Opinion
Nos. 653, 654.
November 27, 1945.
James R. Morford and Thomas Cooch, both of Wilmington, Del. (of Marvel Morford), of Wilmington, Del., for plaintiff.
Francis A. Reardon, Asst. U.S. Atty., of Wilmington, Del., for defendants.
Actions by H. Wilton Tobin against Hercules Powder Company, a Delaware corporation, and Dravo Corporation, a Pennsylvania Corporation, to recover wages, liquidated damages and attorney's fees under the Fair Labor Standards Act. On defendants' motions the cases were removed to the federal court, wherein the plaintiff moved to remove to the state court.
Plaintiff's motion granted.
Plaintiff filed suit against defendants in the Superior Court of the State of Delaware for wages, liquidated damages and attorney's fees under Section 16(b) of the Fair Labor Standards Act 1938, 52 Stat. 1069, 29 U.S.C.A. § 216(b). The amount in controversy is less than $3,000. In one case there is diversity of citizenship; in the other there is not. On defendants' motion the cases were removed here. Plaintiff now moves to remand to the state court.
Since all the arguments and contentions made are applicable to both cases, the opinion will not differentiate between the defendants.
Section 16(b) of the Fair Labor Standards Act provides that employee wage suits "may be maintained in any court of competent jurisdiction * * *." Sec. 24(8) of the Judicial Code provides that regardless of diversity of citizenship or the sum in controversy the district courts shall have jurisdiction over "all suits * * * arising under any law regulating commerce." 36 Stat. 1092, 28 U.S.C.A. § 41(8). Sec. 28 of the Judicial Code provides that "Any suit of a civil nature * * * arising under the Constitution or laws of the United States * * * of which the district courts of the United States are given original jurisdiction * * * may be removed by the defendant * * * to the district court of the United States * * *." 36 Stat. 1094, 28 U.S.C.A. § 71.
Plaintiff argues that although federal courts may have concurrent jurisdiction, Sec. 16(b) prohibits removal of such employee's suit from the state court once it has been commenced there. Defendants, on the other hand, contend that since there is concurrent jurisdiction, the case may be removed to the federal court under the Removal Act and, moreover, there is no evidence in the congressional debates to justify the contention that Sec. 16(b) was intended to restrict the scope of the Removal Act.
The right of removal in these cases has been subject to much contrariety of judicial opinion. Owens v. Greenville News-Piedmont, D.C., 43 F. Supp. 785; McGarrigle v. 11 W. 42nd St. Corp., D.C., 48 F. Supp. 710; Sonnesyn v. Federal Cartridge Co., D.C., 54 F. Supp. 29, take the view that removal is proper, whereas Phillips v. Pucci, D.C., 43 F. Supp. 253; Booth v. Montgomery Ward Co., D.C., 44 F. Supp. 451; Garner v. Mengel Co., D.C., 50 F. Supp. 794; Brantley v. Augustus Ice Coal Co., D.C., 52 F. Supp. 158; Sheridan v. Leitner et al., D.C., 59 F. Supp. 1011; Wingate v. General Auto Parts Co., D.C., 40 F. Supp. 364, hold that there was a congressional intent to restrict by Sec. 16(b) of the Fair Labor Standards Act the scope of the Removal Act. After much inner debate, I have concluded to accept the second group of cases.
This conflict can not be authoritatively resolved because an order of a district court remanding a removal action to the state court has finality and is not subject to review. 28 U.S.C.A. § 71.
Although it is settled that removal jurisdiction exists where both federal and state courts have concurrent original jurisdiction, the language in Sec. 16(b) of the Fair Labor Standards Act, providing that the action might be "maintained in any court of competent jurisdiction", shows a congressional intent to afford employees the obvious advantages of settling small claims in local tribunals. If the Fair Labor Standards Act confers removal jurisdiction on the federal courts, then it gives us in everyday practice exclusive jurisdiction at the option of the employer. This, in effect, would emasculate the right to maintain the action "in any court of competent jurisdiction". Since the Fair Labor Standards Act is obviously concerned primarily with employee welfare, to give substantial meaning to "any court of competent jurisdiction" requires the conclusion that Sec. 16(b) was intended to restrict the scope of the Removal Act. Plaintiff's motion to remand is accordingly granted.