Pearson v. Colt Oilfield Services, LLC et al

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

Proposed Order

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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. COLT OILFIELD SERVICES, LLC, TOTAL TANK SYSTEMS, LLC, and ROY E. (EDDIE) AGUILAR, Defendant. [PROPOSED] ORDER The Court has reviewed Plaintiff's Corrected Motion for Notice to Potential Plaintiffs and for Conditional Certification and believes that it should be and is hereby GRANTED. Accordingly, Defendants are ORDERED to produce the names, last known email addresses, phone numbers, and addresses (collectively, "Employee Information") for the following ground of FLSA Class Members: 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.1 1 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 ORDER GRANTING PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION Defendants shall provide the Employee Information in an electronic form that can be used by Plaintiff in mailing out the Court-approved Notice. If the information is not stored electronically, Defendants shall provide it in written form. The Employee Information must be provided within seven days of the entry of this Order. If Defendants fail to provide the Employee Information within seven days of the date this Order is signed, the statute of limitations is tolled for each day after the seventh day that Defendant fails to provide the Employee Information. The Court authorizes that the "Notice" (Exhibit A), which may be immediately issued to the Class Members in accordance with the below-provided procedure. Plaintiff shall enclose the "Consent Form" (Exhibit B) with a self-addressed, postage paid return envelope for U.S. postal mailing. The Notice and Consent Forms shall be sent by first class mail, overnight delivery or electronically at Plaintiff's attorney's cost. Plaintiff may send the Notice electronically by utilizing the following language by text message and email: "Colt Oilfield Services records show that you provided services to Colt and may be eligible to join this lawsuit. Click below for more information." The text and email messages shall contain a link to electronic versions of the Notice and Consent Form.2 The Potential Plaintiffs shall be provided sixty (60) days after the date the Notice and 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."). 2 Vega v. Point Sec., LLC, No. A-17-CV-049-LY, 2017 WL 4023289, at *5 (W.D. Tex. Sept. 13, 2017) ("[I]n the world of 2017, email and cell phone numbers are a stable, if not primary, point of contact for the majority of the U.S. population, and thus that using email and texts to notify potential class members is entirely appropriate."); Hobbs v. Cable Mktg. & Installation of Louisiana, Inc., 290 F. Supp. 3d 589, 598 (E.D. La. 2018) (requiring plaintiffs to submit proposed text message for purposes of notifying class members of FLSA collective action); Dearmond v. Alliance Energy Servs., No. 17-2222, 2017 WL 3173553 (E.D. La. July 25, 2017) (noting that "Courts have approved text message "because it facilitates notice to class members who may have changed addresses before the opt-in period) (citing Mahrous v. LKM Enterprises, LLC, No. CV 16-10141, 2017 WL 2730886, at *4 (E.D. La. June 26, 2017) (ordering notice by text message and observing that multiple "Courts in this District have ordered telephone numbers in similar cases)); Dearmond v. All. Energy Servs., LLC, No. CV 17-2222, 2017 WL 3173553, at *3 (E.D. La. July 26, 2017) (approving notice by text message including link to notice and consent forms for lawsuit); Escobar v. Ramelli Grp., L.L.C., No. CV 16- ORDER GRANTING PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION Consent are initially mailed to file a Consent form opting-in to this litigation. A Consent postmarked on the deadline is considered timely. Consents received by mail without postmarks shall be considered timely if received within four (4) business days of the deadline. Plaintiff shall provide the Court and opposing counsel with a notice indicating the date on which the Notice forms were initially mailed so the Court and the Parties are advised of the beginning of the opt-in period. Plaintiffs' counsel shall date stamp the returned consents on the day they are received in counsel's office and retain any envelope or other evidence showing the date the Consent Form was postmarked, fax-stamped, or received. Within 10 days after the close of the Opt-In Period, Plaintiff's counsel will file the consent forms for the Opt-In Plaintiffs, noting the received date for each individual on the Notice of Filing. The received date will constitute the date the consents forms will be considered filed with the Court for statute of limitations purposes. 15848, 2017 WL 3024741, at *3 (E.D. La. July 17, 2017) (approving notice by text message and providing that courts have "approved of the use of text message because it facilitates notice to class members who may have changed addresses before the opt-in period); Avendano v. Averus, Inc., 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."); Landry v. Swire Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079, 1129–30 (D.N.M. 2017) ("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. 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."); Escobar v. Ramelli Group, L.L.C., No. 16-15848, 2017 WL 3024741 (E.D. La. July 17, 2017) (approving notice via mail, text, and email); Owens v. GLH Capital Enterprise, Inc., No. 3:16-cv-1109, 2017 WL 2985600 (S.D. Ill. July 13, 2017) (same); Martin v. Sprint/United Mgmt. Co., No. 15– CV–5237, 2016 WL 30334, at *19 (S.D.N.Y. Jan. 4, 2016) (same); 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 5916212 (D.S.C Oct. 18, 2015); 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); 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). ORDER GRANTING PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION Signed this _____ day of _____________________, 2018. _______________________________ JUDGE PRESIDING ORDER GRANTING PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION