United States District Court, S.D. Florida
J. SULLIVAN UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Defendants' Motion for
Summary Judgment (DE# 74, 2/15/18).
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).
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
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.
(DE# 53 at 3, 10/12/17) (emphasis added).
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,
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
matter is ripe for adjudication.
A. The Corporate Defendants
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
[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).
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.”).
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.
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). 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.
plaintiff utilized three different vehicles to make
deliveries for the defendants: a Ford F-350, a van and an
Isuzu 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.
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.”).
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).
The Individual Defendants Jemary Jorge and Barbara
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. 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.
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.
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).
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
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