McCloskey & Co. v. Eckart, No. 11967.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtSIBLEY, HUTCHESON, and HOLMES, Circuit
Citation164 F.2d 257
PartiesMcCLOSKEY & CO. v. ECKART.
Decision Date12 November 1947
Docket NumberNo. 11967.

164 F.2d 257 (1947)

McCLOSKEY & CO.
v.
ECKART.

No. 11967.

Circuit Court of Appeals, Fifth Circuit.

November 12, 1947.


164 F.2d 258

T. Paine Kelly, Jr., of Tampa, Fla., for appellant.

B. A. Gregory and Donn Gregory, both of Tampa, Fla., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

Appellee Eckart on July 9, 1945, sued his employer McCloskey & Co. for $1,002.13 as liquidated damages arising from delay in paying $1,002.13 overtime earned between Nov. 1, 1942, and Jan. 15, 1943, and also for $100.06 of overtime between July 2, 1944, and Oct. 1, 1944, and a like sum of $100.06 as liquidated damages for delay, all by virtue of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). He alleged he worked in the payroll department and did work "necessary in handling the accounts of the many employees engaged in constructing ships and boats for use in interstate and foreign commerce for the United States Government in prosecution of the present war"; and that $1002.13 was about May 15, 1945, paid him for actual overtime worked prior to July 1, 1944, but with no damages added; and an itemized schedule of overtime since July 1, 1944, was annexed. Because of the interest of the United States in the matter, the ships being built on a cost plus basis, the United States District Attorney undertook the defense, but for more than four months was unable to obtain instructions from Washington, and after two extensions of time to plead, the Clerk on plaintiff's motion entered a default on Nov. 29, 1945. On that date further time was asked by the district attorney to allow the defendant to file an answer. The request was resisted, and the court said that in view of the circumstances the plaintiff might go ahead and prove his case, but no judgment would be entered for a few days or weeks to enable the Maritime Commission to come in and show they have a defense. The plaintiff's evidence was then heard. On Dec. 6, 1945, a formal motion was filed to open the default and an answer was tendered. The court said the first question was whether a defense was presented; "If so, the Court may permit the case to be opened; but if not, it would be an idle gesture". In addition to the allegations of the answer, counsel made a more detailed statement of the defenses intended to be proved, and the matter was then taken under advisement. On Dec. 21, 1946, a final judgment was rendered, the judge referring in his conclusions of law to each proposed defense and holding that it was not good in law, and giving judgment for the amounts sued for, with attorney's fees. This appeal was taken.

1. There was no formal overruling of the motion to open the default, but the judgment given amounted to a denial of it upon the ground that the defenses offered were not good in law. The opening of a default under Federal Rules, of Civil Procedure, rule 55(c), 28 U.S.C.A. following section 723c, is generally discretionary, but the record indicates that discretion would have been favorably exercised if a good defense had been offered. We accordingly examine the defenses pleaded.

2. The answer admits that defendant was building ships and boats for use in interstate and foreign commerce and for the United States Government, but denies that plaintiff had correctly stated his duties; averring that until Jan. 16, 1943, he was head payroll clerk, but then became "Head Payroll Supervisor" and his job classification was changed to "Supervision and Clerical", and so continued to the end; and that during all said time his duties were of an executive and...

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25 practice notes
  • Martinez v. Bohls Bearing Equipment Co., No. Civ.A.SA-04-CA-0120-XR.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 11, 2005
    ...to allow purely private settlements without approval from either the Department of Labor or the courts. In McCloskey & Co. v. Eckart, 164 F.2d 257 (5th Cir.1947), the Court put forward a somewhat expansive reading of section 3 of the Portal-to-Portal Act. McCloskey held a private settlement......
  • U.S. v. Allegheny-Ludlum Industries, Inc., ALLEGHENY-LUDLUM
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 1975
    ...retroactive as to "any compromise or waiver heretofore so made or given." 29 U.S.C. § 253(d). See McCloskey & Co. v. Eckart, 5 Cir. 1947, 164 F.2d 257. So sharply undercut by Congress even in their immediate ambit, O'Neil and Schulte inescapably provide no support to appellants. Nor do the ......
  • Shipley v. Pittsburgh & LER Co., Civ. A. No. 5586.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 8, 1949
    ...an accomplished settlement is not evidence of liability and proves nothing but that peace was brought. McCloskey & Co. v. Eckart, 5 Cir., 164 F.2d 257. The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The v......
  • Kemp v. Day & Zimmerman, Inc., No. 47198.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 1948
    ...faith and had reasonable grounds to believe that he was not violating the statute.’ In McCloskey & Co. v. Eckhart, 5 Cir., Nov. 12, 1947, 164 F.2d 257, 259, a judgment for the employee, Eckhart, was reversed and remanded on the employer's appeal. The court said: ‘All overtime earned and all......
  • Request a trial to view additional results
25 cases
  • Martinez v. Bohls Bearing Equipment Co., No. Civ.A.SA-04-CA-0120-XR.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 11, 2005
    ...to allow purely private settlements without approval from either the Department of Labor or the courts. In McCloskey & Co. v. Eckart, 164 F.2d 257 (5th Cir.1947), the Court put forward a somewhat expansive reading of section 3 of the Portal-to-Portal Act. McCloskey held a private settlement......
  • U.S. v. Allegheny-Ludlum Industries, Inc., ALLEGHENY-LUDLUM
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 1975
    ...retroactive as to "any compromise or waiver heretofore so made or given." 29 U.S.C. § 253(d). See McCloskey & Co. v. Eckart, 5 Cir. 1947, 164 F.2d 257. So sharply undercut by Congress even in their immediate ambit, O'Neil and Schulte inescapably provide no support to appellants. Nor do the ......
  • Shipley v. Pittsburgh & LER Co., Civ. A. No. 5586.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 8, 1949
    ...an accomplished settlement is not evidence of liability and proves nothing but that peace was brought. McCloskey & Co. v. Eckart, 5 Cir., 164 F.2d 257. The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The v......
  • Kemp v. Day & Zimmerman, Inc., No. 47198.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 1948
    ...faith and had reasonable grounds to believe that he was not violating the statute.’ In McCloskey & Co. v. Eckhart, 5 Cir., Nov. 12, 1947, 164 F.2d 257, 259, a judgment for the employee, Eckhart, was reversed and remanded on the employer's appeal. The court said: ‘All overtime earned and all......
  • Request a trial to view additional results

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