THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 BERNARD WAITHAKA, et al., 10 Plaintiffs, 11 v. CASE NO. C19-1320-JCC 12 AMAZON, INC., et al., ORDER 13 Defendants.
15 This matter comes before the Court on Plaintiff Bernard Waithaka’s second motion for 16 class certification (Dkt. No. 172). Having thoroughly considered the briefing and the relevant 17 record, the Court finds oral argument unnecessary and hereby DENIES the motion for the 18 reasons explained herein. 19 I. BACKGROUND 20 Plaintiff is a delivery driver for Defendants’ Amazon Flex program. (Dkt. No. 172-1 at 21 1.) Under the program, drivers like Plaintiff deliver products from Defendants’ facilities to end 22 customers. (Dkt. No. 178-1 at 2.) These products vary from groceries to more traditional “brown 23 box” deliveries. (Id. at 2–3.) Defendants advertise timely and efficient delivery, which depends, 24 in part, on the delivery drivers here. (See Dkt. Nos. 172-7 at 2–3, 172-3 at 4.) 25 Delivery drivers use personal vehicles (with minimal requirements from Defendants). 26 (Dkt. No. 172-14 at 11.) Drivers also use a phone-based application to sign up for shifts, confirm 1 that products have been picked up, receive suggested driving routes, and confirm that products 2 have been delivered. (Dkt. Nos. 178-1 at 3, 172-14 at 9–10, 178-9 at 3.) The Terms of Service 3 (“TOS”) that govern Amazon Flex have varied since the program’s creation in 2014, (Dkt. No. 4 178-1 at 4), but two provisions relevant to the allegations here have not. First, Defendants have 5 always classified delivery drivers as independent contractors, not employees. (See, e.g., Dkt. 6 Nos. 178-1 at 7, 179-14 at 3, 179-16 at 2.) Second, pay is governed exclusively by the “Service 7 Fees” provision. (See, e.g., Dkt. Nos. 178-1 at 23, 179-14 at 3, 179-16 at 3.) The TOS specify 8 these fees are the entirety of drivers’ pay and are meant to cover their expenses. (See id.) 9 The TOS also explain the work and pay. Drivers sign up for “delivery blocks,” which are 10 the time Defendants estimate it will take to complete delivery of all products a driver picks up. 11 (Dkt. Nos. 179-16 at 2, 178-1 at 3.) For example, driver Brad Oswalt signed up for a three-hour 12 block in June 2021. (Dkt. No 178-6 at 4.) The pay for a block is established when a driver signs 13 up and is based on an algorithm that takes into account, among other factors, potential expenses 14 and the supply of drivers. (Dkt. No. 172-14 at 23–26.) A driver whose actual delivery time is 15 under the block estimate is paid the full amount. (Dkt. No. 178-1 at 3.) Oswalt completed his 16 three-hour delivery block in one hour and was still paid the $96 he signed up for. (Dkt. No. 178- 17 6 at 4) (see also Dkt. No. 179-1 at 23–24 (Plaintiff explaining he often finishes blocks early)). It 18 is undisputed that actual delivery times are usually less than the estimated blocks. (See Dkt. No. 19 178-10 at 43–44.)1 Drivers may sign up for a block a week in advance, (Dkt. No. 179-11 at 10), 20 and may cancel up to 45 minutes before a block begins. If a driver repeatedly cancels with less 21 than 45 minutes’ notice, they may be penalized or terminated for violating Defendants’ Service 22 Standards. (See, e.g., Dkt. No. 178-1 at 25, 32.) 23 A delivery block is different than a “delivery window,” the timeframe during which 24 Defendants expect drivers to deliver products. (Id. at 32.) The delivery window varies by 25 1 Drivers may request additional compensation if some “unforeseen circumstance” results in 26 more working time than the estimated block. (Dkt. No. 168-1 at 3.) 1 product: perishable groceries may have a two-hour window, while the window for consumer 2 goods in brown boxes is longer. (Dkt. Nos. 179-11 at 3–4, 178-1 at 3–4, 178-6 at 3.) Most 3 products have a longer window that simply requires delivery by 9 P.M. on the same day the 4 product is picked up. (Dkt. Nos. 178-1 at 3, 179-11 at 3.)2 It is undisputed that actual delivery 5 times are usually within the acceptable window. (See Dkt. No. 178-10 at 43.) Again, drivers are 6 not paid based on windows; they are paid based on blocks. Defendants paid Oswalt $96 for his 7 three-hour block regardless of when he actually delivered the last product. (See Dkt. No. 178-6 at 8 4.) Drivers’ “Delivery Quality” and “Standing,” however, are tied to the window. (Dkt. Nos. 9 178-1 at 32, 172-5 at 9–10.) Drivers who repeatedly fail to meet the expectation—usually, to 10 deliver all products by 9 P.M.—may be terminated, and Defendants retain discretion over all 11 Service Standard violations. (See Dkt. No. 178-1 at 25, 32.) 12 Both parties submit that the length of delivery blocks and windows create flexibility. (See 13 Dkt. Nos. 172 at 19–20, 178 at 13.) They disagree on what that means for Plaintiff’s employment 14 claims. According to Plaintiff, drivers are unpaid for some working time during the delivery 15 window but outside of the delivery block. (Dkt. No. 172 at 19.) He submits working time can 16 and should be measured from pickup to delivery. (Id.) But according to Defendants, drivers 17 spend time between pickup and delivery performing personal tasks or working for other 18 companies, not for Defendants. (Dkt. No. 178 at 33–34.) They submit that the time between 19 pickup and delivery does not represent drivers’ working hours because of this unaccounted “gap 20 time.” (Id.) 21 Plaintiff originally brought suit in Massachusetts state court in 2018 before the case was 22 removed and then transferred to this District. (Dkt. Nos. 1 at 1, 1-1 at 3, 59 at 22.) The complaint 23 brings three employment claims under state law. Count I alleges that Defendants misclassified 24 2 Prime Now and Whole Foods products require a tighter window, (Dkt. No. 179-11 at 4), though 25 usually pay better. (See Dkt. No. 178-7 at 2.) Amazon Logistics windows for brown box deliveries are open until 9 P.M., (Dkt. No. 179-11 at 3), and constitute the majority of the 26 deliveries drivers make. (Dkt. No. 178-10 at 18.) 1 Plaintiff as an independent contractor. (Dkt. No. 1-1 at 8) (citing Mass. Gen. Laws ch. 149, 2 § 148B). Count II alleges that Plaintiff is owed unpaid business expenses under the 3 Massachusetts Wage Act. (Dkt. No. 1-1 at 9) (citing Mass. Gen. Laws ch. 149, § 148). These 4 expenses include the cost of his phone to use the Amazon Flex application and the mileage on 5 his personal vehicle. (Dkt. No. 1-1 at 3.) Count III alleges that Defendants did not pay Plaintiff 6 the state minimum wage under the Massachusetts Minimum Wage Law. (Id. at 9) (citing Mass. 7 Gen. Laws ch. 151, §§ 1, 7). 8 This case has been stayed pending appeals in various others, including one before this 9 Court. (Dkt. Nos. 91 at 16, 153 at 3.) The Court lifted the stay earlier this year, (Dkt. No. 166 at 10 1), and Plaintiff moved for class certification under Federal Rule of Civil Procedure 23. (Dkt. 11 No. 172 at 9.)3 Plaintiff also requests that he and his counsel be appointed class representatives. 12 (Id. at 21.) Defendants oppose certification, primarily on the grounds that there is insufficient 13 commonality between class members and that individual issues will predominate over common 14 ones. (Dkt. No. 178 at 17–35.) They also contest the validity of Plaintiff’s business expense 15 claim under the Wage Act. (Id. at 28.) 16 II. DISCUSSION 17 To certify a class under Rule 23, the Court must consider whether a class action is an 18 appropriate vehicle to redress the underlying claims. It must conduct a “rigorous analysis” of the 19 Plaintiff’s proposed class, the evidence that will be offered on the merits, and the individual 20 issues that could derail collective litigation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 21 (2011). However, these considerations all require some inspection of the claims and their merits. 22 Id. If the Court seeks to assess whether “common answers” will resolve the litigation, id. at 350, 23 then it must be confident that the answers to the questions posed by the claims are legally valid. 24 25 3 Defendants did not renew a motion to compel arbitration, (see Dkt. No. 171), nor has there 26 been a motion to dismiss. 1 To understand the merits of Plaintiff’s state law claims, the Court therefore reviews the standards 2 for the claims before turning to class certification. 3 A. Legal Standard for Massachusetts Employment Claims 4 1. Relationship Between the Claims 5 Plaintiff’s misclassification, Wage Act, and Minimum Wage Law claims are 6 interconnected. With respect to Plaintiff’s misclassification claim, under Massachusetts law, a 7 worker is presumed an employee—not an independent contractor—unless three factors are met 8 (the “ABC test”). Mass. Gen. Laws ch. 149, § 148B(a). First (A), the employer must lack control 9 over the work itself, both in contract and in fact. Id. § 148B(a)(1). Second (B), the work must be 10 outside of the employer’s usual course of business. Id. § 148B(a)(2). And third (C), the work 11 must be the sort that the worker usually performs as their trade. Id. § 148B(a)(3). It is a 12 defendant employer’s burden to show that all three prongs of the ABC test are met to defeat a 13 misclassification claim. Chambers v. RDI Logistics, Inc., 65 N.E.3d 1, 8 (Mass. 2016). 14 Conversely, a plaintiff employee need only show that one factor is not met. Ouadani v. Dynamex 15 Operations E., LLC, 405 F. Supp. 3d 149, 165 (D. Mass. 2019). Plaintiff here claims (in Count I) 16 that he and his proposed class can demonstrate that all three factors are absent but focuses on 17 prong B. (Dkt. No. 172 at 10–11.)4 In other words, he argues that Amazon Flex drivers complete 18 4 Defendants argue that Massachusetts’s prong B is preempted in this case by the Federal 19 Aviation Administration Authorization Act (“FAAAA”), citing First Circuit and Massachusetts 20 case law. (Dkt. No. 178 at 18) (citing Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429 (1st Cir. 2016), Chambers, 65 N.E.3d 1). Those courts held that prong B was preempted 21 because of significant, although indirect, effects on motor carriers’ operations, which frequently rely on independent contractors. Schwann, 813 F.3d at 429, Chambers, 65 N.E.3d at 9. Plaintiff 22 does not dispute that Defendants are motor carriers for the purposes of this litigation, but he submits that preemption is a matter of federal law and that this Court is bound by contrary Ninth 23 Circuit precedent. (Dkt. No. 181 at 7–9) (citing Cal. Trucking Ass’n v. Bonta, 996 F.3d 644 (9th 24 Cir. 2021)). The Court is more persuaded by Plaintiff’s argument. Preemption is always a federal question. 25 Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 388 (1986); see also Insolvency 26 Srvs. Grp., Inc. v. Fed. Express Corp, 2014 WL 12613262, slip op. at 2 (C.D. Cal. 2014) 1 the crucial last-mile in the usual course of Amazon’s order, fulfillment, and delivery business. 2 (Dkt. No. 1-1 at 6–7.) 3 But even if Plaintiff could show that prong B is absent, that showing alone would not 4 establish liability. Massachusetts General Law § 150—which provides a private cause of action 5 for misclassification—also requires the misclassified employee to suffer a harm (“damages”) to 6 recover. Mass. Gen. Laws ch. 149, § 150. In the alternative, § 148B provides a cause of action 7 for misclassification combined with another employment violation. Id. § 148B(d). Thus, Plaintiff 8 and his proposed class must be able to establish liability on either (or both) his Wage Act (Count 9 II) or Minimum Wage Law (Count III) claims to succeed on his misclassification claim (Count I) 10 in this litigation. See Hoffman v. Thras.io Inc., 538 F. Supp. 3d 196, 202 (D. Mass. 2021). 11 The Minimum Wage Law sets a floor for wages. Mass. Gen. Laws ch. 151, § 1. 12 Currently, the statute sets that minimum at $15 per hour, under which a wage is presumed 13 “oppressive and unreasonable.” Id. Thus, the minimum wage requirement is a function of 14 payment and time. The statute itself does not define what constitutes “wages.” See generally id. 15 § 2. The Commissioner of the Department of Labor Standards is tasked with setting regulations 16 to enforce and define the state minimum wage. Id. § 3(4). In terms of time, compensable hours 17 do not include commute time, 454 Mass. Code Regs. 27.04(4)(a), but obviously include 18 “working time:” time spent on duty or at a location prescribed by their employer. Id. at 27.02. It 19 (holding that a district court may look to state courts on state law questions, but must follow 20 Ninth Circuit precedent on preemption questions). A transferee court like the Court here must 21 apply the federal law of the circuit in which it sits. Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). 22 In Cal. Trucking Ass’n, the Ninth Circuit found that the FAAAA does not preempt prong B of the ABC test. 996 F.3d at 658–63 (explaining that generally applicable laws may significantly 23 impact motor carriers, but that alone does not mean they “relate to” the “rates, routes, or 24 services” of motor carriers and their consumers). In so finding, it noted that the Massachusetts ABC test is identical to the California ABC test at issue there. Id. at 663. Therefore, under this 25 circuit’s precedent, prong B is not preempted by the FAAAA, and Plaintiff may establish that delivery drivers like himself were misclassified because they worked within Defendants’ usual 26 course of business. 1 does not, however, include on-call time where an employee is free to be where and do what they 2 want. Dagan v. Jewish Cmty. Housing for Elderly, 699 N.E.2d 840, 847 (Mass. App. Ct. 1998). 3 Employers may not contract around the minimum wage requirement. Mass. Gen. Laws ch. 151, 4 § 20. If an employee’s payment divided by their total compensable hours is less than $15 per 5 hour, then the employer is liable under the Minimum Wage Law. 6 The Massachusetts Wage Act, in contrast, ensures that workers are paid their “wages 7 earned.” Mass. Gen. Laws ch. 149, § 148. Rather than set a wage floor like the Minimum Wage 8 Law, it prohibits withholding payments from or delaying payments to employees. See Awuah v. 9 Coverall N. Am., 952 N.E.2d 890, 895 (Mass. 2011). This statute defines “wages” to include 10 commissions “definitely determined” and vacation pay “under an oral or written agreement.” 11 Mass. Gen. Laws. Ch. 149, § 148. Courts are loath to “add language to [the Wage Act] where the 12 Legislature itself has not done so.” Tze-Kit Mui v. Mass. Port Auth., 89 N.E.3d 460, 462 (Mass. 13 2018) (listing cases and declining to expand the meaning of wages to include sick pay). But they 14 have strictly followed the statute’s prohibition on “special contracts” that try to exempt 15 employers from the Wage Act’s requirements. See Camara v. Att’y Gen., 941 N.E.2d 1118, 1122 16 (Mass. 2011) (noting Wage Act’s purpose to protect employees’ right to wages). An otherwise 17 valid employment agreement may not reduce the wages an employee has earned. Awuah, 952 18 N.E.2d at 892. Still, the Wage Act’s protections only extend to wages earned, not employment 19 agreements about other payments. Fraelick v. PerkettPR, Inc., 989 N.E.2d 517, 523–24 (Mass. 20 App. Ct. 2013). 21 2. Plaintiff’s Wage Act Claim 22 Plaintiff’s Wage Act claim (Count II) is premised on Defendants’ failure to compensate 23 him for business expenses such as his phone and vehicle (even though Defendants’ TOS specify 24 that the Service Fees omit expenses). But Plaintiff’s claim suffers a fatal defect—it presumes that 25 business expenses constitute wages under the Wage Act when no binding or persuasive authority 26 supports this presumption. That is, whether or not delivery drivers were deprived of business 1 expenses simply has no bearing on Wage Act liability because there is no authority that stands 2 for the proposition that business expenses constitute wages.5 3 As a matter of statutory law, the text of the Wage Act defines some benefits as “wages,” 4 but not expenses. See Mass. Gen. Laws 149, § 148. Plaintiff cites a single Massachusetts 5 administrative regulation that requires employers to pay “transportation expenses” during work 6 hours. (Dkt. No. 183 at 3) (citing 454 Mass. Code Regs. 27.04(4)(d)). But, even if this regulation 7 could be stretched to cover all business expenses, it was passed pursuant to the Commissioner’s 8 power to set a pay floor under the Minimum Wage Law, not the Wage Act’s prohibition on 9 taking what is earned. See 454 Mass. Code Regs. 27.01(1). In other words, employers must pay 10 Massachusetts employees a minimum wage that accounts for transportation expenses, but that 11 does not mean failure to do so deprives them of “wages earned.” Cf. Escorbor v. Helping Hands 12 Co., 2017 WL 4872657, slip op. at 2 (Mass. Super. 2017) (analyzing complaint for travel 13 expenses under the Minimum Wage Law). Thus, while the Minimum Wage regulation is 14 compatible with the Wage Act, see Garcia v. Right at Home, Inc., 2016 WL 3144372, slip op. at 15 4 (Mass. Super. 2016), the regulation itself does not shed any light on what properly constitutes 16 “wages earned” and whether failure to pay business expenses is a violation of the Wage Act. 17 As a matter of case law, the precedents to which Plaintiff cite are inapposite. His motion 18 includes several California cases where a state statute specifically requires employers to pay 19 business expenses. (Dkt. No. 172 at 18) (citing O’Connor v. Uber Techs., Inc., 311 F.R.D. 547 20 (N.D. Cal. 2015), James v. Uber Techs., Inc., 338 F.R.D. 123 (N.D. Cal. 2021)). But the 21 Massachusetts precedent he cites feature deductions from payments that employers previously 22 23
24 5 Although Defendants pointed this out in their briefing, (Dkt. No. 178 at 28), Plaintiff’s reply was unresponsive. (See generally Dkt. No. 181.) In the interest of understanding the common 25 questions and answers that may resolve this litigation, the Court ordered and received supplemental briefing as to whether the Wage Act requires employers to pay employee business 26 expenses. (Dkt. Nos. 182, 183, 184, 185.) 1 agreed to, not omissions that employers like Defendants disclaimed in their TOS. (See Dkt. Nos. 2 172 at 17 n.5, 183 at 3.)6 3 The highest state authority Plaintiff cites is Awuah, where the Supreme Judicial Court 4 observed that the term “earned” is not defined in the Wage Act. 952 N.E.2d at 896. In trying to 5 define the term, the court noted that an employment agreement is relevant to what is “earned,” 6 but the statute also prohibits “special contracts.” Id. at 896–97. The Supreme Judicial Court 7 concluded that contractual arrangements requiring employees to pay workers’ compensation and 8 franchise fees were void as a matter of public policy. Id. at 899–901. Here, there is no such 9 public policy argument, on statutory or other grounds, that agreements to use phones or vehicles 10 are otherwise invalid.7 In fact, in the Awuah litigation, claims for business equipment deductions 11 akin to those here were rejected under the Wage Act. Awuah v. Coverall N. Am., Inc., 740 F. 12 Supp. 2d 240, 243–44 (D. Mass. 2010). Other Wage Act cases feature reimbursements that an 13 employer expressly agreed to pay. See Furtado v. Republic Parking Sys., LLC, 2020 WL 996849, 14 slip op. at 1 (D. Mass. 2020) (employment contract to reimburse travel expenses), Fraelick, 989 15 N.E.2d at 524 (“the otherwise permissible expense reimbursement arrangement . . . was 16 abandoned and replaced with a policy and practice that required the employee . . . to advance, 17 indefinitely, expenses for the employer’s benefit”) (emphasis added), Serebrennikov v. Proxet 18
19 6 See, e.g., Camara v. Att’y Gen., 941 N.E. 2d 1118, 1119 (Mass. 2011) (deduction from wages for damages caused by employee), Awuah v. Coverall N. Am., Inc., 952 N.E. 2d 890, 897–901 20 (Mass. 2011) (various deductions from “wages earned”), DaSilva v. Border Transfer of MA, Inc., 21 296 F. Supp. 3d 389, 396 (D. Mass. 2017) (deductions from pay for uniforms and damage claims), Martins v. 3PD, Inc., 2013 WL 1230454, slip op. at 1 (D. Mass. 2013) (“Under 22 Massachusetts wage law, an employer may not deduct certain expenses from its payment to employees”) (emphasis added). 23 7 Similar considerations permeate insurance cases that Plaintiff cites, which focus on the risk that 24 employees are forced to bear on behalf of their employers without any other benefit. See DaSilva, 296 F. Supp. 3d at 396 (workers’ compensation and cargo insurance), Martins, 2013 25 WL 1230454 at 7–8 (deductions for insurance and repair to employer vehicles). These concerns are not relevant here, either: a personal phone or vehicle has present value to the employee 26 distinct from their engagement with Amazon Flex. 1 Grp. LLC, 2024 WL 1375971, slip op. at 1 (D. Mass. 2024) (citing Dkt. No. 28-1 at 1) 2 (considering business expenses incurred and unreimbursed pursuant to a “Consulting 3 Agreement”).8 4 Plaintiff has not cited, nor has the Court identified, any case where a worker’s contract 5 disclaimed business expenses and a Massachusetts court required the employer to pay them. This 6 Court is loath to take that leap in this class action litigation due to the Wage Act’s language, the 7 complementary role of the Minimum Wage Law, and contrary precedent. The Wage Act protects 8 against reducing what an employer has committed to pay or shifting some employer costs against 9 public policy (like workers’ compensation insurance). It does not prevent many valid 10 compensation agreements. Grogan v. All My Sons Bus. Dev. LLC, 552 F. Supp. 3d 142, 145–46 11 (D. Mass. 2021) (“[t]he purpose of the Wage Act is to prevent the unreasonable detention of 12 wages, not to prescribe any particular method by which employees must be paid their earned 13 wages”) (cleaned up). Therefore, it is not a violation of the Wage Act for an employer to refuse 14 compensation for generic business expenses like those alleged here. 15 Having considered the parties’ supplemental briefing, the Court DISMISSES Plaintiff’s 16 Wage Act claim (Count II), without prejudice, for failure to state a viable claim. See Omar v. 17 Sea-Land Srv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Wong v. Bell, 642 F.2d 359, 18 361–62 (court may dismiss a claim sua sponte), 5C Charles Alan Wright & Arthur R. Miller,
19 8 Plaintiff’s most on-point case is an unreported trial court decision that considered claims for 20 unreimbursed travel expenses, apparently in the absence of a prior agreement. Garcia, 2016 WL 3144372 at 1–4; see also Ohio Sec. Ins. Co. v. Axis Ins. Co., 2017 WL 1710987, slip op. at 10 21 (explaining the low weight of intermediate and trial court cases). The employee there claimed expenses, citing the same Massachusetts minimum wage regulations as Plaintiffs do. Garcia, 22 2016 WL 3144372 at 3. But plaintiff in Garcia brought claims for these expenses under both the Wage Act and the Minimum Wage Law. See id.; see also Garcia v. Right at Home, Inc., Case 23 No. SUCV2015-00808, Dkt. No. 28 at 11–12 (Mass. Super. 2016) (Amended Complaint, Count 24 II). Plaintiffs here bring their claim for expenses exclusively under the Wage Act. (Dkt. No. 1-1 at 9.) And the court in Garcia only considered the Wage Act because defendant employer argued 25 that the 27.04(4) regulations were incompatible with the Wage Act and therefore invalid. Garcia, 2016 WL 3144372 at 4. Not so here. The Garcia court did not consider whether the Wage Act 26 alone supports a claim for business expenses under Massachusetts law. 1 Federal Practice & Procedure § 1657 (4th ed. 2013) (“the district judge on his or her own 2 initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as 3 long as the procedure employed is fair to the parties”). 4 In the remaining counts, Plaintiff claims that he was misclassified (Count I) and was paid 5 less than the state minimum for the hours that he worked (Count III). As previously explained, 6 Plaintiff must prevail on Count III in order to prevail on Count I. To certify these claims for class 7 treatment, Plaintiff must meet the requirements of Rule 23. 8 B. Class Certification under Rule 23 9 1. Legal Standard 10 A plaintiff seeking class certification on their claim(s) must satisfy the requirements of 11 Rule 23(a) and the requirements of at least one of the categories under Rule 23(b). Dukes, 564 12 U.S. at 345–46. The plaintiff “bears the burden of proving by a preponderance of the evidence 13 that all requirements for class certification are met.” Byorth v. USAA Cas. Ins. Co., 333 F.R.D. 14 519, 525 (D. Mont. 2019). 15 Plaintiff proposes the following class: “[A]ll Amazon Flex delivery drivers who have 16 worked in the Commonwealth of Massachusetts at any time since August 23, 2014.” (Dkt. No. 17 172 at 28.) Defendants argue that the inquiry necessary to establish liability to each class 18 member will be so varied and particular as to preclude certification. (Dkt. No. 178 at 17–35.) 19 Their opposition focuses on commonality and predominance. (Id.) In determining whether 20 Plaintiff has carried his burden for certification, the Court must conduct a “rigorous analysis” on 21 each requirement. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). This inquiry may 22 “entail some overlap with the merits of the plaintiff’s underlying claim.” Ellis v. Costco 23 Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). The Rule 23 requirements are necessary 24 conditions for certification; the ultimate decision is within the Court’s discretion. Fed. R. Civ. P. 25 23 (“may sue on behalf of all members . . . only if . . .”) (emphases added); see also Vinole v. 26 Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (reviewing for abuse of 1 discretion). 2 2. Rule 23(a) Requirements 3 Rule 23(a) requires a showing that (1) the class is so numerous that joinder is 4 impracticable (“numerosity”); (2) there are common questions of law or fact to the class 5 (“commonality”); (3) the plaintiff’s claims are typical of those in the class (“typicality”); and (4) 6 the representatives will fairly and adequately protect the interests of the absent class members 7 (“adequacy”). Fed. R. Civ. P. 23(a). These requirements are meant to protect the due process 8 rights of plaintiffs as well as defendants to litigate their claims and defenses. See Dukes, 564 U.S. 9 at 348, 367 (citing Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). 10 a. Numerosity 11 Numerosity is satisfied where joinder is impracticable. Fed. R. Civ. P. 23(a)(1). 12 While the inquiry is fact-dependent, “in general, courts find the numerosity requirement satisfied 13 when a class includes at least 40 members.” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 14 2010). Here, it is undisputed that there are thousands of Amazon Flex delivery drivers who have 15 worked for Defendants in Massachusetts during the relevant period. (See Dkt. Nos. 172 at 16, 16 178 at 10.) Defendants’ submissions confirm that fact. (See Dkt. No. 178-10 at 5.) Therefore, 17 numerosity is satisfied. 18 b. Commonality 19 Defendants submit, however, that the size of the class creates disparity between the 20 factual and legal issues presented. (Dkt. No. 178 at 116–17.) Commonality under Rule 23(a)(2) 21 requires that the claims depend upon a “common contention . . . that determination of its truth or 22 falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” 23 Dukes, 564 U.S. at 350 (emphasis added). The key inquiry is not whether a plaintiff’s claims 24 have raised common questions, but “whether class treatment will ‘generate common answers apt 25 to drive the resolution of the litigation.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 26 (9th Cir. 2013) (quoting Dukes, 564 U.S. at 350) (emphasis in original). It is Plaintiff’s burden 1 not only to pose the questions but convince the Court that the evidence for their common 2 answers will resolve the litigation. The Court must assess the factual and legal contentions 3 presented by each claim. 4 The central question posed by Plaintiff’s first claim is whether Defendants misclassified 5 Amazon Flex delivery drivers as independent contractors rather than employees. There are 6 peripheral factual questions that are common and relevant, such as whether class members are 7 employed in Massachusetts. Defendant’s business records seem sufficient to answer such 8 questions. (See Dkt. No. 178-10 at 17.) But the primary legal answer that Plaintiff says will 9 establish liability is that delivery drivers like him are employees under prong B of the ABC test. 10 (Dkt. Nos. 172 at 16–17, 181 at 9.) In other words, drivers are employees because they work 11 within Defendants’ usual course of business. Plaintiff has already put forward common evidence 12 of drivers’ classification under the TOS, Defendants’ course of business, as well as Defendants’ 13 internal and external communications about that business. See supra Part I. While Defendants 14 engage in a sprawling trade that provides a host of products, that breadth does not exclude 15 delivery to end customers—the critical last-mile—from their course of business. Plaintiff 16 proposes a valid and common answer apt to resolve the misclassification claim for the class. 17 Defendants are incorrect that prong B is preempted here, see supra Part II(A)(1) n.4, and the 18 Court is not persuaded at this stage that delivery services are outside their usual course of 19 business. If anything, that is a common factual question on the merits of Plaintiff’s 20 misclassification claim unsuitable for the class certification stage.9 21 But a common answer on the misclassification claim is not apt to resolve this litigation. 22 See Dukes, 564 U.S. at 350 Plaintiff must also establish a common contention as to his business
23 9 Plaintiff also argues that he can establish liability under prong A (contractual or factual 24 control). (Dkt. No. 181 at 9–11.) While it appears that Defendants’ individual control over drivers’ routes and deliveries presents highly individualized questions, see Magalhaes v. Lowe’s 25 Home Ctrs., Inc., 2014 WL 907675, slip op. at 4–5 (D. Mass 2014), the common TOS may permit this answer, too. The Court is less convinced that there is common evidence that would 26 establish each class member’s individual trade (under prong C). 1 expense or minimum wage claim. However, as rigorously analyzed above, his business expense 2 claim is not cognizable under the Massachusetts Wage Act. See supra Part II(A)(2). The Court 3 need not expend judicial resources, let alone certify a class, on an invalid claim. Cf. Sanders v. 4 Apple, Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009) (court may avoid “expenditures of time 5 and money that must arise from litigating spurious issues”), Dukes, 564 U.S. at 357 (proposed 6 common answer—that employer gave discretion to supervisors—would not establish defendant’s 7 liability for discrimination against employees). 8 Satisfaction of the commonality requirement thus hinges on Plaintiff’s third claim. The 9 common question there is whether delivery drivers received the Massachusetts minimum wage. 10 It can be answered by comparing the payments drivers received with the minimum they should 11 have received based on their total hours worked. The numerator (the pay drivers received) is not 12 in dispute here; the denominator (the hours they worked) is. (See Dkt. No. 178 at 33.) Plaintiff 13 proposes to establish total hours on a class-wide basis using Defendants’ delivery records. (See 14 Dkt. No. 172 at 19.) They submit that total hours worked can be calculated by the difference 15 between when a driver picks products up and when they deliver them. (Id.) The trouble with this 16 answer is that, while measurable, it assumes that each driver was working for Defendants during 17 that entire timeframe. In order to establish liability under the Minimum Wage Law, Plaintiff 18 must show hours when they were, in fact, working for their employer. And to satisfy the 19 commonality requirement, Plaintiff must show that each class member worked for the employer 20 during the proposed timeframe. Here, Plaintiff’s proposed working window is too wide open. 21 Defendants have submitted uncontroverted evidence that drivers are permitted to make 22 deliveries outside of their delivery blocks. (Dkt. Nos. 178-1 at 3, 179-11 at 3.) Most deliveries 23 can be made any time before 9 P.M. (Id.) Therefore, an Amazon Flex driver could sign up for a 24 three-hour block, pick up products at 9 A.M., and deliver the last at 9 P.M. without running afoul 25 of Defendants’ Quality and Standing policies. Under Plaintiff’s proposed class evidence, that 26 driver would have worked 12 hours. But Defendants have shown that the program’s flexibility 1 leads to “gap time” that multiple drivers have used for their own purposes—not delivering 2 products for Defendants. (See Dkt. No. 178-10 at 41–51.) Plaintiff Waithaka used his gap time, 3 for example, to perform gig work for other companies like Uber. (Dkt. No. 179-1 at 25.) He was 4 not “on duty” or at a “prescribed work site” during those times. See 454 Mass. Code Regs. 27.02. 5 Defendants only require him to deliver packages at some point before 9 P.M. Cf. Lawson v. 6 GrubHub, 665 F. Supp. 3d 1108, 1127–30 (N.D. Cal 2023) (finding time spent “Available” to 7 employer in a given area was compensable working time). And if on-call time generally does not 8 count toward hours worked for the purposes of the Minimum Wage Law, see Dagan, 699 N.E.2d 9 at 847, surely time spent by an employee for other employers does not count, either. 10 Plaintiff’s proposed definition of working time would also pervert delivery blocks as 11 ascribed in the TOS, to which both parties agreed. Drivers sign up for these shifts knowing the 12 estimated time it will take and the pay they will receive; Defendants pay them that amount 13 regardless of how long it takes (usually less). Plaintiff cannot now, through litigation, force that 14 window open and take advantage of the flexibility he chose. And much less through a class 15 action, where common evidence must establish common liability. Plaintiff tries to dismiss the 16 concern about gap time in a flippant footnote, saying that Defendants “cannot seriously dispute” 17 the proposed pickup-to-delivery methodology. (Dkt. No. 181 at 15.) But they do, and Plaintiff 18 does not seriously respond. (See generally Dkt. No. 181.) Therefore, the Court finds that pickup- 19 to-delivery does not establish liability for the “actual time it took drivers to deliver all of their 20 assigned packages,” (Dkt. No. 172 at 19), and cannot form the factual basis of commonality for 21 Plaintiff’s alleged minimum wage class action claim. Plaintiff offers no alternative to satisfy his 22 burden and the Court can only assume that individual methods would be necessary to assess how 23 drivers spent their gap time. 24 While Plaintiff has posed common questions of fact and law on his misclassification 25 claim, the answers these will generate nevertheless fail to resolve this litigation because there are 26 insufficient common answers on his wage claim (upon which Plaintiff’s misclassification claim 1 necessarily depends). Therefore, Plaintiff has not satisfied commonality. 2 c. Typicality 3 Plaintiff must also show that his claims are typical of the proposed class. Fed. R. Civ. P. 4 23(a)(3). “The test of typicality is whether other members have the same or similar injury, 5 whether the action is based on conduct not unique to the named plaintiffs, and whether other 6 class members have been injured by the same course of conduct.” Ellis, 657 F.3d at 984. The 7 commonality and typicality inquiries, which “tend to merge,” both serve as “guideposts for 8 determining whether under the particular circumstances maintenance of a class action is 9 economical and whether the named plaintiff’s claim and the class claims are so interrelated that 10 the interests of the class members will be fairly and adequately protected in their absence.” 11 Dukes, 564 U.S. at 349 n.5 (internal quotation omitted). Ultimately, representative class claims 12 are typical if they are “reasonably co-extensive with those of absent class members; they need 13 not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). 14 While Plaintiff’s misclassification claim may be typical for delivery drivers, his 15 minimum wage claim runs into similar issues with typicality as it does commonality. It is unclear 16 how typical it is for delivery drivers to take on other gig work like Plaintiff did on some days he 17 worked for Defendants. This litigation could become bogged down in a factual morass 18 accounting for Plaintiff’s working time that is not co-extensive with other class members. (See 19 Dkt. No. 178 at 36.) Conversely, other drivers may regularly use the time between first pickup 20 and last delivery for personal errands that Plaintiff does not. Though it poses a lower barrier to 21 certification than that of commonality, the Court also expresses reservations about the typicality 22 of Plaintiff’s claims. 23 d. Adequacy of Representation 24 Finally, Rule 23(a)(4) requires that the named plaintiff and class counsel “fairly and 25 adequately” protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To determine whether said 26 individuals will adequately represent a class, the Court must examine (1) whether the named 1 plaintiff and his counsel have any conflicts of interest with other class members; and (2) whether 2 the named plaintiff and his counsel will prosecute the action vigorously on behalf of the class. 3 Ellis, 657 F.3d at 985. 4 The Court is less concerned here about Plaintiff’s or their counsel’s representation of 5 other delivery drivers. No conflicts of interest have been raised and counsel has sufficient 6 expertise with class actions to prosecute the claims. (See Dkt. No. 172-2 at 3–5.) Defendants 7 raise credibility issues with named Plaintiff, (Dkt. No. 178 at 36), but these are not as relevant to 8 his prosecution of this case. Therefore, the Court finds that Plaintiff would be an adequate class 9 representative. 10 3. Rule 23(b)(3) Requirements 11 Plaintiff seeks certification under Rule 23(b)(3), (see Dkt. No. 172 at 11), which requires 12 the Court to additionally find that the common questions of law or fact “predominate over any 13 questions affecting only individual members” and that the proposed class action “is superior to 14 other available methods.” Fed. R. Civ. P. 23(b)(3). These requirements promote sound judicial 15 administration by assessing the efficiency and manageability of the litigation. 16 a. Predominance 17 In addition to the problems Plaintiff encounters under Rule 23(a), Plaintiff has issues 18 satisfying the conditions of Rule 23(b)(3). Certification under Rule 23(b)(3) is only appropriate 19 “whenever the actual interests of the parties can be served best by settling their differences in a 20 single action.” Hanlon, 150 F.3d at 1022 (quoting 7A Charles Alan Wright, Arthur R. Miller & 21 Mary Kay Kane, Federal Practice & Procedure § 1777 (2d ed. 1986)). 22 With these additional interests at stake, predominance is a more stringent standard than 23 commonality. The predominance inquiry “tests whether proposed classes are sufficiently 24 cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 25 591, 623 (1997). This inquiry presumes the existence of common factual or legal issues and 26 instead “focuses on the relationship between the common and individual issues.” Hanlon, 150 1 F.3d at 1023. “When common questions present a significant aspect of the case and they can be 2 resolved for all members of the class in a single adjudication, there is a clear justification for 3 handling the dispute on a representative rather than on an individual basis.” Id. Litigation that 4 depends on individual testimony to establish individual liability is unlikely appropriate for class- 5 wide resolution. See Bowerman v. Field Asset Srvs., Inc., 60 F.4th 459, 469 (9th Cir. 2023). 6 The common misclassification issues here on Count I are susceptible to classwide 7 resolution. Individual issues under prongs A and C of the ABC test are unlikely to be disputed. 8 Plaintiff has clearly indicated his preference to litigate on prong B, which other courts have 9 found amenable to class treatment because the common evidence pertains to a single defendant 10 employer rather than numerous plaintiff employees. See, e.g., Costello v. BeavEx, Inc., 810 F.3d 11 1045, 1059–60 (7th Cir. 2016). Here, Defendants employ all Amazon Flex delivery drivers in 12 Massachusetts under TOS common for the purposes of this litigation. (See, e.g., Dkt. Nos. 178-1 13 at 7, 179-14 at 3, 179-16). Therefore, the few individual issues are insignificant compared to the 14 common issue: whether the relevant deliveries are within Defendants’ usual course of business. 15 The commonality issues with Plaintiff’s business expense and minimum wage claims, on 16 the other hand, are compounded by the predominance requirement. Even assuming that Plaintiff 17 has an actionable Wage Act claim for his phone and vehicle (he does not, see supra 18 Part II(A)(2)), individual issues predominate on Count II. For one, the amount each class 19 member used their phone or vehicle at work will vary because of the drivers’ flexibility to do 20 what they want and go where they please during gap times. For another, the variety of possible 21 makes, models, and vintages across both phones and vehicles is substantial under Defendants’ 22 minimal requirements. (See Dkt. Nos. 172-14 at 11, 178-10 at 30–33.) Defendants have the right 23 to contest liability as to each class member, which would lead to potentially thousands of mini- 24 trials on liability and damages. See Bowerman, 60 F.4th at 470. 25 On Count III, the gap time issue raises individual questions as to liability for minimum 26 wages. Each of the thousands of class members could have worked for other companies between 1 the time they first picked up packages and last delivered them. That poses thousands of different 2 questions, each one of which would diminish some or all of Defendants’ liability. And each may 3 significantly delay the valid claims of other class members. As a matter of sound judicial 4 administration, the Court is not inclined to certify such an incohesive class. And Rule 23 does 5 not permit it. “In light of the complexity of the individualized questions and the absence of any 6 representative evidence introduced to fill the class members’ evidentiary gap, the individual 7 issues predominate over the common questions in this case.” Bowerman, 60 F.4th at 471. 8 b. Superiority 9 Finally, Rule 23(b)(3) requires the Court to find that a “class action is superior to other 10 available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 11 23(b)(3). The Court considers (1) the interest of individuals within the class in controlling their 12 own litigation; (2) the extent and nature of any pending litigation commenced by or against the 13 class involving the same issues; (3) the convenience and desirability of concentrating the 14 litigation in a particular forum; and (4) the manageability of the class action. See Fed. R. Civ. P. 15 23(b)(3)(A)–(D); Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). This 16 analysis must “focus on the efficiency and economy elements of the class action so that cases 17 allowed under subdivision (b)(3) are those that can be adjudicated most profitably on a 18 representative basis.” Id. 19 As the foregoing analysis lays bare, Plaintiff has proposed a class that is neither fair to 20 litigants nor efficient for the Court. While he may prefer class-wide litigation, it is not only his 21 rights the Court must consider. Defendants’ right to litigate their defenses could be unfairly 22 hindered by lumping drivers together who took advantage of the program’s flexibility in a 23 variety of ways. Otherwise, the Court would be forced to consider an unmanageable amount of 24 evidence on each potential class member. Therefore, the Court finds that the class proposed here 25 is not a superior method for litigation. 26 1 III. CONCLUSION 2 Plaintiff’s proposed class does not meet the commonality, predominance, and superiority 3 requirements of Rule 23. For the foregoing reasons, the Court DENIES Plaintiffs’ motion for 4 class certification (Dkt. No. 172) and DISMISSES Plaintiff’s Wage Act claim (Count II) without 5 prejudice. 6 7 DATED this 31st day of December 2024. A 8 9 10 John C. Coughenour 11 UNITED STATES DISTRICT JUDGE
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