Garcia Sanchez v. R&R Multi-Trade Construction Services, LLC

Filing 51

MEMORANDUM ADOPTING 48 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE granting 36 Motion to Certify Class. Signed by District Judge Amos L. Mazzant, III on 11/21/2018. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

VICTOR GARCIA SANCHEZ and VICTOR
GARCIA CABRERA, on Behalf of Themselves
and on Behalf of All Other Similarly Situated,
Plaintiffs,
v.
R&R MULTI-TRADE CONSTRUCTION
SERVICES, LLC, JOSE ROBERTO GALVAN,
and BRIAN REGAL,

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 4:17-CV-469

Defendants.
MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this
action, this matter having been heretofore referred to the Magistrate Judge pursuant to
28 U.S.C. § 636. On October 25, 2018, the report of the Magistrate Judge (the “Report”)
(Dkt. #48) was entered, containing proposed findings of fact and recommendations that
Plaintiffs Victor Garcia Sanchez and Victor Garcia Cabrera’s (collectively, “Plaintiffs”)
Motion for Conditional Certification and Approval of Class Notice (the “Motion”) (Dkt.
#36) be granted, the class be conditionally certified, and within fourteen days after adoption
of the Report, Defendants be required to provide to Plaintiffs certain employee information
for notice. See Dkt. #48. The Report further directed the parties to confer regarding the
proposed notice and consent forms.1 Id.

1

On November 6, 2018, the parties filed a Stipulation Regarding the Consent of the Notice of Rights and
Consent, and Method of Distribution. See Dkt. #50.

Defendants R&R Multi-Trade Construction Services, LLC, Jose Roberto Galvan,
and Brian Regal (collectively, “Defendants”) filed objections to the Report (the
“Objections”) (Dkt. #50). The Court has made a de novo review of the objections raised by
Plaintiff and is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and the objections are without merit as to the ultimate findings of the Magistrate
Judge. The Court hereby adopts the findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court.
The Court finds Defendants’ Objections contain the same arguments made in their
response in opposition to the Motion (Dkt. #37). Defendants primarily object to the
Magistrate Judge’s evaluation of the evidence submitted by Plaintiffs, which Defendants
argue is lacking or insufficient. See generally Dkt. #49. Although the evidence presented
here is far from overwhelming, the Court determines that Plaintiffs have satisfied their
burden at this stage of the proceedings. As the Magistrate Judge explained, Plaintiffs do not
have a heavy burden at the notice stage of the two-stage Lusardi analysis. See Dkt. #48 at 3
(citing Lusardi v. Xerox, Corp., 118 F.R.D. 351 (D. N.J. 1987)). There must only be a
“reasonable basis” to believe that other aggrieved individuals exist. Black v. Settlepou, P.C.,
2011 WL 609884, at *3 (N.D. Tex. 2011) (citing Tolentino v. C & J Spec–Rent Serv., Inc.,
716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (internal citations omitted)). The Court, therefore,
agrees with the Magistrate Judge’s finding that there is a reasonable basis to suggest a class
of similarly situated employees exists who want to opt-in to the lawsuit. Furthermore, should
other similarly situated employees eventually be found not to exist, this issue may be raised
at the decertification stage.

2

Defendants also attempt to distinguish the varying job duties of workers who “fell
within the broader categories of demolition and renovation work.” Dkt. #49 at 4. However,
regardless of whether every worker performed the same duties, the Court finds no error in
the Magistrate Judge’s conclusion that the duties are similar enough to meet Plaintiffs’
burden at this stage. See Walker v. Honghua Am., LLC, 870 F.Supp.2d 462, 468
(S.D.Tex.2012) (citing Tolentino, 716 F. Supp. 2d at 653 (“Slight differences in job duties
or functions do not run afoul of the similarly situated requirement.”)).
Defendants’ objection to nationwide notice is similarly unavailing. As the Magistrate
Judge noted, Defendants admit they hired workers similar to Plaintiffs to work on
construction projects nationwide, hiring such workers as independent contractors and paying
them at a day rate. Dkt. #48 at 9. Accordingly, the Court agrees with the Magistrate Judge
that there is sufficient evidence of similar pay practices at Defendants’ other projects around
the country such that nationwide notice is proper.
Based on the foregoing, the Court finds that Plaintiffs have met the lenient burden
imposed under the first stage for conditional certification. Furthermore, because Defendants
will have the opportunity under stage two of Lusardi to assert a motion to decertify the
collective action if, after discovery, they can show that the class members are not similarly
situated, the Court sees no basis to deny Plaintiff’s motion. Tice v. AOC Senior Home Health
Corp., 826 F. Supp. 2d 990, 996-97 (E.D. Tex. 2011). Accordingly, Defendants’ Objections
(Dkt. #49) are OVERRULED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Conditional
Certification) (Dkt. #36) is GRANTED.

3

IT IS FURTHER ORDERED that this case shall proceed as a collective action with
the Class Members defined as:
All current and former day rate paid workers, who worked for
Defendant R&R Multi-Trade Construction Services, LLC, at any
location throughout the United States from three years prior to the date
of this Memorandum Adopting Report and Recommendation to the
present.
IT IS FINALLY ORDERED that within fourteen days of this Memorandum
Adopting Report and Recommendation, Defendants shall provide Plaintiffs’ counsel the
names, all known addresses, all phone numbers (home, mobile, etc.), all personal email
. addresses, and date of hire, and the most recent date worked for the class members as defined
above in a computer-readable format within. The information should be verified as complete
and accurate by one of Defendants’ corporate representatives.
IT IS SO ORDERED.
SIGNED this 21st day of November, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

4