The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HORACE CLAIBORNE, SONJIA )
MONIQUE BOWLIN, TYSHAWN )
WALKER, WILLIE SEALS, FREDERICK )
EPPICH, JEROME SCHOOLFIELD, ) 2:18-cv-01698-RJC
KRISTINA TRAVIS, JEREMY WINKELS, )
DANIEL FORRESTER, MARK DAVID )
GRIFFETH, DOUGLAS RUSSELL, )
KENNETH BURTON, GERALD )
GENSOLI, and THOMAS DEPPIESSE, on )
behalf of themselves and others similarly )
situated, )
)
Plaintiffs, )
)
vs. )
)
FEDEX GROUND PACKAGE SYSTEMS, )
INC., )
)
Defendant. )
MEMORANDUM OPINION
Robert J. Colville, United States District Judge
Before the Court are the following Motions filed by the parties in the above-captioned
matter: (1) the “Motion to Dismiss 450 Opt-In Plaintiffs Based on Fedex’s Scanner Data” (the
“Motion to Dismiss”) (ECF No. 397) filed by Plaintiffs; (2) the “Rule 37 Motion for Sanctions
Relating to Opt-In Plaintiff, Keith Strege” (the “Motion for Sanctions”) (ECF No. 400) filed by
Defendant FedEx Ground Package System, Inc. (“FedEx”); (3) Plaintiffs’ “Motion to Compel the
Production of Documents” (the “Motion to Compel Documents”) (ECF No. 402); and (4)
Plaintiffs’ “Motion to Compel the Production of Certain FedEx Policies” (the “Motion to Compel
Policies”) (ECF No. 416). The present case is a hybrid collective action under the Fair Labor
Standards Act (“FLSA”) and Rule 23 class action brought under the laws of certain states by the
named Plaintiffs on behalf of themselves and other similarly situated individuals (collectively,
“Plaintiffs”) against FedEx for FedEx’s alleged failure to pay requisite overtime compensation to
Plaintiffs. The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331. The Motions at
issue have been fully briefed and are ripe for disposition.
I. Factual Background & Procedural History
As this Court has noted in previous opinions in this case, Plaintiffs assert that they were
employed by FedEx through intermediary employers1 to perform delivery services on FedEx’s
behalf. First Am. Compl. ¶ 35, ECF No. 297. Plaintiffs further assert that FedEx has violated the
FLSA by not paying overtime compensation to Plaintiffs for all hours worked over forty each
week. Id. Because the Court writes primarily for the benefit of the parties and has set forth the
factual background and procedural history of this matter at length in its previous opinions, the
Court foregoes a detailed recitation of the factual background and procedural history in this
Memorandum Opinion. Where appropriate, the Court will cite to relevant facts or procedural
history in the discussion section of this Memorandum Opinion.
II. Legal Standards
A. Dismissal Pursuant to Rule 41(a)(2)
With respect to voluntary dismissal where a court order is required, Federal Rule of Civil
Procedure 41(a)(2) provides as follows:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's
request only by court order, on terms that the court considers proper. If a defendant
1 These intermediary employers are companies that entered into contracts with FedEx to provide delivery and pickup
services on FedEx’s behalf and are referred to as Independent Service Providers (ISPs) and Contracted Service
Providers (CSPs) in the record. The distinction between ISPs and CSPs is not relevant to this Court’s consideration
of the present Motions, and the Court will refer to ISPs and CSPs collectively as “Service Providers.”
has pleaded a counterclaim before being served with the plaintiff’s motion to
dismiss, the action may be dismissed over the defendant’s objection only if the
counterclaim can remain pending for independent adjudication. Unless the order
states otherwise, a dismissal under this paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a)(2). “A motion for voluntary dismissal under Rule 41(a)(2) lies within the
sound discretion of the district court.” Dodge-Regupol, Inc. v. RB Rubber Prod., Inc., 585 F. Supp.
2d 645, 652 (M.D. Pa. 2008).
B. Motions for Sanctions Pursuant to Rule 37
Federal Rule of Civil Procedure 37(b)(2) describes the sanctions that may be imposed for
a party’s failure to obey a discovery order, and provides:
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party’s
officer, director, or managing agent--or a witness designated under
Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a), the
court where the action is pending may issue further just orders. They
may include the following:
(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting
or opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or
in part;
(vi) rendering a default judgment against the
disobedient party; or
(vii) treating as contempt of court the failure to obey
any order except an order to submit to a physical or
mental examination.
Fed. R. Civ. P. 37(b)(2)(A). With respect to monetary sanctions, Rule 37(b)(2)(C) provides:
Payment of Expenses. Instead of or in addition to the orders above, the court must
order the disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 37(b)(2)(C).
In addition, Federal Rule of Civil Procedure 41(b) provides: “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed. R. Civ. P. 41(b).
C. Motions to Compel
Federal Rule of Civil Procedure 26 provides that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(C) provides:
On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can
be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
After a party “has in good faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it without court action,” that party
may, “on notice to other parties and all affected persons,” move for an order compelling disclosure
or discovery. Fed. R. Civ. P. 37(a)(1). If a motion to compel is granted, subject to certain
exceptions, “the court must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney advising that conduct or both to pay
the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed.
R. Civ. P. 37(a)(5)(A). If the motion is denied, the court may “issue any protective order
authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(B). “If the motion is granted in part and denied in part, the court may issue any protective
order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).
III. Discussion
A. Motion to Dismiss
Plaintiffs seek dismissal without prejudice of 450 opt-ins in this case pursuant to Fed. R.
Civ. P. 41(a)(2).2 Plaintiffs candidly acknowledge that these 450 opt-ins cannot maintain a claim
2 The Court will consider all of the opt-in Plaintiffs discussed in Plaintiffs’ Motion to Dismiss except Keith Strege,
whose claims will be dismissed with prejudice based upon a failure to comply with discovery orders, as discussed
further below. To the extent that the 450 opt-in Plaintiffs at issue in Plaintiffs’ Motion to Dismiss cross over with the
500 opt-in Plaintiffs at issue in FedEx’s Motion to Dismiss at ECF No. 356, which seeks dismissal for failure to
comply with discovery orders, the parties are directed to confer and may seek any relief they believe might be
necessary given the holding in this Memorandum Opinion and the holding in the Memorandum Opinion addressing
FedEx’s Motion to Dismiss. Both Memorandum Opinions provide for dismissal with prejudice, and the Court is not
inclined to stray from its holding in this Memorandum Opinion that any discovery provided by a dismissed opt-in
Plaintiff may be proffered and considered at the final certification/decertification stage.
for unpaid overtime compensation under the FLSA because they did not drive trucks weighing less
than 10,000 pounds during the relevant timeframe on a level above de minimis work, and that they
thus are not eligible to receive overtime compensation under the Small Vehicle Exception to the
Motor Carrier Act Exemption. Br. in Supp. 6, ECF No. 398. With respect to the Motor Carrier
Act Exemption, the United States Court of Appeals for the Third Circuit has explained:
Section 7 of the Fair Labor Standards Act provides that employers must pay hourly
employees 150% their typical wages on hours they work in a week over 40. See 29
U.S.C. § 207; Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 250 (3d Cir.2005).
One exemption to this general rule is Section 13(b)(1) of the Act. Known as the
Motor Carrier Act Exemption, the provision provides that overtime pay is not
required for “any employee with respect to whom the Secretary of Transportation
has power to establish qualifications and maximum hours of service.” See 29
U.S.C. § 213(b)(1); see also 49 U.S.C. §§ 31502(b), 13102 (defining scope of
Secretary of Transportation’s regulatory authority).
Congress elaborated upon the Motor Carrier Act Exemption with the enactment of
the Corrections Act of 2008. Section 306(a) of the Corrections Act provides that
“Section 7 of the Fair Labor Standards Act . . . shall apply to a covered employee
notwithstanding section 13(b)(1) of that Act.” See Corrections Act, § 306(a).
Section 306(c) of the Corrections Act defines the term “covered employee.” In
short, a “covered employee” is an employee of a motor carrier whose job, “in whole
or in part,” affects the safe operation of vehicles lighter than 10,000 pounds, except
vehicles designed to transport hazardous materials or large numbers of passengers.
Corrections Act § 306(c).
McMaster v. E. Armored Servs., Inc., 780 F.3d 167, 169 (3d Cir. 2015) (footnote omitted).
Employees who are subject to the Motor Carrier Act Exemption may be entitled to
overtime pay under the Small Vehicle Exception. “There seems to be general consensus [among
district courts] that ‘in order [for the Small Vehicle Exception to apply], an employee must (1)
perform some work that affects the safety of operation of small vehicles, and (2) it must be part of
the employee’s duties to [do] so, where ‘some work’ must at least rise above the level of de
minimis work . . . .” Oddo v. Bimbo Bakeries U.S.A., Inc., 391 F. Supp. 3d 466, 471 (E.D. Pa.
2019) (quoting Morgan v. Rig Power, Inc., No. 15-073, 2017 WL 11017230, at *15 (W.D. Tex.
Sept. 1, 2017)).
While Plaintiffs request dismissal without prejudice of the litigants at issue in its Motion
to Dismiss, the Court finds that Plaintiffs provide no basis for the same. Plaintiffs have conceded
that the discovery provided by FedEx is true and accurate as to the vehicles driven by the 449 opt-
ins at issue in Plaintiffs’ Motion to Dismiss, and, in so doing, acknowledge that they cannot, as a
matter of law and fact, maintain an FLSA claim against FedEx. Even if Plaintiffs are correct that
each of the five factors3 they cite support dismissal of their claims without prejudice, the Court
cannot disregard Plaintiffs’ own admission that the 449 opt-in Plaintiffs at issue in the Motion to
Dismiss cannot maintain a claim against FedEx. While Plaintiffs continually reference the
possibility that these individuals may maintain individual suits in the future, Plaintiffs also
candidly acknowledge:
As mentioned above, Plaintiffs’ counsel have concluded that FedEx’s Scanner Data
contains objective and reliable GVWR information concerning the GVWR of
vehicles driven by opt-in Plaintiffs, and Plaintiffs agree with FedEx’s position that
opt-ins must have driven a light vehicle during at least 1% of all workdays during
the relevant time period to fall within the small vehicle exception.
Br. in Supp. 6, ECF No. 398 (citations omitted).
The Small Vehicle Exception is essential to Plaintiffs’ claims in this matter, and the failure
of certain opt-in Plaintiffs to qualify for potential overtime compensation under this Exception was
the basis for Plaintiffs’ lack of opposition to, and this Court’s decision to grant, a recent summary
judgment motion in this case. See MSJ Mem. Op. at 5 (“The Court need not, and will not, expend
3 See Br. in Supp. 8, ECF No. 398 (“Within the Third Circuit, Courts often consider the following factors in deciding
whether to grant voluntary dismissal under Rule 41(a)(2): 1) the excessive and duplicative expense of a second
litigation; 2) the effort and expense incurred by the defendant in preparing for trial; 3) the extent to which the current
suit has progressed; 4) the plaintiff’s diligence in bringing the motion to dismiss and explanation thereof; and 5) the
pendency of a dispositive motion by the nonmoving party.”).
significant resources or time in resolving the MSJ with respect to Russell and Burton, where each
has admitted and acknowledged that judgment should be entered against them on the basis that
they cannot invoke the Small Vehicle Exception and are thus exempt from receiving overtime
compensation.”). Quite simply, Plaintiffs have conceded that the individuals at issue in their
Motion to Dismiss cannot maintain a claim against FedEx because they are exempt from the
FLSA’s overtime requirement. Further, they do so late in this case, which has been pending since
December of 2018. Moreover, Plaintiffs have moved to dismiss these opt-in Plaintiffs while a
summary judgment motion was pending. To be clear, the opt-in Plaintiffs at issue in the Motion
to Dismiss were not the subject of that motion. However, it bears noting that Plaintiffs’ basis for
seeking dismissal of these opt-in Plaintiffs, the inapplicability of the Small Vehicle Exception, is
identical to the basis for the Court granting FedEx’s summary judgment motion. Plaintiffs were
clearly on notice of the likelihood of dispositive motion practice with respect to the individuals it
now seeks to dismiss. See Br. in Supp. 12, ECF No. 398 (“The remaining opt-ins are not currently
subject to any such similar motion, although it is anticipated that FedEx will continue to file
summary judgment motions for any opt-ins that, according to Scanner Data, did not drive light
vehicles. Granting this motion now will save the parties and the Court from incurring unnecessary
time and expenses on individuals that are not properly part of the collective.”). In light of the
above, the Court believes that dismissal with prejudice of these individuals is warranted.
FedEx also implies that Plaintiffs’ request to dismiss these individuals, at this juncture, is
a strategical maneuver designed to undermine any attempt at decertification by FedEx. FedEx
argues that Plaintiffs’ request to dismiss these individuals shines a light on the individualized
inquiries that will be necessary to guide this case to an ultimate resolution, in that discovery will
be necessary as to each of the 30,000 opt-in Plaintiffs to determine how often they drove a
lightweight vehicle. FedEx thus opposes unconditional dismissal of these opt-in Plaintiffs, and
the Court tends to agree that their existence should not be ignored for purposes of decertification
and/or final certification. These individuals will be dismissed with prejudice, and the
representative discovery provided to date by these individuals may be proffered, utilized, and
referenced, if appropriate, in motion practice moving forward with respect to whether this case
should proceed as a collective action.4 Given that these opt-in Plaintiffs will be dismissed from
this action, the Court will not order that they be required to provide any further discovery by way
of this Memorandum Opinion. The Court finds that these terms are proper for purposes of Rule
41(a)(2) dismissal in this matter.
The Court declines FedEx’s request, by way of a brief in opposition, for a sua sponte
decertification of the collective in this matter. The Court will entertain a motion regarding the
same when appropriately filed, but would not encourage either party to file a motion regarding
final certification or decertification before sufficient discovery has taken place to allow for all
relevant arguments to be presented in a single motion. The Court strongly discourages inefficient,
successive motion practice. That said, if either party believes the same will greatly streamline
resolution of this case, the parties are hereby granted leave to file such a motion.
B. Motion for Sanctions
FedEx seeks monetary sanctions under Fed. R. Civ. P. 37 against opt-in Plaintiff Keith
Strege (“Strege”) based upon Strege’s failure to adhere to Court orders, and specifically his failure
to attend a deposition on two separate occasions. FedEx seeks reasonable fees and costs under
Rule 37 for the time and costs associated with discovery as to Strege, as well as his failure to
4 The use of representative discovery at the decertification stage was anticipated in this action. See Mem. Op. 18, ECF
No. 293 (“Further, the scope of such representative discovery should be reasonable, balancing the burden of such
discovery on Plaintiffs and the needs of FedEx, and specifically the amount of discovery FedEx believes it requires to
argue against final certification.”).
appear for his deposition. Mot. 1, ECF No. 400. FedEx requests that Plaintiffs’ counsel, rather
than Strege, be responsible for at least two-thirds of any fees and costs that are awarded associated
with the discovery for Strege, and 100 percent of the fees and costs for FedEx’s preparation of the
Motion for Sanctions. FedEx also requests that Strege be dismissed with prejudice from this
action, and Plaintiffs do not oppose this request. Br. in Opp’n 1, ECF No. 404.
As this Court has previously explained, opt-in plaintiffs can be, and have been in this
matter, subject to discovery in a collective action, see Bonds v. GMS Mine Repair & Maint., Inc.,
No. 2:13-CV-1217, 2014 WL 6682475, at *2 (W.D. Pa. Nov. 25, 2014), and can further be subject
to dismissal with prejudice for their failure to participate in discovery after being Court-ordered to
do so, Camesi v. Univ. of Pittsburgh Med. Ctr., No. CIV.A.09-85J, 2010 WL 2104639, at *11
n.14. By way of its August 12, 2021 Memorandum Opinion (ECF No. 293), this Court provided
the parties with “clear guidance” as to how individuals who failed to comply with Court orders
directing them to comply with discovery requests would be viewed by the Court. Mem. Op. 27,
ECF No. 293 (quoting Camesi, 2010 WL 2104639, at *11). The Court explained that opt-ins who
failed to comply with such Court orders would be subject to dismissal with prejudice for the
reasons articulated in that Memorandum Opinion. Id. at 26. Strege failed to appear for his
deposition in violation of this Court’s March 29, 2022 Order, which advised him that his dismissal
from this matter was a potential, if not likely consequence of such action. Moreover, Strege does
not oppose dismissal with prejudice. He will be dismissed from this action with prejudice.5
5 FedEx also requests that the Court enter an order providing that Strege is not “similarly situated” to the collective
Plaintiffs seek to have finally certified. Br. in Supp. 2, ECF No. 401. However, FedEx filed a Motion for Sanctions
pursuant to Rule 37, not a motion for summary judgment (as it did with other opt-in Plaintiffs it believed were outside
of the collective that had been conditionally certified in this case). Strege will be dismissed as a result of his failure
to comply with a discovery order, as FedEx has requested. The Court will not make a final determination as to the
merits of his claim, as the Court believes the same would not be appropriate in response to FedEx’s Motion for
Sanctions.
With respect to FedEx’s request for monetary sanctions against Strege, and as this Court
has already explained, “attorneys’ fees and cost[s] are neither appropriate nor likely to be effective
in a case involving comparatively low wage employees serving in a representative capacity.”
Ludwig v. Speedway LLC, No. CV 20-0824, 2021 WL 2223833, (E.D. Pa. June 2, 2021). Strege’s
claims will be dismissed with prejudice based upon his failure to comply with this Court’s March
29, 2022 Order, and this is a sufficient sanction against an individual. In this Court’s estimation,
the addition of attorney’s fees and costs on top of dismissal with prejudice would tend to make an
award of expenses unjust. The Court cautions that this holding may not be extended to future non-
compliant opt-ins should repeated non-compliance become the norm among Plaintiffs chosen for
depositions in this case.
“Under Rule 37, an attorney may only be sanctioned for personally violating a discovery
order or for advising a client to do so.” Naviant Mktg. Sols., Inc. v. Larry Tucker, Inc., 339 F.3d
180, 185 (3d Cir. 2003). Counsel for Plaintiffs canceled Strege’s deposition unilaterally, and at
the last minute, because Plaintiffs intended to move to dismiss Strege’s claims without prejudice.
As this Court explained during the April 25, 2022 Status Conference in this matter:
Regarding the Strege deposition, look, you are all operating under current court
orders, not aspirational or hopeful court orders. You all proceed at your own peril.
If you shut down a deposition or don’t produce, you are subject to any appropriate
request and response. That will require a motion as well. You all know what the
options are.
Tr. 23:6-12, ECF No. 393. While this statement was made after Plaintiffs’ counsel had canceled
Strege’s deposition, the message rings true. Any attorney who disregards a Court order and
unilaterally cancels a deposition compelled by Court order proceeds at their own peril. While
Plaintiffs’ counsel might have believed that they had good reason to cancel the deposition,
specifically that a lengthy deposition would have been a waste of everyone’s time, unilateral
cancelation on the eve of the deposition warrants some form of sanction against counsel. The
Court will not award sanctions in the form of all costs associated with discovery as to Strege, as
FedEx requests, but rather will award fees and costs associated only with the preparation of the
Motion for Sanctions. FedEx will be directed to confer with Plaintiffs’ counsel regarding FedEx’s
reasonable costs and fees associated with the filing of the Motion for Sanctions. If the parties are
unable to reach agreement on the amount of costs and fees, FedEx may file, within 14 days of the
Court’s Order, its bill of purported reasonable costs and fees. Plaintiffs may then submit an
appropriate response within 10 days.
C. Motion to Compel Documents
Plaintiffs’ Motion to Compel Documents requests that the Court enter an order compelling
FedEx to provide three categories of documents in discovery: (1) documents pertaining to First
Advantage, which is purportedly a third-party vendor that FedEx utilizes to screen drivers desiring
to work for FedEx and its Service Providers, Mot. 1, ECF No. 402; (2) “driver disqualification
documents” for a larger sampling of drivers, id. at 1-2; and (3) certain “compliance documents”
regarding wage and hour audits for a larger sampling of Service Providers, id. at 2. Plaintiffs assert
that each of these categories of documents will prove relevant to the Court’s eventual consideration
of the issue of whether FedEx was a “joint employer” during the timeframe relevant herein. Id. at
1-2.
The Third Circuit has explained that “the Supreme Court has . . . gone so far as to
acknowledge that the FLSA’s definition of an employer is ‘the broadest definition that has ever
been included in any one act.’” In re Enter. Rent-A-Car Wage & Hour Emp. Pracs. Litig., 683
F.3d 462, 467–68 (3d Cir. 2012) (quoting United States v. Rosenwasser, 323 U.S. 360, 363 n. 3,
65 S.Ct. 295, 89 L.Ed. 301 (1945)). Courts in the Third Circuit utilize the Enterprise test in
determining whether a joint employer situation exists:
When faced with a question requiring examination of a potential joint employment
relationship under the FLSA, we conclude that courts should consider: 1) the
alleged employer’s authority to hire and fire the relevant employees; 2) the alleged
employer’s authority to promulgate work rules and assignments and to set the
employees’ conditions of employment: compensation, benefits, and work
schedules, including the rate and method of payment; 3) the alleged employer’s
involvement in day-to-day employee supervision, including employee discipline;
and 4) the alleged employer’s actual control of employee records, such as payroll,
insurance, or taxes. As we have noted, however, this list is not exhaustive, and
cannot be “blindly applied” as the sole considerations necessary to determine joint
employment. If a court concludes that other indicia of “significant control” are
present to suggest that a given employer was a joint employer of an employee, that
determination may be persuasive, when incorporated with the individual factors we
have set forth.
In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., 683 F.3d 462, 469–70
(3d Cir. 2012) (citation omitted).
With respect to the First Advantage documents, Plaintiffs provide “[a]s explained by a
FedEx Station Manager, First Advantage has a process that determines whether drivers are
qualified to work for FedEx, using criteria provided by FedEx . . . .” Mot. 4, ECF No. 402.
Plaintiffs seek the following production of purportedly relevant documents:
• all contracts between FedEx and First Advantage concerning the services that First
Advantage has provided to FedEx and/or [Service Providers] since November 27,
2015; and
• a sampling of emails to and from six FedEx email addresses that receive emails
relating to driver qualifications during four randomly-selected weeks in each
calendar year from 2016 through 2021.
Id. FedEx objects to production of the FedEx/First Advantage contracts on relevance and
redundancy grounds, and objects to the email sampling requests on the basis of relevance, burden,
and overbreadth.
The Court agrees with Plaintiffs that the contracts between FedEx and First Advantage
could possibly lead to the discovery of evidence relevant to the question of whether common
evidence can be used to prove the Enterprise factors, and specifically with respect to FedEx’s
purported authority to hire. FedEx’s relevance objections are noted, and FedEx can argue that
these contracts are irrelevant at the final certification/decertification stage. The Court will
determine the documents’ ultimate relevance at the appropriate time, if necessary. The Motion to
Compel Documents will be granted as to Plaintiffs’ request for FedEx/First Advantage contracts.
The Court agrees with FedEx that Plaintiffs fail to sufficiently inform the Court as to why
the First Advantage emails are sought and how they might ultimately be relevant to the Court’s
inquiry into whether the collective is similarly situated. As currently constructed, the request is
overbroad and asks FedEx to undertake a burdensome ESI inquiry. The Motion to Compel
Documents will be denied with respect to Plaintiffs’ email sampling request.
Turning to the “driver disqualification documents,” these documents include: “(i) letters
notifying a driver/[Service Provider] that the driver has been disqualified; (ii) Disqualification
Event Forms; (iii) Business Discussion Records; and (iv) documents concerning FedEx’s
RESOLVE process.” Mot. 5, ECF No. 402. Plaintiffs explain that, once a driver has been
disqualified by FedEx, the driver is prohibited from driving for FedEx anywhere throughout the
nation. Id. The first set of letters sought by Plaintiffs are purportedly those that are sent to drivers
and Service Providers notifying them that FedEx has made a determination that a particular driver
has been disqualified from driving for FedEx. Id. “Disqualification Event Forms are standardized
forms that FedEx issues pursuant to FedEx procedure reflecting why a driver’s employment is
being terminated.” Id. The business discussion records purportedly involve conversations
between FedEx and Service Providers respecting the failure of Service Providers to follow FedEx’s
policies and procedures, id., and the RESOLVE process is purportedly utilized by FedEx to allow
Service Providers to dispute FedEx’s disqualification of a driver, id. at 6. Plaintiffs argue that
these documents are relevant to FedEx’s authority to fire drivers, as well as its control over driver
supervision (including discipline), drivers’ work rules and assignments, drivers’ compensation,
and employee records. Id. at 6. Plaintiffs aver that “[a]lthough Plaintiffs are seeking policy and
standardized contracts from FedEx pertaining to its disqualification of drivers,” which this Court
will address below, “Plaintiffs are also entitled to obtain documents from a sample of drivers
demonstrating how FedEx’s policies are actually implemented.” Id. at 7.
Plaintiffs seek to compel FedEx to provide such driver disqualification documents for a
larger sampling of opt-ins than has already been provided. Specifically, Plaintiffs seek such
discovery from the following individuals:
(i) any individual who has returned a questionnaire and is not the subject of FedEx’s
February 14, 2022 motion to dismiss;
(ii) any individual who is the subject of the February 14, 2022 motion to dismiss
and is not dismissed by the Court;
(iii) any individual who in the future signs and returns a complete questionnaire;
and
(iv) 200 of the 1,000 individuals selected by Plaintiffs’ counsel for whom FedEx
has gathered GVWR information.
Mot. 7, ECF No. 402. The Court notes that category (ii) is ultimately moot, as the Court has,
contemporaneously herewith, granted FedEx’s February 14, 2022 Motion to Dismiss, and has
dismissed each of the individuals identified in that Motion with prejudice.
FedEx objects to these requests, and asserts that they are “overbroad, disproportionate,
impermissible, and seeking information that cannot support Plaintiffs’ joint-employment
allegations or similarly-situated theory.” Br in Opp’n 6, ECF No. 406. FedEx again objects on
relevance grounds as well. FedEx further asserts that “Plaintiffs have already obtained these
documents related to 57 pre-notice opt[-]ins and Plaintiffs call these documents ‘standardized
letters,’ underscoring that Plaintiffs have no ‘actual need’ for more redundant documents.” Id.
FedEx also argues that Plaintiffs seek individualized discovery regarding thousands of opt-in
Plaintiffs, and that the same cannot be used to prove that the collective is similarly situated.
As FedEx correctly notes, discovery is limited by proportionality, and representative
discovery is the standard by which collective actions proceed at this stage. That said, the Court
acknowledges that the “driver disqualification documents” may lead to the discovery of relevant
evidence respecting the joint employer inquiry, and FedEx has already produced such information
with respect to 57 pre-notice opt-ins. While the Court notes FedEx’s relevance objection, and the
same is preserved, the Court overrules that objection at this juncture. The Court will compel FedEx
to produce “driver disqualification documents,” as defined in the Motion to Compel Documents,
for 100 individuals selected by Plaintiffs that meet the definition of “(i)” above, i.e. individuals
who, at the time of the filing of the Motion to Compel Documents, had participated in discovery,
had returned a completed questionnaire, and who were not the subject of FedEx’s February 14,
2022 Motion to Dismiss. Absent a more particularized showing of the necessity for the same, the
Court is not inclined, at this time, to order that FedEx be required to produce such documents for
“any individual who in the future signs and returns a complete questionnaire.”
Finally, Plaintiffs seek to compel certain “compliance documents” regarding FedEx’s wage
and hour audits for a larger sampling of Service Providers. These documents include: “(i)
Compliance Investigation Reports/Compliance Analyses; (ii) Notices of Compliance Concern;
(iii) Notices of Opportunity to Cure; and (iv) Letters, memoranda, and other documents informing
[Service Providers] of the termination of their contract.” Mot.. 7-8, ECF No. 402. “Compliance
Investigation Reports/Compliance Analyses are documents reflecting FedEx’s wage and hour
audits of [Service Providers] wherein FedEx summarizes its investigation into whether [Service
Providers] are paying drivers proper overtime compensation and are properly maintaining
timekeeping and payroll information.” Id. at 8. “Notices of Compliance Concern are letters that
FedEx sends to [Service Providers] informing them as to the findings of it[s] wage and hour
audits.” Id. “Notices of Opportunity to Cure consists of correspondence that FedEx sends to
[Service Providers] informing them that they must remedy by a certain date their failure to pay
overtime pay to drivers and/or to maintain proper payroll records.” Id. at 9. The letters informing
Service Providers of termination of their contract set forth the reason for termination. Id. Plaintiffs
argue that these categories of documents are relevant because they tend to show that FedEx
maintained: (1) the authority to fire drivers, (2) supervision over drivers, and (3) control over driver
compensation, records, and work rules and assignments. Id. at 9-10.
FedEx again objects on relevance grounds, and argues that “[c]ontrary to Plaintiffs’
contention, the audits actually show that FedEx Ground does not control, direct, or determine the
method by which Service Providers pay drivers.” Br. in Opp’n 10, ECF No. 406. Again, the Court
finds that the documents sought by Plaintiffs may lead to the discovery of some relevant evidence
as to the relationship between FedEx, Service Providers, and drivers that may ultimately be
relevant as to whether the Plaintiffs can prove that they are similarly situated and that FedEx is
their joint employer. Again, the Court also agrees with FedEx that this discovery should be limited
to an extent in the interest of proportionality. The Court will compel FedEx to produce
“compliance documents,” as defined in the Motion to Compel Documents, pertaining to the
Service Providers who paid the 100 individuals selected by Plaintiffs for the “driver
disqualification documents.” To the extent that FedEx claims that any of these documents is
privileged, FedEx may provide a privilege log identifying the purportedly privileged document
and setting forth the basis for its assertion of privilege.
D. Motion to Compel Policies
Plaintiffs also request that the Court enter an order compelling FedEx to provide what
Plaintiffs characterize as a “large number of additional relevant policies and procedures referenced
but not yet produced by FedEx.” Mot. 2, ECF No. 416. FedEx again objects on the basis of
relevance, and further asserts that the documents sought by way of the Motion to Compel Policies
are cumulative because “extensive discovery into the nature of the relationship between FedEx
Ground and Service Providers has been done.” Br. in Opp’n 8, ECF No. 423. For reasons
consistent with the Court’s discussion above, the Court finds that the internal FedEx documents
sought by way of the Motion to Compel Policies may lead to the discovery of evidence relevant to
the question of whether common evidence can be used to prove the Enterprise factors. FedEx has
offered minimal argument as to the burden that would be imposed by being required to produce
its own internal policies. While the information sought may be cumulative to an extent, the Court
is inclined to require the production of the internal FedEx documents at this juncture, subject to
any privilege objections raised by FedEx, and properly identified and described in a privilege log.
Should any legitimate disagreement arise regarding what documents are publicly available, what
documents do not exist, and/or what documents have already been produced to date, the parties
are directed to first confer in an effort to resolve such disputes without Court involvement.
To the extent that the documents sought by way of the discovery requests at issue in the
Motion to Compel Policies exist, are not publicly available, and/or have not already been provided,
this Court will enter an order compelling FedEx to provide the same within thirty days of this
Court’s Order. To the extent that FedEx claims that any of these documents is privileged, FedEx
may provide a privilege log identifying the purportedly privileged document and setting forth the
basis for its assertion of privilege. The Court will award no fees or expenses associated with either
Motion to Compel.
IV. Conclusion
For the reasons discussed above, the Court will enter an Order disposing of the Motions at
issue in this Memorandum Opinion consistent with the Court’s analysis above. An appropriate
Order of Court follows.
BY THE COURT:
s/Robert J. Colville
Robert J. Colville
United States District Judge
DATED: September 28, 2022
cc/ecf: All counsel of record