Romero v. Funes, No. 4:2011cv03373 - Document 28 (S.D. Tex. 2013)
Court Description: MEMORANDUM OPINION AND ORDER denying 11 Opposed MOTION to Certify Class, granting 18 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DIRK ROMERO, Individually and on Behalf of All Similarly Situated Parties, Plaintiffs, v. § § § § § § § § CIVIL ACTION NO 5 JOSE AGUSTIN FUNES, Individually and d/b/a HOUSTON COUNTIES PATROL, § § § § Defendant. MEMORANDUM OPINION AND ORDER Plaintiff Dirk Romero brings this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. Pending before the court is Defendant Jose Agustin Funes' Motion for Summary Judgment ("Motion for Summary Judgment") (Docket Entry No. 18) . For the reasons explained below, the court will grant the motion. I. Backaround Funes, doing business as Houston Counties Patrol, provides security guard services to various businesses in Houston, Texas.' From 2007 to 2011 Romero was employed by Funes as a security guard, 'sworn Declaration of Jose Agustin Funes ("Funes Declaration"), Ex. 1 to Motion for Summary Judgment, Docket Entry NO. 18-1. Romero alleges that he was paid earning wages at an hourly rate.' at the same hourly rate for all hours worked up to and in excess of forty each week. Romero filed his collective action complaint on September 15, 2011, asserting a claim that Funes failed to pay overtime wages in violation of the FLSA, 29 U. S.C. § 207 (a)(1).4 Romero alleges that he "consistently worked 49 hours per week" but was never paid the required overtime premium for hours worked in excess of forty.5 Romero seeks to recover all unpaid wages, overtime compensation, and liquidated damages for time worked in excess of forty hours per week for the three-year period preceding the filing of the suit.6 Funes moved for summary judgment on August 28, 2012, arguing that Romero is not protected by the FLSA's overtime provision^.^ Funes contends that the overtime provisions do not apply because (1) Romero was not personally engaged in commerce while working as a security guard and (2) Funes does not constitute an enterprise '~eclaration of Dirk Romero ("Romero Declaration"), Ex. D to Plaintiff's Response to Motion for Summary Judgment ("Response"), Oral Deposition of Jose Agustin Funes Docket Entry No. 24-3; ("Funes Deposition"), Docket Entry No. 25, p. 19. 3~omero Declaration, Ex. D to Response, Docket Entry No. 24-3. 4~laintif s f ' Original Collective ("Complaint"), Docket Entry No. 1. Action Complaint 7~otion for Summary Judgment, Docket Entry No. 18, pp. 7-9. engaged in commerce.8 Funes therefore argues that he is entitled to judgment as a matter of law. 2012, arguing that fact Romero responded on November 13, issues exist as to whether Funes constitutes an enterprise engaged in commerce.g Funes replied on November 27, 2012.'O 11. Summarv Judument Standard Rule 56 of the Federal Rules of Civil Procedure mandates summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a). A party moving for summary judgment "bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Revna, 401 F.3d 347, 349 (5th Cir. 2005). Where, as here, the nonmoving party bears the burden of proof at trial, the movant may satisfy its burden by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving partyfs case." 2548, 2554 (1986). Celotex Corp. v. Catrett, 106 S. Ct. Rule 56 does not require the moving party to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). '~esponse, Docket Entry No. 24, ¶¶ 6-8. ''~efendants' Reply to Plaintiff's Response to Motion for Summary Judgment ("Reply"), Docket Entry No. 27. Once the movant has carried this burden, the nonmovant must show that specific facts exist over which there is a genuine issue for trial. Revna, 401 F.3d at 349 (citing Celotex, 106 S. Ct. at 2553-54). The nonmovant may not rest upon mere allegations in the pleadings to make such a showing. Revna, 401 F.3d at 350. To create a genuine fact issue, more than some "metaphysical doubt as to the material facts" is required. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). The parties may support the existence or nonexistence of a genuine fact issue by either (1) citing to particular parts of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, and interrogatory answers, or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56 (c)(1)(A) (B). - In reviewing this evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbins Prods., Inc., 120 S. Ct. 2097, 2110 (2000). But when a party chooses not to respond to part of a summary judgment motion, the court may accept as undisputed the facts the movant provides in support of its motion. 1988). Everslev v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. A. Overtime Provisions The FLSAfs overtime provisions protect employees who fall under either of two types of coverage: (1) "individual coverage," which covers employees "engaged in commerce1' or in the production of goods for commerce," or (2) "enterprise coverage," which covers employees who are "employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 207(a)(l); see - Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992) ("Either individual or enterprise protection. " ) coverage is enough to invoke FLSA . An employee qualifies for "individual coverage" under § 207 only if the employee's work is "'so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity."' Sobrinio, 474 F.3d at 829 (quoting Mitchell v. H.B. Zachrv Co., 80 S. Ct. 739, 747 (1960)); see also McLeod v. Threlkeld, 63 S. Ct. 1248, 1252 ("The test under [the FLSA], to determine whether an employee is engaged in commerce, is not whether the employee's activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of he FLSA defines "commerce" as "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). it."). The employee's work must be "entwined with a continuous stream of interstate commerce." Marshall v. Victoria Transp. Co., Inc., 603 F.2d 1122, 1125 (5th Cir. 1979) . An employee not individually engaged in commerce may still be protected under § 207 if the employer qualifies as an "enterprise engaged in commerce or in the production of goods for commerce." See 29 U.S.C. § 207(a)(l). That term is defined as an enterprise that: (i) has employees engaged in production of goods for commerce, handling, selling, or otherwise materials that have been moved commerce by any person; and commerce or in the or that has employees working on goods or in or produced for (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 . . . . 29 U.S.C. § 203(s)(l)(A). Enterprise coverage, therefore, only applies when the employer has two or more employees engaged in commerce and has gross annual revenue of $500,000 or more. If an employee falls under either type of coverage, the employer is required to pay the employee at one and one-half times the regular rate for all hours worked in excess of forty each week. 29 U.S. C. § 207 (a)(1). at trial that he The plaintiff bears the burden of proving is entitled to protection under the FLSA. Sobrinio, 474 F.3d at 829. B. Motion for Summary Judgment In his Motion for Summary Judgment Funes argues that Romero is not protected by the FLSA's overtime provisions because neither "individual coverage" nor " e n t e r p r i s e coverage" i s applicable.12 I n h i s Response Romero a r g u e s t h a t a g e n u i n e i s s u e o f m a t e r i a l f a c t e x i s t s a s t o w h e t h e r Funes s a t i s f i e s t h e $500,000 t h r e s h o l d a n d , t h e r e f o r e , whether " e n t e r p r i s e coverage" applies.13 Funes p o i n t s o u t i n h i s R e p l y t h a t Romero d o e s n o t o f f e r any e v i d e n c e i n h i s Response t h a t Funes was an e n t e r p r i s e o r t h a t Romero i n d i v i d u a l l y was engaged i n commerce.14 Romero b e a r s t h e b u r d e n o f p r o v i n g t h a t h e i s e n t i t l e d t o p r o t e c t i o n under § 207. See S o b r i n i o , 474 F.3d a t 829. Funes c a n t h e r e f o r e meet h i s b u r d e n by p o i n t i n g o u t t h a t t h e r e i s a n a b s e n c e of evidence t o prove e i t h e r type of coverage. The b u r d e n t h e n s h i f t s t o Romero t o show t h a t s p e c i f i c f a c t s e x i s t o v e r which t h e r e i s a genuine i s s u e f o r t r i a l . Funes m e e t s h i s i n i t i a l b u r d e n t o show t h a t Romero d o e s n o t f a l l under an " i n d i v i d u a l absence of any evidence engaged i n commerce.15 argue t h a t a fact coverage" showing t h e o r y by p o i n t i n g o u t t h e that Romero was individually I n h i s Response Romero d o e s n o t a t t e m p t t o issue exists. Moreover, n e i t h e r t h e Romero ~ e c l a r a t i o n n ~ r t h e Funes ~ e p o s i t i o n , 'b~ t h o f which were a t t a c h e d lo o 1 2 ~ o t i o n o r Summary Judgment, Docket E n t r y No. 1 8 , p p . 7 - 9 . f 1 3 ~ e s p o n s e ,Docket E n t r y No. 24, ¶¶ 6-8. 14~eply, Docket E n t r y No. 27, p p . 3-4. 15Motion f o r Summary Judgment, Docket E n t r y No. 1 8 , p . 7 . 1 6 ~ o m e r o e c l a r a t i o n , Ex. D t o Response, Docket E n t r y No. 24-3. D 1 7 ~ u n eDeposition, s Docket E n t r y No. 2 5 . to Romero's Response and describe Romero's employment as a security guard, provides any evidence that Romero was engaged in commerce while working for Funes. Drawing all reasonable inferences in favor of Romero, there is no evidence to show that Romero's work as a security guard "directly and vitally related to the functioning of an instrumentality or facility of interstate commerce." Sobrinio, See The court therefore concludes that Romero was not protected under an "individual coverage" theory. Funes also meets his initial burden to show that Romero does not fall under an "enterprise coverage" theory. Funes points out that Romero cannot satisfy an essential element of his claim because there is no evidence that two or more of Funes' employees are engaged in commerce or in the production of goods for commerce. Funes also provides evidence that none of his employees handles goods or materials that are moved in interstate commerce, and that he has never had gross annual revenue equal to or greater than $500,000.~~Romero disputes whether Funes' gross annual revenue exceeds $500,000,19 but does not offer any evidence to show that Funes had two or more employees engaged in commerce.20 To take advantage of "enterprise coverage" a plaintiff must prove both the " ~ u n e s Declaration, Ex. 1 to Motion for Summary Judgment, Docket Entry No. 18-1. Ig~esponse, Docket Entry No. 24, ¶¶ 6-8. 20~omero'sallegation in the Complaint that "Funes was at all relevant times an enterprise engaged in commerce or in the production of goods for commerce," see Complaint, Docket Entry No. 1, ¶ 2, is insufficient to survive summary judgment. See Revna, 401 F.3d at 350. revenue element and the "engaged in commerce" element. U.S.C. § 203 (s)(1)(A). 29 Regardless of whether a fact issue exists as to Funes' gross annual revenue, there is no evidence to show that Funes had "employees engaged in commerce or in the production of goods for commerce," or "employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person." 29 U. S.C. § 203 (s)(1)(A)(i). The court therefore concludes that Romero does not fall under "enterprise coverage." IV. Conclusion and Order The court concludes that Funes has met his burden to show that there is an absence of evidence to support Romero's case. has offered no evidence that he was Romero individually engaged in commerce or that Funes had employees engaged in commerce. The court therefore concludes that Romero does not fall under either "individual coverage" or "enterprise coverage." to judgment as a matter of law. Funes is entitled The Motion for Summary Judgment (Docket Entry No. 18) is therefore GRANTED. Because the court has granted Defendant's Motion for Summary Judgment, Romerors Opposed Motion for Conditional Class Certification and Notice (Docket Entry No. 11) is DENIED. SIGNED at Houston, Texas, on UNITED STATES DISTRICT JUDGE
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