### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-20424

ALVARO ALBANIL, ET AL. Plaintiffs-Appellants
v. COAST 2 COAST, INC. AND JEFFREY WAYNE TAYLOR Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CV-00486

B efore JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ, Dis t r i c t Judge. *1 RODRIGUEZ, District Judge. Plaintiffs-Appellants appeal the distri c t court’s grant of summary judgment on their Fair Labor Standards Act (“FLSA”) claims. Appellants ar e forty-one individuals employed by Appellee Coast 2 C o a s t , Inc. (“C2C”). They travel around the co u n t ry i n C 2 C’s “rigs,” which consist of a pickup truck and trailer with an attached compressor, to various job s i t e s , wh ere they remove U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 13 , 20 11 Lyle W . Cayce Clerk

Purs uant to Fift h Circ uit Rule 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in Fift h Circ uit Rule 47.5 .4.
D ist ric t Judge of the Wes ter n D ist ric t of Texas , sit ting by d es ignati on. 1 Case: 10-20424 Document: 00511631302 Page: 1 Date Filed: 10/13/2011No. 10-20424

hardened concrete from the insides of concrete mixer drums and other enclosed
spaces. Appellants sued C2C for alle ge d viol atio n s of the FLSA’s minimum-wage and overtime requirements. T h e f i r s t i s s u e o n a p p e a l i s w h e th e r t h e M o t o r C a rr i e r Ac t ( “M C A” ) exemption to the FLSA’s overtime requirements applies. Appellants challenge the district court’s conclusion t h a t i t does. This issue involves determining wheth e r C 2 C operated “commercial motor vehicles” during the relevant time period. A “commercial motor vehicle” is defined by statute as a “self-propelled

or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater” or meets certain other criteria not relevant here. The parties dispute whether the weight of the pickup t r uck and the trailer may be combined to reach the 10,001 pound threshold, as stated in a Department of Transportation regulation, or whether the us e of the disjunctive “or” in the statutory definition requires them to be considered separ a t e l y . We hold that the district court correctly combined the weights of the pickup and trailer to conclude that the MCA exemption applies, and that summary judgment was appropriate on Plaintiffs’ overtime claims. The other issue on appeal is whether the district court committed harmful

error in granting summary judgmen t s u a sponte in favor of Defendants on certain Plaintiffs’ minimum wage claims. We hold that the district court erred by granting sua sponte summary judgment without sufficient notice, a n d t h a t the error was harmful because Plaintiffs’ evidence raise s a material fact issue concerning liability. Accordingly, the di s trict c o urt’ s gr ant of s u m mary judgment

o n c e r tain Plaintiffs’ minimum wage claims is reversed, and this case i s remanded for further proceedings consistent with this opinion.

2 Case: 10-20424 Document: 00511631302 Page: 2 Date Filed: 10/13/2011No. 10-20424 I. A. Factual Background The facts of this case are largely u n di sputed. Defendant C2C provides concrete chipping services to customers in a number of states, and its employees travel to customer sites in company rigs to perform chipping services. Plaintiffs

are current and former employees of C2C. Most are or w e re employed as “chippers,” who removed hardened concrete from the inside of mixer drums and other enclosed spaces. Two are or were employed as foreme n , w h o were primarily responsible for dr iving C2C’s rigs and who supervised the chippers’ work. Plaintiffs reside in Harris County, Texas. They report to C2C’s office in

2 Pasadena, Texas, and then load their e qu i p m e n t onto C2C’s rig. They depart from Pasadena to job sites around the country, traveling in the ri g , a n d t h en return to Pasadena after several weeks. They are paid, on an hourly basis, only for the time between their arrival at and departure from a job site. B. Procedural Background On February 11, 2008, Plaintiffs filed t h i s collective action under the FLSA, 29 U.S.C. §§ 206-207, 215, against C2C and its President, Jeffrey Taylor. Plainti f f s a s serted claims under the FLSA for failure to pay minimum and overtime wages, as well as a claim for illegal deductions in violatio n o f T exas Labor Code § 415.006 (by collecting a premium or fee for workers’ compensation insurance). The parties filed a stipulation th a t a l l Plaintiffs are and were

3 employees of Defendants under the FLSA and Chapter 415 of the Texas Labor

This is a cons olid ated act ion. Fift een Plaint iff s em plo yed b y C2C as chip per s fil ed 2 thei r Or iginal Com plai nt in 08-CV- 486, and tw o Plaintiff s (Abe l Ram irez and Martin Rivas) em plo yed as for em en fil ed thei r Or iginal Complain t in 08-CV- 487. App roxim atel y tw enty- fou r add itio nal chip per s joinedby fil ing c ons ents p urs uant to 29 U .S .C. § 216(b).

Sec tio n 415. 006 of the Texas Labor Code pr ovide s that “[ a]n em plo yer may not coll ect 3 fr om an em plo yee, dir ect ly or indi rec tly, a pr em ium or othe r fee paid by the em plo yer to obta in wo rk ers ' com pens atio n ins uranc e cov e r a g e , excep t as pr ovide d by Sec tio ns 406. 123 and 406. 144. ” 3 Case: 10-20424 Document: 00511631302 Page: 3 Date Filed: 10/13/2011No. 10-20424

Code during the relevant times, were not independent contractors, and that C2C

was and is Plaintiffs’ employer. On November 17, 2008, the district court granted Plaintiffs’ motion to certify a class of chippers. The class consists of “all current and former hourly-paid workers who worked for Co a s t 2 C o ast, Inc., performing concrete removal work, between June 16, 2005, and the present.” On August 3, 2009, the parties filed cross-motions fo r p artial summary judgment on the issue of whether the MCA exemption applies to Plaintiffs’ overtime claims. Plaintiffs also filed a second motion f o r partial summary judgment on specific issues r e lated to their minimum-wage and Texas Labor Code claims. On March 3 1 , 2 010, the district court issued an order granting Defendants’ motion for partial summary judgment on the MCA exemption and denying Plaintiffs’ motions for partial summary judgment. The district court concluded that the term “commercial motor vehicle” should be given its “current meaning” under the existing DOT regulations, which con t emplate a combined gross weight, and thus the weight of the pickup trucks and the loaded trailers could b e combined in determining whether Defendants’ rigs met the weight requirement. Considering the summary ju d g m ent evidence, the district court found that Defendants’ rigs met the weight requirement and that the chippers qualified as drivers’ hel p e rs, and were thus exempt. Accordingly, the district court concluded that Defendants had shown the applicability of the MCA exemption as a matter of law. Although Defendants did not file a motion for summary judgment on the issu e o f l i ability on Plaintiffs’ FLSA minimum-wage claims, the district court granted summary judgment in favor of Defendants. T h e di s t rict court found that De f e n d a n t s had asked the court to deny the claims as a matter of law in their response to Plaintiffs’ motion, and that sufficient opportunity was afforded both sides to brief the matter. The district court stated that, even if it were to

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agree with Plaintiffs that they sh o uld have been compensated for some of the activities they performed, “this would not be enough to show a minimum wage violation – the violation occurs only if the total hours worked divided by the pay is less than minimum wage.” Because the Plaintiffs had not offered evidence to show that their total hours worked divided by their pay was less than the

m inimum wage, the district court found that they had not met their initia l burden o n t h e minimum-wage violations and that summary judgment for Defendants was warranted. The district court also fo u n d t h at it lacked jurisdiction over Plaintiffs’ Texas Labor Code claims because they did not request an administrative h e a r ing. That same day, the district court issued a final take-nothing judgment. 4 Plaintiffs timely filed a Motion to Alter or Amend the Judgment, challenging only the district court’s summary j u d gment on their FLSA minimum

- wage claims. Plaintiffs noted that Defendants did not move for
summary judgment on the minimum-wage claims, and argued that the district court’s grant of summary judgment was both without notice and harmful because Plaintiffs could adduce evidence in support of those claims, which they submitted with the motion. After the district court denied the motion, Plaintiffs timely filed this appeal.

With in its Me mo rand um Op inion and Or der , t h e d i s t r i c t court conc lude d that it 4 lack ed juris dic tio n over the Texas Labor Code clai m and st ated that Plaint iffs’ “cl aim s for the wo rk ers ’ com pens atio n ded uct ion unde r the Texas Labor Code are dis mi ss ed for lack of subject mat ter juris dic tio n.” Ho we ver, in its conc lus ion, the dis tri ct cour t fai led to note the dis mi ss al of the Texas Labor Code cla i m f o r w a n t of juris dic tio n, and ins tead grant ed sum mar y judgm ent on all of Plaint iffs’c laim s. Furt her, the dis tri ct cour t’s f inal judgm ent st ates t hat “[ j]ud gmen t is ente red for the def enda nt on all of the plai ntif f' s [si c] clai ms , and plai ntif f [si c] sha ll tak e noth ing.” No Plaint iffs chall enge the dis tri ct cour t’s dis pos itio n of the Texas Labor Codec laim s. 5 Case: 10-20424 Document: 00511631302 Page: 5 Date Filed: 10/13/2011No. 10-20424 II. All Plaintiffs appeal the di s trict court’s grant of summary judgment on their overtime claims, arguing that the district court misconst r u e d the MCA exemption to the FLSA’s overtime requirements. All but si x of the Plaintiffs challenge the district court’ s sua sponte grant of summary judgment on the minimum wage claims. We have jurisdiction pursuant to 28 U.S. C

. § 1291 5 because this is an appeal from a final judgment. We review the dist r i c t c o urt's grant of summary judgment de novo , applying the same legal standards as the district court. Catlin Syndicate Ltd.

v. Imperial Palace of Miss., In c . , 600 F.3d 511, 513 (5th Cir. 2010). Summary judgment is appropriate where the submissi o n s show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. F E D

. R. C IV

. P. 56(a); see Ce lo t ex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The granting of sua sponte summary judgme n t without notice is subject to harmless error review. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit , 28 F

. 3 d 1 3 8 8, 1398 (5th Cir. 1994). Failure to provide
proper notice is harmless error “if the nonmovant has no additional evidence or if all of the nonmovant’s additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of material fact.” Id

. A. I n their first issue on appeal, Plaintiffs assert that the district court erroneously concluded that the MCA exemption applies to their overtime claims because C2C is not a motor private carrier.

Four chip per s and the tw o for em en – Pedr o B u e n dia, Ge rar do Rami rez, He cto r 5 Albanil, Mar tin Albanil, A bel Rami rez, and Marti n Rivas – st ate that they are not app ealing the sum mar y judgm ent on the mi nim um- wa ge clai ms beca use thei r wa ges excee ded the mi nim um wa ge e ven w hen thei r allege d uncom pens atedt im e i s cons ide red

. 6 Case: 10-20424 Document: 00511631302 Page: 6 Date Filed: 10/13/2011No. 10-20424

Section 207 of the FLSA mandates that workers receive overtime pay, subject to certain exemptions. One s uch exe m ption is the MCA exemption, found in section 213(b)(1) of the FLSA. S e ctio n 213(b)(1) provides that “[t]he provisions of section 207 of this title shall not apply with respect to– (1) any employee with

r espect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49 [of the MCA].” 29 U.S.C. § 213(b)(1). According to the Department of Labor (“DOL”) regulations enforcing the FLSA, the application of the MCA exemption to an employee “depends both on the class to which his employer belongs and on the class of work involved in the employee’s job.” Songe r v . D i llon Resources, Inc. , 618 F.3d 467, 472 (5th Cir. 2010) (quoting 29 C.F.R. § 7 8 2

. 2(a)). The DOL regulations provide that “[t]he
power of the Secretary of Tr a n s portation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who: (1) Are employ e d b y c arriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under sect ion 204 of the Motor Carrier Act

. . ., and (2) engage in activities of a character directly affecting the safety of operation of mo t or vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act.” 29 C.F.R. § 782.2(a). Though both of these requirements were in dispute in the 6 district court, on appeal Plaintiffs challenge only whether C2C is a motor private carrier subject to the Secretary of Transportation’s jurisdiction. Further, due to further concessions by Plaintiffs on appeal, resolution of this issue depends only

“The Sec ret ary . . . needon ly p os se sst he pow er to regula te the em plo yees atis sue ; 6 it need not act ually exerc ise that pow er for the [M CA] exem ption to app ly. ” Songer , 618 F.3d at 472 (quo ting Barefoo t v

. Mi d-A me ri caDai rym en, Inc ., No. 93- 1684, 1994 WL 57686, at *2 (5t h Cir. Feb. 18, 1994) (p er curiam) (c itin g Lev ins on v. Spec tor Mo tor Serv ., 330 U. S. 649, 678 (194 7)) ). 7 Case: 10-20424 Document: 00511631302 Page: 7 Date Filed: 10/13/2011No. 10-20424

on whether the weight of the picku p t r u ck and the trailer can be combined to determine whether C2C’s “rig” is a commercial motor vehicle. In making this determination, the Court turns to the statute and applicable regulations. Though the language of section 213(b)(1) did not change during the time period relevant to this litigation, the scope of the Secretary of Transportation’s authority (and thus the scope o f t h e MCA exemption under § 213(b)(1)) was amended during that time. Section 31502 provi d e s t hat “[t]he Secretary of Tr an s p ort atio n m ay p r e s crib e r e quir e m e nts for– (1) qualificatio n s an d m axi m u m hours of service of emplo y e e s of, and safety of operation and equipment of, a motor carrier ; and (2) qualifications and maximum hours of service of employees of, and s t a n d a r d s of equipment of, a motor private carrier , when needed to promote safety of operation.” 49 U.S.C. § 31502(b) (emphasis added). The terms “motor carrier”and “motor private carrier” have the same meanings given those terms in section 13102. 49 U.S.C. § 31501 (2). Before August 10, 2005 (and, as will be discussed, after June 6 , 2 0 08), section 13102 d e f

i n ed “motor carrier” as “a person providing motor vehicle transportation for compensation” and “motor private carrier” as “a person, other than a motor carrier, transportin g property by motor vehicle when– (A) the transportation is as provided in section 13501 of this title; (B) the person is the
owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enter p r i s e . ” 49 U.S.C. § 13102(14), (15). The term “motor vehicle” means “a vehicle, machine, tractor, trailer, or semitr a iler propelled or drawn by mechanical p o w e r a nd used on a highway in transportation, or a combination determined by the Secretary, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger transportation sim i lar to street-railway service.” 49 U.S.C. § 13102(16). Thus, before August 10, 2005,

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the MCA gave the Secretary of Transportation regulatory authority over motor carriers and motor private carriers utilizing certain motor vehicles in interstate
commerce, regardless of the vehicle’s weight. As a result, many employees fell within the MCA exemption to the FLSA, and employers were not required to pay them overtime compensation. O n August 10, 2005, the Safe, Accountable, Flexible, Efficien t Tr a n s p o rtation Equity Act (“SAFETEA-LU”) went into effect. Pub. L. No. 109-59, 119 Stat. 1144. Section 4142 of SAFETEA-LU changed the definitions of “motor carrier” and “private motor carrier” in section 13102 by replacing the term “motor vehicle” with “commercial motor vehicle (as defined in [49 U.S.C.] section 31132)” in each definition. Section 31132 states th a t “(1) ‘commercial 7 motor vehicle’ means a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle-- (A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater ; (B) is designed or used to transport m o r e t han 8 8
passengers (incl u di n g t h e driver) for compensation; (C) is designed or used to t r a n s p o rt more than 15 passengers, including the driver, and is not used t o transport passengers for compensation; or (D) is used in tran s p o r t i ng [hazardous] material

. . . .” 49 U.S.C. § 31132. Thus, this amendment restricted the Secretary’s regulatory authority – and thereby also narrowed the MCA exemption to the FLSA’s overtime requirements – to only those motor carriers

Pub. L. No. 109- 59, § 4142( a), 119 Sta t. 1144, 1747 (“ DEFIN ITIONS RELATING TO 7 MO TOR CARRIERS.—Pa ragra phs ( 6), (7) , (12) , and (13) of s ect ion 13102 of tit le 49, Unit ed Sta tes Code , are each ame nded by st rik ing ‘m oto r vehicl e’ and ins ert ing ‘co mm erc ial mo tor vehicl e ( as def

inedins ect ion 31132) ’. ”)

. This has been the def

init ion of “co mm erc ial mo tor vehicl e” sin ce 1998. The language 8 “or gros s vehicl e we ight” and “w hiche ver is great er” wa s add ed in June 1 9 9 8 a s p art of the Trans por tat ion Equity Act for the 21s t Centur y (“ TEA-21" ), a 500- page “[ a] c t t o autho rize fund s for Fede ral- aid highw ays, highw ay saf ety pr ogram s, and tra nsi t pr ogram s, and for othe r pur pos es .” SeePub. L. N o. 105- 178, 112 S tat

. 107, 404 , § 4 008( a). 9 Case: 10-20424 Document: 00511631302 Page: 9 Date Filed: 10/13/2011No. 10-20424

and private motor carriers who operated “commercial motor vehicles (as defined in section 31132).” On J u n e 6, 2008, Congress passed the SAFETEA–LU Technical Corrections Act (“TCA”). Pub. L. No. 110-244, 122 Stat. 1572. Section 305 of the TCA replaced “commercial motor vehicle” in the definitions of motor carrier and motor private carrier with “motor vehicle,” essentially returning the Secretary of Transportation’s authority to its pre-SAFETEA-LU sco p e. District courts 9 have concluded that the TCA amendment was not retroactive, and no party in this case argues that the TCA amendment is retroactive. Thus, for the time period between August 10, 2005 and June 6, 2008, many employees who had been exempt from the FLSA’s overtime provisions under the MCA exemption were no longer exempt. However, the TCA included a safe harbor period of one y e a r , f r o m August 10, 2005 to August 9, 2006, for any failure by an employer to pay overtime compensation pursuant to the FLSA by employers who did not have actual knowledge that the scope o f t he exemption had changed when the SAFETEA–LU was enacted in 2005. 122 Stat. 1572, 1620 § 306(b)(1). Section 306 of the T C A a l s o addressed application of the FLSA’s overtime requirements going forward: SEC. 306. APPLICABILITY OF FAIR LABOR STANDARDS ACT REQUIREMENTS AND LIMITATION ON LIABILITY. (a) APPLICAB I LITY FOLLOWING THIS ACT.–Beginning on the date of enactment of this Act, section 7 of the Fair Labor Standards Act of 1938 (29 U.S. C

. 207) shall apply to a covered employee notwithstanding section 13(b)(1) of that Act (29 U.S.C. 213(b)(1)).

. . . .

Pub. L. No. 110- 244, § 305(c) , 122 Sta t. 1572, 1620 (“ DEFIN ITIONS RELATING TO 9 MO TOR CARRIERS.—Pa ragra phs ( 6)( B), ( 7)( B), ( 14), and( 15) of s ect ion 13102 of suc h t itle are each ame nded by st rik ing ‘co mm erc ial mo tor vehicl e (as def ined in se cti on 31132) ’ and ins ert ing ‘ mo torvehi cle’ .” ). 10 Case: 10-20424 Document: 00511631302 Page: 10 Date Filed: 10/13/2011No. 10-20424

(c) CO V ERED EMPLOYEE DEFINED.–In this section, the term “covered employee” means an individual– (1) who is employed by a motor carrier or motor private carrier (as such terms are defined by sect i on 13102 of title 49, United States Code, as amended by section 305); (2) whose work, in whole or in part, is defined– (A) as that of a driver, driver's helper, l o ader, or mechanic; and (B) as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in t ransportation on public highways in interstate or foreign commerce, except vehicles– (i) designed or u s e d to transport more than 8 p a s s e n g e r s ( i n c l u d i n g t h e d r i v e r ) fo r compensation; (ii) designed or used to transport more than 15 passengers (including the driver) and not used to transport passengers for compensation; or (iii) used in transporting material f o u n d by the Secretary of Transportation to be h a zardous under sectio n 5103 of title 49, United States Code, a nd transported in a quantity requiring placarding und er regulations prescribed by the S e c retary under section 5103 of title 49, Uni t e d States Code; and (3) who performs duties on motor vehicles weighing 10,000 pounds or less.
Pub. L. No. 110-244, §§ 305-06, 122 Stat. 1572, 1620-21 (effective June 6, 2008).
Plaintiff s f i l ed this lawsuit on February 11, 2008. Because they allege willful violations of the FLSA, the potential limitations period extends back to February 11, 2005. Throughout this t i m e p e r i od, and despite the various amendments to the MCA, Congress did not amend the definition of “commercial

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motor vehicle,” and the DOT ha d i n p l ace an existing regulation defining “commercial motor vehicle.” It provides: Commercial motor vehicle means any self-propelled or towed motor vehicle u s e d on a highway in interstate commerce to transport passengers or property when the vehicle– (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or (2) Is designed or used to tran s p o rt more than 8 passengers (including the driver) for compensation; or (3) Is designed or us e d to transport more than 15 passengers, including the driver, and is not used to transport p assengers for compensation; or (4) Is used in transporting [hazardous] material . . . . 49 C.F.R. § 390.5

. Though this definition generally tracks the statutory 10 definit i o n o f commercial motor vehicle, it adds the terms “gross combination weight rating” and “gross combination weight.” “Gross vehicle weight rating” (“GVWR”) is defined in DOT regulations as “the value specified by the manufacturer as the loaded weight of a single motor vehicle.” 49 C.F.R. § 390.5. “Gross combination weight rating (GCWR) means the value specified by the manufacturer as the loaded weight of a combination (articulated) m otor vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total weight of the towed unit and any load thereon.” Id. “Gross vehicle

This regula tory def

init ion has been in p l a c e sin ce 1999. The Fede ral Hi ghwa y 1 0 Adm inis tra tio n (“ FHWA”) iss ued a revis ed regula tory def init ion of “co mmercial motor vehicle ,” eff ect ive Sep tem ber 3, 199 9, in res pons e t o the 1998 TEA-21 am endm ent tothe def init ion of
com me rci al mo torvehi cle. 64 Fe d. Reg. 485 10-0 1, 48515. 12 Case: 10-20424 Document: 00511631302 Page: 12 Date Filed: 10/13/2011No. 10-20424

weight” (“GVW”) and “gross combination weight” are not defined in the statute or the regulations. 1 1 On appeal, Plaintiffs’ main contention is that the DOT regulation defining “commercial motor vehicle” shoul d not be afforded Chevron deference because the regulation, which allows combinations of vehicles in determining GVWR or GVW, contravenes the plain statutory text, which does not allow combinations of vehicles. However, Plaintiffs did not raise their Chevron argument in the district court either in their s u m m a ry-judgment briefing or in their Motion to Alter or Amend Judgment

. T hus, they have waived this argument. See Commodity Futures Trading Comm’n v. Erskine , 512 F

. 3d 309, 314 (6th Cir. 2008) (“[T]he CFTC waived any reliance on Chevron deference by failing to raise it to the district c o u r t

. ” ) ; see also Faris v. Williams WPC-I, Inc. , 322 F.3d 316, 319 n.2 (5th Cir. 2003) (“Defendants also argue that, if the regulation extends to the waiver at issue here, it is invalid under Chevron U.S.A. Inc. v. N.R.D.C. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This argument wa s not presented to nor passed on by the district court, and therefore may not be considered on appeal.”). Even if Plaintiffs had not waived this argument, however, it lacks merit. Plaintiffs contend that the statute is unambiguous, that Chevron deference applies only in the case of ambiguous statutes, and that the DOT regulation is 1 2

The FHWA noti ce of inte rim fina l rule st ated that “Se cti on 4008 [of TEA-21] als o 1 1 changedt he we ight thr es holdint he CMV def inition by ad ding ‘gros s vehicl e w eight’( GVW) to the pr evious ‘gros s vehicl e we ight rat ing’ (GVWR). The agency may now exerc ise juris dic tio n bas ed on the GVW or GVWR, wh iche ver is great er. A v e h i c le wi th a GVWR of 9,50 0 poun ds that wa s load ed to 10,5 0 0 p o u nds GVW wo uld ther efo re be subject to the FM C S Rs if it wa s ope rat ing in inte rs tat e com me rce .” 64 Fed. Reg. 48510- 48511. T h i s indi cat es t hat “gro ss vehi cle we ight”m eans t he act ual load ed we ight of a veh icle

.

Ma rtinez v. Muk as ey , 519 F.3d 532, 542- 43 (5t h Cir. 2008) (“Und er Chev ron , we def er 1 2 t o agency inte rp ret atio ns of amb iguous st atut es . . . . De fer ence of this so rt how ever, is not ow ed auto mat ical ly to all agency inte rp ret atio ns of st atut ory pr ovis ions ; again, ther e mus t be amb iguity. ”)

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therefore not ent i t l e d to any deference. Because the statute is unambiguous, Plaintiffs argue, the Court should ap p l y the statute’s plain language and hold that either the truck or the trailer alone must weigh over 10,000 pounds for the vehicle to qualify as a commercial motor vehicle. B e cause the statute refers to a “self-propelled or towed vehicle” that weighs over 10,000 pounds, Plaint i f f s assume that a self-propelled vehicle can

mea n o n l y t h e truck excluding any towed vehicle. However, both a truck without a towed vehicle and a truck with a towed vehicle can be a “self-propelled vehicle.” As Plaintiffs themselves emphasize, the statute reco gni z e s that a “motor vehicle” can be “a veh i c l e, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transp o rtation, or a combination determined by the Secretary.” 49 U.S.C. § 1 3 1 0 2 ( 1 6). Thus, the use of the disjunctive “or” between self-propelled and towed does not necessitate Plaintiffs’ conclusion t hat a self-propelled vehicle excludes any towed portion of that same vehicle, even thou gh t h e definition of commercial motor vehicl e do e s not it self include the “or a combination” language. Rather, the sta t ute can be read to mean that a commercial motor vehicle is a self-propelled vehicle (which is a vehicle propelled by its own power, along with
any towed vehicle drawn by it, if any) or a towed vehicle with a GVWR or GVW in excess of 10,000 pounds. See Glanville v. Dupar, Inc. , Civ. A. No. H-08-2537, 2009 WL 3255292, at *6 (S.D. Tex. Sept. 25, 2009) (concluding that the statutory definition of commercial motor vehicle “does not directly and unamb i guously speak to the combination of a truck towing an attached t r ailer” but that “[t]he stat u t e clearly contemplates a combination of a self-propelled vehicle with a towed attachment that could not travel down the highway by itself”). There is nothing in the stat u t o ry language that clearly excludes a combination vehicle from being a “self-propelled vehicle.” Plaintiffs argue that Congress’s choice of GVWR and GVW indicates that only the weight of a single

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vehicle – as opposed to a combination vehicle – can be considered because these

are measurements of th e w e i ght of a single vehicle. All parties agree that GVWR is defined by the regulations as “the value specified by the manufacturer

as the loaded weight of a single motor vehicle.” 49 C.F.R. § 390.5

. On appeal, Plaintiffs assert that GVW is “the maximu m p a yload that the vehicle was designed to carry,” or “[t]he maximum loaded weight f o r wh i c h a single automobile is designed, as specified by the manufacturer.” Id

. However, this is not the same definition of GVW that Plaintiffs urged in the district court. They asserted in the district court that, “although not expressly defined, it is accepted tha t G r oss Vehicle Weight (‘GVW’) means the actual weight of a commercial motor vehicle on a given day” (in their Motion for Summary Judgment) and that it means “the actual weight of a vehicle, plus the actual weight of c a r go and passengers, on a given day” (in their Response to Defendants’ Motion for Summary Judgment). Nothing about these definitions indicates that one can 1 3 consider only the truck without the trailer in determining GVW. Citing a single district court case, Plaintiffs a ssert that “[c]ourts have 1 4 recognized that the gross vehic l e weight rating ‘is only appropriate for determining the weight of a vehicle that is not towing a trailer.’” Therefore, they assert, “the gross vehicle weight rating and gross vehicle weight, by definition,

mean the weight of the truck or trailer by i t s e l f

. ” E ven if it is true that the GVWR can only apply to a vehicle not towing a trailer, which we do not decide,

Plaint iffs do not ack now led ge or dis cus s the d i f f e r e n c e betw een thei r pr opo se d 1 3 def init ions of GVW in the dis tri ct cour t and on app eal. Nor do they dis cus s how thei r cur rent def init ion of GVW (“the maxim um load ed w e i gh t f o r wh ich a sin gle auto mo bile is des igned , as sp ecif ied by the man ufac tur er” ) dif fer s func tio nally fr om the def init ion of GVWR (“the value sp ecif ied by the manufa ctu rer as the load ed we ight of a sin gle mo tor vehicl e”)

. As note d, the ter m “or gros s vehicl e we ight” wa s add ed to the def init ion of com me rci al mo tor vehicl e in 1998, and thus Congres s mus t have inte nded for it to have a me aning d i f f e r e n t f r om the exis ting ter m “gro ss vehi cle we ight rat ing.”

Glanv il le , 2009 WL 3 255292, at*5

. 1 4 15 Case: 10-20424 Document: 00511631302 Page: 15 Date Filed: 10/13/2011No. 10-20424

P l a i n t i f f s fail to explain why the same is necessarily true for the GVW, other than to note that, when a truck with a trailer is considered, other measures

– gross combination weight rating and gross combination w ei ght – are used. Thus, they assert that the DOT recognized that GVWR and GVW are measures for a single vehicle because it had to include t h e a d ditional measurements to determine the combined weight of the truck a n d t r a i l er. By choosing weight measurements that were limited to single vehicles, and omitting measurements that included combined vehicles, Plaintiffs argue, C o n gr e ss unambiguously intended that either the truck or trailer by itself had to exceed 10,000 pounds. The Cou r t r ejects Plaintiffs’ argument that GVW can include only the weight of the truck without the trailer. A separate provision of the U n ited States Code in the title governing highways uses GVW when expressly referring to combination vehicle s : 23 U.S.C. §127(d)(4) states that the term “longer combination vehicle” means “any combination of a truck tractor and 2 or more trailers or semitrailers which operates on the Interstate System at a gross vehicle weight gr e at er th an 8 0 , 0 0 0 p o unds.” And, as noted, Plaintiffs themselves offer a different definition of GVW on appeal than they did in the district court, and their asserted definition in the district court – actual vehicle weight – does not exclude combination vehicles. Thus, Plaintiffs f ail to support their argument that GVW can only apply to a truck without a trailer. If the GVW is the actual weight of a self-propelled vehicle (which can be a single or combination vehicle), then adding the actual weight of the truck and the actual weight of the trailer,

as the district court did, is an appropriate method of determining the GVW. The regulation simply include s t h e term “gross combination weight” for this calculation. Plaintiffs further ass e rt that Defendants offer no explanation of why Congress defined a commercial motor vehicle as a “self-propelled or t o w ed” vehicle that weighs over 10,000 pounds if it wanted the weight of both the self16 Case: 10-20424 Document: 00511631302 Page: 16 Date Filed: 10/13/2011No. 10-20424

propelled and towed vehicles to be c o u n t e d , in which case it would have used “and.” But this ar gu m e n t overlooks the rest of the statutory definition of commercial motor vehicle and the role of the Secretary of Trans p o r tation in prescribing safety standards. A commercial motor vehicle is a self-propelled or towed vehicle used on a highway in interstate commerce to transport passengers

or property w h e n th e v e hicle meets one of four separate criteria. The first criteria is that it have a GVWR or GVW of at least 10,00 1 p o u n d s . The other criteria are: (1) that it is designed or used to transport more than 8 passengers (including the driver) f o r c o m p ensation; (2) that it is designed or used to t r ansport more than 15 passengers, including the driver, and is not u s e d t o transport passengers for co m p e n sation; or (3) that it is used in transporting hazardous material. The disjunctive language “self-propelled or towed vehicle” applies to all four criteria. Congress has mand a t e d t h a t “the Secretary of Transportation shall prescribe regulations on commercial motor vehicle safety” and that “[t]he regulations shall prescribe minimum safety standards for commercial motor vehicles.” 49 U.S.C. § 31136(a). Among other things, the regulations shall ensure that commercial motor vehicles are maintained, equipped, loaded, and operated safely. I d

. Thus, the disjunctive “or towed vehicle” clarifies and ensures that t h e Secretary maintains jurisdiction over trailers, semitrailers, and other towed vehicles that transport hazardous material or exceed 10,000 pounds, and that these types of towed vehicles are subject to the Federal Motor Carrier Safety Regulations. F u rther, the regulation comports with the purpose of the statute a s a whole. As the district court in this case recognized, the purpose of defining commercial motor vehicles to include large/h eavy vehicles, certain passenger vehicles, and vehicles containing hazardous materials is to bring these vehicles within the jurisdiction of the Secretary of T r a nsportation and the applicable safety regulations. Plaintiffs’ construction results in coverage for a pickup truck

17 Case: 10-20424 Document: 00511631302 Page: 17 Date Filed: 10/13/2011No. 10-20424

weighing 10,001 pounds or a trailer weighing 10,001 pounds, but does not result in coverage for a pickup truck weighing 1 0 , 0 0 0 p ounds and towing a trailer weighing 10,000 pounds, for a combined weight of 20,000 pounds, even though such a vehicle implicates the same, if not greater, safety concerns. The TCA also indicates that Con gr e s s w as concerned with total vehicle weights and did not intend to exclude combination vehicles from the definition of commercial motor vehicle. As noted, the TCA defines a “covered employee” for
purposes of the FLSA as an individual (1) who is employed by a motor carrier or motor private carrier; (2) whose work is defined, in whole or in part, as driver, driver’s helper, loader, or mechanic and “as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in t r ansportation on public highways in interstate or foreign commerce . . . .”; and (3) who performs duties

on motor v e h i c l e s weighing 10,000 pounds or less. Thus, this language references the overal l weight of “motor vehicles,” such that certain employees who work on motor vehicles weighing 10,001 or more pounds ( i.e

. , commercial motor vehicles) are under the jurisdiction of the Secretary of Transportation. Last, as n o t e d ab o v e , th e regulatory construction of commercial motor vehicle was already in place when SAFETEA-LU and the TCA were enacted, but Congress did n ot change the definition of “commercial motor vehicle” in the SAFETEA-LU or the TCA or indicate that it w a s r ejecting the existing regulatory definition. Thus, the district court correctly inferred that Congress intended the existing regulatory construction to continue to apply. In sum, the statute is ambiguous concerning whether a “self-propel led vehicle” with a GVW in excess of 10,000 pounds can include both a truck and an attached trailer or other combination vehicles. S u c h a construction is not precluded b y th e s t atutory l an gu a ge, however, and is consistent with its purpose. Thus, section 390.5’s definition of commercial motor vehicle comports with the statute and is reasonable. Accordingly, Plaintiffs’ argument that the regulation

18 Case: 10-20424 Document: 00511631302 Page: 18 Date Filed: 10/13/2011No. 10-20424

is not entitled to Chevron deference lacks merit. Further, Plaintiffs fail to show that the district court’s application of the regulation was erroneous. On appeal, Plaintiffs essentially concede that “when combined – the trucks and trailers weighed over 10,000 pounds.” The district court’s grant of summary judgment on Plaintiffs’ overtime claim is therefore affirmed. B. In their seco nd issue on appeal, certain Plaintiffs argue that the district court erred in granting summary judgment sua sponte on their minimum-wage claims, and that the error was harmful because their evidence raises a material fact issue. Plaintiffs filed a “M otion for Partial Summary Judgment on Liability” regarding their minimum-wage claims. Though the title of the motion indicated that Plaintiffs were seeking summary judgment “on liability,” it was relatively clear that Plaintiffs were seeking summary judgment only on certain is s u e s related to their minimum-wage claims. Specifically, Plaintiffs stated that they were seeking “an order recognizing that Defendants failed to pay Plaintiffs for all compensable time under the FLSA” and that t h e ir motion presented four main issues: whether time spent receiving instructions and l o a di n g tools was compensable, whether time spent traveling was compensable, whether T a yl o r

was individually liable, and whether Defendants violated the FLSA and Texas Labor Code by deducting $28 per pay period for workers’ compensation insurance. Plaintiffs stated that they were not moving for summary judgment

on damages and would “present their testimony regarding damages at the time of trial.” In their c o n c lusion, Plaintiffs expressly sought a summary-judgment ruling tha t : ( 1 ) “ a ll of the time chipper- and crew foremen-Plaintiffs spent

a t t e nding mandatory company meetings is compensable time”; (2) “all of th e time chipper- and crew foremen-Plaintiffs spent attending training sessions

19 Case: 10-20424 Document: 00511631302 Page: 19 Date Filed: 10/13/2011No. 10-20424

when first hired i s compensable time”; (3) “all of the time chipper- and crew foremen-Plaintiffs spent at Defendant s ’ Pasadena of fice receiving instructions and performing pre-trip work before departing for chipping sites is compensable time”; (4) “all of the time chipper- and crew foremen-Plaintiffs s p ent traveling from the Pasadena office to their first job site, between job sites and the return trip back to Pasadena is compensable time”; (5) Defendant Taylor is an employer in his individual capacity; and (6) Defendant s vi o l a t e d the FLSA and Texas Labor Code § 415

. 006 by deducting $28 per pay period from each Plaintiff’s paycheck to cover C2C’s workers’ compensation premiums. Rather than responding to the specific issues raised by Plaintiffs’ motion, such as whether the sp e cif i e d activities were compensable, Defendants’ response contended that “Plaintiffs have failed to prove ad e quately that Defendants violated the minimum wage provisions of the FLSA.” Defendants requested that the district court deny Plaintiffs’ motion. Defendants stated, “Plaintiffs’ argument is inadequa te primarily because other than baldly asserting that minimum wage violations have occurred, Plaintiffs have done nothing else to prove these violations to this Court. The FLSA requires more of Plaintiffs than

an inferential assertion th a t because certain hours were unpaid, a minimum wage violation therefore occurred.” Defendants argued that Plaintiffs failed to meet their initial burden of showing that their actual compens a ti o n w a s less than the minimum wage , t h a t P l aintiffs had not proven that their weekly pay divided by the number of hours worked in that week yielded an hourly rate for the whole week that was lower than the statutory minimum wage. Defendants

s t a t ed that “Plaintiffs have not carried their burden, and their claims for minimum wage must be denied at the summary judgment level.” Plaintiffs fil e d a r ep ly , in which they stated,“Notwithstanding Defendants’ efforts to obfuscate, Plaintiffs do not move for summary judgment on their minimum wage claims.” Plaintiffs repeated that they only sought an order on

20 Case: 10-20424 Document: 00511631302 Page: 20 Date Filed: 10/13/2011No. 10-20424

specific issues related to whether certain activiti e s were compensable, and asserted that “[a] ruling on the com p e n s ab l e time issue will allow a trial on Plaintiffs’ minimum wage and overtime pay c l aims to proceed more efficiently and expediently by eliminating issues for which there is no legitimate dispute.” Plaintiffs further as s e r ted that “Defendants have tacitly conceded [that] the Court should declare that these activities are compensable as a matter of law” and “[r]ather than addr e s s w h e t her pre-trip work, travel time, and other time is compensable, Defendants attempt to sidestep the issue.” Plaintiffs stated, “Defendants simply miss the mark when they argue that Plaintiffs must prove

c o m p e n s ab l e time violations ‘with definite and certain evidence’ of ho ur s work e d

.

. . . The issue presently before the Court is not the number of hours worked, but the compensable nature of the time.” Plaintif f s th en acknowledged that their burden was ultimately to prove that they had performed work for which they were improperly compensated and to produce sufficient evidence to show the amount and extent of the work “as a matter of a just and reasonable inference,” but s t a t e d that “Plaintiffs will discharge their burden under the lawful standard when the time is appropriate.” Plaintiffs concluded, “[a]t this time, however, it is n o t necessary and would be premature because Plaintiffs simply did not move for summary judgment on their minimum wage claims.” Despite the fact that Plaintiffs made clear that they thought Defendants had not joined the issues presented in their motion, that they had not moved for
summary judgment on their minimum-wage claims as a whole, and that it would be p r e m a t ure for them to have to come forward with their evidence of their actual wages received, the district court concluded that Plaintiffs were on notice of a potential summary judgment on overall liability because Defendants asked “in their response to plaintiffs’ motion for summary judgment that the court deny these claims as a matter of law.” The Court concludes that this was error,

21 Case: 10-20424 Document: 00511631302 Page: 21 Date Filed: 10/13/2011No. 10-20424

and that Plaintiffs were not adequately placed on notice of a potential summary judgment on their minimum-wage claims. It is true that Defendants’ respon s e s t a t e d at one point that “Plaintiffs have not carried their burden, and t h e i r claims for minimum wage must be denied at the summary judgment level.” But this was not a clear request for the district court to grant summary judgment in Defendants’ favor. And elsewhere in their response, including on the first page and in the conclusion, Defendants stated only that Plaintiffs had not proved their enti t l e m e n t to summary judgment, and asked that the district court deny Plaintiffs’ motion. Thus, it was

n o t c l e a r that Defendants were asking the district court to grant summary judgm e nt in their favor on the minimum-wage claims. Moreover, Plaintiffs’
response shows that Plaintiffs did not think that Defendants were moving for

s u m m a ry judgment such that Plaintiffs were required to respond with the i r evidence; rather, they reasonably construed Defendants’ response as simply asserti n g t h a t Plaintiffs were not entitled to summary judgment on liability because they had not offered evidence to support minimum-wage violations. Given these facts, the district court shou l d h av e taken the precaution of notifying Plaintiffs that it was considering summary judgment bas e d on Plaintiffs’ failure to establi s h that their effective hourly rates were below the minimum wage. See Davis v. Howard , 5 6 1 F

. 2 d 5 65, 571 (5th Cir. 1977) (“Because a litigant ‘cannot read over t h e j u d ge’s shoulder, or penetrate his memory,’ the nonmoving party must also have some notice of what ‘contention’

or issue is placing his case in jeopardy.”) (quoting Soley v. Star & Herald Co. , 390 F.2d 364, 369-70 (5th Cir. 1968)). Instead, the district court granted summary judgment without adequate notice to Plaintiffs. All but six of the Plaintiffs filed a Motion to Alter or Amend the Judgment, arguing that the district court erroneously granted summary judgment without notice, and submitting evidence in support of their claims. Plaintiffs asserted

22 Case: 10-20424 Document: 00511631302 Page: 22 Date Filed: 10/13/2011No. 10-20424

that they had no notice that the district court w a s considering summary judgment on the entire case, and that the summary j u d g m e nt was harmful because Plaintiffs could adduce e vi d ence supporting their minimum wage claims, as demonstrated by declarations of six Plaintiffs attached to the motion. Plaintiffs acknowledged that their motion was misnamed as a motion for partial
summary judgment on liability, as they merely sought an order on specific issues relating to t h e ir minimum-wage claims to simplify the presentation of their claims for trial. Plaintiffs noted that Defendants did not ask the Court to grant summary judgment in thei r favor in the response brief, but simply asked the district court to deny Plaintiffs’ motion. Thus, Plaintiffs stated, they did not present evidence to establish a prima facie case of minimum-wa ge viol ations, nor

were they on notice that the court was considering dismissal of the entire case. Plaintiffs stated that, had they been on notice, they would have presented their evidence. The district court summarily denied Plaintiffs’ motion. On appeal, Plaintiffs make essentially the same arguments they made in their motion to alter or amend. Defendants argue that they did ask for summary judgment as a matter of law in their response brief and requested that Plaintiffs

come forward with proof. They argue that this, and the fact that Plaintiffs filed a motion for summary judgment, put Plaintiffs on notice to come forward with their evidence in their reply brief, but they chose not to. Defendants rely on two circuit court cases – Gibson v. City of Wilmington , 355 F.3d 215, 223-25 (3rd Cir. 2004) and Jones v. Union Pac. R.R. Co. , 302 F.3d 735, 740-41 (7th Cir. 2002) – to support their position t h a t t h e district court appropriately granted summary judgment. In Gibson , the Third Circuit Court of Appeals recognized an exception to the notice requirement for sua sponte summary judgment when three c o n di t i o ns are met: “(1) the point at issue is purely legal; (2) the record was fully developed, and (3) the failure to give notice does no t p r ejudice the party.” Gibson , 355 F.3d at 219. Plaintiff Gibson had

23 Case: 10-20424 Document: 00511631302 Page: 23 Date Filed: 10/13/2011No. 10-20424

moved for summary judgment on the issue of wheth er the municipal policy under which he was terminated was overb r o a d a n d vague. The district court denied the motion, stating that there were genuine issues of material fact. However, o n the morning of trial, the district judge invited counsel into chambers and “announced that he was granting summary judgment sua sponte to [defendant] on the issue of overbreadth.” T h e T h ird Circuit noted that, becaus e di s c o very was closed, “full opportunity for discovery had already obtained” and “[i]ndeed Gibson had every opportunity to present his position to the Court, and it was he who moved for summary judgment on the issu e s of vagueness and overbreadth.” Id. at 223. The c ourt found convincing the defendant’s argument that, “in moving for su m mary judgment, Gibson had clearly marshaled enough evidence to support his case and was therefore not prejudiced by the lack of notice in the sua sponte grant of summary judgment.” Id. The Gibson court noted that the First Circuit has defined “notice” to mean “that the targeted party ‘had reason to believe the court might reach the issue and received a fair opportunity to put its best foot forward.’” Id. at 223-24 (citing Leyva v. On the Beach, Inc. , 171 F.3d 717, 720 (1st Cir. 1999)). “ G iven that it was Gibson who moved for summary judgment on the issues of vagueness and overbreadth,” the Third Circuit reasoned, “he certainly had the opportunity to put his ‘best foot forward.’” Gibson , 355 F.3d at 224. The court further noted t h a t “ o t her courts have taken the position that when a party has had the opportunity to present all the evidence that would be used to oppose a motion for
summary judgment, the fact that the actual notice was not given becomes irrelevant if the party was not prejudiced by that lack of notice.” Id. The court also positively cited to cas e s h olding that a district court’s sua sponte grant of
summary judgment on purely legal que s t ions based on complete evidentiary records was appropriate. The C o u rt then held that the presence of all three

24 Case: 10-20424 Document: 00511631302 Page: 24 Date Filed: 10/13/2011No. 10-20424

factors – a fully developed record, the lack of prejudice, and a decision based on

a purely l e g a l i s sue – would justify sua sponte summary judgment without notice, but it did not decide if fewer than all three would suffice. The court cautioned, however, tha t “the sua sponte grant of summary judgment, without giving notice to the parties, is not the preferred method by which to dispose of claims. This is so not only because district courts run the risk of unduly prejudicing the parties, but also because such grants of summary judgment can have serious, if unintended, consequences.” Id. at 224-25. Thus, “it is preferable for the District Court to giv e n o ti c e to the parties when it is

c o n sidering a sua sponte grant of summary judgment because of the potenti a l consequences such a grant may engender.” Id. at 225. In Jones v. Union Pacific R. Co. , 3 0 2 F.2d 735 (7th Cir. 2002), the court noted that though “granting summary judgment sua sponte is a ‘ h a z ardous’ procedure which ‘warrants special caution’ and is often unnecessary, it remains permissible.” Id. at 740. It held that “[w]hen there are no issues of material fact in dispute, a district judge may grant summary judgment in f av o r o f t h e nonmoving party or may grant summary judgment even though no party has moved for sum m a ry judgment

. . . as long as the losing party is given notice and an opportunity to come forward with its evidence.” Id. (citations omitted). In Jones , the court found that the plaintiff was not deprived of the opportunity to present evidence when he “had moved f or summary judgment and marshaled all the favorable evidence available in support of that motion” and “when [the plaintiff] moved for summary judgment both part i e s w ere on notice that summary judgment was under active consideration.” Id. (emphasis in original). Further, the court held, “the defendant’s response to the plaintiff’s motion for summary judgment put [the p l a i n t i f f ] on further notice by stating that the court should consider the response ‘in the nature of a cross-motion for summary judgment.” Id. The plaintiff ther e fore had an opportunity to respond to the defendant’s

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cross-motion statement in his reply brief, but chose not to do so, and raised no objection to the defendant’s request for summary judgment. Id. B o t h these cases are distinguishable on the facts. Despite so m e 1 5 ambiguity in Plaintiffs’ motion, it was ultimately clear that Plaint i f f s did not

move for summary judgment as to overall li ab i l it y on their minimum-wage claims, but only sought a ruling on specific issues related to their claims (primarily the compensability of certain time). Thus, thi s i s n o t a situation in which a plaintiff moves for summary judgment and puts forth all its evidence on the issue on which the court then grants summary judgment sua sponte in favor of a non-movant defendant. See Kannaday v. City of Kiowa , 590 F.3d 1161, 1171 (10th Cir. 2010) (“When a district court’s sua sponte determination is based on issues identical to those raised by a mo vi n g party, the risk of prejudice is significantly lowered becaus e ‘ t h e judge already is engaged in determining whether a genuine issue of material fact exists and the parties have been given

an opportunity to present evidence designed either to support or r e f u t e the request for the entry of judgment.”). Instead, it was clear that Plaintiffs had not put forth their summ a ry -j u dgment evidence on the issue on which the district court granted summary judgment, and did not realize the need to do so. Defendants did not clearly and expressly move for summary judgment in their favor, and Plaintiffs objected to the fact that Defendants were complaining about a lack of evidence on overall liability in response to Plaintiffs’ motion on di f ferent, limited issues. Thus, Plaintiffs were not on notice of a pendin g

De fen dant s a l s o c i t e O’ Ma ra v. GEICO Ge neral Insura nce Co. , Civ. A. No. 09-CV- 1 5 229- GK F-FH M, 2010 WL 2690370 (N .D

. Ok la. July 2, 2010) , in sup por t of the dis tri ct cour t’s
sua sp onte sum mar y judgm ent. O’ Ma ra is als o dis tinguis hable, how ever, beca use even thou gh def ens e couns el st ated at the hearing on the plai ntif f’ s mo tio n for sum mar y judgm ent that he wa s not ask ing for sum mar y judgm ent and pr efe rre d tri al, plai ntif f’ s couns el sugges ted at the mo tio n hearing that the iss ue coul d be dec ide d as a mat ter of law , and the cour t dis cus se d wi th both couns el wh ethe r the court ought to grant sum mary judgm ent on t h e i s s u e i n favor of def enda nts

. 26 Case: 10-20424 Document: 00511631302 Page: 26 Date Filed: 10/13/2011No. 10-20424

summary judgment against them, and it should have been apparent that entry of summary judgment would have been an unfair surprise. Ac cordingly, the entry of summary judgment sua sponte was error. See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating Eng’rs, Local Union 150, AFL-CIO , 335 F.3d 643, 650 (7th Cir. 2003) (“[T]he fact that [plaintiff] itself sought summary judgment for different reasons does not mean that it was fairly apprised of the ultimate basis for the district court’s reasoning. This is the precise reason why

our court has repea t edly explained that it is appropriate to grant summary judgment sua sponte only when it is clear that neither side will be disadvantaged or unfairly surprised by the move.”). However, failure to provide proper notice is harm l e s s error “if the nonmovant has no additional evidence or i f all of the nonmovant’s additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of materi a l f act.” Id

. Because Plaintiffs offered additional evidence, thi s C o u r t reviews the evidence to determine whether it presents a genuine issue of material fact. The district court granted summary judgment based on Plaintiffs’ failure t o meet their initial burden to show a violation of the minimum-w a g e requirement. Specifically, the district court found that the workers h ad produced no evidence concerning how many hours Pla i n t i f f s worked for which they were not compensated and had not shown that their total number of weekly hours worked divided by their weekly pay was less than minimum wage. The 1 6

The dis tri ct cour t der ived this we ekly average wa ge st andar d fr om Uni ted States v. 1 6 Kli nghoff

er Bros

. Rea lty Corp

. , 285 F.2d 487, 490 (2d Cir. 1960)

. De fen dant s urged app lica tio n of this st andar d in the dis tri ct cour t, and they do so on app eal. The wo rk ers did not tak e iss ue wi th this st andar d in the dis tri ct cour t or on ap p e a l

. T he Court ther efo re wi ll det erm ine wh ethe r the wo rk ers have pr es ente d suf fic ient evide nce to cre ate a mat eria l iss ue of fac t unde r this st andar d. But see Norcei de v. Cam bri dge He al th Al li anc e , Civ. A. No. 10-CV- 11729- NG , 2011 WL 3895126 (D

. Mas s. Aug. 28, 2011) (r eject ing app lica tio n of the we ek ly average wa ge st andar d in favorof

an hour- by-ho ur st andar d)

.

27 Case: 10-20424 Document: 00511631302 Page: 27 Date Filed: 10/13/2011No. 10-20424

district court further found that the minimum- w a ge cl ai m r el at e d to the workers’

c o m p e n s a t ion deductions failed for the same reasons – because they failed t o show that this deduction reduced their pay below the applicable minimum wage. In their motion to reconsider, Plaintiffs asserted that, had they been given notice, they w o u l d have filed evidence, including but not limited to the declarations of Pablo Chable, Antonio Ramirez, Ricardo Flores, Ernesto Ramos, Carlos D iaz, and Mariano Buendia. They contended that they “had no opportunity to submit this and other additional evidence becau s e they did not

r e c e ive notice.” In a footnote to their motion, the workers stated that “ [ e ] a c h chipper logged the same or rough l y t h e s ame number of compensated and uncompensated but compensable hours as the other chippers on their work crew resulting in a minimum wage violat i o n f or each plaintiff.” The workers also asked the district court, upon granting their motion to reconsider, to determine whether C2C violated the FLSA by d educting $28.00 from each of their paychecks to pay the company’s workers’ compensation premiums and the other issues, such as compensability of certain activities, raised in the workers’ motion for partial summary judgment. Plaintiffs’ additional evidence includes affidavits, spreadsheets, time logs, and pay r e c o r d s f

o r six Plaintiffs – Pablo Chable, Antonio Ramirez, Ricardo Flores, Ernesto Ramos, Carlos Diaz, and Mariano Buendia. According to Pablo Chable’s affidavit, he began working as a chipper in April 2006. Chable states that he was paid $11 per hour for 23 hours in the week of October 28, 2007, but

once travel time was factored in, he was only effectively paid $ 5 .31 per hour. 1 7 He also submitted a spreadsheet summarizing the total hours worked divided

Travel tim e wa s es tim ated by divid ing the mi les traveled (d erive d fr om GPS rec ord s 1 7 pr oduc ed by De fen dant s) by 50 mp h. Plaint iffs st ate that the sp eed lim it wa s 65 mp h, but 50 mp h wa s use d to be cons ervat ive. Whet her this is a reli able me thod of de t e r m i ning travel tim e has notbeen chall engedby De fen dant s, and the Courtmak es no dete rm inati on on this iss ue. 28 Case: 10-20424 Document: 00511631302 Page: 28 Date Filed: 10/13/2011No. 10-20424

by the hourly pay for the weeks ending September 30, 2007 throu gh Fe b ruary 24, 2008. The spreadsheet shows that he was also paid less than minimum wage for the weeks ending January 6, 2008, January 27, 2008, and February 17, 2008, and that Chable was thus owed $510.59 for the period between September 2007 and February 2008. The spreadsheet then estimates an average amount owed
per week of $30.08 ($510.59 divided by seventeen weeks worked). Since Chable worke d 9 8 w e e ks, the spreadsheet then estimates a total amount of minimum wages owed as $2,943.40. This does not include the additional amount withheld for workers’ compensation premiums, which is estimated at $1,372, and would further reduce Chable’s effective hourly pay rate. T h e evidence submitted by the other five chipper Plaintiffs is sim i l a r . Given the status of this case, in which no determi n a t i o n h as yet been made regarding the compensable nature of the time spent receiving instructions and loading tools, traveling from Pasadena to job sites, in between job sites and back to Pasadena, and the time spent at training meetings, this evidence is sufficient to raise a fact issue on the minimum-wage claims of the affiants. Defendants contend t h a t, even if the summary-judgment evidence submitted by the six Plaintiffs raises a material fact issue as to their claims,
summary judgment shou l d n e vertheless be affirmed as to all other Plaintiffs. These other Plaintiffs include certain named Plaintiffs – Alv aro Albanil, Antonio Buendia, Santos Chable, Jose Herrera, Elvin Marin, and Noe Martinez – and all the opt-in Plaintiffs except Ernesto Ramos, who submitted evidence. Plaintiffs 1 8 assert that all workers were paid the same way, and thus their evidence is sufficient to raise a fact issue on all of the workers’ claims, though each worker

As note d, six of the wo rk ers (f our chip per s and the tw o for em en) adm itt ed that thei r 1 8 hourl y rat es we re high enough that , even cons ide ring non- com pens ated tim e, they we re paid mo re than the mi nim um wa ge. Thus, sum mary judgm ent as to thes e Plaint iffs is app rop riat e. 29 Case: 10-20424 Document: 00511631302 Page: 29 Date Filed: 10/13/2011No. 10-20424

will have to provide evidence at trial to support both liability and their specific damages. Where an employer has failed to maintain accurate payroll records, an employee carries his burden to establish a prima facie case under the FLSA if h e s h ows he performed work for which he was improperly compensated and produces some evidence to show the amount and extent of that work “as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 687 (1946). This court and other circuit courts of appeals have recognized that the Mt. Clemens Pottery standard allows plaintiffs to establish a prima facie

case for non-testifying employees based on the “f a i rly representational” testimony of other employees. Brennan v. Gen. Motors Acceptance Corp. , 482 F.2d 825, 829 (5th Cir. 1973) (h o l di n g that the plaintiffs established a prima facie case that all plaintiffs work e d u n r e ported hours through representative testimony); see also Reich v. S. New England Telecomms. Corp. , 121 F.3d 58, 67 (2d Cir. 1997) (“In meeting the burden under Mt. Clemens , the Secretary need not present t e s timony from each underpaid employee; rather, it is well-estab l i s hed that the Secretary may present the testimony of a representative sample of employees as part of his proof of the prima facie case under the FLSA.”); Reich v. S. Md. Hosp., Inc. , 43 F.3d 949,951 (4th Cir. 1995) (“[T]he Secretary can present testimony from representative employees as part of his proof of the prima facie case.”); Secretary of Labor v. DeSisto , 929 F.2d 789, 792 (1st Cir. 1991) (r e c o gnizing that “the Secretary can rely on testimony and evidence from representative employees to mee t t h e initial burden of proof requirement.”); Martin v. Selker Bros., Inc. , 949 F.2d 1286, 1298 (3d Cir. 1991) (“The testimony and evidence of representative employees may establish prima facie proof of a p a ttern and practice of FLSA violations.”); Brock v. Norman's Country Mkt., Inc ., 835 F.2d 823, 828 (11th Cir. 1988) (“[I]t is clear that each employee need not testify in order to make out a prima facie case of the number

30 Case: 10-20424 Document: 00511631302 Page: 30 Date Filed: 10/13/2011No. 10-20424

o f hours worked as a matter of ‘just and reasonable inference.’ ”); McLaughlin

v. Ho Fat Seto , 850 F.2d 586, 589 (9th Cir. 1988) (f iv e e m p l o y e es were sufficiently re p resentative of twenty-eight plaintiffs). “[M]ost cases resting on representational evidence ‘involve a fairly small employee population, a limited number of employee positions, and uniform work tasks.’” Reich , 121 F.3d at 67. In this case, Plaintiffs submitt e d affidavits and other evidence from six Plaintiffs as representative testimony for approximately thirty-five chipper Plaintiffs. In Brennan , reviewing the trial court's findings under a clearly erroneous standard, we affirmed a judgment in favor of thirty-seven employees on their overtime claims when the district court found, based on the testimony of sixteen representative employees and an investigator, that a certain class of employee worked unreported overtime hours. Brennan , 482 F.2d at 8 2 9

. W e held that, from these two sources, “the trial court might well have concluded that plaintiff had established a prima facie case that all thirty-seven employees had worked unreported hours” such that the burden of proof shifted to the defendant to show which of the employees had reported all overtime hours. Id. Further, in Beliz v. W.H. McLeod & Sons Packing Co.,765 F.2d 1317 (5th Cir. 1985), we reversed a summary judgment on the plaintiffs’ minimum-wage claims where the district court found that evidence concerning hours worked by individual plaintiffs was lacking. Taking into account the testimony of a few witnesses regarding the nu m b e r of hours worked by the family groups of

w o r k ers, it was apparent from the pay records that there was an egregio u s minimum wage violation for every worker in the crew. Id. at 1331. Therefore, “the only in e x actness that could be found in the plaintiffs’ case lay in the evidence concerning the hours worked by each member of each family unit.” Id. Three plaintiff witnesses t e s t ified about the hours they, their spouses and children, and other families worked. Id. We held, “[I]t is clear that each employee need not testify in order to make out a prima facie case of the number

31 Case: 10-20424 Document: 00511631302 Page: 31 Date Filed: 10/13/2011No. 10-20424

o f h o u r s worked as a matter of just and reasonable inference.” Id. Testimony of some employees concerning the hours worked by groups of no n - t estifying

e m p l oyees is sufficient if those who do testify have personal knowledge of th e work performed by those who do not. Id. Thus, the testimony of three witnesses who testified about the hours t h eir families and other families worked was sufficient to approximate the number of hours worked. In Von Friewalde v. Boeing Aerospace Operations, Inc. , 339 Fed. App’x 448 (5th Cir. 2009), we affirmed summary judgment against those p l a i n t iffs in a

c o l l e c tive action who came forward with no summary-judgment evidence a n d h a d not provided any substantive answers to the defendant’s interrogatories. I d

. at 455-56. The appellants argued that there was a “common nucleus of liability facts” among all of their claims, but af t e r reviewing the evidence, we found instead that “the details surrounding each of their claims vary in s i gn i f i c ant ways, such that few if any of the appellants” were similarly situated for purposes of the FLSA. Id. at 456. Further, we found t h a t “th e claims of all those appellants who [had] not p r o d u c e d any evidence at all

. . . necessarily fail[ed]” because those appellants had numerous opportunities t o p rovide deposition test i m o n y, affidavits, documents, or answers to interrogatories in support of t h e i r c l a i m s. Id. But as it stood, we knew “nothing of those appellants other than their names and the fact that they wer e allegedly employed in some unidentified capacity.” Id. This case, in contrast to Von Friewalde , satisfies the requirement that the testifying employees are “fairly representationa l

. ” B ecause the two foremen Plaintiffs did not challenge the award of summary judgment on the minimumwage claims, all remaining Plaintiffs are chippers. The parties stipulated that the chippers were employees of Defendants during the relevant time periods. In certifying the chipper class, the district court fou n d a n d Defendants admitted “that all of their chippers perform the s a m e or similar duties as the named

32 Case: 10-20424 Document: 00511631302 Page: 32 Date Filed: 10/13/2011No. 10-20424

plaintiffs and receive pay similar to the name d p l a i n tiffs.” The district court further found that the chippers regularly work in excess of forty hours per week while they are traveling, the chippers perform the same or similar duties, that all chippers are subject to a common pay policy, and that the experiences of the named plaintiffs are t yp i c al to those of the other chippers. In addition, the 1 9 affidavits submitted by the six chippers all state that they worked side-by-side with the other chippers on their crew; that they traveled together and performed the same work; and that they had seen their paychecks and they also were not paid for time spent performing work before departing Pasadena, or traveling to and from Pasad e n a and between chipping sites. Further, Defendants have

a dmitted to deducting $28 from every chipper’s paycheck for worke r s ’ compensation insurance, which would further reduce the workers’ hourly wage rate. 2 0Given the procedural posture of t h i s case, the evidence submitted is sufficient to raise a fact issue concerning all of th e ap p ealing chippers’ minimumwage claims such that remand of their claims is appropriate. On remand, once t h e district court makes the predicate determination of what activities a r e compensable, Plaintiffs s h o u l d be able to come forward with a more exact 2 1

De fen dant s have not cro ss -ap pea led or othe rw ise chall enged the dis tri c t c o u r t ’ s 19
cer tif icat ion ord er or any o f itsf indi ngs ther ein.
De fen dant s als o cont end t h a t P laint iff s have wa ived thei r clai ms bas ed on the 2 0
wo rk ers ’ com pens atio n ded uct ion in rela tion to th eir mi nim um- wa ge clai m by fai ling to sp ecif ical ly add res s it in thei r app ellat e brie f. Ho we ver, it is undi sp uted that De fen d a n ts ded uct ed $28 fr om every chip per ’s pa yc heck , and the wo rk ers ’ com pens atio n ded uct ion is sim ply an asp ect of Plaint iffs’ mi nim um- wa ge clai m. The dis tri ct cour t dis mi ss ed this asp ect of the clai m on the sam e bas is as the rest of the mi nim um- wa ge clai m – that Plaint iffs fai led to sho w that thei r act ual wa ges we re below the mi nim um wa ge – and Plaint iffs have app rop riat ely pr es erved , brie fed , and sub mit ted evi d e n c e rela ted to thei r mi nim um- wa ge clai m, in clud ing t he wo rk ers ’ com pens atio n d educ tio ns.

The d i s t r i ct cour t ass ume d wi thou t dec idi ng that the act ivitie s we re com pens able 2 1
as argued by Plaint iffs, and held that Plai n t i f fs h a d not dem ons tra ted a mi nim um- wa ge violat ion even cons ide ring t h o s e h o u r s . Becaus e we rever se the dis tri ct cour t’s grant of 33 Case: 10-20424 Document: 00511631302 Page: 33 Date Filed: 10/13/2011No. 10-20424

determination of their actual hourly wages. On remand, we leave to the district court in the first i n s t a n ce the determination of how to obtain precise proof of damages regarding each remaining plaintiff. III. We AFFIRM IN PART the judgment of the District Court with regard to all Plaintiffs’ overtime claims and with regard to the minimum-wage claims brought by Pedro Buendia, Gerardo Ramirez, Hector Albanil, Martin Albanil, Abel Ramirez, an d M a r t i n Rivas. We REVERSE the judgment of the District Cour t with regard to the remaining Plaintiffs’ minimum-wage claims and REMAND for further proceedings consistent with this opinion.

sum mar y judgm ent on the issu e of wh ethe r Plaint iffs dem ons tra ted that they we re paid les s than mi n i m u m wa ge, the det erm inati on of wh ethe r the act ivitie s we re com pens able is once again a live iss ue. On rem and, the dis tri ct cour t sho uld evaluat e Plaint i f fs ’ mo tio n for
sum mar y judgm ent and acc om panying evidence to determine wh ethe r Plaint iffs sat isf ied thei r sum mar y-jud gment burd en. See John v. State of La. , 7 5 7 F.2d 698, 709 (5t h Cir. 1985) (ho ldi ng that , “[i]n the l i gh t of Rule 56’s clea r com man d that a par ty need not res pond to a mo tio n for sum mar y j u d g m e n t unles s the mo ving par ty dis char ges its init ial burd en, ” a sum mar y judgm ent canno t be sup por ted so lely on the ground that a par ty fai led t o res pond to a m oti on fors umm ary judgm ent)

. 34 Case: 10-20424 Document: 00511631302 Page: 34 Date Filed: 10/13/2011