The opinion of the court was delivered by: KNIGHT
Defendant moves to dismiss the complaint herein on the following grounds:
'The grounds for this motion are that it appears on the face of the complaint * * * that the jurisdiction of this Court depends upon Section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C.A. § 216(b)) and Section 41(8)(of 28 U.S.C.A., 24(8)) of the Judicial Code (paragraph 6), and that the complaint does not state facts from which the Court can determine jurisdiction under said Section 16(b) of the Fair Labor Standards Act and said Section 41(8) (of 28 U.S.C.A., 24(8)) of the Judicial Code, because it fails to state facts from which the Court can determine that plaintiff, and the others in whose behalf he claims to sue, were engaged by defendant or its predecessor, National Aniline and Chemical Company, Inc., in commerce or in the production of goods for commerce.'
In defendant's reply memorandum it is said: 'Defendant's motion is made pursuant to the provisions of Rule 12(b)(1) of the Federal Rules of Civil Procedure (28 U.S.C.A.following Section 723c) on grounds stated in Rule 8(a)(1) of said Rules and does not involve Rule 12(b)(6) or Rule 8(a)(2).'
Rules 12(b)(1) provides: 'Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter.'
Rule 8(a)(1) provides: 'A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it.'
The complaint alleges: '6. This action arises under the Act of Congress entitled 'Fair Labor Standards Act of 1938' * * * Jurisdiction is conferred upon this court by Section 16b of said Fair Labor Standards Act of 1938 and by Section 41(8) of the Judicial Code.'
Section 16(b) of said Act, Tit. 29 U.S.C.A. § 216(b), provides:
'Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. * * * '
Section 41(8) of the Judicial Code provides:
'The district courts shall have original jurisdiction as follows * * * (8) * * * Of all suits and proceedings arising under any law regulating commerce.'
The complaint alleges: '2. On or about August 20, 1946, plaintiff was designated as Agent and Representative of the employees of the defendant corporation and its predecessor, National Aniline and Chemical Company, Inc., listed in Schedule 'A' * * * to assert, maintain and prosecute this action for and on behalf of such employees * * * . 3. This action is brought by the plaintiff for and in behalf of himself and as Agent and as Representative for and in behalf of all of the other employees of the defendant at the Buffalo, New York, plant of the National Aniline Division of the defendant corporation, pursuant to the provisions of Section 16 b of the Fair Labor Standards Act of 1938.'
Schedule A contains a list of 1408 names with clock numbers.
Section 206(a) of the Act provides:
'Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce ...