IN RE FEDEX GROUND PKG. SYST., EMPLOYMENT PRACTICES (N.D.Ind. 12-13-2010)

law in various jurisdictions allowing for the same person to be a "statutory" employee for worker's compensation purposes but an independent contractor under the common law).

The drivers argue that FedEx's "every package, every day" rule is treated as control of means and methods under Utah law, even though this "control" is a contracted-for result under Kansas law. The drivers cite Harry L. Young Sons, Inc. v. Ashton, 538 P.2d 316 (Utah 1975), for the proposition that because the right to control can be express or implied, the use of disciplinary-like procedures to correct and censure the plaintiff drivers implies a right to control and indicates employee status. In Harry L. Young Sons v. Ashton, a truck driver was subject to penalties for violating his company's requirement that drivers drive five miles per hour below the lawful posted speed limit. See id. at 318-319. The drivers leap from this specific and detailed control of a driver's manner of driving to argue that FedEx's "every package, every day" rule implies a right to control because the drivers can be terminated if they miss three pickups in a year.

Utah, like many other jurisdictions, maintains the distinction between means and results. For example, the Harry L. Young Sons court quoted Utah's Workers' Compensation Act, which defines the distinction as controlling means and results versus controlling only results. See Harry L. Young Sons v. Ashton, 538 P.2d at 318; see also Foster v. Steed, 432 P.2d 60, 62 (Utah 1976) ("[I]f the control extends only to the result to be achieved, the actor is regarded as an independent contractor, and the defendant is liable under neither respondeat superior nor the workmen's compensation statutes."). The "every package every day" rule is a contracted-for result, not control of means and methods.

Similarly, the drivers argue that dictating "when, where, and how" the drivers do their work suggests that determination of the "when" — i.e., the timeframe in which packages must be delivered — should indicate employee status. See Averett v. Grange, 909 P.2d 246, 250 (Utah 1995) ("[B]oth Grange and his truck were subject to the direction of Geneva Rock as to what, when, how, and where the work was to be performed."). The court doesn't read the Averett court's use of the word "when" to mean that any direction at all as to when results are to be achieved turns a contracted-for result into control of the means and methods of a contractor's work. The Averett court didn't rely on the use of the word "when," but rather applied Utah's four factor test to find that Geneva Rock had, by express contractual provision, the "sole exclusive right to supervise and direct the drivers or operators" of equipment. Id. at 250 (quoting the Grange truck lease). Further, the drivers in Averett were controlled in exactly the same way as similarly situated employee drivers, including being paid every two weeks by the hour and not by the job. See id. Finally, the Averett court gave liberal construction to the facts because it was a worker's compensation case. See id. at 250-251. The use of "when" in Averett was factually illustrative, not a rule of law, and didn't eliminate the distinction between results and means.

Finally, the drivers argue that their right to hire assistants doesn't matter because, they say, Utah law holds that employee status is indicated unless the right to hire assistants is completely unfettered. The drivers rely on Rustler Lodge v. Industrial Commission, 562 P.2d 227 (Utah 1977), which states that "[a]n independent contractor can employ others to do the work and accomplish the contemplated result without the consent of the contractee, while an employee cannot substitute another in his place without the consent of the employer." Id. at 228 (quoting Ludlow v. Industrial Comm'n, 235 P. 884, 888 (Utah 1925)). In affirming a finding of employment status, the Rustler Lodge court pointed out that no facts supported the idea that the injured claimant had any right to hire assistants. Id. at 229.The Rustler Lodge court didn't examine what "consent" meant because the right to hire assistants wasn't a key issue there. In affirming a finding of independent contractor status, theLudlow court examined the right to hire assistants because that right went to the very "crux" of the case.Ludlow v. Indus. Comm'n, 235 P. at 888. The key fact before the Ludlow court was that if drivers hired by the contractor were incompetent or didn't do their work satisfactorily, the school board or superintendent could only complain to the contractor, but the contractor alone had the right to terminate drivers he hired. See id. at 886. Finally, the Manning court, in affirming a finding of employee status for a subcontractor, addressed the "consent" language in a situation where a general contractor controlled which workmen its subcontractor employed by retaining the right to fire any of its subcontractor's employees for any reason. See Utah Home Fire Ins. Co. v. Manning, 985 P.2d at 247.

The court can't agree that the word "consent" is synonymous with "minimum requirements" such that FedEx's minimum requirements for drivers' hired assistants and employees are equivalent to the drivers having to get FedEx's "consent" to hire assistants. There is a distinction between the type of "consent" exercised in Manning (contractee could fire contractor's employees) and the type exercised in Ludlow (contractee could complain to contractor). The evidence before the court doesn't indicate that FedEx takes away the drivers' ability to choose and hire qualified assistants or that FedEx can fire these assistants.

Applying the four Utah factors, as in the Kansas Decision, the agreement between FedEx and the drivers is full of express understandings that FedEx can't control the drivers' means and methods of achieving their contracted-for results, the drivers aren't terminable at will, the drivers are paid according to a complex formula that involves the number of packages they deliver, and the drivers ultimately are responsible for obtaining their own equipment. Most importantly, no reasonable inference is available that FedEx has retained the right to control the plaintiff drivers' means and methods of work on a class-wide basis. See Kansas Decision, at 73. The court incorporates here the Kansas Decision and concludes that the Fishler drivers are independent contractors under Utah law.

Y. Vargas (3:07-cv-325)

Genaro Vargas and his co-plaintiffs allege violations of the federal Motor Carrier Act Exemption for failure to pay overtime, and violations of states' overtime laws for drivers of trucks weighing less than 10,001 pounds. Mr. Vargas's complaint was a class action complaint, but the court denied his motion for class certification because his proposed class included people from many different states (including states for which this court denied class certification in related MDL cases), whose laws on employment status were sufficiently different to make class certification inappropriate. FedEx moved for summary judgment against Mr. Vargas's Wisconsin co-plaintiff, Tim Ketterhagen. The parties recently stipulated to Mr. Ketterhagen's dismissal from the Vargas case, see Ord., Nov. 2, 2010 [Doc. No. 2227], so FedEx's summary judgment motion is denied as moot. Because Mr. Vargas now presents an individual claim unlike any others in this docket, no reason of efficiency or economy warrants its retention in a centralized docket, and the court will suggest remand of Mr. Vargas's case to the transferor court.

The court instructs the parties to file a joint proposed pretrial order with this court within thirty-five days of entry of this order. In addition to summarizing the history of this case, including significant orders and their docket numbers (including, but not limited to, evidentiary, class certification, and dispositive orders), the parties should provide a detailed description of the claims that remain outstanding, without arguing the merits of those claims, and should outline for the court and the transferor court how they anticipate resolving those claims.

Z. West Virginia (3:06-cv-337, Ashbury)

The Ashbury drivers allege violations of West Virginia's Consumer Credit and Protection Act, W. VA. CODE § 46A-6-101 et seq., illegal deductions from wages in violation of West Virginia Code § 21-5-1 et seq., fraud, and unjust enrichment. They seek an accounting, rescission, and declaratory and injunctive relief. Though the West Virginia drivers didn't move to certify the fraud claim, they don't indicate that their claims turn on anything other than a determination of their employment status under West Virginia common law. See Memo. in Support of Mot. to Certify Class (West Virginia), Apr. 23, 2007, at 1 [Doc. No. 595]. Only the drivers filed a summary judgment motion. For the reasons stated below, the court denies the

plaintiffs' motion and grants judgment independent of the motion to FedEx. Because the West Virginia claims stand or fall on the common question of whether FedEx Ground misclassified its drivers as independent contractors, the court will enter judgment for FedEx on all claims in the West Virginia case.

As noted, FedEx didn't file a motion for summary judgment against the West Virginia class. In its supplemental brief, FedEx asks the court to enter judgment sua sponte (now called judgment independent of the motion) in its favor. As set forth in the general introduction to today's decisions, the court takes this request seriously because summary judgment is appropriate under West Virginia law, the drivers' employment status can be examined today without prejudice to the plaintiffs, and answering now the question of the plaintiff drivers' employment status under West Virginia law will conserve judicial resources.

FedEx originally argued that summary judgment on the issue of employment status is inappropriate in West Virginia, even when the facts are undisputed, unless the facts justify only one reasonable inference. Although this standard is no different from other states, FedEx argued that West Virginia absolutely would require a jury trial on the employment status question. The drivers countered that West Virginia law is not "somehow uniquely hostile to summary adjudication of employment status." Unsurprisingly, after the Kansas Decision the parties' tunes have changed in their supplemental briefs. Summary judgment is appropriate in West Virginia (as in other states) when the undisputed facts lend themselves to one reasonable inference. See, e.g., Burless v. West Virginia Univ. Hosps., 601 S.E.2d 85 (W. Va. 2004) (affirming finding of no actual agency relationship); Robertson v. Morris, 546 S.E.2d 770 (W. Va. 2001) (affirming finding of independent contractor status); Shaffer v. Acme Limestone Co., 524 S.E.2d 688 (W. Va. 1999) (affirming finding of independent contractor status).

The parties agree that employment status in West Virginia is decided by the right to control, which is evaluated using four factors: (1) selection and engagement of the servant; (2) payment of compensation; (3) power of dismissal; and (4) power of control. The first three factors aren't essential; the fourth, power of control, is determinative. Each case must be resolved on its own facts, and ordinarily no one feature of the relationship is controlling. To say that the power of control is determinative is to say that it is the "major" factor. The determining factor is the right to control, not the actual exercise of control.Burless v. West Virginia Univ. Hosps., 601 S.E.2d at 91; Mountain Lodge Ass'n v. Crum Forster Indem. Co., 558 S.E.2d 336, 342 (W. Va. 2001); Robertson v. Morris, 546 S.E.2d at 773; Shaffer v. Acme Limestone Co., 524 S.E.2d at 695; Sipple v. Starr, 520 S.E.2d 884, 888, 890 (W. Va. 1999) (finding issue of material fact because contractee retained significant control beyond express terms of agreement, as shown by ordering store employee fired because she had bad teeth).

FedEx relied on worker's compensation cases in its opposition to class certification. Now, at the summary judgment stage, the drivers rely on these same cases. West Virginia courts construe the law liberally in worker's compensation cases, favoring the finding of employee status. C H Taxi Co. v. Richardson, 461 S.E.2d 442, 448 (W. Va. 1995); Myers v. Workmen's Comp. Comm'n, 148 S.E.2d 664, 668 (W. Va. 1966). "It is ordinarily considered when one person is retained to render a service for another that the relationship of employer and employee exists. To overcome this presumption it is incumbent upon the one who hired the workman to show that the latter is an independent contractor."Myers v. Workmen's Comp. Comm'n, 148 S.E.2d at 666. The right to supervise indicates employee status in the worker's compensation context. Id. at 667.

The liberal construction of worker's compensation cases doesn't apply to the case to be decided today. West Virginia courts often cite the Myers case for the four factor right to control test already discussed, but West Virginia courts don't apply the worker's compensation interpretive gloss when using that test in the respondeat superior context. This court has reviewed the worker's compensation cases cited by the drivers with the caution that the cases might have been decided differently in a different context. A general right to supervise the results of contracted-for work doesn't indicate employee status in the respondeat superior context or in the situation of this case, where the drivers generally seek to be reclassified as employees.

West Virginia courts have, in the past, used the following formulation: "If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor." Spencer v. Travelers Ins. Co., 133 S.E.2d 735, 739 (W. Va. 1963). The drivers rely on this formulation to argue that the use of the disjunctive "or" means that supervision indicates employee status in West Virginia. The court can't agree.

West Virginia courts have used their four factor test for decades. See, e.g., Myers v. Workmen's Comp. Comm'n, 148 S.E.2d 664 (W. Va. 1966). But West Virginia courts don't use or rely on the disjunctive "or" language today. For example, the contemporary West Virginia Supreme Court has referred to the case of Paxton v. Crabtree, 400 S.E.2d 245 (W. Va. 1990), as the "seminal" case on the issue of employment status. Shaffer v. Acme Limestone Co., Inc., 524 S.E.2d at 695. Paxton didn't use the disjunctive "or," and Shaffer found Paxton "seminal" even though the independent contractor issue was hardly central to the Paxton case.

The Shaffer court put the nail in the coffin of any argument that Spencer's use of "or" broadened the scope of who is an employee under West Virginia's common law test. The Shaffer court held that Spade Trucking was an independent contractor of Acme Limestone even though, according to the plaintiff:

(1) Spade Trucking employees arrived routinely at 7:00 in the morning at Acme's facility; (2) Acme directed Spade Trucking employees as to which products to pick-up and deliver; (3) Acme advised Spade Trucking employees when they should load their trucks at the legal weight limit; (4) Acme provided Spade Trucking employees with safety information; (5) Acme required spade Trucking drivers, when first hired, to undergo safety hazard training; (6) trucks owned by Spade Trucking were loaded by Acme employees; (7) compensation levels for work by Spade Trucking [were] established by Acme; (8) Spade Trucking employees were required to provide Acme customers with a copy of invoices and to return invoice copies to Acme; (9) Acme suggested the routes Spade Trucking employeesPGPage 170 should take; and (10) when Acme closed its facility each day, the Spade Trucking employees went home.

Shaffer v. Acme Limsetone Co., Inc., 524 S.E.2d at 696. Addressing the plaintiffs' arguments concerning supervision, theShaffer court clarified, "The power of control factor refers to control over the means and method of performing the work." Id. (citation omitted). As the Shaffer court stated, while citing cases from numerous jurisdictions far and wide:

[W]e follow the lead of numerous other courts in holding that an owner who engages an independent contractor to perform a job for him or her may retain broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract — including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work — without changing the relationship from that of owner and independent contractor or changing the duties arising from that relationship.

Shaffer v. Acme Limsetone Co., Inc., 524 S.E.2d at 696-697 (quotations and citations omitted); see also Mountain Lodge Ass'n v. Crum Forster Indem. Co., 558 S.E.2d at 342 (same); Robertson v. Morris, 546 S.E.2d at 773 (W. Va. 1999) (same). The drivers' argument on the use of the disjunctive "or" has no merit.

The West Virginia drivers argue that FedEx can fire them by not renewing their contracts or by terminating their contracts for cause, which, they say, is enough under West Virginia law to constitute a power to fire. The court doesn't read the cases the same way. Further, the drivers' reliance on Huntington Publ'g Co. v. Caryl, 377 S.E.2d 479 (W. Va. 1988), is misplaced because that case involved a tax question and that court expressly stated that whether the carriers in that case were independent contractors was beside the point. See id. at 490 ("The real issue in this case . . . is whether the appellee is making a retail sale to home delivery subscribers."). In a more applicable respondeat superior context, the West Virginia Supreme Court qualified Huntington Publishing's language to say that the "ability to release a carrier [without a stated reason] effectively controls the carrier's method of operation."Zirkle v. Winkler, 585 S.E.2d 19, 25 (W. Va. 2003) (alteration in the original). FedEx doesn't retain the power to fire the drivers at will: FedEx can't release drivers without notice nor can they release drivers without cause.

Finally, and most importantly, "the only reasonable inference that can be drawn is that FedEx hasn't retained the right to control the details of the contractors' work methods on a class-wide basis." Kansas Decision, at 73. The court incorporates here the Kansas Decision and concludes that the Ashbury drivers are independent contractors under West Virginia law.

AA. Wisconsin (3:05-cv-601, Larson)

The Larson drivers allege illegal wage deductions, WIS. STAT. § 103.455, and fraud; they seek rescission and declaratory relief. Though they didn't move to certify the fraud claim, the Wisconsin drivers don't indicate that their claims turn on anything other than a determination of their employment status under Wisconsin law. See Memo. in Support of Mot. to Certify (Wisconsin), Apr. 2, 2007, at 1 [Doc. No. 582]. The parties filed cross motions for summary judgment. For the reasons stated below, the court grants summary judgment to FedEx and denies the drivers' motion for summary judgment. Because the Wisconsin claims stand or fall on the common question of whether FedEx Ground misclassified its drivers as independent contractors, judgment will be entered for FedEx on all claims in the Wisconsin case.

Though Wisconsin courts haven't specifically addressed how to resolve employee status for purposes of Wisconsin Statutes § 103.455, Wisconsin has long used the common law right to control test in all other relevant contexts. The parties agree the right to control test applies in this case, and nothing before the court indicates that Wisconsin courts would use any other test under this statute. See Pamperin v. Trinity Mem'l Hosp., 423 N.W.2d 848, 852 (Wis. 1988) (respondeat superior. "The right to control is the dominant test in determining whether an individual is a servant."); Snider v. Northern States Power Co., 260 N.W.2d 260, 263 (Wis. 1977) (respondeat superior. "The most important single criterion in determining whether a person is an independent contractor is the degree to which the owner, rather than the independent contractor, retains the right to control the details of the work."); Scholz v. Industrial Comm'n, 64 N.W.2d 204, 207 (Wis. 1954) (worker's compensation: "[T]he principal test for determining if a relationship of employer-employee exists is whether the alleged employer has the right to control the details of the work."); Reuter v. Murphy, 622 N.W.2d 464, 469 (WiS.ct. App. 2000) (respondeat superior. "The dominant factor in determining whether an individual is a servant or an independent contractor is whether the alleged master has the `right to control the details of the servant's work."); Madison Newspapers, Inc. v. Wisconsin Dep't of Revenue, 599 N.W.2d 51, 60 (WiS.ct. App. 1999) (tax exemption statute: "The dominant test in determining whether a person is an independent contractor or an employee is who has the right to control the details of the work."); Goldberg v. Department of Indus., Labor and Human Relations, 484 N.W.2d 568, 570 (WiS.ct. App. 1992) (unemployment compensation). Wisconsin courts also cite other factors, such as the right to terminate without liability and the method of payment, and at least one case has referenced the ten factors listed in Restatement (Second) of Agency § 220. See Pamperin v. Trinity Mem'l Hosp., 423 N.W.2d at 852 n. 4.

The drivers' chief argument is that the distinction between control of means and control of results — recognized by other states — doesn't exist in Wisconsin. See Pltfs' Supp., Sept. 24, 2010, at 4 [Doc. No. 2199] ("Unlike Kansas, there is no distinction drawn under Wisconsin law whether the right to control details of the work is part of the manner, method and means of the work or the result of the work."). The drivers rely heavily on an unpublished case, Hernandez v. Romero, No. 2006AP2783, 2007 WL 2593558 (WiS.ct. App. Sept. 11, 2007), in which the appellate court reversed a grant of summary judgment because it found that a material issue of fact existed as to whether the alleged employer had the right to control a worker's means and methods of work. Certain facts in Hernandez, such as the alleged employer's control of Satellite TV workers' work orders and time windows, overlap with this MDL case, butHernandez is an unpublished opinion without precedential value for purposes of today's decision. See Wisconsin Rules of Appellate Procedure, Rule 809.23(3). Even if Hernandez were a citable case, it carries little persuasive value for two reasons. First, employment status most often is determined under the common law on the facts and circumstances of individual cases, not on bright-line rules by which a given fact will be dispositive in every circumstance. Second, the Hernandez court offered no explanation as to why it found a disputed issue of material fact, see id. at *4, which might be why the appellate court declined to publish the opinion.

FedEx relies on Carothers v. Bauer, 126 N.W.2d 758 (Wis. 1964), to argue that summary judgment is required in its favor.Carothers cuts against Hernandez because it comes from a higher court, some facts are similar, Carothers explains its reasoning, and Hernandez carries no precedential value. In Carothers, a contracting milk hauler owned a tractor trailer. The defendant dairy company provided the driver with a milk tank, kept all records, required the tank and truck to be used exclusively to haul for the dairy, required pickup and delivery to places listed by the dairy, and required satisfactory and prompt delivery at all times to prevent spoliation of the milk. The dairy's tank carried the dairy's trade name and legend, and the dairy had an employee ride with the trucker at least once a month to inspect the equipment and generally observe how the driver discharged his responsibilities. Farmers relied on the dairy — not the trucker — to be responsible for the safe hauling of their milk and the control of the drivers. See Carothers v. Bauer, 126 N.W.2d 760-762. The Carothers court held the trucker to be an independent contractor as a matter of law.

As with the drivers' case citations in these MDL cases, the court doesn't point to the facts in Carothers and simply call it a day in favor of FedEx. Rather, Carothers is important for the key principle that in Wisconsin — and contrary to the drivers' argument — there exists the traditional common law distinction between control of results and control of means. The dairy inCarothers controlled contracted-for results by requiring prompt and satisfactory delivery of milk, by having the right to terminate the trucker on thirty days' notice, and by inspecting his work. But as the Carothers court explained, none of those things controlled how the trucker actually operated the truck on his route: he could hire help as he saw fit, could follow his own route of travel, and was responsible for the maintenance and expenses of his truck. The dairy controlled contracted-for results, and the trucker controlled the means and methods by which he obtained those results. See also Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d 328, 338 (Wis. 2004) (distinguishing numerous controls exercised by franchisors as going to quality and operational requirements necessary for the benefit of both franchisee and franchisor, from routine, daily supervision, management, and control of a franchisee's business); Employers Mut. Liab. Ins. Co. v. Brower, 272 N.W. 359, 361 (Wis. 1937) ("[T]he mere procuring or controlling of the end result of work, by one for whom it is performed, without directing the means or details in which it is performed, does not necessarily constitute the person who performs the work an employee. As we [have] said, `Any employer of an independent contractor has that right.'" (quoting York v. Industrial Comm'n, 269 N.W. 726, 732 (Wis. 1936))).

This court has held that "the only reasonable inference that can be drawn is that FedEx hasn't retained the right to control the details of the contractors' work methods on a class-wide basis." Kansas Decision, at 73. The court also addressed all factors relevant in Wisconsin in the Kansas Decision, which the court incorporates here. The Larson drivers are independent contractors under Wisconsin law.

CONCLUSION

The only remaining outstanding matter appears to be FedEx's motion for trial by jury, which the court DENIES as moot [Doc. Nos. 1962, 1987]. Final Suggestions of Remand will be issued after the court reviews the parties' joint proposed pretrial orders requested in today's decisions.

The court INSTRUCTS the parties to file a joint status report with the court within fourteen days of entry of this order if they are aware of any further matters the court may have overlooked today and that require disposition. The court has staggered the due dates of the joint pretrial orders for the convenience of counsel and so as to stagger the remand orders by the Judicial Panel on Multidistrict Litigation. For ease of reference, the court summarizes today's rulings in the attached appendix.

SO ORDERED.

ENTERED: December 13, 2010

APPENDIX Summary of Dispositions

MDL State Summary Member Cause No. 3:06-cv-428 Alabama Drivers' motion for summary judgment (Floyd) DENIED [Doc. No. 1155]; judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:07-cv-191 Alabama Remand of case to be suggested for resolution (Gentle) of all claims. Joint proposed pretrial order due in 21 days. 3:07-cv-272 Arizona Drivers' motion for summary judgment (Gibson) DENIED [Doc. No. 1792]; judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:06-cv-209 Arkansas Drivers' motion for summary judgment (Harris) DENIED [Doc. No. 1157]; judgment independent of the motion granted to FedEx on state law claims only. Remand of case to be suggested for resolution of FLSA-related claims. Joint proposed pretrial order due in 21 days. 3:05-cv-528 California Drivers' motion for summary judgment (Alexander) DENIED [Doc. No. 1153]; FedEx's motion for summary judgment GRANTED [Doc. No. 1225]. Remand of case to be suggested for resolution of FMLA-related claims. Joint proposed pretrial order due in 21 days. 3:06-cv-429 California FedEx's motion for summary judgment (Pedrazzi) GRANTED [Doc. No. 1356]. Remand of case to be suggested for resolution of Mr. Pedrazzi's state law discrimination-related claims. Joint proposed pretrial order due in 21 days. 3:08-cv-52 California FedEx's motion for summary judgment (Huerta) GRANTED [Doc. No. 1658]. Remand of case to be suggested for resolution of claims premised on Mr. Huerta's status as independent contractor. Joint proposed pretrial order due in 21 days. 3:05-cv-664 Florida Drivers' motion for summary judgment (Carlson) DENIED [Doc. No. 1159]; FedEx's motion for summary judgment GRANTED [Doc. No. 1235]. Judgment to be entered in favor of FedEx on all claims. 3:09-cv-356 Florida (Ward) Remand of case to be suggested for resolution of all claims. Joint proposed pretrial order due in 21 days. 3:05-cv-411 Georgia (White) Drivers' motion for summary judgment DENIED [Doc. No. 1794]; FedEx's motion for summary judgment GRANTED [Doc. No. 1818]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-390 Indiana (Riewe) Drivers' motion for summary judgment DENIED [Doc. No. 1161]; FedEx's motion for summary judgment GRANTED [Doc. No. 1229]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-599 Kentucky Drivers' motion for summary judgment (Coleman) GRANTED IN PART [Doc. No. 1165]; FedEx's motion for summary judgment GRANTED IN PART [Doc. No. 1231]. Remand of case to be suggested for resolution of claims related to Kentucky's Wage Payment statute. Joint proposed pretrial order due in 21 days. 3:08-cv-193 Louisiana Drivers' motion for summary judgment (Boudreaux) DENIED [Doc. No. 1796]; FedEx's motion for summary judgment GRANTED [Doc. No. 1820]. Judgment to be entered in favor of FedEx on all claims. 3:06-cv-485 Maryland Drivers' motion for summary judgment (Westcott) DENIED [Doc. No. 1167]; FedEx's motion for summary judgment GRANTED [Doc. No. 1213]. Judgment to be entered in favor of FedEx on all claims. 3:07-cv-189 Maryland FedEx's motion for summary judgment (Jones) GRANTED [Doc. No. 1354]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-533 Minnesota Drivers' motion for summary judgment (Lee) DENIED [Doc. No. 1169]; FedEx's motion for summary judgment GRANTED [Doc. No. 1211]. Judgment to be entered in favor of FedEx on all claims. 3:07-cv-120 Nevada Drivers' motion for summary judgment (DeCesare) GRANTED IN PART [Doc. No. 1800]. Remand to be suggested for further disposition and resolution of all claims. Joint proposed pretrial order due in 21 days. 3:08-cv-234 Nevada Remand to be suggested for resolution of all (Campbell) claims. Joint proposed pretrial order due in 21 days. 3:05-cv-601 New Drivers' motion for summary judgment Hampshire GRANTED IN PART [Doc. No. 1171]; judgment (Gennell) independent of the motion GRANTED IN PART, to FedEx. Remand to be suggested for resolution of claims tied to New Hampshire statutes. Joint proposed pretrial order due in 21 days. 3:05-cv-595 New Jersey Drivers' motion for summary judgment (Tofaute — DENIED [Doc. No. 1173]; FedEx's motion for Class) summary judgment GRANTED [Doc. No. 1227]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-535 New Jersey FedEx's motion for summary judgment (Capers) GRANTED IN PART [Doc. No. 1352]. Remand to be suggested for resolution of claims not resolved by Tofaute finding of independent contractor status. Joint proposed pretrial order due in 28 days. 3:07-cv-327 New Jersey Remand to be suggested for resolution of (Farrell) federal law and contractual claims. Joint proposed pretrial order due in 28 days. 3:09-cv-2 New Jersey Remand to be suggested for resolution of (Tofaute — claims. Joint proposed pretrial order due in 28 Individual) days. 3:05-cv-538 New York Drivers' motion for summary judgment (Louzau) DENIED [Doc. No. 1175]; FedEx's motion for summary judgment GRANTED [Doc. No. 1219]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-537 New York FedEx's motion for partial summary judgment (Johnson) DENIED as premature [Doc. No. 1347]. Remand to be suggested for resolution of all claims. Joint proposed pretrial order due in 28 days. 3:07-cv-326 North Carolina Drivers' motion for summary judgment (Whiteside) DENIED [Doc. No. 1798] (ERISA claim is DENIED without prejudice); judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:08-cv-336 Ohio (Kelly) Drivers' motion for summary judgment DENIED [Doc. No. 1802]; judgment independent of the motion GRANTED to FedEx on all state law claims. Remand to be suggested for resolution of FMLA-related claims. Joint proposed pretrial order due in 28 days. 3:06-cv-801 Ohio (Wallace) Remand to be suggested for resolution of claims. Joint proposed pretrial order due in 28 days. 3:05-cv-596 Oregon Drivers' motion for summary judgment (Slayman) DENIED [Doc. No. 1177]; judgment independent of the motion GRANTED to FedEx. Remand to be suggested for resolution of outstanding rescission claim. Joint proposed pretrial order due in 28 days. 3:07-cv-328 Oregon Drivers' motion for summary judgment (Leighter) DENIED [Doc. No. 1804]; judgment independent of the motion GRANTED to FedEx. Remand to be suggested for resolution of outstanding rescission claim. Joint proposed pretrial order due in 28 days. 3:05-cv-597 Pennsylvania Drivers' motion for summary judgment (Willis) DENIED [Doc. No. 1179]; judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-598 Pennsylvania Judgment independent of the motion (Hart) GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:09-cv-3 Pennsylvania Remand to be suggested for resolution of (Mitchell) claims. Joint proposed pretrial order due in 28 days. 3:05-cv-599 Rhode Island Drivers' motion for summary judgment (Tierney) DENIED [Doc. No. 1181]; FedEx's motion for summary judgment GRANTED [Doc. No. 1233]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-668 South Carolina Drivers' motion for summary judgment (Cooke) DENIED [Doc. No. 1183]; judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-600 Tennessee Drivers' motion for summary judgment (Smith) DENIED [Doc. No. 1185]; FedEx's motion for summary judgment GRANTED [Doc. No. 1217]. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-540 Texas Drivers' motion for summary judgment (Humphreys) DENIED [Doc. No. 1187]; FedEx's motion for summary judgment GRANTED [Doc. No. 1223]. Remand to be suggested for federal claims. Joint proposed pretrial order due in 35 days. 3:06-cv-802 Texas (Price) Remand to be suggested for resolution of claims. Joint proposed pretrial order due in 35 days. 3:08-cv-53 Utah (Fishler) Drivers' motion for summary judgment DENIED [Doc. No. 1806]; FedEx's motion for summary judgment GRANTED [Doc. No. 1822]. Judgment to be entered in favor of FedEx on all claims. 3:07-cv-325 Vargas (MA) FedEx's motion for summary judgment DENIED as moot [Doc. No. 1870]. Remand to be suggested for resolution of all claims. Joint proposed pretrial order due in 35 days. 3:06-cv-337 West Virginia Drivers' motion for summary judgment (Ashbury) DENIED [Doc. No. 1189]; judgment independent of the motion GRANTED to FedEx. Judgment to be entered in favor of FedEx on all claims. 3:05-cv-601 Wisconsin Drivers' motion for summary judgment (Larson) DENIED [Doc. No. 1191]; FedEx's motion for summary judgment GRANTED [Doc. No. 1221]. Judgment to be entered in favor of FedEx on all claims. FedEx's motions for trial by jury DENIED as moot [Doc. Nos. 1962, 1987].