Wirtz v. WG Lockhart Construction Co.

• Decision Date: 21 May 1964
• Docket Number: Civ. A. No. C 63-631.
• Citation: 230 F. Supp. 823
• Parties: W. Willard WIRTZ, Secretary of Labor, Plaintiff, v. W. G. LOCKHART CONSTRUCTION CO. and Thomas Richard Lockhart and Alexander Robert Lockhart, Defendants.
• Court: U.S. District Court — Northern District of Ohio

230 F. Supp. 823

W. Willard WIRTZ, Secretary of Labor, Plaintiff, v. W. G. LOCKHART CONSTRUCTION CO. and Thomas Richard Lockhart and Alexander Robert Lockhart, Defendants.

Civ. A. No. C 63-631.

United States District Court N. D. Ohio, E. D.

May 21, 1964.

Frank Berndt, United States Dept. of Labor, Cleveland, Ohio, for plaintiff.

L. Andrew Reed, Jr., of Buckingham, Doolittle & Burroughs, Akron, Ohio, for defendants.

CONNELL, Chief Judge.

On August 8, 1963, Plaintiff, the Secretary of Labor, filed his complaint seeking to enjoin defendants, W. G. Lockhart Construction Co., and Thomas Richard Lockhart and Alexander Robert Lockhart, from violating the provisions of Sections 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq.), hereinafter referred to as the Act, and for such other and further relief as may be necessary and appropriate, including the restraint of any withholding of payment of overtime compensation due under the Act. The action is specifically authorized by Section 17 of the Act.

The complaint alleges that defendants employ a total of approximately thirty-five employees in and about their place of business in Akron, Ohio in the construction, repair and maintenance of roads, highways, and sewers as well as in the construction, repair and maintenance of parking lots, driveways and loading docks of firms which produce goods for interstate commerce. In paragraph IV of the complaint it is alleged that defendants' said employees were and are engaged in interstate commerce and in activities closely related and directly essential to the production of goods for interstate commerce. In paragraph V of the complaint it is alleged that defendants employed during the period subsequent to April 20, 1961 many of their employees so engaged as identified and alleged in paragraph IV, for workweeks longer than forty (40) hours without compensating these employees for their employment in excess of forty (40) hours, at rates not less than one and one-half times the regular rate at which they were employed as a result of which a total of thirty-eight thousand, eighty-two dollars and five cents ($38,082.05) is unpaid overtime compensation has been and is being withheld by defendants from these employees.

In paragraph VI the authority of the Administrator's record-keeping regulations is set forth. Paragraph VII alleges specific violations issued thereunder in that the defendants failed since April 20, 1961 to make, keep and preserve adequate records of many of their employees with respect to wages, hours and other conditions and practices of employment, including hours worked each workday and each workweek.

Paragraph VII further identifies the period of time, to wit, since August 20, 1961, that the defendants have violated all of the aforesaid specific provisions of the Fair Labor Standards Act. Further this paragraph contains plaintiff's prayer for relief seeking a judgment of injunction permanently restraining defendants from violating the provisions of the pertinent sections of the Fair Labor Standards Act and for such further relief as may be necessary and appropriate, including the restraint of any withholding of payment of overtime compensation due under the Act.

On October 22, 1963 plaintiff filed his amended complaint which is a verbatim copy of the original complaint filed on August 8, 1963 except that Paragraph V is amended to identify by name, period of employment and amount of back wages found due, the thirty-five (35) employees previously designated in Paragraph IV of the original complaint.

The corporate defendant only, W. C. Lockhart Construction Co., now moves the Court to dismiss that portion of the complaint seeking to enjoin said corporate defendant from withholding back wages claimed to be due prior to October 22, 1961 on the ground that the two year statute of limitations here applicable, Section 6 of the Portal to Portal Act of 1947 (61 Stat. 84, 29 U.S.C. 251 et seq.), was not tolled until October 22, 1963, the time of the filing of the amended complaint in which the names of the employees for whom back wages are claimed were specifically mentioned, on the ground that said statute of limitations is not tolled until employees are so named in the pleadings. The corporate defendant further moves the Court to dismiss that portion of the complaint seeking to enjoin the defendant from withholding wages claimed for periods prior to September 3, 1961 on the ground that Section 17 of the Act under which jurisdiction was conferred upon the plaintiff to bring this action did not become effective until September 3, 1961.

The Court holds that both of the defendant's contentions are erroneous and that the motion to dismiss should be denied. The two year statute of limitations was tolled on the date the original complaint was filed in that the allegations of the original complaint were sufficient to toll said statute under Rule 8(a) (2) of the Federal Rules of Civil Procedure and even if it were considered necessary to specifically list the names of employees in order to toll the statute, the employees were in fact named in the amended complaint which under Rule 15(c) of the Federal Rules of Civil Procedure relates back to the date of the original pleading thus tolling the statute on that date. Nor is there any justification in law for defendant's second contention and motion for dismissal of the claims for back wages which accrued prior to the effective date of Section 17 of the Act under which plaintiff brought the present action, for this 1961 Amendment to the Act created merely a new remedy and not a new right and, of course, there is no inhibition against the retroactive enforcement of a new remedy to preserve an old or existing right, in this case the existing right being the employee's statutory right to receive time and one-half his regular rate for hours worked in excess of forty per week. For these reasons defendant's motions to dismiss should be denied.

I

Plaintiff's original complaint sets forth a claim for relief drawn in accordance with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure that it contains a "short and plain" statement of the grounds upon which the Court's jurisdiction rests and a "short and plain" statement of the claim showing that the pleader is entitled to relief, and finally, a statement of the relief required. It is also drawn in accordance with Rule 8(e) that "each averment of a pleading shall be simple, concise, and direct." A glance at the summary of plaintiff's original complaint amply shows that plaintiff has in fact met the requirements of Rule 8. Furthermore, the defendant has not attacked the sufficiency of the plaintiff's complaint in its first motion otherwise than as it affects the tolling of the statute of limitations. In this regard plaintiff submits, and we agree, that he has sufficiently identified the employees in the original complaint by fixing their number, thirty-five, period during which they were employed, type of work performed and gross amounts of back wages found due to amply satisfy the requirements of Rule 8 in stating a claim upon which relief can be granted so as to toll the statute of limitations on the date of the filing of said complaint.

Defendant contends that the two year statute of limitations applicable to wage suits brought under the Fair Labor Standards Act of 1938, as amended, is not tolled unless and until the names of the employees in question are mentioned in the complaint. In support of this position, defendant cites three cases which were brought under Section 16(c) of the Act.¹ Defendant contends that this principle of tolling the statute only upon the date that the names of the employees are listed in the complaint itself is likewise applicable to the present injunctive suit brought under Section 17 of the Act by the Secretary of Labor. Plaintiff agrees that the statute is so tolled in actions brought, in the classical sense, at law, as under Section 16 (c) of the Act, because the language of the Act itself specifies that such a requirement be met, but plaintiff denies that this principle is applicable to injunctive suits brought by the Secretary of Labor under Section 17 of the Act wherein there is no such tolling language in the statute. Furthermore, an analysis of these two distinctive statutory remedies will make manifest that the tolling of the statute of limitations in a Section 17 action is not, and should not be, dependent upon the mere listing of employee names in the complaint.

A remedy to collect unpaid wages due an employee may be had either in the nature of an action at law or as one in equity under the Fair Labor Standards Act of 1938, as amended. Sections 16(b) and (c) embrace the two non-equitable type remedies available to employees. Section 16(b) permits an employee to engage private counsel and to bring an action for the back wages in question, and he is entitled to recover in addition to these wages an equal amount as liquidated damages plus attorneys fees and costs. On the other hand, the employee also has the option of requesting the Secretary of Labor to institute suit on his behalf to collect the unpaid wages under Section 16(c) of the Act when no unsettled issues of law are involved. If such a choice is made no liquidated damages are awarded and, of course, there is no attorney's fee. Jurisdiction for the Secretary to bring such an action is dependent upon his receiving from the employee a written request to file such an action and such written request, of course, waives the employee's right thereafter to bring a 16(b) action and to attempt to gain the liquidated damages provided for in that section of the Act. In addition, Section 16(c) also provides that in

"* * * determining when an action is commenced by the Secretary under this subsection for the purposes of the two-year statute of

...