Aranda v. Southwest Transport, Inc. et al
Filing
47
ORDER denying 31 Motion for Partial Summary Judgment; granting 36 Motion for Summary Judgment. Signed by Magistrate Judge John J. O'Sullivan on 3/15/2012. (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-21222-CIV-O’SULLIVAN
[CONSENT]
YOEL ARRANDA,
Plaintiffs,
v.
SOUTHWEST TRANSPORT, INC.,
and ROBERT J. MURIEDAS,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court on the Defendants’ Motion for Partial Summary
Judgment (DE # 31, 1/22/12) and the Plaintiff’s Motion for Summary Judgment (DE #
36, 1/30/12). Having carefully considered the parties’ motions, the court file and
applicable law, the undersigned enters the following Order.
BACKGROUND
The plaintiff filed a two count complaint against the defendants in this matter on
April 7, 2011. (DE # 1, 4/7/12). The case was brought under the Fair Labor Standards
Act 29 U.S.C. §§ 201-216 (FLSA). Count I was for a federal overtime wage violation
and Count II was for a federal minimum wage violation. See Complaint (DE# 1, 4/7/11).
On January 22, 2012, the defendants filed the Defendants’ Motion for Partial
Summary Judgment (DE# 31, 1/22/12) and the Defendants’ Notice of Filing Deposition
Transcript of Robert Muriedas (DE # 32, 1/22/12). On January 23, 2012, the
defendants filed the Defendants’ Notice of Filing Affidavit of Robert Muriedas (DE # 33,
1/23/12). On January 30, 2012, the plaintiff filed the Plaintiff’s Motion for Summary
Judgment (DE # 36, 1/30/12) and the Plaintiff’s Statement of Undisputed Material Facts
(DE # 37, 1/30/12). On February 7, 2012, the plaintiff filed the Plaintiff’s Response in
Opposition to Defendants’ Motion for Summary Judgment (DE # 38, 2/7/12). On
February 13, 2012, the defendants filed the Defendants’ Response to Plaintiff’s Motion
for Summary Judgment (DE # 39, 2/13/12) and the Defendants’ Response to Plaintiff’s
Statement of Undisputed Material Facts (DE # 40, 2/13/12). On February 16, 2012, the
plaintiff filed the Plaintiff’s Reply to Defendants Opposition to Plaintiff’s Motion for
Summary Judgment (DE # 41, 2/16/12). This matter is now ripe for consideration.
FACTS 1
The defendant Southwest Transport, Inc. (hereinafter “SWT”) is a private towing
company located in Miami, Florida. See Deposition of Robert J. Murieda (DE# 37-1 at
6, 1/30/12). SWT provides towing and wrecker services for vehicles. The defendant
Robert J. Murieda is the owner of SWT. Mr. Murieda operates the day-to-day
operations of SWT. Mr. Murieda was responsible for scheduling the employees of
SWT and for paying their salaries. See Complaint (DE#1 at 1, 4/7/11).
The plaintiff provided towing services on behalf of SWT as a driver beginning in
July 2010 until March 29, 2011. The plaintiff’s job was to drive a tow truck to pick up
1 The facts of the case are set forth with a view toward the evidence and the factual
inferences therefrom in the light most favorable to the non-moving party. Key West
Harbour Dev. Corp. v. Key West, 987 F.2d 723, 726 (11th Cir. 1993). This standard is
not changed by cross-motions for summary judgment, as the Court treats each motion
separately. See Adega v. State Farm Fire & Cas. Ins. Co., No. 07-20696, 2009 WL
3387689, at *3 (S.D. Fla. Oct.16, 2009) (“When evaluating cross-motions for summary
judgment, the Court analyzes each individual motion on its own merits and thus views
the facts on each motion in the light most favorable to the respective nonmovant.”).
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vehicles needing towing. See Deposition of Robert J. Murieda (DE# 37-1 at 5, 1/30/12).
The plaintiff’s responsibilities included daily inspection of the oil level and tires. Id, at
47. When the plaintiff picked up vehicles, he was responsible for properly securing the
cargo to the tow truck. See Defendant’s Motion for Partial Summary Judgment (DE# 31
at 3, 1/22/12). The plaintiff was required to be available from 7:00 AM to 7:00 PM on
Monday through Friday, as well as one or two additional night shifts between 9:00 PM
and 11:00 PM. See Deposition of Robert J. Murieda (DE# 37-1 at 9, 1/30/12). The
plaintiff’s pay rate was based on an hourly salary plus a twenty-five percent commission
of the revenue the plaintiff generated for SWT. Id. at 20.
SWT’s business includes towing services along with services to move heavy
equipment such as industrial generators and mobile homes. See Defendant’s Motion
for Partial Summary Judgment (DE# 31 at 3, 1/22/12). SWT provides theses services
to the police, government, and private entities. Id.
SWT holds itself out as an interstate carrier that transports vehicles and other
heavy equipment across state lines. Id. SWT maintains a license issued by the
Department of Transportation (hereinafter “DOT”) and a motor carrier number issued by
the Federal Motor Carrier Safety Administration (hereinafter “FMCSA”). Id. The
FMCSA classifies SWT’s operations as “interstate.” Id. About 90 percent of SWT’s
services are performed in Miami-Dade and Broward County. See Deposition of Robert
J. Murieda (DE# 37-1 at 35, 1/30/12). During the plaintiff’s employment, SWT
conducted approximately five (5) out-of-state trips in which drivers left the state of
Florida. Id. at 36.
The plaintiff did not conduct one of the five (5) out-of-state trips performed by
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SWT during the duration of his employment. Id. at 34. On March 29, 2011, the plaintiff
was terminated from SWT. Id. at 50
STANDARD OF REVIEW
The Court, in reviewing a motion for summary judgment, is guided by the
standard set forth in Federal Rule of Civil Procedure 56(a), which states, in relevant
part, as follows:
The Court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and that the movant is entitled
to judgment as a matter of law.
The moving party bears the burden of meeting this exacting standard. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). That is, "[t]he moving party bears 'the initial
responsibility of informing the . . . court of the basis for its motion, and identifying those
portions of the 'pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact.'" U.S. v. Four Parcels of Real Prop., 941 F.2d 1428,
1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323). In assessing whether the
moving party has satisfied this burden, the Court is required to view the evidence and
all factual inferences arising therefrom in the light most favorable to the non-moving
party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994). Cross motions for summary
judgment do not change this standard. “When evaluating cross-motions for summary
judgment, the Court analyzes each individual motion on its own merits and thus views
the facts on each motion in the light most favorable to the respective nonmovant.”
Adega v. State Farm Fire & Cas. Ins. Co., No. 07-20696, 2009 WL 3387689, at *3 (S.D.
Fla. Oct.16, 2009). Summary judgment is appropriate when there is no dispute as to
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any material fact and only questions of law remain. Id. If the record presents factual
issues, the Court must deny the motion and proceed to trial. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970).
Despite these presumptions in favor of the non-moving party, the Court must be
mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense
to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at
322-23. Consequently, the non-moving party cannot merely rest upon his bare
assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court
noted in Celotex:
[T]he plain language of Rule 56(c) mandates the entry of summary
judgment . . . against the party who fails to make a showing sufficient to
establish the existence of an element essential to the party's case, and on
which the party will bear the burden of proof at trial. In such a situation,
there can be "no genuine issue as to any material fact," since a complete
failure of proof concerning an essential element of the non-moving party's
case necessarily renders all other facts immaterial.
Id. at 322-23. Thus, the mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient. There must be evidence on which the jury could
reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251
(1986).
ANALYSIS
I.
Defendants’ Motion for Partial Summary Judgment
The defendants claim they are entitled to partial summary judgment because
Southwest Transport is exempt from the overtime requirements of the FLSA under the
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Motor Carrier Act, 29 U.S.C. §213(b) (MCA).2 The defendants moved for summary
judgment on the following affirmative defense:
Motor Carrier Act: Under the Motor Carrier Act, 29 U.S.C. §
213(b) (the “MCA”), SWT is exempt from the overtime
requirements of the FLSA in that: SWT is a “motor carrier”
engaged in interstate commerce; the plaintiff’s duties directly
affected the safety and operation of the defendant’s motor
vehicles; the truck assigned to the Plaintiff had a gross
weight in excess of 10,000 lbs.
Defendants’ Motion for Partial Summary Judgment, (DE # 31, 1/22/12, at pp. 1-2).
Exemptions to the FLSA are narrowly construed against the employer. Alvarez
Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir. 2008). The
MCA exemption is found in 29 U.S.C. § 213(b)(1) of the FLSA and provides that the
FLSA’s overtime provision, section 207, does not apply “to any employee with respect
to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provisions of Section 31502 of Title 49.”
Alvarado v. I.G.W.T. Delivery Sys., Inc., 410 F.Supp. 2d 1272 (S.D. Fla. 2006). The
Eleventh Circuit explained that:
The Secretary has the power to establish qualifications and
maximum hours of service for employees who (1) are
employed by carriers whose transportation of passengers or
property by motor vehicle is subject to the Secretary’s
jurisdiction under the Motor Carrier Act; and (2) engage in
activities of a character directly affecting the safety of
operation of motor vehicles in the transportation on the
public highways of passengers or property in interstate or
2 The plaintiff points out in its response to the defendant’s Motion for Partial Summary
Judgment that “even if the Court were to somehow agree with Defendants as it relates
to the overtime claim, the MCA exemption cannot apply as a matter of law to Plaintiff’s
minimum wage claim.”
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foreign commerce within the meaning of the Motor Carrier
Act.
Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180, 181-82 (11th Cir. 1991)
(citing 29 C.F.R. § 782.2(a)); see Opelika Royal Crown Bottling Co. v. Goldberg, 299
F.2d 37, 43 (5th Cir. 1962) (holding that driver helpers who load and unload cargo
affect the safety of the vehicle and are exempt from the overtime provisions of the
FLSA).
29 U.S.C. § 213(b)(1) provides an exemption from the maximum hours and
overtime requirements of FLSA § 207. Under 29 C.F.R. § 782.2(a), an employee may
be exempt from overtime provisions based on the class to which the employer belongs,
and the class of work involved in the employee’s job. In order for the defendant to fall
under the exemption, the three requirements listed below must be met:
(1) Interstate commerce must be present;
(2) The defendant/employer must be a carrier that is
covered by the Motor Carrier Act; and
(3) The activities of the subject employee must affect the
safety of operation of motor vehicles.
See 29 C.F.R. § 782.2(a).
A. Was the Defendant’s Interstate Commerce Activity De Minimus
As outlined above, the first requirement in order for the defendant to fall within
the exemption under 29 U.S.C. § 213, is that the defendant must conduct business
within interstate commerce. The FLSA defines “commerce” to mean “trade, commerce,
transportation, transmission, or communication among the several States or between
any State and any place outside thereof.” 29 U.S.C. § 203(b). The defendant SWT is a
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private towing company located in Miami, Florida. SWT provides towing and wrecker
services for vehicles. SWT’s business includes towing services along with services to
move heavy equipment such as industrial generators and mobile homes. SWT
provides theses services to the police, government, and private entities.
SWT holds itself out as an interstate carrier that transports vehicles and other
heavy equipment across state lines. SWT maintains a license issued by the
Department of Transportation (hereinafter “DOT”) and a motor carrier number issued by
the Federal Motor Carrier Safety Administration (hereinafter “FMCSA”). The FMCSA
classifies SWT’s operations as “interstate.” About 90 percent of SWT’s services are
performed in Miami-Dade and Broward County. During the plaintiff’s employment, SWT
conducted approximately five (5) out-of-state trips in which drivers left the state of
Florida.
Even though the FMCSA classifies SWT’s operations as “interstate”, the plaintiff
argues that the amount of times trips were made by the defendant out of the State of
Florida were minimal and classify as de minimus. In Walters v. American Coach Lines
of Miami, Inc., 575 F.3d 1221 (11th Cir. 2009), the Eleventh Circuit noted that “[t]he de
minimus requirement may be inapplicable to situations such as this, where the
company has the appropriate federal licensing and there is undisputed proof of some
transportation that crosses state lines. We can find no cases indicating that this
evidence, by itself, would not be enough to meet the prong.” Walters at 1228. Here,
because SWT maintains a license issued by the DOT and a motor carrier number
issued by the FMCSA, because the FMCSA classifies SWT’s operations as “interstate”,
and there is undisputed proof of some transportation that crosses state lines, the
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undersigned finds the de minimus requirement is inapplicable in this case.
B. The Defendant Is a Motor Carrier
According to 29 U.S.C. § 213(b), the defendant must be subject to the Motor
Carrier Act in order to fall under the relevant exemption. Under 49 U.S.C. § 13501 and
29 C.F.R. § 782.1, the Motor Carrier Act provides the Secretary of Transportation with
jurisdiction over “transportation by motor carrier and the procurement of that
transportation, to the extent that passengers, property, or both are transported by motor
carrier between a place in a State and a place in another State; a State and another
place in the same State through another State; ... the United States and a place in a
foreign country to the extent the transportation is in the United States....” 49 U.S.C. §
13501(1). A “motor carrier” is defined as “a person providing motor vehicle
transportation for compensation.” 49 U.S.C. § 13102 (14). The motor carrier
exemption depends on the existence of the Secretary of Transportation’s authority to
regulate the maximum hours and qualifications of the employees, not the actual
exercise of that authority. Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180,
181 n.2. (11th Cir. 1991) (citing Galbreath v. Gulf Oil Corp., 413 F.2d 941, 944 n.4 (5th
Cir. 1969); Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42 (5th Cir.
1962)); see Morrison v. Quality Transports Services, Inc., 474 F. Supp. 2d 1303, 1309
(S.D. Fla. 2007).
The defendant is a motor carrier because it is in the business of using trucks to
carry property on public highways and the defendant is engaged in interstate
commerce. See Bilyou v. Duchess Beer Distributors, Inc., 300 F.3d 217 (2nd Cir.
2002). As the undersigned will discuss below, however, the question arises whether
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the motor carrier exemption applies to the plaintiff in this case.
C. The Activities of the Plaintiff Affected the Safety of the Operation of
Motor Vehicles
Under 29 U.S.C. § 213(b), in order for an exemption to apply, the employee’s
activities must directly affect the safety of the operation of motor vehicles. 49 U.S.C. §
31502(b) authorizes the Secretary of Transportation to “prescribe requirements for -- (1)
qualifications and maximum hours of service of employees of and safety of operation
and equipment of, a motor carrier; (2) qualifications and maximum hours of service of
employees of, and standards of equipment of, a motor private carrier, when needed to
promote safety of operation.” The subject exemption applies to drivers, mechanics,
loaders and helpers. See Pyramid Motor Freight Corporation v. Ispass, 330 U.S. 695,
708 (1947); see Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180, 182 (11th
Cir. 1991)(affirming summary judgment in favor of employer and holding that guards
riding on trucks were engaged in activities directly affecting the safety of the operation
of motor vehicles in interstate commerce). The name that is given to an employee’s
position or the work that the employee performs is not controlling in the determination of
whether the exemption is applicable. Pyramid Motor at 707; Levinson v. Specter Motor
Service, 330 U.S. 649, 671 (1947). (“The fundamental test is simply that the
employee’s activities affect safety of operation.”) The Court shall consider whether the
activities of the employee affect the safety of operation. Pyramid Motor at 707-708. As
stated in 29 C.F.R. § 782.2(b)(3):
As a general rule, if the bona fide duties of the job
performed by the employee are in fact such that he is (or, in
the case of a member of a group of drivers, driver’s helpers,
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loaders, or mechanics employed by a common carrier and
engaged in safety-affecting occupations, that he is likely to
be) called upon in the ordinary course of his work to
perform, either regularly or from time to time, safety-affecting
activities of the character described in paragraph (b)(2) of
this section, he comes within the exemption in all workweeks
when his employed at such job.
The plaintiff’s responsibilities included daily inspection of the oil level and tires
which affects the safety of the vehicles. There is no dispute that the plaintiff was
involved in the safety of the vehicles.
The undersigned finds that the plaintiff was engaged in safety-affecting activities
in his position for the defendant. See Wirtz v. Robinson & Stephens, Inc., 1972 WL 852
*5 (N.D. Ga. 1972) (applying the Motor Carrier Act exemption and finding mechanics,
wrecker and truck drivers, drivers helpers, loaders, yardmen and dispatchers of the
defendant exempt from the overtime requirements of the FLSA). In turn, the question
then arises whether the plaintiff was involved in the safety of vehicles entering interstate
commerce. As discussed below, the undersigned finds that the plaintiff was not
involved in the safety of vehicles entering interstate commerce. The defendant’s
Motion for Summary Judgment is DENIED.
II.
Plaintiff’s Motion for Summary Judgment
The plaintiff moved for summary judgment on three issues: 1. the defendant
Muriedas was the plaintiff’s employer along with SWT and the two defendants are
jointly and severally liable for the wages owed to the plaintiff; 2. SWT is covered by the
FLSA; and 3. the Motor Carrier Exemption does not apply.
In the response to the Plaintiff’s Motion for Summary Judgment the defendants
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do not dispute the first two issues on which the plaintiff moved for summary judgment:
1. the defendant Muriedas was the plaintiff’s employer along with SWT and the two
defendants are jointly and severally liable for the wages owed to the plaintiff; and 2.
SWT is covered by the FLSA. Therefore the undersigned finds that the defendant
Muriedas was the plaintiff’s employer along with SWT and the two defendants are
jointly and severally liable for the wages owed to the plaintiff and that SWT is covered
by the FLSA as a matter of law.
The plaintiff argues that because the plaintiff himself never left the state of
Florida, never agreed to leave the state of Florida, and was never asked to leave the
state of Florida, the MCA exemption is inapplicable. The defendant owner, Robert
Muriedas, indicated that the plaintiff could have been asked to leave the state of
Florida, but was never asked to leave the state.
Whether the motor carrier exemption applies depends on two things: 1. the class
to which an employer belongs; and 2. the class of work with which an employee is
involved. Walters v. American Coach Lines of Miami, Inc., 575 F.3d 1221, 1227 (11th
Cir. 2009). In order for an employee to be subject to the motor carrier exemption, there
are two requirements. Id. The first prong to be met is that the business of the employer
must be subject to the jurisdiction of the Secretary of Transportation under the MCA.
Id. The second prong that must be met is that the business activities of the employee
must affect directly “the safety of operation of motor vehicles in the transportation on
the public highways of passengers or property in interstate commerce or foreign
commerce within the meaning of the Motor Carrier Act.” Id, quoting Baez v. Wells
Fargo Armored Service Corp., 938 F.2d 180, 182 (11th Cir. 1991). Moreover, “[t]he
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exemption of an employee from the hours provisions of the Fair Labor Standards Act
under section 13(b)(1) depends both on the class to which his employer belongs and on
the class of work involved in the employee's job.” 29 U.S.C. § 782.2(a) (2002).
There is no dispute that the plaintiff was involved in activities directly affecting
the safety of the operation of motor vehicles. The question then arises of whether the
plaintiff was involved in activities directly affecting the safety of the operation of motor
vehicles in interstate commerce. “Where the employee’s continuing job duties have no
substantial direct effect on the safety of operation of motor vehicles in interstate
commerce, or where such activities are so trivial, casual, and insignificant as to be de
minimus, the exemption does not apply.” Major v. Chons Bros., Inc., 53 P.3d 781, 784
(Colo. Ct. App. 2002) (citing to 29 C.F.R. § 782.2(b)(3); and Opelika Royal Crown
Bottling Co. V. Goldberg, 299 F.2d 37, 43 (5th Cir. 1962).
The plaintiff never left the state of Florida for purposes of his employment with
the defendant. The plaintiff never agreed to leave the state of Florida for work, nor was
he ever asked to do so. While the defendant owner, Robert Muriedas indicated that the
defendant could have been asked to leave the state of Florida, the plaintiff never left
the state. Accordingly, the undersigned finds that the second above-mentioned prong
has not been met, and summary judgment should be granted to the extent that the
motor carrier act does not apply to the plaintiff in this matter because the plaintiff’s class
of work did not involve interstate commerce.
RULING
Based on the foregoing, it is ORDERED AND ADJUDGED that the Defendants’
Motion for Partial Summary Judgment (DE # 31, 1/22/12) is DENIED and the Plaintiff’s
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Motion for Summary Judgment (DE # 36, 1/30/12) is GRANTED. The MCA exemption
will not apply to the work performed by the plaintiff in this matter because the plaintiff
was not involved in interstate commerce.
DONE AND ORDERED in Chambers, Miami, Florida, this 15th day of March,
2012.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All Counsel of Record
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