Scovil v. FedEx Ground Package Sys., Inc.

886 F.Supp.2d 45

Wayne SCOVIL, et al., Plaintiffs

v.FEDEX GROUND PACKAGE SYSTEM, INC. d/b/a FedEx Home Delivery, Defendant.

No. 1:10–cv–515–DBH.

United States District Court, D. Maine.

Aug. 13, 2012.

Order Denying Reconsideration Oct. 10, 2012.

Donald F. Fontaine, Law Office of Donald F. Fontaine, Portland, ME, Harold L. Lichten, Sara Smolik, Shannon E. Liss–Riordan, Lichten & Liss–Riordan, P.C., Boston, MA, for Plaintiffs.

Caroline H. Cochenour, James P. Abely, James C. Rehnquist, Goodwin Proctor, Boston, MA, Eric J. Uhl, Fisher & Phillips, LLP, Portland, ME, for Defendant.

DECISION AND ORDER ON PLAINTIFFS' MOTION TO CERTIFY CLASS AND DEFENDANT'S MOTION TO DECERTIFY COLLECTIVE ACTION

D. BROCK HORNBY, District Judge.

FedEx Ground Package System, Inc. (FXG ¹) drivers in Maine have brought this lawsuit against FXG. They challenge FXG's classification of them as independent contractors rather than as employees. I previously certified, conditionally, a federal Fair Labor Standards Act (FLSA) collective action against FXG. Discovery is complete.

The drivers have now requested certification of a class action for two Maine statutory claims. The drivers assert that as a result of the alleged misclassification, FXG violated two Maine statutes that apply to employees, one requiring overtime pay, 26 M.R.S.A. § 664, the other prohibiting certain deductions from employee paychecks, 26 M.R.S.A. § 629. In turn, FXG has requested that I decertify the federal FLSA collective action. I note that nowhere in the briefing or the oral argument is there any suggestion that there is a dispute about the number of hours worked or the deductions that were made (presumably all a matter of FXG financial records). After oral argument on July 20, 2012, and applying the rigorous analysis that the First Circuit requires, I Grant the motion to certify a class for the two state law claims. I also Deny FXG's motion to decertify the FLSA collective action.

Class Certification

The drivers request certification of the following class on their two Maine statutory claims:

All persons who executed a standard Operating Agreement ... with FXG and worked full time as delivery drivers in Maine under that agreement at any time between December 12, 2004 and December 12, 2010.

Pls.' Mot. and Mem. in Support of Class Certification at 3 (ECF No. 96).

Analysis

I apply the criteria of Fed.R.Civ.P. 23(a) and, because the class seeks damages, those of 23(b)(3). Of those criteria, FXG challenges four: numerosity, adequacy of representation by the named plaintiffs, predominance and superiority.

Numerosity

The class of Maine drivers exceeds 100.² Pls.' Mot and Mem. in Support of Class Certification at 10. That satisfies numerosity. I reject FXG's argument that the proceedings to date indicate lack of class interest because the participants in the FLSA opt-in collective action number only in the 20s. FedEx's Mem. of Law in Opp'n to Pls.' Mot for Class Certification at 27 (ECF No. 108). The standards are different—a much longer statute of limitations for the Maine claims, a restrictive weight requirement in the FLSA collective action for the trucks the drivers used, limitation to drivers with a single route in the FLSA collective action, and the attractions of temporary anonymity in a class action.

Commonality

FXG does not challenge this factor. The parties agree that liability is determined by whether the drivers are properly treated as employees or independent contractors. That satisfies commonality, even under the recent Wal–Mart decision. Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). As in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), here there is a standard document that drives the relationship, namely FXG's Operating Agreement that all drivers must sign and that defines them all as independent contractors. Under the predominance analysis below, I will deal with the differences that FXG highlights.

Typicality

FXG does not challenge this factor. The named plaintiffs are FXG drivers who signed the FXG Operating Agreement. Their claims are typical of those of the class of drivers in Maine that they seek to represent.

Adequacy of Representation

Lawyers: FXG does not challenge the adequacy of class counsel, but I assess it regardless because of Rule 23(g). I conclude that Harold Lichten of the firm of Lichten & Liss–Riordan, P.C. has extensive experience in class action litigation, employment litigation, and litigation against FXG. He has committed himself and his firm's resources to pursuing this lawsuit now for almost two years. Local counsel Donald F. Fontaine has over thirty-five years of experience representing individuals and plaintiff classes in labor and employment actions before the state and federal courts of Maine and the First Circuit. See e.g., Parker v. Wakelin, 123 F.3d 1 (1st Cir.1997); McCormick v. Festiva Dev. Group, LLC, Civ. No. 09–365–P–S, 2010 WL 582218 (D.Me. Feb. 11, 2010); In re Wage Payment Litig., 759 A.2d 217 (Me.2000).

Named Plaintiffs: FXG challenges the adequacy of some of the named plaintiffs. Recently I reviewed the applicable factors in LaRocque v. TRS Recovery Services, Inc., 285 F.R.D. 139, 148–51, No. 2:11–cv–91–DBH, 2012 WL 2921191 *5–*6 (D.Me. July 17, 2012), and I will not repeat them here.

1. I reject the challenges to credibility of the named plaintiffs. What FXG asserts

are inconsistencies between statements and depositions are a matter of interpretation.

2. I also reject the challenges that are based upon asserted inconsistency between what a named plaintiff stated that FXG had the authority to do in monitoring, and his testimony about what he himself actually allowed FXG to do. The two are not necessarily inconsistent.

3. The plaintiffs' lawyer has assured me that the one named plaintiff's (Scovil's) failure to afford discovery was an oversight, now being remedied (his deposition was taken, but he did not provide answers to interrogatories.) Pls.' Reply in Support of Their Mot. for Class Certification at 14 n. 17 (ECF No. 119).

4. I do find one named plaintiff inadequate, however. William Preble testified not only that he knew nothing about the complaint and the lawsuit, but he also said that he believed that he was an independent contractor, not an employee, a statement contrary to the very premise of the lawsuit. Preble Dep. at 14–18 (ECF No. 108–2). The plaintiffs' lawyer also added at oral argument that Preble was a class member for only part of the class period because he was not a fulltime delivery driver while he was in Florida.

5. The remaining named plaintiffs have participated in discovery, are sufficiently familiar with the facts of the case, have suffered the same injuries, seek the same relief for themselves as they do for all members of the putative class and there are no alleged conflicts with the interests of the class members. I conclude that they can adequately represent the proposed class.

Predominance

The “central issue” in this case is whether the drivers are properly classified as independent contractors, as FXG's Operating Agreement says, rather than FXG employees. FedEx's Mem. of Law in Opp'n to Pls.' Mot. for Class Certification at 1 (ECF No. 108). That issue alone will determine liability.

Whether common issues predominate will depend upon Maine law, because the plaintiffs rely upon two Maine statutory provisions for liability. The predominance question therefore is what the plaintiffs must prove to establish liability under Maine law. Those two statutory provisions give their protection only to “employees.” One of them defines that term; the other does not.

Section 629, the prohibited deduction statute, has no definition for the term “employee,” and the parties have found no Law Court case that addresses who is an employee for purposes of this section. The plaintiffs say that employment status here should be determined by the “right to control,” which they also call the common law right to control test, Plaintiffs' Motion and Memorandum in Support of Class Certification at 17, 18; FXG says that Maine's “common law test” is pertinent, FedEx's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification at 6 n. 3.

For the overtime statute, section 664, there is a statutory definition in section 663 of both “employ” and “employee,” but neither party discusses these definitions.³ The plaintiffs argue that for section 664, the term “employee” should be determined by the “economic realities” test, based upon a reference to that test in Director of Bureau of Labor Standards v. Cormier, 527 A.2d 1297, 1299–1300 (Me.1987). But Cormier is hardly a definitive pronouncement. The Law Court there was dealing with the meaning of “employer,” not the defined term “employee.” It said, accurately, that there is no statutory definition for the term “employer.” Moreover, what the Law Court said—that in determining whether two entities were joint employers, “[t]he trial court committed no error in examining the economic realities of the Cormier-related corporate and partnership entities and determining based on that examination that those entities acted as one employer for purposes of enforcing section 664,” Cormier, 527 A.2d at 1300—is a slim reed upon which to conclude that the economic realities test determines the definition of employee, particularly in light of other cases that I discuss below.⁴ For its part, FXG says that the test for who is a section 664 employee “is unsettled,” FedEx's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification at 6 n. 3, but that, for purposes of its opposition to certification, it will accept the plaintiffs' proposal.

In order to decide the certification motion, I need to determine what factors will determine—at trial or on summary judgment—who is an employee under each of these two statutory provisions, because they provide...