Long v. BDP Int'l, Inc.

Decision Date22 January 2013
Docket NumberCivil Action No. H–12–1446.
PartiesKimberly S. LONG, Plaintiff, v. BDP INTERNATIONAL, INC., et al., Defendants.
CourtU.S. District Court — Southern District of Texas

OPINION TEXT STARTS HERE

Alex Mabry, The Mabry Law Firm, PLLC, Galvin B. Kennedy, Houston, TX, for Plaintiff.

Alfred John Harper, II, Alison Jacobs Gates, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This Fair Labor Standards Act (“FLSA”) case is before the Court on DefendantBDP International, Inc.'s (BDP) Motion for Summary Judgment [Doc. # 33] and Defendants BDP, Elite Group, Inc., Elite International Transportation, Inc., Elite Brokerage Services, Inc., and ETS Express, Inc.'s (collectively Defendants) Motions to Dismiss and Compel Arbitration as to Opt-in Plaintiffs Norma Salas (“Salas”) [Doc. # 34], Falynn Szelinski (“Szelinski”) [Doc. # 50], and James Cox (“Cox”) [Doc. # 51]. The Motions are fully briefed and ripe for consideration.1 The Court has carefully reviewed the record, the parties' arguments, and applicable law and concludes Defendant BDP's Motion for Summary Judgment should be denied. Defendants' Motions to Dismiss and Compel Arbitration as to Salas, Szelinski, and Cox should be granted.

I. BACKGROUND

In 2005, BDP acquired Elite Group, Inc., Elite International Transportation, Inc., Elite Brokerage Services, Inc., and ETS Express, Inc.'s (collectively “Elite”). Heathcock Decl. [Doc. # 33, Exh. A], at 2.2 Currently, Elite is a wholly owned subsidiary of BDP. Id. BDP and Elite are an integrated business enterprise that provides global logistics and transportation services for clients. Id.; First Amended Complaint [Doc. # 35], at 2.

Plaintiff Long and nine Opt-in Plaintiffs (Plaintiffs) allege that they are current and former employees who worked at Elite in Houston and who either now hold or previously held logistics coordinator, team leader, or similar positions. First Amended Complaint [Doc. # 35], at 4; see also Answer to First Amended Complaint [Doc. # 37], at 2–3. According to Plaintiffs, employees holding these positions process interstate and international shipments of goods to ensure timely delivery and compliance with applicable federal regulations. First Amended Complaint [Doc. # 35], at 4; see also Heathcock Depo. [Doc. # 59, Exh. A, at 4–5], at 16, 29. Plaintiffs explain that these employees' duties include preparing bills of lading, invoices, packing lists, and certifications of origin; handling letters of credit; ensuring compliance with hazardous material regulations; and arranging international transportation on ocean and air carriers. First Amended Complaint [Doc. # 35], at 4.

It is undisputed that Long was hired on April 16, 2006, as a logistics coordinator in Houston, Texas. Id. at 5; Answer to First Amended Complaint [Doc. # 37], at 3. She was terminated on November 23, 2011. First Amended Complaint [Doc. # 35], at 5; Answer to First Amended Complaint [Doc. # 37], at 3. During her tenure, she alleges that she, like the other Opt-in Plaintiffs, was paid on a salary basis and scheduled to work 37.5 hours per week but routinely worked over 40 hours per week. First Amended Complaint [Doc. # 35], at 5; Answer to First Amended Complaint [Doc. # 37], at 3. According to Long, the additional hours were “off-the-clock,” and were, uncompensated. First Amended Complaint [Doc. # 35], at 5.

On May 9, 2012, Long brought a putative collective class action suit against Defendantsalleging that Defendants violated the FLSA, 29 U.S.C. § 207, by failing to pay her and similarly situated employees overtime pay for the hours they worked over 40 hours per week. Complaint [Doc. # 1]. Long filed her First Amended Complaint [Doc. # 35] on September 28, 2012, and her Motion for Class Notice and for Limited Discovery” [Doc. # 54] on December 7, 2012. Defendants have filed several motions, including those addressed in this Memorandum and Order, as well as a Motion to Dismiss Opt-in Plaintiff Paula Poteet [Doc. # 44].

II. MOTION FOR SUMMARY JUDGMENTA. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment “should be rendered 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(a); Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548;Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out ‘the absence of evidence supporting the nonmoving party's case.’ Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (citations omitted).

In deciding whether a genuine and material fact issue has been created, the Court reviews the facts and inferences to be drawn from them in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-movant's burden is not met by mere reliance on the allegations or denials in the nonmovant's pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002). Likewise, “conclusory allegations” or “unsubstantiatedassertions” do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the non-moving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir.2003) (internal quotation marks and citation omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

The Court may make no credibility determinations, may not weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage, 336 F.3d at 412–13). The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. SeeFed. R. Civ. P. 56(c)(4); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.2000); Hunter–Reed v. City of Hous., 244 F.Supp.2d 733, 745 (S.D.Tex.2003). However, a party's self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000) (“A party's self-serving and unsupported claim that she lacked the requisite intent is not sufficient to defeat summary judgment where the evidence otherwise supports a finding of fraud.” (citation omitted)).

Finally, [w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” See id. (internal quotation marks and citations omitted).

B. Analysis

BDP asserts that summary judgment must be granted because Long, the Opt-in Plaintiffs, and all potential class members are employees of Elite, not BDP. Motion for Summary Judgment [Doc. # 33], at 2–3. With certain exceptions not here pertinent, the FLSA bars employers from employing an employee “who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer...

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