MEMORANDUM AND ORDER
The Secretary of Labor filed this action pursuant to 29 U.S.C. § 217, seeking (1) to permanently enjoin defendants from violating the provisions of Sections 15(a) (2) and 15(a) (5) of The Fair Labor Standards Act of 1938 (as amended 29 U.S.C. § 201 et seq.) and (2) such further relief as appropriate, including the restraint of any withholding of payment of overtime compensation found by the Court to be due to employees under the Act. Defendants filed a timely demand for a jury trial and before the Court is plaintiff's motion to strike defendants' request for a jury trial.
Sections 15(a) (2) and 15(a) (5) of the Fair Labor Standards Act declare it unlawful to violate the wages and hours provisions of the Act, or to fail to comply with reporting provisions of the Act. Violators of these sections may be held civilly liable in a suit pursuant to Section 16(b) by an employee for back wages or in an enforcement action by the Secretary of Labor under Section 17.
The Courts have been virtually unanimous in concluding that a defendant in an action arising under Section 17 of the Fair Labor Standards Act is not entitled to a trial by jury. See e.g. Sullivan v. Wirtz, 359 F.2d 426 (5th Cir.) cert. denied, 385 U.S. 852, 17 L. Ed. 2d 80, 87 S. Ct. 94 (1966); Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965); Hodgson v. American Can Co., 328 F. Supp. 261 (E.D. Pa. 1971); Hodgson v. Hill, 53 F.R.D. 265 (E.D.N.C. 1971); Wirtz v. L.A. Swann Oil Co., 293 F. Supp. 211 (E.D. Pa. 1968); Wirtz v. Riccio, 264 F. Supp. 134 (N.D. Pa. 1967); Wirtz v. Wheaton Glass Co., 253 F. Supp. 93 (D.N.J. 1966); Wirtz v. Robert E. Bob Adair Co., 224 F. Supp. 750 (W.D. Ark. 1963); Wirtz v. Alapaha Yellow Pine Products, Inc., 217 F. Supp. 465 (D. Ga. 1963). See also cases cited in 5 Moore, Federal Practice para. 38.27, note 12.
The courts have found that neither the Seventh Amendment nor Section 17 itself require a trial by jury in cases brought pursuant to Section 17 of the Fair Labor Standards Act.
Under the Seventh Amendment, "in Suits at common law", the right of trial by jury shall be preserved. It is well established that no jury trial is required where an action is in equity or where, as here, the action is brought pursuant to statute, where no analogous common law right or remedy previously existed. Defendants, here, concede that if this action sought an injunction, restraining violations of the Act alone, they would have no right to a trial by jury. Defendants, however, argue that since the Secretary seeks the restraint of any withholding of payment of overtime compensation, in addition to an injunction against violations of the Act, this action involves a blending of legal and equitable issues, requiring a trial by jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959). This argument was raised and rejected in Wirtz v. Jones, supra, where the Fifth Circuit concluded:
"* * * [The] purpose of the injunction to restrain the withholding of wages due is not to collect a debt owed by an employer to his employee but to correct a continuing offense against the public interest." 340 F.2d at 904.