ALBUQUERQUE (LN) — A federal district judge on Wednesday refused to certify an interlocutory appeal in a wage class action against Bam! Pizza Management, ruling the company failed to show the legal questions it wants the Tenth Circuit to resolve are genuinely contested or that an appeal would do anything to shorten a case that has already stretched more than four years.
The dispute turns on how much pizza delivery drivers must be reimbursed for using their personal vehicles on the job. U.S. District Judge Sarah M. Davenport ruled in January that the Fair Labor Standards Act requires Bam! Pizza to cover those expenses "to the penny" — rejecting the company's position that a reasonable approximation of costs is sufficient.
Davenport grounded that ruling in Parker v. Battle Creek Pizza, the Sixth Circuit's decision cited as 95 F.4th 1009 and the only appellate opinion to have addressed the vehicle reimbursement standard directly. Bam! Pizza asked her to certify two questions for immediate appeal: the proper reimbursement standard and which party bears the burden of maintaining expense records.
On the first question, Davenport found no circuit split and no intra-district conflict within New Mexico — the two scenarios most likely to satisfy the substantial-ground-for-difference-of-opinion requirement under 28 U.S.C. § 1292(b). The cases Bam! Pizza cited, she wrote, were largely unreported, issued before Parker, and from outside the district. The company's remaining authorities — including cases holding that delivery vehicles are "tools of the trade" exempt from strict reimbursement — relied on reasoning she had already rejected in January, and the company offered no new argument to fill the gap.
"If there is a persuasive argument that vehicles are not tools of the trade, or that the travel expenses provision should apply even if they are, Defendants do not make it," Davenport wrote.
On recordkeeping, she was equally unsparing. Bam! Pizza argued that the January order had expanded the Sixth Circuit's holding in Parker beyond its scope. Davenport called that claim erroneous on two fronts: Parker contains no recordkeeping holding, and she had not cited Parker in that section of her order at all. The obligation to maintain wage records, she noted, flows directly from 29 U.S.C. § 211 and is reinforced by recent circuit authority requiring employers — not employees — to keep accurate records.
Bam! Pizza's proposed arrangement, Davenport wrote, would leave whether employees received the minimum wage resting peculiarly in their employees' ken — an outcome she described as neither a compelling nor sound interpretation of the FLSA.
The company fared no better on the third factor. Davenport rejected the argument that a Tenth Circuit ruling could dramatically narrow discovery, noting that both the actual-cost and reasonable-approximation standards require plaintiffs to document drivers' expenses to prove a violation. The same data — mileage, maintenance costs, gas prices, wage records — will be needed either way, she found, and the parties' state-law unjust enrichment and minimum wage claims demand that discovery regardless of how the FLSA question is resolved.
Bam! Pizza had pointed to a motion for interlocutory appeal filed by plaintiffs' current counsel in Bradford v. Team Pizza Inc., an underlying Parker case, arguing it showed that the reimbursement standard is a threshold issue that reshapes the entire litigation. Davenport distinguished Bradford sharply: the Bradford plaintiffs sought the IRS mileage rate as a default, meaning a favorable ruling would have reduced discovery to a single question about recordkeeping adequacy. No such shortcut exists here.
The case has been pending since 2022, and Davenport warned that further delay risked evidence loss — a concern she called "particularly acute" given the litigation's length.