BUTTRELL v McBRIDE LAND LIVESTOC

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(0. IN THE j U p ! t L ~ k , ,OIJK.C !.32j5 9F 'I'HE STA CL .!h iVlOi~'I~i\lk 19 7 6 v ~ c 8 K l L l L TAND h LIVESTOCK, a Montana ;orporation, Defendant and Respondent. ippdd!. irc)l\i: )is t r l i c t C o u r t o f t h e S i x t h J u d i c i a l D i s r r i c t , tionorable J a c k D. Shans t r o m , J u d g e p r e s i d i n g , For Appellant : James A . T u l l e y a r g u e d , Big Timber, Montana "or Itespondent : Kenneth R. Olson a r g u e d , Big Timber, Montana Submitted: Decided : May 26, 1976 flu(, 16 iq X r . J u s t i c e Johli Sonway H a r r i s o n dellvereci t h e O p ~ n i o ~ l r h ~ oi Court. This i s an a p p e a l from t h e o r d e r of t h e d i s t r i c t c o u r t , Sweet Grass County d i s m i s s i n g p l a i n t i f f ' s complaint f o r f a . i l u r e t o s t a t e a c l a i m upon which r e l i e f may be g r a n t e d . P l a i n t i f f , Margaret B u t t r e l l , f i l e d an a c t i o n based on an a l l e g e d v i o l a t i o n of t h e F a i r Labor Standards Act, 29 U.S.C.S. $ 5 201 through 219. She a l l e g e d she had n o t been p a i d t h e minimum wage and had n o t been p a i d overtime a s r e q u i r e d by t h e s t a t u t e . Her complaint was dismissed by t h e d i s t r i c t c o u r t f o r f a i l u r e t o s t a t e a c l a i m upon which r e l i e f may be g r a n t e d , based on t h e c o u r t ' s f i n d i n g t h a t p l a i n t i f f was n o t s u b s t a n t i a l l y engaged i n i n t e r s t a t e commerce. P l a i n t i f f appeals. The q u e s t i o n t o be decided i s whether t h e d i s m i s s a l of t h e complaint was p r o p e r . The United S t a . t e s Supreme Court s e t o u t t h e c l a s s i c t e s t of t h e s u f f i c i e n c y of a complaint a s a g a i n s t a motion t o d i s m i s s i n Conley v . Gibson, 355 U.S. 4 1 , 78 S.Ct. I!* 9 9 , 2 L ed 2d 80, 84: Jx I n a p p r a i s i n g t h e s u f f i c i e n c y of t h e complaint we f o l l o w , of c o u r s e , t h e accepted r u l e t h a t a complaint should n o t be dismissed f o r f a i l u r e t o s t a t e a c l a i m u n l e s s i t appears beyond doubt t h a t t h e p l a i n t i f f can prove no s e t of f a c t s i n s u p p o r t of h i s c l a i m which would e n t i t l e him t o r e l i e f . " This Court s a i d i n Kielmann v. Mogan, 156 Mont. 230, 233, "It i s w e l l s e t t l e d t h a t a complaint should n o t be dismissed f o r i n s u f f i c i e n c y u n l e s s i t appears f o r c e r t a i n t h a t p l a i n t i f f i s e n t i t l e d t o no r e l i e f under any s t a t e of f a c t s which could be proved i n s u p p o r t of t h e claim. Hamman v. United S t a t e s , 267 F. Supp. 411 (Mont. D.C. 1967) ." A s t r o n g e r s t a t e m e n t of t h i s r u l e i s found i n Wheeler v . Xoe, 163 Mont. 154, 160, 515 P.2d 679, where t h e Court, q u o t i n g from 5 Wright and M i l l e r ' s F e d e r a l P r a c t i c e and Procedure, p. 598, said: I1 I The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. 9 * * : "'As a practical matter, a dismissal under Rule 1()6 2b() is likely to be granted only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. In other words, dismissal is justified only when the allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim. * * *I1' In the instant case then, the question is whether plaintiff made allegations on the face of her complaint which demonstrate that she does not have a claim; whether she could prove no set of facts in support of her claim which would entitle her to relief. The district court found the insufficiency of the complaint was that there was no coverage under the Fair La.bor Standards Act. The basic provisions of that Act must be examined to determine if the court was correct in dismissing the complaint. 29 U.S.C.S. The Act, 5206, requires: Every employer shall pay to each of his employees "a () who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates: "1 () not less than $2 an hour * * *." The Act does not attempt to cover every employee that Congress could have reached by a full exercise of the Constitution's commerce clause power. Under the Act, the determination of the extent of coverage is "a problem of statutory delineation, not constitutional power ** *.I1 Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L ed 83, 84. A key to the determination of the scope of coverage under the Fair Labor Standards Act is the definition of "commerce". 29 U.S. C .S. § 203(b), defines 11 commercet1as : Commerce' means trade, commerce, transportation, transmission, or communication among the several States, or between any State and any place outside thereof 11 r ." By this definition, commerce includes the act of communication. The Department of Labor Wage and Hour Division discusses this aspect of the definition of "commerce" at 29 C.F.R. 5 776.10 (b) : * 'I* * since 'commerce' as used in the act includes not only 'transmission' of communications but 'communication' itself, employees whose work involves the continued use of the interstate mails, telegraph, telephone or similar instrumentalities for communication across State lines are covered by the act. This does not mean that any use by an employee of the mails and other channels of communication is sufficient to establish coverage. But if the employee, as a regular and recurrent part of his duties, uses such instrumentalities in obtaining or communicating information or in sending or receiving written reports or messages, or orders for goods or services, or plans or other documents across State lines, he comes within the within the scope of the act as an employee directly engaged in the work of 'communication' between the State and places outside the State." As originally enacted the Fair Labor Standards Act only covered employees who were themselves 11 engaged in commerce" or in "the production of goods for commerce". Later the Act was amended to extend coverage to employees of an "enterprise engaged in commerce" whether the employees themselves were engaged in commerce or not. In Paragraph 3 of her complaint, plaintiff set out these facts to show she was covered by the Act: "* * During the course of her employment in such position, plaintiff was called upon to conduct correspondence and engage in telephone conversations with prospective real estate purchasers located both within and outside the State of Montana. Plaintiff states that a substantial portion of her services during the term of her employment were rendered in dealing with persons living outside the State of Montana, and that said defendant is actively engaged in interstate commerce." 9~ A f t e r c a r e f u l examination, t h e s e a l l e g a t i o n s prove s u f f i c i e n t t o show t h a t p l a i n t i f f was covered by t h e F a i r Labor Standards Act. The f i r s t sentence quoted i s v e r y n e a r l y a paraphrase of t h e Wage and Hour D i v i s i o n ' s r e g u l a t i o n h e r e t o f o r e quoted. The a l l e g a t i o n t h a t defendant was " a c t i v e l y engaged i n i n t e r s t a t e commerce" r a i s e s t h e p o s s i b i l i t y t h a t a " s t a t e of f a c t s *** cnuld be proved i n support of t h e claim" t h a t would be t h e b a s i s of coverage o f t h e defendant c o r p o r a t i o n and t h e r e f o r e t h e p l a i n t i f f employee under t h e " e n t e r p r i s e " coverage. These a l l e g a t i o n s do n o t show, on t h e f a c e of t h e complaint, t h a t p l a i n t i f f would n o t be covered by t h e F a i r Labor Standards Act, j u s t t h e o p p o s i t e . They would e n t i t l e p l a i n t i f f t o r e l i e f , i f supported by t h e evidence presented a t t r i a l . The motion t o dismiss f o r f a i l u r e t o s t a t e a c l a i m upon which r e l i e f may be g r a n t e d i s n o t t h e proper p l a c e t o determine coverage under t h e F a i r Labor Standards Act. A t t h a t p o i n t such a d e t e r m i n a t i o n i s premature and must n e c e s s a r i l y be based on i n f e r e n c e s and n o t on proven f a c t s . 833. McComb v. Johnson, 174 F.2d The i s s u e of coverage under t h e F a i r Labor Standards Act i s often the determinitive one, t h e r e being no d i s p u t e about t h e wage r a t e being below t h e minimum e s t a b l i s h e d by t h e s t a t u t e . This i s s u e i s too important t o be decided on assumed o r i n f e r r e d f a c t s e x t r a p o l a t e d from modern n o t i c e pleadings. I n Clyde v. Broderick, 144 F.2d 348, decided b e f o r e t h e amendments expanded t h e coverage t o i n c l u d e employees of an " e n t e r prise", the p l a i n t i f f s f a i l e d t o specifically allege t h a t t h e i r duties were devoted t o commerce. The c o u r t r e f u s e d t o dismiss t h e complaint - because i t f e l t t h a t more than t h e " s h o r t and p l a i n statement" of t h e f a c t s i n a complaint v i o l a t e s t h e s p i r i t of s i m p l i c i t y , con- c i s e n e s s and d i r e c t n e s s t h a t i s t h e b a s i s of modern p l e a d i n g s . The c o u r t pointed o u t t h a t f a c t s would be developed a t t r i a l o r upon f u r t h e r p l e a d i n g which would c l e a r l y show whether t h e p l a i n t i f f s were covered by t h e Act. Any f u r t h e r s p e c i f i c information, f o r example information a s t o which workweeks t h e p l a i n t i f f claims she wa.s engaged i n commerce during t h e time she s e t o u t i n h e r complaint, and who h e r f e l l o w employees were i f " e n t e r p r i s e " coverage i s claimed, may be obtained by t h e proper u s e of t h e d i s c o v e r y t o o l s provided i n t h e Montana Rules of C i v i l Procedure. The d i s t r i c t c o u r t ' s o r d e r t o d i s m i s s t h e complaint f o r f a i l u r e t o s t a t e a c l a i m upon which r e l i e f may be g r a n t i s vacated. cause i s remanded f o r f u r t h e r proceedings. Concur : ~ d n .Bernard W. Thomas, D i s t r i c t Judge, s i t t i n g f o r Chief J u s t i c e James T . Harrison. The

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