Divine v. Levy
Decision Date | 29 January 1942 |
Docket Number | Civ. A. No. 365. |
Citation | 45 F. Supp. 49 |
Parties | DIVINE v. LEVY et al. |
Court | U.S. District Court — Western District of Louisiana |
LeRoy Smallenberger, Jr., of Shreveport, La., for plaintiff.
Elias Goldstein and Edward S. Klein, both of Shreveport, La., for defendants.
There is no cause for the court to change or modify the second opinion rendered, and found at 39 F.Supp. 44.
Findings of Fact (a) and Conclusions of Law (b).
(a) Wages earned prior to September 21, 1939, were earned more than one year before the filing date of the suit of plaintiff.
(b) Article 3534 of the Civil Code of Louisiana applies and the wages (overtime included) earned prior to September 21, 1939, are barred by limitation.
(a) The language taken from Section 16(b) of the Act, 29 U.S.C.A. § 216(b), "and in an additional equal amount as liquidated damages" means "damages" and does not mean a "penalty," though the Act is headed at Section 16 as "Penalties."
(b) Article 3536 of the Civil Code of Louisiana, which includes in the classification of actions prescribed by one year those resulting from offenses or quasi offenses, applies, and the plaintiff is denied, also, the "additional equal amount." Cf. Articles 2293 and 2294 of the Civil Code of Louisiana. See Knoop v. Blaffer, 39 La.Ann. 23, 6 So. 9; Rosenberg & Sons v. Waguespack, 167 La. 451, 119 So. 423; Collins v. Hancock, No. 82343, First Judicial District Court, Parish of Caddo; Terner v. Glickstein & Terner, 283 N.Y. 299, 28 N.E.2d 846; City of New Orleans v. Southern Bank, 31 La.Ann. 560; see, also, Note 2, 28 U.S.C.A. following Section 791. Cf. Dawkins v. Mitchell et al., 149 La. 1038, 90 So. 396, and Smalley v. Bernstein, 165 La. 1, 115 So. 347.
We borrow the following quotation from an article entitled "Employee Remedy Under the FLSA" by George W. Crockett, Jr., Associate Attorney, United States Department of Labor, dated September 15, 1941:
(b) By analogy, attorney's fees under the Act, which could be allowed for the part of plaintiff's claim barred by limitation, are denied.
(a) From all the evidence, we find as a fact that plaintiff worked on an average, for the period allowed, eight hours per day as a pumper for the defendants.
(a) We find that the wages paid by the defendants during the period allowed are $61 per month to December 30, 1939, and $71 per month for the rest of the time of employment.
In arriving at the above average daily time of eight hours for the total period of employment less the portion barred by limitation, and in arriving at the monthly rate of wages as above fixed, the Court is giving and has given allowance for and consideration to the extra work done by plaintiff and paid for by the defendants as well as to the extra work done by the plaintiff for Mr. Hall and...
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