Petrone v. Werner Enterprises, Inc. et al

Filing 357

ORDER - Defendants' renewed motions to decertify the class and collective action (Filing No. 318 in 8:11CV401; Filing No. 220 in 8:12CV307) 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, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ renewed
motions to decertify the class and collective action (Filing No.
318 in 8:11CV401; Filing No. 220 in 8:12CV307).
filed briefs in support of their motions.

The defendants

The plaintiffs

responded with briefs in opposition, to which the defendants
replied.

After reviewing the motions, briefs, and applicable

law, the Court finds as follows.

Background and Procedural History
Defendants operate an eight-week Student Driver
Program as part of the training and orientation for new drivers.
Part of the training consists of driving a scheduled route with a
trainer during which the trainee assists in the driving, fueling,
maintenance, and communications with defendants.

Plaintiffs

contend that defendants inappropriately designate significant
amounts of legally compensable time as “off-duty” leading to
under-compensation in violation of the Fair Labor Standards Act
(“FLSA”).

Specifically, plaintiffs complain of two separate

types of violations:

(1) a practice of failing to compensate

drivers for breaks of less than 20 minutes; and (2) a practice of
failing to compensate for sleeping periods in excess of eight
hours in violation of the continuous workday rule.
The plaintiffs filed this action “Petrone I" alleging
claims under the FLSA (Filing No. 1 in 8:11CV401).

In addition,

plaintiffs filed an action “Petrone II” alleging Nebraska law
claims based on the same facts as “Petrone I” (Filing No. 1 in
8:12CV307).

The two cases have been consolidated.

The Court

entered a provisional order granting conditional certification
(Filing No. 83 in 8:11CV401) on October 11, 2012.

The Court

adopted the provisional order as a permanent order on December
19, 2012 (Filing No. 105 in 8:11CV401).
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In addition, the Court

certified a class for the state law claims under the Nebraska’s
Wage and Hour Act and Nebraska’s Wage Payment and Collection Act
(Filing No. 52 in 8:12CV307).

The defendants move this Court to

decertify the class and collective action.

The defendants allege

that individual issues predominate over common questions, that
damages cannot be proven on a class wide basis, and that
thousands of class members lack standing.
Law
To qualify for class certification under Rule 23, a
plaintiff must satisfy the threshold requirements of Rule 23(a),
and all requirements for at least one subsection in Rule 23(b).
See Fed.R.Civ.P. 23.

To satisfy Rule 23(a), plaintiffs must

prove (1) numerosity; (2) commonality; (3) typicality; and (4)
adequacy of representation.

Fed.R.Civ.P. 23(a). Plaintiffs must

also prove that common questions predominate over individual
questions and that a class action is the superior method for
resolving the claims.

Fed.R.Civ.P. 23(b)(3).

To avoid decertification, plaintiffs must prove that
they are similarly situated, or that they “‘suffer from a single,
FLSA-violating policy, and when proof of that policy or of
conduct in conformity with that policy proves a violation as to
all the plaintiffs.’”

Bouaphakeo v. Tyson Foods, Inc., 765 F.3d

791, 796 (8th Cir. 2014)(quoting O’Brien v. Ed Donnelly Enters.,
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Inc., 575 F.3d 567, 585 (6th Cir. 2009)).

“Even though

Plaintiffs’ burden at this final stage is more onerous than at
the notice stage, there is no requirement that Plaintiffs be
‘identically situated.’”

Judkins v. Southerncare, Inc., No.

4:12CV00293, 2015 WL 105789, at *1 (S.D. Iowa Jan. 6, 2015)
(citing Fast v. Applebee’s Int’l, Inc., 243 F.R.D. 360, 363 (W.D.
Mo. 2007).
Discussion
The plaintiffs have satisfied the four requirements
under Rule 23(a).

The class consists of approximately 50,000

class members; therefore, individualized litigation would be
impractical.

The plaintiffs possess the same interest and have

suffered the same injuries, even though some factual variations
exist.

As a result, the plaintiffs established typicality.

The

representatives’ legal claims and factual circumstances are
similar to the other class members, not creating any conflict of
interest.
For the commonality requirement, the defendants argue
that substantial individual issues predominate over common
issues.

Defendants claim that individualized inquiry is needed;

therefore decertification is proper.

Plaintiffs allege that

defendants’ minimum wage violations as to sleeper berth and short
rest periods stem from the same policy, practice, and conduct of
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the defendants.

The plaintiffs can point to a common policy or

practice to demonstrate how they were not properly compensated.
All student drivers logged their time under the same system.
Short rest periods were often logged under “Line 1" and sleeper
berth time was logged under “Line 2.”
not compensated by the defendants.

Certain off-duty time was

This Court has already

determined that defendants are liable as to the issue of sleeper
berth compensation and short rest periods (Filing No. 347 in
8:11CV401).

The defendants’ policy or practice for not

compensating the students drivers is common among all class
members.

Therefore, the common issues predominate over

individual issues.
As to the issue of damages, the defendants allege that
damages cannot be proven on a class wide basis.

The plaintiffs

argue that they have a class-wide damage model which can compute
damages for injured class members.

Defendants cite to Comcast

Corp. v. Behrend, for the position that plaintiffs must provide
admissible evidence of a reliable means for calculating the
amount of wages due for all class members through some uniform
methodology.

133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).

Circuit

courts have clarified the ruling in Comcast by stating that
“Comcast holds that a damages suit cannot be certified to proceed
as a class action unless the damages sought are the result of the
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class-wide injury that the suit alleges.”

Butler v. Sears,

Roebuck and Co., 727 F.3d 796, 799 (7th Cir. 2013).

In this

case, plaintiffs seek damages for the class-wide injury resulting
from defendants’ failure to compensate plaintiffs with minimum
wages.

Common questions of the class predominate, even though

some factual variations may be present.

The plaintiffs’ damage

calculation model can produce a “just and reasonable inference”
based on the defendants’ own records.

See Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed.
1515 (1946).
Finally, the defendants argue that the class should be
decertified because the class contains members who do not suffer
damages.

The plaintiffs contend that decertification on the

issue of standing is improper because it is based on the premise
that minimum wage is calculated on a weekly basis.

“In order for

a class to be certified, each member must have standing and show
injury in fact that is traceable to the defendant and likely to
be redressed in a favorable decision.”

Avritt v. Reliastar Life

Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010).

Federal courts

“do not require that each member of a class submit evidence of
personal standing.”

Denney v. Deutsche Bank AG, 443 F.3d 253,

263-64 (2d Cir. 2006).

This Court held that the Klinghoffer rule

will not apply to the Nebraska state law claims (See Filing No.
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347 at 23 in 8:11CV401).

Damage calculations for Nebraska state

law violations will be based on an hour-by-hour basis.

As a

result, the defendants’ motion to decertify the class based on
standing will be denied.

Accordingly,

IT IS ORDERED that defendants’ renewed motions to
decertify the class and collective action (Filing No. 318 in
8:11CV401; Filing No. 220 in 8:12CV307) are denied.
DATED this 12th day of August, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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