United States District Court, W.D. Oklahoma
KEVIN BRADSHAW, individually and on behalf of all others similarly situated, Plaintiff,
UBER TECHNOLOGIES, INC. and RASIER, LLC, Defendants.
L.RUSSELL UNITED STATES DISTRICT JUDGE
in this putative class action asserts claims under Oklahoma
and federal law against Uber Technologies, Inc., and Rasier,
LLC, a related entity, referred to collectively by Plaintiff
as “Uber”. Before the Court are Defendants'
Motion for Judgment on the Pleadings (Doc. No. 48) and their
Request for Judicial Notice (Doc. No. 49). The Request for
Judicial Notice drew no opposition from Plaintiff and the
Court therefore grants the request. Plaintiff filed his
opposition to the Motion for Judgment on the Pleadings and
Defendants filed a reply brief in support thereof.
Accordingly, the motion is at issue and ripe for
consideration. Having considered the parties'
submissions, the Court finds as follows.
a ride sharing service. Uber drivers, including Plaintiff,
secure fare riders via Uber's mobile application. As
described by other courts in the context of similar lawsuits,
the application matches a rider with an available Uber driver
in the vicinity and informs the rider of the estimated fare.
If the rider accepts the fare, the available Uber driver is
dispatched to the rider. At the end of the ride, the
passenger completes the transaction by paying Uber through
the mobile application. Uber remits to the driver a
percentage of the fare paid to Uber by the rider, on a weekly
Bradshaw began driving UberX in February 2014, and continues
to do so. Complaint, ¶ 27. Plaintiff contends Uber
misclassifies its drivers as independent contractors rather
than employees, doing so in order to avoid state and federal
requirements regarding minimum wage, overtime compensation,
and expense reimbursement. Plaintiff contends that Uber
controls the drivers' wages, hours, working conditions,
and qualifications, and that it monitors their performance.
An Uber driver is rated by an Uber rider, based on a
five-star rating scale. If an Uber driver fails to maintain a
rating of 4.5 out of 5 stars, the driver is in danger of
deactivation of his Uber account, which prevents the driver
from matching with Uber riders. As a result of the above,
Plaintiff contends that Uber drivers should be considered
employees not independent contractors, and that as a result,
they are entitled to additional compensation.
Bradshaw alleges that on average he drives thirty hours per
week. Id. at ¶ 28. In 2015 Plaintiff contends
he drove 40, 000 miles, grossing $23, 872.00. His net, after
expenses, however was $372.00. Plaintiff alleges he incurred
expenses in the course of driving for Uber, including fuel,
insurance, cleaning, and maintenance costs, for which he was
not reimbursed by Uber. He contends that despite working 1500
hours in 2015 he was not paid overtime for the weeks in which
he worked in excess of 40 hours, nor was his compensation
sufficient to comport with the federal minimum wage
requirement. Plaintiff also complains that Uber falsely
informs riders that a component of the fare is a gratuity for
the driver, and thus tipping is not necessary. Finally,
Plaintiff contends that Uber misled him in its marketing
materials, whereby it guaranteed a person could earn $2000
per week driving Uber. Based on these allegations Plaintiff
alleges eight causes of action, some of which encompass more
than one claim. Specifically he seeks to recover on his
behalf and on behalf of similarly situated persons on
theories that (1) Defendants violated the Oklahoma Minimum
Wage Act and the Oklahoma Administrative Code regarding
payroll records, OAC 380:30-3-3(d); (2) tortious interference
with business relations; (3) breach of two separate
contracts; (4) unjust enrichment; (5) conversion; (6) fraud
and/or intentional or negligent misrepresentations; (7)
promissory estoppel; and (8) violation of the Fair Labor
Standards Act (“FLSA”) because Defendants failed
to pay minimum wage or overtime compensation as required by
federal law. As noted, Defendants seek judgment on the
motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6).”
Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1160 (10th Cir. 2000). And in deciding a
motion to dismiss under Rule 12(b)(6) for failure to state a
claim, the Court considers whether, per the pleading
requirements of Rule 8(a)(2), the complaint contains a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for Deaf
& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(internal quotation omitted). Further, the Court “must
accept all the well-pleaded allegations of the complaint ...
and must construe them in the light most favorable to the
[non-moving party].” Thomas v. Kaven, 765 F.3d
1183, 1190 (10th Cir. 2014).
contend the Court should grant judgment on Count I of the
Complaint because the Oklahoma Minimum Wage Act does not
apply to Defendants, who concede they are covered by the
FLSA. The pertinent statutory language provides:
This act shall not apply to employers subject to the Fair
Labor Standards Act of 1938, as amended, and who are paying
the minimum wage under the provisions of said act, nor to
employers whose employees are exempt under paragraph (e) of
Okla. Stat. tit. 40 § 197.4(d)(footnote omitted). As
indicated by the language of the statute, the question is
two-fold, whether Defendants are subject to the FLSA and if
so, whether it was paying minimum wage.
Defendants concede they are covered by the FLSA, they make no
such concession with regard to Mr. Bradshaw or other Uber
drivers as their employees. Additionally, Plaintiff is
entitled to rely on “[a]lternative theories of
relief” at the pleading stage of litigation. Kaiser
v. Bowlen, 181 F.Supp.2d 1200, 1203 (D. Colo. 2002).
Courtright v. Bd. of County Comm'rs, 2008 WL
2446138 (W.D.Oka. June 13, 2008), upon which Defendants rely,
does not support their contention that regardless of whether
a Plaintiff has pled a minimum wage claim that coverage by
the FLSA precludes a claim under the Oklahoma statute.
Courtright was not, as Defendants argue, factually
indistinguishable from this case, because it was an overtime
case, and Oklahoma law does not mandate overtime pay rates,
unlike the FLSA. Id. at 3 (“Plaintiff does not
allege that his mandatory work requirements resulted in his
being paid less than the minimum wage.”). Accordingly,
because Plaintiff is entitled to rely on alternative
pleading, the relevant issue is whether he has sufficiently
pled a claim for violation of minimum wage under either
Oklahoma law or the FLSA, which will be addressed
next contend judgment in their favor is appropriate on
Plaintiff's claim that they failed to maintain payroll
records because § 380:30-3-3(d) of the Oklahoma
Administrative Code, which sets forth the requirement, does
not authorize a private right of action. Neither the Oklahoma
Minimum Wage Act nor the relevant regulations contain a
provision conferring upon an employee the right to sue an
employer to enforce a payroll records obligation, nor is
there any provision in Oklahoma law permitting an award of
damages in the event proper records are not maintained.
Plaintiff contends, however, that there exists an implied
cause of action. The Court disagrees.
Holbert v. Echeverria, 744 P.2d 960 (Okla. 1987),
superseded on other grounds by statute, the
Court provided a three-part test to determine whether a
statute implies a private right of action:
(1) the plaintiff is one of the class for whose especial
benefit the statute was enacted; (2) some indication of
legislative intent, explicit or implicit, suggests that [the
legislature] wanted to create a private remedy and not to
deny one; [and] (3) implying a remedy for the plaintiff would
be consistent with the underlying purpose of the legislative
Id. at 963 (citing Cort v. Ash, 422 U.S.
66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)). Although
Plaintiff may well be within the class of people for whose
benefit the regulation was enacted, there is simply no
indicia of legislative intent to use the regulation to create
a private remedy with regard to an employer's duty to
maintain records, nor any indication of an appropriate remedy
for such violation. The Court concludes, consistent with
Defendants' contention, that there is no private remedy
for violation of § 380:30-3-3(d), and accordingly,
Defendants are entitled to judgment on this portion of Count
Count II Plaintiff alleges a claim for tortious interference
with business relations by Uber. “Uber interfered with
the continuing business relationship between drivers and
fares─a separate relationship from that between either
Uber and its Drivers or Uber and its riders, and one to which
Uber is not a party─whereby riders would have paid
gratuity to Drivers, including Plaintiffs, absent Uber's
interference.” Complaint ¶ 73. “Were it not
for Uber's misrepresentations regarding gratuities,
riders would have left a tip for drivers as is customary in
the car-service industry. Uber knew that it would be a
benefit accruing to the Drivers at the time it discouraged
tipping by telling passengers tipping is included in the fare
and knew that interference was certain or substantially
certain to occur as a result of its conduct.” Complaint
In order to recover for tortious interference with business
relations, [a plaintiff] must show: (1) it has a business or
contractual right that was interfered with; (2) the
interference was malicious and wrongful, and neither
justified, privileged nor excusable; and (3) damage was
proximately sustained as a result of the interference.
Mac Adjustment, Inc. v. Prop. Loss Research Bureau,
595 P.2d 427, 428 (Okla. 1979).
Integrated Bus. Techs., LLC v. Netlink Sols., LLC,
No. 16-CV-048-TCK-PJC, 2016 WL 4742306, at *5 (N.D. Okla.
Sept. 12, 2016). Although Defendants contend Plaintiff is
required to identify specific third parties' whose
relationships with Defendants were subject to interference,
the Court disagrees. Plaintiff alleges Defendants informed
Uber riders via advertisements and Uber's website that no
gratuity was expected. The reasonable inferences of the
Complaint are that all of the riders who rode with Plaintiff
were informed of and abided by the “no tip
needed” statements Defendants allegedly made. The Court
finds, however, that Plaintiff has failed to allege any facts
to establish a business or contractual right
vis-à-vis the riders with which Defendants interfered.
There are no allegations of a contractual or business right
to a gratuity as required to support the claim for tortious
interference with business relations. As such, the Court
finds that Plaintiff has failed to state a claim for tortious
interference with a contract or business relationship, and
Defendants are entitled to judgment on the pleadings with
regard to Count II.
Count III Plaintiff alleges that Uber has an implied-in-fact
contract with him, as a driver, requiring that it remit all
gratuities as well as to reimburse him for expenses.
Complaint ¶ 86. Plaintiff further asserts that Uber
drivers are third-party beneficiaries of the implied contract
between Uber and its riders related to gratuity. Plaintiff
contends that the implied contract between Uber and Uber
riders requires Uber to remit tips to the drivers. Plaintiff
contends “the terms of [the implied contract] were
incorporated by reference from certain advertisements or
statements Uber made on various webpages.” Id.
at ¶ 87. Defendants seek dismissal of each claim for
breach of implied contract, asserting that the Complaint
fails to allege sufficient facts, in part because there is an
express contract between drivers and Uber, thereby precluding
creation of an implied-in-fact contract.
A contract is an agreement to do or not to do a certain
thing. Okla. Stat. tit. 15, § 1. It is essential to the
existence of a contract that there should be: (1) parties
capable of contracting; (2) their consent; (3) a lawful
object; and (4) sufficient cause or consideration. Okla.
Stat. tit. 15, § 2. A contract's terms must be
reasonably certain as to establish an enforceable contract.
Heldenbrand v. Stevenson, 249 F.2d 424, 427 (10th
Cir.1957). Title 15 also provides that a contract is either
expressed or implied. Okla. Stat. tit. 15, § 133 The
existence and terms of an implied contract are manifested by
conduct. Wattie Wolfe Co. v. Superior Contractors,
Inc. 417 P.2d 302, 308 (Okla.1966).The implied in fact
doctrine applies only when there is no tangible evidence from
which to determine whether in fact an agreement exists.
Watkins v. Watkins, 177 P.3d 1114, 1118 (Okla.2007).
The Court in such situations is compelled to resort to the
conduct of the parties. Contracts implied in fact arise where
the intent of the parties is not expressed. Ray F.
Fischer Co. v. Loeffler-Green Supply Co., 289 P.2d 139
(Okla.1955). However, an express or written contract excludes
the possibility of an implied contract of a different or
contradictory nature. Fox v. Cities Serv. Oil Co.,
201 Okla. 17, 200 P.2d 398, 400 (1948).
Advance Food Co. v. Nebraska Beef, Ltd., No.
CIV-08-1139-M, 2009 WL 3698472, at *2 (W.D. Okla. Nov. ...