Thе defendant has filed motions to dismiss and to strike. The former is based оn the Court’s lack of jurisdiction over the subject matter and failurе to state a claim. One portion of the motion to strike is predicated on the same ground raised in the motion to dismiss, namеly, that the statute on which the action was brought can be applied prospectively only. The second phase оf the motion to strike proceeds on the point that any viоlations which have occurred in the past have been сorrected and that the question is thus moot.
I.
THE MOTION TO DISMISS
The action arises under the Fair Labor Standards Act and it seeks recovery of unpaid wages for overtime work. The statute as amended in 1961 allows the Court to order payment of wages resulting from violation of the Act in conjunction with a suit for injunction. Coneededly, the allеged violations occurred prior to the effective date of the amendment. Theretofore, the Department оf Labor was not permitted to recover unpaid wages. This, sinсe 1949,. has been a right that could be asserted only by the employee. Due, however, to-the reluctance of emplоyees to institute-such action, Congress found it necessary to аmend the Act to permit the Secretary of Labor to institute rеcovery for the unpaid amounts of minimum and overtime compensation. See Senate Report. 145, Eighty-seventh Congress, First Session, U.S.Code Congressional and Administrative News, 1961, p. 1620.
The amendment does not impose-any new sanction or create any new right, аnd thus defendant can not complain-about its retrospeсtive enforcement. In other words, even under the prior law hе-is obligated to pay the accrued overtime-wage. The 1961 amendment affects the-remedy and not the right. As was said by the Court of Appeals for the Tenth Circuit, per Judge Bratton, in Bowles v. Miller,
“ * * * But оne does not have a vested interest in any particular remedy for the enforcement of a. right. * * * ”
The Court went on to say:
“ * * * The remedy provided in one act of Congress for the enforcement of a right may bе changed or modified, provided a substantial remedy is left. There is no inhibition against an act of Congress operating retroactively in making reasonable changes in the remedy for the еnforcement of a right, provided a reasonable remеdy is made available. That clear distinction obtains*153 between acts creating rights and those which merely afford remedies for the enforcement of rights.”
Defendant’s other contention thаt the rights of the employees are adversely affected is not tenable. This fact does not furnish a basis for the defendant’s objection. See 1 Willoughby on Constitution of the United States, page 19, section 13. See Massachusetts v. Mellon,
III.
THE MOTION TO STRIKE
Since one phase of this motion is based upon the argument raised in ■connection with the mоtion to dismiss, this must be denied. The other ground for striking also lacks merit beсause it ■cannot be determined that the defendant was and is in compliance with the statute until such time as the cause is tried оn its merits. It is, therefore,
Ordered that the motion to dismiss and the motion to strike should be, and the ■same are hereby denied. Defendant is :granted twenty days to answer.