United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
from a dispute over overtime pay between Plaintiffs, Joseph
Kidd (Cause No. 3:16-cv-210-MGG) (“the '210
case”) and Ray Risner (3:16-cv-211-MGG) (“the
'211 case”), and their former employer, Wallace
Pork Systems, Ltd. (“Wallace Pork”). Wallace Pork
operates both a hog farm in Kokomo, Indiana, and a feed mill
in Winamac, Indiana. Plaintiffs were employed at the Feed
Mill between 2013 and 2016, during which time they often
worked more than forty hours per week and were never paid
overtime. On February 29, 2016, Plaintiffs both filed
complaints in Pulaski County Superior Court alleging that
Wallace Pork's failure to pay them overtime constituted
violations of Indiana's minimum wage and wage payment
statutes as well as the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et
seq. The cases were removed to this Court on April 5,
2016, based upon original jurisdiction arising from their
claims under the federal FLSA.
discovery closed, Plaintiffs filed the instant motions for
partial summary judgment on February 28, 2017, and Wallace
Pork filed its motions for summary judgment on March 1, 2017.
Now ripe, 
the parties' cross motions for summary judgment hinge
upon diametrically opposed perspectives on whether
Plaintiffs' work at the Feed Mill constituted secondary
agriculture so as to exempt them from overtime pay under
Section 13(b)(12) of the FLSA.
undersigned heard oral argument on the motions on September
20, 2017. The undersigned retains jurisdiction over these
cases based on the parties' consent and 28 U.S.C. §
636(c). Having considered the parties' briefs and oral
argument, the undersigned issues the following Opinion and
Order denying Plaintiffs' motions for partial summary
judgment and denying in part and granting in part Wallace
Pork's motions for summary judgment.
following facts are primarily not in dispute. Where the facts
are in dispute, this Court has determined that the disputes
are either not material or has chosen to address such
disputes in the Court's substantive analysis of the
Pork, a limited partnership, was created in February 1994
with the primary purpose of raising hogs. [DE 19-3 at 1-2].
On average, Wallace Pork has raised approximately 25, 000
hogs per year at its Hog Farm and has contracted with third
parties to raise an additional 45, 000 hogs per year on land
not owned by Wallace Pork. [DE 19 at 2, ¶ 8]. From 2012
to present, Wallace Pork employed about 10-11 individuals at
the Hog Farm on average annually. [Id. at 3, ¶
2011, Wallace Pork opened the Feed Mill in 2011 for the
purpose of “grind[ing] grain products purchased from
ethanol manufacturers and various other suppliers and enhance
the ground pulp with vitamins and other growth products to
create animal feed.” [Id. at 2, ¶ 4;
see also DE 22-1 at 4, ¶¶ 13-14]. From the
Feed Mill's inception until the summer of 2016, Wallace
Pork used its own employees to produce animal feed at the Feed Mill
while simultaneously contracting with Bi-County Pork, Inc.
(“Bi-County”) to purchase feed produced by
Bi-County's own staff at its independent, neighboring
facilities using inputs provided solely by Wallace Pork.
[Id.]. Bi-County only produced feed for Wallace Pork
and Wallace Pork purchased all the feed Bi-County produced.
[Id.; DE 32 at 18, 53:23-54:6]. All of Wallace
Pork's feed-both that produced at the Feed Mill and that
produced by Bi-County-is either fed to animals owned or
raised by Wallace Pork or sold to third-parties. [DE 19 at
worked at the Feed Mill from October 10, 2013, until January
26, 2016. [Id. at 3, ¶ 15]. Risner worked at
the Feed Mill from August 27, 2013, until January 23, 2016.
[Id., ¶ 16].
Kidd nor Risner ever worked at Wallace Pork's Hog Farm
and neither had any work responsibilities at the Hog Farm.
[Id., ¶¶ 17, 19]. While employed at the
Feed Mill, Kidd worked the afternoon shift and Risner worked
the day shift. [Id., ¶¶ 18, 20]. The
duties of both Plaintiffs included making feed with a pay
loader, scheduling delivery trucks, working with bag and bulk
ingredients, and performing occasional repair work.
[Id.]. Kidd also performed some associated
supervisory work. [Id., ¶ 18]. Both
Plaintiffs' direct supervisor was DeWayne Doty,
Production Supervisor. [Id., ¶ 21]. Neither
Kidd nor Risner ever worked at Bi-County.
Plaintiffs began working for Wallace Pork at the Feed Mill,
at least one other Feed Mill employee complained about not
receiving overtime pay. [Id. at 4, ¶ 26]. The
complaint prompted an investigation by the United States
Department of Labor (“DOL”) into the
applicability of the FLSA's overtime exemption for
secondary agricultural labor at the Feed Mill.
[Id.]. The DOL's investigation covered the
period from March 5, 2011, until March 1, 2013. [DE 19-3 at
4]. After holding a final conference on June 16, 2013, with
Wallace Pork's owner, Steve Wallace, and the Feed
Mill's manager and Production Supervisor, DeWayne Doty,
the DOL representative issued a final report on June 20,
2013. [Id. at 6].
the final report, the DOL concluded that the Feed Mill's
operations warranted a secondary agriculture designation
exempting Feed Mill employees from overtime pay because the
primary use of the feed produced there was feeding the
Wallace Pork hogs. [Id.]. The DOL supported its
conclusion with statistics showing that 77, 000 tons of feed
were produced and 42, 900 tons were used on the Wallace Pork
farms with the remaining 34, 100 tons being sold to other
[Id. at 2]. In other words, the DOL found that
Wallace Pork used 55% of the feed it produced itself and sold
the remaining 45%. The DOL representative appears to have
been influenced by assurances from Wallace and Doty that the
Feed Mill “operation [was] created for the intent of
getting cheap feed for their own animals.”
[Id. at 6].
the DOL representative conveyed to Wallace and Doty
“that although the [Feed Mill] enterprise qualified for
secondary agriculture at this time and date, the success with
outside suppliers and clients may change that designation in
the future.” [Id.]. After delineating the
special factors found in 29 C.F.R §
must be considered in any analysis of secondary agricultural
activities, the DOL representative also “cautioned
Steve Wallace that having a business with ADV approximating
$26 million dollars will bring the attention of employees,
plus private and public investors.” [DE 19-3 at 6]. The
DOL representative then noted that the “practice
performed today as secondary agriculture may be classified
tomorrow as manufacturing.” [Id.].
discovery in these actions, Wallace Pork has reported that
the Feed Mill and Bi-County combined produced approximately
120, 000 tons of feed for Wallace Pork annually between 2012
and 2015 with about 90, 000 tons being sold annually to third
parties. [DE 19 at 2, ¶ 5; DE 22-1 at 4, ¶¶
13-14; DE 32 at 66]. At the high water mark, about 75% of
Wallace Pork's total feed output was sold to third
parties with 75-80% of that total feed output being produced
by Bi-County. [DE 22-1 at 4, ¶¶ 13-14]. Wallace
Pork also reports that “something less than half of
[the 120, 000 tons of total feed output] was produced by
Wallace Pork employees using Wallace Pork facilities.”
[DE 32 at 66]. The record includes no further detail
regarding how much feed the Feed Mill or Bi-County
individually produced. However, Wallace Pork has produced
evidence of its annual gross revenue, including revenue from
the sale of animal feed and hogs, between 2012 and 2015; its
annual gross revenue from the sale of animal feed during the
same years; and its annual gross revenue from sale of hogs
during that time period. [DE 19 at 2, ¶¶ 6, 9, 10].
and Risner both worked more than forty hours per week
sometimes, but Wallace Pork never paid them at an overtime
rate. Wallace Pork considers all of its employees, including
those at the Feed Mill, to be agriculturally exempt from
overtime under state and federal law. Based on the premise
that the Feed Mill operation is more akin to manufacturing
than agriculture, Plaintiffs filed their respective lawsuits
after they resigned from Wallace Pork seeking overtime pay
for their work at the Feed Mill.
their instant motions, Plaintiffs seek partial summary
judgment as to whether Wallace Pork's failure to pay them
overtime wages is a violation of the FLSA, 29 U.S.C. §
207(a). [DE 20 at 22]. Plaintiffs do not seek summary
judgment on whether Wallace Pork's alleged FLSA violation
was willful and how much the liquidated damages for the
alleged violation would be. [Id.]. Wallace Pork, on
the other hand, contends that its operations have not changed
since the DOL issued its report in June 2013. [DE 22 at 4].
Therefore, Wallace Pork seeks summary judgment on
Plaintiffs' FLSA claims arguing that the DOL's
conclusion should be given deference and that Kidd and Risner
were exempt from overtime pay as employees in secondary
agriculture while they worked at the Feed Mill.
concede that their state law claims are subsumed by their
FLSA claims as Wallace Pork argued in its motions for summary
judgment. [DE 25 at 4; see also DE 22 at 6]. Therefore, the
Court GRANTS Wallace Pork's motions for
summary judgment on ...