                                                  [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                                                          FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                                                       JAN 21, 2011
                          No. 10-12653
                                                        JOHN LEY
                      Non-Argument Calendar              CLERK



                 D. C. Docket No. 2:09-cv-14135-JEM


CARLA CORNELL,
JAMES HARP,

                                          Plaintiffs-Appellees.

                               versus

CF CENTER, LLC,
a Florida corporation,
COASTAL FLOORS AND GRANITE, LLC,
a Florida corporation,
COASTAL FLOORS I, INC.,
a Florida corporation,
CONTRACTORS FLOORING, INC.,
a Florida corporation,
COASTAL FLOORS II, INC.,
a Florida corporation,
GRANITE BY COASTAL, INC.,
a Florida corporation,
JAY A. MELTZER, individually,
NICHOLAS ELLIOTT, individually,

                                          Defendants-Appellants,
                   Appeal from the United States District Court
                       for the Southern District of Florida


                                 (January 21, 2011)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      This is an appeal from a jury verdict in favor of the Appellees for

Appellants’ alleged failure to pay overtime in violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1). According to the amended

complaint, Appellees Carla Cornell and A. James Harp were often required to

work more than forty hours a week as a result of the concerted efforts of the

Appellants. Specifically, Cornell and Harp testified that they were not allowed to

take lunch breaks, even though an hour a day was deducted from their time sheets

for that purpose. Following a trial, the jury found in favor of Cornell and Harp.

Cornell was awarded $9,222.06 and Harp $6,252.00.

      While Cornell and Harp worked primarily for CF Center, LLC, they contend

that the corporate entities were, as a matter of economic reality, jointly engaged in

the floor covering business and acted as their joint employers. The corporate



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Appellants – owned by Jay Meltzer before he sold his interest to Nicholas Elliot –

contend that the district court improperly allowed Cornell and Harp to conflate

and combine separate corporate entities in order to meet the annual gross sales

requirement of the FLSA and establish joint liability. Appellants argue that

Cornell and Harp failed to meet their burden at trial to establish that they were

improperly denied overtime pay. Appellants now appeal the district court’s denial

of their motion for judgment as a matter of law on these points. Appellants further

appeal the district court’s denial of their motion for a new trial based on their

claim that the jury’s verdict was against the great weight of the evidence.

      This court reviews de novo the district court’s denial of a Rule 50 motion

for judgment as a matter of law. Wood v. Green, 323 F.3d 1309, 1312 (11th Cir.

2003). Denial of a motion for a new trial is subject to abuse of discretion review.

Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302, 1309 (11th Cir. 2007).

      Appellants contend that they are not subject to the FLSA because the

Appellees failed to establish that they were employed by an enterprise with at least

$500,000 in gross revenues. CF Center, LLC – Cornell and Harp’s primary

employer – had revenues of $469,193 for 2008. Appellants maintain that the

inquiry should end here. Cornell and Harp argue that the revenue of Granite by

Coastal, Inc., should also be included. Granite’s revenue was $827,000.

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      This court has broadly construed the coverage requirements under the

FLSA. The FLSA allows for coverage under a joint enterprise theory. Donovan v.

Easton Land & Dev., Inc., 723 F.2d 1549, 1551 (11th Cir. 1984). The FLSA

states, “‘Enterprise’ means 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 including

departments of an establishment operated through leasing arrangements, but shall

not include the related activities performed by such enterprise by an independent

contractor. . . .” 29 U.S.C. § 203(r). In Patel v. Wargo, we explained that “the

legislative history of the FLSA and the case law demonstrate that the enterprise

analysis was included in the FLSA solely for the purpose of expanding the scope

of coverage of the statute. The legislative history clearly states the congressional

purpose to expand the coverage of the Act, i.e., to lump related activities together

so that the annual dollar volume test for coverage would be satisfied.” 803 F.2d

632, 636 (11th Cir. 1986). The enterprise and liability analyses are distinct. “The

finding of an enterprise is relevant only to the issue of coverage. Liability is based

on the existence of an employer-employee relationship.” Id. at 637.




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      Appellants claim that their separate tax identifications, banking accounts,

and tax returns establish that they are not engaged in a joint enterprise. Questions

such as these, however, require courts to “look beyond formalistic corporate

separation to the actual pragmatic operation and control, whether unified or,

instead, separate as to each unit.” Donovan v. Grim Hotel Co., 747 F.2d 966, 970

(5th Cir. 1984). Cornell and Harp have provided a wealth of evidence to show

that, practically speaking, the corporate defendants functioned as a single unit for

the purpose of selling and installing flooring. Business cards issued by the

Appellants identify the business simply as “Coastal Floors” without identifying a

particular corporate entity. Furthermore, these cards refer to locations in Port St.

Lucie, Vero Beach, and Stuart. CF Center is located in Vero Beach, whereas

Granite by Coastal is in Port St. Lucie. Granite by Coastal banners were hung in

CF Center’s showroom. Moreover, the corporations share a website which, like

their business cards, treats the corporations interchangeably, listing four business

locations without indicating which corporation is located in which city. A liability

release signed by Harp includes a number of the corporate defendants,

contradicting their claim that there is no relationship between them. Harp, upon

beginning his employment with CF Centers, was required to sign a safety policy

that listed his employer as Coastal Floors I, Inc. Meltzer summed up the business

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reality best when he testified regarding the companies’ health plan, stating,

“Contractors Flooring was an existing company for tax purposes. Coastal Floors –

see, Contractors Flooring was probably the initiator of the plan early, early on.

Coastal Floors I, II or III were established – I don’t know if my bookkeeper had

made a name change to the policy as required or not. I own them all, so I don’t

think it mattered.” (R.117 110:13-18.) This evidence was more than sufficient to

allow coverage under the FLSA subject to an enterprise analysis.

      While the question of liability is different than coverage under the FLSA,

many of the same factors support both the district court and the jury’s finding that,

effectively, Cornell and Harp were employed by all of the entities. As with the

joint enterprise analysis, whether a party qualifies as a joint employer for liability

purposes depends on whether “as a matter of economic reality, the individual is

dependent on the entity.” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.

1996). Under the FLSA “[a] determination of whether the employment by the

employers is to be considered joint employment or separate and distinct

employment for purposes of the act depends upon all the facts in the particular

case.” 29 CFR 791.2. This case-by-case inquiry turns on no formula, but the

court will consider factors such as control, supervision, right to hire and fire,




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ownership of work facilities, investment, and pay-roll decisions. Antenor, 88 F.3d

at 932-37.

      It is clear from the evidence discussed above that the multiple corporate

defendants were acting in one purpose, a purpose that the employment of Cornell

and Harp furthered. Appellants often conflated what corporation conducted what

activity. This confusion included matters of employment, as evidenced by the

Coastal Floors I safety plan and Contractors Flooring health plan applying to CF

Centers’s employees. Appellants’ argument that these companies are completely

separate ignores the economic reality analysis required by the FLSA. Thus, the

district court’s refusal to grant Appellants’ motion for judgment as a matter of law

was proper.

      Nor did the district court abuse its discretion in denying Appellants’ motion

for a new trial. Appellants’ claim that the jury verdict was against the great weight

of the evidence appears to be based almost entirely on their contention that the

jury gave too much weight to the testimony of Cornell and Harp and should have

found them not credible. But as this court has said before, “we do not assume the

jury’s role of weighing conflicting evidence or inferences, or of assessing the

credibility of witnesses.” Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d

1169, 1177 (11th Cir. 2005). Cornell and Harp testified in detail regarding their

                                          7
claims that they were not permitted to take lunch breaks and were not

compensated for this extra hour of work. While Appellants were able to solicit

testimony from Cornell and Harp that possibly contradicts some of their claims, it

was for the jury to assess their credibility. While Appellants may believe that the

jury came to the wrong conclusion, they have failed to show that the great weight

of the evidence so undermines the jury’s decision as to warrant a new trial, and the

district court did not abuse its discretion in denying one.

      Accordingly, for the aforementioned reasons, we affirm the district court’s

order denying Appellants’ motion for a judgment as a matter of law and the order

denying Appellants’ motion for a new trial.

      AFFIRMED.




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