United States District Court, W.D. Michigan, Southern Division
SCOTT BURMAN and KEVIN MULDER, for themselves individually and for those similarly situated, Plaintiffs,
EVERKEPT, INC. a/k/a Everkept Disposal, Defendant.
JANET T. NEFF, Judge
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" (First Amended Complaint (FAC),
Dkt 21 at PageID.92).
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." 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).
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.
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).
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.
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.
Facts Relevant to Everkept's Business Operations
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.
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
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.
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.
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.
currently operates approximately 30-32 collection vehicles
out of its Jenison facility, and runs 19-20 different
collection routes daily.
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.
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
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
Facts Relevant to Products Used by Everkept in its
discovery, Everkept identified products used in the course of
its trash, yard waste, and recycling collection business.
These products include the following:
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.
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). ...
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).
collection vehicles use NAPA Commercial batteries. The
batteries are distributed by NAPA from Maryland. ...