Divine v. Levy

• Decision Date: 13 December 1940
• Docket Number: No. 365.,365.
• Citation: 36 F. Supp. 55
• Parties: DIVINE v. LEVY et al.
• Court: U.S. District Court — Western District of Louisiana

36 F. Supp. 55

DIVINE v. LEVY et al.

No. 365.

District Court, W. D. Louisiana, Shreveport Division.

December 13, 1940.

LeRoy Smallenberger, of Shreveport, La., for plaintiff.

Blanchard, Goldstein, Walker & O'Quin, Elias Goldstein and Leon O'Quin, all of Shreveport, La., for defendants Ben Levy and others.

Barksdale, Bullock, Clark & Van Hook, of Shreveport, La., for defendant W. D. Chew, Jr.

Edward S. Klein, of Shreveport, La., for defendants Jay Weil and Harry Weil.

PORTERIE, Judge.

Lacy Divine, a common laborer, became employed in the erection of the drilling rigs for, then continued to work as a roughneck in, the exploitation of oil through the boring of two wells under two leases, known as Levee Board No. 1 and Levee Board No. 2. He began work on March 13, 1939, and continued to October 1, 1939, at the agreed pay of $40 per month with a free house estimated to be worth $11 per month, a total of $51 per month; then, from October 1, 1939, to January 1, 1940, he worked at $50 per month with the free house, or for a total of $61 per month; then from January 1, 1940, to March 15, 1940, and again from May 8, 1940, to June 15, 1940, he worked for a wage of $60 per month with the same house, or for a total of $71 per month. He was discharged on June 15, 1940, after having been fully paid this stipulated wage.

Plaintiff alleges that the oil produced at the wells was piped to the gathering lines of the Standard Oil Co. of La., Inc., to be then distributed in interstate and foreign commerce. He must have heard of the Fair Labor Standards Act of 1938, for on June 19, 1940, he appeared in person at the usual place where he had received payment previously, making claim for the deficiency due him, represented by that which the Fair Labor Standards Act allowed him as a minimum wage less that which he had been paid under the actual terms of employment. He was refused payment.

He enters this court under the authority of the Fair Labor Standards Act of 1938, Public No. 718, 75th Congress, 52 Stat. 1060, 29 U.S.C.A. §§ 201-219, making eight persons and one corporation defendants to his civil action and seeking judgment, individually and in solido, in the sum of $2,837.40, the aggregate of the various items of deficient compensation, calculated under the minimum requirements of the Act, and in the additional sum of $2,837.40 as liquidated damages provided under the Act, and for reasonable attorney's fees to be fixed by the court. He makes additional prayer for the continuous payment of $69.30 per week from June 19, 1940, until eventually paid, basing this latter item on the provisions of Act 150 of 1920, as amended by Act 138 of 1936, of the state of Louisiana, because, as alleged, under this Louisiana statute a continuous penalty accrues against the employer when immediate payment of a laborer's wage be not made upon demand.

For brevity we shall omit the names of the nine defendants and the determination of their respective legal relation to the issue, as further discussion will furnish this information.

The case is before the court not on its merits, but has been submitted and briefed upon various items of pleading permitted under the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and these pleadings, in their form and legal significance, will be left for the body of the opinion to develop.

A. Jurisdiction.

All defendants, except W. D. Chew, Jr., and the Leonard Company, have filed a plea alleging want of jurisdiction in this court of the subject matter.

"The Federal District Courts have jurisdiction of all suits arising under laws regulating interstate commerce, regardless of the citizenship of the parties or the sum or value in controversy. Section 24, subsections (1) and (8) of the Judicial Code, Title 28 U.S.C.A. § 41, subsections (1) and (8)." Fishman v. Marcouse, D.C., 32 F.Supp. 460, 462. See Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092, the real source of authority for decision. "The Fair Labor Standards Act of 1938 is a law of the United States regulating commerce and the instant case is a suit or proceeding under that law. I therefore find that this Court has jurisdiction regardless of the citizenship of the parties and the amount involved." Fishman v. Marcouse, supra, 32 F.Supp. at 462. See, also, Campbell v. Superior Decalcominia Co., Inc., D.C., 31 F.Supp. 663; Lengel v. Newark News-dealers Supply Co., D.C., 32 F.Supp. 567.

We are indebted to counsel for one of the movers for the above authorities as, in his brief, he abandons quite frankly his plea. Jurisdiction, therefore, is sustained; the plea is overruled.

B. Motion to Strike Paragraphs 22 and 23.

All defendants, except W. D. Chew, Jr., and the Leonard Co., have filed a motion to strike two paragraphs of the petition, wherein the provisions of La. Act 150 of 1920, as amended by La. Act 138 of 1936, are invoked, with the purpose of casting the several defendants continuously, until once paid, for the salary of $69.30 per week, because plaintiff, upon making demand upon Ben Levy, one of the defendants, on June 19, 1940, at the usual place for payment of his weekly salary, was not paid and has not been tendered payment since.

Plaintiff discloses by his petition that he was paid the amount due under the terms of his employment; that is, under the contract made by him with his employer. The amount of $69.30 per week which he demanded after his discharge is the amount allegedly due him under the minimum requirements of the Act.

From a reading of Section 18 of the Fair Labor Standards Act, 29 U.S. C.A. § 218, we believe it to be the clearly-expressed intention of the Act not to lower any of the labor standards existing in the several states, when they happen to be higher than the minimum standards established by the Act for all of the states. The section refers only to minimum wage, maximum workweek, and child-labor; it is silent as to penalty provisions. Therefore, we should assume that the act of Congress, through this section, by implication, supersedes the penalty provisions of the various state statutes on the relation of employer and employee.

Under § 216(b), we find the penalties under civil liability fixed by the Act to be "the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." (Italics ours.) Also, at the end of the section, it is provided as follows: "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

The plaintiff has entered court under the Federal act, seeking for himself all of its advantages. Should he be benefited additionally with whatever penalties the Louisiana statute may accord him? We answer in the negative.

The Louisiana statute antedates the Federal act and, in part, reads, as follows: "* * * within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether said employment is by the day, week or month, upon demand being made by the said discharged or resigned laborer or employee, upon his employer, at the place where said employee or laborer is usually paid." (Italics supplied.) It provides in the penalty section, as follows: "* * * shall be liable to the said laborer or other employee for his full wages from the time of such demand for payment by the discharged or resigned laborer or employee, until the said person, firm, or corporation shall pay or tender payment of the amount due to such laborer or other employee." The section then makes provision for reasonable attorney's fees. The legislature did not and could not anticipate the Federal act, which has its own penalty — the double of the amount due as liquidated damages.

Even though the penalties of both the state and federal statutes could be imposed without there being a direct conflict, we believe the penalty provision of the Federal act, when invoked, becomes exclusive and the penalty provisions of the state statute may not be applied. There may be no exact conflict in actual application of the two penalties, but, nevertheless, they conflict in essence because of duplicity. The Congress measured the penalty by the exactions of the Act (minimum wage, maximum hours, etc.) and no other than the specified penalties are to be imposed.

The Fair Labor Standards Act has been validated as to constitutionality, as a valid exercise of power to regulate interstate commerce. Opp Cotton Mills v. Administrator of Wage, etc., 5 Cir., 1940, 111 F.2d 23; Jacobs v. Peavy-Wilson Lbr. Co., D.C.La.1940, 33 F.Supp. 206. Section 2 of the Act, 29 U.S.C.A. § 202, containing the Congressional finding and the declaration of policy gives interstate commerce as the ground for enactment. It is admitted that plaintiff was...