Stucker v. Roselle, 228.
| Decision Date | 25 February 1941 |
| Docket Number | No. 228.,228. |
| Parties | STUCKER v. ROSELLE. |
| Court | U.S. District Court — Western District of Kentucky |
Pierce, Duffy & Mix, of Louisville, Ky., for plaintiff.
Edward A. Dodd and Dodd & Dodd, all of Louisville, Ky., for defendant.
The plaintiff, Earl B. Stucker, brought this action on behalf of himself and all employees similarly situated against the defendant Tony F. Roselle, doing business in the name of Roselle the Hatter in Louisville, Kentucky, to recover wages in the sum of $936.94 claimed to be due under Section 7(a) of the Fair Labor Standards Act of 1938, Section 207(a), Title 29, U. S.C.A. The defendant has moved to dismiss the complaint.
In support of the motion the defendant contends that the Court does not have jurisdiction in the matter due to the fact that the amount involved does not exceed the sum of $3,000 exclusive of interest and cost as is required by Section 41(1), Title 28, U.S.C.A. The plaintiff's individual claim is less than the jurisdictional amount under this Section. It is also well settled that when several plaintiffs assert several and distinct demands in a single suit the amount involved in each separate controversy must be of the requisite amount and that such amounts can not be added together to satisfy the jurisdictional requirement. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001, and cases therein cited; Barr v. Rhodes, D.C.W.D. Ky., 35 F.Supp. 223. But Section 41(1), Title 28 U.S.C.A. further provides "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." One of the succeeding paragraphs, being Section 41(8), Title 28 U.S. C.A. gives the District Court original jurisdiction "of all suits and proceedings arising under any law regulating commerce." It has been repeatedly held that this provision confers jurisdiction, regardless of the amount involved. Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; 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. Accordingly, if the present suit is one which arises under a law regulating commerce, the District Court has jurisdiction. This question has been passed upon by a number of Courts, and it will be sufficient for this opinion to refer to them for a discussion of the question involved. The following decisions have held that a suit such as the present one, under the provisions of the National Fair Labor Standards Act is a proceeding arising under a law regulating commerce and that jurisdiction over it exists in the United States District Court irrespective of the amount involved. Campbell v. Superior Decalcominia Co., Inc., D.C.N.D.Tex., 31 F.Supp. 663; Fishman v. Marcouse, D.C.E.D.Pa., 32 F. Supp. 460; Lengel v. Newark Newsdealers Supply Co., D.C.N.J., 32 F.Supp. 567; Rogers v. Glazer, D.C.W.D.Mo., 32 F.Supp. 990; Townsend v. Boston & Maine R. R., D.C.Mass., 35 F.Supp. 938. On the other hand it was held that jurisdiction did not exist in the case of Robertson v. Argus Hosiery Mills, D.C.E.D.Tenn., 32 F.Supp. 19. The Fair Labor Standards Act of 1938 provides in Section 2(b), Section 202(b), Title 29 U.S.C.A.: "It is hereby declared to be the policy of this chapter, 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 above referred to in such industries without substantially curtailing employment or earning power."
The industries referred to are described in Section 2(a) of the Act as being "industries engaged in commerce or in the production of goods for commerce." We agree with the reasons set forth in the several opinions above referred to which hold that jurisdiction is conferred upon the District Court by the provisions of Section 41 (8), Title 28 U.S.C.A.
Defendant's next contention in support of his motion is that the plaintiff has no cause of action because of the exemptions from the application of the Act granted by Section 13(a) (2) of the Act, Section 213(a) (2), Title 29 U.S.C.A. This exemption provision provides that the sections dealing with minimum wages and maximum hours shall not apply with respect to "any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." Proof was heard respecting the business of the defendant in order that the Court might determine whether or not this exemption applied.
The defendant has been engaged in the hat cleaning business in Louisville for approximately 40 years. In addition to cleaning and reblocking hats for individuals who bring them to this place of business, he also carries on a mail order business both within and without the state, and for other establishments in large lots. His books showed the following facts about his business for the years 1937, 1938, and 1939:
Kind of business 1937 1938 1939
Intrastate wholesale ............. $1,132.01 $1,030.31 $1,298.15
Interstate wholesale ............. 5,887.22 5,667.60 5,914.30
_________ _________ _________
Total wholesale .................. 7,019.23 6,697.91 7,212.45
Intrastate retail ................ 23,065.46 22,942.62 18,949.64
Total business ................... 30,084.69 29,640.53 26,162.09
These figures show that the percentage of wholesale and retail business for each year was as follows:
1937 1938 1939
Wholesale 23.33% 22.58% 27.57%
Retail 76.67% 77.42% 72.43%
It also follows that the percentage of interstate business for each year was less than the wholesale percentage, as the total volume of wholesale business includes some intrastate business. Plaintiff's evidence showed that the defendant engaged in a substantial amount of wholesale business and interstate business with other business houses, large department stores, and army posts such as Fort Knox, Ky., and Fort Benjamin Harrison, Indiana, but furnished no figures as to the amount or percentage of each. He also attacked the correctness of the figures given by defendant by showing that cash transactions over the counter (classified by the defendant as retail sales) included some wholesale transactions. But his witness on this point stated her inability to give figures or percentages, while the defendant's evidence on this point was that 98% of the cash transactions were retail sales. This leaves the foregoing statistical tabulation unchanged to any material extent. Plaintiff's contention that it is materially incorrect is not sustained by his proof showing merely the possibility of error without proof of actual error.
The defendant is engaged in commerce and is subject to the provisions of the Act, even though the major portion of its business may be intrastate commerce. It is immaterial that only a relatively small proportion of the defendant's business is interstate commerce. Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453,...
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