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
• Citation: Corman v. JWS of N.M., Inc., 356 F.Supp.3d 1148 (D. N.M. 2018)
• 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 OPINION¹

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 DefendantsJWS 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 PlaintiffRichard 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 BACKGROUND²

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.SeeCross Memo.¶ 1, at 4(asserting this fact)(citingComplaint¶ 12, at 3);Answer¶ 12, at 3, filedDecember 18, 2015(Doc. 23).³JWS New Mexico is a wholly-owned subsidiary of Kauffmann Co.SeeCross Memo.¶ 2, at 4(asserting this fact)(citingComplaint¶ 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.SeeCross Memo.¶ 3, at 4(asserting this fact)(citing Deposition of Richard Cormanat 7:23-8:7(taken May 3, 2016), filedJune 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.SeeMSJ ¶ 1, at 2(asserting this fact)(citingDeposition of Dimas Herreraat at 8:10-22(taken May 5, 2016), filedJune 17, 2016(Doc. 42)("Herrera Depo.");CormanDepo. at 8:23-9:8).⁵The Plaintiffs often worked more than forty hours per workweek, seeCross Memo.¶ 4, at 4(asserting this fact)(citingCormanDepo. at 18:14-17),⁶ but they largely worked six days in a row, followed by two days off, seeMSJ ¶ 2, at 2(asserting this fact)(citingCormanDepo. at 9:14-23;Deposition of Renee De La Torreat 22:23-25(taken May 4, 2016), filedJune 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)(quotingCormanDepo. at 10:6-11).⁸The 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.SeeMSJ ¶ 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) ).⁹Renee 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)(quotingDe La TorreDepo. at 23:1-6).¹⁰Leopoldo 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)(quotingDeposition of Leopoldo Garciaat 27:6-14(taken May 4, 2016), filedJune 17, 2016(Doc. 39-4)("Garcia Depo.") ).¹¹Ivan 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)(quotingDeposition of Ivan Lazardo¹²at 10:13-20(taken May 3, 2016), filedJune 17, 2016(Doc. 39-5)("Lizardo Depo.") ).¹³A "pusher," a supervisor, would assign the Plaintiffs to a new job after they completed a job.MSJ ¶ 7, at 3(citingCormanDepo. 13:21-14:7; Herrera Depo. 12:7-13:15;De La TorreDepo. 23:16-24:4).¹⁴The Plaintiffs' hours depended on the type and length of a job.SeeMSJ ¶ 8, at 3(asserting this fact)(citing Declaration of Dimas Herrera¶ 3, at 1(executed on June 16, 2016), filedJune 17, 2016(Doc. 39-6)("Herrera Decl.").¹⁵Drivers might work eight-hour days throughout the six-day shift, or they might work twenty-four hours, sleep, then work the next day.SeeMSJ ¶ 8, at 3(asserting this fact)(citingHerreraDecl. ¶ 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.SeeMSJ ¶ 9, at 3-4(asserting this fact)(citingHerreraDecl. ¶ 4, at 1-2).¹⁷JWS New Mexico's gross monthly revenue varied significantly between months and between years.SeeMSJ ¶ 10, at 4(citingDeclaration of Richard Stults¶ 3, at 1-2(executed on June 15, 2016), filedJune 17, 2016(Doc. 40-3)("Stults Decl.")).¹⁸In 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.SeeMSJ ¶ 10, at 4(asserting this fact)(citingStultsDecl. ¶ 3, at 1-2).¹⁹In 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.SeeMSJ ¶ 10, at 4(asserting this fact)(citingStultsDecl. ¶ 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.SeeMSJ ¶ 11, at 4(asserting this fact)(citingHerreraDecl. ¶ 5, at 2;HerreraDepo. at 79:15-25;CormanDepo. at 68:5-8);MSJ ¶ 16, at 5(asserting this fact)(citingHerreraDecl. ¶ 5, at 2).²¹JWS New Mexico calculated the customer's charge by an hourly bid rate, a barrel bid rate, or an hourly rate.SeeMSJ ¶ 12, at 4(asserting this fact)(citingHerreraDecl. ¶ 6, at 2;HerreraDepo. at 43:21-45:5).²²JWS 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)(citingHerreraDecl. ¶ 7, at 2;HerreraDepo. at 47:15-49:6).²³JWS 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.SeeMSJ ¶ 14, at 5(asserting this fact)(citingHerreraDecl. ¶ 8, at 2;Herrera Depo.at 45:6-47:14).²⁴JWS 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.SeeMSJ ¶ 15, at 5(citingHerreraDecl. ¶ 9, at 2;HerreraDepo. at 49:13-18).²⁵Where JWS New Mexico charged a customer an hourly rate, the driver makes an amount calculated based on the hours for the job.SeeCross Memo.¶ 11, at 5.²⁶For jobs on a bid basis, the driver receives a set amount regardless the job's duration.SeeCross Memo.¶ 12, at 5(asserting this fact)(citingHerreraDepo. at 80:15-20).²⁷Drivers 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.SeeCross 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.SeeCross MSJ Response¶ A, at 3(asserting this fact)(citingSupplemental Declaration of Dimas Herrera¶ 5, at 2(executed on June 22, 2016), filedJuly 1, 2016(Doc. 48-1)("Herrera Supp. Decl.") ).²⁹JWS New Mexico management would cross out the hours on the drivers' job tickets and write in other hours.SeeCross MSJ Response¶ C, at 4(asserting this fact)(HerreraSupp. Decl. ¶¶ 7, 10-11, at 2-3).³⁰For jobs where JWS New Mexico wrote down the hours, JWS New Mexico...