REPORT AND RECOMMENDATION

THOMAS B. SMITH, Magistrate Judge.

Pending before the Court in this Fair Labor Standards Act, as amended, 29 U.S.C. § 216(b) ("FLSA") case is Defendants' Motion for Summary Final Judgment (Doc. 76). The motion is accompanied by a workers' compensation settlement case file (Doc. 76-1); the Declaration of Defendant Carl Chase, Jr., with attached exhibits (Doc. 76-2); the Deposition of Plaintiff Keith E. Taylor (Doc. 76-3); the Deposition of Plaintiff Terrence McGlothin (Doc. 76-4); the Deposition of Opt-in Plaintiff Stanley Burton (Doc. 76-5); the Deposition of Opt-in Plaintiff Stephen Guy Black, Sr. (Doc. 76-6); the Unsworn Statement of Opt-in Plaintiff Damien Ridenour (Doc. 76-7); and the Deposition of Opt-in Plaintiff James Robert Simpson (Doc. 76-8). Plaintiffs response to the motion was filed late (Doc. 79) and Defendants have filed a reply (Doc. 80). After due consideration it is respectfully recommended that the motion for summary judgment be denied.

Background

Named Plaintiffs Keith E. Taylor and Terrence McGlothlin filed this lawsuit on behalf of themselves and all others similarly situated (Doc. 1). They allege that they were employed by Defendants within the last three years as tow truck workers, and that Defendants failed to pay them overtime compensation for hours worked in excess of forty per week (Doc. 1, ¶¶ 10, 14). Defendants' violations of the FLSA are alleged to be knowing, willful and in reckless disregard of the rights of Plaintiffs and all others similarly situated. (Id., ¶ 21). Defendants deny these claims and assert several affirmative defenses (Doc. 7).

Plaintiffs moved for conditional certification of the collective action and to authorize notice to potential claimants (Doc. 43). The District Court granted the motion in part, and conditionally certified the case as a collective action for: "All tow truck drivers currently or formerly employed by C & L Towing and Transport, LLC within the three-year period immediately preceding the filing of this case to the present" (Doc. 49).

James Simpson (Doc. 17), Michael Jenkins (Doc. 43 at 16), Stan Burton (Doc. 43 at 17), Steven Guy Black, Jr. (Doc. 43 at 18), and Damien Ridenour (Doc. 44) have all filed consents to joint this lawsuit.

The parties have taken discovery and Defendants filed the instant motion for summary judgment on March 1, 2019 (Doc. 76). The Clerk entered a Summary Judgment Notice informing Plaintiffs that they had thirty days after service of the motion to file their responses (Doc. 78). Thus, the deadline was April 1, 2019. Plaintiffs filed their response on April 51 (Doc. 79). In view of the filing of an amended certificate of service indicating service of the motion on one of the Opt-in Plaintiffs on March 4, 2019 (Doc. 77), and absent a motion to strike for good cause, I have accepted and considered Plaintiff's response to the motion.2

Discussion

Legal Standard

"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). An issue of fact is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if the fact could affect the outcome of the lawsuit under the governing law. Id. In determining whether a genuine dispute of material fact exists, the Court must read the record and the evidence presented in the light most favorable to the non-moving party. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden then the burden shifts to the defending party to "go beyond the pleadings," meaning the defending party must either present specific evidence showing that there is a genuine issue of material fact; or show by other means that the moving party is not entitled to judgment as a matter of law. Id. at 324-26. In reviewing the record evidence, "the Court may not undertake the jury's function of weighing the evidence properly offered by the parties." Gordilis v. Ocean Drive Limousines, Inc., No. 12-cv-24358-JLK, 2014 WL 2214274, *1 (S.D. Fla. May 28, 2014), citing Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) ("Neither we nor the district court are to undertake credibility determinations or weigh the evidence."). The Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. O'Dell v. United States, 8:17-CV-733-T-27JSS, 2019 WL 400155, at *2 (M.D. Fla. Jan. 31, 2019).

Undisputed Facts

For present purposes, certain background facts are established.3 Defendant Carl Chase is the Chief Executive Officer of C & L Towing and Transport LLC ("C & L") (Doc. 76-2 at ¶ 2). C & L provides motor vehicle transportation and heavy equipment hauling for compensation. (Id., ¶ 13). Plaintiffs working for C & L as tow truck drivers drove trucks weighing 10,001 pounds or more, towing vehicles and equipment (Id., ¶ 12). And, the drivers were paid on commission and in cash (Doc. 79-1 at pp. 58, 108). Most of the remaining material facts are in dispute.

Analysis

Defendants present five arguments in support of their motion: (1) that Plaintiffs are not similarly situated; (2) the Motor Carrier Act ("MCA") exemption to the FLSA applies to bar relief to Plaintiffs; (3) Plaintiffs were independent contractors and not employees; (4) Plaintiffs cannot establish damages; and (5) Plaintiffs' damages are limited by the statute of limitations.

Similarly Situated Plaintiffs

Defendants' argue that Plaintiffs are not similarly situated and do not fall within the certified class as "Mr. Ridenour testified very clearly that he was `not a tow truck driver'" (citing "Depo, 18:8-12") and "Mr. Burton worked for Defendant as a diesel mechanic." Contrary to Defendants' assertion, Mr. Ridenour did not "testify" in a deposition. Defendants tendered his Unsworn Statement in which he gave his title as "Diesel mechanic and road service," explaining that he worked 60 to 80 hours a week for C & L (Doc. 76-7). The cited lines in his statement read:

(Doc. 76-7 at p. 18, lines 8-12).

Similarly, in his deposition, Mr. Burton testified:

(Doc. 76-5 at pp. 7:7-13; 9:1-14).

Although Plaintiffs asked for and received permission to send notice to a class of tow truck drivers (Doc. 43, ¶ 3; Docs. 48, 49), their complaint alleges "Plaintiffs were employed by Defendants within the last three years as tow truck workers." (Doc. 1, ¶ 10-emphasis supplied). To the extent Defendants contend that Mr. Burton and Mr. Ridenour are not similarly situated to the others in the class, this is an issue more properly raised in a motion to decertify. Defendants cite no authority to support granting them summary judgment on the merits of the claims of these two Opt-ins based solely on any dissimilarity between them and the other Plaintiffs, and I find no reason to recommend it.

The Motor Carrier Exemption

Defendants contend that they do not have to comply with the FLSA because Plaintiffs are all covered by the MCA exemption. In deciding whether the MCA exemption applies, the Court must consider the nature of the employer's business as well as the specific business-related activities of the employee. The Eleventh Circuit has explained:

Walters v. Am. Coach Lines Of Miami, Inc., 575 F.3d 1221, 1226-27 (11th Cir. 2009) (emphasis added). See also Ehrlich v. Rich Products Corp., 18-12195, 2019 WL 1502279, at *2 (11th Cir. Apr. 4, 2019).

Defendants bear the burden of establishing the applicability of the exemption during the time period at issue — that is, during the employment of each Plaintiff. This presents the first challenge for Defendants. Neither side has provided evidence (testimony, time records, or other documents) to establish the exact dates of each Plaintiff's employment. Defendants paid Plaintiffs in cash and Mr. Chase testified that he "had every single file that was ever done in my business" until he moved into a new shop in December 2016, at which time "all of that got thrown out, destroyed" (Doc. 79-1 at pp. 31:19-24). Plaintiffs for their part, are far from reliable historians when it comes to dates.4 So, the exact dates of Plaintiffs' employment are, at best, disputed. For present purposes the relevant time period is three years prior to the date of filing of the lawsuit, i.e., November 8, 2014 to November 8, 2017.

Cabined to just this time period, Defendants' business may have (it has not been established), qualified as a motor carrier business. A "motor carrier" under the MCA is a "person providing commercial motor vehicle transportation for compensation." 49 U.S.C. § 13102(14). A commercial motor vehicle has a gross vehicle weight of at least 10,001 pounds. 49 U.S.C. § 31132(1). See, generally, Garcia v. JIA Logistics, Inc., 16-22870-CIV, 2017 WL 2346149, at *3 (S.D. Fla. May 30, 2017). To satisfy the exemption, C & L must show that it was subject to the Secretary of Transportation's jurisdiction and must show that Plaintiffs "(a) engaged in activities affecting the safety of operation of motor vehicles (b) while transporting passengers or property in interstate commerce. See 29 C.F.R. § 782.2." Id. The present record is insufficient to establish these requirements.

Defendants argue that C & L meets the first prong because it is subject to inspections and audits by the Federal Motor Carrier Safety Administration ("FMCSA"), its drivers comply with DOT's pre and post-trip inspection requirements, its trucks are registered with DOT, and its trucks are engaged in interstate commerce. To support these contentions, Defendants present Mr. Chase's Declaration, with attached exhibits (Doc. 76-2). According to Mr. Chase:

Notably, Mr. Chase does not say anything about the volume of interstate and transport hauling business C & L engaged in. The documents attached to his Declaration purport to show: C&L's United States DOT motor carrier number is 1458839 (Id., ¶ 3); C&L's first insurance policy filed with the FMCSA became effective on June 6, 2006 (Id., ¶ 5); and C&L's FMSCA Company Snapshot states that it is engaged in interstate carrier operations (Id., ¶ 6).

If a company is licensed by the DOT and has the FMCSA authorizations necessary to be an interstate motor carrier, that suggests, but does not prove, that the DOT has exercised jurisdiction over the company. See Walters, 575 F.3d at 1227. Another difficulty with Defendants' evidence is that they have failed to show that it relates to the time period at issue. Conclusory averments that C & L is subject to inspection and audits does not show that it was subject to them during the relevant three year period. And, statements on C & L's website in 2019 say nothing about the state of the company in 2014-2017.

The FMCSA Company Snapshot (Doc. 76-2) is dated February 26, 2019. It does not provide any information as to the status of C & L's operations prior to that date. While Defendants' Exhibit 2 demonstrates that C & L filed an insurance policy with the FMSCA, that document also shows that C & L's Motor Property Common Carrier license was granted in June 2006, but revoked June 17, 2013, and not reinstated until September 15, 2015 (Doc. 76-2 at 12). So, it appears that C & L was not registered as a common carrier with the DOT during at least part of the relevant time period. This is consistent with Mr. Chase's deposition testimony that Defendants "actually bounced back and forth with D.O.T. numbers." (Doc. 79-1, pp. 70:18-72:3). When asked what he meant by "bounced back and forth," Chase said: "I think like one year we had with `interstate,' and then one year we had `intra'," but he could not remember which years were which (Id.).

The remaining exhibits to Mr. Chase's Declaration show that C & L sought permits from the states of Georgia, South Carolina and Alabama, but none of the travel appears to have taken place during the period when C & L's federal registration was active prior to the suit being filed. See Doc. 76-2 at 16-17 and at 25, 26 (travel June 2015, prior to reinstatement); Doc. 76-2 at 18-21 (travel November 2014, prior to reinstatement); Doc. 76-2 at 22 (travel November 10, 2017, after reinstatement and after suit was filed); and Doc. 76-2 at 23-24 (December 2014, prior to reinstatement). In addition, Plaintiff Keith Taylor testified that Defendants only had a single state registration when they employed Plaintiffs (Doc. 76-3 at pp. 36:8-38:9; 63:9-64:12). On this record, I cannot find as a matter of law that C & L had the appropriate federal licensing to show that the DOT exercised jurisdiction over it throughout the relevant time period or that C & L.

There are also disputed issues of fact as to whether C & L or its employees engaged in interstate activities during the relevant time period or, if they did, the extent of those activities.5 Although Mr. Chase has declared that during the relevant time period, C & L solicited and received interstate business, the specifics are scant. Defendants have only identified two out of state trips taken by Plaintiffs (Doc. 76 at 3, ¶¶ 10,11). This leaves a genuine issue as to whether Defendants' interstate travel was de minimus. See Walters, 575 F.3d at 1285 ("[T]he [d]efendant's involvement in interstate commerce must be real and actual, not merely hypothetical or conjectural. If the employer or employee's involvement in [sic] interstate commerce could be characterized as de minimus, they may not be subject to the Secretary of Transportation's jurisdiction at all, and thus are not covered by the Motor Carrier Act") (quoting Lieberman v. Corporate Connection Lines, Inc., No. 03-CIV-22814, 2005 WL 5501491, at *1-2 (S.D. Fla. Apr. 21, 2005)).6 The existence of these issues of material fact preclude summary judgment as to the MCA exemption.

Independent Contractor Defense

Defendants argue that their affirmative defense that certain employees were independent contractors will require a fact intensive inquiry that is not appropriate for class wide determination. Therefore, they contend that this action should not proceed collectively, and the Opt-in Plaintiff's claims should be dismissed without prejudice. Once again, Defendants confuse a motion for decertification with a summary judgment motion. Absent any arguments on the merits of the defense, there is no basis to grant summary judgment. To the extent Defendants seek decertification they should file a properly supported motion for that relief. The paltry analysis here is insufficient to warrant serious consideration.

Damages

Defendants' final contention is that Plaintiffs cannot establish damages and are not entitled to any damages outside of the applicable statute of limitations period.

The FLSA requires covered employers to maintain certain employee records, including records of their employees' wages paid and hours worked. 29 U.S.C. § 211(c); see also 29 C.F.R. § 516.2 (listing records and information employers must keep). According to the Eleventh Circuit:

Medrano v. The Inv. Emporium LLC, 672 F. App'x 944, 947-48 (11th Cir. 2016).

Defendants argue that Plaintiffs offer only vague and contradictory assertions and "have not stated with any clarity or precision the number of hours they allegedly worked, the amount or nature of that work, where or when the work was completed, or anything else that would assist a factfinder in approximating the alleged unpaid overtime at issue." (Doc. 76 at 12). Plaintiffs counter that any lack of precision is due to Defendants' failure to maintain the required time records. They note that Mr. Chase has admitted that they worked overtime,7 and there is evidence that Defendants did not pay Plaintiffs time and one-half the regular rate for overtime worked, supposedly because they were paid on commission. (See Doc. 79-1 at pp. 30:11-21; Doc. 76-7 at pp. 57:1-3; Doc. 76-5 at pp. 32:5-7).

This record is insufficient to warrant a summary finding. It is true that Plaintiffs are far from precise in reciting the details of each hour they worked. Nonetheless, each Plaintiff except Michael Jenkins8 has presented some sworn evidence of his claim and, considering the relaxed burden due to Defendants' failure to keep time records, Defendants' decision to pay Plaintiffs in cash, and viewing the record in the light most favorable to Plaintiffs, there is enough here to survive a summary judgment motion.

Defendants correctly note that Mr. Ridenour stated he does not know how many hours he is owed. However, his comments in an unsworn statement are not evidence. Rather, the Court looks to the sworn evidence from Mr. Ridenour, i.e., his interrogatory answers (Doc. 66). There, Mr. Ridenour said he worked Monday through Saturday from 8:00 a.m. to 5:00 p.m., took the service truck home and was on-call 24 hours a day to assist in repairs to vehicles. He testified to working 20 overtime hours for each of 52 weeks while being paid $700 per week (Doc. 66 at 7-8). This sworn testimony, if credited, would allow a jury to approximate damages. Similarly, in his deposition, Mr. Black estimated that due to the 24 hour on call work, he worked over 40 overtime hours a week (Doc. 76-6 at pp. 19:2). This is consistent with his sworn interrogatory answers which calculate his claim more precisely (Doc. 68 at pp. 7-8). Mr. Burton has also given interrogatory answers which detail his claim (Doc. 67) and he testified in deposition that he averaged 65 hours a week at a rate of pay of $500 per week (Doc. 76-5 at pp. 10:15-18, 17:20-21). With respect to Mr. Taylor, Defendants argue that "there is nothing beyond his testimony to support his claim" and his testimony is "not reliable" (Doc. 76 at 15). This argument is misplaced because questions of credibility are not for the Court on summary judgment. In sum, except for Mr. Jenkins, the record includes enough evidence to warrant denial of the motion.9

Mr. Jenkins has not responded to the motion, has not provided discovery, and it appears that he has abandoned his claim (Docs. 61, 62, 72, 74, 75). It is therefore respectfully recommended that his claim be dismissed, for failure to prosecute.

Recommendation

Because there is a genuine dispute over material facts, it is respectfully recommended that the motion for summary judgment be DENIED, and that all of Mr. Burtons claims be dismissed without prejudice for failure to prosecute.

Notice to Parties

A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.