Owens v. Greenville News-Piedmont

• Decision Date: 01 April 1942
• Parties: OWENS v. GREENVILLE NEWS-PIEDMONT.
• Court: U.S. District Court — District of South Carolina

43 F. Supp. 785

OWENS v. GREENVILLE NEWS-PIEDMONT.

C. A. 306.

District Court, W. D. South Carolina, Greenville Division.

April 1, 1942.

W. D. Workman and W. B. McGowan, both of Greenville, S. C., for plaintiff.

Wyche, Burgess & Wofford, of Greenville, S. C., for defendant.

WYCHE, District Judge.

This case is before me upon motion of the plaintiff to remand the case to the Greenville County Court from which Court it was removed upon petition and bond for removal duly filed by the defendant.

The complaint alleges that the action is to recover unpaid overtime compensation and liquidated damages pursuant to Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b); that the defendant at the times mentioned in the complaint was engaged in interstate commerce; that included in its business operations the defendant publishes a daily newspaper known as The Greenville News, which contains news items transmitted and communicated to it at Greenville, within the State of South Carolina, from points outside the State of South Carolina, and maps, cartoons, photographs, cross-word puzzles, and similar matter produced for interstate commerce and sold, offered for transportation, shipment and delivery in interstate commerce from various points outside the State of South Carolina to Greenville, within the State of South Carolina; that the defendant produces a daily newspaper for interstate commerce and sells, offers for transportation, shipment and delivery and does sell, ship, transport, and deliver said The Greenville News from Greenville, in the State of South Carolina, to points outside the State of South Carolina. Plaintiff further alleges that he is entitled to certain overtime wages on account of work performed in interstate commerce while working for the defendant.

The plaintiff in this action claims that the case is not removable upon the grounds, (1) that the Act confers jurisdiction specifically upon the State Court and the Federal Court and that the plaintiff has a choice of jurisdiction; (2) that the amount involved is less than Three Thousand ($3,000) Dollars, and there is no diversity of citizenship; (3) that the action does not arise under the Constitution or laws of the United States.

Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216, reads as follows: "Any employer who violates the provisions of section 6 206 or section 7 207 of this Act title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

The solution of the question involved in the motion depends upon a correct construction and interpretation of the words "action to recover such liability may be maintained in any Court of competent jurisdiction" as contained in the above section taken together with the provisions in the Judicial Code relating to original jurisdiction of United States District Courts and removal from the State Courts.

A careful examination of the language of the Fair Labor Standards Act of 1938 discloses that the Congress of the United States intended to confer jurisdiction upon both the State and the Federal Courts in actions under this statute. This is not an unusual situation under our form of government. In fact, in order to remove any case from the State Court to the United States District Court, it is necessary in the first instance that the State Court shall also have jurisdiction of the case. If the State Court has no jurisdiction, then the case can not be removed to the Federal Court and if it be held that the State Court did not have jurisdiction, the case should be dismissed. Therefore, the fact that the Congress of the United States has seen fit to confer jurisdiction upon any Court of "competent jurisdiction" is no reason to hold that it was its intention to give exclusive jurisdiction to either Court, nor to repeal or modify any part of the removal statute. The Act merely provides that the plaintiff may proceed in the first instance in the State Court or the Federal Court but there is no suggestion anywhere in the Act that it was intended to deny the defendant the right to remove the case from the State Court to the Federal Court.

Much confusion has arisen in the construction of the removal statute because of failure to distinguish between Section 41(1) and Section 41(8) of Title 28 U.S.C. A. Section 41(1) provides that the District Courts of the United States shall have original jurisdiction "where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects. * * * The foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section." (Italics added)

One of the succeeding paragraphs is Section 41(8), which provides: That the District Courts of the United States shall have original jurisdiction "Of all suits and proceedings arising under any law regulating commerce."

The removal statute, 28 U.S.C.A. § 71, provides in part as follows: "Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State."

It will be observed that there are three situations in which the United States district courts may have original jurisdiction of an action brought under the Fair Labor Standards Act, (1) where the suit arises under the laws of the United States, and the matter in controversy exceeds the sum or value of $3,000, 28 U.S.C.A. § 41(1) (a); (2) where there is diversity of citizenship and the amount in controversy exceeds the sum or value of $3,000, 28 U.S.C.A. § 41(1) (b); and (3) where the suit arises under a law regulating commerce, 28 U.S.C.A. § 41(8). The amount involved in this controversy does not exceed the sum or value of $3,000. Therefore, in this case, the district court of the United States is not given original jurisdiction under Section 41(1), but it is given original jurisdiction under Section 41(8), where it is provided that the district courts shall have original jurisdiction as follows: "Of all suits and proceedings arising under any law regulating commerce."

Section 41(8) confers original jurisdiction upon the United States district courts regardless of diversity of citizenship or the amount involved. This has been repeatedly determined by the United States Supreme Court and was so determined as late as the case of Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 651, 83 L.Ed. 1092. The Mulford case arose under the AAA Act of 1938, 7 U.S.C.A. § 1281, and dealt with the provisions of tobacco marketing. In that case the Supreme Court of the United States said: "Before coming to the merits we inquire whether the court below had jurisdiction as a federal court or as a court of equity. Though no diversity of citizenship is alleged, nor is any amount in controversy asserted so as to confer jurisdiction under subsection (1) of section 24 of the Judicial Code 28 U.S.C.A. Section 41 (1), the case falls within subsection (8) which confers jurisdiction upon District Courts `of all suits and proceedings arising under any law regulating commerce.'"

A well considered District Court opinion along this line is that of Campbell v. Superior Decalcominia Co., Inc., 31 F.Supp. 663. In that case the plaintiff brought his suit originally in the United States District Court for a sum less then $3,000, and there was no diversity of citizenship. The District Judge held that the United States District Court clearly had jurisdiction to try the case under the terms of the Fair Labor Standards Act and Section 41(8) above referred to, regardless of the value in controversy or citizenship of the parties.

See also People of Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70.

The Fair Labor Standards Act at the very outset states that it is enacted under the commerce clause of the Constitution. Section 2(b) of the Act, 29 U.S. C.A. § 202(b), provides in part: "It is hereby declared to be the policy of this act sections 201-209 of this title through the exercise by Congress of its power to regulate commerce among the several States, to correct and as rapidly as practicable to eliminate the conditions," etc.

The provisions throughout are an attempt to regulate commerce. Not only does the Act itself show that it is a law regulating commerce but the very complaint of the plaintiff...