two defendants, thereby establishing jurisdiction as to the remaining defendants. The majority of the court held, however, that if the dismissals were entered as permitted, the trial court had no discretion but to grant a new trial. The teachings of the Merz case in this regard were followed in Atchison, T. & S. F. R. Co. v. Francom, 9 Cir., 118 F.2d 712. The Ninth Circuit has therefore unmistakably indicated that, where no jurisdiction actually existed, a new trial must follow if subsequent amendment or dismissal as to certain parties will create jurisdiction. But there is, in addition, this difference between the present situation and the cases just cited: Here, there was an utter lack of jurisdiction as to all of the defendants under the Sherman Act, 15 U.S.C.A. § 1 et seq. Dismissal as to some of the defendants could not create or invoke jurisdiction without an amendment of the pleadings asserting entirely new grounds of Federal jurisdiction. Where no jurisdiction existed or could exist on the grounds originally asserted, by amendment or otherwise, against any of the defendants, it seems extremely doubtful that the evidence taken under such circumstances could be resuscitated for any purpose.

But if discretion does exist, it seems inescapable that the peculiar circumstances herein will permit no other course but to require an entire new trial on the issues as framed between the present parties....