NOLL v. FLOWERS FOODS INC et al

Filing 292

PROCEDURAL ORDER By JUDGE LANCE E. WALKER. (CJD)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TIMOTHY NOLL, individually and,
on behalf of similarly situated
individuals,

)
)
)
)
Plaintiff
)
)
v.
)
)
FLOWERS FOODS INC, LEPAGE
)
BAKERIES PARK STREET, LLC., and )
CK SALES CO., LLC,
)
)
Defendants
)

1:15-cv-00493-LEW

PROCEDURAL ORDER
On September 10, 2020, I amended a prior judgment and vacated final judgment, in
order to reinstitute a state law class action claim for invalid paycheck deductions found in
Count IV of the Complaint. I also directed the parties to meet and confer and report back
on the following issues: (1) subject matter jurisdiction; (2) what remains, if anything, of
Count II (declaratory judgment for the Rule 23 class); (3) what remains, if anything, of
Count V (contract rescission / quantum meruit); (4) expert report supplementation; and (5)
whether to assess any remaining claims(s) through a second round of summary judgment
practice. On September 22, 2020, the parties reported their respective positions on these
matters. Status Report (ECF No. 291). This Procedural Order addresses the outstanding
concerns.

1.

Jurisdiction

The parties agree that jurisdiction exists under the Class Action Fairness Act, 28
U.S.C. § 1332(d)(2), given the amount in controversy and the citizenship of the parties.
Although the parties do not provide a representation concerning the amount presently in
controversy, it is appropriate for the Court to retain jurisdiction even if the paycheck
deduction claims on their own do not cross the five million dollar Class Action Fairness
Act threshold. Ferrari v. Best Buy Co., No. 14-CV-2956, 2016 WL 5508818, at *3 (D.
Minn. Sept. 28, 2016) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
289–90 (1938) (“Events occurring subsequent to the institution of suit which reduce the
amount recoverable below the statutory limit do not oust jurisdiction.”)). I am satisfied
that the continued exercise of jurisdiction over Count IV is appropriate.
2.

Count II

Count II of the Complaint asserts a declaratory judgment claim and requests that the
Court declare that Defendants misclassified Plaintiffs and the Rule 23 class as independent
contractors, and that Plaintiffs and the class are, in fact, Defendants’ common law
employees. In the Summary Judgment Order (ECF No. 262), I dismissed Count II because
I concluded the Maine outside sales exemption precluded Plaintiffs’ claim for unpaid
overtime. Without a viable state claim for unpaid overtime, the declaratory judgment claim
about misclassification was effectively moot for purposes of Maine law. At least that was
my thinking, which I explain now, here. See Am. Civil Liberties Union of Massachusetts
v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited
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exceptions, not present here, issuance of a declaratory judgment deeming past conduct
illegal is also not permissible as it would be merely advisory.”).
However, when I asked the parties whether anything remained of Count II, my
concern was whether a state law claim for declaratory relief should coincide with the
paycheck deduction claim in Count IV. In other words, I wanted to know whether proof
of misclassification is essential to relief on the paycheck deduction claim. Instead of
addressing that question, as I had hoped, Plaintiffs argue I should reinstate a federal claim
under Count II.

Plaintiffs’ request that I reinstitute a federal declaratory judgment

misclassification claim is DENIED. I have decertified the collective action and dismissed
with prejudice Plaintiff Noll’s FLSA claim for unpaid overtime wages. That renders the
federal declaratory judgment claim moot.
Although it is not entirely clear to me, it appears that perhaps Maine law does not
require Plaintiffs to prove they are common law employees misclassified as independent
contractors in order to obtain relief under subchapter 2 of Title 26. See Beckwith v. United
Parcel Serv., 711 F. Supp. 655, 658 (D. Me.) (reasoning that the “employee” concept for a
§ 629 claim extends to all “working people who are dependent upon full and regular wage
payments to meet their weekly needs” (quoting Knoppers v. Rumford Community Hosp.,
531 A.2d 1276, 1280 (Me. 1987)), aff'd sub nom. Beckwith v. United Parcel Serv., Inc.,
889 F.2d 344 (1st Cir. 1989); and compare 26 M.R.S. § 626 (“For purposes of this section,
the term ‘employee’ … does not include an independent contractor.” (emphasis added))
with § 629 (lacking a similar preclusion of relief for independent contractors). However,
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other precedent suggested to me that “employee” status is a prerequisite to § 629 relief.
Scovil v. FedEx Ground Package Sys., Inc., 886 F. Supp. 2d 45, 47 (D. Me. 2012) (“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.” (emphasis
added)).
Because Plaintiffs do not request that I reinstitute Count II to preserve a state law
declaratory judgment claim, I leave the dismissal of Count II undisturbed.
3.

Count V

The parties agree that Count V should be dismissed without prejudice.
4.

Expert Report Supplementation

The parties’ proposal for expert report supplementation is appropriate.
5.

Summary Judgment

Defendants propose that there be a second round of summary judgment proceedings
to refine or potentially resolve the paycheck deduction claim. Plaintiff opposes the request.
Because of the disruption of court proceedings caused by the COVID-19 virus, it
will be months before this matter finds its way into the courtroom. The Court agrees with
Defendants that there is good cause, in the interim, to amend the scheduling order to permit
the parties to file a summary judgment motion exclusively in relation to the paycheck
deduction claim. Specifically, the parties are permitted to present a summary judgment
motion on the following limited issues: (1) the scope of recoverable deductions and (2)
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whether treble damages are recoverable on the claim.
Each party intending to file a motion for summary judgment on the foregoing issues
may do so on or before October 30, 2020. Opposition papers will be filed on or before
December 4, 2020. The reply deadline is December 11, 2020. Memoranda length will
comply with Local Rule 7(e). Absent a prior showing of special need, a party who files a
motion for summary judgment will limit the supporting statement of material facts to 30
fact statements (total), and the opposing party will limit the opposing statement of
additional material facts to 30 fact statements (total). The parties may introduce additional
statements by stipulation.
SO ORDERED.
Dated this 29th day of September, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE

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