ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss (Docket #8),Plaintiff's Motion for Attachment and Trustee Process (Docket #2),Plaintiff's Motion to Strike Section II of Defendant's Memorandum of Lawin Reply to Plaintiff's Opposition to Motion to Dismiss (Docket #16), andPlaintiff's Motion for Leave to File a Sur-Reply Memorandum (Docket#16).
Defendant does not state under which rule it moves for dismissal, butbased on the tone of the filings, the Court assumes that Defendant filedits Motion pursuant to Rule 12(b)(6). For the reasons discussed below,the Court DENIES Defendant's Motion to Dismiss and the Court DENIESPlaintiff's Motion for Attachment and Trustee Process. Based on theserulings, the Court finds that Plaintiff's Motion to Strike and Motion forLeave are MOOT.
I. MOTION TO DISMISS
A. Standard of Review
Generally, a court may dismiss a claim under Fed.R.Civ.P. 12(b)(6) onlyif it clearly appears that, on the facts alleged in the complaint, theplaintiff cannot recover on any viable theory. See Gonzalez-Morales v.Hernandez-Arencibia, 221 F.3d 45, 48 (1st Cir. 2000). When considering amotion to dismiss, a court must accept as true all of a plaintiff'swell-pleaded factual averments and indulge every reasonable inference inthe plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez,903 F.2d 49, 52 (1st Cir. 1990).
When considering a motion to dismiss, the Court should look only to thecontents of the complaint. Both parties, however, have filed affidavitsand have argued about facts of the case extrinsic to the Complaint. Whenthe parties submit evidence in such a fashion, a court sua sponte mayconvert a 12(b)(6) motion to a Rule 56 motion for summary judgment.See, e.g., Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990). In thiscase, however, each party has submitted evidence in a disorganizedmanner, responding to some of the opposing party's allegations yetignoring others, leaving the Court in a quandary as to which avermentsthe Court should view as undisputed.
When the factual record is sketchy, the Court prefers to rely on theprocedural mechanisms commensurate with a Rule 56 motion, whereby theparties must file statements of material fact which help clarify to theCourt what disputes present genuine issues of fact. See Local Rule 56.In this case, the parties have not filed any statements of materialfacts. Therefore, the Court declines to convert the Motion to Dismissinto a motion for summary judgment. Pursuant to the 12(b)(6) standard ofreview, the Court adumbrates the facts of the case below.
Plaintiff Malcolm Gerard was an employee of Defendant NorthernTransportation, LLC, from 1997 to 2000. As an employee of NorthernTransportation, Gerard regularly worked more than forty hours per week.No matter how many hours that Gerard worked, Northern Transportation paidhim the same hourly rate. Gerard complains that during weeks that heworked more than forty hours, he was entitled to overtime compensation atan increased hourly rate.
Plaintiff argues that by refusing to compensate him for the overtimehours that he worked, Defendant has violated the federal Fair LaborStandards Act ("FLSA"), 29 U.S.C. § 201 et seq., and Maine's minimumwage statutes, 26 M.R.S.A. § 661 et seq. Pursuant to both federal andstate law, the general rule is that if an employee works more than fortyhours in a week, the employer must pay the employee overtime compensationof no less than 150% the usual hourly wage. See 29 U.S.C. § 207(a)(1);26 M.R.S.A. § 664(3).
In his Complaint, Plaintiff avers that he was an employee ofDefendant, that he often worked more than forty hours in a week, but thatDefendant never paid him an overtime wage. Therefore, Plaintiff hasstated a prima facie case of a violation of the FLSA and Maine's minimumwage laws. In rebuttal, Defendant argues that exceptions to theseovertime laws apply. Intrinsic in this argument, however, is heavyreliance upon numerous factual averments. At this stage in theproceedings, the Court is not inclined to consider disputed factualallegations. Therefore, Defendant's arguments fail to convince thisCourt to dismiss Plaintiff's claims as a matter of law.
II. MOTION FOR ATTACHMENT
Plaintiff has moved pursuant to Rule 64 for a writ of attachmentagainst the goods or estate of Defendant in the amount of $26,055.00 asprejudgment security. The Court first should consider "the law of thestate in which the district court is held," unless federal orconstitutional law dictates otherwise. See Fed.R.Civ.P. 64. Under Mainelaw, an order attaching a defendant's property "may be entered only afternotice to the defendant and hearing and upon a finding by the court thatit is more likely than not that the plaintiff will recover judgment,including interest and costs, in an amount equal to or greater than theaggregate sum of the attachment. . . ." Maine Rule 4A(c), quoted in So.Me. Props. Co. v. Johnson, 724 A.2d 1255, 1257 (Me. 1999).
Plaintiff argues that he is entitled to a prejudgment attachmentbecause it is more likely than not that he will be successful in thiscase. As mentioned above, however, Defendant has raised affirmativedefenses that it is exempted from both the FLSA and Maine's minimum wagestatutes. When considering motions for dismissal and motions forattachment, courts employ different standards of review. A motion todismiss is dispositive, and therefore carries with it a fairly highburden of persuasion that a moving party must meet in light of thecourt's duty to accept all of a plaintiff's factual averments. On theother hand, to obtain an attachment, a plaintiff merely needs todemonstrate that he probably will win his lawsuit. Thus, in contrast tothe Court's treatment of the record when analyzing Defendant's Motion toDismiss, the Court will consider some of the factual allegations thathave been presented to the Court in its determination of whetherattachment is warranted.
A. Additional Facts
From 1997 to 2000, Gerard worked for Northern Transportation as a truckdriver. During his employment, Gerard spent most of his work hourstransporting eggs across state borders. Apparently, about one-third ofthe time Gerard carried goods solely within the State of Maine. It isunclear when Gerard carried eggs across state lines and when hetransported goods only within Maine.
B. Fair Labor Standards Act
Regarding which agencies regulate employment practices for differentcategories of workers, Congress has established a boundary line dividingthe territories of authority of the Department of Labor versus theDepartment of Transportation. Pertinent to this case, the FLSA, which isadministered by the Department of Labor, establishes general minimum wagerequirements for the nation's workers, but specifies that such rules donot apply to employees whose terms of employment are subject toregulation by the Motor Carrier Act ("MCA"), 49 U.S.C. § 13101 etseq. See 29 U.S.C. § 213(b)(1). Administered by the Department ofTransportation, the MCA regulates the employment of motor carriers,e.g. truck drivers, who transport goods across state lines. See id.§§ 13102(12), 13102(13), 13501(1). Neither the MCA nor the policy ofthe Department of Transportation requires employers to pay motor carriersovertime compensation.
This arrangement has created a dichotomy: employees regulated by theFLSA are entitled to overtime pay, but motor carriers who transport goodsacross state lines are not entitled to overtime compensation. Thisapparently bright-line rule, however, loses its luster when courts arepresented with the dilemma of an employee whose work hours are dividedbetween both interstate transport of goods and solely in-state work.See, e.g., Morris v. McComb, 332 U.S. 422 (1947); Brennan v. SchwermanTrucking Co., 540 F.2d 1200 (4th Cir. 1976).
In Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210-11 (1st Cir.1972), the First Circuit followed a 1968 Department of Labor regulationestablishing that the MCA exemption should be applied week-by-week. Seeid. (citing 29 C.F.R. § 782.2). The plaintiff in Crooker worked atan automobile dealership in New Hampshire where his primary duties wereto clean and polish cars. On occasion, his employer would send him toanother state to pick up parts or cars and to transport them back to NewHampshire. The plaintiff argued that he was entitled to overtimecompensation for every week that he worked for the defendant, and thetrial court agreed. Remanding, the First Circuit ruled that the MCAexemption applied to those weeks during which the plaintiff transportedgoods across state lines, but not for weeks during which the plaintiffworked solely within New Hampshire. See id. Thus, for weeks when theplaintiff traveled across state lines, he was not entitled to an increasedovertime rate, but he was entitled to overtime compensation for the weeksthat he remained in state. See id. The court based this decision onlanguage in the Labor regulation, 29 C.F.R. § 782.2, which remainseffective since its adoption in 1968, as amended in 1971. See id.
Defendant argues that the Court should ignore this thirty year-old casebecause the Labor regulation has been trumped by a twenty year-oldinterpretation that was promulgated by the Department of Transportation.For determining whether the MCA exemption applies to an employee, theDepartment of Transportation's "Notice of Interpretation" states that theappropriate query is whether an employee has transported goods ininterstate commerce during a period of four months, instead of one week.See 46 Fed. Reg. 37902 (1981).1 According to this interpretativerule, see 5 U.S.C. § 553 (b)(A), if a worker carries goods acrossstate lines, the MCA exemption applies to that worker for a period offour months. Moreover, Defendant argues that certain statements made byofficials within the Department of Labor reveal that the Department ofLabor has acquiesced to the Department of Transportation's four-monthinterpretation. (See Docket #8, Attachs. 4, 5).)
In rebuttal, Plaintiff argues that the Court should not defer to thefour-month interpretation because federal agencies' interpretative rulesdo not constitute binding law. See, e.g., Chrysler Corp. v. Brown,441 U.S. 281, 301-03 (1979). Generally, a court should defer to anagency's reasonable interpretation of a statute or regulation. See,e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 843-44 (1984). When such an interpretation, however,conflicts with binding law, such as a regulation adopted after thenotice-and-comment process established by the Administrative ProcedureAct, 5 U.S.C. § 553, the Court need not give credence to the contraryinterpretation. See, e.g., Am. Mining Congress v. Mine Safety & HealthAdmin., 995 F.2d 1106, 1109-1110 (D.C. Cir. 1993). In short, aninterpretative rule may interpret an ambiguity or lacuna in the law, butit cannot alter or amend existing law. See, e.g., Warder v. Shalala,149 F.3d 73, 80 (1st Cir. 1998).
In any event, both parties overlook another portion of the disputedLabor regulation, not addressed by Crooker, which states that if anemployer regularly or from time to time calls on a driver to carry goodsover state lines, then the MCA exemption applies to "all workweeks whenhe is employed at such job." 29 C.F.R. § 782.2(b)(3). In Crooker,the plaintiff worked primarily as a car washer and polisher, who onlysometimes acted as a driver of goods. In the present case, it isundisputed that Plaintiff's primary job was as a truck driver. Plaintiffavers that during each year from 1997 to 2000, he spent a number of weekstransporting goods solely within Maine. To this, Defendant avers thatalthough Plaintiff may not have driven out of state every week,"Plaintiff's assignments were random and depended solely on where we haddeliveries and when customers required those deliveries. On any givenday Plaintiff could have been assigned to any out of state routedepending on the needs and requirements of customers." (Declaration ofBruce Ames ¶ 15 (Docket #8, Attach. 1).)
Plaintiff has not responded to this allegation. If such an averment istrue, that Defendant regularly called on Plaintiff to transport goodsacross state borders, then, according to the regulation upon whichPlaintiff relies, the MCA exemption applies and Plaintiff would not beentitled to overtime compensation pursuant to the FLSA. The burden is onthe Plaintiff to show that an attachment is warranted. Defendant,however, has presented a sound affirmative defense supported by anaffidavit. Because Plaintiff has not disputed this affidavit, he hasfailed to demonstrate that it is more likely than not that he willprevail on the merits of the case.
In the alternative, Plaintiff argues that his Maine state law claim ismore likely than not to be successful. The success of his state lawclaim, however, is contingent upon the success of his federal claim. TheCourt is hearing this case pursuant to federal question subject matterjurisdiction rather than diversity jurisdiction. If the federal claimfails, the Court most likely would dismiss the state law claim for lackof jurisdiction. See, e.g., Mercado-Garcia v. Ponce Fed. Bank,979 F.2d 890, 896 (1st Cir. 1992). Therefore, because Plaintiff hasfailed to show that the federal FLSA claim is more likely than not tosucceed, he consequently has failed to demonstrate that his Maine lawclaim is more likely than not to succeed. Based on the foregoing, theCourt finds that an attachment would be inappropriate.
For the reasons discussed above, the Court DENIES Defendant's Motion toDismiss (Docket #8). In addition, the Court DENIES Plaintiff's Motionfor Attachment and Trustee Process (Docket #2). Thus, the Court findsthat Plaintiff's Motion to Strike a portion of Defendant's Reply Brief(Docket #16) and Plaintiff's Motion for Leave to File a Sur-ReplyMemorandum (Docket #16) are MOOT.
1. Apparently, this interpretative statement has not been included inthe Code of Federal Regulations.