Twelve named plaintiffs, on January 9, 1947, filed a complaint, as employees of defendant, for alleged violations by defendant of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The complaint stated that the plaintiffs sued on behalf of themselves and other employees of defendant similarly situated. On January 24, an amended complaint was filed, to which was annexed a Schedule A containing the names of 4089 additional persons on whose behalf the action was said to have been commenced. By stipulation dated March 11, 1947 (and approved by the District Court on April 4, 1947), twenty-one other parties-plaintiffs were added.
On June 23, 1947, on defendant's motion, made pursuant to Rule 12(e), Federal Rules of Civil Procedure, 28 U.S.C.A., and before defendant had answered, the district court entered an order containing these two provisions: (1) The complaint should be deemed dismissed as to all persons named in Schedule A who did not, on or before September 10, 1947, either intervene as party plaintiff, or who were not named as party plaintiff in a second amended complaint, or who did not file with the clerk written authority designating one of the plaintiffs as agent on his behalf. (2) On or before November 25, 1947, there should be filed either a second amended complaint or a schedule or schedules stating, as to each party plaintiff, (a) the full name and time clock number or address of each such party, (b) the period of employment for which compensation is claimed, (c) each position occupied for which compensation is claimed, (d) each activity, in detail, for which compensation is claimed, and (e) whether each such party claims that his or her regular rate of compensation was incorrectly computed and, if so, the correct basis of computation thereof. The order provided that the schedule or schedules should be deemed to be part of the amended complaint previously filed. On September 10, 1947, a second amended complaint was filed naming 897 plaintiffs.
On September 20, 1947, plaintiffs moved for examination of defendant's officers before trial; an affidavit in support of this motion stated that its purpose was to obtain the information to be used in complying with provision (2) of the June 23, 1947 order, because this information was peculiarly within defendant's knowledge and because the plaintiffs had no records enabling them to answer the items of that provision. On November 17, 1947, the district court denied this motion in an order which stated, "it is Ordered that said motion be, and hereby is, denied without prejudice to the right of the plaintiffs to make a motion for such examination after the defendant has served its answer, and it it is further Ordered, that the plaintiffs supply the defendant with as much information covered by the Order * * * dated June 23, 1947, as lies within their knowledge, and specifically state under oath that they have no knowledge or information sufficient to comply with the remainder thereof."
Subsequently, by a stipulation dated November 17, 1947 (and approved by the district court on November 24), the time to comply with provision (2) of the June 23 order was extended to January 2, 1948.
On December 30, 1947, plaintiffs served on defendant a notice that they would move on January 7, 1948, for an order granting leave to additional persons to intervene as plaintiffs, in accordance with a proposed amended complaint attached to the notice of motion; this notice and the attached proposed amended complaint were filed with the court clerk on January 2, 1948. Paragraph Twelfth of this proposed amended complaint reads: "Plaintiffs are not informed as to the exact amount of overtime rendered by each of them, for which they have not been paid by defendant, or the wages still due and owing for overtime hours worked, for which no payment was made in accordance with the provisions of the Fair Labor Standards Act. Such information is not available to the plaintiffs herein. Under the provisions of said Act, the records disclosing such information are, or should be, in the possession and under the control of the defendant; and plaintiffs are excluded from access thereto."
On January 5, 1948, the district court entered an order directing plaintiffs to show cause why the suit should not be dismissed. The basis of this order was plaintiffs' failure to comply with the second provision of the order of June 23, 1947. On January 29, 1948, the district court denied plaintiffs' motion of December 30, 1947, except as to certain additional parties named in a stipulation of December 10, 1947.
On February 4, 1948, the district court filed an opinion, on defendant's motion to dismiss, reading as follows: "After consideration of the memoranda filed in accordance with the foregoing, it seems to me that this motion must be disposed of strictly according to the question which it raises entirely apart from the pleading filed January 2, 1948. In another connection additional parties plaintiff have been admitted in accordance with the terms of the stipulation, but that has nothing to do with the motion. The sole question now decided is whether the second amended complaint served September 10, 1947, complied with the order of June 23, 1947 — I am of the opinion that it does not. Motion granted, settle order." On February 7, 1948, plaintiffs served a notice that on February 9 it would present a proposed order granting plaintiffs ten days to file a schedule complying with provision (2) of the June 23, 1947 order. On February 9, 1948, the district court entered a judgment dismissing the action for failure to comply with that provision.
FRANK, Circuit Judge.
We shall assume, arguendo, the propriety, under Rule 12(e) as it then stood, of the requirements of the second provision of the order of June 23, 1947. We shall also similarly assume that the district court, by its order of November 12, 1947, properly denied plaintiffs' motion for examination before trial. Even so, that order modified the earlier order with the result that plaintiffs were not required to supply the information if not within their knowledge. The proposed amended complaint attached to the notice of motion of December 30, 1947, stated in effect that defendants had no such knowledge except as to one item, i.e., "the full name and time clock number or address of each" plaintiff. The district court should have considered that statement when defendant moved for dismissal of the suit. Plaintiff's failure to supply the information as to the names and clock numbers was not so substantial a noncompliance as to justify the harsh remedy of dismissing the suit, especially as the second provision of the order of June 23, 1947, did not state — as did the first provision of that order — that dismissal would be the consequence of noncompliance.
But see Barrett v. National Malleable Steel Castings Co., D.C., 68 F. Supp. 410, 417; Walling v. Staffen, D.C., 5 F.R.D. 236, 240; Dykema v. Aluminum Co., D.C., 7 F.R.D. 230; Walling v. Bay State Dredging Contracting Co., D.C., 3 F.R.D. 241, 242.
The defendant did not move to dismiss the action on the ground that plaintiffs had not amended to meet the new conditions imposed by the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq., nor did the district court base its judgment on that ground. Even assuming that dismissal on that ground would have been proper as to the entire complaint as amended (a matter we do not consider), such a judgment should have been conditioned on failure appropriately to amend.
See Battaglia v. General Motors Corp., 2 Cir., 169 F.2d 254.
Any such amendment should now be permitted.
We shall therefore reverse and remand. As the proceedings will now be governed by amended Rule 12(e), which eliminates all right to a bill of particulars, the second provision of the order of November 23, 1947, will be a nullity. We think that any of the information of that kind, which defendant desires, it should obtain under other Rules authorizing discovery.
Cf. Galdi v. Jones, 2 Cir., 141 F.2d 984, 992.
Reversed and remanded.
Comments