CHRISTA B. FISCHER, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED EMPLOYEES v. FEDERAL EXPRESS CORP.; FEDEX GROUND PACKAGE SYSTEM
No. 21-1683
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 26, 2022
PRECEDENTIAL
Before: RESTREPO, MATEY, and SCIRICA, Circuit Judges.
On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 5-19-cv-04924 District Judge: Honorable John M. Gallagher
Argued: January 26, 2022
(Filed: July 26, 2022)
Kelly A. Burgy Benjamin L. Davis, III Scott E. Nevin Suite 1700 36 South Charles Street Baltimore, MD 21201
Adam W. Hansen [ARGUED] Apollo Law 333 Washington Avenue North Suite 300 Minneapolis, MN 55401
Colin R. Reeves Apollo Law 1314 Pacific Street Brooklyn, NY 11216
Scott M. Pollins 800 Westdale Avenue Swarthmore, PA 19081
Counsel for Appellants Christa B. Fischer and Andre Saunders
Scott L. Nelson Public Citizen Litigation Group 1600 20th Street, N.W. Washington, DC 20009
Counsel for Amicus Appellant Public Citizen Inc
Frederick L. Douglas [ARGUED] Brandon D. Pettes Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd Floor Memphis, TN 38125
Counsel for Appellee Federal Express Corp
Benjamin Ferron, Esq. FedEx Ground Package System, Inc. 1000 FedEx Drive Moon Township, PA 15108
Counsel for Appellee FedEx
Counsel for Amicus Appellee Chamber of Commerce of the United States of America
Philip S. Goldberg, Esq. Shook Hardy & Bacon 1800 K. Street, NW Suite 1000 Washington, DC 20006
Counsel for Amicus Appellee International Association of Defense Counsel
OPINION OF THE COURT
SCIRICA, Circuit Judge
Appellant Christa Fischer, a Pennsylvania resident who worked for nearly ten years as a security specialist for Appellees Federal Express Corp. (“FedEx“) and FedEx Ground Package System (“FedEx Ground“), brought this collective action under
Two out-of-state former FedEx employees, Andre Saunders, from Maryland, and Andrew Rakowsky, from New York, submitted notices of consent, seeking to join Fischer‘s collective action. Saunders and Rakowsky both worked for FedEx in their home states but, other than FedEx‘s allegedly uniform nationwide employment practices, have no connection to Pennsylvania related to their claims. The District Court did not allow these two opt-in plaintiffs to join the suit, reasoning that, as would be true for a state court under Bristol-Myers Squibb Co. v. Superior Ct., ___ U.S. ___, 137 S. Ct. 1773 (2017), the district court lacked specific personal jurisdiction over FedEx with respect to the out-of-state plaintiffs’ claims.
We granted Appellants’ petition for interlocutory appeal to resolve whether, in an
We join the Sixth and Eighth Circuits and hold that, where the basis of personal jurisdiction in an
I.
Appellant Christa Fischer is a Pennsylvania resident who worked for FedEx in Lewisbury and Williamsport, Pennsylvania from approximately August 2005 to July 2019. On October 22, 2019, she filed a complaint against FedEx in the Eastern District of Pennsylvania, alleging FedEx misclassified employees in her position as exempt from the
On May 15, 2020, Fischer filed a motion for conditional certification and court-authorized notice. On July 17, 2020 and July 28, 2020, respectively, Andre Saunders, from Maryland, and Andrew Rakowsky, from New York, submitted notices of consent to join the litigation. Neither Saunders nor Rakowsky worked for FedEx in Pennsylvania. And neither has alleged any other connections to FedEx in Pennsylvania. On December 23, 2020, the trial judge granted Fischer‘s motion for conditional certification.
The District Court held that, because no federal statute authorizes nationwide service of process for opt-in plaintiffs in
II.
We begin with a brief summary of the Supreme Court‘s decision in Bristol-Myers. That suit involved claims that a Bristol-Myers-made drug, Plavix, had injured individuals who took it. The suit included eight separate complaints, collectively including over 600 named plaintiffs, all of which had been aggregated into a single mass action under a California state court aggregation rule. See Bristol-Myers, 137 S. Ct. at 1778. Only 86 plaintiffs were California residents; the other 592 were residents of 33 other states. Id. The nonresident plaintiffs “did not allege that they obtained Plavix through California physicians
Applying “settled principles regarding specific jurisdiction” under the
But the Supreme Court‘s decision in Bristol-Myers addressed a requirement placed on state courts by the
A.
The District Court held the analysis in Bristol-Myers applied to Fischer‘s
The District Court here concluded the “collective action opt-in plaintiffs are individual parties that join together and allege the same harm against the same defendant.” App. 17. ”
On appeal, Appellants contend the jurisdictional problems highlighted by the Supreme Court in Bristol-Myers are not present in an
B.
Appellants first contend opt-in plaintiffs’ claims in
We believe Appellants’ analogy from class actions to
Over the last half century, courts and Congress have constructed a careful balance designed to protect both the absent class members (by ensuring their interests are being adequately protected) and defendants (by making the res judicata implications of a class action clearer). See
If the requirements of
The Supreme Court itself has regularly entertained nationwide classes where the plaintiff relied on specific personal jurisdiction, without taking note of any procedural defects. For instance, Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), involved a nationwide class brought in California against Wal-Mart, which was headquartered in Arkansas and incorporated in Delaware. See Fourth Amended Complaint at ¶¶ 14, 90, Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004), ECF No. 767. Phillips Petroleum involved a nationwide class action brought in Kansas against a defendant headquartered in Oklahoma and incorporated in Delaware. 472 U.S. at 799. In neither case did the Supreme Court find any jurisdictional deficiencies due to the presence of claims by absent out-of-state class members.2
C.
With this in mind, we return to Appellant‘s analogy to the class action device. Appellants contend that because Fischer‘s claims are premised on FedEx‘s specific contacts with Pennsylvania, the trial court had specific personal jurisdiction over this matter, and any opt-in plaintiffs, like absent class action members, should be ignored for the purposes of the jurisdictional analysis.
Nevertheless, the statutory text of the
1.
“Statutory interpretation, as we always say, begins with the text.” Ross v. Blake, 578 U.S. 632, 638 (2016).
An action to recover the liability prescribed in the preceding sentences may be maintained against any employer (including a public agency) 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 become such a party and such consent is filed in the court in which such action is brought.
The difference between the language of
The
Furthermore, while courts often borrow language from the class action context when discussing the “certification” of a collective action, that is a misnomer. The
Once the class is certified,
These differences do not solely manifest themselves in the statutory text or during the certification process. The essentially individual character of an
Accordingly, from start to finish, FLSA collective actions are materially different from Rule 23 class actions with regard to the representative nature of the suits.
2.
This gulf between FLSA collective actions and Rule 23 class actions is drawn
The mass action at issue in Bristol-Myers was coordinated under
if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.
And unless otherwise specified, “all provisions of law applicable to civil actions generally apply to an action included in a coordination proceeding.”
Unlike Rule 23, the California Coordination Statute does not contemplate any parties acting in a representative manner. And like FLSA collective actions, the California Coordination Statute lacks the stringent procedural protections of Rule 23. The California Coordination Statute, like an FLSA collective action, still allows for each plaintiff to proceed with different claims.5 Coordination may be proper even if certain issues might be “heavily individualized.” Ford Motor Co. v. Superior Ct., 218 Cal. Rptr. 3d 185, 197 (Ct. App. 2017). Like the FLSA‘s use of the term “party plaintiffs,” the California Coordination Statute defines the parties to the coordinated action as each of the parties to the constituent actions. See
Based on this, the California Coordination Statute is better understood as a species of joinder rather than a class action device. See, e.g., Jasmine Networks, Inc. v. Superior Ct., 103 Cal. Rptr. 3d 426, 436-37 (Ct. App. 2009) (comparing
3.
The history of the FLSA collective action device further supports our conclusion
Over fifty years have passed since then, and Congress has had opportunities to revise the FLSA collective action device to bring it in line with the modern Rule 23. Congress has revised § 216 multiple times, including as recently as 2018. See, e.g., Consolidated Appropriations Act, Pub. L. No. 115-141, Div. S, Title XII, § 1201(b), 132 Stat. 1148 (2018). The fact Congress has chosen not to bring § 216 in line with Rule 23, indicates the statute should not be read to conform to Rule 23. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009) (“When Congress amends one statutory provision but not another, it is presumed to have acted intentionally . . . .“).
4.
Given all this, it is unsurprising that the weight of prior decisions supports finding that FLSA collective actions cannot be analogized to Rule 23 class actions as Appellants urge. When the Supreme Court has had occasion to compare the two devices, it has stated “Rule 23 actions are fundamentally different from collective actions under the FLSA.” Genesis Healthcare Corp., 569 U.S. at 74. This principle has been echoed by many of our sister courts. See Canaday, 9 F.4th at 402 (stating that the significant differences between Rule 23 and the FLSA “require different approaches to personal jurisdiction“); Scott, 954 F.3d at 519 (noting differences between “the language and structure of § 216(b) and the modern Rule 23, which bear little resemblance to each other“); Campbell, 903 F.3d at 1105 (stating a collective action “is not a comparable form of representative action” and “is more accurately described as a kind of mass action, in which aggrieved workers act as a collective of individual plaintiffs with individual cases—capitalizing on efficiencies of scale, but without necessarily permitting a specific, named representative to control the
All told, the text, history, and weight of the case law uniformly supports the view that FLSA collective actions are fundamentally different from Rule 23 class actions. At bottom, an FLSA collective action proceeds “as a kind of mass action, in which aggrieved workers act as a collective of individual plaintiffs with individual cases.” Campbell, 903 F.3d at 1105. In contrast, a Rule 23 class action, once certified, is directed by the named plaintiff and class counsel, representing the absent class members, under the supervision of the court. See Canaday, 9 F.4th at 403; Lyngaas, 992 F.3d at 435. The Supreme Court has cautioned that courts “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008). We would be doing that if we were to expand the allowances given to class actions due to their carefully balanced structure, to the FLSA collective action device. Accordingly, we believe an FLSA collective action should operate like an individual in personam suit for purposes of personal jurisdiction, meaning the district court must have personal jurisdiction over the defendant with respect to each opt-in plaintiff‘s individual claim.
D.
Having determined courts need personal jurisdiction over a defendant with respect to all plaintiffs’ claims in FLSA actions, we need to decide what is required of a federal district court to do so. Under
We then consider alternative theories whereby opt-in plaintiffs might use
1.
At the highest level, the potential outer limits of the personal jurisdictional authority of a federal court are defined by the Due Process Clause of the Fifth Amendment. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368-69 (3d Cir. 2002).
Appellants contend that in the absence of a source of law which limits personal jurisdiction, federal courts are free to exercise jurisdiction to the maximum extent permissible under the Fifth Amendment.7 But the personal jurisdictional limits in the Fifth and Fourteenth Amendments are not self-executing. See S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir. 2007) (“The power to exercise jurisdiction nationwide is not self-executing. Mere contacts with the jurisdiction, even when coupled with some kind of actual notice, are not sufficient to invest the district court with in personam jurisdiction over a party-in-interest.“). For a court to exercise personal jurisdiction over a defendant, the defendant must be served process, alerting the defendant to the pendency of the suit and the nature of the claims against her. See Omni Capital Int‘l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.“) (quoting Miss. Publ‘g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988) (“Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.“); Wright & Miller, Federal Practice & Procedure, § 1063 (describing the primary function of service of process as “provid[ing] the mechanism for bringing notice of the commencement of an action to the defendant‘s attention and to provide a ritual that
marks the court‘s assertion of jurisdiction over the lawsuit“).
In Omni Capital, the Supreme Court held, in the context of establishing personal jurisdiction over a defendant at the inception of a suit where the defendant had not been served or consented to jurisdiction, federal courts could not look directly to the Fifth Amendment to assess if jurisdiction would be proper. See Omni Capital, 484 U.S. at 104 (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.“). Accordingly, “before a court may exercise personal jurisdiction over a defendant,” in the absence of consent, “there must be authorization for service of summons on the defendant,” even in situations where the Fifth Amendment itself does not prohibit the exercise of personal jurisdiction. Omni Capital, 484 U.S. at 104. Specifically, the Court identified Rule 4 of the Federal Rules of Civil Procedure as the primary Congressionally authorized mechanism by which a federal court could serve process and thus exercise personal jurisdiction over a defendant. Id. at 104-05. It would appear, therefore, the Supreme Court declined to fashion a personal jurisdiction rule unique to federal courts in the absence of authorization from Congress, even if the rule would satisfy the Fifth Amendment. Id. at 104. And the Court declined to exercise common law authority to craft a jurisdictional rule where Congress had not authorized
Accordingly, to determine if personal jurisdiction is proper in a traditional in personam suit we begin with the source of law authorizing the service of process whereby plaintiffs seek to establish personal jurisdiction, which in federal courts is
2.
For a defendant to be “subject to the jurisdiction” of a state court, the exercise of personal jurisdiction must be authorized by state law, such as by the
The Fourteenth Amendment permits two types of personal jurisdiction: general personal jurisdiction and specific personal jurisdiction. Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919 (2011). As the names suggest, general personal jurisdiction is broader than specific personal jurisdiction, reaching all potential claims against the defendant regardless of their connection to the state. By contrast, specific personal jurisdiction only reaches claims that arise out of or relate to the minimum contacts a plaintiff can demonstrate between the defendant and the forum state. See Bristol-Myers, 137 S. Ct. at 1781 (“What is needed . . . is a connection between the forum and the specific claims at issue.“).
Here, the Appellants cannot establish general personal jurisdiction over FedEx under
And Appellants fare no better with specific personal jurisdiction. Fischer was able to establish personal jurisdiction over FedEx with respect to her claims in Pennsylvania because FedEx operates locations in Pennsylvania (i.e., there were sufficient minimum contacts with the state), and her claims arose out of her work for FedEx in the Pennsylvania locations (i.e., the claims arose out of or related to the minimum contacts). By contrast, the opt-in plaintiffs lived in New York and Maryland. They were employed by FedEx in New York and Maryland. And they do not contend they had any connection to, let alone injury arising from, FedEx‘s activities in Pennsylvania. Their claims entirely relate to their treatment by FedEx in their respective home states.
Appellants claim this application of
Appellants make two arguments in attempting to tie the claims of the opt-in plaintiffs to FedEx‘s contacts with Pennsylvania. Both are precluded by Bristol-Myers. First, Appellants contend that all plaintiffs “suffered the same harm stemming from the same unlawful policy.” Appellants’ Br. at 56. The Supreme Court in Bristol-Myers considered an analogous argument and concluded that the mere fact that other plaintiffs allegedly suffered the same injury from the same source “does not allow the [forum] to assert specific jurisdiction over the nonresidents’ claims.” Bristol-Myers, 137 S. Ct. at 1781. What is required is a showing that the out-of-state plaintiffs’ injuries have a connection to the forum state, not just that the injuries are similar to those of in-state plaintiffs. Second, Appellants assert that by creating the FLSA collective action device, Congress has defined a legal relationship between out-of-state opt-in plaintiffs and in-state plaintiffs, such that the out-of-state plaintiffs’ claims, once joined in the suit, are related to the employer‘s activities in the forum state. But merely being named a party in a suit cannot alone constitute a legal relationship sufficient to establish personal jurisdiction. Indeed, Bristol-Myers forecloses this argument: The legal relationship between the plaintiffs defined by the California mass action device at issue in the case made no difference for the Court‘s personal jurisdiction analysis.
3.
Separate from personal jurisdiction tied to the initial service of process under
Congress can provide federal courts a statutory mechanism through which to establish personal jurisdiction, so long as that exercise does not exceed the bounds of the Fifth Amendment. Personal jurisdiction established pursuant to
But the drafters of the FLSA did not provide any such mechanism to establish personal jurisdiction in
The “similarly situated” language in
For these reasons, we see no plausible way to read
4.
Since
True, unlike
Indeed, we think Omni Capital forecloses reading
Consistent with our reading of
Ultimately, we interpret the practice of allowing service of notice under
Appellants point to other joinder rules that they suggest do not require service of a summons under
***
For these reasons, like the out-of-state plaintiffs in Bristol-Myers, the opt-in plaintiffs in FLSA collective actions must satisfy the personal jurisdiction requirements of the Fourteenth Amendment to join the suit. FLSA collective actions are in personam suits and, unlike Rule 23 class actions, are not exempted from traditional personal jurisdiction requirements.
These traditional personal jurisdiction requirements begin with a source of law authorizing the exercise of personal jurisdiction. Where no federal law authorizes the exercise of personal jurisdiction, plaintiffs must satisfy the requirements of
The out-of-state opt-in plaintiffs here have not demonstrated their claims arise out of or relate to FedEx‘s minimum contacts with Pennsylvania as is required by the Fourteenth Amendment. Accordingly, plaintiffs have not established personal jurisdiction
III.
Appellants caution that affirming the trial court‘s decision would, at best, cause the proliferation of duplicative FLSA actions against the same employer or, at worst, prevent certain meritorious suits from being brought in the first place.
But, as an initial matter, potential plaintiffs retain the ability to bring nationwide collective actions in a court that can exercise general personal jurisdiction over their employer. See Canaday, 9 F.4th at 400-01. Appellants express concerns about their practical ability to do so. But these same concerns were also raised by Justice Sotomayor in her dissent in Bristol-Myers. Bristol-Myers, 137 S. Ct. at 1789 (Sotomayor, J., dissenting). The same argument should not prevail here when it did not do so before the Supreme Court.
Moreover, the Multidistrict Litigation statute also may present a potential avenue for the practical coordination of certain nationwide FLSA suits. The Judicial Panel on Multidistrict Litigation has centralized similar FLSA cases when there is duplicative litigation involving common questions of fact across the country. See, e.g., In re Lowe‘s Cos., Inc. Fair Labor Standards Act & Wage & Hour Litig., 481 F. Supp. 3d 1332 (U.S.J.P.M.L. 2020); In re Amazon.com, Inc., Fulfillment Ctr. Fair Labor Standards Act & Wage & Hour Litig., 999 F. Supp. 2d 1375 (U.S.J.P.M.L. 2014). Indeed, there is evidence to suggest the drafters of the MDL statute envisioned it as a vehicle for these sorts of claims. See Andrew D. Bradt, “A Radical Proposal“: The Multidistrict Litigation Act of 1968, 165 U. Pa. L. Rev. 831, 867-69 (2017) (explaining the origins of the MDL statute). We agree with the Sixth Circuit that “[m]ultidistrict litigation implicates a different statute, a different history, and a different body of caselaw [than the FLSA].” Canaday, 9 F. 4th at 403-04 (internal citations omitted).
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.