Bonner v. Elizabeth Arden, Inc.

Citation177 F.2d 703
Decision Date02 November 1949
Docket NumberDocket 21412.,No. 46,46
PartiesBONNER et al. v. ELIZABETH ARDEN, Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

David Friedman, New York City, attorney for plaintiffs-appellants.

Townley, Updike & Carter, New York City, attorneys for defendant-appellee; J. Howard Carter, John J. Macchia, New York City, of counsel.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This appeal calls for decision as to whether the first count of the amended complaint in a suit brought by employees of the appellee to recover unpaid overtime compensation, liquidated damages and attorneys' fees pursuant to § 16(b), states a cause of action over which the district court had jurisdiction after the effective date of the Portal to Portal Act of 1947, 29 U.S.C.A. § 251 et seq., and, if not, whether a proposed amendment made after that date would remedy the defect. Also to be determined is whether a second count for damages for the discharge of one of the plaintiffs for instituting this suit states a cause of action over which the district court had jurisdiction under § 15(a) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (3), and, if not, whether a proposed amendment would remedy the defect. The district court dismissed the amended complaint and denied leave to file the proposed additional amended complaint.

The activities of the plaintiffs which formed the basis of the first cause of action alleged in the original complaint, filed January 22, 1947, were changing their clothes, doing "other preparatory work" and walking to their regular positions of employment inside the plant before their regular working time began, as well as changing their clothes and washing up after their regular working time ended. The amended complaint which was dismissed alleged nothing which would give the court jurisdiction after the effective date of the Portal to Portal Act and the dismissal was clearly right under § 2 of that Act, 29 U.S.C.A. § 252. Battaglia v. General Motors Corporation, 2 Cir., 169 F.2d 254; Seese v. Bethlehem Steel Co., 4 Cir., 168 F.2d 58.

The dismissal of the second count was also necessary and proper since the Fair Labor Standards Act, supra, confers no jurisdiction upon the court over a civil action to recover damages for the discharge of an employee in violation of the statute. Such action must be redressed, if at all, by criminal proceedings in conformity with § 15(a) (3) of the Act. Cf. United States v. Chiumento, D.C.N.J., 49 F.Supp. 551.

The proposed amended complaint added to the first count allegations that "it was the custom and practice in this industry to pay these employees for overtime hours spent in preliminary and postliminary activities prior to and subsequent to the performance of their duties" and that "pursuant to the custom in the trade such activities were compensable work." But there was no allegation, as § 2 of the statute requires, in respect to activities engaged in prior to May 14, 1947, to the effect that these activities were compensable either by a contract between the employee, or someone acting for him, and the employer in effect at the time they took place, or in accordance with a custom or practice at the place of employment covering such activities, in effect at the time they took place, and not inconsistent with a contract binding both employees and employer and in effect at the time. Consequently as regards activities engaged in prior to May 14, 1947, the first count of the proposed amended complaint failed to comply with the jurisdictional requirements of § 2 of the Portal to Portal Act, supra. See Markert v. Swift & Co., 2 Cir., 173 F.2d 517, 520; Code Fed.Regs.Supp.1947, Title 29, § 790.10(d).

The proposed amended complaint, however, was dated ...

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  • Boddorff v. Publicker Industries, Inc.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • March 25, 1980
    ...Post Co., 105 U.S. App.D.C. 374, 267 F.2d 561, cert. denied, 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544 (1959), Bonner v. Elizabeth Arden, Inc., 177 F.2d 703 (2d Cir. 1949). Finally, the two primary purposes of the ADEA, making the victim of age discrimination whole and deterring future vi......
  • Harris v. Garner
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 27, 2000
    ...filed." Id.; see, e.g., La Salle Nat'l. Bank v. 222 East Chestnut St. Corp., 267 F.2d 247, 252 (7th Cir.1959); Bonner v. Elizabeth Arden, Inc., 177 F.2d 703, 705 (2d Cir.1949). But see Camilla Cotton Oil Co. v. Spencer Kellogg and Sons, Inc., 257 F.2d 162, 165, 167-68 (5th Cir.1958) (allowi......
  • Bush v. State Industries, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 1979
    ...Post, 105 U.S.App.D.C. 374, 267 F.2d 651, Cert. denied, 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544 (1959); Bonner v. Elizabeth Arden, 177 F.2d 703 (2d Cir. 1949); Bowe v. Burns, 137 F.2d 37 (3d Cir. 1943), with Boll v. Federal Reserve Board of St. Louis, 365 F.Supp. 637 (E.D.Mo.1973), Aff'......
  • Martinez v. Behring's Bearings Service, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 13, 1974
    ...Post Co., 1959, 105 U.S.App.D.C. 374, 267 F.2d 651, cert. den., 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544; Bonner v. Elizabeth Arden, Inc., 2 Cir. 1949, 177 F.2d 703; Britton v. Grace Line, Inc., S.D.N.Y.1962, 214 F.Supp. 295. Thus, among cases construing the Fair Labor Standards Act, the......
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1 provisions
  • 28 APPENDIX U.S.C. § 15 Amended and Supplemental Pleadings
    • United States
    • US Code 2023 Edition Title 28 Appendix Federal Rules of Civil Procedure Title III. Pleadings and Motions
    • January 1, 2023
    ...a claim upon which relief can be granted, leave to serve a supplemental complaint must be denied. See Bonner v. Elizabeth Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65 F.Supp. 548 (E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d Cir. 1946), cert. denied, Senderowitz......

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