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Local No. 1 Broadcast Employees of International Brotherhood of Teamsters v. International Brotherhood of Teamsters

February 26, 1980

LOCAL NO. 1 (ACA) BROADCAST EMPLOYEES OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND WILLIAM BENDER AND MORTON BORROW AND WALTER JOST AND ANTHONY EVASEW, APPELLANTS IN NO. 79-1065
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND FRANK E. FITZSIMMONS, GENERAL PRESIDENT AND EDWARD NAGLE, VICE PRESIDENT AND HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107 AND LOUIS J. BOTTONE, PRESIDENT LOCAL 107 AND JOHN E. SMALLEY, HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107, APPELLANT IN NO. 79-1066



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-2684)

Before ADAMS, ROSENN, and WEIS, Circuit Judges

Opinion SUR MOTION TO AMEND PLEADINGS UNDER 28 U.S.C. § 1653 AND PETITION FOR PANEL REHEARING

ROSENN, Circuit Judge .

Subsequent to this court's decision in Local 1 (ACA) v. International Brotherhood of Teamsters, Nos. 79-1065-66 (3d Cir. January 16, 1980), William Bender, one of the appellants in No. 79-1065 has moved this court pursuant to 28 U.S.C. § 1653 (1976)*fn1 to amend the pleadings to cure any defective allegation of diversity jurisdiction as to his claim for salary against Highway Truckdrivers and Helpers Local 107 and the International Brotherhood of Teamsters (IBT). He also petitioned for rehearing before the original panel asserting that there is diversity jurisdiction.

Although Bender's second amended complaint pled jurisdiction under 28 U.S.C. § 1332(a), his complaint alleged only that he was a citizen of New York, that IBT had its headquarters in Washington, D.C., and did business in Philadelphia and that Local 107 had its principal place of business in Philadelphia, Pennsylvania. Under the Supreme Court's decision in United Steelworkers of America v. Bouligny, 382 U.S. 145 (1965), however, an unincorporated association such as a labor union has no citizenship for diversity purposes apart from the citizenship of its members. See Carlsberg Resources Corp. v. Cambria Savings & Loan, 554 F.2d 1254, 1259 (3d Cir. 1977). Further, under the established principle of Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806), diversity must be complete between the plaintiff and all defendants. Bender's pleading is therefore defective because it does not plead diversity between Bender and each member of the unions.

We have the authority, however, under 28 U.S.C. § 1653, to permit an amendment to the pleadings to cure defects in jurisdictional allegations. In Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585, 587 (3d Cir. 1962), we permitted such an amendment to cure a defective allegation of diversity. Although the grant of a section 1653 motion is discretionary, we believe we should exercise that discretion in favor of the appellant because he has the benefit of a judgment in the district court and amendments should be liberally permitted in the interest of justice to avoid dismissal of suits on purely technical grounds. See Moore v. Coats Company, 270 F.2d 410, 412 (3d Cir. 1959). Thus, we will grant Bender's section 1653 motion to amend his complaint to allege diversity jurisdiction.

Bender has also petitioned the court for a panel rehearing on the merits of his salary claim, because, he asserts, diversity jurisdiction exists in this case. We are unable on the present record to ascertain whether complete diversity in fact exists. Bender's complaint mentions that Local 107 itself has approximately 8,000 members. We have no way of determining whether all the members of the unions are non-New York citizens so as to establish diversity jurisdiction. We must therefore remand to the district court for further proceedings and determination whether diversity of citizenship exists in this case for Bender's salary claim. See Berkowitz, supra 303 F.2d at 588. We will, nonetheless, retain jurisdiction over this action pending the district court's determination of jurisdiction.

Accordingly, the petition for rehearing will be denied and the case remanded to the district court for further proceedings ...


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