Mcmahan v. Adept Process Serv. Inc.

• Decision Date: 24 May 2011
• Docket Number: Civil No. 2:10cv278.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Eric McMAHAN, et al., Plaintiffs,v.ADEPT PROCESS SERVICES, INC., Defendant.

786 F.Supp.2d 1128

2011 A.M.C. 2732

Eric McMAHAN, et al., Plaintiffs,

v.ADEPT PROCESS SERVICES, INC., Defendant.

Civil No. 2:10cv278.

United States District Court, E.D. Virginia,Norfolk Division.

May 24, 2011.

Keith John Leonard, Huffman & Huffman, Newport News, VA, for Plaintiffs.Herbert Allen Black, III, Emily Kate Hargrove, Charles Bennett Molster, III, Winston & Strawn LLP, Washington, DC, for Defendant.

ORDER

HENRY COKE MORGAN, JR., Senior District Judge.

This case arises under the Fair Labor Standards Act (“FLSA”). 29 U.S.C. §§ 201, et seq. Defendant Adept Process Services, Inc. (“APS”) moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”) on the ground that Plaintiffs' asserted claims for overtime pay are expressly barred by 29 U.S.C. § 213(b)(6), which exempts from the FLSA's overtime pay requirements “any employee employed as a seaman.” Docs. 21, 22; 29 U.S.C. § 213(b)(6). For the reasons contained herein, the Court GRANTS APS's motion for summary judgment.

I. Procedural History

On June 15, 2010, Plaintiffs Eric L. McMahan (“McMahan”), James E. Cooke (“Cooke”), Christopher E. Brown (“Brown”), Joshua Wiggins (“Wiggins”), Alexander F. Barranger (“Barranger”), Peter Milton (“Milton”), Jeffrey Harrell (“Harrell”), and Alex Rogers (“Rogers”) (collectively, “Plaintiffs”) filed their complaint against APS.¹ Doc. 1. Plaintiffs McMahan, Cooke, Harrell, and Rogers are, or were, employed by APS as Captains at Naval Station Norfolk in Norfolk, Virginia.² Doc. 22. Plaintiffs Brown, Wiggins, Barranger, and Milton are, or were, employed as deckhands.³Id. Collectively, Plaintiffs claim that APS willfully violated the overtime pay provisions of the FLSA and is, therefore, liable to Plaintiffs “in the total amount of Plaintiffs' unpaid overtime compensation and an additional equal amount as liquidated damages, for the three year period immediately preceding the commencement of this action, as well as an amount for reasonable attorney's fees and interest, together with the costs and expenses of this action.” ⁴ Doc. 1 at ¶¶ 34–36.

On March 24, 2011, APS moved for Rule 56 summary judgment on the ground that Plaintiffs' claims for overtime pay are barred by the “seaman exemption” in 29 U.S.C. § 213(b)(6). Doc. 22 at 1. Plaintiffs filed a response on April 4, 2011, contending that they are and were not “seamen” for FLSA exemption purposes and are, therefore, entitled to overtime pay. Doc. 23 at 45. APS filed a reply on April 6, 2011. Doc. 25. A hearing on APS's motion was held on May 9, 2011.

II. Factual Background

In accordance with Local Civil Rule 56(B), the Court assumes as admitted the facts set forth at pages 311 of APS's memorandum in support of its motion for summary judgment. Doc. 22. APS's “Statement of Undisputed Facts” is adopted in whole because Plaintiffs' responsive brief contains no specifically captioned section listing the material facts that it wishes to dispute, and it does not otherwise appear that Plaintiffs dispute such facts.⁵See Blaustein & Reich, Inc. v. Buckles, 220 F.Supp.2d 535, 539 (E.D.Va.2002) ( “[N]oncompliance with the requirements set forth in Local Rule 56(B) triggers the consequence set forth in that rule, e.g. the facts identified by the Defendant as material facts as to which there is no genuine issue in its opening brief are admitted.”), aff'd, 365 F.3d 281 (4th Cir.2004). ⁶ Plaintiffs' brief and oral argument assumes the accuracy of APS's “Statement of Undisputed Facts,” and Plaintiffs base their argument upon their interpretation of such facts. The admitted facts are as follows:

1. The Boats operated by the Plaintiffs are 29 foot mini-tugs, each of which has an enclosed pilothouse, radar, GPS navigation system, radio, depthsounder, and loudhailer. The Boats are self-propelled by twin Cummins QSL9 diesel engines, rated for 285 horsepower at 1800 engine rpm, with fixed nozzles and rudders. The Boats have deck fittings and fendering systems to support their work as tug boats, including forward and aft tow posts and four quarter (mooring) posts, fittings at the bow for pushing barges and other tows ahead (referred to as “push knees”), and six-inch thick rubber fendering around the hull and on the push knees. The propulsion and fittings are rated for a 14,000 lbs. of bollard pull. The vessels have hoisting fittings, deck worklights, spotlights, and navigation lights.

2. APS crews the Boats with two-person Boat Crews, each consisting of a Captain and a Deckhand.

3. During weekdays, the Navy typically requires APS to have up to five Boat Crews available to carry out the scheduled and unscheduled Moves.⁷

4. Each Captain is required to hold valid U.S. Coast Guard issued licenses and certifications.

5. The 2007 Contract, the 2010 Renewal, and all of the renewals in between specify that the Boat Crews are to work a twelve-hour day, paid at a day rate. They further specify “overtime hours” as “hours in excess of the 12–hour work day.”

6. The Boat Crew manning was specified by the 2007 Contract and its attached “Wage Determination 94–0196 17 Vessels,” (the “Wage Determination”) issued by the U.S. Department of Labor (“DOL”).

7. The Wage Determination is for individuals who are “employed on contracts for special project vessels, tugboats, and other coastal vessels.”

8. The Wage Determination states that the “daily rate cannot be computed to an hourly rate.”

9. The Captains and Deckhands are considered seamen under the Jones Act (46 U.S.C. § 30104) and are covered under APS's marine employer's liability insurance.

10. Many of the Boat Crews treat their time operating Boats on behalf of APS as qualifying experience and/or training to meet Coast Guard requirements to obtain or maintain Coast Guard Merchant Marine Officer licenses.

11. All of the Plaintiffs are (or were) at-will employees of APS and are (or were) employed as Captains or Deckhands.

12. All of the Plaintiff are, or were, members of the Boat Crews employed by APS to operate the Boats at Norfolk Naval Station in Norfolk, Virginia.

13. All of the Captain Plaintiffs were hired by APS as U.S. Coast Guard licensed Captains to operate the Boats.

14. All of the Captain Plaintiffs held U.S. Merchant Marine Officer Master's Licenses during the times that they worked for APS.

15. All of the Deckhand Plaintiffs obtained Merchant Mariner Documents as Ordinary Seamen either before or during their employment with APS.

16. The sole duty of Deckhand Plaintiffs Wiggins, Brown, Barranger, and Milton during their employment with APS was to serve as Deckhands on the Boats. They performed no other duties as employees of APS.

17. During the working day when not operating the Boats, the Boat Crews could wait in the Boathouse, sit in their cars, listen to the radio, carry out personal errands, work out, or otherwise use their time as the wished, subject only to the constraint that they must remain in the vicinity of the Naval Base and be available for calls so that they could respond if needed to operate the Boats for unscheduled Moves.

18. The sole duty of each of Captains Rogers, Harrell, and Cooke during their employment with APS was to serve as a Captain. They performed no other duties as employees of APS.

19. Captain McMahan's sole duty with APS throughout his employment was to serve as a Captain; during a portion of his employment with APS he also served as a Designated Examiner. He performed no other duties as an employee of APS.

20. The duties of the Captains employed by APS at Naval Station Norfolk have been, and are, to operate the Boats, to prepare their assigned Boats for upcoming Moves, and to stand by to operate the Boats.

21. The Moves carried out by the Captains using the Boats included navigating the Boats on the waters of Naval Station Norfolk and adjacent waters, towing PSB ⁸ sections, towing barges, towing paint floats, towing floating fenders, and from time to time towing miscellaneous objects.

22. An operation carried out in connection with the PSB sections typically involves navigating the Boat from the dock or other location to the designated PSB section, unmooring the PSB section from a buoy, tying up the PSB section to the Boat by tying lines from the PSB section to bitts and/or cleats on the Boat, using the engines and steering of the Boat to maneuver and tow the PSB section clear of the buoy, hold it in position as directed, then tow it back to the buoy, cast off the PSB section from the Boat, and moor it to the buoy.

23. The operation of the Boats calls for the Captains to exercise seamanship and professional judgment, to steer, navigate, and maneuver the Boats, to operate the Boats in accordance with the Navigation Rules, to avoid collisions and interference with other vessels, to monitor and operate the Boats' radios, to operate the Boats' radars, to operate the Boats' GPS navigation equipment, and to perform towing and related maritime operations.

24. The Captains, as the Masters of the Boats to which they were assigned, exercised command and responsibility for the safety of the Boat and its crew.

25. The Captains also maintained various records related to their operation of the Boats, including incident reports, administrative boat logs, and maintenance logs.

26. During the times the Captains were not underway operating the Boats, they had no other duties other than to keep the Boats ready to get underway, and to wait for additional underway operations.

27. The duties of the Deckhands employed by APS at Naval Station Norfolk have been, and are, to assist the Captains with the operation of the Boats under the direction of the assigned Captain.

28. The Deckhands work under the direction of the assigned Captain in the day-to-day operation of the Boats.

29. The tasks performed by the Deckhands include crewing the Boat with the assigned Captain, checking the equipment on the Boat at the start of each work day to ensure that the Boat is ready for operations, checking oil...