Waters v. Day & Zimmermann NPS, Inc.

• Decision Date: 02 June 2020
• Docket Number: Civil Action No. 19-11585-NMG
• Parties: John WATERS, Plaintiff, v. DAY & ZIMMERMANN NPS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

464 F.Supp.3d 455

John WATERS, Plaintiff,

v.DAY & ZIMMERMANN NPS, INC., Defendant.

Civil Action No. 19-11585-NMG

United States District Court, D. Massachusetts.

Signed June 2, 2020

Michael Josephson, Pro Hac Vice, Richard M. Schreiber, Pro Hac Vice, Josephson Dunlap Law Firm, Michael K. Burke, Pro Hac Vice, Richard J. Burch, Pro Hac Vice, Bruckner Burch PLLC, Houston, TX, Philip J. Gordon, Gordon Law Group, Boston, MA, for Plaintiff.

Keri L. Engelman, Morgan Lewis & Bockius LLP, Boston, MA, Michael J. Puma, Pro Hac Vice, Morgan. Lewis & Bockius LLP, Philadelphia, PA, for Defendant.

MEMORANDUM & ORDER

GORTON, United States District Judge

This is a putative class action which arises under the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA"). Plaintiff John Waters ("plaintiff" or "Waters") alleges that defendant Day & Zimmermann NPS, Inc. ("defendant" or "Day & Zimmermann") has failed to pay him and other similarly situated employees overtime wages in violation of the statute. Day & Zimmermann has moved to dismiss the opt-in plaintiffs who are not residents of Massachusetts, contending that this Court lacks personal jurisdiction over those purported class members.

I. Background

Day & Zimmermann is a Delaware corporation with a principal place of business in Pennsylvania engaged in a range of businesses, including the provision of power plant services. Waters is a former Mechanical Supervisor who was employed by Day & Zimmermann in Plymouth, Massachusetts from January, 2018, until May, 2018. He alleges that defendant failed to pay him, and other similar situated workers, overtime at 1.5 times his regular hourly compensation for over 40 hours per week in violation of the FLSA (so-called "straight time for overtime"). In this action in which the putative class has not been conditionally certified, Waters seeks to represent all individuals who were employed by defendant, performed substantially similar job duties and did not receive proper overtime compensation.

The FLSA authorizes collective actions against employers alleged to have violated the statute. Unlike a Fed. R. Civ. P. 23 class action, the FLSA requires plaintiffs to opt-in affirmatively. A number of plaintiffs have filed written consents to join the putative collective action, many of whom reside outside of Massachusetts. Defendants contend, primarily based on the United States Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017) (" BMS"), that the Court lacks personal jurisdiction over the non-resident, opt-in plaintiffs and have moved to dismiss those plaintiffs pursuant to Fed. R. Civ. P. 12(b)(2). Plaintiffs rejoin that jurisdiction is proper in Massachusetts because this Court maintains personal jurisdiction over the named plaintiff Waters and the BMS decision does not apply to FLSA collective actions.

II. Motion to Dismiss For Lack of Personal Jurisdiction

a. Legal Standard

On a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), plaintiff bears the burden of showing that the Court has authority to exercise jurisdiction over defendants. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015). Where, as here, the Court is confronted with a motion to dismiss for lack of personal jurisdiction without first holding an evidentiary hearing, it applies the "prima facie" standard of review and takes the plaintiff's

properly documented evidentiary proffers as true and construe[s] them in the light most favorable to [plaintiff's] jurisdictional claim.

A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). A plaintiff cannot, however, rely on "unsupported allegations" and "must put forward evidence of specific facts to demonstrate jurisdiction exists." Id. (internal citations omitted).

Plaintiff's claims invoke the Court's federal question jurisdiction. 28 U.S.C. § 1331.

1. Personal Jurisdiction in Federal Question Cases

In federal question cases, the Due Process Clause of the Fifth Amendment of the United States Constitution requires only that a defendant maintain "adequate contacts" with the United States as a whole rather than with the forum state. United States v. Swiss Am. Bank, 274 F.3d 610, 618 (1st Cir. 2001). Plaintiff must, however, "ground its service of process in a federal statute or civil rule." Id.

An out-of-state defendant in federal-question cases may be properly served if the federal statute pursuant to which the claim is brought provides for nationwide service of process. Fed. R. Civ. P. 4(k)(1)(C). Where, as here, the federal statute is silent on the availability of nationwide service of process, such service is governed by the forum state's long-arm statute. Fed. R. Civ. P. 4(k)(1)(A). Accordingly, this Court must conduct the same personal jurisdiction inquiry as in a diversity case under the Massachusetts long-arm statute. See Johnson Creative Arts, Inc. v. Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984).

2. Personal Jurisdiction in Diversity Cases

In a diversity suit, this Court acts as "the functional equivalent of a state court sitting in the forum state." See Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). As such, to make a prima facie showing of personal jurisdiction in diversity cases, the plaintiff must demonstrate that the exercise of jurisdiction 1) is permitted by the Massachusetts long-arm statute, M.G.L. c. 223A § 3, and 2 ) coheres with the Due Process Clause of the Fourteenth Amendment of the United States Constitution by showing that each defendant has "minimum contacts" with Massachusetts. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).

The Court's jurisdiction may be either "specific" or "general." Swiss Am. Bank, 274 F.3d at 618. Specific jurisdiction requires a "demonstrable nexus" between the claims of the plaintiff and the defendant's contacts in the forum state. Id. Such contacts must demonstrate that the defendant "purposeful[ly] avail[ed] [itself] of the privilege of conducting activities in the forum state." Noonan v. Winston Co., 135 F.3d 85, 90 (1st Cir. 1998). General jurisdiction, on the other hand, exists when the defendant has engaged in "continuous and systematic activity, unrelated to the suit, in the forum state." Swiss Am. Bank, 274 F. 3d at 618.

3. Massachusetts Long-Arm Statute

The Massachusetts long-arm statute provides, in relevant part, that a court may exercise personal jurisdiction

over a person, who acts ... as to a cause of action in law or equity arising from the person's (a) transacting any business in this commonwealth [or] (b) contracting to supply services or things in this commonwealth ....

M.G.L. c. 223A, § 3.

The requirements of the Massachusetts long-arm statute are substantially similar to (although potentially more restrictive than) those imposed by the Due Process Clause of the Fourteenth Amendment. See Copia Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (noting that "[r]ecently, however, we have suggested that Massachusetts's long-arm statute might impose more restrictive limits on the exercise of personal jurisdiction than does the Constitution"). See also Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016).

4. Due Process Clause

The plaintiff must also demonstrate that the Court's exercise of personal jurisdiction over the defendant comports with the United States Constitution. See Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

To support the Court's exercise of specific personal jurisdiction over the Corporate Defendants, plaintiff must make an "affirmative showing" that 1) the litigation relates to or arises out of the defendant's contacts with the forum state; 2) the defendant purposefully availed itself of the privilege of conducting business in the forum state; and 3) jurisdiction over the defendant is reasonable under the circumstances. Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995) ; Phillips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999).

B. Application and Applicability of BMS to FLSA Collective Actions

At the outset, the Court notes (and plaintiff does not contend otherwise) that it does not have general jurisdiction over Day & Zimmermann, a corporation that is neither incorporated nor "essentially at home" in the Commonwealth. Daimler AG v. Bauman, 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Further, defendant does not contest that this Court has specific personal jurisdiction over plaintiff Waters given that he was employed by Day & Zimmermann in Massachusetts and the alleged failure to pay overtime occurred in Massachusetts.

Defendant's principal contention is that the Supreme Court's decision in BMS extends beyond mass tort actions to FLSA collective actions and divests this Court of specific jurisdiction over the non-Massachusetts, opt-in plaintiffs. This Court disagrees.

In BMS, approximately 600 plaintiffs, including both California residents and residents of other states, filed eight separate personal injury lawsuits in California state court against Bristol-Myers Squibb for damages caused by its blood thinner, Plavix. 137 S. Ct. at 1777. The plaintiffs structured their lawsuit as a coordinated, mass tort action pursuant to Cal. Civ. Proc. Code § 404. Id. Defendant argued that the California state court lacked personal jurisdiction over it with respect to the claims of the non-California plaintiffs who had not purchased, used or been injured by Plavix in California because those plaintiffs could not demonstrate that their claims arose out of defendant's contacts with California. Id. at 1783-84. Applying "settled principles of personal jurisdiction," the Supreme Court agreed. Id. at 1783. The Court found that there was no connection...