                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1796
                                  ___________

Craig Morgan,                          *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Curtis Francois; Dent Wizard           * [UNPUBLISHED]
International Corporation,             *
                                       *
            Appellees.                 *
                                  ___________

                            Submitted: October 14, 2005
                               Filed: March 2, 2006
                                ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Craig Morgan sued his employers claiming overtime violations under the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The district court held the
employers were exempt from the FLSA's overtime provisions as "motor private
carriers." 49 U.S.C. § 31502(b)(2). We reverse and remand for further proceedings.

       In April 1998, Craig Morgan began working as a commissioned paintless dent
repair (PDR) technician for Gandalf, LTD, an Ohio limited liability company. Curtis
Francois, a resident of St. Louis, Missouri, allegedly had an ownership interest in
Gandalf, as did Paul Thomas, an Ohio resident. In June 2001, Gandalf sold some or
all of its assets to Dent Wizard International Corporation. After the transfer, Morgan
continued to work for Dent Wizard, traveling to customers' locations in a company-
owned truck to repair dents in the exteriors of automobiles using various PDR tools
and equipment. Morgan lived in Carriere, Mississippi, but frequently worked about
thirty miles away at the Mannheim Auto Auction of Greater New Orleans in Slidell,
Louisiana, as well as at several other locations in and around New Orleans, Louisiana.

        In April 2003, Morgan sued Francois, Thomas, Gandalf, and Dent Wizard in
federal district court in Ohio alleging all four were employers required to comply with
the FLSA's overtime laws and regulations. Morgan further alleged from April 1998
through the date of suit he regularly worked more than forty hours a week, and the
defendants failed to maintain accurate records of his actual hours of work or pay him
overtime. The Ohio district court severed Morgan's claims against Francois and Dent
Wizard and transferred them to Missouri, retaining jurisdiction over the claims against
Thomas and Gandalf. After initially finding a portion of Morgan's claims time-barred
by the applicable statute of limitations, see 29 U.S.C. § 255(a) (setting forth a three-
year limitations period for willful FLSA violations and a two-year limitations period
for all other violations), the Ohio district court granted Gandalf and Thomas summary
judgment on Morgan's remaining claims concluding the employers were "motor
private carriers" under the Motor Carrier Act and therefore exempt from the FLSA's
overtime provisions. Shortly thereafter, the Missouri district court granted Francois
and Dent Wizard summary judgment on the same grounds. Morgan filed timely
appeals of both decisions.

      In this appeal, Morgan contends, inter alia, the district court erred when it
determined he transported his employers' property (i.e., the PDR tools) in interstate
commerce. More specifically, he contends the district court should have considered
his supplemental affidavit of September 3, 2004, in which he asserted none of the
PDR tools he transported to and from work sites were owned by his employers. The



                                          -2-
district court refused to consider the supplemental affidavit concluding it contradicted
Morgan's earlier affidavit and statements he made in a deposition.

      We review the district court's interpretation of the FLSA and the Motor Carrier
Act de novo. Braswell v. City of El Dorado, Ark., 187 F.3d 954, 957 (8th Cir. 1999).
"We review the district court's exclusion of evidence in a summary judgment motion
for abuse of discretion." Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001).

        The FLSA's overtime requirements do not apply to "any employee with respect
to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provision of section 31502 of Title 49."
29 U.S.C. § 213(b)(1). The Motor Carrier Act allows the Secretary of Transportation
to set the "qualifications and maximum hours of service of employees of . . . a motor
private carrier, when needed to promote safety of operation." 49 U.S.C.
§ 31502(b)(2). The Motor Carrier Act defines a "motor private carrier" as

      a person other than a motor carrier, transporting property by motor
      vehicle when--
      (A) the transportation is as provided in section 13501 of this title;
      (B) the person is the owner, lessee, or bailee of the property being
      transported; and
      (C) the property is being transported for sale, lease, rent, or bailment or
      to further a commercial enterprise.

49 U.S.C. § 13102(13). The transportation "provided in section 13501" is interstate
travel. See 49 U.S.C. § 13501(1)(A) ("The Secretary and the Board have jurisdiction
. . . over transportation by motor carrier . . . between a place in [] a State and a place
in another State."). There is no dispute Morgan engaged in interstate travel between
Mississippi and Louisiana as part of his job. See 29 C.F.R. § 782.7(b)(1) ("Highway
transportation by motor vehicle from one State to another, in the course of which the
vehicles cross the State line, clearly constitutes interstate commerce under both [the


                                           -3-
FLSA and the Motor Carrier Act]."). There is also no dispute Morgan transported
property, that is, the PDR tools, to further a commercial enterprise. See, e.g.,
Friedrich v. U.S. Computer Servs., 974 F.2d 409, 417 (3d Cir. 1992) (recognizing
tools, parts, and equipment transported by field engineers to perform service work on
computer hardware constituted "property" under the Motor Carrier Act); Turk v.
Buffets, Inc., 940 F. Supp. 1255, 1261 (N.D. Ill. 1996) ("The transportation of
defendant's repair equipment and spare parts across state lines to service its restaurants
meets the statutory definition.").

        Morgan disputes, however, that his employers are the owners of the PDR tools
he transported. Morgan averred in his supplemental affidavit "[s]ome of my PDR
tools were given to me by Defendants when I first began my employment with them.
. . . None of the tools that I transported to and from work sites in my truck, while I was
working for Defendants, was a tool owned by either Defendant." App. at 48
(emphasis added). In an earlier affidavit, Morgan stated he "repaired the dents and
'dings' in the metal exterior of automobiles[] using tools, equipment and supplies
provided to me by Defendants." Id. at 50 (emphasis added). The district court refused
to consider the supplemental affidavit concluding it contradicted his earlier affidavit
without explanation. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361,
1364-65 (8th Cir. 1983) (recognizing a party can not "create a genuine issue" of fact
to avoid summary judgment by filing an affidavit contradicting his earlier testimony,
unless the apparent contradiction is adequately explained).

      The Sixth Circuit recently addressed this very same issue in Morgan's appeal
from the adverse judgment in the Ohio district court. The Sixth Circuit stated:

      Morgan contends the district court abused its discretion in this matter
      because his corrected affidavit is not contradictory, but explanatory.
      Indeed, the corrected statement, that the PDR tools were given to Morgan
      by defendants, is not necessarily inconsistent with his original statement
      that the tools were provided to him by defendants – especially when the

                                           -4-
      two statements are read, as they must be for purposes of defendants'
      summary judgment motion, in the light most favorable to Morgan. Until
      the clarifying statement was filed, Morgan's original statement that the
      tools were provided to him by defendants begged the question whether
      ownership passed to Morgan at that time. . . . Considering this
      chronology, both the timing and contents of Morgan's proffered
      clarification, whether ultimately deemed truthful or not, are certainly
      understandable and facially legitimate. Read in the light most favorable
      to Morgan, the corrected statement genuinely appears to illuminate or
      clarify his original statement. It is not necessarily contradictory or even
      inconsistent and does not necessarily suggest prevarication. The district
      court's contrary conclusion demonstrates that it erroneously viewed both
      plaintiff's original affidavit and the corrected affidavit in the light most
      favorable to the defendants, rather than to the nonmovant. The district
      court's disallowance of the correction as contradictory thus represents a
      misapplication of the law governing summary judgment assessment of
      the record. This misapplication of the law represents an abuse of
      discretion.

Morgan v. Gandalf, Ltd., No. 05-3189, 2006 WL 238321, *7 (6th Cir. Jan. 31, 2006)
(unpublished decision) (internal citations omitted).

      We agree with this aspect of the Sixth Circuit's analysis, and therefore also
conclude the district court abused its discretion when it refused to consider the
supplemental affidavit on the ground it contradicted Morgan's earlier affidavit.

       The district court also refused to consider Morgan's supplemental affidavit on
the ground the affidavit contradicted a deposition Morgan gave seven days after
signing the supplemental affidavit. After comparing the deposition testimony with the
supplemental affidavit, we still conclude the district court abused its discretion in
refusing to consider Morgan's averment his employers were not the owners of the
PDR tools. Some of the statements in Morgan's deposition again merely address the
provision of the tools, and not the controlling issue whether ownership passed to
Morgan or remained with his employers at that time. Other statements in which

                                          -5-
Morgan purports to admit the PDR tools were "company property" rather than his own
are ambiguous. For example, we can infer from the record some PDR tools were
commonly referred to as "Dent Wizard" tools because that was their brand name, such
as referring to a camp stove as a Coleman® stove. Thus, Morgan's affirmative answer
when asked the question whether he was transporting "Dent Wizard tools and
equipment" does not necessarily constitute an admission Dent Wizard owned the
tools. This ambiguity in the record is compounded by the fact neither Dent Wizard
or Francois submitted any documentation (i.e., a depreciation schedule for tax
purposes) establishing their ownership of the tools in question, which, it seems, either
could have easily done if, in fact, the tools were not Morgan's.

      After reviewing the entire record in the light most favorable to Morgan, as we
must for summary judgment purposes, e.g., Revels v. Vincenz, 382 F.3d 870, 874 (8th
Cir. 2004), we conclude there is still a genuine fact issue regarding the actual
ownership of the tools in question. Since we are reversing on this issue, it is
unnecessary to address Morgan's remaining claims.

       We reverse the district court's grant of summary judgment and remand for
further proceedings.1
                      ______________________________




      1
       Pending before the court is an unopposed motion to strike certain portions of
appellees' brief, which we grant, and an opposed motion to sanction appellant's
counsel, which we deny.

                                          -6-
