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Owner-Operator Indep. Drivers Assoc., Inc. v. Supervalu, Inc.: US District Court : TRANSPORTATION | EVIDENCE - expert's survey Questions ambigious, unreliable; arguments that reimbursed action can't have been coerced rejected

Civil No. 05-2809 (JRT/JJG)
Randall Herrick-Stare, Paul D. Cullen, Sr., and Paul D. Cullen, Jr., THE
CULLEN LAW FIRM, 1101 Thirtieth Street NW, Suite 300, Washington
D.C. 20007; Andrew J. Morrison, KOLL MORRISON CHARPENTIER
& HAGSTROM, 332 Minnesota Street, Suite W-1430, St. Paul, MN
55101, for plaintiffs.
Steven J. Wells, Gabrielle D. Mead, Jessica J. Nelson, Michael Iwan, and
Steven J. McLaird, DORSEY & WHITNEY LLP, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402-1498; Seth J. Leventhal, DANIELS
WYMORE PLLC, 3165 Fernbrook Lane North, Plymouth, MN 55447, for
Plaintiffs Owner-Operator Independent Drivers Association, Inc. (OOIDA),
Joseph Rajkovacz, Carl Schaefer, and Carl Schaefer LLC (collectively, plaintiffs)
brought this action alleging that defendant Supervalu, Inc. (Supervalu) violated 49
U.S.C. 14103. Supervalu now moves for summary judgment on plaintiffs declaratory
and injunctive relief claims, and moves to exclude the plaintiffs expert reports and expert
Plaintiff OOIDA is a non-profit trade association of professional truck drivers who
own and operate heavy-duty trucks. OOIDA brings this action in a representative
capacity. OOIDA drivers typically contract with vendors for transportation services and
many transport goods to defendant Supervalu, a grocery wholesaler and retailer. Plaintiff
Joseph Rajkovacz was an independent truck owner-operator providing interstate
transportation of property for compensation on a per-load basis, and he delivered goods
to Supervalu during the class period. He left the business in April 2006, but he is still a
member of OOIDA. Plaintiff Carl Schaefer is a one-person motor carrier who provides
interstate transportation of property for compensation on a per-load basis. Plaintiff Carl
Schaefer LLC is a limited liability company of which Carl Schaefer is the sole owner and
Plaintiffs have all engaged in the delivery of goods to Supervalu, a grocery
wholesaler and retailer. Under federal law, any contract between a motor carrier and any
other person relating to a delivery shall specify, in writing, who is responsible for
loading and unloading the property . . . from the motor vehicle. 49 U.S.C. 14102(b).
In the past, small groups of unloaders or lumpers unaffiliated with defendant Supervalu
would gather at Supervalus distribution centers and offer unloading services to drivers.
In 2005, Supervalu entered into exclusive contracts with two professional unloading
services to provide all unloading services at its distribution centers.
In March 2005, Supervalu adopted a new insurance coverage requirement for
drivers who wished to unload their own vehicles. Supervalu required the drivers to show
proof of general liability insurance of million annual aggregate and million per
occurrence limit, automobile liability insurance in the amount of million combined
single limit coverage, and fidelity bond or crime insurance of ,000, although the last
requirement was promptly eliminated after being initially posted. This insurance
coverage requirement was in excess of the statutory minimum under 49 U.S.C.
31139(b), which requires those who transport property by commercial motor vehicle to
carry insurance of at least 0,000. In August 2005, Supervalu reduced the insurance
coverage requirement to million aggregate and million per occurrence. After
plaintiffs commenced this lawsuit on December 5, 2005, Supervalu modified the
insurance coverage requirement once again, and now only requires that drivers who wish
to unload their own vehicles show proof of compliance with 49 U.S.C. 31139(b).
Plaintiffs brought this action under 49 U.S.C. 14103, challenging the insurance
coverage requirement and Supervalus practice of receiving goods on pallets, allegedly
without the provision of proper unloading equipment. Specifically, plaintiffs allege
violations of 14103(a), arguing that the insurance requirement and failure to provide
adequate unloading equipment constituted requirements to be assisted by lumpers in
unloading their trucks, and that plaintiffs were not reimbursed for employing that
assistance. Plaintiffs also allege violations of 49 U.S.C. 14103(b), claiming that
Supervalu, through the same practices that constituted requirements under 14103(a),
coerced or attempted to coerce plaintiffs to employ or pay lumpers to unload property
from their motor vehicles at Supervalu docks. Plaintiffs sought restitution, declaratory
judgment, and injunctive relief for those violations. The Court granted Supervalus
motion for summary judgment on the restitution claims in an earlier Order. Owner-
Operator Indep. Drivers Assn, Inc. v. Supervalu, Inc., No. 05-2809, 2007 WL 1576120,
at *4-5 (D. Minn. June 27, 2007).
The Court certified a class for plaintiffs declaratory judgment and injunctive
relief claims arising out of 14103(a) as those claims relate to Supervalus insurance
coverage requirement. The class is defined as All owners or operators of motor-vehicles
used to deliver carrier loads to Supervalus distribution centers between March 28 and
December 21, 2005, who a) at the time of delivery, did not meet Supervalus minimum
proof of insurance requirement then in effect; and b) paid for lumping services.
Supervalu, 2007 WL 1576120, at *7-9. The Court later certified a class under the same
definition for plaintiffs declaratory judgment and injunctive relief claims under
14103(b) regarding whether the heightened insurance requirement constituted an attempt
to coerce plaintiffs to employ lumpers. The remainder of plaintiffs claims, which relate
to actual coercion under 14103(b) and to all claims based on the failure to provide
adequate unloading equipment, are not certified as a class.
Supervalu now moves for summary judgment, or in the alternative for class
decertification. Supervalu also moves to exclude plaintiffs expert reports and testimony.
For the reasons stated below, the Court grants in part and denies in part Supervalus
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Section 14103(a) provides that if
a shipper or receiver of property requires that any person who owns or
operates a motor vehicle transporting property in interstate commerce . . .
be assisted in the loading or unloading of such vehicle, the shipper or
receiver shall be responsible for providing such assistance or shall
compensate the owner or operator for all [associated] costs.
49 U.S.C. 14103(a). During the class period, plaintiffs allege that Supervalu required
motor vehicle owners and operators to be assisted with unloading in two ways. First,
plaintiffs allege that Supervalus requirement of proof-of-insurance coverage above the
statutory minimum, see 49 U.S.C. 31139(b), effectively precluded the drivers option to
unload their own trucks because the drivers could not afford the additional insurance
coverage.1 Second, plaintiffs allege that by electing to receive its goods on palletized
freight without providing drivers access to adequate unloading equipment, Supervalu
drivers were required to employ lumping services for assistance in unloading their trucks.
A. Reimbursement
Supervalu argues that even if the Court concluded that those actions did or did not
constitute requirements, which Supervalu does not concede, plaintiffs have failed to
produce evidence that class members were not reimbursed. The Court previously held
that [t]o prove that Supervalu violated 14103(a), plaintiffs must show that neither a
receiver nor a shipper paid a driver for lumping service costs incurred at Supervalu.
Supervalu, 2007 WL 1576120, at *6; see also 49 U.S.C. 14103(a) (noting that where
the receiver requires that a driver be assisted in unloading, the shipper or receiver shall
be responsible for providing such assistance or shall compensate the owner or operator
for all [associated] costs. (emphasis added)). The Court reasoned, Allowing payment
by a shipper to relieve a receiver from having to compensate a driver when the receiver
1 The Court previously concluded that Supervalu cannot be considered to have required
the use of lumpers solely by its imposition of a requirement for insurance above the statutory
minimum if the insurance coverage requirement is reasonable. On the other hand, if the
insurance coverage requirement was unreasonable and unattainable for drivers, Supervalu could
be considered to have in effect required drivers to pay for lumping services in violation of
14103(a). Supervalu, 2007 WL 1576120, at *3. Although the parties do not abandon their
arguments regarding whether these actions constituted requirements, the focus of their dispute at
summary judgment is whether there is a fact question regarding reimbursement for lumping
requires a driver to use lumpers may be burdensome for the driver, but this interpretation
is not absurd. Supervalu, 2007 WL 1576120, at *6.
Plaintiffs respond that only reimbursement by a shipper is sufficient to satisfy
14103(a)s statutory requirements and argue that they have produced substantial
evidence that class members were not reimbursed by shippers. (See, e.g., Pl.s Oppn
Mem., Docket No. 253 at 16). Moreover, plaintiffs contend that many of the
reimbursements at issue were made by one class member, such as a motor carrier, to
another class member, such as an owner-operator. According to plaintiffs, such
reimbursement does not relieve Supervalu of its liability under 14103(a). (Id.)
Plaintiffs arguments, however, are clearly contradicted by the Courts prior holding and
fail to account for the nature of the trucking industry.
The Court has held that plaintiffs must show that neither a receiver nor a shipper
paid a driver for lumping service costs incurred at Supervalu. Supervalu, Inc., 2007 WL
1576120, at *6 (emphasis added). To the extent that plaintiffs argue that reimbursement
by one class member to another may not relieve Supervalu of liability, plaintiffs fail to
present evidence that where one class member reimbursed another class member, the
former was not reimbursed by a shipper or receiver. Moreover, if the Court concluded
that only direct reimbursement from a shipper or receiver satisfied 14103(a), plaintiff
Joseph Rajkovacz (who admits that he was reimbursed by a broker, which was
reimbursed by a shipper) would be entitled to double compensation for employing
lumping services. The argument that the statute would permit such double recovery,
however, is untenable. Mere indirect reimbursement will not allow plaintiffs to proceed
with their claims of non-reimbursement.
Plaintiffs present affidavits, deposition testimony, Rule 26(a) disclosures, and the
expert report of Dr. Stanley Sedo to demonstrate that plaintiffs and other members of the
class were not reimbursed for lumping services at Supervalu docks. (Id. at 16.) For the
following reasons, this evidence is not sufficient to establish that members of the class
were not reimbursed.
Plaintiffs cite their Rule 26(a) supplemental disclosures, but only one individual
listed in the disclosures claims that he was not reimbursed for lumping services by a
broker, motor carrier, shipper, or receiver. (Ex. 12 at 2, 4, 5, and 6.) Even then, the
declaration states only that the individual may have documentation regarding deliveries
and use of lumpers. (Id. at 2 (emphasis added).) Plaintiffs also note that another class
member, Phillip Powers, indicated that he was not reimbursed by the shipper on two
separate occasions after Powers employed lumpers at a Supervalu site. (Powers Decl.,
Docket No. 211, Ex. 10, 4-5.) Powers does not indicate, however, that he was not
reimbursed by someone other than a shipper (e.g., by a freight brokers). (Id.)
Plaintiffs further cite the representative plaintiffs deposition testimony, but in the
lone instance in which plaintiff Joseph Rajkovacz claims that he was not reimbursed by
Supervalu, (Rajkovacz Dep., Docket No. 254, Ex. 3 at 104-05), there is no indication that
the incident occurred during the class period or that Rajkovacz was required under the
circumstances to hire lumpers. Further, there is no evidence at all that Schaefer was not
reimbursed after he employed lumpers at Supervalu sites.
Finally, plaintiffs direct the Court to the declaration of class member Howard
Cowan, who states, With regard to lumper fees I paid at Supervalu sites, I sought
reimbursement of them from brokers and shippers, but those requests for reimbursement
were rejected. (Cowan Decl., Docket No. 211-17.)
Yet plaintiffs have not presented more than a scintilla of evidence that drivers
were not reimbursed for lumping services at Supervalu docks. See Frosty Treats, Inc. v.
Sony Computer Entertainment Am. Inc., 426 F.3d 1001, 1005 (8th Cir. 2005). The Cowan
declaration, alone, clearly avers a driver was not reimbursed by any party, but even that
assertion fails to identify any specific incident of non-reimbursement. Moreover, the
Cowan declaration represents the only evidence that a class member was not
appropriately reimbursed, despite the extensive number of deliveries to Supervalu
loading docks during the class period. Accordingly, Supervalus motion as to claims for
declaratory judgment and injunctive relief arising under 14103(a) is granted.
B. Dr. Sedos Expert Report
In their attempt to provide evidence of non-reimbursement, plaintiffs also cite
Dr. Stanley Sedos expert report (the Sedo Report), which opines that a significant
percentage of class members were not reimbursed by Supervalu for employing lumping
services. The Sedo Report, however, does not identify any specific incident in which
Supervalu did not reimburse its drivers. Rather, the report is based on the compiled
responses from a survey of OOIDA members, which was designed and conducted by
OOIDA employee Thomas Weakley. Supervalu moves to exclude the Sedo Report,
arguing that its methodology is fundamentally flawed.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
testimony. Fed. R. Evid. 702. Under Rule 702, proposed expert testimony must satisfy
three prerequisites to be admitted. See Lauzon v. Senco Prods. Inc., 270 F.3d 681, 686
(8th Cir. 2001). First, evidence based on scientific, technical, or specialized knowledge
must be useful to the finder of fact in deciding the ultimate issue of fact. Id. Second, the
proposed witness must be qualified. Id. Third, the proposed evidence must be reliable or
trustworthy in the evidentiary sense, so that if the finder of fact accepts it as true, it
provides the assistance the finder of fact requires. Id. The district court has a
gatekeeping obligation to make certain that all testimony admitted under Rule 702
satisfies these prerequisites. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597-
98 (1993). But an expert's opinion should be excluded as unreliable only if that opinion
is so fundamentally unsupported that it can offer no assistance to the jury. Bonner v.
ISP Techs., 259 F.3d 924, 929 (8th Cir. 2001).
The Court agrees with Supervalu that the Sedo Report must be excluded. The
Sedo Report is based on interpretations of the results of a questionnaire conducted by
Weakley, who had no expertise in conducting surveys. Further, the substance of the
questionnaire yields grave concerns about the reliability of Dr. Sedos analysis.
Supervalus rebuttal expert, Paul A. Talmey, notes that the population surveyed was
improperly defined and was not representative of the target population. (Talmey Report
at 6.) Talmey also notes concerns with the accuracy of the reporting of data, the failure
to analyze the data in accordance with acceptable statistical principles, and the lack of
safeguards to ensure objectivity in the survey process.
More importantly, some of the surveys questions were so ambiguous that any
report on or analysis of answers to those questions is unreliable and untrustworthy. For
example, questions 4a through 4c of the survey ask OOIDA members: For the deliveries
you made in the last 12 months at docks, approximately how many of them were
unloaded: a. By yourself, b. By someone else at no cost to you, or c. By someone else at
cost to you. It is unclear, however, what the phrase cost to you means. At the very
least, it conflates the ideas of payment and reimbursement such that an individual who
was reimbursed for lumping services could answer b or c with equal honesty and
accuracy. Dr. Sedo, however, attempts to extrapolate from those answers conclusions
regarding the reimbursement of class members. Given the nature of the legal and
factual issues discussed above, the survey provides unsound bases for Sedos conclusions
and is not sufficiently probative to be considered as evidence of non-reimbursement.
Although the Court concedes that many reliable statistical studies may have
flaws, the flaws in the Sedo Report are significant. Accordingly, the Court grants
Supervalus motion to exclude the Sedo Report. The Court defers decision, however, on
Supervalus motion to exclude plaintiffs additional expert reports and testimony, and
will address any residual issues regarding those reports if the case proceeds to trial.
49 U.S.C. 14103(b) provides that it is
unlawful to coerce or attempt to coerce any person providing transportation
of property by motor vehicle for compensation in interstate commerce . . .
to load or unload any part of such property onto or from such vehicle or to
employ or pay one or more persons to load or unload any part of such
property onto or from such vehicle.
Plaintiffs contend that by requiring drivers to carry higher insurance coverage than the
statutory minimum and by receiving palletized freight without providing drivers with
adequate unloading equipment, Supervalu coerced or attempted to coerce drivers to
employ and pay lumpers.
The parties dispute the definition of coercion, which the Court defined as to
bring about by force or threat. Owner-Operator Indep. Drivers Assn, Inc. v. Supervalu,
Inc., No. 05-2809, 2008 WL 706600, at *3 (D. Minn. March 14, 2008) (quoting The
American Heritage Dictionary of the English Language (4th ed. 2004)). Supervalu
contends that under 14103(b), coercion must involve some independently wrongful
act that forces a driver to use lumping services and that causes harm over and above
unloading expenses for which a driver may be reimbursed pursuant to 14103(a). (Def.
Supp. Mem., Docket No. 240 at 16.) That is, Supervalu argues that a requirement to
employ lumpers under 14103(a), when accompanied by reimbursement for the drivers
expenses, cannot also constitute illegal coercion under 14103(b) because such a
construction would render subsection (a) superfluous. (Id.)
The Court disagrees. The question of reimbursement is unique to subsection (a).
That is, whether or not an individual is reimbursed for the employment of lumping
services is irrelevant to the question of whether Supervalu coerced or attempted to coerce
drivers to use contracted lumping services. The two provisions require proof of entirely
different elements. A violation of subsection (b)s prohibition on actual coercion occurs
when a driver succumbs to force or threat and employs others to unload property from his
truck. A violation for an attempt to coerce under subsection (b) would occur even before
that moment in time, as proving attempt does not require actual harm to the drivers. See
Supervalu, 2008 WL 706600, at *3 ([P]roving an attempt clearly requires much less
[than proving actual coercion].). On the other hand, a violation of subsection (a) occurs
when the driver is not reimbursed for expenses for employing lumping services which
would likely occur well after the driver had left the unloading dock.
Subsection (b) simply requires that Supervalu attempted to use or used force or
threat to ensure that class members employed lumpers to unload property from their
trucks. The legislative history supports such a basic definition, indicating that 14103
was designed to prohibit coercive or extortionate practices. Jessep v. Jacobson Transp.
Co., Inc., 350 F.3d 739, 742 (8th Cir. 2003) (citing H.R. Rep. No. 96-1069, 96th Cong., 2d
Sess., 31 (1980)).
The Court now turns to the Supervalu practices alleged by plaintiffs to constitute
attempts to coerce or actual coercion under 14103(b).
A. Insurance Coverage Requirement
1. Declaratory Relief
Plaintiffs argue that Supervalus heightened insurance coverage requirement
amounted to attempted coercion because if a driver was unable to provide proof of the
higher coverage, the only other options for the driver were to hire a lumping service or
leave the dock without unloading the cargo, which plaintiffs contend is not a real option
for drivers. (Pl.s Oppn Mem., Docket No. 253 at 25-26.)
Plaintiffs present evidence that Supervalu may have had a financial motive to
provide such a Hobsons Choice to drivers. For example, plaintiffs point to an e-mail
from the head of Supervalus Risk Management department to the head of Strategic
Sourcing, which stated, these [insurance] limits are relatively high. If you recall, our
earlier discussions were along the lines that we wanted to discourage having people other
than our national contracted lumpers do the unloading. (Docket No. 254, Ex. 14.)
Further, plaintiffs produce a PowerPoint presentation by Supervalu that indicated that
Supervalu would benefit from a significant increase in revenues from fees paid to it by
lumping services, assuming that drivers used lumping services instead of unloading the
trucks without assistance. (Id., Exs. 5, 6; Hagen Dep., Docket No. 254, Ex. 16 at 111-15
(If those drivers hired the lumpers there was a potential for increased revenue by those
amounts. If the driver saw value in our unloading service and wanted to hire them there
was an opportunity.).) Plaintiffs further introduce expert reports and testimony
suggesting that drivers are susceptible to coercion to unload at docks, particularly given
that time spent at docks unloading or waiting to unload may cost a driver more money
than the lumping services. (Pl.s Oppn Mem., Docket No. 253 at 27-28.)
Although Supervalus motive for implementing the insurance coverage
requirement may not be dispositive to the determination that Supervalu attempted to
coerce class members into employing lumping services, its possible motive is still
relevant. Plaintiffs further provide deposition testimony and other evidence that if the
driver did not carry the higher insurance coverage, employing and paying lumpers was
the only remaining option because leaving the docks without unloading was not feasible.
If drivers were given no meaningful alternative outside of complying with the insurance
requirement or employing lumpers, a rational trier of fact could find that Supervalu
attempted to force class members to use lumping services. Moreover, plaintiffs need not
establish that any driver suffered actual harm to prove an attempt to coerce. See
Supervalu, 2008 WL 706600, at *3. Accordingly, Supervalus motion as to the classcertified
claim for declaratory judgment based on Supervalus attempted coercion is
There is also a dispute of fact regarding whether Supervalu actually coerced
individual plaintiffs Joseph Rajkovacz and Carl Schaeffer. The Court previously held
that [t]he determination of whether drivers were [actually] coerced by the insurance
coverage requirement will also require a fact-laden inquiry into the reasonableness of the
insurance coverage requirement. In addition, it will require an individualized inquiry as
to each drivers situation. Supervalu, 2007 WL 1576120, at *3 n.5.
At summary judgment, Supervalu rests solely on its argument that a requirement
under 14103(a) cannot constitute coercion under 14103(b). The Court has rejected
that interpretation of the statute. Further, in addition to producing evidence that drivers
without the higher insurance coverage were not given feasible alternatives to hiring
lumpers, Supervalu has introduced testimony by plaintiffs Rajkovacz and Schaefer
stating that because they did not have documentation of Supervalus required insurance
coverage, and in the face of leaving the loading docks without unloading, they were
forced to hire lumpers. (Rajkovacz Dep., Docket No. 254, Ex. 3 at 102-03; Schaefer
Dep., Docket No. 254, Ex. 11 at 134-137.) Thus, plaintiffs have produced the requisite
evidence showing the effect on Rajkovacz and Schaefer, and the Court accordingly
denies Supervalus motion as to declaratory judgment on plaintiffs actual coercion
2. Injunctive Relief
Plaintiffs also seek to enjoin Supervalu from future violations under 49 U.S.C.
14704(a)(1), which provides for injunctive relief to a private plaintiff for violations of
14103. Supervalu argues that because it voluntarily eliminated the higher insurance
coverage requirement in December 2005, there is no longer a need for injunctive relief.
The Court, however, has already found this argument unpersuasive at summary
judgment. Supervalu, 2007 WL 1576120, at *4. Supervalu further claims that it has
represented to the Court that Supervalu will not revert to its August 2005 [insurance
coverage] policy unless the Court declares that Supervalus August 2005 policy does not
violate 49 U.S.C. 14103. (Id. at 21.)
As the United States Supreme Court has explained,
[t]he purpose of an injunction is to prevent future violations, and, of course,
it can be utilized even without a showing of past wrongs. But the moving
party must satisfy the court that relief is needed. The necessary
determination is that there exists some cognizable danger of recurrent
violation, something more than the mere possibility which serves to keep
the case alive . . . .
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (emphasis added); see also
Supervalu, 2007 WL 1576120, at *4 (holding that the question in the instant case is
whether there is evidence of a cognizable danger of recurrent violation).
The passage of time without recurrent violations may strengthen Supervalus
argument but, [a] courts power to grant injunctive relief survives discontinuance of
illegal conduct. W.T. Grant, 345 U.S. at 633. Although the Court acknowledges
Supervalus representations that it will not revert to requiring higher insurance coverage,
such representations do not bind Supervalu in the future. Given Supervalus previous
actions and commitment to the permissibility of higher insurance coverage requirements,
there remains a cognizable danger, however slight, that Supervalu will re-implement the
requirement. Accordingly, the Court denies Supervalus motion as to the claims for
injunctive relief based on the insurance requirement.
B. Election to Receive Goods on Palletized Freight
Plaintiffs also contend that Supervalus election to receive goods on palletized
freight, without providing the necessary equipment to unload such freight, constituted
coercion or an attempt to coerce drivers to hire lumping services. This claim was not
certified as a class, and thus the Court only considers these claims with respect to
Rajkovacz and Schaefer. The individual plaintiffs, however, have failed to produce
evidence of such coercion of or attempts to coerce Rajkovacz and Schaefer by not
providing appropriate equipment for unloading, and there is no evidence or testimony
suggesting that Rajkovacz and Schaefer hired lumping services as a result. Accordingly,
the Court grants Supervalus motion as to claims for declaratory judgment and injunctive
relief based on Supervalus failure to provide adequate loading equipment.
A district court has a duty to assure that a class once certified continues to be
certifiable under Fed. R. Civ. P. 23(a). Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1145
(8th Cir. 1999). Supervalu now contends that at the close of discovery, it is clear that
class certification is no longer appropriate because the individual plaintiffs cannot meet
the typicality and numerosity requirements under Rule 23(a). Given the Courts
disposition on Supervalus motion for summary judgment, only two class-certified claims
remain: plaintiffs declaratory and injunctive relief claims arising under 14103(b) and
based on Supervalus attempt to coerce drivers to employ lumping services by
implementing an insurance coverage requirement higher than the statutory minimum.
The Court defined the class as All owners or operators of motor-vehicles used to
deliver carrier loads to Supervalus distribution centers between March 28 and
December 21, 2005, who a) at the time of delivery, did not meet Supervalus minimum
proof of insurance requirement then in effect; and b) paid for lumping services. As
discussed above, however, the representative parties claims are typical of the claims of
the class, and the evidence produced demonstrates a continuing dispute of fact about
whether Supervalu attempted to coerce the representative plaintiffs and the entire class to
employ lumpers. Further, the Court has previously found that the members of the class
are too numerous to be practicably joined, and there is no evidence to suggest that is no
longer true. Accordingly, Supervalus motion to decertify the class is denied.
This case will be placed on the Courts next available trial calendar
Based on the foregoing, all the files, records, and proceedings herein, IT IS
1. Defendant Supervalu, Inc.s Motion for Summary Judgment and for Class
Decertification [Docket No. 238] is GRANTED in part and DENIED in part as
a. The motion is GRANTED as to Count I of the Amended Complaint
regarding declaratory judgment and injunctive relief for violations of 49 U.S.C.
14103(a); and regarding declaratory judgment and injunctive relief for violations
of 49 U.S.C. 14103(b) to the extent that those claims relate to failure to provide
adequate equipment for unloading palletized freight.
b. The motion is DENIED in all other respects.
2. Defendant Supervalu, Inc.s Motion to Exclude Reports and Testimony of
Experts Sedo, Pakter, and Swan [Docket No. 230] is GRANTED in part and DENIED
in part as follows:
a. The motion is GRANTED as to the Sedo Report; and
b. The motion is DENIED without prejudice in all other respects.
DATED: March 24, 2009 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.