Mendoza et al v. HoHoHo Express, Inc. et al

Filing 12

MEMORANDUM OPINION AND ORDER GRANTING 11 MOTION for Summary Judgment .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDGAR MENDOZA , et al.,
Plaintiffs,
v.
HOHOHO EXPRESS, INC., et al.,
Defendants.

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CIVIL ACTION H-13-0317

M EMORANDUM O PINION & O RDER
Pending before the court is a motion for summary judgment filed by defendants HOHOHO
Express, Inc. (“HoHoHo”) and Eric Ho (“Ho”) (collectively, the “defendants”). Dkt. 11. Plaintiffs
Edgar Mendoza, Angel Ramirez, Clayton Holmes, and Jorge Navarro (collectively, the “plaintiffs”)
have not responded to the motion, and it will therefore be treated as unopposed.1 After consideration
of the motion, the record, and the applicable law, defendants’ motion is GRANTED.
I. LAW & ANALYSIS
Defendants move for summary judgment on plaintiffs’ overtime pay claims arising under the
Fair Labor Standards Act of 1938, as amended (“FLSA”). Dkt. 3 (first amended complaint).
Specifically, defendants assert that they are entitled to summary judgment based on the affirmative
defense of the FLSA’s Motor Carrier Act exemption under 29 U.S.C. § 213(b)(1). Dkt. 11 at 1–2.
Summary judgment is proper 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); see
also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The movant bears the

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Under the Local Rules of the Southern District of Texas, “[f]ailure to respond will be taken as a representation
of no opposition.” S.D. T EX . L.R. 7.4.

initial burden of informing the court of evidence, if any, that demonstrates the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). Only
when the movant has discharged its initial burden does the burden shift to the nonmovant to
demonstrate that there is a genuine dispute of material fact. Id. at 322. A dispute is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmovant. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Cooper Tire & Rubber Co. v.
Farese, 423 F.3d 446, 454 (5th Cir. 2005). A dispute is “material” if its resolution could affect the
outcome of the action. Anderson, 477 U.S. at 248.
The court draws all inferences in favor of the nonmovant.

Id. at 255; Chaplin v.

NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002). When the movant bears the burden of proof
at trial as to an affirmative defense, “‘he must establish beyond peradventure all of the essential
elements of the . . . defense to warrant judgment in his favor.’” Chaplin, 307 F.3d at 372 (quoting
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1996)). When the nonmovant fails to set
forth specific facts, by affidavits or otherwise, to show that there is a genuine dispute for trial,
summary judgment is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.1992).
Factual controversies are to be resolved in favor of the nonmovant, “‘but only when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts.’” Wallace
v. Tex. Tech Univ., 80 F.3d 1042, 1048 (5th Cir.1996) (quoting Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994)); see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th
Cir.1996). The court will not, “in the absence of any proof, assume that the [nonmovant] could or
would prove the necessary facts.” McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d
89, 92 (5th Cir.1995).
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The plaintiffs allege that they are non-exempt truck drivers who were owed, but not paid,
overtime wages by their employer-defendants. Dkt. 1 at 2 ¶ 5. The defendants answered plaintiffs’
complaint and asserted multiple affirmative defenses, including the defense that the plaintiffs “are
exempt from the provisions of the FLSA pursuant to 29 U.S.C. § 213(b)(1) and the Motor Carrier[]
Act exemption.” Dkt. 7 (answer) at 3 ¶ 23. After the close of discovery, defendants filed a motion
for summary judgment, asserting that they meet the motor carrier defense as a matter of law. Dkt.
11. Plaintiffs did not file a response, and the motion is ripe for disposition.
The Motor Carrier Act exemption provides a covered employer relief from the overtime pay
requirement to any “employee [over] whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service . . . .” 29 U.S.C. § 213(b)(1); Songer v. Dillon Res.,
Inc., 618 F.3d 467, 471–72 (5th Cir. 2010). In order for the Secretary of Transportation to have this
power, the employee must have been: (1) employed by a carrier or carriers whose transportation of
passengers or property by motor vehicle is subject to the Secretary’s jurisdiction under Section 204
of the Motor Carrier Act; and (2) engaged 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. 29 C.F.R.
§ 782.2(a); Songer, 618 F.3d at 472.
The first element that must be established is whether plaintiffs “[a]re employed by carriers
whose transportation of property by motor vehicle is subject to” the Secretary’s jurisdiction. 29
C.F.R. § 782.2(a). Defendants can meet this definition if they show that (1) they are motor carriers
and (2) engaged in interstate commerce. Songer, 618 F.3d at 472. Motor carriers are defined as
persons “providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). And
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engaging in interstate commerce can be met by a showing of either the actual transport of goods
across state lines or the intrastate transport of goods in the flow of interstate commerce. Songer, 618
F.3d at 472; Merchants Fast Motor Lines, Inc. v. I.C.C., 528 F.2d 1042, 1044 (5th Cir. 1976).
Here, HoHoHo has established that it is a motor carrier subject to the Secretary’s jurisdiction.
HoHoHo provides transportation in refrigerated trailers of perishable goods in exchange for
compensation, thereby meeting the statutory definition of a motor carrier. 49 U.S.C. § 13102(14);
Dkt. 11, Ex. 2 (affidavit of Ling Yu) at 1 ¶¶ 5–6. HoHoHo also solicits and accepts business from
vendors in California, Arizona, Oregon, Washington, Florida, and Colorado, for delivery of grocery
items to stores in the Houston area. Dkt. 11, Ex. 2 at 1 ¶ 6. As HoHoHo is transporting goods across
state lines, it is engaged in interstate commerce as defined by the Secretary of Labor. Songer, 618
F.3d at 472; 29 C.F.R. § 782.2(a). HoHoHo has established the first element of the Motor Carrier
Act exemption as a matter of law.2
Second, the defendants must demonstrate that the employees were engaged in activities
directly affecting the safe operation of motor vehicles on public highways of passengers or property
in interstate commerce. 29 C.F.R. § 782.2(a). As truck drivers subject to Department of

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The court notes that the defendants’ proof also demonstrates that Eric Ho, individually, is subject to regulation
by the Secretary of Transportation. In Songer, the Fifth Circuit extended the exemption to a staff leasing company that
provided employees for a motor carrier and operated as a joint employer with the carrier. Songer, 618 F.3d at 472–73;
see also Moore v. Universal Coordinators, Inc., 423 F.2d 96, 99–100 (3d Cir. 1970) (holding that truck drivers were
employees of both non-carrier truck driver leasing company and private motor carrier and therefore the exemption
extended to leasing company). Similarly, in this case, plaintiffs have alleged that Ho is an FLSA “employer” and a
control person of HoHoHo who determined the compensation policies of the enterprise. Dkt. 1 at 1–2 ¶ 3. The pleadings
and evidence further show that as joint employers, Ho and HoHoHo are both subject to the Secretary of Transportation’s
jurisdiction as motor carriers. This finding is supported by the congressional purpose to regulate employees of carriers
in the interest of safety, and joint employers of a covered motor carrier should thus be subject to the Secretary’s power.
Songer, 618 F.3d at 472–73; Moore, 423 F.2d at 99–100; Tidd v. Adecco USA, Inc., No. 07-11214-GAO, 2010 W L
996769, at *2 (D. Mass. Mar. 16, 2010) (“[E]xtending the Motor Carrier Act exemption to joint employers prevents
circumvention of the Secretary’s regulatory authority.”).

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Transportation (“DOT”) requirements, it is undisputed that the plaintiffs’ work directly affected the
safe operation of motor vehicles on public highways. Songer, 618 F.3d at 473; Barefoot v. Mid-Am.
Dairymen, Inc., 826 F. Supp. 1046, 1050 (N.D. Tex. 1993) (“Truck drivers are engaged in activities
of a character affecting safety that subject them to the power of the Secretary of Transportation if the
drivers are required to . . . complet[e] various DOT forms, and pass[] a DOT physical and drug
test.”), aff’d, 1994 WL 57686 (5th Cir. Feb. 18, 1994) (per curiam); Dkt. 11, Ex. 2 at 1 ¶ 4 (“Truck
drivers for HoHoHo Express, Inc. are required to have a Class A commercial driver’s license, record
their hours of service and/or complete driver vehicle inspection reports, and comply with the
Department of Transportation and Federal Motor Carrier Regulation before assuming driving
duties.”).
The last question is whether the plaintiff-employees themselves engaged in interstate
commerce for the Secretary of Transportation to have jurisdiction over them. 29 C.F.R. § 782.2(a).
Defendants can demonstrate this element by showing that plaintiffs actually transported goods across
state lines or engaged in the intrastate transport of goods in the flow of commerce. Merchants Fast,
528 F.2d at 1044; see also Barefoot, 1994 WL 57686, at *3. The intrastate flow prong can be met
if the “shipments originate out of the state and are part of a continuous movement in interstate
commerce.” Shew v. Southland Corp. (Cabell’s Dairy Div.), 370 F.2d 376, 380 (5th Cir. 1966).
Here, the plaintiffs were drivers who picked up items from a Houston warehouse and delivered them
to local grocery stores based on the stores’ orders from out-of-state vendors. Dkt. 11, Ex. 2 at 1 ¶ 6;
Dkt. 11, Ex. 1 (Department of Labor investigative report) at 7. This proof demonstrates the
application of the second element of the Motor Carrier Act exemption, namely that the employees

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engaged in operational safety activities for motor vehicles transporting items in the flow of interstate
commerce. Songer, 618 F.3d at 473–75.
The defendants have met their burden under Rule 56 to obtain judgment on an affirmative
defense. The burden now shifts to the nonmovants, plaintiffs, who must go beyond the pleadings
and “come forward with specific facts indicating a genuine issue for trial.” Davis-Lynch, Inc. v.
Moreno, 667 F.3d 539, 550 (5th Cir. 2012). Plaintiffs have not responded to the defendants’ motion
for summary judgment, however, and thus they fail to meet their burden. Summary judgment on
plaintiffs’ FLSA claims will be granted in defendants’ favor.
II. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment (Dkt. 11) is
GRANTED. The court will enter a separate final judgment consistent with this order.
It is so ORDERED.
Signed at Houston, Texas on May 12, 2014.

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Gray H. Miller
United States District Judge

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