United States District Court, D. North Dakota
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.
ORDER ON MOTIONS
L. Hovland, Chief Judge.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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.
FAILURE TO PLEAD DEFENSE
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.
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.
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 ...