Dahdouh v. Rd. Runner Moving & Storage, 20-CV-61936-RUIZ/STRAUSS

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtJared M. Strauss, United States Magistrate Judge
PartiesROLAND RAOUF DAHDOUH, et al., Plaintiffs, v. ROAD RUNNER MOVING AND STORAGE INC., et al., Defendants.
Decision Date03 August 2021
Docket Number20-CV-61936-RUIZ/STRAUSS

ROLAND RAOUF DAHDOUH, et al., Plaintiffs,


No. 20-CV-61936-RUIZ/STRAUSS

United States District Court, S.D. Florida

August 3, 2021


Jared M. Strauss, United States Magistrate Judge

THIS MATTER came before the Court upon Defendants' Motion for Summary Judgment (“Motion”) [DE 102]. The Motion was referred to me to take all necessary and proper action as required by law [DE 119]. I have reviewed the Motion, the Response [DE 114] and Reply [DE 120] thereto, all other summary judgment materials, and all other pertinent portions of the record. For the reasons discussed herein, I respectfully RECOMMEND that the Motion [DE 102] be DENIED.


Plaintiffs commenced this action under the Fair Labor Standards Act (“FLSA”) on September 23, 2020. In their Second Amended Complaint, Plaintiffs allege that Defendants failed to pay them minimum wage for certain hours worked as well as overtime pay for certain hours worked in excess of forty hours per week. [DE 70] ¶¶ 13-14. Defendants deny any liability and raise certain defenses, including that an FLSA exemption applicable to retail or service establishments - under 29 U.S.C. § 207(i) - bars Plaintiffs' overtime claims. See [DE 72].

Defendant, Road Runner Moving and Storage, Inc. (“Road Runner”), is a moving company that provides moving services to the general public. Defendants' Statement of Material Undisputed Facts for Summary Judgment Purposes (“DEF Stmt.”) [DE 102-1] ¶ 1 (undisputed).[1]Road Runner earns all of its revenue from moving services it provides to the general public and from incidental sales of moving supplies. Id. ¶ 2 (undisputed). Road Runner's services are sold directly to customers and are not sold in bulk. Id. ¶ 3.

Plaintiffs worked for Road Runner as salesmen. Compare Id. ¶¶ 4-5 with Plaintiffs' Response to Defendants' Statement of Material Facts (“PL Stmt.”) [DE 115] ¶¶ 4-5. Plaintiff, Roland Dahdouh (“Dahdouh”) worked for Road Runner from around November 4, 2019 until around May 13, 2020, working remotely for approximately the last 2 months. See DEF Stmt. ¶¶ 4, 25; PL Stmt. ¶¶ 4, 25. Plaintiff, Alejandro Morales (“Morales”), worked for Road Runner from either August or November of 2019 until January or February of 2020. See DEF Stmt. ¶ 5; PL Stmt. ¶ 5. Both Plaintiffs were paid on commission (by check). DEF Stmt. ¶¶ 6-7 (undisputed). The dates and amounts of all payments made to Plaintiffs, and the workweek to which each check applies, are undisputed. See Id. ¶¶ 8-12 (undisputed); Motion at 8-11; Response at 11-13.[2]


A “court shall grant summary judgment if the movant shows that 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). “An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007) (citing Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (internal quotation marks omitted) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

Initially, it is the moving party's “burden to demonstrate the basis for its motion, and [it] must identify the portions of the record ‘which it believes demonstrates the absence of a genuine issue of material fact.'” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The movant may meet this burden by demonstrating that the nonmoving party has failed to present sufficient evidence to support an essential element of the case.” Id. (citing Celotex, 477 U.S. at 322-23). See also Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (The movant may satisfy its burden “by ‘showing' or ‘pointing out' to the Court that there is an absence of evidence to support the non-moving party's case.” (citing Celotex, 477 U.S. at 325)). Provided that the moving party meets its burden, the burden then shifts to the non-moving party to show that a genuine issue of material fact exists. Hornsby-Culpepper, 906 F.3d at 1311-12.

To establish a dispute of fact sufficient to avoid the entry of summary judgment, the non-moving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “However, a mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson, 477 U.S. 242). Nevertheless, courts “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted). Moreover, all reasonable doubts regarding the facts must be resolved in favor of the non-moving party. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (citation omitted).


“The [FLSA] requires employers to pay overtime compensation to employees who work more than forty hours in a single week.” Freixa v. Prestige Cruise Servs., LLC, 853 F.3d 1344, 1346 (11th Cir. 2017) (citing 29 U.S.C. § 207(a)(1)). However, the FLSA contains various exemptions from this overtime requirement including one that applies to employment by retail or service establishments when certain conditions are met, which Defendants argue is the case here.

Specifically, 29 U.S.C. § 207(i) provides, in pertinent part, the following:

No employer shall be deemed to have violated subsection (a) by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services

§ 207(i).[3] Thus, for an employer to successfully invoke this exemption, it must establish the following elements: (1) the employer is a retail or service establishment; (2) the employee's regular rate of pay exceeds 1.5 times the minimum wage; and (3) more than half of the employee's compensation for a representative period represents commissions on goods or services. Compere v. Nusret Miami, LLC, No. 19-CV-20277, 2020 WL 4464627, at *4 (S.D. Fla. May 31, 2020) (citing § 207(i)). This exemption only applies to overtime obligations. Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1038 (4th Cir. 2020). It is an employer's burden to demonstrate that an FLSA exemption applies. Ramirez v. Statewide Harvesting & Hauling, LLC, 997 F.3d 1356, 1359 (11th Cir. 2021) (citing Pioch v. IBEX Eng'g Servs., Inc., 825 F.3d 1264, 1268 (11th Cir. 2016)). Courts must fairly read and interpret FLSA exemptions rather than narrowly construing them against an employer. Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018); Ramirez, 997 F.3d at 1359.[4]

Here, the parties dispute whether the first two elements of the exemption are satisfied. The third element, however, is not in dispute. As discussed herein, Defendants have failed to demonstrate that Road Runner qualifies as a retail or service establishment. In other words, a reasonable jury could find that Road Runner is not a retail or service establishment and, thus, that the first element of the exemption is not satisfied. Additionally, genuine issues of material fact exist with respect to whether the second element is satisfied. Those same factual issues, which concern the number of hours Plaintiffs worked, also preclude summary judgment on Plaintiffs' minimum wage claims (to the extent the Motion even adequately raises the minimum wage issue). See infra note 10.


Defendants have failed to show Road Runner is a retail or service establishment. Section 207(i) does not define “retail or service establishment.” However, “courts across the country have continued to apply a long-since repealed definition previously codified at 29 U.S.C. § 213(a)(2).” Lopez v. Triangle Fire, Inc., No. 15-22209-CIV, 2017 WL 2272057, at *3 (S.D. Fla. May 23, 2017) (citing Reich v. Delcorp, Inc., 3 F.3d 1181, 1183 (8th Cir. 1993)). “The repealed statute defined a retail or service establishment as an establishment ‘75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and [is] recognized as retail sales or services in the particular industry.'” Id. (citing § 213(a)(2)). See also Contreras v. Aventura Limousine & Transportation Serv., Inc., No. 13-22425-CIV, 2014 WL 11880993, at *6 & n.4 (S.D. Fla. June 30, 2014) (referencing same definition and noting that it continues to apply for purposes of § 207(i)); Gieg v. DDR, Inc., 407 F.3d 1038, 1047 (9th Cir. 2005) (“Although § 213(a)(2) was later repealed, courts have continued to apply its definition of ‘retail or service establishment' to Section 207(i).” (citing Reich, 3 F.3d at 1183)).[5] Defendants note that 29 C.F.R. § 779.313 summarizes the requirements that an employer must establish to show that it is a “retail or service establishment.” See Motion at 5. Specifically, the establishment:

(a) Must engage in the making of sales of goods or services and (b) 75 percent of

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