United States District Court, D. Massachusetts
BERNARD WAITHAKA, on behalf of himself and others similarly situated, Plaintiffs,
AMAZON.COM, INC. and AMAZON LOGISTICS, INC., Defendants.
ORDER AND MEMORANDUM ON DEFENDANTS' MOTION TO
COMPEL ARBITRATION OR, IN THE ALTERNATIVE, TO TRANSFER OR
TIMOTHY S. HILLMAN DISTRICT JUDGE.
Waithaka (“Plaintiff”), commenced this class
action lawsuit against Amazon.com Inc., and Amazon Logistics
Inc. (“Defendants”) alleging improper
classification as independent contractors and violations of
state wage laws. Defendants have moved to compel arbitration
or, in the alternative, to transfer or stay this litigation.
(Docket No. 29) For the reasons stated below, Defendants'
motion is granted in part and
denied in part.
is a delivery driver for Defendants and classified as an
independent contractor. As a result of that classification,
Plaintiff (and other drivers similarly classified) must
supply their own vehicles and pay expenses necessary to
perform their jobs, such as insurance, gas, phone, and data
plan. Consequently, Plaintiff alleges that his hourly wage
fell below the minimum required by Massachusetts law.
parties' agreement contained an arbitration agreement,
YOU AND AMAZON AGREE TO RESOLVE DISPUTES BETWEEN YOU AND
AMAZON ON AN INDIVIDUAL BASIS THROUGH FINAL AND
BINDING ARBITRATION, UNLESS YOU OPT OUT OF
ARBITRATION WITHIN 14 CALENDAR DAYS OF THE EFFECTIVE DATE OF
THIS AGREEMENT, AS DESCRIBED BELOW IN SECTION 11.
(Docket No. 31-2, at 10) (emphasis in original). In addition,
the agreement contained the following choice-of-law
12. Governing Law.
The interpretation of this Agreement is governed by the law
of the state of Washington, except for Section 11 of this
Agreement, which is governed by the Federal Arbitration Act
and applicable federal law.
(Docket No. 31-2, at 15).
arbitration agreements are governed pursuant to the Federal
Arbitration Act. 9 U.S.C. §§1-301. See Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001)
(holding that the FAA extends to employees other than
transportation workers in employment cases). The FAA was
enacted to combat “longstanding judicial hostility to
arbitration agreements and to ‘place such agreements
upon the same footing as other contracts.'”
United States ex rel. Hagerty v. Cyberonics, Inc.,
146 F.Supp.3d 337 (D. Mass. 2015) (quoting Allied-Bruce
Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 271
(1995)). When “construing an arbitration clause, courts
and arbitrators must ‘give effect to the contractual
rights and expectations of the parties.'”
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp.,
559 U.S. 662, 682 (2010) (quoting Volt Information
Sciences, Inc. v. Board of Trustees of Leland Stanford Junior
Univ., 489 U.S. 468, 479 (1989)). The FAA institutes
“a liberal federal policy favoring arbitration
agreements” thus “establish[ing] . . . as a
matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of
arbitration.” Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
FAA Transportation Worker Exemption
contains an exception for “contracts of employment of
seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce.” 9 U.S.C.
§ 1. Plaintiff contends that his employment as a
last-mile delivery driver falls within this exception and
consequently that the FAA does not apply.
Circuit City v. Adams, the Supreme Court,
interpreting the exemption, relied on the general principle
of statutory interpretation ejusdem generis, which
provides that general words following specific words in
statutes should be interpreted to be similar in nature to the
specific words they follow. 532 U.S. 105, 114-15 (2001).
Accordingly, the Court held that “the residual clause
should be read to give effect to the terms ‘seamen'
and ‘railroad employees,' and should itself be
controlled and defined by reference to the enumerated
categories of workers which are recited just before
it.” Id. at 115. Therefore, the question
presented is whether reading the residual clause to apply to
last-mile delivery drivers gives effect to the enumerated
categories of workers in the exception.
the Court narrowly interpreted the exemption, it did not
provide any further guidance regarding which transportation
workers fall within its scope. The First Circuit has not yet
had the occasion to address how courts should interpret the
residual clause. And “[a]lthough several other circuit
courts throughout the country have addressed the topic,
little consensus has been realized.” Kowalewski v.
Samandarov, 590 F.Supp.2d 477, 484 (S.D.N.Y. 2008).
There is one area, however, where a consensus has emerged:
truck drivers. “[T]hat is, drivers actually
involved in the interstate transportation of physical goods .
. . have been found to be ‘transportation workers'
for purposes of the residuary exemption in Section 1 of the
FAA.” Id.; see also Lenz v. Yellow
Transp., Inc., 431 F.3d 348, 351 (8th Cir. 2005)
(“Indisputably, if Lenz were a truck driver, he would
be considered a transportation worker under § 1 of the
FAA.”); Palcko v. Airborne Express, 372 F.3d
588, 593-94 (3d Cir. 2004) (assuming that truck drivers fall
within the scope of the exemption); Harden v. Roadway
Package Sys., 249 F.3d 1137, 1140 (9th Cir. 2001)
(“As a delivery driver . . . Harden contracted to
deliver packages ‘throughout the United States, with
connecting international service.' Thus, he engaged in
interstate commerce that is exempt from the FAA.”);
Carr v. Transam Trucking, Inc., 2008 WL 1776435, at
*2 (N.D. Tex. Apr. 14, 2008) (“Truck drivers, like
plaintiff, are considered ‘transportation workers'
within the meaning of this exemption.”); Veliz v.
Cintas Corp., 2004 WL 2452851, at *5 (N.D. Cal. Apr. 5,
2014) (“The most obvious case where a plaintiff falls
under the FAA exemption is where the plaintiff directly
transports goods in interstate [commerce], such as [an]
interstate truck driver whose primary function is to deliver
mailing packages form one state into another.”).
truck drivers engaged in interstate commerce, however,
Plaintiff does not carry goods across state lines. Defendants
argue that this distinction precludes application of the
exemption to last-mile drivers. See Magana v. Doordash,
Inc., 343 F.Supp.3d 891, 899 (N.D. Cal. 2018)
(concluding exemption did not apply to a plaintiff who did
“not allege that he ever crossed state lines as part of
his work. As such, there is no allegation that he engaged in
interstate commerce under the definition of the
narrowly-construed term.”). Vargas v. Delivery
Outsourcing, LLC, 2016 WL 946112, at *4 (N.D. Cal. Mar.
14, 2016) (finding drivers not within the residual exemption
because the evidence did “not support the conclusion
that Plaintiffs made interstate deliveries even
occasionally.”); Levin v. Caviar, Inc., 146
F.Supp.3d 1146, 1152 (N.D. Cal. 2015) (finding a driver who
delivered prepared meals did not fall within the exemption
because he did “not shown that he or any other
similarly situated delivery driver ever made trips across
state lines” and because the defendant did “not
identify itself as being engaged in the interstate transport
of goods . . . nor are the prepared meals Plaintiff delivers
a type of good . . . that is ‘indisputably' part of
the ‘stream of commerce.'”).
cases above, however, are distinguishable from the facts
here. The plaintiffs in Magana and Levin,
for instance, delivered prepared meals from local restaurants
or merchants to local customers. See Magana, 343
F.Supp.3d at 895; Levin, 146 F.Supp.3d at 1154
(“[I]ngredients contained in the food that Plaintiff
ultimately delivered from restaurants ended their interstate
journey when they arrived at the restaurant where they were
used to prepare meals.”). Here, however, the goods do
not stop and a restaurant where they are cooked and combined
to create a new product. Instead there is a “continuity
of movement” of the goods delivered by Amazon
interstate until they reach customers. See Walling v.
Jacksonville Paper Co., 317 U.S. 564, 568 (1943)
(“A temporary pause in their transit does not mean that
[goods] are no longer ‘in commerce' within the
meaning of [the Fair Labor Standards Act]. As in the case of
an agency if the halt in the movement of the goods is a
convenient intermediate step in the process of getting them
to their final destinations, they remain ‘in
commerce' until they reach those points. Then there is a
practical continuity of movement of the goods until the reach
the customers for whom they are intended. That is sufficient.
Any other test would allow formalities to conceal the
continuous nature of the interstate transit which constitutes
commerce.”). In addition, in Vargas, the
plaintiff delivered delayed airline luggage to its owners.
The luggage, however, “was not a ‘good' to be
delivered until it was delayed or lost by the airline and
then discovered when it was already intrastate. Much like a
food delivery service, a luggage delivery service is not
engaged in interstate commerce because it is not in the
business of shipping goods across state lines, even though it
delivers good that once travelled interstate.”
Rittmann v. Amazon.com, Inc., 2019 WL 1777725, at *3
(W.D. Wash. Apr. 23, 2019) (distinguishing delivery drivers
in Vargas from last-mile delivery drivers for
Amazon). Here, on the other hand, the goods are
“goods” for their entire journeys across state
have also held that while physically transporting goods
across state lines is a factor to be considered, it is not a
necessary condition to the application of the residual
exemption. See Palcko v. Airborne Express, Inc., 372
F.3d 588, 593-94 (3d Cir. 2004) (“[H]ad Congress
intended the residual clause of the exemption to cover only
those workers who physically transported goods across state
lines, it would have phrased the FAA's language
accordingly.”); Lenz v. Yellow Transp., Inc.,
431 F.3d 348, 352 (8th Cir. 2005); Bacashihua v. United
States Postal Serv., 859 F.2d 402, 405 (6th Cir. 1988)
(finding that the concern is “not whether the
individual worker actual engaged in interstate commerce, but
whether the class of workers to which the complaining worker
belonged engaged in interstate commerce”); Christie
v. Loomis Armored US, Inc., 2011 WL 6152979, at *3 (D.
Colo. Dec. 9, 2011) (“[A]n employee need not actually
transport goods across state lines to be part of a class of
employees engaged in interstate commerce.”). But
see Magana, 343 F.Supp.3d at 899 (finding exemption did
not apply where plaintiff did “not allege that he ever
crossed state lines as part of his work”). In
Palcko, the plaintiff worked for Airborne, a package
transportation and delivery company engaged in intrastate,
interstate, and international shipping. 372 F.3d at 590. The
plaintiff supervised truck drivers who “delivered
packages from Airborne's facility near the Philadelphia
International Airport to their ultimate destinations in the
Philadelphia area, and picked up packages form customers in
the Philadelphia area and brought them back to Airborne's
facility for shipment.” Id. Nonetheless, the
Third Circuit held that the plaintiff fell within the
residual exemption despite the fact there was no evidence
that any of the drivers whom she supervised delivered
packages across state lines because her work “was so
closely related to interstate and foreign commerce as to be
in practical effect part of it.” Id. at 593.
Lenz, the Eight Circuit provided the follow list of
factors to assist courts in determining whether an employee
fits within the § 1 exemption of the FAA:
[F]irst, whether the employee works in the transportation
industry; second, whether the employee is directly
responsible for transporting the goods in interstate
commerce; third, whether the employee handles goods that
travel interstate; fourth, whether the employee supervises
employees who are themselves transportation workers, such as
truck drivers; fifth, whether, like seamen or railroad
employees, the employee is within a class of employees for
which special arbitration already existed when Congress
enacted the FAA; sixth, whether the vehicle itself is vital
to the commercial enterprise of the employer; seventh,
whether a strike by the employee would disrupt interstate
commerce; and eighth, the nexus that exists between the
employee's job duties and the vehicle the employee uses
in carrying out his duties.
431 F.3d at 352. Here, the Plaintiff clearly works in the
transportation industry and handles goods that travel
interstate. Further, the vehicle Plaintiff uses to deliver
packages is vital to Amazon's commercial enterprise and
central to Plaintiff's job duties.
while courts have held that crossing state lines is not
necessary to apply the exemption, they have also held that
transporting goods intrastate that have previously moved
interstate can be sufficient to apply the exemption. See,
e.g., Nieto v. Fresno Beverage Co. Inc., 33
Cal.App. 5th 274, 284 (2019) (“Nieto's deliveries,
although intrastate, were essentially the last phase of a
continuous journey of the interstate commerce . . . being
transported until reaching its destination(s) to VWB's
customers. Accordingly, as a delivery truck driver for VWB,
Nieto was engaged in interstate commerce through his
participation in the continuation of the movement of
interstate goods to their destinations.”);
Rittmann, 2019 WL 1777725, at *3 (finding last-mile
delivery drivers for Amazon within the residual exemption
because Amazon is in the business of shipping good across
state lines); see also Lenz, 431 F.3d at 352
(instructing courts to consider whether employees handle
goods that travel in interstate). Thus, while last-mile
drivers themselves may not cross state lines, they are
indispensable parts of Amazon's distribution system. That
system, of course, transports goods in interstate commerce.
In the end, Plaintiff's employment, like the plaintiff in
Palcko, is so closely related to interstate commerce
as to be part of it.
addition, courts have considered whether a strike by the
employee would disrupt interstate commerce. See,
e.g., Lenz, 431 F.3d 348, 352. Here, I find
that a strike by last-mile delivery drivers for Amazon would
disrupt interstate commerce. Amazon is the largest online
retailer in the United States, accounting for about half of
the e-commerce market. See Docket No. 34-3.
Accordingly, a strike would almost certainly interrupt
interstate commerce. “A strike by Plaintiffs would be
akin to local UPS or FedEx drivers striking-a strike by UPS
or FedEx drivers, who only personally travel intrastate,
would cause a ripple effect in interstate commerce because
goods travelling interstate would still not make it to their