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Petrone v. Werner Enterprises, Inc.

United States District Court, D. Nebraska

April 17, 2017

Philip Petrone et al., on behalf of himself and all others similarly situated, Plaintiff(s),
v.
Werner Enterprises, Inc. and Drivers Management, LLC, Defendant(s).

          Justin L. Swidler SWARTZ SWIDLER, LLC ATTORNEYS FOR PLAINTIFFS

          Joseph E. Jones, Elizabeth A. Culhane, FRASER STRYKER PC LLO ATTORNEYS FOR DEFENDANTS

          ORDER ON FINAL PRETRIAL CONFERENCE

         A final pretrial conference was held on the 10th day of April, 2017. Appearing for the parties as counsel were:

         Justin Swidler for Plaintiffs.

         Joseph Jones and Elizabeth Culhane, for Defendants.

         (A) Exhibits. See attached Exhibit List, noting the objections asserted by each side. The Court's current deadline for exchanging Designations of Deposition Testimony and Discovery Responses is April 24, 2017. Because of this deadline, the parties will not have designated deposition testimony or discovery responses or noted their objections to the other party's designations by the April 10, 2017 Pretrial Conference.

         Caution: Upon express approval of the judge holding the pretrial conference for good cause shown, the parties may be authorized to defer listing of exhibits or objections until a later date to be specified by the judge holding the pretrial conference. The mere listing of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met.

         (B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:

         1. This case involves a class of Plaintiffs consisting of over 52,000 over-the-road truck drivers who worked for Werner Enterprises, Inc. and Drivers Management, LLC (hereinafter, collectively, "Werner"), in Werner's student driver program.

         2. During the time class members worked for Werner in the student driver program, the class members rode and drove with an experienced over-the-road truck driver, known as a "driver trainer." 3. Class members recorded their time during the student driver program by electronically inputting their time using one of four duty statuses in a Qualcomm computer unit located in the truck to which each class member was assigned.

         4. Class members recorded their time by logging all time on one of four duty statuses:

o Line 1 - Off-duty;
o Line 2 - Sleeper Berth;
o Line 3 - Driving; and
o Line 4 - On Duty, Not Driving.

         5. Class members were paid a flat rate during the time they worked for Werner as student drivers. The flat rate was supplemented at times by Werner.

         6. Werner only considered Line 3 (Driving) and Line 4 (On Duty, Not Driving) as compensable time.

         (C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

         Plaintiffs' Statement of the Controverted and Unresolved Issues:

         1. Whether class members were on duty continuously for 24 hours or more when class members were working for Werner as over-the-road drivers.

         2. Whether Werner's sleeper berths constituted adequate sleeping facilities.

         3. Whether the time class members spent in Werner's sleeper berths, in excess of 8 hours per day, while working for Werner as over-the-road truck drivers, was compensable.

         4. Whether class members logged more than 8 hours in sleeper berths during continuous on-duty shifts lasting 24 hours or more.

         5. The amount of damages Werner must pay to the Plaintiff class.

         Defendants' Statement of the Controverted and Unresolved Issues:

         1. Because drivers are not entitled to wages for time logged on Line 2 (sleeper berth) unless the driver was required to be on duty continuously for 24 hours or more, the jury must decide whether any class member was required to be on duty continuously for 24 hours or more.

         2. The jury must decide whether class members logged more than 8 hours in the sleeper berth during a continuous on-duty shift lasting 24 hours or more.

         3. The jury must decide the total number of continuous 24-hour shifts, if any, ...


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