Connell v. Dulien Steel Products, 16269.

Decision Date13 February 1957
Docket NumberNo. 16269.,16269.
Citation240 F.2d 414
PartiesElbert B. CONNELL, Appellant, v. DULIEN STEEL PRODUCTS, Inc., Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Leroy H. Scott, Jr., Shreveport, La., Mecom, Scott & Despot, Shreveport, La., for appellant.

Irwin Geiger, Washington, D. C., Steven N. Cowel, Shreveport, La., Michael

A. Schuchat, Washington, D. C., Geiger & Harmel, Washington, D. C., of counsel, for appellee.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from two orders of the district court overruling motions to dismiss on the ground of lack of jurisdiction over the subject matter and for failure to state a claim on which relief may be granted and granting a temporary restraining order in a suit to prevent appellant from enforcing a judgment he had obtained in the state courts of Louisiana. The principal issues here are whether the orders in question are appealable, whether the court had jurisdiction to order the restraint, and whether appellee's complaint stated a proper claim for equitable relief as a matter of state law.

During 1949-1951 appellant was employed by appellee as a watchman under a contract which called for a monthly pay of $225.00. Appellant's principal duty was to make each night four or five 45 minute rounds through appellee's premises. After his separation appellant sued for overtime pay under the provisions of the Fair Labor Standards Act, 29 U.S. C.A. § 201 et seq., on the theory that as a result of some complaints by Government inspectors soon after he started to work he had from then on been required to spend all the night hours on appellee's premises, and thus had worked considerably in excess of 40 hours per week; he admitted that the performance of his prescribed duties required only about 30 hours per week but claimed that he had to spend altogether over 84 hours per week on the premises.

After trial in a Louisana state district court an opinion was rendered on April 6, 1954, on the only issue that had thus far been contested, to the effect that appellant had been required to spend all his night hours on appellee's premises and was thus entitled to overtime pay; on the issue of the amount of recovery the court stated that the matter had not yet been sufficiently argued but would be passed on by the court if the parties could not agree. Appellee later moved for a hearing to determine the amount.

After some correspondence and before such a hearing took place the parties filed a stipulation that the amount should be $22,229.56 plus $1,000 counsel fees.1 This amount was arrived at by computing the hourly contract rate on the assumption that $225 per month was for a 30 hour work week, i. e. about $1.73 per hour, and multiplying one and one-half times this rate by the total number of hours worked in excess of 40 each week (average of 84 - 40 = 44 hours per week) and then doubling the amount to include the 100% penalty allowed by the Act.

On the above opinion and stipulation the trial court entered judgment for the stipulated amount with legal interest from the date of judicial demand and all costs of the suit.

On December 12, 1955, the Louisiana Supreme Court affirmed the district court, Connell v. Dulien Steel Products, 228 La. 1093, 85 So.2d 3, having considered only the issue whether appellant's constant presence on appellee's premises had actually been required, and relying on the stipulation for a determination of the amount of the recovery. Rehearing was denied on January 6, 1956.

At that point appellee apparently employed new counsel who discovered that a "mistake" (detailed below) had been made in the calculation of the stipulated amount and moved the state supreme court to recall its judgment and remand the case to the district court for a recomputation of the amount. Appellant opposed the motion, allegedly on jurisdictional grounds, and it was denied without opinion on February 21, 1956. The United States Supreme Court denied certiorari on May 7, 1956, 351 U.S. 926, 76 S.Ct. 783.

On May 8, 1956, appellee filed the present suit in the United States District Court for the Western District of Louisiana, asserting jurisdiction in diversity and praying for a temporary and permanent injunction against the enforcement of the judgment on the ground that it was based on a mutual mistake of fact. Simultaneously a motion for a "preliminary injunction" was filed. On the same day an informal hearing was held before the court at which both parties were represented, and counsel for appellant objected to the jurisdiction of the court. He promised, however, that no attempt would be made to enforce the state judgment without first giving at least 10 days notice to both the court and to appellee's counsel, and it was agreed that the court would consider the question of jurisdiction upon briefs to be submitted.

On May 22nd appellant filed two motions to dismiss, one on the grounds of lack of jurisdiction and of res judicata and the other for failure to set forth a claim upon which relief could be granted. On May 29 notice was given that appellant would no longer voluntarily desist from enforcing his state judgment. On June 1st appellant filed his answer, reserving his rights under the previous motions.

On June 8th counsel for both parties appeared before the court; in an oral opinion the court overruled the motions to dismiss for lack of jurisdiction and for failure to state a claim, while the plea of res judicata was referred to a hearing on the merits. The several defenses raised in the answer were also briefly discussed. The court then set July 9th as the date for a hearing on a preliminary injunction, and stated that he would be inclined to issue a temporary restraining order upon appellee's furnishing a bond in the sum of $5,000. The court stated that since this order was issued upon notice he did not believe that the 10 day limitation expressed in Rule 65 (b), Fed.Rules Civ.Proc. 28 U.S.C.A., was applicable. Counsel for appellant objected to the granting of a temporary restraining order, principally on the ground that as a matter of state law no finding of a threat of irreparable injury could be sustained.

On June 11th appellee furnished the required bond and filed a motion for a "temporary restraining order" which was granted on the basis of Conclusions of Fact and Conclusions of Law approved by the court, the restraint to last: "until the final decision of the Court on Plaintiff's Motion for Preliminary Injunction." This order was served on appellee the next day.

On June 15th appellant moved "To Dissolve Temporary Restraining Order and Preliminary Injunction" on several grounds, including failure to show a threat of irreparable injury, inadequate hearing and notice within the meaning of Rule 65(b), and because the order did not by its terms expire within a maximum of ten days. The record does not show the disposition of that motion.

On June 23rd appellant filed his notice of appeal from the order of June 8th overruling the motions to dismiss and from the order of June 11th restraining appellant from enforcing his state judgment.

The "mistake" on which the present action is based and which appellee's present counsel discovered so late in the proceedings is that the hourly wage rate on which the calculation of the overtime pay was based should not have been arrived at by dividing the weekly wage (derived from the monthly $225) by 30 hours (the amount of time appellee had claimed appellant was required to work) but by the 84 hours that the court found that appellant had actually had to spend on the premises. Since this would have reduced the basic hourly wage from an assumed $1.73 to 61 cents, which is lower than the then legal minimum rate, appellee recomputed the required compensation based on a regular rate of 75 cents per hour (the then legal minimum) and arrived at $4,812.20, including the 100% penalty. Appellee also asserts that the Fair Labor...

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  • United States v. New York, New Haven & Hartford R. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 1959
    ...merely a temporary restraining order which is not appealable or a temporary injunction which is. See, e. g., Connell v. Dulien Steel Products, Inc., 5 Cir., 240 F.2d 414, noted in 71 Harv.L.Rev. 550; Madison Shipping Corp. v. National Maritime Union, 3 Cir., 273 F.2d 4 Also cited is Telechr......
  • Squillacote v. Local 248, Meat and Allied Food Workers
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 13, 1976
    ...1025 (8th Cir. 1972); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2962 at 619-22 (1973). Cf. Connell v. Dulien Steel Products Inc., 240 F.2d 414 (5th Cir. 1957); 7 Moore's Federal Practice P 65.07 (2d ed. The cases cited by the Union do not convince us that the general rule......
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    • United States
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    • July 28, 1960
    ...a preliminary injunction subject to appeal under what is now 28 U.S.C. § 1292(a)(1). On the other hand, Connell v. Dulien Steel Products, Inc., 5 Cir., 1957, 240 F.2d 414, 415, certiorari denied, 1958, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074, held that an order labelled a "temporary res......
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