Walling v. Fairmont Creamery Co.

Decision Date02 December 1943
Docket NumberNo. 12571.,12571.
Citation139 F.2d 318
PartiesWALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor, v. FAIRMONT CREAMERY CO.
CourtU.S. Court of Appeals — Eighth Circuit

Hugh McCloskey, Atty., U. S. Department of Labor, of Washington, D.C. (Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., and Kenneth P. Montgomery, Regional Atty., of Chicago, Ill., on the brief), for appellant.

Leonard A. Flansburg, of Lincoln, Neb. (Charles H. Flansburg, of Lincoln, Neb., and M. S. Hartman, of Omaha, Neb., on the brief), for appellee.

Before SANBORN and RIDDICK, Circuit Judges, and DELEHANT, District Judge.

RIDDICK, Circuit Judge.

The administrator of the Wage and Hour Division of the Department of Labor brought this action to enjoin The Fairmont Creamery Company, a corporation, from violating the provisions of Section 15(a) (1), 15(a) (2), and 15(a) (5) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Proceedings in the district court terminated in a summary judgment in favor of the creamery company and the administrator has appealed.

In the complaint the administrator charged that the company, a Delaware corporation maintaining places of business in Nebraska and six other States, was engaged in the production for commerce and in the sale and distribution in commerce of dairy products, including butter, milk, cream, and ice cream, and in the production for and distribution in commerce of poultry products, frozen and fresh fruits and vegetables, flour, sugar, and cheese, and in the activities and processes necessary to these operations. It was alleged that the company had, from the effective date of the act, paid many of its employees less than the minimum wage required by Section 6 of the act; had failed to pay many of its employees for overtime one and one half times the regular wages at which they were employed, in violation of Section 7 of the act; had sold and transported in interstate commerce goods produced by employees employed at wages prohibited by the act; and had failed to keep, as required by the regulations of the administrator, adequate records of its employees, their hours of work, wages, and conditions of employment, and had caused inaccurate entries to be made in its records, contrary to Section 11(c) of the act. In each of the instances mentioned the administrator charged that the company had violated and was violating the relevant provision of Section 15 of the act.

On the ground that the allegations of the complaint were so vague and general that it was unable to determine what specific violations of the act the administrator intended to charge, and, for that reason, was unable to plead to or defend the action, the company asked and was granted a bill of particulars over the strenuous objections of the administrator. In response to the order for a more particular statement, the administrator set out details concerning the employment of 125 employees, stating, however, in the bill that the particulars submitted were intended to be representative of other violations of the act of which the company was guilty, and reserving the right to submit proof of other violations after issue had been joined. The administrator alleged that the company had, from the effective date of the act, violated its provisions with reference to minimum wages, overtime, and the keeping of records in the cases of all of the 125 employees named in the bill of particulars, and that with reference to 51 of the named employees the violations were still continuing. The dates of the beginning and end of the period of noncompliance for each employee named were set out. In each instance it appeared that the period of noncompliance ended before the original complaint was filed. The court struck out of the bill the administrator's attempted reservation of the right to prove at the trial violations of the act with respect to employees not named in the bill, but reserved to the administrator the right to amend his complaint for that purpose. No amendments were offered. The administrator stipulated that no attempt would be made by him to enjoin shipments in interstate commerce. The court ordered that no evidence of such shipments would be received at the trial, and the issue on that point disappeared from the case.

At this stage in the proceeding the company presented a motion to dismiss the complaint as amended by the bill of particulars on the ground that it did not state a claim upon which relief could be granted. Before any action of the court on the motion to dismiss, the company moved for a summary judgment. Both parties filed affidavits. The grounds advanced for this motion were that the complaint as amended charged only past violations of the act, of which the most recent had occurred several months prior to the bringing of the suit, and that it conclusively appeared from the pleadings and the affidavits filed by the parties on the motion that the violations charged, if they occurred, were not willful but resulted from the difficulty of interpreting the act and applying it to the company's business; that there was no probability of recurring violations of the act on the part of the company; that the company had entered upon full compliance with the act; and that many of the company's employees were exempt from the provisions of the act with reference to the payment of overtime wages.

The case was submitted to the court on the motion to dismiss and the motion for summary judgment. The court found (1) that the violations of the Fair Labor Standards Act charged in the complaint as amended, if they occurred, were not willful, but were caused by the difficulty of interpreting the act with respect to the company's business; (2) that there was no probability of other or future violations of the act upon the part of the company; (3) that beginning in 1940 (prior to the bringing of the suit) the company adopted the policy of placing all of its employees under the Fair Labor Standards Act; (4) that the company had at all times honestly endeavored to comply with the law; and (5) that great numbers of the company's employees were clearly exempt from the act. The court construed the complaint to charge only past violations of the act, and to show that the most recent of the alleged violations occurred, if at all, approximately four months prior to the bringing of the suit, and others, years before the bringing of the suit. The court concluded that an order enjoining the company as to future violations would be "unwarranted and would serve no function or purpose." On these findings and conclusions it was ordered "that the motion of the defendant to dismiss the complaint, and defendant's motion for summary judgment, be sustained, and judgment for the defendant entered accordingly." The administrator assigns error (1) in granting the motion for a bill of particulars, (2) in sustaining the motion to dismiss, and (3) in granting the summary judgment in favor of the defendant company.

There is no merit in the first assignment of error. A bill of particulars, if necessary to enable a party to prepare a responsive pleading or to prepare for trial, is expressly authorized by Rule 12(e) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Orders granting or refusing bills of particulars, in the absence of a showing of an abuse of the court's discretion, will not be reviewed on appeal. Harper v. Harper, 4 Cir., 252 F. 39; Alaska Steamship Company v. Katzeek, 9 Cir., 16 F.2d 210. The district courts in actions for injunctions under the Fair Labor Standards Act have allowed bills of particulars in cases involving complaints in all essentials like the one in the present case. Compare Fleming v. Mason & Dixon Lines, Inc., D.C., 42 F.Supp. 230; Fleming v. Cleveland Union Terminals Company, D.C., 36 F.Supp. 781; Fleming v. Enterprise Box Company, D.C., 36 F.Supp. 606; Fleming v. Southern Kraft Corporation, D.C., 37 F.Supp. 232; Fleming v. Dierks Lumber & Coal Company, D.C., 39 F.Supp. 237. In the present case the complaint disclosed on its face that the company, with several thousand employees, was engaged at numerous points in seven states in operations in which employees are, on certain conditions, exempt from some of the provisions of the Fair Labor Standards Act. See Section 7(c) of the Act, 29 U.S.C.A. § 207(c). Moreover, it is difficult to see that the allowance of a bill of particulars, even if improper, could constitute reversible error.

If the court by its judgment in this case intended to hold that the complaint as amended by the bill of particulars did not state a claim upon which the relief sought could be granted, because only past violations of the act were alleged, we can not agree. For, conceding without deciding that the court's construction of the complaint was correct, there remained for decision the question of whether an injunction should issue, restraining the continuance or recurrence of the same or related violations, a question which could not be decided except upon evidence...

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