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Roy v. Fedex Ground Package Systems, Inc.

United States District Court, D. Massachusetts

November 27, 2018

JORDAN ROY, ANGEL SULLIVAN-BLAKE, and JUSTIN TRUMBULL, on behalf of themselves and others similarly situated, Plaintiffs,
v.
FEDEX GROUND PACKAGE SYSTEM, INC. Defendant.

          MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTION FOR ISSUANCE OF NOTICE TO SIMILARLY SITUATED INDIVIDUALS PURSUANT TO 29 U.S.C. § 216(B) (DKT. NO. 6)

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         In this proposed nationwide collective action, the remaining plaintiffs, Jordan Roy ("Roy") and Justin Trumbull ("Trumbull") (collectively, "Plaintiffs"), each assert a single claim against the defendant, FedEx Ground Package System, Inc. ("Defendant" or "FedEx Ground"), for unpaid overtime pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1) (Dkt. No. 1).[1] Presently before the court is Plaintiffs' contested motion for conditional class certification pursuant to 29 U.S.C. § 216(b) (Dkt. No. 6). Specifically, Plaintiffs seek to notify "all similarly situated FedEx delivery drivers around the country" concerning their right to opt into the suit (id.). See 29 U.S.C. § 216(b). After consideration of the parties' submissions and hearing on October 2, 2018, the court grants Plaintiffs' motion for conditional certification in part, and denies it in part for the reasons that follow.[2]

         II. Background

         The background facts are stated in the court's earlier decision:

FedEx Ground, a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania, is a business engaged in business and residential ground package delivery services. FedEx Ground provides ground service to 100% of the continental United States population. In 2016, FedEx Ground had revenues in excess of $16 billion.
Plaintiffs Roy and Trumbull are both residents of Massachusetts . . . . FedEx Ground employed Plaintiffs as full-time delivery drivers through intermediary entities that FedEx Ground calls "independent service providers," or "ISPs." Roy worked for FedEx Ground from February 2015 to January 2017. Trumbull worked for FedEx Ground from late 2015 to February 2017.
. . .
Plaintiffs were eligible to receive overtime and regularly worked over forty hours per week delivering packages for FedEx Ground. Yet, Plaintiffs were not paid time-and-a-half their regular rate for those hours.

(Dkt. No. 41) (footnote omitted). Additional details will be provided in the analysis of the issues.

         Plaintiffs allege that they are entitled to conditional certification because all drivers to whom they seek to issue notice are similarly situated (Dkt. No. 6). FedEx Ground opposes the motion on two grounds: (1) the court lacks personal jurisdiction over non-Massachusetts drivers; and (2) only Roy, Trumbull, and other drivers employed by the same ISP are similarly situated.

         Each of Defendant's objections will be addressed in turn.

         III. Analysis

         A. The court lacks personal jurisdiction over non-Massachusetts plaintiffs.

         Relying on Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., San Francisco Cty., 137 S.Ct. 1773 (2017) (hereinafter Bristol-Myers), FedEx Ground argues that Plaintiffs are barred from asserting claims on behalf of putative collective action members who worked outside Massachusetts because those claims do not relate to FedEx Grounds' contacts with Massachusetts (Dkt. No. 55 at 2-6). Plaintiffs maintain that Bristol-Myers' holding does not apply to opt-in plaintiffs in FLSA collective actions (Dkt. No. 57 at 2-8). The court concludes that the claims of potential opt-in out-of-state employees do not provide the court with a basis to exercise personal jurisdiction over FedEx Ground as to such claims.[3]

         "It is axiomatic that, '[t]o hear a case, a court must have personal jurisdiction over the parties, "that is, the power to require the parties to obey its decrees."'" Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008) (alteration in original) (quoting Daynard v. Ness, Motley, Loadholt, Richardson, & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002)). Consequently, the question of personal jurisdiction must be decided before the court "reach[es] the merits of a case . . . ." United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 46 (1st Cir. 1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 101 (1998)).

         "When a court's power to exercise personal jurisdiction over a defendant is challenged, the plaintiff bears the burden of establishing that the exercise of such jurisdiction is proper." Gulf Oil Ltd. P'ship v. Petroleum Mktg. Grp., Inc., 308 F.Supp.3d 453, 457 (D. Mass. 2018) (citing A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016)). "Under the commonly used 'prima facie' approach, a court considers 'whether [plaintiff] has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.'" Id. (quoting A Corp., 812 F.3d at 58). "A court 'must accept [plaintiff's] properly documented evidentiary proffers as true and construe them in the light most favorable to [its] jurisdictional claim.'" Id. (second alteration in original) (quoting A Corp., 812 F.3d at 58). "However, the plaintiff is only entitled to credit for assertions that are supported by specific evidence, not for conclusory or unsupported allegations from its pleadings." Id. (citing Platten v. HG Berm. Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)). "Allegations in legal memoranda alone are 'insufficient . . . to establish jurisdictional facts.'" Id. (alteration in original) (quoting Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001)).

         "Personal jurisdiction over defendants in federal question cases [such as this] depends on meeting the due process requirements of the Fifth Amendment and making service of process under Federal Rule of Civil Procedure 4(k)." McCarthy v. Waxy's Keene, LLC, Civil No. 16-cv-122-JD, 2016 WL 4250290, at *2 (D.N.H. Aug. 10, 2016) (citing Swiss Am. Bank, Ltd., 274 F.3d at 618). See BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1556 (2017) ("[A]bsent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction."). "[S]ervice of process must . . . be grounded in a federal statute or rule." Wang v. Schroeter, Civil Action No. 11-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011) (citing Swiss Am. Bank, Ltd., 274 F.3d at 618). Where, as here, nationwide service of process is not authorized by the statute -- the FLSA -- "service is effective only if the defendant is subject to jurisdiction in the forum state." McCarthy, 2016 WL 4250290, at *2 (citing Fed.R.Civ.P. 4(k)(1)). See Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir. 1992) (if Congress did not provide for nationwide service of process, it cannot be inferred) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106 (1987)). "To make that showing, the plaintiffs must establish that the defendants meet the requirements of the forum state's long-arm statute." McCarthy, 2016 WL 4250290, at *2 (citing Fed.R.Civ.P. 4(k)(1)(A)). Because the Massachusetts long-arm statute "imposes constraints on personal jurisdiction that go beyond those imposed by the Constitution[, ] [the court] must . . . find sufficient contacts between the defendant and the forum state to satisfy both the Massachusetts long-arm statute and the Constitution." Nowak v. Tak How Invs, Ltd., 94 F.3d 708, 712 (1st Cir. 1996) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995)); see also SCVNGR, Inc. v. Punchh, Inc. 85 N.E.3d 50, 56 n.9 (Mass. 2017) (clarifying that Massachusetts' long-arm statute's reach is not coextensive with what due process allows). This court previously analyzed the Massachusetts long-arm statute and the Due Process clause and determined that it had personal jurisdiction over the named plaintiffs Roy and Trumbull, who lived and worked in Massachusetts at the relevant time, but did not have personal jurisdiction over Plaintiff Sullivan-Blake, who resided and worked in Texas (Dkt. No. 41).

         Because FedEx Ground is a Delaware corporation with its principal place of business in Pennsylvania, there is no dispute that Massachusetts courts do not have general jurisdiction. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). The court's analysis addresses specific jurisdiction over the claims of potential nonresident opt-in plaintiffs. "In order for a . . . court to exercise specific jurisdiction, 'the suit ' must 'aris[e] out of or relat[e] to the defendant's contacts with the forum.'" Bristol-Myers, 137 S.Ct. at 1780 (quoting Daimler, 571 U.S. at 127) (alterations in original) (internal quotation marks omitted). See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985) (specific jurisdiction may be established over a defendant who "has 'purposefully directed' his activities at residents of the forum and the litigation results from alleged injuries that 'arise out of or relate to' those activities.") (citation omitted) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on "the relationship among the defendant, the forum, and the litigation."'" Walden v. Fiore, 571 U.S. 277, 283-84 (2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). "[T]he defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being hauled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). "For this reason, 'specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.'" Bristol-Myers, 137 S.Ct. at 1780 (internal quotation marks omitted) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

         To establish specific personal jurisdiction over a defendant that complies with due process, a plaintiff is required to show that:

(1) its claim directly arises out of or relates to the defendant's forum activities; (2) the defendant's forum contacts represent a purposeful availment of the privilege of conducting activities in that forum, thus invoking the benefits and protections of the forum's laws and rendering the defendant's involuntary presence in the forum's courts foreseeable; and (3) the exercise of jurisdiction is reasonable.

Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 7 (1st Cir. 2018) (citing A Corp., 812 F.3d at 59). All three minimum contact requirements must be met in order for plaintiff to establish specific jurisdiction over a defendant. See id; Pushor v. Mount Washington Observatory, Inc., Docket No. 2:17-cv-354-NT, 2018 WL 3487579, at *3 (D. Me. May 17, 2018), reconsideration denied, Docket No. 2:17-cv-354-NT, 2018 WL 3478892 (D. Me. July 19, 2018) ("If the plaintiff proceeds under a specific jurisdiction theory, the court must be satisfied that all three prongs are met.").

         In Bristol-Myers, the Court addressed the relatedness requirement in the context of whether the California state courts had specific jurisdiction over the tort claims of nonresident plaintiffs.

[A] group of more than 600 plaintiffs, the majority of whom were not California residents, brought a products liability action against Bristol-Myers Squibb ("BMS"), a large pharmaceutical company incorporated in Delaware and headquartered in New York, in California state court. The plaintiffs sought to recover under California law for personal injuries allegedly resulting from the plaintiffs' use of Plavix, a drug manufactured by BMS. Reversing the California Supreme Court, the Court held that California courts did not have specific jurisdiction to entertain the nonresidents' claims against BMS. The Court noted that, under "settled principles" of specific jurisdiction, "for a court to exercise specific jurisdiction over a claim, there must be an 'affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State [and is therefore subject to the State's regulation].'" [Bristol-Myers, ] 137 S.Ct. at 1781 [first alteration in original] (quoting Goodyear, 564 U.S. at 919). The Court found that connection to be lacking with respect to the nonresidents' claims where the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. Id. "The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California - and allegedly sustained the same injuries as did the nonresidents - does not allow the State to assert specific jurisdiction over the nonresidents' claims." Id. What was needed - and what was missing - was a "connection between the forum and the specific claims at issue." Id.

(Dkt. No. 41).

         FedEx Ground contends that Bristol-Myers precludes the court from exercising specific jurisdiction over the FLSA claims of unnamed plaintiffs employed outside Massachusetts because "opt-ins in an FLSA case are individually joined party plaintiffs, consistent with the nature of [FLSA] actions as procedurally more akin to mass actions than class actions" (Dkt. No. 55 at 2, 4). Plaintiffs, on the other hand, ask the court to adopt the reasoning of the "majority of its sister courts around the country" that have rejected the application of Bristol-Myers to class or collective actions (Dkt. No. 57 at 3). Plaintiffs' argument is two-pronged. First, they rely on the language in the Court's majority opinion stating that it left "open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court" as apply to a state court. Bristol-Myers, 137 S.Ct. at 1784. In addition, Plaintiffs distinguish Bristol-Myers on procedural grounds: it was a mass tort suit brought in state court asserting state law claims, as opposed to a federal action filed in federal court asserting federal claims (Dkt. No. 57 at 2-8). Notwithstanding these distinctions, the court concludes that "Bristol-Myers applies to FLSA claims, in that it divests courts of specific jurisdiction over the FLSA claims of non-[Massachusetts employed] plaintiffs against [FedEx Ground]." Maclin v. Reliable Reports of Tex., Inc., 314 F.Supp.3d 845, 850 (N.D. Ohio 2018).

         Although Bristol-Myers addressed constraints on personal jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment, see Bristol-Myers, 137 S.Ct. at 1779, Plaintiffs' reliance on Fifth Amendment Due Process is unavailing. Plaintiffs correctly point out that personal jurisdiction in federal question cases is governed by the Fifth Amendment's Due Process Clause, which "requires only that defendants have minimum contacts with the United States as a whole rather than with a particular state." Wang v. Schroeter, Civil Action No. 11-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011) (citing Swiss Am. Bank, Ltd., 274 F.3d at 618). However, because the FLSA does not authorize nationwide service of process, see Id. at *4 n.12, "this [c]ourt looks to [Massachusetts] law and the Due Process Clause of the Fourteenth Amendment for the applicable limits on its exercise of personal jurisdiction." Mussat v. IQVIA, Inc., No. 17 C 8841, 2018 WL 5311903, at *4 (N.D. Ill. Oct. 26, 2018) (citing Walden, 571 U.S. at 283). See Crowe v. Harvey Klinger, Inc., 277 F.Supp.3d 182, 189 (D. Mass. 2017) (citing Sawtelle, 70 F.3d at 1387). Consequently, the Fifth Amendment does not dictate the parameters of due process in this case. See Maclin, 314 F.Supp.3d at 850-51 ("[T]he court cannot envisage that the Fifth Amendment Due Process Clause would have any more or less effect on the outcome respecting FLSA claims than the Fourteenth Amendment Due Process Clause, and this district court will not limit the holding in Bristol-Myers to mass tort claims or state courts.").

         Although at least one other court has accepted the argument, this court ultimately does not find persuasive Plaintiffs' attempt to distinguish this case from Bristol-Myers on the basis that it is an FLSA collective action in federal court. See, e.g., Swamy v. Title Source, Inc., No. C 17-01175 WHA, 2017 5196780, at *2 (N.D. Cal. Nov. 10, 2017) (distinguishing Bristol-Myers as "a mass tort action against the defendant pharmaceutical company in California state court, alleging state claims" and declining to apply it to an FLSA collective action). As another court confronting the application of Bristol-Myers to a class action observed: "[t]he constitutional requirements of due process do[] not wax and wane when the complaint is individual or on behalf of a class. Personal jurisdiction in class actions must comport with due process just the same as any other case." In re Dental Supplies Antitrust Litig., 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017). "Nothing in Bristol-Myers suggests that its basic holding is inapplicable to class actions; 'rather, the Court announced a general principle - that due process requires a "connection between the forum and the specific claims at issue."'" Chavez v. Church & Dwight Co., No. 17 C 1948, 2018 WL 2238191, at *10 (N.D. Ill. May 16, 2018) (quoting Greene v. Mizuho Bank, Ltd., 289 F.Supp.3d 870, 874 (N.D. Ill. 2017)). "That principle applies with equal force whether or not the plaintiff is a putative class representative." Greene, 289 F.Supp.3d at 874. Rather, in this court's view, "the Court's concerns about federalism suggest that it seeks to bar nationwide class actions in forums where the defendant is not subject to general jurisdiction." Chavez, 2018 WL 2238191, at *10 (citing DeBernardis v. NBTY, Inc., No. 17 C 6125, 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018)). See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F.Supp.3d 840, 861 (N.D. Ill. 2018) (a defendant's due process interest is the same in a mass tort action as in a class action).[4]

         District courts generally have extended the specific jurisdiction principles articulated in Bristol-Myers to the analysis of personal jurisdiction over named plaintiffs in federal class actions. "It appears that those courts agree that Bristol-Myers generally applies to bar nationwide class actions in federal court where the defendant allegedly injured the named plaintiff outside the forum." Mussat, 2018 WL 5311903, at *4 (emphasis added). See, e.g., Lee v. Branch Banking & Tr. Co., Civil Action No. 18-21876-Civ-Scola, 2018 WL 5633995, at *4 & n.1 (S.D. Fla. Oct. 31, 2018) (Florida's long-arm statute and Bristol-Myers were fatal to the claims of the nonresident named plaintiffs in a class action); Chernus v. Logitech, Inc., Civil Action No. 17-673(FLW), 2018 WL 1981481, at *6 (D.N.J. Apr. 27, 2018) (the court did not have personal jurisdiction over a nonresident named plaintiff in a putative nationwide class action where the named plaintiff's injury lacked a connection to the forum state); Greene, 289 F.Supp.3d at 874 (citing Bristol-Myers, the court dismissed the claims of a named plaintiff in a putative class action who was a nonresident of the forum state, was not injured there, and whose claims were unrelated to the defendant's contacts with the forum state notwithstanding the similarity between the nonresident named plaintiff's claims and those of the resident named plaintiff); Spratley v. FCA U.S. LLC, 3:17-CV-0062, 2017 WL 4023348, at *7 (N.D.N.Y. Sept. 12, 2017) (applying Bristol-Myers and finding that the court lacked specific jurisdiction over the claims of out-of-state named plaintiffs who showed "no connection between their claims and Chrysler's contacts with [the forum state]"). Similarly, in the instant case, the court determined that it did not have specific jurisdiction over FedEx Ground as to the claims of the nonresident named plaintiff, Sullivan-Blake (Dkt. No. 41).

         In support of their position that Bristol-Myers does not bar personal jurisdiction over FedEx Ground as to the absent collective action members, Plaintiffs rely on the dissent's observation that "[t]he Court [did] not confront the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum state seeks to represent a nationwide class of plaintiffs, not all of whom were injured there." Bristol-Myers, 137 S.Ct. at 1789 n.4 (Sotomayor, J., dissenting). Since Bristol-Myers, the district courts that have addressed the question posed by Justice Sotomayor disagree on whether Bristol-Myers extends to nonresident unnamed class or collective action members in cases where the defendant injured the named plaintiff in the forum state. See Chavez, 2018 WL 2238191, at *10 ("Whether Bristol-Myers extends to class [and collective] actions is a question that has divided [district] courts across the country.").[5] "No Court of Appeals has engaged the question of whether [Bristol- Myers] requires a finding of specific personal jurisdiction with respect to unnamed members of a putative class [or collective] action suit." Knotts, 2018 WL 4922360, at *13. In the court's view, an analysis of the similarities between the nonresident party plaintiffs in Bristol-Myers, the out-of-forum named plaintiffs in Rule 23 class actions, and the nonresident opt-in plaintiffs in FLSA suits supports FedEx Ground's position that, even if the principles stated in Bristol-Myers do not extend to class members in class actions, they preclude this court from asserting personal jurisdiction over the claims of potential opt-in plaintiffs who do not work for FedEx Ground in Massachusetts. FedEx Ground drivers would potentially be able to bring a nationwide collective action in Delaware and Pennsylvania, "the States that have general jurisdiction" over FedEx Ground. Bristol-Myers, 137 S.Ct. at 1783. "Alternatively, the [potential opt-in] plaintiffs who are residents of a particular state . . . could probably sue together in their home States." Id. One commentator has viewed the Court's comment concerning a safe forum for nationwide class actions as signaling that its recent jurisdictional decisions, including Bristol-Myers, effectively point towards an intent to limit nationwide class actions to forums with general jurisdiction over defendants. See 2 William B. Rubenstein, Newberg on Class Actions § 6.26 (5th ed. 2011-2018).

         To the extent Plaintiffs rely on cases indicating that Bristol-Myers does not apply to nationwide class actions brought pursuant to Fed.R.Civ.P. 23 because personal jurisdiction over a defendant is gauged by personal jurisdiction over named plaintiffs (Dkt. No. 57 at 2-8), see, e.g., Morgan v. U.S. Xpress, Inc., No. 3:17-cv-00085, 2018 WL 3580775, at *5-6 (W.D. Va. July 25, 2018); In re: Chinese-Manufactured Drywall Prods. Liab. Litig., CIVIL ACTION MDL NO. 09-2047, 2017 WL 5971622, at *12 (E.D. La. Nov. 30, 2017), there are meaningful distinctions between Rule 23 class actions and FLSA collective actions. See Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 359 (D. Me. 2010). "Rule 23 provides for 'opt out' class actions. FLSA [§ 216(b)] allows as class members only those who 'opt in.' These two types of class actions are mutually exclusive and irreconcilable." LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975). See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2013) ("Rule 23 actions are fundamentally different from collective actions under the FLSA . . . .").

         The consequences of certification highlight the distinctions between the class actions under Rule 23 and collective actions under 29 U.S.C. § 216(b). In a Rule 23 proceeding in which the class has been certified under Fed.R.Civ.P. 23(c)(1), the class is described and has independent legal status. See LaChapelle, 513 F.2d at 288; Bucceri v. Cumberland Farms, Inc., Civil Action No. 15-cv-13955-IT, 2017 WL 3495693, at *2 (D. Mass. Aug. 14, 2017); Fed.R.Civ.P. 23(c)(1)(B). "[I]f the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has 'opted out' of the suit."[6] LaChapelle, 513 F.2d at 288.

         By contrast, under the FLSA:

[a]n action to recover the liability . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to ...

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