Dilts v. Penske Logistics LLC

• Citation: 18 Wage & Hour Cas.2d (BNA) 403,819 F.Supp.2d 1109,161 Lab.Cas. P 35962
• Decision Date: 19 October 2011
• Docket Number: Case No. 08–CV–318 JLS (BLM).
• Parties: Mickey Lee DILTS, Ray Rios, Donny Dushaj, Plaintiffs, v. PENSKE LOGISTICS LLC; Penske Truck Leasing Co LP; et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)

161 Lab.Cas. P 35,962

18 Wage & Hour Cas.2d (BNA) 403

819 F.Supp.2d 1109

Mickey Lee DILTS, Ray Rios, Donny Dushaj, Plaintiffs,

v.PENSKE LOGISTICS LLC; Penske Truck Leasing Co LP; et al., Defendants.

Case No. 08–CV–318 JLS (BLM).

United States District Court, S.D. California.

Oct. 19, 2011.

James Jason Hill, Michael D. Singer, Cohelan Khoury & Singer, San Diego, CA, for Plaintiffs.

Christopher C. McNatt, Jr., Pasadena, CA, Randy Scott Grossman, Jones Day, San Diego, CA, Adam C. Smedstad, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Chicago, IL, James H. Hanson, R. Jay Taylor, Jr., Robert L. Browning, Scopelitis Garvin Light Hanson & Feary, Indianapolis, IN, for Defendants.

ORDER:

(1) GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE, (2) DENYING PLAINTIFF'S MOTION TO STRIKE, AND (3) GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

(ECF Nos. 108, 93, 87)

JANIS L. SAMMARTINO, District Judge.

Presently before the Court are Defendant's ¹ motion for partial summary judgment and Plaintiffs' motion to strike several Declarations submitted by Defendant in support of its motion for summary judgment, as well as Plaintiff's request for judicial notice. Having considered the parties' arguments and the law, the Court GRANTS Plaintiff's request for judicial notice, DENIES Plaintiffs' motion to strike and evidentiary objections AS MOOT, and GRANTS Defendant's motion for summary judgment.

BACKGROUND

This case arises out of Penske's alleged failure to provide lunch and rest breaks, pay overtime compensation, reimburse business expenses, and pay wages due to its employees. ( See Class Cert. Order 1, ECF. No. 72.) ² On April 26, 2010, the Court certified this case as a class action (ECF No. 72.) The class consists of “349 hourly appliance delivery drivers and installers in California who were assigned to its state-wide Whirlpool account.” (Class Cert. Order 4.)

Defendant Penske operates “warehouse, distribution and inventory management services throughout the State of California,” and hires hourly employees to engage in the “inventory, delivery, and installation of a multitude of vendor products.” (Pl.'s Mem. ISO Mot. for Class Cert. 7, ECF No. 55.) Although it has since lost its contract with Whirlpool, during the time period in question Penske provided both transportation and warehouse management services to Whirlpool in California. (Def.'s Mem. ISO MSJ 8, ECF No. 87.) Under its contract with Whirlpool, Penske employees received customer orders and based on those orders “caused appliances to be manufactured outside California and then delivered by third-party motor carriers” to one of Whirlpool's two Regional Distribution Centers (RDCs) within California. ( Id.) Penske warehouse employees inventoried the appliances at the RDC warehouses and then loaded the appliances onto trucks for delivery to Local Distribution Centers (LDCs) or for delivery and installation to customers in California. ( Id.) These trucks were driven either by Penske drivers/installers or by third-party motor carriers. ( Id.) The driver/installers are accompanied by installers, who generally did not hold a commercial motor vehicle license but assisted in the unloading and installing of appliances at their destinations. (Pl.'s Mem. ISO Mot. for Class Cert. 9.) The Penske employees did not travel over state lines in the course of carrying out their duties, but remained within California at all times.

Because Penske “expected” the Plaintiffs to take their meal breaks, they utilized “a systematic policy of automatically deducting 30–minutes of work time [to account for those] daily meal periods.” (Pl.'s Mem. ISO Mot. for Class Cert. 9; Def.'s Opp'n to Mot. for Class Cert. 2) “The deduction was taken without inquiry into whether the employee was actually provided with a timely 30–minute uninterrupted and duty-free meal period or not.” (Pl.'s Mem. ISO Mot. for Class Cert. 9.) Further, “Company policy ... did not permit the driver/installers to leave their truck unattended, nor were the teams allowed to turn off their Nextel during breaks.” (Pl.'s Memo. ISO Mot. for Class Cert. 8.)

The California meal and rest break (M & RB) laws involved in this motion are codified in Labor Code §§ 226.6 and 512. Section 226.6 states that employers shall not require employees to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission (IWC). Cal. Labor Code § 226.6. The applicable IWC order dictates, in pertinent part, a 30 minute meal period for every work period of more than five hours, and second 30 minute meal period for every work period of more than ten hours. IWC Order 9–2001(11).³ With regard to rest periods, the IWC order requires every employer to permit all employees to take rest periods at the rate of ten minutes per four hours worked, in the middle of the work period if possible. IWC Order 9–2001(12). Employers must provide one additional hour of pay for each day that the employer fails to provide the meal period or rest period. Cal. Labor Code § 226.6; IWC Order 9–2001(11–12).

Plaintiffs state five causes of action, alleging violations of several provisions of the California labor code as well as unfair business practices in violation of California Business and Professions Code Section 17200(UCL). All three lead Plaintiffs worked “out of Whirlpool's Ontario, California facility.” (Def.'s Opp'n to Mot. for Class Cert. 4–6, ECF No. 36.) Both Lead Plaintiff Rios and Lead Plaintiff Dushaj were employed as “installers” or helpers while Lead Plaintiff Dilts worked as a “driver/installer.” (Memo. ISO Mot. for Class Cert. 17.) Plaintiffs contend that Penske “used a uniform dispatch record that identified a delivery/installation schedule, but did not schedule meal periods for the proposed class.” ( Id. at 8.) Driver/installers were required to document their lunch period on “a pre-printed area on [the dispatch record] form.” ( Id.) Defendant “provided each driver/installer a Nextel device for communication with the dispatchers, supervisor and customers during the day” but “did not require the driver/installer teams to use the Nextel to notify the company of meal or rest periods.” ( Id.)

Penske filed its present motion for partial summary judgment on May 11, 2011. (ECF No. 87.) Penske claims it is entitled to summary judgment on all of Plaintiffs' meal and rest break claims, Counts II, III, and Count V to the extent that it alleges a UCL claim derivative of Counts II and III, arguing that these claims are preempted by federal law. (Defs.' Mem. ISO MSJ 7.) Plaintiffs filed an opposition to Penske's motion on June 20, 2011, along with a motion to strike the declarations attached to Penske's motion. (Pl.'s Opp'n, ECF Nos. 92 & 93.) Penske filed a reply to Plaintiffs' opposition on July 7, 2011 (Def.s' Reply, ECF No. 99) and an opposition to Plaintiffs' motion to strike on September 12, 2011. (Def.s' Opp'n, ECF No. 104.) Plaintiffs filed a request for judicial notice on October 10, 2011 (ECF No. 108), and Penske responded on October 11, 2011 (ECF No. 109). The Court heard oral argument on October 13, 2011.

At issue in the instant motion for summary judgment is not whether Penske violated California's M & RB laws, but instead whether these M & RB laws are preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAA Act) as a matter of law.⁴

LEGAL STANDARD

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) the moving party demonstrates the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Material,” for purposes of Rule 56, means that the fact, under governing substantive law, could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). For a dispute to be “genuine,” a reasonable jury must be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant can carry his burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. at 322–23, 106 S.Ct. 2548. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party cannot oppose a properly supported summary judgment motion by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

ANALYSIS

1. Plaintiff's Request for Judicial Notice

Plaintiffs move the Court to take judicial notice of a determination by the FMCSA, 73 Fed.Reg. 79204–01 (Dec. 24, 2008), in which the agency rejected a petition for preemption of the M & RB laws because it did not have the authority under its authorization statute. ( See Pl.'s Supp. RJN, ECF No. 108.) The Court finds that the documents are properly judicially noticed. See United States ex rel. Robinson Rancheria Citizens...