Orth v. J & J & J Pizza, Inc., Civil Action No. 19-cv-10709-ADB

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtBURROUGHS, D.J.
PartiesMICHAEL ORTH, individually and on behalf of similarly situated persons, Plaintiff, v. J & J & J PIZZA, INC. d/b/a DOMINO'S PIZZA and CARLOS FERREIRA, Defendants.
Decision Date25 March 2020
Docket NumberCivil Action No. 19-cv-10709-ADB

MICHAEL ORTH, individually and on behalf of similarly situated persons, Plaintiff,

Civil Action No. 19-cv-10709-ADB


March 25, 2020



Lead Plaintiff Michael Orth ("Plaintiff") is a former delivery driver at Domino's Pizza stores located in Fall River, Massachusetts. [ECF No. 9 ¶ 7 ("Am. Compl.")]. Plaintiff brings this suit against Defendants J & J & J Pizza, Inc. d/b/a Domino's Pizza ("Domino's") and Carlos Ferreira ("Ferreira") (collectively, "Defendants"), as a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and as a class action under the Massachusetts Minimum Fair Wage Act ("Wage Act"), Mass. Gen. Laws ch. 151, et seq., to recover unpaid wages. [Id. ¶ 2]. Currently pending before the Court is Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF No. 12]. For the reasons set forth below, Defendants' motion to dismiss, [ECF No. 12], is DENIED.


A. Factual Background

The following facts are drawn from the Complaint, the well-pleaded allegations of which are taken as true for the purposes of evaluating the motion. See Ruvio v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).

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Defendants own and operate multiple Domino's Pizza franchise stores located in Fall River and Taunton, Massachusetts. [Am. Compl. ¶ 8]. Ferreira owned a substantial interest in Domino's and was an officer with managerial responsibilities. [Id. ¶ 6]. In connection with these roles, Ferreira "put the pay scheme at issue in place, [and oversaw] and enforced Defendants' pay practices." [Id. ¶ 10].

Defendants employed Plaintiff as a delivery driver from approximately June 2017 to March 2018. [Am. Compl. ¶ 7]. Rather than providing delivery drivers with vehicles, Defendants required drivers to maintain safe, legally operable, and insured automobiles at their own expense. [Id. ¶ 12]. Drivers consequently incurred costs for gasoline, vehicle parts and fluids, repair and maintenance services, insurance, depreciation, and any additional expenses. [Id. ¶ 13]. Defendants paid Plaintiff and other drivers a wage of $7.00 per hour while making deliveries. [Id. ¶ 23]. In addition to this hourly wage, Defendants paid Plaintiff and other drivers $1.00 per delivery as reimbursement for their vehicle expenses. [Id. ¶¶ 14, 25]. Plaintiff drove an average of eight to ten miles per delivery, [id. ¶ 25], resulting in Defendants having reimbursed Plaintiff between $0.13 and $0.10 per mile, [id.]. While working for Defendants, Plaintiff made three or more deliveries per hour except for the summer of 2017, when he made four or more deliveries per hour. [Id. ¶ 27].

During the relevant time period, the federal minimum wage was $7.25 per hour, or $2.13 for tipped employees, and the Massachusetts minimum wage was $11.00 per hour, or $3.75 for tipped employees. [Am. Compl. ¶ 24]. Also during the relevant time period, the IRS's standard business mileage reimbursement rate was between $0.535 and $0.58 per mile. [Id. ¶ 16]. This rate is calculated to reflect the average cost of owning and operating a vehicle for the average driver. [Id. ¶ 16]. In 2018, the American Automobile Association's ("AAA") estimate of these

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costs was between $0.51 and $0.75 per mile, depending on the mileage driven. [Id. ¶ 16]. Due to the nature and conditions of delivery driving (frequent starting and stopping of the engine, frequent braking, short routes, and driving under time pressure), the cost of owning and operating a vehicle used for deliveries is generally higher than average. [Id. ¶ 17].

Using the IRS's lower-end mileage rate of $0.535 per mile and subtracting Defendants' highest possible per-mile reimbursement rate for Plaintiff's deliveries, $0.013, Plaintiff alleges that every mile he drove decreased his net wages by at least $0.405 per mile. [Am. Compl. ¶ 26]. With an average of three deliveries per hour, Plaintiff maintains that every hour on the job decreased his net wages by $1.215 ($0.405 multiplied by three deliveries). [Id. ¶ 27]. These unreimbursed vehicle expenses allegedly decreased the amount Defendants paid Plaintiff and other drivers, resulting in an hourly wage that fell below the mandatory minimum wage under both state and federal law. [Id. ¶¶ 30, 53, 65].

B. Procedural Background

Plaintiff filed his complaint on April 12, 2019. [ECF No. 1]. On July 3, 2019, Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). [ECF No. 7]. On July 16, 2019, Plaintiff filed an amended complaint, [Am. Compl.], and on July 17, 2019, the Court denied Defendants' motion to dismiss as moot, [ECF No. 10]. Defendants then filed a renewed motion to dismiss on July 29, 2019, [ECF No. 12], and Plaintiff opposed on August 12, 2019, [ECF No. 14].


A. Motion to Dismiss Standard

When analyzing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to

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the plaintiff's theory, and draw all reasonable inferences from those facts in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019). While detailed factual allegations are not required, the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory," Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Felicano de Melecio, 406 F. 3d 1, 6 (1st Cir. 2005)). The facts alleged must be sufficient to "state a claim to relief that is plausible on its face." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570).

"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A determination of plausibility is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 44 (quoting Iqbal, 556 U.S. at 679). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). "The plausibility standard invites a two-step pavane." A.G. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court "must determine whether the remaining factual content allows a 'reasonable

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inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224).

B. FLSA and Minimum Wage Requirements

The FLSA requires employers to pay covered employees "a minimum hourly wage that is currently set at $7.25 per hour." Capron v. Office of the AG of Mass., 944 F.3d 9, 17 (1st Cir. 2019) (citing 29 U.S.C. § 206(a)), petition for cert. filed, (U.S. Feb. 14, 2020) (No. 19-1031); see also Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012) (citing 29 U.S.C. § 206(a)). In order to state a valid claim under the FLSA, a plaintiff must allege "(1) that they were employed by [the employer]; (2) that their work involved interstate activity; and (3) that they performed work for which they were under-compensated." Pruell, 678 F.3d at 12 (citing 29 U.S.C. §§ 206(a), 207(a)(1)).


Defendants do not dispute that they employed Plaintiff or that they are engaged in interstate activity. See [ECF No. 13 at 4-5]. Instead, Defendants focus their challenge on the third element of Plaintiff's FLSA claim: whether Plaintiff performed work for which he was under-compensated. [Id. at 5].

A. Reasonable Approximation of Vehicle Expenses

1. Plaintiff's Estimated Expenses

Defendants argue that Plaintiff's failure to state his own actual vehicle expenses is fatal to his claims. [ECF No. 13 at 7 ("[I]f Plaintiff is unable to calculate his actual expenses, he cannot support that his rate ever dropped below the minimum wage.")]. Although Plaintiff did not allege his actual vehicle expenses, he is not required to provide the exact amount of his actual expenses at this stage. "Nothing in the FLSA or regulations requires proof of actual expenses; in

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fact, the regulations suggest the opposite by their allowance for employers to pay employees a 'reasonable estimate' of the employee's expenses to avoid FLSA liability." Benton v. Deli Mgmt., 396 F. Supp. 3d 1261, 1275 (N.D. Ga. 2019) (citing 29 C.F.R. § 778.217(c)).

For example, in Darrow v. WKRP Management LLC, a case involving similar claims made by a Pizza Hut delivery driver, the court found that "[t]he fact that Plaintiff's estimate [was] consistent with IRS and AAA figures, combined with Plaintiff's...

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