Townsend v. Boston & MRR

• Citation: 35 F. Supp. 938
• Decision Date: 02 December 1940
• Docket Number: No. 635,636.,635
• Court: U.S. District Court — District of Massachusetts
• Parties: TOWNSEND et al. v. BOSTON & M. R. R. SAME v. PALMER et al.

35 F. Supp. 938

TOWNSEND et al. v. BOSTON & M. R. R.

SAME v. PALMER et al.

Nos. 635, 636.

District Court, D. Massachusetts.

December 2, 1940.

George E. Roewer (of Roewer & Reel), of Boston, Mass., for plaintiffs Townsend and another.

Gerard D. Reilly and Irving J. Levy, both of Washington, D. C., and Vernon C. Stoneman, of Wage & Hour Division, and Richard W. Hall, both of Boston, Mass., for defendant Boston & M. R. R.

Arthur W. Blackman, of Boston, Mass., for trustees of New York, N. H. & H. R. R.

SWEENEY, District Judge.

In these two cases, which are similar, the defendants have each filed combination motions (1) to dismiss, (2) to add parties, (3) to strike, and (4) for a bill of particulars. Each of the motions cover the same points, and both will be disposed of together.

Motion to Dismiss.

The motion to dismiss for want of the jurisdictional amount of $3,000 is improperly directed since the plaintiffs do not rely on Section 24, Subsection (1) of the Judicial Code, 28 U.S.C.A. § 41(1), for its jurisdictional basis, but, on the contrary, rely on Subsection (8) of the same section which reads as follows: "The district courts shall have original jurisdiction * * * of all suits and proceedings arising under any law regulating commerce."

The defendants' contention that there is no jurisdiction under Subsection (8) is supported by Robertson v. Argus Hosiery Mills, D.C., 32 F.Supp. 19, and cases there cited. Since I cannot follow the reasoning of that decision I think it is well to state my own views on the question. In so doing I do not intend to pass upon the question with that degree of finality which would bar another judge from reaching a contrary decision at the trial on the merits. The following is my own view.

The Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219, under which this action has been brought, is a law regulating commerce. See Andrews v. Montgomery Ward & Co., Inc., D.C., 30 F.Supp. 380; Fleming v. Montgomery Ward & Co., Inc., 7 Cir., 114 F.2d 384; Eastern Sugar Associates v. Claiborne, decided by the United States District Court for Puerto Rico September 26, 1939. The only question then is whether this action "arises under" the Fair Labor Standards Act. The words "arising under" have received many and varied interpretations, but a reading of the pertinent cases seems to point to the following as a true test: Whether the cause of action asserts a right of property or of action granted by a law which was passed to regulate commerce. Whenever a statute, enacted pursuant to the power of Congress to regulate interstate commerce, grants a right of property or of action, and suit is brought to enforce that right, such a suit arises under the law creating the right within the meaning of the statute defining jurisdiction of the federal courts. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716, which seems to have applied a test such as this to an action arising under the patent laws. Whether the right of an employee, who is engaged in interstate commerce or in the production of goods for interstate commerce, to receive the minimum wage provided in the Fair Labor Standards Act is a right "arising under" that act seems to me to be answerable only in one way. The history of the legislation shows an intent to confer such a right through the medium of regulation of interstate commerce. It was the Fair Labor Standards Act which produced this right. Analogously, see Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092, which dealt with the Agricultural Adjustment Act of 1938. See the cases collected in note 482 of 28 U.S.C.A. § 41(1).

Another ground for the motion to dismiss is that the plaintiffs are not engaged in interstate commerce. The complaint alleges that they are so engaged, and decision on this particular point should be reserved to the trial on the merits.

Another ground for dismissal is that the plaintiffs, Townsend and Yancey, were not authorized by all of the "red caps" to bring this action. As I understand the law it is not essential that an agent, bringing an action, should receive authority from every person for whose benefit he brings the action, it being sufficient if it is shown that he was authorized by one employee either to bring the action for that employee or for that employee and...