Baouch v. Werner Enterprises, Inc. et al

Filing 127

ORDER that the defendants' motion 113 is granted; the plaintiffs' motion 102 is denied. The plaintiffs' motion 107 to amend its index of evidence is denied as moot. A planning conference to establish an amended progression schedule shall be held in the chambers of the undersigned on 7/21/014, at 9:00 a.m. in Room 3190, Roman L. Hruska United States Courthouse, 111 South18th Plaza, Omaha, Nebraska. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
YASSINE BAOUCH, on behalf of
himself and all those
similarly situated, SCOTT
LARROW, on behalf of himself
and all those similarly
situated, JUSTIN BURKHOLDER,
ROBERT WILLIAM HERRMANN,
RADEK KOHOUT, JACK DEAN
MICHAEL, STEVEN RICHARD
MILSTEAD, JAMES MYRICK, TROY
EDMUND TOWNSEND, CLAIRE
ELIZABETH BODO, WAYNE DARIUS
GRANT, ADAM HOFFMAN, JOSEPH
DEWAYNE THOMAS, DANIELLE
MARIE BARNEY, CHAD RYAN
BASSO, CAROLINE CECELIA
BUSICK, CHRISTOPHER CLAY DAY,
BRUCE L. MARSHA, DALE DON
OSHIRO, AARON DAVID WING,
DAVID ALLEN FAYKOSH, STEVE N.
NEELY, JATARVEIYON KEVIN LEE
ASHLEY, MICHAEL EGLI, THOMAS
FISHER, JOHN A. PHILLIPS,
MARVIN E. RUSH, ADAMS FRANK
AKHALU, STEVEN WAYNE DOANE,
THOMAS A. GILLIS, WILLIAM A.
HAMILTON, JOHN RAY MINOR,
JOSEPH SABLAN SALAS, TIMOTHY
LEONARDO SMITH, TERRI LYNN
THACKER, and BRIAN ZEITZ,
Plaintiffs,
v.
WERNER ENTERPRISES, INC., and
DRIVERS MANAGEMENT, LLC,
Defendants.

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8:12CV408

ORDER

This matter is before the Court on cross motions of the
parties.

The plaintiffs have filed a motion (Filing No. 102) for

Partial Summary Judgment as to Liability.

The defendants have

filed a motion (Filing No. 113) to strike the motion for summary
judgment, or, in the alternative, to stay the plaintiffs’ motion
until the parties complete merits discovery.

The parties have

submitted corresponding briefs and indices of evidence.

The

issue before the Court is whether the parties are sufficiently
prepared for summary judgment.

The Court finds that they are

not.
The defendants are Werner Enterprises, Inc. and Drivers
Management, L.L.C. (collectively “Werner”).
company.

Werner is a trucking

Plaintiffs are current and former Werner employees who

allege Werner has violated the Fair Labor Standard Act (“FLSA”)
and various state laws including the Nebraska Wage and Hour Act
(“NWHA”).

Essentially, the plaintiffs claim Werner allowed its

employees to opt into a per diem program which circumvented
minimum wage requirements.

The per diem program offers Werner’s

employees tax-free reimbursement for each day its drivers spend
away from home.

Importantly, Werner deducts this tax-free pay

from the drivers’ wages.
The Court has not established a scheduling order for
merits discovery, yet the plaintiffs have filed their motion for
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partial summary judgment.

The plaintiffs wish to avoid vexation

of its 60,000 member class and to conserve party -- and Court -resources by examining the issue of liability immediately.
However, Werner forcefully argues that it requires merits
discovery before it can defend against the plaintiffs’ motion.
Specifically, Werner wishes to conduct discovery for its defenses
of estoppel and waiver, among others (Filing Nos. 118, at 5-8;
115, at 4-5).
The Court finds that partial summary judgment against
the defendants before merits discovery is unnecessarily
prejudicial.

Werner should be allowed to conduct its discovery

to fully prepare its defenses for summary judgment.

If further

discovery does not avail the defendants, nothing is lost by
allowing the defendants to proceed with discovery.

Conversely,

if there are additional facts which speak to liability, then
summary judgment will be a grave disservice to the defendants at
this juncture.

There is a clear preference in the law for

adequate discovery.

Stanback v. Best Diversified Prods., Inc.,

180 F.3d 903, 911 (8th Cir. 1999) (citing In re Temporomandibular
Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1489–90
(8th Cir. 1997)); Fed. R. Civ. P. 56(d).

Therefore, the Court

will allow the parties to proceed with discovery as to liability.

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IT IS ORDERED:
1) The defendants’ motion (Filing No. 113) is granted;
the plaintiffs’ motion (Filing No. 102) is denied.
2) The plaintiffs’ motion (Filing No. 107) to amend its
index of evidence is denied as moot.
3) A planning conference to establish an amended
progression schedule shall be held in the chambers of the
undersigned on:
Monday, July 21, 2014, at 9 a.m.
Room 3190, Roman L. Hruska United States Courthouse, 111 South
18th Plaza, Omaha, Nebraska.
DATED this 7th day of July, 2014.

BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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