Act, 15 U.S.C.A. § 12 et seq., but conceding for the argument that the plaintiff might have done so it saw fit to proceed otherwise- that is, by an action under the common law for equitable relief in carrying on its business and protecting its property against the activities of the defendants which are, if as alleged, violative of its property rights irrespective of any and all the statutes which have been passed by Congress to promote the free flow of commerce, to prescribe the legitimate rights of employees and employers in labor disputes, and prohibiting (certain) combinations and conspiracies in restraint of trade or commerce, and also irrespective of any part of or all of the Constitution of the United States.
'It may be, though it has not been made clear to me, that plaintiff could have proceeded under one or more of the federal laws or provisions of the United States Constitution, but I know of no law or rule of law which compelled it to do so. Likewise, I know of no law or rule of law which holds that this Court has jurisdiction simply because it might have had jurisdiction of an action which plaintiff might have begun.' (Case remanded.)
In a situation similar to this one in the case of H.N. Thayer Co. v. Binnall, D.C., 82 F.Supp. 566, 569, where removal was sought on the ground that the action arose under the LMRA the court, in granting a motion to remand to the state court, made the following observation: 'Plaintiffs in their complaints have nowhere expressly laid claim to any right or remedy given them by any federal law. They contend that their complaints are based solely on alleged unlawful interference with their contractual rights and right to do business as given them by the common law of Massachusetts, and that they ask only the remedy of injunction traditionally available to them under the equity jurisdiction of the courts of that state. A fair interpretation of their bills of complaint shows that that is the only cause of action which they purport to set forth. To construe these bills as stating a cause of action which plaintiffs may have under federal law, but which they have elected not to pursue, would be a tortured interpretation of them which I cannot adopt.' 82 F.Supp.at page 569.
In remanding to the state court the case of Zaleski v. Local 401 of the United Electrical Radio and Machine Workers of America, D.C., 91 F.Supp. 552, 553, which presented similar considerations of revocation of authorization of dues deduction following the separation of the union from the CIO, Chief Judge Fake of this court, made the following comment:
'Is the issue so raised cognizable in the United States District Court in the absence of diversity of citizenship? The answer is, No. It is urged, however, that Sections 301-302 of the Labor Management Relations Act of 1947, 29 U.S.C.A. §§ 185, 186, vest jurisdiction. It is my thought that these Sections have no application here since Section 301 restricts actions to suits between an employer and a labor organization or suits between labor organizations; and Section 302 provides against an employer paying over money to any representative of employees, expressly excepting payments of moneys deducted from wages for payment of union dues, an old practice not dependent on statute.
'It is urged that Section 1337, Title 28, U.S.C.A., vests this Court with jurisdiction by the following language:
"The District Courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce.'
'This suit is not an action arising on any act of Congress whatever. The authority of employees to make assignments arises at common law, and the permissive language of the statute recognizes that common law right.'
Neither the language of these complaints nor the substance of the allegations thereof furnish a basis of right created by federal statute which would justify the removal of the cases to this court from the state tribunals in which they were instituted.
The removal of the Stephens case is challenged on the further ground that the defendant UOPWA alone applied for removal and that the other defendants, Hancock and individual officers of UOPWA, did not join in the application. The individuals were officers of the UOPWA and being so designated there could be no practical object in requiring their joining in the application and this technical omission may be overlooked. However, the failure to join Hancock in the application bears more searching inquiry. Generally, all defendants must join in a petition for removal from a state court to a federal court if the removal is sought on the ground that the action arises under the Constitution and laws of the United States. Chicago, Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 20 S. Ct. 854, 44 L. Ed. 1055; Driscoll v. Burlington-Bristol Bridge Co., supra, 82 F.Supp.at page 984. UOPWA, however, contends that the general rule does not apply here because Hancock is only a stakeholder or a nominal or formal party in the nature of which joinder is unnecessary. Bailen v. Deitrick, 1 Cir., 84 F.2d 375. We cannot agree that Hancock was a mere passive stakeholder or formal party in the Stephens case. It was committed to perform the positive duty of collecting the dues pursuant to the authorizations as a continuing obligation if judgment were found in favor of the UOPWA. See, Edelstein v. N.Y. Life Ins. Co., D.C., 30 F.Supp. 1; cf. Salem Trust Co. v. Manufacturers Finance Co., 264 U.S. 182, 44 S. Ct. 266, 68 L. Ed. 628, 31 A.L.R. 867.
UOPWA also asserted that it was unnecessary to have Hancock join with it in removing the Stephens case because a realignment of the parties would place Hancock on the side of the individual plaintiffs. It is contended by UOPWA that realignment is warranted by reason of its allegation in its petition for removal made under oath and not rebutted as follows: 'This suit was instituted for the purpose of avoiding remittance by the defendant company to the defendant union of the dues to which the said defendant union is entitled under the said collective labor agreement. Upon information and belief it was instituted pursuant to a collusive agreement between the plaintiffs and the defendant company to interfere with the certification, collective bargaining and contract rights of the defendant union; the company (the plaintiff in the other action referred to below) was made a defendant herein, although its interests as aforesaid in avoiding payments to the union and compliance with the contract were those of the plaintiffs, and the UOPWA was deliberately omitted as a party defendant for the purpose of obstructing its protection of its contract, certification and collective bargaining rights.' (Paragraph 6.)
It will be observed that this allegation fails to charge that the parties collusively agreed to improper joinder for the purpose of defeating removal. In Updike v. West, 10 Cir., 172 F.2d 663, 665, the court made the following comment concerning elements necessary to be alleged under these circumstances: 'A separable controversy of the requisite amount, wholly between citizens of different states, may be removed to the Federal court, notwithstanding the presence of a resident defendant, if it is shown that the resident defendant was made a party for the fraudulent purpose of defeating removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S. Ct. 35, 66 L. Ed. 144 (other cases cited). But fraudulent joinder, like any other allegation of fraud, must be pleaded with sufficient certainty to justify the conclusion that the joinder was a fraudulent device to prevent removal. A mere allegation of fraudulent joinder is not sufficient. (Commonwealth of) Kentucky v. Powers, 201 U.S. 1, 34, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann.Cas. 692 (other cases cited). The pleader is the architect of his own law suit, and the misjoinder of parties or causes of action does not without more amount to a fraudulent joinder. There must be a deductible bad faith purpose to defeat Federal jurisdiction. Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206, 26 S. Ct. 161 50 L. Ed. 441, 4 Ann.Cas. 1147 (other cases cited).'
Failure of the denial of the allegations contained in paragraph 6 of the petition for removal can only have significance if the charges encompass the element that the parties acted in fraud and collusion to defeat removal. Todd v. Chicago, M. & St. P. Ry. Co., D.C., 291 F. 910. It is clear that the said allegations do not achieve such purpose, and therefore they are insufficient to excuse the joining of Hancock as is the contention of UOPWA.
Since paragraph 6 of the petition has no bearing as a ground for removal improper alignment of the parties would have significance only as a basis for excusing the failure to join Hancock in the application for removal. Realignment of the parties if it is to be made would necessarily emanate from the complaint in the Stephens case and there is no justification in it to find that the interests of the plaintiffs and Hancock are identical notwithstanding the insinuations raised by UOPWA.
Therefore in the Stephens case the failure to join Hancock in the removal application is an additional reason for remanding that case.
UOPWA has filed a counterclaim in the Hancock case and a counterclaim and cross claim in the Stephens case. It offered an elaborate argument urging that jurisdiction should be assumed over these counter and cross actions independently of whether there is jurisdiction over the complaints. We cannot concur with the theory that the recent amendments to the judicial code governing procedure for removal contemplates the remanding of the complaint and the removal of a counterclaim or cross claim filed thereto as in these cases. To so hold would completely abort the conception that removability is to be tested by the averments contained in the complaint and would enable a defendant to accomplish his purpose of removal by indirection rather than by direction.
The UOPWA has additionally moved that a temporary injunction issued by the state court in the Stephens case restraining payment to it of dues collected by Hancock should be dissolved. The dissolution of the state court injunction was sought whether or not the case was remanded. The point was pressed because of the hardship to which UOPWA is exposed during the months when its income has been cut off by reason of the injunction, and it was asserted that the small number of plaintiffs in the Stephens case could not be representative of the class of workers for which they sought to act because a very large number of the workers had recently signed new authorizations. However, in the light of this decision to remand the cases other means will have to be taken in the state court to expedite definitive action releasing or denying the funds to UOPWA for this court is without jurisdiction to dissolve the injunction of the state court under circumstances of the remand. See, Mayflower Industries v. Thor Corporation, 3 Cir., 184 F.2d 537.
Motions to consolidate the actions and to dismiss the complaints by UOPWA obviously must also be denied in view of this decision to remand.
CIO challenged the jurisdiction of this court upon the ground that 29 U.S.C.A. §§ 185(a), 186 are unconstitutional. In the light of the disposition of the motions herein it is unnecessary to resolve the constitutional question posed by the CIO.
Many briefs containing a large number of points ingeniously buttressed by myriad decisions have been submitted by counsel for the parties to this litigation, particularly the UOPWA. It is impossible to even adumbrate all of the arguments raised without unduly protracting this already overly long opinion. All of the arguments have been considered and endeavor has been made to treat the main stream of them herein.
From the suits instituted here and the many similar actions encountered in other jurisdictions none of which has entered more than its preliminary stage it is evident that the principal parties are jockeying for a forum in which the basic issues may be determined. Without insight as to the strategy that dictates the tactics employed it remains the fact that much time is being lost in arriving at individual workers' wishes with regard to financial support of the organizations of their choice are halted in a kind of limbo which should not be. Delay as it is being experienced is inherent in the court proceedings invoked. Perhaps the effective and prompt dispatch of litigation which now characterizes the New Jersey court system may be utilized in promptly prosecuting these cases to conclusions determinative of the important issues raised in them.
Orders for remand of both cases should be submitted.