BARRIOS v. SUBURBAN DISPOSAL INC. et al
Filing
60
OPINION. Signed by Judge William J. Martini on 12/11/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-cv-03663 (WJM)
MARLON BARRIOS,
on behalf of himself and all other similarly
situated persons,
OPINION
Plaintiff,
v.
SUBURBAN DISPOSAL, INC.
CHRISTOPHER ROSELLE, and DANIEL J.
ROSELLE
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
This is a wage and hour case against a waste collection company, Suburban
Disposal, Inc., and Suburban’s executives, Christopher Roselle and Daniel J. Roselle
(together “Suburban”). Named Plaintiff Marlon Barrios’s Amended Complaint contains
two counts: Count I is a putative collective action claim under the Fair Labor Standards
Act (“FLSA”), and Count II is a putative class action claim under the New Jersey Wage
and Hour Law (“NJWHL”). Both counts allege a failure to pay overtime at time-and-ahalf for hours worked in excess of 40 hours per week. Suburban moves for summary
judgment on both counts, arguing that it is exempt from paying time-and-a-half overtime
under the FLSA and NJWHL. There was no oral argument. Fed. R. Civ. P. 78(b).
Based on a genuine dispute as to material facts, Suburban’s motion is DENIED.
I.
PROCEDURAL HISTORY
On June 14, 2012, Barrios filed a four-count putative class and collection action
Complaint, asserting both overtime and minimum wage claims under the FLSA, and
overtime and minimum wage claims under the NJWHL. Compl., ECF No. 1. The
NJWHL contains a two year statute of limitations. N.J.S.A. 34:11-56a25.1. The FLSA
contains a three year statute of limitations in the event of willful violations, which Barrios
alleges to have occurred in this case. 29 U.S.C. § 255(a). Accordingly, it appears that
Barrios sought to recover under the FLSA for overtime compensation dating back to June
14, 2009, and Barrios apparently sought to recover under the NJWHL for compensation
dating back to June 14, 2010.
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On August 31, 2012, Suburban moved to dismiss the Complaint. ECF No. 7. In
its motion, Suburban argued that Barrios’s FLSA overtime claim was subject to dismissal
under the FLSA’s Motor Carrier Act (“MCA”) Exemption. Suburban also argued that
Barrios’s NJWHL overtime claim should be dismissed under a similar exemption called
the Trucking Industry Employer Exemption. Because Suburban’s exemption arguments
relied on facts outside of the pleadings, the Court refused to resolve them on a motion to
dismiss. Barrios v. Suburban Disposal, Inc., No. 12-3663, 2013 WL 1504489, at *3
(D.N.J. Apr. 10, 2013). For independent reasons, the Court dismissed without prejudice
both the overtime and minimum claims under the FLSA, and the Court also dismissed
without prejudice the minimum wage claim under the NJWHL. Id. at **2-4. The Court
allowed the NJWHL overtime claim to proceed. Id. at **2-3.
On May 9, 2012, Barrios filed an Amended Complaint asserting overtime claims
under the FLSA and the NJWHL but omitting the minimum wage claims. Am. Compl.,
ECF No. 22. After Barrios filed the Amended Complaint, the following plaintiffs
submitted written consents to opt into Barrios’s putative FLSA collective action: Jose
Cabrera, George Calderon, Noel Carillo, Jose Cruz, Carlos Duche, Gilder de Leon, Javier
Marin, Manual Perez, and Jorge Salazar (the “Opt-In Plaintiffs”). ECF No. 24.
Subsequently, Plaintiffs requested that the case proceed to discovery on the issue
of class certification. ECF No. 26. Suburban argued that the parties should, instead,
conduct limited discovery on the applicability of the MCA Exemption and the Trucking
Industry Employer Exemption. Id. The Honorable Mark Falk granted Suburban’s
request. ECF No. 29.
On September 27, 2013, after the close of limited discovery, Suburban moved for
summary judgment, arguing that both the MCA Exemption and the Trucking Industry
Employer Exemption applied in this case. ECF No. 52.
II.
BACKGROUND
A.
Suburban’s Business
1.
Structure of the Company
Unless otherwise noted, there is no genuine dispute about the following facts:
Suburban performs solid waste collection services for more than 39 New Jersey
municipalities. Roselle Declaration ¶ 4, ECF No. 52-12. Suburban is licensed by the
United States Department of Transportation (“DOT”), and its DOT number is 853947.
Id. ¶¶ 4-5. Suburban employs both drivers and “driver’s helpers/loaders,” who ride along
with Suburban’s vehicles and help with loading and unloading. Id. ¶ 8. Driver’s helpers
decide whether waste can safely be transported to a disposal site. Id. ¶ 9.
Suburban’s driver’s helpers work different routes. Id. ¶ 11. Some driver’s helpers
work full-time; others work only a few days per week. Id. Full time driver’s helpers are
generally assigned a specific route that remains the same each day. Id. John Roselle,
Suburban’s President, claims that the additional driver’s helpers are randomly assigned,
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as needed, on a day to day basis. Id. ¶¶ 1, 11. He adds that these additional driver’s
helpers “could be assigned on any given day to any of Suburban’s commercial vehicles or
routes.” Id. ¶ 11. As discussed later, the randomness of the assignment process is an
issue that is highly disputed by Plaintiffs.
2.
Interstate Transportation
Defendants further claim that the “vast majority of the solid waste and recyclables
collected by Suburban are disposed of at out of State facilities.” Id. ¶ 10. Suburban
maintains that its crews are “often” required to transport waste across state lines. Id. ¶
13. Suburban maintains that since 2011, its drivers have transported waste from Mahwah
to facilities in New York. Id. ¶¶ 13-15. Plaintiffs deny this claim, arguing that Suburban
has failed to produce any waste manifests or receipts indicating interstate transportation.
Pls.’ Response to Def.’s Statement of Material Facts Not in Dispute ¶ 14. Suburban also
maintains that since 2010 Suburban drivers have transported waste from Dumont and
Franklin Lakes to facilities in New York. Id. ¶¶ 14-16. Plaintiffs deny this claim,
arguing that Suburban has failed to produce any waste manifests or receipts indicating
interstate transportation. Pls.’ Response to Def.’s Statement of Material Facts Not in
Dispute ¶¶ 15-16. Furthermore, Suburban maintains that from 2009 through 2013,
Suburban has serviced customers such as Balducci’s Food Lover’s Market and King’s
Supermarket in New York, Connecticut, and Maryland. Roselle Declaration ¶ 17; see
also id. at Ex. D. Plaintiffs note that invoices offered to support this claim fail to indicate
that Suburban trucks drove interstate routes while conducting business in New York,
Connecticut, and Maryland. Pls.’ Response to Def.’s Statement of Material Facts Not in
Dispute ¶ 21.
Defendants claim that besides from transporting waste between states, Suburban
also delivers waste to New Jersey transfer stations, which Roselle claims “generally”
send the waste to out of state disposal sites. Roselle Declaration ¶ 22. In discussing the
shipment of waste to out of state disposal sites, Suburban appeals to the waste
management plans for the following New Jersey counties in which Plaintiffs worked:
Bergen County, Essex County, Hudson County, Morris County, and Passaic County.
a.
Bergen County
Pursuant to a 2006 Amendment to the Bergen County Waste Management Plan,
Bergen County’s waste can be disposed of at any licensed facility, regardless of whether
the facility is in New Jersey or some other state. Trenk Declaration Ex. E at 4 of 16 to 6
of 16, ECF No. 52-6.
b.
Essex County
Under the 2006 Update to the Essex County Solid Waste Management Plan, Essex
County allows its municipalities to determine how they will dispose of their “processible
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solid waste.” Trenk Declaration Ex. C at SD04002, ECF No. 52-4. Municipalities can
contract with Essex County to dispose of their processible waste at an Essex County
facility, which apparently processes the waste into ash before sending it either intrastate
or out of state. Id. Or, municipalities can deliver their processible waste to two in-state
facilities for processing prior to out of state disposal. Id.
c.
Hudson County
In February 2009, Hudson County designated Advance Enterprises Recycling, Inc.
Transfer Facility (“AER”) as Hudson County’s transfer station for processible solid
waste. Trenk Declaration Ex. G at SD05937, ECF No. 52-8. AER loads the waste on
trailers and delivers it to an out-of-state landfill. Trenk Declaration Ex. H at SD06042,
ECF No. 52-9. Waste not delivered to AER is delivered to the Keegan Landfill in North
Arlington, New Jersey. Trenk Declaration Ex. G at SD05947, ECF No. 52-8.
d.
Morris County
Under the 2008 Morris County Solid Waste Management Plan, Morris County’s
waste is delivered to one of two in-state transfer stations run by Waste Management of
New Jersey (“WMNJ”). Trenk Declaration Ex. A at SD03601, ECF No. 52-2. Upon
receipt of the waste, WMNJ is given the right to extract materials, and it is entitled to
compensation based on what it extracts. Id. at SD03605. Subsequently, WMNJ
transports the waste to one of six stations in Pennsylvania, or to additional unidentified
facilities. Id. at SD03601.
e.
Passaic County
According to its 2006 Solid Waste Management Plan, Passaic County allows each
private contractor to choose where it will deliver the waste it collects. Trenk Declaration
Ex. F at 10, ECF No. 52-7. In 2005, solid waste from Passaic was brought to 16 disposal
facilities spread among New Jersey, New York, Pennsylvania, and Ohio. Id. In 2005,
the bulk of Passaic’s waste, 68%, was delivered to a facility in Pennsylvania. Id.
B.
Plaintiffs’ Responsibilities at Suburban
In opposition to the motion for summary judgment, Plaintiffs rely on the
declaration of Barrios, as well as the declarations of the following Opt-In Plaintiffs: Cruz,
Cabrera, Salazar, and Marin.
Barrios worked for Suburban as a driver’s helper from roughly November 2003
until November 2010. Barrios Declaration ¶ 2, ECF No. 54-2. According to his
Declaration, Barrios was a full-time worker who typically worked nine to eleven hours
per day, five to six days per week. Id. ¶¶ 3-4. Barrios maintains that he was randomly
assigned routes in his first six months at Suburban, but after that period he was assigned
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to a “fixed and steady route.” Id. ¶ 10. In his time at Suburban, Barrios never worked on
an interstate route—his routes were exclusively within the State of New Jersey. Id. ¶ 11.
Suburban’s records indicate that from June 2009 through July 2010, Barrios was, with
three exceptions, only assigned two routes, Hopatcong and Madison. Ambinder
Declaration Ex. J at 12-17, ECF No. 54-10. Suburban’s records indicate that from July
2010 until January 2011, Barrios worked these same routes, with just seven exceptions.
Id. at 17-19.
Opt-In Plaintiff Marin worked for Suburban as a loader and waste collector from
roughly December 2003 until May 2011. Marin Declaration ¶ 2, ECF No. 54-4.
According to his Declaration, Marin was a full-time worker who typically worked ten
hours per day, five days per week. Id. ¶¶ 3-4. Marin claims that he was randomly
assigned routes in his first two or three months at Suburban, but after that period he was
assigned to a “fixed and steady route.” Id. ¶ 12. Suburban’s records indicate that from
June 3, 2009 until May 7, 2010, Marin worked exclusively on the Chatham and
Woodridge routes. Ambinder Declaration Ex. J at 1-5. Suburban’s records indicate that
from May 8, 2010 until April 25, 2011, Marin continued to work mostly on those two
routes, though on roughly 30 days he worked different routes in various towns including
Hohokus, West Orange, and Dumont. Id. at 4-11. While Marin originally submitted a
declaration stating that he never traveled on an interstate route while working for
Suburban, Marin subsequently corrected himself and acknowledged that he twice
traveled outside of New Jersey while working on the Mahwah route. Marin Declaration ¶
8.
Opt-In Plaintiff Salazar worked for Suburban as a loader and waste collector from
roughly December 2004 until May 2011. Salazar Declaration ¶ 2, ECF No. 54-5.
According to his Declaration, Salazar was a full-time employee who typically worked
nine hours per day, six days per week. Id. ¶¶ 3-4. Salazar claims that he was randomly
assigned routes in his first seven months at Suburban, but after that period he was
assigned to a “fixed and steady route.” Id. ¶ 10. Salazar never traveled on an interstate
route while working for Suburban. Id. ¶ 8. Suburban’s records indicate that with nine
exceptions, Salazar worked exclusively on West Orange and Bayonne routes from May
28, 2009 until January 26, 2010. Ambinder Declaration Ex. J at 30-33. Suburban’s
records indicate that from February 3, 2010 until September 21, 2010, Salazar worked
almost exclusively on the Lincoln Park route. Id. 33-36. Suburban’s records indicate
that from September 22, 2010 until February 28, 2011, Salazar worked on a variety of
routes. Id. at 36-39. Suburban’s records indicate that from March 1, 2011 until April 26,
2011, Salazar worked almost exclusively on the Montville route. Id. at 39.
Opt-In Plaintiff Cabrera worked for Suburban as a loader and waste collector from
roughly November 2003 until November 2011. Cabrera Declaration ¶ 2, ECF No. 42-2.
According to his Declaration, Cabrera typically worked nine to ten hours per day, five to
six days per week. Id. ¶ 6. Cabrera never traveled on an interstate route while working
for Suburban. Id. ¶ 5. Suburban’s records indicate that, between May 28, 2009 through
April 7, 2010 Cabrera exclusively drove the same four routes on the same schedule.
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Ambinder Declaration Ex. J at 20-24, ECF No. 54-10. From April 2010 until April 2011,
Cabrera drove these same routes with just nine exceptions. Id. at 24-29.
Opt-In Plaintiff Cruz worked for Suburban as a loader and waste collector from
roughly August 2005 until January 2011. Cruz Declaration ¶ 2, ECF No. 54-3.
According to his Declaration, Cruz was a full-time employee who typically worked ten to
eleven hours per day, five to six days per week. Id. ¶¶ 3-4. Cruz claims that he was
randomly assigned routes in his first three months at Suburban, but after that period he
was assigned to a “fixed and steady route.” Id. ¶ 10. Suburban’s records indicate that
from May 28, 2009 until April 27, 2011, Cruz drove mostly routes in Bayonne, Kinnelon,
Little Ferry, and West Paterson. Ambinder Declaration Ex. J at 40-50, ECF No. 54-10.
During this same period, Cruz also drove routes in towns including Ramsey, River Edge,
Chatham, Belleville, and Hopatcong.
Contrary to Plaintiffs’ declarations, Suburban maintains that Plaintiffs were not
full time employees, and that Plaintiffs “rarely” worked in excess of 40 hours per week.
Response to Plaintiffs’ Statement of Material Facts Not in Dispute ¶¶ 1-2, ECF No. 57-2.
Suburban concedes, however, that besides from Marin, none of the Plaintiffs worked
interstate routes during the relevant time period at issue in this case. Id. ¶ 17.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is
material if it will affect the outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all
evidence and inferences drawn therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.2d 641, 647 (3d Cir. 2007).
III.
DISCUSSION
Count I is a claim for overtime under the FLSA. Count II is a claim for overtime
under the NWJHL. Suburban moves for summary judgment on Count I, arguing that
Plaintiffs are not entitled to time-and-a-half under the FLSA because Plaintiffs fall under
the FLSA’s MCA Exemption. Suburban also moves for summary judgment on Count II,
arguing that Plaintiffs are not entitled to time-and-a-half under the NJWHL because
Plaintiffs fall under the NJWHL’s Trucking Industry Employer Exemption. As the
parties appear to agree that the MCA Exemption and the Trucking Industry Employer
Exemption are essentially the same, the Court’s analysis focuses only on the MCA
Exemption.
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A.
The MCA Exemption
The FLSA generally provides for overtime at time-and-a-half for hours worked in
excess of 40 hours per week. 29 U.S.C. § 207. “It is well settled that exemptions from
the FLSA are construed narrowly, against the employer.” Packard v. Pittsburgh Transp.
Co., 418 F.3d 246, 250 (3d Cir. 2005). One FLSA exemption is the MCA Exemption, 29
U.S.C. § 213(b)(1).
An employee falls within the MCA Exemption when three factors are satisfied. 29
C.F.R. 782.2. First, an employee must be employed by a carrier subject to the
jurisdiction of the Secretary of Transportation. 29 C.F.R. 782.2(a). Second, an 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 within the meaning of the Motor Carrier Act.” Id. Third,
the employee must work as driver’s helper, loader, or mechanic. 29 C.F.R. 782.2(b)(1).
Suburban “bears the burden of proving ‘plainly and unmistakably’ that [Plaintiffs]
qualify for the MCA exemption.” Packard, 418 F.3d at 250 (quoting Friedrich v. U.S.
Computer Servs., 974 F.2d 409, 412 (3d Cir. 1992)).
Here, there is no dispute that Suburban, a company licensed by the DOT, is
subject to the jurisdiction of the DOT. Nor is there any dispute that Plaintiffs are driver’s
helpers who engage in activities that affect the safety of a motor vehicle. As such, the
parties’ disagreement is limited to two issues: (a) whether waste constitutes property for
purposes of the MCA Exemption, and (b) whether Plaintiffs worked in “interstate
commerce.” If Suburban is to prevail on its motion, it must demonstrate both that waste
is property under the MCA Exemption and that Plaintiffs worked in interstate commerce.
Because there is a genuine dispute as to material facts regarding Plaintiffs’ work in
interstate commerce, Suburban has failed to demonstrate, for purposes of a Rule 56
motion, that the MCA Exemption applies in this case. Accordingly, the Court does not
have to address whether waste constitutes property for purposes of the MCA Exemption.
B.
Disputed Fact Issues Prevent the Court From Granting Summary
Judgment
The MCA Exemption’s interstate commerce requirement can be satisfied in one of
two ways: (1) employees can transport property from state to state, or (2) employees can
transport property within a single state, but only so long as the intrastate transportation is
part of a “practical continuity of movement” in interstate commerce.
1.
Transportation of Property From State to State
As noted earlier, the MCA Exemption applies only in the event of interstate
commerce. Suburban maintains that Plaintiffs, as individuals, are considered to have
engaged in interstate commerce for MCA Exemption purposes because Suburban’s
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business as a whole involves interstate commerce. Suburban is incorrect. The DOT has
explained in an opinion letter: “[i]f jurisdiction [under the MCA] is claimed over a driver
who has not driven in interstate commerce, evidence must be presented that the carrier
has engaged in interstate commerce and that the driver could reasonably have been
expected to make one of the carrier’s interstate runs.” 46 Fed. Reg. 37,902. “Satisfactory
evidence” of such a reasonable expectation “would be statements from drivers and
carriers, and any employment agreements.” Id. While the DOT’s opinion letter is not
binding, see Songer v. Dillon Resources, Inc., 618 F.3d 467, 474 n.10 (5th Cir. 2010),
this Court—like the Fifth, Seventh, and Ninth Circuits—nevertheless finds it persuasive.
See id.at 474-75; Johnson v. Hix Wrecker Service, Inc., 651 F.3d 658, 661 (7th Cir.
2011); Reich v. American Driver Service, Inc., 33 F.3d 1153, 1156 (9th Cir. 1994).
Accordingly, if Plaintiffs did not drive interstate routes, they are all considered to
have engaged in interstate commerce for MCA Exemption purposes if Plaintiffs could
have reasonably been expected to drive interstate routes. In Morris v. McComb, the
Supreme Court found that an employee who never drove interstate routes was
nevertheless subject to the MCA Exemption because (a) other employees drove interstate
routes, and (b) because routes assignments were divided “indiscriminately” among
employees. 332 U.S. 422, 423 (1947); see also Resch v. Krapf's Coaches, Inc., No. 116893, 2013 WL 4603011, at *6 (E.D. Pa. Aug, 29, 2013) (“In Morris, the Supreme Court
focused on the indiscriminate nature of the route—the fact that anyone could get assigned
an interstate route—to determine that the employees were all exempt [under the
MCA].”). On the other hand, in McGee v. Corporate Express Delivery Systems, a court
held that the MCA Exemption did not apply where employees were assigned routes on a
“permanent or quasi-permanent basis, and [where] routes were randomly reassigned only
when a driver did not come in to work and his route had to be covered by someone else.”
No. 1-1245, 2003 WL 22757757, at *7 (N.D. Ill. Nov. 20, 2003).
Suburban takes the position that this case is like Morris. It argues that its
company drove three interstate routes—Mahwah, Dumont, and Franklin Lakes—and that
Plaintiffs could have been assigned to those routes at any time because Suburban’s
assignment system was random. However, Suburban fails to explain what it means by
“random.” Does it mean that on any day of any week, any of its driver’s helpers could
have driven any of Suburban’s routes? If so, the evidence seems to cut against
Suburban’s argument. Barrios, for example, drove the same two routes, with only a few
exceptions, for three years. For roughly a year, Marin worked just two routes. Other
drivers worked on just a few routes for extended periods of time. This suggests—but
does not establish—that Plaintiffs’ routes were set on a “quasi-permanent” basis. See id.
Also supporting a finding that Plaintiffs had quasi-permanent routes is Roselle’s
declaration, which acknowledges that “full time driver’s helpers are generally assigned a
specific route that remains the same each day.” Roselle Declaration ¶ 9. Though
Suburban disputes it, Barrios, Cabrera, Cruz, Marin, and Salazar claim to have been full
time employees who regularly worked more than 40 hours per week.
Furthermore, in considering whether Plaintiffs’ reasonably could have expected to
drive interstate routes, the Court notes that Barrios, Cruz, Cabrera, Marin, and Salazar
8
each worked for Suburban for seven years or more, and that during their time at Suburban
only one of them, Marin, ever drove an interstate route. 1 There is no evidence that any
Plaintiffs ever serviced one of Suburban’s customers in New York, Connecticut, or
Maryland. Though Marin went on interstate trips for Suburban twice during his eightyear employment, the Court cannot find, based on these two trips, that all Plaintiffs had a
reasonable expectation of driving interstate routes.
Ultimately, while there is no question that Barrios and the four Opt-In Plaintiffs
who submitted declarations in this case were, at times, assigned routes they did not
normally travel, the Court cannot find as a matter of law that Plaintiffs’ route assignments
were random. Construing the evidence in the light most favorable to Plaintiffs, the Court
cannot find, for purposes of this Rule 56 motion, that Plaintiffs could “reasonably have
been expected to make one of the carrier’s interstate runs.”
2.
Practical Continuity of Movement
Next, Suburban argues that the MCA Exemption’s interstate commerce
requirement is satisfied under the “practical continuity of movement” theory. Here,
Suburban points to waste collections Plaintiffs made in Bergen, Essex, Hudson, Morris,
and Passaic Counties. Based on a genuine dispute as to material fact, the Court cannot
find that Suburban’s argument succeeds in the context of the instant summary judgment
motion.
In Friedrich v. U.S. Computer Servs, the Third Circuit recognized that the MCA
Exemption’s interstate commerce requirement can be satisfied under the “continuity of
movement [in interstate commerce] principle.” 974 F.2d at 413 n.6. To determine
whether items that move in intrastate commerce are in the continuity of movement in
interstate commerce, courts consider a shipper’s “fixed and persisting intent at the time of
the shipment.” Atlantic Indep. Union v. Sunoco, No. 3-4389, 2004 WL 1368808, at *4
(E.D. Pa. June 16, 2004) (citing Project Hope v. M/V Ibn Sina, 250 F.3d 67 (2d Cir.
2001)).
“Whether the shipper has a ‘fixed and persisting intent’ that the merchandise
continue in interstate or foreign commerce from or to an out-of-State origin or
destination, via a warehouse or distribution center, is ascertained from all the facts and
circumstances surrounding the transportation.” Id. (quoting ICC Policy Statement, Motor
Carrier Interstate Transportation-From Out-of-State Through Warehouses to Points in
Same State (“ICC Policy Statement”), 57 Fed.Reg. 19812 (May 8, 1992)). Factors that
indicate “interstate intent” are
(1) no processing or substantial modification of substance occurs at the
warehouse or distribution facility;
1
Suburban’s summary judgment arguments are directed at Plaintiffs as a group. Suburban
does not argue that Marin, as an individual, falls under the MCA Exemption based on his
interstate activity on the Mahwah route.
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(2) [w]hile in the warehouse, the merchandise is subject to the shipper’s
control and direction as to the subsequent transportation;
(3) [m]odern systems allow tracking and documentation of most, if not all,
of the shipments coming in and going out of the warehouse or distribution
center;
(4) [t]he shipper or consignee must bear the ultimate payment for
transportation charges even if the warehouse or distribution center directly
pays the transportation charges to the carrier;
(5) [t]he warehouse utilized is owned by the shipper; and
(6) [t]he shipments move through the warehouse pursuant to a storage in
transit tariff provision.
ICC Policy Statement. Suburban has not provided any information suggesting the
second, third, fourth, fifth, and sixth factors weigh in its favor. The closest it comes is to
deny Plaintiffs’ charge that after waste is delivered to regional transfer stations,
“Defendants no longer retain any control or interest (monetary or otherwise) in the waste
and/or recyclables,” Pls.’ Statement of Material Facts Not in Dispute ¶ 21. Def.’s
Response to Plaintiffs’ Statement of Material Facts Not in Dispute ¶ 21. However,
Suburban points to no evidence in the record supporting its denial. The second through
sixth factors cut against finding that the waste transported by Suburban was in the
practical continuity of movement in interstate commerce.
As for the first factor, the evidence cited by Suburban cuts against finding a
practical continuity of movement in interstate commerce for purposes of the instant Rule
56 motion. Based on the evidence before the Court, Morris County extracted materials
from waste before shipping it out of state. The Court does not know if other processing
went on. And at least some of Essex County’s waste was burned before being shipped
either out of state or to a New Jersey location.
Furthermore, a review of “all the facts and circumstances” cuts against a finding of
interstate commerce for purposes of the instant motion. Suburban offers no evidence that
any of Bergen County’s waste has ever been transferred out of state. In the case of
Passaic County, Suburban notes that solid waste was delivered to 16 facilities in several
states in 2005, but none of the Plaintiffs’ claims extend back to 2005. Suburban offers no
evidence that any of Passaic County’s waste was shipped out of state during the time
period relevant to this case. And as for Hudson County, Suburban provides no evidence
that the waste it picked up was among the waste Hudson County shipped out of state, as
opposed to the waste Hudson County delivered to the Keegan Landfill in North
Arlington, New Jersey. As for Essex County, Suburban explains that some of Essex’s
waste is burned before being delivered to an in-state or an out-of state facility, but
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Suburban does not say whether the waste it collected from Essex was actually burned,
and it does not say whether, if the waste it delivered was burned, the ash was delivered
out of state.
Finally, Suburban argues that its transportation of waste is “interstate in nature
from the outset as determined by the State’s highly regulated solid waste management
program.” Reply Br. at 15 n.12, ECF No. 57. Regardless of whether waste management
in New Jersey is highly regulated, the county plans Suburban cites simply do not
demonstrate a practical continuity of movement in interstate commerce. Accordingly,
Suburban has not shouldered its burden on a Rule 56 motion to demonstrate interstate
commerce based on a practical continuity of movement theory.
IV.
CONCLUSION
As set forth above, genuine issues as to material fact prevent this Court from
finding, as a matter of law, that the MCA Exemption and the Trucking Industry Employer
Exemptions apply in this case. Accordingly, Suburban’s motion for summary judgment
is DENIED. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: December 11, 2013
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