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DaSilva v. Border Transfer of MA, Inc.

United States District Court for the District of Massachusetts

November 9, 2017, Decided; November 9, 2017, Filed

Civil Action No. 16-11205



Saris, C.J.


Plaintiffs DaSilva and Ferreira used to work as delivery drivers for Defendant Border Transfer. They claim that Border Transfer improperly treated them as independent contractors when they were, in fact, employees, and that, as a result, Border Transfer unlawfully deducted certain business expenses from their pay under the Massachusetts Wage Act. Plaintiffs now [**2]  seek certification of a class of similarly situated current and former drivers under Fed. R. Civ. P. 23. For the reasons discussed below, Plaintiffs have met the Rule 23 requirements. Thus, after hearing, the Court ALLOWS the motion for class certification (Docket No. 73).


I. Factual Allegations

Border Transfer is a broker registered with the Federal Motor Carrier Safety Administration ("FMCSA"). Docket No. 9-2 at 1 ; see also 49 U.S.C. § 13102(2). As a broker, Border Transfer arranges home delivery services for large retail stores such as Sears.

Border Transfer itself does not deliver goods. Instead, Border Transfer contracts with FMCSA-authorized motor carriers to perform the home deliveries. Border Transfer's contracts with each motor carrier, which Border Transfer calls Contract Carrier Agreements ("CCAs"), are all substantially the same. Docket No. 74-3 at 11 ("Matos Dep." at 33:17-18). Each of the CCAs states that the motor carrier is considered to be an independent contractor of Border Transfer. E.g., Docket No. 74-4 at 5 ("DaSilva CCA" ¶ 8).

 [*395]  Border Transfer only enters into CCAs with business entities. Docket Nos. 74-7 at 7, 74-8 at 2 (Border Transfer's "Carrier File Requirements," which require motor carriers signing [**3]  CCAs to provide Border Transfer with a "copy of LLC or incorporation"). Drivers who wish to deliver for Border Transfer but who do not already have a corporate entity must create one; in at least one instance, Border Transfer helped a driver form a corporate entity and complete the steps to comply with federal regulations covering motor carriers. Docket No. 74-9 at 7-8.

In some cases, Border Transfer contracts with motor carrier companies that consist solely of a single driver who personally performs the delivery services. That was the case with named plaintiff Marcos DaSilva, who entered into a CCA with Border Transfer through Alpha Logistics Trucking, LLC ("Alpha Logistics"). Docket No. 74-4 at 9. DaSilva applied for a job as a delivery driver with Border Transfer. Docket No. 74-11 ¶ 4. A Border Transfer manager told him that he needed to form a company to sign a contract with Border Transfer, and the manager helped him fill out the necessary forms to create Alpha Logistics. Docket No. 74-11 ¶ 4. Alpha Logistics only ever operated one truck, and DaSilva was the sole driver for that truck. Docket No. 74-9 at 18.

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296 F. Supp. 3d 389 *; 2017 U.S. Dist. LEXIS 186012 **; 99 Fed. R. Serv. 3d (Callaghan) 135; 2017 WL 5196382

MARCOS DaSILVA and MATTEUS FERREIRA, on behalf of themselves and all others similarly situated, Plaintiffs, v. BORDER TRANSFER OF MA, INC., and PATRICK McCLUSKEY, Defendants.

Prior History: DaSilva v. Border Transfer of MA, Inc., 227 F. Supp. 3d 154, 2017 U.S. Dist. LEXIS 1523 (D. Mass., Jan. 5, 2017)


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