Tye v. Hertz Drivurself Stations, Inc.

McGRANERY, District Judge.

This was an action under the Fair Labor •Standards Act of 1938, 29 U.S.C.A. § 201 et seq., for overtime pay and liquidated damages allegedly due the plaintiff. At trial a verdict was returned for plaintiff, which was later set aside on plaintiff’s motion for a partial new trial. Within ten days after that verdict defendant moved for a judgment notwithstanding the verdict. That motion was denied in my Memorandum Opinion filed June 17, 1947. Defendant has mow filed another motion for a judgment .notwithstanding the verdict, basing it upon the Portal-to-Portal Act of 1947, 29 U.S.C. A. § 251 et seq. Federal Rules of Civil Procedure, Rule 50(b), 28 U.S.C.A. following section 723c, under which authority defendant makes its motion, provides:

“Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.”

Defendant’s present motion is clearly not timely. Therefore it must be denied.