Defendant argues there is no claim stated upon which relief can be granted. He contends, however, that we should not alone dismiss under Rule 12(b, h), F.R.C.., 28 U.S.C.A., and see Rule 8(a), Id. but that we should allow summary judgment under Rule 56(b), F.R.C.P.
The record consists of the complaint, defendant's amended answer, a stipulation of the respective counsel as to certain facts and of affidavits presented in defendant's behalf in connection with its motion for summary judgment. Plaintiff did not file any counter affidavits and, despite an opportunity afforded to do so, did not offer any amendment to the complaint.
In the complaint plaintiff makes no averment of contract, custom or practice as to the activity in question, and in no manner attempts to meet defendant's assertion as to its reliance upon prior administrative approval. In defendant's affidavits it is made clear that the understanding of the parties was that the activity in question was not to be compensable and that the plan had had prior administrative approval as well as the prior consent and acquiescence of all employees involved.
The record clearly demonstrates:
(1) that there was no contract, custom or practice under which the activity in question was to be compensable;
(2) that the 2 platoon system and the method of payment thereunder was approved prior to its adoption by the War Department, by the Wage and Hour Division of the Department of Labor, and by the plaintiffs;
(3) that defendant relied in good faith upon the prior administrative approvals in placing the 2 platoon system in top operation.
The Portal-to-Portal Act is constitutional. Thomas v. Carnegie-Illinois Steel Corp., 3 Cir., 1949, 174 F.2d 711.
The complaint does not meet the jurisdictional requirements as to contract, custom and practice ( Battaglia v. General Motors Corp., 2 Cir., 1948, 169 F.2d 254; Hoyt v. Merritt-Chapman & Scott Corp., D.C.D.N.J., 79 F.Supp. 106; Grazeski v. Federal Shipbuilding & Dry Dock Co., D.C.D.N.J., 76 F.Supp. 845; Murray v. Homestead Value Mfg. Co., D.C.W.D. Pa., 84 F.Supp. 572, affirmed sub nom Thomas v. Carnegie-Illinois Steel Corp., 3 Cir., 1949, 174 F.2d 711; Medrick v. Textile Mach. Works, Inc., D.C., 79 F.Supp. 567; Ackerman v. J. I. Case Co., D.C., 74 F.Supp. 639; Welsh v. W. J. Dillner Transfer Co., D.C., 91 F.Supp. 685, by Follmer, J., opinion dated June 30, 1950), nor as to the defense of good faith reliance upon administrative approval. Rogers Cartage Co. v. Reynolds, 6 Cir., 1948, 166 F.2d 317; Lasater v. Hercules Powder Co., 6 Cir., 1948, 171 F.2d 263; Darr v. Mutual Life Ins. Co. of N.Y., 2 Cir., 1948, 169 F.2d 262; Seese v. Bethlehem Steel Co., D.C., 74 F.Supp. 412, affirmed 1948, 4 Cir., 168 F.2d 58.
Not only is there a failure to state a cause of action upon which relief can be granted and lack of jurisdiction of the subject matter, but it is equally obvious from an examination of the unchallenged and uncontradicted affidavits of the defendant that there was no contract, custom or practice upon which plaintiff might base his claim. There is therefore no substantive right in the plaintiff to recover, and summary judgment should be entered.
It is well settled that on motions to dismiss and for summary judgment, affidavits filed in their support may be considered for the purpose of ascertaining whether an issue of fact is presented but they cannot be considered as a basis for deciding a fact issue. Frederick Hart & Co. Inc., v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580. It is now well settled that summary judgment may be entered for either party if pleadings, depositions and admissions on file and affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016 at page 1018.
As to the propriety of granting summary judgment rather than a motion to dismiss, see Hornbeck v. Dain Mfg. Co., D.C., 7 F.R.D. 605; Kirkham v. Pacific Gas & Elec. Co., D.C., 78 F.Supp. 658; cf. Coyle v. Philadelphia Macaroni Co., Inc., D.C., 9 F.R.D. 331.
In view of the foregoing, an appropriate order directing that summary judgment be entered in favor of the defendant will be filed herewith.