Ufland v. Buffalo Courier Express, Inc.
| Decision Date | 11 September 1974 |
| Docket Number | No. Civ. 1973-195.,Civ. 1973-195. |
| Citation | 394 F. Supp. 199 |
| Parties | Robert UFLAND, Plaintiff, v. The BUFFALO COURIER EXPRESS, INC., Defendant. |
| Court | U.S. District Court — Western District of New York |
John T. Elfvin, U. S. Atty. (Edward J. Wagner, Buffalo, N. Y., of counsel), for plaintiff.
Falk, Siemer, Glick, Tuppen & Maloney, Buffalo, N. Y. (Edwin H. Wolf, Buffalo, N. Y., of counsel), for defendant.
This action was brought by plaintiff to recover lost wages, sick benefits and vacation pay to which plaintiff alleges he is entitled by virtue of defendant's failure to reemploy him on June 24, 1968 following his release from military service. The action is brought pursuant to the Universal Military Training and Service Act, 50 U.S.C.App. section 459(d), and was commenced by service of summons and complaint on defendant on April 24, 1973.1
Defendant has moved to dismiss under Rule 12(b), Federal Rules of Civil Procedure, on the ground that the action is barred by the statute of limitations.
Plaintiff was employed by defendant on May 25, 1967. On September 10, 1967, he left the employment of the defendant and entered the United States Army. On June 24, 1968, after his release from military service plaintiff reported to work at defendant's place of business. On the following day, after plaintiff was given a physical examination, he was denied employment. He was not reemployed until January 26, 1969. He remained employed until May 2, 1969, when his employment was terminated, allegedly as a result of a deteriorated medical condition.
Defendant contends that the action is barred by the three year statute of limitations found in section 214 of the New York Civil Practice Law and Rules applicable to actions to recover liability created or imposed by statute. Plaintiff asserts that the action at bar is equitable in nature, and any delay must be measured by the doctrine of laches. In the alternative, plaintiff contends that the six year statute of limitations imposed on contract actions applies in this case, and that, as a result this action is not barred.
In suits brought under the Veterans Reemployment Rights Act, a veteran sues "as a veteran asserting special rights bestowed upon him in furtherance of a federal policy to protect those who have served in the Armed Forces." McKinney v. Missouri-Kansas-Texas Railroad Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958). Whether the veteran's claim is for reinstatement and back pay, restitution of seniority rights or wage rate adjustments does not alter the basically equitable nature of the rights asserted. The claim for back wages in this case is, therefore, a derivative of plaintiff's rights of reinstatement and restoration to his...
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...1061 (1977); Stinner v. United States Steel Corp., 73 CCH Lab. Cas. P 14,352 at 29,126 (W.D.Pa.1974); Ufland v. Buffalo Courier Express, Inc., 394 F.Supp. 199, 201 (W.D.N.Y.1974); Accord, Delman v. Federal Products Corp., 251 F.2d 123, 127 (1st Cir. 1958); Brundage v. United States, 504 F.2......
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...aff'd., 606 F.2d 800 (8th Cir.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Ufland v. Buffalo Courier Express, 394 F.Supp. 199 (W.D.N.Y.1974). It is argued that the remedy of back pay is more appropriately characterized as compensatory, legal damage, and therefor......
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