Donnelly Garment Co. v. INTERNATIONAL LADIES'GWU

• Citation: 47 F. Supp. 67
• Decision Date: 19 September 1942
• Docket Number: No. 2924.,2924.
• Parties: DONNELLY GARMENT CO. et al. v. INTERNATIONAL LADIES' GARMENT WORKERS' UNION et al. (DONNELLY GARMENT WORKERS' UNION et al., Interveners).
• Court: U.S. District Court — Western District of Missouri

47 F. Supp. 67

DONNELLY GARMENT CO. et al. v. INTERNATIONAL LADIES' GARMENT WORKERS' UNION et al. (DONNELLY GARMENT WORKERS' UNION et al., Interveners).

No. 2924.

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

September 19, 1942.

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.

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

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

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

These defendants are proceeding in the above-entitled action under Section 7 of the Norris-LaGuardia Act, 29 U.S.C.A. § 107, against the plaintiffs and the interveners and the Central Surety and Insurance Company, surety, seeking to recover a claim for $104,305.53 damages alleged to have been caused by reason of the erroneous issuance of injunctions in a suit brought by these plaintiffs against these defendants under the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq. For convenience, the plaintiffs and the interveners will be referred to as the plaintiffs. It has been determined that the court was without jurisdiction to issue the injunctions, and they therefore have been vacated and set aside. Plaintiffs, in responding to the claim thus filed under Section 7 of the Norris-LaGuardia Act, seek to counterclaim in damages based upon alleged wrongful acts of the defendants. In brief, it may be stated that the alleged wrongful acts are substantially the same as those which formed the basis for the proceeding under the Sherman Act and as to which equitable relief was finally denied on account of lack of jurisdiction. International Ladies' Garment Workers' Union et al. v. Donnelly Garment Co. et al., 8 Cir., 119 F.2d 892; Id., 8 Cir., 121 F.2d 561. Therefore, we have the anomalous situation where plaintiffs now seek affirmative relief by way of a counterclaim against the defendants in a proceeding in which they were denied relief because there was no Federal jurisdiction. There are several cogent and impelling reasons why the counterclaim cannot be sustained.

I. The pertinent portion of Section 7 of the Norris-LaGuardia Act reads: "The undertaking mentioned in this section shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing in this section contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity."

It will be observed that, where injunctive relief has been granted and subsequently denied by the court, the aggrieved party may proceed in the same proceeding upon a hearing to assess damages, or he may proceed by an independent action. These defendants chose to proceed in this action, and in conformity with an order of this Court, filed a petition so that the plaintiffs might be apprised of the claim and the extent and character thereof. It is to this claim that plaintiffs seek to lodge their counterclaim. The proceeding to assess damages on account of the erroneous issuance of the injunctions is not an independent action or proceeding. It is merely the last step in an action wherein jurisdiction was based upon the Sherman Act. And Federal jurisdiction now exists to assess damages by reason of the authority of Section 7 of the Norris-LaGuardia Act. The hearing contemplated by Section 7 is in effect nothing more than an expansion of the proceeding looking to the taxation of costs by one who, under the law, is permitted to tax costs against the defeated party. The hearing, therefore, contemplated by Section 7 must be limited to a determination of the damages to be assessed against the plaintiff. Nothing more is contemplated. It will be observed that the only notice to which the plaintiff or the surety is entitled is a reasonable one. Presumably, defendants could have proceeded by notice of motion, giving plaintiffs and the surety reasonable notice and setting the...