JEFFREY U. BEAVERSTOCK, District Judge.
This matter is before the Court on Defendants' Motions for Summary Judgment. (Docs. 150 and 151) ("Motions"). The Motions have been fully briefed and are ripe for resolution.
Plaintiffs brought claims against Defendants Lazer Spot, Inc. ("Lazer Spot"), Lazer Spot Holdings Corp. ("Holdings") (together "Lazer Spot Defendants"), and Southern Intermodal Xpress, LLC ("SIX") for allegedly failing to pay Plaintiffs' overtime wages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. ("FLSA"). Specifically, each Plaintiff alleged that one or more Defendants misclassified them as exempt employees pursuant to the Motor Carrier Act exemption contained in 29 U.S.C. § 213(b)(1). After due consideration, and for the reasons stated in Defendants' briefs and below, Defendants' Motions for Summary Judgment are GRANTED, and Plaintiffs' claims are dismissed with prejudice.
On August 9, 2017, a group of 11 Plaintiffs, including Cleotho Mosley, Corwin Scott, and Oscar Gibson, filed suit against Defendants asserting violations of the FLSA ("Bolar"). (Doc. 1). In December 2018, the Court entered an order consolidating Bolar with a later-filed case entitled Jones, et al. v. Southern Intermodal Xpress, LLC, et al., No. 17-cv-520, in which a number of individuals sued SIX for the same FLSA violations asserted in Bolar. (Doc. 43). The consolidated cases included 20 Plaintiffs, each of whom pursued his claims on an individual basis. (Doc. 67). Of those 20 Plaintiffs, seven pursued claims against all Defendants, one pursued claims only against the Lazer Spot Defendants, and 12 pursued claims only against SIX. (Id.). Although Gibson initially asserted claims against Lazer Spot and Holdings, he later clarified that he was not employed by either entity, and pursued his claims solely against SIX. (Id.). Mosley and Scott worked for both Lazer Spot and SIX. (Id.). Over the course of the litigation, 17 Plaintiffs either withdrew their claims or failed to prosecute their claims after their counsel withdrew from representing them. (See Docs. 88-102, 108, 110, 118, 121, 129, 136, 138-140). At the time Defendants moved for summary judgment, only Mosley, Scott, and Gibson continued to prosecute their claims against Defendants.
This case arises out of the work that Plaintiffs performed when they were employed by SIX and, in the case of Mosley and Scott, by Lazer Spot, at the paper mill and distribution center operated by Kimberly Clark ("KC") in Mobile, Alabama.
Lazer Spot is a third-party logistics company that provides transportation and yard management services to various plants, mills, and consumer-goods companies across the United States. (Doc. 150-21 at 2). Among the services it provides are spotting (i.e., moving loaded and empty trailers between two or more points, often in and around a client's facility, and sometimes offsite) and shuttling (i.e., transporting loaded or unloaded trailers over public roads to and from a client's facility). (Id. at 2; Doc. 150-20 at 3, 4).
SIX, like Lazer Spot, provides transportation services to its clients and at the KC facilities. SIX's primary business is the transport of intermodal cargo containers loaded with products to and from the Ports of Mobile and New Orleans, but a fraction of SIX's employees provides driving services at the KC facilities in Mobile. (Doc. 152-1 at 2, 3). SIX hires all of its drivers in the same manner, regardless of whether they are assigned to work in Mobile or New Orleans and regardless of whether they are assigned intermodal or KC work. (Doc. 152-1 at 4, 5). While some drivers are ultimately assigned to primarily work at KC and some are assigned primarily to be an intermodal driver, SIX commonly moves drivers between intermodal freight and KC work. (Doc. 152-3 at 7, 8-10; Doc. 152-4 at 22; Doc. 152-9 at 36, 37).
All Lazer Spot and SIX drivers are required to maintain commercial driver's licenses as a condition of employment, as well as meet other standards set by the federal Department of Transportation. (Doc. 150-4 at 5). Lazer Spot and SIX are each licensed with the DOT and have Federal Motor Carrier Safety Administration ("FMCSA") authorization necessary to act as interstate carriers. (Doc. 150-21 at 2; Doc. 152-1 at 2).
Lazer Spot provided spotting and shuttling services at the KC facilities in Mobile until April 2015 when its contract with KC ended. (Docs. 150-2 at 3; 150-4 at 3). On April 1, 2015, SIX assumed responsibility for the spotting and shuttling needs at the KC facilities and hired at least some of the former Lazer Spot drivers; thereafter, Lazer Spot did not engage in any operations or employ any workers at the facility. (Doc. 150-20 at 3; Doc. 150-13 at 54, 55). To provide these services, Lazer Spot and SIX employed drivers who transported goods in and around the paper mill and the nearby distribution center ("DC").
The KC mill uses raw fiber materials, including wood pulp and recycled fibers, to manufacture finished paper products such as toilet paper, tissue paper, paper towels, and "Convermat" rolls, which are very large rolls of paper. (Doc. 150-2 at 6; Doc. 150-4 at 2; Doc. 150-13 at 25). KC's Mobile operation consists of two main facilities—a production mill and the DC. (Doc. 150-4 at 2; Doc. 150-5 at 4, 5; Doc. 150-7 at 13, 14; Doc. 150-11; Doc. 150-13 at 25). KC also utilizes a third-party warehouse owned by Merchants Transfer Co. ("Merchants"). (Doc. 150-4 at 5; Doc. 150-5 at 8). The mill, the DC, and the Merchants warehouse are all separated by roads that are open to the public. (Doc. 150-4 at 3; Doc. 150-5 at 6; Doc. 150-7 at 13; Doc. 150-13 at 26-32, 39-41; Doc. 150-11; Doc. 150-15; Doc. 150-16; Doc. 150-17; 150-19 at 3, 4).
Bay Bridge Road bisects the mill and the DC. The mill is located immediately north of Bay Bridge Road and the DC is located immediately south of Bay Bridge Road. (Doc. 150-4 at 3; Doc. 150-7 at 13-20; Doc. 150-13 at 26-32, 39-41; Doc. 150-15; Doc. 150-16; Doc. 150-17). Herbert Street forms a three-way intersection with the south side of Bay Bridge Road and leads to the DC. (Doc. 150-2 at 4, 5; Doc. 150-3; Doc. 150-4 at 3; Doc. 150-7 at 13-20; Doc. 150-13 at 26-32, 39-41; Doc. 150-15; Doc. 150-16; Doc. 150-17). The mill is accessible via Bay Bridge Road and Paper Mill Road, which forms a three-way intersection with the north side of Bay Bridge Road. (Doc. 150-2 at 12; Doc. 150-4 at 3; Doc. 150-7 at 28, 29; Doc. 150-13 at 43-47). Merchants is located off of Paper Mill Road, approximately 1.5 miles to the north of the KC mill. (Doc. 150-4 at 3; 150-6 at 4). Bay Bridge Road, Paper Mill Road, and Herbert Street all function as public thoroughfares and the public utilizes these streets. (Doc. 150-2 at 17, 18; Doc. 150-6 at 4; Doc. 150-5 at 7, 22-24; Doc. 150-7 at 30; Doc. 150-13 at 40, 41, 52, 53; Doc. 150-18 at 2, Ex. 1; Doc. 150-19 at 3-5).
KC contracted with Lazer Spot and, later, SIX, to provide drivers to transport paper products and raw fiber material between the mill, the DC, and Merchants. (Doc. 150-4 at 3). KC required Lazer Spot and SIX to provide drivers to complete three types of trips over the roads around the facilities, as described below.
KC expected all Lazer Spot and SIX drivers to be capable of performing all of the driver services under the parties' respective contracts and did not require any drivers to be assigned solely to one area of the mill or DC. (Doc. 150-4 at 5). The Lazer Spot and SIX drivers who worked at the KC facilities in Mobile were subject to being called upon at any time to drive on public roads to transport finished paper goods and raw fiber material.
KC required Lazer Spot and SIX drivers to adhere to all DOT regulations and to maintain a commercial driver's license. (Doc. 150-4 at 5). Per KC's requirements, all of the Lazer Spot and SIX trucks at the Mobile facilities were licensed and tagged in a manner that allowed them to operate on the public roads around the facilities, and the vehicles had to meet annual DOT inspections. (Id.; Doc. 150-5 at 9; Doc. 152-11 at 5). The vehicles that Plaintiffs operated at the KC facilities as drivers for Lazer Spot and SIX weighed in excess of 10,000 pounds. (Doc. 150-5 at 9, 10, 20; Doc. 150-21 at 5, Ex. 4; Doc. 152-1 at 2).
The KC mill operates 24 hours a day, 7 days per week. (Doc. 150-4 at 4). When all three palletizers (i.e., machines that stack goods onto a pallet) were running, Lazer Spot and SIX drivers were required to make approximately 21 trips from the mill to the DC per day. (Id.; Doc. 150-5 at 19, 25).
When the palletized paper products left the mill, they were ready to be transported to KC's customers. The goods were not modified or re-packaged once they left the mill. (Doc. 150-2 at 13, 14, 18, 20-22). KC distributed the paper products manufactured at its mill to customers throughout the country. A significant portion of the finished paper products were sent to out-of-state customers, including customers in Georgia, Texas, Florida, Ohio, South Carolina, and Illinois. (Doc. 150-4 at 2, 4; Doc. 150-5 at 21).
These interstate transports were triggered by orders from out-of-state customers. (Doc. 150-2 at 18; Doc. 150-4 at 2, 4; Doc. 150-5 at 17). KC's corporate representative testified that when the goods left the mill, KC intended and expected that the goods would continue on in an interstate trip to reach the customers who ordered the goods. (Doc. 150-4 at 4). In many cases, over-the-road drivers picked up and transported the paper products across state lines the very same day that Lazer Spot or SIX drivers delivered the goods from the mill to the DC. (Doc. 150-5 at 17). Even when the goods did not immediately leave the DC after Lazer Spot or SIX drivers delivered them there, over-the-road drivers typically picked them up within eight to twelve hours. (Id. at 18).
To complete the trip from the mill to the DC, drivers exited the mill through a gate, crossed over Bay Bridge Road, drove down Herbert Street, and passed by a guard shack at the end of Herbert Street to enter the DC. (Doc. 150-4 at 3; Doc. 150-13 at 35-40).
The raw fiber transported from the DC to the mill by Lazer Spot and SIX drivers was also part of an interstate journey, albeit an inbound (rather than outbound) journey. The raw fiber [?] was purchased by KC and shipped to its DC from outside of Alabama. (Doc. 150-2 at 6-9) (KC ordered "pulp from as far away as South America and the Arctic Circle and Canada" and ordered "recovered paper ... from all over," including "as far away as Wisconsin"); see also Doc. 150-13 at 47 (Defendant Scott testifying that he had no knowledge of the origin point of the raw fiber before it arrived at the DC); (Doc. 150-7 at 25, 26). The final destination of the raw fiber was the mill, where it was utilized by KC to manufacture paper products. (Doc. 150-2 at 6-11; see also Doc. 150-13 at 44). The raw fiber came to rest briefly at the DC before Lazer Spot and SIX drivers picked it up and moved it to the mill. (Doc. 150-6 at 4).
To retrieve and deliver the raw fiber, Lazer Spot and SIX drivers exited the mill onto Paper Mill Road through a non-gated entrance referred to as the "construction entrance," turned left onto Paper Mill Road, turned left on Bay Bridge Road, turned right onto Herbert Street, and drove down Herbert Street to enter the DC (and vice versa). (Doc. 150-2 at 12; Doc. 150-4 at 3; Doc. 150-13 at 26-32, 43-47; Doc. 150-15; Doc. 150-16; Doc. 150-17).
KC also produced finished "Convermat" rolls, which were transferred by Lazer Spot and SIX drivers to Merchants and then shipped out of state to KC's customer, Convermat. (Doc. 150-4 at 5).
Merchants is located at 1200 Paper Mill Road, approximately one mile from KC. (Doc. 152-12 at 3, 34). It is undisputed that Paper Mill Road is a public road, and that at least two of the remaining Plaintiffs drove loads of Convermat to Merchants.
To deliver a Convermat load, Lazer Spot and SIX drivers exited the mill through the construction entrance, turned right onto Paper Mill Road, and traveled approximately 1.5 miles on Paper Mill Road to reach the warehouse. (Doc. 150-5 at 25, 26; Doc. 150-6 at 4; Doc. 150-13 at 51-53).
Lazer Spot hired Plaintiff Cleotho Mosley on April 16, 2014, and he worked for the Company as a driver until April 1, 2015. (Doc. 150-7 at 3, 4, 27). Mosley worked at both the mill and the DC. (Id. at 21). Two of Mosley's co-workers, including his co-Plaintiffs testified that they witnessed him transporting goods on public roads during his employment with Lazer Spot. Scott testified that he saw Mosley drive across Bay Bridge Road and down Herbert Street to take trailers of palletized finished paper products from the mill to the DC. (Doc. 150-13 at 57, 58). Byron Nettles, another former Lazer Spot employee who regularly worked alongside Mosley, witnessed Mosley (i) transporting finished paper products from the mill to the DC, (ii) transporting Convermat loads from the mill to Merchants, and (iii) transporting loads of raw fiber from the DC to the mill. (Doc. 150-12 at 6-10).
Consistent with these witness accounts, Plaintiff Mosley testified in his verified answers to Lazer Spot's interrogatories that he drove Lazer Spot vehicles to various locations. (Doc. 26 at 4). During his deposition, Mosley contradicted his own verified answers, which he admitted he signed but said he did not review, by asserting that he did not transport goods on these public roads. (Doc. 150-7 at 16). He conceded that, as a Lazer Spot driver, he was required to be willing and able to transport goods on public roads. (Id. at 24-25; Doc. 152-1).
When SIX took over the KC contract from Lazer Spot in 2015, Mosley applied for a driver position and was hired by SIX and assigned to KC. (Doc. 152-2 at 3, 7, 8). Mosley became a lead driver for SIX during the last week of April 2017. (Doc. 152-17 at 2). As a driver and a lead driver, Mosley transported finished tissue paper from the mill to the DC. (Doc. 152-2 at 16-18, 25, 26; Doc. 152-18). He also transported Convermat loads to Merchants. (Doc. 152-2 at 5, 6, 15, 16, 24, 25, 29-36 (confirming at least one Convermat trip per month between September 2016-August 2017); Doc. 152-18). Mosley performed both tasks on a regular basis. (Id.). Mosley's driving activities for SIX are confirmed by witness accounts, move sheets, and GPS data.
Lazer Spot hired Scott as a driver in September 2014. He continued to work for Lazer Spot until April 1, 2015. (Doc. 150-13 at 9, 10, 55). Scott testified that, during his employment with Lazer Spot, he spent approximately 40% of his time driving from the mill to the DC to deliver trailers loaded with pallets of finished paper products that were bound for out-of-state destinations; this work was, in Scott's words, "an everyday job." (Id. at 42, 43, 59).
SIX hired Scott on April 1, 2015 to perform the same job duties that he performed for Lazer Spot. (Doc. 152-8 at 18, 19). Scott resigned on July 24, 2016 to take a position at KC. (Id. at 19, 25). As a SIX driver, Scott worked the night shift (id. at 28), and he transported finished tissue paper from the mill to the DC on a daily basis. (Id. at 7-11, 14, 15, 27).
Scott denies that he transported Convermat loads during the time period relevant to his claims against Lazer Spot and SIX. (Id. 30).
SIX first employed Oscar Gibson as a Class A driver from March 2, 2016 until September 23, 2016 when he quit. (Doc. 152-3 at 7, 8; Doc. 152-7 at 3). He was rehired in April 2017 and worked at SIX until October 4, 2017. (Doc. 152-1 at 5; Doc. 152-7 at 8, 9).
Gibson was assigned to KC for his entire employment. (Id. at 4). Gibson transported tissue paper loads from the mill to the DC, as often as five to six loads a day. (Doc. 152-7 at 22-24). Gibson worked the day shift in 2016 and the night shift in 2017, and admits that he transported Convermat loads when he worked the day shift. (Doc. 152-7 at 13). While Gibson denied transporting loads to Merchants at night in 2017 at certain times in his deposition (id. at 25, 43, 44), he contradicted himself during his deposition, and the move sheets that he created as well as GPS data confirm that he transported Convermat loads in 2017. (See generally, Doc. 151 at 21-24).
Summary judgment is appropriate when the moving party 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). "The non-moving party `may not rest on the mere allegations or denials of the [non-moving] party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Mallini v. Ala. Dep't of Indus. Rels., No. 10-0130-CG-C, 2011 WL 1897646, at *3 (S.D. Ala. May 18, 2011) (quoting Fed. R. Civ. P. 56(e)). "The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment." Beard v. Langham, 649 F.Supp.2d 1332, 1336 (S.D. Ala. 2009). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It is "material" if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248.
"[T]he question of whether [an] employee's particular activities exclude [him] from the overtime benefits of the FLSA is a question of law," which may be determined on summary judgment. Langley v. Gymboree Ops., Inc., 530 F.Supp.2d 1297, 1301 (S.D. Fla. 2008) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)). Pursuant to the Supreme Court's ruling in the 2018 case Encino Motorcars, LLC v. Navarro, courts analyzing the application of an exemption to the FLSA should apply a "fair reading" to the exemption. 138 S.Ct. 1134, 1142 (2018) (internal citations omitted); see also Holt v. City of Battle Creek, 925 F.3d 905, 909-10 (6th Cir. 2019); Ramirez v. Statewide Harvesting & Hauling, LLC, No. 8:17-cv-1753-T-35AEP, 2019 WL 3383622, at *3 (M.D. Fla. May 24, 2019) (applying the "fair reading" standard to the agricultural and motor carrier exemptions).
Here, the undisputed record evidence leaves no genuine dispute as to Plaintiffs' proper classification as exempt employees pursuant to the Motor Carrier Exemption under either the narrow construction or the fair reading standard.
Employment does not guarantee the payment of a premium wage for overtime under the FLSA. Rather, Congress has exempted various categories of employees from the FLSA overtime requirements, including those subject to the Motor Carrier Act exemption ("MCE"):
29 U.S.C. § 213(b)(1). The Eleventh Circuit has held that the MCE applies to an employee who is:
Mena v. McArthur Dairy, 352 F. App'x 303, 305-06 (11th Cir. 2009) (per curiam); Baez v. Wells Fargo Armored Serv. Corp., 938 F.2d 180, 182 (11th Cir. 1991) (per curiam) (quoting 29 C.F.R. § 782.2(a)).
The Plaintiffs do not dispute that Lazer Spot and SIX are motor carriers subject to the DOT's jurisdiction. Under the MCA, the Secretary has jurisdiction over "motor carriers" and "motor private carriers." 49 U.S.C. § 31502(b). A "motor carrier" is "a person providing motor vehicle transportation for compensation." See Id. at § 13102(14). A "motor vehicle" is a "vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Secretary [of Transportation]." Id. at § 13102(16). A "highway" means "a road, highway, street, and way in a State." Id. at § 13102(9).
Lazer Spot and SIX are "motor carriers" within the meaning of the MCA. First, Lazer Spot and SIX are each licensed with the DOT and have FMCSA authorization necessary to act as interstate carriers, which establishes that the DOT has jurisdiction over each Company. See Baez, 938 F.2d at 182 ("[T]he permit issued by the [DOT] indicates that jurisdiction has already been exercised. Thus, it is clear that [defendant] is a motor carrier subject to the Secretary's jurisdiction.") (internal citation omitted); Walters v. Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1227 (11th Cir. 2009) (per curiam) ("[T]he fact that a company holds these kind of authorizations indicates that the DOT has exercised jurisdiction over it."). Second, each Company received compensation from clients to transport goods on public highways. (Doc. 150-21 at 2; Doc. 152-1 at 2, 3). Third, as detailed below, the transportation that they engaged in was interstate in nature because the goods were shipped to out-of-state destinations or inbound from origin points outside the state. Accordingly, the MCE's first requirement is satisfied in this case.
To satisfy the second prong of the MCE, the Plaintiffs must have engaged in activities affecting the safe operation of motor vehicles while transporting passengers or property in interstate commerce. Nolasco v. AKS Cartage Corp., 2018 WL 2322599, at *10 (S.D. Fla. May 22, 2018); Pritchett v. Werner Enters., Inc., 2013 WL 4524337, at *2 (S.D. Ala. Aug. 27, 2013).
Courts have routinely held that, as a matter of law, employees who drive motor vehicles affect the safety of operation of motor vehicles as required to satisfy the second prong of the MCE. See, e.g., Levinson v. Spector Motor Serv., 330 U.S. 649, 685 (1947); Morris v. McComb, 332 U.S. 422, 436-38 (1947). While the MCE applies to numerous types of jobs, the exemption is most obviously applicable to the actual drivers of motor vehicles. See 29 C.F.R. § 782.3 (defining "driver" as "an individual who drives a motor vehicle in transportation which is, within the meaning of the Motor Carrier Act, in interstate or foreign commerce").
Plaintiffs characterize themselves as "spotters" and argue that, as "spotters," they could not have qualified for the MCE because the DOL has excepted spotters from its coverage. (Doc. 164 at 13, 14 (citing 29 C.F.R. § 782.3(b))). However, there is no dispute of material fact as to the drivers' job duties, which include transporting finished KC products over public roads. See Doc. 164-1 (providing testimony from Mosley that his "duties were to move ... trailers ... from the paper mill ... to the Distribution Center . . . or vice versa), Doc. 164-2 (same testimony from Scott); Doc. 150 at 5-12; Doc. 152-7 at 16, 17, 22-24 ("probably do five loads a day. Sometimes six..."); Doc. 152-8 at 7-15 ("That's an everyday job. We do that every day.").
The regulatory language that Plaintiffs cite for the proposition that spotters are non-exempt applies to employees who work solely within a private yard utilizing a vehicle that cannot and does not travel on public roads. See, e.g., Verdi v. Domino Logistics Co., No. 1:10-CV-1888, 2011 U.S. Dist. LEXIS 65326, at *7 (N.D. Ohio June 16, 2011) (citing 29 C.F.R. § 782.3(b) in support of finding yard "switchers" nonexempt where "Plaintiffs drove . . . hostler tractors that `were not registered vehicles and did not have working turn signals or flashers'" and "nothing in the record suggests that the Plaintiffs drove `over the public highways'"); Billingslea v. S. Freight, Inc., 699 F.Supp.2d 1369, 1377 (N.D. Ga. 2010) (citing 29 C.F.R. § 782.3(b) in support of finding a yard hostler nonexempt where "the only vehicle that Plaintiff drove or was authorized to drive as part of his employment with Defendant was a hostler tractor that he could not, and did not, take on to any public roads or interstate highways").
Unlike the "spotters" described in 29 C.F.R. § 782.3(b), and those held to be non-exempt in Verdi and Billingslea, Plaintiffs and the other drivers operated vehicles that were registered, insured, and intended for use on public roads, and driven regularly on public roads. (Doc. 150-5 at 19, 20; Doc. 150-20; Doc. 152-1 at 4; Doc. 152-11 at 5).
Moreover, the FLSA and the applicable agency guidance make clear that a driver performs safety-affecting work, and therefore qualifies for the exemption, if he could have been reasonably expected to participate in interstate trips. See 29 U.S.C. § 213(b) (exempting from the FLSA's overtime provisions any employee "with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service"); 29 C.F.R. § 782.2(a)(3) ("As a general rule, if the bona fide duties of the job performed by the employee are in fact such that he is (or, in the case of a member of a group of drivers ... is likely to be) called upon in the ordinary course of his work to perform, either regularly or from time to time, safety-affecting activities . . ., he comes within the exemption in all workweeks when he is employed at such job . . . [t]he rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting "safety of operation."); Doc. 150-23 (explaining that the Secretary of Transportation will assert jurisdiction over employees who "could have been called upon to, or actually did, engage in the carrier's interstate activities"); Doc. 150-24 at § 24e01(b) (explaining that drivers who could be reasonably expected to participate in interstate trips would be exempt under § 13(b)(1) "notwithstanding references to the contrary contained in 29 CFR 782.2").
As described herein, Plaintiffs drove their employers' vehicles on public roads, and they were subject to being called upon to make such trips during the entire period of their employment as drivers for Lazer Spot and SIX. Accordingly, whether they are called spotters or drivers, Plaintiffs engaged in activities that directly affected the safety of operation of motor vehicles.
It is undisputed that Plaintiffs were subject to being called upon to transport goods on the public roads surrounding the KC facilities and that Plaintiffs made such trips at certain points during their respective periods of employment. Nor is it disputed that other Lazer Spot and SIX drivers regularly transported goods on public roads, including Bay Bridge Road, Herbert Street, and Paper Mill Road. (Doc. 164 at 7).
Although Scott denied transporting Convermat loads, he confirmed that he regularly transported finished paper goods and raw fiber between the mill and the DC, which required him to drive on Bay Bridge Road, Herbert Street, and Paper Mill Road. (Doc. 150-13 at 33-47). Scott testified, "[t]hat's an everyday job. We do that every day." (Doc. 152-8 at 14, 15).
Mosley stated in sworn answers to Lazer Spot's interrogatories that he drove on Paper Mill Road and Herbert Street. (Doc. 26 at 4). Although during his deposition Mosley contradicted his earlier admission, multiple witnesses confirmed Mosley's initial admission, testifying that they personally witnessed Mosley transporting finished goods on the public roads around the KC facilities when he worked as a Lazer Spot driver. (See Doc. 150-13 at 57, 58 (Defendant Scott testifying that he witnessed Mosley drive across Bay Bridge Road and down Herbert Street to take trailers of palletized paper products from the mill to the DC); see also Doc. 150-12 at 6-10 (Byron Nettles testifying that he regularly worked shifts alongside Mosley, and he witnessed Mosley (i) driving palletized loads of finished paper products from the mill to the DC, (ii) driving Convermat loads from the mill to Merchants, and (iii) driving loads of raw fiber from the DC to the mill during the period when they both worked for Lazer Spot as drivers)). Moreover, Mosley conceded that, as a Lazer Spot driver, he was required to be willing and able to transport goods on public roads. (Doc. 150-7 at 24, 25; Doc. 150-8). And while he provided conflicting testimony regarding his driving activities for Lazer Spot, he confirmed in his deposition that he transported finished tissue paper from the mill to the DC on a regular basis throughout his employment with SIX. (Doc. 152-2 at 16-18, 25, 26; Doc. 152-18.) He also confirmed that he made at least one trip with Convermat to Merchants per month between September 2016 and August 2017. (Doc. 152-2 at 5, 6, 15, 16, 24, 25, 29-36; Doc. 152-18).
Gibson testified that in 2016 and 2017 he took loads of finished tissue paper from the mill to the DC five or six times a day, and load sheets confirm his frequent trips. (Doc. 152-7 at 24; Doc. 152-20). While Gibson contends in his testimony that he did not move Convermat to Merchants when he was on the night shift, SIX presented load sheets and GPS evidence which confirm that Gibson made numerous trips to Merchants, which the Plaintiffs do not dispute. (Doc. 151 at 20-24).
The attempts by Mosley and Gibson to establish that they did not drive on public roads as part of their employment with, respectively, Lazer Spot and SIX are insufficient to create a genuine issue of material fact as to their duties. A Plaintiff may not avoid summary judgment by disputing his own admissions. See, e.g., Calvo v. B&R Supermarket, Inc., 63 F.Supp.3d 1369, 1372 (S.D. Fla. 2014) (Bloom, J.) (disregarding Plaintiff's declaration where it "consist[ed] in large part of self-serving statement and opinions otherwise unsubstantiated by the record before the [court]"). Mosley's testimony about his duties during his employment with Lazer Spot is directly contradicted by his prior admission as well as the testimony of other witnesses who witnessed Mosley transporting goods on public roads during his employment as a Lazer Spot driver. His denial is therefore insufficient to create a genuine issue of material fact. See Riley v. City of Montgomery, 104 F.3d 1247, 1251 (11th Cir. 1997) (affirming summary judgment for defendant where Plaintiff's version of events was "inherently incredible and could not support reasonable inferences sufficient to create an issue of fact"). Similarly, Gibson's testimony denying that he moved Convermat to Merchants at night is "completely unsupported by any other record evidence [and] insufficient to resist summary judgment." Castillo, 2017 WL 945188, at *6 (S.D. Fla. Feb. 10, 2017) (citation omitted). Moreover, his testimony is "blatantly contradicted by the record, so that no reasonable jury could believe it." Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."); Sparman v. Blount Cty. Bd. of Educ., 2016 WL 5110484, at *3 (N.D. Ala. Sept. 19, 2016).
Assuming arguendo Plaintiffs did not make trips on public roads in interstate commerce, or did not make such trips during particular periods of their employment, they would still be subject to the MCE because there is no dispute that they were subject to being called upon to transport goods over the public roads around the KC facilities throughout their employment. (Doc. 150-7 at 24, 25; Doc. 150-8; Doc. 152-1 at 4). The MCE squarely applies where, as here, a driver "could have been called upon to, or actually did, engage in the carrier's interstate activities." Doc. 150-23; see also Doc. 150-24 at § 24e01(b) ("Where a driver ... has not made an actual interstate trip ... they may still be subject to DOT's jurisdiction, if: ... the driver ... could have, in the regular course of his/her employment, been reasonably expected to make one of the carrier's interstate runs[.]"); Vidinliev v. Carey Int'l, Inc., 2009 WL 2848344, at *2 (N.D. Ga. 2009) (granting summary judgment to employer and finding that drivers were exempt because "[e]ven though many of the Plaintiffs did not make ... interstate trips, any of them could have reasonably been expected to do so"). There is no dispute that Lazer Spot and SIX drivers were required to be prepared to transport goods over public roads as a condition of their employment, and that they were subject to being called upon to do so during the entire period of their employment with Defendants. Thus, even if, arguendo Plaintiffs did not drive over public roads for some portion of their employment, they still satisfied the MCE's requirements.
In light of these undisputed facts, it is clear that the Plaintiffs and other drivers drove on public roads. A "public road" is defined as one that is (i) under the jurisdiction of a public agency and open to public travel, or (ii) on private property that is open to public travel. See 49 C.F.R. § 390.5. "`Open to public travel' means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulation other than restrictions based on size, weight, or class of registration." Id.
Here, the roads at issue—Bay Bridge Road, Herbert Street, and Paper Mill Road—were all open to the public. (Doc. 150-4 at 3; Doc. 150-5 at 6; Doc. 150-7 at 30; Doc. 150-13 at 40, 41; Doc. 150-19 at 3-5). The roads were traveled by passenger vehicles and pedestrians. (Doc. 150-7 at 30; Doc. 150-13 at 40, 41; Doc. 150-19 at 3-5). Numerous other businesses were located off of the three roads, and those businesses' employees utilized the roads. (Doc. 150-2 at 17, 18; Doc. 150-13 at 52, 53; Doc. 150-19 at 4). In addition, the City of Mobile responded to public safety issues such as car accidents and performed maintenance work on Herbert Street on several occasions, and it prohibited KC from enlarging the guard shack at the end of the street on the basis that it would encroach on the public right of way. (Doc. 150-5 at 7, 22-24; Doc. 150-18 at 2, Ex. 1; Doc. 150-19 at 5).
Even Herbert Street, for which there is a dispute about ownership,
Based on these facts, this Court finds that each of the three roads at issue are and were public within the meaning of 49 C.F.R. § 390.5. Accordingly, Plaintiffs' work transporting goods over Herbert Street and the other roads constituted transportation on "public highways" within the meaning of the MCE.
The parties do not dispute that Plaintiffs did not cross state lines while driving Lazer Spot or SIX vehicles. Thus, the Court must determine whether their intrastate driving trips satisfy the MCE.
It is well settled that trips within a single state are considered to be interstate in nature for purposes of the MCE when those trips are part of a practical continuity of movement across state lines from the point of origin to the point of destination. Mena v. McArthur Dairy, LLC, No. 08-22585-CIV-UNGARO, 2009 WL 10666944 at *6 (S.D. Fla. May 12, 2009) (holding that Plaintiff's transportation of goods within a single state formed part of a "practical continuity of movement" across state lines where the products that Plaintiff delivered within the state were bound, at the time they were delivered, for a destination outside of the state). Indeed, while "[h]ighway transportation by motor vehicle from one State to another, in the course of which the vehicles cross the State line, clearly constitutes interstate commerce . . . [t]he result is no different where the vehicles do not actually cross State lines but operate solely within a single State, if what is being transported is actually moving in interstate commerce within the meaning of [the FLSA and the MCA]; the fact that other carriers transport it out of or into the State is not material." 29 C.F.R. § 782.7(b)(1); see also Doc. 150-24 at § 24b00 ("The movement of trucks, tractors, or trailers . . . over the public highways between loading platforms, the garage, storage facilities or terminals, where such movement is either the beginning or continuation of an interstate or foreign journey, is itself transportation in interstate or foreign commerce subject to the jurisdiction of the DOT.").
Drawing upon this well-settled law, courts in this Circuit have routinely applied the MCE to drivers who complete one purely intrastate portion of a shipment in interstate commerce, as Plaintiffs and other drivers did for Lazer Spot and SIX. See Mena, 2009 WL 10666944 (affirming that MCE applied to intrastate delivery drivers where much of the property they transported was either bound for out-of-state destinations or had been manufactured in other states and delivered to the employer's warehouse where it was picked up by Plaintiffs based on both standing orders and customers' projected needs); Baez, 938 F.2d at 182 (holding that intrastate drivers who never crossed state lines were exempt under the MCE where the checks and other instruments they transported were bound for banks outside the state); Likes v. DHL Express (USA), Inc., No. 2:08-cv-00428-AKK, 2012 U.S. Dist. LEXIS 188599, at *45 (N.D. Ala. Mar. 7, 2012) ("Plaintiffs never crossed state lines. Nonetheless, because they transported packages that moved in interstate commerce, the interstate requirement is satisfied."); Williams v. Kenco Logistic Servs., 2010 WL 2670852 (M.D. Fla. 2010) (holding that a delivery driver for a company providing distribution service for Whirlpool was exempt pursuant to MCE where he transported Whirlpool goods manufactured out of the state from a Florida distribution center to customers in Florida).
Like the drivers in Baez, Likes, Mena, and Williams, the Lazer Spot and SIX drivers completed one leg of a larger interstate shipment of finished paper goods. The interstate shipment was triggered when a buyer such as Convermat, Wal-Mart, or Target ordered paper goods manufactured and distributed by KC. (Doc. 150-2 at 18; Doc. 150-4 at 2, 4; Doc. 150-5 at 17). In order to fill the orders, KC utilized Lazer Spot and SIX drivers, including Plaintiffs, to bring finished paper goods from the mill to the DC (or to the warehouse), where the goods continued to their final destinations. At the time the drivers drove the goods away from the mill, the goods were bound for destinations throughout the United States, including Georgia, Texas, Florida, Ohio, South Carolina, and Illinois. (Doc. 150-4 at 2, 4; Doc. 150-5 at 21). A significant portion of the goods traveled to out-of-state customers. (Doc. 150-4 at 4). As KC's corporate representative explained, "[i]f you [we]re in the southern part of the United States, the Southwest, the Southeast, the Midwest, and portions of the Rust Belt, the high probability if you get a Scott 1000 package is it was made [at the KC mill] in Mobile." (Doc. 150-2 at 15, 16). In addition, Plaintiffs were subject to being called upon to complete (and did, in fact, complete) the last leg of the interstate shipment of the raw fiber used to make the paper products. (Id. at 6-11; see also Doc. 150-13 at 44).
Plaintiffs argue that they did not transport goods in interstate commerce because the goods they transported "were unloaded at the Distribution Center." (Doc. 164 at 15). The Supreme Court has made clear, however, that "[a] temporary pause [in a warehouse] does not mean that [goods] are no longer `in commerce' within the meaning of the [motor carrier act]." Walling v. Jacksonville Paper Co., 317 U.S. 564, 568 (1943). As noted above, the paper goods that Plaintiffs transported to the DC were typically transported out of state within eight to twelve hours, if not immediately, and the raw fiber rested at the DC for short periods of time. (Doc. 150-4 at 4; Doc. 150-5 at 17; Doc. 150-6 at 4). Plaintiffs cannot dispute these facts; they admit that they have no knowledge of the length of time the goods were at the DC. (Doc. 150-13 at 25, 26, 53; Doc. 150-7 at 15). Thus, the goods remained in the continuous flow of interstate commerce.
In sum, the undisputed evidence establishes that Plaintiffs drove commercial vehicles on public roads, moving finished goods bound for (or arriving from) out-of-state locations. Thus, Plaintiffs engaged in activities that directly affected the safety of operation of motor vehicles in the transportation on the public highways of property in interstate commerce within the meaning of the MCE.
Plaintiffs argue that Court must engage in a week by week analysis of the work activities actually performed by them in order to determine which, if any, weeks the MCE should apply. Such an analysis has been rejected by the DOT, DOL, and many courts throughout the country. Instead, the DOL and a majority of Courts have adopted the DOT's four-month rule,
Plaintiffs also assert that their trips to Merchants did not affect the safety of motor vehicles in interstate commerce because the trips were de minimis. (Doc. 164 at 19-23). As noted above, Plaintiffs were subject to being called upon to make trips to Merchants during the entire period of their employment, and did, in fact, make such trips. (Doc. 150-13 at 49-53; Doc. 150-12 at 6-10 (describing witnesses Mosley's trips to Merchants); Doc. 150-5 at 11, 16-19). This alone would be sufficient to support their exempt status. See Rodriguez v. R&L Carriers Shared Servs., L.L.C., No. 09-23176-CIV, 2010 U.S. Dist. LEXIS 151840, at *9 (S.D. Fla. June 8, 2010) (rejecting a de minimis argument in an MCE case, and explaining that "while the Parties may dispute the actual amount of time spent" on exempt work, "the undisputed facts show that during the course of his employment, [plaintiff] engaged in duties affecting the safety of operations on commercial motor vehicles," which "is enough to trigger the [MCE]" because "`[i]It is the character of the activities rather than the proportion of either the employee's time or of his activities' that determines eligibility for overtime under the FLSA") (quoting Levinson v. Spector Motor Serv., 330 U.S. 649, 651-52 (1947)). Moreover, even if Plaintiffs rarely or never completed trips to Merchants, and even if they had established that they were not subject to being called upon to do so, the record is clear that they drove on two other public roads as part of their job duties. See supra Section B.2.b.
The job functions of the Lazer Spot and SIX drivers place them squarely within the scope of the MCE. They transported finished products in interstate commerce over public roads on a regular basis. Accordingly, this Court finds that Plaintiffs were properly classified as exempt pursuant to the MCE and were not entitled to overtime under the FLSA.
The only remaining question is whether the so-called "small vehicle exception" to the MCE is applicable. This exception emanates from the DOL's determination that, for the MCE to apply, the vehicle at issue cannot weigh 10,000 pounds or less. See, e.g., Santana v. Lykes Exclusive, LP, 2013 WL 1001850, at *3 (S.D. Fla. 2013) (citing a DOL bulletin and noting that "the [MCE] does not apply to a driver ... in any workweek in which their work affects the safe, interstate operation of motor vehicles weighing 10,000 pounds or less").
The undisputed evidence, including sworn testimony and documentary evidence, confirms that the vehicles that Plaintiffs drove weighed in excess of 10,000 pounds. (Doc. 150-5 at 9, 10, 20; Doc. 150-21 at 5, Ex. 4; Doc. 152-1 at 2). Accordingly, the small vehicle exception does not apply.
Defendants have established that the MCE applies to the Plaintiff drivers, and therefore they are entitled to judgment in their favor as a matter of law. The undersigned further finds that Lazer Spot is entitled to judgment as a matter of law on the additional ground that Plaintiffs have no evidence of a "willful" violation, and therefore their claims against Lazer Spot fall entirely outside of the two-year statute of limitations. This finding applies to SIX as well, to the extent Plaintiffs seek to make a claim against SIX for damages outside of the two-year statute of limitations.
Under the FLSA, every action for unpaid overtime compensation or liquidated damages must be commenced within two years "after the cause of action accrued" unless the FLSA violation was "willful," in which case the action "may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). Plaintiffs filed their Complaint on August 9, 2017. (Doc. 1). Accordingly, the time period relevant to their claims begins on August 9, 2015 unless they can prove by a preponderance of the evidence that Lazer Spot and SIX willfully violated the FLSA, such that Plaintiffs are entitled to the Act's enhanced three-year period. See 29 U.S.C. § 255. Notably, Mosley's and Scott's claims against Lazer Spot are entirely barred, absent a showing of willfulness, by the applicable two-year statute of limitation because their employment with Lazer Spot ended in April 2015.
To establish a willful violation of the Act, Plaintiffs must prove that their employer violated the FLSA and that it "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Id. In this context, reckless disregard means the "failure to make adequate inquiry into whether conduct is in compliance with the Act." 5 C.F.R. § 551.104. "The standard for willfulness under the FLSA is quite high." Warner v. Walgreen Co., 2015 WL 2341937, at *8 (S.D. Fla. 2015) (granting summary judgment to employer on issue of willfulness in misclassification case). "The Eleventh Circuit is hesitant to find `willful' behavior . . . even when presented with strong evidence of an employer's violation of the FLSA." Saxton v. Young, 479 F.Supp.2d 1243, 1253 (N.D. Ala. 2007). "Neither negligence, nor even unreasonable conduct, is sufficient to prove willfulness." Ojeda-Sanchez v. Bland Farms, LLC, 499 F. App'x 897, 902-04 (11th Cir. 2012) (affirming holding that defendant did not willfully violate FLSA because defendant's "procedures demonstrated not only that it knew what its FLSA obligations were, but that it actively sought to ensure that they were met"). "Similarly, the mere fact that the employer knows the FLSA is `in the picture' is not dispositive of willfulness, and a mere lack of prudence is insufficient to support a finding of willfulness." Henderson v. Payless Shoes, 2006 WL 346467, at *7-8 (S.D. Ga. 2006) (holding that Plaintiff's duties were "at least sufficiently close to fitting within the criteria for the exemption" that defendant could not be found to have demonstrated reckless disregard for its obligations under the FLSA) (internal citations omitted).
The determination of willfulness is a "mixed question[] of fact and law," which must be submitted to a jury only where there is evidence from which "a reasonable jury" could find a willful violation. Ojeda-Sanchez, 499 F. App'x at 903; see also Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013). Courts in this district routinely grant summary judgment in cases with facts materially similar to those in this case. See, e.g., Sullivan v. PJ United, Inc., No. 7:13-cv-01275, 2018 U.S. Dist. LEXIS 143246, at *80 (N.D. Ala. July 19, 2018); Martin v. Coastal Floor Coverings, Inc., No. CV414-030, 2015 U.S. Dist. LEXIS 99780, at *6-12 (S.D. Ga. July 23, 2015); Saxton v. Young, 479 F.Supp.2d 1243, 1253-54 (N.D. Ala. 2007).
There is no evidence in this case from which a fact-finder could reasonably conclude that Lazer Spot or SIX willfully violated the FLSA. Lazer Spot has put forth undisputed evidence demonstrating that the Company routinely confirms whether the MCE applies to its drivers at each site through its pre-bid and quarterly analyses, and Lazer Spot only classifies drivers as exempt where its pre-bid analysis confirms that the application of the MCE at the site is legally proper and where its quarterly analyses continue to confirm that the application of the exemption is appropriate. (Doc. 150-20 at 6; Doc. 150-21 at 3). In fact, Lazer Spot classifies drivers as non-exempt, overtime-eligible employees at numerous locations where it operates because it has determined that the drivers' duties at those locations do not satisfy the MCE's requirements. (Doc. 150-21 at 3). During the entire period relevant to Plaintiffs' claims, Lazer Spot was represented by counsel experienced with the MCE who advised the Company on the exemption. (Doc. 150-20). SIX undertook measures to ensure it was complying the FLSA by reviewing the Motor Carrier Act exemption provision and Department of Labor guidance. (Doc. 152-3; Doc. 152-15 at 4). SIX also spoke with its drivers who previously worked for Lazer Spot and evaluated Mobile County maps which show the public nature of the roads the drivers travelled. (Id.; 152-1 at 6, 415-17). In addition, once certain SIX drivers raised a question about overtime, SIX's Assistant Site Supervisor called the Department of Labor and was assured by the DOL that the drivers were exempt. Moreover, most of SIX's drivers transport intermodal freight and SIX commonly reassigned drivers from the KC site to intermodal work, including former Plaintiffs in this action.
Plaintiffs have not presented evidence sufficient to support a jury finding of willfulness. Instead, they seek to avoid summary judgment on their willfulness claim based on their allegation that "Defendants did not get an opinion regarding spotters at the KC facility from the Department of Labor (DOL) before deciding not [to] pay Plaintiffs overtime, an attorney, nor an expert, rather relying on their own `pre-bid analysis.'" (Doc. 164 at 28).
Based on the undisputed facts presented by the parties, the Court concludes that Defendants did not violate the FLSA, willfully or otherwise, in classifying Plaintiffs as exempt employees. Even if Mosley and Scott could establish that they were misclassified, their claims against Lazer Spot would fail because they are time barred by the two-year statute of limitations. Likewise, Plaintiffs would be unable to recover damages from SIX outside of the two-year time period applicable to their claims.
IT IS THEREFORE ORDERED that Lazer Spot, Inc. and Lazer Spot Holdings Corp.'s Motion for Summary Judgment (Doc. 150), and Southern Intermodal Xpress, LLC's Motion for Summary Judgment (Doc. 151) are GRANTED.
