Mickey Dilts v. Penske Logistics LLC

Opinion by

concurring:

I write separately to emphasize several aspects of this case. As the Majority notes, Penske bears the burden of proof on its preemption defense. See supra at 649. But Penske did not offer specific evidence of (for example) the actual effects of the California law on Penske’s own routes or services. Instead, Penske relied on a general hypothetical likelihood that a Penske delivery driver, with limited flexibility in traveling from point A to point B, is further restricted to certain routes that would allow a driver to park his or her truck and enter “off-duty” status.

Penske failed to carry its burden. I consequently express no opinion, for example, that the possibility a “driver [must] briefly pull on and off the road during the *651 course of travel does not meaningfully interfere with a motor carrier’s ability to select its starting points, destinations, and routes.” Id. (emphases added). Maybe so. Maybe not.

Further, the Majority incorrectly posits that Defendants are at liberty to schedule as they choose, tempered only by hiring more drivers and staggering breaks. Customer demands and practicalities must also be considered. As in air and train transportation,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICKEY LEE DILTS; RAY RIOS; and No. 12-55705 DONNY DUSHAJ, on behalf of themselves and all others similarly D.C. No. situated, 3:08-cv-00318- Plaintiffs-Appellants, CAB-BLM

v.

OPINION

PENSKE LOGISTICS, LLC; and PENSKE TRUCK LEASING CO., L.P., a Delaware corporation, Defendants-Appellees,

and

DOES 1–125, inclusive, Defendants.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted March 3, 2014—Pasadena, California

Filed July 9, 2014 DILTS V. PENSKE LOGISTICS, INC.

Before: Alex Kozinski, Chief Judge, Susan P. Graber, Circuit Judge, and Jack Zouhary,* District Judge.

Opinion by Judge Graber; Concurrence by Judge Zouhary

SUMMARY**

Federal Preemption

The panel reversed the district court’s dismissal, based on federal preemption, of claims brought by a certified class of drivers alleging violations of California’s meal and rest break laws.

The panel held that California’s meal and rest break laws as applied to the motor carrier…