Hugler v. Devilbiss Landscapr Architects Inc., et al

MOTION to Dismiss for Failure to State a Claim or in the Alternative for Summary Judgment, with Certificate of Service -

D. Del.June 12, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _________________________________________ EDWARD C. HUGLER, ACTING ) SECRETARY OF LABOR, UNITED ) STATES DEPARTMENT OF LABOR ) ) Plaintiff, ) Civil Action No. 17-00354-GMS ) v. ) ) DEVILBISS LANDSACPE ) ARCHITECTS, INC., a corporation ) d/b/a DEVILBISS LANDSCAPE ) ARCHITECTS, and PAUL DEVILBISS, ) ) Defendants ) ) DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(d), Defendants DeVilbiss Landscape Architects, Inc. and Paul DeVilbiss (collectively “DeVilbiss”) respectfully move to dismiss Plaintiff’s Complaint for failure to state a claim, or in the alternative, for summary judgment, for the reasons set forth in the accompanying Memorandum of Points and Authorities and attached Exhibits. Dated: June 12, 2017 /s/ Frank E. Noyes, II Frank E. Noyes, II (Del ID 3988) Offit Kurman, P.A. 1201 N. Orange St., 7th Floor Wilmington, DE 1980 (302) 573-2307 Attorneys for Defendants DeVilbiss Landscape Architects, Inc., and Paul DeVilbiss Case 1:17-cv-00354-GMS Document 7 Filed 06/12/17 Page 1 of 3 PageID #: 21 2 OF COUNSEL: Wendel V. Hall Hall Law Office, PLLC 1200 G Street, N.W. Suite 800 Washington, D.C. 20005 (202) 661-2173 4811-2718-9578, v. 1 Case 1:17-cv-00354-GMS Document 7 Filed 06/12/17 Page 2 of 3 PageID #: 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _________________________________________ EDWARD C. HUGLER, ACTING ) SECRETARY OF LABOR, UNITED ) STATES DEPARTMENT OF LABOR ) ) Plaintiff, ) Civil Action No. 17-00354-GMS ) DEVILBISS LANDSACPE ) ARCHITECTS, INC., a corporation ) d/b/a DEVILBISS LANDSCAPE ) ARCHITECTS, and PAUL DEVILBISS ) ) Defendants ) ) CERTIFICATE OF SERVICE I, Frank E. Noyes, II, Esquire, hereby certify that on the date set forth below I served a true and correct copy of Defendants’ Motion to Dismiss, or in the Alternative, for Summary Judgment, with accompanying Memorandum of Points and Authorities and Exhibits, by e- mail only on the below listed counsel. Nicholas C. Geale Oscar L. Hampton III Elspeth L. Doskey U.S. Department of Labor Office of the Solicitor, Region III Suite 630E, The Curtis Center 170 S. Independence Mall West Philadelphia, Pennsylvania 19106-3306 Email: Doskey.Elspeth.L@dol.gov Dated: June 12, 2017 _/s/ Frank E. Noyes Frank E. Noyes, II Offit Kurman, P.A. 1201 N. Orange Street, 7th Floor Wilmington, Delaware 19801 (302) 573-2307 Email: fnoyes@offitkurman.com Case 1:17-cv-00354-GMS Document 7 Filed 06/12/17 Page 3 of 3 PageID #: 23 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ R. ALEXANDER ACOSTA, ) SECRETARY OF LABOR, UNITED ) STATES DEPARTMENT OF LABOR ) ) Plaintiff, ) ) v. ) Civil Action No. 17-00354-GMS ) DEVILBISS LANDSACPE ) ARCHITECTS, INC., a corporation ) d/b/a DEVILBISS LANDSCAPE ) ARCHITECTS, and PAUL DEVILBISS ) ) Defendants ) ) DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT I. INTRODUCTION DeVilbiss Landscape Architects, Inc. and Paul DeVilbiss (“DeVilbiss”) ask the Court to dismiss, or in the alternative, grant summary judgment as to Plaintiff’s Complaint. Plaintiff Secretary of Labor sued DeVilbiss to recover allegedly unpaid overtime premiums for ten (10) workers. However, the Complaint fails to state a claim for which relief may be granted because DeVilbiss’s workers were employed in agriculture, and therefore DeVilbiss was not required to pay them overtime premiums. See 29 U.S.C. §§ 203(f); 213(b)(12); Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755 (1949); Donovan v. Marrero, 695 F.2d 791 (3rd Cir. 1982). Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 1 of 8 PageID #: 24 2 II. STATEMENT OF FACTS DeVilbiss is a landscape architect. Its business model is to grow a variety of ornamental plants and to use those plants in designs for its customers. DeVilbiss cultivates all the ornamental plants it uses in its designs. To ensure that its designs and installations are the best, DeVilbiss has to have plants that meet certain specifications. To get those plants, DeVilbiss raises them itself. Whether the plant is a fast-growing Hosta (one month or so to maturity) or a tree (2+ years), DeVilbiss does not use a plant in one of its designs that it has not substantially grown out. Every plant that it purchases undergoes substantial growth and cultivation before being used in a design. This guarantees that DeVilbiss has the precise plants with the characteristics needed for the job at hand. See Declaration of Paul DeVilbiss, attached hereto as Exhibit 1, and incorporated herein by reference, at ¶ 3. III. ARGUMENT A. Legal Standards. This Court has stated that “[t]he purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint, not to resolve disputed facts or decide the merits of the case. . . . A motion to dismiss may be granted only if, after accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief.” See Johnson v. State/DOL, No. 12-653-GMS, 2014 U.S. Dist. LEXIS 106149, at *6 (D. Del. Aug. 1, 2014). Accepting “well-pleaded allegations” as true, however, does not mean that the Court has an obligation to strain to find a way to sustain the Complaint. In fact, the Supreme Court has cautioned that it would be improper to do so. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983) (“[I]t is not . . . proper to assume [plaintiff] Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 2 of 8 PageID #: 25 3 can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” The Court takes the Complaint as it finds it. Judged by this standard, the Secretary’s Complaint fails to state a claim upon which relief may be granted. B. Section 213(b)(12) Of The FLSA Exempts DeVilbiss From Having To Pay Overtime. The Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), provides a general mandate that all covered, non-exempt employees receive an overtime premium for each hour worked above 40 in a single work week. See 29 U.S.C. § 207(a). However, Section 213(b)(12) establishes an exemption to that rule for any person “employed in agriculture.” See 29 U.S.C. § 213(b)(12). The Complaint alleges that DeVilbiss’ workers do not fall within this exemption, Complaint, ¶ 6. Agriculture is defined broadly to include “farming in all its branches and among other things includes the cultivation . . . and harvesting of any . . . horticultural commodities.” See 29 U.S.C. § 203(f). Horticulture is “[t]he science and art of growing fruits, vegetables, and flowers or ornamental plants.” Walling v. Rocklin, 132 F.2d 3, 6 (8th Cir. 1942) (citation and quotation marks omitted). Thus, “[t]he agricultural exemption [from overtime] extends to . . . employees of a nurseryman who raised the nursery stock, when they plant the stock on private or public property, trim, spray, brace, and treat the planted stock, or perform other duties incidental to its care and preservation.” Solis v. Conley's Nursery & Landscaping, Inc., 641 F. Supp. 2d 1200, 1206 (D.N.M. 2009) (citation omitted). There is no dispute that DeVilbiss cultivates horticultural commodities; the Complaint takes this fact as an unstated premise. See Complaint, ¶ 6 (denying that handling tools is agriculture negating otherwise applicable exemption). See DeVilbiss Decl., ¶ 3. The legal sufficiency of the Complaint rests on the claim that § 213(b)(12) exemption is inapplicable. See Complaint, ¶ 6. The only allegation purporting to support that claim is that the Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 3 of 8 PageID #: 26 4 workers allegedly routinely handle tools and other growers’ product (e.g., a seedling before it is substantially grown out). Id. According to the Complaint, using these tools is not “agriculture” thereby negating the exemption. The Complaint, however, does not deny that the workers cultivated horticultural commodities or, at the very least, did work that (but for the handling of the tools listed in Paragraph 6) was “in conjunction with or incident to” the cultivation of horticultural commodities, here, ornamental plants. The FLSA’s definition of agriculture includes both a “primary” agricultural component and a secondary agricultural component. DeVilbiss’ cultivation of horticultural products ornamental plants is “primary” agriculture. See 29 U.S.C. § 203(f); Adkins v. Mid-Am. Growers, Inc., 167 F.3d 355, 356-57 (7th Cir. 1999). Secondary agriculture encompasses all activities “in conjunction with or incident to” primary agriculture performed by the grower’s employees. See Donovan v. Marrero, 695 F.2d 791, 794 (3rd Cir. 1982). The premise of the Complaint is that any time a worker handles something deemed “non- agricultural,” the § 213(b)(12) agricultural exemption is lost. See Complaint, ¶ 6. At the Secretary’s urging, the Third Circuit rejected this theory in Marrero. In Marrero, the Court held that workers who spent all their time handling (shoveling, packing) mushroom compost were employed in agriculture, even though mushroom compost had previously been held to be a manufactured product and thus was not itself “agricultural.” Marrero, 695 F.2d at 795: see also Donovan v. Frezzo Brothers, Inc., 678 F.2d 1166, 1167 (3d Cir. 1982). The Marrero Court agreed with the Secretary’s position in that case that the workers’ activities were “agricultural” under the FLSA (29 U.S.C. § 203(f)) because the compost handling occurred in conjunction with, or as an incident to, mushroom farming. Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 4 of 8 PageID #: 27 5 Marrero requires dismissal of the Complaint. The Secretary does not allege – nor could he – that DeVilbiss’ activities are not “in conjunction with or incident to” the raising of horticultural commodities – ornamental plants. Following Marrero, so long as those activities are at the very least in conjunction with or incident to horticulture or if they spend all their time handling a manufactured product, what tools they use to get the job done or what they work on is irrelevant to the availability of the § 213(b)(12) exemption. If the Secretary’s position were adopted, it would eviscerate the agricultural exemption. Under the Secretary’s theory alleged in this case, a wheat farmer using a combine to harvest would have to pay overtime because he or she routinely handles a manufactured product. Similarly, a corn farmer would lose the exemption if its workers applied pesticides or herbicides since those are decidedly non-agricultural. Yet, the farmers in these hypotheticals are clearly exempt. See Maneja v. Waialua Agric. Co., 349 U.S. 254, 263 (1955) (mechanics) (“By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agriculture exemption.”); id., at 263 (railroad employees hauling agricultural product from fields); Sariol v. Fla. Crystals Corp., 490 F.3d 1277, 1279 (11th Cir. 2007) (“Flying a crop-dusting airplane, cooking for field workers, or even clerical work can be considered agriculture for purposes of the exemption if done by a farmer or on a farm and incidentally or in conjunction with such farming operations.”); Brennan v. Sugar Cane Growers Coop., 486 F.2d 1006, 1010-11 (5th Cir. 1973) (“[W]e conclude that the work done by the cooks and attendants in this case is "on a farm" for purposes of the agricultural exemption.”) It is difficult to think of any agricultural activity that does not involve the routing handling of non-agricultural items. The Secretary’s allegations are insufficient as a matter of law to negate the agricultural exemption. The Complaint’s overtime allegations should be dismissed. Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 5 of 8 PageID #: 28 6 C. DeVilbiss Kept Records As Required By 29 C.F.R. §§ 516.2(a)(8) & (9). The Complaint also asserts that DeVilbiss allegedly failed to keep complete payroll or other records. Specifically, the Complaint alleges that DeVilbiss did not comply with 29 C.F.R. §§ 516.2(a)(8) & (9). These sections provide: Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply: . . . (8) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation, (9) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under paragraph (a)(8) of this section[.] See Complaint, ¶ 7. DeVilbiss’ records contain all of the required information. See DeVilbiss Decl., ¶ 5 (attaching true and correct copies of selected payroll reports during the period identified in the Complaint, which have been redacted to obscure confidential and non-relevant information) ). The Secretary has failed to state a claim for recordkeeping violations. A review of the applicable records1 shows that each contains the information required by § 516.2(a)(8). The records for the workers listed in Schedule A to the Complaint show the total weekly hours and earnings for each workweek. See DeVilbiss Decl., ¶ 5. There is no recordkeeping violation as to § 516.2(a)(8). Nor is there a recordkeeping violation as to § 516.2(a)(9). It appears that the Secretary’s theory is that since DeVilbiss was purported required to pay overtime and did not record the amount of overtime that it allegedly should have paid, DeVilbiss violated § 516.2(a)(9). The 1 Federal Rule of Civil Procedure 10(c) authorizes this Court to review them without converting this motion into one for summary judgment. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 6 of 8 PageID #: 29 7 regulation requires the records to convey the amount of overtime premium that DeVilbiss paid, if it paid one. The records do that – zero. The Secretary reviewed the records and learned that DeVilbiss paid no overtime premium. The information that the Secretary wanted was fully and straightforwardly communicated. DeVilbiss’ records provide the information required – how much premium pay each employee received for overtime hours - zero. Whether DeVilbiss was correct or not (and it was correct) in not paying an overtime premium is a separate matter. The records contain the required information. The Complaint fails to state a claim that DeVilbiss failed to keep the required records. IV. CONCLUSION The Complaint should be dismissed. The Secretary asserts that DeVilbiss per se may not invoke the § 213(b)(12) exemption from overtime its workers allegedly routinely handle non- agricultural products. The Secretary’s per se rule was rejected the Third Circuit in Marrero and, if adopted here, would nullify the agricultural overtime exemption. Because DeVilbiss’ workers cultivated horticultural products and performed other duties that were incident to or in conjunction with DeVilbiss’ cultivation and installation of those products, 29 U.S.C. § 213(b)(12) exempts DeVilbiss from paying those workers an overtime premium. As for DeVilbiss’ recordkeeping, it complied with the applicable regulations. For the foregoing reasons and such others as may appear to the Court, DeVilbiss respectfully requests that this Court dismiss the Complaint with prejudice. Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 7 of 8 PageID #: 30 8 Dated: June 12, 2017 /s/ Frank E. Noyes, II Frank E. Noyes, II (Del ID 3988) Offit Kurman, P.A. 1201 N. Orange St., 7th Floor Wilmington, DE 1980 (302) 573-2307 Attorneys for Defendants DeVilbiss Landscape Architects, Inc., and Paul DeVilbiss OF COUNSEL: Wendel V. Hall Hall Law Office, PLLC 1200 G Street, N.W. Suite 800 Washington, D.C. 20005 (202) 661-2173 4821-3558-5610, v. 4 Case 1:17-cv-00354-GMS Document 7-1 Filed 06/12/17 Page 8 of 8 PageID #: 31 EXHIBIT 1 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 1 of 40 PageID #: 32 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 2 of 40 PageID #: 33 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 3 of 40 PageID #: 34 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 4 of 40 PageID #: 35 EXHIBIT A Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 5 of 40 PageID #: 36 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 6 of 40 PageID #: 37 EXHIBIT B Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 7 of 40 PageID #: 38 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 8 of 40 PageID #: 39 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 9 of 40 PageID #: 40 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 10 of 40 PageID #: 41 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 11 of 40 PageID #: 42 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 12 of 40 PageID #: 43 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 13 of 40 PageID #: 44 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 14 of 40 PageID #: 45 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 15 of 40 PageID #: 46 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 16 of 40 PageID #: 47 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 17 of 40 PageID #: 48 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 18 of 40 PageID #: 49 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 19 of 40 PageID #: 50 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 20 of 40 PageID #: 51 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 21 of 40 PageID #: 52 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 22 of 40 PageID #: 53 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 23 of 40 PageID #: 54 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 24 of 40 PageID #: 55 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 25 of 40 PageID #: 56 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 26 of 40 PageID #: 57 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 27 of 40 PageID #: 58 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 28 of 40 PageID #: 59 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 29 of 40 PageID #: 60 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 30 of 40 PageID #: 61 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 31 of 40 PageID #: 62 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 32 of 40 PageID #: 63 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 33 of 40 PageID #: 64 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 34 of 40 PageID #: 65 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 35 of 40 PageID #: 66 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 36 of 40 PageID #: 67 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 37 of 40 PageID #: 68 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 38 of 40 PageID #: 69 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 39 of 40 PageID #: 70 Case 1:17-cv-00354-GMS Document 7-2 Filed 06/12/17 Page 40 of 40 PageID #: 71 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _________________________________________ EDWARD C. HUGLER, ACTING ) SECRETARY OF LABOR, UNITED ) STATES DEPARTMENT OF LABOR ) ) Plaintiff, ) Civil Action No. 17-00354-GMS ) v. ) ) DEVILBISS LANDSACPE ) ARCHITECTS, INC., a corporation ) d/b/a DEVILBISS LANDSCAPE ) ARCHITECTS, and PAUL DEVILBISS, ) ) Defendants ) ) ORDER GRANTING MOTION TO DISMISS AND NOW, this ___ day of ________, 2017, upon consideration of Defendants’ Motion to Dismiss or in the Alternative, for Summary Judgment, and any response thereto, it is hereby ORDERED that Defendants’ Motion is GRANTED and the Complaint is Dismissed with Prejudice. Dated: _______________ ________________________ Gregory M. Sleet United States District Judge 4812-1376-2634, v. 1 Case 1:17-cv-00354-GMS Document 7-3 Filed 06/12/17 Page 1 of 1 PageID #: 72