Bumgarner v. Joe Brown Company, No. 8745.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPICKETT, LEWIS and HICKEY, Circuit
Citation376 F.2d 749
PartiesTom S. BUMGARNER et al., Appellants, v. JOE BROWN COMPANY, Inc., a corporation, Appellee.
Docket NumberNo. 8745.
Decision Date24 April 1967

376 F.2d 749 (1967)

Tom S. BUMGARNER et al., Appellants,
v.
JOE BROWN COMPANY, Inc., a corporation, Appellee.

No. 8745.

United States Court of Appeals Tenth Circuit.

April 24, 1967.


Ben T. Lampkin, Jr., and Edwin D. Abel, Oklahoma City, Okl. (Lampkin,

376 F.2d 750
Wolfe & Sokolosky and Jerry Sokolosky, Oklahoma City, Okl., on the brief), for appellants

William D. Curlee, Oklahoma City, Okl. (Lytle, Soule & Emery, Oklahoma City, Okl., on the brief), for appellee.

Before PICKETT, LEWIS and HICKEY, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

Appellants, plaintiffs below, seek relief from an adverse and summary judgment entered by the District Court for the Eastern District of Oklahoma. Claim is made that the case was not ripe for summary consideration and that the judgment is erroneous as a matter of law. We find no merit to either contention and affirm the judgment.

Appellants were employed as truck drivers by the appellee company and, by their amended complaint, made claim for alleged unpaid overtime wages due under the provisions of section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207. The Company responded by way of motion for summary judgment, Rule 56(b), Fed.R.Civ.P., supported by an affidavit of the company's president which in substance alleged:

That the Joe Brown Company, Inc. was engaged in the general cartage business as a contract and common carrier by motor vehicle; that at all pertinent times more than four per cent of the company\'s total revenues were derived from transportation moving directly in interstate commerce between the states of Oklahoma and Texas; that all of the plaintiff-employees were full-time employees and the assignments for such work were made indiscriminately to the company drivers; and that the company had never sought nor obtained a certificate of exemption under the Motor Carrier Act, 49 U.S.C. § 304.

The appellee company concluded a right to summary judgment under section 13(b) (1) of the Fair Labor Standards Act, 29 U.S.C. § 213(b) (1), which provides:

"The provisions of section 207 of this title section 7 of the Act shall not apply with respect to —
(1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49."

In opposition to the motion for summary judgment, counsel for appellants filed his personal affidavit expressing his belief that the facts set forth...

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22 practice notes
  • Johns Hopkins University v. Hutton, Civ. No. 15098.
    • United States
    • U.S. District Court — District of Maryland
    • December 10, 1968
    ...does not meet Rule 56 standards and does not create a genuine factual dispute. The Court cited Bumgarner v. Joe Brown Company, Inc., 376 F.2d 749 (10th Cir. 1967), cert. den., 389 U.S. 831, 88 S.Ct. 297 F. Supp. 1202 99, 19 L.Ed.2d 90 (1967),21 in which it was * * * Neither conclusionary al......
  • Baker v. Penn Mut. Life Ins. Co., No. 84-1412
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 2, 1986
    ...States, 622 F.2d 516, 519 (10th Cir.1980); Bruce v. Martin-Marietta Corp., 544 F.2d 442, 445 (10th Cir.1976); Bumgarner v. Joe Brown Co., 376 F.2d 749, 750 (10th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90 Prior to the termination of his relationship with Penn Mutual in 19......
  • Warren Bank v. Camp, No. 17718
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 31, 1968
    ...and in his affidavits. Such conclusory allegations do not present issues of fact. See Fed.R.Civ.P. 56(e); Bumgarner v. Joe Brown Co., 376 F.2d 749 (10th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90 (1967); Scolnick v. Lefkowitz, 329 F.2d 716 (2d Cir.), cert. denied, 379 U.S......
  • Bruce v. Martin-Marietta Corp., MARTIN-MARIETTA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 24, 1976
    ...10 Cir., 516 F.2d 33, 36. Conclusionary allegations do not establish an issue of fact under Rule 56. Bumgarner v. Joe Brown Co., 10 Cir., 376 F.2d 749, 750. "(T)he trial court may pierce the pleadings by determining from the depositional proof, admissions and affidavits in the record whethe......
  • Request a trial to view additional results
22 cases
  • Johns Hopkins University v. Hutton, Civ. No. 15098.
    • United States
    • U.S. District Court — District of Maryland
    • December 10, 1968
    ...does not meet Rule 56 standards and does not create a genuine factual dispute. The Court cited Bumgarner v. Joe Brown Company, Inc., 376 F.2d 749 (10th Cir. 1967), cert. den., 389 U.S. 831, 88 S.Ct. 297 F. Supp. 1202 99, 19 L.Ed.2d 90 (1967),21 in which it was * * * Neither conclusionary al......
  • Baker v. Penn Mut. Life Ins. Co., No. 84-1412
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 2, 1986
    ...States, 622 F.2d 516, 519 (10th Cir.1980); Bruce v. Martin-Marietta Corp., 544 F.2d 442, 445 (10th Cir.1976); Bumgarner v. Joe Brown Co., 376 F.2d 749, 750 (10th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90 Prior to the termination of his relationship with Penn Mutual in 19......
  • Warren Bank v. Camp, No. 17718
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 31, 1968
    ...and in his affidavits. Such conclusory allegations do not present issues of fact. See Fed.R.Civ.P. 56(e); Bumgarner v. Joe Brown Co., 376 F.2d 749 (10th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90 (1967); Scolnick v. Lefkowitz, 329 F.2d 716 (2d Cir.), cert. denied, 379 U.S......
  • Bruce v. Martin-Marietta Corp., MARTIN-MARIETTA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 24, 1976
    ...10 Cir., 516 F.2d 33, 36. Conclusionary allegations do not establish an issue of fact under Rule 56. Bumgarner v. Joe Brown Co., 10 Cir., 376 F.2d 749, 750. "(T)he trial court may pierce the pleadings by determining from the depositional proof, admissions and affidavits in the record w......
  • Request a trial to view additional results

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