Fleming v. Mason & Dixon Lines, Inc.

• Decision Date: 25 November 1941
• Docket Number: No. 115.,115.
• Citation: 42 F. Supp. 230
• Parties: FLEMING, Administrator of Wage and Hour Division, U. S. Department of Labor, v. MASON & DIXON LINES, Inc.
• Court: U.S. District Court — Eastern District of Tennessee

42 F. Supp. 230

FLEMING, Administrator of Wage and Hour Division, U. S. Department of Labor, v. MASON & DIXON LINES, Inc.

No. 115.

District Court, E. D. Tennessee, N. E. D., at Greeneville.

November 25, 1941.

Charles H. Livengood, Jr., Regional Atty., Wage and Hour Division, U. S. Department of Labor, of Nashville, Tenn., for plaintiff.

Phillips & Hale, of Rogersville, Tenn., for defendant.

TAYLOR, Judge.

The questions presented by defendant's motion and relied upon primarily in argument, the defendant not waiving for the record any question presented by the motion, are (1) that plaintiff is not entitled to injunctive relief because the complaint makes no specific or any allegation as to contemplated or prospective violations, and (2) the right of defendant to more specific or detailed information as to the facts relied upon by plaintiff as basis for its allegations that the defendant has violated the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.

As to the first ground of the motion the complaint alleges that from October, 1938, to and through October, 1939, the defendant repeatedly paid some of its employees wages less than the statutory minimum then in effect, and that thereafter it did the same repeatedly, and by so doing has and is violating specified provisions of the Act. Substantially the same allegations are found with respect to violations of the overtime provisions of the Act. And it is alleged that by such repeated failures to pay the prescribed overtime wages, the defendant has and is violating the Act. These "have and is" charges, of course, bring all of the alleged violations up to the date of the filing of the first pleading, and the violations are alleged to have been "repeated" from the first date alleged, more than two years as to some of them.

Under the overwhelming weight of authority the motion is at least premature for the reason that the facts alleged may constitute a basis for injunctive relief, depending upon the evidence introduced at the hearing. Facts may be established thereby which would clearly give the court the power to grant injunctive relief against prospective violations, and the plaintiff a right to such relief, even if it might be made also to appear that there had been a cessation of the violations prior to the trial. The principle involved is discussed in Federal Trade Comm. v. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863, 82 L.Ed. 1326. To the same effect see Fleming v. Cincinnati Terminal Co., 6 Cir., 117 F.2d 1012; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, at page 514, et seq., 31...