PORTILLO et al v. NATIONAL FREIGHT, INC. et al

Filing 234

OPINION. Signed by Judge Joseph H. Rodriguez on 8/9/2021. (dmr)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN F. PORTILLO, RAFAEL
SUAREZ, MARTIN DURAN, GERMAN
BENCOSME, EDIN VARGAS, LUIS A.
HERNANDEZ, JOSUE PAZ, and
ALAVARO CASTANEDA, individually
and on behalf of all others similarly
situated,

CIVIL ACTION NO. 15-cv-7908-JHR-KMW
OPINION

Plaintiffs,
vs.
NATIONAL FREIGHT, INC. and NFI
INTERACTIVE LOGISTICS, INC.,
Defendants.

This matter is before the Court on Plaintiffs’ Motion to Compel Compliance with the
Court’s Class Certification Decision and Issue Notice to All Class Members (“Motion to
Compel”) [Dkt. 201] and Defendants National Freight, Inc. and NFI Interactive Logistics, Inc.’s
[collectively “NFI”] response thereto [Dkt. 212]. For the reasons discussed below, the Court will
grant Plaintiffs’ motion in part and deny the motion in part.
I.

Overview
The named Plaintiffs in this case represent a class of truck drivers who contracted with

NFI—a provider of logistics, transportation, and distribution services—to deliver food and other
goods from NFI warehouses to Trader Joe’s retail stores on the East coast. Portillo v. Nat'l
Freight, Inc., 336 F.R.D. 85, 87 (D.N.J. 2020). Plaintiffs initiated this lawsuit in 2015 alleging
that NFI misclassified them as independent contractors and, as a result, that certain deductions
that NFI withdrew from Plaintiffs’ compensation violated the New Jersey Wage Payment Law
1

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(“NJWPL”), N.J. Stat. 34:11-4.1 et seq. [Dkt 1, Compl.; see also Dkt. 102, Am. Compl]. On
July 1, 2020, the Court certified the plaintiff class under Federal Rule of Civil Procedure
23(b)(3) to include
1. All individuals who: (1) entered into, either personally or
through a corporate entity, an independent contractor
agreement with NFI that had a New Jersey choice-of-law
clause; and (2) drove a vehicle on a full-time basis to
perform deliveries of goods to Trader Joe’s stores
anywhere on the East Coast on behalf of NFI at any time
since June 22, 2009.
2. “Full-time basis” means having delivered at least 80% of
the loads assigned to the contractor.
[Dkt. 170, 171]. The Court refers to these criteria as “the Class Definition” throughout this
opinion.
The parties now disagree on Class Definition’s interpretation and whether it includes or
excludes certain putative class members who have not yet received notice of this lawsuit.
Plaintiffs’ Motion to Compel alleges that NFI improperly refused to send class notices to
approximately fifty NFI drivers who fit the Class Definition. [Dkt. 201-2 at 9–10]. Plaintiffs
also argue that, even if they are wrong, these individuals are entitled to notice that they are not
class members. NFI responds that these individuals do not qualify as “class members” under the
Class Definition and that individuals outside of the class are not entitled to receive notice. [Dkt.
212 at 5–6].
The Court heard oral argument on these issues on June 29, 2021. [Dkt. 230]. The Court
then asked for supplemental briefing on issues raised during oral argument. [Dkt. 232].

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II.

Analysis
a. Individuals with Disputed Class Status
The parties dispute Class Definition’s application to four discrete groups of drivers. The

Court will discuss each group separately.
i. Parties’ Concessions
Plaintiffs concede that, for different reasons, three NFI contractors—identified as VH;
YR; and Itzel, Inc.—do not meet the Class Definition. [See Dkt. 201-2 at nn.8, 9]. These
individuals are therefore not class members.
Although the parties previously disputed Plaintiff Alvaro Castaneda’s class membership,
NFI now concedes that Castaneda “is … part of this case because he is a Named Plaintiff.” [Dkt.
212 at 17 n.12]. Thus, Castaneda is a class member and is entitled to notice.
ii. Independent Contractor Agreements and Applicable State Law
All named Plaintiffs and putative absent class members signed Independent Contractor
Agreements (“ICOAs”) with NFI that nominally classify drivers as independent contractors
rather than employees. Portillo, 336 F.R.D. at 87. NFI has used five different ICOAs since
2009. The first three ICOAs included New Jersey choice-of-law clauses (collectively the “New
Jersey ICOAs”).1,2 The most recent ICOAs, which NFI distributed to drivers in 2019 (the “2019
1

The second and third ICOAs contained New Jersey forum selection clauses, while the first did
not include a forum selection clause.
2

Plaintiffs point out, and NFI tacitly agrees, that
[t]he pre-2019 contracts included start dates and an expiration date
one year later, and a provision stating that the contract could be
automatically renewed for one-year periods, or cancelled by either
party. Stated differently, for years, these drivers worked under
one-year contracts, which were fully vested, expired and then
renewed, and contained a New Jersey choice of law provision and
a New Jersey forum selection clause.
3

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ICOA”) and 2020 (the “2020 ICOA”), contain Texas choice-of-law and forum-selection clauses
(collectively the “Texas ICOAs”).3,4,5
The parties first dispute the class membership of approximately thirty-six drivers who
first signed a New Jersey ICOA and later signed a Texas ICOA. To resolve this dispute the
Court must revisit prior decisions in this case.

[Dkt. 233 at 6].
3

The choice-of-law and forum-selection clauses read, in pertinent part:
This Agreement or any claim or dispute arising from or in
connection with this Agreement shall be interpreted in accordance
with, and governed by the laws of the United States and the State
of Texas, without regard to the choice-of-law rules of Texas or any
other jurisdiction. THE PARTIES FURTHER AGREE THAT
ANY CLAIM OR DISPUTE ARISING FROM OR IN
CONNECTION WITH THIS AGREEMENT OR OTHERWISE
WITH RESPECT TO THE OVERALL RELATIONSHIP
BETWEEN THE PARTIES … SHALL BE BROUGHT
EXCLUSIVELY IN THE STATE OR FEDERAL COURTS IN
DALLAS COUNTY, TEXAS. CARRIER AND CONTRACTOR
HEREBY CONSENT TO THE JURISDICTION AND VENUE
OF SUCH COURTS.

[Dkt. 143-13 ¶ 23] (emphasis in original).
4

The 2019 ICOA also includes the following clause:
This Agreement ... constitute[s] the entire Agreement between
CARRIER and CONTRACTOR pertaining to the subject matter
contained herein and fully replaces and supersedes all prior and
contemporaneous agreements, representations, and understandings.

[Dkt. 143-13 ¶ 24(c)].
Like the New Jersey ICOAs, the 2019 ICOA states that “[t]his Agreement shall be for a period
of one (1) year from the date of execution.” [Dkt. 143-3 ¶ 2(a)].
5

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1. Review of 2018 and 2020 Opinions
On June 11, 2018, the late Judge Jerome Simandle issued an opinion in response to
Plaintiffs’ motion for declaratory relief to determine which state’s law would apply to the named
Plaintiffs’ class claims. [See Dkt. 94]. Judge Simandle conducted a choice-of-law analysis that
relied heavily on the New Jersey choice-of-law clauses in the New Jersey ICOAs that existed at
the time. Judge Simandle found that the New Jersey choice-of-law provision in the named
Plaintiffs’ ICOAs tilted the analysis in favor of applying New Jersey law, and concluded that
New Jersey law would apply to the named Plaintiffs’ claims. [Dkt. 94 at 38–39].6
In the wake of Judge Simandle’s opinion—and while this litigation was still pending—
NFI disseminated the 2019 ICOA to its drivers, including putative class members in this case
who drive for NFI on the east coast. As mentioned above, the 2019 ICOA contains Texas
choice-of-law and forum-selection clauses even though NFI is incorporated in New Jersey and
has its principal places of business in New Jersey. [Dkt. 94 at 3]. By October 18, 2019, when
NFI submitted its briefing on the issue of class certification, at least five putative class members
had signed the 2019 ICOA. [Dkt. 142 at 11].7
This Court revisited Judge Simandle’s 2018 opinion in its July 1, 2020 class certification
opinion. Among the issues that the Court considered when certifying and defining the class was
the state law that would apply to absent class members’ class claims. The Court found that

6

[See Dkt. 94 at 39] (“The Court is persuaded that New Jersey has the most significant
relationship to the parties, the working relationships, and the claims at issue in this case.
Defendants are the more sophisticated party and the drafters of the contract; they elected to be
bound (with regard to contract claims) by New Jersey law and to bind the drivers to New Jersey
law with regard to such claims….”).
7

According to NFI, thirty-six putative class members have now signed a 2019 or 2020 ICOA.
[See Dkt. 212 at 10 n.7].
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Judge Simandle’s choice-of-law analysis regarding named class members extended to absent
class members who signed ICOAs containing a New Jersey choice-of-law clause. Portillo, 336
F.R.D. at 91. The Court recognized, however, that “the lack of a New Jersey choice-of-law
clause in the 2019 ICOA would change the outcome of the Court's previous [choice-of-law]
decision.” Id. The Court found that Judge Simandle’s choice-of-law analysis “appl[ies] to the
putative class members, except for those who only signed the 2019 ICOA.” Id. The Court did
not extensively analyze or determine which state’s law would apply to drivers who signed the
2019 ICOA but concluded that “New Jersey law would not apply to those drivers.” Id. This
choice-of-law analysis informed the Class Definition, which requires class members to have
signed a New Jersey ICOA. See id. at 98.
2. The Present Dispute
As indicated above, NFI has refused to provide contact information necessary to provide
notice to thirty-six individuals who signed a Texas ICOA. Plaintiffs believe that most or all of
these thirty-six individuals previously signed a New Jersey ICOA because thirty-three of these
individuals delivered for NFI before NFI introduced the 2019 and 2020 ICOA’s. [Dkt. 201-2 at
12]. Plaintiffs argue that any individuals who signed both a Texas ICOA and a New Jersey
ICOA are class members because the Class Definition includes “[a]ll individuals who … entered
into … an independent contractor agreement with NFI that had a New Jersey choice-of-law
clause.” [Dkt. 201-2 at 11]; Portillo, 336 F.R.D. at 98. Plaintiffs also rely on the Court’s finding
that Judge Simandle’s choice-of-law analysis “does apply to the putative class members, except
for those who only signed the 2019 ICOA.” [Dkt. 201-2 at 8–9].
NFI does not dispute that certain individuals signed both a Texas ICOA and a New Jersey
ICOA but argues that those individuals are not class members. NFI points to the Court’s

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conclusion that “New Jersey law would not apply” to individuals who signed the 2019 ICOA and
argues under the “law of the case” doctrine8 that these individuals cannot be class members even
if they previously signed a New Jersey ICOA. [Dkt. 212 at 9–10]. NFI further argues that the
Texas ICOAs superseded any prior ICOAs between NFI and the putative class members. [Id. at
11–12]. During oral argument and in its supplemental briefing, NFI argued that Texas courts
must decide any dispute about the effect of the Texas ICOAs.
Plaintiffs have properly interpreted the Court’s class definition. The Court understands
that some language in its class certification opinion may permit conflicting interpretations as to
class membership for drivers who signed both New Jersey and Texas ICOAs. But the Court
never intended to exclude these drivers from the class entirely, which is why the Court found that
“[a]ll individuals who … entered into … an independent contractor agreement with NFI that had
a New Jersey choice-of-law clause” are class members and that Judge Simandle’s choice-of-law
conclusions “apply to the putative class members, except for those who only signed the 2019
ICOA.” Portillo, 336 F.R.D. at 91, 98 (emphasis added). The Court confirms that drivers who
signed one or more New Jersey ICOAs and one or more Texas ICOAs—and who otherwise
satisfy the criteria for class membership—are class members eligible to recover for injuries

8

The law-of-the-case doctrine generally provides that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same case.”
Musacchio v. United States, 577 U.S. 237, 244–45, 136 S. Ct. 709, 716, 193 L. Ed. 2d 639
(2016) (citations and quotations omitted). “In that respect, the doctrine endeavors ‘to maintain
consistency and avoid reconsideration of matters once decided during the course of a single
continuing lawsuit.’” Krys v. Aaron, 106 F. Supp. 3d 472, 480 (D.N.J. 2015) (quoting In re
Pharmacy Benefit Mgrs. Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009).
7

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sustained under New Jersey law9 before the drivers signed a Texas ICOA.10 See Gibbs v. Frank,
500 F.3d 202, 206 (3d Cir. 2007) (observing that district courts have discretion to interpret their
own orders).
Two legal principles support the Court’s interpretation of its class certification opinion
and order. First, as a matter of contract law, the Texas ICOAs do not divest putative class
members of the right to pursue claims in New Jersey courts that may have accrued under New
Jersey law before these drivers signed a Texas ICOA.11 The Class Definition includes
individuals who drove for NFI under New Jersey ICOA’s as long ago as June 22, 2009. Nothing
in the 2019 ICOA facially suggests that the parties intended12 the 2019 ICOA to “reach[] back in
time to require” these drivers to litigate “a claim which had accrued before the [2019 ICOA] was
signed or before the [2019 ICOA] even took effect” in Texas courts under Texas law. Hendrick
v. Brown & Root, Inc., 50 F. Supp. 2d 527, 535 (E.D. Va. 1999); see also Ariba, Inc. v. Faulks,
No. CIV.A. 3:03-CV-0093-, 2003 WL 21414769, at *3 (N.D. Tex. June 13, 2003) (“Indeed, the
2002 policy contains no language that indicates the parties intended to retroactively renegotiate
the arbitration provisions of the prior policies and, absent clear intent to the contrary, an

9

To be clear, the Court does not reach any decision as to whether drivers who signed New Jersey
ICOAs and Texas ICOAs suffered any injuries for which NFI is liable. This finding only
confirms that such drivers satisfy the criteria for class membership.
10

During oral argument, Plaintiffs conceded that drivers who signed Texas ICOAs are not
entitled to recover under New Jersey law for injuries suffered after signing the Texas ICOA.
11

Nor do the Texas ICOAs divest this Court of jurisdiction to determine that the Texas ICOAs
do not apply in this case. See Flahavin v. Fairway & Greene, Ltd., No. 3:11-CV-1458-F, 2012
WL 13026639, at *3–4 (N.D. Tex. Feb. 23, 2012) (denying motion to dismiss for improper
venue based on forum-selection clause in later-signed contract).
As with any contract interpretation issue, the Court must look to the parties’ intent as
embodied in the 2019 ICOA. Williams v. Metzler, 132 F.3d 937, 947 (3d Cir. 1997).
12

8

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integration clause does not extinguish ‘a party's right to litigate under prior contracts.’” (quoting
Coffman v. Provost * Umphrey Law Firm, LLP, 161 F. Supp. 2d 720, 728 (E.D. Tex. 2001))).
Instead, and as Plaintiffs point out, the 2019 ICOA’s plain language demonstrates that the parties
only intended for it to operate prospectively. [Dkt. 233 at 6].
The Court rejects NFI’s argument that the 2019 ICOA’s integration clause compels a
different result [Dkt. 212 at 11] because the Texas ICOAs do not concern the same subject
matter as the earlier ICOAs.13 The 2019 ICOA states that it “constitute[s] the entire Agreement
between CARRIER and CONTRACTOR pertaining to the subject matter contained herein.”
[Dkt. 143-13 ¶ 23]. As noted above, each ICOA facially governs NFI’s relationship with its
drivers for a one-year period. [Dkt. 233 at 6]. In other words, the “subject matter” of each
ICOA consists of the parties’ respective rights and obligations for that year only. The “subject
matter” of the 2019 ICOA therefore consists only of the parties’ rights and obligations for one
year following its execution and, therefore, does not include rights and obligations that predate
its execution.
Further, “the run-of-the-mill integration clause” in the Texas ICOA was “designed to do
nothing more than prevent any unincorporated side agreements previously negotiated by the
parties during the pre-contract negotiation stage from becoming enforceable provisions” in the
Texas ICOAs. Choice Sec. Sys., Inc. v. AT&T Corp., 141 F.3d 1149 (1st Cir. 1998). The
integration clause does not function as a “radical … retroactive renegotiation of … earlier
agreements” between NFI and its drivers. Id. (citing Kentucky Fried Chicken Corp. v.

“[A]s a general matter, integration clauses are meant to act as ‘conclusive evidence that the
parties intended to supersede any prior contract on the same subject matter.’” Skold v. Galderma
Lab'ys L.P., 917 F.3d 186, 194 (3d Cir. 2019) (quoting ADR N. Am., L.L.C. v. Agway, Inc., 303
F.3d 653, 658 (6th Cir. 2002)).
13

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Collectramatic, Inc., 130 N.H. 680, 547 A.2d 245, 248 (N.H.1988)); see also Flahavin, 2012 WL
13026639, at *3–4 (enforcing a forum selection clause in an earlier agreement after finding that
forum selection and integration clauses in a subsequent contract did not extinguish rights under
the earlier agreement).
Adopting NFI’s view would transform the Texas ICOAs into “implied releases” or
waivers of any rights that putative class members may have accrued while performing under
contracts governed by New Jersey law. Trico Elec. Coop., Inc. v. Sensus USA, Inc., 2011 WL
13233552, at *4 (D. Ariz. Nov. 8, 2011) (citing Standard Oil Co. Of California v. Perkins, 347
F.2d 379, 384 (9th Cir. 1965)); see also Petrillo v. Bachenberg, 263 N.J. Super. 472, 479–80,
623 A.2d 272, 276 (App. Div. 1993), aff'd, 139 N.J. 472, 655 A.2d 1354 (1995) (“Waiver must
be evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the
right can be based.” (citations omitted)). Without clear evidence that the parties sought to
invalidate all pre-2019 agreements when they entered into a Texas ICOA, the Court declines to
enforce the Texas ICOAs as releases. See Trico Elec. Coop., Inc., 2011 WL 13233552, at 4.
(“Here, the general integration clause in the 2010 Support Agreement does not invalidate the
2006/2007 Settlement Agreements because it appears to the Court that the parties would have
explicitly referenced the Settlement Agreements if they had intended to invalidate them.”).
To the extent there is any doubt as to whether the Texas ICOAs can be interpreted to
extinguish Plaintiffs’ rights under prior contracts or require them to bring their claims in Texas
courts, the Court must resolve those doubts against NFI who drafted the 2019 ICOA. Corp.
Synergies Grp., LLC v. Andrews, 775 F. App'x 54, 56 n.1 (3d Cir. 2019) (citing In re Miller's
Estate, 90 N.J. 210, 447 A.2d 549, 555 (1982)).

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Second, the Court has authority under the Federal Rules of Civil Procedure to decline to
enforce the Texas ICOAs and extinguish the rights of putative class members. Rule 23(d), which
“is concerned with the fair and efficient conduct of the action,” Notes of Advisory Committee,
Fed. R. Civ. P. 23(d), grants district courts the “broad authority to exercise control over a class
action and to enter appropriate orders governing the conduct of counsel and parties.” Gulf Oil
Co. v. Bernard, 452 U.S. 89, 99–100, 101 S. Ct. 2193, 2199–200, 68 L. Ed. 2d 693 (1981).
“Courts have found a need to limit communications with absent class members where the
communications were misleading, coercive, or an improper attempt to undermine Rule 23 by
encouraging class members not to join the suit.” Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667
(E.D. Tex. 2003).
The Court finds that NFI’s conduct was misleading and coercive and threatened the
fairness of this litigation, even if this was not NFI’s intention.14 O'Connor v. Uber Techs., Inc.,
No. C-13-3826 EMC, 2013 WL 6407583, at *5 (N.D. Cal. Dec. 6, 2013) (“Wilful misconduct on
the defendant's part is not required so long as the effect is to interfere with class members'
14

During oral argument, NFI represented that it included the Texas choice-of-law and forumselection clauses as part of a routine update to its ICOAs nationwide for broader business
reasons, and that it has logistics, operations, and warehouses in Texas. NFI also argued that
there was no record evidence showing that NFI issued the Texas ICOAs to intentionally preclude
drivers from the class. The Court is skeptical for several reasons. First, NFI began to use Texas
choice-of-law and forum-selection clauses in its ICOAs—apparently for the first time—just
months after Judge Simandle determined that New Jersey law would govern the named
Plaintiffs’ claims. Even though Judge Simandle’s opinion did not certify or define the class, NFI
certainly understood based on this opinion that Plaintiffs’ class claims would arise under New
Jersey law due in large part to the New Jersey ICOAs. Second, NFI is incorporated in New
Jersey, operates principally out of New Jersey, and distributed Texas ICOAs to drivers in the
mid-Atlantic and northeast with no apparent connection to Texas. Third, the Court understands
that the 2019 ICOA also includes an indemnification clause that facially requires drivers to
indemnify NFI if the drivers challenge their status as an independent contractor. [Dkt. 143-13 at
13]. These facts, coupled with NFI’s argument here that the Texas ICOAs exclude putative class
members from this lawsuit, permit a strong inference that NFI implemented the Texas ICOAs to
disrupt this litigation.
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rights.”). NFI’s conduct was misleading because NFI never attempted to notify putative class
members that the Texas ICOAs could or would affect their rights in this litigation. Williams v.
Sake Hibachi Sushi & Bar, Inc., No. 3:18-CV-0517-D, 2018 WL 4539114, at *3 (N.D. Tex.
Sept. 21, 2018) (finding settlement agreements misleading because they “neglect to mention the
instant case by name or to give the putative class members any other information that would
allow them to make an informed decision to waive their rights.”); Balasanyan v. Nordstrom, Inc.,
Case No. 11-cv-2609, 10-cv-2671, 2012 WL 760566, at *3 (S.D. Cal. Mar. 8, 2012). NFI has
not offered evidence or convincingly argued otherwise. The fact that NFI required putative class
members to sign Texas ICOAs during an “‘ongoing business relationship’” suggests that NFI’s
practices were coercive. Ralph Oldsmobile, Inc. v. Gen. Motors Corp., No. 99 CIV. 4567
(AGS), 2001 WL 1035132, at *3 (S.D.N.Y. Sept. 7, 2001) (quoting Kleiner v. First Nat'l Bank,
751 F.2d 1193, 1202 (11th Cir. 1985)); see also Williams, 2018 WL 4539114, at *4 (“The
employer-employee relationship and failure to give the potential class members accurate,
impartial information regarding their rights in this case … leads the court to find that the
settlement agreements are coercive.”). Finally, if NFI was correct that the Texas ICOAs would
extinguish putative class members’ rights under New Jersey law or defeat class membership by
forcing class members to litigate claims in Texas courts, then the Texas ICOAs would “affect
participation in the lawsuit” and thereby “threaten the fairness of the litigation.” Doe 1 v. Swift
Transportation Co., No. 2:10-CV-00899 JWS, 2017 WL 735376, at *1–2 (D. Ariz. Feb. 24,
2017) (citing Balasanyan, 2012 WL 760566, at * 3).
Since NFI’s administration of the ICOA’s “threatens the fairness of the litigation,” the
Court has the authority to take the “‘minimum steps necessary to correct the effects of the
improper conduct.’” Becker v. Bank of New York Mellon Tr. Co., N.A., No. 2:11-CV-6460,

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2012 WL 13018242, at *2 (E.D. Pa. Dec. 18, 2012) (quoting In re Cmty. Bank of N. Virginia,
418 F.3d 277, 310 (3d Cir. 2005). In cases like this—where defendants have successfully
solicited putative class members to enter agreements during litigation that might frustrate the
ability to participate in class litigation but did not notify the class members that they might forfeit
class litigation rights—courts have refused to enforce the contract provisions that would exclude
the putative class members from the class. See, e.g., Jimenez v. Menzies Aviation Inc., No. 15CV-02392-WHO, 2015 WL 4914727, at *5 (N.D. Cal. Aug. 17, 2015) (“Because it did not
inform the putative members of the effect of the ADR Policy on those claims and give them a
reasonable opportunity to opt out, the issuance of the ADR Policy to putative class members
constituted improper class communication and the policy is unenforceable.”); Balasanyan, 2012
WL 760566, at *4 (“In sum, because Nordstrom's communication constituted an improper
attempt to alter the pre-existing arbitration agreement with putative class members during
litigation, this court invalidates the ‘rolled out’ 2011 agreement as to putative class
members….”); In re Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237, 254
(S.D.N.Y. 2005) (“In sum, defendants’ unsupervised communications were improper because
they sought to eliminate putative class members’ rights in this litigation. Thus, this Court holds
that those arbitration clauses may not be enforced because Chase and Citibank added them,
without notice, after this litigation commenced.” (citing Long v. Fid. Water Sys., Inc., No. C–97–
20118 RMW, 2000 WL 989914, at *3 (N.D. Cal. May 26, 2000))); Georgine v. Amchem Prod.,
Inc., 160 F.R.D. 478, 502 (E.D. Pa. 1995).
Following these cases, the Court’s interpretation of the Class Definition is consistent with
its authority under Rule 23. Rule 23 permits the Court to decline to enforce the Texas choice-oflaw and forum-selection clauses in a manner that would exclude drivers who signed a New

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Jersey ICOA and a Texas ICOA from the class or extinguish their right to sue under the New
Jersey ICOA for conduct that occurred before they signed a Texas ICOA.
In sum, the Court confirms that Plaintiffs’ interpretation of the Class Definition is correct
and that drivers who signed one or more New Jersey ICOAs and later signed a Texas ICOA are
class members. These class members may recover for injuries that they may have suffered under
New Jersey law between June 22, 2009 and the date when they first signed a Texas ICOA. As
such, these drivers are entitled to notice of their class membership as provided in Rule 23.
iii. Jointly Owned Entities
Next, the parties dispute the class status of three entities that delivered for NFI—HARP
TRANSPORT, LSR TRUCKING LLC, AND TD—each of which had two owners. There is no
dispute that one owner for each entity delivered more than 80% of the loads that NFI assigned to
each entity. [See Dkt. 201-2 at 21–22; Dkt. 212 at 16–17]. Plaintiffs argue that the owner/driver
who delivered the loads for each entity fits the Class Definition. [Dkt. 201-2 at 21–22].
Plaintiffs rely on Class Definition language stating that the class includes “[a]ll individuals who
… entered into, either personally or through a corporate entity, an independent contractor
agreement with NFI….” [Dkt. 215 at 15] (emphasis added); Portillo, 336 F.R.D. at 98. But
according to NFI, “[t]he class definition logically does not contemplate contractors with more
than one owner.” [Dkt. 212 at 16]. NFI points out that if Plaintiffs are correct, one owner for
each entity would not be a class member, even though the entity—and not the owners as
individuals—contracted with NFI. [Dkt. 16–17].
The Court agrees with Plaintiffs. An individual driver for each of these entities signed an
ICOA with NFI and drove 80% of the loads assigned to that entity, as the Class Definition
requires. Moreover, Plaintiffs do not argue that the owners who did not deliver the assigned

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loads are entitled to recover separately from or in addition to the drivers that delivered the
assigned loads. HARP TRANSPORT, LSR TRUCKING LLC, and TD are class members and
are entitled to receive notice.
iv. Non-Owner Operators
The parties next dispute the status of three entities—Cascada Trucking Inc., CNM
Trucking Inc., and SKS LLC—where available data purportedly does not indicate whether the
individual who delivered loads for each entity owned the entity.15 The available data shows the
entity name and, for each load delivered by that entity, the truck number, driver identification
number, and an initial. [Dkt. 201-3 ¶ 8]. For CNM Trucking Inc. and SKS, “there is only one
Truck Number/Driver ID/Name, which is responsible for every dispatch performed by that
entity. CASCADA TRUCKING INC has a second Truck Number/Driver ID which performed
only 1 out of a total 1070 dispatches performed by CASCADA TRUCKING INC….” [Id.].
However, the data does not specify that each entity’s driver owns that entity. [Id.].
NFI argues that those drivers “may have driven for people other than themselves and/or
companies owned by” other people. [Dkt. 212 at 17]. NFI argues that Plaintiffs have not offered
proof of ownership and that the Court cannot include these individuals in the class on mere
assumption. [Dkt. 212 at 17–18].
Plaintiffs argue that NFI has improperly withheld ICOAs which contain information that
would identify each entity’s owner. [Dkt. 201-2 at 20]. According to Plaintiffs, “NFI either has
data demonstrating that these three individuals were (or were not) owners … or NFI lacks that

15

The parties do not explicitly explain why they believe that ownership would affect class
membership. The Court assumes the issue to be that, if the drivers were not “owners,” then they
would not have “entered into … an independent contractor agreement with NFI” as the class
definition requires.
15

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information.” [Dkt. 215 at 17]. Alternatively, Plaintiffs argue that the drivers are class members
because they otherwise satisfy the class definition and are “presumably part of the class.” [Dkt.
201-2 at 20].
During oral argument, NFI denied that ownership information is available on the ICOAs.
NFI also argues that review of the ICOA for ownership information would require an
“individualized” analysis that undermines Rule 23. [Dkt. 212 at 18].
The Court does not find NFI’s Rule 23 argument convincing where, as discussed above,
NFI seeks to exclude thirty-six individuals based on choice-of-law provisions in the ICOA(s)
that each driver signed. The Court does not see how reviewing another field on the same ICOA
would amount to “extensive individualized fact-finding” that Rule 23 prohibits. Hayes v. WalMart Stores, Inc., 725 F.3d 349, 356 (3d Cir. 2013).
Still, the Court agrees with NFI that Plaintiffs have failed to carry their burden of
demonstrating that these drivers are class members. Hayes, 725 F.3d at 354 (“Factual
determinations supporting Rule 23 findings must be made by a preponderance of the evidence,
and the burden of proof rests on the movant….”) (citations and quotations omitted). The Court
accepts NFI’s representation that ownership information is simply not available on the ICOAs in
question, declines to include these individuals in the class based on a mere presumption.16
Cascada Trucking Inc., CNM Trucking Inc., and SKS LLC are not class members.

Plaintiffs cite Hargrove v. Sleepy’s LLC, 974 F.3d 467 (3d Cir. 2020) to argue that NFI’s
failure to keep complete records cannot defeat class membership for these drivers. [Dkt. 201-2
at 5]. This argument fails for two reasons. First, Hargrove contemplated failure to maintain
records which the employer “was required to keep by law.” Hargrove, 974 F.3d at 482.
Plaintiffs have not identified any law that requires NFI to maintain the ownership information
they seek. Second, Plaintiffs only identify the ICOAs as the sources of the ownership
information that they seek, and do not argue that NFI has—or ever had—complete records for
these drivers elsewhere. In other words, Plaintiffs appear to complain that NFI failed to properly
obtain ownership information in the first instance, and not that NFI failed to maintain complete
16

16

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v. RRL JR.
The final dispute concerns a contractor RRL JR. NFI’s brief summarizes the facts
surrounding RRL JR as follows:
The data reveals RRL JR started out driving for NFI as an
individual owner-operator (and performing at least 80% of the
loads assigned to him). Around June 2015, however, RRL JR
contracted with NFI through a company (that he presumably
owned, “Lamberson Logistics”) and began hiring out work to other
drivers. The data shows three unique drivers for Lamberson
Logistics (two in addition to RRL JR himself). Looking at this
bigger picture reveals RRL JR did not deliver at least 80% of the
loads assigned to him over the course of his entire relationship
with NFI.
[Dkt. 212 at 20]. NFI concludes that RRL JR is not a class member because “[t]he class
definition does not contemplate including people who meet the 80% threshold only for some
period of their relationship with NFI.” [Id.]. Plaintiffs disagree with this conclusion and argue
that RRL JR “should be considered a class member from the time that he operated as an
individual owner operator (up and until June 2015), as he falls within the class definition during
this timeframe.” [Dkt. 215 at 19].
Plaintiffs are correct. NFI concedes that RRL JR performed at least 80% of the loads
assigned until June 2015. [Dkt. 212 at 20]. In other words, RRL JR drove on a full-time basis as
provided in the Class Definition “at some time.” The Class Definition includes NFI contractors
who “drove a vehicle on a full-time basis … at any time since June 22, 2009.” Portillo, 336

records. Hargrove is therefore inapposite, particularly because Plaintiffs have not cited any
authority stating that NFI was legally required to affirmatively seek out ownership information
from these drivers.
17

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F.R.D. at 98. This broadly worded provision cannot be interpreted to exclude individuals who
drove on a full-time basis at one time but not at another.17
b. One-Way Intervention
NFI argues that if the Court determines that any of the individuals discussed above are in
fact class members, the rule against one-way intervention18 prohibits the Court from ruling
Plaintiffs’ pending motion for partial summary judgment until the “new” class members have
received their class notices and the opportunity to opt out of the class. [Dkt. 212]. Plaintiffs
respond that NFI’s argument is “wholly misplaced” because NFI has long known that the class
status of these individuals was disputed. [Dkt. 215 at 19 n.4].
However valid NFI’s concern was when it submitted its brief on February 25, 2021, it is
no longer valid following the Court’s March 18, 2021 order. [Dkt. 220]. This order suspended
NFI’s deadline to respond to Plaintiffs’ summary judgment motion until after this Court and
Judge Williams resolved other pending motions and discovery disputes between the parties.
Thus, Plaintiffs’ summary judgment motion is not ripe for consideration and likely will not be
ripe when the opt-out period has expired for the drivers determined above to be class members.

17

The Court recognizes that, taken to is extreme, the dispute here tests the boundaries of when
an individual drove on a “full-time basis.” Socratic hypotheticals illuminate the issue. What if,
for example, a driver delivered 80% of the loads assigned one day, but 0% the next? What if a
driver delivered 80% of loads one month but 0% the next? Under both examples, the driver
drove on a “full-time basis” at one time but not another but, on average, delivered less than 80%
of the loads assigned. The facts before the Court do not present such an extreme example. RRL
JR delivered at least 80% of loads assigned for several years until 2015. The Court is satisfied
that RRL JR drove on a “full-time basis” for this discrete time period.
The rule against one-way intervention aims to prevent “members of a class [from] benefit[ting]
from a favorable judgment without subjecting themselves to the binding effect of an unfavorable
one.” Taha v. Cty. of Bucks, 862 F.3d 292, 299 (3d Cir. 2017) (quoting Am. Pipe & Constr. Co.
v. Utah, 414 U.S. 538, 545–47, 94 S. Ct. 756, 762–63, 38 L. Ed.2d 713 (1974)).
18

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c. Notice to Non-Class Members
Plaintiffs argue that, even if any of the above drivers are not class members, the Court
should “direct that appropriate notice be issued to all previously-contemplated class members so
that those individuals are properly informed of their rights.” [Dkt. 201-2 at 16]. The Court
declines to do so.
Plaintiffs argue that Rule 23(d)(1)(B) provides Courts discretion to order notice “to some
or all class members” to “protect class members.” [Dkt. 201-2 at 14]. Nothing in Rule 23 grants
Courts this discretion with respect to non-class-members, and Plaintiffs have not cited any
binding authority to suggest otherwise.19 The Advisory Committee Notes to Rule 23 indicate
that the discretion which subsection (d) provides “is designed to fulfill requirements of due
process to which the class action procedure is of course subject.” Id. (citations omitted).
Plaintiffs have not cited any authority stating that failure to inform these individuals that they are
not class members will deprive them of their due process rights. Moreover, these individuals
have not received notice that they were included in the class, so further notice is not required to
advise them of their revised status. Cf. Culver, 277 F.3d at 914 (holding that district court was
required to notify former class members that the class had been decertified).
According to Plaintiffs, notice is necessary to inform these excluded individuals of their
rights before applicable statutes of limitations foreclose potential claims against NFI. [201-2 at
15]. However, the Rule 23 Advisory Committee Notes explicitly caution against using Rule

Plaintiffs cite several out-of-circuit opinions interpreting the term “class” in Rule 23 to include
putative class members where a court decertifies or refuses to certify a class. See Culver v. City
of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002) (decertification); Puffer v. Allstate Ins. Co., 614
F. Supp. 2d 905, 909–11 (N.D. Ill. 2009) (refusal to certify). For reasons discussed below, these
cases are distinguishable.
19

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23(d) “as a device for the undesirable solicitation of claims.” See also Wotus v. GenCorp, Inc.,
No. 5:00 CV 2604, 2004 WL 7333100, at *3 (N.D. Ohio May 17, 2004) (“[C]ourts have
recognized that court-ordered notice of the denial of class certification could be regarded as a
solicitation of claims.”). Plaintiffs also argue that notice is necessary to prevent these excluded
individuals from believing that they are included in the class like their colleagues who only
signed a New Jersey ICOA. [Id. at 16]. Plaintiffs have not offered any evidence that these
individuals knew of this lawsuit or their status as putative class members, or relied on Plaintiffs’
representation in this case.20 In other words, Plaintiffs have not provided evidence that these
individuals would suffer prejudice without receiving notice that they are not class members. See
Puffer, 614 F. Supp. 2d at 912 (finding that prejudice requires plaintiffs to show, at a minimum,
that putative class members knew of the litigation (discussing Culver, 277 F.3d at 914)).
In sum, the Court finds that it lacks discretion under Rule 23 to order notice to drivers
determined here not to be class members, and that Plaintiffs have failed to show that notice is
necessary to avoid prejudice to these non-class members. Thus, the Court will deny Plaintiffs’
motion to order class notices to these non-class-members.

20

These omissions distinguish this case from the cases upon which Plaintiffs rely. See Gardner
v. W. Beef Properties, Inc., No. 07-CV-2345 RJD JMA, 2012 WL 526424, at *2 (E.D.N.Y. Feb.
16, 2012) (approving notice to putative class members who knew of the ongoing litigation, but
noting that notice would be inappropriate where “the putative class members likely have not yet
learned of the putative class action and, therefore, cannot have relied on it to their detriment”);
Puffer, 614 F. Supp. 2d at 912 (finding that notice is proper where “putative class members were
aware of this lawsuit, as that awareness gives rise to the risk … that some of them may lose any
right to pursue individual claims without knowing it”).
20

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III.

Conclusion
For the reasons discussed above, the Court will grant Plaintiffs’ motion in part and deny

the motion in part. By August 30, 2021, NFI shall provide contact information for the drivers
determined to be class members above to facilitate notice to these drivers.

August 9, 2021

/s/ Joseph H. Rodriguez
Joseph H. Rodriguez, USDJ

21