(0. 

### !.32j5 

### IN THE jUp!tL~k,,OIJK.C 9F 'I'HE STACL .!h iVlOi~'I~i\lk 19 7

### 6

v~c8KlLlLTAND h LIVESTOCK, a Montana ;orporation, Defendant and Respondent.

ippdd!. irc)l\i: )istrlict Court of the Sixth Judicial Disrrict, tionorable Jack D. Shanstrom, 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 iqXr. 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 claimupon 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 claimupon which relief may be granted, based on the court's finding that plaintiff was not substantially engaged in interstate commerce. Plaintiff appeals. The question tobe decided iswhether 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, 2L 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 claimwhich would entitle him to relief." This Court said inKielmann v. Mogan, 156Mont. 230, 233,

"It iswell settled that a complaint should not be dismissed for insufficiency unless it appears for certain that plaintiff isentitled tono relief under any state of factswhich 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 inWheeler v. Xoe, 163Mont. 154, 160, 515 P.2d 679, where the Court, quoting from 

### 5 Wright and Miller's Federal Practice and Procedure, p. 

### 598, said:I1I

### Themotion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. 9: 

# * *

"'As a practicalmatter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case inwhich plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. In otherwords, dismissal is justified onlywhen the allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim.

# ** *I1' 

### In the instant case then, the question iswhether plaintiff made allegations on the face of her complaintwhich 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 insufficiencyof the complaint
was that therewas no coverage under the Fair La.borStandardsAct. Thebasic provisions of thatAct 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 shallpay to each of his employees who in anyworkweek 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

# **

# *." TheAct does not attempt to cover every employee that Congress could have reached by a full exercise of the Constitution's commerce clausepower. Under theAct, the determination of the extent of coverage is "a problem of statutory delineation,not constitutionalpower

# ** *.I1 

### Warren-BradshawDrilling Co. v. Hall, 317U.S. 88, 63S.Ct. 125, 87L 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:11r

### 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. 

### 5776.10 (b) :

'I*

# *

# * since 'commerce' as used in the act includes not only 'transmission' of communications but 'communication' itself, employeeswhose 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 receivingwritten reports or messages, or orders for goods or services, or plans or other documents across State lines,he comes within thewithin 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 StandardsAct only

11 

### covered employeeswho were themselves engaged in commerce" or in "the production of goods for commerce". Later theAct was amended to extend coverage to employees of an "enterprise engaged in commerce" whether the employees themselveswere 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,plaintiffwas called upon to conduct correspondence and engage in telephone conversationswith 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 employmentwere rendered in dealingwith 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 isvery 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 entitleplaintiff to relief, if supported by the evidence presented attrial. The motion todismiss for failure to statea claimupon which relief may be granted 

### is not the proper place to determine coverage under the Fair Labor Standards Act. Atthat 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, therebeing no dispute about the wage ratebeing below the minimum established by the statute. This issue is too important tobe decided on assumed or inferred facts extrapolated from modern notice pleadings. In Clyde v. Broderick, 144F.2d 348, decided before the amendments expanded the coverage to include employees of an "enterprise", the plaintiffs failedto specifically allege that their duties
were devoted tocommerce. The court refused to dismiss the complaint because it feltthat 

# - 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 factswould be developed at trialor upon further pleadingwhich would clearly show whether the plaintiffs
were covered by theAct. Any further specific information, for example information
as towhich workweeks the plaintiff claims she wa.s engaged in
commerce during the time she setout inher complaint, and who her fellow employees were if "enterprise" coverage isclaimed, may be obtained by the proper use of the discovery tools provided in theMontana Rules of Civil Procedure. The district court's order to dismiss the complaint for failure to state a claimupon which relief may be grant 

### isvacated. The
cause 

### isremanded for further proceedings.

Concur:

~dn. Bernard W. Thomas, District Judge, sitting for Chief Justice James T. Harrison.