(0. !.32j5 

IN THE jUp!tL~k, ,OIJK.C 9F 'I'HE STA CL .!h iVlOi~'I~i\lk 

19 7 6 

v~c8KlLlL TAND h LIVESTOCK, a Montana 

;orporation, 

Defendant and Respondent. 

ippdd!. irc)l\i: )is trlict Court of the Sixth Judicial Disrrict, 

tionorable Jack D. Shans trom, Judge presiding , 

For Appellant : 

James A. Tulley argued, Big Timber, Montana 

"or Itespondent : 

Kenneth R. Olson argued, Big Timber, Montana 

Submitted: May 26, 1976 

Decided : flu(, 1 6 iq 
Xr. Justice Johli Sonway Harrison dellvereci the Op~nio~l oi rh~ 

Court. 

This is an appeal from the order of the district court, 

Sweet Grass County dismissing plaintiff's complaint for fa.ilure 

to state a claim upon which relief may be granted. 

Plaintiff, Margaret Buttrell, filed an action based on an 

alleged violation of the Fair Labor Standards Act, 29 U.S.C.S. 

$5 201 through 219. She alleged she had not been paid the minimum 

wage and had not been paid overtime as required by the statute. 

Her complaint was dismissed by the district court for failure to 

state a claim upon which relief may be granted, based on the 

court's finding that plaintiff was not substantially engaged in 

interstate commerce. Plaintiff appeals. The question to be 

decided is whether the dismissal of the complaint was proper. 

The United Sta.tes Supreme Court set out the classic test 

of the sufficiency of a complaint as against a motion to dismiss 

in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L ed 2d 80, 84: 

I!* Jx In appraising the sufficiency of the complaint we 

follow, of course, the accepted rule that a complaint 

should not be dismissed for failure to state a claim unless 

it appears beyond doubt that the plaintiff can prove no 

set of facts in support of his claim which would entitle 

him to relief." 

This Court said in Kielmann v. Mogan, 156 Mont. 230, 233, 

"It is well settled that a complaint should not 

be dismissed for insufficiency unless it appears for 

certain that plaintiff is entitled to no relief under 

any state of facts which could be proved in support of 

the claim. Hamman v. United States, 267 F. Supp. 411 

(Mont. D.C. 1967) ." 

A stronger statement of this rule is found in Wheeler v. 

Xoe, 163 Mont. 154, 160, 515 P.2d 679, where the Court, quoting 

from 5 Wright and Miller's Federal Practice 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 

12(b)(6) 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. The Act, 

29 U.S.C.S. 5206, requires: 

"(a) Every employer shall pay to each of his employees 

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". 

11 29 U.S. C .S. § 203(b), defines commercet1 as : 
11 r Commerce' means trade, commerce, transportation, 

transmission, or communication among the several 

States, or between any State and any place outside 

thereof ." 

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 

11 covered employees who were themselves 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: 

"* * 9~ 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." 
After careful examination, these allegations prove sufficient 

to show that plaintiff was covered by the Fair Labor Standards 

Act. The first sentence quoted is very nearly a paraphrase of the 

Wage and Hour Division's regulation heretofore quoted. The 

allegation that defendant was "actively engaged in interstate 

commerce" raises the possibility that a "state of facts * * * 

cnuld be proved in support of the claim" that would be the basis 

of coverage of the defendant corporation and therefore the plaintiff 

employee under the "enterprise" coverage. These allegations do not 

show, on the face of the complaint, that plaintiff would not be 

covered by the Fair Labor Standards Act, just the opposite. They 

would entitle plaintiff to relief, if supported by the evidence 

presented at trial. 

The motion to dismiss for failure to state a claim upon 

which relief may be granted is not the proper place to determine 

coverage under the Fair Labor Standards Act. At that point such 

a determination is premature and must necessarily be based on 

inferences and not on proven facts. McComb v. Johnson, 174 F.2d 

833. The issue of coverage under the Fair Labor Standards Act is 

often the determinitive one, there being no dispute about the 

wage rate being below the minimum established by the statute. This 

issue is too important to be decided on assumed or inferred facts 

extrapolated from modern notice pleadings. 

In Clyde v. Broderick, 144 F.2d 348, decided before the 

amendments expanded the coverage to include employees of an "enterprise", the plaintiffs failed to specifically allege that their duties 

were devoted to commerce. The court refused to dismiss the complaint 

because it felt that - more than the "short and plain statement" of 

the facts in a complaint violates the spirit of simplicity, con- 
ciseness and directness that is the basis of modern pleadings. 

The court pointed out that facts would be developed at trial or 

upon further pleading which would clearly show whether the plaintiffs 

were covered by the Act. 

Any further specific information, for example information 

as to which workweeks the plaintiff claims she wa.s engaged in 

commerce during the time she set out in her complaint, and who 

her fellow employees were if "enterprise" coverage is claimed, 

may be obtained by the proper use of the discovery tools provided 

in the Montana Rules of Civil Procedure. 

The district court's order to dismiss the complaint for failure 

to state a claim upon which relief may be grant is vacated. The 

cause is remanded for further proceedings. 

Concur : 

~dn. Bernard W. Thomas, District 

Judge, sitting for Chief Justice 

James T. Harrison.