Bascomb et al v. Express Courier International Inc et al

Filing 14

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2854), ( 2 in MDL No. 2854) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/1/2018. Associated Cases: MDL No. 2854, ALN/2:18-cv-00064, ARE/4:18-cv-00004, FLN/4:18-cv-00048, GAN/1:18-cv-00186, KYW/5:18-cv-00011, LAE/2:18-cv-00156, MOE/4:18-cv-00010, MSN/3:18-cv-00011, NCW/3:18-cv-00028, OKN/4:18-cv-00030, SC/3:18-cv-00128, TNM/3:18-cv-00028, TXS/4:18-cv-00010 (CMD)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: EXPRESS COURIER INTERNATIONAL, INC.,
FAIR LABOR STANDARDS ACT (FLSA) AND
WAGE AND HOUR LITIGATION

MDL No. 2854

ORDER DENYING TRANSFER

Before the Panel:* All plaintiffs move under 28 U.S.C. § 1407 to centralize pretrial
proceedings in this litigation in the Middle District of Tennessee or, alternatively, the Southern
District of Texas. Defendants Express Courier International, Inc. d/b/a LSO Final Mile and EMP
LSO Holding Corp. (together, “Express”) oppose the motion. This litigation consists of thirteen
actions pending in thirteen districts, as listed on Schedule A.
Plaintiffs, current or former courier drivers for Express, allege that they were misclassified
by Express as independent contractors under the Fair Labor Standards Act (“FLSA”) and seek as
damages unpaid overtime and/or minimum wages. Plaintiffs bring their claims on an individual
basis, following the decertification of a collective class action in the Western District of Arkansas.
See Harris v. Express Courier Int’l, Inc., C.A. No. 5:16-5033, 2017 WL 5606751 (W.D. Ark. Nov.
21, 2017).
On the basis of the papers filed and hearing session held, we conclude that centralization is
not necessary for the convenience of the parties and witnesses or to further the just and efficient
conduct of the litigation. All actions do involve questions of fact as to the classification of Express
couriers as independent contractors, as well as about whether Express denied plaintiffs minimum and
overtime wages under the FLSA. The thirteen actions pending encompass the claims of more than
750 plaintiffs.
Despite the overlap in plaintiffs’ allegations and the number of pending claims, we are not
convinced that centralization will deliver significant benefits in terms of enhancing the efficient
conduct of these actions or the convenience of the parties. The determination of whether an
individual is an employee or an independent contractor requires an individualized inquiry involving
multiple factors. The Panel has found that centralization of wage and hour litigation is less
appropriate where it would involve significant localized discovery.1 In granting defendants’ motion
*

1

Judge Lewis A. Kaplan took no part in the decision of this matter.

See In re: CVS Caremark Corp. Wage & Hour Emp’t Practices Litig., 684 F. Supp. 2d
1377, 79 (J.P.M.L. 2010) (discussing three broad circumstances in which centralization wage and
(continued...)

-2for decertification in Harris, the Western District of Arkansas found it “quite clear” that Express’s
“treatment of its couriers varied so greatly, from location to location, and even from courier to
courier.” Harris, 2017 WL 5606751, at *6.
While we are not bound by the court’s decertification order, its findings persuade us that
centralization is not necessary to prevent duplicative discovery. Given the advanced stage of the
Harris action and the complete overlap of counsel in all actions, it does not appear that much further
discovery is necessary, aside from plaintiff-specific discovery. And the discovery produced in
Harris can be used by the parties to all actions. Plaintiffs argue that centralization is necessary to
ensure an efficient discovery schedule. But we have emphasized that “centralization under Section
1407 should be the last solution after considered review of all other options.” In re: Best Buy Co.,
Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). While,
as plaintiffs argue, thirteen courts are not obligated to adopt a discovery schedule agreed to by the
parties, the parties should attempt such informal means of coordination before resorting to Section
1407 centralization.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

1

Charles R. Breyer
R. David Proctor

(...continued)
hour litigation is less compelling: (1) when the duties of the subject employees appear subject to
significant local variances or would entail significant localized discovery; (2) when the defendants
and/or some of the plaintiffs oppose centralization; and (3) when only a few actions or procedurally
dissimilar actions are involved in the litigation).

IN RE: EXPRESS COURIER INTERNATIONAL, INC.,
FAIR LABOR STANDARDS ACT (FLSA) AND
WAGE AND HOUR LITIGATION

MDL No. 2854

SCHEDULE A
Northern District of Alabama
BASCOMB, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 2:18-00064
Eastern District of Arkansas
BARNETTE, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 4:18-00004
Northern District of Florida
MARSHALL, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 4:18-00048
Northern District of Georgia
RYTE, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 1:18-00186
Western District of Kentucky
BELL, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 5:18-00011
Eastern District of Louisiana
CARTER, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 2:18-00156
Eastern District of Missouri
BARBER, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 4:18-00010

- A2 MDL No. 2854 Schedule A (Continued)

Northern District of Mississippi
CAMPBELL, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 3:18-00011
Western District of North Carolina
ALLEN, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 3:18-00028
Northern District of Oklahoma
NICKS, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 4:18-00030
District of South Carolina
BRANDON, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 3:18-00128
Middle District of Tennessee
ACKLIN, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 3:18-00028
Southern District of Texas
ARROYO, ET AL. v. EXPRESS COURIER INTERNATIONAL, INC., ET AL.,
C.A. No. 4:18-00010