Kebin Valentin, et al v. 1245, LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12902
Non-Argument Calendar
____________________
KEBIN VALENTIN,
a.k.a. Kevin Valentin,
MATTHEW DAVID VALENTIN,
ANABELY ACEVEDO,
Plaintiffs-Appellants,
versus
1245, LLC,
RMRP REALTY, LLC,
RONALD T. FATATO,
RONALD J. FATATO,
INTER STATE SALES CORP.,
d.b.a. Interstate Sales Corp., et al.,
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2 Opinion of the Court 22-12902
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-62263-AHS
____________________
Before R OSENBAUM , J ILL PRYOR , and ANDERSON, Circuit Judges.
PER CURIAM:
Kebin Valentin, Matthew Valentin, and Anabely Acevedo ap-
peal the district court’s grant of Appellees’ motion for summary
judgment in their claim for overtime pay under the Fair Labor
Standards Act (“FLSA”). On appeal, Appellants argue that the dis-
trict court erred when it held that they failed to establish individual
coverage. They also argue that they qualify under the FLSA as do-
mestic service employees.
I.
An employee must demonstrate that he is covered by the
FLSA in order to be eligible for overtime pay. Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). There
are two types of FLSA coverage: First, an employee may claim “in-
dividual coverage” if he regularly and directly participates in the
actual movement of persons or things in interstate commerce; sec-
ond, an employee is subject to enterprise coverage if he is
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22-12902 Opinion of the Court 3
employed in an enterprise engaged in commerce or in the produc-
tion of goods for commerce. 1
On appeal, Appellants claim coverage only pursuant to “in-
dividual coverage.” We held in St. Elien v. All County Environment
Services, Inc., 991 F.3d 1197, 1200 (11th Cir. 2021), that “one who . .
. regularly uses the instrumentalities of interstate commerce in his
work, e.g., regular and recurrent use of interstate telephone, tele-
graph, mails, or travel is one who directly participates in the actual
movement of persons or things in interstate commerce.” Id. at 1200
(internal quotation and punctuation omitted). See also id. at 1201
(quoting 29 C.F.R. § 779.103: “[e]mployees are ‘engaged in com-
merce’ within the meaning of the Act when they are performing
work involving or related to the movement of persons or things
(whether tangibles or intangibles, and including information and
intelligence) among the several States or between any State and any
place outside thereof ”); id. (quoting 29 C.F.R. § 776.23(d)(2):
“[E]mployees who regularly use instrumentalities of commerce,
such as the telephone, telegraph and mails for interstate communi-
cation are within the scope of the Act.”). In St. Elien, we held that
evidence of an employee’s three to five interstate telephone calls
per week provided a legally sufficient basis for a reasonable jury to
find that the employee falls within the coverage of the Act. Id. at
1198.
1 Appellants have abandoned their claim to qualification for overtime
under enterprise coverage by failing to brief it on appeal.
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4 Opinion of the Court 22-12902
In his declaration, Kebin Valentin attested that he spoke to
Appellees’ New York-based employees several times each week as
part of his job; Appellants Matthew Valentin and Anabely Acevedo
claim coverage indirectly through Kebin Valentin’s communica-
tions. The Appellees asserted that Kebin only communicated with
Appellee Ronald T. Fatato who lives in Florida and Kebin only had
communications with the office in New York on isolated occasions.
The district court acknowledged this dispute in its order but
credited Appellees’ statement of the facts. This was error. “When
considering a motion for summary judgment, . . . ‘courts must con-
strue the facts and draw all inferences in the light most favorable to
the nonmoving party and when conflicts arise between the facts
evidenced by the parties, [they must] credit the nonmoving party’s
version.’” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th
Cir. 2013) (alteration in original) (quoting Davis v. Williams, 451 F.3d
759, 763 (11th Cir. 2006)). We have stated that the nonmoving party
may rely on self-serving affidavits to withstand a motion for sum-
mary judgment. United States v. Stein, 881 F.3d 853, 858 (11th Cir.
2018)(en banc). Further, we explained that Federal Rule of Civil
Procedure 56 does not “require an otherwise admissible affidavit be
corroborated by independent evidence.” Id. Thus, “even in the
absence of collaborative evidence, a plaintiff’s own testimony may
be sufficient to withstand summary judgment.” Id. (quoting Strick-
land v. Norfolk S. Ry. Co., 692 F.3d 1151, 1160 (11th Cir. 2012)). Any
requirement for corroboration must come from a source other
than Rule 56. Id. at 858. Thus Kebin’s affidavit is sufficient to create
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22-12902 Opinion of the Court 5
a genuine issue of material fact on whether he was a covered em-
ployee.
The same is not true for Matthew and Anabely. We have
stated that the employees seeking to establish that they are “en-
gaged in commerce” under the FLSA must be “directly participating
in the actual movement of person or things interstate commerce.”
Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir.
2006) (emphasis added). Thus, Matthew and Anabely’s admission
that they were not involved in the phone calls Kebin says he partic-
ipated in to the New York office is fatal to their claim.
For the foregoing reasons, the district court’s order is va-
cated in part and affirmed in part. We remand to the district court
for further proceedings not inconsistent with this opinion.2
VACATED and REMANDED in part, AFFIRMED in part.
2 We reject Appellants’ incomplete and belated argument that they
qualify under the FLSA as domestic service employees. Appellants raised this
issue for the first time in their answer to the Appellees’ motion for summary
judgment and never amended their complaint. “At the summary judgment
stage, the proper procedure for plaintiffs to assert a new claim is to amend the
complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not amend
her complaint through argument in a brief opposing summary judgment.”
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). In
recognition of that rule, the district court did not address the issue in its order.
We likewise will not acknowledge this improperly raised argument.
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