Booth v. Montgomery Ward & Co.

• Decision Date: 22 April 1942
• Docket Number: Civ. No. 102.
• Citation: 44 F. Supp. 451
• Parties: BOOTH v. MONTGOMERY WARD & CO., Inc.
• Court: U.S. District Court — District of Nebraska

44 F. Supp. 451

BOOTH v. MONTGOMERY WARD & CO., Inc.

Civ. No. 102.

District Court, D. Nebraska, Lincoln Division.

April 22, 1942.

George Milliken, of Lincoln, Neb., for plaintiff.

Woods, Aitken & Aitken and Richard W. Smith, all of Lincoln, Neb., and John A. Barr and Brooks Wynne, both of Chicago, Ill., for defendant.

DELEHANT, District Judge.

The plaintiff, a citizen and resident of Nebraska, filed this action in the District Court of Lancaster County, Nebraska, to recover from the defendant, an Illinois corporation doing business in Nebraska, the sum of $437.12, as overtime wages and liquidated damages, alleged to be due to him in consequence of the defendant's disregard of the provisions of the Fair Labor Standards Act of 1938, together with attorney's fee and costs. Tit. 29, §§ 201-219, U.S.C.A. The action was removed to this court upon the defendant's petition. The plaintiff, thereupon, moved to remand; and it is upon that motion that the case now stands.

Only one question is presented to the court. Is every action brought in a state court for the recovery of judgment under the Fair Labor Standards Act of 1938 removable, at the option of the defendant, to the United States District Court? The finality of an order of this court remanding a removed action to the state court (Tit. 28, § 71, U.S.C.A.) admonishes the court to extreme caution in its study of the issue.

After defining the extent of the civil liability of an employer to his aggrieved employee for violation of Sec. 206 or Sec. 207 of the title, the act, in Tit. 29, § 216(b), U.S.C.A., proceeds: "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."

It would appear to be obvious that the congress intended, by the foregoing language respecting the venue of actions under the law, to allow to the employee the right to institute and prosecute his civil action for the recovery of his statutory benefits, in any lawfully constituted court, state or federal, which, by the law of its erection, may reach the persons of the necessary parties, and have jurisdiction over the sum of money immediately involved. The term, "court of competent jurisdiction" is judicially defined to admit of that inference. Babbitt v. Doe ex dem. Brush, 4 Ind. 355, In re Norton, 64 Kan. 842, 68 P. 639, 91 Am.St.Rep. 255. Some of the considerations which probably impelled the congress to that grant of jurisdiction will be suggested briefly and in their proper order.

For some time there was judicial doubt about the jurisdiction of the federal courts of actions under the law, in the absence of diversity of citizenship and the minimum jurisdictional financial requirement. Robertson v. Argus Hosiery Mills, D.C., 32 F.Supp. 19; Stewart v. Hickman, D.C., 36 F.Supp. 861. But, it is now manifest that, both by reason of the express grant of jurisdiction above quoted, Tit. 29, § 216(b), U.S.C.A. (which to the writer of this opinion seems the obviously sufficient ground), and because they arise "under any law regulating commerce", Tit. 28, § 41(8), U.S.C.A., these actions may be maintained in the United States District Courts, irrespective of the amount involved or the citizenship of the parties. Williams v. Jacksonville Terminal, 62 S.Ct. 659, 86 L.Ed. ___, opinion by Mr. Justice Reed filed March 2, 1942; Opp Cotton Mills v. Administrator, 312 U.S. 126, 657, 61 S.Ct. 524, 85 L.Ed. 624 (jurisdiction exercised but not challenged); Argus Hosiery Mills v. Robertson, 6 Cir., 121 F.2d 285, reversing D.C., 32 F.Supp. 19, certiorari denied Nov. 10, 1941, 62 S.Ct. 181, 86 L.Ed. ___; Campbell v. Superior Decalcominia Co., D.C., 31 F.Supp. 663; Fishman v. Marcouse, D. C., 32 F.Supp. 460; Lengel v. Newark Newsdealers Supply Company, D.C., 32 F.Supp. 567; Rogers v. Glazer, D.C., 32 F.Supp. 990; Townsend v. Boston & M. R. R., D.C., 35 F.Supp. 938; Divine v. Levy, D.C., 36 F.Supp. 55; Berger v. Clouser, D.C., 36 F.Supp. 168; Martin v. Lain Oil & Gas Co., D.C., 36 F.Supp. 252; Remer v. Czaja, D.C., 36 F.Supp. 629; Missel v. Overnight Motor Transportation Co., D.C., 36 F.Supp. 980, reversed on non-jurisdictional ground, 4 Cir., 126 F.2d 98; Stucker v. Roselle, D. C., 37 F.Supp. 864; Farr v. Smith Detective Agency & Night Watch Service, D.C., 38 F.Supp. 105; Britt v. Cole Drug Co., D.C., 39 F.Supp. 90; Tolliver v. Cudahy Packing Co., D.C., 39 F. Supp. 337. Owens v. Greenville News-Piedmont, D.C., 43 F.Supp. 785, decided April 1, 1942, vide infra. In many of these cases the conclusion sustaining jurisdiction rests substantially on Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 651, 83 L.Ed. 1092, in which the Supreme Court of the United States sustained the jurisdiction of the Federal District Court, 24 F.Supp. 919, of a tobacco producers' suit challenging the validity of the Agricultural Adjustment Act of 1938, 7 U.S.C.A. § 1281 et seq., on the ground that it was a "proceedings arising under any law regulating commerce".

Likewise, the jurisdiction of the state courts is conceded, by way of dictum, in several of the foregoing cases. And it is directly affirmed in many others; among which are Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706; Mengel Co. v. Ishee, Miss., 4 So.2d 878; Ricciardi v. Lazzara Baking Corporation, D.C., 32 F.Supp. 956; Stewart v. Hickman, D.C.Mo., 36 F. Supp. 861; Garrity v. Iowa-Nebraska L. & P. Co., unreported, but Case No. 104 Civil, in this division of this court, opinion filed August 11, 1941; Wingate v. General Auto Parts Co., D.C., 40 F.Supp. 364; Kuligowski v. Hart, D.C., 43 F.Supp. 207; and Phillips v. Pucci, D.C.Mo., 43 F.Supp. 253; Owens v. Greenville News-Piedmont, supra.

The equal availability of the state and federal courts being acknowledged, may a defendant defeat the election of forums reposed in the plaintiff by a right of removal? In other words, is the grant of jurisdiction to the state courts left at the mercy of the defendant? In effect, a demand for removal insists that it is.

The claimed right of removal in this instance is predicated by the defendant solely upon Tit. 28, § 71, U.S.C.A.; from which the following material language is quoted in defendant's brief: "Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction, in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district."

Speaking generally, and without immediate reference to suits based upon the act presently under examination, a case is one arising under the laws of the United States, if, and only if, "it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends"; and the existence of this real and substantial dispute or controversy must appear from the complaint itself. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 706, 56 L.Ed. 1205; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 97, 81 L.Ed. 70.

In the latter case, Mr. Justice Cardozo uses this clear language:

"How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. 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. * * * 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. * * * Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense."

In their excellent memorandum brief, counsel for the defendant quote and segregate the elements of the foregoing test and proceed to argue that the plaintiff's petition in the state court meets every one of them. The argument is scholarly and ingenious, but the court can not agree to all of its conclusions. That "a right created by the laws of the United States is an essential element of the plaintiff's cause of action" is undoubtedly true in the present case. Possibly, too, it may be maintained that the "right is such that it will be supported if the law of the United States is given one construction or effect and defeated if it receives another", although that test is not certainly met in this case. But the court is satisfied that the remaining elements of the test can not be affirmed here. To the court, it does not appear in this case both that "a genuine and present controversy, not merely a possible or conjectural one, exists" with respect to statutory construction, and that such "controversy is disclosed upon the face of the petition, unaided by the answer or by the petition for removal."

To aver that the last two tests are met by the plaintiff's petition involves implicitly the assertion that every suit under the act necessarily involves "genuine and present, and not possible and conjectural, controversies" of statutory construction. The court is not persuaded of the validity of that position. A wide variety of purely factual answers might have...