Opinion
No. 1205.
May 21, 1941.
J. Joseph Maloney, of Boston, Mass., for plaintiff.
Julian L. Yesley, of Boston, Mass., for defendant.
Action by Samuel Britt against the Cole Drug Company of Boston to recover unpaid overtime compensation and an additional equal amount of damages pursuant to section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 216(b). On defendant's motion to dismiss the complaint and in the alternative for a bill of particulars.
Motion to dismiss denied and motion for a bill of particulars granted.
In this action to recover from the defendant unpaid overtime compensation and an additional equal amount of damages, pursuant to Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201- 219, the defendant in a single motion seeks a dismissal of the complaint and in the alternative a bill of particulars. The action may not be dismissed for failure to state a claim upon which relief can be granted. The defendant urges also that the action should be dismissed for want of jurisdiction because of the lack of diversity of citizenship or because the amount in controversy is less than $3,000. The Fair Labor Standards Act provides that this type of action may be maintained in any court of competent jurisdiction, while 28 U.S.C.A. § 41(8) provides that the United States District Courts shall have original jurisdiction "of all suits and proceedings arising under any law regulating commerce", and the Fair Labor Standards Act is based upon the Congressional power to regulate commerce. This Court's jurisdiction does not depend upon diversity of citizenship or the amount in controversy and the defendant's motion to dismiss the action is denied. See Townsend v. Boston Maine R.R., D.C., 35 F. Supp. 938; Martin v. Lain Oil Gas Co., D.C., 36 F. Supp. 252; Rogers v. Glazer, D.C., 32 F. Supp. 990; Lengel v. Newark Newsdealers Supply Co., D.C., 32 F. Supp. 567; Fishman v. Marcouse, D.C., 32 F. Supp. 460; Campbell v. Superior Decalcominia Co., D.C., 31 F. Supp. 663. See also Robertson v. Argus Hosiery Mills, D.C., 32 F. Supp. 19, contra.
That part of the defendant's motion seeking a bill of particulars is granted, and a bill of particulars conforming thereunto so far as reasonably possible is to be filed in or within ten days.