Peery v. Nixon Engineering,llc

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

MOTION for Clarification and/or Modification of Order Adopting Magistrate Judge's Report and Recommendation re [33] Order Adopting/Rejecting Report and Recommendations, [32] Report and Recommendations by Nixon Engineering, LLC. Motions referred to Judge Jeffrey C. Manske.

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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 § 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 MOTION FOR CLARIFICATION AND/OR MODIFICATION OF ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") and files this its Motion for Clarification and/or Modification of the Court's Order Adopting Magistrate Judge's Report and Recommendation as to Plaintiff's Motion for Conditional Certification and Notice to the Putative Class Members, and in support thereof, respectfully states as follows: BACKGROUND On August 29, 2019, Magistrate Judge Jeffrey C. Manske issued the Report and Recommendation [ECF No. 32] in which he ordered that Plaintiff's Motion for Conditional Certification and Notice to the Putative Class Members be granted in part and denied in part. On December 19, 2019, United States District Judge Alan D. Albright entered the Order Adopting Magistrate Judge's Report and Recommendation [ECF No. 33] (the "Order"), defining the Putative Class Members as follows: All current and former hourly-paid workers employed by Defendant between June 2016 and the present who were traffic-management employees working at roadway projects throughout the state of Texas, whose monetary compensation 4838-4458-4624.1 consisted of hours reported in TxDOT work logs, and who executed a "Confidentiality, Nondisclosure, Non-solicitation, Non-Competition and Inventions Agreement" with Defendant. Order Adopting Magistrate Judge's R. & R. [ECF No. 33] at 2. Prior to Judge Manske's Report and Recommendation, Nixon amended its "Confidentiality, Nondisclosure, Non Solicitation, Non Competition, and Inventions Agreement" (the "Revised Confidentiality Agreement") to include a Collective Action Waiver, which states as follows: By initiating or continuing the employment relationship after the Effective Date, the parties: (1) agree that no dispute shall be certified as a class, collective or other mass action, or on a basis involving claims brought in any purported representative capacity on behalf of current or former employees, applicants or other persons similarly situated; (2) agree that no arbitration proceeding under this Agreement shall be consolidated with, or joined in any way with, any other arbitration proceeding, absent the consent of all parties to the matter(s) to be consolidated or joined; and (3) waive any right to participate in a class, collective or other mass action or any representative proceeding and agree to pursue any claims on an individual basis.1 The Revised Confidentiality Agreement was executed by individuals hired on or after July 21, 2019; individuals who were hired before that date and who have remained employed by Nixon were not required to sign the Revised Confidentiality Agreement. Nixon has represented to its counsel that all new employee hired on or after July 21, 2019 have executed the Revised Confidentiality Agreement containing the Collective Action Waiver. ARGUMENT "The general purpose of a motion for clarification is to explain or clarify something ambiguous or vague, not to alter or amend." United States v. Philip Morris USA, Inc., 793 F. Supp. 2d 164, 168 (D.D.C. 2011). The Court's Order and the Magistrate Judge's Report and 1 A true and correct sample Confidentiality, Nondisclosure, Non Solicitation, Non Competition, and Inventions Agreement is attached hereto as Exhibit A. See Ex. A at 5. 4838-4458-4624.1 2 Recommendation defining the Putative Class were based on a previous version of Nixon's "Confidentiality, Nondisclosure, Non Solicitation, Non Competition, and Inventions Agreement" which did not include a Collective Action Waiver. See Def.'s Resp. in Opp'n to Pls.' Opposed Mot. for Conditional Certification [ECF No. 28] at Ex. C (ECF No. 28-3 at 4-5). Nixon seeks clarification and/or modification of the Court's Order in light of the fact that a number of individuals who would otherwise be included in the Order's definition of Putative Class Members have waived their right to proceed collectively. Accordingly, Nixon requests that the Court clarify and/or modify its Order to state that individuals who have executed the Revised Confidentiality Agreement are not Putative Class Members. Exclusion of those individuals who have executed the Revised Confidentiality Agreement is appropriate as they have waived their right to participate collectively and, therefore, they will ultimately not be eligible to participate in the pending lawsuit. In In re JPMorgan Chase & Co., the Fifth Circuit held that the Court for the Southern District of Texas had erred in conditionally certifying a collective action and authorizing notice to a class that included a large number of individuals who had waived their right to proceed collectively by signing binding arbitration agreements containing waivers of class and collective action. 916 F.3d 494, 498 (5th Cir. 2019). The Supreme Court has ruled that courts are required to enforce arbitration agreements that waive collective-action procedures for employees. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619, 200 L.Ed. 2d 889 (2018). Accordingly, in JPMorgan Chase, the Fifth Circuit held "that district courts may not send notice to an employee with a valid arbitration agreement unless the record shows that nothing in the agreement would prohibit that employee from participating in the collective action." Id. at 501. To "alert[] those who cannot ultimately participate in the collective" is inappropriate, as it "'merely stirs up litigation.'" Id. at 502 (quoting Hoffman-La 4838-4458-4624.1 3 Roche Inc. v. Sperling, 492 U.S. 165, 174 (1989)). To ensure that notice of this lawsuit is sent only to those who will ultimately be able to participate, individuals who have waived their right to engage in collective and class actions should be excluded from the Order's definition of Putative Class Members. PRAYER For the reasons explained herein, Nixon respectfully requests that the Court clarify and/or modify its Order Adopting Magistrate Judge's Report and Recommendation to state that individuals who have executed the Revised Confidentiality Agreement are not Putative Class Members and that Nixon is not required to provide Plaintiff's counsel with the full name, last known address, telephone number, and e-mail address of such individuals.2 Respectfully submitted, /s/ Ramon D. Bissmeyer Ramon D. Bissmeyer Texas 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 Texas 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 2 By the end of the day on January 2, 2020, Nixon will provide Plaintiff's counsel with the full name, last known address, telephone number, and e-mail address of each Class member who executed the previous version of the Confidentiality Agreement, which did not include a Collective Action Waiver. 4838-4458-4624.1 4 CERTIFICATE OF CONFERENCE On January 2, 2020, counsel for Defendant conferred by telephone with counsel for Plaintiffs regarding this Motion and provided a copy of the Revised Confidentiality Agreement by email for review by counsel by Plaintiffs. Counsel for Plaintiffs has not contacted counsel for Defendant to indicate whether or not Plaintiffs are opposed to this Motion and, on this basis, Defendant assumes that Plaintiffs are opposed. /s/ Elizabeth A. Voss Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that on January 2, 2020, 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: William Clifton 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 4838-4458-4624.1 5