Veney et al v. John W. Clarke, Inc. et al

Filing 36

MEMORANDUM AND ORDER denying Defendants' 25 Motion for Partial Summary Judgment. Signed by Judge James K. Bredar on 6/27/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

. lOlij JUN21 P 3: 38

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STACEY VENEY et af.,

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Plaintiffs

v.

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JOHN W. CLARKE, INC., et af.,

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Defendants

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CIVIL NO. JKB-13-2410

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MEMORANDUM

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AND ORDER

I. Background
Plaintiffs Stacey Veney, Torres Savage, Emory Rhyne, Robert King, and Melvin Brunson
filed this suit seeking unpaid wages allegedly due to them under the federal Fair Labor Standards
Act ("FLSA"), 29 U.S.c.
Code Ann., Lab. & Empl.

SS

201-219, and the Maryland Wage and Hour Law ("MWHL"), Md.

SS

3-401-3-431

(LexisNexis 2008 & Supp. 2013). Plaintiffs have

claimed that Defendants failed to pay them minimum wage for all hours worked and have also
claimed entitlement to overtime pay for hours worked in excess of forty hours per week.
Plaintiffs were laborers who picked up trash and recyclables and threw them into Defendants'
trucks. Defendants are three trash and recyclables collection companies-John

W. Clarke, lnc.;

Clarke Refuse Services, Inc.; and Holland Refuse Service, lnc. (collectively, "Clarke Refuse")-and Wesley M. Clarke ("Clarke"), who is an owner and/or manager and operator of all three
businesses. Emory Rhyne accepted Defendants' offer of judgment and is no longer a party to the
case. (ECF Nos. 28, 31, 32.)

.

-

-, 11 "/

,

Pending before the Court is Defendants' motion' for partial summary judgment.

(ECF

No. 25.) Defendants seek judgment in their favor on the two counts for overtime pay, Count III
(under the MWHL) and Count IV (under the FLSA).

They contend they are exempt from the

overtime pay obligations of these two statutes because they are covered by the Motor Carrier
Act's ("MCA") exemption as to employees of a motor private carrier for whom the MCA grants
jurisdiction
maximum

to the U.S. Secretary of Transportation to set requirements for qualifications and
hours of service when needed to promote safety of operation.

931502(b)(2).

See 49 U.S.c.

The motion has been briefed (ECF Nos. 26, 30, 33), and no hearing is necessary,

Local Rule 105.6 (D. Md. 2011). The motion will be denied.

II. Standard for Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catretl, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)).

The burden is on the moving party to demonstrate the absence of any

genuine dispute of material fact. Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970).

If

sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

However, the "mere

existence of a scintilla of evidence in support of the [opposing party's] position" is insufficient to
defeat a motion for summary judgment.

Id. at 252. The facts themselves, and the inferences to

be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scot! v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
2

affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(l).

Supporting and opposing affidavits are to be made on personal

knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Rule 56(c)(4).

III. Facts
Defendants admit they have never paid Plaintiffs overtime for hours worked in excess of
forty in a workweek.

(Defs.' Resp. to Pis.' Request for Admission 9, ECF No. 30-4.) Clarke

testified Plaintiffs' work hours in a typical workweek varied "between somewhere in the low 40s
to the low 50s."

(Clarke Dep. 43:7-8, Feb. 4, 2014, ECF No~ 30-6.)

Whether Plaintiffs were

entitled to overtime pay for their work hours over forty in any given week depends upon the
nature of the activities of their employment and certain attributes of Clarke Refuse's business.
As to the basic nature of Plaintiffs' job, King testified in deposition that his job with
Clarke Refuse was "[w]orking on the trash truck throwing trash."

(King Dep. 6:8-9, Feb. 7,

2014, ECF No. 25-7.) The other Plaintiffs testified similarly: "I was a laborer. I threw trash. 1
collected trash.

I put it on the truck and we either took it to the dump or recycling plant, and

that's my job." (Brunson Dep. 5:20-6:1,

Feb. 11,2014, ECF No. 25-8.)

"[I m]ainly just walk

behind or ran behind the truck and picked up the trash once you seen [sic] it." (Veney Dep.
14:1-2, Feb. 7, 2014, ECF No. 25-9.) "[I d]ump trash. 1 was a trash man." (Savage Dep. 24:21,
Feb. 7, 2014, ECF No. 30-3.) Veney also indicated that he "every now and then pack[ed] the
truck up," meaning the trash was compressed so the truck could be filled to capacity.

(Veney

Dep. 14:3-13.)
Clarke Refuse's foreman, Gordon Seymour, testified that one of the responsibilities of the
Plaintiffs is not to pick up hazardous materials, such as ammunition or paint (Seymour Dep.

3

20: 15-22:9-11,

Feb. 5, 2014, ECF No. 25-4), and King testified that he would not pick up gas

cans left out for collection "[b ]ecause they probably explode if you impact them" (King Dep.
12:3-20). Veney also testified he knew he was not supposed to take "[s]tuff like liquids, paint
cans, [or] certain things" that "[m]ight be harmful to you or it could damage the truck or
something like thaC'

(Veney Dep. 16: 8-18.) Similarly, Savage testified he knew he was not

supposed to collect certain things including gas containers because "common sense will tell you
that you don't mix gas with stuff that can be flammable or catch a vehicle on fire and have the
safety of the driver and the helpers in danger." (Savage Dep. 36:6-18.)
Plaintiffs

also testified

that they were given additional

responsibilities,

including

lubrication of mechanical parts and changing of tires on the trucks. (King Dep. 29: 1-8; Brunson
Dep.

10:7, 20-21;

acknowledged

Veney

Plaintiffs

Dep. 106:9-108:14;

Dep. 32:5-9;

were required

Savage

to perform

Dep.

19:1-12.)

maintenance

Clarke

and Seymour

on the trucks.

(Clarke

Seymour Dep. 34:20-36:1.)

As to the operation of Clarke Refuse's business, Clarke testified that Defendants pick up
residential trash and recycling and commercial trash and recycling.

(Clarke Dep. 12: 19-20.)

Clarke Refuse's largest client is Baltimore County, and the routes were located in "Overly [sic],
Parkville, Perry Hall, [and] Towson."

(ld. 13:1-2, 14:3.)1 Clarke estimated seventy percent of

Clarke Refuse's business was with Baltimore County.

(ld. 13:3-5.) As to what Defendants do

with what they collect from their Baltimore County routes, Clarke stated, "Take them where
Baltimore County tells us to take them."
stations were all in Maryland.
Cockeysville, Maryland.

(ld. 16:12-13.)

Seymour testified that the dumping

(Seymour Dep. 22:21-23:12.)

(ld. 23:13-15.)

Rec)'c!ables were taken to

Seymour described the process of depositing waste at

I The Court takes judicial notice that Overlea, Parkville, Perry Hall, and Towson are all located in
Baltimore County, Maryland.

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the dumping stations: "You pull in. You back up. Raise your tailgate. Push it off. And go on
your merry way.

Get your ticket after you pull off the scale."

(Id 22:17-20.)

dumping recyclables involved the same process as dumping trash.

He also said

(Id 23:16-24:2.)

Clarke

indicated that refuse and recyclablcs from commercial customers were dumped at a place on
Quad Avenue (Clarke Dep. 95:7-11, 102:11-103:1),
facility is in Maryland.

and the Court infers the Quad Avenue

Clarke Refuse is paid for the recyclables collected from commercial

customers and dumped at this facility. (Id 95:16-17,96:3-6.)
Clarke stated that refuse and recyclables that have been dumped "are loaded onto tractor
trailers, and they're taken basically out of state to different markets."

(Id 94:13-15.)

When

asked how he knew that happened, he said, "Because I was on the waste planning commission as
well as the head [sic] of Baltimore County, Charles Reighart ....

He tells me where it goes." (Id

97:3-5, 7.) His last time to attend a meeting of the commission was about five or six years
before his deposition was taken. (Id. 98:6-9.) When asked why it was of interest to him where
the materials went, Clarke replied, "Sometimes I wonder the same thing, but I do find it personally I find it interesting.

Some haulers probably don't care." (Id 101:16-18.)

Seymour

was also asked how he knew that Baltimore County sends its trash and recyclables out of state,
and he replied, "Word of guys and Baltimore County website," but then indicated he does not
look at the website. (Seymour Dep. 24:10-19.)
As to whether Defendants' trucks ever traveled out of state for refuse collection, Clarke
stated in his answers to interrogatories, "This is a rare occurrence.
Stewartstown,

Pennsylvania,

We did have a customer in

Erin Spring, where we picked up on September

14, 201\."

(Clarke's Answer to Interrog. 8, undated, ECF No. 30-8.) No other evidence has been found in
the record that Clarke Refuse's business involves out-of-state travel. Nor is there any evidence

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that Clarke Refuse solicits out-of-state customers or holds itself out as available for interstate
cartage.

Clarke Refuse's two trucks are registered with the U.S. DeIJartment of Transportation

("Dar);

on their biennial report to the DOT, Defendants describe the company operations as

"intrastate

non-hazmat

carrier."

(10/13/2012

Motor

Carrier

Identification

Report,

ECF

No. 25-3.)

IV. Applicable Statutes
A.

Fair Labor Standards Act
An employee to whom the FLSA's overtime coverage applies and who works more than

forty hours in a workweek is entitled to one and one-half times the employee's regular rate of
compensation

for all hours above forty.

29 U.S.C.

S

207(a)(1).

Employees to whom this

provision of the FLSA applies are those employees who in any workweek are "engaged in
commerce or in the production of goods for commerce, or [are] employed in an enterprise
engaged in commerce or in the production of goods for commerce." ld.
"Commerce" is defined in the FLSA as "trade, commerce, transportation, transmission,
or communication among the several States or between any State and any place outside thereof."
29 U.S.C.

S

203(b).

As relevant to this case, the FLSA also defines an "enterprise engaged in

commerce or in the production of goods for commerce" as
an enterprise that has employees engaged in commerce or in the production of
goods for commerce or that has employees handling, selling, or otherwise
working on goods or materials that have been moved in or produced for
commerce by any person[,] and is an enterprise whose annual gross volume of
sales made or business done is not less than $500,000 ....
29 U.S.C.

S 203(s)(l)(A).

Nevertheless, the mandate of

S 207

for payment of overtime does "not apply with respect

to any employee with respect to whom the Secretary of Transportation has power to establish

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qualifications

and maximum hours of service pursuant to the provisions of section 31502 of

title 49." 29 U.S.c.

S 213(b)(I).

B. Motor Carrier Act
Pertaining to the instant case, the Secretary of Transportation

is granted power to

"prescribe requirements for 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."
49 U.S.C.

S

31502(b).

Title 49. 49 U.S.c.

S

Secretary's jurisdiction

That grant of authority applies to transportation described in

In tum,

31502(a)(I).

S

S

13501 of

13501 in relevant part defines the scope of the

as being "over transportation

by motor carrier ...

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 ...

and ...

on a public highway."

The term "motor private carrier" is

defined as follows:
a person, other than a motor carrier, transporting property by motor vehicle when(A)the transportation is as provided in section 13501 of this title;
(B) the person is the owner, lessee, or bailee of the property being transported;
and
(C) the property is being transported for sale, lease, rent, or bailment or to
further a commercial enterprise.
49 U.S.C.

S 13102(15).

Despite the seeming incongruity between the exclusion of "motor carrier" from
definition of motor private carrier and the statement in

S

S

13102' s

13501 of the Secretary's jurisdiction as

being over transportation by motor carrier, it is apparently commonly accepted that the Secretary
has the power described in

S 31502(b)

to regulate qualifications and working hours of employees

of motor private carriers when needed to promote safety of operation. It seems that
reference to

s 1350 I, in conjunction

with

s 13102(15),

s 31502(b)'s

is intended to restrict the subject to be

regulated to transportation of property in interstate commerce and on public highways. Thus, the
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effect of the interplay between the FLSA and the MCA as applicable to this case is to exempt
from the FLSA's mandatory overtime coverage employees of motor private carriers transporting
property in interstate commerce on public highways when the activities of the employees affect
safety of operation. See Troull v. Stavola Bros., Inc., 107 F.3d 1104, 1106 (4th Cir. 1997).

C. Maryland Labor & Employment Code
Maryland's
the FLSA.

statutory right to overtime compensation is parallel to the same right under

Further, Maryland grants the same exemption as is granted in federal law by the

MCA exemption.

Md. Code Ann., Lab. & Empl. !j3-415(b)(1), (c)(1) (LexisNexis Supp. 2013).

Consequently, if the MCA exemption defeats Plaintiffs' claim under the FLSA, then it will also
defeat their state law claim to overtime compensation.

V. Analysis
Defendants admitted in their answer to the complaint that they engaged in interstate
commerce and are earning annual revenues in excess of $500,000.

(Defs.' Answer ~ 16;

Compl. ~ 16.) Therefore, they fall under the FLSA's overtime mandate unless they can show
they are exempt from it. Exemptions to the FLSA "are to be narrowly construed against the
employers seeking to assert them and their application limited to those establishments plainly
and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,
392 (1960).
It is well established that loaders of trucks transporting property in interstate commerce
fall within the classifications of employees covered by the MCA exemption.

Pyramid Motor

Freight Corp. v. Ispass, 330 U.S. 695, 706-07 (1947); Troutt, 107 F.3d at 1108.
determination

But the

as to whether an individual employee is within the classification of loader is

reached through judicial process by evaluating the facts as to the particular activities engaged in

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by that employee. Pyramid, 330 U.S. at 707-08; Troutt, 107 F.3d at 1108. "The question of how
[Plaintiffs spent their time working for Defendants] is a question of fact. The question whether
their particular activities excluded them from the overtime benefits of the FLSA is a question of
law .... " Icicle Seafoods. Inc v. Worthington, 475 U.S. 709, 714 (J 986).
The Court concludes no genuine dispute of material fact exists as to what Plaintiffs' work
activities were. The majority of their time, when they were not riding to and from the collection
routes, was spent picking up trash and recyclables and throwing them into Clarke Refuse's
trucks. But they were expected to use their discretion in deciding what to pick up, and they were
also required to perform truck maintenance tasks.
This Court has no difficulty finding from the facts before it that Plaintiffs' activities
affect the safety of the operation. Although their "loading" activities are not characterized by the
usual discretion as to where and how to stack cargo to assure an even distribution of weight or
the responsibility

to secure cargo to prevent its shift in transit, Plaintiffs regardless were

entrusted with an important responsibility not to pick up items that could be hazardous to the
operation of the truck.

Even if Plaintiffs exercised this discretion infrequently, it remained an

important element in their daily activities since an incorrect decision-for
containers and having them compacted into the truck's load--eould
consequences.

example, taking gas

have significantly disastrous

See Graham v. Town & Country Disposal a/Western Missouri, Inc., 865 F. Supp.

2d 952, 960-61 (W.D. Mo. 201l) (finding work of "trash throwers" affected safety of operation
where they had judgment and discretion as to avoidance of hazardous items). "[W]here, as here,
the employee retains some appreciable discretion in conducting the loading operation in the first
instance," the safety of the operation may be affected and the employer may, therefore, be
exempt from the FLSA's overtime provisions.

See Blankenship v. Thurston Motor Lines, Inc.,

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415 F.2d 1193, 1197 (4th Cir. 1969). See also Yellow Transit Freight Lines, Inc., 320 F.2d 495,
499 (8th Cir. 1963) ("the District Court is properly directed to the effect of the duties rather than
their duration").

In addition, Plaintiffs were required to perform certain maintenance tasks on the

trucks, and those tasks plainly affected the safety of the operation.

Thus, this element of the

exemption is met.
Plaintiffs have not contested whether the trash and recyclables being transported may be
considered property. The Court notes this issue was raised in another case, which concluded that
such material should be considered property. Graham, 865 F. Supp. 2d at 956-59. This Court is
not prepared to agree that trash is property.

It is true that the material at issue, both trash and

recyclables, has some economic value to Defendants because they are being paid to transport it
away from customers' property. It is also true that trash may be considered abandoned property,
but whether it remains property after it is put out for collection is unclear. However, the Court
need not resolve whether trash is property, because it is logical to view the recyclables as
property with economic value, and that is sufficient for the purpose of deciding this motion.
Defendants are able to sell recyclables collected from their commercial customers, so those items
possess intrinsic economic value. And it is reasonable to infer that Baltimore County may have a
property interest in recyclables collected by Clarke Refuse and taken to a dump where they may
be purchased by others from the County.

Consequently, even though Defendants possess the

recyclables for only a short amount. of time, their transporting them from the point of collection
to the point of disposal constitutes the transportation of property on public highways.
Thus, the remaining question is whether Defendants'
transportation in interstate commerce.
Court notes an enterprise's

transportation

Here is where Defendants' proof faik

of property was
At the outset, the

merely being engaged in interstate commerce, as is sufficient to

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trigger coverage under the FLSA, is insufficient to serve as the basis for the MCA exemption.
The latter is premised specifically upon transportation
Compare 29 U.S.c.

99

of property in interstate commerce.

203(b), (s)(1)(A), 207(a)(1), with 49 U.S.c.

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13051.

"The question whether commerce is interstate or intrastate must be determined by the
essential character of the commerce ....

" Atlantic Coast Line Ry. Co. v. Standard Oil Co. of

Kentucky, 275 U.S. 257, 268 (1927).
[I]nterstate continuity of transit is to be determined by a consideration of the
various factors of the situation. Chief among these are the intention of the owner,
the control he retains to change destination, the agency by which the transit is
effected, the actual continuity of the transportation, and the occasion or purpose of
the interruption.
Champlain Realty Co. v. Town of Bral/leboro, 260 U.S. 366, 377 (1922), quoted in Atlantic
Coast Line Ry. Co. v. Standard Oil Co. of New Jersey, 12 F.2d 541, 547 (4th Cir. 1926). "[T]he
essential nature of the traffic as a through movement to the point of ultimate destination [may be]
shown by the original and persisting intention of the shippers which was carried out." Baltimore
& o.S.WR.

Co. v. Sellle, 260 U.S. 166,173-74

interstate nature can be 'determined

(1922).

"Whether the transportation is of an

by reference to the intended final destination'

of the

transportation

when that ultimate destination was envisaged at the time the transportation

commenced."

Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 223-24 (2d Cir. 2002)

(citations omitted).

See also Burlington Northern, Inc. v. Weyerhaeuser Co., 719 F.2d 304, 308

(9th Cir. 1983). Mere contemplation that property may be further shipped from where it was
delivered does not amount to an original, persisting intention of a shipper that property is, in fact,
to be shipped to another place. Atlantic Coast Line Ry. v. Standard Oil of N),

12 F.2d at 545.

The "fixed and persisting intent" of the shipper as an essential characteristic of interstate traffic

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has been incorporated into opinions of the former Interstate Commerce Commission2
Ass'n a/Texas Warehousemen. et al.-Petition{or

Declaratory Order-Certain

See, e,g.,

For-Hire Motor

Carrier Transportation within Texas, No. MC-C-30194, 8 I.C.C. 2d 476, 481 (May 4, 1992);
Policy

Statement-Motor

Carrier

Interstate

Transportation-from

Out-of-State

through

Warehouses to Points in Same State, Ex Parte No. MC-207, 8 I.C.C. 2d 470, 472 (Apr. 27,
1992).
Defendants' evidence falls far short of establishing their "fixed and persisting intent" that
the trash and recyclables they transport to dumping facilities in Maryland are to be delivered to a
destination

outside the State of Maryland.

For one thing, Defendants

rely upon hearsay.

Clarke's deposition testimony and affidavit (ECF No. 34-1) on this point are clearly based upon
what he has heard from someone else. Seymour's deposition testimony is the same. Defendants
supply an affidavit from Michael Beichler, Chief of the Bureau of Solid Waste Management for
the Baltimore County Department of Public Works, who, on this critical point, simply states,
We require the contractors, such as John W. Clarke, Inc., to bring the recycling to
a landfill or transfer station. We then weigh the recycling and sell it to various
purchasers. Recyclables and goods made from them are shipped to various points
across the country, and even to China.
(Beichler Aff. ~ 4, Mar. 17, 2014, ECF No. 25-6.) No detail is provided to allow a conclusion
that Clarke Refuse's recyclables
conclusion,

are transported out of state.

one still could not say it is Defendants'

Even if one could reach that

"fixed and persisting intent" that the

destination for the trash and recyclables they collect shall be outside Maryland.
Clarke professes to be "personally interested" in where trash and recyclables ultimately
land, but Defendants make no arrangements for what they dump to be transported out of state.
Thus, the determinative

facts and circumstances

are no different from those found by the

2 The functions of the Interstate Commerce Commission were transferred to the Surface Transportation
Board, within the Department of Transportation. See 49 U.S.c. !l702.

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Supreme Court to be inadequate to establish the requisite, interstate intent of shippers in Atlantic
Coast Line Ry. Co. v. Standard Oil of Ky.:
There is nothing to indicate that the destination of the oil is arranged for or fixed
in the minds of the sellers beyond [the point to which the sellers have arranged
transportation] ....
Neither the sellers, who deliver the oil, nor the railroad
company, that aids the delivery of the oil to the storage tanks and tank cars at the
seaboard, has anything to do with determining what the ultimate destination of the
oil is, or has any interest in it, or any duty to discharge in respect to it ....
275 U.S. at 269.

Similarly here, Defendants have nothing "to do with determining what the

ultimate destination of the [trash and recyclables] is, or [have] any interest in it, or any duty to
discharge in respect to it."

Defendants'

transportation of property ends at the dump.

What

happens to the trash and recyclables after that is determined by someone else. That it may wind
up outside Maryland is of no moment to Defendants.

See also Burlington Northern, 719 F.2d at

307 -08 (defendant failed to produce evidence it had fixed and specific intent to ship logs out of
state); Alice v. GCS, Inc., Civ. No. 05-50132, 2006 WL 2644958, at *4 (N.D. Ill. Sept. 14,2006)
(waste collection company's

delivery of material to in-state recycling center marked end of

intrastate journey; defendant's "fixed and persistent intent was to unload its debris at Heartland
[recycling center]" and defendant did not maintain interest in materials once deposited there).
The cases cited by Defendants on this issue are factually distinguishable from the instant
case. In Craft v. Ray's. LLC, Civ. No. RLY-JMS-08-627, 2009 WL 3163148 (S.D. Ind. Sept. 29,
2009), amended on state law ground~, 2010 WL 148306 (Jan. 13,2010),

the defendant was a

recycling and waste disposal company that sold over half of its recyclables to out-of-state
recipients. Defendants here do not contract with any out-of-state entities for the purchase of their
recyclables.

Any recyclables they sell are sold to a Maryland entity, the Quad Avenue facility,

and Defendants take no part in the buyer's decision as to what happens to the recyclabJes after
that. In Brennan v. Schwel'man Trucking Co. o(Virginia,
13

Inc., 540 F.2d 1200 (4th Cir. 1976),

the lack of interstate transportation was not determinative in light of the facts that the defendant
held itself out to the public as available for interstate cartage and solicited interstate business. Id.
at 1203-04. Neither of those factors is present in this case.
Defendants

have also suggested that the Graham decision is similar factually, but

overlook that the waste collection company in that case had routes in both Kansas and Missouri
and its trucks regularly traveled the highways back and forth across the state line to meet its
contractual obligations.

865 F. Supp.2d at 953. In Walters v. American Coach Lines of Miami.

Inc., 575 F.3d 1221 (11th Cir. 2013), the Eleventh Circuit rightly concluded that the defendant,
which shuttled cruise ship passengers between airports, hotels, and ships, transported passengers
in "a practical continuity of movement" in interstate and international travel.

Id. at 1230.

In

contrast, Clarke Refuse's transportation of waste and recyclables ends where they are dumped in
Maryland.

It is immaterial to Clarke Refuse if the waste and recyclables stay in Maryland or

leave the State, and Defendants do not undertake their transportation with the intention to begin.
an interstate journey of the materials.

Another case relied upon by Defendants is Rodriguez v.

Pan & Plus Baking, LLC, Civ. No. 12-23193,2013

WL 1681839 (S.D. Fla. Apr. 17,2013), but

that case is also factually dissimilar from the one before the Court. The Rodriguez defendants
purchased baked goods from outside Florida and sold them to Florida retailers, with the goods
making a stop in between at the defendants' warehouse.

Finding that the defendants' fixed and

persistent intent was obvious, i. e., to ship goods in interstate commerce, the Court found the
MCA exemption applicable to the in-state driver plaintiffs' FLSA overtime claims.
Defendants here stand on much different ground.

Id. at *5.

As was true in the Alice case, Defendants'

fixed and persistent intent was to take the waste and recyclables no farther than where they were
to dump them-in

the State of Maryland.

14

Lastly, Defendants cite Talton v. IR. Caffey Distributing Co., Inc., 124 F. App'x 760
(4th Cir. 2005) (unpublished).

There, the defendap.t was a wholesaler and distributor of beer and

wine, a substantial portion of which was produced outside of North Carolina where the plaintiff
was a driver and sales representative responsible for, among other things, delivering product to
retail establishments
defendant's

in North Carolina.

The plaintiff claimed the product's

delivery to

warehouse from which the intrastate routes were run resulted in an interruption of

the product's interstate journey.

The Fourth Circuit concluded the defendant's ordering product

from outside North Carolina was in anticipation of its in-state customers'

needs and that was

sufficient to maintain the interstate character of the transportation.

Id. at 765. Defendants cited

one other case relating to the issue of interstate transportation,

but it did not deal with the

difference between interstate and intrastate transportation and, therefore, is not of any assistance
in resolving this case. See Richardson v. James Gibbons Co., 132 F.2d 627 (4th Cir. 1942), afi'd
sub nom. Southland Gasoline Co. v. Bayley, 319 U.S. 44 (1943). Defendants have failed to show
their transportation of property was in interstate commerce.

VI. Conclusion
The Court concludes that Defendants are not entitled to the MCA exemption to the
FLSA's overtime provisions or their Maryland statutory counterpart.

Accordingly, Defendants'

motion for partial summary judgment (ECF No. 25) is DENIED.

DATED this

Zr

day of June, 2014.

BY THE COURT:

James K. Bredar
United States District Judge

IS