Underwood v. Delaney
| Citation | 170 F. Supp. 21 |
| Decision Date | 28 November 1958 |
| Docket Number | 2053.,Civ. A. No. 2052 |
| Parties | Roy J. UNDERWOOD, v. Joseph J. DELANEY and Hunter P. Wharton, individually and as representatives of the International Union of Operating Engineers. Homer DAWSON, Colombo Acchione, Edmond Farmer, Nathan Unruh, Louis Lattanzio, Norman Gale, Howard Kaye, George E. Saltzman, Stanley Kosiorek, Michael Concordia and Robert Palmer Driscoll, in their own behalf and on behalf of all members of Local 542 and its branches 542A, 542B and 542C of the International Union of Operating Engineers, v. Joseph J. DELANEY and Hunter P. Wharton, individually and as representatives of the International Union of Operating Engineers. |
| Court | U.S. District Court — District of Delaware |
Abraham E. Freedman and Marvin I. Barish, of Freedman, Landy & Lorry, Philadelphia, Pa., and Harold Leshem, Wilmington, Del., for plaintiffs.
William S. Potter and James L. Latchum, of Berl, Potter & Anderson, Wilmington, Del., for defendants; Charles A. Wolfe, of Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., and J. Albert Woll, Washington, D. C., of counsel.
Although these motions present questions purely legal in nature, the factual background of the two actions involved is briefly sketched in order that a better understanding of the matter may be had.
The International Union of Operating Engineers (International) is a nationwide union whose members operate all types of mechanical and hoisting equipment such as cranes, bulldozers and the like. Local 542 is a labor union affiliated with International whose territory, or jurisdiction, consists of the Eastern half of Pennsylvania and all of Delaware. In 1952, one Maloney was president of International and Underwood, plaintiff in Civil Action No. 2052, was president of Local 542. As of that time, the plaintiffs in these actions contend that Local 542 was maintaining a successful strike against certain employers who had refused to agree to a new labor contract. These employers, it is alleged, by devious means conspired with Maloney to end the strike. To this end, Maloney put improper pressure upon Local 542 and its officers to terminate the strike. When the Local refused, he allegedly preferred false charges against Underwood, president of the Local, and a hearing was held as the result of which all the Local officers were wrongfully suspended, Underwood suspended from the Union and fined $3,500, and a trusteeship imposed upon the Local which is still in effect.
In Civil Action No. 2052, (Underwood) the plaintiff seeks to be reinstated as president, the fine suspended, the trusteeship abolished and money damages assessed as the result of the alleged improper actions of Maloney and his successor, Delaney.
In Civil Action No. 2053, (Dawson) certain members of the Local for themselves and on behalf of the Local have filed suit against International seeking the same objects as sought in the Underwood suit and, in addition, an accounting of funds, the return of all books and papers, etc.
The defendants have filed motions in each action to dismiss for lack of venue, lack of service upon the defendants and for failure to allege the proper jurisdiction requirements as to amount.
This is a suit by Underwood against Delaney and Wharton as individuals and as representatives of International. Jurisdiction is based on diversity. Underwood is a resident of Pennsylvania, Delaney of New York and Wharton of Washington, D. C. While diversity of citizenship appears, yet for the purposes of venue such an action may only be brought in the district where all the plaintiffs or all the defendants reside. 28 U.S.C.A. § 1391.1 Obviously, venue has been improperly laid as to Delaney and Wharton in their individual capacities. The plaintiff concedes this. The motion to dismiss is granted as to them as individuals.
There remains, then, in Civil Action No. 2052, an action by Underwood of Pennsylvania against Delaney and Wharton as representatives of International, a class suit. If this were a suit based upon diversity against International, as an entity, it would fail since its membership is nationwide. Underwood v. Maloney, 3 Cir., 256 F.2d 334.2 The plaintiffs, in order to avoid this pitfall, elected to sue in Delaware using the device of a class action. But, as the defendants argue, there still remains the question of venue, for neither all the plaintiffs nor all the defendants reside in the district of Delaware — in fact, none of them resides in this district.
In the face of this obstacle, the plaintiff points to Sperry Products, Inc., v. Association of American Railroads, 2 Cir., 1942, 132 F.2d 408, 411, 145 A.L.R. 694 as authority for his position. There, Judge Hand held that a diversity suit against an unincorporated association, as an entity, was properly laid as to venue if any substantial part of its activities were continuously carried on "in the district where suit was brought." He reasoned that since unincorporated associations are frequently regarded as jural entities for the purpose of suit, "* * * we can see no reason why that doctrine should not be applied consistently to other procedural incidents than service of process, and venue is one of such incidents." (My emphasis.) Therefore, Judge Hand held that for the purposes of venue an unincorporated association was a jural entity. And in deciding where its location was, he concluded that the test "must always be what it is for a corporation outside the state of its incorporation." In the end, he reasoned that a suit against an unincorporated association, diversity of citizenship being present, was properly brought in so far as concerned venue" * * * wherever any substantial part of its activities were continuously carried on * * *." But while the plaintiff...
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Underwood v. McBride
...factual statement may be found in Underwood v. Delaney and Wharton, C. A. No. 2052, and Dawson v. Delaney and Wharton, C. A. No. 2053, D.C., 170 F.Supp. 21. In C. A. No. 2052, the defendant's motion to dismiss was sustained upon the ground of improper venue. An amended complaint has been fi......
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