# Denver & Rio Grande Western Railroad Company v. Brotherhood of Railroad Trainmen/Dissent Black

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United States Supreme Court
387 U.S. 556
Denver & Rio Grande Western Railroad Company v. Brotherhood of Railroad Trainmen
Argued: April 19, 1967. --- Decided: June 5, 1967
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice FORTAS, join, dissenting.
This suit for damages caused by an illegal strike was brought by the Denver and Rio Grande Western Railroad against the Brotherhood of Railroad Trainmen and certain of its individual members in the United States District Court for Colorado where the Brotherhood's local lodges went on strike. The Brotherhood, an unincorporated association with its headquarters and principal place of business in Cleveland, Ohio, filed a motion to dismiss on the ground of improper venue. The District Court denied this motion, and after a trial without a jury, gave the railroad a $37,988 judgment against the union. The Court of Appeals reversed. 10 Cir., 367 F.2d 137. It held that the applicable venue statute, 28 U.S.C. § 1391(b), gave venue only to the district court for the district where the union's principal place of business is located. I would affirm this holding.
In holding venue improper as to the union, the Court of Appeals rejected the holding of the Second Circuit in Rutland R. Corp. v. Brotherhood of Locomotive Eng'rs, 307 F.2d 21, cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978, that a union may be sued under § 1391(b) in any district where it is doing business. The Second Circuit in Rutland recognized that prior to the Judicial Code of 1948, under the predecessor of § 1391(b), most courts had held that an unincorporated association is suable only at its principal place of business and that the only express change made in pre-existing general venue law by the 1948 Code was the expansion of corporate venue from the place of incorporation to the place of doing business. § 1391(c). Nevertheless, the court reasoned that there are sound policies for treating unincorporated associations like corporations and that, though the language of § 1391(c) expressly applies to corporations and not to unincorporated associations, Congress implicitly intended for the expanded concepts of corporate residence under § 1391(c) to be applied in determining the residence of an unincorporated association under § 1391(b).
For myself I cannot draw any such inference from the 1948 amendments to the general venue statute. Sections 1391(b) and (c) were part of a general Code revision designed comprehensively to cover the rules of procedure, including venue, and there is no reference whatever in these sections or their legislative history, so far as I can determine, that would permit us to infer that Congress intended that unincorporated associations be treated as corporations for venue purposes, thus changing the judicially established rule that unincorporated associations are suable only at their principal place of business. Though this Court recognizes that 'Congress has maintained its silence * * * with respect to the residence of the unincorporated association', it approves the Rutland holding because 'sound policy considerations' indicate it 'most nearly approximates the intent of Congress.' In reaching this result, the Court adopts the Rutland reasoning that Congress in 1948 must have approved of assimilating for venue purposes the treatment of unincorporated associations to that of corporations, because such a process of assimilation had been advocated by Judge Learned Hand in Sperry Prods., Inc. v. Association of American Railroads, 2 Cir., 132 F.2d 408, 145 A.L.R. 694, cert. denied, 319 U.S. 744, 63 S.Ct. 1031, 87 L.Ed. 1700. The narrow issue dealt with in Sperry was where, under the special venue provisions for a patent infringement suit, is an unincorporated association deemed to be an 'inhabitant.' The Sperry court first held that, since an unincorporated association can be sued in its own name to enforce a federal right, United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, and since it can be served with process under Fed.Rule Civ.Proc. 17(b), it should, for venue purposes, be treated as a single individual, not an aggregate of individuals. The Sperry court then held that for purposes of the special patent venue provision an unincorporated association is an 'inhabitant' of the district where its principal place of business is located-precisely what the Court of Appeals held here as to § 1391(b). In reaching this result, Judge Hand advanced legislative policy reasons, similar to those advanced by the Court here today, for treating an unincorporated association like a corporation, then deemed to be an inhabitant only of its State of incorporation and of the district within that State where its principal place of business was located. It is Judge Hand's process of reasoning, not his holding, that the Court uses in assimilating the treatment of unincorporated associations under § 1391(b) to the treatment of corporations under § 1391(c).
I find many objections to doing what the Court does here. First, even assuming that in enacting § 1391 Congress was aware of the Sperry decision and thought it applicable to general, as distinguished from patent, venue rules (an assumption I think completely unfounded), it is doubtful that Congress, without saying so, intended to reject the holding of that case-that an unincorporated association is suable at its principal place of business-but at the sme time adopt its reasoning-dicta to the effect that an unincorporated association should be treated like a corporation. Second, the only indication I can find of what Congress intended in 1948 as to unincorporated associations comes from Professor Moore, who participated in drafting the Code and who in 1949 wrote:
'Sperry Products, Inc. v. Association of American Railroads took the position that an unincorporated association is an 'inhabitant,' i.e., resident, of the district where it has its principal place of business.
And this doctrine has been applied to a partnership * * *. The Code has changed none of these doctrines.'
Third, Congress in 1948 was clearly aware of the venue problems involved in suing an unincorporated association. Just the year before, in 1947, it had expressly considered these problems in relation to suits against labor unions to enforce collective bargaining agreements and in § 301(c) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 185(c), explicitly provided for venue in such suits '(1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.' That action is wholly consistent with the idea that Congress' total failure in 1948 to provide a similar venue rule applicable to other kinds of suits against a union was neither inadvertent nor meant to be cured by judicial implication. Whether there is 'little' or much 'merit' in holding that venue of a union subject to the Railway Labor Act, 44 Stat. 577, as amended, is different from the venue of a union under the express venue provisions of the National Labor Relations Act, 49 Stat. 449, as amended, is a question for Congress, not this Court. Finally, since 1948 the lower courts have been completely divided on the question of whether an unincorporated association can be sued at a place other than its principal place of business. In the light of all these things, I cannot impute to Congress an unarticulated intent to make an unincorporated association's venue precisely the same as that of a corporation.
Neither the language and history of the general venue statute nor any prior decision of this Court throws any light on the question presented here. In the final analysis it is simply an important question of public policy. Reasons can logically be advanced for expanding the venue of unincorporated associations to include districts where they engage in business, but just as strong reasons can be advanced for not doing so. Though venue, relating to the convenience of the litigants, is quite different from jurisdiction, relating to the power of a court to adjudicate, Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-168, 60 S.Ct. 153, 154-155, 84 L.Ed. 167, and though Congress may have more constitutional leeway to deal with venue than with jurisdiction, United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217, venue rules nevertheless pose policy considerations which are and should be weighed by Congress and not by this Court. As we said in Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39: 'The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction.' I think the Court oversteps its boundaries in doing that which Congress did not choose to do in expanding the venue provisions with reference to corporations. I would leave the law of venue as it is until Congress decides its own policy.
I would affirm the judgment of the Court of Appeals.

## Notes

* ↑ 28 U.S.C. § 1391(b):
* ↑ 36 Stat. 1101, § 51, 28 U.S.C. § 112 (1940 ed.), provided that 'no civil suit shall be brought in any district court against any person * * * in any other district than that whereof he is an inhabitant * * *.'
* ↑ 28 U.S.C. § 1391(c):
* ↑ 36 Stat. 1100, § 48, 28 U.S.C. § 109 (1940 ed.), provided that suits for patent infringement must be brought 'in the district of which the defendant is an inhabitant, or in any district in which the defendant * * * shall have committed acts of infringement and have a regular and established place of business.'
* ↑ None of the parties here have suggested that an unincorporated association's residence for venue purposes depends on the residence of each individual member, and I agree with the Court's holding that an unincorporated association like a union is a single entity with a residence. The only problem here is to locate that residence.
* ↑ After Sperry the lower courts divided on whether its holding should be extended to the pre-1948 general venue provision (see n. 3, supra). Compare Brotherhood of Locomotive Firemen & Enginemen v. Graham, 84 U.S.App.D.C. 67, 175 F.2d 802, rev'd on other grounds, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22, and Griffin v. Illinois Cent. R. Co., D.C., 88 F.Supp. 552, 555, with Thermoid Co. v. United Rubber Workers, D.C., 70 F.Supp. 228, 233-234.
* ↑ Moore, Commentary on the U.S. Judicial Code 193 (1949). Now, however, for legislative policy reasons such as the protection from abuse contained in the transfer provision of 28 U.S.C. § 1404(a) and the multi-state nature of unincorporated associations' activities, Professor Moore believes the position taken in Rutland 'desirable.' 1 Moore, Federal Practice 0.142(5. 4), at 1508. See also Comment, 44 Calif.L.Rev. 130 (1956); Note, 39 St. John's L.Rev. 353, 358-360 (1965); Note, 13 Okla.L.Rev. 206 (1960); 45 Geo.L.Rev. 132 (1956). But see Kaplan, Suits Against Unincorporated Associations Under the Federal Rules of Civil Procedure, 53 Mich.L.Rev. 945, 949-950 (1955); Comment, 8 Stan.L.Rev. 708 (1956).
* ↑ H.R.Rep. No. 245, 80th Cong., 1st Sess., 108-109 (1947); S.Rep. No. 105, 80th Cong., 1st Sess., 15-18 (1947).
* ↑ Cases holding an unincorporated association may be sued only at its principal place of business: Brotherhood of Locomotive Firemen & Enginemen v. Graham, supra, 84 U.S.App.D.C., at 69, n. 2, 175 F.2d, at 804; McNutt v. United Gas, Coke & Chem. Workers, D.C., 108 F.Supp. 871, 875; Salvant v. Louisville & N.R. Co., D.C., 83 F.Supp. 391, 396; Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers, D.C., 92 F.Supp. 841, 842, aff'd without discussion, 3 Cir., 194 F.2d 770; Cherico v. Brotherhood of R.R. Trainmen, D.C., 167 F.Supp. 35 , 637-638; cf. Hadden v. Small, D.C., 145 F.Supp. 387 (partnership). Cases holding that an unincorporated association may be sued where it does business: Portsmouth Baseball Corp. v. Frick, D.C., 132 F.Supp. 922; Eastern Motor Express, Inc. v. Espenshade, D.C., 138 F.Supp. 426, 432; American Airlines, Inc. v. Air Line Pilots Assn., D.C., 169 F.Supp. 777, 781-783; R & E Dental Supply Co. v. Ritter Co., D.C., 185 F.Supp. 812; cf. Joscar Co. v. Consolidated Sun Ray, Inc., D.C., 212 F.Supp. 634.
* ↑ Since I agree with the Court that the 1966 amendment of § 1391(b) should apply to pending cases such as this one, I would not have filed this dissent had the Court remanded this case solely for a determination of the propriety of venue under the 1966 amendment.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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