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Cook v. E.I. Dupont De Nemours and Co.

United States District Court, M.D. Tennessee, Nashville Division

August 3, 2017

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

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Transfer Based on the First-Filed Rule and Incorporated Memorandum of Law (Doc. No. 27), filed by defendant E.I. du Pont de Nemours and Company (“DuPont”), seeking transfer of this action to the United States District Court for the Eastern District of Texas. The plaintiffs have filed a Memorandum in Opposition to Defendant's Motion to Transfer (Doc. No. 35), and DuPont has filed a Reply (Doc. No. 41). In addition, DuPont has filed a Notice of Supplemental Authority (Doc. No. 48), to which the plaintiffs have responded (Doc. No. 49).

         Also pending are Plaintiff's Motion for Conditional Certification and Expedited Court-Supervised Notice to the Potential Plaintiffs (Doc. No. 8), and DuPont's Motion to Stay Proceedings Pending Ruling on Defendant's Motion to Transfer (Doc. No. 28).

         For the reasons set forth below, the court will grant the Motion to Transfer and deny as moot the Motion to Stay. The court declines to rule on the Motion for Conditional Certification, leaving that motion to the transferee court.

         I. BACKGROUND

         On September 2, 2016, Gene Chance filed a collective-action lawsuit under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., against DuPont in the United States District Court for the Eastern District of Texas, Case No. 1:16-cv-376 (the “Texas action”). (Doc. No. 27-1.) In the Third Amended Complaint, the operative pleading, Chance brings claims individually and on behalf of those similarly situated against DuPont. The collective action class of similarly situated individuals is defined as including “all hourly and/or ‘Salaried Non-Exempt' current and former employees who worked at Defendant's [50 facilities nationwide] and who were not paid the correct overtime wages.” (Doc. No. 27-2, Texas Action 3d Am. Compl. ¶ 4.) Chance alleges that, until April 1, 2016, all non-exempt employees at each of DuPont's Legacy facilities were paid overtime wages that were improperly based on each employee's “straight time” rate wages rather than the actual remuneration the employees were paid, including Shift Premium Allowances and other remuneration, in violation of the FLSA.

         He also alleges that DuPont's payroll system, “MyInfo, ” changed in April 2016 and that DuPont made retroactive payments of recalculated overtime wages to current employees but that the amount paid did not fully compensate the named plaintiff or similarly situated employees, as it was improperly calculated and did not include liquidated damages as mandated by the FLSA. He seeks an order certifying the matter as a collective action and directing notice to putative collective action class members; damages in the full amount of unpaid overtime wages plus liquidated damages for a three-year limitations period, based on the defendant's willful violations of the FLSA; attorney fees, costs, pre- and post-judgment interest, and any other relief in law or equity to which the plaintiff and putative collective action members may be entitled. The plaintiff's Amended Motion to Certify a Collective Action Pursuant to Section 216(b) of the FLSA and to Approve a Proposed Notification to All Putative Collective Class Action Members, filed on May 8, 2017, remains pending in the Texas court.

         On June 2, 2017, exactly nine months after the Texas Action was filed, plaintiffs Kenneth Cook, James Botts, Shawn Hunter, Larry LaClair, Thomas Short, George Willis, James Cahoon, and Chris Paulley (the “Cook plaintiffs”), on behalf of themselves and others similarly situated, filed the present action in this court. The similarly situated collective action members identified by the Complaint consist of all current and former hourly employees “who worked in Hourly Paid Positions at one of defendant's plants nationwide” (Compl. ¶ 1) and were unlawfully deprived of overtime compensation under the FLSA (Compl. ¶ 2). The Complaint is accompanied by opt-in notices from over 400 other current or former DuPont employees. (Compl. Ex. A.)

         Like the plaintiff in the Texas Action, the Cook plaintiffs allege that DuPont improperly calculated their base wage rate for purposes of calculating overtime pay. They also allege that, after April 1, 2016, DuPont changed its payroll system to calculate the base pay rate differently and that it made some back payments of additional overtime pay for time worked prior to that date but that the additional payments did not include liquidated damages or interest. Unlike Chance, the Cook plaintiffs expressly allege a violation of the “prompt payment” requirements of 29 C.F.R. § 778.106 and assert that individuals who were no longer employed by DuPont as of April 1, 2016 never received any additional payments for overtime pay worked prior to April 1, 2016. The Complaint articulates a single cause of action (“Count I”) for violation of 29 U.S.C. § 207(a) and 29 C.F.R. Part 778, based on the withholding of timely overtime pay. Like Chance, the Cook plaintiffs seek liquidated damages and a three-year limitations period based on the defendant's allegedly willful violation of the FLSA. (Compl. ¶¶ 40-48.)

         On June 15, 2017, DuPont filed the present Motion to Transfer, arguing that transfer of this action to the United States District Court for the Eastern District of Texas is warranted under the so-called “first-to-file” rule, on the basis that the two collective action cases are essentially identical. As indicated above, the motion has been fully briefed and is ripe for review.

         II. LEGAL STANDARD

         The Sixth Circuit has recognized the “first-to-file rule” as a “well-established doctrine that encourages comity among federal courts of equal rank.” Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., 16 F. App'x 433, 437 (6th Cir. 2001). The rule “also conserves judicial resources by minimizing duplicative or piecemeal litigation, and protects the parties and the courts from the possibility of conflicting results.” Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016). “The rule provides that when actions involving nearly identical parties and issues have been filed in two different district courts, the court in which the first suit was filed should generally proceed to judgment.” Id. (internal quotation marks and citation omitted).

         The first-to-file rule generally applies where (1) the two actions involve nearly identical parties; (2) the two actions involve nearly identical issues; and (3) no equitable reasons or special circumstances are present to defeat the first-to-file rule. Long v. CVS Caremark Corp., No. 5:09CV1392, 2010 WL 547143 at *2 (Ohio Feb. 11, 2010). When the first-to-file rule is properly raised, a district court presiding over the second-filed case has many options for proceeding, including dismissing the case without prejudice, staying the suit before it, allowing both suits to proceed, or, in some cases, enjoining the parties from proceeding in the other suit. Baatz, 814 F.3d at 793.

         The rule is not strict, AmSouth Bank v. Dale, 386 F.3d 763, 791 n.8 (6th Cir. 2004), and it is within the discretion of the district court to decline to enforce it, “where equity so demands, ” such as when the record contains evidence of forum shopping, bad faith, or inequitable conduct. Zide Sport Shop, 16 F. App'x at 437. However, numerous courts have recognized that, “[i]n the FLSA collective action context, the First-to-File rule is often applied and is particularly appropriate.” Guyton v. Legacy Pressure Control, Inc., No. SA-15-CV-1075-XR, 2016 WL 5794801, at *2 (W.D. Tex. Oct. 4, 2016). See also Granado v. Quality Energy Servs., Inc., No. SA-15-CV-1061-XR, 2016 WL 705228, at *2 (W.D. Tex. Feb. 18, 2016) (“[D]istrict courts “have routinely applied the first-filed rule in the face of similar dual collective actions.'” (quoting Tex. Instruments v. Micron Semiconductor, 815 F.Supp. 994, 997 ...


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