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Bolar v. Southern Intermodal Xpress

United States District Court, S.D. Alabama, Southern Division

September 27, 2019

TIMOTHY BOLAR, et al., Plaintiffs,
v.
SOUTHERN INTERMODAL XPRESS, et al., Defendants.

          ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants’ Motions for Summary Judgment. (Docs. 150 and 151) (“Motions”). The Motions have been fully briefed and are ripe for resolution.[1]

         Plaintiffs brought claims against Defendants Lazer Spot, Inc. (“Lazer Spot”), Lazer Spot Holdings Corp. (“Holdings”) (together “Lazer Spot Defendants”), and Southern Intermodal Xpress, LLC (“SIX”) for allegedly failing to pay Plaintiffs’ overtime wages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”). Specifically, each Plaintiff alleged that one or more Defendants misclassified them as exempt employees pursuant to the Motor Carrier Act exemption contained in 29 U.S.C. § 213(b)(1). After due consideration, and for the reasons stated in Defendants’ briefs and below, Defendants’ Motions for Summary Judgment are GRANTED, and Plaintiffs’ claims are dismissed with prejudice.

         I. BACKGROUND

         A. Procedural History

         On August 9, 2017, a group of 11 Plaintiffs, including Cleotho Mosley, Corwin Scott, and Oscar Gibson, filed suit against Defendants asserting violations of the FLSA (“Bolar”). (Doc. 1). In December 2018, the Court entered an order consolidating Bolar with a later-filed case entitled Jones, et al. v. Southern Intermodal Xpress, LLC, et al., No. 17-cv-520, in which a number of individuals sued SIX for the same FLSA violations asserted in Bolar. (Doc. 43). The consolidated cases included 20 Plaintiffs, each of whom pursued his claims on an individual basis. (Doc. 67). Of those 20 Plaintiffs, seven pursued claims against all Defendants, one pursued claims only against the Lazer Spot Defendants, and 12 pursued claims only against SIX. (Id.). Although Gibson initially asserted claims against Lazer Spot and Holdings, he later clarified that he was not employed by either entity, and pursued his claims solely against SIX. (Id.). Mosley and Scott worked for both Lazer Spot and SIX. (Id.). Over the course of the litigation, 17 Plaintiffs either withdrew their claims or failed to prosecute their claims after their counsel withdrew from representing them. (See Docs. 88-102, 108, 110, 118, 121, 129, 136, 138-140). At the time Defendants moved for summary judgment, only Mosley, Scott, and Gibson continued to prosecute their claims against Defendants.[2]

         B. Factual Background

         1. Lazer Spot and SIX Employed Drivers to Provide Spotting and Shuttling Services at the Kimberly Clark Paper Mill and Distribution Center in Mobile, Alabama

         This case arises out of the work that Plaintiffs performed when they were employed by SIX and, in the case of Mosley and Scott, by Lazer Spot, at the paper mill and distribution center operated by Kimberly Clark (“KC”) in Mobile, Alabama.[3] Plaintiffs do not assert that Defendants jointly employed them. As described below, Plaintiffs did not work for Lazer Spot and SIX at the same time. Rather, Plaintiffs Mosley and Scott worked for Lazer Spot prior to April 2015, and all three Plaintiffs worked for SIX after April 2015 when Lazer Spot ceased its operations at the KC facilities in Mobile.

         Lazer Spot is a third-party logistics company that provides transportation and yard management services to various plants, mills, and consumer-goods companies across the United States. (Doc. 150-21 at 2). Among the services it provides are spotting (i.e., moving loaded and empty trailers between two or more points, often in and around a client’s facility, and sometimes offsite) and shuttling (i.e., transporting loaded or unloaded trailers over public roads to and from a client’s facility). (Id. at 2; Doc. 150-20 at 3, 4).

         SIX, like Lazer Spot, provides transportation services to its clients and at the KC facilities. SIX’s primary business is the transport of intermodal cargo containers loaded with products to and from the Ports of Mobile and New Orleans, but a fraction of SIX’s employees provides driving services at the KC facilities in Mobile. (Doc. 152-1 at 2, 3). SIX hires all of its drivers in the same manner, regardless of whether they are assigned to work in Mobile or New Orleans and regardless of whether they are assigned intermodal or KC work. (Doc. 152-1 at 4, 5). While some drivers are ultimately assigned to primarily work at KC and some are assigned primarily to be an intermodal driver, SIX commonly moves drivers between intermodal freight and KC work. (Doc. 152-3 at 7, 8-10; Doc. 152-4 at 22; Doc. 152-9 at 36, 37).

         All Lazer Spot and SIX drivers are required to maintain commercial driver’s licenses as a condition of employment, as well as meet other standards set by the federal Department of Transportation. (Doc. 150-4 at 5). Lazer Spot and SIX are each licensed with the DOT and have Federal Motor Carrier Safety Administration (“FMCSA”) authorization necessary to act as interstate carriers. (Doc. 150-21 at 2; Doc. 152-1 at 2).

         Lazer Spot provided spotting and shuttling services at the KC facilities in Mobile until April 2015 when its contract with KC ended. (Docs. 150-2 at 3; 150-4 at 3). On April 1, 2015, SIX assumed responsibility for the spotting and shuttling needs at the KC facilities and hired at least some of the former Lazer Spot drivers; thereafter, Lazer Spot did not engage in any operations or employ any workers at the facility. (Doc. 150-20 at 3; Doc. 150-13 at 54, 55). To provide these services, Lazer Spot and SIX employed drivers who transported goods in and around the paper mill and the nearby distribution center (“DC”).

         The KC mill uses raw fiber materials, including wood pulp and recycled fibers, to manufacture finished paper products such as toilet paper, tissue paper, paper towels, and “Convermat” rolls, which are very large rolls of paper. (Doc. 150-2 at 6; Doc. 150-4 at 2; Doc. 150-13 at 25). KC’s Mobile operation consists of two main facilities-a production mill and the DC. (Doc. 150-4 at 2; Doc. 150-5 at 4, 5; Doc. 150-7 at 13, 14; Doc. 150-11; Doc. 150-13 at 25). KC also utilizes a third-party warehouse owned by Merchants Transfer Co. (“Merchants”). (Doc. 150-4 at 5; Doc. 150-5 at 8). The mill, the DC, and the Merchants warehouse are all separated by roads that are open to the public. (Doc. 150-4 at 3; Doc. 150-5 at 6; Doc. 150-7 at 13; Doc. 150-13 at 26-32, 39-41; Doc. 150-11; Doc. 150-15; Doc. 150-16; Doc. 150-17; 150-19 at 3, 4).

         Bay Bridge Road bisects the mill and the DC. The mill is located immediately north of Bay Bridge Road and the DC is located immediately south of Bay Bridge Road. (Doc. 150-4 at 3; Doc. 150-7 at 13-20; Doc. 150-13 at 26-32, 39-41; Doc. 150-15; Doc. 150-16; Doc. 150-17). Herbert Street forms a three-way intersection with the south side of Bay Bridge Road and leads to the DC. (Doc. 150-2 at 4, 5; Doc. 150-3; Doc. 150-4 at 3; Doc. 150-7 at 13-20; Doc. 150-13 at 26-32, 39-41; Doc. 150-15; Doc. 150-16; Doc. 150-17). The mill is accessible via Bay Bridge Road and Paper Mill Road, which forms a three-way intersection with the north side of Bay Bridge Road. (Doc. 150-2 at 12; Doc. 150-4 at 3; Doc. 150-7 at 28, 29; Doc. 150-13 at 43-47). Merchants is located off of Paper Mill Road, approximately 1.5 miles to the north of the KC mill. (Doc. 150-4 at 3; 150-6 at 4). Bay Bridge Road, Paper Mill Road, and Herbert Street all function as public thoroughfares and the public utilizes these streets. (Doc. 150-2 at 17, 18; Doc. 150-6 at 4; Doc. 150-5 at 7, 22-24; Doc. 150-7 at 30; Doc. 150-13 at 40, 41, 52, 53; Doc. 150-18 at 2, Ex. 1; Doc. 150-19 at 3-5).

         KC contracted with Lazer Spot and, later, SIX, to provide drivers to transport paper products and raw fiber material between the mill, the DC, and Merchants. (Doc. 150-4 at 3). KC required Lazer Spot and SIX to provide drivers to complete three types of trips over the roads around the facilities, as described below.

         KC expected all Lazer Spot and SIX drivers to be capable of performing all of the driver services under the parties’ respective contracts and did not require any drivers to be assigned solely to one area of the mill or DC. (Doc. 150-4 at 5). The Lazer Spot and SIX drivers who worked at the KC facilities in Mobile were subject to being called upon at any time to drive on public roads to transport finished paper goods and raw fiber material.[4] (Doc. 152-1 at 4; Doc. 150-5 at 11, 16; Doc. 150-6 at 5; Doc. 150-20 at 6).

         KC required Lazer Spot and SIX drivers to adhere to all DOT regulations and to maintain a commercial driver’s license. (Doc. 150-4 at 5). Per KC’s requirements, all of the Lazer Spot and SIX trucks at the Mobile facilities were licensed and tagged in a manner that allowed them to operate on the public roads around the facilities, and the vehicles had to meet annual DOT inspections. (Id.; Doc. 150-5 at 9; Doc. 152-11 at 5). The vehicles that Plaintiffs operated at the KC facilities as drivers for Lazer Spot and SIX weighed in excess of 10, 000 pounds. (Doc. 150-5 at 9, 10, 20; Doc. 150-21 at 5, Ex. 4; Doc. 152-1 at 2).

         a. Trips from the Mill to the DC

         The KC mill operates 24 hours a day, 7 days per week. (Doc. 150-4 at 4). When all three palletizers (i.e., machines that stack goods onto a pallet) were running, Lazer Spot and SIX drivers were required to make approximately 21 trips from the mill to the DC per day. (Id.; Doc. 150-5 at 19, 25).

         When the palletized paper products left the mill, they were ready to be transported to KC’s customers. The goods were not modified or re-packaged once they left the mill. (Doc. 150-2 at 13, 14, 18, 20-22). KC distributed the paper products manufactured at its mill to customers throughout the country. A significant portion of the finished paper products were sent to out-of-state customers, including customers in Georgia, Texas, Florida, Ohio, South Carolina, and Illinois. (Doc. 150-4 at 2, 4; Doc. 150-5 at 21).[5]

         These interstate transports were triggered by orders from out-of-state customers. (Doc. 150-2 at 18; Doc. 150-4 at 2, 4; Doc. 150-5 at 17). KC’s corporate representative testified that when the goods left the mill, KC intended and expected that the goods would continue on in an interstate trip to reach the customers who ordered the goods. (Doc. 150-4 at 4). In many cases, over-the-road drivers picked up and transported the paper products across state lines the very same day that Lazer Spot or SIX drivers delivered the goods from the mill to the DC. (Doc. 150-5 at 17). Even when the goods did not immediately leave the DC after Lazer Spot or SIX drivers delivered them there, over-the-road drivers typically picked them up within eight to twelve hours. (Id. at 18).

         To complete the trip from the mill to the DC, drivers exited the mill through a gate, crossed over Bay Bridge Road, drove down Herbert Street, and passed by a guard shack at the end of Herbert Street to enter the DC. (Doc. 150-4 at 3; Doc. 150-13 at 35-40).

         b. Raw Fiber Transports from the DC to the Mill

         The raw fiber transported from the DC to the mill by Lazer Spot and SIX drivers was also part of an interstate journey, albeit an inbound (rather than outbound) journey. The raw fiber [?] was purchased by KC and shipped to its DC from outside of Alabama. (Doc. 150-2 at 6-9) (KC ordered “pulp from as far away as South America and the Arctic Circle and Canada” and ordered “recovered paper … from all over, ” including “as far away as Wisconsin”); see also Doc. 150-13 at 47 (Defendant Scott testifying that he had no knowledge of the origin point of the raw fiber before it arrived at the DC); (Doc. 150-7 at 25, 26). The final destination of the raw fiber was the mill, where it was utilized by KC to manufacture paper products. (Doc. 150-2 at 6-11; see also Doc. 150-13 at 44). The raw fiber came to rest briefly at the DC before Lazer Spot and SIX drivers picked it up and moved it to the mill. (Doc. 150-6 at 4).

         To retrieve and deliver the raw fiber, Lazer Spot and SIX drivers exited the mill onto Paper Mill Road through a non-gated entrance referred to as the “construction entrance, ” turned left onto Paper Mill Road, turned left on Bay Bridge Road, turned right onto Herbert Street, and drove down Herbert Street to enter the DC (and vice versa). (Doc. 150-2 at 12; Doc. 150-4 at 3; Doc. 150-13 at 26-32, 43-47; Doc. 150-15; Doc. 150-16; Doc. 150-17).

         c. Transports of Convermat to Merchants Transfer

         KC also produced finished “Convermat” rolls, which were transferred by Lazer Spot and SIX drivers to Merchants and then shipped out of state to KC’s customer, Convermat. (Doc. 150-4 at 5).[6] KC required Lazer Spot and SIX drivers to be available to transport Convermat loads at least 15 days per month. (Doc. 150-2 at 19, 20-22; Doc. 150-5 at 8, 12; Doc. 152-10 at 26, 27). Convermat is a paper distributor who purchases the rolls from KC and delivers them to customers around the country. (Doc. 152-12 at 4, 5). The finished paper rolls are temporarily stored at Merchants an average of 10 days. No further production or changes occur to the rolls while at Merchants. (Id. at 7, 20, 21, 26, 27; Doc. 152-11 at 5; Doc. 152-12 at 8, 18, 19).

         Merchants is located at 1200 Paper Mill Road, approximately one mile from KC. (Doc. 152-12 at 3, 34). It is undisputed that Paper Mill Road is a public road, and that at least two of the remaining Plaintiffs drove loads of Convermat to Merchants.[7]

         To deliver a Convermat load, Lazer Spot and SIX drivers exited the mill through the construction entrance, turned right onto Paper Mill Road, and traveled approximately 1.5 miles on Paper Mill Road to reach the warehouse. (Doc. 150-5 at 25, 26; Doc. 150-6 at 4; Doc. 150-13 at 51-53).

         2. Plaintiff Mosley’s Employment with Lazer Spot and SIX

         Lazer Spot hired Plaintiff Cleotho Mosley on April 16, 2014, and he worked for the Company as a driver until April 1, 2015. (Doc. 150-7 at 3, 4, 27). Mosley worked at both the mill and the DC. (Id. at 21). Two of Mosley’s co-workers, including his co-Plaintiffs testified that they witnessed him transporting goods on public roads during his employment with Lazer Spot. Scott testified that he saw Mosley drive across Bay Bridge Road and down Herbert Street to take trailers of palletized finished paper products from the mill to the DC. (Doc. 150-13 at 57, 58). Byron Nettles, another former Lazer Spot employee who regularly worked alongside Mosley, witnessed Mosley (i) transporting finished paper products from the mill to the DC, (ii) transporting Convermat loads from the mill to Merchants, and (iii) transporting loads of raw fiber from the DC to the mill. (Doc. 150-12 at 6-10).

         Consistent with these witness accounts, Plaintiff Mosley testified in his verified answers to Lazer Spot’s interrogatories that he drove Lazer Spot vehicles to various locations. (Doc. 26 at 4). During his deposition, Mosley contradicted his own verified answers, which he admitted he signed but said he did not review, by asserting that he did not transport goods on these public roads. (Doc. 150-7 at 16). He conceded that, as a Lazer Spot driver, he was required to be willing and able to transport goods on public roads. (Id. at 24-25; Doc. 152-1).

         When SIX took over the KC contract from Lazer Spot in 2015, Mosley applied for a driver position and was hired by SIX and assigned to KC. (Doc. 152-2 at 3, 7, 8). Mosley became a lead driver for SIX during the last week of April 2017. (Doc. 152-17 at 2). As a driver and a lead driver, Mosley transported finished tissue paper from the mill to the DC. (Doc. 152-2 at 16-18, 25, 26; Doc. 152-18). He also transported Convermat loads to Merchants. (Doc. 152-2 at 5, 6, 15, 16, 24, 25, 29-36 (confirming at least one Convermat trip per month between September 2016 -August 2017); Doc. 152-18). Mosley performed both tasks on a regular basis. (Id.). Mosley’s driving activities for SIX are confirmed by witness accounts, move sheets, and GPS data.[8] (See generally Doc. 151 at 15-18). And Mosley, like the other drivers, was subject to being called upon to drive on public roads to transport KC’s finished products. (Doc. 152-1 at 4).

         3. Plaintiff Scott’s Employment with Lazer Spot and SIX

         Lazer Spot hired Scott as a driver in September 2014. He continued to work for Lazer Spot until April 1, 2015. (Doc. 150-13 at 9, 10, 55). Scott testified that, during his employment with Lazer Spot, he spent approximately 40% of his time driving from the mill to the DC to deliver trailers loaded with pallets of finished paper products that were bound for out-of-state destinations; this work was, in Scott’s words, “an everyday job.” (Id. at 42, 43, 59).[9 ...


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