Johnson v. Park City Consol. Mines Co., 5119.

• Decision Date: 03 October 1947
• Docket Number: No. 5119.,5119.
• Citation: 73 F. Supp. 852
• Parties: JOHNSON et al. v. PARK CITY CONSOL. MINES CO.
• Court: U.S. District Court — Eastern District of Missouri

73 F. Supp. 852

JOHNSON et al. v. PARK CITY CONSOL. MINES CO.

No. 5119.

District Court, E. D. Missouri, E. D.

October 3, 1947.

COPYRIGHT MATERIAL OMITTED

Bruner, Farabi, & Matuschka, Sylvan Bruner, Pete Farabi, Morris Matuschka and Barnes Griffith, all of Pittsburg, Kan., Wolf & Leary, Louis N. Wolf and Daniel J. Leary, all of Joplin, Mo., and Sidney L. Stone, of St. Louis, Mo., for plaintiffs.

Cobbs, Logan, Roos & Armstrong, George B. Logan, William H. Armstrong and J. Terrell Vaughan, all of St. Louis, Mo., for defendant.

HULEN, District Judge.

Plaintiffs filed this suit as representatives of certain of defendant's employees for overtime pay. The case of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 was decided by the Supreme Court of the United States June 10, 1946. This suit was filed December 31, 1946, and apparently is based on the ruling of the Supreme Court in the Mt. Clemens Pottery case. By agreement of counsel the cause has been continued from term to term in view of consideration by Congress of legislation suggested by the ruling of the Supreme Court in the Mt. Clemens Pottery case. Following the passage by Congress of amendments to the Fair Labor Standards Act of 1938, known as the "Portal-to-Portal Act" of 1947, H.R. 2157, approved May 14, 1947, 29 U.S.C.A. § 251 et seq., defendant filed a motion to dismiss on the ground that this Court is without jurisdiction by virtue of the Act of Congress. This motion is now before the Court for ruling.

A complaint should not be dismissed for failure to contain allegations which confer jurisdiction unless from the face of the complaint it appears to a certainty that plaintiff has not and cannot allege a case conferring jurisdiction on the Court. The complaint should be given a liberal interpretation.

The complaint seeks recovery under the "Fair Labor Standards Act", 29 U.S.C.A. § 201 et seq., and bases jurisdiction upon "28 U.S.C., Section 41(8) 28 U.S.C.A. § 41(8), which gives District Courts of the United States jurisdiction `of all suits and proceedings arising under any law regulating commerce' and upon Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C., Section 216(b) 29 U.S.C.A. § 216(b), herein referred to as `the Act'". The complaint alleges in detail the facts upon which the charge of violation of the Fair Labor Standards Act is predicated. Typical of such charges are subparagraphs (d) and (e) of section III of the complaint:

"(d) Defendant has, and at all times mentioned herein had, scheduled for each of the employees starting times and quitting times. The employees are, and at all times mentioned herein have been, required by defendant to be at their respective places of work at such starting times and to remain at work until such quitting times. To comply with these requirements of defendant and because of the nature of their work for the defendant it is, and at all times mentioned herein was, necessary for the employees to arrive at and enter into the premises of defendant and to remain thereon substantial periods of time before their scheduled starting times and after their scheduled quitting times.

"(e) The time necessarily spent as aforesaid by the employees upon the premises of defendant, both before the scheduled starting times and after their scheduled quitting times, was at all times herein mentioned, and now is, consumed in activities involving mental and physical exertion. These activities are under the defendant's control and for the benefit, convenience and necessity of defendant as follows:"

It is plain that plaintiffs' case is based on the Fair Labor Standards Act as it existed prior to the 1947 amendment and a case has been stated of the same character as was before the Supreme Court in the Mt. Clemens Pottery case. What was the effect of the amendment of the Fair Labor Standards Act of 1947 on plaintiffs' case? As we read the 1947 amendment to the Fair Labor Standards Act and that portion of it applying to the present controversy^*, this Court is without jurisdiction to enforce liability under the Fair Labor Standards Act of 1938 in any action for overtime compensation, except for activities which when performed were compensable either by the express provisions of a contract, written or oral, then in effect, or by custom or practice then in effect. The complaint pleads liability on behalf of the defendant for overtime compensation, but does not plead that the activities for which overtime compensation is sought were compensable at the time such activities were performed (1938 to date of filing of complaint), under either an express provision of a contract, written or unwritten, then in effect, or a custom or practice then in effect.

It is plaintiffs' position, as we read their brief, that (1) the "Portal-to-Portal Act" of 1947 is not applicable to this suit; (2) the jurisdictional defense raised by defendant is an affirmative defense which the defendant has the burden of establishing and can be determined only after the evidence in the case has been heard; (3) that to apply the Portal-to-Portal Act to the facts of this case would render the Act unconstitutional because it attempts to divest defendant's employees of previously vested property rights under an employment contract; and (4) plaintiff-employees render their services on the basis of the provisions of the Fair Labor Standards Act of 1938 and a written agreement specifically protecting them as to all rights to compensation under such law.

(1-2) We cannot agree with plaintiffs that the amendment to the Fair Labor Standards Act of 1947 does not apply to this suit. Under the allegations of the complaint it is precisely this character of litigation to which the 1947 amendment does apply. The complaint details the activities for which compensation is sought and sets forth the time as before and after the scheduled "starting times and after their scheduled quitting times" of defendant's employees. The services performed were "to change into work clothes and/or protective clothing, to obtain equipment and to make other necessary preparations for work and, to proceed to their respective places of work, all of which must be done prior to the scheduled starting times". The same procedure and the same activities are described as compensable "at the end of the work-day" and "during the lunch periods"; going to the premises "of the defendant for payment for their work and to await thereat for payment of wages * * * travel to and from premises of the defendant * * * for medical examinations * * * to await thereat for said medical examination". Had plaintiffs been content to rest the allegations of jurisdiction and claims for compensation solely on the allegation that the suit arises under "the Fair Labor Standards Act of 1938" as amended, and the defendant's employees, before suit was instituted, performed services in producing goods for interstate commerce compensable under the Fair Labor Standards Act, the pleading would doubtless have been sufficient to meet the requirement insofar as pleading a jurisdictional case is concerned under the Federal Rules of Civil Procedure^*, 28 U. S.C.A. following section 723c, but the complaint goes further and details the character of work performed by the complainants and in detailing such activities of the complainants sets forth facts that show this Court is without jurisdiction under the 1947 amendment to the Fair Labor Standards Act unless there was a contract or custom to pay for such activities. The position in which plaintiffs find themselves by virtue of their detailed pleading is similiar to that of a complaint which alleges an amount sufficient to confer jurisdiction in a diversity case but other allegations of the complaint qualify or detract from it in such measure that it cannot fairly be said that jurisdiction appears on the face of the complaint. Sparks v. England, 8 Cir., 113 F.2d 579. The Supreme Court announced the rule in Smith v. McCullough, 270 U.S. 456, 46 S.Ct. 338, 339, 70 L.Ed. 682 that "a plaintiff suing in a federal court, must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment". See 28 U.S.C.A. § 80.

(3) Plaintiffs' argument that to construe the amendment to the Fair Labor Standards Act of 1947 as applying to this case would render the amendment unconstitutional because it attempts to divest "these employees of previously vested property rights under an employment contract" fails to recognize that the jurisdiction of this Court is purely statutory. The right of a citizen to prosecute his cause in the United States District Court is not a right guaranteed by the Constitution. Plaintiffs' alleged cause of action was created by Congress in the passage of the Fair Labor Standards Act. Plaintiffs do not have, and do not claim to have, any rights against the defendant apart from the statute. The Act was brought into being by Congress and Congress might at any time revoke its terms or modify it in any way — certainly at least before benefits have been derived by plaintiffs from the complete exercise or acceptance of the statutory privilege by a judgment. The jurisdiction of District Courts, in a case of the character set forth in the complaint, has been withdrawn under the provisions of the 1947 amendment to the Fair Labor Standards Act subject to certain conditions. This, the Congress had a right to do. The question is not new. In Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 82, 67 L.Ed. 226, 24 A.L.R. 1077, the Supreme Court said: "Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the...