Dasilva v. Border Transfer of Ma, Inc.

Decision Date09 November 2017
Docket NumberCivil Action No. 16–11205
Citation296 F.Supp.3d 389
Parties Marcos DASILVA and Matteus Ferreira, on behalf of themselves and all others similarly situated, Plaintiffs, v. BORDER TRANSFER OF MA, INC., and Patrick McCluskey, Defendants.
CourtU.S. District Court — District of Massachusetts

Benjamin Weber, Harold L. Lichten, Lichten & Liss–Riordan, P.C., Boston, MA, for Plaintiff.

Judith A. Leggett, Leggett Law Firm, LLC, Avon, MA, Adam C. Smedstad, Scopelitis Garvin Light Hanson & Feary, P.C., Chicago, IL, Andrew J. Butcher, Pro Hac Vice, Scopelitis, Garvin Light Hanson & Feary, Chicago, IL, Paul D. Root, Pro Hac Vice, Scopelitis Garvin Light Hanson & Feary, PC, Paul D. Root, Scopelitis Garvin Light Hanson & Feary, PC, Indianapolis, IN, for Defendant.


Patti B. Saris, Chief United States District Judge


Plaintiffs DaSilva and Ferreira used to work as delivery drivers for Defendant Border Transfer. They claim that Border Transfer improperly treated them as independent contractors when they were, in fact, employees, and that, as a result, Border Transfer unlawfully deducted certain business expenses from their pay under the Massachusetts Wage Act. Plaintiffs now seek certification of a class of similarly situated current and former drivers under Fed. R. Civ. P. 23. For the reasons discussed below, Plaintiffs have met the Rule 23 requirements. Thus, after hearing, the Court ALLOWS the motion for class certification (Docket No. 73).

I. Factual Allegations

Border Transfer is a broker registered with the Federal Motor Carrier Safety Administration ("FMCSA"). Docket No. 9–2 at 1; see also 49 U.S.C. § 13102(2). As a broker, Border Transfer arranges home delivery services for large retail stores such as Sears.

Border Transfer itself does not deliver goods. Instead, Border Transfer contracts with FMCSA-authorized motor carriers to perform the home deliveries. Border Transfer's contracts with each motor carrier, which Border Transfer calls Contract Carrier Agreements ("CCAs"), are all substantially the same. Docket No. 74–3 at 11 ("Matos Dep." at 33:17–18). Each of the CCAs states that the motor carrier is considered to be an independent contractor of Border Transfer. E.g., Docket No. 74–4 at 5 ("DaSilva CCA" ¶ 8 ).

Border Transfer only enters into CCAs with business entities. Docket Nos. 74–7 at 7, 74–8 at 2 (Border Transfer's "Carrier File Requirements," which require motor carriers signing CCAs to provide Border Transfer with a "copy of LLC or incorporation"). Drivers who wish to deliver for Border Transfer but who do not already have a corporate entity must create one; in at least one instance, Border Transfer helped a driver form a corporate entity and complete the steps to comply with federal regulations covering motor carriers. Docket No. 74–9 at 7–8.

In some cases, Border Transfer contracts with motor carrier companies that consist solely of a single driver who personally performs the delivery services. That was the case with named plaintiff Marcos DaSilva, who entered into a CCA with Border Transfer through Alpha Logistics Trucking, LLC ("Alpha Logistics"). Docket No. 74–4 at 9. DaSilva applied for a job as a delivery driver with Border Transfer. Docket No. 74–11 ¶ 4. A Border Transfer manager told him that he needed to form a company to sign a contract with Border Transfer, and the manager helped him fill out the necessary forms to create Alpha Logistics. Docket No. 74–11 ¶ 4. Alpha Logistics only ever operated one truck, and DaSilva was the sole driver for that truck. Docket No. 74–9 at 18.

In other cases, Border Transfer contracts with motor carrier companies that employ multiple drivers. That was the case with Matteus Ferreira, the other named plaintiff. Matteus Ferreira was the joint owner of Father & Son Transporting LLC with his father, Marcos Ferreira. Docket No. 74–10 at 9. Father & Son Transporting LLC was formed before the father, Marcos Ferreira, signed a CCA with Border Transfer. Docket No. 9–2 at 12; Docket No. 74–10 at 7. Father & Son Transporting LLC began by operating one truck for Border Transfer but eventually operated three trucks for Border Transfer. Docket No. 74–10 at 12–13. Those three trucks were operated by Matteus Ferreira, Marcos Ferreira, and several other persons hired by Father & Son Transporting LLC. Docket No. 74–10 at 13.

The motor carriers under contract with Border Transfer perform their deliveries from Sears' Westwood, Massachusetts facility. The CCAs require that all drivers who have an assigned route on a particular day attend a morning "stand-up" meeting at the facility. Docket No. 9–2 at 13; Docket No. 74–3 at 13. At the meeting, drivers might receive instructions on new installation processes, be informed of recurrent customer complaints, or receive training on how to communicate with customers. Docket No. 74–3 at 13, 29. The CCAs require drivers to wear a uniform each day, and drivers are not allowed to leave the facility if they do not comply with that mandate. Docket No. 9–2 at 17–18; Docket No. 74–3 at 14.

Delivery procedures are spelled out in the CCAs as well. Docket No. 9–2 at 14. Among the requirements is that the drivers "must run all delivery routes exactly as specified in the manifest." Docket No. 9–2 at 14. Those manifests are provided to drivers by Border Transfer and contain the order of deliveries and time windows for each delivery. Docket No. 74–3 at 22; Docket No. 74–14. Drivers must log deliveries as they happen by recording them on a smartphone app. Docket No. 74–3 at 17.

II. Procedural History

The plaintiffs filed the proposed class action complaint in this case on June 23, 2016. Docket No. 1. The original complaint named Border Transfer as the sole defendant and contained two counts: violation of the Massachusetts Wage Act and unjust enrichment.

Border Transfer moved to dismiss, arguing that the Wage Act claim was preempted by the Federal Administration Authorization Act of 1994, 49 U.S.C. § 14501(c). Docket No. 8. On January 5, 2017, the Court denied the motion as to the Wage Act claim but dismissed the unjust enrichment claim. Docket No. 49.

The operative complaint is the amended complaint, which was filed on May 1, 2017. Docket No. 65. The amended complaint names the President of Border Transfer, Patrick McCluskey, as an additional defendant and contains a single count for violation of the Wage Act.1 In substance, the plaintiffs allege that their misclassification resulted in unlawful deductions from their pay, including damage claims and uniforms, as well as unlawful requirements that they pay for workers' compensation coverage and cargo insurance.

Now pending before the Court is the plaintiffs' motion for class certification, filed on June 19, 2017. Docket No. 73. The proposed class is defined as follows:

All individuals who 1) entered into a Contract Carrier Agreement (or similar agreement) directly or through a business entity; 2) personally provided delivery services for Border Transfer on a full-time basis in Massachusetts; and 3) who were classified as independent contractors, at any time since June 23, 2013.

Docket No. 73 at 1. This class definition excludes so-called secondary drivers, who provided delivery services for Border Transfer under contracts between Border Transfer and other persons, and so-called absentee contractors, who held contracts with Border Transfer but did not drive a truck themselves. Docket No. 74 at 4 n.6, 23.

I. Legal Framework
A. Massachusetts Wage Law

The Massachusetts Wage Act requires prompt and full payment of wages due. It provides that "in no event shall wages remain unpaid by an employer for more than six days from the termination of the pay period in which such wages were earned by the employee." Mass. Gen. Laws ch. 149, § 148. The Massachusetts Supreme Judicial Court has interpreted the statute as banning improper wage deductions, even where the employee has given his or her assent. Camara v. Attorney Gen., 458 Mass. 756, 941 N.E.2d 1118, 1121–22 (2011).

The scope of covered employees for the Massachusetts Wage Act is governed by the Massachusetts Independent Contractor Statute:

[A]n individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Mass. Gen. Laws ch. 149, § 148B(a). Under the statute, a worker is an employee and not an independent contractor if any one of the three prongs is not met. In other words, "to rebut the presumption of employment, an employer must satisfy all three of these prongs." Chambers v. RDI Logistics, Inc., 476 Mass. 95, 65 N.E.3d 1, 8 (2016). The three prongs are referred to as Prongs A, B, and C (or, occasionally, Prongs 1, 2, and 3) in the case law.

The First Circuit held last year that Prong B is preempted by federal law as applied to motor carriers such as Border Transfer. Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429, 442 (1st Cir. 2016). As such, for the defendants to defeat the presumption of employment, they must prevail on both Prongs A and C. The plaintiffs can prevail by showing that either Prong A or C is not satisfied.

B. Class Certification

Federal Rule of Civil Procedure 23(a) imposes four "threshold requirements" applicable to all class actions:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the

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