Walling v. Harnischfeger Corporation
| Decision Date | 09 April 1957 |
| Docket Number | No. 11869.,11869. |
| Citation | 242 F.2d 712 |
| Parties | L. Metcalfe WALLING, Administrator of the Wage & Hour Division, etc., Plaintiff-Appellee, v. HARNISCHFEGER CORPORATION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Victor M. Harding, T. W. Korb, Milwaukee, Wis., for appellant.
Stuart Rothman, Solicitor U. S. Department of Labor, Bessie Margolin, Asst. Solicitor, U. S. Department of Labor, Washington, D. C., Herman Grant, Regional Attorney, U. S. Department of Labor, Sylvia S. Ellison, Irving J. Alter, Attorneys, United States Department of Labor, Washington, D. C., for appellee.
Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
Walling v. Harnischfeger Corporation, D.C.Wis.1943, 54 F.Supp. 326, 327, resulted in a judgment for the government and permanently enjoining the same defendant corporation now before us from violating the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The reversal of that case by this court, reported as Walling v. Harnischfeger Corporation, 7 Cir., 1944, 145 F.2d 589, failed to survive review by the Supreme Court and in Walling v. Harnischfeger Corp., 1945, 325 U.S. 427, 65 S.Ct. 1246, 89 L.Ed. 1711, the judgment of the district court was reinstated and affirmed.
Roughly twelve years later Harnischfeger sought to have the district court vacate the judgment and dissolve the injunction, entered on February 5, 1944, under Rules 60(b) (5) and (6), Rules of Civil Procedure, 28 U.S.C. This appeal is from a final order refusing to dissolve that injunction.
The motion, denied below, put forward two prongs for dissolving the basic injunction, that: (1) "defendant has fully complied with the terms, * * * and with all of the provisions of the Fair Labor Standards Act * * *" and, (2) "It is no longer equitable that the * * * judgment order have prospective application * * *." The affidavits were filed by Harnischfeger Corporation in support of its motion and the government produced a counter-affidavit.
By its reply brief defendant tells us its "case rests squarely upon the decisions of the 4th and 8th Circuits in" Tobin v. Alma Mills, 1951, 192 F.2d 133, and Tobin v. Little Rock Packing Co., 1953, 202 F.2d 234. On the other hand the district judge and the government rely upon United States v. Swift & Co., 1932, 286 U.S. 106, 52 S.Ct. 460, 76 L. Ed. 999, and Western Union Telegraph Co. v. International Brotherhood of Electrical Workers, 7 Cir., 1943, 133 F.2d 955. But all this goes further, for Harnischfeger speaking through counsel in its brief states: ...
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...& Co., supra, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999; Walling v. Harnischfeger Corporation, D.C.Wis., 142 F.Supp. 202, affirmed 7 Cir., 242 F.2d 712; John E. Smith's Sons Co. v. Lattimer Foundry & Machine Co., 3 Cir., 239 F.2d 815; Federal Deposit Ins. Corp. v. Alker, 3 Cir., 234 F.2d 113......
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...demonstrates the effectiveness of the injunction. It does not show its purpose has been fulfilled. As stated by Walling v. Harnischfeger Corp., 242 F.2d 712, 713 (7th Cir. 1957), "we would not approve trading * * * sustained obedience for a dissolution of the injunction. Compliance is what ......
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U.S. v. Gregg, CIV. A. 97-2020 (JCL).
...A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure, § 2961 at 405 (1995); see also Walling v. Harnischfeger Corp., 242 F.2d 712, 713 (7th Cir.1957) (refusing to dissolve permanent injunction solely on the basis of defendants' compliance; finding that "[c]ompliance is......
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