United States District Court, S.D. Alabama, Southern Division
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
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.
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.
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.
Lazer Spot and SIX Employed Drivers to Provide Spotting and
Shuttling Services at the Kimberly Clark
Paper Mill and Distribution Center in Mobile,
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. 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.
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).
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
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).
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”).
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).
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).
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
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. (Doc. 152-1 at 4;
Doc. 150-5 at 11, 16; Doc. 150-6 at 5; Doc. 150-20 at 6).
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).
Trips from the Mill to the DC
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).
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).
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).
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
Raw Fiber Transports from the DC to the Mill
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).
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).
Transports of Convermat to Merchants Transfer
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). 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).
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
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).
Plaintiff Mosley’s Employment with Lazer Spot and
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).
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;
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. (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).
Plaintiff Scott’s Employment with Lazer Spot and
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 ...