Keen v. Mid-Continent Petroleum Corporation

• Decision Date: 11 January 1945
• Docket Number: Civil Action No. 131.
• Citation: 58 F. Supp. 915
• Parties: KEEN v. MID-CONTINENT PETROLEUM CORPORATION.
• Court: U.S. District Court — Northern District of Iowa

58 F. Supp. 915

KEEN v. MID-CONTINENT PETROLEUM CORPORATION.

Civil Action No. 131.

District Court, N. D. Iowa, Central Division.

January 11, 1945.

Leslie L. Boomhower and L. R. Boomhower, both of Mason City, Iowa, for plaintiff.

J. P. Greve, of Tulsa, Okl., for defendant.

Douglas B. Maggs, Sol., and Archibald Cox, Associate Sol., both of Washington, D. C., and Reid Williams, Regional Atty., of Kansas City, Mo., for Administrator of Wage and Hour Division, United States Department of Labor, amicus curiae.

GRAVEN, District Judge.

On alternative motions to dismiss and for summary judgment. The plaintiff in this action seeks recovery against the defendant under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The defendant first challenges the jurisdiction of the Court on the question of service. It appears that the defendant a Delaware corporation, has and is doing business in a number of states including Iowa. The residence of the plaintiff does not appear. It further appears that the defendant has and is doing business in that part of Iowa included in the Northern District of Iowa. It further appears that a portion of the services for which the plaintiff seeks recovery were rendered in this district. The defendant, as a foreign corporation, designated George Cosson of Des Moines, Iowa, as its agent for service in this state, and service of the summons and complaint in this action was made upon that agent at Des Moines, Iowa. The State of Iowa is divided into two Federal judicial districts, the Northern District of Iowa and the Southern District of Iowa. Des Moines, Iowa, is in the Southern District of Iowa.

The designation of George Cosson as agent for service was made under Chapter 386 of the 1939 Code of Iowa relating to permits of foreign corporations to do business in this state. Section 8421, subsection (6), of that Chapter requires, in order for a foreign corporation to secure a permit to do business in the State of Iowa, the corporation file:

"Certified copy of the resolution of the board of directors of said corporation giving name and address in Iowa of a resident agent on whom the service of original notice of civil suit in the courts of this state may be served."

The plaintiff and defendant have submitted written briefs and made oral arguments as to the validity of Rule 4(f) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following Section 723c, which provides in part as follows:

"Territorial Limits of Effective Service. All process other than a subpœna may be served anywhere within the territorial limits of the state in which the district court is held * * *."

It is believed that the situation in the instant case is such that the validity of Rule 4(f) is not involved. Under 28 U. S.C.A. § 112, it is provided that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." In the case of Neirbo Co. v. Bethlehem Corporation, 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, the United States Supreme Court held that the designation by a foreign corporation in conformity with a valid state statute and as a condition of doing business within it, of an agent upon whom service of process could be made constituted a waiver by such corporation of its rights under 28 U. S.C.A. § 112, and gave its effective consent to be sued in the federal courts of that state. The case just cited was a diversity of citizenship case. The instant case is not a diversity case. In the case of Dehne v. Hillman Investment Co., 3 Cir., 1940, 110 F.2d 456, the defendant a foreign corporation had designated an agent for service in Pennsylvania as a condition precedent to securing a permit to do business in that state. The corporation was sued on a non-diversity case in the federal district court for the Western District. The process was served upon the service agent at Harrisburg, Pennsylvania, in the Middle District of Pennsylvania. The Third Circuit Court of Appeals held that the defendant could be sued in the Western District under such designation. Accord, Ball v. Paramount Pictures, D.C.Pa., 1944, 57 F. Supp. 505. It is believed that the defendant in the instant case by its designation of an agent for service must be held to have consented to be sued in the Northern District of Iowa on the claim in the instant case. The defendant's motion to dismiss on the ground that service upon such agent in the Southern District of Iowa did not give this Court jurisdiction, is overruled.

The defendant also moves to dismiss on the ground that the complaint shows on its face that the services upon which recovery is asked were not of such a nature to be within the purview of the Fair Labor Standards Act. While it could be that the evidence at the trial might be such as to support the views of the defendant, yet it cannot be said that a reading of the complaint shows so clearly that the plaintiff's services were without the purview of the Act as to warrant this Court in summarily deciding that question against the plaintiff. The defendant's motion to dismiss or in the alternative for summary judgment upon the ground that the complaint shows that the services upon which the plaintiff bases his recovery were outside the purview of the Fair Labor Standards Act, is overruled.

The defendant further moves to dismiss or in the alternative for summary judgment upon the ground that the plaintiff's claim is barred by the statute of limitations. The Administrator of the Wage and Hour Division, United States Department of Labor, asked for and was given permission to file briefs on that question as amicus curiae.

The complaint shows that the services upon which plaintiff's claim is based, were rendered from October 24, 1938 (the date the Fair Labor Standards Act became effective), to July 15, 1941. This action was commenced October 5, 1944, or 3 years, 2 months and 20 days after the ending of plaintiff's services.

On March 19, 1943, the Iowa Legislature enacted Chapter 267 of the Laws of the 50th General Assembly, Section 1, which provides as follows:

"In all cases wherein a claim or cause of action has arisen or may arise pursuant to the provisions of any Federal statute wherein no period of limitation is prescribed, the holder of such claim or cause of action may commence action thereon within but not after a period of six months after March 1, 1943, if such claim or cause of action arose prior to March 1, 1943, or within but not later than six months after the accrual of such claim or cause of action if such claim or cause of action arose after March 1, 1943."

The parties do not seem to be in dispute but what it is the general rule that where a Federal statute provides for a right and Congress has not prescribed any period of limitation, that the valid applicable state statutes of limitations are to be applied. However, it is the vigorous claim of both the plaintiff and the amicus curiae that Chapter 267 referred to is invalid in that it violates the Constitution of the United States because (1) it discriminates against rights bestowed by Federal statutes fixing a shorter period of limitation for the assertion of such rights than is provided for the presentation of similar non-Federal claims; (2) it, in effect, prevents the enforcement of rights bestowed by an Act of Congress and is, therefore, in conflict with the supreme law of the land; and (3) it unreasonably shortens the time within which suits may be brought and thus denies due process of law to the plaintiff.

The parties have submitted extensive briefs and arguments as to the constitutionality of Chapter 267. The parties apparently are of the view that unless Chapter 267 is unconstitutional that the plaintiff cannot recover. The plaintiff, however, does raise one additional question later referred to. However, the constitutionality of Chapter 267 need only be considered and determined if that Chapter operates as a bar to plaintiff's claim. If that Chapter does not bar plaintiff's claim, then determination of its constitutionality is not necessary. There are a number of different Iowa statutes on the limitation of actions providing different periods of limitations depending upon the nature of the claim sought to be enforced.

It should be noted that there are a number of rights given under Federal statutes where Congress did not prescribe any period of limitation and which are governed by the applicable state statutes of limitations. Examples of these are: (1) Claims for treble damages under the antitrust laws. 15 U.S.C.A. § 15, see Chattanooga Foundry & Pipe Works v. City of Atlanta, 1906, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241. (2) Actions for deprivation of civil rights or for conspiracy to deprive persons of civil rights. 8 U.S.C.A. §§ 43, 47, see O'Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Mitchell v. Greenough, 9 Cir., 1938, 100 F.2d 184, certiorari denied 306 U.S. 659, 59 S.Ct. 788, 83 L.Ed. 1056. (3) Suits against stockholders of national banks. 12 U.S. C.A. § 64, see Pufahl v. Estate of Parks, 1936, 299 U.S. 217, 57 S.Ct. 151, 81 L.Ed. 133. (4) Actions arising out of copyright infringement. 17 U.S.C.A. § 25, see Brady v. Daly, 1899, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109. (5) Actions of trustees in bankruptcy under the Chandler Act, 11 U. S.C.A. § 1 et seq., see Tuffy v. Nichols, 2 Cir., 1941, 120 F.2d 906, certiorari denied 314 U.S. 660, 62 S.Ct. 113, 86 L.Ed. 528; Nairn v. McCarthy, 7 Cir., 1941, 120 F.2d 910.

Chapter 267 is a very interesting type of state statute since it is a state statute specifically prescribing a period of limitation for federal matters. What its...