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MITCHELL v. LANCASTER MILK CO.

July 6, 1960

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
LANCASTER MILK COMPANY, Defendant



The opinion of the court was delivered by: FOLLMER

This matter is presently before the Court on motions of the defendant to dismiss the action because the Complaint and 'Amended Complaint' fail to state a claim against the defendant upon which relief can be granted, or, in the alternative, to dismiss the action for lack of jurisdiction.

On December 16, 1959, plaintiff filed a Complaint against defendant seeking to recover unpaid overtime compensation allegedly due Clyde Vanasdlen, an employee of the defendant, under the provisions of the Fair Labor Standards Amendments of 1949 (Act of October 26, 1949, c. 736, 63 Stat. 910, 29 U.S.C.A. § 201 et seq.).

 On February 12, 1960, plaintiff filed what he designated an 'Amended Complaint' against said defendant seeking to recover unpaid overtime compensation allegedly due to John J. Strevig (also an employee of defendant) under the provisions of the aforesaid Fair Labor Standards Amendments of 1949. It is actually an amendment to the Complaint which does not repeat the allegations of the original Complaint as to Clyde Vanasdlen but merely adds allegations as to the additional employee, John J. Strevig.

 1. A. of both the motions to dismiss the Complaint and the 'Amended Complaint' allege:

 'The allegations in the Complaint ('Amended Complaint') bring the case within the exception of Section 7(c) of the Fair Labor Standards Act, as amended, relating to first processing of milk;'

 1. B. of the motion to dismiss the Complaint alleges:

 'The complaint (as to Clyde Vanasdlen) was filed more than two years after August 15, 1957, the beginning date of the alleged violation, and, therefore, is barred by the limitation in Section 6(a) of the Portal-to-Portal Act which amended the Fair Labor Standards, Act;'

 1. B. of the motion to dismiss the 'Amended Complaint' alleges:

 'The Amended Complaint was filed more than two years after August 21, 1957, the beginning date of the alleged violation, as to John J. Strevig and, therefore, is barred by the limitation in Section 6(a) of the Portal-to-Portal Act, which amends the Fair Labor Standards Act;'

 1. C. of the motion to dismiss the Complaint alleges:

 'The Complaint fails to show authority in Mrs. Clyde Vanasdlen or any other person to act on behalf of or to receive payments alleged to be due to Clyde Vanasdlen.'

 1. C. of the motion to dismiss the 'Amended Complaint' alleges:

 'The Amended Complaint states a separate cause of action from the original Complaint, involving a distinct and different period under the applicable statute of limitations, and therefore the two cannot be combined in one suit.'

 2. of both motions allege, in slightly different verbiage, respectively:

 (2. in first motion.) 'In the alternative, to dismiss the action for lack of jurisdiction over the subject matter in that the Secretary of Labor has no authority to sue, under Section 16(c) of the Fair Labor Standards Act, unless his complaint alleges that the case involves an issue of law which has been settled finally by the Courts.'

 (2. in second motion.) 'In the alternative, to dismiss the action for lack of jurisdiction over the subject matter in that the Secretary of Labor has no authority to sue on the cause of action alleged in the Amended Complaint, under Section 16(c) of the Fair Labor Standards Act, unless his Amended Complaint alleges that the case involves an issue of law which has been settled finally by the Courts.'

 As to 3 (A. B. and C.) in both motions, defendant, in its brief, states that 'the plaintiff has now given to defendant the information requested, and defendant hereby withdraws its motion for a more definite statement.' The motion for a more definite statement is, therefore, moot.

 The reasons given by the defendant under 1 A. (both motions) will be considered first.

 The allegations of the original Complaint and as amended bring the case within the exception of Section 7(c) of the Fair Labor Standards Act, as amended ...


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