# FOGG v. CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.

> District Court, D. New Jersey · September 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10274041

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274041

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274041. Public record. Not legal advice.