Dutton v. Cities Service Defense Corp., 14400.

• Citation: 197 F.2d 458
• Decision Date: 26 June 1952
• Docket Number: No. 14400.,14400.
• Parties: DUTTON et al. v. CITIES SERVICE DEFENSE CORP.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

197 F.2d 458 (1952)

DUTTON et al. v. CITIES SERVICE DEFENSE CORP.

No. 14400.

United States Court of Appeals Eighth Circuit.

June 26, 1952.

Cooper Jacoway, Little Rock, Ark. (Talley & Owen, Jacoway & Jacoway, Little Rock, Ark., and Maurice Mitchell, Boston, Mass., on the brief), for appellants.

Frank E. Chowning, Little Rock, Ark. (H. C. Walker, Jr., Shreveport, La., and Moore, Burrow, Chowning & Mitchell, Little Rock, Ark., on the brief), for appellee.

Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

The question for decision is whether, by granting a motion of the defendant (appellee) for a dismissal of the complaint upon the ground that it failed to state claims of which the court had jurisdiction or for which relief could be granted, the District Court successfully terminated this action (a consolidation of a number of actions) brought to recover allegedly unpaid wages claimed to be due numerous plaintiffs and interveners (appellants), from the defendant under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219, and the Portal-to-Portal Act of 1947, 29 U.S.C.A. §§ 251-262.

The plaintiffs and interveners have appealed from the order of dismissal of the action and also from an order denying their motion for summary judgment. Rule 56, Federal Rules of Civil Procedure, 28 U.S. C.A. We are satisfied that the latter order was not appealable. If their complaint stated claims upon which the District Court has jurisdiction to grant relief, the order denying the motion for summary judgment will not end this litigation nor preclude a trial of the case upon the merits. The order is not final in any proper sense. See Morgenstern Chemical Co., Inc., v. Schering Corporation, 3 Cir., 181 F.2d 160, 161.

This Court has repeatedly pointed out the hazards involved in attempting to terminate litigation by dismissing a complaint for insufficiency of statement. To justify such a dismissal, it must appear as a matter of law that under no state of facts which could be proved in support of the claims pleaded would the plaintiff be entitled to any relief. See Woods v. Hillcrest Terrace Corporation, 8 Cir., 170 F.2d 980, 984, and cases cited. In the case of McComb v. Johnson, 8 Cir., 174 F.2d 833, 834, this Court said:

"* * * We have twice before had occasion to point out the impropriety of deciding questions of coverage under the Fair Labor Standards Act upon motions to dismiss a complaint for failure to state a claim upon which relief could be granted. Musteen v. Johnson, 8 Cir., 133 F.2d 106, 108; Stratton v. Farmers Produce Co., Inc., 8 Cir., 134 F.2d 825, 827. The futility of attempting to terminate a lawsuit by granting such a motion, unless it presents a simple, definite, clear-cut issue of law, has been pointed out by this Court in many cases. * * *"

So far as pertinent here, the Portal-to-Portal Act of 1947 provides:

"§ 252. 29 U.S.C.A. * * *

"(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, * * * for or on account of any activity of an employee engaged in prior to May 14, 1947, except an activity which was compensable by either —

"(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.

* * * * * *

"(d) No court of the United States, of any State, Territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any action or proceeding, whether instituted prior to or on or after May 14, 1947, to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not

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