United States District Court, M.D. Florida, Tampa Division
LUIS MALDONADO, on behalf of himself and those similarly situated, Plaintiffs,
CALLAHAN'S EXPRESS DELIVERY, INC. and PATRICK CALLAHAN, Defendants.
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE
matter is before the Court pursuant to the Motion for Summary
Judgment (Doc. # 98), which was filed by Luis Maldonado,
“on behalf of himself and those similarly situated,
” on December 1, 2017. Defendants Patrick Callahan and
Callahan's Express Delivery, Inc. filed a Response in
Opposition (Doc. # 99) on December 15, 2017. For the reasons
that follow, the Court grants the Motion in part and denies
the Motion in part.
Express Delivery and Callahan contract to make local delivery
of mattresses, furniture, and other goods on behalf of retail
customers, such as Mattress Firm and IKEA. (Doc. # 98 at 2).
Callahan is “the proprietor of Callahan's Express
Delivery, Inc.” (Callahan Aff. Doc. # 99-1 at ¶
2). Maldonado was employed by Defendants from June of 2011
through June of 2012. (Maldonado Decl. Doc. # 98-3 at ¶
5). Maldonado began his employment as a driver's helper
and then became a driver. (Id. at ¶ 6).
Throughout his employment, Maldonado states that he was paid
a “piece rate” of $10.00 per delivery.
(Id.). Callahan, on the other hand, asserts that
drivers were paid $20.00 for each completed delivery.
(Callahan Aff. Doc. # 99-1 at ¶ 18). Maldonado signed an
“Independent Contractor's Agreement” that
states, among other things, “The parties' intention
is that Contractor be an independent contractor and not the
employee of the Company and that Contractor retains sole and
absolute discretion in the manner and means [of] carrying out
the services described in [the Agreement].” (Doc. #
99-1 at 5). The services described in the Agreement are
“driver on a truck, delivering for the Company, and
requiring a two man team.” (Id. at ¶ 1).
Although the Agreement is dated November 13, 2010, Maldonado
states in his declaration that his employment began in June
of 2011. (Maldonado Decl. Doc. # 98-3 at ¶ 5).
claims Callahan told him where and when Maldonado should
report for work. (Id. at ¶ 7).
“Defendants and/or their clients gave [Maldonado] a
pre-set schedule of . . . deliveries for the day, and gave
[Maldonado] a specific window of time within which each
delivery had to be made.” (Id. at ¶ 10).
Maldonado indicates he “had no say” with respect
to his schedule and he “could not choose where to work,
when to work, the hours of the work, or the number or
location of [the] deliveries each day.” (Id.
at ¶ 11). In stark contrast, Callahan states that
drivers, such as Maldonado, “were not required to work
any specific days, times, hours or shifts” and
“could choose to work, or not to work, on a given day
depending upon their availability.” (Callahan Aff. Doc.
# 99-1 at ¶¶ 14, 17). All deliveries took place
within the state of Florida. (Maldonado Decl. Doc. # 98-3 at
to Maldonado, he typically worked 12 or more hours per day
between 6 and 7 days a week. (Id. at ¶¶
14-15). Although he routinely worked between 60 and 84 hours
per week, he was not paid overtime compensation.
(Id. at ¶¶ 15, 23). He states that he was
required to notify Defendants if he had to miss a day of work
for any reason and faced termination if he missed scheduled
work days. (Id. at ¶ 16). But Callahan avers
that drivers “were not specifically required to notify
[Callahan] if they were unable to work.” (Callahan Aff.
Doc. # 99-1 at ¶¶ 20-21). And if a driver failed to
show up for a scheduled delivery, “they may not have
been utilized for future services, but were not terminated by
parties agree that Maldonado supplied some of his own tools
such as “basic hand tools” and his personal cell
phone. (Maldonado Decl. Doc. # 98-3 at ¶¶ 20-21).
Callahan confirms that Maldonado supplied “necessary
tools to perform the job” such as “screwdrivers,
cordless drill, smart phone, drill bits, and pliers.”
(Callahan Aff. Doc. # 99-1 at ¶ 12). Defendants, on the
other hand, supplied 10, 000 pound trucks, fuel, and
insurance. (Maldonado Decl. Doc. # 98-3 at ¶ 20).
January 31, 2013, Maldonado initiated this action by filing a
single-count complaint for violations of the Fair Labor
Standards Act against Mattress Firm, Inc., Callahan's
Express Delivery, Inc., and Patrick Callahan. (Doc. # 1).
Mattress Firm filed an Answer on March 12, 2013. (Doc. # 20).
The Callahan Defendants filed a Motion to Compel Arbitration
(Doc. # 23) on March 20, 2013. On April 24, 2013, the Court
granted the Callahan Defendants' Motion to Compel
Arbitration and directed the parties to advise the Court
regarding whether Maldonado's claims against Mattress
Firm should be stayed pending resolution of the arbitration
proceedings. (Doc. # 34). On April 25, 2013, Mattress Firm
filed a separate Motion requesting that the claims against it
also be submitted to arbitration. (Doc. # 37). On June 3,
2013, the Court granted the Motion “to the extent that
the Court compels arbitration of Maldonado's claim
against Mattress Firm.” (Doc. # 50 at 19). Because all
of Maldonado's claims were ordered to be submitted to
arbitration, the Court closed the case on June 3, 2013.
January 12, 2017, Maldonado filed a Motion to Reopen the
Case. (Doc. # 51). Maldonado explained that he filed a Demand
for Arbitration with the American Arbitration Association in
order to commence arbitration proceedings against the
Callahan Defendants, but the Callahan Defendants
“repeatedly and willfully refused to comply with the
AAA's requirements for maintaining a case in
arbitration.” (Id. at 2). Maldonado stated he
paid all fees due to the AAA in a timely manner, but the
Callahan Defendants - the parties that made the demand for
arbitration - failed to timely pay the arbitrator, failed to
respond to discovery orders entered in the arbitration, and
unduly delayed the arbitration process. (Id. at
2-3). Maldonado submitted to this Court an Order issued by
the AAA on July 27, 2016, reflecting that the arbitration was
administratively closed. (Doc. # 51-1). On January 30, 2017,
the Court entered an Order denying without prejudice the
Motion to Reopen the Case and requesting more information
regarding the failed arbitration. (Doc. # 52).
April 18, 2017, Maldonado renewed his Motion to Reopen the
Case. (Doc. # 53). The Court entered an Order on May 3, 2017,
reopening the case with respect to the Callahan Defendants
but denying the Motion as to Mattress Firm. (Doc. # 59). The
Court explained that Maldonado was required to proceed
against Mattress Firm through arbitration and “the
record reflects that no such proceeding was instituted by
Maldonado against Mattress Firm in the almost four years
since the Court compelled arbitration.” (Id.
the case reopened as to the Callahan Defendants only, the
Court entered a Fast Track Scheduling Order on May 4, 2017.
(Doc. # 60). Thereafter, on June 2, 2017, Maldonado filed a
Notice reflecting that six individuals (Johnny Machado,
Ed-Joacin Melendez, Javier Aguilar, Alex Armon, Artis
Patterson, and Mario Calo) executed Consent to Join
Collective Action forms. (Doc. # 63). Machado filed a
declaration containing statements similar to those made by
Maldonado. (Machado Decl. Doc. # 98-4). Callahan states
Maldonado, Machado, and Patterson were “independent
contractor drivers” and Armon, Melendez, and Aguilar
were “driver's helpers who were neither employees
nor independent contractors.” (Callahan Aff. Doc. #
99-1 at ¶¶ 5-6). Callahan explains that drivers had
the prerogative to hire helpers, and if they did, the
individual drivers, not Defendants, would pay the helpers.
(Id. at ¶ 8). None of the helpers filed
declarations or affidavits and the parties have not
demarcated the difference between a driver and a helper.
Neither Callahan nor Callahan's Express Delivery filed an
Answer to the Complaint and they have not presented any
affirmative defenses. The deadline for Defendants to do so
has long expired. In addition, Maldonado has not moved for
conditional certification of an opt-in class and issuance of
notice under 29 U.S.C. § 216(b).
26, 2017, the parties participated in a mediation conference
but reached an impasse. (Doc. # 70). On November 8, 2017, the
Court issued a Case Management and Scheduling Order setting a
pretrial conference for February 5, 2018, and a jury trial
for the February 2018 trial term. (Doc. # 97). On December 1,
2017, Maldonado filed a Motion for Summary Judgment. (Doc. #
98). The Motion is ripe for the Court's review. (Doc. #
99). As explained below, the Court grants the Motion in part
and denies the Motion in part.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Mize
v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th
Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is
material if it may affect the outcome of the suit under the
governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). The moving party bears the initial
burden of showing the court, by reference to materials on
file, that there are no genuine issues of material fact that
should be decided at trial. Hickson Corp. v. N. Crossarm
Co., Inc. 357 F.3d 1256, 1260 (11th Cir. 2004)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“When a moving party has discharged its burden, the
non-moving party must then ‘go beyond the pleadings,
' and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file, '
designate specific facts showing there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc.,
64 F.3d 590, 593-94 (11th Cir. 1995)(citing Celotex,
477 U.S. at 324).
there is a conflict between the parties' allegations or
evidence, the non-moving party's evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party's favor. Shotz v. City of
Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003). If a
reasonable fact finder evaluating the evidence could draw
more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, the court should
not grant summary judgment. Samples ex rel. Samples v.
City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988).
(citing Augusta Iron & Steel Works, Inc. v.
Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.
1988)). However, if the non-movant's response consists of
nothing “more than a repetition of his conclusional
allegations, ” summary judgment is not only proper, but
required. Morris v. Ross, 663 F.2d 1032, 1034 (11th