Fay v. American Cystoscope Makers
| Decision Date | 04 May 1951 |
| Citation | 98 F. Supp. 278 |
| Parties | FAY v. AMERICAN CYSTOSCOPE MAKERS, Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Frank Scheiner, New York City, for plaintiff. Morton Friedman, New York City, of counsel.
Satterlee, Warfield & Stephens, New York City, for defendant American Cystoscope Makers, Inc. F. W. H. Adams and David Asch, New York City, of counsel.
Plaintiff moves to remand. In the complaint filed in the New York Supreme Court, three causes of action are set forth.
The first cause of action substantially charges a conspiracy among the defendants, American Cystoscope Makers, Inc., a New York corporation (hereafter, Cystoscope), Max Sanchez, individually and as president of Local 1614, International Brotherhood of Electrical Workers, AFL (hereafter Local 1614), and Milton Silverman, individually and as business manager of Local 1614. The object of the conspiracy alleged to have been entered into deliberately and with malice is asserted to be the destruction of Local 475, United Electrical Radio and Machine Workers of America (hereafter Local 475) of which plaintiff is president. This purpose, it is alleged, was to be achieved in part by inducing Cystoscope to breach and by Cystoscope breaching a collective bargaining contract which it entered into with Local 475 — a contract, which by its terms is not to expire until June 1, 1951, and with respect to which Local 475 has duly performed all conditions and obligations required to be performed on its part.
The second cause of action, after repeating the allegations of the first cause of action, charges in effect that the defendants, Sanchez and Silverman, individually and as officers of Local 1614, with knowledge of the collective bargaining agreement knowingly and maliciously induced Cystoscope to breach its contract with Local 475.
The third cause of action, repeating all preceding allegations, substantially charges that Cystoscope, wilfully "and for the purpose and with the intent of interfering with and destroying its contracts and its good will, reputation and effectiveness as a labor union * * *" breached its contract with Local 475. Alleged instances of violations are then pleaded.
Defendant Cystoscope removed the action to this court by petition duly filed pursuant to the provisions of 28 U.S.C.A. § 1441(a), alleging that the suit herein sets forth a claim over which the district court has original jurisdiction under 29 U.S.C.A. § 185. The invoked section provides, in pertinent part, as follows: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."
It seems clear that the third cause of action does advance essentially a claim founded on breach of contract, and that this feature of the complaint is not affected by additional recitals of conspiracy. See, Freidman v. Roseth Corp., 270 App.Div. 988, 62 N.Y.S.2d 663, affirmed 297 N.Y. 495, 74 N.E.2d 192. The complaint, however, does not allege that the union represents employees in an industry affecting commerce, a prerequisite to federal jurisdiction under 29 U.S.C.A. § 185. That Local 475 does, in fact, represent such...
To continue reading
Request your trial
-
State of Conn. v. Levi Strauss & Co.
...Co., 270 F.Supp. 264 (E.D.N.Y. 1967); Minkoff v. Scranton Frocks, Inc., 172 F.Supp. 870 (S.D.N.Y.1959); Fay v. American Cystoscope Makers, Inc., 98 F.Supp. 278 (S.D.N.Y.1951). Other courts have noted the rule that preemption is a matter of defense to a state law claim and concluded that pre......
-
Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp
...D.C., 108 F.Supp. 45; Pepper & Potter, Inc., v. Local 977, United Auto Workers, C.I.O., D.C., 103 F.Supp. 684; Fay v. American Cytoscope Makers, Inc., D.C., 98 F.Supp. 278; Textile Workers Union of America, C.I.O. v. Aleo Mfg. Co., D.C., 94 F.Supp. 626; Wilson & Co. v. United Packinghouse W......
-
Charles Dowd Box Co. v. Courtney
...28 U.S.C. § 1441, 28 U.S.C.A. § 1441. See Swift & Co. v. United Packing-house Workers, D.C., 177 F.Supp. 511; Fay v. American Cystoscope Makers, Inc., D.C., 98 F.Supp. 278. ...
-
Marquette Nat. Bank v. First Nat. Bank of Omaha, 4-76 Civ. 251.
...551 (S.D.N.Y.1969); Sylgab Steel & Wire Corp. v. Strickland Transp. Co., 270 F.Supp. 264 (E.D.N.Y.1967); Fay v. American Cystoscope Makers, Inc., 98 F.Supp. 278 (S.D.N.Y. 1951). The defendants contend that the issue of the existence of a federal question is controlled by the rule laid down ......