IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CHARLES MURRAY, on behalf of himself 

and those similarly situated

Plaintiff,

v.

GERDAU AMERISTEEL CORP.

And JOHN DOES 1-10

Defendants

No. 3:11-cv-00647

Judge Freda L. Wolfson

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

AND/OR STRIKE CLASS ACTION ALLEGATIONS FROM PLAINTIFF’S 

COMPLAINT

Dated: May 23, 2011

Counsel: Justin L. Swidler

Richard S. Swartz

Joshua S. Boyette 

SWARTZ SWIDLER LLC

1878 Marlton Pike East. Ste. 10

Cherry Hill NJ, 08003

(856) 685-7420

Attorney for Plaintiff Charles Murray

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TABLE OF CONTENTS

I. LEGAL STANDARD.................................................................................................................... 2

II. THE COURT SHOULD NOT DISMISS THE STATE LAW CLASS ACTION CLAIMS DUE TO 

INHERENT INCOMPATIBILITY BETWEEN FLSA COLLECTIVE ACTIONS AND RULE 23 

CLASS ACTIONS......................................................................................................................... 3

A. Courts within this District do not Dismiss State Law Class Allegations due to “Inherent 

Incompatibility”.......................................................................................................................... 3

B. Nothing in Text or Legislative History Suggests that Congress Intended to Bar Hybrid Actions ..5

1) Plain Language of the Text Anticipates State Law Wage and Hour Claims, Including Class 

Actions....................................................................................................................................5

2) The Legislative History of FLSA and Rule 23 does not Establish that Congress Intended to 

Prevent Plaintiffs from Bringing Dual Certified Actions........................................................... 8

III. THIS COURT SHOULD EXERCISE SUPPLEMENTAL JURISDICITON OVER PLAINTIFF’S 

CLASS ACTION CLAIMS ...........................................................................................................9

A. NJWHL Class Action Claims are Part of the Same Case or Controversy s Plaintiff’s FLSA Claim

................................................................................................................................................. 10

B. Plaintiff’s NJWHL Class Action Claims do not Raise Novel or Complex Issues of State Law, do 

not Predominate over the Federal Claims, and there are no other Compelling Reasons for 

Declining Jurisdiction ............................................................................................................... 11

1) Plaintiff’s NJWHL Class Action Claims do not Substantially Predominate over Plaintiff’s 

FLSA Collective Action Claims............................................................................................. 12

2) There are no other Exceptional Circumstances to Decline Jurisdiction over Plaintiff’s NJWHL 

Class Action Claims .............................................................................................................. 15

C. This Court Should Exercise Supplemental Jurisdiction due to the Issues of Judicial Economy, 

Convenience, Fairness, and Comity........................................................................................... 17

D. The Recent Trend in this District and Nationwide is to allow Dual-Certified Actions to Proceed18

IV. PUTATIVE CLASS MEMBERS WILL BE ABLE TO MEET THE REQUIREMENTS OF RULE 

23 AND SUCH ANALYSIS IS PREMATURE............................................................................ 20

A. Plaintiff’s Pleadings Establish that the Potential Class Meets Rule 23(A) Numerosity 

Requirement because the Class is Sufficiently Numerous and Class Treatment will Result in 

Substantial Savings of Judicial Resources ................................................................................. 21

B. Plaintiff’s Pleadings Establish that a Class Action is Superior to Other Available Methods to the 

Fair and Efficient Adjudication of The Controversy .................................................................. 22

V. THIS COURT HAS ORIGINAL JURISDICTION OVER PLAINTIFF’S NJWHL CLAIMS 

UNDER CLASS ACTION FAIRNESS ACT ............................................................................... 23

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TABLE OF AUTHORITIES

Cases

Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001)........................................... 17

Barabin v. Aramark Corp., 2003 U.S. App. LEXIS 3532 (3d Cir. Jan. 24, 2003).................................... 22

Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. Pa. 1998) ........................................................ 22

Barnello v. AGC Chemicals Americas, Inc., 2009 U.S. Dist. LEXIS 6410 (D.N.J. Jan. 29, 2009)........... 15

Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171 (D.N.J. 2008)..................................................... 13

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (U.S. 1988)................................................................... 17

Cortez v. Neb. Beef, Ltd., 266 F.R.D. 275 (D. Neb. 2010) ...................................................................... 20

Damassia, et al. v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008)............................................ 6, 20

Dare v. Comcast Corp., 2010 U.S. Dist. LEXIS 62498 (D.N.J. June 23, 2010)......................3, 5, 9, 18, 19

De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003) ........................................................ passim

DiNardo v. Ned Stevens Gutter Cleaning & Installation, Inc., 2008 U.S. Dist. LEXIS 14946 (D.N.J. Feb. 

28, 2008)....................................................................................................................................... 4, 19

Ehrhart v. Synthes (USA), 2007 U.S. Dist. LEXIS 94760 (D.N.J. Dec. 21, 2007)............................... 2, 20

Ervin v. OS Rest. Servs., 632 F.3d 971 (7th Cir. 2011) ............................................................9, 14, 15, 19

Evancho v. Sanofi-Aventis U.S. Inc., 2007 U.S. Dist. LEXIS 93215 (D.N.J. Dec. 18, 2007) ................... 18

Exxon Mobil Corp. v. Allapattah Services Inc., 545 U.S. 546 (2005)................................................ 10, 11

Fielder v. Credit Acceptance Corp., 188 F.3d 1031 (8th Cir. 1999),........................................................ 10

Flynn v. Stonegate Mortg. Corp., 2010 U.S. Dist. LEXIS 90878 (D. Kan. Aug. 30, 2010)...................... 19

Freeman v. Hoffmann-Laroche, Inc., 2007 U.S. Dist. LEXIS 92589 (D.N.J. Dec. 14, 2007)............... 5, 19

Gross v. FBL Fin. Servs., 129 S. Ct. 2343 (2009)..................................................................................... 5

Herring v. Hewitt Associates Inc., 2006 U.S. Dist. LEXIS 56189 (D.N.J. Aug. 11, 2006)......................... 4

Himmelman v. Continental Casualty Co., 2006 U.S. Dist. LEXIS 56187 (D.N.J. Aug. 11. 2006) ...... 4, 18

Hyman v. WM Fin. Servs., 2007 U.S. Dist. LEXIS 41433 (D.N.J. June 7, 2007)................................. 5, 18

In re School Asbestos Litigation, 977 F.2d 796 ...................................................................................... 22

Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 (D.N.J. Feb. 21, 2008) ............................... 4, 24

Kach v. Hose, 589 F.3d 626 (3d Cir. 2009)............................................................................................ 17

Lang v. DirecTV, Inc., 735 F. Supp. 2d 421 (E.D. La. 2010) .................................................................. 19

Lehman v. Legg Mason, Inc., 532 F. Supp. 2d 726 (M.D. Pa. 2007)......................................................... 6

Lenahan v. Sears, Roebuck & Co., 2006 U.S. Dist. LEXIS 60307 (D.N.J. July 10, 2006)....................... 19

Lindsay v. Gov't Emples. Ins. Co., 448 F.3d 416 (D.C. Cir. 2006). ..........................................9, 14, 16, 19

Lum v. Bank of America, 361 F.3d 217 (3d Cir. 2004).............................................................................. 2

Mathis v. Camden County, 2009 U.S. Dist. LEXIS 113045 (D.N.J. Dec. 3, 2009).................................. 15

McCormick v. Festiva Dev. Group, LLC, 2010 U.S. Dist. LEXIS 14856 (D. Me. Feb. 11, 2010)............ 19

McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 2010 U.S. Dist. LEXIS 119792 (E.D.N.C. 2010) .... 20

Moeck v. Gray Supply Corp., 2006 U.S. Dist. LEXIS 511 (D.N.J. Jan. 5, 2006)..................................... 18

Perry v. Freedom Mortg. Corp., 2009 U.S. Dist. LEXIS 46108 (D.N.J. June 1, 2009)........................ 4, 19

Perry v. Freedom Mortg. Corp., 2009 U.S. Dist. LEXIS 64530 (D.N.J. July 27, 2009) .................... 16, 19

S. Broward Hosp. Dist. v. MedQuist, Inc., 516 F. Supp. 2d 370 (D.N.J. 2007)..........................................2

Sherhill v. Cellco P’ship, 2008 U.S. Dist. LEXIS 91477 (E.D. Pa. Apr. 7, 2008)...........................4, 16, 23

Stewart v. Abraham, 275 F.3d 220 (3d Cir. Pa. 2001) ............................................................................ 21

United Mine Workers v. Gibbs. 383 U.S. 715 (1966)...................................................................10, 12, 17

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Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010) ..................................................9, 14, 19

Weisfeld v. Sun Chem. Corp., 84 Fed. Appx. 257 (3d Cir. 2004) ............................................................ 22

Westerfield v. Wash. Mut. Bank, 2007 U.S. Dist. LEXIS 54830 (E.D.N.Y. July 26, 2007)........................ 4

White v. Rick Bus Company, 743 F. Supp. 2d 380 (D.N.J. 2010).............................................................. 5

Statutes

28 U.S.C. § 1367................................................................................................................................... 10

28 U.S.C. § 1367(a)............................................................................................................................... 15

28 U.S.C. § 1367(c)....................................................................................................................11, 12, 15

Fair Labor Standards Act

29 U.S.C. § 201 et seq.. 

29 U.S.C. § 216(b)...................................................................................................................... 6

29 U.S.C. § 218(a)...................................................................................................................... 7

Fair Labor Standards Act of 1938, 

Ch. 676, § 16(b), 52 Stat. 1060, 1069 (1938)............................................................................... 8

Other Authorities

5C Wright, Miller & Kane, Federal Practice & Procedure Civil (3d ed.) .................................................. 2

93 Cong. Rec. 2182 (1947)...................................................................................................................... 8

Marc Linder, Class Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947, 39 Buff. L. Rev. 

53 (1991).............................................................................................................................................8

Rules

Fed. R. Civ. P. 12 ....................................................................................................................................1

Fed. R. Civ. P. 23 ........................................................................................................................... passim

New Jersey Rule of Court 4:32-1.............................................................................................................7

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Plaintiff Charles Murray (hereinafter “Plaintiff”), by and through his undersigned 

counsel, hereby oppose Defendant’s partial Motion to Dismiss.

INTRODUCTION

Plaintiff filed a collective and class action complaint against his former employer, Gerdau 

Ameristeel Corp. (“Gerdau” or “Defendant”) and John Does 1-10 on February 4, 2011. His 

complaint alleged violations of both the Fair Labor Standards Act (“FLSA”) and the New Jersey 

Wage and Hour Law (“NJWHL”). Defendant has now moved to dismiss the class action claims 

from Plaintiff’s Complaint on three primary grounds: first, Defendant claims that the 

maintenance of a state law wage and hour class action is “inherently incompatible” with a FLSA 

collective action due to the different consent procedures involved in each action; second, 

Defendant claims that similarly, this Court should decline to exercise supplemental jurisdiction 

over Plaintiff’s state law class action claims because of said inherent incompatibility; and third, 

Defendant claims that the mechanisms provided by the FLSA collective action support a finding 

that Plaintiff will be unable, at the class certification stage, to support the requirements of Rule

23(b)(3) that joinder is impracticable and that a class action is not a superior means of resolving 

the class’ claims. 

Each one of Defendant’s arguments is, at its essence, an argument that the procedural 

differences between a FLSA collective action (which requires an opt-in by class members before 

they are joined to the action) and a Rule 23 class action for the state law claims (which requires 

only notice and an opportunity to opt-out of the action) prevents a federal court from certifying 

both types of claims in a single action. Nothing in the text or history of FLSA supports such a 

conclusion, and to the extent Defendant appeals to this Court’s discretion to decline to exercise 

supplemental jurisdiction, there exist important reasons to deny Defendant’s request.

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This Court should deny Defendant’s motion because, first, “inherent incompatibility” is 

not a valid reason to dismiss state law claims and Defendant provides no legal doctrine for doing 

so; second, because exercising supplemental jurisdiction over Plaintiff’s and the putative class 

members’ state law claims does not require the resolution of novel or complex issues of state law 

and does not require significantly broadening the scope of the action in terms of remedies and 

scope of proof; and third, because the determination of whether the putative class meets the 

requirements of Rule 23 is premature since Plaintiff has not had a chance to take class 

discovery. 

LEGAL ARGUMENT

I. LEGAL STANDARD

It is well settled that when considering a Rule 12(b)(6) motion to dismiss, the Court must 

“accept as true all of the factual allegations in the complaint and draw all reasonable inferences 

from those facts in favor of the plaintiffs.” Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 

2004). Additionally, class action allegations should only be dismissed in those rare cases where 

the complaint itself demonstrates that the requirements for maintaining a class action cannot be 

met. Ehrhart v. Synthes (USA), 2007 U.S. Dist. LEXIS 94760, *12 (D.N.J. Dec. 21, 2007). As a 

practical matter, the Court’s certification decision should be predicated on more information than 

the complaint itself affords, and discovery related to the issue whether a class action is 

appropriate needs to be undertaken before deciding whether to allow the action to proceed on a 

class basis. Id. at * 13 (quoting 5C Wright, Miller & Kane, Federal Practice & Procedure Civil 

3d § 1785.3); see also S. Broward Hosp. Dist. v. MedQuist, Inc., 516 F. Supp. 2d 370, 402 

(D.N.J. 2007).

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II. THE COURT SHOULD NOT DISMISS THE STATE LAW CLASS ACTION 

CLAIMS DUE TO CLAIMED INHERENT INCOMPATIBILITY BETWEEN 

FLSA COLLECTIVE ACTIONS AND RULE 23 CLASS ACTIONS

Defendant’s primary argument in its motion to dismiss is that a NJWHL class action is 

inherently incompatible with a FLSA collective action due to the procedural differences between 

Rule 23(b)(3)’s opt-out consent mechanism and FLSA’s opt-in consent mechanism. However, 

no court within this district has held that “inherent incompatibility” is a permissible reason to 

dismiss a class action allegation predicated on state law. Defendant has not argued that the 

FLSA preempts either the NJWHL or Rule 23, nor is there any basis to claim as such. Thus, to 

the extent that Defendant seeks to dismiss these claims solely on the basis of a so-called 

“inherent incompatibility” between the FLSA and either Rule 23 or the NJWHL, this Court 

should deny Defendant’s motion. 

This Court should further deny Defendant’s motion to the extent it is predicated on 

inherent incompatibility because nothing in the text or legislative history of FLSA indicates that 

the statute was intended to bar state law wage and hour class actions from proceeding in the 

same or in separate actions. 

A. Courts within this District do not Dismiss State Law Class Allegations due to 

“Inherent Incompatibility” 

Defendant argues that this Court should dismiss Plaintiff’s state law claims due to an 

asserted “inherent incompatibility” between the procedural requirements of a FLSA collective 

action and a NJWHL class action certified under Rule 23. Though some courts within this 

district have referred to this alleged procedural incompatibility, no court has held that “inherent 

incompatibility,” standing alone, is a doctrinally-sound reason to dismiss state wage and hour 

class allegations. See Dare v. Comcast Corp., No. 09-4175 (NLH), 2010 U.S. Dist. LEXIS 

62498 at *4 (D.N.J. June 23, 2010) (noting that though two District of New Jersey Courts have 

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used language of inherent incompatibility, the dismissals in both cases were predicated upon 

declining to exercise supplemental jurisdiction); see also Perry v. Freedom Mortg. Corp., No. 

09-856 (RMB), 2009 U.S. Dist. LEXIS 46108 (D.N.J. June 1, 2009) (“dismissal of a cause of 

action under NJWL solely for inherent incompatibility with FLSA is not appropriate”); DiNardo 

v. Ned Stevens Gutter Cleaning & Installation, Inc., No. 07-5529 (SRC), 2008 U.S. Dist. LEXIS 

14946 (D.N.J. Feb. 28, 2008) (denying motion to dismiss because Defendant relied solely on 

“inherent incompatibility” argument); Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 

(D.N.J. Feb. 21, 2008) (holding that “inherent incompatibility” is only relevant as part of 

supplemental jurisdiction analysis).1

Similarly, courts within the Eastern District of Pennsylvania have also rejected the 

argument that a state wage law class action is inherently incompatible with a FLSA collective 

action. See, e.g., Sherhill v. Cellco P’ship, 2008 U.S. Dist. LEXIS 91477, 3-5 (E.D. Pa. Apr. 7, 

2008) (“‘[t]here is no legal doctrine, of which this Court is aware, that permits the Court to 

dismiss a cause of action solely on the grounds that it is 'inherently incompatible' with another 

action before it”). Other courts have reached the same conclusion. See, e.g., Westerfield v. 

Wash. Mut. Bank, 2007 U.S. Dist. LEXIS 54830 (E.D.N.Y. July 26, 2007) (“[cases] which cite 

only to the theory of inherent incompatibility are simply wrongly decided under an imaginary 

legal doctrine”).

Rather, and as the Third Circuit has explained, the decision to permit an opt-in collective 

action to proceed alongside an opt-out class action must be decided through a case-specific 

 

1 Of the cases cited by Defendant, only two, Herring v. Hewitt Associates Inc., No. 06-267 (GEB), 2006 U.S. Dist. 

LEXIS 56189 (D.N.J. Aug. 11, 2006), and Himmelman v. Continental Casualty Co., No. 06-166 (GEB), 2006 U.S. 

Dist. LEXIS 56187 (D.N.J. Aug. 11. 2006), use the language “inherent incompatibility” in dismissing state claims. 

However, in Jackson v. Alpharma Inc., Chief Judge Brown clarified that though the issue had not been explicitly 

addressed in his unpublished opinions, Herring and Himmelman had been decided under a supplemental jurisdiction 

analysis since the state claims were only before the court pursuant to supplemental jurisdiction. 2008 U.S. Dist. 

LEXIS 12787 at *12, fn. 3 (D.N.J. Feb. 21, 2008).

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supplemental jurisdiction analysis. De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 312 (3d Cir. 

2003); see also White v. Rick Bus Company No. 09-5408 (FLW), 743 F. Supp. 2d 380 (D.N.J. 

2010) (“De Asencio directs courts faced with the prospect of dual certification ... to determine, 

on a case-by-case basis, whether to exercise supplemental jurisdiction”); Freeman v. HoffmannLaroche, Inc., 2007 U.S. Dist. LEXIS 92589 *7-*9 (D.N.J. Dec. 14, 2007); Hyman v. WM Fin. 

Servs., 2007 U.S. Dist. LEXIS 41433 (D.N.J. June 7, 2007). Furthermore, because this casespecific analysis requires “examining the scope of state and federal issues, the terms of proof 

required for each claim, the comprehensiveness of the remedies and the ability to dismiss the 

state claims without prejudice,” De Asencio, 342 F.3d at 312, this analysis can 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 claims.” Dare v. Comcast Corp., No. 09-

4175 (NLH), 2010 U.S. Dist. LEXIS 62498 (D.N.J. June 23, 2010).

B. Nothing in Text or Legislative History Suggests that Congress Intended to 

Bar Hybrid Actions

This Court should further deny Defendant’s motion because nothing in the text of FLSA 

or its legislative history indicates an intent to preempt or preclude a plaintiff from bringing a 

state law claim in the same action and then proceeding with that state claim on a class action 

basis. 

1) Plain Language of the Text of the FLSA Anticipates State Law Wage and

Hour Claims, Including Class Actions

Statutory construction must begin with the language employed by Congress and the 

assumption that the ordinary meaning of that language accurately expresses the legislative 

purpose. Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2350 (2009). The express language of 

Section 216(b) limits the opt-in requirement to “such actions” brought to vindicate rights under 

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FLSA; it says nothing as to state actions. In contrast, the express language of Section 218(a) of 

FLSA makes clear that the FLSA does not preempt state laws that provide more generous 

provisions. 

Under Section 216(b), a plaintiff may bring a collective action on behalf of similarly 

situated employees to vindicate rights established by the FLSA so long as each employee seeking 

to be a plaintiff in that action files a written consent with the court. 29 U.S.C. § 216(b).

Section 216(b) states in part: 

Any employer who violates the provisions of section 6 or section 7 of this Act [29 USCS 

§ 206 or 207] shall be 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. Any employer who violates the 

provisions of section 15(a)(3) of this Act [29 USCS § 215(a)(3)] shall be liable for such 

legal or equitable relief as may be appropriate to effectuate the purposes of section 

15(a)(3) [29 USCS § 215(a)(3)], including without limitation employment, reinstatement, 

promotion, and the payment of wages lost and an additional equal amount as liquidated 

damages. An action to recover the liability prescribed in either of the preceding 

sentences may be maintained against any employer (including a public agency) in any 

Federal or State court of competent jurisdiction by any one or more employees for and 

in behalf of himself or themselves and other employees similarly situated. 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. (emphasis added). Thus, the express language of 216(b) makes clear that the collective action 

mechanism only applies to “such action[s]” raising a violation of Sections 206, 207, or 215(a)(3)

of the FLSA. See, e.g., Damassia, et al. v. Duane Reade, Inc., 250 F.R.D. 152, 162 n.5 

(S.D.N.Y. 2008) (the word “action” only applies to actions to redress wage claims under the 

FLSA). Thus, in enacting section 216(b), Congress did nothing to restrict state law in any 

manner. See Lehman v. Legg Mason, Inc., 532 F. Supp. 2d 726, 731 (M.D. Pa. 2007) (“Congress 

acted only with respect to federal claims and did not preempt or limit the remedies available 

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through state law ... nothing in the plain text of the FLSA reflects Congressional intent to 

limit the substantive remedies available ... under state law, nor to limit the procedural 

mechanism by which such a remedy may be pursued”) (emphasis added). 

In fact, the FLSA explicitly endorsed the continued exercise by the states of their broad 

police powers to improve the welfare of their citizens through Section 218(a). See id. (“The 

intent of 218(a) is to leave undisturbed the traditional exercise of the states’ police with respect

to wages and hours more generous than the federal standard”).

Section 218(a) states that: 

No provision of this Act or of any order thereunder shall excuse noncompliance with any 

Federal or State law or municipal ordinance establishing a minimum wage higher than 

the minimum wage established under this Act or a maximum workweek lower than the 

maximum workweek established under this Act ... 

29 U.S.C. § 218(a). Thus, the plain language and structure of the FLSA contemplates state wage 

and hour claims more generous than the FLSA proceeding and in tandem with a FLSA action. 

New Jersey enacted the NJWHL in 1966. In so doing, it adopted much of the structure of 

the FLSA. However, it specifically did not adopt the opt-in consent requirement of 216(b). 

Instead, a class action under the NJWHL filed in state court would proceed pursuant to New 

Jersey Rule of Court 4:32-1, which permits class actions for the recovery of damages pursuant to 

an opt-out procedure. If filed in federal court pursuant to supplemental jurisdiction, diversity 

jurisdiction, or CAFA jurisdiction, it would proceed under Rule 23. Thus, the State of New 

Jersey provides a potentially more generous procedural mechanism for class action suits under 

NJWHL. The language and intent of the FLSA supports the proposition that Plaintiff and the 

putative class members should be able to bring a NJWHL class action, and join it to the FLSA 

collection action. 

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2) The Legislative History of the FLSA and Rule 23 does Not Establish that 

Congress Intended to Prevent Plaintiffs from Bringing Dual Certified 

Actions

Defendant’s further argument that Congress intended to prevent dual-certified actions is 

not supported by the actual legislative history of Section 216(b) and FRCP 23. Defendant 

erroneously implies that the Portal-to-Portal Act was enacted to ban opt-out class actions such as 

those certified under Rule 23(b)(3). This assertion mischaracterizes the actual history of the 

enactment; the Portal-to-Portal Act, and Section 216(b)’s opt-in consent requirement, were

enacted to prevent lawsuits brought by individuals with no claims of their own on behalf of 

others. 

When the FLSA was first enacted in 1938, it permitted employees to “designate an agent 

or representative to maintain such action for and on behalf of all employees similarly situated.” 

Ch. 676, § 16(b), 52 Stat. 1060, 1069 (1938); Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 

173 (1983). Under this provision, employees could designate a third party, such as a union 

representative, with no claim of his own against a defendant, to bring a suit against the defendant 

on behalf of all similarly situated employees. 

It was these types of third party actions, which Senator Donnell referred to in the 

Congressional Record as “representative actions” as opposed to “collective actions” or “class 

actions,” which the Portal-to-Portal Act repealed and to which Senator Donnell was referring in 

the statement cited by Defendant. See 93 Cong. Rec. 2182 (1947). Notably, Senator Donnell 

could not have been referring to opt-out actions under Rule 23 because Rule 23 did not allow 

class members to join an action through an opt-out procedure until 1966. See Marc Linder, Class 

Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947, 39 Buff. L. Rev. 53, 174-

75 (1991). Thus, because there were no procedural differences between the FLSA and the 

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Federal Rules at the time the Portal-to-Portal Act was enacted, Congress could not have intended 

to preclude dual actions on the basis of procedural differences that did not develop until 1966. 

In reliance in part on this correct history of the respective provisions, and the fact that the 

plain language of the FLSA renders a resort to legislative history unnecessary, three recent 

Circuit Courts of Appeal have held that the maintenance of a Rule 23 state law class action is not

inherently incompatible with the maintenance of a FLSA collective action in the same lawsuit. 

See Ervin v. OS Rest. Servs., 632 F.3d 971, 973 (7th Cir. 2011) (“This action was designed to 

eliminate lawsuits initiated by third parties (typically union leaders) on behalf of a disinterested 

employee”); Wang v. Chinese Daily News, Inc., 623 F.3d 743, 761 (9th Cir. 2010); Lindsay v. 

Gov't Emples. Ins. Co., 448 F.3d 416, 418 (D.C. Cir. 2006). These decisions accord with those 

in this district that have held that there is nothing inherently incompatible about the maintenance 

of a dual-certified action. See, e.g., Dare, 2010 U.S. Dist. LEXIS 62498 at *4 (D.N.J. June 23, 

2010).

Based on the foregoing reasons, this Court should deny Defendant’s motion to dismiss 

due to asserted “inherent incompatibility.”

III. THIS COURT SHOULD EXERCISE SUPPLEMENTAL JURISDICITON OVER 

PLAINTIFF’S CLASS ACTION CLAIMS

Defendant argues in the alternative that this Court should decline to exercise 

supplemental jurisdiction over the state law class action claims. This Court should deny 

Defendant’s motion to dismiss on this basis because conducting this supplemental jurisdiction 

analysis is premature and should be postponed until after Plaintiff has had a chance to take class 

discovery and move for class certification. This Court should also deny Defendant’s motion

because Plaintiff’s state law claims do not raise novel or complex issues of state law, do not 

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substantially predominate over federal claims, and there are no other sufficiently compelling 

reasons for declining supplemental jurisdiction. 

Under the supplemental jurisdiction statute, federal courts are instructed to exercise 

supplemental jurisdiction over state law claims that share a common nucleus of operative fact 

with the federal claims such that they form part of the same case or controversy under Article III 

of the United States Constitution. 28 U.S.C. § 1367. However, the supplemental jurisdiction 

statute also permits a court to decline to exercise supplemental jurisdiction in certain enumerated 

or exceptional circumstances first outlined in United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966). Those circumstances are not present in this action.

A. NJWHL Class Action Claims are Part of the Same Case or Controversy as 

Plaintiff’s FLSA Claim

Defendant first argues that the state law class members’ claims do not form part of the 

same case or controversy as the FLSA action because they do not have their own individual basis 

of federal jurisdiction. Defendant cites a number of out-dated and out-of-circuit cases for this 

proposition. See Defendants’ Brief at 7 (citing, e.g., Fielder v. Credit Acceptance Corp., 188 

F.3d 1031 (8th Cir. 1999), and two district court cases from the Second Circuit decided prior to 

2005). In 2005, the Supreme Court explicitly rejected this narrow interpretation of the 

supplemental jurisdiction statute. Exxon Mobil Corp. v. Allapattah Services Inc., 545 U.S. 546, 

560-61 (2005). In Exxon, the Supreme Court held that once a court has original jurisdiction over 

a case or controversy, supplemental jurisdiction will reach all related claims, even those that do 

not have an independent basis of federal jurisdiction. Id. 

Similarly, the Third Circuit Court of Appeals has explicitly stated that state wage and 

hour claims arise out of the same case or controversy as federal wage and hour claims. “Where 

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the same acts violate parallel federal and state laws, the common nucleus of operative facts is 

obvious.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir. 2003).

Thus, Defendant’s argument that the claims of the state law class members are not part of 

the same case or controversy is clearly erroneous and specifically foreclosed by the Supreme 

Court’s decision in Exxon and the Third Circuit’s statement in De Asencio. Because the failure 

to pay overtime wages to the potential class members was part of Defendant’s uniform policy 

and practice, all of the claims alleged in Plaintiff’s complaint arise from a common nucleus of 

operative fact, and the NJWHL class action claims fall squarely within the supplemental 

jurisdiction of this Court.

B. Plaintiff’s NJWHL Class Action Claims do Not Raise Novel or Complex 

Issues of State Law, do Not Predominate over the Federal Claims, and there 

are No other Compelling Reasons for Declining Jurisdiction

Since the NJWHL class action claims are part of the same case or controversy as the 

FLSA collective action claims, and the FLSA does not expressly preempt or preclude 

supplemental jurisdiction, the only basis for a court to dismiss Plaintiff’s state law class action 

allegations is under the Court’s discretionary authority pursuant to 28 U.S.C. § 1367(c). Exxon, 

545 U.S. at 559. Under this provision, a court may (but need not) decline to exercise jurisdiction 

when: 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 court has original jurisdiction; 3) the court 

has dismissed all claims over which it has original jurisdiction; or 4) in exceptional 

circumstances, when there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 

1367(c)(1)-(4).

Defendant has argued that this Court should decline supplemental jurisdiction because 

the state claims substantially predominate over the federal claims and because this is an 

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exceptional circumstance in which compelling reasons exist for declining jurisdiction. This

Court should reject these contentions.

1) Plaintiff’s NJWHL Class Action Claims do Not Substantially 

Predominate over Plaintiff’s FLSA Collective Action Claims

Under a supplemental jurisdiction analysis, if 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.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); 28 U.S.C. § 

1367(c)(3). Unlike in De Asencio, an analysis of the factors here strongly suggest retaining 

jurisdiction over Plaintiff’s NJWHL class action claims. 

In De Asencio v. Tyson Foods, Inc., the Third Circuit declined to exercise supplemental 

jurisdiction over a plaintiff’s class action claims under the Pennsylvania Wage Payment and 

Collection Law (“PWPCL”) in conjunction with a FLSA collective action, holding that the state 

law claims substantially predominated over the FLSA claims because they involved novel and 

complex issues of state law, different terms of proof, different and more comprehensive 

remedies, and because the number of state class members who had failed to opt-out greatly 

exceeded the number of FLSA class members who had opted in. 342 F.3d 301, 306 (3d. Cir. 

2003). De Asencio also counseled that the decision to decline to exercise supplemental 

jurisdiction was necessarily a fact intensive question to be decided on a case-by-case basis. Id. at 

312.

In De Asencio, the Third Circuit was primarily concerned with the differences in proof 

between the FLSA and the PWPCL. Id. at 309 (“Our inquiry here centers on the terms of proof 

and the scope of the issues raised in the FLSA and WPCL actions”). However, unlike the FLSA 

and the NJWHL, both of which create a right to compensation, the PWPCL only provides a 

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statutory remedy for an employer’s breach of contract. Id. Thus, in order to establish violations 

of the PWPCL, the existence and terms of a contract needed to be proven. Id. Additionally, the 

court in De Asencio was faced with resolving a matter of first impression under the PWPCL, 

namely whether the statute extended to implied contracts. Id. at 309-310.

In contrast to the state claims in De Asencio, the instant matter will not require the 

resolution of novel or complex issues of state law that diverge from the standards of proof 

needed to establish violations under the FLSA. The NJWHL is modeled on the FLSA and 

incorporates, both explicitly and through judicial interpretation, the FLSA’s methods of proof 

and interpretation. See Cannon v. Vineland Hous. Auth., 627 F. Supp. 2d 171, 176 n.4 (D.N.J. 

2008) (noting that the FLSA and NJWHL use the same test for overtime claims). Unlike in De 

Asencio, where the court held that the novel questions of law and fact would render the federal 

claim a mere appendage to “the more comprehensive state action,” in the instant matter, federal 

statutory law and interpretations will predominate over the analogous NJWHL. See 342 F.3d at 

309 n. 13. 

While De Asencio did note that the different sizes of the classes played a role in the 

decision to decline supplemental jurisdiction, this conclusion was influenced at least in part by 

the understanding that the difference in class size would exacerbate the other factors already 

discussed, i.e., the differences in proofs and remedies. Id. at 310 (“As we analyze the different 

levels of proof required and the relevant federal and state interests, the disparity in numbers here 

gives us pause”).

Where the different levels of proof are not substantially different (as is the situation here), 

and the matter does not involve novel issues of New Jersey law (as is the situation here), the 

concerns about disparity in class size raised by the De Asencio court in declining to exercise 

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supplemental jurisdiction are significantly mitigated. See id. at 312 (noting that bringing state 

law class action in same case as a FLSA claim “may be proper strategy where the state and 

federal actions raise similar issues and require similar terms of proof”); see also Ervin v. OS 

Rest. Servs., 632 F.3d 971, 980 (7th Cir. 2011) (“As long as the claims are similar between state 

plaintiffs and the federal action, it makes no real difference whether the numbers vary”); Wang v. 

Chinese Daily News, Inc., 623 F.3d 743, 761 (9th Cir. 2010) (state claims do not predominate 

where they are closely related to the FLSA claims); Lindsay v. Gov’t Emples. Ins. Co., 448 F.3d 

416, 425 (D.C. Cir. 2006) (“[where] state claims essentially replicate the FLSA claims – they 

plainly do not predominate”).

Lindsay, decided by the D.C. Circuit Court of Appeals, discussed the issue of 

supplemental jurisdiction in dual certified actions extensively and its rationale is persuasive here. 

First, Lindsay noted that while the defendants focused considerably on Congress’ intent in 

enacting the Portal-to-Portal Act, defendants glossed over congressional intent in enacting the 

supplemental jurisdiction statute. 448 F.3d at 424. “Congress conferred a broad grant of 

jurisdiction upon the district courts, indicating a congressional desire that ‘supplemental 

jurisdiction,’ at least in the first instance . . . go to the constitutional limit.” Id. Lindsay then 

held that the similarity between the federal and state claims warranted exercising supplemental 

jurisdiction over the state claims. Id. 

Similarly, in Wang, the Ninth Circuit held that it was not an abuse of a district court’s 

discretion to exercise supplemental jurisdiction over a state wage class action brought pendent to 

a FLSA collective action. 623 F.3d at 761-762. Wang distinguished De Asencio on the grounds 

that the state wage allegations did not pose novel questions of state law akin to those present in 

De Asencio. See id.

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In Ervin, the Seventh Circuit followed Lindsay and Wang and held that where the state 

law claims generally replicate the FLSA, the state claims will not predominate. 632 F.3d at 980. 

In terms of differences between class sizes, the court noted that the supplemental jurisdiction 

statute explicitly calls for the inclusion of additional parties. “Section 1367(a) expressly states 

that ‘[s]uch supplemental jurisdiction shall include claims that involve the joinder or intervention

of additional parties’ ... inclusion of additional litigants as unnamed members of a class is of no 

more jurisdictional significance than joinder or intervention.” Id. (quoting 28 U.S.C. § 1367(a)). 

Unlike in De Asencio, in the instant case, the only reason to find that the state claims 

would predominate over the federal claims is because of the state law class may be larger than 

the FLSA class. And as discussed above, this Court should not find that a mere disparity in size 

is sufficient alone to constitute substantial predominance. Therefore, this Court should deny 

Defendant’s motion to dismiss on this basis.2

2) There are No other Exceptional Circumstances to Decline Jurisdiction 

over Plaintiff’s NJWHL Class Action Claims

Defendant also suggests that the Court should decline supplemental jurisdiction due to 

the existence of exceptional circumstances, pursuant to 28 U.S.C. § 1367(c)(4). When 

adjudicating whether “other compelling reasons” counsel against supplemental jurisdiction, a 

court must evaluate “economy, convenience, fairness, and comity.” Mathis v. Camden County, 

2009 U.S. Dist. LEXIS 113045, *28 (D.N.J. Dec. 3, 2009).

It is true that some courts in this district have declined to hear state law claims under this 

provision. See, e.g., Barnello v. AGC Chemicals Americas, Inc., 2009 U.S. Dist. LEXIS 6410 

(D.N.J. Jan. 29, 2009); but see Perry v. Freedom Mortg. Corp., 2009 U.S. Dist. LEXIS 64530 

 

2

Plaintiff also notes that in De Asencio, the different sizes of the two classes were known with certainty. Here, 

declining to exercise supplemental jurisdiction at the pleadings stage before the parties have any sense of the actual 

relative sizes of the two classes would be, needless to say, premature.

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(D.N.J. July 27, 2009) (declining to follow Barnello). However, in De Asencio, the Third Circuit 

specifically declined to characterize concerns about the tension between the opt-in and opt-out

procedures of the two class mechanisms as an exceptional circumstance that would allow a court 

to decline jurisdiction under subsection 4. See 342 F.3d at 309. Further, in Lindsay, the D.C. 

Circuit specifically held that the procedural differences between the two mechanisms could not

constitute a compelling reason to decline to exercise supplemental jurisdiction. See 448 F.3d at 

425 (“[the court] may not, however, use subsection (c)(4) to conclude that section 216(b)’s opt-in 

procedure ousts the court of supplemental jurisdiction over the state law class of those claimants 

who have not joined the FLSA claim”).

Defendant cites no case law and makes no argument why the instant circumstances 

constitute exceptional circumstances except that the action will involve two different classes of 

plaintiffs: “With separate classes of plaintiffs, the Court will have to address multiple 

permutations of claims for numerous groups.” (Def. Brief at 10). However, Defendant makes 

no argument as to why this Court would be ill-equipped to manage an action in which there were 

two classes with similar, though not identical, claims and defenses. While it is true that some 

individuals may be members of both classes, courts routinely manage cases with many 

subclasses, and would not be overburdened in managing a case with only two. Furthermore, any 

case manageability concerns are properly deferred to the class certification stage. See, e.g., 

Sherhill v. Cellco P’ship, 2008 U.S. Dist. LEXIS 91477 *4-*5 (E.D. Pa. Apr. 7, 2008).

As explained below, hearing all of these cases in a single proceeding will significantly 

advance the values of economy, convenience, fairness, and comity, since hearing all claims will 

result in a significant savings of judicial resources and will respect the State of New Jersey’s 

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decision to permit opt-out class actions in suits under its wage and hour laws. For this reason,

the Court should deny Defendant’s motion to dismiss on this basis. 

C. This Court Should Exercise Supplemental Jurisdiction due to the Issues of 

Judicial Economy, Convenience, Fairness, and Comity

While a court has discretion to decline to exercise supplemental jurisdiction under 

1367(c), that discretion should be based on considerations of judicial economy, convenience, and 

fairness to the parties. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009); see also CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“a federal court should consider and weigh in 

each case, and at every stage of the litigation, the values of judicial economy, convenience, 

fairness, and comity”) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)). A weighing 

of these considerations supports an exercise of supplemental jurisdiction in this case. 

Should this Court dismiss Plaintiff’s state law class allegations, Plaintiff will likely file a 

separate class action in either state or federal court pursuant to CAFA or diversity jurisdiction. 

This separate action will result in a significant duplication of time and effort, resulting in 

significant and unnecessary use of judicial resources. See, e.g., Ansoumana v. Gristede’s 

Operating Corp., 201 F.R.D. 81, 89 (S.D.N.Y. 2001) (“these common questions are best litigated 

in a single forum and separate actions would be wasteful and inefficient”). Thus, the principle of 

judicial economy favors exercising supplemental jurisdiction over Plaintiff’s claims. Likewise, 

it will be more convenient for all parties, including the members of the state law class, to have 

their claims adjudicated in the same action as the FLSA collective action. Should Plaintiff not 

file a state law class action, the courts could be faced with the prospect of hundreds of individual

suits litigating what is the same constitutional case and controversy. Thus, these two principles 

strongly favor this Court exercising supplemental jurisdiction over the state law claims. 

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Similarly, the value of fairness and comity suggests that this Court should exercise 

supplemental jurisdiction. Declining to exercise supplemental jurisdiction over New Jersey 

Wage and Hour Claims disregards New Jersey’s interest in allowing its workers to vindicate 

violations of New Jersey law through a class action in a convenient and efficient forum of their 

choice. Declining jurisdiction defeats the principal of comity and federalism in which federal 

courts are competent to hear and adjudicate state laws and state courts are competent to hear and 

adjudicate federal laws. The inevitable practical result of Defendant’s motion is that the 

plaintiffs will be less likely to attempt to vindicate their rights under the New Jersey law. Such a 

result is contradictory to the principle of federalism and to the express intent of the FLSA to set a 

floor to workplace regulation, and not a ceiling.

D. Moreover, the Recent Trend in this District and Nationwide is to Allow DualCertified Actions to Proceed

Following De Asencio’s mandate that the decision to decline supplemental jurisdiction 

over pendent state law claims is a case-by-case analysis, courts in this district have divided on 

exercising jurisdiction over such claims. While a number of courts have declined jurisdiction 

over state law claims, see, e.g., Moeck v. Gray Supply Corp., No. 03-1950 (WGB), 2006 U.S. 

Dist. LEXIS 511 (D.N.J. Jan. 5, 2006); Himmelman v. Cont'l Cas. Co., No. 06-166 (GEB), 2006 

U.S. Dist. LEXIS 56187 (D.N.J. Aug. 11, 2006); Evancho v. Sanofi-Aventis U.S. Inc., No. 07-

2266 (MLC), 2007 U.S. Dist. LEXIS 93215 (D.N.J. Dec. 18, 2007); Hyman v. WM Fin. Servs.,

No. 06-4038 (WJM), 2007 U.S. Dist. LEXIS 41433 (D.N.J. June 7, 2007), the recent trend 

within this district has been to allow dual actions to proceed, or postpone such decisions to the 

class certification or summary judgment stage. See Dare v. Comcast Corp., No. 09-4175 (NLH), 

2010 U.S. Dist. LEXIS 62498 (D.N.J. June 23, 2010) (postponing supplemental jurisdiction 

analysis to class certification stage); Perry v. Freedom Mortg. Corp., No. 09-856 (RMB), 2009 

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U.S. Dist. LEXIS 46108 (D.N.J. June 1, 2009); DiNardo v. Ned Stevens Gutter Cleaning & 

Installation, Inc., No. 07-5529 (SRC), 2008 U.S. Dist. LEXIS 14946 (D.N.J. Feb. 28, 2008); 

Freeman v. Hoffmann-Laroche, Inc., No. 07-1503 (JLL), 2007 U.S. Dist. LEXIS 92589 (D.N.J. 

Dec. 14, 2007) (postponing supplemental jurisdiction analysis to class certification stage); 

Lenahan v. Sears, Roebuck & Co., No. 02-0045 (SRC), 2006 U.S. Dist. LEXIS 60307, 19-20 

(D.N.J. July 10, 2006) (approving a settlement class of both the FLSA and NJWHL class 

claims).

In Dare, after holding that inherent incompatibility was not a sufficient reason to dismiss 

the state law class allegations, Judge Hillman held that a supplemental jurisdiction analysis could 

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 claims.” 2010 U.S. Dist. 

LEXIS 62498 at *8-*9. Likewise, in Freeman, Judge Linares declined to engage in a 

supplemental jurisdiction analysis before the parties had engaged in discovery. 2007 U.S. Dist. 

LEXIS 92589 at *11. 

Similarly, the recent national trend also supports the maintenance of dual certified 

actions. The Courts of Appeal for the D.C., Seventh, and Ninth Circuits have all recently held 

that such suits can be maintained. See Ervin v. OS Rest. Servs., 632 F.3d 971, 973 (7th Cir. 

2011); Wang v. Chinese Daily News, Inc., 623 F.3d 743, 761 (9th Cir. 2010); Lindsay v. Gov't 

Emples. Ins. Co., 448 F.3d 416, 418 (D.C. Cir. 2006). Districts courts in six other circuits also 

routinely allow dual-certified actions to proceed in a single suit. See, e.g., McCormick v. Festiva 

Dev. Group, LLC, 2010 U.S. Dist. LEXIS 14856 (D. Me. Feb. 11, 2010); Flynn v. Stonegate 

Mortg. Corp., 2010 U.S. Dist. LEXIS 90878 (D. Kan. Aug. 30, 2010); Lang v. DirecTV, Inc., 

735 F. Supp. 2d 421, 429 (E.D. La. 2010); McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 

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2010 U.S. Dist. LEXIS 119792 (E.D.N.C. 2010); Cortez v. Neb. Beef, Ltd., 266 F.R.D. 275, 287 

(D. Neb. 2010); Perkins v. Southern New Eng. Tel. Co., 2009 U.S. Dist. LEXIS 10625 (D. Conn. 

Feb. 11, 2009); Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 161 (S.D.N.Y. 2008).

Thus, because Plaintiff’s NJWHL class action claims are part of the same case or 

controversy as his FLSA claims, and because the NJWHL claims do not substantially 

predominate over his federal claims, and because the values of economy, convenience, fairness, 

and comity support exercising supplemental jurisdiction over these claims, this Court should 

follow the recent trend in this district and elsewhere in allowing such dual-certified actions to 

proceed, and deny Defendant’s motion.

IV. PUTATIVE CLASS MEMBERS WILL BE ABLE TO MEET THE 

REQUIREMENTS OF RULE 23 AND SUCH ANALYSIS IS PREMATURE

Defendant’s last argument repackages its previous two, and argues that the procedural 

differences between the FLSA and Rule 23 means that Plaintiff will not be able to meet the 

requirements of Rule 23 at the class certification stage for this NJWHL claims. This argument 

also fails.

As noted at the outset, dismissing class action allegations before class certification and an 

opportunity to take class discovery is a rare occurrence, only appropriate when the complaint 

on its face demonstrates that the requirements of class certification cannot be met. Ehrhart v. 

Synthes (USA), 2007 U.S. Dist. LEXIS 94760, *12 (D.N.J. Dec. 21, 2007). The better course is 

to deny such a motion. Id. at *13. 

In its motion, Defendant argues that it meets this stringent standard because Plaintiff will 

not be able to establish that joinder is impracticable and because the NJWHL class action will

not meet the superiority test of Rule 23(b)(3). The Court should reject this argument for two 

reasons. First, this argument is premature. Plaintiff has not yet had the opportunity to gather, 

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assess, and present evidence establishing that joinder is, in fact, impracticable or that a class 

action would be the superior mechanism for hearing these claims. This can only be 

accomplished with discovery. Second, Plaintiff has met its pleading burdens of showing that the 

class is so numerous that joinder is impracticable and that a class action is a superior method for 

adjudicating this controversy. See Complaint at ¶ 21, 25.

A. Plaintiff’s Pleadings Establish that the Potential Class Meets Rule 23(A) 

Numerosity Requirement because the Class is Sufficiently Numerous and 

Class Treatment will Result in Substantial Savings of Judicial Resources

Though there is no threshold number of class members that automatically satisfies the 

numerosity requirement, the numerosity prong is generally satisfied if the potential number of 

plaintiffs exceeds forty. Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001) (“if the named 

plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 

23(a) has been met”). Accepting as true the factual allegations in Plaintiff’s Complaint, the 

potential class in this case numbers, at least, in the 100s. This is enough to survive Defendant’s

instant motion and provide Plaintiff the opportunity to take class discovery. 

Defendant nevertheless argues that joinder is not impracticable because of the 

opportunity potential class members will have to join the litigation through the potential FLSA 

collective action. Defendant’s first argument is simply its incompatibility argument discussed 

above, repackaged. Defendant argues that because potential class members may join this case 

through the FLSA collective action, there would be no judicial economy in allowing a class 

action to proceed and those who opt-in to the FLSA can easily join their state law claims. This 

argument leaves out those individuals who do not opt-in to the FLSA collective action, the 

individuals whose rights are at the heart of this motion. In examining whether to certify a class, 

this Court will need to focus on those individuals, and determine whether joinder is practicable 

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for them. While this determination cannot be made until the actual class is determined, it is likely

that there will be at least a substantial number of class members who will not opt-in to the FLSA 

collective action. Joinder will be impractical for these individuals, and a failure to certify the 

class may well lead to multiple and duplicative actions that waste judicial resources. 

Based on the foregoing, this Court should not dismiss Plaintiff’s class action allegations 

at the pleadings stage based on Defendant’s unsupported argument that there would be no 

judicial economy in allowing a class action to proceed.

B. Plaintiff’s Pleadings Establish that a Class Action is Superior to Other 

Available Methods to the Fair and Efficient Adjudication of the Controversy

Plaintiff’s pleadings also establish that a class action would be a superior method of 

efficiently adjudicating the instant controversy. The superiority requirement is closely related to 

Rule 23’s predominance requirement (which Defendant does not challenge in the instant 

motion). See Weisfeld v. Sun Chem. Corp., 84 Fed. Appx. 257, 263 (3d Cir. 2004) (“[the 

superiority] requirement is closely related to the predominance requirement”). These 

requirements typically turn on whether class members’ claims would turn upon individualized 

factual evaluations. See Barabin v. Aramark Corp., 2003 U.S. App. LEXIS 3532 (3d Cir. Jan. 

24, 2003); see, e.g., Barnes v. American Tobacco Co., 161 F.3d 127, 131 (3d Cir. 1998) (noting 

that individual factual determinations made class action litigation unmanageable); In re School 

Asbestos Litigation, 977 F.2d 764, 796 (3d Cir. 1992) (expressing concerns that differences 

between state laws prevented common issues from predominating). Because Defendant has not 

argued that class members claims will require individualized evaluations, and because whether 

class members were denied overtime wages will depend on a common determination of whether 

Defendant miscalculated class members’ base and overtime rate, this Court should deny 

Defendant’s motion for this reason as well. 

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Defendant’s additional argument that litigation involving dual certification would be 

unmanageable should be similarly disregarded. Courts routinely certify multiple sub-classes. In 

the instant case, Plaintiff is aware of only two potential sub-classes. Thus, to the extent that class 

notice is complicated by having multiple sub-classes, Defendant fails to explain how such notice 

is more complicated than notice in other multiple-claim complex litigation, e.g., notice in a 

FLSA collective action joined with a Rule 23 Title VII action. 

Moreover, to the extent that a dual certification action notice is more complicated than a 

typical Rule 23(b)(3) class action notice, this added complexity may be addressed by clear 

organization and careful wording explaining the different procedural requirements. See, e.g., 

Sherhill v. Cellco P’ship, 2008 U.S. Dist. LEXIS 91477 (E.D. Pa. Apr. 7, 2008) (“Not only is 

this argument premature at this early stage in the litigation, prior to certification, but any 

potential confusion in the class notice can be overcome by careful wording and thoughtful 

organization”).

V. THIS COURT HAS ORIGINAL JURISDICTION OVER PLAINTIFF’S NJWHL 

CLAIMS UNDER THE CLASS ACTION FAIRNESS ACT

Finally, even should this Court somehow decline to exercise supplemental jurisdiction 

over Plaintiff’s NJWHL class action allegations, this Court likely possesses original jurisdiction 

over Plaintiff’s NJWHL claims under the Class Action Fairness Act of 2005 (“CAFA”). 

CAFA grants federal courts original jurisdiction over class actions in which there are 100 

or more class members, the amount in controversy (when aggregating the claims of each class 

member) exceeds $5,000,000, and any member of the class is a citizen of a State different from 

any defendant. 

Though the Complaint alleges a class size of at least several dozen, informal investigation 

has revealed that the actual potential class size is several hundred individuals. Given that each 

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individual’s damages have been calculated to average at least $40,000 and in many cases 

substantially more, the amount in controversy also meets CAFA’s $5,000,000 threshold. Since

Defendant’s United States operations are headquartered in Florida and most class members will 

be citizens of New Jersey or one of its neighboring states, this Court will very likely possess 

original jurisdiction under CAFA. 

In Jackson v. Alpharma, Chief Judge Brown held that where federal courts have 

independent original jurisdiction over state law class action claims, it would be inappropriate to 

dismiss those claims from a FLSA collective action. 2008 U.S. Dist. LEXIS 12787 at *16 

(D.N.J. Feb. 21, 2008). Thus, even if this Court should decline to exercise supplemental 

jurisdiction over Plaintiff’s class action claims, this Court should allow Plaintiff to amend his 

pleadings to allege this independent basis of jurisdiction.

CONCLUSION

Based on the foregoing reasons, this Court should deny Defendant’s motion to dismiss. 

Respectfully Submitted, 

/s Joshua S. Boyette 

SWARTZ SWIDLER LLC

Joshua S. Boyette, Esq.

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