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Taylor v. C&L Towing And Transport, L.L.C.

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

April 23, 2019

KEITH E. TAYLOR, TERRENCE MCGLOTHLIN and MICHAEL JENKINS, Plaintiffs,
v.
C&L TOWING AND TRANSPORT, L.L.C. and CARL CHASE, Defendants.

          REPORT AND RECOMMENDATION

          Thomas B. Smith, United States Magistrate Judge.

         Pending 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 denied.

         Background

         Named 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).

         Plaintiffs 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).

         James 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.

         The 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 5[1] (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.[2]

         Discussion

         Legal Standard

         “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.” 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 Cir. 2006).

         The 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).

         Undisputed Facts

         For present purposes, certain background facts are established.[3] 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.

         Analysis

         Defendants 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.

         Similarly Situated Plaintiffs

         Defendants' 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).

         Similarly, in his deposition, Mr. Burton testified:

Q.· ·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 title.
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?
A.· ·Yes.
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 ...

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