IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORNELIUS SMITH, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0107-WS-B

 )

WERNER ENTERPRISES, INC., ) 

 )

Defendant. )

 ORDER

This matter is before the Court on the parties’ motions for partial summary 

judgment. (Docs. 86, 93). The parties have filed briefs and evidentiary materials 

in support of their respective positions, (Docs. 87-89, 94-95, 99-100, 107-08), and 

the motions are ripe for resolution. This order addresses only the issue, made a 

basis of the plaintiffs’ motion, of whether the plaintiffs are exempt employees; 

other issues will be addressed in subsequent orders. After careful consideration, 

the Court concludes that the plaintiffs’ motion as to this issue is due to be granted.

BACKGROUND

This is the second FLSA action brought by plaintiffs employed by the 

defendant to provide certain trucking services to a non-party (“Boise”) that 

operates a paper mill in Jackson, Alabama. See Pritchett v. Werner Enterprises, 

Inc., Civil Action No. 12-0182-WS-C. In Pritchett, as here, the defendant claimed 

the benefit of the Motor Carrier Act (“MCA”) exemption. In August 2013, the 

Court denied the defendant’s motion for summary judgment on this issue. 

Pritchett v. Werner Enterprises, Inc., 2013 WL 4524337 (S.D. Ala. 2013). In 

December 2013, the Court denied the defendant’s second motion for summary 

judgment on the issue and granted the plaintiffs’ competing motion for summary 

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judgment, holding that “[t]he MCA exemption does not apply in this case.” 

Pritchett v. Werner Enterprises, Inc., 2013 WL 6909892 at *8 (S.D. Ala. 2013). 

The plaintiffs herein seek to replicate that success, while the defendant apparently 

hopes that third time’s a charm. 

DISCUSSION

Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 

608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

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477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced. 

The FLSA generally requires payment of time-and-a-half for hours in 

excess of 40 in a workweek. 29 U.S.C. § 207(a)(1). But “[t]he provisions of 

section 207 of this title shall not apply with respect to ... any employee with 

respect 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 ....” Id. § 213(b)(1). This provision is known as “the Motor 

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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Carrier Act exemption.” Abel v. Southern Shuttle Services, Inc., 631 F.3d 1210, 

1211 (11th Cir. 2011). 

“We construe FLSA exemptions narrowly against the employer,” and “[t]he 

employer has the burden to show that an exemption applies.” Abel, 631 F.3d at 

1212. Indeed, the employer must establish the exemption “by clear and 

affirmative evidence.” Gregory v. First Title of America, Inc., 555 F.3d 1300, 

1302 (11th Cir. 2009) (internal quotes omitted). 

“There are two requirements for an employee to be subject to the motor 

carrier exemption.” Walters v. American Coach Lines, Inc., 575 F.3d 1221, 1227 

(11th Cir. 2009). “First, his employer’s business must be subject to the Secretary 

of Transportation’s jurisdiction under the MCA.” Id. “Second, the employee’s 

business-related activities must directly affect the safety of operation of motor 

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.” Id. 

(internal quotes omitted); accord 29 C.F.R. § 782.2(a). The plaintiffs concede 

that the first element is satisfied. (Doc. 94 at 6).

The following facts concerning the physical layout of Boise’s Jackson 

operation are uncontroverted. It includes three physically separated facilities, 

consisting of a base mill, a sheeter facility, and a warehouse. The base mill site 

includes two paper machines (J-1 and J-3) and a recycle facility. The sheeter 

facility site includes the sheeter facility along with a trailer yard and loading 

docks, where trailers are loaded with product for delivery to customers. 

Communication among the three facilities is by public road, specifically, Industrial 

Parkway. The sheeter facility site is about 21⁄2 miles away from the base mill, with 

the warehouse another 1⁄4 mile from the sheeter facility. 

The following facts concerning Boise’s production process are 

uncontroverted. Boise creates paper from pulp on its J-1 and J-3 machines, the 

paper leaving the machines in the form of “jumbo rolls.” The jumbo rolls are so 

heavy they are transported to the sheeter facility in 40-foot containers (mounted on 

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removable chassis) specially modified with an additional steel floor and so large 

that only eight of them can fit on a load. The sheeter facility holds four machines, 

each of which takes six jumbo rolls at a time and feeds them through the machine, 

where a rolling knife cuts the paper to the correct size. There are varying sizes 

into which the machines cut the paper to make copy paper, printing paper, and 

other types of communication paper. The cut paper is stacked in 500-sheet reams, 

wrapped, and placed in cartons. The cartons are then stacked on pallets and 

wrapped. During this process, if Boise determines there is a section of paper that 

has wrinkles or some defect, “that roll is dumped and not made into paper.” Boise 

considers the steps that occur at the sheeter facility to be “part of the production 

process for copy paper,” and it does not consider the jumbo rolls to constitute 

finished paper.

The defendant considers four forms of movement to constitute 

transportation of property in interstate commerce for purposes of the MCA 

exemption: (1) the movement of jumbo rolls from the base mill to the sheeter 

facility; (2) the movement of scrap paper from the sheeter facility to the base mill; 

(3) the movement of scrap paper and pulp to and from Jackson and Mobile; and 

(4) the movement, within the sheeter facility grounds, of trailers loaded with 

outbound paper. (Doc. 99 at 11-17). 

The defendant relied on the first and fourth of these categories in Pritchett, 

raising substantively the same arguments and citing essentially the same 

authorities as it presents herein. These fare no better in 2015 than they did in 

2013. The Court rejects the defendant’s position for the reasons it expressed 

previously. Pritchett, 2013 WL 6909892 at *3-8. 

The defendant also relied on the third of these categories in Pritchett, at 

least initially. The Court rejected the defendant’s argument because its evidence 

reflected, at best, the occurrence of four trips to Mobile to retrieve pulp that had 

moved in interstate commerce, “by two plaintiffs (out of twelve), during one week 

(out of at least 156 covered by the plaintiffs’ affidavits).” 2013 WL 4524337 at 

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*7. The defendant abandoned this line of attack on its second motion for summary 

judgment. 2013 WL 6909892 at *3 & n.2. 

The defendant’s evidence in this case is even weaker than in Pritchett. The 

defendant identifies a grand total of three trips to Mobile to retrieve pulp, by two 

plaintiffs (out of thirteen), occurring at indeterminate times over a multi-year 

period. (Doc. 99 at 5 n.28). Worse, the defendant lacks “clear and affirmative 

evidence” that this pulp had traveled in interstate commerce before reaching 

Mobile.2 And while the defendant has evidence that one plaintiff delivered scrap 

paper to Mobile on “countless” occasions, (id.), it has no evidence that this 

material then moved outside the state.

The defendant is thus limited to the second category: the movement of 

scrap paper from the sheeter facility to the base mill.3 Alone among the 

defendant’s arguments, this one is not a retread. The defendant offers evidence 

from four plaintiffs that they engaged in such transport, (Doc. 99 at 4 n.22), and it 

offers evidence that Boise’s Jackson operation received such paper from out-of-

 2 The defendant cites a Boise representative for the proposition that pulp retrieved 

in Mobile from Georgia-Pacific “could” have originated outside the state, which on its 

face is inadequate to meet the defendant’s stringent burden. Moreover, the defendant

ignores the witness’s testimony that Georgia-Pacific only rarely supplied Boise with pulp 

from outside Alabama. 2013 WL 4524337 at *7 n.18. The defendant’s statement in 

brief that pulp retrieved from Mobile “often” came from outside Alabama, (Doc. 99 at 5), 

lacks any support in the record. While the defendant cites its Exhibit 13 for this 

proposition, that exhibit addresses only the shipment of “wastepaper to Jackson AL,” not 

the shipment of pulp to Mobile. (Doc. 99-13 at 3).

3 In its statement of facts, the defendant asserts that some of this scrap paper was 

rejected at the base mill and transported back to the sheeter facility for pick-up by overthe-road drivers. (Doc. 99 at 4-5). In its argument, the defendant does not assert that this 

movement is relevant to the exemption analysis. In any event, the defendant identifies no 

evidence that the rejected scrap paper, once picked up at the sheeter facility, was taken 

out of state. 

Similarly, in its statement of facts, the defendant asserts that some of this scrap 

paper was moved from the sheeter facility to the warehouse. (Doc. 99 at 4). The 

defendant’s argument, however, is limited to movement from the sheeter facility to the 

base mill. (Id. at 14-15). 

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state sources on over 800 occasions from 2011 to 2014. (Id. n.23). The defendant 

laconically suggests that this material remained property in interstate commerce 

until coming to rest at the base mill, under the “practical continuity of movement” 

standard expressed in Walters v. American Coach Lines, Inc., 575 F.3d 1221, 1227 

(11th Cir. 2009). (Doc. 99 at 14). 

The problem is that, as the defendant concedes, “[i]n determining whether 

goods are transported as a practical continuity of movement in interstate 

commerce, courts look at the shipper’s ‘fixed and persisting intent’ at the time of 

the shipment.” (Doc. 99 at 10-11 (quoting Mena v. McArthur Dairy, LLC, 352 

Fed. Appx. 303, 305-06 (11th Cir. 2009)).4 The defendant, however, has not even 

identified the shipper or shippers of the various shipments of scrap paper, much 

less offered any evidence that the fixed and persisting intent of the shipper 

(whether Boise, the seller, or some other person or entity) at the moment of 

shipment was that the scrap paper would remain in interstate commerce until 

received at the base mill. 

In sum, each of the defendant’s arguments in favor of the MCA 

exemption’s applicability is factually and/or legally bankrupt. The plaintiffs thus 

are entitled to partial summary judgment on the exemption issue.

CONCLUSION

For the reasons set forth above, the plaintiffs’ motion for summary 

judgment as to the MCA exemption is granted. The MCA exemption does not 

 4 An agency policy statement relied on by the defendant herein and in Pritchett

addresses the precise question of how to determine whether the intra-state movement of 

goods, after they have crossed state lines and been stored in a warehouse or distribution 

center, is movement in interstate commerce. Consistent with the defendant’s position, it 

establishes that “[t]he essential and controlling element in determining whether the traffic 

is properly characterized as interstate is whether the shipper has a ‘fixed and persisting 

intent’ to have the shipment continue in interstate commerce to its ultimate destination,” 

which intent must exist “at the time of shipment.” Motor Carrier Interstate 

Transportation – From Out-of-State Through Warehouses to Points in the Same State, 57 

Fed. Reg. 19812 (May 8, 1992). 

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apply in this case. This ruling governs all further proceedings in this action, 

including trial.

DONE and ORDERED this 20th day of July, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

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