Polycarpe v. E&S Landscaping Serv., Inc.

• Decision Date: 03 November 2011
• Docket Number: No. 07–23223–CV–JLK.,07–23223–CV–JLK.
• Citation: 821 F.Supp.2d 1302
• Parties: Resias POLYCARPE and Reynold Sully and all others similarly situated, Plaintiffs, v. E & S LANDSCAPING SERVICE, INC. and Ernst Mayard, Defendants.
• Court: U.S. District Court — Southern District of Florida

821 F.Supp.2d 1302

Resias POLYCARPE and Reynold Sully and all others similarly situated, Plaintiffs,

v.E & S LANDSCAPING SERVICE, INC. and Ernst Mayard, Defendants.

No. 07–23223–CV–JLK.

United States District Court, S.D. Florida,Miami Division.

Nov. 3, 2011.

Jason Saul Remer, Matthew Stanley Weber, Remer & Georges–Pierre, Miami, FL, for Plaintiffs.

Chris Kleppin, Kristopher Walter Zinchiak, Glasser, Boreth, & Kleppin, Barry G. Feingold, Plantation, FL, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS TO ENTERPRISE COVERAGE AND LIMITING ISSUES AT TRIAL

JAMES LAWRENCE KING, District Judge.

THIS MATTER comes before the Court upon Plaintiffs' Motion for Summary Judgment as to Enterprise Coverage (DE # 60), filed September 6, 2011. Therein, Plaintiffs seek summary judgment on the issue of enterprise coverage under the Fair Labor Standards Act (“FLSA”) as relevant to this Court's subject matter jurisdiction. The Court is fully briefed in the matter.¹ Upon consideration of the record, the pleadings, and in light of the Eleventh Circuit Court of Appeals' decision Polycarpe v. E & S Landscaping Serv., Inc., 616 F.3d 1217 (11th Cir.2010), the Court finds it must grant the Motion.

I. Background

In 2007, the Plaintiffs, former employees of a landscaping company, filed a Complaint in the above-styled action seeking monetary damages under the Fair Labor Standards Act (“FLSA”). (DE # 1). Plaintiffs allege that Defendants' business is an enterprise under the FLSA.² (DE # 1, ¶ 7). In the initial action, this Court entered an Order Granting Defendants' Motion for Summary Judgment, finding that the Defendants' landscaping business did not qualify for enterprise coverage under the FLSA because the business was strictly local in nature. (DE # 24, at 5). Specifically, this Court rejected Plaintiffs' argument that locally-purchased office supplies, landscaping equipment, and tools qualified as “goods” that have moved in interstate commerce to satisfy enterprise coverage under the FLSA. Instead, this Court applied the “coming to rest” doctrine, holding that because Defendants purchased these materials at local retailers to be used in a local business, they did not move in interstate commerce to satisfy enterprise coverage. (DE # 24, at 5).

On appeal, the Eleventh Circuit Court of Appeals vacated this Court's Order Granting Defendants' Motion for Summary Judgment. Polycarpe v. E & S Landscaping Serv., Inc., 616 F.3d 1217 (11th Cir.2010). The Eleventh Circuit held that the application of the “coming to rest” doctrine was misguided, and remanded the above-styled action for this Court's re-evaluation of the enterprise coverage issue. Id. at 1228. The Eleventh Circuit mandated that “the district court will have to decide whether the items evidenced by Plaintiffs were produced in or moved interstate and, if so, whether enterprise coverage exists under the handling clause because those items count as ‘goods' (not subject to the ultimate-consumer exception) or as ‘materials.’ ” Id. at 1228–29.

On March 18, 2011, this Court entered an order re-opening the case. (DE # 44). After additional discovery into the enterprise coverage issue, Plaintiffs now move for summary judgment, arguing that the office supplies, trucks, landscaping equipment, and tools qualify as “materials” that have moved in commerce to satisfy enterprise coverage under the FLSA. (DE # 60, at 11–12).

A review of the record reveals that the following facts are undisputed. ³ (DE # 60; DE # 63). E & S Landscaping is a South Florida landscaping company. (DE # 12–1). The Plaintiffs' work for E & S Landscaping consisted of weeding, edging, leaf blowing, raking, and pulling weeds at different properties in South Florida. (Ernst Mayard Aff., DE # 12–1; June 3, 2008 Sully Dep., at 17, DE # 16–12). In the course of their employment, Plaintiffs used tools, such as lawnmowers, weed eaters, and trimmers. (June 3, 2008 Polycarpe Dep., at 25, DE # 16–11). Defendants owned around seven GMC trucks that were manufactured outside the state of Florida. (May 21, 2008 Ernst Mayard Dep., at 8–9, DE # 16–1). At least two employees of the Defendants used the GMC trucks to transport themselves and the landscaping equipment to the various job sites. (Aug. 8, 2011 Ernst Mayard Dep., at 10–11, 29, DE # 60–1; June 3, 2008 Polycarpe Dep., at 25, DE # 16–11; Def.'s Resp. to Pls.' 2d Req. for Admissions, No. 9; DE # 60–6, at 5).

II. Legal Standard

Summary judgment is appropriate where the pleadings and supporting materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.” Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548.

The moving party bears the burden of pointing to the part of the record that shows the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991) (holding that the nonmoving party must “come forward with significant, probative evidence demonstrating the existence of a triable issue of fact.”).

“Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts.” Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). On a motion for summary judgment, the court must view the evidence and resolve all inferences in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment. See id. at 252, 106 S.Ct. 2505. If the evidence offered by the nonmoving party is merely colorable or is not significantly probative, summary judgment is proper. See id. at 249–50, 106 S.Ct. 2505.

III. Analysis

An employer falls under the enterprise coverage provision of the FLSA if it 1) “has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and 2) has at least $500,000 of “annual gross volume of sales made or business done.” Polycarpe, 616 F.3d at 1220 (citing 29 U.S.C. § 203(s)(1)(A)). “If an employer ha[s] two or more workers engaged in commerce or the production of goods for commerce, the FLSA coverage extend[s] to all of the enterprise's employees.” Id. at 1220. The FLSA defines commerce as “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b) (2006).

In the above-styled action, it is uncontested that the Defendants' landscaping business grossed over $500,000 a year to satisfy the second prong of enterprise coverage. (May 21, 2008 Ernst Mayard Dep., at 34–35, DE # 16–1). Therefore, the only issue before this Court on Plaintiffs' Motion for Summary Judgment is whether, when reviewing the record in the light most favorable to the Defendants, the Plaintiffs have proven that the Defendants employed two or more employees who regularly and recurrently handled “goods” or “materials” that moved across state lines to satisfy the first prong of enterprise coverage.

Although it is sufficient that the tools and equipment qualify as either “goods” or “materials,” there is an important distinction between the labels. Id. at 1229 n. 17. “Goods” are subject to the ultimate-consumer exception, while “materials” are not. Id. at 1222. Under the ultimate-consumer exception, “goods” that are consumed by the employer do not satisfy enterprise coverage. Id.; 29 U.S.C.A. § 203(i) (2006). If the Court finds that the tools and equipment qualify as either “goods” (not subject to the ultimate-consumer exception) or “materials,” then the Court must determine whether the “goods” or “materials” moved in interstate commerce. In so determining, the Eleventh Circuit instructs that the court should look to where an item was produced, as opposed to where it was purchased. Polycarpe, 616 F.3d at 1221.

The FLSA defines “goods” as “goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof....” 29 U.S.C. § 203(i) (2006). The statute, however, provides no definition for “materials.” As a result, the Eleventh Circuit established a two-part framework to determine whether an item qualifies as a “material” under the FLSA. The first inquiry is “whether, in the context of its use, the item fits within the ordinary definition of ‘materials' under the FLSA.” Polycarpe, 616 F.3d at 1225–26. The Eleventh Circuit defines “materials” under the FLSA as “tools or other articles necessary for doing or making something.” Id. at 1223–24. The second inquiry is “whether the item is being used commercially in the employer's business.” Id. at 1225–26. Under this prong, the “materials” “must have a significant connection with the employer's commercial activity,” as opposed to a mere incidental use. Id. at 1226.

In Polycarpe, the Eleventh Circuit provided some insight into how a court should distinguish between “goods” and “materials,” emphasizing how a particular item...