The opinion of the court was delivered by: WARD
Defendant International Typographical Union ("the Union") renews its earlier motion for an order, pursuant to Rule 12(b), Fed. R. Civ. P., dismissing the action as to it on the grounds that it has not been properly served in New York and that venue is improperly laid in this district. For the reasons hereinafter stated, the motion is granted.
Plaintiff instituted this action pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, alleging that his employer, Poughkeepsie Newspapers, Inc., the Union, and International Typographical Union Local 315 ("the Local") deprived him of his rights under a collective bargaining agreement and that the defendant labor organizations breached their duty of fair representation in processing his grievance. Defendant Union is an unincorporated association with its principal office in Colorado Springs, Colorado. Service of process was effected upon the Union's secretary-treasurer in Colorado.
Defendant Union earlier challenged both service and venue in this action. Its motion to dismiss was denied by an order dated January 22, 1975. At that time, the Court stated that it lacked sufficient information to enable it to come to a determination and denied the motion without prejudice to its renewal after the completion of discovery. Discovery on this issue having been completed and an expanded record having been compiled, the motion has now been renewed.
First, the Court will address the question of service. The Union does not question the mechanics of the service in Colorado. Its sole contention is that neither § 301(d) nor the Federal Rules of Civil Procedure authorize service outside the territorial limits of the State of New York and that no valid service was effected in New York. Plaintiff advances two arguments in support of the validity of service upon the Union. First, he argues the Local is a wholly controlled arm of the Union and, therefore, service upon the Local, as agent for the Union, was service upon the Union in New York. Second, he argues that the service in Colorado is valid under the Federal Rules by virtue of the New York State long-arm statute, N.Y. CPLR §§ 302, 313 (McKinney's 1972).
In its prior determination, this Court concluded that service outside the State of New York is authorized by Rule 4(e), Fed. R. Civ. P., and the New York "long-arm" statute. Rule 4(e) acts as a borrowing statute by providing that
Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons . . . upon a party not an inhabitant of or found within the state . . ., service may . . . be made under the circumstances and in the manner prescribed in the statute or rule.
It cannot be disputed that by this federal rule extra-territorial service is authorized in any action in this Court whenever a New York statute so provides. This rule applies to all civil actions without regard to the basis for federal jurisdiction. See United States v. Montreal Trust Co., 35 F.R.D. 216 (S.D.N.Y. 1964); Rule 1, Fed. R. Civ. P. There is nothing in § 301(d) which would preclude application of this provision for extraterritorial service of process. In Central Operating Co. v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1974), the court held that in a suit under § 301 state provisions for extraterritorial service, as part of their long-arm statutes, are applicable by virtue of Rule 4(e). Id. at 250.
Therefore, we turn to the New York "long-arm" statute. N.Y. CPLR § 302(a) (1) provides:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
(1) transacts any business within the state; . . .
N.Y. CPLR § 313 provides for service outside the state whenever a person is subject to the jurisdiction of the courts of the state by virtue of § 302.
The Union, relying on state law, argues strenuously that these provisions do not apply to an unincorporated labor association. In fact, state law expressly makes these provisions applicable. New York General Associations Law § 13 (McKinney's Supp. 1972) provides that service upon the designated labor union officials shall be made in the same manner as provided for service upon a natural person.
The question then becomes whether the Union is transacting business in New York within the meaning of the statute. If so, a further question remains as to whether the ...