Opinion
Action by Bernard Cusimano against Thomas J. Falciglia, doing business under the firm name and style of Locato Garment Company, for overtime compensation under the Fair Labor Standards Act, wherein the defendant filed a counterclaim for money loaned. On plaintiff's motion to dismiss counterclaim.
Motion granted.
Katz & Wolchok, of New York City, for plaintiff.
Hershkowitz & Kaufman, of New York City, for defendant.
RIFKIND, District Judge.
Plaintiff's motion to dismiss a counterclaim for money loaned, interposed in an action for overtime compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., is granted for want of jurisdiction.
Whatever reasoning may support federal jurisdiction of such a permissive counterclaim in the absence of diversity of citizenship and jurisdictional amount, 1 Moore's Federal Practice 696; Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 1936, 45 Yale Law Journal 393, 414; Marks v. Spitz, D.C.Mass.1945, 4 F.R.D. 348, 350, this court is bound by Lesnik v. Public Industrials Corp., 2 Cir., 1944, 144 F.2d 968, 976, note 10; Libbey-Owens-Ford Glass Co. v. Sylvania Industrial, 2 Cir., 1946, 154 F.2d 814, 816, certiorari denied 66 S.Ct. 1353. The Eighth Circuit is in accord; Kantar v. Garchell, 1945, 150 F.2d 47, 49.
The counterclaim is dismissed for lack of jurisdiction.