by Debra H. Goldstein
Check out this never before published mystery short story from Debra Goldstein.
Judge Emma Rose Stewart frowned. She would have to teach her new law clerk not to be quite so over eager, but in the meantime she had a duo dilemma to deal with. She wasn’t sure which was worse – the earnest young lawyer her clerk had left stranded in her office doorway or trying to hide the ice cream cone she had been eating behind her.
Because she still wore her black robe, she knew its ample folds and the rounded wooden frame of the brocaded wing chair by the window concealed her treat, but she hadn’t considered how much easier wiping melted ice cream would have been from her leather desk chair than the cloth one.
“So, what exactly do you want me to do with this motion, Mr. Harris?” She nodded toward the document lying on the mahogany end table next to her.
He took a few steps toward her. She noted his ill-fitting suit and the way his bow-tie bobbed against his Adam’s apple until he froze in place when she glared at him. Harris cleared his throat and said, “The Solicitor’s office respectfully requests you immediately issue a temporary restraining order preventing California Fabrics from shipping any of its products in interstate commerce. Specifically, we want you to keep the company from moving towels from its Camarillo plant location.”
“The Department of Labor wants me to sign your proposed order without giving California Fabrics an opportunity to be heard?”
“Your honor, this is a “hot goods” case so time is of the essence. I notified California’s representative before I came here that I would be seeking a TRO at nine this morning.” Harris ran a hand with a shiny gold wedding ring on it through his close-cropped hair. He looked at the judge then rushed to fill the silence in the room.
“There is precedent for short notice in cases of this nature. The employees who made the towels on that truck and in the warehouse were not paid proper minimum and overtime wages. Without a temporary injunction, the company can move the goods – um towels – and we won’t ever be able to claim the proceeds from their sale to offset the improperly paid wages. Every minute you delay issuing an order is detrimental to California Fabrics’ workers.”
“That may be true.” Emma Rose weighed adequate notice against any possible harm to the employees while thinking about the wet sensation she felt on her otherwise engaged signing hand. “You’re new to my court, aren’t you?” The young man nodded. “Well, I believe in proper notice. You said you have the name of California’s legal representative?”
When Harris again moved his head slightly, she continued. “Good, notice him that I will hear your motion for a temporary restraining order at 2:00 p.m. That gives him three hours to be physically present or to make a telephone appearance.”
“No but about it. I’ll see you back here at two. If you need our telephone contact number, my law clerk will give it to you.” Harris started to say something else, but instead followed the route to the door set by the judge’s gaze.
As her metal reinforced door clicked, Emma Rose jumped up, put the mint chocolate chip filled sugar cone to her lips, and licked the ice cream all around to catch the drippings. Her decision to delay the proceeding until 2:00 p.m. had been just in time to avoid a mess. She thought about Harris’ argument that any delay could hurt the employees, but decided the importance of proper notice and an opportunity to be heard justified waiting three hours.
Mr. Harris returned to her office an hour early. To give him more pacing room, Emma Rose’s newly trained law clerk sent him to wait for the judge and opposing counsel in the empty courtroom. At two, the judge entered her courtroom carrying a slender file. Both lawyers stood, despite Emma Rose hastily waving them to be seated.
From her vantage point on the bench, she observed that both Mr. Harris and his papers appeared a bit more rumpled than earlier in the day. She then turned her attention to the attorney for California Fabrics, Jeb Ellis. He was as George Clooney beautiful as the days when they litigated against each other. Emma Rose stifled the thought of whether he still played fast and loose with the law. Being a judge, she couldn’t permit her personal feelings to color her thinking. She had to hear and decide cases based upon the merits of each fact pattern and application of the appropriate law.
“Mr. Harris,” she said, glancing down at the papers in front of her before peering over her reading glasses at him. “My understanding is that the Department of Labor is seeking a temporary restraining order to keep the defendant, California Fabrics, from moving goods made in violation of the Fair Labor Standards Act.”
“Yes, your honor. The towels in question were made by employees who failed to receive proper minimum and overtime wages.”
She held up a sheet of paper from her folder. “Did the Department try any other remedies before resorting to this?”
“We have been negotiating for months.” Emma Rose waited for Harris to explain further. “After a complaint was filed, the Wage and Hour division sent out an investigator. He determined from the company’s records and employee paystubs that there were several instances of failure to pay the proper minimum wage amount to seamstresses who hemmed the edges of California’s towels. In addition, when overtime was worked, it was only paid at the regular rate of pay rather than at time and one half. Attempts to resolve this matter for the past six months have proven to be unsuccessful.”
“Mr. Ellis?” Emma Rose watched Jeb slowly stand. At least six inches taller than his opposition, his impeccably tailored presence alone would have commanded attention, but he guaranteed it by pausing before speaking.
“May it please the court, there seems to be some confusion here. My client has been negotiating for a settlement in good faith. We have turned over records, made employees available, attended depositions, and while not admitting or denying guilt in this matter, even made a monetary offer to make this nuisance go away.”
Without raising his voice, Jeb talked over Harris’s attempt to ask when it became a nuisance to properly pay employees. “So, your honor,” Jeb said, stepping away from where Harris sat, “California Fabrics has been a good corporate citizen. It has provided jobs at fair wage rates here in our state rather than sending them abroad. We will continue to work with the Department of Labor to resolve this matter, but to restrain our delivery of goods would prevent us from having the funds to continue to employ the good folks of Camarillo County. The government is here before you today on a fishing expedition. They are trying to bait you into putting us into an untenable position, but there is nothing for you to enjoin. All of our trucks are already in transit.”
“When were the trucks dispatched? Before or after you were noticed about this hearing?”
“I’m not really certain what you mean by notice your honor. The first truck left the plant’s loading dock about
early this morning and the second shortly thereafter. By now, they should both be at or near Towelette Corporation, their Arizona destination.”
“So, at least one truck departed from California to Arizona after Mr. Harris called you and told you to be present in my courtroom at 2?”
Harris jumped up. “And the other one was after Mr. Ellis and the company officials received my paper notice of this hearing!”
When Emma Rose looked at Jeb, he shrugged his shoulders. Holding his manicured hands palm up to her, he admitted that might be the case, but then argued that the cat was out of the bag and that a temporary restraining order couldn’t stop the goods from being delivered now. He sat down with a smile on his face that reminded her of the satisfaction she had felt devouring her ice cream cone that morning.
Emma Rose avoided making eye contact with Mr. Harris. Instead, she focused on the proposed temporary restraining order that lay on her bench while remembering the feeling of being bested by a more seasoned attorney when she began her career as a litigator. She had vowed it would never happen again. Scribbling some notes on the order, she summoned her law clerk to approach the bench. He leaned forward to hear the instructions she whispered while she reread the temporary restraining order and added two more lines before handing it to him. She didn’t address the now seated attorneys until her clerk, clutching the executed document, left the courtroom.
“Mr. Ellis, you mentioned the goods were being delivered to Towelette Corporation in Arizona?”
“Yes, your honor. In fact, at least one truckload of towels should already be there.”
“Well, whether they are or aren’t is immaterial. By sending them across state lines, California Fabrics has engaged in interstate commerce. As Mr. Harris stated, The Fair Labor Standards Act’s hot goods provision specifically was designed to protect the public from employers profiting from minimum wage, overtime pay, or child labor violations. In the absence of an employer voluntarily correcting the violations, the government may seek to restrain the shipment of the goods. Case law is well established that this means not allowing the manufacturer to ship the goods in question to the wholesaler. It appears to me that California Fabrics had sufficient time to resolve this matter and received adequate notice of the Department of Labor’s seeking of a temporary injunction. Moreover….”
She stopped talking when the door of her courtroom creaked. Her law clerk took a seat in the empty jury box after she nodded her head slightly in acknowledgement of the okay sign he formed with his fingers. Before she could regain her train of thought, Jeb rose and began speaking.
“Your honor, my client and I don’t disagree with your explanation of the law, but we believe because the goods have shipped, it isn’t applicable to this situation. Consequently, we believe the motion for a temporary restraining order should be dismissed.”
“Actually, I’ve already signed the order and had it entered,” Emma Rose said. “I find that there is a question of clean hands in this matter because the goods weren’t shipped before you received proper notice at 9:00 a.m. that a TRO was being sought. Consequently, California Fabrics is hereby enjoined from shipping the towels in question.”
“There’s nothing to enjoin.”
“Ah, that’s where you’re wrong,” Emma Rose replied. “My law clerk has just informed me that Towelette Corporation has yet to receive the goods and has agreed not to accept them upon arrival because of the “hot goods” taint. That means those towels shortly will be on their way back to California. It would seem to me that it would be wise for the two of you to try to resolve this matter before California Fabrics incurs additional travel expenses bringing the goods back to its Camarillo plant and possible legal expenses related to failure to fulfill its contractual delivery obligations. I’ll set a hearing on the Wage and Hour matter for tomorrow at ten, but I’d advise the two of you to try to settle this before then. I’ve always found the ice cream bar downstairs to be a good place to sit and talk.”
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