Seiffert v. Qwest Corporation et al

Filing 65

ORDER denying #30 Motion to Dismiss opt-in Plaintiffs, or in the Alternative, Transfer Venue. Signed by Judge Brian Morris on 12/14/2018. (MMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV-18-70-GF-BMM

JORDAN SEIFFERT, ON BEHALF
OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED,

ORDER
Plaintiffs,
vs.
QWEST CORPORATION D/B/A/
CENTURYLINK QC AND
CENTURYLINK
COMMUNICATIONS, LLC,
Defendants.

Plaintiff Jordan Seiffert, on behalf of himself, and all others similarly
situated, brings a collective action against Defendant Quest Corporation d/b/a/
CenturyLink QC and Defendant CenturyLink Communications, LLC (collectively
“CenturyLink” or “Defendants”). Defendants move to dismiss out-of-state
Plaintiffs and putative Plaintiffs, or, in the alternative, transfer the case to the
Western District of Louisiana where CenturyLink is headquartered. (Doc. 31.)
Plaintiff Seiffert opposes the motion. (Doc. 36.)

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DISCUSSION
I.

This Court Possesses Personal Jurisdiction Over CenturyLink with
Respect to the Claims of Non-Montana Opt-In Plaintiffs.
CenturyLink first alleges that the Court lacks personal jurisdiction over the

out-of-state Opt-in Plaintiffs’ claims. (Doc. 31 at 11.) The Court must determine
whether its exercise of personal jurisdiction would comport with (1) Montana’s
long-arm statute, and (2) constitutional due process requirements. Mattel, Inc. v.
Greiner and Hausser GmbH, 354 F.3d 857, 863 (9th Cir. 2003).
Personal jurisdiction exists if a corporation maintains certain minimum
contacts with the forum state such that maintenance of the suit does not offend
“traditional notions of fair play and substantial justice.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 918-19 (2011). Personal jurisdiction
exists either generally or specifically. Montana’s long-arm statute “permit[s] the
exercise of personal jurisdiction over nonresident defendants to the maximum
extent permitted by federal due process.” King v. Am. Family Mut. Ins. Co., 632
F.3d 570, 578 (9th Cir. 2011); Mont. R. Civ. P. 4(b)(1). The Court thus applies the
same analysis of its jurisdiction under Montana law and federal due process
requirements.
Specific personal jurisdiction exists under federal law if the following
elements are met: (1) the non-resident defendant purposefully directs his activities,
or performs some act that purposefully avails the defendant of the forum’s
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privileges; (2) the claim arises out of, or relates to, the defendant’s forum-related
activities; and (3) the exercise of jurisdiction comports with fair play and
substantial justice (i.e. is reasonable). King v. American Family Mut. Ins. Co., 632
F.3d 570, 579 (9th Cir. 2011) (citing Brayton Purcell LLP v. Recordon &
Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)).
Plaintiff Seiffert meets all three elements required for the Court to exercise
specific personal jurisdiction over CenturyLink. CenturyLink purposefully directed
its business activities to Montana via the internet and other media. Seiffert’s claim
arises out of CenturyLink’s alleged conduct in Montana, where the employment
relationship between CenturyLink and him existed. And third, the Court’s exercise
of personal jurisdiction over CenturyLink for the allegations against it in Montana
proves reasonable in light of the fact that it has offices, conducts business, and can
be found in this District, and the causes of action arise, in part, in this District.
Defendants rely on Bristol-Myers Squibb Co. v. Superior Court of Cal., San
Francisco Cnty., 137 S.Ct. 1773 (2017), to assert that the Court lacks specific
personal jurisdiction over the out-of-state Plaintiffs. A group of plaintiffs brought a
mass tort action against Bristol-Myers Squibb in California state court in which
they alleged state law claims. Id. at 1779. The plaintiffs included 86 people who
resided in California, and 592 people who resided in 33 other states. Id. The United
States Supreme Court determined that the California state court lacked personal

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jurisdiction over the state claims brought by the out-of-state plaintiffs as no
connection existed between the forum in California and the claims. Id. at 1782-83.
Plaintiffs premised the California state-based tort claims upon alleged
injuries from a drug manufactured by Bristol-Meyers Squibb. Id. at 1281. The outof-state plaintiffs were not prescribed the drug in California, did not purchase the
drug in California, did not ingest the drug in California, and did not suffer injuries
in California. Id. The mere fact that out-of-state plaintiffs suffered the same
injuries as the California resident plaintiffs did not extend the state court’s exercise
of specific personal jurisdiction to the out-of-state plaintiffs’ claims. Id. The
complaint lacked a connection between the forum and the specific claims at issue.
Id. The Supreme Court noted, however, that its decision in Bristol-Meyers did not
usurp “settled principles” of personal jurisdiction. Id. at 1283. The Supreme Court
“[left] open the question whether the Fifth Amendment imposes the same
restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 1784.
Defendants assert, similar to Bristol-Myers, that no connection exists
between the out-of-state Plaintiffs and Montana. Defendants point out that each
out-of-state Plaintiff resided and worked outside of Montana. (Doc. 31 at 18.)
Bristol-Myers addressed personal jurisdiction in the context of state law claims.
The putative out-of-state plaintiffs did not live in California, did not work in
California, and did not suffer their injuries in California. Bristol-Myers, 137 S.Ct.

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at 1779. Each putative out-of-state plaintiff suffered their injury in the state in
which they resided. Id.
Defendants ask the Court to extend Bristol-Meyers’s reasoning to a putative
FLSA collective action. Unlike the claims at issue in Bristol-Meyers, however, the
FLSA claims before the Court arise from a federal statute designed to address
employment practices nationwide. See 29 U.S.C. §§ 202, 207(a). The FLSA
collective action provision allows employees to bring claims on behalf of
themselves and other employees “similarly situated.” 29 U.S.C. § 216(b). The
FLSA does not limit claims to in-state plaintiffs. 29 U.S.C. § 216(b). An analysis
of a district court’s exercise of personal jurisdiction in the context of an FLSA
claim proves more germane to the Court’s decision.
The district court in Swamy v. Title Source, Inc., 2017 WL 5196780 (N.D.
Cal. Nov. 10, 2017), recently examined the scope of personal jurisdiction in FLSA
collective actions. Swamy involved the named plaintiff, an appraiser employed by
defendant, who allegedly had been misclassified as an exempt employee and not
paid overtime wages. Id. at *1. The named plaintiff brought a putative collective
action under the FLSA. Id.
The named plaintiff sought conditional certification of his FLSA collective
action on behalf of all “staff appraisers” that he alleged similarly had been
misclassified as exempt from overtime pay. Id. The claim defined the class as “all

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staff appraisers that worked for defendant at any time from three years prior to the
date the Court authorizes notice to the present.” Id. Defendants opposed
conditional certification of the class on the basis that the district court lacked
jurisdiction over non-California residents. Id. Defendants asked the district court to
extend the reasoning of Bristol-Meyers to the FLSA collective action. Id.
The district court recognized that “Bristol-Myers does not apply to divest
courts of personal jurisdiction in FLSA collective actions.” Swamy, at *2. FLSA
collective actions constitute “federal claims created by Congress specifically to
address employment practices nationwide.” Id. The district court further noted that
“Congress created a mechanism for employees to bring their claims on behalf of
other employees who are ‘similarly situated”’ Id.
This Court agrees with the reasoning in Swamy that the Supreme Court in
Bristol-Myers did not intend to restrict a federal district court’s personal
jurisdiction in FLSA collective actions authorized by Congress. Swamy, at *2.
Further, the issues presented appear nearly identical to those at issue in Swamy.
Seiffert, a former employee of CenturyLink, alleges that he improperly had been
classified as an exempt employee and thereby denied overtime to which he would
have been entitled. (Doc. 1 at 2-3.)
The collective class allegedly injured by CenturyLink that Seiffert seeks to
certify consists of “all persons who are or have been employed by CenturyLink as

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‘Engineer Is” and/or “Engineer IIs . . . whom CenturyLink classified as “exempt”
from FLSA overtime requirements[.]” Id. at 3. CenturyLink alleges that these
employees lack any connection to Montana. CenturyLink urges the Court to extend
the reasoning in Bristol-Meyers to Seiffert’s FLSA collective action. The district
court’s analysis in Swamy proves more applicable here. Bristol-Meyers does not
divest the Court’s personal jurisdiction over Seiffert’s “similarly situated” class
under the FLSA, regardless of where the Opt-in Plaintiffs may have suffered the
alleged injury. Nothing in the plain language of the FLSA limits its application to
in-state plaintiffs’ claims. 29 U.S.C. § 216(b).
CenturyLink further argues that Campbell v. City of Los Angeles, 903 F.3d
1090 (9th Cir. 2018), stands for the proposition that a party must demonstrate that
a district court possesses personal jurisdiction as to each opt-in member of a
collective action. The Ninth Circuit analyzed whether a pair of collective actions
brought by officers of the Los Angeles Police Department should be decertified on
the ground that the officers within each action were not “similarly situated”
pursuant to 29 U.S.C. § 216(b).
The Ninth Circuit clarified the distinction between an FLSA collective
action and class action brought under Fed R. Civ. P. 23. Each plaintiff who opts in
to a collective action under the FLSA becomes an equal party to the lawsuit.
Campbell, 903 F.3d at 1104 (citing Halle v. W. Penn Allegheny Health Sys. Inc.,

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842 F.3d 215, 225 (3d Cir. 2016)). An action for an opt-in plaintiff is deemed
“commenced” when the plaintiff files its opt-in form with the district court.
Campbell, 903 F.3d at 1104 (citing 29 U.S.C. § 256). This form of collective
action under the FLSA differs from a Rule 23 class action. The named plaintiff
under Rule 23 litigates the class members’ interests on behalf of the class
members. Campbell, 903 F.3d at 1105.
CenturyLink insists that the Ninth Circuit’s reasoning in Campbell extends
to the issue of personal jurisdiction in FLSA collective actions. Campbell
addressed the issue of decertification. This decision regarding decertification
occurs after opt-in plaintiffs have filed their forms with the district court. Id. at
1101. Seiffert’s collective action has not yet reached the notice phase of litigation.
The issue of whether a district court possesses personal jurisdiction cannot
be premised upon the residence of each opt-in plaintiff. No FLSA collective action
case ever could reach the certification issue if the district court had to evaluate
whether it possessed personal jurisdiction over each new opt-in plaintiff. The
residences of the opt-in plaintiffs lack relevance to the issue of specific
jurisdiction. See AM Tr. v. UBS AG, 78 F.Supp.3d 977, 968 (N.D. Cal. 2015),
aff’d, 681 Fed. App’x 587 (9th Cir. 2017) (determining that the claims of the
named parties to the lawsuit constituted the only relevant consideration for
purposes of determining personal jurisdiction).

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The original plaintiff in a collective action under the FLSA dictates a district
court’s analysis of specific jurisdiction. Id. The district court in Senne v. Kansas
City Royals Baseball Corp., 105 F.Supp.3d 981, 1022 (N.D. Cal. 2015), reached a
similar conclusion with regard to a collective action involving minor league
baseball players who worked and resided throughout the country. The Court has
determined that specific jurisdiction exists over Plaintiff Seiffert’s claim. Campbell
does not compel a different conclusion with regard to the Court’s exercise of
personal jurisdiction. Defendants do not contend that the Court lacks the power to
exercise specific jurisdiction over Seiffert’s claim.
The Court possesses personal jurisdiction over Seiffert, the sole named
plaintiff in this FLSA collective action. This proper exercise of personal
jurisdiction over Seiffert proves sufficient at this stage of the case to satisfy the
personal jurisdiction requirement for an FLSA collective action. The Supreme
Court’s analysis in Bristol-Myers did not intend to restrict the Court’s exercise of
personal jurisdiction in FLSA collective action cases. Bristol-Myers, 137 S.Ct. at
1782-83; Swamy, at *2.
II.

CenturyLink is Not Entitled to Move This Case to Louisiana.
“For the convenience of the 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

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consented.” 28 U.S.C. § 1404(a). Defendants argue that the Court should transfer
the case to the Western District of Louisiana. CenturyLink maintains its
headquarters in Louisiana and a district court in Louisiana could exercise its
general jurisdiction over CenturyLink. (Doc. 31 at 20.)
The moving party bears the burden of proof to show why the forum should
be changed. Anderson v. Thompson, 634 F.Supp. 1201, 1204 (D. Mont. 1986). A
court should deny the motion to transfer where the transfer only would shift the
inconvenience from the defendant to the plaintiff. Id. The Court previously
analyzed five factors pursuant to a similar transfer request made by CenturyLink in
Grady v. CenturyLink, CV-15-85-BLG-BMM (Doc. 36-1.). These factors included:
(1) plaintiffs’ choice of forum; (2) the location where relevant agreements were
negotiated and executed; (3) access to proof; (4) convenience of witnesses and
availability of compulsory process; and (5) relevant contacts. Id. at 3-8.
The Court in Grady deferred to the Plaintiffs’ choice of forum in light of
both parties’ significant contacts. Id. at 4. The Court determined the location of
relevant agreements and access to proof elements to be neutral. Id. at 4-5. The
convenience of witnesses and availability of compulsory process element weighed
slightly in favor of transfer because some witnesses live outside the potential
forums. Id. Finally, the relevant contacts element weighed against transfer. Both
plaintiffs in Grady lived and worked in Montana during the relevant time period

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and CenturyLink conducted business in Montana, where the cause of action arose.
Id. at 7-8.
Defendants seek to distinguish the facts of this case from Grady to sway the
factors in favor of transfer (Doc. 31 at 13.) Defendants allege that, unlike Grady,
Seiffert’s choice of forum should be afforded little weight now that he lives outside
Montana. Id. Defendants argue that Seiffert’s move outside Montana distinguishes
the case from Grady, where one of the named plaintiffs continued to reside in
Montana when the plaintiffs brought the action.
Courts generally grant great weight to a plaintiff’s choice of forum. Lou v.
Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). A plaintiff’s choice of forum should
be given less weight, however, when an individual represents a class under Rule
23. Id. The court should consider the extent of both parties’ contacts to decide the
weight to be assigned to the plaintiff’s choice of forum. Id. The court should afford
only “minimal consideration” to the plaintiff’s choice of forum when no operative
facts occurred within the forum and the forum possesses no interest in the parties
or subject matter. Id. As noted by the Ninth Circuit in Campbell, however, a Rule
23 class action differs from the FLSA collective action filed by Seiffert. Campbell,
904 F.3d at 1105.
The same reasoning and conclusion apply to the facts of this case as in
Grady. Identical to the plaintiffs in Grady, Seiffert lived and worked in Montana

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during the time when the alleged misconduct by CenturyLink occurred.
CenturyLink employed Seiffert in Montana. Seiffert alleges that he suffered
damages caused by CenturyLink in Montana. The operative facts occurred within
Montana. The Court defers to Seiffert’s choice of forum.
Defendants next argue that Louisiana represents the more convenient forum.
(Doc. 31 at 23.) Defendants point out that neither Seiffert, nor any opt-in Plaintiff,
currently reside in Montana. Montana would be convenient for no party. Id. at 25.
Further, Defendants argue that nonparty witness convenience favors transfer. Id.
Finally, Defendants argue that Louisiana would be a more convenient and less
expensive forum for CenturyLink. Id.
The reasoning in Grady applies here. Most of the major witnesses in Grady
would have consisted of the parties themselves or the employees of CenturyLink.
Some of the witnesses in Grady lived outside any of the potential forums. The
district court in Senne faced a similar issue. The district court examined an FLSA
collective action brought by current and former minor league baseball players who
asserted that they had been paid illegally low wages. Senne, 105 F.Supp.3d at 991.
Approximately 188 minor league teams operated throughout the United
States. Defendants asked the district court to transfer the action to the Middle
District of Florida, where 23 minor league teams were based. Id. at 1045-1046.
Defendants argued that the Middle District of Florida contained the greatest

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concentration of minor league teams and employees. Id. at 1046. Defendants
pointed out that the training occurred in Florida and that most players had signed
contracts in Florida. Id.
The district court recognized that parties and witnesses resided throughout
the country. These parties and witnesses would be required to travel regardless of
where the trial took place. The transfer of the action would “simply shift the
inconvenience from some parties and witnesses to others.” Id. at 1060. This factor
weighed against transfer and the district court declined to transfer the case. Id.
The transfer of this action outside Montana similarly would “shift the
inconvenience from some parties and witnesses to others.” Id. As in Grady, nearly
all Plaintiffs reside outside Montana and Louisiana. The main witnesses likely will
consist of the parties themselves and CenturyLink employees. The majority of
potential employee witnesses live outside both Montana and Louisiana. Defendants
argue that a federal court in Louisiana would possess greater subpoena power
under Rule 45 than this Court. This factor weighs only slightly in favor of transfer
as it did in Grady.
Finally, Defendants argue that Seiffert lacks any contacts with the forum
because Seiffert no longer lives or works in Montana. Defendants point out that no
named plaintiff now resides in Montana and only 25 opt-in Plaintiffs reside in
Montana. (Doc. 31 at 25.) Seiffert both lived and worked in Montana during the

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relevant time period. CenturyLink continues to conduct business in Montana. The
cause of action arose from that conduct in Montana. This factor weighs against
transfer.
CONCLUSION
Having considered the motion to dismiss, and the factors pertinent to the
motion to transfer the present action to the Western District of Louisiana, the Court
has determined that the factors weigh against transfer.
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss optin Plaintiffs, or in the Alternative, Transfer Venue (Doc. 30) is DENIED.

DATED this 14th of December, 2018.

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