Pearson v. Colt Oilfield Services, LLC et al

Western District of Texas, txwd-5:2018-cv-01029

AMENDED COMPLAINT against Roy E Aguilar, Colt Oilfield Services, LLC, Total Tank Systems, LLC amending, filed by Douglas Pearson, James Adkins.

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2 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DOUGLAS PEARSON, JAMES ADKINS, and on all others similarly situated, Case No. 5:18-CV-1029-OLG Plaintiffs, v. COLT OILFIELD SERVICES, LLC, TOTAL TANK, and ROY E. (EDDIE) AGUILAR, Defendants. FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT Plaintiffs Douglas Pearson and James Adkins bring this action individually, on behalf of those similarly situated, and on behalf of the proposed NM Class Members (defined below), and in support shows the Court the following: I. SUMMARY 1. This is an opt-in collective action brought pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq, ("FLSA") and an opt-out class action brought pursuant to the New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-22(D) ("NMMWA") and Federal Rule of Civil Procedure 23. 2. Defendants' business consists of providing their customers with the delivery and operation of oilfield equipment at customer well sites in Texas, New Mexico and other oil-producing regions throughout the United States. 3. Defendants employed Plaintiffs, the below-defined FLSA Class Members and the below-defined NM Class Members as non-supervisory "Operators" to provide the very service that Defendants offer to the public—the delivery and operation of Defendant's oilfield equipment to customers at job sites. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 1 2 4. Operators' primary job duties consist of loading, unloading, rigging up, rigging down, and operating oilfield equipment and tools at well sites to provide oilfield services to Defendant's customers at well-sites ("Oilfield Work"). 5. Defendant misclassified Operators as exempt from overtime, paid them on a salary basis and refused to pay them overtime despite regularly working over 40 hours per workweek ("OT Misclassification Policy"). 6. Because Defendant violated the NMMWA as part of a "continuing course of conduct," this lawsuit should encompass all violations that occurred as a result of that "continuing course of conduct regardless of the date on which the occurred." N.M. Stat. Ann. § 50–5–32. II. PARTIES 3. Plaintiffs incorporate by reference all allegations previously made in this Complaint. 4. Plaintiff Douglas Pearson ("Pearson") is a Louisiana citizen who worked for Defendant as an Operator within the last three years. Defendant referred to Plaintiff Douglas Pearson's job title in multiple ways, including referring to his job title as "Operator" and "Field Operator" during his employment 5. Plaintiff James Adkins ("Adkins") is a Louisiana resident who worked for Defendant within the last three years and worked over 40 hours in New Mexico during one or more workweeks during that time period. Defendant referred to Plaintiff James Adkins job title in multiple, including referring to his job title as "Operator," "Field Operator," "Hydrostatic Operator," and "Completions Operator" during his employment. 6. The similarly situated "FLSA Class Members" consist of Defendants' current and former Operators (1) paid on a salary basis (2) whose job duties included Oilfield Work or similar job duties (3) who worked over 40 hours in at least one workweek over the past three years without receiving overtime pay. The FLSA Class Members include, without limitation, such job titles as FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 2 2 "Hydrostatic Operator," "Operator Technician," "Torque and Test Hand", "Completions Operator," "Pump Operator," "Equipment Operator," "Fluid Engineer," "Chemical Plant Operator," "Mixing Plant Operator" and other job titles performing Oilfield Work that have the term "Operator" or "Hand" included within the job title that Defendant paid on a salary basis without overtime. 7. Plaintiff Adkins also brings this action as Rule 23 class action on behalf of the FLSA Class Members who worked for Defendants in New Mexico in at least one workweek over 40 hours since the time Defendant began paying Operators pursuant to the Overtime Misclassification Policy. 8. Defendant Colt Oilfield Services, LLC ("COS") is a Texas limited liability company with its principal place of business located at 17115 San Pedro Avenue, Suite 320, San Antonio, Texas 78232 that does business throughout the United States, including New Mexico and Texas. Colt may be served by serving its registered agent for service of process Roy Aguilar at 15406 Northwest Blvd., Robstown, Texas 78380 or wherever he may be found. 9. Total Tank Systems, LLC ("TTS") is a Texas Limited Liability Company with its principal place of business located at 17115 San Pedro Avenue, Suite 320, San Antonio, Texas 78232 that does business throughout the United States, including New Mexico and Texas. Total Tank may be served through its registered agent for service of process Roy Aguilar at 1045 N. Central Parkway, Suite 102, San Antonio, Texas 78232 or wherever he may be found. 10. Roy Aguilar is the Chief Executive Officer, owner and managing member of COS and TTS. Roy Aguilar may be served by service upon him at his residence at 2435 Winding View, San Antonio, Texas 78260, at his place of business at 17115 San Pedro Ave., Suite 320, San Antonio, Texas 78232, or wherever he may be found. III. JURISDICTION AND VENUE 11. This Court has jurisdiction over Plaintiffs' FLSA claim because that claim arises under federal law pursuant to 29 U.S.C. § 216(b) and pursuant to 28 U.S.C. § 1331. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 3 2 12. This Court has subject matter jurisdiction over the state law claims pursuant to 28 U.S.C. § 1332(d) because this is a class action with an amount in controversy of over $5,000,000.00 exclusive of interest and costs, and at least one NM Class Member is a citizen from a different state than Defendants. Alternatively, the Court has supplemental jurisdiction pursuant to 28 U.S.C § 1367. 13. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because the events forming the basis of the suit occurred in this District and because one or more of the Parties resides in this District. IV. COVERAGE 14. At all times hereinafter mentioned, Defendants have acted, directly or indirectly, in the interest of an employer or joint employer with respect to Plaintiffs and the respective Class Members. 15. At all times hereinafter mentioned, Defendants have been an employers or joint employers within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d) and the NMMWA. 16. At all times hereinafter mentioned, Defendants have been an enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 17. At all times hereinafter mentioned, Defendants have been an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). Plaintiff and the Class Members specifically handled materials, including oilfield equipment and tools to perform the manual and technical labor necessary to provide Defendant's oilfield services and product to customers at well sites. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 4 2 18. At all times hereinafter mentioned, Plaintiffs and the respective Class Members were individual employees who were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. § 203(e)(1). V. FACTUAL ALLEGATIONS 19. Plaintiffs incorporate by reference all allegations previously made in this Complaint. 20. Defendants have had business operations throughout the United States, including in New Mexico and this Judicial District, throughout the last three years. Their annual gross volume of sales made and business done exceeded $500,000.00 per year at all relevant times. 21. Roy Aguilar is the owner, manager, and managing member of COS and TTS (collectively, "Corporate Defendants"). Roy Aguilar has joint employer liability based on his exertion of operational control over the Corporate Defendants. The operational control he exerted and continues to exert includes making hiring and firing decisions, establishing pay rates, determining methods of payment and compensation policies and practices, and controlling/establishing company rules for the Corporate Defendants. Additionally, Roy Aguilar has responsibility for the specific FLSA and NMMWA violations at issue. Specifically, the Roy Aguilar: (1) implemented and enforced the Overtime Misclassification Policy; (2) instructed Plaintiff and the Class Members that they did not have to clock-in when they reported for work; (3) failed to keep proper employment records for Plaintiff and the Class Members; and (4) failed to keep any proper time records for the hours worked by Plaintiff and the Class Members during their employment. 22. The Corporate Defendants share a single mailing address and principal place of business located at 17115 San Pedro Avenue, Suite 320, San Antonio, Texas 78232. Roy Aguilar serves both in a managerial and ownership capacity for both COS and TTS. The Corporate Defendants are both in the business of providing oilfield services and products to customers at jobsites. Accordingly, the Corporate Defendants engage in related activities that are performed for a common business FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 5 2 purpose under common control in a unified operation to sell the oilfield services—more specifically the delivery and operation of oilfield equipment to well sites—to its customers for profit. 23. Plaintiff Pearson worked for Defendants as an Operator from approximately October 2016 to July 2018. 24. Plaintiff Adkins worked for Defendants as an Operator from approximately April 2017 and May 2018. 25. As Operators, Plaintiffs' primary duties included Oilfield Work, including loading, unloading, rigging up, rigging down, and operating oilfield equipment and tools at well sites to provide oilfield services to Defendant's customers at well-sites ("Oilfield Work"). 26. As Operators, Plaintiffs delivered and set up oilfield equipment to customers at well sites. 27. As Operators, Plaintiffs operated the same oilfield equipment and tools that they delivered and set up for Defendant's customers at well sites. 28. As Operators, Plaintiffs performed the manual and technical labor to provide the very services that Defendant offers—the delivery and operation of oilfield equipment at customer well sites. 29. Plaintiffs' job duties did not involve the performance of quality control work, but instead involved the delivery and operation of oilfield equipment to customers at job sites. 30. Plaintiffs' job duties did not include performing safety or health functions or providing general oversight of the safety and health of Defendants or Defendants' customers' employees. 31. Plaintiffs were not responsible for Defendant or Defendant's customers legal compliance with OSHA or any other safety regulations. 32. Plaintiffs' job duties did not involve the comparison of evaluation of possible courses of conduct, or making decisions after the various possibilities had been considered. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 6 2 33. Plaintiffs' job duties involved the use of well-established techniques, procedures, and/or specific standards. 34. Plaintiffs routinely worked over 40 hours per week during their employment. 35. Defendants did not pay Plaintiffs overtime pay for all hours worked over 40 hours per workweek. 36. Instead of providing Plaintiffs with overtime pay, Defendants paid Plaintiffs pursuant to the Overtime Misclassification Policy that classified them as exempt and paid them a salary with no overtime pay for their many hours of overtime work. 37. Defendants knew that Plaintiffs worked in excess of 40 hours per week. 38. Plaintiffs are entitled to receive overtime pay for all the hours they worked in excess of 40 per workweek. 39. Defendants willfully misclassified Plaintiffs as exempt and refused to pay them overtime pay, despite (1) having awareness of the FLSA's minimum wage and overtime requirements; (2) routinely receiving complaints from Plaintiff and the respective Class Members regarding their pay and not being paid for overtime hours; and (3) paying workers who performed substantially similar, nonexempt duties on an hourly/overtime eligible basis, but choosing not to pay Plaintiffs overtime. VI. COLLECTIVE AND CLASS ALLEGATIONS 40. Plaintiffs bring their FLSA claim as a collective action under 29 U.S.C. § 216(b), and her New Mexico Wage Law Claims as a class action under Federal Rule of Civil Procedure 23. The Plaintiffs have already filed their Consents to Participate in this action with the Court. 41. The similarly situated "FLSA Class Members" consist of Defendants' current and former Operators (1) paid on a salary basis (2) whose job duties included Oilfield Work or similar job duties (3) who worked over 40 hours in at least one workweek over the past three years without receiving overtime pay. The FLSA Class Members include, without limitation, such job titles as FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 7 2 "Hydrostatic Operator," "Operator Technician," "Torque and Test Hand", "Completions Operator," "Pump Operator," "Equipment Operator," "Fluid Engineer," "Chemical Plant Operator," "Mixing Plant Operator" and other job titles performing Oilfield Work that have the term "Operator" or "Hand" included within the job title that Defendant paid on a salary basis without overtime. 42. Plaintiff Adkins brings his class action on behalf of the respective NM Class Members, which is maintainable under subsections (1), (2), (3) and (4) of Rule 23(a). 43. The NM Class Members are so numerous that their joinder is impracticable. While the precise number of the NM Class Members is unknown, at least 50 NM Class Members have worked at least one workweek of more than 40 hours in New Mexico over the past three years. 44. Common questions of law and fact for the NM Class Members predominate over any questions affecting any individual member, including: (1) whether Defendants violated NM Wage Law by failing to pay the NM Class Members overtime compensation for all hours worked in excess of forty in an individual workweek; (2) the proper measure of damages sustained by the NM Class Members; and (3) whether Defendants should be enjoined for such violations in the future. 45. Plaintiff Adkins' claims are typical of those of the NM Class Members. Plaintiff and the NM Class Members (1) had the same primary job duties; (2) were classified as exempt from overtime; (3) worked overtime in New Mexico in at least one workweek in the respective statutory periods; and (4) were denied overtime at a rate of one-and-one half times their regular rates of pay for all overtime hours worked in New Mexico. 46. Plaintiff Adkins will fairly and adequately protect the NM Class Members' interests and has retained counsel experienced in complex wage and hour class action litigation. 47. The class action is maintainable under subsection (1) of Rule 23(b) because prosecuting separate actions by individual class members across the jurisdictions in which Defendants FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 8 2 does business would create the risk of inconsistent adjudications, resulting in incompatible standards of conduct for Defendants. 48. This class action is maintainable under subsection (2) of Rule 23(b) because Defendants acted or refused to act on grounds generally applicable to the NM Class Members, making final injunctive and/or declaratory relief appropriate to the NM Class Members as a whole. 49. The class action is maintainable under subsection (3) of Rule 23(b) because common questions of law and fact predominate among the class members and because the class action is superior to other available methods for the fair and efficient adjudication of the controversy. 50. Class litigation is also superior because it will preclude the need for unduly duplicative litigation resulting in inconsistent judgments pertaining to Defendants' policies and practices. No apparent difficulties exist in managing this class action. Plaintiff intends to send notice to the proposed NM Class Members to the extent required by Fed. R. Civ. 23(c). 51. The class action is also maintainable under subsection (4) of Rule 23(b) with respect to particular legal and factual issues raised in this litigation. VII. COUNT ONE: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARDS ACT 52. Plaintiff incorporates all allegations previously made in this Complaint. 53. During the relevant period, Defendants violated and continue to violate Section 7 of the FLSA, 29 U.S.C. §§ 207, and 215(a)(2) by employing Plaintiff and other FLSA Class Members in an enterprise engaged in commerce or in the production of goods for commerce for workweeks longer than 40 hours without compensating such employees for their work in excess of forty hours per week at rates no less than one-and-a-half times the regular rates for which they were employed. 54. Defendants acted willfully in failing to pay Plaintiff and the FLSA Class Members in accordance with the law. VIII. COUNT TWO: VIOLATION OF THE NEW MEXICO WAGE LAW FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 9 2 55. Plaintiffs incorporate all allegations previously made in this Complaint. 56. Plaintiff Adkins and the NM Class Members are entitled to unpaid overtime in an amount equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek pursuant to the formula outlined in N.M. Stat. Ann. § 50-4-22(D). 57. During the relevant time period, Defendants violated and continue to violate NM Wage Law by employing employees and regularly and repeatedly failing to pay employees for all hours worked and pay overtime wages at a rate of at least one-and-a-half times their regular rates of pay. 58. As a direct and proximate result of Defendants' unlawful conduct, Plaintiff Adkins and the NM Class Members have suffered and will continue to suffer from a loss of income and other damages. 59. Plaintiff Adkins and the NM Class Members are entitled to their unpaid wages, plus an amount equal to twice their unpaid wages, prejudgment interest, all costs in bringing this action, and all attorneys' fees accrued that are recoverable under New Mexico Law. 60. Pursuant to N.M. Stat. Ann. 50-4-32, Plaintiff Adkins and the NM Class Members are entitled to recover for all violations that occurred as part of Defendants continued course of conduct regardless of the date on which they occurred. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 10 2 51. Plaintiffs, individually and on behalf of the respective Class Members, pray for judgment against Defendants, jointly and severally, as follows: a. For an order preliminarily and permanently restraining Defendants from engaging in the aforementioned pay violations; b. For an Order pursuant to Section 16(b) of the FLSA finding Defendants liable for unpaid back wages due to Plaintiff (and those who may join in the suit) and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiff (and those who may join the suit); c. For an Order awarding Plaintiffs (and those who may be included in the suit) the costs of this action; d. For an Order awarding Plaintiffs (and those who may be included in the suit) attorneys' fees; e. For an Order awarding Plaintiffs (and those who may be included in the suit) pre-judgment and post-judgment interest at the highest rates allowed by law; f. For an Order certifying the NM Wage Law claims as a Class Action pursuant to Fed. R. Civ. P. 23, for designation of Plaintiff Adkins as Class Representative under applicable NM law, and for designation of Plaintiff's counsel as class counsel; g. For an Order awarding Plaintiff Adkins and the NM Class Members damages pursuant to N.M. Stat. Ann. 50-4-26; h. For an Order awarding Plaintiff Adkins and the NM Class Members damages for all violations, regardless of the date on which they occurred, as a result of Defendants' continued course of conduct pursuant to N.M. Stat. Ann. 50-4- 32; i. For an award of attorneys' fees, expenses, expert fees and costs incurred by plaintiffs in vindicating their rights under applicable federal and state law; j. For a service payment to the Plaintiffs for services provided on behalf of the class and collective; k. For an award of pre- and post- judgment interest; and l. For such other and further legal or equitable relief as this Court deems to be just and appropriate. FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 11 2 Respectfully submitted, /s/ Jack Siegel JACK SIEGEL Texas Bar No. 24070621 Siegel Law Group PLLC 2820 McKinnon, Suite 5009 Dallas, Texas 75201 P: 214.790.4454 E: Jack@siegellawgroup.biz www.4overtimelawyer.com ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE Service of this Complaint will be made on Defendants with the summons and Original Complaint in accordance with the Federal Rules of Civil Procedure. /s/ Jack Siegel Jack Siegel FIRST AMENDED CLASS & COLLECTIVE ACTION COMPLAINT Page - 12