Opinion
No. 24971.
December 19, 1947.
Gladstein, Andersen, Resner Sawyer, of San Francisco, Cal., for plaintiff.
Keyes Erskine, of San Francisco, Cal., for defendant.
Action by Richard P. Kirkham and others against Pacific Gas Electric Company and others to recover overtime compensation under Fair Labor Standards Act. On defendants' motions to dismiss complaint and for summary judgment.
Motion to dismiss complaint granted, and summary judgment entered in favor of defendant.
Defendant's motions to dismiss and for summary judgment in favor of defendant have been argued, briefed and submitted for decision. In support of the motion for summary judgment, defendant submitted affidavits which were not controverted and also certain contracts and bookkeeping material, also not controverted.
The motion to dismiss is upon the ground that the Court lacks jurisdiction of the claim set forth in the amended complaint. Sec. 2(a-d) "Portal to Portal Act of 1947," 29 U.S.C.A. § 252(a-d). The motion for summary judgment is, in part, upon the same ground. The affidavits and other admitted facts, supporting the motion for summary judgment, may therefore justly be considered to "speak" for the motion to dismiss. See San Francisco Lodge No. 68 v. Forrestal, D.C., 58 F. Supp. 466; Central Mexico Light Power Co. v. Munch, 2 Cir., 116 F.2d 85; National War Labor Board v. Montgomery Ward Co., 79 U.S.App.D.C. 200, 144 F.2d 528, 531.
At the time of argument upon the motions, the Court offered plaintiffs an opportunity to further amend the complaint, but counsel elected to submit the motions on the record before the court. (Tr. pp. 64, 65.)
This court lacks jurisdiction of the cause. 29 U.S.C.A. § 252. Alameda v. Paraffine Cos., D.C., 75 F. Supp. 282, and cases therein cited. Johnson v. Park City Consol. Mines Co., D.C., 73 F. Supp. 852; Ditto v. American Aluminum Co., D.C., 73 F. Supp. 955.
The motion to dismiss is granted and summary judgment is granted in favor of the defendant upon the ground that the court lacks jurisdiction of the cause.
Note: Motion to vacate the foregoing judgment was denied on March 16, 1948.