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Smith v. Metro Security, Inc.

United States District Court, E.D. Louisiana

December 9, 2019

DANIEL SMITH, individually and on behalf of others similarly situated, et al.

         SECTION M (1)

          ORDER & REASONS


         Before the Court is a renewed motion for judgment as a matter of law and motion for new trial, submitted on behalf of Metro Security, Inc. and Lloyd Jarreau (collectively, “Defendants”).[1]Plaintiffs, Daniel Smith, Edward Johnson, Darren C. Norbert, Sr., Jauvon Berryhill, Tiffany Turner, Guy Bryant, and James Washington, Jr. (collectively, “Plaintiffs”) oppose Defendants' motions.[2] Defendants filed a reply in support of the motions.[3] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons denying the motions.

         I. BACKGROUND

         This case arises from a dispute about overtime compensation owed under the Fair Labor Standards Act (“FLSA”). Jarreau owned and operated Metro Security, Inc., a business providing security services in the New Orleans metropolitan area. Jarreau and Metro Security, Inc. employed Plaintiffs as “post supervisors, ” a position that generally required employees to surveil and protect a particular “post” or area.[4] Metro Security, Inc. provided these employees with Toyota vehicles, weapons, and radios for patrol.[5] Post supervisors received a bi-weekly salary of $910, or $455 per week, regardless of the number of hours worked.[6] Occasionally, post supervisors would receive a bonus when employees worked in excess of 80 hours in a pay period, but only when Metro Security, Inc. had funds available and chose to make such a payment.

         On January 31, 2018, Smith, individually and on behalf of other similarly-situated individuals, sued Metro Security, Inc. and Jarreau, claiming that they willfully violated the FLSA by failing to pay post supervisors overtime.[7] Smith alleged that he regularly worked 60 hours per week, resulting in pay below the minimum wage.[8] The Court granted Smith's motion to conditionally certify the collective, [9] and the Defendants never moved to decertify. On September 13, 2018, Johnson, Norbert, and Berryhill, opted into the collective.[10] On September 24, 2018, Turner and Bryant opted in;[11] and on October 17, 2018, Washington did likewise.[12]

         Two days before trial, Defendants filed a motion to dismiss the case for Plaintiffs' failure to state a claim.[13] Defendants argued that Plaintiffs' allegation that “Defendants were an enterprise covered by the FLSA as defined by 29 U.S.C. §§ 203(r) and 203(s)” was insufficient under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), because it lacked any factual assertion that Metro Security, Inc.'s annual gross revenues were at least $500, 000.[14] In response, Plaintiffs urged the Court to deny the motion to dismiss as untimely in violation of the scheduling order's deadline for dispositive motions.[15] Plaintiffs also attached Defendants' interrogatory response in which Defendants admitted that “in each of the three years preceding the date this suit was filed, Metro Security, Inc. had gross revenues at or above $500, 000.00 per year.”[16] Having submitted matters outside of the pleadings but established in discovery, Plaintiffs urged the Court to treat the Rule 12(b)(6) motion as a motion for summary judgment and to deny the motion as such.[17] The Court deferred ruling on the motion until trial.[18]

         At the outset of trial, the Court denied Defendants' motion to dismiss for failure to state a claim on three grounds.[19] First, the Court denied the Rule 12(b)(6) motion as untimely, having been filed well after the deadline for dispositive motions set by the Court's scheduling order. Second, given Plaintiffs' attachment of evidence outside the pleadings in opposition to the motion, the Court converted the motion to dismiss to a motion for summary judgment under Rule 12(d). The Court denied the motion for summary judgment because Defendants failed to establish that it was undisputed that Metro Security, Inc.'s annual gross revenues were less than $500, 000 per year. To be sure, as made plain by Defendants' admission, Defendants could not possibly do so since it was undisputed that Metro Security, Inc.'s annual gross revenues were at or above $500, 000 per year. Third, the Court also denied the motion to dismiss on the alternative ground that amendment of the complaint would be permitted to conform the pleadings to the evidence of Metro Security, Inc.'s gross revenues obtained in discovery, especially since Defendants were not prejudiced by the late amendment.

         The case was tried to a jury on March 25-26, 2019. Washington, Norbert, Bryant, and Smith testified in Plaintiffs' case; Jarreau and Angela Tucker, manager of Metro Security, Inc., testified for the defense.[20] The parties stipulated that the hours and salaries indicated in trial exhibit 1, which are reflected in payroll sheets also admitted into evidence, were accurate with the exception of one typographical error that was amended by agreement.[21] At the close of Plaintiffs' case and again at the close of all the evidence, the Court denied Defendants' motions for judgment as a matter of law, wherein Defendants argued that plaintiffs Berryhill, Turner, and Johnson should be dismissed for not being present to testify, and that Plaintiffs were exempt from the overtime provisions of the FLSA. After a few hours of deliberation, the jury returned a verdict in favor of Plaintiffs, finding that Defendants willfully violated the FLSA.[22] After the verdict and after the jury was excused, Defendants again moved for judgment as a matter of law on the same grounds, and the Court took the motion under advisement.[23] The Court then ordered the parties to submit post-trial memoranda addressing the outstanding issues, including the question of damages to be determined by the Court.[24] Defendants subsequently filed a renewed motion for judgment as a matter of law and motion for new trial.[25] On July 31, 2019, the Court issued an Order and Reasons denying Defendants' post-verdict/prejudgment motions as premature and because there was a legally sufficient evidentiary basis for the jury's verdict, and awarding Plaintiffs damages and attorney's fees and costs.[26] The Court then entered judgment in favor of Plaintiffs, in accordance with that order and the jury verdict.[27]


         Defendants renew their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and move jointly for a new trial under Federal Rule of Civil Procedure 59.[28] First, they argue that because in the written consent attached to the complaint, [29] the named plaintiff, Daniel Smith, consented to being a representative party plaintiff in a collective action against only Metro Security, Inc., and did not list Jarreau, the claims and judgment against Jarreau should be dismissed.[30] Second, they argue that because the Court merely conditionally certified the collective, and never issued a final certification, the opt-in plaintiffs' claims should be dismissed without prejudice to their rights to bring individual claims.[31] Third, they argue that the Court should grant them judgment as a matter of law because there is insufficient evidence to support the jury's verdict that Plaintiffs established enterprise coverage under the FLSA, in that Plaintiffs presented insufficient evidence that Metro Security, Inc. is an enterprise engaged in commerce as defined by the FLSA.[32] Fourth, Defendants argue that the jury charge on the issue of commerce and enterprise coverage[33] was incorrect and prejudicial, and that although the issue was not preserved, the Court should grant a new trial on grounds of plain error affecting substantial rights.[34]Fifth, Defendants argue that the Court should grant judgment as a matter of law in their favor because there was insufficient evidence to support the jury's verdict that Plaintiffs were not exempt from the overtime provisions of the FLSA, and that furthermore, this was a legal question which should not have been presented to the jury.[35] Finally, they argue that there is insufficient evidence to support the jury's verdict that Defendants willfully violated the FLSA, and that the Court should find they acted in good faith and refuse to award liquidated damages, so that the Court should grant judgment as a matter of law in their favor on this issue or order a new trial.[36]

         In opposition, Plaintiffs first counter that 29 U.S.C. § 256 only requires that the individual claimant provide “written consent to become a party plaintiff” and does not require identification of all defendants.[37] Moreover, because the complaint filed by Smith identifies Jarreau as an employer and defendant to the collective action, and the written consent was attached as an exhibit to the complaint, Plaintiffs argue it was clear Smith consented to become a party plaintiff to a collective action against both Metro Security, Inc. and Jarreau.[38] Second, Plaintiffs argue that there is no requirement to file a motion for final certification in a FLSA collective action, and that it was Defendants “who were tasked with filing a motion to decertify” under the Court's order granting certification.[39] Third, Plaintiffs argue that the evidence presented at trial was sufficient to prove by a preponderance of the evidence that Plaintiffs handled or otherwise worked with materials that had been moved in or were provided for commerce, as required by 29 U.S.C § 203.[40] Fourth, they argue that Defendants waived any objections to the jury charge at issue, and in their only objection to Plaintiffs' proposed jury charges, Defendants even cited this charge positively.[41]Fifth, Plaintiffs argue that the burden of proof on the executive exemption issue was on Defendants, and so it was Defendants who failed to provide sufficient evidence to rebut Plaintiffs' evidence that they were not exempt from the FLSA.[42] Finally, Plaintiffs maintain that the issue of willfulness is a factual determination left to the jury which should not be disturbed because Jarreau testified that he paid Plaintiffs the lowest he could while trying to avoid overtime liability, and that the jury arrived at its decision having witnessed his demeanor and attitude during testimony.[43]

         In reply, Defendants mostly reiterate their arguments on the first, second, fourth, fifth, and sixth issues, without citation to any supporting case law.[44] On the issue of enterprise coverage, they reurge that Plaintiffs presented no evidence that the firearms or trucks were manufactured outside of Louisiana or crossed state lines.[45] In particular, Defendants distinguish the case on which Plaintiffs rely, Williams v. Hooah Security Services LLC, 2011 WL 5827250 (W.D. Tenn. Nov. 18, 2011), in that the plaintiffs there presented evidence that the weapons and tools handled by the security guards were manufactured or purchased outside Tennessee.[46]

         III. LAW & ANALYSIS

         A. Motion and Renewed Motion for Judgment as a Matter of Law

         Rule 50 of the Federal Rules of Civil Procedure requires a party to “specify the judgment sought and the law and facts that entitle the movant to the judgment” upon motion at trial before the jury renders its verdict. Fed.R.Civ.P. 50(a)(2); Puga v. RCX Sols., Inc., 922 F.3d 285, 290 (5th Cir. 2019). “If the pre-verdict motion is denied, then the party can renew its motion under Rule 50(b). But the renewed Rule 50(b) is ‘technically only a renewal of the [Rule 50(a) motion for judgment as a matter of law].'” Puga, 922 F.3d at 290 (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)) (bracketed language in original). Rule 50(b) provides in part: “If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion.” As a consequence, “[i]f a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal.” Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001); see also In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this argument at trial or in its Rule 50(a) motion, [the appellant] has waived its right to bring a Rule 50(b) motion on this ground.”). The Rule 50(b) waiver is “designed to prevent a litigant from ambushing both the district court and opposing counsel after trial.” Puga, 922 F.3d at 290-91 (citing Quinn v. Sw. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberations, counsel still may do whatever can be done to mend his case. But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial. It is contrary to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.”)) (other citation omitted).

         Judgment as a matter of law under Rule 50 is warranted only where “the facts and inferences point so strongly and overwhelmingly in favor of one party that the court concludes reasonable jurors could not arrive at a contrary verdict.” Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 248-49 (5th Cir. 2005) (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997)) (citing Fed.R.Civ.P. 50(a)). Stated differently, “[a] jury verdict must be upheld unless there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Heck v. Triche, 775 F.3d 265, 273 (5th Cir. 2014) (quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)). Thus, to prevail on a Rule 50 motion, “the party opposing the motion must at least establish a conflict in substantial evidence on each essential element of [its] claim.” N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 473 (5th Cir. 2018) (quoting Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1039 (5th Cir. 2011)). “‘Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Conn. Gen. Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d 478, 485 (5th Cir. 2017)).

         “[W]hen evaluating the sufficiency of the evidence, [courts] view all evidence and draw all reasonable inferences in the light most favorable to the verdict.” Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005). However, “credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts” remain within the province of the jury. Kelso v. Butler, 899 F.3d 420, 425 (5th Cir. 2018) (quoting Hurst v. Lee Cty., 764 F.3d 480, 483 (5th Cir. 2014)).

         Rule 50(b) further provides that a party “may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59.”

         B. Motion for a New Trial

         Rule 59(a) provides a district court discretion to grant a new trial “on all or some of the issues … after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a); see also Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“the decision to grant or deny a motion for new trial … rests in the sound discretion of the trial judge”). While the rule does not specify the grounds necessary for granting a new trial, the Fifth Circuit has instructed that “[a] new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations omitted). A district court may also grant a new trial when the jury's verdict is logically inconsistent if, after viewing the evidence in the light most favorable to a finding of consistency, reconciliation is impossible. See Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 343 (5th Cir. 2001); Willard v. The John Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978) (“Answers should be considered inconsistent, however, only if there is no way to reconcile them.”).

         When a movant argues that insufficient evidence supports the verdict, the district court should deny the motion “unless the verdict is against the great weight of the evidence.” Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998) (quoting Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th Cir. 1986)); see also Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (“new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great - not merely the greater - weight of the evidence”) (quotation omitted). In contrast to the standard applicable to a Rule 50 motion, “[a] verdict can be against the ‘great weight of the evidence,' and thus justify a new trial, even if there is substantial evidence to support it, ” and a district court may weigh the evidence when resolving whether a new trial should be granted on this ground. Shows, 671 F.2d at 930.

         C. Analysis

         1. Smith's Written Consent

         Defendants first seek judgment as a matter of law on the ground that Smith's written consent listed only Metro Security, Inc., not Jarreau, as a defendant to the suit. Defendants do not request a new trial based on this issue but rather that the “claims and judgment against Mr. Jarreau … be dismissed.”[47] Defendants did not raise this issue in either of their pre-verdict motions for judgment as a matter of law, or their post-verdict/prejudgment motion, for that matter. As such, they waived their right to file a renewed post-verdict Rule 50(b) on this issue. See Flowers, 247 F.3d at 238.

         Even if they had raised it, though, their argument is meritless. Section 216(b) of title 29 of the U.S. Code provides employees a collective right of action against employers for, inter alia, failure to pay overtime compensation, and it requires that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b) (emphasis added). Section 256 specifies that the collective action “commence[s] … on the date when the complaint is filed, if [the individual claimant] is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date.” 29 U.S.C. § 256(a) (emphasis added). These statutes do not contain a requirement that the written consent name any or all defendants. Smith was named as the party plaintiff in the complaint against both Metro Security, Inc and Jarreau, and his written consent, attached to the complaint along with summonses addressed to both defendants, clearly indicated he consented to become a party plaintiff in this action.[48] Plaintiffs correctly observe that the consent-to-sue must be read in conjunction with the complaint commencing this suit to which consent was given.[49] Further, as Plaintiffs also note, “Defendants have not cited a single authority for” their assertion that the written consent must name all the defendants, [50] an assertion which is without foundation in the text of the statute in any event.

         2. Class Certification

         Next, Defendants argue that the Court's failure to issue a final certification dooms the collective nature of the action. As with the first issue, Defendants do not move for a new trial because “no ‘final certification' analysis occurred, ” but rather ask the Court to dismiss the opt-in plaintiffs' claims as a collective action without prejudice to their right to bring individual claims.[51]Yet they did not include this issue in their motions for judgment as a matter of law during the trial, and therefore, have waived this issue too.[52]

         Even if they had included decertification in their motions, Defendants had likely already waived this issue by failing to move to decertify the collective action before trial. When this Court certified the class, the order specifically stated that the Court would “revisit the issue should Defendant choose to file a motion to decertify following a discovery period.”[53] See Baldridge v. SBC Comm., Inc., 404 F.3d 930, 931 (5th Cir. 2005) (explaining that a FLSA conditional certification order “is subject to revision before the district court addresses the merits”) (emphasis added); see also Teed v. JT Packard & Assocs., Inc., 2009 WL 667183, at *1 (W.D. Wis. Mar. 10, 2009) (“The [defendants'] failure to [submit a motion to decertify the FLSA class by the deadline for decertification] operates as a waiver …. In other words, … defendants have waived their right to decertify the FLSA class.”).

         Defendants argue that without final certification the class did not have “independent legal status, ” and the case “could not proceed to trial as a collective action.”[54] Defendants point to Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), where the Supreme Court stated that “[u]nder the FLSA, by contrast, ‘conditional certification' does not produce a class with an independent legal status, or join additional parties to the action.” Id. at 75. But Defendants distort this statement: the Supreme Court was contrasting collective actions under the FLSA with class actions under Federal Rule of Civil Procedure 23, which does not require plaintiffs to opt in. The Supreme Court continued, “[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees, … who in turn become parties to a collective action only by filing written consent with the court.” Id.

         Defendants cite two Third Circuit cases in support of their belated argument that final certification was required to proceed to trial. The first discusses the standard for final certification. See Zavala v. Walmart Stores Inc., 691 F.3d 527, 535-37 (3rd Cir. 2012) (holding that the standard is whether the proposed collective plaintiffs are “similarly situated”). The second discusses “what is a ‘collective action' under the FLSA, ” specifically contrasting it with Rule 23 class actions. See Halle v. West Penn Allegheny Health System Inc., 842 F.3d 215, 222-26 (3rd Cir. 2016) (unlike under Rule 23, “the existence of a [FLSA] collective action depends upon the affirmative participation of opt-in plaintiffs”) (emphasis added). In Zavala, the Third Circuit cited to a note in a Second Circuit case, Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010), which expounds on the distinctives of FLSA actions:

Indeed, while courts speak of “certifying” a FLSA collective action, it is important to stress that the “certification” we refer to here is only the district court's exercise of the discretionary power, upheld in Hoffman-La Roche [Inc. v. Sperling, 493 U.S. 165 (1989), ] to facilitate the sending of notice to potential class members. Section 216(b) does not by its terms require any such device, and nothing in the text of the statute prevents plaintiffs from opting in to the action by filing consents with the district court, even when the notice described in Hoffman-La Roche has not been sent, so long as such plaintiffs are “similarly situated” to the named individual plaintiff who brought the action. … Thus “certification” is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful “case management” tool for district courts to employ in “appropriate cases.” Hoffmann-La Roche, 493 U.S. at 169, 174.

Myers, 624 F.3d at 555 n.10 (emphasis added), cited with approval in Zavala, 691 F.3d at 536. Thus, the FLSA does not require a strict two-step “certification” process, [55] but rather, requires only that the plaintiffs affirmatively provide consent (opt in), unlike under Rule 23 (opt out), and that they be “similarly situated.” 29 U.S.C. § 216(b). If a court, such as this one, does use the two-step process, the conditional certification is certification, and “[a] decertification decision would be a revision of the original order.” Baldridge, 404 F.3d at 931 n.3 (emphasis in original); see also In re Wells Fargo Wage & Hour Employ. Pracs. Lit. (No. III), 18 F.Supp.3d 844, 853 (S.D. Tex. 2014) (explaining that the Fifth Circuit does not require final certification to approve a FLSA collective action settlement).

         Here, the Court certified the collective action and the opt-in plaintiffs provided their written consents. Defendants never filed a motion to decertify, which the Court clearly noted in the conditional certification order was up to them. In essence, then, by Plaintiffs' action, Smith's individual suit became a conditionally-certified collective suit; by Defendants' inaction, conditional certification became final certification - which certainly occurred once the jury and the Court were called upon to address the merits (Big Lots) and a final judgment entered (Baldridge). When the Court certified the class, it noted that “Defendant concedes that all Post Supervisors are similarly situated.”[56] It is uncontested that the Plaintiffs were all employed by Defendants as post supervisors.[57] Defendants did not dispute that the Plaintiffs were similarly situated, nor do they now. And this is the issue central to the second step of the analysis typically addressed on a motion to decertify. In sum, then, Defendants only argue, after receiving an unfavorable judgment, that the Court did not conduct a second look at certification, which they took no steps to prompt, on an issue they do not contest.

         The opt-in plaintiffs properly became parties to this collective action under § 216(b), and the Court declines Defendants' belated request to dismiss Plaintiffs' claims as a collective action. Defendants cite to no authority on point that would require, or even counsel, a different result.

         3. Enterprise Coverage

         Defendants also seek judgment as a matter of law on the basis that Plaintiffs did not prove that Metro Security, Inc. is an enterprise engaged in commerce as defined by the FLSA. Once again, Defendants do not seek a new trial on this basis, nor did they include this issue in their pre-verdict motions for judgment as a matter of law. Defendants did file a last-minute pre-trial motion to dismiss on the basis that Plaintiffs' allegations were insufficient to allege “enterprise coverage” under 29 U.S.C. § 207(a)(1), but their argument was based on the second prong of the definition set out in 29 U.S.C. § 203(s)(1)(A): that Plaintiffs had not sufficiently alleged that Metro Security, Inc. had annual gross revenue of at least $500, 000.[58] The Court denied the motion at the beginning of trial, with Defendants noting their objection to the ruling.[59] Defendants now base their argument on the first prong of the definition: that Plaintiffs failed to provide sufficient evidence demonstrating that Defendants are engaged in interstate commerce.[60]

         The FLSA's overtime provisions cover any employee “employed in an enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1). This is known as “enterprise coverage.” Section 203(s)(1)(A) defines such an enterprise in part as one that

(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500, 000 (exclusive of excise taxes at the retail level that are separately stated).

         Plaintiffs provided evidence that they were provided with Toyota vehicles and fuel to perform their jobs as post supervisors.[61] They also provided evidence that they carried Smith and Wesson revolvers and ammunition in connection with their positions.[62] Defendants provided no evidence that the tools and vehicles used by the Plaintiffs were produced or manufactured entirely within the state of Louisiana. As Plaintiffs explain, in Williams v. Hooah Security Services, the court held that evidence that the plaintiff security guards, in the course of their employment, carried handguns and magazines purchased and manufactured outside of the forum state, was sufficient to support a finding that they were employees who “handled … materials” that had “moved in commerce.” 2011 WL 5827250, at *9-10.[63] Defendants argue that unlike Williams v. Hooah Security Services, where it was undisputed that the firearms and magazines were manufactured and purchased outside Tennessee, here, plaintiffs “left it to the jury to divine where the [Toyota] vehicles were manufactured or produced, or simply to make an unsupported inference that it must have been outside Louisiana”[64] and that “[t]here were no specific allegations that the defendants' business was other than local.”[65]

         Defendants' argument is like one made by the defendants in Juarez v. Wheels Pizza Inc., 2015 WL 3971732 (S.D.N.Y. June 30, 2015), where they asserted that the FLSA did not apply because their “pizza business was not engaged in interstate commerce.” Id. at *2 n.3. There, the court pointed to the plaintiff's testimony that he had engaged in the sale of “soft drinks and beer” in his employment, explaining that “[i]t is logical to infer that these and other goods moved in interstate commerce, which is sufficient to satisfy this requirement.” Id. (citing Jacobs v. N.Y. Foundling Hosp., 577 F.3d 93, 99 (2d Cir. 2009), for the proposition that “the interstate commerce requirement is rarely difficult to establish because it is met by showing that two or more employees have handled materials that have been moved in commerce”) (internal quotation marks and brackets omitted). Likewise, on the basis of the evidence developed at trial, it was reasonable for the jury to infer that the Toyota vehicles, Smith and Wesson revolvers, and ammunition handled by Plaintiffs had moved in interstate commerce (especially without any evidence to the contrary), thereby satisfying this requirement for enterprise coverage.

         4. Jury Charge

         Defendants argue that the Court should grant a new trial based on an “incorrect and prejudicial jury charge.”[66] The charge states:

To succeed on their claims, each of the plaintiffs … must prove each of the following facts by a preponderance of the evidence:
2. As to each plaintiff, that he or she was engaged in commerce or in the production of goods for commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce that had gross annual sales of at least $500, 000.00 for the relevant period ….
The term “commerce” has a very broad meaning. It includes any trade, transportation, transmission, or communication among the several states, or between any state and any place outside that state. … An “enterprise engaged in commerce or the production of goods for commerce” means a business that has employees engaged in commerce or the production of commercial goods for commerce and has an annual gross sales of at least $500, 000.00.
The FLSA provides enterprise coverage for employers whose employees are engaged in “handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.” The term “materials” as used in the FLSA means tools or other articles necessary for doing or making something which, in the context of their use, have a significant connection with the employer's commercial activity. For instance, a security company may be found to constitute an “enterprise” if the firearms of the company's employees are materials moved and produced in commerce, or if the employees used the firearms for performing a commercial purpose of the company, such as providing security services to its clients.[67]

         The last paragraph is an explanation of the “handling clause” in 29 U.S.C. § 203(s)(1)(A)(i).[68] Defendants argue that the charge is incorrect because the illustration of the “handling clause” (“For instance, a security company…”) “is stated in the disjunctive (‘or'), but the company qualifies as an enterprise under the FLSA only if both criteria in the instruction are met - the firearms were in the past produced in or moved interstate and the employees used them for a commercial purpose of the company.”[69] Defendants also argue that the instruction was “directly prejudicial to the defendants because the court did not use a neutral hypothetical, but instead focused on ‘firearms,' which are directly at issue in this case.”[70]

         Defendants admit that they did not preserve this issue, as they never objected to this instruction either before or during trial, [71] and so instead argue that their concern amounts to “plain error” under Federal Rule of Civil Procedure 51(d)(2), which they claim is a sufficient basis to grant a new trial.[72] In Garza v. Caplin, 745 Fed.Appx. 230 (5th Cir. 2018), the Fifth Circuit addressed the denial of a motion for new trial based on an allegedly incorrect jury instruction to which the plaintiff-appellant had not objected before or during trial. The court explained that because there was no objection, it would review for plain error, so that to overturn the verdict it would have to “find an obviously incorrect statement of law that was probably responsible for an incorrect verdict.” Id. at 231 (citing Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000)) (internal quotations omitted). The Fifth Circuit assumed without deciding, however, that because the issue was “in the context of the district court's denial of [appellant's] motion for a new trial, ” the standard of appellate review would instead be “prejudicial error.” Id. (citing Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989)); see also Aero Int'l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1113 (5th Cir. 1983) (“A new trial is the appropriate remedy for prejudicial errors in jury instructions.”) (internal citations omitted). The court explained that in the “Rule 59 context, there is prejudicial error if the jury's verdict is against the great - not merely the greater - weight of the evidence.” Garza, 745 Fed. App'x at 231 (internal citations and quotations omitted).

         Turning to the issue at hand, the charge begins with a straightforward statement of the law: that each plaintiff had to prove by a preponderance of the evidence that he or she was “employed by an enterprise engaged in commerce or in the production of goods for commerce.”[73] See 29 U.S.C. § 207(a)(1). The Court then explained the broad meaning of “commerce, ”[74] so that it was clear that interstate commerce was required. The Court then included the statutory text of the “handling clause.” See 29 U.S.C. § 203(s)(1)(A)(i). It followed this with a definition of the clause's term “materials” adopted from Polycarpe, 616 F.3d at 1226, as this term is not defined in the FLSA, and there is no Fifth Circuit decision construing it. Several district courts have found the Eleventh Circuit's construction of the term persuasive. See, e.g., Landeros v. Fu King, Inc., 12 F.Supp.3d 1020, 1023-24 (S.D. Tex. 2014) (reviewing term's definition against historical backdrop of amendments to FLSA); White v. NTC Transp., Inc., 2013 WL 5430512, at *5 (N.D. Miss. Sept. 27, 2013) (“Once the Eleventh Circuit handed down the Polycarpe decision, several district courts addressed enterprise liability under the FLSA using the standards set forth.”). Defendants only take issue with the illustration following this definition, which illustration was adopted from the opinion in Williams v. Hooah Security Services, 2011 WL 5827250, at *8-10 (applying the Polycarpe construction of the term “materials” in the handling clause).[75]

         At the outset, then, the Court notes that the illustration appears in the instruction only after an undisputedly correct statement of the law. Viewed in this context, the Court does not find the illustration to amount to a plain or prejudicial error. The first clause in the illustration states that “a security company may be found to constitute an ‘enterprise' if the firearms of the company's employees are materials moved and produced in commerce.” This merely inserts the word “firearms” into the statutory text and is alone sufficient to find enterprise coverage. Indeed, Defendants themselves state that the “inquiry for enterprise coverage under the FLSA is whether the ‘goods' or ‘materials' were in the past produced in or moved interstate.”[76] The second clause contextualized firearms as “materials”: that a security company could be found to be an “enterprise … if the employees used the firearms for performing a commercial purpose of the company, such as providing security services to its clients.” This was directly adopted from Williams v. Hooah Security Services, where the court found that a security company's employees' firearms were “‘materials' within the definition of the FLSA because they are ‘articles necessary for doing something' - providing security for clients” and they were used “for Defendants' commercial purpose of providing armed security services to its clients.” 2011 WL 5827250, at *9. In other words, the second clause merely illustrates the meaning of “materials” in the first clause.

         Defendants' claim that this instruction presented the inquiry as “whether [the firearms] were most recently purchased intrastate, ”[77] as opposed to moved interstate, contravenes its plain reading. Defendants fail to read the instruction as a whole and then distort it by implying that it can be read to teach that qualifying materials can include items confined to an intrastate transaction. When properly and fairly read, the instruction says no such thing and is a far cry from an “obviously incorrect statement of law, ” and further, Defendants provide no support that this instruction was “probably responsible for an incorrect verdict.” See Garza, 745 Fed.Appx. at 231. Defendants cite to no case holding that the instruction as a whole misstates the law. Nor do Defendants provide any evidence that this instruction prejudiced the jury, but merely assert that the illustration was not “neutral.” Again, they point to no caselaw holding any similar illustration to be non-neutral especially where, as here, it follows a correct statement of law. Defendants fail to show that any possible error or lack of neutrality in this illustration caused the “jury's verdict [to be] against the great … weight of the evidence.” Id. Moreover, even if the illustration in the instruction could have been better drawn, the question is “not whether an instruction was faultless in every respect, but whether the jury, considering the instruction as a whole, was misled.” Aero Int'l, 713 F.2d at 1112 (quoting Mid-Tex. Comm. Sys., Inc. v. AT&T, 615 F.2d 1372, 1390 n.16 (5th Cir. 1980)) (emphasis added). Considering the entire instruction here, Defendants have not shown that the jury was misled by it, and thus the illustration in the jury instruction is not a sufficient basis to grant a new trial.

         5. Finding on ...

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