Britt Green Trucking Inc., et al v. FEDEX National LTL, INC.
Filing
155
ORDER: Plaintiffs Britt Green Trucking, Inc. and Lanny D. Whitson's Motion for Class Certification 134 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 11/15/2013. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRITT GREEN TRUCKING, INC.
and LANNY D. WHITSON,
individually and on behalf
of all others similarly
situated,
Plaintiffs,
v.
Case No. 8:09-cv-445-T-33TBM
FEDEX NATIONAL, LTL, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court for consideration of
Plaintiffs
Whitson’s
(Doc.
#
Britt
Green
Trucking,
(“Plaintiffs”)
134)
National,
LTL,
filed
Motion
on
Inc.
July
for
15,
(“FedEx”)
Inc.
and
Class
2013.
filed
Lanny
Certification
Defendant
a
D.
FedEx
response
in
opposition (Doc. # 137) on August 1, 2013. On August 14,
2013, Plaintiffs filed a reply memorandum in support of
their Motion. (Doc. # 140).
On October 21, 2013, Plaintiffs filed a supplemental
memorandum
Thereafter,
in
support
FedEx
of
filed
their
a
Motion.
response
in
(Doc.
#
146).
opposition
to
Plaintiffs’ supplemental memorandum on October 25, 2013.
(Doc. # 149).
Finally, on November 1, 2013, Plaintiffs
filed a reply in response to FedEx’s response in opposition
to Plaintiffs’ supplemental memorandum. (Doc. # 152). Upon
due
consideration
and
for
the
reasons
set
forth
below,
Plaintiffs’ Motion for Class Certification is denied.
I.
Factual Background
In August of 2006, FedEx took control of Watkins Motor
Lines,
an
interstate
motor
carrier
based
in
Lakeland,
Florida, which employed individuals and trucking companies
as independent contractors (“ICs”). (Doc. ## 48 at ¶¶ 9-10;
134
at
4;
137
acquisition,
Operating
Plaintiffs,
at
FedEx
2).
entered
Contracts
in
On
various
the
into
(“ELOCs”)
locations
date
of
Equipment
with
the
Lease
ICs,
throughout
Watkins
and
including
the
United
States. (Doc. ## 48 at ¶¶ 11-12; 134 at 4; 137 at 3).
The ELOCs utilized by FedEx described both the manner
in which FedEx would lease transportation equipment from
ICs
and
the
manner
in
which
ICs
would
provide
transportation services. (See Doc. # 48, Ex. A). The ELOCs
provided as follows:
[FedEx] desires to lease, on an as-needed basis,
transportation equipment it does not own from
[IC] and desires that [IC] provide transportation
services, as needed, for the transportation of
certain commodities provided by [FedEx] or its
2
customers; and [IC] desires to contract
[FedEx] to transport such commodities.
(Id. at 1).
with
The ELOCs further stated:
[FedEx] agrees to make commodities available to
[IC] for shipment, from time to time, although
this shall not be construed as an agreement by
[FedEx] to furnish any specific number or types
of loads or units, pounds, gallons, or any other
measurements of weight or volume, quantity, kind
or amount of freight, for transport by [IC] at
any particular time or place.
(Id. at ¶ 2). The ELOCs also required ICs to pay into an
escrow
fund
controlled
by
FedEx,
wear
FedEx
uniforms,
maintain their trucks with FedEx signs and permits, and
provide
written
transportation
notice
services
to
for
FedEx
other
before
carriers.
performing
(Id.
at
¶¶
6(e), 7, 12, 14).
The ELOCs provided several methods for termination of
the ELOC:
Either
Party
may
terminate
this
Operating
Contract (1) at any time, without cause, by
giving written notice [to] the other Party at
least thirty (30) days prior to the effective
termination date or (2) immediately and at any
time, by giving written notice to the other Party
in the event of a material breach of any
provision of this Operating Contract by such
other Party.
(Id. at 15(a)).
3
The ELOCs’ initial term ran through July 31, 2007,
with automatic renewal for successive annual terms. (Id.).
However,
in
August
of
2007,
FedEx
entered
into
revised
ELOCs with current ICs. (Doc. ## 137 at 3; 137-2; 137-3;
137-4). The revised ELOCs contained a three (3) day, rather
than thirty (30) day, written notice requirement in the
event of termination without a material breach. (Id.).
In
February
terminated
of
the
simultaneously
2007,
FedEx
contracts
withdrawing
allegedly
of
all
work
the
from
“unilaterally
Plaintiffs
by
[Plaintiffs].”
(Doc. ## 48 at ¶ 17; 134 at 8). According to Plaintiffs,
“[t]his occurred without any written notice whatsoever to
the Plaintiffs and the other line-haul ICs, let alone the
thirty days’ written notice required under each of their
ELOCs.” (Doc. ## 134 at 8; 134-8 at 69: 6-14; 134-9 at
25:19-23).
However,
FedEx
contends
that
in
February
of
2007, FedEx merely informed the ICs that “it appeared FedEx
may not have loads to offer the [ICs] on a regular basis;
however, FedEx was not terminating their ELOCs.” (Doc. #
137 at 5).
II.
Procedural History
This action arises from FedEx’s alleged termination of
Plaintiffs’ ELOCs without the required written notice of
4
termination. On November 19, 2008, Plaintiffs filed their
class action complaint against FedEx alleging three counts.
(Doc.
#
1).
Plaintiffs
filed
their
first
amended
class
action complaint on March 15, 2010, alleging the same three
counts. (Doc. # 48). Count I is a claim for breach of
contract for failure to abide by the thirty day notice
requirement. (Id. at 10). Count II alleges a violation of
the implied duty of good faith and fair dealing. (Id. at
12). Finally, Count III asserts a claim for a violation of
the Florida Deceptive and Unfair Trade Practices Act, Fla.
Stat. § 501.201. (Id. at 13).
Plaintiffs filed a motion for class certification on
March 12, 2010. (Doc. # 46). On March 29, 2011, this Court
denied Plaintiffs’ motion for class certification, finding
that Plaintiffs failed to meet the typicality requirement
of
Federal
Rule
of
Civil
Procedure
23(a)(3)
and
the
predominance requirement of 23(b)(3), which requires common
questions
of
law
or
fact
to
predominate
over
questions
affecting individual class members. (Doc. # 60).
On February 28, 2013, the Eleventh Circuit reversed
this Court’s denial of class certification and remanded the
case for further review. (Doc. # 116 at 9). Specifically,
the Eleventh Circuit stated, “Because the district court
5
based its denial of class certification on the parties’
oral communications without analyzing whether those oral
communications were indeed material to the issue of breach
of
contract
under
Florida
law,
[the
Eleventh
Circuit]
conclude[s] that the district court abused its discretion.”
(Id.).
Plaintiffs now move this Court to order, pursuant to
Federal Rule of Civil Procedure 23 and Local Rule 4.04,
that
this
action
may
proceed
as
a
class
action
with
Plaintiffs representing all persons defined as follows:
All persons and entities throughout the United
States operating as independent contractors (ICs)
with Equipment Lease and Operating Contracts
(ELOCs) who contracted to carry freight for FedEx
National LTL, Inc. (FedEx) and whose ELOCs were
terminated by FedEx without 30 days' written
notice.
(Doc. # 134 at 2).
III. Legal Standard
A district court has broad discretion in determining
whether
to
certify
a
class.
Washington
v.
Brown
&
Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.
1992); Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir.
1985).
As
explained
Pharmaceuticals,
Inc.,
in
350
Valley
F.3d
6
Drug
Co.
1181,
1187
v.
Geneva
(11th
Cir.
2003), Federal Rule of Civil Procedure 23
“establishes the
legal roadmap courts must follow when determining whether
class certification is appropriate.”
Under Rule 23(a), a
class may be certified only if:
(1)
the class is so numerous that joinder
of all members is impracticable;
(2)
there are questions
common to the class;
(3)
the
claims
or
defenses
of
the
representative parties are typical of
the claims or defenses of the class;
and
(4)
the representative parties will fairly
and adequately protect the interests of
the class.
Fed. R. Civ. P. 23(a).
the
propriety
of
of
law
or
fact
The burden of proof to establish
class
certification
rests
with
the
advocate of the class, and failure to establish any one of
the
four
Rule
alternative
23(a)
factors
requirements
of
and
Rule
at
least
23(b)
one
precludes
of
the
class
certification.1 Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 613-14 (1997).
1
Plaintiffs seek certification under Rule 23(b)(3).
(Doc. # 134 at 19). Subsection (3) is satisfied if “the
court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to
other
available
methods
for
fairly
and
efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
7
This Court must conduct a rigorous analysis of the
Rule 23 prerequisites before certifying a class. Gen. Tel.
Co.
of
the
S.W.
v.
Falcon,
457
U.S.
147,
161
(1982).
“Although the trial court should not determine the merits
of the plaintiffs’ claim at the class certification stage,
the trial court can and should consider the merits of the
case
to
the
degree
necessary
to
determine
whether
the
requirements of Rule 23 will be satisfied.” Valley Drug
Co., 350 F.3d at 1188, n.15; see also Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 (1978)(“The class determination
generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff’s cause
of action. . . . The more complex determinations required
in
Rule
23(b)(3)
entanglement
with
class
the
actions
entail
even
merits.”)(internal
greater
citations
omitted).
IV.
Analysis
A.
Rule 23(a) Requirements
Before a class can be certified through one of the
provisions of Rule 23(b), it must first satisfy several
prerequisites:
(1)
numerosity;
(2)
commonality;
typicality; and (4) adequate representation.
8
(3)
See Buford v.
H
&
R
Block,
Inc.,
168
F.R.D.
340,
347
(S.D.
Ga.
1996)(quoting Fed. R. Civ. P. 23(a)).
1.
Numerosity
Federal Rule of Civil Procedure 23(a)(1) requires that
the class be “so numerous that joinder of all members is
impracticable.”
Fed.
R.
Civ.
P.
23(a)(1).
While
“mere
allegations of numerosity are insufficient,” Fed. R. Civ.
P.
23(a)(1)
imposes
a
“generally
low
hurdle,”
and
“a
plaintiff need not show the precise number of members in
the class.” Manno v. Healthcare Revenue Recovery Grp., LLC,
289 F.R.D. 674, 684 (S.D. Fla. 2013); see Vega v. T-Mobile
USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009); Evans v.
U.S.
Pipe
&
Foundry
1983)(explaining
required
to
Co.,
that
the
establish
the
696
F.2d
class
exact
925,
930
(11th
representative
number
in
the
is
Cir.
not
proposed
class). “Nevertheless, a plaintiff still bears the burden
of making some showing, affording the district court the
means to make a supported factual finding, that the class
actually
certified
meets
the
numerosity
requirement.”
Manno, 289 F.R.D. at 684 (quoting Vega, 564 F.3d at 1267).
Although
mere
numbers
are
not
dispositive,
the
Eleventh Circuit has indicated that less than twenty-one
class plaintiffs is inadequate, and more than forty class
9
plaintiffs is generally enough to satisfy the rule. Cox v.
Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
1986). The Court may also consider factors such as “the
geographic diversity of the class members, the nature of
the action, the size of each plaintiff’s claim, judicial
economy
and
the
inconvenience
of
trying
individual
lawsuits, and the ability of the individual class members
to
institute
individual
lawsuits.”
Walco
Inv.,
Inc.
v.
Thenen, 168 F.R.D. 315, 324 (S.D. Fla. 1996).
According
to
Plaintiffs,
“over
2,900
trucks
were
involved in the delivery of freight for [FedEx] at the time
it took over Watkins’ operations.” (Doc. # 48 at ¶ 20).
Plaintiffs submit that “[b]ased on the discovery conducted
to date, [P]laintiffs have identified for certain at least
244 ICs that meet the criterion set forth in the class
definition[:] [n]one of these ICs were given written notice
prior to termination. . . .” (Doc. # 134 at 14).
FedEx contends that Plaintiffs have not satisfied the
numerosity
requirement
because
Plaintiffs:
(1)
“seek
to
subtly change the actual class to those whose ELOCs ended
for any reason, improperly shifting the burden to FedEx to
prove it did not terminate the ELOCs,” and (2) “seek to
artificially bolster the size of the class by making it a
10
National class without a factual basis.” (Doc. # 137 at
13).
Specifically,
FedEx
claims
that
Plaintiffs
have
derived their estimates from the production of ICs’ files
whose ELOCs were terminated between September of 2006 and
October
of
2007,
but
did
not
exclude
ICs
who:
“(a)
initiated the termination of their own ELOC, (b) had an
ELOC that required only three days’ notice of termination;
(c) received adequate notice; (d) were terminated outside
of
the
late
February,
early
March
time
frame
in
which
Plaintiffs’ ELOCs were terminated; or (e) who heard the
alleged misrepresentations.” (Id.).
Upon review, the Court finds that although some of the
244 potential class members identified by Plaintiffs may
ultimately not meet the class definition, the submission by
Plaintiff that at least 244 ICs meet the criterion set
forth in the class definition is sufficient to meet the
“generally low hurdle” of the numerosity requirement. See
Manno,
289
F.R.D.
at
684;
Vega,
564
F.3d
at
1267.
Furthermore, the Court finds that a potential class size of
244 ICs is sufficiently large for the Court to presume
joinder
is
impracticable.
See
Cox,
784
F.2d
at
1553.
Therefore, the Court finds that Plaintiffs have met their
burden of demonstrating the numerosity requirement.
11
2.
Commonality
Federal Rule of Civil Procedure 23(a)(2) requires that
there be “questions of law or fact common to the class.”
Fed.
R.
Civ.
P.
23(a)(2).
Commonality
pertains
to
the
characteristics of the group or class as a whole, unlike
typicality which refers to the individual characteristics
of the class representative as compared to those of the
class members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341,
1346 (11th Cir. 2001) (citing Prado-Steiman v. Bush, 221
F.3d 1266, 1279 (11th Cir. 2000)).
Commonality
“does
not
require
complete
identity
of
legal claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d
526,
532
(5th Cir.
1978).
satisfied
even
some
members.
Armstead v. Pingree, 629 F. Supp. 273, 280 (M.D.
with
In
fact,
factual
commonality
variations
can
among
be
class
Fla. 1986).
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
(2001),
the
requirement
rejecting
the
commonality.
complaint
Supreme
for
Court
class
use
Noting
literally
of
clarified
certification
generalized
that
“any
raises
by
questions
competently
common
commonality
specifically
to
establish
crafted
questions,”
focused the required discussion as follows:
12
the
the
class
Court
What matters to class certification . . . is not
the raising of common questions – even in droves
- but, rather the capacity of a classwide
proceeding to generate common answers apt to
drive
the
resolution
of
the
litigation.
Dissimilarities within the proposed class are
what have the potential to impede the generation
of common answers.
Id.
at
explained
2551
that
(internal
the
citation
“common
omitted).
contention”
The
Court
underpinning
a
finding of Rule 23(a)(2) “must be of such a nature that it
is capable of class wide resolution – which means that
determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims
in one stroke.” Id.
Plaintiffs argue that the commonality requirement is
satisfied because:
[T]here was nothing individual about FedEx’s
actions and inactions in terms of how it treated
each and every class member. FedEx contracted
with the ICs to move freight and maintained the
exact same relationship with each of them. The
terms and conditions of the [ELOCs] were the
same, the way that FedEx accounted for the
payments was the same, the way FedEx treated the
ICs was the same, and the absence of any written
notice of termination was the same. As a result
of FedEx’s failures, the [ELOCs] were breached in
the same manner and the class members each have
suffered the same types of injuries.
13
(Doc.
#
134
at
3).
According
to
Plaintiffs,
“[t]hese
allegations demonstrate that the members of the class were
all
aggrieved
by
a
common
course
of
conduct
–
FedEx’s
deceptive and unfair action in breaching all of the ICs’
ELOCs
by
failing
to
provide
any
written
notice
of
termination as set forth in the ELOCs and in accordance
with FedEx’s duty of good faith and fair dealing.” (Id. at
15).
Upon review of the record, the Court finds that there
are “questions of law or fact common to the class.”
questions
include,
but
are
not
limited
to:
(1)
These
whether
FedEx entered into an ELOC with the IC class member; (2)
whether the ELOC required FedEx to provide thirty days’
written
notice
of
termination;
and
(3)
whether
FedEx
provided the required written notice.
The Court finds that these questions are sufficient to
satisfy
the
commonality
requirement.
“These
[common
questions] are not simply convenient or collateral common
[questions].
case
and
Rather,
their
these
centrality
questions
and
are
central
commonality
to
the
support
the
policy objectives behind class certification.” Buford, 168
F.R.D. at 350. Therefore, Plaintiffs have met their burden
of demonstrating the commonality requirement.
14
3.
Typicality
Class certification also requires that the claims of
the class representatives be typical of those of the class.
See
Fed.
R.
typicality,
Civ.
P.
“there
23(a)(3).
be
claims
representative’s
must
a
or
In
order
to
nexus
between
defenses
and
establish
the
the
class
common
questions of fact or law which unite the class.” Kornberg
v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th
Cir.
1984).
claims
or
“A
sufficient
defenses
representative
arise
nexus
of
from
the
the
is
established
class
same
and
event
if
the
or
the
class
pattern
or
practice and are based on the same legal theory.” Id.
When the class representative’s injury is different
from
that
of
the
rest
of
the
class,
his
claim
is
not
typical and he cannot serve as the class representative.
Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001).
Moreover, when proof of the class representative’s claim
would
not
necessarily
prove
the
claims
of
the
proposed
class members, the class representative does not satisfy
the typicality requirement. Brooks v. Southern Bell Tel. &
Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990). “Typicality,
however, does not require identical claims or defenses.”
Kornberg, 741 F.2d at 1337.
“A factual variation will not
15
render a class representative’s claim atypical unless the
factual
position
of
the
representative
markedly
differs
from that of other members of the class.” Id.
FedEx argues that Plaintiffs’ claims are not typical
of the claims or defenses of the class as a whole for three
reasons. (See Doc. # 137). First, FedEx asserts that “an
examination of the individualized oral communications with
potential class members is necessary to refute Plaintiffs’
characterization
termination.”
of
(Id.
at
the
conversations
17-20).
as
Specifically,
an
oral
FedEx
notes
“Plaintiff [Britt Green Trucking, Inc.] admits that he was
told his [ELOC] was not being terminated, but that he would
not be receiving any loads, at least in the short term, and
that he could continue to operate under the terms of the
[ELOC]. . . . Accordingly, proof of [Britt Green Trucking,
Inc.’s] claim would not necessarily be the same as the
claims
of
the
rest
of
the
class
members.”
(Id.
at
17)(quoting Doc. # 60 at 9).
Second,
FedEx
contends
that
its
unique
defenses
–
waiver and estoppel – asserted against Plaintiffs and other
potential class members destroy typicality. (Doc. # 137 at
20-21). Finally, FedEx asserts Plaintiffs’ damages are not
typical because “each class member’s claim for lost profits
16
damages would be inherently individualized; and therefore,
not amenable to class treatment.” (Id. at 21-22).
This Court acknowledges FedEx’s contention that the
typicality element is not met because Plaintiffs may be
subject to unique defenses and individualized issues based
on their individual relationship with FedEx that differs
from that of members of the potential class. Particularly,
this Court acknowledges FedEx’s contention that this Court
will need to inquire into the oral communications between
FedEx and the various ICs. However, this Court finds that
those concerns are better addressed under the predominance
requirement of Fed. R. Civ. P. 23(b)(3). Therefore, for
purposes of the present analysis, the Court will presume
the typicality requirement to be satisfied.
4.
Adequate Representation by Class Representatives
The final requirement for class certification under
See Fed. R. Civ. P.
Rule 23(a) is adequate representation.
23(a)(4).
This
prerequisite
representatives
have
representative
class
representatives
prosecute
the
requires
common
interests
members
demonstrate
interests
of
and
that
the
that
with
requires
they
class
the
the
that
class
nonthe
will
vigorously
through
qualified
counsel. Piazza, 273 F.3d at 1346. Thus, the adequacy of
17
representation
analysis
involves
two
inquiries:
“(1)
whether any substantial conflicts of interest exist between
the
representatives
representatives
Valley
Drug
and
will
Co.,
the
class,
adequately
350
F.3d
and
(2)
prosecute
at
1189
whether
the
the
action.”
(quoting
In
re
HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460–61 (N.D.
Ala. 2003)). “The existence of minor conflicts alone will
not defeat a party’s claim to class certification.” Id.
Rather, “the conflict must be a fundamental one going to
the specific issues in controversy.” Id.
Here, FedEx does not indicate that any conflicts of
interest
exist
addition,
FedEx
Plaintiffs’
Plaintiffs
between
does
counsel
will
not
not
and
Plaintiffs
and
contest
there
is
adequately
no
class.
In
qualifications
the
the
of
indication
prosecute
this
that
action.
Therefore, this Court finds that Plaintiffs have met their
burden
of
demonstrating
the
adequacy
of
representation
requirement.
B.
In
Rule
Rule 23(b) Requirements
addition
23(a),
to
parties
satisfying
seeking
the
class
prerequisites
certification
of
must
satisfy at least one of the alternative requirements of
Rule 23(b):
18
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications
with respect to individual class members
that would establish incompatible standards
of conduct for the party opposing the class;
or
(B) adjudications with respect to individual
class members that, as a practical matter,
would be dispositive of the interests of the
other members not parties to the individual
adjudications or would substantially impair
or impede their ability to protect their
interests;
(2) the party opposing the class has acted or
refused to act on grounds that apply generally to
the class, so that final injunctive relief or
corresponding declaratory relief is appropriate
respecting the class as a whole; or
(3) the court finds that the questions of law or
fact common to class members predominate over any
questions affecting only individual members, and
that a class action is superior to other
available methods for fairly and efficiently
adjudicating
the
controversy.
The
matters
pertinent to these findings include:
(A)
the
class
members'
interests
in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by
or against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims
in the particular forum; and
19
(D) the likely difficulties in managing a
class action.
Fed.
R.
Civ.
P.
23(b).
In
their
Motion
for
Class
Certification, Plaintiffs seek certification under Fed. R.
Civ. P. 23(b)(3), and limit their discussion to such. (Doc.
# 134 at 19). As a result, the Court will likewise limit
its
analysis
to
the
application
of
Fed.
R.
Civ.
P.
23(b)(3).
For common issues to predominate, the plaintiff must
demonstrate that “the issues in the class action that are
subject to generalized proof, and thus applicable to the
class as whole, . . . predominate over those issues that
are subject to individualized proof.” Kerr v. City of West
Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989) (internal
quotations and citation omitted).
“If
‘after
plaintiffs
adjudication
must
still
of
introduce
the
a
classwide
great
issues,
deal
of
individualized proof or argue a number of individualized
legal points to establish most or all of the elements of
their individual claims, their claims are not suitable for
class
Health
certification
Sys.,
Inc.
under
v.
Rule
Humana
23(b)(3).’”
Military
Sacred
Healthcare
Heart
Servs.,
Inc., 601 F.3d 1159, 1170 (11th Cir. 2010)(quoting Klay v.
20
Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004), rev’d
on other grounds; see Perez v. Metabolife Int’l, Inc., 218
F.R.D.
262,
273
(S.D.
Fla.
2003)(declining
class
certification because “any efficiency gained by deciding
the common elements will be lost when separate trials are
required for each class member in order to determine each
member’s entitlement to the requested relief”).
“The predominance inquiry requires an examination of
‘the
claims,
substantive
defenses,
law,’.
resolution
of
the
individual
class
.
.
relevant
to
and
the
degree
assess
classwide
member’s
facts,
issues
claim
will
against
applicable
to
further
the
which
each
defendant.”
Babineau v. Fed. Express Corp., 576 F.3d 1183, 1191 (11th
Cir. 2009)(quoting Klay, 382 F.3d at 1254).
In this case, the Court finds that common issues of
law and fact do not predominate over questions affecting
individual class members. Instead, this Court finds that
the
adjudication
of
Plaintiffs’
claims
on
a
class-wide
basis would be consumed by individual factual inquiries and
individual application of the pertinent substantive law.
See
Babineau,
576
F.3d
at
1191-95
(affirming
district
court’s denial of class certification after deciding that
21
individualized questions were not suitable for class-wide
adjudication).
1.
Liability
In their Motion, Plaintiffs claim that the predominant
issue in this action “is whether FedEx breached the ELOCs
with
its
ICs
by
failing
to
provide
written
notice
of
termination as required under the [ELOCs].” (Doc. # 134 at
20). Under Florida law,2 the elements of breach of contract
are “(1) a valid contract; (2) a material breach; and (3)
damages.” Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.
2d 737, 740 (Fla. 5th DCA 2000)).
Plaintiffs submit that
“[t]he resolution of this overarching issue predominates
over any individual issues that may exist with respect to
the ICs.” (Doc. # 134 at 20).
However,
determining
would
be
into
the
this
FedEx’s
required
conduct
Court
finds
liability,
to
of
it
if
engage
in
each
IC
foreseeable
any,
the
fact
individualized
as
well
that
as
in
finder
inquiries
the
oral
communications between FedEx and the ICs to determine if
2
Both parties have provided this Court with ELOCs to
consider, all of which state: “Governing Law. This
Operating Contract shall be interpreted under the laws of
the State of Florida without regard to the conflict of laws
principles thereof.” (Doc. ## 48, Ex. A at ¶ 24; 134-5 at ¶
24; 134-6 at ¶ 24; 137-4, Ex. 7-10).
22
such “communications were indeed material to the issue of
breach of contract under Florida law.” (See Doc. # 116 at
9). Therefore, this Court finds class certification to be
inappropriate. See Cardiovascular Care of Sarasota, P.A. v.
Cardinal Health, Inc., No. 8:08-cv-1931-T-30TBM, 2009 WL
928321,
at
repeatedly
*6
(M.D.
held
inappropriate
Fla.
that
for
Apr.
breach
class
3,
of
2009)(“Courts
contract
certification
claims
where
.
.
.
have
are
they
involve individualized inquiries to determine liability and
damages.”).
a.
Valid Contract
This Court finds that the initial element – a valid
contract
–
would
easily
be
satisfied.
According
to
Plaintiffs, “FedEx has already produced all of [the ICs’
files],
which
discovery.”
contain
(Doc.
#
134
ELOCs,
at
20).
during
These
the
course
ELOCs
are
of
the
contracts between the ICs and FedEx which describe both the
manner in which FedEx would lease transportation equipment
from the ICs and the manner in which the ICs would provide
transportation services. (See Doc. # 48, Ex. A). FedEx does
not contest this point.
b.
Material Breach
23
Plaintiffs submit that only one body of evidence – the
ICs’ files, which contain the individual ELOCs - will be
necessary to prove this issue. (Doc. # 134 at 21).
“FedEx
has admitted, through both its deposition testimony and its
[a]nswer
to
the
[c]omplaint,
that
these
files
do
not
contain written termination notices provided to the ICs.”
(Id.
at
20).
“The
admitted
class-wide
failure
to
send
written notice of termination amounts to a per se material
breach.” (Id. at 18). However, in determining the issue of
material
breach,
this
Court
finds
that
the
fact
finder
would have to engage in a two-part inquiry.
First, the fact finder would have to determine whether
FedEx
terminated
the
relevant
ELOC,
and
therefore
was
required to provide written notice of termination. FedEx
provided this Court with the affidavit of Paul Leonard,3
wherein Leonard states:
Following the filing of this lawsuit, [FedEx]
performed a search for ELOCs with [ICs] that were
3
Mr.
Leonard
was
the
Business
Analyst
for
the
Contractor Affairs Department for Watkins prior to its
acquisition, and continued in this role at FedEx National,
LTL, Inc. from September 3, 2006, to March of 2007. (Doc. #
137-4 at ¶ 1). In March of 2007, Mr. Leonard became Manager
of the Contractor Affairs Department and continued in this
role until January 30, 2011, when it was merged into FedEx
Freight,
Inc.
(Id.).
He
is
currently
a
Purchase
Transportation Advisor for FedEx Freight. (Id.).
24
terminated by FedEx from September 3, 2006
through 2007. However, as kept in the usual
course of business, [FedEx’s] files do not
typically contain information regarding which
party terminated the ELOC, or the manner of
termination.
* * *
[FedEx] could only compile a list of [ICs’] files
which reflected cancellation of an ELOC during
the period of inquiry. When ELOCs are cancelled
by either party, the [IC] executes . . . [a]
Receipt of Equipment . . ., which is a receipt
for the return of his unit . . . [and the]
Transponder Device Transfer Form . . ., which
shows that he has returned FedEx’s transponder
device to FedEx.
* * *
Once [an IC] has executed the bottom half of the
Receipt, or the bottom half of the Receipt and
the Transfer Form . . ., then FedEx considers
that [IC’s] ELOC terminated. In that instance,
FedEx would not be required to notify that [IC]
that the ELOC was ending prior to the term of the
ELOC and that the automatic renewal would not
occur.
* * *
The list [FedEx] compiled reflected 244 [ICs]
that had ELOC cancellations during the period of
inquiry.
* * *
25
The 244 files were produced without prior review
for factors that might distinguish those [ICs]
from Plaintiffs’ proposed class. For example, the
244 files were produced regardless of:(a) whether
any such file contained evidence that the [IC]
initiated the termination; (b) whether the [IC]
was bound to an ELOC that required only three (3)
days
notice
of
termination;
(c)
whether
sufficient notice was provided; (d) whether the
termination
occurred
outside
of
the
late
February, early March time frame in which the
Plaintiffs’ ELOCs were cancelled; or (e) what
state the [IC] was in.
(Doc. # 137-4 at 3-4)(emphasis in original).
In addition, FedEx has provided the Court with written
correspondence
illustrating
between
that
individual
several
ICs
ICs
and
“initiated
the
FedEx
ELOC
termination.” (Doc. # 137-4 at ¶ 16). Therefore, according
to
Mr.
Leonard’s
affidavit,
FedEx
was
not
required
to
provide written notice of termination. (Id.).
Thus,
this
Court
finds
that
in
order
to
determine
whether FedEx “breached the ELOCs with its ICs by failing
to provide written notice of termination as required under
the [ELOCs],” the fact finder would first be required to
identify and segregate the ICs whose ELOCs were terminated
by
FedEx
versus
those
ICs
whose
ELOCs
ended
for
other
reasons. In making that determination, the fact finder may
26
have
to
inquire
into
oral
communications
between
the
individual IC and FedEx to determine if such communication
was material to the breach of contract issue under Florida
law. See Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267
So.
2d
853,
constitute
857
vital
a
(Fla.
or
4th
DCA
material
1972)(stating
breach
a
“[t]o
defendant’s
nonperformance must be such as to go to the essence of the
contract;
it
must
be
the
type
of
breach
that
would
discharge the injured party from further contractual duty
on his part.”).
Then, if the particular ELOC was found to have been
terminated
determine
notice
by
FedEx,
whether
of
the
FedEx
termination
to
fact
finder
provided
the
the
would
have
requisite
particular
IC.
to
written
FedEx
has
provided the Court with affidavits indicating that while
FedEx’s 2006 ELOCs contained a thirty day written notice
requirement, in August of 2007, FedEx entered into revised
contracts
with
ICs
that
contained
a
three
day
written
notice requirement. (Doc. ## 137-2; 137-3; 137-4). Thus, in
further determining whether FedEx “breached the ELOCs with
its ICs by failing to provide written notice of termination
as required under the [ELOCs],” the fact finder would have
to
inquire
as
to
whether
each
27
IC’s
particular
ELOC,
terminated by FedEx, was bound by the thirty day written
notice
requirement
or
the
three
day
written
notice
requirement.
Therefore,
the
determination
of
whether
Plaintiffs
have satisfied the second element of breach of contract –
material breach – would require individual inquiries into
the conduct of each particular IC and the communications
engaged in by FedEx and the particular IC. Regarding any
oral communications, as the Eleventh Circuit has indicated,
the fact finder would have to inquire as to whether the
“ICs
consented
written
to
a
termination
modification
notice,
such
of
that
the
[thirty]-day
oral
termination
without advanced notice would suffice, [and whether the]
modification was supported by consideration.” (See Doc. #
116 at 9).
c.
Damages
According to Plaintiffs, their economic expert, Dr.
Albert
Lee,
has
reviewed
and
analyzed
the
discovery
documents to prepare an economic model which will calculate
damages on a class wide basis. (Doc. # 134 at 21). This
model – using evidence common to the class – “calculate[s]
the number of miles that the class would have driven but
for FedEx’s termination.” (Doc. # 152 at 3). Dr. Lee then
28
converts
“the
total
miles
driven
into
class-wide
dollar
figures based on a historical ratio of net earnings to
miles
driven
specific
to
each
[IC].”
(Id.).
Plaintiffs
assert that this methodology has long been approved in the
Eleventh Circuit. (Doc. ## 140 at 8, 152 at 3)(citing In re
Terazosin Hydrochloride Antitrust Litig., 203 F.R.D. 551
(S.D. Fla. 2001); Pettway v. Am. Cast Iron Pipe Co., 681
F.2d 1259 (11th Cir. 1982)).
However, FedEx contends that each class member’s claim
for
damages
would
be
inherently
individualized
and
such
individualized inquiry would inevitably overwhelm questions
common to the class. (Doc. ## 137 at 28; 149 at 4). FedEx
submits
that
consideration
such
of
a
individual
number
of
inquiry
individual
would
require
factors,
which
include, but are not limited to: (1) whether ICs obtained
work with other carriers; (2) the level of compensation;
(3) which trucks remain operable; and (4) what incremental
costs
and
expenses
were
saved
by
not
issues
are
operating
their
trucks. (Doc. # 137 at 28).
“Individualized
likely
to
defeat
damages
predominance
‘where
of
course
damages
least
can
be
computed according to some formula, statistical analysis,
or other easy or essentially mechanical methods.’” Sacred
29
Heart, 601 F.3d at 1179 (quoting Klay, 382 F.3d at 1259-60
(“where damages can be computed according to some formula,
statistical
analysis,
mechanical
methods,
or
the
other
fact
easy
that
or
essentially
damages
must
be
calculated on an individual basis is no impediment to class
certification.”)).
However, even when damages can be computed according
to some formula, statistical analysis, or other easy or
essentially
mechanical
method,
the
relevant
inquiry
for
class certification purposes is still “whether questions of
liability to the class predominate over individual issues
relating to damages.” Sacred Heart, 61 F.3d at 1179; see
also
Comcast
Corp.
v.
Behrend,
133
S.
Ct.
1426,
1433
(2013)(finding plaintiff’s damages model did not establish
injury
and
damages
through
common
proof.
Instead,
individualized questions as to liability overwhelmed common
issues.);
Sikes
v.
Teleline,
Inc.,
281
F.3d
1350,
1366
(11th Cir. 2002), rev’d on other grounds (stating “[t]hese
claims will involve extensive individualized inquiries on
the issues of injury and damages – so much so that a class
action
is
not
sustainable.”);
Rutstein
v.
Avis
Rent-A-
Center Sys., Inc., 211 F.3d 1228, 1235, 1240 (declining to
certify
a
class
because
“most,
30
if
not
all,
of
the
plaintiffs’
claims
will
stand
or
fall
.
.
.
on
the
resolution of . . . highly case-specific factual issues”
and “liability for damages is a necessarily individualized
inquiry”).
The Court finds that even if Plaintiffs’ expert has
prepared an economic model that can calculate damages on a
class-wide basis, the individualized inquiry that will be
required to establish whether FedEx materially breached the
ELOC still predominates over common questions of law or
fact. See July v. Bd. of Sch. Comm’rs, 291 F.R.D. 653 (S.D.
Ala.
2013)(finding
predominate
in
that
light
of
common
the
questions
number
of
did
not
individualized
questions addressing both liability and damages.); LaBauve
v. Olin Corp., 231 F.R.D. 632, 678 (S.D. Ala. 2005)(stating
“[b]oth liability and damages determinations are chock full
of
individual-specific
inquiries.
Thus,
the
need
for
individualized damages calculations, when combined with the
numerous
liability
and
limitations
issues
requiring
plaintiff-by-plaintiff scrutiny, counsels strongly against
class certification pursuant to Rule 23(b)(3).”).
2.
Defenses
Moreover, this Court finds that in determining FedEx’s
liability, if any, the fact finder would have to inquire,
31
on
an
individual
defenses
asserted
basis,
by
as
to
FedEx
whether
bar
the
any
affirmative
claims
of
each
particular IC.
In the present case, FedEx has raised the affirmative
defenses of waiver and estoppel. (Doc. # 137 at 20). FedEx
contends
that
in
determining
whether
FedEx
breached
the
ELOCs with its ICs by failing to provide written notice of
termination as required under the ELOCs, and whether such
breach
is
barred
by
an
affirmative
defense,
the
“fact
finder would have to examine the oral conversations and
circumstances surrounding each termination to determine the
validity of FedEx’s waiver and estoppel defenses. . . .”
(Id. at 21).
Under Florida law, a party invoking the affirmative
defense of waiver must demonstrate: “(1) the existence at
the time of the waiver of a right, privilege, advantage, or
benefit which may be waived; (2) the actual or constructive
knowledge of the right; and (3) the intention to relinquish
the right.” Goodwin v. Blu Murray Ins. Agency, Inc., 939
So.
2d
1098,
1104
(Fla.
5th
DCA
2006).
“Waiver
may
be
implied by conduct, but that conduct must make out a clear
case.” Id. Furthermore, a party invoking the affirmative
defense
of
estoppel
must
demonstrate:
32
“(1)
the
party
against
whom
the
estoppel
is
sought
must
have
made
a
representation about a material fact that is contrary to a
position it later asserts; (2) the party claiming estoppel
must have relied on that representation; and (3) the party
seeking
estoppel
must
have
changed
his
position
to
his
detriment based on the representation and his reliance on
it.” Winans v. Weber, 979 So. 2d 269, 274-75 (Fla. 2d DCA
2007)(citing Watson Clinic LLP v. Verzosa, 816 So. 2d 832,
834 (Fla. 2d DCA 2002)).
Upon consideration, the Court finds that in order to
determine whether FedEx “breached the ELOCs with its ICs by
failing
to
provide
written
notice
of
termination
as
required under the [ELOCs],” the fact finder would have to
conduct
individual
inquiries
to
determine
whether
any
viable contractual defenses exist for each particular IC.
See
Vega, 564 F.3d at 1274 (recognizing that where the
defendant “proffer[s] individualized and varying evidence
to defend against claims of individual class members . . .
significant questions concerning ultimate liability [may]
remain
for
many
class
members.
As
such,
the
common
questions [will] not predominate”); Sacred Heart, 601 F.3d
at
1176-77
(stating
that
“[e]ven
the
most
common
contractual questions - those arising, for example, from
33
the alleged breach of a form contract - do not guarantee
predominance
if
individualized
heavily
on
the
agreements.
The
extrinsic
interpretation
risk
of
of
evidence
the
voluminous
class
and
bears
members'
individualized
extrinsic proof runs particularly high where a defendant
raises substantial affirmative defenses to breach.”)
V.
Conclusion
Although this Court has presumed for purposes of the
present
analysis
typicality
that
Plaintiffs
requirement,
and
have
satisfied
satisfied
therefore
the
the
requirements of Fed. R. Civ. P. 23(a), this Court finds
that
Plaintiffs
requirement
of
have
Rule
not
satisfied
23(b)(3).
The
the
fact
predominance
finder
would
be
unable to determine whether FedEx “breached the ELOCs with
its ICs by failing to provide written notice of termination
as
required
under
the
individualized
inquiries
individualized
inquiries
questions of law and fact.
[ELOCs],”
without
for
particular
will
each
predominate
engaging
IC.
over
in
These
common
As a result, this Court denies
Plaintiffs’ Motion for Class Certification.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
34
Plaintiffs
Britt
Green
Trucking,
Inc.
and
Lanny
D.
Whitson's Motion for Class Certification (Doc. # 134) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of November, 2013.
Copies: All Counsel of Record
35
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