[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2007
No. 07-10649 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00683-CV-ORL-18-JGG
JEFFREY SCOTT,
Plaintiff-Counter-
Defendant-Appellant,
versus
K. W. MAX INVESTMENTS, INCORPORATED,
WILLIAM DAVIDSON,
MICHAELINE DAVIDSON,
Defendants-Counter-
Claimants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 2, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Plaintiff-appellant, Jeffrey Scott, appeals the district court’s grant of
summary judgment against him as to his claim against defendants-appellants K.W.
Max Investments, Inc. (“K.W. Max”), William L. Davidson and Michaelina
Davidson, for unpaid overtime compensation on the ground that the court erred in
finding his employment was not covered by the Fair Labor Standards Act (FLSA)
of 1938, as amended, 29 U.S.C. § 201 et seq. He also challenges the court’s
imposition of sanctions against him for failure to attend mediation as per the
court’s scheduling order. We affirm summary judgment and find we are without
jurisdiction to review the issue of sanctions.
I. BACKGROUND
Scott was employed as a manual laborer by K.W. Max from June 2003 until
January 2004, and again from May 2004 until June 2004. K.W. Max is a Florida
corporation of which the business purpose is to buy and re-sell residential homes
and property located in Florida. The Davidsons own K.W. Max. William L.
Davidson is its President and Michaelina Davidson is its Secretary. The Davidsons
have presented affidavits indicating that K.W. Max’s annual gross volume of sales
or business done has been less than $500,000 for each year it has existed.
During his periods of employment, Scott worked at two sites in Grant,
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Florida. At one site, a house on U.S. Highway 1, he performed remodeling work
and yard work. At the other site, a lot on an island in Grant, Scott worked on the
construction of a house. Specifically, much of his work there involved loading
supplies and materials onto a barge for transportation to the island. Scott
acknowledges that he never left the state of Florida to carry out any of his duties
and that he never used the telephone, internet or mail in furtherance of his duties.
Scott asserts that he regularly worked more than forty hours per week, but
was not compensated at the overtime rate for those hours in excess of forty.
Accordingly, Scott initiated this FLSA action against K.W. Max and the Davidsons
alleging that he was an employee engaged in commerce, or that K.W. Max is an
enterprise engaged in commerce or in the production of goods for commerce for
purposes of coverage under the act. In his response to the Davidsons and K.W.
Max’s motion for summary judgment disputing coverage under the FLSA, Scott
requested that he be allowed to amend his Complaint to allege that K.W. Max and
the Davidsons were joint employers under the FLSA. In considering the motion
for summary judgment, the district court also considered the arguments related to
Scott’s proposed amendment to his complaint and those made in the Davidsons
and K.W. Max’s response thereto. The district court found that Scott had failed to
raise a genuine issue of material fact as to whether his employment was covered by
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the FLSA and granted summary judgment in favor of K.W. Max and the
Davidsons.
Finally, the district court’s scheduling order required the parties to attend
any mediation in person. Scott failed personally to attend a scheduled mediation,
appearing instead by telephone. As a result, the district court sanctioned Scott,
awarding K.W. Max and the Davidsons their reasonable expenses and attorney’s
and mediator’s fees incurred in connection with that mediation.
II. DISCUSSION
A. Summary Judgment
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards as the district court, and construing the facts and
drawing all reasonable inferences therefrom in the light most favorable to the
non-moving party.” Centurion Air Cargo, Inc. v. United Parcel Service Co., 420
F.3d 1146, 1149 (11th Cir. 2005). We will affirm a district court’s grant of
summary judgment to a moving party when “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 movant
‘bears the initial responsibility of informing the district court of the basis for its
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motion’ by identifying those portions of the record that demonstrate the absence of
genuine issues of material fact.” Baldwin County, Ala. v. Purcell Corp., 971 F.2d
1558, 1563 (11th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2553 (1986). Thereafter, the burden shifts to the nonmovant to
produce affidavits or other relevant and admissible evidence sufficient to rebut this
showing. Id.; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. If such evidence “is
merely colorable, or is not significantly probative,” summary judgment is
appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511 (1986) (citations omitted). Finally, summary judgment is mandated
against a party failing to “make a showing sufficient to establish” an essential
element of its case. Celotex, 477 U.S. at 322.
The FLSA requires an employer to pay an employee overtime compensation
for any hours worked in excess of forty in a given workweek, if that employee “is
engaged in commerce or in the production of goods for commerce [‘individual
coverage’], or is employed in an enterprise engaged in commerce or in the
production of goods for commerce [‘enterprise coverage’].” 29 U.S.C. § 207(a).
Accordingly, an employee bringing a claim for unpaid overtime compensation
must establish either individual or enterprise coverage. See, e.g., Thorne v. All
Restoration Servs., 448 F.3d 1264, 1265-66 (11th Cir. 2006). On appeal, Scott
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argues only as to enterprise coverage.
An employee may show his employer is subject to the FLSA by way of
enterprise coverage if he demonstrates that the employer is an enterprise that (1)
“has employees engaged in commerce or in the production of goods for commerce,
or that has employees handling, selling, or otherwise working on goods or
materials that have been moved in or produced for commerce by any person” and
has an (2) “annual gross volume of sales made or business done [of] not less than
$500,000.” 29 U.S.C. § 203(s)(1)(A).
Under the statute, an “[e]nterprise” is “the related activities performed
(either through unified operation or common control) by any person or persons for
a common business purpose.” 29 U.S.C. § 203(r)(1). “‘Person’ means an
individual, partnership, association, corporation, business trust, legal
representative, or any organized group of persons.” 29 U.S.C. § 203(a).
“‘Commerce’ means 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). “‘Goods’ means goods . . ., wares, products,
commodities, merchandise, or articles or subjects of commerce of any character, or
any part or ingredient thereof, but does not include goods after their delivery into
the actual physical possession of the ultimate consumer thereof other than a
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producer, manufacturer, or processor thereof.” 29 U.S.C. § 203(i).
1. Interstate commerce
To qualify as “engaged in commerce” under the FLSA, an employee must
“directly participat[e] in the actual movement of persons or things in interstate
commerce by (i) working for an instrumentality of interstate commerce . . . or (ii)
by regularly using the instrumentalities of interstate commerce in his work.”
Thorne, 448 F.3d at 1266. An employee may also qualify as “engaged in . . . the
production of goods for commerce” if his “work is closely related and directly
essential to the production of goods for commerce. Id. at 1268.
Scott first alleges that his own employment fulfilled this first prong of
enterprise coverage. Rather than supporting this allegation with explanatory
references to specific evidence, he generally cites the affidavits of the Davidsons
and Rick Krack, their accountant. These affidavits confirm that the materials with
which Scott worked, over the course of his employment, came primarily from a
Home Depot store which was also located in Florida, and that none of the materials
purchased were purchased for resale by K.W. Max. Scott offers no specific
argument or any evidence that any of the goods purchased from Home Depot had
been moved in or produced for interstate commerce. In fact, there is some
evidence that at least one of them was not to be sold but to become the Davidsons’
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secondary residence. See R1-33 at 20.
Scott also argues that because K.W. Max’s business purpose was to buy and
re-sell residential homes and property located in Florida, the homes at which he
performed work were to be sold. There is no evidence in the record, however, that
these homes were to move in interstate commerce.
Although Scott does not mention it specifically, the single instance of
lumber obtained by William Davidson from the demolition of a friend’s house in
Louisiana would constitute goods moved in interstate commerce. However, the
regulations interpreting the FLSA clarify that
an enterprise . . . will be considered to have employees . . . handling,
selling, or otherwise working on goods that have been moved in or
produced for commerce by any person, if during the annual period
which it uses in calculating its annual sales for purposes of the other
conditions of these sections, it regularly and recurrently has at least
two or more employees engaged in such activities[,]” . . . [but i]t is
plain that an enterprise that has employees engaged in such activities
only in isolated or sporadic occasions, will not meet this condition.
29 C.F.R. § 799.238 (emphasis added). The purchase of lumber from Louisiana
constitutes just such an isolated incident.
Finally, Scott attempts to satisfy the first prong of enterprise coverage by
asserting that the Davidsons individually are his joint employers along with K.W.
Max and that “their income is derived from both intrastate and interstate sources;
therefore, the D[avidsons] engage in interstate commerce and are subject to the
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FLSA.” Appellant’s Br. at 14. However, even if we were to accept his argument
that the Davidsons were his joint employers, he fails to elaborate as to what income
the Davidsons derive from interstate commerce, or to point to any evidence in
support of his assertion. Before the district court, Scott pointed to the Davidsons’
personal tax returns and alleged that they derived investment income from
interstate sources. Such an allegation, standing alone, as was noted by the district
court, is insufficient to show interstate commerce for the purposes of enterprise
coverage.
We find that Scott’s allegation and the tax returns are insufficient to raise a
genuine issue of material fact as to whether the enterprise by which Scott was
employed (whether it be K.W. Max alone, or jointly with the Davidsons) of which
the business purpose was to buy and re-sell residential homes and property in
Florida, had any employee “engaged in commerce or in the production of goods
for commerce, or [any] employee[ ] handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce.” 29 U.S.C.
§ 203(s)(1)(A). Accordingly, we find Scott has failed to raise a genuine issue of
material fact as to the first prong of enterprise coverage.
2. Annual Gross Dollar Amount
Even if the tax returns had constituted sufficient evidence of participation in
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interstate commerce to meet the first prong of enterprise coverage, Scott has failed
also to produce sufficient evidence to raise a genuine issue of material fact as to the
“annual gross volume of sales made or business done” by his employer(s). 29
U.S.C. § 203(s)(1)(A).
K.W. Max and the Davidsons have produced affidavits stating that K.W.
Max’s annual gross volume of sales or business done is less than $500,000. In
response, Scott offers a complex recitation of figures and calculations related to
alleged transfers of property between K.W. Max and the Davidsons. However,
even though it is clear from deposition testimony that Scott had received the
income tax returns for 2003 and 2004 for K.W. Max and the Davidsons,1 Scott has
pointed to no evidence in the record that any of these transfers actually occurred, or
if they did occur, that they occurred during the years of Scott’s employment, or of
any particular dollar amounts involved.2
The only evidence of any transaction is Rick Krack’s deposition testimony
regarding the sale by K.W. Max of one property in 2003 or 2004, for $485,000.
1
Although Scott discusses K.W. Max tax returns, they are nowhere to be found in the
record.
2
Scott emphasizes “monies and property that passed between the DAVIDSONS and
MAX,” Appellant’s Br. at 12, but deposition testimony makes clear that any such transfers were
made as shareholder contributions with corresponding debts placed in KW Max’s books. Thus,
they were entirely internal to the enterprise and would not constitute sales made or business done
by the enterprise. See 29 C.F.R. 779.259(a).
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The transaction was an installment sale under which K.W. Max received monthly
payments that continued until the full amount was finally paid off at end of 2005 or
early 2006. R3-48-4 at 191-93. Scott has offered no evidence of what portion of
the sales price might have been received by K.W. Max during either year of his
employment.
Scott also argues that, because the deeds for all properties transferred to
K.W. Max by the Davidsons remain in the Davidsons’ names, the single
documented sale for $485,000 could be added to the Davidsons’ “income” to reach
the required $500,000 in sales made or business done. Appellant’s Br. at 13. Even
if it were appropriate to combine such activities, not only is there no evidence of
the portion of the $485,000 sales price received in either 2003 or 2004, the
Davidsons’ “income,” as recorded on their tax returns, is far below $500,000 for
each 2003 and 2004. R3-48-2 at 1; 48-3 at 1. Further, Scott has made no argument
as to how any of the income listed on those tax returns qualifies as “sales made or
business done” under the statute.
Because we agree with the district court that “[t]he fortuitous circumstance
of the amount of sales or exchanges of stocks and bonds for reinvestment in a
particular year would be little, if any, indication of the size of the business,” we
will not consider such amounts and are left with the Davidsons’ investment
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income. See R4-60 at 8 n.3 (quoting Wirtz v. Columbian Mut. Life Ins., 246 F.
Supp. 198, 204 (D.C. Tenn. 1965)). There was no capital gain, and thus no
“income” on the Davidsons’ sales of stocks or bonds in either 2003 or 2004. See
R3-48-2 at Schedule D; 48-3 at Schedule D. Further, their investment income
(from interest and dividends) amounted to around $74,000 in 2003 and about
$52,000 in 2004. R3-48-2 at Schedule B; 48-2 at Schedule B. Neither even
approaches the required $500,000.
Accordingly, we find that Scott has failed to raise a genuine issue of material
fact as to whether K.W. Max and/or the Davidsons (should they be joint
employers) had gross sales or business done which met or exceeded $500,000 in
any year during which Scott was employed.
B. Sanctions
Generally, we have jurisdiction to review only those “judgments, orders or
portions thereof which are specified in an appellant's notice of appeal.” Osterneck
v. E.T. Barwick Indus. 825 F.2d 1521, 1528 (11th Cir. 1987); Fed. R. App. P. 3(c)
(requiring that a notice of appeal “designate the judgment, order, or part thereof
appealed.”). Further, “[a]lthough we generally construe a notice of appeal
liberally, we will not expand it to include judgments and orders not specified
unless the overriding intent to appeal these orders is readily apparent on the face of
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the notice. Osterneck, 825 F.2d at 1528. Occasionally, when an unnoticed issue is
“inextricably intertwined” with noticed issues, we will make an exception, but only
when the adverse party will not be prejudiced. See Hill v. BellSouth Telecomms.,
364 F.3d 1308, 1313 (11th Cir. 2004).
Here, Scott specifically notices his intent to appeal the final judgment
against him entered on 6 February 2007. R4 62-63. He makes no mention at all of
the sanctions order which was entered on 8 January 2007. Further, the issue of
sanctions imposed upon Scott for failure to attend a mediation as ordered by the
court is completely unrelated to the substantive case, and thus fails to fall under
any exception to the rule. Accordingly, due to Scott’s failure to comply with Rule
3(c), we lack jurisdiction to review the issue of sanctions.
III. CONCLUSION
Scott appeals the district court’s grant of summary judgment against him as
to his FLSA claim for unpaid overtime compensation. He also challenges the
district court’s order sanctioning him for his failure to attend mediation in person.
Because we find that Scott failed to introduce sufficient evidence to raise a genuine
issue of material fact as to whether his employment with K.W. Max was covered
by Section 7 of the FLSA – any evidence that he was engaged in commerce or in
the production of goods for commerce, or that K.W. Max or the Davidsons was an
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enterprise engaged in commerce or in the production of goods for commerce, or
any evidence that K.W. Max and/or the Davidsons had gross sales made or
business done of $500,000 or more – we AFFIRM the district court’s grant of
summary judgment. Because Scott failed properly to appeal it, we lack jurisdiction
to review the district court’s sanctions order. Accordingly, we DISMISS that
portion of Scott’s appeal.
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