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Moresi v. Resource Energy Ventures and Construction Co LLC

United States District Court, W.D. Louisiana, Lafayette Division

September 10, 2018

Moresi, et al
v.
Resource Energy Ventures and Construction Company LLC

          Brian A. Jackson Judge

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the undersigned, on referral from the district judge, is Defendant Gulf Coast Services, Inc.'s (“GSSI”) Unopposed[1] Motion For Partial Summary Judgment For Defense and Indemnity [Rec. Doc. 61]. For the following reasons, the undersigned will recommend that GSSI's Motion be DENIED.

         This action arises from a case brought by Dylan John Moresi and others similarly situated (“Plaintiffs”) against Resource Energy Ventures and Construction Company LLC (“REVCO”) and GSSI for failure to pay overtime wages pursuant to the Fair Labor and Standards Act (“FLSA”). On August 21, 2015, Moresi filed this action against REVCO on behalf of himself and all others similarly situated. Moresi alleged that he and the putative plaintiffs were current and former employees, who were misclassified as independent contractors by REVCO as they should have been classified as non-exempt employees entitled to overtime pay under the FLSA. R. 1. On January 14, 2016, Moresi amended the Complaint to add GSSI, alleging that “REVCO was merely a front or sham company” and GSSI was Moresi's “true employer, ” or alternatively that GSSI was a “joint employer within the meaning of the FLSA.” R. 14, ¶ 12. Plaintiffs filed a Motion For Conditional Class Certification pursuant to 29 U.S.C. § 216(b) against REVCO and GSSI seeking to certify a collective action on behalf of those similarly situated employees who were not paid overtime for hours worked in excess of forty (40) hours in a work week. R. 38. In its ruling, the Court held there was “sufficient evidence to find at this stage that GSSI and REVCO were joint employers under the FLSA, and Plaintiffs were entitled to additional discovery on the existence of a joint relationship between them.”

         GSSI entered into a Master Services Agreement (“MSA”) with REVCO on February 20, 2015, to provide labor services to GSSI pursuant to the MSA in connection with GSSI's work building vessels for BAE in Mobile Alabama in 2015. Id., R. 44-2, Dupuy Affidavit. The MSA required that REVCO comply with all federal law, and promptly pay its workers for the labor supplied. R. 44-2. The MSA required REVCO to pay 100% of amounts due directly to REVCO employees. It authorized REVCO to provide subcontractor labor if it chose to do so. It required REVCO to carry Workers' Compensation coverage, Longshore and Harbor workers compensation coverage, and employer's liability coverage for the workers it provided regardless of their classification. See R. 42, Dupuy Affidavit, R. 44, pp. 2, 8-9. The record indicates that the workers signed written agreements with REVCO which provided that any payment for their services was to be paid directly from GSSI to REVCO and not to the employees themselves, and that they were hired as “independent contractors.” Id.; R. 44-5, 44-6, 44.7, 44-8.

         The MSA provides, in pertinent part, as follows:

2. INDEPENDENT CONTRACTOR
* * *
As an independent contractor, Contractor [REVCO] warrants that it has competent, properly trained personnel capable of safety and properly performing all work and services performed hereunder and that Contractor and its employees will comply with all laws, rules, and regulations, whether federal, state or municipal, which now or in the future may be applicable to all service or work performed hereunder or applicable to Contractor's business, equipment or employees engaged in or in any manner connected with its performance hereunder, and Contractor agrees to release, defend, indemnify and hold harmless Gulf South Group (as defined in Section 3) from and against any and all liability, claims, demands, liens, damages, expenses (including attorney's fees), fines, penalties, and suits directly or indirectly arising out of or resulting from any breach of such warranty.

(Emphasis added.)

* * *
6. LIENS
Contractor shall pay promptly any and all amounts owing by it for work performed services rendered or materials furnished in connection with jobs performed under this contract so that no lien shall ever attach or be permitted to attach to property of Gulf South Group, whether real or personal, and Contractor hereby agrees to defend and indemnify Gulf South Group from and ...

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