Bumpus v. Remington Arms Co., 4537.

• Decision Date: 27 March 1948
• Docket Number: No. 4537.,4537.
• Citation: 77 F. Supp. 94
• Parties: BUMPUS v. REMINGTON ARMS CO., Inc.
• Court: U.S. District Court — Western District of Missouri

77 F. Supp. 94

BUMPUS v. REMINGTON ARMS CO., Inc.

No. 4537.

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

March 27, 1948.

Henry A. Riederer and Frederick J. Freel, both of Kansas City, Mo., for plaintiff.

Lathrop, Crane, Sawyer, Woodson, Righter and H. F. Blackwell, Jr., all of Kansas City, Mo., for defendant.

REEVES, District Judge.

Attorneys for plaintiff have filed a motion for a rehearing and in doing so are very emphatic. Greater emphasis is incorporated in their suggestions in support of said motion than in the motion itself.

For instance, the motion assigns as reasons, among others, for a rehearing:

"1. Because the court's holding * * * is based upon inference and speculation, and is a finding of fact not based upon evidence submitted to the court."

"3. Because the court's holding * * * did not take into consideration the `four corners' of the contract * * *."

"4. Because in holding that plaintiffs' complaint failed to state a cause of action cognizable in this court * * * the court has failed to follow and its opinion and decisions are in conflict with certain controlling decisions, to the contrary, cited by plaintiffs in their suggestions, and with the Federal Rules of Civil Procedure and the weight of authority interpreting the same."

"5. Because the court's holding * * * is a conclusion of law not based upon facts and evidence submitted by the parties hereto and properly before the court, and is inconsistent with and contrary to that portion of the contract which provides: `An employee is considered to be working, if he is required to be on duty.'"

In the Suggestions in Support of Motion for Rehearing counsel say that their motion should be granted "to correct manifest error in the memorandum opinion dated December 10, 1947 * * *," and, "to set aside Paragraphs numbered 4 and 5 of the Court's memorandum opinion, and to amend the finding therein to conform with the accepted rule of the majority of the decisions and the well-recognized interpretation of the new Federal Rules of Civil Procedure," 28 U.S.C.A. following section 723c.

Counsel say:

"D. * * * these decisions and the weight of authority * * * are directly at variance with that part of the memorandum opinion, which disposes in a cursory manner of valid claims inuring to plaintiffs * * *."

"* * * plaintiffs would still be entitled to their day in Court to prove their claim on custom and practice."

"* * * plaintiffs challenge the Court's conclusion in Par. 5 on page 7 of the opinion * * * and earnestly entreat the Court to note that the Portal Act, Article 2, paragraph a, subparagraph 2, does not require such custom and practice to be dependent upon a written contract, * * *."

"* * * we feel the Court will want to correct its position with respect thereto * * *."

"Conclusion * * * We feel that the most ardent foe of the common man and the most fervent sponsor of the so-called Portal-to-Portal Act could not have contemplated at any time that these plaintiffs would be cast out of Court without any hearing when the complaint as recognized by the Court plainly states a claim under the provisions of the new Act."

"Plaintiffs, by reason of the Court's failure to rule on that part of the motion relating to their cause of action under Executive Order 9240 40 U.S.C.A. § 326 note, find themselves in the anomalous position of being ruled out of Court without any finding either of fact or of law relative to their claim based on said Executive order; and denied a trial on their claims under the Portal Act by finding of fact based on an inference, without having had the opportunity to present the real facts on their cause of action under the Portal-to-Portal Act. * * *."

By these averments it was unquestionably the purpose of diligent counsel to stimulate and arouse the judicial conscience. The language should be considered adequate for that purpose. In writing as they did, no doubt able counsel felt that apathy and lethargy are the relentless enemies of all human institutions and they were eager to put such foes to flight in this case.

Pursuant to this motion, supported by vigorous suggestions, the pleadings have been re-examined.

1. Contrary to the statements of counsel, no findings of fact were made in the case. The status of the case did not call for such. The opinion was based entirely upon the pleadings, and particularly the complaint.

2. Adverting to the history of the case and the chronology of pleadings filed, it is to be noted that the complaint for unpaid wages and damages was filed on January 21, 1947. The case then was based upon the famous case of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. Subsequently, to wit, on March 18, 1947, the plaintiff filed her First Amended Complaint, which was but an amplification of the first complaint, with the introduction of parties "similarly situated" as claimants.

As is well known, the Anderson case was considered in the nature of judicial legislation, and the Congress promptly enacted a law designed to repeal such judicial legislation. The so-called Portal-to-Portal Pay Act was approved May 14, 1947, 29 U.S.C. A. § 251 et seq. Clearly, by the Congressional enactment, plaintiff's pleadings failed to confer jurisdiction upon the federal court or, if such jurisdiction had been conferred, it was wholly taken away by the Congressional enactment.

On July 25, 1947 plaintiff, through her attorneys, filed an Amended Complaint, and by such complaint undertook to conform her pleadings to the exception incorporated in the Portal-to-Portal Act. Such an exception, in effect, maintained or retained the jurisdiction of the United States District Courts in those cases where the activity was compensable by:

Title 29 U.S.C.A. § 252.

"(a) * * * (1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or

"(2) A custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer."

Such last amendment of the complaint was by interlineation and contained, among others, the following averments: "Plaintiff alleges that all of said work, duties and mental and physical exertion done and performed by herself and such other similarly situated parties was to be paid and compensated for by defendant by reason of and under the terms of the express provisions of the contract or agreement hereinbefore referred to, as well as other agreements or contracts executed for the benefit of plaintiffs * * *." (Italics mine).

Counsel then set out verbatim et literatim the "express contracts referred to herein * * *:"

"A" "Contract dated November 20, 1940, with amendments thereto between defendant and the United States of America." (Italics mine).

Among other provisions of the contract were the following:

"B" "Information Published by Defendant in 1941 for Employees: Overtime Payment: `Compensation at the rate of one and one-half times the regular hour rate is paid for all time worked in excess of 40 hours in any one pay week, for time worked in excess of 8 consecutive hours, and for time worked on certain specified holidays, although overtime will be paid only once for extra time worked' * * *."

"Hours of Work: Working hour schedules are posted in each Area and vary slightly to suit the needs of the particular department. * * *."

"`It is very important that you punch your time card immediately upon entering the plant and likewise at the end of the shift.'" "(Information for...