United States District Court, D. New Jersey
SAM HARGROVE, ANDRE HALL, MARCO EUSEBIO, individually and on behalf of all others similarly situated, Plaintiffs,
SLEEPY'S, LLC, Defendant.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before this Court on Plaintiffs' motion for
class certification. [ECF No. 193].
2010, Plaintiffs Sam Hargrove, Andre Hall, and Marco Eusebio,
who were all delivery drivers for Defendants Sleepy's,
LLC ("Sleepy's"), filed a complaint in this
Court, on behalf of a putative class, alleging that
Sleepy's misclassified them as independent contractors
rather than employees, and thus denied them protections and
benefits under the Employee Retirement and Income Security
Act (ERISA), the Family Medical Leave Act, and the New Jersey
Wage Payment Law. Hargrove v. Sleepy's LLC, 612
Fed.Appx. 116, 117 (2015). Specifically, Plaintiffs allege
that Sleepy's withheld and diverted money from their
wages in violation of New Jersey's Wage Payment Law.
Id. Plaintiffs also allege that they were not paid
overtime for their work, a claim that would also arise under
the New Jersey Wage and Hour Law. Id.
Sleepy's is a New York-based mattress retailer that
adopts a comprehensive delivery process. They operate a
facility in Robbinsville, New Jersey. The only merchandise
dispatched from the Robbinsville terminal is Sleepy's
merchandise sold to Sleepy's customers, or transfers from
the terminal to another Sleepy's facility. (Zezas Dep.
20:23-21:8.) Sleepy's runs approximately 50-60 trucks per
day, and sometimes as many as 85-90 trucks during peak season
out of the Robbinsville facility. (Id. at
to Sleepy's, deliveries are performed by contractors.
Sleepy's requires its contractors to sign Independent
Driver Agreements (IDA) (See Def. Br. Ex. G, I, K, L, J, H,
F, M). Pursuant to the IDA, drivers are classified as
independent contractors. (EX. L (Sample IDA), IDA ¶3).
The IDA provides for a non-exclusive relationship, meaning
that the drivers are considered independent contractors, and
may make deliveries for other companies while not performing
deliveries for Sleepy's. (See Hargrove v.
Sleepy's LLC, Civ. A No. 10-1138, 2012 EL 1067729,
*1 (D.N.J. Mar. 29, 2012). Contractors and any helpers are
required to wear Sleepy's uniforms and Sleepy's ID
badges and display Sleepy's advertising on their trucks.
(IDA ¶9-10.) Pursuant to the IDA, contractors pay for
their own workers compensation insurance, and list
Sleepy's as "certificate holder" on their
policies. They also purchase motor vehicle insurance and list
Sleepy's as an additional insured on their policy. (IDA
are also required to "agree that while performing
deliveries for Sleepy's [they] will not carry merchandise
for any other business until [they] finished the delivery
manifest given by Sleepy's." (IDA ¶2.)
contend that, between January 2007 and December 2016 (class
period), Sleepy's has contracted with at least 193
individuals to perform deliveries out of its facility in
Robbinsville. (Shuford Aff. ¶6 (Ex. E)).
the parties filed cross-motions for summary judgment, on
March 29, 2012, this Court entered an order granting
Sleepy's motion for summary judgment and denying
Plaintiffs' cross-motion. Id. The decision was
appealed and remanded by the Third Circuit who asked for the
advice of the Supreme Court of New Jersey regarding which
test to apply to determine the nature of an employment
relationship under the New Jersey Wage Payment Law and the
New Jersey Wage and Hour law. The Supreme Court deemed the
"ABC test" to be most appropriate. Id. On
remand, this Court granted Plaintiffs' motion for partial
summary judgment and denied Sleepy's motion for summary
judgment. In the decision, this Court applied the New Jersey
Supreme Court ABC test, to determine whether Plaintiffs were
to be considered employees. Hargrove v.
Sleepy's, LLC, 2016 U.S. Dist. LEXIS 156697, *12
(D.N.J. Oct. 25, 2016).
the remand, Plaintiffs voluntarily dismissed Count 8, 9, 10,
and 11, which arose under the laws of Massachusetts, New
York, Connecticut, and Maryland. However, the following
claims remain: Breach of Contract (Count I and II); Mistake
(Count III); Rescission (Count IV); Claim for Plan
Enforcement under the Employee Retirement and Income Security
Act (ERISA) (Count V); Violations of the Family and Medical
Leave Act (FMLA) (Count VI); Violations of New Jersey Wage
Payment Law (NJWPL) (Count VII); and violations of New Jersey
Wage and Hour law (Count VIII). Plaintiffs now seek
certification of the class pursuant to Fed.R.Civ.P. 23.
Court understands it, the proposed class members would have
to meet three criteria that define the class: (1) worked
full-time making deliveries for Sleepy's and thus were
misclassified as independent contractors; (2) were subject to
improper deductions; and (3) worked over 40 hours per week
without being paid over-time (time-and-a-half).
December 13, 2017, the Court held oral argument on the motion
for class certification. There, Plaintiffs supported
determining that "at least 193" people met the
criteria for the class proposed, as specified in the
affidavit of Rebecca Shuford, the paralegal who analyzed the
data and documents to determine the proposed class. [ECF
193-5, Shuford Affidavit]. Ms. Shuford submitted two
affidavits which listed the documents she reviewed and her
findings. The only difference between the affidavits is that,
at request of Plaintiffs' attorney, Ms. Shuford expanded
on the number of trucks operated by contractors that she
deemed part of the proposed class. (Shuford Depo., ECF 211-1,
T30-21-31:15). Specifically, Ms. Shuford noted that 201
contractors were listed on Sleepy's documents. After
eliminating eight contractors who operated 10 or more trucks
simultaneously, she counted 193 contracts total. (ECF 196-10
2nd Shuford Affidavit ¶3).
Of the 193 contractors that I identified, 73 contractors
operated only 1 truck for Sleepy's and an additional 12
contractors operated only 1 truck in the majority of the
weekends they made Sleepy's delivery  contractors
averaged operating 2 trucks while working for Sleepy's.
 contractors averaged operating 3 trucks for
Sleepy's. The remaining 24 contractors averaged between 4
and 9 trucks per week.
hearing, the Court requested clarification as to the
methodology used by Plaintiff to determine the proposed class
members. The Court also provided the parties with the option
to depose Ms. Shuford which they did on December 20, 2017.
Thereafter, parties submitted supplemental briefs for
consideration by this Court. [ECF No. 208 and ECF No. 211].
Shuford is currently employed by Plaintiffs firm as a
paralegal. She has been working as a paralegal since 2015 and
was trained within the firm. At the time of the deposition,
she did not hold a certificate of training as a paralegal.
(T15-16). At the deposition, Ms. Shuford confirmed that she
reached the conclusions mentioned in her affidavit by
reviewing three sets of records:
Outside Carrier Expense Detail reports (Bates No.
SL0021713-29781) produced by Sleepy's for all trucks
making deliveries out of Sleepy's Robbinsville, New
Jersey facility from January 1, 2007 to 2010;
Outside Carrier Spreadsheets, containing data for payments
and deductions made to carriers operating out of the
Robbinsville facility from 2011 thought 2016, that were
produced by Paul Lantis. (T1 9:17-23; respectively Ex. 1
(sample report) and Ex 2 (email from Lantis) to Shuford
logs (3, 400 pages), however, Ms. Shuford noted that they
only cover a time period in 2008-2009. (T45).
are three main points that seek resolution through exploring
Ms. Shuford's review of the data and conclusions as to
the class size: (1) how to determine which drivers provided
delivery services for Sleepy's on a full-time basis; (2)
who was subject to improper wage deductions; and ...