Case: 1:14-cv-07858 Document #: 172 Filed: 03/28/16 Page 1 of 6 PageID #:1249

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID M. JOHNSON,
)
PLAINTIFF,
) NO. 1:14-cv-07858
-VS)
)
MELTON TRUCK LINES, INC., ROBERT
)
A. PETERSON, MICHAEL DARGEL,
) Judge John J. Tharp
RAMONA WILLIAMS, MELTON TRUCK
)
LINES, INC. OCCUPATIONAL INJURY
)
BENEFIT PLAN, ROBERT ROGAN,
)
GREAT WEST CASUALTY COMPANY,
)
TANYA JENSEN, BLANE J. BRUMMOND
)
and Unknown Defendants,
)
DEFENDANTS.
) **JURY DEMANDED**
PLAINTIFFS REQUEST FOR JUDICIAL NOTICE, AND OBJECTIONS TO THE ORDER
REGARDING THE APPOINTMENT OF A STATISTICAN AS AN EXPERT PURSUANT
TO RULE 706 OF THE FEDERAL RULES
Pursuant to Rule 201 of the Federal Rules of Evidence, Plaintiff David Johnson
requests that the Court take judicial notice of Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. __
(2016), a case in which the Supreme Court held that plaintiffs can use statistical methods to
calculate damages, and he hereby objects to the 12(b)(6) motion by Defendants Melton
Truck Lines, Inc., Robert A. Peterson, Michael Dargel, Ramona Williams, Melton Truck
Lines, Inc. Occupational Injury Benefit Plan, Robert Rogan (collectively Defendants or
Defendant Melton) for the reasons as set forth herein. Defendant Meltons purported
12(b)(6) motion does not advance the litigation and therefore judicial economy warrants
addressing it (if appropriate) after the ruling on the pending motion for transfer.
1.

Plaintiff objects to the jurisdiction of the district court over Defendant

Meltons purported 12(b)(6) motion1 because it requires the Court to usurp the role of the
jury guaranteed by the Seventh Amendment including but not limited to: (a) Defendant
1

See e.g., Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 725 (5th Cir. 1961).

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Meltons motion has raised a question of fact, i.e., as to its claim of superiority in that the
gap between in wages actual paid by Melton of approximately $7per hour verses $50 per
hour at a competitor, i.e., Fedex, notwithstanding the damages authorized by federal law(s)
must be resolved by the jury; 2 (b) the actual hours worked and unpaid by Defendants is a
question of fact for determination by the jury; and (c) the gap between the wages (un)paid
by Defendant Meltons and market value is a question of fact for the jury.

I.

INTRODUCTION

Plaintiff who is the master3 of and in his Complaint did not seek to recover any
minimum wage or overtime in that as it is generally understood by Defendants that Drivers
are not paid any overtime and thus the motion is frivolous. The Supreme Court4 has
recently ruled against Tyson Foods5 an employer who failed to pay its employees for all
time worked similar to Defendants and it was held that plaintiffs can use statistical evidence
to estimate the unpaid wages. Thus, the district court should appoint a statistician to assist it
with regard to understanding the damages complained of by Plaintiff in this case.

II. STATEMENT OF UNDISPUTED MATERIAL FACTS

Plaintiff hereby pursuant to Rule 10(c) of the Federal Rules of Civil Procedure
incorporates and refers to the statement of facts as stated in Plaintiffs Verified Second
Amended Complaint. Defendant Meltons corporate website claims that the Average
Driver earns only $50,000 annually at a piece mill rate of approximately 40 per mile. The
52 weeks of work published by the United States Bureau of Labor Statistics (BOL) are
appropriate for use in determining unpaid hours worked by Plaintiff; and the statements
2

Feltner v. Columbia Pictures Tel. 523 U.S. 340, 353 (holding that as the general rule monetary
relief is legal, and an award of statutory damages may serve purposes traditionally associated with
legal relief).
Cf., Of course the party who brings a suit is master to decide what law he will rely upon and
therefore does determine whether he will bring a suit arising under [any] law of the United
States by his declaration or bill. Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410,
57 L. Ed. 716, 1913 Dec. Commr Pat. 530 (1913). (Holmes, J.).
3

The U.S. Supreme Court has itself made clear that the lower courts are bound by summary
decisions by [the Supreme] Court until such time as the Court informs [them] that [they] are not.
Hicks v. Miranda, 422 U.S. 332, 345 (1974).
5

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. __ (2016).

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from Defendant Meltons corporate website are all facts for Judicial Notice pursuant to Rule
201(b)(2) of the Federal Rules of Evidence.

LEGAL STANDARD
Judicial notice is taken of case law, rules, rules, amendments to the United States
Constitution, of federal statutes, and of federal executive and departmental regulations. See,
e.g., United States v. Chambers, 291 U.S. 217, 222 (1934); Beadnell v. United States, 303
F.2d 87, 89 (9th Cir. 1962); Leonard v. United States, 18 F.2d 208, 212 (6th Cir. 1927);
Marrash v. United States, 168 Fed. 225, 230 (2d Cir, 1909); United States v. Grady, 225
F.2d 410, 415 (7th Cir. 1955); United States v. Monarch Distrib. Co., 116 F.2d 11, 13 (7th
Cir. 1940), cert. denied, 312 U.S. 695 (1941). Judicial notice may be taken of matters
which are either so commonly known within the community as to be indisputable among
reasonable men, or which are capable of certain verification through recourse to reliable
authority. United States v. Mendell, 447 F.2d 639, 641 (7th Cir. 1971), cert. denied, 404
U.S. 991 (1971); E.I. du Pont de Nemours & Co. Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.
1986). The Courts have also regularly taken notice of fact information from internet
publications. See e.g., OToole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir.
2007).
The Courts over a century ago have rejected Defendants failed attempts to invoke
the jurisdiction under Article III, Section II of the Constitution and 28 U.S.C. 1331 over
their purported motions pertaining to Plaintiffs right to sue on his federal rights as it is the
clearly established law that a defendant(s) may not make any point which requires the
construction of an act of Congress. He may rest his defence exclusively on the fact that he
has not violated the right of the plaintiff. That this fact becomes the sole question made in
the cause cannot oust the jurisdiction of the Court, or establish the position that the case
does not arise under a law of the United States. Osborn v. Bank of the United States, 22
U.S. (9 Wheat.) 738, 826 (1824). Thus, Plaintiff has properly invoked the jurisdiction of the
Court to vindicate his federal rights against these Defendants and they have failed to oust it.
Accordingly, Plaintiff objects to the jurisdiction of the Court over Defendant Meltons
motion and any matters not contained in the original brief filed by Defendants.

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Defendant Melton seeks to dismiss Plaintiffs Lanham Acts False Advertising Claim,
as well as, another special exemption from payment of the unpaid Wages for all time
worked, which is clearly recoverable under the Federal Labor Standards Act (FLSA).
The legislative history of the Portal-to-Portal Act and decisions construing it in conjunction
with the FLSA make clear that the terms principal activity or activities, which must be
paid for, are to be read liberally. Any activity which is an integral and indispensable part
of the principal activity is compensable. Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct.
330, 335, 100 L.Ed. 267 (1956). The only activities excluded from FLSA coverage are
those undertaken for [the employees] own convenience, not being required by the
employer and not being necessary for the performance of their duties for the employer.
Dunlop v. City Electric, Inc., 527 F.2d 394, 398 (5th Cir. 1976). Barrentine v. ArkansasBest Freight System, 750 F.2d 47, 50 (8th Cir. 1984).
Rule 706 of the Federal Rules of Evidence states: On a partys motion or on its own,
the court may order the parties to show cause why expert witnesses should not be appointed
and may ask the parties to submit nominations. The court may appoint any expert that the
parties agree on and any of its own choosing. FED.R.EVID. 706, see also In re High
Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th Cir. 2002)(stating that
turning to the technical statistical evidence . . . inferences drawn from them by the use of
statistical methodology . . . we recommend that the district judge use the power that Rule
706 of the Federal Rules of Evidence expressly confers upon him to appoint his own expert
witness, rather than leave himself and the jury completely at the mercy of the parties
warring experts); General Electric Co. v Joiner, 522 U.S. 136, 149-50 (Breyer, J.
concurring)(stating that the use of a court-appointed expert pursuant to Rule 706 in
conducting the Daubert gatekeeping is one of the various Rules-authorized methods for
facilitating the courts task); Indianapolis Colts, Inc. v. Metropolitan Baltimore Football
Club, Ltd. Partnership, 34 F. 410, 414-15 (7th Cir. 1994). Accordingly, Plaintiff objects to
the reckless and untrue statements by Defendants as to the damages calculated as set forth
below.

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ANALYSIS
Melton Truck Lines, Inc.
Schedule of Loss
For the period ending December 31, 2015
Description
Melton's Drive Time Wages Hourly CPM:
Melton's "Trip Planning/En Route" (MPH)(See Ftn.1)
Melton's CPM (See Ftn. 2)
Melton's Drive Time Wages Hourly
Melton's Non-Drive Time Hourly:
Melton's Non-Drive Time Wages Hourly (See Ftn. 2)
Melton Driver's Avg Hourly Rate of Basic Pay
Schedule of Annual Hours (70hours x 52weeks)(See Ftn. 3)
Estimate Annual Driver Pay
Less: Melton's Annual Salary Paid (See Ftn. 2)
Driver Unpaid Wages (Diff)
#Employees (See Ftn. 4)
Total Loss

12/31/2010

12/31/2011

12/31/2012

12/31/2013

12/31/2014

12/31/2015

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.43
$21.50

$25.00
$22.50
3,640
$81,900.00
)50,000.00(
$31,900.00
1,000
$31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
$31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
$31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
$31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
$31,900,000.00

$25.00
$23.25
3,640
$84,630.00
(60,000.00)
$24,630.00
1,047
$25,787,610.00

References:
1. Insurance Institute for Highway Safety (IIHS) and State Highway Safety Offices.
2. https://meltontruck.com/drivers.php
3. http://www.bls.gov/opub/mlr/cwc/work-schedules-in-the-national-compensation-survey.pdf and https://www.fmcsa.dot.gov/regulations/title49/section/395.3
4. http://safer.fmcsa.dot.gov

Plaintiff objects to the jurisdiction of the district court to over Defendants motion that requires it
determine the damages suffered by Plaintiff, notwithstanding a statistician appointed to assist the
Court and jury on understanding the statistics in this case.
Here, Plaintiff has made specific factual allegations that no study has established to
substantiated Defendant Meltons claims of high pay due to the failure to pay its drivers
for all time worked at a rate of approximately 24.55 hours (35%) said wages in fact at only
$7 per hour or less are inferior. Defendant Meltons only defence is that it did not violate
Plaintiffs federal rights according to the clearly established law since the Osborn case.
Defendant Meltons version of the facts is once again based upon no agreement,
understanding, or the likewise pertaining to the unpaid Wages that remain unpaid in the
possession of Defendants. Moreover, defense counsel Mr. Vogel cannot come forward with
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any rational explanation why Plaintiff would entertain the payment of minimum Wages or
overtime in light of the statistics by the BOL and the Wages paid by other competitors.
Accordingly, the Court should take Judicial Notice of the Tyson case that affords to Plaintiff
the use of statistical evidence to estimate the unpaid wages in fact warranting the
appointment of a statistician over any objections and the motion by Defendants.
Respectfully submitted this March 28, 2016.
BY:__________/s/________________________
DAVID JOHNSON
David Johnson
901 East 56th Street, 1C
Brooklyn, NY 11234
718-251-6063

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