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Maldonado v. Callahan's Express Delivery, Inc.

United States District Court, M.D. Florida, Tampa Division

January 12, 2018

LUIS MALDONADO, on behalf of himself and those similarly situated, Plaintiffs,



         This 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.

         I. Background

         Callahan's 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).

         Maldonado 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 ¶ 9).

         According 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 [Callahan].” (Id.)

         The 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).

         II. Procedural History

         On 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. (Id.).

         Yet, on 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).

         On 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. at 4).

         With 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).

         On June 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.

         III. Legal Standard

         Summary 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).

         An 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).

         If 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 Cir. 1981).

         IV. Analysis

         A. FLSA ...

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