Brown v. Dunbar & Sullivan Dredging Co., 269

• Decision Date: 08 June 1951
• Docket Number: Docket 22008.,No. 269,269
• Citation: 189 F.2d 871
• Parties: BROWN et al. v. DUNBAR & SULLIVAN DREDGING CO.
• Court: U.S. Court of Appeals — Second Circuit

189 F.2d 871 (1951)

BROWN et al. v. DUNBAR & SULLIVAN DREDGING CO.

No. 269, Docket 22008.

United States Court of Appeals, Second Circuit.

Argued May 10, 1951.

Decided June 8, 1951.

Edward J. Desmond, of Buffalo, N. Y. (Desmond & Drury and John E. Drury, Jr., all of Buffalo, N. Y., on the brief), for plaintiffs.

Sparkman D. Foster, of Detroit, Mich. (Foster, Lutz & Meadows, Detroit, Mich, Hellings, Ulsh, Morey & Stewart, Buffalo, N.Y., Raymond A. Ballard, Detroit, Mich., and William P. Stewart, Buffalo, N. Y., on the brief), for defendant.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Defendant Dunbar & Sullivan Dredging Company appeals from a district court judgment holding it liable under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to pay William Brown and others overtime wages for work performed during the years 1939 through 1944. Defendant assigns error in the finding that it had not proved its defense of reliance in good faith upon agency rulings, made available to it by the Portal-to-Portal Act, 29 U.S. C.A. §§ 251-262, especially § 258; it also contends that the statute of limitations provisions contained in the latter Act, §§ 255-257, and Fed. Rules Civ.Proc. rule 15(a), 28 U.S.C.A., were violated because the action was permitted to proceed on an amended complaint which was neither timely filed nor in conformity with the Act's requirements. Brown and the other plaintiffs cross-appeal for an award of liquidated damages under § 11 of the Act, 29 U.S. C.A. § 260, which was refused by the trial court. We think the judgment must be affirmed.

The action was commenced by William Brown on January 26, 1946, "on behalf of and for the benefit of himself and all other employees and former employees of the defendant similarly situated." Defendant filed its answer on March 17, 1947. Then on May 14, 1947, the Portal-to-Portal Act became effective. 61 Stat. 84-90. This consisted in part of a statute of limitations on actions for back pay under the F.L.S.A. Sec. 6(b), 29 U.S.C.A. § 255(b), says that an action on a claim accruing prior to May 14, 1947, may be commenced within two years after the cause of action accrued or within the period prescribed by the applicable state statute of limitations, whichever is shorter. But this subsection is made explicitly inapplicable by the next one, (c), in cases where a cause of action which has accrued prior to May 14, 1947, "is commenced within one hundred and twenty days after May 14, 1947 unless at the time commenced it is barred by an applicable State statute of limitations."

Hence to find when an action is "commenced" we must refer to § 8, 29 U.S.C.A. § 257, which says that a "collective or representative action" pending on May 14, 1947 — such as the case at bar — is to "be considered to have been commenced" by an individual claimant "when, and only when, his written consent to become a party plaintiff to the action is filed in the court in which the action was brought." In this case there is concededly no state statute of limitations applicable. Therefore, reading the above provisions together, it follows that the action in this case was properly brought by all plaintiffs if the consents required by 29 U.S.C.A. § 257, supra, were filed in the court in which the original action was brought within 120 days after May 14, or by September 11, 1947. On September 10, 1947, plaintiffs' counsel filed an amended complaint naming as additional parties plaintiff the various workmen for whom the district court rendered judgment in addition to William Brown. The same day they also filed what the docket entries described as the "consents of employees to become party plaintiffs."

First we examine these latter documents. Each one is in the form of a general retainer, signed in 1945 or 1946, to the law firm of Desmond & Drury, authorizing the latter to prosecute by suit or otherwise the signer's claim for overtime wages and liquidated damages under the Act against one or more of four named companies, one of which was the defendant. After provision for payment of a fee of 25 per cent of whatever might be recovered, the agreement concluded: "My claim shall not be settled or compromised without the consent of the law firm of Desmond & Drury and the President of the International Surface Rock and Drill Boat Association. I agree that my claim may be joined in any suit brought by myself and various other employees of the corporation mentioned in paragraph one of this agreement."

We think this constitutes a "consent" within the meaning of the Act. It is authority and direction to institute or join in suit for recovery under the Act. Defendant objects that under the statute quoted above the consent must refer explicitly to the action in which it is to be filed. There is nothing in either the words or the circumstances to require so strict and purely formalistic a reading. An aim of the Portal-to-Portal Act was "to prevent the assertion of surprise claims by unnamed employees at a time when the statute of limitations would otherwise have run." Gibbons v. Equitable Life Assur. Soc. of United States, 2 Cir., 173 F.2d 337, 339. What was done here fully served the purpose of the Act as thus stated; it is not necessary to press its construction to a point where a legally adequate grant of power to proceed under the Act is held insufficient for some want of special detail not pertinent to the legislative purpose. It has indeed been ruled that the amendment adding parties is sufficient, without written consents in addition to it. Bartels v. Piel Bros., D.C.E.D.N.Y., 74 F.Supp. 41. We need not go that far here to find the statute fully complied with.

Much the same answer can be made to defendant's next contention, viz., that although the amendment adding the parties may have been filed in time, it was of no effect because its allowance was not then sought or had. This is based on a meticulous interpretation of F.R. 15(a), which provides for amendment after answer "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." What actually happened here was that on September 10, 1947, plaintiffs' counsel filed in court two documents — or aggregates thereof: one entitled an "Amended Complaint," wherein they set forth the names of all those similarly situated with the plaintiff for whose benefit he brought the action, and then repeated the allegations of the original complaint; and the other a document entitled "Consents to Become Party Plaintiffs," wherein they stated the names of all the employees as "those persons similarly situated with the plaintiff for and in whose behalf he brought the above entitled action" and also recited that there was attached the written consent of each one of those persons to become a party plaintiff in the action, there being attached the retainer agreements discussed above. Notice of return of service of the amended complaint was filed on September 11. On September 19, defendant moved to strike and dismiss the amended complaint as not filed in compliance with F.R. 15(a). This motion the court granted on October 13. Plaintiffs then moved for reargument and for leave to file and serve an amended complaint, with copy attached and with supporting affidavits asserting a failure previously to emphasize the controlling terms of the Act. On January 7, 1948, the court granted this motion, vacated its former order, and directed that the "amended complaint be, and hereby is, permitted to stand." In a memorandum the court said that the Act superseded the Rule and no application was necessary, adding that even if incorrect as to this, the amended complaint should be permitted to stand "in the interest of substantial justice." Thus at long last justice was done in terms of the statutory mandate, with the result not unusual after pressure for pleading niceties that we have a record with not less than three amended complaints and numerous motions and affidavits, in addition to the quite sufficient "Consents to Become Party Plaintiffs."

We might pass all this with the observation that there is surely no reversible error in the ultimate result. But for the sake of completeness we add that, first, no formal amendment was necessary to...