Summary
In Durkin v. John Hancock Mutual Life Ins. Co., (D.C.S.D.N.Y. 1950) 11 F.R.D. 147, a motion to strike paragraphs alleging $500,000.00 as special damages was allowed.
Summary of this case from Great American Indemnity Company v. BrownOpinion
Action by James H. Durkin, individually and as president and representative of the members of the United Office & Professional Workers of America, against John Hancock Mutual Life Insurance Company, for a declaration of rights under contract between defendant and the union containing check-off provisions. On defendant's motion to dismiss the complaint, the United States District Court, Coxe, J., held that complaint stated a claim upon which relief could be granted to members of the union, but that plaintiff's individual name should be stricken from summons and complaint and that allegation that union itself, as distinguished from its members, had sustained damage in stated sum must also be stricken with permission to amend complaint by alleging such items of special damage.
Motion to dismiss complaint denied.
See also, D.C., 92 F.Supp. 893.
Neuburger, Shapiro, Rabinowitz & Boudin, New York City (Leonard B. Boudin, New York City, of counsel), for plaintiff.
Oeland & Kuhn, New York City, and Lawrence B. Gilman, Boston, Mass. (Lawrence B. Gilman, Boston, Mass., and George W. Riley, New York City, of counsel), for defendant.
COXE, District Judge.
Motion to dismiss complaint denied. There can be no question as to the jurisdiction of this court, either over the parties or over the subject matter of the action. Section 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 185; American Fed. of Labor v. Western Union Telegraph Co., 6 Cir., 179 F.2d 535; Rule 17(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The action is not a class action within the meaning of Rule 23. Nor can it be said that the complaint fails to state a claim upon which relief may be granted to the members of the Union. However, no attempt is made to state a claim upon which relief may be granted to plaintiff as an individual. He has, therefore, been improperly joined individually as a party plaintiff, especially if it be true, as defendant asserts, that he is not, and never has been, one of its employees. His individual name will be stricken from the summons and complaint. The allegation that the Union itself, as distinguished from its members, has sustained damage in the sum of $500,000, must also be stricken, for no items of such damages are set forth, as required by Rule 9(g). Plaintiff will, however, be permitted to amend his complaint by alleging such items of special damage.