Peery v. Nixon Engineering,llc

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

Opposed MOTION to Certify Class by Jayme Peery. Motions referred to Judge Jeffrey C. Manske.

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7 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) ______________________________________________________________________________ PLAINTIFFS' OPPOSED MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO THE PUTATIVE CLASS MEMBERS TO THE HONORABLE ALAN D. ALBRIGHT: Plaintiff Jayme Peery, individually and on behalf all opt-in Plaintiffs and others similarly situated (hereinafter "Plaintiff and the Putative Class Members") file this Opposed Motion for Conditional Certification and Notice to the Putative Class Members, and will respectfully show the following1: I. INTRODUCTION The Fair Labor Standards Act ("FLSA") permits an employee to bring an action to recover wages owed to "himself. . . and other employees similarly situated." 29 U.S.C. § 216(b). With this Motion, Plaintiff seeks conditional certification of a collective action consisting of: "All Current and 1 Plaintiff has also brought claims arising under the state laws of Texas, which qualify as Federal Rule of Civil Procedure 23 class actions. Plaintiff moves only for conditional certification under FLSA section 216(b), and not Rule 23 class certification, at this time. Page 1 of 17 7 Former Hourly Employees Who Worked for Nixon Engineering, LLC At Any Time In The Past Three Years Through The Final Disposition of This Matter." ("Putative Class Members"). Conditional certification is appropriate here because the current and former employees that Plaintiff seeks to represent hourly employees who performed similar job duties, were all subject to the same company-wide pay policy, and suffered a common injury. Because, as will be shown in greater detail below, Plaintiff has met the lenient standard for conditional certification, he respectfully requests that this Court conditionally certify this case as a collective action and authorize notice to the class of Hourly Employees who are owed overtime wages. Notice at this stage is critical so that these workers can make an informed decision about whether to join this suit and stop the statute of limitations from running on their claims for unpaid overtime compensation.2 Accordingly, Plaintiff respectfully requests that the Court grant this Motion and: (1) conditionally certify this action for purposes of notice and discovery; (2) order that a judicially approved notice be sent to all Putative Class Members by mail, e-mail, and text-message and that Plaintiff's counsel be allowed to post the approved notice and consent form on their website; (3) approve the form and content of Plaintiff's proposed judicial notice and reminder notice; (4) order Defendant Nixon Engineering, LLC to produce to Plaintiff's counsel the name, last known address, phone number, e-mail address and dates of employment for each of the Putative Class Members in a 2 Unlike Rule 23 class actions in which the statute of limitations is tolled for all potential class members with the filing of the complaint, the statute of limitations under the FLSA is not tolled with the commencement of the action or even with an order granting conditional certification. Fisher v. Michigan Bell Telephone Co., C.A. 2:09-cv-10802, 2009 WL 3427048, at *8 (E.D. Mich. Oct. 22, 2009). Rather, the statute of limitations continues to run on each individual's claim until they file their written consent to join the action with the court. Id.; see also 29 U.S.C. § 216(b) ("No employee shall be a party Plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."). Although the notice process does not stop the statute of limitations, it does, at a minimum, notify the potential class members of the case, and that the statute of limitations is running on their claims. Fisher, 2009 WL 3427048, at *8 (citing Hoffmann-La Roche, 493 U.S. at 170). Page 2 of 17 7 usable electronic format; and (5) authorize a sixty (60) day notice period for the Putative Class Members to join this case. II. STATEMENT OF FACTS Nixon Engineering, LLC ("Nixon") is a full-service traffic control company that serves the Texas Department of Transportation ("TX DOT"), local municipalities, and private organizations all over Texas.3 Nixon manages and controls traffic during roadway projects. To provide these services, Nixon employs hundreds of Hourly employees–including Plaintiff and the Putative Class Members– who assist in traffic management by setting up traffic cones, flagging and directing traffic, setting up rumble strips and setting up traffic signs.4 While exact job titles may differ, these employees were subjected to the same or similar illegal pay practice for similar work. See generally Declaration ("Decl.") of Jayme Peery (attached as Exhibit 1 to this Motion); Decl. of Vernon Heath III (Ex. 2); Decl. of Ashton Neal (Ex. 3); Decl. of John Swinner (Ex. 4); and Decl. of William Swinner (Ex. 5). Plaintiff and the Putative Class Members performed similar work, held similar positions, had similar job requirements, were compensated in a similar manner, and suffered a common injury due to Nixon's compensation policy. Plaintiff and the Putative Class Members all assisted in the control and management of roadway traffic, they deployed traffic cones, traffic signs, and flagged vehicles around the traffic project. Exs. 1–5, at ¶ 3. Whether an employee was a driver, flagger, crew lead, or other similarly titled employee they all performed the same essential duties, manage and control traffic around roadway projects. Id. Plaintiff and the Putative class Members were all paid an hourly wage. Id., at ¶ 16. Plaintiff and the Putative Class Members all worked forty (40) or more hours per week. Id., at ¶ 4. 3 http://nixon-engineering.com/ww2/ 4 See id. Page 3 of 17 7 Plaintiff and the Putative Class Members had similar job requirements. Plaintiff and the Putative Class Members were required to meet at a central meeting spot (usually a hotel where the crew lead was staying) before beginning the day's work. Id., at ¶ 7. Nixon required them to perform vehicle inspections and inventory checks before the employees left their meeting spot to head to the TX DOT office. Id., at ¶¶ 7–8. Plaintiff and the Putative Class Members were required to clean up all of the equipment used each day and to store it in the Nixon trucks before they could leave the work site. Id., at ¶¶ 11–12. After cleaning up the work site, Plaintiff and the Putative Class Members were required to refuel the vehicle and perform a post-route vehicle inspection once they returned to their morning meeting site. Id., at ¶ 13. Finally, Plaintiff and the Putative Class Members were required to ensure all of their equipment is safely secured in the Nixon truck before Nixon allowed them to leave and go home for the day. Id. The Plaintiff and Putative Class Members all suffered a common injury from Nixon's compensation policy. Nixon only pays Plaintiff and the Putative Class Members for the hours reported in the TX DOT work logs. Id., at ¶¶ 9, 11. Nixon did not keep its own record of hours worked by its employees and did not compensate its employees for the actual hours they worked. Id., at ¶¶ 4, 9, 14. The records submitted by TX DOT to Nixon are not meant to record all the hours worked by Nixon employees, only the hours Nixon employees spent with TX DOT employees. See id., at ¶¶8–11. Plaintiff and the Putative Class Members were only clocked in once they reached the TX DOT office. Id., at ¶ 9. This means, the morning vehicle inspection, inventory check, and drive to the TX DOT office were all performed "off-the-clock." Id. Once TX DOT employees end the day's work on-site, they mark on their records–the records Nixon bases payable hours on–that the day is over and everyone is "clocked-out." Id., at ¶ 11. This happens despite the fact that Plaintiff and the Putative Class Members frequently spent a large amount of time picking up their equipment, as required by Nixon, after the TX DOT crew had marked they were finished for the day. Id., at ¶ 12. Because the Page 4 of 17 7 reports submitted by TX DOT only indicate when TX DOT employees finish, Plaintiff and the Putative Class Members are not paid for the time they spent picking up their equipment, the time spent driving back to the morning meeting spot, the time spent refueling the truck, the time spent performing the post-route vehicle inspection, and the time spent performing the last inventory check. Id., ¶¶ 11–15. All of these harms stem from the same legal nexus, Nixon's pay policy and lack of accurate record keeping. Nixon's policy and practice of paying only for the hours the roadway project is being worked on by TX DOT employees, described above, applied (and continues to apply) to all Plaintiffs and Putative Class Members and evinces Nixon's systemic failure to comply with the recordkeeping and overtime requirements of Section 207 of the FLSA. III. ARGUMENT AND AUTHORITY A. LEGAL STANDARD FOR SECTION 216(b) NOTICE TO PUTATIVE CLASS MEMBERS The FLSA's "collective action" provision allows one or more employees to bring an action for overtime compensation on "behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). District courts have broad discretion to allow a party asserting FLSA claims on behalf of others to notify putative class members that they may choose to "opt-in" to the suit. See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Court-authorized notice protects against "misleading communications" by the parties, resolves the parties' disputes regarding the content of any notice, prevents the proliferation of multiple individual lawsuits, assures joinder of additional parties is accomplished properly and efficiently, and expedites resolution of the dispute. Id. at 170–72. Under Section 216(b), an employee need only show that he is suing his employer for himself and on behalf of other employees "similarly situated." Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213– 16 (5th Cir. 1995) (overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. Page 5 of 17 7 2148, 156 L.Ed.2d 84 (2003)); Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996), cert. denied, 117 S. Ct. 435 (1996). Indeed, plaintiff's claims need not be identical to the potential opt-ins, they need only be similar. Grayson, 79 F.3d at 1096 (emphasis added); Tice v. AOC Senior Home Health Corp., 826 F. Supp. 2d 990, 995–96 (E.D. Tex. 2011) ("The court need not find uniformity in each and every aspect of employment to determine a class of employees are similarly situated under § 216(b)."). Indeed, plaintiff needs only to demonstrate "a reasonable basis" for the allegation that a class of similarly situated persons may exist. Vaughn v. Document Grp. Inc., 250 F. Supp. 3d 236, 239 (S.D. Tex. 2017); Cruz v. ConocoPhillips, 208 F. Supp. 3d 811, 816 (S.D. Tex. 2016). B. THIS COURT FOLLOWS THE TWO-STAGE LUSARDI APPROACH IN ISSUING NOTICE TO PUTATIVE CLASS MEMBERS This Court applies the two-step approach to determine whether plaintiffs are "similarly situated" to the potential plaintiffs. English v. Texas Farms Bureau Bus. Corp., No. CIV.A. H-11-0214, 2011 WL 2193378, at *2 (W.D. Tex. Mar. 29, 2019); Ferguson v. Texas Farm Bureau Bus. Corp., No. 6:17- cv-111-RP, 2018 WL 1392704, at *2 (W.D. Tex. Mar. 20, 2018). Under the Lusardi approach, the Court "determines whether the putative class members' claims are sufficiently similar" to authorize notice to potential class members. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2000) (citing Mooney, 54 F.3d 1213–14); see also Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 512 (W.D. Tex. 2015). At the "notice stage" of the Lusardi analysis the evidentiary standard is lenient and requires "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Laney v. Redback Energy Servs., LLC, 285 F. Supp. 3d 980, 984 (W.D. Tex. 2018) (quoting Mooney, 54 F.3d at 1214 n.8). Because the first step takes place prior to the completion of discovery, the standard for notice "is a lenient one." Mooney, 54 F.3d at 1214; English, 2019 WL 2112275, at *3; Dyson, 308 F.R.D. at 512. Page 6 of 17 7 The lenient standard at the notice stage typically results in conditional certification "usually considering only the pleadings and submitted affidavits[.]" English, 2019 WL 2112275 at *3; Pedigo v. 3003 S. Lamar, LLP, 666 F. Supp. 2d 693, 697 (W.D. Tex. 2009). A plaintiff satisfies the "fairly lenient standard" by showing that (1) there is a reasonable basis for crediting the assertions 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) that those individuals want to opt-in to the lawsuit. Laney, 285 F. Supp. at 985. It is important to note that the plaintiff's claims and positions need not be identical to the potential opt-ins' claims, only similar. Grayson, 79 F.3d at 1096; Contreras, et al. v. Land Restoration LLC, et al. No. 1:16-cv-883-RP, 2017 WL 663560, at *6 (W.D. Tex. Feb. 17, 2017). Indeed, as one district court in the Fifth Circuit noted: "the court need not find uniformity in each and every aspect of employment to determine [that] a class of employees is similarly situated. The remedial nature of the FLSA and Section 216 militate strongly in favor of allowing cases to proceed collectively." Tolentino v. C&J Spec-Rent Services, Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (citing Albanil v. Coast 2 Coast, Inc., No. H-08-486, 2008 WL 4937565, at *3 (S.D. Tex. Nov. 17, 2008)); see also Gomez v. Loomis Armored US, LLC, No. SA-16-CA-00931-DAE, 2017 WL 2999422, at *3 (W.D. Tex. Apr. 3, 2017). Further, a plaintiff only needs to demonstrate "a reasonable basis" for the allegation that a class of similarly situated persons exists. Grayson, 79 F.3d at 1097; see also Dyson, 308 F.R.D. at 513 (Pitman, J.) (finding declaration of single plaintiff and one co-worker sufficient to grant conditional certification); Nabarrette v. Propetro Servs., Inc., No. MO:15-cv-00211-RAJ, 2016 WL 7616717, at *3 (W.D. Tex. Apr. 4, 2016) (Junell, J.) (finding plaintiff's declaration sufficient to support conditional certification); Villatoro v. Kim Son Restaurant, 286 F. Supp. 2d 807, 810–11 (S.D. Tex. 2003) (Atlas, J.) (one declaration plus employer documents sufficient to grant conditional certification). Once the Court determines that the employees are similarly situated, notice is sent, and new plaintiffs may "opt-in" to the lawsuit. Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1214). Page 7 of 17 7 Ultimately, allowing early notice and full participation by the opt-ins "assures that the full 'similarly situated' decision is informed, efficiently reached, and conclusive." Sperling, 118 F.R.D. at 406. Once the notice and opt-in period is complete, the Court will have the benefit of knowing the actual makeup of the collective action. Thus, early notice helps courts to manage the case because it can "ascertain the contours of the action at the outset." Hoffmann-La Roche, 493 U.S. at 172. At the second, or "decertification stage," of the Lusardi approach, the defendant typically files a motion to decertify after the end of the opt-in period, and after discovery is largely complete and the court makes a factual determination on the similarly situated question. See Dyson, 308 F.R.D. at 512–13. In this second stage, once discovery is complete, the Court reassesses whether the class members are similarly situated and fully evaluates the merits of the class certification. Snively v. Peak Pressure Control, LLC, 314 F. Supp. 3d 734, 738 (W.D. Tex. 2018). "At [the decertification] stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question." Id. (citing Mooney, 54 F.3d at 1214). C. NOTICE IS APPROPRIATE ON THE FACTS PRESENTED BECAUSE PLAINTIFF AND THE PUTATIVE CLASS MEMBERS ARE SIMILARLY SITUATED To determine if notice should be issued, courts look at the similarity of job requirements and pay provisions for the potential plaintiffs and look to see whether they appear to be victims of a common policy or plan. Laney, 285 F. Supp.3d at 985; Butler v. City of San Antonio, No. SA-03-CA-170- RF, 2003 WL 22097250, at *1–2 (W.D. Tex. Aug. 21, 2003); Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) ("the presence of a single decision, policy, or plan is often good evidence that employers are similarly situated"). Proof of such a practice or common violation can be provided through declarations of potential plaintiffs, identification of potential plaintiffs, and/or evidence of a widespread plan. Dreyer, 2008 WL 5204149, at *3 (internal citations omitted). In addition to these factors, some courts consider whether other individuals desire to opt-in and are similarly situated to those bringing the suit. Pedigo, 666 F. Supp. 2d Page 8 of 17 7 at 698 ("The joinder of additional plaintiffs after the inception of the case is persuasive evidence that a putative class does exist); Mateos v. Select Energy Servs., LLC, 977 F. Supp. 2d 640, 645 (W.D. Tex. 2013); Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 1567–68 (11th Cir. 1991). Importantly, granting company-wide certification is appropriate where "there is a reasonable basis to conclude that the same policy applies to multiple locations of a single company." Alverson v. BL Rest. Operations LLC, No. 5:16-cv-00849-OLG-RBF, 2017 WL 5491998, at *5 (W.D. Tex. Nov. 15, 2017) (quoting, Rueda v. Tecon Servs., Inc., No. CIV.A. H-10-4937, 2011 WL 2566072, at *4 (S.D. Tex. Jun. 28, 2011). "If there is a reasonable basis to conclude that the same policy applies to multiple locations of a single company, certification is appropriate." Rueda, 2011 WL 2566072, at *4. 1. There Is a Reasonable Basis for Crediting Plaintiffs' Assertion that Other Aggrieved Individuals Exist. To satisfy the first element of the test that this Court applies to the initial notice stage of the Lusardi analysis, Plaintiffs need only show that there is a reasonable basis for believing that other aggrieved individuals exist. See Laney, 285 F. Supp. 3d, at 985. Here, Plaintiff has attached five declarations from other hourly employees asserting that they were not paid for all of their hours worked, including hours worked over forty in a workweek. See Exs. 1–5, ¶¶ 4–19. The attached declarations also uniformly state that they know other similarly situated current and former co-workers would be interested to learn about their rights and the opportunity to join this lawsuit. Exs. 1–5, ¶ 20. In addition to the five declarations, to date eight (8) additional plaintiffs have filed their written consent to opt-in to this litigation. See ECF Nos. 14 and 22. As such, Plaintiff has satisfied the first element of the applicable test by showing that there is a reasonable basis for this Court to determine that other aggrieved individuals exist who worked as hourly employees, nationwide. See Laney, 285 F. Supp. 3d, at 985. 2. Other Aggrieved Individuals are Similarly Situated to Plaintiff Page 9 of 17 7 A plaintiff must also demonstrate a reasonable basis for believing that a class of similarly situated persons exists to satisfy the second element of the test that this Court applies at the initial notice stage of the Lusardi analysis. Id. Typically, similarly situated can be shown, "by similarity of job requirements and pay provisions for the potential plaintiffs, and whether they appear to be victims of a common policy or plan." Id. Here, Plaintiff and Putative Class Members perform the same type of work for Nixon—they work together to manage road traffic. See Exs. 1–5, ¶¶ 3. It is also true that Plaintiff and the Putative Class Members were all paid the same way as they all receive an hourly rate. See id., ¶ 16. Most importantly, however, Plaintiff and Putative Class Members are all uniformly subject to Nixon's corporate pay policy that does not accurately account for the actual number of hours worked by its employees. See id., ¶¶ 7–19. Because all hourly employees are only paid according to the number of hours reported by TX DOT, Nixon's pay policy inflicts common injury onto all hourly employees. The fact that Nixon does not record or account for all hours worked by its non-exempt hourly employees, regardless of, where they worked, how long they worked, or any other individualized factors further demonstrates that all hourly employees are similarly situated for purposes of conditional certification. See Aguilar v. Complete Landsculpture, Inc., No. 3:04-cv-0776-D, 2004 WL 2293842, at *4 (N.D. Tex. Oct. 7, 2004) ("The claims of the putative class members are similar in that … they were compensated under the same regimen. Thus, under plaintiffs' theory of the case, the fact that [they] had somewhat different duties and rates of pay is immaterial."); Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 522 (N.D. Tex. 2014) ("Because it appears from the record developed thus far that the employees' job classifications, descriptions, or duties do not affect any of the facts material to plaintiffs' claim, these differences are not sufficient to defeat conditional certification"); See also Kilmon v. Saulsbury Industries, Inc., No. MO:17-cv-00099-RAJ, 2017 WL 7052328, at *3 (W.D. Tex. Dec. 13, 2017) (certifying a class of all hourly employees where the common scheme or policy Page 10 of 17 7 affected all hourly employees regardless of job title); Flores v. Unity Disposal & Recycling, LLC, No. 8:15- cv-00196-WGC, 2015 WL 1523018, at *3–4 (D. Md. Apr. 2, 2015) (Connelly, J.) (conditionally certifying a class of similarly situated sanitation workers who were victimized by defendant's company- wide policy whereby they were paid a flat day rate without proper overtime compensation); Cardenas v. AAA Carting, No. 7:12-cv-07178-VB-LMS, 2013 WL 4038593, at *1-2 (S.D.N.Y. Aug. 9, 2012) (Smith, J.) (conditionally certifying a class of similarly situated carting and/or sanitation workers where plaintiffs sufficiently alleged a company-wide policy of, inter alia, requiring employees to work more than forty hours per week without proper overtime compensation); see also Wellman v. Grand Isle Shipyard, Inc., No. CIV.A. 14-831, 2014 WL 5810529, at *4 (E.D. La. Nov. 7, 2014) ("The alleged 'straight time for overtime' policy constitutes a 'factual nexus which binds the named plaintiffs and the potential class members together.'"); Nederland v. Caribou Coffee Co., Inc., 564 F. Supp. 2d 1010, 1023–24 (D. Minn. 2007) (holding company's "all or nothing" approach to exemption analysis of store managers counseled in favor of finding plaintiffs were similarly situated). In this case, Plaintiff has more than met the lenient standard of showing that notice to the Putative Class Members is appropriate. Specifically, since the filing of the lawsuit, eight (8) additional hourly employees who worked across the State of Texas filed their consents to join this collective action.5 Plaintiff and the Putative Class Members are all non-exempt employees who perform similar daily tasks, are paid in the same way, regularly work more than forty (40) hours a week, and are subjected to the same FLSA violation as a result of Nixon's corporate policy, Plaintiff asks this Court to determine that Plaintiff and the Putative Class Members are similarly situated and order that notice issue to advise the Putative Class Members of their claims. D. THE STATUTE OF LIMITATIONS IS RUNNING ON PUTATIVE CLASS MEMBERS' VALUABLE AND VIABLE CLAIMS 5This Court is well within its authority to issue notice based on this fact alone. Shaffner v. Cash Register Sales & Serv. of Houston, Inc., No. H-05-2064, 2006 WL 1007542, at *1 (S.D. Tex. Apr. 17, 2006). Page 11 of 17 7 Unlike Rule 23 class actions in which the statute of limitations is tolled for all putative class members with the filing of the lawsuit, the statute of limitations under the FLSA is not tolled with the commencement of the action or even with an order granting conditional certification. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916–17 (5th Cir. 2008) (citing Atkins v. Gen. Motors Corp., 701 F.2d 1124, 1130 n.5 (5th Cir. 1983). Rather, the statute of limitations continues to run on each individual's claim until they file their written consent to join the action with the court. Id.; see also 29 U.S.C. § 216(b) ("No employee shall be a party Plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."). Sandoz, 553 F.3d, at 916–17. V. RELIEF SOUGHT Plaintiff seeks the issuance of notice to all Putative Class Members and the disclosure of the names and contact information (including the addresses, e-mail addresses and telephone numbers) of all hourly employees employed by Nixon, at any time in the past three years from the filing of this motion through the final disposition of this matter. A. PLAINTIFF'S PROPOSED SCHEDULE AND NOTICE/CONSENT FORM To facilitate the notice process and preserve the rights of those who have not yet opted-in (or learned of this lawsuit), Plaintiff has attached a proposed Notice and Consent form to be approved by the Court. See Ex. 6. This form is based on various Notice and Consent forms previously approved by courts within the Western District of Texas, though it has been modified for this particular case. Plaintiff seeks to notify a group of potential plaintiffs described as follows: ALL CURRENT AND FORMER HOURLY EMPLOYEES WHO WORKED FOR NIXON ENGINEERING, LLC AT ANY TIME IN THE PAST THREE YEARS THROUGH THE FINAL DISPOSITION OF THIS MATTER. Additionally, Plaintiff seeks an Order from this Court adopting the following schedule: Page 12 of 17 7 DEADLINE SUBJECT Defendant to disclose the names, addresses, e- mail addresses, telephone numbers, dates of 14 Days from Order Approving Notice to employment, dates of birth, and driver's license Putative Class Members numbers of the Putative Class Members in a usable electronic format. Plaintiff's counsel shall send by mail, e-mail, and text-message the Court-approved Notice and 21 Days from Order Approving Notice to Consent Form to the Putative Class Members. Putative Class Members Defendant shall post a copy of the Notice and Consent Form at all job sites. The Putative Class Members shall have 60 days to return their signed Consent forms for filing 60 Days from Notice is Mailed to Putative with the Court. Class Members Defendant may take down the posted Notice and Consent Form. Plaintiff's Counsel is authorized to send by mail, e-mail, and text-message a second identical copy of the Notice/Consent Form to the Putative 30 Days from Notice is Mailed to Putative Class Members reminding them of the deadline Class Members for the submission of the Consent forms. Plaintiff's Counsel is authorized to call Putative Class Members to ensure the Consent forms were received. B. COURTS ROUTINELY REQUIRE THE PRODUCTION OF PERSONAL CONTACT INFORMATION FOR THE NOTICE PROCESS Plaintiff proposes that the Notice and Consent forms be mailed via First Class Mail, e-mail, and text-message to all current and former hourly employees who worked for Nixon Engineering, LLC at any time during the past three years through the present. E-mail notice is a common form of notification in FLSA cases and is routinely granted by courts in the Fifth Circuit and across the United Page 13 of 17 7 States. See Page v. Crescent Directional Drilling, L.P., No. 5:15-cv-193-RP, 2015 WL 12660425, at *3 (W.D. Tex. Dec. 10, 2015) ("Email is not the wave of the future; [it] is the wave of the last decade and a half[.]"); Wade v. Furmanite Am., Inc. No. 3:17-cv-00169, 2018 WL 2088011, at *6–7 (S.D. Tex. May 4, 2018) (disagreeing "strongly" with the defendants' position that "first-class mail alone is sufficient to ensure that potential plaintiffs receive notice"). It is common knowledge that "[t]oday, millions of Americans rely on email as their primary method for communication." See Wade, 2018 WL 2088011, at *6–7 (recognizing that first-class mail, like the Pony Express, telegrams, and the fax machine before it, is probably soon to be considered a "relic of a bygone era"). To further quote Magistrate Judge Edison, When playing darts, one has a much better chance of hitting a bull's-eye if he uses more than one dart. The same reasoning applies here. Utilizing two means of delivery—first class mail and email—is more likely to result in the potential plaintiffs receiving notice of the lawsuit than by a single delivery method. Id. at *7 (recognizing that social networking might soon replace email as the most effective means of reaching potential class members). Sending notice by email therefore effectuates the broad remedial purpose of the FLSA by facilitating notice to members of the putative class. Jones, 149 F. Supp. 3d at 775–76. Courts within the 5th Circuit grant notice via text-message as well, particularly where putative class members are away from their homes for long periods of time. Butler v. TFS Oilfield Servs., LLC, No. SA-16-cv-1150-FB, 2017 WL 7052879, at *7 (W.D. Tex. Sept. 26, 2017); Sanchez v. R&R Multi- Trade Constr. Servs., LLC, No. 4:17-cv-469-ALM-KPJ, 2018 WL 6582825, at *5 (E.D. Tex. Oct. 25, 2018), report and recommendation adopted, No. 4L17-cv-469, 2018 WL 6075793 (E.D. Tex. Nov. 21, 2018). Plaintiff believes text-message is highly appropriate in this case because employees of Nixon frequently spend time away from their home at work sites in various parts of Texas and although they may not have access to US postal mail or their email, they will have their cell phones with them. Butler, Page 14 of 17 7 2017 WL 7052879, at *7. Plaintiff proposes sending a text-message link that will redirect Putative Class Members to a webpage containing the full Court authorized Notice and Consent Form. Plaintiff's counsel will oversee the dissemination of such notices and pay the up-front charges. All Putative Class Members interested in joining this lawsuit would be required to return their respective consent form to Plaintiff's counsel for filing with this Court within sixty (60) days of the initial mailing of the Notice and Consent forms. VI. CONCLUSION Plaintiff has more than met their burden to show that other similarly situated individuals exist and are interested in asserting their claims. In order to facilitate the purposes of the FLSA's collective action provisions, Plaintiff respectfully requests that the Court grant this Motion and: (1) conditionally certify this action for purposes of notice and discovery; (2) order that judicially-approved notice be sent to all Putative Class Members; (3) approve the form and content of Plaintiff's proposed judicial notice and reminder notice; (4) order Nixon to produce to Plaintiff's counsel the contact information (including the names, address, telephone number and e-mail address) for each Putative Class Member in a usable electronic format; (5) authorize a 60-day notice period for Putative Class Members to join the case; and (6) authorize notice to be sent via First Class Mail, e-mail, and text-message to the Putative Class Members. Page 15 of 17 7 Date: June 7, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Federal I.D. No. 1138436 Texas Bar No. 24064805 clif@a2xlaw.com Lauren E. Braddy Federal I.D. No. 1122168 Texas Bar No. 24071993 lauren@a2xlaw.com Alan Clifton Gordon Federal I.D. No. 19259 Texas Bar No. 00793838 cgordon@a2xlaw.com Carter T. Hastings Federal I.D. No. 3101064 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 Putative Class Members Page 16 of 17 7 CERTIFICATE OF CONFERENCE I hereby certify that Plaintiff's counsel has conferred with Defendant's counsel and they are opposed to the relief requested in this Motion. /s/ Clif Alexander Clif Alexander CERTIFICATE OF SERVICE I hereby certify that on June 7, 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 Page 17 of 17