Eagle Glass Mfg Company v. Rowe/Dissent Brandeis
Mr. Justice BRANDEIS dissenting.

This suit was commenced July 9, 1913, in the District Court of the United States for the Northern District of West virginia. The plaintiff, the Eagle Glass & Manufacturing Company, is a West Virginia Corporation having its principal place of business in that state. The defendants, Rowe and four others, were then the chief executive officers of the American Flint Glass Workers' Union. The defendants were sued individually and as such officers. Jurisdiction was rested wholly on diversity of citizenship, defendants being alleged to be all citizens of Ohio.

Plaintiff's factory was run as a non-union shop under individual agreements with its employes by which each was required, as a condition of employment, to sign an agreement that he would withdraw from plaintiff's employment if he joined the union. The employment was terminable at the will of either party. The bill alleged that defendants were conspiring to unionize its factory, and prayed that they, their agents and associates, be enjoined from interfering with plaintiff's employes 'for the purpose of unionizing your orator's glass factory without your orator's consent.' District Judge Dayton granted a sweeping restraining order, which enjoined defendants, among other things, from picketing 'for the purpose of interviewing or talking to any person or persons on said railroad or street cars coming to or near plaintiff's glass factory to accept employment with the plaintiff, for the purpose of inducing * * * them * * * by persuasion * * * to refuse or fail to accept service with plaintiff' and from the use of 'persuasion or entreaty' to induce any person in its smploy to leave the same.

Only one of the five defendants named in the bill was served with process. He, Gillooly, filed an answer alleging that he was a citizen and resident of West Virginia; and a hearing was had upon the issue thus raised. The court, being satisfied that Gillooly was a citizen of West Virginia, ordered, on August 13, 1913, that the bill be dismissed as to him 'without prejudice'; and directed that the bill be retained as to all other defendants named therein. Plaintiff then moved for a temporary injunction. But the counsel who had formerly represented Gillooly called the attention of the court to the fact that there was then before the court no person against whom an injunction could issue, since he had entered his appearance only for Gillooly and did not intend to appear for the other defendants who had not been served. He accordingly moved, on his own behalf, that the record be corrected. This motion was heard October 27, 1913, was taken under advisement and was granted on January 14, 1914. But meanwhile, on November 27, 1913, the District Judge granted plaintiff leave to amend its bill by adding as defendants, eight other citizens of Ohio who, it alleged, were members of the American Flint Glass Workers' Union and 'have assisted and are now supporting' the five persons originally named as defendants.

The eight members of the union-so joined as defendants by the amended bill-being served with process within the state of West Virginia, filed on January 14, 1914, their sworn answers to the bill, alleging among other things:

'Fourth. These respondents admit that they are members of a      local union of glass workers at Steubenville, Ohio, which      local union is affiliated with the American Flint Glass      Workers' Union, and that, except their relation as members of      their local union, they have no connection or relation      whatever with the other defendants, that they are not      officers, agents, representatives or organizers of their      local union, or of the American Flint Glass Workers' Union,      and that even in their capacity as members of their local      union they have not by any act, word, or deed of theirs in any manner, authorized, assisted, aided or abetted      or encouraged any of the other defendants in doing any of the      things alleged against them (the other defendants) in the      bill of complaint or the amended bill of complaint.'

The allegation in the answer was supported by further affidavits of the parties, which were uncontradicted. The District Court, nevertheless, granted on January 17, 1914, a temporary injunction against all the then defendants (including these eight) substantially in the terms of the restraining order.

On January 30, 1917, the eight took an appeal to the Circuit Court of Appeals, assigning as errors, among others:

'3. The court had no jurisdiction to grant an injunction      because there was no service of process on any of the parties      named as defendants except on these defendants, and the      record shows that they are not really defendants, but are      named as defendants merely as a pretext resorted to by the      plaintiff in order to get jurisdiction.

'4. Because the temporary injunction is granted against these      defendants on the sole ground that they are members of the      union named in the bill.'

On January 13, 1915, the Circuit Court of Appeals unanimously reversed the decree of the District Court with directions to dissolve the injunction and dismiss the bill (219 Fed. 719, 135 C. C. A. 417; saying, among other things:

'Rowe and others, general officers of the union, were not      served, and, therefore, no relief could be given against them      unless it could be said they were brought before the court by      representation when Glasstetter and others, mere members of      the local union, were ordered to be made parties and      appeared. * * *

'When the allegation of a general or common interest to many      persons is denied, the duty devolves on the court to      determine whether the common or general interest exists      before decreeing against those who are alleged to be in court by representation. The plaintiff had no pretense of a      case against Glasstetter and the other defendants, brought in      by amendment for participating or aiding the defendants not      served, in the alleged torts committed by them, and,      therefore, there was no such common or general interest as      authorized the court's decree against the defendants served,      by virtue of the service and appearance of the defendants      brought in by amendment.'

Plaintiff took an appeal to this court, and also filed a petition for writ of certiorari. The decision upon the petition was postponed.

It is clear that the appeal must be dismissed, as the jurisdiction of the District Court rests wholly upon diversity of citizenship. Hitchman Coal & Coke Co. v. Mitchell, 241 U.S. 644, 36 Sup. Ct. 450, 60 L. Ed. 1218. The petition for certiorari having been granted, the decree should, in my opinion, be affirmed for the reasons stated by the Circuit Court of Appeals and in the dissent in Hitchman Coal & Coke Company v. John Mitchell et al., 245 U.S. 229, 38 Sup. Ct. 65, 62 L. Ed. --.

Mr. Justice HOLMES and Mr. Justice CLARKE concur in this dissent. 

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