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Petrone v. Werner Enterprises, Inc.

United States District Court, D. Nebraska

May 11, 2017

PHILIP PETRONE, et al., Plaintiffs,
v.
WERNER ENTERPRISES, INC., AND DRIVERS MANAGEMENT, LLC; Defendants. PHILIP PETRONE, et al.; Plaintiffs,
v.
WERNER ENTERPRISES, INC., AND DRIVERS MANAGEMENT, LLC, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motions in Limine, ECF No. 423 in Case No. 11cv401, ECF No. 325 in Case No. 12cv307, filed by Defendants Werner Enterprises, Inc. (“Werner”) and Drivers Management, LLC (collectively “Werner”). For the reasons discussed below, the motions will be granted, in part, in accordance with this Memorandum and Order.[1]

         DISCUSSION

         Werner presents 28 Motions in Limine, which it lists in a single document. ECF No. 423. Plaintiffs do not object to 9 of Werner's Motions. The Court will address each, consistent with the numbering contained in Werner's Motion.

         1. Reference to the SJ Order

          Werner moves to prohibit Plaintiffs, their counsel, and any witnesses from making reference in the presence of the jury to the Memorandum and Order on Summary Judgment (“SJ Order”), ECF No. 347, because the Court revised the SJ Order in its Revised Order. Plaintiffs object to Werner's motion only with respect to those holdings which were not overturned by the Revised Order, but state that they do not plan to make reference to the SJ Order on other matters. Accordingly, Plaintiffs are precluded in limine from offering any evidence or arguments in the presence of the jury regarding the SJ Order as it relates to matters revised by the Court.

         2. Sleeper Berth as an Adequate Sleeping Facility

         Werner argues that Plaintiffs, their counsel, and any witnesses should be precluded from arguing in the presence of the jury, or offering any evidence or other authorities for the purpose of proving, that the sleeper berths in Werner's trucks do not qualify as adequate sleeping facilities within the meaning of 29 C.F.R. § 785.41.

         Section § 785.41 states

Any work which an employee is required to perform while traveling must of course be counted as hours worked. An employee who drives a truck, bus, automobile, plane, or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding except during bona fide meal periods and when he is permitted to sleep in adequate sleeping facilities furnished by the employer.

         Plaintiffs argue that Werner's Motion is inappropriate for an in limine ruling because it goes to legal argument rather than evidence. Further, Plaintiffs argue that the Court has not made a determination as to whether a sleeper berth constitutes an adequate sleeping facility. Plaintiffs cite no authority to support their assertion that a jury must determine whether sleeper berths constitute adequate sleeping facilities. The Court has previously noted that sleeper berths in trucks are adequate sleeping facilities.

         See ECF No. 405, Page ID 42145, 42150. The Department of Labor's Field Operation Handbook states:

Berths in trucks are regarded as adequate sleeping facilities for the purposes of 29 CFR 785.41 and 29 CFR 785.22. However, this rule applies to sleeping berth time of truck drivers or helpers only when they are on continuous tours of duty during trips away from home for a period of 24 hours or more. If the trip begins and ends at the home station and is performed within one working day (less than 24 hours), all time on duty on the truck is time worked (except, of course, for bona fide meal periods) even though some of that time is spent in the sleeping berth. See FOH 31b00.

Field Operations Handbook, 31(b)(09), at 5, (current as of August 10, 2016), available at http://www.dol.gov/whd/FOH/FOHCh31.pdf. The Department of Labor's interpretation is persuasive in this case as to this issue. Accordingly, the Court concludes again that sleeper berths are adequate sleeping facilities for purposes of § 785.41.

         3. Reference to Petition to Appeal

         Werner requests an order in limine prohibiting Plaintiffs, their counsel, and any witnesses from making reference in the presence of the jury to Werner's Petition for Permission to Appeal Pursuant to Fed.R.Civ.P. 23(f), regarding the Court's July 2013 Order certifying a Rule 23 class, and Werner's Petition for Interlocutory Appeal. See Notice of Petition for Interlocutory Appeal, ECF 369. Plaintiffs do not oppose this motion and it will be granted.

         4. References to Willfulness

         Werner requests an order in limine prohibiting Plaintiffs, their counsel, and any witnesses from making reference in the presence of the jury to the Court's findings that Werner willfully violated the law regarding payment for break time, that Werner did not establish a good faith belief that its rest break pay policy was lawful, and that Plaintiffs are entitled to liquidated damages on their short rest break claims. Plaintiffs do not oppose this request and it will be granted.

         5. Denial of Liability on Short Rest Break Claims

         Werner requests an order in limine prohibiting Plaintiffs, their counsel, and any witnesses from making reference in the presence of the jury to the fact that Werner denied liability, that the Court granted Plaintiffs' motion for summary judgment on liability regarding Plaintiffs' short rest break claims over Werner's objection, and/or otherwise referencing the fact that Werner did not admit liability for the short rest break claims in these consolidated cases. The Court granted summary judgment to Plaintiffs as to liability for the short rest break claims. SJ Order, Filing 347, Page ID 20560-61. The only issue remaining for the jury's determination on the short rest break claims is the amount of actual damages, if any, owed to each driver for unpaid rest breaks. Werner asserts that its arguments regarding liability for short rest breaks, made before the Court issued its summary judgment ruling, are not relevant to Plaintiffs' damage claims. Plaintiffs oppose Werner's motion, arguing that a jury learning that Werner previously refused to acknowledge its violations of minimum wage law in this litigation will not cause undue prejudice, but allow the jury to consider the denials in weighing Werner's credibility.

         Despite Plaintiffs' arguments, the relevance of this evidence is not immediately apparent. Courts do not make credibility determinations at the summary judgment stage. See, e.g., White v. Smith, 808 F.Supp.2d 1174, 1239 (D. Neb. 2011) (“[I]t is well-established that courts should not weigh the evidence or make credibility determinations at the summary judgment stage.”). Plaintiffs' argument suggests that they intend to rely on evidence of Werner's denial to support their sleeper berth claims. However, the requirements for compensability of short rest breaks and truck drivers' sleeper berth time are separate and distinct. Thus, it is unclear how evidence of Werner's previous position on one legal issue affects its credibility on a separate issue. Accordingly, Werner's motion will be granted.

         6. Nebraska Wage Payment & Collection Act

         Werner requests an order in limine prohibiting Plaintiffs and their counsel from mentioning the Nebraska Wage Payment & Collection Act (“NWPCA”), Neb. Rev. Stat. §§ 48-1229 through 48-1231, in the presence of the jury or offering the NWPCA into evidence. Plaintiffs listed the NWPCA as Exhibit 28 on their Exhibit list. ECF No. 413, Exhibit 28. However, in April, 2016, this Court dismissed Plaintiffs' NWPCA claims with prejudice. ECF No. 395. Plaintiffs do not oppose Werner's request, provided Werner does not open the door to this issue at trial. Accordingly, Werner's motion will be granted.

         7. Offering 29 C.F.R. ยง ...


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