Combs v. Jaguar Energy Servs., LLC

• Decision Date: 17 May 2016
• Docket Number: Civil Action No. 1:15-cv-00815-REB-NYW
• Parties: Michael Combs, on behalf of himself and all others similarly situated, Plaintiff, v. Jaguar Energy Services, LLC, a Louisiana limited liability company, Defendant.
• Court: U.S. District Court — District of Colorado

187 F.Supp.3d 1258

Michael Combs, on behalf of himself and all others similarly situated, Plaintiff,

v.Jaguar Energy Services, LLC, a Louisiana limited liability company, Defendant.

Civil Action No. 1:15-cv-00815-REB-NYW

United States District Court, D. Colorado.

Signed May 17, 2016

Brian David Gonzales, Brian D. Gonzales, The Law Offices of, Fort Collins, CO, for Plaintiff.

Erich L. Bethke, Senn Visciano Canges, P.C., Denver, CO, Matthew L. Hoeg, Andrews Kurth, LLP, Houston, TX, for Defendant.

ORDER GRANTING DEFENDANT JAGUAR ENERGY SERVICES, LLC'S F.R.C.P. 56 MOTION FOR SUMMARY JUDGMENT

Blackburn, United States District Judge

The matter before me is Defendant Jaguar Energy Services, LLC's F.R.C.P. 56 Motion for Summary Judgment [#27],¹ filed January 14, 2016. I grant the motion.²

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. § 1332 (diversity of citizenship).

II. STANDARD OF REVIEW

Summary judgment is proper when 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) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ; Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir.1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ; Farthing , 39 F.3d at 1134.³

A party who does not have the burden of proof at trial must show the absence of a genuine dispute. Concrete Works of Colorado , Inc. v. City & County of Denver , 36 F.3d 1513, 1517 (10th Cir.1994), cert. denied , 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel . Department of Mental Health and Substance Abuse Services , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999).

III. ANALYSIS

This putative class action asserts a claim for unpaid overtime compensation allegedly due under the Colorado Minimum Wage Order Number 31 (the "Wage Order"), 7 C.C.R. 1103–1, promulgated under the Colorado Wage Act (the "CWA"), §§ 8–4–101 –8–4–123, C.R.S. Plaintiff seeks to represent a class of current and former oil field workers employed by defendant as "service supervisors," "service operators," and "helpers." (See Plf. Motion for Class Certification at 3 [#26], filed January 13, 2016.) Because the employees are exempt from the Wage Order, I grant the motion for summary judgment.⁴

The undisputed facts are as follows. Defendant provides flowback and well testing,⁵ as well as other products and services, to oil drilling companies with job sites located in Texas, Colorado, Louisiana, North Dakota, and Montana. Crews of three to five employees are assigned to each job. (Def. Motion App. , Schendel Aff. ¶¶ 3-4 at 1-2.) Each member of a particular crew is responsible for loading and transporting to the job site all the equipment, tools, and supplies required for the assigned job. (Id. ¶ 5 at 3.) Employees are "required ... to load the truck and trailers in such a way that they can be safely operated on the highways leading to the job sites." (Id. ¶ 6 at 4.) Crew members with valid driver's licenses take turns driving the truck and trailer to the job site; those who do not act as driver's helpers. (Id. ) Plaintiff served in all these capacities during his employment. (Id. )

Approximately 15% of the jobs assigned from the Colorado office each year require a crew to travel out of the state. (Id. )

Although any employee thus may be assigned to job sites outside Colorado (id. ), plaintiff himself never worked at out-of-state job sites or otherwise traveled outside of Colorado for a job (Plf. Resp. App. , Combs Decl. ¶ 3 at 1; see also Class Action Compl. ¶ 7 at 2 (averring plaintiff performed well services in at job sites in Adams and Weld Counties)).

The Wage Order requires, relevantly, that covered employees be paid time and one-half the regular rate of pay for any work in excess of 40 hours per week or 12 hours per day. 7 C.C.R. 1103–1 § 4. However, certain specifically enumerated categories of employees are exempt from the Wage Order. Defendant claims plaintiff and the class of employees he seeks to represent fall within the exemption for "interstate drivers, driver helpers, [and] loaders ... of motor carriers." Id. § 5.⁶ It is defendant's burden to prove "plainly and unmistakably" that a particular class of employees is exempt. Kennett v. Bayada Home Health Care, Inc. , 135 F.Supp.3d 1232, 1238 (D.Colo.2015) ; Chase v. Farmers Insurance Exchange , 129 P.3d 1011, 1014–15 (Colo.App.2004).

The terms "driver," "driver's helper," and "loader" are not defined by the Wage Order itself, and there appears to be no other statutory or caselaw authority which does so. Defendant maintains the court nevertheless may look to the definitions of these terms developed under Motor Carrier Act exemption (the "MCA exemption) to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 –219. Indeed, to the extent the relevant exemptions are coextensive, caselaw interpreting the MCA exemption can be instructive in divining the meaning of terms under the Wage Order. See Salazar v. Butterball, LLC , 2009 WL 6048979 at *15 (D.Colo. Dec. 3, 2009), adopted , 2010 WL 965353 (D.Colo. Mar. 15, 2010), aff'd , 644 F.3d 1130 (10th Cir.2011) ; Rutt v. Poudre Education Association , 151 P.3d 585, 590 (Colo.App.2006), rev'd on other grounds , 184 P.3d 65 (Colo.2008). Plaintiff counters, however, that the Wage Act exemption for drivers is narrower, and thus more protective, than the FLSA exemption. Although I cannot agree, it ultimately makes no difference in any event.

As plaintiff reads section 5 of the Wage Order, the exemption for "interstate drivers, driver helpers, [and] loaders ... of motor carriers" means that all these classifications of workers are exempt only if their work involves interstate travel. As a matter of statutory construction, this interpretation is erroneous. Accepted canons of statutory construction provide that "qualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or the spirit of the entire writing." Lockhart v. United States , ––– U.S. ––––, 136 S.Ct. 958, 962–63, 194 L.Ed.2d 48 (2016) (quoting Black's Law Dictionary 1532-33 (10th ed. 2014)). See also Murphy Exploration & Production Co. v. United States Department of the Interior , 252 F.3d 473, 483 (D.C.Cir.) (Rogers, J. dissenting) ("Ordinarily, adjectival modifiers are placed closest to the nouns they modify, and to avoid ambiguity or confusion, nouns that are not modified are set apart from nouns that are modified."), as modified on denial of reh'g , 270 F.3d 957 (D.C.Cir.2001). Thus here, because the word "interstate" immediately precedes only the term "drivers," in the list of exempted categories of employees, it modifies only that category of employees.⁷

This distinction is of little help to plaintiff in any event. As there is nothing to suggest the Wage Order's exemption applies only to drivers who travel exclusively out of state, it is comparable to the MCA exemption, which, although limited, inter alia , to employees engaged in activities affecting interstate commerce, see 29 C.F.R. § 782.2(a)(2), nevertheless applies regardless whether all employees actually travel interstate or whether interstate travel makes up a significant portion of the employer's business, Songer v. Dillon Resources, Inc. , 618 F.3d 467, 474 (5th Cir.2010) (citing Morris v. McComb , 332 U.S. 422, 433–36, 68 S.Ct. 131, 136–38, 92 L.Ed. 44 (1947) ). Plaintiff does not dispute defendant's evidence that any particular Colorado-based employee (to include plaintiff himself) could be called on to transport workers and equipment to job sites outside Colorado, or that about 15% of the Colorado district office's jobs in any given year are outside Colorado. (See Def. Motion App. , Schendel Aff. ¶ 6 at 4.) Accordingly, and regardless whether plaintiff himself ever traveled out of state, the fact that other employees whom he seeks to represent did so (and that he himself might have been called on to do so) brings him within the Wage Order's exemption for drivers.⁸

Moreover, there is no interstate limitation for workers classified as "driver's helpers" and "loaders." Here again, although these terms are not defined by the CWA, the Wage Order, or any authoritative Colorado source, they do have statutory definitions under the MCA exemption. Plaintiff acknowledges that his job duties included the "proper loading of his employer's motor vehicles so that they may be safely operated on the highways of the country," see 29 C.F.R. § 782.5 (definition of "loader"), and also required him "to ride on a motor vehicle when it is being operated in interstate or foreign commerce," 29 C.F.R. § 782.4(a) (definition of "driver's helper"). (See Def. Motion App. , Schendel Aff. ¶¶ 5-6 at 3-4.) Thus, plaintiff likewise qualifies as both a driver's helper and a loader, and concomitantly is exempt from the overtime provisions of the Wage Order. Defendant therefore is entitled to summary judgment.

IV. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That Defendant Jaguar Energy Services, LLC's F.R.C.P. 56 Motion for Summary Judgment [#27], filed January 14, 2016, is granted on the bases specified herein;

2. That plaintiff's putative class...