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April 6, 1962

ASSOCIATED ORCHESTRA LEADERS OF GREATER PHILADELPHIA, Marty Lahr, Joel Charles, jay Jerome, Jack Lewis and Abe Neff
The PHILADELPHIA MUSICAL SOCIETY, LOCAL 77, OF the AMERICAN FEDERATION OF MUSICIANS, the American Federation of Musicians, Charles Musumeci as President of Local 77, A. A. Tomei as Secretary of Local 77, Don Diogenia as Treasurer of Local 77, and Herman Kenin as President of the American Federation of Musicians

The opinion of the court was delivered by: LORD, III

The complaint in this case approaches the incredible. It contains four counts and 98 paragraphs. Many of the paragraphs in one count are incorporated by reference in one or more of the other counts, so that analysis of the complaint demands painstaking re-shuffling of its 36 pages. It is indeed a veritable compendium of prolixity. Plaintiffs' brief is no better. It is full of meaningless strings of citations and is obviously copied in large part from some other brief, without even an attempt to adapt its form to the case before us. We decry this sort of advocacy, and pass now to the merits.

Plaintiffs are five individual orchestra leaders and an unincorporated association, to which all of the individual plaintiffs belong, Associated Orchestra Leaders of Greater Philadelphia (Associated). *fn1" Defendants are the American Federation of Musicians (AFM), its Local 77, and several individuals as officers of the Local and of AFM. All of the individual plaintiffs are also members of Local 77, and for their engagements employ only union 'sidemen' under terms established by the Union.

 The action is purportedly brought as a class action under F.R.C.iv.P. 23(a), 28 U.S.C., and contains four separate counts. The first seeks to enjoin certain payments, a 1% 'tax' and a 10% 'traveling surcharge' which plaintiffs are obliged to make to defendants, and which are alleged to be in violation of 302 of the Labor Management Relations Act (LMRA), as amended, 29 U.S.C.A. 186. The second cause of action complains of the fixing of minimum prices and wages for all musicians by defendants, and requests an injunction against such action and against any reprisals which may be directed against plaintiffs for challenging defendants' actions. Jurisdiction allegedly arises under the Sherman Act, 15 U.S.C.A. § 1 et seq. and Clayton Act, 15 U.S.C.A. § 12 et seq. under Titles I and VI of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq. and under §§ 302(e) and 303(a) and (b) of the LMRA, 29 U.S.C.A. §§ 186(e), 187(a, b). The third cause of action complains of union-imposed discipline on plaintiffs in violation of Title I of the Labor-Management Reporting and Disclosure Act. Injunctive relief is sought. The Fourth cause of action alleges jurisdiction under the Sherman and Clayton Acts and recites monopolization on the part of defendants in combination with certain orchestra leader-employers. Plaintiffs ask for an injunction and damages.

 Defendants have moved to dismiss. They assert initially that this is not a proper class action *fn2" because the complaint shows on its face that plaintiffs do not adequately represent the class, as is required by F.R.C.iv.P. 23(a). The interests of the plaintiffs are said to be directly hostile to those of other members of the class.

 The complaint is framed as a spurious class action under F.R.Civ.P. 23(a)(3). It alleges that there are common questions of law and fact and common relief is sought. Although some doubt has been expressed elsewhere, *fn3" the rule in this Circuit is that adequacy of representation must be shown in a spurious as well as in other types of class actions: Pennsylvania Co. for Insurances, etc. v. Deckert, 123 F.2d 979 (C.A. 3, 1941); Zahn v. Transamerica Corporation, 162 F.2d 36, 172 A.L.R. 495 (C.A. 3, 1947); Rio Haven, Inc. v. National Screen Service Corp., 11 F.R.D. 509 (E.D.Pa.1951).

 In this case, the inadequacy of representation is apparent. The class appears to consist of orchestra leaders who are members of defendant Local 77. Portions of the complaint allege a conspiracy between defendants and other orchestra leaders, and although it is not spelled out, these other orchestra leaders are apparently also members of Local 77. (Defendants presumed that these were the facts in their brief and in argument, and plaintiffs did not attempt to rebut this, or even mention it).

 In a similar factual situation, the members of the class being sharply divided on the question involved in the litigation, the Third Circuit held that 'it would be absurd to say that the leaders of one faction in the internecine struggle could adequately represent the whole membership.' Giordano v. Radio Corporation of America, 183 F.2d 558, 560 (C.A. 3, 1950). Although the Court was there considering a true class action, the holding is equally applicable here.

 The presence of the association as a plaintiff does not cure the defect. Associated is alleged to be composed of orchestra leaders who are members of defendant unions. But an unincorporated association has no standing to assert the rights of its members. Farmers Co-op. Oil Co. v. Socony-Vacuum Oil Co., 133 F.2d 101 (C.A. 8, 1942). Here the class is not even limited to members of the association, but comprises all orchestra leaders who are members of Local 77. The association being but one faction of the class, adequate representation of the class by the association is clearly lacking.

 The complaint must be dismissed as a class action, but this, we think, is not the end of the matter. In Giordano, supra, the plaintiff purported to bring the action on behalf of himself and fifteen other members of the union who allegedly were about to be wrongfully expelled, none of whom had intervened. After holding that the suit could not be maintained as a class action, the Court said (183 F.2d at p. 561):

 '* * * It must be concluded, therefore, that the suit, if it may be entertained at all, must be regarded as brought by the plaintiff for his own benefit solely.

 'This brings us to the decisive question, whether the jurisdictional amount of $ 3,000 is involved. * * *'

 We deem it incumbent upon us, then, to determine whether this action can be retained if it is regarded as the assertion of individual claims joined in one action. In Zachman et al. v. Erwin et al., 186 F.Supp. 681 (S.D.Tex., 1959) the Court said, at page 689:

 '* * * The ability of other persons similarly situated to intervene without regard to jurisdictional limitations applicable to the original parties is the raison d'etre of the spurious class suit, since Rule 20(a) furnishes authority for joinder of parties where a common question of law or fact is involved, subject to jurisdictional restrictions as to diversity of citizenship and amount in controversy. By virtue of 15 U.S.C.A. 77(v), however, the Securities Act confers jurisdiction of this action upon the court irrespective of the amount in controversy or the citizenship of the parties. * * *'

 So here, jurisdiction in this case depends upon the invocation of federal laws. But at this point, we do not know whether federal laws have been violated as to each individual plaintiff and, if so, which laws and the nature of the asserted violation. This can only be determined by the examination of factual, rather than conclusionary, averments of the complaint. Such averments are, of course, lacking in this complaint brought, as it was, mistakenly as a class action. Leave will be given to amend to allege individual claims on behalf of the named plaintiffs and others who desire to join and who are named in the amended complaint. We note here that one of defendants' grounds fof dismissal is that the complaint is not a 'simple, concise, and direct' statement of the facts: F.R.Civ.P. 8(e)(1). We thoroughly agree with ...

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