Opinion
Action by Leabert L. Hays and another, against the Hercules Powder Company to recover compensation for time spent in preparation for day's employment. On motion to dismiss.
Motion granted unless complainants should file an amended complaint within 30 days.
Smith F. Brandom, of Kansas City, Mo., for plaintiff.
Madden, Freeman, Madden & Burke, of Kansas City, Mo., and Stevens & Brand, of Lawrence, Kan., for defendant.
REEVES, District Judge.
Several motions have been filed in the above cause, including a motion to dismiss. It is obvious from a reading of the complaint that the action is based upon the decision in Anderson et al. v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, which is known as the Portal to Portal case.
Subsequently to that decision the Congress enacted a law, 29 U.S.C.A. § 251 et seq., which had the effect to nullify said opinion, or at least to authorize recovery in the federal courts only in those cases where by contract or custom the claimants were entitled to the compensation mentioned, that is, compensation for time spent in preparation for the day's employment. In the absence of such contract or custom, the Congress took away from the federal courts jurisdiction. It is necessary, therefore, in such cases, for the claimant to allege, as required by Rule 8(a), Rules of Civil Procedure in the Federal Courts, 28 U.S.C.A. following section 723c, facts which show jurisdiction.
Moreover, another question arises in this case, and that is whether the plaintiffs were engaged in commerce or the production of goods for commerce. If the complainants were engaged in producing goods for the government in its war activities, then such activities were not in commerce.
In this case it may be questioned whether the complaint shows a right to relief. The courts have been very liberal in sustaining complaints as against motions to dismiss, but in this case no facts are stated which can do more than create a suspicion that plaintiffs may be able to state a cause of action cognizable in this court.
The complainants will be granted 30 days within which to file an amended complaint. Upon failure to do so an order of dismissal will be made.