44 F. Supp. 672 | S.D. Tex. | 1942
This is a suit by plaintiff, alleged to be a resident of this District and Division, against defendant, alleged to be a Delaware corporation, for alleged overtime, damages, and attorney’s fees under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 to 219. Summons was served November 28, 1941, by delivering to “T. S. Taliaferro, Attorney”, at Houston,
Plaintiff sets forth in his amended complaint, filed February 14, 1942,
Prior to the decision of the Supreme Court in Neirbo Co. v. Bethlehem Corporation, supra, the cases
It follows, therefore, that defendant’s motion to dismiss should be denied, but plaintiff, of course, has the burden of proving, and must prove, at the trial that defendant has applied for and been granted a permit to do business in Texas, has been and is, in fact, doing business in Texas, has an agent in this District and Division upon whom process may be and has been served, etc. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; McNutt v. McHenry Chevrolet Co., 298 U.S. 190, 56 S.Ct. 785, 80 L.Ed. 1141.
The pertinent allegations in such Amended Complaint are as follows:
“That plaintiff is and has been for a long period of time a resident of Harris County, State of Texas; that the defendant is a non-resident corporation organized under the laws of the State of Delaware and residing therein; that defendant is doing business in the State of Texas and has its principal place of business in said State and has appointed an agent in said State for the service of citation as a part of and in connection with its application to do business in Texas; that defendant's principal place of business is located in the City of Houston, Texas, in the Southern District of Texas, and all of the acts complained of were transacted from said office, the employment and all records pertaining thereto were a part of the business of said office and occurred within the jurisdiction of this court.
“That this cause of action arises out of Section 15 and 16 of the Fair Labor Standards Act of 1938 (Pub. 718-65 [75] th Congress; 52 S'tat. 1060) enacted by the Senate and House of Representatives of the United States of America; that the effective date of said act was October 24, 1938; that the jurisdiction of this cause of action lies in this court by reason of Section 41(8), Title 28, U.S. C.A. 24, and by reason of Section 16 of the Fair Labor Standards Act of 1938; that this court is also granted jurisdiction of this cause by virtue of the provisions of Title 28 U.S.C.A. Section 112 providing that this Court shall have original jurisdiction in cases where there is a diversity of citizenship.”
Articles 1529 to 1538 and Article 2031a, Vernon’s Annotated Texas Civil Statutes.
Defendant stands upon these cases: Macon Grocery Co. v. Atlantic Coast L. R. Co., 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300; Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; Male v. Atchison, T. & S. F. Ry. Co., 240 U.S. 97, 36 S.Ct. 351, 60 L.Ed. 544; Seaboard Rice Milling Co. v. Chicago, R. I. & P. Ry. Co., 270 U.S. 363, 364, 46 S.Ct. 247, 70 L.Ed. 633; Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942; Dissenting Opinion in Neirbo Co. v. Bethlehem Corporation.