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November 12, 1958

Mathias EISENMANN et al.

The opinion of the court was delivered by: KIRKPATRICK

Sur Motion to Amend

This is a motion to amend the second cause of action pleaded in a complaint filed against their employer by a number of employees in a plant manufacturing lead acid storage batteries. The first cause of action is for overtime under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. and is not material to this discussion.

 The proffered amendment consists of (1) A claim for wages unpaid and expenses incurred as a result of the defendant's alleged failure to comply with its duty under the New Jersey occupational disease statute, N.J.S.A. 34:6-50 in failing to allow and pay wages for the required clean-up time and to furnish various items at its expense for the reduction of lead hazard. This is all spelled out in the second cause of action as pleaded in the original complaint, except for one or two unimportant changes and additions. (2) A claim for the same items, except that instead of being grounded upon the New Jersey statute it is grounded upon an alleged breach of a common-law duty to provide a safe place to work and to properly guard against health and safety hazards. (3) A claim for impairment of health, reduction of life expectancy, increased susceptibility to other diseases and the like, alleged to have been caused by the defendant's failure to perform the common-law duty to furnish a safe place to work, etc., pleaded above.

 A motion to amend after a responsive pleading has been served is addressed to the discretion of the Court. The rule provides that leave shall be freely given when justice so requires but I am of the opinion that justice does not require the allowance of this amendment and that, on the contrary, to do so would entail useless delay and waste of time.

 This action was commenced on August 22, 1956. A motion to transfer the case under 28 U.S.C. § 1404 was made and, after argument, denied by the Court on December 28, 1956. A motion for reargument was denied on January 25, 1957. The answer was filed on February 8, 1957. Discovery proceedings were carried on through the balance of 1957 and until April 10, 1958, at which time the defendant filed a motion for summary judgment in its favor upon the second cause of action pleaded in the original complaint, for failure to state a valid claim, and also raising the question of jurisdiction. This motion was fully argued on July 1, 1958. At that time counsel for the plaintiffs advised the Court that a motion to amend the complaint would be filed shortly. It was filed on July 11 and is now before the Court for disposition.

 The amendment contains no facts unknown to the plaintiffs and their counsel at the time the original complaint was filed. Nothing new was brought out by the discovery proceedings. Nevertheless the plaintiffs waited nearly two years to move to amend the complaint and then made the motion only after a motion for summary judgment had been filed and argued. The plaintiffs should not be permitted to sit by for this period of time and attempt to bolster up their pleadings in answer to a motion for summary judgment when that motion has not been filed precipitately and when they have had ample opportunity to present their claims to the Court in a timely manner. County of Marin v. United States, D.C., 150 F.Supp. 619, 623.

 There is another reason why the amendment should not be allowed and that is that it does not plead a claim upon which relief can be granted. Speaking of the discretionary power of the Court in applications for leave to amend, the Court of Appeals in Stephens v. Reed, 3 Cir., 121 F.2d 696, 699, said 'There can be no abuse (of discretion) when what is refused would avail the offeror nothing if allowed.'

 The New Jersey act is a penal statute providing penalties for its violation by either employers or employees, together with a procedure for the recovery of these penalties by a civil action in the name of the Commissioner. There is no suggestion of an intent to create any private rights either in the penalties or for monetary loss or expenses. The law of New Jersey, which is substantially that of Pennsylvania, governs and in Pericin v. Denburg's Modern Bakery, 130 N.J.L. 547, 33 A.2d 825, the New Jersey Court of Errors and Appeals, dealing with a case under the same title and chapter of the New Jersey statute, dismissed the action on the pleadings, holding that the statute was penal, was concerned only with the safety and health of employees and did not create a private cause of action.

 The plaintiffs rely upon the Restatement of Torts, Vol. 2, Sec. 286, which states several situations in which a penal statute may evince an intention on the part of the legislature to impose civil liability, but it will be noted that the Restatement says 'The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if. * * * (b) the interest invaded is one which the enactment is intended to protect.' In the present case, it is perfectly clear, as the Court held in the Pericin case, supra, that the interest of the employees which the New Jersey statute is intended to protect is a health interest and not a financial interest.

 The fundamental question involved is always the intention of the legislature as to the means of enforcement. The purpose of the act is to compel the employer to furnish washing and bathing facilities, etc., and also to compel employees to use them. Money payments to the employees would not further this purpose. For example, suppose an employer had failed to furnish any bathing facilities but had agreed to pay his employees each for ten minutes overtime in lieu thereof, on the theory that they could bathe at home. Obviously, the act would have missed its purpose. It is reasonable to believe that the legislature considered the penalty provision of the act as adequate to ensure the employer's compliance with it and that a private cause of action in the individual employees was not necessary or appropriate to achieve its object. Therefore, the Court will not imply one.

 The motion for leave to amend must be denied for both reasons discussed.

 Sur Motion for Summary Judgment

 The motion is granted, for the reasons set forth in the part of the foregoing discussion concluding that the New Jersey statute ...

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