Law360, New York (April 20, 2017, 2:05 PM EDT) — Uber told a New York federal judge Wednesday that a pair of drivers are repackaging allegations that Uber withheld full fares from them or falsely promised drivers would make a guaranteed income, saying the court should reject their attempt to dodge arbitration or revive their claims.
Uber Technologies Inc. argued that there are no grounds for U.S. District Judge Nicholas G. Garaufis to reconsider his recent ruling dismissing or forcing into arbitration certain claims that drivers Jose Ortega and Joce Martinez leveled against the ride-hailing giant and the plaintiffs are just trying to take a “second bite at the apple.”
“Although plaintiffs Martinez and Ortega evidently disagree with this court’s memorandum & order, they fall far short of establishing an entitlement to the extraordinary remedy of reconsideration,” Uber argued Wednesday. “Under the pretext that they have identified controlling law and factual matters that this court overlooked, plaintiffs have merely ‘repackaged’ arguments that the court has already considered, and rejected.”
The plaintiffs’ initial claims in their proposed wage-and-hour class action accused Uber of misclassifying drivers as independent contractors in order to avoid New York Labor Law requirements, such as minimum wage, overtime pay and expense reimbursement.
But Judge Garaufis in March gutted their suit, sending certain claims to arbitration because the drivers failed to opt out of arbitration when given the chance and dismissing other claims outright.
Uber fired back at Martinez’s argument that the court wrongly ordered him into individual arbitration by claiming it failed to address the arbitrability of his false advertising claim against Uber.
“In fact, the court did nothing of the kind,” Uber said. “Rather, it properly set the issue aside for the arbitrator to decide. Reconsideration of this issue is, therefore, unwarranted.”
Martinez had alleged that before he ever started driving for Uber, he heard a radio advertisement in which Uber offered $500 to individuals to register to become Uber drivers and he had also noticed Uber’s advertisements claiming the company would guarantee a driver’s earnings over a definite period of time, such as $60,000 guaranteed for the driver’s first year with Uber.
Those advertising campaigns were what induced him to drive for Uber, but they were false and deceptive and resulted in Martinez giving up reliable and consistent income from his previous job to become an Uber driver, he claimed in court documents.
Uber also slammed Ortega’s request that the judge reconsider the dismissal of his breach of contract claim after reviewing the driver’s license agreement. Ortega argued that the judge dismissed the claim without reviewing a “city addendum” to the June 2014 agreement, or addressing the subsequent April and December 2015 agreements.
“A motion for consideration is not an opportunity to present evidence that the movant knew or should have known about in the first place,” Uber says. “Here, plaintiff Ortega neglected to put the city addendum before the court, or even reference it, either in his complaint or in his opposition to Uber’s motion to dismiss.”
Uber has not addressed the claim that the arbitration agreement does not apply retroactively with respect to the false advertising claim.
One of the plaintiffs’ attorneys, Jonathan W. Greenbaum of Coburn & Greenbaum PLLC, said in a statement to Law360 on Thursday that Uber has not addressed the claim that the arbitration agreement does not apply retroactively with respect to the false advertising claim. He didn’t comment further on Uber’s opposition brief.
Marc Held of Held & Hines LLP, another attorney for the plaintiffs, said in a statement on Thursday that “Uber keeps repackaging the same old arguments.”
“Plaintiffs are confident the court will see through Uber’s pro forma opposition and find in favor of the plaintiffs,” Held added.
Uber is represented by David M. Wirtz, Andrew M. Spurchise, Kevin R. Vozzo of Littler Mendelson PC.
Jose Ortega and Joce Martinez are represented by Jonathan W. Greenbaum of Coburn & Greenbaum PLLC, Philip M. Hines, Marc J. Held and Scott B. Richman of Held & Hines LLP.
The case is Ortega et al. v. Uber Technologies Inc. et al., case number 1:15-cv-07387, in U.S. District Court for the Eastern District of New York.
–Additional reporting by Kat Sieniuc. Editing by Kelly Duncan.