Opinion
No. 6280.
June 14, 1947.
Vincent A. Marco, of Beverly Hills, Cal., for plaintiffs.
Latham Watkins, Paul R. Watkins, and Richard W. Lund, all of Los Angeles, Cal., and Smith, Buchanan Ingersoll and Leon E. Hickman, all of Pittsburgh, Pa., for defendant.
Action by Dorsa J. Ditto and others against American Aluminum Company to recover overtime compensation and damages under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. On defendant's motion to dismiss the complaint under the Portal-to-Portal Act of 1947, § 2, 29 U.S.C.A. § 252.
Judgment of dismissal.
The complaint in this action sought additional compensation under the Fair Labor Standards Act, 29 U.S.C.A., § 201 et seq., for time consumed by plaintiff employees in walking to and from time clocks; time consumed in waiting to punch the clocks, changing clothes, obtaining and returning orders, reports, tools and equipment, and in making other necessary preparations for starting and leaving work; time consumed in waiting for payment of their wages, and in waiting at the employer's labor relations offices, first aid stations, and other medical offices. The complaint contained no allegations respecting the existence of any custom, practice or contract to pay for time consumed in such activities. The defendant employer filed a motion to dismiss the complaint on the ground that the action involved a claim for so-called portal-to-portal pay which has been out-lawed and barred by the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 252.
The above action came on regularly to be heard on the 9th day of June, 1947, upon the motion of defendant, Aluminum Company of America, sued herein as American Aluminum Company, to dismiss said action, and the Court having heard the arguments of counsel and being fully advised in the premises found that said motion should be granted and said action dismissed upon the grounds and for the reason stated in defendant's Notice of Motion, that is, that under the Portal-to-Portal Act of 1947, jurisdiction of the Court over this proceeding has been withdrawn and the complaint fails to state a claim against the defendant upon which relief can be granted, and the Court having on said date ordered the action dismissed unless plaintiffs file an amended complaint within thirty days from said June 9, 1947, and said thirty day period having expired without any amendment to the complaint being filed, now, therefore,
It is hereby ordered, adjudged and decreed that the said action be, and the same is, hereby dismissed as to all plaintiffs with prejudice to any subsequent suit upon said claim, and that defendant have and recover its costs of suit.