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Burman v. Everkept, Inc.

United States District Court, W.D. Michigan, Southern Division

March 27, 2017

SCOTT BURMAN and KEVIN MULDER, for themselves individually and for those similarly situated, Plaintiffs,
EVERKEPT, INC. a/k/a Everkept Disposal, Defendant.


          HON. JANET T. NEFF, Judge

         Plaintiffs, current and former employees of Defendant Everkept, Inc., filed this proposed collective/class action to recover for injury and damages stemming from alleged violations of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et. seq., and/or the Michigan Workforce Opportunity Wage Act (WOWA), Mich. Comp. Laws § 480.411 et. seq. Plaintiffs claim that Defendant denied them overtime and straight-time compensation to which they were entitled under the FLSA/WOWA, as a result of Defendant's improper pay calculations and/or its practices or policies of failing to pay employees for "all work activities suffered or permitted"[1] (First Amended Complaint (FAC), Dkt 21 at PageID.92).

         The threshold issue before the Court is whether Plaintiffs' employment with Defendant is covered by the FLSA, which the parties present as a question of FLSA "jurisdiction."[2] The parties have filed several related motions, which the Court concurrently resolves in this Opinion and Order. After full briefing, the Court finds that oral argument is unnecessary to resolve the matters presented. See WD. Mich. LCivR 7.2(d).

         For the reasons that follow, the Court denies Defendant's Motion for Judgment on the Pleadings or for Summary Judgment as to Plaintiffs' FLSA Claims (Dkts 55, 56). The Court grants Plaintiffs' cross-motion for summary judgment (Dkt 59), and denies Plaintiffs' Motion for Leave to File a Second Amended Complaint as moot (Dkt 62). The Court concludes that Defendant's motion is properly denied because Plaintiffs have sufficiently pleaded their claim under the FLSA, and on the record presented, Defendant's employment of Plaintiffs is subj ect to the FLSA. Because the Court decides the issue of FLSA coverage as a matter of law on undisputed facts, Plaintiffs' motion for summary judgment (partial summary judgment) is appropriately granted.

         I. Facts

         Pursuant to this Court's dispositive motion procedures, the parties have stipulated to a Joint Statement of Material Facts (JSMF) for purposes of the motions (Dkt 57). The parties JSMF is well-prepared and comprehensive, and the Court relies on the stipulated facts as cited herein. The parties' provide the following stipulated summary of the case, and facts concerning Defendant's business operations and products used in its business (id. at PagelD.447-454) (record citation and footnotes omitted).


         The named Plaintiffs and proposed class members are current and former collection-driver employees of Defendant, Everkept, Inc. (Everkept). Everkept is a Michigan corporation that operates a garbage, recycling, and yard waste collection service in west Michigan.

         Upon agreement by the parties and approval of the Court, the parties engaged in a period of Phase I discovery limited to issues surrounding FLSA jurisdiction. Plaintiffs have alleged that jurisdiction exists under the FLSA in this matter as an enterprise engaged in interstate commerce. Defendant challenges this jurisdictional basis and files the instant Motion for Summary Judgment.

         Material Facts Relevant to Everkept's Business Operations

         Everkept is a corporation registered in the State of Michigan; Everkept is not registered to do business in any other State. Everkept provides trash collection, recycling collection, and yard-waste collection services to residential and commercial customers. Everkept has a gross volume of sales that is greater than $500, 000 annually. Everkept currently employs or has employed during the time periods relevant to this lawsuit approximately 107 employees. Every employee of Everkept has been, and/or continues to be, a resident of the State of Michigan throughout the duration of his or her employment with Everkept. Each member of Everkept's ownership is a Michigan resident.

         Currently, Everkept operates its collection business out of a facility at 2412 Port Sheldon, Jenison, MI. Chad Stoub, one of the founders and co-owners of Everkept, explained the purpose of that facility:

         "We run trash - trash trucks, yard waste trucks, and recycle trucks from that facility into the community, and then back to that facility. And that facility is where they are repaired. In addition to that would be the delivery and maintenance of trash carts, recycle carts, and yard waste carts to those customers. And those trucks are also repaired at that facility.

         So I'd say the - the overarching purpose for that facility is to park and repair the service vehicles." The Jenison facility has been in operation for the entire time relevant to this lawsuit (June 9, 2012-present). Everkept's owner represents that, currently, Everkept employs twelve trash-collection drivers, three recycle-collection drivers, three yard-waste-collection drivers, and four "swing" drivers who drive a route when the regular driver is unavailable.

         During the period relevant to this lawsuit, Everkept also previously operated a trash collection, recycling collection, and yard-waste collection service out of a facility located at 2011 Palmer Dr., Kalamazoo MI. Operations stopped out of the Kalamazoo facility on January 30, 2015. During the time Everkept operated the Kalamazoo facility, Everkept's owner represents that Everkept employed five drivers who operated out of that facility.

         Everkept currently operates approximately 30-32 collection vehicles out of its Jenison facility, and runs 19-20 different collection routes daily.

         Everkept provides (or has provided) trash collection, recycling collection, and yard-waste collection services to customers in the following counties in Michigan: Kent County, Ottawa County, Ionia County, Allegan County, Van Buren County, and Kalamazoo County. Everkept currently provides trash collection, recycling collection, and yard waste collection services to customers in the following locales or "area of service" in those counties: Grand Rapids, Kentwood, Wyoming, Comstock Park, Walker, Jenison, Grandville, Forest Hills, Ada, Cascade, Holland, Hudsonvil[l]e, Byron Center, Cedar Springs, Rockford, Sparta, Belmont, Zeeland, Wayland, Caledonia, Alto, Cutlerville, and other surrounding areas.

         Everkept has never performed trash collection, yard waste collection, or recycling collection services outside the State of Michigan, and Everkept's collection drivers are not required to cross state lines in the performance of their job duties.

         In the performance of its trash collection, recycling collection, and yard waste collection operations, Everkept does not bring trash, recyclables, or yard waste back to its facility for processing or final disposal. Instead, all materials collected in the course of its business are released to landfills or facilities operated by third parties. Each of the facilities to which Everkept dumps the collected trash, recyclables, and yard waste is located in the State of Michigan.

         Material Facts Relevant to Products Used by Everkept in its Business

         During discovery, Everkept identified products used in the course of its trash, yard waste, and recycling collection business. These products include the following:


         Everkept identified approximately 49 vehicles that it owns, which are currently used in its business. The vehicles identified are primarily collection trucks driven by Everkept's employee-drivers and used in its trash, yard-waste, and recycling collection activities. In particular, Mr. Stoub identified approximately 29 vehicles that are "automated side load" collection vehicles owned by Everkept; approximately 3 vehicles that are "front load" collection vehicles owned by Everkept; as well as approximately 1 "rear load" collection vehicle, one potential "box truck, " and two "roll off collection vehicles that are owned by Everkept.

         Everkept provided a list of vehicle-specific VIN numbers for all of the vehicles identified. Using those VIN numbers, the U.S. National Highway Traffic Safety Administration identifies that Everkept's vehicles were manufactured in Missouri, Kentucky, Virginia, Ohio, Indiana, Pennsylvania, Texas, Louisiana, and Ontario (Canada). ...

         Vehicle Components.

         The tires on Everkept collection vehicles used in its collection business are manufactured by Hankook and Michelin. Hankook has its production facilities in Korea, China, Hungary, Indonesia, and Tennessee. Michelin manufacture[s] truck tires in South Carolina and Nova Scotia (Canada).

         Everkept's collection vehicles use NAPA Commercial batteries. The batteries are distributed by NAPA from Maryland. ...

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