KENNETH M. KARAS, District Judge:
Jorge Cruz ("Plaintiff") filed suit against AAA Carting and Rubbish Removal, Inc. ("AAA Carting") and Pasquale Cartalemi, Jr. ("Cartalemi") (collectively "Defendants"), alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for failure to pay time and half for overtime hours and for failure to pay minimum wage, as well as violations of the New York Labor Law ("NYLL"), § 650 et seq., for the same conduct and for failure to pay the appropriate rate for spread of hours and failure to issue accurate hours and wage statements when payroll was issued. Defendants move to dismiss Plaintiff's federal claims under Rule
The following facts are taken from Plaintiff's Complaint, and are presumed to be true for the purpose of Defendants' Rule 12 Motion. Plaintiff was employed by AAA Carting and its Chief Executive Officer, Cartalemi, from November 27, 2010 to November 27, 2012. (See Compl. ¶¶ 8-9, 14-15 (Dkt. No. 1).)
"When Plaintiff was first employed, he was paid $20.00 an hour," and in June 2012 "the rate was increased to $25.51 an hour." (Id. ¶ 24.) However, Plaintiff alleges that he "was never paid for hours worked in excess of forty (40) hours." (Id. ¶ 25.) Plaintiff alleges, by way of example, that he worked a 60-hour work week from June 3 to 9, 2012, in that he worked "on Monday, June 4, 2012, from 5:30 a.m. to 4:45 p.m.; Tuesday, June 5, 2012, from 5:30 a.m. to 6:00 p.m.; Wednesday, June 6, 2012, from 5:30 a.m. to 5:15 p.m.; Thursday, June 7, 2012, from 5:30 a.m. to 3:45 p.m.; Friday, June 8, 2012, from 5:30 a.m. to 3:45 p.m.; and Saturday, June 9, 2012, from 1:30 a.m. to 9:30 a.m.," but was only paid for 40 hours that week. (Id. ¶ 23.) Plaintiff further alleges that he "frequently worked in excess of ten (10) hours in a single work day," but was "never paid for spread-of-hours throughout his employment," and that he "was provided with statements of hours or wages which inaccurately reflected the number of hours worked." (Id. ¶¶ 28-29.)
Defendants have submitted materials outside of the pleadings in support of their Motion for Summary Judgment, most of which evidence Plaintiff either disputes or asserts, by his counsel's Rule 56(d) declaration, that he needs discovery in order to dispute. The evidence submitted outside of the pleadings addresses the following points: First, according to Defendants, Plaintiff's route "required that he drive the truck several times a week over the state line into Connecticut." (Decl. of Pasquale P. Cartalemi, Jr. in Supp. of Mot. To Dismiss for Lack of Subject Matter Jurisdiction and/or for Summ. J. ("Cartalemi Decl.") ¶ 22 (Dkt. No. 31); see also id.
Third, Defendants assert that the recycling and garbage often has ended up out of state. In particular, Defendants claim that construction and demolition ("C & D") debris was typically exported out of state, (Cartalemi Decl. ¶ 7), that the recyclables are shipped out of New York both to other states and internationally, (id. ¶ 10), that "[t]here are limited landfills in New York so the garbage is shipped out of the state," (id. ¶ 11), and that "it has always been [Cartalemi's] understanding and intent that the waste AAA Carting transported to transfer stations would thereafter be shipped out of the state" "[g]iven that AAA Carting's business started out, and operated for its first ten years, exclusively as a `roll-off' business where much of the C & D waste transported was shipped out of the state," (id.).
Finally, Defendants assert that the Department of Labor ("DOL") conducted a company-wide audit of AAA Carting and "issued a Compliance Action Report finding that the Motor Carrier Exemption applied to AAA Carting's employees because some of the waste or refuse transported by AAA Carting is shipped out-of-state or overseas," (Cartalemi Decl. ¶¶ 15-19), and states that "[d]rivers and helpers routinely pick up recyclables, construction debris, etc[.] that is sent out-of-state or overseas thus entitling the company to the Motor Carriers exemption 13(b)1," (id. Ex. C ("DOL Compliance Action Report"), at 2). Plaintiff responds that he requires discovery on whether the DOL Report only addressed the recycling and construction debris portion of the company, and also asserts that this Report is inadmissible hearsay. (Biggs Decl. ¶¶ 34-36.)
Plaintiff filed suit on November 27, 2013, (Dkt. No. 1), and Defendants answered the Complaint on April 17, 2014, (Dkt. No. 11). On June 6, 2014, the Court held a pre-motion conference, and set a scheduling order for the submission of Defendants' motion. (Dkt. (minute entry for June 6, 2014); Dkt. No. 20.) Thereafter, Defendants filed their Motion and accompanying papers, (Dkt. Nos. 29-33), Plaintiff filed his Opposition, (Dkt. Nos. 34-37), and Defendants filed their Reply, (Dkt. Nos. 38-39). Discovery has been stayed pending resolution of the question of whether the Court has subject matter jurisdiction over this case. (See Pl. Jorge Cruz's Mem. of Law in Opp'n to Defs.' Mot To Dismiss, for Judgment on the Pleadings and/or for Summ. J. ("Pl.'s Mem.") 9 (Dkt. No. 36); Biggs Decl. ¶ 3.)
Defendants move for judgment on the pleadings (1) pursuant to Rule 12(c) and Rule 12(h)(3), claiming that the Court lacks subject matter jurisdiction, and (2) pursuant to Rule 12(c), claiming that Plaintiff has not adequately pleaded a minimum wage violation.
First, Defendants move for judgment on the pleadings under Rule 12(c) and Rule 12(h)(3), arguing that Plaintiff falls into the FLSA's motor carrier exemption and therefore that the Court does not have subject matter jurisdiction over his claims.
"Where a Rule 12(c) motion asserts that a court lacks subject matter jurisdiction, the motion is governed by the same standard that applies to a Rule 12(b)(1) motion." Xu v. City of New York, No. 08-CV-11339, 2010 WL 3060815, at *2 n. 2 (S.D.N.Y. Aug. 3, 2010); see also S.E.C. v. Rorech, 673 F.Supp.2d 217, 220 (S.D.N.Y.2009) ("The standards to be applied to a motion for judgment on the pleadings pursuant to Rule 12(c) are the same as those applied to a motion to dismiss pursuant to Rule 12(b)."). On a motion to dismiss pursuant to Rule 12(b)(1), a court must dismiss a claim if it "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Additionally, the difference between a motion made under Rule 12(b)(1) and one made under Rule 12(h)(3) "is largely academic, and the same standards are applicable to both types of motions." Greystone Bank v. Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court "`must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,'" Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but "`jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,'" id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court. . . may refer to evidence outside the pleadings.").
Addressing first the issue of subject matter jurisdiction, 28 U.S.C. § 1331 provides that "[t]he district courts . . . have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Plaintiff asserts that, because he brings claims under the FLSA, the Court has federal question jurisdiction over his federal claims and has supplemental jurisdiction over his state law claims. (See Pl.'s Mem. 5.) Defendants, conversely, argue that the motor carrier exemption to the FLSA exempts
The Supreme Court has held that "[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue," "[b]ut when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (footnote omitted). The jurisdictional grant of the FLSA provides: "An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). This provision clearly does not indicate that Congress intended for the statutory limitation at issue here—the motor carrier exemption—to be jurisdictional. See Jackson v. Maui Sands Resort, Inc., No. 08-CV-2972, 2009 WL 7732251, at *2 (N.D.Ohio Sept. 8, 2009) ("[T]he [c]ourt is unable to ascertain . . . how this language [in the statutory grant of jurisdiction] might be construed to show that Congress clearly intended to deprive the courts of jurisdiction where a defendant employer qualifies for an exemption under the FLSA.").
In support of their argument that the motor carrier exemption is jurisdictional, Defendants cite one, pre-Arbaugh, case, Cariani v. D.L.C. Limousine Service, Inc., 363 F.Supp.2d 637 (S.D.N.Y.2005). In that case, the court ruled that because either the motor carrier exemption to the FLSA or the taxicab exemption to the FLSA applied, the "court lack[ed] subject matter jurisdiction over the plaintiff's federal claim." Id. at 649. However, the court in that case decided the issue on a Rule 12(b)(1) motion "without addressing the jurisdiction-merits distinction and after allowing further discovery on the exemption issues." Casares v. Henry Limousine Ltd., No. 09-CV-458, 2009 WL 3398209, at *1 (S.D.N.Y. Oct. 21, 2009) (discussing Cariani); see also Saca v. Dav-El Reservation Sys., Inc., 600 F.Supp.2d 483, 485 (E.D.N.Y.2009) ("The district court in Cariani. . . assumed without any explicit analysis that the FLSA exemption issue went to the court's jurisdiction over the controversy rather than the merits thereof."). Moreover, as Plaintiff notes, this reasoning has not been followed by other courts in the Second Circuit, which have held that whether an employer fits into an FLSA exemption goes to the merits of the claim, not to the Court's jurisdiction. See Benitez v. F & V Car Wash, Inc., No. 11-CV-1857, 2012 WL 1414879, at *1 (E.D.N.Y. Apr. 24, 2012) ("[A]fter review of recent case law in [the Second] Circuit, the court concurs with [the] [p]laintiffs and concludes that the question of whether a defendant qualifies as an enterprise under the FLSA is not a jurisdictional issue, but an element that a plaintiff must establish in order to prove liability."); Casares, 2009 WL 3398209, at *1 (noting that there is "substantial authority that a Rule 12(b)(1) motion for lack of subject matter jurisdiction is not the appropriate procedural device for defendants to assert exemptions to the FLSA" and collecting cases); Fox v. Commonwealth Worldwide Chauffeured Transp. of N.Y., LLC, No. 08-CV-1686, 2009 WL 1813230, at *2 (E.D.N.Y. June
Moreover, while "[i]t is true that courts sometimes refer to the plaintiff's obligation to prove a defendant's covered status as `jurisdictional,'" the term is "overused" and "one that is often used without explicit consideration of whether the court's authority to adjudicate the type of controversy involved in the action is really at stake." Velez, 203 F.Supp.2d at 330 (some internal quotation marks omitted). Indeed, as recognized by the Second Circuit in Da Silva v. Kinsho International Corporation, 229 F.3d 358 (2d Cir.2000), "[w]hether a disputed matter concerns jurisdiction or the merits (or occasionally both) is sometimes a close question," and "[c]ourt decisions often obscure the issue by stating that the court is dismissing `for lack of jurisdiction' when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim." Id. at 361. Therefore, given that the vast majority of the courts in the Second Circuit have held that the issue of whether an employer falls into an FLSA exemption is a merits question and not a jurisdictional threshold, and in light of the Supreme Court's ruling that a limitation on a statute's scope should be considered jurisdictional only when the statute "clearly states" that it should be so considered, Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235, the Court denies Defendants' Motion to dismiss for lack of subject matter jurisdiction.
Next, Defendants move for judgment on the pleadings under Rule 12(c) with respect to Plaintiff's claim that he was not paid minimum wage under the FLSA for hours he worked in excess of 40 hours a week.
"The standard of review on a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same standard of review applied to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)." Marte v. Safety Bldg. Cleaning Corp., No. 08-CV-1233, 2009 WL 2827976, at *1 (S.D.N.Y. Sept. 2, 2009). With respect to Rule 12(b)(6) motions, the Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the `grounds' of his [or her] `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (citations omitted). Instead, the Supreme Court has emphasized that "[f]actual allegations must be
For the purposes of a motion for judgment on the pleadings, as with a motion to dismiss under 12(b)(6), the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (italics and internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008) (same). In deciding a motion for judgment on the pleadings, as with a motion to dismiss, "a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted) (applying standard to a Rule 12(b)(6) motion); see also Smith v. City of New York, No. 13-CV-2395, 2014 WL 4904557, at *3 (E.D.N.Y. Sept. 30, 2014) ("When deciding a motion on the pleadings, the court must confine its consideration to the pleadings and their attachments, to documents . . . incorporated in the complaint by reference, and to matters of which judicial notice may be taken" (alteration in original) (internal quotation marks omitted)).
Plaintiff claims that because he alleges that he was paid nothing for hours worked in excess of 40 hours a week, he was not paid minimum wage under the FLSA. (Pl.'s Mem. 3-4, 24-25.) However, this argument fails. While Plaintiff may state a claim for a failure to pay overtime for the hours worked in excess of 40 hours a week, he does not necessarily state a claim for failure to pay minimum wage for those hours, because "[a]n employee cannot state a claim for a minimum wage violation `unless [his] average hourly wage falls below the federal minimum wage.'" Johnson v. Equinox Holdings, Inc., No. 13-CV-6313, 2014 WL 3058438, at *3 (S.D.N.Y. July 2, 2014) (alteration in original) (emphasis added) (quoting Lundy v. Catholic Health Sys. of Long Is. Inc., 711 F.3d 106, 115 (2d Cir.2013)). An employee's average hourly wage is calculated "by dividing his total remuneration for employment. . . in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid." 29 C.F.R. § 778.109. "For minimum-wage recovery under the FLSA, the pertinent question is whether `the amount of compensation received by an
Here, Plaintiff alleges that when he was first employed, he was paid $20.00 an hour, and that his pay rate was increased to $25.51 an hour in June 2012. (Compl. ¶ 24.) He also alleges that one week in June 2012 he worked a 60-hour work week, and that he frequently worked in excess of 10 hours per day. (Id. ¶¶ 23, 28.) Furthermore, he alleges that he was not paid for the hours he worked in excess of 40 hours a week. (Id. ¶ 25.) However, as per Plaintiff's allegations, he was paid for 40 hours a week at a rate of either $20.00 or $25.51 an hour, for a weekly salary of either $800 or $1,020.40 per week. The most Plaintiff alleges that he worked in a week is 60 hours. Thus, assuming Plaintiff's allegations to be true, he was paid a minimum of either $13.33 or $17.01 an hour for actual hours worked, either of which rates is above the federal and state minimum wages. See Mendoza v. Little Luke, Inc., No. 14-CV-3416, 2015 WL 998215, at *5 (E.D.N.Y. Mar. 6, 2015) (noting that federal minimum wage under the FLSA is currently $7.25 an hour and New York minimum wage under the NYLL is $8.75 an hour).
Summary judgment shall be granted where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court's goal should be "`to isolate and dispose of factually unsupported claims.'" Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
"If the party opposing a summary judgment motion shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may deny the motion or allow time to take discovery." Walden v. Sanitation Salvage Corp., No. 14-CV-112, 2015 WL 1433353, at *2 (S.D.N.Y. Mar. 30, 2015); see also Fed.R.Civ.P. 56(d) ("If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order."). "The affidavit or declaration must describe: (1) what facts are sought and how they are to be obtained, (2) how such facts are reasonably
The FLSA applies generally to "employees engaged in interstate commerce." Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also exempted classes of employees from its wage protections. "Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions." Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010) (footnote omitted). Moreover, an employer bears the burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) ("The employer has the burden of proving that the employee clearly falls within the terms of the exemption."); Clarke v. JP Morgan Chase Bank, N.A., No. 08-CV-2400, 2010 WL 1379778, at *15 (S.D.N.Y. Mar. 26, 2010) (same); Franklin v. Breton Int'l, Inc., No. 06-CV-4877, 2006 WL 3591949, at *2 (S.D.N.Y. Dec. 11, 2006) (same).
Defendants argue that they are exempt from paying Plaintiff in accordance with the FLSA because Plaintiff fits into one of the FLSA's exemptions: the motor carrier exemption. This exemption has its roots in a desire for uniformity in regulation. See Dauphin, 544 F.Supp.2d at 271 ("The purpose of [the motor carrier] exemption is to prevent conflict between the FLSA and the Motor Carrier Act."). So as to not subject employers to the possibility of overlapping or inconsistent statutory requirements, the FLSA provides that it does not apply to "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49," which is the Motor Carrier Act (the "MCA"). 29 U.S.C. § 213(b)(1); see also Bilyou v. Dutchess Beer Distrib., Inc., 300 F.3d 217, 222-23 (2d Cir.2002) (same). "Section 31502 grants the Secretary [of Transportation] the authority to prescribe qualifications and maximum hours of service of employees of a motor carrier [or motor private carrier]. This grant of authority applies to transportation by motor carrier [or motor private carrier] of property in interstate or foreign commerce on a public highway." Walden, 2015 WL
First, Defendant AAA Carting must be operating as a motor carrier or as a motor private carrier as defined by the MCA for the motor carrier exemption to apply. Under the MCA, a motor carrier is defined as a person "providing motor vehicle transportation for compensation." 49 U.S.C. § 13102(14).
Second, the employee must engage in activities directly affecting safety. Here, there is no dispute that Plaintiff was employed as a driver. (See Cruz Decl. ¶ 3 ("I drove a garbage truck that collected household waste."); id. ¶ 5 ("I only collected and drove household waste"); Cartalemi Decl. ¶ 21 ("Plaintiff was employed by AAA Carting as a garbage truck driver. . . ."); Compl. ¶ 16 ("Plaintiff's duties included driving a garbage truck. . . .").) Nothing in Plaintiff's counsel's declaration suggests that discovery would yield information that Plaintiff was involved in anything other than driving. And it is well established that driving is an activity that directly affects safety. See Morris v. McComb, 332 U.S. 422, 430, 68 S.Ct. 131, 92 L.Ed. 44 (1947) ("The drivers are full-time drivers of motor vehicles well within the definition of that class of work by the Commission if the work is done in interstate commerce."); Walden, 2015 WL 1433353, at *3, *6 ("The four broad categories of workers whose duties are said to directly affect the safety of vehicle operation are: (1) drivers, (2) mechanics, (3) loaders, and (4) helpers of the first three,. . . [and] [t]he case law regarding the motor carrier exemption's application to drivers is well-established."); McBeth v. Gabrielli Truck Sales, Ltd., 768 F.Supp.2d 383, 390 (E.D.N.Y.2010) ("The Department of Labor interprets the motor carrier exemption to apply to drivers, driver's helpers, loaders, or mechanics whose work directly affects the safety of operation of vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the MCA." (citing 29 C.F.R. § 782.2(b)(2)(i)(ii))); Dauphin, 544 F.Supp.2d at 274 ("The activities of drivers affect safety of operations of motor vehicles. . . .").
The final requirement—and the only one that Plaintiff contests—is the interstate commerce requirement, which requires that Plaintiff must affect the safety of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce. There are two general methods of establishing sufficient involvement in interstate commerce. First, the exemption will apply if interstate travel is a "natural, integral, and inseparable part of the employee['s] duties." See Williams v. Tri-State Biodiesel, LLC, No. 13-CV-5041, 2015 WL 305362, at *7 (S.D.N.Y. Jan. 23, 2015) (alterations and internal quotation marks omitted). Second, even if an employee transports the goods wholly intrastate, the exemption may apply if the goods "are involved in a practical continuity of movement in the flow of interstate commerce." Bilyou, 300 F.3d at 223 (internal quotation marks omitted). The Court will address whether the undisputed evidence is sufficient to bring Plaintiff within either of these categories such that summary judgment is appropriate, even without discovery.
First, it is undisputed that Plaintiff, at the very least, drove out of state for forty-five seconds once a month as part of his duties. (See Cruz Decl. ¶ 19 (admitting that he "did drive on King Street, which crosses into Connecticut for forty-five seconds to reach a portion of his route . . . once per month," but stating that he "did not collect any waste in Connecticut"); see also Cartalemi Decl. ¶ 22; id. Ex. E (Google Maps screenshots showing Plaintiff's
Furthermore, while some courts, including courts within the Second Circuit, have suggested that "an employer's mere showing that an employee engages in more than de minimis interstate activity would be sufficient to invoke the motor carrier exemption," the "`more than de minimis test' has received only sporadic support in case law." Williams, 2015 WL 305362, at *13 (italics omitted). "And given that the origin of the de minimis exception—traceable
Instead of concluding either that because Plaintiff occasionally drove interstate he falls under the exemption or that because Plaintiff's interstate travel constituted a small percentage of his employment activity he does not, the Court instead is to conduct a "fact-specific analysis" to determine the "character of interstate driving . . ., including an examination of the method by which the employer assigns the interstate activity to the pertinent class of employees, the nature of the employer's business, and perhaps to a lesser degree, the proportion of interstate-to-intrastate employee activity." Masson, 2005 WL 2000133, at *9 (internal quotation marks omitted). The origin of this test is found in Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947). In Morris, the Supreme Court considered whether a group of employees who spent about 4% of their time driving in interstate commerce fell within the MCA. Id. at 431, 68 S.Ct. 131. Reasoning that "it is the character of the activities rather than the proportion of either the employee's time or of his activities that determines the actual need for" regulation under the MCA, the Supreme Court considered how the interstate trips were assigned among employees, ultimately concluding that the brief interstate trips were "a natural, integral[,] and apparently inseparable part" of the employees' employment. Id. at 431-33, 68 S.Ct. 131 (internal quotation marks omitted).
Here, according to Defendants, "many of AAA Carting's . . . employees regularly travel into Connecticut." (Cartalemi Decl. ¶ 13; see also id. ¶ 12 ("Many employees of AAA Carting regularly travel across state lines as part of their job duties.").) Additionally, Defendants assert that "[e]mployees whose duties includ[ed] traveling across state lines would sometimes be absent from work due to vacation, sick leave or for personal reasons," and "[d]uring such absences, it would be necessary for
Finally, Defendants argue that the goods transported are involved in a practical continuity of movement in the flow of interstate commerce and thus, even if Plaintiff transports the goods wholly intrastate, the exemption still applies. (See Defs.' Mem. 14-15.) See also Bilyou, 300 F.3d at 223 (explaining this basis for the exemption). "Whether the transportation is of an interstate nature can be determined by reference to the intended final destination of the transportation when that ultimate destination was envisaged at the time the transportation commenced." Id. at 223-24 (internal quotation marks omitted). "If the shipper's fixed and persisting transportation intent at the time of interstate shipment was to deliver an item to a specified customer who had ordered the item, regardless of whether it was stored temporarily intrastate, the motor carrier exemption applies. On the other hand, the exemption does not apply where items are delivered from out of state to an intrastate location, such as a warehouse, for future delivery to customers yet to be identified. In other words, the exemption is inapplicable where the final destination of any shipment is not decided until after the goods had come to rest in the warehouse." Masson, 2005 WL 2000133, at *6 (alteration, citations, and internal quotation marks omitted). Defendants assert generally that the recycling and garbage often has ended up out of state. In particular, Defendants
For the above reasons, Defendants' Motion for Judgment on the Pleadings is granted in part and denied in part. In particular, Defendants' Motion based on Plaintiff's FLSA minimum wage violation claim is granted, but their Motion based on lack of subject matter jurisdiction is denied. Defendants' Motion for Summary Judgment is denied without prejudice to renewal at the close of discovery. The Clerk of the Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 29.)
SO ORDERED.