United States District Court, M.D. Florida, Orlando Division
KEITH E. TAYLOR, TERRENCE MCGLOTHLIN and MICHAEL JENKINS, Plaintiffs,
C&L TOWING AND TRANSPORT, L.L.C. and CARL CHASE, Defendants.
REPORT AND RECOMMENDATION
B. Smith, United States Magistrate Judge.
before the Court in this Fair Labor Standards Act, as
amended, 29 U.S.C. § 216(b) (“FLSA”) case is
Defendants' Motion for Summary Final Judgment (Doc. 76).
The motion is accompanied by a workers' compensation
settlement case file (Doc. 76-1); the Declaration of
Defendant Carl Chase, Jr., with attached exhibits (Doc.
76-2); the Deposition of Plaintiff Keith E. Taylor (Doc.
76-3); the Deposition of Plaintiff Terrence McGlothin (Doc.
76-4); the Deposition of Opt-in Plaintiff Stanley Burton
(Doc. 76-5); the Deposition of Opt-in Plaintiff Stephen Guy
Black, Sr. (Doc. 76-6); the Unsworn Statement of Opt-in
Plaintiff Damien Ridenour (Doc. 76-7); and the Deposition of
Opt-in Plaintiff James Robert Simpson (Doc. 76-8). Plaintiffs
response to the motion was filed late (Doc. 79) and
Defendants have filed a reply (Doc. 80). After due
consideration it is respectfully recommended
that the motion for summary judgment be
Plaintiffs Keith E. Taylor and Terrence McGlothlin filed this
lawsuit on behalf of themselves and all others similarly
situated (Doc. 1). They allege that they were employed by
Defendants within the last three years as tow truck workers,
and that Defendants failed to pay them overtime compensation
for hours worked in excess of forty per week (Doc. 1,
¶¶ 10, 14). Defendants' violations of the FLSA
are alleged to be knowing, willful and in reckless disregard
of the rights of Plaintiffs and all others similarly
situated. (Id., ¶ 21). Defendants deny these
claims and assert several affirmative defenses (Doc. 7).
moved for conditional certification of the collective action
and to authorize notice to potential claimants (Doc. 43). The
District Court granted the motion in part, and conditionally
certified the case as a collective action for:
“All tow truck drivers currently or formerly
employed by C & L Towing and Transport, LLC within the
three-year period immediately preceding the filing of this
case to the present” (Doc. 49).
Simpson (Doc. 17), Michael Jenkins (Doc. 43 at 16), Stan
Burton (Doc. 43 at 17), Steven Guy Black, Jr. (Doc. 43 at
18), and Damien Ridenour (Doc. 44) have all filed consents to
joint this lawsuit.
parties have taken discovery and Defendants filed the instant
motion for summary judgment on March 1, 2019 (Doc. 76). The
Clerk entered a Summary Judgment Notice informing Plaintiffs
that they had thirty days after service of the motion to file
their responses (Doc. 78). Thus, the deadline was April 1,
2019. Plaintiffs filed their response on April
(Doc. 79). In view of the filing of an amended certificate of
service indicating service of the motion on one of the Opt-in
Plaintiffs on March 4, 2019 (Doc. 77), and absent a motion to
strike for good cause, I have accepted and considered
Plaintiff's response to the motion.
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.”
Fed.R.Civ.P. 56(a). An issue of fact is “genuine”
if “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if the fact could affect the outcome
of the lawsuit under the governing law. Id. In
determining whether a genuine dispute of material fact
exists, the Court must read the record and the evidence
presented in the light most favorable to the non-moving
party. See Porter v. Ray, 461 F.3d 1315, 1320 (11th
movant “bears the initial responsibility of informing
the district court 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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden then the burden shifts to the
defending party to “go beyond the pleadings, ”
meaning the defending party must either present specific
evidence showing that there is a genuine issue of material
fact; or show by other means that the moving party is not
entitled to judgment as a matter of law. Id. at
324-26. In reviewing the record evidence, “the Court
may not undertake the jury's function of weighing the
evidence properly offered by the parties.” Gordilis
v. Ocean Drive Limousines, Inc., No. 12-cv-24358-JLK,
2014 WL 2214274, *1 (S.D. Fla. May 28, 2014), citing
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237
(11th Cir. 2010) (“Neither we nor the district court
are to undertake credibility determinations or weigh the
evidence.”). The Court's role is limited to
deciding whether there is sufficient evidence upon which a
reasonable juror could find for the non-moving party.
O'Dell v. United States, 8:17-CV-733-T-27JSS,
2019 WL 400155, at *2 (M.D. Fla. Jan. 31, 2019).
present purposes, certain background facts are
established. Defendant Carl Chase is the Chief
Executive Officer of C & L Towing and Transport LLC
(“C & L”) (Doc. 76-2 at ¶ 2). C & L
provides motor vehicle transportation and heavy equipment
hauling for compensation. (Id., ¶ 13).
Plaintiffs working for C & L as tow truck drivers drove
trucks weighing 10, 001 pounds or more, towing vehicles and
equipment (Id., ¶ 12). And, the drivers were
paid on commission and in cash (Doc. 79-1 at pp. 58, 108).
Most of the remaining material facts are in dispute.
present five arguments in support of their motion: (1) that
Plaintiffs are not similarly situated; (2) the Motor Carrier
Act (“MCA”) exemption to the FLSA applies to bar
relief to Plaintiffs; (3) Plaintiffs were independent
contractors and not employees; (4) Plaintiffs cannot
establish damages; and (5) Plaintiffs' damages are
limited by the statute of limitations.
argue that Plaintiffs are not similarly situated and do not
fall within the certified class as “Mr. Ridenour
testified very clearly that he was ‘not a tow truck
driver'” (citing “Depo, 18:8-12”) and
“Mr. Burton worked for Defendant as a diesel
mechanic.” Contrary to Defendants' assertion, Mr.
Ridenour did not “testify” in a deposition.
Defendants tendered his Unsworn Statement in which he gave
his title as “Diesel mechanic and road service, ”
explaining that he worked 60 to 80 hours a week for C & L
(Doc. 76-7). The cited lines in his statement read:
I wasn't a tow truck driver. I wasn't a mechanic. I
was the guy who was asked to do whatever needed to be done,
and that didn't matter what it was. If something needed
to be taken care of there, I would take care of it.
(Doc. 76-7 at p. 18, lines 8-12).
in his deposition, Mr. Burton testified:
Q.Â· Â·What was your job title?
A.· ·I would say that the job that I had really
didn't -- you couldn't envelope it into a single
Q.· ·Would you --
A.· ·I mean, you could say I was a diesel
mechanic, but it covered so many other things that it's
not really an accurate description.
Q.· ·While working for C&L, did you ever
work as a tow truck driver?
Q.· ·For how long did you work as a tow truck
driver with C&L?
A.· ·From when my license was reinstated until
my employment was terminated.
Q.· ·When was your license reinstated?
A.· ·Five years ago.
Q.· ·What -- what percentage of your job was
acting as a mechanic and what percentage of it was acting ...