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July 27, 1982

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Frank E. Fitzsimmons, General President, Edward Nangle, Vice President, Highway Truck Drivers and Helpers Local 107, Louis J. Bottone, President, Local 107, and John E. Smalley, Defendants; William BENDER, Plaintiff, v. HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107, Defendant

The opinion of the court was delivered by: BECKER


I. Preliminary Statement

 In an opinion earlier in this protracted litigation, the Court of Appeals vacated, for lack of pendent jurisdiction, a money judgment on a back salary claim that we had entered in favor of plaintiff William Bender against Teamsters Local 107. The Court of Appeals also remanded the case to us under 28 U.S.C. § 1653 *fn1" to consider whether Bender could retain his judgment by amending his pleadings to allege diversity jurisdiction. This opinion, which follows several post-remand hearings, addresses the question whether diversity jurisdiction exists in that case (C.A. 75-2684) and in a related case (C.A. 80-0534).

 Bender had for many years served as secretary-treasurer and business agent for Local 1 (ACA), a small local representing workers in the radio broadcast and insurance industries. Because of its miniscule size, Local 1 was merged into Local 107, a large truck drivers local, by order of the International Brotherhood of Teamsters (IBT). This suit was brought in 1975 by Local 1, Bender, and a number of other officers of Local 1 against IBT and Local 107 under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to enjoin IBT's order of merger. Invoking our pendent jurisdiction, Bender also pleaded a claim against IBT and Local 107 for salary allegedly owed to him for services rendered on behalf of Local 1 members both before and after the merger order. The IBT filed a counterclaim seeking enforcement of the merger order. After an extensive hearing, we denied plaintiffs' motion for a preliminary injunction against the merger order. Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 419 F. Supp. 263 (E.D.Pa.1976). No appeal was taken. Following trial on the merits, we entered judgment for IBT on its counterclaim, thereby upholding the merger. *fn2" We also awarded to Bender that portion of his salary claim accruing prior to the merger. Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 461 F. Supp. 961 (E.D.Pa.1978).

 The Court of Appeals affirmed that portion of our judgment that upheld the merger order. Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 614 F.2d 846 (3d Cir. 1980). However, notwithstanding its admittedly intimate relationship to the section 301 claim, in terms of actual trial evidence, the Court disapproved our exercise of pendent jurisdiction over Bender's salary claim because the complaint did not demonstrate a common nucleus of operative facts on its face. Id. at 851. The Court accordingly vacated the judgment in favor of Bender and ordered dismissal of the salary claim for lack of jurisdiction. Bender subsequently moved to amend his pleadings under 28 U.S.C. § 1653 to allege diversity jurisdiction. The Court of Appeals granted the motion, remanded the case to us to determine whether diversity existed, and retained jurisdiction over the action pending our determination. Id. at 853.

  Bender is a citizen of New York. The IBT has members in New York (as well as many other states) and, under United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S. Ct. 272, 15 L. Ed. 2d 217 (1965), which assigns to an unincorporated association the citizenship of each of its members, is concededly a citizen of New York. Recognizing that diversity jurisdiction is destroyed if the IBT remains a party, Bender filed an amended complaint after remand which dropped the claim challenging the merger and dropped all other parties plaintiff and defendant, leaving Bender as the sole plaintiff and Local 107 as the sole defendant in the case. The theory of the amended complaint is that diversity is present because none of the members of Local 107, which is Philadelphia-based, is a citizen of New York.

 Local 107 has moved to dismiss the amended complaint and IBT, although not a named defendant, has filed a "Statement of Position" opposing the amendment. Following remand, Bender re-filed his salary claim against Local 107 in a separate suit (C.A. 80-0534). Local 107 also has moved to dismiss the 1980 action for lack of diversity jurisdiction. We consider the motions to dismiss both actions in this opinion because of the identity of parties and at least one of the issues.

 The parties have conducted extensive discovery related to the citizenship of Local 107's members and to its union membership requirements, and have submitted the fruits of that discovery for our consideration in connection with the pending motions. They have briefed the jurisdictional issues and have argued their positions at a hearing. We also have conducted a number of other proceedings following remand, including a hearing on IBT's motion to hold Bender in contempt for allegedly thwarting implementation of this court's order upholding the merger.

 II. The Contentions of the Parties

 Local 107 argues that the remand under 28 U.S.C. § 1653 allows Bender to do no more than amend the pleadings to allege the citizenship of both unions named in the 1975 suit. It protests the "unilateral and drastic transformation of this lawsuit" produced by dropping the merger claim and the other parties, after judgment was entered thereon and affirmed by the Court of Appeals. According to Local 107, the Court of Appeals opinion itself demonstrates the narrow scope of permissible amendment under Section 1653. First, it notes that the Court granted Bender's motion to cure defective jurisdictional allegations to avoid dismissal "on purely technical grounds." 614 F.2d at 853. Local 107 reasons that the complaint exceeds the limits of a technical amendment. Second, it theorizes that in light of the statement that remand was necessary because it had no way "of determining whether all the members of the unions are non-New York citizens" (emphasis supplied), the Court expected both union defendants to remain in the suit. Finally, Local 107 contends that the narrow compass of the intended amendment is evidenced by the Court's citation to Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585, 587 (3d Cir. 1962), which remanded a case filed by a minor child and his guardian for amendment of the pleadings to supply the missing citizenship of the child. Both Local 107 and IBT (the latter in its "Statement of Position") further argue that IBT cannot be dropped as a party because it received a judgment on its counterclaim to enforce the merger, which was affirmed by the Court of Appeals. IBT adds that the judgment is still viable, pointing to its pending motion to hold Bender in contempt for failure to comply with the judgment.

 Bender's argument that the IBT can be eliminated as a defendant is grounded in significant part on Field v. Volkswagenwerk A. G., 626 F.2d 293 (3d Cir. 1980). In that case the survivor of an automobile accident sued for damages in her own right and also as administratrix of the estate of her husband who died in the accident. Pre-trial discovery disclosed that her citizenship and that of the defendant were non-diverse, and the defendant moved to dismiss all claims. In response to the motion, and to create diversity, she sought a voluntary dismissal of her individual claim. The trial court denied her motion and dismissed the case. The Court of Appeals reversed, holding that a party who is not indispensable may be dropped to perfect diversity. Bender reasons by analogy that IBT is not indispensable because: (1) the merger claim has been decided and thus is no longer part of the case; and (2) the IBT (and the other plaintiffs) are not necessary parties to the remaining salary claim. *fn3" In essence, Bender contends that he could have brought the salary claim in 1975 independent of the merger claim and solely against Local 107. He seeks to achieve this result nunc pro tunc through amendment of the complaint under Section 1653.

 Local 107 argues alternatively that diversity jurisdiction does not exist between Bender and Local 107, even if the other parties could be eliminated, for several reasons. First, Local 107 submits that Bender in effect "destroys his own diversity." According to this argument: (1) Bender became a member of Local 107 on the effective date of the merger in July 1975 (before C.A. 75-2684 was filed); (2) Bender's citizenship must be included in determining the citizenship of Local 107 under the Bouligny rule; and (3) a plaintiff (Bender) and a defendant (Local 107 via Bender) are citizens of New York; hence, diversity is lacking. Local 107 further contends that even if Bender's citizenship is not counted, diversity is destroyed by the New York citizenship of two of its retired members who retained, under the union's by-laws, sufficient membership rights to be counted for diversity purposes.

 Bender responds that he never exercised the right to become a member of Local 107 either before or after the suit was filed. He reasons that he could not be forced to become a member of the Local involuntarily, and recites the array of actions he instigated to challenge the merger as evidence of his persistent refusal to relinquish his Local 1 membership or to join Local 107. Bender also contests the effort to count the citizenship of retired members of Local 107, asserting that under the contract theory of union rights and duties, which looks to the terms of the union's by-laws see, e.g., NLRB v. Boeing, 412 U.S. 67, 93 S. Ct. 1952, 36 L. Ed. 2d 752 (1973), retirees do not enjoy the rights of active members as defined by the relevant by-laws. He thus objects to consideration of the citizenship of these individuals for the purposes of determining whether diversity exists.

 Before we can resolve the conflicting contentions to decide the jurisdictional matter, we must make, on the basis of the parties' submissions, certain critical findings of fact. The parties attempted unsuccessfully to negotiate stipulations of fact with respect to the jurisdictional issues. As agreed to by the parties, we have reviewed the ...

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