2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-9-2012

Victor Zavala v. Wal Mart Stores Inc

Precedential or Non-Precedential: Precedential

Docket No. 11-2381

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 11-2381

_____________

VICTOR ZAVALA; EUNICE GOMEZ; 

MAXIMILIANO MENDEZ; 

CARLOS ALBERTO TELLO; ANTONIO FLORES; 

OCTAVIO DENISIO; 

MARTIN MACAK; PAVEL KUNC; 

HANA PFAUSEROVA; 

JIRI PFAUSER; TERESA JAROS; PETR ZEDNEK; 

DANIEL ANTONIO CRUZ; LUIS GUTIERREZ; 

FILIPE CONDADO; 

ARTURO ZAVALA; HIPOLITO PALACINOS, 

 Appellants

v.

WAL MART STORES INC.

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 2-03-cv-05309

District Judge: Honorable Garrett E. Brown, Jr.
2

Argued March 26, 2012

Before: FUENTES, SMITH, and JORDAN, 

Circuit Judges

(Filed: August 9, 2012)

Gilberto M. Garcia

Garcia & Kricko

Court Plaza South

West Wing, 3rd Floor 

Hackensack, NJ 07601

James L. Linsey (Argued)

Suite 615

11 Broadway

New York, NY 10004

Michaelene Loughlin

Loughlin & Latimer

179 Cedar Lane

Suite B

Teaneck, NJ 07666

Counsel for Appellants

Thomas H. Golden

Willkie, Farr & Gallagher

787 Seventh Avenue

New York, NY 10019
3

David P. Murray (Argued)

Willkie, Farr & Gallagher

1875 K Street, N.W.

Washington, DC 20006

Counsel for Appellee

________________

 OPINION

________________

SMITH, Circuit Judge.

I. Introduction

This suit was brought in the U.S. District Court for 

the District of New Jersey by Wal-Mart cleaning crew 

members who are seeking compensation for unpaid 

overtime and certification of a collective action under the 

Fair Labor Standards Act (FLSA), civil damages under 

RICO, and damages for false imprisonment. The 

workers – illegal immigrants who took jobs with 

contractors and subcontractors Wal-Mart engaged to 

clean its stores – allege: (1) Wal-Mart had hiring and 

firing authority over them and closely directed their 

actions such that Wal-Mart was their employer under the 

FLSA; (2) Wal-Mart took part in a RICO enterprise with 

predicate acts of transporting illegal immigrants, 
4

harboring illegal immigrants, encouraging illegal 

immigration, conspiracy to commit money laundering, 

and involuntary servitude; (3) Wal-Mart‘s practice of 

locking some stores at night and on weekends – without 

always having a manager available with a key –

constituted false imprisonment.

Over the course of eight years and a minimum of 

four opinions, the District Court rejected final 

certification of an FLSA class, rejected the RICO claim 

on several grounds, and rejected the false imprisonment 

claim on the merits. We will affirm.

II. Facts

This case has been pending for over eight years 

and ultimately comes to us from a grant of summary 

judgment. Not surprisingly, it carries with it a substantial 

record.1 To help organize the relevant facts in a useful 

 

1

This case provides a useful example of why the Federal 

Rules of Appellate Procedure provide for a joint 

appendix and give each party the authority to designate 

any relevant documents for inclusion. See Fed. R. App. 

P. 30(b)(1). Rather than cooperate to produce a joint 

appendix, the parties here have provided one primary 

appendix and two sets of supplemental appendices (one 

from each side). This unnecessarily complicates the 

record on appeal, and we strongly discourage parties 

from pursuing such a course in the future. 
5

manner, we have divided them into groups corresponding 

to Plaintiffs‘ claims. We focus only on the facts relevant 

to our bases for deciding the appeal.

A. RICO

Plaintiffs allege that Wal-Mart paid its contractors 

with full knowledge that the contractors were hiring 

illegal immigrants to work in Wal-Mart‘s stores. 

Plaintiffs support this contention with further allegations 

that two senior Wal-Mart executives made comments that 

could be understood as acknowledging that the

contractors had hired and would continue to hire illegal 

immigrants. In addition, Plaintiffs allege that Wal-Mart 

managers and executives were regularly informed that 

their contractors were employing illegal immigrants.

In support of their RICO transporting predicate, 

Plaintiffs allege that contractors would sometimes pick 

workers up from the airport and transport them across 

state lines for work. They also allege that when a work 

crew was arrested by federal authorities, fired / ejected 

by the store manager, or otherwise unavailable to work, 

another work crew would be brought in within hours, 

often from out of state. In support of their RICO 

harboring predicate, Plaintiffs allege at least one instance 

in which work crews were permitted to sleep in the store 

and keep their personal belongings there with the 

knowledge of store management. In support of their 

RICO encouraging predicate, Plaintiffs allege that 
6

contractors advertised for Wal-Mart cleaning jobs in the 

Czech Republic and elsewhere. In support of their RICO

involuntary servitude predicate, Plaintiffs allege that they 

were coerced into working by threats to report their 

immigration status to authorities. Plaintiffs also use the 

facts supporting their false imprisonment claims to 

support their involuntary servitude claims. Those facts 

will be discussed below.

The record indicates that Plaintiffs did not work 

exclusively for Wal-Mart, nor did Wal-Mart hire its 

cleaners exclusively from the pool of illegal immigrants 

it allegedly transported, harbored, and encouraged. For 

example, documents and deposition testimony provided 

by Plaintiffs demonstrate that they held a variety of jobs, 

including work at a Marriott hotel, work at a movie 

theater, and work remodeling homes. And the record 

indicates that Wal-Mart often used store associates 

(regular, non-contract employees) to clean its stores.

B. Certification of the FLSA Collective Action

The District Court‘s decision to decertify the 

collective action followed substantial discovery into the 

potential class plaintiffs, their employment history, their 

work hours, their working conditions, and other relevant 

factors. Magistrate Judge Arleo, to whom some of the 

proceedings below were assigned, required each opt-in 

plaintiff to file a questionnaire in a specific format 

detailing his / her personal information, working 
7

conditions, compensation, etc. Over one hundred

individuals filed this questionnaire before the deadline. 

The questionnaires demonstrate that the opt-in plaintiffs 

worked at dozens of different stores, for numerous 

different contractors, with various pay amounts and 

methods. Though most worked every evening from 

roughly 11pm – 7am, their hours sometimes varied.

In an effort to demonstrate that the proposed class 

is similarly situated, Plaintiffs proffer a Wal-Mart 

Maintenance Manual (and a translation of that manual 

into Polish), which appears to establish uniform 

standards and procedures for cleaning Wal-Mart stores. 

The manual is comprehensive. Among other things, it 

specifies the products and methods to be used, as well as 

the procedure for obtaining new supplies or equipment. 

In a similar vein, Plaintiffs provide declarations and

deposition testimony establishing that Wal-Mart provided 

the cleaning materials used by the crew, though at least 

one Wal-Mart store manager asserts that contractors 

provided their own equipment.

In an effort to demonstrate that Wal-Mart 

exercised control over the proposed class and that this 

control was common across Wal-Mart stores, Plaintiffs 

provide declarations and deposition testimony supporting 

their contention that Wal-Mart managers directed them 

where and how to clean and often scrutinized their work, 

requiring them to clean an area more thoroughly before 
8

leaving. Wal-Mart provides declarations from store 

managers insisting that their interactions with crews were 

limited to general instructions. They insist that they did 

not supervise the cleaners and that issues were usually 

raised with the crew chief or the contracting company. 

Plaintiffs concede in their own deposition testimony that 

cleaners did not receive training from Wal-Mart staff. 

Generally, cleaners were trained by other members of the 

work crew or learned simply by observing. 

Plaintiffs also claim that Wal-Mart asserted and 

exercised the right to hire and fire the cleaning crews. 

Plaintiffs point first to a form contract distributed to WalMart stores to be used in hiring cleaning crews. The 

letter accompanying the contract and the contract itself 

specify that the Wal-Mart store manager shall have final 

authority to approve or disapprove members of the 

cleaning crew. In addition, Plaintiffs provide 

declarations and deposition testimony establishing that 

Wal-Mart management would occasionally fire 

individual workers or whole work crews. Multiple WalMart managers provide declarations asserting that they 

did not have the authority to hire and fire crew members.

C. False Imprisonment

In support of their false imprisonment claims, 

Plaintiffs allege that they often worked at stores that were 

shut down at night and on weekends, during which time 

the exits were locked. At these stores, they needed to 
9

seek out managers to open the doors. Managers were 

often unavailable and were sometimes not even in the 

store. However, Plaintiffs‘ deposition testimony shows 

that they could and sometimes did leave for breaks. 

Testimony also shows that they occasionally left for 

work-related tasks like retrieving propane (necessary for

the buffing equipment).

Plaintiffs cite two specific instances in which they 

wanted to leave but were unable to do so: (1) Plaintiff 

Petr Zednik had a toothache and wanted to leave early, 

but his manager, Steve, refused to permit him to leave; 

(2) Plaintiff Teresa Jaros had abdominal pain and 

bleeding and wanted to leave, but no managers were in 

the store. In Zednik‘s case, he further asserts that ―Steve 

is a muscular man (with blond hair), and I knew that he 

would assault me if I tried to escape through any door 

that would let me out[.]‖

In response, Wal-Mart provides two declarations

from store managers. The declarations attest that 

managers were available to unlock doors ―when 

necessary‖; that the stores had properly-marked 

emergency exits; and that – to the managers‘ knowledge 

– the emergency exits were neither concealed nor 

obstructed at any time and were always in proper 

working order.

In reply to these declarations, Plaintiffs assert that 

managers were often unavailable. They also assert that 
10

they did not know how to leave. Plaintiffs claim that 

they were never informed of the location of emergency 

exits. Plaintiffs also speculate that Wal-Mart had motive 

to conceal these exits.

III. Procedural Timeline

The initial complaint in this case was filed on 

November 10, 2003, and the case was assigned to thenDistrict Judge Joseph A. Greenaway, Jr. The original 

complaint was followed by a First Amended Class 

Action Complaint on February 2, 2004. This complaint 

sought damages for: (1) RICO (with predicate acts of 

transporting, harboring, encouraging, and hiring illegal 

immigrants, conspiracy / aiding and abetting 

transporting, harboring, and encouraging illegal 

immigrants, committing immigration offenses for 

financial gain, involuntary servitude, money laundering, 

mail and wire fraud, and conspiracy to launder money); 

(2) RICO conspiracy; (3) conspiracy to violate civil 

rights under 42 U.S.C. § 1985; and (4) violations of the 

Fair Labor Standards Act. On December 29, 2004, the 

District Court conditionally certified the FLSA collective 

action.

On October 7, 2005, ruling on a motion to dismiss, 

the District Court concluded that: (1) Plaintiffs failed to 

state a claim for any of their alleged RICO predicates; (2) 

Plaintiffs were not members of a class protected by 42 

U.S.C. § 1985; and (3) Plaintiffs‘ FLSA and false 
11

imprisonment claims could proceed. In response, 

Plaintiffs filed a Second Amended Complaint on 

November 21, 2005. This complaint abandoned

Plaintiffs‘ civil rights claim under 42 U.S.C. § 1985, the 

RICO predicate of hiring illegal immigrants, the RICO 

predicate of money laundering (but not conspiracy to 

launder money), and the RICO predicate of mail and wire 

fraud.

On August 28, 2006, deciding a partial motion to 

dismiss the Second Amended Complaint, the District 

Court dismissed Plaintiffs‘ RICO and RICO conspiracy 

claims. The District Court held: (1) Plaintiffs failed to 

satisfy the RICO requirement of showing ―distinctness‖ 

between the ―person‖ and the ―RICO enterprise‖; (2) 

Plaintiffs failed to state a claim for their RICO predicate 

of involuntary servitude; and (3) Plaintiffs failed to 

establish a causal nexus between their RICO predicates 

of immigration violations and money laundering and 

their alleged injury.

On March 10, 2010, this case was reassigned to

then-Chief District Judge Garrett E. Brown, Jr. On June 

25, 2010, the District Court granted Wal-Mart‘s motion 

to decertify Plaintiffs‘ provisionally-certified FLSA 

collective action. The District Court concluded that the 

breadth of factual circumstances underlying each 

individual‘s claim did not permit trial of the case as a 

collective action. On December 1, 2010, the District 
12

Court denied Plaintiffs‘ motion for summary judgment 

on their FLSA and false imprisonment claims. The 

District Court concluded that the motion was 

procedurally improper because it was filed well beyond 

the deadline provided by the federal rules. The District 

Court also concluded that the motion failed on the merits 

because material facts remained in contention on both 

claims.

On April 7, 2011, the District Court granted WalMart‘s motion for partial summary judgment on the false 

imprisonment claim. It first concluded that Wal-Mart 

had shown adequate grounds for seeking summary 

judgment beyond the time limit provided by the federal 

rules. It then held that Plaintiffs‘ false imprisonment 

claims failed on the merits because Wal-Mart had

adequately demonstrated the availability of emergency 

exits and Plaintiffs failed to rebut this evidence. 

Following that decision, Wal-Mart resolved the 

individual FLSA claims of named Plaintiffs through a 

series of settlements and an offer of judgment.

This appeal followed. Plaintiffs challenge the 

District Court‘s dismissal of their RICO claims, its 

decertification of the conditionally-certified FLSA 

action, and its grant of summary judgment for Wal-Mart 

on Plaintiffs‘ false imprisonment claims. The District 

Court had jurisdiction under 28 U.S.C. § 1331, 29 U.S.C. 
13

§ 216(b), 18 U.S.C. § 1964(c), and 28 U.S.C. § 1367(a). 

We have appellate jurisdiction under 28 U.S.C. § 1291.

IV. Analysis

A. Certification of the FLSA Collective Action

The District Court conditionally certified this as a 

collective action under the FLSA. Following discovery, 

a ―motion for decertification‖ was brought, and the 

District Court ―decertified‖2the class. As the District 

Court explained, two different standards apply for 

certification under the FLSA, one for conditional 

certification, and another for final certification. While 

we have made clear that the standard for final 

certification is more stringent than the standard for 

conditional certification, the exact test to be applied has 

been left specifically unresolved by our Court. We 

decide today that to certify an FLSA collective action for 

trial, the District Court – after considering the claims and 

defenses of the parties and all the relevant evidence –

must make a finding of fact that the members of the 

collective action are ―similarly situated.‖ The burden of 

demonstrating that members of the collective action are 

similarly situated is to be borne by the plaintiffs, who 

must show by a preponderance of the evidence that they 

are similarly situated.

 

2

This terminology is misleading, as we will demonstrate.
14

1. Standard of Review

We must first address the appropriate standard of 

review. The standard of review for FLSA decertification 

has not been previously addressed by our Court. Other 

circuits have applied an abuse of discretion standard to 

the ultimate decision on whether to certify the collective 

action. See, e.g., Morgan v. Family Dollar Stores, Inc., 

551 F.3d 1233, 1260 (11th Cir. 2008) (―[W]e review a 

district court‘s § 216(b) certification for abuse of 

discretion.‖); Thiessen v. Gen. Elec. Capital Corp., 267 

F.3d 1095, 1105 (10th Cir. 2001) (same in ADEA 

context).3

We agree that an abuse of discretion standard is 

appropriate. But we note that this is not the type of abuse 

of discretion review afforded matters that are ―committed 

to the discretion of the trial court[.]‖ United States v. 

Criden, 648 F.2d 814, 817 (3d Cir. 1981). In those 

situations, we will reverse only if the district court‘s 

decision is ―arbitrary, fanciful or unreasonable, which is 

another way of saying that discretion is abused only 

where no reasonable man would take the view adopted 

by the local court.‖ Lindy Bros. Builders, Inc. v. Am. 

 

3

Thiessen is an ADEA case. Throughout this section, we

will use FLSA and ADEA cases interchangeably, as the 

ADEA imports by reference the collective action 

provision and ―similarly situated‖ standard of the FLSA. 

See 29 U.S.C. § 626(b).
15

Radiator, Etc., 540 F.2d 102, 115 (3d Cir. 1976) (en 

banc) (quoting Delno v. Market St. Ry. Co., 124 F.2d 

965, 967 (9th Cir. 1942)). Here, however, we will find 

an abuse of discretion ―if the district court‘s decision 

 ̳rests upon a clearly erroneous finding of fact, an errant 

conclusion of law or an improper application of law to 

fact.‘‖ In re Hydrogen Peroxide Antitrust Litig., 552

F.3d 305, 312 (3d Cir. 2008) (quoting Newton v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 

(3d Cir. 2001)).

This type of review is appropriate because the final 

certification of an FLSA collective action is composed of 

two underlying components: (1) determining the legal

standard to be applied in concluding whether proposed 

plaintiffs are similarly situated; and (2) applying the legal 

standard to conclude whether the proposed plaintiffs 

actually are similarly situated. The former has been 

recognized as a legal question, subject to de novo review. 

See Thiessen, 267 F.3d at 1105 (―The initial question, 

which we address de novo, is whether it was proper for 

the district court to adopt the ad hoc approach in 

determining whether plaintiffs were  ̳similarly situated‘ 

for purposes of § 216(b).‖). The latter has been 

recognized as a factual question, subject to review for 

clear error. See Morgan, 551 F.3d 1260 (―A court‘s 

determination that the evidence shows a particular group 

of opt-in plaintiffs are similarly situated is a finding of 

fact. . . . We will reverse the district court‘s fact-finding 
16

that plaintiffs are similarly situated only if it is clearly 

erroneous.‖); Mooney v. Aramco Servs., 54 F.3d 1207, 

1214 (5th Cir. 1995) (―At [the second] stage, the court 

. . . makes a factual determination on the similarly 

situated question.‖), overruled on other grounds by 

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

Once it has been determined that the plaintiffs are 

similarly situated (a factual question reviewed for clear 

error), there is no further work to be done. We do not 

believe that the statute gives the district court discretion 

to deny certification after it has determined that plaintiffs 

are similarly situated. Accordingly, no exercise of 

discretion actually takes place. Nonetheless, such multipart reviews of District Court decisions have been 

routinely labeled with the ―abuse of discretion‖ standard 

under our precedent and the precedent of our sister 

circuits, though we have made clear that each part of the 

review should proceed under the appropriate standard for 

that component. See, e.g., Gates v. Rohm & Haas Co., 

655 F.3d 255, 262 (3d Cir. 2011); Morgan v. Perry, 142 

F.3d 670, 682-83 (3d Cir. 1998).

Because we are examining the underlying legal 

rule for certification, we exercise plenary review over the 

District Court‘s decision to not finally certify the 

collective action here. Going forward, however, because 

district courts will be applying the standard we announce 

today, we anticipate that certification decisions will 
17

typically be subject to review under the clear-error prong 

of this type of abuse of discretion review, as only factfinding should be at issue.

2. Standard for Certification of an 

FLSA Collective Action

In ―decertifying‖ this collective action, the District 

Court explained that two different standards for 

certification applied. It noted that a ―fairly lenient 

standard‖ applied for conditional certification, and noted 

that some courts ―require nothing more than substantial 

allegations that the putative class members were together 

the victims of a single decision, policy, or plan[.]‖ 

Zavala v. Wal-Mart Stores, Inc., No. 03-5309, 2010 WL 

2652510, at *2 (D.N.J. June 25, 2010) (quoting Morisky 

v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 495 

(D.N.J. 2000)). The District Court then held that a 

―stricter standard‖ applied on final certification, in which 

the court actually determines whether the plaintiffs are 

similarly situated. And it held that plaintiffs bear the 

burden of demonstrating that they are similarly situated. 

Without precisely quantifying the burden borne by the 

plaintiffs, the District Court then concluded that, under 

the disparate factual circumstances applicable here, 

Plaintiffs were not similarly situated, and 

―decertification‖ was appropriate.

In Symczyk v. Genesis Healthcare Corp., 656 F.3d 

189 (3d Cir. 2011), we noted that this two-tier approach, 
18

while ―nowhere mandated, . . . appears to have garnered 

wide acceptance.‖ Id. at 193 n.5. We implicitly 

embraced this two-step approach, and we affirm its use 

here. But we also explained that the ―conditional 

certification‖ is not really a certification. It is actually 

― ̳the district court‘s exercise of [its] discretionary power, 

upheld in Hoffmann-La Roche, to facilitate the sending of 

notice to potential class members,‘ and  ̳is neither 

necessary nor sufficient for the existence of a 

representative action under [the] FLSA.‘‖ Id. at 194 

(quoting Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 

(2d Cir. 2010)). In articulating the standard to be applied 

at this initial stage,4 we left open the question of the 

 

4 We adopted the ―modest factual showing‖ standard, 

under which ―a plaintiff must produce some evidence, 

 ̳beyond pure speculation,‘ of a factual nexus between the 

manner in which the employer‘s alleged policy affected 

her and the manner in which it affected other 

employees.‖ Symczyk, 656 F.3d at 193 (citing Smith v. 

Sovereign Bancorp, Inc., No. 03-2420, 2003 WL 

22701017, at *3 (E.D. Pa. Nov. 13, 2003)). The Second 

Circuit has described this initial step as ―determin[ing] 

whether  ̳similarly situated‘ plaintiffs do in fact exist,‖ 

while at the second stage, the District Court determines 

―whether the plaintiffs who have opted in are in fact 

 ̳similarly situated‘ to the named plaintiffs.‖ Myers, 624 

F.3d at 555.
19

standard to be applied on final certification. Id. at 193 

n.6 (―Because only the notice stage is implicated in this 

appeal, we need not directly address the level of proof 

required to satisfy the similarly situated requirement at 

the post-discovery stage.‖).

It is clear from the statutory text of the FLSA that 

the standard to be applied on final certification is whether 

the proposed collective plaintiffs are ―similarly 

situated.‖5 Courts have adopted three different 

approaches for determining whether this is the case. See 

Thiessen, 267 F.3d at 1102-03. The first is the ad-hoc 

approach, which considers all the relevant factors and 

makes a factual determination on a case-by-case basis. 

To our knowledge, this is the only approach approved by 

other Courts of Appeals. See, e.g., Morgan, 551 F.3d at 

1259-62 (11th Cir. 2008); Thiessen, 267 F.3d at 1105 

(10th Cir. 2001). The other two approaches are derived 

from Rule 23 and have only been adopted by district 

courts. See Thiessen, 267 F.3d at 1103. We have already 

repeatedly approved the ad-hoc approach, and we do so 

again today. See, e.g., Symczyk, 656 F.3d at 193 n.6; 

Ruehl v. Viacom, Inc., 500 F.3d 375, 388 n.17 (3d Cir. 

2007); Lockhard v. Westinghouse Credit Corp., 879 F.2d 

 

5

29 U.S.C. § 216(b) (―An action to recover the liability 

prescribed [by this statute] . . . may be maintained . . . by 

any one or more employees for and in behalf of himself 

or themselves and other employees similarly situated.‖). 
20

43, 51 (3d Cir. 1989), overruled on other grounds by

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).

Our Court and the other Courts of Appeals to 

address the issue have identified many factors to be 

considered as part of the ad-hoc analysis. Relevant 

factors include (but are not limited to): whether the 

plaintiffs are employed in the same corporate department, 

division, and location; whether they advance similar 

claims; whether they seek substantially the same form of 

relief; and whether they have similar salaries and 

circumstances of employment. Plaintiffs may also be 

found dissimilar based on the existence of individualized 

defenses. See Ruehl, 500 F.3d at 288 n.17. This list is 

not exhaustive, and many relevant factors have been 

identified. See 45C Am. Jur. 2d Job Discrimination 

§ 2184 (listing 14 factors to be considered in determining 

whether proposed collective action plaintiffs are 

―similarly situated‖ under the ADEA).

Finally, we conclude that the burden is on the 

plaintiffs to establish that they satisfy the similarly 

situated requirement. See Symczyk, 656 F.3d at 193 

(―Should the plaintiff satisfy her burden at [the second]

stage, the case may proceed to trial as a collective 

action.‖); see also O’Brien v. Ed Donnelly Enters., 575 

F.3d 567, 584 (6th Cir. 2009) (―The lead plaintiffs bear 

the burden of showing that the opt-in plaintiffs are 

similarly situated to the lead plaintiffs.‖). 
21

What remains unresolved is the level of proof the 

plaintiffs must satisfy. In Symczyk, we specifically 

declined to answer this question. Symczyk, 656 F.3d at 

193 n.6 (―Because only the notice stage is implicated in 

this appeal, we need not directly address the level of 

proof required at the post-discovery stage.‖). To our 

knowledge, no other Court of Appeals has directly 

answered this question.

 We now hold that plaintiffs must satisfy their 

burden at this second stage by a preponderance of the 

evidence.6 As the Second Circuit observed, the task on 

final certification is determining ―whether the plaintiffs 

who have opted in are in fact  ̳similarly situated‘ to the 

named plaintiffs.‖ Myers, 624 F.3d at 555. That seems 

impossible unless Plaintiffs can at least get over the line 

of ―more likely than not.‖ At the same time, a stricter 

standard would be inconsistent with Congress‘ intent that 

the FLSA should be liberally construed. See Morgan, 

551 F.3d at 1265 (―We also bear in mind that the FLSA 

is a remedial statute that should be liberally construed.‖).

 

6 Because this issue is necessary to our decision and was 

not directly addressed in the original briefs, we requested 

supplemental briefing. Wal-Mart asserted that a 

preponderance standard applied. In their brief, the 

Plaintiffs did not articulate a precise burden. But at oral 

argument, both parties agreed that a preponderance of the 

evidence standard was appropriate.
22

Our conclusion that preponderance of the evidence 

is the appropriate standard to apply is buttressed by the 

Supreme Court‘s presumption ―that this standard is 

applicable in civil actions between private litigants unless 

 ̳particularly important individual interests or rights are at 

stake.‘‖ Grogan v. Garner, 498 U.S. 279, 286 (1991). 

And we have said that ―[w]e see no reason to deviate 

from the traditional preponderance of the evidence 

standard in the absence of express direction from 

Congress.‖ United States v. Himler, 797 F.2d 156, 161 

(3d Cir. 1986).

We hold that plaintiffs must demonstrate by a 

preponderance of the evidence that members of a 

proposed collective action are similarly situated in order 

to obtain final certification and proceed with the case as a 

collective action.

3. Application of the FLSA 

Certification Standard

Plaintiffs have failed to satisfy the ―similarly 

situated‖ standard. The similarities among the proposed 

plaintiffs are too few, and the differences among the

proposed plaintiffs are too many.
23

Plaintiffs‘ theory is that Wal-Mart wanted clean 

stores ―on the cheap.‖

7

 To that end, Wal-Mart distributed 

a maintenance manual that went into exacting detail 

about how to clean floors, shelves, bathrooms, and other 

parts of the store. This manual mandated procedures that 

all employees and contractors were to use. Store 

managers also received a form contract for use with 

outside cleaning contractors, and were instructed that 

they had final authority to approve or disapprove 

members of cleaning crews. There is evidence that store 

managers fired members of cleaning crews and that WalMart employees regularly directed cleaning crews in 

conducting their work in the store. There is also 

evidence that Wal-Mart store managers and corporate 

officers knew and approved of contractors‘ widespread 

hiring of illegal immigrants.

 

7

For purposes of this analysis, we will recite the facts as 

set forth by the Plaintiffs. This is not required by the 

certification analysis, but we do so to demonstrate that,

even reciting the facts to Plaintiffs‘ benefit, Plaintiffs are 

unable to meet their burden for certification. We note 

that Wal-Mart disputes many of these facts, such as the 

provenance of the maintenance manual and how 

widespread was its use, the hiring and firing authority of 

store managers, etc. We do not purport to resolve these 

factual disputes either for or against the Plaintiffs or WalMart.
24

Being similarly situated does not mean simply 

sharing a common status, like being an illegal immigrant. 

Rather, it means that one is subjected to some common 

employer practice that, if proved, would help 

demonstrate a violation of the FLSA. And, indeed,

Plaintiffs‘ allegation of a common scheme to hire and 

underpay illegal immigrant workers provides some 

common link among the proposed class. Plaintiffs‘ 

evidence with regard to the maintenance manual, the 

authority of store managers, and the supervision by store 

employees is relevant to demonstrating whether WalMart employed the proposed plaintiffs. And such a 

scheme potentially demonstrates Wal-Mart‘s willfulness 

in violating the FLSA. But these common links are of 

minimal utility in streamlining resolution of these cases. 

Liability and damages still need to be individually 

proven.

While the District Court noted the commonalities 

among the proposed plaintiffs, it was ultimately 

convinced that the class should not be certified for trial. 

―In all,‖ it found, ―the putative class members worked in 

180 different stores in 33 states throughout the country 

and for 70 different contractors and subcontractors. The 

individuals worked varying hours and for different wages 

depending on the contractor.‖ Zavala, No. 03-5309, 

2010 WL 2652510, at *3 (internal citations omitted). 

These factors convinced the District Court that there 

were ―significant differences in the factual and 
25

employment settings of the individual claimants.‖ Id. 

The District Court also noted that different defenses 

might be available to Wal-Mart with respect to each 

proposed plaintiff, including that individual cleaners

were not Wal-Mart employees, as that term is defined by 

the FLSA, and that it paid some of its contractors an 

adequate amount to support an appropriate wage for the 

cleaners. See id. at *4-*5.

We agree with the District Court. Considering the 

numerous differences among members of the proposed 

class in light of the alleged common scheme‘s minimal 

utility in streamlining resolution of the claims, we 

conclude that the Plaintiffs have not met their burden of 

demonstrating that they are similarly situated. We will 

therefore affirm the District Court‘s decision to deny 

final certification.

B. Civil RICO Claims

Plaintiffs originally alleged RICO violations with 

underlying predicate acts of transporting, harboring, 

encouraging, and hiring illegal immigrants, mail and wire 

fraud, money laundering, and related conspiracy and 

aiding and abetting claims. The District Court then

dismissed Plaintiffs‘ civil RICO claims for failure to state 

a claim on the underlying predicate acts. See Zavala v. 

Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 304 (D.N.J. 

2005). When Plaintiffs later amended their complaint, 

they dropped the predicate acts of hiring illegal 
26

immigrants and mail and wire fraud. In its subsequent 

opinion, the District Court took a different approach. It 

first held that Plaintiffs had failed to state a claim for the 

predicate act of involuntary servitude. But for the other 

predicate acts – transporting illegal immigrants, 

concealing illegal immigrants, harboring illegal 

immigrants, conspiracy / aiding and abetting claims for 

each of these, and conspiracy to commit money 

laundering – the District Court held that Plaintiffs had 

failed to show a causal nexus between these acts and 

their alleged injury. It also held that Plaintiffs had failed 

to satisfy RICO‘s distinctness requirement. See Zavala v. 

Wal-Mart, 447 F. Supp. 2d 379 (D.N.J. 2006). For these 

independent reasons, the District Court again dismissed 

Plaintiffs‘ RICO allegations for failure to state a claim.

In its later opinion, the District Court did not 

disavow its prior holding that Zavala had failed to plead 

at least two predicate acts, and Wal-Mart renews this 

argument on appeal. See Appellee‘s Br. at 24. WalMart is correct. We conclude that Plaintiffs have failed 

to state a claim for RICO or RICO conspiracy by failing 

to allege a pattern of predicate acts.

8

 

8 We also have serious doubt that the Plaintiffs have met 

the pleading requirements for RICO distinctness and 

proximate causation, but we do not need to reach those 

issues, in light of the pleading deficiency regarding 

predicate acts.
27

On a motion to dismiss for failure to state a claim, 

our review is plenary. See Phillips v. Cnty. of Allegheny, 

515 F.3d 224, 230 (3d Cir. 2008). The complaint‘s 

―[f]actual allegations must be enough to raise a right to 

relief above the speculative level.‖ Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 545 (2007). 

1. Pleading of the RICO Conspiracy 

Claim

In addition to their RICO claim, Plaintiffs also 

claim conspiracy to violate RICO under 18 U.S.C. 

§ 1962(d) (―It shall be unlawful for any person to 

conspire to violate any of the provisions of subsection 

(a), (b), or (c) of this section.‖). RICO conspiracy is not 

a mere conspiracy to commit the underlying predicate 

acts. It is a conspiracy to violate RICO – that is, to 

conduct or participate in the activities of a corrupt 

enterprise. See Salinas v. United States, 522 U.S. 52, 62 

(1997) (―Before turning to RICO‘s conspiracy provision, 

we note the substantive RICO offense, which was the 

goal of the conspiracy[.]‖ (emphasis added)); Banks v. 

Wolk, 918 F.2d 418, 421 (3d Cir. 1990) (―[A] defendant 

can be liable under RICO‘s conspiracy provision for 

agreeing to the commission of a pattern of racketeering 

activity.‖ (emphasis added)); United States v. Elliott, 571 

F.2d 880, 902 (5th Cir. 1978) (―[T]he object of a RICO 

conspiracy is to violate a substantive RICO provision 

here, to conduct or participate in the affairs of an 
28

enterprise through a pattern of racketeering activity and 

not merely to commit each of the predicate crimes 

necessary to demonstrate a pattern of racketeering 

activity.‖). Plaintiffs fail to plead facts supporting a 

conclusion that this was the object of the alleged 

conspiracy. Accordingly, the dismissal of Plaintiffs‘ 

claim under Section 1962(d) was not error. It is an

entirely separate question whether Plaintiffs allege a 

conspiracy to commit money laundering or immigration 

violations, which would then constitute predicate acts for 

a traditional RICO claim under 18 U.S.C. § 1962(c). We 

will turn to that contention later in this opinion.

2. Pleading of the RICO Predicates

a) Pleading of the RICO 

Involuntary Servitude Predicate

Plaintiffs claim that the conditions of their 

employment amount to involuntary servitude, barred by 

15 U.S.C. § 1584. Per 18 U.S.C. § 1961(1)(B), this is a 

RICO predicate act. The District Court concluded that 

Plaintiffs failed to allege a plausible claim of involuntary 

servitude. We agree. 

―[T]he phrase  ̳involuntary servitude‘ was intended 

. . .  ̳to cover those forms of compulsory labor akin to 

African slavery[.]‘‖ United States v. Kozminski, 487 U.S. 

931, 942 (1988) (quoting Butler v. Perry, 240 U.S. 328, 

332 (1916)). ―Modern day examples of involuntary 
29

servitude have been limited to labor camps, isolated 

religious sects, or forced confinement.‖ Steirer v. 

Bethlehem Area Sch. Dist., 987 F.2d 989, 999 (3d Cir. 

1993); see, e.g., United States v. King, 840 F.2d 1276, 

1280 (6th Cir. 1988) (religious sect violated 18 U.S.C. 

§ 1584 where they ―used and threatened to use physical 

force to make the children [at their camp] perform labor 

and the children believed they had no viable alternative 

but to perform such labor‖); United States v. Booker, 655 

F.2d 562, 563, 566 (4th Cir. 1981) (migrant labor camp 

held farm workers in involuntary servitude, forbade them 

from leaving without paying their debts, and enforced the 

rule with threats of physical harm, actual physical injury, 

and by kidnapping and returning to the farm workers who 

attempted to leave); Jobson v. Henne, 355 F.2d 129, 131-

32 (2d Cir. 1966) (patients in mental institution 

performing required labor stated Thirteenth Amendment 

claim).

Plaintiffs have presented evidence of some 

difficult working conditions, but they have demonstrated 

nothing ―akin to African slavery‖ or any modern 

analogue. Any such comparison is plainly frivolous. 

Plaintiffs do not allege that they were held in a labor 

camp or forced into daily labor by a religious sect. Any 

allegation that their working conditions constituted 

forced confinement falls with their false imprisonment 

claims, discussed later in this opinion.
30

To the extent Plaintiffs allege that they were 

threatened with deportation, those allegations are 

likewise insufficient to constitute involuntary servitude. 

In United States v. Kozminski, the Supreme Court 

observed that it was ―possible‖ that threatening an 

immigrant with deportation might amount to a ―threat of 

legal coercion‖ resulting in involuntary servitude. 487 

U.S. at 948. At the same time, the Court endorsed Judge 

Friendly's observation in United States v. Shackney, 333 

F.2d 475 (2d Cir. 1964): ―The most ardent believer in 

civil rights legislation might not think that cause would 

be advanced by permitting the awful machinery of the 

criminal law to be brought into play whenever an 

employee asserts that his will to quit has been subdued 

by a threat which seriously affects his future welfare but 

as to which he still has a choice, however painful.‖ 

Kozminski, 487 U.S. at 950 (quoting Shackney, 333 F.2d 

at 487). In Shackney, the Second Circuit further held:

[W]e see no basis for concluding that 

because the statute can be satisfied by a 

credible threat of imprisonment, it should 

also be considered satisfied by a threat to 

have the employee sent back to the country 

of his origin, at least absent circumstances 

which would make such deportation 

equivalent to imprisonment or worse. . . . 

[A] holding in involuntary servitude means 

to us action by the master causing the 
31

servant to have, or to believe he has, no way 

to avoid continued service or confinement, . 

. . not a situation where the servant knows 

he has a choice between continued service 

and freedom, even if the master has led him 

to believe that the choice may entail 

consequences that are exceedingly bad. . . . 

While a credible threat of deportation may 

come close to the line, it still leaves the 

employee with a choice, and we do not see 

how we could fairly bring it within § 1584 

without encompassing other types of threat.

333 F.2d at 486-87 (internal citation omitted). We agree 

with Judge Friendly‘s analysis. Absent some special 

circumstances, threats of deportation are insufficient to 

constitute involuntary servitude.

Plaintiffs do not claim that they were compelled to 

come to work each day. While they allege that managers 

often kept them beyond the end of their shift to finish 

their work, they do not claim that they were forced to 

remain once that work was finished. The record 

demonstrates that Plaintiffs often switched jobs, freely 

moving to different employers in different cities. 

Plaintiffs do not allege that previous employers ever 

pursued them to compel their return to a previous 

position. And while a broad reading of Plaintiffs‘ 

allegations could lead to the conclusion that they were 
32

threatened with deportation for refusing to work, that is 

legally insufficient to constitute involuntary servitude. 

The District Court properly concluded that the Plaintiffs 

had failed to adequately plead the RICO predicate of 

involuntary servitude.

b) Pleading of the RICO 

Transporting Predicate

Transporting illegal immigrants is prohibited as 

follows:

Any person who—

(i) knowing that a person is an alien, 

brings to or attempts to bring to the United 

States in any manner whatsoever such 

person at a place other than a designated 

port of entry or place other than as 

designated by the Commissioner, regardless 

of whether such alien has received prior 

official authorization to come to, enter, or 

reside in the United States and regardless of 

any future official action which may be 

taken with respect to such alien; 

(ii) knowing or in reckless disregard 

of the fact that an alien has come to, entered, 

or remains in the United States in violation 

of law, transports, or moves or attempts to 
33

transport or move such alien within the 

United States by means of transportation or 

otherwise, in furtherance of such violation 

of law . . . 

8 U.S.C. § 1324(a)(1)(A)(i)-(ii). When done for 

monetary gain, this is a RICO predicate act. See 18 

U.S.C. § 1961(1)(F).

Plaintiffs allege two types of scenarios that they 

believe constitute transporting: (1) after work crews 

were fired or arrested, alternative work crews were 

quickly made available, often from other states; and (2) 

work crews were transported to work shifts. Even 

assuming that any of these actions – had they been taken 

by Wal-Mart employees – qualify as ―transporting,‖9 

Plaintiffs do not demonstrate that Wal-Mart was 

responsible for the transporting. Plaintiffs do not allege 

that Wal-Mart employees were ever involved in this 

transport. Plaintiffs do not allege specific facts 

demonstrating that Wal-Mart aided and abetted transport. 

Plaintiffs do allege that Wal-Mart managers would 

sometimes request replacement crews, but they simply 

assert that the managers knew those crews would be 

illegal immigrants and that they would be transported 

 

9

Plaintiffs admit, for example, that many workers 

entered the United States on visas and were therefore

entitled to be here but not to work. Transporting such an 

individual would not be illegal.
34

across state lines. Even on a motion to dismiss, we are 

not required to credit mere speculation. See Twombly, 

550 U.S. at 545.

c) Pleading of the RICO 

Encouraging Predicate

Encouraging illegal immigration is prohibited as 

follows:

Any person who—

. . . .

(iv) encourages or induces an alien to 

come to, enter, or reside in the United 

States, knowing or in reckless disregard of 

the fact that such coming to, entry, or 

residence is or will be in violation of law; 

. . .

8 U.S.C. § 1324(a)(1)(A)(iv). When done for monetary 

gain, this is a RICO predicate act. 18 U.S.C. § 

1961(1)(F).

We have held that, to make out a claim of 

―encouraging,‖ Plaintiffs must prove that Wal-Mart 

engaged in an ―affirmative act that served as a catalyst 

for aliens to reside in the United States in violation of 

immigration law when they might not have otherwise.‖ 

DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241, 
35

249 (3d Cir. 2012); see also United States v. Henderson, 

No. 09-10028, 2012 WL 1432552, at *17 (D. Mass. Apr. 

25, 2012) (―[I]n light of the interpretation of the charging 

statute recently provided by the Third Circuit in DelRioMocci, I am satisfied there is no question that those [jury] 

instructions were erroneous because they were too open 

textured and did not require the jury to find substantiality 

to any encouragement or inducement.‖).

Plaintiffs do not allege that they would not or 

could not have resided in the United States without 

having been employed by Wal-Mart. Moreover, while 

the plaintiffs did make allegations against various 

cleaning contractors that might be sufficient to state a 

claim of encouraging, ―the complaint fails to allege, as it 

must, that Wal-Mart took affirmative steps to assist 

Plaintiffs to enter or remain unlawfully in the United 

States, or that Wal-Mart agreed to undertake conduct 

with the purpose of unlawfully encouraging 

undocumented aliens.‖ Zavala, 393 F. Supp. 2d at 308. 

Thus, Plaintiffs cannot show that Wal-Mart‘s conduct 

incited aliens to remain in this country unlawfully when 

they otherwise might not have done so, and they 

therefore have not alleged that the company engaged in 

conduct sufficient to constitute encouraging or inducing.
36

d) Pleading of the RICO 

Harboring Predicate

Harboring illegal immigrants is prohibited as 

follows:

Any person who—

. . . .

(iii) knowing or in reckless disregard 

of the fact that an alien has come to, entered, 

or remains in the United States in violation 

of law, conceals, harbors, or shields from 

detection, or attempts to conceal, harbor, or 

shield from detection, such alien in any 

place, including any building or any means 

of transportation; . . .

8 U.S.C. § 1324(a)(1)(A)(iii). When done for monetary 

gain, this is a RICO predicate act. See 18 U.S.C. § 

1961(1)(F).

Plaintiffs‘ Second Amended Complaint alleges one 

set of facts that could plausibly support a claim of 

harboring. Plaintiffs allege that, at Wal-Mart‘s store in 

Kansas City, Missouri, Wal-Mart allowed 

―undocumented aliens to sleep in a back room in the 

store and to keep their personal belongings there 

knowing (or acting in reckless disregard of the fact) that 
37

they were undocumented aliens[.]‖ Giving Plaintiffs the 

benefit due their complaint on a motion to dismiss, we 

will assume Plaintiffs are alleging that Wal-Mart thereby 

provided housing to these cleaners (rather than simply a 

place to rest).

Even if we assume that these facts support a 

harboring claim, Wal-Mart cannot be held responsible for 

the actions of a single store manager in Missouri in 

allowing illegal immigrants to live in the back of the 

store while working there as cleaners. Plaintiffs do not 

claim that this decision was ratified by Wal-Mart senior 

executives, that it was common practice at Wal-Mart 

stores, or that it was within the manager‘s actual or 

apparent scope of authority. See United States v. 

MacDonald & Watson Waste Oil Co., 933 F.2d 35, 42 

(1st Cir. 1991) (―A corporation may be convicted for the 

criminal acts of its agents, under a theory of respondeat 

superior . . . where the agent is acting within the scope of 

employment.‖); United States v. Demauro, 581 F.2d 50, 

54 n.3 (2d Cir. 1978) (―Under a respondeat superior 

theory of corporate criminal liability, the master‘s 

liability would depend on whether the servant‘s acts were 

within the  ̳scope of the employment.‘ See Prosser, Torts 

351 (1955). As Professor Prosser has described it, to be 

within the scope of the employment, the  ̳servant‘s 

conduct‘ must be  ̳the kind which he is authorized to 

perform, occurs substantially within the authorized limits 

of time and space, and is actuated at least in part, by a 
38

desire to serve the master.‘ Id.‖). Plaintiffs similarly fail 

to allege actions by Wal-Mart that would constitute 

aiding and abetting of harboring.

e) Pleading of the RICO Money 

Laundering Conspiracy Predicate

We agree with Plaintiffs that they have plausibly 

alleged a claim of conspiracy to commit money 

laundering. But a single predicate act is not a pattern of 

predicate acts and therefore cannot support a RICO 

claim. Thus, we agree with the District Court that 

Plaintiffs have failed to state a claim.

Plaintiffs allege that Wal-Mart paid its contractors 

with full knowledge that those contractors were hiring 

illegal immigrants to work in Wal-Mart‘s stores. 

Plaintiffs support this contention with further allegations 

that two senior Wal-Mart executives made comments that 

could be understood as acknowledging that the 

contractors had hired and would continue to hire illegal 

immigrants. In fact, one of these executives encouraged 

one of the cleaning contractors to form multiple 

companies so that contracts and payments could be 

distributed over a greater number of recipients. This 

suggestion was allegedly made shortly after a federal 

immigration sweep resulted in the detention of many of

Wal-Mart‘s cleaners.
39

Money paid to the ―shell‖ companies would 

facilitate the hiring of illegal workers. Because WalMart is alleged to have known that many of those 

workers were illegal and that the companies would 

continue to hire illegal workers in the future, its intent to 

promote such activity can be inferred. Therefore,

Plaintiffs have stated a claim for money laundering 

because Wal-Mart had the ―intent . . . to promote the 

carrying on of specified unlawful activity‖ and 

―conduct[ed] or attempt[ed] to conduct a financial 

transaction involving . . . property used to conduct or 

facilitate specified unlawful activity[.]‖ 18 U.S.C. 

§ 1956(a)(3). Unlike paragraph (a)(1) of the money 

laundering statute, paragraph (a)(3) does not require that 

the money used be the proceeds of illegal activity. 

Instead, the funds can be ―property used to conduct or 

facilitate specified unlawful activity.‖ 18 U.S.C. 

§ 1956(a)(3). And these funds were allegedly used to 

conduct or facilitate the hiring of illegal immigrants.

But one predicate act does not constitute a RICO 

pattern. See 18 U.S.C. § 1961(5) (―[A]  ̳pattern of 

racketeering activity‘ requires at least two acts of 

racketeering activity[.]‖).10 Therefore, we agree with the 

 

10 We note that Plaintiffs, for whatever reason, have only 

pled a conspiracy to commit money laundering, not 

money laundering itself. (A640) Even if we assume that 

acts of money laundering resulted from this conspiracy, 
40

District Court that the Plaintiffs have failed to state a 

claim.

f) Pleading of the RICO 

Immigration Conspiracy Predicates

We have concluded that Plaintiffs‘ allegations are 

insufficient to directly implicate Wal-Mart in the 

predicate acts of transporting, encouraging, or harboring. 

But Plaintiffs do allege facts that might support a 

conclusion that Wal-Mart‘s cleaning contractors engaged 

in these acts. Plaintiffs also allege that Wal-Mart 

conspired with those contractors. They support that 

claim with specific allegations that Wal-Mart executives 

acknowledged that contractors were hiring and would 

continue to hire illegal immigrants and that those 

contractors would continue to be hired by Wal-Mart. At 

most, though, the facts alleged by the Plaintiffs constitute 

a conspiracy with the object of saving money through 

illegal hiring. Even drawing all reasonable inferences in 

their favor, Plaintiffs have not alleged facts sufficient to 

support a conspiracy with the purpose of transporting or 

 

Plaintiffs have not claimed those acts themselves as 

RICO predicates.
41

harboring illegal immigrants or encouraging illegal 

immigration.

11

C. False Imprisonment

Plaintiffs‘ false imprisonment claims survived 

Wal-Mart‘s initial motion to dismiss. Wal-Mart 

subsequently offered affidavits asserting that it locked its 

doors at night to provide security for its staff and 

merchandise, that managers were often available to open 

locked doors, and that Wal-Mart had accessible 

emergency exits, as required by state and federal law. 

Wal-Mart also argued that Plaintiffs‘ repeated return to 

stores where they were ―imprisoned‖ constituted consent. 

 

11 Whether Plaintiffs‘ allegations in fact support claims of 

illegal hiring or conspiracy to commit illegal hiring is not 

before us, and is not an issue we purport to resolve. We 

note, though, that the intent element required for 

establishing an illegal hiring violation is difficult to meet, 

a difficulty recognized by our sister circuits. See, e.g.,

Walters v. McMahen, __ F.3d ____, 2012 WL 2589229, 

at *4 (4th Cir. 2012). Given Plaintiffs‘ failure to plead a 

conspiracy to commit illegal hiring (and the insufficiency 

of Plaintiffs‘ allegations with respect to the conspiracies 

they did plead), we also have no occasion to consider 

whether predicate acts committed by co-conspirators in 

foreseeable furtherance of an alleged conspiracy 

predicate would themselves be RICO predicate acts. Cf. 

Pinkerton v. United States, 328 U.S. 640 (1946).
42

In response, Plaintiffs: (1) cited specific instances where 

they wanted to leave and managers were unavailable or 

refused to let them leave; (2) noted that no one ever 

showed them the location of emergency exits and their 

minimal proficiency in English would make it difficult or 

impossible to find them on their own; and (3) argued that 

Wal-Mart had an interest in concealing emergency exits 

to prevent theft of merchandise and discovery of the 

illegal workers by federal agents. On summary 

judgment, the District Court found Wal-Mart‘s assertions 

regarding the presence of emergency exits dispositive, as 

false imprisonment cannot occur where there is a safe 

alternative exit. Zavala v. Wal-Mart Stores, Inc., No. 03-

5309, 2011 WL 1337476 (D.N.J. Apr. 7, 2011). We

agree with the District Court‘s conclusion, though we 

will expand on the District Court‘s analysis.

Federal Rule of Civil Procedure 56 requires the 

court to render summary judgment ―if the movant shows 

that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of 

law.‖ Fed. R. Civ. P. 56(a). ―[T]his standard provides 

that the mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly 

supported motion for summary judgment; the 

requirement is that there be no genuine issue of material 

fact.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48 (1986). An issue of material fact is ―genuine‖ if 

the evidence is such that a reasonable jury could return a 
43

verdict for the nonmoving party. See id. at 257. ―We 

exercise plenary review over a District Court‘s grant of 

summary judgment and review the facts in the light most 

favorable to the party against whom summary judgment 

was entered.‖ Beers-Capitol v. Whetzel, 256 F.3d 120, 

130 n.6 (3d Cir. 2001).

As this is a state law claim, the first question to be 

resolved is: what state law should be applied? After 

performing a choice-of-law analysis, the District Court 

applied New Jersey law. Zavala, 393 F. Supp. 2d at 333. 

We believe the District Court was correct in its choice of 

New Jersey law, and Plaintiffs do not dispute its 

application.

The majority of Plaintiffs‘ false imprisonment 

claims fail because Plaintiffs impliedly consented to their 

―imprisonment.‖ Apparently from the very beginning of 

their employment, Plaintiffs were aware that Wal-Mart‘s 

policy was to close and lock the main doors of its stores

when they are not open for business. Plaintiffs 

nevertheless chose to continue coming to work. They do 

not allege that they objected to the locked-door policy, 

nor do they allege that they requested a manager be 

available during their shift to open the doors. Continuing 

to come to work under these conditions is ―conduct . . . 

reasonably understood by another to be intended as 

consent‖ and is therefore ―as effective as consent in fact.‖ 
44

Restatement (Second) of Torts § 892.12 As such, 

Plaintiffs ―cannot recover in an action of tort for the 

conduct or for harm resulting from it.‖ Id. at § 892A.

But consent can be withdrawn, and Plaintiffs 

allege two instances when they wanted to leave but were 

unable to do so. Teresa Jaros alleges that she was sick 

and wanted to leave, but no manager was available to 

open the door. Petr Zednik alleges that he had a 

toothache, asked to leave, and was told he could not. He 

also alleges that he believed his manager, a ―muscular‖ 

―blond‖ man, would assault him if he attempted to leave.

Jaros‘ consent likely encompasses the incident she 

alleges. By the time of her illness, she knew that she 

must work in a locked store for the duration of the shift. 

She knew that a manager would often be absent and 

therefore unable to open the door should a problem arise. 

(PSA211) Her consent arguably includes that aspect of 

her work. Consent only terminates ―when the actor 

 

12 The New Jersey courts make frequent use of the

Restatement, including in resolving false imprisonment 

cases. See, e.g., Freeman v. State, 788 A.2d 867, 877 

(N.J. Super. Ct. App. Div. 2002); Fair Oaks Hosp. v. 

Pocrass, 628 A.2d 829, 836 (N.J. Super. Ct. Law Div. 

1993). We have not seen any indication that the portions

of the Restatement upon which we rely are contrary to 

New Jersey law.
45

knows or has reason to know that the other is no longer 

willing for him to continue the particular conduct.‖ 

Restatement (Second) of Torts § 892A cmt. h. Since 

Wal-Mart was unaware that Jaros wanted to leave 

(because no manager was there), Jaros could not 

terminate her consent.

Regardless, Jaros‘ complaint and Zednik‘s 

complaint are resolved by the availability of emergency 

exits. ―To make the actor liable for false imprisonment, 

the other‘s confinement within the boundaries fixed by 

the actor must be complete. . . . The confinement is 

complete although there is a reasonable means of escape, 

unless the other knows of it.‖ Restatement (Second) of 

Torts § 36. While both Jaros and Zednik disclaim 

knowledge of the emergency exits, such knowledge is 

properly imputed to them, even over their proclaimed 

ignorance and even on summary judgment. Federal Rule 

of Evidence 201 permits judicial notice of facts 

―generally known within the trial court‘s territorial 

jurisdiction‖ and we have noted that this includes 

―matters of common knowledge.‖ See Gov’t of Virgin 

Islands v. Gereau, 523 F.2d 140, 147 (3d Cir. 1975). 

Courts have used judicial notice to establish facts in 

similar situations. See Williams v. Kerr Glass Mfg. 

Corp., 630 F. Supp. 266, 270 (E.D.N.Y. 1986) (taking 

judicial notice of the distance between federal courts in 

New York and Pennsylvania and the numerous means of 

transportation between them); Penthouse Int’l, Ltd. v. 
46

Koch, 599 F. Supp. 1338, 1346 (S.D.N.Y. 1984) (taking 

judicial notice of the ―layout and physical characteristics‖ 

of the New York City subway system, which the judge 

rode daily to work).

Emergency exits are by regulation a common 

feature of commercial buildings in the United States. We 

agree with the District Court that ―it appears . . . 

indisputable that these emergency exits are required by 

law to be clearly marked, easily accessible, and 

unobstructed.‖ Zavala, No. 03-5309, 2011 WL 1337476, 

at *1 (internal quotation marks omitted). We conclude 

that Jaros and Zednik must have been aware of the 

existence of emergency exits as a general feature of 

buildings, and therefore they must have been aware that 

emergency exits were likely to exist in the stores in 

which they worked. A reasonable jury could not 

conclude otherwise.

The question remaining is whether emergency 

exits were in fact available and unobstructed at the WalMart stores in question. Wal-Mart has offered evidence 

of the availability and unobstructed nature of emergency 

exits in its stores. Plaintiffs have not directly rebutted 

this evidence. They have merely offered speculation that 

Wal-Mart had motive to conceal any emergency exits. 

But Plaintiffs do not actually demonstrate that the exits 

were absent or obstructed in any way. Judgment in favor

of Wal-Mart is appropriate.
47

Plaintiffs cannot succeed by advancing a defense 

that leaving through the emergency exit would trigger an 

alarm or potentially result in the loss of their jobs. 

Regarding the alarm, ―it is unreasonable for one whom 

the actor intends to imprison to refuse to utilize a means 

of escape of which he is himself aware merely because it 

entails a slight inconvenience[.]‖ Restatement (Second) 

of Torts § 36 cmt. a; Richardson v. Costco Wholesale 

Corp., 169 F. Supp. 2d 56, 61 (D. Conn. 2001) (―The fact 

that opening the employee exit door would result in an 

alarm sounding and possible employee discipline does 

not give rise to an inference that actual confinement or 

threatening conduct took place.‖). Nor is potential loss 

of employment a sufficient threat to constitute false 

imprisonment. See Maietta v. United Parcel Serv., Inc., 

749 F. Supp. 1344, 1367 (D.N.J. 1990) (concluding an 

employee‘s concern that he would lose his job if he 

exited an interview with company investigators was 

insufficient to support a claim for false imprisonment 

under New Jersey law), aff’d 932 F.2d 960 (3d Cir. 

1991); Richardson, 169 F. Supp. 2d at 61-62 (―Moral 

pressure or threat of losing one‘s job does not constitute a 

threat of force sufficient to establish that plaintiffs were 

involuntarily restrained.‖).

The only remaining issue is Zednik‘s claim that 

when he approached his manager and was denied 

permission to leave, he ―knew that [the manager] would 

assault [him] if [Zednik] tried to escape through any door 
48

that would let [him] out.‖ Zednik asserts that the 

manager wanted the store clean for the impending visit of

a Wal-Mart executive. But Zednik‘s sole evidence of the 

manager‘s supposed violent tendencies is that the 

manager ―is a muscular man (with blond hair)[.]‖ We 

need not credit this statement in any way.

In an earlier declaration, Zednik relates the 

toothache story and the request made to and denied by 

his manager, but curiously omits any belief that his 

manager would assault him. It is only in his third 

supplemental declaration – filed only a few weeks after

Wal-Mart moved for summary judgment – that Zednik 

mentions the prospect that his manager might randomly 

assault him. Even on summary judgment, we need not 

credit a declaration contradicting a witness‘ prior sworn 

statements. See Martin v. Merrell Dow Pharms., Inc., 

851 F.2d 703, 705 (3d Cir. 1988); see also Jiminez v. All 

Am. Rathskeller, Inc., 503 F.3d 247, 251-54 (3d Cir. 

2007) (discussing the sham affidavit doctrine). While not 

precisely contradictory, Zednik‘s omission of such a 

crucial fact is highly questionable.

But even absent these suspicious circumstances, 

we conclude that no reasonable jury could credit 

Zednik‘s speculative statement that his manager would 

assault him had he tried to leave. Zednik offers no 

evidence in support of the statement. He does not allege 

that the manager had a propensity for violence. And he 
49

does not allege that the manager overtly or impliedly 

threatened him. Thus, summary judgment was 

appropriate.

V. Conclusion

Over the course of eight years and a minimum of 

four opinions, the District Court rejected final 

certification of an FLSA class, rejected the RICO claim 

on several grounds, and rejected the false imprisonment 

claim on the merits. We will affirm.