run afoul of fundamental procedural principles. Stated simply, an amended complaint at this point in the litigation cannot unilaterally eliminate either a party or a claim. Such result requires dismissal by the court. Fed.R.Civ.P. 41. Although a party can be dismissed after judgment under limited circumstances, see supra note 6, we are aware of no authority, nor has Bender suggested any, to allow a claim to be dismissed after final judgment has been entered and the judgment has been affirmed at the appellate level. Common sense dictates that such dismissal is impermissible, especially where, as here, the defendants oppose the dismissal and one defendant (IBT) seeks enforcement of the judgment awarded on its counterclaim in the form of a contempt motion against Bender. Granting the relief requested by Bender could result in the emasculation of a viable judgment.
For the foregoing reasons we hold that Bender cannot unilaterally drop the merger claim at this juncture. As a means of fulfilling our obligations in connection with the remand, we will: (1) enter an Order dismissing the amended complaint in C.A. 75-2684; and (2) hereby formally note our conclusion that diversity is not present on Bender's salary claim. The foregoing discussion is sufficient to dispose of the 1975 action. It is necessary, however, that we also consider whether there is, in fact, diversity between Bender and Local 107. Unless we do so we cannot adjudicate the motion to dismiss C.A. 80-0534. Doing so has the added advantage of eliminating the need for another remand if the Court of Appeals disagrees with our conclusions of law in C.A. 75-2684.
We first consider Local 107's argument that Bender destroys his own diversity in the 1975 suit because he was a member of Local 107 whose citizenship must be counted in determining the citizenship of Local 107.
Contrary to this contention, our ruling that the merger was valid as of July 21, 1975, is not dispositive of whether Bender became a member of Local 107 prior to the time suit was filed. We adhere to the doctrine that the rights and obligations of a union member are contractual, NLRB v. Boeing Co., 412 U.S. 67, 75-76, 93 S. Ct. 1952, 1957, 36 L. Ed. 2d 752 (1973), NLRB v. Granite State Joint Board, 409 U.S. 213, 216, 93 S. Ct. 385, 34 L. Ed. 2d 422 (1972) and that membership arises when the requirements of the by-laws are satisfied and the union accepts the individual as a member. Hughes v. Local No. 11, 287 F.2d 810 (3d Cir.), cert. denied, 368 U.S. 829, 82 S. Ct. 51, 7 L. Ed. 2d 32 (1961).
We have preliminarily found as a fact that Bender had not become a member of Local 107 as of September 23, 1975 (or at any time since). We add the following support for this finding. Section 19 of the Local 107 by-laws accords membership when the person has (1) executed a written application for membership on a form provided by the local, (2) tendered the initiation fees and one month's dues, and (3) taken the oath of obligation at a regular meeting. As we have previously noted, Bender never forwarded the authorization card to Local 107 requested by Local 107's president and never tendered any dues. He thus had not satisfied the essential membership requirement of the Local 107 by-laws. Moreover, the president of Local 107 continued to characterize Bender and others as members of Local 1. The citizenship of Bender therefore will not be included in determining the membership of Local 107 as an unincorporated association. Defendant's argument that Bender's membership in Local 107 destroys diversity accordingly must fail.
The status of the retired members of Local 107 who are citizens of New York also must be determined for the purposes of ascertaining whether diversity jurisdiction exists for the 1975 and 1980 suits.
Local 107 contends in both its motions to dismiss that diversity is lacking because such persons are recognized as members of Local 107 and thus their citizenship must be considered in determining Local 107's citizenship. We again employ the contract theory of union membership to determine whether retired members share rights and obligations sufficiently comparable to those of active members to justify attributing their citizenship to the local union.
Despite Mr. Cimino's assertion that Local 107 "recognizes" these persons as members, we find the critical indicia of membership absent. As noted in our findings of fact, the IBT Constitution refers to retired persons who have been issued withdrawal cards as "ex-members," although it simultaneously permits the local to accord honorary status to such persons. The Local 107 by-laws authorize the issuance of honorary withdrawal cards but provide that the right to hold office and to vote on union business is revoked upon retirement, and the obligations to pay dues and attend meetings are eliminated. For all intents and purposes, the rights and obligations of retirees cease upon issuance of a withdrawal card. The label of "honorary" member carries with it only permission (as distinguished from the duty imposed on active members) to attend meetings (a benefit unlikely to be enjoyed where, as here, the person has moved out of state). Under these circumstances, the retired individual is not empowered to affect Local 107's activities and retains only a nominal (and extremely attenuated) relationship with the union. Notwithstanding the denomination of these persons as honorary members, we conclude that their inactive status permits us to disregard their citizenship.
We conclude then that in both 1975 and 1980 Bender and Local 107 were citizens of different states. With respect to C.A. 80-0534, Local 107's motion to dismiss for lack of jurisdiction will therefore be denied.
This conclusion as to citizenship is not significant, however, with respect to C.A. 75-2684, given our holding that Bender cannot manufacture diversity by dropping the merger claim at this stage of the litigation. We accordingly will enter an order dismissing the amended complaint. Pursuant to the terms of the mandate issued by the Court of Appeals in C.A. 75-2684, we note our finding that diversity is not complete between IBT and Bender, both of whom are citizens of New York, and among several other individual plaintiffs in this case and Local 107 and IBT, all of whom are citizens of Pennsylvania. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806).