Gonzalez v. XPO Last Mile, Inc.

• Decision Date: 10 January 2022
• Docket Number: CIVIL ACTION NO. 1:19-10290-TSH
• Citation: 579 F.Supp.3d 252
• Parties: Ramon GONZALEZ, Victor Rodriguez Ortiz, and Addelyn Marte, on behalf of themselves and all others similarly situated, Plaintiffs, v. XPO LAST MILE, INC., d/b/a XPO Logistics, Defendant.
• Court: U.S. District Court — District of Massachusetts

579 F.Supp.3d 252

Ramon GONZALEZ, Victor Rodriguez Ortiz, and Addelyn Marte, on behalf of themselves and all others similarly situated, Plaintiffs,

v.XPO LAST MILE, INC., d/b/a XPO Logistics, Defendant.

CIVIL ACTION NO. 1:19-10290-TSH

United States District Court, D. Massachusetts.

Filed January 10, 2022

Hilary Schwab, Rachel J. Smit, Stephen S. Churchill, Fair Work, P.C., Boston, MA, for Plaintiff Ramon Gonzalez.

Hilary Schwab, Rachel J. Smit, Stephen S. Churchill, Steve Churchill, Fair Work, P.C., Boston, MA, for Plaintiffs Rodriguez Ortiz, Addelyn Marte.

Adam L. Lounsbury, Pro Hac Vice, Jackson Lewis PC, Richmond, VA, Benjamin R. Davis, Douglas J. Hoffman, Jackson Lewis PC, Boston, MA, for Defendant.

ORDER AND MEMORANDUM ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (Docket No. 56)

HILLMAN, D.J.

Plaintiffs Ramon Gonzalez, Victor Rodriguez Ortiz, and Addelyn Marte bring this action, on behalf of themselves and all others similarly situated, against defendant XPO Last Mile, Inc. ("XPO"). The plaintiffs are delivery drivers who delivered appliances and other large consumer goods on behalf of XPO, a freight forwarder and logistics services provider, to customers of one of XPO's clients, Lowe's Home Improvement ("Lowes"). The plaintiffs allege that XPO misclassified them as independent contractors in violation of M. G. L. c. 149, § 148B (Count I), failed to provide them the wages and benefits to which they were entitled in violation of M. G. L. c. 149, § 148 (Count II), failed to pay them a minimum wage in violation of M. G. L. c. 151, § 1A (Count III), and was unjustly enriched at their expense (Count IV). As to Counts I and II, the plaintiffs move to certify a class of drivers who performed deliveries in Massachusetts on behalf of XPO to customers of Lowe's within the period of July 20, 2015 to present, excluding helpers and any drivers who signed contracts with XPO. (Docket No. 56). For the following reasons, the Court grants the motion.

Background

XPO provides freight forwarding and logistics services to retailers, such as Lowe's, who sell large consumer goods. When a Lowe's customer purchases an appliance and requests in-home delivery, Lowe's sends information about the delivery to XPO. XPO then organizes the information into delivery routes and contracts with motor carriers to make the deliveries.¹ XPO and Lowe's have a Master Professional Services Agreement ("MPSA"), which incorporates a Statement of Work ("SOW"), defining their contractual relationship. The plaintiffs, working with motor carriers (or "contract carriers"), made deliveries on behalf of XPO to Lowe's customers in Massachusetts during the class period.

Pursuant to the third SOW, effective on August 25, 2016, XPO was required to "[m]anage" drivers by, inter alia , providing them with "training on process, product knowledge and customer service expectations," "validat[ing]" their "ability to perform appliance connections and basic customer service," and conducting annual background checks. XPO also was required to measure and report on the performance of drivers, including through customer survey scores, store survey scores, stop completion rates, and percentages of stops made within scheduled timeframes. In addition, the MPSA held XPO responsible for ensuring that its subcontractors complied with the Lowe's code of conduct.

As of June 2019, XPO's operations manager responsible for XPO's Lowe's business in Massachusetts was Donna Skinner. In that role, Skinner onboarded drivers, scheduled and coordinated deliveries, and handled customer claims. To onboard drivers, Skinner asked each prospective driver to fill out an application, submit a driver's license, photograph, and social security card, and undergo a drug test, a motor vehicle record check, and a background check. Once drivers were approved, she issued them an XPO badge and shirt, both of which she testified they were required to wear when making deliveries. XPO kept certain information about drivers, including the driver's application, license, and social security card, in an electronic database.

To schedule and coordinate deliveries, Skinner sent contract carriers a text message each night "telling them that this driver will be set at this store with this amount of stops for the next day." The contract carriers responded by either agreeing to the assignment or changing the drivers’ names. After the assignments were confirmed, XPO created a delivery manifest for each driver, setting an order of deliveries with expected timeframes for each stop.

When drivers arrived at their assigned Lowe's store each morning, they reviewed the delivery manifest and logged on to a mobile application called eTrack, which XPO used to, inter alia , track deliveries and communicate with drivers. Drivers then conducted an inventory check, loaded their trucks, and made deliveries in the sequence outlined by XPO in the manifest. Drivers kept XPO updated of their progress throughout the day and notified XPO if they had any issues reaching a customer. At the end of each day, drivers returned to a Lowe's store if, among other reasons, any items could not be delivered.

During delivery, a customer's appliance or property sometimes would get damaged. In those instances, Lowe's would send a claim to XPO, stating the cost of the damage and including a picture of the damage. XPO would collect any other relevant information and forward the claim to the relevant contract carrier. If the contract carrier did not dispute the claim within seven days, XPO charged the contract carrier for the damage. XPO did not determine whether contract carriers passed the charges onto the drivers responsible for the damage.

XPO paid contract carriers a flat rate per truck per day up to a certain number of base deliveries, with an additional amount for each delivery over the base number. As of June 2019, the flat rate for box trucks was between $485 and $600 per day for up to fifteen deliveries, with $39 to $40 for each additional delivery. In turn, contract carriers paid drivers. The plaintiffs, as drivers, were paid between $100 and $190 per day. As mentioned, when a customer claimed damage done to his or her property, XPO deducted the value of the claim from the amount paid to the contract carrier. The record suggests that contract carriers regularly passed deductions onto drivers. The ten drivers whose testimony is in the record all had deductions taken out of their paychecks.

During the class period, XPO contracted with approximately 240 contract carriers to deliver goods to Lowe's customers in Massachusetts. Some contract carriers had large, multistate operations; others had only one or two vehicles. Contract carriers determined whether to pay drivers as W-2 employees or independent contractors, how much to pay drivers, how to pay drivers (e.g., cash, check, direct deposit), and when drivers could take time off. Contract carriers also made initial hiring decisions, provided on-the-job training, and had final approval over driver assignments.

The named plaintiffs worked as drivers for various contract carriers during the class period, delivering appliances on behalf of XPO to Lowe's customers in Massachusetts. They commenced this action in July 2018 in Massachusetts Superior Court, alleging that XPO violated Massachusetts classification and wage laws. In February 2019, XPO removed the case to federal court. The plaintiffs now move for class certification.

Legal Standard

Federal Rule of Civil Procedure 23 sets the requirements for class certification. See Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 346, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Rule 23(a) requires that "(1) there be numerosity, (2) there be common questions of law or fact, (3) the class representative's claims be typical of the class, and (4) the representative representation of the class be adequate." In re New Motor Vehicles Canadian Export Antitrust Litig. , 522 F.3d 6, 18 (1st Cir. 2008). Rule 23(b)(3) requires that common questions "predominate" over individual questions, and that a class action be a "superior" method of adjudicating the controversy. See id.

A plaintiff seeking class certification must "affirmatively demonstrate" by a preponderance of the evidence that the Rule 23 requirements are met. See Wal-Mart Stores , 564 U.S. at 350, 131 S.Ct. 2541 ; In re Nexium Antitrust Litig. , 777 F.3d 9, 27 (1st Cir. 2015). A court must test the plaintiff's assertions with "rigorous analysis." See General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This may require consideration of the merits. See Amgen Inc. v. Connecticut Retirement Plans and Trust Funds , 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). In considering the merits, when necessary, a court may "test disputed premises," Tardiff v. Knox County , 365 F.3d 1, 4 (1st Cir. 2004), and "formulate some prediction as to how specific issues will play out," Waste Mgmt. Holdings, Inc. v. Mowbray , 208 F.3d 288, 298 (1st Cir. 2000).

Discussion

1. Numerosity

Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. Numerosity is a "low threshold." Garcia-Rubiera v. Calderon , 570 F.3d 443, 460 (1st Cir. 2009). "Classes of 40 or more have been found to be sufficiently numerous under Rule 23(a)(1)." DeRosa v. Massachusetts Bay Commuter Rail Co. , 694 F. Supp. 2d 87, 98 (D. Mass. 2010). Here, the plaintiffs assert that the proposed class contains approximately 544 individuals, and XPO does not contend otherwise.² Accordingly, the Court finds that the numerosity requirement is met.

2. Commonality

Rule 23(a)(2) requires that there be questions of law or fact common to the class. To satisfy this requirement, a plaintiff must demonstrate that the proposed class's claims "depend upon a common contention," the resolution of which is "central to the validity" of each of the class's claims. Wal-Mart , 564 U.S. at 350, 131 S.Ct. 2541 ; ...