THOMPSON et al. v. K.R. DRENTH TRUCKING, INC. et al.

Filing 77

ENTRY ON PLAINTIFFS' MOTION TO RECONSIDER - Largely driven by the procedural posture of this case, the Court has resolved to GRANT Plaintiffs Motion for Reconsideration (Dkt. 69 ) and their underlying Motion for Conditional Certification (Dkt. 19 ). **SEE ENTRY**. Signed by Judge Tanya Walton Pratt on 6/15/2011. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON THOMPSON, MARK A. HAYDEN
On Behalf of Themselves and all Others similarly
Situated, WILLIAM E. BARNES, and
DALE C. DAVIS,
Plaintiff,
v.
K.R. DRENTH TRUCKING, INC., THOMAS J.
MANZKE, KENNETH S. DRENTH, STEVEN
RUCKERT, JOHN McGEE, and KENNETH
ANDRESEN,
Defendants.

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Case No. 1:10-cv-00135-TWP-DKL

ENTRY ON PLAINTIFFS’ MOTION TO RECONSIDER
This disputes arises out of allegations that Defendants (collectively, “KRD”) violated the
Fair Labor Standards Act (“FLSA”) by failing to pay a certain group of truck drivers
(“Plaintiffs”) overtime premiums. Plaintiffs sought conditional certification of the following
proposed collective action:
All present and former Non-Recyclable Drivers employed by [KRD] and any
subsidiary that has worked over 40 hours in a workweek on or after January 18,
2007.
(Dkt. 70 at 1; emphasis added). On February 11, 2011, the Court denied Plaintiffs’ Motion. In
doing so, the Court held that the Motor Carrier Act exemption applied to named Plaintiffs, Jason
Thompson (“Thompson”) and Mark Hayden (“Hayden”), thus rendering them ineligible for
overtime pay and unsuitable collective action representatives. Plaintiffs have now asked the
Court to reconsider its ruling.

“A motion for reconsideration performs a valuable function where the Court has patently
misunderstood a party, or has made a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning but of apprehension.” Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation and
quotations omitted). In support of their Motion, Plaintiffs contend that a disputed issue of
material fact exists, precluding a finding that the Motor Carrier Act exemption applies to
Thompson and Hayden. Having reviewed the parties’ latest round of briefing, the Court is now
persuaded that it may have “jumped the gun” and prematurely probed too deeply into the merits
at the early conditional certification stage.
A.

The Motor Carrier Act exemption
While the Court need not exhaustively rehash the factual backdrop and the basic legal

standards at this time, some background is instructive. The FLSA requires employers to pay
overtime of at least one and one-half times an employee’s regular rate of pay. 29 U.S.C. § 207(a)
(1). This requirement is not limitless, however. The FLSA specifically exempts a wide range of
employees from overtime eligibility. For instance, the Motor Carrier Act exemption (“MCA
exemption”), which lies at the heart of the present dispute, specifically exempts from overtime
pay any employee over “whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to the provisions of Section 31502 of Title
49.” 29 U.S.C. § 213(b) (1). An employee is subject to the MCA exemption if he or she meets
three requirements. The employee must be: (1) employed with a carrier subject to the power of
the Secretary of Transportation; (2) engaged in activities directly affecting the operational safety
of motor vehicles; and (3) engaged in interstate commerce. See 29 C.F.R. § 782.2. For purposes

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of the Motion to Reconsider, the parties’ dispute centers squarely on the interstate commerce
requirement.
In the February 11, 2011 Entry (Dkt. 68), this Court acknowledged that the issue of
whether Thompson and Hayden engaged in interstate commerce was “hotly contested.”
Plaintiffs emphasized that both Thompson and Hayden were Non-Recyclable Drivers who
regularly transported non-recyclable materials within the State of Indiana. Plaintiffs argued that
since they never engaged in interstate commerce as part of their “regular” or “normal” duties,
Thompson and Hayden are suitable collective action representatives. KRD counters that any of
its drivers, including Thompson and Hayden, “could be called upon at any time to carry any
load, whether intrastate or interstate,” meaning the MCA exemption applies. (Dkt. 71 at 4).
And, indeed, Thompson and Hayden each crossed Indiana state lines on one occasion to
transport KRD equipment to South Carolina.
In its prior entry, the Court found KRD’s argument persuasive, determining that the
MCA exemption applied to Thompson and Hayden. In other words, even if Thompson and
Hayden rarely crossed state lines (or, for that matter, hauled recyclable material destined for outof-state purchasers), they could have been called upon to do so in their regular course of work.
For this reason, the Court denied Plaintiffs’ motion for conditional certification.
Having now reviewed a more thorough body of case law, the Court finds that it erred by,
in effect, making a merits determination at this early stage. As Plaintiffs emphasize, they have a
“lenient” burden at this stage of the proceedings and, as such, courts do not reach the merits of
Plaintiffs’ FLSA claims. Fravel v. County of Lake, 2008 WL 2704744, at *2 (N.D. Ind. July 7,
2008) (citations omitted). However, it is worth noting that even at this early stage, a court must
also ensure that the proposed class representatives are adequate.

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For instance, in In re Fedex Ground Package Sys., Inc., Employment Practices Litigation,
662 F. Supp. 2d 1069 (N.D. Ind. 2009), the Northern District of Indiana refused to certify a class
because the MCA exemption applied to named plaintiffs, rendering them inadequate class
representatives. Id. at 1082.

Moreover, the Seventh Circuit has recognized that “[b]efore

deciding whether to allow a case to proceed as a class action…a judge should make whatever
factual and legal inquiries are necessary under Rule 23.” Szabo v. Bridgeport Machines, Inc.,
249 F.3d 672, 676 (7th Cir. 2001).1 Plainly stated, if the law was overwhelmingly obvious that
the MCA exemption applied to Thompson and Hayden – therefore rendering them inadequate
collective action representatives – the Court would feel comfortable denying certification,
notwithstanding the procedural posture of this case.
The law, however, is not so clear-cut. Courts have seemingly taken divergent positions
when determining the applicability of the MCA exemption. For instance, some courts have
effectively embraced a more bright-line rule that if a driver merely could be called upon to cross
state lines, then the MCA exemption bars overtime pay. The Court heavily relied on these cases
in its previous Entry denying conditional certification. See, e.g., Craft v. Ray’s, 2009 WL
3163148, at * 4 (S.D. Ind. Sept. 29, 2009) (“the pertinent inquiry is whether the driver in
question ‘is, or could be, called upon to transport a shipment in interstate commerce.’”); Songer
v. Dillon Resources, Inc., 636 F. Supp. 2d 516, 524-27 (N.D. Tex. 2009), aff’d 618 F.3d 467 (5th
Cir. 2010) (granting summary judgment due to applicability of MCA exemption; even though 13
of the 21 plaintiffs had never actually traveled across state lines, MCA exemption applied
because drivers could “reasonably have been expected” to make an interstate run); Vidinliev v.

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While Rule 23 does not govern FLSA collective actions, the Court believes this principle still holds true under the
circumstances. As the In re Fedex court noted, “Although the requirements of Rule 23 generally don’t apply to
certification of an FLSA collective action, inadequacy of representation is nevertheless an equitable consideration at
issue in determining whether to certify a putative class.” 662 F. Supp. 2d at 1081-82.

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Carey International, Inc., 2009 WL 2848344, at *2-3 (N.D. Ga. Aug. 31, 2009) (granting
summary judgment based on MCA exemption partially because chauffeurs, even those who have
never traveled out-of-state and who have expressed preferences to only travel in-state, “may end
up driving out of state because of a client’s request”); see also 29 C.F.R. § 782.2(b)(3) (general
rule is that “if the bona fide duties of the job performed by the employee are in fact such that he
is (or, in the case of a member of a group of drivers…that he is likely to be) called upon in the
ordinary course of his work to perform, either regularly or from time to time, safety-affecting
activities of the character described in paragraph (b)(2)…he comes within the exemption in all
workweeks when he is employed at such job.”).
Other courts have embraced an arguably more nuanced approach, under which the
plaintiff’s “normal” or “regular” duties are paramount in determining the applicability of the
MCA exemption. See, e.g., Dauphin v. Chestnut Ridge Transp., Inc., 544 F. Supp. 2d 266, 275
(S.D.N.Y. 2008) (denying summary judgment with respect to FLSA claims; “Thus, for the motor
carrier exemption from the FLSA to apply, defendants here must establish either that the
activities of the individual plaintiffs involved interstate travel of a character that was more than
de minimis or that interstate travel was a ‘natural, integral and...inseparable part’ of the position
plaintiffs held.”); Dole v. Circle “A” Construction, Inc., 738 F. Supp. 1313, 1322 (D. Idaho
1990) (“a driver is not exempt under the [MCA] merely because he takes one or two interstate
trips.”); see also 29 C.F.R. § 782.2(b)(3) (“where the continuing duties of the employee’s job
have no substantial direct effect on such safety of operation or where such safety-affecting
activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply
to him in any workweek…”). Moreover, it is worth noting that FLSA exemptions “are to be
narrowly construed against the employers seeking to assert them and their application limited to

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those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392 (1960).2
Ostensibly, there is some tension in the case law – and perhaps even in the regulations
themselves. Given this backdrop, the Court is reticent to pierce into the merits, as this case is in
its relative infancy. Along those same lines, the Court believes that its previous entry was
premature. Plaintiffs argue that “[t]o the extent Thompson, Hayden or any other Non-Recyclable
Driver did haul recyclable garbage either in intrastate or interstate commerce, these duties would
be only temporary and sporadic and would not constitute their regular duties.” (Dkt. 70 at 6;
emphasis in original). The Court finds that this argument carries Plaintiffs past the conditional
certification stage. Simply stated, the Court should not rule on the merits of this case until it has
a more complete picture of the nature and character of Plaintiffs’ duties.
KRD argues that a decision granting conditional certification would turn the Supreme
Court’s decision in Morris v. McComb, 332 U.S. 422 (1947) on its head. The Court, however, is
not convinced. In McComb, the Supreme Court held that a class of drivers was covered by the
MCA exemption, even though interstate trips comprised only four percent of the employer’s
total business. But in doing so, the Court deemed it significant that the interstate trips were
“shared indiscriminately by the drivers,” making these trips a “natural, integral, and apparently
inseparable part” of the driver’s duties. Id. at 433. Here, if trips of an interstate character were
not distributed indiscriminately, this would potentially render McComb distinguishable. For this
reason, McComb is not dispositive, at least not in the conditional certification stage. Upon a
more thorough examination, the Court is persuaded that KRD’s MCA exemption argument
cannot carry the day.
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In the Court’s view, it is also significant that these rulings were made at the summary judgment stage – not at the
conditional certification stage.

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B.

KRD’s remaining arguments
KRD also argues that a collective action should not be conditionally certified because the

proposed class members’ claims require an individualized analysis, thus rendering conditional
certification improper. In a similar vein, KRD contends that the facts alleged fail to support a
finding that the proposed collective action members stand as similarly situated. Specifically,
“conditional certification would force the Court to engage in a driver-by-driver analysis of
duties, thereby undermining any efficiencies gained via the collective action.” (Dkt. 55 at 8.)
Courts apply a two-step inquiry when faced with a collective action under the FLSA.
The first step, where this case currently sits, is often referred to as the “notice stage” or
“conditional certification.” It only requires plaintiff to make a threshold, minimal showing that
the potential plaintiffs are similarly situated. Fravel, 2008 WL 2704744, at *2 (collecting cases);
see also In re Fedex, 662 F. Supp. 2d at 1081 (plaintiffs must “demonstrate a reasonable basis for
believing that they are similarly situated to potential class members.”) (citation and quotations
omitted). This step is based upon only the pleadings and any affidavits that have been submitted.
Fravel, 2008 WL 2704744, at *2 (citing Cameron-Grant v. Maxim Healthcare Services, Inc.,
347 F.3d 1240, 1243 (11th Cir. 2003)). In the second inquiry, made at the close of discovery, the
Court assesses whether the plaintiffs who opted into the lawsuit are actually similarly situated to
the representative plaintiffs. Boyd v. Jupiter Aluminum Corp., 2006 WL 1518987, at *3 (N.D.
Ind. May 31, 2006) (citations omitted). Given that the present motion is only for conditional
certification, the Court need not venture past step one at this time. Id. Here, Plaintiffs’ requisite
showing is a “modest” one. Id.
Plaintiffs have alleged that Non-Recyclable Drivers, who primarily hauled non-recyclable
materials within the State of Indiana, were unlawfully denied overtime pay. To bolster this

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position, Plaintiffs cite to the affidavit of David Wilbur, a former dispatcher/driver manager of
KRD, who testified regarding the various classes of KRD’s drivers and KRD’s pay practices in
Indianapolis. In the Court’s view, Mr. Wilbur’s affidavit is enough to allow Plaintiffs to move
forward.
Accordingly, a more searching analysis assessing issues related to the “similarly situated”
requirement is best left for another day. See Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303,
308 (S.D.N.Y. 1998) (“Even if plaintiffs’ claims turn out to be meritless or, in fact, all the
plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further
discovery, may enable a more efficient resolution of the underlying issues in this case.”) (citation
and quotations omitted); Austin v. Cuna Mutual Ins. Society, 232 F.R.D. 601, 606 (W.D. Wis.
2006) (even “the possibility of a fact-intensive inquiry into whether all members of the putative
opt-in are in fact similarly-situated does not preclude authorizing notice, although the need for
such an analysis might weigh against or defeat certification of an actual class (or influence the
form of any eventual certified class) at the second stage.”) (citation and quotations omitted); see
also Herrera v. Unified Management Corp., 2000 WL 1220973, at *2 (N.D. Ill. Aug. 18, 2000)
(more efficient to prune class members at later stage than to restrict class at start and expand at a
later stage).
C.

Conclusion and scope of collective action
Largely driven by the procedural posture of this case, the Court has resolved to GRANT

Plaintiffs’ Motion for Reconsideration (Dkt. 69) and their underlying Motion for Conditional
Certification (Dkt. 19). Following the close of discovery, KRD may seek decertification.
Given the Court’s ruling, KRD should submit the following information to Plaintiffs
electronically within thirty (30) days of this Order: the names, addresses, telephone numbers,

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dates of employment, location of employment, and dates of birth of all potential plaintiffs, which
at this time are limited to employees who work/have worked in KRD’s Indianapolis operations
(on or after January 18, 2007). Courts “have required plaintiffs to offer admissible evidence to
support their claims that those they wish to represent are similarly situated.” Mares v. Caesars
Entertainment, Inc., 2007 WL 118877, at *3 (S.D. Ind. Jan. 10, 2007) (collecting cases;
emphasis added; allowing certification of class limited to location where named plaintiff worked
but denying certification of nationwide class).
Specifically, in Mares, the district court noted that plaintiffs’ request for an expansive
collective action as to a company-wide policy was “based upon conversations with others” and a
“belief” that similar policies and practices were in effect at other defendant-owned facilities. Id.
The court deemed this evidence insufficient “to carry the Plaintiffs’ modest burden of showing
sufficient similarity to all members of the broad class they seek to represent.” Id. Similarly,
here, Plaintiffs’ request for a nationwide class is based on Mr. Wilbur’s conversations with
others and his “understanding that KRD pays/paid all of its truck drivers only by the load.” As
KRD noted in its original sur-reply, Plaintiffs have failed to provide any admissible evidence
regarding employees outside of Indiana. The Court agrees. Therefore, the geographic scope of
the conditionally-certified collective action must be limited accordingly.

SO ORDERED.
06/15/2011
Date: ___________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution attached.

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Distribution to:
Emmanuel V.R. Boulukos
ICE MILLER LLP
[e-mail], [e-mail]
David J. Carr
ICE MILLER LLP
[e-mail], [e-mail]
Paul Conrad Sweeney
ICE MILLER LLP
[e-mail], [e-mail]
Stephen E. Vander Woude
LANTING PAARLBERG & ASSOCIATES
[e-mail], [e-mail]
Ronald E. Weldy
WELDY & ASSOCIATES
[e-mail]

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