Jones v. L & G Trucking, LLC et al

Filing 44

MEMORANDUM OPINION & ORDER: 1) Pla's motion for s/j 25 ; Dfts' Cross-Motion for s/j 29 and Pla's Mot to Strike 30 are DENIED; 2) Within 20 days from the DOE of this order, the parties shall file a joint status report setting forth mutually agreed available dates for a PTC and whether they would be amenable to a court-facilitated settlement conference. Signed by Judge David L. Bunning on 3/29/17.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 15-40-DLB-HAI
ANTHONY W. JONES, on behalf of
himself and those similarly situated

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

L&G TRUCKING, LLC and EUGENE T. CALDWELL

DEFENDANTS

********************
I.

Introduction
This is an action brought by a truck driver against his employer for overtime pay

under the Fair Labor Standards Act (FLSA). The case turns on whether the Plaintiff falls
under FLSA’s motor carrier exemption, which in turn depends on whether Plaintiff’s job
duties could reasonably have involved interstate driving. Plaintiff and Defendants marshal
evidence that answers that question in two different ways. As a result, material facts
remain in dispute, and summary judgment is not warranted.
II.

Factual and Procedural Background
Defendant L&G Trucking, LLC (L&G) is a trucking company that operates out of

Rockcastle County, Kentucky. (Doc. # 9 at ¶¶ 5-6). Defendant Eugene T. Caldwell is the
owner of L&G. (Doc. # 25-3 at 4). L&G “has several customers throughout the United
States including customers in Berea, Kentucky.” (Doc. # 28-2 at ¶ 8). “On an everyday
basis, several of L&G’s trucks and drivers are operating interstate throughout several

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states.” (Id. at ¶ 5).
In February 2013, Plaintiff Anthony Jones was hired by L&G as a driver. (Doc. # 381 at ¶ 5). For the first six months of his employment, Jones “primarily was utilized to
service the needs of L&G’s Berea, KY customer base.” (Doc. # 28-1 at ¶ 7). Jones claims
that he is owed overtime pay under the federal Fair Labor Standards Act (FLSA) for hours
that he worked in excess of forty per week from February 17, 2013 to August 30, 2013.1
Defendants argue that Jones is exempt from FLSA because he was subject to the
jurisdiction of the Department of Transportation (DOT) as an interstate driver.
According to Jones, he was hired by L&G to be “a shuttler at the Hitachi facility
located in Berea, Kentucky.” (Doc. # 38-1 at ¶ 8). Jones claims that L&G’s head of
operations, Chris Nelson, told Jones when he was hired that L&G “had just picked up the
Hitachi facility in Berea, Kentucky as a new account and that they needed local
drivers/shuttlers specifically to work at that site.” (Id. at ¶ 9). Each driver, including Jones,
was “assigned a specific set route,” and “[n]o driver was subject to performing any other
duties or driving any other routes other than their assigned route unless they chose to do
so.” (Id. at ¶ 7). “At all times between February 2013 and August 2013,” Jones’s
“assignment was a local assignment, principally confined to shuttling trailers around to the
various buildings all located at the Hitachi facility in Berea, Kentucky and other local
facilities.” (Id. at ¶ 13). “In contrast to Defendants’ over-the-road or long-haul drivers,” the

1

Although Plaintiff styled his Complaint as a collective action under FLSA (Doc. # 1), the
motions presently before the Court deal only with Jones’s individual claim. For that reason,
the Court will not resolve in this Memorandum Opinion & Order whether other L&G
employees are “similarly situated” or whether certification is warranted. See 29 U.S.C.
§ 216(b).

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“local drivers like [Jones] and the other shuttlers who worked at the Hitachi plant had no
expectation of driving over-the-road routes or interstate routes.” (Id. at ¶ 10). “For this
reason, there was no discussion that [Jones] could be called upon to drive an interstate
route.” (Id.) Instead, local drivers like Jones could pick up interstate routes only if the
routes were available and the driver volunteered. (Id. at ¶ 11). But “there were few
opportunities to pick up additional work because all work was specifically assigned to the
driver of each specific route.” (Id. at ¶ 7). Jones claims that he did not volunteer for and
did not drive an interstate route until August 30, 2013, when he volunteered to drive from
Kentucky to St. Louis, Missouri. (Id. at ¶¶ 18, 19). Because Jones did not drive interstate
routes, “neither [he] nor any of Defendants’ other local drivers were required to keep a
DOT-compliant log book,” and there was no restriction on the number of hours he could
work per week. (Id. at ¶¶ 14, 17). Timothy Philbeck, an employee of L&G from December
2012 to June 2013 who drove an interstate route from Berea, Kentucky to Seymour,
Indiana, submitted a declaration corroborating Jones’s claims. (Doc. # 38-3).
Defendants offer a different description of L&G’s route assignments, the
requirements of Jones’s job, and the likelihood of interstate trips for a driver like Jones.
According to Defendant Caldwell, L&G’s owner, new drivers at L&G are “not hired for a
specific route but, instead, all drivers are expected to operate as commercial truck drivers
on any route that may be assigned to them.” (Doc. # 28-2 at ¶ 6). Drivers like Jones “who
serve the customer base in Berea, Kentucky are on call to perform any driving task that
may be assigned to them including out of state routes.” (Id. at ¶ 8). Such assignments are
“not uncommon” for drivers in Berea, who may “be ordered by L&G to take a load of goods
to an out of state destination.” (Id. at ¶ 9). To the best of Caldwell’s knowledge, “every
3

driver who has serviced the Berea area has been called upon and ordered to take an out
of state load at some point during their employment.” (Id. at ¶ 12). Caldwell asserts that
taking out-of-state routes is not voluntary, claiming that “[a]ll drivers who serve the Berea
area customers are informed that they are subject to being called upon to make an out of
state run and that they are expected to comply with said order,” and that if they do not
comply with an order to drive an interstate route “the driver would be terminated.” (Id. at
¶¶ 10, 14). Caldwell offers a different account of the timing (and ultimate destination) of
Jones’s out-of-state trip, asserting that “[w]ithin approximately three months of Anthony
Jones’s employment,” Jones was ordered to take a load to Kansas City, Missouri for
delivery, and that if he did not do so, he would have been fired. (Id. at ¶¶ 15-18). Caldwell
further explained that all of L&G’s trucks “are fully insured and licensed for purposes of all
transportation both interstate and intrastate,” and that L&G complied with DOT regulations
in hiring Jones and other drivers because “regardless of where their route may be
assigned,” “each driver is subject to having to make an out of state run during their
employment.” (Id. at ¶¶ 19-20, 22). Nelson, L&G’s head of operations, submitted an
affidavit corroborating Caldwell’s statements. In particular, Nelson emphasized that “[a]ll
drivers who work in the Berea KY area are subject to being called upon to move out of
state loads on a daily basis and it is not uncommon for such drivers to be ordered to do so
on a frequent basis.” (Doc. # 28-1 at ¶ 10). He also stated that “upon hire it was explained
to Mr. Jones that as the need arose he would be called upon to perform other duties as a
truck driver other than serving the Berea based customers including making out of state
runs.” (Id. at ¶ 7). Nelson agreed with Caldwell that “[w]ithin approximately 3 months of
his initial employment, Mr. Jones was ordered to move a load of goods from Berea, KY to
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Kansas City, MO,” and that if Jones had not done so he would have been terminated. (Id.
at ¶¶ 8-9). Nelson added that the goods Jones moved at the Berea site were “fully finished
products consisting of shocks and struts” which Jones brought to a storage area, where the
product remained “for only a short time prior to being delivered to the ultimate customer.”
(Id. at ¶¶ 13-15).
Plaintiff moved for summary judgment on his FLSA overtime claim. (Doc. # 25).
Defendants responded (Doc. # 28) and, in an identical filing, cross-moved for summary
judgment (Doc. # 29). Plaintiff moved to strike Defendants’ cross-motion as untimely
because the dispositive motion deadline had lapsed and moved to strike the identical
response as procedurally improper because Defendants sought affirmative relief in a
responsive brief (Doc. # 30). Plaintiff replied to Defendants’ summary judgment response
(Doc. # 38) and responded to Defendants’ cross-motion (Doc. # 42). Defendants did not
reply in support of their cross-motion. Defendants responded to the motion to strike (Doc.
# 41) and Plaintiff replied (Doc. # 43).

Plaintiff’s motion for summary judgment,

Defendants’ cross-motion, and Plaintiff’s motion to strike are ripe for the Court’s review.
III.

Analysis
A.

Standard of Review

Summary judgment is appropriate when there is no genuine dispute about any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The moving party has the ultimate burden of persuading the Court that

5

there are no disputed material facts and that he or she is entitled to judgment as a matter
of law. Id. Once a party files a properly supported motion for summary judgment by either
affirmatively negating an essential element of the non-moving party’s claim or establishing
an affirmative defense, “the adverse party must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 250. “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party].” Id. at 252. Because the
parties present cross-motions, the Court must “evaluate each motion on its own merits and
view all facts and inferences in the light most favorable to the non-moving party.” Beck v.
City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004) (internal quotation marks omitted).
B.

Plaintiff’s Motion for Summary Judgment

The FLSA requires covered employers to provide overtime pay to employees who
work more than forty hours per week. 29 U.S.C. § 207. Plaintiff moves for summary
judgment, arguing that he has satisfied all the requirements for a FLSA overtime pay claim.
(Docs. # 25, 25-1). Defendants do not dispute (1) that Caldwell and L&G Trucking are
covered under FLSA as “employers,” (2) that L&G had an annual gross revenue in excess
of $500,000 during the time period relevant to Jones’s claim, or (3) that L&G’s employees
regularly handle L&G trucks that were manufactured outside the state of Kentucky,
satisfying FLSA’s interstate commerce prong. (Doc. # 25-1 at 6-11). Nor do Defendants
dispute Plaintiff’s calculation of overtime compensation of $4,672 or his entitlement to
mandatory liquidated damages in the same amount. (Id. at 10-12); see 29 U.S.C. § 216(b).
Instead, Defendants oppose summary judgment on the ground that Jones is exempt from

6

FLSA’s overtime pay requirements under 29 U.S.C. § 213.
Exemptions under § 213 are “treated as affirmative defenses and the defendant
bears the burden of proving entitlement to them.” Franklin v. Kellogg Co., 619 F.3d 604,
611 (6th Cir. 2010). Defendants assert this affirmative defense in their response to
Plaintiff’s summary judgment motion and their own cross-motion for summary judgment.
(Doc. # 28 at 6, 11; Doc. # 29 at 6, 11). Plaintiff argues that Defendants have forfeited2 the
affirmative defense by not raising it in their Answer and that Jones is entitled to summary
judgment as a result. (Doc. # 38 at 2-3, 5-6).
The first question, then, is whether Defendants in fact forfeited the affirmative
defense. This question is critical because, as explained above, Defendants otherwise offer
no response to Plaintiff’s summary judgment motion. Although neither party mentions it,
in their Answer, Defendants “assert all affirmative defenses available and incorporate the
same herein by reference.” (Doc. # 9 at ¶ 45). The Court is spared the tedious inquiry into
whether such a boilerplate assertion is an adequate statement under Federal Rule of Civil
Procedure 8(c) because in the Sixth Circuit, it is well established that a “failure to raise an
affirmative defense by responsive pleading does not always result in [forfeiture].” Moore,
Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993). Rather, “[a] district
court may, in its discretion, allow a defendant to raise an affirmative defense for the first

2

The Court uses “forfeiture” instead of “waiver” to describe what can happen when a
defendant fails to plead an affirmative defense. “Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment or abandonment of
a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks
omitted). Because failure to plead an affirmative defense under Rule 8(c) need not be
intentional for a party to lose its right to raise the defense, “forfeiture” is the more precise
term. See Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 343 n.2 (D.C. Cir.
1997).

7

time in a motion for summary judgment if doing so does not result in either surprise or
prejudice to the plaintiff.” Lauderdale v. Wells Fargo Home Mortg., 552 F. App’x 566, 573
(6th Cir. 2014). That comports with the purpose of Rule 8(c), which is “to give the opposing
party notice of the affirmative defense and a chance to rebut it.” Moore, 992 F.2d at 1445
(citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Foundation, 402 U.S. 313, 350 (1971)).
“As a practical matter, courts may excuse the general rule of forfeiture when amendment
is proper under Federal Rule of Civil Procedure 15(a),” which is “when justice so requires.”
Hopkins v. Chartrand, 566 F. App’x 445, 449 (6th Cir. 2014); Fed. R. Civ. P. 15(a)(2). That
standard “reinforces the principle that cases should be tried on their merits rather than the
technicalities of pleadings.” Inge v. Rock Fin. Corp., 388 F.3d 930, 937 (6th Cir. 2004)
(internal quotation marks omitted); see also Moore, 992 F.2d at 1445 (“Where the matter
is raised in the trial court in a manner that does not result in unfair surprise . . . technical
failure to comply precisely with Rule 8(c) is not fatal.” (internal quotation marks omitted)).
Plaintiff argues that Defendants specifically disavowed this affirmative defense by
denying that Jones was “engaged in commerce” within the meaning of 29 U.S.C. §§ 206
and 207. (Doc. # 1 at ¶ 7; Doc. # 9 at ¶ 7). Not quite. As discussed infra, pp. 10-17, the
exemption Defendants invoke requires a reasonable likelihood that Jones would have
driven his truck interstate. As Plaintiff acknowledges, the Answer’s denial refers to
“commerce” under FLSA, not the meaning of “interstate” in Defendants’ claimed exemption.
(See Doc. # 38 at 6 n.3). The concepts are not necessarily interchangeable. See Baird
v. Wagoner Transp. Co., 425 F.2d 407, 410 (6th Cir. 1970) (“While the parties have
stipulated that they are engaged in interstate commerce for the purposes of the FLSA, such
stipulation does not necessarily require a conclusion that their activities were in interstate
8

commerce for the purposes of the [motor carrier exemption].”). Moreover, Defendants’
Answer denied that Plaintiff was a non-exempt Shuttle Driver and denied that his job did
not involve the carriage of goods or materials in interstate commerce, consistent with an
affirmative defense based on the exemption. (Doc. # 1 at ¶¶ 8, 10; Doc. # 9 at ¶¶ 8, 10).
For those reasons, a blanket denial that Jones was “engaged in commerce” within the
meaning of the FLSA does not make the belated assertion of this affirmative defense an
unfair surprise for Plaintiff.
Plaintiff also claims in his motion to strike briefing that he “would be severely
prejudiced if [Defendants] were allowed to interpose for the first time an affirmative defense
regarding the motor carrier act exemption after the close of discovery and over a month
after the dispositive motion deadline.” (Doc. # 43 at 3). But Jones does not explain how
he would be prejudiced. Indeed, Jones had the opportunity to reply to Defendants’
response and respond to their cross-motion. (Docs. # 38, 42). Jones also provided the
Court with declarations from Plaintiff and another L&G employee, Philbeck, and excerpts
from the deposition of Chris Nelson to rebut Defendants’ affirmative defense. (Docs. # 381, 38-2, 38-3; 42-1, 42-2, 42-4). This is not a situation, like in Hopkins v. Chartrand, where
defendants won summary judgment on a “glaring[ly]” incomplete factual record, after a
FLSA exemption was raised for the first time at summary judgment. 566 F. App’x at 447.
Indeed, in this case, the factual record is sufficiently developed to reveal disputed material
facts that preclude summary judgment for either side. For those reasons, Plaintiff has not
shown prejudice, and the Court will allow Defendants to raise their affirmative defense in
response to Plaintiff’s motion for summary judgment despite their failure to plead it in their
Answer.
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C.

Plaintiff’s Motion to Strike

There is one more procedural hurdle to clear before considering the merits of the
summary judgment motions. Plaintiff moves to strike Defendants’ cross-motion as untimely
and moves to strike the requests for affirmative relief in Defendants’ identical response to
Plaintiff’s summary judgment motion as procedurally improper. Although Defendants’
cross-motion is untimely, once again, Plaintiff was not prejudiced. Plaintiff requested that
the cross-motion be stricken “to alleviate the time and expense that would be necessitated
by drafting and filing a Memorandum in Opposition.” (Doc. # 30-1 at 1). As mentioned,
Defendants’ cross-motion was identical to their response to Plaintiff’s motion, meaning that
any additional time and expense by Plaintiff in responding to the cross-motion was likely
insignificant. (Indeed, Plaintiff’s reply in support of their motion for summary judgment and
their opposition to Defendants’ cross-motion were quite similar, though not identical. (Docs.
# 38, 42)). Ultimately, Plaintiff’s motion to strike does not affect the Court’s decision on
summary judgment, because the same factual disputes that prohibit summary judgment
for Plaintiff would also prohibit summary judgment for Defendants. Because there is no
prejudice, the Court will deny Plaintiff’s motion to strike Defendants’ cross-motion.
D.

The Motor Carrier Exemption

Exemptions to FLSA’s overtime provisions “are to be narrowly construed against the
employers seeking to assert them.” Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir.
1997) (internal quotation marks and alteration omitted). “The employer bears the burden
of proving that the exemption applies to the employee in question.” Id. In this case,
Plaintiff is entitled to summary judgment “unless the defendant can come forward with
evidence at least creating a genuine issue of material fact as to whether [Jones] meets
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each and every element of the exemption.” Martin v. Indiana Michigan Power Co., 381
F.3d 574, 578 (6th Cir. 2004). Because Defendants have identified genuine issues of
material fact about whether Jones is exempt from FLSA’s overtime provisions, Plaintiff’s
motion for summary judgment will be denied.
“[A]ny employee with respect to whom the Secretary of Transportation has power
to establish qualifications and maximum hours of service pursuant to [49 U.S.C. § 31502]”
is exempt from FLSA’s overtime requirements. 29 U.S.C. § 213(b)(1). The Secretary of
Transportation’s jurisdiction under 49 U.S.C. § 31502, the Motor Carrier Act, extends to
employees of “a motor carrier.” 49 U.S.C. § 31502(b)(1). Courts look to the Department
of Labor’s regulation interpreting the motor carrier exemption to FLSA, which has two
requirements:
!

The employer must be a motor carrier–a person “providing motor vehicle
transportation for compensation.” 49 U.S.C. § 13102(14); 29 C.F.R. §
782.2(a)(1).

!

The employee must “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 foreign commerce.” 29
C.F.R. § 782.2(a)(2).

See also Benson v. Universal Ambulance Serv., Inc., 675 F.2d 783, 785 (6th Cir. 1982) (for
motor carrier exemption to attach, “employer must be (1) a carrier (2) in interstate
commerce.”).
The parties agree that L&G is a “motor carrier” and that the small vehicle exception
does not apply. (Doc. # 28 at 12; Doc. # 38 at 8). The parties also agree that Jones, as
11

a driver, was directly engaged in safety-affecting activities. (Doc. # 28 at 12-13; Doc. # 38
at 8). The only contested issue is whether Jones’s driving was sufficiently related to
interstate commerce to bring him within DOT’s jurisdiction, and thus the motor carrier
exemption to FLSA.
1.

Practical continuity of movement in interstate commerce.

The first way Defendants attempt to satisfy the interstate commerce prong of the
motor carrier exemption is by showing that Jones’s “[p]urely intrastate transportation” was
“part of a ‘continuous stream of interstate travel.’” Walters v. Am. Coach Lines of Miami,
Inc., 575 F.3d 1221, 1229 (11th Cir. 2009); 29 C.F.R. § 782.7(b)(1) (“Transportation within
a single State is in interstate commerce within the meaning of [FLSA] where it forms a part
of a ‘practical continuity of movement’ across State lines from the point of origin to the point
of destination.”). Defendants argue that Jones’s transportation of finished products to a
storage facility for a short period of time while the products awaited shipment to an ultimate
customer qualifies. But Defendants have offered no evidence to support their contention
that any of the products Jones transported were ever moved out of Kentucky. Notably,
Nelson’s affidavit, which refers to “fully finished product[s]” and “ultimate customer[s],”
makes no mention of where the “shocks and struts” Jones transported ended up–and
Defendants point to no record evidence to answer that question. (Doc. # 28-1 at ¶¶ 13-15).
Vague references to products and customers, divorced from any geographical specificity,
do not establish that the materials Jones transported were in a continuous stream of
interstate travel.
2.

Reasonable expectation of travel in interstate commerce.

The second way Defendants attempt to establish a link to interstate commerce is by
12

showing that in the regular course of his job, Jones reasonably expected to make one of
L&G’s interstate trips. 29 C.F.R. § 782.2(b)(3); Morris v. McComb, 332 U.S. 422, 432-33
(1947). In Morris v. McComb, the Supreme Court held that, although less than 4% of the
trips by a general motor carrier business were interstate, the exemption applied to drivers
because “in the normal operation of the business, these strictly interstate commerce trips
were distributed generally throughout the year and their performance was shared
indiscriminately by the drivers . . . and was thus a natural, integral, and apparently
inseparable part” of the drivers’ jobs. Id. “The Supreme Court noted that, in practical
terms, the safety concerns facing a carrier who sent every driver on an interstate trip would
be the same if the carrier sent only some or most of its drivers on interstate trips.” Songer
v. Dillon Resources, Inc., 618 F.3d 467, 474 (5th Cir. 2010) (citation omitted). “Therefore,
the [Interstate Commerce Commission, the predecessor to the DOT] had the power to
regulate all of defendant’s drivers, and the existence–rather than the exercise–of that
power was the test as to whether the employees were entitled to overtime pay under the
FLSA.” Id. Accordingly, Plaintiff himself agrees that a driver who makes no interstate trips
in a particular time period can still be subject to the DOT’s jurisdiction, and therefore the
motor carrier exemption, if the driver could reasonably expect to make one of the
employer’s interstate trips. (Doc. # 38 at 9 (citing Federal Highway Administration Notice
of Interpretation, 46 Fed. Reg. 37,902 (1981)); see also Finney v. Free Enter. Sys., Inc.,
No. 3:08-cv-383, 2012 WL 5462971, at *4-5 (W.D. Ky. Nov. 8, 2012).
The facts put forth by the parties diverge sharply on this point. First, the parties
disagree about when Jones drove from Kentucky to Missouri. Although no interstate trip
is required for the motor carrier exemption to apply, whether one occurred within the six
13

months at issue here could shed light on whether such a trip was “reasonably expected.”
Jones claims that he volunteered to drive to St. Louis, Missouri, on August 30, 2013 (right
after the period for which he seeks overtime pay). In support, Jones provides his own
declaration (Doc. # 38-1 at ¶ 19) and a driver’s log from August 31, 2013 reflecting a trip
from Kentucky to several cities in Missouri (though not St. Louis) (Doc. # 25-7). Caldwell
and Nelson assert in their affidavits that Jones took an interstate trip to Kansas City,
Missouri, and that the trip occurred within “approximately 3 months” of Jones’s initial
employment (putting it around May or June).

(Doc. # 28-1 at ¶ 8; 28-2 at ¶ 15).

Defendants produced no documentation of a May or June trip, despite agreeing that such
a trip would generate paperwork. (Doc. # 38-2 at 8). A different L&G employee “[could]
not recall a single instance between February 2013 and June 2013” when Jones drove an
interstate trip. (Doc. # 38-3 at ¶ 15). The disagreement about the Missouri trip is just one
example of the factual disputes in this case. But even if Jones took no interstate trip until
August 31, Defendants still raise sufficient facts to dispute whether he had a reasonable
expectation of travel in interstate commerce as part of his job. See Wells v. A.D. Transp.
Express, Inc., No. 15-cv-11324, 2016 WL 3213396, at *5 (E.D. Mich. June 10, 2016)
(“actual driving need not necessarily occur in order for the driver to be exempt; the
exemption begins the date the driver could have been called up on to, or actually did,
engage in the carrier’s interstate activities”) (collecting cases).
On that point, too, the evidence diverges about how common it is for drivers like
Jones to drive interstate routes. Defendants say that it is “not uncommon” for Berea
drivers, like Jones, to be ordered to make out-of-state drives, and that it happens “on a
frequent basis.” (Doc. # 28-1 at ¶ 10; Doc. # 28-2 at ¶ 9). In fact, Defendant Caldwell
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asserts that “every driver who has serviced the Berea area has been called upon and
ordered to take an out of state load at some point during their employment.” (Doc. # 28-2
at ¶ 12).3 On the other hand, Jones and Philbeck maintain that Jones was specifically
assigned to Berea and that there were “few opportunities” for interstate routes. (Doc. # 381 at ¶ 7; Doc. # 38-3 at ¶ 8). Plaintiff argues that any expectation of interstate driving was
de minimis, and that therefore the exemption does not apply. (Doc. # 38 at 10-11). But
whether the expectation was actually de minimis is exactly the factual question that
precludes summary judgment–according to Defendants’ affidavits, the interstate driving
was “not uncommon,” “frequent,” and part of Jones’s job description.
Reich v. American Driver Service, a Ninth Circuit case cited by Plaintiff, is not to the
contrary. The Reich court held that, where an employer is not engaging in interstate
commerce at all for a period of several months, its drivers are not exempt from FLSA’s
overtime provisions during that time even though the drivers could expect to re-enter
interstate commerce as soon as their employer did. Reich v. Am. Driver Serv., Inc., 33
F.3d 1153, 1157 (9th Cir. 1994). By contrast, here, Defendants offer undisputed evidence
that L&G drivers actually engaged in interstate commerce at all relevant times. (Doc. # 282 at ¶¶ 4-5). Reich is of no help to Plaintiff.

3

Plaintiff objects to Defendants’ characterization of the frequency of interstate travel under
Federal Rule of Evidence 1002, which requires that an original writing be provided in order
to prove its content. (Doc. # 38 at 8-9 n.4 (citing Fed. R. Evid. 1002)). Plaintiff’s argument
is that, because the out of state trips must be documented, Defendants must rely on those
documents to discuss the trips’ frequency. That objection is overruled. Although the most
persuasive evidence to prove Defendants’ ultimate contention may be documentary
evidence, Defendants are not attempting to prove the content of the documents as Rule
1002 requires. See O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 598 (6th Cir. 2009)
(Rule 1002 does not bar statements in an affidavit about hours worked even when time
sheets were available). Instead, Defendants are describing facts within their personal
knowledge as owner and manager of L&G, which is not prohibited by Rule 1002.

15

There are also factual disputes regarding whether the possible interstate trips were
voluntary or mandatory. Whether the trips were voluntary or mandatory could help show
if interstate trips were a “natural,” “integral,” and “inseparable” part of Jones’s job, as in
Morris, or merely a remote possibility insufficient to trigger DOT jurisdiction. Morris, 332
U.S. at 433; see also Walters v. Am. Coach Lines of Miami, Inc., 569 F. Supp. 2d 1270,
1294-95 (S.D. Fla. 2008), aff’d, 575 F.3d 1221 (11th Cir. 2009) (finding a “factual issue”
about whether university shuttle bus drivers “could reasonably be expected to drive routes
in interstate commerce” where the drivers “may be asked to do general charter work” but
“are not required to perform these assignments”). Plaintiff claims that interstate trips were
taken voluntarily. (Doc. # 38-1 at ¶ 7). Defendants claim that interstate trips could not be
refused. (Doc. # 28-2 at ¶ 10). The Court cannot resolve this dispute on summary
judgment.
There is additional evidence that could be relevant to the likelihood of interstate trips,
but all of it is disputed. Jones asserts that he was not required to keep a DOT-compliant
log book, which suggests he was not subject to DOT’s jurisdiction and therefore falls
outside the exemption. (Doc. # 38-1 at ¶ 14). But Defendants argue that they followed
DOT rules in hiring Jones and other drivers, which suggests that the exemption applied.
(Doc. # 28-2 at ¶¶ 19-22).4
The inescapable conclusion is that there is some evidence on each side of the
scales, and the Court cannot decide which side weighs more at this stage. For the same

4

Defendants’ argument that Jones’s claim should be denied because he was not an hourly
worker and had no expectation of overtime pay (Doc. # 28 at 16) is without merit.
Defendants do not even attempt to explain how those facts relate to FLSA’s requirements
or the motor carrier exemption.

16

reasons that summary judgment is not available to Plaintiff, it is not available to Defendants
either. Neither side can show that there are no disputes of material fact or that they are
entitled to summary judgment as a matter of law. It must be left to the trier of fact to weigh
the credibility of Plaintiff and Defendants’ characterizations of Plaintiff’s duties.
Accordingly,
IT IS ORDERED as follows:
1.

Plaintiff’s Motion for Summary Judgment (Doc. # 25); Defendants’ Cross-

Motion for Summary Judgment (Doc. # 29); and Plaintiff’s Motion to Strike (Doc. # 30) are
DENIED; and
2.

Within twenty (20) days from the date of the entry of this Order, the

parties shall file a joint status report setting forth mutually agreed available dates for a
final pretrial conference and trial, and whether they would be amenable to a court-facilitated
settlement conference.
This 29th day of March, 2017.

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