The FLSA regulates activities "constituting" interstate commerce, not activities "merely affecting" it. Thorne , 448 F.3d at 1266 (quoting McLeod v. Threlkeld , 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943) ); see alsoZarate v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1335 (S.D. Fla. 2009) (citing Johnston v. Spacefone Corp., 706 F.2d 1178, 1182 (11th Cir. 1983) ) ("Congress's primary purpose in refusing to extend FLSA's coverage to its constitutional maximum was to leave regulation of ‘local’ business to the states."). "To establish an FLSA claim, a plaintiff must show, among other things, either ‘individual coverage’ or ‘enterprise coverage.’ "
The liability of the individual Defendant Miguel Matos is derivative to the corporation. Because summary judgment is entered in favor of the corporation, it must also be entered on behalf of the individual Defendant Miguel Matos. Zarate v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1336 (S.D. Fla. 2009). DONE AND ORDERED in Chambers at Miami, Florida, this 1st of March 2016.
See also29 C.F.R. § 776.10(b) (“This does not mean that any use by an employee of the mails and other channels of communication is sufficient to establish coverage. But if the employee, as a regular and recurrent part of his duties, uses such instrumentalities in obtaining or communicating information ... he comes within the scope of the Act....”); Dent v. Giaimo, 606 F.Supp.2d 1357, 1361 (S.D.Fla.2009) (fact that “job duties included contacting out of state insurance companies” does not satisfy commerce requirement where plaintiff fails to show those activities are “regular[ ] and recurrent[ ]”); Zarate v. Jamie Underground, Inc., 629 F.Supp.2d 1328, 1332 (S.D.Fla.2009) (any use of the Internet alone is insufficient to satisfy commerce requirement for enterprise coverage); Curry v. High Springs Family Practice and Diagnosis Ctr., Inc., No. 1:08cv00008–MP–AK, 2009 WL 3163221, *3 (N.D.Fla. Sep. 30, 2009) (use of instruments of interstate communications such as the Internet satisfies commerce requirement only where that use is “regular and recurring”); Bowrin v. Catholic Guardian Soc'y, 417 F.Supp.2d 449, 468 (S.D.N.Y.2006) (“[T]ypically it is the use of the interstate mails and placement of out-of-state phone calls occurring in the course of conducting an organization's clerical or administrative business that appear to trigger individual coverage, if ‘regular and recurrent’ and a ‘substantial part’ of the employee's work.”). So the question here is two-fold: Is Dean's use of the Internet regular and recurrent, and are Dean's activities on the Internet—searching and downloading recipes off foodnetwork.com and similar sites—qualitatively sufficient to c
Thus, the Court can only speculate as to how exactly Plaintiff is attempting to allege enterprise coverage. See Zarate v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1335-36 (S.D. Fla. 2009). Therefore, Plaintiff has failed to provide "a short and plain statement of the grounds for the court's jurisdiction."
Defendants' first argument is rejected as the Court has already found that enterprise coverage rests on disputed issues of fact, and therefore, Bravo, Raly, and General Recycling remain subject to suit. As such, it cannot be concluded that the individual defendants lack derivative liability simply because the corporations are not liable — as the court found in Zarate v. Jamie Underground, Inc., 629 F. Supp. 2d 1328, 1336 (S.D. Fla. 2009) (citation omitted) — because here, the liability of Bravo, Raly, and General Recycling is not yet determined. Defendants' alternative argument presents no reasoning why summary judgment is appropriate.
IV. Robert Stamm Although Defendants did not move for summary judgment as to Stamm, because an individual defendant's liability is only derivative to that of the corporate defendant, the Court will grant summary judgment as to Stamm on Stamm's Notice of Joinder in Bennett Auto's Motion for Final Summary Judgment. Zarate v. Jamie Underground, Inc., 629 F.Supp.2d 1328, 1336 (S.D.Fla. 2009); Milbourn v. Aarmada Protection Sys. 2000, Inc., 588 F.Supp.2d 1341, 1346 (S.D.Fla. 2008). Based on the above, it is hereby,
He argues that the liability of an individual decision maker is derivative and since Dental Care was the direct employer and liability and damages have been awarded against it, Ahmed cannot collaterally attack the determination of those issues. He cites Zarate v. Jamie Underground, Inc., 629 F.Supp.2d 1328 (2009) in support of this position. A review of that case, however, reveals it is clearly inapplicable here.