Pearson v. Colt Oilfield Services, LLC et al

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

CORRECTED MOTION for Notice to Potential Plaintiffs & Conditional Certification re {{14}} MOTION for Notice to Potential Plaintiffs & Conditional Certification by James Adkins, Paul Duffala, Douglas Pearson.

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4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DOUGLAS PEARSON and JAMES ADKINS, individually and on behalf of all others similarly situated under 29 USC § 216(b), Plaintiff, Civil Action No. 5:18-cv-1029-OLG v. COLLECTIVE AND CLASS ACTION COMPLAINT COLT OILFIELD SERVICES, LLC, and ROY E. (EDDIE) AGUILAR, Defendant. PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION 4 I. OVERVIEW This is not a Rule 23 Motion for class certification; it is a motion brought pursuant to the Fair Labor Standards Act's ("FLSA") collective action provisions. 29 U.S.C. § 216(b). In contrast to Rule 23 class actions, collective actions are opt-in—not opt-out. Unsurprisingly, the standards applicable to obtain collective action notice—requiring a mere showing that substantially situated people exist—is drastically more lenient than the standard applied in Rule 23 certification. Plaintiffs sued Defendants to recover unpaid wages that Defendants failed to pay pursuant to the FLSA and their Second Amended Complaint alleges the following against Defendants: • Defendants employ non-supervisory "Operators" ("OPs") to provide the very service that they provide to the public—the delivery and operation of oilfield equipment at customer job sites ("Oilfield Work"). The Oilfield Work performed by OPs consists of loading, unloading, rigging up, rigging down, and operating oilfield equipment and tools at well sites to provide Defendants' services to Defendants' customers at job sites. • OPs routinely work over 40 hours per workweek, but do not receive overtime for their regular overtime work; Instead of paying OPs overtime for their regular overtime work, Defendants misclassify OPs as exempt from overtime, pay then a salary and deny them overtime pay for overtime worked ("OT Misclassification Policy" or "OTMP"). Plaintiffs support these allegations with sworn statements from three OPs employed by Defendants throughout the recoverable period concerning the OT Misclassification Policy. Exhibits D-F. These declarations corroborate that Defendants failed to compensate all OPs for actual hours worked and instead paid them on a salary basis without overtime—regardless of specific job title or region worked during their employment. Id. at ¶¶ 3-4. The companywide OTMP fails to pay OPs overtime despite OPs regularly working over 40 hours a week. Id. The early evidence establishes the similarity of OPs' job duties and the uniformity of the OTMP that applied to them all to deny overtime compensation. At this early stage, two (2) OPs have already self-selected as similarly situated and elected to join this suit, but OPs exist who may still be unaware of this suit or of their rights to proceed in this forum. Because Plaintiffs have shown similarly situated OPs exist, Notice is warranted to provide these Potential Plaintiff's Corrected Motion for Notice and Conditional Certification 1|Page 4 Plaintiffs with Notice of this suit. Notice to Potential Plaintiffs will allow a limited group of Defendants' current and OPs to make an informed decision on whether or not to participate in this case. Plaintiffs have attached proposed Notice and Consent forms to facilitate Notice to the Potential Plaintiffs. Exhibits A-B. Although Plaintiffs will establish Defendants' FLSA violations at trial, the merits of this case have no relevance here.1 Rather, the court should grant Notice because Plaintiffs have surpassed the "very lenient" standard for conditional certification that "typically results in certification for the purpose of notifying potential plaintiffs."2 Because recovery for Potential Plaintiffs erodes daily, the Court should authorize notice to these potential plaintiffs as soon as possible.3 II. FACTUAL BACKGROUND A. Plaintiffs Are Similarly Situated to Other Operators. The declarations demonstrate that a group of similarly situated OPs exist that Defendants subjected to the uniform OTMP that denied OPs overtime pay for hours worked in excess of 40 per workweek. Exhibits D-F. Defendants employ OPs to perform non-exempt Oilfield Work; classify OPs as exempt from overtime; and pay them on a salary basis without overtime compensation for hours worked over 40 hours per week. Id. ¶ 1-4. Defendants subjected all OPs paid on a salary basis to the OT Misclassification Policy. Id. ¶ 3-4. The declarations substantiate that Defendants subjected Plaintiffs and all OPs to the uniform OTMP that forms the basis of Plaintiffs live Complaint. Id. ¶ 1-5. B. Similarly Situated, Potential Opt-in Plaintiffs Exist 1 Landry v. Swire Oilfield Services, L.L.C., --- F. Supp. 3d ----, No. 16-621, 2017 WL 1709695, at *5 (D.N.M. May 2, 2017) ("At this stage, the Court "does not weigh the evidence, resolve factual disputes, or rule on the merits" of the plaintiffs' claims.") (quoting Greenstein v. Meredith Corp., 948 F.Supp.2d 1266, 1267 (D. Kan. 2013); Miller v. Startek USA, Inc., No. 11–cv–17, 2011 WL 1883012, at *2 (D. Colo. May 17, 2011) (finding that it would be "both legally erroneous and simply unfair to accept the invitation implicit in defendant's voluminous evidentiary submission to investigate further the potential efficacy of the allegations at this stage." and granting certification based on complaint's allegations and affidavits). 2 Bruback v. City of Albuquerque, No. 10-cv-1113, 2012 WL 12863340, at *3 (D.N.M. Feb. 6, 2012) ("This standard is a very lenient one and typically results in certification for the purpose of notifying potential plaintiffs.") (citing Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). 3 The FLSA statute of limitations runs from the date an individual opts into the case. Consequently, for former employees who are no longer being subjected to the illegal practice, every day without Notice is a day's pay they lose forever. Plaintiffs therefore request an expedited determination of this Motion. Abrams v. City of Albuquerque, No. 10-0872, 2013 WL 1136856, at *2 (D.N.M. Sept. 24, 2013) ("[T]he filing of a complaint does not stop the statute of limitations from running in a collective action; rather, it is only the filing of a consent to opt-in that stops the limitations period from expiring.") (citing Stransky v. HealthONE of Denver, Inc., 868 F. Supp. 2d 1178, 1180-81 (D. Colo. 2012). Plaintiff's Corrected Motion for Notice and Conditional Certification 2|Page 4 Plaintiffs would witness or discuss coworkers' job duties and pay arrangements during their employment and consequently acquired and possess knowledge that other OPs performed the same job duties under the same conditions as them. Id. ¶ 4. In fact, the declarants have identified other OPs by name that would be interested in participating in this case, have expressed such an interest, or are already doing so. Id. ¶ 5. Notice is warranted because Plaintiffs have exceeded the minimal showing required at this stage by demonstrating that (1) uniform job duties and pay provisions apply to all OPs; and (2) that similarly situated OPs exist. III. REQUEST FOR CONDITIONAL CERTIFICATION AND § 216(b) NOTICE Plaintiffs seek conditional certification and authorized notice to the following Potential Plaintiffs: All of Defendants' current and former non-supervisory Operators paid on a salary basis that worked more than 40 hours during one workweek over the past three years whose job duties include Oilfield Work or similar duties. This definition specifically includes, without limitation, such job titles as "Hydrostatic Operator," Operator Technician," "Torque and Test Hand," "Completions Operator," "Pump Operator," "Equipment Operator," and other non-supervisory positions who perform the same or similar job duties with the term "Hand" or "Operator" in the job title that Defendants subjected to the OT Misclassification Policy.4 A. The Law Favors Collective Actions and Authorizes the Court to Issue Notice to the Potential Opt-in Plaintiffs. FLSA plaintiffs may bring an action on behalf of all "other similarly situated employees."5 The FLSA's collective action mechanism serves an "important remedial purpose."6 Specifically, the law favors collective actions because they benefit the judicial system by enabling the "efficient resolution in one proceeding of common issues of law and fact," and providing the chance to "lower individual costs to 4 Deakin v. Magellan Health, Inc., No. 17-CV-0773-WJ-KK, 2018 WL 4854637, at *3 (D.N.M. Oct. 5, 2018) (granting conditional certification to Defendant's "non-supervisory employees who worked for Defendants in at least one workweek for over 40 hours in one workweek over the past three years; who received their pay on a salary basis; worked under a job title …containing the terms term[sic] "Care Coordinator" or "Care Manager"; and whose job duties included Care Management Work."); Olivas v. C & S Oilfield Servs., LLC, No. CIV 17-0022 JB\CG, 2018 WL 1997305, at *13 (D.N.M. Apr. 27, 2018) (granting conditional certification to all field personnel paid on a salary basis including, but not limited to, field hands, lead hands, water transfer technicians, crew leaders, laborers, crew members, tank hands, and team leaders."); Robinson v. RWLS, LLC, No. SA-16-CV- 201-OLG, 2017 WL 1536065, at *1 (W.D. Tex. Feb. 6, 2017) (granting conditional certification to "all field personnel, including but not limited to riggers, operators, engineers in training, and engineers, employed by Defendants from [three years prior to the date notice is issued] to the present who were paid on a salary-plus-job bonus basis."). 5 29 U.S.C. §216(b). 6 Gunn v. NPC Int'l, Inc., 625 Fed. Appx. 261, 263 (6th Cir.2015) (internal citation omitted). Plaintiff's Corrected Motion for Notice and Conditional Certification 3|Page 4 vindicate rights by the pooling of resources."7 Unlike plaintiffs in a Rule 23 class action, FLSA collective action plaintiffs must affirmatively opt-in to be covered by the suit.8 If an individual employee does not opt-in by filing a written consent, he or she will not be bound by the outcome—favorable or not—and may bring a subsequent private action.9 Because the substantial benefits of FLSA collective actions "depend on employees receiving accurate and timely Notice concerning the pendency of the collective action," the FLSA grants the Court authority to manage the process of joining such employees in the action, including the power to authorize Notice, and monitor preparation and distribution of the Notice.10 "Court authorization of Notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff date to expedite disposition of the action."11 The law empowers and encourages the Court to issue Notice to Potential Plaintiffs and the Court should do so here. B. The Two-Stage Certification Process This Court uses a two-stage approach to the certification issue.12 Once the Court makes the preliminary determination that Potential Plaintiffs are similarly situated, the case proceeds as a collective action throughout discovery.13 After conditional certification, discovery becomes relevant in regards to the merits of the case and the second step of the collective action procedure.14 At the second stage, the Court evaluates discovery-developed evidence to test the validity of its preliminary Notice-stage decision.15 7 Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 8 29 U.S.C. §216(b); Thiessen, 267 F.3d 1095, 1102 (10th Cir. 2001). 9 Equal Employment Opportunity Comm'n v. Pan Am World Airways, Inc, 897 F.2d 1499, 1508 n.11 (9th Cir. 1990). 10 Hoffmann-La Roche, 493 U.S. at 169-73 (1989) ("The broad remedial goal of the statute should be enforced to the full extent of its terms."); Saenz v. Rod's Production Servs., LLC, No., 2015 WL 12866985, at *1 ("Employees must receive "accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.") (quoting Hoffman, 493 U.S. at 170). 11 Id. at 172; Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 628 (D. Colo. 2002) (conditional certification appropriate where Plaintiffs made "substantial allegations" and conditional certification would allow "significant economies" to be achieved). 12 Townsend v. Cent. Pony Express, Inc., No. SA-17-CV-00552-OLG, 2018 WL 2432962, at *1 (W.D. Tex. Jan. 26, 2018) (citations omitted). 13 Lemmers v. Gary Pools, Inc., No. SA-15-CA-00828-OLG, 2016 WL 7508075, at *1 (W.D. Tex. May 24, 2016) (citation omitted). 14 Id. (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 14 (5th Cir. 1995)). 15 Id. Plaintiff's Corrected Motion for Notice and Conditional Certification 4|Page 4 Allowing early Notice and full participation by opt-ins "assures that the full 'similarly situated' decision is informed, efficiently reached, and conclusive."16 Upon completion of Notice and the Opt-In Period, the Court will benefit by knowing the actual makeup of the collective action.17 Early Notice will help this Court manage the case by enabling it to "ascertain the contours of the action at the outset."18 C. Plaintiffs Only Need to Provide A Minimal Showing That They Are Similarly Situated to Other Employees for the Court to Authorize Notice. 1. The Standard for Notice is a "Lenient" One. Because the first step takes place prior to completion of discovery, this Court has repeatedly recognized that the standard used is "fairly lenient, and typically results in conditional certification of a representative class."19 This lenient standard is applied because imposing a strict standard of proof at the Notice stage would unnecessarily hinder the development of collective actions and undermine the FLSA's "broad remedial goals."20 Only at the second stage—occurring at the close of discovery—does a Court make a "factual determination" as to whether the class members are similarly situated.21 The first stage's lenient standard "typically results in class certification," to which Notice is sent.22 2. Plaintiffs Need Only Make Substantial Allegations at the Notice Stage. At this first stage of the Notice process, a court requires "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan" to grant 16 Sperling v. Hoffmann-LaRoche Inc., 118 F.R.D. 392, 406 (D. N.J.), aff'd, 862 F.2d 439 (3d Cir. 1988), aff'd, 493 U.S. 165 (1989). 17 D'Antuono v. C & G of Groton, Inc., No. 3:11–cv–33, 2011 WL 5878045, at *5 (D. Conn. Nov. 23, 2011) ("As noted in another case, granting certification and issuing notice will have " the advantage of informing the original parties and the court of the number and identify of persons desiring to participate in this suit. With that information, analysis may be performed on the viability of the class and its representatives.") (quoting Villatoro v. Kim Son Restaurant, L.P., 286 F.Supp.2d 807 (S.D. Tex. 2003). 18 Hoffman-La Roche, 493 U.S. at 172-73. 19 Snead v. EOG Res., Inc., No. 5:16-CV-1134-OLG, 2017 WL 6294875, at *4 (W.D. Tex. Feb. 14, 2017); Brock v. Conquest Completion Servs., LLC, No. 5:16-CV-814-OLG, 2017 WL 7805753, at *2 (W.D. Tex. Feb. 7, 2017). 20 Garner v. G.D. Searle, 802 F. Supp. 418, 422 (M.D. Ala. 1991); Sperling, 118 F.R.D. at 407 ("[N]otice to absent class members need not await a conclusive finding of 'similar situations.'"). 21 Mooney, 54 F.3d at 1214. 22 Id. Plaintiff's Corrected Motion for Notice and Conditional Certification 5|Page 4 conditional certification.23 The record need only be "sufficiently developed. . . to allow court-facilitated Notice" based upon "substantial allegations"24 or "some factual support."25 The Amended Complaint alleges that Plaintiffs (1) performed job duties consisting of Oilfield Work; (2) were misclassified as exempt from overtime; (3) routinely worked over 40 hours per week, but (4) received pay on a salary basis without an overtime premium for their regular overtime work. ECF 9 at ¶¶ 4-5. The Complaint also alleges that other individuals performed similar work, but were not paid overtime. Id. at ¶¶ 5, 41. The sworn declarations from three (3) OPs substantiate the Complaint's allegations, further demonstrating that Plaintiffs performed similar duties under the same pay provisions as other OPs who have not received notice of this case. Exhibits D-F. Plaintiffs' allegations and sworn statements exceed the "minimal showing"26 required for the Court to authorize Notice. 3. Plaintiffs are "Similarly Situated" to Other OPs. Plaintiffs stand similarly situated to other OPs whose job duties include Oilfield Work or similar job duties.27 "To establish that employees are similarly situated, a Plaintiff must show that they are similarly situated with respect to their job requirements and with regard to their pay provisions. The positions need not be identical, but similar."28 23 Id. (quoting Sperling v. Hoffman–La Roche, Inc., 118 F.R.D. at 407). 24 Mooney, 54 F. 3d at 1214 n. 4) (quoting Sperling, 118 F.R.D. at 407). 25 Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL 1509570, at *3 (W.D. Tex. Mar. 31, 2015). 26 Landry v. Swire Oilfield Services, L.L.C., 252 F. Supp. 3d 1079 (D.N.M. May 2, 2017) ("Court of Appeals which have considered the meaning of 'similarly situated' have consistently concluded that the phrase requires a minimal showing.") (citing Myers v. Hertz Corp., 624 F. 3d 537, 555 (2d Cir. 2010). 27 Foster v. Nova Hardbanding, No. 15-1047, 2016 WL 4492829 (D.N.M. Apr. 20, 2016) (conditionally certifying class of inspection helpers, inspection operators, inspectors, and inspection supervisors after noting that that "although there may be some varionation in [job duties], it is sufficient tfor conditional certification if class members have similar positions."); Olivas v. C & S Oilfield Servs., LLC, No. CIV 17-0022, 2018 WL 1997305 (D.N.M. Apr. 27, 2018) (granting conditional certification to non-supervisory oilfield employees paid whose job duties included performing manual and technical labor to provide defendant's services to customers at job sites.)/ 28 Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 947 (M.D. Fla.1994); see also, Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991); Landry, 2017 WL 1709695, at *5 (D.N.M. May 2, 2017) ("[U]nder § 216(b), courts determine whether employees are similarly situated—not whether their positions are identical.") (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008); Townsend, 2018 WL 2432962 at *4 (quoting Contreras v. Land Restoration LLC, No. 1:16-CV- 883-RP, 2017 WL 663560, at *6-7 (W.D. Tex. Feb. 17, 2017); Plaintiff's Corrected Motion for Notice and Conditional Certification 6|Page 4 §216(b)'s "similarly situated" requirement is more elastic and less stringent than the requirements found in Rule 20 (joinder), Rule 42 (severance), or in Rule 23 (class actions).29 While evidence of a single decision, policy or plan will meet the similarly situated standard;30 such a showing is not required to satisfy the FLSA's more liberal "similarly situated" requirement.31 Accordingly, "[a] court may deny a Plaintiff's right to proceed collectively only if the action arises from circumstances purely personal to the Plaintiff, and not from any generally applicable rule, policy, or practice."32 Courts consider across-the-board decisions to treat a discrete category of employees as ineligible for overtime as sufficient to warrant conditional certification and Notice to all those performing similar work.33 The authority on this issue is consistent with the Supreme Court's pronouncement that Notice may be authorized under § 216(b) because "[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity."34 Plaintiffs have surpassed the minimal showing required to meet the lenient standard at this stage. As the evidence presented in the Factual Background section makes clear, Plaintiffs and Potential Plaintiffs (1) had primary job duties of performing Oilfield Work or similar job duties; and (2) Defendants subjected them to the same all to the same OT Misclassification Policy that paid them a salary with no overtime pay. Factual Background, §§ II A-C. The early evidence shows Defendant victimized the Plaintiffs and 29 Grayson v. Kaymart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996); Landry at *27 ("By adopting the "similarly situated" standard, as opposed to rule 23's standard, the Tenth Circuit has found that Congress chose to authorize collective actions under a less- stringent standard than rule 23 class actions.") (citing Thiessen, 267 F.3d at 1105). 30 Sperling, 118 F.R.D. at 407 31 See Sperling, 118 F.R.D. at 407; Grayson, 79 F.3d at 1096. 32 Whitworth v. Chiles Offshore Corp., No. 92-1504, 1992 WL 235907, *1 (E.D.La.1992) (citing Burt v. Manville Sales Corp., 116 F.R.D. 276, 277 (D. Colo. 1987) ("It remains for opt-in plaintiffs to show they are in fact similarly situated and fall within the parameters outlined below; however, at this stage, the facts pled are not purely personal to the plaintiffs before the Court."). 33 Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264 (11th Cir. 2008) ("There is nothing unfair about litigating a single corporate decision [to classify employees as exempt] in a single collective action…"); Patton v. Thompson Corporation, 364 F. Supp. 2d 263 (E.D.N.Y. 2005) (granting conditional certification because plaintiff was classified as exempt and all other employees with the same job title were also classified as exempt); Swartz v. D-J Engineering, Inc., No. 12-cv-1029, 2013 WL 5348585, at *6 (D. Kan. Sept. 24, 2013) ("Plaintiff has set forth "substantial allegations that the putative class members were together the victims of a single decision, policy or plan" to misclassify employees as exempt professional employees in order to deny them compensation for substantial overtime they were required to perform as part of their jobs. The court "requires nothing more.") (quoting Thiessen, 267 F. 3d at 1102) (other citations omitted). 34 Hoffmann-La Roche, 493 U.S. at 170. Plaintiff's Corrected Motion for Notice and Conditional Certification 7|Page 4 Potential Plaintiffs through its companywide OT Misclassification Policy that failed to pay OPs an overtime premium for their regular overtime work. Although not a statutory requirement, a factor some courts consider in assessing Notice is in whether similarly situated individuals exist who desire to opt-in to the lawsuit that should receive notice of their right to do so.35 The fact that two (2) OPs have elected to join this case since its inception—without the benefit of Notice—evidences this fact. Plaintiffs leave no doubt about the existence of additional OPs because they have identified additional OPs—by name—who performed similar job duties and that were also Defendants subjected to the OTMP that Plaintiffs believe would join this case if made aware of their right to do so through supervised Notice. Exhibits D-F at ¶ 5. Because Plaintiffs have demonstrated that similarly situated individuals exist that desire to join the suit (or would desire to join the suit upon receiving Notice), Plaintiffs have met their minimal burden to justify Notice to Potential Plaintiffs. IV. RELIEF SOUGHT: CONDITIONAL CERTIFICATION, ISSUANCE OF NOTICE TO POTENTIAL PLAINTIFFS, AND DISCLOSURE OF CONTACT INFORMATION The FLSA's collective action mechanism serves an "important remedial purpose."36 Collective actions specifically allow plaintiffs to "lower individuals rights by the pooling resources and the judicial system benefits through the efficient resolution … of common issues of law and fact"37 in one proceeding. While courts enjoy wide discretion in implementing notice, they should ensure that they exercise their discretion to further "the FLSA's broad remedial purpose by ensuring that as many potential plaintiffs as possible [are informed] of the collective action and their right to opt-in."38 Moreover, in "order for the FLSA to serve its remedial function, putative class members must actually become aware of their right to opt in."39 Determining "what constitutes fair and proper notice [is] based on the facts of each case."40 35 See Dybach, 942 F.2d at 1567-68. 36 Gunn, 625 Fed. Appx. at 263 (internal citation omitted). 37 Bayles v. American Medical Response of Colorado, Inc., 950 F. Supp. 1053, 1067 (D. Colo. 1996) (cites and quotes omitted). 38 Stuven v. Texas de Brazil (Tampa) Corp., No. 8:12–CV–1283, 2013 WL 610651, at *5–6 (M.D. Fla. Feb. 19, 2013) (emphasis added) (quoting Simmons v. Enterprise Holdings, Inc., No. 4:10-cv-00625 AGF, 2011 WL 1304732, at *1 (E.D. Mo. Apr.6, 2011). 39 Kidd v. Mathis Tire and Auto Serv., Inc., No. 2:14–cv–02298, 2014 WL 4923004, at *2-3 (W.D. Tenn. Sept. 18, 2014) (rejecting defendant's argument the reminder notice would encourage individuals to join lawsuit and granting request to send reminder notice because it "function[ed] primarily to inform putative class members of their rights). Plaintiff's Corrected Motion for Notice and Conditional Certification 8|Page 4 Plaintiffs seek approval of the attached Notice (Exhibit A) and Consent Form (Exhibit B), which this District has authorized for Notice in other cases, to be submitted by those who wish to participate in this case. Plaintiffs also seek an Order (1) setting a sixty-day opt-in period from the date Notice is mailed; (2) requiring Defendants to disclose the names, job title, start and end dates of employment, last known addresses, e-mail addresses, and telephone numbers of the Potential Plaintiffs (in useable in useable electronic form to reduce any delay in sending out notices) within three (3) days of the Order; and (2) authorizing Plaintiffs to send the Notice and Consent Forms by mail, email and text message.41 Plaintiffs seek notice by text message and email, in part, because Plaintiffs—like all of us— routinely receive junk mail and do not typically read or open mail unless they are expecting it. Exhibits D- F at ¶ 5.42 Plaintiffs state that if they did not know anything about the case, "they would be far more likely to receive and read a notice that was either emailed or texted to me." Id. As recently explained by the District of New Mexico in granting Notice by email and text message for similar reasons: The Court finds persuasive the Plaintiffs' argument that communication via email and text message will "increase the chance of the class members receiving and reading the notice…." Acknowledging its efficacy and common usage, courts increasingly have authorized notice by email in FLSA cases…, Courts similarly have authorized notice by text message, observing that such notice "is likely to be a viable and efficient means of communicating with many prospective members of [a] collective action." Indeed, given the amount of junk mail that people receive, email and text message likely are more effective methods for communicating with potential class members than traditional, first-class mail.6 The Court agrees with this reasoning and authorizes the Plaintiffs, within seven days of receiving the class list from Swire Oil, to provide notice to potential opt-in Plaintiffs via regular mail, email, and text message. The Plaintiffs' counsel may oversee notice implementation and may hire a third-party class action administration company to conduct the actual mailing if it desires.43 40 Stuven, 2013 WL 610651, at *6 (quoting Simmons, 2011 WL 1304732, at *1). 41 Dempsey v. Jason's Premier Pumping Services, LLC, No. 1:15-cv-703, (D. Colo Nov. 11, 2015) (granting notice via text, email, and mail); Foster v. Nova Hardbanding, No. 15-1047, 2016 WL 4492829, at *2 (D.N.M. Apr. 20, 2016) (same); Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14 Civ. 2625 (RJS), 2015 WL 4240985, at *5 (S.D.N.Y. July 13, 2015) (same) Eley v. Stadium Grp., LLC, Civil Action No. 14–cv–1594 (KBJ), 2015 WL 5611331, at *4 (D.D.C. Sept. 22, 2015) (same); Lynch v. Dining Concept Group, LLC, Inc., No. 2:15-cv-580, 2015 WL 5916212 (D.S.C Oct. 18, 2015); Grady v. Alpine Auto Recovery, No. 15-cv-00377, 2015 WL 3902774, *2 (D. Colo. June 24, 2015) (granting email and text notice). 42 "In the Court's experience, few if any persons who receive notice of a [collective] action opt [in]; though one could argue that this is because the vast majority of notice recipients make an affirmative decision to [not join] the case, it is just as likely that the tiny number of opt [ins] occurs because recipients ignore the notice (believing it to be "junk mail") or once seeing it, do not bother to read it." Muecke v. A Reliable Auto Parts & Wreckers, Inc, 2002 WL 1359411 (N.D. Ill., June 21, 2002). 43 Landry v. Swire Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079, 1129–30 (D.N.M. 2017) (citations omitted). Plaintiff's Corrected Motion for Notice and Conditional Certification 9|Page 4 Granting notice by text message would also benefit the many OPs who have moved since their last day of employment with Defendant. As provided by the Pew Research Institute, approximately 36 million Americans move each year and often take their cell phone numbers with them. In fact, 10% of U.S. adults have cell phone numbers that don't match the state they live in and 40% of urban dwellers have a numbers that doesn't match the city where they live.44 This phenomenon has led courts to determine that "email address and telephone numbers serve as the most reliable method of communication," because "traditional methods of communication via email and land line telephone have quickly become obsolete."45 As recently observed by the Southern District of Texas, the need for alternative methods of communication—including text messages or reminder phone calls-—to ensure proper notice is particularly acute in cases involving former oilfield workers because of the unreliability of employer-provided contact information for former oilfield employees.46 Such need is exacerbated in this case. This is because the oilfield workers here have informed the Court that they and their fellow OPs (1) "often work in remote locations far away from home for extended periods of time" and (2) "rely heavily on [their] cell phones for both personal and professional communications. Id. ¶ 6-7. These are the exact circumstances where notice by text message is appropriate.47 The Court should accordingly grant notice by U.S. mail, email and text to "fall in line with what has been approved in other FLSA collective actions,"48 and because such notice would serve as a "viable and efficient means of notifying many prospective class members of this action."49 44 http://www.pewresearch.org/2016/08/01/moving-without-changing-your-cellphone-number-a-predicament-for-pollsters/. 45 Irvine v. Destination Wild Dunes Mgmt., Inc., 132 F.Supp.3d 707, 711 (D.S.C. 2015). 46 Jaso v. Bulldog Connection Specialists LLC, No. 2:15-CV-269, 2015 WL 11144603, at *6 (S.D. Tex. Oct. 15, 2015) (approving cntact by telephone to ensure previous employees received notice). 47 Landry, 252 F. Supp. at 1130 (finding mail, email, text, and reminder notice to "serve the FLSA's remedial purpose in this case, especially in light of the potential Plaintiffs' remote locations at well sites across the country."). 48 Vega v. Point Security, LLC, No. 17-cv-49, 2017 WL 4023289 (W.D. Tex. Sept. 13, 2017); Escobar v. Ramelli Group, L.L.C., No. 16-15848, 2017 WL 3024741 (E.D. La. July 17, 2017); Dearmond v. Alliance Energy Servs., No. 17-2222, 2017 WL 3173553 (E.D. La. July 25, 2017); Owens v. GLH Capital Enterprise, Inc., No. 3:16-cv-1109, 2017 WL 2985600 (S.D. Ill. July 13, 2017); Desio v. Russell Road Food & Beverage, No. 2:15-cv-1440, 2017 WL 4349220 (D. Nev. Sept. 29, 2017); Cabrera v. Stephens, No. 16-cv-3234, 2017 WL 4326511 (E.D.N.Y. Sept. 28, 2017); Eley v. Stadium Grp., LLC, No. 14–cv–1594 (KBJ), 2015 WL 5611331, at *4 (D.D.C. Sept. 22, 2015) (citing Bhumithanarn, 2015 WL 4240985, at *5); Dempsey v. Jason's Premier Pumping Services, LLC, No. 1:15- cv-703, 2015 WL 13121134, at *2 (D. Colo. Nov. 11, 2015); Regan v. City of Hanahan, 2017 WL 1386334, 2:16-cv-1077, at *3 (D.S.C. Apr. 17, 2017); Martin v. Sprint/united Mgmt. Co., No. 15–CV–5237, 2016 WL 30334, at *19 (S.D.N.Y. Jan. 4, 2016); Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-cv-2625, 2015 WL 4240985, at *5 (S.D.N.Y. July 13, 2015); Vasto v. Credico (USA) LLC, 2016 WL 2658172 (S.D.N.Y. May 5, 2016) (same); Lynch v. Dining Concept Group, LLC, Inc., No. 2:15-cv-580, 2015 WL Plaintiff's Corrected Motion for Notice and Conditional Certification 10 | P a g e 4 V. CONCLUSION Plaintiffs have presented detailed allegations and sworn statements concerning their work with Defendants that identifies an improper scheme that deprived other individuals of overtime pay who perform the same job duties under the same pay plan as Plaintiffs. Because Plaintiffs have met their burden of showing that similarly situated individuals exist that have not been notified about the present suit, the Court should enforce the collective action provisions of the FLSA and grant Plaintiffs' Motion for Notice and Conditional Certification. Respectfully submitted, /s/ Jack Siegel JACK SIEGEL Texas Bar No. 24070621 Siegel Law Group PLLC 2820 McKinnon Dallas, Texas 75201 (214) 706-0834 phone (469) 339-0204 fax www.siegellawgroup.biz ATTORNEYS FOR PLAINTIFFS Certificate of Conference Plaintiff's counsel attempted to confer with Defense Counsel Kyle Watson to determine if Defendant was opposed or unopposed to the relief requested in this motion and noted that filing the motion was an urgent matter because the potential plaintiffs' claims "die daily"50 until the statute of limitations is tolled by filing consent forms. Plaintiff also provided Defendants with over five similar oil and gas cases for Defendants to make their assessment along with a proposed stipulation for notice in the event that Defendant desire to avoid unnecessary work and expense in contesting conditional certification in this run-of-mill FLSA case involving a group of oilfield workers. Mr. Watson informed Plaintiff on December 5, 2018 that he would be unable to provide Defendants' stance regarding conditional certification because of a family matter. 5916212 (D.S.C Oct. 18, 2015); McGarry v. Chemix Energy Servs., LLC, No. 2:15-cv-496 (S.D. Tex. July 19, 2016) Spallone v. Soho University, Inc., No. 4:15-cv-1622 (D.S.C. Feb. 9, 2016); Chamorro v. Bahman Ghermezian, No. 12-cv-8159 (TPG), ECF No. 17 ¶ 5 (S.D.N.Y. Feb. 25, 2013). 49 Avendano v. Averus, Inc. et al., No. 14-cv-01614, ECF 99 (D. Colo Oct. 26, 2016) ("Given … Plaintiff's assertion that text messaging is the most reliable form of communication, the Court finds that notification by text message is likely to be a viable and efficient means of notifying many prospective members of this collective action."). 50 Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997) (Sotomayor, J.) (Supreme Court Justice Sotomayor acknowledging that the claims of potential plaintiffs "die daily" until they toll statute by opting into FLSA lawsuit). Plaintiff's Corrected Motion for Notice and Conditional Certification 11 | P a g e 4 On December 7, 2018, Melissa Fletcher Morales, who Defendant recently retained as co-counsel in this matter, indicated that Defendant was still reviewing this matter and "gathering facts to make [a] determination" regarding whether to stipulate to notice. She informed Plaintiff's counsel that she would need another week in order to gather information needed to rely her client's position on the matter. Plaintiffs' counsel has conferred with defense counsel. Defense counsel and Plaintiffs' counsel agreed that filing this Amended Motion was necessary to accurately reflect the communications between parties. Plaintiffs also felt it necessary to file this Motion as a result of their decision to agree to the dismissal of Defendant Total Tank Systems, LLC on December 8, 2018. ECF 15. Defendant has not indicated whether it will consent to notice, but has provided that it will provide an indication over the next week. Accordingly, the parties will notify the Court about whether Defendant will stipulate to the relief requested by this Motion within the next week. . /s/ Jack Siegel Jack Siegel Certificate of Service I hereby certify that on December 9, 2018, the foregoing document was filed electronically through the Court's CM/ECF system in compliance with Local Rules. /s/ Jack Siegel Jack Siegel Plaintiff's Corrected Motion for Notice and Conditional Certification 12 | P a g e 4 Plaintiff's Corrected Motion for Notice and Conditional Certification 13 | P a g e