IN RE FedEX GROUND PACKAGE SYSTEM, INC., EMPLOYMENT PRACTICES LITIGATION
United States District Court, N.D. Indiana, South Bend Division.
March 25, 2008.
Second, in case after case in which these rulings are made, the court has marveled at the elasticity of the holdings in the cases FedEx Ground cited for various propositions. Today's opinion sets forth several of the most remarkable examples. Based on this experience of reviewing 40 pages of FedEx Ground briefs in each of 29 cases, the court urges whatever counsel signs future FedEx Ground briefs to carefully read both the authorities cited in those briefs and Rule 11 of the Federal Rules of Civil Procedure.
E.For the foregoing reasons, the court ORDERS as follows:
1. In Cause No. 3:05-CV-600 [Tennessee], the court GRANTS IN PART the plaintiffs' motion for class certification [doc. # 599] and certifies the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of the plaintiffs' claims for violations of Tennessee's Consumer Protection Act of 1977 and seek an accounting, rescission, and declaratory and injunctive relief:
All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and form OP-149 RES); 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since June 22, 1999, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Tennessee.
2. In Cause No. 3:06-CV-393 [Montana], the court DENIES the plaintiffs' motion for class certification [doc. # 600].
3. In Cause No. 3:05-CV-593 [Mississippi], the court DENIES the plaintiffs' motion for class certification [doc. # 598].
1. Mississippi courts apply the following tests: "Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees." Richardson v. APAC-Mississippi, 631 So. 2d at 148-149.
2. FedEx Ground begins its fourth objection by stating that Arkansas courts look to control based on the "agreement of the parties." FedEx Ground then states that since the plaintiff's theory of the case is that he signed a contract of adhesion, Mr. Harris is challenging that he and FedEx Ground, in fact, agreed to the terms in the Operating Agreement. FedEx Ground provides no legal support for this contention and doesn't elaborate further. Since the court's research has disclosed no basis for this objection, the court will not address it further.
3. Even with respect to this case, FedEx Ground's citation is disappointing. In arguing that Michigan courts look to actuality rather than contractual right to control, FedEx Ground quotes the Kidder court as saying, "[j]ust as we have held that control is but one factor to consider under the economic-reality test, so is the contract but one factor" (emphasis provided by FedEx Ground). The quote is accurate, but the Kidder court was discussing the portion of the contract that disavowed any employer-employee relationship, not the contract's impact on the control analysis. See Kidder, 564 N.W.2d at 881.
On a similar note, FedEx Ground accurately quotes Roostertail, Inc. v. Patti Page, Pattack, Inc., 188 N.W.2d 224, 228 (Mich. Ct. App. 1971), as saying, "[t]he actual relationship of the parties, not merely their characterization of that relationship, is relevant" (emphasis provided by FedEx Ground), but the Roostertail court was discussing federal labor law, not Michigan law.
4. The plaintiffs asserted a fraud claim on behalf of the class in their amended complaint, but didn't include that claim in their motion for class certification or address it in their supporting and supplemental memoranda.
5. The Iowa plaintiffs assert a claim of fraud on behalf of the class as their Second Cause of Action, but didn't include that claim in the motion for class certification.
6. The plaintiffs propose a class period that begins four years prior to the commencement of this lawsuit based on the statute of limitations applicable to their claims under the FDUTPA.