This multi-distriсt litigation docket involving the classification of FedEx Ground pickup and delivery drivers is before the court on the motions for class certifications filed by plaintiffs in the actions categorized in this docket as “Wave 1,” Wave 2,” and “Wave 3.”
These plaintiffs challenge the practice of FedEx Ground Package System, Inc. labeling its Ground and Home Delivery division drivers as independent contractors. The plaintiffs assert that although FedEx Ground represents to its drivers that they are only partnering with FedEx Ground and will essentially own their own business, all FedEx Ground drivers sign the FedEx Ground Operating Agreement, which actually reserves to FedEx Ground the right to exercise pervasive control over the method, manner, and means of the drivers’ work, rendering improper the drivers’ classification as independent contractors rather than employees.
As examples of the actual control FedEx Ground asserts over its drivers, the plaintiffs point to FedEx Ground’s right to control the drivers’ appearance and behavior, their pay and rates charged to customers, the vehicle they use and its appearance, their route and the number of packages they deliver each day, their delivery methods and mode of customer service, their hours of work, and their opportunity to increase their earnings. The plaintiffs say litigation of this case as a class action is appropriate and desirable since common evidence can resolve all plaintiffs’ claims. The plaintiffs contend that FedEx Ground has a categorical policy of classifying its drivers as independent contractors. All class members share the same job title, have signed the same non-negotiable Operating Agreement, are paid under the same compensation formula, wear the same uniform, drive FedEx Ground-approved trucks bearing the FedEx Ground logo, work exclusively for FedEx Ground, and are all similarly integrated into FedEx Ground’s operations.
FedEx Ground generally responds that the proposed classes should not be certified because the plaintiffs’ claims turn on individualized issues, including whether contractors should be classified as employees under the states’ statutory tests, and whether any individual contractor can meet the high bar for rescission of his individual contract. FedEx Ground says the named plaintiffs themselves show how diverse this class would be because each contractor’s experience is different: some named plaintiffs reviewed the Operating Agreement before signing; some had others drive their routes; some bought their routes from contractors; and one even developed his own alternating day schedule.
For the reasons that follow, the court grants motions for class certifications in cases involving drivers from Tennessee (see page 437 of this opinion), Arkansas (page 442-43), Kentucky (page 445), Texas (page 448-49), Wisconsin (page 450-51), Alabama (page 452), New York (page 454), New Jersey (with a modification of the class definition (page 460)), Maryland (page 463), Minnesota (page 467), Pennsylvania (page 469-70), New Hampshire (page 471), South Carolina (page 473-74), Oregon (page 476-77), Indiana (page 480), West Virginia (page 484), Florida (page
A.
To maintain a class action, the named representatives and each class they seek to represent must meet the requirements under Federal Rule of Civil Procedure 23. First, the proposed class action must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. A district court has broad discretion in determining whether the plaintiffs have satisfied the prerequisites of Rule 23, Retired Chicago Police Ass’n v. City of Chicago,
Numerosity means the proposed class is “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). No magic number establishes the numerosity requirement, and some courts have found this element satisfied when the putative class consists of fewer than forty members. Lucas v. GC Sens. L.P.,
The commonality requirement requires only that there exist “questions of law or fact common to the class.” Keele v. Wexler,
“The question of typicality in Rule 23(a)(3) is closely related to the preceding question of commonality,” Rosario v. Livaditis,
Rule 23(a)(4) requires that the named plaintiff “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This means that (a) the chosen class representative cannot have antagonistic or conflicting claims with other members of the class, Rosario v. Livaditis,
In addition to these four prerequisites, an action must also be maintainable under at least one of the three provisions of Rule 23(b). The court must decide which form of class action, if any, is the most appropriate under Rule 23(b). Eisen v. Carlisle & Jacquelin,
A court may certify a class under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). When a request is made for both declaratory and monetary relief, the class is properly certified under Rule 23(b)(2) only if the request for declaratory relief predominates over the request for monetary relief. Lemon v. International Union of Operating Eng’rs, Local No. 139,
Rule 23(b)(3) allows class certification when questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Szabo v. Bridgeport Machines, Inc.,
“To determine whether damages predominate, a court should certify a class on a claim-by-claim basis, treating each claim individually and certifying the class with re
B.
On October 15, this court issued its order granting the Kansas and ERISA plaintiffs’ motion for class certification. Because of the similarities amongst states, in the conclusion of that order the court instructed all parties that had filed class certification briefs to file a five-page supplemental stating how their position on class certification differs from the positions addressed in that order. In this order, the court uses the Kansas opinion as its basis and will analyze whether each of the states addressed raise substantial enough differences to make class certification inappropriate.
Tennessee
The Tennessee plaintiffs allege violations of Tennessee’s Consumer Protection Act of 1977 and seek an accounting, rescission, and declaratory and injunctive relief. The Tennessee plaintiffs contend that through “misclassification” of its drivers, FedEx Ground has acted on grounds generally applicable to all of the proposed members of the Tennessee class of FedEx Ground pickup and delivery drivers and, therefore, this class is suitable for class certification under 23(b)(2). Additionally, the common “overarching issue” of whether FedEx Ground treated its drivers as employees predominates and makes certification of the Tennessee claims suitable under 23(b)(3). The Tennessee plaintiffs assert that these claims are legally and factually common and typical to the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 22, 1999 to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Tennessee.
In its supplemental briefing, FedEx Ground raises two issues, which it asserts make the Tennessee scenario different from the one presented in Kansas and weigh against class certification. The first is that, unlike Kansas where the named class representatives included current and former drivers, the Tennessee named plaintiffs all are former contractors. FedEx Ground argues that this presents two separate problems for adequacy of representation. First, as former contractors, the Tennessee plaintiffs can only argue that they were improperly classified as independent contractors in the past. A named plaintiff must have standing at the time of certification for the class to be properly certified. Second, former drivers have significantly different interests than do the current contractors they purport to represent. Current contractors have a long-term
The two cases FedEx Ground cites to support its standing argument deal with plaintiffs seeking injunctive relief for allegedly improper practices in the criminal justice system. O’Shea v. Littleton,
In the employment context, courts have held that former employees have standing to represent a class consisting of both current and past employees. As stated in Cross v. National Trust Life Ins. Co.,
“In making the determination of adequacy of representation the district court should consider the experience and ability of counsel for the plaintiffs and whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent.” Cross v. National Trust,
Many courts have noted the benefits of having former employees named as class representatives. “[W]ith respect to plaintiffs who were former employees of the company ‘being familiar with (the company’s) employment practices and being free from any possible coercive influence of (the company’s) management, (the plaintiffs) are better situated than either job applicants or present employees to present an intelligent and strongly adverse case against (the company’s) alleged discriminatory practices.’ ” Wetzel v. Liberty Mut. Ins. Co.,
FedEx Ground’s second objection to class certification is that while the right to control is an important factor, Tennessee courts look beyond written contracts to the parties’ actual conduct. In support of this proposition, FedEx Ground cites the Tennessee Court of Appeals in Hendrix v. City of Maryville, which stated: “When the contract is in writing and its terms are indefinite and ambiguous, or if the evidence shows that more than one inference can be drawn from the relationship, or if there is evidence of circumstances and relations outside of the written agreement, the written contract alone cannot be determinative but a question of fact arises which must be determined by the jury.”
FedEx Ground also contends that, unlike in Kansas where the right to terminate was dispositive, Tennessee courts consider it to be “just one factor to be considered” in the employee-independent contractor analysis. Wright v. Knox Vinyl & Aluminum Co., Inc.,
FedEx Ground’s reliance on Hendrix v. City of Maryville for the proposition that parol evidence must be introduced in light of ambiguous contract terms and existence of circumstances and relations outside the contract does not persuade the court. The Tennessee plaintiffs aren’t arguing that the Operating Agreement is ambiguous. The Tennessee plaintiffs assert that although the agreement purports to establish an independent contractor relationship with its drivers the amount of control that FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. In support of their argument, the Tennessee plaintiffs continually point to contract terms that seem to dictate much of the driver’s work day. It doesn’t appear that the plaintiffs will need to introduce parol evidence for support.
Likewise, while Tennessee courts look to the factors listed in Bargery to determine whether an employee or independent contractor relationship exists, even the court in Bargery stressed that the employer’s “right to control” its workers is the primary factor. Bargery v. Obion Grain,
Montana
In their amended complaint, the Montana plaintiffs assert claims for violations of Montana’s independent contractor and wage laws, rescission and quantum meruit, an accounting, and declaratory relief. The Montana plaintiffs challenge the validity of FedEx Ground’s practice of labeling its ground and home delivery division drivers as “independent contractors,” thereby shifting its ordinary operating expenses to its workforce while still retaining the control traditionally enjoyed by an employer. FedEx Ground’s standardized policies and procedures and the pickup and delivery contractor Operating Agreement, they say, make these claims suitable for class certification. The Montana plaintiffs move the court to certify a class under Rule 23(b)(2) for their claims for an accounting and for declaratory judgment. The Montana plaintiffs further move for class certification of their claims for violation of Montana’s independent contractor law, violation of Montana’s wage law, rescission, and declaratory judgment under Rule 23(b)(3). They assert that these claims are legally and factually common and typical to the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 26, 1997 to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Montana.
FedEx Ground’s supplemental brief raises four issues that FedEx Ground asserts make the Montana scenario different from the one presented in Kansas and weigh against class certification. One of these contentions is that the Montana plaintiffs who are former employees may only argue that in the past they were improperly classified as independent contractors. These former drivers lack standing, FedEx Ground says, because they have no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. The court analyzed this objection as to the Tennessee plaintiffs, and for those same reasons the court finds that former Montana employees can adequately represent the interests of current employees in this action.
FedEx Ground’s next objection is that based on the Montana plaintiffs’ own theory of the case, it will be necessary to go beyond the Operating Agreement’s terms to resolve independent contractor status. FedEx Ground portrays the Montana plaintiffs as asserting that the Operating Agreement is inconsistent since, on the one hand, it indicates that the contractor has sole discretion in determining the manner and means of the work, and, on the other hand, it reserves certain rights of control to FedEx Ground. As already stated in the Tennessee analysis, the court doesn’t construe the Montana plaintiffs’ argument as being that the Operating Agreement is ambiguous, but rather that, although the agreement purports to establish an independent contractor relationship between FedEx Ground and its drivers, the amount of control FedEx Ground withholds throughout the contract makes the relаtionship one of an employer-employee. Therefore, the court doesn’t believe extrinsic evidence will be necessary to construe the contract.
FedEx Ground next argues that Montana courts look beyond the four corners of the contract and analyze the parties’ conduct. FedEx Ground is correct. Montana law places a burden of proof on the party claiming an independent contractor relationship to prove both prongs of what the Montana courts call the “AB test”: that the hired party “(a) has been and will continue to be free from control or direction over the performance of the services, both under a contract and in fact; and (b) is engaged in an independently established trade, occupation,
If the Montana plaintiffs are correct about the import of the control reserved to FedEx Ground under the Operating Agreement, it will be unnecessary to look beyond the Operating Agreement. But if the Montana plaintiffs are incorrect, FedEx Ground is entitled to an opportunity to meet the rest of its burden under the “AB test” by proving that it didn’t control the details of the drivers’ work sufficiently.
Montana law places a burden of proof on FedEx Ground, and FedEx cannot meet that burden of proof without presenting evidence of the control it exercised over (or conversely, the freedom it allowed) its drivers. The parties’ submissions make clear that neither unanimity of perception nor uniformity are hallmarks of individual drivers’ experiences. Something very close to a driver-by-driver analysis will be needed.
Although the effect of the Operating Agreement is a question common to the entire proposed class, that question does not predominate over the remaining issues under Montana law. The court denies the Montana plaintiffs’ motion for class certification.
Mississippi
The Mississippi plaintiffs’ amended complaint asserts claims for fraud, rescission, constructive trust, injunctive relief, and declaratory judgment. They maintain the overarching issue in this litigation is the classification of certain package delivery drivers as independent contractors rather than employees. The Mississippi plaintiffs argue that through this classification, FedEx Ground has acted on grounds generally applicable to all of the proposed members of the Mississippi class of drivers. The Mississippi plaintiffs move to certify a class under Federal Rule of Civil Procedure 23(b)(3) for their claims for rescission of the Operating Agreement, constructive trust and other equitable relief, injunctive relief, and declaratory relief. The Mississippi plaintiffs also move to certify a class under Rule 23(b)(2) for their claims for injunctive and declaratory relief. They assert that these claims are legally and factually common and typical to the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 26, 2002, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Mississippi.
In its supplemental briefing, FedEx Ground raises five issues that FedEx Ground says make the Mississippi scenario different from that presented in Kansas and weigh against class certification. First, unlike Kansas, Mississippi courts start with the premise that it is the parties’ constitutionally protected right to contract as they please. Therefore, courts generally allow contracting parties to decide for themselves that they are creating an independent contractor relationship even if the facts traditionally would have been viewed as creating that of an employer/employee relationship. In support of this contention, FedEx Ground points to the Mississippi Supreme Court decision Richardson v. APAC-Mississippi, Inc.,
In Richardson, the plaintiff was leaving a parking lot when a truck driven by McCandless struck her vehicle. The plaintiff filed suit against APAC for negligence based on the theory of respondeat superior. APAC countered that McCandless was not its employee, but rather was an independent con
While no case cited by FedEx Ground has been decided based on the parties’ right to contract when third party rights are unaffected, the court’s language has been referenced in several other decisions and still appears to be a factor that courts consider. See McKee v. Brimmer,
Deciding the parties’ intent when they signed the Operating Agreement will require individualized analysis that is not consistent with class certification. As FedEx Ground points out, the Mississippi plaintiffs might refute an intention to enter into an independent contractor relationship by asserting that the contract was so long and confusing they didn’t understand what they were agreeing to. Individual plaintiffs would have to testify as to their understanding and intent when they signed the Operating Agreement. This weighs heavily against certification of a class. Since the Mississippi plaintiffs’ claims all hinge on whether the relationship between FedEx Ground and its drivers is an employer/employee relationship or an independent contractor relationship, the court must deny the Mississippi plaintiffs’ motion for class certification.
Arkansas
The single named Arkansas plaintiff, David Harris, alleges violations of Arkansas’s overtime statute and asserts claims for fraud, rescission, unjust enrichment, and declaratory judgment. Mr. Harris claims that the common issue of whether FedEx Ground improperly labels its drivers as independent contractors is at the heart of each of the Arkansas claims. Mr. Harris asks this court to certify a class under Federal Rule of Civil Procedure 23(b)(3) for his declaratory judgment claim, his Arkansas Wage and Hour
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full time basis (meaning exclusive of time off for commonly excused employment absences) since Jan. 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Arkansas.
In its supplemental briefing, FedEx Ground says four issues make the Arkansas case different from the one presented in Kansas and weigh against class certification. FedEx Ground argues that, unlike in Kansas, the sole named Arkansas plaintiff is a former contractor who can only argue that he was improperly classified as an independent contractor in the past. As a former contractor, FedEx Ground says, Mr. Harris lacks standing because he has no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. Additionally, as a former contractor, Mr. Harris only has an interest in financial gain and not in declaratory and injunctive relief. FedEx Ground argues that this conflicts with the interests of the putative class members who are current contractors. The court addressed FedEx Ground’s nearly identical objection to the Tennessee class certification and, for the reasons stated there, doesn’t find that it weighs against class certification.
FedEx Ground next argues that in Arkansas the “control test” is not dispositive. Instead, FedEx Ground asserts, the Arkansas Supreme Court has “consistently held that no rule of unvarying application can be formulated for ascertaining whether a workman is a servant or an independent contractor, and each case must be determined upon its own particular facts.” Massey v. Poteau Trucking Co.,
(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether the work is a part of the employer’s regular business; (i) whether the parties believe they are creating the relation of master and servant; and (j) whether the principal is in business.
Blankenship v. Overholt,
FedEx Ground believes the court will need to go outside of the contract to utilize the Restatement factors. For example, whether the driver has a “distinct business” may turn on whether the contractor is incorporated, which varies across drivers. The Operating Agreement doesn’t indicate how long the driver has contracted with FedEx Ground, which will vary from several months to many years. FedEx Ground also contends that the court won’t be able to determine from the Operating Agreement whether the driver supplied the instrumentalities. Lastly, FedEx Ground argues that weighing the parties’ intent will vary from driver to driver.
When deciding whether an independent contractor or employer/employee relationship exists under Arkansas law, “[t]he right to control, not the actual control, is the principal factor in determining the worker’s status.” Draper v. ConAgra Foods, Inc., 92 Ark. App. 220,
As FedEx Ground indicated, the Draper court used the Restatement factors to guide its analysis and noted that “there is no fixed formula for determining whether an entity is an employee or an independent contractor, the determination must be made based on the particular facts of each case.”
Lastly, although intent is one of the Restatement factors it was rarely used in the cases the parties cite. The Draper court factored the parties’ intent into its analysis, but also found that the parties’ intent “is not determinative ... except insofar as such belief indicates an assumption of control by the one and submission to control by the other.”
FedEx Ground’s third objection is that in determining the extent of control, Arkansas courts look at the actual control exercised over the worker to discern the level of control to which the worker was subjected. In support of this contention, FedEx Ground cites to Draper v. ConAgra Foods,
The Draper court explicitly stated that the right to control, not the actual control, is the principal factor in the independent contractor/employee analysis: “The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of performance, then the relation of master and servant necessarily follows.”
Lastly, FedEx Ground alleges that by contending that there are “many terms in the contract that are open to many interpretations,” plaintiff has placed contract interpretation squarely at issue in this case.
Kentucky
Kentucky plaintiffs John Coleman, William Cress, Barry Hindman, and George Sanders seek class certification of their claims for violations of Kentucky’s wage deduction statute, rescission and unjust enrichment, and declaratory and injunctive relief. The Kentucky plaintiffs argue that these claims all depend on the predominant common question of whether FedEx Ground has improperly labeled these drivers as independent contractors, which will require the court to assess common evidence of FedEx Ground’s programmatic retention and exercise of the right to direct and control its drivers. The Kentucky plaintiffs move for certification of a damages and unjust enrichment class under Federal Rule of Civil Procedure 23(b)(3) for their claims for violation of Kentucky Revised Statutes §§ 337.060 and 337.070, rescission, and declaratory relief. They also move the court to certify a class under Rule 23(b)(2) for their claims for declaratory relief and injunctive relief. The Kentucky plaintiffs contend that these claims are legally and factually common and typical among the following similarly situated class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 13, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal located in Kentucky or provide(d) pick-up and delivery services within Kentucky.
In its supplemental briefing, FedEx Ground raises six issues, which it asserts make the Kentucky case different from the one presented in Kansas and weigh against class certification. One of those issues is that, in contrast to the Kansas class representatives who include current drivers, the Kentucky plaintiffs are all former drivers who can only argue that they were improperly classified as independent contractors in the past. FedEx Ground argues that as former drivers, these plaintiffs lack standing and their claims are not typical and conflict with the putative class, making them inadequate representatives. For the reasons stated in the Tennessee analysis, the court disagrees with FedEx Ground’s position on the Kentucky plaintiffs’ standing.
FedEx Ground also asserts that the named plaintiffs are inadequate representatives because they, unlike the vast majority of the putative class, drive out of an Indiana terminal. FedEx Ground argues that while Kentucky law will govern most of the putative class, Indiana law applies to the named Kentucky plaintiffs, who executed their Operating Agreements in Indiana and allegedly were controlled by terminal management in Indiana.
The Kentucky plaintiffs claim that all four named plaintiffs drove out of FedEx Ground’s Louisville terminal, which relocated across the Ohio River to Jeffersonville, Indiana in 2000, but continues to be referred to as the “Louisville terminal.” The Louisville terminal is subdivided between drivers who drive routes in Kentucky and drivers who drive routes in Indiana; all trucks and packages destined for Kentucky are on one side of the terminal and the Indiana trucks and packages are on the other side. The four named plaintiffs all were Kentucky residents while they worked for FedEx Ground, worked on the Kentucky side of the Louisville terminal, and drove routes located exclusively in Kentucky.
This ease came from, and would return to, a federal court sitting in Kentucky, so Kentucky choice of laws rules apply. See Tanner v. Jupiter Realty Corp.,
In a case analogous to this ease, Davis v. Siemens Med. Solutions USA, Inc.,
In today’s case, the Kentucky plaintiffs have significant contacts with both Kentucky and Indiana. The named Kentucky plaintiffs were all Kentucky residents who drove routes and delivered packages exclusively in Kentucky. The Kentucky plaintiffs’ terminal is located in Indiana, so they loaded and unloaded packages, interacted with their supervisors, and some even signed their Operating Agreement in Indiana. These facts give both Kentucky and Indiana significant interest in the employment conditions of the plaintiffs. Based on the cases just discussed, however, there are sufficient contacts for Kentucky courts to apply Kentucky law to the named plaintiffs.
Further, while FedEx Ground raised this choice of law objection by way of questioning the adequacy of the named plaintiffs, FedEx Ground hasn’t stated how the substantive law of Indiana would differ from the law of Kentucky. As the court of appeals explained in Massachusetts Bay Ins. Co. v. Vic Koenig Leasing, Inc.,
The Kentucky Administrative Regulations sets out a multi-factor test to determine whether an employment relationship exists. 803 Ky. Admin. Regs. 1:005, § 4. FedEx Ground argues that many of the factors in this test are highly individualized. For example, the regulation lists four “significant” factors relevant to an individuals status, all of which, FedEx Ground contends, will require individualized proof. These factors include investment in facilities and equipment, opportunity for profit and loss, the extent to which the services in question are an integral part of the employer’s business, and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise. FedEx Ground further argues that many of the remaining factors also turn on individualized evidence, such as length of contract, whether the possible employer may discharge employees of the contractor, and the similarity of work done by contractor to work done by admitted employees.
FedEx Ground omits the first paragraph of the section, which states: “The principal test for determining whether an employment relation exists is whether the possible employer controls or has the right to control the work to be done by the possible employee to
FedEx Ground posited a similar objection to the plaintiffs’ claims that would be subject to Kentucky’s common law test. FedEx Ground argues that Kentucky law presents a different scenario from the one presented in Kansas since the Kentucky Supreme Court expressly held that the control factor is of no greater importance than the others. Kentucky Unemployment Ins. Comm’n v. Landmark Cmty. Newspapers of Ky., Inc.,
Lastly, FedEx Ground argues that the “right to control” factor itself often is determined by reference to the parties’ actual conduct. For support, FedEx Ground cites Sturgill v. Barnes,
The court agrees that the Landmark decision, which abrogated Sturgill, changed the right to control from “the chief criterion” to a factor of no greater importance than the others,
Nor does the court agree with FedEx Ground that the Landmark decision requires analysis beyond the contract’s terms. In Landmark, the Kentucky Supreme Court looked mainly to the contract between Landmark and its carriers to decide whether the newspaper carriers Landmark hired were independent contractors or employees.
FedEx Ground next raises the objection that plaintiffs’ claims under Kentucky’s wage deduction statute will require proof that each plaintiff did not agree to each deduction. The wage deduction statute makes it unlawful for an employer to withhold from any employee any part of the wage upon which the parties agreed. Ky.Rev.Stat. § 337.060. Statutory exceptions to this provision include when the employer is authorized to withhold wages “by local, state, or federal law, or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital and medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute” or “for union dues when such deductions are authorized by joint wage agreements or collective bargaining contracts.” Ky.Rev.Stat. § 337.060(1). This claim will require FedEx Ground to either point to a statute allowing the deduction in question or produce a written agreement between itself and the driver allowing the deduction that falls into one of the statute’s stated exceptions. The court doesn’t read this statute to require each driver to testify
Lastly, FedEx Ground again argues that since the plaintiffs take the position that there are “many terms in the contract that are open to many interpretations,” the court will have to consider parol or extrinsic evidence. As already explained with respect to certification motions from other states, the court doesn’t read the plaintiffs’ position as FedEx Ground does. For all of these reasons, and the reasons stated in the Kansas ruling, the court will grant the Kentucky plaintiffs’ motion for class certification.
Texas
Texas plaintiffs John Humphreys, David Meredith, Jeffrey Quebe, Tim Mershon, and Charles Campbell seek class certification of their claims for rescission and declaratory relief. They argue that common class-wide evidence will establish that FedEx Ground treated its package and delivery drivers as employees, systematically retaining and exercising far-reaching rights to direct and control the drivers in the performance of their work. Texas plaintiffs move for certification of a class under Federal Rule of Civil Procedure 23(b)(3) for their rescission and declaratory relief claim and under Rule 23(b)(2) for their declaratory relief claim. The Texas plaintiffs contend that these claims are legally and factually common and typical among the following similarly situated class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since March 6, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Texas.
In its supplemental briefing, FedEx Ground raises three issues it asserts make the Texas case different from the one presented in Kansas and weigh against class certification. FedEx Ground contends that based on the Texas plaintiffs’ own theory of the ease, it will be necessary for the court to go beyond the terms of the Operating Agreement. For support, FedEx Ground quotes the Texas plaintiffs as stating that there are “many terms in the contract that are open to many interpretations” and that the Operating Agreement is contradictory. FedEx Ground argues that interpretation of these ambiguous or conflicting terms of the contract would have to be resolved through the use of individualized evidence regarding the parties’ course of dealings. As the court has stated already in this opinion with respect to the Arkansas and Tennessee motions, it doesn’t interpret the plaintiffs’ argument to be that the Operating Agreement is ambiguous. Instead, the Texas plaintiffs are asserting that although the Operating Agreement purports to establish an independent contractor relationship with its drivers the amount of control that FedEx Ground withholds throughout the contract makes the relationship one of an employer-employee. Thеrefore, it doesn’t appear the Texas plaintiffs will need to introduce parol evidence for support.
FedEx Ground’s next objection to class certification is that unlike the Kansas named plaintiffs, the Texas named plaintiffs are all former contractors who can only argue that in the past, they were improperly classified as independent contractors. As former contractors, FedEx Ground says, the Texas plaintiffs all lack standing because they have no stake in the future conduct at which claims for injunctive and declaratory relief are targeted. FedEx Ground also argues that former contractors only have an interest in the financial gain and not in declaratory and injunctive relief. This conflicts with the interest of the putative class members who are current contractors. For the reasons stated in the Tennessee analysis, the court disagrees with FedEx Ground’s position.
FedEx Ground’s last objection is that in contrast to Kansas where the most important factor in determining independent contractor status was whether there existed a “right to control,” Texas courts say that “the written contract is important, but the test remains
FedEx Ground asserts that it is particularly true that in this case the court will need to look outside the Operating Agreement, since the contract on its face doesn’t resolve many of the factors to be addressed. For example, whether a driver has an “independent” business will turn on the nature of the business and whether the driver is incorporated, which varies across drivers. The court will also need to weigh whether the drivers supplied the tools, which might involve evidence of whether some drivers leased their trucks “at a reduced price” from an entity the Texas plaintiffs say is related to FedEx Ground. The Operating Agreement does not indicate how long the driver has contracted with FedEx Ground.
The test in Texas for determining whether one is acting as an independent contractor is to “measure the amount of control that the employer exerts or has a right to exert over the details of the work.” Durbin v. Culberson County,
When an employment contract exists and provides for an independent contractor relationship, it generally is controlling. See Durbin v. Culberson County,
Class certification would be inappropriate if the Texas plaintiffs’ position was that though the Operating Agreement purported to establish an independent contractor relationship, the actual relationship between FedEx Ground and its drivers is one of employer/employee. To prove that the agreement was a sham or that the actual relationship was inconsistent with the agreement, the court would be required to conduct individual analysis of the actual relationship between the parties. But the court understands the Texas plaintiffs’ argument to be that though the Operating Agreement labels the drivers as independent contractors, the Operating Agreement itself reserves to FedEx Ground the right to control, making the drivers employees of FedEx Ground. This determination will only require analysis of the Operating
Wisconsin
Like the Kansas plaintiffs, the Wisconsin plaintiffs assert claims under their state’s wage payment statute, as well as claims for rescission and declaratory relief. The Wisconsin plaintiffs contend FedEx Ground uniformly misclassified all Wisconsin pickup and delivery drivers as independent contractors, and common factual and legal questions regarding their employment misclassification predominate as required for class certification under Rule 23(b)(3). Plaintiffs seek to certify the following class:
All persons who: 1) entered or will enter into an FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since August 18, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Wisconsin.
FedEx Ground argues that the court must look outside the parties’ standard Operating Agreement to determine whether FedEx Ground is liable as an employer under Wisconsin’s wage withholding statute. Wis. Stat. § 103.455. FedEx Ground maintains that class certification is inappropriate because the court must engage in an individualized examination of each plaintiffs employment relationship.
To succeed on their claim under the Wisconsin wage withholding statute, the Wisconsin plaintiffs must show that they are (or were) employees as defined by Wisconsin law. The Wisconsin statute defines an “employee” as “any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go to work or be at any time in any place of employment.” Wis. Stat. § 103.001(5). Although Wisconsin courts have yet to specifically address how to determine employee status for purposes of § 103.455, they have noted that the “dominant test in determining whether a person is an independent contractor or employee is who has the right to control the details of the work.” Madison Newspapers, Inc. v. Wisconsin Dep’t of Revenue,
FedEx Ground argues that instead of focusing solely on its “right to control” the Wisconsin drivers, the court will utilize the “economic realities” test found in decisions interpreting Title VII. While the economic realities test considers a number of factors, the most important factor is the right to control the means and manner of performance. Moore v. Labor & Indus. Rev. Comm’n,
The court reads Wisconsin law differently. The court need only determine the existence of control, rather than examining FedEx Ground’s actual exercise of control over each individual driver. See Stafford Trucking, Inc. v. Wisconsin Dep’t of Indus., Labor & Human Relations,
FedEx Ground also argues that even if the court decides to focus on the Operating Agreement to determine employee status, individualized extrinsic evidence is needed to interpret the provisions related to control. FedEx Ground relies heavily on two cases in which class treatment was inappropriate despite the existence of a standardized contract, neither of which applied Wisconsin law. See Bowers v. Jefferson Pilot Fin. Ins. Co.,
Similarly, the court in Adams v. Kansas City Life Ins. rejected class certification of the plaintiffs’ contract claims because those claims involved ambiguous contract terms that could only be interpreted by considering varying types of extrinsic evidence.
Alabama
Named Alabama plaintiff Tina Floyd seeks certification of a statewide class under Rules 23(b)(2) and 23(b)(3) for claims of rescission, unjust enrichment, and declaratory and injunctive relief under Alabama law. The Alabama plaintiffs assert these claims are legally and factually common and typical to the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 11, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Alabama.
FedEx Ground responds with two principal arguments against class certification. First, FedEx Ground disputes the named plaintiffs adequacy as a representative of the class members as required under Rule 23(a)(4). Second, FedEx Ground argues that common issues of law and fact do not predominate
The named plaintiff must “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). FedEx Ground argues that Ms. Floyd is an inadequate class representative for several reasons. FedEx Ground claims that because Ms. Floyd is a former driver she cannot show a real or immediate threat of any alleged harm and so lacks standing to pursue declaratory and injunctive relief for current drivers. The court addressed, and rejected, that argument in conjunction with the Tennessee plaintiffs. FedEx Ground also claims Ms. Floyd can’t represent the interests of all of the Alabama plaintiffs because she worked as a Home Delivery driver in a single work area and wasn’t interested in expanding her business. FedEx Ground maintains Ms. Floyd’s interests are divergent from Ground drivers and multiple work area drivers who have a long-term interest in being classified as either contractors or employees.
Ms. Floyd’s interests are not so divergent that she can’t adequately represent all of the drivers within the proposed Alabama class. While FedEx Ground focuses on the variances in control over Ms. Floyd versus other Alabama drivers, these differences do not render Ms. Floyd unable or unlikely to fully represent class interests. See Walker v. Bankers Life & Cas. Co., No. 06 C 6909,
FedEx Ground also argues that the named Alabama plaintiff can’t demonstrate that common questions of law and fact predominate over individual issues as required for class certification under Rule 23(b)(3). Like the Kansas plaintiffs, the named Alabama plaintiff asserts claims that hinge on whether the plaintiffs are deemed employees under Alabama law. While the plaintiff relies on the substance of the standard Operating Agreement, FedEx Ground contends the court must look outside the contract’s terms and conduct an individualized examination of each plaintiffs relationship with FedEx Ground. To this end, FedEx Ground offers testimony from a number of mid-level managers indicating their varied experience on issues such as the ability to control their schedule, routes, delivery methods, volume of packages, and income level.
The common question the named Alabama plaintiff presents is whether FedEx Ground misclassified its drivers as independent contractors instead of employees. Under Alabama law, the primary test in determining the existence of an employee-employer relationship is whether the employer maintains a right of control over the actions of the alleged employee. Hester v. Brown,
FedEx Ground contends that the right of control test requires the court to examine the Alabama drivers’ varied experiences, focusing on the actual exercise of control in determining contractor independence. As in Kansas, however, Alabama courts look
Moreover, FedEx Ground claims that even if the court relies on the standard Operating Agreement to determine employee status, individualized extrinsic evidence of each driver’s course of dealing with FedEx Ground is necessary to interpret the contract provisions related to control. The court disagrees. The named Alabama plaintiff doesn’t contend that the Operating Agreement’s terms are ambiguous. Instead, she argues that FedEx Ground’s treatment of its drivers is inconsistent with their purported definition as independent contractors. As such, common questions arising from FedEx Ground’s standard treatment of its drivers predominate and satisfy the requisites for class certification under Rule 23(b)(2) or 23(b)(3).
New York
The New York plaintiffs allege violations of New York’s wage statutes and unlawfulness of their Operating Agreement with FedEx Ground. The New York plaintiffs seek to certify a class of:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 27, 1998, to provide
package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New York.
The New York plaintiffs claim they meet the requirements of Rule 23(a). First, they claim the class is sufficiently numerous to make joinder impractical: there were 695 pickup and delivery drivers in New York at the time of briefing, and even more signed Operating Agreements during the proposed class period.
Second, the New York plaintiffs contend the class members share common questions of law or fact because FedEx Ground has engaged in standardized conduct towards each proposed class member. The New York plaintiffs say the class members’ claims arise out of FedEx Ground’s alleged nationwide policy of classifying its pickup and delivery drivers as independent contractors while treating them as employees. Accordingly, the New York plaintiffs say FedEx Ground violated New York Labor Law §§ 193(1) and 193(2) by deducting and withholding such things as vehicle expenses, cargo claims, and insurance claims not ordinarily chargeable to employees. The New York plaintiffs say their common law claims of unjust enrichment and quantum meruit also turn on whether the independent contractor classification was invalid. With respect to the declaratory judgment claim, the New York plaintiffs say, the Operating Agreement’s terms and FedEx Ground’s procedures will require identical analysis for each class member.
Third, the named New York plaintiffs contend their claims arise from the same practice or course of conduct that gives rise to, and are based on the same legal theory as, other class members’ claims. Each named plaintiff signed the standard Operating Agreement and underwent the same systematic control over the methods and means by which they accomplish their tasks.
Finally, as to the requirements of Rule 23(a), the named New York plaintiffs say they fairly and adequately protect the class’s interests. They include current and former drivers from the Home Delivery and Ground
The New York plaintiffs argue their damage claims should be certified under Rule 23(b)(3) because each claim is based upon the common question of whether they have been improperly classified as independent contractors. That drivers differed in hours worked, packages delivered, and earnings, the plaintiffs reason, doesn’t affect whether FedEx Ground’s right to control them in the course of their work makes them employees or independent contractors.
The New York plaintiffs say a single class action is superior to individual actions because efficiencies of a class action will reduce litigation expenses and court resources. Fear of economic retaliation by an employer, the plaintiffs argue, weighs in favor of certification in an employment context.
The New York plaintiffs seek certification of their declaratory and equitable claims under Rule 23(b)(2) because the ease seeks to define the relationship between FedEx Ground and the plaintiffs and the relief sought will benefit the entire class. FedEx Ground’s use of standard Operating Agreements and standardized policies constitutes action on grounds generally applicable to the class, they say.
FedEx Ground opposes class certification. First, FedEx Ground argues that New York drivers vary substantially in the freedom they have had to operate their businesses, so several of the New York plaintiffs’ claims, such as those for unjust enrichment, rescission, and reimbursement of wage deductions will turn on individualized inquiries. Second, FedEx Ground claims most New York drivers want to be independent contractors, so the named plaintiffs are out of step with the class they seek to represent. Third, FedEx Ground argues the class action device isn’t the way to handle this case, since the plaintiffs haven’t articulated a trial plan but have proffered a class definition that guarantees individual trials.
The second and third arguments mirror arguments the court rejected in the Kansas case, and FedEx Ground doesn’t argue to the contrary. Instead, in the aftermath of the Kansas ruling, FedEx Ground points to differences in controlling state law as disfavoring class treatment. While the Kansas ruling stressed the putative employer’s right to control as the central (and common) factor in determining employment status under Kansas law, FedEx Ground claims that New York law looks primarily to the control and supervision actually exercised and indicia of control not memorialized in the agreement.
The court doesn’t see the same distinction FedEx Ground perceives between Kansas law and New York law. The purported employer’s right to control is “the critical inquiry” under New York law. Bynog v. Cipriani Group, Inc.,
None of the cases FedEx Ground cites suggests that the inquiry can’t be made through a common Operating Agreement, at least when the parties suggest few deviations from that agreement in the field. For example, in In re Claim of Tyner,
Controlling New York law is not identical to Kansas law, but it is sufficiently similar that the court’s reasoning in the Kansas class certification opinion applies equally to the New York class certification motion.
The New York plaintiffs’ motion for class certification is granted.
Massachusetts
The Massachusetts plaintiffs seek injunctive and declaratory relief, claim damages because FedEx Ground is violating the state’s independent contractor law and the state’s wage law, and bring claims for unjust enrichment and quantum meruit. They seek certification of a class of all who (1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now called forms OP-149 and OP-149 RES); (2) drove or will drive a vehicle on a full-time basis since May 7, 1999 to provide package pick-up and delivery services pursuant to the Operating Agreement; and (3) were dispatched out of a terminal in the state of Massachusetts.
The Massachusetts plaintiffs contend the proposed class is so numerous that joinder is impractical. At the time of its original brief, there were 292 drivers for FedEx Ground, and there would be many others who entered into Operating Agreements during the class period. They also contend questions of law and fact are common to the class because FedEx Ground treats all class members the same way. They note that controlling Massachusetts law requires FedEx Ground—not the plaintiffs—to prove that the class members are independent contractors. Mass. Gen. Laws ch. 149, § 148B(a)(l-3). That law, they argue, creates a presumption (common to the class) against independent contractor status. See Coverall N. Am., Inc. v. Commissioner of Div. of Unemployment Assistance,
The alleged misclassification of employees also, the plaintiffs say, provides a common issue for their common law quantum meruit claim, which focuses on enrichment to FedEx Ground rather than upon any individual plaintiffs. See Schumacher v. Tyson Fresh Meats, Inc.,
The Massachusetts plaintiffs argue that the named representatives’ claims have the same essential characteristics as the claims of the class at large, so the Rule 23(a) typicality requirement is satisfied even if some factual distinctions exist. The named plaintiffs, like the putative class members, are present and former drivers who were parties to the Operating Agreement. They and their counsel have zealously represented and advocated on behalf of the class as a whole.
The Massachusetts plaintiffs argue that the common questions predominate because they center on the meanings and functions of standardized forms or contracts. See Lucas v. GC Sews. L.P.,
The Massachusetts plaintiffs argue that a class action is superior to other methods of adjudicating their controversy. They point to the efficiencies (and consequent reduced expenses) gained by use of a class action for common questions, and argue that most class members would be unable to pursue claims for relatively small awards. See Deposit Guaranty Nat’l Bank v. Roper,
FedEx Ground argues the claims lack commonality because the putative class members have had varying experiences with FedEx Ground. The drivers are associated either with FedEx Ground Home Delivery or FedEx Ground; some have multiple work ar
FedEx Ground asserts several conflicts exist within the purported class. Only about a quarter of the Massachusetts drivers agree with the remedy the plaintiffs propose; current and former drivers may have divergent interests; and multiple work area drivers have considerably less interest than single work area drivers in being deemed employees.
Finally, FedEx Ground argues that the class action device is not a superior method by which to litigate this ease. The class definition refers to drivers who are full time, but doesn’t define the term. Since FedEx Ground doesn’t view the drivers as employees, its records won’t disclose who meets any definition that might be chosen. For much the same reasons, FedEx Ground argues, the plaintiffs’ equitable relief claims are unfit for class certification under Rule 23(b)(2)
The court rejected the second and third arguments in the Kansas ease, and the arguments are no stronger in the Massachusetts ease. As to the third, FedEx Ground seems to have had no difficulty in identifying class members for purposes of quantifying the number of putative class members who disagree with the remedies the Massachusetts plaintiffs seek. The court concludes the challenge of class identification is considerably less daunting than FedEx Ground fears. The proposed class definition is “sufficiently definite” enough to permit class members to be ascertained. See Alliance to End Repression v. Rochford,
In its supplemental brief, FedEx Ground argues that Massachusetts employs a multifactor test to determine employments status, see Yohn v. L.A. Ruiz Assocs., Inc., No. 97384,
The Massachusetts plaintiffs are correct that their law places upon an alleged employer the burden of proving independent contractor status and requires the alleged employer to prove three things:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of business of the employer; and
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
Mass. Gen. Laws ch. 149, § 148B(a)(l-3). Of necessity, then, FedEx Ground will be required to prove its drivers’ freedom from control, not only under the drivers’ contract, but also “in fact.” Unlike the evidence that will be needed to resolve the claims in most of the states discussed so far, FedEx Ground will need to prove freedom from control in practice, as well as freedom from control under the Operating Agreement. The Massachusetts plaintiffs may believe that freedom in fact need never be reached because FedEx Ground will be unable to carry its burden of showing freedom from control under the Operating Agreement, making the plaintiffs employees. Perhaps so, but this is not the time for decision on the merits.
Massachusetts law doesn’t look solely to the right to control in deciding employment status. It looks to the relationship between payor and payee in the field, regardless of what control might be given the payor in the contract. Because a class action would require examination of the actual relationship—not just the relationship created by the Operating Agreement—between FedEx Ground and 292 drivers who would be class members, common questions do not predominate. Whether the Operating Agreement vests too much control in FedEx Ground is a common question, but is just one of several.
The Massachusetts plaintiffs’ motion for class certification must be denied.
California
The California plaintiffs seek certification of three classes. First, as to their FMLA claims, they seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the United States.
As to their claims under California law, they seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of California.
Finally, they seek certification of a sub-class for their overtime claim:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; 3) were dispatched out of a terminal in the state of California; and 4) at any time during the class period operated a vehicle with a gross vehicle weight rating of less than 10,001 pounds.
The California plaintiffs argue that their proposed classes satisfy the numerosity requirement: the FMLA class would include some 12,000 active drivers across the nation, and the California class would include more than 1,000 active and former drivers, more than 100 of whom would be in the sub-class.
The California plaintiffs contend that the national FMLA claim raises several questions common to class members: whether class members are “eligible employees” under the FMLA, which turns on whether they are employees rather than independent contractors; whether FedEx Ground interfered with class members’ FMLA rights through the standard form Operating Agreement, uniform company policies, and standard practices requiring drivers to forego FMLA leave unless they can provide approved substitute drivers at their own expense. The California plaintiffs argue that FedEx Ground teaches terminal managers to discourage drivers from taking time off and to insist that drivers make contingency plans to cover their routes in case of illness.
The California plaintiffs claim they satisfy the requirement of typicality because their claims arise from FedEx Ground’s practice of uniformly classifying drivers as independent contractors, thereby denying everyone rights under the FMLA, the California Labor Code, and the California unfair competition law. They contend their claims for injunctive and declaratory relief satisfy Rule 23(b)(2) because FedEx Ground has acted on grounds generally applicable to the class by classifying them as independent contractors. They contend the court should certify a hybrid class on the state law claims, with a Rule 23(b)(2) class for the declaratory and injunctive claims and a Rule 23(b)(3) class for the damages claims.
FedEx Ground contends individualized analysis is required with respect to the issues of the control FedEx Ground actually exercises over drivers, the parties’ intent in signing an Operating Agreement that purports to establish an independent contractor relationship, the extent of each driver’s investment in his or her business, the drivers’ opportunity to profit, whether a driver operates a distinct business, whether a driver has employees, the method of payment, whether the work ordinarily is performed under a supervisor or requires special skills, length of driver’s experience, and whether a given classification is a subterfuge.
Further, FedEx Ground argues, individualized analysis will be required for some of its defenses and some of the plaintiffs’ damages claims, such as whether expenses the plaintiffs say should have been reimbursed were reasonable, the amount of overtime a driver worked, what deductions should or could have been made from any employee paycheck, and whether certain purchases by drivers were coerced.
With respect to FMLA claims, FedEx Ground argues that the former drivers don’t have standing to assert a claim for wrongful interference with their FMLA rights, while current drivers must prove both their status as “eligible employees” under the FMLA, and that FedEx Ground interfered with their FMLA rights. Given its view that determining employment status requires individualized analysis, FedEx Ground further opines that the FMLA claim doesn’t involve common questions of fact or law. Finally, FedEx Ground says the proposed FMLA class members have impermissibly divergent interests because too few drivers want to be classified as employees.
FedEx Ground also argues that conflicts between the named plaintiffs and the purported class members preclude class certification. Most of the plaintiffs, they argue, are former drivers with no stake in injunctive relief, and the named plaintiffs alone present fraud claims. Further, FedEx Ground says single area contractors can’t represent multiple area contractors. FedEx Ground argues that the class action is not a superior method for resolution: the plaintiffs haven’t presented a trial plan or indicated how to decide which drivers were “full time.”
Previous analyses have addressed, and rejected, FedEx Ground’s arguments concerning standing of former drivers, the difficulty of identifying full time drivers, the superiority of the class action as a method for resolution, and the asserted conflict between class members. The court renews those conclusions here. The court does not read California law as does FedEx Ground. As the court understands the law that will govern the California plaintiffs’ state law
With respect to the FMLA claim, though, the court agrees with FedEx Ground. To establish a violation of the FMLA, a driver will have to establish that (1) the driver was eligible for the FMLA’s protections (in other words, an employee), (2) FedEx Ground was covered by the FMLA, (3) the driver was entitled to leave under the FMLA, (4) the driver provided sufficient notice of his or her intent to take leave, and (5) FedEx Ground denied the FMLA benefits to which the driver was entitled. Burnett v. LFW, Inc.,
The court grants the California plaintiffs’ motion for certification of a California class and sub-class, but denies the California plaintiffs’ motion for certification of a national FMLA class.
New Jeesey
The New Jersey plaintiffs bring claims under New Jersey’s Wage Payment Law, N.J. Stat. Ann. § 34:11-4.1, et seq., and Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq., breach of the covenant of good faith and fair dealing within the Operating Agreement, rescission of the Operating Agreement, quantum meruit damages for services performed, and declaratory and injunctive relief. They seek certification of a class under Federal Rule of Civil Procedure 23(b)(3) for their damages claims, and of a class Federal Rule of Civil Procedure 23(b)(2) for their claim for declaratory relief. Their proposed class definition under both rules is:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 19, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New Jersey.
The New Jersey plaintiffs say their proposed class meets the numerosity requirement; 388 drivers currently are under contract with FedEx Ground (FedEx Ground reports even more). As to commonality, the New Jersey courts look to § 220 of the Restatement (Second) of Agency (1958) to distinguish employees from independent contractors, MacDougall v. Weichert,
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
a. the extent of control which, by the agreement, the master may exercise over the details of the work;
b. whether or not the one employed is engaged in a distinct occupation or business;
c. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
d. the skill required in the particular occupation;
f. the length of time for which the person is employed;
g. the method of payment, whether by the time or by the job;
h. whether or not the work is a part of the regular business of the employer;
i. whether or not the parties believe they are creating the relation of master and servant; and
j. whether the principal is or is not in business.
These constitute the common questions for purposes of Rule 23(a)(2), the New Jersey plaintiffs contend, because if they are employees, they are entitled to recovery under the New Jersey Wage Law of deductions that FedEx Ground took pursuant to the Operating Agreement, FedEx Ground’s treatment of the drivers as independent contractors would amount to both an unconscionable commercial practice under the New Jersey Commercial Fraud Act and a breach of the covenant of good faith and fair dealing, and the drivers might be entitled to rescission on grounds of New Jersey public policy of protecting employees (and if the Operating Agreement is rescinded, they will be entitled to recover in quantum meruit for the value of the services they provided). The New Jersey plaintiffs say the preclusive effect of various administrative agency rulings also would amount to a common question of law.
The New Jersey plaintiffs maintain they are members of the class they seek to represent and are adequate class representatives; their counsel is experienced and competent.
FedEx Ground first contends that the New Jersey plaintiffs are not adequate representatives of the class. They filed incorrect interrogatory responses; their interests differ from the proposed class, most of whom want to be independent contractors; the Teamsters are directing the litigation; the fee agreement between the New Jersey plaintiffs and their attorneys compromises the class; former drivers cannot represent current drivers; and the current driver, a single work area contractor, cannot represent multiple work area drivers.
Second, FedEx Ground contends that New Jersey law requires an individualized examination of each of the Restatement factors measured against each driver. These arguments are discussed below.
Third, FedEx Ground contends that individualized determinations will be needed for several of its defenses to the New Jersey plaintiffs’ state law claims. FedEx Ground says it will be entitled to set off losses caused by any driver’s negligence or conversion from any recovery under the Wage Payment Law. FedEx Ground says that any driver’s success on a rescission claim for a completed contract will require proof that a given driver was deprived of the full benefit of those contracts. FedEx Ground contends that any plaintiffs recovery under the New Jersey Consumer Fraud Act requires proof of a causal nexus between the allegedly fraudulent practice and the resulting loss. The claims for breach of the duty of good faith and fair deаling, FedEx Ground says, will require an inquiry into the understandings and intent of each individual driver. Further, FedEx Ground says, its statute of limitations defense will require individualized inquiry into when any particular driver became aware, or should have become aware, of the fraudulent activity.
Fourth, FedEx Ground argues, as it has in most other cases in this docket, that a class action isn’t the superior method for litigating each potential class member’s claims because the plaintiffs haven’t offered any trial plan and because putative class members have a strong interest in controlling the outcome of the litigation; these arguments are no more persuasive to the court than they have been in other cases. FedEx Ground also argues that the proposed class definition is unworkable because it doesn’t define “full time” (this is the same argument found unpersuasive when raised in other cases in this docket) and because it would include future drivers within the class.
Fifth and finally, FedEx Ground argues that the New Jersey plaintiffs’ equitable relief claims are unfit for class certification under 23(b)(2) because (1) the amended com
The court has addressed many of FedEx Ground’s objections to the New Jersey plaintiffs’ adequacy to represent the proposed class in conjunction with class certification rulings for other states, and those arguments concerning the New Jersey plaintiffs are no more persuasive. FedEx Ground’s arguments about incorrect interrogatory answers and what might be an unusual fee agreement are unique to New Jersey, but FedEx Ground doesn’t persuade the court that those matters impair the abilities of the named plaintiffs or their attorneys to represent the class.
FedEx Ground contends that each driver’s individual situation must be examined on its own merits under New Jersey law. FedEx Ground contends that its drivers differ with respect to their abilities to configure routes and take on routes they choose, their abilities to control income; their abilities to determine their own schedule; their abilities to choose supplemental drivers and helpers; their abilities to control the volume of packages; their abilities to select their own vehicle and control its maintenance; their abilities to control delivery methods; whether they are supervised or unsupervised; the degree of skill each driver must have; provision of equipment; length of time the driver worked for FedEx Ground; method of payment; manner of termination of the work relationship; whether a driver accrues annual leave; and the parties’ intent.
The court doesn’t read the eases FedEx Ground cites as providing support for its contention that these issues require driver-by-driver examination. Millard’s, Inc. ¶. United States,
The New Jersey Supreme Court explained its test concisely: “The control test is satisfied whenever the employer retains the right of control, even if the employer may not exercise actual control over the worker.” Lowe v. Zarghami,
FedEx Ground also contends that individualized determinations will be necessary for several of its defenses to the New Jersey plaintiffs’ state law claims. Again, the court reads the law differently. Miller v. Director, Div. of Taxation,
Even when considering the defenses available to FedEx Ground, the matter of FedEx Ground’s right to control its drivers remains the predominant and common issue of fact and law.
Finally, FedEx Ground is factually correct that the New Jersey plaintiffs’ declaratory relief claim is simply a predicate to their damage claims, but that is no impediment to certification of a class under Rule 23(b)(2). Berger v. Xerox Corp. Ret. Income Guarantee Plan,
The court agrees with FedEx Ground that as the class is proposed, its statute of limitations defense would require individualized inquiry into when any particular driver became aware, or should have become aware, of the fraudulent activity. Yarchak v. Trek Bicycle Corp.,
With that modification, the court grants the New Jersey plaintiffs’ motion for class certification.
Maryland
Thomas Westcott, a former driver for the Home Delivery section of FedEx Ground, is the sole named plaintiff in the Maryland case. He seeks certification of the following class for claims for violation of Maryland’s wage statutes, unjust enrichment, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 5, 2003, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Maryland.
Mr. Westcott seeks certification of a damages and unjust enrichment class under Federal Rule of Civil Procedure 23(b)(3) for the claims under the Maryland Wage Payment and Collection 'Act, Md.Code Ann., Lab & Empl. § 3-501, et seq., and the unjust enrichment claims. He seeks certification under Federal Rule of Civil Procedure 23(b)(2) for the declaratory relief claim.
Mr. Westcott points to the 218 drivers in Maryland at the time of his motion in support of the numerosity requirement of Rule 23(a)(1). He contends that because he and the other Maryland drivers are employees rather than independent contractors under Maryland law, the deductions FedEx Ground made from the drivers’ earnings violate the wage payment act. Alternatively, he seeks rescission of the Operating Agreement because it contravenes Maryland public policy against depriving an employee of a portion of the wages he has earned. In distinguishing between employees and independent contractors, the Maryland courts emphasize whether the alleged employer has the right of control over the alleged employee in respect to the work to be performed. Baltimore Harbor Charters Ltd. v. Ayd,
Mr. Westcott says he is a member of the class and his claims are essentially the same as those of other drivers, so his claims are typical of the class he seeks to represent. He points to his extensive participation in the
Mr. Westcott presents the same arguments as most other plaintiffs in the docket with regard to the requirements of Rule 23(b)(3) being satisfied by the damages claims because common issues of law and fact predominate and class adjudication is superi- or to other available methods of resolution, and with regard to his request for declaratory judgment supporting certification of a class under Rule 23(b)(2).
FedEx Ground contends Mr. Westcott is an inadequate class representative. FedEx Ground notes that Mr. Westcott periodically violated FedEx Ground rules concerning acquisition of recipient’s signatures, so his claims are subject to equitable defenses. Further, FedEx Ground contends that Mr. Westcott’s work ethic (he would, according to FedEx Ground, “rather stop working at noon than have his business succeed”) makes him an unacceptable representative of a class that contains hard-working drivers with entrepreneurial spirit. FedEx Ground also challenges Mr. Westcott’s standing to represent current drivers since (to the apparent surprise of his attorneys) he quit his position as a FedEx Ground driver, and his adequacy, as a former Home Division driver, to represent Ground drivers.
FedEx Ground also contends that individual questions predominate over common questions. In deciding whether one is an independent contractor, Maryland courts consider factors including the power of control, selection and engagement of employees, payment of wages, power of dismissal, and whether the work is part of the regular business of the employer. FedEx Ground contends that each potential class member’s situation must be evaluated on its own merits. Moreover, FedEx Ground argues, since quantum meruit smacks of fraud, the court will have to decide what was said, to whom it was said, and who relied on which statements, which are individual questions.
Finally, FedEx Ground argues, as it has in several other cases in this docket, that Mr. Westcott offers no trial plan, the proposed class definition is unmanageable because it doesn’t define driving on “a full-time” basis, and putative class members have a strong interest in controlling the litigation’s outcome. FedEx Ground also raises the same objections as it raises in other cases to certification of a 23(b)(2) class on the declaratory judgment claim. These objections are no more persuasive with respect to Mr. Westcott’s class certification motion than in the other cases.
The court also disagrees with FedEx Ground that Mr. Westcott’s assertedly unclean hands will doom his claims and make him an unsuitable class representative; there is no nexus between Mr. Westcott’s allegedly improper conduct and the claims he brings. See Hicks v. Gilbert
The quantum meruit claim won’t require individual analysis. See Alternatives Unlimited, Inc. v. New Baltimore City Bd. of Sch. Comm’rs,
After reviewing case law and statutes from California and several other jurisdictions,
The factors considered in this Court’s opinions regarding the doctrine of respondeat superior and construction of the term “employee” under the principles enumerated in Restatement (Second) of Agency, as well as the case law interpreting the term “employee” under the wage act statutes of other jurisdictions provide an appropriate framework for determining whether an individual is an employee covered by the Maryland Wage Payment and Collection Act. Such factors include:
1. Whether the employer actually exercised or had the right to exercise control over the performance of the individual’s work;
2. Whether the individual’s service is [ ] outside all the usual course of business of the enterprise for which such service is performed;
3. Whether the individual is customarily engaged in an independently established trade, occupation, profession, or business;
4. Whether it is the employer or the employee who supplies the instrumentalities, tools, and location for the work to be performed;
5. Whether the individual receives wages directly from the employer or from a third party for work performed on the employer’s behalf; and
6. Whether the individual held an ownership interest in the business such that the individual had the ability and discretion to affect the general policies and procedures of the business.
The Baltimore Harbor Charters court went on, though, to offer guidance to the trial court on remand, explaining with respect to the first factor, “[t]he emphasis on the right to exercise control is whether Berman could have exercised control over Ayd, not whether he actually did.”
The court understands Mr. Westcott to bring his claims based wholly on the light to control reserved to FedEx Ground under the Operating Agreement, not upon FedEx Ground’s actual exercise (or forbearance) of control. If the court’s understanding is correct, the Operating Agreement is all that will be needed to determine whether FedEx Ground has a right to control such as to support Mr. Westcott’s claim of employee status. The remaining factors in the Baltimore Harbor Charters test can be resolved, too, without reference to differential treatment of individual drivers.
The court grants Mr. Westcott’s motion to certify the Maryland classes.
Michigan
The Michigan plaintiffs seek certification of the following class under Federal Rule of Civil Procedure 23(b)(3) for their claims of breach of implied contract, unjust enrichment, and declaratory judgment, and under Rule 23(b)(2) for their declaratory judgment claim. The proposed class includes:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 25, 1998, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Michigan.
The Michigan plaintiffs’ arguments are nearly identical to those Mr. Westcott raised on Maryland class’s behalf, with the necessary exception of the controlling state law. FedEx Ground responds with much the same arguments, augmented by a stronger assault on the role it perceives the Teamsters to be
To decide whether one party is another’s employer, Michigan courts use an “economic reality test” that entails consideration of control, payment of wages, hiring and firing, and responsibility for the maintenance of discipline. Ashker v. Ford Motor Co., 245 MichApp. 9,
The parties’ disappointing citation choices slowed the court in resolving the Michigan motion. For example, FedEx Ground argues that by “control,” Michigan courts mean actual control, a proposition for which they cite Wells v. Firestone Tire,
Similarly, the Michigan plaintiffs cite Farrell v. Dearborn Mfg. Co.,
Mantei v. Michigan Pub. Sch. Employees Ret. Sys, 256 MichApp. 64,
Still more instructive is Kidder v. Miller-Davis Co.,
Sliter v. Cobb,
These cases persuade the court that while FedEx Ground’s right to control its drivers under the Operating Agreement is an issue common to all class members, that common issue does not predominate because individual issues will have to be considered—matters of actual control, not just the right to control—for each of more than 350 class members. Class treatment is inappropriate in light of governing Michigan law, so the court denies the Michigan plaintiffs’ motion for class certification.
Minnesota
The Minnesota plaintiffs allege violations of Minnesota’s Illegal Deductions from Wages Law, Minn.Stat. § 181.79, subd. 1, Failure to Keep Records Law, Minn.Stat. § 177.30, and Consumer Fraud Act, Minn. Stat. § 325F.69, subd. 1. They seek rescission of the Operating Agreement, quantum meruit damages for services performed, and declaratory and injunctive relief. They seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 5, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Minnesota.
The Minnesota plaintiffs’ wage deduction claim seeks reimbursement of sums that FedEx Ground deducts or withholds from drivers’ earnings to cover FedEx Ground’s ordinary business expenses. The record-keeping claim asserts that the drivers are employees as to whom FedEx Ground has not kept records required by statute. The consumer fraud claim appears to be based on FedEx Ground’s representation to the drivers that they are independent contractors.
Apart from the controlling law, the Minnesota plaintiffs make essentially the same argument Mr. Westcott made for the Maryland class. The Minnesota plaintiffs report that there were 355 drivers in Minnesota when they filed their class certification motion. The Minnesota plaintiffs say they will rely on common proof, including the Operating Agreement, FedEx Ground standard policies, and training and programmatic treatment of its drivers, to establish that the drivers are employees rather than independent contractors.
FedEx Ground raises many of the same arguments already rejected in this order with respect to the Minnesota plaintiffs. FedEx Ground says the named plaintiffs are inadequate class representatives because (as former drivers) they have no stake in any claim for injunctive or declaratory relief, because the class disagrees on the proposed remedy, and because the named plaintiffs have shown little interest in growing their businesses, they can’t represent multiple work area drivers or even single work area drivers. FedEx Ground also argues that a class action is not the superior method for litigating each potential class member’s claims because the plaintiffs offer no trial plan, don’t define “full time,” and putative
The Minnesota plaintiffs and FedEx Ground generally agree that Minnesota courts apply the following factors to decide whether a person is an employee or independent contractor: (1) the right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. Minn. R. 3315.0555; Boily v. Commissioner of Econ. Sec.,
FedEx Ground contends that Minnesota law requires examination of each factor with respect to each driver. FedEx Ground notes that in Boily v. Commissioner,
Inasmuch as Dr. Boily is a resident of California, it is apparent that his opportunity to control the manner and means of the three dentists whose status is in question would be extremely limited even if the right of control had been reserved. It appears, however, that Dr. Boily did not reserve to himself the right to control the manner in which the dentists practice their profession.
Id. FedEx Ground also cites Broussard v. Meineke Disc. Muffler Shops,
Thus, even if FedEx Ground actually allowed variations between drivers with respect to such things as choosing supplemental drivers, delivery methods, determining schedule, controlling package volume, reconfiguring routes, taking on routes of the driver’s choice, controlling income, selecting vehicles and controlling maintenance, and controlling appearance, FedEx Ground cites no authority for the proposition that such variations matter if—as the drivers claim— FedEx Ground had the аuthority to control such things. FedEx Ground argues that there also are variations between drivers as to mode of payment, furnishing of materials or tools, control of the premises where the work is done, and the right to discharge cannot be evaluated on the basis of class-wide proof.
The differences as to payment appear to deal with calculation of payment, rather than mode of payment. Similarly, the differences FedEx Ground cites with respect to furnishing (or acquisition) of tools do not appear germane to whether the drivers are employees; it appears from FedEx Ground’s argument that FedEx Ground gives all drivers the same choices. FedEx Ground doesn’t appear to dispute that it has control over the terminals, though it posits that the terminals are not where the drivers do most of their work.
As to the specific state law claims, FedEx Ground argues that individual inquiry will be required as to some of its defenses, such as waiver and estoppel. FedEx Ground also says it might raise a laches defense to the rescission claim. The variety of individual defenses, though, doesn’t eliminate the presence of a predominant common question of fact. See LaFlamme v. Carpenters Local No. 370 Pension Plan,
FedEx Ground says a showing of reliance is essential for Consumer Fraud Act cases seeking damages, for which FedEx Ground quotes Group Health Plan, Inc. v. Philip Morris, Inc.,
More to the point, in cases such as this, where the plaintiffs’ damages are alleged to be caused by a lengthy course of prohibited conduct that affected a large number of consumers, the showing of reliance that must be made to prove a causal nexus need not include direct evidence of reliance by individual consumers of defendants’ products. Rather, the causal nexus and its reliance component may be established by other direct or circumstantial evidence that the district court determines is relevant and probative as to the relationship between the claimed damages and the alleged prohibited conduct. Further, in the context of the certified question, we reject the view expressed in two federal court decisions that our misrepresentation in sales laws require proof of individual reliance in all actions seeking damages. To impose a requirement of proof of individual reliance in the guise of causation would reinstate the strict common law reliance standard that we have concluded the legislature meant to lower for these statutory actions. Moreover, we are confident that the legislature would not have authorized private damages actions such as this, where the alleged misrepresentations are claimed to have affected a large number of consumers, while retaining a strict burden of proof that depends on evidence of individual consumer reliance.
Group Health Plan v. Philip Morris,
Whether the Minnesota drivers were employees or independent contractors is a common question of fact that can be decided on a class-wide basis. The court grants the Minnesota plaintiffs’ motion for class certification.
Pennsylvania
Derek Willis asks the court to certify a class under Federal Rule of Civil Procedure 23(b)(3) for his claims for injunctive and declaratory relief, for damages for violation of the Pennsylvania Wage Payment and Collection Law, and for rescission of the Operating Agreement. Mr. Willis also seeks certification under Rule 23(b)(2) for his injunctive and declaratory relief claims. He seeks to certify the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 25, 2001, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the commonwealth of Pennsylvania.
The parties make essentially the same arguments as those presented in the other states. Mr. Willis says the proposed Pennsylvania class is so numerous (571 Pennsylvania drivers at the time of the motion) that joinder is impractical, that the question of employee or independent contractor is common to the proposed class and can be resolved without analysis of individual drivers, that his claim (he is a former FedEx Ground driver who worked under the standard Operating Agreement) is typical of аbsent class members, and that he is an adequate class representative. With respect to his request to certify a class under Rule 23(b)(3) for the damages claims, Mr. Willis says the common issue (employee v. independent contractor) predominates, and a class action is superior to other methods of resolving the claims. With respect to his request to certify a class under Rule 23(b)(2) for the injunctive and
FedEx Ground’s argument that Mr. Willis lacks standing because he no longer drives for FedEx Ground is no stronger than in other cases already discussed, though it is more interesting because FedEx Ground fired Mr. Willis after he filed this suit and gave his deposition. See Wetzel v. Liberty Mut. Ins. Co.,
The remaining class certification issues turn on whether Pennsylvania law allows the central issue of employee vs. independent contractor to be resolved without examining each individual driver.
In determining whether a relationship is one of employer-employee or independent contractor, “... the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged. The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contraetee-eontractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.”
Urbano v. STAT Courier, Inc.,
With respect to these factors, whether and to what extent FedEx Ground has the right of control can be resolved by reference to the Operating Agreement and FedEx Ground policies. The extent to which FedEx Ground exercised its right to control with respect to a given employee or terminal won’t change the analysis: while one might become an employer by exercising more authority than is contractually granted, see, e.g., Urbano v. STAT Courier,
That common question—whether the Operating Agreement and FedEx Ground policies based on the Operating Agreement vest in FedEx Ground such right to control the manner of the drivers’ performance of their work that FedEx Ground is the drivers’ employer—predominates over all other issues in the sense that it is the keystone to each of Mr. Willis’s claims. Whether the Wage Payment and Collection Law allowed the challenged deductions from the drivers’ pay turns on whether the drivers are employees.
For these reasons, the court grants Mr. Willis’s motion to certify a class of drivers dispatched from Pennsylvania terminals.
New Hampshire
The New Hampshire plaintiffs assert claims under New Hampshire law for failure to pay overtime, N.H. Rev. Stat. Ann. § 279:21 VIII, and to provide meal breaks, N.H. Rev. Stat. Ann. § 275:30-a, unauthorized deductions from compensation, N.H. Rev. Stat. Ann. § 275:48, failure to reimburse expenses, N.H. Rev. Stat. Ann. § 275:57, violation of the Unfair Business Practices Act, N.H. Rev. Stat. Ann. ch. 358-A, et seq., rescission, failure to reimburse employee expenses, and also seek declaratory relief. They seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 27, 2002, to provide package pick-up and delivery services pursuant to the Operаting Agreement; and 3) were dispatched out of a terminal in the state of New Hampshire.
For the most part, the New Hampshire plaintiffs and FedEx Ground raise the same arguments that already have been address in the Kansas certification opinion and this opinion. The New Hampshire plaintiffs point to 80 drivers in New Hampshire as proof of numerosity. FedEx Ground raises arguments already considered concerning the putative class’s minority position within the workforce as far as remedy and the general unsuitability of these claims for class treatment. The parties disagree as to the controlling state law.
The New Hampshire plaintiffs contend the drivers are employees. If this is so, they argue, they are entitled to unpaid compensation, breaks, standard deductions, and unpaid business expenses, including business expenses such as truck payments, vehicle insurance, vehicle maintenance, deductions for workers’ compensation insurance, and any wages withheld other than what New Hampshire statutes allow.
FedEx Ground first argues that New Hampshire law effectively precludes class certification of these claims. N.H. Rev. Stat. Ann. § 275:53 provides that actions asserting claims such as the New Hampshire plaintiffs’ statutory claims may only be brought “by any one or more employees for and in behalf of himself or themselves, or such employee or employees may designate an agent or representative to maintain such action.” Given that provision, FedEx Ground reasons, only the person claiming employee status or someone that person has designated has standing to assert claims.
FedEx Ground cites Trezvant v. Fidelity Employer Sens. Corp.,
This court doesn’t read N.H. Rev. Stat. Ann. § 275:53 to prohibit class actions. As this court reads the statute, § 275:53 broadens the class of persons who may bring specified suits to include designated agents or representatives. FedEx Ground hasn’t persuaded the court that the statute limits standing rather than broadening it.
For purposes of the statutory claims, an “employee” is defined as:
... every person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or
(a) The person possesses or has applied for a federal employer identification number. ...
(b) The person has control and discretion over the means and manner of performance of the work in [achieving] the result of the work____
(c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer____
(e) The person holds himself or herself out to be in business for himself or herself____
(I ) The person is not required to work exclusively for the employer.
N.H. Rev. Stat. Ann. § 275:42(II). With respect to their common law claims, the New Hampshire plaintiffs say their status turns on whether FedEx Ground controls or has the right to control the manner of the task they are to perform, citing Harper v. Healthsource New Hampshire, Inc.,
FedEx Ground reads New Hampshire law differently. FedEx Ground says New Hampshire courts look beyond control to the “totality of the circumstances” of the alleged employment in deciding whether a person is an independent contractor. FedEx Ground cites four cases for its position: Boissonnault v. Bristol Federated Church,
The court doesn’t read New Hampshire law as FedEx Ground does. Until 1970, New Hampshire looked only to the purported employer’s right to control, so one without a right to control the alleged employee could never be an employer. Boissonnault v. Bristol Federated Church,
The court parts ways with FedEx Ground’s reading of the law at the point FedEx Ground implicitly concludes that one with right to control the manner and means of the task’s execution can shed its employer status under New Hampshire law if it can marshal enough of the factors from the Restatement (Second) of Agency § 220. None of the New Hampshire cases that FedEx Ground cites found an indeрendent contractor relationship notwithstanding the hiring party’s right to control the method and means of the other’s work. This is consistent with the New Hampshire court’s understanding that the Hunter court adopted a “more expansive view of the relationship and its determination,” Boissonnault v. Bristol Federated Church,
Individual analysis of each driver might well be required if the New Hampshire plaintiffs claimed the other Restatement (Second) of Agency § 220 factors made them employees despite a lack of FedEx Ground control over the manner and means by which drivers are to complete their work. But that is not this case. The New Hampshire plaintiffs contend that the Operating Agreement vests such right to control in FedEx Ground as to make the drivers employees. The individual Restatement factors that FedEx Ground analyzes in its response appear quite unlikely to affect that contention.
Both the statutory and common law claims may be resolved solely by reference to Fe
South Caeolina
The South Carolina plaintiffs seek certification of classes under Rule 23(b)(2) and 23(b)(3) for statutory claims for unlawful wage deductions under South Carolina Labor Law, S.C. Code Ann. § 41-10-40, common law claims for rescission and unjust enrichment, and a claim for declaratory relief. S.C. Code Ann. § 15-53-20. They seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 6, 2002, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of South Carolina.
The South Carolina plaintiffs report that there were 162 active drivers in South Carolina when they filed their class certification motion. Apart from issues dependent on South Carolina law, neither the South Carolina plaintiffs nor FedEx Ground raised any arguments on this motion that the court hasn’t already resolved in favor of driver plaintiffs and against FedEx Ground.
The South Carolina plaintiffs assert that the state’s statutes don’t define “employee,” so to distinguish between employees and independent contractors, South Carolina courts look to the hiring party’s right and authority to control and direct the manner or means by which the undertaking is to be accomplished, not the actual control the hiring party exercised. The South Carolina plaintiffs cite Dawkins v. Jordan,
FedEx Ground reads South Carolina’s test as one requiring a fact-specific determination based on four factors: “(1) direct evidence of the right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire.” South Carolina Workers’ Comp. Comm’n v. Ray Covington Realtors, Inc.,
The court finds no ambiguity at all in South Carolina law: the right to control the manner and means of performance creates an employer-employee relationship. Whether the control is exercised does not affect the nature of the relationship. For example, in Dawkins v. Jordan,
The South Carolina Supreme Court also distinguished between the right to control and actual control in Young v. Warr,
The general test applied is that of control by the employer. It is not the actual control then exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment____ [T]he right of power of control retained by the person for whom the work is being done is uniformly re*473 garded as the essential criterion for determining whether the workman is an employee or an independent contractor.
The South Carolina Court of Appeals explained in Nelson v. Yellow Cab Co.,
The fundamental test of the employment relationship is the right of the employer to control the details of the employee’s work. It is not the actual control exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the mаnner .or means of its accomplishment.
The test is based on the right to control, not the exercise. By an “exercise test,” the employee would seem to be uncontrolled; yet, “it will often be found that the employer, in any showdown, would have the ultimate right to dictate the method of work if there were any occasion to do so.” The right to control does not require the dictation of the thinking and manner of performing the work. It is enough if the employer has the right to direct the person by whom the services are to be performed, the time, place, degree, and amount of said services.
The four factors to which FedEx Ground points don’t add to the inquiry into control; they steer the determination of whether the alleged employer has the right of control. See South Carolina Workers’ Comp. Comm’n v. Ray Covington Realtors,
Whether the FedEx Ground drivers are employees can be determined from the Operating Agreement and corporate documents, without reference to individual circumstances. Whether the drivers are employees is the predominant issue for each of the South Carolina plaintiffs’ claims. The court will grant the South Carolina plaintiffs’ motion for class certification.
Missouri
The Missouri plaintiffs seek certification of the following class under Rule 23(b)(2) and 23(b)(3) to prosecute their statutory claim for unauthorized wage deductions, Mo.Rev.Stat. § 290.010, their common law claim for rescission and unjust enrichment, and their claim for declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since March 6, 2001 to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Missouri.
Apart from arguments dependent on Missouri law, the parties present arguments already discussed in this opinion and in the
FedEx Ground argues that the Missouri plaintiffs—-all former single work area drivers out of a single Home Delivery terminal— lack standing, can’t represent current multiple work area or Ground drivers, and don’t represent the aspirations of most Missouri drivers. FedEx Ground argues that Missouri’s test for agency status requires individualized analysis, class certification is inappropriate when contractor status is at issue, and the Missouri plaintiffs offer no trial plan and too inexact a class definition (because of the limitation to full-time drivers).
Each of those arguments has been resolved in favor of class certification when presented with respect to certification motions from other states, and the parties present nothing to lead to a different ruling with respect to the Missouri motion. FedEx Ground also raises a unique argument about some of the named Missouri plaintiffs having given deposition testimony that FedEx Ground finds unconvincing, but the court does not see the cited testimony as making any of the named plaintiffs inadequate representatives.
The class certification issue, then, comes down to whether Missouri law is (as the Missouri plaintiffs argue) amenable to class determination of the drivers’ agency status or requires (as FedEx Ground argues) a driver-by-driver analysis.
It appears to the court that while the right to control determines whether one is an employee or independent contractor, see, e.g., Cloninger v. Wolfe,
The factors to consider in determining whether or not the requisite right to control exists are: “(1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract.”
Leach v. Board of Police Comm’rs,
Whether FedEx Ground has the right to control its drivers within the meaning of Missouri agency law cannot be resolved by simple reference to the Operating Agreements and corporate policies. Missouri courts define the “right to control” with reference to the actual exercise of control, Leach v. Police Comm’rs,
Accordingly, the court denies the Missouri plaintiffs’ motion for class certification.
Oregon
The Oregon plaintiffs in the Slay-man case seek certification of a class under Federal Rule of Civil Procedure 23(b)(3) for their claims for illegal deductions from wages, Or.Rev.Stat. § 652.610, and rescission of the Operating Agreement, and under Federal Rule of Civil Procedure 23(b)(2) for their claim for declaratory relief. These plaintiffs don’t seek injunctive relief, though another set of plaintiffs seek injunctive relief in another case (Jon Leighter, et al. v. FedEx Ground Ground Package System, Inc., Civil No. 3:07-CV-328-RLM-CAN (OR)). The Oregon Slayman plaintiffs seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 20, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Oregon.
The parties’ arguments over class certification track those from other states and, to the extent the arguments are the same, are no more or less persuasive with respect to the Oregon Slayman plaintiffs than they have been with respect to other class certification motions. Apart from differences in governing state law, the argument unique to this case relates to named plaintiff Dennis McHenry, who has a separate state court suit pending against FedEx Ground, in which he makes allegations that FedEx Ground reads as inconsistent with the allegations in this ease. The court does not perceive such inconsistencies as to make Mr. McHenry an inadequate class representative.
The Oregon Slayman plaintiffs say Oregon courts use the common law “right to control” test to decide whether a worker is an employee or an independent contractor, considering (1) the right to, or the exercise of, control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire. Under Oregon law, any contractual characterization of the relationship is not controlling, and the fact-finder is entitled to look beyond the terms of any contract and at the parties’ behavior to determine the true nature of the relationship. The Oregon Slayman plaintiffs say the right to control inquiry can be resolved solеly by reference to the Operating Agreement and FedEx Ground policies and procedures.
In their unjust enrichment claim, the Oregon Slayman plaintiffs say the Operating Agreement is illegal because it treats drivers as employees but calls them independent contractors, and a party to an illegal contract that is not equally at fault or blameworthy may repudiate the bargain and recover for the value of the party’s performance. They say they will have to show a benefit eon
To prove the drivers to be employees, FedEx Ground says, the Oregon Slayman plaintiffs will have to demonstrate that FedEx Ground had the right to control the manner and means of accomplishing the result, a decision that considers the right to, or the exercise of, control; the method of payment; the furnishing of equipment; the right to fire; and the terms of any contract between the parties. No single factor is dis-positive, so FedEx Ground says each driver’s individual situation must be evaluated.
FedEx Ground also says that some of the Oregon Slayman plaintiffs’ claims, such as the unpaid wage, are governed by Oregon’s “economic realities” test, which requires analysis of the degree of control the alleged employer exercised, the extent of the worker’s investment, the worker’s chance for profit or loss, skill and initiative the work requires, and the relationship’s permanence.
As the court reads the parties’ cited eases, Oregon law might vary somewhat depending on the nature of the claim, but would not require individual, driver-by-driver analysis to determine whether the drivers are employees or independent contractors. See Schaff v. Ray’s Land & Sea Food Co., Inc.,
FedEx Ground further says Oregon law doesn’t allow rescission of an executed contract without a showing of actual fraud, accident, mistake, or insolvency. Even if a contract has been fully executed, though, Oregon courts allow a party who is not equally blameworthy to repudiate the bargain and recover for the value of the party’s performance that was already provided. Mt. Joseph Cattle Co. v. Makin Farms, Inc.,
South Dakota
The South Dakota plaintiffs bring statutory claims for failure to indemnify, S.D. Codified Laws § 60-2-1, and unfair labor practices, S.D. Codified Laws § 60-9A-12, common law claims for rescission of the Operating Agreement and an accounting. They seek damages and injunctive and declaratory relief. The South Dakota plaintiffs report there were 46 drivers in South Dakota when they filed their motion; FedEx Ground says that when former drivers are included, the class would consist of about 84 members. The South Dakota plaintiffs seek certification of the following class:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since March 16, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of South Dakota.
In addition to arguments common tо other state class certification motions that already have been discussed in the Kansas ruling and this order, the parties disagree about whether South Dakota law will require individualized analysis and whether the proposed class is sufficiently numerous as to make joinder impractical.
FedEx Ground is correct that several courts have rejected proposed classes with less than 100 members as insufficiently numerous, see, e.g., Spectrum Fin. Cos. v. Marconsult, Inc.
The court cannot agree with the South Dakota plaintiffs, though, that South Dakota law demands no individual inquiry.
South Dakota applies a two-part test to determine whether a person is an employee or an independent contractor. The first part of the test is whether the worker is free, both under any contract and in fact, from control or direction over how the services are performed. Egemo v. Flores,
The second part of the South Dakota test, though, poses an inquiry that may be unique to South Dakota. The courts ask whether the worker or workers are customarily engaged in an independently established trade, occupation, profession or business. Davis v. Frizzell,
This issue cannot be resolved on a class-wide basis; it requires driver-by-driver examination. In Hendrickson’s Health Care, the court considered whether the workers held themselves out to the public as engaged in an independent business, whether they advertised their health care services, whether they had any separate clientele, and whether they had business premises or business cards.
To defend the South Dakota plaintiffs’ claim of employee status, then, FedEx Ground must be allowed to present evidence of which drivers purchased their own equipment, drove their own equipment before (or after) signing the Operating Agreement, were incorporated, and so on. The common question—whether the Operating Agreement leaves the drivers free from control or direction over how the services are performed—does not predominate over other questions affecting other members of the proposed class within the meaning of Federal Rule of Civil Procedure 23(b)(3). Because of the role individualized findings may play in determining the requests for declarative and injunctive relief, certification of a class also is improper under Federal Rule of Civil Procedure 23(b)(2).
Accordingly, the court denies the South Dakota plaintiffs’ motion for class certification.
Indiana
Indiana plaintiffs Roger Riewe, David Stacy, Jeff Shelton, Harold Bennett, and Rodney Owens, all former FedEx Ground pickup and delivery drivers, seek certification of a statewide Indiana class under Federal Rules of Civil Procedure 23(b)(2) and (b)(3) to pursue claims for compensatory damages under Indiana’s wage payment statutes, Ind.Code §§ 22-2-4-4 and 22-2-6-1, et seq., for rescission of the Operating Agreement, and for declaratory and injunctive relief.
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 28, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the State of Indiana.
The Indiana plaintiffs contend the court’s Rule 23(a) analysis in the Kansas order applies equally to their motion for class certification; their claims under the Indiana wage payment statutes and Indiana common law satisfy the requirements of Rule 23(b)(3) for the same reasons that the Kansas drivers asserting similar statutory and common law claims satisfied the requirements; and their claims for declaratory and injunctive relief satisfy the requirements of Rule 23(a) and (b)(2). They contend their claims are premised on the same fundamental common questions of law and fact as the Kansas plaintiffs because they all signed Operating Agreements with FedEx Ground that identify them as independent contractors and they all challenge the agreements’ interpretation, execution, and enforceability. Like the Kansas plaintiffs, the Indiana plaintiffs assert that all of their claims hinge on whether they are employees under state law and that Indiana determines the employment relationship by the existence of the right to exercise control, not the actual control FedEx Ground exercised over some employees. Expressway
FedEx Ground argues two issues distinguish the Indiana plaintiffs from the Kansas plaintiffs and weigh against class certification: (1) the named plaintiffs lack standing to assert claims for injunctive and declaratory relief and are inadequate class representatives, O’Shea v. Littleton,
The court addressed and rejected FedEx Ground’s challenges to certification of a class with respect to the plaintiffs’ equitable claims in its ruling on the Tennessee plaintiffs’ motion for class certification, and those challenges are no more persuasive in this case. FedEx Ground’s arguments with respect to the need for extrinsic evidence and individualized analysis are similar to those raised and rejected by the court in numerous other cases (including New Jersey, Tennessee, and Wisconsin) and are equally unpersuasive here.
FedEx Ground argues that the right to control is but one factor to be considered in determining employment status under Indiana law, “on par” with intent of the parties, and the extent of control, intent, and other fact-intensive factors (such as length of employment, kind of occupation, and who supplies the instrumentalities, tools, and place of work) can’t be resolved by reference to the Operating Agreement alone. Mortgage Consultants v. Mahaney,
Whether one acts as an employee or an independent contractor generally is a question of fact. Moberly v. Day,
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools,
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
While no single factor is dispositive, the right to control is the most important factor and is given the greatest weight in determining employment status. Moberly v. Day,
In Moberly and Reich, two of the eases upon which FedEx Ground relies, there was no employment contract or formal аgreement, so it was necessary to consider other evidence in determining liability. But when a formal contract exists, as it does in this case, the right of control and other relevant factors pertaining to employment status often can best be determined by the contract’s terms. See GKN Co. v. Magness,
Mortgage Consultants v. Mahaney,
The court grants the Indiana plaintiffs’ motion for class certification with respect to their claims for compensatory damages under Indiana’s wage payment statutes, rescission, and declaratory and injunctive relief.
Iowa
Iowa plaintiffs Tim Johnson and Aaron Ver Steeg, former FedEx Ground pickup and delivery drivers dispatched out of terminals in Iowa, seek certification of a statewide Iowa class under Federal Rule of Civil Procedure 23(b)(2) and (b)(3) to pursue claims for violations of Iowa’s wage deduction statute, Iowa Code § 91A.5, rescission, unjust enrichment and quantum meruit, and
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since August 16, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the State of Iowa.
Like their counterparts, the Iowa plaintiffs’ claims hinge on whether they are employees under state law—a determination the Iowa plaintiffs contend turns on whether FedEx Ground had the right to control the drivers’ work, not the actual control FedEx Ground exercised over some employees, Iowa Mut. Ins. Co. v. McCarthy,
In response, FedEx Ground reasserts its position that: (1) as former contractors, the named plaintiffs have no stake in the future conduct at which claims for injunctive and declaratory relief are targeted, and so lack standing to pursue those claims and are inadequate class representatives, O’Shea v. Littleton,
The court addressed and rejected FedEx Ground’s arguments about the plaintiffs’ standing and adequacy of representation in its ruling on the Tennessee plaintiffs’ motion for class certification, and the arguments are no more persuasive here.
Iowa courts apply a multi-factor test in determining whether an individual is an employee or an independent contractor, but the number of factors and the importance of those factors varies. See Iowa Mut. Ins. Co. v. McCarthy,
(1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) [the] right to control the work, and (5) the*482 identity of the employer as the authority in charge of the work or for whose benefit it is performed.
(1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of the business or distinct calling; (3) his employment of assistants, with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer.
Iowa Mut. Ins. Co. v. McCarthy,
As is true in South Dakota and most of the other states, a determination of employment status using the five-factor test identified in Caterpillar Tractor Co. v. Shook could be made solely on the basis of the Operating Agreement and generally applicable FedEx Ground policies. See LaFleur v. LaFleur,
Accordingly, the court denies the Iowa plaintiffs’ motion for class certification.
West Virginia
The West Virginia plaintiffs—two former Home Delivery drivers—bring claims for damages under the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101, et seq., and under W. VaCode § 21-5-1, et seq. involving wage deductions, and a claim for unjust enrichment. They also seek the Operating Agreement’s rescission, an accounting, and declaratory and injunctive relief. They seek certification of the following class under Rule 23(b)(2) for their declaratory and injunctive claims and under Rule 23(b)(3) for the remaining claims:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 25, 2001 to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of West Virginia.
The West Virginia plaintiffs’ arguments for class certification parallel those of the plaintiffs in most other states: (1) the class is sufficiently numerous, with 56 active drivers at the time of their motion; (2) the issue of their employment status under the Operating Agreement and FedEx Ground policies (employees or independent contractors) is common to the class; (3) the West Virginia plain
FedEx Ground responds with the same arguments it used in other states: (1) the plaintiffs, former single-work-area Home Delivery drivers from the same terminal (a) are situated differently than other putative class members, (b) lack standing to seek prospective relief, (c) cannot represent multiple work area drivers and have interests at odds with other single work area drivers, and (d) cannot represent Ground drivers or drivers from other terminals; (2) the class is too ill-defined because it requires individualized determination of who was “full-time”; (3) the class (which FedEx Ground calculates as including 73 former drivers, as well) is insufficiently numerous; (4) West Virginia law requires a driver-by-driver determination of status as employee or independent contractor, and (if the drivers are found to be employees) individual determination of thе state law claims; (5) class certification isn’t appropriate where contractor status is at issue; and (6) a class action is not a superior method of proceeding because (a) the West Virginia plaintiffs offer no trial plan, and (b) putative class members have a strong interest in controlling the litigation’s outcome. Apart from the provisions and impact of West Virginia law, FedEx Ground’s arguments against a West Virginia class are identical to those raised in other states.
This opinion (in tandem with the Kansas ruling) already has addressed the parties’ arguments to the extent they are not based on West Virginia law, and those discussions needn’t be repeated.
FedEx Ground bases its position on the proposition that, when determining whether a worker is an employee, West Virginia law gives the right to control strong, but not dispositive, weight and requires analysis of each of the four factors in the common law test under a ease’s individual facts. The West Virginia plaintiffs argue that the power of control—not the exercise of control or the other factors in the common law test—is the determinative inquiry.
The court’s reading of West Virginia law matches that of the West Virginia plaintiffs. West Virginia courts look to four factors in deciding the issue—selection and engagement of the servant, the method of compensation, the right to fire, and the power of control—but the power of control is “determinative.” Burless v. West Virginia Univ. Hosps., Inc.,
This Court has stated that “[t]o ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together.” Syl. Pt. 1, Myers,150 W.Va. at 563 ,148 S.E.2d at 665 . However, we have identified the major factor: “In determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done.” Syl. Pt. 2, Myers,150 W.Va. at 563 ,148 S.E.2d at 665 .
Mountain Lodge Ass’n v. Crum & Forster,
The Mountain Lodge court had no need to offer FedEx Ground’s hypothesized explana
The controlling factor in determining the status of a workman is whether the hiring party retains the right to control and supervise the work to be done. Whether the control is actually exercised is unimportant. The right to exercise control and supervision is the determinative element.
Myers v. Workmen’s Comp. Comm’r,
FedEx Ground cites C & H Taxi Co. v. Richardson,
Nor can the court find anything in the cited cases to persuade it that if the West Virginia plaintiffs prevail on their contention that the Operating Agreement and generally applicable FedEx Ground policies make the drivers employees, individual analysis will be required on the West Virginia plaintiffs’ state law claims.
One additional point needs to be addressed. In most of its class certification briefs, FedEx Ground argues that fully executed contracts cannot be rescinded. FedEx Ground offers but a single, hilariously imaginative citation of West Virginia authority for that proposition: Washington v. Burnett,
The doctrine, therefore, clearly dedueible from this case is, that whenever a contract in confederate currency has been executed between the parties, it will leave them to rest in the condition in which they have placed themselves.
Washington v. Burnett, 4 W.Va. at 95. The court doesn’t understand FedEx Ground to have paid any of its West Virginia drivers in Confederate money.
Whether the West Virginia drivers are employees or independent contractors under West Virginia law can be resolved solely by reference to the Operating Agreement and generally applicable FedEx Ground policies. That common issue predominates over all other issues. This holding, combined with
Virginia
The Virginia plaintiffs seek class certification under Federal Rule of Civil Procedure 23(b)(3) for their common law claims for rescission and quantum meruit recovery for services rendered and their claim for declaratory relief. The plaintiffs also ask the court to certify a class under Rule 23(b)(2) for their declaratory relief claims. They seek certification of the following class under both rules:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 3,1998, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Virginia.
The Virginia plaintiffs say their proposed class meets the numerosity requirement. Three hundred sixty-eight drivers currently are under contract with FedEx Ground, and even more drivers entered into agreements during the class period but no longer drive for FedEx Ground. As to commonality, the Virginia plaintiffs argue that the categorical determination of whether they are employees rather than independent contractors under Virginia law raises common questions of law and fact. The Virginia plaintiffs claim they are entitled to rescission and may recover compensation under the principle of quantum meruit because the standard form Operating Agreement violates Virginia’s public policy against knowingly coercing an individual to falsely declare employment status. VaCode Ann. § 58.1-485.1. Similarly, the Virginia plaintiffs seek a declaration that they have been misclassified as independent contractors under Virginia law. The named plaintiffs say they are members of the class and their claims are typical of the class they seek to represent. They also claim they are adequate class representatives and their counsel is experienced and competent.
The Virginia plaintiffs present the same arguments as most other plaintiffs in the docket with regard to the requirements of Rule 23(b)(3): they argue that common issues of law and fact predominate and class adjudication is superior to other available methods of resolution; they also argue their request for declaratory judgment supports certification of a class under Rule 23(b)(2).
FedEx Ground raises several arguments against class certification. First, FedEx Ground claims the Virginia named plaintiffs are inadequate representatives. FedEx Ground notes that both named plaintiffs worked as Home Delivery, rather than Ground, drivers, and FedEx Ground contends that Ground and Home Delivery drivers operate different delivery networks, interact with different management, and are subject to different Operating Agreements. Specifically, Home Delivery drivers have a proprietary interest by zip code, while Ground drivers are interested in entire geographic regions, leaving large areas in which no Home Delivery driver has a proprietary interest. Home Delivery drivers don’t participate in the Flex Program, and Ground drivers don’t experience driver audits. FedEx Ground also maintains the named plaintiffs are inadequate because both are single area contractors who can’t represent the interests of multiple area contractors, whose business differs from that of a single area contractor in terms of investment in the business, hiring of employees, and ability to profit. The court addressed a nearly identical objection made by FedEx Ground to the Alabama class certification, finding that the differences between Ground and Home Delivery drivers and between single work area and multiple work area contractors are not so significant as to weigh against class certification. For the reasons previously stated, there is no reason to believe the named Virginia plaintiffs will not vigorously pursue their claims on behalf of the class as required by Rule 23(a)(4).
FedEx Ground also points to Richmond Newspapers, Inc. v. Gill,
Similarly, the parties’ written contract was not dispositive in McDonald v. Hampton Training Sch. for Nurses,
More recently, the Virginia Supreme Court reiterated “that there are abundant tests and criteria that can be used to determine whether the relationship between the individual and [the alleged employer] is that of an
While a determination of employment status could be made solely on the basis of the standard Operating Agreement, Virginia law requires a driver-by-driver examination in light of the circumstances of the particular case—-an examination that cannot be resolved on a class-wide basis. Under the Virginia standard, FedEx Ground must be allowed to present evidence of who sets the drivers’ schedules, ownership of equipment, and so on, which may necessitate the use of extrinsic evidence. The common question of whether the standard Operating Agreement provides FedEx Ground the right to control the work of its drivers does not predominate over other questions affecting members of the class within the meaning of Rule 23(b)(3). Given the role of extra-contractual evidence in determining employment status under Virginia law, certification of a class with respect to the plaintiffs’ claims under 23(b)(2) would also be improper. Accordingly, the court denies the Virginia plaintiffs’ motion for class certification.
Illinois
The named Illinois plaintiffs—former drivers for Ground and Home Delivery—bring claims for damages for violations of the Illinois Wage Act, 820 III. Comp. Stat. 115/1, et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 III. Comp. Stat. 505/1, et seq., and claims for rescission, declaratory judgment, and injunctive relief. They seek to certify a class under Rule 23(b)(2) for the declaratory and injunctive relief claims, and a class under Rule 23(b)(3) for their statutory and rescission claims. They seek to certify the following class under both rules:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 20, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Illinois.
The Illinois plaintiffs raise familiar arguments in support of their certification motion: the class is sufficiently numerous (443 active drivers when the motion was filed, with more former drivers); joinder is impractical; questions of law and fact (whether the Operating Agreement makes drivers employees or independent contractors) are common to the class and predominate over individual questions; the named plaintiffs’ claims are typical of absent class members because the named plaintiffs have suffered the same types of injury, and the named plaintiffs are adequate representatives; a class action is superior to other methods of resolution because it provides a single forum to determine the drivers’ status, makes resolution feasible for those with small claims, and protects drivers who might fear retaliatory termination; and through use of the Operating Agreement, FedEx Ground has acted on grounds generally applicable to the class. Other than the state law-sensitive arguments, these arguments are identical to those raised in other cases in this docket.
FedEx Ground, too, raises familiar arguments—identical to those raised in other cases in this docket—-in opposition to class certification: as former drivers, the named plaintiffs lack standing to seek (and so cannot represent a class seeking) prospective relief and have differing interest from current drivers that would be in the class; as single work area drivers, the named plaintiffs are inadequate representatives for multiple work area drivers; Illinois law will require driver-by-driver analysis to determine whether any drivers are employees; class certification is
FedEx Ground also argues that named plaintiff Diane Gordon gave false interrogatory responses and erstwhile named plaintiff Michael Griffin turned out not to work for FedEx Ground. As with the false interrogatory answers given (and corrected) by the New Jersey plaintiffs, FedEx Ground’s argument about Ms. Gordon’s responses don’t persuade the court that the she can’t represent the class adequately. Mr. Griffin’s situation would be a matter of far more serious concern were Mr. Griffin seeking to represent the Illinois class (he apparently deceived even his attorney), but he is no longer a named plaintiff.
The Illinois class certification issue, then, turns on whether the drivers’ status as employees or independent contractors can be determined solely by reference to the Operating Agreement and FedEx Ground policies. The Illinois plaintiffs’ claims trigger two different tests for determining whether one is an employee.
The Illinois Wage Act contains its own definition of employee. It provides that “any individual permitted to work by an employer in an occupation” is an employee, and then creates an exemption to the Act’s coverage for any person who is free—both under the contract and in practice—from control and direction over the work’s performance, whose work is performed either outside the employer’s usual course of business or outside the employer’s places of business, and who is in an independently established business. 820 Ill. Comp. Stat. 115/2. Each element of the exemption must be present for the service provider to be an independent contractor for purpose of the Wage Act. Novakovic v. Samutin,
The Illinois plaintiffs’ other claims rely on the state’s common law definition of employee. “Common-law factors to consider in examining a worker’s potential status as an employee include ‘the amount of control and supervision, the right of discharge, the method of payment, the skill required in the work to be done, the source of tools, material or equipment, and the work schedule.’ Of these, control of the manner in which work is done is considered the most important.” Mitchell v. Department of Corr.,
In the context of other states, this opinion has noted that courts looking for either a right to control or actual exercise of control reasonably look beyond the “employment” agreement for actual control if the agreement doesn’t establish a sufficient right to control, but needn’t look further if the agreement creates a right to control. Such situations are among the Illinois cases the plaintiffs and FedEx Ground cited.
For example, In Roberson v. Industrial Comm’n,
But unlike the laws of several other states already discussed in this opinion, Illinois law seems to contemplate that even when the “employment” agreement vests enough control in the hiring party to create an employment relationship, the inquiry still must extend into the parties’ extracontractual relationship.
For example, in Wenholdt v. Industrial Comm’n,
Further, the structure of the Illinois Wage Act virtually requires a court to go beyond the terms of an agreement claimed to create an employment relationship. As already noted, the Wage Act creates something akin to a presumption of employment, see Adams v. Catrambone,
Illinois law poses questions upon which FedEx Ground must be allowed to present driver-by-driver evidence. When the inquiry broadens beyond whether the right to control is established in the FedEx Ground Operating Agreement, analysis under Illinois law might deem some, but not all, drivers to be employees. Or it may deem some, but not all, drivers to be employees under the statutory test that governs the Wage Act claim but not under the common law test that covers the Consumer Fraud Act and rescission claims.
Florida
The Florida plaintiffs seek class certification under Federal Rule of Civil Procedure 23(b)(3) of their claims for actual damages for violation of the Florida Deceptive and Unfair Trade Practices Act, rescission of the standard Operating Agreement, and declaratory relief. They further seek certification of a class under Rule 23(b)(2) for injunctive relief under the Trade Practices Act and declaratory judgment. They seek certification of the following class under both rules:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 28, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Florida.6
The Florida plaintiffs’ arguments in support of class certification are similar to those in most other states. The Florida plaintiffs assert that the proposed class is sufficiently numerous, as there are 744 current drivers in Florida, not including additional proposed class members who drove in Florida during the class period but have since left. They further contend the issue of their employment status presents questions of law and fact common to the class under each of their theories of recovery, namely: rescission, declaratory and injunctive relief, and actual damages under the Trade Practices Act. The named plaintiffs say their claims are typical of the absent class whom they seek to represent, and they are adequate class representatives.
The Florida plaintiffs also present the same arguments as most other plaintiffs in the docket with regard to the requirements of Rule 23(b)(3), maintaining that common issues of law and fact predominate over other issues and class adjudication is superior to other available methods of resolution of the Florida drivers’ claims. They argue their request for declaratory judgment and injunctive relief under the Trade Practices Act supports certification of a class under Rule 23(b)(2).
In response, FedEx Ground argues that the plaintiffs’ Trade Practices Act claims raise issues that will require individualized evidence. Specifically, the Florida plaintiffs allege that FedEx Ground classified its drivers as independent contractors in the standard Operating Agreement, but treated them as employees, constituting deceptive or unfair trade practices as defined by the Trade Practices Act. FedEx Ground contends the plaintiffs must show an actual injury to recover under the Trade Practices Act, which would require driver-specific evidence regarding whether FedEx Ground’s alleged miselassification deceived a particular driver. Relying on Hutson v. Rexall Sundown, Inc.,
The Florida plaintiffs correctly state that proof of reliance is not required under the Trade Practices Act. Davis v. Powertel, Inc.,
In contrast to Hutson, the Florida plaintiffs could not have read the standard Operating Agreement and made an appropriate conclusion regarding their true employment status. Further, the Davis court held that class actions for damages under the Trade Practices Act don’t require an allegation that individual members of the class relied on the allegedly unlawful practice.
FedEx Ground also reasserts its position that individualized evidence is needed to resolve independent contractor status. FedEx Ground argues that while Florida frames employment status in terms of the right to control, that factor isn’t dispositive, and the parties’ actual conduct is essential to determining whether, and to what extent, such a right exists. FedEx Ground also claims the Florida plaintiffs have alleged that many of the standard Operating Agreement’s terms are open to interpretation, requiring the court to examine the course of dealing between the parties as well as their intent.
Under Florida law, courts examine several criteria, as formulated by the Restatement (Second) of Agency § 220, to determine whether an individual is an employee or an independent contractor, including: “(1) the extent of the employer’s control over the details of the work; (2) whether the person employed is engaged in a distinct occupation or business; (3) the kind of occupation involved, and whether the work is done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer supplies the instrumentalities, tools, and the place of work; (6) the length of time the person is employed; and (7) whether the work is part of the employer’s regular business.” Goodwin v. Blu Murray Ins. Agency, Inc.,
Similar to Kansas, “it is the right to control, rather than actual control, that may be determinative” of employment status under Florida law. Villazon v. Prudential Health Care Plan, Inc.,
FedEx Ground’s argument that the court must look beyond the right to control to the other Restatement (Second) of Agency factors is unpersuasive. As noted when addressing the New Hampshire class certification motion, individual analysis of these factors is unnecessary because the Florida plaintiffs don’t contend that these factors make them employees, but, rather, maintain that employment status may be determined primarily based on the terms of the Operating Agreement. The additional Restatement factors cannot affect that contention.
Based on this standard, the extent of FedEx Ground’s control over its drivers depends on an analysis of the terms of the standard Operating Agreement, as well as FedEx Ground’s centralized practices and procedures that are systematically applicable to all of the Florida plaintiffs. The common questions regarding FedEx Ground’s right to control the work of its drivers predominates over other questions affecting members of the class within the meaning of Rule 23(b)(3). Likewise, certification of a class with respect to thе plaintiffs’ claims under 23(b)(2) would be proper. Accordingly, the Florida plaintiffs’ motion for class certification is granted.
Rhode Island
The Rhode Island plaintiffs (former and current drivers for Home Division) seek certification of the following class for their claims for rescission of the Operating Agreement (under Rule 23(b)(3)) and for declaratory relief (under both Rules 23(b)(2) and 23(b)(3)):
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 19, 1999, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Rhode Island.
The Rhode Island plaintiffs make no arguments for class certification (other than those dependent on state law) that have not already been discussed in this opinion. FedEx Ground argues the class is too vaguely defined (“full time”) and insufficiently numerous (FedEx Ground estimates the class would consist of 58 current and 66 former drivers) to satisfy Rule 23(a)(1); the named plaintiffs aren’t representative of the class because too few of the class want to be categorized as employees, none of the named plaintiffs drove for FedEx Ground rather than Home Division, and the interests of multiple work area drivers conflict with those of single work area drivers; the class action is not superior to individual litigation because the Rhode Island plaintiffs haven’t offered a trial plan and putative class members have a strong interest in controlling the litigation’s outcome; and the declaratory relief claim is unfit for class certification under Rule 23(b)(2). Each of those arguments has been found unpersuasive elsewhere in this opinion; none is more persuasive with respect to Rhode Island.
FedEx Ground cites Absi v. State Dep’t of Admin.,
For purposes of class certification, Rhode Island law compels driver-by-driver analysis no more than other states that employ the Restatement (Second) § 220 test, such as Arkansas, Kentucky, New Jersey, Maryland, New Hampshire, Oregon, Indiana, and Florida. For the reasons set forth in the discussion of the motions to certify classes of drivers in those states, as well as the other discussions in this opinion and the Kansas opinion rejecting FedEx Ground’s other objections to certification of a Rhode Island class, the court grants the Rhode Island plaintiffs motion for class certification.
C.
As noted throughout this opinion, in each class certification motion, the plaintiffs seek certification of a class under Rule 23(b)(2) for their claims for injunctive and declaratory relief (and in a few cases, for accounting), and certification of the same class under Rule 23(b)(3) for their damages claims and declaratory relief claims. In each instance (other than the California FMLA claim, as to which no class was certified), the claimed damages flow directly from FedEx Ground’s asserted liability to the class as a whole on the claims forming the basis for injunctive or declaratory relief. As such, the damages claims are incidental to the dominant claims for injunctive and declaratory relief, within the meaning of Allison v. Citgo Petroleum Corp.,
D.
Two more points must be made before setting forth the orders to be entered. First, FedEx Ground expressed concern in its briefing of these motions that once classes are certified, the plaintiffs will turn their focus from the Operating Agreement to anecdotal evidence and the experiences of individual drivers. The court boasts no ability to divine a party’s unexpressed intent, and so assumes the plaintiffs have no such intent, that (for example) mention in briefs that the individual plaintiffs believed themselves to be treated as employees was nothing more than fighting FedEx Ground’s class certification fire with fire.
Based on that assumption, the court has resolved these motions with the correlative assumption that the plaintiffs will not, at the summary judgment or trial stages, present evidence other than the Operating Agreements and generally applicable FedEx policies. If this correlative assumption is mistaken, several of today’s rulings must be reconsidered. The court affords the plaintiffs 20 days from the date of this order
Second, in case after case in which these rulings are made, the court has marveled at the elasticity of the holdings in the cases FedEx Ground cited for various propositions. Today’s opinion sets forth several of the most remarkable examples. Based on this experience of reviewing 40 pages of FedEx Ground briefs in each of 29 cases, the court urges whatever counsel signs future FedEx Ground briefs to carefully read both the authorities cited in those briefs and Rule 11 of the Federal Rules of Civil Procedure.
E.
For the foregoing reasons, the court ORDERS as follows:
1. In Cause No. 3:05-CV-600 [Tennessee], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 599] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for violations of Tennessee’s Consumer Protection Act of 1977 and seek an accounting, rescission, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 22, 1999, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Tennessee.
2. In Cause No. 3:06-CV-393 [Montana], the court DENIES the plaintiffs’ motion for class certification [doc. # 600].
3. In Cause No. 3:05-CV-593 [Mississippi], the court DENIES the plaintiffs’ motion for class certification [doc. # 598].
4. In Cause No. 3:06-CV-209 [Arkansas], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 603] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for violations of Arkansas’s overtime statute and asserts claims for fraud, rescission, unjust enrichment, and declaratory judgment:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since January 17, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Arkansas.
5. In Cause No. 3:05-CV-666 [Kentucky], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 602] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for violations of Kentucky’s wage deduction statute, rescission and unjust enrichment, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 13, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal located in Kentucky or provide(d) pick-up and delivery services within Kentucky.
6. In Cause No. 3:05-CV-540 [Texas], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 601] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for rescission and declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment ab*495 sences) since March 6, 2001 to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Texas.
7. In Cause No. 3:05-CV-601 [Wisconsin], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 582] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for wage payment statute, rescission, and declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since August 18, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Wisconsin.
8. In Cause No. 3:06-CV-428 [Aabama], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 583] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for rescission, unjust enrichment, and declaratory and injunctive relief:
All persons who: 1) entered or will enter-into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 11, 2000, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Alabama.
9. In Cause No. 3:05-CV-538 [New York], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 548] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for New York’s wage statutes and unlawfulness of the Operating Agreement:
All persons who: 1) entered or "will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since October 27, 1998, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New York.
10. In Cause No. 3:05-CV-531 [Massachusetts], the court DENIES the plaintiffs’ motion for class certification [doc. # 553 and 563 (corrected version) ].
11. In Cause No. 3:05-CV-528 [California], the court GRANTS IN PART AND DENIES IN PART the plaintiffs’ motion for class certification [doc. #547 and 561 (corrected version) ] as follows:
a. the court DENIES the motion to the extent it seeks to certify a class under the Family Medical Leave Act;
b. the court certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims under California law:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since November 17, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of California.
c. the court certifies the following subclass under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for overtime:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a
12. In Cause No. 3:05-CV-595 [New Jersey], the court GRANTS IN PART the plaintiffs’ motion for class certification [doe. # 552] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims under New Jersey’s Wage Payment Law, N. J. Stat. Ann. § 34:11-4.1, et seq., and Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq., breach of the covenant of good faith and fair dealing within the Operating Agreement, rescission of the Operating Agreement, quantum meruit damages for services performed, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES) for the first time on or after May 19, 1999; 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 19, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New Jersey.
13. In Cause No. 3:06-CV-M85 [Maryland], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 546] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for violation of Maryland’s wage statutes, unjust enrichment, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 5, 2003, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Maryland.
14. In Cause No. 3:05-CV-532 [Michigan], the court DENIES the plaintiffs’ motion for class certification [doc. # 581].
15. In Cause No. 3:05-CV-533 [Minnesota], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 576] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims under Minnesota’s Illegal Deductions from Wages Law, Minn.Stat. § 181.79, subd. 1, Failure to Keep Records Law, Minn.Stat. § 177.30, and Consumer Fraud Act, Minn.Stat. § 325F.69, subd. 1, for rescission, quantum meruit, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 5, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Minnesota.
16. In Cause No. 3:05-CV-597 [Pennsylvania], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 579] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for injunctive and declaratory relief, damages for violation of the Pennsylvania Wage Payment and Collection Law, and for rescission:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 25, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3)*497 were dispatched out of a terminal in the commonwealth of Pennsylvania.
17. In Cause No. 3:05-CV-534 [New Hampshire], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 580] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for failure to pay overtime, 3 N.H. Rev. Stat. Ann. § 279:21 VII, and to provide meal breaks, 2 N.H. Rev. Stat. Ann. § 275:30-a, unauthorized deductions from compensation, 4 N.H. Rev. Stat. Ann. § 275:48, failure to reimburse expenses, 5 N.H. Rev. Stat. Ann. § 275:57, violation of the Unfair Business Practices Act, N.H. Rev. Stat. Ann. ch. 358-A, et seq., rescission, failure to reimburse employee expenses, and declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since April 27, 2002, to provide package pickup and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of New Hampshire.
18. In Cause No. 3:05-CV-668 [South Carolina], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 578] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for unlawful wage deductions, S.C. Code Ann. § 41-10-40, rescission and unjust enrichment, and declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 6, 2002, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of South Carolina.
19. In Cause No. 3:06-CV-337 [Missouri], the court DENIES the plaintiffs’ motion for class certification [doc. # 577].
20. In Cause No. 3:05-CV-596 [Oregon], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 557] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for illegal deductions from wages, Or.Rev.Stat. § 652.610, rescission, and declaratory relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 20, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Oregon.
21. In Cause No. 3:05-CV-539 [South Dakota], the court DENIES the plaintiffs’ motion for class certification [doe. # 555].
22. In Cause No. 3:05-CV-390 [Indiana], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 556] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for compensatory damages, IND. CODE §§ 22-2-4-4 and 22-2-6-1, et seq., rescission, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 28, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the State of Indiana.
23. In Cause No. 3:05-CV-652 [Iowa], the court DENIES the plaintiffs’ motion for class certification [doc. # 554].
Ml persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since September 25, 2001 to provide package pick-up and delivery services pursuant to thе Operating Agreement; and 3) were dispatched out of a terminal in the state of West Virginia.
25. In Cause No. 3:05-CV-541 [Virginia], the court DENIES the plaintiffs’ motion for class certification [doc. # 597].
26. In Cause No. 3:05-CV-529 [Illinois], the court DENIES the plaintiffs’ motion for class certification [doc. # 575].
27. In Cause No. 3:05-CV-664 [Florida], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. # 584] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for damages for violation of the Florida Deceptive and Unfair Trade Practices Act, rescission, declaratory and injunctive relief:
Ml persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 28, 2000, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Florida.
28. In Cause No. 3:05-CV-599 [Rhode Island], the court GRANTS IN PART the plaintiffs’ motion for class certification [doc. #596] and certifies the following 163 class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs’ claims for rescission and declaratory relief:
Ml persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since May 19, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Rhode Island.
SO ORDERED.
ORDER ON MOTION FOR CLARIFICATION
On April 1, 2008, the plaintiffs asked the court for clarification of its March 25, 2008 order granting in part motions for class certification under Federal Rule of Civil Procedure 23(b)(2). As the plaintiffs note, the March 25 order referred to the court’s opinion on the Kansas plaintiffs’ motion for class certification, certifying the plaintiffs’ state law claims, as well as a nationwide ERISA class, under Rule 23(b)(3). The court finds no reason justifying the inconsistency between the Kansas opinion and the March 25 order, and accordingly, GRANTS the plaintiffs’ motion for clarification [Doc. No. 1130], finding that certification of the claims at issue in the March 25 order are more appropriate under Rule 23(b)(3).
SO ORDERED.
Notes
. Mississippi courts apply the following tests: "Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.” Richardson v. APAC-Mississippi,
. FedEx Ground begins its fourth objection by stating that Arkansas courts look to control based on the “agreement of the parties.” FedEx Ground then states that since the plaintiff's theory of the case is that he signed a contract of adhesion, Mr. Harris is challenging that he and FedEx Ground, in fact, agreed to the terms in the Operating Agreement. FedEx Ground provides no legal support for this contention and doesn't elaborate further. Since the court's research has disclosed no basis for this objection, the court will not address it further.
. Even with respect to this case, FedEx Ground’s citation is disappointing. In arguing that Michigan courts look to actuality rather than contractual right to control, FedEx Ground quotes the Kidder court as saying, "(j]ust as we have held that control is but one factor to consider under the economic-reality test, so is the contract hut one factor” (emphasis provided by FedEx Ground). The quote is accurate, but the Kidder court was discussing the portion of the contract that disavowed any employer-employee relationship, not the contract's impact on the control analysis. See Kidder,
On a similar note, FedEx Ground accurately quotes Roostertail, Inc. v. Patti Page, Pattack, Inc.,
. The plaintiffs asserted a fraud claim on behalf of the class in their amended complaint, but didn’t include that claim in their motion for class certification or address it in their supporting and supplemental memoranda.
. The Iowa plaintiffs assert a claim of fraud on behalf of the class as their Second Cause of Action, but didn’t include that claim in the motion for class certification.
. The plaintiffs propose a class period that begins four years prior to the commencement of this lawsuit based on the statute of limitations applicable to their claims under the FDUTPA.