Bartels v. Sperti, Inc.

• Decision Date: 02 September 1947
• Citation: 73 F. Supp. 751
• Parties: BARTELS et al. v. SPERTI, Inc., et al., and ten other cases.
• Court: U.S. District Court — Southern District of New York

73 F. Supp. 751

BARTELS et al. v. SPERTI, Inc., et al., and ten other cases.

District Court, S. D. New York.

September 2, 1947.

Witt & Cammer, of New York City (Milton Paulson, of New York City, of counsel), for plaintiffs.

Tucker & Shea, of New York City (William A. Shea, of New York City, of counsel), for defendants Sperti, Inc., and Sperti Foods, Inc.

Root, Ballantine, Harlan, Bushby & Palmer and Palmer & Searles, all of New York City (Wilkie Bushby and William J. Butler, both of New York City, of counsel), for defendants Washburn Wire Co. and Washburn Wire Co., Inc.

Phillips, Mahoney & Spohr, of New York City (William E. Goldman, of New York City, of counsel), for defendant Jacob Ruppert, Inc.

Breed, Abbott & Morgan, of New York City (Charles H. Tuttle and Daniel F. O'Connell, both of New York City, of counsel), for defendants Fox Head Waukesha Corporation, and Anheuser-Busch, Inc.

Lord, Day & Lord, of New York City (Daniel F. O'Connell, of New York City, of counsel), for defendant Kips Bay Brewing Co.

Joseph P. Tolins, of New York City (Daniel F. O'Connell, of New York City, of counsel), for defendants Pilser Brewing Co., Inc., and Metropolis Brewery, Inc.

Grant, Clark & Fox, of New York City (Daniel F. O'Connell, of New York City, of counsel), for defendants The John Eichler Brewing Co., Inc., and John Eichler Distributing Corporation.

White & Case, of New York City (Philip H. Weeks, of New York City, of counsel), for defendants P. Ballantine & Sons, Inc., and Hoffman Beverage Co.

MEDINA, District Judge.

Union officials having brought these several actions as agents or representatives of certain employees of defendants, pursuant to the authority found in the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216 (b), now make identical motions for an order that the employees whose names are set forth in the schedules annexed to the complaints, including all employees whose names have been added to such schedules by prior order of this Court, shall "for all purposes" be "deemed" to be specifically named as party plaintiffs herein and that the complaint be "deemed" amended accordingly, without the necessity of serving or filing an amended complaint. They also move that certain formal allegations connecting these employees with the claim for relief be "deemed" made; and that the order shall provide "that the relief granted herein shall be without prejudice to the right of the plaintiffs to contend that the Portal-to-Portal Act of 1947, 29 U.S.C.A. & 251 et seq., is unconstitutional and invalid in whole or in part."

The motions are made for the purpose of taking advantage of Section 8 of the Portal-to-Portal Act of 1947 which became law on May 14, 1947. The provisions of Section 8 follow:

"Sec. 8. Pending collective and representative actions. The statute of limitations prescribed in section 6 (b) shall also be applicable (in the case of a collective or representative action commenced prior to the date of the enactment of this Act under the Fair Labor Standards Act of 1938, as amended) to an individual claimant who has not been specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after the date of the enactment of this Act. In the application of such statute of limitations such action shall be considered to have been commenced as to him 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 order that an individual claimant may take advantage of the applicable state statute of limitations rather than be barred by the short statute of limitations set forth in the Portal-to-Portal Act of 1947, it seems essential that an individual claimant be "specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after the date of the enactment of this Act."

As these respective identical motions were all argued seriatim and were opposed on various grounds, it will be convenient to dispose of them together.

In limine defendants oppose the motions upon the ground that the Court is without jurisdiction to grant them. Reliance is made upon subdivision (d) of Section 2 of the Portal-to-Portal Act of 1947 which provides:

"No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after the date of the enactment of this Act, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section."

It is argued that the findings contained in the preamble in Section 1, together with the general scheme of the statute as a whole, manifest an intention to eliminate wholly from the cognizance of the courts actions to enforce liability on account of the failure of an employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq., except where such liability is founded upon activities which were compensable under contract, custom or practice as defined in subsections (a) and (b). In support of this argument it is pointed out that the complaints are couched in the general terms typical of actions brought pursuant to Section 216 of the Fair Labor Standards Act prior to the Portal-to-Portal Act of 1947 and that they contain no allegations even remotely suggesting that the claims or any part thereof are based upon activities which were compensable under contract, custom or practice.

The language of Section 2 (d) seems clear and unambiguous. By its terms it excludes jurisdiction of any action or proceeding "whether instituted prior to or on or after the date of the enactment of this Act." These actions would seem to be plainly of the type over which Congress has denied jurisdiction to the courts, as they are actions to enforce liability for overtime compensation under the Fair Labor Standards Act of 1938, as amended, and there is no indication on the face of the complaints that the actions are to enforce liability for claims based upon activities which were compensable in any amount under contract, custom or practice.

As the United States District Courts are courts of limited jurisdiction, it is elementary that the record must show facts from which the Court may infer that jurisdiction exists. There is no presumption of jurisdiction such as exists with respect to courts of general powers. Applying this test, if the Court is without jurisdiction it has no power whatever to act, whether by ruling on the merits or in passing upon applications for incidental and interlocutory relief.

Nor does the lack of jurisdiction seem any the less manifest because jurisdiction existed at the time of the commencement of the various actions. The courts have repeatedly held that jurisdiction once conferred by the Congress upon the District Courts may be taken away in whole or in part, even as to pending cases. In numerous instances complaints of the type found herein have already been dismissed for lack of jurisdiction since the Portal-to-Portal Act of 1947 became law on May 14, 1947. Cochran et al. v. St. Paul & Tacoma Lumber Co. et al., D.C.W.D.Wash.1947, 73 F. Supp. 288; Boehle v. Electro Metallurgical Co., D.C.D.Or.1947, 72 F.Supp. 21; Story et al. v. Todd Houston Shipbuilding Corp., D. C.S.D.Tex.1947, 72 F.Supp. 690; Fajack v. Cleveland Graphite Co., D.C.N.D.Ohio 1947, 73 F.Supp. 308; Lasater v. Hercules Powder Co., D.C.E.D.Tenn.1947, 73 F.Supp. 264; Whitehouse et al. v. American Rolling Mill Company, D.C.S.D.Ohio, 1947.² These courts have necessarily and in most instances specifically held that the Portal-to-Portal Act of 1947 is constitutional and valid. No decision by any court, so far as this court is aware, has held the Portal-to-Portal Act of 1947 unconstitutional and invalid in whole or in part.

In any event, despite doubt as to the jurisdiction of the court, and an inclination to make effective in the fullest measure the intention of the Congress, the rulings heretofore made by other judges of this District will be followed.³ As stated by Caffey, D. J., in United States v. Aluminum Co. of America, D.C.1941, 2 F.R.D. 224, 234:

"The District Court for the Southern District of New York has thirteen judges. When one of them has put out a considered opinion on a question of law, it is felt generally by his associates that good administration requires them to accept it unless it be reversed or modified by a higher court or unless some other judge of this court before whom the same question arises thinks that the ruling previously made by his associate was clearly erroneous. The adoption of such an opinion by his brethren is not because they do not feel free to disagree with the author, but, in part at least, because they feel that, so far as practicable, it is best to preserve uniformity in their rulings on law questions."

The jurisdictional objection will accordingly be overruled.

The motion is also opposed upon the ground that no order can be made permitting an amendment by which an individual claimant may be specifically named as a party plaintiff, in the interval of one hundred twenty days after the date of the enactment of the statute, unless each of such individual claimants has already filed "his written consent to become a party plaintiff to the action." It is argued that the last sentence of Section 8 requires the filing of the written consent as a condition precedent.

A careful study of Section 8, as well as the general scheme...