United States District Court, M.D. Florida, Tampa Division
SCOTT EHRLICH, SALVATORE REALE, and GARY PRUSINSKI, on behalf of themselves and all other similarly situated, Plaintiffs,
RICH PRODUCTS CORPORATION, Defendant.
C. BUCKLEW, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court on Defendant Rich
Products Corporation's Motion for Summary Judgment,
Statement of Undisputed Material Facts and Memorandum of Law
with supporting exhibits (Doc. 45), Plaintiffs Scott Ehrlich,
Salvatore Reale and Gary Prusinski's Memorandum in
Opposition with exhibits (Doc. 48), and Defendant Rich
Products Corporation's reply brief (Doc. 51).
Complaint in this action seeks compensation on behalf of the
Named Plaintiffs and the Opt-in Plaintiffs, current and
former employees of Defendant Rich Products Corporation
(“Rich”) for unpaid overtime compensation under
the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA”). Rich seeks the entry of final
summary judgment on grounds that Plaintiffs are exempt from
the overtime pay provisions of the FLSA by virtue of the
Motor Carrier Act Exemption found in 29 U.S.C. § 213
9b)(1). Having carefully considered the parties'
submissions, the Court finds that Defendant's Motion is
due to be granted and that Defendant is entitled to judgment
as a matter of law. Rich meets the two requirements needed to
trigger the Motion Carrier Exemption: (1) Plaintiffs were
employed by a carrier whose transportation is subject to the
Secretary of Transportation's jurisdiction under the
Motor Carrier Act; and (2) Plaintiffs engaged in activities
directly affecting the safety of operation of motor vehicles
while moving property in interstate commerce.
BACKGROUND AND FACTS
Defendant's Business Activities:
manufactures and distributes food products worldwide to food
service, in-store bakery and retail marketplaces. (Affidavit
of Shirley Barnes (“Barnes Aff.”), Ex. 1, ¶
This lawsuit concerns Rich's distribution in Florida of
Carvel® ice cream cakes that it manufactures in New
Britain, Connecticut, as well as other frozen desserts
manufactured at locations outside of Florida (“the
subject products”). (Id. at ¶ 4). Because
the subject products are perishable, they are shipped from
where they are manufactured via refrigerated tractor-trailer
trucks weighing over 10, 000 pounds. (Affidavit of Shawn Wolf
(“Wolf Aff.”), Ex. 2, ¶ 5. See
also, Deposition of Plaintiff Scott Ehrlich
(“Ehrlich Dep.”), Ex. 3, p. 19, ln. 25 to p. 20,
ln. 1 and p. 44, lns. 14-19; Deposition of Plaintiff Gary
Prusinski (“Prusinski Dep.”), Ex. 4, p. 31, lns.
9-19 and p. 32, lns. 1-11; and Deposition of Plaintiff
Salvatore Reale (“Reale Dep.”), Ex. 5, p. 48,
provides the trucking companies that it hires with
instructions regarding the time and place for pick up and
delivery of the subject products. (Wolf Aff., Ex. 2, ¶
6). Because of the perishable nature of these products, Rich
also provides lading instructions to deliver them to a
storage facility in Florida (“the Burris
Facility”) where they are temporarily held until they
are transported by shuttle trucks to the actual delivery
trucks for distribution to retail stores in Florida.
(Id. at ¶¶ 7-8). Rich does not own the
Burris Facility, but it does control its subject products
while they are stored there pursuant to a contract overseen
by Brad Smith, Rich's regional distribution manager.
(Deposition of Brad Smith (“Smith Dep.”), Ex. 8,
p. 5, ln. 1 to p. 6, ln. 1). Under said contract, Rich
reserves to itself the right to oversee and control the
storage to make sure that inventory is correct and that
orders are properly filled. (Id. at p. 34, ln. 14 to
p. 36, ln. 24 and p. 13, ln. 19 to p. 14, ln. 2).
Shipments of the subject products to the Burris Facility
typically occur twice a week. (Deposition of Kevin Wolf,
Rich's Fulfillment Planner, (“K. Wolf Dep.”),
Ex. 10, p. 18, lns. 8 to 20). The space rented at the Burris
Facility by Rich is never full. (Id. at p. 17, lns.
6-11). At least two trucks are sent each week because the
product replenishment will not fit in one truck.
(Id. at p. 19, lns. 5-8). The Burris Facility does
not know the amount of product that is coming in and is only
notified that a truck is delivering products. (Id.
at p. 17, lns. 1-5).
the subject products are at the Burris Facility, Rich
provides instructions to release them on a
“first-in/first-out” basis. (Smith Dep., Ex. 8,
p. 16, lns. 4-13). This system of rotation results in a
complete turnover of the subject products at the Burris
Facility more than once a month in terms of the dollar value
of the products. (Id. at p. 37, ln. 18 to p. 38, ln.
8). While there are occasional products that do not sell,
these products are either disposed of as “out of
date” or sold as “distressed products” to
prisons or food banks and, importantly, are never transported
by the shuttles to the actual delivery trucks. (Id.
at p. 14, lns. 3 to 20). The subject products are not
packaged or altered before being transferred by shuttle
trucks to the actual delivery trucks for distribution to
retail stores in Florida. (Id. at p. 11, lns. 9-20
and p. 37, ln. 18 to p. 38, ln. 8; Ehrlich Dep., Ex. 3, p.
44, lns. 14-19 and p. 45, ln. 13 to p. 46, ln. 1; Prusinski
Dep., Ex. 4, p. 34, ln. 18 to p. 35, ln. 12).
uses forecasting of sales to ensure that the amount of the
subject products that is manufactured and shipped is
sufficient to meet customer needs, while-at the same
time-avoids waste and enhances profits. (Barnes Aff., Ex. 1,
¶ 7). The forecasts are prepared by Shirley Barnes,
Demand Planner, who forecasts future sales for the long term
(for two years going forward) and then adjusts them for the
short term (month-to-month) with review of the projections
every day, so as to ensure as much accuracy as possible and
provide “realtime” forecasts. (Barnes Aff., Ex.
1, ¶ 8; Deposition of Shirley Barnes (“Barnes
Dep.”), Ex. 9, p. 6, lns. 4-11; p. 8, ln. 1 to p. 11,
ln. 23; and p. 13, ln. 17 to p. 15, ln. 20; p. 16, ln. 6 to
p. 17, ln. 12; p. 18, ln. 10 to p. 21, ln. 9; p. 22, ln. 6 to
ln. 23; p. 23, ln. 10 to p. 24, ln. 2; p. 24, ln. 12 to p.
26, ln. 19; p. 27, ln. 20 to p. 28, ln. 6). She takes into
account the historical demand of customers as well as current
developments including weather events, store promotions,
store losses and closings and numerous other factors.
(Id.). Rich's intent is to replenish the
warehouse at a rate that is below the actual forecasts with
the result that Rich is more at risk of being short in order
to prevent warehouse spoilage because the subject products
are expensive. (Barnes Aff., Ex. 1, ¶ 10; Barnes Dep.,
Ex. 9, p. 23, ln. 10 to p. 24, ln. 2).
Plaintiffs' Employment with Defendant:
Scott Ehrlich (“Ehrlich”) is currently employed
by Rich as a Route Sales Representative (“RSR”),
whose duties include the ordering, sales, and delivery of the
subject products via the aforementioned refrigerated delivery
trucks to grocery stores and other retail outlets in Florida.
(Ehrlich Dep., Ex. 3, (Ehrlich Interrogatory Answers); Wolf
Aff., Ex. 2, ¶ 9 and Attachment A). Plaintiffs Salvatore
Reale (“Reale”) and Gary Prusinski
(“Prusinski”) were formerly employed by Rich as
RSRs and had the same job duties. (Reale Dep., Ex. 5, (Reale
Interrogatory Answers); Prusinski Dep., Ex. 4 (Prusinski
Interrogatory Answers); Wolf Aff., Ex. 2, ¶ 9 and
did not deliver any products that were manufactured in or
originated in Florida. (Wolf Aff., Ex. 2, ¶ 16. See
also, Ehrlich Dep., Ex. 3, p. 45, ln. 1-11; Prusinski
Dep., Ex. 4, p. 31, lns. 1-11; Reale Dep., Ex. 5, p. 48, lns.
1-5). Plaintiffs Ehrlich and Prusinski even visited the
manufacturing plant in New Britain, Connecticut where the
subject products were manufactured and they acknowledged that
these products were pre-packaged before leaving the plant.
(Ehrlich Dep., Ex. 3, p. 44, lns. 14-19 and p. 45, ln. 13 to
p. 46, ln. 1; Prusinski Dep., Ex. 4, p. 34, ln. 18 to p. 35,
also acknowledge their role in assisting in estimating the
number of the subject products needed for their routes by
submitting on a daily basis orders to Rich through their
handheld devices. (Ehrlich Dep., Ex. 3, p. 23, lns. 12-23; p.
24, lns. 4-13; p. 25, ln. 9-13; and p. 26, lns. 1-11;
Prusinski Dep., Ex. 4, p. 28, lns. 18-25; p. 27, lns. 11-23;
p. 28, lns. 4-7; and p. 29, lns. 1-2; and Reale Dep., Ex. 5,
p. 22, lns. 9-24; p. 23, lns. 7-13; and p. 23, ln. 24 to p.
24, ln. 3). Ehrlich testified that the purpose of Rich's
forecasting activities could be described by referring to the
“Goldilocks” story or, more specifically, that
the objective of these efforts was to ensure that the product
shipped “was not too little and not too much.”
(Ehrlich Dep., Ex. 3, p. 73, ln. 23 to p. 74, ln. 7.
Accord Ehrlich Dep., Ex. 3, p. 26, lns. 1-11; p. 70,
ln. 1 to p. 71, ln. 1; and p. 73, lns. 7-11). Prusinski
testified that he was told by his supervisor, Shawn Wolf,
that the number of the subject products shipped to Burris
from Connecticut was based on forecasts created on the basis
of past sales and that he had no reason not to believe Shawn
Wolf. (Prusinski Dep., Ex. 4 at p. 38, lns. 11-19).
also confirmed that while there might occasionally be a
product that did not sell, more typically, it was their
personal experience that they would be “shorted”
on product they had ordered for their routes because there
was insufficient supply at the Burris facility to fulfill
their orders. (Ehrlich Dep., Ex. 3, p. 54, lns. 13-17;
Prusinski Dep., Ex. 4, p. 29, lns. 10- 17; Reale Dep., Ex. 5,
p. 24, lns. 4-10. Accord Barnes Aff., Ex. 1, ¶
11). Likewise, Plaintiffs acknowledge the perishable nature
of the subject products, confirming that it is not possible
to store the products on a long term basis at the Burris
Facility because they would have to be destroyed, given their
shelf life, if Burris was overstocked with them.
(See Ehrlich Dep., Ex. 3, p. 19, ln. 25 to p. 20,
ln. 1; p. ...