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Dilts v. Penske Logistics

April 26, 2010


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Plaintiffs' renewed motion for class certification. (Doc. No. 55.)

Also before the Court are Defendant's*fn1 opposition, (Doc. No. 63) Plaintiffs' reply, (Doc. No. 65) Defendant's supplemental opposition, (Doc. No. 69) and Plaintiffs' supplemental reply. (Doc. No. 69.) After fully considering the merits of this matter, the Court GRANTS Plaintiffs' motion.


This case presents the Court with claims regarding Defendant's failure to provide lunch and rest breaks, pay overtime compensation, reimburse business expenses, and pay wages due.

Defendant Penske "operates a warehouse, distribution and inventory management services throughout the State of California, and hires hourly employees to engage in the inventory, delivery and installation of a multitude of vendor products." (Memo. ISO Motion at 7.) "During the proposed class period, Penske provided dedicated logistics services to the following customers in California: Big Lots, Pier One, Pepsi, Calvey Packing, KHL, Cardinal Healthcare, Flex Feet, KB Homes, Longs Drugstore [now known as] CVS Drugstore, CSK Auto Parts, Mission Foods, Masterbox, Rite Aid, Sears Lights, Fromica, Masco, Fresno Bee Newspaper, JM Eagle and Whirlpool." (Doc. No. 36 at 2; see also Memo. ISO Motion at 7.) The Whirlpool account is the focus of this action. (Memo. ISO Motion at 1.)

To service the Whirlpool account, Defendant "assigned a particular group of hourly employees known as 'driver/installers' (who hold a Class 'B' commercial driver's license) and their 'helpers' or 'installers' (who generally do not hold a commercial vehicle license) to engage in both the off-site delivery and installation of appliances." (Id. at 7.) These employees "typically work shifts exceeding 10 hours" and their delivery schedules are created by "a company-wide algorithm program (sic) that is designed to maximize productivity in a given geographic territory and to fully utilize the 'driver/installer's' commercial hours of service limits imposed by state and federal regulations." (Id. at 8.)

All three lead plaintiffs worked "out of Whirlpool's Ontario, California facility." (Opp. at 4, 5, & 6.) Both Lead Plaintiff Rios and Lead Plaintiff Dushaj were employed as "installers" while Lead Plaintiff Dilts worked as a "driver/installer." (Memo. ISO Motion at 17.)

Defendant "used a uniform dispatch record that identified a delivery/installation schedule, but did not schedule meal periods for the proposed class." (Id. at 8.) Driver/installers were required to document their lunch period on "a pre-printed area on [the dispatch record] form." (Id.) "Responsibility to prepare the dispatch log rested solely with the driver/installer; the installer or helpers did not maintain such records." (Id.) Defendant "provided each driver/installer a Nextel device for communication with the dispatchers, supervisor and customers during the day" but "did not require the driver/installer teams to use the Nextel to notify the company of meal or rest periods."*fn2 (Id.)

Because Defendant "expected" the Plaintiffs to take their meal breaks, they utilized "a systematic policy of automatically deducting 30-minutes of work time [to account for those] daily meal periods." (Opp. at 2; Memo. ISO Motion at 9.) "The deduction was taken without inquiry into whether the employee was actually provided with a timely 30-minute uninterrupted and duty-free meal period or not." (Memo. ISO Motion at 9.) Defendant also provided no means for "the employee to override the 'auto-deduction' for any day that a meal period was not provided." (Id.)

In addition, Defendant's "business practices . . . led to an environment that uniformly discouraged and/or prevented [Plaintiffs] from taking meal and rest breaks. Because many [Plantiffs] regularly work overtime hours, the common impact of the 'auto-deduction' is magnified because it results in direct loss of 'premium' or 'overtime' wages." (Id. at 10 (emphasis omitted).)


Motions for class certification proceed under Rule 23 of the Federal Rules of Civil Procedure. The question, however, "is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v Carlisle & Jacquelin, 417 US 156, 178 (1974) (quoting Miller v Mackey Int'l., 452 F 2d 424 (5th Cir. 1971)) (internal quotation marks omitted).

Rule 23(a) provides four requirements that must be met in any class action: (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. Fed. R. Civ. P. 23(a). A proposed class must also satisfy one of the three subdivisions of Rule 23(b).

Plaintiffs bear the burden of establishing that their case meets Rule 23's requirements. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977); W. States Wholesale, Inc. v. Synthetic Indus., Inc., 206 F.R.D. 271, 274 (C.D. Cal. 2002). In evaluating this showing, the Court "is bound to take the substantive allegations of the complaint as true." Blackie v Barrack, 524 F.2d 891, 901 n.17 (9th Cir 1975). It may also "consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case." Hanon v Dataproducts Corp., 976 F 2d 497, 509 (9th Cir 1992). However, weighing competing evidence is inappropriate at this stage of the litigation. See Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003).



Although it is not explicitly spelled out in Rule 23, Courts require an adequate class definition before they will certify a class. This definition must identify "a distinct group of plaintiffs whose members [can] be identified with particularity." Lerwill v. In-flight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). This Court's Order denying certification focused on this issue. (See Doc. No. 52 (Prior Order).) Plaintiffs' six proposed classes had two significant problems. First, "Plaintiffs[] . . . intended these classes to cover only employees working on the Whirlpool account" but did not make that explicit in their class definitions. (Id. at 1--2.) Second, it would have been extremely difficult to determine class membership without a merits determination. (Id. at 2.)

In their renewed motion for certification, Plaintiffs request certification of one class and twelve subclasses.*fn3 The class consists of "349 hourly appliance delivery drivers and installers in California who were assigned to its state-wide Whirlpool account." (Memo. ISO Motion at 1.) The subclasses are as follows:

* Subclass One: All Class Members who had 30 minutes wages deducted every shift by Defendants' automatic meal period time deduction (Wage Deduction Subclass)

* Subclass Two: All Class Members who received meal periods more than five hours after clocking in during the Class Period, as shown by defendants' time records, dispatch logs, or other company records (Late Meal Period Subclass)

* Subclass Three: All Class Members who worked shifts more than 10 hours but less than 12 hours during the Class Period (Second Meal Subclass A)

* Subclass Four: All Class Members who worked shifts more than 12 hours during the Class Period (Second Meal Subclass B)

* Subclass Five: All Class Members who worked shifts between 5 five hours and one minute and 10 hours during the Class Period whose time records show no meal period taken (General Meal Period Subclass)

* Subclass Six: All Class Members who worked shifts in excess of three and one-half hours during the Class Period (Rest Period Subclass)

* Subclass Seven: All Class Members subject to Defendants' policy during the Class Period requiring tools but not reimbursing the costs (Un-reimbursed Tools Subclass)

* Subclass Eight: All Class Members subject to Defendants' policy during the Class Period of not reimbursing the costs for lost or stolen tools (Replacement Tools Subclass)

* Subclass Nine: All Class Members subject to Defendants' policy during the Class Period of not reimbursing the costs of tools purchased in addition to those listed as required (Additional Tools Subclass)

* Subclass Ten: All Class Members whose pay records during the Class Period were inaccurate ...

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