Peery v. Nixon Engineering,llc

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

AMENDED COMPLAINT against Nixon Engineering, LLC amending, filed by Jayme Peery.

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9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § similarly situated § Civil Action No. 6:2018-cv-00358 § Plaintiff, § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. §216(b) NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) SECOND AMENDED COLLECTIVE/CLASS ACTION COMPLAINT Plaintiff Jayme Peery ("Plaintiff" or "Peery") brings this action individually and on behalf of all others similarly situated (hereinafter "Plaintiff and the Putative Class Members") who worked for Nixon Engineering, LLC (hereinafter "Nixon" or "Defendant"), at any time during the relevant statutes of limitations through the final disposition of this matter, to recover compensation, liquidated damages, attorneys' fees, and costs, pursuant to the provisions of Section 216(b) of the Fair Labor Standards Act of 1938. Plaintiff's FLSA claims are asserted as a collective action under Section 16(b) of the FLSA while his Texas state law claims are asserted as a class action under Federal Rule of Civil Procedure 23(b)(3). I. OVERVIEW 1. This is a collective action to recover overtime wages and liquidated damages brought pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201–19, and a class action pursuant to the law of the State of Texas. Second Amended Collective/Class Action Complaint Page 1 9 2. Plaintiff and the Putative Class Members are those similarly situated persons who worked for Nixon anywhere in the United States within their relevant statutes of limitations through the final disposition of this matter, and were not paid for all hours worked nor the correct amount of overtime compensation in violation of federal law. 3. Specifically, Nixon has enforced a uniform company-wide policy wherein it improperly required its non-exempt hourly employees—Plaintiff and the Putative Class Members—to perform work "off-the-clock" and without pay. 4. Nixon's company-wide policies have caused Plaintiff and the Putative Class Members to have hours worked that were not compensated and further created a miscalculation of their regular rate(s) of pay for purposes of calculating their overtime compensation each workweek. 5. Although Plaintiff and the Putative Class Members routinely worked in excess of forty (40) hours per workweek, Plaintiffs and the Putative Class Members have not been paid overtime of at least one and one-half their regular rates for all hours worked in excess of forty (40) hours per workweek. 6. Nixon has knowingly and deliberately failed to compensate Plaintiff and the Putative Class Members for all hours worked each workweek and therefore failed to provide the proper amount of overtime compensation on a routine and regular basis in the last three years. 7. Plaintiff and the Putative Class Members did not and currently do not perform work that meets the definition of exempt work under the FLSA or Texas law. 8. Plaintiff and the Putative Class Members seek to recover all unpaid overtime, liquidated damages, and other damages owed under the FLSA as a collective action pursuant to 29 U.S.C. § 216(b), and to recover all damages owed under their Texas state-law claim as a class action pursuant to Federal Rule of Civil Procedure 23. Second Amended Collective/Class Action Complaint Page 2 9 9. Plaintiff also prays that all similarly situated workers (Putative Class Members) be notified of the pendency of this action to apprise them of their rights and provide them an opportunity to opt-in to this lawsuit. 10. Plaintiff also prays that the Rule 23 class is certified as defined herein, and that Plaintiff Peery designated herein be named as Class Representative for the Texas Common-Law Class. II. THE PARTIES 11. Plaintiff Jayme Peery ("Peery") was employed by Nixon during the relevant time period. Plaintiff Peery did not receive compensation for all hours worked or the correct amount of overtime compensation for all hours worked in excess of forty (40) hours per workweek.1 12. The FLSA Collective Members are those current and former workers who were employed by Nixon at any from December 10, 2015 through the final disposition of this matter and have been subjected to the same illegal pay system under which Plaintiff Peery worked and was paid. 13. The Texas Class Members are those current and former workers who were employed by Nixon at any time from December 10, 2014 through the final disposition of this matter and have been subjected to the same illegal pay system under which Plaintiff Peery worked and was paid. 14. Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") is a Texas limited liability company, licensed to and doing business in Texas. Nixon has previously been served and has appeared for all purposes herein. III. JURISDICTION AND VENUE 15. This Court has federal question jurisdiction over the FLSA claims pursuant to 28 U.S.C. § 1331 as this is an action arising under 29 U.S.C. §§ 201–19. 1 The written consent of Jayme Peery is on file with the Court at ECF No. 1-1. Second Amended Collective/Class Action Complaint Page 3 9 16. This Court has supplemental jurisdiction over the additional Texas state-law claims pursuant to 28 U.S.C. § 1367. 17. This Court has personal jurisdiction over Nixon because the cause of action arose within this district as a result of Nixon's conduct within this District and Division. 18. Venue is proper in the Western District of Texas because this is a judicial district where a substantial part of the events or omissions giving rise to the claim occurred. 19. Specifically, Nixon has maintained a working presence throughout the State of Texas and Plaintiff Peery worked in Waco, Texas throughout his employment with Nixon, all of which are located within this District and Division. 20. Venue is therefore proper in this Court pursuant to 28 U.S.C. § 1391(b). IV. ADDITIONAL FACTS 21. Upon information and belief, Nixon provides traffic control and highway maintenance services to its clients, including the Texas Department of Transportation ("TXDOT"), in the State of Texas. 22. Plaintiff and the Putative Class Members' job duties consisted of setting up traffic cones on highways, including interstate highways, throughout the State of Texas and directing interstate traffic along those highways, all of which was performed in conjunction with TXDOT. 23. Plaintiff Peery has been employed by Nixon as a "flagger" since approximately May 2018. 24. Plaintiff and the Putative Class Members are non-exempt workers who are (and were) paid by the hour. 25. Plaintiff and the Putative Class Members worked approximately forty "on-the-clock" hours per week. Second Amended Collective/Class Action Complaint Page 4 9 26. Plaintiff Peery was scheduled to work, and did work, forty "on-the-clock" hours every week of his employment with Nixon, with the possible exception of weeks in which he was forced to deviate from his regular schedule as a result of sickness, weather, holidays, and/or vacation. 27. In addition to their forty "on-the-clock" hours, Plaintiff and the Putative Class Members worked up to thirteen (13) hours "off-the-clock" per week and have not been compensated for that time. 28. Plaintiff Peery worked up to thirteen (13) "off-the-clock" hours, in addition to his forty "on-the-clock" hours, every week of his employment with Nixon, with the possible exception of weeks in which he was forced to deviate from his regular schedule as a result of sickness, weather, holidays, and/or vacation. 29. As part of their job responsibilities, Plaintiff and the Putative Class Members have pre- and post-shift responsibilities that they are required to perform at the beginning and end of each work shift, every day that they work for Nixon. 30. Plaintiff and the Putative Class Members' pre- and post-shift responsibilities are integral and indispensable to their core job duties. 31. Plaintiff and the Putative Class Members' pre-shift and post-shift responsibilities are not de minimis in nature. 32. Plaintiff and the Putative Class Members performed (and continue to perform) their daily pre- and post-shift responsibilities "off-the-clock" and without pay. 33. Nixon knew and encouraged Plaintiff and the Putative Class Members to perform their daily pre- and post-shift responsibilities "off-the-clock" in violation of the FLSA. 34. Nixon did not (and does not) compensate Plaintiff and the Putative Class Members for performing their pre- and post-shift responsibilities "off-the-clock." Second Amended Collective/Class Action Complaint Page 5 9 35. As a result of Nixon's failure to compensate Plaintiff and the Putative Class Members for performing their daily pre- and post-shift responsibilities "off-the-clock," Plaintiff and the Putative Class Members worked overtime hours for which they were not compensated on a weekly basis. 36. In addition to their uncompensated daily pre- and post-shift responsibilities, Plaintiff and the Putative Class Members have not been compensated for all the hours they worked for Nixon as a result of Nixon's corporate policy and practice of failing to pay its employees for their daily travel time and time it requires its employees to spend in training, both upon their hire with Nixon and as part of their continuing training throughout their employment, as required by Nixon. 37. Specifically, from May 2018 and during each day of Plaintiff Peery's employment with Nixon, Plaintiff met his coworkers at Nixon's designated meeting location in Waco, Texas. There, and during each day of Plaintiff's employment, Nixon required Plaintiff and the Putative Class Members to conduct a twenty-minute pre-shift inspection on Nixon's vehicle. 38. After completing the inspection, Plaintiff drove his coworkers from Nixon's meeting location in Waco, Texas, to the TXDOT offices in Hillsboro, Texas (approximately an hour away) at which point Nixon considered them to be "on the clock" for purposes of compensation. 39. On a daily basis, Plaintiff and the Putative Class Members were required to perform their a twenty-minute pre-shift inspection on the vehicle and ensure that all necessary equipment was ready for the day, and drive one hour—from Nixon's designated meeting location to TXDOT's offices—all while "off-the-clock" and without pay. 40. Then, from TXDOT's offices in Hillsboro, Texas, Plaintiff and the Putative Class Members would drive to the location of TXDOT's traffic control project. 41. Once at the job site (the site of TXDOT's traffic control project), and during each day of his employment with Nixon, Plaintiff performed the job duties of a flagger. That is, Plaintiff and the Putative Class Members assisted TXDOT workers with the construction and maintenance of state Second Amended Collective/Class Action Complaint Page 6 9 and interstate highways, placing traffic control devices (including cones, rumble strips and barriers) along the highways while they were being maintained and communicating traffic control measures to drivers through the use of flags, when appropriate. 42. At the end of the workday, when TXDOT's daily traffic control activities concluded and Plaintiff and the Putative Class Members finished assisting TXDOT with traffic direction, Nixon considered Plaintiff and the Putative Class to be "off-the-clock." 43. Nevertheless, despite being "off-the-clock" Plaintiff and the Putative Class Members were (and are) required by Nixon to collect the traffic control devices from the highway, load them onto Nixon's truck, and return Nixon's truck to the meeting location selected by Nixon. 44. Plaintiff and the Putative Class Members' collection of the traffic control devices and drive from the location of TXDOT's traffic control project to the required meeting location selected by Nixon, were performed "off-the-clock", and without pay. 45. While the distance (and time) required for Plaintiff and the Putative Class Members to complete this drive may vary on a daily basis, depending on the location of TXDOT's traffic control project, they are always performing this work while "off-the-clock." 46. Because Nixon does not begin to pay Plaintiff and the Putative Class Members until they arrive and begin working at the TXDOT traffic control project, and does not pay Plaintiff and the Putative Class Members after they finish providing traffic control services as flaggers each day, Plaintiff and the Putative Class Members were not (and are not) paid for their daily travel time from Nixon's designated meeting location to the TXDOT offices, or from the location of TXDOT's traffic control project in Hillsboro, Texas to Nixon's designated meeting location, although that is compensable time. 47. These trips collectively add an additional, unpaid ten (10) hours to Plaintiff and the Putative Class Members' weekly forty (40) hour work weeks. Second Amended Collective/Class Action Complaint Page 7 9 48. In addition, Nixon did not (and does not) compensate Plaintiff and the Putative Class Members for time spent in pre-shift vehicle inspections, or in their post-shift activities (collecting Nixon's traffic control devices, loading them onto Nixon's truck, and returning them to the designated meeting location). 49. Plaintiff and the Putative Class Members' pre-and post-shift activities collectively add an additional, unpaid three (3) hours (in addition to the ten (10) hours of unpaid travel time) to their weekly forty (40) hour work weeks. 50. In addition, Nixon did not (and does not) compensate Plaintiff and the Putative Class Members for mandatory meetings and trainings they are regularly required to attend. 51. These "off the clock" activities render the actual time Plaintiff and the Putative Class Members work each week over fifty-three (53) hours. 52. Nixon's failure to compensate Plaintiff and the Putative Class Members for their "off- the-clock" overtime hours violated (and continues to violate) the FLSA and Texas state law. 53. Plaintiff and the Putative Class Members were subjected to (and continue to be subjected to) the same or substantially similar policy, practice or scheme that required them to perform work for Defendant "off-the-clock," as described above. 54. Nixon knew or should have known that the proper amount of compensation, and the proper amount overtime compensation was not being paid to Plaintiff and the Putative Class Members in violation of the FLSA and Texas state law. 55. Nixon knew or should have known that its failure to pay the correct amount of overtime to Plaintiff and Putative Class Members would cause, did cause, and continues to cause financial injury to Plaintiff and the Putative Class Members. Second Amended Collective/Class Action Complaint Page 8 9 56. Nixon knew or should have known that causing and/or requiring Plaintiff and the Putative Class Members to perform necessary work "off-the-clock" would cause, did cause, and continues to cause financial injury to Plaintiff and the Putative Class Members. 57. As a result of Nixon's corporate policy and practice of requiring Plaintiff and the Putative Class Members to perform these tasks "off the clock," Plaintiff and the Putative Class Members were not compensated for all hours worked, including all worked in excess of forty (40) in a workweek at the rates required by the FLSA and Texas state law. 58. Nixon has employed other individuals who perform(ed) the same or similar job duties under the same pay provisions as Plaintiff Peery. 59. Nixon is aware of its obligation to pay for all hours worked and the proper amount of overtime for all hours worked in excess of forty (40) each week to Plaintiff and the Putative Class Members but has failed to do so. 60. Because Nixon did not pay Plaintiff and the Putative Class Members time and a half for all hours worked in excess of forty (40) in a workweek, Nixon's pay policies and practices violate the FLSA. 61. Because Nixon did not pay Plaintiff and the Putative Class Members for all hours they worked on behalf of Nixon, Nixon's pay policies and practices also violate Texas state law. V. CAUSES OF ACTION COUNT ONE (Collective Action Alleging FLSA Violations) A. FLSA COVERAGE 62. All previous paragraphs are incorporated as though fully set forth herein. 63. The FLSA Collective is defined as: ALL CURRENT AND FORMER FLAGGERS WHO WERE EMPLOYED BY NIXON ENGINEERING, LLC, AT ANY TIME FROM DECEMBER 10, Second Amended Collective/Class Action Complaint Page 9 9 2015 THROUGH THE FINAL DISPOSITION OF THIS MATTER ("FLSA Collective" or "FLSA Collective Members"). 64. At all times hereinafter mentioned Nixon, has been an employer within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 65. At all times hereinafter mentioned, Nixon has been an enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 66. At all material times, Nixon has been an enterprise in commerce or in the production of goods for commerce within the meaning of section 203(s)(l) of the FLSA because Nixon has had and continues to have employees engaged in interstate commerce. 29 U.S.C. § 203(s)(1). 67. Specifically, Nixon operates on interstate highways, purchases materials through commerce, transports materials through commerce and on the interstate highways, and conducts transactions through commerce, including the use of credit cards, phones and/or cell phones, electronic mail and the Internet. 68. Further, some of the materials that Plaintiff and the FLSA Collective Members handled and used moved through interstate commerce prior to Plaintiff and the FLSA Collective Members' use of them, such as traffic cones, barriers, flags, signs, rumble strips and other traffic control devices, safety apparel, including safety hats and reflective vests, and handheld two-way radios. 69. At all material times, Plaintiff and the FLSA Collective Members are (or were) employees who engaged in commerce or in the production of goods for commerce as required by sections 206 and 207 of the FLSA. 29 U.S.C. §§ 206–07. Plaintiff and the FLSA Collective Members assist in the maintenance and repair of highways that are themselves the instrumentalities and channels of interstate commerce. See 29 C.F.R. § 776.29. Plaintiff and the FLSA Collective Members also communicate with out-of-state individuals travelling on highways and interstate highways across Texas through the use of flags and other traffic control devices. Second Amended Collective/Class Action Complaint Page 10 9 70. In addition, at all material times, Nixon has had (and continues to have) an annual gross business volume well in excess of the statutory minimum of $500,000.00. 29 U.S.C. § 203(s)(1). B. FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FLSA 71. Nixon violated provisions of Sections 6, 7 and 15 of the FLSA, 29 U.S.C. §§ 206, 207, and 215(2)(a), by employing individuals in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for workweeks longer than forty (40) hours without compensating such employees for their employment in excess of forty (40) hours per week at rates at least one and one-half times the regular rates for which they were employed. 72. Moreover, Nixon knowingly, willfully and in reckless disregard carried out its illegal pattern of causing Plaintiff and the FLSA Collective Members to perform their pre- and post-shift and other duties "off-the-clock", thereby failing to pay Plaintiff and other similarly situated employees the proper amount of overtime compensation for all hours worked over forty each week. 29 U.S.C. § 255(a). 73. Nixon knew or should have known its pay practices were in violation of the FLSA. 74. Nixon is a sophisticated party and employer, and therefore knew (or should have known) its policies were in violation of the FLSA. 75. Plaintiff and the FLSA Collective Members, on the other hand, are (and were) unsophisticated laborers who trusted Nixon to pay according to the law. 76. The decision and practice by Nixon to cause and/or require Plaintiff and the FLSA Collective Members to perform their pre- and post-shift and other duties "off-the-clock" was neither reasonable nor in good faith. 77. Plaintiff and the FLSA Collective Members are entitled to overtime wages for all hours worked over forty each week pursuant to the FLSA in an amount equal to one-and-a-half times their regular rate of pay, plus liquidated damages, attorneys' fees and costs. Second Amended Collective/Class Action Complaint Page 11 9 C. COLLECTIVE ACTION ALLEGATIONS 78. Pursuant to 29 U.S.C. § 216(b), this is a collective action filed on behalf of all those who are (or were) similarly situated to Plaintiff Peery. 79. Other similarly situated employees have been victimized by Nixon's patterns, practices, and policies, which are in willful violation of the FLSA. 80. The FLSA Collective Members are defined in Paragraph 63. 81. Nixon's systematic failure to pay wages for all hours worked and overtime compensation at the rates required by the FLSA results from generally applicable policies and practices, and does not depend on the personal circumstances of the FLSA Collective Members. 82. Thus, Plaintiff's experiences are typical of the experiences of the FLSA Collective Members. 83. The specific job titles or precise job requirements of the various FLSA Collective Members does not prevent collective treatment. 84. All of the FLSA Collective Members—regardless of their specific job titles, precise job requirements, rates of pay, or job locations—are entitled to be properly compensated for all hours worked in excess of forty (40) hours per workweek. 85. Although the issues of damages may be individual in character, there is no detraction from the common nucleus of liability facts. Indeed, the FLSA Collective Members are non-exempt, blue-collar workers entitled to overtime after forty (40) hours in a workweek. 86. Nixon has employed (and continues to employ) hundreds of flaggers throughout the United States during the past three years. Second Amended Collective/Class Action Complaint Page 12 9 87. Absent a collective action, many members of the proposed FLSA class will not likely obtain redress of their injuries and Nixon will retain the proceeds of its rampant violations. 88. Moreover, individual litigation would be unduly burdensome to the judicial system. Concentrating the litigation in one forum will promote judicial economy and parity among the claims of the individual members of the classes and provide for judicial consistency. 89. Accordingly, the FLSA collective of similarly situated plaintiffs should be certified as defined in Paragraph 63 and notice should be promptly sent. COUNT TWO (Class Action Alleging Violations of Texas Common Law) A. VIOLATIONS OF TEXAS COMMON LAW 90. All previous paragraphs are incorporated as though fully set forth herein. 91. Plaintiff Peery further brings this action pursuant to the equitable theory of quantum meruit. See Artemis Seafood, Inc. v. Butcher's Choice, Inc. No. CIV. A. 3:98-0282, 1999 WL 608853, at *3 (N.D. Tex. Aug. 11, 1999) (citing Schuchart & Assocs. V. Solo Serve Corp., 1983 WL 1147, at *23 (W.D. Tex. June 29, 1983)). 92. The Texas Common-Law Class is defined as: ALL CURRENT AND FORMER FLAGGERS WHO WERE EMPLOYED BY NIXON ENGINEERING, LLC, IN THE STATE OF TEXAS, AT ANY TIME FROM DECEMBER 10, 2014 THROUGH THE FINAL DISPOSITION OF THIS MATTER. ("Texas Common-Law Class" or "Texas Common-Law Class Members"). 93. Plaintiff and the Texas Common-Law Class Members are entitled to recover their unpaid "straight time" or "gap time" wages for services rendered on behalf of Nixon. These claims are independent of Plaintiff's claims for unpaid overtime wages pursuant to the FLSA, and they are therefore not preempted by the FLSA. See Carman v. Meritage Homes Corp., 37 F. Supp. 3d 860, 867 (S.D. Tex. 2014) (recognizing that claims for unpaid "straight time" or "gap time" wages are not covered by the FLSA, and are instead recoverable according to state law legal theories). Second Amended Collective/Class Action Complaint Page 13 9 94. Plaintiff and the Texas Common-Law Class Members have not been compensated for all the hours they worked for Nixon as a result of Nixon's corporate policy and practice of failing to pay its employees for their daily compensable travel time and time it requires its employees to spend in training, both upon their hire with Nixon and as part of their continuing training throughout their employment, as required by Nixon. 95. Additionally, on a daily basis, Plaintiff and the Texas Common-Law Class Members were required to perform their a twenty-minute pre-shift inspection on the vehicle and ensure that all necessary equipment was ready for the day, and drive one hour—from Nixon's designated meeting location to TXDOT's offices—all while "off-the-clock" and without pay. 96. At the end of the workday, when TXDOT's daily traffic control activities concluded and Plaintiff and the Texas Common-Law Class Members finished assisting TXDOT with traffic direction, Nixon considered Plaintiff and the Texas Common-Law Class Members to be "off-the- clock." 97. Nevertheless, despite being "off-the-clock" Plaintiff and the Texas Common-Law Class Members were (and are) required by Nixon to collect the traffic control devices from the highway, load them onto Nixon's truck, and return Nixon's truck to the meeting location selected by Nixon—all compensable services. 98. Plaintiff and the Texas Common-Law Class Members's collection of the traffic control devices and drive from the location of TXDOT's traffic control project to the required meeting location selected by Nixon, were performed "off-the-clock", and without pay. 99. Because Nixon does not begin to pay Plaintiff and the Texas Common-Law Class Members until they arrive and begin working at the TXDOT traffic control project, and does not pay Plaintiff and the Texas Common-Law Class Members after they finish providing traffic control services as flaggers each day, Plaintiff and the Texas Common-Law Class Members were not (and are Second Amended Collective/Class Action Complaint Page 14 9 not) paid for their daily travel time from Nixon's designated meeting location to the TXDOT offices, or from the location of TXDOT's traffic control project in Hillsboro, Texas to Nixon's designated meeting location, although that is compensable time. 100. While Plaintiff and the Texas Common-Law Class Members worked over forty hours a week for the majority of their work-weeks with Nixon, there were weeks in which Plaintiff and the Texas Common-Law Class Members did not work over forty (40) hours, rendering their off-the-clock hours worked beyond the scope of the FLSA. 101. Further, for the overtime weeks, Plaintiffs and the Texas Common-Law Class Members were not compensated for their regular, or non-overtime, off-the-clock hours. 102. Plaintiff and the Texas Common-Law Class Members provided valuable services for Nixon, at Nixon's direction and with Nixon's acquiescence when they performed compensable services for Nixon while off the clock and without pay. 103. Nixon accepted Plaintiff and the Texas Common-Law Class Members' services and benefited from their timely dedication to Nixon's policies and adherence to Nixon's schedule. 104. Nixon was aware that Plaintiff and the Texas Common-Law Class Members expected to be compensated for the services they provided to Nixon. 105. Nixon has therefore been benefited from services rendered by Plaintiff and the Texas Common-Law Class Members and Plaintiff and the Texas Common-Law Class Members are entitled to recover their unpaid non-overtime hours pursuant to the equitable theory of quantum meruit. B. TEXAS COMMON-LAW CLASS ALLEGATIONS 106. Plaintiff Peery brings his Texas Common-Law Claims as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of all similarly situated individuals employed by Nixon in Texas since December 10, 2014. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.004. Second Amended Collective/Class Action Complaint Page 15 9 107. Class action treatment of Plaintiff and the Texas Common-Law Class Members is appropriate because, as alleged below, all of Federal Rule of Civil Procedure 23's class action requisites are satisfied. 108. The number of Texas Common-Law Class Members is so numerous that joinder of all class members is impracticable. 109. Plaintiff Peery is a member of the Texas Common-Law Class, his claims are typical of the claims of the other Texas Common-Law Class Members, and he has no interests that are antagonistic to or in conflict with the interests of the other Texas Common Law Class Members. 110. Plaintiff Peery and his counsel will fairly and adequately represent the Texas Common- Law Class Members and their interests. 111. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(3) because common questions of law and fact predominate over questions affecting only individual class members and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 112. Accordingly, the Texas Common Law Class should be certified as defined in Paragraph 92. VI. RELIEF SOUGHT 113. Plaintiff respectfully prays for judgment against Nixon as follows: a. For an Order certifying the FLSA Collective as defined in Paragraph 63 and requiring Nixon to provide the names, addresses, e-mail addresses, telephone numbers, and social security numbers of all putative collective action members; b. For an Order approving the form and content of a notice to be sent to all putative FLSA Collective Members advising them of the pendency of this litigation and of their rights with respect thereto; Second Amended Collective/Class Action Complaint Page 16 9 c. For an Order pursuant to Section 16(b) of the FLSA finding Nixon liable for unpaid back wages due to Plaintiff (and those FLSA Collective Members who have joined in the suit), and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiff (and those FLSA Collective Members who have joined in the suit); d. For an Order certifying the Texas Common-Law Class as defined in Paragraph 92 and designating Plaintiff Peery as the Class Representative of the Texas Common-Law Class; e. For an Order pursuant to Texas common law awarding Plaintiff Peery and the Texas Common-Law Class Members unpaid wages and other damages allowed by law; f. For an Order awarding the costs and expenses of this action; g. For an Order attorneys' fees; h. For an Order awarding pre-judgment and post-judgment interest at the highest rates allowed by law; i. For an Order awarding Plaintiff Peery a service award as permitted by law; j. For an Order compelling the accounting of the books and records of Nixon, at Nixon's expense; and, k. For an Order granting such other and further relief as may be necessary and appropriate. Second Amended Collective/Class Action Complaint Page 17 9 Date: March 27, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Texas Bar No. 24064805 clif@a2xlaw.com Lauren E. Braddy Texas Bar No. 24071993 lauren@a2xlaw.com Alan Clifton Gordon Texas Bar No. 00793838 cgordon@a2xlaw.com Carter T. Hastings Texas Bar No. 24101879 carter@a2xlaw.com 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Attorneys for Plaintiff and the Putative Class Members Second Amended Collective/Class Action Complaint Page 18 9 CERTIFICATE OF SERVICE I hereby certify that on March 27, 2019, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Western District of Texas using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/ Clif Alexander Clif Alexander Second Amended Collective/Class Action Complaint Page 19