comment by our Circuit Court in the Pentland et al. v. Dravo, supra.
I am quite frank in stating that when my opinion of September 18, 1946 was written, I was under the impression that the facts in the instant case fell within the True Class Suit category. However, after deep and searching thought, I do not believe my conclusion was sound and I, therefore, now find that the facts in the instant case fall within the category or classification of a Spurious Class Action.
As such, should the motion of the plaintiffs who desire to intervene, either under the motion of July 2, 1946 which involves 58 additional trainmen, or the motion of October 7, 1946 which involves 29 additional trainmen, be granted?
It is admitted by counsel for both party litigants that the great majority of all parties who desire to intervene in both motions do not possess the requirements of diversity of citizenship or the jurisdictional amount of $ 3,000.
Furthermore there is a common question of law existing between all parties, and the original plaintiffs had the requirements of diversity of citizenship and jurisdictional amount.
The trainmen who desire to intervene as plaintiffs have the same common question of law as the original plaintiffs, and should, therefore, be entitled to intervene regardless of the amount of their claims or their diversity of citizenship. Moore's Federal Practice, Vol. 2, p. 2241; Cyclopedia of Federal Procedure, 2d Ed., Vol. 6, Section 2389, p. 498; 13 University of Cincinnati L.Review 163.
Rule 24(b) of Federal Rules of Civil Procedure gives the Court, in the exercise of its discretion, the right to permit anyone to intervene where the action has a common question of law or fact existing. I am aware that said discretion should be exercised carefully but I do not believe any substantial prejudice or inconvenience will be caused the defendant by adjudicating the common question of law involved herein as to both the original plaintiffs and those trainmen who desire to intervene as party plaintiffs. If the common legal question is decided in favor of the plaintiffs and the factual situation becomes involved or too burdensome to the defendant as to the amount of recovery to which each plaintiff should be entitled, appropriate consideration can be given that matter at the proper time.
There has been no request for a jury trial in either the complaint or amended complaint. As a result of which, under the provisions of Rule 53(a) and (b) of the Federal Rules of Civil Procedure, the Court could refer the matter to a master for the purpose of hearing testimony as to the amount of each plaintiff's claim and the detailed facts which give rise to said claim. In the alternative the Court could continue the case from time to time in order that full and ample opportunity would be available to the defendant to prepare or present its defense to the testimony which has been presented by the plaintiffs in support of their claims for recovery.
In the exercise of my discretion I will, therefore, permit the intervention under the provisions of Rule 24(b) of the Federal Rules of Civil Procedure, both as to the 58 plaintiffs referred to in the motion of July 2, 1946 for the reasons set forth herein, and the 29 plaintiffs referred to in the motion of October 7, 1946.
I believe Rule 24(b) was intended to permit intervention when the parties have either a common question of law or fact involved in a proceeding where the intervention will not unduly delay or prejudice the rights of the original plaintiffs or the defendant. Intervention being allowed here will avoid a multiplicity of suits, will dispose of the complete controversy existing between the parties, will save the time of the courts, and will in no way delay or prejudice the adjudication of the rights of the original parties. Western States Mach. Co. v. S. S. Hepsworth, D.C., 2 F.R.D. 145, 147; Brotherhood of Locomotive Engineers et al. v. Chicago. M. St.P. & P.R. Co., D.C., 34 F.Supp. 594; Woburn Decreasing Co. of New Jersey et al. v. Spencer Kellogg & Sons, Inc., D.C., 3 F.R.D. 7, 9; Securities and Exchange Commission v. U.S. Realty & Improvement Co., 310 U.S. 434, 459; 60 S. Ct. 1044, 84 L. Ed. 1293; Allen Calculators, Inc. v. National Cash Register Co. et al., 322 U.S. 137, 141, 64 S. Ct. 905, 88 L. Ed. 1188.
All parts of the opinion filed September 18, 1946, in connection with the application for leave to intervene which are inconsistent with this opinion, are recalled or reversed. See 68 F.Supp. 395.
There remains for consideration the second question: 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 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 the Court in its opinion of September 18, 1946 believed the motion to intervene should not have been granted under the provisions of Rule 23(a)(3) or Rule 24(b) of the Federal Rules of Civil Procedure, it was stated that the question of jurisdiction is always open for the consideration of the Court, and I believed it proper for the Court to consider whether or not the petition to intervene should be allowed under any other basic principle of law, or by a statute of the United States. Black & Yates v. Mahogany Association, Inc., 3 Cir., 129 F.2d 227, 236, 148 A.L.R. 841.
It is contended by the defendant that the allegations of fact in the original complaint set forth the basic right of recovery of the plaintiffs to be on a contract executed by the bargaining representative of the plaintiffs with the defendant, and that no mention is made in the complaint of the Railway Labor Act. This is true.
The original plaintiffs and those which the Court permitted to intervene in the opinion filed on September 18, 1946, have filed an amended complaint, and reference to the same will show, more particularly Paragraphs III(b), XII(d), XII(e) and XII(f), that jurisdiction of the Court is now also based on the provision of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.
The plaintiffs furthermore contend that the defendant agreed to be bound by an award of the National Railroad Adjustment Board, and that an award has been made by said Board against the defendant in favor of an employee who had performed services such as are complained of in this suit.
That although the defendant paid employees similar to those involved in this proceeding, the defendant refused to pay the plaintiffs whose claims are of the same kind and character as those which the defendant did pay after the award of the National Railroad Adjustment Board.
That the plaintiffs in this proceeding were denied, through discrimination on the part of the defendant, from presenting their claims upon which this suit is based to the National Railroad Adjustment Board, and that said action of the defendant is violative of the Railway Labor Act.
The defendant contends that the facts in this case do not arise under any provision of the Railway Labor Act, but rest solely on contract and as a result thereof the federal court does not have jurisdiction on that basis.
I stated in my opinion of September 18, 1946:
'Under the Judicial Code, 28 U.S.C.A. § 41, subsection (8), it is stated that the district court shall have jurisdiction, inter alia, as follows: 'of all suits and proceedings arising under any law regulating commerce.' The Railway Labor Act, 45 U.S.C.A. § 151 et seq. provides, inter alia, that the purpose of the act is 'for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions'; and 'for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' It places upon carriers and employees the duty of exerting every reasonable effort to settle said disputes by agreement, and prohibits the carrier from altering the rates of pay, rules, or working conditions except in the manner provided by the agreement or by the Act. Terminal R. Association v. Brotherhood of Railroad Trainmen et al., 318 U.S. 1, 5, 63 S. Ct. 420, 87 L. Ed. 571.
'Also the fact that by the Railway Labor Act Congress has indicated its purpose to make negotiation between carrier and employees obligatory in case of industrial controversy, is in itself a declaration of public interest and policy. The power of Congress over interstate commerce extends to such regulations of the relations of rail carriers to their employees as are reasonably calculated to prevent the interruption of interstate commerce by strikes and their attendant disorders. The peaceable settlement of labor controversies that may seriously impair the ability of an interstate carrier to perform its service to the public is a matter of public concern. Virginian R. v. Federation, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789.
'Jurisdiction of the federal court, under the provisions of the Judicial Code giving federal jurisdiction of actions arising under any 'law regulating commerce,' is independent of the amount in controversy or diversity of citizenship. The only pre-requisite is that the question which exists must arise under a federal and not under a state law regulating commerce. Young & Jones v. Hiawatha Gin & Mfg. Co., D.C., 17 F.2d 193; Primakow v. Railway Express Agency, D.C., 57 F.Supp. 933; Mulford et al. v. Smith et al., 307 U.S. 38, 59 S. Ct. 648, 83 L. Ed. 1092.
'The Railway Labor Act is the means which Congress chose to secure the uninterrupted service of interstate railroads and is a federal law which regulates interstate commerce. Virginian R. v. Federation, 300 U.S. 515, 553, 57 S. Ct. 592, 81 L. Ed. 789.'
In my prior consideration of this question, I was of the impression and opinion that the suit in the instant case did present a cause of action under the Railway Labor Act and involved a matter pertaining to interstate commerce.
The Court raised this question on its own initiative, having in mind that it is proper for the Court to consider its jurisdiction at any time. However, the plaintiffs or the defendant had not argued or discussed this phase of jurisdiction, and no opportunity existed for either party litigant to argue the question or present authorities in support of their respective positions. That is why I believe it advisable to consider the objection to the present motion for leave to intervene also as a petition for rehearing on the first objection to the motion for leave to intervene.
The authorities cited by this Court in support of its conclusion that the facts in the instant case indicate a cause of action arising under the Railway Labor Act, see 68 F.Supp. 395, 403.
I believed sufficient similarity existed to bring this proceeding within the rules of law therein expressed.
The plaintiffs in addition to relying on the position formerly taken by the Court have in their amended complaint set forth allegations, Paragraphs III(B), XII(D), XII(E), XII(F), wherein it is claimed in substance that the defendant has failed to comply with an order of the First Division of the National Railroad Adjustment Board which governs and controls the action of the plaintiffs against the defendant in this proceeding.
It is a settled rule of law that a suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy, respecting the validity, construction or effect of such a law, upon the determination of which the result depends. Teague v. Brotherhood of Locomotive Firemen, etc., 6 Cir., 127 F.2d 53, 55.
I believe that my position was not well taken in the conclusion which I formerly reached, in holding that the facts in the instant case raise a question under the provisions of the Railway Labor Act. I am now convinced that the present suit is based on the provisions of a private contract entered into between the bargaining agent of the plaintiffs and the defendant company. The obligation of the contract is a creation of the state, no federal right will support the claim of any one of the plaintiffs that the defendant has failed to comply with a general recognized custom which the defendant understood and which was intended to be part of the contract signed by the defendant with the bargaining agents of the plaintiffs. I am unable to find any provision in the Railway Labor Act which protects or governs the right of any of the plaintiffs in this proceeding in connection with their right of recovery, and as a result thereof there is no federal question for determination. Teague v. Brotherhood of Locomotive Firemen, etc., 6 Cir., 127 F.2d 53, 55, 56; Randolph et al. v. Missouri-Kansas Texas R. Co. et al., D.C., 68 F.Supp. 1007.
Furthermore it has been held that the powers conferred on the Railroad Labor Board, and I believe the same rule of law would have application to the powers conferred under the Railway Labor Act, are advisory only, with no coercive effect whatsoever other than the sanction and force of publicity and public opinion. In other words, the Railroad Company could not be compelled by law to comply with a judgment rendered by the National Railroad Adjustment Board by virtue of the authority delegated by the Railway Labor Act since this Board was designed to provide a tribunal to determine, but not to enforce, legal rights and obligations of railway employees and employers. Even if the defendant would embody the order of the National Railroad Adjustment Board in a working agreement with its employees, said agreement would become a matter of a contract between the parties, and any rights that the employees might have in connection therewith arose not out of the statute that set up the Board, not out of the action of the Board in formulating rules, but out of the contract itself. Applying this rule of law to the facts which are set forth in the amended complaint, the right of action which exists does not arise under any statute of the United States or more particularly the Railway Labor Act so as to confer jurisdiction on this basis upon the United States District Court. Barnhart v. Western Md. R. Co., 4 Cir., 128 F.2d 709.
Unless the case involves the right under the Railway Labor Act which is enforceable by the Court, the action is not one arising under any law regulating commerce and, therefore, not under the original jurisdiction of the District Court. General Committee v. Missouri K.T.R. Co., 320 U.S. 323, 337, 64 S. Ct. 146, 88 L. Ed. 76; Gully v. First National Bank in Meridian, 299 U.S. 109, 113, 57 S. Ct. 96, 81 L. Ed. 70.
Nothing in the present suit involves the validity, construction or affect of the Railway Labor Act upon which the result of this action depends. Although the parties to this proceeding were governed by the act, the right of action, if one exists, is based on the alleged breach of a custom which it is alleged should be considered a part of the contract; the cause of action does not arise under the Railway Labor Act but only from the consequent contractual relations of the parties. The wrongful breach of such contractual relations does not confer jurisdiction upon the federal court unless there is a diversity of citizenship and the jurisdictional amount involved.
I, therefore, deny the motion to intervene in each instance on the theory of interstate commerce or that a question exists in the instant suit which involves any provisions of the Railway Labor Act. All parts of the opinion which appear in 68 F.Supp. 395, which are inconsistent with the conclusion just expressed, are recalled or reversed.
It is apparent that the conclusion reached by the Court in allowing the 58 plaintiffs to intervene on the basis of the motion filed July 6, 1946, and the allowance granted to the 29 additional plaintiffs to intervene on the basis of the motion filed October 7, 1946, is the same as that reached in the opinion filed September 18, 1946, although there is a divergence in the reasons assigned.
In other words that the motion for leave to intervene in each instance should be granted for the reason that the cause of action in the instant case is a Spurious Class Suit. Under the provisions of Rule 24(b) of the Federal Rules of Civil Procedure since a common question of law exists, both as to the original plaintiffs and intervening plaintiffs, the Court in the exercise of its discretion will grant intervention since I do not believe that any undue delay or prejudice will be caused the original plaintiffs or defendant in so doing.
An appropriate order will be filed.
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