Waters v. Day & Zimmermann NPS, Inc. ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1997
JOHN WATERS,
individually and for others similarly situated,
Plaintiff, Appellee,
v.
DAY & ZIMMERMANN NPS, INC.
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Thompson, Dyk,* and Barron,
Circuit Judges.
David B. Salmons, with whom Michael J. Puma, James D. Nelson,
and Morgan, Lewis & Bockius LLP were on brief, for appellant.
Richard J. (Rex) Burch, with whom Michael A. Josephson,
Richard M. Schreiber, Taylor A. Jones, Bruckner Burch PLLC, and
Josephson Dunlap LLP were on brief, for appellee.
Daryl Joseffer, Jonathan D. Urick, Nicole A. Saharsky, Andrew
J. Pincus, Archis A. Parasharami, Minh Nguyen-Dang, and Mayer Brown
LLP on brief for Chamber of Commerce of the United States of
America, amicus curiae.
* Of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
January 13, 2022
DYK, Circuit Judge. John Waters filed suit for overtime
wages pursuant to § 216(b) of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201–219, in the United States District Court
for the District of Massachusetts. The defendant was Day &
Zimmermann ("D&Z"), a company incorporated in Delaware that
maintains its principal place of business in Pennsylvania.
Waters's suit alleged that D&Z failed to pay him and
other similarly situated employees and former employees their
FLSA-required overtime wages. In accord with the FLSA's procedures
governing what are often referred to as "collective actions," more
than 100 current and former D&Z employees from around the country
filed "opt-in" consent forms with the district court electing to
participate as plaintiffs in Waters' suit.
D&Z moved to dismiss for lack of personal jurisdiction.
This motion was based on Bristol-Myers Squibb v. Superior Court of
California ("BMS"), 137 S. Ct. 1773, 1779, 1781 (2017), holding
that in view of the Fourteenth Amendment, state courts cannot
entertain a state-law mass action—an aggregation of individual
actions—if it includes out-of-state plaintiffs with no connection
to the forum state. Here, the claims subject to the motion to
dismiss were the claims of the current and former D&Z employees
who had opted in to the collective action but, who, unlike Waters,
had worked for the company outside of Massachusetts.
Notwithstanding that D&Z had been properly served with process, it
- 3 -
claimed that under BMS, these claims could not be brought in a
Massachusetts federal court, even though a federal court's
jurisdiction is determined by the Fifth Amendment Due Process
Clause. This is so, D&Z argued, because Federal Rule of Civil
Procedure ("FRCP" or "Rule") 4(k)(1) independently limits a
federal court's exercise of personal jurisdiction with respect to
out-of-state opt-in claimants added after service of process has
been effectuated. The district court denied D&Z's motion,
declining to extend BMS's personal jurisdiction requirements to
FLSA cases in federal court. Waters v. Day & Zimmermann NPS, Inc.,
464 F. Supp. 3d 455, 461 (D. Mass. 2020).
On this interlocutory appeal, we now affirm the district
court's denial of D&Z's motion.1
I.
The following facts are not in dispute. Waters formerly
worked for D&Z in Plymouth, Massachusetts. He served as a
mechanical supervisor for the company, which provides services to
power plants.
On July 22, 2019, Waters filed an FLSA-based "collective
action" complaint against D&Z. That complaint alleged that D&Z
violated the FLSA's overtime-wage provisions, see § 207(a)(1),
because it "paid Waters and other workers like him the same hourly
We acknowledge with appreciation the assistance of the
1
amicus curiae in this case.
- 4 -
rate for all hours worked, including those in excess of 40 in a
workweek." Waters sought unpaid overtime wages as liquidated
damages, and attorneys' fees on behalf of himself and "the Putative
Class Members."
About two weeks later, on August 8, 2019, Waters served
the complaint on D&Z pursuant to 4(c) of the FRCP, utilizing the
provisions of Massachusetts' long-arm statute. Mass. Gen. Laws
ch. 223A, § 3. The following month, others claiming to be current
or former D&Z employees filed written "opt-in" consent forms
pursuant to § 216(b) in the district court to participate in the
collective action that Waters had filed.
The standard opt-in consent form contained the following
language:
1. I hereby consent to participate in a
collective action lawsuit against Day &
Zimmermann to pursue my claims of unpaid
overtime during the time that I worked with
the company.
2. I understand that this lawsuit is brought
under the Fair Labor Standards Act, and
consent to be bound by the Court's decision.
3. I designate the law firm and attorneys at
JOSEPHSON DUNLAP and BRUCKNER BURCH as my
attorneys to prosecute my wage claims.
4. I authorize the law firm and attorneys at
JOSEPHSON DUNLAP and BRUCKNER BURCH to use
this consent to file my claim in a separate
lawsuit, class/collective action, or
arbitration against the company.
- 5 -
To date, over 100 opt-ins claiming to be current and former D&Z
employees have filed consent forms electing to participate in the
FLSA collective action that Waters filed.
On September 12, 2019, D&Z moved pursuant to FRCP
12(b)(2) to dismiss the claims of those opt-ins who had not been
employed by D&Z in Massachusetts. D&Z explained that, in so
moving, it did not seek to "challenge personal jurisdiction as to
the named Plaintiff's [i.e., Waters's] individual claim, as he
allege[d] that he previously worked for [D&Z] in Massachusetts."
Nor did D&Z contend that it had not properly been served with
process or that anyone other than the named plaintiff was required
to serve D&Z with process. Instead, D&Z's motion and accompanying
memorandum of law claimed that BMS required the dismissal of the
opt-in claims because the district court lacked either general or
specific personal jurisdiction as to those claims.
In BMS, the Supreme Court held that the Fourteenth
Amendment's Due Process Clause prevented a California state court
from exercising specific personal jurisdiction over nonresident
plaintiffs' state-law claims when those claims had no connection
to the forum state. 137 S. Ct. at 1781. The decision expressly
reserved the separate question "whether the Fifth Amendment
imposes the same restrictions on the exercise of personal
jurisdiction by a federal court." Id. at 1784.
- 6 -
On June 2, 2020, the district court here denied D&Z's
motion to dismiss the opt-in claims based on BMS. It determined
that the Supreme Court's ruling in that case had no bearing on its
exercise of personal jurisdiction over the opt-ins because
Waters's suit was brought in federal court pursuant to the FLSA's
provisions governing collective actions, and the opt-ins had
joined his suit in accord with that statute's procedures for doing
so. Waters, 464 F. Supp. 3d at 461. In reaching this decision,
the district court noted that BMS was "specifically limited to
'the due process limits on the exercise of specific jurisdiction
by a State'" and did not resolve "whether the Fifth Amendment
imposes the same restrictions" on a federal court. Id. (quoting
BMS, 137 S. Ct. at 1783–84).
Following the denial, D&Z moved in the district court
for a certificate of appealability under 28 U.S.C. § 1292(b),
which the district court granted, see Waters v. Day & Zimmermann
NPS, Inc., No. 19-cv-11585-NMG, 2020 WL 4754984, at *1 (D. Mass.
Aug. 14, 2020). This court granted D&Z's timely petition for
permission to bring an interlocutory appeal on October 14, 2020.2
We have appellate jurisdiction under 28 U.S.C. § 1292(b).
2The district court has stayed the proceedings below pending
our resolution of D&Z's interlocutory appeal.
- 7 -
II.
Before addressing the merits of D&Z's appeal, we first
consider an issue that neither party raises, but that could affect
our appellate jurisdiction: whether the opt-in plaintiffs were
parties to the action in the district court. If the dismissed
opt-in plaintiffs were not parties to the action, we may lack
jurisdiction to consider the propriety of their dismissal. See
Campbell v. City of Los Angeles, 903 F.3d 1090, 1105 (9th Cir.
2018) ("All 'those that properly become parties[] may appeal an
adverse judgment.'" (quoting Marino v. Ortiz, 484 U.S. 301, 304
(1988))). The opt-ins' party status hinges on the question whether
they become parties as a result of filing opt-in notices, or they
could become parties only after the district court conditionally
certified that they were "similarly situated."
The FLSA provides that employees serving as named
plaintiffs can bring collective actions on "behalf of . . .
themselves and other employees similarly situated." § 216(b).
The FLSA does not provide for conditional certification, but in
the "absence of statutory or case law guidance," district courts
at or around the pleading stage have developed a "loose consensus"
regarding conditional certification procedures. Campbell, 903
F.3d at 1108–09. This process entails a "lenient" review of the
pleadings, declarations, or other limited evidence, id. at 1109
(citation omitted), to assess whether the "proposed members of a
- 8 -
collective are similar enough to receive notice of the pending
action," Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 436
(5th Cir. 2021).
Conditional certification has no bearing on whether the
opt-in plaintiffs become parties to the action. The FLSA provides
that "[n]o 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." § 216(b). This provision makes clear that in collective
actions, opt-in plaintiffs become parties to the proceedings when
they give "consent in writing to become such a party and such
consent is filed in the court."3 Id.
Conditional certification cannot be the cornerstone of
party status because it is not a statutory requirement; rather,
certification "is a product of interstitial judicial lawmaking or
3The relevant portion of subsection (b) reads as
follows, in part:
An action to recover the liability prescribed
in the preceding sentences may be maintained
against any employer (including a public
agency) in any Federal or State court of
competent jurisdiction by 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.
- 9 -
ad hoc district court discretion . . . nothing in section 216(b)
expressly compels it." Campbell, 903 F.3d at 1100; see also Myers
v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010) ("Thus
'certification' is neither necessary nor sufficient for the
existence of a representative action under [the] FLSA, but may be
a useful 'case management' tool for district courts to employ in
'appropriate cases.'" (quoting Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 169, 174 (1989))).
Both the Supreme Court and nearly all of our sister
circuits that have considered the question agree that opt-in
plaintiffs become parties to the action without regard to
conditional certification. Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 75 (2013), concerned the justiciability of an FLSA
collective action when the named plaintiff's claims became moot
and no opt-in plaintiffs had joined in the action prior to that
occurring. See Symczyk v. Genesis Healthcare Corp., 656 F.3d 189,
197 (3d Cir. 2011) (noting that "no other potential plaintiff ha[d]
opted in to the suit"). The Supreme Court rejected the idea that
the action was not moot because it could be remanded to
conditionally certify the collective, since "'conditional
certification' 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
- 10 -
parties to a collective action only by filing written consent with
the court." Genesis Healthcare, 569 U.S. at 75 (first citing
Hoffmann-La Roche, 493 U.S. at 171-72; then citing § 216(b)).
Almost all circuits to address this issue interpret the
statute as making opt-in plaintiffs parties to the action as soon
as they file consent forms. See, e.g., Campbell, 903 F.3d at 1104
("The FLSA leaves no doubt that 'every plaintiff who opts in to a
collective action has party status.'" (quoting Halle v. W. Penn
Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016)));
Mickles v. Country Club Inc., 887 F.3d 1270, 1278 (11th Cir. 2018)
("The plain language of § 216(b) supports that those who opt in
become party plaintiffs upon the filing of a consent and that
nothing further, including conditional certification, is
required."); Simmons v. United Mortg. and Loan Inv., LLC, 634 F.3d
754, 758 (4th Cir. 2011) ("[I]n a collective action under the FLSA,
a named plaintiff represents only himself until a similarly-
situated employee opts in as a 'party plaintiff' by giving 'his
consent in writing to become such a party and such consent is filed
in the court in which such action is brought.'" (quoting § 216(b));
Anson v. Univ. of Tex. Health Sci. Ctr. at Hous., 962 F.2d 539,
540 (5th Cir. 1992) ("Under Section 216(b), an employee may become
an 'opt-in' party plaintiff to an already filed suit by filing
written consent with the court where the suit is pending."). D&Z
also agrees that once an opt-in plaintiff "file[s] their consent
- 11 -
with the court, [they] have full party status." Appellant's Br.
26 (emphasis in original); see also id. at 2.
The sole possible exception to the general recognition
that opt-in plaintiffs become parties to the action upon filing
consent forms is the Seventh Circuit's decision in Hollins v.
Regency Corp., 867 F.3d 830, 833 (7th Cir. 2017), which held that
appellate review of a named plaintiff's adverse summary judgment
decision was not precluded by the presence of other parties when
"the collective action has never been conditionally certified and
the court has not in any other way accepted efforts by the unnamed
members to opt in or intervene." The decision attributed
significance to the district court's failure to conditionally
certify the collective action, or to "accept[] efforts by the
unnamed members to opt in or intervene." Id. at 833–34. There is
no indication that the Hollins court would find lack of party
status in a case like this, in which the opt-in forms were accepted
as filed by the district court.
Although Canaday v. Anthem Cos., 9 F.4th 392 (6th Cir.
2021), and Vallone v. CJS Solutions Group, 9 F.4th 861 (8th Cir.
2021), reached a different ultimate result on the question of
personal jurisdiction, both support our view that the dismissed
opt-in plaintiffs were parties to the action. In Canaday and
Vallone, the Sixth and Eighth Circuits faced the same BMS-based
personal jurisdiction challenge that D&Z raises now. In those
- 12 -
cases, opt-in plaintiffs had joined the action by filing consent
forms. Both district courts resolved the defendants' personal
jurisdiction challenges and dismissed the out-of-state opt-in
claims before reaching the merits of the in-state plaintiffs'
requests for conditional certification, signifying that it was not
necessary to decide the certification issue first. See Canaday v.
Anthem Cos., 439 F. Supp. 3d 1042, 1049 (W.D. Tenn. 2020); Vallone
v. CJS Sols. Grp., 437 F. Supp. 3d 687, 691 (D. Minn. 2020). The
Sixth Circuit explicitly agreed that the nonresident opt-in
plaintiffs became parties regardless of conditional certification,
stating that "[o]nce they file a written consent, opt-in plaintiffs
enjoy party status as if they had initiated the action," Canaday,
9 F.4th at 394, and "once they opt in, these plaintiffs become
'party plaintiff[s]' . . . enjoying 'the same status in relation
to the claims of the lawsuit as do the named plaintiffs,'" id. at
402–03 (first quoting § 216(b); then quoting Prickett v. DeKalb
County, 349 F.3d 1294, 1297 (11th Cir. 2003)).4
We note that collective actions are distinct from FRCP
23 class actions in that the latter's putative class members do
not become parties until after certification, see Smith v. Bayer
Corp., 564 U.S. 299, 315 (2011), and putative class members who
have not intervened in an action cannot appeal denials of class
4 The Eighth Circuit did not appear to address this question
but did not disagree with the district court's approach.
- 13 -
certification, Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326,
330, 332 n.5 (1980) (citing United Airlines, Inc. v. McDonald, 432
U.S. 385 (1977)); see also Molock v. Whole Foods Mkt. Grp., Inc.,
952 F.3d 293, 298 (D.C. Cir. 2020) ("Putative class members become
parties to an action—and thus subject to dismissal—only after class
certification."). These Rule 23 class action cases have no bearing
on whether the opt-in plaintiffs here became parties to the action.
In short, the FLSA's text, Supreme Court precedent, and
a majority of circuit court decisions compel only one conclusion:
the opt-ins who filed consent forms with the court became parties
to the suit upon filing those forms. Nothing else is required to
make them parties. Because more than 100 current and former D&Z
employees filed consent waivers in the district court, there are
that many opt-in party-plaintiffs before this court. We proceed
to decide whether the district court properly denied D&Z's motion
to dismiss the nonresident opt-in claims for lack of personal
jurisdiction.
III.
D&Z argues that BMS requires our dismissal of the
nonresident opt-in claims because the Massachusetts district court
lacked either general or specific personal jurisdiction as to those
claims. A detailed description of BMS provides helpful context.
In BMS, a group of nearly 700 plaintiffs filed eight separate
complaints in California state court alleging state-law products
- 14 -
liability, negligent misrepresentation, and misleading advertising
claims. 137 S. Ct. at 1778. The plaintiffs' purported injuries
all stemmed from Plavix, a drug manufactured and sold by BMS. Id.
Pursuant to a California procedural rule that permitted post-hoc
consolidation of the eight separate complaints, the plaintiffs
combined their suits into one mass-tort action.5 See Bristol-
Myers Squibb Co. v. Superior Court of California, 175 Cal. Rptr.
3d 412, 416 (Ct. App. 2014). The combined suit consisted of a
majority of non-resident plaintiffs, none of whom obtained Plavix
in California, used the drug there, or received treatment for their
injuries there. Id. BMS did, however, sell 187 million Plavix
pills in California, and it earned more than $900 million from
those sales. Id.Citing these "extensive contacts with California" and
the similarity of the resident and nonresident claims, the
California Supreme Court held that the state could properly
exercise specific jurisdiction over the mass-action. Id. at 1779.
Rejecting this conclusion, the U.S. Supreme Court held that the
Fourteenth Amendment's Due Process Clause prohibits state courts
from exercising specific personal jurisdiction over state-law
claims asserted by nonresident plaintiffs absent a "connection
5In California, "coordination" allows complex civil actions
that are "pending in different courts," but that share "a common
question of fact or law" to be consolidated in one proceeding.
Cal. Civ. Proc. § 404.
- 15 -
between the [state] forum and the specific claims at issue." Id.
at 1781, 1783. Similarities between the nonresident claims and
the claims of residents or those who were injured in California
were insufficient to establish that connection. Id. at 1781.
The decision emphasized that the "burden on [a]
defendant"—the "primary concern" animating jurisdictional
restrictions—encompasses more than just the "practical problems
resulting from litigating in the forum." Id. at 1780. These
restrictions also protect defendants from "submitting to the
coercive power of a State that may have little legitimate interest
in the claims in question," a "federalism interest" that is "at
times . . . decisive." Id. The Supreme Court explained:
[E]ven if the defendant would suffer minimal
or no inconvenience from being forced to
litigate before the tribunals of another
State; even if the forum State has a strong
interest in applying its law to the
controversy; even if the forum State is the
most convenient location for litigation, the
Due Process Clause, acting as an instrument of
interstate federalism, may sometimes act to
divest the State of its power to render a valid
judgment.
Id. at 1780-81 (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 294 (1980)).
The Court's reasoning in BMS rests on Fourteenth
Amendment constitutional limits on state courts exercising
jurisdiction over state-law claims. Here, it is agreed that the
Fourteenth Amendment does not directly limit a federal court's
- 16 -
jurisdiction over purely federal-law claims. Rather, as a
constitutional matter, the "constitutional limits" of a federal
court's jurisdiction over federal-law claims "are drawn in the
first instance with reference to the [D]ue [P]rocess [C]lause of
the [F]ifth [A]mendment," a point which D&Z concedes, as it must.
See Lorelei Corp. v. County of Guadalupe, 940 F.2d 717, 719 (1st
Cir. 1991). The Fifth Amendment does not bar an out-of-state
plaintiff from suing to enforce their rights under a federal
statute in federal court if the defendant maintained the "requisite
'minimum contacts' with the United States."6 See United Elec.,
Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d
1080, 1085 (1st Cir. 1992). There is no contention here that the
opt-in plaintiffs lack such contacts with the United States; that
the Fifth or Fourteenth Amendments themselves bar suit by the non-
resident opt-in plaintiffs; or that BMS directly governs a suit in
federal court under a federal statute, such as this one. Nor is
there any contention that D&Z was not properly served with process
pursuant to FRCP 4(c) and the Massachusetts long-arm statute.
Nonetheless, D&Z claims that the Fifth Amendment is
"wholly irrelevant" to the personal jurisdiction question before
6 "Because the United States is a distinct sovereign, a
defendant may in principle be subject to the jurisdiction of the
courts of the United States but not of any particular State." J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011)
(plurality opinion).
- 17 -
us—notwithstanding that this is a federal question case being heard
in federal court—because Rule 4(k) "incorporates the Fourteenth
Amendment's limits on the jurisdiction of federal courts wherever
a federal statute does not provide for nationwide service of
process." In other words, they propose that Rule 4 is not
concerned merely with service of process, but with personal
jurisdiction generally. Thus, D&Z argues, because there is no
dispute that the FLSA does not authorize nationwide service of
process, Rule 4(k) independently makes the holding of BMS
applicable to the FLSA opt-ins.
This argument depends on the contention that Rule
4(k)(1) governs not just service of a summons, but also limits a
federal court's jurisdiction after the summons is properly served.
We must decide whether D&Z is right that Rule 4(k)(1) operates as
a free-standing limitation on the exercise of personal
jurisdiction in collective actions such as those enabled by the
FLSA. We do not find D&Z's contention persuasive, as we now
discuss.
IV.
The question before us is one of rule interpretation.
As such, our review is de novo. See Sam M. ex rel. Elliott v.
Carcieri, 608 F.3d 77, 86 (1st Cir. 2010) (citing NEPSK, Inc. v.
Town of Houlton, 283 F.3d 1, 5 (1st Cir. 2002)).
- 18 -
A.
We start with the relevant text. The text reveals that
Rule 4 is limited to setting forth various requirements for
effectively serving a summons on a defendant in federal court,
thereby establishing personal jurisdiction over the defendant.
BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1556 (2017) ("[A] basis
for service of a summons on the defendant is prerequisite to the
exercise of personal jurisdiction." (citing Omni Cap. Int'l, Ltd.
v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)); see also Walden
v. Fiore, 571 U.S. 277, 283 (2014) ("[A] federal district court's
authority to assert personal jurisdiction in most cases is linked
to service of process on a defendant."); Canaday, 9 F.4th at 395
("Over time, service of process became a prerequisite for obtaining
authority over a defendant, making it appropriate to say that
'service of process conferred jurisdiction.'" (quoting Burnham v.
Superior Ct. of Cal., 495 U.S. 604, 613 (1990))).
Indeed, Rule 4's title, "Summons," suggests that it is
concerned only with service. The notes accompanying the
committee's 1993 amendment to Rule 4 reveal that the title was
changed from "Process" to "Summons" to show that the rule's
requirements "applie[d] only to that form of legal process."
Amendments to Fed. R. Civ. P. 4, 146 F.R.D. 401, 559 (1993).
Turning to subsection (k) of Rule 4, it is apparent that
it addresses an aspect of how a summons may be served. Like the
- 19 -
rule as a whole, it, too, bears a title that adverts to the
requirements for effecting service of a summons: "Territorial
Limits of Effective Service." Specifically, paragraph (1) of
subsection (k) limits the instances in which "[s]erving a summons
or filing a waiver of service establishes personal jurisdiction
over a defendant":
(k) Territorial Limits of Effective Service.
(1) In General. Serving a summons or
filing a waiver of service establishes
personal jurisdiction over a defendant:
(A) who is subject to the
jurisdiction of a court of general
jurisdiction in the state where the
district court is located;
(B) who is a party joined under Rule
14 or 19 and is served within a
judicial district of the United
States and not more than 100 miles
from where the summons was issued;
or
(C) when authorized by federal
statute.
Fed. R. Civ. P. 4(k)(1)(A)–(C) (emphasis added). Thus, while the
text states that personal jurisdiction can be "establishe[d]" by
"[s]erving a summons" so long as any of these three criteria is
met, it nowhere suggests that Rule 4 deals with anything other
than service of a summons, or that Rule 4 constrains a federal
court's power to act once a summons has been properly served, and
personal jurisdiction has been established.
We see no textual basis in Rule 4 for concluding that
the district court's exercise of jurisdiction over the opt-in
- 20 -
claims would be improper when "there is no dispute the named
plaintiff properly served [D&Z]" by serving a summons in accord
with Rule 4(c); D&Z does not contend that such service failed to
satisfy the territorial limits of Rule 4(k)(1)(A) given that Waters
had been employed by D&Z in Massachusetts; see United Electric,
960 F.2d at 1087 (citing Mass. Gen. Laws ch. 223A, § 3), and D&Z
conceded that the opt-ins are not "responsible" for serving a
summons.7
To be sure, Rule 4(k)(1)(A) does make the due process
standard of the Fourteenth Amendment applicable to federal-
question claims in federal court when a plaintiff relies on a state
long-arm statute for service of the summons. Rule 4(k)(1)(A)
requires looking to state law to determine whether service is
effective to confer jurisdiction, and "because state law is subject
to Fourteenth Amendment limitations, the minimum contacts
doctrine, while imposing no direct state-by-state constraint on a
federal court in a federal question case, acts indirectly as a
governing mechanism for the exercise of personal jurisdiction."
United Electric, 960 F.2d at 1086. But this is not the same thing
as saying that Rule 4 or the Fourteenth Amendment governs district
7 The Sixth Circuit in Canaday agreed that the opt-ins have
no service obligations under Rule 4. 9 F.4th at 399–400 ("After
Anthem appeared in the case in response to Canaday's service of
the complaint, it is true, the nonresident plaintiffs . . . had no
additional service obligation under Civil Rule 4(k).").
- 21 -
court jurisdiction in federal question cases after a summons has
been properly served; had it been the FRCP drafters' intention to
have Rule 4 govern more than the service of a summons, they could
have simply said that additional plaintiffs may be added to an
action if they could have served a summons on a defendant
consistent with Rule 4(k)(1)(A). But that was not the choice the
drafters made, and for good reason. It would be anomalous to apply
the Fourteenth Amendment, rather than the Fifth Amendment, to
federal causes of action after a summons is properly served.8
Significantly, FRCP 82 also states that "[t]hese rules do not
extend or limit the jurisdiction of the district courts." Fed. R.
Civ. P. 82; see also Miss. Publ'g Corp. v. Murphree, 326 U.S. 438,
445 (1946) ("Rule [4(k)(1)(A)] serves only to implement the
jurisdiction . . . Congress has conferred, by providing a procedure
by which the defendant may be brought into court at the place where
Congress has declared that the suit may be maintained.")
8The dissent cites various law review articles suggesting
changes to Rule 4(k) that would expand the jurisdiction of federal
courts. See Scott Dodson, Personal Jurisdiction and Aggregation,
113 NW. U. L. REV. 1, 37-40 (2018); see also Stephen E. Sachs, How
Congress Should Fix Personal Jurisdiction, 108 NW. U. L. REV. 1301,
1316 (2014); A. Benjamin Spencer, The Territorial Reach of Federal
Courts, 71 FLA. L. REV. 979, 990-91 (2019). With one exception,
see infra note 12, none of the articles discusses the particular
issue addressed here: whether Rule 4(k) continues to apply after
service of process has been effectuated.
- 22 -
B.
Apart from the text of Rule 4(k), its history shows that
its limited purpose was to govern service of a summons, not to
limit the jurisdiction of the federal courts after a summons has
been served. The first version of Rule 4(f), (now Rule 4(k))
entitled "Territorial Limits of Effective Service," required that
for process to be effectively served, it must be physically served
"anywhere within the territorial limits of the state in which the
district court is held" unless a federal statute authorized service
"beyond the territorial limits of that state." Fed. R. Civ. P.
4(f) (1937). This geographical limit prevented a plaintiff from
serving a defendant anywhere outside of the state in which the
underlying lawsuit would take place, consistent with the then-
geographically-based concept of "tag" jurisdiction. See Pennoyer
v. Neff, 95 U.S. 714, 733 (1878).
Due to the "changes in the technology of transportation
and communication, and the tremendous growth of interstate
business activity," business operations transcended the bounds of
any one state, rendering jurisdiction based on physical presence
largely obsolete. Daimler AG v. Bauman, 571 U.S. 117, 126 (2014)
(quoting Burnham, 495 U.S. at 617). Responding to this change,
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 221 U.S. 457, 463 (1940)), eliminated
the physical presence requirement, holding that Fourteenth
- 23 -
Amendment due process is satisfied for jurisdictional purposes
when a defendant has "certain minimum contacts [with the forum]
such that the maintenance of the suit does not offend 'traditional
notions of fair play and substantial justice.'"
The 1963 version of Rule 4(f), also entitled
"Territorial Limits of Effective Service," reflected the
principles set forth in International Shoe. Citing "[a]n important
and growing class of State [long-arm] statutes [that] base personal
jurisdiction over nonresidents on the doing of acts or on other
contacts within the State," Rule 4 was amended to "expressly
allow[] resort in original Federal actions to the procedures
provided by State law for effecting service on nonresident
parties." Amendments to Fed. R. Civ. P. 4, 31 F.R.D. 587, 627-28
(1963). Specifically, Rule 4(f) was "amended to assure the
effectiveness of service outside the territorial limits of the
State" when allowed by state law. Id. at 629 (emphasis added).
The amended text allowed process to be served "anywhere within the
territorial limits of the state in which the district court is
held, and, when authorized by a statute of the United States or by
these rules, beyond the territorial limits of that state." Id. at
594.
Later amendments to other provisions of Rule 4 also show
that the rule evolved to simplify service, not to govern
jurisdiction after service. The 1980 amendments expanded the
- 24 -
category of individuals who could act as process servers from
marshals, deputies, and individuals specifically appointed by the
court to include any person "authorized to serve process in an
action brought in the courts of general jurisdiction of the state
in which the district court is held or in which service is made."
Amendments to Fed. R. Civ. P. 4, 85 F.R.D. 521, 524 (1980). Despite
this expansion, the 1983 amendments recognized that the job of
serving process still largely fell on marshals in states that did
not authorize additional process servers, and they also reflected
views that mail service and other methods of service prescribed by
state law were of paramount importance. Amendments to Fed. R.
Civ. P. 4, 96 F.R.D. 81, 118-19 (1983). The 1983 amendments
overhauled Rule 4(c) (now Rule 4(c), (e)) to allow a summons to
"be served by any person who is not a party and is not less than
18 years of age" and permitted service "by mailing a copy of the
summons . . . to the person to be served." Id. at 82–83. In
response to efforts to "delete[] the provision" authorizing
service pursuant to the law of the forum state, the 1983 amendments
"saw no reason to forego systems of service that had been
successful in achieving effective notice," and incorporated that
provision into the new version of Rule 4(c). Id. at 83, 119.
The final amendment to Rule 4(k) occurred in 1993.
Subdivision (f) became subdivision (k), and the committee notes
emphasized that the amendment's purpose was to "facilitate the
- 25 -
service of the summons and complaint" and to "explicitly
authorize[] a means for service of the summons and complaint on
any defendant." 146 F.R.D. at 558. The amended rule "retain[ed]
the substance of the former rule" by "explicitly authorizing the
exercise of personal jurisdiction over persons who can be reached
under state long-arm law." Id. at 570.
The fact that 4(k)(1)(A) provides that "service of a
summons" establishes personal jurisdiction over defendants by
utilizing a given state's long-arm statute incorporating
Fourteenth Amendment requirements does not show that the
Fourteenth Amendment applies to federal-law claims after service
is satisfied. See 4 Charles A. Wright, Arthur R. Miller & Adam N.
Steinman, Federal Practice and Procedure § 1007 (4th ed. 2021)
("The rule was also amended to clarify when service of a summons
would establish personal jurisdiction in federal court."). In
fact, the advisory committee notes make clear that a federal
court's jurisdiction once service has been effectuated is
determined by the Fifth Amendment's Due Process Clause at least in
federal actions. 146 F.R.D. at 566 ("Service of the summons under
this subdivision does not conclusively establish the jurisdiction
of the court over the person of the defendant. A defendant may
assert the territorial limits of the court's reach set forth in
subdivision (k), [i.e. whether the service is effective under state
or federal law to confer jurisdiction] including the
- 26 -
constitutional limitations that may be imposed by the Due Process
Clause of the Fifth Amendment."). Thus, although serving a summons
in accordance with state or federal law is necessary to establish
jurisdiction over a defendant in the first instance, the Fifth
Amendment's constitutional limitations limit the authority of the
court after service has been effectuated at least in federal-law
actions.
C.
Another reason that we cannot read Rule 4(k)(1)(A) as
limiting the court's authority over the added plaintiffs is that
FRCP 20 already defines that authority. Rule 20 sets the limit
for allowing additional parties to join a pre-existing lawsuit,
permitting joinder of those parties with claims arising out of the
"same transaction [or] occurrence" and presenting common
"question[s] of law or fact." Fed. R. Civ. P. 20(a)(1)(A), (B).
The FLSA's "similarly situated" limitation for collective actions
displaces Rule 20 and limits the range of individuals who may be
added as opt-in plaintiffs by requiring that they be "similarly
situated." See, e.g., Cruz v. Bristol-Myers Squibb Co., PR, 699
F.3d 563, 569 (1st Cir. 2012) (The similarly situated "requirement
is even less stringent than the test for party joinder" (citations
omitted)); Campbell, 903 F.3d at 1104–05 ("The natural parallel is
to plaintiffs . . . later added under the ordinary rules of party
joinder."); Chamber of Comm. Br. 12 ("[T]he FLSA's opt-in provision
- 27 -
is properly viewed as a rule of joinder." (citation omitted)). We
are not aware of, and D&Z has not cited, a case in which a court
held that Rule 4 applies to plaintiffs joined under Rule 20.
Finally, the FLSA and its legislative history show that
Congress created the collective action mechanism to enable all
affected employees working for a single employer to bring suit in
a single, collective action. The FLSA's purpose was to allow
efficient enforcement of wage and hour laws against large, multi-
state employers, a "broad remedial goal" that the Supreme Court
has instructed "should be enforced to the full extent of its
terms." Hoffman-La Roche, 493 U.S. at 173.
The FLSA's original premise was to target those
employers engaged in interstate commerce, defined as "trade,
commerce, transportation, transmission, or communication among the
several States or from any State to any place outside thereof."
Fair Labor Standards Act of 1938, ch. 676, § 3(b), 52 Stat. 1060.
Specifically, the legislative history evinces congressional intent
to "provide a living wage" for workers at large, multi-state
businesses, such as Sears Roebuck, General Motors, and Coca-Cola.
82 Cong. Rec. 1815–16 (1937) (remarks of Rep. Adolph Sabath); see
also 93 Cong. Rec. 2182 (1947) (remarks of Sen. Donnell)
(contemplating a suit in which "John Smith files a suit on behalf
of himself and all other employees of the United States Steel
Corporation" (emphasis added)). The congressional debates also
- 28 -
reveal a clear intent for a collective action to allow a "suit by
one or more employees, for himself and all other employees
similarly situated," regardless of the state in which they were
employed. Id. (emphasis added).
Interpreting the FLSA to bar collective actions by out-
of-state employees would frustrate a collective action's two key
purposes: "(1) enforcement (by preventing violations and letting
employees pool resources when seeking relief); and (2) efficiency
(by resolving common issues in a single action)." Swales, 985
F.3d at 435 (citing Bigger v. Facebook, 947 F.3d 1043, 1049 (7th
Cir. 2020)); see also Hoffman-La Roche, 493 U.S. at 170 ("A
collective action allows . . . plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources.
The judicial system benefits by efficient resolution in one
proceeding of common issues of law and fact arising from the same
alleged discriminatory activity.").
Holding that a district court lacks jurisdiction over
the non-resident opt-in claims would "force[] those plaintiffs to
file separate lawsuits in separate jurisdictions against the same
employer based on the same or similar alleged violations of the
FLSA." Canaday, 9 F.4th at 415–16 (Donald, J., dissenting). That
is not what the FLSA contemplated.
- 29 -
V.
As we have noted earlier, the Sixth and Eighth Circuits,
faced with BMS-based personal jurisdiction challenges to FLSA
collective actions, disagree with the decision that we reach today.
Neither decision suggests that the Fourteenth Amendment directly
limits federal-court authority to entertain multi-state collective
actions. Both opinions instead rely on an erroneous reading of
Rule 4, and fail to successfully confront the fact that Rule 4(k)
is a "territorial limit" on "effective service" of a summons, and
thus logically cannot be read to limit a federal court's
jurisdiction after a summons is properly served.
In this respect, the Eighth Circuit, with little
discussion, reached the same result as the Sixth Circuit, ruling
it "a given" that the Fourteenth Amendment, by way of Rule 4,
limited the court's jurisdiction with respect to all of the claims,
including those of the opt-in plaintiffs. Vallone, 9 F.4th at
865. The Sixth Circuit opinion is more expansive.9 It concluded
that even for "amended complaints and opt-in notices, the district
court remains constrained by . . . the host State's [] personal
jurisdiction limitations." Canaday, 9 F.4th at 400 (citing Tamburo
v. Dworkin, 601 F.3d 693, 700–01 (7th Cir. 2010)). But Tamburo,
the only case cited in support of this proposition, is silent on
The Sixth Circuit's decision was an interlocutory appeal
9
pursuant to 28 U.S.C. § 1292(b). See Canaday, 9 F.4th at 395.
- 30 -
whether Rule 4 concerns the scope of personal jurisdiction after
service of a summons. The case involved only a single, original
plaintiff and the original defendants. The sole plaintiff served
a summons under Rule 4 and the state's long-arm statute. See 601
F.3d at 698, 700. Since the personal jurisdiction issue in Tamburo
concerned only the original plaintiff's state-law claims, id. at
700–01, the court had no occasion to consider its jurisdiction
over federal claims or parties added after a summons was properly
served.10
The other authorities relied on by the Sixth Circuit do
not come close to addressing whether 4(k) and the Fourteenth
Amendment apply to federal-law claims after a summons has been
properly served pursuant to a state long-arm statute.11 See Handley
v. Ind. & Mich. Elec. Co., 732 F.2d 1265, 1269 (6th Cir. 1984)
(affirming district court's exercise of jurisdiction over
nonresident defendant served by original plaintiff pursuant to
10The Seventh Circuit affirmed the district court's 12(b)(6)
dismissal of the federal-law claims before addressing personal
jurisdiction over the state-law claims. Tamburo, 601 F.3d at 699–
700.
11 The dissent here also cites Old Republic Insurance Co. v.
Continental Motors, Inc., 877 F.3d 895, 902-03 (10th Cir. 2017),
for the proposition that a "plaintiff's amended complaint is 'the
operative one' for the purpose of analyzing" a defendant's motion
to dismiss for lack of personal jurisdiction. Old Republic is
similar to Tamburo, as it also involved neither federal claims nor
the application of Rule 4 to parties added after service of process
had been effectuated.
- 31 -
Rule 4); SEC v. Ross, 504 F.3d 1130, 1138-40 (9th Cir. 2007)
(holding that a court lacked jurisdiction over a defendant who was
never served with or named as a party in the federal-law complaint,
despite statute's nationwide service of process provision).12
The Sixth Circuit opinion rests on a supposed anomaly
resulting from our interpretation—that added parties and added
claims are not subject to Rule 4's limitations. The Sixth Circuit
warned that reading Rule 4(k)(1)(A) as applying only to plaintiffs
responsible for serving a summons risks "limitations on judicial
power [being] one amended complaint—with potentially new claims
and new plaintiffs—away from obsolescence." Canaday, 9 F.4th at
400; see also Molock, 952 F.3d at 309 (Silberman, J., dissenting)
(suggesting that Rule 4(k) must be interpreted broadly to ensure
that "litigants [cannot] easily sidestep the territorial limits on
personal jurisdiction simply by adding claims—or by adding
plaintiffs, for that matter—after complying with Rule 4(k)(1)(A)
in their first filing").
12The opinion also relied on an article that states "courts
regularly apply Rule 4(k)(1)(A) limitations to the claims
appearing in amended complaints," but this proposition is also
supported only by Tamburo. See A. Benjamin Spencer, Out of the
Quandary: Personal Jurisdiction Over Absent Class Member Claims
Explained, 39 REV. LITIG. 31, 43–44 (2019). Another statement cited
in Canaday, see 9 F.4th at 400, that "Rule 4(k) remain[s] the
operative constraint[] that district courts apply to . . . new
claims by newly joined parties," cites the same article, which
cites no support, see 39 REV. LITIG. at 44.
- 32 -
There is no anomaly. As discussed above, Rule 4 is
concerned with initial service, not jurisdictional limitations
after service. And the consequence is not that additional parties
and claims can be added to escape jurisdictional limitations. In
both the case of added parties and claims, the court's jurisdiction
is still subject to constitutional limitations—in the case of
federal-law claims, the Fifth Amendment—and statutory limitations
governing subject matter jurisdiction and venue. See 7 Charles A.
Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and
Procedure § 1659 (3d ed.) ("[T]he statutory jurisdiction and venue
requirements are fully applicable to Federal Rule of Civil
Procedure 20 and may restrict the ability to join parties.")13 If
there is any anomaly, it is the approach suggested by the Sixth
Circuit—applying the Fourteenth Amendment to federal-law claims
that are governed only by the Fifth Amendment.
The Sixth Circuit also relied on the FLSA's failure to
authorize nationwide service of process, urging that because the
FLSA lacks a nationwide service of process provision, that left
Rule 4(k)(1)(A) as the only basis for establishing jurisdiction.
See Canaday, 9 F.4th at 396. We agree that "a basis for service
13Also, claims "radically different from those set out in the
original pleading," may require courts to "direct personal service
of the new pleading on the [defendant] pursuant to Rule 4." 4B
Charles A. Wright, Arthur R. Miller & Adam N. Steinman, Federal
Practice and Procedure § 1146 (4th ed.).
- 33 -
of a summons on the defendant is prerequisite to the exercise of
personal jurisdiction," BNSF, 137 S. Ct. at 1556 (citing Omni
Capital, 484 U.S. at 104), and 4(k)(1)(A) is the sole basis for
service when nationwide service is not authorized. But the absence
of a nationwide-service provision in the FLSA only requires resort
to state law for service of process. See United States v. Swiss
Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) ("[I]n federal
question cases . . . a plaintiff need only show that the defendant
has adequate contacts with the United States as a whole . . .
[H]owever, the plaintiff must still ground its service of process
in a federal statute or civil rule.") It says nothing about
whether 4(k)(1)(A) constrains the court's jurisdiction once
service is effectuated.14
Finally, much of the Sixth Circuit opinion sought to
distinguish FLSA collective actions and Rule 23 class actions,
likening collective actions to the mass action in BMS. See
Canaday, 9 F.4th at 402–03. We agree that FLSA collective actions
and Rule 23 class actions are dissimilar in myriad ways. The
paramount similarity, and the only one that matters for purposes
14 The Sixth Circuit contended that such an interpretation
would render nationwide service of process provisions pointless.
Canaday, 9 F.4th at 399 ("What indeed would be the point of these
provisions if Civil Rule 4(k) already allowed jurisdiction and
service?"). But our interpretation of Rule 4(k) does not allow
nationwide service in all cases. Initial service must still rely
on state law when there is no nationwide service provision.
- 34 -
of assessing the district court's jurisdiction here, is that the
named plaintiff in both actions is the only party responsible for
serving the summons, and thus the only party subject to Rule 4.15
VI.
Accordingly, we affirm the district court's denial of
D&Z's motion to dismiss the nonresident opt-in plaintiffs. The
decision is
Affirmed. Costs to appellee.
-Dissenting Opinion Follows-
15 A separate Sixth Circuit opinion recently held that the
personal jurisdiction inquiry in a Rule 23 class action is required
only for a named plaintiff's claims because "a class action is
formally one suit in which, as a practical matter, a defendant
litigates against only the class representative," and "absent
class members are not considered 'parties,' as a class
representative is, for certain jurisdictional purposes." See
Lyngaas v. Curaden AG, 992 F.3d 412, 435 (6th Cir. 2021).
- 35 -
BARRON, Circuit Judge, dissenting. The majority today
decides a significant question of first impression in our Circuit
about the meaning of Federal Rule of Civil Procedure 4(k)(1)(A).
It does so in a manner that creates a direct conflict with the
ruling of two circuits and that will have seemingly wide-ranging
effects on a slew of cases that have nothing to do with the specific
dispute at hand. In my view, there is no reason for us to decide
this question at this time, given the interlocutory posture of
this appeal. Thus, I write separately to explain why, for reasons
independent of the merits of the majority's ruling, I dissent.
I.
Federal Rule of Civil Procedure 4(k)(1)(A) provides that
a summons "establishes" personal jurisdiction over a defendant in
a civil action that is brought in federal court if the defendant
"is subject to the jurisdiction of a [state] court of general
jurisdiction in the state where" the civil action commenced. In
response to relatively recent developments in the law that defines
the limits that the Fourteenth Amendment's Due Process Clause
places on the exercise of personal jurisdiction over a defendant
in a civil action in state court, see Bristol-Meyers Squibb Co. v.
Superior Court of California, San Francisco County, 137 S. Ct.
1773 (2017), some commentators have called for amending
Rule 4(k)(1)(A). The commentators argue that, due to these recent
developments, an amendment to the rule is necessary to ensure that
- 36 -
it does not become a bar to the beneficial aggregation of claims
in federal court that it was not originally intended to be. See
Scott Dodson, Personal Jurisdiction and Aggregation, 113 Nw. U. L.
Rev. 1, 37-40 (2018); see also Stephen E. Sachs, How Congress
Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1316
(2014).
The commentators assert that for most of the rule's life
Fourteenth Amendment-based due process limits on the exercise of
personal jurisdiction in state court were not as strict as the
Supreme Court of the United States has deemed them to be in recent
rulings, such as Bristol-Meyers Squibb. See Dodson, supra, at 37.
The commentators also note that Fifth Amendment-based due process
limits on the exercise of personal jurisdiction in federal court
are not nearly as strict as the Fourteenth Amendment's parallel
limits in state court have been held to be. See A. Benjamin
Spencer, The Territorial Reach of Federal Courts, 71 Fla. L. Rev.
979, 990-91 (2019). The commentators thus contend that there is
no good reason to saddle federal courts -- as Rule 4(k)(1)(A) now
saddles them -- with the current limits on the exercise of personal
jurisdiction that the federal Constitution imposes only on state
courts. See, e.g., the sources cited in Dodson, supra, at 36
n.216.
Nonetheless, no such amendment to Rule 4(k)(1)(A) has
been made to this point, and defendants are invoking the rule with
- 37 -
seemingly greater frequency to request that federal courts dismiss
claims based on limits on the exercise of personal jurisdiction
imposed on state courts by the Fourteenth Amendment's Due Process
Clause. See, e.g., Lyngaas v. Curaden Ag, 992 F.3d 415 (6th Cir.
2021); Molock v. Whole Foods Mkt. Grp., Inc., 952 F.3d 293 (D.C.
Cir. 2020). Indeed, this case reflects the trend, as the defendant
here -- Day & Zimmermann -- contends that Rule 4(k)(1)(A) bars the
United States District Court for the District of Massachusetts
from exercising personal jurisdiction over certain claims solely
because of constraints that a state court in Massachusetts would
face in exercising personal jurisdiction over those same claims by
virtue of recent Supreme Court precedent interpreting the
Fourteenth Amendment's Due Process Clause.
Specifically, Day & Zimmermann contends that, because of
the interaction between Rule 4(k)(1)(A) and the Fourteenth
Amendment-based due process limits on personal jurisdiction over
a defendant in state court that were relatively recently set forth
in Bristol-Myers Squibb, the District Court must dismiss the claims
of certain of the individuals who have filed written consent forms
that signal their intention to participate in the collective action
that the named plaintiff here, John Waters, has initiated by the
inclusion of a Fair Labor Standards Act (FLSA) collective action
claim in his complaint pursuant to section 216(b) of the FLSA. In
that complaint, Waters asserts, alongside his own solely
- 38 -
individual claim under the FLSA, an FLSA claim "on behalf of" what
his complaint refers to as a "putative class" of certain former
employees of Day & Zimmermann who are "similarly situated" to him.
See 29 U.S.C. § 216(b).
II.
In rejecting Day & Zimmermann's contention that the
District Court erred in denying the motion to dismiss the claims
just described, the majority relies on the text and purposes of
Rule 4(k)(1)(A). The majority contends based on these interpretive
sources that the rule is best read to restrict the scope of the
condition that it sets forth that makes it so that a summons
"establishes" personal jurisdiction in federal court over the
defendant who is served with it -- namely, the condition that the
defendant "is subject to the jurisdiction of a [state] court of
general jurisdiction in the state where the" civil action
commenced.
In the majority's view, Rule 4(k)(1)(A) must be read to
subject that condition to an implicit time-of-service-based
limitation on its scope. The majority therefore rejects the
contention -- pressed vigorously by Day & Zimmermann -- that the
rule provides that the condition that it sets forth must be
satisfied for the life of the suit.
In other words, the majority embraces a reading of the
rule in which that condition need be satisfied only at the time
- 39 -
that the summons is served. For this reason, the majority
concludes that the condition need not be satisfied, as Day &
Zimmermann would have it, as to any claims and plaintiffs that are
added after the summons has been served.
The result is that, under the majority's reading of Rule
4(k)(1)(A), Fourteenth Amendment-based due process limits on
personal jurisdiction in state court -- including those set forth
in Bristol-Myers Squibb -- can have no application to the claims
of those individuals here who have filed written forms in which
they have consented to participate in Waters's collective action
pursuant to section 216(b) of the FLSA. As the majority explains,
such due process limits have no application to those claims by
virtue of the Fourteenth Amendment itself, given that the suit is
being brought in federal court. And, as the majority emphasizes,
those limits also have no application to those claims by virtue of
Rule 4(k)(1)(A), because the individuals who filed the written
forms in which they consented to participate in Waters's FLSA
collective action did so only after Waters had served Day &
Zimmermann with the summons.
Thus, according to the majority, it follows that the
only bar that could potentially prevent the District Court from
exercising personal jurisdiction over Day & Zimmermann as to the
claims at issue in this appeal is the bar that the Due Process
Clause of the Fifth Amendment might impose. But, as the majority
- 40 -
rightly concludes, Day & Zimmermann has made no argument that the
Fifth Amendment's Due Process Clause does impose any such bar here.
For that reason, the majority affirms the District Court's denial
of the motion to dismiss that is before us in this appeal.
III.
The majority's time-of-service-based reading of Rule
4(k)(1)(A) is internally coherent. The text of that rule is at
least arguably ambiguous as to whether the summons "establishes"
personal jurisdiction over the defendant for the life of the suit
only if that defendant "is" subject to the jurisdiction of the
state court for the life of the suit or whether the summons
"establishes" personal jurisdiction over the defendant for the
life of the suit so long as that defendant "is" subject to the
jurisdiction of a state court at the time that the summons is
served.
The majority's time-of-service-based reading of the rule
also accords with the intuition that it would be odd for a rule
that seeks only to describe the means for making service of process
effective to make those means dependent on events that might occur
after service has been made. It is an arguable virtue of the
majority's reading of the rule that one need only attend to what
has occurred up until service has been completed to know whether
such service has been effective.
- 41 -
The majority's reading of the rule also has going for it
one more thing: it helps to ensure that the rule will not prove to
be the seemingly unintended obstacle to the beneficial aggregation
of claims in federal court that has provoked some commentators to
call for its amendment. That is because, under the majority's
reading of the rule, a plaintiff may ensure the beneficial
aggregation of such claims in most cases merely by amending the
complaint after the summons has been served to include any claims
over which a state court would not be able to exercise personal
jurisdiction.
These features of the majority's reading of the rule do
not, however, spare it from being controversial. The reading is
in apparent tension with the broader, life-of-the-suit reading of
the rule's condition that would appear to undergird the
commentators' calls for its amendment. It would be strange for
these commentators to have called for such an amendment if they in
fact share the majority's view that the rule's deleterious effects
on the beneficial aggregation of claims plainly can be overcome at
present by a means as simple as the post-summons amendment of the
complaint that was operative at the time that the summons was
served. See A. Benjamin Spencer, Out of the Quandary: Personal
Jurisdiction over Absent Class Members Explained, 39 Rev. Litig.
31, 43 (2019) ("It would be preposterous to suggest
that . . . amended complaints . . . may evade the restrictions
- 42 -
applicable to claims contained within complaints served under Rule
4, subject only to the limits of the Fifth Amendment's due process
clause. Were such the case, the ability to amend would provide a
gaping loophole to the ordinary territorial restrictions on
federal court jurisdiction that Rule 4(k) imposes.").
The majority's reading of Rule 4(k)(1)(A) also directly
conflicts, as the majority itself acknowledges, with that of other
circuits. See Canaday v. Anthem Cos., 9 F.4th 392, 400 (6th Cir.
2021) ("Even with amended complaints . . . the district court
remains constrained by Civil Rule 4(k)'s -- and the host
State's -- personal jurisdictional limitations."); see also
Vallone v. CJS Solutions Grp., LLC, 9 F.4th 861, 865 (8th Cir.
2021). Nor am I aware of any other case in which any court
(including our own) has ever read Rule 4(k)(1)(A) in the narrow,
time-of-service-limited way that the majority reads it.
Indeed, the common (if, perhaps unreflective) practice
of federal courts under this rule appears, as best I can tell, to
have been to apply Fourteenth Amendment-based (rather than Fifth
Amendment-based) due process limits on personal jurisdiction
throughout a suit's duration, and so even as to later-added claims
and plaintiffs. See, e.g., Old Republic Ins. Co. v. Cont'l Motors,
Inc., 877 F.3d 895, 902-03 (10th Cir. 2017) (noting that the
plaintiff's amended complaint is "the operative one" for the
purpose of analyzing a Rule 12(b)(2) motion to dismiss for lack of
- 43 -
personal jurisdiction); see also Spencer, Out of the Quandary,
supra, at 43 ("There is no question that -- notwithstanding that
such amended complaints are not served with a summons under Rule
4 -- new claims appearing in amended complaints must satisfy the
jurisdictional constraints imposed by Rule 4(k); courts regularly
apply Rule 4(k)(1)(A) limitations to the claims appearing in
amended complaints.").16 Thus, it would appear that, given the way
that the majority now reads the rule, federal courts in our circuit
will have to change how they have been doing things in many cases,
and in all cases that involve state law claims. For, under the
majority's reading, they will have to assess personal jurisdiction
in those cases with exclusive reference to Fifth Amendment-based
16 The majority appears to suggest that even if Rule
4(k)(1)(A) applies to state law claims added post-summons, it does
not apply to parties asserting federal claims post-summons. Maj.
Op. at 31 n.10. But, nothing in the text of the rule distinguishes
between the rule's application to state law claims and its
application to federal ones, even though the rule plainly applies
to federal claims generally, see Walden v. Fiore, 571 U.S. 277,
283 (2014) (applying Rule 4(k)(1)(A) to a federal law claim), and
even though other parts of Rule 4(k) do expressly distinguish
between state and federal claims, see Fed. R. Civ. P. 4(k)(2)
(drawing that very distinction by way of reference to "a claim
that arises under federal law"). Nor does anything in the text of
the rule distinguish between the rule's application to claims and
its application to parties. Thus, it would appear to be the case
that however the rule applies to later-added state law claims must
be how it applies to later-added parties asserting federal claims.
I add only that the rule's failure to draw a distinction between
state and federal claims is precisely what has motivated
commentators to recommend that the rule be amended to ensure that
federal claims (including, it seems, ones brought by later-added
parties) are not subject to the rule in the same way that state
law claims are. See Dodson, supra, at 37-40.
- 44 -
due process limits (and thus to work their way through all the
legal complexity that may arise from their doing so in cases
involving state law claims) despite their seeming common practice
of not using that lens except in certain classes of cases that
involve federal claims, see Fed. R. Civ. P. 4(k)(1)(C); id.
4(k)(2), in which the degree of legal complexity that then arises
from using that same lens is much less.
IV.
In my view, there is no reason to decide in this case
whether the majority is right to read Rule 4(k)(1)(A) to be subject
to the implicit time-of-service limitation that it discerns on the
scope of the condition that the rule sets forth. Given the
embryonic state of the FLSA collective action that is before us
and the interlocutory nature of this appeal, I would let the suit
proceed apace in the District Court rather than attempt to resolve
on interlocutory review this substantial question of first
impression in our Circuit about the best way to read
Rule 4(k)(1)(A). In fact, it seems to me that there is special
reason to follow this more restrained course here, because the
resolution of the question that the majority chooses to decide in
this case's preliminary posture will be binding in our Circuit not
only in cases that concern collective actions under the FLSA but
also in a whole range of cases that also implicate Rule 4(k)(1)(A)
but that have nothing to do with FLSA collective actions at all.
- 45 -
I note that the more cautious approach that I favor,
which would cause me to dismiss this interlocutory appeal, accords
with our general reluctance to hear appeals from denials of motions
to dismiss precisely because such appeals necessarily come to us
on an interlocutory basis. See Caraballo-Seda v. Municipality of
Hormigueros, 395 F.3d 7, 8 (1st Cir. 2005) (acknowledging "our
general rule prohibiting interlocutory appeals from the denial of
a motion to dismiss"). Nor do I see a reason to deviate from this
tried-and-true stance by making a case-specific exception to it
here, even if there might be good reason to make such an exception
in some cases that involve requests to appeal from denials of
motions to dismiss that are made in connection with collective
actions that are brought under section 216(b) of the FLSA.
The underlying (and unsuccessful) motion to dismiss that
is at issue here was made before the named plaintiff who filed the
complaint asserting the FLSA collective action claim, Waters, has
even moved to certify the putative class of "similarly situated"
employees on whose behalf he seeks to sue in bringing that claim.
See 29 U.S.C. § 216(b). Thus, as Waters pointed out in opposing
interlocutory review of the denial of that motion here, still more
opt-ins may consent to participate in the collective action that
is at issue even after a ruling on the merits of this appeal. Nor
do we know for certain at this juncture -- as we would if we waited
for a motion to certify to be filed -- that Waters will seek to
- 46 -
bring a collective FLSA action on behalf of every present opt-in,
let alone on behalf of each of those opt-ins who would be permitted
to sue under the majority's construction of Rule 4(k)(1)(A). Cf.
Molock, 952 F.3d at 298-99 ("[P]rior to . . . certification, the
potential [collective action] and their potential claims are just
that: potentials."). And, of course, it is up to Waters in the
first instance whether any individual who might wish to opt in and
participate in the collective action may do so, precisely because
he is bringing it.
Reinforcing the reason to adhere in this case (given its
nascent nature) to our usual unwillingness to resolve an appeal
from a denial of a motion to dismiss is the fact that Day &
Zimmermann has made little more than a conclusory showing about
the need for us to weigh in now on the District Court's ability to
exercise personal jurisdiction over it as to the claims of members
of what at this point is only a "putative" class of claimants.
That Day & Zimmermann has not made a substantial showing of an
unusual need for resolution of that question this early in this
case is especially significant because it is not as if Day &
Zimmermann is presently at risk of being held liable to any of the
so-called opt-ins who might end up being in that still, as-yet-
defined class.
If a default judgment were entered against Day &
Zimmermann at this point in the case, I do not see how any of those
- 47 -
individuals who thus far have filed written consent forms to
participate in Waters's collective action under the FLSA could
benefit from that judgment any more than they could if they had
not filed such forms. That is precisely because the named
plaintiff who is bringing the collective action under the FLSA,
Waters, has not yet moved for certification of a collective action
on their behalf -- or, for that matter, on behalf of anyone. Cf.
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 129
(E.D.N.Y. 2011) (granting a motion for certification of an FLSA
collective action simultaneously with a motion for default
judgment).
Thus, while I recognize that an earlier panel of our
Court granted the petition for certification of the interlocutory
appeal pursuant to 28 U.S.C. § 1292(b), see Waters v. Day &
Zimmermann NPS, Inc., No. 20-1831 (1st Cir. Oct. 14, 2020), I am
convinced -- now that we have had full briefing and oral
argument as that panel did not -- that the petition was
improvidently granted. See Caraballo-Seda, 395 F.3d at 9. I am
aware in so concluding of the out-of-circuit precedent that has
permitted the interlocutory review of the merits of a ruling on a
motion to dismiss the claims of individuals who had opted in to a
named plaintiff's collective action claim under the FLSA. But,
the cases that have permitted such an appeal were ones not only in
which that appeal was from a grant of the motion to dismiss but
- 48 -
also in which the appeal was from a ruling on a motion to dismiss
that was made at the time of (or in the wake of) a motion to
certify a class of similarly situated persons on behalf of whom
the named plaintiff was bringing the collective action under the
FLSA. See Canaday, 9 F.4th at 395; see also Vallone v. CJS
Solutions Grp., LLC, 9 F.4th 861, 864 (8th Cir. 2021) (involving
appellate review of a district court's order limiting an FLSA
collective action to "employees 'who engaged in out-of-town travel
to or from a Minnesota jobsite for [the defendant] or who resided
in Minnesota'"). I am not aware of any precedent prior to this
case in which a court has permitted interlocutory review of a
denial of a motion to dismiss such opt-in claims in an FLSA
collective action, let alone any such precedent in a case of that
sort in which the denial of the motion to dismiss preceded -- as
it does here -- a motion to certify the class of "similarly
situated" persons on whose behalf the named plaintiff is bringing
the collective action under the FLSA.17
17 I note that, in other cases in which, like here, the
named plaintiff had made no motion to certify the class of
"similarly situated" individuals on whose behalf the FLSA
collective action would be brought, other district courts have
denied motions to certify for interlocutory appeal under 28 U.S.C.
§ 1292(b) the district court's order denying a Fed. R. Civ. P.
12(b)(2) motion to dismiss the claims of opt-ins. See Murphy v.
Labor Source, LLC, No. 19-cv-1929, 2021 WL 527932 (D. Minn. Feb.
12, 2021); Seiffert v. Qwest Corp., No. CV-18-70-GF-BMM, 2019 WL
859045 (D. Mont. Feb 22, 2019).
- 49 -
Accordingly, I would dismiss this appeal. By doing so,
we would be following our usual wait-and-see approach when
confronted with a request to decide an appeal from a denial of a
motion to dismiss, and, by doing so, we also would be ensuring
that we would not be deciding a major question about the meaning
of the Federal Rules of Civil Procedure in a case in which it may
turn out not to be necessary for us to decide that question at
all.18
18 The majority does undertake an extensive analysis of
whether the opt-ins in an FLSA collective action are party-
plaintiffs who can appeal a ruling denying certification of a
collective action on their behalf. See Campbell v. City of Los
Angeles, 903 F.3d 1090, 1104-06 (9th Cir. 2018); Mickles v. Country
Club Inc., 887 F.3d 1270, 1278 (11th Cir. 2018). But, I do not
see how those precedents are relevant to the question that is my
concern, which pertains to whether we should be entertaining this
interlocutory appeal when no motion for certification has even
been filed, let alone denied. I do also note that even if the
majority is right to endorse the precedents that it relies on about
the party-plaintiff status of opt-ins, the wait-and-see approach
that I favor avoids the oddity of resolving on appeal the merits
of a motion to dismiss claims that belong to individuals who are
not even listed in the case's caption as parties to the appeal.
My concern with our choosing to resolve such a motion in this odd
posture is heightened by the fact that nothing in Day &
Zimmermann's briefing to this Court indicates that Day & Zimmermann
is seeking to dismiss Waters's collective action claim itself (even
in part), as the briefing by Day & Zimmermann advances arguments
for dismissing only the claims of the individual opt-ins, none of
which are Waters's claims alone. Cf. Molock, 952 F.3d at 300. In
any event, insofar as Day & Zimmermann could be understood to be
seeking to dismiss not those claims directly but only Waters's
collective action claim insofar as it is brought on the opt-ins'
behalf, the appeal remains interlocutory and thus still should be
dismissed for all the reasons that I have given.
- 50 -