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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRACI OTTO and JOHN JUNKER, on : No. 4:06-CV-1186

behalf of themselves and similarly situated :

employees, : Judge Jones

Plaintiffs, :

v. :

:

POCONO HEALTH SYSTEM and :

POCONO MEDICAL CENTER, :

Defendants :

MEMORANDUM AND ORDER

October 27, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendants’ Pocono Health System and Pocono

Medical Center (collectively “Defendants”) Motion to Dismiss Plaintiffs’ State

Law Class Claim (doc. 10) filed on August 24, 2006.

For the reasons that follow, the Motion will be granted.

PROCEDURAL HISTORY/FACTUAL BACKGROUND:

Plaintiffs John Junker (“Junker”) and Traci Otto (“Otto”)(collectively

“Plaintiffs”), former employees of Defendants, filed a complaint with this Court on

June 12, 2006. (Rec. Doc. 1). The complaint alleges violations of the Fair Labor

Standards Act (“FLSA”) 29 U.S.C. § 201 et seq., the Pennsylvania Minimum

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Wage Act (“PMWA”), 43 P.S. § 333.101 et seq., and the Pennsylvania Wage

Payment and Collection Law (“PWPCL”), 43 P.S. § 260.1, et seq.

As noted, Plaintiffs are former employees of Defendants. While employed

by Defendants, Plaintiffs primarily allege that Defendants paid them pursuant to a

bi-weekly pay system, referred to as “8 and 80,” which violates the FLSA and the

PMWA because it fails to calculate overtime pay on a weekly basis. “8 and 80" is

a method of overtime compensation, under which health care providers pay

employees for hours worked over eight (8) in a day and over eighty (80) hours in a

14-day pay period rather than paying employees based on a 40-hour work week.

On August 24, 2006, the Defendants filed the instant Motion and supporting

brief, requesting this Court to dismiss the Plaintiff’s state law class claim under the

PMWA. (Rec. Docs. 10 and 11). On September 7, 2007, the Plaintiffs filed a brief

in opposition the Motion. (Rec. Doc. 18). On September 18, 2006, the Defendants

filed a reply brief. (Rec. Doc. 22). The Motion is therefore ripe for our review.

STANDARD OF REVIEW:

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a

court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.

1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for

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the Third Circuit added that in considering a motion to dismiss based on a failure

to state a claim argument, a court should "not inquire whether the plaintiffs will

ultimately prevail, only whether they are entitled to offer evidence to support their

claims." Furthermore, "a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355

U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d

Cir. 1986). 

DISCUSSION:

Section 216(b) of the FLSA expressly limits the scope of class actions for

overtime pay by requiring putative collective action members to opt-in

affirmatively to the action. Pursuant to Section 216(b) “[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 consent is filed in the court in which such action is brought.” On

the other hand, in state law class actions brought in federal court pursuant to Fed.

R. Civ. P. 23, prospective party plaintiffs must opt-out of the class upon notice of

the action. The essence of Defendants’ Motion is that the two schemes are

inherently incompatible, and accordingly the Plaintiffs’ state law class claim

should be dismissed.

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Recently, several cases in the United States District Court for the District of

New Jersey, our sister court in the Third Circuit, have held that Section 216(b) optin collective actions are incompatible with Rule 23 opt-out class actions. In Moeck

v. Gray Supply Corp., 2006 U.S. Dist. Lexis 511 (D.N.J., January 5, 2006), the

court, in denying the plaintiffs’ motion for class certification of the state claim,

held that by allowing the plaintiff “to circumvent the opt-in requirement and bring

unnamed parties into federal court by calling upon state statutes similar to the

FLSA would undermine Congress’s intent to limit these types of claims to

collective ations.” Id. at *15-16 (citing McClain v. Leona’s Pizzeria, Inc., 222

F.R.D. 574, 577 (N.D. Ill. 2004)(holding that allowing a plaintiff to certify an optout class in federal court would undermine Congress’s intent when creating an optin procedure for Section 216(b) claims)). 

Thereafter in Herring v. Hewitt Assoc., Inc., 2006 U.S. Dist. LEXIS 56189

(D. N.J. August 11, 2006), the district court granted the defendant’s motion to

dismiss the state law class action claim, citing Moeck, and holding that “Congress

created the opt-in procedure under the FLSA for the purpose of limiting private

FLSA plaintiffs to employees who asserted claim in their own right and freeing

employers from the burden of representative actions.” Herring, 2006 U.S. Dist.

LEXIS 56189 at *5-6 (quoting Moeck, 2006 U.S. Dist. LEXIS 511 at *15). 

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 Particularly, we find ourselves guided by the District of New Jersey rulings in light of

the fact that the Court of Appeals for the Third Circuit has not yet issued a ruling on this issue.

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 See e.g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975)(footnote

omitted)(stating that Section 216(b) and Rule 23 are “mutually exclusive and irreconcilable”).

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Consistent with the rulings in Moeck and Herring, the United States District Court

for the District of New Jersey also granted the defendant’s motion to strike the

state law class action in Himmelman v. Continental Casualty Co., 2006 U.S. Dist.

LEXIS 56187, holding that a Rule 23 opt-out class action and a Section 216(b) optin collective action are “inherently incompatible.” Id. at *5.

Although the referenced decisions and logic of our sister courts are not

binding authority upon this Court, they do serve as persuasive authority for us in

rendering our ruling.1

 It is clear that Congress labored to create an opt-in scheme

when it created Section 216(b) specifically to alleviate the fear that absent

individuals would not have their rights litigated without their input or knowledge. 

To allow an Section 216(b) opt-in action to proceed accompanied by a Rule 23 optout state law class action claim would essentially nullify Congress’s intent in

crafting Section 216(b) and eviscerate the purpose of Section 216(b)’s opt-in

requirement. To so hold would be contrary to the clear path being blazed by our

sister district court as well as the direction taken by some of our sister circuits.2

Accordingly, for the foregoing reasons, we shall grant the Defendants’

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Motion (doc. 10) and dismiss the Plaintiffs’ state law class action claim.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ Motion to Dismiss Plaintiff’s State Law Class Claim

(doc. 10) is GRANTED.

2. Count II of the complaint is DISMISSED.

s/ John E. Jones III

John E. Jones III

United States District Judge

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