Cook et al v. E.I. Du Pont de Nemours and Company

Filing 50

MEMORANDUM: For the foregoing reasons, the court will grant DuPont's motion to transfer to the United States District Court for the Eastern District of Texas (Doc. No. 27 ). The defendant's Motion to Stay will be denied as moot, and the co urt declines to rule on the Motion for Conditional Certification, leaving that motion to the transferee court. An appropriate Order is filed herewith. Signed by District Judge Aleta A. Trauger on 8/3/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb) [Transferred from Tennessee Middle on 8/3/2017.]

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

KENNETH COOK, JAMES BOTTS,
SHAWN HUNTER, LARRY LACLAIR,
THOMAS SHORT, GEORGE WILLIS,
JAMES CAHOON, and CHRIS
PAULLEY, on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
E.I. DUPONT DE NEMOURS AND
COMPANY,
Defendant.

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Case No. 3:17-cv-00909
Judge Aleta A. Trauger

MEMORANDUM
Before the court is the Motion to Transfer Based on the First-Filed Rule and Incorporated
Memorandum of Law (Doc. No. 27), filed by defendant E.I. du Pont de Nemours and Company
(“DuPont”), seeking transfer of this action to the United States District Court for the Eastern
District of Texas. The plaintiffs have filed a Memorandum in Opposition to Defendant’s Motion
to Transfer (Doc. No. 35), and DuPont has filed a Reply (Doc. No. 41). In addition, DuPont has
filed a Notice of Supplemental Authority (Doc. No. 48), to which the plaintiffs have responded
(Doc. No. 49).
Also pending are Plaintiff’s Motion for Conditional Certification and Expedited CourtSupervised Notice to the Potential Plaintiffs (Doc. No. 8), and DuPont’s Motion to Stay
Proceedings Pending Ruling on Defendant’s Motion to Transfer (Doc. No. 28).
For the reasons set forth below, the court will grant the Motion to Transfer and deny as

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moot the Motion to Stay. The court declines to rule on the Motion for Conditional Certification,
leaving that motion to the transferee court.
I.

BACKGROUND
On September 2, 2016, Gene Chance filed a collective-action lawsuit under the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., against DuPont in the United States
District Court for the Eastern District of Texas, Case No. 1:16-cv-376 (the “Texas action”).
(Doc. No. 27-1.) In the Third Amended Complaint, the operative pleading, Chance brings claims
individually and on behalf of those similarly situated against DuPont. The collective action class
of similarly situated individuals is defined as including “all hourly and/or ‘Salaried Non-Exempt’
current and former employees who worked at Defendant’s [50 facilities nationwide] and who
were not paid the correct overtime wages.” (Doc. No. 27-2, Texas Action 3d Am. Compl. ¶ 4.)
Chance alleges that, until April 1, 2016, all non-exempt employees at each of DuPont’s Legacy
facilities were paid overtime wages that were improperly based on each employee’s “straight
time” rate wages rather than the actual remuneration the employees were paid, including Shift
Premium Allowances and other remuneration, in violation of the FLSA.
He also alleges that DuPont’s payroll system, “MyInfo,” changed in April 2016 and that
DuPont made retroactive payments of recalculated overtime wages to current employees but that
the amount paid did not fully compensate the named plaintiff or similarly situated employees, as
it was improperly calculated and did not include liquidated damages as mandated by the FLSA.
He seeks an order certifying the matter as a collective action and directing notice to putative
collective action class members; damages in the full amount of unpaid overtime wages plus
liquidated damages for a three-year limitations period, based on the defendant’s willful
violations of the FLSA; attorney fees, costs, pre- and post-judgment interest, and any other relief

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in law or equity to which the plaintiff and putative collective action members may be entitled.
The plaintiff’s Amended Motion to Certify a Collective Action Pursuant to Section 216(b) of the
FLSA and to Approve a Proposed Notification to All Putative Collective Class Action Members,
filed on May 8, 2017, remains pending in the Texas court.
On June 2, 2017, exactly nine months after the Texas Action was filed, plaintiffs Kenneth
Cook, James Botts, Shawn Hunter, Larry LaClair, Thomas Short, George Willis, James Cahoon,
and Chris Paulley (the “Cook plaintiffs”), on behalf of themselves and others similarly situated,
filed the present action in this court. The similarly situated collective action members identified
by the Complaint consist of all current and former hourly employees “who worked in Hourly
Paid Positions at one of defendant’s plants nationwide” (Compl. ¶ 1) and were unlawfully
deprived of overtime compensation under the FLSA (Compl. ¶ 2). The Complaint is
accompanied by opt-in notices from over 400 other current or former DuPont employees.
(Compl. Ex. A.)
Like the plaintiff in the Texas Action, the Cook plaintiffs allege that DuPont improperly
calculated their base wage rate for purposes of calculating overtime pay. They also allege that,
after April 1, 2016, DuPont changed its payroll system to calculate the base pay rate differently
and that it made some back payments of additional overtime pay for time worked prior to that
date but that the additional payments did not include liquidated damages or interest. Unlike
Chance, the Cook plaintiffs expressly allege a violation of the “prompt payment” requirements of
29 C.F.R. § 778.106 and assert that individuals who were no longer employed by DuPont as of
April 1, 2016 never received any additional payments for overtime pay worked prior to April 1,
2016. The Complaint articulates a single cause of action (“Count I”) for violation of 29 U.S.C. §
207(a) and 29 C.F.R. Part 778, based on the withholding of timely overtime pay. Like Chance,

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the Cook plaintiffs seek liquidated damages and a three-year limitations period based on the
defendant’s allegedly willful violation of the FLSA. (Compl. ¶¶ 40–48.)
On June 15, 2017, DuPont filed the present Motion to Transfer, arguing that transfer of
this action to the United States District Court for the Eastern District of Texas is warranted under
the so-called “first-to-file” rule, on the basis that the two collective action cases are essentially
identical. As indicated above, the motion has been fully briefed and is ripe for review.
II.

LEGAL STANDARD
The Sixth Circuit has recognized the “first-to-file rule” as a “well-established doctrine

that encourages comity among federal courts of equal rank.” Zide Sport Shop of Ohio, Inc. v. Ed
Tobergte Assocs., 16 F. App’x 433, 437 (6th Cir. 2001). The rule “also conserves judicial
resources by minimizing duplicative or piecemeal litigation, and protects the parties and the
courts from the possibility of conflicting results.” Baatz v. Columbia Gas Transmission, LLC,
814 F.3d 785, 789 (6th Cir. 2016). “The rule provides that when actions involving nearly
identical parties and issues have been filed in two different district courts, the court in which the
first suit was filed should generally proceed to judgment.” Id. (internal quotation marks and
citation omitted).
The first-to-file rule generally applies where (1) the two actions involve nearly identical
parties; (2) the two actions involve nearly identical issues; and (3) no equitable reasons or special
circumstances are present to defeat the first-to-file rule. Long v. CVS Caremark Corp., No.
5:09CV1392, 2010 WL 547143 at *2 (Ohio Feb. 11, 2010). When the first-to-file rule is properly
raised, a district court presiding over the second-filed case has many options for proceeding,
including dismissing the case without prejudice, staying the suit before it, allowing both suits to
proceed, or, in some cases, enjoining the parties from proceeding in the other suit. Baatz, 814

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F.3d at 793.
The rule is not strict, AmSouth Bank v. Dale, 386 F.3d 763, 791 n.8 (6th Cir. 2004), and it
is within the discretion of the district court to decline to enforce it, “where equity so demands,”
such as when the record contains evidence of forum shopping, bad faith, or inequitable conduct.
Zide Sport Shop, 16 F. App’x at 437. However, numerous courts have recognized that, “[i]n the
FLSA collective action context, the First-to-File rule is often applied and is particularly
appropriate.” Guyton v. Legacy Pressure Control, Inc., No. SA-15-CV-1075-XR, 2016 WL
5794801, at *2 (W.D. Tex. Oct. 4, 2016). See also Granado v. Quality Energy Servs., Inc., No.
SA-15-CV-1061-XR, 2016 WL 705228, at *2 (W.D. Tex. Feb. 18, 2016) (“[D]istrict courts
“have routinely applied the first-filed rule in the face of similar dual collective actions.’”
(quoting Tex. Instruments v. Micron Semiconductor, 815 F. Supp. 994, 997 (E.D. Tex. 1993),
and citing Tillery v. Higman Barge Lines, Inc., 2014 WL 1689942 (S.D. Tex. April 29, 2014);
White v. Peco Foods, Inc., 546 F. Supp. 2d 339 (S.D. Miss. 2008); Fuller v. Abercrombie &
Fitch Stores, Inc., 370 F. Supp. 2d 686 (E.D. Tenn. 2005)).
III.

DISCUSSION
The Cook plaintiffs argue that 28 U.S.C. § 1404(a) is the proper statute under which this

court should decide a motion for transfer of venue. A motion to transfer venue under § 1404(a),
however, is distinct from a motion to transfer under the first-to-file doctrine. “The former type of
motion asks a court to transfer a proceeding for the convenience of the parties, whereas the latter
is a doctrine rooted in judicial comity.” NCR Corp. v. First Fin. Computer Servs., Inc., 492 F.
Supp. 2d 864, 868 (S.D. Ohio 2007). A court ruling on a motion to transfer under the first-to-file
doctrine can consider convenience in its decision, but it should focus its analysis on comity and
economy between courts with cases that have substantially similar issues. Id. This court will

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analyze the motion under the first-to-file rule.
In applying that rule, “courts generally evaluate three factors: (1) the chronology of
events, (2) the similarity of the parties involved, and (3) the similarity of the issues or claims at
stake.” Baatz, 814 F.3d at 789 (citing Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 625
(9th Cir. 1991)). If these factors support application of the rule, the court must also evaluate
whether equitable considerations weigh against it. Id. at The court will address each of these
factors in turn.
A.

Chronology of Events

As set forth above, Gene Chance filed the Texas Action first, on September 2, 2016,
while the Cook plaintiffs did not file until nine months later, on June 2, 2017. The operative
Third Amended Complaint in the Texas Action was filed on May 8, 2017, still before the
Complaint in this action was filed. Even if it had not been, an action commences upon filing.
Fed. R. Civ. P. 3; Am. Modern Home Ins. v. Insured Accounts Co., 704 F. Supp. 128, 130 (S.D.
Ohio 1988).
The Sixth Circuit has held that, “[f]or purposes of first-to-file chronology, the date that an
original complaint is filed controls.” Zide Sport Shop, 16 F. App’x at 437. And “the ‘chronology
of events’ factor simply asks which of the two overlapping cases was filed first.” Baatz, 814 F.3d
at 790. Because the Texas Action was filed nine months before the present action, the
chronology of the two actions favors applying the first-to-file rule here.
B.

Similarity of the Parties

Second, the Court must consider the similarity of the parties involved. “The first-to-file
rule applies when the parties in the two actions ‘substantial[ly] overlap,’ even if they are not
perfectly identical.” Id. (citations omitted).

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There is no dispute that the sole defendant, DuPont, is identical in the two actions. The
parties disagree as to whether the plaintiffs are sufficiently similar. DuPont argues that the
plaintiffs in the two actions are substantially similar, even though the named plaintiffs in the two
actions are different, because the putative collective action class in both cases “includes current
and former non-exempt technicians and operators at DuPont’s 50 Legacy Facilities.” (Doc. No.
27, at 10.) Further, it asserts that this case seeks to certify a collective action whose members are
“identical to the FLSA collective that Chance has already moved to certify, defining the classes
as all similarly situated non-exempt technicians and operators who worked overtime in the entire
United States over the three years preceding the filing of the respective complaints who were
paid using the ‘MyInfo’ payroll system.” (Doc. No. 27, at 10.)
In response, the Cook plaintiffs argue that they are dissimilar from the single plaintiff,
Gene Chance, in the Texas Action, because Chance is not a plaintiff in this action and the
plaintiffs here are not plaintiffs in the Texas Action. This argument is without merit. The first-tofile rule in a class action suit requires the court to compare the proposed classes, not the named
plaintiffs. See Baatz, 814 F.3d at 790 (“[F]or purposes of identity of the parties when applying
the first-to-file rule, courts have looked at whether there is substantial overlap with the putative
class even though the class has not yet been certified.”). Accord Watson v. Jimmy John’s, LLC,
No. 2:15-CV-768, 2015 WL 4132553, at *3 (S.D. Ohio July 8, 2015); Siegfried v. Takeda
Pharm. N. Am., Inc., No. 10-cv-02713, 2011 WL 1430333, at *5 (N.D. Ohio Apr.14, 2011);
Long, 2010 WL 547143, at *3.
Second, the Cook plaintiffs argue that their proposed collective, unlike that in the Texas
action, includes former employees who never received any portion of the back payment owed by
DuPont after it changed payroll systems. This contention, too, is without merit. The Texas

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Action’s proposed collective expressly includes former as well as current employees, as set forth
above, and the plaintiff’s proposed notice in the Texas Action implicitly acknowledges that
former members who never have received any of the additional overtime pay to which they are
entitled are part of the collective. The proposed notice states, in pertinent part: “If you previously
received a payment from DuPont, you are still entitled to opt in to this lawsuit to receive any
additional amount of overtime wages and matching amounts of wages payable to you as
liquidated damages under the law.” (Texas Action, Doc. No. 32, at 26.) This language presumes
that former employees who never received any back payment of overtime wages are entitled to
opt in.
The plaintiffs also contend that DuPont’s own arguments in its opposition to Chance’s
motion to certify a collective action in the Texas Action demonstrate that the “lone plaintiff’s
claims stem from circumstances unique to that particular plaintiff and his plant” in Texas. (Doc.
No. 35, at 5 (citing Texas Action, Def.’s Opp. to Certification, Doc. No. 37, at 19–20).) The
Cook plaintiffs point out that DuPont argues there that Chance offered “‘no proof that he is
similarly situated to the putative collective members,’ at other DuPont facilities, which would
include the three facilities at which plaintiffs in this lawsuit work.” (Id. citing Texas Action,
Def.’s Opp. to Certification, Doc. No. 37, at 15).) However, the fact that the defendant contests
the certification of the collective action in both cases on the basis that the collective action
members are not similarly situated has no bearing on whether the identity of the plaintiffs in each
case substantially overlaps. Moreover, having one court rather than two consider the parallel
motions to certify will further interests of comity and judicial economy.
The Cook plaintiffs object that the contingency fee arrangement in each case is
substantially different. However, while this may be an equitable factor to consider, it does not

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affect the identity of the plaintiffs in each case Likewise, as the Baatz court recognized, the fact
that the Cook plaintiffs could choose not to opt in to the Texas action is not relevant:
This analysis is not affected by the [plaintiffs’] representation that they would opt
out of the class [in the first-filed case] if it is certified. That is certainly their right
if and when that day comes. See Fed. R. Civ. P. 23(c)(2). But allowing plaintiffs
to use this representation to prevent the first-to-file rule from being applied in the
first instance would undercut the purposes of the first-to-file rule: parties, not
courts, would determine when the rule could be applied, and could force resourcedraining duplicative class actions to proceed simultaneously. This would unduly
burden the courts, and could be used as a vexatious litigation tactic. While the
opt-out right may allow for (and perhaps anticipate) duplicative litigation, it
should not prospectively prohibit courts’ efforts to conserve resources by applying
the first-to-file rule.
Id. (internal citation omitted). While the cases here involve opt-in collectives under the FLSA
rather than true class actions governed by Rule 23, the same analysis applies.
In short, it is clear that the proposed collectives substantially overlap. The Cook
plaintiffs, in their Motion for Conditional Certification and Expedited Court-Supervised Notice
to the Potential Plaintiffs, identify the collective action members as including “all present and
former hourly employees who work or who have worked at any of [DuPont’s] facilities
nationwide and who were paid using the MyInfo payroll system at anytime since June 2, 2014,”
or three years prior to the filing of the Complaint (Doc. No. 8, at 1–2.) Chance, in his Amended
Motion to Certify, defines his proposed collective as including “[a]ll current and former hourly
or salaried non-exempt employees who worked for Defendant between September 2, 2013 and
the present [that is, from three years prior to the filing of the Complaint to the present] who
received a scheduled overtime allowance, including both day shift and night shift.” (Texas
Action, Doc. No. 32, at 26.) Although the pleadings do not use identical wording and the timing
is different by nine months, both actions identify substantially the same employees and,
importantly, seek to notify the same employees. Moreover, it is clear that the Cook plaintiffs are

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incorporated within the definition of the Texas Action’s proposed collective and that Chance
would be included in the Cook plaintiffs’ proposed collective. “This overlap satisfies the
similarity of parties factor.” Baatz, 814 F.3d at 791.
The court therefore finds, for purposes of the first-to-file analysis, that the parties are
nearly identical. This factor weighs in favor of transfer.
C.

Similarity of the Issues

With respect to this factor, “as with the similarity of the parties factor, the issues need
only to substantially overlap in order to apply the first-to-file rule.” Baatz, 814 F.3d at 791.
Although the issues do not have to be identical, they must “be materially on all fours and have
such an identity that a determination in one action leaves little or nothing to be determined in the
other.” Id. (internal quotation marks and citation omitted).
The gravamen of both actions is that DuPont violated the FLSA by failing to properly
calculate its hourly employees’ regular rate of pay and thus their overtime rate of pay. The Cook
plaintiffs argue that the issues in the two cases are not sufficiently similar, because they have
asserted a claim for the late payment of overtime in violation of the FLSA’s prompt-payment
requirements, 29 C.F.R. § 778.106, but Chance did not allege this violation in his Complaint.
The court finds that, although Chance does not expressly invoke 29 C.F.R. § 778.106, the factual
allegations in his Complaint support the same claim. Moreover, the Cook plaintiffs assert only
one cause of action in their complaint. Their “prompt-payment” claim, at most, is a subclaim that
falls under the umbrella of “improper overtime payments,” which is the focus of both actions.
Even assuming that the Cook plaintiffs’ invocation of 29 C.F.R. Part 778 raises a separate
and different claim, the court still finds substantial overlap in the issues. Because of this overlap,
a decision from this court “would not only tend to frustrate the legitimate aim of preserving

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judicial economy, as substantially the same evidence would be presented in both actions . . . , but
[would also pose] the possibility of inconsistent opinions.” Buffalo Wild Wings, Inc. v. BW
Rings, LLC, No. 2:10-cv-335, 2010 WL 4919759, at *3 (S.D. Ohio Nov. 29, 2010). In light of
the close identity of claims, the court finds that the concerns of judicial comity and resource
preservation further support application of the first-to-file rule.
D.

Equitable Considerations

Finally, the court must also consider whether equitable concerns weigh against applying
the first-to-file rule. Baatz, 814 F.3d at 792. Generally, the factors to be considered include
“extraordinary circumstances, inequitable conduct, bad faith, or forum shopping.” Id. (citation
omitted). “However, deviations from the rule should be the exception, rather than the norm.” Id.
It does not appear that any of these concerns are at issue here. “This is not the classic case
where one party has filed an anticipatory suit (usually a declaratory judgment action) in a
preferred forum.” Id. Plaintiff Chance is not alleged to have acted in bad faith or to have engaged
in inequitable conduct. In fact, rather than addressing the equitable concerns enumerated by the
Sixth Circuit in Baatz, the Cook plaintiffs insist that, as part of the court’s inquiry into the equity
of transfer, it should consider the same factors that apply to a motion to transfer venue under 28
U.S.C. § 1404(a). The cases upon which the plaintiffs rely, however, are largely distinguishable
and have no relevance here. See, e.g., Research Automation, Inc. v. Schrader-Bridgeport Int’l,
Inc., 626 F.3d 973, 975 (7th Cir. 2010) (holding, in the context of “mirror-image lawsuits [filed]
in two different district courts, each claiming the other had breached their contract for the
manufacture and sale of an industrial cleaning machine,” that the district court did not abuse its
discretion in declining to apply the first-to-file rule and instead considering the relevant factors
under § 1404(a)); AmSouth Bank, 386 F.3d at 791 n. 8 (“[T]he first-filed rule . . . much more

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often than not gives way in the context of a coercive action filed subsequent to a declaratory
judgment.”).
The court has already determined, above, that the interests of comity generally outweigh
the interests of convenience in a first-to-file case. Again, the first-to-file doctrine is “designed to
give courts discretion to decline to exercise jurisdiction in a case whose issues are already
substantially implicated in a previously filed action in a court of concurrent jurisdiction.” NCR
Corp. v. First Fin. Computer Servs., Inc., 492 F. Supp. 2d 864, 868 (S.D. Ohio 2007). The
plaintiff has not shown that any of the relevant factors weighs against transfer or that equitable
considerations should override the presumption that the first-to-file rule applies.
This court has a duty to avoid a ruling that would “entrench upon or inconsistently decide
overlapping issues being addressed by another federal court.” Buffalo Wild Wings, Inc. v. BW
Rings, LLC, No. 2:10-cv-335, 2010 WL 4919759, at *3 (S.D. Ohio Nov. 29, 2010). The court
finds that judicial consistency, economy, and comity support the transfer.
IV.

CONCLUSION
For the foregoing reasons, the court will grant DuPont’s motion to transfer to the United

States District Court for the Eastern District of Texas (Doc. No. 27). The defendant’s Motion to
Stay will be denied as moot, and the court declines to rule on the Motion for Conditional
Certification, leaving that motion to the transferee court.
An appropriate Order is filed herewith.
ENTER this 3rd day of August 2017.

ALETA A. TRAUGER
United States District Judge