United States District Court, D. Maryland
DAVID COPPERTHITE MAGISTARATE JUDGE.
Defendants. Michael W. DiCarlo and Riverside Pub & Grille
Inc., have filed a renewed motion for judgment as a matter of
law pursuant to Rule 50(b) of the federal Rules of Civil
Procedure as a result of a jury verdict against them on May
3, 2017. The verdict in favor of Plaintiff was awarded after
a two day jury trial. The Defendants having timely filed
their Motion, briefs having been submitted and reviewed, and
the testimony of the two critical witnesses. Michael Mitchell
and Michael W. DiCarlo having been reviewed, no further
hearing is necessary For the reasons set forth below, the
Defendants' Motion for Judgment as a Matter of Law as to
Counts I and II is GRANTED.
Plaintiff brought this five count indictment alleging he was
not paid overtime wages he earned as a cook for the Riverside
Pub and Grille. The first two counts were presented as
violations of the Fair Labor Standards Act ("FLSA")
. 29 U.S.C. Sec. 201. et seq., counts three and four
alleged violations of the corollary Maryland Wage and Hour
Law, Md. Code Ann. Labor and Employment Article, Sec. 3-401.
et seq., and count live which consisted of a
violation of the Man land Wage Payment and Collection Act,
Md. Code Ann.. Maryland Labor and Employment Article. Sec.
3-501. et seq., After a day and a half of testimony,
the jury found for Plaintiff on Counts one through four, and
awarded Plaintiff $141.00 for compensator! damages and
$141.00 for liquidated damages.
conclusion of the Plaintiffs case. Defendant's case and
post-verdict. Defendants argued for judgment as a matter of
law on Counts One and Two. Defendants argued that Plaintiff
failed to produce any evidence with respect to the
jurisdictional requirements of an employer engaged in
commerce and an employer who grossed more than $500, 000 in
sales per year. Defendants are correct.
trial. Plaintiff called only one witness, himself, to
testify. He testified that he would occasionally, (with no
specificity) order goods from vendors out of state. Plaintiff
never called a representative from Defendants to testify as
to the interstate nexus or the amount of gross sales required
under the FLSA. Plaintiffs testimony that he occasionally
ordered goods from out of state vendors is insufficient proof
of the interstate nexus requirement under the FLSA. Plaintiff
never developed that line of questioning or solicited
sufficient information to show that Plaintiff was engaged as
an employee in interstate commerce.
STANDARD OF REVIEW
Renewed Motion for Judgment as a Matter of Law
standard for granting a renewed motion for judgment as a
matter of law. pursuant to Rule 50(b) of the Federal Rules of
Civil Procedure, is precisely the same as the standard for
granting the motion prior to the submission to the jury.
See Wright and Miller 9A federal Practice and
Procedure 2d § 2537. The United States Court of Appeals
for the Fourth Circuit has noted that a court should not
"disturb a jury verdict "unless without weighing
the evidence or assessing witness credibility, [it]
conclude[s] that reasonable people could have returned a
verdict" only for the moving party." Randall v.
Prince George's County. Mil., 302 F.3d 18X. 201 (4th
Cir.2002) (quoting Cooper v. Dyke, 814 I'.2d
941, 944 (4th Cir.1987)). "If a reasonable jury could
reach only one conclusion based on the evidence or if the
verdict in favor of the nonmoving party would necessarily be
based upon speculation and conjecture, judgment as a matter
of law must be entered." Myrick v. Prime Ins.
Syndicate. Inc., 395 F.3d 485. 489 (4th Cir.2()()5)
(citing Crinkley v. Holiday Inns. Inc.. 844
I'.2d. 156. 160 (4th Cir.1988)). This Court must view the
evidence in the light most favorable to the Plaintiff, and
the Plaintiff receives the benefit of all inferences. See
Cooper v Dyke. 814 P.2d 941, 944 (4th Cir.1987).
FLSA covers all employees, regardless of the type of work
they perform, if they are employed by "an enterprise
engaged in commerce." as defined by Section 3(s) of the
statute. In order for an enterprise to be "engaged in
commerce." it must have annual gross volume of sales
made or business done in excess of $500, 000. See 29 U.S.C.
§ 203(s)(1)(A)(ii). Plaintiff did not present any
evidence here, or at any stage of the trial, that Plaintiff
had proven the employer Defendants were engaged in commerce.
Plaintiff had the ability to call Michael DiCarlo as the
corporate representative but did not. Plaintiff relied solely
on the testimony he provided, that he occasionally ordered
goods from out of state, so he was covered as an employee
individually under the FLSA. Even if an employer does not
meet the "enterprise engaged in commerce"
requirements, the FLSA's provision may cover a particular
employee if that employee was "engaged ill commerce or
in the production of goods." See 29 U.S.C. §§
206 and 207. To determine whether an employee performed such
work, a court must focus its inquiry on the activities of the
employee and not on the business of the employer. See
Mitchell v. Lublin McGaughy and Assocs., 358
U.S. 207. 211. 79 S.Ct. 260. 3 L.Ed.2d 243 (1959). The
definitive test is not whether the employee's tasks have
some remote effect on interstate commerce, but whether the
employee participated in the channels of commerce.
Russell v. Continental Restaurant. Inc.,
430 F.Supp. 2d. 521. 525 (D.Md. 2006). There clearly is no
evidence in the record that the Plaintiff employed as a cook,
who may have occasionally ordered goods from out of state
participated in the channels of commerce. Plaintiffs
testimony on the issue was vague at best.
following exchanges took place on the record:
EXAMINATION of Michael Mitchell:
Did you ever order food on behalf of Riverside Pub &