Gates v. Graham Ice Cream Co., 88 Civ.

• Decision Date: 01 March 1940
• Docket Number: No. 88 Civ.,88 Civ.
• Citation: 31 F. Supp. 854
• Parties: GATES v. GRAHAM ICE CREAM CO.
• Court: U.S. District Court — District of Nebraska

31 F. Supp. 854

GATES v. GRAHAM ICE CREAM CO.

No. 88 Civ.

District Court, D. Nebraska, Omaha Division.

March 1, 1940.

Webb, Beber, Klutznick & Kelley and Loyal G. Kaplan, all of Omaha, Neb., for plaintiff.

Crossman & Barton, of Omaha, Neb., for defendant.

DONOHOE, District Judge.

We have presented for our consideration a Motion to Dismiss filed by the defendant, which in purpose challenges the jurisdiction of the Court.

The complaint in substance alleges that the action arises under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., and that this is a suit under the laws of the United States regulating commerce within the contemplation of the provisions of Chapter 2, Section 24, Subdivision 8 of the Judicial Code of the United States, 28 U.S. C.A. § 41(8), and further that it is a suit to enforce a penalty incurred under the laws of the United States as contemplated by Subdivision 9 of the above referred to section and chapter of said Judicial Code, 28 U.S.C.A. § 41(9). In paragraph 2, it is charged "that the defendant is a corporation * * * engaged in the manufacture of ice cream and beverages; that said corporation engages in interstate commerce, and in the production of goods for commerce within the meaning of the provisions of the Fair Labor Standards Act of 1938." By paragraphs 3 and 4, it is charged that the plaintiff and his wife, for whom he brings suit, "was employed by the defendant in the aforesaid business". Judgment is prayed in the sum of $1,002.44. Diversity of citizenship is not claimed or alleged.

The Motion of the defendant challenges the sufficiency of the foregoing allegations to show jurisdiction in the Court, or to bring the action within the purview of the Fair Labor Standards Act. The specific point stressed by the defendant is that the complaint does not allege facts showing or tending to show that the plaintiff and his wife, in their employment by the defendant, were engaged in commerce, or in the production of goods for commerce, while on the other hand, the plaintiff contends that the allegation contained in paragraphs 3 and 4 — that the plaintiff was employed by the defendant in the aforesaid business — is a sufficient allegation in that respect. The point stressed being, that while the complaint is sufficient to show that the defendant was engaged in commerce, the allegation with reference to the plaintiff is not sufficient to show that the plaintiff was assisting the defendant in such engagement, or that the work performed by the plaintiff and his wife was performed in the production of goods for commerce.

Sections 6 and 7, pertaining to minimum wages and maximum hours, of the Act, provides:

"Sec. 6 § 206. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates —

"(1) during the first year from the effective date October 24, 1938 of this section, not less than 25 cents an hour,

"(2) during the next six years from such date, not less than 30 cents an hour * * *."

"Sec. 7 § 207. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce —

"(1) for a workweek longer than forty-four hours during the first year from the effective date October 24, 1938 of this section,

"(2) for a workweek longer than forty-two hours during the second year from such date * * * unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

Section 3(b) defines the word "commerce", as used in the Act, as follows; "(b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."

Section 3(j) defines the word "produced", as used in the Act, as follows: "(j) `Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling,...