United States District Court,

N.D. Ohio.

Michael J. VERDI, et al, Plaintiffs,

v.

DOMINO LOGISTICS CO., et al, Defendants.

 

No. 1:10–CV–1888.

June 16, 2011.

 

Richard T. Bush, Green, Haines, Sgambati, Youngstown, OH, for Plaintiffs.

 

Timothy P. Haffey, Bernard, Haffey & Bohnert, Lyndhurst, OH, for Defendants.

 

OPINION & ORDER [Resolving Doc. Nos. 21, 25, 32 ]

JAMES S. GWIN, District Judge.

In this Fair Labor Standards Act (“FLSA”) case, the Plaintiffs move for summary judgment on their claims that Defendant J. Ross Haffey, the principal of Domino Logistics Co. and the Plaintiffs’ former employer, improperly denied them overtime pay. [Doc. 21.] Defendant Haffey acknowledges that he did not pay the Plaintiffs overtime, but argues instead that they were exempt from overtime under the Motor Carrier Act, 29 U.S.C. § 213(b) (1). [Doc. 29 at 2.]

 

The case is stayed as to Defendant Domino Logistics pending resolution of its Chapter 11 bankruptcy case. [Doc. 19.]

 

For the following reasons, the Court GRANTS the Plaintiffs’ motion for summary judgment.

 

I. Background

The Motor Carrier Act exempts from the overtime provisions of the FLSA employees who (1) work as drivers, driver’s helpers, loaders, or mechanics, and (2) directly affect the safety of operation of motor vehicles in transporting property in interstate commerce. See Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 904 (6th Cir.2002) (citing 49 U.S.C. § 31502(b)(2) ); 29 C.F.R. § 782.2(b)(1)-(2). The facts that follow are relevant to this inquiry.

 

Domino Logistics was a large, Midwestern trucking company with terminals throughout Northeast Ohio. In 2007, Domino was a multimillion-dollar business with hundreds of trucks in its fleet; by 2011, it was bankrupt. [Doc. 21 at 13.] Domino employed Plaintiffs Wade Romanowski, Michael Verdi, and James Yankie in various capacities at its Jefferson, Ohio and Ashtabula, Ohio locations. All three employees were laid off in 2009.

 

Plaintiff Wade Romanowski worked for Domino from 2000 to 2009. Romanowski was originally hired as a truck driver, but was medically disqualified from interstate driving in 2005. [Doc. 30–1 at 1.] From 2007 forward, Romanowski worked as a “switcher” (sometimes referred to in industry parlance as a “yardman” or “hostler”) and as a dispatcher. As a switcher, Romanowski moved trailers in and about Domino’s Jefferson lot. Romanowski also drove a semi-tractor to shuttle trailers between Domino’s lot and Smurfit, the packaging manufacturer next door. Romanowski would take empty trailers to Smurfit’s loading dock, wait while Smurfit employees loaded products into the trailers, and then drive the trailers 100–150 yards back to Domino. The “great majority of the time” the semi-tractors Romanowski used were not registered vehicles and did not have working turn signals or flashers. [Doc. 21–1.]

 

Plaintiff James Yankie worked for Domino from February 2008 to May 2009; Plaintiff Michael Verdi worked from March 2007 to May 2009. Like Romanowski, Yankie and Verdi also worked as switchers and shuttled trailers between Domino and Smurfit. [Doc. 21–2; Doc. 21–3.]

 

There is some dispute whether the Plaintiffs performed pre- and post-trip inspections of the trailers. The Plaintiffs say that, during the period relevant to this case, they did not perform safety inspections, such as checking the lights, signals, flashers, tires, and brakes, and did not document any safety inspections. The only inspections the Plaintiffs did, they say, “was to inspect the skin of the trailers to see whether there was any large hole which would permit water to get in and damage the [ cargo].” [Doc. 30–1; Doc. 30–2; Doc. 30–3.]

 

Responding, Defendant Haffey says that switchers performed basic safety inspections. [Doc. 29 at 3–4.] Domino’s terminal manager says that switchers were tasked with inspecting trailers for safety concerns and affixing red flags to problematic trailers, and were expected to observe the interior of the loaded trailers for safety problems. [Doc. 29–5 at 1.] Defendant Haffey also provides a “list of switcher duties” that Plaintiff Michael Verdi signed on May 22, 2009, the month before he was laid off. This document says that switchers must “check lights, the condition of the trailer holes, doors and tires” and make sure the trailers are “clean, swept and in good shape.” [Doc. 29–1.]

 

Against this backdrop, the Plaintiffs move for summary judgment on their claims that Defendant Haffey improperly denied them overtime pay.

 

II. Legal Standard

Under Federal Rule of Civil Procedure 56(a), a grant of summary judgment is proper if “the movant shows there is no dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, the Court “considers the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving party.” LensCrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir.2005) (citations omitted).

 

The moving party bears the initial burden to show the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to come forward with some probative evidence to support its claim. Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).

 

Exemptions under the FLSA are to be construed narrowly against the employer asserting them; the employer has the burden of proving entitlement to the exemption. Brock v. Louvers & Dampers, Inc., 817 F.2d 1255, 1256 (6th Cir.1987). If the underlying material facts are undisputed, the decision whether an employee is exempt is a question of law. Martin v. W.E. Monks & Co., No. 92–3739, 1993 WL 300332, at(6th Cir. Aug.3, 1993).

 

III. Analysis

As discussed above, the Motor Carrier Act exempts from the FLSA’s overtime-wage requirement, 29 U.S.C. § 207(a)(1), those employees whose activities directly affect the safety of operation of that motor carrier. Vaughn, 291 F.3d at 904. Only employees who work as “drivers, driver’s helpers, loaders, and mechanics” are exempt: “[N]o other classes of employees … perform duties directly affecting such ‘safety of operation.’ “ 29 C.F.R. § 782 .2(b)(1). The Defendant has not attempted to analogize the work the Plaintiffs performed as “switchers” to any of the four categories of employees that, as a general matter, are exempt from overtime. In any event, because the Plaintiffs’ jobs were not akin to drivers, driver’s helpers, loaders, or mechanics, the Plaintiffs are entitled to summary judgment.

 

The Plaintiffs in this case did not perform the work of drivers or driver’s helpers. A “driver,” is “an individual who drives a motor vehicle in transportation … in interstate or foreign commerce.” 29 C.F.R. § 782.3(a). Switchers (or hostlers), “who ‘spot’ trucks and trailers at a terminal dock for loading and unloading are not exempt as drivers merely because as an incident of such duties they drive the trucks and tractors in and about the premises of the trucking terminal.” 29 C.F.R. § 782.3(b).

 

While employed as switchers, the main vehicles the Plaintiffs drove were hostler tractors that “were not registered vehicles and did not have working turn signals or flashers.” Moreover, nothing in the record suggests that the Plaintiffs drove “over the public highways” when shuttling trailers between Domino and the “adjacent” Smurfit facility. [Doc. 29 at 2 ]; see also Billingslea v. Southern Freight, Inc., 699 F.Supp.2d 1369, 1377 n. 14 (N.D.Ga.2010) (noting “the importance of operating a vehicle on public roads for an employee to qualify as a ‘driver’ ”). Finally, although Plaintiff Romanowski was originally hired as a truck driver, he was medically disqualified from driving in 2005 and says that after August 2007 his duties “were limited to dispatching and switching.” [Doc. 30–1 at 2.] Defendant Haffey says from “2005 forward [Romanowski] did interstate driving on an as needed basis,” [Doc. 29 at 3 ], but points to no specific facts in the record to support this contention, such as a driver’s log, route-assignment sheet, or cargo-delivery receipt signed by Romanowski.

 

As to “driver’s helpers,” only employees who actually ride on a motor vehicle being operated in interstate commerce can be classified as driver’s helpers, see 29 C.F.R. § 782.4(c), and the Defendant makes no such contention here.

 

Nor did the Plaintiffs in this case perform the work of loaders or mechanics. A “loader” is an employee “whose duties include … the proper loading of his employer’s motor vehicles so that they may be safely operated on the highways of the country.” 29 C.F.R. § 782.5(a). Loaders are responsible “for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate or foreign commerce will not be jeopardized.” Id. (citation omitted). The Defendant says that the Plaintiffs “supervised the loading of trailers,” but again points to no specific fact in the record supporting this point. [Doc. 29 at 3.] Moreover, a signed affidavit from a Smurfit employee says: “The Domino drivers did not do any of the loading. Nor did they inspect the loads or tell us how to do the loading. After the loads were completed by Smurfit employees, including myself, the Domino drivers drove them a short distance to Domino’s nearby terminal.” [Doc. 21–4 at 2.]

 

A “mechanic” is an employee “whose duty it is to keep motor vehicles … in a good and safe working condition.” 29 C.F.R. § 782.6(a). The Plaintiffs say they did not perform safety inspections of the trucks or trailers they shuttled around the lots. Responding, the Defendant says that Plaintiffs were required to inspect trailers for safety concerns and affix red flags to safety issues. In support of this contention, Defendant Haffey provides a “list of switcher duties.” This document says that switchers must “check lights, the condition of the trailer holes, doors and tires.”

 

Assuming this “list of switcher duties” accurately describes the Plaintiffs’ work (as the Court must on Plaintiffs’ motion for summary judgment), the Court finds as a matter of law that these limited inspections are insufficient to convert the Plaintiffs from switchers to mechanics. “[M]echanics … actually do inspection, adjustment, repair, or maintenance work on the motor vehicles themselves” and are “directly responsible for creating or maintaining physical conditions essential to the safety of the vehicles.” Id. To the extent that Plaintiffs inspected the trailers, they at no point performed any hands-on mechanical labor. Nor did they have discretion or authority to “install, adjust, repair, or maintain any parts on the trucks and trailers.” See Billingslea, 699 F.Supp.2d at 1379. Thus, because at most the Plaintiffs performed cursory inspections of the trailers and were not directly responsible for maintaining the trailers, they are not mechanics as a matter of law.

 

IV. Conclusion

Accordingly, because the Defendant has failed to prove that the Plaintiffs performed the work of either drivers, driver’s helpers, loaders, or mechanics, and that such work directly affected the safety of operation of motor vehicles in transporting property in interstate commerce, the Court GRANTS summary judgment to the Plaintiffs.

 

As to damages, the Plaintiffs assert that a three-year period is appropriate because the Defendant’s violations were willful. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 130, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). The Plaintiffs say their repeated complaints to Defendant Haffey about the lack of overtime pay were met with “indifference and hostility.” [Doc. 30 at 15.] The Defendant makes no effort to dispute this claim or challenge the Plaintiffs’ proposed liquidated-damages amounts.

 

The Court therefore AWARDS:

 

(1) Plaintiff Wade Romanowski: $36,250.26

 

(2) Plaintiff Michael Verdi: $15,787.28

 

(3) Plaintiff James Yankie: $2274.36

 

Finally, the Court DENIES as moot the Plaintiffs’ motion to strike, [Doc. 25 ], and DENIES Defendant Haffey’s motion to reconsider the Court’s order imposing sanctions for failing to appear at a status conference and failing to notify opposing counsel or the Court of his absence. [Doc. 32.] The Defendant now says that the absence was an oversight, but offers no reason why he failed to offer this excuse to the Court in the forty-six days while the motion for sanctions was left pending and unopposed.

 

IT IS SO ORDERED.

United States District Court,

S.D. New York.

KT EXPORT and KT Quality Control PVT. Ltd., Plaintiffs,

v.

WOLF CANYON OF AMERICA, INC., USA; Wolf Canyon Asia Pacific Ltd., USA; Washington Mutual Bank (Wamu) and Mediterranean Shipping Company S.A., Geneva, Defendants.

 

No. 09 Civ. 7123(BSJ).

June 18, 2011.

 

Memorandum & Order

BARBARA S. JONES, District Judge.

Before the Court is a motion for summary judgment filed by MSC Mediterranean Shipping Company, S.A. (“MSC”). For the reasons set forth below, the Defendant’s motion is GRANTED.

 

BACKGROUND

This action arises out of an agreement between KT Export and KT Quality Control PVT. LTD. (“Plaintiffs”) to provide dehydrated white onion powder (“powder”) to the Wolf Canyon Defendants. Plaintiff’s contracted with MSC, an ocean carrier, to deliver two separate shipments of the powder from Mundra, India to Manzanillo, Mexico. (Def’s 56.1 Statement ¶ 3–5). MSC delivered both shipments to Wolf Canyon on the presentation of originals of the MSC bills of lading that were issued with respect to the First and Second shipment. (Def’s 56.1 Statement 514). Plaintiffs allege that the Wolf Canyon defendants took possession of the goods from MSC by presenting MSC with original bills of lading but that Wolf Canyon had not made payment prior to taking possession as the parties agreed. (Def’s 56.1 Statement ¶ 14). Plaintiff’s further allege that MSC should not have provided the goods to the Wolf Canyon defendants because Wolf Canyon had not made payment.

 

The cargo at issue in this litigation was shipped by MSC pursuant to two bills of lading. Both documents have identical terms and conditions contained on the back side of the bills of lading. The two provisions relevant to this litigation are found under the section “Law and Jurisdiction” Clause 2 of the agreement:

 

(a) Any claim or dispute arising from the Contract of Carriage evidenced by this B/L shall be subject to the exclusive jurisdiction of the High Court of Justice in London, and English Law shall be applied;

 

(b) Contrary to (a), any claim or dispute arising from the Contract of Carriage evidenced by this B/L relating to cargo carried to or from the United States of America shall be subject to the sole jurisdiction of the United States, U.S. District Court, Southern District of New York, and United States law shall be applied.

 

(Serrano Affidavit, Exhibit D Clause 2)

 

MSC moves for summary judgment on the grounds that: (1) the claims were brought in the wrong forum and are time barred, and (2) the complaint fails to state a claim upon which relief can be granted.

 

LEGAL STANDARD

The Supreme Court has explained that “[a] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the cause (subject-matter jurisdiction) and the parties (personal jurisdiction).” Lykes Lines Ltd. LLC v. Bringer Corp., No. 04 Civ. 4460, 2007 U.S. Dist. LEXIS 19785, at *8,2007 WL 766170 (S.D.N.Y. Mar. 12, 2007) (quoting Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007)). Accordingly, before reaching the merits under Rule 56, this Court must first determine whether its jurisdiction is proper under the parties’ Forum Selection Clause.

 

The Second Circuit has outlined a four-part test to determine whether a forum selection clause is enforceable. Phillips v. Audio Active Ltd., 494 F.3d 378, 383–84 (2d Cir.2007). First, the clause must be “reasonably communicated to the party resisting enforcement.” Id. Second, the clause must be classified as “mandatory or permissive, i.e., to decide whether the parties are required to bring any dispute to the designated forum or simply permitted to do so.” Id. Third, the “claims and parties involved … [must be] subject to the forum selection clause.” Id. Finally, a court must “ascertain whether the resisting party has rebutted the presumption of enforceability by making a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the … [clause] was invalid for such reasons as fraud or overreaching.” Id.

 

DISCUSSION

Defendants contend that the Forum Selection Clause in the Bill of Lading dictates that the instant dispute be brought in London, England and the complaint should be dismissed. The Court agrees.

 

1. Reasonable Communication

“The Second Circuit ‘regularly enforce[s] forum selection clauses as long as ‘the existence of the clause was reasonably communicated to the parties.’ “ TradeComet.com, LLC v. Google, Inc., 693 F.Supp.2d 370, 377 (S.D.N.Y.2010). Whether the existence of the clause was reasonably communicated to the parties is a question of law for the court. Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir.1995). “A forum selection clause stated in clear and unambiguous language … is considered reasonably communicated to the plaintiff in determining its enforceability.” Novak v. Tucows, Inc., No. 06–CV–1909, 2007 U .S. Dist. LEXIS 21269, at *7,2007 WL 922306 (E.D.N.Y. Mar. 26, 2007) (quoting Vitricon, Inc. v. Midwest Elastomers, Inc., 148 F.Supp.2d 245, 247 (E.D.N.Y.2001)).

 

The only argument that Plaintiffs make is that the clause is “neither legible nor clear as to any applicability.” The Court construes this argument as a claim by Plaintiffs that the clause was not reasonably communicated. The Court has reviewed the Bill of Lading and its relevant provisions: Clauses 2(a) and (b) of the Law and Jurisdiction section, attached to the Serrano Affidavit as Exhibit D. The Court had no difficulty reading these provisions, although they are in fine print, and finds the relevant provisions are legible.

 

Plaintiffs do not dispute the authenticity of this document.

 

Further, the Forum Selection Clause states in clear and unambiguous language-albeit in fine print-that all suits concerning transport of cargo to or from any country outside the United States shall be under the exclusive jurisdiction of the High Court of Justice in London. Effron, 67 F.3d at 9.

 

As the language of the Forum Selection Clause was legible, clear and unambiguous, this Court finds that the Forum Selection Clause was reasonably communicated to Plaintiff.

 

2. Mandatory or Permissive

A mandatory forum selection clause is one where it “grants exclusive jurisdiction to a selected forum,” while a permissive one “only reflects the contracting parties’ consent to resolve disputes in a certain forum, but does not require that disputes be resolved in that forum.” Macsteel Intern. USA Corp. v. M/V Larch Arrow, her engines, boiler, etc., 354 Fed. App’x. 537, 538 (2d Cir.2009). “For a forum selection clause to be deemed mandatory, jurisdiction and venue must be specified with mandatory or exclusive language.” Id. (citations and quotations omitted).

 

The Forum Selection Clause states, “[a]ny claim or dispute arising from the Contract of Carriage evidenced by this B/L shall be subject to the exclusive jurisdiction of the High Court of Justice in London, and English law shall be applied.” (Bill of Lading, cl. 2(a).) Although the use of the word “shall” is not dispositive, it is “typically employed in mandatory selection clauses.”   Salis v. Am. Exp. Lines, 566 F.Supp.2d 216, 223 (S.D.N.Y.2008). See also Seward v. Devine, 888 F.2d 957, 962 (2d Cir.1989) (interpreting the use of “shall” as mandatory venue language); Bense v. Interstate Battery System, Inc., 683 F.2d 718, 722 (2d Cir.1982) (holding that interpretation of forum selection clauses should not result in “meaningless [contracts that] would … frustrate the purpose of the parties as it is clearly set forth in the agreement”).

 

The Forum Selection Clause does not contain any language that indicates multiple venues, apart from an exception when cargo is shipped to or from the United States. The clause at issue contains language indicating the parties’ intent to make jurisdiction of the High Court of Justice exclusive and mandatory. Subsequently, this Court finds that the Forum Selection Clause confers mandatory and exclusive jurisdiction for resolution of any claim or dispute arising out of the shipment from India to Mexico in the High Court of Justice in London, England.

 

3. Application of the Forum Selection Clause

The Court finds that the claims involved in this litigation are subject to the Forum Selection Clause. Plaintiff brought this claim against Defendant for breach of contract and fraud for failing to pay for merchandise in the agreed manner. The shipments at issue sailed from India to Mexico. The Bill of Lading states that when transport is not to or from the United States, “Any claim or dispute arising from the Contract of Carriage evidenced by this B/L shall be subject to the exclusive jurisdiction of the High Court of Justice in London, and English law shall be applied.” (Bill of Lading, cl. 2(a).) Thus, Plaintiff’s claims against Defendant are subject to the Forum Selection Clause.

 

The Court further finds that the parties to this litigation are subject to the Forum Selection Clause. Under the plain terms of the agreement, the Shipper was the Plaintiff. Additionally, under the terms of the agreement, the Carrier was MSC. Accordingly, the parties involved in this suit are subject to any limitations contained in the Bill of Lading.

 

The Court finds that the parties and claims involved in this litigation are subject to the provisions contained in the Forum Selection Clause.

 

4. Rebutting the Presumption of Enforceability

The Court finds that Plaintiff has failed to rebut the presumption that the Forum Selection Clause is enforceable. To rebut the presumption, the Plaintiff must make “a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Phillips, 494 F.3d at 383–84. Plaintiff does not assert any facts indicating that enforcement of the clause would be unjust or unreasonable, or that it was the product of fraud or overreaching. Rather, Plaintiff simply argues that the clause was “neither legible nor clear as to any applicability …” (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss, at 13.) As discussed above Plaintiffs are wrong on both counts.

 

The mandatory and exclusive Forum Selection Clause contained in the Bill of Lading is valid and the Defendants are permitted to invoke it. The Forum Selection Clause clearly requires claims arising out of the transaction at issue to be brought at the High Court of Justice in London, England. Accordingly, this Court finds that Plaintiff has not met its burden of rebutting the presumption of enforceability of the Forum Selection Clause. As such, this Court does not reach the claims on the merits under Rule 56.

 

CONCLUSION

For the reasons set forth above MSC’s motion is GRANTED and the cause of action against MSC is DISMISSED The Clerk of the Court is directed to terminate the case.

 

SO ORDERED