Before BIGGS, Chief Judge, GOODRICH and HASTIE, Circuit Judges.
BIGGS, Ch. J.: The five appeals at bar were taken from judgments entered in two suits which were tried together by the court below and which arose from the same or connected operative facts.*fn1 The first suit, at C.A. No. 14,398 in the court below was brought by Underwood, a resident of Pennsylvania, President and Business Agent of Local 542 and of its affiliated branches in Pennsylvania, Delaware and New Jersey, against William E. Maloney, a resident of Illinois, President of the International Union of Operating Engineers with which Local 542 was affiliated. Underwood seeks injunctive relief to prevent Maloney individually and as representative of the International Union from enforcing an order of the General Executive Board of the International which removed him, Underwood, from his position as President and Business Agent of Local 542, from membership in the Local, and from all activities for a definite period subject to a proviso which need not be stated here, and which also fined him $3,500. Underwood also seeks damages.
The other suit, at C.A. No. 14,547 in the court below, was brought by Dawson and others, residents of Delaware of Pennsylvania, all members of Local 542, as a so-called "class" action on behalf of all of the members of Local 542, against Maloney and Wharton, a resident of Washington, D.C., trustee of Local 542, appointed such by Maloney, pursuant to provisions of the constitution and by-laws of the International, purportedly to the end that a strike of long duration should be terminated. Dawson and his associates seek a decree terminating the supervision of Local 542 by the International through its trustee, Wharton. They seek also the termination of an alleged conspiracy by Maloney, as President of the International, and others to interfere in the affairs of the Local, and a declaration that the actions and orders of Maloney, as President of the International, allegedly interfering with Local 542 in effecting collective bargaining agreements with employers were illegal. Dawson and his associates pray as well for a declaration voiding the suspension and the "conviction" of Underwood, President and Business Agent of the Local, referred to in the preceding paragraph of this opinion and they also seek to enjoin reprisals against Underwood because he brought the suit in the court below at its C.A. No. 14,071, referred to in note 1, supra. Dawson and his associates also pray for an accounting and other relief germane to that already referred to in this paragraph.
Jurisdiction of the suits in the court below is alleged to be based upon diversity of citizenship and jurisdictional amount. We are of the opinion that the suit at C.A. No. 14,547 should have been dismissed by the court below for want of diversity and that the major cause of action alleged at C.A. No. 14,398 in the court below does not lie within the diversity jurisdiction.
It will be observed that the suits at C.A. No. 14,547 and 14,398 with which we are concerned were brought against Maloney or Maloney and Wharton not only in their respective individual capacities but also as class representatives of the International Union. Putting to one side for the time being those aspects of the suits relating to Maloney and Wharton as individuals, it is clear that jurisdiction as to the International is sought to be maintained on the theory of a class suit in which only the citizenships of the representatives of Local 542 and of the International, the two respective "classes," need be considered for the purposes of maintaining diversity jurisdiction. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921).
Rule 17(b), Fed. Rules Civ. Proc., 28 U.S.C.,*fn2 provides that in cases by or against unincorporated associations, such as the International and the Local, where jurisdiction is bottomed on diversity, as contrasted with jurisdiction based on a federal question, the courts must determine the capacity of an unincorporated association to sue or be sued by reference to the law of the state in which the federal court is sitting. Worthington Pump & Machinery Corp. v. Local 259, 63 F.Supp. 411 (D.C. Mass. 1945); Sanders v. International etc., 120 F.Supp. 390 (D.C. Ky. 1954); American Newspaper Guild v. Mackinnon, 108 F.Supp. 312 (D.C. Utah 1952). Since 1939 the law of Pennsylvania has forbidden a suit by or against an unincorporated association to be maintained as a class action, and such suits must be deemed to be brought either on behalf of or against the unincorporated association itself.*fn3 Notes of Procedural Rules Committee to Rule 2230(a); 3 Goodrich-Amram, Standard Pennsylvania Practice 2152-2; 4 Anderson Pennsylvania Practice 195; Stern, Intra-Union Activities, Membership and Collective Bargaining Rights Under Pennsylvania law, 29 Temple L.Q. 38 (1955); Laudenslager v. Wiegner, 22 Lehigh Co., 137 (Pa. 1946); Winters v. New Johnny Jones Exposition, 6 Beaver 138 (Pa. 1944). Cf. Pennsylvania Co. v. Houseman, 341 Pa. 311, 316, 19 A.2d 148, 150 (1946). It follows, therefore, that under Rule 17(b) an unincorporated association must sue or be sued as an entity in the United States District Court for the Eastern District of Pennsylvania.
Jurisdiction nonetheless must be established and for jurisdictional purposes the citizenship of an unincorporated association is determined by the citizenship of its members. Therefore, where jurisdiction is sought to be founded on diversity of citizenship, the action being by or against an unincorporated association, as it must be applying the law of Pennsylvania which obviates class suits, the citizenships of the individual members of the unincorporated association must be shown to be wholly diverse from that of the opposing party or those of the opposing parties. Thomas v. Board of Trustees of the Ohio State University, 195 U.S. 207 (1904) and Rosendale v. Phillips, 87 F.2d 454 (2 Cir. 1937). See also 3 Moore's Federal Practice, 2 ed. Paragraph 17.25, pp. 1412-1413. Compare Fallat v. Gouran, 220 F.2d 325 (3 Cir. 1955).
From the affidavits filed by the Secretary-Treasurer of the International and from the record as a whole, it is clear that there is no diversity between Underwood and the International at C.A. No. 14,398, nor between the members of Local 542 and the International at C.A. No. 14,547. Pennsylvania Greyhound Lines, Inc. v. Amalgamated Ass'n etc., 105 F.Supp. 537 (W.D. Pa. 1952); Fry Roofing Co. v. Textile Workers Union of America etc., 149 F.Supp. 695 (E.D. Pa. 1957); 3 Moore's Federal Practice, p. 1407 et seq. In any event Rule 8(a), Fed. R. Civ. Proc., 28 U.S.C., requires that a plaintiff suing in a United States district court, must show affirmatively the existence of whatever is essential to jurisdiction, and if he does not do so, the court on discovering the defect must dismiss the case, unless it be cured by amendment. Smith v. McCullough, 270 U.S. 456 (1926). Gibbs v. Buck, 307 U.S. 66 (1939); Miller v. Brown Shipbuilding Co., 165 F.2d 956 (5 Cir. 1948). Indeed, in the complaints in the cases at bar there are not even averments of the respective citizenships of all the members of the International and of the Local. Compare Tunstall v. Brotherhood of Locomotive F. & E., 148 F.2d 403 (4 Cir. 1945), in which jurisdiction was based upon a federal question.*fn4
We are also of the opinion that the action by Dawson and his associates against Maloney and Wharton as individuals should have been dismissed because of a lack of diversity jurisdiction. Dawson and his associates in the suit at C.A. No. 14,517 seek relief which can be afforded them only by the International. An injunction against Maloney individually or against Wharton individually could not validly preclude the International from enforcing or maintaining its decision against Underwood or the Local. It is clear, therefore, that the International is an indispensable party for the granting of the relief sought by the plaintiffs. Kendig v. Dean, 97 U.S. 423 (1878); Gray v. Reuther, 99 F.Supp. 992 (E.D. Mich. 1951), aff'd 201 F.2d 54 (6 Cir. 1952). The International must be joined as a party even though that joinder would destroy diversity jurisdiction. Warfield v. Marks, 190 F.2d 178 (5 Cir. 1951), cert. den. 342 U.S. 887 (1951). Moreover, even if there were diversity - which, as we have demonstrated, there was not - Dawson and his associates failed to aver, as was required, the citizenships of the members of Local 542.For this reason, if for no other, the suit cannot be maintained. It follows therefore that the court below was without power to adjudicate the cause at C.A. No. 14,547 and that that suit must be dismissed by the court below.
As we have stated, the suit at C.A. No. 14,398 in the court below was also brought by Underwood against Maloney as an individual.The plaintiff in this suit seeks two kinds of relief. The first type of relief sought is injunctive which would restore Underwood to the office of President and Business Agent of the Local, and would prevent Maloney and the International from interfering with him in the performance of these duties. Underwood also seeks damages.
As to the requested injunctive relief, all that we have said in the preceding paragraph respecting the suit at C.A. No. 14,547 is equally applicable to this phase of the relief sought at C.A. No. 14,398.As to this phase of the suit and the relief sought by Underwood the International and Maloney as its "Representative" are indispensable parties.
But Underwood in the suit at C.A. No. 14,398 seeks damages also from Maloney as an individual. It is settled law that officers or individual members of an unincorporated association are liable for acts which they individually commit or to which they contributed, Wortex Mills Inc. v. Textile Workers Union of America, 380 Pa. 3, 109 A.2d 815 (1954), and as to such actions the International is not an indispensable party.
But on the present record at C.A. No. 14,398 there is no diversity of citizenship for though Maloney as an individual is a citizen of Illinois and Underwood a citizen of Pennsylvania, the citizenship of Maloney in his capacity as a "Representative" of the International, must be deemed to be that of the International and the status of the International for the purpose of diversity jurisdiction is determined by the citizenships of all of its members. The plaintiff, Underwood, a citizen of Pennsylvania, therefore joined as defendants in a single suit, arising out of identical events complained of, Maloney individually, whose citizenship as a resident of Illinois was diverse, and Maloney, as a "Representative" of the International, whose citizenship as a "Representative" of the International was not diverse. It follows that the court below did not possess the power to retain jurisdiction of the suit at C.A. No. 14,398 in view of the parties presently on the record. However, to dismiss the present action and require the plaintiff to start over again in the District Court, as was stated by Mr. Justice Frankfurter in Mullaney v. Anderson, 342 U.S. 415, 417 (1952), "would entail needless waste and runs counter to effective judicial administration ..." Rule 21 Fed. R. Civ. Proc., 28 U.S.C., can properly come into play at this stage of the litigation. We therefore will treat the case as if the court below had on its own motion dismissed Maloney as a "Representative" of the International as a party defendant.*fn5
Treating the suit at C.A. No. 14,398 as a suit by Underwood against Maloney individually, it is clear that Underwood failed to prove his case at the trial. The evidence shows that Underwood was deprived of his office as President and General Agent of the Local by the action of the General Executive Board of the International*fn6 and there is no proof that the General Executive Board was under the domination of Maloney. The court below expressly so held and there is no evidence to the contrary.*fn7 It appears clearly, therefore, that Underwood must obtain damages, if any, from the members of the General Executive Board or from the International. Underwood has not named the members of the General Executive Board as parties to ...