Wilkerson v. Walgreens Specialty Pharmacy LLC

Docket NumberCV-21-01427-PHX-JAT
Decision Date27 October 2022
Citation637 F.Supp.3d 718
PartiesAndrea WILKERSON, Plaintiff, v. WALGREENS SPECIALTY PHARMACY LLC, et al., Defendants.
CourtU.S. District Court — District of Arizona

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.


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.


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."1

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).


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 California2 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).

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....

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