Medrano v. Flowers Food, Inc. et al

REPLY to Response to Motion re Opposed MOTION Decertification of the Conditionally Certified Collective Action and Memorandum in Support

D.N.M.February 22, 2019

1 UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO PAUL MEDRANO, on his own behalf and on behalf of all others similarly situated, Plaintiff, vs. FLOWERS FOODS, INC., and FLOWERS BAKING CO. OF EL PASO, LLC, Defendants. § § § § § § § § § § § § CASE NO. 1:16-CV-00350-JCH-KK DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF OPPOSED MOTION FOR DECERTIFICATION OF THE CONDITIONALLY CERTIFIED COLLECTIVE ACTION In their Response to Defendants’ Motion for Decertification, Plaintiffs do not address their strikingly different testimony on matters central to this case. Instead, they urge the Court to focus on an irrelevant abstraction—the undisputed fact that each Plaintiff was classified as an independent contractor—and they urge the Court to follow reflexively a small handful of decisions from other courts denying decertification to other Flowers companies. Along the way, they selectively distort the testimony of Defendants’ managers to conjure the uniformity their own sworn testimony belies. But Plaintiffs have the burden1 of showing this matter should not be decertified based on actual evidence, and the standard the Court must employ in making the determination of whether this case should proceed collectively is, at the decertification stage, “stringent.”2 It may not be met by gesturing in the direction of decisions made by other courts, 1 Green v. Harbor Freight Tools USA, Inc., 888 F. Supp. 2d 1088, 1094 (D. Kan. 2012) (noting Plaintiffs have burden to establish they are similarly situated at decertification stage) (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001)) (emphasis added). 2 Maestas vs. Day & Zimmerman, 2013 WL 11311781, *3 (D.N.M. Dec. 20, 2013). Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 1 of 14 2 sitting in other circuits, applying different law, based on different records. Facts matter at this stage, and the facts in this case compel decertification. I. PLAINTIFFS’ TESTIMONY IS IRREDEEMABLY DISSIMILAR; UNIFORM CLASSIFICATION IS IRRELEVANT Courts in this Circuit are justifiably skeptical of cases in which Plaintiffs seek to determine whether independent contractors are employees based on aggregate proof. Because the economic realities test is fact intensive and may require an individualized analysis, “a number of courts have determined that whether an individual is an independent contractor or an employee is not appropriate for determination on a class-wide basis.” Goodly vs. Check-6 Inc., 2018 Wage & Hour Cas.2d (BNA) 404595, 2018 WL 5724320 (N.D. Okla. Nov. 1, 2018). In Goodly, the court decertified a collective action comprised of 18 independent contractors because “many of the relevant facts that must be considered under the economic realities test var[ied]between Plaintiffs.” Id. at 2. That is precisely the case here. In their Response, Plaintiffs simply ignore most of the relevant facts in several areas key to the determination of whether they are independent contractors, including: Hiring their own employees. The ability to hire employees to perform all or some of the contracted work is a key indicator of contractor status. See Luxama v. Ironbound Express, Inc., 2012 WL 5973277 at *4 (D.N.J. 2012). Plaintiff Guardado testified that he did not personally service his territory; rather, he hired his son to do so. Plaintiff J. Chavez testified that he ran his business primarily through his employees. [Doc. 158 at 13] But Plaintiff Martinez testified that he was told to service his territory personally. [Id. at 2] Plaintiffs do not dispute this key inconsistency. Operating other businesses. The ability to operate other businesses or work another job is a key component of the economic realities test. Goodly, 2018 WL 5724320 at *3 (citing differences in plaintiffs’ pursuit of other sources of income in decertifying case). Plaintiff J. Chavez owned at Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 2 of 14 3 least one other business and worked a full time job for an insurance company, and Plaintiff Coronado Sr. owned another business, while they were operating their distributorships. [Doc. 158 at 12-13] But other Plaintiffs, like Mark Baca, did not and claim they were unaware they could. [Id. at 13] Monitoring by management. Divergent testimony regarding autonomy while working for the alleged employer is a key factor in assessing whether decertification is appropriate. Goodly, 2018 WL 5724320 at *4. Divergence abounds here. Plaintiff Guardado testified that sales managers do not interact act with him while he is in his territory; Plaintiff Carroll sees sales managers perhaps once per month, but they do not give him advice regarding his territory; but Plaintiff Avritt claims nearly daily interaction with Flowers personnel. [Doc. 158 at 15-16] Plaintiffs dispute none of this (and other) widely-conflicting testimony. Instead, they ignore it. And when they do dispute a small number of facts, they offer out-of-context, distorted testimony of Flowers managers in attempt to manufacture evidence of the uniformity their own testimony contradicts. For example, Plaintiffs cite the testimony of David Baxley, a Flowers employee, who agrees that distributors are assigned an amount of shelf space by their grocery store customers. [Doc. 168 at 5] But the Plaintiffs offer sharply divergent testimony on whether they seek to change or expand this amount of space. For example, Plaintiff Uhrich has purchased his own rolling display racks and places them in his customer locations to expand shelf space. [Doc. 158 at 15-16] Plaintiff Chavez sought additional shelf space “every minute of the day.” [Id. at 9] But Plaintiff Medrano claims he never sought additional shelf space, despite knowing that he could. [Id. at 6] Plaintiffs also generically contend that none of them “have [] control” over which products they sell. [Doc. 168 at 5] But Plaintiff J. Chavez testified that he “constantly” recommend new products to his customers, [Doc. 158 at 2], and Plaintiff Carroll decided to give away free samples Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 3 of 14 4 of new products to his customers to entice them to purchase them. [Id. at 20-21] But Plaintiff Avritt testified that he never recommended new products to customers. [Id. at 2] Plaintiffs also site Flowers employee Larry Baldwin’s testimony for the proposition that all distributors’ delivery times are prescribed (by the customer, not Flowers) and immutable. [Doc. 168 at 5] But Mr. Baldwin actually testified that some customers will ask for specific delivery times, which he will pass on to distributors, but it is up to the distributor to negotiate different delivery times with the customer. See Baldwin Deposition, Doc. 168-3, at 70:7-71:9 (highlighted excerpt also attached as Ex. A-13). Once again, the Plaintiffs themselves have testified divergently on this subject. For example, Plaintiff Ruacho works with his customers to change delivery times, but Plaintiff Coronado Jr. testified that his customers require strict adherence to the schedule his customers set. [Doc. 158 at 17]4 At every turn, the facts that Plaintiffs claim are uniform, mostly through out-of-context references to Flowers manager testimony, are proven to be anything but by their own testimony. These facts are hardly “immaterial,” as Plaintiffs boldly claim; they go to the core of the Plaintiffs’ burden to show that the elements of the fact-intensive, six-factor economic reality test may each be proven with representative evidence. In implicit recognition of this impossibility, Plaintiffs do not truly try. Instead, they change the subject, repeatedly urging that because they were each classified as independent contractors, the Court should disregard their widely divergent testimony. But while common classification may play a role at the conditional certification stage, courts in the Tenth Circuit do not consider it at 3 All deposition excerpts are attached to the Declaration of Carol A. Krstulic, filed herewith as Exhibit A. 4 Plaintiffs also assert that they are each “required to comply” with a “dress code.” [Doc. 168 at 5] But, again, the Plaintiffs’ own testimony contradicts this claim. For example, Plaintiff Avritt testified that some customers prefer that their distributors wear a shirt with the “Nature’s Own” brand on it, while others do not. See Avritt Deposition, Exhibit A-2, at 51:2-20. Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 4 of 14 5 the decertification stage. See, e.g., Green v. Harbor Freight Tools, USA, 888 F. Supp. 2d 1088, 1098-99 (D. Kan. 2012) (actual “day-to-day responsibilities,” not common job classification and common job description, are important at decertification stage); Blair v. TransAm Trucking, 309 F. Supp. 3d 977, 1002 (D. Kan. 2018) (fact that leased drivers were each classified as independent is “irrelevant”).5 This is particularly true where, as here, the testimony regarding each Plaintiffs’ work experience differs. Next, Plaintiffs urge this Court to abdicate its responsibility to “stringently” assess the record in this case because some courts (but not all, as noted below) in other jurisdictions, reviewing different records and applying different circuits’ laws, have denied motions to decertify collective actions brought against other Flowers entities. Rehberg v. Flowers Baking Co. of Jamestown, LLC, No. 3:12-cv-00596, 2015 WL 1346125 (W.D.N.C. Mar. 23, 2015), and the cases that reflexively followed it, Richard v. Flowers Foods, Inc., No. 6:15-2557 (W.D. La. Aug. 13, 2018) (Report and Recommendation of Magistrate Judge Whitehurst);6 Noll v. Flowers’ Foods, Inc., 2019 WL 206084 (D. Me. Jan. 15, 2019), are not persuasive here. First, and notably, Plaintiffs avoid a detailed description of the facts of these cases for good reason. Each case, which targeted different defendants, was based on a markedly different factual record. For example, in Rehberg, no distributors ran their distributorships through employees or owned outside businesses. See generally Rehberg, 2015 WL 1346125. 5 Plaintiffs also appear to attach talismanic significance to the fact that they were each characterized as “statutory employees” for tax purposes. But a “statutory employee” is a special tax provision applicable to independent contractor distributors of baked goods, among other products, for whom a company has an obligation to withhold FICA/FUTA taxes. In fact, the tax code specifies that to be a “statutory employee,” one must first be a common law independent contractor. 26 U.S.C. § 3121(d)(3) (defining “statutory employee” as any individual “other than an individual who is an employee” under [common law rules]) (emphasis added). If anything, Flowers’ distributors’ long-standing characterization as independent contractors under the Internal Revenue Code is evidence that the United States government views them as independent contractors, not employees. 6 Defendants in Richard have filed timely objections to this Report and Recommendation. Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 5 of 14 6 Second, and equally importantly, each case relied upon a legal framework not present in the Tenth Circuit. The Rehberg and Richard courts essentially held that because the defendants had classified all of its distributors as independent contractors, there was no need to evaluate the evidentiary differences among individual distributors relevant to their status as employees under the six factor test. See Richard, at p. 29 (acknowledging that “defendants do indeed point to factual differences between the distributors,” but nevertheless holding that “[g]iven that Defendants have a well-established company policy of classifying all distributors as independent contractors, the court is less concerned by the variations in Plaintiffs’ employment circumstances.”) (quoting Rehberg, 2015 WL 1346125, at *17). The court in Richard even stated that “[i]f Flowers misclassified plaintiffs, then the misclassification applies to every distributor making up the putative class.” Richard, at p. 20. But in this Circuit, differences in employment circumstances matter, and courts do not allow a uniform classification to trump key differences in testimony regarding facts relevant to that classification. Stated differently, uniform classification itself does not render plaintiffs “similarly situated” for purposes of proceeding to trial on the merits of their FLSA claims. Blair, 309 F. Supp. 3d at 1002 (“the fact that the Leased Drivers were classified as ‘independent contractors’ is irrelevant”) (citing Green, 888 F. Supp. 2d at 1098)). For these reasons, the Rehberg and Richard decisions do not govern the outcome of Defendants’ Motion for Decertification in this case. The Noll court’s reasoning also has been rejected by courts in the Tenth Circuit. The Noll court analyzed that case under Maine’s common law, eight factor right-to-control test. According to the court in Noll, these factors must be applied with particular emphasis on the defendant’s right to control work rather actual control asserted by the defendant. Noll, at *3. This reasoning is contrary to the Tenth Circuit case law, which focuses on the actual control exercised and not Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 6 of 14 7 merely the right to control. Dole v. Snell, 875 F.2d 802, 808 (10th Cir. 1989); Blair, 309 F. Supp. 3d at 1003 (finding the plaintiffs were not similarly situated because the evidence demonstrated that defendant exerted varying degrees of control over the plaintiffs, and this factor could not be established with collective evidence). At this stage, courts rigorously review the evidence to determine “whether the named plaintiff and the opt-in plaintiffs are ‘similarly situated’ within the meaning of 29 U.S.C. § 216(b), such that it would be appropriate to proceed to trial on all of their damage claims together.” Goodly v. Check-6, Inc., et al., No. 16-cv-GKF-JFJ, at *3 (N.D. Okla. Nov. 1, 2018). To determine this question, courts in the Tenth Circuit “reviews several factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). Because the claims cannot be fairly tried with representative proof due to the variations among the Plaintiffs, Defendants’ defenses, and due process concerns, the Court should decertify the class. Notably, while Plaintiffs cite factually inapposite cases from other jurisdictions applying legal standards expressly rejected by the Tenth Circuit, they fail to direct the court to cases regarding class claims against Flowers in jurisdictions with standards more akin to those of this Circuit. In Soares v. Flowers Foods, Inc., 320 F.R.D. 464, the Northern District of California denied class certification because of the divergent factual circumstances of each distributor’s work experience. Specifically, [t]he issue of what use different drivers make of the option to use backups and subs is a highly individualized question of fact[.] … Some of the distributors were “absentee” territory owners who never personally serviced their own routes . . . Others always performed their own routes and did not hire helpers. But others hired helpers or employees who performed the routes some of the time. Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 7 of 14 8 320 F.R.D. 464, 462, 483 (N.D. Cal. 2017). See also Martinez v. Flower Foods, Inc., 2016 WL 10746664 at *11-12 (C.D. Cal. 2016) (citing differences in distributor’s marketing strategies, different levels of supervision, and different approaches to soliciting new business, among other differences, warranted denial of class certification). Rehberg, Richard, and Noll are outliers decided on different facts and based on the premise that uniform classification as contractors trumps admitted differences in job experiences at the decertification stage. That is not the law in this Circuit. The Court should decline to follow these decisions. II. DEFENDANTS’ DEFENSES MAY NOT BE PROVEN WITH REPRESENTATIVE EVIDENCE In their Response to Defendants’ motion for summary judgment, Plaintiffs admit that “at every turn, there are factual questions that must be answered to determine whether the outside sales exception could apply under these circumstances.” [Doc. 171 at 23] While Defendants will respond to this claim in Reply in Support of their Motion for Summary Judgment,7 the fact that Plaintiffs acknowledge the importance of differences in testimony as it relates to Defendants’ defenses should not be overlooked. Plaintiffs nowhere seek to explain away the key differences in their testimony relating to Defendants’ defenses. Instead, they again rely on Richard and Rehberg to justify their position that the presence of individualized defenses is not enough to warrant decertification of the class. In this Circuit, however, courts must stringently assess whether individualized defenses inhibit the 7 While Defendants believe that they have established all distributors would be, if deemed employees, exempt under the outside sales exemption, if the Court were to find material questions of fact preventing summary judgment, such facts would be individual in nature. For example, Plaintiff J. Chavez claims that he asked his customers for additional shelf space “every minute of every day” [Doc. 159 at 9], but Plaintiff Medrano says he rarely sought additional shelf space from customers. [See Doc. 171 at 9] Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 8 of 14 9 efficiency of proceeding on a collective basis. Green, 888 F. Supp. 2d at 1103 (citing Aquilino v. Home Depot USA, Inc., 2011 WL 564039, at *9 (D.N.J. 2011)). Here, they most certainly do. Defendant intends to offer evidence that at least some of the Plaintiffs are exempt from the overtime provisions of the FLSA under the Motor Carrier Act exemption based on the Plaintiffs’ deposition testimony and responses to written discovery. Plaintiffs claim that the Motor Carrier Act exemption may be litigated with representative evidence because “all of the Plaintiffs have testified that in addition to driving a box truck, they drive their personal vehicles as a regular part of their jobs.” [Doc. 168 at 23] Plaintiffs bury the issue. The Court will still need to determine whether the Plaintiffs’ personal vehicle use was de minimis, which is an extremely fact-intensive inquiry that will vary among the Plaintiffs. Plaintiffs who use larger vehicles weighing more than 10,001 pounds to transport goods in interstate commerce are covered by the motor carrier exemption, except with respect to work weeks during which they use smaller vehicles to transport goods in interstate commerce on more than a de minimis basis. McMaster v. Eastern Armored Servs., Inc., 780 F.3d 167 (3d Cir. 2015). To the extent Plaintiffs used smaller vehicles in connection with their work, most did so for the limited purpose of driving to their accounts on non- delivery days to rotate product already located in the store, not for transporting goods. [Doc. 158 at 26-28] Plaintiffs do not dispute this. And for those who do claim to occasionally transport goods in their personal vehicles, the frequency that each Plaintiff used his personal vehicle to transport goods varied significantly. [Doc. 158 at 28] Under these circumstances, application of the motor carrier exemption will require individualized factual analyses well beyond what was necessary in the cases cited by Plaintiffs. See, e.g., Snively v. Peak Pressure Control, LLC, 314 F. Supp. 3d 734, 741-42 (W.D. Tex. 2018) (possible to litigate motor carrier exemption on collective basis where the issue was limited to Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 9 of 14 10 whether or not the plaintiffs drove light vehicles at all during certain weeks and where plaintiffs kept logs showing the types of trucks they drove and the hours they worked); Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 642, 650 (W.D. Wash. 2011) (motor carrier exemption susceptible to collective adjudication where all plaintiffs used only their personal vehicles); Garcia v. JIA Logistics, Inc., No. 16-22870, 2017 WL 2346149, at * (S.D. Fla. May 30, 2017) (case involved only one plaintiff);8 Rehberg v. Flowers Baking Co. of Jamestown, LLC, 162 F. Supp. 3d 490, 513 (W.D.N.C. 2016) (denying summary judgment on application of motor carrier exemption where trial was necessary to determine whether individual plaintiffs used their personal vehicles to transport products in interstate commerce).9 Because this defense must be litigated individual-by- individual, the Court should decertify. Even if the Court determines that the Plaintiffs are employees who are not exempt from the overtime provisions of the FLSA, damages must be determined week-by-week and distributor- by-distributor. Plaintiffs do not really dispute this. Instead they suggest that damage calculations would be a “straightforward inquiry.” But they take precisely the opposite position in their Opposition to Defendants’ Motion to Exclude Expert Testimony [Doc. 170 at 8]. There, they state that the damages calculation will be very complex: 8 But see Brueningsen v. Resort Express Inc., No. 2:12-cv-00843-DN, 2015 WL 339671, at *6-7 (D. Utah Jan. 26, 2015) (holding motor carrier exemption applied to plaintiffs who drove a mixed fleet of commercial and non- commercial vehicles and citing Hernandez v. Brink’s, Inc., No. 08-201717-CIV, 2009 WL 113406 (S.D. Fla. Jan. 15, 2009) for the holding that employees of mixed fleets are exempt from the overtime provision of the FLSA under the motor carrier exemption when the principal duties of their employment involve tasks related to commercial vehicles); Buckner v. United Parcel Servs., Inc., No. 5:09-cv-411-BR, 2012 WL 1596726, at *5 n. 3 (E.D.N.C. May 7, 2012), aff’d, 489 F. App’x 709 (4th Cir. 2012), cert. denied, 134 S. Ct. 70 (2013) (“even though plaintiff himself may have operated vehicles weighing 10,000 pounds or less . . . he . . . remains subject to the MCA exemption”); Avery v. Chariots for Hire, 748 F. Supp. 2d 492, 500 (D. Md. 2010) (“[T]he prevailing view is that the motor vehicle exemption should apply so long as the time an employee spends operating commercial motor vehicles is more than de minimus.”). Plaintiffs argue that if they drove their personal vehicles for any period of time during any week, they are entitled to overtime for that week. [Doc. 168 at 21-25] But even this position does not eliminate individualized inquiries, because the Court still has to determine whether personal vehicle use is de minimis. 9 In applying the motor carrier exemption, the Rehberg and Wilkinson courts explained that FLSA exemptions must be narrowly construed. Rehberg, 162 F. Supp. 3d at 507; Wilkinson, 297 F. Supp. 3d at 994. The Supreme Court recently rejected that rule in Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018). Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 10 of 14 11 Plaintiffs were not paid a simple, easily discernible wage for hours worked. Instead, Plaintiffs were compensated under a formula that took into account differences between the amount a Plaintiff “paid” for a product and what that product ultimately sold for, the cost of business expenses, insurance, delivery trucks and gas, and even the initial cost of purchasing a service territory, for which Plaintiffs sometimes spent years paying back to Defendants. At times, the balance of this formula was a negative amount, resulting in a debt rather than a credit in Plaintiffs’ accounts. From week to week, the amount of Plaintiffs’ paychecks fluctuated wildly, and at times, they did not receive paychecks at all for reasons unknown. The wage earned by each Plaintiff also fluctuated by circumstances, such as major customers opening or closing businesses in their territories. Complicating the damages calculation further, Defendants’ records do not adequately or completely reflect wages earned or hours worked. [Doc. 170 at 8 (citations omitted)] Regardless, because the number of hours that Plaintiffs worked is not uniform, including whether they even worked over 40 hours in any given week (in part because different distributors used different numbers of employees to either completely or partially run their distributorship), the Court must make damages assessments Plaintiff by Plaintiff. Additionally, Plaintiffs’ approach to damages in this case runs roughshod over Defendants’ rights to defend against Plaintiffs’ claims. In Blair v. TransAm Trucking, 309 F. Supp. 3d 977, 1002 (D. Kan. 2018), the plaintiffs made the same argument advanced by Plaintiffs in this case. The court found that it “completely ignored the fact that [Defendant] is still entitled to defend against each claim individually. . . [Defendant] would have to offer ‘week-by-week, driver-by- driver” evidence to argue that, with respect to many of these claims, their records show that during specific weeks the individual [Plaintiff] received the statutory minimum wage. This defense cannot be offered on a class-wide basis, and therefore weighs in favor of decertification.” Id. at 1011. III. FAIRNESS AND PROCEDURAL CONSIDERATIONS REQUIRE DECERTIFICATION Plaintiffs argue that efficiency and cost savings support proceeding collectively in this action. But as the Blair court succinctly stated, “[a]vailable defenses and procedural fairness go hand-in-hand, as the efficiency gained by holding one trial as opposed to many cannot be obtained Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 11 of 14 12 at the expense of a defendant’s due process rights.” Blair, 309 F. Supp. 3d at 1010 (quoting Scott v. Chipotle Mexican Grill, Inc., No. 12-CV-8333(ALC)(SN), 2017 WL 1287512, at *9 (S.D.N.Y. Mar. 29, 2017)). Nor is efficiency dependent upon sustained certification. “Although decertification precludes the opt-in plaintiffs from trying this case in a single trial, they ‘likely benefitted from the implementation of class-wide discovery on many of the issues relevant to their FLSA claims.’” Goodly, at *7 (decertifying class of the named plaintiff and 14 remaining opt-ins) (quoting Green, 888 F. Supp. 2d at 1104)). Simply stated, a plaintiff who did not even service his own territory on a full-time basis, worked another full-time job and owned another business (Joseph Chavez) is simply not representative of a Plaintiff who personally serviced his distributorship with no employees and claimed to be unaware he could operate other businesses (Mark Baca). [See Doc. 158 at 13] Using either Plaintiff’s testimony as “representative” of all Plaintiffs’ experiences would be fundamentally unfair. No reliable inferences can be drawn about all Plaintiffs’ experiences from either one. Proceeding to a class-wide liability determination with this kind of varied testimony, without providing the opportunity to present individualized evidence to contradict it, would inevitably violate due process rights. IV. CONCLUSION Plaintiffs’ own testimony shows that they each ran their businesses differently. Some operated other businesses, some did not. Some ran their businesses completely or partially through employees they hired, some did not. Some sought to increase their sales “constantly,” some did not. Some negotiated additional display space and different service times with their customers, some did not. Some developed new customers, some did not. Some delivered products using their personal vehicles, some did not. No single Plaintiff, or group of Plaintiffs, can offer testimony fairly “representative” of the others. The Court must decertify this case. Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 12 of 14 13 Respectfully submitted, By: /s/ Carol A. Krstulic Patrick F. Hulla, (admitted pro hac vice) Chris R. Pace Carol A. Krstulic Katherine K. Paulus OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4520 Main Street, Suite 400 Kansas City, MO 64111 Telephone: 816.471.1301 Facsimile: 816.471.1303 katherine.paulus@ogletree.com patrick.hulla@ogletree.com chris.pace@ogletree.com carol.krstulic@ogletree.com Amelia M. Willis, NM Bar No. 144042 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree St. NE, Suite 4800 Atlanta, GA 30303 Telephone: 404.881.1300 Facsimile: 404.870.1732 amie.willis@ogletree.com Margaret Hanrahan Benjamin Holland OGLETREE DEAKINS NASH SMOAK & STEWART, PC 201 South College Street Suite 2300 Charlotte, NC 28244 Telephone: 704.342.2588 Facsimile: 704.342.4379 margaret.hanrahan@ogletree.com benjamin.holland@ogletree.com R. Nelson Franse RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. 201 Third Street NW, Suite 2200 (87103) P.O. Box 1888 Albuquerque, NM 87103 Telephone: 505.765.5900 Facsimile: 505.768.7395 Nfranse@rodey.com ATTORNEYS FOR DEFENDANTS FLOWERS FOODS, INC., AND FLOWERS BAKING CO. OF EL PASO, LLC Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of February, 2019, the foregoing document was electronically transmitted to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jerry Todd Wertheim Samuel C. Wolf Jenny Faye Kaufman JONES, SNEAD, WERTHEIM & CLIFFORD, P.A. 1800 Old Pecos Trail Santa Fe, NM 87505 Telephone: 505.982.0011 Facsimile: 505.989.6288 todd@thejonesfirm.com sam@thejonesfirm.com jenny@thejonesfirm.com ATTORNEYS FOR PLAINTIFFS /s/ Carol A. Krstulic ATTORNEY FOR DEFENDANTS 37442998.1 Case 1:16-cv-00350-JCH-KK Document 178 Filed 02/22/19 Page 14 of 14