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

Filing 70

OPINION and ORDER granting 62 Motion to Re-Sequence Deadlines for Pretrial Motions. Defendants' motion regarding the motor carrier exemption will be due May 10, 2016; plaintiffs' response will be due May 31, 2016; and defendants' reply will be due June 10, 2016. The court will rule on the stayed aspect of plaintiffs' motion to compel, Dkt. 30 , and reset all remaining deadlines, including the deadline for dispositive motions and plaintiffs' motion for class certification, if necessary, after it resolves the motor carrier exemption issue. Signed by District Judge James D. Peterson on 4/21/2016. (kwf)

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

TIMOTHY CONNELLY and DAVID WINCHELL,

v.

Plaintiffs,

DAN LEPKE TRUCKING LLC, LEPKE TRUCKING &
EXCAVATING LLC, and DANIEL LEPKE,

OPINION & ORDER
15-cv-308-jdp

Defendants.
Plaintiffs Timothy Connelly and David Winchell filed this proposed collective action
against their employers, defendants Dan Lepke Trucking LLC, Lepke Trucking & Excavating
LLC, and Daniel Lepke, on May 21, 2015. Plaintiffs allege violations of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq., and Wisconsin prevailing wage laws.
Pursuant to discussions with the magistrate judge during a February 16, 2016,
telephone conference, defendants have filed a motion to resequence several pretrial motions
deadlines. Dkt. 62. Defendants ask the court to consider whether plaintiffs are exempt from
FLSA overtime pay under the motor carrier exemption, 29 U.S.C. § 213(b)(1), before the
court considers a motion for class certification under Federal Rule of Civil Procedure 23.
Plaintiffs contend that the court should not delay briefing on class certification and that
defendants have not demonstrated why the court should delay class certification to allow a
dispositive issue to become ripe. In the interests of effective case management, the court will
grant the motion.

BACKGROUND
Plaintiffs and others similarly situated are or were formally employed by Dan Lepke
Trucking LLC or Lepke Trucking & Excavating LLC between 2012 and the present. During
their employment with defendants, plaintiffs drove dump trucks and delivered and dumpedoff materials for highway construction, maintenance, and repair. Plaintiffs allege that
defendants have failed to pay overtime wages in violation of the FLSA and Wisconsin
prevailing wage laws. Without going into great detail here, plaintiffs contend that defendants:
(1) failed to compensate plaintiffs for work performed before they loaded their trucks for the
first time each day and after they unloaded their trucks for the last time each day, in
violation of the FLSA and Wisconsin law; (2) failed to compensate plaintiffs for overtime
work, in violation of the FLSA (when not exempt) and Wisconsin law; (3) deducted wages
from employees’ paychecks for damage to property when the employees did not have the
opportunity to demonstrate that they did not cause the damage, in violation of Wisconsin
law; and (4) failed to pay plaintiffs overtime when they worked more than 40 hours per week
on Wisconsin prevailing wage projects, in violation of Wisconsin law. The court granted the
parties’ joint motion for conditional class certification on January 7, 2016. Dkt. 29.
On February 4, 2016, plaintiffs moved to compel production of two types of
discovery. Dkt. 30 and Dkt. 61. One type—employee payroll records—remains highly
contested, as the magistrate judge discussed in his February 16, 2016, text only order.
Dkt. 61. The magistrate judge stayed this aspect of plaintiffs’ motion to compel, to allow the
court the opportunity to entertain a motion to resequence the dispositive motion and Rule
23 class certification deadlines. The magistrate judge anticipated that defendants would ask
the court “to agree to accept and to rule on a summary judgment motion limited to whether

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the motor carrier exemption applies to this lawsuit, before the parties must file any summary
judgment or class certification motions.” Id. If the court is receptive to resequencing, the
magistrate judge will resolve the pending discovery dispute concerning employee payroll
records if and only if resolving the motor carrier exemption question does not dispose of the
case and the parties proceed to the class certification stage.
As anticipated, defendants filed their motion to resequence on February 26, 2016.
Dkt. 62.

ANALYSIS
Defendants contend that plaintiffs are exempt from FLSA overtime pay under the
motor carrier exemption and that the court should rule on this issue before certifying
plaintiffs’ Rule 23 class. At this juncture, the court needs to decide only whether it makes
good sense to resolve defendants’ forthcoming motion regarding the motor carrier exemption
before ordering discovery and scheduling briefing on plaintiffs’ forthcoming motion for class
certification. The court will not preview the merits of the forthcoming motions, nor will the
court consider the stayed aspect of plaintiffs’ motion to compel.
Federal Rule of Civil Procedure 16(b)(4) provides that the court will modify a
scheduling order only for good cause. Generally speaking, courts should determine whether to
certify a Rule 23 class “[a]s soon as practicable after the commencement of an action[.]”
Chavez v. Ill. State Police, 251 F.3d 612, 630 (7th Cir. 2001) (citing Fed. R. Civ. P. 23(c)).
“This is the preferred policy as ‘the propriety of class certification does not depend on the
outcome of the suit. . . . It is therefore difficult to imagine cases in which it is appropriate to
defer class certification until after decision on the merits.’” Id. (quoting Bieneman v. City of

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Chicago, 838 F.2d 962, 964 (7th Cir. 1988)). But if dispositive issues are ripe for resolution
prior to certification, it may be appropriate to entertain a motion for summary judgment
prior to a motion for class certification. Id. Although “it is the better policy for a district court
to dispose of a motion for class certification promptly and before ruling on the merits of the
case, the failure to follow this preferred procedure does not necessarily amount to reversible
error.” Id. (quoting Mira v. Nuclear Measurements Corp., 107 F.3d 466, 475 (7th Cir. 1997)).
In other words, the court does not always have to resolve class certification prior to ruling on
the merits of a case.
And regardless, Rule 23(c)(1)(A) now provides that “[a]t an early practicable time
after a person sues or is sued as a class representative, the court must determine by order
whether to certify the action as a class action.” The Advisory Committee Notes following the
2003 amendments provide that the old “as soon as practicable” language did not accurately
reflect the fact that a court may, for many valid reasons, “justify deferring the initial
certification decision[,]” including when “[t]he party opposing the class may prefer to win
dismissal or summary judgment as to the individual plaintiffs without certification and
without binding the class that might have been certified.” Other district courts in this circuit
have interpreted the 2003 advisory notes to allow district courts to, when justice so requires
and in the interests of effective case management, consider dispositive motions prior to class
certification. See, e.g., Talley v. NCO Fin. Sys., Inc., No. 06-cv-480, 2006 WL 2927596, at *2
(N.D. Ind. Oct. 12, 2006) (“[C]onsidering the advisory committee notes to the 2003
Amendments to Rule 23, and noting that the Defendant’s Motion for Summary Judgment
will be fully briefed shortly, the Court finds that, in this case, it is in the interests of judicial
economy and efficiency for the Court to rule on the motion for summary judgment prior to

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the motion for class certification in order to determine whether the claim of the named
Plaintiff lacks merit and thus whether the motion for class certification is moot.”).
Here, good cause exists to modify the scheduling order. Defendants do not ask the
court to resolve all of plaintiffs’ claims on the merits prior to considering class certification.
Rather, defendants ask the court to resolve one potentially dispositive issue prior to
considering plaintiffs’ remaining claims and class certification. And it appears that the motor
carrier exemption issue is nearly ripe for review; the parties have been engaged in discovery,
and plaintiffs conducted a Rule 30(b)(6) deposition on April 7, 2016, where, per plaintiffs’
representations, “[a] number of the topics for the deposition [concerned] whether the
Plaintiffs had interstate driving assignments, and their likelihood of being assigned to
interstate driving assignments that they did not receive.” Dkt. 64, at 4.
At this point, the court cannot say whether defendants are likely to prevail on their
forthcoming motion regarding the motor carrier exemption. But the fact that the proposed
resequencing may save the parties—and the court—time and effort if it turns out that
plaintiffs cannot prevail on their FLSA overtime pay claim is good cause to grant the motion. 1

ORDER
IT IS ORDERED that:
1. Defendants Dan Lepke Trucking LLC, Lepke Trucking & Excavating LLC, and
Daniel Lepke’s motion to resequence, Dkt. 62, is GRANTED.
1

Plaintiffs do make one good point: the motor carrier exemption has nothing to do with
plaintiffs’ state law claims and the Rule 23 motion for class certification, and it is not
necessary to resolve the issue before certifying the Rule 23 class. But plaintiffs concede that
were the motor carrier exemption to apply, and were the court to find that defendants do not
owe any overtime wages under the FLSA, the court could consider declining to exercise
supplemental jurisdiction over plaintiffs’ remaining state law claims.

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2. Defendants’ motion regarding the motor carrier exemption will be due May 10,
2016; plaintiffs’ response will be due May 31, 2016; and defendants’ reply will be
due June 10, 2016.
3. The court will rule on the stayed aspect of plaintiffs’ motion to compel, Dkt. 30,
and reset all remaining deadlines, including the deadline for dispositive motions
and plaintiffs’ motion for class certification, if necessary, after it resolves the motor
carrier exemption issue.
Entered April 21, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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