Lockwood v. Hercules Powder Co., 13800.

• Decision Date: 12 April 1949
• Docket Number: No. 13800.,13800.
• Citation: 172 F.2d 775
• Parties: LOCKWOOD v. HERCULES POWDER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F.2d 775 (1949)

LOCKWOOD v. HERCULES POWDER CO.

No. 13800.

United States Court of Appeals Eighth Circuit.

February 28, 1949.

As Amended on Denial of Rehearing April 12, 1949.

Fred J. Freel, of Kansas City, Mo. (Robert L. Robertson and Henry A. Riederer, both of Kansas City, Mo., on the brief), for appellant.

John G. Madden, of Kansas City, Mo. (Thurber W. Kelley, of Kansas City, Mo., and Richard B. Stevens, of Lawrence, Kan., on the brief), for appellee.

Before SANBORN, THOMAS and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by the plaintiff in the District Court from two orders. The first was an order dated February 16, 1948, sustaining in part defendant's motion to dismiss the complaint in part and to make the complaint more definite and certain. The second order dated May 12, 1948, overruled plaintiff's motion for a rehearing and to set aside the order of February 16, 1948. No answer has been filed by the defendant and no judgment has been entered or requested.

No motion to dismiss the appeal has been filed, but counsel for appellee suggest in their brief that the orders appealed from are not appealable orders. If an examination of the record sustains this suggestion this court is without jurisdiction, and it will be our duty to dismiss the appeal sua sponte. St. Luke's Hospital v. Melin, 8 Cir., 172 F.2d 532.

The action was commenced by the plaintiff as a representative action "on behalf of himself and others similarly situated" to recover overtime compensation, liquidated damages and attorney fees under section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b). The complaint was filed August 21, 1946, in which it was alleged that plaintiff and "others similarly situated" (but who were not named) were employees of the defendant at its manufacturing plant situated at or near De Soto, Kansas.

The defendant assailed the complaint by motion to dismiss, to strike portions of the complaint and for more definite statement. The motion to dismiss or to make the complaint more definite or certain was overruled and the motion to strike that part of the complaint seeking to recover for plaintiff's unnamed co-employees was sustained without prejudice to their rights to become parties to the action by any legal means.

On March 4, 1947, plaintiff filed a First Amended Complaint "on behalf of himself and others similarly situated", who were employed at defendant's plant in Kansas. In paragraph 8 of the complaint he alleged that he had been "specifically authorized to and does bring this action, not only for himself, but for the following named similarly situated parties", naming 215 alleged employees of the defendant at its Kansas plant, stating the "Occupation" and "Estimated under payment" of each.

Defendant thereupon moved to dismiss the amended complaint. Without a ruling upon the motion plaintiff with leave of court on September 9, 1947, filed a Second Amended Complaint, amplifying the allegations of the previously filed complaints. Meanwhile the Portal-to-Portal Act of 1947 had been approved on May 14, 1947. 29 U.S.C.A. § 251 et seq. Section 8, 29 U.S. C.A. § 257, of that act provides:

"Pending collective and representative actions: The statute of limitations prescribed in section 6(b) shall also be applicable (in the case of a collective or representative action commenced prior to the date of the enactment of this Act under the Fair Labor Standards Act of 1938, as amended) to an individual claimant who has not been specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after the date of the enactment of this Act. In the application of such statute of limitations such action shall be considered to have been commenced as to him when, and only when, his written consent to become a party plaintiff to the action is filed in the court in which the action was brought."

On October 3, 1947, defendant filed a motion to dismiss, to strike portions or require plaintiff to make more certain and definite the Second Amended Complaint. The motion alleged that no facts are alleged to support the averred conclusion that the action was brought by plaintiff on behalf of others similarly situated; and that the represented parties had not consented in writing to become plaintiffs, as provided in the Portal-to-Portal Act, supra.

The motion was sustained in part. The order struck the names and claims of all those on whose behalf plaintiff claimed to bring the action, except himself, and required him to set out his own claim more definitely.

On the merits, appellant contends that naming the "similarly situated parties" in the body of plaintiff's Second Amended Complaint prior to September 11, 1947 (the date when the statute of limitations became effective (Sec. 6 of the Portal-to-Portal Act)), was a compliance with the requirement of section 8, supra, and they could not, therefore, be required to file "written consents * * * in the court in which the action was brought", and that the Portal-to-Portal Act is unconstitutional. If, however, the orders appealed from are not appealable orders, we may not consider or decide the appeal on its merits. Audi Vision, Inc. v. RCA Mfg. Co., 2 Cir., 136 F.2d 621, 147 A.L.R. 574.

We think the orders appealed from are not appealable; that they are not final orders but were subject to revision by ...