The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION AND ORDER
Plaintiffs, bus drivers for Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"), brought this collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., seeking compensation for time spent performing required pre-trip safety inspections of their buses during a "swing run". Presently before the Court is SEPTA's Motion to Dismiss the Second Amended Complaint pursuant to Rule 12(1) or, in the alternative, pursuant to 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Motion is denied.
Plaintiffs filed the initial Complaint in this matter on February 28, 2006. On March 23, 2006, SEPTA filed a Motion to Dismiss based solely on the contention that it was immune from suit under the Eleventh Amendment. Plaintiffs also filed a Motion for Class Certification, which SEPTA opposed. By Memorandum Opinion and Order dated February 12, 2007, the Court treated the Motion to Dismiss as a Motion for Summary Judgment and denied the Motion.
On February 20, 2007, SEPTA filed an appeal from the Court's February 12, 2007 Memorandum Opinion and Order to the Third Circuit. On that same date, SEPTA filed a Motion to Stay all proceedings in this Court pending resolution of the appeal. On March 7, 2007, the Court granted the Motion as unopposed. In that same Order, the Court also denied Plaintiff's Motion for Class Certification with leave to renew after resolution of the appeal. By Order dated December 22, 2008, the Third Circuit affirmed the Order of this Court entered on February 12, 2007.
SEPTA subsequently filed a Petition for a Writ of Certiorari with the United States Supreme Court which was ultimately denied. SEPTA agreed to allow Plaintiffs to file an amended complaint while the Petition was pending, but the parties agreed that all other activity would cease pending resolution of the Writ. On May 27, 2009, Plaintiffs filed an Amended Collective Action Complaint against SEPTA. On June 10, 2009, Plaintiffs filed a Second Amended Collective Action Complaint against SEPTA. On July 15, 2009, SEPTA filed a Motion to Dismiss the Second Amended Complaint, raising for the first time that the Court lacked subject matter jurisdiction over this action because the Plaintiffs' claim was subject to arbitration under the collective bargaining agreement ("CBA") between SEPTA and Plaintiffs' Union, Transport Workers Union Local 234 (the "Union").
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a court may dismiss a case for lack of subject matter jurisdiction. The plaintiff has the burden of establishing subject matter jurisdiction. Carpet Group Int'l v. Oriental Rug Imp. Ass'n, 277 F.3d 62, 69 (3d Cir. 2000).
A Rule 12(b)(1) motion may present either a facial or factual challenge to subject matter jurisdiction. "A challenge to a complaint for failure to allege subject matter jurisdiction is known as a 'facial' challenge, and must not be confused with a 'factual' challenge contending that the court in fact lacks subject matter jurisdiction, no matter what the complaint alleges..." N.E. Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 n.7 (3d Cir. 2001). In the case sub judice, SEPTA raises a factual challenge to subject matter jurisdiction.
In deciding a factual challenge to subject matter jurisdiction, a court is "free to weigh the evidence and satisfy itself as to the existence of the power to hear the case....[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group, 227 F.3d at 69.
The Second Amended Complaint defines the Plaintiffs as follows: [at] different times within three years of their commencement of the litigation, each plaintiff has driven SEPTA swing runs in circumstances in which their total weekly work time routinely equaled or exceeded 40 hours. All plaintiffs routinely performed daily pre-trip inspections before morning and afternoon, though they were not paid for their afternoon inspections.
Second Amended Complaint at ¶ 6. The CBA defines a "swing run" as follows:
2) A swing run is a scheduled run which includes a single continuous period, in addition to any rest or meal period which may be scheduled in order to comply with any law or governmental requirement, between the scheduled starting time and the scheduled finishing time during which period no work is scheduled and any such period and any such rest period will not be included in the pay time for the run.
CBA at 39.(attached to Defendant's Motion to Dismiss Second Amended Complaint as Exhibit B).
Further insight into the regimen and compensation of a swing run bus driver is provided by the affidavit of Willie Brown, the current President of the Union. Brown avers, inter alia, that:
In the morning, the swing-run operator picks up his run at the dispatcher's window. The schedule associated with the run, which is posted in the depot, indicates his 'outbound p.m.' time, which is the time the driver's second half begins. It also represents the precise time swing operators go on the clock and start to accrue pay for working the second half. Thus, for example, if a swing run operator's 'outbound p.m.' time is 2 p.m., that driver is not on the clock until 2 p.m., the same time he his [sic] expected to leave the depot. With the operator not 'on the clock' until 2 p.m. and his bus required to leave the depot at the same time, he must perform the required pre-trip inspection 'off the clock,' prior to the start of his second half.
Operators assigned a swing run are not paid for the hours that elapse between their first and second halves, although they do receive a 'swing run allowance' for the inconvenience associated with working a split shift, an 'allowance' negotiated by the Local and included in the CTD contract with SEPTA since at least 1950 (decades before the advent of the pre-trip inspection).
Under Pennsylvania law, all SEPTA bus drivers are required to conduct a 'pre-trip' safety inspection before taking their vehicles into revenue service. SEPTA does not compensate operators for the time spent performing the required pre-trip inspection at the start of the operator's second half. Instead, operators perform pre-trip inspections 'off-the-clock' by reporting to work earlier than required. ...