Peery v. Nixon Engineering,llc

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

Exhibit 1 - Response in Opposition to Plaintiffs' Opposed Motion for Condi

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7 EXHIBIT 1 7 IN UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § CIVIL ACTION NO. 6:18-cv-00358 similarly situated § § JURY TRIAL DEMANDED Plaintiff, § § COLLECTIVE ACTION v. § PURSUANT TO 29 U.S.C. §216(b) § NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFFS' OPPOSED MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO THE PUTATIVE CLASS MEMBERS1 Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") hereby files its Response in Opposition to Plaintiffs' Motion for Conditional Certification and Notice to the Putative Class ("Plaintiffs' Motion"), and in support thereof would respectfully show the Court as follows: I. INTRODUCTION Plaintiffs seek conditional certification of a putative class of individuals based on allegations that Defendant paid all of its current and former "hourly" employees only for hours reported on work logs submitted to the Texas Department of Transportation ("TxDOT"), instead of all hours actually worked for Defendant. See Pls.' Mot. at 4. Defendant denies Plaintiffs' allegations, as Defendant's policy and practice is to pay its employees for all hours worked. Exhibit A, Declaration of Teena Fogarty, at ¶ 6. Plaintiffs' Motion should be denied because Plaintiffs are not similarly situated to all members of the proposed putative class, as is required. 1 Defendant's Response is filed contemporaneously with its Unopposed Motion for Leave to Exceed Page Limitations. 1 4849-9422-1721.5 7 Defendant provides traffic control in Texas to a number of clients, including the Texas Department of Transportation ("TxDOT"). Id. at ¶ 2. To provide these services, Defendant employs individuals in various capacities, including Flaggers, Drivers, Crew Leaders, Yard Managers, Fleet Managers and Supervisors. Id. at ¶ 3. Flaggers, Drivers, Crew Leaders and Yard Managers are, for purposes of the Fair Labor Standards Act ("FLSA"), non-exempt employees paid on an hourly basis. Id. at ¶ 4. Supervisors and Fleet Managers are classified, for FLSA purposes, as exempt employees. Id. at ¶ 4. When providing services to TxDOT, Defendant complies with its contracts with TxDOT, including any prevailing wage required by such contracts. Id. at ¶ 5. Generally, such contracts provide that Defendant is paid by TxDOT based on the hours worked by specific classifications of field employees, including Flaggers, Drivers and Crew Leaders. Id. Accordingly, Defendant is required to provide documentation of hours worked by these employees to TxDOT, typically on a "Form 1257." Id. Regardless of its contractual obligations with any third party, Defendant complies with the FLSA's requirements regarding pay for all hours worked, including overtime pay for those non-exempt employees who work more than forty (40) hours in a workweek. Id. at ¶ 6. Defendant requires all employees to sign off on the daily work record confirming that the hours reported therein are correct. Id. As detailed to employees in the Employee Handbook, Defendant also provides draft paystubs to employees on the Monday following the end of the pay period ending on the previous Saturday and requires employees to submit payroll tickets to report any errors with the paystub for correction in the upcoming payroll (if the correction is submitted in time) or subsequent payroll. Id.; see also Ex. B, "Payroll Policy" and "Notice to Employees" (item no. 3) from Employee Handbook; Ex. D, Decl. of Lisa Rinehart, at ¶ 3. While true that Defendant's non-exempt employees are paid, principally, based upon hours worked as 2 4849-9422-1721.5 7 recorded on the Form 1257s, employees who report additional hours worked are paid following communication by the employee and verification, if necessary, by Defendant. Ex. A at ¶ 6. Defendant does not have a policy of paying employees only based upon hours reported in the Form 1257s. Id. Contrary to Plaintiffs' allegations, all non-exempt employees are part-time and on-call, with most working only four days per week and less than eight hours per day. Ex. A at ¶ 4. As a result, few non-exempt employees work more than thirty hours per week. Id. Generally speaking, Flaggers, Drivers and Crew Leaders working on TxDOT jobs are required to report to either a TxDOT office or directly to their job site at a specific time, which required meeting site may vary by job. Id. at 8. These employees have the choice of either: (1) driving personal vehicles to the TxDOT office or job site; or (2) meeting an employee who has a company vehicle at that employee's home or lodging facility and receiving a courtesy ride to the TxDOT office or job site. Id. Employees who receive courtesy rides have no duties until they arrive at the required meeting site. Id. Likewise, employees are not required to conduct safety inspections without being paid for such activities. Id. at 9. Plaintiffs' Motion should be denied because Plaintiffs do not afford the Court with adequate facts to determine that all of Defendant's hourly employees are similarly situated to Plaintiffs. Plaintiffs' Motion should further be denied because Plaintiffs have not established that they were victims of a "common policy" that violated the law. In the event the Court grants Plaintiffs' Motion, however, any proposed class should be limited to hourly-paid Flaggers, Drivers and Crew Leaders who had the same Supervisors only in the specific regions and on the specific job contracts, e.g., TxDOT, in which the five individuals who provide declarations in support of Plaintiffs' Motion ("Declarants") worked, and who did not sign a "Statement of 3 4849-9422-1721.5 7 Employee" stating their agreement to the Company's Confidentiality, Nondisclosure, Non- Solicitation, Non-Competition and Inventions Agreement (for the reasons discussed herein). Further, the Court should not approve of the form of notice requested by Plaintiffs for several reasons identified herein. II. ARGUMENT AND AUTHORITIES A. Conditional Certification Is Not Warranted. Courts may conditionally certify a class and permit notice to the class under the FLSA. Hoffman-La Roche v. Sperling, 493 U.S. 165 (1989). Although the Fifth Circuit has not endorsed a particular method for use in deciding the issue of FLSA conditional certification, this Court has used the Lusardi "two-step" approach. English v. Tex. Farm Bureau Corp., No. 6:17- CV-00323, 2019 U.S. Dist. LEXIS 83911, at *6 (W.D. Tex. Mar. 29, 2019). The first step under Lusardi is the notice stage, which typically occurs before the parties have conducted discovery and requires the Court to determine whether to conditionally certify a class and issue notice to potential class members. Valcho v. Dallas Cty. Hosp. Dist., 574 F. Supp. 2d 618, 622 (N.D. Tex. 2008). Plaintiffs bear the burden of proving that conditional certification of a class pursuant to Section 216(b) of the FLSA is warranted. Id. ("The court is generally more 'lenient' with regard to substantial similarly during the 'notice' stage of the analysis, id., but 'notice is by no means mandatory.'") (citation omitted). Courts should allow collective actions only when "common issues of law and fact arising from the same alleged ... activity" promote efficiency and judicial economy. Hoffman-La Roche, 493 U.S. at 170. A "decision to certify, even if subject to correction at the decertification stage, is not without consequences ... [too much leniency at the notice stage can lead to a 'frivolous fishing expedition conducted by the plaintiff at the employer's expense.'" Lang v. DirecTV, Inc., No. 10-1085, 2011 U.S. Dist. LEXIS 150047, at *25 (E.D. La. Dec. 30, 2011). "Extreme leniency at 4 4849-9422-1721.5 7 the notice stage can result in conditional certification that must later be revoked on the eve of trial. . . when it becomes obvious that manageability concerns make collective action impossible." Id. at *25-26. To succeed on a motion for conditional certification, 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 respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit." English, 2019 U.S. Dist. LEXIS 83911 at *12 (quoting Maynor v. Dow Chem. Co., No. G-07- 0504, 2008 U.S. Dist. LEXIS 42488, at *6 (S.D. Tex. May 28, 2008) (additional citations omitted). Here, as Plaintiffs' Motion fails to establish that the proposed class of all current and former hourly employees is similarly situated to Plaintiffs, it should be denied. B. Plaintiffs Fail to Prove That Putative Class Members Are Similarly Situated. When analyzing a motion for conditional certification at the notice stage and considering whether the proposed class is similarly situated to the plaintiff, "the relevant inquiry is whether the potential class members performed the same basic tasks and were subject to the same pay practices." English, 2019 U.S. Dist. LEXIS 83911 at *15 (quoting Kibodeaux v. Wood Grp. Prod., No. 4:16-CV-3277, 2017 U.S. Dist. LEXIS 72226, at *2 (S.D. Tex. May 11, 2017)). Plaintiffs have not and cannot establish that they are similarly situated to all current and former "hourly" employees of Defendant. Variances even within a single state are not insignificant. See, e.g., Basco v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 12441, at *24 (E.D. La. July 2, 2004) (in deciding not to certify a statewide class of potential plaintiffs, the district court observed: "A store locate[d] in Northern Louisiana faces different pressures and sales dynamics than a store in Southern Louisiana."). 5 4849-9422-1721.5 7 Plaintiffs provided declarations of five individuals who were allegedly employed in three capacities – "Flagger, TMA Driver and Crew Leader" – all of whom reported to the same Supervisor, Teena Fogarty, and worked at only some of Defendant's many job sites. Ex. A at ¶ 7 (noting that Peery alone also had other Supervisors). Plaintiffs have provided no evidence that other hourly employees, including Yard Managers and Fleet Managers, performed the same basic tasks, under the same situation, as employees with these titles or that they were subject to the same alleged pay practices. Because such declarations are unable to show job tasks and/or pay practices at any of Defendant's other job sites, working under different Supervisors and providing services to clients other than TxDOT, it cannot be found that Plaintiffs are similarly situated to the class that they seek to certify, and their Motion to Certify the class requested should be denied. See Nabarette v. Propetro Services, Inc., No. MO:15-CV-00211, 2016 U.S. Dist. LEXIS 186374, at *11-15 (W.D. Tex. April 4, 2016) (partially denying certification to the extent it sought to include positions plaintiff had never held). Additionally, during their periods of employment, employees were provided with an Employee Handbook and "Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement" that included, among other things, provisions related to arbitration of disputes and waiver of jury trial. See Ex. C, "Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement"; Ex. D at ¶ 4. Several Plaintiffs electronically signed a "Statement of Employee" stating "I specifically agree to the Company's Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement contained in the Company Employee's Handbook dated December 20, 2016. See Ex. E, "Account Details" for Declarants Heath, Neal, J. Swinner and W. Swinner and "Statement of Employee" of Declarant Neal; Ex. D at ¶ 5. As recognized by the Fifth Circuit only a few months ago, sending notice to 6 4849-9422-1721.5 7 potential class members who may have signed agreements to arbitrate is inappropriate, In re JPMorgan Chase & Co., 916 F.3d 494 (5th Cir. 2019), and Defendant believes that the same holding should apply with respect to individuals who agreed to waive their right to a jury trial, as those who are entitled to a trial by jury cannot be said to be similarly situated to those who have waived such a trial. Accord Swoope v. Bellsouth Telecommc'ns, Inc., 1998 U.S. Dist. LEXIS 11416, *15-16 (N.D. Miss., June 23, 1998) (denying certification of ADEA class under Section 216 of FLSA because some within the class had signed releases, requiring litigation of the validity of such releases). C. Plaintiffs Have Not Established a "Common Policy" That Violated the Law. To obtain conditional certification of a class of purportedly similarly situated individuals, Plaintiffs must show that such individuals were together the victims of a single decision, policy or plan. English 2019 U.S. Dist. LEXIS at 83911 *11. Even where the parties have conducted little discovery and the court has minimal evidence before it, courts still require some evidence of a common, unlawful policy beyond conclusory assertions in pleadings, affidavits, or declarations. Vargas v. HEB Grocery Co., LP, No. SA-12-CV-116-XR, 2012 U.S. Dist. 132030, at *13-15 (W.D. Tex. Sept. 17, 2012). Courts routinely deny conditional certification when plaintiffs fail to show any evidence of a common policy or scheme that violates the FLSA. See, e.g., Hickson v. United States Postal Serv., 2010 U.S. Dist. LEXIS 104112 (E.D. Tex. July 22, 2010) (denying certification because plaintiffs' evidence failed to provide a colorable basis that all the putative members of the class action sustained injury from one unlawful policy); Simmons v. T-Mobile USA, Inc., 2007 U.S. Dist. LEXIS 5002 (S.D. Tex., Jan. 24, 2007) (denying certification because plaintiff failed to meet his burden to allege, with a factual basis, that he and the potential plaintiffs together were victims of a common policy or plan that violated the law). 7 4849-9422-1721.5 7 Plaintiffs' Motion is based on Defendant's alleged corporate policy of "paying only for the hours the roadway project is being worked on by TxDOT employees." Pl.'s Mot. at 5. However, the only policies common to each of the proposed class members is Defendant's policy to pay employees for all hours worked. Ex. A at ¶ 6; Ex. B at 2 ("Your paycheck is payment from the Company to you for services you have rendered. It is exactly equal to the amount of work you performed."). Defendant's policies provide that employees will be compensated for all hours worked, not that they won't be, as Plaintiffs allege. Id. Thus they do not "violate the law," but instead they ensure compliance with the law, and do not support certification. Pacheco v. Boar's Head Provisions Co., 671 F. Supp. 2d 957, 962 (W.D. Mich. 2009) ("Because the company's written policy clearly requires that employees be paid for donning and doffing time, the Court cannot simply accept Plaintiffs' allegation that there is a common or uniform practice of not paying employees for donning and doffing time."); Olivo v. GMAC Mortg. Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004) (quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003) (additional citations omitted). Given Defendant's written policy to the contrary and the fact that Declarants were all supervised by Ms. Fogarty and only have knowledge of the practices in the locations in which Declarants worked, Plaintiffs have failed to establish that there is a company-wide practice of disregarding Defendant's policy. D. Alternatively, the Proposed Class Should Be Limited. The Court "has the power to modify an FLSA collective action definition on its own" if the "proposed class definition does not encompass. . . similarly situated employees." Dreyer v. Baker Hughes Oilfield Operations, Inc., NO. H-08-1212, 2008 U.S. Dist. LEXIS 101297, at *7 (S.D. Tex. Dec. 11, 2008). Plaintiffs have failed to show the existence of a common illegal pay 8 4849-9422-1721.5 7 practice as to all "hourly" employees of Defendant on company-wide basis at all locations, under all supervisors and working on all clients' contracts. At most, Plaintiffs allege that Defendant failed to pay Flaggers, Drivers and Crew Leaders for all hours worked on TxDOT contracts at the locations at which Declarants worked while under the supervision of Ms. Fogarty. As a result, should the Court determine that class certification is appropriate, the scope of the class should be limited accordingly. E. Plaintiffs' Proposed Notice and Schedule Are Defective. Even if the Court finds conditional certification of a class to be appropriate, the Court should revise Plaintiffs' proposed Notice and Schedule, as to which Defendant has several objections. The Court has significant discretion in collective actions under the FLSA, including the discretion to authorize notice to potential plaintiffs that they may "opt-in" to the suit and discretion in monitoring the preparation and distribution of any notices to such individuals. See, e.g., Vogt v. Tex. Instruments, Inc., No. 3:05-CV-2244, 2006 U.S. Dist. LEXIS 67226, at *5 (N.D. Tex. Sept. 19, 2006) (citing Hoffman-LaRoche, 493 U.S. at 169, 173) ("In exercising the discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action."). Upon determining that the issuance of notice is appropriate, the district courts monitor the preparation and distribution of notice to ensure that it is timely, accurate and informative. Hoffman-La Roche, 493 U.S. at 171. The district courts' exercise of discretion in monitoring the preparation and distribution of notice with respect to the production and use of information other than the putative plaintiffs' names and addresses includes consideration of various factors, including: "(1) whether the plaintiff argues that the U.S. mail is inadequate; (2) whether communication to potential class members will be 9 4849-9422-1721.5 7 controlled or could be distorted; (3) whether communication will be disruptive; and (4) whether communication will be intrusive upon privacy." Ott v. Publix Super Mkts., 298 F.R.D. 550, 555 (M.D. Tenn. 2014); see also Garcia v. TWC Admin., LLC, No. SA:14-CV-985-DAE, 2015 U.S. Dist. LEXIS 50384, at *10-13 & n.2 (W.D. Tex. April 16, 2015). While Defendant has certain objections to the language in the Notice, Defendant's more significant objections are to Plaintiffs' proposed schedule of Notice. As a preliminary matter, Defendant concedes that disclosure of the names, addresses, and email addresses of proposed class members is common, that sending notice by both mail and email2 is often found to be appropriate, and that sixty days is a reasonable notice period in this case. Defendant objects, however, to Plaintiffs' request for the telephone numbers, dates of employment, dates of birth, and driver's license numbers of the putative class members as unnecessary to provide notice and unduly intrusive into the privacy of the putative class members.3 Defendant further notes that, depending on the size of any class authorized by the Court and the information Defendant is ordered to provide to Plaintiffs' counsel, Defendant may 2 In order to assure the integrity of the notice process, if notice via email is approved by the Court, Defendant asks that such notice be accomplished without any additional non-approved communication simply by attaching the approved notice to the email, with no text in the body of the email and/or subject line other than "Please see attached". 3 Ridley v. Regency Village, Inc., No. H-17-974, 2018 U.S. Dist. LEXIS 42541, at *23-24 (S.D. Tex. Mar. 15, 2018) (denying the plaintiffs' request for phone numbers, email addresses, and driver's license numbers); Miles v. Illini State Trucking Co., No. 3:16-CV-0778, 2017 U.S. Dist. LEXIS 3469, at *17 (N.D. Tex. Jan. 10, 2017) ("[T]he court concludes that names and last known addresses are sufficient information to allow Miles to contact potential class members without disclosing 'highly personal information about persons who may in fact have no interest in this litigation.' . . . the need for compelled disclosure of such data [is] outweighed by the privacy interests of potential class members") (internal citations omitted)); Garcia, 2015 U.S. Dist. LEXIS 50384 at *11 (denying plaintiffs' request for Social Security numbers, dates of birth, phone numbers and email addresses as inappropriate absent a showing that notices to those individuals had been returned as undeliverable); Altiep v. Food Safety Net Servs., Ltd., No. 3:14–CV–00642–K, 2014 U.S. Dist. 114835, at *14-15 (N.D. Tex. Aug. 18, 2014) (denying plaintiffs' request for telephone numbers and email addresses because "Plaintiffs have shown no reason that sending a letter to a potential plaintiff's last known address would provide inadequate notice"); Page v. Nova Healthcare Mgmt., LLP, No. H–12–2093, 2013 U.S. Dist. LEXIS 128981, at *23 (S.D. Tex. Aug. 14, 2013) (denying plaintiffs' request for telephone numbers "because of the highly private and sensitive nature of this information" and limiting production to potential plaintiffs' names and last known mailing addresses). To the extent that any such information is ordered to be disclosed, Defendant requests issuance of a Protective Order with "Attorneys' Eyes Only" protection, see, e.g., Appendix H to Local Court Rules for the Western District of Texas. 10 4849-9422-1721.5 7 be unable to provide the information requested within fourteen days of the Court's Order and requests that it be provided an additional fourteen days to provide such information. Defendant further objects to Plaintiffs' requested use of the potential class members' telephone numbers to issue notice via text message and to call potential class members to ensure that the notice was received. Sending a third notice by text message (after notice has also been mailed and sent via email) is not warranted, as Plaintiffs have made no showing that sending notice by both mail and email will be inadequate to inform potential class members of their right to join this lawsuit, and such notice could be misleading, absent the limitations of the Court- approved notice.4 Defendant also objects to Plaintiffs or their counsel calling potential plaintiffs to ensure that the notice or consent forms were received. This is unnecessary for notice, is unnecessarily intrusive and implicates serious privacy and ethical concerns. See, e.g., Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010) ("a postcard is not especially invasive (e.g., compared to a telephone call)."); In re Wells Fargo Wage & Hour Emp't Practices Litig., No. H- 11-2266, 2013 U.S. Dist. LEXIS 70040, at *9-10 (S.D. Tex. May 17, 2013) (denying the plaintiffs' request to send reminder notices via recorded telephone messages). Oral telephone communications between potential plaintiffs and attorneys, or those acting on behalf of attorneys, present potential ethical concerns. See, e.g., Harvey v. AB Electrolux, 857 F. Supp. 2d 4 Alverson v. BL Rest. Operations LLC, No. 5-16-CV-00849-OLG-RBF, 2018 U.S. Dist. LEXIS 43797, at *7 (W.D. Tex. Mar. 12, 2018) ("[N]otice via text message, in addition to the above delivery methods [of mail, email, and posting], is unwarranted at this juncture."); Bewley v. Accel Logistics, Inc., No. 3:17-CV-0676-S-BK, 2018 U.S. Dist. LEXIS 89124, at *14-16 (N.D. Tex. May 7, 2018) (denying the plaintiffs' request to send notice via email, text message and posting where the plaintiffs had failed to make any showing that sending notice by mail would be inadequate); Aguirre v. Tastee Kreme #2, Inc., No. H-11-2266, 2017 U.S. Dist. LEXIS 83944, *22-24 (S.D. Tex. Apr. 13, 2017) (finding "notice by text message is not warranted by the present circumstances. . . text messaging could be misleading. There is a risk that, unlike an email or letter, a text message would be incomplete, not provide a potential opt-in a full picture of the nature of the lawsuit or their rights and would not convey the seriousness of the communication."), report and recommendation adopted in part and rejected in part, 2017 U.S. Dist. LEXIS 83327 (S.D. Tex. May 31, 2017). 11 4849-9422-1721.5 7 815, 820 (D. Iowa Mar. 9, 2012) ("I believe that there are legitimate concerns with improper solicitation, even unintentional, and privacy that counsel against providing telephone numbers."); see also Bishop v. AT&T Corp., 256 F.R.D. 503, 509 (W.D. Penn. 2009); Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 939 (N.D. Ill. 2008). The Texas Disciplinary Rules of Professional Conduct limit telephone communications by, or on behalf of, attorneys in contacting prospective clients: "A lawyer shall not by in-person or telephone contact seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." TEX. DISCIPLINARY R. PROF'L CONDUCT 7.03. In light of the invasiveness of telephone calls and the potential for inadvertent ethical violations, "[t]he need for limitations on counsel contact with potential class members is strongest during the opt-in period, when potential plaintiffs must decide whether to join the litigation." McKnight v. D. Houston, Inc., No. H-09-3345, 2010 U.S. Dist. LEXIS 129634, *3 (S.D. Tex. Dec. 8, 2010). "Telephone calls raise issues of what was said during the call to a much greater degree than mailing or email." Ott, 298 F.R.D. at 553. "Because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties." Spence v. Irving Holdings, Inc., No. 3:10-cv-142, 2010 U.S. Dist. LEXIS 140329, at *4 (N.D. Tex. Dec. 15, 2010) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981)). To the extent, then, that the Court requires Defendant to produce potential class members' telephone numbers, Defendant requests that the Court's order prohibit telephone communications with prospective plaintiffs and/or include specific guidelines regarding how that 12 4849-9422-1721.5 7 information may be used, such as requiring the parties to confer regarding a proposed script to be used in making such calls. Additionally, Defendant objects to Plaintiffs' request for a second notice to be sent to class members, in whatever form, 30 days from when the approved notice is mailed. "The purpose of notice is simply to inform potential class members of their rights. Once they receive that information, it is their responsibility to act as they see fit." Byard v. Verizon W. Va., Inc., 287 F.R.D. 365, 373 (N.D. W. Va. 2012) (citations omitted) (discussing concerns that requested reminder notice will stir up litigation and inappropriately encourage putative plaintiffs to join the suit). Permitting such repeated contacts – especially if the Court permits the initial notice to potential class members to take place through more than one means of delivery, e.g., mail, email, text, phone, etc. – results in an exponentially larger number of duplicative/harassing notices to potential class members without any indication that they did not receive the initial notice(s). Defendant asks that Plaintiffs' request for a second notice be denied, in the absence of any indication that the initial notice was not received, such as the return of a notice mailed to a prospective class member as undeliverable. Finally, Defendant objects to Plaintiffs' inclusion in the "[Proposed] Order," attached to Plaintiffs' Motion as Exhibit 7, of the proposed prohibition against communications by Defendant, stating "The Court also ORDERS that Defendant is hereby prohibited form communicating directly or indirectly, with any Plaintiff or Putative Class Members about any matters which touch or concern the outstanding wage claims, or other matters related to this suit, during the pendency of this lawsuit. Defendant shall instruct all of its managers of the requirements of this Order." Likewise, Defendant objects to inclusion in Section 8 of the proposed notice, attached to Plaintiffs' Motion as Exhibit 6, of the statement "You should not 13 4849-9422-1721.5 7 contact Nixon. . . to discuss this matter." As recognized by several courts faced with similar requests, "A court may not limit communications 'without a specific record showing by the moving party of the particular abuses by which it is threatened.'" Vogt v. Tex. Instruments Inc., Civil Action No. 3:05-CV-2244-L, 2006 U.S. Dist. LEXIS 96515, at * 9 (N.D. Tex. Aug. 8, 2006) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981)). To justify such a ban, Plaintiffs "must at least present evidence that a potential likelihood for serious abuse exists." Vogt, 2006 U.S. Dist. LEXIS 96515 at *9-10; Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239, 244 (E.D. Tex. 1997) (Rule 23 context). In deciding whether such an order should issue, the Court should decide (1) "whether there is a need for a limitation on speech"; and (2) what appropriate limitations should be used, "in light of First Amendment concerns." Vogt, 2006 U.S. Dist. LEXIS 96515 at *11 (quoting Belt v. EmCare Inc., 299 F. Supp. 2d 664, 668 (E.D. Tex. 2003). See also Williams v. Sake Hibachi Sushi & Bar, Inc., Civil Action No. 3:18- CV-0517-D, 2018 U.S. Dist. LEXIS 162293, at *5 (N.D. Tex. Sept. 21, 2018). Here, there has been no showing of any inappropriate communications by Defendant with respect to this cause, and there can certainly be no reason to believe that a communication with Defendant would be any less appropriate than a communication with Plaintiffs or their counsel, which invitation is explicitly extended in Section 8 of the proposed notice. As a result, Defendant asks that these prohibitions on communications be stricken. III. CONCLUSION For the reasons set forth herein, Defendant requests that the Court deny Plaintiffs' Motion. In the alternative, Defendant requests that the Court grant the Motion only as those employed in the same positions as Declarants at the same locations at which Declarants worked and supervised by the same Supervisor. If the Court grants Plaintiffs' Motion in whole or in 14 4849-9422-1721.5 7 part, Defendant requests that the Court provide Defendant with the opportunity to propose a revised Notice in compliance with such order and, if the Court deems it necessary, additional briefing regarding Plaintiffs' proposed Schedule of Notice. Defendant further requests all other and further relief to which it is justly entitled. 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: rbissmeyer@dykema.com 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: evoss@dykema.com ATTORNEYS FOR DEFENDANT NIXON ENGINEERING, LLC 15 4849-9422-1721.5 7 CERTIFICATE OF SERVICE I hereby certify that on the 14th day of June 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 (clif@a2xlaw.com) Lauren E. Braddy (lauren@a2xlaw.com) Alan Clifton Gordon (cgordon@a2xlaw.com) Carter T. Hastings (carter@a2xlaw.com) George Schimmel (geordie@a2xlaw.com) ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 /s/ Ramon D. Bissmeyer Counsel for Defendant 16 4849-9422-1721.5