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.
before the court are several motions for both substantive and
procedural relief. The court will address each in turn.
Plaintiffs' Motion to Dismiss Counterclaim.
response to plaintiffs' claims that defendants
(collectively “Bimbo Bakeries”) improperly
classified them as independent contractors, Bimbo Bakeries
filed a counterclaim seeking damages for “unjust
enrichment.” In it, Bimbo Bakeries assert that:
if the Court finds that Counterclaim Defendants were
employees of BFBD or its affiliates (which it should not), it
should find that Counterclaim Defendants were
enriched as a result of their status as independent
contractors, including but not limited to, the revenue they
generated and retained by selling certain products to their
customers, the profits generated from the sale and/or partial
sale of their distribution rights to other IBPs, the revenue
generated pursuant to the Advertising Agreements they entered
into with BFBD or its predecessor, and the tax deductions
they took for the costs of operating their businesses.
and Counterclaim (document no. 48) at 30 (emphasis supplied).
In their memorandum of law (document no. 53), defendants more
specifically identify the ways by which they claim plaintiffs
were enriched (presumably, unjustly) by virtue of
their relationships with Bimbo Bakeries.
Plaintiffs profited from their sales of bakery products that
they purchased from BFBD or its affiliates and then sold to
their customers at a higher price.
Plaintiffs entered into commercial Advertising Agreements
pursuant to which they were paid to advertise brands of
certain products created by BFBD or its affiliates on their
clothing and vehicles.
Plaintiffs profited by selling portions of their distribution
rights, as Plaintiff Camp did on two occasions for a total of
nearly $36, 000.
Plaintiffs were able to take tax deductions for costs
associated with running their businesses by virtue of their
independent contractor status.
Defendants' Objection (document no. 53) at 3.
likely an accurate summary of the benefits plaintiffs
realized as a consequence of their relationships with Bimbo
Bakeries. Plaintiffs were “enriched” as a result
of their efforts to sell Bimbo Bakeries' products.
Plaintiffs were also “enriched” as a result of
their agreements to perform various advertising services on
behalf of Bimbo Bakeries. And, plaintiffs likely were able to
avail themselves of various tax deductions available to
independent contractors. But, none of that inured to Bimbo
Bakeries' detriment. Indeed, Bimbo Bakeries were also
“enriched” as a result of their relationships
with plaintiffs and benefited financially from
plaintiffs' efforts to both advertise and sell Bimbo
Bakeries' products. And, by classifying plaintiffs as
independent contractors Bimbo Bakeries no doubt avoided
substantial employer tax (and perhaps insurance) obligations.
That's typically how business relationships work - each
side receives some benefit.
problem with Bimbo Bakeries' counterclaim is that it
fails to plausibly allege how plaintiffs (if properly viewed
as employees) were unjustly enriched, at the expense of
Bimbo Bakeries. Nor does it plausibly allege that
plaintiffs obtained some benefit from Bimbo Bakeries that
would be unjust or inequitable for them to retain if they are
deemed to have been employees. See generally, Estate of
Mortner v. Thompson,170 N.H. 625, 631-32 (2018);
Clapp v. Goffstown Sch. ...