Martinez v. Fed Ex Ground Package System, Inc.

Filing 132

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough granting 128 Motion to Intervene and Amend Complaint. (kfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FERNANDEZ MARTINEZ and SHAWNEE
BARRETT, on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.

Civ. No. 20-1052 SCY/LF

FEDEX GROUND PACKAGE SYSTEM,
INC., a Delaware corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING INTERVENTION
After denial of the motion for class certification, sixteen putative class members seek to
intervene as plaintiffs in this case (hereinafter “Intervenors”). Doc. 128. Intervenors explain that
they, like current plaintiffs Fernandez Martinez and Shawnee Barrett, are “current or former New
Mexico FedEx delivery drivers who were paid the same amount of money regardless of how
many hours they worked in a day, resulting in no premium payment for overtime hours worked
in violation of the New Mexico Minimum Wage Act” (“MWA”). Doc. 128 at 2. “As such, they
were putative members of the proposed class who reasonably could have relied on the original
named plaintiffs to advance their individual MWA claims until this Court’s order denying
certification.” Id. Defendant opposes the motion, arguing that the legal standard for intervention
is not met and that the addition of new parties at this stage would be prejudicial. The Court finds
that Intervenors meet the legal standard for permissive intervention. Intervenors’ claims involve
questions of law or fact in common with the existing Plaintiffs’ claims. Further, it is more

efficient and not unduly prejudicial to resolve their claims in the context of the current case.
Accordingly, the Motion To Intervene And Amend Complaint, Doc. 128, is GRANTED.
At the outset, the Court notes that Intervenors make three different arguments in support
of their motion: (1) the Supreme Court has ruled that intervention is appropriate as of right for
putative class members after a class action motion is denied; (2) Intervenors satisfy the standard
for mandatory intervention; and (3) Intervenors satisfy the standard for permissive intervention.
Because intervention is appropriate under the permissive intervention standard, the Court does
not consider Intervenors’ first two arguments.
Permissive intervention is appropriate where a federal statute creates a conditional right,
Fed. R. Civ. P. 24(b)(1), or where the intervenor “has a claim or defense that shares with the
main action a common question of law or fact,” Fed. R. Civ. P. 24(b)(2). “In exercising its
discretion, the court must consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
In this case, Intervenors have a claim that “shares with the main action a common
question of law or fact.” Fed. R. Civ. P. 24(b)(2). According to the proposed amended complaint,
Intervenors and current Plaintiffs worked as delivery drivers in New Mexico for “independent
service providers” (“ISPs”) to deliver packages on behalf of Defendant. Doc. 128-1 at 3-5.
Plaintiffs and Intervenors alleges that, despite working in excess of 40 hours a week, they did not
receive premium overtime pay as the MWA requires. Doc. 128-1 at 9-11. Defendant’s first line
of defense is that, even if this allegation is true, Defendant did not employ these drivers and so is
not liable under the MWA for unpaid overtime. E.g., Doc. 98 at 11. In an attempt to overcome
this defense, Plaintiffs and Intervenors will present evidence about the relationship between

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Defendant and its ISPs, to include Defendant’s mandatory guidelines common to all ISPs. Doc.
128-1 at 9-11; see also Doc. 84 at 7-17.
Defendant counters that allowing the Intervenors to join this lawsuit would require the
Court to analyze the practices and relationships of thirteen ISPs rather than just four. Doc. 129 at
15. It also argues that, because evidence crucial to a joint employment determination will vary
from driver to driver and ISP to ISP, Intervenors’ and Plaintiffs’ claims cannot be achieved
through resolution of common questions of law or fact. Id. Indeed, Defendant points out, in
denying Plaintiffs’ motion for class certification the Court already found the absence of a
common question. Doc. 129 at 15.
In making the finding Defendant references, however, the Court applied the commonality
standard in Rule 23 governing class actions, not the commonality standard in Rule 24 governing
intervention of individuals. As the Court stated in its order denying class action certification,
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011). “A party seeking class certification must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” Id.; see Doc. 124 at 6-7. The Tenth
Circuit has explained that, in the class action context, commonality
requires a plaintiff to do more than merely identify a common contention; instead,
that common contention must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke. In other
words, the focus of Rule 23(a)(2)’s commonality requirement is not so much on
whether there exist common questions, but rather on the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the
litigation.

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Naylor Farms, Inc. v. Chaparral Energy, LLC, 923 F.3d 779, 789 (10th Cir. 2019). It was in
applying this standard that this Court ruled that variances among ISPs likely would prevent the
common question of employment from being decided “in one stroke.” Doc. 124 at 24.
This is not the Rule 24 commonality standard. Under Rule 24, rather than asking whether
a question is susceptible to resolution “in one stroke”, courts must ask whether intervenors
present “questions of law and fact in common with” the main action. Tri-State Generation &
Transmission Ass’n, Inc. v. New Mexico Pub. Regul. Comm’n, 787 F.3d 1068, 1074 (10th Cir.
2015). That standard is satisfied here. At a minimum, the existing plaintiffs and every intervenor
will assert that certain common aspects of Defendant’s contracts with the ISPs makes Defendant
a joint employer and, consequently, jointly liable for any MWA violations. E.g. Doc. 128-1 at 69.
Defendant also argues that permitting intervention at this stage will delay the case and
cause prejudice. Doc. 129 at 15-18. Defendant asserts the existing case is ready for trial and “if
intervention is permitted, FedEx Ground will need to conduct written discovery and depose each
of the movants” as well as take “[f]ull discovery of the nine new service providers.” Doc. 129 at
16. The Court agrees that adding plaintiffs to this matter will cause some delay. But the relevant
question is whether these intervenors should bring their claim against Defendant in this action or
in multiple actions. Filing separate actions would cause more delay, compared to adding
plaintiffs to the current action, as much of the discovery and procedural history of this case
would have to be duplicated in the other action. As the Court observed when ruling on Plaintiffs’
motion to add a second plaintiff to this case, avoiding separately filed but nearly identical
lawsuits promotes efficiency for a variety of reasons, to include conservation of limited judicial
resources. Doc. 71 at 7-8.

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Finally, Defendant identifies no ascertainable prejudice as a result of the delay.
Defendant will have to conduct the discovery it identifies regardless of whether it happens in this
case or separate cases. It is true that the addition of parties will likely delay trial, but Defendant
does not identify any concrete prejudice this will cause, such as loss of evidence. Defendant has
an interest in resolving the claims against it in a timely and efficient manner, but when viewed
cumulatively, multiple lawsuits are more time consuming and less efficient than adding
Intervenors to this existing case. Defendant further argues that the delay will prejudice not only
it, but also the “current named Plaintiffs, who now have been waiting more than three years for
their claims to be heard.” Doc. 129 at 17. Defendant, however, lacks standing to make this
prejudice argument on behalf of parties whose interests it not only does not represent, but in fact
to whose interest it is opposed. The Court finds the standard for permissive intervention is
satisfied.1
CONCLUSION
The Motion To Intervene And Amend Complaint, Doc. 128, is GRANTED. Plaintiffs
shall file their second amended complaint separately on the docket within 21 days of the date of
this Order.

_____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE

1

The Court defers to the referral judge the question of establishing a deadline within which any
putative class member’s motion to intervene will presumptively be considered timely. See Doc.
128 at 12 n.5.

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