Plaintiffs Supplemental Brief In Reply To Defendant Doordash Incs Supplemental Brief Re Application of New Prime Inc V Oliveira

Reply

Cal. Super. - 4th Dist.May 11, 2018

wn A W N No 0 NN AN 10 11 12 13 14 15 16 17 18 19 20 21 2 | 23 24 25 26 27 28 AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 khaque@aegislawfirm.com SAMUEL A. WONG State Bar No. 217104 swong@aegislawfirm.com ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange JESSICA L. CAMPBELL, State Bar No. 280626 02/01/2019 at 03:08:00 PM jcampbell@aegislawfirm.com DANIEL J. HYUN, State Bar No. 309184 dhyun@aegislawfirm.com 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Suhail Farran Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE SUHAIL FARRAN, individually and on behalf of all others similarly situated, Plaintiff, VS. DOORDASH, INC.; and DOES 1-10, inclusive, Defendants. Case No. 30-2018-00992677-CU-OE-CXC Assigned for all Purposes to: Hon. Peter Wilson PLAINTIFF'S SUPPLEMENTAL BRIEF IN REPLY TO DEFENDANT DOORDASH, INC.’S SUPPLEMENTAL BRIEF RE: APPLICATION OF NEW PRIME, INC. v. OLIVEIRA Date: March 7, 2019 Time: 2:00 p.m. Department: CX102 PLAINTIFF'S REPLY TO DEFENDANT’S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. Oo 0 NN S N ni Re W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION Per the Court’s January 15, 2019 Minute Order, Plaintiff Suhail Farran (“Plaintiff”) submits this supplemental brief in reply to Defendant DoorDash, Inc.’s (“Defendant”) supplemental brief regarding the application of the United States Supreme Court’s decision in New Prime, Inc. v. Oliveira, 139 S. Ct. 532 (2019), which held that transportation workers employed under an independent contractor agreement qualify for exemption under section 1 of the Federal Arbitration Act (“Section 17). As explained below, Plaintiff falls within the Section 1 exemption because (1) he was employed as a transportation worker pursuant to Defendant’s Independent Contractor Agreement (“ICA”), (2) Defendant directly engages in interstate commerce, (3) Plaintiff’s job duties were critical to Defendant's operations, (4) Plaintiff belongs to a class of workers engaged in interstate commerce, and (5) Plaintiff transported food that may have originated, or been prepared, across state lines. II. LEGAL ARGUMENT A. The Change in Law and The Court’s Orders Allow Plaintiff to Raise the Section 1 Exemption Defendant argues that Plaintiff waived any Section 1 argument by not raising it in the initial opposition. However, Defendant fails to mention that there was a change in the law, specifically, the United States Supreme Court’s decision in New Prime, Inc. v. Oliveira, 139 S. Ct. 532 (2019) that allows Plaintiff, who was employed by Defendant as an independent contractor, to raise the Section 1 exemption. In addition, the Court expressly allowed the parties to brief the issues regarding the Federal Arbitration Act’s (“FAA”) lack of applicability and the New Prime decision. Accordingly, Plaintiff did not waive his right to raise the Section 1 exemption. B. Plaintiff is Exempt Under Section 1 of the FAA Section 1 of the FAA excludes from the Act’s coverage (1) “contracts of employment” for (2) transportation workers engaged in interstate commerce. 9 U.S.C. § 1 (“nothing herein contained shall apply to contracts of employment of . . . any other class of workers engaged in foreign or -1- PLAINTIFF’S REPLY TO DEFENDANT'S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. © 0 NN OA wn a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interstate commerce.”); Circuit City Stores v. Adams, 532 U.S. 105, 119 (2001) (“Section 1 exempts from the FAA only contracts of employment of transportation workers.”). 1. Under New Prime, an Independent Contractor Agreement is a Contract of Employment Under Section 1 In New Prime, the United States Supreme Court held that “contracts of employment” referred to agreements to perform work, and thus, § 1 of the statute was not limited to only employer-employee contracts but also applied to contracts involving independent contractors. New Prime, supra, 139 S. Ct. 532. Here, Plaintiff performed work for Defendant as a driver under the ICA. Accordingly, Plaintiff satisfies the first requirement under Section 1. 2. Plaintiff Was a Driver Engaged in Interstate Commerce and Defendant is Directly Engaged in Interstate Commerce The remaining inquiry regarding whether Section 1 applies to the instant action is whether Plaintiff “engaged” in interstate commerce. The United States Supreme Court “did not meaningfully elaborate in [Circuit City] on what degree of connection ‘transportation workers’ must have to interstate commerce.” Lee v. Postmates Inc., No. 18-cv-03421-JCS, 2018 U.S. Dist. LEXIS 176965, at *20 (N.D. Cal. Oct. 15, 2018) (citing Circuit City Stores v. Adams, supra, 532 U.S. at 119). However, several circuits have held that “a plaintiff need not personally deliver goods across state lines to qualify as a ‘transportation worker’ under § 1.” Id. at *24 (emphasis added). For example, the Third Circuit defined engaged in interstate commerce as “only those other classes of workers who are actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical effect part of it.” Tenney Eng'g v. United Elec., Radio & Mach. Workers, 207 F.2d 450, 452 3d Cir. 1953) (emphasis added). Similarly, the Sixth Circuit reasoned that “the concern was not whether the individual worker actually engaged in interstate commerce, but whether the class of workers to which the complaining worker belonged engaged in interstate commerce.” Bacashihua v. United States Postal Serv., 859 F.2d 402, 405 (6th Cir. 1988) (emphasis added). Indeed, numerous cases have held that a transportation worker need not directly be 9a PLAINTIFF'S REPLY TO DEFENDANT’S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. OO 00 N N O N Un BR W N N N N N N N N N N r e E E e m e m m m p m e m e m e m ce N N N BR W N = O O N S N R W = o involved with the interstate delivery of goods in order for the exception to apply. Palcko v. Airborne Express, Inc., 372 F.3d 588, 593 (3d Cir. 2004). In Palcko, the court rejected an argument by the employer that a supervisor that was “not directly involve[d] in the interstate delivery of packages” did not qualify for the Section 1 exemption Id. The court reasoned that if it were to accept the employers limitation “to those truck drivers who physically move the packages” then “we would unnecessarily narrow the section 1 exemption in a way never intended by the FAA; had Congress intended the residual clause of the exemption to cover only those workers who physically transported goods across state lines, it would have phrased the FAA’s language accordingly.” Id. (emphasis added). Since the employee supervised package shipments, the court reasoned that the employee’s work was “so closely related [to interstate and foreign commerce] as to be in practical effect part of it.” Id. Accordingly, the court found that a supervisor who did not physically transport goods across state lines was “a transportation worker engaged in interstate and foreign commerce under section 1 of that statute.” Id. at 593-94. Likewise, in Zamora v. Swift Transp. Co., 2008 U.S. Dist. LEXIS 49990, 2008 WL 2369769, *25 (W.D. Tex. June 3, 2008), a manager who did not engage in delivering goods was nevertheless exempt under § 1 because his job was “critical to the operation of the trucks, the trucking terminal and the trucking company,” which operated in interstate commerce. And in Bacashihua, a postal worker who was not herself “personally engaged in interstate commerce” nevertheless fell within the § 1 exception. Bacashihua, supra, 859 F.2d at 403 (plaintiff was employed by the Postal Service as a parcel post distributor at the Bulk Mail Center). Finally, in Christie v. Loomis Armored US, Inc., No. 10-cv-02011-WIM-KMT, 2011 U.S. Dist. LEXIS 141994, 2011 WL 6152979, at *8 (D. Colo. Dec. 9, 2011) an armored vehicle driver employed to transport currency by a defendant “engaged in the business of interstate transport of currency” was a member of “a class of workers engaged in interstate commerce and is therefore exempt from the FAA pursuant to Section 1,” even though there was no evidence that the plaintiff herself] ever delivered goods across state lines. Defendants reliance on Levin v. Caviar, Inc., 146 F. Supp. 3d 1146, 1153 (N.D. Cal. 2015) is misplaced. In Levin the “Defendant [did] not identify itself as being engaged in the ey PLAINTIFF’S REPLY TO DEFENDANT’S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. OO 0 NN ON Un pb W N N N N N O N N N N N m e m e m p m m m e m ed p m e d 0 N S N Un BA W N = O V O N N N R W = o interstate transport of goods, as the employer in Christie did.” Id. (emphasis in original). Here, unlike Levin and like Christie, Defendant identifies itself as being “directly involved in interstate commerce.” Declaration of Cody Aughney in Support of Defendant’s Supplemental Brief re Application of FAA (“Aughney Decl.”), § 4. Indeed, Defendant expressly states that its “business is conducted throughout the United States” and “engages in a multistate business, allowing Dashers to accept delivery opportunities in at least 40 states, such as California, Washington, Minnesota, Texas, Indiana, Arizona, Illinois, Massachusetts, New York, and Georgia. DoorDash also operates in the District of Columbia and throughout Canada.” Id. (emphasis added). Further, Defendant’s “mobile application (the "DoorDash app") is Internet-based. Transactions conducted via the Door Dash app involve instrumentalities of interstate commerce including the Internet, and technological infrastructure in various states. DoorDash offers its technology platform for use in each of the states where Dashers are able to accept delivery opportunities, and operates offices that engage in business in many of those states. Aughney Decl., § 5 (emphasis added). In addition, Defendant “advertises its platform to potential customers, Dashers, restaurants, and other businesses on the Internet. DoorDash also communicates with customers, Dashers, restaurants, and other business located in other states by telephone, mail, and email.” Id. at 6. Finally, Plaintiff and other drivers “are able to accept delivery opportunities both in the state where they first signed up . . . and in any other state in which DoorDash operates. Likewise, customers who use the DoorDash app to place orders may do so in any state in which Door Dash operates, regardless of where they created their Door Dash account.” Id. at J 7-8 (emphasis added). Accordingly, similar to the defendants in Christie, Palcko, Zamora, and Bacashihua, Defendant is directly “engaged in interstate commerce.” In addition, like the plaintiffs in Christie, Palcko, Zamora, and Bacashihua, Plaintiff and other drivers (despite not crossing state lines) are closely related and critical to the operation of] Defendant which operates in interstate commerce. In addition, Plaintiff and other drivers belong to a class of workers engaged in interstate commerce, as Defendant is in the business of providing delivery services throughout the United States. And like the plaintiff in Christie and Bacashihua, 4- PLAINTIFF’S REPLY TO DEFENDANT’S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. OO 0 NN A N nh BA W N N D N N N N N N N N =m mm mm mm e m e m m a p m a e m © N N B R A W N = O 0 N N N R W eRe Plaintiff and drivers like him facilitate the transportation of food that may have originated, or been prepared, across state lines to customers at their homes and businesses and by delivering food orders to consumers, the drivers serve as the final step in the flow of food items in interstate commerce. Therefore, Plaintiff falls within the Section 1 exception. Accordingly, Plaintiff falls within the Section 1 exemption because (1) he was employed as a transportation worker as an independent contractor, (2) Defendant directly engages in interstate commerce, (3) Plaintiff’s job duties were critical to Defendant’s operations, (4) Plaintiff belongs to a class of workers engaged in interstate commerce, and (5) Plaintiff transported food that may have originated, or been prepared, across state lines. III. CONCLUSION Accordingly, the Court should find that Plaintiff is exempt from the FAA. Dated: February 1, 2019 AEGIS LAW FIRM, PC - Daniel J. Hyun Attorney for Plaintiff Suhail Farran -5- PLAINTIFF'S REPLY TO DEFENDANT’S SUPPLEMENTAL BRIEF RE: NEW PRIME, INC. Oo 0 NN A N Ln hh W N -~ N N N N N N N N N = o m m d fe m p m p m p m md p d e m c o NN O N Un hh W I N E OS OVO NN S N R E W I N D E R E D CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On February 1, 2019, I served the foregoing document entitled e PLAINTIFF'S SUPPLEMENTAL BRIEF IN REPLY TO DEFENDANT DOORDASH, INC.’S SUPPLEMENTAL BRIEF RE: APPLICATION OF NEW PRIME, INC. v. OLIVEIRA on all the appearing and/or interested parties in this action by placing [| the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Stephanie Balitzer Joshua S. Lipshutz sbalitzer@gibsondunn.com jlipshutz@gibsondunn.com Michael Holecek Austin V. Schwing mholecek@gibsondunn.com aschwing@gibsondunn.com Theane Evangelis Peter C. Squeri tevangelis@gibsondunn.com psqueri@gibsondunn.com GIBSON DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 333 S Grand Ave San Francisco, CA 94105 Los Angeles, CA 90071 Andrew M. Spurchise aspurchise@littler.com Sophia Behnia sbehnia@littler.com LITTLER MENDELSON P.C 333 Bush Street, 34% Floor San Francisco, CA 94105 Attorneys for Defendant: Doordash, Inc. P< (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2XE); Fed. R. Civ. Proc. 5(b)(3).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 1, 2019, at Irvine, California. CERTIFICATE OF SERVICE