Victor Zavala v. Wal Mart Stores Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-2381
_____________

VICTOR ZAVALA; EUNICE GOMEZ;
MAXIMILIANO MENDEZ;
CARLOS ALBERTO TELLO; ANTONIO FLORES;
OCTAVIO DENISIO;
MARTIN MACAK; PAVEL KUNC;
HANA PFAUSEROVA;
JIRI PFAUSER; TERESA JAROS; PETR ZEDNEK;
DANIEL ANTONIO CRUZ; LUIS GUTIERREZ;
FILIPE CONDADO;
ARTURO ZAVALA; HIPOLITO PALACINOS,
Appellants

v.

WAL MART STORES INC.
_____________

On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-03-cv-05309
District Judge: Honorable Garrett E. Brown, Jr.
 Argued March 26, 2012
Before: FUENTES, SMITH, and JORDAN,
Circuit Judges

(Filed: August 9, 2012)

Gilberto M. Garcia
Garcia & Kricko
Court Plaza South
West Wing, 3rd Floor
Hackensack, NJ 07601

James L. Linsey (Argued)
Suite 615
11 Broadway
New York, NY 10004

Michaelene Loughlin
Loughlin & Latimer
179 Cedar Lane
Suite B
Teaneck, NJ 07666
Counsel for Appellants

Thomas H. Golden
Willkie, Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
2
David P. Murray (Argued)
Willkie, Farr & Gallagher
1875 K Street, N.W.
Washington, DC 20006
Counsel for Appellee

________________

OPINION
________________

SMITH, Circuit Judge.

I. Introduction
This suit was brought in the U.S. District Court for
the District of New Jersey by Wal-Mart cleaning crew
members who are seeking compensation for unpaid
overtime and certification of a collective action under the
Fair Labor Standards Act (FLSA), civil damages under
RICO, and damages for false imprisonment. The
workers – illegal immigrants who took jobs with
contractors and subcontractors Wal-Mart engaged to
clean its stores – allege: (1) Wal-Mart had hiring and
firing authority over them and closely directed their
actions such that Wal-Mart was their employer under the
FLSA; (2) Wal-Mart took part in a RICO enterprise with
predicate acts of transporting illegal immigrants,

3
harboring illegal immigrants, encouraging illegal
immigration, conspiracy to commit money laundering,
and involuntary servitude; (3) Wal-Mart‘s practice of
locking some stores at night and on weekends – without
always having a manager available with a key –
constituted false imprisonment.

Over the course of eight years and a minimum of
four opinions, the District Court rejected final
certification of an FLSA class, rejected the RICO claim
on several grounds, and rejected the false imprisonment
claim on the merits. We will affirm.

II. Facts
This case has been pending for over eight years
and ultimately comes to us from a grant of summary
judgment. Not surprisingly, it carries with it a substantial
record.1 To help organize the relevant facts in a useful

1
This case provides a useful example of why the Federal
Rules of Appellate Procedure provide for a joint
appendix and give each party the authority to designate
any relevant documents for inclusion. See Fed. R. App.
P. 30(b)(1). Rather than cooperate to produce a joint
appendix, the parties here have provided one primary
appendix and two sets of supplemental appendices (one
from each side). This unnecessarily complicates the
record on appeal, and we strongly discourage parties
from pursuing such a course in the future.
4
manner, we have divided them into groups corresponding
to Plaintiffs‘ claims. We focus only on the facts relevant
to our bases for deciding the appeal.

A. RICO
Plaintiffs allege that Wal-Mart paid its contractors
with full knowledge that the contractors were hiring
illegal immigrants to work in Wal-Mart‘s stores.
Plaintiffs support this contention with further allegations
that two senior Wal-Mart executives made comments that
could be understood as acknowledging that the
contractors had hired and would continue to hire illegal
immigrants. In addition, Plaintiffs allege that Wal-Mart
managers and executives were regularly informed that
their contractors were employing illegal immigrants.
In support of their RICO transporting predicate,
Plaintiffs allege that contractors would sometimes pick
workers up from the airport and transport them across
state lines for work. They also allege that when a work
crew was arrested by federal authorities, fired / ejected
by the store manager, or otherwise unavailable to work,
another work crew would be brought in within hours,
often from out of state. In support of their RICO
harboring predicate, Plaintiffs allege at least one instance
in which work crews were permitted to sleep in the store
and keep their personal belongings there with the
knowledge of store management. In support of their
RICO encouraging predicate, Plaintiffs allege that
5
contractors advertised for Wal-Mart cleaning jobs in the
Czech Republic and elsewhere. In support of their RICO
involuntary servitude predicate, Plaintiffs allege that they
were coerced into working by threats to report their
immigration status to authorities. Plaintiffs also use the
facts supporting their false imprisonment claims to
support their involuntary servitude claims. Those facts
will be discussed below.
The record indicates that Plaintiffs did not work
exclusively for Wal-Mart, nor did Wal-Mart hire its
cleaners exclusively from the pool of illegal immigrants
it allegedly transported, harbored, and encouraged. For
example, documents and deposition testimony provided
by Plaintiffs demonstrate that they held a variety of jobs,
including work at a Marriott hotel, work at a movie
theater, and work remodeling homes. And the record
indicates that Wal-Mart often used store associates
(regular, non-contract employees) to clean its stores.

B. Certification of the FLSA Collective Action
The District Court‘s decision to decertify the
collective action followed substantial discovery into the
potential class plaintiffs, their employment history, their
work hours, their working conditions, and other relevant
factors. Magistrate Judge Arleo, to whom some of the
proceedings below were assigned, required each opt-in
plaintiff to file a questionnaire in a specific format
detailing his / her personal information, working
6
conditions, compensation, etc. Over one hundred
individuals filed this questionnaire before the deadline.
The questionnaires demonstrate that the opt-in plaintiffs
worked at dozens of different stores, for numerous
different contractors, with various pay amounts and
methods. Though most worked every evening from
roughly 11pm – 7am, their hours sometimes varied.

In an effort to demonstrate that the proposed class
is similarly situated, Plaintiffs proffer a Wal-Mart
Maintenance Manual (and a translation of that manual
into Polish), which appears to establish uniform
standards and procedures for cleaning Wal-Mart stores.
The manual is comprehensive. Among other things, it
specifies the products and methods to be used, as well as
the procedure for obtaining new supplies or equipment.
In a similar vein, Plaintiffs provide declarations and
deposition testimony establishing that Wal-Mart provided
the cleaning materials used by the crew, though at least
one Wal-Mart store manager asserts that contractors
provided their own equipment.
In an effort to demonstrate that Wal-Mart
exercised control over the proposed class and that this
control was common across Wal-Mart stores, Plaintiffs
provide declarations and deposition testimony supporting
their contention that Wal-Mart managers directed them
where and how to clean and often scrutinized their work,
requiring them to clean an area more thoroughly before

7
leaving. Wal-Mart provides declarations from store
managers insisting that their interactions with crews were
limited to general instructions. They insist that they did
not supervise the cleaners and that issues were usually
raised with the crew chief or the contracting company.
Plaintiffs concede in their own deposition testimony that
cleaners did not receive training from Wal-Mart staff.
Generally, cleaners were trained by other members of the
work crew or learned simply by observing.
Plaintiffs also claim that Wal-Mart asserted and
exercised the right to hire and fire the cleaning crews.
Plaintiffs point first to a form contract distributed to Wal-
Mart stores to be used in hiring cleaning crews. The
letter accompanying the contract and the contract itself
specify that the Wal-Mart store manager shall have final
authority to approve or disapprove members of the
cleaning crew. In addition, Plaintiffs provide
declarations and deposition testimony establishing that
Wal-Mart management would occasionally fire
individual workers or whole work crews. Multiple Wal-
Mart managers provide declarations asserting that they
did not have the authority to hire and fire crew members.

C. False Imprisonment
In support of their false imprisonment claims,
Plaintiffs allege that they often worked at stores that were
shut down at night and on weekends, during which time
the exits were locked. At these stores, they needed to
8
seek out managers to open the doors. Managers were
often unavailable and were sometimes not even in the
store. However, Plaintiffs‘ deposition testimony shows
that they could and sometimes did leave for breaks.
Testimony also shows that they occasionally left for
work-related tasks like retrieving propane (necessary for
the buffing equipment).

Plaintiffs cite two specific instances in which they
wanted to leave but were unable to do so: (1) Plaintiff
Petr Zednik had a toothache and wanted to leave early,
but his manager, Steve, refused to permit him to leave;
(2) Plaintiff Teresa Jaros had abdominal pain and
bleeding and wanted to leave, but no managers were in
the store. In Zednik‘s case, he further asserts that ―Steve
is a muscular man (with blond hair), and I knew that he
would assault me if I tried to escape through any door
that would let me out[.]‖

In response, Wal-Mart provides two declarations
from store managers. The declarations attest that
managers were available to unlock doors ―when
necessary‖; that the stores had properly-marked
emergency exits; and that – to the managers‘ knowledge
– the emergency exits were neither concealed nor
obstructed at any time and were always in proper
working order.
In reply to these declarations, Plaintiffs assert that
managers were often unavailable. They also assert that
9
they did not know how to leave. Plaintiffs claim that
they were never informed of the location of emergency
exits. Plaintiffs also speculate that Wal-Mart had motive
to conceal these exits.

III. Procedural Timeline
The initial complaint in this case was filed on
November 10, 2003, and the case was assigned to then-
District Judge Joseph A. Greenaway, Jr. The original
complaint was followed by a First Amended Class
Action Complaint on February 2, 2004. This complaint
sought damages for: (1) RICO (with predicate acts of
transporting, harboring, encouraging, and hiring illegal
immigrants, conspiracy / aiding and abetting
transporting, harboring, and encouraging illegal
immigrants, committing immigration offenses for
financial gain, involuntary servitude, money laundering,
mail and wire fraud, and conspiracy to launder money);
(2) RICO conspiracy; (3) conspiracy to violate civil
rights under 42 U.S.C. § 1985; and (4) violations of the
Fair Labor Standards Act. On December 29, 2004, the
District Court conditionally certified the FLSA collective
action.

On October 7, 2005, ruling on a motion to dismiss,
the District Court concluded that: (1) Plaintiffs failed to
state a claim for any of their alleged RICO predicates; (2)
Plaintiffs were not members of a class protected by 42
U.S.C. § 1985; and (3) Plaintiffs‘ FLSA and false
10
imprisonment claims could proceed. In response,
Plaintiffs filed a Second Amended Complaint on
November 21, 2005. This complaint abandoned
Plaintiffs‘ civil rights claim under 42 U.S.C. § 1985, the
RICO predicate of hiring illegal immigrants, the RICO
predicate of money laundering (but not conspiracy to
launder money), and the RICO predicate of mail and wire
fraud.
On August 28, 2006, deciding a partial motion to
dismiss the Second Amended Complaint, the District
Court dismissed Plaintiffs‘ RICO and RICO conspiracy
claims. The District Court held: (1) Plaintiffs failed to
satisfy the RICO requirement of showing ―distinctness‖
between the ―person‖ and the ―RICO enterprise‖; (2)
Plaintiffs failed to state a claim for their RICO predicate
of involuntary servitude; and (3) Plaintiffs failed to
establish a causal nexus between their RICO predicates
of immigration violations and money laundering and
their alleged injury.
On March 10, 2010, this case was reassigned to
then-Chief District Judge Garrett E. Brown, Jr. On June
25, 2010, the District Court granted Wal-Mart‘s motion
to decertify Plaintiffs‘ provisionally-certified FLSA
collective action. The District Court concluded that the
breadth of factual circumstances underlying each
individual‘s claim did not permit trial of the case as a
collective action. On December 1, 2010, the District

11
Court denied Plaintiffs‘ motion for summary judgment
on their FLSA and false imprisonment claims. The
District Court concluded that the motion was
procedurally improper because it was filed well beyond
the deadline provided by the federal rules. The District
Court also concluded that the motion failed on the merits
because material facts remained in contention on both
claims.
On April 7, 2011, the District Court granted Wal-
Mart‘s motion for partial summary judgment on the false
imprisonment claim. It first concluded that Wal-Mart
had shown adequate grounds for seeking summary
judgment beyond the time limit provided by the federal
rules. It then held that Plaintiffs‘ false imprisonment
claims failed on the merits because Wal-Mart had
adequately demonstrated the availability of emergency
exits and Plaintiffs failed to rebut this evidence.
Following that decision, Wal-Mart resolved the
individual FLSA claims of named Plaintiffs through a
series of settlements and an offer of judgment.
This appeal followed. Plaintiffs challenge the
District Court‘s dismissal of their RICO claims, its
decertification of the conditionally-certified FLSA
action, and its grant of summary judgment for Wal-Mart
on Plaintiffs‘ false imprisonment claims. The District
Court had jurisdiction under 28 U.S.C. § 1331, 29 U.S.C.

12
§ 216(b), 18 U.S.C. § 1964(c), and 28 U.S.C. § 1367(a).
We have appellate jurisdiction under 28 U.S.C. § 1291.

IV. Analysis

A. Certification of the FLSA Collective Action
The District Court conditionally certified this as a
collective action under the FLSA. Following discovery,
a ―motion for decertification‖ was brought, and the
District Court ―decertified‖2 the class. As the District
Court explained, two different standards apply for
certification under the FLSA, one for conditional
certification, and another for final certification. While
we have made clear that the standard for final
certification is more stringent than the standard for
conditional certification, the exact test to be applied has
been left specifically unresolved by our Court. We
decide today that to certify an FLSA collective action for
trial, the District Court – after considering the claims and
defenses of the parties and all the relevant evidence –
must make a finding of fact that the members of the
collective action are ―similarly situated.‖ The burden of
demonstrating that members of the collective action are
similarly situated is to be borne by the plaintiffs, who
must show by a preponderance of the evidence that they
are similarly situated.

2
This terminology is misleading, as we will demonstrate.
13
 1. Standard of Review
We must first address the appropriate standard of
review. The standard of review for FLSA decertification
has not been previously addressed by our Court. Other
circuits have applied an abuse of discretion standard to
the ultimate decision on whether to certify the collective
action. See, e.g., Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1260 (11th Cir. 2008) (―[W]e review a
district court‘s § 216(b) certification for abuse of
discretion.‖); Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1105 (10th Cir. 2001) (same in ADEA
context).3

We agree that an abuse of discretion standard is
appropriate. But we note that this is not the type of abuse
of discretion review afforded matters that are ―committed
to the discretion of the trial court[.]‖ United States v.
Criden, 648 F.2d 814, 817 (3d Cir. 1981). In those
situations, we will reverse only if the district court‘s
decision is ―arbitrary, fanciful or unreasonable, which is
another way of saying that discretion is abused only
where no reasonable man would take the view adopted
by the local court.‖ Lindy Bros. Builders, Inc. v. Am.
3
Thiessen is an ADEA case. Throughout this section, we
will use FLSA and ADEA cases interchangeably, as the
ADEA imports by reference the collective action
provision and ―similarly situated‖ standard of the FLSA.
See 29 U.S.C. § 626(b).
14
Radiator, Etc., 540 F.2d 102, 115 (3d Cir. 1976) (en
banc) (quoting Delno v. Market St. Ry. Co., 124 F.2d
965, 967 (9th Cir. 1942)). Here, however, we will find
an abuse of discretion ―if the district court‘s decision
‗rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to
fact.‘‖ In re Hydrogen Peroxide Antitrust Litig., 552
F.3d 305, 312 (3d Cir. 2008) (quoting Newton v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165
(3d Cir. 2001)).

This type of review is appropriate because the final
certification of an FLSA collective action is composed of
two underlying components: (1) determining the legal
standard to be applied in concluding whether proposed
plaintiffs are similarly situated; and (2) applying the legal
standard to conclude whether the proposed plaintiffs
actually are similarly situated. The former has been
recognized as a legal question, subject to de novo review.
See Thiessen, 267 F.3d at 1105 (―The initial question,
which we address de novo, is whether it was proper for
the district court to adopt the ad hoc approach in
determining whether plaintiffs were ‗similarly situated‘
for purposes of § 216(b).‖). The latter has been
recognized as a factual question, subject to review for
clear error. See Morgan, 551 F.3d 1260 (―A court‘s
determination that the evidence shows a particular group
of opt-in plaintiffs are similarly situated is a finding of
fact. . . . We will reverse the district court‘s fact-finding
15
that plaintiffs are similarly situated only if it is clearly
erroneous.‖); Mooney v. Aramco Servs., 54 F.3d 1207,
1214 (5th Cir. 1995) (―At [the second] stage, the court
. . . makes a factual determination on the similarly
situated question.‖), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

Once it has been determined that the plaintiffs are
similarly situated (a factual question reviewed for clear
error), there is no further work to be done. We do not
believe that the statute gives the district court discretion
to deny certification after it has determined that plaintiffs
are similarly situated. Accordingly, no exercise of
discretion actually takes place. Nonetheless, such multi-
part reviews of District Court decisions have been
routinely labeled with the ―abuse of discretion‖ standard
under our precedent and the precedent of our sister
circuits, though we have made clear that each part of the
review should proceed under the appropriate standard for
that component. See, e.g., Gates v. Rohm & Haas Co.,
655 F.3d 255, 262 (3d Cir. 2011); Morgan v. Perry, 142
F.3d 670, 682-83 (3d Cir. 1998).
Because we are examining the underlying legal
rule for certification, we exercise plenary review over the
District Court‘s decision to not finally certify the
collective action here. Going forward, however, because
district courts will be applying the standard we announce
today, we anticipate that certification decisions will

16
typically be subject to review under the clear-error prong
of this type of abuse of discretion review, as only fact-
finding should be at issue.

2. Standard for Certification of an
FLSA Collective Action
In ―decertifying‖ this collective action, the District
Court explained that two different standards for
certification applied. It noted that a ―fairly lenient
standard‖ applied for conditional certification, and noted
that some courts ―require nothing more than substantial
allegations that the putative class members were together
the victims of a single decision, policy, or plan[.]‖
Zavala v. Wal-Mart Stores, Inc., No. 03-5309, 2010 WL
2652510, at *2 (D.N.J. June 25, 2010) (quoting Morisky
v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 495
(D.N.J. 2000)). The District Court then held that a
―stricter standard‖ applied on final certification, in which
the court actually determines whether the plaintiffs are
similarly situated. And it held that plaintiffs bear the
burden of demonstrating that they are similarly situated.
Without precisely quantifying the burden borne by the
plaintiffs, the District Court then concluded that, under
the disparate factual circumstances applicable here,
Plaintiffs were not similarly situated, and
―decertification‖ was appropriate.
In Symczyk v. Genesis Healthcare Corp., 656 F.3d
189 (3d Cir. 2011), we noted that this two-tier approach,
17
while ―nowhere mandated, . . . appears to have garnered
wide acceptance.‖ Id. at 193 n.5. We implicitly
embraced this two-step approach, and we affirm its use
here. But we also explained that the ―conditional
certification‖ is not really a certification. It is actually
―‗the district court‘s exercise of [its] discretionary power,
upheld in Hoffmann-La Roche, to facilitate the sending of
notice to potential class members,‘ and ‗is neither
necessary nor sufficient for the existence of a
representative action under [the] FLSA.‘‖ Id. at 194
(quoting Myers v. Hertz Corp., 624 F.3d 537, 555 n.10
(2d Cir. 2010)). In articulating the standard to be applied
at this initial stage,4 we left open the question of the

4
We adopted the ―modest factual showing‖ standard,
under which ―a plaintiff must produce some evidence,
‗beyond pure speculation,‘ of a factual nexus between the
manner in which the employer‘s alleged policy affected
her and the manner in which it affected other
employees.‖ Symczyk, 656 F.3d at 193 (citing Smith v.
Sovereign Bancorp, Inc., No. 03-2420, 2003 WL
22701017, at *3 (E.D. Pa. Nov. 13, 2003)). The Second
Circuit has described this initial step as ―determin[ing]
whether ‗similarly situated‘ plaintiffs do in fact exist,‖
while at the second stage, the District Court determines
―whether the plaintiffs who have opted in are in fact
‗similarly situated‘ to the named plaintiffs.‖ Myers, 624
F.3d at 555.

18
standard to be applied on final certification. Id. at 193
n.6 (―Because only the notice stage is implicated in this
appeal, we need not directly address the level of proof
required to satisfy the similarly situated requirement at
the post-discovery stage.‖).
It is clear from the statutory text of the FLSA that
the standard to be applied on final certification is whether
the proposed collective plaintiffs are ―similarly
situated.‖5 Courts have adopted three different
approaches for determining whether this is the case. See
Thiessen, 267 F.3d at 1102-03. The first is the ad-hoc
approach, which considers all the relevant factors and
makes a factual determination on a case-by-case basis.
To our knowledge, this is the only approach approved by
other Courts of Appeals. See, e.g., Morgan, 551 F.3d at
1259-62 (11th Cir. 2008); Thiessen, 267 F.3d at 1105
(10th Cir. 2001). The other two approaches are derived
from Rule 23 and have only been adopted by district
courts. See Thiessen, 267 F.3d at 1103. We have already
repeatedly approved the ad-hoc approach, and we do so
again today. See, e.g., Symczyk, 656 F.3d at 193 n.6;
Ruehl v. Viacom, Inc., 500 F.3d 375, 388 n.17 (3d Cir.
2007); Lockhard v. Westinghouse Credit Corp., 879 F.2d

5
29 U.S.C. § 216(b) (―An action to recover the liability
prescribed [by this statute] . . . may be maintained . . . by
any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.‖).
19
43, 51 (3d Cir. 1989), overruled on other grounds by
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).

Our Court and the other Courts of Appeals to
address the issue have identified many factors to be
considered as part of the ad-hoc analysis. Relevant
factors include (but are not limited to): whether the
plaintiffs are employed in the same corporate department,
division, and location; whether they advance similar
claims; whether they seek substantially the same form of
relief; and whether they have similar salaries and
circumstances of employment. Plaintiffs may also be
found dissimilar based on the existence of individualized
defenses. See Ruehl, 500 F.3d at 288 n.17. This list is
not exhaustive, and many relevant factors have been
identified. See 45C Am. Jur. 2d Job Discrimination
§ 2184 (listing 14 factors to be considered in determining
whether proposed collective action plaintiffs are
―similarly situated‖ under the ADEA).
Finally, we conclude that the burden is on the
plaintiffs to establish that they satisfy the similarly
situated requirement. See Symczyk, 656 F.3d at 193
(―Should the plaintiff satisfy her burden at [the second]
stage, the case may proceed to trial as a collective
action.‖); see also O’Brien v. Ed Donnelly Enters., 575
F.3d 567, 584 (6th Cir. 2009) (―The lead plaintiffs bear
the burden of showing that the opt-in plaintiffs are
similarly situated to the lead plaintiffs.‖).

20
 What remains unresolved is the level of proof the
plaintiffs must satisfy. In Symczyk, we specifically
declined to answer this question. Symczyk, 656 F.3d at
193 n.6 (―Because only the notice stage is implicated in
this appeal, we need not directly address the level of
proof required at the post-discovery stage.‖). To our
knowledge, no other Court of Appeals has directly
answered this question.
We now hold that plaintiffs must satisfy their
burden at this second stage by a preponderance of the
evidence.6 As the Second Circuit observed, the task on
final certification is determining ―whether the plaintiffs
who have opted in are in fact ‗similarly situated‘ to the
named plaintiffs.‖ Myers, 624 F.3d at 555. That seems
impossible unless Plaintiffs can at least get over the line
of ―more likely than not.‖ At the same time, a stricter
standard would be inconsistent with Congress‘ intent that
the FLSA should be liberally construed. See Morgan,
551 F.3d at 1265 (―We also bear in mind that the FLSA
is a remedial statute that should be liberally construed.‖).

6
Because this issue is necessary to our decision and was
not directly addressed in the original briefs, we requested
supplemental briefing. Wal-Mart asserted that a
preponderance standard applied. In their brief, the
Plaintiffs did not articulate a precise burden. But at oral
argument, both parties agreed that a preponderance of the
evidence standard was appropriate.
21
 Our conclusion that preponderance of the evidence
is the appropriate standard to apply is buttressed by the
Supreme Court‘s presumption ―that this standard is
applicable in civil actions between private litigants unless
‗particularly important individual interests or rights are at
stake.‘‖ Grogan v. Garner, 498 U.S. 279, 286 (1991).
And we have said that ―[w]e see no reason to deviate
from the traditional preponderance of the evidence
standard in the absence of express direction from
Congress.‖ United States v. Himler, 797 F.2d 156, 161
(3d Cir. 1986).
We hold that plaintiffs must demonstrate by a
preponderance of the evidence that members of a
proposed collective action are similarly situated in order
to obtain final certification and proceed with the case as a
collective action.

3. Application of the FLSA
Certification Standard
Plaintiffs have failed to satisfy the ―similarly
situated‖ standard. The similarities among the proposed
plaintiffs are too few, and the differences among the
proposed plaintiffs are too many.

22
 Plaintiffs‘ theory is that Wal-Mart wanted clean
stores ―on the cheap.‖7 To that end, Wal-Mart distributed
a maintenance manual that went into exacting detail
about how to clean floors, shelves, bathrooms, and other
parts of the store. This manual mandated procedures that
all employees and contractors were to use. Store
managers also received a form contract for use with
outside cleaning contractors, and were instructed that
they had final authority to approve or disapprove
members of cleaning crews. There is evidence that store
managers fired members of cleaning crews and that Wal-
Mart employees regularly directed cleaning crews in
conducting their work in the store. There is also
evidence that Wal-Mart store managers and corporate
officers knew and approved of contractors‘ widespread
hiring of illegal immigrants.

7
For purposes of this analysis, we will recite the facts as
set forth by the Plaintiffs. This is not required by the
certification analysis, but we do so to demonstrate that,
even reciting the facts to Plaintiffs‘ benefit, Plaintiffs are
unable to meet their burden for certification. We note
that Wal-Mart disputes many of these facts, such as the
provenance of the maintenance manual and how
widespread was its use, the hiring and firing authority of
store managers, etc. We do not purport to resolve these
factual disputes either for or against the Plaintiffs or Wal-
Mart.
23
 Being similarly situated does not mean simply
sharing a common status, like being an illegal immigrant.
Rather, it means that one is subjected to some common
employer practice that, if proved, would help
demonstrate a violation of the FLSA. And, indeed,
Plaintiffs‘ allegation of a common scheme to hire and
underpay illegal immigrant workers provides some
common link among the proposed class. Plaintiffs‘
evidence with regard to the maintenance manual, the
authority of store managers, and the supervision by store
employees is relevant to demonstrating whether Wal-
Mart employed the proposed plaintiffs. And such a
scheme potentially demonstrates Wal-Mart‘s willfulness
in violating the FLSA. But these common links are of
minimal utility in streamlining resolution of these cases.
Liability and damages still need to be individually
proven.

While the District Court noted the commonalities
among the proposed plaintiffs, it was ultimately
convinced that the class should not be certified for trial.
―In all,‖ it found, ―the putative class members worked in
180 different stores in 33 states throughout the country
and for 70 different contractors and subcontractors. The
individuals worked varying hours and for different wages
depending on the contractor.‖ Zavala, No. 03-5309,
2010 WL 2652510, at *3 (internal citations omitted).
These factors convinced the District Court that there
were ―significant differences in the factual and
24
employment settings of the individual claimants.‖ Id.
The District Court also noted that different defenses
might be available to Wal-Mart with respect to each
proposed plaintiff, including that individual cleaners
were not Wal-Mart employees, as that term is defined by
the FLSA, and that it paid some of its contractors an
adequate amount to support an appropriate wage for the
cleaners. See id. at *4-*5.
We agree with the District Court. Considering the
numerous differences among members of the proposed
class in light of the alleged common scheme‘s minimal
utility in streamlining resolution of the claims, we
conclude that the Plaintiffs have not met their burden of
demonstrating that they are similarly situated. We will
therefore affirm the District Court‘s decision to deny
final certification.

B. Civil RICO Claims
Plaintiffs originally alleged RICO violations with
underlying predicate acts of transporting, harboring,
encouraging, and hiring illegal immigrants, mail and wire
fraud, money laundering, and related conspiracy and
aiding and abetting claims. The District Court then
dismissed Plaintiffs‘ civil RICO claims for failure to state
a claim on the underlying predicate acts. See Zavala v.
Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 304 (D.N.J.
2005). When Plaintiffs later amended their complaint,
they dropped the predicate acts of hiring illegal
25
immigrants and mail and wire fraud. In its subsequent
opinion, the District Court took a different approach. It
first held that Plaintiffs had failed to state a claim for the
predicate act of involuntary servitude. But for the other
predicate acts – transporting illegal immigrants,
concealing illegal immigrants, harboring illegal
immigrants, conspiracy / aiding and abetting claims for
each of these, and conspiracy to commit money
laundering – the District Court held that Plaintiffs had
failed to show a causal nexus between these acts and
their alleged injury. It also held that Plaintiffs had failed
to satisfy RICO‘s distinctness requirement. See Zavala v.
Wal-Mart, 447 F. Supp. 2d 379 (D.N.J. 2006). For these
independent reasons, the District Court again dismissed
Plaintiffs‘ RICO allegations for failure to state a claim.

In its later opinion, the District Court did not
disavow its prior holding that Zavala had failed to plead
at least two predicate acts, and Wal-Mart renews this
argument on appeal. See Appellee‘s Br. at 24. Wal-
Mart is correct. We conclude that Plaintiffs have failed
to state a claim for RICO or RICO conspiracy by failing
to allege a pattern of predicate acts.8

8
We also have serious doubt that the Plaintiffs have met
the pleading requirements for RICO distinctness and
proximate causation, but we do not need to reach those
issues, in light of the pleading deficiency regarding
predicate acts.
26
 On a motion to dismiss for failure to state a claim,
our review is plenary. See Phillips v. Cnty. of Allegheny,
515 F.3d 224, 230 (3d Cir. 2008). The complaint‘s
―[f]actual allegations must be enough to raise a right to
relief above the speculative level.‖ Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007).

1. Pleading of the RICO Conspiracy
Claim
In addition to their RICO claim, Plaintiffs also
claim conspiracy to violate RICO under 18 U.S.C.
§ 1962(d) (―It shall be unlawful for any person to
conspire to violate any of the provisions of subsection
(a), (b), or (c) of this section.‖). RICO conspiracy is not
a mere conspiracy to commit the underlying predicate
acts. It is a conspiracy to violate RICO – that is, to
conduct or participate in the activities of a corrupt
enterprise. See Salinas v. United States, 522 U.S. 52, 62
(1997) (―Before turning to RICO‘s conspiracy provision,
we note the substantive RICO offense, which was the
goal of the conspiracy[.]‖ (emphasis added)); Banks v.
Wolk, 918 F.2d 418, 421 (3d Cir. 1990) (―[A] defendant
can be liable under RICO‘s conspiracy provision for
agreeing to the commission of a pattern of racketeering
activity.‖ (emphasis added)); United States v. Elliott, 571
F.2d 880, 902 (5th Cir. 1978) (―[T]he object of a RICO
conspiracy is to violate a substantive RICO provision
here, to conduct or participate in the affairs of an

27
enterprise through a pattern of racketeering activity and
not merely to commit each of the predicate crimes
necessary to demonstrate a pattern of racketeering
activity.‖). Plaintiffs fail to plead facts supporting a
conclusion that this was the object of the alleged
conspiracy. Accordingly, the dismissal of Plaintiffs‘
claim under Section 1962(d) was not error. It is an
entirely separate question whether Plaintiffs allege a
conspiracy to commit money laundering or immigration
violations, which would then constitute predicate acts for
a traditional RICO claim under 18 U.S.C. § 1962(c). We
will turn to that contention later in this opinion.

2. Pleading of the RICO Predicates
a) Pleading of the RICO
Involuntary Servitude Predicate
Plaintiffs claim that the conditions of their
employment amount to involuntary servitude, barred by
15 U.S.C. § 1584. Per 18 U.S.C. § 1961(1)(B), this is a
RICO predicate act. The District Court concluded that
Plaintiffs failed to allege a plausible claim of involuntary
servitude. We agree.

―[T]he phrase ‗involuntary servitude‘ was intended
. . . ‗to cover those forms of compulsory labor akin to
African slavery[.]‘‖ United States v. Kozminski, 487 U.S.
931, 942 (1988) (quoting Butler v. Perry, 240 U.S. 328,
332 (1916)). ―Modern day examples of involuntary
28
servitude have been limited to labor camps, isolated
religious sects, or forced confinement.‖ Steirer v.
Bethlehem Area Sch. Dist., 987 F.2d 989, 999 (3d Cir.
1993); see, e.g., United States v. King, 840 F.2d 1276,
1280 (6th Cir. 1988) (religious sect violated 18 U.S.C.
§ 1584 where they ―used and threatened to use physical
force to make the children [at their camp] perform labor
and the children believed they had no viable alternative
but to perform such labor‖); United States v. Booker, 655
F.2d 562, 563, 566 (4th Cir. 1981) (migrant labor camp
held farm workers in involuntary servitude, forbade them
from leaving without paying their debts, and enforced the
rule with threats of physical harm, actual physical injury,
and by kidnapping and returning to the farm workers who
attempted to leave); Jobson v. Henne, 355 F.2d 129, 131-
32 (2d Cir. 1966) (patients in mental institution
performing required labor stated Thirteenth Amendment
claim).

Plaintiffs have presented evidence of some
difficult working conditions, but they have demonstrated
nothing ―akin to African slavery‖ or any modern
analogue. Any such comparison is plainly frivolous.
Plaintiffs do not allege that they were held in a labor
camp or forced into daily labor by a religious sect. Any
allegation that their working conditions constituted
forced confinement falls with their false imprisonment
claims, discussed later in this opinion.

29
 To the extent Plaintiffs allege that they were
threatened with deportation, those allegations are
likewise insufficient to constitute involuntary servitude.
In United States v. Kozminski, the Supreme Court
observed that it was ―possible‖ that threatening an
immigrant with deportation might amount to a ―threat of
legal coercion‖ resulting in involuntary servitude. 487
U.S. at 948. At the same time, the Court endorsed Judge
Friendly's observation in United States v. Shackney, 333
F.2d 475 (2d Cir. 1964): ―The most ardent believer in
civil rights legislation might not think that cause would
be advanced by permitting the awful machinery of the
criminal law to be brought into play whenever an
employee asserts that his will to quit has been subdued
by a threat which seriously affects his future welfare but
as to which he still has a choice, however painful.‖
Kozminski, 487 U.S. at 950 (quoting Shackney, 333 F.2d
at 487). In Shackney, the Second Circuit further held:

[W]e see no basis for concluding that
because the statute can be satisfied by a
credible threat of imprisonment, it should
also be considered satisfied by a threat to
have the employee sent back to the country
of his origin, at least absent circumstances
which would make such deportation
equivalent to imprisonment or worse. . . .
[A] holding in involuntary servitude means
to us action by the master causing the
30
 servant to have, or to believe he has, no way
to avoid continued service or confinement, .
. . not a situation where the servant knows
he has a choice between continued service
and freedom, even if the master has led him
to believe that the choice may entail
consequences that are exceedingly bad. . . .
While a credible threat of deportation may
come close to the line, it still leaves the
employee with a choice, and we do not see
how we could fairly bring it within § 1584
without encompassing other types of threat.

333 F.2d at 486-87 (internal citation omitted). We agree
with Judge Friendly‘s analysis. Absent some special
circumstances, threats of deportation are insufficient to
constitute involuntary servitude.

Plaintiffs do not claim that they were compelled to
come to work each day. While they allege that managers
often kept them beyond the end of their shift to finish
their work, they do not claim that they were forced to
remain once that work was finished. The record
demonstrates that Plaintiffs often switched jobs, freely
moving to different employers in different cities.
Plaintiffs do not allege that previous employers ever
pursued them to compel their return to a previous
position. And while a broad reading of Plaintiffs‘
allegations could lead to the conclusion that they were

31
threatened with deportation for refusing to work, that is
legally insufficient to constitute involuntary servitude.
The District Court properly concluded that the Plaintiffs
had failed to adequately plead the RICO predicate of
involuntary servitude.

b) Pleading of the RICO
Transporting Predicate
Transporting illegal immigrants is prohibited as
follows:
Any person who—

(i) knowing that a person is an alien,
brings to or attempts to bring to the United
States in any manner whatsoever such
person at a place other than a designated
port of entry or place other than as
designated by the Commissioner, regardless
of whether such alien has received prior
official authorization to come to, enter, or
reside in the United States and regardless of
any future official action which may be
taken with respect to such alien;

(ii) knowing or in reckless disregard
of the fact that an alien has come to, entered,
or remains in the United States in violation
of law, transports, or moves or attempts to
32
 transport or move such alien within the
United States by means of transportation or
otherwise, in furtherance of such violation
of law . . .

8 U.S.C. § 1324(a)(1)(A)(i)-(ii). When done for
monetary gain, this is a RICO predicate act. See 18
U.S.C. § 1961(1)(F).
Plaintiffs allege two types of scenarios that they
believe constitute transporting: (1) after work crews
were fired or arrested, alternative work crews were
quickly made available, often from other states; and (2)
work crews were transported to work shifts. Even
assuming that any of these actions – had they been taken
by Wal-Mart employees – qualify as ―transporting,‖9
Plaintiffs do not demonstrate that Wal-Mart was
responsible for the transporting. Plaintiffs do not allege
that Wal-Mart employees were ever involved in this
transport. Plaintiffs do not allege specific facts
demonstrating that Wal-Mart aided and abetted transport.
Plaintiffs do allege that Wal-Mart managers would
sometimes request replacement crews, but they simply
assert that the managers knew those crews would be
illegal immigrants and that they would be transported
9
Plaintiffs admit, for example, that many workers
entered the United States on visas and were therefore
entitled to be here but not to work. Transporting such an
individual would not be illegal.
33
across state lines. Even on a motion to dismiss, we are
not required to credit mere speculation. See Twombly,
550 U.S. at 545.

c) Pleading of the RICO
Encouraging Predicate
Encouraging illegal immigration is prohibited as
follows:
Any person who—

....
(iv) encourages or induces an alien to
come to, enter, or reside in the United
States, knowing or in reckless disregard of
the fact that such coming to, entry, or
residence is or will be in violation of law;
...

8 U.S.C. § 1324(a)(1)(A)(iv). When done for monetary
gain, this is a RICO predicate act. 18 U.S.C. §
1961(1)(F).
We have held that, to make out a claim of
―encouraging,‖ Plaintiffs must prove that Wal-Mart
engaged in an ―affirmative act that served as a catalyst
for aliens to reside in the United States in violation of
immigration law when they might not have otherwise.‖
DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241,
34
249 (3d Cir. 2012); see also United States v. Henderson,
No. 09-10028, 2012 WL 1432552, at *17 (D. Mass. Apr.
25, 2012) (―[I]n light of the interpretation of the charging
statute recently provided by the Third Circuit in DelRio-
Mocci, I am satisfied there is no question that those [jury]
instructions were erroneous because they were too open
textured and did not require the jury to find substantiality
to any encouragement or inducement.‖).
Plaintiffs do not allege that they would not or
could not have resided in the United States without
having been employed by Wal-Mart. Moreover, while
the plaintiffs did make allegations against various
cleaning contractors that might be sufficient to state a
claim of encouraging, ―the complaint fails to allege, as it
must, that Wal-Mart took affirmative steps to assist
Plaintiffs to enter or remain unlawfully in the United
States, or that Wal-Mart agreed to undertake conduct
with the purpose of unlawfully encouraging
undocumented aliens.‖ Zavala, 393 F. Supp. 2d at 308.
Thus, Plaintiffs cannot show that Wal-Mart‘s conduct
incited aliens to remain in this country unlawfully when
they otherwise might not have done so, and they
therefore have not alleged that the company engaged in
conduct sufficient to constitute encouraging or inducing.

35
 d) Pleading of the RICO
Harboring Predicate
Harboring illegal immigrants is prohibited as
follows:

Any person who—

....

(iii) knowing or in reckless disregard
of the fact that an alien has come to, entered,
or remains in the United States in violation
of law, conceals, harbors, or shields from
detection, or attempts to conceal, harbor, or
shield from detection, such alien in any
place, including any building or any means
of transportation; . . .

8 U.S.C. § 1324(a)(1)(A)(iii). When done for monetary
gain, this is a RICO predicate act. See 18 U.S.C. §
1961(1)(F).

Plaintiffs‘ Second Amended Complaint alleges one
set of facts that could plausibly support a claim of
harboring. Plaintiffs allege that, at Wal-Mart‘s store in
Kansas City, Missouri, Wal-Mart allowed
―undocumented aliens to sleep in a back room in the
store and to keep their personal belongings there
knowing (or acting in reckless disregard of the fact) that

36
they were undocumented aliens[.]‖ Giving Plaintiffs the
benefit due their complaint on a motion to dismiss, we
will assume Plaintiffs are alleging that Wal-Mart thereby
provided housing to these cleaners (rather than simply a
place to rest).
Even if we assume that these facts support a
harboring claim, Wal-Mart cannot be held responsible for
the actions of a single store manager in Missouri in
allowing illegal immigrants to live in the back of the
store while working there as cleaners. Plaintiffs do not
claim that this decision was ratified by Wal-Mart senior
executives, that it was common practice at Wal-Mart
stores, or that it was within the manager‘s actual or
apparent scope of authority. See United States v.
MacDonald & Watson Waste Oil Co., 933 F.2d 35, 42
(1st Cir. 1991) (―A corporation may be convicted for the
criminal acts of its agents, under a theory of respondeat
superior . . . where the agent is acting within the scope of
employment.‖); United States v. Demauro, 581 F.2d 50,
54 n.3 (2d Cir. 1978) (―Under a respondeat superior
theory of corporate criminal liability, the master‘s
liability would depend on whether the servant‘s acts were
within the ‗scope of the employment.‘ See Prosser, Torts
351 (1955). As Professor Prosser has described it, to be
within the scope of the employment, the ‗servant‘s
conduct‘ must be ‗the kind which he is authorized to
perform, occurs substantially within the authorized limits
of time and space, and is actuated at least in part, by a
37
desire to serve the master.‘ Id.‖). Plaintiffs similarly fail
to allege actions by Wal-Mart that would constitute
aiding and abetting of harboring.

e) Pleading of the RICO Money
Laundering Conspiracy Predicate
We agree with Plaintiffs that they have plausibly
alleged a claim of conspiracy to commit money
laundering. But a single predicate act is not a pattern of
predicate acts and therefore cannot support a RICO
claim. Thus, we agree with the District Court that
Plaintiffs have failed to state a claim.
Plaintiffs allege that Wal-Mart paid its contractors
with full knowledge that those contractors were hiring
illegal immigrants to work in Wal-Mart‘s stores.
Plaintiffs support this contention with further allegations
that two senior Wal-Mart executives made comments that
could be understood as acknowledging that the
contractors had hired and would continue to hire illegal
immigrants. In fact, one of these executives encouraged
one of the cleaning contractors to form multiple
companies so that contracts and payments could be
distributed over a greater number of recipients. This
suggestion was allegedly made shortly after a federal
immigration sweep resulted in the detention of many of
Wal-Mart‘s cleaners.

38
 Money paid to the ―shell‖ companies would
facilitate the hiring of illegal workers. Because Wal-
Mart is alleged to have known that many of those
workers were illegal and that the companies would
continue to hire illegal workers in the future, its intent to
promote such activity can be inferred. Therefore,
Plaintiffs have stated a claim for money laundering
because Wal-Mart had the ―intent . . . to promote the
carrying on of specified unlawful activity‖ and
―conduct[ed] or attempt[ed] to conduct a financial
transaction involving . . . property used to conduct or
facilitate specified unlawful activity[.]‖ 18 U.S.C.
§ 1956(a)(3). Unlike paragraph (a)(1) of the money
laundering statute, paragraph (a)(3) does not require that
the money used be the proceeds of illegal activity.
Instead, the funds can be ―property used to conduct or
facilitate specified unlawful activity.‖ 18 U.S.C.
§ 1956(a)(3). And these funds were allegedly used to
conduct or facilitate the hiring of illegal immigrants.
But one predicate act does not constitute a RICO
pattern. See 18 U.S.C. § 1961(5) (―[A] ‗pattern of
racketeering activity‘ requires at least two acts of
racketeering activity[.]‖).10 Therefore, we agree with the

10
We note that Plaintiffs, for whatever reason, have only
pled a conspiracy to commit money laundering, not
money laundering itself. (A640) Even if we assume that
acts of money laundering resulted from this conspiracy,
39
District Court that the Plaintiffs have failed to state a
claim.

f) Pleading of the RICO
Immigration Conspiracy Predicates
We have concluded that Plaintiffs‘ allegations are
insufficient to directly implicate Wal-Mart in the
predicate acts of transporting, encouraging, or harboring.
But Plaintiffs do allege facts that might support a
conclusion that Wal-Mart‘s cleaning contractors engaged
in these acts. Plaintiffs also allege that Wal-Mart
conspired with those contractors. They support that
claim with specific allegations that Wal-Mart executives
acknowledged that contractors were hiring and would
continue to hire illegal immigrants and that those
contractors would continue to be hired by Wal-Mart. At
most, though, the facts alleged by the Plaintiffs constitute
a conspiracy with the object of saving money through
illegal hiring. Even drawing all reasonable inferences in
their favor, Plaintiffs have not alleged facts sufficient to
support a conspiracy with the purpose of transporting or

Plaintiffs have not claimed those acts themselves as
RICO predicates.

40
harboring illegal immigrants or encouraging illegal
immigration.11

C. False Imprisonment
Plaintiffs‘ false imprisonment claims survived
Wal-Mart‘s initial motion to dismiss. Wal-Mart
subsequently offered affidavits asserting that it locked its
doors at night to provide security for its staff and
merchandise, that managers were often available to open
locked doors, and that Wal-Mart had accessible
emergency exits, as required by state and federal law.
Wal-Mart also argued that Plaintiffs‘ repeated return to
stores where they were ―imprisoned‖ constituted consent.
11
Whether Plaintiffs‘ allegations in fact support claims of
illegal hiring or conspiracy to commit illegal hiring is not
before us, and is not an issue we purport to resolve. We
note, though, that the intent element required for
establishing an illegal hiring violation is difficult to meet,
a difficulty recognized by our sister circuits. See, e.g.,
Walters v. McMahen, __ F.3d ____, 2012 WL 2589229,
at *4 (4th Cir. 2012). Given Plaintiffs‘ failure to plead a
conspiracy to commit illegal hiring (and the insufficiency
of Plaintiffs‘ allegations with respect to the conspiracies
they did plead), we also have no occasion to consider
whether predicate acts committed by co-conspirators in
foreseeable furtherance of an alleged conspiracy
predicate would themselves be RICO predicate acts. Cf.
Pinkerton v. United States, 328 U.S. 640 (1946).
41
In response, Plaintiffs: (1) cited specific instances where
they wanted to leave and managers were unavailable or
refused to let them leave; (2) noted that no one ever
showed them the location of emergency exits and their
minimal proficiency in English would make it difficult or
impossible to find them on their own; and (3) argued that
Wal-Mart had an interest in concealing emergency exits
to prevent theft of merchandise and discovery of the
illegal workers by federal agents. On summary
judgment, the District Court found Wal-Mart‘s assertions
regarding the presence of emergency exits dispositive, as
false imprisonment cannot occur where there is a safe
alternative exit. Zavala v. Wal-Mart Stores, Inc., No. 03-
5309, 2011 WL 1337476 (D.N.J. Apr. 7, 2011). We
agree with the District Court‘s conclusion, though we
will expand on the District Court‘s analysis.
Federal Rule of Civil Procedure 56 requires the
court to render summary judgment ―if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.‖ Fed. R. Civ. P. 56(a). ―[T]his standard provides
that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). An issue of material fact is ―genuine‖ if
the evidence is such that a reasonable jury could return a
42
verdict for the nonmoving party. See id. at 257. ―We
exercise plenary review over a District Court‘s grant of
summary judgment and review the facts in the light most
favorable to the party against whom summary judgment
was entered.‖ Beers-Capitol v. Whetzel, 256 F.3d 120,
130 n.6 (3d Cir. 2001).

As this is a state law claim, the first question to be
resolved is: what state law should be applied? After
performing a choice-of-law analysis, the District Court
applied New Jersey law. Zavala, 393 F. Supp. 2d at 333.
We believe the District Court was correct in its choice of
New Jersey law, and Plaintiffs do not dispute its
application.
The majority of Plaintiffs‘ false imprisonment
claims fail because Plaintiffs impliedly consented to their
―imprisonment.‖ Apparently from the very beginning of
their employment, Plaintiffs were aware that Wal-Mart‘s
policy was to close and lock the main doors of its stores
when they are not open for business. Plaintiffs
nevertheless chose to continue coming to work. They do
not allege that they objected to the locked-door policy,
nor do they allege that they requested a manager be
available during their shift to open the doors. Continuing
to come to work under these conditions is ―conduct . . .
reasonably understood by another to be intended as
consent‖ and is therefore ―as effective as consent in fact.‖

43
Restatement (Second) of Torts § 892.12 As such,
Plaintiffs ―cannot recover in an action of tort for the
conduct or for harm resulting from it.‖ Id. at § 892A.

But consent can be withdrawn, and Plaintiffs
allege two instances when they wanted to leave but were
unable to do so. Teresa Jaros alleges that she was sick
and wanted to leave, but no manager was available to
open the door. Petr Zednik alleges that he had a
toothache, asked to leave, and was told he could not. He
also alleges that he believed his manager, a ―muscular‖
―blond‖ man, would assault him if he attempted to leave.
Jaros‘ consent likely encompasses the incident she
alleges. By the time of her illness, she knew that she
must work in a locked store for the duration of the shift.
She knew that a manager would often be absent and
therefore unable to open the door should a problem arise.
(PSA211) Her consent arguably includes that aspect of
her work. Consent only terminates ―when the actor
12
The New Jersey courts make frequent use of the
Restatement, including in resolving false imprisonment
cases. See, e.g., Freeman v. State, 788 A.2d 867, 877
(N.J. Super. Ct. App. Div. 2002); Fair Oaks Hosp. v.
Pocrass, 628 A.2d 829, 836 (N.J. Super. Ct. Law Div.
1993). We have not seen any indication that the portions
of the Restatement upon which we rely are contrary to
New Jersey law.

44
knows or has reason to know that the other is no longer
willing for him to continue the particular conduct.‖
Restatement (Second) of Torts § 892A cmt. h. Since
Wal-Mart was unaware that Jaros wanted to leave
(because no manager was there), Jaros could not
terminate her consent.

Regardless, Jaros‘ complaint and Zednik‘s
complaint are resolved by the availability of emergency
exits. ―To make the actor liable for false imprisonment,
the other‘s confinement within the boundaries fixed by
the actor must be complete. . . . The confinement is
complete although there is a reasonable means of escape,
unless the other knows of it.‖ Restatement (Second) of
Torts § 36. While both Jaros and Zednik disclaim
knowledge of the emergency exits, such knowledge is
properly imputed to them, even over their proclaimed
ignorance and even on summary judgment. Federal Rule
of Evidence 201 permits judicial notice of facts
―generally known within the trial court‘s territorial
jurisdiction‖ and we have noted that this includes
―matters of common knowledge.‖ See Gov’t of Virgin
Islands v. Gereau, 523 F.2d 140, 147 (3d Cir. 1975).
Courts have used judicial notice to establish facts in
similar situations. See Williams v. Kerr Glass Mfg.
Corp., 630 F. Supp. 266, 270 (E.D.N.Y. 1986) (taking
judicial notice of the distance between federal courts in
New York and Pennsylvania and the numerous means of
transportation between them); Penthouse Int’l, Ltd. v.
45
Koch, 599 F. Supp. 1338, 1346 (S.D.N.Y. 1984) (taking
judicial notice of the ―layout and physical characteristics‖
of the New York City subway system, which the judge
rode daily to work).

Emergency exits are by regulation a common
feature of commercial buildings in the United States. We
agree with the District Court that ―it appears . . .
indisputable that these emergency exits are required by
law to be clearly marked, easily accessible, and
unobstructed.‖ Zavala, No. 03-5309, 2011 WL 1337476,
at *1 (internal quotation marks omitted). We conclude
that Jaros and Zednik must have been aware of the
existence of emergency exits as a general feature of
buildings, and therefore they must have been aware that
emergency exits were likely to exist in the stores in
which they worked. A reasonable jury could not
conclude otherwise.

The question remaining is whether emergency
exits were in fact available and unobstructed at the Wal-
Mart stores in question. Wal-Mart has offered evidence
of the availability and unobstructed nature of emergency
exits in its stores. Plaintiffs have not directly rebutted
this evidence. They have merely offered speculation that
Wal-Mart had motive to conceal any emergency exits.
But Plaintiffs do not actually demonstrate that the exits
were absent or obstructed in any way. Judgment in favor
of Wal-Mart is appropriate.

46
 Plaintiffs cannot succeed by advancing a defense
that leaving through the emergency exit would trigger an
alarm or potentially result in the loss of their jobs.
Regarding the alarm, ―it is unreasonable for one whom
the actor intends to imprison to refuse to utilize a means
of escape of which he is himself aware merely because it
entails a slight inconvenience[.]‖ Restatement (Second)
of Torts § 36 cmt. a; Richardson v. Costco Wholesale
Corp., 169 F. Supp. 2d 56, 61 (D. Conn. 2001) (―The fact
that opening the employee exit door would result in an
alarm sounding and possible employee discipline does
not give rise to an inference that actual confinement or
threatening conduct took place.‖). Nor is potential loss
of employment a sufficient threat to constitute false
imprisonment. See Maietta v. United Parcel Serv., Inc.,
749 F. Supp. 1344, 1367 (D.N.J. 1990) (concluding an
employee‘s concern that he would lose his job if he
exited an interview with company investigators was
insufficient to support a claim for false imprisonment
under New Jersey law), aff’d 932 F.2d 960 (3d Cir.
1991); Richardson, 169 F. Supp. 2d at 61-62 (―Moral
pressure or threat of losing one‘s job does not constitute a
threat of force sufficient to establish that plaintiffs were
involuntarily restrained.‖).

The only remaining issue is Zednik‘s claim that
when he approached his manager and was denied
permission to leave, he ―knew that [the manager] would
assault [him] if [Zednik] tried to escape through any door
47
that would let [him] out.‖ Zednik asserts that the
manager wanted the store clean for the impending visit of
a Wal-Mart executive. But Zednik‘s sole evidence of the
manager‘s supposed violent tendencies is that the
manager ―is a muscular man (with blond hair)[.]‖ We
need not credit this statement in any way.

In an earlier declaration, Zednik relates the
toothache story and the request made to and denied by
his manager, but curiously omits any belief that his
manager would assault him. It is only in his third
supplemental declaration – filed only a few weeks after
Wal-Mart moved for summary judgment – that Zednik
mentions the prospect that his manager might randomly
assault him. Even on summary judgment, we need not
credit a declaration contradicting a witness‘ prior sworn
statements. See Martin v. Merrell Dow Pharms., Inc.,
851 F.2d 703, 705 (3d Cir. 1988); see also Jiminez v. All
Am. Rathskeller, Inc., 503 F.3d 247, 251-54 (3d Cir.
2007) (discussing the sham affidavit doctrine). While not
precisely contradictory, Zednik‘s omission of such a
crucial fact is highly questionable.
But even absent these suspicious circumstances,
we conclude that no reasonable jury could credit
Zednik‘s speculative statement that his manager would
assault him had he tried to leave. Zednik offers no
evidence in support of the statement. He does not allege
that the manager had a propensity for violence. And he

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does not allege that the manager overtly or impliedly
threatened him. Thus, summary judgment was
appropriate.

V. Conclusion
Over the course of eight years and a minimum of
four opinions, the District Court rejected final
certification of an FLSA class, rejected the RICO claim
on several grounds, and rejected the false imprisonment
claim on the merits. We will affirm.

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