Ferraro v. Arthur M. Rosenberg Co.

• Decision Date: 26 June 1946
• Docket Number: No. 296.,296.
• Citation: 156 F.2d 212
• Parties: FERRARO v. ARTHUR M. ROSENBERG CO. INC., OF NEW HAVEN, CONN.
• Court: U.S. Court of Appeals — Second Circuit

156 F.2d 212 (1946)

FERRARO v. ARTHUR M. ROSENBERG CO. INC., OF NEW HAVEN, CONN.

No. 296.

Circuit Court of Appeals, Second Circuit.

June 26, 1946.

Stoddard, Persky & Eagan, of New Haven, Conn., for defendant-appellee.

James F. Rosen, of New Haven, Conn., for plaintiff-appellant.

Before L. HAND, SWAN and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellant is a tailor who was employed as a fitter by the appellee, the Arthur M. Rosenberg Company, Inc., of New Haven, Conn., during the period from March 4, 1939 to November 5, 1942, inclusive. His duties required him to travel at times to work in cities outside of Connecticut and his hours of work were irregular. He was paid at first $35 per week. His weekly rate was increased $5 upon three occasions making it $50 at, and for some time before, the date his employment ended. He was paid only his regular weekly wages regardless of overtime.

He sued the appellee in the District Court for the District of Connecticut on February 24, 1943 to recover overtime compensation, liquidated damages and a reasonable attorney's fee under §§ 7(a) and 16(b), of the Fair Labor Standards Act, 29 U.S.C.A. §§ 207(a) and 216(b). In response to a motion by the appellee, his attorneys filed a bill of particulars which included an itemized statement of each day and hour he worked during the 192 weeks he was employed, where his services were performed, the amount of overtime worked each day and the overtime compensation he claimed, computed at $823.09 following Paragraph 12 of Interpretive Bulletin No. 4 issued in November 1938 and revised in December 1939 by the Department of Labor, Wages and Hours Division as a guide for the computation of the regular rate of pay and fluctuating number of hours. The appellee did not answer and on July 18, 1944 the appellant moved for a default and for a hearing on the question of damages. The default was entered. Nothing more was done for nearly eight months when the appellant, who had meanwhile discharged his first attorneys, by another attorney moved, in reliance upon Federal Rules of Civil Procedure, rule 55(c), 28 U.S.C.A. following section 723c, to open the default and for leave to amend his bill of particulars. This was heard on April 6, 1945. It was not held that the motion was barred by the six months limitation of Rule 60(b) and apparently it was not since no judgment had been entered. No excuse for the delay having been shown, however, but merely the appellant's dissatisfaction with his former attorneys as to whom there was no proof whatever of inattention to their duty to their client, or of incompetence, or of fraud, the court found that good cause had not been made to appear and denied the motion because of the long and unexplained delay in making it. He pointed out that the appellant might "apply to the court under Rule 55(b) (2) for a judgment in conformity with his original and still effective, bill of particulars." The appellant then moved "for a hearing in damages in order that the Court may enter judgment in conformance with Rule 55(b) (2) of the Rules of Civil Procedure, for the District Court of the United States."

At this hearing the court permitted the appellant to testify that his contract of employment to the appellee was for a workweek of 48 hours but later on motion struck out this testimony. Following that, the attorney for the appellant was heard at considerable length in his effort to obtain a reversal of that ruling in order to secure an assessment of the overtime compensation upon the basis of a regular 48 hour workweek instead upon irregular hours in accordance with the bill of particulars on file. The judge declined to reconsider and gave his reasons as follows:

"We'll adhere to my decision. It is not necessary for me to rule on your claims of law, because it appears to me that your claims of law are not predicated upon the proof of fact, or claim of fact which are disclosed in the pleading. It appears to me that the evidence received and then stricken is in substantial conflict with the Plaintiff's earlier allegations of fact and claims of fact which gave dimension to this controversy.

"Now, under the Federal Rules it is true that any inadvertence in the proof may be corrected at any time prior to judgment, but as to my earlier ruling, your earlier motions indicate this is not a case of inadvertence on the part of the Plaintiff. The Bill of Particulars which was submitted as a document, full of meticulous details, has all the earmarks of having been very carefully and thoughtfully prepared, and the Plaintiff's present testimony appears to me to be an effort to circumvent and obviate the effect of the earlier pleading.

"One of the chief objectives of the Federal Rules is expeditious litigation. If, after the Plaintiff brings his own case, in response to an adverse motion, and after deliberation makes his representations to the Court on that basis, and therefore decides whether he wants to make the mental change on the basis of his claims under the Federal Rule, ...