Scantland et al v. Jeffry Knight, Inc. et al

Filing 201

ORDER denying 132 Motion to certify class. Signed by Judge Elizabeth A. Kovachevich on 9/29/2011. (Attachments: # 1 Main Document) (JM)

Case No. 8:09-CV-1985-T-17TBM

treats technicians as independent contractors. Plaintiffs contend Plaintiffs provided a
benefit to Defendant Knight by performing the work, that Defendant had knowledge of
the work, and accepted the benefit of it, and that Defendant did not pay Plaintiffs for the
work, either through non-payment for repair work or by taking deductions for
chargebacks, and from retainers.

C. Conversion

Under Florida law, conversion is defined as a wrongful taking of personal
property with intent to exercise an ownership which is inconsistent with the real owner's
right of possession.

King v. Saucier. 356 So.2d 930 (Fla. 2d DCA 1978). Plaintiffs

argue that the common question is whether the retention of unpaid wages, and the
retainer, was wrongful, based on the misclassification of the technicians, and whether
the technicians were employees under Florida law.

Defendant does not dispute that there are common questions of law or fact as to
the FDUTPA claims, the unjust enrichment claim or the conversion claim.

3. Typicality

Under Rule 23(a), "the claims or defenses of the representative parties [must be]

typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). "The key inquiry in
determining whether a proposed class has 'typicality' is whether the class
representative is part of the class and possesses the same interest and suffers the

same injury as the class members." Clausnitzer, 248 F.R.D. at 656 (citation omitted).
Typicality requires that the claims of the named representative bear the same essential
characteristics of the claims of the class at large. \j± The named representative's
claims need not be identical to class members' claims as long as they "arise out of the
same conduct and are grounded on the same legal theory." Jeld-Wen, 250 F.R.D. at

Case No. 8:09-CV-1985-T-17TBM

694. "The test for typicality, like commonality, is not demanding." kl (citation omitted).

Plaintiffs argue that Plaintiffs are members of the class they seek to represent,
that they performed the same work, were subject to the same types of damages, and
were subject to the same control over the manner in which they performed their
services.

Defendant argues that there are potential conflicts among Plaintiffs in the
proposed class. Defendant argues Plaintiffs who were engaged in quality assurance or

quality control have adverse interests to other class members. Where Plaintiffs are
seeking the return of monies that were the subject of "chargebacks" and payment for

time spent repairing their own work, the existence of a chargeback is an outcome of the
quality assurance function. Quality assurance or quality control technicians were
engaged to inspect other technicians' work and to determine whether the work was
done properly. Defendant argues that if a chargeback has been taken or if the quality
control technician who sets the chargeback in motion testifies that the work was

defective, the interests of the installing technicians is adverse to the interests of the

quality control technicians. Defendant argues that quality control technicians are not
appropriate representatives of, and/or members of, a class of installers, and vice versa.
Defendant argues that the claim of Plaintiff Michael Scantland is not typical.
Defendant argues that Plaintiff Michael Scantland has filed a worker's compensation

claim, alleging that he is entitled to benefits for an injury sustained while he was working
as a Knight contractor. Defendant further argues that Plaintiff Scantland has invoked
the Internal Revenue Service to conduct an investigation in to the relationship between

Knight and its contractors. Defendant argues that Knight was requested to furnish a list
of names, Social Security Numbers, addresses and telephone numbers of all workers
performing the same work as Plaintiff Scantland. Defendant argues that since some
individuals have not filed income tax returns, Plaintiff Scantland's request has placed
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him in a position where he brought unwelcome attention to the other Plaintiffs such that
Plaintiff Scantland's interests are adverse.

This issue is a disputed issue.

For the purpose of resolving this Motion, the

Court will assume that the typicality requirement is met.

3. Adequacy of Representation

Rule 23(a)(4) requires a showing that "the representative parties will fairly and

adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). The analysis
"encompasses two separate inquiries: (1) whether any substantial conflicts of interest
exist between the representatives and the class; and (2) whether the representatives

will adequately prosecute the action." Valley Drug Co. v. Geneva Pharmaceuticals. Inc..
350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted). In addition to looking at the

adequacy of the named representatives, the Court also must examine the adequacy of
the representatives' counsel. Dahlgen's Nursery v. E.I, du Pont de Nemours, No.
91-8709-CIV, 1994 WL 1251231, at "6-*7 (S.D .Fla. Oct.30, 1994). Counsel will be

deemed adequate if they are shown to be qualified, adequately financed, and possess
sufficient experience in the subject matter of the class action. Jjd, at *7.

Plaintiffs argue that they are typical of the class, making them adequate

representatives for all claims. Plaintiffs argue that counsel is competent class counsel,
with extensive experience handling wage and hour class actions. Plaintiffs argue that
the requirement of adequacy of representation is met.

As noted above, Defendant has raised an issue as to potential conflicts between

class representatives who have been quality control technicians, and as to conflicts
between Plaintiff Scantland and other members of the class. For the purpose of

resolving this Motion, the Court will assume that at least some of the named Plaintiffs
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Case No. 8:09-CV-1985-T-17TBM
have no conflict of interest.

C. Rule 23(b)

1. Predominance

In order to satisfy the predominance inquiry under Rule 23(b)(3), Plaintiffs need
not demonstrate that every question of law or fact is common to the class. See Jones v.

Jeld-Wen. Inc.. 250 F.R.D. 685 (S.D. Fla. 2008) ("Under Rule 23(b)(3) it is not
necessary that all questions of law or fact be common, but only that some questions are
common and that they predominate over the individual questions.") (quoting Klay v.

Humana. Inc.. 382 F.3d 1241, 1254 (11th Cir. 2004)). The predominance inquiry,
however, is much more stringent than Rule 23(a)(2)'s requirement of commonality. See
Id.; Jackson v. Motel 6 Multipurpose. Inc.. 130F.3d 999, 1005 (11th Cir.1997).

Plaintiffs argue that common questions of law and fact predominate. Plaintiffs
argue that the damage claims are susceptible to class adjudication because all are

based on Defendant's alleged deceptive and unfair practice of labeling the technicians
as independent contractors.

Defendant argues that, if prosecuted as a class action, this case will break down

into an unmanageable variety of individual class issues, the only common issue of law

or fact being the alleged misclassification of Plaintiffs. Defendants argue that common
issues will not predominate as to the FDUTPA, unjust enrichment, and conversion
claims.

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A. FDUTPA

Plaintiffs argue that the core of Plaintiffs' claim for damages under FDUTPA are
the issues of: 1) whether the technicians have been improperly classified as

independent contractors; 2) whether the misclassification constitutes an unfair,
unconscionable, or deceptive practice; and 3) whether this practice caused technicians

to suffer damages related to unpaid work for repairs, "chargebacks," and the loss of
retainers paid to Knight. Plaintiffs argue that these issues can be determined based on
common class-wide evidence.

Plaintiffs argue that individual issues will not predominate where there is a
central policy of misclassifying workers as independent contractors, that the workers
signed the same agreements establishing this classification, that the workers were
subject to the same management policies, and worked under similar management.
In Re FedEx Ground Package Svs.. 273 F.R.D. 424 (N.D. Ind. 2008).

The Court has examined the "Independent Contractor Services Agreement" at
issue. The Court notes the following provisions:

2. Work Assignments. To the extent that Knight decides
to utilize the services of Contractor, Knight shall (directly or
through the Company, at Knight's option provide to
Contractor a work order describing the location, providing
other relevant contact information, and describing the type of
work to be performed. Contractor may decline any work
assignments and is not required to maintain a set schedule.
Once Contractor has accepted one or more assignments,

including a day's worth of assignments, Contractor shall
timely complete said assignments pursuant to the terms and
conditions of this Agreement and may not thereafter refuse
to full complete the accepted assignments. The Contractor

agrees to perform specific work for the specific amounts set
forth in this Agreement.
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3. Performance. Contractor shall perform the work in a
timely and competent manner and all work shall be done in
a good and workmanlike manner. Contractor shall use its
best efforts to complete all work during regular business
hours. Contractor shall comply with all specifications of
Knight and the Company regarding the work. Contract shall
keep the area in which the work is being performed clean
and shall return the area to the condition it was in prior to
commencement of the work once the work is completed,
including the removal of any debris and excess materials.
The manner and means of performance of the work,
including technique, sequence, procedures, selection and
assignment of employees shall be subject to Contractor's
exclusive discretion, supervision and control. Contractor
may employ others to assist Contractor in performing the
work, in which case Contractor shall be solely responsible
for all wages, taxes, workers compensation, unemployment,

fringe benefits, and any other matters associated with its
employees. Knight shall be under no obligation to assign
any work to Contractor. Contractor indemnifies, agrees to
defend and holds Knight harmless from any damage, claim,
loss, fee or liability arising out of Contractor's failure to
satisfactorily complete the work.

8. Independent Contractor/No Agency. Contractor will
perform the work as an independent contractor of Knight,
and this Agreement will not be construed to create a

partnership, joint venture or employment relationship
between Contractor and Knight. Contractor will retain full
control over the manner in which it performs the work and
will not be entitled to workers' compensation,
unemployment, retirement, insurance or other benefits that
may upon occasion be afforded to employees of Knight.
Contractor shall have no authority to enter into any
agreements binding upon the Company, or to create any
other obligations on the part of Knight, and further agrees
that Contractor is in no way Knight's agent.
In In Re FedEx Ground Package Systems, supra, the Court distinguished between
Keith v. News & Sun Sentinel Co.. 667 So.2d 167 (Fla. 1995), in which the parties'
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written contract vested no right to control in the defendant, and the FedEx case, in
which the Florida plaintiffs argued that the standard Operating Agreement vested the

right to control in FedEx Ground as to make the drivers employees. Unlike the Keith
court, which looked to evidence of actual control because a sufficient right did not exist
in the contract, the FedEx court did not need to examine the parties' actual practice to
find a right to control.

To determine whether a relationship is that of employer-employee or contractorsubcontractor, in Keith v. News & Sun Sentinel. 667 So.2d 167, 171 (Fla.,1995), the
Florida Supreme Court held:

Hence, courts should initially look to the agreement between
the parties, if there is one, and honor that agreement, unless
other provisions of the agreement, or the parties' actual
practice, demonstrate that it is not a valid indicator of status.
In the event that there is no express agreement and the
intent of the parties cannot otherwise be determined, courts
must resort to a fact-specific analysis under the Restatement
based on the actual practice of the parties. Further, where
other provisions of an agreement, or the actual practice of
the parties, belie the creation of the status agreed to by the
parties, the actual practice and relationship of the parties
should control. See Cantor v. Cochran, 184 So.2d 173

(Fla.1966).

In FedEx Ground, it was not necessary for the court to make an individual analysis of
other factors in the actual practice of the parties, because the plaintiffs did not contend
that those factors made them employees, but rather that employment status could be
determined primarily on the terms of the Operating Agreement.

This case is the opposite of the situation as In Re FedEx Ground Package

System, Inc.. The independent contractor agreement, which is an integrated contract,
expressly provides that the parties to the Agreement understand that the Contractor's
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status is "independent contractor" and that the Contractor controls the manner and
means of performance of the work. The Court does not consider the requirement of
compliance with the technical specifications of Defendant and the Company to equate
to active supervision and control of the work. An individual analysis of the Restatement
factors in the actual practice of the parties would be required.

After consideration, the Court concludes that common questions of law or fact
would not predominate as to the FDUTPA claims.

B. Unjust Enrichment

Before the Court can grant relief on an equitable claim, the Court must examine

the particular circumstances and assure itself that, without a remedy, inequity would
result or persist. Where an individual analysis of the facts would be required as to any

express contracts entered into, and the circumstances surrounding each contract, to
determine the existence of a contract, or whether a contract implied in law arose, and

to consider any resulting inequity, common questions would not predominate over

individual questions. Veoa v. T-Mobile. Inc.. 564 F.3d 1256, 1274 (11th Cir. 2009).
C. Conversion

The Court finds that an examination of individualized proof will be required as to

each Plaintiff's bargaining relationship with Defendant, and the circumstances

surrounding the bargain, in determining whether any conversion occurred. The Court
finds that common questions would not predominate over individual questions.

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2. Superiority

The Court has concluded that individual questions of fact or law will predominate
over common issues. The Court therefore concludes that a class action is not superior
to other methods to efficiently resolve the controversies involved. Accordingly, it is

ORDERED that the Motion for Class Certification (Dkt. 132) is denied. The

Motion for Leave to File Reply (Dkt. 137) is denied as moot.

I^Jfa

DONE and ORDERED in Chambers in Tampa, Florida on this
September, 2011.

Copies to:
All parties and counsel of record

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