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Bilskey v. Bluff City Ice, Inc.

United States District Court, E.D. Missouri, Southeastern Division

January 30, 2015

JIMMY BILSKEY, et al. Plaintiffs,
v.
BLUFF CITY ICE, INC., et al. Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH Jr., District Judge.

Plaintiffs filed a five-count complaint against defendants Bluff City Ice, Inc., and its owner Carl Hughes, seeking to recover unpaid wages, liquidated damages, attorney fees, and other relief for violations of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. ("FLSA"), the Missouri Minimum Wage Law, §290.500 R.S.Mo. et seq. ("MMWL"), and Missouri common law. This Court conditionally certified the class sought to be represented by the named plaintiffs (#37). Trial in this matter is set for February 2015. Currently pending before the Court are five motions: defendant Bluff City Ice's motion for summary judgment (#47), defendant Hughes's motion for summary judgment (#52) and motion to dismiss (#55), and plaintiffs' motions to dismiss defendant Hughes (#65) and Count II of their complaint (#64).

I. Background

According to the Complaint, plaintiffs Jimmy Bilskey and Leo O'Hara worked for the defendants as delivery drivers. Their duties included loading and unloading ice, ensuring the delivery truck was functional, stacking pallets, and making deliveries of ice to customers. Plaintiffs allege that defendants violated the FLSA by failing to pay their non-exempt employees overtime rates for work in excess of 40 hours per week. Specifically, plaintiffs allege that their work hours were recorded by a time clock on which they and other employees "punched" in and out. Plaintiffs allege they were instructed not to punch in to work until they had completed approximately 30 minutes of "prep work" before their shifts began. Such prep work included checking to make sure their delivery trucks were fully functional and insuring product load was accurate. In addition, plaintiffs allege they were instructed to punch out of work before they performed approximately 40 minutes of "check-out work" after their shifts. Check-out work included checking the truck to make sure it was fully functional and filling out paperwork.

Plaintiffs purport to bring their claims on behalf of all similarly situated individuals. Count I is for failure to pay overtime in violation of the FLSA. Count II is for violations of the MMWL, including failure to pay overtime and failure to keep accurate records of hours worked. Count II-2[1] is for breach of contract for the alleged failure of defendants to compensate plaintiffs for all hours worked. Count III is for unjust enrichment and seeks damages equal to all unpaid wages from the five years preceding the complaint. Count IV is for quantum meruit and similarly seeks damages equal to unpaid wages from the five years preceding the filing of the complaint.

II. Plaintiff's Motions to Dismiss

Although plaintiffs responded to defendant Hughes's motion to dismiss (#67), plaintiffs also moved to dismiss defendant Hughes without prejudice on the same date (#65). Plaintiffs' motion to dismiss will be granted, defendant Hughes will be dismissed without prejudice, and defendant Hughes's motions for summary judgment (#52) and to dismiss (#55) will be denied as moot.

III. Defendant Bluff City Ice's Motion for Summary Judgment

Defendant Bluff City Ice moves for summary judgment on plaintiffs' claims regarding defendant's "on call hours" policy. Defendant Bluff City also states that it should be granted summary judgment on FLSA claims originating more than two years before the complaint was filed.

A. Legal Standard

Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to the discussion.

B. On-Call Hours

Defendant's employees took turns being "on call" to make ice deliveries as needed on Saturdays. Plaintiffs claim that they should have been compensated for their hours on call. "Although there is no bright-line test for what constitutes compensable on-call time under the FLSA, the Supreme Court has suggested that if the employee was engaged to wait' the time would be compensable, however, if the employee was merely wait[ing] to be engaged' it would not." Darrah v. Missouri Highway & Transp. Comm'n, 885 F.Supp. 1307, 1310 (W.D. Mo. 1995) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944)). As the court in Darrah observed, that terminology is of little use in practice, so it turned to a hypothetical set out by the Department of Labor in 1994: "Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable." 29 C.F.R. § 553.221(d) (1994).[1] The court observed that "the hypothetical presents a situation in which (1) the employee has no way of knowing if he will be called into work or not; (2) he must respond if and when he is called; and (3) he will be disciplined if he does not respond quickly. Despite these facts, the Code states that this individual will normally not receive compensation for such time." Darrah, 885 F.Supp. at 1311 (emphasis in original). The court thus concluded that "that any imposition created by an on-call policy must be very ...


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