Cervenka v. Jumpp Logistics, LLC et al

1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

KEVIN CERVENKA, individually
and on behalf of all others similarly
situated

v.

JUMPP LOGISTICS, LLC, ET AL.
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CIVIL NO. 4:21-CV-813-SDJ
MEMORANDUM OPINION AND ORDER
This is a proposed collective action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. Before the Court is Named Plaintiff Kevin
Cervenka’s Motion for Court-Authorized Notice. (Dkt. #30). Cervenka asks that the
Court authorize notice of this collective action to a group of potential opt-in plaintiffs.
(Dkt. #30 at 2). Defendants Jumpp Logistics, LLC and Couch Goat Quandary, LLC
oppose the motion. (Dkt. #31). Having considered the motion, Defendants’ response,
and the applicable law, the Court will deny the motion.
I.
BACKGROUND
Defendants Jumpp Logistics, LLC and Couch Goat Quandary, LLC
1
are in the
business of coordinating deliveries of goods between their clients and those clients’
customers. (Dkt. #31 at 3). When a client contacts Defendants with a delivery request,
Defendants’ “dispatchers” send the delivery request via a software program to
independently contracted “couriers” (i.e., delivery drivers), who can choose to accept
or reject the delivery. (Dkt. #31 at 3). When a courier rejects a delivery, the dispatcher

1
Jumpp Logistics, LLC is the parent company of Couch Goat Quandary, LLC.
(Dkt. #31 at 3).
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proposes the delivery to different couriers until one accepts the request and makes
the delivery. (Dkt. #31 at 3). Couriers use their own vehicles to make deliveries,
(Dkt. #30 at 8), and pay for their own gas, insurance, and maintenance, (Dkt. #31
at 5). Couriers are paid on a per-delivery or “piece-rate” basis, based in part on
distance traveled—regardless of hours worked or time spent making deliveries.
(Dkt. #30 at 8–9); (Dkt. #30-1 at 15).
Named Plaintiff Kevin Cervenka worked for Defendants as a courier for one
year. (Dkt. #1 ¶ 32). Cervenka alleges that Defendants misclassified him and its other
couriers as independent contractors, instead of non-exempt employees, and failed to
pay overtime compensation as required by the FLSA. (Dkt. #1 ¶¶ 1, 6). Cervenka sued
Defendants on behalf of “similarly situated” couriers, and now asks that the Court
authorize notice of this collective action to the following group of couriers:
All individuals who worked for Defendants as delivery drivers in Texas,
were classified as independent contractors, and compensated via a piece-
rate compensation structure within the three-year period preceding the
filing of this lawsuit.
(Dkt. #30 at 2).
In support of his motion for court-authorized notice, Cervenka identifies
several employment characteristics common to all of Defendants’ couriers. All
couriers were recruited to fill the same job position with the same job description and
qualifications. (Dkt. #30 at 7). All couriers signed the same “independent contractor”
agreement, went through the same onboarding process, and were assigned a driver
number. (Dkt. #30 at 6–7). Once onboarded, all couriers received work instructions
from the same dispatchers, used their own vehicles to make deliveries, and received
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“driver settlement” reports memorializing their completed deliveries and
compensation. (Dkt. #30 at 8–9). And most importantly, all couriers were classified
as independent contractors and paid pursuant to the same compensation policy—on
a per-delivery basis, regardless of hours worked. (Dkt. #30 at 8–9).
In response, Defendants argue that their couriers—or at least the subset of
couriers Cervenka seeks to notify—are not “similarly situated” in several important
respects. First, couriers do not work similar hours. “Couriers have the discretion to
work only for specific customers or in specific regions and have the option to accept
or reject deliveries at their own sole discretion.” (Dkt. #31 at 6). Thus, “[c] ouriers at
their individual election can treat the relationship with Defendants as a reliable
source of pocket change or as a significant source of income.” (Dkt. #31 at 6–7). Some
work a significant number of hours each week; others just a few. Second, the length
of couriers’ relationships with Defendants varies widely from courier to courier.
“While one Courier may have a short-term relationship with Defendants spanning a
single two-week settlement period, another Courier may perform deliveries over
multiple years.” (Dkt. #31 at 6).
Third, Defendants dispute that all couriers were required to “sign the same
‘independent contractor’ agreement.” (Dkt. #31 at 11) (quoting (Dkt. #30 at 7)). For
starters, neither party has identified or produced Cervenka’s particular contract. In
fact, “the available evidence reflects that [Cervenka] did not sign the written
independent contractor agreement that the majority of Defendants’ Couriers
executed.” (Dkt. #31 at 11). Even among couriers who signed written agreements,
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those agreements differed in important respects. Some agreements included
arbitration provisions; others did not. See (Dkt. #31 at 11–12). And some couriers,
rather than directly contracting with Defendants, contracted with Defendants via a
limited liability company or other separate legal entity. (Dkt. #31 at 10). For these
reasons, Defendants contend that members of the proposed collective are not
similarly situated and that this case should not proceed as a collective action.
2

II. LEGAL STANDARD
“The FLSA requires employers to pay employees at least one-and-one-half
times the regular hourly rate for hours worked in excess of forty hours per week.”
Hobbs v. Petroplex Pipe & Constr., Inc., 946 F.3d 824, 829 (5th Cir. 2020) (citing
29 U.S.C. § 207(a)(1)). Employers who violate the overtime-pay requirement are
liable to the affected employee(s) in the amount of their unpaid overtime
compensation and an additional equal amount as liquidated damages. 29 U.S.C.
§ 216(b). “The FLSA permits employees to bring an overtime action individually or,
alternatively, as a collective action on behalf of a group of ‘similarly situated’
employees.” Aghatise v. Royal Guards Sol. LLC, No. 4:24-CV-102, 2025 WL 964226,
at *2 (E.D. Tex. Mar. 31, 2025) (citing 29 U.S.C. § 216(b)). But it does not define
“similarly situated.” See 29 U.S.C. § 216(b). “Accordingly, it is up to the district court
to define the contours of the term ‘similarly situated’ as it determines who may be
included in a collective action.” Aghatise, 2025 WL 964226, at *2.

2
Cervenka did not file a reply to Defendants’ response, despite being granted two
extensions of time to do so. See (Dkt. #33, #36).
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District courts must determine whether putative plaintiffs are similarly
situated “at the outset of litigation, before notice is sent to potential opt-ins.” Swales
v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 433 (5th Cir. 2021). “Only then can the
district court determine whether the requested opt-in notice will go to those who are
actually similar to the named plaintiffs.” Id. at 434. The Supreme Court and Fifth
Circuit have cautioned district courts not to “stir up litigation” by authorizing notice
to “those who cannot ultimately participate in the collective” action. Id. at 441
(cleaned up). Instead, “the district court’s job is ensuring that notice goes out to those
who are ‘similarly situated,’ in a way that scrupulously avoids endorsing the merits
of the case.” Id. at 440.
In determining whether putative plaintiffs are similarly situated, the relevant
inquiry is “whether merits questions can be answered collectively.” Id. at 442. Courts
in the Fifth Circuit typically consider three factors (the “Lusardi factors”) to make
this determination: (1) the disparate factual and employment settings of the proposed
plaintiffs; (2) the various defenses available to the defendant which appear to be
individual to each proposed plaintiff; and (3) fairness and procedural considerations.
See Fuller v. Jumpstar Enters., LLC, No. CV H-20-1027, 2021 WL 5771935, at *3
(S.D. Tex. Dec. 6, 2021) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J.
1987)); Loy v. Rehab Synergies, L.L.C., 71 F.4th 329, 336–37 (5th Cir. 2023) (“While
Swales rejected Lusardi’s two-step method of ‘conditional certification’ and notice
followed by a motion to decertify, courts may still find it useful to consider the Lusardi
factors to help inform or guide the similarly situated analysis[.]”). Plaintiffs have the
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burden of showing that the proposed collective members are similarly situated.
Fuller, 2021 WL 5771935, at *3.
“After considering all available evidence, the district court may conclude that
the Plaintiffs and Opt-ins are too diverse a group to be ‘similarly situated’ for
purposes of answering [merits questions], or at least that Plaintiffs have not met their
burden of establishing similarity.” Swales, 985 F.3d at 443. Put differently, the
district court may conclude that answering merits questions would “require a highly
individualized inquiry into each potential opt-in’s circumstances” such that “the
collective action would quickly devolve into a cacophony of individual actions.” Id.
at 442 (cleaned up). If that is the case, the district court—exercising its “broad,
litigation-management discretion”—may decide that the case cannot proceed on a
collective basis. Id. at 443.
III.
DISCUSSION
To resolve this motion, the Court must ultimately determine whether
Cervenka and the proposed collective are similarly situated “for purposes of
answering [merits questions.]” Swales, 985 F.3d at 443. Thus, as an initial matter,
the Court must determine what the relevant merits questions are.
The natural starting point for identifying merits questions is the elements of
the plaintiff’s cause of action. See Valdery-Hughes v. Care & Dev. Ctr., Inc., No. CV
24-1708, 2025 WL 1068258, at *3–4 (E.D. La. Apr. 9, 2025). To succeed on an FLSA
overtime-pay claim, a plaintiff must prove: (1) that there existed an employer–
employee relationship during the unpaid overtime periods claimed; (2) that the
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employee engaged in activities within the coverage of the FLSA; (3) that the employer
violated the FLSA’s overtime wage requirements; and (4) the amount of overtime
compensation due. Gray v. Killick Grp., L.L.C., 113 F.4th 543, 549 (5th Cir. 2024).
Per the first element, the FLSA only covers “employees”—not independent
contractors. Hobbs, 946 F.3d at 829. The Fifth Circuit uses the “economic-realities
test” to decide whether an individual is an employee or independent contractor. That
test asks whether “as a matter of economic reality, the worker is economically
dependent upon the alleged employer or is instead in business for himself.” Gray, 113
F.4th at 549 (cleaned up). Courts consider five factors in making that determination:
(1) the degree of control exercised by the alleged employer; (2) the extent of the
relative investments of the worker and the alleged employer; (3) the degree to which
the worker’s opportunity for profit or loss is determined by the alleged employer;
(4) the skill and initiative required in performing the job; and (5) the permanency of
the relationship. Id.
A review of the pleadings in this case indicates that two merits questions will
be particularly relevant: First, were collective members properly classified as
independent contractors such that they are exempt from the FLSA’s overtime-pay
requirement? That is, did an employer–employee relationship exist between
Defendants and collective members? Compare (Dkt. #1 ¶ 1) (alleging that collective
members “were all misclassified by Defendants as independent contractors, instead
of non-exempt employees”), with (Dkt. #6 ¶ 7) (alleging that collective members “were
not employees of Defendants, instead being independent contractors”). Second, did
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collective members work more than 40 hours in a single week such that they are
entitled to overtime compensation? Compare (Dkt. #1 ¶ 36) (alleging that collective
members “worked between forty (40) and fifty (50) hours a week and would even work
as many as sixty (60) hours in a single workweek”), with (Dkt. #6 ¶ 36) (denying that
collective members worked more than 40 hours a week).
Having determined the relevant merits questions at issue here, the Court now
considers whether the proposed collective members are similarly situated. To guide
that inquiry, the Court structures its discussion around the three Lusardi factors.
A. Disparate Factual and Employment Settings
The first factor is “the disparate factual and employment settings of the
proposed plaintiffs.” Fuller, 2021 WL 5771935, at *3 (cleaned up). Here, members of
the proposed collective are dissimilar in three important respects—all of which are
relevant to answering merits questions: First, their weekly hours vary widely; second,
their contractual arrangements with Defendants differ; and third, the length and
exclusivity of their working relationships with Defendants vary. The Court discusses
each dissimilarity below and explains how that dissimilarity precludes collective
determination of the merits.
i. Hours
The central merits question in any FLSA overtime-pay case is simple: How
many hours did the plaintiff work for the defendant? Only after determining the
plaintiff’s hours can a court or jury determine whether the plaintiff is entitled to
recover overtime wages and the total amount of overtime wages due. Valdery-Hughes,
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2025 WL 1068258, at *6 (explaining that the third and fourth elements of an FLSA
overtime-pay claim “require plaintiff to establish the number of hours that plaintiff
worked”). At the notice stage, then, the question is whether putative plaintiffs’ hours
can be determined on a collective basis. Named plaintiffs must therefore “put forth
some evidence that [they] and the proposed class members are similarly situated . . .
in their work hours.” Fuller, 2021 WL 5771935, at *7.
Courts in the Fifth Circuit consistently refuse to authorize notice of collective
actions where (1) members of the proposed collective did not work similar hours and
(2) calculating members’ hours would require individualized, fact-intensive
determinations. See id. at *7 (refusing to authorize notice where “[i]ndividual
testimony would be needed from each driver to clarify if, and when, they worked
overtime”); Valdery-Hughes, 2025 WL 1068258, at *6 (concluding that “certification
would be inappropriate in light of the highly individualized determinations required
to compute the hours worked by [proposed collective members]”).
Here, Cervenka has not shown that he and the proposed collective members
are similarly situated in their work hours. In fact, the evidence suggests the opposite.
Couriers may accept or reject deliveries at their sole discretion, so hours vary widely
from courier to courier. See (Dkt. #31 at 6–7). Additionally, Cervenka has presented
no evidence that all or any members of the proposed collective worked more than 40
hours a week, and he makes no attempt to exclude from the collective couriers who
never worked more than 40 hours in a week. See (Dkt. #30 at 2) (proposed collective
includes “all” couriers, regardless of hours worked). Thus, Cervenka has not shown
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to any degree of certainty that members of the proposed collective have valid claims.
Were the Court to grant Cervenka’s motion, it would be doing precisely what the Fifth
Circuit and Supreme Court forbid: stirring up litigation by authorizing notice to those
who cannot ultimately participate in the collective action. See Swales, 985 F.3d at 441
(citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174, 110 S.Ct. 482,
107 L.Ed.2d 480 (1989)); see also Lorenzo v. ZF Collective, LLC, No. 4:24-CV-03881,
2025 WL 3491635, at *3 (S.D. Tex. July 15, 2025) (refusing to authorize notice where
“the record [was] devoid of evidence that the Putative Collective Members worked
overtime”).
The evidence also suggests that couriers’ hours are not easily calculable,
making this merits question particularly unsuited for collective determination.
Because couriers are not paid by the hour, it appears that couriers do not track or log
their hours with any precision. Defendants’ brief suggests that a courier’s hours could
be pieced together via delivery records—e.g., using packages’ pick-up and drop-off
times—but that method is fraught with uncertainty and would likely invite
individualized disputes. See (Dkt. #31 at 9–10) (attempting to calculate couriers’
hours using pick-up and drop-off times). For example, what if a courier made a
personal trip, outside the scope of his duties, after picking up a package but before
delivering it? Calculating that courier’s hours “may well require litigation over . . .
whether [the courier] was authorized to take a particular trip or was acting within
the scope of their duties in doing so, and how much time must be deducted for a trip.”
Valdery-Hughes, 2025 WL 1068258, at *6. “Such a coil of individualized
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determinations ‘would quickly devolve into a cacophony of individual actions’ that
would defeat the purpose of [the] collective action mechanism.” Id. (quoting Swales,
985 F.3d at 442).
ii. Contractual Arrangements
Members of the proposed collective are also dissimilar with respect to their
contractual arrangements with Defendants. Cervenka alleges that all couriers “sign
the same ‘independent contractor’ agreement,” (Dkt. #30 at 7), but that appears not
to be true. Indeed, Cervenka has failed to produce his own alleged written agreement.
According to Defendants, “the available evidence reflects that [Cervenka] did not sign
the written independent contractor agreement that the majority of Defendants’
Couriers executed.” (Dkt. #31 at 11); (Dkt. #31-1 ¶ 9) (declaration of Defendants’
representative stating that “[n]o Independent Contractor Agreement for Kevin
Cervenka can be found”). Even among couriers who signed written agreements, those
agreements differed in important respects. Some agreements included arbitration
provisions; others did not. See (Dkt. #31 at 11–12). And some couriers, rather than
directly contracting with Defendants, contracted with Defendants via a limited
liability company or other separate legal entity. (Dkt. #31 at 10).
This lack of uniformity in couriers’ contractual arrangements precludes
collective determination of the merits. Couriers with valid arbitration agreements,
for example, are not similarly situated to those without such agreements. That is
because a valid arbitration agreement “bars an employee from bringing a lawsuit” or
joining a collective action. Swales, 985 F.3d at 441. Thus, individuals with valid
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arbitration agreements are “not potential participants of [an] FLSA collective action,”
id. at 440, and “district courts may not send notice” to those individuals, In re
JPMorgan Chase & Co., 916 F.3d 494, 501 (5th Cir. 2019). Because it appears that
some (but not all) members of Cervenka’s proposed collective are subject to valid
arbitration agreements, the Court cannot authorize notice to that collective.
Couriers’ contracts implicate other merits issues, too. For example, a courier’s
contract, though not dispositive of independent-contractor status, is relevant to that
inquiry. See, e.g., Haskett v. Percheron, LLC, No. CV G-14-257, 2016 WL 1054396,
at *4 (S.D. Tex. Mar. 9, 2016) (analyzing the terms of plaintiff’s contract in
determining whether plaintiff was properly classified as an independent contractor).
That is, the substance of a courier’s contract may indicate whether “as a matter of
economic reality, [he] is economically dependent upon the alleged employer or is
instead in business for himself.” Gray, 113 F.4th at 549 (cleaned up). For instance,
the “Independent Contractor Agreement” attached to Cervenka’s motion speaks
directly to the second element of the economic-realities test—“the extent of the
relative investments of the worker and the alleged employer.” Id. (cleaned up). It
provides that couriers “shall supply, at [their] sole expense, all equipment, vehicles,
tools, materials and/or supplies” necessary for the job. (Dkt. #30-5 ¶ 8). Should a
courier use any of Defendants’ materials or supplies, Defendants may deduct “the
appropriate charges” from the courier’s compensation. (Dkt. #30-5 ¶ 8). The
agreement also provides that couriers are not eligible for any pension, health, or other
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benefit plans, (Dkt. #30-5 ¶ 4), and must maintain their own insurance, (Dkt. #30-5
¶ 2).
In sum, couriers’ contracts are relevant to the merits of this case. Because those
contracts were not uniform—and some couriers did not have written contracts at all—
the proposed collective is not similarly situated for purposes of answering merits
questions.
iii. Length and Exclusivity of Relationships
Finally, members of the proposed collective are dissimilar with respect to the
length and exclusivity of their working relationships with Defendants. Some couriers
work for Defendants for many years; others for just a few weeks. See (Dkt. #31 at 6).
The evidence also suggests that couriers are free to work for other companies while
working for Defendants. See (Dkt. #31-3 at 15). So some couriers work exclusively for
Defendants, while others don’t.
The length and exclusivity of a courier’s relationship with Defendants is
relevant to the first element of an FLSA overtime-pay claim—that plaintiff is an
employee, rather than an independent contractor. As explained above, the economic-
realities test governs that inquiry. It asks whether “as a matter of economic reality,
the worker is economically dependent upon the alleged employer or is instead in
business for himself.” Gray, 113 F.4th at 549 (cleaned up). The fifth factor of that test
looks to “the permanency of the relationship” between the worker and alleged
employer. Id. (cleaned up). In evaluating this factor, courts consider (1) whether a
plaintiff worked exclusively for defendant; (2) the total length of the relationship
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between the plaintiff and defendant; and (3) whether the work was on a project-by-
project basis. Brunet v. GB Premium Octg Servs. LLC, No. 4:21-CV-1600, 2022 WL
17730576, at *9 (S.D. Tex. Dec. 1, 2022), report and recommendation adopted sub
nom. Brunet v. GB Premium OCTC Servs., LLC, No. 4:21-CV-01600, 2023 WL
2186441 (S.D. Tex. Feb. 22, 2023).
Members of the proposed collective are not similarly situated for purposes of
answering these questions. The evidence here suggests that some couriers worked
exclusively for Defendants, while others didn’t. The evidence also suggests that the
total length of couriers’ relationships with Defendants varied widely from courier to
courier. Thus, the economic-realities test cannot be applied on a collective basis.
This conclusion is consistent with the weight of authority. In Swales, the Fifth
Circuit acknowledged that “the individualized nature of the economic-realities test is
why misclassification cases rarely make it to trial on a collective basis.” 985 F.3d
at 442. Accordingly, district courts post-Swales rarely allow misclassification cases to
proceed on a collective basis. See, e.g., Valdery-Hughes, 2025 WL 1068258, at *5
(“[T]his lawsuit is not the rare misclassification case that may be resolved on a
collective basis.”).
B. Defenses Available to the Defendants
The second Lusardi factor is “the various defenses available to the defendant
which appear to be individual to each proposed plaintiff.” Fuller, 2021 WL 5771935,
at *3 (cleaned up). Defendants’ primary defense is that they properly classified their
couriers as independent contractors, which are not subject to the FLSA’s overtime-
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pay requirement. As explained above, supra Part III.A.ii. –iii., determining whether
couriers were properly classified as independent contractors would require
individualized inquiries into each courier’s circumstances. Thus, this factor weighs
against proceeding on a collective basis.
C. Fairness and Procedural Considerations
The final Lusardi factor is “fairness and procedural considerations.” Fuller,
2021 WL 5771935, at *3 (cleaned up). Because this case requires individualized
inquiries into each courier’s circumstances, “there is no efficiency gained by trying all
factual questions and defenses in a single trial.” Brunet, 2022 WL 17730576, at *10.
Thus, this factor weighs against proceeding on a collective basis.
* * *
For these reasons, the Court finds that Cervenka has not met his burden of
establishing that members of the proposed collective are similarly situated. The
question remains, however, whether the Court should deny Cervenka’s motion
without prejudice, and authorize further discovery, or deny the motion with prejudice.
District courts may authorize “further discovery” where necessary to determine
whether members of the proposed collective are similarly situated. See Swales,
985 F.3d at 443.
The Court finds that further discovery is not warranted here. Cervenka has
already deposed Defendants’ representatives, (Dkt. #30-1, #30-2), and otherwise
conducted substantial discovery in support of his motion. See Eshelman v. MPFP,
LLC, No. 4:20-CV-3119, 2022 WL 2655821, at *4 (S.D. Tex. June 22, 2022) (refusing
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to authorize further discovery where plaintiffs “have undertaken substantial
discovery, including depositions of Defendants’ representatives”), report and
recommendation adopted, No. 4:20-CV-03119, 2022 WL 2652021 (S.D. Tex. July 8,
2022). Thus, further discovery would likely be futile, and the Court need not give
Cervenka a second chance.
IV.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion for Court-Authorized Notice,
(Dkt. #30), is DENIED with prejudice.
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