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Kopaleishvili v. Uzbek Logistics, Inc.

United States District Court, S.D. Ohio, Western Division

December 4, 2019

RAUL KOPALEISHVILI, on behalf of himself and others similarly-situated, Plaintiff,
v.
UZBEK LOGISTICS, INC., et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (DOC. 38)

          TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE

         This civil case is before the Court on Plaintiff's motion for class certification (Doc. 38) and the parties' responsive memoranda (Docs. 42, 44).

         I. BACKGROUND

         Plaintiff Raul Kopaleishvili brings this action on behalf of himself and those similarly situated setting forth a single breach of contract claim against his former employers, Defendants Uzbek Logistics, Inc. (“Uzbek Logistics”) and Uzbek Transport Express, LLC (“Uzbek Transport”). Plaintiff alleges that Defendants breached their employment contracts by paying truck drivers a per-mile rate based on “practical miles, ” calculated using an atlas, MapQuest, or Google Maps, rather than based on the “actual miles” they drove. (Doc. 1 at ¶¶ 30-38). Plaintiff alleges that as a result of being paid based on practical miles, his “compensation was regularly short by at least 100 miles in every payment.” (Id. at ¶ 34).

         Two brothers, Ulugbek Aripov (“Ulugbek”) and Otabek Aripov (“Otabek”), started freight-brokering companies between 2008 and 2011. Ulugbek created Uzbek Transport in 2008, which employed truck drivers on a contract-basis to haul freight from 2008 through 2011. (Ulugbek Depo. at 12, 15, 17, 26, 30). While in operation, Uzbek Transport had approximately five to six contract drivers at a given time. (Id. at 26, 34). Ulugbek testified that he used written contracts for his drivers, which indicated a “per mile” rate of pay; although he had oral agreements with a couple of the drivers whom he knew personally. (Id. at 36-37). The written contracts were informal in nature. Ulugbek testified that he would write up the agreement “on a piece of paper, saying I, whatever the driver's name is, agree to get paid this much per mile, ” with the driver and Ulugbek signing the paper. (Id. at 37).

         To determine the mileage for purposes of compensation, Ulugbek used a “truckers' atlas, ” cross-checking the distance with MapQuest. (Id. at 38-40). Once a week, Ulugbek would have a conversation with his drivers about their pay, with both parties agreeing to use the estimate from the atlas over that from MapQuest “90 percent of the time.” (Id. at 40-41). During this period, Uzbek Transport was not using GPS navigation or tracking. (Id. at 41). Ulugbek would use an Excel spreadsheet to track mileage per load and to calculate pay. (Id. at 47). He would print off the sheets and give these to his drivers along with their checks. (Id.).

         In approximately 2013, Uzbek Transport began “booking freight” through another company, Uzbek Logistics, formed by Otabek in 2011. (Ulugbek Depo. at 16-17, 31; Otabek Depo. at 14, 18-19, 27-31, 39). The two companies had a lease agreement whereby Uzbek Transport made bookings and then passed the work along to Uzbek Logistics to haul the freight through its contracted trucks and drivers. (Ulugbek Depo. at 17). Uzbek Transport ceased operations at the end of 2016. (Id. at 16, 24).

         Uzbek Logistics, like Uzbek Transport, paid contract drivers a “per mile” rate that would be written on the drivers' employment contracts and calculated based on “practical miles.” (Otabek Depo. at 46-47, 67). Uzbek Logistics began using more formal contracts, like the one signed by the Plaintiff, in 2016. (Id. at 44, 74). Unlike Uzbek Transport, which relied primarily on a trucker's atlas for its mileage estimates, Uzbek Logistics used Google Maps to calculate practical miles for purposes of compensation. (Id. at 47-48).

         Otabek explained in his deposition that after being hired, a driver would go through “orientation, ” during which Uzbek Logistics would explain that pay is based on practical miles. (Id. at 59-61). At Uzbek Logistics, drivers were required to submit an envelope containing their log book, fuel receipts, a blank space to note the route taken, and a comment sheet on which drivers could note any additional expenses incurred or note if they ended up taking an alternate route or detour warranting greater compensation. (Id. at 63-65, 67). The log books also contained a place for drivers to write down the actual miles driven for purposes of fuel taxes. (Id. at 72). According to Otabek, most of the drivers did not record their actual miles in their log books. (Id. at 90-91). Uzbek Logistics would send its drivers a “settlement sheet, ” which included a breakdown of their mileage and compensation. (Id. at 65). Around April of 2017, Uzbek Logistics stopped using contract drivers and switched exclusively to owner-operated drivers.[1] (Id. at 41). In January 2017, Uzbek Logistics entered into a lease agreement with a third company called On Time Trans. (Id. at 79). In April of 2017, Otabek gave On Time Trans permission to include “Uzbek Logistics” in the header of On Time Trans' contracts, and pursuant to Otabek's suggestion, the contracts expressly stated that drivers would be paid a certain amount “per mile” “based on practical miles.” (Id. at 97-99).

         Plaintiff, Raul Kopaleishvili, allegedly worked as a contract truck driver for Uzbek Transport and Uzbek Logistics from June 2016 to January 2017. (Doc. 38 at 17).[2]Plaintiff's employment contract states, “I understand that my rate of pay will be $0.50 Per Mile . . .” (Doc. 1-1 at ¶ 5). Prior to being hired, Plaintiff spoke on the phone several times with Otabek, the owner of Uzbek Logistics, and also met with him in Cincinnati for an interview. (Raul Depo. at 58, 63-64). According to Plaintiff, Otabek did not explain how compensation would be calculated beyond stating he would be paid fifty cents per mile. (Id. at 64). However, Otabek claims that Plaintiff went through the standard orientation, during which Otabek would have explained that Uzbek Logistics uses Google Maps to calculate mileage for purposes of compensation. (Otabek Depo. At 61, 73). Plaintiff, based on his prior experience, was under the impression his pay would be calculated using actual miles driven based on his odometer. (Raul Depo. at 52, 61).

         Noticing the discrepancy between the actual miles he drove and amount he was paid, Plaintiff asked his employer why he was not being paid more. (Id. at 49). After approximately one to two months, Plaintiff was “clearly told” that Uzbek Logistics calculates pay based on Google Maps, not actual miles driven. (Id. at 50). Plaintiff initially took photographs of his odometer to track his mileage but stopped consistently tracking his odometer miles after he was told that pay would be calculated using Google Maps. Plaintiff claims that he was underpaid by at least $6, 372.25 having been paid based on practical miles rather than actual miles. (Id. at 166).

         The complaint states that the putative class consists of “each and every other person who worked for the Defendants as a truck driver.” (Doc. 1 at ¶ 14). Plaintiff's motion for class certification proposed the following revised class definition:

[A]ll individuals hired as truck drivers by Uzbek Logistics, Inc. and/or Uzbek Transport Express, LLC, from April 2009 through March 2018 (the “Class Members”). Corporate officers, shareholders, directors and administrative employees shall not be part of the proposed class.

(Doc. 38 at 1, 12). To address certain deficiencies raised by Defendants in response to Plaintiff's motion for class certification, Plaintiff, in his reply brief, further refined the class definition as follows:

All drivers who entered into written contracts with Uzbek Logistics, Inc. and/or Uzbek Transport Express, LLC since April 2009 requiring payment on a “per mile” basis. The class does not include those drivers whose contracts expressly state compensation will be paid “based on practical miles.”

(Doc. 44 at 9). Thus, the Court will treat Plaintiff's motion for class certification as a motion to certify the amended class definition proposed in Plaintiff's reply brief. Cf. Cowan v. Nationwide Mut. Ins. Co., No. 2:19-cv-1225, 2019 WL 4667497, at *7 (S.D. Ohio Sept. 25, 2019) (considering narrowed class definition proposed in plaintiff's reply brief for purposes of class certification under the Fair Labor Standards Act); see also In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 402 (S.D. Ohio 2007) (considering “reply-memorandum modification” to class definition).[3]

         II. STANDARD OF REVIEW

         Class actions constitute “an exception to usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1978). “In order to justify a departure from that rule, ‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.'” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). To obtain class certification, a plaintiff must meet each of the four prerequisites contained in Federal Rule of Civil Procedure 23(a)-numerosity, commonality, typicality, and adequate representation. Zehentbauer Family Land, LP v. Chesapeake Expl. LLC, 935 F.3d 496, 503 (6th Cir. 2019).

         “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). This rigorous analysis may require “the court to probe behind the pleadings before coming to rest on the certification question.” Id. However, courts do not have “license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

         In addition to meeting the four criteria in Rule 23(a), a plaintiff must demonstrate that the putative class complies with at least one of the requirements of Rule 23(b). Id. Here, Plaintiff seeks certification of the class pursuant to Rule 23(b)(3). (Doc. 38 at 35). A court may certify a class under Rule 23(b)(3) only if it “finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Finally, a Rule 23(b) class must also meet an implied ascertainability requirement. Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 466 (6th Cir. 2017).

         III. ANALYSIS

         A. Ascertainability

         Before turning to the requirements of Rule 23(a), the court will first consider whether the proposed class is ascertainable-that is, whether the class is “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012). A class is sufficiently ascertainable when class members can be identified based on objective criteria. See Rikos v. P&G, 799 F.3d 497, 526 (6th Cir. 2015) (affirming finding of ascertainability where the identification of class members would involve “substantial review” of records, supplemented by the use of receipts and affidavits). The purpose of the ascertainability requirement is to ensure administrative feasibility, including the ability to notify absent class members in order to provide them an opportunity to opt out and avoid the potential collateral estoppel effects of a final judgment. Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016).

         To reiterate, Plaintiff seeks certification of the following class:

All drivers who entered into written contracts with Uzbek Logistics, Inc. and/or Uzbek Transport Express, LLC since April 2009 requiring payment on a “per mile” basis. The class does not include those drivers whose contracts expressly state compensation will be paid “based on practical miles.”

(Doc. 44 at 9). Defendants objected to a finding of ascertainability based on Plaintiff's prior class definition, which would have included drivers with oral agreements, as well as “owner-operators” who were not paid on a per-mile basis. Plaintiff's narrower class definition adequately addresses these objections, as it is limited to drivers with written contracts containing the relevant “per mile” language. Consequently, class members can be identified based on the objective criterion of whether they had a written agreement with Defendants specifying a “per mile” rate of pay (excluding drivers with contracts expressly stating pay is “based on practical miles”).

         Another challenge to ascertainability raised by Defendants is the fact that Plaintiff has not offered copies of contracts from drivers for Uzbek Transport during the time it was operational. During his deposition, Ulugbek testified that he does not have copies of Uzbek Transport's contracts. (Ulugbek Depo. at 37). However, poor record keeping on the part of a defendant generally does not excuse him from potential liability. “It is often the case that class action litigation grows out of systemic failures of administration, policy application, or records management that result is small monetary losses to large numbers of people.” Rikos, 799 F.3d at 525. Thus, “[t]o allow that same systemic failure to defeat class certification would undermine the very purpose of class action remedies.” Id. at 525-26.

         Therefore, affidavits may be used to supplement the record to the extent Defendants are not able to produce the contracts of self-identified class members who drove for Uzbek Transport. See Id. at 526 (approving the use of receipts, affidavits, and a special master to review individual claims). This is not a case like Sandusky, where the court rejected the plaintiffs' proposal to supplement fax records of with affidavits on the basis that putative class members were “not realistically expected to remember receiving a one-page fax sent seven years ago.” 863 F.3d at 472. Former drivers for Uzbek Transport are likely to recall the fact of their employment. In addition, Ulugbek testified that he had a consistent practice of paying drivers a “per mile” rate written on a piece of paper with ...


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