Joseph v. Nichell's Caribbean Cuisine, Inc.

• Decision Date: 17 July 2012
• Docket Number: Case No. 11–62594–CIV.
• Citation: 862 F.Supp.2d 1309
• Parties: Lisa JOSEPH, Plaintiff, v. NICHELL'S CARIBBEAN CUISINE, INC., a Florida corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

862 F.Supp.2d 1309

Lisa JOSEPH, Plaintiff,

v.NICHELL'S CARIBBEAN CUISINE, INC., a Florida corporation, Defendant.

Case No. 11–62594–CIV.

United States District Court,

S.D. Florida.

Jan. 26, 2012.

As Amended July 17, 2012.

Lawrence Joseph McGuinness, Miami, FL, for Plaintiff.

Kristopher Walter Zinchiak, Seth Michael Amkraut, Chris Kleppin, Glasser Boreth & Kleppin, Plantation, FL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon the Defendant Nichell's Carribean Cuisine, Inc. (“Defendant”)'s Motion to Dismiss Case as Frivolous, Alternatively, Motion to Convert Motion to Dismiss into One for Summary Judgment, and Motion for Summary Judgment [DE 3], filed herein on December 7, 2011. The Court has carefully considered the Motion, Plaintiff Lisa Joseph (“Plaintiff”)'s Response [DE 5], Defendant's Reply [DE 10], the supporting documentation, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff, a former waitress and cashier for Defendant, a local Jamaican restaurant, filed a Complaint in state court on November 16, 2011, alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., for overtime violations and retaliation. Defendant removed the action to this Court on December 7, 2011 on the basis of federal question jurisdiction. 28 U.S.C. §§ 1331 and 1343. The Complaint sets forth two (2) substantive counts pursuant to the FLSA: “Count I—Unpaid Overtime” and “Count II–Retaliation.” Plaintiff seeks back wages, liquidated damages, prejudgment interest, attorneys' fees, and litigation expenses.

II. STANDARD OF REVIEW

The Court may grant summary judgment “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed.R.Civ.P. 56(e), the non-moving party “may not rely merely on allegations or denials in its own pleadings,” but instead must come forward with “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. “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).

III. DISCUSSION

(1) FLSA ENTERPRISE COVERAGE

Defendant argues that the undisputed material facts establish that Defendant does not meet the requirements for “enterprise coverage” under the FLSA. In order for an enterprise to be “engaged in commerce” for purposes of enterprise coverage, a business must have employees handling goods or materials that have been moved in interstate commerce and must have annual gross volume of sales or business done in excess of $500,000. See29 U.S.C. § 203(s)(1)(A)(i), (ii). Here, Defendant produced tax returns in support of its motion for summary judgment indicating that Defendant does not meet the second requirement for enterprise coverage. In her Response, Plaintiff has conceded that enterprise coverage does not apply to Defendant. See [DE 5] at p. 4. Accordingly, Defendant's motion for summary judgment as to the issue of FLSA enterprise coverage shall be granted.

(2) FLSA INDIVIDUAL COVERAGE

Second, Defendant requests that the Court, on summary judgment, rule as a matter of law that Plaintiffs FLSA unpaid overtime claim also fails as to the theory of FLSA individual coverage. For individual coverage to apply under FLSA, Plaintiff must prove that she was “(1) engaged in commerce or (2) engaged in the production of goods for commerce.” Thorne v. All Restoration Services, Inc., 448 F.3d 1264 (11th Cir.2006) (citing 29 U.S.C. § 207(a)(1)) (stating “no employer shall employ any of his employees who ... is engaged in commerce or in the production of goods for commerce ... for a workweek longer than forty hours unless such employee received compensation ... at a rate no less than one and one-half times the regular rate”). The burden of proof lies on employees to establish that they were engaged in interstate commerce, or in the production of goods, and that such production was for interstate commerce. D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 121, 66 S.Ct. 925, 90 L.Ed. 1114 (1946); Warren–Bradshaw Drilling Co. v. Hall 317 U.S. 88, 90, 63 S.Ct. 125, 87 L.Ed. 83 (1942). Here, Plaintiff does not contend that she was engaged in the production of goods for interstate commerce.

The test to determine whether an employee is engaged in commerce “is not whether the employee's activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it.” McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943). In the Eleventh Circuit, to be covered under the Act, a plaintiff must be “directly participating in the actual movement of persons or things in interstate commerce.” Thorne, 448 F.3d at 1266. Moreover, “a substantial part of [Plaintiff s] work” must be the engagement in interstate commerce for the Plaintiffs to successfully invoke individual coverage. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460 (1943) (holding that individual coverage is established “[i]f a substantial part of an employee's activities related to goods whose movement in the channels of interstate commerce was established by the test we have described, he is covered by the [FLSA]”).

The following facts related to Plaintiff's claim of individual coverage are undisputed for purposes of this summary judgment motion: (a) Plaintiff processed credit and debit card purchase transactions; (b) Plaintiff served food prepared with ingredients that had crossed state lines; (c) Plaintiff served beverages that had been produced out-of-state; (d) Plaintiff served customers who had come to Defendant's restaurant from out of the state of Florida. See [DE 5–2].

Based upon these undisputed facts, the Court finds, as a matter of law, that Plaintiff was not individually engaged in interstate commerce. Usage of credit cards is insufficient for purposes of establishing FLSA individual coverage. See Thorne, 448 F.3d at 1266–67 (rejecting argument that regular usage of credit cards sufficient for establishing FLSA individual coverage) ¹; Marckenson v. LAL Peker, LLC, 2011 WL 5023422, *4 (S.D.Fla. Oct. 19, 2011) (processing credit cards for goods purchased locally does not constitute engaging in interstate commerce); see also Kitchings v. Fla. United Methodist Children's Home, Inc., 393 F.Supp.2d 1282, 1293 n. 26 (M.D.Fla.2005) (holding that plaintiff's use of a credit card to purchase local goods did not constitute “engagement in commerce”); Dent v. Giaimo, 606 F.Supp.2d 1357, 1361 (S.D.Fla.2009) (“This Court also holds that plaintiff's use of ... credit cards is insufficient to establish jurisdiction. To be considered ‘engaged in interstate commerce’ a business must use a credit card specifically to transact business in interstate commerce.”).

Next, handling goods, in this case food or beverages, that have previously traveled in interstate commerce does not constitute engaging in interstate commerce. See Thorne, 448 F.3d at 1267 (holding that “[w]hen goods reach the customer for whom they were intended, the interstate journey ends and employees engaged in any further intrastate movement of the goods are not covered under the Act”) (citing McLeod v. Threlkeld, 319 U.S. 491, 493, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943)); Navarro v. Broney Automotive Repairs, Inc., 314 Fed.Appx. 179, 180 (11th Cir.2008) (“The automotive parts were removed from the flow of interstate commerce when they arrived at the auto parts stores.”). See also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1316 (11th Cir.2011) (“While the point of origin of these vehicles may be relevant under a theory of enterprise coverage, their origin is irrelevant to the issue of individual coverage—namely, whether [plaintiff] himself directly participated in the actual movement of persons or things in interstate commerce.”) (emphasis added).

In this case, the fact that the food (or ingredients) and beverages to be served to customers may have passed in interstate commerce prior to arriving at the restaurant does not invoke individual coverage under the FLSA. See, e.g., Lopez v. Top Chef Inv., Inc., 2007 WL 4247646, *2 (S.D.Fla. Nov. 30, 2007) (“Plaintiff alleges...