Branning v. Romeo's Pizza, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRADLEY DIETRICH, on behalf of ) Case No.: 1:19 CV 2092

himself and those similarly situated, )

)

Plaintiffs ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

ROMEO’S PIZZA, INC., et al., )

)

Defendants ) ORDER

Currently pending before the court in the above-captioned case is Plaintiff Bradley Dietrich’s

(“Plaintiff” or “Dietrich”) Combined Motion for Class Certification Pursuant to Federal Rule of

Civil Procedure (“Rule”) 23 and Motion for Conditional Certification under the Fair Labor

Standards Act (“FLSA”) (“Motion”) (ECF No. 141). For the reasons that follow, the court grants

Plaintiff’s Motion.

I. BACKGROUND

A. Factual Background

This dispute centers on Plaintiff’s contention that BDS Brunswick, LLC (“Romeo’s

Brunswick”), BDS Brookpark, LLC (“Romeo’s Brookpark”), Romeos Parma, LLC (“Romeo’s

Parma”), and Ryan Rose (collectively, “Defendants”) required delivery drivers to provide their own

vehicles for their work, but inadequately reimbursed them for work-related vehicle expenses, which

caused them to be paid less than the minimum wage.

Dietrich alleges that he worked at several Romeo’s Pizza stores in northeast Ohio beginning

in December 2014. (Second Am. Compl. ¶ 266, ECF No. 66.) At each store, Dietrich worked both

inside the restaurant and as a delivery driver. (Id. ¶ 273.) When Dietrich worked as a delivery driver,

he was paid a minimum wage, minus a tip credit, as an hourly rate for hours worked delivering

pizzas. (Id. ¶ 271.) Throughout his employment, Plaintiff has been required to use his own car to

deliver pizzas. (Id. ¶ 275.) Dietrich alleges that he was required to incur vehicle expenses in order

to perform his duties as a delivery driver, including, but not limited to, depreciation, gasoline,

maintenance, insurance, financing, and licensing. (Id. ¶ 279.) Instead of being reimbursed for his

actual delivery-related expenses, Dietrich was paid $1.25 flat rate per delivery, and $0.23 per mile

in reimbursement, depending on the time frame. (Id. ¶ 277.) Plaintiff asserts that Defendants applied

this reimbursement policy to all delivery drivers, and that Defendants’ reimbursement policy caused

delivery drivers’ wages to drop below the statutory minimum. (Mot. at PageID 5091.)

B. Procedural History

On September 11, 2019, Matthew Branning filed a class action Complaint in this court, on

behalf of himself and other similarly-situated delivery drivers, asserting the following five claims

for relief: (1) failure to pay minimum wages in violation of the Fair Labor Standards Act (“FLSA”)

(“Count One”); (2) failure to pay minimum wages in violation of the Ohio Constitution (“Count

Two”); (3) untimely payment of wages in violation of Ohio Revised Code § 4113.15 (“Count

Three”); (4) damages, pursuant to Ohio Revised Code § 2307.60 (“Count Four”); and (5) unjust

enrichment (“Count Five”). (See generally, ECF No. 1.) Since filing his original Complaint,

Branning subsequently amended his Complaint twice and added Bradley Dietrich as a Plaintiff,

without objection from Defendants, and after obtaining leave of the court. (ECF Nos. 63–66.)

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Following a Settlement Agreement, on January 16, 2023, (See ECF No. 124), Plaintiff

Matthew Branning and the following Defendants were terminated from the litigation: Spackler,

Smails, and Noonan Pizza Company; The Summer of George Pizza Company, LLC; I Don’t Always

Eat Pizza Company, LLC; Robert Braun; Charles Thomas Fiala; John O’Keefe; David Leisinger;

the Estate of Michael Hudson; and Robert Gligora.

On October 22, 2024, Dietrich, on behalf of himself and other similarly-situated delivery

drivers, filed the instant Combined Motion for Rule 23 Class Certification and FLSA Conditional

Certification (ECF No. 141). Dietrich asks the court to certify, and designate him as the

representative of, the following class, pursuant to Rule 23:

All current and former delivery drivers employed by Defendants at

Defendants’ Romeo’s Pizza stores in the State of Ohio between the

date three years prior to the filing of the original Complaint and

December 31, 2019 (“Rule 23 Class”).

(Mot. at PageID 5087.) In addition, Plaintiff asks the court to conditionally certify the following

class under the FLSA, pursuant to 29 U.S.C. § 216(b):

All current and former delivery drivers employed at Defendants’

Romeo’s Pizza stores between the date three years prior to the filing

of the original complaint and December 31, 2019 (“FLSA

Collective”).

(Id. at PageID 5088.)

On December 2, 2024, Defendants filed Opposition (ECF No. 145) to the instant Motion,

to which Dietrich filed a Reply (ECF No. 146) on December 19, 2024.

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II. LEGAL STANDARD

A. Class Certification Under Rule 23

The Sixth Circuit has explained that “[t]o obtain class certification, the plaintiffs must show

that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions

of law or fact common to the class; (3) the claims or defenses of the representative parties are typical

of the claims or defenses of the class; and (4) the representative parties will fairly and adequately

protect the interests of the class.” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig.,

722 F.3d 838, 850 (6th Cir. 2013) (citing Fed. R. Civ. P. 23(a)). These four requirements are

commonly referred to as numerosity, commonality, typicality, and adequacy of representation. The

Sixth Circuit has also made clear that “[i]n addition to fulfilling the four prerequisites of Rule 23(a),

the proposed class must also meet at least one of the three requirements listed in Rule 23(b).” In re

Whirlpool Corp., 722 F.3d at 850. District courts have “broad discretion to decide whether to certify

a class.” Id. (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996).

B. FLSA Conditional Notice

Under 29 U.S.C. § 216(b) of the FLSA, an employee may bring an action on behalf of herself

and others “similarly situated.” 29 U.S.C. § 216(b). Each employee wishing to join the collective

action must affirmatively “opt-in” by filing written consent. Id. District courts have discretion to

facilitate notice to potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171

(1989). Before facilitating notice, however, courts must determine whether the potential class

members are similarly situated under § 216(b). Id. In Clark v. A&L Homecare and Training Ctr.,

LLC, 68 F.4th 1003, 1011 (6th Cir. 2023), the Sixth Circuit established a heightened standard for

the “similarly situated” FLSA notice inquiry:

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[F]or a district court to facilitate notice of an FLSA suit to other

employees, the plaintiffs must show a “strong likelihood” that those

employees are similarly situated to the plaintiffs themselves. That

standard requires a showing greater than the one necessary to create

a genuine issue of fact, but less than the one necessary to show a

preponderance. The strong-likelihood standard is familiar to the

district courts; it would confine the issuance of court-approved

notice, to the extent practicable, to employees who are in fact

similarly situated; and it would strike the same balance that courts

have long struck in analogous circumstances.

Clark, 68 F.4th at 1011 (internal citations omitted).

If a district court determines that the employees are similarly situated, it moves to the next

phase of the inquiry. The second phase occurs after “all of the opt-in forms have been received and

discovery has concluded.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).

During this phase, courts have discretion to make a more thorough finding regarding the “similarly

situated” requirement. Id. at 547. Should the court determine “claimants are similarly situated, the

district court allows the representative action to proceed to trial. If the claimants are not similarly

situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without

prejudice.” Douglas v. GE Energy Reuter Stokes, No. 1:07-CV-077, 2007 WL 1341779, at *4 (N.D.

Ohio Apr. 30, 2007).

III. LAW AND ANALYSIS

A. The Import of Parker

The court begins its analysis by addressing a central issue raised by the parties: whether the

Sixth Circuit’s decision in Parker v. Battle Creek Pizza, Inc., 95 F.4th 1009 (6th Cir. 2024), outright

precludes class certification in this case. Parker consolidated two class actions in which the parties

disagreed about how pizza delivery drivers should be reimbursed for the costs of providing their

vehicles for their work, consistent with the FLSA. The plaintiffs in Parker advocated for

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reimbursements at the IRS standard mileage rate, whereas the defendants argued that reimbursements

at an employer-determined “reasonable approximation” was sufficient for FLSA compliance.

In rejecting both the plaintiffs’ and the defendants’ arguments as to the proper method for

measuring the costs an employee incurs, the Parker court concluded that the “statute entitles a

minimum-wage employee to reimbursement of his actual costs incurred on his employer’s behalf[;]”

neither the employer’s estimate nor the IRS rate will suffice. 95 F.4th at 1018 (emphasis added).

Relying on Parker, Defendants assert that, because the Sixth Circuit clarified that actual

expenses are to be used in determining whether vehicle costs cause employees to earn less than the

minimum wage, class certification on this issue is prohibited. (Opp’n at PageID 5496.) Plaintiff, in

turn, argues that “[e]ven though FLSA rights are individual, not collective rights, the FLSA has

always recognized that those individual rights can be adjudicated collectively.” (Reply at PageID

5613 (citing 29 U.S.C. § 216(b)).) Plaintiff further asserts that nothing in Parker alters whether

workers may pursue this type of FLSA claim in a collective or class action. (Id.) Plaintiff’s argument

is well-taken.

Taken at face value, the interpretation of Parker that Defendants advance would prevent class

certification in delivery driver wage cases writ large. However, the Sixth Circuit’s conclusion in

Parker is narrower than Defendants advocate:

§ 206(a)(1)(C) mandates that “each” employee be paid at least the

specified minimum wage. By its terms, that is an individual

entitlement, not a generalized collective one. And that entitlement

extends no further than reimbursement of the employee’s actual costs

incurred on his employer’s behalf.

95 F.4th at1017.

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While calculating each individual’s underpayment may prove complex in a collective action,

the court finds that such complexity does not prohibit class certification, should it otherwise be

merited. Defendants’ asserted interpretation of Parker would shift the burden of this payment

arrangement onto employees. However, where the defendants in Parker argued that computing

actual costs would be impossible, the Sixth Circuit indicated that companies more properly bear the

burden of the issues this arrangement creates.

[T]he employers themselves created this situation: first by paying

their drivers the bare minimum wage; then by requiring them to

provide their own vehicles to deliver pizzas on the defendants’

behalf; and finally by cutting it close (at least according to the

allegations here) as to whether they have adequately reimbursed their

drivers for the cost of providing those vehicles.

Id. at 1016.

Thus, the court finds that Parker’s conclusion that actual expenses are to be used for driver

reimbursements does not outright preclude collective action in FLSA delivery driver cases. As such,

the court will proceed with considering the merits of the Motion.

B. Rule 23 Class

Plaintiff moves the court for an Order certifying the Rule 23 Class. In order to obtain class

certification under Rule 23, Plaintiff must show that the class certification prerequisites are met, and

that he, as the class representative, “possess[es] the same interest and suffered the same injury as the

class members [he] seek[s] to represent.” In re Whirlpool Corp., 722 F.3d at 851. The court first

addresses the four requirements of Rule 23(a) before considering whether class certification is

appropriate under Rule 23(b).

1. Rule 23(a)(1) Numerosity

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Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is

impracticable. Fed. R. Civ. P. 23(a)(1). The Sixth Circuit has explained that “[w]hile no strict

numerical test exists, ‘substantial’ numbers of affected consumers are sufficient to satisfy this

requirement.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir. 2012); see also

Castillo v. Morales, Inc., 302 F.R.D. 480, 487 (S.D. Ohio 2014) (stating that “[o]ften, a class of 40

or more members is sufficient to meet the numerosity requirement”).

Here, Plaintiff asserts that the first requirement of Rule 23(a) is satisfied because he expects

that “there are approximately 100 putative class members based on Defendants’ data produced and

representations during depositions.” (Mot. at PageID 5100.) Defendants argue that numerosity has

not been established because “Dietrich does not offer any evidence to establish that any of the

Defendants underpaid him, let alone that all delivery drivers were underpaid.” (Opp’n at PageID

5500.)

The deposition and exhibits cited by Plaintiff include dated and time-stamped delivery driver

logs identifying at least 59 drivers, their wages, and the delivery compensation paid by the employer

at each instance. (Mot. at PageID 5100.) Defendants would have the court conclude that each of the

59 drivers must prove their underpayment before class certification could occur. However, such

proof is not required at this stage. See e.g., In re Whirlpool Corp., 722 F.3d at 852 (“Whirlpool

shipped thousands of Duets to Ohio for retail sale. Evidence of these shipments to retailers is

sufficient to show numerosity of a class consisting of all Ohio residents who purchased a Duet in

Ohio primarily for personal, family or household purposes.”) Furthermore, Defendants provide no

evidence to contradict that which Plaintiff relies upon to establish numerosity.

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Considering Plaintiff’s claim that the class may include approximately 100 members,

combined with the delivery, reimbursement, and wage data from 59 distinct drivers that Plaintiff

cites, the court finds that the numerosity requirement is satisfied.

2. Rule 23(a)(2)–(3) Commonality and Typicality

The Sixth Circuit has explained that “Rule 23(a)(2) requires plaintiffs to prove that there are

questions of fact or law common to the class, and Rule 23(a)(3) requires proof that plaintiffs’ claims

are typical of the class members’ claims.” Young, 693 F.3d at 542. In showing commonality, the

plaintiff must demonstrate that their claims “depend on a common contention of such a nature that

it is capable of classwide resolution—which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Typicality

is met when the named plaintiff’s interests are “aligned with those of the represented group, and in

pursuing his own claims, [he] will also advance the interests of the class members.” Id. The Sixth

Circuit has also stated that, “[t]hese requirements ‘tend to merge’ because both serve as guideposts

for determining whether the interests of the class members will be fairly and adequately protected

in their absence.” Mays v. LaRose, 951 F.3d 775, 793 (6th Cir. 2020).

Here, Plaintiff contends that the commonality requirement is satisfied because the proposed

class consists of employees that were harmed in the same way. (Mot. at PageID 5100.) In describing

Defendants’ allegedly unlawful policies, Plaintiff asserts that Defendants: (1) required their delivery

drivers to provide cars to complete their job duties, (2) paid delivery drivers a tip credit rate per hour,

(3) did not track or reimburse delivery drivers’ actual expenses, and (4) did not reimburse the

delivery drivers for their actual costs. (Id. at PageID 5101.)

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Plaintiff asserts that these policies together resulted in Defendants paying their delivery

drivers less than the minimum wage. (/d.) Defendants counter, as they argued on the prior Motion

for Certification, with respect to the class that was terminated pursuant to the settlement agreement,

that the commonality requirement is not satisfied because the court would have to make

individualized determinations—since the drivers’ actual expenses would vary from driver to driver.

(Opp’n at PageID 5501.)

Defendants cite Tarrify Properties, LLC v. Cuyahoga County, 37 F Ath 1101, 1106 (6th Cir.

2022), for the proposition that the necessity for individualized determinations prohibits certification.

(Opp’n at PageID 5500-01.) In Tarrify, owners of foreclosed properties sued, challenging the

county’s alternative tax foreclosure program, wherein foreclosure proceedings were instituted in a

county board of revision rather than in court, and landowners did not receive the excess equity for

the disposition of their property. /d. at 1105-06. The Sixth Circuit in Tarrify detailed its reasoning

for concluding that class certification was inappropriate:

The key impediment in this case is that the court must ask whether a

given property’s fair market value exceeds the taxes owed at the time

of the transfer to determine who is in the class. Determining fair

market value requires an independent and individualized assessment

of each absent class member’s property. As the appraisal experts on

both sides agree, the valuation of real property depends on many

circumstances, including the size, location, use, and condition of the

property and the relevant market conditions at the time of the

transfer. The market and physical conditions of each property will

vary. So too will the dates of each transfer. As such, a court must

conduct an individualized, fact-intensive, and adversarial process to

determine the fair market value for each property.

Tarrify, 37 F.4th at 1106. Defendants’ argument, that vehicle expenses are similarly difficult

to ascertain as the fair market value of a property, is not well-taken. Indeed, the Sixth Circuit in

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Parker, while noting the difficulty courts may face when calculating damages in this type of class

action, indicated at least one method for managing this issue:

For example, the employee might present prima facie proof that a

reimbursement was inadequate; the employer might then bear the

burden of showing that the reimbursement bore a demonstrable

relationship to the employee’s actual costs; and then the employee

would bear the burden of proving the employer’s reasoning wrong.

Or perhaps such an arrangement might not be appropriate. In any

event, the parties and the district courts might want to consider these

or other ideas on remand.

95 F.4th at 1019.

Furthermore, while each putative class member will have to substantiate the vehicle costs

they incurred on behalf of their employer during the relevant period, there will likely be significant

overlap in terms of the nature of the proof offered and the methodology for the calculation of

damages. For example, the costs will likely involve a handful of discrete categories such as

maintenance, mileage, and depreciation, and the parties may seek to utilize a tailored formula to

calculate actual costs through the use of experts. It is instructive that one of the reasons that the Sixth

Circuit rejected the use of the IRS rate was because it did not closely approximate expenses relevant

to the locality and vehicle characteristics. Id. at 1016–17. Implicitly, it did not rule out courts’ use

of more accurate measures that closely mirror actual costs. Id. Thus, while the court finds that

calculating damages may be an involved process, it finds no basis to conclude at this stage that the

process would be so difficult as to prohibit certification.

When Defendants raised this issue in opposition to the Motion for Certification of class in

that portion of the case that was settled , the court noted that several federal district courts have

found the commonality requirement satisfied in delivery driving related under-reimbursement cases,

even when individualized assessments are necessary to calculate damages. See Brandenburg v.

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Cousin Vinny’s Pizza, LLC, No. 3:16-CV-516, 2018 WL 5800594, at *4 (S.D. Ohio Nov. 6, 2018)

(explaining that “[w]hile [the] [d]efendants’ argument may, theoretically, be possible for some

delivery drivers, the need for individualized inquiry and calculation of damages is not enough to

defeat commonality under Rule 23(a)(2)”); see also Waters v. Pizza to You, LLC, No. 3:19-CV-372,

2021 WL 229040, at *7 (S.D. Ohio Jan. 22, 2021) (“[w]hile the extent of [the] [d]efendants’

under-reimbursement might be different from driver to driver or location to location the need for

individualized inquiry and calculation of damages alone is not enough to defeat commonality”); see

also McFarlin v. Word Enters, LLC, No. 16-CV-12536, 2017 WL 4416451, at *3 (E.D. Mich. Oct.

5, 2017) (determining that “the fact that there will need to be individualized inquiry in this case as

to the amount of damages for each delivery driver is not enough to invalidate commonality”).

Defendants would have the court reverse course in light of Parker, as discussed above.

(Opp’n at PageID 5501–02.) However, the court finds that the Sixth Circuit’s directive in Parker that

actual costs, instead of estimates, must be used in delivery driving related under-reimbursement

cases, does not so drastically change the nature of the calculations that class certification would now

be prohibited. Thus, the court continues to find that the above-cited decisions are well-reasoned and

persuasive, and support the court’s conclusion that the question of whether Defendants’

reimbursement policy caused their delivery drivers’ wages to fall below the minimum wage is a

common question that is capable of class-wide resolution.

With respect to typicality, Defendants argue that the court should deny class certification for

want of typicality for two reasons: 1) Defendants contend that Dietrich’s claims are not typical of

other proposed class members because he has failed to show that he suffered any injury or

underpayment, thus he cannot adequately represent the class (Opp’n at PageID 5502); and 2)

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Defendants argue that, “[e]ven if he could show some underpayment, that would not establish that

other class members were similarly underpaid. The individualized nature of each delivery driver’s

claim destroys any finding of typicality.” (Id.)

In the Second Amended Complaint, Dietrich alleges that he worked at Defendants’

establishments during the relevant period and that each store required him to use his own vehicle to

deliver pizzas. (Second Am. Compl. at ¶¶ 271, 275, ECF No. 66.) As a result, Dietrich alleges that

he “has purchased gasoline, vehicle parts and fluids, automobile repair and maintenance services,

automobile insurance, suffered automobile depreciation and damage, automobile financing, licensing

and registration costs” all for the primary benefit of his employer. (Id. ¶ 280.) Dietrich further asserts

that the reimbursement Defendants provided for the use of his vehicle was insufficient to cover the

costs, thus Defendants failed to pay him the minimum wage as required by law. (Id. ¶¶ 276, 290.)

Defendants do not cite to evidence in the record to contradict Dietrich’s assertion that he was

underpaid. (Opp’n at PageID 5502.)

Defendants first assert that, because Dietrich has not proven that his actual expenses

exceeded his reimbursements at this stage, the typicality requirement is not satisfied. (Opp’n at

PageID 5502.) Plaintiff asserts that Defendants’ reimbursement policies caused him and other

delivery drivers to be paid less than is required by both the FLSA and Ohio law, and that “typical

does not mean identical, and the typicality requirement is liberally construed.” (Mot. at PageID 5101

(citing (Swigart v. Fifth Third Bank, 288 F.R.D. 177 (S.D. Ohio 2012)).) As courts in this circuit

have noted, “a plaintiff’s claim is typical if it arises from the same event or practice or course of

conduct that gives rise to the claims of other class members, and if his or her claims are based on the

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same legal theory.” Kirkbride v. Kroger Co., 349 F.R.D. 160, 186 (S.D. Ohio 2025) (citing In re Am.

Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)).

Defendants do not dispute that Dietrich was a driver during the relevant period, nor do they

dispute that he was subject to the challenged reimbursement policy. Rather, they argue that Plaintiff

must prove that his actual expenses were greater than the reimbursement provided prior to

certification. (Opp’n at PageID 5502.) The court finds no basis to depart from its prior reasoning

that, “while the parties dispute whether the reimbursement [Branning] received exceeded his actual

delivery-driving related expenses, the court concludes that resolving that dispute would amount to

a trial on the merits, which is not appropriate at this stage of the litigation.” (ECF No. 104 at PageID

4527 (citing In re Whirlpool Corp., 722 F.3d at 851–52 (explaining that “district courts may not turn

the class certification proceedings into a dress rehearsal for the trial on the merits”)).) Accordingly,

the court finds that the typicality requirement is met.

3. Rule 23(a)(4) Adequacy of Representation

Rule 23(a)(4) requires that, “the representative parties will fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has set forth a two-pronged test for

determining adequacy of representation: “1) the representative must have common interests with

unnamed members of the class, and 2) it must appear that the representatives will vigorously

prosecute the interests of the class through qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d

1069, 1083 (6th Cir. 1996).

The court finds that the first prong is satisfied because Plaintiff is challenging the same

allegedly unlawful reimbursement policy and seeking the same relief as the putative class. As for the

second prong, Plaintiff asserts that he is “ready, willing, and able to fulfill his duties and has done

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so to date.” (Mot. at PageID 5102.) Moreover, Plaintiff’s counsel “Biller & Kimble, LLC, has

established an expertise in wage and hour cases in general, and specifically in pizza delivery driver

wage and hour cases.” (Id. at PageID 5103.)

The court concludes that Plaintiff is an adequate class representative as he has continuously

pursued his claims since the outset of this litigation. Further, the court finds that Plaintiff’s counsel

is qualified to represent the class, as several courts have recognized their expertise in pizza delivery

driving wage and hour litigation. See Waters, 2021 WL 229040, at *8 (S.D. Ohio Jan. 22, 2021)

(recognizing Plaintiff’s counsel’s expertise in pizza delivery driver litigation); see also Mullins v.

S. Ohio Pizza, Inc., No. 1:17-CV-426, 2019 WL 275711, at *5 (S.D. Ohio Jan. 18, 2019) (same);

Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-CV-516, 2019 WL 6310376, at *6 (S.D. Ohio

Nov. 25, 2019) (same). Consequently, the court finds that adequacy of representation is

demonstrated.

4. Rule 23(b)(3) Predominance and Superiority

Having determined that Plaintiff has satisfied the requirements of Rule 23(a), the court turns

to the issue of whether Plaintiff has satisfied one of the three conditions set forth in Rule 23(b). Rule

23(b) provides:

(b) Types of Class Actions. A class action may be maintained if Rule

23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class

members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual

class members that would establish incompatible standards of

conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other

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members not parties to the individual adjudications or would

substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as

a whole; or

(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy. The

matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy

already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of

the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b). Plaintiff asserts that it meets the third requirement, pursuant to Rule 23(b)(3).

He maintains that common questions of law and fact predominate. (Mot. at PageID 5103.)

The Sixth Circuit has explained that “[t]o meet the predominance requirement, a plaintiff

must establish that issues subject to generalized proof and applicable to the class as a whole

predominate over those issues that are subject to only individualized proof.” Young, 693 F.3d at 544.

In addressing the superiority requirement, courts consider “the difficulties likely to be encountered

in the management of a class action.” Id. at 545. Rule 23(b)(3) lists four factors that are pertinent to

the issue of superiority: “(A) the class members’ interests in individually controlling the prosecution

or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy

already begun by or against class members; (C) the desirability or undesirability of concentrating

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the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class

action.” Fed. R. Civ. P. 23(b)(3)(A)–(D).

Plaintiff asserts that common issues of law and fact predominate because Defendants used

the same reimbursement methodology for all of their delivery drivers. That method, of reasonable

approximation, is not permissible, as clarified in Parker. (Mot. at PageID 5104 (citing Parker, 95

F.4th 1009 at 1016).) Moreover, Plaintiff asserts that the claims of Plaintiff and the putative class

rise and fall on Defendants’ reimbursement and pay policies and that the proof needed to substantiate

the claims will be common to all class members. (Id.) In contrast, Defendants argue that the instant

claims require highly individualized assessments to determine whether vehicle expenses exceeded

the reimbursement rate. Thus, a common policy cannot form the basis of a class-wide claim that

delivery drivers were underpaid because the individualized inquiries are not limited to determining

damages, but are also necessary to determine whether there is any liability at all. (Opp’n at PageID

5501.)

Defendants’ argument is not well-taken. The court finds that there are common issues of law

and fact which make this case proper for certification. See e.g., McFarlin v. Word Enters., No.

16-CV-12536, 2017 WL 4416451, at *4 (E.D. Mich. Oct. 5, 2017) (“Although the damages for each

delivery driver will be an individual determination, the damages arise from a course of conduct that

is applicable to the entire class: Defendants’ payroll practices. Therefore, the predominance

requirement is met.”)

Turning to the superiority requirement, the court finds that all of the factors listed in Rule

23(b)(3)(A)–(D) weigh in favor of certification. Here, there is no evidence that the putative class has

an interest in maintaining a separate action (factor one), nor is there any indication that there is

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similar litigation pending in another court (factor two). The court also concludes that judicial

efficiency “weighs in favor of concentrating the litigation of the claims in this court” (factor three)

because the claims in this case involve policies affecting a large number of employees, and a

resolution on the matter “avoids competing decisions on the issues and offers finality.” Waters, 2021

WL 229040, at *10. Lastly, the court acknowledges, in light of Parker, that there will be some

difficulty in calculating damages for each class member (factor four). But the court does not find that

the process would be so prohibitive as to prevent class certification.

5. Rule 23 (c)(2) Notice

Rule 23(c)(2) states that, “[f]or any class certified under Rule 23(b)(3) . . . the court must

direct to class members the best notice that is practicable under the circumstances, including

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P.

23(c)(2)(B).

Plaintiff attached a proposed Rule 23 notice (“Proposed Rule 23 Notice”), to be distributed

through U.S. mail and e-mail as an exhibit to the Motion for Certification. (ECF No. 141–5 at

PageID 5434–37.) Defendants lodge no specific objections to the proposed Rule 23(c)(2) notice.

The proposed Rule 23(c)(2) notice advises each member that the court will exclude them

from the class if requested by a specific date. (Ex. 5 at PageID 5437, ECF No. 141–5 (“Class

Members who wish to opt out from the Lawsuit entirely must submit a timely and valid opt out

statement to Class Counsel within 60 days of this notice.”).) It further notes that the judgment,

whether favorable or not, will include all members who do not request exclusion, with respect to the

state law claims. (Id. at PageID 5435 (“If you do nothing, you automatically join the case, but only

for the state law claims. You do not join for the federal law claims.”).) The notice also states that an

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individual may enter an appearance through their own counsel. (Id. at PageID 5437 (“You also have

the right to obtain your own counsel and file your own lawsuit.”).)

Finding that the proposed Rule 23(c)(2) notice clearly defines the action and includes the

requisite information, and given that Defendants identify no deficiencies in the proposed notice, the

court finds that the proposed notice constitutes the best notice practicable. Fed. R. Civ. P. 23(c)(2).

B. FLSA Conditional Notice

1. Similarly Situated

Dietrich moves for conditional notice pursuant to Section 216(b) of the FLSA. As discussed,

under 29 U.S.C. § 216(b) of the FLSA, an employee may bring an action on behalf of herself and

others “similarly situated.” 29 U.S.C. § 216(b). Unlike a Rule 23 action, “an FLSA collective action

is not representative—meaning that ‘all plaintiffs in an FLSA action must affirmatively choose to

become parties by opting into the collective action.’” Clark v. A&L Homecare and Training Ctr.,

LLC, 68 F.4th 1003, 1009 (6th Cir. 2023) (quoting Canaday v. Anthem Companies, Inc., 9 F.4th 392,

402 (6th Cir. 2021)). To prevail at the initial notice stage, a plaintiff must show a “strong

likelihood”1 that those employees are similarly situated to the plaintiff[.]” Clark, 68 F.4th at 1011.

The Sixth Circuit has noted that, “[w]hether other employees are similarly situated for the

purpose of joining an FLSA suit typically depends on whether they performed the same tasks and

were subject to the same policies . . . .” Id. at 1010. Here, Plaintiff contends that the delivery drivers

are similarly situated because they have been subjected to the same terms of employment and

1 Prior to Clark, courts would facilitate notice of an FLSA suit upon a modest

factual showing that the parties were similarly situated. Id. at 1008. However, in

Clark, the Sixth Circuit established a heightened standard, requiring that plaintiffs

demonstrate a “strong likelihood” that employees are similarly situated. Id. at

1011.

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compensation, have the same job duties, were subject to the same policies which required them to

use their own cars for work, and were all not compensated for their actual expenses prior to January

1, 2020. (Mot. at PageID 5107–08.) Thus, they argue that the proof they offer exceeds the “strong

likelihood” showing that Plaintiff and other delivery drivers are similarly situated. (Id.)

Defendants reprise their arguments that Parker necessitates a highly individualized analysis

and that the ultimate question is “not whether the reimbursement practice itself constituted a

violation of the FLSA, but rather whether Dietrich’s or other drivers’ vehicle-related costs cut into

the minimum wage.” (Opp’n at PageID 5504.) Defendants argue that the central question cannot be

addressed on a collective basis, thus conditional certification should not be granted. (Id.)

As discussed above, the court does not find that Parker prohibits conditional notice. After

considering the evidence in the record and relevant law, the court finds that Plaintiff has carried his

burden of showing a strong likelihood that he and the delivery drivers are similarly situated because

Plaintiff has sufficiently demonstrated that Defendants’ delivery drivers were subject to a

compensation policy that caused their wages to fall below the minimum wage.

2. Employer Liability

Defendants argue that Dietrich cannot seek conditional notice based on the theory that Ryan

Rose, rather than BDS Brunswick, was his employer, because Ryan Rose was not Dietrich’s

employer as a matter of law. (Opp’n at PageID 5504–05.) According to Defendants, despite the fact

that Ryan Rose was CEO of the corporate holding company, he did not have operational control of

significant aspects of the company’s day-to-day operations. (Opp’n at PageID 5505.)

Plaintiff argues that each of the corporate locations implicated were owned and operated by

Defendant Ryan Rose, thus Ryan Rose was his employer as a matter of law. (Reply at PageID 5616.)

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The court finds that Plaintiff has put forth significant evidence that Ryan Rose was involved in the

companies’ operations generally, and in decisions regarding driver compensation specifically.

In the cited Deposition (ECF No. 142), Ryan Rose states that he is the CEO of Romeo’s Pizza

Holdings, which is the parent company of Romeo’s Pizza Franchise. (Sealed Dep. of Ryan Rose at

PageID 5443, ECF No. 142.) He further states that he was involved in the decision to maintain

guidelines the corporate stores were required to follow (Id. at PageID 29); that he is responsible for

hiring corporate leadership (Id. at PageID 5457); and he specifically states that he was involved in

a decision regarding the change to driver reimbursement rates (Id. at PageID 57).

Defendants also rely on Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir.

1991), superseded by rule on other grounds, to assert that conditional notification should not

proceed. In response, Plaintiff asserts that this argument is premature. (Id. at PageID 5609.)

Plaintiff’s argument is well-taken. Dole is a decision at the summary judgment stage of a litigation,

and the Sixth Circuit in Dole emphasized that the question of whether an officer has operational

control is a highly fact-specific inquiry. 942 F.2d at 965.

Considering the relevant law and evidence presented, the court finds that Ryan Rose’s

position at the company does not prohibit the giving of conditional notice under the FLSA.

3. Equitable Tolling

Plaintiff requests that the court exercise equitable tolling of the putative FLSA collective,

given the length of time that has elapsed since the case began. (Mot. at PageID 5108.) Defendants

assert that, even if conditional notice were appropriate, Plaintiff’s request for equitable tolling should

be denied or, in the alternative, deferred to a later stage. (Opp’n at PageID 5508.) Defendants

maintain that, “[n]othing prevented Dietrich from pursuing conditional certification earlier, except

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his own delay.” (Id.) Plaintiff argues that equitable tolling is appropriate because 1) FLSA’s remedial

purpose warrants liberally granting equitable tolling; 2) diligence is measured by whether potential

plaintiffs opted-in when given the opportunity, not by whether those plaintiffs chose to initially bring

a lawsuit; and 3) even if Dietrich’s diligence were relevant, he has been diligent in bringing this suit.

(Reply at PageID 5618.)

While Plaintiff asserts that equitable tolling should be granted at this stage, as discussed

above, Plaintiff acknowledges that, “Defendants are correct that the Court could wait until after

FLSA notice is distributed” to consider the parties’ arguments regarding equitable tolling. (Id. at

PageID 5619.) Courts in this circuit have reached differing conclusions on whether, after Clark, 68

F.4th 1003, the consideration of equitable tolling is premature prior to the opt-in stage. Contrast,

Adames v. Ruth’s Hosp. Group, Inc., No. 1:22-CV-00036, 2024 WL 1533171, at *9 (N.D. Ohio Apr.

9, 2024) (“ Plaintiff lacks standing to raise the issue of equitable tolling on behalf of potential opt-in

plaintiffs because it would adjudicate rights and responsibilities with respect to individuals not

within the court’s jurisdiction.”), with Hyde v. Fricker’s USA, LLC, No. 1:22-CV-591, 2024 WL

4197903, at *5 (S.D. Ohio Sept. 16, 2024) (“The Court finds that Jones, its progeny, and the

pre-Clark decisions cited in Jones, are inapposite. Plaintiff’s request is not premature, and she

therefore has standing to proceed. The Court will consider whether the statute of limitations should

be tolled with respect to potential opt-in plaintiffs.”).

Given that the parties here agree that deferral would not be inappropriate in this case, the

court declines to consider the parties’ equitable tolling arguments at this stage.

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4. FLSA Notice

Accordingly, the court grants Plaintiff’s Motion for conditional notice, pursuant to Section

216(b) of the FLSA. Defendants raise no opposition to the content of the Proposed FLSA Consent

to Join (Ex. 5 at PageID 5438), thus the court authorizes the proposed notice. The opt-in period shall

be 60 days from the date the Notice is mailed. Defendants shall, within 14 days of the date of this

Order, provide Plaintiff with a list of the full name and last known home address of each current and

former employee fitting the class description, their last known telephone number and personal email

address, dates of employment, and job title. If the parties are unable to reach an agreement, Plaintiff

shall file a response to Defendants’ Objections within 10 days of the date of this Order, and the court

will resolve the conflict.

IV. CONCLUSION

For the foregoing reasons, the court grants Plaintiff’s Combined Motion for Certification

(ECF No. 141). In doing so, the court hereby approves the giving of conditional notice to potential

opt-in plaintiffs, pursuant to § 216(b) of the FLSA, in respect to Count One, and certifies a Rule 23

class action in regard to Counts Two, Three, Four, and Five. The court also grants the request to

appoint Plaintiff Bradley Dietrich as class representative, and the law firm of Biller & Kimble, LLC

as lead counsel for the putative class. Notice, as approved by the court, may now be given to the

parties.

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

August 29, 2025

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