Powell v. Carey Intern., Inc., No. 05-21395-CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtPatricia A. Seitz
Citation514 F.Supp.2d 1302
Docket NumberNo. 05-21395-CIV.
Decision Date01 February 2007
PartiesGeorge POWELL et al., Plaintiffs, v. CAREY INTERNATIONAL, INC., et al., Defendants.
514 F.Supp.2d 1302
George POWELL et al., Plaintiffs,
v.
CAREY INTERNATIONAL, INC., et al., Defendants.
No. 05-21395-CIV.
United States District Court, S.D. Florida.
February 1, 2007.

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Chris Kleppin, Harry O. Boreth, Glasser Boreth Ceasar & Kleppin, Plantation, FL, for Plaintiffs.

Kristy Marie Johnson, Patricia Halvorson Thompson, Michael Adam Shafir, Patricia Halvorson Thompson, Carlton Fields, Miami, FL, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

PATRICIA A. SEITZ, District Judge.


THIS MATTER is before the Court on the parties' cross motions for summary

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judgment primarily on the issue of damages, [DE 272, 274]. The parties' dispute two critical components for determining the amount of overtime wages. First, they disagree as to the applicable regulation for determining their regular hourly rate of pay — whether 29 C.F.R. § 778.109 applies because Plaintiffs were paid in multiple ways, which results in time and half overtime pay, or whether 29 C.F.R. § 778.112 applies because Plaintiffs were paid by the job, which results in half overtime pay. Second, they contest which work activities are compensable, which determines the number of hours worked per week, which in turn is divided into the weekly compensation to ascertain the regular hourly rate of pay.

Having reviewed the motions, the responses and the replies thereto, the entire factual record and the relevant legal authorities, the Court finds that pursuant to § 778.112, Plaintiffs' are compensated on a per job basis. Therefore, any overtime hours worked are compensated at one half of the hourly rate of pay multiplied by the number of hours worked overtime. The per job pay consists of the base percentage plus the fixed gratuity with expenses for tolls, parking fees and fuel surcharges netted out. Additionally, the Court finds that Plaintiffs are entitled to be compensated for the following activities: driving with customers in the vehicle, driving between jobs, attending mandatory meetings, waiting for customers or being engaged to wait, and waiting for no-shows or cancellations. Plaintiffs are not entitled to be compensated for commutes between work and home and time spent changing clothes. Also, the I/Os are not entitled to compensation for time spent cleaning, inspecting or maintaining their vehicle. Furthermore, issues of fact remain as to the compensability of the following activities: the time spent obtaining and placing amenities in vehicles; the time that Carey House Chauffeurs spent cleaning, inspecting and maintaining the Defendants' vehicles; the time spent calling dispatch and checking flight times; and the time spent "waiting to be, engaged." In addition, as a matter of law, Plaintiffs are not entitled to social security payments or compensatory damages for minimum or overtime wage claims. Finally, Defendants are not entitled to summary judgment regarding Plaintiff Powell's retaliation claim.

I. BACKGROUND

Plaintiffs, limousine drivers, seek overtime pay under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., from three Defendants, who were involved in the limousine transport business at the time relevant to this lawsuit1 After extensive procedural activities, both the Plaintiffs and Defendants seek summary judgment as to the calculation of the overtime hourly wage and the determination of which activities are compensable. The parties set forth the following facts.

Defendant Carey International, Inc. owns a number of subsidiary corporations that engage in limousine services. One of Carey International's subsidiaries is Defendant Carey Limousine Florida, Inc. (d/b/a Carey South Florida and successor in interest to Campanile Motor Services, Inc. and Club Limousine Service, Inc.). (Affidavit of' Robert Michael Sobol ("Sobol Decl."), December 1, 2006, ¶ 2). Defendant Vince Wolfington is the former Chief

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Executive Officer of Carey International, Inc. Throughout this Order, the term Defendants shall collectively refer to Carey International, Inc., Carey Limousine Florida, Inc. and Vincent Wolfington. Likewise, Defendant Carey Limousine Florida, Inc., when discussed individually, shall be referred to as Carey South Florida.

Plaintiffs are drivers who worked for and were paid by Carey South Florida to provide chauffeur services to Defendants' customers in South Florida. (See Fourth Amended Complaint ("FAC") ¶ 1.) Plaintiffs can be divided into two groups: those who own their vehicle ("I/Os") and those who use the vehicles owned or leased by Defendants ("Carey House Chauffeurs").2 (Sobol Decl. ¶ 3.) The Plaintiffs claim that they were employees for the purposes of the FLSA and, therefore, were entitled to overtime wages at the statutory rate for all compensable time worked.3 As part of their claims, Plaintiffs maintain their compensable hours should include the time spent adhering to Defendants various requirements concerning personal appearance, grooming, dressing, as well as vehicle maintenance, including placing the required supplies in the car. (Plaintiffs' Statement of Facts ("Plaintiffs' SOF") ¶ 1.) Plaintiffs also assert that they were required to contact dispatch prior to leaving their house. (Plaintiffs' SOF ¶¶ 4-5.)

Michael Sobol, the Vice President and General Manager of Carey South Florida, has described the manner in which Defendants assert that Plaintiffs were compensated each month.4 (Id. ¶ 9, 13.) Both Plaintiff groups received a percentage of the adjudged gross revenue that Carey South Florida received from a limousine customer for a particular trip. Those Plaintiffs who were Carey House Chauffeurs received 18% of the adjusted gross revenue received from the customer for a particular trip, plus a pre-determined gratuity (20%), plus any cash gratuity paid by the customer. (Id. ¶ 9.) The Plaintiffs who were I/Os received 60% of the adjusted gross revenue received from the customer for a particular trip, plus a pre-determined gratuity, plus any cash gratuity paid by the customer. (Id. ¶ 13.) The adjusted gross revenue is equal to the base rate charged to the customer less taxes, surcharges, commissions, discounts, rebates, tolls, parking and credit card fees. (Id.) I/Os also had a contractual obligation to maintain their vehicles in a safe, clean and presentable condition and the vehicle had to be no more than three years old. (Id. ¶ 16.) The I/Os were responsible for all fees and expenses incurred in the operation and maintenance of their vehicles,

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including expenses such as gas, licences, vehicle maintenance and repairs, parking, traffic citations and permits. (Id. ¶ 18.) Further, I/Os were required to pay for supplies, such as clothing, radios, cellular phones, beepers, umbrellas, water, magazines, candy, newspapers, and any other amenities that they chose to provide to customers. (Id. ¶ 20.) The customers were required to pay for parking and tolls, and these expenses were often advanced by the I/O during the trip. (Id. ¶ 22.) The I/O was then reimbursed when the customer paid Carey South Florida. (Id.) Also, since June 1, 2004, customers had been required to pay a fuel charge to off-set escalating fuel prices. (Id. 22.) The fuel surcharge was then paid to the I/O. (Id.)

Plaintiffs assert that in addition to being paid the fixed base percentage of the adjusted gross revenue and the gratuities, they were also paid as compensation the fuel surcharge, and hourly payments for stand-by situations, miscellaneous occurrences and wait times, and "as directed" jobs. (Plaintiffs' SOF ¶¶ 15-20.)

Each I/O's revenues and expenses were reconciled once a month and recorded in an Account Liquidation Report (the "Report"). (Id. ¶ 25.) The Report identified the vehicle revenue and fees due to the I/O ("Total Fees Due") and then subtracted all expenses that the I/O owed Carey South Florida, such as fees for creditors or vendors ("Total Deductions"). (Id. ¶¶ 28-29.) Subtracting the Total Deductions from the Total Fees Due resulted in the Net Fees Due. (Id. ¶ 29.) Gratuities are then added to the Net Fees Due which then resulted in the Total Payment Amount to the I/O. (Id. ¶ 31.) Finally, Defendants kept track of the hours that Plaintiffs worked as they performed their trips. (Id. ¶ 35.)

II. STANDARD OF REVIEW

Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits," show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Supporting and opposing affidavits must be made based upon personal knowledge. Fed.R.Civ.P. 56(e). The Supreme Court explained in Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences in the light most favorable to the party opposing the motion.

The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the nonmoving part must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir.1997).

If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. ...

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11 practice notes
  • Lassen v. Hoyt Livery, Inc., Case No. 3:13–cv–01529 (VAB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 5, 2015
    ...what he is employed to do."). The car is "the actual place where he does what he is employed to do." See Powell v. Carey Int'l, Inc., 514 F.Supp.2d 1302, 1322 (S.D.Fla.2007) (holding that time spent by limousine drivers driving from one job to another "is not excludable under the Portal–to–......
  • Kinkead v. Humana at Home, Inc., No. 3:15-cv-01637 (JAM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2020
    ...Pay by the total number of hours actually worked during the workweek for which compensation was paid." Powell v. Carey Int'l, Inc. , 514 F. Supp. 2d 1302, 1318 (S.D. Fla. 2007) (emphasis added). If the employee receives an hourly rate, then the "regular rate" is simply the hourly rate. See ......
  • N.Y. & Presbyterian Hosp. v. United States, No. 16-496T
    • United States
    • Court of Federal Claims
    • September 19, 2016
    ...Childers, 36 F. Supp. 3d at 302; Glanville v. Dupar, Inc., 727 F. Supp. 2d 596, 602 (S.D. Tex. 2010); Powell v. Carey Int'l, Inc., 514 F. Supp. 2d 1302 (S.D. Fla. 2007); Paukstis v. Kenwood Golf & Country Club, Inc., 241 F. Supp. 2d 551 (D. Md. 2003); White v. White Rose Food, a Div. of DiG......
  • Glanville v. Dupar, Inc., Civil Action No. H-08-2537
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 20, 2010
    ...could be implied under FICA. 542 F.3d at 66-67. Numerous district courts have also followed McDonald. See Powell v. Carey Int'l, Inc., 514 F.Supp.2d 1302, 1323-24 (S.D.Fla.2007); Westfall v. Kendle Int'l, CPU, LLC, 2007 WL 486606, at *17 (N.D.W.Va. Feb. 15, 2007); Berger v. AXA Network, LLC......
  • Request a trial to view additional results
11 cases
  • Lassen v. Hoyt Livery, Inc., Case No. 3:13–cv–01529 (VAB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 5, 2015
    ...what he is employed to do."). The car is "the actual place where he does what he is employed to do." See Powell v. Carey Int'l, Inc., 514 F.Supp.2d 1302, 1322 (S.D.Fla.2007) (holding that time spent by limousine drivers driving from one job to another "is not excludable under the Portal–to–......
  • Kinkead v. Humana at Home, Inc., No. 3:15-cv-01637 (JAM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2020
    ...Pay by the total number of hours actually worked during the workweek for which compensation was paid." Powell v. Carey Int'l, Inc. , 514 F. Supp. 2d 1302, 1318 (S.D. Fla. 2007) (emphasis added). If the employee receives an hourly rate, then the "regular rate" is simply the hourly rate. See ......
  • N.Y. & Presbyterian Hosp. v. United States, No. 16-496T
    • United States
    • Court of Federal Claims
    • September 19, 2016
    ...Childers, 36 F. Supp. 3d at 302; Glanville v. Dupar, Inc., 727 F. Supp. 2d 596, 602 (S.D. Tex. 2010); Powell v. Carey Int'l, Inc., 514 F. Supp. 2d 1302 (S.D. Fla. 2007); Paukstis v. Kenwood Golf & Country Club, Inc., 241 F. Supp. 2d 551 (D. Md. 2003); White v. White Rose Food, a Div. of DiG......
  • Glanville v. Dupar, Inc., Civil Action No. H-08-2537
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 20, 2010
    ...could be implied under FICA. 542 F.3d at 66-67. Numerous district courts have also followed McDonald. See Powell v. Carey Int'l, Inc., 514 F.Supp.2d 1302, 1323-24 (S.D.Fla.2007); Westfall v. Kendle Int'l, CPU, LLC, 2007 WL 486606, at *17 (N.D.W.Va. Feb. 15, 2007); Berger v. AXA Network, LLC......
  • Request a trial to view additional results

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