Summary
In Rydberg v. Great Northern Ry. Co., 12 F.R.D. 108 (D.C. 1951), (D.Minn. 1951) Judge Donovan refused to grant a motion to dismiss by the railroad in a dispute over vacation benefits.
Summary of this case from Saleck v. Great Northern Railway Co.Opinion
Actions by Bert Rydberg, and by Steven J. Borotz, against the Great Northern Railway Company, a corporation, to recover vacation pay under the Selective Training and Service Act of 1940. Defendant moved in each case to dismiss on ground that complaint failed to state claim upon which relief could be granted. The motions were consolidated. The District Court, Donovan, J., held that the complaints stated claims justifying recovery upon required proof, and motions to dismiss would be denied without prejudice to renewal at trial.
Order in accordance with opinion.
H. V. Rhedin, St. Paul, Minn., for the defendant.
Howard H. Gelb, Asst. U.S. Atty., St. Paul, Minn., for the plaintiffs.
The above-entitled matters came on for hearing before the undersigned, one of the judges of the above-named Court, at a Special Term thereof, held at St. Paul, Minnesota, on the 26th day of November, 1951, upon the motions of the defendant in both cases to dismiss.
DONOVAN, District Judge.
Plaintiffs seek money judgment for vacation rights under the Selective Training and Service Act of 1940. The motion to dismiss in each case is made on the ground that the complaint fails to state a claim upon which relief can be granted. The pleadings and motions warranted consolidation. The motions are based on Rule 12(b)(6), Federal Rules of Civil Procedure, 28 U.S.C.A.
50 U.S.C.A.Appendix, § 308(b) and (c).
Counsel for each party filed briefs and argued orally. Defendant, in support of the motions, contends the relief sought by plaintiffs is not within the purview of said Act, citing cases. Plaintiffs, opposing the motions, marshalled respectable authority in support of the cause of action outlined in the complaints.
Monticue v. Baltimore & O. R. Co., D.C., 91 F.Supp. 561; Brown v. Watt Car & Wheel Co., 6 Cir., 182 F.2d 570; Fishgold v. Sullivan Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; Dwyer v. Crosby Co., 2 Cir., 167 F.2d 567; Siaskiewicz v. General Electric Co., 2 Cir., 166 F.2d 463.
Montzel v. Diamond et al., 3 Cir., 167 F.2d 299; MacLaughlin v. Union Switch & Signal Co., 3 Cir., 166 F.2d 46.
The court's attention has not been directed to any pertinent decision by the Court of Appeals of the Eighth Circuit, and the court has found none. The difference in the conclusions arrived at in the Second and Third Circuits suggests an element of speculation as to what is the appropriate disposition of the question of vacation pay in the cases at bar. All doubts should be resolved with a thought to protecting the veteran, and as required by a liberal construction of the Act in question. Motions to dismiss should not be granted unless it appears to a certainty that plaintiffs would be entitled to no relief under any state of facts in support of the claim set forth in the complaints. Thoughtful consideration is convincing that the plaintiffs have stated a claim justifying recovery upon required proof. The motion to dismiss in each case is denied without prejudice to its renewal at trial.
Fishgold v. Sullivan Corp., supra; Karas v. Klein et al., D.C., 70 F.Supp. 469.
Sparks v. England, 8 Cir., 113 F.2d 579; Turner v. United States Gypsum Co., D.C., 11 F.R.D. 545; R. O. Stenzel & Co. v. Department Store Package, etc., D.C., 11 F.R.D. 362.
It is so ordered.