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             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                             October 13, 2011

                                          No. 10-20424                        Lyle W. Cayce
                                                                                   Clerk



ALVARO ALBANIL, ET AL.
                                                     Plaintiffs-Appellants
v.

COAST 2 COAST, INC. AND JEFFREY WAYNE TAYLOR

                                                     Defendants-Appellees



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:08-CV-00486


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ, District
Judge.*1
RODRIGUEZ, District Judge.
        Plaintiffs-Appellants appeal the district court’s grant of summary
judgment on their Fair Labor Standards Act (“FLSA”) claims. Appellants are
forty-one individuals employed by Appellee Coast 2 Coast, Inc. (“C2C”). They
travel around the country in C2C’s “rigs,” which consist of a pickup truck and
trailer with an attached compressor, to various job sites, where they remove

       *
        Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
        1
            District Judge of the Western District of Texas, sitting by designation.
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                                 No. 10-20424

hardened concrete from the insides of concrete mixer drums and other enclosed
spaces. Appellants sued C2C for alleged violations of the FLSA’s minimum-wage
and overtime requirements.
      The first issue on appeal is whether the Motor Carrier Act (“MCA”)
exemption to the FLSA’s overtime requirements applies. Appellants challenge
the district court’s conclusion that it does. This issue involves determining
whether C2C operated “commercial motor vehicles” during the relevant time
period. A “commercial motor vehicle” is defined by statute as a “self-propelled
or towed vehicle used on the highways in interstate commerce to transport
passengers or property, if the vehicle has a gross vehicle weight rating or gross
vehicle weight of at least 10,001 pounds, whichever is greater” or meets certain
other criteria not relevant here. The parties dispute whether the weight of the
pickup truck and the trailer may be combined to reach the 10,001 pound
threshold, as stated in a Department of Transportation regulation, or whether
the use of the disjunctive “or” in the statutory definition requires them to be
considered separately. We hold that the district court correctly combined the
weights of the pickup and trailer to conclude that the MCA exemption applies,
and that summary judgment was appropriate on Plaintiffs’ overtime claims.
      The other issue on appeal is whether the district court committed harmful
error in granting summary judgment sua sponte in favor of Defendants on
certain Plaintiffs’ minimum wage claims. We hold that the district court erred
by granting sua sponte summary judgment without sufficient notice, and that
the error was harmful because Plaintiffs’ evidence raises a material fact issue
concerning liability. Accordingly, the district court’s grant of summary judgment
on certain Plaintiffs’ minimum wage claims is reversed, and this case is
remanded for further proceedings consistent with this opinion.




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                                              I.
A. Factual Background
        The facts of this case are largely undisputed. Defendant C2C provides
concrete chipping services to customers in a number of states, and its employees
travel to customer sites in company rigs to perform chipping services. Plaintiffs
are current and former employees of C2C. Most are or were employed as
“chippers,” who removed hardened concrete from the inside of mixer drums and
other enclosed spaces.        Two are or were employed as foremen, who were
primarily responsible for driving C2C’s rigs and who supervised the chippers’
work.2 Plaintiffs reside in Harris County, Texas. They report to C2C’s office in
Pasadena, Texas, and then load their equipment onto C2C’s rig. They depart
from Pasadena to job sites around the country, traveling in the rig, and then
return to Pasadena after several weeks. They are paid, on an hourly basis, only
for the time between their arrival at and departure from a job site.
B.      Procedural Background
        On February 11, 2008, Plaintiffs filed this collective action under the
FLSA, 29 U.S.C. §§ 206-207, 215, against C2C and its President, Jeffrey Taylor.
Plaintiffs asserted claims under the FLSA for failure to pay minimum and
overtime wages, as well as a claim for illegal deductions in violation of Texas
Labor Code § 415.006 (by collecting a premium or fee for workers’ compensation
insurance).3 The parties filed a stipulation that all Plaintiffs are and were
employees of Defendants under the FLSA and Chapter 415 of the Texas Labor

       2
        This is a consolidated action. Fifteen Plaintiffs employed by C2C as chippers filed
their Original Complaint in 08-CV-486, and two Plaintiffs (Abel Ramirez and Martin Rivas)
employed as foremen filed their Original Complaint in 08-CV-487. Approximately twenty-four
additional chippers joined by filing consents pursuant to 29 U.S.C. § 216(b).
       3
         Section 415.006 of the Texas Labor Code provides that “[a]n employer may not collect
from an employee, directly or indirectly, a premium or other fee paid by the employer to obtain
workers' compensation insurance coverage, except as provided by Sections 406.123 and
406.144.”

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                                   No. 10-20424

Code during the relevant times, were not independent contractors, and that C2C
was and is Plaintiffs’ employer. On November 17, 2008, the district court
granted Plaintiffs’ motion to certify a class of chippers. The class consists of “all
current and former hourly-paid workers who worked for Coast 2 Coast, Inc.,
performing concrete removal work, between June 16, 2005, and the present.”
      On August 3, 2009, the parties filed cross-motions for partial summary
judgment on the issue of whether the MCA exemption applies to Plaintiffs’
overtime claims. Plaintiffs also filed a second motion for partial summary
judgment on specific issues related to their minimum-wage and Texas Labor
Code claims.
      On March 31, 2010, the district court issued an order granting Defendants’
motion for partial summary judgment on the MCA exemption and denying
Plaintiffs’ motions for partial summary judgment. The district court concluded
that the term “commercial motor vehicle” should be given its “current meaning”
under the existing DOT regulations, which contemplate a combined gross
weight, and thus the weight of the pickup trucks and the loaded trailers could
be combined in determining whether Defendants’ rigs met the weight
requirement. Considering the summary judgment evidence, the district court
found that Defendants’ rigs met the weight requirement and that the chippers
qualified as drivers’ helpers, and were thus exempt. Accordingly, the district
court concluded that Defendants had shown the applicability of the MCA
exemption as a matter of law.
      Although Defendants did not file a motion for summary judgment on the
issue of liability on Plaintiffs’ FLSA minimum-wage claims, the district court
granted summary judgment in favor of Defendants. The district court found
that Defendants had asked the court to deny the claims as a matter of law in
their response to Plaintiffs’ motion, and that sufficient opportunity was afforded
both sides to brief the matter. The district court stated that, even if it were to

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                                         No. 10-20424

agree with Plaintiffs that they should have been compensated for some of the
activities they performed, “this would not be enough to show a minimum wage
violation – the violation occurs only if the total hours worked divided by the pay
is less than minimum wage.” Because the Plaintiffs had not offered evidence to
show that their total hours worked divided by their pay was less than the
minimum wage, the district court found that they had not met their initial
burden on the minimum-wage violations and that summary judgment for
Defendants was warranted.               The district court also found that it lacked
jurisdiction over Plaintiffs’ Texas Labor Code claims because they did not
request an administrative hearing. That same day, the district court issued a
final take-nothing judgment.4
       Plaintiffs timely filed a Motion to Alter or Amend the Judgment,
challenging only the district court’s summary judgment on their FLSA
minimum-wage claims. Plaintiffs noted that Defendants did not move for
summary judgment on the minimum-wage claims, and argued that the district
court’s grant of summary judgment was both without notice and harmful
because Plaintiffs could adduce evidence in support of those claims, which they
submitted with the motion. After the district court denied the motion, Plaintiffs
timely filed this appeal.




       4
          Within its Memorandum Opinion and Order, the district court concluded that it
lacked jurisdiction over the Texas Labor Code claim and stated that Plaintiffs’ “claims for the
workers’ compensation deduction under the Texas Labor Code are dismissed for lack of subject
matter jurisdiction.” However, in its conclusion, the district court failed to note the dismissal
of the Texas Labor Code claim for want of jurisdiction, and instead granted summary
judgment on all of Plaintiffs’ claims. Further, the district court’s final judgment states that
“[j]udgment is entered for the defendant on all of the plaintiff's [sic] claims, and plaintiff [sic]
shall take nothing.” No Plaintiffs challenge the district court’s disposition of the Texas Labor
Code claims.

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                                            II.
       All Plaintiffs appeal the district court’s grant of summary judgment on
their overtime claims, arguing that the district court misconstrued the MCA
exemption to the FLSA’s overtime requirements. All but six of the Plaintiffs
challenge the district court’s sua sponte grant of summary judgment on the
minimum wage claims.5 We have jurisdiction pursuant to 28 U.S.C. § 1291
because this is an appeal from a final judgment.
       We review the district court's grant of summary judgment de novo,
applying the same legal standards as the district court. Catlin Syndicate Ltd.
v. Imperial Palace of Miss., Inc., 600 F.3d 511, 513 (5th Cir. 2010). Summary
judgment is appropriate where the submissions show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
       The granting of sua sponte summary judgment without notice is subject
to harmless error review. Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994). Failure to provide
proper notice is harmless error “if the nonmovant has no additional evidence or
if all of the nonmovant’s additional evidence is reviewed by the appellate court
and none of the evidence presents a genuine issue of material fact.” Id.
                                           A.
       In their first issue on appeal, Plaintiffs assert that the district court
erroneously concluded that the MCA exemption applies to their overtime claims
because C2C is not a motor private carrier.



      5
          Four chippers and the two foremen – Pedro Buendia, Gerardo Ramirez, Hector
Albanil, Martin Albanil, Abel Ramirez, and Martin Rivas – state that they are not appealing
the summary judgment on the minimum-wage claims because their wages exceeded the
minimum wage even when their alleged uncompensated time is considered.

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       Section 207 of the FLSA mandates that workers receive overtime pay,
subject to certain exemptions. One such exemption is the MCA exemption, found
in section 213(b)(1) of the FLSA. Section 213(b)(1) provides that “[t]he provisions
of section 207 of this title shall not apply with respect to– (1) any employee with
respect to whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to the provisions of
section 31502 of Title 49 [of the MCA].” 29 U.S.C. § 213(b)(1).
       According to the Department of Labor (“DOL”) regulations enforcing the
FLSA, the application of the MCA exemption to an employee “depends both on
the class to which his employer belongs and on the class of work involved in the
employee’s job.” Songer v. Dillon Resources, Inc., 618 F.3d 467, 472 (5th Cir.
2010) (quoting 29 C.F.R. § 782.2(a)). The DOL regulations provide that “[t]he
power of the Secretary of Transportation to establish maximum hours and
qualifications of service of employees, on which exemption depends, extends to
those classes of employees and those only who: (1) Are employed by carriers
whose transportation of passengers or property by motor vehicle is subject to his
jurisdiction under section 204 of the Motor Carrier Act . . ., and (2) engage in
activities of a character directly affecting the safety of operation of motor
vehicles in the transportation on the public highways of passengers or property
in interstate or foreign commerce within the meaning of the Motor Carrier Act.”
29 C.F.R. § 782.2(a).6 Though both of these requirements were in dispute in the
district court, on appeal Plaintiffs challenge only whether C2C is a motor private
carrier subject to the Secretary of Transportation’s jurisdiction. Further, due to
further concessions by Plaintiffs on appeal, resolution of this issue depends only


       6
          “The Secretary . . . need only possess the power to regulate the employees at issue;
it need not actually exercise that power for the [MCA] exemption to apply. ” Songer, 618 F.3d
at 472 (quoting Barefoot v. Mid-America Dairymen, Inc., No. 93-1684, 1994 WL 57686, at *2
(5th Cir. Feb.18, 1994) (per curiam) (citing Levinson v. Spector Motor Serv., 330 U.S. 649, 678
(1947))).

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                                  No. 10-20424

on whether the weight of the pickup truck and the trailer can be combined to
determine whether C2C’s “rig” is a commercial motor vehicle. In making this
determination, the Court turns to the statute and applicable regulations.
      Though the language of section 213(b)(1) did not change during the time
period relevant to this litigation, the scope of the Secretary of Transportation’s
authority (and thus the scope of the MCA exemption under § 213(b)(1)) was
amended during that time. Section 31502 provides that “[t]he Secretary of
Transportation may prescribe requirements for– (1) qualifications and maximum
hours of service of employees of, and safety of operation and equipment of, a
motor carrier; and (2) qualifications and maximum hours of service of employees
of, and standards of equipment of, a motor private carrier, when needed to
promote safety of operation.” 49 U.S.C. § 31502(b) (emphasis added). The terms
“motor carrier”and “motor private carrier” have the same meanings given those
terms in section 13102. 49 U.S.C. § 31501(2).
      Before August 10, 2005 (and, as will be discussed, after June 6, 2008),
section 13102 defined “motor carrier” as “a person providing motor vehicle
transportation for compensation” and “motor private carrier” as “a person, other
than a motor carrier, transporting property by motor vehicle when– (A) the
transportation is as provided in section 13501 of this title; (B) the person is the
owner, lessee, or bailee of the property being transported; and (C) the property
is being transported for sale, lease, rent, or bailment or to further a commercial
enterprise.” 49 U.S.C. § 13102(14), (15). The term “motor vehicle” means “a
vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by
mechanical power and used on a highway in transportation, or a combination
determined by the Secretary, but does not include a vehicle, locomotive, or car
operated only on a rail, or a trolley bus operated by electric power from a fixed
overhead wire, and providing local passenger transportation similar to
street-railway service.” 49 U.S.C. § 13102(16). Thus, before August 10, 2005,

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                                      No. 10-20424

the MCA gave the Secretary of Transportation regulatory authority over motor
carriers and motor private carriers utilizing certain motor vehicles in interstate
commerce, regardless of the vehicle’s weight. As a result, many employees fell
within the MCA exemption to the FLSA, and employers were not required to pay
them overtime compensation.
       On August 10, 2005, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act (“SAFETEA-LU”) went into effect. Pub. L. No.
109-59, 119 Stat. 1144. Section 4142 of SAFETEA-LU changed the definitions
of “motor carrier” and “private motor carrier” in section 13102 by replacing the
term “motor vehicle” with “commercial motor vehicle (as defined in [49 U.S.C.]
section 31132)” in each definition.7 Section 31132 states that “(1) ‘commercial
motor vehicle’ means a self-propelled or towed vehicle used on the highways in
interstate commerce to transport passengers or property, if the vehicle-- (A) has
a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds,
whichever is greater8; (B) is designed or used to transport more than 8
passengers (including the driver) for compensation; (C) is designed or used to
transport more than 15 passengers, including the driver, and is not used to
transport passengers for compensation; or (D) is used in transporting
[hazardous] material . . . .” 49 U.S.C. § 31132. Thus, this amendment restricted
the Secretary’s regulatory authority – and thereby also narrowed the MCA
exemption to the FLSA’s overtime requirements – to only those motor carriers


       7
         Pub. L. No. 109-59, § 4142(a), 119 Stat. 1144, 1747 (“DEFINITIONS RELATING TO
MOTOR CARRIERS.—Paragraphs (6), (7), (12), and (13) of section 13102 of title 49, United
States Code, are each amended by striking ‘motor vehicle’ and inserting ‘commercial motor
vehicle (as defined in section 31132)’.”).
       8
         This has been the definition of “commercial motor vehicle” since 1998. The language
“or gross vehicle weight” and “whichever is greater” was added in June 1998 as part of the
Transportation Equity Act for the 21st Century (“TEA-21"), a 500-page “[a]ct to authorize
funds for Federal-aid highways, highway safety programs, and transit programs, and for other
purposes.” See Pub. L. No. 105-178, 112 Stat. 107, 404, § 4008(a).

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                                     No. 10-20424

and private motor carriers who operated “commercial motor vehicles (as defined
in section 31132).”
      On June 6, 2008, Congress passed the SAFETEA–LU Technical
Corrections Act (“TCA”). Pub. L. No. 110-244, 122 Stat. 1572. Section 305 of the
TCA replaced “commercial motor vehicle” in the definitions of motor carrier and
motor private carrier with “motor vehicle,” essentially returning the Secretary
of Transportation’s authority to its pre-SAFETEA-LU scope.9 District courts
have concluded that the TCA amendment was not retroactive, and no party in
this case argues that the TCA amendment is retroactive.
      Thus, for the time period between August 10, 2005 and June 6, 2008, many
employees who had been exempt from the FLSA’s overtime provisions under the
MCA exemption were no longer exempt. However, the TCA included a safe
harbor period of one year, from August 10, 2005 to August 9, 2006, for any
failure by an employer to pay overtime compensation pursuant to the FLSA by
employers who did not have actual knowledge that the scope of the exemption
had changed when the SAFETEA–LU was enacted in 2005. 122 Stat. 1572, 1620
§ 306(b)(1). Section 306 of the TCA also addressed application of the FLSA’s
overtime requirements going forward:
      SEC. 306. APPLICABILITY OF FAIR LABOR STANDARDS ACT
      REQUIREMENTS AND LIMITATION ON LIABILITY.

      (a) APPLICABILITY FOLLOWING THIS ACT.–Beginning on the
      date of enactment of this Act, section 7 of the Fair Labor Standards
      Act of 1938 (29 U.S.C. 207) shall apply to a covered employee
      notwithstanding section 13(b)(1) of that Act (29 U.S.C. 213(b)(1)).

      ....


      9
         Pub. L. No. 110-244, § 305(c), 122 Stat. 1572, 1620 (“DEFINITIONS RELATING TO
MOTOR CARRIERS.—Paragraphs (6)(B), (7)(B), (14), and (15) of section 13102 of such title
are each amended by striking ‘commercial motor vehicle (as defined in section 31132)’ and
inserting ‘motor vehicle’.”).

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      (c) COVERED EMPLOYEE DEFINED.–In this section, the term
      “covered employee” means an individual–

      (1) who is employed by a motor carrier or motor private carrier (as
      such terms are defined by section 13102 of title 49, United States
      Code, as amended by section 305);

      (2) whose work, in whole or in part, is defined–

            (A) as that of a driver, driver's helper, loader, or
            mechanic; and

            (B) as affecting the safety of operation of motor vehicles
            weighing 10,000 pounds or less in transportation on
            public highways in interstate or foreign commerce,
            except vehicles–
                   (i) designed or used to transport more than 8
                   passengers (including the driver) for
                   compensation;
                   (ii) designed or used to transport more than 15
                   passengers (including the driver) and not used to
                   transport passengers for compensation; or
                   (iii) used in transporting material found by the
                   Secretary of Transportation to be hazardous
                   under section 5103 of title 49, United States
                   Code, and transported in a quantity requiring
                   placarding under regulations prescribed by the
                   Secretary under section 5103 of title 49, United
                   States Code; and

      (3) who performs duties on motor vehicles weighing 10,000 pounds
      or less.

Pub. L. No. 110-244, §§ 305-06, 122 Stat. 1572, 1620-21 (effective June 6, 2008).

      Plaintiffs filed this lawsuit on February 11, 2008. Because they allege
willful violations of the FLSA, the potential limitations period extends back to
February 11, 2005. Throughout this time period, and despite the various
amendments to the MCA, Congress did not amend the definition of “commercial


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                                      No. 10-20424

motor vehicle,” and the DOT had in place an existing regulation defining
“commercial motor vehicle.” It provides:
       Commercial motor vehicle means any self-propelled or towed motor
       vehicle used on a highway in interstate commerce to transport
       passengers or property when the vehicle–

       (1) Has a gross vehicle weight rating or gross combination weight
       rating, or gross vehicle weight or gross combination weight, of 4,536
       kg (10,001 pounds) or more, whichever is greater; or

       (2) Is designed or used to transport more than 8 passengers
       (including the driver) for compensation; or

       (3) Is designed or used to transport more than 15 passengers,
       including the driver, and is not used to transport passengers for
       compensation; or

       (4) Is used in transporting [hazardous] material . . . .
49 C.F.R. § 390.5.10 Though this definition generally tracks the statutory
definition of commercial motor vehicle, it adds the terms “gross combination
weight rating” and “gross combination weight.”
       “Gross vehicle weight rating” (“GVWR”) is defined in DOT regulations as
“the value specified by the manufacturer as the loaded weight of a single motor
vehicle.” 49 C.F.R. § 390.5. “Gross combination weight rating (GCWR) means
the value specified by the manufacturer as the loaded weight of a combination
(articulated) motor vehicle. In the absence of a value specified by the
manufacturer, GCWR will be determined by adding the GVWR of the power unit
and the total weight of the towed unit and any load thereon.” Id. “Gross vehicle




       10
           This regulatory definition has been in place since 1999. The Federal Highway
Administration (“FHWA”) issued a revised regulatory definition of “commercial motor vehicle,”
effective September 3, 1999, in response to the 1998 TEA-21 amendment to the definition of
commercial motor vehicle. 64 Fed. Reg. 48510-01, 48515.

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                                       No. 10-20424

weight” (“GVW”) and “gross combination weight” are not defined in the statute
or the regulations.11
       On appeal, Plaintiffs’ main contention is that the DOT regulation defining
“commercial motor vehicle” should not be afforded Chevron deference because
the regulation, which allows combinations of vehicles in determining GVWR or
GVW, contravenes the plain statutory text, which does not allow combinations
of vehicles. However, Plaintiffs did not raise their Chevron argument in the
district court either in their summary-judgment briefing or in their Motion to
Alter or Amend Judgment.            Thus, they have waived this argument.                See
Commodity Futures Trading Comm’n v. Erskine, 512 F.3d 309, 314 (6th Cir.
2008) (“[T]he CFTC waived any reliance on Chevron deference by failing to raise
it to the district court.”); see also Faris v. Williams WPC-I, Inc., 322 F.3d 316,
319 n.2 (5th Cir. 2003) (“Defendants also argue that, if the regulation extends
to the waiver at issue here, it is invalid under Chevron U.S.A. Inc. v. N.R.D.C.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This argument was not
presented to nor passed on by the district court, and therefore may not be
considered on appeal.”).
       Even if Plaintiffs had not waived this argument, however, it lacks merit.
Plaintiffs contend that the statute is unambiguous, that Chevron deference
applies only in the case of ambiguous statutes,12 and that the DOT regulation is


       11
           The FHWA notice of interim final rule stated that “Section 4008 [of TEA-21] also
changed the weight threshold in the CMV definition by adding ‘gross vehicle weight’ (GVW)
to the previous ‘gross vehicle weight rating’ (GVWR). The agency may now exercise
jurisdiction based on the GVW or GVWR, whichever is greater. A vehicle with a GVWR of
9,500 pounds that was loaded to 10,500 pounds GVW would therefore be subject to the
FMCSRs if it was operating in interstate commerce.” 64 Fed. Reg. 48510-48511. This
indicates that “gross vehicle weight” means the actual loaded weight of a vehicle.
       12
         Martinez v. Mukasey, 519 F.3d 532, 542-43 (5th Cir. 2008) (“Under Chevron, we defer
to agency interpretations of ambiguous statutes. . . . Deference of this sort however, is not
owed automatically to all agency interpretations of statutory provisions; again, there must be
ambiguity.”).

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                                 No. 10-20424

therefore not entitled to any deference. Because the statute is unambiguous,
Plaintiffs argue, the Court should apply the statute’s plain language and hold
that either the truck or the trailer alone must weigh over 10,000 pounds for the
vehicle to qualify as a commercial motor vehicle.
      Because the statute refers to a “self-propelled or towed vehicle” that
weighs over 10,000 pounds, Plaintiffs assume that a self-propelled vehicle can
mean only the truck excluding any towed vehicle. However, both a truck
without a towed vehicle and a truck with a towed vehicle can be a “self-propelled
vehicle.” As Plaintiffs themselves emphasize, the statute recognizes that a
“motor vehicle” can be “a vehicle, machine, tractor, trailer, or semitrailer
propelled or drawn by mechanical power and used on a highway in
transportation, or a combination determined by the Secretary.” 49 U.S.C. §
13102(16). Thus, the use of the disjunctive “or” between self-propelled and
towed does not necessitate Plaintiffs’ conclusion that a self-propelled vehicle
excludes any towed portion of that same vehicle, even though the definition of
commercial motor vehicle does not itself include the “or a combination” language.
Rather, the statute can be read to mean that a commercial motor vehicle is a
self-propelled vehicle (which is a vehicle propelled by its own power, along with
any towed vehicle drawn by it, if any) or a towed vehicle with a GVWR or GVW
in excess of 10,000 pounds. See Glanville v. Dupar, Inc., Civ. A. No. H-08-2537,
2009 WL 3255292, at *6 (S.D. Tex. Sept. 25, 2009) (concluding that the statutory
definition of commercial motor vehicle “does not directly and unambiguously
speak to the combination of a truck towing an attached trailer” but that “[t]he
statute clearly contemplates a combination of a self-propelled vehicle with a
towed attachment that could not travel down the highway by itself”).
      There is nothing in the statutory language that clearly excludes a
combination vehicle from being a “self-propelled vehicle.” Plaintiffs argue that
Congress’s choice of GVWR and GVW indicates that only the weight of a single

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                                       No. 10-20424

vehicle – as opposed to a combination vehicle – can be considered because these
are measurements of the weight of a single vehicle. All parties agree that
GVWR is defined by the regulations as “the value specified by the manufacturer
as the loaded weight of a single motor vehicle.” 49 C.F.R. § 390.5. On appeal,
Plaintiffs assert that GVW is “the maximum payload that the vehicle was
designed to carry,” or “[t]he maximum loaded weight for which a single
automobile is designed, as specified by the manufacturer.” Id. However, this is
not the same definition of GVW that Plaintiffs urged in the district court. They
asserted in the district court that, “although not expressly defined, it is accepted
that Gross Vehicle Weight (‘GVW’) means the actual weight of a commercial
motor vehicle on a given day” (in their Motion for Summary Judgment) and that
it means “the actual weight of a vehicle, plus the actual weight of cargo and
passengers, on a given day” (in their Response to Defendants’ Motion for
Summary Judgment).13 Nothing about these definitions indicates that one can
consider only the truck without the trailer in determining GVW.
       Citing a single district court case,14 Plaintiffs assert that “[c]ourts have
recognized that the gross vehicle weight rating ‘is only appropriate for
determining the weight of a vehicle that is not towing a trailer.’” Therefore, they
assert, “the gross vehicle weight rating and gross vehicle weight, by definition,
mean the weight of the truck or trailer by itself.” Even if it is true that the
GVWR can only apply to a vehicle not towing a trailer, which we do not decide,


       13
           Plaintiffs do not acknowledge or discuss the difference between their proposed
definitions of GVW in the district court and on appeal. Nor do they discuss how their current
definition of GVW (“the maximum loaded weight for which a single automobile is designed,
as specified by the manufacturer”) differs functionally from the definition of GVWR (“the value
specified by the manufacturer as the loaded weight of a single motor vehicle”). As noted, the
term “or gross vehicle weight” was added to the definition of commercial motor vehicle in 1998,
and thus Congress must have intended for it to have a meaning different from the existing
term “gross vehicle weight rating.”
       14
            Glanville, 2009 WL 3255292, at *5.

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                                  No. 10-20424

Plaintiffs fail to explain why the same is necessarily true for the GVW, other
than to note that, when a truck with a trailer is considered, other measures –
gross combination weight rating and gross combination weight – are used. Thus,
they assert that the DOT recognized that GVWR and GVW are measures for a
single vehicle because it had to include the additional measurements to
determine the combined weight of the truck and trailer. By choosing weight
measurements that were limited to single vehicles, and omitting measurements
that included combined vehicles, Plaintiffs argue, Congress unambiguously
intended that either the truck or trailer by itself had to exceed 10,000 pounds.
      The Court rejects Plaintiffs’ argument that GVW can include only the
weight of the truck without the trailer. A separate provision of the United
States Code in the title governing highways uses GVW when expressly referring
to combination vehicles: 23 U.S.C. §127(d)(4) states that the term “longer
combination vehicle” means “any combination of a truck tractor and 2 or more
trailers or semitrailers which operates on the Interstate System at a gross
vehicle weight greater than 80,000 pounds.” And, as noted, Plaintiffs themselves
offer a different definition of GVW on appeal than they did in the district court,
and their asserted definition in the district court – actual vehicle weight – does
not exclude combination vehicles. Thus, Plaintiffs fail to support their argument
that GVW can only apply to a truck without a trailer. If the GVW is the actual
weight of a self-propelled vehicle (which can be a single or combination vehicle),
then adding the actual weight of the truck and the actual weight of the trailer,
as the district court did, is an appropriate method of determining the GVW. The
regulation simply includes the term “gross combination weight” for this
calculation.
      Plaintiffs further assert that Defendants offer no explanation of why
Congress defined a commercial motor vehicle as a “self-propelled or towed”
vehicle that weighs over 10,000 pounds if it wanted the weight of both the self-

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                                  No. 10-20424

propelled and towed vehicles to be counted, in which case it would have used
“and.” But this argument overlooks the rest of the statutory definition of
commercial motor vehicle and the role of the Secretary of Transportation in
prescribing safety standards. A commercial motor vehicle is a self-propelled or
towed vehicle used on a highway in interstate commerce to transport passengers
or property when the vehicle meets one of four separate criteria. The first
criteria is that it have a GVWR or GVW of at least 10,001 pounds. The other
criteria are: (1) that it is designed or used to transport more than 8 passengers
(including the driver) for compensation; (2) that it is designed or used to
transport more than 15 passengers, including the driver, and is not used to
transport passengers for compensation; or (3) that it is used in transporting
hazardous material. The disjunctive language “self-propelled or towed vehicle”
applies to all four criteria. Congress has mandated that “the Secretary of
Transportation shall prescribe regulations on commercial motor vehicle safety”
and that “[t]he regulations shall prescribe minimum safety standards for
commercial motor vehicles.” 49 U.S.C. § 31136(a). Among other things, the
regulations shall ensure that commercial motor vehicles are maintained,
equipped, loaded, and operated safely. Id. Thus, the disjunctive “or towed
vehicle” clarifies and ensures that the Secretary maintains jurisdiction over
trailers, semitrailers, and other towed vehicles that transport hazardous
material or exceed 10,000 pounds, and that these types of towed vehicles are
subject to the Federal Motor Carrier Safety Regulations.
      Further, the regulation comports with the purpose of the statute as a
whole. As the district court in this case recognized, the purpose of defining
commercial motor vehicles to include large/heavy vehicles, certain passenger
vehicles, and vehicles containing hazardous materials is to bring these vehicles
within the jurisdiction of the Secretary of Transportation and the applicable
safety regulations. Plaintiffs’ construction results in coverage for a pickup truck

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                                 No. 10-20424

weighing 10,001 pounds or a trailer weighing 10,001 pounds, but does not result
in coverage for a pickup truck weighing 10,000 pounds and towing a trailer
weighing 10,000 pounds, for a combined weight of 20,000 pounds, even though
such a vehicle implicates the same, if not greater, safety concerns.
      The TCA also indicates that Congress was concerned with total vehicle
weights and did not intend to exclude combination vehicles from the definition
of commercial motor vehicle. As noted, the TCA defines a “covered employee” for
purposes of the FLSA as an individual (1) who is employed by a motor carrier or
motor private carrier; (2) whose work is defined, in whole or in part, as driver,
driver’s helper, loader, or mechanic and “as affecting the safety of operation of
motor vehicles weighing 10,000 pounds or less in transportation on public
highways in interstate or foreign commerce . . . .”; and (3) who performs duties
on motor vehicles weighing 10,000 pounds or less.          Thus, this language
references the overall weight of “motor vehicles,” such that certain employees
who work on motor vehicles weighing 10,001 or more pounds (i.e., commercial
motor vehicles) are under the jurisdiction of the Secretary of Transportation.
      Last, as noted above, the regulatory construction of commercial motor
vehicle was already in place when SAFETEA-LU and the TCA were enacted, but
Congress did not change the definition of “commercial motor vehicle” in the
SAFETEA-LU or the TCA or indicate that it was rejecting the existing
regulatory definition. Thus, the district court correctly inferred that Congress
intended the existing regulatory construction to continue to apply.
      In sum, the statute is ambiguous concerning whether a “self-propelled
vehicle” with a GVW in excess of 10,000 pounds can include both a truck and an
attached trailer or other combination vehicles. Such a construction is not
precluded by the statutory language, however, and is consistent with its purpose.
Thus, section 390.5’s definition of commercial motor vehicle comports with the
statute and is reasonable. Accordingly, Plaintiffs’ argument that the regulation

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                                  No. 10-20424

is not entitled to Chevron deference lacks merit. Further, Plaintiffs fail to show
that the district court’s application of the regulation was erroneous. On appeal,
Plaintiffs essentially concede that “when combined – the trucks and trailers
weighed over 10,000 pounds.” The district court’s grant of summary judgment
on Plaintiffs’ overtime claim is therefore affirmed.
                                        B.
       In their second issue on appeal, certain Plaintiffs argue that the district
court erred in granting summary judgment sua sponte on their minimum-wage
claims, and that the error was harmful because their evidence raises a material
fact issue.
       Plaintiffs filed a “Motion for Partial Summary Judgment on Liability”
regarding their minimum-wage claims. Though the title of the motion indicated
that Plaintiffs were seeking summary judgment “on liability,” it was relatively
clear that Plaintiffs were seeking summary judgment only on certain issues
related to their minimum-wage claims. Specifically, Plaintiffs stated that they
were seeking “an order recognizing that Defendants failed to pay Plaintiffs for
all compensable time under the FLSA” and that their motion presented four
main issues: whether time spent receiving instructions and loading tools was
compensable, whether time spent traveling was compensable, whether Taylor
was individually liable, and whether Defendants violated the FLSA and Texas
Labor Code by deducting $28 per pay period for workers’ compensation
insurance. Plaintiffs stated that they were not moving for summary judgment
on damages and would “present their testimony regarding damages at the time
of trial.”
       In their conclusion, Plaintiffs expressly sought a summary-judgment
ruling that: (1) “all of the time chipper- and crew foremen-Plaintiffs spent
attending mandatory company meetings is compensable time”; (2) “all of the
time chipper- and crew foremen-Plaintiffs spent attending training sessions

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                                  No. 10-20424

when first hired is compensable time”; (3) “all of the time chipper- and crew
foremen-Plaintiffs spent at Defendants’ Pasadena office receiving instructions
and performing pre-trip work before departing for chipping sites is compensable
time”; (4) “all of the time chipper- and crew foremen-Plaintiffs spent traveling
from the Pasadena office to their first job site, between job sites and the return
trip back to Pasadena is compensable time”; (5) Defendant Taylor is an employer
in his individual capacity; and (6) Defendants violated the FLSA and Texas
Labor Code § 415.006 by deducting $28 per pay period from each Plaintiff’s
paycheck to cover C2C’s workers’ compensation premiums.
      Rather than responding to the specific issues raised by Plaintiffs’ motion,
such as whether the specified activities were compensable, Defendants’ response
contended that “Plaintiffs have failed to prove adequately that Defendants
violated the minimum wage provisions of the FLSA.” Defendants requested that
the district court deny Plaintiffs’ motion.      Defendants stated, “Plaintiffs’
argument is inadequate primarily because other than baldly asserting that
minimum wage violations have occurred, Plaintiffs have done nothing else to
prove these violations to this Court. The FLSA requires more of Plaintiffs than
an inferential assertion that because certain hours were unpaid, a minimum
wage violation therefore occurred.” Defendants argued that Plaintiffs failed to
meet their initial burden of showing that their actual compensation was less
than the minimum wage, that Plaintiffs had not proven that their weekly pay
divided by the number of hours worked in that week yielded an hourly rate for
the whole week that was lower than the statutory minimum wage. Defendants
stated that “Plaintiffs have not carried their burden, and their claims for
minimum wage must be denied at the summary judgment level.”
      Plaintiffs filed a reply, in which they stated,“Notwithstanding Defendants’
efforts to obfuscate, Plaintiffs do not move for summary judgment on their
minimum wage claims.” Plaintiffs repeated that they only sought an order on

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                                  No. 10-20424

specific issues related to whether certain activities were compensable, and
asserted that “[a] ruling on the compensable time issue will allow a trial on
Plaintiffs’ minimum wage and overtime pay claims to proceed more efficiently
and expediently by eliminating issues for which there is no legitimate dispute.”
Plaintiffs further asserted that “Defendants have tacitly conceded [that] the
Court should declare that these activities are compensable as a matter of law”
and “[r]ather than address whether pre-trip work, travel time, and other time
is compensable, Defendants attempt to sidestep the issue.” Plaintiffs stated,
“Defendants simply miss the mark when they argue that Plaintiffs must prove
compensable time violations ‘with definite and certain evidence’ of hours worked.
. . . The issue presently before the Court is not the number of hours worked, but
the compensable nature of the time.”
      Plaintiffs then acknowledged that their burden was ultimately to prove
that they had performed work for which they were improperly compensated and
to produce sufficient evidence to show the amount and extent of the work “as a
matter of a just and reasonable inference,” but stated that “Plaintiffs will
discharge their burden under the lawful standard when the time is appropriate.”
Plaintiffs concluded, “[a]t this time, however, it is not necessary and would be
premature because Plaintiffs simply did not move for summary judgment on
their minimum wage claims.”
      Despite the fact that Plaintiffs made clear that they thought Defendants
had not joined the issues presented in their motion, that they had not moved for
summary judgment on their minimum-wage claims as a whole, and that it would
be premature for them to have to come forward with their evidence of their
actual wages received, the district court concluded that Plaintiffs were on notice
of a potential summary judgment on overall liability because Defendants asked
“in their response to plaintiffs’ motion for summary judgment that the court
deny these claims as a matter of law.” The Court concludes that this was error,

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                                  No. 10-20424

and that Plaintiffs were not adequately placed on notice of a potential summary
judgment on their minimum-wage claims.
      It is true that Defendants’ response stated at one point that “Plaintiffs
have not carried their burden, and their claims for minimum wage must be
denied at the summary judgment level.” But this was not a clear request for the
district court to grant summary judgment in Defendants’ favor. And elsewhere
in their response, including on the first page and in the conclusion, Defendants
stated only that Plaintiffs had not proved their entitlement to summary
judgment, and asked that the district court deny Plaintiffs’ motion. Thus, it was
not clear that Defendants were asking the district court to grant summary
judgment in their favor on the minimum-wage claims. Moreover, Plaintiffs’
response shows that Plaintiffs did not think that Defendants were moving for
summary judgment such that Plaintiffs were required to respond with their
evidence; rather, they reasonably construed Defendants’ response as simply
asserting that Plaintiffs were not entitled to summary judgment on liability
because they had not offered evidence to support minimum-wage violations.
      Given these facts, the district court should have taken the precaution of
notifying Plaintiffs that it was considering summary judgment based on
Plaintiffs’ failure to establish that their effective hourly rates were below the
minimum wage. See Davis v. Howard, 561 F.2d 565, 571 (5th Cir. 1977)
(“Because a litigant ‘cannot read over the judge’s shoulder, or penetrate his
memory,’ the nonmoving party must also have some notice of what ‘contention’
or issue is placing his case in jeopardy.”) (quoting Soley v. Star & Herald Co., 390
F.2d 364, 369-70 (5th Cir. 1968)). Instead, the district court granted summary
judgment without adequate notice to Plaintiffs.
      All but six of the Plaintiffs filed a Motion to Alter or Amend the Judgment,
arguing that the district court erroneously granted summary judgment without
notice, and submitting evidence in support of their claims. Plaintiffs asserted

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                                  No. 10-20424

that they had no notice that the district court was considering summary
judgment on the entire case, and that the summary judgment was harmful
because Plaintiffs could adduce evidence supporting their minimum wage
claims, as demonstrated by declarations of six Plaintiffs attached to the motion.
Plaintiffs acknowledged that their motion was misnamed as a motion for partial
summary judgment on liability, as they merely sought an order on specific issues
relating to their minimum-wage claims to simplify the presentation of their
claims for trial. Plaintiffs noted that Defendants did not ask the Court to grant
summary judgment in their favor in the response brief, but simply asked the
district court to deny Plaintiffs’ motion. Thus, Plaintiffs stated, they did not
present evidence to establish a prima facie case of minimum-wage violations, nor
were they on notice that the court was considering dismissal of the entire case.
Plaintiffs stated that, had they been on notice, they would have presented their
evidence. The district court summarily denied Plaintiffs’ motion.
      On appeal, Plaintiffs make essentially the same arguments they made in
their motion to alter or amend. Defendants argue that they did ask for summary
judgment as a matter of law in their response brief and requested that Plaintiffs
come forward with proof. They argue that this, and the fact that Plaintiffs filed
a motion for summary judgment, put Plaintiffs on notice to come forward with
their evidence in their reply brief, but they chose not to.
      Defendants rely on two circuit court cases – Gibson v. City of Wilmington,
355 F.3d 215, 223-25 (3rd Cir. 2004) and Jones v. Union Pac. R.R. Co., 302 F.3d
735, 740-41 (7th Cir. 2002) – to support their position that the district court
appropriately granted summary judgment. In Gibson, the Third Circuit Court
of Appeals recognized an exception to the notice requirement for sua sponte
summary judgment when three conditions are met: “(1) the point at issue is
purely legal; (2) the record was fully developed, and (3) the failure to give notice
does not prejudice the party.” Gibson, 355 F.3d at 219. Plaintiff Gibson had

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                                   No. 10-20424

moved for summary judgment on the issue of whether the municipal policy
under which he was terminated was overbroad and vague. The district court
denied the motion, stating that there were genuine issues of material fact.
However, on the morning of trial, the district judge invited counsel into
chambers and “announced that he was granting summary judgment sua sponte
to [defendant] on the issue of overbreadth.” The Third Circuit noted that,
because discovery was closed, “full opportunity for discovery had already
obtained” and “[i]ndeed Gibson had every opportunity to present his position to
the Court, and it was he who moved for summary judgment on the issues of
vagueness and overbreadth.” Id. at 223. The court found convincing the
defendant’s argument that, “in moving for summary judgment, Gibson had
clearly marshaled enough evidence to support his case and was therefore not
prejudiced by the lack of notice in the sua sponte grant of summary judgment.”
Id.
      The Gibson court noted that the First Circuit has defined “notice” to mean
“that the targeted party ‘had reason to believe the court might reach the issue
and received a fair opportunity to put its best foot forward.’” Id. at 223-24 (citing
Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999)). “Given that it
was Gibson who moved for summary judgment on the issues of vagueness and
overbreadth,” the Third Circuit reasoned, “he certainly had the opportunity to
put his ‘best foot forward.’” Gibson, 355 F.3d at 224. The court further noted
that “other courts have taken the position that when a party has had the
opportunity to present all the evidence that would be used to oppose a motion for
summary judgment, the fact that the actual notice was not given becomes
irrelevant if the party was not prejudiced by that lack of notice.” Id. The court
also positively cited to cases holding that a district court’s sua sponte grant of
summary judgment on purely legal questions based on complete evidentiary
records was appropriate. The Court then held that the presence of all three

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                                  No. 10-20424

factors – a fully developed record, the lack of prejudice, and a decision based on
a purely legal issue – would justify sua sponte summary judgment without
notice, but it did not decide if fewer than all three would suffice.
      The court cautioned, however, that “the sua sponte grant of summary
judgment, without giving notice to the parties, is not the preferred method by
which to dispose of claims. This is so not only because district courts run the
risk of unduly prejudicing the parties, but also because such grants of summary
judgment can have serious, if unintended, consequences.” Id. at 224-25. Thus,
“it is preferable for the District Court to give notice to the parties when it is
considering a sua sponte grant of summary judgment because of the potential
consequences such a grant may engender.” Id. at 225.
      In Jones v. Union Pacific R. Co., 302 F.2d 735 (7th Cir. 2002), the court
noted that though “granting summary judgment sua sponte is a ‘hazardous’
procedure which ‘warrants special caution’ and is often unnecessary, it remains
permissible.” Id. at 740. It held that “[w]hen there are no issues of material fact
in dispute, a district judge may grant summary judgment in favor of the non-
moving party or may grant summary judgment even though no party has moved
for summary judgment . . . as long as the losing party is given notice and an
opportunity to come forward with its evidence.” Id. (citations omitted). In Jones,
the court found that the plaintiff was not deprived of the opportunity to present
evidence when he “had moved for summary judgment and marshaled all the
favorable evidence available in support of that motion” and “when [the plaintiff]
moved for summary judgment both parties were on notice that summary
judgment was under active consideration.” Id. (emphasis in original). Further,
the court held, “the defendant’s response to the plaintiff’s motion for summary
judgment put [the plaintiff] on further notice by stating that the court should
consider the response ‘in the nature of a cross-motion for summary judgment.”
Id. The plaintiff therefore had an opportunity to respond to the defendant’s

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                                       No. 10-20424

cross-motion statement in his reply brief, but chose not to do so, and raised no
objection to the defendant’s request for summary judgment. Id.
       Both these cases are distinguishable on the facts.15                  Despite some
ambiguity in Plaintiffs’ motion, it was ultimately clear that Plaintiffs did not
move for summary judgment as to overall liability on their minimum-wage
claims, but only sought a ruling on specific issues related to their claims
(primarily the compensability of certain time). Thus, this is not a situation in
which a plaintiff moves for summary judgment and puts forth all its evidence on
the issue on which the court then grants summary judgment sua sponte in favor
of a non-movant defendant. See Kannaday v. City of Kiowa, 590 F.3d 1161, 1171
(10th Cir. 2010) (“When a district court’s sua sponte determination is based on
issues identical to those raised by a moving party, the risk of prejudice is
significantly lowered because ‘the judge already is engaged in determining
whether a genuine issue of material fact exists and the parties have been given
an opportunity to present evidence designed either to support or refute the
request for the entry of judgment.”). Instead, it was clear that Plaintiffs had not
put forth their summary-judgment evidence on the issue on which the district
court granted summary judgment, and did not realize the need to do so.
       Defendants did not clearly and expressly move for summary judgment in
their favor, and Plaintiffs objected to the fact that Defendants were complaining
about a lack of evidence on overall liability in response to Plaintiffs’ motion on
different, limited issues. Thus, Plaintiffs were not on notice of a pending


       15
          Defendants also cite O’Mara v. GEICO General Insurance Co., Civ. A. No. 09-CV-
229-GKF-FHM, 2010 WL 2690370 (N.D. Okla. July 2, 2010), in support of the district court’s
sua sponte summary judgment. O’Mara is also distinguishable, however, because even though
defense counsel stated at the hearing on the plaintiff’s motion for summary judgment that he
was not asking for summary judgment and preferred trial, plaintiff’s counsel suggested at the
motion hearing that the issue could be decided as a matter of law, and the court discussed with
both counsel whether the court ought to grant summary judgment on the issue in favor of
defendants.

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                                       No. 10-20424

summary judgment against them, and it should have been apparent that entry
of summary judgment would have been an unfair surprise. Accordingly, the
entry of summary judgment sua sponte was error. See R.J. Corman Derailment
Servs., LLC v. Int’l Union of Operating Eng’rs, Local Union 150, AFL-CIO, 335
F.3d 643, 650 (7th Cir. 2003) (“[T]he fact that [plaintiff] itself sought summary
judgment for different reasons does not mean that it was fairly apprised of the
ultimate basis for the district court’s reasoning. This is the precise reason why
our court has repeatedly explained that it is appropriate to grant summary
judgment sua sponte only when it is clear that neither side will be disadvantaged
or unfairly surprised by the move.”).
       However, failure to provide proper notice is harmless error “if the
nonmovant has no additional evidence or if all of the nonmovant’s additional
evidence is reviewed by the appellate court and none of the evidence presents a
genuine issue of material fact.” Id.             Because Plaintiffs offered additional
evidence, this Court reviews the evidence to determine whether it presents a
genuine issue of material fact.
       The district court granted summary judgment based on Plaintiffs’ failure
to meet their initial burden to show a violation of the minimum-wage
requirement.       Specifically, the district court found that the workers had
produced no evidence concerning how many hours Plaintiffs worked for which
they were not compensated and had not shown that their total number of weekly
hours worked divided by their weekly pay was less than minimum wage.16 The


       16
           The district court derived this weekly average wage standard from United States v.
Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960). Defendants urged application
of this standard in the district court, and they do so on appeal. The workers did not take issue
with this standard in the district court or on appeal. The Court therefore will determine
whether the workers have presented sufficient evidence to create a material issue of fact under
this standard. But see Norceide v. Cambridge Health Alliance, Civ. A. No. 10-CV-11729-NG,
2011 WL 3895126 (D. Mass. Aug. 28, 2011) (rejecting application of the weekly average wage
standard in favor of an hour-by-hour standard).

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                                     No. 10-20424

district court further found that the minimum-wage claim related to the workers’
compensation deductions failed for the same reasons – because they failed to
show that this deduction reduced their pay below the applicable minimum wage.
       In their motion to reconsider, Plaintiffs asserted that, had they been given
notice, they would have filed evidence, including but not limited to the
declarations of Pablo Chable, Antonio Ramirez, Ricardo Flores, Ernesto Ramos,
Carlos Diaz, and Mariano Buendia.                They contended that they “had no
opportunity to submit this and other additional evidence because they did not
receive notice.” In a footnote to their motion, the workers stated that “[e]ach
chipper logged the same or roughly the same number of compensated and
uncompensated but compensable hours as the other chippers on their work crew
resulting in a minimum wage violation for each plaintiff.” The workers also
asked the district court, upon granting their motion to reconsider, to determine
whether C2C violated the FLSA by deducting $28.00 from each of their
paychecks to pay the company’s workers’ compensation premiums and the other
issues, such as compensability of certain activities, raised in the workers’ motion
for partial summary judgment.
       Plaintiffs’ additional evidence includes affidavits, spreadsheets, time logs,
and pay records for six Plaintiffs – Pablo Chable, Antonio Ramirez, Ricardo
Flores, Ernesto Ramos, Carlos Diaz, and Mariano Buendia. According to Pablo
Chable’s affidavit, he began working as a chipper in April 2006. Chable states
that he was paid $11 per hour for 23 hours in the week of October 28, 2007, but
once travel time was factored in, he was only effectively paid $5.31 per hour.17
He also submitted a spreadsheet summarizing the total hours worked divided


      17
         Travel time was estimated by dividing the miles traveled (derived from GPS records
produced by Defendants) by 50 mph. Plaintiffs state that the speed limit was 65 mph, but 50
mph was used to be conservative. Whether this is a reliable method of determining travel
time has not been challenged by Defendants, and the Court makes no determination on this
issue.

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                                      No. 10-20424

by the hourly pay for the weeks ending September 30, 2007 through February
24, 2008. The spreadsheet shows that he was also paid less than minimum wage
for the weeks ending January 6, 2008, January 27, 2008, and February 17, 2008,
and that Chable was thus owed $510.59 for the period between September 2007
and February 2008. The spreadsheet then estimates an average amount owed
per week of $30.08 ($510.59 divided by seventeen weeks worked). Since Chable
worked 98 weeks, the spreadsheet then estimates a total amount of minimum
wages owed as $2,943.40. This does not include the additional amount withheld
for workers’ compensation premiums, which is estimated at $1,372, and would
further reduce Chable’s effective hourly pay rate.
       The evidence submitted by the other five chipper Plaintiffs is similar.
Given the status of this case, in which no determination has yet been made
regarding the compensable nature of the time spent receiving instructions and
loading tools, traveling from Pasadena to job sites, in between job sites and back
to Pasadena, and the time spent at training meetings, this evidence is sufficient
to raise a fact issue on the minimum-wage claims of the affiants.
       Defendants contend that, even if the summary-judgment evidence
submitted by the six Plaintiffs raises a material fact issue as to their claims,
summary judgment should nevertheless be affirmed as to all other Plaintiffs.
These other Plaintiffs include certain named Plaintiffs – Alvaro Albanil, Antonio
Buendia, Santos Chable, Jose Herrera, Elvin Marin, and Noe Martinez – and all
the opt-in Plaintiffs except Ernesto Ramos, who submitted evidence.18 Plaintiffs
assert that all workers were paid the same way, and thus their evidence is
sufficient to raise a fact issue on all of the workers’ claims, though each worker




       18
         As noted, six of the workers (four chippers and the two foremen) admitted that their
hourly rates were high enough that, even considering non-compensated time, they were paid
more than the minimum wage. Thus, summary judgment as to these Plaintiffs is appropriate.

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                                   No. 10-20424

will have to provide evidence at trial to support both liability and their specific
damages.
      Where an employer has failed to maintain accurate payroll records, an
employee carries his burden to establish a prima facie case under the FLSA if
he shows he performed work for which he was improperly compensated and
produces some evidence to show the amount and extent of that work “as a matter
of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 687 (1946). This court and other circuit courts of appeals have recognized
that the Mt. Clemens Pottery standard allows plaintiffs to establish a prima facie
case for non-testifying employees based on the “fairly representational”
testimony of other employees. Brennan v. Gen. Motors Acceptance Corp., 482
F.2d 825, 829 (5th Cir. 1973) (holding that the plaintiffs established a prima
facie case that all plaintiffs worked unreported hours through representative
testimony); see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 67
(2d Cir. 1997) (“In meeting the burden under Mt. Clemens, the Secretary need
not present testimony from each underpaid employee; rather, it is
well-established that the Secretary may present the testimony of a
representative sample of employees as part of his proof of the prima facie case
under the FLSA.”); Reich v. S. Md. Hosp., Inc., 43 F.3d 949,951 (4th Cir. 1995)
(“[T]he Secretary can present testimony from representative employees as part
of his proof of the prima facie case.”); Secretary of Labor v. DeSisto, 929 F.2d 789,
792 (1st Cir. 1991) (recognizing that “the Secretary can rely on testimony and
evidence from representative employees to meet the initial burden of proof
requirement.”); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1298 (3d Cir. 1991)
(“The testimony and evidence of representative employees may establish prima
facie proof of a pattern and practice of FLSA violations.”); Brock v. Norman's
Country Mkt., Inc., 835 F.2d 823, 828 (11th Cir. 1988) (“[I]t is clear that each
employee need not testify in order to make out a prima facie case of the number

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                                  No. 10-20424

of hours worked as a matter of ‘just and reasonable inference.’ ”); McLaughlin
v. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988) (five employees were
sufficiently representative of twenty-eight plaintiffs). “[M]ost cases resting on
representational evidence ‘involve a fairly small employee population, a limited
number of employee positions, and uniform work tasks.’” Reich, 121 F.3d at 67.
In this case, Plaintiffs submitted affidavits and other evidence from six Plaintiffs
as representative testimony for approximately thirty-five chipper Plaintiffs.
      In Brennan, reviewing the trial court's findings under a clearly erroneous
standard, we affirmed a judgment in favor of thirty-seven employees on their
overtime claims when the district court found, based on the testimony of sixteen
representative employees and an investigator, that a certain class of employee
worked unreported overtime hours. Brennan, 482 F.2d at 829. We held that,
from these two sources, “the trial court might well have concluded that plaintiff
had established a prima facie case that all thirty-seven employees had worked
unreported hours” such that the burden of proof shifted to the defendant to show
which of the employees had reported all overtime hours. Id.
      Further, in Beliz v. W.H. McLeod & Sons Packing Co.,765 F.2d 1317 (5th
Cir. 1985), we reversed a summary judgment on the plaintiffs’ minimum-wage
claims where the district court found that evidence concerning hours worked by
individual plaintiffs was lacking. Taking into account the testimony of a few
witnesses regarding the number of hours worked by the family groups of
workers, it was apparent from the pay records that there was an egregious
minimum wage violation for every worker in the crew. Id. at 1331. Therefore,
“the only inexactness that could be found in the plaintiffs’ case lay in the
evidence concerning the hours worked by each member of each family unit.” Id.
Three plaintiff witnesses testified about the hours they, their spouses and
children, and other families worked. Id. We held, “[I]t is clear that each
employee need not testify in order to make out a prima facie case of the number

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                                  No. 10-20424

of hours worked as a matter of just and reasonable inference.” Id. Testimony
of some employees concerning the hours worked by groups of non-testifying
employees is sufficient if those who do testify have personal knowledge of the
work performed by those who do not. Id. Thus, the testimony of three witnesses
who testified about the hours their families and other families worked was
sufficient to approximate the number of hours worked.
      In Von Friewalde v. Boeing Aerospace Operations, Inc., 339 Fed. App’x 448
(5th Cir. 2009), we affirmed summary judgment against those plaintiffs in a
collective action who came forward with no summary-judgment evidence and
had not provided any substantive answers to the defendant’s interrogatories. Id.
at 455-56. The appellants argued that there was a “common nucleus of liability
facts” among all of their claims, but after reviewing the evidence, we found
instead that “the details surrounding each of their claims vary in significant
ways, such that few if any of the appellants” were similarly situated for purposes
of the FLSA. Id. at 456. Further, we found that “the claims of all those
appellants who [had] not produced any evidence at all . . . necessarily fail[ed]”
because those appellants had numerous opportunities to provide deposition
testimony, affidavits, documents, or answers to interrogatories in support of
their claims. Id. But as it stood, we knew “nothing of those appellants other
than their names and the fact that they were allegedly employed in some
unidentified capacity.” Id.
      This case, in contrast to Von Friewalde, satisfies the requirement that the
testifying employees are “fairly representational.” Because the two foremen
Plaintiffs did not challenge the award of summary judgment on the minimum-
wage claims, all remaining Plaintiffs are chippers. The parties stipulated that
the chippers were employees of Defendants during the relevant time periods. In
certifying the chipper class, the district court found and Defendants admitted
“that all of their chippers perform the same or similar duties as the named

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                                      No. 10-20424

plaintiffs and receive pay similar to the named plaintiffs.” The district court
further found that the chippers regularly work in excess of forty hours per week
while they are traveling, the chippers perform the same or similar duties, that
all chippers are subject to a common pay policy, and that the experiences of the
named plaintiffs are typical to those of the other chippers.19 In addition, the
affidavits submitted by the six chippers all state that they worked side-by-side
with the other chippers on their crew; that they traveled together and performed
the same work; and that they had seen their paychecks and they also were not
paid for time spent performing work before departing Pasadena, or traveling to
and from Pasadena and between chipping sites. Further, Defendants have
admitted to deducting $28 from every chipper’s paycheck for workers’
compensation insurance, which would further reduce the workers’ hourly wage
rate.20
       Given the procedural posture of this case, the evidence submitted is
sufficient to raise a fact issue concerning all of the appealing chippers’ minimum-
wage claims such that remand of their claims is appropriate. On remand, once
the district court makes the predicate determination of what activities are
compensable,21 Plaintiffs should be able to come forward with a more exact

       19
            Defendants have not cross-appealed or otherwise challenged the district court’s
certification order or any of its findings therein.
       20
           Defendants also contend that Plaintiffs have waived their claims based on the
workers’ compensation deduction in relation to their minimum-wage claim by failing to
specifically address it in their appellate brief. However, it is undisputed that Defendants
deducted $28 from every chipper’s paycheck, and the workers’ compensation deduction is
simply an aspect of Plaintiffs’ minimum-wage claim. The district court dismissed this aspect
of the claim on the same basis as the rest of the minimum-wage claim – that Plaintiffs failed
to show that their actual wages were below the minimum wage – and Plaintiffs have
appropriately preserved, briefed, and submitted evidence related to their minimum-wage
claim, including the workers’ compensation deductions.
       21
          The district court assumed without deciding that the activities were compensable
as argued by Plaintiffs, and held that Plaintiffs had not demonstrated a minimum-wage
violation even considering those hours. Because we reverse the district court’s grant of

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                                      No. 10-20424

determination of their actual hourly wages. On remand, we leave to the district
court in the first instance the determination of how to obtain precise proof of
damages regarding each remaining plaintiff.
                                           III.
       We AFFIRM IN PART the judgment of the District Court with regard to
all Plaintiffs’ overtime claims and with regard to the minimum-wage claims
brought by Pedro Buendia, Gerardo Ramirez, Hector Albanil, Martin Albanil,
Abel Ramirez, and Martin Rivas. We REVERSE the judgment of the District
Court with regard to the remaining Plaintiffs’ minimum-wage claims and
REMAND for further proceedings consistent with this opinion.




summary judgment on the issue of whether Plaintiffs demonstrated that they were paid less
than minimum wage, the determination of whether the activities were compensable is once
again a live issue. On remand, the district court should evaluate Plaintiffs’ motion for
summary judgment and accompanying evidence to determine whether Plaintiffs satisfied their
summary-judgment burden. See John v. State of La., 757 F.2d 698, 709 (5th Cir. 1985)
(holding that, “[i]n the light of Rule 56’s clear command that a party need not respond to a
motion for summary judgment unless the moving party discharges its initial burden,” a
summary judgment cannot be supported solely on the ground that a party failed to respond
to a motion for summary judgment).

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