United States District Court, E.D. Tennessee, Knoxville
THEODUS DAVIS, on behalf of himself and those similarly situated, Plaintiffs,
COLONIAL FREIGHT SYSTEMS, INC., et al., Defendants.
MEMORANDUM AND ORDER
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
before the Court is Plaintiffs' Motion to Approve Notice
and Opt-in Procedures [Doc. 93]. The parties appeared
telephonically before the Court on April 11, 2018, for a
motion hearing. Attorneys Justin Swidler and Travis
Martinndale-Jarvis appeared on behalf of Plaintiffs.
Attorneys E. Ashley Paynter, Christopher Eckhart, and Richard
Hollow appeared on behalf of Defendants. Accordingly, for the
reasons set forth below, the Court GRANTS IN PART AND
DENIES IN PART Plaintiffs' Motion [Doc.
93]. The Court further ORDERS the
parties to meet and confer with respect to the remaining
disputes as discussed below.
filed a Complaint [Doc. 1] on September 20, 2016, and later
filed an Amended Complaint [Doc. 61] on November 29, 2017.
The Amended Complaint was filed against Defendants Colonial
Freight Systems, Inc. (“Colonial”), Phoenix
Leasing of Tennessee (“Phoenix”), and Ruby
McBride. Plaintiffs allege that Defendants erroneously
classified him and those similarly situated as independent
contractors and unlawfully deducted and withheld their wages
in violation of the Fair Labor Standards Act
(“FLSA”). [Doc. 61 at ¶ 1]. Plaintiffs
allege that Defendants required him and those who are
similarly situated to attend Defendants' driver-trainee
program without providing wages that were free and clear and
further required them to cover the costs of Defendants'
businesses, intentionally reducing their wages below the
minimum wage. [Id.]. Plaintiffs also allege
violations of the Truth in Leasing Act, 49 U.S.C. §
14704, against Defendants Colonial and Phoenix. [Id.
at ¶ 2]. Specifically, Plaintiffs state that Defendant
Colonial failed to pay the rates proscribed in the
Independent Contractor Operating Agreements and that
Defendant Phoenix breached its contractual obligations by
failing to abide by the lease-purchase terms of the Lease
Agreements. [Id. at ¶¶ 3-4].
March 2, 2018, the District Judge conditionally certified as
a collective action two separate groups under the FLSA: the
Driver-Trainee Class and the Phoenix-Lease Driver Class.
[Doc. 85 at 8-14]. In addition, the District Judge certified
the Phoenix-Lease Drivers as a class action pursuant to
Federal Rule of Civil Procedure 23(b)(3) with respect to the
alleged violations of the Truth in Leasing Act. [Id.
POSITIONS OF THE PARTIES
parties have submitted competing notice forms with respect to
the FLSA collective action and the Rule 23 class action.
Because the parties indicated at the hearing that they could
resolve several disputes that were presented in their
filings, the Court will only summarize the primary
contentions between the parties: (1) methods of notice, (2)
duration of opt-in period, and (3) the applicable class and
collective action definitions.
respect to the methods of notifying individuals, Plaintiffs
propose that they send two notices at different times: one
notice for the collective action and one for the class
action. Plaintiffs reason that the claims certified under
Rule 23 are distinct from the collective action claims
pursued under the FLSA. Plaintiffs insist that a hybrid
notice will not benefit the class and that it will cause
confusion. Plaintiffs state that many courts authorize notice
to a putative FLSA collective action in advance of a decision
to certify a Rule 23 class action consisting of the same
individuals. In addition, Plaintiffs state that the
procedures for joining and excluding members are different
and contradictory. Plaintiffs explain that a hybrid notice
will likely cause confusion to class members because the
drivers are presumably unaware of the nuances of class and
Plaintiffs request that the FLSA collective action and the
Rule 23 notices be sent via first-class mail, email, and
through Defendant Colonial's Qualcomm system. Plaintiffs
state that the messages sent via Defendant Colonial's
Qualcomm system should be sent on the day of the mailing, ten
days after mailing, and fifteen days after mailing the
notices at 12:00 p.m., CST. In addition, with respect to the
FLSA collective action, Plaintiffs request leave to send
reminder notices by mail and email halfway through the notice
respect to the FLSA collective action, Plaintiffs propose an
opt-in period of 120 days due to the difficulties in
contacting truck drivers. Plaintiffs explain that truck
drivers often spend several consecutive weeks or months on
the road away from their home.
Plaintiffs argue that the class and collective actions'
definitions are not overbroad as suggested by Defendants.
Plaintiffs continue that the definitions substantially mirror
the language originally used in seeking certification and by
the Court in granting certification. Plaintiffs have attached
to the Motion their proposed FLSA notice form [Doc. 94-1],
the consent to join form [Doc. 94-2], and the Rule 23 class
action notice form [Doc. 94-4].
have filed a number of objections to Plaintiffs' proposed
notices. First, Defendants argue that a hybrid notice should
be sent to individuals who are members of both the FLSA
collective action and the Rule 23 class action and that a
separate notice should be sent to individuals who are only
members of the Rule 23 class action. In addition, Defendants
argue that the notices should only be sent by first-class
mail and that other methods, including emails, messages over
the Qualcomm system, and reminders are duplicative and
Defendants argue that with respect to the FLSA collective
action, the opt-in period should be sixty (60) days.
Defendants emphasize that courts within the Sixth Circuit
have repeatedly held that sixty (60) days is sufficient time
to opt-in a lawsuit. Finally, Defendants argue that the
notices do not properly reflect the collective and class
definitions or the time periods that were certified by the
Court. Defendants have attached their own notices [Docs. 98-1
and 98-2] and consent to join form [Doc. 98-3].
mentioned above, the Court held a hearing on April 11, 2018.
During the hearing, the parties agreed that there were
fundamental issues that prevented them from resolving the
remaining disputes. It appears to the Court that a ruling is
necessary with respect to the methods of notice, the duration
of the opt-in period, and the proper definitions of the class
and collective actions.
Court will address these issues separately.