Barrett v. National Malleable & Steel Castings Co.

• Decision Date: 13 September 1946
• Docket Number: Civil Action No. 5325.
• Citation: 68 F. Supp. 410
• Parties: BARRETT et al. v. NATIONAL MALLEABLE & STEEL CASTINGS CO.
• Court: U.S. District Court — Western District of Pennsylvania

68 F. Supp. 410

BARRETT et al. v. NATIONAL MALLEABLE & STEEL CASTINGS CO.

Civil Action No. 5325.

District Court, W. D. Pennsylvania.

September 13, 1946.

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Walter M. Nelson, of Detroit, Mich., and George A. Dawson, of Pittsburgh, Pa., for plaintiffs.

Lee C. Shaw, of Seyfarth, Shaw & Fairweather, all of Chicago, Ill., and John C. Bane, Jr., of Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for defendant.

GOURLEY, District Judge.

This is an action brought to recover overtime compensation, liquidated damages, etc., under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Said action has been filed by forty-one (41) plaintiffs in behalf of themselves generally and for and in behalf of past and present similarly situated supervisory employees.

The defendant has appeared and moved to dismiss the Complaint on the ground that this Court does not have jurisdiction, and the defendant is, therefore, not subject to suit. The issues of law have been argued and briefs have been submitted and considered.

It appears that in the drawing of the Complaint the residence of the plaintiffs was not set forth but it is averred that each and all of the plaintiffs named and referred to were employees of the defendant. The defendant corporation operates a manufacturing plant in the City of Sharon, County of Mercer, Commonwealth of Pennsylvania; that it is licensed to do business in the Commonwealth of Pennsylvania, and has maintained and does maintain offices at the location herein set forth.

It is furthermore averred by the plaintiffs that jurisdiction is conferred on this Court by virtue of the provisions of the Judicial Code, more particularly 28 U.S. C.A. § 41(8), and by the Fair Labor Standards Act, more particularly 29 U.S.C.A. § 201 et seq.

The defendant in its motion to dismiss the complaint sets forth in support thereof as follows:

"1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted;

"2. To dismiss the action on the ground that it is in the wrong District because:

"(a) The jurisdiction of this Court is invoked solely on the ground that the action arises under the Constitution and laws of the United States, and

"(b) The defendant is a corporation incorporated under the laws of the State of Ohio, and is an inhabitant thereof, as more fully appears in the affidavit of Lee C. Shaw, attached hereto.

"3. To dismiss the action on the ground that:

"(a) It appears from the complaint that the plaintiffs are executive employees of the defendant, and

"(b) Executive employees are specifically exempted from the overtime provisions of the Fair Labor Standards Act.

"4. To dismiss this action to the extent that it asserts a right of recovery to alleged unpaid overtime compensation and liquidated damages for any period preceding six (6) years next before the commencement of the action, on the ground that such right of recovery is barred under the provisions of Title 12, Section 31, Purdon's Statutes Annotated, Penna.

"5. To dismiss this action as to all unnamed past and present supervisory employees of the defendant who are alleged to be similarly situated to the plaintiffs, and who do not within such reasonable time as the Court may fix, make themselves parties of record to this action by intervention or by written designation of one of the named plaintiffs as their agent to maintain the action for them, and to strike from the complaint all references to such unnamed employees of the plaintiff and claims asserted on their behalf, on the ground that unless all plaintiffs are parties of record, the defendant will be unable properly to prepare a responsive pleading or to prepare for trial.

"6. To dismiss this action to the extent that it asserts a right of recovery for work allegedly performed by the plaintiffs on "the seventh consecutive day", on the ground that the complaint fails to state a claim against defendant upon which relief based upon said work can be granted, and to strike all reference in the complaint to such work on such day.

"7. To order the plaintiffs to furnish a more definite statement of the following matter set forth in their complaint herein: The complaint alleges in general terms that the plaintiffs worked for the defendant for more than forty-four (44) hours each week from October 24, 1938 until October 24, 1939; and for more than forty-two (42) hours each week from October 24, 1939 until October 24, 1940; and for more than forty (40) hours each week from October 24, 1940 to the date of the filing of this complaint; but there is no allegation in the complaint as to the number of hours worked by each plaintiff in each work week during said periods, and there is no allegation as to the nature and character of the duties of each plaintiff during each work week in said period, and such allegations are necessary in order to determine the applicability of the Fair Labor Standards Act and to enable the defendant properly to prepare a responsive pleading and to prepare for trial."

Under the provisions of Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is provided, inter alia, that a motion to dismiss a complaint may be filed where it is believed that the allegations of fact set forth in the complaint fail to set forth any claim upon which relief can be granted.

It is a settled principle of law that a complaint should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of the allegations set forth therein. Furthermore, the complaint should be viewed in a light most favorable to the plaintiff, and the truth of the facts well pleaded, including facts alleged on information and belief, are admitted. Continental Collieries, Inc., v. Schober, Jr., 3 Cir., 130 F.2d 631; Federal Rules of Civil Procedure, rules 8(f) and 12(b) (6), 28 U.S.C.A. following section 723c; Carroll et al. v. Morrison Hotel Corp., 7 Cir., 149 F.2d 404; Garbutt v. Blanding Mines Co., 10 Cir., 141 F.2d 679; Galbreath v. Metropolitan Trust Co. of California et al., 10 Cir., 134 F.2d 569.

It is well settled that the District Court has jurisdiction under Section 24(8) of an action brought under Section 16(b) of the Fair Labor Standards Act, 29 U.S. C.A. § 216(b), irrespective of diversity of citizenship or the amount involved. Williams v. Jackson Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914.

The section of the Fair Labor Standards Act just referred to provides, inter alia, as follows:

"Action to recover such liability against an employer by an employee or employees affected may be maintained in any court of competent jurisdiction by any one or more employees for or in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated."

Under the terms of Judicial Code, more particularly 28 U.S.C.A. § 41(1), it is provided, inter alia, as follows:

"The district courts shall have original jurisdiction: * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000, and (a) arises under the Constitution or laws of the United States, * * * or (b) Is between citizens of different States."

Under the terms of Judicial Code, more particularly 28 U.S.C.A. § 41(8), it is provided, inter alia, as follows:

"The district courts shall have original jurisdiction * * * of all suits and proceedings arising under any law regulating commerce."

Under the terms of Judicial Code, more particularly 28 U.S.C.A. § 112(a), it is provided, inter alia, as follows:

"No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

Although the defendant asserted in its motion and argued that the Court had no jurisdiction, it is clear that the defense which the defendant seeks to invoke is that of improper venue rather than one of jurisdiction of the subject matter of the action. It has been consistently held by the Supreme Court of the United States, and in the Third Judicial Circuit, that Section 51 of the Judicial Code, 28 U.S.C.A. § 112, accords to the defendant a personal privilege respecting the venue of the suit against him, which he may assert or waive at his election. Robinson v. Coos Bay Pulp Corp., 3 Cir., 147 F.2d 512, 513; Lee v. Chesapeake & Ohio R. Co., 260 U.S. 653, 655, 43 S.Ct. 230, 67 L.Ed. 443.

The defendant admitted at the time of argument and in its brief that it is a corporation duly organized and existing under and by virtue of the laws of the State of Ohio, and maintains its corporate offices and its principal place of business in the City of Cleveland, State of Ohio; that the Company operates one of its plants at Sharon, Mercer County, Pennsylvania, maintains offices at said location, and that all of the work done by the plaintiffs in the within action was performed at the plant located at Sharon, Pennsylvania. It is furthermore admitted that the defendant appointed W. M. Ewing, who is also General Manager of the plant situate at Sharon, Pennsylvania, as a resident agent in the State of Pennsylvania.

Under the law of the Commonwealth of Pennsylvania it is provided that a foreign corporation doing business in Pennsylvania shall designate the Secretary of the Commonwealth and his successor in office as its true and lawful attorney upon whom all lawful process in any action or proceeding against it may be served; that the service of process upon the Secretary of the...