Speight v. Labor Source, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

NO. 4:21-CV-112-FL

BILLY SPEIGHT, Individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

) ORDER

v. )

)

LABOR SOURCE, LLC, )

)

Defendant. )

This matter is before the court on plaintiff’s motion to certify conditionally this case as a

collective action under the Fair Labor Standards Act, 29 U.S.C. § 203 et seq. (“FLSA”), (DE 7),

and defendant’s partial motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule

of Civil Procedure 12(b)(2) (DE 14). The issues raised are ripe for ruling. For the following

reasons, defendant’s motion is granted in part and denied in part and plaintiff’s motion is denied

without prejudice.

STATEMENT OF THE CASE

Plaintiff, a former employee of defendant, a staffing agency, commenced this action on

August 12, 2021, asserting claims on behalf of himself and an almost nationwide collective of

defendant’s current and former employees under the FLSA,1 and claims on behalf of himself and

1 Plaintiff does not request that the collective include defendant’s current and former employees in Minnesota.

As he explains in his briefing, these employees “are already covered by a currently-pending lawsuit” in the United

States District Court for the District of Minnesota. (Pl.’s Mem. (DE 8) at 2 n.1 (citing Murphy v. Labor Source, LLC,

No. 19-CV-01929-ECW (D. Minn. filed July 23, 2019))).

a statewide class of defendant’s current and former employees under the North Carolina Wage and

Hour Act, N.C. Gen. Stat. § 95-25.1 et seq., pursuant to Rule 23 of the Federal Rules of Civil

Procedure. Plaintiff alleges that defendant has failed to pay him and other employees the required

wages. Plaintiff seeks declaratory relief, certification of a FLSA collective and a Rule 23 class,

compensatory damages, and attorneys’ fees and costs,

Shortly after initiating suit, plaintiff moved to certify conditionally a FLSA collective

defined as

[a]ll current and former hourly, non-exempt employees including, but not limited

to, laborers, non-exempt team leads, non-commercial drivers, technicians,

carpenters, apprentices, cleaning crew, plumbers, welders, and other laborers with

similar job duties employed by [d]efendant throughout the United States (except

for the State of Minnesota), within the three years preceding the filing of this

[a]ction until final resolution of the case.

(Compl. ¶ 46), and for notice to issue to potential collective members.2 Plaintiff also moves to toll

the statute of limitations on putative collective-members’ FLSA claims. In support of this motion,

plaintiff relies on: declarations of plaintiff, Nikia Maye (“Maye”), and Deantwone Norris

(“Norris”), former employees of defendant, as well as William Hogg, an associate attorney at

plaintiff’s counsel’s law firm, and deposition testimony from a case in the United States District

Court for the District of Minnesota entitled Murphy v. Labor Source, LLC, No. 19-CV-01929-

ECW, (the “Murphy suit”), of Marcquise Murphy, one of the plaintiffs in that suit. Plaintiff also

2 Plaintiff does not seek to certify this matter as a Rule 23 class action yet, although the complaint defines the

putative class as

[a]ll current and former hourly, non-exempt employees, including but not limited to, laborers, non-

exempt team leads, non-commercial drivers, technicians, carpenters, apprentices, cleaning crew,

plumbers, welders, and other laborers with similar job duties employed by [d]efendant within the

State of North Carolina at any time during the two years preceding the filing of this [c]omplaint

through final resolution of the action.

(Compl. ¶ 63).

appends to his motion proposed notice, reminder, and opt-in forms related to the putative

collective, should the motion be granted.

Defendant’s partial motion to dismiss for the court’s lack of personal jurisdiction is directed

at claims brought on behalf of any putative member of the collective who is not a resident of North

Carolina or did not work for defendant in North Carolina. Defendant relies upon declaration of

Robert Reese (“Reese”), its chief operating officer, in furtherance of its motion to dismiss, and,

again, in its opposition to conditional certification.

STATEMENT OF FACTS

The facts alleged in plaintiff’s complaint may be summarized as follows.

Plaintiff, a resident of Walstonburg, North Carolina, was employed by defendant between

January and September of 2019. Defendant, a staffing agency with its principal office in Olathe,

Kansas, and other main offices in Kansas City, St. Louis, San Antonio, Dallas, Houston,

Brownsville, Orlando, and Pittsburgh, hires workers, generally manual laborers, to perform work

on a project-by-project basis in various states. For example, defendant, through its local office in

Goldsboro, North Carolina, tasked plaintiff with completing work as a manual laborer and non-

commercial driver on projects in North Carolina, Florida, Pennsylvania, Ohio, Nebraska, West

Virginia, and Virginia.

Plaintiff and the other employees worked on the projects for the benefit of defendant’s

customers. As an example from plaintiff’s experience, he was hired by defendant to complete a

job in Morehead City, North Carolina, (the “Morehead City project”) on behalf of defendant’s

customer, BluSky Restoration Contractors LLC (“BluSky”). The Morehead City project is

exemplary for all of the following described allegations.

After being hired for a project by defendant, the laborers are transported by passenger van

or bus from the local office to the worksite. These worksites are allegedly often “hundreds of

miles away from the workers’ homes.” (Compl. ¶ 30). The workers are not compensated for their

time traveling and incur expenses during travel, including gas, tolls, and food. In fact, defendant

deducts between $7 and $20 a week from each of its workers’ pay, in part, for these expenses and

for “shuttle fees.” (Id. ¶ 34).

Once the workers arrive near the worksite, they stay at local accommodations, with four to

six workers per two-bed room and with no means of traveling elsewhere. Akin to the travel

expenses, workers are not reimbursed for any lodging expense, and, instead, a lodging fee is

deducted from their weekly pay as part of the deduction mentioned above. This fee is deducted

from their pay regardless of the actual room rate charged or number of workers per room.

A “crew leader” oversees defendant’s workers once they are at the worksite. (Id. ¶ 31).

This crew leader is typically a direct employee of defendant, who is supervised and directed by

the relevant customer for the project. He or she helps keep track of the hours worked by the

workers by requiring them “to sign a daily time sheet at the end of their shift.” (Id.). The customer

then collects and compiles the time sheets before submitting them to defendant, which then issues

wages to the workers based thereon. However, plaintiff alleges that these time sheets are often

inaccurate due to the customer’s artificial reduction or underreporting of the hours the laborers

worked. Moreover, defendant allegedly accepts the time sheets “at face value” and “does nothing

to ensure the time sheets reflect the actual hours worked,” despite plaintiff and others informing

defendant that the hours they worked were being underreported. (Id. ¶¶ 32, 36).

According to the complaint, the inaccuracies in the time sheets are difficult for the workers

to contest because they do not receive typical itemized wage statements and paychecks. Defendant

compensates its workers through a “pre-paid debit card system” and rarely provides a wage

statement at all, let alone “ready access to itemized wage statements that list the total hours worked

and total wages paid.” (Id.). Employees’ wage statements are only “available through an online

subscription which requires [them] to pay a fee to view their wage statements,” which, even then,

“are inaccurate, incomplete, and do not itemize all deductions taken from [their] wages.” (Id. ¶

37)

Plaintiff alleges that the travel and lodging deductions combined with the inaccurate

reporting of hours worked led to plaintiff, and leads to those similarly situated, being paid below

the FLSA-mandated minimum wage and not being paid time-and-a-half for overtime. Plaintiff

alleges that at each of the projects he worked on, defendant “instituted and implemented the[se]

same policies and practices regarding timekeeping, recordkeeping, lodging, and expense

deductions.” (Id. ¶ 35). Plaintiff claims that his experience with defendant is representative of that

of the putative FLSA collective and putative Rule 23 class.

Additional alleged facts pertinent to the motion will be discussed in the analysis below.

COURT’S DISCUSSION

A. Defendant’s Motion (DE 14)

1. Standard of Review

Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of a claim for lack of personal

jurisdiction. “When a district court considers a question of personal jurisdiction based on the

contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima

facie showing in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR,

S.A., 773 F.3d 553, 558 (4th Cir. 2014).3 At this stage, the court “must construe all relevant

3 Internal citations and quotation marks are omitted from all citations unless otherwise specified.

pleading allegations in the light most favorable to plaintiff, assume credibility, and draw the most

favorable inferences for the existence of jurisdiction.” Combs v. Bakker, 886 F.2d 673, 676 (4th

Cir. 1989); see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (“[T]he district court

must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the

plaintiff’s favor.”).

2. Analysis

Defendant argues that plaintiff’s FLSA claims brought on behalf of putative collective

members who worked for defendant outside of North Carolina or who are not residents of North

Carolina must be dismissed for lack of personal jurisdiction. The court agrees, in part, as set forth

below.

“[T]here are two paths permitting a court to assert personal jurisdiction over a nonresident

defendant.” Universal Leather, 773 F.3d at 559. “[A] plaintiff must show (1) . . . general

jurisdiction over the defendant by demonstrating the defendant’s continuous and systematic

contact with the State”; or “(2) . . . specific jurisdiction over the defendant by demonstrating that

the defendant purposely established minimum contacts in the forum state such that it should

reasonably anticipate being haled into court there on a claim arising out of those contacts.” Sneha

Media & Ent., LLC v. Associated Broad. Co. P Ltd., 911 F.3d 192, 198 (4th Cir. 2018).4 “General

jurisdiction . . . extends to any and all claims brought against a defendant.” Ford Motor Co. v.

Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021). However, specific jurisdiction is more

limited, as it requires that the specific “claims . . . arise out of or relate to the defendant’s contacts

4 Although Rule 4(k) of the Federal Rules of Civil Procedure allows for personal jurisdiction over a defendant

when accomplished by “[s]erving a summons . . . authorized by a federal statute,” Fed. R. Civ. P. 4(k)(1)(C), and

when “the defendant is not subject to jurisdiction in any state’s court of general jurisdiction[] and . . . exercising

jurisdiction is consistent with the United States Constitution and laws,” if defendant is served with summons, Fed. R.

Civ. P. 4(k)(2), the parties do not argue that either is implicated here.

with the forum.” Id.; Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)

(“[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the

very controversy that establishes jurisdiction.”).

Here, with respect to general jurisdiction, the complaint does not allege sufficient contacts

by defendant with North Carolina for exercise of general jurisdiction. (See, e.g., Compl. (DE 1)

¶¶ 14, 19). Plaintiff does not contend otherwise. (See Pl.’s Resp. (DE 20) at 8). Thus, the court

turns to an analysis of specific jurisdiction.

“To determine whether specific jurisdiction lies in the forum state,” the court “consider[s]

(1) the extent to which the defendant purposefully availed itself of the privilege of conducting

activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the

State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.”

Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 189 (4th Cir. 2016). The relevant considerations

as to the first prong of the inquiry are

(1) whether the defendant maintained offices or agents in the State; (2) whether the

defendant maintained property in the State; (3) whether the defendant reached into

the State to solicit or initiate business; (4) whether the defendant deliberately

engaged in significant or long-term business activities in the State; (5) whether a

choice of law clause selects the law of the State; (6) whether the defendant made

in-person contact with a resident of the State regarding the business relationship;

(7) whether the relevant contracts required performance of duties in the State; and

(8) the nature, quality, and extent of the parties’ communications about the business

being transacted.

Sneha Media, 911 F.3d at 198-99. Here, according to the complaint, defendant maintained an

office in Goldsboro in the state, initiated business in the state through hiring of workers therein

and completion of projects on behalf of its customers, such as the Morehead City project, in the

state, and otherwise purposefully availed itself of the privilege of conducting business in North

Carolina. (See Compl. ¶¶ 2, 14, 16, 19, 28-29).

However, any part of plaintiff’s FLSA claims on behalf of putative collective members

who did not work in North Carolina, were not hired in North Carolina, or whose employment by

defendant was not otherwise related to North Carolina, (see e.g., Compl. ¶¶ 45-46), does not “arise

out of those activities directed at the State.” Perdue Foods, 814 F.3d at 189. Those claims fail the

requirements of specific jurisdiction where “what is needed . . . is a connection between the forum

and the specific claims at issue.” Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct.

1773, 1781 (2017). Accordingly, where plaintiff fails to allege such connections to the forum in

regard to those claims, the court lacks specific personal jurisdiction over defendant as to the

pertinent claims. See Perdue Foods, 814 F.3d at 189 (explaining that “[t]he plaintiff must prevail

on each prong” of tripartite specific-jurisdiction analysis to demonstrate personal jurisdiction).

In sum, defendant’s motion must be granted in that part relating to FLSA claims brought

on behalf of putative collective members who did not work in North Carolina, were not hired in

North Carolina, or whose employment by defendant was not otherwise related to North Carolina.5

Plaintiff raises a number of arguments contesting this conclusion, which are unavailing.

Plaintiff argues that personal jurisdiction is only analyzed at level of the suit as a whole, and,

relatedly, in the context of FLSA collective actions, that independent bases for exercise of personal

jurisdiction over defendant as to opt-in plaintiffs are not required. Plaintiff further contends that

even if personal jurisdiction questions are raised by the putative opt-plaintiffs’ claims, the analysis

is controlled by the Fifth Amendment and related principles, rather than the Fourteenth

Amendment and its related minimum-contacts standard. Finally, plaintiff rests on the purported

5 The court denies defendant’s motion in that remaining part where it is based upon a category of “nonresident”

putative collective members. Although defendant frames its motion in part as targeting the claims of nonresidents of

the state, this category sweeps too broadly. There being no inherent reason on the alleged facts that a nonresident

employee’s FLSA claim could not arise from defendant’s activities aimed at the state, such as where a nonresident

worker comes into North Carolina to work, (see, e.g., Compl. ¶ 29), the court denies defendant’s motion in that part.

policies undergirding the FLSA as demanding a different conclusion here. The court addresses

each in turn.

a. Suit/Claim Distinction

Plaintiff argues that considering the court’s exercise of specific personal jurisdiction over

an out-of-state defendant as it relates to FLSA opt-in plaintiffs’ claims against the defendant

impermissibly focuses on the “claim” rather than the “suit.” (Pl.’s Mem. (DE 8) at 15; Pl.’s Resp.

(DE 20) at 10-13). Often courts do discuss personal jurisdiction in terms of personal jurisdiction

over the suit as a whole against a defendant, or personal jurisdiction over the defendant writ large.

See, e.g., Daimler AG v. Bauman, 571 U.S. 117, 127 (2014); Perdue, 814 F.3d at 189.

This linguistic choice, however, does not negate that courts, just as regularly, analyze

personal jurisdiction, and particularly, specific personal jurisdiction, in terms of “claims.” See,

e.g., Combs, 886 F.2d at 675 (considering whether “the district court had grounds for personal

jurisdiction as to all or any of the claims” (emphasis added)); ESAB Grp., Inc. v. Zurich Ins. PLC,

685 F.3d 376, 391 (4th Cir. 2012) (explaining that the specific personal jurisdiction inquiry asks,

in part, “whether the plaintiff[’s] claims arise out of those activities [by defendant] directed at the

State”); PTA-FLA, Inc. v. ZTE Corp., 715 F. App’x 237, 242 (4th Cir. 2017) (“For a court to

exercise specific jurisdiction over a claim, there must be ‘an affiliatio[n] between the forum and

the underlying controversy.’” (alteration in original) (quoting Goodyear, 564 U.S. at 919)); see

also Vallone v. CJS Sols. Grp., LLC, 9 F.4th 861, 865 (8th Cir. 2021) (“Personal jurisdiction must

be determined on a claim-by-claim basis.”).6

6 This court’s statement in Hicks v. Houston Baptist University “that personal jurisdiction must be analyzed at

the level of the suit” must be understood in the context in which it arose, “a class action,” in which “there is only one

suit: the suit between [p]laintiff and [d]efendant.” No. 5:17-CV-629-FL, 2019 WL 96219, at *5-6 (E.D.N.C. Jan. 3,

2019).

Moreover, Bristol-Myers, which plaintiff cites in support of a suit-level personal

jurisdiction inquiry, in fact, stated that “[i]n order for a court to exercise specific jurisdiction over

a claim,” there must be an “affiliation between the forum and the underlying controversy.” Bristol-

Myers, 137 S. Ct. at 1781 (emphasis added); see also id. (identifying the Supreme Court of

California’s error when it “found that specific jurisdiction was present without identifying any

adequate link between the State and the nonresidents’ claims.” (emphasis added)); id. (“Under the

[erroneous] California approach, the strength of the requisite connection between the forum and

the specific claims at issue is relaxed if the defendant has extensive forum contacts that are

unrelated to those claims.” (emphasis added)).

Plaintiff’s description of Bristol-Myers as involving only “mass tort cases” where the

plaintiffs brought “individual lawsuits in the same forum,” which he ostensibly contrasts with

himself and the opt-in plaintiffs’ “single action,” (Pl.’s Resp. (DE 20) at 18), misunderstands the

context of Bristol-Myers. The relevant “actions were assigned as a coordinated matter to a judge

of the San Francisco Superior Court,” Bristol-Myers Squibb Co. v. Superior Ct., 377 P.3d 874,

878 (Cal. 2016), rev’d 137 S. Ct. 1773, and the United States Supreme Court described the

procedural context as “[m]ore than 600 plaintiffs . . . fil[ing] [a] civil action in California state

court,” with the “group of plaintiffs . . . fil[ing] eight separate complaints[.]” Bristol-Myers, 137

S. Ct. at 1777-78. Accordingly, plaintiff’s assertion, implied or explicit, that Bristol-Myers

involved 678 individual lawsuits is inaccurate and fails to provide a reason to find Bristol-Myers

inapplicable. As the Bristol-Myers Court explained, “[t]he mere fact that other plaintiffs” in the

action interacted with the accused product “and allegedly sustained the same injuries as did the

nonresident[-plaintiffs] . . . does not allow . . . specific jurisdiction over the [nonresident-

plaintiffs’] claims.” Id. at 1781; Goodyear, 564 U.S. at 931 n.6 (“[E]ven regularly occurring sales

of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those

sales.” (emphasis added)).

In sum, plaintiff’s proffered suit/claim dichotomy as it relates to the personal jurisdiction

inquiry is unavailing, and fails to provide a reason to ignore Bristol-Myers’s clear commands,

especially given the Court’s statement therein that “[w]hat is needed” for specific personal

jurisdiction “and what [was] missing [t]here[,] is a connection between the forum and the specific

claims at issue.” Bristol-Myers, 137 S. Ct. at 1781 (emphasis added). The specific claims at issue,

here, are those of the putative opt-in plaintiffs against defendant, specifically, those arising from

work outside of or otherwise unrelated to North Carolina.

b. Character of FLSA Actions

Plaintiff further relies on the particular character of an FLSA collective action as meriting

disregard of personal jurisdiction questions as to the putative opt-in plaintiffs and as distinguishing

the applicability of analysis engaged in by the Supreme Court in Bristol-Myers. Plaintiff claims

that the court should follow in line with a handful of district courts in the circuit, with which the

United States Court of Appeals for the First Circuit’s opinion in Waters v. Day & Zimmermann

NPS, Inc., 23 F.4th 84 (1st Cir. 2022), decided after the instant briefing, comports, that conclude

that Bristol-Myers’s analysis or holding does not analogously apply to FLSA collective actions.

Waters, 23 F.4th at 92-93; Hunt v. Interactive Med. Specialists, Inc., No. 1:19-CV-13, 2019 WL

6528594, at *2 (N.D. W. Va. Dec. 4, 2019) (“[T]he Court concludes that Bristol-Myers . . . does

not apply to FLSA collective actions.”); O’Quinn v. TransCanada USA Servs., Inc., 469 F. Supp.

3d 591, 613 (S.D.W. Va. 2020) (“I find that the holding in [Bristol-Myers] does not apply to FLSA

collective actions.”).

The court, accordingly, considers again the holding of Bristol-Myers itself. Bristol-Myers

held that nonresident plaintiffs filing eight separate complaints in a California mass tort action

could not invoke a California state court’s specific personal jurisdiction because their claims were

not related to defendant’s contacts with the forum, despite the fact that other California-residing

plaintiffs’ claims against defendant were proper invocations of the state court’s jurisdiction. 137

S. Ct. at 1778, 1781, 1783.

The United States Court of Appeals for the Fourth Circuit has not decided whether Bristol-

Myers’s holding extends to either federal collective action claims under the FLSA or, potentially

analogous, federal class action claims. However, this court has held that “Bristol-Myers . . . does

not apply in” the case of putative, unnamed Rule 23 class members who may be out-of-state

residents, on whose behalf the named plaintiff brought suit. Hicks, 2019 WL 96219, at *5-6;

accord Lyngaas v. Ag, 992 F.3d 412, 433 (6th Cir. 2021); Mussat v. IQVIA, Inc., 953 F.3d 441,

447 (7th Cir. 2020). Yet, two federal courts of appeals have held that “[t]he principles animating

Bristol-Myers’s application to mass actions under California law apply with equal force to FLSA

collective actions under federal law,” Canaday v. Anthem Companies, Inc., 9 F.4th 392, 397 (6th

Cir. 2021); Vallone, 9 F.4th at 866, in conflict with the district court cases cited by plaintiff and

with Waters.

The court finds the question of whether Bristol-Myers’s analysis analogously applies to

putative opt-in plaintiffs’ FLSA claims that are unrelated to the forum state to be controlled by the

nature of FLSA collective actions, which is instructively distinguishable from the nature of a Rule

23 class action.7

7 Accordingly, insofar as plaintiff relies on the holdings of cases like Mussat, which considered the question

in the context of a Rule 23 class action, those cases are inapt to the instant question.

Section 216 of Title 29 of the United States Code makes employers who violate certain

provisions of the FLSA liable to the employees affected. 29 U.S.C. § 216(b). “An action to

recover th[at] liability . . . may be maintained against any employer . . . in any [f]ederal or [s]tate

court of competent jurisdiction by any one or more employees for and in [sic] behalf of himself or

themselves and other employees similarly situated.” Id. However, “[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.” Id.

Thus, FLSA collective actions are distinct from Rule 23 class actions in that “potential

plaintiffs can join an FLSA collective action only by affirmatively giving consent in writing to

become a party.” Degidio v. Crazy Horse Saloon & Rest. Inc., 880 F.3d 135, 137 n.1 (4th Cir.

2018). As the Supreme Court has explained, the FLSA’s opt-in requirement, added by

congressional amendment subsequent to the act’s initial passage, works towards “the purpose of

limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing

employers of the burden of representative actions.” Hoffmann-La Roche Inc. v. Sperling, 493

U.S. 165, 173 (1989). Thus, unlike “nonnamed class members,” who “may be parties for some

purposes and not for others,” Devlin v. Scardelletti, 536 U.S. 1, 2 (2002), a “similarly-situated

employee” who “opts in” is “a ‘party plaintiff.’” Simmons v. United Mortg. & Loan Inv., LLC,

634 F.3d 754, 758 (4th Cir. 2011).

In light of this distinct statutory scheme, federal courts have described a FLSA “collective

action [as] more accurately described as a kind of mass action, in which aggrieved workers act as

a collective of individual plaintiffs with individual cases.” Campbell v. City of Los Angeles, 903

F.3d 1090, 1105 (9th Cir. 2018); Canady, 9 F.4th at 397; Abraham v. St. Croix Renaissance Grp.,

L.L.L.P., 719 F.3d 270, 272 n.1 (3d Cir. 2013) (“A mass action is more akin to an opt-in than it is

to a class action.” (citing 29 U.S.C. § 216(b))); see also Scott v. Chipotle Mexican Grill, Inc., 954

F.3d 502, 519 (2d Cir. 2020) (describing a “collective action under § 216(b)” as a

“nonrepresentative action”). Thus, while “[a]n unnamed member of a proposed but uncertified

class is not a party to the litigation,” Quicken Loans Inc. v. Alig, 737 F.3d 960, 966 (4th Cir. 2013),

“those who opt in” to FLSA collective actions “become party plaintiffs upon the filing of a consent

and . . . nothing further, including conditional certification, is required.” Mickles v. Country Club

Inc., 887 F.3d 1270, 1278 (11th Cir. 2018); see also Genesis Healthcare Corp. v. Symczyk, 569

U.S. 66, 75 (2013) (“Under the FLSA, by contrast [to Rule 23 certification], ‘conditional

certification’ does not produce a class with an independent legal status, or join additional parties

to the action. The sole consequence of conditional certification is the sending of court-approved

written notice to employees[.]”).

Taken together, the foregoing principles of law combine to counsel that FLSA opt-in

plaintiffs’ claims against a defendant must present independent, sufficient bases for exercise of the

court’s specific personal jurisdiction over that claim in reference to the defendant. Therefore,

Bristol-Myers, to the extent its holding was anything but application of “settled principles

regarding specific jurisdiction,” 137 S. Ct. at 1781, requires that the court dismiss the claims in

plaintiff’s complaint on behalf of putative plaintiffs that opt-in to the collective action to the extent

those putative plaintiffs did work in states other than North Carolina or whose employment with

defendant otherwise had no connection to this state. (See, e.g., Compl. ¶ 1, 4, 45-46).

c. Fifth and Fourteenth Amendments

Plaintiff nonetheless relies on the distinction between the Fifth and Fourteenth

Amendments to explain the inapplicability of Bristol-Myers’s reasoning, which explicitly relied

on the “Fourteenth Amendment limits [to] the personal jurisdiction of state courts,” Bristol-Myers,

137 S. Ct. at 1779. (Pl.’s Resp. (DE 20) at 14-15 (“[A]ny due process limits on the federal courts

stem from the Fifth Amendment rather than the Fourteenth, as federal courts are not state

institutions.”)). Plaintiff’s argument with respect to this issue is consistent with the First Circuit’s

recent conclusion in Waters that “[t]he Fifth Amendment does not bar an out-of-state plaintiff from

suing to enforce their rights under a federal statute in federal court if the defendant maintained the

requisite minimum contacts with the United States.” 23 F.4th at 92.8

Undisputedly, the Fourteenth Amendment “applies of its own force only to states.” ESAB

Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 622-23 (4th Cir. 1997). Bristol-Myers, itself, “le[ft]

open the question whether the Fifth Amendment imposes the same restrictions on the exercise of

personal jurisdiction by a federal court.” 137 S. Ct. at 1784.9 Nevertheless, no binding law

counsels the application of such a nationwide jurisdictional test here, where the FLSA does not

allow nationwide service and it is undisputed that Rule 4(k)(2) is inapplicable. See United States

v. Batato, 833 F.3d 413, 423 n.3 (4th Cir. 2016); Sneha Media, 911 F.3d at 198 (explaining that

“Rule 4(k)(2) jurisdiction” requires, inter alia, a “demonstrati[on] that no State can exercise

personal jurisdiction over the defendant”); Autoscribe Corp. v. Goldman & Steinberg, No. 94-

8 Plaintiff also asserts that any Fourteenth Amendment-guided constraints on the court’s exercise of personal

jurisdiction are inapt where “such limitations are grounded in the ‘federalism interests.’” (Pl.’s Resp. (DE 20) at 13

(quoting Bristol-Myers, 137 S. Ct. at 1780)). However, the Supreme Court has also recognized that “[p]ersonal

jurisdiction . . . restricts ‘judicial power not as a matter of sovereignty, but as a matter of individual liberty,’ for due

process protects the individual’s right to be subject only to lawful power.” J. McIntyre Mach., Ltd. v. Nicastro, 564

U.S. 873, 884 (2011) (plurality opinion) (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982)).

9 In fact, the Supreme Court has not yet supplied the precise parameters of the Fifth Amendment’s constraints

on federal courts’ exercise of personal jurisdiction. See, e.g., Bristol-Myers, 137 S. Ct. at 1779; J. McIntyre, 564 U.S.

at 884. The Fourth Circuit’s analysis of the Fifth Amendment’s limits on personal jurisdiction has been constrained

primarily to instances of federal statutes authorizing nationwide service or service under Rule 4(k)(2). See, e.g.,

Trustees of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443-44 (4th Cir.

2015) (“To make out a Fifth Amendment challenge to personal jurisdiction, [d]efendants had to show that the district

court’s assertion of personal jurisdiction over them would result in such extreme inconvenience or unfairness as would

outweigh the congressionally articulated policy evidenced by a nationwide service of process provision.”); ESAB

Grp., 126 F.3d at 627.

1749, 1995 WL 56662, at *4 (4th Cir. Feb. 3 1995) (per curiam) (“[T]he Supreme Court has

expressly declined to determine whether a defendant’s aggregate national contacts are in any way

relevant in a federal question case when there is no provision for nationwide service of process.”).10

Rather, the Fourth Circuit has consistently counseled that the Fourteenth Amendment’s

constraints on the forum state’s courts’ exercise of personal jurisdiction are pertinent to the

personal jurisdiction inquiry for a federal court in that state, primarily through operation of Rule

4(k)(1)(A) and its mandates for service of summons. See, e.g., ESAB Grp., 126 F.3d at 622-23

(“[T]he court’s] inquiry into the federal court’s jurisdiction pursuant to Rule 4(k)(1)(A)

incorporates the Fourteenth Amendment due process standard.”); Young v. New Haven Advoc.,

315 F.3d 256, 261 (4th Cir. 2002) (“A federal court may exercise personal jurisdiction over a

defendant in the manner provided by state law.”).

In fact, the Supreme Court has explained that “[b]efore a federal court may exercise

personal jurisdiction over a defendant, the procedural requirement of service of summons must be

satisfied,” in addition to the requirements of “notice to the defendant and a constitutionally

sufficient relationship between the defendant and the forum.” Omni Cap. Int’l, Ltd. v. Rudolf

Wolff & Co., 484 U.S. 97, 104 (1987); see, e.g., Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 131

(4th Cir. 2020) (“[T]he exercise of personal jurisdiction must comport with the requirements of

the Due Process Clause: valid service of process, as well as minimum contacts with the forum so

that the exercise of jurisdiction does not offend traditional notions of fair play and substantial

justice.”).

10 Neither the Supreme Court nor the Fourth Circuit have accorded Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992), the exceedingly broad reading for which plaintiff advocates. (See Pl.’s Resp. (DE 20) at 15

(citing Weltover, 504 U.S. at 619-20)).

Rule 4 of the Federal Rules of Civil Procedure generally controls service of summons in

any federal action. Rule 4(k)(1) provides that “[s]erving a summons . . . establishes personal

jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction

in the state where the district court is located.” Fed. R. Civ. P. 4(k)(1). North Carolina’s long-

arm statute, the relevant state law determining the jurisdiction of a court of general jurisdiction in

North Carolina, “permits the exercise of personal jurisdiction over a defendant to the outer limits

allowable under federal due process.” Universal Leather, 773 F.3d at 558.

Therefore, “[b]ecause Rule 4(k)(1)(A) delimits the scope of effective federal service in

terms of the limits on state court jurisdiction, [the court’s] inquiry into the federal court’s

jurisdiction pursuant to Rule 4(k)(1)(A) incorporates the Fourteenth Amendment due process

standard, even though that Amendment applies of its own force only to states.” ESAB Grp., 126

F.3d at 622-23; see Daimler, 571 U.S. at 125 (“Federal courts ordinarily follow state law in

determining the bounds of their jurisdiction over persons.”). See generally 4 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1068.1 (3d ed. 2010)

(“The minimum contacts doctrine originated in a line of cases that, strictly speaking, dealt only

with the jurisdictional powers of state—not the federal—courts. Nevertheless, there were

compelling historical and practical reasons why the new Fourteenth Amendment doctrine quickly

came to be applied in the federal courts as well.” (footnote omitted)).

While the Waters court reasoned that “Rule 4 is concerned with initial service, not

jurisdictional limitations after service,” 23 F.4th at 98-99, it would be incongruous that a plaintiff

could bring suit on a federal claim arising from defendant’s contacts in the forum state and serve

summons on defendant in accord with Rule 4(k)(1)(A), only to then later join other plaintiffs and

their claims to the suit, which the court could not have exercised personal jurisdiction over if they

initiated their own suits, due to Rule 4(k)(1)(A)’s constraints. Canaday, 9 F.4th at 400 (“These

core limitations on judicial power would be one amended complaint—with potentially new claims

and new plaintiffs—away from obsolescence.”).11 On plaintiff’s theory, the court’s jurisdictional

reach over these new claims against defendant would constrained only by the Fifth Amendment’s

more permissive requirements, which have only been applied in the context of nationwide service

statutes and Rule 4(k)(2) by the Fourth Circuit. See Trustees of the Plumbers, 791 F.3d at 444.

The court will not read such a loophole into an important limitation on this court’s permissible

exercise of jurisdiction. See generally Wright, Miller & Khan, supra, § 1146 (“It is clear, however,

that Rule 5 itself[, which generally controls service of documents after the original complaint,]

cannot be used as a means to circumvent the ordinary jurisdictional inquiry.”).

d. FLSA Collective Action Policy

Plaintiff contends that requiring FLSA opt-in plaintiffs to meet the traditional requirements

for the court’s exercise of personal jurisdiction over defendant in regard to their claims would

vitiate FLSA collective actions. This argument tracks the reasoning proffered by the court in

Swamy v. Title Source, Inc., No. 3:17-cv-01175-WHA, 2017 WL 5196780 (N.D. Cal. Nov. 10,

2017). The Swamy court reasoned that a holding in line with the one herein “would splinter most

nationwide collective actions, trespass on the expressed intent of Congress, and greatly diminish

the efficacy of FLSA collective actions as a means to vindicate employees’ rights.” Id. at *2.

However, Swamy is not persuasive authority because it relies on the misplaced principle

that, in an FLSA action, the suit is akin to a representational action in which the “named plaintiff”

11 While the Fourth Circuit has recognized the principle of “pendent personal jurisdiction,” it has done so in the

specific context of “a district court which has obtained personal jurisdiction over a defendant by reason of a federal

claim” through reliance on a nationwide service provision and Rule 4(k)(2). ESAB Grp., 126 F.3d at 628-29; Grayson

v. Anderson, 816 F.3d 262, 271 (4th Cir. 2016) (“[I]f a plaintiff properly invokes Rule 4(k)(2), it can rely on pendent

jurisdiction for its state law claims, so long as those claims arose under the same nucleus of operative facts.”).

is the crux of all analysis. See id. That proposition has been rejected specifically by Swamy’s

resident court of appeals, see Campbell, 903 F.3d at 1105, and generally disapproved of by the

Supreme Court. See, e.g., Hoffman-La Roche, 493 U.S. at 173 (explaining that the opt-in

requirement was passed to “free[] employers of the burden of representative actions”). The fact

that an FLSA claim is “a federal claim created by Congress specifically to address employment

practices nationwide,” Swamy, 2017 WL 5196780, at *2; (Pl.’s Resp. (DE 20) at 17), fails to

explain why the evils targeted by the FLSA could only be addressed by nationwide collectives,

and would seemingly apply to the majority of federal statutes that create causes of action.

Finally, plaintiff suggests it is an impermissible result of the instant holding that FLSA

plaintiffs will need to seek “certification of nationwide or multistate class actions . . . in the one or

two states where the defendant is subject to general jurisdiction.” (Pl.’s Resp. (DE 20) at 8).

However, the court is unconvinced that this result belongs in the “parade of horribles that [plaintiff]

conjure[s] up,” as Bristol-Myers itself recognized that the solution for the plaintiffs before it was

to “join[] together in a consolidated action in the States that have general jurisdiction over [Bristol-

Myers Squib].” 137 S. Ct. at 1783; see also Canaday, 9 F. 4th at 400-01 (noting that the plaintiffs

before it were not without recourse where “employees may file a nationwide collective action

under the FLSA so long as they do so in a forum that may exercise general jurisdiction over the

employer—namely its principal place of business or its place of incorporation”).

In sum, plaintiff fails to demonstrate that exercise of personal jurisdiction over defendant

by the court would be proper as it relates to claims on the putative opt-in plaintiffs’ behalf based

on their work with no relation to the forum state. Thus, grant, in part, of defendant’s partial motion

to dismiss is proper. Plaintiff contends that this determination is premature, but he has brought the

issue to head by seeking contemporaneous certification of a collective that would include such

putative opt-in plaintiffs. The court will not engage in the futile exercise of certifying a nationwide

collective and authorizing notice to putative opt-in plaintiffs who would shortly thereafter have

their claims dismissed upon the court’s above rationale.

Plaintiffs claims on behalf of a collective that would include opt-in plaintiffs who did not

work in North Carolina on defendant’s behalf or otherwise have the requisite connection to the

state are dismissed without prejudice.

B. Plaintiff's Motion (DE 7)

Given disposition of defendant’s motion to dismiss, the court correspondingly denies

without prejudice plaintiff's motion to certify conditionally the proposed FLSA collective where

it would include “non-exempt manual laborers of [defendant] who were employed by [it] in the

United States” generally. (Pl.’s Mot. (DE 7) at 1). Hence, plaintiff's arguments regarding tolling

are not addressed.

CONCLUSION

Based on the foregoing, defendant’s partial motion to dismiss (DE 14) is GRANTED in

part and DENIED in part, as described herein. Plaintiffs motion to certify conditionally this case

as a FLSA collective action (DE 7) is DENIED without prejudice. Per the court’s December 21,

2021, order (DE 26), the parties shall file a supplement to their joint report and plan within 21 days

of this order.

SO ORDERED, this the 19th day of April, 2022.

LOUISE W. FLANAGAN

United States District Judge

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