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Wilkinson v. High Plains, Inc.

United States District Court, D. North Dakota

March 1, 2018

Austin Wilkinson, on behalf of himself and all others similarly situated, Plaintiffs
High Plains Inc. and Missouri Basin Well Service, Inc. d/b/a MBI Energy Services, Defendants.


          Daniel L. Hovland, Chief Judge.

         Before the Court are the Plaintiffs' Motion for Partial Summary Judgment and the Defendants' Motion for Summary Judgment, both of which were filed on March 31, 2017. See Docket Nos. 47 and 59. The cross-motions for summary judgment have been fully briefed. See Docket Nos. 48, 60, 66, 71, 73 and 74. Also before the Court is the Plaintiff's Motion to Strike filed on May 12, 2017. See Docket No. 70. The Defendants filed a response in opposition to the motion on May 26, 2017. See Docket No. 80. The Plaintiffs filed a reply on June 6, 2017. See Docket No. 81. For the reasons set forth below, the Plaintiffs' motion for partial summary judgment is granted, the Defendants' motion for summary judgment is denied, and the Plaintiffs' motion to strike is denied.

         I. BACKGROUND

         Defendant Missouri Basin Well Service, Inc. d/b/a MBI Energy Services (“MBI”) is a fluid management logistics and well-intervention provider that was founded in North Dakota in 1979. In 2011, MBI acquired High Plains, Inc. (“HPI”), also a North Dakota corporation. In June 2016, HPI officially merged with MBI. During the relevant time period, MBI and HPI served the Williston Basin and Rocky Mountain regions providing well-intervention services for their oil company customers.

         The Plaintiffs were employed by Defendants as wireline operators. The Plaintiffs provided oil and gas well perforation services to the Defendants' customers in the oil and gas industry. The Defendants paid members of their wireline crews a base hourly rate plus overtime at one-and-one-half times the base hourly rate for hours worked over forty hours in a workweek. The Plaintiffs regularly worked in excess of 40 hours per week. The Plaintiffs also received bonuses that were not included in the regular rate used to calculate overtime. Bonuses were paid if the job was performed satisfactorily and with no safety issues. The bonuses, which are sometimes referred to as commissions, were calculated based on a percentage rate each individual operator received times the revenue they produced while on duty at a job site, as set forth on a job ticket.

         Wireline operators were classified into two different crews: a pump down crew or a service/day job crew. The Plaintiffs primarily worked on pump down crews. A pump down crew typically consisted of three to four operators working under the supervision of one engineer. The crew drove the necessary vehicles to the job site. The Plaintiffs' job included the use of a fleet of pickup trucks, wireline trucks (also referred to as loggers), cranes, and associated equipment for completions, logging, pipe recovery, and related cased-hold e-line services. Except for the pickup trucks, most of these vehicles weighed more than 10, 000 pounds. The wireline operators were required to maintain a commercial drivers license. The engineer was usually assigned a pickup which was used for many purposes, including transporting the crew to and from the job site at the beginning and end of each shift. One or two pickups trucks would be assigned to each job.

         The Plaintiffs loaded and drove pickup trucks as part of their job duties, including to and from drilling locations. The Defendants kept no record of which vehicles were driven by which Plaintiffs or when. The Plaintiffs' job duties also included regularly making hotshot runs with pickup trucks running a tool or supplies to an oil site where a crew was working so that the crew could continue the job. Other job duties included driving pickup trucks to pick up parts, taking the pickups to get serviced and/or to get windshields put in, and transferring the vehicles from one of the Defendants' yards to another. The majority of the pickup trucks in the Defendants' fleet have a gross vehicle weight rating (“GVWR”) of 10, 000 pounds or less. See Docket No. 60-3. Because the Plaintiffs' work involved the use of vehicles which weighed 10, 000 pounds or less as well as vehicles which weighed more than 10, 000 pounds, their work is often referred to as “mixed fleet” operations.

         The Defendants paid the Plaintiffs overtime at a rate of one-and-one-half the regular hourly rate, but excluded bonuses in calculating the hourly rate. The Plaintiffs contend the Defendants violated the Fair Labor Standards Act (“FLSA”) and the North Dakota Administrative Code by failing to include bonuses in calculating the regular rates of pay used to calculate overtime premiums. The Defendants claim the Plaintiffs were exempt from the FLSA overtime requirements based on the Motor Carrier Act (“MCA”) exemption. The parties have filed cross-motions for summary judgment on the FLSA claims.


         Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.R.Civ.P. 56(a). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.

         The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the responsibility of informing the court of the basis for the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving party may not rely merely on allegations or denials in its own pleading; rather, its response must set out specific facts showing a genuine issue for trial. Id.; Fed.R.Civ.P. 56(c)(1). The court must consider the substantive standard of proof when ruling on a motion for summary judgment. Anderson, 477 U.S. at 252.



         The Plaintiffs contend the Defendants have failed to plead the MCA exemption defense with sufficient particularity. The Court is unpersuaded. In their answer, the Defendants pled “[t]he Plaintiff and putative class members meet one or more exemptions from overtime pay under the FLSA and/or comparable exemptions under North Dakota law.” See Docket No. 5, ¶ 53. While it is true that this affirmative defense does not expressly reference the MCA exemption or the statute under which it falls, 29 U.S.C. § 213(b)(1), this omission does not result in a waiver of the defense.

         When reviewing a defendant's answer, courts within the Eighth Circuit are guided by the principle of “substance over form.” Johnson v. Derhaag Motor Sports, Inc., No. 13-cv-2311, 2014 WL 5817004, at *9 (D. Minn. Nov. 10, 2014). That is, “while an affirmative defense must be asserted in a responsive pleading, it need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of Rule 8 by its bare assertion.” Id. (quoting Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir. 1997)). “Neither a statute citation, nor the proper name of a defense is required in order to meet the Eighth Circuit's minimal pleading standard for affirmative defenses.” Id. at *10. In addition, the Defendants' assertion of the defense at the summary judgment stage hardly comes as a surprise to the Plaintiffs. See Elliott v. Schlumberger Tech. Corp., No. 3:13-cv-79, 2015 WL 11393819, at *3 n.2 (D.N.D. Aug. 14, 2015) (stating that “if an affirmative defense is later raised in a manner that does not result in unfair surprise, failure to comply with [Rule 8] is not fatal”). The Court finds as a matter of law that the Defendants have properly pled the MCA exemption as a defense.


         The general rule under the FLSA is that an employer must pay employees one-and-a-half times their regular rate when they work more than forty hours per week. 29 U.S.C. § 207(a)(1); McCall v. Disabled Am. Veterans, 723 F.3d 962, 966 (8th Cir. 2013); Lang v. City of Omaha, 186 F.3d 1035, 1036 (8th Cir. 1999). However, there are several exemptions to the ...

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