The opinion of the court was delivered by: LEVET
Defendant has moved under Fed.Rules Civ.Proc. rule 12(b)(2), 28 U.S.C.A., to dismiss the complaint herein upon the ground that the court lacks jurisdiction of the subject matter hereof.
The action is brought under the Fair Labor Standards Act of 1938, as amended, Title 29 U.S.C.A. §§ 201-219. Plaintiff, a former employee of defendant, seeks (1) recovery of $ 3,635.51 in wages alleged to be due as overtime; (2) an equal amount as liquidated damages under Section 216(b); and (3) an additional amount for reasonable counsel fees under Section 216(b).
The facts as they appear upon the pleadings, including the complaint, answer, interrogatories and affidavits, are as follows:
1. The defendant is engaged solely in the business of selling passenger tickets for passage on steamships engaged in international traffic as the agent for the respective ocean steamship lines which it represents, and does not appear to solicit or book cargo or collect freight earnings on such vessels.
2. The plaintiff served in a clerical capacity with defendant and also as a chauffeur. He drove defendant's automobile in the City of New York for the transportation of visiting ticket agents in promotion of defendant's business, and in picking up at the pier various shipments of printed matter and ship models, etc., supplied by principals of defendant in Europe, and in the distribution of such printed matter, models, etc., to subagents of defendant within the City of New York and surrounding territory. The car was also used by plaintiff to transport visiting officers of the European principals and in the transportation of bags of mail to and from the United States Post Offices in New York.
Defendant bases its claim of lack of jurisdiction upon the following contentions:
1. That it is not engaged in interstate commerce; and
2. That it is exempt from application of the Act under Section 213 since it is a retail service establishment.
Title 29 U.S.C.A. § 206(a) is as follows:
'Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates -- * * *.'
Title 29 U.S.C.A. § 203(b) defines 'commerce' as follows:
"Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.'
Paragraph 2 of the complaint is as follows:
'During the times herein stated, the defendant was engaged in the steamship business managing and operating ocean going vessels in international commerce and maintaining an office in the County of New York, City ...