name, can sue or be sued in any court of said state by such name.
It therefore follows that Allied and Typographical have capacity by the law of the State of New Jersey to sue in their common names, but in cases such as this where jurisdiction requires diversity of citizenship, even though capacity has been accorded the said unincorporated association to sue by such name, the citizenship of the individual members must nevertheless be made to appear, and their citizenship must be wholly diverse from that of the opposing party or parties. Thomas v. Board of Trustees of the Ohio State University, 1904, 195 U.S. 207, 25 S. Ct. 24, 49 L. Ed. 160 (Moore's Federal Practice, Vol. 2, page 2100); Rosendale et al. v. Phillips et al., 2 Cir., 87 F.2d 454.
Allied and Typographical cannot meet the requirements of diversity of citizenship and their escape, if any, is in the class action (Rule 23), where only the citizenship of the representative or representatives need appear. Moore's Federal Practice, Vol. 2, page 2100.
This court desires to pass upon the merits of as many of the questions presented as possible, and relying upon the spirit and the word of the Federal Rules of Civil Procedure, and more particularly Rules 1 and 15 and the case of Youngs Rubber Corporation, Inc. v. C.I. Lee & Co., Inc., et al., 2 Cir., 45 F.2d 103, it does not dismiss the action of Typographical for want of jurisdiction, but reopens this case to afford Typographical an opportunity to establish its right to proceed under Rule 23.
The same opportunity is not afforded Allied, because prior to April 2, 1937, it authorized Hudson Allied to institute an action in the Court of Chancery of New Jersey against the same defendant and label complained of herein on a label substantially identical with the trade-mark of Allied herein, and it obtained a final decree on the question of whether or not Masters had copied or was imitating said label and using said copy or imitation in such a way as to unfairly compete with Allied and its locals.
The Court of Chancery entered its final decree on April 12, 1937; thereafter, and in September, 1938, Hudson Allied filed a petition, wherein it asked that the decree be vacated and set aside and the petition was referred to a special master for the purpose of taking newly discovered evidence, which at the original hearing was unknown to Hudson Allied. When the master reported on August 11, 1939, that the label of Masters would in fact deceive persons of average intelligence who demanded a union label on their printed work, and when the label of the defendant appeared on said work, accepted the same believing it to be the union label of Hudson Allied, Masters took exception thereto and the Court of Chancery sustained said objections, holding that the testimony before the master showed the deception resulted from acts of the defendant arising after the signing of the original decree in the cause; that said acts might be cause for a new or plenary suit, but certainly they could not, under the circumstances, be considered as newly discovered evidence and having a bearing upon the original suit.
On January 9, 1940, Allied and Typographical moved herein to strike the defense that the aforesaid decree of the Court of Chancery was res judicata. This court held it was res judicata, and that the complaint herein could stand, if it stood at all, only as to a period beginning on April 12, 1937 (date of Chancery decree), and running subsequent thereto, and now that the court has heard the proof on the part of Allied for the period after April 12, 1937, it finds same directed to whether or not there was actual confusion or fraudulent intent, such as in the nature of evidence which, while unnecessary ( Hilton v. Hilton, 90 N.J.Eq. 564, 107 A. 263; A. Hollander & Son, Inc. v. Philip A. Singer & Bro., 119 N.J.Eq. 52, 180 A. 671), might have and could have been received in the Chancery matter, and the decree of that court determined the question of alleged copying, imitating and unfair competition, and so long as it remains unreversed, it is conclusive upon Hudson Allied and its privies, not only as to the particular property involved in the suit, but as to all future litigation between the same parties or their privies, touching the subject matter, and every matter which was offered and received to sustain or defeat the claim, and any other admissible matter which might have been offered for that purpose, and even though the property involved in the subsequent litigation be different from that which was involved in the first, if there be substantial identity in the subject matter of the two suits. In re Walsh's Estate, 80 N.J.Eq. 565, 74 A. 563; Nuzzi v. United States Casualty Co., 121 N.J.L. 249, 1 A.2d 890. Therefore, the decree of the Court of Chancery, while it stands, is res judicata of the matters herein presented by Allied ( In re Leupp, 108 N.J.Eq. 49, 153 A. 842), and it will serve no useful purpose to permit Allied to attempt to proceed under Rule 23. Its action is dismissed for the reasons aforesaid.
Conclusions of Law
1. Allied and Typographical are unincorporated associations of seven or more members, each having a recognized or common name, and they can sue by such recognized or common name under the laws of the State of New Jersey.
2. Allied and Typographical have members who are residents of the State of New Jersey, and because diversity of citizenship is necessary herein, they cannot sue in their recognized or common names.
3. When an unincorporated association of seven or more members, having a common or registered name, sues by such name and cannot establish that the citizenship of its individual members is diverse from that of the opposing party, the court may, in accordance with the spirit and letter of the Federal Rules of Civil Procedure, grant said association an opportunity to proceed under Rule 23 (class action), where only the citizenship of the representative or representatives need appear. However, this will not be done as to any matter when it appears that to do so as to said matter would be futile because of a prior adjudication in a court of competent jurisdiction, involving the same parties and their privies and substantially the same subject matter.