FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 9, 2006

THOMAS K. KAHN

CLERK

 Honorable John F. Nangle, United States District Judge for the Eastern District of *

Missouri, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11233

________________________

D. C. Docket No. 04-60095-CV-JIC

JOSEPH THORNE, 

Plaintiff-Appellant, 

versus 

ALL RESTORATION 

SERVICES, INC. et al., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 9, 2006)

Before BIRCH and MARCUS, Circuit Judges, and NANGLE , District Judge. *

NANGLE, District Judge: 
2

Joseph Thorne appeals the district court’s grant of All Restoration Services’

[ARS] Rule 50 motion for dismissal. Thorne argues that the district court erred in

granting the Rule 50 motion because there was sufficient evidence presented at

trial to show that he was entitled to individual coverage under the Fair Labor

Standards Act when he regularly used Defendants’ credit cards, and performed

restoration work directly essential to the production of goods for commerce. This

Court finds that Thorne failed to present sufficient evidence that he was either

engaged in interstate commerce or was engaged in the production of goods for

commerce. Accordingly, the Court AFFIRMS the district court’s grant of

Appellees’ Rule 50 motion and dismissal of the case.

I. BACKGROUND

Appellant Thorne sued Defendant Appellees under the Fair Labor Standards

Act (“FLSA”) for alleged nonpayment of overtime compensation. Defendants

moved for a Rule 50 motion to dismiss, arguing that the FLSA did not apply

because Thorne had not presented evidence at trial that he qualified for either

enterprise coverage or individual coverage under the FLSA. The district court

granted Appellees’ motion and dismissed the case, finding that “the plaintiff’s

activities were local in nature and really did not affect interstate commerce in

general.” R44 at 163. Thorne appeals only the district court’s finding that he did
 Appellant Thorne did not raise the issue of enterprise coverage on appeal. 1

3

not prove individual coverage under the FLSA. 

At trial, Thorne testified that during his employment for ARS, he primarily

performed mold and water damage restoration work for residential and

commercial properties. He also performed ministerial work for ARS, which

included making purchases of goods for the company. Thorne testified that two to

three times per week, he used Appellees’ VISA credit card to purchase gas for

Appellees’ truck. R44 at 83. Thorne also testified that he used Appellees’ Home

Depot credit card two to three times per week to purchase goods and materials as

part of his employment. R44 at 83. Thorne testified that he believed the Home

Depot bills came from Atlanta. R44 at 84. However, Thorne later testified that

his activities were purely local without any affiliation to matters outside the state

of Florida. R44 at 124, 132.

II. DISCUSSION

Thorne argues that he qualifies for individual coverage under the FLSA

because as part of his employment he was (1) engaged in commerce, and (2)

engaged in the production of goods for commerce. Under FLSA, an employer is

required to pay overtime compensation if the employee can establish enterprise

coverage or individual coverage. For individual coverage to apply under FLSA, 1
4

Thorne must have provided evidence at trial that he was (1) engaged in commerce

or (2) engaged in the production of goods for commerce. 29 U.S.C. § 207(a)(1)

(2005) (stating “no employer shall employ any of his employees who . . . is

engaged in commerce or in the production of goods for commerce . . . for a

workweek longer than forty hours unless such employee received compensation . .

. at a rate no less than one and one-half times the regular rate”). After discussing

the standard for review, the Court will address each prong in turn. 

A. Standard for Review

The Court reviews the grant of a Rule 50 motion de novo and “applies the

same standards employed by the district court.” Abel v. Dubberly, 210 F.3d 1334,

1337 (11 Cir. 2000). The standard for judgment as a matter of law mirrors that of th

summary judgment in that the non-movant must do more than raise some doubt as

to the existence of facts but must produce evidence that would be sufficient to

require submission of the issue to a jury. Matsushita Elec. Ind. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Although we look at the evidence in the

light most favorable to the non-moving party, “the non-movant must put forth

more than a mere scintilla of evidence suggesting that reasonable minds could

reach differing verdicts.” Abel, 210 F.3d at 1337. Therefore, a substantial

conflict in the evidence is required before a matter will be sent to the jury, and the
5

grant of a Rule 50 motion is proper when the evidence is so weighted in favor of

one side that that party is entitled to succeed in his or her position as a matter of

law. Id. The Court finds that Appellant Thorne has failed to raise a substantial

conflict in the evidence that his activities were inherently local. Accordingly,

Appellees were entitled to judgment as a matter of law.

B. Engaged in Commerce

Thorne argues that he was individually engaged in interstate commerce

because he regularly used Defendants/Appellees’ credit cards in the course of his

employment. Appellees respond that the trial court was correct in finding that

Thorne was not individually covered by FLSA because his credit card activities

did not involve interstate commerce. The Court is persuaded by Appellees’

argument, and the Court finds that Thorne did not produce sufficient evidence at

trial that his credit card use involved interstate commerce.

The Supreme Court has articulated that it is the intent of Congress to

regulate only activities constituting interstate commerce, not activities merely

affecting commerce. McLeod v. Threlkeld, 319 U.S. 491, 497. Therefore, for an

employee to be “engaged in commerce” under the FLSA, he must be directly

participating in the actual movement of persons or things in interstate commerce

by (i) working for an instrumentality of interstate commerce, e.g., transportation or
6

communication industry employees, or (ii) by regularly using the instrumentalities

of interstate commerce in his work, e.g., regular and recurrent use of interstate

telephone, telegraph, mails, or travel. 29 C.F.R. §776.23 (d)(2) (2005); 29 C.F.R.

§776.24 (2005). See, e.g., McLeod, 319 U.S. at 493-98 (finding that plaintiff’s

activities were purely local, and he was not engaged in commerce when he merely

cooked and cleaned for railroad workers). In the case at issue, there was no

evidence at trial that Thorne worked for an instrumentality of interstate commerce,

and Thorne only argues that he regularly used the instrumentalities of interstate

commerce in his work by using Appellees’ credit cards to make purchases for the

business. 

Thorne argues that he engaged in interstate commerce both when he used an

instrumentality of interstate commerce, i.e. a credit card, to transact business, and

also when he purchased goods which had traveled in interstate commerce. 

However, Thorne’s argument that he engaged in interstate commerce fails because

he did not produce sufficient evidence of interstate transactions. 

First, Thorne cites no binding authority which holds that credit card

transactions constitute an instrumentality of interstate commerce. C.f. Kitchings v.

Florida United Methodist Children's Home, Inc., 393 F.Supp.2d 1282, 1293

(M.D.Fla., 2005) (denying individual coverage under FLSA when plaintiff
7

houseparents at Children’s Home purchased personal items for Residents at local

stores using Children's Home's credit card). Thorne relies on a Department of

Labor opinion letter, which states that “[e]mployees . . . are individually covered

under the FLSA if, in the performance of their duties, they are engaged in

interstate commerce. . . . Such employees include those who regularly handle

interstate mail and telephone calls, engage in banking or credit card transactions,

or receive or handle goods or materials from or destined for out-of-state sources.” 

Opinion Letter, FLSA, 1999 WL 1002373 (March 5, 1999). 

Even assuming, without deciding, that credit card transactions alone could

constitute an instrumentality of interstate commerce, Thorne did not produce

sufficient evidence of interstate activity to overcome Defendants/Appellees’ Rule

50 motion. Thorne did not produce evidence that he corresponded with merchants

outside the state of Florida using the mail, phone, or fax, and nor did he produce

evidence that he made purchases of goods from out-of-state vendors. Rather, the

only evidence Thorne produced at trial which implicated interstate activity was

that bills for purchases made locally at a Home Depot may have been sent from

Georgia. Thorne testified that the Home Depot bills, “[i]f I’m not mistaken, I

think they come from out of Atlanta.” R44 at 84. However, Thorne later testified

at trial that he “didn’t do anything that had anything to do with any matter outside
 Decisions of the United States Court of Appeals for the Fifth Circuit on and before

2

September 30, 1981 are binding precedent for the Eleventh Circuit. Bonner v. City of Prichard,

661 F.2d 1206, 1207 (11 Cir. 1981) (en banc). th

8

of the state.” R44 at 132. This Court finds that Thorne’s testimony, stating he

believed credit card bills came from Atlanta for purchases made at a local Home

Depot was not sufficient evidence of engagement in interstate commerce to require

submission of the issue to a jury.

Moreover, the fact that some of the tools he purchased may have crossed

state lines at a previous time does not in itself implicate interstate commerce. 

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. McLeod, 319 U.S. at 493. Courts

distinguish between merchants who bring commerce across state lines for sale and

the ultimate consumer, who merely purchases goods that previously moved in

interstate commerce for intrastate use. Therefore, a customer who purchases an

item from Home Depot is not engaged in commerce even if Home Depot

previously purchased it from out-of-state wholesalers. 

In Dunlop v. Industrial America Corporation, 516 F.2d 498, 499 (5th Cir.

1975), the court was faced with the question of whether a business which 2
9

consumes gasoline and oil in the process of providing services to its customers is

the "ultimate consumer" of those goods, and therefore not subject to FLSA

coverage. The defendant corporation operated a wholly intrastate garbage

removal service, and its only tie to interstate commerce was that its employees

used gasoline and oil products which had moved in interstate commerce in

operating and maintaining the company's trucks. The court held that the defendant

was not covered because it was an “ultimate consumer” of the goods. Id. at 499-

502. 

Similar to the defendant in Dunlop, ARS operates exclusively within the

state of Florida, and its customers are located instate. Under the precedent of

Dunlop, ARS’s activities were not rendered interstate commerce simply because

ARS, an ultimate consumer, purchased goods which had previously moved in

interstate commerce. Accordingly, the Court finds that Thorne did not produce

sufficient evidence that he engaged in interstate commerce to overcome

Defendants’ Rule 50 motion. 

C. Engaged in the Production of Goods for Commerce

Thorne argues he was individually covered under the FLSA not only

because he was engaged in commerce, but also because his restoration work was
10

directly essential to the production of goods in commerce. Employees whose

work is closely related and directly essential to the production of goods for

commerce are individually covered under the FLSA. 29 C.F.R. § 776.18 (2005). 

Congress has indicated that individual coverage under the FLSA includes even

maintenance employees of an independent employer who performs work directly

essential to producers of commerce. 29 C.F.R. § 776.18 (b). Typical of the

employees in this covered group are those who repair or maintain the machinery or

buildings used by the producer in his production of goods for commerce and

employees of a security force that protects the producer's premises. Id. For

example, in Kirschbaum v. Walling, 316 U.S. 517, 518-526, (1942), the Supreme

Court held that certain maintenance employees of a clothing manufacturer were

covered under FLSA because there was “such a close and immediate tie with the

process of production for commerce.” Id. 

In contrast, employees of independent contractors which provided local

services such as window cleaning, lawn maintenance, and pest control are not

included as employees doing work "closely related" to production merely because

the customers of the employer happen to include producers of goods for

commerce. 29 C.F.R. § 776.19 (b)(5). For example, employees of a local

exterminator service firm who worked wholly within the state exterminating pests
 Conflicting testimony showed that the majority, between fifty and ninety percent, of 3

ARS’s work was residential, which is not covered under FLSA. R44 at 30, 94. 

 Thorne testified that he performed restoration services for the following businesses: 4

Burdines department store, City Hall, offices in a high-rise complex, and a Cadillac dealership. 

However, Thorne never produced evidence that these business were engaged in the production of

goods for interstate commerce. 

11

in private homes and in buildings used to produce goods for interstate commerce

are not individually covered under FLSA. 29 C.F.R. § 776.19 (b)(5). 

Similar to a local exterminator service firm, ARS was a local service firm

that performed mold and water restoration of residential and commercial buildings

entirely intrastate. Testimony at trial showed that a minority of ARS’s clients

were commercial businesses. The Court is not convinced that Thorne’s water

3

restoration work for a few commercial businesses constitutes work directly

essential to the production of goods for interstate commerce. Rather, testimony

showed that ARS was primarily a local service provider, whose services had little

effect on commercial establishments, let alone the production of goods for

commerce. Accordingly, the Court finds that the district court properly granted 4

Defendants/Appellees’ Rule 50 motion. 

III. CONCLUSION

Appellant Thorne appeals the district court’s grant of Appellees’ Rule 50

motion and argues on this appeal that he produced evidence sufficient at trial to
12

invoke individual coverage under the FLSA. After de novo review, the Court

finds that Appellant Thorne failed to raise a substantial conflict in the evidence at

trial that his activities were inherently local. Finding no error, we AFFIRM the

district court’s grant of Appellees’ Rule 50 motion and dismissal of this case. 

AFFIRMED.