Young v. Act Fast Delivery of West Virginia, Inc. et al

Filing 389

MEMORANDUM OPINION AND ORDER denying Plaintiff Eric Young's 376 MOTION for Partial Summary Judgment. Signed by Judge Frank W. Volk on 4/10/2020. (cc: counsel of record; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
ERIC YOUNG, Individually
and on behalf of all others similarly
situated,
Plaintiff,
v.

CIVIL ACTION NO. 5:16-cv-09788

ACT FAST DELIVERY OF
WEST VIRGINIA, INC., and
HOME CARE PHARMACY,
LLC, and COMPASS HEALTH
SERVICES, LLC, and
OMNICARE, INC.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Plaintiff Eric Young’s Motion for Partial Summary Judgment [Doc.
376].
I.
This action concerns Defendants’ Act Fast Delivery of West Virginia, Inc., Home
Care Pharmacy, LLC, Compass Healthy Services, LLC, and Omnicare, Inc. (“Defendants”)
payment of mileage, overtime, and certain vehicular expenses to Plaintiff Eric Young, individually
and on behalf of others similarly situated (“Plaintiffs”). A jury trial took place in February 2018.
At least two issues there arising are relevant here. First, Plaintiffs’ expert testified that two options
existed for calculating vehicular expenses: approximating expenses by applying the IRS business
mileage rate (“IRS Rate”) or, instead, reimbursing actual expenses, the latter of which would

require “a lot more recordkeeping” [Doc. 330 at 150]. Defendants’ expert challenged certain
assumptions underlying the IRS Rate. In a jury instruction to which no objection was made, the
Court allowed the jury to determine the proper methodology for calculating damages on the point.
Second, the parties disputed the compensability of certain “stat run,” or expedited, return trips.
The jury returned a verdict for Defendants.
Plaintiffs moved for a new trial [Doc. 335]. They contended, in part, that
Defendants “presented no evidence to negate the employment of the IRS Rate as a rate that
encompasses a reasonable approximation” of work-related vehicle expenses [Doc. 335 at 7]. The
new trial request, however, made no mention of the compensability of stat run return trips. The
Court denied the motion, holding that Defendants’ expert witness “called into question Plaintiffs’
experts’ calculations and use of the IRS rate. Given the evidence presented at trial and the Court’s
instruction, a reasonable juror could have determined that the Plaintiffs’ expert testimony was less
credible than that of [Defendants’] expert” [Doc. 338 at 7-8]. Our Court of Appeals affirmed [See
Doc. 347].
Following the verdict and appeal, Plaintiffs learned of Advanced Shipping
Notice/Proof of Delivery Reports (or “ASN-POD Reports”) that Omnicare, Inc., did not produce
during discovery. Deeming the nondisclosure amounted to “misconduct” which “prevented
[Plaintiffs] from fully presenting their case” [Doc. 360 at 7], on October 1, 2019, the Court granted
a new trial and vacated the prior verdict.
Plaintiffs now request summary judgment on two issues. First, Plaintiffs ask that
the IRS Rate be deemed the mandatory method to approximate vehicular expenses [See Doc. 377
at 1]. Second, Plaintiffs contend that all stat-run return-trip time and mileage are compensable
employment activity under the Fair Labor Standards Act (“FLSA”) [See id.].

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II.
A.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is proper

where “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the nonmoving
party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “The nonmoving party must do so by offering ‘sufficient proof in
the form of admissible evidence’ rather than relying solely on the allegations of her pleadings.”
Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v.
Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)).
The Court must “view the evidence in the light most favorable to the [nonmoving]
party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks omitted); Variety
Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). “The court . . . cannot
weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 569 (4th Cir. 2015); see also Lee v. Town of Seaboard, 863 F.3d 323, 327
(4th Cir. 2017). In general, if “an issue as to a material fact cannot be resolved without observation
of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not
appropriate.” Fed. R. Civ. P. 56 advisory committee’s note to 1963 amendment.
B.

Law of the Case Standard
“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

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same case.’” Musacchio v. United States, 136 S. Ct. 709, 716 (2016) (quoting Pepper v. United
States, 562 U.S. 476, 506 (2011)). “[A] court has the power to revisit prior decisions of its own or
of a coordinate court in any circumstances, although as a rule courts should be loath to do so in the
absence of extraordinary circumstances such as where the initial decision was clearly erroneous
and would work a manifest injustice.” Christianson v. Colt Indus. Op. Corp., 486 U.S. 800, 817
(1988).
One “specific application of the law of the case doctrine” is the mandate rule. Volvo
Trademark Holding Aktiebolaget v. Clark Machinery Co., 510 F.3d 474, 481 (4th Cir. 2007). “The
rule ‘forecloses litigation of issues decided by the district court but foregone on appeal or otherwise
waived, for example because they were not raised in the district court.’” Id. (quoting United States
v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)). It “compels reliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.”
Bell, 5 F.3d at 66. The mandate rule also “forecloses litigation of issues . . . foregone on appeal or
otherwise waived, for example because they were not raised in the district court.” Bell, 5 F.3d at
67. Parties are “not permitted to ‘use the accident of remand to raise . . . an issue that [they] could
just as well have raised in the first appeal.’” United States v. Pileggi, 703 F.3d 675, 680 (4th Cir.
2013) (quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996)).
“Deviation from the mandate rule is permitted only in a few exceptional
circumstances, which include (1) when ‘controlling legal authority has changed dramatically’; (2)
when ‘significant new evidence, not earlier obtainable in the exercise of due diligence, has come
to light’; and (3) when ‘a blatant error in the prior decision will, if uncorrected, result in a serious
injustice.’” Invention Submission Corp. v. Dudas, 413 F.3d 411, 415 (4th Cir. 2005) (quoting Bell,
5 F.3d at 66).

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III.
A.

Application of the IRS Rate
Plaintiffs request a determination that the IRS Rate applies to approximate the

vehicular expenses incurred by Plaintiffs. Plaintiffs contend that the mandate rule does not
preclude this relief inasmuch as “neither [the district court] nor the Fourth Circuit has previously
considered the issues raised in this motion” [Doc. 379 at 4]. But the predecessor Judge concluded
that Defendants presented sufficient evidence at trial to convince a “reasonable juror” that the IRS
Rate should not be applied [Doc. 338 at 7-8]. Indeed, there was no objection to the instruction
reserving the question for the jury. Following affirmance on appeal, the matter was laid to rest.
Plaintiffs, however, additionally contend “[t]he mandate rule only applies if there
is a remand with instructions to be followed by the appellate court” [Doc. 379 at 3]. The law is
otherwise, inasmuch as our Court of Appeals has applied the mandate rule in previously affirmed
actions. See S. Atl. Ltd. P’ship of Tennessee, LP v. Riese, 356 F.3d 576, 587 (4th Cir. 2004). There
is no apparent reason to disregard the axiom that “the mandate of a higher court is ‘controlling as
to matters within its compass’” simply because the appellate disposition affirms a decision rather
than remanding it for further proceedings. Bell, 5 F.3d at 66 (quoting Sprague v. Ticonic Natl’l
Bank, 307 U.S. 161, 168 (1939)).
As noted, the mandate rule may be side-stepped only in “exceptional
circumstances.” Invention Submission Corp., 413 F.3d at 415. Notwithstanding the October 1,
2019, memorandum opinion and order granting of relief from judgment, neither intervening
controlling legal authority nor new evidence speak to the proper methodology for calculating
vehicular expenses. Nor did the Court blatantly err in its prior ruling, resulting in serious injustice,

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where an unobjected-to instruction invited Defendants to call into question the propriety of
applying the IRS Rate.
Accordingly, the law of the case doctrine constrains the Court to abide by the
predecessor Judge’s ruling that Defendants are entitled to present evidence rebutting the
application of the IRS Rate to calculate the Plaintiffs’ vehicular expenses.
B.

Compensability of “Stat Run” Return Trips
Plaintiffs seek a ruling that “stat run” return trips are compensable as a matter of

law.
As noted, “Under the mandate rule, a district court cannot reconsider issues the
parties failed to raise on appeal.” Riese, 356 F.3d at 584. The parties may not raise issues “foregone
on appeal or otherwise waived, for example because they were not raised in the district court.”
Bell, 5 F.3d at 67. To discern the impact of the mandate rule here, the Court deems it appropriate
to explain the procedural history and the nature of the relief requested in some detail.
In discovery, Plaintiffs requested production of employment-related data in order
to substantiate their claim that Defendants failed to adequately compensate Plaintiffs. Defendants
represented that they did not have the requested data [See Doc. 360 at n.7]. By subpoena, Plaintiffs
obtained third-party data distinguishing stat runs from regularly scheduled deliveries [See Doc.
378 at 12]. Notwithstanding Defendants’ representation that they had no additional records,
Plaintiffs declined to seek summary judgment with respect to the compensability of stat run return
trips. Rather, the issue was contested at trial. Defendants elicited testimony that drivers would not
universally return the required paperwork immediately after a stat run; rather, drivers would
sometimes return paperwork during their next regularly scheduled delivery [See id. at 12-13]. After

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the jury returned a verdict for Defendants, Plaintiffs thereafter moved for a new trial on unrelated
grounds. The Court denied Plaintiffs’ motion and our Court of Appeals affirmed.
Following the mandate, Plaintiffs came to learn of undisclosed ASN/POD Reports
in the custody of Omnicare. The reports identify drivers, deliveries, times, and whether the delivery
was a stat run or a regularly scheduled delivery [See Doc. 360 at 3-4]. To resolve the pending issue,
however, the ASN/POD Reports would have to indicate whether drivers returned the required
paperwork immediately or during a separate regularly scheduled delivery. There is no indication
that the ASN/POD Reports do so.
Plaintiffs contend that all stat run return trips are compensable as a matter of law
based upon the Defendants’ asserted failure to maintain adequate records [See Doc. 379 at 7]. 1
Indeed, the law requires an employer “to come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of the inference to be drawn from
the employee’s evidence.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946);
see Tyson Foods, Inc. v. Bouaphakeo, __ U.S. __, 136 S. Ct. 1038, 1047 (2016) (reaffirming the
burden-shifting framework of Mt. Clemens). Plaintiffs, however, do not dispute that they failed to
raise this issue previously, and it is apparent that Plaintiffs had an opportunity to do so in pre-trial
and post-trial motions. In other words, inasmuch as Defendants failed to maintain adequate
records, that failure had crystallized well before the post-mandate disclosure of the ASN/POD
Reports [see Doc. 360 at n.1].
The concern that Plaintiffs failed to previously raise this issue is not an idle one. “If
no appeal of a judgment is taken . . . the orderly resolution of the litigation requires the district

1

This is necessarily the issue in dispute because Defendants identify anecdotal
evidence that would otherwise raise a genuine issue of material fact as to the compensability of
stat run return trips [See Doc. 378 at 12-13].
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court to recognize those interests served by final judgments and to implement the appellate
mandate faithfully.” Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007). That issues are scrupulously
developed is essential for the orderly administration of justice and for the preservation of judicial
resources. See id. at 465-466 (“Repetitive hearings, followed by additional appeals, waste judicial
resources and place additional burdens . . . on hardworking district and appellate judges.”) (quoting
United States v. O’Dell, 320 F.3d 675, 679 (6th Cir. 2003)). The post-mandate grant of relief from
judgment allows Plaintiffs an opportunity to “fully present[] their case” with the benefit of the
ASN/POD Reports [Doc. 360 at 7], but it does not allow the Court to disregard the law of the case
or our Court of Appeals’ mandate. Given that Plaintiffs’ pending request for relief was not raised
previously and that the ASN/POD Reports do not conclusively resolve the issue presented, the
Court concludes there are no exceptional circumstances to circumvent the mandate rule.
Accordingly, Defendants are entitled to present evidence at trial contesting the compensability of
stat run return trips as they did in the prior trial.

IV.

Accordingly, Plaintiffs’ motion for partial summary judgment [Doc. 376] is
DENIED.
The Clerk is directed to send a copy of this Memorandum Opinion and Order to
counsel of record and any unrepresented parties.
ENTERED: April 10, 2020

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