Juan Saravia v. Dynamex, Inc. et al

Filing 104

STIPULATION AND ORDER RE INCLUSION OF ON DEMAND DRIVERS IN CONDITIONALLY CERTIFIED COLLECTIVE ACTION re 103 filed by Juan Saravia Distribution of Notice due by 1/18/2016.. Signed by Judge Alsup on 1/7/16. (whalc1, COURT STAFF) (Filed on 1/7/2016)

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Todd M. Schneider, SBN 158253
[e-mail]
Joshua Konecky, SBN 182897
[e-mail]
Nathan Piller, SBN 300569
[e-mail]
SCHNEIDER WALLACE COTTRELL
KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone:
[phone]
Facsimile:
[phone]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JUAN SARAVIA, individually and on behalf of
all others similarly situated,

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Attorneys for Defendants

Attorneys for Plaintiffs

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Robert G. Hulteng, SBN 071293
[e-mail]
Aurelio J. Pérez, SBN 282135
[e-mail]
LITTLER MENDELSON PC
650 California Street, 20th Floor
San Francisco, CA 94108
Telephone:
[phone]
Facsimile:
[phone]

Case No. 3:14-cv-05003-WHA
STIPULATION AND [PROPOSED]
ORDER RE INCLUSION OF ONDEMAND DRIVERS IN
CONDITIONALLY CERTIFIED
COLLECTIVE ACTION PURSUANT TO
COURT ORDER [ECF 102]

Plaintiffs,
v.

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DYNAMEX, INC., et al.,
Defendants.

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STIP AND [PROPOSED] ORDER RE INCLUSION OF ON-DEMAND DRIVERS IN COLLECTIVE ACTION

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WHEREAS, the Court has ordered that notice of this collective action pursuant to 29 U.S.C. 216(b)

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of the Fair Labor Standards Act (FLSA) be distributed to delivery drivers who (1) personally made one or

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more deliveries in California, (2) signed an independent contractor agreement based on the 2011 and/or

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2012 template contract used by Dynamex, and (3) made their deliveries out of an operating location at

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which Dynamex has a physical presence, at any time between November 12, 2011 and the present.

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See ECF 86 at 17:15-18:9; ECF 100, at 1:28-2:4.

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WHEREAS, the parties thereafter had a disagreement regarding the scope of the conditionally

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certified collective with respect to the portion of the definition that limits the collective to individuals and

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entities “who make their deliveries out of an operating location at which Dynamex has a physical

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presence.” Specifically, the parties disagreed about how this definition relates to ‘on demand’ drivers.

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‘On demand’ drivers generally make deliveries from a variety of locations. Some ‘on demand’ drivers

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have made one or more deliveries from a Dynamex facility, while others have not. The parties’ dispute

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concerned the number of deliveries that would need to be made from a Dynamex facility for the ‘on

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demand’ driver to meet the requirement that the drivers “make their deliveries out of an operating location

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at which Dynamex has a physical presence.”

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WHEREAS, on December 8, 2015, the Court ordered the parties to meet and confer as to whether

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and the extent to which ‘on-demand’ drivers are part of the conditionally certified collective for purposes

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of receiving notice.

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WHEREAS, in December, 2015 and early January, 2016, the parties did meet and confer regarding

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the number of deliveries that an ‘on demand’ driver must have made from a Dynamex facility in order to

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fall within the definition of the conditionally certified collective. During the meet and confer, Defendant

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has started to compile data showing the number of on demand deliveries made from a Dynamex facility.

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The data Defendant has compiled to date records 309 drivers who made one or more on-demand deliveries

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out of a Dynamex facility and who were not included on previous iterations of the list of potential

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recipients of the notice of conditional certification. Out of these 309 drivers 174 made six or more

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deliveries out of an operating location at which Dynamex has a physical presence.”

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STIP AND [PROPOSED] ORDER RE INCLUSION OF ON-DEMAND DRIVERS IN COLLECTIVE ACTION

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WHEREAS, the parties have reached agreement that an ‘on-demand’ driver must have made six

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or more deliveries out of an operating location at which Dynamex has a physical presence to be part of

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the conditionally certified collective for purposes of receiving notice.

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WHEREAS, after due consideration, it is the judgment of the parties that this agreement is a fair
compromise.

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Accordingly, the parties stipulate to the following: any “on-demand” driver who 1) otherwise

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qualifies to receive notice of the collective action pursuant to the Court’s past Orders [ECF 86, 100] and,

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2) has made six (6) or more deliveries from an operating location at which Dynamex has a physical

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presence, shall also qualify for potential inclusion in the conditionally certified collective and shall receive

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notice and opportunity to join same in accordance with previous order of the Court [ECF 102].

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Respectfully submitted,
Dated: January 6, 2016

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By: /s/ Joshua G. Konecky
Joshua G. Konecky (SBN 182897)
SCHNEIDER WALLACE
COTTRELL KONECKY WOTKYNS LLP

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Dated: January 6, 2016
By: /s/ Aurelio Pérez
AURELIO J. PÉREZ
Attorney for Defendants
LITTLER MENDELSON, LLP

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STIP AND [PROPOSED] ORDER RE INCLUSION OF ON-DEMAND DRIVERS IN COLLECTIVE ACTION

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[PROPOSED] ORDER
The Court has received and considered the Parties’ Stipulation regarding the extent to which
“on-demand” drivers should be included in the conditionally certified collective that this Court
previously ordered. [ECF 86, 100].
The Parties’ agree that any “on-demand” driver who 1) otherwise qualifies to receive notice of
the collective action pursuant to the Court’s past Orders [ECF 86, 100] and, 2) has made six (6) or
more deliveries from an operating location at which Dynamex has a physical presence, shall also qualify
for potential inclusion in the conditionally certified collective and shall receive notice and opportunity to
join same in accordance with previous order of the Court [ECF 102].

Good cause shown, and in accordance with the stipulation of the Parties, the Court HEREBY
ORDERS as follows:
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Any “on-demand” driver who 1) otherwise qualifies to receive notice of the collective

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action pursuant to the Court’s past Orders [ECF 86, 100] and, 2) has made six (6) or more deliveries

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from an operating location at which Dynamex has a physical presence, shall also qualify for potential

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inclusion in the conditionally certified collective and shall receive notice and opportunity to join same in

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accordance with previous order of the Court [ECF 102].

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With notice to be distributed
by January 18, 2016.

IT IS SO ORDERED.

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January 7
Dated: __________________, 2016

___________________________________
THE HONORABLE WILLIAM ALSUP

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STIP AND [PROPOSED] ORDER RE INCLUSION OF ON-DEMAND DRIVERS IN COLLECTIVE ACTION