Connelly, Timothy et al v. Dan Lepke Trucking LLC et al

Filing 187

ORDER denying without prejudice 167 Motion for Summary Judgment by Plaintiffs Timothy Connelly, David Winchell. This case is STAYED pending a decision in Bakkestuen v. Lepke Holdings LLC, No. 2017AP2500 (Wis. Ct. App.). Signed by District Judge James D. Peterson on 5/16/2018. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

TIMOTHY CONNELLY, DAVID WINCHELL,
RAYMOND SCHLICHT, RODNEY SCHLICHT,
SCOTT ERLANDSON, and JEFFREY NEMEC,
Plaintiffs,

ORDER

v.
15-cv-308-jdp
DAN LEPKE TRUCKING LLC and
LEPKE TRUCKING & EXCAVATING LLC,
Defendants.
Plaintiffs Timothy Connelly, David Winchell, Raymond Schlicht, Rodney Schlicht,
Scott Erlandson, and Jeffrey Nemec were truck drivers for defendants Dan Lepke Trucking
LLC and Lepke Trucking & Excavating LLC. Plaintiffs contend that defendants failed to pay
them in accordance with the Fair Labor Standards Act and state law.
Plaintiffs have moved for summary judgment on several issues, Dkt. 167, but the court
will deny the motion without prejudice. A key question raised in the motion is whether
plaintiffs are entitled to additional pay under state law for activities performed before loading
and after unloading their trucks. The same issue is pending before the Wisconsin Court of
Appeals in a closely related case involving some of the same parties, Bakkestuen v. Lepke Holdings
LLC, No. 2017AP2500 (Wis. Ct. App.). Deciding the issue will require resolving a conflict
between the Wisconsin Department of Workforce Development (which concluded that there
was no violation because the employees’ average rate of pay was greater than the minimum
wage) and the trial court in Bakkestuen (which concluded that the employees must be paid for
the activities at issue at the same rate as other work). At the heart of the debate is the scope of

a decision of the Wisconsin Supreme Court, United Food & Commercial Workers Union, Local
1473 v. Hormel Foods Corporation, 2016 WI 13, 367 Wis. 2d 131, 876 N.W. 2d 99.
“It is within the discretion of the court to stay proceedings pending the resolution of
other suits. . . . The power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the cases on its docket with economy of time and effort for itself,
for counsel, and for litigants.” Grice Engineering, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915,
920 (W.D. Wis. 2010) (citing Landis v. North American Co., 299 U.S. 248, 254-55 (1936), and
Cherokee Nation of Oklahoma v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997)). In this
case, it makes sense to allow a state court to decide in the first instance disputed questions of
state law that could have a significant impact on the rights of Wisconsin employees and
employers. And because Bakkestuen is fully briefed and ready for decision, the delay should not
be a long one.
Although plaintiffs are raising additional claims that are not present in Bakke, the court
sees little benefit in resolving this case in piecemeal fashion. Accordingly, the court will deny
plaintiffs’ motion for summary judgment without prejudice. Once the Wisconsin Court of
Appeals issues its decision, the parties should notify this court. At that time, the parties should
also inform the court whether either side believes that supplemental briefing is appropriate or
wishes to stand on the summary judgment materials already on file with this court.

ORDER
IT IS ORDERED that plaintiffs’ motion for summary judgment, Dkt. 167, is DENIED
WITHOUT PREJUDICE, and this case is STAYED pending a decision in Bakkestuen v. Lepke
Holdings LLC, No. 2017AP2500 (Wis. Ct. App.). Once the court of appeals issues its decision,

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the parties should: (1) inform this court of the decision; and (2) state their position on the
question whether supplemental briefing is needed. The court will not change the date of the
November 2018 court trial at this time.
Entered May 16, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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