Waters v. Day & Zimmermann NPS, Inc.

Decision Date13 January 2022
Docket NumberNo. 20-1997,20-1997
Citation23 F.4th 84
Parties John WATERS, individually and for others similarly situated, Plaintiff, Appellee, v. DAY & ZIMMERMANN NPS, INC., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

David B. Salmons, with whom Michael J. Puma, James D. Nelson, and Morgan, Lewis & Bockius LLP were on brief, for appellant.

Richard J. (Rex) Burch, with whom Michael A. Josephson, Richard M. Schreiber, Taylor A. Jones, Bruckner Burch PLLC, and Josephson Dunlap LLP were on brief, for appellee.

Daryl Joseffer, Jonathan D. Urick, Nicole A. Saharsky, Andrew J. Pincus, Archis A. Parasharami, Minh Nguyen-Dang, and Mayer Brown LLP on brief for Chamber of Commerce of the United States of America, amicus curiae.

Before Thompson, Dyk,* and Barron, Circuit Judges.

DYK, Circuit Judge.

John Waters filed suit for overtime wages pursuant to § 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 – 219, in the United States District Court for the District of Massachusetts. The defendant was Day & Zimmermann ("D&Z"), a company incorporated in Delaware that maintains its principal place of business in Pennsylvania.

Waters's suit alleged that D&Z failed to pay him and other similarly situated employees and former employees their FLSA-required overtime wages. In accord with the FLSA's procedures governing what are often referred to as "collective actions," more than 100 current and former D&Z employees from around the country filed "opt-in" consent forms with the district court electing to participate as plaintiffs in Waters' suit.

D&Z moved to dismiss for lack of personal jurisdiction. This motion was based on Bristol-Myers Squibb v. Superior Court of California ("BMS"), ––– U.S. ––––, 137 S. Ct. 1773, 1779, 1781, 198 L.Ed.2d 395 (2017), holding that in view of the Fourteenth Amendment, state courts cannot entertain a state-law mass action—an aggregation of individual actions—if it includes out-of-state plaintiffs with no connection to the forum state. Here, the claims subject to the motion to dismiss were the claims of the current and former D&Z employees who had opted in to the collective action but, who, unlike Waters, had worked for the company outside of Massachusetts. Notwithstanding that D&Z had been properly served with process, it claimed that under BMS, these claims could not be brought in a Massachusetts federal court, even though a federal court's jurisdiction is determined by the Fifth Amendment Due Process Clause. This is so, D&Z argued, because Federal Rule of Civil Procedure ("FRCP" or "Rule") 4(k)(1) independently limits a federal court's exercise of personal jurisdiction with respect to out-of-state opt-in claimants added after service of process has been effectuated. The district court denied D&Z's motion, declining to extend BMS's personal jurisdiction requirements to FLSA cases in federal court. Waters v. Day & Zimmermann NPS, Inc., 464 F. Supp. 3d 455, 461 (D. Mass. 2020).

On this interlocutory appeal, we now affirm the district court's denial of D&Z's motion.1


The following facts are not in dispute. Waters formerly worked for D&Z in Plymouth, Massachusetts. He served as a mechanical supervisor for the company, which provides services to power plants.

On July 22, 2019, Waters filed an FLSA-based "collective action" complaint against D&Z. That complaint alleged that D&Z violated the FLSA's overtime-wage provisions, see § 207(a)(1), because it "paid Waters and other workers like him the same hourly rate for all hours worked, including those in excess of 40 in a workweek." Waters sought unpaid overtime wages as liquidated damages, and attorneys' fees on behalf of himself and "the Putative Class Members."

About two weeks later, on August 8, 2019, Waters served the complaint on D&Z pursuant to 4(c) of the FRCP, utilizing the provisions of Massachusetts' long-arm statute. Mass. Gen. Laws ch. 223A, § 3. The following month, others claiming to be current or former D&Z employees filed written "opt-in" consent forms pursuant to § 216(b) in the district court to participate in the collective action that Waters had filed.

The standard opt-in consent form contained the following language:

1. I hereby consent to participate in a collective action lawsuit against Day & Zimmermann to pursue my claims of unpaid overtime during the time that I worked with the company.
2. I understand that this lawsuit is brought under the Fair Labor Standards Act, and consent to be bound by the Court's decision.
3. I designate the law firm and attorneys at JOSEPHSON DUNLAP and BRUCKNER BURCH as my attorneys to prosecute my wage claims.
4. I authorize the law firm and attorneys at JOSEPHSON DUNLAP and BRUCKNER BURCH to use this consent to file my claim in a separate lawsuit, class/collective action, or arbitration against the company.

To date, over 100 opt-ins claiming to be current and former D&Z employees have filed consent forms electing to participate in the FLSA collective action that Waters filed.

On September 12, 2019, D&Z moved pursuant to FRCP 12(b)(2) to dismiss the claims of those opt-ins who had not been employed by D&Z in Massachusetts. D&Z explained that, in so moving, it did not seek to "challenge personal jurisdiction as to the named Plaintiff's [i.e., Waters's] individual claim, as he allege[d] that he previously worked for [D&Z] in Massachusetts." Nor did D&Z contend that it had not properly been served with process or that anyone other than the named plaintiff was required to serve D&Z with process. Instead, D&Z's motion and accompanying memorandum of law claimed that BMS required the dismissal of the opt-in claims because the district court lacked either general or specific personal jurisdiction as to those claims.

In BMS, the Supreme Court held that the Fourteenth Amendment's Due Process Clause prevented a California state court from exercising specific personal jurisdiction over nonresident plaintiffs' state-law claims when those claims had no connection to the forum state. 137 S. Ct. at 1781. The decision expressly reserved the separate question "whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court." Id. at 1784.

On June 2, 2020, the district court here denied D&Z's motion to dismiss the opt-in claims based on BMS. It determined that the Supreme Court's ruling in that case had no bearing on its exercise of personal jurisdiction over the opt-ins because Waters's suit was brought in federal court pursuant to the FLSA's provisions governing collective actions, and the opt-ins had joined his suit in accord with that statute's procedures for doing so. Waters, 464 F. Supp. 3d at 461. In reaching this decision, the district court noted that BMS was "specifically limited to ‘the due process limits on the exercise of specific jurisdiction by a State’ " and did not resolve "whether the Fifth Amendment imposes the same restrictions" on a federal court. Id. (quoting BMS, 137 S. Ct. at 1783–84 ).

Following the denial, D&Z moved in the district court for a certificate of appealability under 28 U.S.C. § 1292(b), which the district court granted, see Waters v. Day & Zimmermann NPS, Inc., No. 19-cv-11585-NMG, 2020 WL 4754984, at *1 (D. Mass. Aug. 14, 2020). This court granted D&Z's timely petition for permission to bring an interlocutory appeal on October 14, 2020.2 We have appellate jurisdiction under 28 U.S.C. § 1292(b).


Before addressing the merits of D&Z's appeal, we first consider an issue that neither party raises, but that could affect our appellate jurisdiction: whether the opt-in plaintiffs were parties to the action in the district court. If the dismissed opt-in plaintiffs were not parties to the action, we may lack jurisdiction to consider the propriety of their dismissal. See Campbell v. City of Los Angeles, 903 F.3d 1090, 1105 (9th Cir. 2018) ("All ‘those that properly become parties[ ] may appeal an adverse judgment.’ " (quoting Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) )). The opt-ins' party status hinges on the question whether they become parties as a result of filing opt-in notices, or they could become parties only after the district court conditionally certified that they were "similarly situated."

The FLSA provides that employees serving as named plaintiffs can bring collective actions on "behalf of ... themselves and other employees similarly situated." § 216(b). The FLSA does not provide for conditional certification, but in the "absence of statutory or case law guidance," district courts at or around the pleading stage have developed a "loose consensus" regarding conditional certification procedures. Campbell, 903 F.3d at 1108–09. This process entails a "lenient" review of the pleadings, declarations, or other limited evidence, id. at 1109 (citation omitted), to assess whether the "proposed members of a collective are similar enough to receive notice of the pending action," Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 436 (5th Cir. 2021).

Conditional certification has no bearing on whether the opt-in plaintiffs become parties to the action. The FLSA provides that "[n]o 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." § 216(b). This provision makes clear that in collective actions, opt-in plaintiffs become parties to the proceedings when they give "consent in writing to become such a party and such consent is filed in the court."3 Id.

Conditional certification cannot be the cornerstone of party status because it is not a statutory requirement; rather, certification "is a product of interstitial judicial lawmaking or ad hoc district court discretion ... nothing in section 216(b) expressly compels it." Campbell, 903 F.3d at 1100 ; see also Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010) ("Thus ‘certification’ is neither necessary nor sufficient...

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