United States District Court, D. Massachusetts
JORDAN ROY, ANGEL SULLIVAN-BLAKE, and JUSTIN TRUMBULL, on behalf of themselves and others similarly situated, Plaintiffs,
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.
proposed nationwide collective action, the remaining
plaintiffs, Jordan Roy ("Roy") and Justin Trumbull
"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.
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
background facts are stated in the court's earlier
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.
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
Defendant's objections will be addressed in turn.
The court lacks personal jurisdiction over non-Massachusetts
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.
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
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
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).
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)).
establish specific personal jurisdiction over a defendant
that complies with due process, a plaintiff is required to
(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.").
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
[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).
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).
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.").
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
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).
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."). "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.
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 . . .
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." LaChapelle, 513 F.2d at 288.
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