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Powell v. NW Resources Co, 03-51244 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 03-51244 Visitors: 14
Filed: Jul. 15, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 15, 2004 Charles R. Fulbruge III Clerk No. 03-51244 Summary Calendar ROBERT L POWELL; ET AL Plaintiffs ROBERT L POWELL; ROBERT C CHILDS; WILLIS E PICKETT; TRACY ROWELL; RONALD FOLEY Plaintiffs - Appellants v NORTHWESTERN RESOURCES CO Defendant - Appellee - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-02-CV-13 - - -
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 15, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-51244
                         Summary Calendar



ROBERT L POWELL; ET AL

                     Plaintiffs

ROBERT L POWELL; ROBERT C CHILDS;
WILLIS E PICKETT; TRACY ROWELL; RONALD FOLEY

                     Plaintiffs - Appellants


     v

NORTHWESTERN RESOURCES CO

                     Defendant - Appellee


                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. W-02-CV-13
                       - - - - - - - - - -

Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.

PER CURIAM:*

     Robert L. Powell, Robert C. Childs, Willis E. Pickett,

Tracy Rowell, and Ronald Foley (collectively, the Plaintiffs)

appeal from the district court’s grant of partial summary

judgment for Northwestern Resources Co. (NRC) relating to the

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 03-51244
                                -2-

Plaintiffs’ Fair Labor Standards Act (FLSA) claim for overtime

compensation for certain pre-shift and post-shift activities.**

The Plaintiffs’ unopposed motion to correct a minor error in

their reply brief is GRANTED.

     The Plaintiffs assert that, among other things, the tasks of

signing in at NRC’s “ready room,” receiving daily work

assignments, conducting pre- and post-shift inspections of the

company’s transport vehicles, and travel time to and from their

respective job sites, constituted integral components of their

principal work activities from which NRC benefitted and for which

the Plaintiffs were entitled to be paid.

     We have reviewed the record and hold that the pre- and post-

shift activities cited by the Plaintiffs were neither performed

in the ordinary course of business nor for the benefit of NRC.

See Vega v. Gaspar, 
36 F.3d 417
, 424-25 (5th Cir. 1994).

Similarly, as determined by the district court, the Plaintiffs

offer insufficient summary judgment proof of a contract or the

existence of a custom or practice at NRC that compensated for

travel time to a designated excavation site.   See 29 U.S.C.

§ 254(b).   Accordingly, because the Plaintiffs fail to identify

specific evidence demonstrating the existence of a genuine issue

for trial, the judgment of the district court is AFFIRMED.     See




     **
       On stipulation of the parties, the Plaintiffs’ remaining
claim regarding nonpayment of a night-shift premium was withdrawn
and dismissed.
                          No. 03-51244
                               -3-

Celotex Corp. v. Catrett, 
477 U.S. 317
, 322-23 (1986); Anderson

v. Liberty Lobby, 
477 U.S. 242
, 250 (1986).

     AFFIRMED; MOTION GRANTED.

Source:  CourtListener

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