McNutt v. United Gas, Coke & Chemical Workers

• Decision Date: 17 December 1952
• Docket Number: Civ. A. No. 1044.
• Citation: 108 F. Supp. 871
• Parties: McNUTT et al. v. UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C.I.O., et al.
• Court: U.S. District Court — Western District of Arkansas

108 F. Supp. 871

McNUTT et al. v. UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C.I.O., et al.

Civ. A. No. 1044.

United States District Court W. D. Arkansas, Fort Smith Division.

December 17, 1952.

Hardin, Barton & Hardin and Charles R. Garner, Fort Smith, Ark., for plaintiffs.

G. L. Grant, Fort Smith, Ark., Benjamin C. Sigal, Washington, D. C., for defendants.

JOHN E. MILLER, District Judge.

On November 5, 1952, plaintiffs filed their complaint against defendants seeking to recover damages in excess of $3,000 for personal injuries allegedly inflicted upon them by defendants.

In the complaint the plaintiffs alleged:

That they are now and were at all times mentioned in the complaint citizens of the State of Oklahoma.

That the defendant, United Gas, Coke and Chemical Workers of America, C. I. O., is an international labor organization existing under and by virtue of the voluntary association of its members; that the defendant, Dave B. Sisco, is denominated by his codefendant as a business manager and international representative of United Gas, Coke and Chemical Workers of America, C. I. O., hereinafter referred to as United, and the defendant Sisco is a citizen and resident of the Western District of Arkansas, Fort Smith Division, and is therein engaged in representing and acting for his codefendant, United.

That the Court has jurisdiction of this cause to enforce a substantive right existing under the laws of the United States as provided and guaranteed by Title 18, U.S.C.A. Section 241, and Title 29 U.S.C.A. Sections 151-166, as amended.

That on February 18, 1951, the LeFlore County Gas and Electric Company, a corporation organized and existing under the laws of the State of Oklahoma, with its principal place of business at Poteau in LeFlore County, Oklahoma, and which is engaged in business in interstate commerce or affecting interstate commerce, entered into a labor contract with Local Union No. 472 of the defendant United; that at the time the said labor contract was entered into the plaintiffs were employees of the LeFlore County Gas and Electric Company, employed as tool dressers on the said company's gas well drilling rigs; that on or about November 7, 1951, the said Local No. 472 and the defendant United, acting through its officers, agents and the defendant Sisco, declared, instituted and engaged in a labor dispute and strike against the said company; that while said labor dispute and strike was in progress the plaintiffs left the premises of their said employer and went to work as tool dressers for the Residue Company, a corporation organized and existing under the laws of the State of Arkansas with its principal place of business in the City of Fort Smith, Sebastian County, Arkansas; that the said Residue Company at said time was and is engaged in a business in interstate commerce or affecting interstate commerce and was drilling a gas well at a point approximately 11 miles north of Clarksville, Arkansas.

That the said LeFlore County Gas & Electric Company and the Residue Company are separate corporations but have a common president and common stockholders.

That the defendant United and its members, and Local No. 472 and its members, "acting through their officers and agents conspired, contracted and agreed together and among themselves by concerted action with the intent to injure the plaintiffs, their persons and their property, and on or about the 1st day of December, 1951, at or about 4:30 p. m., United, acting through the defendant, Dave B. Sisco, as international representative, of United, and Local No. 472, acting through its President, Bill Russell; its Vice President, J. C. Hicks; its Armed Guard, Watt Hale; and, one of its members, Lester Taylor, acting in concert pursuant to said conspiracy, travelled to the location where plaintiffs were working and after having deliberated, premeditated and with malice, and with the intent to deprive these plaintiffs of rights guaranteed by the laws of the United States, did then and there deliberately, willfully, maliciously and violently assault, kick and beat and batter these plaintiffs, damaging them as hereinafter stated.

"That the acts and actions of the defendants, together with the acts and actions of the co-conspirators aforesaid, were calculated and did deprive these plaintiffs of their right to refrain from joining United and Local No. 472 thereof and to refrain from assisting the defendants and their co-conspirators in their labor dispute and strike with the LeFlore County Gas & Electric Company and/or the Residue Company; plaintiffs right to refrain from any and all other concerted activities for purposes of collective bargaining or other mutual aid or protection of said conspirators, all of same being rights guaranteed to these plaintiffs by the laws of the United States."

Then follow descriptive allegations of the injuries received by plaintiffs and the damages sustained.

Summons was issued on the complaint and was served by the United States Marshal for the Western District of Arkansas. The return of the Marshal on the summons was as follows:

"I hereby certify that on the 11th day of November, 1952, I served the within summons and complaint on Dave B. Sisco, as individual, and by serving him a copy of the summons and complaint as District Representative of District 8 of the United Gas, Coke and Chemical Workers of America, CIO., in the U. S. Marshal's Office in the Federal Building, at Fort Smith, Arkansas."

On November 28, 1952, the defendants filed a motion to dismiss the complaint and to quash service of summons. In the motion the defendants stated that they were "appearing specially and not submitting themselves personally to the jurisdiction of the court." The allegations of the motion are as follows:

"I. To dismiss the action on the ground that the court lacks jurisdiction over the subject matter of this action:

"a. A federal district court does not have jurisdiction over a suit by individuals for damages, under Act of July 5, 1935, c. 372, 49 Stat. 449, U.S. Code, Title 29, Sec. 151-166, as amended 29 U.S.C.A. §§ 151-166.

"b. A federal district court does not have jurisdiction over a suit for damages for alleged conspiracy by private persons to deny plaintiffs right to refrain from joining a labor union, or to assist in a labor dispute, or to refrain from engaging in concerted activities for purposes of collective bargaining, Under 18 U.S.C., Sec. 241.

"II. To dismiss the action, or in lieu thereof to quash the return of service of summons on the ground that the defendant, United Gas, Coke and Chemical Workers of America—CIO has not been properly served with process, because the plaintiff purports to sue an unincorporated association in its society name by service of process on an alleged agent.

"III. To dismiss the action on the ground that it is in the wrong district because (a) the jurisdiction of this court is invoked solely on the ground that the action arises under the laws of the United States; and (b) the defendant United Gas, Coke and Chemical Workers of America—CIO has its main office, and resides in, the District of Columbia.

"IV. To dismiss, the action because the complaint fails to state a claim against defendants upon which relief can be granted."

Attached to the motion is an affidavit of Joe Joy, a Vice President of the defendant United, in which he states that said defendant is an unincorporated labor association whose members reside in and are citizens of many states of the United States and in various provinces of Canada. That the principal office and place of business of the said defendant United is at 805 G. Street N. W., Washington 1, D. C.

On December 15, 1952, plaintiffs submitted their "Authorities and Arguments in Opposition of Motion to Dismiss Complaint and to Quash Service of Summons," in which they make the following contentions:

(1) That this is a suit against the association in its common name.

(2) That Rule 17(b), Federal Rules of Civil Procedure, 28 U.S.C.A., permits an unincorporated association to be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the constitution or laws of the United States.

(3) That 29 U.S.C.A. § 157, provides such a substantive right, i. e., the right to refrain from activities relating to the organization and operation of labor organizations.

(4) That defendants violated this right and that under 8 U.S.C.A. § 47, plaintiffs have a cause of action therefor.

(5) That "It may be that it will be necessary for the plaintiffs to amend their complaint to make the suit a class suit under rule 23(a)."

(6) That regardless of the situation with respect to United, the Court has jurisdiction of the defendant Sisco.

In considering the defendants' motion to dismiss, the Court should accept the allegations in the complaint as true and view the case in the aspect most favorable to the plaintiffs. Montgomery Ward & Co., Inc., v. Langer, 8 Cir., 168 F.2d 182, 185.

Rule 17(b), under which plaintiffs seek to bring this action, provides, inter alia:

"* * * In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, * * *."

Under the Rule, an unincorporated association may be sued in its common name only if (1) the law of the state in which the district court is held permits such a suit, or (2) the purpose of the suit is the enforcement of a substantive federal right.

An unincorporated association may not be sued in its common name in Arkansas. Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464; District No. 21, United Mine Workers of America v....