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Hanna v. ComTrans Inc.

United States District Court, D. Arizona

October 28, 2016

Gregory Mark Hanna, Plaintiff,
ComTrans Incorporated, et al., Defendants.


          Douglas L. Rayes United States District Judge

         Plaintiff has filed a motion for conditional class certification, (Doc. 27), and a motion to strike, (Doc. 35). Defendants have filed a motion for reconsideration. (Doc. 32.) The motions are fully briefed, and neither party requested oral argument. For the reasons below, all three motions are denied.


         On April 29, 2016, Plaintiff Gregory Hanna filed a collective action under the Fair Labor Standards Act (FLSA) against Defendants ComTrans, Inc.; L. Neal Thomas, President and CEO of ComTrans; and Cynthia Cross, Vice President of ComTrans. (Doc. 1.) ComTrans “is in the business of providing behavioral health and social services transportation to children and adults with special or unique non-emergency circumstances.” (Id., ¶ 20.) It employs over 400 drivers “whose principal business is to provide transportation services for the company's clients. (Id., ¶ 21.) Hanna, a former ComTrans driver, alleges that ComTrans failed to pay him overtime wages in violation of the FSLA. (Id., ¶ 1.)

         ComTrans utilizes different classes of drivers to accomplish different tasks. Drivers are classified as either Crisis Drivers or Routine Drivers. (Doc. 34-1 at 3.) Routine Drivers are further classified into several subcategories: Case Aide/Visitation, DCS Transportation, Schools/Special Needs, Behavioral Health Children, Behavioral Health Adults, Dialysis/Medical, and Friendship. (Id.) Hanna asserts that he worked as a Routine Driver and Case Aide. (Doc. 1, ¶ 23.)

         As a Routine Driver, Hanna operated a ComTrans-owned vehicle to provide transportation services for clients “from their home, health care facilities, and various other locations.” (Doc. 27-3 at 3.) Typically, Hanna worked from 6 a.m. to 6 p.m. driving to scheduled transportation “pick-ups” throughout the day, during which he was required to work numerous hours “but was not allowed to record [his] time” and receive pay. (Id.) For example, he alleges that he was “required to prepare [his] schedule in advance of each day, ” which included downloading the manifest, printing it, locating the first stop, and writing out the route he “was going to take to reach [his] passengers.” (Id.) In addition, he was required to complete paperwork after his shift. (Id.)

         Hanna also asserts that he did not receive compensation for “downtime, which was time longer than thirty minutes in between passenger pick-ups.” (Id.) During this time, he had to wear his ComTrans uniform and “respond to calls from ComTrans dispatch.” (Id.) Hanna did not receive compensation for cancelled pick-ups, turning in his weekly manifest to the ComTrans main office, or performing mandatory maintenance and cleaning his ComTrans vehicle. (Id. at 4.) He further asserts that ComTrans “automatically deducted thirty minutes from [his] work time for lunch, even though [he] was required to respond to dispatch, perform mandatory maintenance on [his] vehicle, and perform other work duties during this time.” (Id.) He was also required to attend Mandatory ComTrans training for which he did not receive compensation. (Id.) Overall, he asserts he worked approximately sixty hours per week. (Id.)

         Hanna alleges that ComTrans “issued extensive written policies and procedures for its employees who worked as routine drivers to follow.” (Id.) He claims all Routine Drivers throughout Arizona “had the same job duties, were subject to the same written rules and policies as [he] was, and were compensated in the same manner[.]” (Id. at 5.) Hanna alleges that his wife also worked as a Routine Driver for ComTrans and that he “observed that all of the policies applicable to me also applied to her[.]” (Id. at 6.)

         Hanna now seeks conditional certification of the following class: “All current and former ComTrans employees who worked as routine drivers for ComTrans from April 29, 2013 to the present.” (Doc. 27-1 at 3.) He seeks unpaid overtime compensation and a declaration that ComTrans violated the FLSA. (Doc. 1 at 13.)


         On August 12, 2016, the Court denied Defendants' motion for extension of time to respond to Hanna's motion for conditional class certification, which was filed on July 18, 2016. (Doc. 31.) Defendants then moved for reconsideration of the Court's order, (Doc. 32), and subsequently filed their response on August 26, 2016, three weeks past the original deadline, (Doc. 34). Thereafter, Hanna moved to strike the response as untimely. (Doc. 35.)

         The Court denies Defendants' motion for reconsideration and denies Hanna's motion to strike Defendants' response. Though the response is untimely, a “motion to strike is a drastic remedy which is disfavored by the courts and infrequently granted.” Vesecky v. Matthews (Mill Towne Center) Real Estate, LLC, No. CV-09-1741-PHX-JAT, 2010 WL 749636, at *1 (D. Ariz. March 2, 2010) (internal quotations omitted). The Court prefers resolving fully briefed motions when possible, and Hanna has not suffered any prejudice resulting from Defendants' untimely response. In the future, however, Defendants must comply with deadlines or risk the Court striking future briefs or pleadings. As such, both motions are denied, and the Court will consider Defendants' response.


         The FLSA prohibits covered employers from employing any employees “for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). “Any employer who violates the provisions of . . . section 207 . . . shall be liable to the employee or employees affected in the amount of . . . their unpaid overtime compensation[.]” Id. § 216(b). A collective action to recover these damages may be brought “against any employer . . . by any one or more employees for and in behalf of himself or themselves and ...

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