Fenton v. Walling, No. 10438
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | WILBUR, MATHEWS, and HEALY, Circuit |
| Citation | 139 F.2d 608 |
| Parties | FENTON v. WALLING, Administrator of Wage and Hour Division, United States Department of Labor. SMITH v. SAME. |
| Decision Date | 01 February 1944 |
| Docket Number | No. 10438,10439. |
139 F.2d 608 (1943)
FENTON
v.
WALLING, Administrator of Wage and Hour Division, United States Department of Labor. SMITH
v.
SAME.
Nos. 10438, 10439.
Circuit Court of Appeals, Ninth Circuit.
December 30, 1943.
Rehearing Denied February 1, 1944.
Louis Ferrari, G. D. Schilling, Kenneth M. Johnson, and Philip S. Ehrlich, all of San Francisco, Cal., for appellants.
Douglas B. Maggs, Sol., Wage and Hour Division, U.S. Dept. of Labor, Irving J.
Before WILBUR, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
Involved here are two appeals from orders adjudging appellants severally guilty of contempt and committing them to the custody of the marshal until they should purge themselves thereof.
Appellee, as administrator of the Wage and Hour Division of the Department of Labor, instituted suit in the court below against the Bank of America National Trust & Savings Association, pursuant to the authority given by § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C.A. § 217, to restrain violations of the overtime and record-keeping provisions of the Act. The Bank moved for a dismissal of the complaint and its motion was denied. It then filed an answer, presumably denying, among other things, that it is amenable to the Act.1
The case being at issue and ready for trial, appellee served notice on the Bank that the deposition of appellant Fenton would be taken by oral examination on a specified date, and subpoena to this end was served on Fenton. The latter is a vice president of the Bank and for the previous eighteen months had been chairman of its operating committee, prior to which time he had been personnel director. During the course of the examination Fenton was questioned concerning the nature of the wage and hour records kept, and the hours worked by and compensation paid to the Bank's employees. On instruction from the Bank's counsel Fenton declined to answer the questions. Appellee applied to the court, pursuant to Rule 37(a), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for an order compelling the witness to answer. After a hearing, Fenton was directed by the court to answer the questions, but again declined to do so.
While these events were in progress, appellee, pursuant to Rule 34 (relating to discovery and the production of documents), filed and served on the Bank a motion for an order directing the Bank to produce, and to permit appellee to inspect and copy, certain documents concerning the hours worked by and compensation paid to employees of the Bank.2 After a hearing on the motion the court ordered the Bank, on a specified date at its main office, to produce and permit the inspection of the documents referred to. Appellant Smith, who was the executive vice president charged with the general administrative supervision and management of the Bank, and who had authority to comply with the court order, refused on appropriate request of counsel for appellee to arrange for the production of these records.
Appellee then instituted contempt proceedings against Smith and Fenton under Rule 37(b). In their verified returns to the show cause orders, the main ground of defense (and the only one urged here) was that the court lacked jurisdiction of the subject matter in that the Bank, so it was alleged, had no employees engaged in interstate commerce, hence was not subject to the provisions of the Fair Labor Standards Act. There followed a hearing at the conclusion of which the court found that the failure of Smith and Fenton to obey the orders impaired and impeded the suit and constituted civil contempt. The two were directed to be imprisoned until such time as they were ready to obey the orders. The commitments,...
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Irving, In re, Nos. 740-741
...60 S.Ct. at 542. See also Alexander v. United States, 201 U.S. 117, 121-22, 26 S.Ct. 356, 50 L.Ed. 686 (1905) (dictum); Fenton v. Walling, 139 F.2d 608, 610 (9th Cir. 1943), Cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1944) (since non-parties have no appeal from a final judgmen......
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Halderman v. Pennhurst State School & Hospital, No. 81-2381
...117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904); Fenton v. Walling, 139 F.2d 608 (9th Cir. 1943), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 21 In Rennie v. Klein, 653 F.2d 836, 849 (3d Cir. 1981) (en banc) t......
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U.S. Catholic Conference, In re, No. 1486
...underlying lawsuit in which discovery was sought. E.g., In re Manufacturers Trading Corp., 194 F.2d 948 (6th Cir.1952); Fenton v. Walling, 139 F.2d 608 (9th Cir.), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1944); see Alexander v. United States, 201 U.S. 117, 122, 26 S.Ct. 356......
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Appeal of Goodfader, No. 4143
...witness cannot assert a party's objections to the cause of action or the materiality of the testimony sought from him. Fenton v. Walling, 139 F.2d 608 (9th Cir.); Nelson v. United States, 201 U.S. 92, 114, 115, 26 S.Ct. 358, 50 L.Ed. 673 (cited in Blair v. United States, 250 U.S. 273, 282, ......
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Irving, In re, Nos. 740-741
...60 S.Ct. at 542. See also Alexander v. United States, 201 U.S. 117, 121-22, 26 S.Ct. 356, 50 L.Ed. 686 (1905) (dictum); Fenton v. Walling, 139 F.2d 608, 610 (9th Cir. 1943), Cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1944) (since non-parties have no appeal from a final judgmen......
-
Halderman v. Pennhurst State School & Hospital, No. 81-2381
...117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904); Fenton v. Walling, 139 F.2d 608 (9th Cir. 1943), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 21 In Rennie v. Klein, 653 F.2d 836, 849 (3d Cir. 1981) (en banc) t......
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U.S. Catholic Conference, In re, No. 1486
...underlying lawsuit in which discovery was sought. E.g., In re Manufacturers Trading Corp., 194 F.2d 948 (6th Cir.1952); Fenton v. Walling, 139 F.2d 608 (9th Cir.), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1944); see Alexander v. United States, 201 U.S. 117, 122, 26 S.Ct. 356......
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Appeal of Goodfader, No. 4143
...witness cannot assert a party's objections to the cause of action or the materiality of the testimony sought from him. Fenton v. Walling, 139 F.2d 608 (9th Cir.); Nelson v. United States, 201 U.S. 92, 114, 115, 26 S.Ct. 358, 50 L.Ed. 673 (cited in Blair v. United States, 250 U.S. 273, 282, ......