Altare v. Vertical Reality MFG, Inc.

Decision Date30 April 2021
Docket NumberCASE NO.: 1:19-cv-21496-GAYLES/OTAZO-REYES
PartiesWALTER ALTARE and all others similarly situated under 29 U.S.C. § 206(b), and YAMAURIS PULIDO, Plaintiffs, v. VERTICAL REALITY MFG, INC., a Florida Limited Liability Company, and KENNETH A. SHARKEY, individually, Defendants.
CourtU.S. District Court — Southern District of Florida

THIS CAUSE comes before the Court on Defendants Vertical Reality MFG, Inc. and Kenneth A. Sharkey's Motion for Summary Judgment (the "Motion") [ECF No. 74]. The Court has reviewed the Motion and the record, heard oral argument, and is otherwise fully advised. For the reasons that follow, the Motion is denied.


Plaintiffs Walter Altare ("Altare") and Yamauris Pulido ("Pulido") bring this action against Defendants Vertical Reality MFG, Inc. ("Vertical Reality") and Kenneth A. Sharkey ("Sharkey") (collectively "Defendants") for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and unjust enrichment. This Motion requires the Court to first determine whether Plaintiffs are independent contractors or Defendants' employees. If Plaintiffs are employees, the Court must then determine whether Plaintiffs are covered employees under the FLSA or exempt under the Motor Carrier Act (the "MCA"). To do so, the Court must analyze the nature of both Plaintiffs' and Defendants' activities.

I. The Parties
A. Defendants Vertical Reality MFG, Inc. and Kenneth A. Sharkey

Vertical Reality manufactures, sells, and distributes durable entertainment and amusement equipment used as attractions at public gatherings, such as fairs, festivals, and amusement parks. Vertical Reality manufactures the equipment at a facility in Miami, Florida, and sells the equipment throughout the United States and the world. The equipment is often bulky, can be over 15 feet in length when disassembled for transportation, and can weigh thousands of pounds. The equipment is typically 16 to 48 feet long and weighs between 500 and 16,000 pounds. Vertical Reality has several storage sites and yards throughout the United States, including Miami and Arizona.

Rather than outsource the equipment's transportation, Vertical Reality hired drivers to transport the equipment to buyers. Vertical Reality is registered with the United States Department of Transportation ("DOT") and has a DOT motor carrier identification number. Vertical Reality purchased a flatbed truck for drivers to transport the equipment.1 The flatbed truck has a gross vehicle weight2 of 33,000 pounds and requires a commercial driver's license ("CDL") to drive across state lines.

B. Plaintiffs Walter Altare and Yamauris Pulido
1. Plaintiff Walter Altare

Vertical Reality hired Altare as a driver and paid him as an independent contractor, though the parties dispute the nature of Altare's job duties.3 Compare [ECF No. 75 at 2-3 ¶ 9], with [ECF No. 82 at 2 ¶ 9]. Altare maintained a Class B CDL and was subject to DOT regulations, including scheduled drug tests and random drug and alcohol tests. Altare was responsible for assuring that he operated the vehicle in a safe manner and in accordance with DOT regulations. Altare made approximately 8 to 10 trips per year, with each trip potentially lasting 20 to 45 days and requiring him to make stops in various states.4 Altare typically spent eight months per year driving for Vertical Reality. However, Altare was not always available to work when Vertical Reality called with assignments and the parties dispute whether Defendants required Altare to wait at home for his next assignment or whether he chose to wait. Compare [ECF No. 75 at 6 ¶¶ 29 & 31], with [ECF No. 82 at 3-4 ¶¶ 29 & 31]. During some trips, Altare hired and paid additional labor to assist with the equipment being delivered.

2. Plaintiff Yamauris Pulido

Vertical Reality hired Pulido as a welder and driver and paid him as an independent contractor, though the parties dispute the nature of Pulido's job duties.5 Compare [ECF No. 75 at5 ¶ 24], with [ECF No. 82 at 3 ¶ 24]. Pulido maintained a Class B CDL and was subject to DOT regulations, including physical exams and drug tests every two years. Pulido was responsible for assuring that he operated the vehicle in a safe manner and in accordance with DOT regulations. Pulido could work as a welder or driver for other companies while being employed with Vertical Reality.6

II. Procedural History

On April 18, 2019, Altare filed a Complaint against Defendants for minimum wage and overtime violations under the FLSA, alleging that Defendants did not adequately compensate him for hours worked. [ECF No. 1]. On May 20, 2019, Defendants moved to dismiss the Complaint, [ECF No. 10], which the Court granted in part and denied in part on January 14, 2020, [ECF No. 41]. On January 28, 2020, Altare filed his Amended Complaint against Defendants, alleging: (1) overtime compensation violations under the FLSA (Counts I and II); (2) prompt pay violations under the FLSA (Counts III and IV); (3) misclassification of employee status pursuant to Florida Law (Counts V and VI); and (4) unjust enrichment (Count VII). [ECF No. 48]. On February 14, 2020, Defendants moved to dismiss Counts V and VI of the Amended Complaint, [ECF No. 55], which the Court granted on April 21, 2020, [ECF No. 79].

On March 31, 2020, Defendants filed the instant Motion, arguing that: (1) Plaintiffs were independent contractors and (2) even if they were employees, the motor carrier exemption bars Plaintiffs' overtime compensation claims under the FLSA. [ECF No. 74]. In response, Plaintiffs argue that: (1) they were Vertical Reality's employees and (2) Plaintiffs qualify for overtimecompensation under the FLSA because the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users Technical Corrections Act of 2008" (the "TCA") creates a "small vehicle" exception to the motor carrier exemption. [ECF No. 81]. On December 15, 2020, the Court heard oral argument on the Motion. [ECF No. 103].


Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment "is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam) (internal quotation marks omitted) (quoting Fed. R. Civ. P. 56(a)). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is "genuine" when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of her burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (citation omitted). A fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (citation omitted).

"Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted." Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 1122, 1138 (11th Cir. 2016) (citation omitted), vacated on other grounds, 2016 WL 11503064, at *1 (11th Cir. May 31, 2016). The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. SEC v. Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014) (per curiam).However, to prevail on a motion for summary judgment, "the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015). Furthermore, conclusory allegations will not create an issue of fact for trial sufficient to defeat a well-supported motion for summary judgment. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (citation omitted).

I. Whether Plaintiffs are Independent Contractors or Defendants' Employees

Plaintiffs argue that they are entitled to minimum wages and overtime compensation under the FLSA because they were Defendants' employees. Defendants argue that Plaintiffs are exempt from the FLSA's provisions because Plaintiffs were independent contractors. The Court finds that genuine issues of material fact remain as to whether Plaintiffs were employees or independent contractors.

A. Determining Employment Status under the FLSA

Under the FLSA, an "employer" is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S.C. § 203(d). An "employee" is defined as "any individual employed by an employer," with certain exceptions. Id. § 203(e)(1). To "employ" under the FLSA is "to suffer or permit to work." Id. § 203(g). "The FLSA applies to employees but does not apply to independent contractors." Altman v. Sterling Caterers, Inc., 879 F. Supp. 2d 1375, 1379 (S.D. Fla. 2012). Determining whether Plaintiffs were independent contractors or employees requires the Court to look past "the 'label' put on the relationship by the parties" and "look to the 'economic reality' of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence." Scantland v. JeffryKnight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013) (citations omitted); see also Beck v. Boce Grp., L.C., 391 F. Supp. 2d 1183, 1186 (S.D. Fla. 2005) ("In making this determination Courts must evaluate the economic realities of the individual case rather than rely upon traditional common law principles." (citation omitted)). Courts look to six factors to...

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