United States District Court, D. New Hampshire
David Camp and Keith Hadmack, on behalf of themselves and all others similarly situated, Plaintiffs
Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries Distribution, LLC, Defendants
L. Lichten, Esq. Matthew Thomson, Esq. Christopher B.
Coughlin, Esq. William D. Pandolph, Esq. Michael J. Puma,
Esq. Siobhan E. Mee, Esq.
J. McAuliffe United States District Judge.
bring this wage and hour class action, asserting that
defendants unlawfully treated them as independent contractors
when, in fact, they were employees. As a consequence, say
plaintiffs, they were wrongfully denied overtime pay, denied
reimbursement for work-related expenses, and subjected to
unlawful withholdings from their pay. Defendants deny
plaintiffs allegations and move to dismiss their class action
complaint, asserting that none of plaintiffs' claims
states a viable cause of action. The motion is necessarily
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal punctuation omitted).
other words, “a plaintiff's obligation to provide
the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Instead, the facts alleged in the
complaint must, if credited as true, be sufficient to
“nudge [plaintiff's] claims across the line from
conceivable to plausible.” Id. at 570. If,
however, the “factual allegations in the complaint are
too meager, vague, or conclusory to remove the possibility of
relief from the realm of mere conjecture, the complaint is
open to dismissal.” Tambone, 597 F.3d at 442.
the factual allegations set forth in plaintiffs'
complaint as true - as the court must at this juncture - the
relevant background is as follows. The Defendants, Bimbo
Bakeries USA and Bimbo Foods Bakeries Distribution, are in
the business of manufacturing, selling, and delivering baked
goods under brand names that include Sara Lee and
Nature's Harvest. Complaint (document no. 1) at para. 11.
In New Hampshire, they operate out of terminals located in
Hooksett, Lebanon, and Keene. Id. at para. 12.
Defendants employ approximately 50 people to deliver their
products and stock the shelves at various stores. Defendants
designate those individuals, including the named plaintiffs,
as “independent contractors, ” rather than
“employees, ” and refer to them as
“distributors.” Id. at paras. 13-14.
to plaintiffs, during a typical week they work at least forty
hours delivering baked goods for defendants (plaintiff Camp,
for example, alleges that he typically works six or seven
days each week, for 45-50 hours). Id. at para. 31.
Distributors' work consists mainly of driving to stores
within their designated territories, delivering
defendants' products, and arranging products on the store
shelves according to defendants' display standards.
Id. at para. 17. To secure their employment with
defendants, plaintiffs and other distributors were required
to pay a substantial sum of money to purchase
“distribution rights” and then enter into a
“distribution agreement” with defendants. Based
upon the limited record before the court, those agreements
appear to have been between plaintiffs and defendant Bimbo
Foods Bakeries Distribution (or its predecessor). See
Exhibits A and B to Defendants' Motion to Dismiss
(documents no. 16-2 and 16-3). Most distributors finance the
acquisition of those distribution rights through loans
facilitated by defendants. Complaint at para. 20. Often,
defendants deduct loan payments directly from the pay
provided to distributors. Id. at para. 27.
distribution agreements classify the distributors as
“independent contractors, ” but defendants retain
(and exercise) substantial control over the work performed by
the distributors. Id. at paras. 23-24. According to
plaintiffs, that control includes maintaining supervisory and
disciplinary authority over the distributors; determining the
price at which distributors must sell all food products;
dictating the frequency of deliveries, the manner in which
deliveries are conducted, and the dates by which stale
products must be removed; requiring express approval before a
distributor may sell his or her route (or arrange for a
substitute driver); prohibiting distributors from exercising
independent business judgment, such as determining when a
store is no longer profitable and should no longer receive
deliveries; and prohibiting distributors from participating
in activities, or working for entities, that defendants
consider competitive. Id. at para. 25.
also assert that, even if they were not contractually
prohibited from serving defendants' “competitors,
” given the substantial time required to make their
deliveries on behalf of defendants, they would be precluded,
as a practical matter, from making deliveries for any other
companies. Consequently, distributors are not customarily
engaged in an independently established trade, occupation, or
business of the same nature as the services they provide to
defendants. Id. at para. 29. Moreover, say
plaintiffs, defendants require them to assume many of
defendants' general business expenses, including the cost
of fuel and lease payments for their delivery vehicles, as
well as insurance and maintenance costs for those vehicles.
Finally, defendants do not provide workers' compensation
insurance for plaintiffs and the other distributors.
their complaint, plaintiffs advance five claims against
defendants, under both state and federal law: failure to pay
overtime wages, in violation of the Fair Labor Standards Act;
unlawful withholdings and deductions from wages, in violation
of N.H. Rev. Stat. Ann. (“RSA”) 275:48; failure
to reimburse plaintiffs for various employment-related
expenses, in violation of RSA 275:57; failure to pay overtime
wages, in violation of RSA 279:21; and unjust enrichment, in
violation of New Hampshire common law. As noted above,
defendants assert that none of those claims states a viable
cause of action.
Claims Against Bimbo Bakeries USA.
preliminary matter, defendants move to dismiss all claims
against Bimbo Bakeries USA (“BBUSA”), asserting
that plaintiffs have failed to specifically identify any
alleged wrongdoing on its part. Instead, the complaint simply
groups the named defendants together and routinely ascribes
allegedly wrongful conduct to “defendants, ”
without identifying which defendant engaged in which conduct.
Moreover, defendants point out that BBUSA is not a party to
either of the distribution agreements at issue in the case.
Plaintiff David Camp executed his agreement with Bestfood
Baking Distribution Company (not a party, but apparently the
predecessor to one of the named defendants), and plaintiff
Keith Hadmack executed his agreement with defendant Bimbo
Foods Bakeries Distribution, Inc. Consequently, say
defendants, the complaint fails to adequately allege the
factual predicate necessary to state any viable claims
against BBUSA. The court disagrees.
complaint is sufficient - albeit barely - to survive a motion
to dismiss. Plaintiffs' primary complaint is that they
were improperly treated as independent contractors, rather
than employees. If they prevail on that claim, it will be
necessary to determine which entity acted as their employer
-that is, which entity exercised control over the details of
the performance of plaintiffs' work and the means by
which they performed that work. At this juncture, the
complaint adequately alleges that one or both named
defendants may be liable as ...