Bocage v. M-I, L.L.C.

Filing 31

ORDER AND REASONS granting 17 Motion for Leave to File an Amended Complaint. Signed by Magistrate Judge Janis van Meerveld on 3/7/2018. (Reference: 17-6124)(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEREMY BOCAGE

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VERSUS

M-I, L.L.C.
Applies to 17-6124
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CIVIL ACTION NO. 17-6124
C/W 17-15074
SECTION: “R”(1)
JUDGE SARAH S. VANCE
MAGISTRATE JUDGE
JANIS VAN MEERVELD

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ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Leave to File an Amended Complaint. (Rec. Doc.
17). For the following reasons, the Motion is GRANTED.
Background
Plaintiff Jeremy Bocage filed this lawsuit under the Fair Labor Standards Act (“FLSA”),
seeking to recover unpaid overtime wages from defendant M-I, L.L.C. d/b/a M-I SWACO (“MI”) on June 24, 2017. He purported to assert a collective action on behalf of himself and others
similarly situated. In his original Complaint, he alleges that he was employed as a drilling fluid
specialist with M-I from approximately April 2011 through May 2016. His duties were to ensure
the properties of the drilling fluid are within designed specifications. He submits that drilling fluid
specialists at M-I regularly work in excess of 40 hours per week, but they are not paid at one and
a one-half times their regular rate of pay for excess time. Instead, he complains, he and other
drilling fluid specialists are paid a fixed sum that does not account for the hours worked.

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M-I filed a motion to dismiss, arguing that Bocage had waived his right to assert a class or
collective action in a Waiver and Release he executed on June 15, 2016. 1 On September 19, 2017,
the parties jointly notified the court of their agreement that M-I’s motion to dismiss be granted and
that an order be entered dismissing Bocage’s collective action claims and stating that “this matter
shall proceed as an action brought solely by the plaintiff, Jeremy Bocage.” The District Judge
entered the requested order the next day. M-I filed its answer. Among its defenses, M-I asserts that
Bocage is exempt from the FLSA’s overtime requirements as a highly compensated employee,
under the executive exemption, under the professional exemption, under the administrative
exemption, under the outside sales exception, under the Motor Carrier Act exemption, and under
the combination exemptions.
On December 12, 2017, Bocage’s case was consolidated with a putative collective action
under the FLSA against M-I filed by six plaintiffs represented by the same attorneys as Bocage.
See Coder v. M-I, L.L.C., Civ. A. No. 17-15074 (E.D. La. Dec. 6, 2017). The Complaint in this
second action is nearly identical to Bocage’s complaint. Plaintiffs in this second action reside in
Louisiana, Mississippi, Colorado, and Texas. M-I has responded to this action by filing a motion
to dismiss the claims of the non-Louisiana plaintiffs for lack of personal jurisdiction.
In the present action, Bocage has moved to amend his complaint to join 21 additional
plaintiffs. He insists that these individuals, who are also alleged to be drilling fluid specialists,
assert claims arising out of the same transactions and occurrences as implicated by his lawsuit.
Specifically, Bocage says the plaintiffs all had similar job requirements and pay provisions and
they were all subject to the same, company-wide practices and policies. There is no dispute that
the court ordered deadline for amending pleadings has not yet passed.

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M-I also argued that as to putative plaintiffs residing outside of Louisiana, such plaintiffs would not be able to
establish personal jurisdiction over M-I.

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M-I opposes the amendment, arguing that Bocage has waived his ability to assert an action
jointly with other plaintiffs when he executed the June 2016 waiver of his right to participate in
any class or collective action. The attempt to join the plaintiffs to this action, M-I says, is an
attempt to proceed as a collective action without being certified as a collective action. M-I also
argues that plaintiffs do not allege that the proposed plaintiffs worked on the same rig, had the
same level of experience, or worked under the same supervisors. It insists that determining whether
an FLSA exemption applies to each of the plaintiffs requires an individualized analysis of the work
performed by each individual. This, M-I says, means that the proposed plaintiffs’ causes of action
do not arise out of a single transaction or series of transactions that would support joinder. M-I
further argues that as to the proposed plaintiffs who live out of state, the individuals will not be
able to establish personal jurisdiction over M-I because they have no connection to Louisiana. At
oral argument, however, counsel for M-I appeared to concede that if, as maintained by the
Plaintiffs, all Plaintiffs were working out of M-I’s Houma, Louisiana office, then M-I would have
trouble succeeding on a lack of personal jurisdiction argument. Finally, M-I argues that joinder
does not serve the interests of judicial economy because joinder will drastically delay the trial of
this matter. Trial is set for January 7, 2019, a year from the date Bocage filed his Motion for Leave
to Amend on January 3, 2018.
In reply, Bocage argues that by waiving the right to proceed as part of a collective action,
he did not waive the right to join other plaintiffs in this lawsuit. At oral argument, counsel
explained that when he agreed to include the language “this matter shall proceed as an action
brought solely by the plaintiff, Jeremy Bocage” in the dismissal order, he was trying to make clear
that Bocage’s collective action claims and not his individual claims were being dismissed. Counsel
for M-I agreed with this understanding.

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Bocage also argues that the claims raised by the proposed plaintiffs here arise out of the
same transaction or occurrence, and he insists that M-I’s claims to the contrary are speculative. To
the extent evidence obtained during discovery shows that individualized determinations will be
required, Bocage says, the trial court can always sever plaintiffs at that time. He further argues that
issues regarding personal jurisdiction are not properly addressed when assessing a motion for leave
to amend. And finally, he argues that trial will not be delayed by his amendment because the claims
present common issues of law and fact and a majority of witnesses are located in Louisiana.
The Court held oral argument on the Motion on February 28, 2018.
Law and Analysis
1. Amendment to Pleadings
Under Federal Rule of Civil Procedure 15(a)(2), when the time period for amending a
pleading as a matter of course has passed, a party may amend its pleadings by consent of the parties
or by leave of court. “The court should freely give leave when justice so requires.” Fed. R. Civ.
Proc. 15(a)(2). Thus, the United States Court of Appeals for the Fifth Circuit instructs that the
“district court must possess a ‘substantial reason’ to deny a request for leave to amend.” Smith v.
EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). Nonetheless, “that generous standard is tempered
by the necessary power of a district court to manage a case.” Yumilicious Franchise, L.L.C. v.
Barrie, 819 F.3d 170, 177 (5th Cir. 2016) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d
563, 566 (5th Cir. 2003)). The court may consider numerous factors when deciding whether to
grant a motion for leave to amend, including “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, and futility of the
amendment.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).

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2. Joinder
Bocage argues that joinder of the additional plaintiffs here is appropriate under Rule 20.
Joinder of additional plaintiffs may be allowed under Rule 20 only if “(1) their
claims arise out of the ‘same transaction, occurrence, or series of transactions or occurrences’ and
when (2) there is at least one common question of law or fact linking all claims.” Acevedo v.
Allsup's Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010). If the requirements of Rule
20 have been met, permissive joinder is generally “at the option of the plaintiffs.” Applewhite v.
Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir. 1995). “However, even if this test is
satisfied, district courts have the discretion to refuse joinder in the interest of avoiding prejudice
and

delay,

ensuring

judicial

economy,

or safeguarding principles

of fundamental

fairness.” Acevedo, 600 F.3d at 521 (internal citations omitted).
For example, in Acevedo, after the district court decertified an FLSA collective action, the
plaintiffs jointly filed a lawsuit asserting their distinct FLSA claims against their employer—a
convenience store operator. Id. at 519. The lawsuit included approximately 800 employeeplaintiffs who worked at over 300 different stores, each with its own manager. Id. at 519, 522.
The district court held that the plaintiffs’ claims were too dissimilar to proceed jointly, except that
the plaintiffs who had worked at the same store could proceed in a single lawsuit. Id. The plaintiffs
argued that joinder of all of their claims was appropriate because the defendant maintained
company-wide policies encouraging working off the clock. Id. at 521. The Fifth Circuit Court of
Appeals affirmed the district court’s ruling that the employees could not join in a single action,
noting the district court’s wide discretion and the “divergent working conditions at each store and
the different defenses applicable to each plaintiff’s claims.” Id. at 522.

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Similarly, in Costello v. Home Depot U.S.A., Inc. former opt-in plaintiffs in an FLSA
action that had been decertified refiled their cases jointly in six actions with between 39 and 103
plaintiffs. Costello v. Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 262–63 (D. Conn. 2012). In
one of the actions, the defendant sought to sever the plaintiffs’ claims and the court found
severance appropriate considering the factors under Rule 20 and Rule 21. Id. at 263. The court
found the plaintiff employees’ claims did not arise out of the same transaction or occurrence
because the plaintiffs did not “seek to prove a pattern or practice, but rather must prove claims as
to each plaintiff.” Id. at 264. The court noted that the employees’ claims “arise out of their
employment in different Home Depot stores, in different states, under different circumstances, and
apparently performing different tasks.” Id. The court found the employees’ claims shared a
common question of law and fact because “they all alleged that Home Depot improperly classified
them as exempt from the FLSA overtime requirements, and all held or hold the same job of
[merchandising assistant store managers].” Id. But, the court found the factor of judicial economy
and overlap of evidence weighed in favor of severance because the outstanding discovery was
plaintiff specific and the separate trials would rely on substantially different evidence. Id. at 265.
The court also considered prejudice, finding that a jury would be confused by considering the
individual evidence as to daily responsibilities of 39 plaintiffs, that severance would not increase
the cost of discovery, and that plaintiffs would incur additional costs to retain local counsel if the
claims were severed. Id. at 266.
Bocage cites Allen v. Atlantic Richfield Co., where 22 plaintiffs proceeded jointly as
named plaintiffs in a single lawsuit against their employer, rather than pursuant to a collective
action. 724 F.2d 1131, 1135 (5th Cir. 1984). The Fifth Circuit did not explicitly consider whether
joinder of the plaintiffs was proper. Id. Nonetheless, in affirming the district court in Acevedo,

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the Fifth Circuit distinguished Allen because the number of plaintiffs in Acevedo (800) was so
much higher than in Allen. Acevedo, 600 F.3d at 521.
3. Collective Action Waiver
M-I gives its waiver argument short shrift, devoting just a paragraph of its opposition to
the theory and citing no case law. M-I essentially argues that by waiving his right to a collective
action, Bocage also waived the ability to join his claims with the claims of other plaintiffs. The
contractual language that M-I relies on provides as follows:
Employee waives participation, to the extent permitted by law, in any class or
collective action, as either a class or collective action representative or participant
as to those claims not released by signing this Agreement prior to conditional
certification of a class or collective action.
M-I argues that by attempting to proceed jointly with 21 other plaintiffs, Bocage is attempting to
proceed pursuant to a collective action without certifying his case as a collective action. M-I insists
that Bocage should not be allowed to violate the “spirit of the agreement he signed.” At oral
argument, Plaintiffs’ counsel explained that the 21 plaintiffs sought to be joined also signed
collective action waivers, though he was not sure if they used the same wording as the one signed
by Bocage. Plaintiffs’ counsel further explained that the Plaintiffs in the consolidated case, Coder,
Civil Action No. 17-15074, had not signed a collective action waiver.
The briefs appeared to raise an issue as to whether Bocage waived his right to proceed
jointly with other plaintiffs by agreeing to a dismissal order that his lawsuit would proceed as an
action “brought solely by the plaintiff, Jeremy Bocage.” Given counsels’ agreement at oral
argument that this language was intended to ensure that only Bocage’s collective action claims
were dismissed, the Court will not interpret the dismissal order language as a waiver of the ability
to proceed jointly.

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Neither party cites any law to support its interpretation of the waiver. Although the cases
cited by M-I in its motion to dismiss Bocage’s collective action claims do not consider whether
such waivers extend to joinders, the Court finds it useful to consider the waiver clauses in those
cases. In D.R. Horton, Inc. v. National Labor Relations Board, the employee had agreed that all
claims would be decided by an arbitrator and that “the arbitrator [would] not have the authority to
consolidate the claims of other employees” and would “not have the authority to fashion a
proceeding as a class or collective action or to award relief to a group or class of employees in one
arbitration proceeding.” 737 F.3d 344, 348 (5th Cir. 2013) (emphasis added). This language was
interpreted by the National Labor Relations Board as precluding the employees from “filing joint,
class, or collective claims.” Id. at 355. In Convergys Corp. v. National Labor Relations Board, the
employee had agreed: “I will pursue any claim or lawsuit relating to my employment with
Convergys (or any of its subsidiaries or related entities) as an individual, and will not lead, join,
or serve as a member of a class or group of persons bringing such a claim or lawsuit.” 866 F.3d
635, 636 (5th Cir. 2017) (emphasis added). The Fifth Circuit found the National Labor Relations
Board had incorrectly determined that the agreement was an unfair labor practice under the
National Labor Relations Act. Id. 640. In Levy v. Schlumberger Tech Corp., the plaintiff had
waived “any right or ability to be a class or collective action representative or to otherwise
participate in any putative or certified class, collective or multi-party action or proceeding based
on such a claim in which [plaintiff] is a party.” No. 6:16-CV-00043, 2016 WL 6885916, at *2
(W.D. La. Nov. 2, 2016), report and recommendation adopted, No. 6:16-CV-00043, 2016 WL
6888129 (W.D. La. Nov. 21, 2016) (emphasis added). The court enforced the waiver and dismissed
the plaintiff’s collective action claims, requiring that the lawsuit proceed as an action “solely by
[the plaintiff.]” Id. In LogistiCare Sols., Inc. v. Nat'l Labor Relations Bd, the employee had agreed

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“to waive any right you may have to be a member of a Class or Collective action lawsuit or a
representative of a Class or Collective action lawsuit against the Company.” 866 F.3d 715, 717–
18 (5th Cir. 2017). As in Convergys, the Fifth Circuit granted the employer’s petition for review
of the National Labor Relation Board’s determination that the waiver violated the National Labor
Relations Act. Id.
The waiver clauses in Horton, Convergys, and Levy, clearly contemplate a waiver of a
joint action by prohibiting the employee from proceeding as a “group of persons,” in a “multiparty action,” or prohibiting consolidation of claims. But the clause at issue here is more like that
in LogistiCare, which merely references a prohibition on “class” or “collective” actions. Both of
these words are terms of art and might have been intended to refer to the procedural devices of
class or collective actions. As such, it would be a stretch to assume that the parties intended that
by prohibiting collective actions, Bocage was agreeing not to proceed “collectively” with any other
people. Furthermore, the parties have not sufficiently briefed this issue or presented any evidence
to establish what they intended.
The Court can deny a motion for leave to amend upon finding that the amendment would
be futile. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000). While it may
ultimately be shown that Bocage has waived his right to proceed jointly with other plaintiffs, the
Court cannot rule on the pleadings alone that Bocage’s amendment is futile.
4. Bocage’s Proposed Amendment – Rule 15 and Rule 20
At this early stage, the Court finds that the Amended Complaint sufficiently alleges causes
of action that arise out of the same transaction or occurrence and will raise common issues of law
and fact. The proposed plaintiffs allege that they served as drilling fluid specialists with the same
job responsibilities and that they regularly worked in excess of 40 hours per week. The common

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issues of law and fact include whether M-I is an enterprise engaged in commerce under the FLSA
and whether plaintiffs were essential to M-I’s business. Plaintiffs claim that they were
misclassified as exempt from the FLSA’s overtime requirements. Neither party has presented
evidence to show whether this analysis will require an individualized determination or whether
this question can be answered for all the plaintiffs. If the determination can be made in common,
the Court finds the interests of justice will be served by having plaintiffs’ claims joined in a single
lawsuit before a single district judge so that legal issues can be decided with consistency. If
discovery reveals that an individualized inquiry will be required, the court can always sever
plaintiffs at that time to allow for separate trials.
5. Personal Jurisdiction
With regard to M-I’s argument on personal jurisdiction, the Court finds this matter is better
addressed by the appropriate motions to dismiss. M-I’s argument, if successful, would only result
in dismissal of some, but not all, of the proposed plaintiffs. Moreover, during oral argument
Plaintiffs’ counsel seemed to argue that all Plaintiffs had been working out of M-I’s office in
Louisiana, and M-I’s counsel appeared to concede that if this was true, personal jurisdiction would
probably be established. The Court notes that with regards to consolidated action No. 15074, M-I
has already filed a motion to dismiss for lack of personal jurisdiction seeking to dismiss the out of
state plaintiffs in that claim. It seems the ruling there would apply equally here. Accordingly, in
the interest of judicial economy, M-I’s personal jurisdiction arguments should be considered by
the same judge.

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Conclusion
For the following reasons, Plaintiff’s Motion for Leave to File an Amended Complaint
(Rec. Doc. 17) is GRANTED; Plaintiff’s Amended Complaint is hereby entered into the record.
New Orleans, Louisiana, this 7th day of March, 2018.

Janis van Meerveld
United States Magistrate Judge

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