Roy v. FedEx Ground Package Sys., Inc.

353 F.Supp.3d 43

Jordan ROY, Angel Sullivan-Blake, and Justin Trumbull, on Behalf of Themselves and Others Similarly Situated, Plaintiffs,

v.FEDEX GROUND PACKAGE SYSTEM, INC., Defendant.

Civil Action No. 3:17-cv-30116-KAR

United States District Court, D. Massachusetts.

Signed November 27, 2018

Richard E. Hayber, Pro Hac Vice, The Hayber Law Firm, LLC, Hartford, CT, Shannon E. Liss-Riordan, Peter M. Delano, Lichten & Liss-Riordan, P.C., Boston, MA, Michelle Cassorla, West Newton, MA, for Plaintiffs.

Morgan B. Franz, Pro Hac Vice, Kenneth D. Sansom, Spotswood, Sansom & Sansbury LLC, Birmingham, AL, Jeffrey A. Dretler, Fisher & Phillips LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTION FOR ISSUANCE OF NOTICE TO SIMILARLY SITUATED INDIVIDUALS PURSUANT TO 29 U.S.C. § 216(b)

KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE

I. Introduction

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

II. Background

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

FedEx Ground, a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania, is a business engaged in business and residential ground package delivery services. FedEx Ground provides ground service to 100% of the continental United States population. In 2016, FedEx Ground had revenues in excess of $16 billion.

Plaintiffs Roy and Trumbull are both residents of Massachusetts .... FedEx Ground employed Plaintiffs as full-time delivery drivers through intermediary entities that FedEx Ground calls "independent service providers," or "ISPs." Roy worked for FedEx Ground from February 2015 to January 2017. Trumbull worked for FedEx Ground from late 2015 to February 2017.

...

Plaintiffs were eligible to receive overtime and regularly worked over forty hours per week delivering packages for FedEx Ground. Yet, Plaintiffs were not paid time-and-a-half their regular rate for those hours.

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

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

III. Analysis

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

Relying on Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., San Francisco Cty. , ––– U.S. ––––, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) (hereinafter Bristol-Myers ), FedEx Ground argues that Plaintiffs are barred from asserting claims on behalf of putative collective action members who worked outside Massachusetts because those claims do not relate to FedEx Grounds' contacts with Massachusetts (Dkt. No. 55 at 2-6). Plaintiffs maintain that Bristol-Myers' holding does not apply to opt-in plaintiffs in FLSA collective actions (Dkt. No. 57 at 2-8). The court concludes that the claims of potential opt-in out-of-state employees do not provide the court with a basis to exercise personal jurisdiction over FedEx Ground as to such claims.³

"It is axiomatic that, ‘[t]o hear a case, a court must have personal jurisdiction over the parties, "that is, the power to require the parties to obey its decrees.’ " " Hannon v. Beard , 524 F.3d 275, 279 (1st Cir. 2008) (alteration in original) (quoting Daynard v. Ness, Motley, Loadholt, Richardson, & Poole, P.A. , 290 F.3d 42, 50 (1st Cir. 2002) ). Consequently, the question of personal jurisdiction must be decided before the court "reach[es] the merits of a case ...." United States v. Swiss Am. Bank, Ltd. , 191 F.3d 30, 46 (1st Cir. 1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ).

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

"Personal jurisdiction over defendants in federal question cases [such as this] depends on meeting the due process requirements of the Fifth Amendment and making service of process under Federal Rule of Civil Procedure 4(k)." McCarthy v. Waxy's Keene, LLC, Civil No. 16-cv-122-JD, 2016 WL 4250290, at *2 (D.N.H. Aug. 10, 2016) (citing U.S. v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618 (1st Cir. 2001) ). See BNSF Ry. Co. v. Tyrrell, ––– U.S. ––––, 137 S.Ct. 1549, 1556, 198 L.Ed.2d 36 (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, 108 S.Ct. 404, 98 L.Ed.2d 415 (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. 478 Mass. 324, 85 N.E.3d 50, 56 n.9 (2017) (clarifying that Massachusetts' long-arm statute's reach is not coextensive with what due process allows). This court previously analyzed the Massachusetts long-arm statute and the Due Process clause and determined that it had personal jurisdiction over the named plaintiffs Roy and Trumbull, who lived and worked in Massachusetts at the relevant time, but did not have personal jurisdiction over Plaintiff Sullivan-Blake, who resided and worked in Texas (Dkt. No. 41).

Because FedEx Ground is a Delaware corporation with its principal place of business in Pennsylvania, there is no dispute that Massachusetts courts do not have general jurisdiction. See Daimler AG v. Bauman , 571 U.S. 117, 137, 134 S.Ct. 746, 187 L.Ed.2d 624 (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, 134 S.Ct. 746 ) (alterations in original) (internal quotation marks omitted). See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472–73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (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, 104 S.Ct. 1868, 80 L.Ed.2d 404 (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....