940 F. 2d 661 - Perry v. Criterion Investment Corporation H a

Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges, and HOLSCHUH*, Chief District Judge.

William Alford Perry, an Alabama resident, appeals pro se from the summary judgment for defendants in this diversity action which raised claims of fraud, breach of contract, and violations of the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Perry sues defendants to collect his judgment against Criterion Freightways, Inc., and Pacesetters Transportation, Inc. He alleges the present defendants commingled the assets of Criterion and Pacesetters with their own in an attempt to avoid payment of the judgment. The underlying judgment arose out of the failure to pay Perry for wages earned and expenses incurred during a three-week period in July 1986 when he was employed by Criterion as a truck driver.

Upon consideration, the district court's grant of summary judgment for defendants must be affirmed for the reasons stated by the district court in that Perry lost his right to sue for breach of contract and violations of the Fair Labor Standards Act once the Secretary of Labor filed suit and obtained a judgment including back wages due him. See Donovan v. University of Texas at El Paso, 643 F.2d 1201, 1207 (5th Cir.1981). Perry's remaining claims also are dismissed for his failure to demonstrate a genuine issue of material fact. Accordingly, the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.