Supplemental Brief — Eastern Photographic Laboratories, Inc. v. Braunstein

‘Suprema Court, U.S |

IN THE

MICHABL RODAK, JR., CLERK |

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1306

EasterRN Pxotocraruic Lasoratories, INc.,

AND Heart or America Portraits, Inc.,

Petitioners,

vs.

Rosperta BRAUNSTEIN,

Respondent.

PETITIONERS’ SUPPLEMENTAL BRIEF IN SUPPORT

OF THEIR PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

SHavun S, Sutirvan

195 Church Street

New Haven, Connecticut 06508

(203) 789-1511

Of Counsel:

Wru1aM J. DoyLe

MarsHAt. B. Basson

195 Church Street

New Haven, Connecticut 06508

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1306

ee

Eastern PxHotocrapuic Laporatortes, INC.,

AND Heart or America Portraits, INc.,

Petitioners,

VS.

Rosperta BRAUNSTEIN,

Respondent.

PETITIONERS’ SUPPLEMENTAL BRIEF IN SUPPORT

OF THEIR PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

SS

Eastern Photographie Laboratories, Inc., and Heart of

America Portraits, Inc. (hereinafter colectively referred

to as “Kastern”) file the following supplemental brief in

support of Eastern’s pending petition for a writ of cer-

tiorari on the sole issue of whether, as respondent contends,

the present appeal is moot.

The Appeal Is Not Moot

Notwithstanding the fact that on March 21, 1979, the Dis-

trict Court ordered that notice be mailed to other present

and former Eastern employees, it is clear that the present

appeal is not moot.

2

On April 2, 1979, plaintiff filed the annexed motion to com-

pel, thereby once again seeking the District Court’s assist-

ance in effectuating the issuance of notice to other present

and former Eastern employees. See plaintiff’s inter-

rogatories dated July 5, 1978, Appendix p. ia and plaintiff’s

motion to compel dated April 2, 1979, Appendix p. da.

The filing of the present motion makes it abundantly clear

that (1) there remains a substantial controversy between

the parties over the appropriateness of notifying potential

class members of the pendency of this section 16(b) Fair

Labor Standards Act action, and (2) the District Court

continues to be called upon to exercise its powers to effec-

tuate the giving of notice in this section 16(b) Fair Labor

Standards Act action. Moreover, the filing of the present

motion demonstrates that this is an issue “capable of repeti-

tion, yet evading review.” Southern Pacific Terminal Co. v.

I.C.C., 219 U.S. 498, 515 (1911) ; Roe v. Wade, 410 U.S. 113,

125 (1973). See Sosna v. Iowa, 419 U.S. 393, 399 (1975) ;

cf. Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975);

Preiser v. Newkirk, 422 U.S. 395, 401-03 (1975). It is clear,

therefore, that the issue of whether or not the District

Court has the power to advise potential litigants of the

pendency of the present action and of their right to join

such action is not moot.

Respectfully submitted,

Suaun S. Svutirvan,

Attorney for Petitioners.

Of Counsel:

WruiuM J. Dove

MarsHaut B. Basson

April 9, 1979

APPENDIX

la

Plaintiff’s Initial Request for Interrogatories

(Filed—July 9, 1978)

~

Unrrep States District Court

District or CONNECTICUT

Civil Action No. B78-252

Roserta BravnstTEIn,

Plaintiff,

vs.

Eastern PxHotocrapHic Lasoratorigs, Inc.

Heart oF America Portraits, INc.,

Defendants.

The Plaintiff seeks and requests the following informa-

tion of the Defendants:

“TpENTIFY” means identification of name, all home or

; business addresses known to you, including any alternate

or forwarding address and last known address, social se-

curity number, and telephone numbers.

1. Identify each person presently employed by you as

of the date of the Answers to these Interrogatories,

giving dates of employment (including initial orien-

tation and training).

2. Identify each person employed by you on or after

July 1, 1975 but not presently employed by you (as

of the date of Answers to Interrogatories), giving

2a

Plaintiff’s Initial Request for Interrogatories

beginning and ending dates of employment, starting

with initial orientation and training.

PLAINTIFF

By: A. Reynotps Gorpon, Attorney

Gordon & Hiller

: 855 Main St., Suite 945

Bridgeport, CT 06604

July 5, 1978.

3a

Motion to Compel

Unirep States District Court

District oF CONNECTICUT

Civil Action No. B78-252

ip.

a

Roperta BRAUNSTEIN,

Plaintiff,

Vs.

EASTERN PHOTOGRAPHIC LABORATORIES, INc., et al.,

Defendants.

The Plaintiff in the above entitled matter respectfully

represents:

1. Under date of July 5, 1978 the Plaintiff filed her ini-

tial request for interrogatories.

2. On said date the Court granted (without prejudice)

the Plaintiff’s motion to shorten the time to answer said

interrogatories to ten days.

3. On July 24, 1978 the Defendants objected to said re-

quest for interrogatories, the objections were overruled

on July 27, 1978.

4. On July 21, 1978 the Defendants provided lists of

names and addresses of employees.

da

Motion to Compel

5. The Defendants did not provide any answers under

oath as required by Federal Rules of Civil Procedure, and

the list provided did not contain dates of employment, al-

ternate addresses, telephone numbers and social security

numbers, all as required on said initial request for inter-

rogatories, and some of the zip codes were unstated.

6. The Plaintiff sent out the Court-authorized notices to

463 employees on March 21, 1979.

7. As of April 2, 1979 87 notice envelopes have been re-

turned to the Court Clerk’s office for lack of proper address.

8. The Defendants have not brought the list of em-

ployees up to date.

TuHereroreE the Plaintiff respectfully requests that the

Defendants be CompEL_en to provide:

1. As to each employee whose notice envelope was re-

turned by the Postal authorities to the Clerk of this Court:

a. An oath by the Personnel Manager that the address

given is accurate and that there is no alternate or forward-

ing address.

b. The employee’s social security number.

e. Telephone numbers.

d. Dates of employment.

2. As to each employee whose consent is filed, the dates

of employment of that employee, giving beginning and

ending dates of employment, starting with initial orienta-

tion and training.

da

Motion to Compel

2 Full answers to the Initial Request for Interroga-

tories as to each photographer employed since July 20,

1978 and up to the present time.

Tue PLAINTIFF

By: A. Rrynotps Gorpon

Of: Gordon & Ililler

855 Main St., Suite 946

Bridgeport CT 06604

CERTIFICATION

This is to certify that a copy of the foregoing has been

mailed postage prepaid to all counsel of record.

A. Reynoips Gorpon

April 2, 1979.