Oskoian v. Canuel

• Decision Date: 03 August 1959
• Docket Number: No. 5464.,5464.
• Citation: 269 F.2d 311
• Parties: Gregory OSKOIAN et al., etc., Defendants, Appellants, v. Theobald J. CANUEL et al., etc., Plaintiffs, Appellees.
• Court: U.S. Court of Appeals — First Circuit

269 F.2d 311 (1959)

Gregory OSKOIAN et al., etc., Defendants, Appellants, v. Theobald J. CANUEL et al., etc., Plaintiffs, Appellees.

No. 5464.

United States Court of Appeals First Circuit.

August 3, 1959.

William J. Sheehan, Providence, R.I., with whom Jacob S. Temkin and Isadore Kirshenbaum, Providence, R. I., were on brief, for appellants.

Milton Stanzler, Providence, R. I., with whom Julius C. Michaelson, Providence, R. I., was on brief, for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Circuit Judge (Retired).

This appeal was prosecuted by leave of this court granted in order to resolve a basic and difficult problem of practice. 264 F.2d 591. The case was begun by a complaint filed in the United States District Court for the District of Rhode Island, containing five counts sounding in tort. It alleges that in 1956 the Independent Bakery Workers Union won an election conducted by the National Labor Relations Board among the employees of a certain bakery of The Great Atlantic & Pacific Tea Company, that Local 184 of the Bakery and Confectionery Workers International Union of America was rejected by the employees at that election, and that the Independent Union was then duly certified by the NLRB as the collective bargaining agent for the employees at that bakery. Thereafter the International Union "maliciously and unlawfully interfered with the employment contract and rights" of the members of the Independent Union (Count 1), conspired with the A. & P. so to interfere (Count 2), "intentionally and maliciously induced and persuaded" the A. & P. to sever such employment (Count 3), conspired with the A. & P. to commit such inducement (Count 4), and conspired with the A. & P. to deprive the members of the Independent Union of their rights under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. (Count 5).

The plaintiffs are three individuals alleged to have been members of the Independent Union (which is now defunct) and to be Massachusetts citizens. They purport to sue on behalf of themselves and others similarly situated, but the district court ruled that they constituted a so-called "spurious" class under Rule 23(a) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and that the rights of absent members of the plaintiff class would not be adjudicated. The thirteen named defendants, said to be Rhode Island citizens and members of the International Union, are sued as members and representatives of that Union, an unincorporated labor organization having in excess of 50,000 members. Plaintiffs claim that defendant Oskoian is an "international representative" of the International Union and that defendants Kavanaugh and Boudreau are officers of Local 184; assuming these allegations to be true, the district court found that the named defendants adequately represent the defendant class.

The defendants filed timely motions to dismiss for sundry reasons and various motions for other relief, all of which were denied. One ground of the motions to dismiss was in essence that the named defendants lacked the capacity to be sued as representatives of the International Union;¹ the motions affirmatively stated that no named defendant was an officer of the International Union and that the officers of that Union were known to the plaintiffs. The court below held that the propriety of an action against the defendant class was a question of procedural law governed only by F.R.Civ.P. 23(a), and that neither the rule of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, nor F.R.Civ.P. 17(b) required compliance with state law; the court also certified that its order denying the motion to dismiss involved a controlling question of law as to which there was substantial ground for difference of opinion and that immediate appeal therefrom might materially advance the ultimate termination of the litigation. On the defendants' motion we then granted leave to appeal under 28 U.S.C. § 1292(b) because we thought the question of capacity of the defendant class to be sued presented the "exceptional case" that justified invocation of the new interlocutory appeal procedure. 1 Cir., 1959, 264 F.2d 591. Our permission to appeal was limited to this one issue; although the district court's decisions on other related matters are accepted as premises for our decision of this question, nothing in this opinion should be construed as a review of those matters.

As our opinion granting leave to appeal intimated, our inquiry must start with Rule 17(b) F.R.Civ.P., which provides in pertinent part:

"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 * * *."

We went on to say that, "It is apparent that the present case is not one for enforcing against an unincorporated association a substantive right `existing under the Constitution or laws of the United States'. Therefore, since the exception has no application, the general rule becomes operative, that capacity to be sued must be governed by the law of the state in which the district court is held, in this case by the law of Rhode Island." 264 F.2d at page 593. The inapplicability of the exception, as we said, distinguishes the case relied on by the district court, Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 4 Cir., 1945, 148 F.2d 403, where the court was considering a suit on a federal right of action. We doubt that anything said there was intended to apply to cases like the present one, but if so it must have been obiter dictum. Weeks v. Bareco Oil Co., 7 Cir., 1941, 125 F.2d 84, is similarly inapposite.

One method of suit against an unincorporated labor union under the law of the state is defined by §§ 9-2-10 through 9-2-15 of the General Laws of Rhode Island. In particular, § 9-2-12 provides:

"Actions against unincorporated associations. — Any action or other proceeding at law may be maintained to recover any property, or upon any cause of action for or upon which the plaintiff may maintain such an action or proceeding at law against all the associates, by reason of their interest or ownership, or claim of ownership therein, against the president and secretary of such association, or the officers or members exercising substantially the duties, respectively, of president and secretary, or if there be no such officer, or officers or members exercising such duties, or either of them, then against any other two (2) officers of such association, or if there be but one (1) officer, then against such single officer, or if there be no officer known to the plaintiff, then against any member of such association, describing such officer or officers, member or members, as the representative or representatives of such association."

Section 9-2-14 prohibits execution of the judgment in such an action against the person or property of members or officers of the association, and authorizes execution out of property of the association instead.

If the plaintiffs had complied with this procedure, the suit would have been properly brought under Rule 17(b) against the Union as an entity. Compare Van Sant v. American Express Co., 3 Cir., 1948, 169 F.2d 355, 372. It is clear, however, that plaintiffs have failed either to join the president and secretary of the International Union or more than one alleged officer thereof, or to allege that such other officers do not exist or are unknown to them. On the contrary, they apparently admit that they know the identity of the statutorily designated officers, and they claim that, since those officers are located outside Rhode Island, failure to join them is justified. This excuse is completely without support in the statutory language, which is unambiguous. Furthermore, it seems quite reasonable that the Rhode Island legislature might demand the presence of the principal officers of a union within the state as a prerequisite to the assertion of jurisdiction over that union as an entity. We must construe the plain words of § 9-2-12 to require that the Union be sued through service on the specified officers. Cf. Hagan v. Bricklayers' etc. Union No. 28, 1932, 143 Misc. 591, 256 N.Y.S. 898. Such a special procedure for obtaining jurisdiction must be complied with strictly. Cf. Hanke v. Cigar Makers' International Union, 1899, 27 Misc. 529, 58 N.Y.S. 412; A. J. Siris Products Corp. v. Price, 1956, 3 Misc.2d 144, 148 N.Y.S.2d 180; League of Mutual Taxi Owners, Inc. v. United Construction Workers, Sup.Ct.1949, 90 N.Y.S.2d 288; Mason v. Holmes, 1900, 30 Misc. 719, 64 N.Y.S. 596. It is obvious that the plaintiffs have not properly sued the International Union as an entity under Rule 17(b) F.R.Civ.P. and § 9-2-12 of the state statute. International Union United Automobile Aircraft & Agr. Implement Workers of America v. Delta Air Lines, Inc., D.C.N.D.Ga. 1949, 83 F.Supp. 63; see Worthington Pump & Machinery Corp. v. Local No. 259 of United Electrical etc. Workers, D.C.D.Mass.1945, 63 F.Supp. 411; Gerut v. Poe, D.C.N.D.Ill.1951, 11 F.R.D. 281.

Still, it does not follow that the action should have been dismissed. Although the substantive allegations of the complaint plead tortious conduct of the International Union, the individual defendants may have been named as representatives not of the Union but rather of a class comprising its members. Compare Lowry v. International Brotherhood of Boilermakers, etc., 5 Cir., 1958, 259 F. 2d 568; Fennell v. Bache, 1941, 74 App. D.C. 247, 123 F.2d 905, certiorari denied 1941, 314 U.S. 689, 62 S.Ct. 359, 86 L. Ed. 551. It appears that the law of Rhode Island recognizes one other remedy for the torts of an...