Pearson v. Colt Oilfield Services, LLC et al

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

Response in Opposition to Motion, filed by Roy E Aguilar, Colt Oilfield Services, LLC, re {{17}} CORRECTED MOTION for Notice to Potential Plaintiffs & Conditional Certification re {{14}} MOTION for Notice to Potential Plaintiffs & Conditional Certification filed by Plaintiff Paul Duffala, Plaintiff Douglas Pearson, Plaintiff James Adkins

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DOUGLAS PEARSON, JAMES ADKINS, § and on all others similarly situated, § PLAINTIFFS, § CIVIL ACTION 5:18-CV-01029-OLG V. § JURY TRIAL DEMANDED COLT OILFIELD SERVICES, LLC, § AND ROY (EDDIE) AGUILAR, § DEFENDANTS. § DEFENDANTS' RESPONSE TO PLAINTIFFS' CORRECTED MOTION FOR NOTICE TO POTENTIAL PLAINTFFS AND CONDITIONAL CERTIFICATION [DKT. NO. 17] Defendants file this Response to Plaintiffs' Corrected Motion for Notice to Potential Plaintiffs and Conditional Certification ("Motion"). In support, Defendants state as follows: I. SUMMARY It is undisputed that a plaintiff seeking to conditionally certify a proposed FLSA collective action and gain Court authorization to send notice to other potential plaintiffs must make a factual showing that the plaintiff and others are "similarly situated." Plaintiffs have failed to establish that they are similarly situated to the purported nationwide class members. Furthermore, Plaintiffs have failed to provide sufficient evidence that any other potential plaintiffs want to join this lawsuit. If the Court grants conditional certification, the class should be more narrowly defined since Plaintiffs' proposed class is overly broad and Plaintiffs fail to offer sufficient evidence to justify a nationwide class. At most, the evidence submitted by Plaintiffs supports notice only to those that performed the same job duties as Plaintiffs at the same locations and who worked for Defendants in the three years prior to the issuance of the notice. Moreover, the information requested by Plaintiffs and the method of notice is invasive and improper. 1 1 II. THE APPLICABLE LEGAL STANDARD The FLSA permits an employee to bring suit against an employer on "behalf of himself. . . and other employees similarly situated." See 29 U.S.C. §216(b). In determining whether to certify a FLSA collective action, courts in this district use the Lusardi analysis. See e.g., Lay v. Gold's Gym Int'l, Inc., No. SA-12-CV-754-DAE, 2013 U.S. Dist. LEXIS 144264, *9 (W.D. Tex. 2013). The first step of the Lusardi analysis is the "notice stage." See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995)(overruled on other grounds). During the notice stage, the court "makes a decision—usually based only on the pleadings and any affidavits which have been submitted—whether notice of the action should be given to potential class members." Id. Generally, a plaintiff must show that: "(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant aspects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit." Morales v. Thang Hung Corp., No. 4:08-2795, 2009 U.S. Dist. LEXIS 71765, *2 (S.D. Tex. 2009). The Court has discretion in "appropriate cases" to conditionally certify proposed FLSA collective actions and authorize notice to be sent to potential plaintiffs. Hoffmann-La Roche v. Sperling, 493 U.S. 165, 169 (1989). But "notice is by no means mandatory." Valcho v. Dallas County Hosp. Dist., 574 F. Supp. 2d 618, 621 (N.D. Tex. 2008) (internal quotations and citations omitted) (emphasis added); Mooney, 54 F.3d at 1212. III. LEGAL ANALYSIS: CONDITIONAL CERTIFICATION IS NOT WARRANTED As noted infra, Plaintiffs seek to certify a nationwide class. The plaintiff bears the burden at the notice stage, and the plaintiff must provide competent evidence to show that a similarly situated group of potential plaintiffs exists. Casanova v. Gold's Texas Holdings Group, Inc., 2014 U.S. Dist. LEXIS 161844, *2 (W.D. Tex. 2014). A key consideration for meeting this 2 1 standard is whether substantial allegations exist that potential members were together the victims of a single decision, policy, or plan. See, e.g., Richardson v. Wells Fargo Bank, N.A., No. 4:11- cv-00738, 2012 U.S. Dist. LEXIS 12911, *7 (S.D. Tex. 2012). In making this determination, courts consider whether there is evidence the individual plaintiffs had similar "factual and employment settings" and whether there was a "common policy or plan" that affected the potential plaintiffs. Id. Although the preliminary stage under Lusardi is lenient, it still "must be based on a personal knowledge of the facts." Tice v. AOC Senior Home, 826 F. Supp. 2d 990, 995 (E.D. Tex. 2011) (emphasis added). Unsupported assertions of widespread violations are not sufficient to meet Plaintiffs' burden. Hall v. Burk, Civil No. 3:01-CV-2487-H, 2002 U.S. Dist. LEXIS 4163, *7 (N.D. Tex. 2002). "The purpose of the similarly situated requirement is to ensure that collective actions will promote the economies of scale envisioned by the FLSA." Pacheco v. Aldeeb, 2015 U.S. Dist. LEXIS 40944, *15 (W.D. Tex. 2015). A. Plaintiffs Failed to Show Any Aggrieved Individuals are Similarly Situated Plaintiffs' nearly identical declarations fail to meet the minimal showing of "similarly situated." Specifically, the declarations offered by Plaintiffs allege the following: 1. Defendants employed them as Operators to deliver and operate their oilfield equipment for customers at well sites. Their primary job duties consisted of loading, unloading, rigging up, rigging down, and operating oilfield equipment at well sites. These job duties were technical, physical and largely manual in nature and remained consistent regardless of the geographical location where they worked. See Dkt. Nos. 17-3, 17-4 and 17-5 (¶¶ 1 and 2). 2. The duties, hours, and pay policies applicable to all Operators did not depend on the geographic area or region where they worked. This belief and knowledge is based on (1) conversations they had with other Operators who spoke to them about their job duties, hours of work, and how Defendants paid them during their employment; and (2) observing other individuals performing the same or similar duties as they did while working as Operators for Defendants. See Dkt. Nos. 17-3, 17-4 and 17-5 (¶ 4). First and foremost, Plaintiffs failed to present any evidence regarding where they specifically worked or where the persons they had conversations with worked. Even under the most lenient 3 1 standard, where different locations are implicated, a plaintiff must submit affidavits from other employees alleging that they worked at different locations and are similarly situated. Ali v. Sugarland, 2009 U.S. Dist. LEXIS 118829, *13 n. 4 (S.D. Tex. 2009). Plaintiffs have failed to provide the Court with any basis to determine whether Defendants' treatment of employees at its worksites across the country would render them "similarly situated" to Plaintiffs. Moreover, Plaintiffs do not explain what they actually did, their day-to-day tasks, what equipment they used, or how those tasks and duties are similar as between Plaintiffs and the numerous other individuals to whom they want to send notice. Plaintiffs' evidence is minimal as to job requirements and daily tasks and duties. This evidence fails to show whether other employees in the same positions perform the same basic tasks, which prevents the Court from concluding that the class-wide members are similarly situated. Accordingly, Plaintiffs' Motion should be denied. See Mathis v. Stuart Petroleum Testers, Inc., No. 5:16-cv-094-RP, 2016 U.S. Dist. LEXIS 115334, *5-8 (W.D. Tex. 2016); Wright v. O-Tex Pumping, LLC, No. 2:15-cv- 1895-JRG, 2016 U.S. Dist. LEXIS 191728, *6 (E.D. Tex. 2016). B. Plaintiffs Failed to Show Potential Plaintiffs Want to Join the Lawsuit Courts in this district have held that one "thinking" others will join a collective action, without more, is not enough to warrant conditional certification. See Cantu v. Circle Bar A. Inc., 2016 U.S. Dist. LEXIS 8646, *4 (W.D. Tex. 2016). "[A] plaintiff must do more than show the mere existence of other similarly situated persons, because there is no guarantee that those persons will actually seek to join the lawsuit." McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 805 (S.D. Tex. 2010). "Affidavits from potential class members affirming their intention to join the suit are ideal for an analysis of whether 'the putative class member were victims of a single decision, policy or plan." Id. Affidavits are ideal so an employer will not be "unduly 4 1 burdened by a frivolous fishing expedition conducted by plaintiff at the employer's expense." Id. Here, the declarations offered state that Named Plaintiff Adkins would join the lawsuit, which he has already done. See Dkt. Nos. 17-3 and 17-5 (¶ 5). Moreover, Named Plaintiff Adkins' declaration names two other persons he "believe[s] . . . would join this case if they were aware of its existence." See Dkt. No. 17-4 (¶ 5). Plaintiffs provide no other evidence. Without more, these declarations are insufficient to support conditional certification. See Cantu, 2016 U.S. Dist. LEXIS 8646, *4; Clark v. City of Forth Worth, 800 F. Supp. 2d 776, 780 (N.D. Tex. 2011)(finding declaration of the two named plaintiffs and two non-parties do "little more than allege the existence of potentially similarly situated employees."); Yoakum v. PBK Architects, Inc., 2011 U.S. Dist. LEXIS 114190, *7 (S.D. Tex. 2011) (single consent to join insufficient); Morales, 2009 U.S. Dist. LEXIS 71765 (plaintiff's affidavit claiming three others wished to join but only one consent to join is insufficient). IV. OBJECTIONS TO NOTICE AND CONSENT TO JOIN If the Court grants conditional certification, Defendants respectfully submit as follows: A. The Proposed Class is Overly Broad Plaintiffs offer the following proposed description for the collective action class: All of Defendants' current and former non-supervisory employees 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," "Fluid Engineer," "Chemical Plant Operator," "Mixing Plant Operator," and other non-supervisory positions who perform the same or similar job duties. See Motion, p. 3. "A court 'has the power to modify a FLSA collection action definition on its own' if the 'proposed class definition does not encompass only similarly situated employees." Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 861 (S.D. Tex. 2012). The Court should 5 1 modify the class description as follows for the following reasons: 1. Limit Scope of Employees. Plaintiffs' proposed class is overbroad in scope. First, it fails to define "Oilfield Work" in any manner and as currently proposed would include any individual involved in the oilfield industry. Second, it includes job titles the Named Plaintiffs never held. Specifically, in Plaintiffs' Second Amended Complaint, the Named Plaintiffs allege that they held the following job titles: "Operator," "Field Operator," "Hydrostatic Operator," and "Completions Operator." See Dkt. No. 16, pg. 2. Yet, Plaintiffs seek to include numerous other job classifications. There is no evidence concerning these other job classifications. Further, Plaintiffs should not be allowed to impermissibly broaden the class by adding "or similar duties" to the proposed class definition. By offering an open-ended class definition with undefined references, Plaintiffs are attempting to create a larger class without demonstrating that the putative class members are similarly situated. Thus, this class definition should be rejected. 2. Include Geographical Limitation. "FLSA violations at one of a company's multiple locations generally are not, without more, sufficient to support company-wide notice." McCloud v. McClinton Energy Group, LLC, No. 7:14-CV-120, 2015 U.S. Dist. LEXIS 20374, *21-23 (W.D. Tex. 2015). Colt provided services at well sites in numerous states during the relevant time period and the Named Plaintiffs worked in only three of them. See Exhibit D-1 attached hereto. Thus, at most, Plaintiffs' declarations support conditional certification for the locations where the Named Plaintiffs worked (even though they have failed to identify those locations at all). Plaintiffs, however, improperly seek to conditionally certify a nationwide class. This request should be rejected because Plaintiffs have "failed to produce any evidence that a comprehensive, company-wide" compensation scheme exists beyond the facilities where they worked. Id. at *8 (limiting the class to the two locations at which Plaintiffs and potential opt-in 6 1 plaintiffs worked, based on their failure to include evidence relevant to other locations). 3. Measure Three-Year Period from Date of Notice. An FLSA collective action is to be considered "commenced" for purposes of statute of limitations when an opt-in plaintiff's written consent to join the case is filed with the court. 29 U.S.C. §256. As the FLSA requirements favor measuring the date from the date of notice, Defendants request that the Court amend the proposed class description to include this limitation. Tolentino v. C&J Spec-Rent Services Inc., 716 F. Supp. 2d 642, 655-56 (S.D. Tex. 2010) For these reasons, although Defendants do not believe that conditional certification is appropriate, if this Court disagrees, Defendants submit that the following class definition is more appropriately tailored to identify purported class members: All of Defendants' current and former non-supervisory employees paid on a salary basis that worked more than 40 hours during one workweek, who were not paid overtime, over the past three years whose job duties include loading, unloading, rigging up, rigging down, and operating oilfield equipment/tools at well sites in Louisiana; New Mexico; East Texas; and West Texas. This definition includes the following job titles: "Operator," "Field Operator," "Hydrostatic Operator," and "Completions Operator." B. Plaintiffs' Request for Information and for Providing Notice is Too Broad Plaintiffs request that the Court order Defendants to produce the names, job title, start and end dates of employment, last known addresses, email addresses, and telephone numbers of the potential plaintiffs. See Motion, p. 9. Moreover, Plaintiffs request that they be permitted to issue notice via mail, email and text.1 Plaintiffs' requests are overbroad. 1 Defendants anticipate that Plaintiffs will request that this Court allow notice at Defendant Colt's locations where governmental required notices are posted. If Plaintiffs do so, Defendants respectfully submit that such notice would be overly intrusive because it would serve merely to supplement the other notice given to the putative claims members. See n re: Wells Fargo Wage & Hour Emp't Practices Litig., No. H-11-2266, 2013 U.S. Dist. LEXIS 70040, *7-8 (S.D. Tex. 2013). Defendants further anticipate that Plaintiffs will seek to send "follow up" reminder postcards to those that fail to respond. Follow up reminders are unnecessary to properly give notice to putative class members. Follow up reminders could be interpreted as an encouragement to join the lawsuit, rather than notification as is permitted. See, 7 1 The primary purpose of the collective action notices process is to ensure that the "putative class members actually receive notice in a timely manner." See Garcia v. TWC Admin., LLC, No. SA:14-CV-985-DAE, 2015 U.S. Dist. LEXIS 50384, *11 (W.D. Tex. 2015). Addresses, email addresses and telephone numbers are not necessary to effectuate notice and constitute private and confidential information that should not be disclosed without proof that notice cannot be effectuated through service by mail. Id. While there is not a great deal of uniformity with respect to the types of information courts generally order defendants to produce, many have taken the view that putative class members' names and addresses are sufficient to ensure that notice is received. See Id. (providing string citations); Nguyen v. Versacom, LLC, Civil Action No. 3:13-CV-4689-D, 2015 U.S. Dist. LEXIS 39738, *33 (N.D. Tex. 2015) (denying request for email and phone numbers); Page v. Nova Healthcare Mgmt., L.L.P., No. H- 12-2093, 2013 U.S. Dist. LEXIS 128981, *23-24 (S.D. Tex. 2013) (denying request for phone numbers and only allowing names and addresses); Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 524 (N.D. Tex. 2014) (granting request for names and addresses but not permitting phone numbers); but cf. Butler v. TFS Oilfield Servs., LLC, No. SA-16-CV-1150-FB, 2017 U.S. Dist. LEXIS 218126, *20 (W.D. Tex. 2017) (Noting that some courts have found text to be appropriate "at least where there is evidence that text messaging is a form of communication previously used by the employer to communicate with employees."). Finally, in the event that any notices are returned as undeliverable, Plaintiffs can move the court for additional information in reaching those persons. Further, sending notices in multiple formats may be viewed as encouraging litigation and the request has been denied recently in this district. Leyva v. 35 Bar & Grill, LLC, No. SA-15- CA-295-FB, 2015 U.S. Dist. LEXIS 136509, * (W.D. Tex. 2015); Wells Fargo, 2013 U.S. Dist. Witteman v. Wisc. Bell, Inc., No. 09-cv-440-vis 1, 2010 U.S. Dist. LEXIS 8845, *10 (W.D. Wis. 2010). 8 1 LEXIS 70040, *7-8. Plaintiffs have failed to show a need to require Defendants to provide addresses, email addresses and phone numbers to effectuate effective notice. First, with regard to the effectiveness of mail, Plaintiffs' declarations provide that they are away from home often, but even when they get mail, they are not likely to look at it. This does not equate to ineffective service and does not mean that notice cannot be effectuated by mail to the putative class members. That is, unless and until mail notice is shown to be ineffective as to a particular individual, there is no reason to assume the putative class members will not open their mail. Moreover, if the Court in inclined to allow emails, this is sufficient. That is, in the declarations offered by Plaintiffs, the declarants admit that they are able to obtain emails on their phones. See Dkt. Nos. 17-3, 17-4 and 17-5 (¶ 7). To maintain the integrity of the court-supervised process, to protect potentially confidential information, and to avoid the appearance of encouraging litigation, the Court should deny Plaintiffs' request to issue notice by mail, email and text. C. If the Court Conditionally Certifies the Action, It Should Order the Parties to Confer Regarding the Proposed Notice and Consent to Join Defendants have reviewed Plaintiffs' proposed notice and consent to join and request modifications to them as reflected in Exhibit D-2 attached hereto. If the Court grants notice, Defendants respectfully request the Court to direct the parties to confer regarding the content of the documents based on the following objections: 1. Plaintiffs' Notice should delete any references to being "paid per job or per foot of pipe laid" as they are inapplicable to the case at bar. See Dkt. No. 17-1. 2. Defendants should be allowed to deny the allegations or explain their position so that potential opt-in plaintiffs are fully informed about this lawsuit before deciding whether to join. See Tolentino, 716 F. Supp. 2d at 655. 3. The Notice should accurately describe the class and job duties of the putative class. 9 1 4. Defendants object to the following language "If you do not do so, you will not share in any money awarded in the case," which is misleading and infers that money will be awarded in the case. 5. Defendants should be allowed to inform the putative class members that they may be required to pay costs if the Court reaches a decision for Defendants; otherwise, a potential opt-in may "believe that there would be no risk of incurring personal costs of any kind if the litigation were unsuccessful." See Garcia, 2015 U.S. Dist. LEXIS 50384, *18-19; Behnken, 997 F. Supp. 2d at 524. 6. The Notice should advise putative class members that the may be required to participate in written discovery and/or depositions, and that they may be required to travel to San Antonio to fulfill this obligation. This request is routinely approved. Garcia, 2015 U.S. Dist. LEXIS 50384, *17. 7. Plaintiffs' Notice improperly directs opt-ins to Plaintiffs' counsel and the corresponding Consent to Join provides that the putative class member is agreeing to representation by Plaintiffs' attorneys. See Dkt. No. 17-1 and 17-2. The Notice should include information regarding the putative class members' right to retain counsel of their own choosing. Otherwise, the Notice gives the inaccurate impression that the sole avenue for class members to pursue their claims is through Plaintiffs' attorney. Garcia, 2015 U.S. Dist. LEXIS 50384, *20-21. WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court deny Plaintiffs' Corrected Motion for Notice to Potential Plaintiffs and Conditional Certification. Alternatively, and as fully described previously, Defendants pray that the Court: (1) amend the collective action class description; (2) limit the information to be submitted to Plaintiffs to the name and last known address of those in the putative class; (3) allow Defendants 15 business 10 1 days to submit the ordered information to Plaintiffs; (4) provide Plaintiffs and Defendants a specified amount of time to confer and come to an agreement regarding the Notice and Consent to Join Collective Action to be distributed and the manner of distribution; and (5) grant any and all relief, in law or equity, to which Defendants show themselves to be justly entitled. Respectfully submitted, /S/MELISSA MORALES FLETCHER Melissa Morales Fletcher, Of Counsel State Bar No. 24007702 Email: Melissa@themoralesfirm.com THE MORALES FIRM, P.C. 6243 IH-10 West, Suite 132 San Antonio, Texas 78201 Telephone: (210) 225-0811 Facsimile: (210) 225-0821 GOODE CASSEB JONES RIKLIN CHOATE & WATSON, PC 2122 North Main Avenue San Antonio, Texas 78212 Tel: (210) 733-6030 Fax: (210) 733-0330 Kyle C. Watson State Bar No. 20971100 Email: watson@goodelaw.com Jenna C. Castleman State Bar No. 24105583 Email: castleman@goodelaw.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I do hereby certify that on December 21, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM-ECF system, which will send notification of such filing to the following: Jack Siegel, Siegel Law Group, 2820 McKinnon, # 5009, Dallas, Texas 75201. /s/ Melissa Morales Fletcher Melissa Morales Fletcher 11