Opinion
November 7, 1947.
Herman E. Cooper, of New York City (Herman E. Cooper and Irving Rozen, both of New York City, of counsel), for plaintiffs.
Mudge, Stern, Williams Tucker, of New York City (Paul D. Miller and Milton Black, both of New York City, of counsel), for defendant.
Action by Edmund B. Borucki and others against Continental Baking Company to recover unpaid overtime compensation. On defendant's motion to dismiss.
Motion granted.
This action was commenced on September 8, 1947, or nearly four months after May 14, 1947, the effective date of the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq. It is therefore plainly distinguishable from Deaton v. Titusville Bldg. Corporation, D.C., 72 F. Supp. 986. Under these circumstances, I think the complaint must allege that the activities for which compensation is sought were compensable under an express contract, custom or practice. The complaint now under attack fails to make these allegations, and is defective in that respect.
The motion of the defendant to dismiss the complaint for failure to state facts sufficient to show that the Court has jurisdiction over the subject matter of the action is accordingly granted, with permission to amend within 20 days.