UNITED STATES DISTRICT COURT

M IDDLE DISTRICT OF ALABA M A

OFFICE OF THE CLERK

POST OFFICE BOX 711

MONTGOMERY, ALABAMA 36101-0711

DEBRA P. HACKETT, CLERK

TELEPHONE (334) 954-3600

October 19, 2006

NOTICE OF CORRECTION

From: Clerk’s Office

Case Style: Kuczmaski et al v. US FoodService

Case Number: 2:06cv00731-MHT

This Notice of Correction was filed in the referenced case this date to correct the PDF

document previously attached to include the Certificate of Service. 

The correct PDF document is attached to this notice for your review. Reference is made to

document # 20 filed on October 19, 2006.

Case 2:06-cv-00731-MHT-SRW Document 22 Filed 10/19/2006 Page 1 of 1
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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES KUCZMASKI, ADAM PIKE, )

RYAN PHILLIPS, JOSH STONE, )

SUHANE LOWERY, KEVIN BELL, and )

HAMP CRUM, III, individually and on )

behalf of all other persons similarly situated, )

)

Plaintiffs, ) CIVIL ACTION NUMBER:

) 2:06-cv-731-MHT-SRW

vs.

) JURY DEMAND

)

US FOODSERVICE, )

)

Defendant. )

)

THIRD AMENDED COLLECTIVE ACTION COMPLAINT

Plaintiffsfile this Third Amended CollectiveAction Complaint to add plaintiff,Hamp Crum,

III.

Plaintiffs, James Kuczmaski, Adam Pike, Ryan Phillips, Josh Stone, Suhane Lowery and

Kevin Bell, by and through their undersigned counsel, file t his lawsuit against Defendant, US

FoodService (hereinafter “US Foods” or “Defendant”), on behalf of themselves and all others

similarly situated, pursuant to §216(b) of the Fair Labor Standards Act of 1938 (hereinafter

“FLSA”), and in support thereof would further state as follows:

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 1 of 12
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I. INTRODUCTION

1. The instant action arises from US Foods’ violations of Plaintiffs’ rights under the

Fair Labor Standards Act, 29 U.S.C. §§201, et seq., and specifically the collective

action provision of the Act found at §216(b), to remedy violations of the wage

provisions of the FLSA by US Foods, which have deprived the named Plaintiffs, as

well as others similarly situated to the named Plaintiffs, of their lawful wages.

2. Other current and former hourly employees of US Foods are also entitled to receive

unpaid minimum wage and/or overtime compensation for the reasons alleged in this

Complaint. The above-named Plaintiffs are permitted to maintain this action “for

and on behalf of themselves and other employ ees similarly situated.” 29 U.S.C.

§216(b). Any similarly situated hourly employeewishingto becomeaparty plaintiff

to this action must provide “his/her consent in writingto become such a party,” and

such consent must be filed with this Court. 29 U.S.C. § 216(b).

3. This action is brought to recover unpaid compensation owed to the Plaintiffs and all

current and former hourly employees of US Foods who are similarly situated to the

Plaintiffs, pursuant to the FLSA. The Plaintiffs and the collective group similarly

situated are or have been employed within the local operation of one or more US

Foods locations, including hourly employees such as order selectors.

4. For at least three years prior to the filingof this complaint, US Foods has committed

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 2 of 12
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widespread violations of the FLSA by engaging in the following practices and

schemes:

(A) Requiring hourly employees classified as Order Selectors routinely to work

“off the clock” by requiring said employees to attend a meeting at the

beginning of their shift without pay; and

(B) Requiring hourly employees classified as Order Selectors routinely to work

“off the clock without pay.

5. Plaintiffs and allsimilarly situated hourly employees who elect to participate in this

action seek unpaid compensation for work performed, an equal amount of liquidated

damages, attorneys’ fees, and costs pursuant to 29 U.S.C. §216(b).

II. JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§331 (federal question jurisdiction); and 29 U.S.C. §216(b) (FLSA).

7. Venue is proper in the Middle District of Alabama under 28 U.S.C. §391(b)-(c).

III. PARTIES

A. PLAINTIFFS

8. Plaintiff James Kuczmaksi resides in Deatsville, Alabama, and is a citizen of the

United States. Kuczmaksi was employed by USFoods at the 2850 SelmaHighway

80 West location in Montgomery, Alabama. Kuczmaksi was employed with US

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 3 of 12
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Foods from February 24, 2003 until January 18, 2006 as an Order Selector.

9. Plaintiff Adam Pike resides in Prattville, Alabama, and is a citizen of the United

States. Pike was employed by US Foods at the 2850 Selma Highway 80 West

location in Montgomery, Alabama. Pike was emp loy ed with US Foods from

November, 1999 until November, 2001 and again from September, 2003 unt il

September, 2005 as an Order Selector.

10. Plaintiff Ryan Phillips resides in Millbrook, Alabama, and is a citizen of theUnited

States. Phillips was employed by US Foods at the 2850 Selma Highway 80 West

location in Montgomery, Alabama. Phillips was employed with US Foods from

August 16, 2005 until January 25, 2006 as an Order Selector.

11. PlaintiffJosh Stone resides in Montgomery, Alabama, and is a citizen of theUnited

States. Stone was employed by US Foods at the 2850 Selma Highway 80 West

location in Montgomery, Alabama fromApril 12, 2004 untilOctober 2, 2005. Stone

was employed with US Foods as an Order Selector.

12. Plaintiff SulaneLowery Stone resides in Castleberry, Alabama, and is a citizen of the

United States. Lowery is employed by US Foods at the 2850 Selma Highway 80

West location in Montgomery, Alabama. Lowery has been employedforsevenyears

and works as an Order Selector.

13. Plaintiff Kevin Bell resides in Montgomery, Alabama, and is a citizen of the United

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 4 of 12
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States. Bell is employed by USFoods at the 2850 SelmaHighway 80 West location

in Montgomery, Alabama. At all times relevant to this lawsuit, Bell was employed

with the defendant has an Order Selector.

14. Plaintiff Hamp Crum, III resides in Montgomery, Alabama, and is a citizen of the

United States. Crumis employed by USFoods at the 2850 SelmaHighway 80 West

location in Montgomery, Alabama. At all times relevant to this lawsuit, Crumwas

employed with the defendant has an Order Selector.

15. At all times material to this action, the named Plaintiffs and all members of the

Plaintiff collective action were all “employees”of USFoods as defined by §203(e)(1)

of the FLSA, and worked for Defendant within the territory of the United States

within ten years preceding the filing of this lawsuit. These same individuals are

further covered by §206 and §207 of the FLSA for the period in which they were

employed by Defendant US Foods.

B. DEFENDANT

16. Defendant US Foods is a corporation conducting business in the State of Alabama.

Defendant is one of the leading broad line foodservice distribut ors in the United

States, with yearly revenues exceeding $18 billion. The defendant has over 100

distribution centers nationwide andhas locations in approximately thirty nine states.

Defendant is an enterprise engaged in commerce as defined by the FLSA.

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 5 of 12
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17. US Foods maintains either actual or constructive control, oversight, and direction

over the operation of its individual distribution centers, including their employment

practices.

18. US Foods is a publicly traded company.

19. US Foods is subject to personal jurisdiction in the State of Alabama for purposes of

this lawsuit.

20. At all times material to this action, USFoods was an enterprise engaged in commerce

or in the production of goods for commerce as defined by §203(s)(1) of the FLSA,

and had an annual gross volume of sales which exceeded $500,000.00.

21. At all times material to this action, US Foods was an “employ er” of the named

Plaintiffs, as defined by §203(d) of the FLSA.

22. Theminimumwage and overtime provisionsset forth in §206 and §207, respectively,

of the FLSA apply to US Foods.

IV. VIOLATIONS OF THE FLSA

A. HOURLY EMPLOYEES ROUTINELY PERFORM JOB DUTIES “OFF THE

CLOCK” WITHOUT PROPER COMPENSATION

23. At all times material to this action, US Foods employed Plaintiffs as hourly Order

Selector.

24. Defendant intentionally failed or refused to pay employees for all hours worked and

failed to pay employ ees minimum wages and overtime rates according to the

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 6 of 12
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provisions of the FLSA.

25. Plaintiffs’ duties as Order Selector employees included, but were not limited to,

pulling orders as they were given and to deliver them to a particular area wherein

another employee holdingthe position known as Loader would then load the orders

for delivery. The Order Selector’s rate of pay was determined by their production.

Prior to March 2005, all employees punched a time clock and was compensated for

all hours worked. However, in March 2005, employees quit punching a time clock

and began wearing headsets which the employee spoke into to signal when they

began pulling orders and when they stopped pulling orders and started cleaning up

the assigned aisle.

26. When the employee reported to work, therewas a 15-minutemeetingthat sometimes

lasted longer. When the meeting was over, the employees would then begin pulling

orders. The production time did not start until 15 minutes after the emp loy ee

reported to work and, if the meeting lasted longer than 15 minutes, the employee’s

production numbers and therefore, the rate of pay could be affected. Once all the

orders were pulled, the employee was then allotted 25 minutes to clean up the aisle.

If it took the employee longer than 25 minutes, he was not compensated for this

time. It normally took anywhere from 1 to 3 hours to clean up the aisle depending

on which aisle the employee was assigned to work.

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 7 of 12
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V. SCOPE OF DEFENDANT’S LIABILITY

27. There are numerous similarly situated current and former employees of US Foods

who have been improperly compensated in violation of the FLSA and who would

benefit fromthe issuance of aCourt-supervised Notice of the present lawsuit and the

opportunity to join the present lawsuit. Those similarly situated employees are

known to Defendant and are readily identifiable and locatable through Defendant’s

records. Specifically, all current and former employees of US Foods should be

notified who, at any time during the three y ears preceding the filing date of this

Complaint, up through and including the date of this Court’s issuance of a Courtsupervised Notice, have been considered (i) employees who have been required to

perform duties “off the clock” without receiving due compensation, including any

overtime pay.

VI. COUNT ONE

28. The Plaintiffs repeat and incorporate by reference paragraphs 1-25 herein. By its

actions alleged herein, US Foods willfully, knowingly, and/or recklessly violated the

FLSA provisions and corresponding federal regulations.

29. US Foods has willfully and intentionally engaged in a widespread pattern and

practice of violating the provisions of the FLSA, as detailed herein, by endeavoring

to prevent the proper compensation of current and former employees, including the

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 8 of 12
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named plaintiffs in accordance with §206 and §207 of the FLSA.

30. As a result of Defendant’s violations of the FLSA, named plaintiffs, as well as all

other similarly situated employees, have suffered damages by failing to receive

minimum and/or overtime wages in accordance with §206 and §207 of the FLSA.

31. Defendant has not made a good faith effort to comply with the FLSA with respect

to its compensation of the named plaintiffs and othersimilarly situated present and

former employees.

32. As a result of the unlawful acts of Defendant, plaintiffs and all current and former

employees similarly situated,havebeen deprived of minimumwages and/or overtime

compensation in an amount to be determined at trial, and are entitled to recovery of

such amounts, liquidated damages, prejudgment interest, attorneys’ fees, costs, and

other compensation.

IX. PRAYER FOR RELIEF

WHEREFORE, the named Plaintiffs, individually and on behalf of allothersimilarly situated

persons, pursuant to §216(b) of the FLSA, pray for the following relief:

A. That, at the earliest possible time, they be allowed to give notice of this action, or

that the Court issue such Notice, to all persons who are presently, or have at any

time during the three years immediately precedingthe filing of this suit, up through

and including the date of this Court’s issuance of Court-supervised Notice, been

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 9 of 12
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employed by theDefendant as an hourly employee in any USFoods location within

the United States. Such notice shall informthemthat this civil action has been filed

and of the nature of the action, and of their right to opt into this lawsuit: (i) if they

worked as an hourly employees duringthe liability period and performed duties “off

the clock,” but were not entirely compensated for all work performed;

B. That all Plaintiffs be awarded damages in the amount of their respective unpaid

compensation, plus an equal amount of liquidated damages and/or prejudgment

interest;

C. Reasonable attorneys’ fees;

D. The costs and expenses of this action; and

E. Such other, further legal and equitable relief, including, but not limited to, any

injunctive and/or declaratory relief, to which they may be entitled.

THE PLAINTIFFS DEMAND A TRIAL BY JURY ON ALL TRIABLE CLAIMS.

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 10 of 12
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Respectfully submitted

/s/Gregory O. Wiggins

Gregory O. Wiggins

Kevin W. Jent

Counsel for the Plaintiffs

OF COUNSEL:

WIGGINS, CHILDS, QUINN & PANTAZIS, LLC

The Kress Building

301 19

th Street North

Birmingham, Alabama 35203

205/314-0543

Tucker F. Burge

BURGE & BURGE

850 Park Place Tower

2001 Park Place North

Birmingham, Alabama 35203

DEFENDANT’S ADDRESS:

US FoodService

2850 Selma Highway 80 West

Montgomery, Alabama 36108-5608

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 11 of 12
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CERTIFICATE OF SERVICE

I do hereby certify that I have filed the above and foregoing by CM/ECF today, October 19,

2006, with copies being served on:

Tammy L. Baker

Tamula R. Yelling

Constangy, Brooks & Smith, LLC

One Federal Place, Suite 900

1819 Fifth Avenue North

Birmingham, Alabama 35203

/s/Gregory O. Wiggins

Case 2:06-cv-00731-MHT-SRW Document 22-2 Filed 10/19/2006 Page 12 of 12