King v. Asset Appraisal Services, Inc.

• Decision Date: 23 October 2006
• Docket Number: No. 8:05CV27.,8:05CV27.
• Citation: 470 F.Supp.2d 1025
• Parties: Troy KING, on behalf of himself and other past and present employees similarly situated, Plaintiffs, v. ASSET APPRAISAL SERVICES, INC. and MICHAEL COX, Defendants.
• Court: U.S. District Court — District of Nebraska

470 F.Supp.2d 1025

Troy KING, on behalf of himself and other past and present employees similarly situated, Plaintiffs, v. ASSET APPRAISAL SERVICES, INC. and MICHAEL COX, Defendants.

No. 8:05CV27.

United States District Court, D. Nebraska.

October 23, 2006.

Rachel K. Alexander, Phillip A. Belin, Berens, Tate Law Firm, Omaha, NE, John A. Kinney, Grovier, Milone Law Firm, Omaha, NE, for Asset Appraisal Services, Michael Cox, Defendants.

Jamie L. Cox, Bruce B. Green, Willson, Pechacek Law Firm, Council Bluffs, IA, Michael B. Ryan, Willson, Pechacek Law Firm, Council Bluffs, IA, for Troy King, Graham Rupe, Doug Barnett, Plaintiffs.

MEMORANDUM AND ORDER

GOSSETT, United States Magistrate Judge.

This matter is before the magistrate judge by consent of the parties on defendants' Motion for Summary Judgment [100] and plaintiff's response in opposition thereto [107]. This is a collective action under the Fair Labor Standards Act (FLSA). The plaintiffs were employed by the defendants (together, "AAS") as asset appraisers. They allege that, during their employment by AAS, they "routinely worked in excess of forty (40) hours per week without compensation," in violation of the FLSA, 29 U.S.C. § 201, et seq., and the defendants knew or showed reckless disregard for the fact that the failure to pay overtime violated the FLSA.

Defendants contend that the Motor Carrier Act ("MCA") exemption of the FLSA, see 29 U.S.C. § 213(b)(1); 49 U.S.C. §§ 31501 & 32502, applies to work performed by the plaintiffs. Consequently, the plaintiffs are not be entitled to overtime compensation for hours worked in excess of 40 per workweek.

The court has carefully reviewed the pleadings, the briefs, and the evidentiary materials filed by the parties. For the reasons explained below, the court finds and concludes that summary judgment should be granted in favor of the defendants.

I. FINDINGS OF FACT

I find that the following facts are uncontroverted¹ for purposes of this Motion for Summary Judgment and constitute the material facts upon which a resolution of these issues must be premised.

1. This complaint was filed on January 21, 2005 by Troy King, on his own behalf and on behalf of past and present AAS employees who served as asset appraisers.

2. King claimed that AAS had not paid its asset appraisers overtime compensation for hours worked in excess of 40 per workweek.

3. In January 2006 plaintiffs Barnett and Rupe were granted leave to join the lawsuit as class plaintiffs.

4. King, Barnett, and Rupe seek unpaid overtime compensation for hours allegedly worked in excess of 40 hours during various workweeks while they were asset appraisers employed with AAS.

5. An AAS asset appraiser inspects and records, through written data and pictures, the condition of heavy equipment and other machinery throughout the United States for purposes of establishing that machinery's value to its owner.

6. King, Barnett, and Rupe served as asset appraisers and performed these tasks.

7. King served as an AAS asset appraiser from November 2002 through July 2004.

8. Barnett served as an AAS asset appraiser from March 2001 to August 2004.

9. Rupe served as an AAS asset appraiser from June 2001 through May 2004.

10. In order to travel to an inspection site and perform an appraisal, King would use a company car, office keys, digital camera, computer, calipers, tire-tread depth gauge, inspection forms, tape measure, and master equipment keys.

11. All of the items listed in paragraph 10 were AAS property.

12. In order to travel to the inspection site and perform the appraisal, Barnett would use a company car, ECM reader (Palm Pilot), tape measure, tire gauge, inspection forms, and camera.

13. All of the items listed in paragraph 12 were AAS property.

14. In order to travel to the inspection site and perform the inspection, Rupe would use a company car, digital camera, inspection forms, battery jump pack, ECM reader, slim jim set, tape measures, depth gauge, keys, and calipers.

15. All of the items listed in paragraph 14 were AAS property.

16. During calendar year 2003, there were approximately 28 weeks in which King drove a company-owned car across state lines to appraise heavy construction equipment for the defendants. During the remaining 24 weeks of calendar year 2003, King did not drive across state lines to do appraising, and many of these weeks were spent by King in defendants' Omaha office doing data entry. King worked over 40 hours in these weeks without overtime compensation.

17. Plaintiff Rupe worked for defendants from June 2001 until April 30, 2004. During calendar year 2003 through April 30, 2004, Rupe spent almost all of his time in defendants' Omaha office. In calendar year 2003, there were eight weeks in which Rupe drove across state lines to do work for the defendants. In 2004, there were no weeks in which Rupe drove across state lines to do appraisal work for the defendants. Rupe worked over 40 hours per week in 2003 and 2004 without overtime compensation.

18. Plaintiff Barnett performed appraisals on a weekly basis, driving across state lines.

II. LAW

A. Jurisdiction

This court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Venue in this court is proper under 28 U.S.C. § 1391.

B. Summary Judgment Standard of Review

Under Fed.R.Civ.P. 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Harder v. ACandS, 179 F.3d 609, 611 (8th Cir.1999). "In making this determination, the function of the court is not to weigh evidence and make credibility determinations, or to attempt to determine the truth of the matter, but is, rather, solely, to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir.1997) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact. See Tenbarge v. Ames Taping Tool Sys., Inc., 128 F.3d 656, 657-58 (8th Cir.1997); NECivR 56.1(a).

In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving party to `set forth specific facts showing that there is a genuine issue for trial.'" Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir.1997), cert. denied, 522 U.S. 1048, 118 S.Ct. 693, 139 L.Ed.2d 638 (1998) (quoting Fed.R.Civ.P. 56(e)). A nonmoving party may not rest upon the mere allegations or denials of its pleadings, but rather, must set forth specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 922 (8th Cir. 1998). In this respect, the nonmoving party "`must do more than simply show that there is some metaphysical doubt as to the material facts;'... [i]t must show there is sufficient evidence to support a jury verdict in [its] favor." Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir.1998); see NECivR 56.1(b).

C. Legal Analysis

The FLSA provides that any employee who "is engaged in commerce or in the production of goods for commerce" shall be paid "not less than one and one-half times the regular rate at which he is employed" for every hour over forty hours he works in a workweek. 29 U.S.C. § 207. This provision is subject to numerous exemptions; however, exemptions from the FLSA "are narrowly construed against employers and are to be withheld except as to persons `plainly and unmistakably' within their terms and spirit." Musarra v. Digital Dish, Inc., 454 F.Supp.2d 692 (S.D.Ohio 2006) (citing Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); and Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295-96, 79 S.Ct. 756, 3 L.Ed.2d 815, (1959)). The employer bears the burden of proving that the exemption applies to the employees in question. Id.

The MCA exemption covers "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of [the MCA, 49 U.S.C. § 31502]." 29 U.S.C. § 213(b)(1). Under 49 U.S.C. §§ 13501² and 13502³, the Secretary of Transportation may prescribe requirements' for qualifications and maximum hours of service for "motor carriers"⁴ and for "motor private carriers," "when needed to promote the safety of operations." See 49 U.S.C. § 31502(b); Morgan v. Francois, No. 05-1796, 2006 WL 488439, 170 Fed.Appx. 978, 980 (8th Cir.2006).

The legal issue presented in this motion is whether the plaintiffs were employees of a "motor private carrier." That term is currently defined by statute as follows:

(15) Motor private carrier.-The term "motor private carrier" means a person, other than a motor carrier, transporting property by commercial motor vehicle (as defined in section 31132⁵) when—

(A) the transportation is as provided in section 13501 of this title;

(B) the person is the owner, lessee, or bailee of the property being transported; and

(C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.

49 U.S.C. § 13102(15) (emphasis added).

The definition of "motor private carrier"...