ATWOOD v. FEDEX GROUND PACKAGE SYSTEM, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

TIMOTHY ATWOOD and PHOEBE )

GRANADO, )

)

Plaintiffs, )

) Civil Action No. 2:24-1127-RJC

v. )

)

)

FEDERAL EXPRESS CORPORATION, )

successor by merger to FEDEX GROUND )

PACKAGE SYSTEM, INC., )

)

Defendant. )

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is a Motion on Misjoinder and Change of Venue (“Misjoinder Motion”)

(ECF No. 23) filed by Defendant Federal Express Corporation, successor by merger to FedEx

Ground Package System, Inc. (“FedEx”) in the above-captioned matter. FedEx seeks severance

of the claims set forth by Plaintiffs Timothy Atwood and Phoebe Granado (collectively,

“Plaintiffs”) in the operative Amended Complaint (the “Complaint”) (ECF No. 19) due to

misjoinder under Federal Rule of Civil Procedure 21 and, thereafter, transfer of each Plaintiff’s

case to the federal courts corresponding to the states of their employment with their “Service

Provider.”1 ECF No. 23at 1. The Court has jurisdiction in this matter pursuant to 28 U.S.C. §

1331. FedEx’s Midjoinder Motion has been fully briefed and is ripe for disposition.

1 The law firm Lichten & Liss-Riordan P.C. (“Plaintiffs’ counsel”) represents the plaintiffs in each of the four lawsuits

pending against FedEx before the undersigned at 2:18-cv-1698, 2:24-cv-1127, 2:24-cv-1128, and 2:24-cv-1129.

I. Background

It bears initially noting that the present case is essentially a “spinoff” from a lawsuit that is

currently pending before the undersigned and which has been active in this District since 2018,

Claiborne, et al. v. FedEx Ground Package System, Inc., 2:18-cv-1698. In late April 2024, the

plaintiffs in Claiborne voluntarily moved to decertify a conditionally certified collective that

included, among 30,000+ individuals, Atwood and Granado as opt-ins who were dismissed

without prejudice. The Claiborne plaintiffs subsequently withdrew their Rule 23 class action

allegations in July 2024. The Court granted the Claiborne plaintiffs’ request for decertification on

May 2, 2024, and, pursuant to the parties’ agreement, granted the request of the dismissed opt-ins

to toll their statute of limitations through August 6, 2024 in which to pursue their claims. 2:18-cv-

1698 -- ECF No. 526. On August 1, 2024, Plaintiffs’ counsel filed a letter on the Claiborne docket

(2:18-cv-1698 -- ECF No. 544) informing the Court of the possibility of the filing of additional

lawsuits such as the one herein, noting the possibility of 13,000+ plaintiffs pursuing individual

claims, and seeking guidance on how counsel should proceed. In response, the Court ordered as

follows in Claiborne:

ORDER: Upon review of Plaintiffs’ “NOTICE of Forthcoming Complaints and

Request for Conference” [544], it is hereby ordered that the request for a status

conference is denied. By way of this request, Plaintiffs’ counsel seems to seek only

a discussion about hypothetical anticipated lawsuits and complaints that have not

yet been filed. See [544] at 2 (“[W]e write to respectfully request that the Court

schedule a brief conference if possible before Tuesday (the tolling deadline) to

discuss the filing of plaintiffs’ anticipated complaints. We would like to discuss

the logistics of our filing these complaints and understand the Court's preferences

if possible before the complaints are filed.”). With respect to logistics, the Court

perceives that counsel’s questions would be better directed to the Clerk’s Office.

With respect to "preferences," the Court maintains no preferences at this juncture,

and would reserve consideration of, and would not speak to, any issues that are not

currently pending before the undersigned in a pending case. Unless Plaintiffs can

identify a specific basis for a status conference in the case at No. 18-cv-1698, and

Plaintiffs have not, the Court sees no need for a status conference at this time. The

status conference request is denied.

2:18-cv-1698 -- ECF No. 545.

On August 6, 2024, Plaintiffs’ counsel filed three new lawsuits, including this one, against

FedEx at case nos. 2:24-cv-1127; 2:24-cv-1128; 2:24-cv-1129. Plaintiffs’ counsel has designated

the newer cases as related to Claiborne. Plaintiffs assert that they were employed as delivery

drivers by FedEx through intermediary employers to perform delivery services on FedEx’s behalf.

Compl. ¶ 14, ECF No. 19. Plaintiffs further assert that FedEx has violated the FLSA by not paying

overtime compensation to Plaintiffs for all hours worked over forty each week. Id. at ¶¶ 27-29.

Plaintiffs filed the Complaint on September 24, 2024. FedEx filed its Misjoinder Motion

on December 2, 2024, along with a Brief in Support (ECF No. 24). Plaintiffs filed a Response in

Opposition (ECF No. 27) on December 12, 2024. FedEx filed a Reply (ECF No. 30) on December

19, 2024. On December 23, 2024, the parties stipulated to dismissal of Plaintiffs’ declaratory

judgment claim at Count II, see ECF No. 31, thus mooting a Motion to Dismiss (ECF No. 20)

previously filed by FedEx, see ECF No. 32. Plaintiffs filed a Notice of Supplemental Authority

(ECF No. 33) on January 16, 2025.

II. Legal Standard

A. Joinder

Federal Rule of Civil Procedure 20, which addresses permissive joinder of parties, provides

as follows with respect to joinder of plaintiffs:

Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with

respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the

action.

Fed. R. Civ. P. 20(a)(1). While misjoinder is not a ground for dismissal of a case, the Court may,

on motion or on its own, add or drop a party or sever any claim against a party at any time on just

terms. Fed. R. Civ. P. 21.

“[S]everance under Rule 21 creates independent actions resulting in separate judgments[,]”

and is appropriate when the plaintiffs’ claims “are ‘discrete and separate,’ each capable of

resolution without dependence or effect on the other.” Henderson v. Mahally, 639 F. Supp. 3d

481, 486 (M.D. Pa. 2022). While the United States Court of Appeals for the Third Circuit “has

not established specific parameters for deciding a motion to sever claims[,]” district courts often

consider:

(1) [W]hether the issues sought to be severed are significantly different from one

another and would require distinct evidentiary proof; (2) whether severance would

promote judicial economy; and (3) whether either party will be unduly prejudiced

by severance or its absence.

Henderson, 639 F. Supp. 3d 486-87. Where the plaintiffs do not meet the standard for permissive

joinder under Rule 20, “[t]he proper remedy is to grant severance or dismissal to the improper

party if it will not prejudice any substantial right.” Sabolsky v. Budzanoski, 457 F.2d 1245, 1249

(3d Cir. 1972).

B. Venue and Transfer

In general, a civil action may be brought in the following venues:

(1) a judicial district in which any defendant resides, if all defendants are residents

of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving

rise to the claim occurred, or a substantial part of property that is the subject of the

action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided

in this section, any judicial district in which any defendant is subject to the court's

personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). 28 U.S.C. § 1404(a) provides: “[f]or the convenience of parties and

witnesses, in the interest of justice, a district court may transfer any civil action to any other district

or division where it might have been brought or to any district or division to which all parties have

consented.” 28 U.S.C. § 1404(a).

“Section 1404(a) is intended to place discretion in the district court to adjudicate motions

for transfer according to an ‘individualized, case-by-case consideration of convenience and

fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v.

Barrack, 376 U.S. 612, 622 (1964)); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d

Cir. 1995) (“[S]ection 1404(a) was intended to vest district courts with broad discretion to

determine, on an individualized, case-by-case basis, whether convenience and fairness

considerations weigh in favor of transfer.” (citing Stewart, 487 U.S. at 30–31)). The movant bears

the burden of establishing the need for a transfer, and a plaintiff’s choice of forum should not be

lightly disturbed. Jumara, 55 F.3d at 879.

“While there is no definitive formula or list of the factors to consider” in ruling on a § 1404

motion, “courts have considered many variants of the private and public interests protected by the

language of § 1404(a).” Jumara, 55 F.3d at 879 (citation omitted). The United States Court of

Appeals for the Third Circuit has explained that:

The private interests have included: plaintiff’s forum preference as manifested in

the original choice; the defendant’s preference; whether the claim arose elsewhere;

the convenience of the parties as indicated by their relative physical and financial

condition; the convenience of the witnesses—but only to the extent that the

witnesses may actually be unavailable for trial in one of the fora; and the location

of books and records (similarly limited to the extent that the files could not be

produced in the alternative forum).

The public interests have included: the enforceability of the judgment; practical

considerations that could make the trial easy, expeditious, or inexpensive; the

relative administrative difficulty in the two fora resulting from court congestion;

the local interest in deciding local controversies at home; the public policies of the

fora; and the familiarity of the trial judge with the applicable state law in diversity

cases.

Id. at 879-80 (citations omitted).

III. Discussion

FedEx argues that the only commonality between Atwood and Granado is that they were

opt-ins to the Claiborne action who were deposed. ECF No. 24 at 1. Otherwise, FedEx asserts,

they worked for different Service Providers in different states, Tennessee and Texas respectively,

and FedEx argues that their claims should be severed and transferred to more convenient forums.

Id. Plaintiffs argue that:

This case is straightforward, involving only two Plaintiffs—both of whom

delivered packages for FedEx. They allege that FedEx, as their joint employer, is

liable for unpaid overtime. . . . This case presents an ideal opportunity to serve as

a bellwether for the other 11,804 claims pending before this Court. Minimal or no

discovery is needed before trial. The Court is already familiar with the background

facts and the underlying law.

ECF No. 27 at 1 (citations omitted) (footnote omitted). The Court agrees with FedEx.

Both FedEx’s and Plaintiffs’ arguments are substantively identical to those raised in

Claiborne,2 and the Court hereby incorporates its analysis in that case herein. Quite simply, the

Court finds that severance is appropriate, and that both the private and public Jumara factors favor

transfer in this case. Accordingly, the Court will sever the claims of the two named Plaintiffs, and

will transfer these cases to the district courts located in Plaintiffs’ states of employment. This case

will be designated as stayed pending transfer, and, following transfer, will be closed in this District

thereafter.

2 So much so that the Court notes that Plaintiffs provide the following in this case: “[w]ith one proceeding, Plaintiffs

can share their trial costs. Splitting and transferring their claims, on the other hand, will multiply each Plaintiff’s trial

costs twelvefold.” ECF No. 27 at 15 (emphasis added). Of course, that line is taken directly from Plaintiffs’ counsel’s

brief in Claiborne, which now involves the claims of twelve individual plaintiffs. This case, on the contrary, involves

two, not twelve, Plaintiffs.

A. Misjoinder

Initially, there is no dispute that Plaintiffs’ claims could have been brought before the

district courts located in their places of employment. The Court agrees with the following

argument presented by FedEx: “as the nine certification losses have shown, there is no ‘bellwether’

case to be had because the issues relevant to each plaintiff’s claims will rise or fall on their own

individualized evidence.” ECF No. 30 at 1 (emphasis omitted).

The Court acknowledges that the standard for maintenance of a collective or class action

is different than that for Rule 20 permissive joinder, but it finds that Plaintiffs may overstate that

distinction in arguing against severance. That said, Plaintiffs, while acknowledging that key

distinctions exist among them,3 nonetheless, rely entirely on an assertion that only the issue of

joint employment will carry the day in this case, and that it supports the joinder of their claims.

Courts considering this exact issue in the context of lawsuits against FedEx have entirely

contradicted any such assertion. See Roy v. FedEx Ground Package Sys., Inc., No. 3:17-CV-

30116-KAR, 2024 WL 1346999, at *6-7 (D. Mass. Mar. 29, 2024) (“Even if the evidence on which

Plaintiffs rely might be sufficient to establish that some or all of them were denied some measure

of overtime pay, it does not show a common policy or practice imposed or endorsed by FedEx that

resulted in the alleged failures to pay overtime. There is no dispute that FedEx and the ISPs are

distinct organizations and that the ISPs hired and paid the drivers. . . . Even if the Campbell test is

the correct approach, and even if Plaintiffs can prevail on the joint employment question by

3 See Brannon et al. v. FedEx, 2:24-cv-1128, ECF No. 33 at 12 (“Fourth, the complexity of the factual issues involved

also weighs in Plaintiffs’ favor. As FedEx itself has claimed, conducting an independent investigation into whether

each of the 30,000 former Claiborne opt-ins have a valid claim for overtime wages would require sifting through, for

each individual, pages of scanner data and pay stubs to determine whether: (1) they drove for an ISP within the statute

of limitations period; (2) they drove, at any point, a vehicle with a Gross Vehicle Weight Rating of less than 10,001

pounds; (3) they worked more than 40 hours in any given week; and (4) they were not, in fact, paid overtime for those

qualifying weeks. That is plainly impossible to do within 120 days, even for those individuals for whom FedEx has

produced scanner data.”).

representative or common evidence, they will only reach the “starting line,” Martinez v. FedEx

Ground Package Sys., Inc., Civ. No. 20-1052 SCY/LF, 2023 WL 7114678, at *17 (D.N.M. Oct.

27, 2023), by showing that FedEx was their employer. Such evidence would not tend to show that

members of the provisional collective are similarly situated with respect to a consistent decision,

policy, or practice that caused them to be deprived of overtime pay.”); id. at *7 (“The court is not

persuaded that Plaintiffs have met their burden of showing that Plaintiffs are similarly situated

such that their claims can be tried by common or representative evidence.”); Martinez v. FedEx

Ground Package Sys., Inc., No. CV 20-1052 SCY/LF, 2023 WL 7114678, at *21 (D.N.M. Oct.

27, 2023) (“The Court agrees with Plaintiffs that the joint-employment issue is a significant issue.

Indeed, it is a threshold issue—as Defendant says, joint employment is required for Plaintiffs to

even get to the starting line. Once there, each driver would still have to prove their remaining

case on an individual basis: how they were paid; how many hours they worked, in what state they

worked; and whether their pay included premium time for each hour over 40 in a week.” (citation

omitted)); ECF No. 33-1 (citing Alleyne et. al. v. Federal Express Corporation, Case No. 1:24-cv-

12031-MGM for its holding that “Judge Robertson’s decision decertifying the collective action

strongly suggests that this case and Roy do not actually share the common factual basis necessary

to support the related case designation.”); ECF No. 33-2 (citing Doyle et. al. v. Federal Express

Corporation, Case No. 1:24-cv-12030-MGM for the same proposition).

Severance is also supported by decisions rendered by the Fifth Circuit in Acevedo v.

Allsup’s Convenience Stores, Inc., 600 F.3d 516, 522 (5th Cir. 2010) (affirming denial of mass

joinder of approximately 800 FLSA plaintiffs seeking overtime pay and providing “district courts

have considerable discretion to deny joinder when it would not facilitate judicial economy and

when different witnesses and documentary proof would be required for plaintiffs’ claims.”) and

the Ninth Circuit in Alvarado v. City of Los Angeles, 720 F. App’x 889, 904 (9th Cir. 2018)

(dismissing all but one plaintiff in each of 28 lawsuits filed by approximately 2,500 plaintiffs

“Plaintiffs-Appellants do not allege any greater connection between their claims than that the

City’s employees violated the FLSA in comparable ways, at various different times, and in various

different divisions and bureaus.”).

As noted, in determining whether severance is appropriate, courts consider whether the

issues sought to be severed are significantly different from one another and would require distinct

evidentiary proof, whether severance would promote judicial economy, and whether either party

will be unduly prejudiced by severance or its absence. Henderson, 639 F. Supp. 3d 486-87. Each

of these factors favors severance in this matter.

FedEx has more than adequately set forth the distinctions between the Plaintiffs’ claims in

this case, and Plaintiffs have not truly contradicted any such assertion. See ECF No. 24 at 4-5

(“Plaintiffs worked for different Service Providers in different states; Plaintiffs were paid

differently; Plaintiffs had different interactions and types of interactions with FedEx personnel;

Plaintiffs drove different types of vehicles with different weights; and Plaintiffs worked different

weekly hours. . . . When the facts arise from different pay, working conditions, and locations, it

cannot be said that they arose from the same transaction or occurrence.”); id. at 13 (“Different

witnesses and documentary proof will be needed for each Plaintiff, such as pay and hours

information from their Service Provider employers, vehicle information (particularly where

FedEx’s records are lacking), station management witnesses that can testify to Plaintiffs’ specific

claims about the allegations of control from each Plaintiff, as well as fact witnesses from the

Service Providers themselves.”). Plaintiffs’ claims do not arise from the same transaction,

occurrence, or series of transactions or occurrences, and severance is thus appropriate.

As will be discussed in further detail below, severance and transfer in a case such as this

will promote judicial economy and will not prejudice either party, as the issues will be simplified

by severance and allow for a speedier path to trial for each of the individual Plaintiffs. Continued

litigation in this forum is likely to result in delay as the Court would be required to resolve

individual motions for summary judgment and a cross motion for summary judgment. While the

Court is not unwilling to undertake the work required, it does find that efficiency and economy

will be promoted by severance and transfer, and further finds that severance is appropriate under

the discretionary factors discussed in Henderson.

B. Transfer

The Court finds that transfer of Plaintiffs’ severed claims is appropriate. Initially, there is

no dispute that Plaintiffs’ claims could have been brought before the district courts located in their

places of employment. While Plaintiffs’ preference is this District, the Court notes that,

“[a]lthough the plaintiff’s choice of forum is the most important Jumara factor, it becomes

significantly less so when the district is not the home forum of the plaintiff and most of the alleged

activity did not occur there.” Tatum v. Nat’l Football League, No. 2:13-CV-01814, 2014 WL

1652794, at *5 (W.D. Pa. Apr. 24, 2014). Because neither of the Plaintiffs can claim the Western

District of Pennsylvania as their home forum, and because most of the activity at issue in this case

occurred outside of this District, this Jumara factor is, at most, neutral.

FedEx prefers to litigate Plaintiffs’ claims in Plaintiffs’ home forums, where Plaintiffs

worked and where most witnesses and evidence will be located and available. While usually

entitled to less weight, the Court does find that this factor weighs in favor of transfer.

The Court does acknowledge, however, that FLSA claims arise in both the plaintiff’s state

of employment, where the policies at issue are effectuated, and in the forum in which the defendant

is headquartered, where the employer would have determined and maintained the challenged

policies and practices. Escalet v. Canada Dry Potomac Corp., No. CV 23-329, 2023 WL 5152626,

at *4 (E.D. Pa. Aug. 10, 2023) (quoting Stewart v. First Student, Inc., No. CV 20-2556, 2022 WL

16731231 at *3 (E.D. Pa. Nov. 7, 2022)). Because FedEx was headquartered in this District during

most, if not all, of the timeframe relevant herein,4 this factor weighs slightly against transfer, given

that Plaintiffs’ claims also clearly arose in their districts of employment as well.

As for convenience of the parties, the Court finds this Jumara factor to be neutral. While

the Court tends to agree with FedEx that inconvenient travel will be necessitated by litigation here,

Plaintiffs have chosen this forum. While not directly raised by Plaintiffs, the Court does note that

“the location of counsel carries little, if any, weight in an analysis under § 1404(a).” Tatum, 2014

WL 1652794, at *5 (Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970).

With respect to the convenience of witnesses, FedEx correctly notes that many witnesses

will be forced to travel if this case remains in this District given that Plaintiffs’ home forums and

states of employment are Tennessee and Texas. These witnesses are also outside the Court’s

subpoena authority under Fed. R. Civ. P. 45(c)(1), and this factor weighs in favor of transfer. The

location of books and records factor is neutral.

As to the public factors, the enforceability of the judgment factor is neutral, as a judgment

here or in the Plaintiffs’ home forums would be enforceable.

As for practical considerations that could make the trial easy, expeditious, or inexpensive

and the relative administrative difficulty in the two fora resulting from court congestion, the Court

finds that judicial economy and efficiency will be served by severance and transfer in this matter.

While the Court has issued several opinions in the Claiborne matter, most have dealt with

4 FedEx is now headquartered in Tennessee, Atwood’s state of employment. See ECF No. 30 at 12.

procedural or discovery issues, and any assertion of this Court’s familiarity with each of these two

Plaintiff’s claims is simply overstated. Moreover, FedEx has filed motions for summary judgment

as to each Plaintiff’s claims, and Plaintiffs have filed a cross motion. While the Court would strive

to deal with these motions expeditiously, the simple truth of the matter is that the separation of

Plaintiffs’ claims and transfer to separate jurisdictions will simplify issues and allow for speedier

resolution than this Court can provide. A single trial with multiple distinct claims also presents

ample opportunity for juror confusion. Simply put, while Plaintiffs’ counsel might be adversely

affected by transfer, Plaintiffs themselves will likely be benefitted. Where FedEx’s counsel stated

in a sworn declaration that Plaintiffs’ counsel stated that the parties “can have fun [litigating these

cases] together for the next 10 years or more,” see ECF No. 26-1 at ¶ 18, and where Plaintiff’s

counsel fails to truly dispute that statement, the Court believes it is plain that joint litigation is

against the interest of both judicial efficiency and economy, and is rather being used as a cudgel

to attempt to force a settlement that has not yet been, and appears unlikely to be, reached. These

factors weigh heavily in favor of transfer.

The factors of the local interest in deciding local controversies at home, the public policies

of the fora, and the familiarity of the trial judge with the applicable state law in diversity cases are

all neutral given that Plaintiff brings only FLSA claims in this case, which are clearly within this

Court’s original jurisdiction.

Only one of the Jumara factors weighs in favor of transfer, and only slightly. The other

Jumara factors are either neutral or weigh in favor of transfer, some heavily. This Court is vested

with broad discretion in determining whether convenience and fairness warrant transfer. Having

considered the relevant factors, the Court finds that transfer is both warranted and appropriate.

IV. Conclusion

For the reasons discussed above, the Court will grant the Misjoinder Motion. As noted,

this case will be designated as stayed pending transfer, and, following transfer, will be closed in

this District thereafter. An appropriate Order of Court follows.

BY THE COURT:

/s/Robert J. Colville_______

Robert J. Colville

United States District Judge

DATED: September 29, 2025

cc: All counsel of record