[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12903 ELEVENTH CIRCUIT
December 18, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-22298-CV-PCH
NELSON SANDOVAL,
and all others similarly situated under 29 USC 216(B)
RICARDO TURICIOS,
Plaintiffs-Appellants,
versus
FLORIDA PARADISE LAWN MAINTENANCE, INC.,
LUIS VIGOA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 18, 2008)
Before ANDERSON, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Nelson Sandoval and Ricardo Turicios (“Appellants”) appeal the district
court’s grant of summary judgment in favor of Florida Paradise Lawn
Maintenance, Inc, Luis Vigoa, Sr., and Florida Paradise Landscaping, Inc.
(“Appellees”), dismissing Appellants’ claims for uncompensated overtime wages
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Appellants
contend that the district court erred in determining that Appellees were not
required to pay overtime compensation under the FLSA’s “enterprise coverage”
based on the district court’s determination that Appellants failed to present any
evidence that Appellees were an “[e]nterprise engaged in commerce or in the
production of goods for commerce” under the meaning of 29 U.S.C. §
203(s)(1)(A)(i). Appellants argue that Appellees were engaged in interstate
commerce under the meaning of the FLSA because Appellees were engaged in the
business of construction and grossed over $500,000 annually. We affirm.
I. BACKGROUND
Luis Vigoa, Sr. is the president and owner of the two corporate Appellees.
The corporations perform grading services involving leveling of the ground and
planting trees for their customers. Appellants performed grading services for
Appellees. Appellants alleged that they worked for Appellees for more than three
years and consistently worked in excess of forty hours weekly without receiving
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any overtime compensation as is required for covered enterprises under the FLSA.
Appellants argue that Appellees are required to pay overtime compensation
because Appellees qualify for “enterprise coverage” under the FLSA because the
corporations are involved in interstate commerce and gross over $500,000
annually as required by the statute. See 29 U.S.C. 203(s)(1)(A)(ii). The district
court determined that there were questions of fact regarding the $500,000
threshold and whether the two corporate defendants could be considered a single
enterprise; however, the court granted summary judgment based on its
determination that Appellants presented no evidence that Appellees were involved
in interstate commerce under the meaning of 29 U.S.C. § 203(s)(1)(A)(i).
II. STANDARD OF REVIEW
This Court reviews a district court’s grant of summary judgment de novo.
Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary
judgment is appropriate when the evidence, viewed in the light most favorable to
the nonmoving party, presents no genuine issue of fact and compels judgment as a
matter of law. Fed. R. Civ. P. 56(c); Holloman, 443 F.3d at 836. In order to
contest a properly made motion for summary judgment, the nonmoving party may
not merely rely on its pleading; rather, the nonmoving party must respond by
presenting affidavits or other evidence that sets out specific facts showing a
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genuine issue of material fact. Fed. R. Civ. P. 56(e); Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004). “A mere scintilla of evidence in support
of the nonmoving party will not suffice to overcome a motion for summary
judgment.” Young, 358 F.3d at 860.
III. DISCUSSION
Appellants contend that Appellees constitute an enterprise engaged in
commerce under the FLSA, requiring them to pay overtime compensation to any
employees that work more than forty hours in a workweek under 29 U.S.C. §
207(a)(1). The definitions section of the FLSA states:
“Enterprise engaged in commerce or in the production of goods for
commerce” means an enterprise that–
(A)(i) 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
(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)(1)(A)(i)-(ii).1 Under the FLSA, the definition of “goods” “does
not include goods after their delivery into the actual physical possession of the
1
We need not address whether Appellees’ annual gross volume of sales exceeded
$500,000 because we are affirming the summary judgment due to Appellants’ failure to establish
a genuine issue of material fact as to whether Appellees had employees engaged in interstate
commerce.
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ultimate consumer thereof other than a producer, manufacturer, or processor
thereof.” Id. § 203(i).
Appellees attached affidavits to their motion for summary judgment stating
that all of their customers were located in Florida, all of the grading of ground and
planting of trees was done in Florida, all of the trees were purchased in Florida, and
all of the trees were grown in Florida. In Appellants’ response to the summary
judgment motion, Appellants did not present any evidence disputing these
statements.2
Instead of producing evidence of interstate transactions, Appellants argued
that the district court should presume that Appellees were engaged in interstate
commerce because Appellees were involved with construction work and grossed
over $500,000 annually. Appellants point to the fact that an earlier version of 29
U.S.C. § 203(s)(4) indicated that businesses involved in construction or
reconstruction automatically triggered FLSA jurisdiction. See Ferguson v.
Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, 554 (6th Cir. 1986)
(holding that the employer was subject to FLSA jurisdiction because it was
2
Appellants did ask the district court to allow Appellants to complete discovery
before ruling on the summary judgment motion. The district court determined that Appellants
had been given sufficient time to produce evidence raising a genuine issue of material fact on this
issue. Appellants do not raise any argument to this Court that the district court abused its
discretion by failing to allow Appellants to complete discovery. Therefore, Appellants have
waived this argument.
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involved in construction or reconstruction under the meaning of the FLSA).
However, Appellants acknowledge that the “construction or reconstruction”
language is no longer in the statute and that Appellants can no longer simply argue
that Appellees were involved in construction to trigger FLSA jurisdiction.
Despite the acknowledgment that the construction language is no longer in
the statute, Appellants argue that the prior inclusion on construction employers
under FLSA jurisdiction should be persuasive in light of the $500,000 annual
income threshold for triggering jurisdiction. Appellants point to dicta in one
district court case stating: “Although the definition [of enterprise coverage] has two
requirements (the interstate commerce requirement and the annual gross value
requirement), virtually every business meeting the annual gross value requirement
is covered.” Daniel v. Pizza Zone Italian Grill & Sports Bar, Inc., No. 8:07-cv-
2359-T-23TGW, 2008 WL 793660, at *1 n.6 (M.D. Fla. Mar. 24, 2008). Even
assuming arguendo that it is true that the vast majority of businesses grossing over
$500,000 are involved in interstate commerce, this does not mean that the district
court should presume that Appellees are engaged in interstate commerce without
any evidence presented by Appellants.
Furthermore, it is clear from the language of the statute that, for enterprise
coverage under the FLSA to apply, the enterprise must be engaged in commerce
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under the statute and must gross over $500,000 annually. See 29 U.S.C. §
203(s)(1)(A)(i)-(ii). Both prongs must be met. Several cases have concluded that
the FLSA does not apply to employers because the interstate commerce prong has
not been met. In Thorne v. All Restoration Servs., Inc., this Court held that
Thorne’s argument that he was engaged in interstate commerce failed because he
did not present sufficient evidence of interstate transactions to overcome a Rule 50
motion for dismissal. 448 F.3d 1265, 1267 (11th Cir. 2006). Thorne presented
bills for purchases made at a local Home Depot and stated that tools he purchased
may have crossed interstate lines; however, this was insufficient to implicate
interstate commerce under the FLSA. Id. “When goods reach the customer for
whom they were intended, the interstate journey ends and employees engaged in
any further intrastate movement of the goods are not covered under the [FLSA].”
Id.; see also Scott v. K.W. Max Invs., Inc., 256 F. App’x 244, 249 (11th Cir. 2007)
(unpublished opinion) (holding that production of employer’s tax returns was
insufficient to create a genuine issue of material fact regarding the interstate
commerce prong); Polycarpe v. E & S Landscaping Serv., Inc., 572 F. Supp. 2d
1318, 1321 (S.D. Fla. 2008) (noting that the defendant provided an affidavit stating
that all of the trees, sod, and other materials were produced in Florida, and holding
that the fact that the defendant used credit cards, banks, and gasoline was not
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sufficient to overcome the overwhelming evidence that defendant’s landscaping
business was of a local nature).
Appellants circumstances are similar to the plaintiffs in Thorne, Scott, and
Polycarpe. Appellants did not present sufficient evidence to establish a genuine
issue of material fact regarding the first prong of enterprise coverage under 29
U.S.C. § 203(s)(1)(A)(i). Appellants did not produce any evidence to dispute
Appellees’ affidavit stating that all of the products used in their businesses were
purchased and produced locally. Appellees did not provide any evidence that any
work was done outside of Florida or that any customers were located outside of
Florida. Although Appellants were able to establish a genuine issue of material
regarding Appellees’ annual gross revenue, this alone was insufficient to avoid
summary judgment. Since Appellants failed to present evidence establishing a
genuine issue of material fact regarding the interstate commerce prong of enterprise
coverage, we must affirm the district court’s grant of summary judgment.
IV. CONCLUSION
Based on the foregoing, we affirm the district court’s grant of summary
judgment in favor of the Appellees.
AFFIRMED.3
3
Appellants’ request for oral argument is denied.
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