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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

ALTON PRIDGEN,

Plaintiff,

v.

RAB COMMUNICATIONS, INC.,

Defendant.

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Civil Case No. 11-2255 (FSH) (PS)

OPINION & ORDER

November 28, 2011

HOCHBERG, District Judge:

I. INTRODUCTION

Plaintiff, Alton Pridgen, brings this putative action asserting claims for unpaid overtime 

wages under both federal and New Jersey state law. The amended complaint contains two 

counts. Count I asserts a Fair Labor Standards Act (“FLSA”) claim, which could potentially 

become an opt-in collective action. Count II asserts a similar claim under the New Jersey State 

Wage and Hour Law, which could potentially become an opt-out collective action. Plaintiff 

contends that the Court has federal question jurisdiction over Count I and should exercise 

supplemental jurisdiction over Count II. Defendant has moved to dismiss Count II under Federal 

Rule of Civil Procedure 12(b)(6) on the theory that the opt-in claim in Count I under the FLSA is 

inherently incompatible with the opt-out claim in Count II. In the alternative, defendant has 

moved to strike plaintiff’s request for liquidated damages based on Count II on the theory that 

the New Jersey State Wage and Hour Law does not provide for liquidated damages.

II. ALLEGATIONS

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Defendant, RAB Communications, Inc. (“RAB”) is a contractor providing engineering, 

technical, and construction services to the telecommunications industry. Plaintiff was employed 

by defendant as an installer from approximately July 2007 to May 2011. Defendant allegedly 

paid plaintiff, and all of its similarly situated installers, on a piece rate basis for each completed 

job. Plaintiff alleges that in virtually all weeks of his employment, he worked in excess of 40 

hours per week. However, plaintiff alleges that because he was paid on a piece rate basis, he was 

not paid overtime premiums for working more than 40 hours per week.

III. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. 

Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

“[S]tating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest 

the required element. This does not impose a probability requirement at the pleading stage, but 

instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal 

evidence of the necessary element.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 

2008) (quotations omitted). 

When considering a motion to dismiss under Iqbal, the Court must conduct a two-part 

analysis. “First, the factual and legal elements of a claim should be separated. The District Court 

must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal 

conclusions. Second, a District Court must then determine whether the facts alleged in the 

complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v. 

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations

omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements 

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of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions 

devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and 

alterations omitted).

IV. DISCUSSION

Defendant argues: (1) that Count II of the amended complaint should be dismissed under 

Federal Rule of Civil Procedure 12(b)(6) because it is inherently incompatible with Count I; (2) 

that the Court should decline to exercise supplemental jurisdiction over Count II because it is 

inherently incompatible with Count I; and (3) that the Court should decline to exercise 

supplemental jurisdiction over Count II because it predominates over Count I. Plaintiff responds 

that every circuit that has squarely considered defendant’s inherent incompatibility argument has 

concluded that Rule 23 classes regarding state law claims and FLSA collective actions can coexist in a hybrid action. Plaintiff further argues that it would be premature at this stage of the 

case to conduct a supplemental jurisdiction analysis and that if the Court is inclined to conduct 

such an analysis, it should exercise supplemental jurisdiction over Count II. 

A. Inherent Incompatibility

Defendant first argues that the Court should dismiss Count II on the basis that an FLSA 

opt-in collective action is inherently incompatible with an opt-out state law wage and hour class 

action. Defendant argues that entertaining parallel FLSA and state law class actions frustrates 

Congressional intent and public policy. Defendant identifies several cases within this district in 

which courts have dismissed state law claims similar to Count II after concluding that such 

claims were incompatible with parallel FLSA claims. See e.g., Evancho v. Sanofi-Aventis U.S. 

Inc., 2007 WL 4546100, at *5 (D.N.J. Dec. 19, 2007); Himmelman v. Continental Cas. Co., 2006 

WL 2347873, at *2 (D.N.J. Aug. 11, 2006). Plaintiff responds that the Second, Seventh, Ninth, 

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and D.C. Circuits have all concluded that a district court exercising federal question jurisdiction 

over an FLSA claim may properly exercise supplemental jurisdiction over a parallel opt-out state 

law claim. Shahriar v. Smith & Wolensky Restaurant Group, Inc., 2011 WL 4436284, *5-11 (2d 

Cir. Sept. 26, 2011); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973-74, 979-81 (7th Cir. 2011); 

Wang v. Chinese Daily News, Inc., 623 F.3d 743, 753-55, 760-62 (9th Cir. 2010); Lindsay v. 

Government Employees Ins. Co., 448 F.3d 416, 420-25 (D.C. Cir. 2006). 

The starting point for the Court’s analysis is the Third Circuit’s decision in De Asencio v. 

Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003). In De Ascencio, the Third Circuit explained 

that, when determining whether to exercise supplemental jurisdiction over state law claims 

brought alongside an FLSA collective action:

[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 casespecific analysis.

Id. at 312. After conducting a detailed analysis, the De Ascencio Court concluded that the 

district court below “did not exercise sound discretion in granting supplemental jurisdiction”

over an opt-out Pennsylvania Wage Payment & Collection Law claim. Id. Plaintiff argues that 

De Ascencio involved a case specific and fact intensive supplemental jurisdiction analysis and 

does not stand for the proposition that state law class actions and FLSA collective actions are 

inherently incompatible. See Ervin, 632 F.3d at 981 (“We agree with the D.C. Circuit in Lindsay 

and the Ninth Circuit in Wang that the Third Circuit decision in De Asencio represents only a 

fact-specific application of well-established rules, not a rigid rule about the use of supplemental 

jurisdiction in cases combining an FLSA count with a state-law class action.”) 

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Plaintiff also identifies several cases within the Third Circuit in which courts have 

refused to dismiss state law claims at the motion to dismiss stage in response to inherent 

incompatibility arguments. See e.g., Dare v. Comcast Corp., 2010 WL 2557678, at *1-3 (D.N.J. 

June 23, 2010) (declining to sever New Jersey State Wage and Hour Law claims and concluding 

that “the Third Circuit’s holding in De Asencio was premised on a case-specific analysis of 

supplemental jurisdiction and not any alleged incompatibility between Rule 23 class actions and 

FLSA collective actions”); Freeman v. Hoffman-La Roche, Inc., 2007 WL 4440875, at *2-3 

(D.N. J. Dec. 18, 2007) (declining to dismiss or strike state law claims based on an inherent 

incompatibility theory and concluding that the examination required by De Ascencio “would be 

premature at this stage of the litigation given that the parties have not yet engaged in discovery, 

nor have motions for class certification been filed”).

In light of the fact-intensive nature of the supplemental jurisdiction analysis conducted by 

the Third Circuit in De Ascencio, the Court concludes that “the more prudent approach in 

assessing whether an opt-out Rule 23 class action and opt-in FLSA collective action should 

proceed together in federal court is to engage in a proper supplemental jurisdiction analysis.” 

Freeman, 2007 WL 4440875 at *2; see also Dare, 2010 WL 2557678, at *3 (concluding that the 

analysis required by De Ascencio “may only be conducted after the parties have completed 

substantial discovery, the opt-in procedure is completed, and the plaintiffs move for class 

certification of their state law claims”). 

B. Supplemental Jurisdiction

Defendant argues that plaintiff’s New Jersey State Wage and Hour Law claim contained 

in Count II predominates over plaintiff’s FLSA claim in Count I under De Asencio. Defendant 

also requests that the Court decline to exercise supplemental jurisdiction on the theory that the 

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inherent incompatibility of Counts I and II constitutes a compelling reason for declining 

jurisdiction under 28 U.S.C. § 1367(c)(4). Plaintiff responds that it would be premature at this 

stage of the case to conduct a supplemental jurisdiction analysis and that if the Court is inclined 

to conduct such an analysis, it should exercise supplemental jurisdiction over Count II. 

The Court concludes that conducting a supplemental jurisdiction analysis “would be 

premature at this stage of the litigation given that the parties have not yet engaged in discovery, 

nor have motions for class certification been filed.” Freeman, 2007 WL 4440875, at *3 (citing 

Lehman v. Legg Mason, Inc., 532 F. Supp. 2d 726, 731-32 (M.D. Pa. 2007) (declining to dismiss 

state claims in response to an inherent incompatibility argument and declining to conduct a 

supplemental jurisdiction analysis at the motion to dismiss stage); Farhy v. Janney Montgomery 

Scott, LLC, 2007 WL 1455764, *1 (E.D. Pa. April 26, 2007) (concluding that De Ascencio 

“made clear that the supplemental jurisdiction issue should only be decided on a complete record 

and not at the motion to dismiss stage”).

C. Liquidated Damages

Defendant also moves to strike plaintiff’s request for liquidated damages pursuant to the 

New Jersey State Wage and Hour Law because that statute does not provide for liquidated 

damages. See N.J. Stat. Ann. §§ 34:11-56a to 34:11-56a38. Plaintiff does not respond to this 

argument and has failed to identify any provision of the New Jersey State Wage and Hour Law 

providing for liquidated damages. Consequently, the Court will review this aspect of 

defendant’s motion as unopposed and will strike plaintiff’s request for liquidated damages 

pursuant to the New Jersey State Wage and Hour Law. See Green v. Essex County Superior 

Court Clerk, 2006 U.S. Dist. LEXIS 22151, at *1 n.1 (D.N.J. April 6, 2006).

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V. ORDER

For the foregoing reasons, defendant’s motion is GRANTED in part and DENIED in 

part. Defendant’s motion to strike plaintiff’s request for liquidated damages pursuant to the New 

Jersey Wage and Hour law is GRANTED as unopposed. Defendant’s motion to dismiss Count 

II of the amended complaint is DENIED. The denial of defendant’s motion to dismiss Count II 

of the amended complaint is without prejudice to defendant’s ability to renew its inherent 

incompatibility and supplemental jurisdiction arguments on the basis of a more complete record 

in response to a motion for class certification.

/s/ Faith S. Hochberg__________

Hon. Faith S. Hochberg, U.S.D.J.

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