Before SPARKS, MAJOR, and MINTON, Circuit Judges.
The plaintiffs-appellees filed an action against the defendant-appellant in the District Court for the Northern District of Illinois in what is commonly called a portal to portal action. Under discovery procedure the plaintiff, some two hundred in number, obtained an order from the District Court on May 24, 1946 requiring the defendant to compile, compute, and furnish to the plaintiffs within ninety days certain information as to each of the plaintiffs. From its records the defendant furnished the requested information as to each plaintiff as follows: the time clocked in and out each day; the amount of time for which he was paid; the rate of pay; the amount of time he was shown by clock records to be upon the defendant's premises over and above the time paid for; and the total amount of overtime paid to him.
On November 4, 1946, the court entered the following order on motion of the plaintiff:
"IT IS ORDERED that the defendant compile, compute and furnish to the plaintiffs on or before 45 days, the total compilation and computation for each and for all of the plaintiffs of hours over 40 hours; total overtime paid, and total overtime unpaid on the basis of time and one-half over 40 hours per workweek for each and all of said plaintiffs."
The defendant has furnished all of the information requested except a computation of the time, at the rate of time and one-half, spent by each plaintiff on the premises between the time he clocked in and the time he commenced work, and between the time he ceased work and the time he clocked out. By its order the court placed the burden of this computation on the defendant. From this order the defendant has appealed on the theory that said order was an interlocutory mandatory injunction and appealable under Sec. 129 of the Judicial Code.*fn1 It is frankly admitted that the order was not final within the meaning of Sec. 128 of the Code, 28 U.S.C.A. § 225. Was it an interlocutory mandatory injunction? That is the sole question. If it is, the question presented on the court's order is before us. If it is not, we have no jurisdiction.
We start with the proposition that mandatory injunctions are rarely issued and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds. 43 C.J.S. Injunctions, § 5, pp. 410, 411, 412; 28 Am.Jur., Injunctions, Sec. 20; High on Injunctions (3rd ed.) Sec. 2.
The Federal Rules of Civil Procedure, rules 34-36, 28 U.S.C.A. following section 723c, provide not only for discovery but for pre-trial conference.(Rule 16.) Under these rules we think the court has wide discretion and power to advance the cause and simplify the procedure before the cause is presented to the jury. The District Court had the power to issue such orders as in the exercise of a sound discretion would advance and simplify the cause before trial. If it abused that discretion in making such orders, it is conceded that no appeal would lie under Sec. 128. There would be nothing final about such orders.
In our opinion, the order made in the instant case was such an order. It was only a step in the orderly procedure of the case. The District Court was exercising its pre-trial powers. It would, in our opinion, have had the power to make the order it made irrespective of the Federal Rules of Civil Procedure.
We do not attempt at this time to pass upon the fairness of the order. The only thing the District Court asked of the defendant was a rather burdensome computation which it is obvious the plaintiffs were as competent to make as the defendant, although probably not as well equipped.Furthermore, the computation was to aid the plaintiffs in the discharge of their burden. The most that can be said is that the District Court put the heavy burden of computation where it should not have been. It is difficult to see how at this stage of the proceeding that could be prejudicial error.It does not follow that after the computations were made they would be admissible in evidence simply because made in compliance with the order in question. The admissibility of any or all computations was for the court upon the trial. We do not agree with the defendant that the computations, if made under this order, would be an admission of liability of the defendant for all or any part of said computations.If any or all of the computations were admitted on the trial, the fairness thereof could be reserved like any other claimed error until a final determination of the cause. If the defendant thought the order so grossly in violation of its fundamental rights, it could have disobeyed the order, been adjudged in contempt, and then appealed from such judgment, as was done in the recent case of Hickman v. Taylor, 67 S. Ct. 385. See also Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686.
In the instant case the court did not purport to be using its extraordinary powers as a chancellor to issue the rare interlocutory mandatory injunction. Nothing had been done here that the court is mandatorily ordering to be undone. There was no showing or pretense of showing by the plaintiffs of any equitable ground as a basis for said order. The court was not moved to enter the order on the consideration of any equitable principles. It was using only such powers as a court of law has to rule in the orderly progress of a case. The mere fact that the court orders something to be done in the progress of a case does not make that order a mandatory injunction. If the court in the midst of a trial in which long computations become necessary should stop the trial and order one of the parties to make the computations and return them into court by a certain time, would anyone suppose that that was an interlocutory mandatory injunction, even though the party had been ordered to do it, and that appeal would immediately lie therefrom? All orders of court are mandatory in the sense that they are to be obeyed; but all orders of court are not mandatory injunctions. There must be more than an order. The order must be based on equitable grounds to justify the use of the extraordinary powers of equity, such, by way of illustration, as irreparable damages, no remedy at law, or that acts should be undone to restore the status quo. 28 Am.Jur., Injunctions, Sec. 20.
The defendant relies upon Red Star Laboratories Co. v. Pabst, 7 Cir., 100 F.2d 1, decided by this court, and Ettelson v. Metro. Ins. Co., 317 U.S. 188, 63 S. Ct. 163, 87 L. Ed. 176. In the first case Red Star brought a creditor's bill against Pabst and had a receiver appointed. The debtor had certain insurance policies in which his wife was named as beneficiary without the right of change. In this proceeding the court without a hearing ordered the insurance companies to change the beneficiaries in all of the policies from the wife to the receiver and directed the receiver to notify the insurance companies accordingly.This was no ordinary step in the progress of the trial of a lawsuit. As this Court pointed out (100 F.2d p. 4) "The effect of the order was to alter rather than preserve the statute quo" which is the most characteristic mark of a mandatory injunction. This was an equity case, and the order purported to settle the rights of the parties under the policies.
In the Ettelson case actions at law were filed to recover on certain life insurance policies. The defendant by counterclaim alleged that the policies were obtained by the fraud of the insured and were void therefor, and prayed that the policies be decreed void and the plaintiff be enjoined from further prosecuting the action at law. The trial court ordered the counterclaim to be heard in equity and to be disposed of prior to the trial of the cause of action at law set forth in the complaint. Was this an injunction appealable under Sec. 129? The court held that it was. But it was not a mandatory injunction. The court said (pages 191, 192 of 317 U.S. 188, 63 S. Ct. 163, 164, 87 L. Ed. 176):
"* * * it may, in practical effect, terminate that action. It is as effective in these respects as in injunction issued by a chancellor.* * * The relief afforded by § 129 is not restricted by the terminology used. The statute looks to the substantial effect of the order made."
In this case the substantial effect of that order, if sustained, as the court said, would end the lawsuit. No such consequence would follow the enforcement of the instant order. If a procedural error was committed, that was prejudicial, the rights of the defendant were preserved. The order in the instant case was intended to be in aid of the determination of the issues set up in the complaint, while the orders in the Red Star and Ettelson cases were in themselves determinative.
The Supreme Court of California in Union Oil Co. of California v. Reconstruction Oil Co., 4 Cal.2d 541, 51 P.2d 81, 83, has held in a case that cannot be distinguished from the instant case that such an order made in the progress of the trial is not a mandatory injunction and in not appealable. In that case, the plaintiff had brought suit to enjoin the defendants from taking oil from the plaintiff's well through their well on adjoining land by "whipstocking," that is, by sinking the defendants' well so that the pipe went down to a certain depth on the defendants' land and then bent toward and went under the plaintiff's land. The court by an order appointed experts to make an examination as to the facts preparatory to testifying, and ordered the defendants to permit the examination without interference. This order and a similar one were appealed from. The court in a very clear opinion held that the orders were important and essential in the correct determination of the main issue, that they were simply a step in the procedure to that end, and that they were the exercise of a power inherent in the court to aid the plaintiff in producing the evidence necessary to sustain its action. The court held that the orders were neither final orders nor mandatory injunctions.
The order attempted to be appealed from here was not an interlocutory mandatory injunction and was not appealable under Sec. 129. It is admittedly not a final order under Sec. 128. We have no jurisdiction. The order entered in this Court staying the proceedings in the District Court is vacated, and the appeal is dismissed.
SPARKS, Circuit Judge, dissenting.
This is an appeal from an interlocutory order, taken under section 129 of the Judicial Code, 28 U.S.C.A. § 227. The case arises under the Fair Labor Standards Act, 29 U.S.C.A. section 201 et seq., as construed in Anderson, et al. v. Mt. Clemens Pottery Company, 66 S. Ct. 1187.
The main action was brought by about two hundred plaintiffs. Their amended complaint alleges that they were employed by defendant during the was as armed guards at its plant, and that defendant failed to pay them for such services for pre-reporting and check-in time, for time in traveling to and from their post of duty, and for waiting time. Defendant's answer alleges that it paid plaintiffs in full for all working time, ...