Opinion
CIVIL ACTION NO. 1:20-CV-00179
2022-03-21
Jon M. COSTELLOW, Individually and on Behalf of All Those Similarly Situated, Plaintiffs, v. BECHT ENGINEERING CO. INC., Becht Field Services LLC, Defendants.
Mark William Frasher, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiff Jon M. Costellow. Mark William Frasher, John Gerard Werner, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiff All Plaintiffs. Roytrael Browne, Pro Se. Richard Creel, Pro Se. Joseph Gregory Galagaza, Phillip Baggett, Jackson Lewis P.C., Houston, TX, for Defendants.
Mark William Frasher, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiff Jon M. Costellow.
Mark William Frasher, John Gerard Werner, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiff All Plaintiffs.
Roytrael Browne, Pro Se.
Richard Creel, Pro Se.
Joseph Gregory Galagaza, Phillip Baggett, Jackson Lewis P.C., Houston, TX, for Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Michael J. Truncale, United States District Judge
Before the Court is Defendants’ Becht Engineering Co. ("Becht") and Becht Field Services ("BFS") Motion to Dismiss for Lack of Personal Jurisdiction. [Dkt. 75]. Defendants assert that this Court does not have personal jurisdiction over out-of-state opt-in Plaintiffs who have claims under the Alaska Wage and Hour Law, AK Stat. § 23.10.50, et seq. (2020) and the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") based on pay practices conducted outside of Texas. For the following reasons, Defendants’ Motion to Dismiss is DENIED .
I. BACKGROUND
This case is an FLSA collective action regarding Defendants’ failure to pay overtime wages. On May 7, 2020, Plaintiffs filed their Third Amended Complaint, [Dkt. 4], which lists claims for a nationwide collective action based on Becht's unlawful pay practices. Becht did not file any motions to dismiss. Furthermore, Becht did not raise a personal jurisdiction defense in its Answer to the Third Amended Complaint. On June 26, 2020, Plaintiffs moved for conditional class certification under the FLSA, seeking a nationwide collective action. Nowhere in its briefing on class certification did Becht raise the defense of personal jurisdiction for claims outside of Texas. On December 9, 2020, the Court issued an order defining the class as those employees who worked in a single facility in Port Arthur, Texas ("Original Class"). [Dkt. 41]. On February 17, 2021, Plaintiffs filed their Motion to Expand Class and Issue Notice. [Dkt. 52]. In it, Becht expressly agreed to an expanded class definition as follows:
Plaintiffs filed their Original, Second, and Third Amended Complaint all within a few days of each other and Becht only answered the Third Amended Complaint. Therefore, this Court refers to the operative original complaint as the Third Amended Complaint for purposes of this Order.
Because the Original, Second, and Third Amended Complaints were filed within a few days of each other, Defendant Becht only filed a single answer to these complaints.
Current and former hourly employees of Becht Engineering Co., Inc. or Becht Field Services (referred to as "Becht"): (1) who worked for either company at any location(s) within any state of the United States or the District of Columbia between July 1, 2017 and the present; (2) who were paid the same hourly rate for all hours worked in any workweek including any hours worked over 40 in a workweek; and (3) who were not paid 1.5 times their hourly rate for all hours worked over 40 hours in a work week.
[Dkt. 52]. In line with the agreed motion, the Court entered an order expanding the class on April 6, 2021 ("Second Class"). [Dkt. 60]. Based on the order, Plaintiffs issued notice to Defendants’ out-of-state employees, resulting in an additional fifty-one opt-ins ("Alaska Plaintiffs"). Additionally, on July 15, 2021, the parties entered into a stipulation ("Stipulation"), which added Becht Field Services ("BFS") as a named party defendant; classified Becht and BFS as joint employers; and waived service on BFS. Pursuant to the Stipulation, on July 19, 2021, Plaintiffs filed their Fourth Amended Complaint, which added the following: (1) added BFS as a party defendant; (2) added Christine Morse as a class representative for the Alaska Plaintiffs; and (3) added additional state law claims under the Alaska Wage and Hour Law, AK Stat. § 23.10.50, et seq. (2020).
Not all of these opt-ins were from, lived, or worked in Alaska. However, the vast majority of these claimants have a connection to Alaska.
On August 23, 2021, Defendants filed the instant Motion to Dismiss, asserting that this Court lacks personal jurisdiction over the claims regarding the Alaska Hour and Wage Law or the claims of the Alaska Plaintiffs against either Defendant because those claims do not have sufficient connection to Texas. Plaintiffs responded on September 20, 2021, [Dkt. 83], and Defendants replied on October 4, 2021 [Dkt. 94]. The motion is now ripe for ruling.
II. ANALYSIS
Defendants’ Motion to Dismiss asserts that this Court may not exercise personal jurisdiction over the Alaska Plaintiffs’ claims against either Defendant because their claims lack a connection to Texas. The Court finds that although it may not exercise general personal jurisdiction over Defendants, it may exercise specific personal jurisdiction over Defendants because they waived that defense. Finally, the Court evaluates the doctrine of judicial estoppel, holding that Defendants’ inconsistent representations to the Court bars them from obtaining dismissal.
(a) Personal Jurisdiction
Personal jurisdiction concerns which forum may exercise power over a defendant and acts as a limitation on the forum's authority to adjudicate disputes before it. This limitation is born from the Due Process Clause and is meant to protect a party's liberty interest. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). To "exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Cap. Intern., Ltd. v. Rudolf Wolff & Co., Ltd. , 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). In federal actions, Federal Rule of Civil Procedure 4 governs service of summons. Id. Rule 4 provides that service is appropriate over a defendant "when authorized by statute" or where the defendant "is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Fed. R. Civ. P. 4(k). The FLSA, which forms the statutory basis for this litigation, does not permit nationwide service of process. Therefore, "service can only be effective to the extent a Texas state court of general jurisdiction could exercise jurisdiction over Defendants." Greinstein v. Fieldcore Servs. Sols., LLC , No. 2:18-CV-208-Z, 2020 WL 6821005, at *3 (N.D. Tex. Nov. 20, 2020). This jurisdiction is determined by Texas’ long arm statute, which permits courts to exercise jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment. Sayers Constr., LLC v. Timberline Constr. Inc. , 976 F.3d 570, 573 (5th Cir. 2020). The Fourteenth Amendment requires that the defendant have "certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ " Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 923, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). These minimum contacts can be classified into two different types of personal jurisdiction: (1) general; and (2) specific. Next, the Court will evaluate both of these types of personal jurisdiction, finding that although the Court may not exercise general jurisdiction over Defendants, the Court may exercise specific jurisdiction over Defendants.
The Court is aware that general jurisdiction may refer to a court's authority to hear a specific type of case, such as the general jurisdiction of state courts to hear any case except for those prohibited by state or federal law. For purposes of this Order, the Court refers to specific personal jurisdiction and general personal jurisdiction as specific jurisdiction and general jurisdiction, respectively.
(i) General Jurisdiction
This Court does not maintain general personal jurisdiction over either Defendant. General jurisdiction (all-purpose jurisdiction) permits courts to exercise jurisdiction over corporations whose "continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." Int'l Shoe , 326 U.S. at 318, 66 S.Ct. 154. General jurisdiction exists in the corporate defendant's state of incorporation or principal place of business. Daimler AG v. Bauman , 571 U.S. 117, 134 S. Ct. 746, 760, 187 L.Ed.2d 624 (2014). The principal place of business is the defendant's "nerve center," which is typically its corporate headquarters—"the actual center of direction, control, and coordination." Hertz Corp. v. Friend , 559 U.S. 77, 92–93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Courts may also maintain general jurisdiction where the defendant's contacts with the forum are so "continuous and systematic" as to "render them essentially at home in the forum state." BNSF Ry. v. Tyrrell , ––– U.S. ––––, 137 S. Ct. 1549, 1558, 198 L.Ed.2d 36 (2017). This latter set of criteria for finding general jurisdiction is limited to "exceptional case[s]." Id. An example of an "exceptional case" is Perkins v. Benguet Consolidated Mining Company , 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). The Court found general jurisdiction over a company that relocated its central headquarters from the Philippines to Ohio during World War II. Id. "Because Ohio then became the center of the corporation's wartime activities, suit was proper there." BNSF Ry. , 137 S. Ct. at 1558. Given the high bar set by the Supreme Court, the Fifth Circuit has found that "[i]t is ... incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business." Monkton Ins. Servs., Ltd. v. Ritter , 768 F.3d 429, 432 (5th Cir. 2014). Merely doing business in the state is not enough. See Daimler , 571 U.S. at 138 n.18, 134 S.Ct. 746. Instead, Courts must assess "the company's local activity not in isolation, but in the context of the company's overall activity." Nunes v. NBCUniversal Media, LLC , 582 F.Supp.3d 387, 396 (E.D. Tex. 2021).
Given the high bar required for general jurisdiction, this Court cannot exercise general jurisdiction over either Defendant. Both Defendants’ principal places of business, their headquarters, are in New Jersey. [Dkt. 72 ¶ 20]. Furthermore, Becht was incorporated in New Jersey and BFS was incorporated in Delaware. [Dkt. 75-2].
Therefore, the Court must determine whether Defendants’ contacts with Texas are so "continuous and systematic" as to "render them essentially at home" in Texas. See BNSF Ry. , 137 S. Ct. at 1558. They are not. Plaintiffs contend that this Court should find general jurisdiction over Defendants due to "Becht's doing business for 15 years in multiple worksites in Texas, maintaining multiple offices in Texas (Humble and Baytown), maintaining upper management leadership in Texas (Bonnie Winkler, Marga Briggs, Rachel Shannon, David Troha), and intaking/reviewing time records containing workers hours worked." [Dkt. 83 at 25]. These contacts are insufficient to confer this Court with general jurisdiction. By comparison, in Nunes , another court in the Eastern District of Texas found that maintaining "corporate and retail offices and agents throughout Texas, including in Austin, Dallas, Dallas-Fort Worth, El Paso, Houston, McAllen[,] and San Antonio" was not enough for exercising general jurisdiction. Nunes , 582 F.Supp.3d at 396 ; see also Aziz v. MMR Grp., Inc. , No. H-17-3907, 2018 WL 3439637, at *4 (S.D. Tex. July 17, 2018) (finding no general jurisdiction over a foreign corporation that owned and operated four permanent facilities with multiple employees in Texas); Garcia Hamilton & Assocs., L.P. v. RBC Cap. Mkts., LLC , 466 F. Supp. 3d 692, 701 (S.D. Tex. 2020) (finding no general jurisdiction over foreign corporation with four offices, 240 employees, and a business presence in Texas). Placed in the context of all of these cases in the Southern and Eastern Districts, it becomes clear that neither Becht nor BFS can be considered at home in Texas. Therefore, this Court does not maintain general jurisdiction over Defendants. (ii) Specific Jurisdiction
This Court maintains specific jurisdiction over Defendants because Defendants have waived their specific jurisdiction rights. Specific jurisdiction (case-specific jurisdiction) exists where a defendant's contacts with the forum give rise to the injury. It is meant to assert power over defendants who, despite their relatively few contacts with the forum, purposefully directed their activities to the state, and those activities are related to the injury. Asahi Metal Ind. Co. v. Super. Ct. , 480 U.S. 102, 108–09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). The Fifth Circuit uses a three-step analysis in this inquiry:
(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable.
Libersat v. Sundance Energy, Inc. , 978 F.3d 315, 318–19 (5th Cir. 2020). There is considerable debate amongst the circuits regarding whether a court may maintain specific jurisdiction over out-of-state claims in FLSA collective actions. The crux of this disagreement stems from the Supreme Court's holding in Bristol-Myers Squibb Co. v. Superior Court , ––– U.S. ––––, 137 S. Ct. 1773, 1781, 198 L.Ed.2d 395 (2017). In Bristol-Myers , the Court confronted whether a California state court could exercise specific jurisdiction in a mass tort action over the claims of out-of-state plaintiffs who did not suffer their injuries in California. The Court found that California could not exercise personal jurisdiction over out-of-state claims because "all the conduct giving rise to nonresidents’ claims occurred elsewhere." Id.
Circuit courts across the country have struggled to apply Bristol-Myers to FLSA collective actions. Compare Waters v. Day & Zimmermann NPS, Inc. , 23 F.4th 84 (1st Cir. 2022) (finding that Bristol-Myers does not apply to FLSA collective actions) (petition for certiorari filed), with Canaday v. Anthem Cos., Inc. , 9 F.4th 392 (6th Cir. 2021) (finding that Bristol-Myers applies to FLSA collective actions) (reh'g en banc denied ) (petition for certiorari filed), and Vallone v. CJS Solutions Group, LLC , 9 F.4th 861 (8th Cir. 2021) (finding that Bristol-Myers applies to FLSA collective actions). Despite the differing opinions of district courts within our circuit, the Fifth Circuit has not yet spoken. Compare Greinstein v. Fieldcore Servs. Sols., LLC , No. 2:18-CV-208-Z, 2020 WL 6821005, at *11 (N.D. Tex. Nov. 20, 2020) (finding that Bristol-Myers applies to FLSA collective actions), and Martinez v. Tyson Foods, Inc. , 533 F. Supp. 3d 386 (N.D. Tex. 2021) (finding that Bristol-Myers applies to FLSA collective actions), with Cedarview Mart, LLC v. State Auto Prop. & Cas. Co. , No. 3:20-cv-107, 2021 WL 1206597 (N.D. Miss. March 30, 2021) (finding that Bristol-Myers does not apply to FLSA collective actions), and Garcia v. Vasilia , 319 F. Supp. 3d 863, 879–80 (S.D. Tex. 2018) (finding that Bristol-Myers does not apply to FLSA collective actions). While this case may seem like a prime opportunity to enter the fray, this Court does not need to; Defendants waived their personal jurisdiction defense. (a) Waiver
The Court uses the concepts of waiver and consent interchangeably. "In terms of submission to a court's jurisdiction, it is possible to attempt fine distinctions between ‘waiver’ and ‘consent.’ ... We view such distinctions as artificial and unnecessary, at least for the purpose at hand." Gen. Contracting & Trading Co., L.L.C. v. Interpole, Inc. , 940 F.2d 20, 23 (1st Cir. 1991)
Because personal jurisdiction is a right involving a defendant's liberty, it may be waived. Gen. Contracting & Trading Co., L.L.C. v. Interpole, Inc. , 940 F.2d 20, 23 (1st Cir. 1991). Rule 12(h) governs waiver of certain defenses under Rule 12(b). Fed. R. Civ. P. 12(h). Typically, "a party's right to object to personal jurisdiction certainly is waived under Rule 12(h) if such party fails to assert that objection in his first pleading or general appearance." Jackson v. FIE Corp. , 302 F.3d 515, 523 (5th Cir. 2002). However, "A defendant may manifest consent to a court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct." Interpole , 940 F.2d at 23. This may include contractual provisions waiving service of process. In Petrowski v. Hawkeye-Security Co. , 350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956), the Supreme Court held that a party waived its right to assert a personal jurisdiction defense by stipulating to waive service of process. See also Nat'l Equip. Rental, Ltd. v. Szukhent , 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (finding that an agreement to appoint an agent for service of process in a foreign jurisdiction is sufficient for consent to personal jurisdiction).
The Court notes that this is a case from the First Circuit and therefore does not carry precedential effect in the Fifth Circuit. However, both the Fifth Circuit and district courts within it have cited to Interpole with approval. See Brokerwood Prods. Int'l, Inc. v. Cuisine Crotone, Inc. , 104 F. App'x 376, 380 (5th Cir. 2004) ; PaineWebber Inc. v. Chase Manhattan Private Bank (Switzerland) , 260 F.3d 453, 459 n.6 (5th Cir. 2001) ; Am. Family Life Assur. Co. of Columbus v. Biles , No. 3:10CV667TSL-FKB, 2011 WL 4014463, at *2 (S.D. Miss. Sept. 8, 2011).
Here, the Stipulation adding BFS as a named party to this lawsuit waived BFS's right to personal jurisdiction. The Stipulation reads:
It is hereby stipulated that Becht Engineering Co., may be considered a joint employer of the employees of Becht Field Services, LLC for purposes of this Lawsuit only, provided that Plaintiffs file an amended pleading adding Becht Field Services, LLC as a party defendant to this Lawsuit. Becht Field Services, LLC will waive service of process.
[Dkt. 83, Ex. I]. This Stipulation clearly expresses the intent of the parties to add BFS to the lawsuit and constitutes consent to the personal jurisdiction of this Court. Like the stipulation in Petrowski permitting waiver of service of process, the Stipulation forms a binding contract to expose BFS to the jurisdiction of this Court. The fact that the Petrowski stipulation expressly waived personal jurisdiction is not dispositive, as waiver of service is sufficient. "The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause." Ins. Corp. of Ireland , 456 U.S. at 702–03, 102 S.Ct. 2099. One of the touchstones of procedural due process is proper service of process. See Omni Capital , 484 U.S. at 104, 108 S.Ct. 404 (holding that due process concerns related to personal jurisdiction are alleviated where the defendant has consented to service); see also Norris v. Causey , 869 F.3d 360, 368 (5th Cir. 2017). Here, the Stipulation's waiver of service of process and the agreed addition of BFS as a party defendant are sufficient to constitute consent to this Court's personal jurisdiction over BFS. Furthermore, Defendants signed the Stipulation after the parties agreed to the class expansion. Therefore, Defendants knew that they would be subject to the Court's jurisdiction over out-of-state claims. Despite this knowledge, BFS still consented to be added as a named defendant in this lawsuit. Such consent is strong evidence that "the maintenance of the suit ... [does] not offend traditional notions of fair play and substantial justice." Int'l Shoe , 326 U.S. at 316, 66 S.Ct. 154. In addition to the Stipulation, Defendants waived their personal jurisdiction defense by agreeing to an expanded class that included the very claims that Defendants are attempting to remove from this litigation. By agreeing to bring the Alaska Plaintiffs into the collective action, Defendants implicitly consented to this Court's exercise of personal jurisdiction over those claims.
Defendants rely heavily on Cruson v. Jackson National Life Insurance Company , however, that case is distinguishable from the facts at bar. 954 F.3d 240 (5th Cir. 2020). In Cruson , plaintiffs filed their complaint asserting, inter alia , claims for a nationwide class. Defendant filed a motion to dismiss under Rules 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim) but failed to move to dismiss under Rule 12(b)(2) (lack of personal jurisdiction). However, defendant raised the 12(b)(2) defense in its answer regarding potential out-of-state class claims. After plaintiffs moved for class certification, defendant again raised its personal jurisdiction defense for out-of-state class claims. The district court found that defendant waived its personal jurisdiction defense by not raising it in its original motion to dismiss. The Fifth Circuit reversed, finding that the personal jurisdiction defense was not available to defendant when it filed its initial motions to dismiss because the class claims were not before the court until plaintiffs moved for certification. Id. at 250. The court found that "[c]ertification of a class is the critical act which reifies the unnamed class members and, critically, renders them subject to the court's power." Id. (quoting In re Checking Account Overdraft Litig. , 780 F.3d 1031, 1037 (11th Cir. 2015) ). Cruson is distinguishable because the defendant in that case raised its personal jurisdiction defense both before and after class certification. By contrast, Defendants here did not raise the personal jurisdiction defense in response to the second expansion of the class. In fact, Defendants agreed to the class expansion involving out-of-state claims. It further stipulated to the addition of BFS as a party defendant after agreeing to a nationwide class. These actions do not conform to the consistent personal-jurisdiction-based opposition to nationwide class certification which formed the cornerstone of the Fifth Circuit's holding in Cruson . Given these distinctions, Cruson does not provide Defendants with a route to dismissal.
(b) Judicial Estoppel
Furthermore, the doctrine of judicial estoppel bars Defendants from now taking a contrary position to their initial agreed class expansion. The Supreme Court describes judicial estoppel as follows:
[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. This rule, known as judicial estoppel, generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.
New Hampshire v. Maine , 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotations and citations omitted). A showing of judicial estoppel has two requirements: "First, it must be shown that the position of the party to be estopped is clearly inconsistent with its previous one; and second, that party must have convinced the court to accept that previous position." Hall v. GE Plastic Pac. PTE Ltd. , 327 F.3d 391, 396 (5th Cir. 2003). Additionally, "[t]he court should consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Portillo v. Permanent Workers, L.L.C. , 793 F. App'x 255, 260 (5th Cir. 2019) (internal quotation marks and citations omitted).
The first prong here is met. Defendants presented inconsistent positions to the Court that may significantly prejudice the Alaska Plaintiffs. Defendants’ attempt to dismiss the Alaska Plaintiffs’ claims via the Motion to Dismiss, [Dkt. 75], is inconsistent with the Stipulation and the Motion to Expand Class and Issue Notice, [Dkt. 52], both of which were agreed. Initially, Defendants agreed to expand the class to include the Alaska Plaintiffs and add BFS as a named defendant. But through its Motion to Dismiss, Defendants now seek to have both BFS and the claims of the Alaska Plaintiffs dismissed from this lawsuit. The second prong is met because Defendants agreed to the expanded class and Stipulation, thereby convincing the Court to accept Defendant's consent to adjudicate all of the claims involved in this lawsuit. At best, this kind of artful pleading misleads the Court, and at worst is a demonstration of bad faith. Therefore, both prongs have been met for judicial estoppel.
Lastly, the Alaska Plaintiffs would face significant prejudice should the Court grant this Motion to Dismiss. The statute of limitations for FLSA claims is two years, and claimants may only collect back pay for violations within that period. Schulte v. Wilson Indus, Inc. , 547 F. Supp. 324, 343 (S.D. Tex. 1982). Generally, filing a lawsuit does not toll the statute of limitations for FLSA collective actions unless a court applies the doctrine of equitable tolling. 29 U.S.C. § 256(b) ; Carr v. AutoZoner, LLC , 501 F. Supp. 3d 1237, 1246 (N.D. Ala. 2020). Here, by agreeing to expand the class and add BFS to this lawsuit while subsequently filing a motion to dismiss those same parties and claims, Defendants would significantly reduce the Alaska Plaintiffs’ potential damages. Defendants stopped using the pay practice at issue for the Alaska Plaintiffs in October 2019. Therefore, assuming the two-year limitations period applies, the statute of limitations for their claims was October 2021. Defendants filed their Motion to Dismiss in August 2021, and Plaintiffs filed their response in mid-September, rendering the motion ripe for ruling. See E.D. Tex. Local Rule Cv-7(e). Even if this Court ruled on this Motion to Dismiss the day after Plaintiffs’ reply and granted the Motion to Dismiss, the Alaska Plaintiffs would be faced with a choice: refile their claims in a different forum or drop their claims altogether. Had the Alaska Plaintiffs filed their claims in a different forum the next day, the statute of limitations would only permit recovery of two weeks of back pay. 29 U.S.C. § 256(b) ; Carr , 501 F. Supp. 3d at 1246. This argument assumes a practically impossible timeline. It is significantly more likely that the Alaska Plaintiffs would be entirely time-barred from pursuing their claims should the Court grant Defendants’ motion. Given that such prejudice directly results from Defendants’ inconsistent representations to the Court, the Court finds that the doctrine of judicial estoppel bars Defendants from asserting a personal jurisdiction defense at this juncture.
The statute of limitations is extended to three years for willful violations. However, the Court will not speculate on a potential finding of willfulness and, therefore, assesses the FLSA statute of limitations as two years. This Court's use of the two-year statute of limitations here in no way has any effect on this Court's potential future finding of willfulness or lack thereof. The Court is aware that the issue of willfulness is highly disputed. The use of the two year limitations period is strictly limited to the Court's reasoning in this Order only and in no way binds this Court's future findings on the issue.
Although Plaintiffs requested and received a one-week extension to file their response, this extension is immaterial. Even if Plaintiffs filed their response in line with the original deadline of September 7, 2021, the Alaska Plaintiffs would still lose out on a significant portion of their overtime damages.
The Court takes no opinion on what this hypothetical forum would be.
III. CONCLUSION
For the foregoing reasons, it is therefore ORDERED that Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction is hereby DENIED .