Zarate v. Jamie Underground, Inc.

• Citation: 629 F.Supp.2d 1328
• Decision Date: 23 June 2009
• Docket Number: Case No. 08-14212-CIV.
• Parties: Santos ZARATE, Plaintiff, v. JAMIE UNDERGROUND, INC., a Florida corporation, and John A. Coniglio, individually, Defendants.
• Court: U.S. District Court — Southern District of Florida

629 F.Supp.2d 1328

Santos ZARATE, Plaintiff, v. JAMIE UNDERGROUND, INC., a Florida corporation, and John A. Coniglio, individually, Defendants.

Case No. 08-14212-CIV.

United States District Court, S.D. Florida, Ft. Pierce Division.

June 23, 2009.

David Spalter, Jill S. Schwartz & Associates, P.A., Winter Park, FL, for Plaintiff.

Chris Kleppin, Glasser, Boreth & Kleppin, P.A., Plantation, FL, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOSE E. MARTINEZ, District Judge.

THIS CAUSE came before the Court upon Plaintiffs Motion for Partial Summary Judgment (D.E. No. 26) and Defendants' Motion for Summary Judgment (D.E. No. 27). On June 13, 2008, Plaintiff filed the above-captioned action in this Court, alleging that Defendants, Jamie Underground, Inc., ("Corporate Defendant" or "JUI") and John A Coniglio ("Individual Defendant" or "Coniglio") failed to pay him overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (D.E. No. 1).

I. Factual Background

The corporate Defendant, JUI, is a local ditch-digging and cable-burying business located in Martin County, Florida. (Coniglio Decl. ¶ 12). JUI buries underground utilities, such as pipes, cables, and wires. (Coniglio Dep. 7-8). The specific service provided by JUI workers, such as Plaintiff, is digging ditches, putting cables in the ditches, and refilling the ditch. (Coniglio Dep. 29, 24-25); (Coniglio Decl. ¶ 12); (Zarate Dep. 63). JUI workers do not hook up the buried cables to other cable or commercial devices and do not perform any action designed to make the cable function or communicate across state lines. (Coniglio Decl. ¶ 12); (Zarate Dep. 63, 147-48). After JUT's services are completed, the homeowner is not yet able to view or use cable television, the telephone, or the internet, because the wires must be connected to the necessary devices. (Coniglio Dep. 83); (Coniglio Decl. ¶ 12).

Plaintiff was hired by JUI as a laborer in 2004. (Zarate Dep. 11, 62); (Coniglio Decl. ¶ 4). He worked for JUI in that capacity until December 2007, with the exception of the period between October 2005 and February 2006. (Zarate Dep. 11-12). Like the other workers, he dug ditches and buried cables. JUI paid him a combination of hourly wages and piece rates. (Coniglio Dep. 39-41). When he performed "production work" such as digging a trench, he received a piece rate based upon the length of the trench and the size of the cables. Id. When he performed other functions, such as clean-up duties, he received an hourly rate. Id. Plaintiff asserts that he often worked in excess of 40 hours per week and was never paid overtime on those weeks.

Individual Defendant John Coniglio has an ownership interest in JUI. (Coniglio Decl. ¶ 3). Coniglio testified that he did not have any operational control over the day-to-day ditch digging performed by the corporate Defendant. (Coniglio Decl. ¶ 13). Coniglio testified that he went to the work sites on a "very infrequent" basis, but Plaintiff testified that he saw Coniglio at the work site once a week. (Coniglio Dep. 37); (Zarate Dep. 32). Coniglio testified that it was not his role to fire people, although he had the power to do so. (Coniglio Dep. 34, 53). Coniglio testified that his co-owner set the pay rates and the schedule, but the co-owner discussed the pay rates with him and he had the power to object to them. (Coniglio Dep. 52-53).

II. Preliminary Matters

On April 6, 2009, Magistrate Judge Lynch denied Plaintiffs motion to compel, requesting further information in answer to interrogatories (D.E. No. 15). The same day, Plaintiff filed an objection to Magistrate Judge Lynch's denial. (D.E. No. 16). This objection was incorrectly docketed as a "Memorandum of Law," which prevented it from coming to the Court's attention in a timely manner (D.E. No. 16). A review of the motion to compel (D.E. No. 12), however, show's no error on Judge, Lynch's part. Magistrate Judge Lynch determined in his Order that Plaintiffs Requests for Admissions and Interrogatories were worded in such a way as to inappropriately "in some fashion, define what is or is not `enterprise coverage'" and that Defendants responded adequately and reasonably "in light of the questions as worded." (D.E. No. 15).

An examination of the Motion to Compel reveals the source of Judge Lynch's concerns. Plaintiffs Requests for Admissions asked Defendants to admit that JUI employed "two or more individuals who, in performing their job duties, handled or worked on goods [or materials] that were produced for commerce." Defendants denied this. To admit it would have been tantamount to admitting enterprise coverage, as discussed infra Sec. IV. Then, in Interrogatories, Plaintiffs referred back to those Requests for Admissions and asked that Defendants list all goods or materials handled or worked on by employees, their state of origin, and the factual basis for the assertion that the materials were not produced for commerce.

The Court gathers that Judge Lynch's concern about the wording stems from the fact that the Interrogatories explicitly related back to Requests for Admissions that were worded in terms of enterprise coverage. Manufacturers and wholesalers that supply goods and materials often produce those items "for commerce," as defined by the FLSA, giving rise to enterprise coverage. When the items they manufacture and supply come to rest in local retailers, and businesses such as Defendant purchase those goods and materials from the local retailers for local uses, the purchaser business is not handling those items "for commerce" as defined by the FLSA. See Scott v. K.W. Max Investments, Inc., 256 Fed.Appx. 244, 248 (11th Cir.2007); Polycarpe v. E & S Landscaping Service, Inc., 572 F.Supp.2d 1318, 1321 (S.D.Fla.2008). This is true regardless of the state of origin of the items and regardless of the fact that the items may have traveled in interstate commerce to reach the local retailers. Id. Thus, as Magistrate Judge Lynch found, Defendants' response, which did not delve into the sources of the items they bought from local retailers or into legal arguments regarding why locally purchased goods were "for commerce," was reasonable.

Similarly, the Court does not find clear error in Judge Lynch's failure to require Defendants to list every single good or material used by every single employee. Such a list would be extremely large, ranging from paper clips to gasoline, and it would have little bearing on the "for commerce" portion of enterprise liability. The fact that employees of a company use credit cards, make telephone calls, utilize the internet, or buy gasoline will not in itself qualify the company for enterprise coverage. Polycarpe, 572 F.Supp.2d at 1321. Even some out-of-state purchases, such as "a local business's occasional or sporadic ordering of office supplies from an out-of-state vendor[, are] not sufficient to confer jurisdiction under the FLSA." Williams v. Signature Pools & Spas, Inc., 615 F.Supp.2d 1374, 1380 (S.D.Fla.2009). Plaintiffs did not ask where or how Defendants purchased, leased, or manufactured the goods and materials their employees used. Rather, Plaintiffs asked what those materials were, where they originated, and how Defendants factually justified denying that they were produced "for commerce." The Court presumes, from Judge Lynch's ruling, that he was concerned that requiring the Defendants to answer the question in the way which Plaintiffs sought to compel would require Defendants either to reveal their legal arguments or to risk contradicting themselves. Thus, the Court does not find clear error in his ruling.

The Court notes, finally, that in Defendant Coniglio's sworn declaration, he categorically asserted that none of the products, machines, tools, and other goods used by Defendants' employees were ordered or purchased from out of state. (Coniglio Decl. ¶ 8). Instead, he asserted that all of those products, machines, tools, and other goods were purchased or leased in Florida. Id. He did not tailor or restrict this statement to any particular type of employee, which is consistent with Defendant's responses to the Requests for Admissions. As Defendants have pointed out, Plaintiff has deposed Defendant Coniglio, during which Plaintiff had the opportunity to and did to a certain extent clarify what materials JUI used and where they were obtained. Thus, the absence of a more comprehensive Interrogatory response did not prejudice Plaintiff.

Coniglio testified that JUI purchased or leased all their tools and supplies at local area Florida retailers. (Coniglio Decl. ¶¶ 7, 8), Coniglio testified that none of JUI's employees engaged in interstate commerce as part of the business and that JUI only worked and solicited clients in the South Florida area. (Coniglio Decl. ¶¶ 9, 10). JUI's clients, rather than JUI, provided the cable that was buried. (Coniglio Decl. ¶ 12).

III. Standard

Summary judgment shall be rendered "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." Fed.R.Civ.P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and "must resolve all reasonable doubts about the facts in favor of the non-movant." Un. of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990).

"By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v....