Wage & Hour Class and Collective Action Review — 2023 - Report - Page 29
collective action had no relation to the forum state, the court declined to certify a
nationwide collective action when it would subsequently have to dismiss the claims of
any individual outside of the forum state. Id. at *25-26. The court granted the
defendant’s partial motion to dismiss, and denied without prejudice the plaintiff’s motion
for conditional certification.
Similarly, in Hood, et al. v. Capstone Logistics LLC, 2022 U.S. Dist. LEXIS 435934
(W.D.N.C. Dec. 2, 2022), the plaintiff, an unloader for the logistics company, filed a
putative collective action alleging that the defendant failed to pay him and other
similarly-situated current and former employees across the nation the minimum wage
and all overtime hours, in violation of the FLSA. The defendant filed a motion to dismiss
or strike the plaintiff’s nationwide collective action claims, asserting that the court lacked
jurisdiction over all collective action members residing outside of North Carolina. The
court agreed. It held that since the defendant was headquartered in Delaware and has
its principal place of business in Georgia, the court could not assert general jurisdiction
as to claims against the defendant. Further, relying on the reasoning set forth in BristolMeyers Squibb, the court held that the non-resident putative collective action members’
claims did not arise out of defendant’s activities in North Carolina and thus it could not
assert specific jurisdiction over the defendant as to those claims. Accordingly, the court
found it had no jurisdiction over non-residents’ FLSA claims, granted defendant’s motion
to dismiss or strike, and dismissed the claims of every putative opt-in in that did not
reside in North Carolina.
Another growing trend used to defend against FLSA actions is to force the plaintiffs to
adhere to provisions that mandate they arbitrate their FLSA disputes on a bilateral,
individual basis. This procedural defense can often significantly delay and potentially
defeat conditional certification under 29 U.S.C. § 216(b) or class certification under Rule
23.
In Re A&D International, Inc., 33 F.4th 254 (5th Cir. 2022), the defendant sought a writ
of mandamus challenging the district court’s order to issue notice to the members of a
putative FLSA collective action. The district court conditionally certified a collective
action of exotic dancers working at the defendant’s gentleman’s club, despite the
defendant’s argument that all putative collective members were subject to valid
arbitration agreements. Id. at 257-58. The district court reasoned that the defendant had
not moved to compel arbitration, and therefore dissemination of the § 216(b) notice was
appropriate even if the individuals would later be subject to arbitration. Id. On appeal,
the Fifth Circuit found mandamus appropriate since the harm - the dissemination of
notice - would be irremediable in the absence of mandamus. Id. 256-58. The Fifth
Circuit also found that the defendant did not need to file a motion to compel because it
had sought to compel arbitration by opposing conditional certification. As a result, the
Fifth Circuit reversed the district court’s decision and granted a writ of mandamus.
Similarly, in Bogie, et al. v. Wonolo Inc., 2022 U.S. Dist. LEXIS 66878 (C.D. Cal. Apr. 8,
2022), the plaintiff, a temporary worker placed by the staffing company, claimed he was
misclassified as an independent contractor and was not paid for overtime in violation of
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
