Merrill v. Pathway Leasing LLC

          ORDER

          Kristen L. Mix, United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' unopposed Request for Written Order on Ruling Granting Pathway Defendants' Motion to Decertify [#303]^[1] (the “Motion for Written Ruling”); on Plaintiffs' Motion to Certify Order Granting Decertification [Dkt. 304] for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) [#306] (the “Motion to Certify Appeal”); and on Plaintiffs' Second Motion for Use of Permissive Joinder Standard for Collectivization, or in the Alternative, Motion for Conditional Certification of Collective Action-Liability Only [#307] (the “Motion to Certify Collectivization”). Defendants filed Responses [#319, #320] in opposition to the latter two Motions, and Plaintiffs filed Replies [#322, #323]. The Court has reviewed the pertinent briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion for Written Ruling [#303] is GRANTED, and the Motion to Certify Appeal [#306] and the Motion to Certify Collectivization [#307] are DENIED.

         A. The Motion for Written Ruling

         On February 21, 2019, the Court orally granted Defendants' Motion to Decertify 29 U.S.C. § 216(b) Collective Action [#275] (the “Motion to Decertify”) in this Fair Labor Standards Act (“FLSA”) case. See Minutes [#304]. At that hearing, the Court invited either party to request a written ruling on that motion in order to more fully explain the Court's reasoning (and, as noted by Plaintiffs, to provide a more concrete basis for an appeal). Plaintiffs subsequently filed the present Motion for Written Ruling [#303], which the Court grants as follows.

         1. Timing

         In their Response to the Motion to Decertify [#275], Plaintiffs strenuously argue that “[a]ny motion to decertify must be brought at the close of discovery and prior to trial” by citing to Thiessen v. General Electric Capital Corporation, 267 F.3d 1095, 1105 (10th Cir. 2011). See [#285] at 2; see also Id. (citing Lysyj v. Milner Distribution All., Inc., No. 13-cv-01930-RM-MJW, 2014 WL 273214, at *3 (D. Colo. Jan. 24, 2014) (“In the second stage, which comes at the conclusion of discovery . . ., the court . . . determine[s] whether the case can proceed as a class action.”); Boldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (“At the conclusion of discovery, the Court makes a second determination . . . .”)).

         Defendants correctly point out that neither Thiessen nor the two district court cases cited by Plaintiffs, Lysyj and Boldozier (which both explicitly rely on Thiessen), hold that a motion to decertify must be made at the close of discovery, or even prior to trial. Reply [#288] at 7. Defendants also point to a handful of federal courts and other legal authority which has addressed this issue. Id. at 4-5 (citing Chavez v. IBP, Inc., No. CV-01-5093-RHW, 2005 WL 6304840, at *2 (E.D. Wash. May 16, 2005) (noting in a post-bench trial ruling on a motion to decertify that a collective action under § 216(b) is “preliminary until final judgment is issued, and [is] subject to modification prior to a decision on the merits”); Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d 567, 571-72 (E.D. La. 2008) (holding in a post-bench trial ruling on a motion to decertify a collective action under § 216(b) that “further consideration of the certification issue is warranted in light of the more fully developed factual record presented at trial” and noting that the court has an “ongoing obligation to monitor the propriety of certification in light of factual developments”); Roussell v. Brinker Int'l, Inc., No. H-05-3733, 2008 WL 2714079, at *16 (S.D. Tex. July 9, 2008) (noting in a pre-trial ruling that the court could entertain a motion to decertify after trial if the evidence demonstrated that the plaintiffs were not similarly situated); Defs.' Exs. A-B [#288-1; #288-2]: Brown v. Dolgencorp, Inc., Civ. No. 7:02-cv-0673 (N.D. Ala. Aug. 7, 2006) (decertifying a collective action mid-trial); William F. Allen, Defending Employers In Complex Wage And Hour Litigation, Aspatore, 2012 WL 5900370, at *11 (2012) (stating that “[a] court may also decertify a collective action during or after trial”); William C. Jhaveri-Weeks, Austin Webbert, Class Actions Under Rule 23 and Collective Actions Under the Fair Labor Standards Act: Preventing the Conflation of Two Distinct Tools to Enforce the Wage Laws, 23 Geo. J. on Poverty L. & Pol'y 233, 245 n. 77 (2016) (“Defendants may also move for decertification at or after trial.”).

         While none of the legal authority provided by Defendants is binding, the Court finds it persuasive given that neither the parties nor the Court has found any case holding that a motion to decertify a collective action must be brought at the close of discovery and may not be brought post-trial. To be sure, such a motion made post-discovery, as opposed to post-trial, would certainly help streamline the proceedings in a collective action under many, if not most, circumstances, as Plaintiffs allude. Regardless, given the above non-binding authority, and in the absence of any legal authority directly to the contrary, the Court finds that Defendants' Motion to Decertify [#275] was timely filed.

         2. Decertification

         29 U.S.C. § 216(b) permits an FLSA claim to be “maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” The Court uses a two-step process to determine whether the plaintiffs are “similarly situated.” Thiessen v. Gen Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2011). As is relevant here, at the second step, “the trial court conducts a ‘stricter' analysis to decide whether the collective it initially approved is indeed composed of similarly-situated individuals.” Oldershaw v. DaVita HealthCare Partners, Inc., No. 15-cv-01964-MSK-NYW, 2019 WL 427650, at *2 (D. Colo. Feb. 4, 2019). The three major factors to be considered by the Court are: (1) “any disparate factual and employment settings among the individual plaintiffs;” (2) “the various defenses available to the defendant that might be individual as to each plaintiff;” and (iii) “‘fairness and procedural considerations'.” Id. (quoting Thiessen, 267 F.3d at 1103).

         a. Plaintiffs' Disparate Factual and Employment Settings

         Regarding the first factor, the Court is concerned about the individualized factual considerations that must be analyzed in reaching conclusions about damages. Plaintiffs' damages formula, as demonstrated by Plaintiffs' Trial Exhibit 136, involves three factors: (1) the number of hours worked by each Plaintiff, (2) the minimum wage, and (3) the amount actually paid each Plaintiff by Defendants. The formula takes the number of hours worked by each Plaintiff (1), multiples that by the minimum wage (2), and then subtracts the amount actually paid to each Plaintiff (3) to calculate the alleged amount of unpaid minimum wages owed to each Plaintiff. However, determination of two of these factors, (1) and (3), must be made on an individualized basis.

         First, the number of hours worked by each Plaintiff each week requires an individualized calculation unless the Court accepts Plaintiffs' position that each Plaintiff regularly worked 70 hours per week. However, the evidence presented at trial demonstrates the implausibility of this proposition. For example, as Defendants point out, the owner settlement statements^[2] show wide variances in the numbers of miles driven by each Plaintiff per week. See, e.g., Trial Ex. E at 80-81 (settlement statement for Anthony Dennis showing 581 miles driven for the January 1, 2016 settlement period); id. at 122-23 (settlement statement for Anthony Dennis showing 2, 950 miles driven for the April 8, 2016 settlement period); Trial Ex. H5 at 74-75 (settlement statement for Julian LaFranks showing 1, 021 miles driven for the July 1, 2016 settlement period); id. at 95-96 (settlement statement for Julian LaFranks showing 3, 130 miles driven for the September 16, 2016 settlement period); Trial Ex. U4 at 225-26 (settlement statement for Paula Horion showing 691 miles driven for the December 5, 2014 settlement period); id. at 255-56 (settlement statement for Paula Horion showing 4, 198 miles driven for the July 25, 2015 settlement period). The widely-varying number of miles driven, as reflected in the settlement statements, makes it impossible to conclude that each Plaintiff averaged 70 hours of work per week^[3] without examining the evidence as to each Plaintiff individually, including, for example whether low-mileage weeks were due to time when a Plaintiff's truck was under maintenance or repair or time that a Plaintiff took off from work.^[4]

         Further, the evidence overwhelmingly established that most of Plaintiffs' trucks needed maintenance and/or repair, and, depending on the precise circumstances surrounding the maintenance/repair, that time may not always be included in compensable weekly working time. See, e.g., Trial Tr. Vol. I [#276] at 199-200 (Becky Austin testifying that she would sometimes be present at the repair shop, sometimes be at a hotel, and sometimes be at home while truck repairs were underway); id. at 128-30, 133 (Frank Merrill testifying that he was not claiming time at home when the truck was in repair (although he would check in at least briefly every day) but that he was claiming time away from home when the truck was in repair); Trial Tr. Vol. II [#276] at 59-61 (Rodney Lacey testifying that, regardless of whether he was on the road or staying at home at night, he would be at the repair shop watching them work the entire time the truck was in the shop). Thus, the evidence varies widely regarding the amount of time each Plaintiff's vehicle spent in maintenance/repair and whether each Plaintiff waited while repairs were made (which may be compensable time) or waited at home (which may be non-compensable time).^[5] See, e.g., Browne v. P.A.M. Transport, Inc., No. 5:16-CV-5366, 2018 WL 5118449 (W.D. Ark. Oct. 19, 2018) (holding that all hours spent “on duty” are compensable, in the absence of agreement to the contrary to the extent not barred by regulation).

         In addition, the Plaintiff drivers admitted to taking time off of work, like most employees do in any typical job. See, e.g., Trial Tr. Vol. I [#276] at 199 (Becky Austin testifying that “everybody” takes time off from driving); Trial Tr. Vol. III [#278] (Craig Williams testifying that drivers could take time off when they wanted). Some drivers also conceded that they may not have worked 70 hours every week. See, e.g., Trial Tr. Vol. IV [#279] at 37 (Anthony Dennis stating that it was “possible” that he did not work 70 hours every single one of those weeks); id. at 83-84 (Tami Potirala stating that most weeks, at least, she worked 70 hours per week but could not confirm that for all weeks).

         Finally, the amount actually paid to Plaintiff drivers requires individualized considerations for some drivers who took advances on pay and did not include those amounts in their statements of the “amounts actually paid.” See, e.g., Trial Tr. Vol. I [#276] at 138-39. Thus, considerations regarding the cash advances that some Plaintiffs received must be made on an individual basis.

         The record citations provided above are not comprehensive; rather, they merely illustrate the disparate factual circumstances of each Plaintiff based on the evidence before the Court. In short, given consideration of the settlement statements, the records regarding number of miles driven, issues surrounding where each Plaintiff spent time while a vehicle was in repair, cash advances, and time off, the Court finds that there are numerous individualized factual considerations that must be analyzed in reaching the damages determination, and therefore that this factor supports decertification.

         b. Defendants' Individualized Defenses

         Regarding the second factor, Defendants first direct the Court's attention to Blair v. TransAm Trucking, Inc., 309 F.Supp.3d 977, 1011 n.236 (D. Kan. 2018), an FLSA case in which the leased-truck drivers were paid via settlement statements, as occurred here. With respect to this factor, the court held that the defendant was “entitled to defend against each claim individually” by providing “‘week-by-week, driver-by-driver' evidence” on whether each plaintiff received the minimum wage for each week. Id. at 1011-12. Because this type of evidence could not “be offered on a class-wide basis, ” the court there found that this factor “weigh[ed] in favor of decertification.” Id. at 1012.

         Defendants also cite Green v. Harbor Freight Tools USA, Inc., 888 F.Supp.2d 1088, 1103-04 (D. Kan. 2012), in which the defendant pointed to evidence “calling into question the credibility of Plaintiffs' claims, including Plaintiffs' . . . contradictory testimony and sworn discovery responses.” In part because of this, the court in Harbor Freight found that the individualized defenses for each opt-in plaintiff weighed against continued certification. In Scott v. Raudin McCormick, Inc., No. 08-4045-EFM, 2010 WL 5093650, at *4 (D. Kan. Dec. 8, 2010), the court held: “Because the analysis regarding class eligibility and damages are highly fact-specific and individualized to each Plaintiff driver, Defendants' defenses as to each Plaintiff are similarly highly individualized. Defendants assert[ ] that a number of the Plaintiffs have claimed they either received no pay for overtime, some pay, or all pay to which they were entitled.”

         Defendants have presented evidence at trial that at least some Plaintiffs received statutory minimum wages for some settlement periods at issue, and that some Plaintiffs' testimony lacks credibility.^[6] Defendants are entitled to address these issues regarding each Plaintiff ...