St. Elien v. All Cnty. Envtl. Servs., Inc.

• Decision Date: 31 March 2020
• Docket Number: CASE NO. 19-CIV-60630-RAR
• Citation: 477 F.Supp.3d 1283
• Court: U.S. District Court — Southern District of Florida
• Parties: Wendy ST. ELIEN, Plaintiff, v. ALL COUNTY ENVIRONMENTAL SERVICES, INC., et al., Defendants.

477 F.Supp.3d 1283

Wendy ST. ELIEN, Plaintiff,

v.ALL COUNTY ENVIRONMENTAL SERVICES, INC., et al., Defendants.

CASE NO. 19-CIV-60630-RAR

United States District Court, S.D. Florida.

Signed March 31, 2020

Elliot Ari Kozolchyk, Fort Lauderdale, FL, for Plaintiff.

James Gerald Jean-Francois, James Jean-Francois PA, Hollywood, FL, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW

RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE

What evidence must a plaintiff put forth at trial to establish liability under the Fair Labor Standards Act, 29 U.S.C § 201, et seq. ("FLSA"), so as to require submission of their case to the jury? Well, for starters, they must show that the FLSA actually applies as a matter of law. Here, after putting on her case for two days, Plaintiff Wendy St. Elien believed that she had introduced sufficient evidence to support a finding of individual coverage under the FLSA. However, this Court disagreed upon granting Defendants’ ore tenus Motion for Judgment as a Matter of Law under Rule 50(a) of the Federal Rules of Civil Procedure ("Motion"). As explained on the record at trial, and more fully detailed herein, it is hereby

ORDERED AND ADJUDGED that Defendants’ Motion for Judgment as a Matter of Law is GRANTED .

BACKGROUND

Defendant All County Environmental Services, Inc. ("All County") is a small business that provides pest control services to residential and commercial clients throughout Southeast Florida from its sole office in Broward County. See Defendants’ Statement of Undisputed Material Facts [ECF No. 22] at ¶ 1; Plaintiff's Response to Defendants’ Statement of Undisputed Material Facts [ECF No. 25] at ¶ 1. Plaintiff Wendy St. Elien worked as an Administrative Assistant in the office. Id. Plaintiff filed suit against All County, its President Victor West III, and his wife Dahlia West, alleging that Defendants knowingly and willfully failed to pay her full and proper overtime wages in violation of the FLSA. Compl. [ECF No. 1] at ¶ 11.

Defendants moved for summary judgment, maintaining that All County did not earn enough money to fall under the ambit of the FLSA, and the lack of "enterprise coverage" precluded liability as a matter of law. See Motion for Summary Judgment [ECF No. 21] at 1-2. In denying Defendants’ Motion for Summary Judgment, the Court noted that while All County did not earn enough to subject it to "enterprise coverage" under the FLSA, a question of fact remained as to whether Plaintiff's interstate contacts were sufficient to trigger "individual coverage" under the statute. See Order Denying Summary Judgment [ECF No. 63] at 4. The case proceeded to trial on May 9, 2020. [ECF Nos. 75-76].

At trial, Plaintiff testified that she placed phone calls to out-of-state customers three to five times per week. These calls were largely made to obtain approval to process credit card payments for work done locally. Plaintiff further testified that many of these out-of-state customers were "snowbirds" who lived in Florida during the winter. The Court, in an attempt to clarify Plaintiff's testimony, asked Plaintiff about the nature of her out-of-state calls and whether she had any other interstate contact:

The Court: So, is it fair to say that the business transactions you did with out-of-state individuals while you worked at this business really consisted of getting credit card authorization to bill?

Plaintiff: Correct.

Plaintiff proceeded to confirm that she would call customers who had a pending invoice, obtain their approval to use the credit card they had on file, and process said credit card payments. Plaintiff also communicated with customers or customer-representatives in Georgia, New York, and Canada in order to obtain permission for All County to enter their properties in South Florida.

Importantly, none of these contacts ever implicated the interstate movement of goods. Defendants moved for Judgment as a Matter of Law at the conclusion of Plaintiff's case, arguing that Plaintiff failed to meet her burden to establish individual coverage and thus, Defendants could not be liable as a matter of law given the inapplicability of the FLSA.

LEGAL STANDARD

"The standard for judgment as a matter of law mirrors that of summary judgment in that the non-movant must do more than raise some doubt as to the existence of facts but must produce evidence that would be sufficient to require submission of the issue to a jury." Thorne v. All Restoration Servs., Inc. , 448 F.3d 1264, 1266 (11th Cir. 2006) (citing Matsushita Elec. Ind. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Although the Court looks at the evidence in the light most favorable to the non-moving party, "the non-movant must put forth more than a mere scintilla of evidence suggesting that reasonable minds could reach differing verdicts." Id. (quoting Abel v. Dubberly , 210 F.3d 1334, 1337 (11th Cir. 2000) ). "Therefore, a substantial conflict in the evidence is required before a matter will be sent to the jury, and the grant of a Rule 50 motion is proper when the evidence is so weighted in favor of one side that that party is entitled to succeed in his or her position as a matter of law." Id.

A court may grant a motion for judgment as a matter of law in a jury trial when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Berrocal v. Moody Petroleum, Inc. , No. 07-22549-CIV, 2010 WL 1372410, at *4 (S.D. Fla. Mar. 31, 2010) (citing Akouri v. State of Florida Dept. of Transp. , 408 F.3d 1338, 1343 (11th Cir. 2005) ; FED. R. CIV. P. 50(a) ). "In deciding a Rule 50 motion, a court should review all of the evidence in the record, draw all reasonable inferences in favor of the non-moving party, and disregard all evidence favorable to the moving party that the jury is not required to believe. Id. (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

ANALYSIS

The FLSA regulates activities "constituting" interstate commerce, not activities "merely affecting" it. Thorne , 448 F.3d at 1266 (quoting McLeod v. Threlkeld , 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943) ); see also Zarate v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1335 (S.D. Fla. 2009) (citing Johnston v. Spacefone Corp., 706 F.2d 1178, 1182 (11th Cir. 1983) ) ("Congress's primary purpose in refusing to extend FLSA's coverage to its constitutional maximum was to leave regulation of ‘local’ business to the states."). "To establish an FLSA claim, a plaintiff must show, among other things, either ‘individual coverage’ or ‘enterprise coverage.’ " Mendoza v. Disc. C.V. Joint Rack & Pinion Rebuilding, Inc. , 101 F. Supp. 3d 1282, 1286 (S.D. Fla. 2015) (quoting 29 U.S.C. § 207(a)(1) ).

Enterprise coverage may be shown by demonstrating that a defendant enterprise "(i) 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) has an annual gross volume of sales made or business done [ ] not less than $500,000." Id. (quoting 29 U.S.C. § 203(s)(1)(A) ) (emphasis added) (internal quotations omitted). The Court has already held that Plaintiff cannot establish enterprise coverage as to All County because All County makes less than $500,000 a year. See Order Denying Summary Judgment [ECF No. 63] at 4. Consequently, Plaintiff must prove the existence of individual coverage to establish Defendants’ liability under the FLSA.

In order to determine if individual coverage exists, the "court must focus its inquiry on the activities of the employee and not on the employer." Martin v. Briceno , No. 11-23228-CIV, 2014 WL 2587484, at *3 (S.D. Fla. June 10, 2014). For an employee to be "engaged in commerce" for purposes of establishing individual coverage under the FLSA, the employee "must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g. , transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g. , regular and recurrent use of interstate telephone, telegraph, mails, or travel." Thorne , 448 F.3d at 1266 (emphasis added) (internal citations omitted); see also Josendis v. Wall to Wall Residence Repairs, Inc. , 662 F.3d 1292, 1315 (11th Cir. 2011) (reiterating that "indirect or sporadic involvement" in interstate commerce is insufficient to establish individual coverage under the FLSA). The employee bears the burden of proof "to establish that they were engaged in interstate commerce, or in the production of goods, and that such production was for interstate commerce." Joseph v. Nichell's Caribbean Cuisine, Inc. , 862 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012) (citing D.A. Schulte, Inc. v. Gangi , 328 U.S. 108, 121, 66 S.Ct. 925, 90 L.Ed. 1114 (1946) ; Warren–Bradshaw Drilling Co. v. Hall , 317 U.S. 88, 90, 63 S.Ct. 125, 87 L.Ed. 83 (1942) ).

Here, considering the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff failed to establish that she is covered by the FLSA. Plaintiff argues that she has proven individual coverage exists, because she spoke with out-of-state customers 3-5 times per week. See St. Elien Aff. [ECF No. 25-1] at ¶ 5 ("As part of my employment, I regularly communicated with customers and vendors of Defendants that were located outside Florida at least 3-5 times per week."). At trial, Plaintiff testified that she would occasionally call customers or customer representatives who were in another state to obtain approval to process their credit cards or enter their property.¹ Several of these out-of-state customers were "snowbirds" who lived in South Florida for part of the year:

The Court: Am I correct that these out-of-state entities really were

...