FOGG v. CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

OREESE FOGG and KYLE WALKER,

individually and on behalf of all

persons similarly situated,

Plaintiffs, Civ. No. 21-7626 (KM) (JBC)

v. OPINION

CLEAN HARBORS ENVIRONMENTAL

SERVICES, INC.,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the Court on the motion (DE 64)1 of Defendant

Clean Harbors Environmental Services, Inc. (“Clean Harbors”) to stay or,

alternatively, transfer the action under the first-filed rule. Plaintiffs Oreese

Fogg and Kyle Walker filed this putative class action (the “Fogg action”) on

March 31, 2021 for unpaid wages on behalf of “current and former non-

exempt, hourly employees of Clean Harbors who worked at one of Clean

Harbors’ facilities.” (Compl. ¶ 24.) Clean Harbors seeks to stay the Fogg action

until the disposition of an ongoing putative class action that it contends is

substantially similar: McMurtry v. Clean Harbors Environmental Services, Inc.,

No. 20-cv-6774 (D.N.J.) (the “McMurtry action”). The McMurtry action was filed

first-in-time in New Jersey state court on April 21, 2020 and removed to the

District of New Jersey on June 2, 2020; the matter is currently before Judge

Evelyn Padin. The McMurtry action seeks to certify a class on behalf of “current

1 Certain citations to the record are abbreviated as follows:

DE = docket entry

Compl. = Amended Complaint (DE 13)

Mot. = Clean Harbors’ Brief in Support of Motion to Stay (DE 64)

Op. Mot. = Fogg and Walker’s Brief in Opposition to Motion to Stay (DE 68)

and former employees of the Clean Harbors Defendants who performed work . .

. at New Jersey facilities owned by Public Service Electric & Gas.” (DE 64-2

¶ 86.) For the reasons set forth below, I will DENY Clean Harbors’ motion to

stay or transfer.

I. BACKGROUND

A. The Fogg Action

The Fogg action is a putative class action against Clean Harbors where

the plaintiffs allege that Clean Harbors failed to pay class members wages for

time spent in meetings or work performed off-the-clock, or overtime wages for

time worked in excess of 40 hours per week. (Compl. ¶¶ 1–3.) The class

members include “employees of Clean Harbors who worked at one of Clean

Harbors’ facilities.” (Id. ¶ 24.)

The Fogg plaintiffs allege that they performed substantial off-the-clock

work without being paid. (Id. ¶ 18.) Clean Harbors also allegedly failed to

accurately record the hours plaintiffs worked and managers often did not turn

in time sheets, resulting in employees not being paid for their work. (Id.) At

times, the plaintiffs were not compensated for time spent in mandatory

monthly training sessions, which lasted approximately two to three hours. (Id.)

As a result of Clean Harbors’ alleged failure to pay the Fogg plaintiffs for

all hours worked, they claim violations of the Fair Labor Standards Act, 29

USC § 201, et seq.; the New Jersey Wage and Hour Law, N.J. Stat. Ann.

§ 34:11-56a, et seq., for failure to pay overtime wages; and the New Jersey

Wage Payment Law, N.J. Stat. Ann. § 34:11-4.3, for failure to pay timely wages.

B. The McMurtry Action

The McMurtry action is another class action against Clean Harbors where

the plaintiffs allege that Clean Harbors failed to pay the putative class

members at the “prevailing wage” rate required under New Jersey law.

(DE 64-2 ¶¶ 1–5.) The putative class members include employees of Clean

Harbors who worked at “facilities owned by Public Service Electric & Gas, as

part of the Energy Strong programs approved by the New Jersey Board of

Public Utilities.” (Id. ¶ 86.)

The McMurtry complaint states that, in 2011 and 2012, New Jersey was

struck by multiple storms, which caused “severe damage” to the State’s utility

infrastructure. (Id. ¶ 44.) As a result, the New Jersey Board of Public Utilities

issued an order in January 2013 requiring electricity suppliers to “carefully

examine their infrastructure and determine how they could be better protected

from flooding.” (Id. ¶ 45.) In response to that order, Public Service Electric &

Gas (“PSE&G”) petitioned the Board of Public Utilities for approval of a program

aimed at restructuring its electric and gas infrastructure, referred to as “Energy

Strong I.” (Id. ¶ 47.) Following various proceedings, hearings, and meetings, the

Board of Public Utilities approved PSE&G’s project. (Id. ¶¶ 49–52.)

Several years later, the Board of Public Utilities established “a regulatory

mechanism supporting the implementation of an Infrastructure Investment

Program . . . which allowed a utility to accelerate its investment in the

construction, installation, and rehabilitation of certain non-revenue producing

utility plant and facilities.” (Id. ¶ 55.) Pursuant to the Infrastructure Investment

Program rules, PSE&G petitioned for another project aimed at improving,

modernizing, and rebuilding its systems in various ways, referred to as “Energy

Strong II.” (Id. ¶ 58.) In September 2019, following a series of hearings and

meetings, the Board of Public Utilities approved the project. (Id. ¶¶ 59–60.)

PSE&G contracted with Clean Harbors to provide services for Energy

Strong I and II. Clean Harbors in turn assigned the putative class members to

perform work in relation to those projects at the PSE&G facilities. (Id. ¶ 74.)

The McMurtry plaintiffs’ work included, among other things, the use of

equipment and machinery to remove oil, replace pipelines, and assist with the

installation of new transformer structures. (Id. ¶¶ 75–77.) The McMurtry

plaintiffs assert that their work at the PSE&G facilities qualified as

“construction work on a public utility,” but Clean Harbors failed to pay them at

the required “prevailing wage” rate for such work. (Id. ¶¶ 79–83.) Plaintiffs

submitted time sheets for hours worked and believe that those time sheets

have been maintained pursuant to legal requirements. (Id. ¶ 78.)

As a result, the McMurtry plaintiffs allege that Clean Harbors violated

New Jersey’s Public Utility Act, N.J. Stat. Ann. § 34:13B-2.1, et seq., and

Financial Assistance Act, N.J. Stat. Ann. § 48:2-29.47, et seq.

II. DISCUSSION

Under the “first-filed” rule, a district court may “enjoin the subsequent

prosecution of proceedings involving the same parties and the same issues

already before another district court.” E.E.O.C. v. Univ. of Pa., 850 F.2d 969,

971 (3d Cir.1988); see also Chavez v. Dole Food Co., Inc., 836 F.3d 205, 210 (3d

Cir. 2016) (en banc) (“[The first-filed] rule is a comity-based doctrine stating

that, when duplicative lawsuits are filed successively in two different federal

courts, the court where the action was filed first has priority.”). “[T]he rule’s

primary purpose is to avoid burdening the federal judiciary and to prevent the

judicial embarrassment of conflicting judgments.” E.E.O.C., 850 F.2d at 977.

In their briefs, the parties apply different standards for application of the

first-filed rule. Clean Harbors employs the “substantial overlap” test, which

applies when the parties and issues in the two actions “substantially overlap,”

even if the matters are not identical. (Mot. p. 6); see Tekno Prod., Inc. v. Glove

Trends Inc., No. 19-cv-91, 2019 WL 7184544, at *9 (D.N.J. Dec. 26, 2019). In

contrast, Fogg and Walker discuss whether the two matters are “truly

duplicative,” i.e., involve the same issues and same parties. (Op. Mot. p. 4, 16);

see Coyoy v. United States, 526 F. Supp. 3d 30, 43 (D.N.J. 2021). In Coyoy, I

recently rejected the use of the more relaxed “substantial overlap” test and held

that application of the first-filed rule depends on whether the two actions

involve the “same issues” and “same parties,” as set forth by the Third Circuit

in E.E.O.C. v University of Pennsylvania. See Coyoy, 526 F. Supp. 3d at 43–44.

Regardless, even if the “substantial overlap” test applied, Clean Harbors

could not satisfy it. Clean Harbors asserts that the putative classes in each

case substantially overlap because both actions are brought against Clean

Harbors, both putative classes consist of employees suing for unpaid wages,

and both cases involve discovery related to hours worked and rates of pay.

(Mot. p. 8, 10–11, 13.) The similarities, however, end there.

While the McMurtry and Fogg actions are generally similar, Clean

Harbors’ comparison ignores some significant distinctions between the two.

First, contrary to Clean Harbors’ position, the two putative plaintiff classes do

not substantially overlap. The Fogg action seeks to certify a class of employees

“who worked at one of Clean Harbors’ facilities” (Compl. ¶ 24), while the

McMurtry action seeks to certify a class of employees who were assigned to

“perform work on PSE&G facilities” (DE 64-2 ¶ 74). Although, as Clean Harbors

argues, it is conceivable that an employee could be part of both classes, the

proposed class definitions are not directed at similar groups of employees. Cf.

Catanese v. Unilever, 774 F. Supp. 2d 684, 688 (D.N.J. 2011) (applying the

first-filed rule to a class action where the proposed classes were “identical” and

“each of the named plaintiffs would be included in the other’s class”). Second,

the underlying factual circumstances giving rise to the claims are entirely

distinct. See id. at 687 (“[T]he most important consideration in a first-filed rule

analysis is overlapping subject matter.”) In the Fogg action, the plaintiffs assert

that Clean Harbors failed to pay employees at its own facilities for time spent

working off-the-clock or in mandatory meetings, and failed to pay overtime

wages for work in excess of 40 hours per week. In the McMurtry action, the

plaintiffs allege that Clean Harbors failed to pay them at the “prevailing wage”

rate for work they conducted at PSE&G facilities in relation to PSE&G projects

that qualified as construction work on a public utility. The Fogg complaint

makes no specific reference to work performed at PSE&G facilities or an

entitlement to be paid at the corresponding “prevailing wage” rate. Likewise,

the McMurtry complaint makes no reference to unpaid wages for meetings, off-

the-clock work, or overtime. In essence, Clean Harbors is alleged to have

committed two distinct wrongs against two distinct groups of workers. These

distinctions suggest that it is unlikely that allowing these cases to proceed at

the same time would result in “conflicting judgments.” See E.E.O.C., 850 F.2d

at 977.

Therefore, even applying the “substantial overlap” test for the sake of

argument, I would decline to apply the first-filed rule. A fortiori, I would deny

the motion under the more rigorous test requiring that the issues and parties

in the two actions be the same. For similar reasons I find no sufficient grounds

to transfer the case to the docket of the judge hearing the first-filed case.

III. CONCLUSION

For the reasons set forth above, the motion to stay or transfer the action

is denied. A separate order will issue.

Dated: September 29, 2022

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge