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Young v. Act Fast Delivery of West Virginia, Inc.

United States District Court, S.D. West Virginia, Beckley Division

October 1, 2019

ERIC YOUNG, Plaintiff,



         The Court has reviewed the Plaintiffs' Motion for Relief from Judgment (Document 355), the Memorandum of Law in Support of Plaintiffs' Motion for Relief from Judgment (Document 356), Omnicare, Inc.'s Memorandum in Opposition to Plaintiffs' Motion for Relief from Judgment (Document 358), and the Plaintiffs' Reply in Support of Motion for Relief from Judgment (Document 359). For the reasons stated herein, the Court finds that the motion should be granted.


         In a Collective Action Complaint (Document 1) filed on October 17, 2016, named Plaintiff Eric Young brought this action asserting violations of the Fair Labor Standard Act (FLSA) on behalf of himself and other similarly situated individuals. Omnicare contracted with nursing homes, long-term care facilities, and other institutions to provide and deliver prescription drugs and other pharmacy and medical supplies. It then contracted with Act Fact as a delivery courier in West Virginia. Act Fast hired the Plaintiffs as delivery drivers, classifying them as independent contractors. The drivers' pay was calculated based on their routes and deliveries. The Plaintiffs' theory was that they were improperly classified as independent contractors, rather than employees, and the failure to pay overtime or to compensate them for expenses related to the use of their personal vehicles for deliveries resulted in minimum wage violations.

         The Court granted conditional certification of the proposed class on August 10, 2017. (Document 145.) The Court permitted the filing of an amended complaint on November 3, 2017. On January 3, 2018, the Court granted the Plaintiffs' motion for partial summary judgment, finding that Omnicare was a joint employer of the Plaintiffs for purposes of the FLSA, and that the Plaintiffs were employees rather than independent contractors. On January 8, the case was stayed as to Act Fast as a result of a bankruptcy filing. The Court certified the class for trial on February 20, 2018. The Plaintiffs voluntarily dismissed Act Fast Delivery, Inc., from the action, without prejudice, on February 23, 2018. Thus, trial proceeded against only Omnicare.

         Trial began on February 26, 2018, and ended on February 28, 2018, with a defense verdict. The Court denied a motion for a new trial, and the Fourth Circuit affirmed the judgment. The Plaintiffs now contend that Omnicare's failure to disclose vital evidence, and repeated claims that it did not possess the requested information, warrants setting aside the judgment under Rule 60(b)(3).

         The discovery process did not proceed smoothly. The Plaintiffs filed several motions to compel, and Judge Aboulhosn granted sanctions against Act Fast for its repeated refusal to comply with court orders and discovery rules. In particular, the Plaintiffs struggled to obtain necessary data reflecting the driver timing and mileage for delivery routes. Omnicare represented that it did not possess such data, and so the Plaintiffs' efforts focused on obtaining the information from Act Fast. Eventually, they resorted to subpoenaing a software developer that maintained the database used by Act Fast, and their experts developed reports and theories based on the limited data available. Because of the delays in obtaining the data, expert information and other documents were still being exchanged in the weeks immediately before trial. Omnicare continued to represent to the Plaintiffs, to the Magistrate Judge during discovery hearings, to the Court during the pretrial conference, and to both the Court and the jury during trial, that it lacked access to data regarding driving time, delivery time, and mileage for both established routes and one-time “stat” deliveries - even as Act Fast was being sanctioned, in part, for failing to turn over that information.

         Evidence at trial centered on the Plaintiffs' use of personal vehicles without reimbursement for driving costs or mileage. Both parties presented expert testimony. The Plaintiffs' expert set forth the drivers' pay, compared against his estimate of the FLSA minimum wage calculated based on a combination of actual data and estimates. The Plaintiffs' experts used the IRS mileage rate as the appropriate reimbursement rate and calculated-again, based in part on estimates-the miles driven. Omnicare argued that the Plaintiffs' experts relied on too many estimates and assumptions. It also repeatedly stressed to the jury that it did not possess knowledge or information of the matters at issue at the time the alleged underpayments occurred.

         Just short of a year after the entry of judgment following the trial, and only about a month after the Fourth Circuit's decision affirming judgment, the Plaintiffs' counsel discovered that Omnicare did possess responsive information. In a similar case being litigated in Kentucky, Omnicare produced Advanced Shipping Notice/Proof of Delivery, or ASN-POD Reports. Those reports “identify the deliveries made by the drivers each day…identify the facility to which the medications were delivered, the driver identification number and first name of the driver, the signature of the nurse(s) who signed for the delivery, the scan time of the pickup, the scan time of the delivery and whether the delivery was on a route or a stat.” (Pl.'s Mem. at 5.)


         Rule 60(b)(3) provides for relief from a final judgment for “fraud…, misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3). “Rather than assess the merits of a judgment or order, it focuses on the unfair means by which a judgment or order is procured.” Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1010 (4th Cir. 2014). The Fourth Circuit has established three factors that must be present for a Rule 60(b)(3) motion to prevail: “(1) the moving party must have a meritorious defense; (2) the moving party must prove misconduct by clear and convincing evidence; and (3) the misconduct prevented the moving party from fully presenting its case.” Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994) (citing Square Constr. Co. v. Washington Metro. Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981)). The court must further “balance the competing policies favoring the finality of judgments and justice being done in view of all the facts, to determine within its discretion, whether relief is appropriate in each case.” Id. (quoting Square Constr. Co., 657 F.2d at 71)). Motions pursuant to Rule 60(b)(3) must generally be made within one year after the entry of judgment. Fed.R.Civ.P. 60(c)(1); Fox ex rel. Fox v. Elk Run Coal Co., 739 F.3d 131, 135 (4th Cir. 2014).


         The Plaintiffs argue that Omnicare's failure to disclose key evidence in this case, forcing them to cobble together data from a third-party source, tainted every aspect of the litigation, trial, and post-trial proceedings. They stress that Omnicare lied repeatedly to Plaintiffs' counsel, the Court, and the jury about its access to the driver data central to the Plaintiffs' claims. Omnicare argues that this is essentially a belated discovery dispute that would not warrant vacating the judgment under any circumstances. It further contends that the motion is untimely and there is no justification for tolling the one-year period for filing a motion pursuant to Rule 60(b)(3).

         The Court finds that the Plaintiffs' motion is not properly barred on timeliness grounds, although it was filed approximately one year and three weeks after the entry of judgment. As an initial matter, this motion was filed the day after the Fourth Circuit issued its mandate affirming the judgment. The courts to consider the issue have found that a pending appeal does not stay the one-year period for filing a motion pursuant to Rule 60(b)(1)-(3). King v. First Am. Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002); Bush v. Dep't of Human Servs., 714 Fed.Appx. 180, 183 (3d Cir. 2017) (unpublished). Nonetheless, given the timing and issues presented in this case, the Court would have found it prudent to defer consideration of this motion while the appeal-which could have reversed or vacated the judgment on other grounds-remained pending. This is not an instance of a party seeking to re-open proceedings that have been treated as final for an extended period. Indeed, the ...

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