Halford v. No Hope Logging, Inc.

• Citation: 727 F.Supp.2d 523
• Decision Date: 23 July 2010
• Docket Number: Civil Action No. 2:09cv110KS-MTP
• Parties: Bobby HALFORD, on behalf of himself and others similarly situated, Plaintiff v. NO HOPE LOGGING, INC. and Michael Heath Sistrunk, Individually, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

727 F.Supp.2d 523

Bobby HALFORD, on behalf of himself and others similarly situated, Plaintiff

v.NO HOPE LOGGING, INC. and Michael Heath Sistrunk, Individually, Defendants.

Civil Action No. 2:09cv110KS-MTP.

United States District Court,

S.D. Mississippi,

Hattiesburg Division.

July 23, 2010.

Jennifer Miller Bermel, Morgan & Morgan, PA, Memphis, TN, for Plaintiff.

Samuel Christopher Farris, Hattiesburg, MS, for Defendants.

Memorandum Opinion and Order

KEITH STARRETT, District Judge.

This cause is before the Court on the Motion for Summary Judgment [Doc. # 25] (April 14, 2010) and memorandum in support [Doc. # 28] (April 23, 2010) filed by Defendants No Hope Logging, Inc., and Michael Heath Sistrunk and refiled with redacted exhibits [Doc. # 37] (July 9, 2010). This Motion is opposed by Plaintiff Bobby Halford [Docs. # 32] (June 9, 2010). The court, having reviewed the motion, the responses, the pleadings and exhibits on file and being otherwise fully advised in the premises, finds as follows:

I. Background

Halford is a former employee of No Hope Logging, Inc. and brings claims against No Hope Logging and one of its owners, Michael Heath Sistrunk ("Heath"), under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for failure to pay overtime. Defendants claim that they are exempt from the overtime pay requirements under the forestry exemption, 29 U.S.C. § 213(b)(28), because No Hope Logging employed no more than eight employees, including Heath, at any given time. In response, Halford asserts that the number of employees is disputed and not supported by the evidence. Halfordalso argues that the Court should count employees of No Hope Trucking, Inc., which is a separate company owned and operated by Heath and his wife, Amanda Sistrunk ("Amanda") when determining whether the forestry exemption for employers with less than eight employees applies.¹

Both No Hope Logging, Inc. and No Hope Trucking, Inc. are Mississippi corporations formed in December of 2004 owned in equal parts by Heath and Amanda. The logging company is engaged in the business of cutting and harvesting timber under a contract with Weyerhaeuser. Defs.' Rebuttal 5 [Doc. # 36]. It uses two crews, each outfitted with a skidder, a cutter, a loader, and three employees to operate each of the three pieces of equipment. Halford worked sporadically as a crew member between May 5, 2008, and April 30, 2009. See Defs' Rebuttal, Ex. 4, Amanda's Dep. at 29 [Doc. # 36-2]. In addition to these six employees, No Hope Logging employs a mechanic and Heath as the foreman, bringing the total to eight employees. Because of a high rate of turnover, the logging company employed 20 employees total over the course of 2008, and 14 employees total between January 1, 2009 and September 1, 2009, but Defendants claim they never had more than eight employees working for the logging company at any given time. See Defs.' Mem. Supp. Summ. J. 2 [Doc. # 28]; Defs' Rebuttal, Ex. 4, Amanda's Dep. at 11-12, 26, 27-28, 33-34 [Doc. # 36-2 & 36-3]. In her deposition, Amanda did note two weeks in all of 2008 and 2009 when the payroll listed nine employees for the pay period or workweek. Amanda's Dep. at 34-35. She explained, "if there was for some reason nine employees on here, it was because one quit during that pay period so we had to replace him with another employee, but that they weren't employed on the same day." Id. at 34. Again, the nine employees in one pay period would include Heath, the co-owner. Id.

The crew members work from 6:30 a.m. to 4:30 p.m. with a thirty minute lunch break. They are paid $130.00 or $135.00 per work day. If the weather does not permit harvesting that day and the crew member shows up to work, he is paid $30.00 for that day and is sent home. Id. at 30, 55. If the crew members work beyond these set hours, they are paid by the hour. Id. at 55. Halford worked beyond his regularly scheduled hours once for two hours the week of November 20, 2008, and was paid $15.00 per hour for this extra time above and beyond his regularly scheduled hours. The employees were paid weekly, and each pay period included one workweek.

Under its contract with Weyerhaeuser, the logging company must use Harvest Haul, an independently owned and operated business, to transport the harvested logs. See Amanda's Dep. at 13. Weyerhaeuser does not require that No Hope Logging use No Hope Trucking but they can and do use them because they produce more wood than Harvest has capacity to carry. See id. at 15-16. If Harvest Haul transports the timber, Weyerhaeuser pays No Hope Logging a per-ton rate, minus the per-ton rate that Harvest Haul gets for its services. If No Hope Trucking hauls the timber instead of Harvest Haul, Weyerhaeuser pays No Hope Logging the full per-ton rate without subtracting out the amount that will be paid to the hauler. Id. at 23-24. In other words, when NoHope Logging and No Hope Trucking harvest and transport a particular load, Weyerhaeuser only sends one check payable to No Hope Logging since the businesses are at the same address. Id. at 43.

The trucking company is engaged in the business of transportation of forest products either in log form or topsoil. The trucking company had two to four trucks during the relevant time period and employed a driver per truck. Id. at 22. These drivers do not participate in the harvesting of logs. The trucking company is under a separate annual service contract with Weyerhaeuser, and must be available to be dispatched wherever it is needed, regardless of what company is harvesting the timber. Id. at 40-42. Amanda testified that "if a truck dispatcher calls and said we need your truck to go to another logging site and pick up logs, you have to go and do it. You can't say, no, I'm only going to haul off this job. You have to go where they tell you to go." Amanda further testified that "if [Weyerhaeuser] tell us that we have to go haul off of another logging job, then our trucks have to go, they don't have a choice. So then in turn, we have asked for [Weyerhaeuser] to pay us in separate checks for that, they don't. That's why everything is on one statement." Id. at 41. When No Hope Trucking hauls timber or other products for companies other than Weyerhaeuser, that entity pays No Hope Trucking directly, which provides the trucking company a means of making a profit. Id. at 48-49. No Hope Logging does not pay No Hope Trucking based on the number of loads it carried on Weyerhaeuser jobs. Instead, Amanda transfers money weekly from No Hope Logging to No Hope Trucking in an amount sufficient to cover the bills and other expenses incurred by the trucking company, such as payroll, truck repairs, diesel fuel, and loan repayment, if the bills cannot be covered by money already in the Logging Company account.² Id. at 18-19, 48-49.

II. Standard of Review

Summary judgment is warranted if "the pleadings, the discovery and disclosure materials 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)(2) (2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To support a motion for summary judgment, "the moving party ... [has] the burden of showing the absence of a genuine issue as to any material fact."Burleson v. Tex. Dept. of Criminal Justice, 393 F.3d 577, 589 (5th Cir.2004). Material facts are those that "could affect the outcome of the action." Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (internal citations omitted). Disputes about material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party" on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In evaluating a motion for summary judgment, the court views all evidence "in the light most favorable to the non-moving party" and "draw[s] all reasonable inferences in its favor." Breen v. Texas A & M Univ., 485 F.3d 325, 331 (5th Cir.2007). If the movant satisfies its initial burden, then the burden shifts back to the non-moving party to produce evidence indicating that a genuine issue of material fact exists for each essential element of its case. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246-47 (5th Cir.2003). The non-movant is not entitled to merely rest on his pleadings, but must set forth "specific facts showing there is a genuine issue for trial." DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005). Once a properly supported motion for summary judgment is presented, the non-moving party must rebut with "significant probative evidence." In Re Mun. Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). If the non-movant responds and still "no reasonable juror could find for the non-movant, summary judgment will be granted." Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th Cir.2002).

While generally "[t]he burden to discover a genuine issue of fact is not on [the] court," Topalian v. Ehrman, 954 F.2d 1125, 1137 (5th Cir.1992), "Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention-the court must consider both before granting a summary judgment." John v. Louisiana (Bd. of Tr. for State Coll. & Univs., et al.), 757 F.2d 698, 712 (5th Cir.1985) (quoting Keiser v. Coliseum Prop., Inc., 614 F.2d 406, 410 (5th Cir.1980)).

III. Law and Application

Halford clearly worked hours in excess of 40 hours per week. The crew members worked daily from 6:30 a.m. to 4:30 p.m. with thirty minutes for lunch. Halford's payroll history indicates that he worked five or six days a week at least seven weeks of his total nineteen weeks with No Hope Logging. See Pl.'s Mem. Opp. Mot., Ex. 4 [Doc. # 35]. The only issue then is whether No Hope Logging was exempt from the requirement to pay time and a half for any time worked...