Delman v. FEDERAL PRODUCTS CORPORATION
| Decision Date | 02 November 1955 |
| Docket Number | Civ. A. No. 1883. |
| Citation | 136 F. Supp. 241 |
| Parties | Clement J. DELMAN v. FEDERAL PRODUCTS CORPORATION. |
| Court | U.S. District Court — District of Rhode Island |
Thomas W. Pearlman, Providence, R. I., for plaintiff.
Wilfred E. McKenna, Edward J. Plunket, Providence, R. I., for defendant.
This action was instituted under the provisions of Section 8 of the Selective Training and Service Act of 1940, as amended, Title 50 U.S.C.A.Appendix § 308, and as extended by the Service Extension Act of 1941, Title 50 U.S.C.A. Appendix, § 357. The complaint was filed on June 30, 1955.
In his complaint the plaintiff alleges that he was first employed by the defendant on or about January 21, 1941; that he left his employment as a "gage-tool-maker" to enter the armed forces of the United States on July 24, 1944, and was honorably discharged therefrom on June 25, 1946; that he possesses a certificate of satisfactory military service, and applied for reinstatement with the defendant within ninety days after his honorable discharge, and was and still is qualified to perform the duties of his position; that the defendant refused and continued to refuse to reinstate him in his position until May 30, 1955, at which time he was reinstated by the defendant. He further alleges that said reinstatement was not in accordance with the Act because, as he says, he was required to accept a lower rate of pay and to lose certain seniority rights and benefits to which he alleges he was entitled under the Act. He seeks damages for the defendant's alleged failure to reinstate him prior to May 30, 1955, and an order requiring the defendant to reinstate him with seniority rights and other benefits to which he claims to be entitled.
The defendant has moved to dismiss the action on the following grounds, viz.: (1) because the complaint fails to state a claim against the defendant upon which relief can be granted; (2) because the supposed cause of action in the complaint mentioned did not accrue to the plaintiff at any time within six years next before the commencement of this action; and (3) because the plaintiff has been guilty of laches.
After the filing of this motion the plaintiff moved to strike therefrom grounds (2) and (3) thereof, contending that these grounds could be set forth properly only as affirmative defenses by way of answer. Plaintiff's motion seems superfluous for, by his opposition to the defendant's motion, he has raised the same questions — may the defenses of statute of limitations and laches be asserted by way of a motion to dismiss? He contends that they are affirmative defenses and that under Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., they must be made by affirmative pleadings. Ordinarily this is so. However, under Rule 9(f) of the Federal Rules of Civil Procedure, for the purpose of testing the sufficiency of a pleading averments of time are material. Averments of time being material, a motion to dismiss because the statute of limitations has run may be utilized, without supporting affidavits, whenever the time alleged in the complaint shows that the action has not been brought within the statutory period. Berry v. Chrysler Corporation, 6 Cir., 150 F.2d 1002; Panhandle Eastern Pipe Line Co. v. Parish, 10 Cir., 168 F.2d 238; Kincheloe v. Farmer, 7 Cir., 214 F.2d 604; 2 Moore's Federal Practice, 2nd Ed. § 9.07, Page 1920.
Since the defense of statute of limitations may be raised properly by motion to dismiss where it affirmatively appears upon the face of the complaint that the action is barred by the statute of limitations, the question arises as to what is the statute of limtiations governing this action. The Selective Training and Service Act of 1940 does not fix the time within which an action based on the denial of alleged reemployment rights must be brought, and Congress has not by any other statute prescribed such a period. In the absence of such action by Congress the state statute of limitations of the state where the cause of action arose and suit is brought shall apply and prescribe the time in which an action shall be brought to enforce it. Campbell v. City of Haverhill, 155 U.S. 610...
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Hankinson v. Pennsylvania Railroad Company
...may be raised by a motion to dismiss. Wagner v. New York, Ont. & West. Ry., D.C.M.D. Pa.1956, 146 F.Supp. 926; Delman v. Federal Products Corp., D.C.D.R.I.1955, 136 F.Supp. 241; Shandelman v. Schuman, D.C.E.D.Pa.1950, 92 F.Supp. In pertinent part, the applicable statute (28 U.S.C.A. § 2401(......
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Greene v. Union Mut. Life Ins. Co. of America
...problem in using a motion to dismiss for purposes of raising a statute of limitations defense."), with Delman v. Federal Products Corp., 136 F.Supp. 241, 243 (D.R.I.1955) (defense of limitations may be raised by motion to dismiss if it appears on the face of the complaint that the action is......
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Newburgh v. FLORSHEIM SHOE COMPANY
...that "a cause of action accrues from the very first moment that the right to institute court action arises." Delman v. Federal Products Corp., 136 F.Supp. 241, 244 (D.R.I.), affirmed 251 F.2d 123, 128 (1 Cir., 1958). In affirming the decision of the District Court, the Court of Appeals "The......
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Leonick v. JONES & LAUGHLIN STEEL CORPORATION, Civ. A. No. 17346.
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