1
UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA
C
IVIL
N
O
.
09-516
(DWF/AJB) M
ATT
L
UIKEN AND
J
ON
S
ANDQUIST
,
ON
B
EHALF OF
T
HEMSELVES
,
A
LL
O
THERS
S
IMILARLY
S
ITUATED
,
AND THE
P
ROPOSED
M
INNESOTA
R
ULE
23
C
LASS
P
LAINTIFFS
,
V
.
D
OMINO
’
S
P
IZZA
LLC,D
EFENDANT
.
O
RDER
O
PINION
This matter is before the Court, United States Magistrate Judge Arthur J. Boylan,Plaintiffs’ counsel’s Motion to Withdraw as Attorney [Docket No. 87] and Supplemental Motionto Withdraw as Attorney [Docket No. 105], and Defendant’s Motion to Compel and forSanctions. [Docket No. 78.] A hearing was held on the motions on November 20, 2009. E.Michelle Drake and Paul Lukas appeared on behalf of Plaintiffs. Juli Ann Lund and TraceyHolmes Donesky appeared on behalf of Defendants.Both sides submitted memoranda in support of their motions and in response to theopposing side’s motion. Defendant also submitted a reply memorandum. [Docket No. 119.] ThisCourt declines to consider that reply memorandum pursuant to the D. Minn. LR 7.1.For the reasons set forth below, counsel’s Motion to Withdraw as Attorney [Docket No.87] and Supplemental Motion to Withdraw as Attorney [Docket No. 105] are
GRANTED
, andDefendant’s Motion to Compel and for Sanction [Docket No. 78] is
GRANTED IN PART
and
DENIED IN PART
.
Case 0:09-cv-00516-DWF-AJB Document 122 Filed 12/02/09 Page 1 of 12
2
I.
BACKGROUND
Plaintiffs allege in their Amended Complaint as follow: They were delivery drivers forthe Defendant Dominoes Pizza LLC between 2006 and the filing of the Complaint. (FirstAmended Complaint ¶ 8-15, Nov. 3, 2009.) Defendant paid all pizza delivery drivers an hourlyrate equal to the greater of the prevailing Federal or State minimum wage. (
Id.
at ¶ 25.) Inaddition to their hourly rate, Plaintiffs were paid a set amount for each delivery trip pursuant toDefendant’s “Tiered Reimbursement Program” (TRP). (
Id.
at ¶ 28.) The TRP provided that theamount Plaintiffs were paid per trip varied depending on the number of delivery stops madeduring the trip, with Plaintiffs receiving a set amount for the first stop, a lesser set amount for thesecond stop, and no amount for any stops beyond two. (
Id.
at ¶ 29.) Plaintiffs further contendthat “the [TRP] has always been based on a nationwide mathematical formula which involvescalculations based on assumptions about drivers’ fuel economy, maintenance, operating andfixed costs.” (
Id.
at ¶ 31.)Plaintiffs’ claims are premised upon their contention that the TRP does not accuratelyreflect the expenses that Plaintiffs actually incurred while working for Defendant. In assertingtheir claims, Plaintiffs allege examples such as: “during the pay period ending on November 16,2008, Plaintiff Luiken incurred a $795.69 expense for repairing a turn signal; however, receivedonly $82.85 in reimbursement for that pay period.” (
Id.
at ¶ 46.) Plaintiffs contend that there is adiscrepancy between actual expenses and unreimbursed expenses, and when this discrepancy issubtracted from Plaintiffs’ hourly wage it reduces Plaintiffs’ hourly wage to below the applicableminimum wage in violation of the federal Fair Labor Standards Act (FLSA), and the MinnesotaFair Labor Standards Act (MFLSA). (
Id.
at ¶¶ 66-94.)
Case 0:09-cv-00516-DWF-AJB Document 122 Filed 12/02/09 Page 2 of 12
3Shortly after the Complaint was filed on March 4, 2009, Plaintiffs began filing opt-inconsent forms for its claim under the FLSA. [Docket Nos. 4-7, 10-11, 17-21, 23-25, 32, 41, 43-44, 54, 82, 101.] On April 24, 2009, Defendant moved to dismiss [Docket No. 14], but prior tothe arguments on the Defendant’s dispositive motion, discovery was served by the Plaintiffs.The parties disputed whether outstanding discovery requests should be responded to, or whetherdiscovery should be stayed pending a decision on Defendant’s motion to dismiss.
1
(PretrialScheduling Order 1, July 24, 2009.) A Pretrial Scheduling Order was issued on July 24, 2009, toset a schedule for litigation in this matter and resolve the dispute between the parties concerningdiscovery. [Docket No. 51.]Plaintiffs’ pleadings include collective action allegations under 29 U.S.C. § 216(b) andFed. R. Civ. P. 23. As such, this Court’s Order from July 24, 2009, bifurcated discovery into twophases: The first phase of discovery would address the issue of certification of the class undersection 216(b) and Rule 23. [Docket No. 51] The second phase of discovery would address themerits of the claims. [Docket No. 51.] While the deadlines prescribed by this Order weresubsequently extended, the purpose of first phase of discovery did not change. [Docket Nos. 58,71.]As part of the first phase of discovery, Defendant sought: (1) to depose Crystal Cox,Crystal Sewell, Brian Dougherty, Anthony Cox, and Aaron Wojcik; (2) interrogatories fromAnthony Cox, Crystal Cox, Jason Kafader, Gregory Kopicko, Jr., and Aaron Wojcik; and (3)document production regarding plaintiffs’ vehicle and vehicle costs, electronic communicationsand postings regarding pizza delivery or Dominoes, and tax regards. (Def.’s Mem. 4-11, Nov. 6,
1
The motion to dismiss was subsequently granted in part and denied in part. [Docket No. 52.]Following the order on the motion to dismiss, the Amended Complaint was filed. [Docket No.85.]
Case 0:09-cv-00516-DWF-AJB Document 122 Filed 12/02/09 Page 3 of 12
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