Busby v. Dauterive Contractors Inc

Filing 39

ORDER granting in part and denying in part Plaintiff's 28 Motion for Approval of Disputed Revised Proposed Notice To FLSA Collective Class; granting in part and denying in part Defendant's 30 Motion to Approve Dauterive's Notice o f Collective Action Lawsuit. Plaintiff's Proposed Notice of Collective Action Lawsuit and OptIn Consent Form, R. 28-3, Exh. B, is approved as to form with the addition of the discovery language provided in the foregoing. Signed by Magistrate Judge Carol B Whitehurst on 4/11/2016. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Busby, et al

Civil Action No. 6:14-cv-03366

versus

Judge Rebecca F. Doherty

Dauterive Contractors, Inc.

Magistrate Judge Carol B. Whitehurst
ORDER

Before the Court is Plaintiffs’ Motion To Approve Disputed Revised Proposed Notice
To FLSA Collective Class, R. 28, and Defendant’s Motion To Approve Dauterive’s Notice
of Collective Action Lawsuit, R. 30.
By order dated February 3, 3006, the Court granted Plaintiffs’ Motion To Conditionally
Certify this FLSA collective action and ordered the parties to meet and confer about the notice
form and either file an agreed notice form or a proposed form and opposed motion for
approval. R. 27. Although the parties agreed on several modifications to the notice initially
provided to the Court, they were unable to reach an agreement on two revisions requested by
Defendant: (1) that the class be narrowed in scope to persons who were paid “a flat rate of pay
for 12 hours of work” and (2) that the notice include a reference to possible discovery or trial
obligations on the part of opt-in plaintiffs. The parties each filed a proposed notice for the
Court’s consideration. R. 28-3, Exh. B; R. 30-1, Exh. A.
In their motion for conditional certification, Plaintiffs requested that the following class
be conditionally certified:
All individuals who, since October 2011, previously worked or currently work
for defendant, Dauterive Contractors, Inc. As Laborers and Equipment

operators, whose duties included, but were not limited to operating equipment
on drilling and dynamite projects, such as those who worked as drillers, drill
helpers, drill pushers, swamp buggy drivers, boat drivers, mechanics, and other
manual labor associated with drill and/or dynamite projects, and who worked
in excess of 40 hours per week, but due to Defendant’s will scheme to not pay
overtime to its employees, were not properly paid overtime for all hours worked
in excess of 40 per week in violation of the FLSA.
R. 21.
Defendants contend that the class should be narrowed in scope to persons who were
paid “a flat rate of pay for 12 hours of work.” By limiting the class to those who were paid “a
flat rate of pay for 12 hours of work,” Defendant’s proposed language excludes other
employees who may fall within the definition of the actual class certified who may have
worked 10 or 14 or any other number of hours for a flat rate, but were not paid overtime. The
Court’s determination at the notice juncture should be made using a “fairly lenient” standard.
See Mooney v. Aramco Services Co., 54 F.3d 1207, 1216 (5th Cir.1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Defendant’s proposed language
in this regard will be denied.
Defendant also requests that the notice incorporate language informing potential
plaintiffs that if they join the collective action, they may be required to participate in the
discovery and/or trial process. Such language is unnecessary. Plaintiffs argue that because this
is a collective action and is to be tried in a representative manner, the Court should deny
Defendants’ request. They further argue that including a warning about possible discovery
will serve no purpose other than deterring potential plaintiffs from joining the suit based on

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unfounded concerns about the hassle of discovery.
Courts may require a proposed notice form to state that opt-in plaintiffs may have to
participate in discovery or sit for a deposition, absent a compelling showing that such an
advisory would not be appropriate. Graham v. Jet Specialty, Inc., 2016 WL 154846, at *7
(W.D.Tex., 2016); Roberts v. S.B. S. Welding, LLC, No. 3:14-CV-3617-B, 2015 WL 8773610,
at *2 (N.D. Tex. Dec. 15, 2015). “[C]ourts have noted that such an advisory is routinely
approved.” See, e.g., Garcia v. TWC Admin., LLC, No. 14-CV-985, 2015 WL 1737932, at *7
(W.D. Tex. Apr. 16, 2015); Mejia v. Brothers Petroleum, LLC, 2014 WL 3530362, at *3
(E.D.La.,2014). The Court agrees that “discovery obligations may deter some plaintiffs from
opting into the litigation, but that is precisely the point of these notices—to allow potential
litigants to make an informed decision about whether they want to join the case.” Roberts v.
S.B. Southern Welding, LLC, 2015 WL 8773610, at *2 (N.D.Tex., 2015).
Thus, the Court approves the following language in IV. EFFECT OF JOINING THIS
SUIT: “If you do join, you may be required to participate in the discovery and/or trial
process.”
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion To Approve Disputed Revised Proposed
Notice To FLSA Collective Class, [Rec. Doc. 28] is Granted in Part and Denied in Part, and
Defendant’s Motion To Approve Dauterive’s Notice of Collective Action Lawsuit, [Rec. Doc.
30] is Granted in Part and Denied in Part, and Plaintiff’s Proposed Notice of Collective Action

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Lawsuit and Opt–In Consent Form, R. 28-3, Exh. B, is approved as to form with the addition
of the discovery language provided in the foregoing.
THUS DONE AND SIGNED at Lafayette, Louisiana, this 11th day of April, 2016.

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