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Nolasco v. AKS Cartage Corp.

United States District Court, S.D. Florida

May 22, 2018

ALEXANDER NOLASCO, Plaintiff,
v.
AKS CARTAGE CORP., a Florida for profit corporation, JEMARY JORGE, an individual, BARBARA VERONA, an individual, DLI TRANSPORT CORP., a Florida for profit corporation, ALEJANDRO ARRIETA, an individual, DELTA LINE INTERNATIONAL, INC., a Florida for profit corporation and ANA M. VEGA, an individual, Defendants.

          ORDER

          JOHN J. SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Defendants' Motion for Summary Judgment (DE# 74, 2/15/18).

         BACKGROUND

         The operative complaint alleges a single cause of action for unpaid overtime pursuant to the Fair Labor Standards Act of 1938, as amended 29 U.S.C. § 201, et seq. (hereinafter “FLSA”) against AKS Cartage Corp. (hereinafter “AKS”), Jemary Jorge, Barbara Verona, DLI Transport Corp. (hereinafter “DLI”), Alejandro Arrieta, Delta Line International, Inc. (hereinafter “Delta Line”) and Ana M. Vega. See Third Amended Compliant (DE# 27, 7/10/17).

         On August 29, 2017, the defendants sought leave to amend their answer to assert the Motor Carrier Act (hereinafter “MCA”) exemption after the deadline for amending the pleadings had passed. See Defendants' Motion to Amend the Answer and Affirmative Defenses to Third Amended Complaint and Demand for Jury Trial Docket Entry 33 (DE# 39 at 1, 8/29/17). The Court denied the defendants' motion stating:

Here, Defendants have not established good cause to amend their answer. Defendants knew about Plaintiff's job duties from the Second and Third Amended Complaints. They also knew about his job duties by virtue of being his employer. See D.E. 39 (“Through the process of conferring with Defendants . . . Defense Counsel learned more about Plaintiff's specific job duties . . . .”). Defense Counsel's failure to raise the Motor Carrier Exception until well after the amendment deadline, despite learning about Plaintiff's job duties from the complaints and from their clients, is not excusable. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants' Motion to Amend the Answer and Affirmative Defenses to Third Amended Complaint and Demand for Jury Trial (D.E. 39) is DENIED.

         Order (DE# 53 at 3, 10/12/17) (emphasis added).

         The parties subsequently consented to magistrate judge jurisdiction. See Notice and Consent to Proceed Before a United States Magistrate Judge (DE# 60, 11/27/17). The undersigned issued a new scheduling order which did not set a new deadline for amending the pleadings. See Order Setting Pretrial Conference and Trial Date (DE# 66, 12/13/17).

         On February 15, 2018, the defendants filed the instant motion for summary judgment and statement of undisputed facts. See Defendants' Motion for Summary Judgment (DE# 74, 2/15/18) (hereinafter “Motion”); Defendants' Statement of Material Facts in Support of Summary Judgment (DE# 75, 2/15/18) (hereinafter “SOF”). The plaintiff filed his response in opposition on March 12, 2018. See Plaintiff's Response to Defendants' Motion for Summary Judgment and Memorandum of Law (DE# 79, 3/12/18) (hereinafter “Response”); Plaintiff's Statement of Disputed Facts in Support of His Response to Defendants' Motion for Summary Judgment (DE# 78, 3/12/18) (hereinafter “RSOF”). The defendants file their reply on March 19, 2018. See Defendants Reply to Plaintiff's Response to Defendants' Motion for Summary Judgement and Memorandum of Law (DE# 81, 3/19/18) (hereinafter “Reply”); Reply in Support of Defendants' Statement of Material Facts in Support of Summary Judgment and in Response to Plaintiff's Statement of Disputed Facts in Support of His Response to Defendants' Motion for Summary Jud[g]ement (DE# 82, 3/19/18) (hereinafter “Reply SOF”).

         This matter is ripe for adjudication.

         FACTS[1]

A. The Corporate Defendants

         The defendants are in the business of “ship[ping] cargo and . . . send[ing] things to many places” including Latin America and Europe. See Deposition of Alexander Nolasco (DE# 78-2 at 4). When cargo arrives at the defendants' warehouse:

[t]he person there, who is in charge of receiving, will take the cargo off the truck, will take off all the pallets, weigh them, measurements [sic] and put them in their place.
***
The trucks come from interstate outside of Miami. They come with shipping instructions, packing lists that says [sic] where it comes from, for what client, how many pallets, how many boxes. The person that receives 50, 60 pallets unloads them, checks that it is the totality of the pallets, the totality of the boxes, and that is the paper that he signs previous to the departure of the truck.

Deposition of Ana M. Vega (DE# 75-5 at 4).

         The defendants know where that cargo was headed. Meaning, the defendants do not store cargo in their warehouse indefinitely. See Deposition of Alexander Nolasco (DE# 78-2 at 4). The defendants' warehouse serves as a temporary holding facility until the cargo is ready to be shipped to a known location. The corporate defendants “do not hold cargo as stock for any of their clients.” SOF at ¶ 15; see also Deposition of Ana M. Vega (DE# 75-5 at 5) (stating that defendants “don't carry an inventory for anybody. But sometimes they do divide the cargo.”).

         The warehouse where the defendants are located has five loading docks for large trucks. SOF at ¶ 19. Defendant DLI's trucks are registered with the Department of Transportation. SOF at ¶ 16. Defendant AKS conducts business across state lines. It has been issued DOT numbers under the authority of the Department of Transportation. Id. at ¶ 17. Defendant Delta Line is a non-vessel operator cargo carrier primarily engaged in the transportation of articles through interstate, and often international commerce. Id. at ¶ 18.

         B. The Plaintiff

         The parties dispute what the plaintiff's primary functions were while he was employed by the defendants. The plaintiff states that he was a warehouse assistant who looked for shipments and helped organize them. RSOF at ¶ 21. According to the plaintiff, his primary job functions were warehouse-related, clean[ing] the yard, load[ing] trucks under Alejandro Arrieta's supervision, maintain[ing] the warehouse racks, and receiv[ing] shipments to the warehouse. RSOF at ¶ 13. The plaintiff asserts that his “work was split up 50% in the warehouse, 50% ‘on the street packing things and doing deliveries.' Therefore, he did not drive goods for 50% of his time.” RSOF at ¶ 14 (emphasis added).[2] The defendants do not dispute that the plaintiff spent at least some of his time as a warehouse assistant, but maintain that the plaintiff's primary job functions included driving trucks and loading and unloading trucks, for the purpose of the distribution of articles throughout the United States, and to other countries. SOF at ¶ 13; Reply SOF at ¶¶ 13, 21. According to the defendants, the plaintiff spent at least 50% of his work hours driving goods in interstate commerce, which “included some loading and unloading time as all truck deliveries do.” Reply SOF at ¶¶ 14, 21.

         The plaintiff utilized three different vehicles to make deliveries for the defendants: a Ford F-350, a van and an Isuzu[3] truck. See Deposition of Alexander Nolasco (DE# 78-2 at 3, 20). One of the vehicles, the Isuzu truck, weighed in excess 10, 000 pounds. See Reply SOF at ¶ 24. The parties have not proffered any record evidence that the other two vehicles weighed 10, 000 pounds or more.

         The parties dispute the amount of time the plaintiff spent driving the Isuzu truck. According to the defendants, the plaintiff drove this truck “90-95 %” of the time. Id.; see also Deposition of Alejandro Arrieta (DE# 75-4 at 5) (“Q. Okay. And what vehicle did he -- did he use the van more often than the others for work purposes? A. No. Q. So which vehicle did he use? A. The Isuzu -- ”). However, the plaintiff testified that he drove the Isuzu truck 20 percent of the time. See Deposition of Alexander Nolasco (DE# 78-2 at 20) (testifying that “mostly I was driving the van. We could say 60 percent was the van, 20 percent F-350 and the other 20 percent was the truck.”).

         The plaintiff would sometimes deliver cargo to the airport to be placed on airplanes bound for Europe or South America. See Deposition of Alexander Nolasco (DE# 78-2 at 5). He would also sometimes transport cargo to the seaport. Id. at 10. As part of his job duties, the plaintiff would take the cargo from the defendants' warehouse and place it onto a vehicle for delivery. Id. If the cargo consisted of a small item, the plaintiff would use his hands to load the cargo onto the transportation vehicle. If it was a heavy item, the plaintiff would use a forklift. Id. At all times, the plaintiff would perform this task under the supervision of Alejandro Arrieta. See Sworn Statement of Naibel Garcia (DE# 78-1 at ¶ 14).

         C. The Individual Defendants Jemary Jorge and Barbara Verona

         Defendant Jemary Jorge is the president of AKS. See Deposition of Jemary Jorge (DE# 75-2 at 11). Ms. Jorge did not work for any of the corporate defendants during the plaintiff's employment. SOF at ¶ 1.[4] Ms. Jorge had no management or supervisory duties over the plaintiff, no control over the plaintiff's schedule, the plaintiff's rate of pay, or how the plaintiff was compensated. Id. at ¶¶ 5-6. Ms. Jorge has no ownership interest in any of the corporate defendants. Id. at ¶ 3.

         Defendant Barbara Verona is the vice-president of AKS. See Deposition of Barbara Verona (DE# 75-3 at 5). Ms. Verona did not work for any of the corporate defendants during the plaintiff's employment. SOF at 8. Ms. Verona does not have an ownership interest in defendant AKS. Id. at ¶ 10. Ms. Verona did not control the day-today operations of the corporate defendants. She did not schedule employees, pay employees or direct the activities/duties of any employee. Id. at ¶ 11.

         STANDARD OF REVIEW

The Court, in reviewing a motion for summary judgment, is guided by the standard set forth in Federal Rule of Civil Procedure 56(a), which states as follows:
A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Fed. R. Civ. P. 56(a).

         The moving party bears the burden of meeting this exacting standard. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, "[t]he moving party bears 'the initial responsibility of informing the . . . [C]ourt of the basis for its motion, and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact.'" U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323). In assessing whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising therefrom in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994). “When evaluating cross-motions for summary judgment, the Court analyzes each individual motion on its own merits and thus views the facts on each motion in the light most favorable to the respective nonmovant.” Adega v. State Farm Fire & Cas. Ins. Co., No 07-20696, 2009 WL 3387689, at *3 (S.D. Fla. Oct. 16, 2009). Summary judgment is appropriate when there is no dispute as to any material fact and only questions of law remain. Id. If the record presents factual issues, the Court must deny the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

         Despite these presumptions in favor of the non-moving party, the Court must be mindful of the purpose of Rule 56 which is to eliminate the needless delay and expense to the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at 322-23. Consequently, the non-moving party cannot merely rest upon his bare assertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Court noted in Celotex:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against the party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact, " since a complete failure of proof concerning an ...

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