Sheridan v. Leitner , 59 F. Supp. 1011 ( 1944 )

BONDY, District Judge.

This is a motion to remand an action brought in the City Ceurt of the City of New York to recover unpaid overtime compensation under the Fair Labor Standards Act of 1938. There is no diversity of citizenship and the amount sued for is less than $3000.

Plaintiff contends that the action was not removable to this court because the act expressly provides that an action to recover such compensation under the Act “may be maintained in any court of competent jurisdiction,” Fair Labor Standards Act, 29 U.S.C.A. § 216, and the City Court is a court of competent jurisdiction.

The defendant contends that the action is removable because it arises under the laws of the United States notwithstanding that it was begun in a court of competent jurisdiction. See 28 U.S.C.A. §§ 41(8), 71.

The relevant decisions are in conflict. The reasons on which they are based are fully considered in Brantley v. Augusta Ice & Coal Co., D.C., 52 F.Supp. 158.

I believe that the decisions which hold such actions should be remanded are the more convincing and are sustained by weight of authority.

The motion to remand accordingly is granted. See Moore Ice Cream Co. v. Rose, 289 U.S. 373, 377, 53 S.Ct. 620, 77 L.Ed. 1265; Smallwood v. Gallardo, 275 U.S. 56, 61, 48 S.Ct. 23, 72 L.Ed. 152, for applicable meaning of the word “maintain.”