Fleming v. Enterprise Box Co.

WALLER, District Judge.

The Court is of the opinion that the complaint as such alleges ultimate facts and is sufficient as a complaint, but that the complaint does not contain sufficient information to enable the defendant to prepare its defense. The complaint alleges that the defendant “failed to pay many employees the wages required by the act”, without stating the name of any employee, the number of employees, or the time within which the defendant failed to pay any employee. It does not allege that the defendant failed to pay all employees. The complaint alleges that the defendant worked “employees” overtime without paying time and a half as required of it, but it fails to allege the names of the employees or the time or times when they were worked overtime. The complaint alleges that the defendant falsified its records, but. it fails to say what records or in what particular, whether as to the time the employees were worked, or as to the amount received by the employees, or whether the record was falsified as to shipments to other states, or in what respect the said record was falsified. Counsel for the defendant strongly asserts that the defendant has no knowledge of any violation whatsoever of the act. If a foreman of the company had worked employees overtime without the knowledge of the officers of the defendant company; or it is conceivable that the information upon which the plaintiff has based his suit is untrue, then the question of the wages paid to any 'particular employee or the hours worked by him might easily become a question of fact. It is difficult to see, however, how the defendant could prepare its cas'e for trial without the more definite information called for by the motion for bill of particulars, and as called for by Rule 12(e).

The Court does not consider the information as privileged. Evidence will have to be presented to sustain the allegations of the complaint at the appropriate time, and such evidence would not be privileged at that time. Therefore, it is not privileged now. The plaintiff is not required by said order to produce any confidential report of an investigator of the Federal Government.

It is argued that the employees might be subjected to intimidation and fear of recrimination, but should such an eventuality arise that situation could then be dealt with, but certainly there is nothing before the Court at this time as a basis for such assertion.

The purpose of the new rules is to arrive at the facts as quickly as possible. The Court fails to see any valid reason why the specific facts upon which the ultimate facts in the complaint are alleged should not be made available to the defendant or any reason why the plaintiff should seek to withhold the facts.