In the United States District Court

for the Southern District of Ohio

Eastern Division 

James Call, 

On behalf of himself and those 

similarly situated,

Case No. 2:18-cv-696

Plaintiff, Judge 

v. Magistrate Judge 

CTA Pizza, Inc., Donald L. Smith, Jr., Paula J. 

Smith,

Jury Demand Endorsed Hereon

Defendants.

Class and Collective Action Complaint

1. James Call, on behalf of himself and all similarly-situated individuals, brings this

action against Defendants CTA Pizza, Inc., Donald L. Smith, Jr., Paula J. Smith. Plaintiff seeks 

appropriate monetary, declaratory, and equitable relief based on Defendants’ willful failure to 

compensate Plaintiff and similarly-situated individuals with minimum wages as required by the 

Fair Labor Standards Act (“FLSA”), the Ohio Constitution, Article II, Section 34a (“Section 

34a”), the Ohio Minimum Fair Wage Standards Act, O.R.C. § 4111.01, et seq. (“OMFWSA”), 

O.R.C. § 4113.15 (Ohio’s “Prompt Pay Act”), and O.R.C. § 2307.60.

2. Defendants operate Domino’s Pizza franchises in Ohio and West Virginia (the 

“CTA Pizza” stores).

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 1 of 26 PAGEID #: 1
2

3. Plaintiff works for Defendants as a pizza delivery driver at their Gallipolis, Ohio 

location.

4. Defendantsrepeatedly and willfully violated the Fair Labor Standards Act the Ohio

Constitution, and the Ohio Minimum Fair Wage Standards Act by failing to adequately reimburse 

delivery drivers for their delivery-related expenses, thereby failing to pay delivery drivers the 

legally mandated minimum wage wages for all hours worked.

5. Defendants maintain a policy and practice of underpaying their delivery drivers in 

violation of the FLSA, Section 34a, and the OMFWSA.

6. All delivery drivers at the CTA Pizza stores, including Plaintiff, have been subject 

to the same employment policies and practices, including policies and practices with respect to 

wages and reimbursement for out-of-pocket expenses.

7. Plaintiff brings this action on behalf of himself and similarly situated current and 

former delivery drivers who elect to opt in pursuant to FLSA, 29 U.S.C. § 216(b) to remedy 

violations of the FLSA wage and hour provisions by Defendants. 

8. Plaintiff also brings this action on behalf of himself and similarly situated current 

and former delivery drivers in Ohio, pursuant to Federal Rule of Civil Procedure 23, to remedy 

violations of Section 34a, the Prompt Pay Act, and O.R.C. § 2307.60.

Jurisdiction and Venue

9. Under 28 U.S.C. § 1331 and 29 U.S.C. § 216(b), this Court has jurisdiction over 

Plaintiff’s FLSA claims. 

10. Under 28 U.S.C. § 1367, this Court has supplemental jurisdiction over Plaintiff’s 

Ohio law claims. 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 2 of 26 PAGEID #: 2
3

11. Venue in this Court is proper under 28 U.S.C. § 1391(b) because the parties reside 

in this district, and a substantial part of the events giving rise to the claim herein occurred in this 

district.

Parties

Plaintiff

James Call

12. Plaintiff James Call is a resident of Ohio and, at all times material herein, Plaintiff 

worked within the boundaries of Southern District of Ohio.

13. Plaintiff is an “employee” of all of the Defendant as defined in the FLSA, Section 

34a, and the OMFWSA.

14. Plaintiff has given written consent to join this action.

Defendants

15. Defendants’ CTA Pizza stores are part of a single integrated enterprise.

16. CTA Pizza is a family owned and operated business.

17. CTA Pizza is owned and operated by Donald and Paula Smith.

18. Each of the Defendants had substantial control over Plaintiff and similarly situated 

delivery drivers’ working conditions, and over the unlawful policies and practices alleged herein.

19. At all relevant times, the CTA Pizza restaurants shared common management and 

were centrally controlled and/or owned by Defendants.

20. At all relevant times, all Defendants maintained control over labor relations at the 

CTA Pizza restaurants.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 3 of 26 PAGEID #: 3
4

21. During all relevant times, Defendants permitted employees to transfer or be shared 

by and between the CTA Pizza restaurants without retraining.

22. Defendants share or co-determine those matters governing the essential terms and 

conditions of employment for Plaintiff and similarly situated delivery drivers at CTA Pizza. 

23. Defendants suffer or permit Plaintiff and other delivery drivers to work.

24. Defendants have direct or indirect control of the terms and conditions of Plaintiff’s 

work and the work of similarly situated delivery drivers, and also exercise that authority.

25. During all relevant times, Defendants also exercised operational control over the 

delivery drivers at the CTA Pizza restaurants, including, but not limited to, control over recruiting 

and training of delivery drivers, compensation of delivery drivers, job duties of delivery drivers, 

reimbursements to delivery drivers, recruiting and training managers, design and layout of the 

restaurants, sales and marketing programs, public relations programs, promotional services, 

appearance and conduct standards, inventory, and inventory controls.

26. Together, the Defendant entities have earned more than $500,000 in gross sales 

throughout the relevant time period as defined by the Fair Labor Standards Act.

CTA Pizza, Inc.

27. Defendant CTA Pizza, Inc. is a foreign corporation organized and existing under 

the laws of West Virginia.

28. CTA Pizza, Inc. is the corporate entity that appears on Plaintiff’s paystubs for the 

work he completes for Defendants.

29. CTA Pizza, Inc. has substantial control over Plaintiff and similarly situated 

employees’ working conditions, and over the unlawful policies and practices alleged herein.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 4 of 26 PAGEID #: 4
5

30. CTA Pizza, Inc. has direct or indirect control of the terms and conditions of 

Plaintiff’s work and the work of similarly situated employees.

31. At all relevant times, CTA Pizza, Inc. maintained control, oversight, and direction 

over Plaintiff and similarly situated employees, including, but not limited to, hiring, firing, 

disciplining, timekeeping, payroll, reimbursements, pay rates, deductions, and other practices.

32. CTA Pizza, Inc. is an “employer” of Plaintiff and similarly situated employees as 

that term is defined by the FLSA and Section 34a. 

33. At all relevant times, CTA Pizza, Inc. has been and continues to be an enterprise 

engaged in “the production of goods for commerce” within the meaning of the phrase as used in 

the FLSA.

34. CTA Pizza, Inc.’s gross revenue exceeds $500,000 per year.

Donald L. Smith, Jr.

35. Defendant Donald L. Smith, Jr. is an owner and operator of the CTA Pizza 

restaurants.

36. According to the West Virginia Secretary of State website, Donald L. Smith, Jr. is 

the President of CTA Pizza, Inc.

37. According to the West Virginia Secretary of State website, Donald L. Smith, Jr. is 

the secretary of CTA Pizza, Inc.

38. Donald L. Smith, Jr. is individually liable to CTA Pizza’s delivery drivers under the 

definitions of “employer” set forth in the FLSA and Section 34a because he owns and operates 

the CTA Pizza stores, serves as a manager and/or member of CTA Pizza, Inc., ultimately controls 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 5 of 26 PAGEID #: 5
6

significant aspects of CTA Pizza’s day-to-day functions, and ultimately controls compensation and 

reimbursement of employees. 29 U.S.C. § 203(d). 

39. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had financial control over the operations at each of the CTA Pizza stores. 

40. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has a role in significant aspects of the CTA Pizza stores’ day to day operations.

41. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had control over the CTA Pizza stores’ pay policies.

42. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had power over personnel and payroll decisions at the CTA Pizza stores, 

including but not limited to influence of delivery driver pay.

43. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had the power to hire, fire and discipline employees, including delivery 

drivers at the CTA Pizza stores. 

44. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had the power to stop any illegal pay practices that harmed delivery drivers 

at the CTA Pizza stores.

45. At all relevant times, by virtue of his role as owner and president of CTA Pizza,

Donald L. Smith, Jr. has had the power to transfer the assets and liabilities of CTA Pizza, Inc.

46. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had the power to declare bankruptcy on behalf of CTA Pizza, Inc.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 6 of 26 PAGEID #: 6
7

47. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had the power to enter into contracts on behalf of each of the CTA Pizza 

stores. 

48. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. has had the power to close, shut down, and/or sell each of the CTA Pizza

stores.

49. At all relevant times, by virtue of his role as owner and president of CTA Pizza, 

Donald L. Smith, Jr. had authority over the overall direction of each of CTA Pizza stores and was 

ultimately responsible for their operations.

50. The CTA Pizza stores function for Donald L. Smith, Jr.’s profit.

51. Donald L. Smith, Jr. has influence over how the CTA Pizza stores can run more 

profitably and efficiently.

Paula J. Smith

52. Defendant Paula J. Smith is an owner and operator of the CTA Pizza restaurants.

53. According to the West Virginia Secretary of State website, Paula J. Smith is the Vice 

President of CTA Pizza, Inc.

54. According to the West Virginia Secretary of State website, Paula J. Smith is the 

treasurer of CTA Pizza, Inc.

55. Paula J. Smith is individually liable to CTA Pizza’s delivery drivers under the 

definitions of “employer” set forth in the FLSA and Section 34a because she owns and operates 

the CTA Pizza stores, serves as a manager and/or member of CTA Pizza, Inc., ultimately controls 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 7 of 26 PAGEID #: 7
8

significant aspects of CTA Pizza’s day-to-day functions, and ultimately controls compensation and 

reimbursement of employees. 29 U.S.C. § 203(d). 

56. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had financial control over the operations at each of the CTA Pizza 

stores. 

57. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has a role in significant aspects of the CTA Pizza stores’ day to day 

operations.

58. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had control over the CTA Pizza stores’ pay policies.

59. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had power over personnel and payroll decisions at the CTA Pizza 

stores, including but not limited to influence of delivery driver pay.

60. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to hire, fire and discipline employees, including 

delivery drivers at the CTA Pizza stores. 

61. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to stop any illegal pay practices that harmed delivery 

drivers at the CTA Pizza stores.

62. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to transfer the assets and liabilities of CTA Pizza, 

Inc.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 8 of 26 PAGEID #: 8
9

63. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to declare bankruptcy on behalf of CTA Pizza, Inc.

64. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to enter into contracts on behalf of each of the CTA 

Pizza stores. 

65. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith has had the power to close, shut down, and/or sell each of the CTA 

Pizza stores.

66. At all relevant times, by virtue of her role as owner, vice president, and treasurer of 

CTA Pizza, Paula J. Smith had authority over the overall direction of each of CTA Pizza stores and 

was ultimately responsible for their operations.

67. The CTA Pizza stores function for Paula J. Smith’s profit.

68. Paula J. Smith has influence over how the CTA Pizza stores can run more profitably 

and efficiently.

Facts

Class-wide Factual Allegations

69. During all relevant times, Defendants have operated the CTA Pizza stores. 

70. The primary function of the CTA Pizza stores is to sell pizza and other food items 

to customers, whether they dine in, carry out, or have their food delivered.

71. Some or all of the CTA Pizza stores employs delivery drivers. 

72. Plaintiff and the similarly situated persons Plaintiff seeks to represent are current 

and former delivery drivers employed by Defendants at the CTA Pizza stores.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 9 of 26 PAGEID #: 9
10

73. All delivery drivers employed at the CTA Pizza stores over the last three years have 

had essentially the same job duties—deliver pizza and other food items to customers. 

74. When there are no deliveries to make, Defendants’ delivery drivers are required to 

work inside the CTA Pizza stores building pizza boxes, cleaning, preparing pizza and other food 

items, and completing other duties inside the restaurant as necessary.

75. Plaintiff and similarly situated delivery drivers are required to complete non-tipped 

tasks such as taking orders, preparing vegetables, grating cheese, sweeping, mopping, and/or doing 

other tasks necessary for the operation of the restaurant when they were not completing deliveries.

76. At all relevant times, Plaintiff and similarly situated delivery drivers have been paid 

minimum wage minus a tip credit for the hours they worked while completing deliveries.

77. At all relevant times, Plaintiff and similarly situated delivery drivers have been paid 

minimum wage or slightly above minimum wage for the hours they worked inside the restaurant.

78. Defendants require delivery drivers to maintain and pay for operable, safe, and 

legally compliant automobiles to use in delivering Defendants’ pizza and other food items. 

79. Defendants require delivery drivers to incur and/or pay job-related expenses, 

including but not limited to automobile costs and depreciation, gasoline expenses, automobile 

maintenance and parts, insurance, financing charges, cell phone costs, GPS charges, and other 

equipment necessary for delivery drivers to complete their job duties.

80. Pursuant to such requirements, Plaintiff and other similarly situated employees 

purchase gasoline, vehicle parts and fluids, automobile repair and maintenance services, 

automobile insurance, suffered automobile depreciation, financing charges, and incur cell phone 

and data charges all for the primary benefit of Defendants.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 10 of 26 PAGEID #: 10
11

81. The CTA Pizza stores do not track or record their delivery drivers actual expenses. 

82. The CTA Pizza stores do not reimburse delivery drivers for their actual expenses. 

83. The CTA Pizza stores do not reimburse delivery drivers at the IRS standard 

business mileage rate.

84. The CTA Pizza stores do not reimburse delivery drivers at a reasonable 

approximation of the delivery drivers’ expenses. 

85. Until 2016, Plaintiff and other similarly situated delivery drivers at the CTA Pizza

stores were reimbursed a flat per delivery amount for the expenses they incurred. Plaintiff received 

$1.25 per delivery.

86. Since 2016, Plaintiff and other similarly situated delivery drivers have been 

reimbursed for their delivery-related expenses on a per-mile basis. The amount of reimbursement 

has not been adequate to cover the delivery drivers’ expenses. Since 2016, Plaintiff has received 

between $.15 and $.24 per mile as reimbursement.

87. Plaintiff and similarly situated delivery drivers typically average 7 to 10 miles per 

round-trip delivery. 

88. Plaintiff and similarly situated delivery drivers typically make approximately 2-3

deliveries per hour. 

89. According to the Internal Revenue Service, the standard mileage rate for the use of 

a car during the relevant time periods have been:

a. 2015: 57.5 cents/mile

b. 2016: 54 cents/mile

c. 2017: 53.5 cents/mile

d. 2018: 54.5 cents/mile

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 11 of 26 PAGEID #: 11
12

90. As a result of the automobile and other job-related expenses incurred by Plaintiff 

and other similarly situated delivery drivers, they were deprived of minimum wages guaranteed to 

them by the FLSA and Ohio law.

91. At all relevant times, Defendants have applied the same pay policies, practices, and 

procedures to all delivery drivers at the CTA Pizza stores.

92. All of Defendants’ delivery drivers had similar experiences to that of Plaintiff. They 

completed similar job duties, were subject to the same reimbursement policy; received similar 

reimbursements; incurred similar automobile expenses; completed deliveries of similar distances 

and at similar frequencies; and were paid at or near the applicable minimum wage rate or a tipped 

wage rate before deducting unreimbursed vehicle costs.

93. Regardless of the precise amount of the per-delivery reimbursement at any given 

point in time, Defendants’ reimbursement formula has resulted in an unreasonable 

underestimation of delivery drivers’ automobile expenses throughout the recovery period, causing 

systematic violations of the minimum wage laws.

94. Because Defendants paid their drivers a gross hourly wage at precisely, or at least 

very close to, the applicable minimum wage, and because the delivery drivers incurred 

unreimbursed automobile expenses, the delivery drivers “kicked back” to Defendants an amount 

sufficient to cause minimum wage violations. See 29 C.F.R. § 531.35.

95. Defendants are relying on the same flawed policy and methodology with respect to 

all delivery drivers at all of the CTA Pizza stores.

96. Plaintiff and similarly situated delivery drivers were also regularly clocked out onto 

their “delivery” pay rate prematurely, before an order was ready to go out for a delivery, because 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 12 of 26 PAGEID #: 12
13

the stores are graded based on how quickly they get pizzas out for delivery. As a result, Plaintiff 

and similarly situated delivery drivers spent some of their time at work paid a tipped wage but 

completing non-tipped job duties.

97. Defendants have willfully failed to pay federal and Ohio state minimum wage to 

Plaintiff and similarly situated delivery drivers at the CTA Pizza stores. 

Plaintiff’s Individual Factual Allegations

98. Plaintiff has worked at CTA Pizza from approximately 2009 until present at their 

Gallipolis, Ohio location.

99. Plaintiff is paid minimum wage minus a tip credit as an hourly rate for all hours 

worked while delivering food.

100. Specifically, Plaintiff earns $5.85 per hour while out on deliveries.

101. Plaintiff has delivered pizza and other food items to Defendants’ customers’ homes 

and businesses. 

102. When he is not making deliveries, Plaintiff works inside the restaurant, completing 

tasks such as taking orders, preparing vegetables, sweeping, mopping, and/or doing other tasks 

necessary for the operation of the restaurant. 

103. Until approximately 2016, Plaintiff received a flat per delivery reimbursement 

amount. 

104. Plaintiff was reimbursed $1.25 per delivery until 2016.

105. Since 2016, Plaintiff has been reimbursed on a per mile basis for each mile he drives 

while completing deliveries for Defendants. 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 13 of 26 PAGEID #: 13
14

106. Since 2016, Plaintiff has received between $.15 and $.24 per mile as reimbursement 

for delivery expenses from Defendants.

107. Plaintiff is required to maintain and pay for operable, safe, and legally compliant 

automobiles to use in delivering Defendants’ pizza and other food items. 

108. Plaintiff is required to incur and/or pay job-related expenses, including but not 

limited to automobile costs and depreciation, gasoline expenses, automobile maintenance and 

parts, insurance, cell phone service, GPS service, automobile financing, and other equipment 

necessary for delivery drivers to complete their job duties.

109. Plaintiff has purchased gasoline, vehicle parts and fluids, automobile repair and 

maintenance services, automobile insurance, suffered automobile depreciation, automobile 

financing, and incur cell phone and data charges all for the primary benefit of Defendants.

110. Defendants do not track the actual expenses incurred by Plaintiff.

111. Defendants do not reimburse Plaintiff based on his actual delivery-related expenses.

112. Plaintiff is not reimbursed at the IRS standard mileage rate for the miles he drives

while completing deliveries.

113. During Plaintiff’s employment with Defendants, Defendants failed to adequately 

reimburse Plaintiff for automobile and other job-related expenses.

114. Plaintiff regularly makes approximately two to three deliveries per hour during the 

hours he works as a delivery driver.

115. Plaintiff regularly drove between 7-10 miles round trip per delivery.

116. Thus, Defendants’ average effective reimbursement rate for Plaintiff until 2016 

was approximately $.15 per mile ($1.25 per delivery / 8.5 average miles per delivery).

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 14 of 26 PAGEID #: 14
15

117. In 2018, for example, the IRS business mileage reimbursement has been $.545 per 

mile, which reasonably approximated the automobile expenses incurred delivering 

pizzas. http://www.irs.gov/Tax-Professionals/Standard-Mileage-Rates. Using that IRS rate as a 

reasonable approximation of Plaintiff’s automobile expenses, every mile driven on the job 

decreased her net wages by approximately $.39 ($.54 - $.15) per mile. Considering Plaintiff’s 

estimate of about 8.5 average miles per delivery, Defendants under-reimbursed her about $3.32

per delivery ($.39 x 8.5 average miles).

118. Thus, while making deliveries, Plaintiff consistently “kicked back” to Defendants

approximately $8.29 per hour ($3.32 per delivery x 2.5 deliveries per hour).

119. As a result of unreimbursed automobile expenses and other job-related expenses, 

Defendants have failed to pay Plaintiff minimum wage as required by law.

Collective Action Allegations

120. Plaintiff brings the First Count and Second Count on behalf of himself and all 

similarly situated current and former delivery drivers employed at the CTAPizza owned, operated, 

and controlled by Defendants nationwide, during the three years prior to the filing of this Class 

Action Complaint and the date of final judgment in this matter, who elect to opt-in to this action 

(the “FLSA Collective”). 

121. At all relevant times, Plaintiff and the FLSA Collective have been similarly situated, 

have had substantially similar job duties, requirements, and pay provisions, and have all been

subject to Defendants’ decision, policy, plan, practices, procedures, protocols, and rules of 

willfully refusing to pay Plaintiff and the FLSA Collective minimum wage for all hours worked and 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 15 of 26 PAGEID #: 15
16

failing to reimburse delivery drivers for automobile expenses and other job-related expenses. 

Plaintiff’s claims are essentially the same as those of the FLSA Collective. 

122. Defendants’ unlawful conduct is pursuant to a corporate policy or practice.

123. Defendants are aware or should have been aware that federal law required them to 

pay employees minimum wage for all hours worked, to pay overtime hours for all hours worked in 

excess of 40 per workweek, and to fully reimburse for “tools of the trade.”

124. Defendants’ unlawful conduct has been widespread, repeated, and consistent.

125. The First and Second Counts are properly brought under and maintained as an optin collective action under 29 U.S.C. § 216(b).

126. The FLSA Collective members are readily identifiable and ascertainable.

127. In recognition of the services Plaintiff has rendered and will continue to render to 

the FLSA Collective, Plaintiff will request payment of a service award upon resolution of this 

action.

Class Action Allegations

128. Plaintiff brings the Third, Fourth, Fifth, and Sixth Counts under Federal Rule of 

Civil Procedure 23, on behalf of herself and a class of persons consisting of:

All current and former delivery drivers employed by Defendant at CTAPizza stores 

in the State of Ohio between the date three years prior to the filing of the original 

complaint and the date of final judgment in this matter (“Rule 23 Class”).

129. Excluded from the Rule 23 Class are Defendants’ legal representatives, officers, 

directors, assigns, and successors, or any individual who has, or who at any time during the class 

period has had, a controlling interest in Defendants; the Judge(s) to whom this case is assigned and 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 16 of 26 PAGEID #: 16
17

any member of the Judges’ immediate family; and all persons who will submit timely and otherwise 

proper requests for exclusion from the Rule 23 Class. 

130. The number and identity of the Rule 23 Class members are ascertainable from 

Defendants’ records. 

131. The hours assigned and worked, the positions held, deliveries completed, and the 

rates of pay and reimbursements paid for each Rule 23 Class Member are determinable from 

Defendants’ records. 

132. For the purpose of notice and other purposes related to this action, their names and 

contact information are readily available from Defendants. 

133. Notice can be provided by means permissible under Federal Rule of Civil Procedure 

23. 

134. The Rule 23 Class member are so numerous that joinder of all members is 

impracticable, and the disposition of their claims as a class will benefit the parties and the Court.

135. There are more than 50 Rule 23 Class members.

136. Plaintiff’s claims are typical of those claims which could be alleged by any Rule 23 

Class member, and the relief sought is typical of the relief which would be sought by each Rule 23 

Class member in separate actions.

137. Plaintiff and the Rule 23 Class members have all sustained similar types of damages 

as a result of Defendants’ failure to comply with Section 34a and O.R.C. § 4113.15.

138. Plaintiff and the Rule 23 Class members sustained similar losses, injuries, and 

damages arising from the same unlawful practices, polices, and procedures.

139. By seeking to represent the interests of the Rule 23 Class members, Plaintiff is 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 17 of 26 PAGEID #: 17
18

exercising and intends to exercise her right to engage in concerted activity for the mutual aid or 

benefit of herself and her co-workers.

140. Plaintiff is able to fairly and adequately protect the interests of the Rule 23 Class 

and has no interests antagonistic to the Rule 23 Class.

141. Plaintiff is represented by attorneys who are experienced and competent in both 

class action litigation and employment litigation.

142. A class action is superior to other available methods for the fair and efficient 

adjudication of the controversy, particularly in the context of wage and hour litigation on behalf of 

minimum wage employees where individual class members lack the financial resources to 

vigorously prosecute a lawsuit against corporate defendants. Class action treatment will permit a 

large number of similarly situated persons to prosecute their common claims in a single forum 

simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that 

numerous individual actions engender. 

143. Upon information and belief, Defendants and other employers throughout the state 

violate Section 34a and O.R.C. § 4113.15. Current employees are often afraid to assert their rights 

out of fear of direct and indirect retaliation. Former employees are fearful of bringing claims 

because doing so can harm their employment, future employment, and future efforts to secure 

employment. Class actions provide class members who are not named in the complaint a degree 

of anonymity, which allows for the vindication of their rights while eliminating or reducing these 

risks. 

144. This action is properly maintainable as a class action under Federal Rule of Civil 

Procedure 23(b)(3).

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 18 of 26 PAGEID #: 18
19

145. Common questions of law and fact exist as to the Rule 23 Class that predominate 

over any questions only affecting Plaintiff and the Rule 23 Class members individually and include, 

but are not limited to:

a. Whether Plaintiff and the Rule 23 Class members were subject to a common 

expense reimbursement policy that resulted in wages to drop below legally 

allowable minimum wage and overtime;

b. Whether Plaintiff and the Rule 23 Class were subject to a policy that required them 

to maintain and pay for safe, operable, and legally compliant automobiles to use in 

completing deliveries;

c. Whether Plaintiff and the Rule 23 Class incurred expenses for the benefit of 

Defendants in the course of completing deliveries;

d. Whether Defendants reimbursed Plaintiff and the Rule 23 Class members for their 

actual expenses;

e. Whether Defendants reimbursed Plaintiff and the Rule 23 Class members at the 

IRS standard business mileage rate for the miles they drove in making deliveries;

f. Whether Defendants reimbursed Plaintiff and the Rule 23 Class members based on 

a reasonable approximation of the expenses they incurred;

g. Whether Plaintiff and the Rule 23 Class completed non-tipped job duties for which 

they were paid a tipped wage rate;

h. Whether Defendantsfailed to pay Plaintiff and the Rule 23 Class in a timely manner 

as described by O.R.C. § 4113.15, and, if so, whether the wages owed are “in 

dispute”; and

i. The nature and extent of class-wide injury and the measure of damages for those 

injuries. 

146. In recognition of the services Plaintiff has rendered and will continue to render to 

the Rule 23 Class, Plaintiff will request payment of a service award upon resolution of this action.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 19 of 26 PAGEID #: 19
20

Causes of Action

Count 1

Failure to Pay Minimum Wages - Fair Labor Standards Act

(On Behalf of Plaintiff and the FLSA Collective)

147. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

148. Plaintiff and the FLSA Collective are or were non-exempt, hourly employees 

entitled to receive no less than minimum wage for all hours worked. 

149. Defendants paid Plaintiff and the FLSA Collective at or close to minimum wage for 

all hours worked.

150. Defendants required and continue to require Plaintiff and the FLSA Collective to 

pay for automobile expenses and other job-related expenses out of pocket, and failed to properly

reimburse Plaintiff and the FLSA Collective for said expenses. 

151. By the acts and conduct described above, Defendants willfully violated the 

provisions of the FLSA and disregarded the rights of Plaintiff and the FLSA Collective. 

152. Plaintiff and the FLSA Collective have been damaged by Defendants’ willful failure 

to pay minimum wage as required by law. 

153. As a result of Defendants’ willful violations, Plaintiff and the FLSA Collective are 

entitled to damages, including, but not limited to, unpaid wages, unreimbursed expenses, 

liquidated damages, costs, and attorneys’ fees.

Count 2

Failure to Pay Overtime Wages – Fair Labor Standards Act

(On Behalf of Plaintiff and the FLSA Collective)

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 20 of 26 PAGEID #: 20
21

154. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

155. Plaintiff and the FLSA Collective worked more than forty hours in one or more 

workweeks. 

156. Because Defendants required Plaintiff and the FLSA Collective to pay for 

automobile expenses and other job-related expenses out of pocket, Defendants did not pay Plaintiff 

and the FLSA Collective at least one and a half times their normal hourly rate for time worked in 

excess of forty hours per workweek. 

157. By not paying Plaintiff and the FLSA Collective proper overtime wages for time 

worked in excess of forty hours in a workweek, Defendants have willfully violated the FLSA. 

158. As a result of Defendants’ willful violations, Plaintiff and the FLSA Collective are 

entitled to damages, including, but not limited to, unpaid wages, unreimbursed expenses, 

liquidated damages, costs, and attorneys’ fees.

Count 3

Failure to Pay Minimum Wages - Ohio Constitution, Article II, § 34a

(On Behalf of Plaintiff and the Rule 23 Class)

159. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

160. Defendants paid Plaintiff and the Rule 23 Class below minimum wage for the hours 

they worked by requiring them to cover automobile expenses and other job-related expenses. 

161. Defendants ostensibly paid Plaintiff and the Rule 23 Class at or close to minimum 

wage for the hours they worked.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 21 of 26 PAGEID #: 21
22

162. Because Defendants required Plaintiff and the Rule 23 Class to pay for automobile 

expenses and other job-related expenses out of pocket, Defendantsfailed pay Plaintiff and the Rule 

23 Class minimum wage.

163. By not paying Plaintiff and the Rule 23 Class at least minimum wage for each hour 

worked, Defendants has violated the Ohio Constitution, Article II, § 34a.

164. As a result of Defendants’ violations, Plaintiff and the Rule 23 Class are entitled to 

damages, including, but not limited to, unpaid wages, unreimbursed expenses, an additional two 

times unpaid wages/unreimbursed expenses in damages under Section 34a, costs, and attorneys’ 

fees.

Count 4

Failure to Pay Overtime Wages – Ohio Minimum Fair Wage Standards Act

(On Behalf of Plaintiff and the Rule 23 Class)

165. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

166. Plaintiff and the Rule 23 Class worked more than forty hours in one or more 

workweeks. 

167. Because Defendants required Plaintiff and the Rule 23 Class to pay for automobile 

expenses and other job-related expenses out of pocket, Defendants did not pay Plaintiff and the 

Rule 23 Class at least one and a half times their normal hourly rate for time worked in excess of 

forty hours per workweek. 

168. By not paying Plaintiff and the Rule 23 Class proper overtime wages for time 

worked in excess of forty hours in a workweek, Defendants have violated the OMFWSA. 

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 22 of 26 PAGEID #: 22
23

169. As a result of Defendants’ violations, Plaintiff and the Rule 23 Class are entitled to 

damages, including, but not limited to, unpaid overtime wages, unreimbursed expenses, costs, and 

attorneys’ fees.

Count 5

Untimely Payment of Wages – O.R.C. § 4113.15

(On Behalf of Plaintiff and the Rule 23 Class)

170. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

171. During all relevant times, Defendants were covered by O.R.C. § 4113.15, and 

Plaintiff and the Rule 23 Class were employees within the meaning of O.R.C. § 4113.15 and were 

not exempt from its protections.

172. O.R.C. § 4113.15(A) requires that Defendants pay Plaintiff and the Rule 23 Class 

all wages on or before the first day of each month, for wages earned during the first half of the 

preceding month ending with the fifteenth day thereof, and on or before the fifteenth day of each 

month, for wages earned during the last half of the preceding calendar month.

173. Plaintiff and the Rule 23 Class’s unpaid wages and unreimbursed expenses have 

remained unpaid for more than thirty (30) days beyond their regularly scheduled payday. 

174. In violating Ohio law, Defendants acted willfully, without a good faith basis and with 

reckless disregard to Ohio law.

175. As a result of Defendants’ willful violation, Plaintiff and the Rule 23 Class are 

entitled to unpaid wages and liquidated damages, as stated in O.R.C. § 4113.15.

Count 6

Damages Pursuant to O.R.C. § 2307.60

(On Behalf of Plaintiff and the Rule 23 Class)

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 23 of 26 PAGEID #: 23
24

176. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten 

herein.

177. The Fair Labor Standards Act, 29 U.S.C. § 216(a), imposes criminal penalties for 

willful violations of the FLSA.

178. By their acts and omissions described herein, Defendants have willfully violated the 

FLSA, and Plaintiff and the Rule 23 Class have been injured as a result.

179. O.R.C. § 2307.60 permits anyone injured in person or property by a criminal act to 

recover damages in a civil action, including exemplary and punitive damages.

180. As a result of Defendants’ willful violations of the FLSA, Plaintiff and the Rule 23 

Class are entitled to compensatory and punitive damages pursuant to O.R.C. § 2307.60.

WHEREFORE, Plaintiff James Call prays for all of the following relief:

A. Designation of this action as a collective action on behalf of the collective action 

members and prompt issuance of notice to all similarly-situated members of an opt-in class, 

apprising them of this action, permitting them to assert timely wage and hour claims in this action, 

and appointment of Plaintiff and their counsel to represent the collective action members.

B. Unpaid minimum wages, unpaid overtime wages, reimbursement of expenses, and 

an additional and equal amount as liquidated damages pursuant to the FLSA and supporting 

regulations.

C. Certification of this case as a class action pursuant to Rule 23 of the Federal Rules 

of Civil Procedure.

D. Designation of Plaintiff as representative of the Rule 23 Class and counsel of record 

as Class Counsel.

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 24 of 26 PAGEID #: 24
25

E. A declaratory judgment that the practices complained of herein are unlawful under 

Section 34a, the OMFWSA, and O.R.C. § 4113.15.

F. An award of unpaid minimum wages, unpaid overtime wages, and unreimbursed 

expenses due under Section 34a. 

G. An award of damages under Section 34a, based on Defendants’ failure to pay 

minimum wages, calculated as an additional two times of back wages. 

H. Liquidated damages under O.R.C. § 4113.15. 

I. Compensatory and punitive damages under O.R.C. § 2307.60.

J. An award of prejudgment and post-judgment interest.

K. An award of costs and expenses of this action, together with reasonable attorneys’ 

fees and expert fees. 

L. Such other legal and equitable relief as the Court deems appropriate.

Respectfully submitted,

/s/ Andrew Kimble________

Andrew Biller (0081452) (Lead Counsel)

Andrew Kimble (0093172)

Markovits, Stock & DeMarco, LLC

3825 Edwards Road, Suite 650

513-651-3700 (Phone)

513-665-0219 (Fax)

(abiller@msdlegal.com)

(akimble@msdlegal.com)

www.msdlegal.com

Counsel for Plaintiff and the putative class

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 25 of 26 PAGEID #: 25
26

JURY DEMAND

Plaintiff hereby demands a jury trial by the maximum persons permitted by law on all 

issues herein triable to a jury.

/s/ Andrew Kimble

Andrew Kimble

Case: 2:18-cv-00696-ALM-CMV Doc #: 1 Filed: 07/17/18 Page: 26 of 26 PAGEID #: 26