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March 28, 1960

Joseph RIZZO, Jack Lanzet, Rubin Goldman, Ira Kolodny, Paul Hammig, Daniel Winfield and Fred Spitaletta, Plaintiffs,
Fred A. AMMOND, as Trustee for Retail Clerks and Food Handlers Union, Local 1262; William A. McLaughlin, as deputy-Trustee and Acting Secretary-Treasurer of Retail Clerks and Food Handlers Union, Local 1262; James A. Suffridge, as President of Retail Clerks International Association, AFL-CIO; Vernon A. Housewright, as an officer of Retail Clerks International Association, AFL-CIO; and Retail Clerks International Association, AFL-CIO, Defendants

The opinion of the court was delivered by: WORTENDYKE

This case is before me on defendants' motion to dismiss the complaint pursuant to F.R.Civ.P. 12, 28 U.S.C., more particularly, under subsection (b) of the Rule, for the following grounds: (1) lack of jurisdiction of the causes of action alleged; (2) lack of jurisdiction over the defendants; (3) non-joinder of indispensible parties; (4) lack of authority for plaintiffs' claimed representative status; and (5) 'unclean hands' on the part of the plaintiffs.

Plaintiffs in this action, seven in number, are members, and two of them are officers, of Local No. 1262 (Local) of Retail Clerks International Association, AFL-CIO (International). They sue in their own right, and ostensibly in behalf of all of the members of the Local. Named as defendants are the president and secretary-treasurer (Suffridge and Housewright) respectively, of International, International as an unincorporated labor organization, and two other individuals (Ammond and McLaughlin) members of International; Ammond having been appointed Trustee by Suffridge on January 5, 1959, with authorization to appoint a deputy to assist him in his duties as such Trustee, and McLaughlin having been appointed as such deputy trustee in compliance with such authorization. The appointment of Ammond by Suffridge was by virtue of provisions of section 12(s) of International's constitution, a copy of which is attached to the complaint. *fn1" There appears to be no allegation in the complaint indicating that the plaintiffs in this action have invoked or unsuccessfully attempted to invoke the remedies provided by the terms of International's constitution for reviewing the action of International's president in appointing the trustee, or of any actions of the trustee or deputy trustee, of which the plaintiffs complain.

 Plaintiffs allege that Local 1262 is comprised of over six thousand members, and from uncontradicted affidavits presented upon the present motion it appears that International is composed of 357 Locals, scattered throughout the United States, Puerto Rico and Canada, having an aggregate membership of over 350,000 persons, each of whom, as a member of some Local, is ipso facto a member of International. Thousands of such members are citizens of New Jersey.

 Plaintiffs' principal subject of complaint relates to the conduct of the affairs and handling of the property of Local under the trusteeship created in January, 1959, pursuant to the provisions of section 12(s) of International's constitution. The operation of this trusteeship commenced when defendant Ammond assumed control over the Local, and appointed McLaughlin as his deputy. It is alleged that the members of Local were deprived by the trusteeship of their right to elect delegates to International convention held in June, 1959, and of their right to participate in the adoption of amendments to the constitution of International, the nomination and election of its officers, and transaction of its business. Complaint is also made of the conduct by International's president of the duties of his office, and his handling of International funds. Accordingly the plaintiffs seek to have Local relieved of the trusteeship, Local officers restored to office, and a Local election held under the supervision of the Court. They pray that the assets and records of Local be restored to it, and that an accounting be had of the handling of Local's assets during the period of the trusteeship. In addition to injunctive relief against a continuance of certain practices by the defendants, plaintiffs seek recovery of damages, both compensatory and punitive. They also ask that International be enjoined from holding any election of officers in 1960, and from inviting nominations therefor between March and June of 1960 'unless such election is held under the supervision of this Court and pursuant to the provisions of the International constitution and the Landrum-Griffin Bill.' Further particularization of the forms of relief which the plaintiffs seek in this action is immaterial to the determination of the motion presently before me.

 In the present case the allegations of the complaint disclose that all of the plaintiffs are members of Local 1262. Two of them are officers of that Local. The acts of which plaintiffs complain are those of International, and acts of the individual co-defendants, performed under International's constitution. Complaint is made of Suffridge and Housewright as members and officers of International, of Ammond as a member of International and trustee of Local, and of McLaughlin as a member of International and deputy trustee of Local. Plaintiffs complain that, in his capacity as president of International, Suffridge violated the provisions of the International constitution in acting arbitrarily and capriciously in appointing Ammond trustee of Local 1262, and in failing to accord to the Local a hearing in accordance with section 12(s) of the International constitution. Not until we reach paragraph 18 of the first cause of action do we find, for the first time, a reference to a 'class', where it is alleged that 'plaintiffs and the members of the class represented by them were deprived of the right of representation' at International's convention held in California in June of 1959 (in this connection the date of the convention referred to is erroneously stated as 1955 in paragraph 18 of the first cause of action); that plaintiffs and the members of the so-called class were deprived of the right to take action against the officers of International at that convention; and that they were deprived of their right to seek the aid of other Local unions and delegates therefrom to rid themselves of the unwanted trusteeship. Plaintiffs also complain that although an ostensible hearing pursuant to section 12(s) of the International constitution was held on March 30, 1959, the hearing was a 'sham and illusory proceeding' so conducted that no officer or member of Local 1262 attending the hearing could express his views or defend himself from accusation, and that the hearing was conducted in a manner violative of rights not only created by the International constitution, but guaranteed by the Constitutions of the State of New Jersey and of the United States. More specifically, plaintiffs allege that the hearing was conducted by one McGuire, as Suffridge's assistant, and that one Osterling, a son-in-law of Suffridge, acted as secretary. Prescribed notice of the hearing was not given; the officers of Local were not permitted to be present or to appear by counsel; while the defendants were represented by International's general counsel.

 In none of the allegations set forth in any of the three separate causes of action of the complaint is there any hint, suggestion of allegation that any of the defendants is being sued in a representative capacity. Suffridge and Housewright are complained of because of their participation in the creation of the trusteeship, and because of their handling of the assets and affairs of International. Ammond and McLaughlin are complained of because of their conduct of the trusteeship in their respective capacities of trustee and deputy trustee. International is sued because, acting through its officers, it has allegedly deprived the plaintiffs and their fellow-members of Local 1262 of rights as members of that Local and as members of International.

 Upon the complaint and supporting affidavits, plaintiffs obtained from this Court, on November 20, 1959, an order directing the defendants to show cause on November 27, 1959 why the election of International officers for 1960 should not be enjoined. The return of that order to show cause has been adjourned by mutual consent from time to time, and is still pending.

 No answer has been filed by any of the defendants, but an order was made, upon their motion under Rule 12(e), for a more definite statement of the allegations of the complaint. Voluminous depositions have been taken by both parties, partly for use upon the return of the order to show cause, in lieu of oral testimony, and partly for purposes of discovery under Rule 26.

 Jurisdiction of the Subject Matter

 The complaint avers jurisdiction under 28 U.S.C.A. § 2201 and 2202 (Declaratory Judgments Act). No jurisdiction is conferred by that Act. Skelly Oil Company v. Phillips Petroleum Company, 1950, 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194. By alleging plaintiffs' residence in New Jersey, and that of the individual defendants in other States, coupled with the statement that International's principal office is in the District of Columbia, plaintiffs impliedly invoke the diversity jurisdiction of the Court, although no specific statement appears in the complaint respecting the pecuniary amount, if any, involved in the litigation (other than the prayers for compensatory and punitive damages).

 The defendants contend that because defendant International is an unincorporated association, including within its membership many citizens of the State of New Jersey, in which all of the plaintiffs reside, no diversity of citizenship exists sufficient to support jurisdiction in this Court; and that the requisite minimum amount involved to confer jurisdiction, even assuming diversity, has not been pleaded or shown to exist.

 The plaintiffs argue that the action is a class action, as contemplated by Rule 23(a) and that the representative status of the defendant International offsets the effect upon the Court's diversity jurisdiction of the conceded fact that many members of International are citizens of New Jersey.

 In Oskoian v. Canuel, 1 Cir., 1959, 269 F.2d 311, an issue arising in a representative action based upon diversity of citizenship was resolved in favor of the party asserting jurisdiction. That case originated in the United States District Court for the District of Rhode Island. Under Rhode Island law, an unincorporated association is suable by bringing the action against all of its members. The complaint sounded in tort. It alleged that, in a representation election conducted by the National Labor Relations Board among the employees of a certain bakery, Independent Bakery Workers Union prevailed and was duly certified by the Board as the collective bargaining agent for the employees in that establishment. In the same election Local 184 of the Bakery and Confectionary Workers International Union of America was rejected. It was alleged that despite that rejection, International conspired with the employer to interfere with and terminate the employment of the plaintiffs, who were members of the Independent. The plaintiffs were Massachusetts citizens, and purported to sue on behalf of themselves and others similarly situated, but they were treated by the District Court, 23 F.R.D. 307 as a 'spurious' class under Rule 23(a) and, because of that status, the Court held that rights of absent members of the class could not be adjudicated. The thirteen named defendants were alleged to be citizens of Rhode Island and members of International, and they were sued as members and representatives of an aggregate of more than 50,000 members of that unincorporated labor organization. One of the individual defendants was sued as a direct representative of International and two of the others as officers of the rejected Local. Defendants' motion to dismiss for lack of capacity in the defendants to be sued as representatives of International was denied. Leave to appeal was granted by the Circuit Court of Appeals, which affirmed the District Court. The reviewing Court, (269 F.2d 313) applied the general rule that 'capacity to be sued must be governed by the law of the state in which the district court is held' and distinguished Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 4 Cir., 1945, 148 F.2d 403, certiorari denied 332 U.S. 841, 68 S. Ct. 262, 92 L. Ed. 413. The law of Rhode Island permitted the maintenance of an action against an unincorporated association by suing the president and secretary. The Court indicated that, if the plaintiffs had complied with the procedure prescribed by the Rhode Island statute, Gen.Laws R.I.1956, § 9-2-12, the action would have been properly brought, under F.R.Civ.P. 17(b), against the union as an entity; but because of failure to join the president and secretary of International, the attempt to bring the action against it as an entity failed. Nevertheless, the Court stated that such failure to adhere to the requirements of the Rhode Island statute did not necessitate the dismissal of the action, since, 'although the substantive allegations of the complaint plead tortious conduct of the International Union, the individual defendants may have been named as representatives not of the Union but rather of a class comprising its members.' Reference was made by the Court to Lowry v. International Brotherhood of Boilermakers, etc., 5 Cir., 1958, 259 F.2d 568, and Fennell v. Bache, 1941, 74 App.D.C. 247, 123 F.2d 905, certiorari denied 1941, 314 U.S. 689, 62 S. Ct. 359, 86 L. Ed. 551.

 In the Lowry case, supra, the International was domiciled in Kansas but had a local lodge with many members in Mississippi. It was sued in the Southern District of Mississippi as an entity, together with certain non-resident officers fairly representing the members. The action was by a union member, resident of Mississippi, who had been suspended and expelled from the international and its local union. The case had been removed from the State court upon the asserted ground of diversity of citizenship, but the appellate court directed a remand because, despite the representative status of certain of the defendants, the fact that some of the members of International were residents of the State in which the plaintiff resided precluded the existence of the necessary diversity, and thereby destroyed Federal jurisdiction. At page 573 of 259 F.2d of the opinion the Court said:

 'While alternative methods of suit are provided by Rules 17(b) and 23(a), diversity of citizenship for federal jurisdiction must still exist between all of the parties on one side and all of the parties on the other. If the association is sued or sues as an entity under Rule 17(b), citizenship is determined by the individual members; if the association is a class party under Rule 23(a), the representatives named must have complete diversity from the other side. If the association in the capacity as an entity is joined with persons fairly representing that association as a class, then no doubt the association itself is a party and citizenship is determined accordingly. In the present case, that was the situation -- the defendant union, as an entity, was joined with named ...

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