UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF … · 2020-01-22 · UNITED STATES DISTRICT...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION KRYSTINA M. SCOTT, JILLIAN SCOTT, DENETRIA ADAMS, MICHELLE C. HOFFIE and CHARLES J. HOFFIE, SR., individually and on behalf of those similarly situated, Plaintiffs/Counter-Defendants, vs. NOW COURIER, INC. d/b/a NOW COURIER & MESSENGER, INC. Defendant/Counter-Plaintiff.

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Case No. 1:10-cv-00971-SEB-TAB

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION OF FLSA CLASS, CERTIFICATION OF

INDIANA CLASS UNDER FED. R. CIV. P. 23, APPOINTMENT OF CLASS COUNSEL AND JUDICIAL NOTICE

James H. Hanson Robert L. Browning Andrew J. Butcher

Christopher J. Eckhart SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C.

10 West Market Street, Suite 1500 Indianapolis, Indiana 46204

Case 1:10-cv-00971-SEB-TAB Document 55 Filed 05/16/11 of 46 PageID #: 695

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TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................... 1

II. BACKGROUND ................................................................................................................ 2

A. NOW’s Business ...................................................................................................... 2 B. NOW’s Clients ......................................................................................................... 3 C. The Clients’ Transportation and Delivery Needs .................................................... 4 D. The Client’s Requirements ...................................................................................... 5 E. Providing the Transportation and Delivery Services ............................................... 5 1. Routed Work ................................................................................................ 6 2. On-Demand Work ........................................................................................ 8 3. Route Skippers and Backup Drivers ............................................................ 8 F. The Plaintiffs .......................................................................................................... 10 1. Krystina Scott............................................................................................. 10 2. Jillian Scott................................................................................................. 11 3. Denetria Adams ......................................................................................... 13 4. Mrs. Hoffie ................................................................................................. 14 5. Mr. Hoffie .................................................................................................. 15

III. ARGUMENT ..................................................................................................................... 15 A. Plaintiffs’ FLSA Claims Should Not Be Certified Because They Fail to

Demonstrate They are Similarly Situated to the Putative FLSA Class Members as Required Under § 216(B)....................................................................................... 15

1. The Court Should Apply an Intermediate Level of Scrutiny ..................... 15 2. Plaintiffs Are Not Similarly Situated Because their Reclassification

Claims Require an Individualized Analysis ............................................... 17 a. The employment status inquiry is not suited for class-wide

disposition ...................................................................................... 17 b. The evidence as to each of the relevant factors differs among

Contractors ..................................................................................... 19 3. Plaintiffs Are Not Similarly Situated Because their Substantive Claims for

Overtime and Minimum Wage Require an Individualized Analysis ......... 30 4. Plaintiffs’ Motion for Collective Action Fails Because their Evidence is

Limited to the NOW Merrillville Location ................................................ 33 B. Plaintiffs Do Not Satisfy Rule 23’s Commonality, Typicality and Predominance

Requirements ......................................................................................................... 35 1. Plaintiffs’ Claims Are Not Typical Because They Provide No Evidence of

Non-Merrillville Locations ........................................................................ 36 2. Plaintiffs Cannot Satisfy Rule 23(b)(3) on Reclassification Issues ........... 36 3. Plaintiffs Cannot Satisfy Rule 23(b)(3) on Their Substantive Claims ....... 39 IV. CONCLUSION .................................................................................................................. 40


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TABLE OF AUTHORITIES Cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) ......................................................... 39 Aquilino v. Home Depot, U.S.A., Inc., Cause No. 04-04100, 2011 WL 564039, at *7-*10 (D. N.J.

Feb. 15, 2011...................................................................................................................... 29 Barfield v. New York City Health & Hospitals Corp., No. 05-CIV-6319, 2005 WL 3098730, at

*1-*2 (S.D.N.Y. Nov. 18, 2005) ........................................................................................ 22 Botello v. COI Telecom, LLC, Cause No. SA-10-cv-305-XR, 2010 WL 54648424, *6-*7 (W.D.

Tex. Dec. 30, 2010)............................................................................................................ 33 Brown-Pfifer v. St. Vincent Health, Inc., Cause No. 1:06-cv-0236-SEB-JMS, 2007 WL 2757264,

at *7 (S.D. Ind. Sept. 20, 2007) ......................................................................................... 21 Bunyan v. Spectrum Brands, Inc., Cause No. 07-cv-0089, 2008 WL 2959932, at *3-*4 (S.D. Ill.

July 31, 2008)..................................................................................................................... 16 Coan v. Nightingale Home Healthcare, Inc., Cause No. 1:05-cv-0101-DFH-TAB, 2005 WL

1799454, at *1 (S.D. Ind. June 29, 2005) .......................................................................... 16 Clausman v. Nortel Networks, IP 02-0400-C-M/S, 2003 EL 21314065, at *4-*5 (S.D. Ind. 2003) ................................................................................................................. 18 Donihoo v. Dallas Airmotive, Inc., Cause No. CIV.A.3:97-CV-0109-P, 1998 WL 91256, at *1

(N.D. Tex. Feb. 23, 1998) .................................................................................................. 18 Edwards v. Publishers Circulation Fulfillment, 268 F.R.D. 181, 185-89 (S.D.N.Y. 2010) ..................................................................................................... 21, 24, 37 Emig v. Am Tobacco Co., 184 F.R.D. 379, 391 (D. Kan. 1998).................................................... 20 Frankel v. Bally Inc., 987 F.2d 86, 91 (2d Cir. 1993).................................................................... 27 Gonzales v. Hair Club for Men, Lt., Inc., Cause No. 6:06-cv-1762-ORL-28JGG, 2007 WL

1079291, at *3-*4 (M.D. Fla. April 9, 2007) ..................................................................... 34 Hamilton v. State Farm Mut. Auto. Ins. Co., No. IP 00-1718-C-T/K, 2002 WL 664020, at *2-*3

(S.D. Ind. March 13, 2002) ................................................................................................ 22 Hegel v. Brunswick Corp., Cause No. 09-C-882, 2010 WL 2900379, at *5 (E.D. Wis. July 20,

2010) .................................................................................................................................. 40 Hurd v. Monsanto Co., 164 F.R.D. 234, 239-40 (S.D. Ind. 1995) ................................................ 38 INB Nat’l Bank v. Moran Elec. Services, Inc., 608 N.E.2d 702, 708 N.3 (Ind. Ct. App. 1993).... 39 In Re FedEx Ground Package Sys., Inc, Emp’t Practices Litig. 662 F. Supp. 2d 1069, 1083 (N.D.

Ind. 2009) ..................................................................................................................... 18, 24


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In re FedEx Ground Package Sys., Inc., Emp’t Practices Litig., -- F. Supp. 2d --, 2010 WL 5094230, at *28-*29 (N.D. Ind. Dec. 13, 2010) ................................................................ 23

Jonites v. Exelon Corp., 522 F.3d 721, 723-24 (7th Cir. 2008) ...................................................... 32 Kady v. Beg, Cause No. 1:08-cv-1156-SEB-DML, 2010 WL 2291832, *4 (S.D. Ind. June, 2,

2010) .................................................................................................................................. 17 Lady Di’s, Inc. v. Enhanced Servs. Billing, Inc., Cause No. 1:09-CV-340-SEB-DML, 2010 WL

4751659, at *3, *5-*6 (S.D. Ind. Nov. 16, 2010) .................................................. 35, 38, 40 Lallathin v. Ro Ro Inc., Cause No. 1:09-cv-1293-WTL-DML, 2010 WL 2640271, at *1-*2 (S.D.

Ind. 2010 ...................................................................................................................... 16, 33 McReynolds v. Lynch, Cause No. 05 C 6583, 2010 WL 3184179, at *3-*5 (N.D. Ill. Aug. 9,

2010). ................................................................................................................................. 36 Mares v. Caesars Entertainment, Inc., Cause No. 4:06-cv-0060-JDT-WGH, 2007 WL 118877, at

*1-*3 (S.D. Ind. June 10, 2007) ................................................................................... 16, 34 Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind. 1995) ............................ 37 Moss v. Putnam County Hosp., Cause No. 2:10-cv-00028-JMS-WGH, 2010 WL 2985301, at 2-3

(S.D. Ind. July 21, 2010) .................................................................................................... 34 Oplchenski v. Parfums Givenchy, Inc., 254 F.R.D. 489, 500-01 (N.D. Ill. 2008) ......................... 37 Payton v. County of Carroll, 473 F.3d 845, 853-54 (7th Cir. 2007) .............................................. 36 Pfaahler v. Consultants for Architects, Inc., Cause No. 99 C 6700, 2000 WL 19888, at *2-*3

(N.D. Ill. Feb. 8, 2000)........................................................................................... 18, 20, 23 Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 436-37 (N.D. Ill. 2003) ................. 18 Randall v. Rolls-Royce Corp., Cause No. 1:06-cv-860-SEB-JMS, 2010 WL 987484, at *7 (S.D.

Ind. March 12, 2010), aff’d – F.3d --, 2011 WL 1163882 (7th Cir. March 30, 2011) ....................................................................................... 21, 23, 36 Reich v. Homier, 362 F. Supp. 2d 1009, 1013-15 (N.D. Ind. 2005) .............................................. 18 Sheffield v. Orius Corp., 211 F.R.D. 411, 413 (D. Or. 2002) ........................................................ 33 Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010) ............................................................. 35 State Farm Fire & Casualty Co. v. Nokes, No.: 08-cv-312 PPS, 2011 WL 830953, at *7-*8

(N.D. Ind. Mar. 2, 2011) .................................................................................................... 15 Thomas v. The Connor Group, Cause No. 1:06-cv-830-SEB-JMS, 2008 WL 1914181, at *3 (S.D.

Ind. April 28, 2008) ........................................................................................................... 32 Threatt v. CRF First Choice, Inc., Civil No. 1:05-cv-117, 2006 WL 2054372 at *13-*14 (N.D.

Ind. 2006) ........................................................................................................................... 18 Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 948-49 (M.D. Fla. 1994) ................................. 34


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U.S. v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) ........................................................................ 22 Veerkamp v. U.S. Security Associates, Inc., Cause No. 1:04-CV-0049-DFH-TAB, 2005 WL 775931, at *2-*3 (S.D. Ind. March 15, 2005) ................................................................................ 34 Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) .............................................. 40 Walker v. Bankers Life & Casualty Co., No. 06 C 6906, 2008 WL 2883614, at *11 (N.D. Ill. July

28, 2008) ...................................................................................................................... 37, 39 Wilson v. McCray v. Stokes, No. 01-C-1929, 2003 WL 22901569, at *6 (N.D. Ill. Dec. 9, 2003) .......................................................................................... 24 Statutes and Rules 29 U.S.C. § 206 .................................................................................................................... 1, 17, 30 29 U.S. C. § 207 ................................................................................................................... 1, 17, 30 29 U.S.C. § 216 .......................................................................................................................... 1, 15 Ind. Code § 22-2-6 ........................................................................................................................... 1 29 C.F.R. § 778.112 ....................................................................................................................... 31 Fed. R. Civ. P. 23 ..................................................................................... 1, 2, 15, 35, 36, 37, 38, 39 Fed. R. Evid. 802 ........................................................................................................................... 22 Fed. R. Evid. 901 ........................................................................................................................... 22


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Defendant, NOW Courier, Inc. d/b/a NOW Courier & Messenger, Inc. (“NOW”), by

counsel, respectfully submits its Response in Opposition to Plaintiffs’, Krystina M. Scott

(“Krystina”), Jillian Scott (“Jillian”), Denetria Adams (“Adams”), Michelle C. Hoffie (“Mrs.

Hoffie”), and Charles J. Hoffie, Sr. (“Mr. Hoffie”) (collectively, “Plaintiffs”), Motion for

Conditional Certification of FLSA Class, Certification of Indiana Class Under Fed. R. Civ. P. 23,

Appointment of Class Counsel and Judicial Notice (ECF No. 43) (“Motion”).

I. INTRODUCTION

In their Complaint, Plaintiffs assert claims for unpaid overtime and minimum wages

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206-07 (Count I), unlawful

deductions under the Indiana Wage Deduction Statute, Ind. Code § 22-2-6 (Count II), rescission

(Count III), declaratory relief (Count IV), injunctive relief (Count V), and unjust enrichment

(Count VI). In order to succeed on these claims, Plaintiffs must prove, in addition to the

substantive elements of these claims, that they were employees (as opposed to independent

contractors) during their relationship with NOW. NOW maintains that the Plaintiffs were

independent contractors, not employees, and that, therefore, Plaintiffs’ claims fail as a matter of

law.

In the present Motion, Plaintiffs move the court to conditionally certify a federal

collective action under §216(b) of the FLSA and a class action on Plaintiffs’ state law claims

under Federal Rule of Civil Procedure 23 (“Rule 23”). Plaintiffs have failed to satisfy the

requirements of both § 216(b) and Rule 23 for several reasons. First, Plaintiffs have not

demonstrated they are similarly situated as the federal class members they seek to represent.

Specifically, Plaintiffs’ federal claims are contingent upon their argument that NOW

misclassified them as independent contractors instead of employees. Determining whether


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Plaintiffs and the putative class members were NOW’s employees under the FLSA requires a

fact extensive, individualized analysis of each driver’s daily working relationship with NOW.

As several courts have held, this type of individualized inquiry is not suited for disposition on a

class-wide basis. Aside from the individualized nature of the inquiry into the Plaintiffs’

employment status, the FLSA permits employers to average an employee’s weekly earnings for

purposes of compliance with the overtime and minimum wage provisions. Therefore, in order to

succeed on the merits of their claims under the FLSA, Plaintiffs must demonstrate that, in a

given workweek, they were not paid the minimum wage or overtime hours for the actual hours

they worked. This inquiry is necessary to establish liability, not damages, and the evidence in

support of Plaintiffs’ and the putative class members’ claims will differ from driver to driver.

Similarly to the employment status inquiry, this sort of individualized inquiry with respect to the

merits of Plaintiffs’ substantive claims is not suited for disposition on a class-wide basis.

Therefore, with respect to Plaintiffs’ FLSA claims, Plaintiffs’ Motion should be denied.

Second, with respect to Plaintiffs’ Motion under Rule 23, Plaintiffs must also

demonstrate they are employees rather than independent contractors under Indiana’s 10-factor

test to determine employment status. Like the employment status inquiry under the FLSA,

determining whether a particular individual was NOW’s employee requires an individualized

inquiry into the particular employee’s daily relationship with NOW. As such, Plaintiffs do not

satisfy the commonality or typicality prongs of Rule 23(a). Moreover, Plaintiffs have not

demonstrated the claims can be presented by using evidence that is common to the entire class.

Accordingly, Plaintiffs’ motion to certify a class under Rule 23 should be denied.

II. BACKGROUND

A. NOW’s Business


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NOW partners with its clients to provide logistics, warehouse, and delivery services.

These services include five main areas: 1) analyzing client procedures and logistical needs, 2)

recommending and implementing appropriate logistics and delivery plans, 3) providing

transportation and delivery services – these are the services Plaintiffs perform that they are

challenging on behalf of themselves and other independent contractor drivers under contract with

NOW (the “Contractors”), 4) arranging for air services, and 5) providing warehousing services.

Affidavit of John Durbin (“Durbin Aff.”) (attached hereto as Exhibit A),¶ 3.

NOW started in Indianapolis, Indiana in 1986 and then opened the following branch

locations in Indiana: South Bend (1992), Fort Wayne (1992), Merrillville (2005), and Evansville

(2007); as well as branch locations in Chicago, Illinois (1999), Louisville, Kentucky (2004), and

Cincinnati, Ohio (2011). The branch locations have been opened to accommodate one or more

client’s needs. Typically, over time, the branch locations have increased the number of clients

they serve, which necessarily increases the amount and type of client work available for

Contractors. Id., ¶ 4.

In descending order, currently the largest NOW locations with the most clients and the

most varied client work available for Contractors are as follows: Indianapolis; Fort Wayne;

Louisville, Kentucky; South Bend; Evansville; Merrillville; Chicago, Illinois; and Cincinnati,

Ohio. Id., ¶ 5.

B. NOW’s Clients

NOW’s clients fall into three basic industries: financial/professional, trade/industrial, and

medical. The financial/professional clients include banks, professional firms (e.g., legal,

accounting), government agencies, insurance companies, travel agencies, mortgage/title

companies, and payroll processing. The trade/industrial clients include wholesale distributors,


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auto parts and office supply stores, construction firms, publishing companies, and computer

companies. The medical clients include hospitals, laboratories, pharmacies, assisted living

facilities, and blood collection centers. Durbin Aff., ¶ 6.

C. The Clients’ Transportation and Delivery Needs

One aspect of NOW’s business is to provide transportation and delivery services to meet

its clients’ needs, and within each industry, each client’s needs are distinct. For example, the

financial/professional industry clients’ needs tend to involve only smaller packages, whereas the

trade/industrial clients may require delivery of larger, heavier items, necessitating a larger

vehicle such as a full size van or a box truck. Many of the medical clients need Contractors who

are trained and certified in the handling of bloodborne pathogens. Id., ¶ 7.

The clients’ needs within each industry vary as well. Some clients have pick-ups and

deliveries that they need to be completed on a regular, fixed and/or scheduled basis. NOW refers

to this type of work as “routed” work. This “routed work” includes regular client-scheduled

pick-ups and deliveries that may be on a daily or an intermittent basis; that may be on tight time

schedules; or that may have broad delivery time windows. Routed work includes payroll

deliveries that are scheduled to be made every day, but the times for delivery are unscheduled

and Contractors deliver to different companies every day. Id., ¶ 8.

Some clients do not have needs on a regular basis, but do have pick-up and delivery

needs at infrequent or immediate times. Such clients may have daily needs but only require that

pick-up and delivery occur sometime that day. Or, they may only have needs at infrequent or

random times. They may have immediate needs or needs for unscheduled pick-ups. NOW calls

this type of work “specials,” “STAT” or “on-demand” work. Id., ¶ 9.


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Some clients require or prefer the services of a regular Contractor at the will of that

client. Such clients may have that Contractor run a regular route, or they may have the

Contractor report to them and then direct the Contractor based on the client’s particular need for

the day. Such clients may use that Contractor for the full day or only part of the day. NOW calls

such a Contractor an “exclusive use” Contractor, and that Contractor could be performing on-

demand and/or routed work, or other services requested by the client. Id., ¶ 10.

Some clients have the need for night distribution. Some of these clients have fixed drop

times, and some have drop times that are very flexible. Id., ¶ 11.

Some clients need warehousing services so they contract with NOW for such services.

Such clients therefore have pick-ups and deliveries that occur at a particular NOW warehouse

facility. NOW provides warehousing services at some of its locations. Id., ¶ 12.

D. The Clients’ Requirements

NOW’s clients also have varying requirements regarding their transportation and delivery

service needs. Some clients, such as banks, require a specific order for the stops on a particular

route. Other clients, such as payroll companies, allow the Contractor to decide the order of

stops. Some clients want to communicate directly with the Contractor regarding deliveries,

others do not. Some clients require updates regarding the status of pick-ups and deliveries (with

varying requirements of the frequency and type), others do not. Clients have different scanning

and paperwork requirements regarding the services being provided by the Contractor. Clients

also have different requirements regarding the particulars as to the pickup and delivery of their

packages, with some clients having requirements as to the location for entering and leaving the

client location. Id., ¶ 13.

E. Providing the Transportation and Delivery Services


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The Contractors contract with NOW for the opportunity to perform transportation and

delivery services needed by NOW’s clients. Id., ¶ 14. The services performed by Contractors

depend upon the NOW client work available, the Contractors’ choice of the type of work

desired, and the Contractor’s schedule. Id., ¶ 15; Affidavit of Kevin Branham (“Branham Aff.”)

(attached hereto as Exhibit B), ¶ 6; Affidavit of Jim Meyerrose (“Meyerrose Aff.”) (attached

hereto as Exhibit C), ¶ 5. More client opportunities are available at some NOW locations than

others. Durbin Aff., ¶ 14.

Contractors can choose from basically two types of work, if available: routed work

(which includes exclusive use and night distribution work) and on-demand work. Contractors

who perform route skipper/backup driver work, as Plaintiffs did, make up less than 10% of the

total fleet of NOW’s Contractors. Id., ¶ 15.

1. Routed Work

Routed work varies based on the client. Some routed work is fixed in that clients do not

give Contractors much flexibility on the times for delivery or the sequence of stops. Examples

of such fixed routes include some pharmaceutical drug deliveries (because of nurse shift changes

and patients waking up needing medication), and some bank deliveries (due to banks’ practices

involving items processing). Id., ¶ 16; Affidavit of Jeff Wyatt (“Wyatt Aff.”) (attached hereto as

Exhibit D), ¶ 4. Some routed work, however, is not fixed in that the Contractor is free to

determine starting times and the sequence of stops and need only make pick-ups and deliveries

within certain broad time frames. Durbin Aff., ¶ 17; Affidavit of Kevin White (“White Aff.”)

(attached hereto as Exhibit E), ¶ 2; Affidavit of Terry Woods (“Woods Aff.”) (attached hereto as

Exhibit F), ¶ 2; Affidavit of Arnold Lancaster (“Lancaster Aff.”) (attached hereto as Exhibit G), ¶

2; Meyerrose Aff., ¶ 4; Branham Aff., ¶ 7; Wyatt Aff., ¶ 4; Affidavit of Dave Jones (“Jones Aff.”)


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(attached hereto as Exhibit H),¶ 3; Affidavit of Chris Hoskinson (“Hoskinson Aff.”) (attached

hereto as Exhibit I), ¶ 3. Payroll deliveries are an example of such non-fixed routed work in

which the Contractor may deliver the payrolls in any sequence of stops, but must complete all

deliveries by a set time, noon for some clients. Durbin Aff., ¶ 16.

Contractors choose the type of routed work they want, based on availability. Id., ¶ 17.

Opportunities for routed work in Indianapolis are posted at the NOW Indianapolis facility on a

daily basis. Id., ¶ 18. Contractors can place bids on the routes they want. Id., ¶ 17; Woods Aff.,

¶ 3. Frequently the routes posted are one- or two-stop routes. Durbin Aff., ¶ 17. Approximately

one-half of the Contractors at the Indianapolis location create their day’s work through the

posted routed work. Id., ¶ 17. At the branch locations, there is less posting of routed work

because the client opportunities are not as prevalent. Id., ¶ 17. In addition to posted routes,

Contractors obtain routes through communications with other Contractors and NOW, and by

accepting routes available when the Contractor signs his or her contract with NOW. Id., ¶ 18;

see also Branham Aff., ¶ 6; Meyerrose Aff., ¶ 4; Hoskinson Aff., ¶ 5.

Contractors will often choose one type of routed work in the morning and another in the

afternoon. For example, a Contractor may deliver a payroll route in the morning and then bank

runs in the afternoon. Another example of mixing routes involves the night distribution routes.

There are clients in the Indianapolis, Fort Wayne, South Bend, and Louisville locations whose

products must be distributed during the night. The needs of these customers vary daily so the

Contractors create their own order of deliveries depending on the client needs, and then deliver

based on the fixed or non-fixed client drop times, commingling those deliveries as applicable.

The method of compensation for routed work has varied over time and at different locations. For


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example, some routed work is paid by the stop, while other routed work is paid by the route on a

fixed basis. Durbin Aff., ¶ 18.

2. On-Demand Work

On-demand work also varies based on the client. Id., ¶ 19. There are Contractors who

only do on-demand work. Id.; Meyerrose Aff., ¶ 5. Some locations, such as Merrillville,

Evansville, and Cincinnati, do not have Contractors handling on-demand work exclusively.

Durbin Aff., ¶ 19; Affidavit of Jeff Powell (“Powell Aff.”) (attached hereto as Exhibit J), ¶ 3.

There are Contractors who provide on-demand services exclusively for one client. Durbin Aff., ¶

19. An on-demand Contractor does not have any scheduled availability. Id. Rather, the

Contractor chooses when he or she wants to be available to make deliveries. Id. To make it

known to NOW that the Contractor is available to make deliveries, the Contractor typically logs

in using a Nextel phone system. Id. At that point, NOW informs the Contractor of on-demand

deliveries that are available. Id. When the Contractor decides to no longer be available for on-

demand deliveries for the day, the Contractor simply logs out of the system. Id. During the day,

Contractors and NOW communicate to determine what other on-demand pick-ups and deliveries

are available. Contractors doing routed work will often seek on-demand work to make extra

money. Id. The opportunities for on-demand work vary among the NOW locations, with the

branch locations having fewer opportunities because the client needs differ. Id. On-demand

work is typically paid on a percentage basis but has also been paid as part of a backup driver’s

fixed compensation. Id.

3. Route Skippers And Backup Drivers

Route skippers are Contractors who cover routed work for Contractors who are

unavailable to handle a particular route on a given day. Backup drivers are Contractors who


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cover routed work and/or on-demand work that is not being handled by Contractors. Route

skipper/backup driver work varies based on the NOW location out of which the Contractor is

based and on whether other Contractors are working. Route skippers/backup drivers generally

are to be available (by phone or other communication source) for a specific period of time to

handle deliveries for a Contractor who is not providing services that day, and for on-demand

deliveries as applicable. The specified period of time varies based on the NOW location because

the services performed by a route skipper/backup driver are entirely dependent on the clients in

that location, the type of services those clients need, and the availability of other Contractors at

that location. Id., ¶ 20.

The method of compensation for route skippers/backup drivers has varied over time and

at the different NOW locations. Id., ¶ 21. For example, Contractors have been paid: a flat rate to

be available regardless of the number of hours actually worked, Id.; Deposition of Krystina Scott

(“K.S. Dep.”) (attached hereto as Exhibit K)1 at 119; a percentage of the work performed, Durbin

Aff., ¶ 22; ECF No. 45-17, App. B; by the stop, Durbin Aff., ¶ 21; a variable minimum for the

delivery, Durbin Aff., ¶ 21; and a combination of different compensation methods. Id. Route

skippers/backup drivers are not typically paid to be available. Rather, they are only paid if they

provide services during the time they are available. This is unlike the circumstances involving

the named Plaintiffs in Merrillville. Id.

At all locations, route skippers/backup drivers can earn more compensation for additional

work performed beyond their services as route skippers/backup drivers. When route

skippers/backup drivers are not making deliveries, they are free to do whatever they want, 1 In support of its response to Plaintiffs’ Motion, NOW has also submitted portions of the transcripts from the other Plaintiffs’ and Opt-In Plaintiff Bonnie Scott’s depositions. See Deposition of Jillian Scott (“J.S. Dep.”) (attached as hereto as Exhibit L); Deposition of Denetria Adams (“D.A. Dep.”) (attached hereto as Exhibit M); Deposition of Michelle Hoffie (“M.H. Dep.”) (attached hereto as Exhibit N); Deposition of Charles Hoffie (“C.H. Dep.”) (attached hereto as Exhibit O); and Deposition of Bonnie Scott (“B.S. Dep.”) (attached hereto as Exhibit P).


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whether it be handle personal or family matters, return home,2 eat, or simply do nothing. Id., ¶

22.

F. The Plaintiffs

Plaintiffs and Opt-In Plaintiff, Bonnie Scott, all worked exclusively out of the Merrillville

location while operating as independent contractors under contract with NOW. K.S. Dep. at 34-

35; J.S. Dep. at 119, 124; D.A. Dep. at 15; M.H. Dep. at 54; C.H. Dep. at 24-25; B.S. Dep. at 54-

55. Interestingly, several of the named Plaintiffs are related to each other. For example, Bonnie

Scott is Krystina’s mother and Jillian’s mother-in-law. J.S. Dep. at 45. Jillian is married to

Krystina’s brother, Dave Scott. Id. Mr. and Mrs. Hoffie are Jillian’s aunt and uncle,

respectively. Id. Except for Adams, all of the Plaintiffs worked for NOW while Jillian was a

NOW office employee.3 K.S. Dep. at 28; M.H. Dep. at 100; C.H. Dep. at 56-57. Each Plaintiff’s

individual relationship with NOW is described below.

1. Krystina Scott

Krystina Scott contracted with NOW from June 2007 to November 2009. Declaration of

Krystina Scott (“K.S. Decl.”) (ECF No. 45-37), ¶ 2. Krystina claims she was under duress to

sign the Independent Contractor Agreement and Jillian, her “boss,” told her to sign it. K.S. Dep.

at 28, 53-54. Krystina was initially a route skipper, primarily covering bank routes for NOW’s

main client in Merrillville. Id. at 27-28, 30, 135-36. As a route skipper, she did not have to work

a lot of hours during the 7:00 a.m. to 7:00 p.m. time period she was required to be available, and

only worked about five to seven hours depending on the day. Id. at 137. As time progressed and

NOW obtained more clients, Krystina became a backup driver and what Krystina describes as 2 If the route skipper’s home is not close enough for the route skipper to be available to meet a client’s needs and he or she is being paid to be available, then the route skipper informs NOW that he or she is “unavailable,” and his or her compensation is reduced in a proportionate amount. Durbin Aff., ¶ 22. 3 Jillian Scott was an employee with a managerial role at the Merrillville location from June 25, 2007, to October 27, 2008. J.S. Dep. at 50.


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NOW’s “go-to gal.” Id. at 27, 29-30. As a backup driver, Krystina said there was “tons more

stuff” and that “it wasn’t just route skipping” but “anything they needed,” including “personal

favors,” picking people up, and “jumping people’s cars.” Id. at 32-33, 201. The work

environment at Merrillville contributed to her belief that she would be “fired” if she did not run

personal errands, even if no one said so specifically. Id. at 211-13. Krystina claims that, over

time, her work became more detailed, busier, and more controlled by NOW. Id. at 56, 86-87.

She claims that, as a consequence of this increase in work, she started to believe she was an

employee, even though her original belief was that, consistent with what Jillian told her, she was

going to be an independent contractor. Id. at 46-48, 55-56.

As a route skipper/back up driver, Krystina was paid $600.00 per week regardless of the

amount of work she performed. Id. at 67, 72, 94. While under contract, Krystina also handled

routed work before 7:00 a.m. and after 7:00 p.m. for which she received additional

compensation, but she claims she was not free to decline to do that work. Id. at 50, 59-60, 62-64,

72- 73, 78-79, 82, 84-86. Ultimately, Krystina’s contract was terminated, and when NOW

informed Krystina her contract had been terminated, she told NOW, “I’ll see you in court,” Id. at

68, and said “I don’t have to do anything to get paid.” Id. at 67.

2. Jillian Scott

Jillian contracted with NOW as an independent contractor driver on two different

occasions: from October 23, 2006, to June 21, 2007, and from October 27, 2008, to the present.

Declaration of Jillian Scott (“J.S. Decl.”) (ECF No. 45-1), ¶ 2; J.S. Dep. at 49-50, 97. In

between, she was an employee basically running the NOW Merrillville office under the

supervision of Jeff Powell (“Powell”), the Manager at NOW’s Merrillville and Chicago

locations. Powell Aff., ¶ 2; J.S. Decl., ¶ 2; J.S. Dep. at 49-50, 92-93, 97-98. Under her first


12

contract, Jillian operated as a route skipper/back-up driver4 (being available from 7:00 a.m. to

7:00 p.m. and paid $600.00/week). J.S. Dep. at 50-51, 53-55. She also put checks together with

route sheets, did personal favors for Powell, and voluntarily handled routed work when offered

by NOW. Id. at 52-55, 69-70, 74, 76. Jillian received additional compensation for this routed

work and could have rejected it when it was offered. Id. at 53-55, 75-77. Under her second

contract, she was a route driver and worked in the Merrillville office helping Powell around the

office for three hours in the mornings before she started her routed work. Id. at 50-51, 54-55, 97,

156, 164. Jillian was approached about becoming an office employee because the Merrillville

office was taking on more accounts and they needed more help. Id. at 79-80. Jillian stopped

working as an office employee and became a Contractor again because she could not handle

being on call 24 hours a day and missing time with her family. Id. at 153. Jillian had asked Jeff

if she could go back to being a driver and if Jeff could get someone to take her office employee

job. Id. at 154.

While under contract with NOW, Jillian has worked, and still does work, as an

independent contractor driver delivering medications for CBT (now CTA), a courier company,

on weekday mornings. Id. at 12-13, 15, 17-18, 21, 175-78. She also works as an independent

contractor boss/manager for Prestige, a courier company, for which she acts as the contact person

for the Prestige independent contractor drivers. Id. at 21-23, 25-27, 41, 119, 175. While

working with Prestige, Jillian was involved in having Mr. Hoffie, Bonnie Scott, Krystina, and

Steve Young, an opt-in plaintiff, drive for Prestige. Id. at 28-29, 34, 42-43.

Jillian had to have a Security Threat Assessment (“STA”) certification for some of the

deliveries she made. Id. at 169. To earn extra money, Jillian handled routes both before and

4 Jillian testified that she believes route skipper is the same as backup driver. J.S. Dep. at 229.


13

after her regular tasks and on the weekend, which she voluntarily chose to do. Id. at 53-55, 73-

77, 168, 237, 245-46. Jillian purchased a van specifically to handle an Omnicare route for

NOW, and she only uses it for work purposes, including her work with the courier company

CTA. Id. at 18, 157, 162, 179.

3. Denetria Adams

Adams has been under contract with NOW since May 28, 2009. D.A. Dep. at 12, 71, 74.

For about the first eight months, she was a route skipper/backup driver5 (from 7:00 a.m. or 8:00

a.m. to 7:00 p.m. or 8:00 p.m.) handling primarily routed work, being compensated based, not on

a fixed amount to be available, but on a percentage basis (26% under her contract) of the work

she did. Id. at 6-7, 11, 13, 17, 43-47, 52, 73; ECF No. 45-17, App. B. While she was a route

skipper/backup driver, Denetria claims the NOW Merrillville office required Denetria to sit in

her vehicle out in front of the NOW Merrillville office or sit in the office. D.A. Dep. at 53, 58-

59. Denetria would sit in her car for hours waiting until something became available, she did not

believe she could leave, she ate in her car, brought everything with her in her car, and “a lot of

time I slept.” Id. at 13, 59, 61, 110. Denetria got tired of being a route skipper/backup driver

because she was sitting more than working, so she “put in for the payroll route and I put in for

the Centier route (which both had become available), and they in turn granted me that wish.” Id.

at 13, 18, 36. She “decided to get a route because being a backup driver or route skipper, I

wasn’t making any money,” and she wanted something “a little more reliable” and to “stabilize”

her compensation. Id. at 11-12.

From that time forward, Denetria has basically handled a payroll route in the morning

and a Centier Bank route in the afternoon. Id. at 43-44. For extra money, she has agreed to

cover weekend routes for other Contractors, make bone marrow pickups and deliveries, and 5 Denetria testified that she believes route skipper is the same as backup driver. D.A. Dep. at 8.


14

make pickups and deliveries to Oak Forest, Illinois. Id. at 9-10, 12, 21-23, 25-26, 43-44.

Denetria has asked for additional opportunities to make more money, but has been told there is

nothing available at the times she requested. Id. at 26, 38-42. On the morning payroll route she

handles, Denetria believes she must be available to handle work for NOW until noon even if she

finishes the route earlier than noon. Id. at 133-35, 139-40. On a payroll route, Denetria asked to

not make deliveries on Mondays because she was losing money in gas and NOW accommodated

her request. Id. at 30.

4. Mrs. Hoffie

Mrs. Hoffie contracted with NOW from October 2007 until July 2009. M.H. Dep. at 34,

109-10. She initially provided services for both NOW and another courier, Prestige Delivery

Systems, but later decided to contract with NOW on a full-time basis. M.H. Dep. at 20-21, 37-

38, 40. Mrs. Hoffie worked as route skipper/back-up driver for most of her contract, but chose to

switch to a route driver in May 2009 to decrease her workload. Id. at 68-69. She handled bank

routes, payroll routes, Omnicare routes and medical routes, and her workload changed over time.

Id. at 44-45, 151. Her daily activities would vary, as “every day was different” and “a lot of [the

independent contractors’] experiences were individual[ized].” Id. at 44-45, 107. To make extra

money, Mrs. Hoffie would sometimes accept weekend work or evening routes. Id. at 104-05,

139-40. However, she did not always accept those routes when they were offered to her and

received no repercussions from NOW for declining this additional work. Id. at 53-54, 139-40.

5. Mr. Hoffie6

6 Mr. Hoffie testified at his deposition that he takes medication that precludes him from testifying accurately about the events that occurred while he contracted with NOW. C.H. Dep. at 152-153. Despite the adverse affect the medication has on his memory, Mr. Hoffie signed a declaration and interrogatory responses under the penalties of perjury in which he testifies about the purported events that occurred while he contracted with NOW. See generally ECF No. 45-31; C.H. Dep. at 100-102. Mr. Hoffie says his memory loss may account for the several paragraphs of his declaration he directly refuted in his deposition, and also his inability to recall events that he previously claimed to remember in a verified interrogatory response submitted several weeks prior to the deposition. See, e.g., C.H.


15

Mr. Hoffie contracted with NOW from October 2007 until February 2009, and never

believed he was an independent contractor. C.H. Dep. at 91, 155. He was a route driver for all

but two weeks of his contract, during which time he was a route skipper/back-up driver. Id. at

26-27. Mr. Hoffie principally made Centier Bank deliveries in the Merrillville area. Id. at 11,

29, 33-34. While under contract with NOW, Mr. Hoffie purchased a more fuel efficient vehicle

to increase his profits and utilized a United States Postal Service flag on his car to maximize his

efficiency while making deliveries. Id. at 62-63, 70-71. He recalls attempting to negotiate for a

new route. Id. at 70.

III. ARGUMENT

Plaintiffs move to certify a collective action under 29 U.S.C. § 216(b) on Count I of their

Complaint. In addition, Plaintiffs move to certify a class pursuant to Rule 23 for Counts II

through VI of their Complaint. For the reasons stated below, Plaintiffs’ Motion should be denied

in full.

A. Plaintiffs’ FLSA Claim Should Not Be Certified Because They Fail To Demonstrate They Are Similarly Situated To The Putative FLSA Class Members As Required Under § 216(b)

1. The Court Should Apply An Intermediate Level of Scrutiny

“When deciding whether to certify a collective action, the court considers the evidence to

determine whether the representative plaintiff has made an initial threshold showing that he is

similarly situated to the employees whom he seeks to represent.” Mares v. Caesars

Dep. at 48, 101-102. For example, Mr. Hoffie testified that he recalls working less than 40 hours a week for a large portion of the time he contracted with NOW—statements that are inconsistent with language in the Amended Complaint and his declaration. Id. at 60-61; Amended Compl. (ECF No. 29), ¶ 60; C.H. Decl., ¶ 8; see also State Farm Fire & Casualty Co. v. Nokes, No.: 08-CV-312 PPS, 2011 WL 830953, at *7-*8 (N.D. Ind. Mar. 2, 2011) (ruling affidavit inadmissible where discrepancies existed between it and deposition testimony). NOW respectfully requests that the Court consider Mr. Hoffie’s inability to accurately recall events when deciding what, if any, weight to afford his oscillating testimony.


16

Entertainment, Inc., Cause No. 4:06-cv-0060-JDT-WGH, 2007 WL 118877, at *2 (S.D. Ind. Jan.

10, 2007) (citing Coan v. Nightingale Home Healthcare, Inc., Cause No. 1:05-cv-0101-DFH-

TAB, 2005 WL 1799454, at *1 (S.D. Ind. June 29, 2005)). The burden is on the representative

plaintiff to demonstrate a “factual nexus” connecting the plaintiff to the purported similarly

situated individuals. Lallathin v. Ro Ro Inc., Cause No. 1:09-cv-1293-WTL-DML, 2010 WL

2640271, at *1-*2 (S.D. Ind. 2010) (denying motion collective action where plaintiff’s only

evidence of “factual nexus” connecting her to purported similarly situated individuals at other

locations was that she had spoken to them and they said their job requirements were the same as

hers).

Although district courts in the Seventh Circuit generally apply a two-part test to

determine whether the representative plaintiff is similarly situated to the putative class members,

district courts have applied a more demanding intermediate level of scrutiny where the parties

have already engaged in some but not all discovery. See, e.g., Bunyan v. Spectrum Brands, Inc.,

Cause No. 07-cv-0089, 2008 WL 2959932, at *3-*4 (S.D. Ill. July 31, 2008). Under this

approach, the court combines the two-step process and closely examines the evidence presented

by the parties in analyzing whether the representative plaintiffs have demonstrated they are

similarly situated to the putative class members. If the plaintiffs make the necessary showing,

the court conditionally certifies the collective action, the parties continue discovery, and the

defendant is still permitted to file a motion for decertification at the end of discovery. Id. Here,

the case has been on the docket for eleven (11) months, and the parties have engaged in

significant, but not all discovery. As opposed to a typical motion to certify a collective action,

where the evidence is generally limited to affidavits and the allegations in the complaint, here all


17

of the named plaintiffs and the opt-in plaintiff declarant have been deposed. Therefore, the

Court should apply the more reaching inquiry under the intermediate approach.

In any event, Plaintiffs cannot establish they are similarly situated to the putative class

members under either method.

2. Plaintiffs Are Not Similarly Situated Because Their Reclassification Claims Require An Individualized Analysis

Plaintiffs contend NOW violated the FLSA’s overtime and minimum wage provisions.

29 U.S.C. §§ 206-207. The FLSA’s overtime and minimum wage provisions do not apply unless

there exists a valid employer-employee relationship. Kady v. Beg, Cause No. 1:08-cv-1156-

SEB-DML, 2010 WL 2291832, *4 (S.D. Ind. June 2, 2010) (citations omitted). Whether a

worker is an employee or an independent contractor is a legal, rather than a factual, question. Id.

To determine whether an individual is an employee or an independent contractor under the

FLSA, courts within the Seventh Circuit apply a 6-factor “economic realities” test based upon a

totality of the circumstances. Id.7 Under this test, “employees are those who as a matter of

economic reality are dependent upon the business to which they render service.” Id. In applying

this test, courts do “not look to one isolated factor, but to the totality of the individual’s work

activity.” Id.

a. The employment status inquiry is not suited for class-wide disposition.

Plaintiffs cannot show they are similarly situated to the putative class members because the

determination whether any driver is an employee or independent contractor necessarily requires

an individualized inquiry, based upon the totality of the circumstances, into each individual’s

7 These factors include: (1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer's business. Kady, 2010 WL 2291832, at *4.


18

relationship with NOW. In re FedEx Ground Package Sys., Inc., Emp’t Practices Litig., 662 F.

Supp. 2d 1069, 1083 (N.D. Ind. 2009) (denying motion for collective action because, among

other reasons, misclassification determination required individualized inquiry). Thus, in FedEx,

the Court denied the plaintiff truck drivers’ motion to certify a collective action on their

misclassification claim, because the court would have had to “take into consideration the actual

history of the parties’ relationship, necessitating an individualized examination of the multiple

factors relating to each drivers’ employment.” Id. Therefore, the plaintiffs failed to demonstrate

they were substantially similar to the proposed class “[b]ecause the evidence pertaining to such

factors varie[d] in material respects throughout the proposed class.” Id.; see also Pfaahler v.

Consultants for Architects, Inc., Cause No. 99 C 6700, 2000 WL 198888, at *2-*3 (N.D. Ill. Feb.

8, 2000) (denying motion for collective action in misclassification case due to individualized

inquiry).8 As these cases demonstrate, NOW’s decision to classify Plaintiffs and the Contractors

as independent contractors instead of employees is not sufficient by itself to demonstrate

Plaintiffs and the Contractors are similarly situated.

As demonstrated below, here, as in FedEx, the individualized nature of Plaintiffs’ and

putative class members’ claims dictate that the FLSA claims should not be tried on a class-wide

basis. Indeed, Plaintiffs’ attempt to demonstrate NOW treated all of its drivers the same is

undercut by Plaintiffs’ own deposition testimony and experiences with NOW. Each driver’s 8 Courts have denied motions to proceed on a representative basis in other contexts that require an individualized assessment of the particular plaintiff’s job duties. See Clausman v. Nortel Networks, IP 02-0400-C-M/S, 2003 EL 21314065, at *4-*5 (S.D. Ind. 2003) (de-certifying collective action due to individualized inquiry regarding applicability of FLSA exemption); Threatt v. CRF First Choice, Inc., Civil No. 1:05-cv-117, 2006 WL 2054372, at *13-*14 (N.D. Ind. 2006) (decertifying class where applicability of FLSA exemption required individualized analysis); Reich v. Homier, 362 F. Supp. 2d 1009, 1013-15 (N.D. Ind. 2005) (denying motion for collective action because applicability of loaders exemption to the FLSA required individualized inquiry, making plaintiff not similarly situated); Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 436-37 (N.D. Ill. 2003) (denying Rule 23 motion to certify a class for Title VII failure to promote claim because claim required individualized analysis of each individual’s qualifications); Donihoo v. Dallas Airmotive, Inc., Cause No. CIV.A.3:97-CV-0109-P, 1998 WL 91256, at *1 (N.D. Tex. Feb. 23, 1998) (“an inquiry into the employee’s specific job duties . . . is not appropriate in a class lawsuit under Section 216(b)”) (court limited class to employees with the same position as plaintiff).


19

daily tasks differ depending on several facts, including the client requirements, driver types, the

route types, and the location out of which the driver is dispatched. Consequently, the Court

would have to individually assess each of Plaintiffs’ work experience with NOW to determine

whether any one of the six factors weighs in favor of or against finding a particular Contractor

was an employee of NOW.

b. The evidence as to each of the relevant factors differs among Contractors

and Plaintiffs in material respects. The individualized nature of Plaintiffs’ claim that they

were NOW’s employees under the FLSA is illustrated by the fact the evidence differs among

Contractors and Plaintiffs in material respects as to each factor.

Factor 1: Nature and Degree of Control

With respect to the first factor, Plaintiffs assert each of the Contractors “share the same

job duties” and “received the same training.” Plaintiffs also claim NOW, through its “corporate

policies,” “dictates the method” in which the drivers serviced the routes they contracted to

perform.

As discussed above, the “duties” of a Contractor vary significantly depending on several

factors, including the type of service the Contractor provided (i.e., routed, route skipper, back-up,

on-demand, exclusive use), the client for whom they provided services (e.g., bank, payroll

company, blood collection centers, Omnicare, exclusive use clients), and the location out of

which they provide services (e.g., Merrillville, Indianapolis). Supra, § II.E. For example,

exclusive use Contractors out of Indianapolis are told by NOW’s clients what they are to do in

any given day. Durbin Aff., ¶ 10.9 Additionally, the duties and circumstances of a Contractor

providing exclusively on-demand services differ significantly from those providing other

9 Therefore, as in Pfaahler, the Court’s inquiry will vary depending on the client for whom each driver works. 2000 WL 198888, at *2.


20

services, yet none of the Plaintiffs performed exclusively on-demand services and some of the

NOW locations, including Merrillville, do not even have Contractors performing exclusively on-

demand work. Id., ¶¶ 8-22; Powell Aff., ¶ 3. Moreover, the Plaintiffs claim unique “duties,”

including that Jillian worked three hours per day at the Merrillville office doing “office work,”

J.S. Dep. at 164-65, that Krystina “trained” Contractors, D.A. Dep. at 107-08, and that Jillian and

Krystina performed personal favors and errands. J.S. Dep. at 70, K.S. Dep. at 32-33. Plaintiffs

also claim that their “duties” changed over time.10 K.S. Dep. at 27, 29-30; J.S. Dep. at 93-94;

M.H. Dep. at 44-45. For example, Krystina claims that she originally was a route skipper

working five to seven hours per day handling only routed work, and then she became a backup

driver who did “anything [NOW] wanted at any time they wanted”. K.S. Dep. at 27-30, 137.

Contrary to Plaintiffs’ claim, the Contractors did not “receive the same extensive

training.” Pls.’ Br. at 8. None of the named Plaintiffs participated in the “four-day training”

Plaintiffs allege NOW requires all of its Contractors to attend. Rather, the alleged “training”

varied among the Plaintiffs. Among the Plaintiffs for example, Krystina alleges she was

“trained” by Jillian and Jeff on a few routes, and by individuals from NOW’s Indianapolis office

on how to use phones and scanners. K.S. Dep. at 150. Adams was trained solely by Krystina,

while Mr. Hoffie only remembers Jillian training him on what routes to drive.11 D.A. Dep. at

107-08; C.H. Dep. at 41. Mrs. Hoffie, on the other hand, alleges she was trained by three

individuals on three different routes, but received no training for the payroll routes because they

were “self-explanatory.” M.H. Dep. at 167-68. Notwithstanding these problems with Plaintiffs’

position, Plaintiffs have failed to present any evidence that uniform “training” documents

10 Material changes during the class period are relevant and preclude a finding of predominance. See Emig v. Am Tobacco Co., 184 F.R.D. 379, 391 (D. Kan. 1998) (denying certification where “various changes in the manufacturing process and design of the product over the relevant time period”). 11 Consistent with Mr. Hoffie’s inability to accurately recall the events surrounding his time at NOW, he also believed Powell trained him on one route, but he is “not positive about that.” C.H. Dep. at 44.


21

common to all Contractors exist, or to show that any such documents would satisfy their burden

of proof. See Edwards v. Publishers Circulation Fulfillment, 268 F.R.D. 181, 185-89 (S.D.N.Y.

2010) (“A reliance even on unambiguous documents arguably would be insufficient to establish

the requisite control in the face of contradictory evidence.”). In fact, information provided to

Contractors regarding client needs varies among the client and the NOW locations. Durbin Aff.,

¶ 23.

Although Plaintiffs claim they were all subject to the same corporate policies, Plaintiffs’

deposition testimony demonstrates they were not all subjected to the same “policies.” For

example, Contractors were not all “required to follow the NOW Ten Commandments” as

Plaintiffs claim. In fact, Krystina saw the 10 Commandments but was not contracted with NOW

when the document was used, K.S. Dep. at 181, Mr. and Mrs. Hoffie do not recall receiving it,

M.H. Dep. at 18-19, C.H. Dep. at 83, Jillian Scott was aware of the content of the 10

Commandments but did not receive the memo, J.S. Dep. at 200, and Adams received the 10

Commandments for the first time around April 29, 2010, almost one year after signing her

contract. D.A. Dep. at 112-13. Additionally, the exhibits relied upon by Plaintiffs do not show

common control as they consist primarily of documents related to Merrillville operations or

Merrillville Contractors and over different time periods.12 See Exs. 3 (same as 18 and 35), 7-9,

12-14, 20-22, 25, 28, 30, 32, 34- 38, 41-42, and 46- 47;13 Powell Aff., ¶ 4. Moreover, Plaintiff

12 The differing time periods covered by the exhibits also support denial of Plaintiffs’ motion. See Brown-Pfifer v. St. Vincent Health, Inc., Cause No. 1:06-cv-0236-SEB-JMS, 2007 WL 2757264, at *7 (S.D. Ind. Sept. 20, 2007) (finding plaintiffs’ claims for failure to receive adequate notice of COBRA benefits were not typical because, over time, St. Vincent used several different procedures and vendors to provide notice of COBRA benefits); see also Randall v. Rolls-Royce Corp., Cause No. 1:06-cv-860-SEB-JMS, 2010 WL 987484, at *7 (S.D. Ind. March 12, 2010), aff’d, -- F.3d ---, 2011 WL 1163882 (7th Cir. March 30, 2011) (noting, in purported equal pay act class action, that the plaintiffs’ reliance on a corporate policy regarding wage increases was undercut by evidence that lower level managers and supervisors arrived at decision differently). 13 Plaintiffs also inappropriately rely on exhibits of website postings. See Pls.’ Br. at 5, 7-9 (citing Exhibits 50-52 and 54). These Exhibits contain inadmissible hearsay to which none of the hearsay exceptions apply. Fed. R. Evid. 802. See U.S. v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000). Moreover, the documents have not been authenticated.


22

Jillian Scott, upon whom Plaintiffs rely as being “aware of Defendant’s consistent policies and

practices,” is not competent or reliable to testify on this issue.14 Jillian could not name all of the

NOW locations. J.S. Dep. at 209-10. She acknowledged that the exhibits in support of

Plaintiffs’ Motion were only provided to the drivers at the Merrillville facility, J.S. Dep. at 227,

and that her claim that “five 12-hour shifts was the standard NOW Courier shift length” was

based on backup drivers in Merrillville. Id. at 209. Additionally, Jillian’s involvement with

other NOW locations has been limited. J.S. Dep. at 119-21, 124. She visited the Indianapolis

location once, she was involved with emails with the Indianapolis office, and had limited

interaction with three branch locations.15 J.S. Dep. at 119-22, 216-17. Moreover, Jillian’s

declaration testimony is inadmissible because it is conclusory, unsubstantiated, and not based on

personal knowledge. See Hamilton v. State Farm Mut. Auto. Ins. Co., No. IP 00-1718-C-T/K,

2002 WL 664020, at *2-*3 (S.D. Ind. March 13, 2002); Pfaahler, 2000 WL 198888, at *2

(“[Plaintiff] must point to something concrete aside from his belief.”).

Finally, given Jillian’s intimate involvement with the Merrillville Contractors while she

was an office employee, she has a conflict of interest with the other Plaintiffs and Contractors

and must therefore be dropped as a named Plaintiff. See Randall v. Rolls Royce, --- F.3d ----, Fed. R. Evid. 901; see Jackson, 208 F.3d at 638. Accordingly, Plaintiffs’ Exhibits 50, 51, 52, and 54 should not be considered by the Court. Additionally, Exhibit 10 is unfamiliar to Powell, and some of the Plaintiffs do not recall ever seeing it. Powell Aff., ¶ 5; C.H. Dep., at 81-82. 14 It is understandable why Plaintiffs have not attempted to rely on any of the other Plaintiffs on this point as they likewise had limited or no connection with NOW outside of the Merrillville location. Krystina did not interact or speak with anyone in any non-Merrillville location except for two drivers and she never discussed the operations of a non-Merrillville office with either of those drivers. K.S. Dep. at 34-36, 44. Other than seeing other drivers at the Oak Forest location wearing uniforms and an ID badge, Adams’ only knowledge about NOW is based on what she experienced in Merrillville. D.A. Dep. at 89-93. Mr. and Mrs. Hoffies’ personal knowledge is limited to the events that took place at the Merrillville location. M.H. Dep. at 158, C.H. Dep. at 24-25. Moreover, anecdotal evidence is insufficient to support a motion for conditional certification. See Barfield v. New York City Health & Hospitals Corp., No. 05-CIV-6319, 2005 WL 3098730, at *1-*2 (S.D.N.Y. Nov. 18, 2005) (denying certification where plaintiff provided “nothing but limited anecdotal hearsay to suggest that there is widespread practice”). 15 Jillian tried to support her competency by claiming she attended weekly conference calls among the branch locations. Upon questioning at her deposition, however, she had to admit she was not a participant in those calls, that her testimony was based on overhearing the calls, and that she was not in the office at times when the calls occurred. J.S. Dep. at 211-13.


23

2011 WL 1163882, at *5 (7th Cir. March 30, 2011) (holding plaintiffs alleging pay

discrimination were inadequate class representatives due to conflict caused by the fact they were

managers of putative class members); J.S. Dep. at 96, 98-105, 118-19, 125, 129-30, 132-35, 137-

138, 143-145, 152-153, 202, 217-18, 227-228, 256 (Jillian involved in all aspects of interaction

with Contractors at Merrillville, including telling contractors at time of contracting they were

independent contractors while believing they were employees); Id. at 185-186 (basis of her

declaration that “I observed couriers being told the terms are non-negotiable” is that she told

them this).

The different Contractor services provided and the needs of NOW’s clients at the various

locations impact the method by which services are performed. Plaintiffs claim that Contractors

must “perform a route in the exact order specified by the company.” Pls’ Br. at 11. Some

Plaintiffs agree with this, others do not. For example, Krystina claims she could never change

the route order, K.S. Dep. at 132-35, and Mr. Hoffie claims he was not supposed to change the

route order, but did on occasion. C.H. Dep. at 41-43. Adams and Mrs. Hoffie testified they

could and did change the order for payroll routes, but not for bank routes. J.S. Dep. at 157, 181-

82, 261; D.A. Dep. at 99-100, 141; M.H. Dep. at 145-46, 179-80. Contractors performing

exclusively on-demand services, which Plaintiffs did not do, can perform deliveries in any order

unless otherwise directed by a client’s delivery needs. Durbin Aff., ¶ 19; Powell Aff., ¶ 3. As

discussed, NOW’s clients determine the pickup and delivery times and windows,16 supra, § II.C,

16 Customer requirements do not constitute “control,” see In re FedEx Ground Package Sys., Inc., Emp’t Practices Litig., --- F. Supp. 2d ----, 2010 WL 5094230, at *28-*29 (N.D. Ind. Dec. 13, 2010) (“[T]he right to control contracted-for results doesn’t indicate employee status.”), and Plaintiffs have produced no evidence that NOW imposed requirements beyond those of its clients or that it did so uniformly. See Wilson-McCray v. Stokes, No. 01-C-1929, 2003 WL 22901569, at*6 (N.D. Ill. Dec. 9, 2003) (defendant “had an interest in making sure that its customers received their goods in a timely manner, and that the fact that it monitored this process to ensure prompt delivery no more creates an agency relationship than does the designation of overnight delivery on a Federal Express package.”); Edwards, 268 F.R.D. at 186.


24

and a Contractor’s flexibility in sequencing the order of stops on a route is often dependent on

the client-required pickup and delivery times and windows. Supra, § II.D; Durbin Aff., ¶¶ 8, 13,

16-17; Wyatt Aff., ¶ 4; Jones Aff., ¶ 3.

Similarly, communication between Contractors and NOW varies based upon the services

being performed, client requirements, and the personnel at the particular NOW location. Durbin

Aff., ¶ 24. Relying on a memo from Powell to “Merrillville Drivers” that provides NOW contact

numbers for “drivers checking in daily for routes,” Plaintiffs make an unsupportable leap to

claim that NOW “requires Drivers to call their branch location to check in on a daily basis.”

Pls.’ Br. at 11 (citing to Ex. 14). Exhibit 14 does not contain any such requirement, it is only

directed to “Merrillville Drivers,” and Plaintiffs have not shown there is any uniform check-in or

communication policy between NOW and its Contractors.

Plaintiffs claim NOW required Contractors to follow step-by-step directions. Their own

testimony refutes this, M.H. Dep. at 146-47; C.H. Dep. at 42-43 (did not always follow

directions), the circumstances vary as to whether any directions are provided, Durbin Aff., ¶ 25,

and there is no NOW corporate policy requiring Contractors to follow any directions provided so

any testimony otherwise would be individual, anecdotal evidence. Id., ¶ 25. Moreover, other

Contractors disagree. Branham Aff., ¶ 7; Lancaster Aff., ¶ 3; Meyerrose Aff., ¶ 4; White Aff., ¶ 2;

Jones Aff., ¶ 3; Hoskinson Aff., ¶ 3; Wyatt Aff., ¶ 4. Plaintiffs claim they have to request “time

off” one week in advance and that approval must be given. Pls.’ Br. at 11. However, other

Contractors and NOW disagree. Durbin Aff., ¶ 26, Branham Aff., ¶ 5; Meyerrose Aff., ¶ 2; White

Aff., ¶ 4; Hoskinson Aff., ¶ 6. Plaintiffs claim Contractors are not permitted to put in a bid to

service a route but, as discussed below, some Contractors are. Plaintiffs claim the contracts are

substantially the same for all Contractors, but Denetria signed a materially different contract than


25

the other Plaintiffs, including different provisions regarding uniforms, non-solicitation, choice of

law (Indiana versus Illinois), delivery schedules and customer requests, Contractor

responsibilities, operational expenses, method of compensation, and many others. Cf. Pls.’ Ex.

15 (Denetria) with Ex. 33 (Krystina). Consequently, even assuming the contracts indicate some

level of control, Plaintiffs’ and the Contractors’ claims will vary depending on the contract they

executed with NOW. Finally, Plaintiffs claim they cannot work with others to provide their

services, yet some Contractors do work together, pass work off to each other, cover each other’s

routes as needed, and discuss route availability. Durbin Aff., ¶ 27; Affidavit of Gary Mack (“G.

Mack Aff.”) (attached hereto as Exhibit Q), ¶ 3.

Simply put, not all Contractors shared the same experience at NOW and, therefore, the

Court must make an individualized inquiry into each Contractor’s working relationship with

NOW before it can make a proper determination under this factor.

Factor 2: Opportunity for profit or loss Plaintiffs claim all of the Contractors “had no opportunity to earn more money by

applying entrepreneurial skills,” could not “select the jobs they were willing to do,” had to “work

exclusively for NOW,” and could not decline a route assignment. As with the evidence

addressing the “control factor” above, evidence relating to these issues differs among the

Plaintiffs and varies among the Contractors.

For example, the opportunities to earn more money vary based on the NOW location

because each location has a different amount of available client business to offer to Contractors

and different types of client work to offer. Durbin Aff., ¶ 28; Branham Aff., ¶ 6. Plaintiffs,

operating out of the Merrillville location, did not have as many opportunities, but they did have

opportunities and they took the opportunities to make more money. K.S. Dep. at 72-73, 77-79,


26

84; J.S. Dep. at 53-55, 73-77, 168, 237; D.A. Dep. at 9-10, 21-23, 25-26, 140; Wyatt Aff., ¶ 3.

Some Contractors selected the work they did, J.S. Dep. at 118-19 (demonstrating Contractors

came to Jillian, when she was an office employee, to express the preference for the type of work

they want to do), and some did not. K.S. Dep. at 82 (“I didn’t get to choose whether I wanted to

do anything” because “[e]verything went through Jeff and his corporate office.”). See also

Branham Aff., ¶ 6; Meyerrose Aff., ¶ 4. In Indianapolis and other locations, work opportunities

are posted and Contractors are able to bid on the work they want. Durbin Aff., ¶ 17; Woods Aff.,

¶ 3. Denetria testified that she had seen driver opportunities posted at the Merrillville location.

D.S. Dep. at 18-20.

Some Plaintiffs testified that they cannot reject work. K.S. Dep. at 126-27; J.S. Dep. at

55-56. However, some Plaintiffs, and other Contractors, say that they can. Branham Aff., ¶ 6;

Lancaster Aff., ¶ 4; Meyerrose Aff., ¶ 4; White Aff., ¶ 1; Woods Aff., ¶ 2; Wyatt Aff., ¶ 5;

Hoskinson Aff., ¶ 5, M.H. Dep. at 155. Although Krystina claims she should not reject a

delivery, Jillian testified she could make herself “unavailable.” See also Branham Aff., ¶ 6;

Lancaster Aff., ¶ 4; Meyerrose Aff., ¶ 4. Plaintiffs testified they were told by Merrillville

personnel they were to work exclusively for NOW, Pls.’ Br. at 7, but Jillian and Mrs. Hoffie both

worked for courier companies during the same time they were under contract with NOW, J.S.

Dep. at 12-13, 15-18, 21-23, 25-27, 41, 175, 178; M.H. Dep. at 37, and other Contractors do not

work exclusively for NOW. Lancaster Aff., ¶ 1 (worked for NOW competitor while contracting

with NOW); Branham Aff.,¶¶ 2-3 (runs landscaping business); Meyerrose Aff., ¶ 2 (runs food

vending business).

Similarly, Adams and Mr. Hoffie made independent decisions to save money on fuel

costs. Mr. Hoffie bought a fuel efficient vehicle, and Adams negotiated with NOW to reduce a


27

payroll route because she was losing money on gas. C.H. Dep. at 62; D.A. Dep. at 30; see also

Lancaster Aff., ¶ 5 (purchased vehicle recently to save money on gas); Wyatt Aff., ¶ 3 (purchased

more gas efficient vehicle recently and negotiated rate increase on route). While Mr. Hoffie does

not recall obtaining extra routes, C.H. Dep. at 46-47, and Mrs. Hoffie did so only occasionally,

M.H. Dep. at 82, Krystina, Jillian, and Adams were all able to obtain routes in addition to their

regular route, for which they were paid an extra amount. K.S. Dep. at 72-73, 77-79, 84; J.S. Dep.

at 53, 55, 74, 76, 168, 237; D.A. Dep. at 9-10, 21-23, 25-26. Some Contractors operate as

business entities,17 Durbin Aff., ¶ 29; Branham Aff., ¶ 3, contrary to Plaintiffs’ stated belief that

there are no such Contractors. Pls.’ Br. at 8. Contractors also operate multiple vehicles, Durbin

Aff., ¶ 30, and they take tax deductions for their business expenses. See Branham Aff., ¶ 3; J.S.

Dep. at 58-59; K.S. Dep. at 195-96; D.A. Dep. at 95-96. Contractors, including Contractors at

Merrillville, have negotiated rates, availability, routes, and compensation. Durbin Aff., ¶ 31;

Powell Aff., ¶ 6; Wyatt Aff., ¶¶ 2-3.

Factor 3: Investment in Equipment

The investment in equipment varied among the Plaintiffs and Contractors. Some

Contractors purchase a specific vehicle for their contract work with NOW, such as a van or box

truck. Durbin Aff., ¶ 32. Another example is that Jillian purchased a van specifically to provide

service for an Omnicare route offered to her by NOW, which van she also then used in providing

delivery services for another courier company. J.S. Dep. at 162. Mrs. Hoffie also covered

Omnicare routes, but did not purchase a van, rather she used her personal vehicle. M.H. Dep. at

8-91; see also Branham Aff., ¶ 4. Some Contractors, and Plaintiffs, use their personal car to

provide services for NOW. Durbin Aff., ¶ 33; K.S. Dep. at 90-91, 160; D.A. Dep. at 84. Some

17 Whether a contractor is operating as a business entity is an important and relevant factor to be considered in determining independent contractor status. See Frankel v. Bally Inc., 987 F.2d 86, 91 (2d Cir. 1993).


28

rent a car from time to time to perform services under the contract. K.S. Dep. at 90-91, 160; J.S.

Dep. at 207-08. As discussed above, some Contractors purchase more fuel efficient cars. Wyatt

Aff., ¶ 3; Lancaster Aff., ¶ 5. Some Contractors invest in additional equipment. For example,

some Contractors purchase dollies, navigation systems, maps, and personal cell phones. Durbin

Aff., ¶ 34.

Factor 4: Special Skill

The evidence among the Contractors, including Plaintiffs, differs with respect to the need

for special skill to accomplish the tasks they contractually agreed to perform. For example, some

of the Plaintiffs had to receive STA Certification to make airport deliveries, J.S. Dep. at 169;

K.S. Dep. at 164, while others obtained a bloodborne pathogen certification. M.H. Dep. at 32-33.

Adams’ blood sample deliveries did not require Adams to have such a certification. D.A. Dep. at

84-85. Some clients require that Contractors be familiar with HIPPA, OSHA, and TSA

requirements and regulations. Durbin Aff., ¶ 35.

Factor 5: Permanency and Duration of Relationship

The permanency and duration of the relationship between a Contractor and NOW varies.

For example, Jillian was a Contractor for approximately eight months then became an office

employee for sixteen months until October 28, 2008, and then became a Contractor again and

remains so to this day. J.S. Dep. at 49-50. Contractors have been under contract with NOW for

as little as less than one week to as long as more than twenty years. Durbin Aff., ¶ 36. Some

Contractors work for part of the year, some work only specific days or portions of days, and

some work on an irregular basis. Id., ¶ 36; Meyerrose Aff., ¶ 2; Branham Aff., ¶ 2. For example,

some Contractors go to Florida during the winter or do seasonal work, and then contact NOW

about obtaining work. Durbin Aff., ¶ 36.


29

Factor 6: Integral Part of Business

Finally, the Plaintiffs’ evidence differs with respect to whether the services each Plaintiff

rendered was an integral part of NOW’s business. Unlike the other named Plaintiffs, Krystina

and Jillian assert they were required to handle personal errands for NOW employees, and Jillian

worked three hours per day as an independent contractor at the Merrillville location doing office

work. J.S. Dep. at 70, 164-65; K.S. Dep. at 32-33.

Ultimately, Plaintiffs’ Motion for Collective Action should be denied for the same three

reasons the court denied a motion for collective action under § 216(b) in Aquilino v. Home

Depot, U.S.A., Inc., Cause No. 04-04100, 2011 WL 564039, at *7-*10 (D. N.J. Feb. 15, 2011).

First, as demonstrated above, the resolution of Plaintiffs’ claims requires an individualized

assessment of each Plaintiffs’ and Contractors’ daily activities. Id. at *7-*8. Second, NOW has

(1) highlighted the contradictions between individual Plaintiffs’ declarations, interrogatory

answers, and deposition testimony, and (2) asserted affirmative defenses, including laches,

waiver, and/or estoppel, that require individualized attention.18 Id. at *9. Finally, given the

individualized nature of Plaintiffs’ claims, the Court should deny Plaintiffs’ Motion due to “the

potential unfairness and procedural difficulties that may arise in allowing this case to proceed as

a collective action.” Id. at *10.

3. Plaintiffs Are Not Similarly Situated Because Their Substantive Claims for Overtime and Minimum Wage Require An Individualized Analysis

Apart from Plaintiffs’ claim that NOW misclassified them as independent contractors,

Plaintiffs must also show they are similarly situated to the putative class members with respect to

the substantive claims for relief for overtime and minimum wage under 29 U.S.C. §§ 206 and

18 Specifically, NOW asserts Plaintiffs’ failure to timely contest their classification as an independent contractor has harmed NOW and that, therefore, their claims should be barred. See ECF No. 30, Affirmative Def. No. 4. Because the evidence of when a particular Contractor believed he or she had been misclassified will vary from Contractor to Contractor, Plaintiffs’ Motion should be denied. Aquilino, 2011 WL 564039, at *9.


30

207. Plaintiffs failed to demonstrate they are similarly situated to the putative class members as

to these claims.

On the overtime issue, Plaintiffs’ evidence consists of their allegation that NOW

“typically assigned drivers to work five 12-hour shifts per week” and that “the standard shift was

60 hours per week.” Pls.’ Br. at 8. Jillian admits this assertion is based on backup drivers at

Merrillville. J.S. Dep. at 209. Plaintiffs’ experiences as route skippers/backup drivers are not

common to other contractors as fewer than 10% of NOW’s Contractors are route

skippers/backup drivers, Durbin Aff., ¶ 15, and the Plaintiffs were unique in that they were paid

to be available. Durbin Aff., ¶ 21. Plaintiffs’ evidence also does not, and their evidence cannot,

establish that Plaintiffs’ 12-hour availability experience as route skippers or backup drivers in

Merrillville is similar to the hours worked by route skipper/backup drivers at other NOW

locations who did not have to be available for 12 hours,19 Id., ¶ 37; Powell Aff., ¶ 8, or to the

hours worked by Contractors who operated exclusively as on-demand Contractors, Durbin Aff., ¶

19, or to the hours worked by Contractors who handle routed work at the various locations, Id.,

¶¶ 8, 16-18, or to the hours worked by Contractors who provide a combination of services. Id., ¶

8-22.

Moreover, even for those Contractors who did work as route skippers/backup drivers

subject to a 12-hour availability requirement, their circumstances are different and must be

inquired into individually. To determine whether an employee has incurred “overtime” within

the meaning of the FLSA, the employee must provide the actual number of hours the employee

worked in a specific workweek. See 29 C.F.R. § 778.112 (“If the employee is paid a flat sum . . .

for doing a particular job, without regard to the number of hours worked in the day or at the job, .

19 There re no NOW locations that currently have route skippers/backup drivers who are required to be available for 12 hours. Durbin Aff., ¶ 37.


31

. . his regular rate is determined by totaling all the sums received at such day rates or job rates in

the workweek and dividing by the total hours actually worked.”) (emphasis added). That is, the

number of hours that constitute compensable time under the FLSA must be added together to see

if they exceed 40 hours actually worked in a week. Similarly, to succeed on their minimum

wage claim under the FLSA, Plaintiffs must prove that, during a particular workweek, the

compensation they received is less than the federal minimum wage for the number of hours they

actually worked. Therefore, to establish liability -- this is not a damages question -- for a

Contractor’s overtime and minimum wage claims, the Court must determine the number of hours

each Contractor actually worked during a particular workweek. This determination, however,

involves an analysis of the particular facts and circumstances unique to each Contractor.

Contractors will have varying experiences and admissions under cross examination at

trial regarding how much time they actually worked. For example, Krystina freely admits that

while she was a route skipper, she only worked 5 to 7 hours per day while being paid $600 per

week. K.S. Dep. at 137. Jillian admits that route skippers/backup drivers are allowed to inform

NOW that they are not available during this time period but if they so notify NOW, then there is

a resulting pro-rata reduction in their compensation, which Jillian acknowledged was “fair.” J.S.

Dep. at 66-67.

Furthermore, several of the Plaintiffs and Contractors experience gap time at various

points in the day during which NOW may call on them to handle a delivery. Determining

whether this time is compensable under the FLSA will require the trier of fact to assess whether

the particular individual was “‘engaged to wait,’ which is compensable, or . . . ‘wait[ing] to be

engaged,’ which is not compensable.” Thomas v. The Connor Group, Cause No. 1:06-cv-830-

SEB-JMS, 2008 WL 1914181, at *3 (S.D. Ind. April 28, 2008) (citations omitted); see also


32

Jonites v. Exelon Corp., 522 F.3d 721, 723-24 (7th Cir. 2008). Several Plaintiffs admit they were

free to do whatever they wanted when they were not asked to perform a pickup or delivery and

during gap times between deliveries. K.S. Dep. at 89-90, 149; J.S. Dep. at 55, 62-64; M.H. Dep.

at 49. Determining whether and to what extent a Contractor was performing compensable work

or not will require examining each Contractor’s particular circumstances, and no one Plaintiff’s

circumstances are the same as another’s. This determination can only be made on an individual

basis. Jonites, 522 F.3d at 725-26 (concluding plaintiffs’ claim for unpaid wages during on-call

lunch period not appropriate for collective action); see also id. at 723 (“The determination would

have to be made on a case-by-case basis since the call-out experience varies so among the

workers.”)

Moreover, several of the Contractors assert that the manifests do not account for all the

work they performed. Jillian asserts the manifests do not record all the work she completed,

such as loading her car and stopping to reroute. J.S. Dep. at 60. Similarly, Krystina testified she

does not know if her manifests accurately reflect the work that she completed on a particular day

because she did not write down everything she did, including waiting time and training time, and

thinks she should be paid for this time. K.S. Dep. at 93-94, 154, 203-04, 208. Therefore, in

order for the Plaintiffs to establish liability, the Court would have to hear testimony from each

individual Contractor to determine the number of hours each Contractor worked, and NOW is

entitled to its cross examination rights. In addition, at least some of the Plaintiffs claim they

were forced to pay certain expenses that did not appear on their settlement sheets, and that these

expenses, when deducted from their overall compensation, reduced their hourly rate below the

minimum wage. J.S. Dep. at 242-43; K.S. Dep. at 157; D.A. Dep. at 127; C.H. Dep. at 133-34.

This analysis will necessarily require the Court to analyze (and allow NOW to cross-exam


33

Contractors on) the evidence each Contractor has regarding the existence, reasonableness, and

amount of these expenses, and whether the expenses reduced the Contractor’s compensation

below the minimum wage.

4. Plaintiffs’ Motion for Collective Action Fails Because Their Evidence Is Limited To the NOW Merrillville Location

As shown above, Plaintiffs’ motion for a collective action fails because Plaintiffs are not

similarly situated to the other Contractors either on the employee reclassification issue or on their

substantive FLSA overtime and minimum wage claims. Plaintiffs’ motion also fails because, as

discussed above, their evidence is limited to the NOW Merrillville location. Supra, n.14; K.S.

Dep. at 34-35; J.S. Dep. at 119, 124; D.A. Dep. at 15; M.H. Dep. at 158; C.H. Dep. at 24-25; B.S.

Dep. at 54-55. Multiple courts have rejected similar attempts of plaintiffs seeking to represent a

class of individuals at different locations where their evidence is limited to one location. See

Lallathin, 2010 WL 2640271, at *1-*2 (denying motion for collective action where plaintiff’s

only evidence of “factual nexus” connecting her to purported similarly situated individuals at

other locations was that she had spoken to them and they said their job requirements were the

same as hers).20

As in each of these cases, Plaintiffs’ speculation about the working relationship between

NOW and Contractors at non-Merrillville locations should be rejected. Neither should the Court

certify this case as a collective action limited to the Contractors at the Merrillville location.

20 See also Sheffield v. Orius Corp., 211 F.R.D. 411, 413 (D. Or. 2002) (finding employees at nine-different locations were not similarly situated); Botello v. COI Telecom, LLC, Cause No. SA-10-cv-305-XR, 2010 WL 5464824, *6-*7 (W.D. Tex. Dec. 30, 2010) (denying motion to certify collective action in misclassification case where drivers were treated differently at different locations); Gonzales v. Hair Club for Men, Ltd., Inc., Cause No. 6:06-cv-1762-ORL-28JGG, 2007 WL 1079291, at *3-*4 (M.D. Fla. April 9, 2007) (denying condition certification where plaintiffs’ motion fell “far short” of showing that all employees company-wide were similarly situated to those employees working in one geographic location); Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 948-49 (M.D. Fla. 1994) (same).


34

Cases in this District limiting collective actions are distinguishable from this case,21 and NOW

has shown that not only are there significant differences among the Plaintiffs on the

reclassification factors and the elements required to be proven on the overtime and minimum

wage substantive claims, supra, §§ III.A.2-III.A.3, but also that there are differences among the

Plaintiffs and other Contractors at the Merrillville location. See generally, Wyatt Aff., ¶¶ 2-6;

Powell Aff., ¶¶ 3-10. For example, Contractors at Merrillville have negotiated rates, availability,

routes, and compensation. Powell Aff., ¶ 6; Wyatt Aff., ¶¶ 2, 4-5. Many Contractors at

Merrillville, including opt-in plaintiffs Bonnie Scott, Darrell Young, Steve Young, and Doug

Black, have never been route skippers or backup drivers, and they did not make themselves

available for set periods of time like route skippers/backup drivers do in Merrillville. Powell

Aff., ¶ 7. There were route skippers/backup drivers at Merrillville who made themselves

available for varying periods of time shorter than a 12-hour block of time. Powell Aff., ¶ 8.

Additionally, a large number of Contractors operating out of the Merrillville location go directly

to the client location when they work and have no need to come to the Merrillville office.

Powell Aff., ¶ 9. Finally, other Contractors at Merrillville turn down work without repercussion,

take off work when they need to and at their choice, drive whatever directions they want, and

21 In Veerkamp v. U.S. Security Associates, Inc., Cause No. 1:04-CV-0049-DFH-TAB, 2005 WL 775931, at *2 (S.D. Ind. March 15, 2005), the court limited an Indiana plaintiff’s collective action class to Indiana because the plaintiffs lacked sufficient evidence of similarity to putative class members outside of Indiana. There, the plaintiffs had affidavits from employees of several of the locations in Indiana; here, Plaintiffs have only submitted evidence and declarations from Merrillville. Id. at *2-*3. In Mares v. Caesars Entertainment, Inc., Cause No. 4:06-cv-0060-JDT-WGH, 2007 WL 118877, at *1-*3 (S.D. Ind. June 10, 2007), evidence of “alleged conversations with unidentified persons,” was “insufficient to establish personal knowledge as to the policies and practices in effect at Caesars-owned facilities other than the one at which [the plaintiff] worked.” The Court granted certification for Elizabeth location guards because plaintiff had first hand knowledge of that location but the court distinguished other cases where, like here, (1) the court was required to make factual inquiries regarding the specific job duties of the potential plaintiffs and (2) the parties had performed some discovery. In Moss v. Putnam County Hosp., Cause No. 2:10-cv-00028-JMS-WGH, 2010 WL 2985301, at *2-*3 (S.D. Ind. July 21, 2010), the court limited the certified collective action class to people covered by similar wage scheme but did so because the plaintiffs submitted evidence of a systematic company policy as well as systematic use of company memoranda, unlike here, where plaintiffs have failed to demonstrate a systematic company policy or systematic use of company memoranda.


35

purchase vehicles specifically for NOW work and not for personal use. Wyatt Aff., ¶¶ 3-5;

Powell Aff., ¶ 10.

B. Plaintiffs Do Not Satisfy Rule 23’s Commonality, Typicality and Predominance Requirements

For their state law claims, Plaintiffs move the Court to certify a class under Rule 23. In

order to succeed on their Motion, Plaintiffs must first establish each of the four prerequisites set

forth in Rule 23(a): numerosity, commonality, typicality, and adequacy of the class

representative. See Seigel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010); Lady Di's, Inc. v.

Enhanced Servs. Billing, Inc., Cause No. 1:09-CV-340-SEB-DML, 2010 WL 4751659, at *3

(S.D. Ind. Nov. 16, 2010). Plaintiffs must also demonstrate that certification is appropriate under

one of the three alternative approaches set forth in Rule 23(b). See Seigel, 612 F.3d at 935; Lady

Di’s, 2010 WL 4751659, at *3. Plaintiffs assert certification is appropriate under Rule 23(b)(3),

which requires Plaintiffs to demonstrate that “questions of law or fact common to class members

predominate over any questions affecting only individual members.” See Seigel, 612 F.3d at

935-36 (affirming district judge’s denial of plaintiff’s motion to certify a class where nature of

claim required individualized inquiry).

This Court must conduct a rigorous analysis into whether the prerequisites of Rule 23 are

met before certifying a class, and the Court is not obligated to presume the truth of any of

Plaintiffs’ factual assertions. Randall, 2010 WL 987484, at *7. Plaintiffs have failed to meet

their burden of demonstrating certification is appropriate.

1. Plaintiffs’ Claims Are Not Typical Because They Provide No Evidence Of Non-Merrillville Locations

As stated above, Plaintiffs all worked out of NOW’s Merrillville location and they have

no personal knowledge or evidence about the working relationship between NOW and its


36

Contractors at the other locations. Plaintiffs’ unsupported allegations that the non-Merrillville

Contractors’ claims are typical of their own should be rejected. In Payton v. County of Carroll,

473 F.3d 845, 853-54 (7th Cir. 2007), the Seventh Circuit affirmed the district judge’s denial of

class certification. Specifically, the court concluded the plaintiffs failed to demonstrate their

claims were typical of the class because: (1) the plaintiffs only presented evidence from DuPage

and Kane counties and (2) to determine liability, “a court would have to examine whether the

individual county acted arbitrarily and capriciously in setting its bond fee.” Id. Similarly, here

the Court will have to examine each particular Contractor’s experiences at each location,

particularly given each location operates differently depending on its specific client base. Thus,

as in Payton, the Plaintiffs’ claims are not typical of the class because their evidence is limited to

the Merrillville location.22

2. Plaintiffs Cannot Satisfy Rule 23(b)(3) On Reclassification Issue

Plaintiffs claim NOW misclassified them as independent contractors when they were, in

fact, employees. Similar to their FLSA claims, Plaintiffs’ misclassification argument is a

threshold prerequisite to liability on their state law claims. Unlike the FLSA, Indiana utilizes a

10-factor test to resolve employment status questions, although several of these factors mirror the

FLSA factors. Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind. 1995).23

“Under this test, all factors must be assessed and no factor is dispositive.” Id. Thus, in order to

22 Courts have also concluded that Rule 23(a)’s commonality prong is not satisfied where the court would be required to make several individualized inquiries due to the differing experiences among the plaintiffs and putative class members. See McReynolds v. Lynch, Cause No. 05 C 6583, 2010 WL 3184179, at *3-*5 (N.D. Ill. Aug. 9, 2010). 23 Those factors are: (1) the extent of control over details of work; (2) whether the individual is engaged in a distinct occupation or business; (3) the kind of occupation; (4) the skill required; (5) the supplier of equipment, tools, and work location; (6) the length of employment; (7) the method of payment; (8) whether the work is a part of the regular business of employer; (9) the belief of the parties; (10) whether the principal is in business. Mahaney, 655 N.E.2d at 495-96.


37

satisfy Rule 23(b)(3), Plaintiffs must demonstrate they can establish each of these elements with

evidence that is common to the entire class.

As multiple courts have held, the individualized nature of the inquiry into an individual’s

employment status is not suited for resolution on a class wide basis under Rule 23(b)(3). See

Oplchenski v. Parfums Givenchy, Inc., 254 F.R.D. 489, 500-01 (N.D. Ill. 2008) (predominance

prong not satisfied where class members’ eligibility for employee benefit plan required

individualized inquiry into class member’s employment status); Walker v. Bankers Life &

Casualty Co., No. 06 C 6906, 2008 WL 2883614, at *11 (N.D. Ill. July 28, 2008) (determining

whether the employer controlled each agent’s work, as required to establish an employer-

employee relationship, depended on an individualized inquiry). See also Edwards, 268 F.R.D. at

185-89 (denying motion to certify a class of newspaper delivery drivers who claim they were

misclassified as independent contractors instead of employees).

NOW has shown that individual issues predominate over common ones on the FLSA

factors that mirror the reclassification factors under Indiana law. Supra, § III.A.2.b.

Furthermore, with respect to the Indiana factors that were not addressed above, the evidence at

issue in Plaintiffs’ claims differs among the Contractors, necessitating an individualized inquiry.

For example, the evidence will vary regarding the intent of the drivers when they entered into

their respective contracts. Krystina, Jillian, and Mrs. Hoffie initially believed they would be

independent contractors. K.S. Dep. at 46-47, 54-55; J.S. Dep. at 79-82; M.H. Dep. at 95-96. Mr.

Hoffie testified he never considered himself an independent contractor. C.H. Dep. at 155.

Denetria testified she thought she would be an independent contractor when she applied but

changed her mind after she had to take an exam during the contracting process. D.A. Dep. at 69-

70.


38

Likewise, the method of payment varied among the Plaintiffs and Contractors. Durbin

Aff., ¶¶ 18-19, 21. Among the Plaintiffs for example, Krystina and Jillian were paid a flat fee for

providing route skipper/backup driver services, K.S. Dep. at 76-77; J.S. Dep. at 54, but Denetria

was paid on a commission basis. D.A. Dep. at 44. Route skipper/backup drivers are typically

not paid to be available. Durbin Aff., ¶21. Jillian and Krystina were paid a flat fee for each

additional route they handled, J.S. Dep. at 55; K.S. Dep. at 83-84, while Denetria was paid on a

per stop basis. D.A. Dep. at 51-52. The work locations for Contractors also vary. For example,

some Contractors rarely if ever come to a NOW location, Durbin Aff., ¶ 38, some Plaintiffs claim

they were required to come to the Merrillville location every day, K.S. Dep. at 118; J.S. Dep. at

54, some Contractors operate out of a client’s location, Durbin Aff., ¶ 39, and some Contractors

go daily to different locations, whether to a NOW location, a client location, or another pickup or

delivery location. Id., ¶ 39.

Because the Court will be forced to make an individualized assessment of each of the

Contractors’ claims, Plaintiffs’ Motion under Rule 23 should be denied. Lady Di’s, 2010 WL

4751659, at *5-*6 (denying motion to certify a class because the court would be required to

make individual determinations with respect to each class member). Hurd v. Monsanto Co., 164

F.R.D. 234, 239-40 (S.D. Ind. 1995) (Barker, J.) (denying motion for class certification because,

among other reasons, causation element in toxic torts case required individualized analysis).24

3. Plaintiffs Cannot Satisfy Rule 23(b)(3) On Their Substantive Claims

24 For the same reasons, Plaintiffs fail to satisfy the superiority prong of Rule 23(b)(3). “Superiority is established when a class action would achieve the ‘economies of time, effort, and expense,’ and promote uniformity of decisions without sacrificing procedural fairness.” Walker, 2008 WL 2883614, at *12 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997)). As the Walker court concluded, “resolving the core issue of whether [the defendant] misclassifies its agents would result in mini-trials that would inhibit efficient resolution of this dispute.” Id.


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Common issues will not predominate with respect to Plaintiffs’ rescission claim.

Rescission of a contract requires affirmative action immediately upon discovery of the grounds

that support the party’s right to rescission of the contract. See INB Nat’l Bank v. Moran Elec.

Services, Inc., 608 N.E.2d 702, 708 n.3 (Ind. Ct. App. 1993) (finding plaintiffs’ waived their

right to rescission of a contract due to a ten-year delay in bringing action after discovery of

fraud). Delay in bringing rescission can lead to waiver of the right to bring the claim if the delay

was long enough to create prejudice, as the party must show reasonable diligence in ascertaining

acts and promptness in seeking the remedy. Id.

Here, the evidence varies among Plaintiffs, and will vary among the putative class

members, with respect to whether they acted immediately upon their alleged discovery that they

were being treated as employees. For example, Jillian claims she felt as though she was treated

as an employee before she became a manager, but nevertheless signed another independent

contractor agreement. J.S. Dep. at 79-82. To the contrary, Mr. Hoffie performed services under

the contract he signed even though he never considered himself to be an independent contractor.

C.H. Dep. at 155. Conversely, Krystina testified that she started to believe she was an employee

when she got busy and she approached NOW’s Merrillville management about the issue. K.S.

Dep. at 56-58. Bonnie Scott, and opt-in declarants, conducted research and determined

“something wasn’t quite right here.” B.S. Dep. at 9-13. As this testimony indicates, there will be

issues of fact with respect to each Contractor whether he or she acted immediately upon the

discovery that NOW improperly treated the Contractor as an independent contractor instead of

an employee.

Similarly, Plaintiffs’ claim that NOW has been unjustly enriched requires an

individualized analysis of each plaintiffs’ circumstances, making class certification


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inappropriate. Lady Di’s, 2010 WL 4751659, at *3 (“[C]laims of unjust enrichment . . . do not

typically lend themselves to a showing that common questions of law or fact predominate over

the individual issues.”); see Hegel v. Brunswick Corp., Cause No. 09-C-882, 2010 WL 2900379,

at *5 (E.D. Wis. July 20, 2010) (quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th

Cir. 2009) (“In short, common questions will rarely, if ever, predominate an unjust enrichment

claim, the resolution of which turns on individualized facts.”). Specifically, the trier of fact will

have to consider (1) the work performed by the Contractor; (2) whether that worked conveyed a

measurable benefit to NOW;25 (3) whether NOW knowingly received the benefit; and (4)

whether NOW’s receipt of that benefit was “unjust” under the circumstances. The individualized

nature of the trier of fact’s inquiry renders class certification inappropriate. Id.

IV. CONCLUSION

For the reasons stated above, Defendant, NOW Courier, Inc. d/b/a NOW Courier &

Messenger, Inc., respectfully requests that this Court deny Plaintiffs’ Motion for Conditional

Certification of FLSA Class, Certification of Indiana Class under Fed. R. Civ. P. 23,

Appointment of Class Counsel and Judicial Notice (ECF No. 43).

Respectfully submitted,

/s/ Robert L. Browning Robert L. Browning Attorney No.: 15128-49

Attorney for Defendant, NOW Courier, Inc.

25 For example, several Contractors testified they ran personal errands during the day. J.S. Dep. at 55, 62-64; M.H. Dep. at 49. Consequently, even if a particular driver made themselves “available” from 7 a.m. to 7 p.m., the individual did not necessarily convey a “measurable benefit” to NOW the entire time they were available. Similarly to the minimum wage and overtime claims, each Contractors’ claim for unjust enrichment requires an individualized assessment of the circumstances.


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CERTIFICATE OF SERVICE

I hereby certify that on May 16, 2011, copy of the foregoing was filed electronically.

Notice of this filing will be sent to Adedoyin Gomih at [email protected], Trent

A. McCain at [email protected], and Shawn Wanta at [email protected] by

operation of the Court’s electronic filing system. Parties may access this filing through the

Court’s system. /s/ Robert L. Browning Robert L. Browning James H. Hanson [email protected] Robert L. Browning [email protected] Andrew J. Butcher [email protected] Christopher J. Eckhart [email protected] SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C. 10 West Market Street, Suite 1500 Indianapolis, Indiana 46204 (317) 637-1777


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