Christa Fischer v. Federal Express Corp

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 21-1683

___________

CHRISTA B. FISCHER, INDIVIDUALLY AND ON
BEHALF OF OTHER SIMILARLY SITUATED
EMPLOYEES,
Appellant

v.

FEDERAL EXPRESS CORP.;
FEDEX GROUND PACKAGE SYSTEM

_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil No. 5-19-cv-04924
District Judge: Honorable John M. Gallagher
______________

Argued: January 26, 2022

Before: RESTREPO, MATEY, and SCIRICA,
Circuit Judges.
 (Filed: July 26, 2022)

Kelly A. Burgy
Benjamin L. Davis, III
Scott E. Nevin
Suite 1700
36 South Charles Street
Baltimore, MD 21201

Adam W. Hansen [ARGUED]
Apollo Law
333 Washington Avenue North
Suite 300
Minneapolis, MN 55401

Colin R. Reeves
Apollo Law
1314 Pacific Street
Brooklyn, NY 11216

Scott M. Pollins
800 Westdale Avenue
Swarthmore, PA 19081

Counsel for Appellants Christa B. Fischer and Andre
Saunders

Scott L. Nelson
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009

Counsel for Amicus Appellant Public Citizen Inc

2
Frederick L. Douglas [ARGUED]
Brandon D. Pettes
Federal Express Corporation
3620 Hacks Cross Road
Building B, 3rd Floor
Memphis, TN 38125

Counsel for Appellee Federal Express Corp

Benjamin Ferron, Esq.
FedEx Ground Package System, Inc.
1000 FedEx Drive
Moon Township, PA 15108

Counsel for Appellee FedEx Ground Package System

David R. Fine
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101

Counsel for Amicus Appellee Chamber of Commerce of
the United States of America

3
Philip S. Goldberg, Esq.
Shook Hardy & Bacon
1800 K. Street, NW
Suite 1000
Washington, DC 20006

Counsel for Amicus Appellee International Association of
Defense Counsel

_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge

Appellant Christa Fischer, a Pennsylvania resident who
worked for nearly ten years as a security specialist for
Appellees Federal Express Corp. (“FedEx”) and FedEx
Ground Package System (“FedEx Ground”), brought this
collective action under Section 216(b) of the Fair Labor
Standards Act (“FLSA”) in the Eastern District of
Pennsylvania. Fischer alleges FedEx misclassified her and
other FedEx security specialists as exempt from the FLSA’s
overtime rule and underpaid them.

Two out-of-state former FedEx employees, Andre
Saunders, from Maryland, and Andrew Rakowsky, from New

4
York, submitted notices of consent, seeking to join Fischer’s
collective action. Saunders and Rakowsky both worked for
FedEx in their home states but, other than FedEx’s allegedly
uniform nationwide employment practices, have no connection
to Pennsylvania related to their claims. The District Court did
not allow these two opt-in plaintiffs to join the suit, reasoning
that, as would be true for a state court under Bristol-Myers
Squibb Co. v. Superior Ct., __ U.S. __, 137 S. Ct. 1773 (2017),
the district court lacked specific personal jurisdiction over
FedEx with respect to the out-of-state plaintiffs’ claims.

We granted Appellants’ petition for interlocutory
appeal to resolve whether, in an FLSA collective action in
federal court where the court lacks general personal
jurisdiction over the defendant, all opt-in plaintiffs must
establish specific personal jurisdiction over the defendant with
respect to their individual claims. The Sixth and Eighth
Circuits have answered in the affirmative, holding FLSA opt-
in plaintiffs’ claims must arise out of or relate to the
defendant’s minimum contacts with the forum state. See
Canaday v. Anthem Cos., 9 F.4th 392 (6th Cir. 2021); Vallone
v. CJS Sols. Grp., LLC, 9 F.4th 861 (8th Cir. 2021). The First
Circuit has answered in the negative, holding that, while initial
plaintiffs’ claims must arise out of or relate to the defendant’s
minimum contacts with the forum state—the test of the
constitutional limit under the Fourteenth Amendment—opt-in
plaintiffs’ claims need only arise out of or relate to a
defendant’s minimum contacts with the entire nation—the test
of the constitutional limit under the Fifth Amendment. See
Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84 (1st Cir.
2022).

We join the Sixth and Eighth Circuits and hold that,

5
where the basis of personal jurisdiction in an FLSA collective
action in a federal court is specific personal jurisdiction
established by serving process according to Federal Rule of
Civil Procedure 4(k)(1)(A), every plaintiff who seeks to opt in
to the suit must demonstrate his or her claim arises out of or
relates to the defendant’s minimum contacts with the forum
state. In this way, the specific personal jurisdiction analysis
for an FLSA collective action in federal court operates the
same as it would for an FLSA collective action, or any other
traditional in personam suit, in state court. Accordingly, we
will affirm the District Court’s judgment because the out-of-
state opt-in plaintiffs here cannot demonstrate their claims
arise out of or relate to FedEx’s contacts with Pennsylvania.

I.

Appellant Christa Fischer is a Pennsylvania resident
who worked for FedEx in Lewisbury and Williamsport,
Pennsylvania from approximately August 2005 to July 2019.
On October 22, 2019, she filed a complaint against FedEx in
the Eastern District of Pennsylvania, alleging FedEx
misclassified employees in her position as exempt from the
FLSA’s overtime rule and, accordingly, seeking unpaid
overtime. Under the FLSA’s collective action device in 29
U.S.C. § 216(b), Fischer brought her suit on behalf of herself
and “other similarly situated employees,” alleging FedEx had
misclassified these employees around the country. FedEx 1 is

1
Before the District Court, Appellants argued that FedEx
Ground was a joint employer with FedEx. And since FedEx
Ground has a principal place of business in Pennsylvania, it
would be subject to general jurisdiction in Pennsylvania. The

6
incorporated in Delaware and its principal place of business is
in Tennessee.

On May 15, 2020, Fischer filed a motion for conditional
certification and court-authorized notice. On July 17, 2020 and
July 28, 2020, respectively, Andre Saunders, from Maryland,
and Andrew Rakowsky, from New York, submitted notices of
consent to join the litigation. Neither Saunders nor Rakowsky
worked for FedEx in Pennsylvania. And neither has alleged
any other connections to FedEx in Pennsylvania. On
December 23, 2020, the trial judge granted Fischer’s motion
for conditional certification.

The District Court held that, because no federal statute
authorizes nationwide service of process for opt-in plaintiffs in
FLSA collective actions, Fed. R. Civ. P. 4(k)(1)(A) requires a
federal court to follow the personal jurisdiction rules
applicable to a state court, including the requirement clarified
in Bristol-Myers that all claims must arise out of or relate to the
defendants’ minimum contacts with the forum state.
Considering the facts in this case, the District Court concluded
it lacked personal jurisdiction over FedEx with respect to the
putative opt-in plaintiffs who worked for FedEx outside
Pennsylvania. Accordingly, the District Court only certified
the collective action and authorized notice with respect to
security specialists employed by FedEx in Pennsylvania. The

trial judge found that FedEx Ground was not a joint employer,
and thus its principal place of business has no bearing on the
jurisdictional analysis. Fischer v. Fed. Express Corp., 509 F.
Supp. 3d 275, 290 (E.D. Pa. 2020). Appellants do not appeal
this finding, and we see no reason to disturb it.

7
plaintiffs now appeal that decision, arguing that the District
Court erred in applying Bristol-Myers to this FLSA collective
action because it was filed in federal court.

II.

We begin with a brief summary of the Supreme Court’s
decision in Bristol-Myers. That suit involved claims that a
Bristol-Myers-made drug, Plavix, had injured individuals who
took it. The suit included eight separate complaints,
collectively including over 600 named plaintiffs, all of which
had been aggregated into a single mass action under a
California state court aggregation rule. See Bristol-Myers, 137
S. Ct. at 1778. Only 86 plaintiffs were California residents; the
other 592 were residents of 33 other states. Id. The
nonresident plaintiffs “did not allege that they obtained Plavix
through California physicians or from any other California
source; nor did they claim that they were injured by Plavix or
were treated for their injuries in California.” Id.

Applying “settled principles regarding specific
jurisdiction” under the Fourteenth Amendment, id. at 1781, the
Supreme Court held Bristol-Myers’s “extensive activities in
California” were not sufficient to establish personal
jurisdiction over Bristol-Myers as to the claims of the non-
resident plaintiffs, id. at 1778. In doing so the Court clarified
several key questions in the law of personal jurisdiction.
Notably, Bristol-Myers explained that for a state court to have
specific personal jurisdiction over a defendant with respect to
a plaintiff’s claims, those claims must “arise out of or relate to
the defendant’s contacts with the forum.” Bristol-Myers, 137
S. Ct. at 1780 (modifications and citations omitted). Because
the out-of-state plaintiffs’ alleged injuries did not arise out of

8
or relate to Bristol-Myers’s specific contacts with California,
the California state courts lacked specific personal jurisdiction
over the company with respect to those claims. Id. at 1781.
The Court also explained that “[t]he mere fact that other
plaintiffs were prescribed, obtained, and ingested Plavix in
California—and allegedly sustained the same injuries as did
the nonresidents—does not allow the State to assert specific
jurisdiction over the nonresidents’ claims.” Id. at 1781. In
other words, even if a state court might have personal
jurisdiction over similar claims, other potential plaintiffs must
still demonstrate personal jurisdiction over the defendant with
respect to their own claims.

But the Supreme Court’s decision in Bristol-Myers
addressed a requirement placed on state courts by the
Fourteenth Amendment. Accordingly, it did not purport to
address the precise issue in this case, i.e., whether a nationwide
FLSA collective action brought in federal court is subject to
the same jurisdictional analysis as a mass action brought in a
California state court. Id. at 1784. Moreover, the Court left
open questions about how the decision might impact the
personal jurisdiction analysis for other procedural devices like
class actions. See id. at 1789 n.4 (Sotomayor, J., dissenting).

A.

The District Court held the analysis in Bristol-Myers
applied to Fischer’s FLSA action, despite this case being in
federal court rather than state court, and despite the differences
between the FLSA collective action and the California mass
action at issue in Bristol-Myers. Because the FLSA does not
authorize nationwide service of process, “service in this case is
only effective to the extent that Pennsylvania state courts may

9
exercise jurisdiction over a given defendant.” App. 14 (citing
Fed. R. Civ. P. 4(k)(1)(A)). Accordingly, “the sole question
becomes whether the Court may exercise jurisdiction pursuant
to the Fourteenth Amendment,” App. 14, the same ultimate
question that was at issue in Bristol-Myers.

The District Court here concluded the “collective action
opt-in plaintiffs are individual parties that join together and
allege the same harm against the same defendant.” App. 17.
“FLSA opt-in plaintiffs are no different than the plaintiffs in
[Bristol-Myers]. Therefore, their claims are subject to the same
jurisdictional limitations.” App. 18. Accordingly, because the
out-of-state opt-in plaintiffs “do not claim to have suffered
harm within the forum state,” they could not demonstrate the
“requisite connection between activities within the state and
the case at hand.” App. 23. Therefore, the District Court found
it could only certify a collective action consisting of
individuals who were employed in Pennsylvania, as it lacked
personal jurisdiction over the claims of any out-of-state
plaintiffs.

On appeal, Appellants contend the jurisdictional
problems highlighted by the Supreme Court in Bristol-Myers
are not present in an FLSA collective action brought in federal
court. In doing so, Appellants rely on several doctrines,
analogies to other procedural devices, and policy principles.
Ultimately, we find none of these arguments convincing for the
reasons described below.

B.

Appellants first contend opt-in plaintiffs’ claims in
FLSA actions should be exempted from the personal

10
jurisdictional requirement in the suit. They urge us to
analogize the FLSA collective action to a class action. They
contend that for class actions the “personal-jurisdiction
analysis occurs at the level of the suit,” not at the level of each
claim. Appellants’ Br. 8 (quotation marks and citation
omitted). Accordingly, they posit that, like class actions, we
should analyze the personal jurisdiction questions with
reference to the named plaintiff only. Once a court has
jurisdiction over the defendant with respect to the named
plaintiffs’ claims, the personal jurisdictional requirements for
the entire suit would be satisfied, and additional plaintiffs
could freely opt in regardless of whether they could satisfy the
Fourteenth Amendment’s minimum contacts requirements.

We believe Appellants’ analogy from class actions to
FLSA collective actions fails. We have long treated properly
certified class actions as a sui generis type of suit, with
different requirements and accompanying allowances from the
“ordinary” process of litigation. See Taylor v. Sturgell, 553
U.S. 880, 884 (2008) (describing class actions as one of
“[s]everal exceptions” that alter certain foundational rules of
litigation). Notably, courts adjudicating properly constituted
class actions can bind absent class members without their
presence as parties “where they are in fact adequately
represented by parties who are present.” Hansberry v. Lee, 311
U.S. 32, 42–43 (1940); see also Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348 (2011) (“[T]he class action is ‘an
exception to the usual rule that litigation is conducted by and
on behalf of the individual named parties only.’” (quoting
Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979))); Gen.
Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982). As the
Supreme Court observed in Hansberry, class actions are a
recognized exception from the “general application in Anglo-

11
American jurisprudence that one is not bound by a judgment in
personam in a litigation in which he is not designated as a party
or to which he has not been made a party by service of
process.” Hansberry, 311 U.S. at 40. Indeed, one of the
principal justifications for the class action device is to allow
courts the practical flexibility to better handle situations where
mass joinder is “impossible . . . because some are not within
the jurisdiction.” Id. at 41.

Over the last half century, courts and Congress have
constructed a careful balance designed to protect both the
absent class members (by ensuring their interests are being
adequately protected) and defendants (by making the res
judicata implications of a class action clearer). See Fed. R. Civ.
P. 23 advisory committee’s note, reprinted in 39 F.R.D. 69, 98
(1966); 7A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1753 (4th ed. 2022) [hereinafter
“Wright & Miller, Federal Practice and Procedure”]. This has
resulted in the important set of requirements, enshrined in Fed.
R. Civ. P. 23 (“Rule 23”), to govern judicial oversight of class
actions. These requirements are not merely incidental, but
rather inextricably intertwined with the class action device.
See Campbell v. City of L.A., 903 F.3d 1090, 1105 (9th Cir.
2018) ( “[B]ecause of the due process concerns inherent such
a proceeding, the district court must initially approve the
creation of a class and the appointment of an adequate
representative.”). It is these protections that allow an absent
class-action plaintiff to “sit back and allow the litigation to run
its course, content in knowing that there are safeguards
provided for his protection.” Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 810 (1985). The Supreme Court has rejected
attempts to circumvent these critical protections to treat cases
as de facto class actions when they do not contain these

12
procedural protections. See Taylor, 553 U.S. at 901 (rejecting
a doctrine that would have allowed courts to “create de facto
class actions at will” (quoting Tice v. Am. Airlines, Inc., 162
F.3d 966, 973 (7th Cir. 1998))).

If the requirements of Rule 23 are met and the court
decides to certify the class, the class “acquires an independent
legal status.” Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 75 (2013). The relevant entity for purposes of the litigation
after certification is the class, not the individuals who make up
the class. See id. Once certified, class actions “present ‘a
unitary, coherent claim’ that moves through litigation at the
named plaintiff’s direction and pace.” Canaday, 9 F.4th at 403
(quoting Lyngaas v. Curaden AG, 992 F.3d 412, 435 (6th Cir.
2021)). “[A]s a practical matter, a defendant litigates against
only the class representative.” Lyngaas, 992 F.3d at 435.
Because of this, courts have considered absent class members
in Rule 23 suits not to be “parties” for jurisdictional purposes.
See Molock v. Whole Foods Mkt. Grp., Inc., 952 F.3d 293, 297
(D.C. Cir. 2020) ( “[U]nnamed class members are treated as
nonparties for other purposes, including jurisdictional ones.”);
Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020) (“For
cases relying on specific jurisdiction over the defendant,
minimum contacts, purposeful availment, and relation to the
claim were assessed only with respect to the named
plaintiffs.”).

The Supreme Court itself has regularly entertained
nationwide classes where the plaintiff relied on specific
personal jurisdiction, without taking note of any procedural
defects. For instance, Wal-Mart Stores, Inc., v. Dukes, 564
U.S. 338 (2011), involved a nationwide class brought in
California against Wal-Mart, which was headquartered in

13
Arkansas and incorporated in Delaware. See Fourth Amended
Complaint at ¶¶ 14, 90, Dukes v. Wal-Mart Stores, Inc., 222
F.R.D. 137 (N.D. Cal. 2004), ECF No. 767. Phillips Petroleum
involved a nationwide class action brought in Kansas against a
defendant headquartered in Oklahoma and incorporated in
Delaware. 472 U.S. at 799. In neither case did the Supreme
Court find any jurisdictional deficiencies due to the presence
of claims by absent out-of-state class members. 2
Therefore, Bristol-Myers’s dictate that courts analyze
specific personal jurisdiction in terms of “connection[s]
between the forum and the specific claims at issue” is not in
tension with our existing approach to class actions. 137 S. Ct.

2
The holding in Philips Petroleum is significant for another
reason: Because Kansas state courts, unlike federal courts, are
unable to exercise personal jurisdiction beyond the limits of the
Fourteenth Amendment, the holding cannot be read as
somehow authorizing the exercise of jurisdiction under the
Fifth Amendment. The propriety of nationwide class actions
brought in state court, such as the one at issue in Philips
Petroleum, demonstrates that the proper personal jurisdiction
analysis for class actions does not turn on whether the
constitutional limit on jurisdiction is the Fourteenth
Amendment or the Fifth Amendment. That out-of-state
plaintiffs may be included in a class action in state court
necessarily implies that the personal jurisdiction analysis
applicable to class actions does not depend on the arguments
we discuss in Section II.E, infra, which would only apply in
federal court.

14
at 1781. 3 And in a class action, the relevant claim is the claim
of the class. Accordingly, we analyze the jurisdictional
questions with respect to the class as a whole, as exemplified
by the named plaintiff. Thus, we agree with many of our
colleagues across the appellate and trial benches who held have
that Bristol-Myers did not change the personal jurisdiction
question with respect to class actions. See, e.g., Lyngaas, 992
F.3d at 433 (“We decline to extend Bristol-Myers Squibb in
this manner. Long-standing precedent shows that courts have
routinely exercised personal jurisdiction over out-of-state
defendants in nationwide class actions, and the personal-
jurisdiction analysis has focused on the defendant, the forum,
and the named plaintiff, who is the putative class
representative.”); see also Mussat, 953 F.3d at 448; Molock v.
Whole Foods Mkt., Inc., 297 F. Supp. 3d 114, 126–27 (D.D.C.
2018), aff’d sub nom. Molock, 952 F.3d 293; Chernus v.
Logitech, Inc., No. 17-673(FLW), 2018 WL 1981481, at *7
(D.N.J. Apr. 27, 2018) (collecting cases).

C.

With this in mind, we return to Appellant’s analogy to
the class action device. Appellants contend that because

3
The Justices’ approach to oral argument in Bristol-Myers
further buttresses this conclusion. Justices Breyer and Kagan
both pressed the litigants on the implication their decision
might have for class actions. See Transcript of Oral Argument
at 17, 58–59, Bristol-Myers, 137 S. Ct. 1773 (No. 16-466).
Counsel for Bristol-Myers assured them that any decision they
authored in their favor would not need to disrupt class action
practice. Id. at 18.

15
Fischer’s claims are premised on FedEx’s specific contacts
with Pennsylvania, the trial court had specific personal
jurisdiction over this matter, and any opt-in plaintiffs, like
absent class action members, should be ignored for the
purposes of the jurisdictional analysis.

Nevertheless, the statutory text of the FLSA collective
action device, particularly as compared to Rule 23 and the
California aggregation rule at issue in Bristol-Myers, the
FLSA’s legislative history, and the weight of the caselaw,
demonstrate that FLSA suits should be treated as ordinary in
personam suits for purposes of personal jurisdiction.
Accordingly, opt-in plaintiffs are required to demonstrate the
court has personal jurisdiction with respect to each of their
claims.

1.

“Statutory interpretation, as we always say, begins with
the text.” Ross v. Blake, 578 U.S. 632, 638 (2016).
Section 216(b) of the FLSA provides:

An action to recover the liability
prescribed in 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

16
 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.

29 U.S.C. § 216(b).

The difference between the language of § 216(b) and
Rule 23 is striking. As the Second Circuit has observed, these
two provisions “bear little resemblance to each other.” Scott v.
Chipotle Mexican Grill, Inc., 954 F.3d 502, 519 (2d Cir. 2020).

The FLSA collective action device contains none of the
crucial requirements that allow the class action to be excepted
from certain rules of “general application in Anglo-American
jurisprudence.” Hansberry, 311 U.S. at 41–43. Instead, the
FLSA collective action only requires that the opt-in plaintiffs
be “similarly situated.” 29 U.S.C. § 216(b). As the Ninth
Circuit aptly explained, “[t]his gap between the requirements
of collective and class proceedings is to be expected, as many
of the rules specific to class actions have evolved to protect the
due process rights of absent class members, a consideration not
pertinent under the post-1947 FLSA.” Campbell, 903 F.3d at
1112. The lack of such mandatory protections and process for
FLSA collective actions means they should not be analogized
to class actions. See Taylor, 553 U.S. at 900–01; Canaday, 9
F.4th at 403; Campbell, 903 F.3d at 1112 (“[A]s
nonrepresentative actions, collective actions have no place for
conditions such as adequacy or typicality.”).

Furthermore, while courts often borrow language from
the class action context when discussing the “certification” of

17
a collective action, that is a misnomer. The FLSA does not
mandate courts take any action to certify a collective action.
29 U.S.C. § 216(b). The widely practiced common law
“certification” process courts have adopted only results in
notice to potential plaintiffs, rather than the creation of an
independent legal entity. See Genesis Healthcare Corp., 569
U.S. at 75 (“The sole consequence of conditional certification
[in an FLSA collective action] is the sending of court-approved
written notice to employees, who in turn become parties to a
collective action only by filing written consent with the court.”
(citation omitted)); Zavala v. Wal Mart Stores Inc., 691 F.3d
527, 536 (3d Cir. 2012) (“[T]he ‘conditional certification’ is
not really a certification. It is actually . . . the [facilitation of]
sending of notice to potential class members.” (citation
omitted)); Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1259 (11th Cir. 2008) (“Because similarly situated
employees must affirmatively opt into the litigation, the
decision to certify the action, on its own, does not create a class
of plaintiffs.”). That “[d]istrict courts have also allowed opt-
in plaintiffs to stay in the litigation, even after certification is
denied,” Mickles v. Country Club Inc., 887 F.3d 1270, 1280
(11th Cir. 2018), further demonstrates that FLSA collective
action “certification” is fundamentally different from the
certification of a Rule 23 class. While this linguistic
imprecision may not seem significant, the fact that certification
does not create an independent legal entity with its
accompanying rights and protections is a critical distinction
between the FLSA collective action and the Rule 23 class
action.

Once the class is certified, Rule 23(a) explicitly
contemplates the named plaintiff or defendant acting as a
“representative part[y].” Fed. R. Civ. P. 23(a). No analogous

18
language appears in § 216(b). See Campbell, 903 F.3d at 1113
(stating that the lack of any mention of a “class proceeding” in
§ 216(b) indicates an affirmative congressional choice to
distinguish an FLSA collective action from a Rule 23 class
action). In contrast, an opt-in plaintiff under § 216(b) becomes
a “party plaintiff.” 29 U.S.C. § 216(b). By defining them as
party plaintiffs, the statute indicates “opt-in plaintiffs should
have the same status in relation to the claims of the lawsuit as
do the named plaintiffs.” Prickett v. DeKalb Cnty., 349 F.3d
1294, 1297 (11th Cir. 2003); see also Mickles, 881 F.3d at 1278
(finding that opt-in plaintiffs remain parties until they are
dismissed, and may appeal adverse judgments in the same
manner as a named plaintiff); McLaughlin on Class Actions
§ 2:16 (2021) (“Unlike absent members of a certified class
action, any plaintiff who opts in to a collective action has full
party status and obligations.”).

Rule 23 also contains important post-certification
protections that are notably absent in § 216(b). Because absent
class members are not present in court, the court is authorized
to issue various orders “to protect class members and fairly
conduct the action.” Fed. R. Civ. P. 23(d)(1)(B). The FLSA
does not provide any analogous authority. Rule 23 also
establishes a rigorous system surrounding the settlement of
class actions in which absent class members are notified and
provided an opportunity to opt-out and to object. Fed. R. Civ.
P. 23(e). And before approval of the settlement, the court must
conduct a hearing and find “it is fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2). Once again, FLSA
collective actions contain none of these protections. See 29
U.S.C. § 216(b); McLaughlin on Class Actions § 2:16
(“Unlike class actions, which cannot be settled without notice
to absent class members under Rule 23(e), a collective action

19
may be settled without notice to absentee members.” (footnote
omitted)).

These differences do not solely manifest themselves in
the statutory text or during the certification process. The
essentially individual character of an FLSA collective action
litigation means “each FLSA claimant has the right to be
present in court to advance his or her own claim.” Wright &
Miller, Federal Practice and Procedure § 1807. And
defendants in an FLSA collective action retain the ability to
assert “highly individualized” defenses with respect to each of
the opt-in plaintiffs. Thiessen v. Gen. Elec. Cap. Corp., 267
F.3d 1095, 1107 (10th Cir. 2001); see also Morgan, 551 F.3d
at 1263 (finding the presence of individualized defenses does
not prevent an FLSA collective action from being brought);
Shabazz v. Morgan Funding Corp., 269 F.R.D. 245, 251
(S.D.N.Y. 2010) (allowing defendants to “assert individualized
issues that may result in factual disputes at trial” in an FLSA
collective action); Rodolico v. Unisys Corp., 199 F.R.D. 468,
484 (E.D.N.Y. 2001) (“[S]tanding alone, the prospect of
individual defenses should not defeat authorization of a
collective action in this case.”). Moreover, district courts
presiding over FLSA collective action trials typically instruct
juries to consider the claims of each plaintiff entirely
separately. 4

4
See, e.g., Verdict Form at 32–33, Lopez v. Genter’s Detailing,
Inc., No. 03:09-CV-553-G, 2011 WL 5119964 (N.D. Tex. Oct.
14, 2011) (including separate verdicts for each plaintiff in a
collective-action); Allan G. King & Andrew Gray, The
Unanimity Rule: “Black Swans” and Common Questions in
FLSA Collective Actions, 10 Fed. Cts. L. Rev. 1, 17–19 (2017)

20
 Accordingly, from start to finish, FLSA collective
actions are materially different from Rule 23 class actions with
regard to the representative nature of the suits.

2.

This gulf between FLSA collective actions and Rule 23
class actions is drawn into sharper relief when comparing the
FLSA collective action with the California aggregation rule at
the heart of Bristol-Myers.

The mass action at issue in Bristol-Myers was
coordinated under Cal. Civ. Proc. § 404 (West 2022) (the
“California Coordination Statute”). The California
Coordination Statute allows coordination of “civil actions
sharing a common question of fact or law” that are pending in
different courts. Cal. Civ. Proc. § 404. Coordination is
appropriate
if one judge hearing all of the actions for all
purposes in a selected site or sites will promote
the ends of justice taking into account whether
the common question of fact or law is
predominating and significant to the litigation;
the convenience of parties, witnesses, and
counsel; the relative development of the actions
and the work product of counsel; the efficient
utilization of judicial facilities and manpower;

(“In multi-plaintiff actions under the FLSA, the norm in
submitting jury interrogatories is to submit a single verdict
form for each plaintiff.”).

21
 the calendar of the courts; the disadvantages of
duplicative and inconsistent rulings, orders, or
judgments; and, the likelihood of settlement of
the actions without further litigation should
coordination be denied.

Id. § 404.1.

And unless otherwise specified, “all provisions of law
applicable to civil actions generally apply to an action included
in a coordination proceeding.” Cal. St. Rules of Court
3.504(a).

Unlike Rule 23, the California Coordination Statute
does not contemplate any parties acting in a representative
manner. And like FLSA collective actions, the California
Coordination Statute lacks the stringent procedural protections
of Rule 23. The California Coordination Statute, like an FLSA
collective action, still allows for each plaintiff to proceed with
different claims. 5 Coordination may be proper even if certain
issues might be “heavily individualized.” Ford Motor Co. v.
Superior Ct., 218 Cal. Rptr. 3d 185, 197 (Ct. App. 2017). Like
the FLSA’s use of the term “party plaintiffs,” the California

5
See, e.g., McGhan Med. Corp. v. Superior Ct., 14 Cal. Reptr.
2d 264, 271 (Ct. App. 1992) (noting that even though the
products at issue in a coordinated suit are “[s]everal and differ
in terms of manufacture, design and content” and the exact
claims differed, coordination was appropriate because
“depositions, interrogatories, admissions, collection of
physical data, etc., will be better achieved if done in a
coordinated manner”).

22
Coordination Statute defines the parties to the coordinated
action as each of the parties to the constituent actions. See Cal.
St. Rules of Court 3.501(13).

Based on this, the California Coordination Statute is
better understood as a species of joinder rather than a class
action device. See, e.g., Jasmine Networks, Inc. v. Superior
Ct., 103 Cal. Rptr. 3d 426, 436–37 (Ct. App. 2009) (comparing
Cal. Civ. Proc. § 404 to joinder and intervention). Courts,
including this one, have similarly described the FLSA
collective action device as a species of joinder. See, e.g.,
Genesis Healthcare Corp., 569 U.S. at 70 n.1 (describing
Section 216 as a “joinder process”); Mineo v. Port Auth. of N.Y.
& N.J., 779 F.2d 939, 941 n.5 (3d Cir. 1985) (describing § 216
as a form of “permissive joinder”); Campbell, 903 F.3d at
1104–05 (“The natural parallel [for FLSA named and opt-in
plaintiffs] is to plaintiffs initially named or later added under
the ordinary rules of party joinder.”). This comparative
dissimilarity between the FLSA collective action and the
California Coordination Statute on one hand, and Rule 23 class
actions on the other, indicates Appellant’s analogy to class
actions is inapt.
3.

The history of the FLSA collective action device further
supports our conclusion that it should not be treated as a class
action. Courts around the time of the FLSA’s establishment
read the statute to merely create a system of “permissive
joinder” rather than creating “so-called class actions.” Fink v.
Oliver Iron Mining Co., 65 F. Supp. 316, 318 (D. Minn. 1941)
(collecting cases); see also Pentland v. Dravo Corp., 152 F.2d
851, 854–55 (3d Cir. 1945) (characterizing the FLSA
collective action as a form of permissive joinder or a spurious

23
class action rather than a “true class suit”), superseded by
statute on other grounds as recognized in Knepper v. Rite Aid
Corp., 675 F.3d 249 (3d Cir. 2012). And when Rule 23 was
brought into the modern era in 1966, the Advisory Committee
took pains to explain their changes did not affect § 216. See
Fed. R. Civ. P. 23 advisory committee’s note, reprinted in 39
F.R.D. 69, 104 (1966) (“The present provisions of 29 U.S.C.
§ 216(b) are not intended to be affected by Rule 23, as
amended.”). The Advisory Committee also distinguished the
modern Rule 23 class actions from the historic spurious class
actions on which the FLSA collective action device was based
which were not supposed to “adjudicate the rights or liabilities
of any person not a party” and only provided an invitation to
intervene. 6 Id. at 99.
Over fifty years have passed since then, and Congress
has had opportunities to revise the FLSA collective action
device to bring it in line with the modern Rule 23. Congress
has revised § 216 multiple times, including as recently as 2018.
See, e.g., Consolidated Appropriations Act, Pub. L. No. 115-
141, Div. S, Title XII, § 1201(b), 132 Stat. 1148 (2018). The
fact Congress has chosen not to bring § 216 in line with Rule

6
Appellants suggest the historical inclusion of spurious class
actions in Rule 23 is a reason we should view opt-in collective
actions as a species of representative suit. We disagree. The
explicit exclusion of spurious class actions from modern Rule
23 illustrates a line the drafters intended to draw between
devices which would remain under the umbrella of Rule 23 and
those which would not. See Taylor, 553 U.S. at 901
(disapproving of “de facto class actions” that lack the
procedural protections of, for example, Rule 23 (quoting Tice,
162 F.3d at 973)).

24
23, indicates the statute should not be read to conform to Rule
23. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174
(2009) (“When Congress amends one statutory provision but
not another, it is presumed to have acted intentionally . . . .”).

4.

Given all this, it is unsurprising that the weight of prior
decisions supports finding that FLSA collective actions cannot
be analogized to Rule 23 class actions as Appellants urge.
When the Supreme Court has had occasion to compare the two
devices, it has stated “Rule 23 actions are fundamentally
different from collective actions under the FLSA.” Genesis
Healthcare Corp., 569 U.S. at 74. This principle has been
echoed by many of our sister courts. See Canaday, 9 F.4th at
402 (stating that the significant differences between Rule 23
and the FLSA “require different approaches to personal
jurisdiction”); Scott, 954 F.3d at 519 (noting differences
between “the language and structure of § 216(b) and the
modern Rule 23, which bear little resemblance to each other”);
Campbell, 903 F.3d at 1105 (stating a collective action “is not
a comparable form of representative action” and “is more
accurately described as a kind of mass action, in which
aggrieved workers act as a collective of individual plaintiffs
with individual cases—capitalizing on efficiencies of scale, but
without necessarily permitting a specific, named representative
to control the litigation”); Grayson v. K. Mart Corp., 79 F.3d
1086, 1106 (11th Cir. 1996) (“There is a fundamental,
irreconcilable difference between the class action described by
Rule 23 and that provided for by FLSA [§ 216(b)].”) (quoting
LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 289 (5th Cir.
1975)); Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201,
1206 (5th Cir. 1981) (finding a § 216(b) collective action

25
“cannot be deemed a representative action on behalf of the
individual employees of the type governed by a Rule 23
action”).

All told, the text, history, and weight of the case law
uniformly supports the view that FLSA collective actions are
fundamentally different from Rule 23 class actions. At bottom,
an FLSA collective action proceeds “as a kind of mass action,
in which aggrieved workers act as a collective of individual
plaintiffs with individual cases.” Campbell, 903 F.3d at 1105.
In contrast, a Rule 23 class action, once certified, is directed by
the named plaintiff and class counsel, representing the absent
class members, under the supervision of the court. See
Canaday, 9 F.4th at 403; Lyngaas, 992 F.3d at 435. The
Supreme Court has cautioned that courts “must be careful not
to apply rules applicable under one statute to a different statute
without careful and critical examination.” Fed. Express Corp.
v. Holowecki, 552 U.S. 389, 393 (2008). We would be doing
that if we were to expand the allowances given to class actions
due to their carefully balanced structure, to the FLSA
collective action device. Accordingly, we believe an FLSA
collective action should operate like an individual in personam
suit for purposes of personal jurisdiction, meaning the district
court must have personal jurisdiction over the defendant with
respect to each opt-in plaintiff’s individual claim.

D.

Having determined courts need personal jurisdiction
over a defendant with respect to all plaintiffs’ claims in FLSA
actions, we need to decide what is required of a federal district
court to do so. Under Fed. R. Civ. P. 4(k)(1)(A), we first ask
whether Pennsylvania’s service of process rules permit the

26
exercise of personal jurisdiction with respect to opt-in
plaintiffs’ claims. Here, because the out-of-state plaintiffs’
claims do not arise out of or relate to FedEx’s minimum
contacts with Pennsylvania, the District Court did not have
personal jurisdiction under Rule 4(k)(1)(A) broad enough to
reach those claims.

We then consider alternative theories whereby opt-in
plaintiffs might use § 216 to establish personal jurisdiction
directly with respect to opt-in plaintiffs’ claims, without
relying on the initial service of a summons under Rule
4(k)(1)(A). Because opting in to an FLSA collective action is
akin to a species of joinder, Appellants suggest a variety of
possible reasons a court might be free to exercise broader
personal jurisdiction than what is authorized under Rule
4(k)(1)(A). While we agree that a federal law could authorize
broader personal jurisdiction when parties join a suit as
compared to the initial filing of a suit, we disagree that § 216
is an example of a federal law that does so. And we are not
aware of any other general Civil Rule which changes this
analysis by authorizing the exercise of personal jurisdiction
over FedEx with respect to the opt-in plaintiffs’ claims here.

1.

At the highest level, the potential outer limits of the
personal jurisdictional authority of a federal court are defined
by the Due Process Clause of the Fifth Amendment. Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 368–69 (3d Cir. 2002). By
contrast, the potential outer limits of the personal jurisdictional
authority of a state court are defined by the Due Process Clause
in the Fourteenth Amendment. Bristol-Myers, 137 S. Ct. at
1779 (collecting cases).

27
 Appellants contend that in the absence of a source of
law which limits personal jurisdiction, federal courts are free
to exercise jurisdiction to the maximum extent permissible
under the Fifth Amendment. 7 But the personal jurisdictional
limits in the Fifth and Fourteenth Amendments are not self-
executing. See S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir.
2007) (“The power to exercise jurisdiction nationwide is not
self-executing. Mere contacts with the jurisdiction, even when
coupled with some kind of actual notice, are not sufficient to
invest the district court with in personam jurisdiction over a
party-in-interest.”). For a court to exercise personal
jurisdiction over a defendant, the defendant must be served
process, alerting the defendant to the pendency of the suit and
the nature of the claims against her. See Omni Capital Int’l,
Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)
(“[S]ervice of summons is the procedure by which a court
having venue and jurisdiction of the subject matter of the suit
asserts jurisdiction over the person of the party served.”)
(quoting Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, 444–
45 (1946)); Volkswagenwerk Aktiengessellschaft v. Schlunk,
486 U.S. 694, 700 (1988) (“Service of process refers to a
formal delivery of documents that is legally sufficient to charge
the defendant with notice of a pending action.”); Wright &
Miller, Federal Practice & Procedure, § 1063 (describing the
primary function of service of process as “provid[ing] the
mechanism for bringing notice of the commencement of an
action to the defendant’s attention and to provide a ritual that

7
The basis for subject matter jurisdiction in this suit is federal
question jurisdiction, because the suit was brought under the
FLSA.

28
marks the court’s assertion of jurisdiction over the lawsuit”).

In Omni Capital, the Supreme Court held, in the context
of establishing personal jurisdiction over a defendant at the
inception of a suit where the defendant had not been served or
consented to jurisdiction, federal courts could not look directly
to the Fifth Amendment to assess if jurisdiction would be
proper. See Omni Capital, 484 U.S. at 104 (“Before a federal
court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be
satisfied.”). Accordingly, “before a court may exercise
personal jurisdiction over a defendant,” in the absence of
consent, “there must be authorization for service of summons
on the defendant,” even in situations where the Fifth
Amendment itself does not prohibit the exercise of personal
jurisdiction. Omni Capital, 484 U.S. at 104. Specifically, the
Court identified Rule 4 of the Federal Rules of Civil Procedure
as the primary Congressionally authorized mechanism by
which a federal court could serve process and thus exercise
personal jurisdiction over a defendant. Id. at 104–05. It would
appear, therefore, the Supreme Court declined to fashion a
personal jurisdiction rule unique to federal courts in the
absence of authorization from Congress, even if the rule would
satisfy the Fifth Amendment. Id. at 104. And the Court
declined to exercise common law authority to craft a
jurisdictional rule where Congress had not authorized common
law rulemaking, because “the weight of authority, both in the
cases and in the commentary, considers statutory authorization
necessary to a federal court’s service of summons.” Id. at 109
(citations omitted) (internal quotation marks omitted); accord
Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 297 (3d Cir.
1985) (noting that “in the absence of a governing federal statute
we have found no authority for exercising personal

29
jurisdiction” over a defendant based on contacts with a state
other than that in which the federal court sits); cf. Omni
Capital, 484 U.S. at 108 (“[I]t is unclear at this time whether it
is open to us to fashion a rule authorizing service of process.”).

Accordingly, to determine if personal jurisdiction is
proper in a traditional in personam suit we begin with the
source of law authorizing the service of process whereby
plaintiffs seek to establish personal jurisdiction, which in
federal courts is Rule 4. 8 If the source of law authorizing
service of process permits the exercise of personal jurisdiction
with regard to the claims at issue, personal jurisdiction will be
proper so long as it does not violate the outer limits permissible
under the Constitution. But, if no source of law authorizing

8
Rule 82, which explicitly provides that the Civil Rules cannot
be used “to extend or limit the jurisdiction of the district
courts,” Fed. R. Civ. P. 82, does not change our analysis. We
think the mention of “jurisdiction” in Rule 82 only refers to
subject matter jurisdiction, not personal jurisdiction. See Fed.
R. Civ. P. 82 advisory committee notes to 2001 amendment
(noting that a prior version of the rule, which stated the Civil
Rules do not “extend or limit the jurisdiction of the United
States district courts,” would have been “a flat lie if
‘jurisdiction’ includes personal or quasi-in rem jurisdiction”);
Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 445 (1946)
(“Rule 4(f) [now Rule 4(e)] serves only to implement the
jurisdiction over the subject matter which Congress has
conferred, by providing a procedure by which the defendant
may be brought into court at the place where Congress has
declared that the suit may be maintained.”) (emphasis added).

30
service of process permits the exercise of personal jurisdiction
with regard to the claims at issue, we are unable to exercise
personal jurisdiction over those claims, regardless of what the
outer limits of the Constitution might theoretically permit.

2.

Rule 4(k)(1)(A) is the traditional source of personal
jurisdiction in federal courts. Under Rule 4(k)(1)(A), Fischer’s
service of a summons on FedEx established personal
jurisdiction over FedEx to the extent it is “subject to the
jurisdiction” of Pennsylvania’s courts. Fed. R. Civ. P.
4(k)(1)(A). Fischer established specific personal jurisdiction
over FedEx based on certain minimum contacts between
FedEx and Pennsylvania. Because the opt-in plaintiffs’ claims
do not arise out of or relate to those minimum contacts, the
initial service of a summons cannot be used to exercise
jurisdiction over FedEx under Rule 4(k)(1)(A) with regard to
those claims.

Rule 4(k)(1) sets out situations in which “[s]erving a
summons . . . establishes personal jurisdiction over a
defendant.” Rule 4(k)(1)(A) provides that one such situation
is when the summons is served on a defendant “who is subject
to the jurisdiction of a court of general jurisdiction in the state
where the district court is located.” State, but not federal,
courts are courts of general jurisdiction. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

For a defendant to be “subject to the jurisdiction” of a
state court, the exercise of personal jurisdiction must be
authorized by state law, such as by the state’s long-arm statute,
and must comport with the requirements of the Fourteenth

31
Amendment. See Wright & Miller, Federal Practice &
Procedure § 1069. Pennsylvania’s long-arm statute allows the
Commonwealth to exercise jurisdiction “to the fullest extent
allowed under the Constitution of the United States and may
be based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United
States.” 42 Pa. Cons. Stat. Ann. § 5322(b); see Remick v.
Manfredy, 238 F.3d 248, 255 (3d Cir. 1998). Where a federal
court relies on such a state rule authorizing jurisdiction to the
fullest extent permitted by the Constitution, Rule 4(k)(1)(A)
incorporates the constitutional limits on jurisdiction imposed
by the Fourteenth Amendment. See Daimler AG v. Bauman,
571 U.S. 117, 125 (2014) (analyzing personal jurisdiction
under the Fourteenth Amendment because “[f]ederal courts
ordinarily follow state law in determining the bounds of their
jurisdiction over persons”) (citing Fed. R. Civ. P. 4(k)(1)(A).
The reason federal courts are limited by the Fourteenth
Amendment in such cases is not because a federal court
exercising broader personal jurisdiction would violate the
Constitution, but because Rule 4(k)(1)(A) does not authorize
jurisdiction broader than what would be permissible for a state.

The Fourteenth Amendment permits two types of
personal jurisdiction: general personal jurisdiction and specific
personal jurisdiction. Goodyear Dunlop Tires Ops., S.A. v.
Brown, 564 U.S. 915, 919 (2011). As the names suggest,
general personal jurisdiction is broader than specific personal
jurisdiction, reaching all potential claims against the defendant
regardless of their connection to the state. By contrast, specific
personal jurisdiction only reaches claims that arise out of or
relate to the minimum contacts a plaintiff can demonstrate
between the defendant and the forum state. See Bristol-Myers,
137 S. Ct. at 1781 (“What is needed . . . is a connection

32
between the forum and the specific claims at issue.”).

Here, the Appellants cannot establish general personal
jurisdiction over FedEx under Rule 4(k)(1)(A). For a
corporation, general jurisdiction is only proper in states where
the corporation is fairly regarded as “at home,” which
generally is restricted to the corporation’s state of
incorporation or the state of its principal place of business.
Daimler, 571 U.S. at 122; Goodyear Dunlop Tires Ops., S.A.,
564 U.S. at 924. Accordingly, FedEx, which is incorporated
in Delaware and has a principal place of business in Tennessee,
is not “at home” in Pennsylvania.

And Appellants fare no better with specific personal
jurisdiction. Fischer was able to establish personal jurisdiction
over FedEx with respect to her claims in Pennsylvania because
FedEx operates locations in Pennsylvania (i.e., there were
sufficient minimum contacts with the state), and her claims
arose out of her work for FedEx in the Pennsylvania locations
(i.e., the claims arose out of or related to the minimum
contacts). By contrast, the opt-in plaintiffs lived in New York
and Maryland. They were employed by FedEx in New York
and Maryland. And they do not contend they had any
connection to, let alone injury arising from, FedEx’s activities
in Pennsylvania. Their claims entirely relate to their treatment
by FedEx in their respective home states.

Appellants claim this application of Rule 4(k)(1)(A)
would require “all opt-in plaintiffs who join the suit via written
consent [to] comply with the service-of-process requirements
set forth in Rule 4.” Appellants’ Br. 37. But our holding in
this appeal does not require independent service any time a
plaintiff would seek to join a suit, or, relatedly, any time a

33
plaintiff seeks to amend or add claims herself. A defendant
who is “subject to the jurisdiction” of a state’s courts, pursuant
to Rule 4(k)(1)(A), would be so not only for the verbatim
claims alleged in the initially filed complaint but also for other
potential claims that might be asserted. In the case of general
personal jurisdiction, once the court asserts personal
jurisdiction over a defendant through service of process under
Rule 4(k)(1)(A), the defendant is subject to the jurisdiction of
the court with regard to any and all claims that might be
brought. See Goodyear Dunlop Tires Ops., S.A., 564 U.S. at
919 (“A court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and
all claims against them when their affiliations with the State
are so ‘continuous and systematic’ as to render them essentially
at home in the forum State.” (quoting International Shoe v.
Washington, 326 U.S. 310, 317 (1945))). Accordingly, if an
additional plaintiff seeks to join the suit, or if the original
plaintiff seeks to add or amend claims, there is no need to serve
the defendant again because the defendant is already subject to
the court’s jurisdiction. The same principle is true for specific
personal jurisdiction, though the family of claims that might be
asserted is narrower: A defendant is subject to the jurisdiction
of the state’s courts only with regard to those claims that arise
out of or relate to the defendant’s minimum contacts with the
state. See Goodyear Dunlop Tires Ops., S.A., 564 U.S. at 919
(“In contrast to general, all-purpose jurisdiction, specific
jurisdiction is confined to adjudication of issues deriving from,
or connected with, the very controversy that establishes
jurisdiction.”) (internal quotation marks and citation omitted).
For this reason, if an additional plaintiff seeks to join the suit
bringing her own claims, or if the original plaintiff seeks to add
or amend claims, there is no need to serve the defendant again
as long as the new claims arise out of or relate to the

34
defendant’s minimum contacts with the forum state, because
the defendant would already be subject to the jurisdiction of
the court with respect to those claims.

Appellants make two arguments in attempting to tie the
claims of the opt-in plaintiffs to FedEx’s contacts with
Pennsylvania. Both are precluded by Bristol-Meyers. First,
Appellants contend that all plaintiffs “suffered the same harm
stemming from the same unlawful policy.” Appellants’ Br. at
56. The Supreme Court in Bristol-Myers considered an
analogous argument and concluded that the mere fact that other
plaintiffs allegedly suffered the same injury from the same
source “does not allow the [forum] to assert specific
jurisdiction over the nonresidents’ claims.” 137 S. Ct. at 1781.
What is required is a showing that the out-of-state plaintiffs’
injuries have a connection to the forum state, not just that the
injuries are similar to those of in-state plaintiffs. Second,
Appellants assert that by creating the FLSA collective action
device, Congress has defined a legal relationship between out-
of-state opt-in plaintiffs and in-state plaintiffs, such that the
out-of-state plaintiffs’ claims, once joined in the suit, are
related to the employer’s activities in the forum state. But
merely being named a party in a suit cannot alone constitute a
legal relationship sufficient to establish personal jurisdiction.
Indeed, Bristol-Myers forecloses this argument: The legal
relationship between the plaintiffs defined by the California
mass action device at issue in the case made no difference for
the Court’s personal jurisdiction analysis.

For these reasons, we believe that in an FLSA collective
action where personal jurisdiction is asserted under Rule
4(k)(1)(A), each opt-in plaintiff must demonstrate that the
court has personal jurisdiction over the defendant with regard

35
to her claims. The opt-in plaintiffs have failed to do so here.
The District Court correctly found that service of process did
not establish personal jurisdiction over the defendant under
Rule 4(k)(1)(A) with respect to the claims of the opt-in
plaintiffs. As the Sixth Circuit observed in Canaday regarding
another FLSA collective action “[t]aken together, the claims
[of out-of-state plaintiffs] look just like the claims in Bristol-
Myers.” 9 F.4th at 397.

3.

Separate from personal jurisdiction tied to the initial
service of process under Rule 4(k)(1)(A), opt-in plaintiffs
might also be able to independently establish jurisdiction over
the defendant with regard to their claims if a federal law
directly authorized it. See Fed. R. Civ. P. 4(k)(1)(C) (providing
that serving a summons establishes personal jurisdiction “when
authorized by a federal statute”). But to use Rule 4(k)(1)(C),
opt-in plaintiffs would need to identify a federal statute that
authorizes the exercise of personal jurisdiction. And the
federal statutory provision at issue here, § 216(b) of the FLSA,
does not do so.

Congress can provide federal courts a statutory
mechanism through which to establish personal jurisdiction, so
long as that exercise does not exceed the bounds of the Fifth
Amendment. Personal jurisdiction established pursuant to
Rule 4(k)(1)(C) traditionally involves a federal statute
authorizing nationwide service of process and is
constitutionally limited only by the Fifth Amendment (i.e., a
nationwide minimum contacts analysis), not the Fourteenth
Amendment. See Laurel Gardens, LLC v. Mckenna, 948 F.3d
105, 122 (3d Cir. 2020) (“Where Congress has statutorily

36
authorized nationwide service of process, such service
establishes personal jurisdiction, provided that the federal
court’s exercise of jurisdiction comports with Fifth
Amendment due process.”) (quoting Cory v. Aztec Steel
Building, Inc., 468 F.3d 1226, 1229 (10th Cir. 2006)).
Congress can also provide different jurisdictional rules for
different parties in the same suit. For example, under the
Racketeer Influenced and Corrupt Organizations statute, so
long as jurisdiction is proper over at least one defendant
according to the traditional, state-bound minimum contacts
test, other parties may be served nationwide. See Laurel
Gardens, 948 F.3d at 120 (explaining the implications for
personal jurisdiction of 18 U.S.C. § 1965(a) and (b)).

But the drafters of the FLSA did not provide any such
mechanism to establish personal jurisdiction in § 216(b).
There is no mention in § 216(b) of service of process. And the
only explicit mention of jurisdiction in this provision is the
requirement that the court in which an action is brought be “of
competent jurisdiction.”

The “similarly situated” language in § 216 cannot be
read as a grant of personal jurisdiction with regard to opt-in
plaintiffs’ claims. This requirement directly follows the
instruction that the court must be “of competent jurisdiction,”
indicating “similarly situated” was not meant to provide an
independent basis for jurisdiction. Moreover, the “similarly
situated” requirement governs all FLSA collective actions
without distinguishing between those in state versus federal
court.

For these reasons, we see no plausible way to read
§ 216(b) as independently granting jurisdiction for federal

37
courts to exercise personal jurisdiction over a defendant with
regard to opt-in plaintiffs’ claims. Accordingly, Rule
4(k)(1)(C) cannot be used directly by opt-in plaintiffs to
independently establish personal jurisdiction because doing so
has not been authorized by federal law.

4.

Since Rule 4(k) does not authorize the exercise of
personal jurisdiction over the out-of-state plaintiffs’ claims at
issue here, Appellants suggest that “[t]he text of Rules 4 and 5
impose no . . . obligation” for opt-in plaintiffs to serve a
summons according to Rule 4. Appellants’ Br. 41. Appellants
contend that opt-in plaintiffs in FLSA actions have not
traditionally been required to serve a summons under Rule 4,
instead serving “written notice” under Rule 5. 9 Fed. R. Civ. P.
5(a)(1)(E). Even if opt-in plaintiffs were required to serve a
new complaint stating their claims, that complaint might be
considered “a pleading filed after the original complaint,”
which could also be served under Rule 5. Fed. R. Civ. P.
5(a)(1)(B).

9
Rule 5 permits certain papers to be served on an opposing
party with less formality than what is required under Rule 4.
Rule 5 covers a wide range of papers that might be served on a
defendant once the defendant has been given notice of the
pendency of a suit through service under Rule 4. Rule 5
provides, for example, “[i]f a party is represented by an
attorney, service under this rule must be made on the attorney,”
which would, for example, streamline the service of routine
papers in protracted litigation. Fed. R. Civ. P. 5(b)(1).

38
 True, unlike Rule 4(k)(1)(A), Rule 5 does not tie
personal jurisdiction to a state’s service of process and personal
jurisdiction rules. And Rule 5 does not specifically exclude
FLSA opt-in consent forms from the provisions of the rule. But
we think there is an explanation: Rule 5, unlike Rule 4(k), does
not authorize the exercise of personal jurisdiction. The fact
that Rule 5 is silent on establishing personal jurisdiction—
either to authorize or limit the exercise of jurisdiction—merely
indicates that Rule 5 does not provide an independent
mechanism to establish jurisdiction where Rule 4(k) would not
be satisfied. Instead, Rule 5 is better seen as an alternative to
Rule 4 to providing notice to an opposing party in
circumstances where the court already has personal jurisdiction
over the defendant with regard to the plaintiff’s claims.
Indeed, we think Omni Capital forecloses reading Rule
5 as implicitly authorizing the service of a written notice as a
substitute mechanism to establish personal jurisdiction. While
Omni Capital only directly discussed personal jurisdiction tied
to service of a summons, we think the analysis would also
apply to an effort to establish personal jurisdiction without
service of a summons. Omni Capital was written against the
backdrop of a long-standing consensus that service of process
was more than a mere procedural formality and was instead an
essential procedural requirement in all cases for establishing
personal jurisdiction. Omni Capital, 484 U.S. at 104. In this
context, a lack of authorization to serve a summons would have
been understood as synonymous with a lack of authorization to
exercise personal jurisdiction.

Consistent with our reading of Rules 4 and 5, some
commentators have recognized that it would be unfair to permit
Rule 5 to serve as an independent authorization of personal
jurisdiction where the personal jurisdiction established under

39
Rule 4(k) is not broad enough to reach the newly added claims.
See Wright & Miller, Federal Practice & Procedure, § 1146
(“Whenever an additional claim asserted in an amended or
supplemental pleading is unrelated to the claim originally
asserted against him, fairness may require the court to order
that jurisdiction be reasserted over the party himself rather than
rely on the service of the amended pleading on his attorney
under Rule 5(b).”). For purposes of our decision in this case,
we need not resolve how Rule 5 would operate in every case.
We need only conclude that Rule 5 cannot independently be
used to allow additional plaintiffs to join a suit where their
claims do not arise out of the minimum contacts that served the
basis for the original exercise of jurisdiction under Rule
4(k)(1)(A).
Ultimately, we interpret the practice of allowing service
of notice under Rule 5 for opt-in plaintiffs in FLSA actions not
as an endorsement that Rule 5 authorizes the exercise of
personal jurisdiction, but rather as evidence that, before
Bristol-Myers, courts had not squarely addressed whether
personal jurisdiction would be required with regard to opt-in
plaintiffs’ claims. While this evidence of historical practice
has some persuasive value, it is not dispositive of the issues in
this case, since it is not based on any rule or statute that
authorizes the exercise of jurisdiction.10

10
Appellants cite Rule 23 class actions as an example where
absent class members may be represented in a suit without
individually serving process under Rule 4. As explained
above, supra Section II.B, the personal jurisdiction analysis for
Rule 23 class actions diverges from the analysis for FLSA
collective actions, because, in a class action, personal
jurisdiction is not required over the defendant with respect to

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 ***

For these reasons, like the out-of-state plaintiffs in

absent class members’ claims. Personal jurisdiction is not
different for class actions because of any requirements in Rule
5, but rather because of the careful and detailed protections set
out in Rule 23.

Appellants point to other joinder rules that they suggest do not
require service of a summons under Rule 4 to establish
personal jurisdiction with respect to joined parties or claims.
Appellants’ Br. 42 (Rule 24); see also Waters, 23 F.4th at 96
(Rule 20). We disagree that joinder rules are categorically
exempt from the general requirement for establishing personal
jurisdiction under Rule 4(k) with respect to all plaintiffs’
claims. Indeed, two joinder rules—Rule 14 (third-party
practice) and Rule 19 (required joinder of parties)—have an
explicit service of process rule governing personal jurisdiction
for joined parties. See Fed. R. Civ. P. 4(k)(1)(B). We decline
to read other joinder rules as implicitly authorizing the exercise
of personal jurisdiction when those rules are silent as to service
of process. Instead, we think joinder rules are still governed
by the background service of process rules in Rule 4(k)(1)(A)
and (1)(B). Specifically, as explained in this opinion, § 216(b)
cannot be read to authorize personal jurisdiction beyond the
background rules that would otherwise govern in federal court.
Labeling § 216(b) a joinder rule does not change this analysis.

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Bristol-Myers, the opt-in plaintiffs in FLSA collective actions
must satisfy the personal jurisdiction requirements of the
Fourteenth Amendment to join the suit. FLSA collective
actions are in personam suits and, unlike Rule 23 class actions,
are not exempted from traditional personal jurisdiction
requirements.

These traditional personal jurisdiction requirements
begin with a source of law authorizing the exercise of personal
jurisdiction. Where no federal law authorizes the exercise of
personal jurisdiction, plaintiffs must satisfy the requirements
of Rule 4(k)(1)(A), which can be used to establish personal
jurisdiction over a defendant who is subject to the jurisdiction
of a state’s courts. Because state courts are limited by the
Fourteenth Amendment, so too are federal courts relying on
Rule 4(k)(1)(A).

The out-of-state opt-in plaintiffs here have not
demonstrated their claims arise out of or relate to FedEx’s
minimum contacts with Pennsylvania as is required by the
Fourteenth Amendment. Accordingly, plaintiffs have not
established personal jurisdiction over FedEx with respect to
their claims and cannot join the suit.

III.

Appellants caution that affirming the trial court’s
decision would, at best, cause the proliferation of duplicative
FLSA actions against the same employer or, at worst, prevent
certain meritorious suits from being brought in the first place.

But, as an initial matter, potential plaintiffs retain the
ability to bring nationwide collective actions in a court that can

42
exercise general personal jurisdiction over their employer. See
Canaday, 9 F.4th at 400–01. Appellants express concerns
about their practical ability to do so. But these same concerns
were also raised by Justice Sotomayor in her dissent in Bristol-
Myers. 137 S. Ct. at 1789 (Sotomayor, J., dissenting). The
same argument should not prevail here when it did not do so
before the Supreme Court.

Moreover, the Multidistrict Litigation statute also may
present a potential avenue for the practical coordination of
certain nationwide FLSA suits. The Judicial Panel on
Multidistrict Litigation has centralized similar FLSA cases
when there is duplicative litigation involving common
questions of fact across the country. See, e.g., In re Lowe’s
Cos., Inc. Fair Labor Standards Act & Wage & Hour Litig.,
481 F. Supp. 3d 1332 (U.S.J.P.M.L. 2020); In re Amazon.com,
Inc., Fulfillment Ctr. Fair Labor Standards Act & Wage &
Hour Litig., 999 F. Supp. 2d 1375 (U.S.J.P.M.L. 2014).
Indeed, there is evidence to suggest the drafters of the MDL
statute envisioned it as a vehicle for these sorts of claims. See
Andrew D. Bradt, “A Radical Proposal”: The Multidistrict
Litigation Act of 1968, 165 U. Pa. L. Rev. 831, 867–69 (2017)
(explaining the origins of the MDL statute). We agree with the
Sixth Circuit that “[m]ultidistrict litigation implicates a
different statute, a different history, and a different body of
caselaw [than the FLSA].” Canaday, 9 F. 4th at 403–04
(internal citations omitted).

IV.

For the foregoing reasons, we will affirm the judgment
of the District Court.

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