United States District Court, D. Massachusetts
CARLOS CHAVIRA, individually and on behalf of all other persons similarly situated, Plaintiff,
OS RESTAURANT SERVICES, LLC and BLOOMIN' BRANDS, INC., Defendants.
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.
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
opt-in plaintiffs 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. 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].
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].
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. 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].
MOTION TO STRIKE
Assertion of Personal Jurisdiction Defense
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).
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
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).
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.
Legal Framework for Personal Jurisdiction
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.”
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
Massachusetts long-arm statute provides, in relevant part,
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)).
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 ...