Peery v. Nixon Engineering,llc

Western District of Texas, txwd-6:2018-cv-00358

ADVISORY TO THE COURT by Nixon Engineering, LLC.

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IN UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § similarly situated § § Plaintiff, § § v. § CASE NO. 6:18-cv-00358-ADA-JCM § NIXON ENGINEERING, LLC, § § Defendant. § DEFENDANT'S ADVISORY TO THE COURT COMES NOW Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") and, pursuant to the Court's prior Order, files this Advisory to the Court and in support thereof would respectfully show the Court as follows: I. Among the arguments advanced by Defendant in opposition to Plaintiffs' Motion for Conditional Certification, ECF No. 26, is Defendant's argument, relying upon the Fifth Circuit's recent decision in In re JPMorgan Chase & Co., 916 F.3d 494 (5th Cir. 2019), that notice of this potential class/collective action is inappropriate where such potential class members may have signed agreements to arbitrate. See Def.'s Resp. in Opposition to Pls.' Mot. Conditional Certif., ECF No. 28, at 6-7; see also id. at Exs. C, D and E. Although Defendant provided the Court with evidence of the electronic acknowledgements of Defendant's "Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement" by several Plaintiffs, see ECF No. 28 at Ex. E, Defendant did not provide such an acknowledgement from Plaintiff Jayme Peery. 1 4810-6798-9922.1 By Order dated August 21, 2019 (the "Order for Arbitration Evidence"), ECF No. 30, Magistrate Judge Manske ordered that Defendant file with the Court "evidence indicating whether Jayme Peery agreed to the Confidentiality, Nondisclosure, Non-solicitation, Non- Competition and Inventions Agreement contained in Nixon's Employee's Handbook or a statement why such evidence cannot be produced." Pursuant to the Court's Order for Arbitration Evidence, Defendant is filing this Advisory to the Court. Unfortunately, after a review of its personnel records related to Mr. Peery, Defendant is unable to produce a document that evidences Jayme Peery's acknowledgement of the Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement at this time. Because (as evidenced by Exhibit E to Defendant's Response) individuals who were hired during the period in which Peery was hired were required to acknowledge, among other things, the Confidentiality, Nondisclosure, Non-solicitation, Non- Competition and Inventions Agreement, Defendant believes that Peery acknowledged such Agreement, but Defendant is unable to locate such an acknowledgement at this time for reasons that are unknown to Defendant. Defendant will continue its efforts to locate the required acknowledgement, however, and will notify the Court if/when it is located. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court deny Plaintiffs' Motion and grant Defendant such other and further relief to which the Court finds it justly entitled. 2 4810-6798-9922.1 Respectfully submitted, /s/ Ramon D. Bissmeyer_________ Ramon D. Bissmeyer State Bar No. 00787088 DYKEMA GOSSETT PLLC 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 Telephone: (210) 554-5500 Facsimile: (210) 226-8395 Email: Elizabeth A. Voss State Bar No. 24075160 DYKEMA GOSSETT PLLC 1717 Main Street, Suite 4200 Dallas, Texas 75201 Telephone: (214) 462-6400 Facsimile: (214) 462-6401 Email: ATTORNEYS FOR DEFENDANT NIXON ENGINEERING, LLC CERTIFICATE OF SERVICE I hereby certify that on August 28, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing in accordance with the FRCP to the following: Clif Alexander ( Lauren E. Braddy ( Alan Clifton Gordon ( Carter T. Hastings ( George Schimmel ( ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 /s/ Ramon D. Bissmeyer Counsel for Defendant 3 4810-6798-9922.1