Local 15 of Ind. Wkrs. v. INTERNATIONAL BRO. OF ELEC. WKRS.

• Decision Date: 03 March 1967
• Docket Number: Civ. No. 1770-1773.
• Parties: LOCAL 15 OF the INDEPENDENT WORKERS OF NOBLE COUNTY, INC. v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association, and Gordon M. Freeman, as President of, and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association, and Joseph D. Keenan, as Secretary of, and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association, and Robert E. Schaefer, individually and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association. Robert J. BARBIERI v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al. Clive R. CARLETON v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al. Richard B. OWEN III v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al.
• Court: U.S. District Court — Northern District of Indiana

273 F. Supp. 313

LOCAL 15 OF the INDEPENDENT WORKERS OF NOBLE COUNTY, INC. v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association, and Gordon M. Freeman, as President of, and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association, and Joseph D. Keenan, as Secretary of, and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association, and Robert E. Schaefer, individually and as Representative of the Members of the International Brotherhood of Electrical Workers, an unincorporated association.

Robert J. BARBIERI v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al.

Clive R. CARLETON v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al.

Richard B. OWEN III v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, an unincorporated association et al.

Civ. Nos. 1770-1773.

United States District Court N. D. Indiana, Fort Wayne Division.

March 3, 1967.

COPYRIGHT MATERIAL OMITTED

Norbert L. Wyss and Robert S. McCain, Fort Wayne, Ind., for plaintiffs.

Max E. Hobbs, Fort Wayne, Ind., for defendants.

ORDER

ESCHBACH, District Judge.

This matter is before the court on motions filed by the defendants in the captioned cause to dismiss this action or, in the alternative, to quash the return of service as to each of the within-named defendants.

The motion to dismiss for failure to state a claim must be denied.

The motion to dismiss for improper venue will be denied.

The motion to quash the return of service as to all named defendants must be granted in part and denied in part.

This cause is one of four companion diversity cases filed in this court, the others being Civil 1771, 1772, and 1773, growing out of the same alleged incidents. Plaintiff in this cause is an incorporated labor organization, formed as an organization of employees of the McCray Refrigerator Company, Inc., at Kendallville, Indiana, to carry out collective bargaining and for other purposes. Plaintiff's complaint, in eight separate counts, alleges in substance that on four different occasions in 1966, to wit, on May 5, May 9, May 10, and May 13, the defendants caused to be published certain false and defamatory statements, which statements were allegedly contained in circulars delivered by hand to employees of McCray. It is alleged that these alleged publications stated or inferred that the officers of Local 15 were guilty of gross mismanagement and misconduct in the handling of employee affairs. Plaintiff claims that as a result of the alleged libelous publications, plaintiff sustained damage to its good name, public esteem, and reputation as a responsible labor organization and has lost influence, support, and monies with which it could have continued its activities. It is alleged that the allegedly libelous publications were published by defendants with malice and with complete disregard for the rights and reputation of the plaintiff.

The court would point out at this time that, notwithstanding that the return of service of process as against all defendants save the defendant Schaefer individually will be quashed, thus obviating the necessity of dealing with the motions to dismiss, the court, in the interest of justice to avoid further and undue delay, will nevertheless deal with all matters presented.

Defendants contend that the instant lawsuit cannot be brought against the International Brotherhood of Electrical Workers, an unincorporated association, as such; that suit can only be brought against the individual members of said organization; that the same has not in fact been done; and that the lawsuit cannot proceed as a class action inasmuch as no member of the alleged class has been validly served with process.

In Indiana a private, unincorporated association cannot, absent enabling legislation, sue or be sued as an entity in its association name. Karges Furniture Co. v. Amalgamated Woodworkers Local Union No. 131, 165 Ind. 421, 75 N.E. 877, 2 L.R.A.,N.S., 788 (1905); Lafayette Chapter of Property Owners Association v. City of Lafayette, 129 Ind.App. 425, 157 N.E.2d 287 (1959). To enforce a right on behalf of or against such an association, suit must be brought in the name of all of the individual members of the association, Karges Furniture Co. v. Amalgamated Woodworkers Local Union No. 131, supra, subject, however, to the well-recognized alternative of proceeding against the entire membership by means of a class action. Where the members of the group are so numerous that it is impossible or impracticable to bring them all before the court, one or more of the class may sue or defend for and on behalf of the entire group. See Slusser v. Romine, 102 Ind.App. 25, 200 N.E. 731 (1936). This procedural device is recognized in Indiana as having applicability to actions by or against unincorporated labor unions. See Colt v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932).

Thus, as a matter of substantive law, although an unincorporated labor organization cannot be sued in its common name, it can be subjected to suit through the procedural device of a class action against its membership individually. This rule of law must govern under the facts of the instant case, at least with regard to the suability of the unincorporated association, under Fed.R.Civ. P. 17(b). See also 2 Barron & Holtzoff, Fed.Pract. & Proc. § 563 (Rules ed., Wright, 1961). But once given that there is no substantive law prohibition against an unincorporated labor organization being sued by means of a class action against the members thereof, the rules governing whether and how the action must proceed will, of course, be governed by Fed.R.Civ.P. 23. Oskoian v. Canuel, 269 F.2d 311 (1st Cir. 1959); and see Benz v. Compania Naviera Hidalgo, S/A, 233 F.2d 62 (9th Cir. 1956), cert. den. 352 U.S. 890, 77 S.Ct. 126, 1 L.Ed.2d 85 (1956), aff'd 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); 2 Barron & Holtzoff, supra, at 288; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 148 F.2d 403 (C.C.A. 4th 1945); Eads v. Sayen, 281 F.2d 791 (7th Cir. 1960).

An examination of the record in this case reveals that a total of five summonses issued from this court. One of them was directed to the International Brotherhood of Electrical Workers, to be served upon the "highest ranking officer present," and was in fact served, in Washington, D. C., upon Gordon M. Freeman, President. For the reason, discussed above, that the Union lacks capacity in the instant cause and for the further reason that service of process was effected beyond the territorial limits of this court's jurisdiction and was not validated by any state or federal law permitting extra-territorial service or service by publication or otherwise, the service on the International Union through Gordon M. Freeman, President, was a nullity and to no effect. See Fed.R.Civ. P. 4(d) (7) and Burns Ind.Stat. §§ 2-808, 2-807 (1946 Repl.).

Next, there was service on one Joseph D. Keenan and on Gordon M. Freeman, as officers of and as representatives of the members of the International Brotherhood of Electrical Workers. Inasmuch as the Union could not be sued as an entity, service in Keenan's and Freeman's capacity as officers of said organization was a nullity. In their capacity as representatives of the class of members of the Union, without passing on the adequacy of their standing as representatives or whether the manifold requirements of Fed.R.Civ.P. 23 have been satisfied, service on these individuals was once again a nullity. Notwithstanding the purported class nature of the suit, personal jurisdiction must still be obtained over those individuals named as the class representatives, see Calagaz v. Calhoon, 309 F.2d 248 (5th Cir. 1962), and, without a class representative who is properly within the court's judicial power, the class is not properly before the court. In the case at bar, although defendants Keenan and Freeman were both personally served with process, they were served in the city of Washington, D. C. This service did not satisfy the requirements of any of the subsections of Fed. R.Civ.P. 4. Service under Rule 4(d) (1) was of no effect inasmuch as service was had beyond the territorial limits of this court's jurisdiction. Rule 4(f). Nor can plaintiff avail itself of the latitude afforded by Rule 4(d) (7), for, under Indiana law, although extra-territorial service of process may be valid in some cases, it will be valid only where service by publication would have been effectual. Burns Ind.Stat. §§ 2-808, 2-807. However, plaintiff has not shown that any of the statutory conditions for such service prevailed or are applicable in this case. Accordingly, service of process on defendants Keenan and Freeman was of no force or effect.

The only other individual served with process was the defendant Robert E. Schaefer, who was served twice — once as representative of the International Union and once individually and as representative of the members of said organization. For the same reason previously stated, service on Schaefer as representative of the Union itself is ineffectual. Moreover, the fact that Schaefer was allegedly the duly authorized representative and business agent of the International Union in this territory does not validate this service under Fed.R.Civ. P. 4(d) (3). Although a general agent may, in an appropriate case, be served for the association for whom he works, that is only where the unincorporated association is, under applicable substantive law, subject to suit in its common name. This is not the case at bar.

The Motion to Quash

The question that must now be answered is an extremely vexing and difficult one — one that has not been clearly answered in the decided cases. This question, simply stated, is this: Is a business representative, who is not a member of the unincorporated labor...