United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE
August 2014 to October 2016, the Randolph Hotel in St.
Petersburg, Florida, employed Damon Clements as a desk clerk.
Clements answered the phone, occasionally ordered cleaning
products from a supplier in Orlando, and checked guests into
the 44-room, extended-stay hotel. Alleging an FLSA violation,
Clements sues (Doc. 1) the Randolph Hotel, which moves (Doc.
21) for summary judgment and argues that neither
“enterprise” nor “individual”
coverage applies to Clements.
FLSA covers a company if the company's gross receipts
equal or exceed $500, 000 and if the company employs any
person who either “engage[s] in commerce or in the
production of goods for commerce” or “handl[es],
sell[s], or otherwise work[s] on goods or materials that have
been moved in or produced for commerce.” 29 U.S.C.
§ 203(s)(1)(A)(i) and (ii). In 2013, 2014, and 2015, the
hotel earned $212, 657; $284, 073; and $244, 302,
respectively. (Docs. 22-4 through 22-6, which show the
company's gross receipts) Because the hotel earned less
than $500, 000 annually during Clements's employment,
enterprise coverage is inapplicable.
the FLSA covers an employee “engaged in commerce or the
production of goods for commerce.” 29 U.S.C.
§§ 206(a) and 207(a)(1). Under Section 203(b),
“commerce” means “trade, commerce,
transportation, transmission, or communication among the
several States or between any State and any place outside
thereof.” Not every employee who interacts with a
person or company in another state engages in interstate
commerce. McLeod v. Threlkeld, 319 U.S. 491, 493
(1943) (explaining that “Congress did not intend that
the regulation of hours and wages should extend to the
furthest reaches of federal authority”). To benefit
from the FLSA's minimum-wage and overtime provisions, an
employee must “regularly” participate in
interstate commerce, for example, by frequently calling a
person in another state. Thorne v. All Restoration Serv.,
Inc., 448 F.3d 1264, 1266 (11th Cir. 2006).
Hotel argues that Clements engaged too irregularly with
non-Floridians to qualify for individual coverage. Several
reasons might support the application of individual coverage
to Clements. First, Clements occasionally ordered cleaning
supplies from a merchant in Orlando. (Doc. 22 at 3; Doc. 24-1
at 2) Even though the supplies likely originated outside
Florida, Randolph Hotel correctly argues that Clements's
purchase of the supplies fails to trigger individual
coverage. A person who buys from an in-state merchant an item
that previously traveled across state lines engages in no
interstate commerce even though the merchant bought the item
from an out-of-state supplier. Thorne, 448 F.3d at
Dale Schooley, who managed Randolph until the hotel's
closing in late 2016, states that guests occasionally paid by
check. (Doc. 22 at 2) Clements argues that “it is
believed that  some of the checks received by Plaintiff on
behalf of Defendant came from banks outside of
Florida.” (Doc. 24 at 4) Thorne cites with
approval Kitchings v. Florida United Methodist
Children's Home, Inc., 393 F.Supp.2d 1282 (M.D. Fla.
2005) (Presnell, J.), which rejects the plaintiff's
argument that the use of a credit card constitutes interstate
commerce. Under Thorne and Kitchings, the
possibility that a foreign bank might process a payment from
a plaintiff to an in-state merchant fails to establish
Clements states that he “often . . . interacted with
guests who were from states other than Florida” (Doc.
24-1 at 1), but the Randolph Hotel rebuts Clements's
testimony by proffering a compilation of rental applications.
(Doc. 22-1) Of the 73 applications in the compilation, 38
include a Florida address or a Florida workplace, 31 lack
sufficient information to infer the applicant's previous
residence, and just 4 evidence an applicant who moved to
Florida from another state. (Doc. 22-1 at 67, 69, 87, and 93,
the out-of-state applicants) The applications, which show
that out-of-state guests infrequently and sporadically
visited the Randolph Hotel, refute the assertion that
Clements regularly interacted in person with guests from
outside Florida. See Gregory v. Quality Removal,
Inc., 2014 WL 5494448 at *7-*8 (S.D. Fla. Oct. 30, 2014)
(Bloom, J.) (collecting authority to explain that
“irregular and sporadic” interstate contacts fail
to invoke individual coverage).
Clements declares that he “often” communicated by
phone with people outside Florida. (Doc. 24-1 at 1) Citing
Dent v. Giamo, 606 F.Supp.2d 1357 (S.D. Fla. 2009)
(Ryskamp, J.), Randolph Hotel argues that Clements
“cannot establish that Defendant was engaged in
interstate commerce.” (Doc. 21 at 11) Dent
grants summary judgment for the defendant partly because
“no evidence” suggested that the plaintiff
regularly communicated with out-of-state customers. 606
F.Supp.2d at 1316. In contrast to Dent,
Clements's sworn declaration evidences regular,
interstate communication as part of Clement's employment.
Although Randolph Hotel could have submitted telephone
records to foreclose Clements's argument, the hotel
proffers no evidence to rebut Clements's testimony that
he “often” communicated in interstate commerce.
See Gashlin v. Int'l Clinical Res.-US, LLC, 2014
WL 3057383 at *4 (M.D. Fla. July 7, 2014) (Dalton, J.)
(denying the defendant's motion for summary judgment and
observing that the defendant failed to submit telephone
records, which failure precluded determining the frequency of
the plaintiff's interstate communication).
ordering of out-of-state supplies from an in-state supplier
and the handling of a check drawn on a foreign bank fail to
establish individual coverage.
compilation of rental applications shows that Clements's
in-person interactions with out-of-state guests were
irregular, and Clements's declaration fails to create a
factual dispute as to the in-person interactions. But
Clements's declaration evidences regular telephonic
communication with people outside Florida as part of
Clements's employment. Because the Randolph Hotel fails
to exclude the ...