BEERY et al v. QUEST DIAGNOSTICS, INC. et al

Filing 58

MEMORANDUM OPINION fld. Signed by Judge Kevin McNulty on 7/8/13. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 12-cv-00231 (KM)(MCA)

ERIN BEERY, et al.,
Plaintiffs,

MEMORANDUM OPINION
V.

QUEST DIAGNOSTICS, INC., and
AMERIPATH, INC.,
Defendants.

The Fair Labor Standards Act of 1938 provides that an employee may
bring an action to recover damages for specified violations on the Act on behalf
of herself and other “similarly situated” employees. In this case, three named
Plaintiffs filed such an action. After the Defendants moved to dismiss the
claims of all three Plaintiffs based on arbitration clauses in their employment
agreements, four individuals filed “consent to join” statements in which they
sought opt in to the Equal Pay Act collective action as plaintiffs. This Court
subsequently dismissed the claims of the three named Plaintiffs based on the
contractual arbitration clauses. Whether this case remains justiciable, then,
depends on the status of the four individuals who filed consent-to-join forms.
For the reasons set forth below I find that, in the absence of conditional
certification by the court, the mere filing of consent-to-join forms does not
confer party-plaintiff status. Therefore, following the dismissal of all claims of

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the three named Plaintiffs, this Court does not retain jurisdiction over the
Equal Pay Act claim.
I.

Procedural Background

On April 2, 2012, Plaintiffs Erin Beery, Heather Traeger, and Sandy
Cooper filed an Amended Complaint that included a putative collective action
claim under the provisions of the Fair Labor Standards Act, as amended by the
Equal Pay Act (29 U.S.C. § 216(b)). Defendants moved to dismiss all claims of
all three plaintiffs in favor of arbitration. The motions to dismiss the complaint
and compel arbitration were fully briefed in August 2012. On October 4, 2012,
without seeking conditional certification of the Equal Pay Act claim, Kandace
Pritchett, Amy Kioner, and Susan Rodriguez filed consent-to-join forms, in
which they sought to opt in to the Equal Pay Act Claim. Racquelle Rockwell
filed a similar consent-to-join on November 7, 2012. On January 18, 2013, the
named Plaintiffs moved to conditionally certify their proposed Equal Pay Act
collective action and to send notice to other employees who might wish to opt
in. I administratively terminated that motion on January 29, 2013, because I
deemed it prudent to first address Defendants’ pending motions to dismiss
before addressing Plaintiffs’ motion for conditional collective action
certification.
On June 17, 2013, this Court dismissed all of the claims of the three
named Plaintiffs in favor of arbitration. That June 17, 2013 order directed the
parties to submit letter briefs on whether this Court retains jurisdiction over
the proposed Equal Pay Act collective action given that certain individuals had
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filed consent-to-join forms, but conditional certification had not been granted

and court-approved notice had not been sent to employees.
II.

DISCUSSION

Section 216(b) of the Fair Labor Standards Act sets forth the
requirements for becoming a “party plaintiff’ in a collective action. It provides:
by
may be maintained against any employer.
An action to recover.
any one or more employees for and in behalf of himself or themselves
and other employees similarly situated. No 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.
.

.

.

.

29 U.S.C. §216(b).
This Court uses a two-stage certification process to determine whether
employees are “similarly situated” for purposes of a FLSA collective action. At
the first stage, known as conditional certification, if the court makes a
preliminary determination that the complaint has successfully defined a group
of similarly situated employees, notice of the suit is sent to this class of
employees, and they may join the action by returning a signed consent form to
the court. Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 535-36 (3d Cir. 2012).
The burden for conditionally certifying a collective action requires the plaintiff
to show that the “employees enumerated in the complaint can be provisionally
categorized as similarly situated to the named plaintiff.” Symczyk v. Genesis
Healthcare Corp., 656 F.3d 189, 194 (3d Cir. 2011).’

This Court of Appeals case was reversed on other grounds by Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the Supreme Court case
discussed below.
I

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Here, the Court has not conditionally certified the collective action; nor
has notice been given to putative opt-ins. Plaintiffs maintain that conditional
certification is not necessary for purported opt-ins to attain party-plaintiff
status. In Plaintiffs’ view, if an individual files a consent-to-join form, that
individual should be regarded as a party-plaintiff in the case. Recent Supreme
Court precedent counsels against Plaintiffs’ interpretation and suggests that
plaintiff status does not arise unless and until the court finds that the named
plaintiffs and the opt-in party are “similarly situated,” conditionally certifies the
class and approves the sending of notice.
In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the
Supreme Court granted certiorari to resolve whether a FLSA collective action is

justiciable when the plaintiff’s individual claim becomes moot. In Symczyk, the
Defendant/Employer served the Plaintiff with an offer of judgment under Fed.
R. Civ. P. 68. The offer included $7,500 for alleged unpaid wages, in addition to
reasonable fees and costs. Id. at 1527. After Plaintiff failed to respond to the
offer, the employer moved to dismiss for lack of subject matter jurisdiction. The
employer argued that because they offered Plaintiff complete relief on her
claim, she no longer possessed a personal stake in the outcome of the suit;
therefore, the action was moot. The District Court found that it was undisputed
that no other individuals had opted-in to the suit and that the Rule 68 offer of
judgment fully satisfied her individual claim. Therefore, the district court
dismissed the suit for lack of subject matter jurisdiction. Id.

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The Third Circuit reversed. The Court of Appeals reasoned that
calculated attempts by some defendants to “pick off’ named plaintiffs with
strategic Rule 68 offers could short circuit the certification process and thereby
frustrate the goals of collective actions. The Third Circuit ordered the case
remanded in order to allow respondent to seek “conditional certification” in the
District Court. Id.
The Supreme Court reversed based on “[a] straightforward application of
well-settled mootness principles.

.

.

.“

Id. at 1529. The Supreme Court

reasoned that “[u]nder the FLSA, by contrast [with Rule 23 class actions],
‘conditional certfication’ 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.

.

.

who in turn become parties to a collective action only by filing

written consent with the court, § 216(b).” Id. at 1530 (emphasis added; internal
citation omitted).
It is clear that the Supreme Court envisioned the more common
sequence of conditional certification, followed by court-approved notice,
followed by the filing of opt-in forms. Following that timeline, conditional
certification alone does not confer party status. Implicit in Symczyk’s holding is
that all of these conditions

—

(1) conditional certification, (2) notice to purported

opt-ins, and (3) the filing of consents to join

—

are required for opt-ins to

become parties to the action. Were it not so, there would be far less reason to

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fear that defendants could extend individual Rule 68 or settlement offers and
moot the action.
Here, as in Symczyk, the named Plaintiffs’ claims were dismissed in the
absence of any conditional certification of the Equal Pay Act collective action
claim.

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Retaining jurisdiction over the named Plaintiffs’ now-defunct Equal Pay

Act claim, swapping in as plaintiffs the four individuals who filed consent-tojoin forms, would be inconsistent with the reasoning, if not the holding, of
Symczyk. Symczyk contemplates that district courts will first determine that
employees are “similarly situated” to the named plaintiffs, to supervise the
sending of proper notice, and then join opt-ins as co-plaintiffs. Until the status
of the named plaintiffs and their claims is settled, it is impractical if not
impossible to determine whether third parties are “similarly situated” to them.
The four individuals who filed consents-to-join without conditional
certification or court ordered notice are not party-plaintiffs in this case.
For the foregoing reasons, this Court lacks jurisdiction over the Equal
Pay Act claim, and it is ordered that the case is DISMISSED in its entirety. This
dismissal is without prejudice to the ability of the putative opt-in plaintiffs to
pursue whatever remedies may be available to them. It is the intention of the
Court that this order finally dispose of all claims as to all parties in this case.

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I note in passing that the named Plaintiffs’ claims in this case were not
mooted by some defense “pick-off’ stratagem; rather, they were properly
dismissed in light of the arbitration agreements. The opt-in plaintiffs, then, are
trying to join in with claims and parties that never belonged in federal court in
the first place.
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M

KEVIN MCNULTY
United States District Judge
Date: July 8, 2013

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