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Ehrlich v. Rich Products Corporation

United States District Court, M.D. Florida, Tampa Division

May 1, 2018

SCOTT EHRLICH, SALVATORE REALE, and GARY PRUSINSKI, on behalf of themselves and all other similarly situated, Plaintiffs,
v.
RICH PRODUCTS CORPORATION, Defendant.

          ORDER

          SUSAN C. BUCKLEW, UNITED STATES DISTRICT JUDGE

         ORDER 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).

         I. INTRODUCTION

         The Complaint in this action seeks compensation on behalf of the Named Plaintiffs and the Opt-in Plaintiffs[1], 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.

         II. BACKGROUND AND FACTS

         A. Defendant's Business Activities:

         Rich manufactures and distributes food products worldwide to food service, in-store bakery and retail marketplaces. (Affidavit of Shirley Barnes (“Barnes Aff.”), Ex. 1, ¶ 3).[2] 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, lns. 1-25).

         Rich 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).

         Once 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).

         Rich 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).

         B. Plaintiffs' Employment with Defendant:

         Plaintiff 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 Attachment A).

         Plaintiffs 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, ln. 12).

         Plaintiffs 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).

         Plaintiffs 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. ...


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