United States District Court, S.D. Illinois
TONY COLLINS, NAIMATULLAH NAYZEE, and ANN MURRAY, for themselves and all others similarly situated, Plaintiffs,
NPC, INTERNATIONAL, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion for Conditional
Certification filed by Plaintiffs Tony Collins, Naimatullah
Nayzee, and Ann Murray on March 31, 2017 (Doc. 18), the
Motion to Compel Individual Arbitration or, Alternatively, to
Stay Proceedings filed by Defendant NPC, International, Inc.
(“NPC”) on May 1, 2017 (Doc. 40), and the Motion
for Protective Order filed NPC on August 7, 2017 (Doc. 71).
Plaintiffs filed a response in opposition to NPC's motion
to compel or to stay proceedings on May 31, 2017 (Doc. 52).
Both parties have supplied the Court with supplemental
authority in support of their respective positions. For the
reasons set forth below, the Court grants NPC's motion to
stay these proceedings pending the Supreme Court's
decision in Lewis v. Epic Systems Corp.
Plaintiffs' motion for conditional certification and
NPC's motion to compel arbitration are denied without
bring this suit as a proposed collective action under the
Fair Labor Standards Act (“FLSA”) as well a
proposed class action under Illinois, Missouri, and Florida
state law. NPC is the largest Pizza Hut franchisee in the
United States, operating more than 1, 240 Pizza Hut
restaurants across the country (Doc. 14, p. 4). Plaintiffs
are delivery drivers for NPC. As delivery drivers, Plaintiffs
all have the same primary responsibility: to deliver pizza
and other food and beverages to customers using their
personal vehicles (Id., p. 5). Plaintiff Collins
works for NPC in Illinois, Plaintiff Nyazee works for NPC in
Missouri, and Plaintiff Murray works for NPC in Florida
(Id., p. 2-3).
allege NPC under-reimbursed its delivery drivers for
vehicular wear and tear, gas, and other driving-related
expenses, effectively paying drivers well below the minimum
wage (Id., p. 2). Plaintiffs claim NPC continues to
under-reimburse them, “preferring to selfishly pocket
excess profits rather than fairly pay its employees.”
(Id.). According to Plaintiffs, NPC requires
delivery drivers to maintain and provide a safe, functioning,
insured, and legally operable automobile to make deliveries.
NPC also requires its delivery drivers to bear all out of
pocket costs associated with their vehicles, including gas,
depreciation, insurance, maintenance, and repairs
(Id., p. 6). Nevertheless, Plaintiffs allege, NPC
only reimburses them between $0.25 and $0.35 per mile - much
lower than the $0.535 mileage rate set by the IRS in 2017
(Id.). Because Plaintiffs and their colleagues
typically drive an average of five to ten miles per delivery
and make an average of four deliveries each hour, Plaintiffs
aver they are under-reimbursed by $4.00 to $12.00 each hour
(Id.). Plaintiffs also claim NPC undercounted the
number of miles they actually drove (Id.).
have moved to conditionally certify a collective of all NPC
drivers (Docs. 19, 20). NPC denies Plaintiffs' claims and
has moved to compel individual arbitration pursuant to an
arbitration agreement signed by each named Plaintiff.
Alternatively, NPC asks the Court to stay all proceedings
until the United States Supreme Court decides the legality of
the class action waivers contained in the arbitration
agreements. See Lewis v. Epic Systems Corp., 823
F.3d 1147 (7th Cir. 2016), cert granted, 85 U.S.L.W.
3343 (U.S. Jan. 13, 2017) (No. 16-285).
arbitration agreement signed by the named Plaintiffs requires
them to use binding individual arbitration for any claims and
expressly prohibits Plaintiffs from acting on behalf of or as
a part of any purported class, collective, representative, or
consolidated action (Docs. 41-2, 41-3 41-4, 41-5, 41-6,
41-7). The provision specifically provides that “the
waiver of Class Action claims and proceedings is an essential
and material term of this Agreement to Arbitrate, and NPC and
I agree that if it is determined by a court of competent
jurisdiction that it is prohibited or invalid under
applicable law, then this entire Agreement to Arbitrate is
held to be unenforceable.” (Id.). Plaintiffs
electronically signed the Arbitration Agreement “in
exchange for my employment or continued employment, as well
as the mutual promises to resolve disputes through
arbitration contained in this Agreement . . . .”
(Id.). Just above the signature line is an
acknowledgment, in bold, that by entering into the agreement,
Plaintiffs were waiving any right to a jury trial or to bring
any employment-related claim as a class, collective,
representative, or consolidated action (Id.).
Seventh Circuit law holds that mandatory arbitration
provisions precluding employees from seeking any class,
collective, or representative remedies to wage-and-hour
disputes are unenforceable because they interfere with
employees' rights to engage in concerted activity under
the National Labor Relations Act (“NLRA”).
Lewis, 823 F.3d at 1155. The Ninth Circuit held
likewise in Morris v. Ernst & Young, LLP, 834
F.3d 975 (9th Cir. 2016). The Second, Fifth, and Eighth
Circuits have all held, however, that employee arbitration
agreements containing class waivers are enforceable. See
Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d
Cir. 2013); NLRB v. Murphy Oil USA, Inc., 808 F.3d
1013 (5th Cir. 2015); Cellular Sales of Missouri, LLC v.
NLRB, 824 F.3d 772 (8th Cir. 2016). On January 13, 2017,
the Supreme Court granted the petition for certiorari in
Lewis and consolidated the case with Morris
and Murphy Oil. The Supreme Court heard oral
argument on October 2, 2017, and an opinion is expected
sometime in early 2018.
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of cases on its
docket with economy of time and effort for itself, for
counsel and for litigants.” Tel. Sci. Corp. v.
Asset Recovery Sols., LLC, No. 15 C 5182, 2016 WL 47916,
at *2 (N.D. Ill. Jan. 5, 2016) (quoting Texas Indep.
Producers & Royalty Owners Ass'n v. E.P.A., 410
F.3d 964, 980 (7th Cir. 2005)). “The decision to grant
a stay is committed to a court's discretion, though that
discretion must be exercised consistently with principles of
fairness and judicial economy.” Walker v. Monsanto
Co. Pension Plan, 472 F.Supp.2d 1053, 1054 (S.D. Ill.
2006) (internal citations omitted). In determining whether to
grant a motion to stay, courts typically consider three
factors: (1) whether a stay will unduly prejudice or
tactically disadvantage the non-moving party; (2) whether a
stay will simplify the issues in question and streamline the
trial; and (3) whether a stay will reduce the burden of
litigation on the parties and the court. Id.
asked the Court to compel arbitration or, alternatively, to
stay the case pending the outcome of the Supreme Court's
review of Lewis. Defendants argue that because the
Supreme Court's decision in Lewis will have a
direct impact on this case, an immediate stay will simplify
the issues in question, streamline the proceedings, and thus,
reduce the burden of litigation on the parties and the court.
Defendant asserts a stay will preserve both the Court's
and the parties' resources in briefing, arguing, and
determining pending and future motions.
oppose NPC's motion to compel arbitration as well as the
alternative request to stay the litigation pending the
Supreme Court's opinion in Lewis. Plaintiffs
argue that a stay would prejudice Plaintiffs and the other
delivery drivers because it would cause claims to extinguish.
Under the FLSA, the statute of limitations continues to run
until a plaintiff opts in to the collective action and files
his or her notice of written consent with the court.
See 29 U.S.C. § 256(b). And, because a
plaintiff's consent does not relate back to the original
filing date of the complaint, waiting to certify the
collective and give notice of the action means potential
plaintiffs' claims could expire. Plaintiffs further argue
that a stay would allow NPC to continue paying unlawfully low
wages and would frustrate the wage and hour laws intended to
protect workers. Finally, Plaintiffs argue that granting a
stay would not meaningfully reduce the burden of litigation
on the Court or the parties. Whether or not the class waiver
in the agreement is enforceable, Plaintiffs assert, the Court
would still be obligated to certify the proposed collective
action because arbitration defenses are irrelevant at the
conditional certification stage.
considering the second and third factors-whether a stay will
simplify the issues in question, streamline the trial, and
reduce the burden of litigation-the Court finds that these
issues weigh in favor of staying the case. Conditionally
certifying a collective and permitting class discovery, only
to later decertify the collective a few months later (if the
Supreme Court reverses the Seventh Circuit in Lewis)
would defeat the purpose of judicial economy. The ruling in
Lewis will have a direct impact on the issues in
this case; in just a few months, Plaintiffs will know whether
the arbitration clause they signed is valid. Under these
circumstances, the Court finds that staying the case is
“reasonable and prudent.” Carter v. Arise
Virtual Sols., Inc., No. 16 C 6262 (N.D. Ill. Feb. 14,
2017) (finding its decision to stay the case pending the
Supreme Court's ruling in Lewis to be
“reasonable and prudent” given that the Supreme
Court's guidance will directly impact the issues raised
by the motion for conditional certification and motion to
compel arbitration); see also Tel. Sci. Corp. v. Asset
Recovery Solutions, LLC, No. 15 C 5182, 2016 WL 47916
(N.D. Ill. Jan. 5, 2016) (staying proceedings pending Supreme