Daves v. Hawaiian Dredging Co.

Decision Date10 September 1953
Docket NumberCiv. A. No. 674.
Citation114 F. Supp. 643
PartiesDAVES et al. v. HAWAIIAN DREDGING CO., Limited, et al.
CourtU.S. District Court — District of Hawaii


Landau & Fairbanks, (Samuel Landau, Honolulu, Hawaii), for plaintiffs.

Warren E. Burger, Asst. Atty. Gen., A. William Barlow, U. S. Atty., Honolulu, Hawaii, Marvin C. Taylor, Atty., Department of Justice, Washington, D.C., for defendant Hawaiian Dredging Co., Limited.

McLAUGHLIN, Chief Judge.

1. The Motion to Dismiss

This motion is based upon failure to state a claim upon which relief can be granted under Rule 8, Fed.Rules Civ.Proc., 28 U.S.C.A. Rules 8 provides, in part:

"A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, * * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment * * *."

This court thinks that the requirements of Rule 8 are not met by a mere "notice of disaffection" to the opposite party. See Lasky, Memorandum for the Committee on Rule 8, 13 F.R.D. 275, 276. This is the implication we find necessarily flowing from sub-section (2) of sub-paragraph (a) of Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief". Apparently the only practical way of making such a showing is to state the prima facie elements of the claim. Schaefer v. Macri, 9 Cir., 1952, 196 F.2d 162, certiorari denied 344 U.S. 832, 73 S.Ct. 38, 97 L. Ed. ___; Patten v. Dennis, 9 Cir., 1943, 134 F.2d 137, at page 138; Foley-Carter Ins. Co. v. Commonwealth Ins. Co., 5 Cir., 1942, 128 F.2d 718; Fleming v. Dierks Lbr. and Coal Co., D.C.W.D.Ark.1941, 39 F.Supp. 237, at pages 242-243. These elements should be indicated by operative facts, in order that entitlement to relief can be shown by the complaint. Pierce v. Wagner, 9 Cir., 1943, 134 F.2d 958; Eli E. Albert, Inc., v. Dun and Bradstreet, D.C.S.D.N.Y. 1950, 91 F.Supp. 283, at page 284.

Thus it seems to be the purpose of Rule 8 to relieve the pleader from the niceties of the dotted i and the crossed t and the uncertainties of distinguishing in advance between evidentiary and ultimate facts, while still requiring, in a practical and sensible way, that he set out sufficient factual matter to outline the elements of his cause of action or claim, proof of which is essential to his recovery. Lane Bryant, Inc., v. Maternity Lane, Ltd., of Calif., 9 Cir., 1949, 173 F.2d 559 at page 563. Therefore, if a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and money by the parties and the court.

Similarly, when the claim rests entirely upon a statute, it seems almost elementary that the defendant be entitled, without being forced to go into further procedures, to demand sufficient informative facts from the complaint to show that the plaintiff, if his facts be true, is actually within the terms of the statute in making his claim.

Section 216(b) of 29 U.S.C.A. gives a cause of action to employees engaged in interstate commerce, or in the production of goods for commerce, to recover money due them through failure of their employers to pay them the minimum wages and/or overtime pay as prescribed by Sections 206 and 207 of the same code. Under the provisions of the statute, at least one point emerges as being basic to the plaintiffs' right of recovery. That point is that the cause of action accrues only to employees in commerce, or who are producing goods for commerce, and such an allegation as pertaining to the plaintiff is essential to the statement of his claim under this statute. 29 U.S.C.A. §§ 206, 207, 216(b); Clyde v. Broderick, 10 Cir., 1944, 144 F.2d 348.

Due to the statutory origin of this claim, this allegation also appears to be a jurisdictional requisite. Gates v. Graham Ice Cream Co., D.C.Neb.1940, 31 F.Supp. 854; Baggett v. Henry Fischer Packing Co., D.C.W.D.Ky.1941, 37 F.Supp. 670.

On whether the employee is in commerce, the application of the Act is not tested by whether the employee's activities affect or indirectly relate to interstate commerce, but by whether they are in or so closely related to the movement of commerce as to be part of it. Employee activities, outside this movement, insofar as they are covered by the Act, are governed by the phrase "production of goods for commerce." Further, it is immaterial whether the employer is engaged in interstate commerce; it is the work of the employee which is decisive. McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538. Thus the determination of the obligation to pay the statutory minimum wage to each employee becomes an individual matter as to the nature of the employment of the particular employee. Foster v. National Biscuit Co., D.C.W.D. Wash.1940, 31 F.Supp. 552, at page 553.

The complaint in the instant case alleges in effect that the defendants were operating in areas subject to the jurisdiction of the United States, under contracts with the United States or some department thereof; that the 4646 plaintiffs were doing work pursuant to contract which was necessary to interstate commerce in that they did transportation and erection of materials, worked as artisans of various types in the construction trades, and did general clerical work, essential to the construction contracted for by the defendants. Nowhere in the complaint is there any factual reference to the locations of this work, or the purpose of the alleged transportation, stacking and installing, or in regard to what structures or facilities all this was done. There is no connection alleged between the few alleged facts and any interstate commerce as defined in the Fair Labor Standards Act, other than the bald claim that whatever was done was necessary to interstate commerce. We find no facts indicating that plaintiffs were engaged in commerce or so close thereto as to become a part of it. See Kam Koon Wan v. E. E. Black, Ltd., 9 Cir., 1951, 188 F.2d 558, at page 562, certiorari denied 1951, 342 U.S. 826, 72 S.Ct. 49, 96 L.Ed. 625; and McDaniel v. Brown and Root, 10 Cir., 1949, 172 F.2d 466, 471. Nor are there any allegations which lead to the conclusion that the plaintiffs were engaged in the production of goods for commerce, and in order to receive the benefits of the Act, employees must be engaged in commerce or in a process or operation necessary to the production of goods for commerce. That their activities may affect commerce is not sufficient. Walling v. Goldblatt Bros. Inc., 7 Cir., 1942, 128 F.2d 778, certiorari denied 318 U.S. 757, 63 S.Ct. 528, 87 L.Ed. 1130.

Further allegations that plaintiffs do not know the number of weeks or hours they themselves worked, the types of work they did, or the amounts of money paid to them tend to negate the existence of a claim and the good faith assertion of belief that a claim exists.

We therefore hold that the amended complaint does not spell out a cause of action or claim as required by the rule, for no facts are alleged showing that the plaintiffs, if those facts be true, are entitled to relief. General allegations in this regard are insufficient, and those set forth in this complaint are mere sketchy generalizations of a conclusionary nature unsupported by operative facts.

2. The Motion for Summary Judgment

Rule 56(b) of the Federal Rules of Civil Procedure provides in part that a party against whom a claim is asserted may at any time move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Subsection (c) provides in part that the adverse party may serve opposing affidavits, and that judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

In claims of this nature under the Fair Labor Standards Act, where the employment relates to construction of new facilities, employees of construction contractors are not engaged in commerce, even though the structures will on completion be used in commerce, or in the manufacture of goods for commerce. See: Reed v. Murphey, 5 Cir., 1948, 168 F.2d 257, affirmed on this point, Murphey v. Reed, 1948, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410; Kam Koon Wan v. E. E. Black, Ltd., 9 Cir., 1951, 188 F.2d 558, at page 562; certiorari denied 1951, 342 U.S. 826, 72 S. Ct. 49, 96 L.Ed. 625; Ritch v. Puget Sound Bridge & D. Co., 9 Cir., 1946, 156 F.2d 334, at page 337 (new buildings); McDaniel v. Brown and Root, 10 Cir., 1949, 172 F.2d 466, at page 471; Scholl v. McWilliams Dredging Co., 2 Cir., 1948, 169 F. 2d 729, at page 732; Parham v. Austin Co., 5 Cir., 1946, 158 F.2d 566, at page 568; Nieves v. Standard Dredging Co., 1 Cir., 1945, 152 F.2d 719, at page 721; Byrne v. Metcalfe Const. Co., D.C.Neb.1951, 99 F. Supp. 635, 637.

One ground for this motion by the defendants, supported by their affidavits and not denied by the plaintiffs, is that their construction contracts were with the United States Government, and the provisions of these contracts set up in considerable detail the nature of the work contracted for as all new construction, and its location. Location has some bearing on the nature of the work for our purposes, since it appears that in all cases the construction was in areas previously uninhabited, or unoccupied by any similar facilities, so that all construction involved in the contracts (and their later modifications) appears to have been new construction and not repair or addition to existing facilities.

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