Suggs v. Brotherhood of Locomotive Firemen & Enginemen
| Decision Date | 17 February 1960 |
| Docket Number | No. 623.,623. |
| Citation | 219 F. Supp. 770 |
| Parties | D. W. SUGGS, Plaintiff, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN and Central of Georgia Railway Company, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
J. Neely Peacock, Albany, Ga., for plaintiff D. W. Suggs.
Benning M. Grice, Macon, Ga., Harold C. Heiss and Russell B. Day, Cleveland, Ohio, for defendant Brotherhood of Locomotive Firemen and Enginemen.
Julian C. Sipple, Savannah, Ga., for defendant Central of Georgia Railway Co.
In the state court D. W. Suggs sued Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association with headquarters in Cleveland, Ohio, and Central of Georgia Railway Company, alleging in Count 1 that, for many years prior to July 5, 1955, he had been a member of the Brotherhood and an employee of the Central and had attained seniority with the Central as a fireman and engineer, which seniority was a valuable property right under his contract of employment; that about April 1, 1953 the Brotherhood and Central entered into a union shop agreement under which Central undertook to remove from its service any of the members of the Brotherhood who failed to pay to the Brotherhood the required dues; that on July 5, 1955 the Brotherhood and Central, acting in conspiracy together, removed plaintiff from the seniority roster and from employment with Central on the ground that he had failed to pay his dues to the Brotherhood notwithstanding the fact that he had made every effort he could to get the matter rectified, but that the Brotherhood refused and failed to assist him in any way; that plaintiff made every effort to ascertain the amount of said dues and was ready, willing and able to pay any and all dues he might have owed, but that the Brotherhood was adamant and failed and refused to protect his employment rights as it was the Brotherhood's duty to do; that by reason of this conduct on the part of the Brotherhood he was discharged by Central; that both defendants refused to assist him in any way in the redress of his wrongful discharge; and that, because of the alleged tortious breach of his contract of employment and illegal termination thereof, he has been damaged in the sum of $30,000.00.
Count 2 repeats the foregoing allegations and adds that the dues required to be paid under the union shop agreement were used and will be used by the Brotherhood to support idealogical and political doctrines and candidates which plaintiff was and is unwilling to support and in which plaintiff did not and does not believe and that such requirement as a condition precedent to employment was in violation of plaintiff's rights under the First, Fifth and Ninth Amendments of the Constitution of the United States and that his discharge was thus illegal and violative of his rights under said amendments, and such violation of the constitutional rights of the plaintiff by the two defendants has damaged the plaintiff in the sum of $30,000.00.
The suit was removed to this court upon petition of the Brotherhood alleging its removability under 28 U.S.C. § 1441 because of this court's jurisdiction under 28 U.S.C. § 1337 in that the action arises under 45 U.S.C. § 152 Eleventh and that this court has original jurisdiction under 28 U.S.C. § 1331 for that the action arises under the Constitution of the United States, to-wit, the First, Fifth and Ninth Amendments.
Central joined in and consented to the petition for removal "to the extent and upon the grounds that the state court action was founded in part on a claim arising under the laws of the United States, to-wit: the Railway Labor Act, Title 45 USC § 151 et seq., and as to which this court has original jurisdiction; * * * that the amount in controversy exceeds exclusive of interest and costs the sum of $10,000."
After this court raised the question of its jurisdiction and invited briefs of counsel thereon, D. W. Suggs, plaintiff, filed a motion to remand the case to the Superior Court of Dougherty County, Georgia, and briefs have been submitted by all parties. Jurisdiction is not claimed and could not be established on the basis of diversity. Central is a Georgia corporation and has common citizenship with the plaintiff. The presence on each side of a citizen of Georgia defeats diversity jurisdiction. American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 541, 95 L.Ed. 702, 710 (1951); Lowry v. International Brotherhood, 259 F.2d 568, 570 (5th Cir. 1958); Russell v. Basila Mfg. Co., 246 F.2d 432 (5th Cir. 1957). Furthermore, no showing of diversity is made in the complaint with respect to the Brotherhood, the allegation being simply that it is an unincorporated association with headquarters in Cleveland, Ohio. "It is well settled that, for the purposes of federal jurisdiction, an unincorporated association is not a citizen of any particular state in its own right, but that the actual citizenship of its members is determinative." Hettenbaugh v. Airline Pilots Ass'n, 189 F.2d 319, 320 (5th Cir. 1951). See also Lowry v. International Brotherhood, supra. Also, since this is a removed action, unless it be founded upon a claim or right arising under the Constitution, treaties or laws of the United States (which we shall discuss below), the statute itself permits removal "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
In order for this court to have jurisdiction of this action, it must be an action "arising under any Act of Congress regulating commerce" (28 U.S.C. § 1337) or one which "arises under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. This court is of the opinion that this action does not so arise. The test as above indicated is whether the matter in controversy, the civil action or proceeding, "arises under" the Constitution, laws or treaties of the United States. Language used frequently and imprecisely by courts and lawyers would, at first blush, incorrectly indicate an equation of that test with whether the action involves a federal question. See International Ladies' Garment Wkrs. Union, AFL v. Jay-Ann Co., 228 F.2d 632, 634 (5th Cir. 1956). Many cases involve federal questions, however, without having federal law as the basis of the suit. "Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit." Gully v. First Nat. Bank, 299 U.S. 109, 115, 57 S.Ct. 96, 99, 81 L.Ed. 70, 73 (1936). The fact that "a question of federal law is lurking in the background, just as farther in the background there lurks a question of constitutional law", (Gully, 299 U.S. at page 117, 57 S.Ct. at page 100) does not mean that federal law is the basis of the suit. Obviously the 1951 amendment to the Railway Labor Act, 45 U.S.C. § 152 Eleventh, authorizing union shop agreements, does not constitute the basis of plaintiff's suit, and Plaintiff is asserting no cause of action which "arises under" said amendment. At most plaintiff, squarely bottoming his grievance upon an alleged wrongful termination of employment and deprivation of seniority rights, "a tortious breach of his contract of employment and an illegal termination thereof," looks ahead and anticipates and replies to an apprehended defense. Such anticipation and forewarning that plaintiff would attack such defense on constitutional grounds does not aid in conferring jurisdiction. "Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense." Gully, 299 U.S. at page 113, 57 S.Ct. at page 98. The fact that plaintiff, in drafting his complaint designed to accomplish redress for violation of his contract rights and his right to work, foresees the necessity of his coming to grips with ...
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