      15-3459
      Kennedy v. Equity Transp. Co., Inc.


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
      Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
      28th day of September, two thousand sixteen.

      PRESENT:
                         ROBERT A. KATZMANN,
                              Chief Judge,
                         RICHARD C. WESLEY,
                         PETER W. HALL,
                              Circuit Judges.


      DONALD P. KENNEDY,

                                   Plaintiff-Appellant,

                         v.                                               No. 15-3459

      EQUITY TRANSPORTATION COMPANY, INC.,

                                   Defendant-Appellee.


      For Plaintiff-Appellant:                             CARLO A. C. DE OLIVEIRA, Cooper Erving &
                                                           Savage LLP, Albany, NY.

      For Defendant-Appellee:                              ROBERT EVERETT SCOTT and Rochelle
                                                           Kathleen Lawless, Gibson, McAskill &
                                                           Crosby, LLP, Buffalo, NY.

               Appeal from a judgment of the United States District Court for the Northern District of

      New York (Peebles, M.J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Donald P. Kennedy appeals from an order of the United States

District Court for the Northern District of New York (Peebles, M.J.), entered on October 22,

2015, denying his motion for summary judgment and granting Defendant-Appellee Equity

Transportation Company, Inc.’s cross-motion for summary judgment. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

       “We review the district court’s grant and denial of summary judgment de novo.” Zaretsky

v. William Goldberg Diamond Corp., 820 F.3d 513, 519 (2d Cir. 2016). “Summary judgment is

proper ‘if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

       Having reviewed the record and the parties’ arguments, we AFFIRM for substantially the

same reasons provided by the district court. But we briefly address Kennedy’s main argument

that the motor-carrier exemption to the overtime requirements of the Fair Labor Standards Act

(FLSA), see 29 U.S.C. § 213(b)(1), does not apply to “drivers, such as Kennedy, even if he is

part of a chain of drivers one of whom ultimately crosses state lines, when the products being

transported are destined to the shipper’s warehouses for inventory purposes only.” Appellant’s

Br. at 5. Kennedy’s argument is based on a misunderstanding of Baird v. Wagoner

Transportation Co., 425 F.2d 407 (6th Cir. 1970), and related authority, e.g., Motor Carrier

Interstate Transportation, 57 Fed. Reg. 19,812 (May 8, 1992), and 29 C.F.R. § 782.7(b)(2).

Kennedy misreads this legal authority as stating that any shipment to a warehouse, regardless of

whether that shipment crosses state lines, is not interstate within the meaning of the motor-carrier

exemption if the shipper intends to store the products at the warehouse for inventory purposes.

       “For certain types of shipments, the interstate nature of the transportation [for the

purposes of the motor-carrier exemption] can become blurred as products are temporarily
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warehoused or moved by various carriers—some of whom may only complete intrastate portions

of the journey.” Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1155 (10th Cir. 2016). In

Baird, for example, petroleum products were transported across state lines from Indiana to a

storage facility in Michigan and then from that storage facility to other locations in Michigan; the

issue was whether the intrastate transportation from the storage facility was the last leg of a

continuous interstate journey or a new intrastate journey. See 425 F.2d at 408–12. To answer that

question, the Sixth Circuit had to determine whether the products had “come to rest” at the

storage facility. Id. at 412. And to make that determination, it had to decide whether the shipper

had a “fixed and persisting transportation intent” to move the products beyond the storage

facility at the time of shipment. Id. at 410 (quoting 29 C.F.R. § 782.7(b)(2)). If the shipper had

such a fixed and persisting intent, the goods would not have come to rest at the facility;

otherwise they would have come to rest. The Sixth Circuit concluded, based on a now outdated

test, see, e.g., Roberts v. Levine, 921 F.2d 804, 811–12 (8th Cir. 1990), that the products had

come to rest at the storage facility. See Baird, 425 F.2d at 410–12. And because the drivers at

issue in Baird transported products only from that storage facility to other points in the same

state, the Sixth Circuit concluded that the drivers were engaged in purely intrastate

transportation. See id. at 412. In sum, Baird addressed how courts must determine when the

warehousing of products terminates their journey; it did not address what makes a product’s

journey interstate in the first place.

        Here, Kennedy shuttled trailers of products from a Pepsi bottling plant in Latham, New

York, to a parking lot at Exit 24 of the New York State Thruway. After arriving at the Exit 24

lot, Kennedy would unhitch his trailer, and a different driver would take that trailer in tandem

with another trailer to Pepsi warehouses in New York and surrounding states. The district court

noted that “[e]ven if a carrier’s transportation does not cross state lines, the interstate commerce

requirement is satisfied if the goods being transported within the borders of one State are
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involved in a ‘practical continuity of movement’ in the flow of interstate commerce.” Kennedy v.

Equity Transp. Co., No. 1:14-CV-0864 (DEP), 2015 WL 6392755, at *6 (N.D.N.Y. Oct. 22,

2015) (quoting Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 223 (2d Cir. 2002)). It

further noted correctly that “[t]hough [Kennedy] may never have personally transported a trailer

across state lines, when he relayed filled trailers to the Exit 24 compound, he was essentially

‘one leg of a route to an out of state destination.’” Id. at *7 (quoting Bilyou, 300 F.3d at 224).

Thus, the motor-carrier exemption to the FLSA applies. See Bilyou, 300 F.3d at 224.

       Kennedy also argues that the district court erred in dismissing his state-law claim because

the motor-carrier exemption does not preempt state law. This may be true, see Overnite Transp.

Co. v. Tianti, 926 F.2d 220, 221–22 (2d Cir. 1991), but it is irrelevant, because the district court

did not hold that Kennedy’s state-law claim was preempted. Rather, the district court pointed to

this Court’s holding that the New York Labor Law itself “applies the same exemptions as the

FLSA.” Kennedy, 2015 WL 6392755, at *8 n.8 (quoting Reiseck v. Universal Commc’ns of

Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010)).

       We have considered all of Kennedy’s contentions on appeal and have found in them no

basis for reversal. For the reasons stated herein, the district court’s judgment is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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