Espenscheid v. Directsat U.S.A.

• Citation: 708 F.Supp.2d 781
• Decision Date: 13 April 2010
• Docket Number: No. 09-cv-625-bbc.,09-cv-625-bbc.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: Aaron L. ESPENSCHEID, Gary Idler and Ricardo Bolano, on behalf of themselves and a class of employees and/or former employees similarly situated, Plaintiffs,v.DIRECTSAT USA, LLC and UniTek USA, LLC, Defendants.

708 F.Supp.2d 781

Aaron L. ESPENSCHEID, Gary Idler and Ricardo Bolano, on behalf of themselves and a class of employees and/or former employees similarly situated, Plaintiffs,v.DIRECTSAT USA, LLC and UniTek USA, LLC, Defendants.

No. 09-cv-625-bbc.

United States District Court,

W.D. Wisconsin.

April 13, 2010.

COPYRIGHT MATERIAL OMITTED

Michael John Luebke, Robert Gingras, Gingras, Cates & Luebke, S.C., Michael J. Modl, Timothy D. Edwards, Axley Brynelson, LLP, Madison, WI, for Plaintiffs.

Colin D. Dougherty, Eric J. Bronstein, Gregory Voshell, John P. Elliott, Elliott Greenleaf & Siedzikowski, P.C., Blue Bell, PA, Drew Cochrane, Stafford Rosenbaum, LLP, Michael J. Modl, Axley Brynelson, LLP, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

In this proposed class and collective action for monetary and injunctive relief, plaintiffs Aaron Espenscheid, Gary Idler and Ricardo Bolano contend that defendants DirectSat USA, LLC and UniTek, LLC violated FLSA and certain wage and overtime compensation laws of Wisconsin, Minnesota and Pennsylvania. Plaintiffs bring this lawsuit as a class action on behalf of four separate classes of installation technicians employed or formerly employed by defendants: (1) a nationwide opt-in class for violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219; (2) a Wisconsin class for violations of Wisconsin wage and overtime compensation laws; (3) a Minnesota class for violations of Minnesota wage and overtime compensation laws; and (4) a Pennsylvania class for violations of Pennsylvania wage and overtime compensation laws. Plaintiffs intend to pursue their state law claims under Fed.R.Civ.P. 23 in the form of opt-out classes, while simultaneously prosecuting the FLSA claims pursuant to a 29 U.S.C. § 216(b) opt-in class.

This court has jurisdiction pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331 over plaintiffs' FLSA claims. Because at least one named plaintiff and defendants are citizens of different states and more than $5,000,000 is in dispute, jurisdiction over the FLSA, Wisconsin and Minnesota state law claims is present under 28 U.S.C. § 1332(d) (commonly known as the Class Action Fairness Act of 2005). Also, this court has supplemental jurisdiction over plaintiffs' Pennsylvania state law claims under 28 U.S.C. § 1367(a). Now before the court is defendants' motion to transfer this case to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a) or, alternatively, to dismiss plaintiffs' state law claims because they are precluded, preempted or incompatible with the FLSA claims and fail to state claims upon which relief may be granted, dkt. # 45. Also before the court is defendants' motion for costs and attorneys' fees pursuant to Fed.R.Civ.P. 41(d), dkt. # 49.

Because I conclude that the Eastern District of Pennsylvania is not clearly more convenient and transfer would not promote the interests of justice, I am denying defendants' motion to transfer. Also, I conclude that plaintiffs' state law class action claims are not incompatible with or preempted by their federal collective action claims or preempted by the FLSA and that plaintiffs have adequately pleaded their state law class action claims pursuant to Fed.R.Civ.P. 8. Thus, I am denying defendants' motion to dismiss. Finally, I conclude that plaintiffs must pay defendants costs that defendants incurred in defending the previously dismissed Minnesota and Pennsylvania actions.

When deciding whether the moving party has made the necessary showing for a transfer, a court may rely on the allegations of the complaint and may receive and weigh affidavits submitted by the parties. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293-94 (7th Cir.1989). In deciding a motion to dismiss, a court should consider only the facts contained in the plaintiff's complaint. General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). Thus, for the purpose of ruling on the pending motions, I draw the following facts from the amended complaint and the declarations submitted by the parties.

FACTS

A. Allegations of Fact in Amended Complaint

Defendants DirectSat USA, LLC and UniTek USA are citizens of Delaware and Pennsylvania. DirectSat USA is a subsidiary of UniTek USA. Defendants are engaged in the satellite installation business and perform installations and make service calls throughout the United States. They employ more than 1,500 installation technicians who are responsible for installing, upgrading, troubleshooting and maintaining defendants' installation of DirecTV's satellite equipment.

Plaintiff Aaron Espenscheid is a citizen of Wisconsin and resides in Beaver Dam, Wisconsin. Plaintiff Espenscheid was employed in defendant DirectSat's Madison, Wisconsin office. Plaintiff Gary Idler is a citizen of Minnesota and plaintiff Richard Bolano is a citizen of Pennsylvania. Plaintiffs and putative class members were employed as installation technicians.

As employees of defendants, plaintiffs and putative class members were required to drive company-owned or personally-owned vehicles to and from various job sites to perform work related to DirectSat's installation of satellite televisions for DirecTV. Pursuant to DirectSat's national policies, plaintiffs are directed to complete their assigned jobs “with minimal overtime.” To complete their assigned installation jobs, plaintiffs are required to complete a number of other tasks, such as traveling to their assigned jobs at the beginning of the day, traveling home from their last job at the end of the day, travel to and from a customer's home to perform service work on installations that were not completed successfully, completing work activity logs, reading work-related emails, reconciling and restocking equipment, printing out and reviewing work orders and attending mandatory work meetings. In addition, defendants' employee handbook requires plaintiffs to complete daily vehicle inspections, attend mandatory work meetings, fulfill training requirements and clean and maintain their vehicles and tools. Plaintiffs routinely start work early and end work late because otherwise, they cannot complete the required number of expected jobs per day without getting “written up” under defendants' performance policies and procedures. After plaintiffs complete their work at the final job site of each day, they are permitted to drive their own or defendants' vehicles to their personal residences. Once there, defendants' policies require plaintiffs to unload various pieces of equipment from their work related vehicles into their personal residences. At the start of each work day, plaintiffs must reload the work equipment back into their work vehicles.

Plaintiffs and the class members are not compensated for any of their “non-productive” work activities, including, among others, driving to and from work sites, loading and unloading tools into their vehicles and cleaning their vehicles. Instead, they are compensated under a “piece rate,” or flat fee, system in which they receive a set amount of compensation for each completed service call, depending on the nature of the services provided. The “set amount” that each class member receives is tied to a “proficiency rating.” Plaintiffs and class members are assigned to specific, numerically ranked levels of seniority or proficiency within each job category, typically ranging from 1-3. Under this system, the higher the proficiency rating for plaintiff or the class member, the higher the “set amount” for each assigned job. To achieve a higher proficiency rating and higher rate of pay per completed job, class members are encouraged to complete more jobs per day but not to records all of the time they spend completing the jobs and other tasks. This is done with defendants' supervisors' knowledge and acquiescence. As a result, plaintiffs and the putative class members are not compensated for overtime hours for productive work.

B. Additional Facts Related to Defendants' Motion to Transfer and Motion for Costs

Defendants' headquarters are located in Montgomery County, Pennsylvania, which lies within the Eastern District of Pennsylvania. Defendants developed the duties for installation technicians and the employee handbook in Montgomery County. The duties and handbook are identical across the United States. Elizabeth Downey, Dan Yannantuono and Yvette Schockman are corporate employees responsible for setting and enforcing wage and compensation policies for defendants. They are located in Montgomery County, as are all of defendants' corporate witnesses. All of defendants' official payroll records, time sheets and electronic time capture are kept in Montgomery County, Pennsylvania. Defendant DirectSat has approximately 24 field offices throughout the country, including three in Wisconsin and three in Minnesota. Each field office has employees who hold the following positions: general manager, project manager, field supervisor, project administrator and installation technicians. Managers are responsible for implementing DirectSat's policies. Field supervisors are responsible for the supervision of installers, and installers provide their timesheets to the project administrator at each local field office. After technicians fill out their time sheets, the sheets are scanned, faxed or sent overnight to defendants' corporate headquarters in Montgomery County, Pennsylvania. The electronic time system is accessible to field offices only for the purpose of imputing time; thus, the electronic system is not a storage system that can be accessed remotely. There are no personnel files stored or kept in the field offices. All official and complete personnel files are kept in Blue Bell, Pennsylvania, including all of the new hire paperwork, benefit information, corrective action and disciplinary action.

There are approximately 5,300 current and former DirectSat employees who may...