Diaz v. Jaguar Restaurant Group, LLC, Case No. 08-22317-CIV.

• Decision Date: 22 June 2009
• Docket Number: Case No. 08-22317-CIV.
• Citation: 649 F.Supp.2d 1343
• Parties: Isabel DIAZ, Plaintiff, v. JAGUAR RESTAURANT GROUP, LLC, Eduardo Durazo, Jagmar Management Group, LLC, Jagmar Brands, LLC, Defendants.
• Court: U.S. District Court — Southern District of Florida

649 F.Supp.2d 1343

Isabel DIAZ, Plaintiff, v. JAGUAR RESTAURANT GROUP, LLC, Eduardo Durazo, Jagmar Management Group, LLC, Jagmar Brands, LLC, Defendants.

Case No. 08-22317-CIV.

United States District Court, S.D. Florida.

June 22, 2009.

COPYRIGHT MATERIAL OMITTED

Jamie H. Zidell, Miami Beach, FL, for Plaintiff.

Melissa Alagna, Norman S. Segall, Ruden McClosky Smith Schuster & Russell, Miami, FL, for Defendants.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

EDWIN G. TORRES, United States Magistrate Judge.

This matter is before the Court upon Defendants' Motion for Summary Final Judgment ("Motion") [D.E. 21], filed February 17, 2009, and Plaintiff's Response in Opposition ("Response") [D.E. 25], filed March 16, 2009. After careful consideration of the motion, response, reply, relevant authority, and being otherwise fully advised in the premises, Defendants' Motion for Summary Final Judgment is Denied.

I. BACKGROUND

This action was filed by Plaintiff Isabel Diaz against her former employers, Defendants Jaguar Restaurant Group, LLC, Eduardo Durazo, Jagmar Management Group, LLC, and Jagmar Brands, LLC. Plaintiff's Complaint ("Complaint") [D.E. 1] asserts a single claim: violation of the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. § 207(a)(1)¹ in that Defendant "willfully and intentionally refused to pay Plaintiff the overtime wages" to which she claims entitlement. Complaint ¶ 12 [D.E. 1]. Plaintiff alleges that between November 7, 2004 and March 7, 2008, she worked an average of 60 hours per week for which she was paid an average of $12.00 per hour, but was never paid overtime wages. Id. ¶¶ 9-11 [D.E. 1]. Plaintiff requests double damages for all of the overtime hours to which she claims entitlement, an award of attorneys' fees, court costs and interest.

Defendants argue in the present Motion that Plaintiff cannot recover under the FLSA because she is not entitled to individual or enterprise coverage, as defined and interpreted under the statute and relevant case law. Motion at 1 [D.E. 21]. Defendants alternatively contend that Plaintiff cannot recover under the FLSA because she has failed to produce sufficient evidence to get to the jury as to whether she worked an average of 60 hours per week. Id. Defendants therefore seek an order granting summary final judgment in their favor.

Plaintiff opposes the Motion, arguing that enterprise coverage exists in this case to trigger the FLSA, and further that she has sufficient evidence to show that she worked an average of 60 hours per week.

II. ANALYSIS

A. Summary Judgment Standard

A Court should grant summary judgment "if the pleadings, the discovery and disclosure statements on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no "genuine issue for trial" when, taking the entire record into consideration, a rational trier of fact could not find for the non-moving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The Court, when making this determination, "must view all the evidence and all the factual inferences reasonably drawn from the evidence in the light most favorable to the non-moving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997).

Summary judgment is appropriate "where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial." Navarro v. Broney Automotive Repairs, Inc., 533 F.Supp.2d 1223, 1225 (S.D.Fla.2008) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). Accordingly, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must— by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). "A mere `scintilla of evidence' supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir.2004). "If the evidence advanced by the non-moving party `is merely colorable, or is not significantly probative, then summary judgment may be granted.'" Lamonica v. Safe Hurricane Shutters, Inc., 578 F.Supp.2d 1363, 1365 (S.D.Fla.2008) (citing Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505).

B. Enterprise Coverage

A Plaintiff wishing to invoke the protections offered by the FLSA must satisfy the requirements for either individual or enterprise coverage. Individual coverage exists where the employee herself was "engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 207(a)(1). Enterprise coverage exists where the enterprise as a whole is "engaged in commerce or in the production of goods for commerce." Id. Plaintiff herself was clearly not engaged in commerce directly. Plaintiff thus claims coverage only through enterprise coverage. [D.E. 25].

The FLSA defines an enterprise "engaged in commerce or in the production of goods for commerce" as an enterprise that has two or more employees who are directly engaged in commerce or that has employees handling goods or materials that have been moved in commerce. The operative statute specifically defines an "enterprise" as one that:

(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and

(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated).²

29 U.S.C. § 203(s)(1)(A). Subsection (i) thus has two distinct prongs from which an employer can qualify as an enterprise under the statute.

The Code of Federal Regulations provides further clarification:

An enterprise ... will be considered to have employees engaged in commerce or in the production of goods for commerce, including the handling, selling, or otherwise working on goods that have been moved in commerce by any person if ... it regularly and recurrently has at least two or more employees engaged in such activities. On the other hand, it is plain that an enterprise that has employees engaged in such activities only in isolated or sporadic occasions, will not meet this condition.

29 C.F.R. § 779.238.

Therefore, a single employee who is directly engaged in commerce is not enough. Nor is it enough to have two or more employees who only engage in commerce on isolated occasions. The statute requires instead that two or more employees (i) recurrently engage in commerce or the production of goods for commerce, or (ii) recurrently handle materials that previously moved through interstate commerce.

In this case, Plaintiff is not alleging that two or more of Defendants' employees are engaged in commerce directly. Plaintiff is relying instead on the second prong of subsection (s)(1) (A)—that two or more employees are handling materials that have previously moved through interstate commerce. Defendants in response do not dispute that many of the products they purchase from local distributors are likely manufactured out-of-state. Motion at 6 [D.E. 21]. That is not surprising for a restaurant, which uses heavy appliances for food preparation, and relies on food products and beverages that originate in different parts of the country and, indeed, different parts of the world. The most essential "materials" required to operate a typical restaurant like this one have undoubtedly traveled in interstate or foreign commerce.

Though Defendants do not dispute these essential facts, they instead claim that no FLSA coverage exists over them under the "ultimate consumer" (a/k/a the "come-to-rest") doctrine, id., which provides that once an item reaches its intended customer, the item is no longer in interstate commerce and thus any further intrastate movement does not trigger coverage for goods "in commerce" as defined by the FLSA. See, e.g., Polycarpe v. E & S Landscaping Serv., Inc., 572 F.Supp.2d 1318, 1321 (S.D.Fla.2008); McLeod v. Threlkeld, 319 U.S. 491, 493, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943) ("[H]andlers of goods for a wholesaler who moves them interstate in order or to meet the needs of specified customers are in commerce, while those employees who handle goods after acquisition by a merchant for general local disposition are not."). This doctrine has been repeatedly applied in our district to constrain the scope of enterprise coverage. See also Bien-Aime v. Nanak's Landscaping, Inc., 572 F.Supp.2d 1312, 1317 (S.D.Fla.2008); Lamonica v. Safe Hurricane Shutters, Inc., 578 F.Supp.2d 1363, 1367-68 (S.D.Fla.2008); Flores v. Nuvoc, Inc., 610 F.Supp.2d 1349 (S.D.Fla.2008); Vallecillo v. Wall to Wall Residence Repairs, Inc., 595 F.Supp.2d 1374, 1380 (S.D.Fla.2009).

Having examined the matter closely, we conclude that some of these district court decisions could be read too broadly as applying the ultimate consumer doctrine to both prongs of a defined enterprise. To the extent these decisions are doing so, they are trying to be faithful to language found in recent Eleventh Circuit decisions, one published but distinguishable, and the other unpublished and also distinguishable. Faced with the same obligation to follow our circuit's law, we are bound to more narrowly apply this limitation on the scope of enterprise coverage based on published and...