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Mervyn v. Nelson Westerberg, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 16, 2014

THOMAS MERVYN, individually and on behalf of all others similarly situated, Plaintiff,
v.
NELSON WESTERBERG, INC., NEWESCO, INC., NELSON WESTERBERG INTERNATIONAL, and ATLAS VAN LINES, INC., Defendants

For Thomas Mervyn, Plaintiff: Marvin Alan Miller, LEAD ATTORNEY, Andrew Szot, Lori Ann Fanning, Matthew E Van Tine, Miller Law LLC, Chicago, IL; Edward Dennis McNamara, Jr., McNamara & Evans, Springfield, IL.

For Nelson Westerberg, Inc., Atlas Van Lines, Inc., Defendants: David H. Levitt, Steven M. Puiszis, LEAD ATTORNEYS, Hinshaw & Culbertson, Chicago, IL.

For Newesco, Inc., Defendant: David H. Levitt, LEAD ATTORNEY, Hinshaw & Culbertson, Chicago, IL.

For Nelson Westerberg International, Defendant: David H. Levitt, Steven M. Puiszis, LEAD ATTORNEYS, Hinshaw & Culbertson, Chicago, IL.

Page 716

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge.

In this putative class action against Nelson Westerberg, Inc., Newesco, Inc., Nelson Westerberg International (collectively " Newesco" ), and Atlas Van Lines, Inc., Thomas Mervyn alleges violations of 49 C.F.R. § 376.12, a provision of the Truth-in-Leasing regulations promulgated by the Federal Motor Carrier Safety Administration to implement the Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793 (codified as amended in scattered sections of 49 U.S.C.), as well as common law unjust enrichment. Docs. 1, 27. The court denied Defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), except insofar as the complaint sought the remedies of disgorgement, restitution, or constructive trust for the § 376.12 claims. Docs. 108-09, 2012 WL 6568338 (N.D. Ill.Dec. 17, 2012). After Defendants moved for summary judgment, Doc. 135, the court granted Mervyn's request for additional discovery under Rule 56(d), Doc. 156. Defendants then supplemented and renewed their summary judgment motion. Doc. 168. The motion is denied.

Background

The following facts are set forth as favorably to Mervyn as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Only those facts pertinent to the legal issues discussed below or that provide appropriate background are included.

Mervyn is an independent owner-operator of a moving truck who has driven trucks and leased them to various entities for decades. Doc. 216 at ¶ 1. In February 2010, Mervyn entered into a Contractor Agreement and Lease (" Lease" ) with Newesco to haul shipments for Atlas, with Newesco designated as " Agent," Mervyn designated as " Contractor," and Atlas designated as " Carrier." Doc. 176 at ¶ 1; Doc. 216 at ¶ ¶ 13-14. The Lease sets forth the terms and conditions of Mervyn's relationship with Newesco and Atlas, including compensation. Docs. 177-1, 177-2. Mervyn hauled thirty-three shipments before terminating the Lease in January 2011. Doc. 176 at ¶ ¶ 1, 18.

Discussion

I. The § 376.12 Claims

Mervyn's § 376.12 claims allege that Defendants, by violating various provisions of the Lease, also violated § ...


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