United States District Court, S.D. New York
MEMORANDUM & ORDER
ALISON J. NATHAN, District Judge.
This is a putative class and collective action for unpaid wages, brought by delivery drivers who allege that they were misclassified as independent contractors by Defendants A-1 International, Inc. ("A-1") and Subcontracting Concepts, LLC ("SCI"). Before the Court are Plaintiffs motion for class certification and appointment of class counsel pursuant to Federal Rule of Civil Procedure 23, and renewed motion for conditional certification and court authorized notice pursuant to FLSA § 216(b). Dkt. Nos. 136, 139. For the reasons that follow, both motions are denied.
A. Factual Background
Defendant A-1 "provides distribution, logistics, and office services, " and approximately thirty-five to forty percent of its business consists of package delivery. Pl. Mem. (FLSA) 6. In the past three years, A-1 has employed approximately 250 drivers, of whom approximately 177 worked in New York. Swartz Deel. ¶ 10.
Plaintiff Moussa Ouedraogo was a delivery driver based out of A-1's Long Island City facility from October 2007 until May 2011. Swartz Deel. Ex. N (Ouedraogo Deel.), 20:12-24. During that time, Ouedraogo was required to work a twelve-hour shift, from 6:00 p.m until 6:00 a.m., seven days a week. Swartz Deel. Ex. N. 66:4-8, 74: 18-20. He was, moreover, paid a set amount for this work, which he could not negotiate, and which did not include compensation for overtime. Id. 66: 20-23; Second Amended Complaint ("SAC") ii 66.
In order to work at A-1, Ouedraogo was required to sign an Owner/Operator Agreement ("Agreement") with SCI, Swartz Deel. Ex. N 40:20-23, which expressly stated that "no employer/employee relationship is created under the Agreement or otherwise as a result of its relationship between it and SCI or its customers, " see Swartz Deel. Ex. PP (Ouedraogo Agm't). Among other things, the Agreement required Ouedraogo to maintain his own vehicle and insurance, prohibited him from carrying passengers, and limited his ability to use information learned during the course of his work. See id.
Indeed, all drivers who work for A-1 are required to sign substantially similar Owner/Operator Agreements with SCI, which designate them as independent contractors. See Swartz Deel. Ex. I (Bartholome Dep) 62:16-20. SCI bills itself as a "third party administrator with two distinct client bases": delivery companies, which it refers to as "logistics companies, " and delivery drivers, which it refers to as "independent contractors." SCI Opp. (Rule 23) 10. Among others things, SCI acts as a broker, supplying delivery companies with delivery drivers. See SCI Opp. (Rule 23) 12; Pl. Mem. (Rule 23) 4. In addition, SCI performs background checks and manages payrolls. See id. SCI provides these services for other delivery companies, and classifies all delivery drivers under contract as independent contractors. See Swartz Deel. Ex. I (Slack Dep.), 49:21-50:16.
B. Procedural History
Plaintiff Ouedraogo filed this as a putative class and collective action on July 24, 2012, seeking to recover unpaid overtime wages under the NYLL and FLSA. Dkt. No. 1. Pursuant to the Civil Case Management Plan, Dkt. No. 14, Plaintiff moved for conditional certification of a nationwide collective on December 21, 2012, Dkt. No. 17. The Court initially granted conditional certification and authorized notice to the nationwide collective on July 8, 2013. Dkt. No. 45. On October 28, 2013, however, the Court granted Defendants' motion for reconsideration and narrowed the collective to include only drivers who had worked at A-1's facility in Long Island City, due to the absence of any evidence from drivers outside that facility. See Dkt. No. 105.
On October 4, 2013, during the pendency of the motion for reconsideration, Plaintiff issued notice "to some drivers who did not work out of the Long Island City facility." Dkt. No. 101. The Court approved the parties' proposed plan to send a letter to the mistakenly notified drivers stating that they had been "inadvertently" sent notice, and that they would "receive another notice in the mail and have an opportunity to join the case" at a later date if they were ultimately included in the certified collective. Dkt. No. 101, Ex. A. However, Plaintiff does not dispute that this letter was never actually sent.
Meanwhile, beginning on July 31, 2014, Defendants filed a series of motions to dismiss and compel arbitration with respect to opt-in plaintiffs who had signed versions of the Owner/Operator Agreement containing an arbitration clause, see Dkt. Nos. 70, 118, 193, which the Court granted in orders dated March 21, 2014, and May 13, 2014, Dkt. Nos. 220, 222. As a result of these motions, named plaintiff Kenneth Chow was dismissed from this case and compelled to arbitrate his claims. However, it is not disputed that Ouedraogo did not sign an arbitration agreement. See Dkt. No. 227. Plaintiff further contends that putative class members who worked for A-1 prior to 2012 likewise signed agreements containing no arbitration clause. See id.
II. Rule 23 Certification
The Court first considers Plaintiffs motion for certification under Rule 23. Specifically, Plaintiff seeks certification of the following two classes: (1) "all persons working as drivers for A-1 in New York state at any time between July 24, 2006, and the date of final judgment in this matter, " and (2) "all persons who signed an owner/operator agreement with SCI and worked as drivers in New York state between July 24, 2006, and the ...