Roy v. FedEx Ground Package Sys., Inc. (353 F. Supp. 3d 43, 2018)

KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE

I. Introduction

In this proposed nationwide collective action, the remaining plaintiffs, Jordan Roy ("Roy") and Justin Trumbull ("Trumbull") (collectively, "Plaintiffs"), each assert a single claim against the defendant, FedEx Ground Package System, Inc. ("Defendant" or "FedEx Ground"), for unpaid overtime pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1) (Dkt. No. 1). Presently before the court is Plaintiffs' contested motion for conditional class certification pursuant to 29 U.S.C. § 216(b) (Dkt. No. 6). Specifically, Plaintiffs seek to notify "all similarly situated FedEx delivery drivers around the country" concerning their right to opt into the suit (id. ). See 29 U.S.C. § 216(b). After consideration of the parties' submissions and hearing on October 2, 2018, the court grants Plaintiffs' motion for conditional certification in part, and denies it in part for the reasons that follow.

II. Background

The background facts are stated in the court's earlier decision:

FedEx Ground, a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania, is a business engaged in business and residential ground package delivery services. FedEx Ground provides ground service to 100% of the continental United States population. In 2016, FedEx Ground had revenues in excess of $16 billion.

Plaintiffs Roy and Trumbull are both residents of Massachusetts .... FedEx Ground employed Plaintiffs as full-time delivery drivers through intermediary entities that FedEx Ground calls "independent service providers," or "ISPs." Roy worked for FedEx Ground from February 2015 to January 2017. Trumbull worked for FedEx Ground from late 2015 to February 2017.

...

Plaintiffs were eligible to receive overtime and regularly worked over forty hours per week delivering packages for FedEx Ground. Yet, Plaintiffs were not paid time-and-a-half their regular rate for those hours.

(Dkt. No. 41) (footnote omitted). Additional details will be provided in the analysis of the issues.

Plaintiffs allege that they are entitled to conditional certification because all drivers to whom they seek to issue notice are similarly situated (Dkt. No. 6). FedEx Ground opposes the motion on two grounds: (1) the court lacks personal jurisdiction over non-Massachusetts drivers; and (2) only Roy, Trumbull, and other drivers employed by the same ISP are similarly situated. Each of Defendant's objections will be addressed in turn.

III. Analysis

A. The court lacks personal jurisdiction over non-Massachusetts plaintiffs.

Relying on Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., San Francisco Cty. , --- U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) (hereinafter Bristol-Myers ), FedEx Ground argues that Plaintiffs are barred from asserting claims on behalf of putative collective action members who worked outside Massachusetts because those claims do not relate to FedEx Grounds' contacts with Massachusetts (Dkt. No. 55 at 2-6). Plaintiffs maintain that Bristol-Myers' holding does not apply to opt-in plaintiffs in FLSA collective actions (Dkt. No. 57 at 2-8). The court concludes that the claims of potential opt-in out-of-state employees do not provide the court with a basis to exercise personal jurisdiction over FedEx Ground as to such claims.

"It is axiomatic that, '[t]o hear a case, a court must have personal jurisdiction over the parties, "that is, the power to require the parties to obey its decrees.' " " Hannon v. Beard , 524 F.3d 275, 279 (1st Cir. 2008) (alteration in original) (quoting Daynard v. Ness, Motley, Loadholt, Richardson, & Poole, P.A. , 290 F.3d 42, 50 (1st Cir. 2002) ). Consequently, the question of personal jurisdiction must be decided before the court "reach[es] the merits of a case ...." United States v. Swiss Am. Bank, Ltd. , 191 F.3d 30, 46 (1st Cir. 1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ).

"When a court's power to exercise personal jurisdiction over a defendant is challenged, the plaintiff bears the burden of establishing that the exercise of such jurisdiction is proper." Gulf Oil Ltd. P'ship v. Petroleum Mktg. Grp., Inc. , 308 F.Supp.3d 453, 457 (D. Mass. 2018) (citing A Corp. v. All Am. Plumbing, Inc. , 812 F.3d 54, 58 (1st Cir. 2016) ). "Under the commonly used 'prima facie' approach, a court considers 'whether [plaintiff] has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.' " Id. (quoting A Corp. , 812 F.3d at 58 ). "A court 'must accept [plaintiff's] properly documented evidentiary proffers as true and construe them in the light most favorable to [its] jurisdictional claim.' " Id. (second alteration in original) (quoting A Corp. , 812 F.3d at 58 ). "However, the plaintiff is only entitled to credit for assertions that are supported by specific evidence, not for conclusory or unsupported allegations from its pleadings." Id. (citing Platten v. HG Berm. Exempted Ltd. , 437 F.3d 118, 134 (1st Cir. 2006) ). "Allegations in legal memoranda alone are 'insufficient ... to establish jurisdictional facts.' " Id. (alteration in original) (quoting Barrett v. Lombardi , 239 F.3d 23, 27 (1st Cir. 2001) ).

"Personal jurisdiction over defendants in federal question cases [such as this] depends on meeting the due process requirements of the Fifth Amendment and making service of process under Federal Rule of Civil Procedure 4(k)." McCarthy v. Waxy's Keene, LLC, Civil No. 16-cv-122-JD, 2016 WL 4250290, at *2 (D.N.H. Aug. 10, 2016) (citing U.S. v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618 (1st Cir. 2001) ). See BNSF Ry. Co. v. Tyrrell, --- U.S. ----, 137 S.Ct. 1549, 1556, 198 L.Ed.2d 36 (2017) ("[A]bsent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction."). "[S]ervice of process must ... be grounded in a federal statute or rule." Wang v. Schroeter , Civil Action No. 11-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011) (citing Swiss Am. Bank, Ltd. , 274 F.3d at 618 ). Where, as here, nationwide service of process is not authorized by the statute -- the FLSA -- "service is effective only if the defendant is subject to jurisdiction in the forum state." McCarthy, 2016 WL 4250290, at *2 (citing Fed. R. Civ. P. 4(k)(1) ). See Aviles v. Kunkle , 978 F.2d 201, 204 (5th Cir. 1992) (if Congress did not provide for nationwide service of process, it cannot be inferred) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 106, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) ). "To make that showing, the plaintiffs must establish that the defendants meet the requirements of the forum state's long-arm statute." McCarthy, 2016 WL 4250290, at *2 (citing Fed. R. Civ. P. 4(k)(1)(A) ). Because the Massachusetts long-arm statute "imposes constraints on personal jurisdiction that go beyond those imposed by the Constitution[,] [the court] must ... find sufficient contacts between the defendant and the forum state to satisfy both the Massachusetts long-arm statute and the Constitution." Nowak v. Tak How Invs, Ltd. , 94 F.3d 708, 712 (1st Cir. 1996) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995) ); see also SCVNGR, Inc. v. Punchh, Inc. 478 Mass. 324, 85 N.E.3d 50, 56 n.9 (2017) (clarifying that Massachusetts' long-arm statute's reach is not coextensive with what due process allows). This court previously analyzed the Massachusetts long-arm statute and the Due Process clause and determined that it had personal jurisdiction over the named plaintiffs Roy and Trumbull, who lived and worked in Massachusetts at the relevant time, but did not have personal jurisdiction over Plaintiff Sullivan-Blake, who resided and worked in Texas (Dkt. No. 41).

Because FedEx Ground is a Delaware corporation with its principal place of business in Pennsylvania, there is no dispute that Massachusetts courts do not have general jurisdiction. See Daimler AG v. Bauman , 571 U.S. 117, 137, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). The court's analysis addresses specific jurisdiction over the claims of potential nonresident opt-in plaintiffs. "In order for a ... court to exercise specific jurisdiction, 'the suit ' must 'aris[e] out of or relat[e] to the defendant's contacts with the forum .' " Bristol-Myers, 137 S.Ct. at 1780 (quoting Daimler , 571 U.S. at 127, 134 S.Ct. 746 ) (alterations in original) (internal quotation marks omitted). See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (specific jurisdiction may be established over a defendant who "has 'purposefully directed' his activities at residents of the forum and the litigation results from alleged injuries that 'arise out of or relate to' those activities.") (citation omitted) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on "the relationship among the defendant, the forum, and the litigation.' " " Walden v. Fiore , 571 U.S. 277, 283-84, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (quoting Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ). "[T]he defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being hauled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). "For this reason, 'specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.' " Bristol-Myers, 137 S.Ct. at 1780 (internal quotation marks omitted) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ).

To establish specific personal jurisdiction over a defendant that complies with due process, a plaintiff is required to show that:

(1) its claim directly arises out of or relates to the defendant's forum activities; (2) the defendant's forum contacts represent a purposeful availment of the privilege of conducting activities in that forum, thus invoking the benefits and protections of the forum's laws and rendering the defendant's involuntary presence in the forum's courts foreseeable; and (3) the exercise of jurisdiction is reasonable.

Plixer Int'l, Inc. v. Scrutinizer GmbH , 905 F.3d 1, 7 (1st Cir. 2018) (citing A Corp. , 812 F.3d at 59 ). All three minimum contact requirements must be met in order for plaintiff to establish specific jurisdiction over a defendant. See id ; Pushor v. Mount Washington Observatory, Inc. , Docket No. 2:17-cv-354-NT, 2018 WL 3487579, at *3 (D. Me. May 17, 2018), reconsideration denied, Docket No. 2:17-cv-354-NT, 2018 WL 3478892 (D. Me. July 19, 2018) ("If the plaintiff proceeds under a specific jurisdiction theory, the court must be satisfied that all three prongs are met.").

In Bristol-Myers , the Court addressed the relatedness requirement in the context of whether the California state courts had specific jurisdiction over the tort claims of nonresident plaintiffs.

[A] group of more than 600 plaintiffs, the majority of whom were not California residents, brought a products liability action against Bristol-Myers Squibb ("BMS"), a large pharmaceutical company incorporated in Delaware and headquartered in New York, in California state court. The plaintiffs sought to recover under California law for personal injuries allegedly resulting from the plaintiffs' use of Plavix, a drug manufactured by BMS. Reversing the California Supreme Court, the Court held that California courts did not have specific jurisdiction to entertain the nonresidents' claims against BMS. The Court noted that, under "settled principles" of specific jurisdiction, "for a court to exercise specific jurisdiction over a claim, there must be an 'affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State [and is therefore subject to the State's regulation].' " [ Bristol-Myers ,] 137 S.Ct. at 1781 [first alteration in original] (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ). The Court found that connection to be lacking with respect to the nonresidents' claims where the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. Id. "The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California - and allegedly sustained the same injuries as did the nonresidents - does not allow the State to assert specific jurisdiction over the nonresidents' claims." Id. What was needed - and what was missing - was a "connection between the forum and the specific claims at issue." Id.

(Dkt. No. 41).

FedEx Ground contends that Bristol-Myers precludes the court from exercising specific jurisdiction over the FLSA claims of unnamed plaintiffs employed outside Massachusetts because "opt-ins in an FLSA case are individually joined party plaintiffs, consistent with the nature of [FLSA] actions as procedurally more akin to mass actions than class actions" (Dkt. No. 55 at 2, 4). Plaintiffs, on the other hand, ask the court to adopt the reasoning of the "majority of its sister courts around the country" that have rejected the application of Bristol-Myers to class or collective actions (Dkt. No. 57 at 3). Plaintiffs' argument is two-pronged. First, they rely on the language in the Court's majority opinion stating that it left "open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court" as apply to a state court. Bristol-Myers , 137 S.Ct. at 1784. In addition, Plaintiffs distinguish Bristol-Myers on procedural grounds: it was a mass tort suit brought in state court asserting state law claims, as opposed to a federal action filed in federal court asserting federal claims (Dkt. No. 57 at 2-8). Notwithstanding these distinctions, the court concludes that " Bristol-Myers applies to FLSA claims, in that it divests courts of specific jurisdiction over the FLSA claims of non-[Massachusetts employed] plaintiffs against [FedEx Ground]." Maclin v. Reliable Reports of Tex., Inc. , 314 F.Supp.3d 845, 850 (N.D. Ohio 2018).

Although Bristol-Myers addressed constraints on personal jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment, see Bristol-Myers , 137 S.Ct. at 1779, Plaintiffs' reliance on Fifth Amendment Due Process is unavailing. Plaintiffs correctly point out that personal jurisdiction in federal question cases is governed by the Fifth Amendment's Due Process Clause, which "requires only that defendants have minimum contacts with the United States as a whole rather than with a particular state." Wang v. Schroeter , Civil Action No. 11-10009-RWZ, 2011 WL 6148579, at *4 (D. Mass. Dec. 9, 2011) (citing Swiss Am. Bank, Ltd. , 274 F.3d at 618 ). However, because the FLSA does not authorize nationwide service of process, see id. at *4 n.12, "this [c]ourt looks to [Massachusetts] law and the Due Process Clause of the Fourteenth Amendment for the applicable limits on its exercise of personal jurisdiction." Mussat v. IQVIA, Inc. , Case No. 17 C 8841, 2018 WL 5311903, at *4 (N.D. Ill. Oct. 26, 2018) (citing Walden , 571 U.S. at 283, 134 S.Ct. 1115 ). See Crowe v. Harvey Klinger, Inc. , 277 F.Supp.3d 182, 189 (D. Mass. 2017) (citing Sawtelle, 70 F.3d at 1387 ). Consequently, the Fifth Amendment does not dictate the parameters of due process in this case. See Maclin , 314 F.Supp.3d at 850-51 ("[T]he court cannot envisage that the Fifth Amendment Due Process Clause would have any more or less effect on the outcome respecting FLSA claims than the Fourteenth Amendment Due Process Clause, and this district court will not limit the holding in Bristol-Myers to mass tort claims or state courts.").

Although at least one other court has accepted the argument, this court ultimately does not find persuasive Plaintiffs' attempt to distinguish this case from Bristol-Myers on the basis that it is an FLSA collective action in federal court. See, e.g. , Swamy v. Title Source, Inc. , No. C 17-01175 WHA, 2017 WL 5196780, at *2 (N.D. Cal. Nov. 10, 2017) (distinguishing Bristol-Myers as "a mass tort action against the defendant pharmaceutical company in California state court, alleging state claims" and declining to apply it to an FLSA collective action). As another court confronting the application of Bristol-Myers to a class action observed: "[t]he constitutional requirements of due process do[ ] not wax and wane when the complaint is individual or on behalf of a class. Personal jurisdiction in class actions must comport with due process just the same as any other case." In re Dental Supplies Antitrust Litig. , 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017). "Nothing in Bristol-Myers suggests that its basic holding is inapplicable to class actions; 'rather, the Court announced a general principle - that due process requires a "connection between the forum and the specific claims at issue.' " " Chavez v. Church & Dwight Co. , No. 17 C 1948, 2018 WL 2238191, at *10 (N.D. Ill. May 16, 2018) (quoting Greene v. Mizuho Bank, Ltd. , 289 F.Supp.3d 870, 874 (N.D. Ill. 2017) ). "That principle applies with equal force whether or not the plaintiff is a putative class representative." Greene, 289 F.Supp.3d at 874. Rather, in this court's view, "the Court's concerns about federalism suggest that it seeks to bar nationwide class actions in forums where the defendant is not subject to general jurisdiction." Chavez , 2018 WL 2238191, at *10 (citing DeBernardis v. NBTY, Inc. , Case No. 17 C 6125, 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018) ). See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc. , 301 F.Supp.3d 840, 861 (N.D. Ill. 2018) (a defendant's due process interest is the same in a mass tort action as in a class action).

District courts generally have extended the specific jurisdiction principles articulated in Bristol-Myers to the analysis of personal jurisdiction over named plaintiffs in federal class actions. "It appears that those courts agree that Bristol-Myers generally applies to bar nationwide class actions in federal court where the defendant allegedly injured the named plaintiff outside the forum." Mussat, 2018 WL 5311903, at *4 (emphasis added).See, e.g. , Lee v. Branch Banking & Tr. Co. , Civil Action No. 18-21876-Civ-Scola, 2018 WL 5633995, at *4 & n.1 (S.D. Fla. Oct. 31, 2018) (Florida's long-arm statute and Bristol-Myers were fatal to the claims of the nonresident named plaintiffs in a class action); Chernus v. Logitech, Inc. , Civil Action No.: 17-673(FLW), 2018 WL 1981481, at *6 (D.N.J. Apr. 27, 2018) (the court did not have personal jurisdiction over a nonresident named plaintiff in a putative nationwide class action where the named plaintiff's injury lacked a connection to the forum state); Greene, 289 F.Supp.3d at 874 (citing Bristol-Myers , the court dismissed the claims of a named plaintiff in a putative class action who was a nonresident of the forum state, was not injured there, and whose claims were unrelated to the defendant's contacts with the forum state notwithstanding the similarity between the nonresident named plaintiff's claims and those of the resident named plaintiff); Spratley v. FCA US LLC , 3:17-CV-0062, 2017 WL 4023348, at *7 (N.D.N.Y. Sept. 12, 2017) (applying Bristol-Myers and finding that the court lacked specific jurisdiction over the claims of out-of-state named plaintiffs who showed "no connection between their claims and Chrysler's contacts with [the forum state]"). Similarly, in the instant case, the court determined that it did not have specific jurisdiction over FedEx Ground as to the claims of the nonresident named plaintiff, Sullivan-Blake (Dkt. No. 41).

In support of their position that Bristol-Myers does not bar personal jurisdiction over FedEx Ground as to the absent collective action members, Plaintiffs rely on the dissent's observation that "[t]he Court [did] not confront the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum state seeks to represent a nationwide class of plaintiffs, not all of whom were injured there." Bristol-Myers, 137 S.Ct. at 1789 n.4 (Sotomayor, J., dissenting). Since Bristol-Myers , the district courts that have addressed the question posed by Justice Sotomayor disagree on whether Bristol-Myers extends to nonresident unnamed class or collective action members in cases where the defendant injured the named plaintiff in the forum state. See Chavez, 2018 WL 2238191, at *10 ("Whether Bristol-Myers extends to class [and collective] actions is a question that has divided [district] courts across the country."). "No Court of Appeals has engaged the question of whether [ Bristol-Myers ] requires a finding of specific personal jurisdiction with respect to unnamed members of a putative class [or collective] action suit." Knotts, 346 F.Supp.3d at 1330-31, 2018 WL 4922360, at *13. In the court's view, an analysis of the similarities between the nonresident party plaintiffs in Bristol-Myers, the out-of-forum named plaintiffs in Rule 23 class actions, and the nonresident opt-in plaintiffs in FLSA suits supports FedEx Ground's position that, even if the principles stated in Bristol-Myers do not extend to class members in class actions, they preclude this court from asserting personal jurisdiction over the claims of potential opt-in plaintiffs who do not work for FedEx Ground in Massachusetts. FedEx Ground drivers would potentially be able to bring a nationwide collective action in Delaware and Pennsylvania, "the States that have general jurisdiction" over FedEx Ground. Bristol-Myers , 137 S.Ct. at 1783. "Alternatively, the [potential opt-in] plaintiffs who are residents of a particular state ... could probably sue together in their home States." Id. One commentator has viewed the Court's comment concerning a safe forum for nationwide class actions as signaling that its recent jurisdictional decisions, including Bristol-Myers, effectively point towards an intent to limit nationwide class actions to forums with general jurisdiction over defendants. See 2 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 6.26 (5th ed. 2011-2018).

To the extent Plaintiffs rely on cases indicating that Bristol-Myers does not apply to nationwide class actions brought pursuant to Fed. R. Civ. P. 23 because personal jurisdiction over a defendant is gauged by personal jurisdiction over named plaintiffs (Dkt. No. 57 at 2-8), see, e.g. , Morgan v. U.S. Xpress, Inc. , Case No. 3:17-cv-00085, 2018 WL 3580775, at *5-6 (W.D. Va. July 25, 2018) ; In re: Chinese-Manufactured Drywall Prods. Liab. Litig. , CIVIL ACTION MDL NO. 09-2047, 2017 WL 5971622, at *12 (E.D. La. Nov. 30, 2017), there are meaningful distinctions between Rule 23 class actions and FLSA collective actions. See Prescott v. Prudential Ins. Co. , 729 F.Supp.2d 357, 359 (D. Me. 2010). " Rule 23 provides for 'opt out' class actions. FLSA [ § 216(b) ] allows as class members only those who 'opt in.' These two types of class actions are mutually exclusive and irreconcilable." LaChapelle v. Owens-Illinois, Inc. , 513 F.2d 286, 289 (5th Cir. 1975). See Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 73, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (" Rule 23 actions are fundamentally different from collective actions under the FLSA ....").

The consequences of certification highlight the distinctions between the class actions under Rule 23 and collective actions under 29 U.S.C. § 216(b). In a Rule 23 proceeding in which the class has been certified under Fed. R. Civ. P. 23(c)(1), the class is described and has independent legal status. See LaChapelle, 513 F.2d at 288 ; Bucceri v. Cumberland Farms, Inc. , Civil Action No. 15-cv-13955-IT, 2017 WL 3495693, at *2 (D. Mass. Aug. 14, 2017) ; Fed. R. Civ. P. 23(c)(1)(B). "[I]f the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has 'opted out' of the suit." LaChapelle , 513 F.2d at 288.

By contrast, under the FLSA:

[a]n action to recover the liability ... may be maintained against any employer ... 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.

29 U.S.C. § 216(b). "The sole consequence of conditional certification [under § 216(b) ] is the sending of court-approved written notice to employees who in turn become parties to a collective action only by filing written consent with the court, § 216(b)." Bucceri, 2017 WL 3495693, at *2 (emphasis added) (citation omitted) (citing Genesis Healthcare Corp. , 569 U.S. at 75, 133 S.Ct. 1523 ). Put another way, only the employees who affirmatively opt into the suit by filing their written consent are parties who are "bound or may benefit from judgment." LaChapelle , 513 F.2d at 288. " 'A collective action is thus "a fundamentally different creature than the Rule 23 class action" because "the existence of a collective action under § 216(b) [depends] on the active participation of other plaintiffs.' " " Lichy v. Centerline Commc'ns LLC , Civil Action No. 15-cv-13339-ADB, 2018 WL 1524534, at *2 (D. Mass. Mar. 28, 2018) (quoting Prescott, 729 F.Supp.2d at 362 ). See Halle v. W. Penn Allegheny Health Sys. Inc. , 842 F.3d 215, 224 (3d Cir. 2016) ("When a named plaintiff files a complaint containing FLSA collective action allegations, the mere presence of the allegations does not automatically give rise to the kind of aggregate litigation provided for in Rule 23. Rather, the existence of a collective action depends upon the affirmative participation of opt-in plaintiffs.") (citing Smith v. T-Mobile USA, Inc. , 570 F.3d 1119, 1121 (9th Cir. 2009) ; Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1259 (11th Cir. 2008) ); Cunha v. Avis Budget Car Rental, LLC, 221 F.Supp.3d 178, 181 (D. Mass. 2016) (" 'Unlike [Rule] 23 class actions, FLSA collective actions require similarly situated employees to affirmatively opt in and be bound by any judgment.' ") (citation omitted). "In other words, 29 U.S.C. § 216(b) does not truly authorize a class action: it is properly viewed as a rule of joinder under which only the individual opt-in plaintiffs have legal status, not the aggregate class of aggrieved employees." Anjum v. J.C. Penney Co. , No. 13 CV 0460(RJD)(RER), 2014 WL 5090018, at *8 (E.D.N.Y. Oct. 9, 2014) Therefore, the opt-in plaintiffs in an FLSA collective action are more analogous to the individual plaintiffs who were joined as parties in Bristol-Myers and the named plaintiffs in putative class actions than to members of a Rule 23 certified class. See Bristol-Myers , 137 S.Ct. at 1778, 1781 ; Chernus, 2018 WL 1981481, at *6 ; Maclin , 314 F.Supp.3d at 850-51 ; Greene, 289 F.Supp.3d at 874 ; Spratley , 2017 WL 4023348, at *7. By extension, Bristol-Myers requires that the defendant be subject to specific jurisdiction as to the claims of FLSA opt-in plaintiffs in putative collective actions. Similarity of claims, alone, is not sufficient to extend personal jurisdiction to out-of-state opt-in plaintiffs. See Bristol-Myers , 137 S.Ct. at 1781 ; Greene , 289 F.Supp.3d at 875.

In addition, some courts have declined to extend Bristol-Myers to nationwide class actions on the ground that "a class action suit must satisfy due process procedural safeguards that do not exist in mass tort actions." See Knotts, 346 F.Supp.3d at 1333, 2018 WL 4922360, at *15. Here, too, there are relevant distinctions between Rule 23 class actions and FLSA collective actions. Specifically, "for a case to qualify for class action treatment, it needs to meet the additional due process standards for class certification under Rule 23 - numerosity, commonality, typicality, adequacy of representation, predominance and superiority." In re: Chinese-Manufactured Drywall Prod. Liab. Litig. , 2017 WL 5971622, at *14 (citing Fed. R. Civ. P. 23(a) & (b) ). See Torrezani v. VIP Auto Detailing, Inc. , 318 F.R.D. 548, 553 (D. Mass. 2017) (stating the four requirements of a proposed class under Fed. R. Civ. P. 23(a) : numerosity, commonality, typicality, and adequacy). Courts have found that Rule 23's "stringent" class action standard provides adequate due process protection to defendants and that the same "due process safeguards" are not present in the mass tort action context. Molock, 297 F.Supp.3d at 126. By contrast to Rule 23, most courts do not require a party seeking conditional certification of a collective action under § 216(b) to demonstrate the Rule 23 requirements. See Puglisi v. TD Bank, N.A. , 998 F.Supp.2d 95, 99 (E.D.N.Y. 2014) ; Prescott, 729 F.Supp.2d at 365 n.8 ("A few trial courts have employed Rule 23's criteria and procedures in determining whether to certify an FLSA collective action, but the vast majority of courts have concluded that Congress did not intend the FLSA to incorporate all the requirements of Rule 23....") (citation omitted) (collecting cases). Instead, the representative plaintiff must show only that other employees are "similarly situated." 29 U.S.C. § 216(b). At least one court in this district has indicated that this is "a lesser showing than that required by Rule 23." Prescott , 729 F.Supp.2d at 359. See Yayo v. Museum of Fine Arts, Civil Action No. 13-11318-RGS, 2014 WL 2895447, at *3 (D. Mass. June 26, 2014) (same, quoting Prescott ). Because the FLSA standard for certification of a collective action has been held to be less stringent than that of Rule 23, the due process protections for defendants are dissimilar. See Molock , 297 F.Supp.3d at 126 ; In re: Chinese-Manufactured Drywall Prods. Liab. Litig. , 2017 WL 5971622, at *14-16 ; Prescott , 729 F.Supp.2d at 359. Therefore, the cases that have declined to extend Bristol-Myers to class actions on the basis of the due process safeguards inherent in Rule 23's requirements are distinguishable.

Here, under the "settled principles regarding specific jurisdiction" articulated in Bristol-Myers, Plaintiffs are required to demonstrate that FedEx Ground has sufficient minimum contacts with Massachusetts to satisfy the constitutional guarantee of due process regarding the claims of non-Massachusetts opt-in plaintiffs. Bristol-Myers , 137 S.Ct. at 1781. See Plixer Int'l, Inc. , 905 F.3d at 7 (citing A Corp. , 812 F.3d at 59 ). As noted earlier, personal jurisdiction is wanting if one of the three minimum contact criteria is not satisfied. See id. (citing A Corp. , 812 F.3d at 59 ). Because Plaintiffs cannot satisfy the relatedness requirement for the claims of the FedEx Ground drivers who did not work in Massachusetts, due process does not permit the court to exercise specific jurisdiction over Defendant regarding their claims.

"The first prong of the [due process] test, regarding 'relatedness,' 'serves the important function of focusing the court's attention on the nexus between a plaintiff's claim and the defendant's contacts with the forum.' " Cossart v. United Excel Corp. , 804 F.3d 13, 20 (1st Cir. 2015) (quoting Sawtelle, 70 F.3d at 1389 ). "The relatedness inquiry 'is to be resolved under "a flexible, relaxed standard.' " " Crowe , 277 F.Supp.3d at 190 (quoting Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc. , 825 F.3d 28, 35 (1st Cir. 2016) ). "In evaluating relatedness, the court is mindful that '[q]uestions of specific jurisdiction are always tied to the particular claims asserted.' " Id. (quoting Phillips Exeter Acad. v. Howard Phillips Fund, Inc. , 196 F.3d 284, 289 (1st Cir. 1999) ). " '[T]he defendant's in-state conduct must form an important, or [at least] material, element of proof in the plaintiff's case.' " Phillips v. Prairie Eye Ctr. , 530 F.3d 22, 27 (1st Cir. 2008) (second alteration in original) (quoting Harlow v. Children's Hosp. , 432 F.3d 50, 61 (1st Cir. 2005) ).

In the instant case, Plaintiffs have asserted a single claim for FedEx Ground's alleged violation of the FLSA by its failure to pay overtime to drivers of vehicles with gross weights of less than 10,001 pounds who were hired and paid by ISPs and worked in excess of forty hours per week (Dkt. No. 1). Under FedEx Ground's operational structure, drivers reported to one local terminal to pick-up the packages that they were responsible for delivering that day (Dkt. No. 6-5). For example, Plaintiffs Roy and Trumbull picked up packages at FedEx Ground's Springfield Terminal in Chicopee, Massachusetts (Dkt. No. 6-8 ¶ 4; Dkt. No. 6-10 ¶ 4; Dkt. No. 55-5 ¶ 2). Angel Sullivan-Blake retrieved packages from three FedEx terminals in Texas during the periods of her employment as a FedEx Ground driver: Webster (November 2015 to June 2016); Sugar Land (November 2016 to February 2017); and North Houston (beginning in July 2017) (Dkt. No. 6-9 ¶¶ 3-5). Similarly, Horace Claiborne's deliveries were limited to the areas surrounding the terminals in Virginia and North Carolina to which he reported (Dkt. No. 57-1 ¶¶ 2, 4, 12, 13). Because Plaintiffs cannot demonstrate a nexus between FedEx Ground's activities in Massachusetts and the payment of drivers who picked up packages from terminals outside Massachusetts, Plaintiffs cannot satisfy the relatedness requirement necessary to establish personal jurisdiction. See Bristol-Myers, 137 S.Ct. at 1780-81 ; United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp. , 960 F.2d 1080, 1089 (1st Cir. 1992) (to satisfy the relatedness requirement, "the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities."). Thus, permitting Plaintiffs to bring a nationwide action in Massachusetts would violate Defendant's due process rights. See Mussat , 2018 WL 5311903, at *5 (where nonresident class members' claims did not relate to the defendant's contacts with the forum state, "exercising specific jurisdiction over [the defendant] with respect to the nonresidents' claims would violate [the defendant's] due process rights"); Maclin , 314 F.Supp.3d at 850 (finding that Bristol-Myers divested the court of specific jurisdiction over the FLSA claims of nonresident plaintiffs due to their lack of a connection to the forum state).

The failure to meet the relatedness requirement dooms Plaintiffs' request to issue notice of an FLSA collective action to FedEx Ground drivers who did not work in Massachusetts. Accordingly, to the extent Plaintiffs seek to issue notice of the collective action to FedEx Ground drivers who worked outside Massachusetts, the motion is denied.

B. The Massachusetts FedEx Ground drivers are similarly situated.

In view of the determination that the court's personal jurisdiction over FedEx Ground is limited to the claims of potential plaintiffs who were employed as drivers in Massachusetts, the remaining question posed by Plaintiffs' motion is whether notice of the FLSA collective action should be issued to all similarly situated FedEx delivery drivers in Massachusetts. Under the lenient standard applied to a motion for conditional certification, Plaintiffs have made the required showing that they are similarly situated to the members of the putative class of delivery drivers hired and paid by ISPs in Massachusetts. The evidence before the court is sufficient at this stage of the litigation to demonstrate the possibility that delivery drivers were subjected to FedEx Ground's policy of contracting with ISPs to provide delivery services while maintaining control of the drivers' work schedules and employment conditions and failing to pay overtime compensation to drivers who worked in excess of forty hours per week.

1. FedEx Ground's Operations and Business Model

Descriptions of FedEx Ground's two prior business models and its current ISP model are useful in analyzing the question of whether notice should be issued to putative collective action members who are employed in Massachusetts. By way of background, one court observed: "FedEx has changed its business model vis-à-vis ... delivery drivers several times over the past decade in response to numerous lawsuits alleging that FedEx committed violations of federal and state wage and hour laws by misclassifying the drivers as independent contractors." Hodzic v. Fedex Package Sys., Inc. , Civil Action No. 15-956, 2016 WL 6248078, at *1 (W.D. Pa. Oct. 26, 2016).

FedEx Ground's "independent contractor" model is described in Scovil v. FedEx Ground Package Sys., Inc. , 811 F.Supp.2d 516 (D. Me. 2011). According to the affidavits of six drivers who delivered FedEx Ground's packages in Maine using trucks weighing less than 10,001 pounds, the drivers were "required to own a vehicle that prominently display[ed] the FedEx logo, to wear FedEx uniforms, and to report to a FedEx terminal each morning to pick up their packages." Id. at 519. "Each driver was required to comply with numerous rules and specifications governing the truck, the signage on the truck, uniform standards, grooming standards, and other such matters." Id. at n.7. The drivers reported to FedEx Ground's terminal managers. Id. at 520. At the terminal, FedEx Ground's employees or drivers loaded the trucks of the alleged independent contractor-delivery drivers. Id. at 519. "After the drivers' trucks were loaded with packages for the day, the drivers would scan each package into a FedEx tracking system, and FedEx would also utilize a scanner to keep track of each package and the whereabouts of each driver.... The deliveries had to be made according to FedEx specifications ...." Id. at 520 n.8. "Each driver was required to deliver all the packages FedEx put on the truck on a given day ... with no discretion by the driver over whether or not to deliver a package on a particular day." Id. at n. 9. According to the Operator Agreements that covered all delivery drivers, they were paid "per package delivered" and had "no ability to negotiate the package delivery rates with the customers to whom the packages were being delivered, or the individuals who were sending the packages." Id. at 520 & n.9. Finding that the plaintiff-drivers "were subject to a common FedEx policy, namely alleged misclassification of employment status," the court granted the drivers' motion for conditional certification of the FLSA collective action. Id. at 520.

According to the Hodzic case, in May 2010, FedEx Ground began replacing its independent contractor business model with an "all-incorporated" model, which was the subject of the court's decision in Hodzic. Under this model, FedEx entered into detailed Standard Operating Agreements with "authorized representatives of incorporated businesses, i.e. 'contracted service providers,' to provide delivery driver services for its Ground and Home Delivery division." Hodzic, 2016 WL 6248078, at *1-2. The contracted service providers were "effectively owner/operators with a single work area or delivery route serviced by a single employee-driver." Id. at *1. Some contractors were not delivery drivers. Id. Instead, they managed the businesses and hired others to drive. Id. FedEx considered all delivery drivers to be employees of the contracted service providers, not its employees. Id. at *1, *3. According to the Standard Operating Agreements, which were the same nationwide, the contracted service providers were responsible for paying overtime compensation to their employees. Id. at *1-2, *3.

The plaintiffs in Hodzic signed Standard Operating Agreements on behalf of their respective companies, were assigned service areas that were served by the FedEx terminal in Sewickley, Pennsylvania, and provided FedEx package delivery services. See id. at *2-3. In compliance with the Standard Operating Agreements,

[plaintiffs] purchased trucks with gross vehicle weights below 10,001 pounds; affixed the required FedEx logos on same; wore FedEx uniforms that they were required to purchase while making deliveries; carried FedEx scanners to track packages; picked up and delivered packages in accordance with their respective agreements during the relevant time-frame;

and uploaded scanner data to FedEx's system as required.

Id. at *3.

The plaintiffs alleged that FedEx terminal employees controlled their day-to-day operations, including their work hours. See id. The drivers worked five or six days a week and had to arrive at the terminal at around 6:00 A.M. or 7:00 A.M. See id. FedEx employees "squeeze[d] numerous packages" onto one plaintiff's fully loaded truck and required him to wait for late packages before permitting him to leave the terminal. Id. Plaintiffs "were not able to decline to deliver packages or to negotiate the delivery fee for such parcels." Id. According to plaintiffs, they worked fifty hours per week, were paid on a per delivery basis, and were not paid overtime for hours worked in excess of forty. See id. Finding that plaintiffs demonstrated that drivers at the Sewickley terminal were subject to a FedEx policy requiring them to work in excess of forty hours per week without being compensated for overtime, the court approved the issuance of notice to drivers who delivered packages from that terminal. See id. at *7, *9.

More recently, the ISP model has apparently replaced the all-incorporated model. See id. at *2. In its Securities and Exchange Commission ("SEC") filing for the fiscal year ending May 31, 2016 submitted by Plaintiffs in support of their conditional certification motion, "FedEx Ground announced plans to implement the ... ISP agreement throughout the entire U.S. pickup and delivery network" (Dkt. No. 6-6 at 19). The transition to the ISP model has taken place on a state-by-state basis. See Hodzic , 2016 WL 6248078, at *2. As of May 31, 2016, service providers in twenty-four states were operating under, or transitioning to, the ISP agreement (Dkt. No. 6-6 at 19). Under the ISP model, "FedEx contracts with ISPs who act as corporate entities and employers (i.e. 'John Smith, Inc.'). The contractors hire and supervise employees to meet the service objectives. FedEx also offers an 'optional brand promotion program' through which ISPs can get FedEx logos on their trucks and uniforms." Gennell v. FedEx Ground Package Sys., Inc. , No. 05-cv-145-PB, 2013 WL 4854362, at *7 n.5 (D.N.H. Sept. 10, 2013).

Defendant included in the court's record the agreement between FedEx and the ISP that hired and paid Roy and Trumbull (Dkt. No. 55-7). According to this contract, the ISP's personnel were not "treated as or considered to be [FedEx Ground's] employees, directly, indirectly, or jointly for any purpose ..." (Dkt. No. 55-7 at 6). The ISP agreed to

assume sole responsibility for payroll deductions and maintenance of payroll and employment records, and for compliance with Applicable Law, including, without limitation, wage payment, final payment of wages, required withholdings from wages, deductions, overtime, and rest and meal periods, and, at the request of [FedEx Ground], provide evidence of such compliance.

(Dkt. No. 55-7 at 6).

2. Affidavits of Massachusetts Delivery Drivers

Plaintiffs support their motion for conditional certification with the affidavits of named Plaintiffs Roy (Dkt. No. 6-8) and Trumbull (Dkt. No. 6-10), who were full-time delivery drivers assigned to the Springfield Terminal (Dkt. No. 6-8 ¶¶ 2, 4; Dkt. No. 6-10 ¶¶ 2, 4; Dkt. No. 55-5 ¶ 2). The affiants indicated that they "had to be hired by an ISP" in order to deliver FedEx packages (Dkt. No. 6-8 ¶ 2; Dkt. No. 6-10 ¶ 2). According to the affidavit of Thomas Pierce, a FedEx Ground Senior Manager in Contractor Relations, eighty ISPs contracted to deliver FedEx Ground's packages in Massachusetts and eight ISPs contracted with FedEx Ground to provide package delivery service at the Springfield Terminal (Dkt. No. 55-1 at ¶ 21).

In their affidavits, Roy and Trumbull averred that all delivery drivers who they observed at the Springfield Terminal were paid by various ISPs, but all shared similar working conditions and responsibilities irrespective of which ISP paid them (Dkt. 6-8 ¶¶ 7, 8; Dkt. No. 6-10 ¶¶ 6, 7, 8). Roy and Trumbull stated that they and most other drivers drove vehicles with gross weights of less than 10,001 pounds that bore the FedEx Ground color scheme and logo (Dkt. No. 6-8 ¶¶ 3, 8; Dkt. No. 6-10 ¶¶ 3, 7). The affiants were required to wear FedEx Ground uniforms and all other drivers wore them (Dkt. No. 6-8 ¶¶ 3, 8; Dkt. No. 6-10 ¶¶ 3, 6, 7). FedEx Ground's terminal manager ensured that all drivers met FedEx Ground's uniform and appearance standards (Dkt. No. 6-10 ¶¶ 19-21).

Roy and Trumbull reported to the Springfield Terminal between 6:00 A.M. and 7:00 A.M. (Dkt. No. 6-8 ¶ 4; Dkt. No. 6-10 ¶ 4). FedEx Ground package handlers set out the packages each driver was responsible for delivering each day (Dkt. No. 6-8 ¶ 9; Dkt. No. 6-10 ¶ 9). At times, Roy, Trumbull, and the other drivers they observed had to wait up to two hours for the FedEx package handlers to finish unloading tractor-trailers, sorting packages, and assigning them to delivery drivers (Dkt. No. 6-8 ¶ 10; Dkt. No. 6-10 ¶ 10). FedEx Ground managers oversaw the drivers' loading of their vehicles (Dkt. No. 6-10 ¶ 19). Trumbull witnessed an ISP employee fire a driver "on the spot" after a FedEx Ground manager observed the driver throw a package (Dkt. No. 6-10 ¶¶ 20, 21).

FedEx Ground provided scanners that drivers were required to use while loading their vehicles and making deliveries (Dkt. No. 6-8 ¶¶ 11, 15; Dkt. No. 6-10 ¶¶ 11, 15). When the drivers finished loading their assigned packages into their vehicles, they were required to "close out" the scanners to confirm that they had loaded all their assigned packages (Dkt. No. 6-8 ¶ 12; Dkt. No. 6-10 ¶ 12). If a driver had not loaded an assigned package, he was required to report the missing package to the FedEx Ground manager and wait until the manager either located the package or approved the driver's departure from the terminal without it (Dkt. No. 6-8 ¶¶ 12, 13; Dkt. No. 6-10 ¶¶ 12, 13).

FedEx Ground provided a printed delivery manifest to each driver after he "closed out" the scanner for the loaded packages (Dkt. No. 6-8 ¶ 14; Dkt. No. 6-10 ¶ 14). When a driver delivered a package, he scanned it with the FedEx Ground-issued scanner and entered a code in order to track the delivery time and the type of delivery (Dkt. No. 6-8 ¶ 15; Dkt. No. 6-10 ¶ 15). The scanner indicated whether a signature was required for delivery of the package (Dkt. No. 6-8 ¶ 16; Dkt. No. 6-10 ¶ 16). If a signature was required and the customer was not at home, the driver was not permitted to deliver the package (id. ). After Roy and Trumbull left the terminal, FedEx Ground employees "frequently"

called them with changes to delivery instructions or directions to return to the terminal to pick up another package for delivery (Dkt. No. 6-8 ¶ 17; Dkt. No. 6-10 ¶ 17). FedEx Ground, not the ISP, received customers' complaints or comments about drivers' service (Dkt. No. 6-8 ¶ 18; Dkt. No. 6-10 ¶ 18).

Roy and Trumbull indicated that many of the drivers at the Springfield Terminal were hired and paid by ISPs different from the ISP that hired and paid them (Dkt. No. 6-8 ¶ 8; Dkt. No. 6-10 ¶ 7). The various ISPs for whom the drivers worked paid them either a flat per-stop rate or a flat daily rate (Dkt. No. 6-8 ¶ 20; Dkt. No. 6-10 ¶ 23). Roy, Trumbull, and "many" drivers they observed at the Springfield Terminal usually worked more than forty hours per week (Dkt. No. 6-8 ¶¶ 4, 5; Dkt. No. 6-10 ¶ 4). However, Plaintiffs and the drivers to whom they spoke were not compensated for overtime (Dkt. No. 6-8 ¶¶ 19, 20; Dkt. No. 6-10 ¶¶ 22, 23).

3. Legal Standard

The FLSA regulates the payment of wages and overtime compensation between an employer and its employees. See 29 U.S.C. §§ 206, 207. The statute "requires employers to pay their employees at least 'one and one-half times the regular rate' for any hours worked in excess of a forty-hour workweek." Marzuq v. Cadete Enters., Inc. , 807 F.3d 431, 435 (1st Cir. 2015) (quoting 29 U.S.C. § 207(a)(1) ). Under the FLSA, "an 'employer' is defined as 'any person acting directly or indirectly in the interest of an employer in relation to an employee ....' " Baystate Alternative Staffing, Inc. v. Herman , 163 F.3d 668, 675 (1st Cir. 1998) (quoting 29 U.S.C. § 203(d) ). "The Act defines an 'employee' as 'any individual employed by an employer.' " Id. (quoting 29 U.S.C. § 203(e)(1) ). "The Act further states that the term 'employ' includes 'to suffer or permit to work.' " Id. (quoting § 203(g) ). The FLSA's definition of "employer" "has been interpreted expansively," Donovan v. Agnew , 712 F.2d 1509, 1510 (1st Cir. 1983), to include "several simultaneous employers, each responsible for compliance with the Act." Baystate Alternative Staffing, Inc. , 163 F.3d at 675 (citing Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) ; Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1469-70 (9th Cir. 1983) ); see also 29 C.F.R. § 791.2(a) ("[I]f the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek."). Plaintiffs seeking certification of a putative class "must demonstrate that 'employees outside of the work location for which the employee has provided evidence' were similarly affected by the employer's policies." Travers v. JetBlue Airways Corp. , Civil Action No. 08-10730-GAO, 2010 WL 3835029, at *2 (D. Mass. Sept. 30, 2010).

As discussed earlier, § 216(b) of the FLSA "permits individuals to bring a lawsuit for lost wages 'either individually or as part of a collective action comprising "other employees similarly situated.' " " Lichy , 2018 WL 1524534, at *2 (quoting Prescott , 729 F.Supp.2d at 362 ). "Although the FLSA does not provide for court-ordered notice of a pending collective action, the Supreme Court has held that 'district courts have discretion ... to implement 29 U.S.C. 216(b)... by facilitating notice to potential plaintiffs.' " Prescott, 729 F.Supp.2d at 362-63 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ). "The court may also facilitate notice by allowing or ordering discovery designed to identify employees within the similarly situated class." Rosselló v. Avon Prods., Inc. , Civil No. 14-1815(JAG/BJM), 2015 WL 3890403, at *3 (D.P.R. June 24, 2015), report and recommendation adopted, Civil No. 14-1815(JAG), 2015 WL 5693018 (D.P.R. Sept. 28, 2015) (citing Hoffmann-La Roche, 493 U.S. at 170, 110 S.Ct. 482 ).

"The general practice of district courts within the First Circuit ... has been to adopt a 'two-tiered' approach to certification of collective actions under the FLSA." Johnson v. VCG Holding Corp. , 802 F.Supp.2d 227, 233 (D. Me. 2011). See Prescott, 729 F.Supp.2d at 363-64 ("[T]he certification of a collective action 'typically proceed[s] in two stages' "); O'Donnell v. Robert Half Int'l, Inc. , 429 F.Supp.2d 246, 249 (D. Mass. 2006) (applying "a 'two-tiered' approach to determining whether named plaintiffs and putative class members are similarly situated"); Wise v. Patriot Resorts Corp. , C.A. No. 04-30091-MAP, 2006 WL 6110885, at *1 (D. Mass. Feb. 15, 2006) (using the "two-step process"); Kane v. Gage Merch. Servs., Inc. , 138 F.Supp.2d 212, 214 (D. Mass. 2001) (same). "Under the two-tiered framework, '[t]he first stage determines whether notice should be given to potential collective action members and usually occurs earlier in a case, before substantial discovery, "based only on the pleadings and any affidavits which have been submitted.' " " Johnson , 802 F.Supp.2d at 233-34 (alteration in original) (quoting Prescott, 729 F.Supp.2d at 363-64 ). Courts also "regularly consider additional evidence, such as job descriptions [and] recorded corporate policies ...." Rosselló , 2015 WL 3890403, at *3 n.5. "The second stage occurs at the completion of discovery when the employer may move to decertify the class action." Johnson, 802 F.Supp.2d at 234. "At the second stage, the [c]ourt is tasked with making 'a factual determination as to whether there are similarly-situated employees who have opted in.' " Id. (quoting Prescott , 729 F.Supp.2d at 363-64 ). To make this determination, " 'courts consider factors such as: 1) the disparate factual and employment settings - e.g. whether plaintiffs were employed in the same corporate department, division, and location; 2) the various defenses available to defendant which appear to be individual to each plaintiff; and 3) fairness and procedural considerations.' " Roberts v. TJX Cos. , Civil Action No. 13-cv-13142-ADB, 2017 WL 1217114, at *3 (D. Mass. Mar. 31, 2017) (quoting Trezvant v. Fid. Emp'r. Servs. Corp. , 434 F.Supp.2d 40, 45 (D. Mass. 2006) ). "Thus, the two-stage process allows the [c]ourt to have the benefit of knowing who has opted in when determining whether the plaintiffs are actually similarly situated and if the named plaintiffs are representative." Id.

4. Discussion

"At the first stage, the plaintiff 'has the burden of showing a "reasonable basis" for [his or her] claim that there are other similarly situated employees.' " Prescott , 729 F.Supp.2d at 364 (quoting Morgan , 551 F.3d at 1260 ). " 'At this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.' " Montoya v. CRST Expedited, Inc. , 311 F.Supp.3d 411, 420 (D. Mass. 2018) (quoting Lynch v. United Servs. Auto. Ass'n , 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007) ). "[T]his means ... that the court must be satisfied 'not that there has been an actual violation of law but rather [that] the proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.' " McKnight v. Honeywell Safety Prods. USA, Inc. , C.A. No. 16-132 S, 2017 WL 3447894, at *7 (D.R.I. Aug. 11, 2017) (quoting Roberts, 2017 WL 1217114, at *6 ). The standard for making the initial determination as to whether the proposed class members should receive notice "is 'fairly lenient' and 'typically results in conditional certification of the representative class.' " Cunha, 221 F.Supp.3d at 182 (quoting Trezvant , 434 F.Supp.2d at 43 ); see also Lichy , 2018 WL 1524534, at *3 ("The standard of review has been described as 'not particularly stringent,' 'not heavy,' and 'flexible.' ") (quoting Prescott , 729 F.Supp.2d at 364 ).

The term "similarly situated" is not defined by the FLSA and has not been defined by the First Circuit. See Venegas v. Glob. Aircraft Serv., Inc. , 159 F.Supp.3d 93, 106 (D. Me. 2016), appeal dismissed sub nom. Venegas v. Lufthansa Technik N. Am. Holding Corp. , No. 16-8006, 2017 WL 3595499 (1st Cir. June 30, 2017). District courts have held that "[t]he plaintiffs must 'put forth some evidence that the legal claims and factual characteristics of the class ... are similar.' " Lichy , 2018 WL 1524534, at *3 (alteration in original) (quoting Trezvant , 434 F.Supp.2d at 44 ). "In other words, the plaintiff must make " 'a modest factual showing' " that [he or she] and other employees, with similar but not necessarily identical jobs, suffered from a common unlawful policy or plan." Prescott , 729 F.Supp.2d at 364 (quoting Comer v. Wal-Mart Stores, Inc. , 454 F.3d 544, 547 (6th Cir. 2006) ).

Here, Plaintiffs seek conditional certification of a collective action that includes:

[D]elivery drivers ... who, at any time within the past three years, have been employed to deliver FedEx Ground's packages using vehicles under 10,001 pounds gross weight, and were paid by an ISP, but were not paid one-and-a-half times their regular rate of pay for overtime hours worked beyond forty per week.

(Dkt. No. 1 ¶ 30; Dkt. No. 6 at 3). Plaintiffs argue that they have satisfied the lenient standard required for the court to authorize issuance of notice to potential opt-in plaintiffs. Specifically, Plaintiffs allege that notwithstanding the terms of the contracts between FedEx Ground and the ISPs making the ISPs responsible for the delivery drivers' compensation including overtime, FedEx Ground was an actual employer of the named Plaintiffs and other drivers who were paid by ISPs and FedEx Ground violated the FLSA by failing to compensate eligible drivers who worked more than forty hours a week (Dkt. No. 1 ¶¶ 25-27; Dkt. No. 57 at 12-14).

Predictably, Defendant's objections to the court's conditional certification of a collective action concern FedEx Ground's ISP business model. FedEx Ground contends that it was not the drivers' employer. Instead, it asserts, it contracted with the ISPs to deliver its packages, the various ISPs employed the drivers, were responsible for the payment of their wages, including overtime, and are liable for evading the FLSA to the extent the drivers were not lawfully compensated (Dkt. No. 55 at 7). In view of this organizational structure, FedEx Ground's first contention is that Plaintiffs have failed to identify a uniform FedEx Ground policy of denying drivers overtime pay. FedEx Ground next contends that there is no evidence to establish that it jointly employed the delivery drivers, and, to the extent it was a joint employer with each ISP, joint employment, alone, does not violate the FLSA. Finally, because each ISP allegedly made individualized decisions regarding employment conditions such as truck size and compensation structure, FedEx Ground maintains that Plaintiffs cannot establish that other drivers were governed by a single unlawful policy or plan. However, FedEx Ground's arguments involve fact-intensive inquiries that should not be addressed on this undeveloped record and are more appropriate for consideration at stage two of the collective action certification process. See Roberts, 2017 WL 1217114, at *4 ("A more searching assessment of the evidence is appropriate at the second stage of certification based on the putative plaintiffs who have actually opted in."). Each of FedEx Ground's objections will be addressed in turn.

Plaintiffs respond to FedEx Ground's first objection by identifying its uniform scheme of contracting with intermediaries -- the ISPs -- to hire and pay delivery drivers as its generally applicable policy and practice aimed at evading the FLSA's overtime wage requirements. According to Plaintiffs, FedEx Ground's ISP business model should not insulate it from complying with the FLSA. See, e.g. , Martin v. Sprint/united Mgmt. Co. , No. 15 Civ. 5237 (PAE), 2016 WL 30334, at *10 (S.D.N.Y. Jan. 4, 2016) ("One can readily imagine a scenario in which a company with nationwide operations imposed a common policy as to wages, hours, or employment classifications that bound the intermediaries proximate to the affect