Ispass v. Pyramid Motor Freight Corporation

• Decision Date: 25 March 1946
• Docket Number: No. 89.,89.
• Parties: ISPASS et al. v. PYRAMID MOTOR FREIGHT CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

152 F.2d 619 (1945)

ISPASS et al. v. PYRAMID MOTOR FREIGHT CORPORATION.

No. 89.

Circuit Court of Appeals, Second Circuit.

December 28, 1945.

Writ of Certiorari Granted March 25, 1946.

Leon E. Spielvogel, of New York City (Ramey & McKelvey, of New York City, of counsel), for appellants.

Charles E. Cotterill, of New York City, for appellee.

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

Writ of Certiorari Granted March 25, 1946. See 66 S.Ct. 818.

SWAN, Circuit Judge.

This is an action under § 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), to recover unpaid overtime compensation, liquidated damages and attorney's fees. It was commenced in the City Court of the City of New York, was removed by the defendant to the District Court, and was tried to the court without a jury upon an agreed statement of facts. The plaintiffs are employees of the defendant, a common carrier by motor truck of interstate freight, and the issues framed for trial were whether they were within the coverage of section 7 of the Act, 29 U.S.C. A. § 207, or were exempted therefrom by section 13(b) (1), 29 U.S.C.A. § 213(b) (1), as employees "with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49." Because of doubt on the basis of the agreed facts whether the plaintiffs were subject to the jurisdiction of the Interstate Commerce Commission, the trial judge was of the opinion that decision should be held in abeyance in order that they might have an opportunity to apply to the Commission to fix their status. Ispass v. Pyramid Motor Freight Corp., D.C., 54 F.Supp. 565. Thereafter the plaintiffs moved for a final disposition of the case, and the trial judge, treating the motion as an election not to apply to the Commission or to present further pleadings or proof, entered an order dismissing the complaint. 59 F.Supp. 341. From this judgment the plaintiffs have appealed.

Before passing to the merits we consider the appellee's motion to dismiss the appeal. The judgment was entered February 19, 1945. Notice of appeal was duly filed March 29th, but nothing was done to docket the appeal in this court and file the record therein, or to obtain an extension of time from either the District Court or this court until July 20th, when an order was obtained from a judge of this court extending the appellant's time to file the record on appeal until September 1, 1945. On that date the record and the appellants' brief were filed. A motion by the appellee to dismiss the appeal was denied from the bench in October and is now renewed. It is urged that under Rule 73(g) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c only the District Court possesses jurisdiction to extend the time to docket an appeal and file the record on appeal. But Rule 73(a) provides that a party may appeal by filing with the District Court a notice of appeal and that failure of the appellant to take further steps "does not affect the validity of the appeal, but is ground * * * for such action as the appellate court deems appropriate, which may include dismissal of the appeal." Hence the jurisdiction of the appellate court attaches at the time of filing the notice of appeal and whether a dilatory appellant shall be allowed to proceed is a matter within its discretion. Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83; Mutual Benefit Health & Accident Ass'n v. Snyder, 6 Cir., 109 F.2d 469; Burke v. Canfield, 72 App.D.C. 127, 111 F.2d 526. In the case at bar there was no abuse of discretion in extending the time, despite the somewhat feeble excuses for delay, since the appeal presents a substantial question as to the correctness of the judgment. The motion to dismiss is denied.

In construing section 304(a) (1) and (2) of Title 49 U.S.C.A. the Supreme Court has limited the regulatory power of the Commission to those employees whose activities affect the safety of operation of motor vehicles. United States v. American Trucking Ass'ns, 310 U.S. 534, 553, 60 S.Ct. 1059, 84 L.Ed. 1345. But it is the existence, not the exercise, of the power that determines their exemption under section 213(b) (1) of Title 29. Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244. In Maximum Hours of Service of Motor Carrier Employees, 28 M.C.C. 125, the Commission ruled that "loaders" and "helpers", as well as drivers, of motor trucks are subject to its jurisdiction, because the way a truck is loaded affects the safety of its operation. The appellants contend that their activities bring them within this ruling. We must therefore consider the evidence, bearing in mind that the burden of proof is upon the defendant to show which, if any, of its employees are within the exemption. Helliwell v. Haberman, 2 Cir., 140 F.2d 833, 834; Walling v. Comet Carriers, 2 Cir., 151 F.2d 107, 110; cf. Stratton v. Farmers Produce Co., 8 Cir., 134 F.2d 825, 827.

Laying aside for the moment the case of the plaintiff Shapiro, the agreed statement as to the other plaintiffs is to the following effect: The defendant maintains a main terminal on West 11th Street and a sub-terminal on West 38th Street for the convenience of its customers in the Garment Center of New York City. In the case of north-bound (i. e., incoming) trucks,...