                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 15 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TERESA DARLING,

                Plaintiff-Appellee,

    v.                                             Nos. 96-6222 & 96-6296
                                                  (D.C. Nos. CIV-95-223-L &
    RAY FRANK, an Individual; MIKE                     CIV-95-0223-M)
    SPROUL, an Individual; RAY                           (W.D. Okla.)
    FRANK and MIKE SPROUL, d/b/a
    F & S INVESTMENTS; and F & S
    INVESTMENT PROPERTIES, L.L.C.,

                Defendants-Appellants.




                             ORDER AND JUDGMENT *



Before TACHA, MCKAY, and BALDOCK, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The cases are therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff was employed as a resident manager by defendants at their

mini-storage facility in Stillwater, Oklahoma from August 3, 1992 through

October 24, 1994. After termination from employment, she filed claims under

the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and the Oklahoma

Minimum Wage Act, Okla. Stat. tit. 40, §§ 197.1-197.17, claiming that she was

not paid minimum wage or overtime for the hours she worked in 1992, 1993, and

1994. After a trial to the court, the district court determined that plaintiff was

underpaid $15,317.37 and was entitled to that amount as actual damages and,

additionally, to an equal amount as liquidated damages. The district court also

awarded attorney’s fees to plaintiff.

      On appeal, defendants first argue that the FLSA does not apply because

they were not engaged in interstate commerce. 1 We review the district court’s

factual findings under the clearly erroneous standard and its legal conclusions

de novo. See Pierce v. Underwood, 487 U.S. 552, 558 (1988).




1
        Defendants suggest that the district court erroneously ruled before trial, on
summary judgment, that defendants were engaged in interstate commerce.
Defendants believe the ruling was premature since it was made before the record
was developed. See also Appellees’ Supp. App. at 23 (concluding at end of court
trial that defendants were engaged in commerce or in production of goods for
commerce). Federal Rule of Civil Procedure 56(d) provides that a court may
determine on summary judgment which material facts have been established and
which must be decided at trial. Thus, we conclude the district court’s ruling was
not premature.

                                          -2-
      An “[e]nterprise engaged in commerce or in the production of goods for

commerce . . . has employees engaged in commerce or in the production of goods

for commerce, or . . . has employees handling, selling, or otherwise working on

goods or materials that have been moved in or produced for commerce by any

person.” 29 U.S.C. § 203(s)(1)(A)(i). The district court found, and the record

reflects, that plaintiff used cleaning supplies manufactured outside of Oklahoma

and transported to Oklahoma, and accepted packages at the mini-storage facility

for customers who shipped and stored goods produced outside of Oklahoma.

Thus, plaintiff handled goods and materials that had moved in interstate

commerce. See Donovan v. Pointon, 717 F.2d 1320, 1322-23 (10th Cir. 1983);

Brennan v. Dillion, 483 F.2d 1334, 1336-37 (10th Cir. 1973); see also Dole v.

Odd Fellows Home Endowment Bd., 912 F.2d 689, 693 (4th Cir. 1990) (“Local

business activities are subject to the [FLSA] when the enterprise employs workers

who handle goods or materials that have moved in interstate commerce.”). It is

irrelevant whether plaintiff bought the cleaning supplies at a store or whether

someone brought her the supplies from Kansas, where defendant F & S is located.

See Donovan, 717 F.2d at 1322; see also Radulescu v. Moldowan, 845 F. Supp.

1260, 1265 (N.D. Ill. 1994) (determining that although purchased locally, supplies

had previously moved in interstate commerce and supplies were handled and used




                                         -3-
by defendant’s employees). The district court correctly concluded that defendants

engaged in interstate commerce.

      Defendants further argue that the FLSA does not apply because plaintiff

failed to establish that there was a single “enterprise” with an annual gross

volume of sales of at least $500,000, as required by 29 U.S.C. § 203(s)(1)(A)(ii).

Because this requirement was not met for 1992, plaintiff sought and was awarded

relief under the Oklahoma Minimum Wage Act for 1992. The relevant issue is

whether this requirement was met for 1993 and 1994.

      An “enterprise” is defined as “the related activities performed (either

through unified operation or common control) by any person or persons for a

common business purpose, and includes all such activities whether performed in

one or more establishments or by one or more corporate or other organizational

units . . . .” 29 U.S.C. § 203(r)(1). An “enterprise” has three elements:

(1) related activities; (2) unified operations or common control; and (3) a common

business purpose. See Brennan v. Arnheim & Neely, Inc., 410 U.S. 512, 518

(1973). Related activities are those which are the same or similar. See id.

By 1994, defendants owned seven rental storage businesses in three states.

See Appellee’s Supp. App. at 5. This constitutes related activities. Cf. Dole,

912 F.2d at 692 (stating individual retail stores in chain are related). Defendant




                                         -4-
Frank admitted there was common control of the businesses. 2 See Appellee’s

Supp. App. at 16; see also 29 C.F.R. § 779.223 (recognizing control exists when

total ownership is vested in single partnership or corporation). The defendants’

activities at the different locations have the common business purpose of renting

storage units for a profit. See Brennan, 410 U.S. at 519; see also 29 C.F.R.

§ 779.213 (establishing common business purpose when activities directed to

same or similar business objective); Hodgson v. University Club Tower, Inc.,

466 F.2d 745, 748 (10th Cir. 1972) (indicating that common business purpose is

shown when organizational structure is horizontal, such as in chain stores).

Thus, defendants’ business activities should be aggregated as part of a single

“enterprise.”

      Plaintiff’s evidence established defendants’ aggregate income from

ownership of the single “enterprise” met the statutory business volume

requirement of at least $500,000 for 1993 and 1994. See Appellee’s Supp.

App. at 11, 12. Because there was an “enterprise” and the business volume

requirement was met, the FLSA did apply. See Dunlop v. Industrial Am. Corp.,

516 F.2d 498, 501-02 (5th Cir. 1975) (recognizing that virtually every enterprise

doing requisite dollar volume of business is covered by FLSA).


2
       Because defendants controlled the “enterprise,” whether there was unified
operation is unimportant. See Brock v. Hamad, 867 F.2d 804, 806-07 (4th Cir.
1989).

                                        -5-
      In the alternative, defendants argue that plaintiff did not establish, and the

district court did not make a finding regarding, the number of hours she was

required to work. The evidence is to the contrary. Plaintiff testified that she was

required to be on the premises from 7:00 a.m. to 9:00 p.m., fourteen hours a day.

The district court found that plaintiff’s testimony was credible, but subtracted

four hours a day to account for her personal activities. “It is exclusively within

the district court’s province to . . . appraise credibility . . . .” FDIC v. Hamilton,

122 F.3d 854, ___, 1997 WL 430022, at *4 (10th Cir. 1997). Thus, the district

court made proper findings regarding plaintiff’s working hours.

      Defendants argue that the amount of the judgment constituting wages, if

any, is properly subject to income tax and other tax withholding before it is

remitted to plaintiff. On May 9, 1996, fourteen days after the district court

entered judgment on April 25, 1996, defendants filed a motion under

Fed. R. Civ. P. 59(e) to alter or amend the judgment on the grounds that a part of

the amount payable to plaintiff was wages subject to withholding for income taxes

and FICA. Because the motion was not filed within ten days of the entry of

judgment, it was untimely. See Fed. R. Civ. P. 59(e). The district court

apparently construed it as a motion for relief from judgment under Fed. R. Civ. P.

60(b) and denied the request to deduct some amount for taxes.




                                           -6-
      Defendants submitted no evidence indicating the amount that should be

withheld. Cf. Tungseth v. Mutual of Omaha Ins. Co., 43 F.3d 406, 409 (8th Cir.

1994) (holding in diversity action that defendant had burden of showing propriety

of amounts of taxes withheld from judgment awarding damages for breach of

employment contract; defendant failed to present district court with explanation

for allocating jury award). Under the circumstances, we conclude the district

court did not abuse its discretion in denying relief from judgment. See Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 727 (10th Cir. 1993).

      Finally, defendants argue that the award of attorney’s fees should be

reduced because it possibly included duplication of services by plaintiff’s two

attorneys and it did not reflect the amount of the judgment obtained as compared

with the judgment sought. After reviewing the briefs and appendices on appeal,

we conclude the district court did not abuse its discretion in awarding attorney’s

fees of $14,768.75, the full amount requested by plaintiff. See Mann v. Reynolds,

46 F.3d 1055, 1062 (10th Cir. 1995). Any duplication was minor, and plaintiff

obtained the relief, even though not the exact dollar amount, she sought under

both the FLSA and the Oklahoma Minimum Wage Act.




                                         -7-
     The judgments of the United States District Court for the Western District

of Oklahoma are AFFIRMED.



                                                 Entered for the Court



                                                 Deanell Reece Tacha
                                                 Circuit Judge




                                      -8-
