Bell Aircraft Corp. v. Anderson

• Decision Date: 13 March 1946
• Docket Number: 31070.
• Citation: 38 S.E.2d 66,73 Ga.App. 633
• Parties: BELL AIRCRAFT CORPORATION v. ANDERSON.
• Court: Georgia Court of Appeals

38 S.E.2d 66

73 Ga.App. 633

BELL AIRCRAFT CORPORATION v. ANDERSON.

No. 31070.

Court of Appeals of Georgia, Division No. 1.

March 13, 1946

Rehearing Denied March 29, 1946.

Syllabus by the Court.

1. 'The section of Fair Labor Standards Act permitting action to recover liability under the act to be maintained in any 'court of competent jurisdiction' permits employee to institute and prosecute civil action for recovery of his statutory benefit in any lawfully constituted court state or federal, which, by the law of its creation, may reach the persons of the necessary parties and have jurisdiction over the sum of money immediately involved. Fair Labor Standards Act of 1938, § 16(b), 29 U.S. C.A. § 216(b).' Booth v. Montgomery Ward & Co., D.C., 44 F.Supp. 451.

2. 'The legislative purpose disclosed by Fair Labor Standards Act provision that action to recover liability may be maintained in any court of competent jurisdiction, was to grant broad jurisdiction for enforcement of obligation imposed under the act and to vest plaintiff employee with election between available courts. Fair Labor Standards Act of 1938, § 16(b), 29 U.S. C.A. § 216(b).' Booth v Montgomery Ward & Co., supra.

3. Under our interpretation of such statement the instant case was not removable at the option of the defendant and over the objection of the plaintiff from the State court to the District Court of the United States.

Hugh C. Anderson, now defendant in error, on the fifth day of July, 1945, filed suit in the Civil Court of Fulton County against Bell Aircraft Corporation, Georgia Division, now plaintiff in error, for unpaid wages alleged to be due him arising out of the provisions of the Fair Labor Standards Act of 1938, P.L. No. 718, 75 Cong., 3d Sess., 52 Stat. 1060, as amended, P.L. No. 344 of August 9, 1939, 29 U.S. C.A. §§ 201-219. On the second day of August, 1945, and before the time it was required by the law of Georgia or the rules of the court to answer or plead in said suit Bell Aircraft Corporation, Georgia Division, filed in said case its petition for removal of the said cause to the United States District Court for the Northern District of Georgia, Atlanta Division, together with a bond for removal with good and sufficient security thereon as required by Title 28, § 72, U.S. C.A., and with the written notice to the plaintiff's attorney of the filing of said petition for removal, which notice contained, at the time of filing with the petition for removal, acknowledgment of service thereon signed by the attorney of record for the plaintiff, dated the second day of August, 1945, in compliance with said Title 28, § 72, U.S. C.A. On the sixth day of August, 1945, plaintiff filed in said case a document entitled 'Answer and Objection to Removal of Action.' On the 20th day of August, 1945, after argument of counsel for both parties was had the court rendered its order which among other provisions denied the petition for removal filed by the defendant, holding in effect that actions arising under the law under which the cause of action arose were not removable. To that part of said order denying its petition for removal plaintiff in error brings error to this court on the ground that same was contrary to law in that under the law pertaining to the removal of said causes said petition for removal should have been granted.

Edgar A. Neely, Jr. (on motion for rehearing), M. Neil Andrews, J. Ellis Mundy, and Reid B. Barnes, all of Atlanta, and L. M. Blair, of Marietta, for plaintiff in error.

Robert L. O'Neil, of Atlanta, for defendant in error.

MacINTYRE Judge.

'Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. June 25, 1938, c. 676, § 16, 52 Stat. 1069.' 29 U.S. C.A. § 216(b). This case should be affirmed if the court below was correct in holding that this was an action brought in a state court to recover unpaid minimum wages, overtime compensation, etc., under the Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq., and we think that it was not removable at the option of the defendant over the objection of the plaintiff to the District Court of the United States.

The question here presented was decided in Brantley v. Augusta Ice & Coal Co., D. C., 52 F.Supp. 158, by Judge Lovett of the United States District Court for the Southern District of Georgia, and he there said: 'The right answer to the question posed turns upon the interpretation to be given to the language of the Fair Labor Standards Act, Sec. 16(b), which provides, 'Action to recover such liability (for unpaid wages, etc.) may be maintained in any court of competent jurisdiction', and employees may designate an agent or representative 'to maintain such action.' 29 U.S. C.A. § 216(b). Except for this section it seems clear the case would be removable without regard to citizenship or amount in controversy because it is a proceeding arising under a law regulating commerce, of which a federal district court has original jurisdiction. 28 U.S. C.A. § 71; 28 U.S. C.A. § 41(8); Mulford v. Smith, 307 U.S. 38, 46, 59 S.Ct. 648, 83 L.Ed. 1092; Robertson v. Argus Hosiery Mills, 6 Cir., 121 F.2d 285, 286. Did Congress use the word 'maintain' twice in the same sentence in the narrow sense of filing, commencing or bringing suit or in the larger meaning of prosecuting to final judgment? We should endeavor to discover, if we can, the legislative intention and then give effect to it, and doing so we would give ordinary words their usual significance unless it plainly appears some other meaning was intended. In the felicitous language of Judge Cardozo, 'The tokens of intention are within the statute and outside of it.' They are discussed in the cases I shall presently mention and will not be elaborated upon by me except to say that we must consider the words in the light of their purpose and not isolated from the text of the Act. That some degree of continuity attaches to the word 'maintain' when used as here, see Smallwood v. Gallardo, 275 U.S. 56, 61, 48 S.Ct. 23, 72 L.Ed. 152, and 26 Words and Phrases, Perm.Ed., pages 60, 61.' Judge Lovett then lists a number of decided cases, some deciding for removal and some against removal, and all but one are decided by District Courts of the United States. More of these cases are decided against removal than are decided for removal. Judge Lovett then calls attention to and approves of what to him was the convincing reasoning and logic of Judge Otis in the case of Fredman v. Foley Bros., D.C., 50 F.Supp. 161, and of Judge Delehant in the case of Booth v. Montgomery Ward & Co., D.C., 44 F.Supp. 451, and comes to the conclusion that the case he was considering was not removable. We agree with the reasoning and logic of Judge Lovett and the authorities cited by him against removal in Brantley v. Augusta Ice & Coal Co., D.C., 52 F.Supp. 158, and there is little if anything we can add to what is said in the Brantley, Booth and Fredman cases, supra, and feel that it is so well said by them that it is unnecessary for us to add anything thereto.

We would however, like here to particularly call attention to the reasoning of Judge Delehant in Booth v. Montgomery Ward & Co., D.C., 44 F.Supp. 451, 455(5) which is: 'This court is satisfied that the legislative purpose, in harmony with the prompting impulse of the Fair Labor Standards Act was to grant a broad jurisdiction for the enforcement of the obligations imposed under the act, and specifically to vest the plaintiff employee with the election between the available courts. The reasons for that course are manifest. It was and is obvious that, except in very rare group or class actions, the amount of potential recovery under the act will be so small that the aggrieved employee will be tempted to abandon the vindication of his right unless he may institute his suit and prosecute it to effect...