2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-8-2003

DeAsencio v. Tyson Foods Inc

Precedential or Non-Precedential: Precedential

Docket No. 02-3719

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PRECEDENTIAL

Filed September 8, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3719

MELANIA FELIX DE ASENCIO;

MANUEL A. GUTIERREZ; ASELA RUIZ;

EUSEBIA RUIZ; LUIS A. VIGO; LUZ CORDOVA;

HECTOR PANTAJOS, ON BEHALF OF THEMSELVES

AND ALL OTHER SIMILARLY SITUATED INDIVIDUALS

v.

TYSON FOODS, INC.,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 00-cv-04294

(Honorable Robert F. Kelly)

Argued April 24, 2003

Before: SCIRICA, Chief Judge,* AMBRO and

GARTH, Circuit Judges

(Filed September 8, 2003)

* Judge Scirica began his term as Chief Judge on May 4, 2003. 
MICHAEL J. MUELLER, ESQUIRE

(ARGUED)

Akin, Gump, Strauss, Hauer & Feld

1333 New Hampshire Avenue, N.W.

Suite 400

Washington, D.C. 20036

Attorney for Appellant

FREDERICK P. SANTARELLI,

ESQUIRE (ARGUED)

THOMAS J. ELLIOTT, ESQUIRE

ERIC L. YOUNG, ESQUIRE

Elliott, Reihner, Siedzikowski

& Egan

925 Harvest Drive, Suite 300

Blue Bell, Pennsylvania 19422

Attorneys for Appellees

OPINION OF THE COURT

SCIRICA, Chief Judge. 

In a labor dispute over unpaid wages, plaintiffs gained

certification of an opt-in class under the Fair Labor

Standards Act and then sought certification of a Fed. R.

Civ. P. 23(b)(3) opt-out class under the Pennsylvania Wage

Payment & Collection Law. The District Court granted the

Rule 23 certification. At issue is whether the District Court

should have exercised supplemental jurisdiction over the

state-law class under 28 U.S.C. § 1367. 

I.

A.

Plaintiffs are hourly employees at defendant Tyson Foods’

two chicken-processing plants in New Holland,

Pennsylvania (Lancaster County). Plant One employees

work on the production line slaughtering birds and

producing meat for direct sale or further processing. Those

2
at Plant Two process the chicken meat, producing

prepared, packed chicken products, like chicken nuggets,

chicken tenders, chicken patties, and Buffalo wings. 

Animal flesh, blood, and fecal matter are present

throughout both plants. To protect against disease and

safety hazards, Tyson employees are required to perform

“donning, doffing, and sanitizing” activities. This entails

putting on protective clothing—like hairnets, earplugs,

safety goggles, cotton smocks, gloves, and plastic aprons—

before the start of their shift, and rinsing their clothing and

washing their hands at the end of their shift. Employees

receive two unpaid 30-minute meal periods per shift, and

must don, doff, and sanitize at the beginning and end of

these breaks.1

Tyson ordinarily does not pay its employees for time

spent donning and doffing.2 The plaintiff employees are not

organized nor do they work under a written contract. There

is no collective bargaining.

B.

In August 2000, plaintiffs filed suit against Tyson under

both federal law (the Fair Labor Standards Act, 29 U.S.C.

§§ 201-219) and state law (the Pennsylvania Wage Payment

& Collection Law, 43 P.S. §§ 260.1-260.45) on behalf of

themselves and similarly situated co-workers at Tyson’s

chicken processing complex. 

On October 4, plaintiffs sought collective treatment of

their FLSA action under the federal statute’s opt-in

provisions. 29 U.S.C. § 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 such

consent is filed in the court in which such action is

1. Tyson cites significant differences among its hourly employees,

contending they wear different clothing, resulting in time variations for

donning and doffing. The parties agree there are at least four categories

under which Tyson calculates employee working times, depending on the

type of work and where they work on the production line. 

2. Tyson pays for donning and doffing in two limited instances, which are

not relevant here. 

3
brought.”). Plaintiffs did not seek class certification on the

state-law WPCL action at that time. 

On January 31, 2001, the District Court granted

plaintiffs’ request to issue notice to prospective class

members under the FLSA action. The court’s notice stated,

in part, “The Court has not yet determined that the claims

under the Pennsylvania WPCL can be pursued as a class

action, and thus your right to participate in that claim will

depend on a later decision by the Court.” 

On March 15, Tyson mailed out the notice to 3,400

prospective FLSA class members. On June 21, Tyson filed

a motion to close the class period. At that time, 502 current

and former employees—or 15 percent of the allegedly

eligible class—had elected to join the FLSA action by filing

written consent forms. Plaintiffs contested the motion to

close, claiming that a substantial number of prospective

plaintiffs never received notice and that Tyson improperly

discouraged its current and former employees from

participating in the action. The record showed that 783

putative FLSA class members never received notice of the

opt-in action because Tyson mailed the notice to the wrong

address.3

On July 24, the District Court closed the class period

and denied plaintiffs’ motion to reissue notice. The class

consisted of 504 current and former employees. The

District Court later dismissed, on summary judgment, the

claims of 57 of those employees as barred by the statute of

limitations. All parties acknowledge that the current size of

the FLSA class is 447 persons. 

On December 31, the District Court closed discovery.

Nearly two months later, on February 22, 2002, plaintiffs

filed a motion to certify the supplemental state-law WPCL

action under Fed. R. Civ. P. 23. Plaintiffs’ motion for class

treatment under the supplemental state-law action was

filed 17 months after their motion to certify the federal

FLSA action. The District Court heard arguments on

3. Additional putative FLSA class members allegedly never received

notice of the opt-in class because they had not been employed by Tyson

at the time the notice was sent. 

4
whether plaintiffs could bring a WPCL action because they

had not pleaded a contract claim, the predicate for a WPCL

action. On May 14, plaintiffs argued for the first time that

the WPCL action was grounded in an implied contract

between Tyson and its hourly employees.4

On July 17, despite Tyson’s objections that the WPCL

certification motion was late and that the implied contract

argument was new, the District Court granted plaintiffs’

motion to certify the state WPCL action under Fed. R. Civ.

P. 23(b)(3).5 The state-law class, an opt-out class, consisted

of approximately 4,100 persons, including approximately

700 employees hired after notice was sent to the FLSA

class. 

The District Court had subject matter jurisdiction over

plaintiffs’ FLSA action under 28 U.S.C. § 1331 and

exercised supplemental jurisdiction over plaintiffs’ state-law

action under 28 U.S.C. § 1367. Tyson disputes the District

Court’s exercise of supplemental jurisdiction. Tyson

petitioned for leave to appeal the certification order under

Fed. R. Civ. P. 23(f), which was granted. We have

jurisdiction over the interlocutory appeal under 28 U.S.C.

§ 1292(e) and Fed. R. Civ. P. 23(f).

4. Tyson avers it has made no promise to pay its employees for donning

and doffing time. 

5. The Pennsylvania Wage Payment & Collection Law provides: 

Actions by an employe, labor organization, or party to whom any

type of wages is payable to recover unpaid wages and liquidated

damages may be maintained in any court of competent jurisdiction,

by such labor organization, party to whom any type of wages is

payable or any one or more employes for and in behalf of himself or

themselves and other employes similarly situated, or such employe

or employes may designate an agent or representative to maintain

such action or on behalf of all employes similarly situated. Any such

employe, labor organization, party, or his representative shall have

the power to settle or adjust his claim for unpaid wages. 

43 P.S. § 260.9a(b). 

5
II.

A.

In 1938, Congress enacted the Fair Labor Standards Act

to govern the maintenance of standard hour and wage

practices. The FLSA requires employers to pay their

employees at least a specified minimum hourly wage for

work performed, 29 U.S.C. § 206, and to pay one and onehalf times the employee’s regular rate of pay for hours

worked in excess of forty hours per week, 29 U.S.C. § 207.

Employers who violate these provisions are “liable to the

employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime

compensation, as the case may be, and in an additional

equal amount as liquidated damages.” 29 U.S.C. § 216(b). 

The legislation propelled thousands of portal-to-portal

lawsuits. The term “portal to portal” represents an

employee’s work day from starting time to quitting time.

Jewell Ridge Coal Corp. v. United Mine Workers, 325 U.S.

161, 188 (1945) (Jackson, J., dissenting); Connors v. Beth

Energy Mines, Inc., 920 F.2d 205, 208 (3d Cir. 1990) (work

day was eight hours from portal-to-portal including thirty

minutes for lunch). Between July 1, 1946 and January 31,

1947, employees around the country filed 1,913 such

actions under the FLSA. 93 Cong. Rec. 2,082 (1947). 

The dramatic increase in these suits was a result of the

Supreme Court’s decision in Anderson v. Mount Clemens

Pottery Co., 328 U.S. 680 (1946), which expanded the scope

of compensable “working time” for FLSA purposes. See 93

Cong. Rec. 2,089 (1947) (“[W]hat is the cause of this

widespread litigation? The immediate incident which

apparently brought this vast flood of litigation upon our

nation was the decision of the Supreme Court [in

Anderson].”). Responding to this increase in litigation,

Congress sought “to define and limit the jurisdiction of the

courts” through the Portal-to-Portal Act, Pub. L. No. 80-49,

ch. 52, § 1(b)(3), 61 Stat. 85 (1947). 93 Cong. Rec. 2,087

(1947) (“[T]he attention of the Senate is called to a dramatic

influx of litigation, involving vast alleged liability, which has

suddenly entered the Federal courts of the Nation.”). Noting

6
the “immensity of the [litigation] problem,” id. at 2,082,

Congress attempted to strike a balance to maintain

employees’ rights but curb the number of lawsuits. Under

the Portal-to-Portal Act, an FLSA action for overtime pay

could be maintained by “one or more employees for and in

behalf of himself or themselves and other employees

similarly situated.” 29 U.S.C. § 216(b). But the statute

contained an express opt-in provision: “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.” Id. 

Because the Portal-to-Portal Act amendment changed

participation in an FLSA class from “opt-out” to “opt-in,”

FLSA plaintiffs could not certify a class under Fed. R. Civ.

P. 23, even though federal subject matter jurisdiction

obtained. E.g., Lusardi v. Lechner, 855 F.2d 1062, 1068 n.8

(3d Cir. 1988) (“Courts have generally recognized that Rule

23 class actions may not be used under FLSA § 16(b).”); 5

James Wm. Moore et al., Moore’s Federal Practice § 23.06[1]

(3d ed. 2003) (“Rule 23 is inapplicable to class proceedings

under the FLSA.”). The principal difference between FLSA

class actions and Fed. R. Civ. P. 23 class actions is that

prospective plaintiffs under the FLSA must consent to join

the class. 

As noted, plaintiffs here obtained federal court

jurisdiction when they filed a FLSA action, alleging that

Tyson was liable to pay its employees for time spent

donning and doffing. The District Court ordered notice to

prospective class members and later certified a class of 504

persons who consented in writing to become party plaintiffs.6

The certification of this class is not problematic. But Tyson

contends plaintiffs obtained federal jurisdiction, then used

their supplemental state-law WPCL action and Fed. R. Civ.

P. 23’s opt-out provisions as an end run around the Portal6. As noted, the current number of eligible plaintiffs in the FLSA class is

447. 

7
to-Portal Act’s clear congressional mandate in favor of

collective opt-in actions.7

B.

At issue is whether the District Court properly exercised

supplemental jurisdiction over the state-law WPCL opt-out

action.

In 1990, Congress broadened district courts’ ability to

exercise supplemental jurisdiction over non-federal claims.

28 U.S.C. § 1367.8 The statute explicitly provided for

7. Plaintiffs argue Congress did not intend the Portal-to-Portal Act

amendments to affect state-law actions. They cite legislative history that

“[a]ctions under the common law, or under State statutes for recovery of

wages are not affected” by the Act. H.R. Rep. No. 71 (1947), reprinted in

1947 U.S.C.C.A.N. 1029, 1035. But plaintiffs’ reference to the legislative

history is misplaced. The cited statement pertained directly to the Act’s

imposition of a one-year statute of limitations on FLSA actions. See

Univs. Research Ass’n v. Coutu, 450 U.S. 754, 781 n.34 (1981) (“Senator

McGrath’s statement strongly suggests that the limitations period of the

Portal-to-Portal Act was designed to apply to the explicit statutory

remedy set forth in the Davis-Bacon Act.”). It did not coincide with the

Act’s provision that requires parties’ consent to a collective action. 

8. 28 U.S.C. § 1367(a-c) provides: 

(a) Except as provided in subsections (b) and (c) or as expressly

provided otherwise by Federal statute, in any civil action of which the

district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part

of the same case or controversy under Article III of the United States

Constitution. Such supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional parties. 

(b) In any civil action of which the district courts have original

jurisdiction founded solely on section 1332 of this title, the district

courts shall not have supplemental jurisdiction under subsection (a) over

claims by plaintiffs against persons made parties under Rule 14, 19, 20,

or 24 of the Federal Rules of Civil Procedure, or over claims by persons

proposed to be joined as plaintiffs under Rule 19 of such rules, or

seeking to intervene as plaintiffs under Rule 24 of such rules, when

exercising supplemental jurisdiction over such claims would be

inconsistent with the jurisdictional requirements of section 1332. 

8
supplemental jurisdiction for “claims that involve the

joinder or intervention of additional parties.” Id.

9

Supplemental jurisdiction was not available where

“expressly provided otherwise by Federal statute” or under

one of the statute’s enumerated exceptions. Id. 

Section 1367 combined older notions of pendent

jurisdiction and ancillary jurisdiction. Under the statute,

which codified many of the principles enunciated in United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), a district

court may exercise supplemental jurisdiction where statelaw claims share a “common nucleus of operative fact” with

the claims that supported the district court’s original

jurisdiction. Id.; see also 28 U.S.C. § 1367(a); Krell v.

Prudential Ins. Co. of Am. (In re Prudential Ins. Co. Am.

Sales Practice Litig. Agent Actions), 148 F.3d 283, 303 (3d

Cir. 1998) (Section 1367 “does not permit courts to take

jurisdiction over tangentially related claims. The issue is

whether there is a ‘common nucleus of operative fact’ and

whether the claims are part of the ‘same case or

controversy under Article III.’ ”). Supplemental jurisdiction

promotes “judicial economy, convenience and fairness to

litigants.” Gibbs, 383 U.S. at 726. 

Under section 1367, a district court has authority to

exercise supplemental jurisdiction over non-federal claims

(c) The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if— 

(1) the claim raises a novel or complex issue of State law, 

(2) the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction, 

(3) the district court has dismissed all claims over which it has

original jurisdiction, or 

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction. 

9. Moreover, the Federal Rules of Civil Procedure permit joinder where

parties asserted “any right to relief . . . and if any question of law or fact

common to all these persons will arise in the action.” Fed. R. Civ. P.

20(a). 

9
arising from the same case or controversy as the federal

claim. Here, the District Court determined the FLSA and

WPCL actions arose from the same controversy and shared

a common nucleus of operative fact. This ruling was not an

abuse of discretion. Where “the same acts violate parallel

federal and state laws, the common nucleus of operative

facts is obvious.” Lyon v. Whisman, 45 F.3d 758, 761 (3d

Cir. 1995). The FLSA and WPCL are parallel federal and

state laws and the independent actions both address

whether Tyson’s employees should be paid for donning and

doffing time, sufficiently demonstrating a common nucleus

of operative fact. 

Still, section 1367 provides specific exceptions to

supplemental jurisdiction. There is no supplemental

jurisdiction where a federal statute expressly provides

otherwise, either through direct preclusion or preemption of

state-law claims.10 28 U.S.C. § 1367(a).11 There are also

explicit circumstances under which a district court may

decline to exercise supplemental jurisdiction. 28 U.S.C.

§ 1367(c). At issue is whether this case involves one of

those circumstances. 

A district court has the responsibility to manage complex

litigation. That responsibility requires a court to determine

10. In certain federal statutes, Congress has expressly provided for the

preemption of state-law claims. E.g., Airline Deregulation Act of 1978, 49

U.S.C. § 41713(b)(1). But Congress did not do so here. 

11. Moreover, although not relevant here, federal courts do not have

subject-matter jurisdiction over certain pendent state-law claims where

original jurisdiction is based on diversity rather than a federal question:

In any civil action of which the district courts have original

jurisdiction founded solely on section 1332 of this title, the district

courts shall not have supplemental jurisdiction under subsection (a)

over claims by plaintiffs against persons made parties under Rule

14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over

claims by persons proposed to be joined as plaintiffs under Rule 19

of such rules, or seeking to intervene as plaintiffs under Rule 24 of

such rules, when exercising supplemental jurisdiction over such

claims would be inconsistent with the jurisdictional requirements of

section 1332. 

28 U.S.C. § 1367(b). 

10
whether to exercise supplemental jurisdiction over pendent

claims and parties. In enacting section 1367, Congress

intended to enhance a district court’s ability to gain

jurisdiction over pendent claims and parties while providing

those courts with the discretion to decline to exercise

supplemental jurisdiction in several express circumstances.

“It has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not of plaintiff ’s

right.” Gibbs, 383 U.S. at 726. 

Because the FLSA does not expressly address

supplemental jurisdiction, we consider the explicit statutory

circumstances enunciated in section 1367(c) under which a

district court may decline to exercise supplemental

jurisdiction. In codifying much of Gibbs, Congress granted

district court judges discretion to determine whether to

exercise supplemental jurisdiction. 28 U.S.C. § 1367(c); see

also New Rock Asset Partners v. Preferred Equity

Advancements, Inc., 101 F.3d 1492, 1507 n.11 (3d Cir.

1996) (discretion in district court judges helps promote the

economical resolution of cases). District courts may decline

to exercise supplemental jurisdiction where: 

(1) the claim raises a novel or complex issue of State

law, 

(2) the claim substantially predominates over the

claim or claims over which the district court has

original jurisdiction, 

(3) the district court has dismissed all claims over

which it has original jurisdiction, or 

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction. 

28 U.S.C. § 1367(c)(1-4).12

12. Subsection (3) is not relevant here since the District Court has not

dismissed the FLSA action. We do not reach subsection (4), although it

may be relevant. Congress provided that a District Court may decline to

exercise supplemental jurisdiction where “in exceptional circumstances,

there are other compelling reasons for declining jurisdiction.” 28 U.S.C.

§ 1367(c)(4). 

11
The dispositive provision here appears to focus on

whether the state-law action substantially predominates

over the FLSA action. Where “the state issues substantially

predominate, whether in terms of proof, of the scope of the

issues raised, or of the comprehensiveness of the remedy

sought, the state claims may be dismissed without

prejudice and left for resolution to state tribunals.” Gibbs,

383 U.S. at 726. Generally, a district court will find

substantial predomination “where ‘a state claim constitutes

the real body of a case, to which the federal claim is only

an appendage’—only where permitting litigation of all

claims in the district court can accurately be described as

allowing a federal tail to wag what is in substance a state

dog.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 789

(3d Cir. 1995) (citation omitted) (quoting Gibbs, 383 U.S. at

727). 

Our inquiry here centers on the terms of proof and the

scope of the issues raised in the FLSA and WPCL actions.13

As we have held, the WPCL “ ‘does not create a right to

compensation . . . . [r]ather, it provides a statutory remedy

when the employer breaches a contractual obligation to pay

earned wages. The contract between the parties governs in

determining whether specific wages are earned.’ ” Antol v.

Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996) (quoting

Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990)).

Because Tyson’s employees do not work under an

employment contract or a collective bargaining agreement,

plaintiffs will have to establish the formation of an implied

oral contract between Tyson and its employees. Even then,

whether an implied contract may give rise to a claim under

the WPCL has never been addressed by the Pennsylvania

state courts and will require additional testimony and proof

to substantiate beyond that required for the FLSA action.14

13. There are some differences in the comprehensiveness of the federal

and state remedies as well since the FLSA remedy is only for overtime

pay and the WPCL remedy is broader. And, as discussed infra, the WPCL

claim may be dismissed without prejudice here and left for resolution to

state tribunals. These factors further support a finding of substantial

predomination by the WPCL claim under Gibbs, but our focus here is on

the terms of proof and scope of the issues raised. 

14. A federal court could have subject matter jurisdiction over two

federal claims, one requiring opt-in and the other opt-out. For example,

12
Given the importance of the wage-protection legal scheme

in Pennsylvania, the scope of the state issues may

substantially predominate over the more straightforward

federal scheme. 

Another countervailing interest in relegating the WPCL

claims here to state court is Congress’s express preference

for opt-in actions for the federal cause of action. Congress’s

interest in these matters is manifest. For policy reasons

articulated in the legislative history, Congress chose to limit

the scope of representative actions for overtime pay and

minimum wage violations. 

But the interest in joining these actions is strong as well.

As noted, the actions share a common nucleus of operative

fact and they arise from the same case or controversy.

Moreover, joinder would permit the District Court to

efficiently manage the overall litigation. Were supplemental

jurisdiction not to obtain, and assuming the statute of

limitations has not run, plaintiffs could file the WPCL

action in state court and request an opt-out class on behalf

of themselves and “other employes similarly situated.” 43

P.S. § 260.9a(b).15

a federal employment discrimination action might be brought by a

plaintiff class that also maintains an FLSA overtime pay action against

their employer. But the outcome may be different where one of the

claims is based in state law. Federal courts are courts of limited

jurisdiction. Where a party seeks supplemental jurisdiction of a state-law

action, we will evaluate jurisdiction under the statutory principles of 28

U.S.C. § 1367. 

15. Pennsylvania law provides for a modified opt-out class: 

(a) Except as provided in subdivision (b) or as otherwise provided by

the court, in certifying a plaintiff class or subclass the court shall state

in its order that every member of the class is included unless by a

specified date a member files of record a written election to be excluded

from the class. 

(b) If the court finds that 

(1) the individual claims are substantial, and the potential

members of the class have sufficient resources, experience and

sophistication in business affairs to conduct their own litigation; or

13
As we analyze the different levels of proof required and

the relevant federal and state interests, the disparity in

numbers here gives us pause. In terms of the number of

plaintiffs, the sheer difference in numbers between the two

prospective classes, 447 as opposed to 4,100, may

constitute substantial predomination by the state WPCL

action under section 1367. 

Generally, the distinction between opt-in and opt-out

classes is crucial. Under most circumstances, the opt-out

class will be greater in number, perhaps even exponentially

greater. Opt-out classes have numbered in the millions. See

In re Prudential, 148 F.3d at 289-90. The aggregation of

claims, particularly as class actions, profoundly affects the

substantive rights of the parties to the litigation. Notably,

aggregation affects the dynamics for discovery, trial,

negotiation and settlement, and can bring hydraulic

pressure to bear on defendants. The more aggregation, the

greater the effect on the litigation. 

But the size of a prospective class is important for

another reason. Within the universe of possible claimants,

it determines how many prospective plaintiffs remain

outside the class structure who are able to bring their own

individual suits. A large class with few claimants with

viable claims remaining outside is more likely to result in a

resolution bringing “global peace.” Conversely, a smaller

class in relation to the universe of possible claimants,

usually the result of an opt-in structure, will leave open the

possibility of more suits, assuming these are actions that

can be maintained individually. 

We do not tout the relative merits of either approach. For

our purposes, it is sufficient to note that mandating an opt-

(2) other special circumstances exist which are described in the

order, 

the court may state in its order that a person shall not be a member of

the plaintiff class or subclass unless by a specified date the person files

of record a written election to be included in the class or subclass. 

Pa. R. Civ. P. 1711. 

14
in class or an opt-out class is a crucial policy decision.

Congress has selected an opt-in class for FLSA actions.16

Predomination under section 1367 generally goes to the

type of claim, not the number of parties involved. But the

disparity in numbers of similarly situated plaintiffs may be

so great that it becomes dispositive by transforming the

action to a substantial degree, by causing the federal tail

represented by a comparatively small number of plaintiffs

to wag what is in substance a state dog.

Within the section 1367(c) analysis, certain issues of

state law presented in the WPCL action also weigh heavily,

tilting the balance against the exercise of supplemental

jurisdiction. Pennsylvania courts have not addressed two

novel and complex questions of state law squarely

presented here: whether a WPCL action may rest on an

implied employment contract that relies on alleged oral

representations by Tyson managers; and whether the WPCL

pertains to at will, non-collective bargaining employees. The

need to resolve these issues, which are better left to the

Pennsylvania state courts, weighs in favor of declining

supplemental jurisdiction. 28 U.S.C. § 1367(c)(1).

Whether the allegations of an implied employment

contract run to the entire WPCL class is also in dispute and

would implicate the predominance inquiry of Fed. R. Civ. P.

23(b)(3). “In cases involving implied contracts of

employment, the litigant will be able to reach the jury only

if he can clearly show that he and the employer intended to

form a contract.” DiBonaventura v. Consolidated Rail Corp.,

539 A.2d 865, 868 (Pa. Super. Ct. 1988). Because the FLSA

claim does not require an intent to form a contract,

individual questions of implied contract formation with

respect to each member of the WPCL class might

conceivably predominate over the issues common to the

claims of the FLSA plaintiffs.

16. Similarly, Congress has selected an opt-in class for actions under the

Age Discrimination in Employment Act. See Sperling v. Hoffman-LaRoche,

Inc., 24 F.3d 463, 464 (3d Cir. 1994) (“Section 7(b) of ADEA expressly

borrows the opt-in class mechanism of section 16(b) of the Fair Labor

Standards Act of 1938.”). As noted, in the absence of contrary

congressional mandates, class actions in federal court are governed by

Fed. R. Civ. P. 23. 

15
We review a district court’s exercise of supplemental

jurisdiction for abuse of discretion. See Lyon, 45 F.3d at

760 (“[I]t is possible that even if the district court had the

power to hear the supplemental claims, it abused its

discretion in doing so.”). In exercising supplemental

jurisdiction over the WPCL action here, the District Court

held that “adding extra class members alone, whose

interests will be represented by the named Plaintiffs, will

not make the state law claims predominate. Regardless of

the number of class members, the named plaintiffs will

represent all of those with an FLSA claim or a WPCL claim.”

De Asencio v. Tyson Foods, Inc., 2002 U.S. Dist. LEXIS

13038, at *16 (E.D. Pa. July 17, 2002). 

But whether the same group of named plaintiffs

represent both the state and federal classes is not

dispositive under Gibbs. Instead, a court must examine the

scope of the state and federal issues, the terms of proof

required by each type of claim, the comprehensiveness of

the remedies, and the ability to dismiss the state claims

without prejudice to determine whether the state claim

constitutes the real body of the case. This necessarily is a

case-specific analysis. Here, the inordinate size of the statelaw class, the different terms of proof required by the

implied contract state-law claim, and the general federal

interest in opt-in wage actions suggest the federal action is

an appendage to the more comprehensive state action. 

We also are mindful of the unique circumstances

surrounding this litigation. On August 22, 2000, plaintiffs

filed this suit. The complaint included both the FLSA and

WPCL causes of action. On October 4, 2000, plaintiffs

sought collective action treatment of their FLSA claim but

did not seek certification of a class on the WPCL claim. It

was not until nearly 17 months later, on February 22,

2002, after the District Court had closed the FLSA class

period and ended discovery, that plaintiffs filed a motion to

certify a class on the WPCL claim. Moreover, it was not

until May 14, 2002, that plaintiffs first raised their implied

contract theory to support the WPCL claim. 

The way in which this suit evolved lends even greater

credence to the conclusion that certification of the state-law

class was plaintiffs’ second line of attack when the FLSA

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opt-in period yielded a smaller than desired federal class.

This may be proper strategy where the state and federal

actions raise similar issues and require similar terms of

proof. But here, the state interest in whether plaintiffs may

prevail on an implied contract WPCL action is

disproportionately high.17

Accordingly, we find the District Court did not exercise

sound discretion in granting supplemental jurisdiction over

the WPCL action.18

III.

Of the approximately 3,400 FLSA notices that Tyson

mailed to current or former employees, nearly 800 of them

were “undeliverable” and “returned to sender” due to

incorrect addresses.19 The record also demonstrates that

17. In discussing amendments to 28 U.S.C. § 1367, the Federal Courts

Study Committee recommended: “In order to minimize friction between

state and federal courts . . . Congress should direct federal courts to

dismiss state claims if these claims predominate or if they present novel

or complex questions of state law, or if dismissal is warranted in the

particular case by considerations of fairness or economy.” Report of the

Federal Courts Study Committee, 47-48 (Apr. 2, 1990). 

18. Consistent with our holding, we will deny certification of the WPCL

class with respect to all plaintiffs, including those who opted into the

FLSA class. Our decision does not necessarily preclude the exercise of

supplemental jurisdiction where all plaintiffs with state law claims have

opted into the FLSA class. See Alvarez v. IBP, Inc., 2003 U.S. App. LEXIS

15622 (9th Cir. Aug. 5, 2003). These matters are committed to the sound

discretion of the District Court. See 28 U.S.C. § 1367. 

19. The Notice and Consent Form, written in English and Spanish, was

disseminated as follows: 

(1) for existing workers who are class members, Tyson shall

insert the Notice and Consent Form with the workers’ next

paycheck, along with a postage paid envelope addressed to Plaintiffs’

counsel; 

(2) for former workers who are class members, Tyson shall mail

immediately the Notice with Consent Form to the workers’ last

known addresses, along with a postage paid envelope addressed to

Plaintiffs’ counsel; and 

(3) Tyson shall promptly file with the Court, and serve a copy to

Plaintiff ’s counsel, written certification confirming it has fully

complied with the Court’s Order including the date(s) that it

complied with the instant Order. 

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Tyson hired approximately 700 employees after it mailed

the notice, and those employees never received notice.

Nevertheless, the District Court closed the opt-in period

and denied plaintiffs’ motion to reissue notice to all

potential plaintiffs. The resulting number of 447 plaintiffs

represented approximately 11 percent of the then-eligible

class. 

In class actions, courts have equitable powers to manage

the litigation in order to promote judicial economy and

fairness to litigants. In re Diet Drugs Prods. Liab. Litig., 282

F.3d 220, 232 (3d Cir. 2002) (noting the “equitable nature

of class action proceedings”); In re Orthopedic Bone Screw

Prods. Liab. Litig, 246 F.3d 315, 321 (3d Cir. 2001)

(discussing a court’s equitable powers to “manage” class

action litigation). For this reason, we direct the District

Court to reopen the FLSA opt-in period for a reasonable

period of time to allow additional notice to all eligible

current and former employees. Tyson should make all

reasonable efforts to provide notice to these potential class

members.

IV.

For the foregoing reasons, we will reverse the judgment of

the District Court and remand for proceedings consistent

with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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