Felps v. Mewbourne Oil Company, Inc.

Filing 134

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 62 Opposed MOTION to Certify Class For Liability Only. See order for specifics. (gr)

Case 2:18-cv-00811-MV-GJF Document 134 Filed 11/16/20 Page 1 of 33

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JONATHAN FELPS, Individually and
On Behalf of All Others Similarly Situated,
Plaintiffs,
v.

No. CIV 18-811 MV/GJF

MEWBOURNE OIL COMPANY, INC.
and D. Drew Greene,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion for Class Certification for
Liability Only under Rule 23(b)(3) (“Motion for Class Certification”) [Doc. 62]. The Court,
having considered the motion and relevant law, finds that the Motion for Class Certification is
well-taken and will be granted.
BACKGROUND
Mewbourne Oil Company is an oil and gas production company doing business in New
Mexico, Oklahoma, and Texas.

Doc. 36 ¶ 16. From 2014 to October 2016, Plaintiff Jonathan

Felps worked as a Lease Operator, or Pumper, for Mewbourne at its Hobbs, New Mexico
location. Id. ¶¶ 17-18.

All of Mewbourne’s Lease Operators perform the same job duties,

namely, outdoor manual labor, including operating oilfield equipment, inspecting and
maintaining oilfield equipment, monitoring oilfield equipment, and collecting and relaying data
to supervisors for analysis. Id. ¶ 25.
In August 2016, the United States Department of Labor (“DOL”) commenced an
investigation into Mewbourne’s practices of classifying its employees, through which it
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determined that Mewbourne had been misclassifying its Lease Operators as exempt from the
overtime protections of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
57.

Id. ¶

Based on this misclassification, all Lease Operators employed by Mewbourne, including

Plaintiff, were paid only a base salary and received no additional compensation for hours worked
in excess of 40 hours a week.

Id. ¶ 23.

As a result of the DOL investigation, Mewbourne made back-wage payments to 53 of its
Lease Operators and obtained DOL-approved releases from them.

Doc. 12 at 5.

Further, in

October 2016, Mewbourne reclassified its Lease Operators as hourly, non-exempt employees
entitled to overtime.

Doc. 36 ¶ 58. It was not until June 21, 2017, however, that Mewbourne

began paying its Lease Operators overtime for hours worked in excess of 40 hours a week.
Doc. 44 at 2-3.
Plaintiff, who did not receive any funds as a result of the DOL investigation and did not
sign any release of claims, Doc. 36 ¶ 61, commenced this action “individually and on behalf of
all others similarly situated” against Mewbourne and Drew Greene, Mewbourne’s General
Manager of Administration (collectively, “Defendants”), asserting violations of both the FLSA
and the New Mexico Minimum Wage Act (“NMMWA”), which, like the FLSA, requires that
employees who work more than 40 hours in a week be paid one and one-half times their regular
hourly rate for hours worked in excess of 40 hours.

Doc. 36.

Thereafter, Plaintiff filed a

motion seeking conditional certification of an FLSA collective action [Doc. 12], which he later
amended [Doc. 44].

On May 18, 2020, the Court entered a Memorandum Opinion and Order

(“May 2020 Opinion”) granting Plaintiff’s amended motion for conditional certification of an
FLSA collective action, conditionally certifying a class of “all persons who worked as a Lease

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Operator or Pumper for Mewbourne at any time between October 31, 2015 and June 21, 2017.”
Doc. 111.
In early May of 2019, Mewbourne presented a “Confidential Settlement Communication”
(the “Settlement Letter”) to 56 of its employees, offering to pay each of them “$1,000 per year of
employment as a lease operator with Mewbourne, through June 30, 2017, in exchange for a full
release of any claims for unpaid wages and overtime pay that [such employee] may have under
any state or local law,” Doc. 71-3, along with a Settlement Agreement and Release (“Release”).
Doc. 71-4.

Of the 56 employees who were presented with a Settlement Letter, 55 individuals

signed a Release.

Doc. 71-2 ¶ 11.

On May 24, 2019, Plaintiff filed a Motion for Corrective Notice, Doc. 64, asking the
Court to enter an order, inter alia, invalidating the 55 Releases signed by Mewbourne Lease
Operators. On July 15, 2020, the Court entered a Memorandum Opinion and Order (“July 2020
Opinion”) in which the Court held in part that, because Defendants’ oral and written settlement
communications were confusing and misleading, in the event that this Court grants certification
of a class for purposes of Plaintiff’s NMMWA claims, any individual who signed a Release will
be notified of the right to invalidate that Release and to participate in this action for purposes of
pursuing NMMWA claims against Defendants.
On May 23, 2019, Plaintiff filed the instant motion under Rule 23(b)(3) of the Federal
Rules of Civil Procedure for class certification (for liability only) on his NMMWA claims.
Doc. 62.

Specifically, Plaintiff asks the Court to certify a class of “all of Defendants’ current

and former Lease Operators who, in at least one workweek between June 19, 2009 and June 21,
2017, were paid a salary with no overtime and who worked for Defendants in New Mexico.”
Id. at 3.

Defendants oppose Plaintiff’s Motion for Class Certification.
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DISCUSSION
The crux of Plaintiff’s NMMWA claim is that Defendants’ policy of classifying Lease
Operators as exempt from the overtime wage protections of the NMMWA resulted in Plaintiff
and proposed class members losing out on overtime wages, i.e., one and one-half times their
regular wage, for any time over 40 hours that they worked in any given workweek.

Pursuant to

Rule 23 of the Federal Rules of Civil Procedure, Plaintiff asks the Court to certify a class in
connection with this claim, arguing that the necessary certification requirements are met and that
a class can properly be certified for liability purposes only. Although Defendants admit that
they classified all Lease Operators as exempt from the NMMWA’s overtime wage protections
and, as a result, did not pay Plaintiff or proposed class members any overtime wages, Defendants
argue that Plaintiff does not meet Rule 23’s requirements and that class certification, for liability
purposes or otherwise, thus would be improper.
I.

Standard for Class Certification under Rule 23
“The class action is an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.”
348 (2011).

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

“Rule 23 sets forth the standards for certifying a class action and requires that all

four prerequisites of Rule 23(a) and at least one of the three prerequisites of Rule 23(b) are
satisfied.” Casias v. Distrib. Mgm’t Corp, Inc., No. 11-cv-874, 2014 WL 12710236, at *3
(D.N.M. Mar. 31, 2014) (citing Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 613-14(1996)).
Rule 23(a) requires that the party seeking certification demonstrate that: (1) “the class is
so numerous that joinder of all members is impracticable” (numerosity); (2) “there are questions
of law or fact common to the class” (commonality); (3) “the claims or defenses of the
representative parties are typical of the claims or defenses of the class” (typicality); and (4) “the
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representative parties will fairly and adequately protect the interest of the class” (adequacy).
Fed. R. Civ. P. 23(a). A plaintiff “must also satisfy through evidentiary proof at least one of the
provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).

The provision

at issue here is Rule 23(b)(3), which requires the Court to find that: (1) “the questions of law or
fact common to class members predominate over any questions affecting only individual
members” (predominance); and (2) “a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy” (superiority).

Fed. R. Civ. P. 23(b)(3).

Additionally, Rule 24(c)(4) allows, “[w]hen appropriate,” for a class to be certified “with
respect to particular issues” only.

Fed. R. Civ. P. 23(c)(4). Under this provision, in order “to

preserve the class action model in the face of individualized damages, . . . at the outset, a class
may be certified for liability purposes only, leaving individual damages calculations to
subsequent proceedings.” Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc.,
725 F.3d 1213, 1220 (10th Cir. 2013) (quoting Comcast, 569 U.S. at 41 n.* (Ginsburg, J. and
Beyer, J., dissenting)).
“Rule 23 does not set forth a mere pleading standard.” Dukes, 564 U.S. at 350.
Rather, “[a] party seeking class certification must affirmatively demonstrate his [or her]
compliance with the Rule – that is, he [or she] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact, etc.”

Id. (emphasis in

original). Further, “a court’s class-certification analysis must be ‘rigorous’ and may ‘entail
some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret.
Plans & Trust Funds, 568 U.S. 455, 465-66 (2013) (quoting Dukes, 564 U.S. at 351).
Nonetheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the
certification stage.” Amgen, 568 U.S. at 466.

Rather, “[m]erits questions may be considered
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to the extent – but only to the extent – that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.” Id.
II.

The Instant Case
Here, Defendants appear to concede that Plaintiff meets the latter two requirements of

Rule 23(a), namely, typicality and adequacy of representation, but contend that Plaintiff fails to
satisfy the first two requirements of that subsection, namely, numerosity and commonality.
Defendants further contend that Plaintiff satisfies neither the predominance requirement nor the
superiority requirement of Rule 23(b).

After a rigorous analysis, the Court finds that Plaintiff

has satisfied his burden of affirmatively demonstrating that the Rule 23 prerequisites exist in
fact.
A.

Disputed Rule 23(a) Requirements
1.

Numerosity

In order to meet the numerosity requirement of Rule 23(a)(1), “[t]he burden is upon
plaintiffs seeking to represent a class to establish that the class is so numerous as to make joinder
impracticable.” Treviso v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006) (citation omitted).
The Tenth Circuit “has never adopted [] a presumption” of numerosity at a certain number, but
rather has “specifically stated there is no set formula to determine if the class is so numerous that
it should be so certified.”

Id.

“Impracticability is dependent not on any arbitrary limit but

upon the circumstances surrounding the case.” Horn v. Assoc. Wholesale Grocers, Inc., 555
F.2d 270, 275 (10th Cir. 1977).

Notably, “because it is such a fact-specific inquiry,” the district

court has “wide latitude” in determining whether the numerosity requirement has been met.
Treviso, 455 F.3d at 1162.

Circumstances that may inform the court’s impracticability

determination include, inter alia, “geographical dispersion, degree of sophistication, and class
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members’ reluctance to sue individually.” Amezguita v. Dynasty Insulation, Inc., 10-cv-1153,
2012 WL 12973895, at *4 (D.N.M. Feb. 23, 2012).
The parties disagree as to the number of potential class members. Defendants argue
that, based on their calculations, Mewbourne employed only 60 Lease Operators during the
relevant period, 55 of whom have voluntarily released their claims, resulting in a potential class
of merely five members.

Doc. 68 at 17.

On the other hand, Plaintiffs argue that, based on

various forms of evidence including Defendants’ own admissions, there are at least 100 potential
class members.

Doc. 79 at 5-7.

As the Court made clear in its July 2020 Opinion, upon

certification of a class, any individual who signed a Release will be notified of the right to
invalidate that Release and participate in this action for purposes of pursuing NMMWA claims
against Defendants.

Accordingly, by Defendants’ own account, the number of potential class

members is at least 60.
Also by Defendants’ own account, the majority of potential class members remain
employed by Mewbourne.

Doc. 68 at 17.

Given their relationship with Defendants, there is a

strong likelihood that those potential class members would be reluctant to individually sue or
join in an individual suit against Defendants. “In employment actions like this one, a class
member’s potential fear of retaliation is an important consideration in deciding whether joinder
is impracticable and thus whether the numerosity requirement is satisfied.” Swigart v. Fifth
Third Bank, 288 F.R.D. 177, 183 (S.D. Ohio 2012).

Indeed, courts across many districts have

certified smaller classes (less than 40 members) and are “particularly conservative with the
numerosity requirements in certifying employment cases where there is a prevalent fear of
employer retaliation.” Fenley v. Wood Group Mustang, Inc., 325 F.R.D. 232, 249 (S.D. Ohio
2018) (collecting cases).
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As Defendants note, Plaintiff has not established geographic diversity, which would favor
a finding of numerosity.

Geographic diversity, however, is but one factor to consider, and the

lack of such diversity is not dispositive of the impracticability determination.

The undisputed

evidence demonstrates that there are at least 60 potential class members, and that most of those
class members remain employed by Mewbourne.

Under these circumstances, the Court finds

that Plaintiff has met his burden of establishing impracticability of joinder, and thus numerosity,
in satisfaction of Rule 23(a)(1).
2.

Commonality

Commonality requires that there be “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). While “[a]ny competently crafted class complaint literally raises
common questions,” simply reciting “these questions is not sufficient to . . . demonstrate that the
class members have suffered the same injury.” Dukes, 564 U.S. at 349-50 (citations omitted;
emphasis in original). Rather, the class members’ claims must “depend upon a common
contention,” and in turn, that common contention must be “of such a nature that it is capable of
classwide resolution – which means that determination of its truth or falsity will resolve an issue
. . . in one stroke.”

Id. at 350. Thus, in determining commonality, “[w]hat matters” is “the

capacity of a class-wide proceeding to generate common answers apt to drive the resolution of
the litigation.” Id. (emphasis in original; citation omitted). “Despite the rigor of the Rule 23
requirements, commonality has never been understood to require that all issues must be identical
as to each member, but rather requires that plaintiffs identify some unifying thread among the
members’ claims that warrants class treatment.” Jacob v. Duane Reade, Inc., 289 F.R.D. 408,
414 (S.D.N.Y. 2013) (citation omitted).
Notably, “the weight of authority rejects the argument that Dukes bars certification in
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wage and hour cases.” Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 616 (S.D.N.Y
2012) (collecting cases).

Rather, in the context of cases “that challenge employment policies,

courts considering whether a proposed class satisfies the commonality requirement must []
examine whether the challenged policy is common to the class as a whole, and whether the
proposed class members share similar job duties.” Gandy v. RWLS, LLC, 17-cv-558, 2019 WL
1407214, at *6 (D.N.M. Mar. 28, 2019) (citing Dukes, 564 U.S. at 359 (finding that a nationwide
class of employees could not show commonality in a discrimination suit because the plaintiffs
“provide[d] no convincing proof of a companywide discriminatory pay and promotion policy”
that [was] applicable to all class members)); see also Morris v. Alle Processing Corp., 08-cv4874, 2013 WL 1880919, at *9 (E.D.N.Y. May 6, 2013) (noting that, in wage and hour cases,
courts have “focused on whether the employer had company-wide wage policies that injured the
proposed class”) (citation omitted). After engaging in such analysis, “[c]ourts routinely certify
misclassification cases,” finding that “the central question of whether the employees were
wrongfully classified as exempt from overtime pay requirements is common to the class.”
Swigart, 288 F.R.D. at 184 (collecting cases); see also Fitzgerald v. P.L. Mkting, Inc., No 17-cv2251, 2020 WL 3621250, at *7 (W.D. Tenn. July 2, 2020) (“The members of the Classes present
common questions of law and fact about whether PLM misclassified them as salaried, nonexempt employees”); Flores v. Anjost Corp, 284 F.R.D. 112, 125 (S.D.N.Y. 2012) (“Claims by
workers that their employers have unlawfully denied them wages to which they were legally
entitled have repeatedly been held to meet the commonality prerequisite for class certification.”);
Jacob, 289 F.R.D. at 415 (concluding that plaintiffs sufficiently established commonality given
“the uniform classification” of assistant store managers (“ASM”) “as exempt” from the overtime
wage protections of New York law, “the uniform description of ASM’s duties, the similarity
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among [Duane Reade] stores, and the discrete, geographical location of the [Duane Reade]
brand”); Laichev v. JBM, Inc., 269 F.R.D. 633, 640 (S.D. Ohio 2008) (finding commonality
when “the members of the class have allegedly been affected by a general policy of the
defendant, and the general policy is the focus of the litigation”).
Here, Plaintiff has identified a policy and practice – classifying Lease Operators as
exempt – that he alleges Defendants knowingly employed with the effect of causing Plaintiff and
the potential class members to be undercompensated in violation of the NMMWA.

The fact

that Defendants uniformly applied this policy and practice to its Lease Operators is undisputed.
See Doc. 68 at 14 (“[T]he misclassification issue is not in dispute.”). It is also undisputed that,
because of this policy and practice, Defendants did not compensate Lease Operators for
overtime. See id. at 15 (“Mewbourne and Greene have admitted that they did not pay an
overtime premium to lease operators.”).

Further, Declarations submitted by Plaintiff and other

former Mewbourne Lease Operators demonstrate that Lease Operators’ work required more than
40 hours a week. See, e.g., Doc. 62-1 ¶ 6 (Declaration of Tyson Fletcher) (“I almost always
worked more than forty hours per week and frequently worked more than 50 hours in a week.”);
Doc. 62-2 ¶ 7 (Declaration of Ross Menefee) (“I almost always worked more than forty hours
per week and frequently worked more than 60-70 hours in a week.”); Doc. 62-4 ¶ 7 (Declaration
of Danny Stark) (“I almost always worked more than forty hours per week and frequently
worked 80 or more hours in a week.”).

Similarly, these Declarations establish that

“Mewbourne scheduled [Lease Operators’] work hours and [their] supervisors knew how many
hours [they] were working per week.” See, e.g., Doc. 62-1 ¶ 7; see also Doc. 62-3 ¶ 8
(Declaration of Doug Thompson) (“I informed my supervisors about the amount of time it was
taking me to complete the assigned routes.

And on one occasion, my supervisor, Matt Gandy,
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rode along with me on my route.”); Doc. 62-4 ¶ 8 (Stark Decl.) (“I was communicating with my
supervisors regularly, including late into the night after I finished my route,” and also entered
“well data” into a computer program, which “typically took two hours per day . . . after I finished
my route.”); Doc. 62-7 ¶ 8 (Declaration of Jeffery Fraley) (“I complained to my supervisor about
working long hours without being paid any overtime.”); Doc 62-6 ¶ 11 (Declaration of Justin
Levario) (“[A]s a Lead Pumper, we knew the number of hours per week the Lease Operators
were working and knew they were working more than forty hours per week. . . . Mewbourne had
access to whatever Lease Operators entered into the [computer] system and would tell when
Lease Operators entered it.”).
Plaintiff’s claim ultimately rests on the contention that the policy and practice of
classifying Lease Operators as exempt – together with the standard practice of assigning more
work than the Lease Operators could complete within 40 hours a week – “had the effect of
causing the class to perform uncompensated work.” See Perez v. Isabella Geriartic Center,
Inc., No. 13-cv-7453, 2016 WL 5719802, at *2 (S.D.N.Y. Sept. 30, 2016). The common
question that is “likely to drive the resolution of the litigation [is] therefore whether the
confluence of these policies and practices can establish, on a classwide basis,” that: (a) Plaintiff
and the potential class members worked more than 40 hours a week, (b) management knew or
should have known that they did so, and (c) they were not compensated for the overtime.

Id.;

see Self v. United Parcel Service, Inc., 970 P.2d 582, 589 (N.M. 1998) (setting forth the elements
of an NMMWA claim). At this stage, “[t]he Court need not reach the merits of [this]common
question[].”

Perez, 2016 WL 5719802, at *2. Rather, it is enough that the policy and practice

that serve as the basis for Plaintiff’s claims have “been shown to apply uniformly to the putative
class.” Id. (citing Lassen v. Hoyt Livery Inc., No. 13-cv-1529, 2014 WL 4638860, at *9 (D.
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Conn. Sept. 17, 2014) (finding commonality where it was “not disputed . . . that all members of
the putative class were subject to a uniform compensation policy . . . the legality or illegality of
[which] provide[d] the unifying thread to satisfy the commonality requirement of Rule
23(a)(2)).”).
In short, “the common contention of the class members in the instant case is that they
were not properly compensated for overtime hours” because Defendants misclassified them as
exempt from the NMMWA’s overtime requirements. Chado v. Nat’l Auto Inspections, LLC,
17-cv-2945, 2019 WL 1981042, at *5 (D. Md. May 3, 2019).

“If that is true, then every

member of the class is entitled to a recomputation of compensation based upon actual hours
worked.” Id. Accordingly, Plaintiff has satisfied the commonality requirement of Rule
23(a)(2) by demonstrating that his claims rest on a common contention the determination of
which “will resolve an issue . . . in one stroke.” Dukes, 564 U.S. at 350.
Defendants disagree, arguing that in order “[t]o establish Mewbourne’s liability or lack
thereof for any pumper for any workweek, the Court would have to examine the available
evidence showing how many hours that pumper worked that week, and because Mewbourne is
liable to a Lease Operator only if he or she “worked over 40 hours” in a given week, “[t]here is
no way around this individual analysis.”

Doc. 68 at 12.

According to Defendants, the factual

variation in the actual hours worked by each class member suffices to unravel the unifying thread
of the class members’ claims.
Courts, however, routinely reject the argument that commonality is defeated by
“individualized questions regarding the number of hours worked and how much each employee
was entitled to be paid,” reasoning that those “differences go to the damages that each employee
is owed, not to the common question of Defendant’s liability.” Swigart, 288 F.R.D. at 184
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(citation omitted); accord, Morris, 2013 WL 1880919, at *10 (“Differences among class
members as to the number of hours worked, the type of work performed, and the amount of pay
received concern the amount of damages to which any individual class member might be entitled
if and when liability is found, not the amenability of plaintiffs’ claims to the class action form.”)
(citation omitted); Chado, 2019 WL 1981042, at *5 (holding that defendants’ argument that
every class member’s “hours will differ, thereby making a class action unsuitable,” fell “short,”
as it failed “to recognize that the policy of compensation was applied across the board to all
Specialists, thereby allegedly shortchanging all of them”); Gomez v. PNC Bank, NA, 306 F.R.D.
156, 168-69 (N.D. Ill. 2014) (rejecting defendant’s argument that plaintiff could not satisfy the
commonality requirement because the court would be “required to engage in a highly factual,
individualized analysis to determine whether Plaintiff [was] overtime eligible, whether she [was]
in fact owed additional overtime, and, if so, how much,” finding instead that whether the
defendant had a “policy of not compensating its employees for time they work beyond 40 hours a
week . . . [was] relevant to the extent of [the defendant’s] liability, if any, under state and federal
overtime laws,” and that it was “more efficient to answer this question . . . in one stroke on a
class-wide basis.”).

Recently, in Rodriguez v. Peak Pressure Control, L.L.C., the plaintiff

argued, just as Plaintiff does here, that the entire class of pressure control operators was
misclassified as exempt from the NMMWA’s overtime requirements and, as a result, was paid
salary with no overtime pay, which in turn resulted in the lack of compensation for hours worked
in excess of 40 hours per week.

17-cv-576, 2020 WL 3000415, at *1 (D.N.M. June 4, 2020).

The defendants in Rodriguez, just as Defendants do here, argued that commonality was defeated
(in part) because “answering the question of whether the class members worked in excess of 40
hours in a workweek in New Mexico will require individualized evidence of each member’s
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workweek in New Mexico.”

Id. at *6.

This Court rejected that argument, noting that

defendants “uniformly” classified class members as exempt from NMMWA’s overtime
requirements “without making an individualized determination of each worker’s individual
responsibilities,” and that “every member of the class need not be in a situation identical to that
of the named plaintiff.”

Id. at *7.

Defendants have pointed to no persuasive authority to convince the Court to hold any
differently here.

Defendants cite to Gandy, in which the plaintiff claimed that the defendant

oilfield service company misclassified its “field employees” as exempt from overtime and paid
them on a salary plus bonus basis without overtime compensation in violation of the NMMWA.
2019 WL 1407214, at *1.

Unlike the class in the instant case, which is comprised solely of

Lease Operators to whom Mewbourne applied the same exemption, the putative class of
employees in Gandy “encompasse[d] seven different job titles” and the defendants asserted that
“they applied three different NMMWA exemptions to the class members.” Id. at *8. And
unlike Defendants here, who concede that its Lease Operators were, as a uniform policy and
practice, misclassified as exempt, the defendant in Gandy maintained that it had properly applied
the various NMMWA exemptions, and that “evidence regarding which exemption applie[d] to
each class member [would] require an assessment of each class member’s job duties.” Id. at *7.
Because the plaintiff had “not provide[d] evidence of company-wide policies regarding
employee classification or overtime pay,” and because the class members’ job descriptions did
“not establish that the class members had similar job duties,” the Gandy Court found that
“determining whether the NMMWA exemptions appl[ied] [would] involve fact-specific inquiries
regarding the employees’ specific job duties,” and thus that the plaintiff had “not satisfied his
burden of showing [that] this question is capable of class-wide resolution.”
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Id. at *9.

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In contrast, it is undisputed here that Mewbourne’s Lease Operators had similar job
duties and were uniformly misclassified as exempt. Doc. 68 at 14. Because there is no
question as to whether any of the class members were properly classified as exempt, it follows
that there is no need for a fact-specific inquiry to determine the applicability of any exemptions.
The reasoning of Gandy, which rested on the necessity of a fact-specific inquiry that is not
needed here to answer a question that is not in dispute here, thus is inapposite.
The Gandy Court did go on to consider an additional argument raised by the defendants,
similar to that raised by Defendants here, that, “to answer the question of whether the class
members worked in excess of 40 hours in a workweek,” the court would “have to consider
individual evidence such as driver’s logs and job tickets,” and that, as a result, this question was
also not “capable of class-wide resolution.” 2019 WL 1407214, at *9. In agreeing with
defendants, the Court relied on Bustillos v. Bd. of Cty. Comm’rs of Hidalgo Cty., 310 F.R.D. 631
(D.N.M. 2015).

The Gandy Court cited language in Bustillos that “‘if employees failed to

record pre-shift or post-shift time, this determination [would] be subject to speculation and
individual accounts,’” and thus “‘the proposed class presented questions requiring individual
assessments and significant testimony.’” Gandy, 2019 WL 1407214, at *9 (quoting Bustillos,
310 F.R.D. at 671).

The Gandy Court stated that the Bustillos Court “declined to certify the

class under Rule 23(b)(3)” on this basis. Gandy, 2019 WL 1407214, at *9 (quoting Bustillos,
310 F.R.D. at 671).

Finding “no difference” between Bustillos and the case before it, the

Gandy Court determined that the potential need for individual evidence in calculating the
number of hours each class member worked provided a second basis for finding that the plaintiff
had not met the commonality requirement. Id.
This Court does not agree that Bustillos supports a finding that commonality is defeated
15

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by individualized questions regarding the number of hours worked by each class member.

To

the contrary, the Court in Bustillos held that the plaintiffs did satisfy Rule 23(a)’s commonality
requirement, because “[t]he fundamental issue . . . common among all of the Plaintiffs and
potential plaintiffs” was “whether Hidalgo County required potential class members to perform
uncompensated work.” 310 F.R.D. at 670.

In making this determination, the Court

specifically rejected the notion adopted by the Gandy Court that the possibility that “Plaintiff and
potential class member[s] might have performed a different amount of uncompensated work”
would “preclude the Plaintiffs from satisfying the commonality [] element[].” Id.

The Court

reasoned that “[e]ven though some plaintiffs may be entitled to more damages than others, all of
the Plaintiffs’ and proposed class members’ claims are based on the same legal theory – that they
performed uncompensated work.” Id.

The court concluded that “[a]ll of the Plaintiffs and

proposed class members share this with each other, thus satisfying the commonality
requirement.”

Id.

Indeed, the language cited by the Gandy Court to support its own commonality
determination was written in the wholly separate context of the Bustillos Court’s consideration of
Rule 23(b)(3)’s predominance requirement. Id. at 671.

And even in that context, after noting

the “difficulties” posed by the fact that, if employees had failed to record overtime, determining
their uncompensated hours would be “subject to speculation and individual accounts,” the Court
still found that common questions of law and fact predominated over questions affecting
individual members. Id. at 671.

Ultimately, the Bustillos Court denied the plaintiffs’ motion

to certify on the unrelated basis that the plaintiffs had not met Rule 23(b)(3)’s requirement that a
class action be the superior method to try the case. Id. at 673.
As in Bustillos, in this case the fundamental issue common among Plaintiff and the class
16

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members is whether, by misclassifying their Lease Operators as exempt, Defendants required
them to perform uncompensated work.

And as the Court found in Bustillos, this Court, too,

finds that differences in the amount of uncompensated work that Plaintiff and potential class
members might have performed does not preclude Plaintiff from satisfying the commonality
element.

The Court respectfully declines to adopt the Gandy Court’s contrary determination

that commonality is defeated by the potential variation in hours worked by individual class
members.
The Court equally declines to adopt Defendants’ reasoning that, because they have
conceded many of the common issues raised by Plaintiff, namely, that the class members were
misclassified as exempt, performed the same job duties, and were not paid overtime, these issues
cannot be considered common for purposes of Rule 23(a)(2).

Doc. 68 at 14-15.

The

undisputed nature of the questions raised by Plaintiff is irrelevant to the wholly separate inquiry
of whether those questions can generate a common answer. As discussed above, the questions
raised by Plaintiff are capable of resolution in one stroke.
Defendants agree with the answers to those questions.

This is true regardless of whether

While Defendants’ concessions

undoubtedly will make the Court’s determination of Plaintiff’s contentions easier, the Court is
hard-pressed to see how Defendants’ concessions would negate the commonality of Plaintiff’s
contentions in the first instance.
In actuality, Defendants’ argument that common evidence cannot be used to answer the
question of whether each individual class member worked more than 40 hours in any given
workweek “does not refute the existence of common issues,” but rather suggests “that whatever
common issues exist are overwhelmed by issues particular to individual class members.”
Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 157 (S.D.N.Y. 2008).
17

“As such, [that]

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argument is more appropriately addressed below in respect to the predominance requirement.”
Id.
B.

Disputed Rule 23(b)(3) Requirements
1.

Predominance

“Rule 23(b)(3)’s predominance requirement is related to, albeit ‘more demanding than,’
Rule 23(a)(2)’s commonality requirement.” Naylor Farms, Inc. v. Chaparral Energy, LLC, 923
F.3d 779, 789 (10th Cir. 2019) (quoting Comcast Corp., 569 U.S. at 34).

“The Rule 23(b)

predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.”

Amchem Prods., 521 U.S. at 623. To that end, predominance

requires that “common questions subject to generalized, classwide proof predominate over
individual questions.” CGC Holding Co., LLC v. Broad & Cassell, 773 F.3d 1076, 1087 (10th
Cir. 2014) (emphasis in original).
To determine whether a plaintiff meets this requirement, the court “must characterize the
issues in the case as common or not, and then weigh which issues predominate.” Id. (emphasis
in original). “It is not necessary that all of the elements of the claim entail questions of fact and
law that are common to the class, nor that the answers to those common questions be
dispositive.”

Id. (citing Amgen, 568 U.S. at 469 (holding that Rule 23(b) “does not require a

plaintiff seeking class certification to prove that each element of her claim is susceptible to
classwide proof”) (emphasis in original; citations omitted)). Rather, “the predominance prong
asks whether the common, aggregation-enabling, issues in the case are more prevalent or
important than the non-common, aggregation-defeating, individual issues.” CGC Holding, 773
F.3d at 1087 (citation omitted).

“Critically, so long as at least one common issue predominates,

a plaintiff can satisfy Rule 23(b)(3) – even if there remain individual issues, such as damages,
18

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that must be tried separately.”

Naylor Farms, 923 F.3d at 789 (citing Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)).
As explained above, this case “turns” on the common question of whether Defendants’
policy of misclassifying their Lease Operators as exempt, in combination with their practice of
requiring Lease Operators to work more than 40 hours in a week, “violate the [NMMWA] on a
classwide basis.”

Perez, 2016 WL 5719802, at *3.

This is “the same question[] that will drive

the resolution of this litigation.” Wang v. Chinese Daily News, Inc., No. 04-cv-1498, 2014 WL
1712180, at *5 (C.D. Cal. Apr. 15, 2014).

The answer to this common question is “susceptible

to common proof and hinge[s] on [Defendants’] uniform corporate policies and procedures
which govern all of [their Lease Operators].” Id.

In other words, the common contention that

Defendants had “a policy that left [them] liable under the [NMMWA will] prevail or fail for the
class as a whole,” and “[i]n no event will the individual circumstances of particular class
members bear on the inquiry.”
2015) (citation omitted).

Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 378-79 (7th Cir.

Courts routinely have found predominance where, as here, the

challenged policy is common to the class as a whole and the proposed class members share
similar job duties. See, e.g., Morris, 2013 WL 1880919, at *12 (“[P]redominance is satisfied
where, as here, the ‘central issue’ is whether defendants had a ‘uniform policy or practice’ of
denying wages for all hours worked, overtime wages, and spread of hours compensation.”);
Goldman v. Radioshack Corp., 03-cv-32, 2005 WL 1124172, at *4 (E.D. Pa. May 9, 2005) (“The
predominate legal issue in this action is whether ‘Y’ store managers were wrongfully classified
as exempt and denied overtime wages.”); Damassia, 250 F.R.D at 160 (“Where, as here, there is
evidence that the duties of the job are largely defined by comprehensive corporate procedures
and policies, district courts have routinely certified classes of employees challenging their
19

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classification as exempt, despite arguments about ‘individualized’ differences in job
responsibilities.”); Chado, 2019 WL 1981042, at * 7 (finding predominance requirement met
because “every time Defendant calculated the Specialists’ compensation pursuant to its uniform
policy, which did not provide for overtime, the class members were exposed to the same risk of
harm because compensation was based upon scheduled hours rather than actual hours”).
As they did in the context of commonality, Defendants argue that because the Court must
first determine “how many hours a plaintiff worked in a work week” in order to determine
whether Defendants violated the NMMWA, Plaintiff cannot meet the predominance requirement.
Doc. 68 at 21 (emphasis in original). According to Defendants, because Lease Operators
“worked different amounts of time,” “the need to conduct [a] thorough analysis” into how many
hours each class member worked “would easily overwhelm” the common questions. Id. at 20.
Courts have roundly rejected this argument, concluding instead that “[t]he number of
hours individual class members worked [] is a question for damages, not liability.” Bitner v.
Wyndham Vacation Resorts, Inc., No. 13-cv-451, 2016 WL 7480428, at *11 (W.D. Wis. Dec. 29,
2016); see also Bell, 800 F.3d at 278-79 (“It makes no difference to the class claim as a whole
how many hours . . . each employee worked,” as “[t]hese would be issues for the portion of the
suit in which individual damages are assessed.”); Morris, 2013 WL 1880919, at *13
(“Defendants’ argument, in essence, amounts to a list of factors that could affect the amount of
time [] employees spent [working], and thus the wages to which they would be entitled – i.e.
damages issues, not liability issues.”).

And, recognizing that “damages determinations are

individual in nearly all wage-and-hour class actions,” courts routinely have held that “damages
calculations alone cannot defeat certification.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 513
(9th Cir. 2013); see also Gomez, 306 F.R.D. at 168 (“It is well established, however, that the
20

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presence of individualized questions regarding damages does not prevent certification under
Rule 23(b)(3).”) (citation omitted); Wang, 2014 WL 1712180, at *5 (“The only individual issues
remaining relate to individual plaintiffs’ damages, and these cannot defeat certification.”);
Rodriguez, 2020 WL 3000415, at *17 (rejecting defense argument that predominance was
defeated “because the percentage of time that employees allegedly worked overtime in New
Mexico is not uniform across the class”).

Indeed, the Tenth Circuit has specifically held that

“[t]he fact that damages may have to be ascertained on an individual basis is not, standing alone,
sufficient to defeat class certification.” XTO Energy, 725 F.3d at 1220. Applying these
principles in circumstances where, as here, the plaintiff’s theory of liability is predicated on the
blanket application of policies and practices to an entire class, courts have uniformly rejected the
notion that predominance is defeated by the specter of individualized inquiries into the numbers
of hours worked by each class member.

See Bitner, 2016 WL 7480428, at *13 (“[Q]uestions

concerning damages for individual class members, such as the number of hours each employee
worked, do not predominate over the common contention regarding the existence of an unofficial
policy.”) (emphasis in original); Morris, 2013 WL 1880919, at *13 (“Although determinations as
to damages will require individualized inquiries here, such inquiries will not bar certification
because common liability issues otherwise predominate.”); Delagarza v. Tesoro Refining &
Mktg. Co., 09-cv-5803, 2011 WL 4017967, at *11 (N.D. Cal. Sept. 8, 2011) (“While there may
be some variation within the Golden Eagle refinery with respect to the amount of downtime per
shift or number of times per week that employees leave the premises, such variation does not
present sufficient evidence that individual questions predominate over Plaintiff’s actual theory,
which is based on Tesoro’s purported general policies.”); Ramirez v. Riverbay Corp., 39 F. Supp.
3d 354, 369 (S.D.N.Y. 2014) (“[I]f the plaintiffs succeed in demonstrating a corporate policy of
21

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routinely denying RiverBay employees compensation for pre- and post-shift work, the primary
hurdle to recovery is likely to consist predominately of arithmetical calculations based on payroll
records and other documentary evidence.

The plaintiffs have therefore established by a

preponderance of the evidence that classwide issues will predominate over individualized
inquiries.”); Gomez, 306 F.R.D. at 169 (holding that whether PNC had a policy of not
compensating its employees for time they worked beyond 40 hours a week was “relevant to the
extent of PNC’s liability, if any, under state and federal overtime laws,” that it was “more
efficient to answer this question . . . in one stroke on a class-wide basis,” and that, accordingly,
“individualized damages questions [were] not an impediment to class certification”); Chado,
2019 WL 1981042, at * 7 (“[T]he common contention of unlawful application of the
compensation policy under the [Maryland wage laws] predominates over individualized inquiries
into how much any particular Specialist is owed.”).
None of the cases cited by Defendants persuade the Court to deviate from this precedent.
First, Defendants cite Casias for the proposition that “[w]hen, as here, the dispute requires a
court to delve into the actual day-to-day activities of the workers, individualized questions
predominate.”

Doc. 68 at 20.

But in Casias, the court did not consider, much less rely upon,

variations in the number of hours worked by the putative class members in finding a lack of
predominance.

Rather, the court explained that the courier drivers’ challenge to their

employer’s practice of classifying them as independent contractors, in the first instance,
depended not on the existence of a “uniform, company-wide policy,” as do Plaintiff’s claims
here, but rather on each class member’s individual testimony as to “his or her own individual
experience.”

2014 WL 12710236, at *16.

The court concluded that the merits of the

plaintiffs’ claim, i.e., whether their classification as exempt from employment laws was proper,
22

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“turn[ed] on their day-to-day work and not upon any company-wide contractual policies.” Id.
The court defined the relevant inquiry as
whether the evidence demonstrates that the employer exercised some level of
centralized control in the form of standardized hierarchy, standardized corporate
policies and procedures governing employees, uniform training programs, and
other factors susceptible to common proof, or whether the claims before the court
will be proved by individualized inquiries into the circumstances of each
employee.
Id. at *18 (citations omitted).

Under that inquiry, the court found that the evidence took the

form of “individualized testimony that disavow[ed]” relevant contractual provisions, rather than
evidence in the form of “company-wide” policies. Id.

In so finding, the court specifically

distinguished the case before it from Damassia, where “common issues predominated because
the question whether the FLSA’s administrative exemption applied could be answered by
consulting uniformly-applied comprehensive corporate procedures and policies.” Id.
Here, there are no factual disputes as to the “circumstances of each employee.” Id. To
the contrary, Defendants concede that the class members were all misclassified as exempt,
performed the same job duties, and were subject to a uniform exemption policy.
14-15.

Doc. 68 at

Thus, this case is akin to Damassia, and distinguishable from Casias, as the common

question can “be answered by consulting uniformly-applied comprehensive corporate procedures
and policies.”

2014 WL 12710236, at *18.

Nothing in Casias suggests that where, as here,

liability turns on common evidence, individualized inquiries as to the number of hours worked
by individual class members defeats predominance.
Defendants’ reliance on Kilbourne v. Coca-Cola Co. is similarly misplaced, as that case,
too, turned on the failure of the plaintiff to establish “evidence of the existence of a [] companywide directive . . . or any other unofficial policy or practice that could serve as the ‘glue’
necessary to generate common answers on a classwide basis.”
23

No. 14-cv-984, 2015 WL

Case 2:18-cv-00811-MV-GJF Document 134 Filed 11/16/20 Page 24 of 33

5117080, at *12 (S.D. Cal. July 29, 2015).

It was that failure, the court explained, that

necessitated “individualized inquiries” to determine the merits of the plaintiff’s claim. Id.
Kilbourne is inapposite here, where there is no failure of proof as to company-wide policies and
practices. Accordingly, Kilbourne lends no support to Defendants’ argument – an argument
neither considered nor adopted by the Kilbourne court – that individualized inquiries into the
number of hours worked by individual class members defeats predominance.
As Defendants acknowledge, pursuant to Rule 24(c)(4), Plaintiff expressly seeks to limit
certification in this case to a determination of liability.

Nonetheless, Defendants contend that

“the Court cannot ignore how damages are to be calculated in the predominance inquiry,” and
urge the Court to decline to certify the putative class, even as a liability only-class, because
“individual damages issues will remain.”

Doc. 68 at 22-23. The Tenth Circuit, however, has

expressly recognized that certification of a class “for liability purposes only, leaving individual
damages calculations to subsequent proceedings, ” is an appropriate “way[] to preserve the class
action model in the face of individualized damages.” XTO Energy, 725 F.3d at 1220; accord, In
re Motor Fuel Temp. Sales Prac. Litig., 292 F.R.D. 653, 666 (D. Kan. 2013) (“Certifying a class
to determine the defendant’s liability, while leaving the class members to pursue their individual
damages claims, is a common example of partial certification”) (citation omitted); see also Tyson
Foods, 136 S. Ct. at 1045 (“When one or more of the central issues in the action are common to
the class and can be said to predominate, the action may be considered proper under Rule
23(b)(3) even though other important matters will have to be tried separately, such as damages.”)
(citation omitted).
Importantly, even where certification is sought for liability purposes only, “a class’s
theory of liability [must] track its theory of damages or injury.”
24

Jacob v. Duane Reade, Inc.,

Case 2:18-cv-00811-MV-GJF Document 134 Filed 11/16/20 Page 25 of 33

293 F.R.D. 578, 592 (S.D.N.Y. 2013).

Thus, a plaintiff must be able to show that [his or her]

damages stemmed from the defendant’s actions that created the legal liability.” Leyva, 716
F.3d at 514.

Here, this requirement is easily met, as each class member’s claim “is the same:

he [was] wrongfully classified as a statutorily exempt employee and, as such, was never paid the
overtime compensation to which he was entitled. [T]he injury here – lack of overtime – clearly
stems from one, common harm – the uniform misclassification of all [Lease Operators].”
Jacob, 293 F.R.D. at 592.
Accordingly, “certification of the class for liability purposes will clearly advance the
litigation in a meaningful way.”

Id. at 593.

Defendants’ misclassification of their Lease

Operators “will have necessarily caused a uniform type of injury to class members: namely, the
lack of overtime pay to which all class members would be entitled.

The only remaining

question then will be how much each individual is owed – an inquiry that may require varying
levels of individualized proof,” as Defendants emphatically claim.

Id. For this very reason,

“this instance is one in which the certification of the liability class is particularly appropriate.”
Id.; see also Leyva, 716 F.3d at 514 (“Here . . . if putative class members prove Medline’s
liability, damages will be calculated based on the wages each employee lost due to Medline’s
unlawful practices. . . . [D]amages could feasibly and efficiently be calculated once the common
liability questions are adjudicated.”). Id.
In light of Plaintiff’s request that certification be granted as to liability only, the Court
finds that, despite variations in the hours that individual class members worked, the proposed
class of Lease Operators, all of whom were denied overtime pay as a result of their
misclassification as exempt, is sufficiently cohesive to warrant adjudication by representation.
Accordingly, Plaintiff has met the Rule 23(b)(3) predominance requirement.
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2.

Superiority

In addition to predominance, Rule 23(b) requires that Plaintiff show “that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3).

In determining superiority, the Court considers four factors:

(a) the

interest of members of the class in individually controlling the prosecution or defense of separate
actions; (b) the extent and nature of any litigation concerning the controversy already
commenced by or against members of the class; (c) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; and (d) the likely difficulties in
managing a class. Id. After considering these factors, courts “routinely hold that a class
action is superior where, as here, potential class members are aggrieved by the same policy, the
damages suffered are small in relation to the expense and burden of individual litigation and
many potential class members are currently employed by Defendant.” Morris, 2013 WL
1880919, at *14; see also Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311 F.R.D. 590,
622-23 (C.D. Cal. 2015) (“[C]ourts considering wage and hour cases . . . routinely find that the
class action device is superior to other forms of adjudication.”).
With regard to the first and second factors of the superiority inquiry, Plaintiff states that
“[t]his case is the first, and so far only, lawsuit begun by any Lease Operator against Defendants
for unpaid overtime.” Doc. 62 at 23.

Defendants do not dispute this statement. Indeed, there

is no evidence of any interest by individual class members in controlling the prosecution of
separate actions or the existence of any such actions.

Nonetheless, Defendants argue that a

class action is not superior to individual litigation because, given the class members’ alleged
entitlement to “significant amounts of overtime,” their individual claims have “substantial value”
and thus the cost of individual litigation would not outweigh their likely recovery.
26

Doc. 68 at

Case 2:18-cv-00811-MV-GJF Document 134 Filed 11/16/20 Page 27 of 33

25.
Defendants provide no support for this contention, which is belied by the evidence that
Defendants offered only $1,000 per year of service “to compensate” class members for unpaid
overtime under the NMMWA.

Doc. 64-2 at 4.

Given this evidence, the Court agrees with

Plaintiff that, “without class certification, it is likely that the [NMMWA] violations Plaintiff
alleges would go unadjudicated.” Doc. 62 at 24.

Indeed, courts routinely reach this

conclusion under circumstances analogous to those here.

See Bitner, 2016 WL 7480428, at *12

(“[T]here is also no guarantee that class members would bring their own lawsuits, since litigation
costs may outweigh individual damages for many class members.”); Leyva, 716 F.3d at 515 (“In
light of the small size of the putative class members’ potential individual monetary recovery,
class certification may be the only feasible means for them to adjudicate their claims”); Jacob,
289 F.R.D. at 423 (“For a single, potentially misclassified ASM, the impetus to sue an employer
for what might constitute a small economic return is minimal. . . . [T]he burden and expense of
individual litigation would likely be prohibitive for most ASM plaintiffs.”).

In keeping with

this precedent, the Court finds that “[t]he interest of the class as a whole to litigate the
predominant common questions substantially outweighs any interest of individual members to
bring and prosecute separate actions.”

Morris, 2013 WL 1880919, at *15.

The third factor of the superiority test “consists of two prongs:

(i) whether aggregation

is desirable; and (ii) whether the particular court at issue is a desirable forum to adjudicate the
aggregated dispute.” Rodriguez, 2020 WL 3000415, at *18 (citation omitted).

“The first

prong is considered a recitation of the general superiority inquiry while the second prong is
whether the particular court at issue is a desirable forum for the litigation.” Id.
The Court interprets Defendants’ contentions that “[a] class action would be inefficient
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and wasteful” to go toward the first prong of the third factor. Doc. 68 at 27.

In support of that

contention, Defendants rehash their arguments against commonality and predominance, namely,
that “separate analyses of individual evidence will be required to determine whether Mewbourne
is liable to every plaintiff in this case,” and that “a class would provide no meaningful efficiency,
as it would lead to a plaintiff-by-plaintiff damages analysis.” Doc. 68 at 28.

The Court has

addressed and rejected these arguments in the context of commonality and predominance and
rejects them for the same reason here: variation in hours worked by individual class members
is a damages, rather than a liability issue, and “the amount of damages is invariably an individual
question and does not defeat class action treatment.” Delagarza, 2011 WL 4017967, at *17.
Relevant to the instant inquiry, “[w]hile determining damages may well require separate trials, or
at least individualized proof, . . . the need for separate damages trials does not preclude a finding
of superiority.” Bitner, 2016 WL 7480428, at *12; see also Leyva, 716 F.3d at 515 (reversing
district court’s finding that class action was not superior where it based its finding “on the need
to individually calculate damages”). Indeed, “while Defendant[s] points to the possibility that
certain damages issues will be difficult to calculate, on the whole [they do] not demonstrate that
consolidating [] individual actions or requiring plaintiffs to intervene would save the parties or
the Court time or money, or ensure a fairer process for the parties.” Delagarza, 2011 WL
4017967, at *17.

Thus, the issues raised by Defendants “are not substantial enough to

overwhelm the benefits of classwide resolution.” Id.
The Court finds persuasive Plaintiff’s argument that aggregation would promote
“efficiency and expediency,” as “there is no dispute that the Class members were never paid
overtime when paid on a salary-plus-bonus basis.”

Doc. 62 at 24.

As other courts have found,

this Court, too, finds that “a single, class trial on whether a[ ] policy existed is far superior in
28

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terms of efficiency to requiring multiple individual actions seeking resolution of the same
liability question.” Bitner, 2016 WL 7480428, at *12; see also Rodriguez, 2020 WL 3000415,
at *18 (“[J]udicial economy supports aggregation of numerous [NM]MWA claims rather than
numerous individual claims.”); Jacob, 289 F.R.D. at 423 (finding superiority where “[t]he
alleged misclassification [] applie[d] to an entire class of employees’ duties, rather than case-bycase determination”). Thus, aggregation is desirable.
Similarly, this Court is a desirable forum to adjudicate the aggregated dispute.

The class

is limited to those members who worked for Defendants in New Mexico. Thus, “the locus of
the harm, as well as any other events forming the basis of the action,” is in this district.
Rodriguez, 2020 WL 3000415, at *18.

Defendants have presented no evidence to suggest that

this Court would be less convenient or otherwise less desirable than any other forum.
Finally, the fourth superiority factor considers the likely difficulties in managing a class.
According to Plaintiff, given that the class is limited to liability issues only, there should be no
difficulties in managing the class. Doc. 79 at 17.

Rather than addressing Plaintiff’s argument,

Defendants turn the relevant inquiry on its head, arguing not that a class action is unmanageable,
but that “[i]ndividual adjudication would be manageable.” Doc. 68 at 26.

In so arguing,

Defendants rehash their arguments against numerosity, namely that the class is “not
overwhelmingly large,” and that joinder not impracticable.

Doc. 68 at 26-27.

Not only are

these arguments irrelevant in the context of superiority, but also the Court has addressed and
rejected these arguments in finding the numerosity requirement met.
The Court agrees with Plaintiff that there is no indication that managing a class would be
difficult here.

To the contrary, “[g]iven the relatively small size of the putative class and its

discrete geographical location, the Court does not foresee manageability issues precluding
29

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certification.” Rodriguez, 2020 WL 3000415, at *18; see also Jacob, 289 F.R.D. at 423
(finding that the class was manageable where it “constitute[d] fewer than 1,000 putative
members, and [was] concentrated in a single, geographic area, rather than spanning the nation,”
and where the class members’ duties were “more alike than they [were] dissimilar, and as such,
len[t] themselves to determination as a class”). Accordingly, each of the relevant factors
weighs in favor of finding that the Rule 23(b)(3) superiority requirement is met.
C.

Definition of the Class

Plaintiff seeks certification of a class defined as “all of Defendants’ current and former
Lease Operators who, in at least one workweek between June 19, 2009 and June 21, 2017, were
paid a salary with no overtime and who worked for Defendants in New Mexico.”

Defendants

argue that, if the Court finds certification proper, it should limit the class to those individuals
employed as Lease Operators “no earlier than three years before the lawsuit was filed.” Doc.
68 at 29. According to Defendants, this limitation is necessary because New Mexico law
provides that “[a] civil action to enforce any provision of [the NMMWA] shall be commenced
within three years after a violation last occurs.” N.M. Stat. Ann. 1978, § 37-1-5 (2009).
Plaintiff, however, alleges that Defendants engaged in a continuing course of conduct.
“New Mexico law provides that ‘[a] civil action to enforce any provision of [the NMMWA] may
encompass all violations that occurred as part of a continuing course of conduct regardless of the
date on which they occurred.’” Meador v. QES Wireline LLC, No. 17-cv-00586, 2018 WL
6164430, at *3 (D.N.M. June 26, 2018) (quoting N.M. Stat. Ann. 1978, § 50-4-32). Defendants
acknowledge the language of Section 50-4-32 but argue that it should not be interpreted to
permit a plaintiff who “allows three years to elapse before filing” a claim to be part of the class.
Doc. 68 at 29.

According to Defendants, including class members whose only claims date back
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further than three years would be at odds with the three-year limitation period set forth in Section
37-1-5.
The Court does not find Defendants’ argument persuasive. First, this Court has
interpreted Section 50-4-32 to mean that, “where a continuing course of conduct is involved,
there is essentially no limitations period for [a NMMWA] claim,” and the Court has found no
authority to the contrary. Olivo v. Crawford Chevrolet, Inc., No. 10-cv-782, 2011 WL
13137328, at *3 (D.N.M. Sept. 20, 2011).

Further, Defendants do not contest that Plaintiff

himself has brought his claims within the three-year limitations period. Thus, assuming
arguendo that Section 37-1-5 is the operative provision, this action was timely commenced.
Plaintiff alleges a continuing course of conduct, and accordingly, pursuant to Section 50-4-32, all
violations that occurred as part of that course of conduct, regardless of the date on which they
occurred, may be included in Plaintiff’s action. There is nothing in Section 37-1-5 to suggest
that including class members who were affected by that continuing course of conduct would run
afoul of Section 37-1-5.
Moreover, the cases cited by Defendants are inapposite and fail to support their argument
that limitation of the class is warranted.

Defendants cite Cottman v. Naskrent, No. 17-cv-2045,

2018 WL 4335441 (D. Ariz. Sept. 11, 2018), in which the court stated that plaintiffs had “crafted
the putative class without considering, or even acknowledging, the statute of limitations for
actions brought pursuant to the [Arizona Minimum Wage Act].” Id. at *5.

In a footnote, the

court noted that “[t]he AMWA largely mirrors the FLSA and requires that a plaintiff commence
a civil action ‘no later than two years after a violation last occurs, or three years in the case of a
willful violation’; however, a plaintiff may include violations that occurred prior to the statute of
limitations running if part of ‘a continuing course of employer conduct’ and if an act occurred
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within the statute of limitations.” Id. at *5 n.7.

The court in Cottman is silent as to the way in

which the plaintiff did not consider the statute of limitations. Nowhere does the court address,
much less adopt, Defendants’ argument that where, as here, a plaintiff has filed an action within
the applicable limitations period, a putative class may not include individuals against whom
violations occurred outside of the limitations period, where those violations are alleged to be part
of a continuing course of employer conduct.

Defendants also cite Hernandez v. Ray Domenico

Farms, Inc., 414 P.3d 700 (Colo. 2018), in which the court resolved the unrelated question of
when the relevant Colorado statute of limitations begins to run on claims by terminated
employees for previously earned yet unpaid wages. Id. at 704.

Again, the court in Hernandez

did not address or resolve the issue raised by Defendants here.
Finally, Defendants argue that their proposed limitation to the class is warranted because
Plaintiff has not demonstrated that Defendants engaged in a continuing course of conduct, and
that Section 50-4-32 thus does not apply in the first instance. Defendants have provided no
authority to suggest that, at this stage of the litigation, Plaintiff must do more than adequately
allege that Defendants engaged in a continuing course of conduct, which Plaintiff has
successfully done.

In the face of Plaintiff’s well-pled allegations, the Court finds no basis to

conclude at this juncture that Defendants did not engage in a continuing course of conduct.
Thus, Section 50-4-32 is applicable and, pursuant to this Court’s interpretation of that provision,
Plaintiff has properly defined the class.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has satisfied his burden of
affirmatively demonstrating that the Rule 23 prerequisites exist in fact, and that the class that he
has proposed should be certified.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Class Certification for
Liability Only under Rule 23(b)(3) (“Motion for Class Certification”) [Doc. 62] is GRANTED,
as follows:
1.

The Court certifies the following class: all of Defendants’ current and former

Lease Operators who, in at least one workweek between June 19, 2009 and June 21, 2017, were
paid a salary with no overtime and who worked for Defendants in New Mexico.
2.

In accordance with this Court’s July 2020 Opinion, Defendants shall notify any

individual who signed a Release of the right to invalidate that Release and participate in this
action for purposes of pursuing NMMWA claims against Defendants.

DATED this 16th day of November 2020.

MARTHA VÁZQUEZ
United States District Judge

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