Fleming v. Dierks Lumber & Coal Co.

• Decision Date: 10 June 1941
• Docket Number: Civ. No. 40.
• Citation: 39 F. Supp. 237
• Parties: FLEMING, Administrator, Wage and Hour Division, United States Department of Labor, v. DIERKS LUMBER & COAL CO.
• Court: U.S. District Court — Western District of Arkansas

39 F. Supp. 237

FLEMING, Administrator, Wage and Hour Division, United States Department of Labor, v. DIERKS LUMBER & COAL CO.

Civ. No. 40.

District Court, W. D. Arkansas, Hot Springs Division.

June 10, 1941.

COPYRIGHT MATERIAL OMITTED

Gerard D. Reilly, Sol., and Irving J. Levy, Asst. Sol., both of Washington, D. C., and Llewellyn B. Duke, Regional Atty., and Harry Campbell, Jr., Asst. Atty., both of Dallas, Tex., United States Department of Labor (Vernon C. Stoneman, of Washington, D. C., of counsel), for plaintiff.

Scott Wood and E. H. Wootton, both of Hot Springs, Ark., and Chas. E. Whittaker, of Kansas City, Mo., for defendant.

MILLER, District Judge.

Plaintiff filed his complaint on April 7, 1941; summons was served on defendant on April 12, 1941, and on May 1, 1941, defendant filed its motion for a more definite statement or a bill of particulars. The complaint was filed under the provisions of Section 17 of the Fair Labor Standards Act of 1938, approved June 25, 1938, 52 Stat., 1060, 29 U.S.C.A. § 201 et seq., to enjoin the defendant from violating the provisions of Section 15(a) (1), 15(a) (2), 15 (a) (3), 15(a) (5) of the Act.

The motion points out the defects in the complaint complained of and the details desired in strict accordance with the terms of Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

There are certain well-established principles which apply generally to motions under Rule 12(e). In the case of Louisiana Farmers' Protective Union, Inc., v. Great Atlantic & Pacific Tea Company of America, Inc., et al., D.C., 31 F.Supp. 483, Judge Lemley of the Eastern and Western Districts of Arkansas collated the authorities sustaining these principles.

(1) The granting or refusal of a motion for a bill of particulars rests in the sound discretion of the court.

(2) Matters of evidence which a party will presumably introduce as establishing his case shall not be elicited or required by a motion for a bill of particulars.

(3) Ordinarily a bill of particulars will not be ordered as to matters that are peculiarly within the knowledge of the moving party.

(4) The scope of a bill of particulars should ordinarily be limited to such matters as are required to enable the moving party to prepare his responsive pleading and generally to prepare for trial.

Rule 8(a) (2) provides that the plaintiff shall make "a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled".

In Moore's Federal Procedure, Volume 1, page 553, it is said:

"What constituted good craftsmanship in pleading before the rules will continue to constitute good craftsmanship, but in ruling on the sufficiency of a pleading that is on the border-line, the court should consider:

"(1) At what stage of the action is the objection raised?

"(2) Are the prima facie elements of the claim or defense stated?

"(3) If these are stated, is the statement fair notice to the adverse party?

"(4) Is it feasible to require more particularity?

"The Court should not feel bound by restrictive decisions to what constitutes facts, evidence or conclusions of law."

If a plaintiff has complied with Rule 8 in drafting his complaint he should not be met with a motion under Rule 12(e). Such motions are properly presented when the complaint is so vague or ambiguous or contains such broad generalizations that the defendant cannot frame an answer thereto. Mere conciseness and brevity is not the test, although conciseness and brevity is the very object the rules seek to attain. I am of the opinion that the framers of the rules did not intend to permit a plaintiff to subject a defendant to the various processes of the court without first stating definite facts upon which a judgment might be based. Of course, verbosity, redundancy and the pleading of evidence should be avoided, but what constitutes "a short and plain statement" must be determined by the type of case, the relief sought, the situation of the parties and whether it is desirable in obtaining speedy justice, that the plaintiff state with particularity his alleged claim. Claims may be of such a nature as to require particularity in statement without redundancy or verbosity. In considering such a motion the court should not be restricted by the mass of decisions as to whether a particular allegation is one of fact, evidence or law. Moore's Federal Practice, 2 year Supp., Volume 1, page 106.

I do not think that Rules 26-37 relating to depositions and discovery should supplant the requirement of pleadings sufficiently advising a defendant of the nature of the claim and enabling him to prepare his responsive pleading and generally prepare for trial.

The principles hereinbefore referred to are helpful, but each case must necessarily stand upon its own bottom, and the court should require pleadings that will "secure the just, speedy, and inexpensive determination of every action". Rule 1.

"All pleadings shall be so construed as to do substantial justice." Rule 8(f).

In Hughes Federal Procedure, Vol. 17, Sec. 19621, it is said: "It would seem, therefore, that the court should adopt a liberal viewpoint in determining whether the pleading actually does contain "a short and plain statement of the claim" and should not require that the pleading contain ultimate facts only. This seems to be the trend of the recent decisions."

The rules should not be so liberally construed as to destroy definiteness in pleading. A "short and plain statement" must be reasonably definite or it will not be plain. A speedy and just and inexpensive trial cannot be had merely upon the filing of a notice of claim and then resorting to the expensive and indefinite procedure of discovery and depositions. After the issues are joined the rules relating to discovery and depositions may be invoked effectively and properly in aid of both parties and for the purpose of obtaining admissions that will simplify the trial and obviate delay and expense.

The prayer of the complaint is as follows: "Wherefore, cause having been shown, plaintiff demands judgment enjoining and restraining defendant, its officers, agents, servants, employees and attorneys, and all persons acting or claiming to act in its behalf or interest from violating the provisions of 15(a) (1), 15(a) (2), 15(a) (3), and 15(a) (5), of the Act, both permanently and during the pendency of this action, and such other and further relief as may be necessary and appropriate."

Section 17 of the Fair Labor Standards Act gives the District Courts of the United States jurisdiction, for cause shown, subject to the provisions of Act of October 15, 1914, 38 Stat. 737, 28 U.S.C.A. §§ 381-383 to restrain violations of Section 15.

Rule 65(d) provides: "Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."

This is substantially U.S.C.A. Title 28, Section 383.

Section 11(a) of the Fair Labor Standards Act, Title 29, U.S.C.A. § 211, gives the plaintiff, as Administrator, or his designated representatives, the authority to investigate and gather data regarding the wages, hours and other conditions and practices of employment in any industry subject to the act. He or his representatives may enter and inspect the places and records, may question the employees and do anything which he or his representatives may deem necessary or appropriate to determine whether any employer has violated any provisions of the act.

It is difficult to conceive of a broader grant of inquisitorial powers than are contained in that section, and I assume that the plaintiff has exercised those powers before filing complaint.

Section 11(c) of the Act provides that every employer subject to the provisions of the act, or of any order issued by the Administrator, "shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder."

The Administrator, acting under authority of the act, has issued and promulgated certain regulations. A copy of the regulations is attached to the complaint. These regulations consist of a printed document containing seven pages. The regulations specify with great particularity the contents of the records required to be kept, the form of the records, the place and period for keeping records and also contains a definition of terms used in the regulations. They are designated as Title 29, Chapter 5, Code of Federal Regulations, Part 516.

The complaint alleges that the defendant is engaged in operating a lumber camp in Garland County, Arkansas, in the production, sale and distribution of lumber in interstate commerce; that it employs approximately 635 employees in and about its place of business in Garland county; that approximately 119 employees are engaged in logging operations and in processes and occupations necessary to the logging operations; that from October 24, 1938, through October 23, 1939, the defendant employed many of its employees for workweeks longer than 44 hours, and failed and refused to compensate the employees for their employment in excess of 44 hours in such workweek at rates not less...