Kelly v. Ballard, Civ. No. 67-39-S.

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtDonald J. Helmer, Sheela, Lightner, Hughes, Hilmen & Castro, San Diego, Cal., for defendants
Citation298 F. Supp. 1301
PartiesDavid M. KELLY; Ross M. Campbell and Jerome A. Gunsalus, Plaintiffs, v. O. Stephen BALLARD, individually and dba Bay Cities Ambulance; Miller's Ambulance Service of San Diego, Inc. and Bay Cities Ambulance Service, Inc., Defendants.
Docket NumberCiv. No. 67-39-S.
Decision Date24 April 1969

298 F. Supp. 1301

David M. KELLY; Ross M. Campbell and Jerome A. Gunsalus, Plaintiffs,
v.
O. Stephen BALLARD, individually and dba Bay Cities Ambulance; Miller's Ambulance Service of San Diego, Inc. and Bay Cities Ambulance Service, Inc., Defendants.

Civ. No. 67-39-S.

United States District Court S. D. California.

April 24, 1969.


298 F. Supp. 1302
COPYRIGHT MATERIAL OMITTED
298 F. Supp. 1303
Anthony W. Bright, Escondido, Cal., for plaintiffs

Donald J. Helmer, Sheela, Lightner, Hughes, Hilmen & Castro, San Diego, Cal., for defendants.

MEMORANDUM OF DECISION

SCHWARTZ, District Judge.

This is an action to recover unpaid minimum and overtime wages as provided in the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Jurisdiction is conferred by 28 U.S.C. § 1337 and 29 U.S.C. § 216(b). The parties have stipulated as to the material facts, and have submitted the case upon oral argument and briefs as to the questions of law involved. Thus, in effect, the case is now before the court for summary judgment.

The parties by written stipulation agreed upon the material facts as follows:

"This is an action by plaintiffs, DAVID M. KELLY, ROSS M. CAMPBELL and JEROME A. GUNSALUS, for wages allegedly due them by BAY CITIES AMBULANCE SERVICE, INC. (hereinafter called BAY CITIES), a successor in interest of MILLER'S AMBULANCE SERVICE OF SAN DIEGO, INC., under the provisions of the Fair Labor Standards Act of 1938. MILLER'S AMBULANCE SERVICE OF SAN DIEGO was purchased by defendant, O. STEPHEN BALLARD, on or about August 19, 1965 and renamed BAY CITIES. BAY CITIES operates eight ambulance station locations in San Diego County where two or more drivers or ambulance attendants are employed on a twenty-four hour basis for the purpose of answering ambulance calls. There are one or more ambulances located in each of these stations and each station is fully manned seven days per week.

"All three plaintiffs were employed by BAY CITIES as ambulance drivers or attendants to work in the various stations and respond to calls for defendant's ambulances. Their duties in general were to take any ambulance calls that might come to their station during their time of duty, and also to maintain the cleanliness of their station, their ambulance and themselves.

"During the period of time that plaintiffs were on duty, they were required to be available and ready to answer a call for the ambulance twenty-four hours per day. They had no fixed eating or sleeping schedules and might not be required to answer a call for a twenty-four hour period or might be away from the station answering calls for more than twenty-four hours.

"Prior to defendant Ballard's purchase of MILLER'S AMBULANCE SERVICE OF SAN DIEGO, INC., on or about August 19, 1965, plaintiffs were on duty twenty-four hours per day, five days per week, for a total of 120 hours per week. After defendant Ballard's purchase of MILLER'S AMBULANCE SERVICE OF SAN DIEGO, INC., plaintiffs were on duty twenty-four hours a day, five and one-half days per week for a total of 132 hours per week. This work schedule continued until May 15, 1965.

"The stations generally utilize a dwelling where sleeping and kitchen facilities were available to plaintiffs. Plaintiffs were required to be in the station or in the ambulance remaining in radio contact

298 F. Supp. 1304
with defendant's headquarters at all times while on duty and would use the ambulance for necessary personal trips such as purchasing groceries and haircuts. Plaintiffs were required to furnish their own uniforms and cleaning and to make their own arrangements for relief personnel on their days off

"Plaintiffs did not reside upon the station premises on a permanent basis and during the times that plaintiffs were on duty, they were not allowed to engage in normal private pursuits nor to leave the premises for purposes of their own. Plaintiffs' periods for eating, sleeping, purchasing of their supplies or normal daily functions were subject to the answering of emergency calls as they came in.

"Calls for ambulance service come to defendant's ambulance stations either by telephone or by radio from private citizens, doctors, the California Highway Patrol, local police departments, the Sheriff's Department or other governmental or federal agencies.

"Defendant's ambulances transport sick and injured persons, who are, but not limited to, citizens of the United States and citizens of foreign countries, United States Military Personnel, Veterans patients, and dependents of government employees.

"In the operation of defendant's ambulance service, patients are transported from and over State and Local Highways, connecting interstate and U. S. Highways, commercial airports and aircraft, to and from the Republic of Mexico, to and from local, State, Federal and Military hospitals, and from other and various locations throughout San Diego County utilizing local, State, and Interstate Highways.

"The records of BAY CITIES, indicates that during plaintiff Kelly's period of employment he serviced a total of approximately 235 calls. Of this amount, 24 or 9% of the total calls made by plaintiff Kelly were calls involving accidents on Interstate Highways.

"Plaintiff Gunsalus was involved in 641 trips during his employment with BAY CITIES and 5 trips or 1% of plaintiff Gunsalus' activity were made to accidents on interstate highways. In addition, plaintiff Gunsalus made five trips to the Republic of Mexico.

"Plaintiff Campbell made approximately 280 trips for BAY CITIES during his period of employment and 24, or 8% involved accidents on Interstate Highways.

"BAY CITIES services are available to the general public and almost 100% of its business is conducted within the State of California. Seventy-five (75%) percent or more of BAY CITIES income is paid for by the individual receiving the service as opposed to governmental agencies."

The questions of law to be decided are: (1) whether the plaintiffs were "engaged in commerce" within the meaning of the Act, §§ 206 and 207 of Title 29 U.S.C., and, if so, whether defendant is exempt under the provisions of § 213(a) (2); (2) whether, if the Act applies to the activities of the plaintiffs, any compensation due should include payment for mealtimes and sleep time on a twenty-four hour basis; and (3) whether liquidated damages should be granted to plaintiffs pursuant to 29 U.S.C. § 216(b).

There is no pat formula by which to ascertain whether sections 206 and 207 of the Act apply to employees' activities. It is well established that the scope of the Act is not coextensive with the limits of the power of Congress over commerce. Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959). In the final analysis, each case must stand or fall on its own particular facts. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1941). The activities of the employees, and not the business of the employer, are to be considered under the pre-1966 provisions of the Act applicable here. Mitchell v. Lublin, McGaughy & Assoc., supra. The Court in the Lublin, McGaughy & Assoc. case enunciated a

298 F. Supp. 1305
practical test to determine whether employees are "engaged in commerce"
"The test is whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than an isolated, local activity." 358 U.S. at 212, 79 S.Ct. at 264.

The Ninth Circuit, in Mateo v. Auto Rental Company, 240 F.2d 831 (9th Cir. 1957), restated the test and elaborated some specific factors to be examined:

"The issue here presented is a factual one. Its determination must be guided by practical considerations, not technical conceptions. * * * The ultimate test is whether the local transportation service is an "integral step in the interstate movement." * * * Economic factors and common understanding are important considerations to be weighed in resolving this question. Such factors as the nature and extent of the work claimed to be part of interstate commerce, the structure and operations of the company, the competitive status of the firm, the relationship with those clearly engaged in interstate transportation, and the geographical location of the local termini are all relevant. The decision must rest on the particular facts of each case." 240 F.2d at page 833.

There is very little direct authority on the applicability of the Act to ambulance drivers. However, the Western District of Michigan has recently issued a well-reasoned decision in a case quite similar to the instant case, Duffy v. Oele, 274 F.Supp. 307 (W.D.Mich.1967), holding that the Act applies to ambulance drivers. In Duffy, as well as here, the plaintiffs were employed to answer emergency calls to pick up dead and injured accident victims on public streets and highways. The court in Duffy not only cited...

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18 practice notes
  • Laffey v. Northwest Airlines, Inc., Nos. 74-1791 and 75-1334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 8, 1977
    ...1953); Harp v. Continental/Moss-Gordin Gin Co., 259 F.Supp. 198 (M.D.Ala.1966), aff'd, 386 F.2d 995 (5th Cir. 1967); Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal.1969); Bauler v. Pressed Steel Car Co., 81 F.Supp. 172 (N.D.Ill.1948), aff'd, 182 F.2d 357 (2d Cir. 1950); Peperissa v. Coren-Indi......
  • Thomas v. County of Fairfax, Va., Civ. A. No. 89-1597-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 27, 1991
    ...its pay plan complied with the provisions of the FLSA." Brock v. Claridge Hotel and Casino, 846 F.2d at 187; see also Kelly v. Ballard, 298 F.Supp. 1301, 1309 (S.D.Cal. 1969) (novel or difficult question regarding applicability of the Act weighs in favor of denial of liquidated damages). Pl......
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 2, 1971
    ...letters of the Administrator are entitled to weight in courts' determinations of the retail concept. Kelly v. Ballard, S.D.Cal., 1969, 298 F.Supp. 1301. In addition to the opinion of the Administrator, the idea that public availability is essential to retailing is persuasive as a matter of ......
  • Service Employees Intern. v. County of San Diego, No. 90-1211-GT-M.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 11, 1992
    ...not in bad faith given "uncertain state of the law"), the law in the Ninth Circuit is settled at this time. See id.; Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal.1969). As such, the County cannot find safety in its "good faith" challenge to the law based upon decisions in other circuits. Ins......
  • Request a trial to view additional results
18 cases
  • Laffey v. Northwest Airlines, Inc., Nos. 74-1791 and 75-1334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 8, 1977
    ...1953); Harp v. Continental/Moss-Gordin Gin Co., 259 F.Supp. 198 (M.D.Ala.1966), aff'd, 386 F.2d 995 (5th Cir. 1967); Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal.1969); Bauler v. Pressed Steel Car Co., 81 F.Supp. 172 (N.D.Ill.1948), aff'd, 182 F.2d 357 (2d Cir. 1950); Peperissa v. Coren-Indi......
  • Thomas v. County of Fairfax, Va., Civ. A. No. 89-1597-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • February 27, 1991
    ...its pay plan complied with the provisions of the FLSA." Brock v. Claridge Hotel and Casino, 846 F.2d at 187; see also Kelly v. Ballard, 298 F.Supp. 1301, 1309 (S.D.Cal. 1969) (novel or difficult question regarding applicability of the Act weighs in favor of denial of liquidated damages). Pl......
  • Futrell v. Columbia Club, Inc., No. IP 69-C-176
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 2, 1971
    ...letters of the Administrator are entitled to weight in courts' determinations of the retail concept. Kelly v. Ballard, S.D.Cal., 1969, 298 F.Supp. 1301. In addition to the opinion of the Administrator, the idea that public availability is essential to retailing is persuasive as a matter of ......
  • Service Employees Intern. v. County of San Diego, No. 90-1211-GT-M.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 11, 1992
    ...not in bad faith given "uncertain state of the law"), the law in the Ninth Circuit is settled at this time. See id.; Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal.1969). As such, the County cannot find safety in its "good faith" challenge to the law based upon decisions in other circuits. Ins......
  • Request a trial to view additional results

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