UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DONNA REDACTED : CASE NO.:
:
Plaintiff, :
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vs. :
:
HIGH SPRINGS FAMILY :
PRACTICE CLINIC AND :
DIAGNOSIS CENTER, INC. :
and JORGE PREITO-BECERA :
:
Defendants/Third Party :
Plaintiffs :
:
vs. :
:
Dr. Redacted Redacted, :
:
Third Party Defendant :
______________________________:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The Defendants/Third Party Plaintiffs (High Springs Family Practice Clinic and Diagnosis Center, Inc. and Jorge Preito-Becera) file the following Motion for Summary Judgment as to all Counts of the Complaint and state as follows:
BACKGROUND
The Plaintiff has filed a Complaint alleging violations of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) for alleged violations of the Fair Labor Standards Act (“FLSA”). See Count I of the Complaint. Count I of the Complaint alleges a failure to pay the Federal minimum wage and seeks back wages, liquidated damages, prejudgment interest, attorneys’ fees, and litigation expenses.
The Defendant High Springs Family Practice Clinic and Diagnosis Center, Inc. (Highs Springs) is a small, local doctor’s office with one location in Florida. The corporate Defendant has not grossed more than $500,000 per year. Moreover, it does not have two or more employees engaged in commerce or in the production of goods for commerce, and is a local business only transacting and seeking to transact business in Florida. These simple facts, warrant summary judgment in the Defendants’ favor. Bien-Aime v. Nanak’s Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008) (granting summary judgment for lack of enterprise coverage in a case where defendant had over $500,000 in annual revenue, holding that “it is clear from the record that Defendant’s business involves the landscaping of properties solely within the State of Florida and does not affect interstate commerce in the manner intended to trigger application of the FLSA” . . . and “[a]pplication of the FLSA in this case would clearly undermine the intent of Congress in enacting the FLSA, which was to ‘leave local business to the protection of the states’”) (quoting Walling v. Jacksonville Paper Co., 317 U.S. 564, 571 (1943)); Polycarpe v. E & S Landscaping, Inc., 572 F. Supp. 2d 1318 (S.D. Fla. 2008) (granting summary judgment for lack of enterprise coverage in a case where defendant had over $500,000 in annual revenue, holding that “the Defendants have submitted overwhelming evidence that the landscaping business was strictly of a local nature and the various items used in the business proliferated this goal of local service . . .[as defendant] only performs work within the State of Florida, only solicits clients in the South Florida area, only conducts business in the State of Florida, and does not provide any services outside of the State of Florida” and “[t]he fact that the Defendant Company provided services of an exclusively local nature is dispositive”); Lamonica v. Safe Hurricane Shutters, Inc., – – F. Supp. 2d – – , 2008 WL 4346323 (S.D. Fla., Sept. 23, 2008) (Cohn, J.) (holding FLSA does not apply to local hurricane shutter installation company, although company’s gross annual revenue exceeded $500,000); Morales v. M & M Painting and Cleaning Corp., 2008 WL 4372891 (S.D. Fla., Sept. 24, 2008) (O’Sullivan, J.) (holding that FLSA does not apply to local painting company, although company’s gross annual revenue exceeded $500,000); Sandoval v. Florida Paradise Lawn Maintenance, Inc., 2008 WL 1777392 * 5-6 (S.D. Fla., Apr. 17, 2008). The Bien-Aime, Polycarpe, Lamonica, Morales, and Sandoval courts relied on an Eleventh Circuit case for their holdings that unless the plaintiff can prove that two or more employees are engaged in interstate commerce, summary judgment is warranted. Scott v. K.W. Max Investments, Inc., 2007 WL 2850926 (11th Cir., Oct. 2, 2007).
SUMMARY OF ARGUMENT
Defendants will first demonstrate that the Plaintiff’s federal law claims (i.e. that brought pursuant to the FLSA) are without basis. Because there is no diversity jurisdiction, Defendants will show that once the FLSA claims are dismissed so too should be the state law claims; thus, resolving this case in its entirety in this Court. These arguments are separated below into two main sections: Memorandum of Law as to Count I (i.e. the Federal law claims) and Memorandum of Law as to Counts II and III (i.e. the state law claims).
MEMORANDUM OF LAW – AS TO COUNT I
- I. THE LEGAL STANDARDS FOR GRANTING A MOTION FOR SUMMARY JUDGMENT
A. Standard for Establishing Subject Matter Jurisdiction
It is settled that “the party invoking the Court’s jurisdiction, bears the burden of demonstrating that this matter falls within the Court’s subject matter jurisdiction.” Makro Capital of Am., Inc. v. UBS AG, 436 F. Supp. 2d 1342, 1345 (S.D. Fla. 2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002) (holding that “the burden is on the plaintiff to prove that jurisdiction exists”).
B. Legal Standard for Summary Judgment
Summary judgment under Federal Rule Civil Procedure 56(c) is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the initial responsibility of showing the Court, by reference to the record, that there are no genuine issues of material fact to be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be met by “showing” or “pointing out” to the Court that there are no genuine issues of material fact. Jeffrey v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (per curiam) (quoting Celotex, 447 U.S. at 325). Once the initial burden is met, the non-moving party must go beyond the pleadings and “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)); see also Celotex, 477 U.S. at 324. In so doing, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. Instead, there must be a sufficient showing that the jury could reasonably find for that party. Anderson, 477 U.S. at 252; see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
When deciding whether summary judgment is appropriate, the Court must view the evidence and all reasonable factual inferences therefrom in the light most favorable to the non-moving party. Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998) (citations omitted). The Court must then decide whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52)).
II. RELEVANT UNDISPUTED FACTS
As indicated in the Defendants’ Statement of Undisputed Material Facts, the Defendants’ business is as a local doctor’s office performing work only in Florida. The Plaintiff did not engage in interstate commerce nor did she produce any goods or services outside the state of Florida. Moreover, at all times, the corporate Defendant High Springs has never made more than $500,000.00.
- III. THE PLAINTIFF CANNOT ESTABLISH JURISDICTION UNDER THE FLSA, BECAUSE HIGH SPRINGS DOES NOT EMPLOY ANYONE ENGAGED IN INTERSTATE COMMERCE OR IN THE PRODUCTION OF GOODS FOR INTERSTATE COMMERCE, THE PLAINTIFF WAS NOT SO EMPLOYED, AND HIGH SPRIGS NEVER MADE MORE THAN $500,000.00.
A. General Analysis
Section 206(a) of the FLSA provides, in relevant part:
Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates…
29 U.S.C. § 206(a). Simply put, the FLSA requires an employer to a certain minimum wage if that employee is either engaged in commerce of the production of goods for commerce or is employed in an enterprise engaged in commerce of the production of goods for commerce. Moreover, Section 203(b) defines “commerce” as follows: “Commerce” means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b).
Therefore, the FLSA provisions apply in two circumstances: (1) where an employee is engaged in commerce or the production of goods for commerce—individual coverage; or (2) where an employee works for an enterprise engaged in commerce or in the production of goods for commerce— enterprise coverage. Ares v. Manuel Diaz Farms, Inc., 318 F.3d 1054, 1056 (11th Cir. 2003). “The burden of proof lies on employees to establish that they were engaged in interstate commerce, or in the production of goods, and that such production was for interstate commerce.” Kitchings v. Florida United Methodist Children’s Home, Inc., 393 F. Supp. 2d 1282, 1292 n.25 (M.D. Fla. 2005) (citing D.A. Schulte, Inc., v. Gangi, 328 U.S. 108, 121 (1946) and Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 90 (1942)). This is because the burden of proof on a challenge to subject-matter jurisdiction lies with the party invoking the court’s jurisdiction: here, the Plaintiffs. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002) (holding that “the burden is on the plaintiff to prove that jurisdiction exists”).
Under the first type of FLSA coverage— “individual coverage”— an employee is entitled to the federal minimum wage as long as he or she is “engaged in commerce or in the production of goods for commerce.” See 29 U.S.C. § 207; Bien-Aime v. Nanak’s Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008). To determine whether an employee performed such work, a court must focus its inquiry on the activities of the employee and not on the business of the employer. See Mitchell v. Lublin McGaughy & Assocs., 358 U.S. 207, 211 (1959); see also Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1267-68 (11th Cir. 2006). In Thorne, the Eleventh Circuit held that it was “the intent of Congress to regulate only activities constituting interstate commerce, not activities merely affecting commerce”, and thus an employee must be “engaged in commerce”, which means he must be “directly participating in the actual movement of persons or things in interstate commerce”. Thorne, 448 F.3d at 1266. Further, in addition to the requirement that the individual must be directly participating in the actual movement of persons or things in interstate commerce, “[f]or an employee to be engaged in commerce, ‘a substantial part of the employee’s work must be related to interstate commerce.” Kitchings, 393 F. Supp.2d at 1293 n.26 (quoting Boekemeier v. Fourth Universalist Soc’y in City of New York, 86 F. Supp.2d 280, 287 (S.D. N.Y. 2000) and (citing Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943)).
Under the second type of FLSA coverage— “enterprise coverage”— an employee is entitled to the federal minimum wage if he or she is employed by “an enterprise engaged in commerce,” as defined by § 203(s) of the statute. Section 203(s) of the FLSA provides in relevant part that an “[e]nterprise engaged in commerce or in the production of goods for commerce” means an enterprise that:
(A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or material that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated).
29 U.S.C. § 203(s)(1)(A)(ii). Thus, in order for an enterprise to be “engaged in commerce,” for purposes of enterprise coverage, a business must have employees handling goods or materials that have been moved in interstate commerce and must have annual gross volume of sales or business done in excess of $500,000. See 29 U.S.C. § 203(s)(1)(A)(ii).
To resolve this Motion the Court must decide two issues. The first is whether, reviewing the record in the light most favorable to Plaintiff, the Plaintiff participated in the actual movement of persons or goods in interstate commerce, and whether that participation was sufficiently substantial as needed to support a finding of individual coverage under the FLSA. The second is whether, reviewing the record in the light most favorable to Plaintiff, the corporate Defendant’s annual gross volume of sales exceeded the minimum requirement under the FLSA ($500,000) and whether High Springs employed two or more employee who regularly and recurrently engaged in interstate commerce. The Court should note that given the Bien-Aime, Polycarpe, Lamonica, Morales, and Sandoval cases, summary judgment is clearly appropriate here.
B. Individual Coverage
Plaintiff ostensibly alleges that the overtime provisions of the FLSA apply in this case because her work for High Springs involved the use of goods that traveled in interstate commerce. As to Plaintiff’s use of goods that traveled in interstate commerce, it is well-settled that this is not enough to invoke individual coverage under the FLSA. See Thorne, 448 F.3d at 1267 (holding that “[w]hen goods reach the customer for whom they were intended, the interstate journey ends and employees engaged in any further intrastate movement of the goods are not covered under the Act”) (citing McLeod v. Threlkeld, 319 U.S. 491, 493 (1943)); Junkin v. Emerald Lawn Maintenance & Landscaping, Inc., 2005 WL 2862079, *1 (M.D. Fla. 2005) (holding that there was no individual coverage because “[t]he Court is not persuaded that the mere act of transporting goods that previously found themselves in the flow of interstate commerce means that an employee ‘engaged in commerce’ and is thus subject to ‘individual coverage’ under the FLSA”); see also Russell v. Continental Restaurant, Inc., 430 F. Supp.2d 521, 526-27 (D. Md. 2006) (citing Thorne and rejecting the argument that handling produce from out-of-state demonstrates that a restaurant employee is engaged in interstate commerce). The reason for these decisions is found in long ago decided Supreme Court decisions that clearly hold that the inquiry concerning individual coverage focuses “on the activities of the employee and not on the business of the employer.” Mitchell v. Lublin McGaughy & Assocs., 358 U.S. 207, 211 (1959).[1] The burden of proof lies on employees to establish that they were engaged in interstate commerce, or in the production of goods for interstate commerce. D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 121 (1946); Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 90 (1942). Finally, and importantly, “a substantial part of [Plaintiff’s] work” must be the engagement in interstate commerce for the Plaintiff to successfully invoke enterprise coverage. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943) (holding that individual coverage is only established “[i]f a substantial part of an employee’s activities related to goods whose movement in the channels of interstate commerce was established by the test we have described, he is covered by the [FLSA]”).
The Court should be aware that, not surprisingly after Thorne, other courts in the Florida are readily granting summary judgment in favor of employers in FLSA cases, where individual coverage lacks. Numerous district court opinions, since the Thorne case was decided, have actually ruled that individual coverage does not exist and have granted summary judgment for employers on that issue, see, e.g., Guzman v. Irmadan, Inc., 551 F. Supp. 2d 1368 (S.D. Fla. 2008) (granting summary judgment on issue when plaintiff was remodeling residences for the employer, even though plaintiff picked up and purchased at retail stores various items needed for work); Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008) (granting summary judgment in favor of defendants, even though plaintiff picked up automobile parts that had traveled in interstate commerce), aff’d, Navarro v. Broney Automotive Repairs, Inc., 2008 WL 2315869 (11th Cir., June 6, 2008) (holding that to prove coverage under the FLSA the plaintiff must “participate in the actual movement of persons or things in interstate commerce” and reiterating that goods intended for resale are at rest and are no longer moving in commerce, and thus it is irrelevant to the coverage issue if the plaintiff, buys, uses, or handles retail or wholesale goods that are purchased locally that previously traveled in interstate commerce), cert. denied, – – S. Ct. – -, 2008 WL 4144447 (2008); Casseus v. First Eagle, L.L.C., 2008 WL 1782363 (S.D. Fla., Apr. 18, 2008) (granting summary judgment in favor of defendant and against the restaurant worker plaintiff); Casanova v. Morales, 2007 WL 4874773, *1 (S.D. Fla., Aug. 3, 2007), aff’d, – – F.3d – -, 2008 WL 94756 (11th Cir. 2008); Severin v. Pasha’s Restaurants, Inc., 2007 WL 967021 (S.D. Fla., Mar. 22, 2007) (granting summary judgment on the issue— not enough direct involvement in the production of goods for commerce—to an employer when the employee ordered food and supplies, and made bank deposits regularly); Thompson v. Robinson, Inc., 2007 WL 2714091 (M.D. Fla., Sept. 17, 2007) (granting summary judgment on the issue when the plaintiff did not use instrumentalities of commerce, such as fax machines, telephones, or e-mails, and his only involvement with goods was after they ceased to move in interstate commerce); Scott v. K.W. Max Investments, Inc., 2007 WL 423080 (M.D. Fla., Feb. 6, 2007) (holding that the handling of building materials that had traveled in interstate commerce not enough to establish individual coverage, and noting that there was no production of goods, much less goods for commerce, since the employer was a service provider), and there has been one Eleventh Circuit case that has followed Thorne. Scott v. K.W. Max Investments, Inc., 2007 WL 2850926 (11th Cir., Oct. 2, 2007) (holding that the plaintiff purchasing goods from a Home Depot that had originally moved through commerce not entitled to invoke individual coverage).
It is clear from the facts of this case that the Plaintiff simply was not involved in any manner in the actual movement of persons or goods in interstate commerce, much less that the participation was sufficiently substantial as needed to support a finding of individual coverage under the FLSA. The Plaintiff simply worked as a doctor’s assistant, and the materials with which she worked were clearly at rest, and no longer in interstate commerce. Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008) (holding that the instate purchase of automotive parts from wholesalers and retailers that were manufactured or traveled outside Florida does not constitute the engagement in commerce, because the parts were at rest and out of the stream of commerce).
The Plaintiff may attempt to rely on Alonso v. Garcia, 2005 WL 1901682, *1 (11th Cir. 2005), but that decision is not supportive of individual coverage in these circumstances, and its application has been rejected by the courts identified above granting summary judgment on this issue for the employer. Alonso contains no discussion of the facts, much less any analysis of them, whatsoever, but merely holds that a “laborer transporting fumigation materials and chemicals, which had traveled in interstate commerce to defendants’ customers within the state”, presented in issue of fact preventing summary judgment on the question of whether the plaintiff was engaged in interstate commerce.[2] The Middle District of Florida’s decision in Junkin explains the problems with Alonso. The plaintiff in Junkin worked for a lawn maintenance company and his work required him to transport herbicides and fertilizers manufactured or shipped out of state. Junkin, 2005 WL 2862079 at *1. The court found that there was no enterprise coverage because the employer’s annual volume of business did not exceed $500,000, id. at *3, and there was no individual coverage because the mere act of transporting goods that previously found themselves in the flow of interstate commerce does not mean that an employee engaged in commerce or produced goods or services for commerce. The court noted that “[b]rought to its logical end, such a theory would mean that an employee who, in the course of his duties, simply moves an item (which originated in another state) from one place to another within the same property . . . has ‘engaged in commerce’ by ‘transporting’ that item. Such a theory cannot stand, as it would, in essence, nullify the ‘interstate’ requirement and ultimately render the Commerce Clause meaningless.” Id. at *4. As for the persuasiveness or lack thereof of the Alonso decision, it was deemed not persuasive because of its failure to provide a factual background and because, “[a]s an unpublished opinion, under Eleventh Circuit Rule 36-2, Alonso is not binding precedent and is, at best, persuasive authority. However, given the fact that the court there relied on undisclosed facts in the record, the Court does not find them to be persuasive here.” Id. at *4 n.6.
Moreover, the Eleventh Circuit’s subsequent decision in Thorne explaining that activities are not rendered interstate commerce simply because the employer purchased goods which had previously moved in interstate commerce, Thorne, 448 F.3d at 1268, completely eclipses the applicability of the reasoning used by the court in Alonso. Thorne’s determination that, “[w]hen goods reach the customer for whom they were intended, the interstate journey ends and employees engaged in any further intrastate movement of the goods are not covered under the [FLSA]”, id. at 1267 (emphasis in original), cannot be reconciled with the reported Alonso decision; the Thorne court clearly distinguished and rejected Alonso, to the extent it purports to hold if an employee merely handles goods that at one time traveled interstate that employee is entitled to invoke individual coverage. See also Russell, 430 F. Supp. 2d at 526 (granting motion to dismiss for lack of subject matter jurisdiction and citing Thorne for the proposition that there is no individual coverage for employees “who handle goods after an employer acquires the goods for local disposition”). Even before Thorne, other courts had reached the same conclusion. Rivera v. Heights Landscaping, Inc., 2004 WL 434214 *4 (N.D. Ill. 2004) (holding that “‘mere use, physical touching, or consumption of goods’ that have traveled in interstate commerce is not enough [to establish individual coverage]” and “Plaintiffs cannot establish individual coverage merely by showing that in the course of their work they used rakes, fertilizers, or other goods that originated out of state”) (citing Joles v. Johnson County Youth Servs. Bureau, Inc., 885 F. Supp. 1169 (S.D. Ind.1995)). For the reasons addressed herein, the Defendants request that the Court hold that the Plaintiff has not met his burden to establish individual coverage.
C. Enterprise Coverage
Under the FLSA, unless the enterprise has $500,000 or more in gross annual revenue, and has two or more employees who are engaged in commerce or in the production of goods for commerce, the employer is not subject to the Act. 29 U.S.C. § 203(s) (1) (A) (i & ii). Section 203(s)(1)(A)(i) of the FLSA, which pertains to enterprise coverage, requires that the defendant- employer have employees engaged in commerce or in the production of goods for commerce, as follows:
(s)(1) ‘Enterprise engaged in commerce or in the production of goods for commerce’ means an enterprise that–
(A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated) . . . .
(11th Cir., Oct. 2, 2007); Francois v. Fried Green Tomatoes, Inc., 2006 WL 5097646, *2 n.1 (S.D. Fla.) (noting that these are the two elements to enterprise coverage and the parties had stipulated to the first element). Simply put, the FLSA requires an employer to pay the federal minimum wage as long as it employs two or more individuals who are engaged in commerce or in the production of goods for commerce. Id.
As stated above, it is Defendants’ position that the Plaintiff was not engaged in commerce, because all she did was perform administrative functions tied to the general management and operations of the doctor’s office, and the supplies that she used in her employment were outside of the stream of commerce by the time she used them, because they were purchased locally. (Facts ¶¶ 2-4); Polycarpe v. E & S Landscaping, Inc., 572 F. Supp. 2d 1318 (S.D. Fla. 2008) (holding that the materials, supplies, and equipment used by the plaintiffs that were purchased by the defendant from local retailers and wholesalers “had come to rest, i.e., any journey of an interstate nature had ended— and were then utilized to transact the landscaping business, which was entirely local in nature”); Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008) (holding that the instate purchase of automotive parts from wholesalers and retailers that were manufactured or traveled outside Florida does not constitute the engagement in commerce, because the parts were at rest and out of the stream of commerce), aff’d, Navarro v. Broney Automotive Repairs, Inc., – – F.3d – -, 2008 WL 2315869 (11th Cir., June 6, 2008), cert. denied, – – S. Ct. – -, 2008 WL 4144447 (2008). In Navarro, the court was clear to note that “the [automotive] parts were sent from the out-of-state wholesaler to the various local dealers, not to Broney Automotive. They were stored by the local dealers until they were purchased by Broney Automotive or other customers. The parts stopped flowing in commerce when they were delivered and stored by the local dealers.” Id. The Court concluded by stating:
Here, the FLSA coverage line is at the point where the parts were delivered and stored by the l ocal dealers. Any intra-state activity after this point is not interstate commerce for purposes of the FLSA. Id.
Moreover, in this case, High Springs did not have a gross annual revenue that exceeded $500,000. Therefore, the Plaintiff cannot establish enterprise coverage under the FLSA. Accordingly, on the authority of Bien-Aime, Polycarpe, Lamonica, Morales, Sandoval, and Scott, High Springs respectfully requests that this Honorable Court grant summary judgment in its favor as to Count I of the Compliant.
MEMORANDUM OF LAW – AS TO COUNTS II AND III
The Defendant previously requested via Summary Judgment that Count III of the complaint (i.e. breach of contract) be dismissed for lack of subject matter jurisdiction. The Court denied said motion, noting in part that “In the instant case, this Court has supplemental jurisdiction over the Plaintiff’s state law breach of contract claim because that claim arises from the same case or controversy as her FLSA claim.” Doc. 75, page 12. However, as demonstrated via the above, the Plaintiff’s FLSA claim should be dismissed as the FLSA does not apply in this circumstance. Therefore, Counts II and III (which have no independent federal jurisdiction) should be remanded to state court.
The Court may decline to exercise supplemental jurisdiction over a claim arising under state law in the following circumstances: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). Therefore, jurisdiction may be declined in the event that the court has dismissed all claims of original jurisdiction. Id. Moreover, pursuant to rule 12(h), Federal Rules of Civil Procedure, a motion for lack of subject matter jurisdiction may be raised at any point by suggestion of the parties.[3]
In this case, as noted supra, Count I of the Complaint (relating to the FLSA) should be dismissed. Therefore, per 28 U.S.C. § 1367(c), all claims over which this Court has original jurisdiction will be dismissed and subject matter jurisdiction may be declined. Moreover, as noted in the Defendant’s previous Summary Judgment Motion regarding pre-suit notice under the state law minimum wage act (consideration of which was stayed due to the early stages of the litigation), the Defendant also anticipates that Count II of the Complaint will be dismissed. See Doc. 75, page 20. Therefore, assuming the Plaintiff’s FLSA claims are dismissed, the Defendant would also urge that any remaining state law claims be dismissed in favor of state court proceedings. The end result would be that, once the FLSA claim is properly disposed of, this entire case be litigated in state court.[4]
/s/ Michael Massey________
Michael Massey
Fla. Bar No. 153680
[1] Under individual coverage jurisprudence, “commerce” and “interstate commerce” are narrower terms of art than in other areas of Commerce Clause jurisprudence. As the Supreme Court has clarified, in enacting the FLSA, Congress did not intend to exercise the full extent of its constitutional regulatory powers, and clearly intended to exempt local businesses:
[W]e cannot be unmindful that Congress in enacting this statute plainly indicated its purpose to leave local business to the protection of the states. [citations omitted]. Moreover as we stated in Kirschbaum Co. v. Walling [citations omitted], Congress did not exercise in this Act the full scope of the commerce power.
Walling v. Jacksonville Paper Co., 317 U.S. 564, 571 (1943). Further, because the FLSA manifests the “concern of Congress to avoid undue displacement of state regulation of activities of a dominantly local character . . . [t]he focus of coverage became ‘commerce’, not in the broadest constitutional sense, but in the limited sense of Section 3(b) of [the FLSA, 29 U.S.C. § 203(b)]: ‘trade, commerce, transportation, transmission, or communication among the several States . . . .’” Marshall v. Whitehead, 463 F. Supp. 1329, 1345 (M.D. Fla. 1978) (citing Mitchell v. H. B. Zachry Co., 362 U.S. 310, 315 (1960)). High Springs is a purely local, one-location, doctor’s office that does not have employees engaged in commerce or in the production of goods for commerce. This is exactly the sort of local business Congress, in enacting the FLSA, intended to leave to the regulation of the several states. Jacksonville Paper Co., 317 U.S. at 571.
[2] The Alonso opinion, in pertinent part, states as follows, in holding the plaintiff was:
‘engaged in commerce’ through his duties as a laborer transporting fumigation materials and chemicals, which had traveled in interstate commerce to defendants’ customers within the state. Although these duties required no transportation outside the state of Florida, the materials and chemicals, which had traveled in interstate commerce, continued to flow in interstate commerce until they reached Dolphin Exterminating Company’s customers. See [Brennan v. Wilson Bldg., Inc., 478 F.2d 1090 (5th Cir.1973)] at 1095 (holding elevator operators [to be] ‘engaged in commerce’ because the goods they transported continue to flow in interstate commerce until delivered to the tenants of the building). Alonso v. Dolphin Exterminating Co., 2005 WL 1901682 (11th Cir. 2005).
[3] To the extent this requires a motion to dismiss per Rule 12(h), Defendants request that the instant motion be considered as such to the extent necessary.
[4] Defendants Prieto and High Springs have a state law indemnification claim against Dr. Redacted. Assuming the remainder of this case is sent to state court, that claim (also grounded in state law) could as well as courts may raise an objection to subject matter jurisdiction on their own initiative. See e.g. Goodman v. Sipos, 259 F.3d 1327, 1331 n. 6 (11th Cir.2001) (“A federal court must always dismiss a case upon determining that it lacks subject matter jurisdiction, regardless of the stage of the proceedings, and facts outside of the pleadings may be considered as part of that determination.”); See also See Bender v. Williamsport Area Sch. Dist. 475 U.S. 534, 541, 106 S.Ct. 1326, 1331 (1986).