Fajack v. Cleveland Graphite Bronze Co.

73 F. Supp. 308, 1947 U.S. Dist. LEXIS 2293

Opinion

JONES, District Judge.

The basis for the liability sought to be imposed in this case as laid does not conform to the requirements of the so-called Portal-to-Portal Act of 1947, approved May 14, 1947, 29 U.S.C.A. § 251 et seq. The complaint, therefore, will be dismissed without prejudice.

If the plaintiffs are able to bring an action alleging essential facts respecting unpaid overtime and for valid compensable time as is required by the new Act, the opportunity is not foreclosed.

If, as is suggested, the constitutionality of the statute is to be put in issue it would be far better to have such challenge incorporated in a new complaint.

Amendment or supplement to the complaint was suggested but complications in pleading are apprehended in an attempt to re-form pleadings in pending actions, particularly where a new statute imposing conditions has intervened.