Liptak et al v. Cracker Barrel Old Country Store Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Andrew Harrington, et al.,
Plaintiffs,
v.
Cracker Barrel Old Country Store
Incorporated,
Defendant.
No. CV-21-00940-PHX-DJH
ORDER
Before the Court in this collective action is a Motion to Sever and Transfer Non-
Arizona Plaintiffs to the District of Massachusetts, Central Division filed by Plaintiff Sara
Liptak (“Liptak”)1 and others similarly situated. (Doc. 114). Defendant Cracker Barrel
Old Country Store Incorporated (“Cracker Barrel”) has filed a response in Opposition and
Liptak has filed a Reply. (Docs. 119 & 122). For reasons stated below, the Court will
transfer the claims of the non-Arizona Plaintiffs to the District Court of Massachusetts,
Central Division.
I. Background
More than any other defining feature, this case is marked by its extensive procedural
history. In short, it concerns an action arising out of the Fair Labor Standards Act (“FLSA”)
brought by several plaintiffs seeking to remedy Cracker Barrel’s alleged failure to pay them
proper wages. (Doc. 1). Cracker Barrel was originally successful on its first Motion to
Dismiss because the Court found that the originally named plaintiffs were subject to a valid
1 Liptak states that she will serve as the named Plaintiff for the non-Arizona group of
plaintiffs based in Massachusetts. (Id. at 2).
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arbitration agreement. (Doc. 21). But that was not the end for either plaintiffs or Cracker
Barrel. While the original plaintiffs pursued their case in arbitration, Liptak and other
former Cracker Barrel employees filed a First Amended Complaint (“FAC”) stating that
they were all minors when they signed the arbitration agreement and therefore were not
bound by its terms. (Doc. 73). Because none of the named plaintiffs were from Arizona or
worked in Cracker Barrel’s Arizona stores, however, the Court lacked personal jurisdiction
over these plaintiffs and again granted Cracker Barrel’s Motion to Dismiss. (Doc. 62).
Plaintiffs were unhindered, even after this setback, in their pursuit of having this litigation
move forward. They filed a Second Amended Complaint (“SAC”), this time adding an
Arizona Cracker Barrel employee as a plaintiff. (Doc. 74 at ¶¶ 6–9). Ultimately, the Court
found that this addition cured the jurisdictional defect in the FAC and denied Cracker’s
Barrel’s third Motion to Dismiss. (Doc. 82). The Court also granted conditional
certification of a collective action under the FLSA. (Id.)
The Court’s grant of conditional certification triggered a litany of Motions from
Cracker Barrel. One of the motions was a Motion to Certify Interlocutory Appeal
(Doc. 84). The Court ultimately certified for appeal the following two questions:
(1) Whether a District Court may allow sending a notice under
Section 216(b) of the FLSA to individuals whom the Court has
determined to be bound by an enforceable arbitration
agreement; and
(2) Whether Bristol-Myers Squibb Co. v. Superior Ct. of
California, San Francisco Cnty., 582 U.S. 255, 265 (2017),
prevents a District Court from sending notice under Section
216(b) of the FLSA to individuals over whom the Court lacks
specific personal jurisdiction.
(Doc. 106 at 21). Both questions were answered by the Ninth Circuit in the affirmative.
The second question is particularly pertinent to Liptak’s Motion to Sever and Transfer. In
its Order, the Ninth Circuit held that Bristol-Myers applies in collective actions under the
FLSA and to that end, specific personal jurisdiction must be analyzed for every individual
plaintiff proceeding under the collective action. (Doc. 117-1 at 15). Practically, this meant
that specific personal jurisdiction was not satisfied for all plaintiffs in the collective simply
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because one was an Arizona resident that worked at an Arizona Cracker Barrel location.
Based on the Ninth Circuit’s decision, Liptak has now filed a Motion to Sever and Transfer
the Non-Arizona Plaintiffs from Massachusetts to the District Court of Massachusetts.
(Doc. 114). In its opposition, Cracker Barrel suggests that dismissal of the entire action is
more appropriate. For reasons outlined below, the Court will sever the non-Arizona
Plaintiffs’ claims and transfer them to the District Court of Massachusetts, Central
Division.
II. Legal Standards
Liptak cites three distinct statutes2 as a means for achieving transfer: 28 U.S.C.
§§ 1404, 1406, and 1631.
Section 1404(a) gives the district courts broad discretion to “adjudicate motions for
transfer according to an individualized, case-by-case consideration of convenience and
fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (cleaned up). The district
court is required to weigh multiple factors when deciding a motion to transfer under Section
1404. The near exhaustive list includes the following: (1) the location where the relevant
agreements were negotiated and executed; (2) the state that is most familiar with the
governing law; (3) the plaintiff’s choice of forum; (4) the respective parties’ contacts with
the forum; (5) the contacts relating to the plaintiff’s cause of action in the chosen forum;
(6) the differences in the costs of litigation in the two forums; (7) the availability of
compulsory process to compel attendance of unwilling non-party witnesses; and (8) ease
of access to sources of proof. Stewart Org., 487 U.S. at 29–31. Other factors that are
important include the presence of a forum selection clause and the public policy of the
forum state, if any. Id. at 29. To that end, transfers under Section 1404 are highly
discretionary and case specific. See Badea v. Cox, 931 F.2d 573, 575 (9th Cir. 1991).
By contrast, Section 1406 is the appropriate statute under which to transfer a case if
the transferring court is not the proper venue. See 28 U.S.C. § 1406(a). Importantly, venue
2 Although the Court lays out the differences in these statutes, practically, it makes no
difference which statute the Court chooses to transfer the case. 14D Wright & Miller's
Federal Practice & Procedure § 3842 (4th ed. 2026).
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is not a jurisdictional component. A court can have personal and specific jurisdiction and
still be the wrong venue to hear a case. “In distinguishing between the principles of
jurisdiction and venue, we note that ‘[j]urisdiction is the power to adjudicate, while venue,
which relates to the place where judicial authority may be exercised, is intended for the
convenience of the litigants.’ ” Securities Inv. Prot. Corp. v. Vigman, 764 F.2d 1309, 1313
(9th Cir. 1985) (citing Still v. Rossville Crushed Stone Co., 370 F.2d 324, 325 (6th Cir.
1966) (further internal citations omitted) (emphases in original)). Stated differently,
transfer under Section 1406 is only proper if “the defendant has moved to dismiss (or
transfer) for improper venue.” Tisher v. Boeing Company, 2026 WL 982883, at * 12 (D.
Or. Apr. 13, 2026).
The third statute cited by Liptak, Section 1631, is used specifically to cure
deficiencies in jurisdiction. See 14D Wright & Miller's Federal Practice & Procedure
§ 3842 (4th ed. 2026). The statute’s plain terms highlight this distinction between the other
statutes by stating that the statute should be used to transfer a case when there is a “want
of jurisdiction.” 28 U.S.C. § 1631. While all circuits and courts agree that the phrase
“want of jurisdiction” applies to want of subject matter jurisdiction, there is a circuit split
regarding its applicability to personal jurisdiction. Wright & Miller, supra, § 3842. Courts
in the Ninth Circuit, however, generally find that it does apply to personal jurisdiction.
Tisher, 2026 WL 982883, at * 12 (noting the trend and citing examples).
III. Discussion
Liptak urges the Court to allow transfer under any of three transfer statutes.
(Doc. 114 at 5). Cracker Barrel responds by insisting that dismissal of the lawsuit is
appropriate because none of the transfer statutes apply.3 (Doc. 119 at 4). The Court does
3 Cracker Barrel cites to inapposite cases to argue that dismissal is appropriate. For
instance, Clark v. Busey held that the district court lacked subject matter jurisdiction, not
personal jurisdiction, as it does here. Clark v. Busey, 959 F.2d 808, 814 (9th Cir. 1992).
Froelich v. Petrelli, 472 F. Supp. 756, 763 (D. Haw. 1979), cited by Cracker Barrel, is also
distinguishable. In Froelich, the district court refused to transfer the case because of a
statute of limitations issue. Id. And in NelsonDevlin v. Eli Lilly & Company, not only was
Section 1631 not considered, but the court decided that transfer was indeed appropriate.
2015 WL 5436700, at *4 (E.D. Cal. Sept. 15, 2015).
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not find either party’s legal support for its arguments particularly persuasive4 but will
nonetheless transfer the claims of the non-Arizona plaintiffs based in Massachusetts to that
district court, in line with Liptak’s request to do so under Section 1631.
The Court will sever the Massachusetts-based plaintiffs and transfer their claims to
the District of Massachusetts based on its authority under Section 1631. Here, there is
clearly a “want of jurisdiction” regarding the non-Arizona Plaintiffs. Again, courts in the
Ninth Circuit generally support the reading of Section 1631 that encompasses a transfer
based on a lack of personal jurisdiction. Tisher, 2026 WL 982883, at * 12. Indeed, that is
exactly what the Ninth Circuit found when this litigation went on appeal: that this Court
lacks personal jurisdiction over Cracker Barrel for the claims of the non-Arizona plaintiffs.
Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678, 681 (9th Cir. 2025).
In other words, the Court finds that Section 1631 allows for a transfer of the non-Arizona
Plaintiffs to the District of Massachusetts based on its plain text and legislative history. See
Wright & Miller, supra, § 3842 (explaining the legislative and case history and citing
examples). Therefore, the Court will sever the non-Arizona plaintiffs based in
Massachusetts and transfer their claims to the District of Massachusetts under Section
1631.
Accordingly,
IT IS ORDERED that Liptak’s Motion to Sever and Transfer Non-Arizona
Plaintiffs to the District of Massachusetts, Central Division (Doc. 114) is granted.
IT IS FURTHER ORDERED that the parties shall meet and confer to determine
which opt-in plaintiffs must be severed and accordingly file a notice identifying these opt-
4 Liptak’s analysis of the different transfer statutes collapses all three and focuses the
inquiry on whether the “interests of justice” endorse a transfer. Cracker Barrel’s rebuttal
of Liptak’s position, on the other hand, states that Section 1631 only allows transfer for
lack of subject matter jurisdiction. Both parties are mistaken. The three transfer statutes
are used for distinct purposes and operate to achieve different results. See infra Section II.
And Cracker Barrel’s argument that Section 1631 only applies to address a lack of subject
matter jurisdiction simply misstates the law. Tisher, 2026 WL 982883, at * 12. Finally,
neither party fully briefed why the multiplicity of factors that go into a Section 1404(a)
analysis apply or fail to apply. Without that information from the parties, the Court will
not endeavor on its own to wade into that multi-factor test and make the parties’ arguments
for them. Finally, Section 1406 only allows for transfer for improper venue, most often
done on a motion to dismiss, which are not the circumstances here.
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in plaintiffs on or before June 10, 2026.
IT IS FURTHER ORDERED that the Clerk of Court shall create a new action
captioned as Sarah Liptak on behalf of herself and all other persons similar situated v.
Cracker Barrel Old Country Store. Inc. Plaintiffs in that action shall be the severed opt-in
plaintiffs. Dylan Basch shall remain the named representative for the Arizona-based opt-
in plaintiffs in the current case pending before the Court.
IT IS FINALLY ORDERED that the Clerk of Court shall take all steps needed to
transfer the newly-formed action to the United States District Court for the District of
Massachusetts, Central Division.
Dated this 27th day of May, 2026.
Honorable Diane J. Humetewa
United States District Judge
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