in the pleadings or conclusory statements in affidavits. Jd. at 324. The non-moving party must
designate specific facts showing that there is a genuine issue for trial. Jd. ‘“[N]cither ‘the mere
existence of some alleged factual dispute between the parties’ . . . nor the existence of ‘some
metaphysical doubt as to the material facts,’ is sufficient to defeat a motion for summary judgment.”
Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7 Cir. 1997)(quoting Anderson, 477
U.S. at 247 and Matushita Electrical Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).

It is undisputed that Defendant’s routemen like Plaintiffs transport the product in plastic
trays, which, when empty, are collected by the routemen and delivered to the Glendale Heights
warehouse. From there, the bread trays are taken to LaPorte, Indiana to be refilled with product.
Although Plaintiffs appear to be attempting to create a question of fact by Kenneth Jones’ affidavit,
they do not argue that there is a question of fact about whether the bread trays are ultimately taken
to Indiana. Even drawing all reasonable inferences in favor of the nonmovants, Jones’ statement that
“on most occasions” the empty bread trays he unloaded the previous afternoon would “often” still
be in the warehouse, does not crcate an issue of fact. (Jones Afft. 8.) Plaintiffs have admitted that
all bread trays were returned to LaPorte, and that empty trays were stored in the warchousc for
between a few hours and twenty-four hours, depending on the schedule of the LaPorte truck. (Def.’s
LR Stmt. {{ 14, 15.) Even assuming that all 90 of the trays that were not returned during the week
of June 1, 2002 were bread trays, that would be approximately one percent of the total of 6730 bread
trays that were returned to LaPorte. Defendant has demonstrated a fixed and persisting intent that
the bread trays travel from Indiana to Mlinois and back to Indiana. Plaintiffs have not come forward

with evidence to create a genuine question of fact opposing the application of the exemption, and

13



each store, he takes the empty trays for the product that he had put on shelves, and any additional
trays, and carries those trays back to his truck. After cach trip the routeman collects all empty trays
from the bread he just delivered, or had previously delivered, and places them on the truck. (/d. 7
12.) The trays are not stacked in any particular manner. (Def.’s LR Resp. 17.) Upon returning to
the Glendale Heights warehouse, the routeman unloads all empty trays into a pickup area. (Def.’s
LR Stmt. | 14.) The empty trays are stored in Glendale Heights “for between a few hours and
twenty-four hours” and are not processed during that time period. (/d. {| 15.) Other employees later
load all empty bread trays and some empty bun trays back onto the (ruck arriving from LaPorte with
the next day’s orders. (/d. { 14.) Those trays are returned to LaPorte for reuse. (Id.)
Notwithstanding their admission of Defendant’s statement that all empty bread trays are returned to
LaPorte (Def.’s LR Stmt. § 14), Plaintiffs state that “it is belicved believe (sic) that most, if not all
of the empty bread trays that I (sic) unloaded would stay at the Glendale Heights warehouse.” (Pis.’
LR Stmt. | 8.) In support of that statement, Plaintiffs cite the affidavit of plaintiff Kenneth Jones
who states that “on most occasions when I would be loading my truck the next moming, the empty
bread trays I unloaded on the previous afternoon would often still be in the warchouse and | would
re-use them in the morning to load my delivery truck.” (Jones Afft. | 8.) Defendant responds that
Jones’ impression may result from the fact that, because of the pick up schedule of the LaPorte truck,
trays may be stored for a few hours three days per week and for 24 hours two days per week. (Def,’s
Reply at 5; Pearson Decl. 4 9 [dkt#20].) A “tray report” submitted by Defendant reflects that of the
24,960 trays brought to the warehouse by routemen in the week ending June 1, 2002, 90 trays were

not returned to bakeries. (Pcarson Decl., Ex. D.) The tray report also reflects that 6,730 trays were

picked up by driver returning to LaPorte in that weck. (dd.)



making the deliveries, the drivers also collected cmpty beverage conlainers, including aluminum
cans, glass and plastic containers, and returnable or refillable containers such as empty barrels,
bottles and pallets, which they took to the employer’s New York facilities. 7d. The cmpty glass and
aluminum containers were processed by an entity related to the employer and sold to out-of-state
recyclers. Jd. at 220, 224. The returnable and refillable containers were packaged by that related
entity and retumed to the out-of-state brewery, /d. at 220, The Court of Appeals held that the
transportation of thc empties satisfied the requirement for application of thc cxemption, making it
unnecessary to consider whether the distribution of the beverages also met the interstate commerce
requirement. Jd, The court cited the Walling case, among others, in holding that even if a carrier’s
transportation does not cross state lines, the interstate commerce requirement is satisfied ifthe goods
being transported within the borders of one state are involved in a practical continuity of movement
in the flow of interstate commerce. /d. at 223. The court held that the employer had a “fixed and
persisting intent” to return the refillable empties 10 the out-of- state breweries, Jd. at 225.

The court in the Bilyou case cited Foxworthy v, Hiland Dairy Co., 997 F.2d 670, 674 (1 o"
Cir. 1993). In Foxworthy, which was also a private enforcement action, the court held that the
plaintiff's distribution within Oklahoma of dairy products that had been produced in Arkansas had
a continuity of movement in interstate commerce sufficient to invoke the exemption. /d. at 673-74.
In addition, the court held that the plaintiffs transportation of the empty plastic dairy product crates
was sufficient, in itself, 10 support an exemption from the overtime provisions of the FLSA. /d. at
674. In that case, as in the present case, the empty containers (crates) were picked up on a daily

basis, formed a significant portion of the plaintiff's duties, and were shipped promptly to an out-of-

state location Jd.



The exemption is applicable, under decisions of the U.S. Supreme Coun, to those
employees and those only whose work involves engagement in activities consisting
wholly or in part of a class of work which is defined (i) as that of a driver, driver's
helper, loader, or mechanic, and (ii) as directly affecting the safety of operation of
motor vehicles on the public highways in transportation in interstate or foreign
commerce within the meaning of the Motor Carrier Act.
29 C.F.R. § 782.2 (emphasis added).
The MCA was enacted by Congress in 1935:
to promote efficiency, economy, and safety in the motor transportation industry.
Under thc MCA, the Interstate Commerce Commission (“ICC”) was granted
regulatory power over the employees of motor carriers, and motor private carriers.
In 1966, Congress transferred this regulatory power to the Department of
Transportation (“DOT”).
Turk v. Buffets, Inc., 940 F. Supp. 1255, 1258-1259 (N.D. Ill. 1996)(intemnal citations omitted).
The Secretary of Transportation is authorized by the MCA to regulate transportation between
points “. . . in a State and another place in the same State through another State... .” 49 U.S.C. §
13501. Pursuant to 49 U.S.C. § 31502(b), the Secretary “may prescribe requirements for (1)
qualifications and maximum hours of service of employees of, . . . a motor carrier; and (2)
qualifications and maximum hours of service of employees of, . . . a motor private carrier, when
needed to promote safety of operation.” A “motor private carrier” is defined as
aperson, other than amotor carrier, transporting property by motor vehicle when—-{A)
the transportation is as provided in section 13501 of this title; (B) the person is the
owner, lessec, 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
enterprise.
49 U.S.C. § 13102 (13). Plaintiffs do not contest that Defendant is a motor private carricr.

Significantly, the DOT retains its jurisdiction over the employees within the scope of its

authority regardless of whether it has chosen to exercise its regulatory authority, and the overtime



LEGAL STANDARD

The court may properly grant summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact cxists “if the evidence is such that
areasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Thus, “the mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.” 7d. at 252.

DISCUSSION

Under the FLSA, employces arc entitled to overtime pay if they work more than forty hours
a week unless their work is subject to an exemption, 29 U.S.C. § 207(a). Exemptions to the FLSA
are to be narrowly construed against the cmployer. See, e.g., Auer v. Robbins, 519 U.S. 452, 462
(1997). The burden is on the employer to show that it is cntitled to an exemption. Klein v. Rush-
Presbyterian-St. Luke's Medical Ctr., 990 F.2d 279, 282-83 (7" Cir. 1993). The FLSA, 29 U.S.C.
§ 213(b)(1), provides an cxcmption to the requirement of overtime pay for employees whosc
qualifications and maximum hours are regulated by the Sccretary of Transportation pursuant to the
Motor Carrier Act (““MCA”\(49 U.S.C. § 13501 ef seg.). Defendant’s motion for summary judgment
argues that Plaintiffs’ employment is subject to that cxemption.

The exemption to the FLSA’s overtime pay requirement is further clarified by regulations

issued by the Department of Labor (“DOL”):



purposes of the FLSA is also a movement in interstate commerce for purposes of the MCA. /d.

Under this enforcement policy it will ordinarily be assumed by the Administrator that

the interstate commerce requirements of the section 13(b)(1) exemption are satisficd

where it appears that a motor carrier employcc is engaged as a driver, driver’ s helper,

loader, or mechanic in transportation by motor vehicle which, although confined to

asingle State, is a part of an interstate movement of the goods or persons being thus

transported so as to constitute interstale commerce within the meaning of the Fair

Labor Standards Act.

Jd. The regulations note that this policy is without prejudice to any rights of employees under section
16(b) of the FLSA (29 U.S.C. § 216(b)). /d. However, as discussed further below, the “practical
continuity of movement” test set out in the Walling case is also applied in the context of a private
enforcement action under § 216(b).

Defendant argues that the undisputed facts establish the requisite continuity of movement in
the movement of bread products (tom LaPorte, Indiana to Hlinois, and in the movement of empty
bread trays, including their return from Illinois to LaPorte. Because the facts necessary to prove the
exemption are established with respect to the empty bread trays, it is not necessary to rcach the issue
of whether (here would also be sufficient continuity of movement regarding the bread products.

Defendant argues that the factual situation regarding the bread trays is indistinguishable from
that involved in Bilyou vy, Duchess Beer Distributors, Inc., 300 F.3d 217, 224 (2TM Cir. 2002). in that
case, the Court of Appeals affirmed a District Court’s holding in a private enforcement action under
FLSA § 216(b) that beverage distributor drivers who traveled only within the state of New York
were exempt from the FLSA. The employer in that case bought beverages from out-of-state
supphers and breweries, which delivered the beverages to the employer’s warehouse and distribution

center in New York. /d. at 219-20. The plaintiff drivers loaded their trucks at the New York

facilities and made deliveries to customers in New York according to load sheets. Id. at 220. When



Minute Order Forn g097)

Aw

United States District Court, Northern District of Minois

Name of Assigned Judy seraldi Sitting Judge if Ott
ror Magistrate Judge Geraldine Soat Brown than Assigned Judge
CASE NUMBER 02 C 1459 DATE 6/20/2003
CASE Jones vs. Centurion Investment
TITLE

[Inthe following box (a) indicate the party filing the motion, c.g., plain
of the motion being presented.)

MOTION:

[, defendant, 3rd party plaintiff, and (b) state briefly the nature

DOCKET ENTRY:

Doeketing t0 mail notices.
Mail AO 450 form.
docking deputy wis

sagerstd “son
Copy to judge/magistrate judge. suns at
srnorn003

ww coum Zest wy O2 AAT eu =
initiuts

qd) Q Filed motion of | use listing in “Motion” box above.]

(2) q Brief in support of motion due

(3) QO Answer brief to motion duc. . Reply to answer brief due.

(4) im} Ruling/[earing on set for __ at :

(3) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) im} Pretrial conference[held/continued to] [set for/re-set for] on set for at 7

(7) Oo Trial[set for/re-set for] on _ at

(8) o (Bench/Jury trial] [Hearing] held/continued to | __at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to]

CFRCP4(m) ClLocal Rule 41.1 CFRCP41(ay(1) OC FRCP (a)(2).

(io) [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
defendant’s motion for summary judgment [20-1] is granted. All pending dates and motiongare hereby
stricken. Enter Memorandum Opinion and Order. ‘Terminating case.

(i) = [For further detail see Mcmorandum Opinion and Order attached to the original minute order.]

No notices required, advised in open court Document
No notices required Number
ume ot wore

a | Notices mailed by judge’s staff,

SUN 2 3 2003
Notitied counsel by telephone, date docke

“ a
28



the safety of the motor vehicle. See also Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180,
182 (11" Cir, 1991)(finding Opelika controlling). If helping direct a truck onto the highway is a
function relating to the safety of the vehicle, a fortiori, driving the truck is.

The cases relied upon by Plaintiffs, such as Pyramid Motor Freight Corp v. Ispass, 330 U.S.
695 (1947), and Wirtz v. C & P Shoe Corp., 336 F.2d 21 (5" Cir. 1964), involved workers whose
jobs consisted of loading goods onto trucks or directing the loading, See Pyramid, 330 U.S. al 699
0.5; Wirtz, 336 F.2d at 29. In Wirtz, for example, the court observed that the District Court allowed
the exemption as to one employee who drove a truck as often as two or three times as weck, but
properly denicd it as to employees who “occasionally rode the truck with the driver to the retail
stores, and there helped unload the shoes, and with three employees who occasionally, and not as
part of their regular duties, drove a truck.” 336 F.2d al 29. The task of loading may or may not be
sufficiently related to safety of vehicles of interstate commerce, bul it is undisputed that Plaintiffs
here do more than simply load the trucks with empty bread trays. Plaintiffs here actually drive the
trucks on which the bread trays arc loaded as part of the movement of those trays through interstate
commerce,

Plaintiffs’ second argument is that the bread trays are not a ‘good’ because the trays are not
the container that the bread product was originally subsumed in, the trays are not sold by the
Defendant to the purchasers of the brcad product, and the trays are in a perpetual movement with no
final destination. (Pls.’ Resp. at 12-13.) However, Plaintiffs cite no authority applying the standard
they propose. On the contrary, the returnable and refillable barrels and pallets discussed in the
Bilyou case as well as the empty dairy product crates discussed in the Foxworthy case appear to be

analogous to Defendant’s empty bread trays here. In addition, Plaintiffs’ proposed standard is

11


Plaintiffs argue that the transportation of the bread trays does not make their work exempt
from the FLSA for two reasons. First, they argue, the trays pose a de minimis safety considcration.
(Pls. Resp. at 10.) Secondly, Plaintiffs argue that the bread trays are not “goods in commerce” as
required by the MCA. (Pls.’ Resp. at 13.)

Plaintiffs argue that “the lack of any substantial safety issue relative to the goods being
shipped has been recognized by courts as insufficient to cause preemption of the wage and hour
requirements of the FLSA.” (Pls.’ Resp. at 11.) However, as Defendant observes, “Plaintiffs
overlook the fact that they are driving on highways with the trays, and that driving clearly affects
highway safety.” (Def.’s Reply at 4.)

Defendant’s argument is supported by the case law. The Court of Appeals for the Sixth
Circuit has stated, “It would appear to be beyond question that the driver of a common carer vehicle
directly affects the safcty of operation of that vehicle.” Benson v. Universal Ambulance Service, Inc.,
675 F.2d 783, 786 (6" Cir, 1982), As in the current case, the drivers in Benson apparently did not
drive outside of the state, but the defendant was found to operate as a carrier in interstate commerce
because the plaintiffs transported patients to and from airports for interstate travel. Jd. The Court
of Appeals for the First Circuit reached a similar conclusion in Crooker v. Sexton Motors, Inc., 469
F.2d 206, 209 (1 Cir. 1972)(“It is obvious that one who drives a vehicle in interstate commerce
directly affects the safety of such operations as long as he is driving”). Similarly, the Court of
Appeals for the Fifth Circuit held, in Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37,
43 (5" Cir, 1962), that “driver-helpers” who are “on the trucks at all times, and... perform a number
of recurring functions which relate to the safety of the vehicle, such as, loading and unloading cases

of bottles and helping to direct the distribution trucks back onto crowded highways” dircctly affect

10



exemption applies to such employees despite the lack of DOT regulations. Turk, 940 F. Supp. at
1259, citing Southland Gasoline Co. v. Bayley, 319 U.S. 44 (1943) and Levinson v. Spector Motor
Service, 330 U.S. 649 (1947). As a result, “despite the possibly unfair circumvention of FLSA
overtime requirements by some employers, it is the duly of Congress, not this court, to limit the
jurisdiction of the DOT or expand the power of the DOL.” Turk, 940 F.2d at 1261.

Defendant argues that Plaintiffs fall within the MCA exemption to the FLSA even though
they do not drive out of state because Defendant’s bread and trays were shipped from the Indiana
bakery to Illinois stores, and in the casc of the trays, back to Indiana, in a “practical continuity of
movement” so as to constitute transportation in interstate commerce. (Def.’s Mem. at 6.)

The concept of “practical continuity of movement” was described by the Supreme Court in
Walling v. Jacksonville Paper Co., 317 U.S. 564, 569 (1943):

If there is a practical continuity of movement from the manufacturers or suppliers

without the state, through respondent’s warehouse and on to customers whose prior

orders or contracts are being filled, the interstate journey is not ended by reason of

a temporary holding of the goods at the warehouse.

In the Walling case, the Supreme Court was construing the phrase “in [interstate] commerce” as it
is used in the FLSA, where Congress intended to extend federal control to the farthest reaches of the
channels of interstate commerce. /d. at 567. The scope of “transportation in interstate or foreign
commerce” under the MCA, so as to fall within the exemption, is determincd by the MCA and is not
identical with the FLSA’s “in [interstate] commerce.” 29 C.F.R. § 782.7(a). The regulations
observe that the ICC decisions prior to 1966 appear to have construed the MCA more narrowly than

the courts have construed the FLSA. 29 C.F.R. § 782.7(b)(1). However, the DOL interprets the

exemption for regulatory enforcement purposes by assuming that a movement in commerce for



two trucks. (/d. | 6.) One truck travels directly to a warehouse in Glendale Heights, Ilinois. The
other stops at the two Chicago bakcries and then proceeds to Glendale Heights. (/d.) The products
arc unloaded in the Glendale Heights warchouse, where they remain for “no more than several
hours.” (Id. 4 9.)

Plaintiffs are or were employed by Defendant as routemen. (Def.’s LR Stmt. 42.) Routemen
load trucks at the Glendale Heights warehouse and deliver the bread products to stores on their
toutes. (/d. 1] 2, 10.) Of the products the routemen deliver, “[b]etween 33% and 50%" are baked
in LaPorte.” (Def.’s LR Stmt. 7.) Individual loaves are not assigned a particular destination, thus
“a specific loaf of bread loaded on a routeman’s truck could be placed in any of the stores on that
roule if the routeman ordered that variety of loaf.” (Def.’s LR Resp. 2.)

A routeman is responsible for assessing the “needs of each customer on [his] route and
record[ing] orders on a spreadsheet.” (Def.’s LR Stmt. |4.) That spreadsheet is submitted to the
bakeries to determine how much of each type of product should be baked. (/d.) However, “an actual
‘sale’ is made only after the product arrives at the store . . , [N]o store had a standing contract
requiring it to take into its inventory a specific volume or variety of bread product on any particular
day.” (Def.’s LR Resp. 4.) Ifa particular loaf is not sold “it could end up being transferred back
to Glendale Heights as stale product.” (/d. 2.) Defendant admits that if a routeman failcd to sell
all of the product on his truck, money was deducted from his pay. (Jd. 15.)

The bread products are transported on lightweight plastic trays. (/d.4 6.) At the various
stores along his route, the routeman moves product into the store, removes it from the trays and
places it on the shelves or in displays. He might also leave full trays of additional product in storage

areas for later restocking. (Def.’s LR Stmt. 4 1 1.) When the routeman completes his deliveries at


Defendant is entitled to judgment as a matter of law.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgmentis granted. Judgment
is entered for Defendant. This is a final order.

IT IS SO ORDERED.

GERALDINE’SOAT BROWN
United States Magistrate Judge

DATED: June 20, 2003

14



under the FLSA. Plaintiffs’ three-count complaint seeks back pay, interest, liquidated damages, and
attorneys’ fecs for alleged violation of the FLSA. ‘The parties have consented to the jurisdiction of
a Magistrate Judge, [Dkt ## 17, 18.]

Defendant has moved for summary judgment. [Dkt#20.] For the reasons discussed below,

Defendant’s motion is GRANTED.

BACKGROUND

Defendant’s Motion for Summary Judgment was accompanied by a Local Rule 56.1(a)(3)
Statement. [Dkt#20.] Plaintiffs responded with a Local Rule 56,1(b)(3)(b) Statement of Additional
Facts [dkt #28], but no Local Rule 56.1(b)(3)(a) Statement containing “a response to each numbered
paragraph in the moving party’s statement.” Rather, Plaintiffs state in the first sentence of their
response bricf that “as indicated in Plaintiff's (sic) response to Defendant’s LR 56.1 Statement, the
facts of the case arc not disputed.” (Pls.’ Resp. at 1.) Defendant filed a response to Plaintiffs’
additional facts. [Dkt # 32.] The Seventh Circuit recently stated:

Local Rule 56.1's cnforcement provision provides that when a responding party's

statement fails to controvert the facts as set forth in the moving party's statement in

the manner dictated by the rule, those facts shall be deemed admitted for purposes of

the motion. We have consistently held that a failure to respond by the nonmovant as

mandated by the local rules results in an admission.
Smith v. Lamz, 321 F.3d 680, 683 (7 Cir. 2003)(citation omitted). As a result, all facts in
Defendant’s Local Rule 56.1(a)(3) Statement arc deemed admitted.

Defendant is a wholesaler of bread products. Defendant bakes all of its bread and some buns

ina facility in LaPorte, indiana. (Def.’s LR Stmt. 43.) Some buns are baked in two other facilitics

located in Chicago. (/d.) Baked goods from the LaPorte, Indiana facility are “generally” loaded on



UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF ILLINOIS:
EASTERN DIVISLON

| we,

sow?

KENNETH JONES, et al., )
Plaintiffs, ) Cause No. 02 C 1459

)

v. ) Magistrate Judge Geraldine Soat Brown
)
CENTURION LNVESTMENT )
ASSOCIATES, INC., )
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Kenncth Jones and Leonard Liddell (‘Plaintiffs’) brought this action against
Centurion Investment Associates, Inc. d/b/a Service Distributors! (“Defendant”), alleging causes of
action under the Fair Labor Standards Act (“FLSA”)(29 U.S.C. § 201 et seq.) and the Portal to Portal

Act (29 U.S.C. § 251 et seg.)(Compl. { 1). Plaintiffs allege that they are entitled to overtime pay

' Defendant states that its proper name is Alpha Baking Co., Inc. and that it has been
incorrectly named in the lawsuit. (See, e.g., Def.’s LR Stmt, at 1.) Defendant states that Service
Distributors is an assumed name used by Alpha Baking. (Def.’s Mem. at 1; Def.’s LR Stmt. at 1.)
In his declaration submitted by Defendant, Jeff Pearson states that Service Distributors is a
“subsidiary” of Alpha Baking (Pearson Decl. 4 9 [dkt # 20]), but this assertion is not made
elsewhere.

This appears to be a case of misnomer. ““Misnomer’ denotes the case in which the plaintiff
has the wrong name of the right parly, while in a case of mistaken identity the plaintiff has named
the wrong party.” Athmer v. CEI. Equipment Co. Inc., 121 F.3d 294, 296 (7" Cir. 1997). Normally,
in the case of a misnomer, a party seeks to amend pursuant lo Fed. R. Civ. P. 15(c)(3). See, e.g.,
Wood y. Worachek, 618 F.2d 1225, 1229 (7" Cir. 1980) (“amendment with relation back is generally
permitted in order to correct a misnomer of a defendant where the proper defendant is already belore
the court and the effect is merely to correct the name under which he is sued.”) In this case,
however, neither party has moved to correct the alleged misnomer. However, in light of the outcome
of Defendant’s motion, the misnomer is not of practical significance because it is not disputed that
the proper defendant is before the court. See English v. Cowell, 969 F.2d 465, 468 n.6 (7" Cir.
1992)(declining to dismiss case on the basis of alleged misnomer of plaintiff because “the defendants
do not claim that they have been confused or otherwise prejudiced”).

1



contrary to the decision in the Opelika case. In that case, the cmployer owned its own botiles. 299
F.2d at 39, The employer transported full bottles from the bottler, to the warehouse, to the retailer,
and then, when empty, from the retailcr to the warehouse, to the bottler. /d. The Court of Appeals
agreed with the District Court that a basis for the application of the FLSA could be found in the in
the movement of the empty bottles as “goods in commerce.” Jd. at 40. Although the court was
considering “goods in commerce” for purposes of the FLSA, the court had no problem finding that
the bottles were “goods whether they be empty or full.” 7d.

The bread trays are in a practical continuity of movement between the Chicago stores and the
Indiana bakery. “Whether the transportation is of an interstate nature can be “determined by
reference to the intended final destination’ of thc transportation when that ultimate destination was
envisaged at the time the transportation commenced.” Bilyou, 300 F.3d at 223-24 (quoting Project
Hope v. M/V Ibn Sina, 250 F.3d 67, 74 (2TM Cir. 2001)). “‘[C]rucial to a determination of the
essential character of a shipment is the shipper’s fixed and persisting intent at the time of shipment.’””
Foxworthy, 997 F.2d at 672 (quoting Intl. Bd. of Teamsters, Chauffeurs, Warchousemen & Helpers
v. Interstate Commerce Commission, 921 F.2d 904, 908 (9"" Cir. 1990)). The temporary pause of
the bread trays at the Glendale Heights warehouse does not mean that (hey are no longer in interstate
commerce. Walling, 317 US. at 568.

In a summary judgment motion, the initial burden is on the moving party to demonstrate,
“with or without supporting affidavits,” the absence of a genuine issue of material fact and that
judgment as a matter of law should be granted in the moving party’s favor. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has met the initial burden, the opposing party

must support its contentions with admissible evidence and may not rest upon the mere allegations

12