Cariani v. D.L.C. Limousine Service, Inc.

• Decision Date: 29 March 2005
• Docket Number: No. 03 CIV. 8383(CM).,03 CIV. 8383(CM).
• Citation: 363 F.Supp.2d 637
• Parties: Enzo CARIANI, Plaintiff, v. D.L.C. LIMOUSINE SERVICE, INC. Defendant.
• Court: U.S. District Court — Southern District of New York

363 F.Supp.2d 637

Enzo CARIANI, Plaintiff, v. D.L.C. LIMOUSINE SERVICE, INC. Defendant.

No. 03 CIV. 8383(CM).

United States District Court, S.D. New York.

March 29, 2005.

Robert David Goodstein, Goodstein & West, Esqs., New Rochelle, NY, for Plaintiff.

Jeffrey I. Carton, Meiselman, Farber, Packman & Eberz, P.C., White Plains, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

MCMAHON, District Judge.

The instant cross-motions for summary judgment present what appears (surprisingly) to be an issue of first impression in this Circuit: whether car services similar to those that thousands of customers — including every major law firm in the metropolitan area — use in lieu of cruising, metered taxicabs for local transportation are required to pay time and a half to their drivers after forty hours of work each week, or whether they are statutorily exempt from the maximum hours rule enshrined in the Fair Labor Standards Act ("F.L.S.A."), 29 U.S.C. § 207, for either of two reasons.

Plaintiff is a driver who was employed by defendant D.L.C. Limousine Service, Inc. ("D.L.C.") from October 23, 2000 to September 19, 2003. D.L.C. runs a car or limousine service out of a location at the Westchester County Airport. Plaintiff alleges that he earned $7.00 per hour plus commissions of between nine and ten percent. He further alleges that he worked more than forty hours per week but was not paid overtime wages for the hours over forty he worked.¹

D.L.C. asserts that it is a taxicab operator, and as such is entitled to the benefit of a statutory exemption from the maximum hours rule of § 207. Section 213(b)(17) of the F.L.S.A. provides that § 207 "shall not apply with respect to ... (1) any driver employed by an employer engaged in the business of operating taxicabs." Alternatively, defendant contends that — if it is not operating taxicabs — it is nonetheless exempt under Section 213(b)(1), which provides that the F.L.S.A. 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" (the so-called "motor carrier exemption" to the F.L.S.A.). Defendant insists that it is entitled to either one exemption or the other, and thus that the complaint must be dismissed for lack of subject matter jurisdiction.

Plaintiff insists that D.L.C. is not a bona fide taxi service, but something else — a limousine company — and is thus not comprehended within the statutory "taxicab" exemption. Plaintiff argues, however, that defendant is not entitled to the benefit of the motor carrier exemption, either. It opposes the motion to dismiss and seeks summary judgment in its favor on the issue of liability.

The F.L.S.A. does not define the term "taxicab" or "taxicab operator." The Revised Interstate Commerce Act ("R.I.C.A.") — formerly the Motor Carrier Act — does not define the term "bona fide taxicab service," which — as will be seen — comes into play in analyzing the motor carrier exemption. And it appears that there is scant case law on the subject — much of it ancient, none of it emanating from this Circuit.

One thing is clear: whether D.L.C. is in the "business of operating a taxicab" or runs a "bona fide taxicab service" depends on certain key facts. It is thus necessary, before analyzing this issue, to set forth the undisputed facts concerning the business of D.L.C.

The Facts

The following facts — submitted by defendant in support of its motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and properly considered by the Court on such a motion² — are not disputed by plaintiff.

D.L.C. has been in operation in Westchester County since at least the early 1980s. At that time, Westchester County granted D.L.C. a permit to conduct a taxi/limousine service out of leased premises at the Westchester County Airport. The record contains a copy of a 1989 agreement between D.L.C. and the County and a copy of a 2001 agreement between the same parties, which is apparently the most recent such agreement. In each document, the County grants D.L.C. a license (or in the earlier document, a permit) to use space in the Airport: 160 square feet in the 2001 agreement, plus 1200 square feet for curbside parking and 2800 square feet for a vehicle staging area. D.L.C. is permitted to use the Licensed Premises "for the operation of a first class full-service taxi/limousine service for the convenience of travelers, airport users, and the general public." (Reply Affidavit of Chris Thornton, dated January 16, 2004, Ex. H, Sec. 1.2 ("Thornton Reply Aff.").) The 1989 agreement obligated D.L.C. to "conduct taxi and limousine services" at the airport. (Affidavit of Chris Thornton, dated December 18, 2003, Ex. B ("Thornton Aff.").)

D.L.C. maintains a fleet of seven cars. Six of those cars are standard five passenger vehicles (the five passengers includes the driver). D.L.C. also has one Town Car, for which it charges higher rates. The cars are dispatched both directly from the Airport or by telephone when a customer calls to arrange service. None of the cars is metered or has the familiar taxi "vacancy" light on top.

D.L.C. hired drivers who are licensed by the Westchester County Taxi and Limousine Commission, which is charged with regulating the for-hire vehicle industry in Westchester County. Plaintiff was a duly licensed driver.

D.L.C. provides transportation to airports in New York, New Jersey and Connecticut. It operates within a radius of approximately 100 miles from the Westchester County Airport. It does not run fixed routes or have any pre-determined time schedule; its cars are available to go where customers wish when they wish. All cars are either contracted at the airport or radio-dispatched; none of the seven cars in defendant's fleet cruises the streets for passengers.

D.L.C. is required, by the terms of its contract with Westchester County, to engage in an advertising program. (Thornton Reply Aff., Ex. H, Schedule B.) The program requires it to place listings annually in the NYNEX Yellow Pages under the headings "Airport Transportation Services" and "Limousine Services," as well as to place advertisements in local community "Blue Books" in Northern Westchester (as far south as White Plains) and Fairfield County, Connecticut (as far east at Westport and as far north as Ridgefield). D.L.C. is also required to place fliers in local hotels, advertising "ground transportation." Defendant's exhibits do not include any of its advertisements. A glance at the Verizon Yellow Pages for Westchester County reveals that D.L.C. is advertised under "Airport Transportation," but not under "Limousine Service" or "Taxicab."³

D.L.C.'s drivers are not allowed to cruise for passengers when they are not otherwise engaged. However, a driver is free to "use initiative to secure patronage by providing high quality service in exchange for tips," which I gather means that the drivers can obtain regular customers. (Defendant's Reply Mem. at 9.)

Arriving passengers can use the services of D.L.C. to transport them from the airport to their destinations. In addition, the general public can call D.L.C. to obtain point to point transportation within Westchester County or to adjacent regions.

D.L.C. maintains a schedule of fares to various locations. As noted above, there is a separate fare schedule for the use of the Town Car. Fares are a function of the distance from the airport. It does not post the schedule in its cars, but does post it at its dispatch location at the Airport and announces them over the telephone when customers call in for service.

D.L.C.'s only contractual arrangement is with Westchester County. It does not have any contractual arrangement with any airline or other carrier or with any customer.

Finally, D.L.C. is regulated by the Westchester County Taxi and Limousine Commission ("WCTLC"), but not as a taxicab operator.

The Westchester County Legislature has created the WCTLC by statute, (Affirmation of Robert David Goodstein, dated March 17, 2005, Ex. 4), and has ceded to that regulatory body the power to regulate the provision of taxi and limousine service within Westchester County. According to the data supplied by plaintiff with the Goodstein Affirmation, D.L.C. holds one license from the WCTLC. It is a "For Hire Base Station Permit" from the WCTLC. (Goodstein Aff. Ex. 2 and Thornton EBT at 9-10.) Pursuant to the Rules and Regulations of the WCTLC, a "base station is a central facility, which dispatches affiliated vehicles licensed by [the Taxi and Limousine Commission]." (Goodstein Aff. Ex. 3 at page 4 of 54 (emphasis added).) According to Thornton, D.L.C. maintained what he called "for hire vehicles" that were "attached to the base station." (Thornton EBT at 14.) The record also reveals that D.L.C.'s vehicle permits are not taxi permits, but rather are "for hire" vehicle permits, which are "permit[s] issued by WCTLC to the owner of a for-hire vehicle to allow such vehicle to be dispatched by a base station." (Goodstein Aff. Ex. 3 at 4 of 54). Most significantly, the definition of a "for hire vehicle" expressly excluded taxicabs. "A for-hire vehicle is any motor vehicle used to transport less than twenty (20) passengers who will be charged for such transportation. Taxicabs ... are excluded from this definition." (Id.)

A "taxicab," by contrast, is separately defined and regulated by the WCTLC. The term "taxicab" was at all relevant times defined as "a motor vehicle ... that carries no more than five passengers who will be charged for such transportation and which is licensed as a taxicab by either a local municipality within Westchester County or by the WCTLC." (Id. at 5.)⁴ It is undisputed that none of D.L.C.'s vehicles has ever been licensed as a taxicab either by the County of Westchester of by any municipality within the...