[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-14769

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-23609-JLK

ALFREDO OCAMPO PINO, 

and all others similarly situated under 

29 U.S.C. 216(B),

 Plaintiff-Appellant,

 versus

PAINTED TO PERFECTION CORP., 

NOEL NAZARIO, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 12, 2014)

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM: 

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Alfredo Pino appeals from the district court’s order granting summary 

judgment to his employer Painted to Perfection Corp. and its owner Noel Nazario

in this action for overtime wages under the Fair Labor Standards Act (FLSA), 29 

U.S.C. §§ 201 et seq.1

 We must decide whether Pino was an individual “engaged 

in commerce,” and thus entitled to overtime, under § 207(a)(1). Because we 

conclude that he was not, we affirm.

Painted to Perfection is a yacht refinishing and painting business owned by 

Nazario in south Florida. In the relevant time period, Pino worked at Painted to 

Perfection, first as a prep person and later as a painter and supervisor. He was paid 

hourly until 2012, when he became salaried. While an hourly employee, he 

averaged 63 hours a week at $15 per hour, with no overtime compensation. 

In 2012, Pino filed the instant complaint seeking overtime wages under the 

FLSA.2 He alleged that Painted to Perfection was an “enterprise” grossing 

$500,000 or more a year, and that both his work and the business itself affected 

interstate commerce.

Painted to Perfection moved for summary judgment, explaining that the 

business did not gross more than $500,000 a year in any of the relevant years, and 

 1

 The FLSA mandates that an “employee[ ]” who is “engaged in interstate commerce” must be 

paid time-and-a-half for all hours he works in excess of forty hours per week. 29 U.S.C. § 

207(a). The FLSA creates a private cause of action by the employee for the recovery of unpaid 

overtime wages and back pay. Id. § 216(b).

2

 Although Pino captioned his complaint as “on behalf of others similarly situated,” he did not 

make any class allegations or seek class certification. See, e.g., Fed. R. Civ. P. 23 (addressing 

class actions). Thus, we will consider Pino’s allegations as they apply to him individually.

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thus it was not an “enterprise” under the FLSA. It also argued that Pino’s work did 

not affect interstate commerce because he painted pleasure boats for local 

customers.

In Nazario’s attached deposition, Nazario confirmed that his business did not 

gross the minimum amount to qualify as an “enterprise.” And although he 

conceded that he had done work on boats from Italy, he stated that to his 

knowledge, the boats Pino worked on all belonged to local customers. In his 

affidavit, Nazario stated that he owned a local business that painted pleasure boats 

for local customers. He explained that the boats were not of a commercial nature 

and not intended for interstate commerce.

In his affidavit, Pino stated that many of the boats he worked on were 

“destined for interstate commerce,” and had foreign or out-of-state registries. He 

explained that, although he did not speak with the yachts’ owners, he often spoke 

to the captains and learned the boats would travel out of state.

The district court granted summary judgment to Nazario and Painted to 

Perfection, finding that the business was not an enterprise under the FLSA. The 

court further found that Pino was not entitled to individual coverage under the 

FLSA because he did not use instrumentalities of commerce. The court explained

that working on boats with foreign registries did not change his intrastate activity 

to one involving interstate commerce. Pino now appeals.

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We review de novo the district court’s grant of summary judgment. 

Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary 

judgment is proper “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “We draw all factual inferences in a light most favorable to the 

nonmoving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). 

The FLSA requires employers to pay covered employees at an overtime rate 

if they work more than 40 hours in a workweek. 29 U.S.C. § 207(a)(1). To be 

entitled to the Act’s protections, however, Pino must first show that he is covered 

by the Act by establishing either that his employer is an “enterprise engaged in 

commerce” or that he is entitled to individual coverage. Josendis v. Wall to Wall 

Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). At issue in this 

case is whether Pino can establish individual coverage. 3

 

To be eligible for “individual coverage,” Pino must show that he was 

“engaged in” commerce; that is, he regularly and “directly participat[ed] in the 

actual movement of persons or things in interstate commerce” by “working for an 

instrumentality of interstate commerce, e.g., transportation or communication 

industry employees . . . .” Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 

 3

 Pino has abandoned his argument that Painted to Perfection was an “enterprise” under the 

FLSA. Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (explaining that issues not raised 

in the initial brief are abandoned).

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1266 (11th Cir. 2006) (citing McLeod v. Threlkeld, 319 U.S. 491, 493–98 (1943); 

29 C.F.R. § 776.23(d)(2) (2005); 29 C.F.R. § 776.24 (2005)); see also 29 U.S.C. § 

207(a)(1) (mandating time-and-a-half for “employees . . . engaged in [interstate] 

commerce or in the production of goods for [interstate] commerce”); 29 C.F.R. 

§ 776.1 (addressing the requirement that the employee be engaged in commerce). 

“Commerce” is defined to include transportation between states and is “very 

broadly defined.” See 29 C.F.R. § 776.8. In determining what activities qualify as 

“in commerce,” 

[o]ne practical question to be asked is whether, without the particular 

service, interstate or foreign commerce would be impeded, impaired, 

or abated; others are whether the service contributes materially to the 

consummation of transactions in interstate or foreign commerce or 

makes it possible for existing instrumentalities of commerce to 

accomplish the movement of such commerce effectively and to free it 

from burdens or obstructions. 

29 C.F.R. § 776.9.

In McLeod, which involved a cook for a railroad company, the Supreme 

Court explained that employees must be in the “channels of interstate commerce,” 

such as operating or maintaining transportation facilities, to be covered under the 

FLSA. But “those who merely affected that commerce” were not entitled to 

coverage under the “engaged in commerce” provision of the FLSA. McLeod, 319 

U.S. at 493–94; see also 29 C.F.R. § 776.11(c) (stating that in McLeod the cook’s 

work was “too remote from interstate commerce or foreign commerce to establish 

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coverage on the ground that the employee performing it is ‘engaged in 

commerce’”).

Pino argues that he was “engaged in commerce” because he worked on boats 

with foreign registries, he spoke with captains of boats with foreign registries, and 

Nazario traveled out of state to work on boats. The district court found these 

insufficient to establish FLSA coverage. We agree.

There is no dispute that Pino never traveled outside Florida to work on any 

boats, and the fact that Nazario did is irrelevant. Josendis, 662 F.3d at 1316. 

Moreover, the fact that the boats at some point moved in interstate commerce is 

also insufficient. Instead, Pino must show that he “directly participated in the 

actual movement of persons or things in interstate commerce.” Id. (citing Thorne, 

448 F.3d at 1266) (emphasis omitted). The interstate nature of the boats Pino 

worked on ended when the boats reached their ultimate consumer. See Thorne, 

448 F.3d at 1267 (“When goods reach the customer for whom they were intended, 

the interstate journey ends and employees engaged in any further intrastate 

movement of the goods are not covered under the Act.”). Moreover, the act of 

painting the boats is a purely intrastate activity. See e.g., Navarro v. Broney Auto 

Repairs, Inc., 314 F. App’x 179, 180 (11th Cir. 2008) (installation of motor parts 

into foreign and domestic cars was intrastate activity). There is nothing about 

painting pleasure boats that directly moves the boats into interstate commerce.

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Finally, Pino alleged that he worked on boats with foreign registries. But 

painting such boats does not have the type of “close and immediate” connection 

with interstate commerce that would trigger individual coverage. Cf. Kirschbaum 

v. Walling, 316 U.S. 517, 518-26 (1942) (holding that maintenance workers of 

clothing manufacturer were covered under the FLSA). Painting pleasure boats is 

not work that, if absent, would “impede[], impair[], or abate[]” interstate 

commerce. See 29 C.F.R. § 776.9. Nor is it the type of “service [that] contributes 

materially to the consummation of transactions in interstate or foreign commerce 

or makes it possible for existing instrumentalities of commerce to accomplish the 

movement of such commerce effectively and to free it from burdens or 

obstructions.” Id.

Accordingly, for the foregoing reasons, we conclude that Pino was not 

engaged in commerce in such a way as to be eligible for individual coverage. 

AFFIRMED.

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