United States District Court, D. Kansas
LARRY BLAIR and CHARLIE DAVIS, On Behalf of Themselves and All Other Persons Similarly Situated, Plaintiffs,
TRANSAM TRUCKING, INC., Defendant.
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE.
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).
Factual and Procedural Background
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
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).
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.
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 ...