Ordosgoitti v. Werner Enters.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Decision Date: 24 March 2022
• Docket Number: 8:20-CV-421
• Parties: GLIVER ORDOSGOITTI, individually and on behalf of all others similarly situated; Plaintiff, v. WERNER ENTERPRISES, INC., and WERNER LEASING, LLC, Defendants.

GLIVER ORDOSGOITTI, individually and on behalf of all others similarly situated; Plaintiff,
v.
WERNER ENTERPRISES, INC., and WERNER LEASING, LLC, Defendants.

No. 8:20-CV-421

United States District Court, D. Nebraska

March 24, 2022

MEMORANDUM AND ORDER

BRIAN C. BUESCHER, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Gliver Ordosgoitti brings a putative class-action lawsuit on behalf of a class of truck drivers who entered into contractor operating, vehicle-lease, and service agreements with defendants Werner Enterprises, Inc. (“Werner Enterprises”), and Werner Leasing, LLC (“Werner Leasing”). The lawsuit alleges that Defendants violated the Nebraska Seller-Assisted Marketing Plan Act (“SAMP Act”) and the Nebraska Consumer Practices Act (“NCPA”), and committed fraud, negligent misrepresentation, and fraudulent concealment. Filing 41 at 10-21. Before the Court is Defendants' Motion for Partial Summary Judgment, which argues that Ordosgoitti signed a waiver of his ability to bring a class-action suit against Defendants. Filing 65. For the reasons stated herein, the Court grants Defendants' Motion.

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II. BACKGROUND

Ordosgoitti, a Florida resident, served as an “owner operator” truck driver for Werner Enterprises from August of 2018 to January of 2021. Filing 41 at 4; Filing 75-6 at 1. On August 23, 2018, Ordosgoitti, who formerly worked as a “company driver” for Werner Enterprises, entered into a lease agreement for a truck with Werner Leasing, a wholly owned subsidiary of Werner Enterprises. Filing 67-1 at 2; Filing 67-3 at 1; Filing 69-1 at 1. That same day, Ordosgoitti signed a Contractor Operating Agreement with Werner Enterprises. Filing 75-2 at 1-17. Pursuant to the Contractor Operating Agreement, Ordosgoitti provided freight-shipping services for Werner Enterprises. Filing 75-2 at 4. The agreement stated that Ordosgoitti, as an independent contractor, would use the truck he leased from Werner Leasing, identified as the “EQUIPMENT, ” to transport, load, and unload shipments on Werner Enterprises' behalf. Filing 75-2 at 4, 14; Filing 67-3 at 10 (showing VIN number that is identical to the VIN number of the vehicle identified in the 2018 Contractor Operating Agreement). While the lease agreement with Werner Leasing had a term of thirty-six months, terminable by either party every twelve months, Filing 67-3 at 6, 10, the Contractor Operating Agreement was indefinite and terminable by either party.^[1] Filing 67-2 at 13. Ordosgoitti and Werner Enterprises entered into a second Contractor Operating Agreement on June 12, 2019, which superseded the prior one. Filing 75-3 at 1-17. The provisions of the second Contractor Operating Agreement are substantively similar to the provisions in the first. Compare Filing 75-2 at 1-17, with Filing 75-3 at 1-17.

On January 10, 2020, Ordosgoitti signed an amendment to the leasing agreement he had with Werner Leasing. Filing 69-1 at 2; Filing 69-2 at 1. A few months later, on June 11, 2020, Ordosgoitti and Werner Enterprises entered into a third Contractor Operating Agreement. Filing

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67-2 at 1-19. Ordosgoitti claims that he was instructed to sign this agreement if he wanted to continue driving for Werner Enterprises. Filing 69-1 at 1. He further states that he did not have an opportunity to discuss or negotiate the terms of the agreement. Filing 69-1 at 1-2.

The 2020 Contractor Operating Agreement, like the 2018 and 2019 ones, stated that Ordosgoitti would provide freight shipping services to Werner Enterprises and identified the truck he was leasing from Werner Leasing as the “EQUIPMENT” he would use to transport, load, and unload freight on behalf of Werner Enterprises. Filing 67-2 at 4, 15. However, the 2020 Contractor Operating Agreement forbade Ordosgoitti from using the truck he was leasing from Werner Leasing to provide services to other carriers. Filing 67-2 at 4. Importantly, the 2020 Contractor Operating Agreement also included a class-action-waiver provision stating:

WAIVER. CONTRACTOR AND CONTRACTOR'S WORKERS WAIVE ANY RIGHT TO INITIATE, JOIN (I.E., OPT IN TO), REMAIN IN (I.E., NOT OPT OUT OF), OR OTHERWISE PARTICIPATE IN ANY CLASS ACTION, COLLECTIVE ACTION, CONSOLIDATED ACTION, OR REPRESENTATIVEACTIONBROUGHTAGAINSTCARRIER,

INCLUDING BUT NOT LIMITED TO SUCH ACTIONS BROUGHT UNDER STATE OR FEDERAL LAW AND THOSE ARISING UNDER THE FAIR LABOR STANDARDS ACT.

Filing 67-2 at 13.^[2]

The relationship between Ordosgoitti and Werner Leasing and Werner Enterprises broke down, however, and Ordosgoitti filed suit against Werner Leasing and Werner Enterprises on June 25, 2019. Filing 1. In his Amended Complaint, Ordosgoitti generally alleges that Defendants made misrepresentations to him and other drivers to induce them to enter into leasing agreements with Werner Leasing and contractor operating agreements with Werner Enterprises. Filing 41 at 2-3,

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9. Defendants filed their Motion for Partial Summary Judgment on Ordosgoitti's putative class-action claims on December 9, 2021.

III.ANALYSIS

A. Standard of Review

“Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is not disfavored and is designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” See Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “an absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex, 477 U.S. at 323). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

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In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than ‘the mere existence of some alleged factual dispute'” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

B. Enforceability of the Class-Action Waiver for Claims Against Werner Enterprises

Both Werner Enterprises and Werner Leasing have moved for summary judgment based on the class-action waiver. The Court addresses the applicability of the waiver as it relates to the two defendants in turn. Werner Enterprises seeks dismissal of Ordosgoitti's putative class-action claims by enforcing the class-action waiver provision in the 2020 Contractor Operating Agreement against Ordosgoitti. Filing 66 at 1. Ordosgoitti does not contest that both he and Werner Enterprises are parties to the Contractor Operating Agreement and that the terms unambiguously waive Ordosgoitti's right to bring a class-action suit against Werner Enterprises. Instead, Ordosgoitti argues the waiver is unenforceable based on rescission, unconscionability, or equity concerns. The Court addresses these arguments and concludes that the waiver provision is enforceable. Accordingly, Ordosgoitti may not assert a putative class-action lawsuit against Werner Enterprises.

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1. Rescission Under Fraud and the Nebraska SAMP Act

Ordosgoitti argues that the waiver provision is unenforceable because, under the Nebraska SAMP Act and common-law fraud, the Contractor Operating Agreement is subject to rescission. Filing 68 at 5-7. Ordosgoitti contends that if the Contractor Operating Agreement is subject to rescission, then the waiver provision in the Contractor Operating Agreement may also be rescinded. Filing 68 at 5-7. In response, Defendants assert that the rescission remedy is incompatible with Ordosgoitti's damages claim for fraudulent inducement and, therefore, the two cannot be brought together. Filing 74 at 4-6.

Nebraska law requires that when a defendant fraudulently induces the plaintiff to enter a contract the plaintiff must choose to “either affirm the contract and sue for damages or disaffirm and be reinstated to the position existing prior to the contract.” Little v. Gillette, 354 N.W.2d 147, 153 (Neb. 1984). If the plaintiff elects to affirm the contract and sue for damages, Nebraska courts “adhere[ ] to what is known as the ‘benefit-of-the-bargain' rule, that is, that the measure of...