The opinion of the court was delivered by: BARD
Defendants have filed a motion to dismiss the amended complaint.
On June 10, 1941, a bill of complaint was filed on behalf of Philadelphia Local 192 of the American Federation of Teachers by Mary Foley Grossman, Trustee Ad Litem and as an individual and President of the Association against the American Federation of Teachers, an unincorporated association, and its National Executive Council by George S. Counts, Ruth Wanger and Irvin R. Kuenzli, Trustees Ad Litem, and George S. Counts, individually and as President, Ruth Wanger, individually and as Vice President, and Irvin R. Kuenzli, individually and as Secretary-Treasurer of the Association, and all other officers and members of the National Executive Council of the Association, asking the court to restrain the defendants, (1) from making effective any revocation of the charter of Local 192 American Federation of Teachers and demanding the charter or seal of the Local; (2) from issuing any new charter to any individuals in the City of Philadelphia, pending determination of an appeal; (3) from interfering with the plaintiffs' rights as guaranteed under the constitution of the American Federation of Teachers; (4) from interfering with the proper conduct of the business of the Local, pending determination of the appeal; (5) asking the court to require the defendants to recognize the credentials of Local 192 at the next convention of the American Federation of Teachers; (6) to require the defendants to present the appeal of the Local at the next convention of the American Federation of Teachers, and that plaintiff Local be afforded an opportunity to exhaust its remedy in such association by the appeal, and otherwise; (7) and such further and equitable relief be granted as the facts make necessary. The grounds for the granting of this relief were the alleged illegal and arbitrary revocation of the charter of the Local in that the charter was revoked after being submitted to the referendum vote of the general membership of the American Federation of Teachers by the National Executive Council of the association.
The plaintiffs further allege that the manner of conducting the referendum was illegal and unfair and that an appeal is now pending from the action of the National Executive Council to the next convention of the American Federation of Teachers. Plaintiffs allege that they have property rights in the dues, assessments and per capita taxes, which they have paid into the treasury of the American Federation of Teachers, in their status in the labor movement by reason of their affiliation with the American Federation of Teachers and American Federation of Labor, in the use of the name and seal of the Federation, and in the election of delegates to conventions, officers of the federal representatives at various labor organization meetings, conventions, and bodies, and in negotiations and transactions with their employers.
Motions to dismiss were filed on behalf of the American Federation of Teachers, George S. Counts, Ruth Wanger, and on behalf of the National Executive Council by George S. Counts, Ruth Wanger and Irvin R. Kuenzli.
On October 19, 1941, an amended bill of complaint was filed which differs from the original bill in that suit is brought by Philadelphia Local 192 of the American Federation of Teachers, an unincorporated and trade-union association, by Mary Foley Grossman, Trustee Ad Litem against the American Federation of Teachers, an unincorporated and trade-union association by George S. Counts, Trustee Ad Litem and as President. The individuals named in the original bill are no longer made parties plaintiff or defendant. The amended bill of complaint is substantially the same as the original bill of complaint, with a slight variation in the relief prayed for.
A motion to dismiss on behalf of the American Federation of Teachers was filed to the amended bill of complaint.
The argument of the defendants in support of the motion to dismiss is based on the following grounds: No diversity of citizenship; no diversity of citizenship set forth in the complaint; no showing of the requisite jurisdictional amount; no property right is involved; and determination of the controversy by the National Executive Council of the defendant should not be disturbed.
Rule 17 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that the capacity to sue or be sued shall be determined by the law of the state in which the district court is held, and the rule in Pennsylvania is settled that an unincorporated association may be sued in equity by naming several of its members as representative of the entire body. Maisch v. Order of Americus, 223 Pa. 199, 72 A. 528; Wolfe v. Limestone Council No. 373, 233 Pa. 357, 82 A. 499; Oster v. Brotherhood of Locomotive Firemen and Enginemen, 271 Pa. 419, 114 A. 377.
By Rule 23 of the Rules of Civil Procedure a class action may be instituted wherever the right sought to be enforced for or against a class is joint or common and the parties to be sued may be sued in the name of one or more representatives of the class which they represent.
Accordingly, the federal courts have jurisdiction in class actions if brought in the name of a representative who is a citizen of a different state than the defendant, or the person named as the representative of the defendant. See Civil Procedure Rule 23; International Allied Printing Trades Association v. Master Printers Union of New Jersey, D.C., 34 F.Supp. 178; State of North Dakota v. North Central Association, D.C., 23 F.Supp. 694; Moreschi v. Mosteller, D.C., 28 F.Supp. 613; McGarry v. Lentz, D.C., 9 F.2d 680; 2 Moore Federal Practice under the new Federal Rules, p. 2001.
In the instant case the office and place of business of Local 192, the plaintiff, is in Philadelphia, Pennsylvania, and its named individual representative is a citizen of the same place. The office and place of business of the defendant federation is in Chicago, Illinois, and its named individual representative is a citizen of the state of New York.
While it would appear proper, and might have been better practice, to bring the action in the present case by Grossman as representative of the local, against Counts as representative of the national, rather than in the name of the local by Grossman, trustee ad litem, against the national by Counts, trustee ad litem, the rule would appear ...