Chavira v. OS Restaurant Services, LLC

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO STRIKE AND PLAINTIFF'S MOTION FOR NOTICE AND CONDITIONAL CERTIFICATION UNDER 29 U.S.C. § 216(B)

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.

         Named plaintiff Carlos Chavira (“Plaintiff”) filed this putative collective action against OS Restaurant Services, LLC and Bloomin' Brands, Inc., together doing business as Outback Steakhouse (“Defendants” or “Outback”), asserting violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”) and the payment frequency provision of the Massachusetts Wage Act (“Wage Act”). [ECF No. 42 (“Amended Complaint” or “Am. Compl.”) ¶¶ 44-62]. Currently before the Court is Plaintiff's Motion for Notice and Conditional Certification Under 29 U.S.C. § 216(b) (“Motion for Conditional Certification”), which seeks an order authorizing notice and conditionally certifying a collective action “consisting of all current and former Front of House Managers employed by Defendants in the United States of America in Defendants' Outback Restaurants at any time from January 16, 2013 to the present, ” [ECF No. 35], and Defendants' Motion to Strike Notices of Consent filed by out-of-state putative class members (“Motion to Strike”), [ECF No. 44]. For the reasons set forth below, Defendants' Motion to Strike [ECF No. 44] is GRANTED and Plaintiff's Motion for Conditional Certification [ECF No. 35] is DENIED with leave to renew.

         I. BACKGROUND

         The opt-in plaintiffs^[1] in this case assert that they worked as Front of House (“FOH”) Managers at Outback Steakhouse restaurants in various states and allege that Defendants misclassified them as exempt from the overtime requirements of the FLSA.^[2] See [Am. Compl. ¶¶ 44-56]; see, e.g., [ECF No. 36-3 ¶ 1 (Chavira); ECF No. 36-4 ¶ 1 (Chapman); ECF No. 36-5 ¶ 1 (Corea); ECF No. 36-6 ¶ 1 (Matthews); ECF No. 36-7 ¶ 1 (Peirce); ECF No. 36-8 ¶ 1 (Quesada); ECF No. 36-9 ¶ 1 (Sowers); ECF No. 36-10 ¶ 1 (Thomas); ECF No. 36-11 ¶ 1 (Thompson); ECF No. 45 at 6 (Burguiere)]. Defendant Bloomin' Brands, Inc. operates 579 Outback Steakhouse restaurants across the United States in which approximately 50, 000 employees work. [ECF No. 47 ¶ 3]. Its subsidiary, OS Restaurant Services, LLC, is the employer of record for all Outback Steakhouse employees, including FOH Managers. [Id. ¶ 4].

         Plaintiff initiated this case on January 5, 2018 and filed his notice of consent the same day. [ECF Nos. 1, 1-1]. On May 9, 2018, Plaintiff agreed to dismiss a claim regarding overtime wages brought under the Wage Act, [ECF No. 20], and Defendants filed a motion to dismiss the remaining Wage Act claim to the extent it was brought as a class action under Federal Rule of Civil Procedure 23, [ECF No. 21]. On February 25, 2019, the Court granted the motion to dismiss the Wage Act class claims and directed Plaintiff to file an amended complaint. [ECF No. 40]. On March 12, 2019, Plaintiff filed the Amended Complaint, which asserted an FLSA claim, individually and on behalf of a putative class, and an individual Wage Act claim. [Am. Compl.]. Defendants answered the Amended Complaint on March 26, 2019. [ECF No. 43].

         On February 13, 2019, Plaintiff moved to conditionally certify a class under the FLSA for purposes of notice and filed a memorandum and a declaration in support of his Motion for Conditional Certification. [ECF Nos. 35, 36, 36-1]. Notices of consent were filed on February 12, 2019, February 19, 2019, and March 8, 2019.^[3] See [ECF Nos. 34-1, 37-1, 41-1]. On March 29, 2019, Defendants opposed the Motion for Conditional Certification, which they supported with an affidavit and exhibits, and filed the Motion to Strike. [ECF Nos. 44, 46-50]. On April 24, 2019, Plaintiff opposed the Motion to Strike. [ECF No. 56]. On May 1, 2019, Plaintiff filed a reply in further support of his Motion for Conditional Certification, [ECF No. 60], and on May 16, 2019, Defendants filed a reply in further support of their Motion to Strike, [ECF No. 63].

         II. MOTION TO STRIKE

         A. Assertion of Personal Jurisdiction Defense

         Defendants seek to strike the notices of consent filed by out-of-state putative class members arguing that the Court may not exercise personal jurisdiction over Defendants with respect to claims brought by out-of-state plaintiffs. See [ECF No. 45 at 7-13; ECF No. 63 at 7- 9]. As an initial matter, the Court concludes that Defendants are not barred from raising the defense of lack of personal jurisdiction because they asserted the defense timely in their answer to the Amended Complaint, which was their first pleading after any out-of-state plaintiff opted-in to the case and the defense first became available to them. See Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983).

         Federal Rule of Civil Procedure 12(g) prohibits a party that makes a Rule 12 motion from “mak[ing] another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed.R.Civ.P. 12(g)(2). Federal Rule of Civil Procedure 12(h) further states that the defense of personal jurisdiction is waived “by omitting it from a motion in the circumstances described in Rule 12(g)(2)” or by failing to include it in a responsive pleading. Fed.R.Civ.P. 12(h)(1). Although the First Circuit “strictly appl[ies] the waiver rule” of Rule 12(h), see Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment & Allied Indus. Fund, 967 F.2d 688, 692 (1st Cir. 1992), it has observed that the waiver rule only applies where the defense was available to a party, but was not raised:

Rule 12(g) operates in conjunction with Rule 12(h) to require that all defenses permitted to be raised by motion must be included in the same motion. This requirement, however, extends only to defenses “then available.” This language of Rule 12(g) logically also applies to Rule 12(h) with the result that under that subsection defendants do not waive the defense of personal jurisdiction if it was not available at the time they made their first defensive move.

Glater, 712 F.2d at 738 (citations omitted).

         Here, the defense of personal jurisdiction was not available to Defendants when they filed their motion to dismiss in May 2018 because the only plaintiff asserting claims was employed in Massachusetts. On February 12, 2019, the first out-of-state opt-in plaintiff filed a notice of consent. See [ECF No. 34]. Thereafter, Plaintiff filed the Amended Complaint, and Defendants timely asserted the affirmative defense of lack of personal jurisdiction in their answer. See [Am. Compl.; ECF No. 43 at 6]. Accordingly, the Court will consider Defendants' challenge to personal jurisdiction on the merits.

         B. Legal Framework for Personal Jurisdiction

         In federal question cases, “the constitutional limits of the court's personal jurisdiction are fixed, in the first instance, not by the Fourteenth Amendment but by the Due Process Clause of the Fifth Amendment.” United Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir. 1992). “In such circumstances, the Constitution requires only that the defendant have the requisite ‘minimum contacts' with the United States, rather than with the particular forum state (as would be required in a diversity case).” Id. Before a federal court may exercise personal jurisdiction over a defendant in a federal question case, however, the defendant must be subject to service of process. Pike v. Clinton Fishpacking, Inc., 143 F.Supp.2d 162, 166 (D. Mass. 2001). Federal Rule of Civil Procedure 4 “constitutes the principal mechanism for service of process in the federal courts” and establishes limits on where a defendant may be served. See United Elec. Radio & Mach. Workers of Am., 960 F.3d at 1085-86. Rule 4(k) provides that service of process establishes personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located, ” or “when authorized by a federal statute.” Fed.R.Civ.P. 4(k).

         “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.'” Roy v. FedEx Ground Package Sys., Inc., 353 F.Supp.3d 43, 53 (D. Mass. 2018) (quoting McCarthy v. Waxy's Keene, LLC, No. 16-cv-00122-JD, 2016 WL 4250290, at *2 (D.N.H. Aug. 10, 2016)); see Fed.R.Civ.P. 4(k). Accordingly, the Plaintiff must establish that Defendants are subject to personal jurisdiction under the terms of Massachusetts' long-arm statute. See Roy, 353 F.Supp.3d at 53 (quoting McCarthy, 2016 WL 4250290, at *2). Because the Massachusetts long-arm statute “imposes constraints on personal jurisdiction that go beyond those imposed by the Constitution, ” the Court “must therefore find sufficient contacts between [Defendants] 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); see SCVNGR, Inc. v. Punchh, Inc., 85 N.E.3d 50, 55-56 & n.9 (Mass. 2017) (“[W]e take this opportunity to clarify that . . . the long-arm statute's reach is not coextensive with what due process allows.”). This requires both a review of the Massachusetts long-arm statute and an assessment of whether the exercise of personal jurisdiction offends the Defendants' rights under the Due Process Clause of the Fourteenth Amendment. See Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 n.2 (1st Cir. 2016) (observing that the personal jurisdiction analysis is the same in both diversity and federal question cases where nationwide service of process is not authorized by statute); Wang v. Schroeter, No. 11-cv-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011) (“Thus, I must conduct the same personal jurisdiction inquiry, and concomitant ‘minimum contacts' analysis, regardless of whether the claims give rise to diversity or federal question jurisdiction.”).

         The Massachusetts long-arm statute provides, in relevant part, that:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's (a) transacting any business in this commonwealth; (b) contracting to supply services or things in this commonwealth; (c) causing tortious injury by an act or omission in this commonwealth; (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth; [or] (e) having an interest in, using or possessing real property in this commonwealth . . . .

Mass. Gen. Laws ch. 223A, § 3. “[A] claim arises from a defendant's transaction of business in the forum State if the claim was made possible by, or lies in the wake of, the transaction of business in the forum State.” Access Now, Inc. v. Otter Prods., LLC, 280 F.Supp.3d 287, 291 (D. Mass. 2017) (quoting Tatro v. Manor Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994)).

         Under the Fourteenth Amendment, “[d]ue process requires that the defendant ‘have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 7 ...