United States District Court, E.D. Michigan, Northern Division
PAUL WESTLEY, individually and on behalf of similarly situated persons, Plaintiff,
CCK PIZZA COMPANY, LLC and CHRIS SCHLOEMANN, Defendant.
ORDER GRANTING MOTION TO COMPEL DEPOSITIONS AND
DENYING EXPENSES INCLUDING ATTORNEY'S FEES
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
November 20, 2018, Plaintiff Paul Westley filed a complaint
against Defendants CCK Pizza Company, LLC and Chris
Schloemann. ECF No. 1. Plaintiff alleges that Defendants have
failed to adequately reimburse Defendants' employees for
their labor in violation of the Fair Labor Standards Act
(“FLSA”) and the Michigan Wage Law. Id.
31, 2019, Plaintiff filled a motion for conditional
certification. On June 4, 2019, the motion was granted based
on Plaintiff's showing that potential plaintiffs were
sufficiently similarly situated for conditional class
certification. In total thirteen additional Plaintiffs have
opted into the class. ECF No. 4, 21, 22, 41, and 43.
1, 2019, Defendants filed a motion to compel the depositions
of the named Plaintiff Paul Westley and six opt-in
Plaintiffs: (1) Emajean Westley, (2) Jeffrey Bourcier, (3)
James Sheufelt, (4) Emily Reilly, (5) Bryan Stevens, and (6)
Joshua Heinz. ECF No. 37. For the following reasons the
motion will be granted.
to Plaintiff's Amended Complaint, Defendants CCK Pizza
Company (“CCK”) and Chris Schloemann own and
operate numerous Domino's Pizza franchise
stores. ECF No. 19 at PageID.351. Schloemann is an
owner, officer and director of CCK. Id. While in
this capacity, Schloemann implemented the pay rate at issue
and has overseen and enforced CCK's pay practices.
Id. Defendants' Domino's stores employ
delivery drivers primarily to deliver food items to
customers. Id. at PageID.352. Defendants require
their drivers to maintain and pay for safe, legally operable,
and insured automobiles when delivering the food items.
Id. The drivers incur costs for gasoline, vehicle
parts and fluids, repair and maintenance services, insurance,
depreciation, and other expenses while delivering the food
Defendants' delivery drivers were subject to
reimbursement for these costs. Id. at PageID.355.
Since November 20, 2015, Defendants have utilized various
methods of reimbursement to account for these expenses.
Id. at PageID.352. Plaintiff alleges that none of
Defendants' methods have adequately reimbursed the actual
vehicle expenses incurred by the delivery drivers.
Id. Accordingly, Plaintiff alleges that Defendants
have a flawed reimbursement policy that has resulted in the
“under-reimbursement” of all of Defendants'
delivery drivers' actual automobile expenses.
Id. As a result of the flawed reimbursement policy,
the drivers' net wages were allegedly diminished beneath
the federal minimum wage requirements as required in the
FLSA. Id. PageID.354.
employed as a delivery driver with Defendants, Plaintiff was
paid a cash wage of $5.75 per hour, plus a tip credit.
Id. The federal minimum wage throughout the duration
of Plaintiff's employment by Defendants was $7.25 per
hour. 29 U.S.C. § 206(a)(1)(C). During Plaintiff's
employment period, he was reimbursed at various rates, with a
minimum reimbursement of $.29 per mile. Id. at
PageID.355. During Plaintiff's employment period, the IRS
business mileage rate ranged between $.535 and $.56 per mile.
Id. The IRS mileage rate provides optional
“standard mileage rates for taxpayers to use in
computing the deductible costs of operating an automobile for
business, charitable, medical, or moving expense
purposes.” Id. PageID.537. Using the IRS data
as a reasonable approximation of Plaintiff's automobile
expenses, every mile driven by Plaintiff allegedly decreased
his net wages by at least $.245 per mile, or by $.735 per
hour. PageID.355. Plaintiff contends that this decrease in
net wages diminished his wages beneath the federal minimum
wage. Id. at PageID.354.
Defendants' delivery drivers allegedly shared similar
experiences to those of the Plaintiff: drivers were
“subject to the same reimbursement policy; received
similar reimbursements; incurred similar automobile expenses;
completed deliveries of similar distances and at similar
frequencies; and were paid at or near the federal minimum
wage before deducting unreimbursed business expenses.”
Id. at PageID.355. During the entire FLSA statutory
period, the IRS business mileage reimbursement rate ranged
between $.535 and $.575 per mile. Id. at PageID.352.
Similarly, companies, like AAA, tasked with studying the cost
of owning and operating a vehicle have determined that the
average cost of doing so ranged between $.571 and $.608
during the statutory period. Id. at PageID.352-53.
Both figures represent a reasonable approximation of the
average cost of owning and operating a vehicle to use for
delivering food items. Id. at PageID.353. Therefore,
the Defendants allegedly failed to reimburse their delivery
drivers at a reasonable approximation of the cost of owning
and operating a vehicle for the purpose of delivering food
items. Id. Defendants' low reimbursement rates
allegedly were a frequent complaint of delivery drivers, some
of whom discussed their concerns with management.
Id. at PageID.356. However, Defendants continued to
reimburse their delivery drivers at a rate lower than the
reasonable approximation of automobile expenses, as
determined by the data above. Id.
amended complaint presents two counts. Count I alleges that
Defendants violated the federal minimum wage as mandated by
the Fair Labor Standards Act. PageID.362-65. Count II alleges
that Defendants violated Michigan's minimum wage as
mandated by the Michigan Minimum Wage Law. PageID.365-66.
seek an order compelling depositions from Plaintiff Paul
Westley and opt-in Plaintiffs pursuant to Fed.R.Civ.P. 37(a).
Rule 37(a) provides:
On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The
motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make ...