Gray et al v. FedEx Ground Package System, Inc.

Filing 330

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motions to Strike Defendant's Consolidated Response to Plaintiffs' Omnibus Statements of Uncontroverted Facts 309 , 188 and Plaintiffs' Individual Statements of Uncon troverted Material Facts. 310 , 189 are DENIED. IT IS FURTHER ORDERED that Plaintiffs Motions for Partial Summary Judgment as to Employment Status 209 , 113 are GRANTED. IT IS FURTHER ORDERED that Defendant FedEx Ground Package System, Inc. 9;s Consolidated Motion for Summary Judgment 212 , 122 is GRANTED in part and DENIED in part as follows: As to Plaintiffs claims for fraudulent misrepresentation (Gray Compl., Count I; Wells Amended Compl., Count II), the motion is DENIED. As to Plaintiffs claims for wages/overtime (Gray Compl., Count II; Wells Amended Compl., Count I), the motion is GRANTED as to Gray Plaintiffs Arbutti, Blackmon, Brown, Candela, Hill, Holmes, Patton, Sheffer, Tenison, Tichenor, and Tucker, and Wells Plaint iffs Cooke, Moore, andJacobson. As to the claims of Wells Plaintiffs Wells and Smith for rescission and declaratory judgment (Wells Amended Compl., Counts III and IV), the motion is DENIED. IT IS FURTHER ORDERED that a telephone conference with coun sel is scheduled for Friday October 18, 2013 at 10:00 a.m to set these cases for trial and establish trial procedures. ( Telephone Conference set for 10/18/2013 10:00 AM in Telephone before District Judge John A. Ross.) Signed by District Judge John A. Ross on 9/27/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID WELLS, et al.,
Plaintiffs,
vs.
FEDEX GROUND PACKAGE
SYSTEM, INC.,
Defendant.
______________________________________
REGINALD GRAY, et al,
Plaintiffs,
vs.
FEDEX GROUND PACKAGE
SYSTEM, INC.,
Defendant.
______________________________________

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Case No. 4:10-CV-2080-JAR

Case No. 4:06-CV-00422-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motions for Partial Summary Judgment as to
Employment Status [Gray ECF No. 209; Wells ECF No. 113], Defendant FedEx Ground Package
System, Inc.’s Consolidated Motion for Summary Judgment [Gray ECF No. 212; Wells ECF No.
122], and Plaintiffs’ Consolidated Objections to and Motions to Strike Defendant’s Consolidated
Response to Plaintiffs’ Omnibus Statements of Uncontroverted Facts [Gray ECF No. 309; Wells
ECF No. 188] and Plaintiffs’ Individual Statements of Uncontroverted Material Facts. [Gray ECF
No. 310; Wells ECF No. 189] The Motions are fully briefed and ready for disposition. Oral argument
on the motions for summary judgment was held on January 10, 2013. For the following reasons, the
Plaintiffs’ motions for partial summary judgment as to employment status will be granted and their

motions to strike will be denied. FedEx’s motion for summary judgment will be granted in part and
denied in part.
I. Background and Procedural History
FedEx Ground Package System (“FedEx”) provides small package pick-up and delivery
services in the United States, including the State of Missouri, through a network of pick-up and
delivery drivers. Plaintiffs are former drivers/contractors. Each Plaintiff executed a “Pickup and
Delivery Contractor Operating Agreement” (“OA”)1 with FedEx which they allege misclassified
them as independent contractors when they were in fact employees of FedEx. Plaintiffs contend that
as employees they are entitled to reimbursement of business expenses and back pay for overtime.
A. Gray, et al. v. FedEx Ground Package System, Inc.2
On March 6, 2006, seven current and former drivers from Missouri filed a putative class
action complaint against FedEx challenging their status as independent contractors under Missouri
law. The complaint alleged claims for illegal deductions, fraudulent misrepresentations, rescission,
and declaratory relief. The case was transferred to the Multi-District Litigation (the “MDL”) in
which similar cases against FedEx were consolidated in the Northern District of Indiana for

1

FedEx operates a “ground” division and a “home” division for package delivery.
Plaintiffs who drove for the “ground” division signed a FedEx Ground Package System, Inc.
Pick-up and Delivery Contractor Operating Agreement; Plaintiffs who drove for the
“home”division signed a FedEx Home Delivery Standard Contractor Operating Agreement.
Because the parties agree the two types of OAs are substantially similar, when referencing
provisions of the OA, the Court will cite to Plaintiffs’ Omnibus Exhibit No. 2 (Gray Doc. No.
210-6; Wells Doc. No. 115-2), the FedEx Ground Pick-up and Delivery Contractor Operating
Agreement.
2

The Gray Plaintiffs are Bob Candella, Reginald Gray, Seid Huskic, Robert Hansen,
Jamie Tenison, Bob Arbutti, Gary Austin, Bob O'Keefe, Michael Jost, Marcus Holmes, Rich
Mitchell, Rick Hendricks, Luther McLain, James Tichenor, Carl Tucker, Kevin Pour, Mike
Sheffer, Don Blackmon, Roy Patton, Jr, Jammie Hill, John Waweru, Bobby Brown, Tom
Skundrich, Jr, Mike Sanders, and Bob Lee Baker.
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discovery and class certification purposes. In re FedEx Ground Package Sys., Inc., No.
3:05-MD-527-RM (N.D. Ind.).
On April 2, 2007, the Gray Plaintiffs moved for class certification of their statutory claim
for unauthorized wage deductions, Mo.Rev.Stat. § 290.010, their common law claims for rescission
and unjust enrichment, and their claim for declaratory relief. The MDL court denied class
certification on March 25, 2008, finding that under Missouri law, the question of employment status
could not be decided on a class-wide basis. In re FedEx Ground Package System., Inc., Employment
Practices Litigation, 273 F.R.D. 424, 475 (N.D. Ind. 2008). In September 2008, following denial of
class certification, the Gray Plaintiffs filed a Second Amended Complaint, naming sixteen additional
plaintiffs. Four more plaintiffs were added in a Third Amended Complaint, which was filed in April
2010. After the case was remanded back to this Court, the Fourth Amended Complaint adding one
additional Plaintiff was filed on October 30, 2011, and a Fifth Amended Complaint was filed on
November 9, 2011.
On December 15, 2011, this Court granted FedEx’s motion to dismiss Plaintiffs’ Fifth
Amended Complaint as to the declaratory judgment claim, construed the illegal deductions claim
to include a claim for overtime pay, and granted Plaintiffs leave to amend their complaint. (Gray
Doc. No. 136) Plaintiffs’ Sixth Amended Complaint alleges causes of action for fraudulent
misrepresentation (Count I) and overtime (Count II) under Mo. Ann. Stat. §§ 290.527 and 290.505.
(Gray Sixth Amended Complaint (“Gray Compl.”), Gray Doc.. No. 142 ) On FedEx’s motion, this
Court dismissed the wage claims of four Plaintiffs as time-barred. (Gray Doc. No. 157).3
B. Wells, et al. v. FedEx Ground Package System, Inc.4

3

Huskic, Hansen, Mitchell, and McLain

4

The Wells Plaintiffs are David Wells, Thomas Redel, Jonathan Thurston, Marvin
Bowden, Brad Kennedy, Steven Miller, Seth Borders, Dale Jacobson, Leo Violett, Paul
-3-

On November 3, 2010, 24 current and former drivers from Missouri filed suit against FedEx
challenging their status as independent contractors under Missouri law and asserting claims for
illegal deductions/overtime (Count I); fraudulent misrepresentation (Count II); rescission (Count
III); and declaratory judgment (Count IV).5 Three additional Plaintiffs subsequently joined the case
on May 10, 2011. Wells was never part of the MDL.
Plaintiffs move for partial summary judgment on the issue of employment status. FedEx
moves for summary judgment on all Counts of Plaintiffs’ Sixth Amended Complaint in Gray:
Fraudulent Misrepresentation (Count I) and Claims for Wages Under Sections 290.527 and 290.505,
R.S.Mo. (Count II), and on all Counts of Plaintiffs’ Amended Complaint in Wells: Illegal
Deductions from Wages (Count I),1 Fraudulent Misrepresentation (Count II), Rescission (Count III),
and Declaratory Judgment (Count IV).
II. Legal Standard
Summary judgment is proper if the pleadings, discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th
Cir. 2011) (internal citations and quotation marks omitted). The movant bears the initial burden of
informing the district court of the basis for its motion, and must identify those portions of the record

Fickbohm, Alan Dees, William Taube, David Moore, Richard Svitak, Todd Cooke and Scott
Smith.
5

Eight Plaintiffs have overtime claims remaining because the Court dismissed the claims
of eight Plaintiffs (Thurston, Bowden, Kennedy, Miller, Borders, Adams, Violett and Dees) as
time-barred. (Wells Doc. No. 34, pp. 4-5, 8-9). One Plaintiff (Svitak) voluntarily dismissed his
wage claim. (Wells Doc. No. 38) Fourteen Plaintiffs have fraudulent misrepresentation claims
remaining because the Court dismissed the claims of three Plaintiffs (Kennedy, Thurston and
Violett) as time-barred. (Wells Doc. No. 34, p. 11). Two Plaintiffs (Smith and Wells) have a
rescission claim remaining, as the Court dismissed the rescission claims of the other Wells
Plaintiffs because their OAs had been fully performed and thus could not be rescinded. (Id.)
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which it believes demonstrate the absence of a genuine issue of material fact. Id. If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set out specific facts
showing that there is a genuine issue for trial. Id. On a motion for summary judgment, facts must
be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as
to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Id. The nonmovant must
do more than simply show that there is some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a genuine issue for trial. Id. Where the record
taken as a whole could not permit a jury to find for the nonmoving party, there is no genuine issue
for trial.
Where parties file cross-motions for summary judgment, each summary judgment motion
must be evaluated independently to determine whether a genuine issue of material fact exists and
whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition
Co., 519 F.Supp.2d 929, 942 (S.D. Iowa 2007). “[T]he filing of cross motions for summary
judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect
of submitting the cause to a plenary determination on the merits.” Wermager v. Cormorant
Township Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). In determining the appropriateness of summary
judgment, “the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
III. Discussion
A. Plaintiffs’ Consolidated Objections to and Motions to Strike Defendant’s
Consolidated Response to Plaintiffs’ Omnibus Statements of Uncontroverted Facts and
Plaintiffs’ Individual Statements of Uncontroverted Material Facts.
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As a threshold matter, Plaintiffs have moved to strike FedEx’s consolidated responses to
their statements of material facts on the grounds that they are non-responsive and supported by selfserving declarations, legal conclusions and improper statements of opinion. Plaintiffs point to
declarations filed by various FedEx managers which they contend contradict their earlier deposition
testimony concerning certain aspects of control FedEx exercised over Plaintiffs. In response, FedEx
acknowledges that a disputed issue of material fact cannot be created through an affidavit that
directly contradicts previous deposition testimony, see, e.g., Page v. Fifth Third Bank, 2009
WL2252557 at *3 (E.D. Mo. July 29, 2009), but contends that is not the case here, where the kind
of direct contradictions addressed in cases such as Page do not exist simply because one witness’s
testimony differs from another’s. (Gray Doc. No. 319; Wells Doc. No. 197, p. 3)
By way of example, FedEx points to the declaration of terminal manager Mark Kanter,
wherein he states that “contractors had the option of using the scanner leased from FedEx Ground
to code their packages.” (Gray Doc. No. 320-4; Wells Doc. No. 198-2, Kanter Decl., ¶ 32) In his
deposition, however, Kanter testified that every driver was required to have a scanner. (Gray Doc.
No. 320-3; Wells Doc. No. 198-2, Kanter Depo. 87:10-88:8) The fact that every driver was required
to have a scanner is a separate matter from where the scanner was obtained. There is nothing
contradictory about these statements. Likewise, Kanter stated that “scanners were not used by the
managers to track the contractors.” (Kanter Decl., ¶ 6) In his deposition, however, he testified he
could and did track the drivers’ package delivery throughout the day for several reasons, including
“to see how somebody is doing. If he has got a lot of stops. If he is going to get done today,” because
he wanted to “make sure all of the packages got delivered.” (Kanter Depo. 238:20- 240:4) This does
not appear to actually contradict his earlier testimony in that he may be making a distinction between
tracking contractors and tracking package delivery.

-6-

Plaintiffs also maintain that a number of FedEx managers were unable to recall on deposition
specific training on FedEx policies and procedures, although they all testified they had received
some training. (Gray Doc. No. 309, 310; Wells Doc. No. 188, 189) In particular, Plaintiffs point to
the declaration of FedEx manager Kearce Peters, wherein she stated that she attended managerial
training classes offered by FedEx, and that in those training classes, emphasis was placed on “the
importance of adhering to the terms of the [Operating Agreement].” She also stated that she was
taught that “FedEx Ground employees may not dictate the manner and means of package delivery
to contractors, but must focus only on the ultimate results sought under the OA.” At her deposition,
Peters testified she had received training on FedEx’s policies and procedures but did not recall any
specifics. The purported inconsistencies between Peters’ declaration and deposition do not appear
contradictory so much as elaboration on information already conveyed.
Generally, a court is required to consider an otherwise admissible affidavit, unless that
affidavit contradicts previous deposition testimony. Popoalii v. Correctional Medical Services, 512
F.3d 488, 498 (8th Cir. 2008). The court must exercise extreme caution and carefully articulate its
reasons for finding an affidavit contradictory of earlier testimony. Pimentel v. St. Louis Public
Schools, 2011 WL 128788, at *1 -2 (E.D.Mo. Jan. 14, 2011) (citing Mountain Pure, LLC v. Bank
of America, N.A., 481 F.3d 573, 577 (8th Cir. 2007)). A court should not strike a post-deposition
affidavit that “simply restates information already contained in deposition testimony or elaborates
on information already conveyed, that does not actually contradict the affiant's earlier testimony, that
includes statements “that [the affiant] was confused in [the earlier] deposition or where the affiant
needs to explain portions of [the earlier] deposition testimony that were unclear.” Pimental, 2011
WL 128788, at *1 (internal quotations and citations omitted)
The Court has considered the parties’ arguments and in its discretion will deny Plaintiffs’
motions to strike. The Court will consider FedEx’s declarations since they aid the Court in
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determining whether there is a genuine issue of material fact on the issue of Plaintiffs’ employment
status. Likes v. DHL Express (USA), Inc., 2012 WL 8499732, at *1n.1 (N.D.Ala. Mar. 7, 2012).
B. Plaintiffs’ Motions for Partial Summary Judgment as to Employment Status
Plaintiffs submit that the undisputed facts of these cases demonstrate that FedEx controlled
and managed their routes and businesses to such an extent that they were employees of FedEx and
not independent contractors. According to Plaintiffs, FedEx required packages to be delivered and
picked up at certain times, dictated the drivers’ dispatches, set the pricing, and even controlled what
they wore. Essentially, Plaintiffs argue they had no distinct businesses of their own.
In opposition to Plaintiffs’ motions, FedEx points to a number of undisputed facts that
demonstrate Plaintiffs are independent contractors as a matter of law. In particular, Plaintiffs
perform their duties pursuant to an Operating Agreement that gives them the right to hire their own
employees and “work” entirely through someone else’s labor. FedEx maintains that Plaintiffs
manage and control substantial investments in their business, set their own hours, choose their own
routes, and select whatever methods they want to complete their work. They can buy and sell their
jobs and FedEx has no right to unilaterally terminate their contracts.
Whether an individual is an employee or an independent contractor is generally considered
a question of fact. Huggins v. FedEx Ground Package Systems, Inc., 592 F.3d 853, 857 (8th Cir.
2010). However, when the facts are undisputed and “only one reasonable conclusion can be drawn”
from those facts, the issue may be decided as a matter of law. Id. The right to control “is the pivotal
factor in distinguishing between employees and other types of workers. If the employer has a right
to control the means and manner of a person's service—as opposed to controlling only the results
of that service—the person is an employee rather than an independent contractor.” Leach v. Board
of Police Com'rs of Kansas City, 118 S.W.3d 646, 649 (Mo.Ct.App. 2003) (citing Seaton v. Cabool
Lease, Inc., 7 S.W.3d 501, 505 (Mo.App.1999)).
-8-

“The concept of the “right to control” is more intricate in Missouri than most other states,”
see In re FedEx, 273 F.R.D. at 530, and requires consideration of the following eight factors: (1) the
extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right
to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished
equipment, (7) the extent to which the work is the regular business of the employer, and (8) the
employment contract. Id. See also Skidmore v. Haggard, 110 S.W.2d 726, 729-30 (Mo. 1937);
Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo.Ct.App. 2001). No one factor is
dispositive; the Court must consider the facts as a whole when making a determination regarding
employment status. Hamilton v. Palm, 621 F.3d 816, 818-19 (8th Cir. 2010) (“Under Missouri law,
the critical right-to-control issue is affected by many factors “none of which is in itself controlling.”)
Both sides have extensively briefed this eight factor test, and believe the factors weigh in their favor.
(1) Extent of Control
To determine extent of control, the Court looks to the terms and provisions of the OA to see
what powers FedEx reserved for itself. Nunn v. C.C. Midwest, 151 S.W.3d 388, 400 (Mo.Ct.App.
2004). Plaintiffs acknowledge that certain sections of the OA specify they will be independent
contractors, and that the manner and means of their work will not be controlled by FedEx; however,
they contend that the balance of the OA details the virtually unlimited control FedEx exercised over
them, including, inter alia, their vehicles, day-to-day operations, and delivery routes. (Gray Mem.
in Supp., Doc. No. 210; Wells Mem. in Supp., Doc. No. 113, p. 6)
For example, although Plaintiffs provided their own vehicles, FedEx requires each vehicle
to meet certain specifications (OA, ¶ 1.1), to be painted “FedEx White,” and to be marked with the
FedEx logo and insignia. (OA, ¶ 1.5) Plaintiffs’ vehicles had to be maintained in a “clean and
presentable fashion free from body damage and extraneous markings.” (OA, ¶ 1.12) Plaintiffs pay
the costs of operating and maintaining their vehicles, including repairs, cleaning, fuel, tires, taxes,
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licenses and insurance, and must provide FedEx with proof of inspection and maintenance. (OA, ¶¶
1.2, 1.3, 1.6) Plaintiffs must use their trucks exclusively in the service of FedEx, or mask the logo
if the truck is used for any other purpose. (OA, ¶ 1.4, 1.5) FedEx reserves the right to remove
Plaintiffs’ vehicles from service if it finds the vehicles deficient in any way, a practice known as
“deadlining.” (OA, ¶ 1.2) If a vehicle was deadlined, Plaintiffs were required, at their expense, to
provide alternative equipment, subject to FedEx approval, to meet their obligations under the OA.
(Id.) Plaintiffs were not permitted to own or operate additional vehicles without FedEx’s consent,
or to allow drivers who were not pre-approved by FedEx to assume their job duties, even
temporarily. (OA, ¶¶ 2.1, 2.2)
Plaintiffs were required to wear FedEx uniforms, which had to be maintained in good
condition, and otherwise had to agree to keep their personal appearance consistent with “reasonable
standards of good order” as set by FedEx. (OA, ¶ 1.12) FedEx agreed to familiarize Plaintiffs with
its quality service procedure, and reserved the right to have its management employees travel with
Plaintiffs four times each year to verify they were meeting FedEx standards. (OA, ¶ 1.14)
On a daily basis, Plaintiffs were required to prepare driver logs, inspection reports, fuel
receipts, and shipping documents, and file the originals with FedEx at the end of each business day.
(OA, ¶ 1.7) Plaintiffs were also required to return any collected charges and undeliverable packages
to FedEx at the end of each business day, and provide such notations as FedEx required in order to
document the package locations and reasons for non-delivery. (OA, ¶¶ 1.8. 1.11) Plaintiffs were
responsible for daily pick-up and delivery of FedEx packages in their Primary Service Areas
(“PSA”s), or routes, assigned to them by FedEx. (OA, ¶ 1.10) Plaintiffs were required to make
reasonable efforts to “maintain and increase” business within their PSAs. (Id.) Through FedEx’s
Flex Program, FedEx could “shift” packages from outside each Plaintiff’s PSA for pick-up and
delivery based on the volume of such packages on a daily basis. (OA, ¶ 9) Plaintiffs were paid a
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daily flex fee for participating in the Flex Program. (Id.) FedEx also reserved the right to reconfigure
PSAs and reassign packages to another driver if the volume of packages in the service area exceeded
the amount a driver could reasonably be expected to handle on a given day. (OA, ¶ 5.2) The OA
requires compensation to the driver if reconfiguration resulted in less customers or accounts. (OA,
¶ 5.3)
In opposition to Plaintiffs’ motion, FedEx responds that the core provisions of the OA either
address the results Plaintiffs agreed to achieve, and not the physical performance of their work, or
are directed at ensuring compliance with government regulations. (Gray Doc. No. 279; Wells Doc.
No. 158 (“Consol. Opp.”), pp. 4-9). In particular, the requirements that Plaintiffs inspect and
maintain their vehicles, prepare daily driver logs and reports, and provide shipping information, are
directed at ensuring compliance with the regulatory control and oversight of the Department of
Transportation and the Federal Motor Carrier Safety Administration. (Id., p. 5) Likewise, FedEx’s
provision that Plaintiffs not use their vehicles for other customers while carrying FedEx packages,
and that Plaintiffs paint their vehicles a certain color and mark them with certain insignia, also stem
from federal regulations. (Id., pp. 6-7) FedEx also points out that many courts have recognized that
the sort of uniform and branding provisions found in the OA do not establish that it controlled
Plaintiffs’ work methods. Rather, they foster the professional image and good reputation of FedEx
and allow consumers “to be assured of their bona fides.” (Consol. Opp., pp. 9-10, citing Herman v.
Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d 667, 673 (D.Md. 2000)).
Plaintiffs reply that while an employer’s efforts to comply with government regulations is
not in and of itself sufficient to prove employee status, see K&D Auto Body, Inc. v. Division of
Employment Sec., 171 S.W.3d 100, 106 (Mo.Ct.App. 2005), “pervasive control by an employer
[which exceeded] to a significant degree the scope of the government imposed control” evidences
employee status. Id. (Gray Doc. No. 308; Wells Doc. No. 181 (“Reply Memo”), pp. 10-11)
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As discussed above, the determination of employment status cannot be made based on a
review of the OA alone. In Missouri, the “right to control” is defined with reference to the actual
exercise of control.
(2) Actual exercise of control
The analysis of actual control requires a driver-by-driver, terminal-by-terminal, supervisorby-supervisor analysis that is unnecessary in most other states. In re FedEx, 273 F.R.D. at 530
(citing Leach, 118 S.W.3d at 649). To that end, Plaintiffs have submitted individual statements of
uncontroverted material facts with attached affidavits, deposition testimony, responses and
objections to FedEx’s interrogatories and supporting exhibits (Plaintiffs’ Individual Statement of
Uncontroverted Material Facts (“Plaintiffs’ Indiv. SOF”), Gray Doc. Nos. 213, 228-251, 256; Wells
Doc. Nos. 113-1-113-18), as well as an Omnibus Statement of Uncontroverted Material Facts with
attached exhibits (“Plaintiffs’ Omnibus SOF”) containing factual statements that apply to all of the
cases. (Gray Doc. No. 210-1; Wells Doc. No. 116)
As evidence of actual control, Plaintiffs focus on a “comprehensive network” of policies and
procedures which they contend were developed and implemented by FedEx to manage and control
their daily activities. In particular, Plaintiffs point to Contractor Relations POLICY-007 (Plaintiffs’
Omnibus Ex. 22), which applies to FedEx managers and employees responsible for maintaining
relationships with pick-up and delivery drivers.. (Gray Mem. in Supp., pp. 19-25; Wells Mem. in
Supp., pp. 20-27)
Pursuant to these policies, prospective drivers were subjected to background checks, credit
reports, and drug screening. (Plaintiffs’ Omnibus Exs. 9-12; 30-32) In addition, FedEx maintained
an extensive training program, called Quality P&D Learning, for prospective or temporary drivers
who lacked the requisite experience. (Plaintiffs’ Omnibus Ex. 13; Plaintiffs’ Indiv. SOF, ¶ C.4.f)

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Plaintiffs were required to leave from and return to the terminal each day. Home delivery
drivers were required to work Tuesday through Saturday; ground delivery drivers were required to
work Monday through Friday. (Plaintiffs’ Indiv. SOF, ¶ C.3.a) Plaintiffs were required to work on
the days before and after holidays, and had to “buy” time off through Contractor Time-Off Program.
Plaintiffs’ Indiv. SOF, ¶ C.3.i)
Plaintiffs were required to carry and use scanners on their routes, maintain clean vehicles,
wear FedEx uniforms, submit their vehicles to D.O.T. inspections, and submit to random drug
screening. (Plaintiffs' Omnibus Exs. 26-27; Plaintiffs' Omnibus SOF, ¶¶ 30-31, 62; Plaintiffs' Indiv.
SOF, ¶¶ B.4 and C.2.a-e) FedEx provided these items to Plaintiffs through its Business Support
Package (OA, ¶ 7) and deducted the cost of each item through their weekly settlements. (Plaintiffs'
Omnibus Exs. 26, 27; Plaintiffs' Indiv. SOF, ¶ E.3). The Business Support Package, characterized
by Plaintiffs as a “company store,” is an elective program; however, Plaintiffs contend that in
practice, it was the only way to obtain the items provided and required by Fed Ex and charged to
Plaintiffs. (Gray Mem. in Supp., pp. 17-18; Wells Mem. in Supp., p. 14)
In addition, Plaintiffs contend that the methods and manner of package delivery was closely
monitored and controlled. FedEx assigned each Plaintiff a number of packages to deliver each day,
told each Plaintiff how and when each package must be delivered, and could even contact Plaintiffs
on their routes to direct them to pick up packages. (Plaintiffs’ Indiv. SOF ¶¶ C.1.a-k, C.4.b, i, I.10)
FedEx procedures also covered such matters as obtaining signatures, where to leave packages when
recipients were not available, and when packages could be released under these circumstances.
(Plaintiffs’ Omnibus Exs. 13 and 14; Plaintiffs' Indiv. SOF, ¶¶ C.1.a-e, i)
Plaintiffs who drove for the home delivery division were required to perform a morning
check-out before leaving the terminal. (Plaintiffs’ Omnibus Exs. 38-39; Plaintiffs' Omnibus SOF,
¶¶ 41-42) FedEx would obtain certain information from each Plaintiff, including settlement reports,
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vehicle inspection reports, and driver’s logs, and ensure Plaintiffs had sufficient door tags, delivery
notices, signature release cards, and spare batteries for their scanners. (Plaintiffs' Omnibus Ex. 38;
Plaintiffs' Omnibus SOF, ¶ 41; Plaintiffs’ Indiv. SOF, ¶ I.11) Plaintiffs were also required to
check-in at the end of each day. (Plaintiffs’ Omnibus Ex. 39; Plaintiffs' Omnibus SOF, ¶ 42;
Plaintiffs’ Indiv. SOF, ¶¶ C.2.h-i) Upon return to the terminal, Plaintiffs who drove for the ground
division, and some home delivery drivers, were required to turn in pending tracers, settlement
records, delivery manifests, accident packets, call tags, driver logs, daily vehicle inspection reports,
and their scanners. (Plaintiffs' Omnibus Ex. 39; Plaintiffs’ Indiv. SOF, ¶¶ C.2.h-i) Likewise,
Plaintiffs who drove for the home delivery division were required to upload their scanners’
information each night before a certain time. (Plaintiffs’ Indiv. SOF, ¶¶ C.2.h-i)
To ensure compliance with FedEx procedures, FedEx terminal personnel could ride with
Plaintiffs on their daily routes (customer service rides) to audit their performance. (Plaintiffs’
Omnibus Ex. 36; Plaintiffs’ Omnibus SOF, ¶¶ 12, 39; Plaintiffs' Indiv. SOF, ¶ C.4.l) Contractor
Customer Service Ride Worksheets, as well as customer complaints or comments about Plaintiffs’
performance, were kept in files FedEx maintained on its drivers. (Plaintiffs' Omnibus Ex. 36)
FedEx reviewed Plaintiffs’ overall operations, package “flexing,” customer complaints,
problem solving, as well as aspects of each Plaintiff’s performance, through “Business Discussions.”
(Plaintiffs' Omnibus Exs. 18, 46; Plaintiffs’ Omnibus SOF, ¶¶ 25, 49) FedEx also required Plaintiffs
to prepare and submit an annual “business plan” outlining FedEx’s expectations of that Plaintiff and
providing a record of what FedEx and Plaintiffs had committed to do for the coming year. (Plaintiffs'
Omnibus Ex. 14; Plaintiffs' Indiv. SOF, ¶¶ C.4.b-c) Contract Termination Guidelines provided
direction to FedEx management on how to terminate an OA and retake control of Plaintiffs’ routes.
(Plaintiffs' Omnibus Exs. 15, 16 and 17)

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Plaintiffs also point to a number of FedEx programs they maintain were inconsistent with
independent contractor status, including the Contractor Time-Off Program, which permitted them
to buy time off each year from FedEx (Plaintiffs' Omnibus Ex. 37; Plaintiffs’ Indiv. SOF, ¶¶
C.3.c-d); a Maintenance Loan Program, which permitted ground delivery drivers to borrow money
from FedEx for specific maintenance repairs required on their vehicles (Plaintiffs' Omnibus Ex. 44);
and a plan through which a prospective contractor could purchase a vehicle through FedEx-approved
vendors and FedEx-approved financing institutions. (Plaintiffs' Omnibus Ex. 45) In addition, FedEx
provided Plaintiffs with bonuses based on performance and years of service. (Plaintiffs’ Indiv. SOF,
¶ E. 6; Plaintiffs’ Omnibus Exs. 14; 42)
Further, Plaintiffs identify several unwritten policies and procedures regarding FedEx control
through scanners, pick-up windows, delivery sequence, restrictions on route sales and management
contact during operation of routes. (Gray Mem. in Supp., pp. 25-27; Wells Mem. in Supp., pp. 2729) Plaintiffs were required to record a check-in and check-out time through their scanners.
(Plaintiffs' Indiv. SOF, ¶ C.2.e) FedEx management could track Plaintiffs’ progress because the
scanners tracked the time and location of each delivery or attempted delivery of each FedEx
package. (Plaintiffs' Indiv. SOF, ¶¶ C.2.e and C.4.i)
“Pick-up windows,” windows of time set by FedEx’s sales department during which
Plaintiffs were required to pick up certain packages, required Plaintiffs to be in a certain location
at a certain time. As a result, the timing of these pick-up windows dictated the scheduling and
sequence of delivery of each Plaintiff’s route. (Plaintiffs’ Omnibus SOF, ¶¶ 2, 64; Plaintiffs’ Indiv.
SOF, ¶¶ C.1.g, i, and I.10) FedEx ground drivers were required to pick up packages at various
locations on their route at specified times, and often later than 5:00 p.m. (Plaintiffs' Indiv. SOF, ¶¶
C.1.g, G.1 and I.10).

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Ground drivers’ delivery trucks were loaded for them at FedEx terminals before they left
each morning on their routes. (Plaintiffs' Indiv. SOF, ¶¶ C.1.j, C.3.e, C.4.j-k, and I.4-8) Plaintiffs
played no role in the loading procedure, which effectively dictated their routes since the trucks had
to be unloaded in reverse order. (Plaintiffs' Omnibus SOF, ¶ 56; Plaintiffs' Indiv. SOF, ¶¶ C.1.j,
C.3.e, C.4.k, and I.7, 9) Plaintiffs who drove for the home division were responsible for loading their
own vehicles (Plaintiffs' Omnibus SOF, ¶ 60; Plaintiffs' Indiv. SOF, ¶¶ I.8 and I.9); however, FedEx
provided them with explicit “turn-by-turn” directions which they were expected to follow on a daily
basis. (Plaintiffs’ Omnibus SOF, ¶ 60)
Plaintiffs’ departure times were also controlled by FedEx terminal management. In many
cases, when trucks delivering packages from FedEx “hubs” were late in arriving at the terminals,
resulting in delays in loading Plaintiffs’ vehicles, Plaintiffs were kept at the terminals and not
allowed to depart until after 10:00 a.m. (Plaintiffs' Indiv. SOF, ¶ C.3.b)
Plaintiffs were not permitted to sell their routes without prior approval from FedEx.
(Plaintiffs' Individual SOF, ¶¶ G.5 and H.4) Likewise, FedEx threatened to take Plaintiffs’ routes
away on a number of occasions for various reasons. (Plaintiffs’ Indiv. SOF, ¶ H.2)
In response, FedEx argues that Plaintiffs have no evidence that the substance of these
policies and procedures were actually followed by FedEx management given the testimony of
FedEx’s terminal managers that the OA controlled their interaction with contractors and that the
policies and procedures were considered reference materials only. (Gray Doc. No. 158; Wells Doc.
No. 279 (“Consol. Opp.”), pp. 15-16) Further, even if the policies and procedures had been followed
by management, FedEx contends they are not evidence of control over the means and manner of
Plaintiffs’ work. (Id., pp. 18-22) Many of these policy documents relate to efforts to comply with
federal regulations and are not evidence of control for that reason. See, K&D Auto Body, 171
W.W.3d 106. Other policies relate to results that Plaintiffs promised to provide under the OA, i.e.,
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providing a “suitable” vehicle (OA, ¶ 1.1) and presenting “a consistent image and standard of
service to customers.” (OA, ¶ 1.12) Policies pertaining to service standards go to the results the
contractors agreed to provide under the OA, and not to the manner and means of performance.
Intermittent monitoring of the results of a contractor’s work, such as the “customer service rides,”
does not create an employee relationship. See State ex rel. MW Builders, Inc. v. Midkiff, 222
S.W.3d 267, 271-72 (Mo. 2007) (determining that sub-contractor was an independent contractor
even though general contractor visited construction site weekly to review progress and see whether
work and results conformed to architectural plans). Resulting feedback from FedEx was in the form
of “suggestions” and not tantamount to the actual exercise of control. See also Williamson v. SW
Bell Tel. Co., 265 S.W.2d 354, 359 (Mo. 1954) (“[I]t is necessary to distinguish between
authoritative direction and control and mere suggestion as to details.”). (Consol. Opp., pp. 20-21)
Plaintiffs reply that the reasons for an employer’s control and supervision over its workers,
such as service standards and customer demands, are not relevant to the determination of
employment status. (Gray Doc. No. 308; Wells Doc. No. 181 (“Plaintiffs’ Consol. Reply”), pp. 1213) Plaintiffs also point to the deposition testimony of a number of FedEx terminal managers, and
Policy 007 itself, which specifically states that managers could be terminated for not following such
policy and the procedures promulgated under it. (Plaintiffs’ Consol. Reply, p. 10, citing Plaintiffs’
Omnibus Ex. 27, p. 3; FedEx Rule 30(b)(6) Depo. 29:12-31:14; Kanter Depo. 66:16-67:22,
68:11-69:21, 124:7-125:19, 127:12-130:12, 137:7-18, 145:10-146:3, 168:3-7, 184:19-23, 208:12-14,
218:5-219:6, 228:13-230:8; Peters Depo. 70:14-71:13, 73:12-74:13; Wallace Depo., 74:10-17).
After reviewing the terms of the OA with reference to the affidavits and deposition testimony
of Plaintiffs and FedEx managers and other evidence presented, the Court finds that both the extent
of control and actual exercise of control factors weigh in favor of employee status. FedEx screened
potential drivers and trained them in the most fundamental aspects of their jobs, such as courteous
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treatment of the FedEx customers, where to leave a package, and whether to obtain a customer’s
signature on a package. Similar evidence of control over hiring and training has been found to
support a reasonable inference that FedEx had a right to control its drivers’ performance. See,
Huggins, 592 F.3d at 858. Plaintiffs were doing business in FedEx’s name, wearing the FedEx
uniform, and driving vehicles with FedEx logos. The right to determine and enforce driver and
vehicle appearance and vehicle suitability standards also favors employee status. In re FedEx
Ground Package System, Inc. Employment Practices Litigation, 869 F.Supp. 2d 942, 980 (N.D. In.
2012). Plaintiffs operated with the assistance and guidance of FedEx. FedEx assigned the routes,
established times of pick-ups and deliveries, and provided loading, sales and customer service
operations. FedEx audited Plaintiffs’ compliance with its standards through customer service rides.
“Daily assignments” demonstrates control indicative of employee status, as does the monitoring of
Plaintiffs’ workloads and consequent reconfiguring of their routes. Burgess v. NaCom Cable Co.,
923 S.W.2d 450, 454 (Mo.Ct.App. 1996) (periodic communication with installer by radio dispatch
throughout the day is a clear emblem of control and scheduling benefit to cable company). See also
Williams v. Sodexho Operations, LLC, 2009 WL 2592312, at *3-4 (E.D. Mo. Aug. 20, 2009)
(authority and promulgation of standards for supervision and performance reviews demonstrates
control). In addition, FedEx provides programs to decrease insurance cost and vehicle maintenance,
as well as performance based incentives such as the CCS bonuses, the Service Guarantee Program
and the HR-10 defined contribution plan. (OA, ¶¶ 8, 10) Such incentives are also indicative of
employee status.
(3) Duration of employment
Independent contractors are typically hired by the job to complete a specific task. State ex
rel. Sir v. Gateway Taxi Management Co., 400 S.W.3d 478, 486 (Mo.Ct.App. 2013). Plaintiffs argue
that none of them were hired by the job; rather they were hired by the year(s), which is the direct
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opposite of independent contractor status, citing Nunn, 151 S.W.3d at 401 (truck driver was an
“employee” rather than an independent contractor, for purposes of workers compensation, where
he worked continuously for two years and so was not hired for just one job). The OAs provide for
terms of one, two or three years and automatically renew if there is no notice of non-renewal. (OA,
¶ 11; Plaintiffs’ Indiv. SOF, ¶ F.1) This factor weighs in favor of employee status. Moreover, while
the OA does not necessarily contemplate a long-term relationship, In re FedEx, 869 F.Supp. 2d at
984, many of the Plaintiffs worked for FedEx for several years, and their OAs were automatically
renewed. (Plaintiffs’ Indiv.SOF, ¶ A.1) The length and indefinite nature of the Plaintiffs’ tenure
with FedEx also points to an employment relationship. See, Narayan v. EGL, Inc., 616 F.3d 895,
903 (9th Cir. 2010).
.

(4) Right to discharge
The inability to terminate a worker at will supports independent contractor status. In re

FedEx, 869 F.Supp.2d at 986 (citing McDonnell v. Music Stand, Inc., 886 P.2d 895, 899
(Kan.Ct.App. 1994). FedEx maintains it cannot unilaterally terminate its relationship with Plaintiffs;
rather, FedEx can only terminate the OA without the contractor’s consent in limited circumstances,
such as if the contractor breaches the terms of the agreement. (OA, ¶¶ 3(a), (b), 12.1, 12.3). Further,
if a contractor disputes his termination, the OA provides that the dispute can be submitted to
arbitration. (OA, ¶¶ 12.1, 12.3) FedEx observes that Missouri courts have found that less restrictive
termination provisions favor independent contractor status. (Consol. Opp., p. 30, citing Kirksville
Pub’g Co. v. Div. of Emp’t Sec., 950 S.W.2d 891, 899 (Mo. Ct. App. 1997) (holding that the right
to discharge factor supported contractor status even though the company was only required to
provide thirty days’ notice to discharge a motor carrier)).
Plaintiffs argue that even though the OA provides for termination with cause, there are no
limitations on the grounds for non-renewal of the OA. (OA, ¶ 11) Plaintiffs assert that FedEx told
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many of them that they either had to sell their routes or FedEx would send their contracts up for
non-renewal or termination and take their routes away from them. (Plaintiffs' Indiv. SOF, ¶¶ H.1,
2) A number of the Wells Plaintiffs were either non-renewed or terminated by FedEx. (Plaintiffs'
Indiv. SOF, ¶¶ H.3-4). Based on an identical OA, the California Court of Appeals in Estrada v.
FedEx Ground Package System, Inc., 154 Cal.App. 4th 1 (Cal.App. 2007), concluded the drivers
could be terminated “at will. Id. at 9. See also Narayan, 616 F.3d at 903 (contract signed by plaintiff
drivers which contained automatic renewal clauses and could be terminated by either party upon
thirty-days notice or upon breach of the agreement, is a substantial indicator of an at-will
employment relationship). This factor weighs in favor of employee status.
(5) Method of Payment
“Independent contractors are typically . . . paid a fixed sum on a by-the-job basis.” Gateway
Taxi, 400 S.W.3d at 486 (quoting Midkiff, 222 S.W.3d at 270 ). Plaintiffs were paid weekly based
on certain non-negotiable factors, including stops made, packages handled, and distance traveled,
after deductions for the Business Support Package, insurance and other items paid by FedEx. (OA,
¶ 4.1, 4.2; Plaintiffs' Indiv. SOF, ¶¶ E.1-7, F.1-3; Plaintiffs' Omnibus Exs. 5, 8, 19-20, and 42)
Plaintiffs argue that FedEx’s pay formula is a “piecework system” and not “payment by the job.”
(Mem. in Supp., pp. 31-32) FedEx responds that Plaintiffs are paid regardless of whether they
perform the work or hire others to do so, which is not a common method of paying employees.
(Consol. Opp., pp. 28-29)
Although their settlements were based in part on deliveries made, Plaintiffs were paid on a
regular basis. The fact they were paid this way is consistent with an employee relationship,
particularly where other indicia of employment are present. See, Narayan, 616 F.3d at 904. The fact
that compensation rates were not negotiated (Plaintiffs' Indiv. SOF, ¶ E.2) also weighs in favor of

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employee status. See, In re Fed Ex, 869 F.Supp.2d at 896 (citing Lewis v. ASAP Land Express, Inc.,
554 F.Supp.2d 1215, 1225 (D.Kan. 2008)).
(6) The degree to which FedEx furnished equipment
That a worker supplies his own tools is some evidence that he is not an employee. In re
FedEx, 869 F.Supp.2d at 985 (citing Restatement (Second) of Agency, § 220 cmt. k (1958); see also
Gateway Taxi, 400 S.W.3d at 486. Although Plaintiffs provide their own trucks and equipment,
FedEx is intricately involved in the purchasing process, providing funds and recommending vendors.
See, Estrada, 154 Cal.App. 4th at 9. As discussed above, FedEx requires Plaintiffs to have FedEx
uniforms, scanners, printers, and communications-related equipment, and provides them an option
of purchasing or renting through its Business Support Package. (OA, ¶ 7) Plaintiffs argue that all of
this equipment was used during their service to FedEx, which was integral to FedEx’s business.
Where a worker uses “equipment in a continuous service integral to the business, a factual inference
of employment arises.” Miller, 714 S.W.2d at 657. (Mem. in Support, pp. 31-34) In addition, the
undisputed facts demonstrate that FedEx provides the entire system of receiving, sorting, and
loading packages. It supplies contractors with software and a computer network for tracking
packages and provides terminals and sorting equipment for packages, sales and marketing services,
and customer service personnel. (Plaintiffs' Omnibus SOF, ¶¶ 51-57; Plaintiffs' Indiv. SOF, ¶¶
I.1-13). This factor weighs in favor of employee status.
(7) The extent to which the work is the regular business of FedEx
There is no dispute that the work of FedEx package delivery drivers is the essence of the
business of a package delivery company such as FedEx. This factor clearly weighs in favor of
employee status. Burgess, 923 S.W.2d at 454 (finding employee status where defendant would have
no business purpose if the work of the plaintiff did not occur).
(8) The employment contract
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The OA states the parties’ intent to create an independent contractor agreement. (“Both
FedEx . . . and Contractor intend that Contractor will provide these services strictly as an indpendnet
contractor , and not as an employee of FedEx for any purpose. (OA, Background Statement) In
several provisions, the OA says FedEx directs the results, but not the manner and means, of the
Plaintiffs’ work. (OA, ¶ 1.15) More specifically, the OA provides that FedEx cannot “prescribe
hours of work, whether or when the Contractor is to take breaks, what route the Contractor is to
follow, or other details of performance.” (Id.)
The contractual designation of the work status of a person is not conclusive for purposes of
determining whether he is an employee or an independent contractor, when there is evidence to
overcome such designation. Nunn, 151 S.W.3d at 401. See also, Williams, 2009 WL 2592312, at
* 3-4 (the mere characterization in a contract of a party as an independent contractor is not
controlling, especially when other contractual provisions evidence control); Burgess, 923 S.W.2d
at 454 (holding that the plaintiff was an employee of the defendant and “declin[ing] to permit the
reality of that status to be obscured by illusory formalities” in the employment contract). Simply
characterizing a party as an independent contractor does not make it so; rather, a court must make
a factual determination of independent contractor status. Sakabu v. Regency Const. Co., 2012 WL
4497650, *3 (Mo.Ct. App. Oct. 2, 2012) (citing Empson v. Mo. Highway and Transp. Comm’n, 649
S.W.2d 517, 521 (Mo. App. 1983)). As discussed above, the actual control exercised here by FedEx
over Plaintiffs establishes a different relationship.
Discussion
Huggins v. FedEx, 592 F.3d 853, is the only Missouri case to address the employment status
of FedEx drivers.6 In Huggins, the plaintiff, who was riding with Esteban Gutierrez, a FedEx line

6

To date, FedEx drivers in California, Illinois, Massachusetts, Kentucky, Nevada and
New Hampshire have been classified as employees under that state’s law. See Estrada, 154
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haul truck driver, sought to recover against FedEx for injuries he sustained in a car accident under
respondeat superior liability. FedEx moved for summary judgment, arguing it did not retain a right
under the “Linehaul Contractor Operating Agreement ”to control the “means and methods” of
Gutierrez’s work. 592 F.3d at 858. The district court granted summary judgment to FedEx, based
on provisions of the operating agreement which stated that the parties “intend” that the driver “will
provide [its] services strictly as an independent contractor, and not as an employee of [FedEx] for
any purpose,” and will “direct the operation of the Equipment and ... determine the methods, manner
and means of performing the obligations specified in the Agreement.” Id.
The Eighth Circuit reversed after examining the agreement and determining that FedEx had
retained the right to control at least some of the “means and methods” of the work. Id. at 859. In
particular, the agreement provided that the drivers performed work that was “part of the regular
business” of FedEx. Drivers were required to look and act like FedEx employees while they
performed FedEx services. Drivers were required to wear a FedEx-approved uniform and mark their
vehicles with FedEx insignia. In a section addressing customer service, the agreement states that
FedEx will “familiarize” drivers “with various quality service and safety procedures developed by
[FedEx],” supporting an inference that the drivers were required to follow FedEx's procedures.
FedEx also reserved the right to monitor drivers’ safety practices; FedEx terminal personnel, “at
their option,” were permitted to “take a ... safety ride with contractor [or presumably the contractor's
driver] to verify” compliance with standards in the agreement. Furthermore, drivers had to submit
daily fuel receipts and daily shipping documents to FedEx. They also organized and returned
undeliverable packages to FedEx, and drivers agreed to provide FedEx with “advance notice of

Cal.App.4th 1; In re FedEx Ground Package System, Inc. Employment Practices Litigation, 2010
WL 2243246 (N.D. Ind. May 28, 2010); Schwann v. FedEx Ground Package System, Inc., 2013
WL 3353776 (D. Mass. July 3, 2013); In re FedEx Ground, 758 F.Supp.2d 638 (N.D. Ind. 2010).
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routes to be taken for each linehaul movement” and “a state by state mileage report” for interstate
package and delivery movement. The agreement also lists certain bases for “driver disqualification,”
including failure to pass or submit to a drug or alcohol test that FedEx may administer “at such time
and place and in such manner as determined by [FedEx] or its designees,” as well as failing to obtain
a federally-required physical certification issued by a FedEx-approved medical examiner. If an
alleged act or omission would constitute a criminal offense, FedEx, “in its sole discretion,” “may
make a preliminary determination of the probability that [a driver] is guilty of [an] offense whether
charged or not.” Id. at 859-60.
The Court also focused on evidence offered by Huggins including a “record of Strength
Test,” a “Fair Credit Reporting Act Disclosure Statement,” and a drug testing form, all of which
supported an inference that FedEx participated in deciding whether Gutierrez would be hired. Id.
at 861. While acknowledging there was record evidence tending to show that Gutierrez was an
independent contractor, the Court in Huggins went on to state that “we believe that the
evidence—including the terms of the written agreement, Mr. Huggins's declaration, and the
documents showing that FedEx tested Mr. Gutierrez and checked into his background before he was
hired—would support a reasonable inference and thus a jury finding that FedEx had a right to
control his performance and was his employer for respondeat superior purposes. Id.
Based on an identical OA, the California Court of Appeals in Estrada, 154 Cal.App.4th 1,
held that FedEx drivers who serviced a single work area were employees rather than independent
contractors under California law. The evidence showed that the drivers’ ability to use their
equipment for independent purposes was “more imagined than real,” id. at 333 n. 5; that “drivers
and their trucks are subject to inspection every day ... and if either fails inspection, the driver may
be barred from service,” id. at 333; that “FedEx discharges drivers at will,” id. at 336; and that
FedEx exercises “control over every exquisite detail of the drivers' performance, including the color
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of their socks and the style of their hair.” Id. The court found the drivers’ right to control their own
routes and schedules was illusory because they were “constrained by customer pick up and delivery
windows contracted by the [FedEx] sales force” and by FedEx’s paperwork requirements that
required the drivers’ presence at the terminal. Id. at 333-334. In sum, the court found the Operating
Agreement to be “a brilliantly drafted contract creating the constraints of an employment
relationship with [the drivers] in the guise of an independent contractor model.” Id. at 334. See also
Air Couriers Int’l v. Employment Dev. Dep’t., 150 Cal.App.4th 923 (2007) (affirming finding of
employee status for employment tax purposes where package delivery company retained all
necessary control over the overall delivery operation, the work was simple, the workers weren’t
engaged in a separate profession or operating an independent business, and the delivery work was
an integral aspect of the courier’s business.)
While other courts have reached different conclusions, these cases are not dispositive,
particularly in light of Huggins. In Johnson v. FedEx Home Delivery, 2011 WL 6153425 (E.D.N.Y.
Dec. 12, 2011), for example, the Eastern District of New York held on summary judgment that the
plaintiff delivery drivers were independent contractors under New York law. Because the plaintiffs
did not file any opposition to FedEx’s motion for partial summary judgment, the court concluded
there was insufficient evidence on the record to create a genuine dispute on the issue whether the
plaintiffs were employees or independent contractors, but clarified that its holding did not mean that
such evidence did not exist. Id. at *46.
In FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C.Cir.2009), the District of Columbia
Circuit held that FedEx single route drivers were independent contractors under the National Labor
Relations Act. Unlike the “right to control” test for determining employment status in Missouri, in
this case the court focused on the worker’s right to engage in entrepreneurial activity, and
specifically the drivers’ “ability to operate multiple routes, hire additional drivers (including drivers
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who substitute for the contractor) and helpers, and to sell routes without permission, as well as the
parties’ intent as expressed in the contract.” Id. at 504. See also Anfinson v. FedEx Ground Package
System, Inc., 244 P.3d 32 (Wash.App. Div. 1 Dec. 20, 2010), which held that the test for
determining whether FedEx delivery drivers are independent contractors or employees is not
whether FedEx had the “right to control” the workers, but rather, the “economic reality” of the
working relationship.
Conclusion
After carefully considering the facts of record in the light most favorable to FedEx, the Court
concludes that FedEx had the right to control and did control the means and manner of Plaintiffs’
work to such an extent that they were employees of FedEx and not independent contractors.
Plaintiffs were required to foster the professional image and reputation of FedEx by wearing the
approved uniform and complying with personal appearance standards. FedEx required Plaintiffs’
vehicles to meet certain specifications, to be painted “FedEx White,” and to be marked with the
FedEx logo and insignia. While governmental regulations may “furnish reasons for at least part of
the control exercised” over driver and vehicle appearance and vehicle suitability standards, FedEx’s
requirements have been found to go beyond federal regulations. See In re FedEx, 869 F.Supp.2d at
980. Thus, FedEx’s right to control Plaintiffs’ personal appearance, as well as the appearance and
suitability of their vehicles, weighs in favor of employee status. Id. See also Burgess, 923 S.W.2d
at 453.
FedEx controlled Plaintiffs’ PSAs. Plaintiffs actually received their route assignments from
FedEx, rather than finding their own work. Such “daily assignments” demonstrate control that is
indicative of employee status. See, Burgess, 923 S.W.2d at 453 (“Independent contractors generally
find their own work rather than pick up daily assignments.”). In addition, FedEx controlled
Plaintiffs’ daily workloads by flexing and reconfiguring their PSAs as it saw fit.
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FedEx controlled the services Plaintiffs must provide for its customers, prices charged for
those services, and customer service standards that drivers must meet. Fed Ex also retained the right
to determine some time parameters for providing service to its customers. Drivers must work certain
days of the week, deliver all packages assigned to them that day based on a nine to eleven hour work
day and, on occasion, meet pick-up and delivery windows. While Plaintiffs may exercise discretion
in selecting how to travel their assigned route, they were required to make daily pickups and
deliveries on specific days and times due to FedEx’s agreements with its customers. All of this
weighs in favor of employee status.
FedEx monitored and disciplined Plaintiffs to control the work process. Supervisors or
managers conducted “customer service rides” with drivers up to four times annually “to verify that
the Contractor is meeting the standards of customer service provided in the Agreement,”and
reviewed expectations through business discussions. Authority and promulgation of standards for
supervision and performance review shows control and is indicative of employee status. Williams,
2009 WL 2592312, at *3-4.
In addition to the “extent of control” and “actual control” factors of the eight factor test, the
remaining six factors also weigh in favor of employee status. Many of the Plaintiffs had long-term
relationships with FedEx, demonstrating that they were not hired by the job. Plaintiffs could
effectively be terminated at will given that the OA provides for nonrenewal without cause. Plaintiffs
were not paid by the job like independent contractors. Instead, they were paid weekly, based on
fixed and variable factors, all of which were non-negotiable. Although Plaintiffs provided their own
vehicles and some equipment, FedEx was intricately involved in the purchasing process, providing
options for leasing and/or financing. Moreover, FedEx provided the entire system of receiving,
sorting and loading packages, software and computer network for tracking packages, terminals and
sorting equipment for packages, sales and marketing services, and customer service personnel.
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Finally, Plaintiffs’ work is the essence of the business of a package delivery company such as
FedEx.
FedEx is correct that a worker’s ownership interest in his route is inconsistent with any
traditional understanding of employment. Skidmore, 110 S.W.2d at 730. Here, however, none of the
Plaintiffs actually “owned” their routes. Customer accounts were based on contracts between FedEx
and the customers. FedEx set up any new business brought to Plaintiffs’ routes. Drivers could not
increase their compensation through soliciting new customers. (Plaintiffs’ Indiv. SOF, ¶ C.k,l)
Plaintiffs could only sell their routes to purchasers approved by FedEx. (Id., ¶ G.5). Further,
Plaintiffs could only buy routes once they were approved by FedEx. In addition, FedEx could
unilaterally change the size and configuration of the Plaintiffs’ routes at any time without Plaintiffs’
approval. (Plaintiffs’ Omnibus SOF ¶ 14; Plaintiffs’ Indiv. SOF ¶ G.2) All of the Plaintiffs either
sold their routes to a purchaser approved by FedEx, were forced to sell their routes to a purchaser
approved by FedEx, or were either terminated or non-renewed by FedEx, in which case, FedEx took
their routes. (Gray and Wells Plaintiffs’ Opp. Affs., ¶12; Plaintiffs’ Indiv. SOF ¶¶ G.5, H.3, H.4)
For all these reasons, Plaintiffs’ motion for partial summary judgment on the issue of
employment status will be granted.
C. FedEx Ground Package System, Inc.’s Consolidated Motion for Summary Judgment
FedEx moves for summary judgment on all Counts of Plaintiffs’ Sixth Amended Complaint
in Gray: Fraudulent Misrepresentation (Count I) and Claims for Wages Under Sections 290.527 and
290.505, R.S.Mo. (Count II), and all Counts of Plaintiffs’ Amended Complaint in Wells: Illegal
Deductions from Wages (Count I), Fraudulent Misrepresentation (Count II), Rescission (Count III),
and Declaratory Judgment (Count IV).
(1) Fraudulent Misrepresentation

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All Plaintiffs allege that FedEx committed fraud by misrepresenting to them in the OA that
they would be independent contractors when they were in fact treated as employees. The Gray
Plaintiffs also allege that similar oral misrepresentations were made to them by members of FedEx
terminal management. (Gray Compl. ¶ 47). Plaintiffs claim that FedEx knew or should have known
“that the ‘independent contractor’ classification in the OA was improper and that Plaintiffs were
‘employees’ … [and] through the Operating Agreement … intentionally misled the Plaintiffs as to
their employment status.” (Gray Compl. ¶ 46; Wells Compl. ¶ 48). Plaintiffs allege that as a direct
and proximate result of FedEx’s misrepresentations, they were harmed by having to “assume
responsibility for all employment-related expenses” and by otherwise being denied other alleged
“benefits of employment.” They also allege they were harmed by being deprived of “the freedom
to operate their business as they see fit, and to run the risks and rewards of owning a business.”
(Gray Compl. ¶¶ 31, 49, 52, 53; Wells Compl. ¶¶ 32, 51).
FedEx argues Plaintiffs’ fraud claims fail as a matter of law because they cannot prove
proximately caused injury and because the alleged misrepresentations are not actionable statements
of fact. In addition, FedEx argues that 21 of the Plaintiffs’ claims are untimely. (Gray Doc. No. 214;
Wells Doc. No. 123 (“Consol. Mem. in Supp.”), p.11)
(a) Proximately caused injury/measure of damages
While the Court has ruled herein that Plaintiffs were FedEx employees as a matter of law,
Plaintiffs must still show that FedEx’s representation that they were independent contractors was
the direct and proximate cause of their loss. FedEx argues Plaintiffs’ fraud claims fail because the
harm they claim to have suffered was not caused by the misrepresentations they allege. ( Consol.
Mem. in Supp., pp. 13-19) Here Plaintiffs are trying to recover the value of what they conferred to
FedEx, measured by what they would have been paid if they were employees. (Id., pp. 14-16)
According to FedEx, if Plaintiffs had been treated as independent contractors, they would have
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borne the same expenses and would not have earned overtime pay or other employment benefits.
In sum, when the same loss would have occurred in the absence of the misrepresentation, the
causation element of a fraud claim is lacking and a claim for fraud fails. See First Franklin Fin.
Corp. v. Residential Title Servs, Inc., 2009 WL 1508784 (E.D. Mo. May 28, 2009); First Bank of
Marietta v. Hogge, 161 F.3d 506 (8th Cir. 1998); Mackey & Associates, Inc. v. Russell & Axon
International Engineers-Architects, Ltd., 819 S.W.2d 49 (Mo.Ct.App. 1991).
In response, Plaintiffs rely on the Restatement (Second) of Torts, § 548A, which states that
“[a] fraudulent misrepresentation is a legal cause of a pecuniary loss resulting from action or
inaction in reliance on it if, and only if, the loss might reasonably be expected to result from the
reliance.” (Gray Doc. No. 293; Wells Doc. No. 173 (“Rev. Mem. in Opp.”), p. 11)
The Court previously addressed this argument in its order denying FedEx’s motion to dismiss
the Sixth Amended Complaint in Gray. (Doc. No. 152, p. 8) Whether expressed in the form of lost
pay, or increased and unnecessary expenses, Plaintiffs’ alleged damages clearly flow from FedEx’s
misrepresentations.
In addition, FedEx challenges Plaintiffs’ theory of damages as not based on the benefit of
the bargain or lost profits analysis. See Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. 1988)
(“The courts of this state are committed to the benefit of the bargain rule as a method of arriving at
damages in a case of fraud.”). FedEx contends that based on the undisputed evidence, Plaintiffs
cannot establish lost profits sufficient to support recovery of damages for their loss. (Consol. Mem.
in Supp., pp. 16-19)
Plaintiffs respond that they are not proceeding on a benefit of the bargain theory. Instead,
they are seeking general damages, the difference between what they received and the true value of
what they gave, as well as other losses suffered from their reliance on FedEx’s misrepresentations,
including benefits. (Rev. Mem. in Opp., pp. 12-13) In Emerick v. Mutual Ben. Life Ins. Co., 756
- 30 -

S.W.2d 513 (Mo. 1988), the Missouri Supreme Court stated that “[t]he damages recoverable
represent the pecuniary loss to the recipient of the misrepresentation of which the false statement
is a ‘legal cause,’ i.e., the loss reasonably expected to stem from reliance upon the representation.
Id. at 521 (citing Restatement (Second) of Torts §§ 548A, 549). The Restatement (Second) of Torts,
§549 sets forth the measure of damages for fraudulent misrepresentation as follows:
(1) The recipient of a fraudulent misrepresentation is entitled to recover as damages
in an action of deceit against the maker the pecuniary loss to him of which the
misrepresentation is the legal cause, including:
a. the difference between the value of what he has received in the transaction and its
purchase price or other value given for it; and
b. pecuniary loss suffered otherwise as the consequence of the recipient’s reliance
upon the misrepresentation.
The most common method of determining damages is to assess the difference between what the
plaintiff received and the value given for what he received. These are usually called “general
damages.” See Restatement (Second) of Torts, Comment (a) on subsec. (1). (Rev. Mem. in Opp.,
pp. 12-13)
As further support for their position, Plaintiffs noted at oral argument that Missouri law
expressly permits the use of the generalized damages instruction, MAI 4.01, as opposed to MAI
4.03, the benefit of the bargain instruction, when the parties have clearly presented the nature of the
dispute as to damages. See Central Microfilm Service Corp. v. Basic/Four Corp., 688 F.2d 1206,
1220 (8th Cir. 1982); Craig Outdoor Advertising, Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001,
1015-16 (8th Cir. 2008). (Transcript of Oral Argument (“Tr.”), Gray Doc. No. 329;Wells Doc. No.
208, 45:10-46:23)
Although the primary measure of damages for fraud in Missouri is the benefit of the bargain,
the use of other measures of damages are permitted when the benefit of the bargain rule does not
accurately measure the loss sustained. Glass Design Imports, Inc. v. Import Specialties, 867 F.2d
- 31 -

1139, 1143 (8th Cir. 1989) (citing Central Microfilm, 688 F.2d at 1220); Kerr v. First Commodity
Corp., 735 F.2d 281, 285 (8th Cir. 1984)).The “bargain theory” measure is the difference between
the actual value and the represented value of the subject of the transaction. Central Microfilm, 688
F.2d at 1220 (citing Smith v. Tracy, 372 S.W.2d 925, 938 (Mo. 1963)). In this case, FedEx did not
make representations as to specific values; rather, it induced Plaintiffs to work as employees without
the benefits inherent in an employer/employee relationship. The resultant harm is best measured by
what Plaintiffs should have been paid as opposed to what they were actually paid. Id. at 1220-21.
Accordingly, Plaintiffs have presented a submissible case on the issue of damages related to their
fraud claims sufficient to defeat summary judgment.
(b) Actionable statements of fact
Next, FedEx argues that because the legal standard for determining employment status
requires consideration of numerous factors, the alleged misrepresentations regarding Plaintiffs’
status as independent contractors are not actionable statements of fact. Constance v. B.B.C. Dev.
Co., 25 S.W.3d 571, 587 (Mo.Ct.App. 2000) (“The generally recognized distinction between
statements of fact and opinion is that whatever is susceptible of exact knowledge is a matter of fact,
while that not susceptible is generally regarded as an expression of opinion.”) (Consol. Memo. in
Supp., pp. 19-22) The Court has ruled, based on the undisputed facts of record, that Plaintiffs were
employees of FedEx and not independent contractors. Thus, the ‘independent contractor’
classification in the OA, as well as the statements made by FedEx terminal management that
Plaintiffs would be independent contractors, able to manage their own businesses and be their own
bosses, are misrepresentations of existing fact and properly the subject of their fraud claims.
(c) Statute of limitations

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Fed Ex further argues that the fraud claims of 11 of the 14 Wells Plaintiffs7 and 10 of the 24
Gray Plaintiffs8 are governed (and barred) by the five year statute of limitations in Mo.Ann.Stat.
§516.120(5), plus an additional one year and 27 days of tolling during the period when the motion
for class certification was pending in the MDL litigation in Gray. This assumes Plaintiffs may not
have known, or been able to discover, the basis for their claim until they had been contractors for
six months. (Consol. Mem. in Supp., pp. 22-23) FedEx contends that Plaintiffs were required to
bring their claims within five years of when they discovered, or should have discovered, the falsity
of the representation that they would be independent contractors, i.e., that they were in fact being
treated as employees. Burr v. Nat’l Life & Accident ins. Co., 667 S.W.2d 5, 7 (Mo.Ct.App. 1984)
(“A cause of action for fraud accrues [and the statue of limitations starts running] at the time the
defrauded party discovered or in the exercise of due diligence, should have discovered the fraud.”)
FedEx relies on Plaintiffs’ own allegations of control over them by FedEx, many based on terms in
the OA, including the appearance, uniform and branding “requirements,” all of which FedEx
contends were known or discoverable by Plaintiffs at the outset of their relationship with FedEx.
(Consol. Mem. in Supp., pp. 22-23)
Plaintiffs respond that there is no statute of limitations issue for those who filed within five
(5) years of their start date, namely Gray Plaintiffs Baker, Blackmon, Gray, Hill, Holmes, Huskic,
Tenison, Tichenor, and Tucker, and Wells Plaintiffs Cook and Miller. (Rev. Memo. in Opp., p. 20)
In further response, Plaintiffs maintain that the accrual dates of the fraud claims of Gray
Plaintiffs Austin, Brown, Jost, Pour, Sanders, Sheffer, and Waweru, and the remaining Wells
Plaintiffs can be determined with accuracy and are not barred by the five-year statute of limitations.

7

Adams, Borders, Bowden, Dees, Fickbohm, Jacobson, Moore, Smith, Svitak, Taube,

Wells
8

Arbutti, Austin, Brown, Hendricks, Jost, McClain, Pour, Sanders, Sheffer, Waweru
- 33 -

Austin started his employment with FedEx on September 18, 2000 and became a plaintiff on
September 30, 2008. He testified on deposition that he realized he was not an independent contractor
when FedEx would not permit him to add an additional route in either 2003 or 2004. (Austin Depo.,
185:5-25; 186:1-25; 187:1-21) Brown was employed by RPS in 2000 when FedEx purchased the
company. Thereafter, Brown was employed by FedEx as a ground pick-up and delivery driver from
2000-2003, and a home delivery driver from April 17, 2003 through November 8, 2006. He became
a plaintiff on September 30, 2008.9 Brown testified he first realized he was not an independent
contractor when FedEx took control of his business in December 2005. (Brown Depo., 356:1-25;
357:1-5) Jost was employed by RPS in 2000 when FedEx purchased the company and became a
plaintiff on September 30, 2008. He testified that he knew he was not self-employed when FedEx
unilaterally terminated his OA in 2003. (Jost Depo., 104;22-25; 105:1-11; 106:1-17) Pour was a
driver for RPS when FedEx purchased the company in 2000 and became a plaintiff on September
30, 2008. He testified that he began to believe that FedEx’s representations that he would be an
independent contractor were not true “as the years progressed” during his employment with FedEx
and that FedEx’s control over him would “escalate” every year. (Pour Depo., 85:5-25; 86:1-10) Pour
further testified that he knew he was not an independent contractor at the end of 2004 when he was
injured and FedEx told him he would have to figure out a way to run his route or lose it. (Pour
Depo., 86:11-25; 87:1-15; 88:1-11) Sanders started with FedEx on November 27, 2001 and became
a plaintiff on September 30, 2008. He testified there was a point right before he left in November
2003 when he began to understand that he was not in control of his route and business. Sheffer
started with FedEx in 2000 and became a Plaintiff on September 20, 2008. He testified he knew the
representations made by FedEx were false when he was forced to pick-up packages at Kinko’s or

9

Brown is only seeking damages from and after the date he became a driver for the home
division.
- 34 -

face cancellation of his OA in 2005 or 2006. (Sheffer Depo., 107:25; 108:1-23) He further testified
he began to understand that Fed Ex’s representations that he would own his own business were false
“about halfway through his time at FedEx,” in approximately 2005. (Sheffer Depo., 111:1-13)
Waweru stated with FedEx on July 21, 2001 and became a plaintiff on September 30, 2008. He
testified that he knew he was not an independent contractor toward the end of 2003. (Waweru Dep.,
199:22-25; 200:1-11; 200:12-25; 201:1-25; 202:1-17; 202:18-25; 203:1-25; 204:1-18)
As for the remaining Wells Plaintiffs, Borders, Bowden, Dees, Fickbohm, Jacobson, Moore,
Smith, Svitak, Taube and Wells, all of them stated they “slowly became aware” of FedEx’s control
over the course of their employment. Once they realized the extent of that control, they sold their
routes. Specifically, Borders started with FedEx in October 2002 and ended on or about January
2006, when he sold his route. He became a plaintiff on November 3, 2010. (Borders Aff., ¶¶ 11-12;
Borders Depo., 188:17-189:3) Bowden started with FedEx in October 2003 and ended on or about
September 2006. He sold his route in 2006 and became a plaintiff on November 3, 2010. (Bowden
Aff., ¶¶ 11-12) Dees started with FedEx in January 2000 and ended on or about July 2006. He sold
his route in 2006 and became a plaintiff on November 3, 2010. (Dees Aff., ¶ 11-12) Fickbohm started
with FedEx in February 2004 and ended on or about November 2009. He sold his route in 2009 and
became a plaintiff on November 3, 2010. (Fickbohm Aff., ¶¶ 11-12) Jacobson started with FedEx in
July 2001 and ended on or about January 2006. He sold his route in 2006 and became a plaintiff on
November 3, 2011. (Jacobson Aff., ¶¶ 11-12) Moore started with FedEx in May 1999 and ended on
or about June 2006. He sold his route in 2006 and became a plaintiff on November 3, 2011. (Moore
Aff., ¶¶ 11-12) Smith started with FedEx in January 1998 and ended on or about April 2011. He sold
his route in 2011 and became a plaintiff on May 10, 2011, relating back to November 3, 2010, the
date of the original Wells complaint. (Smith Aff., ¶¶ 11-12) Svitak stated with FedEx in July 1998
and ended on or about February 2006. He sold his route in 2006 and became a plaintiff on May 20,
- 35 -

2011, which relates back to November 3, 2010. (Svitak Aff., ¶¶ 11-12) Taube started with FedEx in
2000 and ended on or about January 2010. He sold his route in 2010 and became a plaintiff on
November 3, 2010. (Taube Aff., ¶ 11-12) Wells started with FedEx on May 1991 and is still working
for FedEx. He became a plaintiff on November 3, 2010. (Wells Aff. ¶¶11-12)
Finally, Plaintiffs concede that for Gray Plaintiffs Arbutti, Hendricks, and McLain, it is
unclear when their causes of action accrued. (Rev. Memo. in Opp., p. 21) Plaintiffs take the position
that if there is any question as to whether their fraud clams were timely filed, then this is an issue of
fact to be submitted to a jury, citing Judy v. Arkansas Log Homes, 923 S.W.2d 409, 419 (Mo.
Ct.App. 1996) and Martin v. Holloran, 2008 WL 878420, at *8 (E.D. Mo. Mar. 27, 2008) (While
normally “the running of the statute [of limitations] is a question of law for the court to decide . . .
when contradictory or different conclusions may be drawn from the evidence as to whether the statute
of limitations has run, it is a question [of] fact for the jury to decide.”) (internal citations and
quotations omitted).
In reply, Fed Ex argues that Plaintiffs mistakenly argue that a subjective standard governs the
date of accrual of their fraud claims, when it is settled that a cause of action for fraudulent
misrepresentation accrues at the time the defrauded party discovers, or with the exercise of due
diligence, should have discovered the fraud. Graf v. Michaels, 900 S.W.2d 659, 661 (Mo.Ct.App.
1995). (Doc. No. 302, p. 8)
In Missouri, the limitations period does not begin to run at the time of the wrongdoing, but
when the damages from the wrong are incurred and are reasonably capable of being ascertained by
the injured party. Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (citing
Mo.Rev.Stat. § 516.100 (“[F]or the purposes of [§ 516.120], the cause of action shall not be deemed
to accrue when the wrong is done ... but when the damage resulting therefrom is sustained and is
capable of ascertainment.”). Missouri courts have interpreted this statute to mean the limitations
- 36 -

period commences when a “reasonably prudent person [is] on notice of a potentially actionable
injury.” Id. (quoting Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 582 (Mo.2006)).
Because this standard is objective, “where relevant facts are uncontested, the statute of limitations
issue can be decided by the Court as a matter of law. However, when contradictory or different
conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a
question of fact for the jury to decide.” Powel, 197 S.W.3d at 585 (citing Lomax v. Sewell, 1 S.W.3d
548, 552-53 (Mo.Ct.App. 1999); Straub v. Tull, 128 S.W.3d 157, 159 (Mo.Ct.App. 2004)).
Although many of the Plaintiffs were aware of certain aspects of FedEx’s control when they
signed the OA, such as the required uniforms and FedEx’s logo on their vehicles, it is their position
that they did not realize the true extent of FedEx’s control over their routes and businesses until later
in their employment. (Plaintiffs’ Opp. Affs., ¶¶ 10-11, attached to Plaintiffs’ Supp. Resp., Gray No.
294; Wells Doc. No 174). FedEx told Plaintiffs they would be independent contractors, and Plaintiffs
believed they would be independent contractors when signing the OAs, and signed the OAs based
upon that belief. (Plaintiffs’ Resp. SOF ¶ 5) For purposes of the Missouri statute of limitations, the
issue is when the amount of FedEx’s control over their activities reached a level that Plaintiffs
realized that they were employees and not independent contractors. According to Plaintiffs, this
moment in time is different for each of them.
The original six Gray Plaintiffs (Gray, Hill, Holmes, Patton, Tichenor and Tucker) filed their
complaint on March 6, 2006; the remaining Gray Plaintiffs joined the lawsuit on September 30, 2008
(Arbutti, Austin, Blackmon, Brown, Candela, Huskic, Jost, Mitchell, Pour, Sanders, Sheffer, Tenison
and Waweru), April 26, 2010 (Baker, Hansen, McClain, O’Keefe), and October 30, 2011
(Hendricks). The Wells Plaintiffs filed their complaint on November 3, 2010 (Adams, Borders,
Bowden, Dees, Fickbohm, Jacobson, Miller, Moore, Redel, Taube and Wells) and May 10, 2011
(Cooke, Smith, Svitak). To prevail on its statute of limitations defense, FedEx must prove that
- 37 -

Plaintiffs’ claims accrued more than five years from the date each joined the lawsuit plus another year
and twenty-seven days of tolling. After reviewing the summaries of the Plaintiffs’ testimony relating
to the statute of limitations (Gray Doc. No. 227-28; Wells Doc. No. 156-18), the Court finds that
different conclusions may be drawn from the evidence as to whether the statute of limitations has run,
making summary judgment inappropriate.
Accordingly, FedEx’s motion for summary judgment on Plaintiffs’ claims for fraudulent
misrepresentation will be denied.
(2) Claims for wages/overtime10
Plaintiffs have asserted claims under the Missouri Minimum Wage Law (“MMWL”), Mo.
Stat. Ann. § 290.505, which provides that “no employer shall employ any of his employees for a
workweek longer than forty hours unless such employee receives compensation for his employment
in excess of the hours above specified at a rate not less than one and one-half times the regular rate
at which he is employed.” FedEx argues it is entitled to summary judgment on the overtime claims
of 24 of the 25 Plaintiffs asserting such claims.
First, FedEx argues that the ten Plaintiffs11 with overtime claims who stopped working for
FedEx before January 1, 2007 are exempt from the MMWL. Before January 1, 2007, the MMWL
excluded from its definition of “employee” any “individuals employed by an employer” subject to

10

In Gray, this Court granted Plaintiffs leave to amend their complaint to assert a claim
for overtime in place of their claim for “illegal deductions from wages.”(Memorandum and
Order, Gray Doc. No. 136; Sixth Amended Complaint, Gray Doc. No. 142) This Court has
found that the Gray Plaintiffs’ claims for wages under §§ 290.527 and 290.505 and the claims
for illegal deductions from wages asserted in Wells are both essentially claims for wage
deficiency on the theory that FedEx Ground did not pay all “wages” owed to Plaintiffs.
(Memorandum and Order on FedEx’s Motion to Dismiss Sixth Amended Complaint, Gray Doc.
No. 157)
11

Gray Plaintiffs Brown, Candela, Hill, Holmes, Patton, Sheffer, Tenison, Tichenor and
Tucker and Wells Plaintiff Moore

- 38 -

the Fair Labor Standards Act (“FLSA”). See, e.g., Mo. Ann. Stat. § 290.500, Historical and Statutory
Notes, 2006 Amendment (West 2012) (providing that “individuals employed by an employer covered
by 29 U.S.C. § 203” were not subject to the state statute); Doyel v. McDonald’s Corp., 2009 WL
350627, at *2 (E.D. Mo. Feb. 10, 2009) (holding that the statute “plainly exempted … all employees
who were covered by the FLSA before January 1, 2007”). FedEx contends it is an “employer” within
the meaning of the FLSA, see 29 U.S.C. § 203,12 and as such, the overtime claims of these ten
Plaintiffs fail. Doyel, 2009 WL 350627, at *2 (dismissing claims for violations of the Missouri
minimum wage law prior to January 1, 2007, “because defendant was covered by the FLSA before
January 1, 2007.”).
Plaintiffs did not address FedEx’s argument in their opposition. At oral argument, however,
they relied on Davenport v. Charter Communications, LLC, 2012 WL 5050580 (E.D. Mo. Oct. 18,
2012), to support their position that all of their wage claims survive. (Tr., 53:11-54:7) Plaintiffs’
reliance is misplaced. In Davenport, a collective action to recover unpaid wages and overtime under
the FLSA, the plaintiffs alleged identical violations of the MMWL as well as three common law
claims for breach of contract, quantum meruit and unjust enrichment. Defendant moved to dismiss
the plaintiffs’ common law claims on the grounds of preemption by the FLSA. Following the
decisions of other district courts in the Eighth Circuit, including the Eastern District, the court found
no preemption under the FLSA of the plaintiff’s state common law claims. Davenport, 2012 WL
5050580, at *3 (and cases cited therein). The court did not, however, address the plaintiff’s MMWL
claims and no argument was made that in that case that the claims predated the effective date of the
statute.

12

“Employer” is defined as “any person acting directly or indirectly in the interest of an
employer in relation to an employee . . .” 29 U.S.C. § 203(d).
- 39 -

In Doyel, the court instructed that “[b]ased on the entire text and purpose of the MMWL, the
exemption meant to protect individuals by the MMWL if they were not protected by the FLSA . . .
[B]ecause defendant was covered by the FLSA before January 1, 2007, plaintiffs . . . are barred from
recovering under the MMWL for violations occurring before January 1, 2007.” 2009 WL 350627 at
* 2. The Court has ruled that Plaintiffs were employees of FedEx as a matter of law. Thus, FedEx is
an “employer” as defined under the FLSA. Because Gray Plaintiffs Brown, Candela, Hill, Holmes,
Patton, Sheffer, Tenison, Tichenor and Tucker and Wells Plaintiff Moore were not working for FedEx

after January 1, 2007, they are barred from recovering under the MMWL.
Next, FedEx contends that the claims of five other overtime Plaintiffs13 fail because they are
subject to an overtime exemption that applies to employees of motor carriers. See Mo.Ann.Stat. §
290.505(3), which provides that “the overtime requirements of [§ 290.505(1)] shall not apply to
employees who are exempt from federal minimum wage or overtime requirements including, but not
limited to, the exemptions . . . specified in [the Fair Labor Standards Act].” (Mem. In Supp. Of
Consol. Mo., p.34) In particular, the FLSA exempts employees covered by the Motor Carrier Act
(“MCA”) from overtime eligibility. See 29 U.S.C. § 213(b)(1). An employee is subject to the MCA
exemption if he is “(1) employed with a motor 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.” Jaramillo v. Garda, Inc., 2012 WL 4955932, at *2 (N.D.
Ill. Oct. 17, 2012). (Mem. in Supp. of Consol. Mo., p. 34)
Before August 10, 2005, a “motor carrier” was defined as “a person providing motor vehicle
transportation for compensation,” 49 U.S.C. § 13102(12) (2004), and the MCA exemption “applied
to all drivers operating in interstate commerce, regardless of the weight of the vehicle driven.”

13

Gray Plaintiffs Arbutti, Blackmon and O’Keefe and Wells Plaintiffs Cooke and Jacobson

- 40 -

Buckner v. United Parcel Service, Inc., 2012 WL 1596726, at *4 (E.D. N.C. May 7, 2012). On
August 10, 2005, Congress changed the definition of a “motor carrier” to include only commercial
motor vehicles. Id. Commercial vehicles were defined as vehicles having “a gross vehicle weight
rating or gross vehicle weight of at least 10,001 pounds.” Id. (citing 49 U.S.C. § 31132(1)(A)). As
a result, employees of motor vehicles operating vehicles weighing less than 10,001 pounds no longer
qualified for the MCA exemption. Id.; Jaramillo, 2012 WL 4955932, at *3 (citing 49 U.S.C. §
31132(1)); Brooks v. Halstead Communications, Ltd., 620 F.Supp.2d 193, 197-98 (D.Mass. 2009).
Then on June 6, 2008, Congress enacted the SAFETEA–LU Technical Corrections Act of 2008 (the
“TCA”), which restored the 2004 definition of a “motor carrier,” but retained the weight limitation
for vehicles. Jaramillo, 2012 WL 4955932, at *3. In sum, the TCA permits overtime claims under the
FLSA by drivers of vehicles weighing 10,001 pounds or less. (Mem. in Supp. of Consol. Mo., p. 35)
Drivers of vehicles weighing over 10,001 pounds remain exempt from the FLSA’s overtime
requirements. (Id.) FedEx argues that because these five Plaintiffs did not drive vehicles under 10,001
pounds after the June 6, 2008 enactment of the TCA, their claims are barred by the MCA exemption.

In response, Plaintiffs argue that FedEx is a “hybrid motor carrier,” because it employs drivers
with vehicles weighing both over and under 10,001 pounds. “When mixed activities occur, and
employees are asked to operate both commercial and on-commercial vehicles during their course of
employment, the employees’ coverage under the FLSA is favored.” (Rev. Mem. in Opp., p. 39)
(citing Hernandez v. Brink’s Inc., 2009 WL 113406, at *6 (S.D. Fla. Jan. 15, 2009).14

14

Because the Court has ruled that Plaintiffs are employees of FedEx as opposed to
independent contractors, Plaintiffs’ argument that FedEx is not a motor carrier as defined by the
Motor Carrier Act is moot. (Rev. Mem. In Opp., pp. 37-38)
- 41 -

Courts that have considered the issue of a “mixed fleet” of both commercial and noncommercial vehicles are divided on the proper approach, but the prevailing view appears to be that
when mixed activities occur, the MCA favors coverage of the employee during the course of
employment, so long as the time an employee spends operating commercial motor vehicles is more
than de minimus. Avery v. Chariots For Hire, 748 F.Supp.2d 492, 500 (D.Md. 2010) (citing
Hernandez v. Brink's, Inc., 2009 WL 113406, at *6 (S.D.Fla. Jan. 15, 2009) (“[W]hen mixed
activities occur, the Motor Carrier Act favors coverage of the employee during the course of
employment.”); Dalton v. Sabo, Inc., 2010 WL 1325613, at *4 (D.Or. Apr. 1, 2010) (holding that
motor carrier exemption applied to plaintiffs that performed maintenance on a fleet that consisted of
vehicles weighing both more and less than 10,000 pounds); c.f., Tews v. Renzenberger, 592
F.Supp.2d 1331 (D.Kan.2009) (holding that the mere presence of a few commercial motor vehicles
in a company's fleet does not render all of its driver's exempt from overtime pay). As the Seventh
Circuit explained, “[d]ividing jurisdiction over the same drivers, with the result that their employer
would be regulated under the [MCA] when they were driving the big trucks and under the [FLSA]
when they were driving trucks that might weigh only a pound less, would require burdensome recordkeeping, create confusion, and give rise to mistakes and disputes.” Collins v. Heritage Wine Cellars,
Ltd., 589 F.3d 895, 901 (7th Cir.2009).
Employers relying on an exemption to avoid the minimum wage and overtime requirements
of the FLSA bear the burden of proof that an exemption applies. Fast v. Applebee’s Intern., Inc., 638
F.3d 872, 882 (8th Cir. 2011) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974)).
Exemptions are construed narrowly against the employer. Adams v. City of Manchester, 2012 WL
3242078, at *4 (E.D. Mo. 2012). Plaintiffs take the position that an individualized analysis as to each
driver is required in order for FedEx to claim exemption from the FLSA under the MCA. (Tr., 56:1112:57:14-22)
- 42 -

The undisputed evidence shows that Gray Plaintiffs Arbutti and Blackmon, and Wells Plaintiff
Jacobson, stopped contracting with FedEx prior to June 6, 2008 (SOF, ¶¶ 44-46), when the MCA
exemption applied to all employees of motor carriers. Accordingly, their claims are barred. As for
the remaining Plaintiffs, FedEx asserts that Gray Plaintiff O’Keefe and Wells Plaintiff Cooke both
drove vehicles weighing over 10,001 pounds after June 6, 2008. (Consol. Mem. in Supp., p. 36)
O’Keefe testified he did not know the GVWR of his vehicle, raising a disputed issue of material
fact. (Plaintiffs’ Supp.Resp. SOF, ¶ 48) Cooke does not dispute that he operated a vehicle with a
GVWR of over 10,000 pounds. (Id., ¶ 47) Therefore, his claim is barred.
FedEx further argues that the overtime claims of nine Plaintiffs15 who operated as
corporations during the relevant time period fail as a matter of law. Under the OA, contractors can
form their own corporations or other businesses entities, and they bear all of the costs and risks
associated with their businesses. (OA, ¶¶ 1.2,1.3, 3.1) The MMWL defines an “employee” as “any
individual employed by an employer.” Mo.Ann.Stat. § 290.500 (3). While the MMWL does not
define “individual,” FedEx contends that in analogous contexts, the term “individual” means a natural
person, not a “corporation.” (Memorandum In Support of Consol. Mo., Wells Dkt. No. 123, pp. 3738) Plaintiffs respond that no Missouri case precludes an individual from making an overtime claim
on this basis, and this Court’s independent research has revealed none. FedEx’s argument, while
creative, is not controlling, and overlooks the common understanding that in terms of their legal
status, corporations are treated as persons, entitled to sue and be sued, own property, and incur
contractual obligations. The fact that some of the Plaintiffs use corporate status does not defeat their
overtime claims, particularly because Plaintiffs signed the OAs as individuals, not as business
entities. (Rev. Memo. in Opp., p. 41)

15

Gray Plaintiffs Austin, Baker, Gray, Hendricks and Pour and Wells Plaintiffs Redel, Smith,
Taube and Wells (SOF ¶¶ 96-104)

- 43 -

Finally, FedEx argues Plaintiffs Gray, Sheffer and Wells are judicially estopped from
asserting their wages claims because they failed to disclose them in bankruptcy proceedings. (Mem.
In Supp., The law is well-settled that a plaintiff who previously filed for bankruptcy “may be
judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise
mentioned in the debtor’s schedules or disclosure statements.” Stallings v. Hussman Corp., 447 F.3d
1041, 1047 (8th Cir. 2006). The Eighth Circuit has explained that judicial estoppel applies when: (1)
the debtor’s later position is “clearly inconsistent with its earlier position”; (2) the bankruptcy court
has “adopted the debtor’s position”; and (3) the “debtor’s non-disclosure of the claim [is not]
inadvertent and . . . result[s] in the debtor gaining an unfair advantage.” Id. at 1047-48. FedEx
contends that all three factors are present here.
First, Plaintiffs’ failure to include their claims against FedEx in their bankruptcy filings is
“clearly inconsistent” with their prosecution of those claims in this case. All three either knew of their
claims against FedEx before they filed for bankruptcy or during the pendency of their bankruptcy
proceedings, yet none of them listed any claim against FedEx as an asset in their bankruptcy petition
or supplemented their bankruptcy filings to disclose their claims against FedEx. Second, Plaintiffs’
bankruptcy debts have been discharged. Third, Plaintiffs’ failure to disclose their claims was not
inadvertent, in that they were all aware of their claims against FedEx when they filed for bankruptcy.
(Consol. Mem. in Supp., pp. 39-41)
Plaintiffs respond that judicial estoppel is not a mandatory doctrine, but rather an equitable
one, invoked by a court in its discretion; it does not apply when a party’s prior position was taken
because of a good-faith mistake rather than as part of a scheme to mislead the court. See Loth v.
Union Pacific RR Co., 354 S.W.3d 635 (Mo.Ct.App. 2011) (reversing summary judgment granted
on the basis of judicial estoppel). Plaintiffs argue that estoppel is inappropriate in this context,
without a thorough inquiry into the facts and circumstances of their failure to disclose their claims
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in bankruptcy. Plaintiffs state they have either reopened their bankruptcy cases or are in the process
of doing so. (Gray Opp. Aff., ¶¶ 17, 18; Sheffer Opp. Aff., ¶¶ 17, 18; Wells Opp. Aff., ¶¶ 18-20)
FedEx has produced no evidence that Plaintiffs acted in bad faith. (Rev. Mem in Opp., pp. 41-44)
Where the evidence is susceptible to more than one inference, summary judgment is not proper. Loth,
354 S.W.3d at 642. Because there is a question of fact regarding Plaintiffs’ intent in failing to
disclose their claims against FedEx in their bankruptcy actions, summary judgment based on judicial
estoppel will be denied.
Accordingly, FedEx’s motion for summary judgment on Plaintiffs’ claims for wages/overtime
will be granted as to Gray Plaintiffs Arbutti, Blackmon, Brown, Candela, Hill, Holmes, Patton, Sheffer,
Tenison, Tichenor and Tucker, and Wells Plaintiff Jacobson, Cooke and Moore.

(3) Rescission and Declaratory Judgment
Plaintiffs concede that only the rescission and declaratory judgment claims of two Wells
Plaintiffs, Wells and Smith, remain. (Revised Mem. In Opp., pp. 7-8) In their claim for rescission,
Plaintiffs allege the OA mischaracterizes their status as employees, and claim entitlement to
compensation for all of the business expenses FedEx required them to bear, for all of the employment
taxes, unemployment compensation and workers’ compensation FedEx did not pay, and the value of
their services as employees. Plaintiffs further seek entry of a declaratory judgment in their favor
declaring FedEx’s practices to be unlawful and providing for recovery of all sums determined by the
Court to be owed by FedEx to Plaintiffs.
FedEx argues that Plaintiffs’ claims for rescission and declaratory judgment fail because
Plaintiffs terminated the OA with FedEx that was the basis for their claims. (Consol. Mem. in Supp.,
pp. 9-10) In response, Plaintiffs argue their claims are valid because they were brought before FedEx
terminated the OAs for these Plaintiffs and moved to an “independent service provider” model. (Rev.
Mem. In Opp., p. 8) In either case, neither Wells nor Smith dispute they are not currently parties to
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the OA at issue in this case. However, both of them are still employed by FedEx. (Gray Doc. No.
215; Wells Doc. No. 124 (FedEx SUF), ¶ 31; Smith Depo., 16: 22-25; Wells’s Linehaul OA). Further,
it appears to the Court that the relief Plaintiffs seek has essentially been granted them by virtue of the
Court’s ruling on their motion for partial summary judgment. Although these claims may be moot,
for purposes of this Order, the Court will deny FedEx’s motion for summary judgment on the
rescission and declaratory judgment claims of Wells Plaintiffs Wells and Smith.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motions to Strike Defendant’s Consolidated
Response to Plaintiffs’ Omnibus Statements of Uncontroverted Facts [309, 188] and Plaintiffs’
Individual Statements of Uncontroverted Material Facts. [310, 189] are DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motions for Partial Summary Judgment as to
Employment Status [209, 113] are GRANTED.
IT IS FURTHER ORDERED that Defendant FedEx Ground Package System, Inc.’s
Consolidated Motion for Summary Judgment [212, 122] is GRANTED in part and DENIED in part
as follows:
As to Plaintiffs’ claims for fraudulent misrepresentation (Gray Compl., Count I; Wells
Amended Compl., Count II), the motion is DENIED.
As to Plaintiffs’ claims for wages/overtime (Gray Compl., Count II; Wells Amended Compl.,
Count I), the motion is GRANTED as to Gray Plaintiffs Arbutti, Blackmon, Brown, Candela, Hill,
Holmes, Patton, Sheffer, Tenison, Tichenor, and Tucker, and Wells Plaintiffs Cooke, Moore, and
Jacobson.
As to the claims of Wells Plaintiffs Wells and Smith for rescission and declaratory judgment
(Wells Amended Compl., Counts III and IV), the motion is DENIED.

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IT IS FURTHER ORDERED that a telephone conference with counsel is scheduled for
Friday October 18, 2013 at 10:00 a.m to set these cases for trial and establish trial procedures.

Dated this 27th day of September, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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