Domino's Pizza Drivers Fail to Deliver Common Circumstances to the Eighth Circuit

by BakerHostetler

Despite their work uniforms and company cars, pizza delivery drivers do not have much in common (at least according to the Eighth Circuit).

Recently, in Luiken v. Domino’s Pizza, LLC, No. 12-1216, 2013 WL 399248 (8th Cir. Feb. 4, 2013), the court found that a purported class of 1600 Domino's Pizza delivery drivers lacked the requisite commonality for class certification under the Federal Rules of Civil Procedure due to the variety of interactions between drivers and customers regarding tips.

In Minnesota, any gratuity received by an employee for personal services performed is the property of the employee. Obligatory charges, such as mandatory delivery fees, are considered gratuities when a customer might reasonably see the charge as a payment for personal services rendered by the employee and the employer fails to provide clear and conspicuous notice that the charge is not the employee’s property.

Domino’s Pizza charges a flat per-delivery charge on its pizzas ($1 in 2005; increased to $1.50 in 2009). This charge was disclosed to customers in a variety of ways based on the method of ordering. Notice of the delivery charge appears on online orders, receipts, and the boxes. The drivers do not receive any portion of this charge. However, customers may or may not know this. Some drivers tell customers that the charge is not a tip, while others simply do not address the issue.

Matt Luiken, the class representative, and his fellow delivery drivers argued that the delivery charge is a gratuity under Minnesota law and that Domino’s Pizza should pay the delivery charge to the drivers. The delivery drivers contended that customers could reasonably construe the delivery charge as a payment for personal services because Domino’s failed to provide proper notice that the drivers would not receive the money, and that the context of the transactions between the drivers and customers was irrelevant to the determination of whether proper notice was given.

Reversing the district court’s certification decision, the Eighth Circuit stated that it was unable to make a “one-stroke determination of a class-wide question” regarding the issue of gratuities. According to the Court of Appeals, the variety of pizza delivery transactions made it unreasonable for some customers to construe the delivery charge as a payment for personal services. In construing the statute addressing gratuities, the Court first determines whether the charge might reasonably be construed as a payment for personal services. If so, the court then analyzes any notice from the employer.

In contrast to the delivery drivers’ arguments, the Eighth Circuit emphasized that “context matters.” Relying on Wal-Mart Stores, Inc. v. Dukes, 133 S. Ct. 2541, 2551 (2011), the court noted that “[c]ommonality requires the plaintiff to demonstrate that the class members suffered the same injury.” However, the drivers in this case did not have the same circumstances in common.  Some drivers explained to customers that the delivery charge was not a gratuity, negating the need for the employer to provide notice. Other drivers did not address the issue, and notice from the employer would have been appropriate. Therefore, the customer’s circumstances determined whether the delivery charge could reasonably be viewed as a payment for personal services and whether notice is required.

The Eighth Circuit further emphasized that liability under Minnesota law is based on an objective, reasonable person standard and that context is critical in applying such a standard. Citing Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1032 (8th Cir. 2010), the court noted that “what is objectively reasonable depends on the nature and context of the parties’ bargain.” Since the Court had to consider varied circumstances in determining the objective reasonableness of construing the charge as a payment for personal services, the Court rejected class certification.

The Bottom Line: Delivering pizza is simple; delivering commonality is not. In the Eighth Circuit, if purported class members are affected by different circumstances, the commonality requirement for class certification will not be met.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.