Petrone v. Werner Enterprises, Inc. et al

Filing 187

MEMORANDUM AND ORDER - Plaintiffs' motions, filing 171 in case 8:11-cv-00401-LES-FG3 and 74 in case 8:12-cv-00307-LES-FG3, are denied. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE,

)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE,
)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on the motion of the
plaintiffs for leave to file a third amended complaint (Filing
No. 171 in 8:11CV401 and Filing No. 74 in 8:12CV307).

The

plaintiffs have filed briefs in support of their motion (Filing
Nos. 172 and 184 in 8:11CV401 and Filing Nos. 75 and 87 in
8:12CV307) and indices of evidence (Filing Nos. 173 and 185 in
8:11CV401 and Filing Nos. 76 and 88 in 8:12CV307).

The

defendants have objected to this motion in their brief (Filing
No. 179 in 8:11CV401 and Filing No. 82 in 8:12CV307) and index of

evidence (Filing No. 180 in 8:11CV401 and Filing No. 83 in
8:12CV307).
I.

The Court finds the motion should be denied.

BACKGROUND
This is a class action suit against Werner Enterprises

Inc. (“Werner”) and Drivers Management L.L.C. (“Drivers
Management”) (collectively the “Defendants”).

Werner is a

Nebraska freight company which utilizes Drivers Management to
operate Werner’s Student Driver program.

The plaintiffs are “a

class that includes all drivers who have been employed in
Defendants’ Student Driver Program during the period from four
years prior to the filing of the Plaintiffs’ Complaint until
present.”

(Filing No. 24 in 8:12CV307) (hereinafter, all Filing

Numbers will correspond with case number 8:12CV307).

Plaintiffs

contend that drivers were instructed to log “on duty” and “off
duty” time according to definitions of the Department of
Transportation and not in accordance with statutory wage
definitions or contractual compensation agreements.
52, at 1-2.

Filing No.

Therefore, the Defendants allegedly violated wage

payment acts at the federal and state level for failing to pay
certain “off duty” time.
The plaintiffs now wish to amend their complaint in
order to incorporate an additional class of student drivers who
did not receive full remuneration for “on duty” time.
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The

plaintiffs only recently uncovered this class during discovery.
Filing No. 75, at 4-5.

After delivery of twenty million log

entries in September 2013, the plaintiffs discovered more than
10,000 instances in which the Defendants failed to pay student
drivers the correct wage according to those drivers’ hourly pay
and hours “on-duty.”

In light of this new information, the

plaintiffs filed to amend the complaint on November 19, 2013.
The Defendants object on numerous grounds.

The

Defendants claim the amendment is contrary to the scheduling
order, lacks good cause, was not diligently pursued, and is
futile.

Filing No. 82, at 2-3.

Furthermore, the Defendants

contend that the Court would have to certify this new purported
class.

Filing No. 82, at 3 (citing East Maine Baptist Church v.

Union Planters Bank, 244 F.R.D. 538 (E.D. Mo. 2007); Zenith
Laboratories, Inc. v. Carter-Wallace, Inc., 64 F.R.D. 159 (D.
N.J. 1974)).

Finally, because the plaintiffs did not comply with

the Local Rules for the District of Nebraska, the Defendants
contend that the motion to amend should be denied.
II.

DISCUSSION
If a party seeks to amend a pleading before trial but

after 21 days of serving the pleading, the party may amend with
leave of court.
so requires."

“The court should freely give leave when justice
Fed. R. Civ. P. 15(a)(2).
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"Amendments to

pleadings should be allowed with liberality.”

Baptist Health v.

Smith, 477 F.3d 540, 544 (8th Cir. 2007) (quoting Chesnut v. St.
Louis County, Mo., 656 F.2d 343, 349 (8th Cir. 1981)).

A court

may only deny the motion based upon a finding of undue delay, bad
faith, dilatory motive, repeated failure to cure deficiencies in
previous amendments, undue prejudice to the non-moving party, or
futility.

Doe v. Cassel, 403 F.3d 986 (8th Cir. 2005).

“The

burden of proof of prejudice is on the party opposing the
amendment.”

Roberson v. Hayti Police Dept., 241 F.3d 992, 995

(8th Cir. 2001).

On the other hand, “[i]f a party files for

leave to amend outside of the court's scheduling order, the party
must show cause to modify the schedule.”

Popoalii v. Corr. Med.

Servs., 512 F.3d 488, 497 (8th Cir. 2008).
Undue delay and prejudice to the defendants would
result in the modification of the complaint in this late hour.
This action began more than two years ago.

The parties have less

than three months left before the end of discovery.

The Court

would have to evaluate whether to certify this new class before
trial and thereby hamstring the progression of this case.
Because the defendants would experience undue delay and
prejudice, the motion to amend the complaint will be denied.
Accordingly,

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IT IS ORDERED that the plaintiffs’ motions are denied.
DATED this 16th day of January, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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