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Delbert Sturm, An Individual, Richard D. Ferguson, An v. Cb Transport

May 2, 2013




Plaintiffs are the former and current employees of Defendant CB Transport, Inc., a trucking company that hauls raw milk from Idaho and Oregon dairy farms to Darigold processing plants, and then takes the finished product to Darigold customers. Plaintiffs claim that under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., they are entitled to back pay for time worked over 40 hours per week. CB moved for summary judgment, arguing Plaintiffs are not entitled to overtime pay because the entire pool of milk tanker drivers falls under the Motor Carrier Act exemption to the FLSA. CB argues also that Plaintiffs' state law claims are either preempted by the FLSA, barred by the state law statute of limitations, or fail as a matter of law. Finally, CB argues that summary judgment must be granted as to the claims made by Plaintiffs who did not respond to the motion for summary judgment, because Plaintiffs are not a certified class.

Additionally, Plaintiffs filed a motion to amend their complaint to add named plaintiffs in place of the John Does, and to add a claim of willful violation under the FLSA. CB does not contest the addition of the claim for willful violation of the FLSA. But, CB opposes the addition of new plaintiffs, arguing the delay and prejudice is sufficient to warrant denial of the motion. If the motion to amend is granted, CB contends that the newly named Plaintiffs should not be permitted to avail themselves of the relation back doctrine for statute of limitations purposes.

The Court conducted a hearing regarding the motions on April 15, 2013. After careful consideration of the parties' arguments, their memoranda, and the evidentiary record presented, the Court will deny CB's Motion for Summary Judgment, and grant Plaintiffs' Motion to Amend, as discussed below.


1.Undisputed Facts

In support of its motion, CB described its operations in detail. CB Transport, Inc., is headquartered in Stanwood, Washington, and is owned by Bruce and Royce Carlson. In 2006, CB acquired a trucking company involved in the dairy hauling business, and began operating in and around Caldwell, Idaho, in 2006.

CB contracts with dairy farms and dairy processing plants to haul raw milk and processed dairy products. On the first leg of the milk's journey, CB picks up raw milk from dairy farms located in Idaho and Oregon and transports the milk to the dairy processing plants, which were located in Caldwell, Jerome, and Boise, Idaho. The dairy processing plants were owned and operated by Darigold, CB's main customer. Between September 2009 and August 2012, CB hauled raw milk from fifty different farms. Approximately 35-40 farms were located within Idaho, while the other 10-15 farms were located in Oregon. On average, 4% of CB's total raw milk hauls originated from Oregon dairy farms.

The second aspect of CB's hauling business consisted of "interplant" hauling of processed milk. CB would haul milk, buttermilk, condensed milk, and cream from one processing plant to another. The processing plants were located in Idaho, Washington, Oregon, and on occasion, Utah. The location of the plants did not change, but the volume of dairy product transported between plants, as well as the frequency of interplant hauls, varied from month to month. (Carlson Aff. ¶10, Dkt. 38.) The variation could be caused by customer orders, or mechanical problems requiring re-routing, among other things. On average, between September 2009 and August 2012, 14% of the total interplant hauls were interstate hauls.

The milk tanker trucks originated from the Caldwell Plant, located in Caldwell, Idaho. Ryan Thompson has been the plant manager in Caldwell since 2009. Between September 2009 and August 2012, CB employed between 25 and 35 milk tanker drivers.

The tanker drivers operated milk tankers weighing 26,000 or more pounds when not loaded with milk or milk products.

Plaintiffs in this case were employed as milk tanker drivers by CB, and hired to drive milk tankers filled with raw milk, and processed milk and dairy products. Plaintiffs, like all CB tanker drivers, were expected to maintain a Class A commercial driver's license to operate the milk tanker trucks, as well as have knowledge about federal regulations affecting interstate commerce. This knowledge included compliance with Federal Department of Transportation ("DOT") regulations. CB required its drivers to maintain compliance with Federal Department of Transportation regulations and Federal Motor Carrier Safety Regulations ("FMCSR"). (Carlson Aff. ¶ 15-16, Dkt. 38.)

Caldwell Plant Manager Ryan Thompson primarily was responsible for scheduling CB drivers. Each year, he assigned CB drivers to regular routes, which the driver would drive multiple days each week. The drivers assigned to these regular routes were subject to change, and could change, depending upon hiring or firing of employees, customer orders, mechanical problems, plant closures, or other reasons. The milk tanker drivers were not able to choose their own routes, and Thompson scheduled drivers to these regular routes without regard to driver preference. Thompson also reassigned drivers to other regular routes, and could assign any driver to a route that involved interstate travel, because all of CB's drivers were eligible to make interstate trips for deliveries.

There were various types of regular, assigned routes. For example, some milk tanker drivers drove routes hauling raw milk from Oregon and Idaho dairy farms to Idaho processing plants. Other drivers hauled raw milk from Idaho dairy farms to Idaho processing plants. Other drivers drove a pre-determined route between Caldwell, Idaho, and Issaquah, Washington, several times each week. And still other drivers hauled interplant loads between plants located in Idaho, or between Idaho and out-of-state plants. Some regular routes were entirely restricted to travel within Idaho. Other regular routes involved travel between Idaho and other states. The routes either ended at or originated at a milk processing plant. For example, some drivers would be assigned a route to pick up raw milk from farms in Oregon and Idaho, and deliver it to a processing plant in Idaho. Then, once the milk was processed into, for example, buttermilk, another CB driver would load the buttermilk at the Idaho processing plant, and transport it to another location in Idaho or in Washington, Utah, or Oregon. (Carlson Aff. ¶22 Dkt. 38; Thompson Aff. ¶10 Dkt. 39.)

In addition to a driver's regular assigned route, a driver could be assigned additional loads or hauls periodically. These additional assignments could occur due to plant shut downs, or because of customer orders, or due to internal staffing needs, such as an employee illness or vacation. Any CB driver could be asked to handle such an additional assignment. When selecting a particular driver to haul an additional load or to assist on another route, Thompson looked at a variety of factors, but primarily selected drivers based on their availability and location at the time he learned that a scheduling adjustment was necessary. Efficiency and flexibility were important, because CB hauled a perishable product, and so the ability to adapt to unexpected events was critical. Thus, Thompson selected a driver from his pool of drivers to fill an "emergency" route or pick up a route for an absent driver based upon efficiency considerations and driver availability at that moment.

With regard to the individual Plaintiffs, Thompson identified that five of the nine named Plaintiffs drove across state lines between September 2009 and September 2012. Octavio Cruz hauled processed milk and dairy products from Caldwell, Idaho, to Issaquah, Washington, a total of 44 times between October 2010 and April 2012. Stanley Dalrymple hauled milk and dairy products from Caldwell, Idaho, to Portland, Oregon, and to Issaquah, Washington, on seven occasions. Richard Ferguson hauled processed milk products between Caldwell, Idaho, and Ontario, Oregon, on 34 occasions between January and December 2010. Delbert Sturm hauled milk between Caldwell, Idaho, and Ontario and Nyssa, Oregon, on September 1, 2009. Dwayne Volk hauled processed dairy products from Caldwell, Idaho, to Ontario and Vale, Oregon, on four occasions in September 2009.

In March 2010, the United States Department of Labor conducted an investigation of CB Transport's overtime pay practices. The investigation resulted from a complaint from a driver alleging he had worked overtime in three work weeks while employed as a driver, but that he did not receive overtime pay. The DOL requested documentation of hours worked and payroll records covering the period between March 31, 2008, through March 30, 2010. CB supplied the documentation to the investigator. The DOL Audit concluded that the employee was exempt from overtime because he was in a pool of drivers who could be called to perform interstate deliveries at any time. (Smith Decl. Ex. 9, Dkt. 46-4.) Further, the Department of Labor concluded that all nineteen drivers and two mechanics employed by CB at the time were exempt from the overtime pay provisions of the FLSA, concluding that all of CB's drivers could be called to deliver products to Oregon, Washington, or Utah. (Id.)

After the audit, CB continued to engage in the same hauling and pay practices as described above.

Four Plaintiffs-Sturm, Cruz, Ferguson, and Dalrymple-submitted affidavits characterizing the facts differently than CB did, although they do not dispute the nature of CB's operations. Sturm was employed by CB from November 1, 2006, to February 21, 2011, as a truck driver transporting raw milk on regular routes between dairy farms located in Idaho to Darigold processing plants, also located in Idaho. Once the product had been unloaded at the processing plant, the raw milk was transformed into consumer products such as pasteurized milk, cottage cheese, and butter, among other products. Sturm was never asked to travel interstate after September 2, 2009,*fn1 and he continued to drive the same route for the remainder of his employment. (Sturm Aff. Dkt. 56-1.) Sturm stated that relief drivers were assigned to cover other drivers' assigned routes. (Sturm Aff. ¶ 11, Dkt. 56-1.)*fn2

Cruz was employed by CB from September 27, 2010, to May 24, 2012, as a truck driver transporting cream loads to and from Darigold processing plants. He drove a regular route throughout his employment between Darigold's processing plants in Caldwell or Boise, Idaho, and Jerome, Idaho, and never was asked to cover another driver's assigned route. Cruz "never ran an interstate route during the entirety of [his] employment with Defendant." (Cruz Aff. ¶10, Dkt. 56-2.) *fn3 Cruz also stated that relief drivers were assigned to cover other drivers' assigned routes. (Cruz Aff. ¶ 9, Dkt. 56-2.)

CB employed Ferguson between November 1, 2006, and December 17, 2010, as a truck driver transporting raw milk on regular routes between dairy farms within Idaho to a processing plant within Idaho. Ferguson continued to drive his assigned route, transporting raw milk to the processing plant, from October of 1998 to January 24, 2010. After January 24, 2010, his route changed to include picking up raw milk at dairies in Ontario, Oregon, because the McKee Dairy in Cambridge, Idaho, which was previously on his route, had closed.*fn4 Prior to this reassignment, he had not been asked to travel interstate. Ferguson also echoed that relief drivers were assigned to cover other drivers' assigned routes. (Ferguson Aff. ¶11, Dkt. 56-3.)

Dalrymple was employed by CB from January 5, 2010, to April 5, 2012, as a milk tanker driver who drove two types of regular routes transporting cream loads to and from Darigold processing plants, and also delivering raw milk from dairy farms to Darigold processing plants. Dalrymple's first assigned route, which he drove from January 5, 2010, to approximately June 28, 2010, required him to travel between either Caldwell or Boise, Idaho, and Jerome, Idaho. In February 2010, Dalrymple drove from Idaho to the Darigold plant in Portland, Oregon, and drove three runs to the Darigold plant in Issaquah, Washington.*fn5 CB asked Dalrymple to continue driving interstate runs, but Dalrymple declined to do so. After February 2010, he did not make any trips outside of the state of Idaho, and continued to drive regular routes between the Jerome, Idaho Darigold plant and other Darigold plants located in Idaho.

At the beginning of August 2010, Dalrymple was "reassigned from the cream route to be a relief driver for Delbert Sturm and Ron Wolfe." (Dalrymple Aff. ¶ 6, Dkt. 56-4.)*fn6 As a relief driver, he transported raw milk from Idaho dairies to Darigold's Idaho processing plants. When Sturm was terminated from his employment on February 21, 2011, Dalrymple was reassigned to be the principle driver for Sturm's routes. From February 21, 2011, until he left his employment, Dalrymple ran the same routes as Sturm had, between Idaho dairy farms and Idaho processing plants. At no time after February 21, 2011, were his routes reassigned or changed, and he was not asked to travel interstate. (Dalrymple Aff. Dkt. 56-4.)

2.Evidentiary Objection

Rule 56 of the Federal Rules of Civil Procedure requires affidavits used to support or oppose a motion for summary judgment to be made on personal knowledge, and set out facts that would be admissible in evidence. Fed. R. Civ. P. 56(c)(4). An opposing party may object to material cited to support or dispute a fact if it cannot be presented in a form that would be admissible in evidence. Fed. R. Civ. P. 56(c)(2). CB filed an evidentiary objection to the statement, "Relief drivers were assigned to cover certain other driver's [sic] assigned routes," which appeared in both Ferguson's and Cruz's affidavit. (Objection, Dkt. 57-1.)*fn7 The same statement appeared in Sturm's affidavit, but CB did not include a reference to Sturm's statement in its objection.

CB objected to the statement on the grounds that the Plaintiffs' statements lack the necessary personal knowledge and foundation to constitute admissible evidence, because they provide no information regarding where their knowledge of relief drivers came from or the basis for their knowledge. CB objects also on the grounds that the statements rely upon the statements of others, which would constitute inadmissible hearsay under Fed. R. Evid. 801(a), (b), and 802.

The objection is overruled. The objectionable statement is relevant to support Plaintiffs' assertion that they drove regular, assigned routes. Because Cruz, Sturm, and Ferguson worked at CB, they certainly had personal knowledge of CB's route assignment practices as they understood them. All three testified they drove regular routes. Undoubtedly, they knew about their own routes, and CB's practice regarding what would happen if one of them was absent or could not drive. The inference to be drawn from their statement is that a relief driver would take their route, or another's route. And, Dalrymple's affidavit contains a statement that at the beginning of August 2010, he was reassigned from the cream route "to be a relief driver for Delbert Sturm and Ron Wolfe." CB did not object to Dalrymple's statement. Dalrymple's statement confirms Cruz's, Sturm's, and Ferguson's statement that he was a relief driver. Thus, the Court finds that, for the purpose of this motion, the evidence that there were relief drivers, and that Dalrymple was a relief driver, is admissible.

As for the other objections raised by CB, the Court did not consider the statements material in reaching its decision, and therefore overrules the objections as moot.


1.Motion for Summary Judgment

A.Summary Judgment Standard

A principal purpose of summary judgment is to "isolate and dispose of factually unsupported claims ...." Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 256--57. The non-moving party must go beyond the pleadings and show "by [its] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

The party bearing the burden of proof at trial "must establish beyond controversy every essential element of its ... claim." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) (adopting decision of district court "as our own"). Because CB bears the burden of proving at trial that the exemption applies, to succeed on its summary judgment motion, it must establish beyond controversy every essential element of its claim.

A party who does not have the burden "may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact." Fed. R. Civ. P. 56(c)(1)(B) (advisory committee's note.) Furthermore, as a general rule, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." S. Cal. Gas Co., 336 F.3d at 889. Here, Plaintiffs do not have the burden but oppose summary judgment. Thus, they may rely on ...

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