bring an action for violations occurring prior to January 25,
1950 — the effective date of the Fair Labor Standards Amendments
Plaintiff submits that defense (A) above is insufficient in law
and should be stricken. The language of the Act in regard to the
retroactive effect of Section 16(c) is plain and leaves no room
for doubt as to what was intended. When Congress passed the Fair
Labor Standards Amendments of 1949, it made clear that an
employer's liability for any act or omission occuring prior to
the effective date of the Amendments continued after the
effective date thereof. Thus, Section 16(d) expressly provided:
"No amendment made by this Act shall affect any penalty or
liability with respect to any act or omission occurring prior to
the effective date of this Act * * *." 29 U.S.C.A. § 216 note.
In the instant case, the complaint charges a liability with
respect to acts or omissions occurring prior to January 25, 1950.
In other words, the defendant failed to pay overtime compensation
due employee Joseph E. Wiley for excessive hours worked during
said workweeks, which resulted in a liability of $248.01. By the
express terms of Section 16(d), supra, this liability is in
nowise changed by the Amendments. The defendant's liability is an
existing liability. The liability which was incurred as a
result of the overtime violations has not been changed. The
liability continues to exist by virtue of the express language of
the statute. What has been changed is not the liability as
defendant claims, but the remedy or the procedure by which the
liability for unpaid overtime compensation unlawfully withheld
can be collected.
Defense (A) is insufficient in law and should be stricken.
It is plaintiff's contention that defense (B) is insufficient
in law and should be stricken. The alleged unsettled issue of law
— whether Section 16(c) of the act can operate retroactively to
the date of the violations occurring before the effective date of
the 1949 Amendments — is one which can only be settled in a
Section 16(c) action. Such a defense asserted by defendant, if
sustained, would mean that this allegedly unsettled issue of law
could never be settled, and hence, that a suit involving this
particular issue could never be maintained.
Subparagraph (3) of paragraph 2 is insufficient at law and
should be stricken.
As defense numbered 3, defendant denies that this action is
brought under section 16(c) of the "Act" and denies that
plaintiff is authorized by said section to bring action "on
behalf of anybody". The defendant thereafter infers that the
payment of recovered sums to the employees is a discretionary
act. However, plaintiff points out that the statute is specific
in setting out the duties of the Secretary of Labor with respect
to the payment of sums so recovered. It is the Secretary of Labor
who will supervise the payment of any sums so recovered to the
employees. Only in the event of inability to pay the employees
will the sums so recovered be covered into the Treasury of the
United States. Control is vested in the Secretary of Labor and he
is the real party in interest.
Plaintiff submits that defense numbered 3, except the last
sentence thereof, is insufficient in law and should be stricken.
As to defense numbered 4, plaintiff submits that the portion of
the defense which states: "Defendant denies that there is no
issue of law in this cause of action which has not been finally
settled by the courts * * *" has already been pleaded in defense
numbered 2 and is, therefore, redundant and should be stricken.
In addition, other portions of the defense have been raised in
defenses numbered 1 and 2.
As to defense numbered 9, plaintiff submits that defendant has
introduced into the pleadings matters which are evidentiary in
nature. It has been held that allegations of detailed facts of
evidentiary nature will be stricken on plaintiff's motion. Salem
Engineering Co. v. National Supply Co., D.C., 75 F. Supp. 993.
It is my conclusion that plaintiff's motion to strike the
following portions from defendant's amended answer be granted:
1. Subparagraph (1) of defense numbered 2. Since this defense
goes to the cause of action rather than jurisdiction, it is
insufficient at law and should be stricken.
2. Subparagraph (3) of defense numbered 2. The language of the
Act in regard to the retroactive effect of Section 16(c) is
clear. An employer's liability for any act or omission occurring
prior to the effective date of the Amendments continued after the
effective date thereof.
3. Defense numbered 3, except the last sentence thereof, which
reads: "Defendant neither admits nor denies the allegation that
plaintiff's usee has signed a written request with the plaintiff
as alleged but demands strict proof." The Act is specific in
setting out the duties of Secretary of Labor with respect to the
payment of sums so recovered.
4. Defense numbered 4. Contains defenses which have been raised
in other defenses, therefor is redundant.
5. Defense numbered 9. Defendant has introduced into pleadings
matters which are evidentiary in nature.
Plaintiff's motion granted to strike from defendant's amended
answer subparagraphs (1) and (3) of defense numbered 2; defense
numbered 3, except the last sentence thereof; defense numbered 4;
and defense numbered 9.
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