Barrett v. Professional Towing and Recovery LLC

• Court: District Court, D. Arizona
• Decided: May 30, 2024
• Docket: 2:23-cv-02025
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kevin Barrett, No. CV-23-02025-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 Professional Towing and Recovery LLC,

13 Defendant. 14 15 Plaintiff Kevin Barrett filed this action on behalf of himself and others similarly 16 situated claiming Defendant Professional Towing and Recovery LLC, among other 17 offenses, failed to properly pay overtime wages under the Fair Labor Standards Act. (Doc. 18 1, “Compl.”). Defendant seeks dismissal of Plaintiff’s FLSA claim (Count I) (Doc. 9, 19 “Mot.”), arguing it is exempt from the relevant sections of the FLSA under the Motor 20 Carrier Exemption. But the Complaint contains sufficient allegations to state a claim under 21 the FLSA. Defendant’s motion will be denied. 22 I. BACKGROUND 23 Plaintiff alleges the following relevant facts in the Complaint. Defendant, properly 24 seen as an “employer” under the FLSA, hires tow truck drivers like Plaintiff to provide 25 towing and roadside assistance services. Compl. ¶ 23. Plaintiff was employed by 26 Defendant as a tow truck driver in Arizona from October 2022 to July 2023, first at an 27 hourly rate of $15 per hour then on a commission basis at 23% of total generated revenue. 28 Id. at ¶ 28. Plaintiff alleges he regularly worked more than forty hours per week and 1 Defendant did not pay Plaintiff any overtime wages. Id. at ¶¶ 56–63. 2 II. MOTION TO DISMISS 3 A complaint must set forth a “short and plain statement of the claim showing that 4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, 5 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 6 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted)). If “the 8 well-pleaded facts do not permit the court to infer more than the mere possibility of 9 misconduct, the complaint” has not adequately shown the pleader is entitled to relief. Id. 10 at 679. Although federal courts ruling on a motion to dismiss “must take all of the factual 11 allegations in the complaint as true,” they “are not bound to accept as true a legal 12 conclusion couched as a factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555) 13 (internal quotations omitted). 14 Defendant moves to dismiss Count I of the Complaint, which alleges Defendant 15 failed to properly pay overtime wages under the FLSA. Defendant’s argument centers 16 around its purported exemption from the FLSA’s overtime provisions as a motor carrier 17 under 29 U.S.C. § 213(b)(1)—the Motor Carrier Exemption. Under that statute, the 18 overtime provisions of FLSA Section 207 do not apply with respect to “any employee with 19 respect to whom the Secretary of Transportation has power to establish qualifications and 20 maximum hours of service pursuant to the provisions of section 31502 of Title 49.” 29 21 U.S.C. § 213(b)(1). And 49 U.S.C. § 31502 grants the Secretary of Transportation 22 authority to regulate employees of “motor carriers”—defined by 49 U.S.C. § 13102 as “a 23 person providing motor vehicle transportation for compensation”—if the employee’s work 24 activities affect the “safety of operation” of motor vehicles in interstate commerce. See 25 McClurg v. Dallas Jones Enterprises Inc., 542 F. Supp. 3d 595, 598 (W.D. Ky. 2021). 26 “Ordinarily, employees of a motor carrier that engages wholly in intrastate commerce are 27 subject to . . . the overtime and maximum hours provisions of the FLSA.” Johnson v. Hix 28 Wrecker Serv., Inc., 651 F.3d 658, 660 (7th Cir. 2011). 1 Defendant’s motion argues its status as a motor carrier qualifies it for the FLSA’s 2 Motor Carrier Exemption. Mot. at 3. Plaintiff characterizes this argument as a 3 misapplication of the defense and based on incorrect analysis (Doc. 11 at 2–3, “Resp.”). 4 Plaintiff asserts Defendant has the burden to prove its affirmative defense, which it has 5 failed to do because the Motion’s argument regarding the exemption focuses solely on 6 Defendant’s status as a motor carrier, ignoring the interstate commerce element of the 7 Motor Carrier Exemption. Resp. at 3. Plaintiff argues the allegations in the Complaint, 8 taken as true, along with admissions in Defendant’s answer (Doc. 10) foreclose application 9 of the Motor Carrier Exemption at this stage. Resp. at 4. Plaintiff alleges his primary job 10 functions took place “within the Phoenix metropolitan area,” and that he “never went 11 outside of the state of Arizona in performing his job duties.” Compl. at ¶ 26. Further, 12 Defendant admitted these allegations in its answer (Doc. 10 at ¶ 26). 13 Defendant’s reply argues Plaintiff’s allegations Defendant was engaged in interstate 14 commerce and Plaintiff was engaged in commerce and affected the safety operation of 15 motor vehicles negate Plaintiff’s argument that the Motor Carrier Exemption does not 16 apply (Doc. 12 at 3, “Reply”). But this relies on interpreting “commerce” as used in 17 paragraph 15 of the Complaint as “interstate commerce.” At the motion to dismiss stage, 18 the Court will not make this leap. Plaintiff’s Complaint sets forth a prima facie case of 19 failure to pay overtime wages under the FLSA and alleges Plaintiff operated solely within 20 Arizona. Taken as true, these allegations are sufficient to state a claim. 21 While Defendant may ultimately be able to show its affirmative defense under the 22 Motor Carrier Act applies in this case, this issue will be decided on the merits after 23 discovery and further factual development. See, e.g., McLeland v. 1845 Oil Field Servs., 24 97 F. Supp. 3d 855, 860 (W.D. Tex. 2019) (“Defendant's FMCA argument is an affirmative 25 defense that requires discovery and more factual development before being decided on the 26 merits.”); Sanchez v. Truse Trucking, Inc., 74 F. Supp. 3d 716, 726–27 (M.D. N.C. 2014) 27 (“Defendant requests that this Court determine, at the motion to dismiss stage, . . . should 28 find that Plaintiffs, by their own allegations, have conclusively shown that their work 1 || activities fall within the MCA exemption. Although a close call, the Court finds that such adetermination at this stage of the proceedings, based on the allegations in the Complaint, 3 || would be premature.”). Thus, Defendant’s motion will be denied. 4 Accordingly, 5 IT IS ORDERED Defendant’s motion to dismiss (Doc. 9) is DENIED. 6 Dated this 30th day of May, 2024. 7 fo -

Honorable Roslyn ©. Silver 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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