ROSARIO et al v. FIRST STUDENT MANAGEMENT LLC et al
MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/23/2017. 3/23/2017 ENTERED AND COPIES E-MAILED.(amas)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARIBEL ROSARIO, et al.,
individually and on behalf of similarly
FIRST STUDENT MANAGEMENT
LLC, and FIRST STUDENT INC.,
March 23, 2017
This is an action brought under the Fair Labor Standards Act (FLSA) and
Pennsylvania’s Wage Payment and Collection Law (WPCL) by the plaintiffs against First
Student Management LLC and First Student Inc. (collectively “First Student”). 1 First
The named plaintiffs include Maribel Rosario, Luz Tintinagoz, Judy Rehrig, Walid
Nadrams, Barry Demko, Maria Lopez, Jesica Marinez, Delinda Santiago, Carlos Cordero, Juana
Cordero, Joseph Barner, Isaac Maldonado, Tanika Johnson, Juana Espinal, Polly Bieber,
Dorothea Wolbach, Alvin, Oltevo, Miledis Rosaio DeCestino, Brenda Vera, Maria Sanchez,
Maria Soler, Grisette Quiones, Ana Parez, Virginia Maldonado, Estella Faust, Barbara Repasch,
Rode Espinal, Carlene Haas, Nicole Fenstarmaker, Rosa Figueroa, Donna Betz, Belinda Diza,
Mike Cech, Jacqueline Canales, Jeffrey Delbrey, Llanely Hernandez, Batania Pinentel, Ariselle
Pineda, Candy Zavala, Debbie Hausrath, Telma Sorto, Maria Theu, Yuclerca Lausell, Giana
Lopez, Mayra Munoz, Tina Reppertq, Michael DeHaven, Sherrie Anabui, Eric Montoya, Melissa
Fermin, Ana Sanchez, Brendaliz Aponte, Urbana Lalamn, Lucie Strohl, Limary Ortiz, Wayne
Chenevert, Jessica Marinez, Dana Cappel, Darlene Perry, Diane Kelchner, Justina Keelan,
Nicole Tucker, Gloria Knappenberger, Jennifer Wilson, Carolyn Kilian, Mae Kline Klyde Twiss,
Veronica Margiotto, Margaret Tichy, Katholine McEldridge, Jesus Elias, Joffre Ojeda, Foten
Awid, Kenneth Swaver, Wanda Munoz and Sandra Gonzalez. (Doc. No. 17 ¶¶ 2–77).
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Student employed the plaintiffs as bus drivers and driver assistants, and the plaintiffs now
seek to recover wages to which they claim entitlement under the FLSA and WPCL.
The amended complaint sets forth the following claims: (1) an overtime claim
under the FLSA; (2) a straight time claim under the WPCL; and (3) an overtime claim
under the WPCL. 2 First Student filed a motion to dismiss the amended complaint for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the reasons discussed below, I am granting the motion to dismiss.
First Student is a nationwide provider of student transportation with operations in
forty-two different states. In Pennsylvania alone, First Student operates thirty-seven
separate bus yards that contract with local municipal schools to provide students with
intrastate transportation to extracurricular activities. In and before 2013, First Student
employed the seventy-five plaintiffs as bus drivers and driver assistants.
Pre-Trip and Post-Trip Driving Activities
When First Student agrees to a contract to provide student transportation for a
school district, First Student secures an estimate as to the approximate time it would take
to drive each route under the contract (“route estimate”). These route estimates are then
entered into FOCUS, a computer system which generates an agenda of bus route tasks
that must be performed and assigns a driver to each route at the beginning of each work
This is the second motion to dismiss I have entertained in this case. I granted First
Student’s original motion to dismiss. I dismissed the FLSA straight time claims with prejudice
and dismissed the FLSA overtime claim and the WPCL claims without prejudice. (Doc. No. 13).
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day. The route estimates are compiled for each driver to form a “standard hours” estimate
of the projected time the employee will work for a given week.
The drivers and assistants are instructed to appear at the bus yard at a predesignated time, usually 7:30 a.m. for morning runs and 1:30 p.m. for afternoon runs.
When the drivers and assistants arrive at the yard, they sign in to receive their route
assignment for the day. After receiving their assignments, the drivers perform an
inspection of the bus and log into the EVIR system with their employee badge, at which
time they are counted as being “on the clock.” The plaintiffs are not paid “on the clock”
until they store their inspection report in the EVIR system. The pre-trip activities which
the drivers and assistants have to perform prior to logging their inspection report into
EVIR take approximately six minutes. First Student does not keep track of the six
minutes spent on these pre-trip activities.
When drivers return to the yard after their assigned bus run, they are required by
law and First Student policy to conduct a post-trip inspection on their vehicle. In practice,
this means that once the vehicle is parked, the driver logs back into EVIR at which time
he is considered to be “off the clock.” However, the driver must then perform the posttrip inspection which involves cleaning out the bus, checking to make sure there are no
sleeping children, reporting any issues to the office and returning their equipment. The
post-trip inspection takes approximately six minutes. First Student does not track posttrip activities and drivers and assistants are not paid for the six minutes it takes to perform
these post-trip activities.
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When a driver logs into EVIR for purposes of the pre-trip inspection, the EVIR
system sends a notice to FOCUS that the driver has commenced the inspection and
FOCUS logs this notice in the standard hours report as the “task start time.” Similarly,
when a driver logs into EVIR for purposes of the post-trip inspection, EVIR sends a
notice to FOCUS that the driver has commenced the post-trip inspection and FOCUS
logs this notice in the standard hours report as the “task end time.” The elapsed time
between the task start time and the end task time is compared to the route estimate and if
the elapsed time is within the tolerated frame set in the FOCUS system, the driver is paid
for the route estimate. If the elapsed time is not within the tolerated frame set in the
FOCUS system, FOCUS creates an exception report. According to the plaintiffs, First
Student routinely ignores the exception reports and pays drivers only the route estimate
despite the fact that drivers may have worked for a longer time. If a driver does seek
payment for all time worked rather than just payment for the route estimate, the driver
must provide the documentation supporting the extra time.
In their original complaint, the plaintiffs brought a straight time claim under the
FLSA, an overtime claim under the FLSA, and two claims under Pennsylvania’s WPCL.
I dismissed the FLSA straight time claim with prejudice. Rosario v. First Student Mgmt.
LLC, Civ. A. No. 15-6478, 2016 WL 4367019, at *8 (E.D. Pa. Aug. 16, 2016).
I dismissed the plaintiffs’ FLSA overtime claim because none of the plaintiffs met
the pleading standard for a FLSA overtime claim. Id. at *6 (citing Davis v. Abington
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Mem’l Hosp., 765 F.3d 236 (3d Cir. 2014)). In doing so, I discussed the specific
requirements for pleading a FLSA overtime claim, as dictated by the Third Circuit in
Davis, and allowed plaintiffs to amend this claim. Id. at *6, 8. I dismissed the plaintiffs’
WPCL claims because they failed to allege a contract entitling them to wages, which is a
prerequisite to bringing a WPCL claim. Id. at *7–8. I also permitted the plaintiffs to
amend their WPCL claims. Id.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted examines the legal
sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Following
the Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), pleading standards in federal
actions have shifted from simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to allege facts sufficient to show that the plaintiff has a “plausible
claim for relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A
facially plausible claim may not be supported by conclusory allegations, but must allow
the court “to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
When presented with a motion to dismiss for failure to state a claim under Rule
12(b)(6), district courts should conduct a two-part analysis. Fowler, 578 F.3d at 210.
First, the court must separate the factual and legal elements of the claim. Id. The court
“must accept all of the complaint’s well-pleaded facts as true, but may disregard any
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legal conclusions.” Id. Second, the court must determine whether the facts alleged in the
complaint demonstrate that the plaintiff has a “plausible claim of relief.” Id. (citing
Iqbal, 556 U.S. at 678).
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short
and plain statement of the claim showing that the plaintiff is entitled to relief.” Iqbal, 556
U.S. at 677-78. While Federal Rule of Civil Procedure 8(a)(2) does not require the
plaintiff to plead detailed factual allegations, it does demand “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678. In other words, a pleading
that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. Moreover, a pleading is not sufficient
if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.
As mentioned above, this is an action brought under the Fair Labor Standards Act
(FLSA) and Pennsylvania’s Wage Payment Collection Law (WPCL). First Student filed a
motion to dismiss the plaintiffs’ amended complaint, under Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim. I will grant the motion to dismiss.
The FLSA Collective Action
The posture and nature of this case requires an understanding of the FLSA
Employees may bring actions on behalf of themselves and “other employees
similarly situated” for specific violations of the FLSA. 29 U.S.C. § 216(b); Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1526 (2013). This mechanism is known
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as a “collective action.” Symczyk, 133 S. Ct. at 1526; see also Halle v. West Penn
Allegheny Health Sys. Inc., 842 F.3d 215, 222–27 (3d Cir. 2016) (explaining the
fundamentals of a FLSA collective action). 3
In the context of a collective action, the distinction between “named plaintiffs”
and “unnamed plaintiffs” is crucial. As recently explained by the United States Court of
Appeals for the Third Circuit, “[t]he collective action is a form of group litigation in
which a named employee plaintiff or plaintiffs file a complaint in behalf of a group of
other, initially unnamed employees who purport to be similarly situated to the named
plaintiff.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 85 (3d Cir. 2017) (internal
footnote and quotations omitted) (citing Halle, 842 F.3d at 223).
Courts employ a two-step approach in determining whether an action under the
FLSA can be certified as a collective action. Halle, 842 F.3d at 224. The first step
requires a “named plaintiff to make a ‘modest factual showing’—something beyond mere
speculation—to demonstrate a factual nexus between the manner in which the employer’s
alleged policy affected him or her and the manner in which it affected the proposed
collective action members.” Id. If the named plaintiffs meet their burden at this first step,
A collective action under the FLSA is different than a class action brought under
Federal Rule of Civil Procedure 23. When a class action under Rule 23 is filed, the proposed
class of plaintiffs is automatically deemed a part of the action unless they individually opt out of
the action. Halle, 842 F.3d at 224. A collective action under the FLSA works the opposite way.
Under the FLSA, “the existence of a collective action depends upon the affirmative participation
of opt-in plaintiffs,” meaning that the proposed class of plaintiffs only becomes a part of the
action if they individually opt in. Id. Potential plaintiffs in a FLSA collective action “opt in” by
filing consent-to-join forms with the district court. Id. at 225. However, these opt-in plaintiffs
only become a part of the collective action if the court subsequently deems them similarly
situated to the named plaintiffs. Id. at 225–26. This distinction permeates this case and is
discussed in greater detail infra.
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“the court will ‘conditionally certify’ the collective action for the purposes of facilitating
notice to potential ‘opt-in’ plaintiffs.” Camesi v. University of Pitt. Med. Ctr., 729 F.3d
239, 243 (3d Cir. 2013). Once the collective action is conditionally certified, the parties
conduct discovery and employees wishing to join the collective action must opt in. Id.
After discovery, the second step of the certification process requires the court to make a
final determination as to whether the named plaintiffs are “similarly situated” to the optin plaintiffs. Id. This second step is sometimes referred to as “final certification.” Id.
Thus, there is a fundamental difference under the FLSA between a “named
plaintiff” and an “opt-in” plaintiff. Halle, 842 F.3d at 222–27. Unlike the named
plaintiffs, who commence their action by formally filing a complaint, “opt-in” plaintiffs
are not named in the complaint. Karlo, 849 F.3d at 85. Instead, “opt-in” plaintiffs seek to
join the action as parties by filing consent-to-join forms after the complaint is filed. If the
court determines that the opt-in plaintiffs are similarly situated to the named plaintiffs, at
that point, the opt-in plaintiffs become actual parties to the action. Halle, 842 F.3d at
226–27. Even so, the collective action still proceeds on a “representative status,” meaning
that the named plaintiffs represent the interests of the opt-in plaintiffs. Id. at 226. 4
To be sure, this case has not yet proceeded to the certification stage. Neither party
has filed a motion for conditional certification. Nonetheless, the legal distinction
An “opt-in” plaintiff is the same thing as an “unnamed plaintiff.” The point is that optin plaintiffs are not named in the complaint and the FLSA’s certification process requires these
unnamed plaintiffs to opt in. Throughout this Opinion, the terms “unnamed plaintiff” and “optin” plaintiff are used interchangeably.
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between “named plaintiffs” and “opt-in” (or “unnamed”) plaintiffs is critical to the instant
motion to dismiss.
This action was commenced by seventy-six named plaintiffs who filed a complaint
against the defendants. (Doc. Nos. 1, 17 at 2). These seventy-six individuals brought
FLSA claims against the defendants as named plaintiffs “on behalf of themselves and a
class of other similarly situated employees.” (Doc. No. 17 ¶ 1). Interestingly, months
after filing the original complaint, some of the named plaintiffs filed consent-to-join
forms. (Doc. No. 9). In these consent-to-join forms, they indicated their intent “to be
represented by the named plaintiffs and lead counsel.” (Doc. No. 9-1 ¶ 4 at each page).
The practice of filing a consent-to-join form is a procedure reserved for “opt-in”
plaintiffs—not “named” plaintiffs. E.g., Halle, 842 F.3d at 225. The “opt-in” plaintiffs
are “initially unnamed” in the complaint, Karlo, 849 F.3d at 85, and may later join the
action as parties only if they are certified by the court as being “similarly situated” to the
named plaintiffs, Halle, 842 F.3d at 225–26 & n.10. Therefore, in this case, the named
plaintiffs’ filing of consent-to-join forms was superfluous given that they were already
named plaintiffs by virtue of their filing of the complaint. 5
With this understanding in mind, I will now consider whether the named plaintiffs
have alleged a plausible overtime claim under the FLSA.
In other words, the named plaintiffs did not become opt-in plaintiffs simply because
they filed consent-to-join forms after they filed their complaint. By initially filing the complaint,
and pleading that they were bringing the action “on behalf of . . . a class of other similarly
situated employees,” (Doc. Nos. 1, 17 ¶ 1), these individuals assumed the role of “named
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The Named Plaintiffs’ FLSA Overtime Claims
The distinction between “named plaintiffs” and “opt-in” plaintiffs is crucial here
because only “named plaintiffs” have a duty to plead plausible claims. Obviously, the
opt-in plaintiffs have no burden to state a claim for relief in the complaint because opt-in
plaintiffs are not named in a complaint.
In Davis v. Abington Memorial Hospital, the U.S. Court of Appeals for the Third
Circuit set forth the proper pleading standard for a FLSA overtime claim. 765 F.3d 236,
241 (3d Cir. 2014). The court held that, “in order to state a plausible FLSA overtime
claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as
well as some uncompensated time in excess of the [forty] hours.” Davis, 765 F.3d at 241
(alterations in original) (quoting Lundy v. Catholic Health Sys., 711 F.3d 106, 114 (2d
Cir. 2013)). Applying this rule, the court dismissed the named plaintiffs’ FLSA overtime
claims because each named plaintiff failed to plead “a single workweek in which he or
she worked at least forty hours and also worked uncompensated time in excess of forty
hours.” Id. at 243.
In this case, only three of the seventy-six named plaintiffs have alleged plausible
claims under the FLSA: Nicole Tucker, Brenda Vera, and Jessica Marinez. (Doc. No. 17
¶¶ 202–38). 6 The other seventy-three named plaintiffs, like the plaintiffs in Davis, have
failed to allege a single workweek in which they worked forty hours and were also not
The amended complaint alleges a FLSA overtime claim on behalf of an individual
named Tina Turner-Miller. (Doc. No. 17 ¶¶ 229–34, 36). However, Tina Turner-Miller is not a
party to this action. (Id. ¶¶ 2–77). Thus, she has no viable claim as a named plaintiff. First
Student points this out in its motion to dismiss, but the plaintiffs fail to address Ms. TurnerMiller anywhere in their response to First Student’s motion to dismiss. (Doc. No. 21).
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compensated for their overtime. Plaintiffs argue that each named plaintiff does not need
to allege a FLSA violation because a FLSA collective action is representative in nature.
According to plaintiffs, because they allege instances in which three of the named
plaintiffs were not compensated for time worked in excess of forty hours, all seventy-six
named plaintiffs have stated claims. This is simply not true.
More specifically, plaintiffs contend that “it would be simply impossible for every
member of a collective action under the FLSA with opt-ins being added as they are
discovered to comply with a standard that required the pleading to list every instance of a
workweek where every plaintiff was cheated out of the overtime pay he or she had
earned.” (Doc. No. 21 at 8) (emphasis added). However, this is not the law. Nor is it First
Student’s proposed pleading standard. Plaintiffs are correct that the law does not require
“every plaintiff” or “every member of a collective action” to meet the pleading standards
of Rule 8. See Karlo, 849 F.3d at 85 (explaining that only the “named employee
plaintiffs” must file a complaint, while the “initially unnamed employees” become parties
later through the opt-in process). However, the law does require every named plaintiff to
plead a FLSA violation. Davis, 842 F.3d at 242–43. In sum, although every potential
member of a FLSA collective action need not satisfy Rule 8’s pleading requirements,
every named plaintiff who elects to file suit must. 7
Davis, and our FLSA jurisprudence, makes clear that named plaintiffs in a putative
FLSA collective action must sufficiently plead violations of the FLSA. Simply because
Plaintiffs’ emphasis on FLSA collective actions’ representative nature ignores the fact
that this case is not yet a collective action. Plaintiffs have not taken any steps to have their
proposed class certified. Rather, they have merely filed a complaint.
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FLSA collective actions have the potential to include thousands of members does not
relieve each named plaintiff of its individual burden to state a legal claim for relief. Since
named plaintiffs represent the proposed opt-in plaintiffs’ interests, it necessarily follows
that each named plaintiff must establish that it has suffered a FLSA violation. 8 Davis, 765
F.3d at 242–43. Here, only three of the seventy-six named plaintiffs have satisfied the
Davis pleading standard under the FLSA.
Accordingly, I will grant First Student’s motion to dismiss the FLSA claims of the
seventy-three named plaintiffs who failed to allege that they worked a forty-hour work
week in which they were not compensated for their overtime. 9
Rather than commencing an action with nearly 100 named plaintiffs, the plaintiffs could
have listed only the three named plaintiffs who plead FLSA violations as the named plaintiffs in
the complaint. (Doc. No. 17 ¶¶ 202–38). The other plaintiffs who are named in the amended
complaint could have joined the action later in the litigation through the opt-in certification
process. This would have relieved these seventy-three plaintiffs from the pleading requirements
of Davis and Rule 8. However, the plaintiffs did not choose this route. Instead, they chose to list
nearly 100 named plaintiffs in their complaint and amended complaint. By doing this, the
plaintiffs necessarily took on the burden of pleading FLSA violations on behalf of each of these
named plaintiffs. Fed. R. Civ. P. 8(a); Davis, 765 F.3d at 243.
I will not grant leave for the plaintiffs to amend their complaint to again modify their
FLSA overtime claims. They have had two previous opportunities to do so. Indeed, in my
previous Opinion regarding First Student’s initial motion to dismiss, I clearly identified the
factual and legal deficiencies in plaintiffs’ pleading of the FLSA overtime claim. Rosario, 2016
WL 4367019, at *6. This Opinion discussed the Davis pleading standard at length, going so far
as to specifically notify the plaintiffs of their duty to allege a forty hour workweek in which the
plaintiffs were also not compensated for their overtime. Id. Despite this clear guidance, nearly all
of the named plaintiffs failed to plead such facts in their amended complaint.
Under Federal Rule of Civil Procedure 15(a), district courts should grant leave to amend
when justice so requires. Nevertheless, district courts possess “discretion to deny a plaintiff leave
to amend where the plaintiff was put on notice as to the deficiencies in his complaint, but chose
not to resolve them.” Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.
2002) (affirming district court’s denial of leave to amend when plaintiff was on notice of the
complaint’s deficiencies and failed to rectify them in his amended complaint).
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Preemption of the Plaintiffs’ WPCL Claims
Plaintiffs also bring claims under Pennsylvania’s Wage Payment and Collection
Law, 43 Pa. Cons. Stat. § 260.1 et seq. (WPCL). They claim First Student is liable for
failing to pay them wages as required by their express employment agreements. First
Student argues the WPCL claims must be dismissed because they are preempted by the
Labor Management Relations Act, 29 U.S.C. § 185 (LMRA).
The WPCL provides a civil remedy for employees to “recover unpaid wages”
from their employers. 43 P.S. § 260.9a(b).
The WPCL does not create a general right to compensation. DeAsencio v. Tyson
Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003) (citing Antol v. Esposto, 100 F.3d 1111,
1117 (3d Cir. 1996)). The WPCL simply “provides a statutory remedy when the
employer breaches a contractual obligation to pay earned wages.” Id. (quoting Antol, 100
F.3d at 1117). “The contract between the parties governs in determining whether specific
wages are earned.” Id. (quoting Antol, 100 F.3d at 1117). Thus, in order to survive a
motion to dismiss under Rule 12(b)(6), a plaintiff bringing a WPCL claim must allege a
contractual right—either written or oral—to claimed wages. Rosario, 2016 WL 4367019,
I previously dismissed plaintiffs’ WPCL claims because the plaintiffs did not
allege, in their original complaint, any contractual agreement between themselves and
defendants. Id. at *8. In plaintiffs’ amended complaint, they allege an express contractual
agreement between themselves and the defendants. (Doc. No. 17 ¶¶ 83, 152–55, 248–49,
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251). While the plaintiffs allege an express agreement—and even quote directly from the
agreement—they do not identify the agreement in any way. However, First Student
points to a collective bargaining agreement (“CBA”) between the plaintiffs and
defendants as the agreement upon which plaintiffs base their WPCL claims. 10
The language of the quoted agreement in the plaintiffs’ amended complaint is
identical to the provisions of the CBA entered into between plaintiffs and defendants. 11 In
plaintiffs’ response to First Student’s motion to dismiss, plaintiffs do not dispute that the
CBA is the sole agreement they rely on in support of their WPCL claims. Nor do they
dispute the applicability of the CBA or its authenticity. See Hughes v. United Parcel
Serv., Inc., Civ. A. No. 14–3822, 2015 WL 1021312, at *3 (E.D. Pa. Mar. 6, 2015)
(rejecting plaintiffs’ argument that defendants could not attach a copy of the CBA the
plaintiffs relied upon in their complaint because it would be improper to “deny
Defendants the right to rely upon the very CBA that forms the basis of [the plaintiffs’]
relationship with their employer, and that forms the basis of each of their claims”). It is
I may consider the CBA produced by defendants. See Rogan v. Giant Eagle, Inc., 113
F. Supp. 2d 777, 780–81 (W.D. Pa. 2000) (“[A] plaintiff’s failure to attach or cite documents
explicitly relied on or integral to the complaint does not preclude the court, when considering a
motion to dismiss, from reviewing the text of these extrinsic documents.”), aff’d, 276 F.3d 579
(3d Cir. 2001); see also In re Asbestos Prods. Liability Litig. (No. VI), 822 F.3d 125, 133 n.7 (3d
Cir. 2016) (“In deciding motions under Rule 12(b)(6), courts may consider ‘document[s]
integral to or explicitly relied upon in the complaint,’ . . . or any ‘undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims
are based on the document’”) (internal citations omitted) (alteration in original)).
Compare Pls.’ Am. Compl., Doc. No. 17 ¶¶ 83, 153–54, 248–49, 251, with Nat’l
Master First Student Agreement, Ex. 1, Doc. No. 18-3, at p. 8, art. 39, Agreement Between
Teamster Local Union 773 & First Student, Inc. Pleasant Valley Sch. Dist., Ex. 2, Doc. No. 18-3,
at pp. 13–15, art. 8 & p. 18, art. 11, and Agreement Between Teamster Local Union 773 &
Allentown First Student, Ex. 3, Doc. No. 18-3, at p. 10, art. 11.
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clear that the agreement plaintiffs rely on in their amended complaint is an authentic
CBA entered into between themselves and the defendants.
In support of its motion to dismiss, First Student argues that the plaintiffs’ WPCL
claims are preempted by § 301 of the LMRA. I agree.
It is well-established that, in the context of labor law, federal law preempts state
law claims that are based upon the terms of a CBA. Allis-Chalmers Corp. v. Lueck, 471
U.S. 202, 205–08 (1985); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers
of Am. v. Lucas Flour Co., 369 U.S. 95, 104 (1962). More specifically, when resolution
of a state-law claim is substantially dependent upon the terms of a CBA, then the claim is
either treated as a § 301 claim under the LMRA or dismissed as preempted. AllisChalmers, 471 U.S. at 220.
The Third Circuit has followed the dictates of Lucas Flour and Allis-Chalmers in
analyzing WPCL claims. When a WPCL claim is based squarely upon the terms of a
CBA, it is preempted by § 301 of the LMRA. E.g., Wheeler v. Graco Trucking Corp.,
985 F.2d 108, 113 (3d Cir. 1993); Hughes, 2015 WL 1021312, at *4; Lynn v. Jefferson
Health Sys., Civ. No. 09–6086, 2010 WL 3656634, at *4 (E.D. Pa. Sept. 15, 2010). As
explained above, a WPCL claim necessarily requires the existence of a contract. It only
follows that when the contract relied upon to support a WPCL claim is a CBA, that claim
is preempted by § 301 of the LMRA. E.g., Lynn, 2010 WL 3656634, at *4.
In this case, plaintiffs’ WPCL claims are substantially dependent upon
interpretation of the CBA because the WPCL claims are based upon the express terms of
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the CBA. Therefore, plaintiffs’ WPCL claims are preempted by § 301 of the LMRA.
Wheeler, 985 F.2d at 113; Hughes, 2015 WL 1021312, at *4; Lynn, 2010 WL 3656634,
at *4. Just like the plaintiffs in Hughes, the plaintiffs here cannot save their WPCL claims
from preemption by arguing that they did not attach copies of the CBA to their amended
complaint. 2015 WL 1021312, at *3. The plaintiffs here, as in Hughes, “cannot deny
Defendants the right to rely upon the very CBA that forms the basis of their relationship
with their employer, and that forms the basis of each of their claims.” Id. 12 Also as in
Hughes, here, First Student’s “attachment of the CBA to their Motions to Dismiss, and
their reliance upon the CBA, is perfectly proper.” Id.
In responding to First Student’s motion to dismiss—which attached the CBA—the
plaintiffs do not dispute that the CBA is the sole contract that their amended complaint
references and relies upon. It appears that the plaintiffs attempt to side-step pleading the
existence of the CBA perhaps because they are aware of the LMRA’s preemptive effect
on a WPCL claim that relies upon a CBA. However, this approach has been foreclosed
numerous times. See Hughes, 2015 WL 1021312, at *4 (rejecting plaintiffs’ attempts to
avoid the import of a CBA when defendants attached it to their motion to dismiss and the
The plaintiffs argue that finding their WPCL claims preempted would be “premature”
at this stage of the litigation because discovery has not commenced. This argument is unavailing.
Plaintiffs are aware that, to state a claim under the WPCL, they must allege the existence of a
contract, either written or oral. In their amended complaint, the plaintiffs quote various
provisions of the CBA, though they do not identify the quoted material as coming from the CBA.
Notably, however, the plaintiffs do not dispute they are relying on the CBA as the contract that
supports their WPCL claims. It is disingenuous for the plaintiffs to quote from provisions of the
CBA in order to state a WPCL claim, but then argue that I may not consider the CBA because
discovery has not commenced. Put differently, plaintiffs cannot have their cake and eat it too. If
they wish to state a claim under the WPCL, they must allege a contract. If that contract just so
happens to be a CBA, the plaintiffs run the risk of the WPCL claim being preempted by § 301 of
Case 5:15-cv-06478-LS Document 23 Filed 03/23/17 Page 17 of 18
complaint relied on the terms of the CBA); Lynn, 2010 WL 3656634, at *4 (relying on
CBA, which defendants attached to their motion, in finding WPCL claim preempted by §
301 of the LMRA). It is clear that the contract supporting plaintiffs’ WPCL claims is a
CBA. As the plaintiffs’ WPCL claim “is based squarely on the terms of the collective
bargaining agreement,” Wheeler, 985 F.2d at 113, it follows that the WPCL is preempted
by the LMRA, id.
Plaintiffs argue in their response that First Student has not pointed to any
agreement between First Student and the plaintiffs. (Doc. No. 21 at 14). Plaintiffs also
argue First Student has not produced any agreements. (Id.). Plaintiffs are incorrect. First
Student has produced multiple CBAs that were binding on plaintiffs and defendants.
(Doc. No. 18-3).
For all the above reasons, I find that § 301 of the LMRA preempts the plaintiffs’
claims under the WPCL. Accordingly, I will grant the motion to dismiss plaintiffs’
WPCL claims. 13
When courts find a WPCL claim preempted by the LMRA, they may treat the claim as
a LMRA claim, but only if the plaintiffs have exhausted their administrative remedies pursuant
to the CBA at issue. Allis-Chalmers, 471 U.S. at 220. Here, both the plaintiffs’ original
complaint and amended complaint fail to allege a single fact suggesting that they pursued the
grievance procedures afforded them under their CBA. Therefore, I will dismiss the plaintiffs’
WPCL claims rather than treat them as claims under the LMRA. Id.
I will not allow leave to amend the complaint regarding the WPCL claims. The situation
here is nearly identical to Hughes, 2015 WL 1021312. In Hughes, the plaintiffs did not attach the
CBA to their complaint in alleging a WPCL claim. 2015 WL 1021312, at *2–3. The court
nonetheless held that the WPCL claims were preempted by § 301 of the LMRA, based upon the
language in the complaint and the CBA, which was provided to the court as an attachment to the
defendants’ motion to dismiss. Id. at *2–5. In denying leave to amend, the court found that, like
here, the plaintiffs’ original complaint and amended complaint failed to allege exhaustion of
grievance procedures under the CBA. Id. at *6. Also like the plaintiffs’ response in Hughes, the
plaintiffs’ response to the motion to dismiss here was “completely silent as to this point.” Id. For
Case 5:15-cv-06478-LS Document 23 Filed 03/23/17 Page 18 of 18
For all the foregoing reasons, I will grant First Student’s motion to dismiss the
FLSA overtime claim (Count II) with respect to all named plaintiffs except for Nicole
Tucker, Brenda Vera, and Jessica Marinez. I will grant First Student’s motion to dismiss
the WPCL claims (Counts III and IV) as to all plaintiffs.
An appropriate Order follows.
these reasons, the court in Hughes found that amendment would be futile, especially since the
plaintiffs had been given multiple opportunities to advise the court that they exhausted their
administrative remedies under the CBA. 2015 WL 1021312, at *6. The same situation is present
here. Accordingly, amendment would be futile.
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