Sinclair v. United States Gypsum Co., Civil Action No. 3370.

• Decision Date: 27 January 1948
• Docket Number: Civil Action No. 3370.
• Parties: SINCLAIR et al. v. UNITED STATES GYPSUM CO.
• Court: U.S. District Court — Western District of New York

75 F. Supp. 439

SINCLAIR et al. v. UNITED STATES GYPSUM CO.

Civil Action No. 3370.

District Court, W. D. New York.

January 27, 1948.

William L. Clay, of Rochester, N. Y., for plaintiffs.

Scott, MacLeish & Falk, of Chicago, Ill., and Nixon, Hargrave, Middleton & Devans, of Rochester, N. Y. (Harold D. Burgess and Arlindo S. Cate, both of Chicago, Ill., and Casper V. Baltensperger, of Rochester, N. Y., of counsel), for defendant.

KNIGHT, District Judge.

This suit is what has become to be known as a "Portal-to-Portal" suit, purporting to have been brought under the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The complaint was filed on January 20, 1947. Issue has not been joined.

The defendant moves for dismissal upon various grounds and for certain alternative relief, if the motion to dismiss is denied.

In so far as the right of the plaintiffs to maintain this action under the provisions of the Fair Labor Standards Act, as the pleading now stands, my decision in Holland v. General Motors Corporation, D.C., 1947, 75 F.Supp. 274, is applicable. In my opinion every point raised by plaintiffs in their able briefs have been answered in the Holland opinion. Maintaining the opinion there expressed, it would necessarily follow that a dismissal of this suit must be granted on grounds raised by the motion that the complaint fails to state a claim compensable under section 2 subdivs. (a) and (b) of the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 252 (a, b), and that this court lacks jurisdiction under section 2(d) of said Portal Act, subject, however, to the right to the plaintiffs to amend to state a cause of action under said Portal Act.

However, various other grounds for dismissal are urged by the defendant which have not heretofore been considered by this court in comparable cases and which relate to the sufficiency of the pleadings apart from any question of the constitutionality of the Portal-to-Portal Act. These should be considered since plaintiffs, if they so desire, should be permitted to amend to meet the conditions of this decision in the respects herein directed. If an amended pleading meets the terms of this decision and, also, the requirements of the Portal-to-Portal Act, this must be met by an answer, if issue is to be joined. It is not sufficient to say that the complaint does not meet the provisions of the Portal-to-Portal Act and for that reason dismiss.

The complaint when examined in its entirety is indefinite and a motion under Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, would lie. This is one of the grounds for this motion. But it is believed that the court should go further and point out some of the particulars in which it is indefinite and indicate respects in which it is not "a * * * plain statement of the grounds upon which the court's jurisdiction depends." Rule 8 of the Federal Rules of Civil Procedure.

The complaint contains only two named plaintiffs, Sinclair and Ralyea, as administratrix. Plaintiffs in their brief assert that there are only these two plaintiffs. The opening paragraph of the complaint contains the allegation that "The plaintiffs bring this action individually and for and on behalf of all employees of the defendant similarly situated." (Italics by the court) No one has sought to intervene as a plaintiff. The plaintiffs seemingly have abandoned any interest in any employee "similarly situated." The clause quoted does not say "similarly interested with themselves." "Similarly interested" could and might normally be construed as applying only to the employees other than the plaintiffs. The pleading must be a "plain statement." Rule 8 (a) (2) The complaint repeatedly thereafter refers to "employees of the defendant." Nowhere does it specifically refer to the plaintiffs as among such "employees." At least there is not a plain statement.

Class actions have been defined as "hybrid," or "spurious" or "true class actions." The necessity for "class" actions has long been recognized. Moore's Federal Practice, Vol. 2, p. 2241. This suit as presented comes within none of the types of class actions mentioned, save it might be termed "spurious." Pentland v. Dravo Corporation, 3 Cir., 152 F.2d 851. Rule 23 of the Federal Rules of Civil Procedure says that a representative or class action can be brought "if persons constituting a class are so numerous as to make it impracticable to bring them all before the court." The purpose is apparent. No statement of the number of "employees" appears, save the plaintiffs are called such. Four, five or six "employees" could hardly be called "numerous" in number. There is no showing of the consent of any employee "similarly situated" to the bringing of the action.

The complaint cannot be sustained on the theory that this is a joint action brought under Section 16 of the Fair Labor Standards Act, Sec. 216, 29 U.S.C.A., because if either plaintiff has a cause of action, each is a separate one. Such being the case, the jurisdiction of the court is not shown, because damages are claimed in the amount of only $6,000 for both plaintiffs. One claim may be in an amount less than $3,000.

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