Delman v. Federal Products Corporation

• Decision Date: 09 January 1958
• Docket Number: No. 5204.,5204.
• Citation: 251 F.2d 123
• Parties: Clement J. DELMAN, Plaintiff, Appellant, v. FEDERAL PRODUCTS CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

251 F.2d 123 (1958)

Clement J. DELMAN, Plaintiff, Appellant, v. FEDERAL PRODUCTS CORPORATION, Defendant, Appellee.

No. 5204.

United States Court of Appeals First Circuit.

Heard October 1, 1957.

Decided January 9, 1958.

Thomas W. Pearlman, Providence, R. I., for appellant.

Wilfrid E. McKenna, Providence, R. I., with whom Bernard P. Campbell, Providence, R. I., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff-appellant, born Clemente Giuseppe De Lucia but who became by judicial change of name Clement Joseph Delman, brought this case against the defendant-appellee in the court below on June 30, 1955, to obtain reinstatement in employment with seniority, status, pay, insurance, pension and other benefits, and also for money damages for failure to grant such reinstatement. He alleged in his original complaint that he was first employed by the defendant in January, 1941, that he left his employment as a "gage-toolmaker" in June, 1944, to enter the armed forces of the United States, that he was honorably discharged therefrom in June, 1946, and that, being still qualified to perform the duties of his former position, he applied within ninety days after his discharge for reemployment but that the defendant refused, and continued to refuse to reemploy him until May 30, 1955, when it took him on again but at a lower rate of pay and without the seniority rights and other benefits to which he was entitled. The defendant promptly moved to dismiss the complaint for failure to state a claim upon which relief could be granted, and also because the plaintiff's cause of action had not accrued within six years of the time the action was brought and because the plaintiff had been guilty of laches. The District Court granted the motion. Ruling that the six year limitation on the bringing of actions imposed by § 3 of Chapter 510 of the General Laws of Rhode Island, Revisions of 1938, applied, the court concluded:

"Since the complaint shows on its face that the plaintiff\'s cause of action accrued not later than September 23, 1946, and this action was not commenced until June 30, 1955, it is barred by the statute of limitations. Accordingly, the complaint fails to state a claim upon which relief can be granted. My conclusions with respect to the statute of limitations makes it unnecessary to consider the additional ground, urged by the defendant, that the plaintiff\'s action is barred by laches." 136 F.Supp. 244

Promptly after entry of judgment dismissing his complaint, the plaintiff filed a motion to vacate the judgment and allow the filing of an amended complaint, which was granted by the court below. Cf. United States v. Newberry Mfg. Co., 1 Cir., 1941, 123 F.2d 453, 454. In his amended complaint the plaintiff expanded the allegations of his original complaint by asserting in substance that on many occasions during every year from 1946 to the time of his reemployment in 1955 he went to the defendant's place of business and requested reinstatement and that on each occasion the defendant acknowledged its duty to do so, had him fill out applications for reemployment, and promised to take him back as soon as expansion of its business from the post-war retraction afforded an opportunity. He further alleged that this conduct of the defendant, causing him to believe that he would be reemployed, lulled him into a false sense of security, and also so misled him that he refrained from resorting to legal proceedings to protect his statutory right to reinstatement in his former employment. He also alleged that the defendant, by actual misrepresentations, fraudulently concealed certain facts which if known would disclose that its failure to reinstate the plaintiff was in violation of the Selective Training and Service Act of 1940 and subsequent legislation enacted by Congress for the protection of veterans. Furthermore, there are allegations in the amended complaint which might be construed as asserting a cause of action for breach of the contract of employment under which the plaintiff returned to work in May, 1955, although there is no specific prayer for relief with respect to such a cause of action. This amended complaint, like its predecessor, concluded with a request for a "trial by jury on all questions relating to the issue of damages."

The defendant moved to dismiss this amended complaint but its motion was denied and so also was the defendant's motion to strike the case from the jury calendar. The defendant then answered and after numerous preliminary motions by both parties, including a motion by the plaintiff for trial by the court with an advisory jury as to the equitable issues presented, which was denied, the court assigned the case to the non-jury calendar and thereafter trial was had by the court on the issue of the plaintiff's right to be restored to employment. At the conclusion of the plaintiff's evidence the defendant moved for dismissal of the action under Rule 41(b) Fed.Rules Civ.Proc., 28 U.S.C., and the court granted the motion. In doing so the court said that it made no finding "at this stage of the testimony" as to whether or not the defendant's circumstances had so changed as to make it impossible or unreasonable for it to restore the plaintiff to his old position or one of like seniority, status and pay,¹ but rested its conclusion on express disbelief of the plaintiff's testimony.

It said that it was not satisfied on the testimony that the plaintiff had ever called at the defendant's plant after November, 1948, or even telephoned the defendant to inquire about reinstatement, and it also said that it was "not convinced that after 1948 this plaintiff had any sincere desire to secure employment from the defendant corporation." In concluding its opinion the court said:

"To summarize, viewing the testimony presented by the plaintiff in the light most favorable to the plaintiff, I feel that he has failed to prove a claim against this defendant which entitles him to relief. I further find that his action for damages is barred by the statute of limitations and his claim for reinstatement is barred by laches."

Wherefore, it granted the defendant's motion to dismiss and entered the judgment for the defendant from which the plaintiff has taken this appeal.

The plaintiff-appellant argues that the allegations in his amended complaint clearly set out not only a cause of action for failure to restore the plaintiff to his former position, or one of like seniority, status and pay, and for compensatory damages for its failure to do so, but also sets out a cause of action for breach by the defendant of the contract under which the plaintiff accepted reemployment in May, 1955, and that obviously the later cause of action is not barred by any statute of limitations. It does not appear that this contention was ever advanced in the court below. At any rate, that court did not consider it. But whether the contention is only the after-thought of a disappointed litigant or not, it comes to nothing for jurisdictional reasons. The plaintiff's cause of action for breach by the defendant of its contract to employ the plaintiff, if indeed such a cause of action is alleged, is certainly not one arising under the Constitution, laws or treaties of the United States but is one arising under state law. Federal jurisdiction over it must, therefore, rest upon the diversity jurisdiction conferred by § 1332(a) (1) of Title 28 of the United States Code. But jurisdiction under this section fails, for not only is there no allegation that the required jurisdictional amount is in controversy, but also it is apparent that the plaintiff and for jurisdictional purposes the defendant also are both citizens of Rhode Island. Nor is there pendent jurisdiction over the cause of action for breach of the contract of employment under the doctrine of Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, for that cause of action is not at all the same as the plaintiff's cause of action for failure to grant reemployment as the acts of Congress require, and under Hurn v. Oursler (289 U.S. at page 246, 53 S.Ct. at page 589) pendent federal jurisdiction exists only when "two distinct grounds in support of a single cause of action are alleged, one...