Stangard Dickerson Corp. v. UNITED ELEC. R. & MW, ETC.

• Decision Date: 19 June 1940
• Docket Number: Civ. No. 910.
• Citation: 33 F. Supp. 449
• Parties: STANGARD DICKERSON CORPORATION v. UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1218, et al.
• Court: U.S. District Court — District of New Jersey

33 F. Supp. 449

STANGARD DICKERSON CORPORATION v. UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1218, et al.

Civ. No. 910.

District Court, D. New Jersey.

June 19, 1940.

Gilhooly & Yauch, of Newark, N.J., for complainant.

Samuel L. Rothbard, of Newark, N.J., for defendants.

FORMAN, District Judge.

For approximately ten years Andrew W. McCabe has been engaged in the refrigeration business as president of Dickerson Company, a New Jersey corporation. In November, 1939, the Stangard Dickerson Corporation was incorporated under the laws of the State of New Jersey for the manufacture and sale of refrigeration equipment with its principal place of business in the City of Newark, N. J. Andrew W. McCabe and Edna L. McCabe furnished the entire capital of said corporation. They, together with Richard P. McCabe, owned and controlled 51% of the stock. The remaining 49% is owned by Walter Raskin, who became a stockholder, director and officer of the Stangard Dickerson Corporation. He was formerly employed by the Standard Body Corporation, a New York Corporation, the stock of which was owned by several of his relatives. The McCabes never owned any stock in this corporation.

It appears that almost immediately after its incorporation the Stangard Dickerson Corporation contracted with the Standard Body Corporation of New York for the manufacture specially to its order of a considerable number of ice boxes. These boxes had been ordered from the Stangard Dickerson Corporation which was not prepared to fill the order, and, hence, contracted with the Standard Body Corporation as aforesaid.

On March 1, 1940, the Standard Body Corporation of New York was adjudicated a bankrupt, and on March 5 and 6, 1940, the Stangard Dickerson Corporation purchased from the bankrupt estate a substantial amount of its equipment which it removed to its plant at Oliver Street, Newark, N. J. where it is making itself ready to embark in the manufacturing business. Subsequent to the removal of this equipment to Newark, the National Labor Relations Board at New York communicated with the Stangard Dickerson Corporation and advised it that charges had been made by the United Electrical Radio and Machine Workers of America, Local 1218, C. I. O., that the Standard Body Corporation discharged on February 26, 1940, all of its employees because of their union membership and activity, and that the corporation had refused to meet further with the representatives of its employees. On March 15, 1940, representatives of the Stangard Dickerson Corporation appeared before the Labor Board and denied liability for these charges. Negotiations between the Stangard Dickerson Corporation and union officials proceeded until March 18, 1940, but failed to result in any agreement between the Stangard Dickerson Corporation and the union. The corporation took the position that it was obligated to re-employ employees then presently working for the Dickerson Company, and those who had formerly worked for the Dickerson Company who had suffered suspensions from time to time because of business conditions, and that former employees of the Standard Body Company could not be given employment under such circumstances. Picket lines were formed on the afternoon of that day — March 18, 1940. The pickets bore signs alleging that employees had been locked out by the Stangard Dickerson Corporation, and that it refused to reemploy union employees, etc.

On April 1, 1940, the Stangard Dickerson Corporation filed a bill in the Court of Chancery of New Jersey, against the United Electrical and Machine Workers of America, Local 1218, C. I. O., and some twenty individuals who were engaged in the picketing activity, some of whom were officers of the Local. In addition to the facts above set forth the bill alleged that none of the men engaged in picketing and congregating about the street, sidewalk and in entrances adjacent to the plant of the Stangard Dickerson Corporation was its employees and had never been its employees; that it was still setting up its machinery in equipping its plant to commence operations; that it had not begun manufacturing, and that there was no strike of any of its employees. It charged that the defendants interfered with ingress and egress of merchandise moved to and from the plant and threatened and molested its employees. The bill prayed for relief against the activity of the defendants by way of injunction.

One of the defendants, Henry Heynick, filed a petition for the removal of the cause to this court on the ground of diversity of citizenship, complainant being a resident of New Jersey, and the defendant union being an unincorporated, voluntary association of more than seven members no one of whom is a resident of New Jersey, but all of whom are residents of New York. The other defendants filed their consents to join in this petition. The Court of Chancery of New Jersey denied the petition for removal and thereupon an exemplified copy of the proceedings was filed in this court together with defendant's motion that this court order a removal. Complainant moved that the cause should be remanded to the Court of Chancery of New Jersey.

Complainant resists removal on the following grounds:

1. The petition for removal is defective because only one of the defendants has applied for removal in a duly verified petition as required by statute. 28 U.S.C.A. § 72.

2. The petition for removal is unsupported by allegations of fact to show that $3,000, the jurisdictional prerequisite is involved.

3. A removal would deprive complainant of its substantive right under the law of New Jersey to an injunction, since such could not issue under the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq.

It is noted that only one defendant, Henry Heynick, filed the petition for removal in the state court. The remaining defendants filed their consents to join in that petition. It is claimed that it is necessary for all the defendants to actually join in the petition for removal and verification thereof, and that the consent to joinder as filed does not suffice. The only case cited in this connection is Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055, which holds that all defendants must join in the petition. That case throws no light on the procedure adopted in this case, and we have been unable to find illuminating authority on the point. It seems to us that the procedure utilized is a simple and effective means to adequately satisfy the requirement of the removal statute. The first objection that the petition for removal is defective is, therefore, overruled.

The petition for removal alleges that the value of the property complainant seeks to protect exceeds $3,000, and that the relief prayed for, if granted, would damage defendants in excess of $3,000. In support of their contention that this jurisdictional prerequisite is present the petitioners show that the Stangard Dickerson Corporation's complaint in the Chancery Court action averred that it had an investment in plant and equipment at its premises in Newark, N. J., amounting to $29,000, and cite the cases of Union Premier Food Stores, Inc. et al. v. Retail Food Clerks and Managers Union, 3 Cir., 98 F.2d 821, and Tri-City Central Trades Council, et al. v. American Steel Foundries, 7 Cir., 238 F. 728; Id., 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360, both of which involve injunctions in labor disputes. They also cite the cases of James Heddon's Sons v. Callender, D.C., 28 F.Supp. 643, and Campbell Baking Co. et al. v. City of Maryville, D.C., 31 F.2d 466.

In the case of Union Premier Food Stores, Inc., et al. v. Retail Food Clerks and Managers Union, supra, the court disposed of this problem by stating: "The amount involved in these proceedings exceeds $3,000 exclusive of interest and costs. The capital invested in plaintiffs' business exceeds $2,000,000 and the amount of business done annually approximates $20,000,000." 98 F.2d 821, 822. The court observed that more than 50% of plaintiff's stock of goods was perishable, and that a continuance of the picket line would have destroyed its business within a few days. Such a condition is not demonstrated in the case before us. In fact, the complainant has not yet begun to function as a manufacturing plant.

The case of Tri-City Central Trades Council et al. v. American Steel Foundries, supra, involves an alleged threatened destruction of property. Therein, the court stated: "Defendants' claim that the court was without jurisdiction is without merit. The necessary diversity of citizenship appears. The amount involved exceeds $3,000. It was not necessary that $3,000 worth of property should be destroyed before the federal court acquired jurisdiction. The alleged threatened damage far exceeded the statutory sum necessary to give the district court jurisdiction." 238 F. 728, 730. As in the case above, the court was enabled to find a threat of destruction to property consisting of a plant worth $1,000,000. This is not analogous to the instant case, because herein there is not alleged a threatened destruction of complainant's property.

In the case of James Heddon's Sons v. Callender, supra, the purpose of the suit was to enjoin the defendant from violating the stipulated retail prices in Fair Trade Contracts under a Minnesota law. The plaintiff alleged the jurisdictional amount as being present. This was challenged by the defendant, but no proof of want of jurisdiction was offered by him. An affidavit was filed by the plaintiff in which the affiant admitted that no loss had been suffered by the plaintiff until that time; that in the year 1938 its business in Minnesota amounted to $20,000, and in 1939 it would approximate that sum, but that if the threatened practice of cutting prices was carried out by the defendant the value of its trademarks and tradenames would be debased more than $3,000. The affidavits of the...