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BARRETT v. NATIONAL MALLEABLE & STEEL CASTINGS CO.

September 13, 1946

BARRETT et al.
v.
NATIONAL MALLEABLE & STEEL CASTINGS CO.



The opinion of the court was delivered by: GOURLEY

This is an action brought to recover overtime compensation, liquidated damages, etc., under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Said action has been filed by forty-one (41) plaintiffs in behalf of themselves generally and for and in behalf of past and present similarly situated supervisory employees.

The defendant has appeared and moved to dismiss the Complaint on the ground that this Court does not have jurisdiction, and the defendant is, therefore, not subject to suit. The issues of law have been argued and briefs have been submitted and considered.

 It appears that in the drawing of the Complaint the residence of the plaintiffs was not set forth but it is averred that each and all of the plaintiffs named and referred to were employees of the defendant. The defendant corporation operates a manufacturing plant in the City of Sharon, County of Mercer, Commonwealth of Pennsylvania; that it is licensed to do business in the Commonwealth of Pennsylvania, and has maintained and does maintain offices at the location herein set forth.

 It is furthermore averred by the plaintiffs that jurisdiction is conferred on this Court by virtue of the provisions of the Judicial Code, more particularly 28 U.S.C.A. § 41(8), and by the Fair Labor Standards Act, more particularly 29 U.S.C.A. 201 et seq.

 The defendant in its motion to dismiss the complaint sets forth in support thereof as follows:

 '1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted;

 '2. To dismiss the action on the ground that it is in the wrong District because:

 '(a) The jurisdiction of this Court is invoked solely on the ground that the action arises under the Constitution and laws of the United States, and

 '(b) The defendant is a corporation incorporated under the laws of the State of Ohio, and is an inhabitant thereof, as more fully appears in the affidavit of Lee C. Shaw, attached hereto.

 '3. To dismiss the action on the ground that:

 '(a) It appears from the complaint that the plaintiffs are executive employees of the defendant, and

 '(b) Executive employees are specifically exempted from the overtime provisions of the Fair Labor Standards Act.

 '4. To dismiss this action to the extent that it asserts a right of recovery to alleged unpaid overtime compensation and liquidated damages for any period preceding six (6) years next before the commencement of the action, on the ground that such right of recovery is barred under the provisions of Title 12, Section 31, Purdon's Statutes Annotated, Penna.

 '6. To dismiss this action to the extent that it asserts a right of recovery for work allegedly performed by the plaintiffs on 'the seventh consecutive day', on the ground that the complaint fails to state a claim against defendant upon which relief based upon said work can be granted, and to strike all reference in the complaint to such work on such day.

 '7. To order the plaintiffs to furnish a more definite statement of the following matter set forth in their complaint herein: The complaint alleges in general terms that the plaintiffs worked for the defendant for more than forty-four (44) hours each week from October 24, 1938 until October 24, 1939; and for more than forty-two (42) hours each week from October 24, 1939 until October 24, 1940; and for more than forty (40) hours each week from October 24, 1940 to the date of the filing of this complaint; but there is no allegation in the complaint as to the number of hours worked by each plaintiff in each work week during said periods, and there is no allegation as to the nature and character of the duties of each plaintiff during each work week in said period, and such allegations are necessary in order to determine the applicability of the Fair Labor Standards Act and to enable the defendant properly to prepare a responsive pleading and to prepare for trial.'

 Under the provisions of Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, it is provided, inter alia, that a motion to dismiss a complaint may be filed where it is believed that the allegations of fact set forth in the ...


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