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Likes v. DHL Express

United States District Court, N.D. Alabama, Southern Division

June 10, 2014

DHL EXPRESS, Defendant

For Darrius Likes, and all other similarly situated persons, Plaintiff: Courtney L Calhoun, Lee David Winston, Roderick T Cooks, WINSTON COOKS LLC, Birmingham, AL.

For Dhl Express, Defendant: Shannon L Miller, LEAD ATTORNEY, JACKSON LEWIS P.C., Birmingham, AL; Devand A. Sukhdeo, JACKSON LEWIS P.C., Miami, FL.

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VIRGINIA EMERSON HOPKINS, United States District Judge.


Plaintiff Darrius Likes (" Mr. Likes" ) initiated this employment dispute arising under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § § 2101-2109 (" WARN" ) against Defendant DHL Express (" DHL" ) on November 5, 2010. (Doc. 1). On December 21, 2012, the court denied Mr. Likes's request to have his lawsuit certified as a class action with him serving as the class representative under Rule 23(b)(2) or (3) (Doc. 44) and, since then, the case has proceeded as an individual liability one only.[1]

Mr. Likes's complaint contains only one count. (Doc. 1 at 11-12 ¶ ¶ 50-59). More specifically, Mr. Likes contends that " DHL Express violated the WARN Act with respect to the plaintiff . . . by failing to give 60 days advance notice as required prior to a mass lay-off or plant closing." (Doc. 1 at 11 ¶ 51).

Pending before the court is DHL's Motion for Summary Judgment (Doc. 56) (the " Motion" ) filed on January 6, 2014. On January 6, 2014, DHL also filed several evidentiary materials in support of its Motion. (Docs. 57-61).

After obtaining multiple extensions of time, Mr. Likes filed his opposition (Docs. 66-68) to the Motion on March 11, 2014. On April 25, 2014 (and also after securing an extension), DHL followed with its reply. (Doc. 71). Finally, on April 25, 2014, Mr. Likes filed a corrected version of his opposition brief. (Doc. 72). Accordingly, the Motion is now under submission, and, for the reasons explained below, is due to be granted in part and otherwise termed as moot.


DHL's Business Model And Operations

DHL provides shipping services through a global network of gateways, hubs, warehouses, and terminals to administer customer needs. AF No. 1.1 [3] Express delivery

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is one of DHL's many business lines. AF No. 1.2. Based on the demands within its express delivery business, DHL engages independent contractors to facilitate parcel pick-up and delivery in specifically defined geographic territories. Id. Those companies with whom DHL contracts have no corporate affiliation, no common owners, no common officers or directors, and no common decision-makers with DHL. AF No. 4.

Up until roughly the first part of 2009, DHL offered express delivery services within the United States. As a result of economic losses totaling an estimated eleven billion dollars experienced over an approximate five-year span from 2003 to 2008 (Doc. 66-2 at 47 at 185),[4] DHL decided to cease its domestic express delivery services, which winding down process played out over the course of a number of months. AF No. 23. When domestic delivery was still a component of its express delivery business, DHL utilized independent contractors in over 86% of its delivery areas within the United States. AF No. 1.2; ( see also Doc. 67-3 at 3 (DHL's substantive response to interrogatory No. 3)).[5]

Separate but, for the most part, uniformly worded, cartage agreements (" CAs" ) govern the commercial relationship between DHL and its contractors. Such contracts require that all contractors: (i) wear DHL branded clothing consistent with DHL's trademark guidelines; (ii) drive vehicles with DHL branded logos when delivering DHL packages; and (iii) refrain from making any non-DHL deliveries when wearing DHL branded clothing or driving DHL branded trucks. (Doc. 59-1 at 5 § 3.5.3; id. at 6 § 3.14).[6] Bill Talon (" Mr. Talon" ), DHL's current head of Ground Operations for the Americas Division, recalled that, prior to ceasing its domestic express delivery operations, DHL only permitted two out of its three hundred contractors to make non-DHL deliveries. (Doc. 66-3 at 12 at 43-44).[7]

In addition to the CAs, domestic contractors were asked to execute termination and transition agreements (" TTAs" ) when DHL was winding down its express delivery services within the United States. (Doc. 57-1 at 2-8).[8] These TTAs subsumed the CAs as the governing document between DHL and its domestic contractors and included provisions for funding to the contractors

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for courier wages, returning DHL branded products, covering insurance payments, and protecting DHL's brand. Id.

DHL's Birmingham Contractors and Mr. Likes's Employment

Mr. Likes was employed as a delivery courier by Wood Air Freight, Inc. (" WAF" ), one of DHL's domestic contractors that operated out of a facility located in Birmingham. AF No. 5. DHL contracted with two other independent companies--Sky Land Express, Inc. (" Sky Land" ) and Territory Reps, Inc. (" Territory Reps" )--who operated out of the same Birmingham facility as WAF. AF No. 8.1.

WAF began operations in 1981 and had its own set of employee policies and procedures in place for much of that time. AF No. 7.2. WAF's owner and president was Thomas Wood (" Mr. Wood" ) who, in addition to overseeing the company's day-to-day operations, was the person solely responsible for negotiating the terms of all contracts between WAF and DHL. AF No. 7.1. WAF first contracted to provide pick-up and delivery services for DHL in 2005, and their contractual relationship lasted until early 2009. AF ...

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