Corman v. JWS of N.M., Inc.

• Decision Date: 14 November 2018
• Docket Number: No. CIV 15-0913 JB\SMV,CIV 15-0913 JB\SMV
• Parties: Richard CORMAN, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff, v. JWS OF NEW MEXICO, INC., and K.P. Kauffman Company, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

356 F.Supp.3d 1148

Richard CORMAN, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiff,

v.JWS OF NEW MEXICO, INC., and K.P. Kauffman Company, Inc., Defendants.

No. CIV 15-0913 JB\SMV

United States District Court, D. New Mexico.

Filed November 14, 2018

Brandt P. Milstein, Milstein Law Office, Boulder, Colorado, Attorney for the Plaintiffs.

Little V. West, Holland & Hart, LLP, Santa Fe, New Mexico and Jeffrey T. Johnson, Bradford, J. Williamson, Holland & Hart, LLP, Denver, Colorado, Attorneys for the Defendants.

MEMORANDUM OPINION ¹

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendants JWS's and KPK's Motion for Partial Summary Judgment, filed June 17, 2016 (Doc. 39)("MSJ"); and (ii) the Plaintiff's Cross Motion for Partial Summary Judgment on Defendants' Exemption Defense, filed June 17, 2016 (Doc. 41)("Cross MSJ"). The Court held a hearing on July 20, 2016. The primary issues are: (i) whether Defendants JWS of New Mexico, Inc. and K.P. Kauffman Company, Inc. (collectively, "the Defendants") are entitled to summary judgment on the Second Claim of the Collective Action Complaint for Unpaid Overtime Wages, filed October 12, 2015 (Doc. 1)("Complaint"), which alleges that the Defendants failed to pay Plaintiff Richard Corman and the proposed class members, all former JWS New Mexico truck drivers, overtime wages in violation of the New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-22(D) ("NMMWA"), on the grounds that Corman and the Class ("the Plaintiffs") were exempt from the NMMWA's overtime pay requirements under NMMWA § 50-4-21(C)(5); and (ii) whether, alternatively, the Plaintiffs are entitled to summary judgment on JWS New Mexico's and Kauffman Co.'s asserted exemption defense, because the Defendants are liable for unpaid overtime wages. After carefully reviewing the record, the Court concludes that because JWS New Mexico compensated the Plaintiffs on a commission basis, NMMWA § 50-4-21(C)(5) overtime pay requirements do not apply to the Plaintiffs. The Court concludes that JWS New Mexico and Kauffman Co. are entitled to summary judgment on the Complaint, and the Plaintiffs are not entitled to summary judgment on the Defendants' exemption defense. The Court grants the MSJ and denies the Cross MSJ.

FACTUAL BACKGROUND ²

The Court draws the factual background from the parties' undisputed material facts in the MSJ; Plaintiff's Memorandum in Support of His Cross Motion for Partial Summary Judgment on Defendants' Exemption Defense, filed June 17, 2016 (Doc. 41-1)("Cross Memo."); and Defendants JWS' and KPK's Response to Plaintiff's Cross Motion for Partial Summary Judgment, filed July 1, 2016 (Doc. 46)("Cross MSJ Response").

JWS New Mexico offers oilfield services to oil production companies in southeast New Mexico. See Cross Memo. ¶ 1, at 4 (asserting this fact)(citing Complaint ¶ 12, at 3); Answer ¶ 12, at 3, filed December 18, 2015 (Doc. 23).³ JWS New Mexico is a wholly-owned subsidiary of Kauffmann Co. See Cross Memo. ¶ 2, at 4 (asserting this fact)(citing Complaint ¶ 11, at 2; Answer ¶ 11, at 3).⁴

Corman and the other Plaintiffs drove trucks for JWS New Mexico; Corman drove for JWS New Mexico from July 20, 2011, to April 6, 2015. See Cross Memo. ¶ 3, at 4 (asserting this fact)(citing Deposition of Richard Corman at 7:23-8:7 (taken May 3, 2016), filed June 17, 2016 (Doc. 41-2)("Corman Depo."). The Plaintiffs hauled water products to oil drilling rigs and removed waste products, such as mud, from the rigs. See MSJ ¶ 1, at 2 (asserting this fact)(citing Deposition of Dimas Herrera at at 8:10-22 (taken May 5, 2016), filed June 17, 2016 (Doc. 42)("Herrera Depo."); Corman Depo. at 8:23-9:8).⁵ The Plaintiffs often worked more than forty hours per workweek, see Cross Memo. ¶ 4, at 4 (asserting this fact)(citing Corman Depo. at 18:14-17),⁶ but they largely worked six days in a row, followed by two days off, see MSJ ¶ 2, at 2 (asserting this fact)(citing Corman Depo. at 9:14-23; Deposition of Renee De La Torre at 22:23-25 (taken May 4, 2016), filed June 17, 2016 (Doc. 39-3)("De La Torre Depo.") ).⁷

During a six-day shift, the Plaintiffs did not work consistent hours; Corman worked "two days to three days straight," went home, returned, and repeated the work. MSJ ¶ 3, at 3 (asserting this fact)(quoting Corman Depo. at 10:6-11).⁸ The Plaintiffs did not drive consistently through the several days, as JWS New Mexico followed Department of Transportation ("DOT") regulations restricting driving time and requiring rest periods. See MSJ ¶ 3 n.3 (asserting this fact)(citing Corman Depo. at 12:10-13:18; id. at 19:23-25; id. at 53:24-55:8; id. at 58:15-18; JWS Policies re Driver's Logs, filed June 17, 2016 (Doc. 40-2); Daily Logs, filed June 17, 2016 (Doc. 40-1) ).⁹ Renee De La Torre, a JSW New Mexico truck driver, worked twenty four hours, but would "sometimes stay 30." MSJ ¶ 4, at 3 (asserting this fact)(quoting De La Torre Depo. at 23:1-6).¹⁰ Leopoldo Garcia, a JSW New Mexico truck driver, would "start [working] on a Monday in the morning" and leave "Tuesday at noon." MSJ ¶ 5, at 3 (asserting this fact)(quoting Deposition of Leopoldo Garcia at 27:6-14 (taken May 4, 2016), filed June 17, 2016 (Doc. 39-4)("Garcia Depo.") ).¹¹ Ivan Lizardo, a JSW New Mexico truck driver, would "go in, and it could be 24 hours, or it could be 15, and it would depend if there was a lot of work." MSJ ¶ 6, at 3 (asserting this fact)(quoting Deposition of Ivan Lazardo¹² at 10:13-20 (taken May 3, 2016), filed June 17, 2016 (Doc. 39-5)("Lizardo Depo.") ).¹³ A "pusher," a supervisor, would assign the Plaintiffs to a new job after they completed a job. MSJ ¶ 7, at 3 (citing Corman Depo. 13:21-14:7; Herrera Depo. 12:7-13:15; De La Torre Depo. 23:16-24:4).¹⁴ The Plaintiffs' hours depended on the type and length of a job. See MSJ ¶ 8, at 3 (asserting this fact)(citing Declaration of Dimas Herrera ¶ 3, at 1 (executed on June 16, 2016), filed June 17, 2016 (Doc. 39-6)("Herrera Decl.").¹⁵ Drivers might work eight-hour days throughout the six-day shift, or they might work twenty-four hours, sleep, then work the next day. See MSJ ¶ 8, at 3 (asserting this fact)(citing Herrera Decl. ¶ 3, at 1).¹⁶

Fluctuations in the oil industry also affected the Plaintiffs' work hours, because they would work more when prices and demand for their services were high. See MSJ ¶ 9, at 3-4 (asserting this fact)(citing Herrera Decl. ¶ 4, at 1-2).¹⁷ JWS New Mexico's gross monthly revenue varied significantly between months and between years. See MSJ ¶ 10, at 4 (citing Declaration of Richard Stults ¶ 3, at 1-2 (executed on June 15, 2016), filed June 17, 2016 (Doc. 40-3)("Stults Decl.") ).¹⁸ In January, 2015, the gross monthly revenue was $1,560,069.57, and in November, 2015, the gross monthly revenue was $321,410.25 -- a seventy-nine percent difference. See MSJ ¶ 10, at 4 (asserting this fact)(citing Stults Decl. ¶ 3, at 1-2).¹⁹ In January, 2014, JWS New Mexico earned $2,103,890.85, a fifty-two percent increase since January, 2013's total of $1,381,754.62, and in November 2014, JWS New Mexico earned $321,410.25, an eighty percent decrease from the $1,637,774.63 earned in November, 2014. See MSJ ¶ 10, at 4 (asserting this fact)(citing Stults Decl. ¶ 3, at 1-2).²⁰

For each job that the Plaintiffs completed, regardless how JWS New Mexico charged the customer, JWS New Mexico paid the Plaintiffs twenty-five percent of the customer's transportation charge. See MSJ ¶ 11, at 4 (asserting this fact)(citing Herrera Decl. ¶ 5, at 2; Herrera Depo. at 79:15-25; Corman Depo. at 68:5-8); MSJ ¶ 16, at 5 (asserting this fact)(citing Herrera Decl. ¶ 5, at 2).²¹ JWS New Mexico calculated the customer's charge by an hourly bid rate, a barrel bid rate, or an hourly rate. See MSJ ¶ 12, at 4 (asserting this fact)(citing Herrera Decl. ¶ 6, at 2; Herrera Depo. at 43:21-45:5).²² JWS New Mexico based hourly bid rates on estimates "of how long the job would take," considering the distance, road conditions, and similar concerns. MSJ ¶ 13, at 4-5 (asserting this fact)(citing Herrera Decl. ¶ 7, at 2; Herrera Depo. at 47:15-49:6).²³ JWS New Mexico calculated barrel bid rates based on the number of barrels delivered to the customer, multiplied by a price-per-barrel, which it calculated considering the distance between the client and the water station, road conditions, water costs, and similar concerns. See MSJ ¶ 14, at 5 (asserting this fact)(citing Herrera Decl. ¶ 8, at 2; Herrera Depo. at 45:6-47:14).²⁴ JWS New Mexico based hourly rates on the hours a job required, and JWS New Mexico charged water and waste product disposal costs separately when charging an hourly rate. See MSJ ¶ 15, at 5 (citing Herrera Decl. ¶ 9, at 2; Herrera Depo. at 49:13-18).²⁵ Where JWS New Mexico charged a customer an hourly rate, the driver makes an amount calculated based on the hours for the job. See Cross Memo. ¶ 11, at 5.²⁶ For jobs on a bid basis, the driver receives a set amount regardless the job's duration. See Cross Memo. ¶ 12, at 5 (asserting this fact)(citing Herrera Depo. at 80:15-20).²⁷ Drivers received about fifty percent of their pay from jobs calculated on an hourly basis and about fifty percent from jobs calculated on a bid basis. See Cross Memo. ¶ 14, at 3 (asserting this fact)(citing Herrera Depo. at 82:18-83:16).²⁸

JWS New Mexico's charges to customers for hourly rate jobs might diverge from the hours drivers worked, because JWS New Mexico decreased the hours it charged to customers. See Cross MSJ Response ¶ A, at 3 (asserting this fact)(citing Supplemental Declaration of Dimas Herrera ¶ 5, at 2 (executed on June 22, 2016), filed July 1, 2016 (Doc. 48-1)("Herrera Supp. Decl.") ).²⁹ JWS New Mexico management would cross out the hours on the drivers' job tickets and write in other hours. See Cross MSJ Response ¶ C, at 4 (asserting this fact)(Herrera Supp. Decl. ¶¶ 7, 10-11, at 2-3).³⁰ For jobs where JWS New Mexico wrote down the hours, JWS New Mexico...