Sonnesyn v. Federal Cartridge Co., Civil Action No. 1036.

• Decision Date: 14 February 1944
• Docket Number: Civil Action No. 1036.
• Citation: 54 F. Supp. 29
• Parties: SONNESYN v. FEDERAL CARTRIDGE CO.
• Court: U.S. District Court — District of Minnesota

54 F. Supp. 29

SONNESYN v. FEDERAL CARTRIDGE CO.

Civil Action No. 1036.

District Court, D. Minnesota, Fourth Division.

February 14, 1944.

Edward A. Danforth (of Fowler, Youngquist, Furber, Taney & Johnson), of Minneapolis, Minn., for plaintiff.

George C. Stiles and Henry F. Simons, both of Minneapolis, Minn., and Bert E. Church, Major, J.A.G.D., Litigation Officer, Seventh Service Command, of Kansas City, Mo., for defendant.

JOYCE, District Judge.

Plaintiff's motion to remand came on for hearing on December 13, 1943. Arguments were had, and the court by order entered on said date overruled the motion. This memorandum is filed in explanation of such action.

This suit, originally filed in the District Court of Hennepin County, Minnesota, Fourth Judicial District, seeks recovery under the Fair Labor Standards Act of 1938 of the sum of $1,451.07 alleged overtime compensation, the further sum of $1,451.07 as liquidated damages, a reasonable attorney's fee, and costs of the action.

Removal of this proceeding was taken to this court upon the grounds, that the action is a suit arising under a law regulating commerce, to-wit: the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. A. §§ 201 to 219; that the suit is one over which the District Courts of the United States are given original jurisdiction, regardless of amount involved, as an action arising under a law regulating commerce, 28 U.S.C.A. § 41(8). Further, that since the plaintiff is suing for $2,902.14, plus a reasonable attorney's fee, which it is believed would be not less than $100, the actual amount involved, exclusive of interest and costs, is in excess of $3,000.

Title 28 U.S.C.A. § 71, enumerates the types of cases removable from state courts to the United States district courts. Such section provides:

"Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, of 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. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district."

It will be noted from the above quotation that for a case to be removable to the United States district court, it is necessary only that the following two elements be present:

1. That said suit arises under the laws of the United States (or that the defendant or defendants be nonresidents of the State); and

2. That said suit be one of which the United States district courts are given original jurisdiction.

Title 28 U.S.C.A. § 41, provides in part:

"The district courts shall have original jurisdiction as follows:

"(1) United States as plaintiff; civil suits at common law or in equity. * * * 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. * * *

"(8) Suits under interstate commerce laws. Eighth. Of all suits and proceedings arising under any law regulating commerce."

In determining the amount in controversy for jurisdictional purposes, it has been frequently held that the attorney's fee may properly be aggregated with the principal sum, such attorney's fee not being "interest" or "costs" within the meaning of the Federal Removal Act. See Springstead v. Crawfordsville State Bank, 231 U.S. 541, 34 S.Ct. 195, 58 L.Ed. 354; Missouri State Life Ins. Co. et al. v. Jones Adm'r, 290 U.S. 199, 54 S.Ct. 133, 78 L.Ed. 267; Nathan v. Rock Springs Distilling Co., 6 Cir., 10 F.2d 268; Wilson v. Alliance Life Ins. Co., 5 Cir., 108 F.2d 150; Merrigan v. Metropolitan Life Ins. Co., D.C.E. D.Louisiana, 43 F.Supp. 209; Prudential Ins. Co. of America v. Carlson, 10 Cir., 126 F.2d 607.

It seems, however, that under 28 U.S.C.A. § 41(8), supra, the provision of the Removal Act as to sum or value of the matter in controversy has no application to suits and proceedings arising under any law regulating commerce, such as the instant case.

The authorities are numerous which hold that the United States district courts have original jurisdiction of suits arising under the Fair Labor Standards Act of 1938, notwithstanding the fact that the amount involved is less than $3,000, and notwithstanding the fact that there exists no diversity of citizenship. See Robertson v. Argus Hosiery Mills, 6 Cir., 121 F.2d 285; Campbell v. Superior Decalcominia Co., Inc., D.C.N.D. Texas, 31 F. Supp. 663; Townsend et al. v. Boston & M. R. R. (Townsend v. Palmer et al.), D.C.D. Mass., 35 F.Supp. 938; Martin v. Lain Oil & Gas Co., D.C.E.D Illinois, 36 F.Supp. 252; Lefevers v. General Export Iron & Metal Co., D.C.S.D. Texas, 36 F. Supp. 838; Missel v. Overnight Motor Transp. Co., Inc., D.C.D. Maryland, 36 F. Supp. 980.

The wording in Section 41, above quoted, which gives the United States district courts original jurisdiction of suits of this nature, to-wit: Of all suits and proceedings "arising under any law regulating commerce," is identical with the phraseology of Section 71, upon which the defendants rely as giving them grounds for removal. Section 71 provides that any suits "arising under the Constitution or laws of the United States", and of which the United States district courts have original jurisdiction, are removable. So that it would seem to follow that if actions under the Fair Labor Standards Act of 1938 are suits arising under a federal law for the purpose of conferring original jurisdiction, they are likewise suits arising under federal law for the purpose of removal.

While the authorities upon this proposition are in conflict, nevertheless I feel that those which hold that suits under the Fair Labor Standards Act are removable, regardless of citizenship, are the better reasoned ones and should be followed. The authorities holding to the contrary almost universally hold that no cases under the Fair Labor Standards Act are removable regardless of amount, or diversity of citizenship. The effect of such decisions, it would seem, is to hold that the Fair Labor Standards Act repealed, by implication, all of the provisions of the code upon removal of actions to the United States district courts.

Among other authorities holding that Fair Labor Standards Act cases are removable, the court in Ricciardi v. Lazzara Baking Corporation, D.C.D.N.J., 32 F.Supp. 956, 957, said:

"The plaintiff seeks to recover the sum of $119.83 for overtime, said amount being figured on the basis of one and a half times his regular hourly rate and the like sum as damages, together with a counsel fee of $75. The suit is based on alleged violations of the Wage and Hour Act, 52 Stat. 1060, 29 U.S.C.A., § 201 et seq., wherein it is specifically provided that `action to recover such liability may be maintained in any court of competent jurisdiction * * *.' 29 U.S.C.A. § 216. It is conceded by counsel that a federal question is involved, that it relates to interstate commerce, and were it not for the above language of the Act and a question of estoppel, the removal would be valid. It is further conceded that as between this court and the local or city district court, there is concurrent jurisdiction.

"In urging a remand, counsel takes the position that the above quoted language of the statute vested jurisdiction in the local court without subjecting the case to removal. In other words the local court having first taken jurisdiction holds the case against any other court of concurrent jurisdiction. This rule, however, can not be given such a broad construction. It is settled, for example, that when bankruptcy supervenes, all courts save only the bankruptcy court are stayed and may not proceed against the bankrupt. So here, if it appeared that the defendant had been adjudicated a bankrupt, it could not successfully be contended that the local court could proceed with the trial. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645. Certainly the language of the statute in question can not be so broadly construed as to amount to an amendment to the Bankruptcy Act, 11 U.S. C.A., § 1 et seq., and by the same token it can not be held to limit or amend the provisions of the Removal Act. Counsel stresses the dictionary meaning of the word `maintained' as connoting `to hold possession of — to keep effectively,' and the like, but reference to the word in Corpus Juris 38 p. 336, furnishes definitions in reported cases holding that `maintained' is synonymous with `commenced.' In fact so many different and conflicting constructions appear to have been given to the word, according to the citations in Corpus Juris, that its character for exactitude of meaning is badly damaged. It would be indeed dangerous to conclude that a word so weakened could be used to amend the Removal Act and to do so would be to enter the legislative sphere. If Congress had intended to prevent the removal of causes arising under the Wage and Hour law, it would have used language more pertinent to that end."

In Mengel Co. v. Ishee, 192 Miss. 366, 4 So.2d 878, 879, the court said in part:

"There being concurrent jurisdiction of the State and Federal courts, under the last Federal statute copied above, the defendant may remove it to the...