Lamonica v. Safe Hurricane Shutters, Inc.

• Decision Date: 23 September 2008
• Docket Number: Case No. 07-61295-CIV.
• Citation: 578 F.Supp.2d 1363
• Parties: Reinaldo Ramon LAMONICA and Ronaldo Gomez Morsa, et al., on behalf of themselves and other employees similarly situated, Plaintiffs, v. SAFE HURRICANE SHUTTERS, INC., a Florida corporation d/b/a Advanced Hurricane Protection, Edward Leiva, Steve Heidelberger and Francis McCarroll, Defendants.
• Court: U.S. District Court — Southern District of Florida

Page 1363

578 F.Supp.2d 1363

Reinaldo Ramon LAMONICA and Ronaldo Gomez Morsa, et al., on behalf of themselves and other employees similarly situated, Plaintiffs, v. SAFE HURRICANE SHUTTERS, INC., a Florida corporation d/b/a Advanced Hurricane Protection, Edward Leiva, Steve Heidelberger and Francis McCarroll, Defendants.

Case No. 07-61295-CIV.

United States District Court, S.D. Florida.

September 23, 2008.

Jamie H. Zidell, Sarah Ruth Klein, Miami Beach, FL, for Plaintiffs.

Giovani Perez, Norwich, NY, pro se.

Pedro Lopez Vasquez, Pompano Beach, FL, pro se.

Chris Kleppin, Harry O. Boreth, Barry G. Feingold, Glasser Boreth & Kleppin, Plantation, FL, for Defendants.

Edward Leiva, Parkland, FL, pro se.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Plaintiffs' Motion for Partial Summary Judgment as to Jurisdiction Under the Fair Labor Standards Act and Individual Liability [DE 59] ("Plaintiffs' Motion") and Defendants Safe Hurricane Shutters, Inc., Steve Heidelberger, and Francis McCarroll's Motion for Summary Judgment [DE 63] ("Defendants' Motion").¹ The Court has considered the motions, Plaintiffs' Statement of Material Facts [DE 60] ("Plaintiffs' Facts"), Defendants' Response to Plaintiffs' Motion for Summary Judgment [DE 64] ("Defendants' Response"), Defendants' Notice of Dispositive Case Authority in Opposition to Plaintiffs' Motion for Summary Judgment [DE 75] ("Defendants' Case Law"), Plaintiffs' Response in Opposition to Defendants' Notice of Dispositive Case Authority [DE 76] ("Plaintiffs' Response to Case Law"), Defendants' Reply in Support of their Notice of Dispositive Case Authority in Opposition to Plaintiffs' Motion for Summary Judgment [DE 82] ("Defendants' Reply to Case Law"), Defendants' Notice of Supplemental. Authority in Support of Their Motion for Summary Judgment [DE 72] ("Defendants' Case Law in Support 1"), Defendants' Notice of Supplemental Authority in Support of Their Motion for Summary Judgment [DE 73] ("Defendants' Case Law in Support 2"), Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment [DE 79] ("Plaintiff's Response"), Plaintiffs' Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment [DE 80] ("Plaintiffs' Response to Facts"), Defendants' Reply in Support of their Motion for Summary Judgment [DE 86] ("Defendants' Reply") and is otherwise advised in the premises.

I. BACKGROUND

Plaintiffs² filed a four count Amended Complaint against Safe Hurricane Shutters, Inc. d/b/a Advanced Hurricane Protection ("Shutters"), Edward Leiva ("Leiva"), Steve Heidelberger ("Heidelberger") and Francis McCarroll ("McCarroll"). The Amended Complaint has three substantive counts alleging violations of 29 U.S.C. § 206 for unpaid minimum wages (Count I), violations of 29 U.S.C. § 207 for unpaid overtime (Count II), and violations of Article X, § 24, of the Florida Constitution (Count III).³ Plaintiffs allege that regularly worked over forty hours per week and worked hours for which they received no wages. (Amended Complaint, DE 37, p. 4-5.) Plaintiffs argue that "Defendants knowingly and willfully operated their business with a policy of not paying either the FLSA minimum wage or the overtime rate of time and one-half for hours worked in excess of the maximum hours provided by the FLSA...." (Amended Complaint, DE 37, p. 5.) It is alleged that Leiva, Heidelberger and McCarroll are personally liable because they were supervisors who were involved in the day-to-day operation of Shutters and were directly responsible for the supervision of Plaintiffs and/or had operational control of Shutters. (Amended Complaint, DE 37, p. 5.)

The main issue in the competing motions for Summary Judgment is whether this action, and the Court's subject matter jurisdiction, is governed by the Fair Labor Standard Act, 29 U.S.C. § 201 et seq. ("FLSA"). Plaintiffs argue that the Court has subject matter jurisdiction pursuant to the enterprise theory of the FLSA. (Plaintiffs' Motion, DE 59, p. 6-11.) Plaintiffs state that an alternative ground for finding FLSA coverage is Shutters' construction activity. (Plaintiffs' Motion, DE 59, p. 6-11.) Plaintiffs also aver that Defendants Leiva, Heidelberger, and McCarroll are individually liable under the FLSA. (Plaintiffs' Motion, DE 59 p. 2-6.) Defendants argue vigorously in opposition to these issues and raise additional grounds for granting summary judgment in their favor such as: Lamonica testified that he was abandoning his claims against the individual Defendants, Plaintiffs can only guess as to the hours they worked, Plaintiffs are illegal immigrant workers who are not entitled to relief under the FLSA and Gomez Morsa and others failed to appear for their depositions and should be struck as Plaintiffs. (Defendants' Motion, DE 63, p. 1-2.)

II. ANALYSIS

A. Legal Standard for Motion for Summary Judgment

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 judgment as a matter of law." Fed.R.Civ.P. 56(c). For example, if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, [then] there is `no genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When making this determination, the court "must view all the evidence and all factual inferences reasonable drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997).

Additionally, "[w]here the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted." Navarro v. Broney Automotive Repairs, Inc., 533 F.Supp.2d 1223, 1225 (S.D.Fla.2008), aff'd ___ Fed.Appx. ___, 2008 WL 2315869 (11th Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). According to the plain language of Fed. R.Civ.P. 56(e), "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). Essentially, so long as the nonmoving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "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). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

B. Enterprise Coverage

To establish a claim for overtime compensation under the FLSA, Plaintiffs must show that either they were engaged in commerce or in the production of goods for commerce (individual coverage) or, that Shutters is an enterprise engaged in commerce or in the production of goods for commerce (enterprise coverage). See 29 U.S.C. § 207(a)(1). Plaintiffs argue that the FLSA governs this action because there is enterprise coverage. (Plaintiffs' Motion, DE 59, p. 6-10; Plaintiffs' Response, DE 79, p. 2.) An enterprise engaged in commerce or in the production of goods for commerce is defined as an enterprise 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)

29 U.S.C. 203(s)(1)(A).⁴

The regulation interpreting the FLSA clarifies that:

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 or produced for 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. The term goods does not include "goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof." 29 U.S.C. 203(i); Scott v. K.W. Max Investments, Inc., 256 Fed.Appx. 244, 248 (11th Cir.2007). It appears that when analyzing what constitutes "engaged in commerce" for enterprise coverage, courts may look to the definitions used in individual coverage cases. See cf. Scott, 256 Fed. Appx. at 248 (citing Thorne v. All Restoration Servs., 448 F.3d 1264, 1265-66 (11th Cir.2006)); Bien-Aime v. Nanak's Landscaping, Inc., 572 F.Supp.2d 1312 (S.D.Fla. 2008) (citing Thorne to define "in commerce" for enterprise coverage); Polycarpe v. E & S Landscaping, Inc., 572 F.Supp.2d 1318 (S.D.Fla.2008). Therefore, to qualify as an enterprise `engaged in commerce' under the FLSA, Shutters must have two or more employees that are "directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce ... or (ii) by regularly using the...