Opinion
CIVIL ACTION NO.: 3:09cv456-DPJ-FKB.
June 14, 2010
ORDER
This wage and hour dispute is before the Court on the motion for summary judgment [15] and motion to strike [21] filed by Defendant Brown Bottling Group, Inc. ("Brown Bottling"). The Court, having fully considered the parties' submissions and the applicable law, finds that Defendant's motion for summary judgment is well taken and should be granted, its motion to strike should be denied as moot.
I. Facts/Procedural Issue
Plaintiffs are former delivery drivers for Brown Bottling who were not paid overtime despite working more than forty (40) hours in a workweek. As a result, Plaintiffs filed suit in August 2010 claiming that Defendant violated the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201 et seq. Plaintiffs sued on their own behalf and on behalf of all similarly situated employees. They thereafter moved for class certification "to include all individuals that have been employed as driver merchandisers and cart delivery merchandisers for the Defendant's bottling division in the past three (3) years." Pl.'s Mot. [12] ¶ 9.
Defendant has now moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, claiming that no overtime was due because Plaintiffs were exempt from the act. Defendant also filed a motion [21] to strike the affidavit of its former employee Willie Harris, which Plaintiffs submitted in support of their response to the summary judgment motion.
It is important to note that this is not the only class action suit filed against Brown Bottling on behalf of this same putative class of workers. On May 15, 2009, former employee Calvin Taylor sued Brown Bottling on behalf of himself and others similarly situated in a case docketed in this district as Civil Action No. 3:09cv299-WHB-LRA (hereinafter the "Taylor suit"). The Taylor suit was the first filed of these two identical causes against the same defendant on behalf of the same putative class. On June 4, 2010, Judge William H. Barbour granted summary judgment in the Taylor suit based on grounds identical to those raised in Defendant's present motion. Personal and subject matter jurisdiction exist, and the Court concludes that it should follow Judge Barbour's well-reasoned opinion.
This order was recently entered and has not yet appeared in electronic format. However, the order comes from this district and division, is directly on point as to these specific facts, and provides a thorough analysis of the issues. It is therefore attached hereto.
II. Standard
III. Analysis
Celotex Corp. v. Catrett 477 U.S. 317322 29 U.S.C. § 20729 U.S.C. § 213Siller v. L F Distribs., Ltd.1997 WL 11490729 U.S.C. § 213
According to the regulations promulgated by the FLSA, the Secretary of Transportation has power to establish qualifications and maximum hours of service if employees are: (1) employed by carriers whose transportation of property or passengers is subject to the Secretary of Transportation's jurisdiction under the Motor Carrier Act ("MCA"); and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways [of] passengers or property in interstate or foreign commerce withing the meaning of the MCA.Id. (citing 29 C.F.R. § 782.2(a)).
The parties agree that the first prong of this test has been satisfied, but dispute the second. As to the second, the driver must first affect "the safety of operation of motor vehicles in the transportation on the public highways." Id. Plaintiffs state in response that this element has not been demonstrated, but they fail to explain the argument, which is not persuasive. See 29 C.F.R. § 782.3 (explaining definition of "driver" and when a driver "directly affects `safety of operation'"). Accordingly, whether Brown Bottling is exempt from the FLSA as to these employees turns on whether the drivers transported "property in interstate or foreign commerce within the meaning of the Motor Carrier Act." 29 C.F.R. § 782.2(a).
During the relevant years, Plaintiffs did not drive their trucks across state lines. As noted by the Fifth Circuit,
[w]hether transportation between two points in a single state is interstate or intrastate depends on the "essential character" of the shipment. The critical factor in determining the shipment's essential character is the fixed and persisting intent of the shipper at the time of the shipment. The totality of the facts and circumstances will determine whether a shipper has the requisite intent to move goods continuously in interstate commerce.Merchs. Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 917 (5th Cir. 1993) (internal citations omitted).
Looking more specifically at the facts of this case, the parties agree that Brown Bottling received deliveries of Pepsi products from outside the state of Mississippi; that the products were not altered while in storage although they were sorted for further distribution; and that the products remained in Defendant's warehouse for twelve to sixteen days before its drivers, including Plaintiffs, would deliver them to various retail outlets. Upon delivering the merchandise, the drivers collected certain shipping items such as empty plastic shells and returned them to the warehouse, where they were picked up and returned to their out-of-state locations of origin.
As to this last undisputed fact, Defendant contends that the transportation of these items alone satisfies the interstate commerce component of the MCA. See Foxworthy v. Hiland Dairy Co., 997 F.2d 670, 674 (10th Cir. 1993) (holding that "the regular pickup of empty containers, destined for out-of-state facilities, both placed employees in interstate commerce and exempted them from the overtime provisions of the FLSA" (citations omitted)). Plaintiff offered no countervailing authority and failed to rebut this argument. As Judge Barbour noted in his order, "[c]ourts have routinely found that the act of retrieving and returning shipping containers to out-of-state locations constitutes interstate commerce for the purposes of the motor carrier exemption." Ex. A at 13 (citing Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 224 (2d Cir. 2002) (collecting cases); Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992)) (other citations omitted). Plaintiffs transported items in interstate commerce.
Defendant offers additional arguments for dismissal that this Court accepts. However, because Judge Barbour thoroughly examined these same legal arguments in the attached order, this Court will merely echo the holding that Brown Bottling satisfied the requirements of the MCA as to its drivers. Finally, the only factual distinctions between this record and the one considered in the Taylor suit offer no basis for a different result. Here, the parties quibble over the number of days inventory stayed in the warehouse, but the MCA would apply even accepting Plaintiffs' sixteen day estimate. See Siller, 1997 WL 114907, at *2 (applying MCA exemption where product remained in warehouse for six (6) to twenty-eight (28) days). Plaintiffs also offer somewhat conflicting affidavits from former Brown Bottling employee Willie Harris with respect to Defendant's motive for filling its warehouse. Ex. A to Pl.'s Resp. [19]. Harris claims that product was purchased merely to fill the warehouse in anticipation of prospective sales and customers. Ex. A to Pl.'s Resp. [19] ¶ 9; Ex. A to Pl.'s Resp. [25] ¶ 6. However, Harris agrees with Defendant that orders were placed by Brown Bottling based in part on its historical sales data and forecasts. This issue was discussed in Judge Barbour's opinion. Having independently considered all of Plaintiff's arguments, the Court finds that the MCA applies.
District courts are not bound to follow horizontal stare decisis, even from within the same district. Sw. Bell Tel., L.P. v. Arthur Collins, Inc., No. 3:04-CV-0669-B, 2005 WL 6225305, at *5 (N.D. Tex. Oct. 14, 2005). However, some courts consider such opinions "persuasive and highly relevant." Id. (citations omitted). In the present case, the Court has conducted its own review of the issues and concludes that the MCA applies. However, it is worth noting that a contrary result would raise issues with respect to the preclusive effect of Judge Barbour's ruling, given that the individual plaintiff in that case is a potential class member in this case. Moreover, denying the present motion would allow a potential class action based on wage and hour claims against the same defendant that have already been dismissed as to the same putative class. These cases will proceed in the same procedural posture if the parties wish to exercise their right of appeal.
IV. Conclusion
The Court has considered all arguments raised in the parties' various submissions. Those issues not directly addressed herein would not change the result of this opinion. For the reasons stated herein, and for the reasons stated more fully in Judge Barbour's opinion in the Taylor suit, the Court finds that Defendant Brown Bottling is entitled to summary judgment even considering the challenged Harris affidavit. Defendant's motion for summary judgment is granted; Defendant's motion to strike the Harris affidavit is denied as moot. A separate judgment will be entered pursuant to Rule 58 of the Federal Rules of Civil Procedure. All other pending motions are likewise denied as moot.
SO ORDERED AND ADJUDGED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CALVIN TAYLOR, on Behalf of Himself and Others Similarly Situated PLAINTIFF VS. CIVIL ACTION NO. 3:09-cv-299-WHB-LRA BROWN BOTTLING GROUP, LLC DEFENDANT
Although the style of this case suggests that it is a class action, Plaintiff has not made any attempts to seek class certification or to otherwise represent potential claimants in this case. As such, the Court considers only the claims made by Plaintiff on his own behalf.
OPINION AND ORDER
This cause is before the Court on the Motion of Defendant for Summary Judgment. Having considered the Motion, Response, Rebuttal, attachments to the pleadings, as well as supporting and opposing authorities, the Court finds the Motion is well taken and should be granted.I. Factual Background and Procedural History
Defendant, Brown Bottling Group, LLC ("Brown Bottling"), is a distributor of Pepsi soft drink products ("Pepsi products") in Mississippi and Alabama. During the time period relevant to this dispute, the Pepsi products delivered by Brown Bottling to its customers were primarily transported to its warehouses from two Pepsi America facilities, one located in Reserve, Louisiana, and the other in Collierville, Tennessee. According to the pleadings, Brown Bottling orders soft drink products from Pepsi America based on historical sales data and anticipated sales from upcoming promotions planned by its customers. Pepsi America then delivers the ordered Pepsi products to the Brown Bottling warehouses on pallets or shells, where they are unloaded and stored. According to Brown Bottling, the average turn around time for Pepsi products in the warehouses is twelve days.
Beginning in January of 2009, Brown Bottling began receiving some of its Pepsi products from a bottling facility in Hattiesburg, Mississippi. As Plaintiff's employment with Brown Bottling ended in February 2008, this fact is not relevant in this case.
The Pepsi products from the warehouses are then loaded onto Brown Bottling trucks for delivery to its local customers. In addition to delivering the Pepsi products, drivers for Brown Bottling also retrieve from customers the empty pallets and shells on which the Pepsi products were shipped and return them to the warehouses. According to Brown Bottling, Pepsi America charges it a deposit on both the pallets and shells. While customers of Brown Bottling are not charged a deposit on the pallets, they are charged a $1.60 deposit on the shells. Upon return to the warehouses the empty pallets and shells are shipped back to the Pepsi America facilities, and the deposits paid by Brown Bottling for the pallets and shells are refunded.
As understood by the Court, Pepsi America trucks deliver Pepsi products from Louisiana and Tennessee to the Brown Bottling warehouses in Mississippi. After the Pepsi products are delivered, empty pallets and shells in the Brown Bottling warehouses are loaded onto the Pepsi America trucks and returned to Louisiana and/or Tennessee by way of return trip.
Plaintiff, Calvin Taylor ("Taylor"), was employed by Brown Bottling as a delivery route driver from 1996 until February 8, 2008. On May 15, 2009, Taylor filed a lawsuit in this Court seeking to recover unpaid overtime compensation under the Fair Labor Standards Act ("FLSA"), codified at 29 U.S.C. § 216(b). As Taylor has alleged a claim arising under federal law, the Court may properly exercise subject matter jurisdiction in this case pursuant to 28 U.S.C. § 1331. Brown Bottling has now moved for summary judgment on Taylor's claim arguing that it was not required to pay him overtime based on the motor carrier exemption to the FLSA.
II. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment "shall be rendered forthwith if 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." FED. R. CIV. P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also,Moore v. Mississippi Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989); Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988).
The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record in the case which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The movant need not, however, support the motion with materials that negate the opponent's claim. Id. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. Id. at 323-24. The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324.
Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. It is improper for the district court to "resolve factual disputes by weighing conflicting evidence, . . . since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Summary judgment is also improper where the court merely believes it unlikely that the non-moving party will prevail at trial. National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962).
III. Discussion
Under the FLSA, employees engaging in commerce are not permitted to work "for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). The FLSA, however, exempts from this overtime requirement "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49 . . ." 29 U.S.C. § 213(b)(1). This exemption, commonly referred to as the motor carrier exemption, like the other exemptions to the FLSA "are construed narrowly against the employer, and the employer bears the burden of proving the applicability of a claimed exemption." See Barefoot v. Mid-America Dairymen, Inc., No. 93-1684, 1994 WL 57686 at *2 (5th Cir. Feb 18, 1994) (citing Smith v. City of Jackson, Miss., 954 F.2d 296, 298 (5th Cir. 1992); Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990)).
The motor carrier exemption applies to any employee over whom the Secretary of Transportation has the authority to regulate qualifications and maximum hours of service, regardless of whether that authority is actually exercised. See e.g. Levinson v. Spector Motor Serv., 330 U.S. 649, 678 (1947). Under the controlling regulations, the authority of the Secretary of Transportation to establish qualifications and maximum hours of service extends to employees who: "(1) [a]re employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act", and "(2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act." 29 C.F.R. § 782.2(a). Before the motor carrier exemption to the FLSA applies, both of the above enumerated factors must be satisfied.
First, for the motor carrier exemption to apply in this case, Brown Bottling must be a "carrier[] whose transportation of . . . property by motor vehicle is subject to [the Secretary of Transportation's] jurisdiction." The Secretary of Transportation has jurisdiction over, inter alia:
[T]ransportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both, are transported by motor carrier —
(1) between a place in —
(A) a State and a place in another State;
(B) a State and another place in the same State through another State; . . .49 U.S.C. § 13501(1)(A) (B). "A carrier engages in interstate commerce by either actually transporting goods across state lines or transporting within a single state goods that are in the flow of interstate commerce." Barefoot, 1994 WL 57686, at *2 (citing Merchant's Fast Motor Lines, Inc. v. I.C.C., 528 F.2d 1042, 1044 (5th Cir. 1976)).
Here, the record shows that Brown Bottling does transport Pepsi products across state lines, specifically from Mississippi to Alabama.See Rebuttal [Docket No. 23], Ex. 1 (Dep. of Brown Bottling Rule 30(b)(6) deponent), at 24-25 (testifying that drivers from its Meridian, Mississippi, warehouse transport products to a "couple of counties in Alabama" that are serviced by Brown Bottling). Additionally, Brown Bottling has submitted evidence showing that it "is licensed with the [Department of Transportation ("DOT")], holds all authorizations for the Federal Motor Carrier Safety Administration necessary to be considered a registered federal motor carrier, has been issued a DOT number[,] and has been audited by the DOT in the past." Mot. for Summ. J., Ex. A (Jack Taylor Aff.) at ¶ 13; id. at Ex. B (DOT Records). Courts have found that "[e]vidence that a carrier has a permit or license from the Department of Transportation is sufficient to prove jurisdiction."Vidinliev v. Carey Int'l, Inc., 581 F. Supp. 2d 1281, 1285 (N.D. Ga. 2008) (citing Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180, 182 (11th Cir. 1991) ("In fact, the permit issued by the [Department of Transportation] indicates that jurisdiction has already been exercised.")). Taylor does not dispute either that Brown Bottling transports Pepsi products across state lines or that Brown Bottling is licensed with the DOT. Accordingly, the Court finds that Taylor has failed to show that there exists a genuine issue of material fact with regard to whether Brown Bottling is motor carrier subject to the jurisdiction of the Secretary of Transportation and, therefore, has failed to show that there exists a genuine issue of material fact with regard to whether Brown Bottling has satisfied the first requirement for establishing the motor carrier exemption under the FLSA.
Second, for the motor carrier exemption to apply in this case, Taylor's employment must also have directly affected the safety of operation of vehicles on the public highways, and he must have been engaged in interstate commerce. 29 C.F.R. § 782.2(a). Here, Taylor does not dispute that he was employed by Brown Bottling as a delivery route driver and "operated a vehicle, on the vast majority of the days he worked, weighing in excess of 26,000 pounds." Mot. for Summ. J., Ex. A, ¶¶ 2-3. A "driver" is one of the recognized occupations "engage[d] in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways." See e.g. 29 C.F.R. § 782.3; 29 C.F.R. § 782.2(b)(2) (explaining that the motor carrier exemption "is applicable, under decisions of the U.S. Supreme Court, to those employees and those only whose work involves engagement in activities consisting wholly or in part of a class of work which is defined: (i) As that of a driver, driver's helper, loader, or mechanic . . ."). See also Barefoot, 1994 WL 57686 at *3 ("The plaintiffs, as truck drivers, clearly engaged in activities directly affecting the safety of operation of vehicles on public highways.") (citing Shew v. Southland Corp. (Cabell's Dairy Div., 370 F.2d 376, 380 (5th Cir. 1966); Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962)). As Taylor does not dispute that he was employed as a driver by Brown Bottling, the Court finds there does not exist a genuine issue of material fact with regard to whether his employment directly affected the safety of operation of vehicles on the public highways.
Before the second factor of the motor carrier exemption can be satisfied, there must be a showing that Taylor engaged in interstate commerce. This showing can be made through either "the actual transport of goods across state lines or the intrastate transport of goods in the flow of interstate commerce." Barefoot, 1994 WL 57686 at *3 (citing Merchants Fast Motor Lines, Inc. v. I.C.C., 528 F.2d 1042, 1044 (5th Cir. 1976) ("Traffic need not physically cross state lines to be in interstate commerce, if the goods carried are in the course of through transit.")). See also 29 C.F.R. § 782.7(b)(1) (explaining that "[h]ighway transportation by motor vehicle from one State to another, in the course of which the vehicles cross the State line, clearly constitutes interstate commerce. The result is no different where the vehicles do not actually cross State lines but operate solely within a single State, if what is being transported is actually moving in interstate commerce.").
There has been no showing that Taylor actually transported Pepsi products across state lines while he was employed by Brown Bottling. Thus, in order to satisfy the second factor of the motor carrier exemption, there must be a showing that Taylor was engaged in the intrastate transportation of goods in the flow of interstate commerce. On this issue, the United States Court of Appeals for the Fifth Circuit has found that "whether transportation between two points in a single state is interstate or intrastate depends on the `essential character' of the shipment." Merchants Fast Motor Lines, Inc. v. I.C.C., 5 F.3d 911, 917 (5th Cir. 1993) (citations omitted). "The critical factor in determining the shipment's essential character is the fixed and persistent intent of the shipper at the time of shipment. Id. Whether a shipper has the requisite intent to move goods continuously in interstate commerce depends on the totality of the facts and circumstances in each case. Id. Some of the factors considered when determining the shipper's intent "in deciding whether the traffic remains interstate commerce on its in-state leg of the journey" include: (1) whether a single shipper has control over both the inbound and outbound movements to and from the warehouse; (2) whether the shipments are made pursuant to specific orders or customer estimates of need which predict how much product will eventually be delivered to each customer; (3) how many customers the storage facility serves; (4) how rapidly the product moves through the storage facility; (5) whether the shipment is made pursuant to a storage-in-transit provision in an appropriate tariff; and (6) whether the product goes through additional processing or manufacture at the storage facility. Siller v. L F Distributors, Ltd., No. 96-40549, 1997 WL 114907, at *2 (5th Cir. Feb. 18, 1997) (internal citations omitted).
Here, the record shows that Brown Bottling has a franchise agreement with Pepsi North America to distribute Pepsi products. See Rebuttal, Ex. 1, at 44-45. Brown Bottling orders its Pepsi products from Pepsi America, which is identified as a bottle distributor, based on historical sales data and anticipated sales from upcoming promotions planned by its customers. See e.g. Mot. for Summ. J., Ex. A, ¶ 12; Rebuttal, Ex. 1, 26-27. Although Taylor challenges this evidence because it does not show that the shipments of Pepsi products to Brown Bottling were made pursuant to specific customer orders, under the policy statement of the Department of Transportation such evidence may be considered when determining the interstate nature of transported goods. See Granville v. Dupar, Inc., Civil Action No. H-08-2537, 2009 WL 3255292 at *10 (S.D. Tex. Sept. 25, 2009) (explaining that the totality of the circumstances test applied when assessing the potential interstate nature of transport is "best summarized" in the 1992 Policy Statement of the DOT that provides, in relevant part: "Although the shipper does not know in advance the ultimate destination of specific shipments, it bases its determination of the total volume shipped through the warehouse on projections of customer demand that have some factual basis, rather than a mere plan to solicit future sales within the State. The factual basis for projecting customer demand may include, but is not limited to, historic sales in the State, actual present orders, relevant market surveys of need."). The record also shows that the average turn-around time for Pepsi products at Brown Bottling was approximately twelve days, and that the Pepsi products received by Brown Bottling were not subjected to any additional processing or modifications after they were received. Thus, under the totality of the circumstances, it appears that Taylor's in-state distribution of Pepsi products, all of which originated out-of state, would satisfy the interstate commerce requirement necessary for applying the motor carrier exemption in this case.
Additionally, the record shows that as a driver, Taylor was required to retrieve the empty pallets and shells on which Pepsi products had been delivered to Brown Bottling customers. See Mot. for Summ. J., Ex. A, ¶ 8; Rebuttal, Ex. 1, 34-35. Brown Bottling was thereafter required to return the empty pallets and shells to Pepsi America in order to have the $1.60 deposit it paid on each pallet and shell refunded. See Rebuttal, Ex. 1, 34-35. The empty pallets and shells were returned to Pepsi America by way of return trip, i.e. after the Pepsi products were delivered to the Brown Bottling warehouses from the Pepsi America facilities in Louisiana and Tennessee, Brown Bottling would load the empty pallets and shells on the Pepsi America trucks for the purpose of returning them to the Pepsi America facilities. See Rebuttal, Ex. 1, 35. Courts have routinely found that the act of retrieving and returning shipping containers to out-of-state locations constitutes interstate commerce for the purpose of the motor carrier exemption. See Bilyou v. Duchess Beer Distribs., Inc., 300 F.3d 217, 224 (2d Cir. 2002) (finding that a driver's regular pick-up and return of empty beverage containers "for further shipment several times a week to destinations outside the [s]tate" constituted interstate transport for the purpose of the motor carrier exemption because, even though the driver's "carriage of the empties took place entirely within [one state], his carriage was merely one leg of a route to an out-of-state destination."); Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992) ("The regular pick up of empty containers destined for out-of-state bottling facilities has been held to both place employees in interstate commerce and exempt them from the overtime provisions of the FLSA under the motor carrier exemption.");Apelike Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 41-42 (5th Cir. 1962) (finding that the collection and return of empty containers to an out-of-state brewery constituted an interstate movement of goods in a case in which it was clear that the out-of-state brewery was the intended final destination of the containers at the time they were collected).
For these reasons, the Court finds there does not exist a genuine issue of material fact with regard to whether Taylor was engaged in the transportation of goods in the flow of interstate commerce while employed as a driver by Brown Bottling.
In sum, as Taylor has not shown that a genuine issue of material fact exists with regard to whether either factor of the motor carrier exemption has been satisfied in this case, the Court finds that he is not entitled to overtime compensation under the FSLA based on this exemption. Accordingly, the Court will grant the Motion of Brown Bottling for Summary Judgment, and dismiss this case with prejudice.
IV. Conclusion
For the foregoing reasons:IT IS THEREFORE ORDERED that the Motion of Defendant, Brown Bottling Group, Inc., for Summary Judgment [Docket No. 14] is hereby granted.
A Final Judgment dismissing this case with prejudice shall be entered this day.
SO ORDERED this the 4th day of June, 2010.s/William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE