Muniz v. XPO Last Mile, Inc.
| Docket Number | Civil Action 4:18-11905-TSH |
| Decision Date | 31 August 2022 |
| Parties | JUSTIN MUNIZ, MOHAMMED BELAABD, NELSON QUINTANILLA, JOSE DILONE, and VICTOR AMARO, on behalf of themselves and all others similarly situated, Plaintiffs, v. XPO LAST MILE, INC., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
ORDER AND MEMORANDUM ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Docket No. 113)
Plaintiffs Justin Muniz, Mohammed Belaabd, Nelson Quintanilla, Jose Dilone, and Victor Amora 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 contracted with XPO, a federally authorized freight forwarder, to deliver appliances and other large consumers goods for XPO's retail clients. The plaintiffs allege that XPO misclassified them as independent contractors and unlawfully deducted wages from their pay in violation of the Massachusetts Wage Act, M. G L. c. 149, §§ 148 and 150. The plaintiffs move to certify a class of drivers who, personally or on behalf of their business entity, signed a contract with XPO and personally performed deliveries for XPO full-time in Massachusetts from July 2015 to the present. (Docket No 113). Courts in this district, including this Court, have granted similar motions for class certification. See DaSilva v. Border Transfer of MA, Inc., 296 F.Supp.3d 389, 394 (D. Mass. 2017); Vargas v. Spirit Delivery & Distribution Servs., Inc., 245 F.Supp.3d 268, 290 (D. Mass. 2017); Martins v. 3PD Inc., 2014 WL 1271761, at *11 (D. Mass. Mar. 27, 2014). Following those cases, and for the reasons articulated below, the Court grants the plaintiffs' motion.
XPO works with retailers on “last mile delivery” of appliances and other large consumer goods. Typically, when a customer of one of XPO's retail clients makes a purchase and requests in-home delivery, the retail client sends the customer's order information to XPO. XPO then uploads the order information to XPO's proprietary software and organizes disparate orders into efficient delivery sequences and routes. For some retail clients, XPO aggregates retail goods at a centralized location before delivery. For other retail clients, XPO operates a dedicated warehouse or arranges deliveries out of the retail client's retail store.
To make deliveries, XPO contracts with motor carriers, whom XPO refers to as “Delivery Service Providers” or “DSPs.” Some DSPs consist of a single driver operating a single truck; other DSPs consist of a team of drivers operating a fleet of trucks. XPO requires all DSPs to form entities before contracting.
The contractual relationship between XPO and DSPs is set forth in a “Delivery Service Agreement” or “DSA.” As far as the class certification record is concerned, each DSA is substantively the same. The DSA grants DSPs discretion over how to deliver freight; it also gives DSPs permission to deliver goods for other companies. The DSA further provides that it is not intended to create an employer/employee relationship for any purpose.
The day before a scheduled delivery, XPO generates a delivery manifest and assigns it to a DSP. The DSP may reject the assignment. If the DSP accepts, the next morning, the DSP goes to the pick-up location and receives any updates from the retail client. XPO managers regularly hold morning meetings with DSPs at pick-up locations to gather or provide feedback and address any issues. Some retail clients provide checklists and instructions for deliveries. If any issues arise during the day, such as heavy traffic or a dissatisfied customer, the DSP may contact XPO for assistance.
XPO requires all DSPs to have their own trucks, DOT numbers, and insurance coverage. XPO requires each driver to complete a background check, a drug screen, and a motor vehicle check. XPO provides each driver with an identification badge. XPO maintains records or all approved drivers. XPO also requires that each driver be accompanied by a “helper” to assist the driver with physically loading and unloading larger deliveries. To ensure its retail clients are satisfied, XPO tracks the performance of DSPs by monitoring metrics such as completion rates and customer feedback. XPO sometimes but not always shares those metrics with DSPs. In certain circumstances, XPO may terminate a relationship with a DSP due to poor customer feedback.
XPO pays DSPs either on a per-stop basis or by a flat, daily rate. DSPs are responsible for paying their helpers and “secondary drivers,” if they have any, who may drive the DSP's truck(s) but who do not themselves have a contract with XPO. If a driver or helper causes any property damage during a delivery, XPO may deduct the value of the damage from the DSP's pay. DSPs may deal with the deduction as they wish; they may, for example, absorb the cost, pass it on to a helper or secondary driver, or file an insurance claim.
The named plaintiffs made deliveries for XPO during the class period. Justin Muniz delivered Lowe's goods for XPO seven days per week from 2015 to 2017. He contracted with XPO through an entity he created in 2004 called S&I Delivery, LLC. He operated a single truck. Mohammed Belaabd delivered IKEA and Amazon goods for XPO five to seven days per week from 2015 to 2019. He operated through an entity he created called Atlas Transportation. He operated a single truck, except for six months in 2018 when he operated two trucks. Nelson Quintanilla delivered IKEA goods for XPO five days per week starting in 2014. His wife signed a contract with XPO on behalf of an entity Quintanilla and his wife own called VN Transportation. Quintanilla operated a single truck. Jose Dilone delivered Lowe's goods for XPO seven days per week in 2017. Dilone contracted with XPO through an entity he created called Maxi Truck. Dilone operated a single truck. Victor Amaro delivered Lowe's goods for XPO five days per week from 2015 to 2019. He contracted with XPO through an entity he created called Skyrlee Express. Amaro operated a single truck, except for one month when he operated two tucks. At various points, each named plaintiff worked with helpers and/or secondary drivers. When customers complained of damage to goods or property, XPO made deductions to each named plaintiff's pay.
During the class period, XPO contracted with approximately 534 DSPs to make deliveries in Massachusetts. XPO's data suggest that 349 of the DSPs worked with secondary drivers, 127 of the DSPs used one secondary driver per week, and 83 of the DSPs used at least five secondary drivers per week. Moreover, 264 of the DSPs worked with more than one XPO client, and 426 of the DSPs made deliveries both inside and outside Massachusetts.
Muniz commenced this action in July 2018 in Massachusetts state court. After XPO removed the case to federal court, Muniz twice amended the complaint to add Belaabd, Quintanilla, Dilone, and Amora as additional named plaintiffs. Collectively, the plaintiffs allege that XPO misclassified them as independent contractors and unlawfully deprived them of wages to which they were entitled under M. G. L. c. 149, §§ 148 and 150. The plaintiffs now move for class certification, seeking to certify the following class:
All individuals who personally or on behalf of their business entity, signed a Service Agreement with XPO and who personally performed deliveries for XPO full-time in Massachusetts between July 2015 and the present.
The plaintiffs define “full-time” as “personally making deliveries at least 80 percent of the days XPO assigns routes to the contractor for at least three months and who average performing deliveries for XPO at least four days per week during that time span.” In effect, the proposed class excludes primary drivers who only occasionally made deliveries for XPO or recruited secondary drivers to work in their place.[1] XPO opposes class certification.
Federal Rule of Civil Procedure 23 governs class certification. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 346 (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's 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. Rule 23 also implicitly requires that putative class members be “ascertainable” with reference to objective criteria. See In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015).
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; In re Nexium, 777 F.3d at 27. A court must test the plaintiff's assertions with “rigorous analysis.” See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). This may require consideration of the merits. See Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. 455, 466 (2013). In considering the merits, 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).
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...
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