Underwood v. Maloney

Decision Date26 March 1958
Docket Number12289.,12268,No. 12267,12269,12270,12267
Citation256 F.2d 334
PartiesRoy J. UNDERWOOD, Appellant, v. William E. MALONEY, Individually and as Representative of the International Union of Operating Engineers, Homer DAWSON et al., in their own behalf and on behalf of all Members of Local 542 and its Branches 542-A, 542-B and 542-C of the International Union of Operating Engineers, Appellants, v. William E. MALONEY and Hunter P. Wharton, Individually and as Representatives of and on Behalf of the International Union of Operating Engineers. Homer DAWSON et al., in their own behalf and on behalf of All Members of Local 542 and its Branches 542-A, 542-B and 542-C of the International Union of Operating Engineers, v. William E. MALONEY and Hunter P. Wharton, individually and as Representatives of and on behalf of the International Union of Operating Engineers, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Abraham E. Freedman, Philadelphia, Pa. (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellants in Nos. 12267-12270.

Charles A. Wolfe, Philadelphia, Pa. (Cornelius C. O'Brien, Jr., Philadelphia, Pa., J. Albert Woll, Washington, D. C., William H. Thomas, Cleveland, Ohio, Myers, McVeigh, Mansfield & O'Brien, Philadelphia, Pa., Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., on the brief), for appellees in Nos. 12267-12270, and appellants in No. 12289.

Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.

BIGGS, Chief Judge.

The five appeals at bar were taken from judgments entered in two suits which were tried together by the court below and which arose from the same or connected operative facts.1 The first suit, at C.A. No. 14,398 in the court below was brought by Underwood, a resident of Pennsylvania, President and Business Agent of Local 542 and of its affiliated branches in Pennsylvania, Delaware and New Jersey, against William E. Maloney, a resident of Illinois, President of the International Union of Operating Engineers with which Local 542 was affiliated. Underwood seeks injunctive relief to prevent Maloney individually and as representative of the International Union from enforcing an order of the General Executive Board of the International which removed him, Underwood, from his position as President and Business Agent of Local 542, from membership in the Local, and from all activities for a definite period subject to a proviso which need not be stated here, and which also fined him $3,500. Underwood also seeks damages.

The other suit, at C.A. No. 14,547 in the court below, was brought by Dawson and others, residents of Delaware or Pennsylvania, all members of Local 542, as a so-called "class" action on behalf of all of the members of Local 542, against Maloney and Wharton, a resident of Washington, D. C., trustee of Local 542, appointed such by Maloney, pursuant to provisions of the constitution and bylaws of the International, purportedly to the end that a strike of long duration should be terminated. Dawson and his associates seeks a decree terminating the supervision of Local 542 by the International through its trustee, Wharton. They seek also the termination of an alleged conspiracy by Maloney, as President of the International, and others to interfere in the affairs of the Local, and a declaration that the actions and orders of Maloney, as President of the International, allegedly interfering with Local 542 in effecting collective bargaining agreements with employers were illegal. Dawson and his associates pray as well for a declaration voiding the suspension and the "conviction" of Underwood, President and Business Agent of the Local, referred to in the preceding paragraph of this opinion and they also seek to enjoin reprisals against Underwood because he brought the suit in the court below at its C.A. No. 14,071, referred to in note 1, supra. Dawson and his associates also pray for an accounting and other relief germane to that already referred to in this paragraph.

Jurisdiction of the suits in the court below is alleged to be based upon diversity of citizenship and jurisdictional amount. We are of the opinion that the suit at C.A. No. 14,547 should have been dismissed by the court below for want of diversity and that the major cause of action alleged at C.A. No. 14,398 in the court below does not lie within the diversity jurisdiction.

It will be observed that the suits at C.A. No. 14,547 and 14,398 with which we are concerned were brought against Maloney or Maloney and Wharton not only in their respective individual capacities but also as class representatives of the International Union. Putting to one side for the time being those aspects of the suits relating to Maloney and Wharton as individuals, it is clear that jurisdiction as to the International is sought to be maintained on the theory of a class suit in which only the citizenships of the representatives of Local 542 and of the International, the two respective "classes," need be considered for the purposes of maintaining diversity jurisdiction. Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673.

Rule 17(b), Fed.Rules Civ. Proc. 28 U.S.C.,2 provides that in cases by or against unincorporated associations, such as the International and the Local, where jurisdiction is bottomed on diversity, as contrasted with jurisdiction based on a federal question, the courts must determine the capacity of an unincorporated association to sue or be sued by reference to the law of the state in which the federal court is sitting. Worthington Pump & Machinery Corp. v. Local 259, D.C.Mass.1945, 63 F.Supp. 411; Sanders v. International, etc., D.C. Ky.1954, 120 F.Supp. 390; American Newspaper Guild v. Mackinnon, D.C. Utah 1952, 108 F.Supp. 312. Since 1939 the law of Pennsylvania has forbidden a suit by or against an unincorporated association to be maintained as a class action, and such suits must be deemed to be brought either on behalf of or against the unincorporated association itself.3 Notes of Procedural Rules Committee to Rule 2230(a); 3 Goodrich-Amram, Standard Pennsylvania Practice 2152-2; 4 Anderson Pennsylvania Practice 195; Stern, Intra-Union Activities, Membership and Collective Bargaining Rights Under Pennsylvania law, 29 Temple L.Q. 38 (1955); Laudenslager v. Wiegner, 1946, 22 Lehigh, Pa., Co.L.J. 137; Winters v. New Johnny Jones Exposition, 1944, 6 Beaver, Pa., 138. Cf. Pennsylvania Co. v. Houseman, 1946, 341 Pa. 311, 316, 19 A.2d 148, 150. It follows, therefore, that under Rule 17(b) an unincorporated association must sue or be sued as an entity in the United States District Court for the Eastern District of Pennsylvania.

Jurisdiction nonetheless must be established and for jurisdictional purposes the citizenship of an unincorporated association is determined by the citizenship of its members. Therefore, where jurisdiction is sought to be founded on diversity of citizenship, the action being by or against an unincorporated association, as it must be applying the law of Pennsylvania which obviates class suits, the citizenships of the individual members of the unincorporated association must be shown to be wholly diverse from that of the opposing party or those of the opposing parties. Thomas v. Board of Trustees of Ohio State University, 1904, 195 U.S. 207, 25 S.Ct. 24, 49 L.Ed. 160 and Rosendale v. Phillips, 2 Cir., 1937, 87 F.2d 454. See also 3 Moore's Federal Practise, 2 ed. Paragraph 17.25, pp. 1412-1413. Compare Fallat v. Gouran, 3 Cir., 1955, 220 F.2d 325.

From the affidavits filed by the Secretary-Treasurer of the International and from the record as a whole, it is clear that there is no diversity between Underwood and the International at C.A. No. 14,398, nor between the members of Local 542 and the International at C.A. No. 14,547. Pennsylvania Greyhound Lines, Inc., v. Amalgamated Ass'n, etc., D.C.W.D.Pa.1952, 105 F.Supp. 537; Fry Roofing Co. v. Textile Workers Union of America, etc., D.C.E.D.Pa.1957, 149 F. Supp. 695; 3 Moore's Federal Practice, p. 1407 et seq. In any event Rule 8(a), Fed.R. Civ.Proc., 28 U.S.C., requires that a plaintiff suing in a United States district court, must show affirmatively the existence of whatever is essential to jurisdiction, and if he does not do so, the court on discovering the defect must dismiss the case, unless it be cured by amendment. Smith v. McCullough, 1926, 270 U.S. 456, 46 S.Ct. 338, 70 L.Ed. 682; Gibbs v. Buck, 1939, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Miller v. Brown Shipbuilding Co., 5 Cir., 1948, 165 F.2d 956. Indeed, in the complaints in the cases at bar there are not even averments of the respective citizenships of all the members of the International and of the Local. Compare Tunstall v. Brotherhood of Locomotive F. & E., 4 Cir., 1945, 148 F.2d 403, in which jurisdiction was based upon a federal question.4

We are also of the opinion that the action by Dawson and his associates against Maloney and Wharton as individuals should have been dismissed because of a lack of diversity jurisdiction. Dawson and his associates in the suit at C.A. No. 14,547 seek relief which can be afforded them only by the International. An injunction against Maloney individually or against Wharton individually could not validly preclude the International from enforcing or maintaining its decision against Underwood or the Local. It is clear, therefore, that the International is an indispensable party for the granting of the relief sought by the plaintiffs. Kendig v. Dean, 1878, 97 U.S. 423, 24 L.Ed. 1061; Gray v. Reuther, D.C.E.D.Mich.1951, 99 F.Supp. 992, affirmed 6 Cir., 1952, 201 F.2d 54. The International must be joined as a party even though that joinder would destroy diversity jurisdiction. Warfield v. Marks, 5 Cir., 1951, 190 F.2d 178, certiorari denied 1951, 342 U.S. 887, 72 S.Ct. 176, 96 L.Ed. 665. Moreover, even if...

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