1 

UNITED	STATES	DISTRICT	COURT	

DISTRICT	OF	NEW	HAMPSHIRE	

Robert	GENNELL,	Jr.,	et al.,	

	 	 Plaintiffs,	

v.	

FEDEX	CORPORATION;	FEDEX	GROUND	

PACKAGE	SYSTEM,	INC.;	and	FEDEX	HOME	

DELIVERY	(a	division	thereof),	

	 	 Defendants.	

____________________________________/	

CASE	NO.	1:05‐CV‐00145	(PB)	

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR RENEWED MOTION FOR

PARTIAL SUMMARY JUDGMENT AND IN OPPOSITION TO FEDEX GROUND PACKAGE

SYSTEM INC’s RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In	their	opening	brief,	plaintiffs	‐	aided	by	the	Court’s	questions	and	analysis	

concerning	the	first	wave	of	summary	judgment	motions	filed	early	this	year	–	

demonstrated	(a)	that	they	have	satisfied	all	the	elements	of	N.H.	Stat.	Rev.	§	275:57	and,	

accordingly,	(b)	are	entitled	to	an	Order	declaring	that	their	(1)	truck	leases	and	purchases	

(2)	fuel	expenses	and	(3)	truck	maintenance	expenses	must	be	reimbursed	pursuant	to	the	

statute.		In	response,	defendants	(hereafter	collectively	referred	to	as	“FedEx”)	make	two	

main	arguments.	

FedEx’s	first	main	argument	focuses	on	one	of	the	two	(of	six)	elements	of	§	275:57	

that	are	in	dispute.	FedEx	argues	that	the	statute’s	fourth	element,	which	excludes	from	

liability	“those	expenses	normally	borne	by	the	employee	as	a	precondition	of	

employment”	must	mean	–	because	of	the	use	of	the	article	“the”	before	the	word	

“employee”	–	that	the	Court	can	only	look	at	the	plaintiffs	themselves	to	determine	if	the	

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expenses	they	paid	were	a	“precondition	of	employment.”	Since	–	continues	FedEx’s	

argument	–	the	plaintiffs	bore	those	expenses	as	a	precondition	of	their	work	at	FedEx,	

they	cannot	recover	them	under	the	statute.	

The	critical	problem	with	this	argument	is	that	it	purposefully	ignores	the	statute’s	

use	of	the	word	“normally.”	As	FedEx	concedes,	the	presence	of	the	word	changes	the	

meaning	of	this	phrase,	creating	a	comparator.		This	dovetails	precisely	with	plaintiffs’	

view.	The	use	of	the	word	“normally”	does	create	a	comparator,	and	the	appropriate	

comparison	is	–	in	FedEx’s	own	words	–	“the	employer’s	treatment	of	other,	similarly	

situated	employees”	–	namely,	the	employee	drivers	who	work	for	FedEx	Express.		Because	

the	FedEx	Express	drivers	do	not	pay	for	their	trucks,	fuel	or	maintenance	“as	a	

precondition	of	employment,”	the	statute’s	exception	does	not	apply.	

Second,	FedEx	argues	that	plaintiffs	have	already	been	paid	for	their	truck‐related	

expenses	and	thus	any	recovery	would	be	an	unjustified	windfall.	This	is	proven,	according	

to	FedEx,	by	comparing	the	drivers’	rate	of	pay	with	other	employee	drivers	in	New	

Hampshire	during	the	same	period.	

There	are	two	central	problems	with	this	argument.	The	first	is	that	plaintiffs’	rate	

of	pay	–	how	much	and	for	what	–	is	spelled	out	by	contract,	here	known	as	the	Operating	

Agreement.		No	cited	–	or	known	–	rule	of	contract	construction	permits	the	Court	to	

examine	the	rate	and	structure	of	payment	of	other drivers	working	for	other companies to	

determine	FedEx’s	contractual	obligations	under	the	Operating	Agreement.	The	second	

problem	is	that	–	even	if	the	Court	could	consider	the	rate	and	structure	of	pay	to	other	

drivers	working	for	other	companies	–	FedEx	has	cherry‐picked	the	comparison,	ignoring	

the	most	obvious	analogue,	which	is	its	own	employee	drivers	working	for	FedEx	Express.	

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	FedEx’s	legal	arguments	fail,	and	it	has	offered	no	contested	facts	that	would	

otherwise	preclude	summary	adjudication.	This	Court	has	all	it	needs	to	grant	plaintiffs’	

summary	judgment	motion.		

II. THE MOTION RECAPPED

To	recap,	plaintiffs’	motion	seeks	an	order	from	the	Court	finding	that	the	cost	of	

their	truck	(either	by	lease	or	purchase);	their	fuel	purchases;	and	their	truck	maintenance	

expenses	are	recoverable	under	N.H.	Rev.	Stat.	§	275:57.	The	first	of	the	statute’s	five	

paragraphs	is	at	issue.	It	reads:	

An	employee	who	incurs	expenses	in	connection	with	his	or	

her	employment	and	at	the	request	of	the	employer,	except	

those	expenses	normally	borne	by	the	employee	as	a	

precondition	of	employment,	which	are	not	paid	for	by	wages,	

cash	advance,	or	other	means	from	the	employer,	shall	be	

reimbursed	for	the	payment	of	the	expenses	within	30	days	of	

the	presentation	by	the	employee	of	proof	of	payment.		

In	their	opening	brief,	and	consistent	with	a	suggestion	by	the	Court	at	

argument,	plaintiffs	broke	the	statute	down	to	its	six	constituent	elements.	

They	are:	

1) An	employee	

2) who	incurs	expenses	in	connection	with	his	or	her	employment	

3) and	at	the	request	of	the	employer,	

4) except	those	expenses	normally	borne	by	the	employee	as	a	

precondition	of	employment,	

5) which	are	not	paid	for	by	wages,	cash	advance,	or	other	means	

from	the	employer,	

6) shall	be	reimbursed	for	the	payment	of	the	expenses	within	30	

days	of	the	presentation	by	the	employee	of	proof	of	payment.1

FedEx’s	brief	focuses	only	on	elements	4	and	5.	It	does	not	discuss,	and	thus	

concedes,	that	plaintiffs	have	satisfied	elements	1‐3	and	6.	Accordingly,	plaintiffs	here	will	

 

1 Plaintiffs’	10/10/2013	Br.	at	9‐20.	

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 3 of 18
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only	discuss	the	two	elements,	numbers	4	and	5	above,	that	remain	in	controversy.	

III. SUMMARY JUDGMENT STANDARD

At	this	point,	it	makes	sense	to	recall	the	shifting	burdens	that	apply	to	summary	

judgment	motions.		More	specifically:	

[w]hen	a	motion	for	summary	judgment	is	properly	supported,	

the	burden	shifts	to	the	nonmovant	to	show	that	a	genuine	

issue	exists.	Donovan v. Agnew,	712	F.2d	1509,	1516	(1st	

Cir.1983).	If	the	nonmovant	fails	to	offer	sufficient	factual	

support	to	counter	the	movant’s	proffer	on	an	element	for	

which	the	nonmovant	bears	the	burden	of	proof	at	trial,	all	

other	factual	issues	become	immaterial,	and	the	movant	is	

entitled	to	summary	judgment.		Smith v. Stratus Computer, Inc.,

40	F.3d	11,	12	(1st	Cir.1994),	petition for cert. filed,	(Feb.	21,	

1995).2

Plaintiffs	have	excerpted	the	language	above	because,	as	discussed	in	detail	below,	

FedEx	has	failed	to	satisfy	its	shifted	burden.		Rather	than	present	contested	material	facts,	

FedEx	relies	on	its	view	of	“basic	economics.”3	This	is	exactly	the	approach	FedEx	

employed	in	its	last	round	of	summary	judgment	briefing,	though	then	the	issue	was	

federal	preemption.		In	response,	the	Court	observed	that,	whatever	FedEx’s	understanding	

of	economics,	“this	is	not	a	case	where	I	can	rely	on	an	understanding	of	basic	economics	to	

substitute	for	evidence.”4	That	was	true	in	connection	with	FedEx’s	preemption	argument,	

and	it	remains	true	in	connection	with	FedEx’s	§	275:57	argument.	In	the	absence	of	actual	

evidence,	FedEx	fails	to	sustain	its	summary	judgment	burden.	

 

2 St. Hilaire v. City of Laconia,	885	F.	Supp.	349,	353	(D.N.H.),	aff’d,	71	F.3d	20	(1st	Cir.	1995),	

cert. denied,	518	U.S.	1017	(1996).	

3 FedEx	11/8/2013	Br.	at	16.	

4 Gennell v. FedEx,	2013	WL	4854362,	*7	(D.N.H.	Sept.	10,	2013).	

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IV. ARGUMENT

A. Plaintiffs satisfy the elements of N.H. Rev. § 275:57

1. First disputed element: “except those expenses normally borne by the

employee as a precondition of employment...”

a. Summary of argument 

In	their	opening	brief,	plaintiffs	pointed	out	that	the	most	obvious	application	of	this	

phrase	in	this	case’s	context	–	where	the	subject	“employee”	is	one	as	a	matter	of	law	–	was	

to	compare	the	subject’s	employee’s	circumstances	with	those	FedEx	employees	who	were	

correctly	classified.	That	interpretation	permitted	the	Court	to	apply	natural	meanings	to	

the	word	“normally”	–	which	indicates	that	the	employee’s	expense	obligation	is	to	be	

compared	with	others	–	and	the	word	“the,”	which	indicates	that	the	comparison	must	be	

to	FedEx’s	employees.	That	interpretation	led	the	analysis	to	consider	FedEx	Express	

employee	drivers,	who	do	not	pay	for	their	truck,	their	fuel,	or	their	fuel	expenses	as	a	

precondition	of	their	employment.	Thus,	by	comparing	plaintiffs	to	FedEx	Express	drivers,	

this	exception	does	not	apply	in	this	circumstance.5

b. FedEx concedes the point 

FedEx’s	main	argument	here	is	to	focus	only	on	the	word	“the.”	Argues	FedEx:	“The	

use	of	the	definite	article	‘the’	indicates	that	the	legislature	intended	for	this	exception	to	

refer	to	the	employee	actually	seeking	reimbursement	under	§ 275:57.”6	Thus	–	continues	

FedEx’s	argument	–	since	plaintiffs	bore	those	expenses	as	a	precondition	of	their	work	at	

FedEx,	they	cannot	recover	them	under	the	statute.

The	critical	problem	with	this	argument	is	that	it	purposefully	ignores	the	statute’s	

 

5 Plaintiffs’	10/10/2013	Br.	at	10‐13.	

6 FedEx	11/8/2013	Br.	at	17‐18.		

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use	of	the	word	“normally.”	This	word	creates	a	comparator,	and	makes	no	sense	if	the	

Court	only	looks	to	the	plaintiffs	themselves	to	determine	if	they	are	seeking	to	recover	

expenses	that	they	carried	as	a	condition	of	employment.	FedEx’s	only	attempt	to	reconcile	

the	statute’s	use	of	the	words	“normally”	and	“the”	is	hidden	away	in	footnote	10	on	its	

page	19,	where	it	concedes:	

To	the	extent	that	the	word	“normally”	creates	a	comparator	...	

a	comparison	can	be	made	to	either	the	employer’s	course	of	

dealing	with	the	employee	in	question,	or	to	the	employer’s	

treatment	of	other,	similarly‐situated	employees.	

Here,	FedEx	has	it	right.	The	use	of	the	word	“normally”	does	create	a	comparator,	

and	the	appropriate	comparison	is	–	in	FedEx’s	own	words	–	“the	employer’s	treatment	of	

other,	similarly	situated	employees”	–	namely,	the	employee	drivers	who	work	for	FedEx	

Express.		As	plaintiffs	pointed	out	in	their	opening	brief,	these	employee	drivers	do	not	pay	

for	their	trucks,	their	fuel,	or	their	maintenance,	and	FedEx	has	done	nothing	in	response	to	

contest	that.		Thus,	consistent	with	how	FedEx	acknowledges	the	statute	must	be	

interpreted,	the	correct	comparison	is	FedEx	Express	employee	drivers.	Because	the	FedEx	

Express	drivers	do	not	pay	for	their	trucks,	fuel	or	maintenance	“as	a	precondition	of	

employment,”	the	statute’s	exception	does	not	apply.	

The	failure	of	FedEx’s	argument	is	demonstrated	by	this	point:	Under	its	

formulation	of	this	element	of	§	275:57,	a	misclassified	employee	–	that	is,	a	person	who	

was	improperly	classified	as	an	independent	contractor	–	could	never	recover	under	this	

statute	because	she	always	bore	expenses	as	a	“precondition”	of	her	work	(not	

employment).	If	the	Legislature	had	intended	to	exclude	misclassified	employees	from	the	

reach	of	this	statute,	then	the	statute	would	so	state.	It	does	not.	

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2. Second disputed element:			“which are not paid for by wages, cash

advance, or other means from the employer.”

a. Summary of argument 

In	their	opening	brief,	plaintiffs	focused	on	the	language	of	the	Operating	

Agreement,	which	is	crystal	clear:		

Contractor	agrees	to	bear	all	costs	and	expenses	incidental	to	

operation	of	Equipment,	whether	empty	or	loaded,	including,	

without	limitation,	all	risks	of	depreciation,	all	maintenance	

(including	cleaning	and	washing),	fuel,	oil,	tires,	repairs,	

business	taxes,	consumption	and	sales	taxes,	personal	property	

taxes,	ad	valorem	taxes,	fuel	and	road‐use	taxes,	ton‐mile	taxes,	

insurance	coverage	as	provided	herein,	workers	compensation	

assessments,	licenses,	vehicle	registration	renewal	fees,	base	

plates,	and	all	highway,	bridge	and	ferry	tolls).7

This	unqualified	language	of	the	Operating	Agreement	makes	it	clear	that	truck‐

related	expenses	(purchase	or	lease,	fuel	and	maintenance)	are	not	covered	by	FedEx’s	

payment.	Instead,	drivers	bear	these	costs,	which	means	this	second	statutory	exception	to	

liability	does	not	apply	to	plaintiffs’	claims.	

In	response,	FedEx	largely	skirts	the	language	of	the	Operating	Agreement,	though	

in	its	“Statement	of	Undisputed	Material	Facts”		agrees	that	“[u]nder	the	[Operating	

Agreement],	Plaintiffs	agreed	to	provide	their	own	delivery	vehicles,	to	bear	all	costs	and	

expenses	incidental	to	operation	of	the	vehicles,	and	to	bear	the	cost	of	package	delivery	

scanners.”8		

Notwithstanding	that	concession	–	that	plaintiffs	paid	for	their	trucks	and	costs	

associated	with	their	trucks	–	FedEx	argues	that	“[a]s	a	matter	of	basic	economics,	

 

7 Lewis 10/10/2013 Decl., Ex. A, at ¶ 1.3.

8 FedEx	11/8/2013	Br.	at	2.		

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[p]laintiffs’	argument	is	baseless”9 because	FedEx	has	located	statistics	that	show	that,		

compared	with	other	New	Hampshire	employee	drivers,	“[p]laintiffs’	gross	income	was	

well	above	the	market	rate	for	employee	delivery	drivers.”10	This	argument	fails,	for	two	

fundamental	reasons.	

b. Evidence of what others drivers were paid is irrelevant to interpreting the 

contract between FedEx and plaintiffs 

FedEx	acknowledges,	as	it	must,	that	“[d]uring	the	time	that	[p]laintiffs	performed	

pickup	and	delivery	services	for	[FedEx],	their	relationship	with	[FedEx]	was	governed	by	a	

contract	called	the	Operating	Agreement.”11		The	essence	of	FedEx’s	argument	is	that	

payment	terms	–	generally	the	critical	focus	of	any	contract,	and	certainly	at	the	heart	of	

the	FedEx	Operating	Agreement	–	can	be	determined	not	by	the	language	found	in	the	

contract,	but	by	comparing	plaintiffs’	payment	to	what	other	companies	paid	their	

employee	drivers	at	the	same	time.	This	sort	of	analysis	goes	beyond	any	rule	of	contract	

construction,	and	FedEx	cites	no	case,	rule	or	law	suggesting	otherwise.	

In	sum,	what	plaintiffs	were	paid	for	is	a	matter	of	contract	interpretation.		Familiar	

rules	apply:	

When	interpreting	a	written	agreement,	we	give	the	language	

used	by	the	parties	its	reasonable	meaning,	considering	the	

circumstances	and	the	context	in	which	the	agreement	was	

negotiated,	and	reading	the	document	as	a	whole.	We	give	an	

agreement	the	meaning	intended	by	the	parties	when	they	

wrote	it.	Absent	ambiguity,	however,	the	parties’	intent	will	be	

determined	from	the	plain	meaning	of	the	language	used	in	the	

contract.12

 

9 FedEx	11/8/2013	Br.	at	16.	

10 Id. at	12.	

11 Id. at	9‐10.		

12 Birch Broadcasting, Inc. v. Capitol Broadcasting Corporation, Inc.,	161	N.H.	192,		196,	13	

A.3d	224,	228	(N.H.	2010)(internal	quote	marks	and	citations	omitted).	

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The	Operating	Agreement’s	language,	quoted	above,	leaves	no	room	for	doubt:	The	

plaintiffs	alone	were	financially	responsible	to	acquire,	maintain	and	fuel	their	trucks.	This	

is	so	far	beyond	dispute	that	FedEx	acknowledges	it	in	its	Statement	of	Undisputed	Facts13

and	this	Court	so	held	in	its	summary	judgment	decision	in	September:		

Deemed	“independent	contractors,”	the	drivers	were	required	

to	procure	their	own	trucks	and	operate	them	at	their	own	

expense.	...	(requiring	the	drivers	to	bear	all	costs	and	

expenses	of	operating	the	trucks,	including	maintenance,	fuel,	

oil,	tires,	repairs,	taxes,	insurance,	workers	compensation	

assessments,	licenses,	vehicle	registration	fees,	and	tolls).14

In	its	brief,	FedEx	seeks	to	introduce	snippets	of	testimony,	both	from	a	few	

plaintiffs	and	a	few	FedEx	executives,15	as	to	what	Operating	Agreement’s	payment	

provisions	mean.		This	subjective	understanding	is	not	relevant	to	the	Court’s	analysis,	for	

two	reasons.	First,	the	meaning	of	the	Operating	Agreement	is	clear	on	its	face.	Second,	if	

the	language	is	found	to	be	ambiguous,	its	meaning	“must	be	determined,	under	an	

objective	standard,	what	the	parties,	as	reasonable	people,	mutually	understood	the	

ambiguous	language	to	mean.”16

The	evidence	that	FedEx	seeks	to	introduce	–	the	rate	of	payment	of	drivers	from	

other	companies	–	is	extrinsic	evidence.	That	type	of	evidence	does	not	come	in	unless	

there	is	a	finding	that	the	contract	is	ambiguous,	in	which	case	the	meaning	of	the	contract	

must	be	established	by	the	factfinder:	“When	a	trial	court	properly	looks	to	extrinsic	

evidence	to	determine	the	intent	of	the	parties,	the	question	of	a	contract	term’s	meaning	

 

13 FedEx	11/8/2013	Br.	at	2	(“[u]nder	the	[Operating	Agreement],	Plaintiffs	agreed	to	

provide	their	own	delivery	vehicles,	to	bear	all	costs	and	expenses	incidental	to	operation	

of	the	vehicles,	and	to	bear	the	cost	of	package	delivery	scanners.”).

14 Gennell v. FedEx Ground Package System, Inc.,	2013	WL	4854362,	*2	(D.N.H.	Sept.	10,	

2013).	

15 FedEx	11/10/2013	Br.	at	10‐11.	

16 Birch Broadcasting,	161	N.H.	at	196,	13	A.3d	at	228.	

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should	be	left	to	the	trier	of	fact	unless	the	meaning	of	the	extrinsic	evidence	is	so	clear	that	

unreasonable	people	could	reach	only	one	conclusion.”	

But	not	all	types	of	extrinsic	evidence	are	admissible	when	interpreting	contracts:		

In	descending	order	of	importance,	extrinsic	evidence	may	

include:	(1)	the	parties’	negotiations	on	the	particular	loan,	(2)	

their	course	of	performance,	(3)	their	prior	course	of	dealing,

see id.;	and	(4)	trade	usage	in	the	relevant	...	industry...	17

FedEx	might	be	unable	to	resist	arguing	that	its	summary	of	how	other	drivers	were	

paid	by	their	employers	constitutes	“trade	usage	in	the	relevant	...	industry”	and	is	thus	

admissible	as	extrinsic	evidence.	But	there	is	no	support	for	this	argument,	assuming	it	is	

made.		“Trade	usage	in	the	relevant	...	industry”	usually	refers	to	technical	contract	terms	

that	are	generally	outside	common	knowledge.18		FedEx	points	to	no	contested	technical	

term;	instead	it	relies	on	this	extrinsic	evidence	to	support	its	view	of	the	“basic	

economics.”	

Finally,	there	is	the	Operating	Agreement’s	Van	Availability	Settlement	and	Daily	

Mileage	Supplement,	which	both	parties	have	cited	to	support	their	respective	positions.	

Plaintiffs’	position	is	detailed	in	their	opening	brief19	and	does	not	require	repeating	here.		

And	to	the	extent	that	there	is	any	real	doubt	as	to	the	meaning	of	the	Van	Availability	

Supplement	and	Daily	Mileage	Supplement	–	both	of	which	specifically	say	that	they	

compensate	drivers’	services	‐	that	doubt	is	erased	by	the	Operating	Agreement’s	specific	

 

17 Den Norske Bank As v. First National Bank of Boston,	75	F.3d	49,	52‐53	(1st	Cir.	

1996)(citations	omitted).		

18 E.g., Appling v. State Farm Mut. Auto. Ins. Co.,	340	F.3d	769,	778	(9th	Cir.	2003),	cert.

denied,	543	U.S.	871	(2004)(“As	an	example	of	what	it	meant	by	use	of	extrinsic evidence	to	

interpret the	words	in	a	contract,	Pacific Gas	pointed	out	that	evidence	of	trade usage	or	

custom	has	been	admitted	to	show	that	the	term	‘United	Kingdom’	in	a	motion	picture	

distribution	contract	included	Ireland.”).

19 Plaintiffs’10/10/2013	Br.	at	15‐16.

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and	unqualified	¶	1.3	(quoted	above).20

In	sum,	FedEx’s	argument	–	that	plaintiffs’	compensation	can	be	determined	by	

reference	to	what	other	companies	pay	their	drivers	–	only	comes	in	if:	

• there	is	a	finding	that	the	Operating	Agreement	is	ambiguous	

• in	which	case	there	must	be	a	trial,		

• which	itself	defeats	FedEx’s	motion	for	summary	judgment.	

And	even	if	the	analysis	goes	that	far,	there	is	no	precedent	for	the	consideration	of	

what	other	drivers	are	paid	to	determine	how	plaintiffs	are	paid.		In	Estrada v. FedEx

Ground Package System, Inc.21	FedEx	made	the	same	argument	–	that	its	compensation	paid	

drivers	for	their	truck‐related	expenses	notwithstanding	the	unqualified	language	in	the	

Operating	Agreement	–	and	the	claim	was	rejected:	“FedEx’s	suggestion	that	the	settlement	

formula	is	keyed	to	specific	expenses	and,	as	such,	includes	reimbursement	for	those	

expenses,	is	not	supported	by	any	evidence.”22		FedEx	claims	now	that	Estrada	should	be	

distinguished	because	it	“presents	several	forms	of	undisputed	evidence...”23	But	the	

subjective	testimony	and	the	drivers’	survey	cannot	be	considered,	and	the	Operating	

Agreement	plainly	and	clearly	provides	that	FedEx’s	payments	do	not	cover	truck‐related	

expenses.		

c. FedEx’s comparison fails to consider overtime and ignores FedEx Express 

employee drivers 

The	payment	rates	of	other	employee	drivers	working	for	other	companies	is,	as	

explained	above,	extrinsic	evidence	that	is	not	considered	in	interpreting	FedEx’s	

Operating	Agreement.	But	even	if	it	is	considered,	it	is	inadequate	to	satisfy	FedEx’s	

 

20 E.g., Chadwick v. C.S.I., Ltd.,	137	N.H.	515,	525,	629	A.2d	820,	827	(N.H.	1993)(“[W]e	

interpret	the	terms	of	a	contract	by	considering	the	contract	as	a	whole..”).

21 154	Cal.	App.	4th	1,	64	Cal	Rptr.3d	327	(Cal.	Ct.	App.	2007).	

22 Id. at	15,	64	Cal.	Rptr.3d	at	339.	

23 FedEx	11/8/2013	Br.	at	17.		

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 11 of 18
12 

summary	judgment	burden	at	this	stage.	The	evidence	has	at	least	three	significant	gaps.	

First,	the	drivers’	wages	against	whom	FedEx	compares	plaintiffs’	payments	do	not	

include	either	overtime	or	the	value	of	employee	benefits,	a	detail	FedEx	concedes	only	in	

footnote	6	on	page	12	of	its	brief.		If	those	drivers	were	paid	either,	or	both,	overtime	or	

benefits,	the	value	of	their	wages	would	radically	improve.			

Second,	FedEx	has	intentionally	taken	those	statistics	that	combine	all	types	of	

drivers	from	a	variety	of	industries	that	have	significant	differences	in	pay.	On	a	national	

level,	the	Bureau	of	Labor	Statistics	identified	five	industries	with	the	highest	concentration	

of	light	truck/delivery	service	drivers,	and	for	drivers	in	the	“courier	and	express	delivery	

services”	industry	–	the	industry	of	which	plaintiffs	are	a	part	–	the	annual	mean	wage	was	

$53,710.24 	While	the	New	Hampshire	statistics	do	no	provide	a	breakdown	of	wages	by	

industry,	the	national	industry	breakdown	nonetheless	provides	a	more	apt	comparison,	

and	more	nearly	approximates	what	the	eight	test	plaintiffs	earned	while	at	FedEx.	

Finally,	FedEx	does	not	account	for	the	average	wages	of	its	FedEx	Express	drivers.	

But	according	to	plaintiffs’	MDL	expert,	during	the	relevant	period,	FedEx	Express	drivers	

averaged	$57,797	in	“reasonable	compensation”	between	2002‐06,25	an	amount	in‐line	

with	the	average	of	the	eight	test	plaintiffs.	

The	point	here	is	that	FedEx’s	statistics,	even	if	they	are	considered,	do	nothing	to	

advance	FedEx’s	arguments	and	do	not	satisfy	its	Rule	56	summary	judgment	burden.	

B. FedEx’s other arguments and exaggerations do not satisfy its Rule 56 burden

Throughout	its	25‐page	brief,	FedEx	makes	certain	arguments	and	otherwise	

exaggerates	or	takes	liberties	with	the	record	and	with	the	substance	of	plaintiffs’	

 

24 http://www.bls.gov/oes/current/oes533033.htm#nat.	

25 Lewis Reply Decl. at Ex. A.

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positions.		These	contentions,	while	minor,	warrant	comment	and	correction.	

1. FedEx misstates testimony to support its claimed “Undisputed Material

Facts”

In	paragraph	11	of	FedEx’s	“Statement	of	Undisputed	Material	Facts”	section,		FedEx	

asserts	that	“[p]laintiffs	understood	that	FXG	paid	them	the	Van	Availability	Settlement	as	

revenue	for	their	vehicle	expenses.”26	As	discussed	above,	because	the	Operating	

Agreement	is	to	be	construed	on	an	objective	basis,	the	subjective	understanding	of	

“plaintiffs”	is	not	relevant.	But,	worse,	the	language	quoted	by	FedEx	from	three	drivers	to	

support	the	“statement”	does	not	come	close	to	the	mark	claimed	by	FedEx.27

2. FedEx misstates plaintiffs’ claim to support its other arguments

FedEx	repeatedly	characterizes	plaintiffs’	claim	as	an	attempt	to	“creat[e]	a	

boundless	right”28	or	something	equivalent.29		These	represent	FedEx’s	attempt	to	radically	

misstate	the	nature	of	plaintiffs’	argument.	(This	attempt	then	is	used	by	FedEx	to	justify	its	

federalism	argument.30)		Along	the	same	lines,	FedEx	concludes	that	“[a]n	employer	...	

should	not	be	required	to	divine	a	statewide	or	industry	norm	to	determine	whether	its	

own	employees	can	bear	their	expenses	as	a	precondition	of	employment.”31

As	explained	above,	plaintiffs	do	nothing	more	than	to	literally	interpret	the	statute	

 

26 FedEx	11/8/2013	Br.	at	4.		

27 Bills:	“FedEx	used	to	pay	us	that	amount	...	every	day	that	our	van	was	available	for	

work,	which	was	every	day;”	Gennell:	“Van	availability.	That	was	the	days	that	I	made	my	

truck	available	to	work,	and	they	paid	us	$45	a	day;”	Robinson:	“Any	day	there	was	a	

vehicle	on	the	road,	you	would	get	the	van	availability.”	

28 FedEx	11/8/2013	Br.	at	1.	

29 Id. at	8	(“If	the	legislature	intended	to	create	a	broad	new	right...”);	id. at	18	(“An	

employer	seeking	to	comply	with	New	Hampshire	law	should	not	be	required	to	divine	a	

statewide	or	industry	norm	to	determine	whether	its	own	employees	can	bear	their	

expenses	as	a	precondition	of	employment.”);		

30 Id. at	8‐9.

31 Id. at	18.		

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and	apply	it	against	the	facts	presented.		Plaintiffs’	claim	does	not	ask	an	employer	to	

“divine”	anyone	else’s	intentions,	only	its	own.		Where	an	employer	has	a	practice	to	cover	

certain	employee	expenses,	that	employer’s	practices	–	alone	–	will	be	at	issue.	Ironically,	

despite	FedEx’s	complaint,	it	is	FedEx,	not	plaintiffs,	that	seeks	to	introduce	evidence	of	

what	other	employers	paid	their	employees	to	interpret	its	own	contract.		

3. FedEx’s resort to legislative history is based on false premises

FedEx	attempts	to	finesse	the	requirement	that	a	statute	must	be	ambiguous	before	

its	legislative	history	may	be	considered	by	offering	this:	“Courts	also	review	legislative	

history	where	more	than	one	reasonable	interpretation	of	the	statutory	language	exists.”32

That	language	–	which	FedEx	posits	as	different	than	describing	an	ambiguity	–	in	fact	is	a	

perfect	definition	of	ambiguity:	“The	language	of	a	contract	is	ambiguous	if	the	parties	to	

the	contract	could	reasonably	disagree	as	to	the	meaning	of	that	language.”33	The	New	

Hampshire	Supreme	Court	is	crystal	clear	as	to	the	limits	of	legislative	history:	“If	a	statute	

is	ambiguous,	however,	we	consider	legislative history	to	aid	our	analysis.”34

Thus,	even	under	FedEx’s	logic,	it	does	not	get	to	consider	legislative	history	until	it	

demonstrates	that	there	is	something	ambiguous	about	the	statute	it	wants	to	construe.	It	

has	not	done	so.	

4. FedEx’s “federalism” argument is based on false premises

FedEx	suggests	that	principles	of	federalism	are	implicated	by	plaintiffs’	argument,	

asserting	that	plaintiffs	“ignore	...	principles	of	federalism.”35	This	remarkable	claim	is	

 

32 Id. at	8	(internal	quotes	and	citation	omitted).	

33 Birch Broadcasting, Inc. v. Capitol Broadcasting Corp.,	161	N.H.	192,	196,	13	A.3d	224,	228	

(N.H.	2010).	

34 State v. Spade,	161	N.H.	248,	251,	13	A.3d	855,	858	(N.H.	2010).		

35 FedEx	11/8/2013	Br.	at	8.		

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 14 of 18
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premised	entirely	on	FedEx’s	exaggeration	of	plaintiffs’	argument.36	Plaintiffs	do	nothing	

more	than	ask	the	Court	to	interpret	the	statute	to	recognize	the	claim	created	by	the	state	

Legislature.	Principles	of	federalism	are	not	implicated	by	this	motion.37

5. FedEx’s “answer” to the Court’s hypothetical begs the question		

On	page	22	of	its	brief,	FedEx	returns	to	one	of	the	Court’s	posed	hypotheticals	–	

where	an	employee	agreed	to	purchase	a	laptop	in	exchange	for	an	increase	in	

compensation	–	and	then	concludes:	“[T]hat	is	precisely	the	scenario	that	the	Court	faces	

here	‐	Plaintiffs	agreed	to	bear	their	own	expenses	and,	in	turn,	received	increased	

compensation	...”		The	problem:	FedEx’s	“proof”	–	what	other	employers	paid	their	drivers	

–	cannot	be	considered	when	interpreting	FedEx’s	Operating	Agreement	and,	just	as	fatally,	

even	a	cursory	review	of	FedEx’s	survey	shows	its	presentation	is	flawed	and	nearly	

meaningless.	

6. FedEx offers nonsensical non‐sequiturs in support of its argument that

the drivers were paid for truck expenses notwithstanding the

unambiguous language in the Operating Agreement

FedEx,	in	contending	that	it	paid	drivers	for	their	truck‐related	expenses	–	

notwithstanding	its	clear	language	to	the	contrary	–	finds	“support”	in	its	review	of	its	

“Sourcing	Guide,”	which	plaintiffs	introduced	in	their	opening	brief.	FedEx	asserts:	“Even	

the	documents	Plaintiffs	rely	on	confirm	that	[FedEx]	structured	the	settlement	to	enable	

 

36 Id. at	9	(“This	Court	should	be	especially	hesitant	to	create	the	new	right	urged	by	

Plaintiffs	here...”).

37 E.g., U.S. v. Jones,	415	F.3d	256,	265	(2nd	Cir.	2005)(“	[T]he	‘principles	of	federalism	and	

comity	embodied	in	the	full	faith	and	credit	statute	are	not	endangered	when	a	sentencing	

court,	not	questioning	the	propriety	of	the	state's	determination	in	any	way,	interprets	how	

to	apply	New	York's	youthful	offender	adjudications	to	a	Guidelines	analysis....”)(citation	

omitted).

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 15 of 18
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drivers	to	earn	a	profit	after	expenses.”38	This	cannot	possibly	be	surprising	–	FedEx	would	

never	solicit	new	drivers	by	calculating	that	they	would	lose	money	if	they	drove	for	FedEx	

–	and	is	irrelevant.	The	issue	is	not	whether	the	drivers	netted	a	profit.	The	issue	is	

whether	FedEx’s	payments	to	drivers	covered	their	truck‐related	expenses.		The	Operating	

Agreement	makes	it	clear	that	the	payments	do	not	cover	those	expenses.	

7. FedEx misstates the record in its opposition to the FedEx Express

comparison

FedEx	argues	that	the	plaintiffs’	comparison	to	FedEx	Express	drivers	fails	because,	

it	claims,	“the	facts	...	are	inadmissible	or	unsupported	by	any	record	evidence.”39	The	best

that	argument	would	get	FedEx	–	if	it	was	true	–	is	a	trial	on	the	issue	of	whether	FedEx	

Express	drivers	pay	for	their	truck‐related	expenses.	But	it’s	not	true.	Plaintiffs	attached	to	

their	opening	brief	the	report	of	their	expert	Frances	McCloskey,	who	both	made	the	

comparison	and	attached	to	her	report	the	source	documents	from	which	she	worked.		

Thus,	the	facts	are	before	this	Court.		Moreover,	as	FedEx	must	acknowledge,	the	common	

features	between	FedEx	Express	drivers	and	plaintiffs	can be	the	subject	of	expert	

testimony.40

V. CONCLUSION

In	plaintiffs’	opening	brief,	they	showed	that	FedEx	enjoyed	a	windfall	by	(a)	

 

38 FedEx	11/8/2013	Br.	at	11.	

39 Id. at	20	n.11.	

40 See Wells v. FedEx Ground Package Sys.,	 2013	 WL	 5436608,	 *8	 (E.D.	 Mo.	 Sept.	 27,	

2013)(“In	these	reports,	FedEx	contends	Miller	offers	...	completely	new	opinions:	(1)	that	

the	 duties	 of	 	 ‘FedEx	 Express	 couriers’	 are	 ‘very	 similar’	 to	 those	 of	 FedEx	 pick	 up	 and	

delivery	drivers;	(2)	that	the	job	description	of	a	‘Pay	Code	8KCourier’	employee	at	Express,	

‘fits	most	closely	with	that	of	a	FedEx	Ground	delivery	driver’	...		Here,	Miller’s	reports	are	

based	on	discovery	Plaintiffs	received	regarding	Express	and	Freight	drivers	that	was	not	

previously	available	to	them	due,	in	part,	to	FedEx’s	actions	...		Under	these	circumstances,	

the	Court	finds	the	supplemental	reports	are	not	untimely.”).	

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 16 of 18
17 

improperly	classifying	its	drivers	and,	when	a	court	concluded	that	misclassification	had	

occurred,	(b)	still	refused	to	reimburse	those	drivers	for	expenses	that	are	ordinarily	the	

responsibility	of	an	employer.		That	remains	true.	But	plaintiffs’	argument	does	not	rest	on	

equity.		Plaintiffs	ask	only	that	the	Court	apply	conventional,	orthodox	rules	of	construction	

–	both	to	interpret	N.H.	Stat.	Rev.	§	275:57	and	FedEx’s	Operating	Agreement.		Plaintiffs’	

claim	relies	only	on	simple	grammatical	analysis,	aided	by	well‐established	interpretive	

rules.		Plaintiffs’	have	satisfied	their	requirements	under	Rule	56,	and	their	arguments	are	

not	rebutted.	They	are	entitled	to	a	declaration	that	their	truck	expenses	–	purchase	and/or	

lease;	fuel;	and	maintenance	–	are	recoverable	under	§	275:57.	

Dated:	November	22,	2013.	

		 	 	 	 	 						By:	/s/ Jordan M. Lewis		 	

Jordan	M.	Lewis,	Esquire	(pro hac vice)

Kelley Uustal, PLC		

700	S.	E.	3rd	Avenue,	Suite	300	

Fort	Lauderdale,	Florida	33316	

Telephone:	(954)	522‐6601	

Facsimile:			(954)	522‐6608	

Email:										jml@kulaw.com	

‐and‐		

Edward	O’Brien	(NH	Bar	No:	2866)	

O’BRIEN LAW FIRM, PC

One	Sundial	Avenue,	Fifth	Floor	

Manchester,	New	Hampshire	03103	

Telephone:		 (603)	672‐3800	

Email:		 	eobrien@star.net	

‐and‐		

Susan	Ellingstad,	Esquire	(pro hac vice)

Lockridge Grindal Nauen, PLLP

100	Washington	Avenue	S,		Suite	2200	

Minneapolis,	MN	55401	

Telephone:		 (612)	339‐6900	

Email:		 seellingstad@locklaw.com	

Attorneys for Plaintiffs

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 17 of 18
18 

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that	the	true	and	correct	copy	of	the	foregoing	has	been	

furnished	via	CM/ECF	Electronic	Notification	this	22nd	day	of	November,	2013	to	the	

following:		

James	Rehnquist,	Esquire	

Goodwin	Proctor	

Exchange	Place	

53	State	Street	

Boston,	MA	02109	

jrehnquist@goodwinproctor.com	

Lucy	Karl,	Esquire	

Shaheen	&	Gordon,	P.A.	

107	Storrs	Street	

Concord,	NH	033020	

lkarl@shaheengordon.com	

						 /s/ Jordan M. Lewis		 	 	

Jordan	M.	Lewis,	Esquire	(pro hac vice)

	 	 	 	 	 	 		

Case 1:05-cv-00145-PB Document 87 Filed 11/22/13 Page 18 of 18