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March 7, 1947

SHIPLEY et al.

The opinion of the court was delivered by: GOURLEY

On April 10, 1946, a class action was instituted by 24 named plaintiffs, each of whom was a trainman, against the Pittsburgh & Lake Erie Railroad Company, a Pennsylvania corporation, claiming compensation for coupling air hose. The complaint states that it is a class action where there is 'A common question of law or fact affecting their several rights and a common relief is sought.' In the original complaint each of the named plaintiffs possessed requisite diversity of citizenship and a claim in the proper jurisdictional amount to give the federal court jurisdiction of the action.

 'Rule 23. Class Actions

 '(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

 '(1) * * *

 '(2) * * *

 '(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.'

 'Rule 24. Intervention * * *

 '(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'

 On September 18, 1946, this Court filed an opinion, 68 F.Supp. 395, holding that since the intervenors' claims did not present a common question of law and fact, the movants had no standing to intervene under Rules 23 and 24. That the Federal Court had jurisdiction of the intervenors' claims because they arise under the Railway Labor Act, 45 U.S.C.A. ยง 151 et seq., which is a law regulating interstate commerce, and, therefore, under the provisions of the Judicial Code the Court had jurisdiction independent of the amount in controversy or diversity of citizenship. On the same day the Court entered an order permitting the movants to intervene.

 On October 7, 1946, an additional 29 trainmen of the Pittsburgh & Lake Erie Railroad filed a similar motion for leave to intervene. Of the 29 movants only four, namely Charles S. Strausbaugh, John Slavins, R. J. Hamilton and Arthur N. Donahue, assert that they are citizens of a state other than Pennsylvania, and have claims in excess of $ 3,000 exclusive of interest and costs. Each of the 25 other movants is either a citizen of Pennsylvania or has a claim less than the jurisdictional amount.

 The questions which have been presented for the consideration of the Court are somewhat identical with those that existed when the motion for leave to intervene was filed by 58 additional plaintiffs on July 2, 1946. See Shipley et al. v. Pittsburgh & L.E.R. Co., D.C., 68 F.Supp. 395.

 Since the Court's opinion was filed on September 18, 1946, and the argument in connection with the motion to intervene by 29 additional plaintiffs, which was filed on October 7, 1946, the plaintiffs have filed an amended complaint.

 The defendant objects to the motion of the plaintiff for leave to permit the intervention of 29 additional plaintiffs. The Court will consider this objection de novo, and the motion for leave to intervene of 58 additional plaintiffs filed on July 2, 1946, as a petition for rehearing of the order and opinion filed by the Court on September 18, 1946.

 This is being done for the legal questions involved are the same although the allegations in the pleadings are different in some respects as is apparent from a reading of the complaint and amended complaint. There are two questions involved:

 1. Where a class action has been filed, in which jurisdiction in the original proceeding is based on diversity of citizenship and the amount involved is in excess of $ 3,000, does the Court have jurisdiction to permit the intervention of other claimants in the class as new plaintiffs under the provisions of Rules 23(a) Paragraph (3) and 24(b) of the Federal Rules of Civil Procedure, although there is no diversity of citizenship between the intervenors and the defendant, and the intervenors' claims are less than $ 3,000 in each instance?

 2. In a class action brought on a contract entered into between the bargaining representative of the class and a railroad, may other members of the class not possessing both of the jurisdictional requirements of diversity of citizenship and a claim in excess of $ 3,000 exclusive of interest and costs intervene on the ground that the Railway Labor Act, regulating interstate commerce, is involved?

 When consideration was given the first question herein involved, the Court said in its opinion (see 68 F.Supp. 395, 399):

 'Each of the plaintiffs involved in this proceeding has a common question of law as to whether or not the contract executed with the defendant is subject to the custom, or established and habitual practice, upon which it is claimed that the right of recovery exists. However, each of the plaintiffs allege that certain services were performed for the defendant which were not required during the period, to wit, beginning on the date which immediately precedes by six (6) years the date of the filing of this action, April 10, 1946, and ending December 1, 1944. It is apparent that some of the plaintiffs might be found to have performed the services complained of, and others may not be able, for one reason or another, to establish or prove that the services were performed and, therefore, no right of recovery might exist.

 'It would, therefore, appear that the rights of the individual plaintiffs and the persons who desired to intervene are separate causes of action, and they have no right to a common fund or to common property, but each case would rest on its individual facts as to recovery and the amount thereof from a factual standpoint. As a result thereof, even if the legal question as to whether or not the contract can be modified or abrogated, as a result of the custom which exists would be interpreted favorably as contended by the plaintiffs, each of the plaintiffs would be obligated to prove that said services were performed in each instance, and the periods of time when performed, and it is, therefore, apparent that one of the plaintiffs may be able to support his claim and another plaintiff may not. It therefore, appears to me that although there is a joint or common interest on the part of the plaintiffs in one part of the subject matter or from a legal standpoint, there is not a joint and common interest in another part of the controversy or from a factual standpoint. It is a definite and general rule that when several plaintiffs assert separate and distinct claims in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of a district court, and those amounts cannot be added together to satisfy jurisdictional requirements. Pinel v. Pinel, 240 U.S. 594, 36 S. Ct. 416, 60 L. Ed. 817; Grand Rapids Furniture Co. et al. v. Grand Rapids Furniture Co., 7 Cir., 127 F.2d 245; Clark et al. v. Paul Gran, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001.

 'It is the policy of Congress to have citizens of different states settle their disputes in state courts unless the matter in controversy exceeds the sum of $ 3,000, or unless the matter involves a federal statute, and this same rule has application between citizens who reside in the same state. This rule is only subject to modification when the plaintiffs unite to enforce a single title or right in which they have a common, undivided interest, both as to law and facts, and, in such event, it is enough if their interests collectively equal the jurisdictional amount. Sturgeon v. Great Lakes Steel Corp., 6 Cir., 143 F.2d 819; Healy v. Ratta, 292 U.S. 263, 54 S. Ct. 700, 78 L. Ed. 1248; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001; Gibbs v. Buck, 307 U.S. 66, 59 S. Ct. 725, 83 L. Ed. 1111. * * *

 '(That) each of the plaintiffs have a common and equal interest in the problem as to whether or not, under the terms and provisions of their contract, a right of recovery exists, which is a question of law, but they certainly do not have a common and undivided interest to any particular fund since one of the plaintiffs may be entitled to recovery and another may not, depending on the ability of each plaintiff to establish and prove that certain services were performed, the time of ...

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