Carroll v. Pittsburgh Steel Co.

• Decision Date: 19 March 1952
• Docket Number: Civ. No. 8343.
• Citation: 103 F. Supp. 788
• Parties: CARROLL v. PITTSBURGH STEEL CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

103 F. Supp. 788

CARROLL v. PITTSBURGH STEEL CO.

Civ. No. 8343.

United States District Court W. D. Pennsylvania.

March 19, 1952.

Harry Alan Sherman, Pittsburgh, Pa., for plaintiff.

John G. Wayman and Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for defendant.

STEWART, District Judge.

Plaintiff brought this action to recover unpaid overtime compensation and penalties under Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b), based upon a period of employment from July 28, 1940 to September 30, 1945. On December 27, 1949 and prior to filing an answer to the complaint, the defendant filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C., alleging that the plaintiff's claim was barred by Section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255. Subsequently, on June 11, 1951, a hearing was held on this motion; and, on September 27, 1951, an order was entered by this Court in conformance with an opinion filed at the same time granting the defendant's motion for summary judgment. D.C., 100 F.Supp. 749.

Thereafter, by a petition dated October 31, 1951, and filed November 14, 1951, plaintiff requested leave to file an amended complaint on the grounds that after reading the opinion of this Court on the motion for summary judgment, counsel for the plaintiff "reviewed the said opinion with plaintiff and learned that additional promises had been made subsequent to the effective date of the Portal-to-Portal Act." This results from that portion of the prior opinion in this case which reads, 100 F.Supp. at page 751, as follows: "Plaintiff contends, however, that the promise of the defendant of July 29, 1946, tolls this statute of limitations. Although it may be that the promise was such as to toll the applicable statute of limitations on the date of the promise, a question not before us, it could not toll a statute not yet enacted. Hughes v. Werner's Estate, D.C.S.D.Ill., 1948, 78 F.Supp. 762. No new promise after the effective date of the Portal-to-Portal Act having been alleged, it follows that Section 6 of that Act bars this action. This conclusion was reached in Hughes v. Werner's Estate, supra, on similar facts."

In a recent case, Hirshhorn v. Mine Safety Appliances Company, D.C.W.D.Pa. 1951, 101 F.Supp. 549, this Court reviewed several decisions under Rule 15 governing the granting of leave to file amendments. As stated therein, the primary question for the Court to consider in the exercise of the discretion vested in it is whether the allowance of the amendment will work injustice upon any of the parties. In resolving this question, timeliness of the motion is one of the elements which should be considered. Hirshhorn v. Mine Safety Appliances Company, supra. This is an important factor in the case before us now. Plaintiff's motion was served on the defendant approximately 34 days after judgment had been entered for the defendant, and was filed with this Court about two weeks later. However, the fact that the motion follows the entry of judgment is not decisive, although it is certainly important and material.

Plaintiff argues that he need not anticipate the defense of the Statute of Limitations, and that, if it is raised, he should be given an opportunity to amend his complaint to show facts which would toll the statute. Granting the proposition as stated to be an accurate statement of the law, it is neither completely applicable nor decisive under the facts of this case. The defense of the bar of the Statute of Limitations is an affirmative one under Rule 8(c) and must be pleaded by the party asserting it. Van Sant v. American Express Co., 3 Cir., 1948, 169 F.2d 355. As stated by counsel, a plaintiff is not required to anticipate this defense. Alden-Rochelle, Inc. v. American Soc. of C. A. & Publishers, D.C. S.D.N.Y.1942, 3 F.R.D. 157. However, this does not mean that this defense may not be raised and considered on a motion for summary judgment filed prior to an answer. Rather, this defense may be so considered and such a procedure was followed by the United States District Court for the Eastern District of Pennsylvania in Hartmann v. Time, D.C.E.D.Pa.1946, 64 F.Supp. 671, reversed in part on other grounds, 3 Cir., 1948, 166 F.2d 127, 1 A.L.R.2d 370. See 3 Barron & Holtzoff Federal Practice and Procedure § 1245 (Rules Ed.) and 3 Moore's Federal Practice § 56.02 (1938 ed.). In any event, this matter was considered on the motion for summary judgment without objection on the part of the defendant and he did not appeal within the 30-day period after the entry of the order of this Court granting the motion. In spite of this, we would grant plaintiff's motion to amend if we felt that justice required it. We do not so conclude. On the contrary, it seems to us that injustice to the defendant would result were we to vacate the judgment and allow the amendment at this late date. The plaintiff has known since December 27, 1949 (on which date defendant filed its motion for summary judgment) that defendant relied on the defense of the Statute of Limitations and made no effort to amend his complaint or file counter-affidavits setting up promises other than the one alleged in paragraph VIII of the original complaint until October 31, 1951 when he served defendant with a copy of the petition now pending. No excuse for this delay is given by the plaintiff except that which may be inferred by the...