Adams v. Long, 1670.

• Decision Date: 31 December 1943
• Docket Number: No. 1670.,1670.
• Citation: 65 F. Supp. 310
• Parties: ADAMS v. LONG et al.
• Court: U.S. District Court — Western District of Missouri

65 F. Supp. 310

ADAMS v. LONG et al.

No. 1670.

District Court, W. D. Missouri, W. D.

December 31, 1943.

E. Robert Klein, of Kansas City, Mo., for plaintiff.

H. M. Langworthy, Carl D. Matz, Clyde J. Linde, and E. F. Halstead, all of Kansas City, Mo. (Langworthy, Matz & Linde, of Kansas City, Mo., of counsel), for defendants.

REEVES, District Judge.

The question for decision in this case is whether a federal question appears from the face of the complaint, and, even if so, whether this court should exercise jurisdiction. The suit is filed under the provision of Section 216, Title 29 U.S.C.A., being the Fair Labor Standards Act, and the total amount claimed is $1,161.10. It is a claim for overtime under Section 207 of said Title 29 U.S.C.A. The only averment in the complaint pertinent to the question under discussion is as follows: "* * * that at all times herein mentioned there were in full force and effect the following statutes and Executive Orders of the United States of America and the President thereof, to wit:—The Act known as the Fair Labor Standards Act of 1938 * * * hereinafter referred to as the Act and Executive Order number 9240 and (as amended by Executive Order number 9248 40 U.S.C.A. § 326 note), hereinafter referred to as `Executive Orders'; that under and by virtue of the terms of said Act and of said Executive Orders, the defendants were obligated to pay this plaintiff upon an hourly basis for each hour of work within any work week up to forty hours inclusive, at the rate of ninety-three and three quarters cents ($.9375) per hour; for each hour in excess of forty hours in any work week at hourly rate of one dollar forty and six tenths cents (1.406) and for Sunday work, where such Sunday work was the seventh day in his work week, at the rate of one dollar and eighty seven and one half cents per hour ($1.875)."

The petition for removal contains a recital that: "It appears upon the face of plaintiff's said petition that the plaintiff in this action seeks to recover from defendants additional compensation or wages amounting to $443.05, and a further sum of $443.05 as liquidated damages, and an attorney fee in the sum of $275.00, alleged by plaintiff to be due him under and pursuant to the terms and provisions of the Act known as the Fair Labor Standards Act of 1938 * * * and under and pursuant to the terms and provisions of Executive Order No. 9240, as amended by Executive Order No. 9248."

The petition for removal makes mention of other Acts of Congress not included or referred to in the complaint. The defendants then conclude that:

"* * * it is a suit or proceeding arising under a law of the United States regulating commerce, and because it is a suit or proceeding arising under the said Inflation Control Act of 1942, and under the Constitution and Statutes of the United States, and the aforesaid Executive Orders issued thereunder.

"* * * Said action is one of which the District Courts of the United States are given original jurisdiction."

1. Preliminary statements of the law as a postulate and background for a decision should be made: "To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another."

Moreover, "A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Gully v. First National Bank, 299 U.S. 109, loc.cit. 112, 113, 57 S.Ct. 96, 97, 81 L.Ed. 70.

In the foregoing lucid opinion, Mr. Justice Cardozo (loc.cit. 113 of 299 U.S., loc.cit. 98 of 57 S.Ct., 81 L.Ed. 70) suggested that theretofore the courts had not been as exacting as at the time the opinion was delivered; observe his language: "Looking backward we can see that the early cases were less exacting than the recent ones in respect of some of these conditions. If a federal right was pleaded, the question was not always asked whether it was likely to be disputed."

The court then explained the more exacting rule prescribed by the courts as follows: "Partly under the influence of statutes disclosing a new legislative policy, partly under the influence of more liberal decisions, the probable course of the trial, the real substance of the controversy, has taken on a new significance. `A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity,...