Rossi v. Associated Limousine Services, Inc.

• Decision Date: 05 July 2006
• Docket Number: No. 05-21004-CIV.,05-21004-CIV.
• Citation: 438 F.Supp.2d 1354
• Parties: George ROSSI, an all other similarly situated, Plaintiff, v. ASSOCIATED LIMOUSINE SEVICES, INC., a Florida corporation, and Robert Boroday, an individual, Defendants.
• Court: U.S. District Court — Southern District of Florida

438 F.Supp.2d 1354

George ROSSI, an all other similarly situated, Plaintiff, v. ASSOCIATED LIMOUSINE SEVICES, INC., a Florida corporation, and Robert Boroday, an individual, Defendants.

No. 05-21004-CIV.

United States District Court, S.D. Florida.

July 5, 2006.

COPYRIGHT MATERIAL OMITTED

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

Sara Walters, Conrad & Scherer, Fort Lauderdale, FL, Susan H. Aprill, for Defendants.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR FINAL SUMMARY JUDGMENT

BANDSTRA, Chief United States Magistrate Judge.

THIS CAUSE came before the Court on (1) Plaintiffs Motion For Partial Summary Judgment as to all Counts on the Issues of Whether he was an Exempt Employee under the Motor Carrier Exemption and the TaxiCab Exemption. Whether he was an Employee, Worked Overtime in at Least One Workweek, and Whether the Defendant Violated the Recordkeeping Provisions of the FLSA (D.E.54) filed on January 9, 2006; and (2) Defendants' Motion for Final Summary Judgment (D.E.64) filed on March 27, 2006. In accordance with the consent to jurisdiction of the parties, this action was referred to United States Magistrate Judge Ted E. Bandstra by the Honorable Jose E. Martinez on June 28, 2005, for all matters to which the parties consented including motions for summary judgment in accordance with 28 U.S.C. § 636(c). Accordingly, the undersigned conducted a hearing on theses motions on May 11, 2006. Having considered the parties summary judgment motions, the pertinent portions of the record and applicable law, it is hereby

ORDERED AND ADJUDGED that:

(1) Plaintiffs Motion For Partial Summary Judgment as to all Counts on the Issues of Whether he was an Exempt Employee under the Motor Carrier Exemption and the TaxiCab Exemption, Whether he was an Employee, Worked Overtime in at Least One Workweek, and Whether the Defendant Violated the Recordkeeping Provisions of the FLSA is GRANTED with respect to the issues of whether he was an exempt employee under the Motor Carrier Exemption and the TaxiCab exemption and whether he was an employee but DENIED in all other respects; and

(2) Defendants' Motion for Final Summary Judgment is DENIED.

INTRODUCTION

On May 23, 2005, George Rossi ("plaintiff") filed a first amended complaint against Associated Limousine Services, Inc. ("Associated") and its President and Chief Executive. Robert Boroday, (jointly "defendants") alleging violations of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 201, et seq. Associated is a Florida corporation engaged in the business of providing chauffeured transportation to its customers. Plaintiff was employed by Associated as a chauffeur from approximately January 2005 to March 2005. Plaintiff alleges that during the course of his employment with Associated he routinely worked in excess of forty hours per week. Plaintiff further alleges that Associated failed to compensate him at the statutory rate of time and one-half for those hours worked in excess of forty as required by the FLSA. Plaintiff alleges that he is entitled to be compensated at the rate of time and one-half for those hours expended on transporting customers as well as for the hours expended on "waiting" and "on call" time. See Am.Cpt, ¶ 29. In addition, plaintiff alleges that Associated provided no compensation at all for certain hours worked including time expended for "no shows." Am.Cpt. ¶ 33.

Based on these and other allegations, plaintiff brought this action against his former employer seeking an award of overtime backpay, liquidated and compensatory damages, costs and attorneys' fee for failure to pay unpaid and overtime wages as required by the FLSA, 29 U.S.C. §§ 207 & 216 (Count I), and for wage rate and minimum wage rate violations of the FLSA (Count II).

On June 6, 2005, Associated filed its answers essentially denying the allegations of the complaint and asserting several affirmative defenses including, inter alia, the defenses that this Court does not have subject matter jurisdiction because the activities of plaintiff are exempt from the FLSA under both the "motor carrier" exemption and the "taxicab operator" exemption. See 29 U.S.C. §§ 213(b)(1) & 213(b)(17), respectively.

On January 9, 2006, plaintiff filed the instant motion for partial summary judgment arguing that it is undisputed that he was an employee of Associated¹ and was never paid for overtime during the course of his employment. Plaintiff further contends that he was not exempt from the FLSA's overtime provisions and, thus, is entitled to judgment as a matter of law. Specifically, plaintiff argues that he was not exempt under the motor carrier exemption set forth in 29 U.S.C. § 213(b)(1) because he never drove across state lines. Plaintiff further argues that he was not exempt under the taxicab operator exemption set forth in 29 U.S.C. § 213(b)(17) because Associated is in the business of operating limousines, not taxicabs, and he only drove limousines for Associated. In addition, plaintiff contends that Associated admitted that it violated the record keeping requirements of the FLSA set forth in 29 U.S.C. § 211(c) so that he is entitled to summary judgment on this claim. Finally, plaintiff contends that the evidence demonstrates that he worked overtime hours and, thus he is entitled to summary judgment on his claim for overtime compensation.

On March 27, 2006, defendants filed their [cross] motion for final summary judgment, arguing that defendant is exempt from the overtime and minimum wage provisions of the FLSA under the motor carrier exemption and the taxicab exemption. Alternatively, defendants argue that even if they are not exempt from the overtime and minimum wage requirements of the FLSA, plaintiff has not established a prima facie case that he worked any overtime hours for which he has not already been compensated.

STANDARD OF REVIEW

The court in reviewing a motion for summary judgment is guided by the standards set forth in Rule 56(c) of the Federal Rules of Civil Procedure which provides as follows:

. . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .

The moving party bears the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Further, in addressing whether the moving party has satisfied this burden, the court is required to view the evidence and all factual inferences arising therefrom in the light most favorable to the non-moving party. Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368 (11th Cir.1982), citing, Adickes v. S.H. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608; Augusta Iron & Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988). If the record presents issues of material fact the court must deny the motion. Adickes v. S.H. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608. The nonmoving party, however, cannot rest upon mere allegations, but must rebut any facts properly presented by the moving party through affidavits or other evidence demonstrating the existence of a genuine and material issue of fact for trial. Id. at 398 U.S. 155, 90 S.Ct. at 1607. Moreover, summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential 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, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

If the moving party does not bear the burden of proof at trial, it satisfies its initial burden on summary judgment by either of two methods: (1) by producing affirmative evidence negating a material fact that is necessary to the non-movant's case, thus demonstrating that the nonmoving party will be unable to prove its case at trial, or (2) by affirmatively showing the absence of evidence in the record to prove a fact necessary to the non-movant's case, and thus to support a judgment for the moving party on the issue in question. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir.1993). If the moving party uses the first method, the non-moving party "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to negated." Id. at 1116. If the second method is used, the non-moving party may either demonstrate that the record contains evidence that was "overlooked or ignored" by the movant, or by "com[ing] forward with additional evidence sufficient to withstand a directed verdict at trial based on the alleged evidentiary deficiency." Id.

While the burden on the movant is great, the non-moving party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is "merely colorable" or "not significantly probative," is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir.1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment). The non-movant may not rest on mere allegations at this point, but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).

FINDINGS AND CONCLUSIONS

I. Exemptions to Plaintiff's Overtime Compensation Claim

Plaintiff's claim for overtime compensation is premised on Section 207(a) of the FLSA which provides, in relevant part:

Except as otherwise provided in this section, no employer shall employ any of his employees who in...