Wimberly v. Clark Controller Company

• Decision Date: 03 August 1966
• Docket Number: No. 16539.,16539.
• Citation: 364 F.2d 225
• Parties: Virtle WIMBERLY et al., Plaintiffs-Appellants, v. CLARK CONTROLLER COMPANY, and A. O. Smith Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

364 F.2d 225 (1966)

Virtle WIMBERLY et al., Plaintiffs-Appellants, v. CLARK CONTROLLER COMPANY, and A. O. Smith Corporation, Defendants-Appellees.

No. 16539.

United States Court of Appeals Sixth Circuit.

August 3, 1966.

Donald J. Guittar, Cleveland, Ohio (Lawrence Landskroner, Cleveland, Ohio, on the brief), for appellants.

James I. Poole, Milwaukee, Wis. (Herbert P. Wiedemann, Milwaukee, Wis., Joseph A. Rotolo, Cleveland, Ohio, on the brief); Foley, Sammond & Lardner, Milwaukee, Wis., Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, James N. Johnson, Milwaukee, Wis., of counsel, for appellees.

Before EDWARDS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This action was instituted by Plaintiffs-Appellants, hereinafter referred to as Plaintiffs, against Defendants-Appellees, hereinafter referred to as Defendants, under the provisions of Section 301 et seq. of the National Labor-Management Relations Act of 1947, as amended, 29 U.S.C. Section 185 et seq., 61 Stat. 156. The action sought legal and equitable relief, including damages, due to wrongful subcontracting, and also for wrongful plant shut down and removal of part of Defendant's Cleveland operations to Lancaster, South Carolina. Plaintiffs appeal to this Court from the granting of a motion to dismiss by the District Court.

The pertinent facts are as follows: Defendant Clark Controller Company, operated two manufacturing plants in Cleveland, Ohio. Local 19, Mechanics Educational Society of America, has represented the hourly-rated factory employees of the Cleveland plants since 1945. Clark and the Union executed a collective bargaining agreement, effective from October 1, 1961 through September 30, 1964. In February, 1964, Clark notified its employees and the Union that economic reasons forced Clark to move in July the Woodland Avenue plant and certain operations at the 152nd Street plant to Lancaster, South Carolina. As a result of this transfer, some 128 employees, including Plaintiffs, have been laid off from both plants. In 1963, Defendant, A. O. Smith Corporation acquired the controlling stock interest in Clark. Smith did not employ the Plaintiffs, nor was Smith a party to any contract between Clark and the Union. Clark remained a separate corporation.

In September, 1964, Plaintiffs filed two grievances protesting their lay-offs, and one grievance protesting the subcontracting out of work.

In October, 1964, Plaintiffs, as individuals, brought this action against the Defendants. Plaintiffs allege that Defendants violated the collective bargaining agreement by closing the Woodland Avenue plant, and removing part of its Cleveland operations to Lancaster, South Carolina. Plaintiffs also allege that the Defendants violated the collective bargaining agreement by subcontracting out work.

On November 16, 1964, Defendants filed a motion to dismiss the action with affidavits and exhibits attached thereto. On December 24, 1964, Plaintiffs filed a motion to strike the affidavits and exhibits of the Defendants. On the same day, Plaintiffs filed a brief in opposition to the Defendants' motion to dismiss. No opposing affidavits were filed by the Plaintiffs. The District Court entered an order granting the motion to dismiss. No ruling was made by the Court on Plaintiffs' motion to strike.

Plaintiffs allege as error the omission of the District Court to specifically rule on Plaintiffs' motion to strike affidavits and exhibits attached to Defendants' motion to dismiss. Plaintiffs rely on Greenwood v. Greenwood, 234 F.2d 276 (C.A.3, 1956).

While it is certainly the better practice to specifically rule on all pending motions, the determination of a motion need not always be expressed but may be implied by an entry of an order inconsistent with granting the relief sought. Mosier v. Federal Reserve Bank, 132 F.2d 710 (C.A.2, 1942); Agostino v. Ellamar Packing Co., Inc., 191 F.2d 576, 13 Alaska 34 (C.A.9, 1951); 35A C.J.S., Federal Civil Procedure § 374, Determination or Disposition of Motions. A contrary result was reached in Greenwood v. Greenwood, supra. These cases involve the time for perfecting an appeal. In that context, it may well be that ambiguity resulting from a failure to specifically rule on pending motions may leave in doubt the time from which an appeal may be perfected. This question need not be resolved here for no prejudice was shown to result from the Court's failure to overrule the Plaintiffs' motion to strike the affidavits attached to the Defendants' motion to dismiss.

The affidavits were filed with the motion to dismiss pursuant to Rule 12(b), Federal Rules of Civil Procedure.¹ Approximately one month later the Plaintiffs filed a brief in opposition to the Defendants' motion to dismiss. At the same time Plaintiffs filed a motion to strike the affidavits and exhibits of the Defendants. The Plaintiffs, pursuant to Rule 12(b) had a reasonable opportunity to file opposing affidavits. One month after the motion to dismiss, accompanied by affidavits, was filed, Plaintiffs filed an opposition brief, but did not file counter affidavits.

The motion to strike the affidavits was filed pursuant to Rule 12 (f), Federal Rules of Civil Procedure. This rule specifically relates to matters to be stricken from pleadings but does not make provision for testing the legal sufficiency of affidavits by a motion to strike. At best, the motion to strike raised an issue as to the admissibility of the evidence offered in the affidavit, and the competency of the affiant to testify to the matters stated therein. These issues are present in every instance where affidavits are filed pursuant to Rule 56. The Court has discretion to disregard those facts which would not be admissible in evidence, and to rely on those facts which are competent evidence.

The only fact in the affidavits relied upon by the District Court was the fact that the Defendant and the Union entered into an agreement, the provisions of which "constitute the full terms and conditions" as to employees displaced by the Woodland Avenue plant relocation. This was certainly relevant and competent evidence.

However, the fact that the Defendant and the Plaintiffs' bargaining representative entered into an agreement with respect to seniority, lay-offs, severance pay, pensions, and vacations for employees who would be displaced by the plant relocation was not the basis for the District Court's decision in granting the motion to dismiss. From the facts alleged in the complaint, the District Court held as a matter of law that the complaint...