Tigges v. Am Pizza, Inc., CIVIL ACTION NO. 16-10136-WGY

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtYOUNG, D.J.
PartiesATILA ADOLFO TIGGES, on behalf of himself and all others similarly situated, Plaintiffs, v. AM PIZZA, INC. and HENRY ASKEW, Defendants. TYLOR REEVES, on behalf of himself and all others similarly situated, Plaintiffs, v. PMLRA PIZZA, INC. and HENRY ASKEW, Defendants.
Docket NumberCIVIL ACTION NO. 16-10474-WGY,CIVIL ACTION NO. 16-10136-WGY
Decision Date29 July 2016

ATILA ADOLFO TIGGES, on behalf of himself
and all others similarly situated, Plaintiffs,
v.
AM PIZZA, INC. and HENRY ASKEW, Defendants.


TYLOR REEVES, on behalf of himself
and all others similarly situated, Plaintiffs,
v.
PMLRA PIZZA, INC. and HENRY ASKEW, Defendants.

CIVIL ACTION NO. 16-10136-WGY
CIVIL ACTION NO. 16-10474-WGY

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 29, 2016


YOUNG, D.J.

MEMORANDUM OF DECISION

I. INTRODUCTION

These two separate but related class actions are but the most recent expressions of a long-standing dispute between certain Domino's pizza delivery drivers and their Domino's

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franchise employers. On May 23, 2016, this Court held a single status conference for both actions. Tr. Status Conference, Tigges v. AM Pizza, Inc., No. 16-10136-WGY ("Tigges"), ECF No. 33; Tr. Status Conference, Reeves v. PMLRA Pizza, Inc., No. 16-10474-WGY ("Reeves"), ECF No. 23. One was filed by named Plaintiff Atila Adolfo Tigges ("Tigges") against his former employers, AM Pizza, Inc. ("AM Pizza") and Henry Askew ("Askew") (collectively, the "Tigges Defendants"). The other was filed by named Plaintiff Tylor Reeves ("Reeves"), also against his former employers, PMLRA Pizza, Inc. ("PMLRA Pizza") and Askew, who is the president of both Domino-franchise employers (collectively, the "Reeves Defendants").

These two cases have a lot of overlap, especially in the legal arguments made.1 Accordingly, when they advance identical arguments, the Court will refer to Tigges and Reeves collectively as the "Plaintiffs." Similarly, the Tigges Defendants and the Reeves Defendants too will be referred to collectively as the "Defendants," when appropriate, so as to avoid redundancy.

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The two complaints, each a putative class action, allege that the "delivery charge" imposed on the Defendants' customers was in fact a "service charge" that the Defendants failed to pay to their delivery drivers, in violation of Massachusetts General Laws chapter 149 (the "Tips Act"), and Massachusetts General Laws chapter 151 (the "Minimum Wage Act"). Class Action Compl. ¶ 1, Tigges; Class Action Compl. ¶ 1, Reeves.

At the May status conference, before the Court were the Plaintiffs' motions for class certification and the Defendants' motions to dismiss. The Court granted Tigges's motion for certification of the class of delivery drivers employed by the Tigges Defendants that had not signed arbitration agreements, and Reeves's motion for certification for the class of delivery drivers employed by the Reeves Defendants that had signed arbitration agreements (limited by the applicable statutes of limitations). Tr. Status Conference 6, 14-18, May 23, 2016, Tigges, ECF No. 33. The Court also denied the Defendants' motions to dismiss. See id. The Reeves Defendants' motion to dismiss had an additional argument from the Tigges Defendants': that an arbitration agreement precluded Reeves from bringing a class action. The Court ruled, inter alia, that the class action waiver in the arbitration agreement signed by Reeves and other employees was unenforceable because collective action is "the very essence of labor rights" granted to employees under

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the National Labor Relations Act. Elec. Clerk's Notes, Reeves, ECF No. 22. This memorandum explains the Court's reasons for the above decisions.

A. Factual Background2

The Defendants are two Domino's franchisees that share the same president, Henry Askew. Decl. Henry Askew ¶¶ 2, 4, Tigges, ECF No. 3; Decl. Henry Askew ¶¶ 2, 4, Reeves, ECF No. 3. Both franchisees operate multiple Domino's locations in Massachusetts and have employed hundreds of delivery drivers. Decl. Henry Askew ¶¶ 6, 7, Tigges; Decl. Henry Askew ¶¶ 6, 7, Reeves.

The Tigges Defendants employed Tigges as a delivery driver between 2008 and 2013. Class Action Compl. ¶ 6, Tigges. Reeves was also a delivery driver, employed by the Reeves Defendants between 2014 and 2015. Class Action Compl. ¶ 6, Reeves. The Reeves Defendants presented some of their employees, including Reeves, with a contract under which the employees would have to bring any action against their employer through individual arbitration (unless they exercised their right to opt-out of the

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agreement). See Mem. Supp. Defs.' Mot. Dismiss Pl.'s Compl. Compel Arbitration ("Defs.' Mem. Dismiss"), Ex. 1, Ex. A, Arbitration Agreement ("Arb. Agreement"), Reeves, ECF No. 10-1.

The Defendants pay their delivery drivers a "tipped minimum wage," i.e., a wage that is lower than the regular minimum wage, but that is supplemented by tips. Class Action Compl. ¶ 6, Tigges; Class Action Compl. ¶ 6, Reeves; Decl. Henry Askew ¶¶ 9-11, Reeves. The two entities also impose a delivery charge on their customers that varies between $1.99 and $2.99. See Class Action Compl. ¶ 8, Tigges; Class Action Compl. ¶ 8, Reeves. Customers are informed about this delivery charge through disclosures on Domino's website, smartphone app, and on the pizza boxes themselves. Class Action Compl. ¶¶ 11-13, Tigges; Class Action Compl. ¶¶ 11-13, Reeves. Information about each order is recorded on Domino's PULSE system and includes: the date and time of each order, the amount of the order, the driver who made the delivery, the amount of any delivery charge and any credit card tips. Class Action Compl. ¶ 15, Tigges; Class Action Compl. ¶ 15, Reeves.

B. Litigation History

Prior to the filing of the instant putative class action lawsuits, several other pizza delivery drivers had tried their hands at virtually identical putative class actions against the Reeves Defendants and their franchiser, Domino's (collectively,

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the "Prior Defendants"), alleging violations of the Minimum Wage Act and Section 152A of the Tips Act stemming from the Prior Defendants' failure to pay their pizza delivery drivers the full amount of the "delivery charge."3

On August 8, 2013, a former Domino's-PMLRA driver, Eduardo Carpaneda ("Carpaneda"), filed the first putative class action against the Reeves Defendants and Domino's in the Massachusetts Superior Court sitting in and for the County of Middlesex. See State Court R., Class Action Compl., Carpaneda v. Domino's Pizza, Inc., 991 F.Supp.2d 270 (D. Mass. 2014) (No. 13-12313-WGY) ("Carpaneda"), ECF No. 14. The Prior Defendants removed the action to this Court and shortly after filed a motion to dismiss the complaint. Notice Removal, Carpaneda, ECF No. 1; Mot. Dismiss, Carpaneda, ECF No. 17. The Court denied the Prior Defendants' motion to dismiss in a published opinion. See Carpaneda, 991 F.Supp.2d at 270-275. During the first, individual phase of this Court's bifurcated procedure for class actions,4 the Prior Defendants served Carpaneda with an offer of judgment under Federal Rule of Civil Procedure 68 in the amount

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of $ 19,500, which he accepted.5 Agreement J., Carpaneda, ECF No. 51. Before the Court entered judgment, Carpaneda attempted to amend his complaint and substitute another pizza delivery driver, Marilia Prinholato ("Prinholato"), as named plaintiff and potential class representative. Pl.'s Mot. Am. Compl. 1, Carpaneda, ECF No. 50. The Court denied the motion and a subsequent motion for reconsideration. Elec. Order, Carpaneda, ECF No. 53; Elec. Order, Carpaneda, ECF No. 64.

On June 11, 2014, Prinholato then promptly filed a second class action complaint, this time in federal court, raising the same claims against the Prior Defendants, which she amended to add a count of retaliation on June 25, 2014.6 Class Action Compl., Prinholato v. Domino's Pizza, Inc., No. 14-12483-WGY (D. Mass. June 11, 2014) ("Prinholato"), ECF No. 1; Am. Compl., Prinholato, ECF No. 6. On November 6, 2014, the Prior Defendants made an offer of judgment to Prinholato in the amount of $46,500, which she accepted. Agreement J., Prinholato, ECF No. 23; Agreement J., Ex. 1, Notice Acceptance Offer J., Prinholato, ECF No. 23-1.

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On April 13, 2015, Edione Lisandro ("Lisandro"), another former pizza delivery driver, filed a third class action complaint, raising the same claims. Class Action Compl., Lisandro v. Domino's Pizza, Inc., No. 15-11584-WGY (D. Mass. April 13, 2015) ("Lisandro"), ECF No. 1. Apparently, the Prior Defendants were done making offers for judgment. Lisandro filed a motion for class certification, which was opposed. Mot. Certify Class, Lisandro, ECF No. 4; Opp'n Mot. Certify Class, Lisandro, ECF No. 33. Lisandro's case proceeded apace to an exemplar trial. On October 23, 2015, six months after Lisandro's original complaint was filed, the jury found for the Prior Defendants on all claims. Jury Verdict, Lisandro, ECF No. 80. Because Lisandro lost the exemplar trial, the Court dismissed his motion for class certification, as he was hardly an adequate class representative. Elec. Order, Lisandro, ECF No. 90. The Court then entered judgment against Lisandro. J., Lisandro, ECF No. 92.

C. The Instant Actions

On November 13, 2015, Tigges filed a complaint in the Massachusetts Superior Court sitting in and for the County of Middlesex. Class Action Compl., Tigges. Reeves followed with his class action complaint in the same forum on January 7, 2016. Class Action Compl., Reeves. Both complaints allege two counts, brought pursuant to Section 150 of the Tips Act, and Section 20

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of the Minimum Wage Act. See Class Action Compl. 6, Tigges; Class Action Compl. 6, Reeves. The complaints allege the same violations as discussed above, see supra Part I-B, and for the first time raise a new claim related to notice requirements under the Minimum Wage Act. Class Action Compl. 6, Tigges; Class Action Compl. 6, Reeves.

In Count I, the Plaintiffs allege that the Defendants' retention of the "delivery charge" paid by customers violated Section 152A of the Tips Act. Class Action Compl. 6, Tigges; Class Action Compl. 6, Reeves. In Count II, pursuant to Sections 1 and 7 of the Minimum Wage Act, the Plaintiffs allege that the Defendants' failure to pay their delivery drivers the "delivery...

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