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holding that the court lacks specific jurisdiction over non-resident opt-in class members' FLSA claims unrelated to defendants' alleged conduct in the forum
Summary of this case from Gilburd v. Rocket Mortg.Opinion
No. CV-21-01427-PHX-JAT
2022-10-27
Andrea WILKERSON, Plaintiff, v. WALGREENS SPECIALTY PHARMACY LLC, et al., Defendants.
Jacob R. Rusch, Pro Hac Vice, Zackary S. Kaylor, Pro Hac Vice, Johnson Becker PLLC, St. Paul, MN, Richard Phillip Traulsen, Begam Marks & Traulsen PA, Phoenix, AZ, for Plaintiff. Brendan Alan Melander, Husch Blackwell LLP, Phoenix, AZ, Douglas Calvin Lynn, III, Tracy Ann Miller, Ogletree Deakins Nash Smoak & Stewart PC, Phoenix, AZ, for Defendant Walgreens Mail Service LLC. Jeremy W. Hawpe, Pro Hac Vice, Littler Mendelson PC, Dallas, TX, Kimberly A. Dennis, Mark Ogden, Littler Mendelson PC, Phoenix, AZ, for Defendant Healthcare Support Staffing Incorporated.
Jacob R. Rusch, Pro Hac Vice, Zackary S. Kaylor, Pro Hac Vice, Johnson Becker PLLC, St. Paul, MN, Richard Phillip Traulsen, Begam Marks & Traulsen PA, Phoenix, AZ, for Plaintiff. Brendan Alan Melander, Husch Blackwell LLP, Phoenix, AZ, Douglas Calvin Lynn, III, Tracy Ann Miller, Ogletree Deakins Nash Smoak & Stewart PC, Phoenix, AZ, for Defendant Walgreens Mail Service LLC. Jeremy W. Hawpe, Pro Hac Vice, Littler Mendelson PC, Dallas, TX, Kimberly A. Dennis, Mark Ogden, Littler Mendelson PC, Phoenix, AZ, for Defendant Healthcare Support Staffing Incorporated.
ORDER
James A. Teilborg, Senior United States District Judge
Before the Court is plaintiff Andrea Wilkerson's motion for preliminary certification and notice to potential opt-in plaintiffs. (Doc. 43). Defendants Walgreens Mail Service, LLC ("AllianceRx") and Healthcare Support Staffing, Inc. ("HSS") each filed responses opposing conditional certification, (Docs. 54; 55), and Plaintiff replied to those responses, (Docs. 59; 60). The Court now rules.
I. BACKGROUND
HSS is a staffing agency that hires and places employees in AllianceRx positions. (Docs. 54 at 4; 55 at 2-3). HSS hired Plaintiff, an Arizona resident, to work remotely in Arizona for an AllianceRx call center. (Docs. 33 at 4; 54 at 4-5). Plaintiff alleges that she and other employees working at AllianceRx call centers were regularly scheduled to work 40 hours per week but were not compensated for additional time spent turning on their computers and opening programs before their shifts or for turning off their computers after their shifts. (Doc. 33 at 6-7). She alleges that this violates, among other laws, the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq. (Doc. 33 at 17-19).
Congress enacted the FLSA to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a)-(b). This "broad remedial goal . . . should be enforced to the full extent of [the statute's] terms." Tyson Foods Inc. v. Bouaphakeo, 577 U.S. 442, 456, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). Among other things, the FLSA generally requires that employers pay their employees at one-and-a-half times their normal rate of pay for hours worked beyond 40 in each work week. 29 U.S.C. § 207(a)(1). To vindicate this and other worker rights the FLSA contains a collective action mechanism that permits plaintiffs to litigate their claims more efficiently. Campbell v. City of Los Angeles, 903 F.3d 1090, 1112-13 (9th Cir. 2018) (citations omitted). Using this mechanism, "workers may litigate jointly if they (1) claim a violation of the FLSA, (2) are 'similarly situated,' and (3) affirmatively opt in to the joint litigation, in writing."
Id. (quoting 29 U.S.C. § 216(b)). So far three plaintiffs have opted in to this suit by filing consents to sue with the Court. (Docs. 24-1 at 2-3; 30-1 at 2). Of these, one has since withdrawn, leaving two opt-in plaintiffs. (Doc. 35; see also Doc. 43 at 6).
District courts have developed (and the Ninth Circuit Court of Appeals has approved) a two-step method to determine whether plaintiffs in a purported collective action satisfy the FLSA's requirement that they be similarly situated. See Campbell, 903 F.3d at 1108-1110. The sole result of court approval at the first step of this process (termed "preliminary" or "conditional" certification) is that notice is sent to potential plaintiffs informing them of their right to opt in to the litigation. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (citation omitted).
II. ANALYSIS
Defendants each argue that preliminary certification should be denied because Plaintiff is not similarly situated to the members of the proposed collective action. (Doc. 54 at 9-13, Doc. 55 at 8-17). Defendants also argue that, if the Court were to grant preliminary certification, the resulting notice should be limited to potential plaintiffs who worked in Arizona because the Court lacks personal jurisdiction over claims by out-of-state potential plaintiffs against Defendants. (Doc. 54 at 13-15; Doc. 55 at 17-19). Because the question of which plaintiffs may join the proposed collective action necessarily bears on whether those potential plaintiffs are situated similarly to one another, the Court considers limits to its personal jurisdiction before addressing preliminary certification.
a. Personal Jurisdiction Over the Proposed Collective
Defendants argue that because the Supreme Court's holding in Bristol-Myers Squibb Co. v. Superior Court of California requires that a district court have personal jurisdiction over each defendant as to every claim by each plaintiff, and because here each Defendant was incorporated and has its principal place of business in states other than Arizona, this Court lacks personal jurisdiction over Defendants with respect to potential opt-in plaintiffs whose claims arose from employment in other states. (Docs. 54 at 13-15; 55 at 17-19). For her part, Plaintiff argues that Bristol-Myers does not apply to federal claims heard in federal court, and that finding otherwise would be out of step with district courts in the Ninth Circuit and would contravene Congressional intent by hindering nationwide FLSA actions from being tried jointly. (Docs. 59 at 8-9; 60 at 11-13). Plaintiff also argues that Defendants have waived their personal jurisdiction argument by failing to raise it prior to their responses to Plaintiff's motion for preliminary certification. (Doc. 60 at 12).
582 U.S. 255, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017).
i. Waiver
A party waives a personal jurisdiction defense by failing to include it in a Rule 12 motion or a responsive pleading. Fed. R. Civ. P. 12(h)(1). Defendants are not required "to seek dismissal of hypothetical future plaintiffs," and cannot waive defenses that were not available. Moser v. Benefytt, Inc., 8 F.4th 872, 877-78 (9th Cir. 2021). The only relevant parties with respect to whom Defendants could have waived a personal jurisdiction defense are therefore out-of-state plaintiffs who have already opted in. Opt-in plaintiff Karole Rone (apparently the sole out-of-state opt-in plaintiff) joined the suit by filing her written consent, (Doc. 24), prior to Plaintiff's Second Amended Complaint (the "SAC"), (Doc. 33). No Rule 12 motion has been filed since Rone opted in. Thus, the first responsive pleading in which Defendants could have failed to raise a personal jurisdiction defense as to Rone was in answering the SAC. HSS, in answering the SAC, denied that the Court has personal jurisdiction over non-Arizona residents, and thus has not waived its personal jurisdiction defense as to Rone or any other out-of-state plaintiffs. (See Doc. 66 at 3).
For its part, AllianceRx admitted that personal jurisdiction over it was appropriate, at least with respect to plaintiff Wilkerson. (Compare Doc. 33 at 3; with Doc. 50 at 2). However, whether Rone would continue as a plaintiff in the lawsuit was ambiguous after the SAC was filed and before the present motion was filed. Rone was neither named nor explicitly mentioned in the Second Amended Complaint. (See Doc. 33). And although the Second Amended Complaint was filed on behalf of "Andrea Wilkerson, individually and on behalf of all similarly situated individuals," subsequent references are to a singular "Plaintiff" rather than plural "Plaintiffs." (See id.). Further, although the SAC contained statements regarding the original plaintiff's residency and employment, it contains no similar statements regarding Rone. Additionally, AllianceRx did raise a personal jurisdiction defense in its answer, noting that the Court lacked personal jurisdiction over Walgreens Specialty Pharmacy. (Doc. 50 at 12). Given the ambiguity regarding whether Rone remained part of the lawsuit and whether personal jurisdiction was therefore an available defense as to her claim, and given that AllianceRx did assert a personal jurisdiction defense in its answer to the SAC, the Court will not find that AllianceRx waived its personal jurisdiction defense as to Rone.
But even if all Defendants had waived personal jurisdiction defenses as to Rone, as a matter of efficiency and case management it would still be appropriate at this juncture for the Court to consider whether it would have personal jurisdiction over other members of the proposed collective action: if the Court concludes it would lack personal jurisdiction over out-of-state opt-in plaintiffs, sending notice of the collective action to such plaintiffs would be an exercise in futility, as Defendants could simply raise a personal-jurisdiction defense to each individual opt-in plaintiff at the time each plaintiff filed his or her written consent with the Court. The Court therefore will proceed to consider the parties' arguments regarding personal jurisdiction over the proposed collective.
ii. Principles of Personal Jurisdiction
Personal jurisdiction "is the power of a court to enter judgment against a person." S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). "[B]efore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the defendant's amenability to service of summons." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). In other words, a court cannot exercise this power without both a basis for asserting it (that is, statutory authorization consistent with federal constitutional constraints) and a mechanism by which to assert it (usually, service of process). Ross, 504 F.3d at 1138. "Federal Rule of Civil Procedure 4(k) governs personal jurisdiction in federal courts." Will Co. v. Lee, 47 F.4th 917, 921 (9th Cir. 2022); see also Fischer v. Fed. Express Corp., 42 F.4th 366, 382 (3d Cir. 2022); 1 Robert C. Casad et al., Jurisdiction in Civil Actions § 5.02[2] (4th ed. 2021) (describing Rule 4(k) as containing the "provisions on the basis for personal jurisdiction" as distinct from "provisions on the process for invoking jurisdiction" found elsewhere in Rule 4).
Rule 4(k) provides several bases for asserting personal jurisdiction. Under Rule 4(k)(1), service or "waiver of service establishes personal jurisdiction over a defendant: (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; (B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or (C) when authorized by a federal statute." Fed. R. Civ. P. 4(k)(1). Under Rule 4(k)(2), a federal court can obtain personal jurisdiction over a defendant who is not subject to the jurisdiction of any state if consistent with the Constitution and federal law. Fed. R. Civ. P. 4(k)(2). In most cases under Rule 4(k)(1), because there is no general federal long-arm statute "federal courts must look either to the long-arm statutes of the state in which the court sits . . . or to specific federal statutes" for the requisite statutory authorization. Ross, 504 F.3d at 1138 (citing Fed. R. Civ. P. 4(k)(1)(A)-(D) (repealed 2007)). Where, as in Arizona, the state long-arm statute allows the exercise of personal jurisdiction "to the maximum extent permitted by the . . . Constitution," Ariz. R. Civ. P. 4.2(a), the "jurisdictional analyses under state law and federal due process are the same," Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801-02 (9th Cir. 2004) (citation omitted).
Since Ross was decided Rule 4(k)(1) was amended to remove a redundant subsection referencing the Federal Interpleader Statute, but otherwise remains the same. See 1 Casad et al., supra, § 5.02[4][c] (4th ed. 2021).
In such cases the relevant constitutional constraint is the Due Process Clause of the Fourteenth Amendment, see Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004), which requires that a non-resident defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice,' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citation omitted). This standard permits two distinct degrees of personal jurisdiction: general (or "all-purpose") jurisdiction, and specific (or "case-linked") jurisdiction. Goodyear Dunlop Tires Ops. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). General personal jurisdiction can be had only where a corporation's "affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State." Daimler AG v. Bauman, 571 U.S. 117, 138-39, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (cleaned up). Where a court has general personal jurisdiction over a defendant, that defendant may be made to answer in that court for claims stemming from its activities anywhere in the world. Schwarzenegger, 374 F.3d at 801 (citation omitted). Where a court possesses only specific personal jurisdiction over a defendant, however, that defendant is answerable only for claims which "arise[ ] out of or relate[ ] to the defendant's forum-related activities." Id. at 802 (citation omitted). Save for "exceptional case[s]," a corporation is only considered "at home" in the state or states where it is incorporated or has its principal place of business. Daimler AG, 571 U.S. at 137, 139 n.19, 134 S.Ct. 746; Ford Motor Co. v. Mont. Eighth Jud. Dist., — U.S. —, 141 S. Ct. 1017, 1024, 209 L.Ed.2d 225 (2021).
In Bristol-Myers, applying the Fourteenth Amendment Due Process Clause in a mass-tort action under California law, the Supreme Court held that California courts lacked personal jurisdiction over claims by non-California plaintiffs against a defendant incorporated in Delaware and headquartered in New York. 137 S. Ct. at 1777-79, 82. The defendant had sold a blood thinner in California which it had developed and produced entirely outside of California, and both California and non-California residents brought suit in California, claiming the blood thinner had damaged their health. Id. at 1778. Recognizing that "for a court to exercise specific jurisdiction over a claim" there must be "a connection between the forum and the specific claim[ ] at issue," the Court reasoned that, because the non-California plaintiffs did not claim to have suffered harm from the blood thinner either in California or as a result of defendant's conduct in California, specific jurisdiction over the defendant as to their claims was lacking. Id. at 1781-82. The broader import of this holding is that the Fourteenth Amendment Due Process Clause requires a court to have personal jurisdiction not merely over the defendant in general, but over the defendant with regard to each specific claim by each plaintiff. However, the Court noted that it remained an "open . . . question whether the Fifth Amendment imposes the same restrictions on . . . a federal court" that the Fourteenth Amendment imposes on a state court.
iii. Implications of Bristol-Meyers for FLSA Collective Actions
In the several years since Bristol-Myers the lower federal courts have repeatedly been called upon to answer that question in the context of class and collective actions. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.2, 446 nn.23.80-23.93 (4th ed. Supp. 2022) (collecting cases). The Ninth Circuit Court of Appeals has not addressed the issue, and district courts in the Ninth Circuit have come to varying conclusions. This Court's most recent research has found that at least three Ninth Circuit district courts have held that Bristol-Myers does apply to deprive courts of personal jurisdiction over claims by out-of-state plaintiffs in FLSA actions, while at least seven have held the opposite. Outside the Ninth Circuit at least 27 district courts have applied Bristol-Myers to such actions, while at least 17 have declined to do so. Among circuit courts of appeal that have addressed the issue there is a split as well, with the Third, Sixth, and Eight Circuits in favor of applying Bristol-Myers and the First Circuit against. Fischer, 42 F.4th 366, 371-88 (3d Cir. 2022); Canaday v. Anthem Cos., 9 F.4th 392, 395-404 (6th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 2777, 213 L.Ed.2d 1015 (2022); Vallone v. CJS Sols. Grp., 9 F.4th 861, 864-66 (8th Cir. 2021); Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 91-99 (1st Cir. 2022), cert denied, 213 U.S. 1016, 142 S. Ct. 2777, 213 L.Ed.2d 1016 (2022). Of course, none of these decisions are binding on this Court. But at least two valuable inferences can be taken from the foregoing summary of this ongoing circuit split. First, the present majority view among both circuit and district courts is that Bristol-Myers applies in FLSA collective actions to deprive federal courts of personal jurisdiction over out-of-state opt-in plaintiffs. Second, given the relatively even nature of the split and the number of courts on each side, there must be substantial arguments for both positions.
Kurtz v. RegionalCare Hospital Partners, Inc, 2021 WL 6246619, at *5-6 (E.D. Wash. Sept. 9, 2021); Carlson v. United Nat. Foods, Inc., No. C20-5476, 2021 WL 3616786, at *4 (W.D. Wash. Aug. 14, 2021); McNutt v. Swift Transp. Co. of Ariz., No. C18-5668, 2020 WL 3819239, at *7-9 (W.D. Wash. July 7, 2020).
Arends v. Select Med. Corp., No. CV 20-11381, 2021 WL 4452275, at *1 (C.D. Cal. July 7, 2021); Pavloff v. Cardinal Logistics Mgmt. Corp., No. CV 20-00363, 2020 WL 6828902, at *4 n.2 (C.D. Cal. Oct. 2, 2020); Cooley v. Air Methods Corp., No. CV-19-00850-PHX, 2020 WL 9311858, at *3 (D. Ariz. Sept. 25, 2020); Chavez v. Stellar Mgmt. Grp., No. 19-cv-01353, 2020 WL 4505482, at *5-7 (N.D. Cal. Aug. 5, 2020); Seiffert v. Qwest Corp., No. CV-18-70-GF, 2018 WL 6590836, at *1-4 (D. Mont. Dec. 14, 2018); Swamy v. Title Source, Inc., No. C 17-01175, 2017 WL 5196780, at *2 (N.D. Cal. Nov. 10, 2017); Thomas v. Kellogg Co., No. C13-5136, 2017 WL 5256634, at *1 (W.D. Wash. Oct. 17, 2017).
Bethel v. BlueMercury, Inc., No. 21 Civ. 2743, 2022 WL 3594575 (S.D.N.Y. Aug. 22, 2022); Speight v. Lab. Source, LLC, NO. 4:21-CV-112, 2022 WL 1164415 (E.D.N.C. Apr. 19, 2022); Bone v. XTO Energy, Inc., 561 F. Supp. 3d 1132 (D.N.M. 2021). Parker v. IAS Logistics DFW, LLC, No. 20 C 5103, 2021 WL 4125106 (N.D. Ill. Sept. 9, 2021); Butler v. Adient US, LLC, No. 3:20 CV 2365, 2021 WL 2856592 (N.D. Ohio July 8, 2021); Perez Perez v. Escobar Constr. Inc., 540 F. Supp. 3d 395 (S.D.N.Y. 2021); Martinez v. Tyson Foods, Inc., 533 F. Supp. 3d 386 (N.D. Tex. 2021); Ruffing v. Wipro, Ltd., 529 F. Supp. 3d 359 (E.D. Pa. 2021); Goldowsky v. Exeter Fin. Corp., No. 15-CV-632A(, 2021 WL 695063 (W.D.N.Y. F)eb. 23, 2021); Fischer v. Fed. Express Corp., 509 F. Supp. 3d 275 (E.D. Pa. 2020); Hodapp v. Regions Bank, No. 4:18CV1389, 2020 WL 7480562 (E.D. Mo. Dec. 18, 2020); Hutt v. Greenix Pest Control, LLC, No. 2:20-cv-1108, 2020 WL 6892013 (S.D. Ohio Nov. 24, 2020); Greinstein v. Fieldcore Servs. Sols., LLC, No. 2:18-CV-208-Z, 2020 WL 6821005 (N.D. Tex. Nov. 20, 2020); Wiggins v. Jedson Eng'g, Inc., No. 1:19-CV-00354, 2020 WL 6993858 (E.D. Tenn. Aug. 27, 2020); Weirbach v. Cellular Connection, LLC, 478 F. Supp. 3d 544 (E.D. Pa. 2020); White v. Steak N Shake Inc., No. 4:20 CV 323, 2020 WL 1703938 (E.D. Mo. Apr. 8, 2020); Camp v. Bimbo Bakeries USA, Inc., No. 18-cv-378, 2020 WL 1692532 (D.N.H. Apr. 7, 2020); Murphy v. Lab. Source, LLC, No. 19-cv-1929, 2020 WL 3633234 (D. Minn. Mar. 12, 2020); Vallone v. CJS Sols. Grp., LLC, 437 F. Supp. 3d 687 (D. Minn. 2020); Hanna v. Marriott Hotel Servs. Inc., No 3:18-cv-0325, 2020 WL 13178012 (M.D. Tenn. Feb. 11, 2020); Canaday v. Anthem Cos., 439 F. Supp. 3d 1042 (W.D. Tenn. 2020); Pettenato v. Beacon Health Options, Inc., 425 F. Supp. 3d 264 (S.D.N.Y. 2019); Chavira v. OS Rest. Servs. LLC, No. 18-cv-10029, 2019 WL 4769101 (D. Mass. Sept. 30, 2019); Turner v. Utiliquest, LLC, No. 3:18-cv-00294, 2019 WL 7461197 (M.D. Tenn. July 16, 2019); Rafferty v. Denny's, Inc., No. 5:18-cv-2409, 2019 WL 2924998 (N.D. Ohio, July 8, 2019); Roy v. FedEx Ground Package Sys., Inc., 353 F. Supp. 3d 43 (D. Mass. 2018); Maclin v. Reliable Reps. of Tex., Inc., 314 F. Supp. 3d 845 (N.D. Ohio 2018).
Stacy v. Jennmar Corp. of Va., Inc., 342 F.R.D. 215 (W.D. Va. 2022); Ison v. MarkWest Energy Partners, No. 3:21-0333, 2021 WL 5989084 (S.D.W. Va. Dec. 17, 2021); Harapeti v. CBS Television Stations, Inc., No. 20-CV-20961-WILLIAMS/LOUIS, 2021 WL 1854141 (S.D. Fla. May 10, 2021); Knecht v. C & W Facility Servs., Inc., 534 F. Supp. 3d 870 (S.D. Ohio 2021); Pendleton v. First Transit, Inc., No. 20-1985, 2020 WL 10787425 (E.D. Pa. Dec. 7, 2020); Hager v. Omnicare, Inc., No. 5:19-cv-00484, 2020 WL 5806627 (S.D.W. Va. Sept. 29, 2020); O'Quinn v. TransCanada USA Servs., Inc., 469 F. Supp. 3d 591 (S.D.W. Va. June 29, 2020); Waters v. Day & Zimmermann NPS, Inc., 464 F. Supp. 3d 455 (D. Mass. 2020); Hammond v. Floor & Decor Outlets of Am., Inc., No. 3:19-cv-01099, 2020 WL 2473717 (M.D. Tenn., May 13, 2020); Aiuto v. Publix Super Mkts., Inc., No. 1:19-CV-04803, 2020 WL 2039946 (N.D. Ga. Apr. 9, 2020); Warren v. MBI Energy Servs. Inc., No. 19-cv-00800, 2020 WL 937420 (D. Colo. Feb. 25, 2020); Turner v. Concentrix Servs., No. 1:18-cv-1072, 2020 WL 544705 (W.D. Ark. Feb. 3, 2020); Fritz v. Corizon Health, No. 6:19-CV-03365, 2020 WL 9215899 (W.D. Mo. Jan. 31, 2020); Hunt v. Interactive Med. Specialists, Inc., No. 1:19CV13, 2019 WL 6528594 (N.D.W. Va. Dec. 4, 2019); Meo v. Lane Bryant, Inc., No. CV 18-6360, 2019 WL 5157024 (E.D.N.Y. Sept. 30, 2019); Mason v. Lumber Liquidators, Inc., No. 17-CV-4780, 2019 WL 3940846 (E.D.N.Y. Aug. 19, 2019); Garcia v. Peterson, 319 F. Supp. 3d 863 (S.D. Tex. 2018).
The Court finds the reasoning of cases applying Bristol-Myers in FLSA collective actions more persuasive, and therefore agrees with Defendants that it would lack personal jurisdiction over opt-in plaintiffs whose claims did not arise from Defendants' contacts with Arizona. Although Bristol-Myers was decided under the Fourteenth Amendment, the Ninth Circuit has made clear that Rule 4(k) governs personal jurisdiction in federal courts. Will Co., 47 F.4th at 921. For this Court to assert personal jurisdiction over the out-of-state opt-in plaintiffs, therefore, one of the prongs of Rule 4(k) must apply to provide a basis for that assertion. The FLSA does not contain a nationwide service provision, so Rule 4(k)(1)(C) does not apply. See Go-Video, Inc. v. Akai Elec. Co., Ltd., 885 F.2d 1406, 1416 (9th Cir. 1989) (citing Omni Capital, 484 U.S. at 102-106, 102 n.5, 108 S.Ct. 404) (stating that the Supreme Court has "implie[d] that a national service provision is a necessary prerequisite for a court to even consider a national contacts approach"); 1 Casad, supra, § 5.02[c] (citation omitted) ("this provision simply serves as a reminder that there are federal statutes that provide for nationwide . . . jurisdiction for particular types of cases"). Defendants are not parties joined under Rules 14 and 19 because they are original parties to the lawsuit, so Rule 4(k)(1)(B) does not apply. Defendants are United States entities and are therefore subject to the general personal jurisdiction of at least one state, so Rule 4(k)(2) does not apply.
Thus, the sole potentially applicable provision is Rule 4(k)(1)(A), under which a defendant is only subject to federal-district-court personal jurisdiction if it would be subject to the jurisdiction of a state court of general jurisdiction in the district in which the district court is located. In other words, to assert jurisdiction under Rule 4(k)(1)(A) this Court must apply the same personal jurisdiction analysis required of an Arizona court. The relevant constitutional limitation here is therefore the Fourteenth Amendment Due Process Clause, which requires Defendants to have certain minimum contacts with Arizona such that exercising personal jurisdiction would not offend traditional notions of fair play and substantial justice. Because Plaintiff states that Defendants were not incorporated and do not have their principal places of business in Arizona, (see Doc. 33 at 4), they presumptively are not subject to general personal jurisdiction in Arizona. Indeed, no party argues that Defendants are subject to general personal jurisdiction in Arizona. (See Docs. 54 at 13-15; 55 at 17-19; 59 at 8-9; 60 at 11-13). Defendants would also not be subject to specific personal jurisdiction with regard to the claims of potential out-of-state opt-in plaintiffs because the record does not support (and Plaintiff has not offered) the contention that claims of potential plaintiffs employed outside Arizona arose from Defendants' activities within Arizona. (See Doc. 43-2 at 1-4). Consequently, the Court concludes that it would lack personal jurisdiction over potential out-of-state opt-in plaintiffs.
In avoiding similar conclusions in similar cases some district courts have relied on the proposition that the Bristol-Myers analysis applies at the level of the suit. E.g., Hunt, 2019 WL 6528594, at *3; see also Seiffert, 2018 WL 6590836, at *3-4. These courts assert that the jurisdictional analysis in Bristol-Myers took place "at the level of the suit," rather than considering each individual claim in the suit, and that therefore a court in an FLSA collective action only needs specific personal jurisdiction over the claim between the "named plaintiff" and the defendant. This line of reasoning is unpersuasive. First, the analysis in Bristol-Myers was at the level of the claim, not the level of the suit. See Bristol-Myers, 137 S. Ct. at 1779-1783. The Supreme Court in Bristol-Myers explained that "for a court to exercise specific jurisdiction over a claim, there must be an 'affiliation between the forum and the underlying controversy,' " but found that "a connection between the forum and the specific claims at issue" was missing in that case. Id. at 1781 (quoting Goodyear, 564 U.S. at 919, 131 S.Ct. 2846) (emphasis added). Second, the Ninth Circuit in Campbell made clear that, although not specifically named in the complaint, each "plaintiff who opts in to a collective action has party status." Campbell, 903 F.3d at 1104 (quoting Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016)). From the moment a plaintiff files an opt-in form with the court, "there is no statutory distinction between the roles or nomenclature assigned to the original and opt-in plaintiffs," and the "natural parallel" of FLSA opt-in plaintiffs are "plaintiffs initially named or later added under the ordinary rules of party joinder," as distinct from Rule 23-class-action members whose "interests are litigated by the named plaintiff." Id. at 1104-05 (citations omitted). Thus, opt-in plaintiffs in FLSA cases must be treated the same as original plaintiffs, including for purposes of personal jurisdiction. Because opt-in plaintiffs are treated the same as original plaintiffs, and because a court must have personal jurisdiction over each claim by each plaintiff in a suit, a lack of personal jurisdiction over claims by opt-in plaintiffs cannot be ignored.
Other district courts in the Ninth Circuit have, as Plaintiff urges this Court to do, followed the reasoning of Swamy in declining to apply Bristol-Myers in this context. E.g. Cooley, 2020 WL 9311858, at *3. The Swamy court noted that Bristol-Meyers "did not address class or collective actions" and did not concern "a federal claim created by Congress specifically to address employment practices nationwide." Swamy, 2017 WL 5196780, at *2. Reasoning that extending Bristol-Myers to FLSA collective actions would "splinter most nationwide collective actions, trespass on the expressed intent of Congress, and greatly diminish the efficacy of FLSA collective actions as a means to vindicate employees' rights," the court declined to do so. Id. While the factual distinctions the Swamy court identified are accurate and the policy concerns it expressed are compelling, nonetheless what Swamy and the courts that follow it do not explain is how and why these distinctions and concerns impact the legal outcome. It may be true that the federalism concerns that motivated the Supreme Court in Bristol-Myers are largely missing here. But because Rule 4(k)(1)(A) compels federal courts, absent an applicable federal statute or other exception, to analyze personal jurisdiction as a state court would in similar circumstances, and therefore to apply Bristol-Meyers to the extent it is applicable, the result of that analysis will be the same whether or not every concern that drove the decision in Bristol-Meyers is equally relevant to state and federal courts. The Court therefore will not follow the Swamy line of cases, and for similar reasons is not persuaded by Plaintiff's argument that failing to follow Swamy would put it out of step with other district courts in the Ninth Circuit.
Of the Ninth Circuit district court decisions declining to apply Bristol-Meyers to FLSA collective actions, Chavez provided the most extensive discussion and engaged most directly with the substance undergirding opposing perspectives. See Chavez, 2020 WL 4505482, at *3-7. The Chavez court eventually asserted personal jurisdiction over out-of-state opt-in plaintiffs under the doctrine of pendent personal jurisdiction. Id. at *9-11. But pendent personal jurisdiction is "typically found where one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction." Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180-81 (9th Cir. 2004); see also 4A Wright & Miller, supra, § 1069.7, at 343; but see Fiore v. Walden, 688 F.3d 558, 586-88 (9th Cir. 2012), rev'd, 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014); CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1113-14 (9th Cir. 2004). As discussed, the FLSA does not authorize nationwide service. And in any case, the Ninth Circuit has not endorsed pendent personal jurisdiction when (as here) there is no anchoring claim by the same plaintiff on which to hang a second claim for which jurisdiction is lacking. Carlson, 2021 WL 3616786, at *4; see also Data Disc, Inc. v. Sys Tech. Assocs., Inc., 557 F.2d 1280, 1289 n.8 (9th Cir. 1977) (stating that pendent personal jurisdiction "may or may not be appropriate" where "a plaintiff raises two separate causes of action" and a court finds personal jurisdiction "with regard to one claim, but not the other."). Compare Action Embroidery Corp., 368 F.3d at 1180-81 (approving pendent personal jurisdiction for claims where the court found specific personal jurisdiction over another claim by the same plaintiff against the same defendant), with CE Distrib., LLC, 380 F.3d at 1113; and Fiore, 688 F.3d at 586-87 (same), and CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1080 (9th Cir. 2011) (same), and Perry v. Brown, 791 Fed. App'x 643, 645-46 (9th Cir. 2019) (same). This Court therefore declines to exercise pendent personal jurisdiction here.
The view that Bristol-Myers does not apply in the FLSA context was perhaps most forcefully and persuasively articulated in the decision of the First Circuit Court of Appeals in Waters. See 23 F.4th at 93-99. The Waters court's conclusion rests on its interpretation of Rule 4(k)(1)(A) as imposing Fourteenth Amendment personal jurisdiction requirements only at the instant of initial service, after which Fifth Amendment Due Process is left as the relevant restriction on personal jurisdiction in federal question cases. See id. at 93-94. This appears to be a novel interpretation. See id. at 103 (Barron, J., dissenting) ("I [am not] aware of any other case in which any court . . . has ever read Rule 4(k)(1)(A) in the . . . way that the majority reads it . . . . [T]he common . . . practice of federal courts under this rule appears . . . to have been to apply Fourteenth Amendment-based (rather than Fifth Amendment-based) due process limits on personal jurisdiction throughout a suit's duration, and so even as to later-added claims and plaintiffs."); Bethel, 2022 WL 3594575, at *9 n.10 (noting "the relative lack of caselaw supporting the First Circuit's reading of Rule 4(k)(1)(A)"). It is also at odds with the Ninth Circuit's statement in Will Co., Ltd. that Rule 4(k) "governs personal jurisdiction in federal courts," as this statement suggests that Rule 4(k) does not merely govern effective service of process. Compare Will Co., Ltd., 47 F.4th at 921, with Waters, 23 F.4th at 96 ("the rule evolved to simplify service, not to govern [personal] jurisdiction after service."). Further, the First Circuit's interpretation would "encourage gamesmanship" in federal court suits because "different FLSA plaintiffs would face different jurisdictional standards depending on whether they sue as named plaintiffs or opt in later." Carlson, 2021 WL 3616786, at *4.
But even if the Waters court is correct that Rule 4(k) does not apply to FLSA opt-in plaintiffs after a defendant has been properly served consistent with Fourteenth Amendment personal jurisdiction requirements, that is not enough to grant a court personal jurisdiction over their claims: as discussed above and as the Ninth Circuit has repeatedly stated, district courts must have not only proper service of process but also a basis in rule or statute to assert personal jurisdiction. Since the adoption of the Federal Rules of Civil Procedure, that basis has typically been found in Rule 4(k). See Fischer, 42 F.4th at 382. Prior to the adoption of the federal rules "the territorial limits to which the process of the federal courts could reach was defined by a number of statutes," in the absence of which "process could only be served within the district in which the federal court was sitting." 4B Wright & Miller, supra, § 1124, at 180 n.12 (citing Robertson v. R.R. Lab. Bd., 268 U.S. 619, 45 S.Ct. 621, 69 L.Ed. 1119 (1925)). Through the Rules Enabling Act of 1934, Congress delegated to the Supreme Court of the United States the power to "prescribe rules of civil procedure 'for the district courts of the United States.' " 4 Wright & Miller, supra, § 1012, at 59 (citing 28 U.S.C. § 2072). Once adopted, the federal rules (including Rule 4(k)) "ha[d] the effect of law," and "statutes enacted prior to the promulgation of the rules that are inconsistent with them [were] superseded." Id. § 1030, at 175 (citing 28 U.S.C. § 2072(b)).
It is true (as the Waters court noted) that the federal rules themselves state that they "do not extend or limit the jurisdiction of the district courts." Fed. R. Civ. P. 82. But the Supreme Court has suggested that this admonition applies only to subject-matter jurisdiction and venue rather than to "jurisdiction over the person of the party served." Miss. Pub. Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946). And even if Rule 82 does prevent Rule 4(k) from being read to extend or limit personal jurisdiction, district courts must nonetheless adhere to Rule 4(k), entertaining claims that fall within its territorial limitations and dismissing those outside them. Compare Fed. R. Civ. P. 1 with Fed. R. Civ. P. 4(k). Given this reality, for the rules to neither expand nor diminish district court personal jurisdiction it necessarily follows that Rule 4(k) as written accurately describes the length and breadth of district court personal jurisdiction, even if it is not itself the basis for that jurisdiction. In other words, Rule 4(k)(1)(A) would indicate the existence of a basis to exercise jurisdiction only over defendants who would be "subject to a court of general jurisdiction in the state where the district court is located" and over no one else (and so on for each provision of Rule 4(k)). Therefore, contrary to the First Circuit's reasoning, initially satisfying Rule 4(k)'s requirements with respect to one plaintiff and one defendant would not suffice to support jurisdiction over other claims by additional plaintiffs if no provision of Rule 4(k) indicates a basis for those additional claims—unless an alternative statutory basis affirmatively authorizing the exercise of jurisdiction is identified. See Carlson, 2021 WL 3616786, at *4 (reasoning that even if out-of-state FLSA opt-in plaintiffs "need not serve Rule 4 process to opt in . . . [they] would still need an independent basis for specific jurisdiction.").
Although the Waters court did not expressly establish a basis for asserting jurisdiction over additional claims by additional plaintiffs, the court's reasoning suggests Rule 20 (permissive joinder) as a potential basis. See Waters, 23 F.4th at 84. But this would again be inconsistent with the Ninth Circuit's statement that Rule 4(k) governs personal jurisdiction in federal courts. And it would require the Court to accept that a provision which says nothing about personal jurisdiction somehow governs it while a provision explicitly discussing it has nothing to do with it after service is complete. And given that only some joinder rules are silent as to service of process, it seems likelier that all joinder rules are subject to the background territorial limitations of Rule 4(k) than that the omission in Rule 20 was intended to implicitly indicate standalone authorization. Compare Fed. R. Civ. P. 20, with Fed. R. Civ. P. 14, and Fed. R. Civ. P. 19; see also Fischer, 42 F.4th at 387 n.10. Rule 20 is therefore not a basis upon which district courts can independently assert personal jurisdiction.
Waters also suggests that the FLSA's permission to plaintiffs to bring claims on behalf of themselves and others "similarly situated" authorizes courts to exercise personal jurisdiction. Waters, 23 F.4th at 84. But this statutory permission is followed by the "requirement that the court in which an action is brought be 'of competent jurisdiction,' " suggesting that the permission "was not meant to provide an independent basis for jurisdiction." Fischer, 42 F.4th at 385 (quoting 29 U.S.C. § 216(b)). Nor can the requisite authorization be inferred from the FLSA's silence regarding nationwide service: "Congress knows how to authorize nationwide service of process when it wants to provide for it. That Congress failed to do so . . . argues forcefully that such authorization was not its intention." Omni Capital, 484 U.S. at 106, 108 S.Ct. 404. Thus, even if Rule 4(k)(1)(A) does not apply after a defendant has been served, this Court would still lack a basis upon which to assert jurisdiction over claims by out-of-state opt-in plaintiffs against Defendants.
In sum, no basis to assert personal jurisdiction other than Rule 4(k)(1)(A) presents itself. Rule 4(k)(1)(A) allows this Court to reach only those claims over which an Arizona state court would have jurisdiction, and the jurisdiction of Arizona courts is limited by the Due Process Clause of the Fourteenth Amendment. This Clause requires a state court to have personal jurisdiction over each defendant as to every claim by each plaintiff. When as here a defendant is subject only to specific personal jurisdiction, a court has personal jurisdiction over only those claims arising out of that defendant's forum-related activities. Because employment claims by potential opt-in plaintiffs employed by Defendants out of state cannot be said to have arisen from Defendant's activities in Arizona, a state court would lack personal jurisdiction over those claims. Because a state court would lack personal jurisdiction so—through operation of Rule 4(k)(1)(A)—will this Court. Accordingly, the portion of Defendants' motions requesting limitation of the potential opt-in class to only those potential plaintiffs employed in Arizona will be granted.
The Court construes Defendants' arguments that the Court lacks personal jurisdiction over the claims of out-of-state plaintiffs as a motion to dismiss the claims of any out-of-state plaintiffs who have already opted in to the litigation. Because the Court finds it does lack such jurisdiction, opt-in plaintiff Karole Rone's FLSA claim against Defendants will be dismissed without prejudice.
b. FLSA Preliminary Certification
Having determined the limits of its personal jurisdiction over the proposed class, the Court now considers the effects of those limitations on Plaintiff's motion for preliminary certification. District courts enjoy "substantial judicial discretion" in administering the two-step certification process, including in determining "the form and timing of notice, the timing of motions, [and] the extent of discovery before decertification is addressed," each of which is "largely a question of 'case management.' " Campbell, 903 F.3d at 1110 (first quoting Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482; then citing GCB Commc'ns, Inc. v. U.S. S. Commc'ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011)). At the preliminary certification stage, such discretion is limited somewhat "by the leniency of the standard for the exercise of that discretion." Morgan v. Fam. Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008). Although a claim may later be decertified if after discovery plaintiffs cannot show at least a genuine issue of material fact as to whether collective treatment is warranted, see Campbell, 903 F.3d at 1117-19, at the preliminary certification stage "[p]laintiffs' burden is light," Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010) (citations omitted).
At this initial stage, plaintiffs need only make "substantial allegations" that members of the proposed collective action are similarly situated—that is, that the members share "a legal or factual similarity" that has "the potential to advance [their] claims, collectively, to some resolution." See Campbell, 903 F.3d at 1109, 1115 (citations omitted). This requirement "is loosely akin to a plausibility standard, commensurate with the stage of the proceedings." Id. at 1109 (citations omitted). As such, a "district court's analysis is typically focused on a review of the pleadings but may sometimes be supplemented by declarations or limited other evidence." Id.
This Court has previously preliminarily certified collectives upon submission of statements by plaintiffs of seventeen, eight, six, and three persons claiming to be similarly situated to one another. Because opt-in Plaintiff Rone must be excluded from the potential class for want of personal jurisdiction over her claim, her declaration is not probative of whether Plaintiff is similarly situated to an Arizona-only collective. See Butler v. Adient US, LLC, No. 3:20 CV 2365, 2021 WL 2856592, at *4 (N.D. Ohio July 8, 2021) (excluding potential plaintiffs over whom it lacked personal jurisdiction from the preliminary certification analysis). Put differently, Rone's declaration cannot show that Plaintiff is similarly situated to a potential collective that Rone will not be part of. This leaves Plaintiff's motion for preliminary certification with only one supporting declaration: her own. The Court has described showings including as many as eight statements as "thin" and as many as six statements as "minimal." See Singleton, 2009 WL 3710717, at *5; Bogor, 2010 WL 1962465, at *4; Rose, 2010 WL 1781011, at *12. If eight is thin and six is minimal, one could well be too slender a reed to support Plaintiff's burden at the preliminary certification stage. While submitting declarations or affidavits of proposed class members is not obligatory, a plaintiff who omits such statements must meet her burden of demonstrating a reasonable basis that she is similarly situated to the proposed class members in some other way. See Hart v. U.S. Bank NA, No. CV 12-2471-PHX-JAT, 2013 WL 5965637, at *4 (D. Ariz. Nov. 8, 2013) (citing Colson, 687 F. Supp. 2d at 928).
Anderson v. Ziprealty, Inc., No. CV 12-0332-PHX-JAT, 2013 WL 1882370, at *3-4 (D. Ariz. May 13, 2013).
Singleton v. Adick, No. CV 09-486-PHX-JAT, 2009 WL 3710717, at *5 (D. Ariz. Nov. 2, 2009).
Bogor v. Am. Pony Express, Inc., No. 09-2260-PHX-JAT, 2010 WL 1962465, at *3-4 (D. Ariz. May 17, 2010); Rose v. Wildflower Bread Co., No. CV09-1348-PHX-JAT, 2010 WL 1781011, at *11-12 (D. Ariz. May 4, 2010). Although not specified in either order, the motion in Bogor was supported by six declarations and the motion in Rose was supported by six opt-in agreements.
Juvera v. Salcido, 294 F.R.D. 516, 519-20 (D. Ariz. 2013). Although not specified in the order, the motion in Juvera was filed by four named plaintiffs, three of whom submitted supporting declarations. The motion in Juvera was unopposed. Id. at 518.
Mindful that the Court's order limiting the potential collective to Arizona plaintiffs may have been unexpected given the current state of the law on this issue within the Ninth Circuit, that any denial would likely be without prejudice, and that the burden at preliminary certification is light, in the interest of efficiency the Court will postpone ruling on Plaintiff's motion for preliminary certification to permit Plaintiff to submit additional evidence showing that Plaintiff is similarly situated to members of an Arizona-only collective.
III. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion for preliminary certification (Doc. 43) is denied in part. The potential FLSA collective is limited to opt-in plaintiffs employed by Defendants in Arizona. The portion of Plaintiff's motion requesting certification of an Arizona class remains pending.
IT IS FURTHER ORDERED that opt-in Plaintiff Karole Rone's FLSA claims against Defendants are dismissed without prejudice for lack of personal jurisdiction.
IT IS FURTHER ORDERED that plaintiff may within 30 days file supplemental declarations of additional potential opt-in plaintiffs or other evidence showing that Plaintiff is similarly situated to an Arizona-only collective. Defendants may then file responses limited to five pages each with no attachments within 15 days of Plaintiff's submission of her supplemental evidence, and Plaintiff may file one reply limited to five pages with no attachments within 15 days of the latest timely filed response.