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Blair v. Transam Trucking, Inc.

United States District Court, D. Kansas

November 3, 2017

LARRY BLAIR and CHARLIE DAVIS, On Behalf of Themselves and All Other Persons Similarly Situated, Plaintiffs,
v.
TRANSAM TRUCKING, INC., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         U.S. Magistrate Judge Kenneth Gale conducted a pretrial conference in this case on June 22, 2017. Defendant TransAm Trucking, Inc. objected to paragraphs 21, 41, 58, 59, and 63 of the “Contentions of Plaintiffs, ” as well as paragraphs 2 and 3 of the “Legal Claims of Plaintiffs.” The Magistrate Judge overruled those objections at the pretrial conference. TransAm now moves under Rule 72(a) for review of the Magistrate Judge's order. For the following reasons, the Court denies TransAm's Rule 72(a) Motion for Review of Order of the Magistrate Judge (Doc. 440).

         I. Factual and Procedural Background

         Plaintiffs filed their initial complaint on August 21, 2009. Plaintiffs went on to file two amended complaints-the Second Amended Complaint was filed on April 1, 2014. In the Second Amended Complaint, Plaintiffs assert claims against TransAm for alleged violations of the Fair Labor Standards Act (“FLSA”) and the Kansas Wage Payment Act (“KWPA”).

         During the pretrial conference, TransAm requested bracketed objections to the Pretrial Order, setting forth TransAm's objections “to Plaintiffs' attempt to impermissibly expand their KWPA claims related to ‘Comdata charges' beyond that which was pled, specifically K.S.A. § 44-314(d).” Footnote one of the Pretrial Order explains the objection:

During the on-the-record Pretrial Conference, Defendant specifically identified the paragraphs in the order which are the subject of this objection as follows: Plaintiffs' factual contentions (Part 3(a)) paragraphs 21, 40, 41, 58, 59 and 63; and Legal Claims of Plaintiffs (Part 4(a)) paragraphs 2 and 3. The Magistrate Judge overruled these objections. The claim that the failure to pay wages due generally violated the [KWPA], and the claim that wage payment cards were the subject of improper charges, regardless of the card vendor, are fairly within the allegations in the Second Amended Complaint (Doc. 88).

         Paragraphs 21, 40, 41, 58, 59, and 63 of Part 3(a) (Plaintiffs' factual contentions) of the Pretrial Order read as follows:

21. Defendant has violated and continues to violate the KWPA, K.S.A. §§ 44-313 et seq.
40. Defendant issued each Plaintiff a ComData or other banking card for, among other things, work-related purchases, which was sometimes referred to by Defendant and Plaintiffs as “a fuel card.” 41. At all relevant times, Defendant has had a policy and practice of providing compensation to its Leased Drivers via ComData or other bank cards that charged such Leased Drivers a transaction fee each time money was transferred or withdrawn from such cards.
58. During many weekly pay periods, Plaintiffs received no compensation or compensation at less than the applicable legally required minimum hourly wages, despite having worked compensable time for Defendant during those pay periods.
59. Deductions from Plaintiffs' compensation from Defendant included service charges for uses of the individual Plaintiff's fuel card.
63. Plaintiffs have presently calculated class-wide minimum wage damages for the Rule 23 KWPA class to be $51, 528, 588.00, as described in detail in the report of Plaintiffs' expert Dr. Jeremy Albright, subject to any further revision or updating as may occur prior to trial.

         Paragraphs 2 and 3 of Part 4(a) (legal claims of Plaintiffs) of the Pretrial Order read as follows:

2. Defendant has misclassified the Plaintiffs in the Rule 23 KWPA class as “independent contractors” because the Plaintiffs were “employees” pursuant to the application of the “right to control” test for employee status under the KWPA, and Defendant failed to pay the opt-in Plaintiffs wages in the amount of at least the applicable federal minimum wage for all hours worked during relevant weekly pay periods, and ...

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