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FREUDENBERG v. HARVEY

October 9, 1973

Janet Freudenberg
v.
Carole Harvey, Individually and trading as CCW Harvey Personnel Consultants


Fogel, J.


The opinion of the court was delivered by: FOGEL

FOGEL, J.

 Plaintiff, Janet Freudenberg, has brought this action against Carole Harvey, individually and trading as "CCW Harvey Personnel Consultants", for alleged violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.

 Defendant has not answered the complaint, but has filed instead a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, contending that the Court lacks jurisdiction over both the person of the defendant and the subject matter of the action. The sole issue raised by defendant in her motion and brief in support thereof is the applicability of 29 U.S.C. § 213(a) (2), which exempts certain employers from the minimum wage and overtime pay provisions of the Fair Labor Standards Act. Defendant claims her business falls within the exemption created by § 213(a) (2).

 The allegation of lack of personal jurisdiction has not been pursued by defendant; in any event, there appears to be no basis for this assertion, since defendant concedes that she does business in the Commonwealth of Pennsylvania. The record of service of process by the United States Marshal shows that defendant was personally served at her place of business at 1700 Market Street, Philadelphia, Pennsylvania. These facts satisfy the requirements for personal jurisdiction over defendant. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877). This clearly frivolous defense is therefore rejected summarily.

 Defendant's second basis for her motion to dismiss is lack of jurisdiction over the subject matter. She argues this Court is without jurisdiction on the ground that her business falls within the exemption established by 29 U.S.C. § 213(a) (2) which excludes certain employers from the minimum wage and overtime pay provisions of the Fair Labor Standards Act.

 Section 213(a) (2) provides as follows:

 
§ 213. Exemptions
 
(a) The provisions of section 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to --
 
* * * (2) any employee employed by any retail or service establishment (except an establishment or employee engaged in laundering, cleaning, or repairing clothing or fabrics or an establishment engaged in the operation of a hospital, institution, or school described in section 203(s) (4) of this title), if more than 50 per centum of such establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 203(s) of this title or such establishment has an annual dollar volume of sales which is less than $250,000 (exclusive of excise taxes at the retail level which are separately stated). A "retail or service establishment" shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.

 Plaintiff counters by asserting that this Court's jurisdiction is founded upon 29 U.S.C. § 216(b) and 28 U.S.C. § 1337.

 29 U.S.C. § 216(b) provides as follows:

 
§ 216. Penalties; civil and criminal liability; injunction proceedings terminating right of action; waiver of claims; actions by Secretary of Labor; ...

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