Civil practice – Rule 11 – Dismissal

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Where 38 plaintiffs have filed suit for overtime wages under the FLSA, the defendant’s motion for dismissal as a sanction should be denied without prejudice because the defendant has not shown the plaintiff’s counsel violated Rule 11(b)(1) or 11(b)(2)-(3) of the Federal Rules of Civil Procedure.

“After a dismissal of a FLSA collective action, thirty-eight plaintiffs (‘Plaintiffs’) have filed this lawsuit against Defendant Federal Express Corporation, successor by merger to FedEx Ground Package System, Inc. ( ‘FedEx’), for failing to pay overtime wages owed to Plaintiffs in violation of the Fair Labor Standard Act (‘FLSA’), 29 U.S.C. §201, et seq. … FedEx has moved to dismiss the amended complaint as a sanction for violation of Fed. R. Civ. P. 11 by Plaintiffs’ counsel Litchten & Liss-Riordan, P.C. (‘LLR’). …

“In 2017, LLR filed an FLSA collective action against FedEx, Roy v. FedEx Ground Package System, Inc., 17-cv-30116-KAR (D. Mass.). …

“On August 6, 2024, LLR filed the initial complaint for this action on behalf of Plaintiffs, D. 1, amended on September 25, 2024, D. 14. On the same day, LLR also filed a complaint in another action, Alleyne et al. v. Federal Express Corporation, 24-cv-12031-RGS, D. 1, amended on October 3, 2024, D. 21. The plaintiffs in both this case and Alleyne consist of former Roy opt-ins. … On December 2, 2024, FedEx now has moved for Rule 11 sanctions against LLR and requests dismissal of Plaintiffs’ amended complaint. …

“FedEx alleges that LLR has breached its duty to conduct a reasonable pre-filing inquiry because it did not fully communicate the rights and responsibilities entailed in being a plaintiff here to the Roy opt-ins but only signed them up for this litigation based on ‘nothing more than [their] basic information [] and confirmation that they are not an employee of FedEx.’ …

“Here, LLR asserts that it relied upon representations made in the opt-in consent forms in Roy in selecting the plaintiffs in this matter. … These forms contain declarations ‘under penalty of perjury’ that the opt-in had ‘delivered packages for FedEx within the statute of limitations, and that they were not paid for overtime to which they were entitled during that time period.’ … Here, where LLR only had 120 days from the date of decertification to investigate and file claims ‘of more than 400 individuals who were former opt-in to the Roy litigation,’ ‘who (for the most part) had not engaged in substantial discovery,’ … it is not unreasonable for LLR to rely upon sworn declarations of same to determine whether they should be included as plaintiffs in this case. …

“Moreover, to the extent that FedEx relies upon two social media posts containing communications to opt-in plaintiffs regarding this case and a screenshot of a sign-up portal for same as evidence that LLR has failed to adequately communicate the requisite information to opt-ins, … FedEx cannot presume to know what the firm communicated to its clients or what LLR counsels did to vet their clients claims based solely on same. …

“Lastly, even assuming arguendo that LRR has failed to adequately inform the opt-ins about their obligations as litigants, it is difficult to ascertain the link between this alleged failure and FedEx’s argument that this failure was an attempt to ‘increase[] the costs of litigation for FedEx in an attempt to harass FedEx into settlement.’ … Even if the Court considers LLR’s alleged threat to pursue more claims unless FedEx settles, … FedEx has not, on the present record, plausibly shown a link between this alleged failure to inform and an intent to harass at this stage of the litigation. …

“… FedEx’s assertion that the same discovery difficulties that arose in Roy is ‘prologue,’ D. 28 at 18, for what will happen in this case is too speculative to sustain Rule 11 sanctions at this point. … Even assuming arguendo that LLR will face some of the same discovery issues in this case as it did in Roy, that in and of itself is insufficient at present to support FedEx’s assertion that LLR had filed this action ‘only to ‘harass, cause unnecessary delay, [and] needlessly increase the cost of litigation.’ … The Court might come to a different conclusion if similar discovery difficulties are encountered here in discovery from the thirty-eight Plaintiffs, but that is not the present record before the Court. …

“For the aforementioned reasons, the Court denies the motion for sanctions under Rule 11(b)(1). …

“FedEx next alleges that LLR has violated Fed. R. Civ. P. 11(b)(2)-(3), which requires an attorney to certify that his or her claims have legal and evidentiary support. … As alleged, LLR has violated the rule (1) because it has failed to allege ‘accurate facts for many of the plaintiffs’ claims’ and (2) because it has not requested pay documents from the plaintiffs’ employers. …

“… To the extent that LRR’s allegations later will be undermined by evidence, FedEx will have an opportunity to make that showing at summary judgment. …

“Additionally, FedEx also argues that LLR failed to investigate information contained in scanner and vehicle data from the Roy case which allegedly contain relevant data concerning hours worked. … As discussed, however, where LLR had a short amount of time to sift through information of the Roy opt-ins prior to filing this action, their reliance upon the opt-in consent forms in this particular case appears, at this juncture, to constitute reasonable pre-filing investigation. …

“For the reasons stated below, the Court denies FedEx’s motion for sanctions without prejudice. …”

Doyle, et al. v. Federal Express Corporation (Lawyers Weekly No. 02-386-25) (10 pages) (Casper, J.) (Docket No. 24-cv-12030-DJC) (July 17, 2025).

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