Diaz v. Applied Machinery Corporation
Filing
65
MEMORANDUM OPINION AND ORDER granting in part, denying in part 49 MOTION for Class Certification and Expedited Discovery. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ENTERED
June 24, 2016
David J. Bradley, Clerk
RODOLFO DIAZ, On Behalf of
Himself and Others Similarly
Situated,
Plaintiffs,
Civil Action No . H-15-1282
APPLIED MACHINERY CORP.,
NABORS CORPORATE SERVICES,
INC ., and NABORS INDUSTRIES,
INC .,
Defendants.
ABEL ORTEGA , et a1., on
Behalf of Themselves and
Al1 Others Similarly
Situated,
Plaintiff,
Civil Action No . H-15-2674
A PPLIED MACHINERY CORP .,
NABORS CORPORATE SERVICES,
INC ., and NABORS INDUSTRIES,
INC .,
Defendants.
MRMOQAHDUM OPIN ION AHn ORDER
Plaintiffs, Rodolfo Diaz, and 34 other individuals, on behalf
of them selves and
others similarly situated, bring this action
against defendants, Applied Machinery Corporation (
MAMC'), Nabors
'
Corporate
Services,
Inc w
(
collectively, nNabors/),
/
and
Nabors
Industries,
recover unpaid overtime wages and
other damages under the Fair Labor Standards Act ('
'FLSA/), 29
/
U.S.C. 5 216(
b). Pending before the court is Plaintiffs' Partially
Opposed Motion
for
Class Certification
(
Docket Entry No.
Expedited
Discovery
After considering plaintiffs' motion,
Defendants Nabors Corporate Services, Incw and Nabors Industries,
Inc .'s Response
Opposition to Plaintiffs' Partially Opposed
Motion for Class Certification & Expedited Discovery (
Docket Entry
Plaintiff's Reply in Support of Plaintiffs' Partially
Opposed Motion
for Class Certification
(
Docket Entry No.
Expedited
Discovery
and the applicable law, the court concludes
that the pending motion should be granted as to a11 current and
former nrig welders' who were
'
jointly employed by Applied Machinery
Corporation and by Nabors Corporate Services, Inc., and/or by
Nabors Industries,
at App lied Machinery Corporation's Conroe,
Texas location w ithin the three-year period immediately preceding
entry of this Memorandum Opinion and Order.
1.
A.
Factual A llecations and Procedural Backqround
Factual A llegations
Plaintiffs allege that in June 2013, Nabors hired AMC to help
build drilling rigs for its fleetx
Plaintiffs allege that during
the relevant statutory period the defendants hired them and others
work as welders, that they and other welders typically worked
excess
forty (
40) hours
week, but were not paid overtime
l
plaintiffs' Consolidated Complaint, Docket Entry No . 28,
%
-
2-
wages .z
Plaintiffs allege that instead of paying overtime wages,
defendants paid them and other welders at their normal day
hourly-rates .? Plaintiffs allege that
(
a)l1 rig welders employed by AMC and Nabors are
similarly situated to (
themq because they (
1) have
similar job duties; ( regularly work in excess of forty
2)
hours per week; ( are not paid overtime for the hours
3)
they work in excess of forty per week as required by 29
U . C . 5 207 ( 1) and ( are entitled to recover their
S.
a)(
4)
unpaid overtime wages, liquidated damages and attorneys'
fees and costs from AMC and Nabors pursuant to 29 U .S.C .
5 216 (
b).4
B.
Procedural Background
On May 13, 2015, plaintiff, Rodolfo Diaz, filed this action
against AMC alleging willful violation of the FLSA X
On September 14,
2015, Abel Ortega and 33 other plaintiffs filed suit against AMC
a separate action, i .e ., Civil Action No . 4:15-cv-2674, also alleging
violations of the FLSA .6
On October 20, 2015, AMC answered the
original complaint filed
this actionx
On November 20, 2015, the
2Id . at 6 % 16 and 8 %
3 . at 8 %% 30, 33 and 9 % 34.
Id
4Id . at 9 % 39 .
spkaintiff's Original Complaint , Docket Entry
6original
Complaint
and
Motion
for
Collective
Action/certification, Docket Entry No. 1 in Civil Action No . 4:15cv-2674.
V
Applied Machinery Corporation's Original Answer , Docket Entry
20.
two cases were consolidated ,8 and on January 8, 2016, Plaintiffs'
consolidated Complaint was filed joining Nabors Corporate Services,
Incw
and Nabors Industries, Inc. as defendantsx
2016,
the
Nabors
defendants
answered
On February
plaintiffs'
consolidated
complaintx o on April 22, 2016, the plaintiffs and AMC stipulated to
conditional class certification and noticex l On May 5, 2016, the
parties filed a Joint Motion to Withdraw Plaintiffs' Stipulation re:
Conditional Certification and Noticex z The next day the court held
a hearing at which the parties' joint motion to withdraw conditional
certification and notice was granted, and plaintiffs were directed to
file a motion for conditional class certification within
days.l On May 16, 2016, plaintiff filed the pending motion for class
3
certification
and
following class :
expedited
discovery
seeking
certify
the
'Al1 current and former 'rig welders' who worked
'
8Hearing Minutes and Order, Docket Entry No . 24 C' No. H-15CA
2674 consolidated into CA No . H-15-12822 . H-15-1282 will be the
lead case.').
'
gplaintiffs' Consolidated Complaint, Docket Entry No .
lo
Nabors Corporate Services, Inc . and Nabors Industries, Inc .'s
Answer to Plaintiffs' Consolidated Complaint , Docket Entry No . 35 .
ll
stipulation Re: Conditional Certification and Notice, Docket
Entry No. 39, p. 2 % 1 (
uplaintiffs and Defendant Applied Machinery
Corporation agree to conditional certification and issuance of
notice to a1l welders, fitters, blasters, and painters who provided
services to Applied Machinery Corporation in the last 3 years.v).
l
zDefendants' Nabors Corporate
Services ,
Inc., Nabors
Industries, Inc . & Applied Machinery Corporation's Joint Motion to
Withdraw Plaintiffs' Stipulation RE : Conditional Certification and
Notice, Docket Entry No . 46 .
H Hearing Minutes and Order , Docket Entry No . 47 .
-
4-
for Applied Machinery Corporation and/or Nabors Industries, Incw its
parents, subsidiaries or affiliates during the last three years ./ 4
/'
Plaintiff's motion asks the court to
(
1) conditionally certify this case g
as a) collective
action pursuant to 29 U.S. 5 2l6(
C.
b); ( authorize the
2)
issuance
(
3)
of
order
notice
to
Defendants
potential
to
class
produce
members;
verified
and
contact
information for a1l urig welders' who worked for Applied
'
Machinery Corporation and/or Nabors Industries, Inc., its
parents, subsidiaries or affiliates during the last three
years so that notice may be timely implementedx s
Attached thereto is a proposed nNotice
Applied Machinery and/or
Nabors Industries Rig Welders z/l
6
June
2016,
defendant
filed
response
plaintiff's motion for class certificationx ?
opposing
Nabors argues that
plaintiffs motion for conditional class certification should be
denied because
plaintiffs
have
aggrieved individuals exist;
failed
show
that
other
that the putative class members are
similarly situated; and ( that other aggrieved individuals want to
3)
join this collective actionx 8 Nabors also argues that nconditional
certification
inappropriate
this case as the determination
n plaintiff's Partially Opposed Motion for Class Certification
& Expedited Discovery (
nMotion for Certification/), Docket Entry
/
No . 49, p . 3 .
15yd . at
l6
Exhibit I to Motion for
49-9 .
U Defendants Nabors Corporate Services, Inc ., and Nabors
Industries, Inc .'s Response in Opposition to Plaintiffs' Partially
Opposed Motion for Class Certification & Expedited Discovery
(
nDefendants' Responsef), Docket Entry No. 59.
'
l8 . at pp . 7-13 .
Id
an
employment
relationship
with
Nabors
require
highly
individualized analysis of each plaintiff's circumstances./lg Nabors
/
contends that ' sqome rig welders are employed by Nabors, but many
'E
others, like the Plaintiffs, are independent contractors .'zo
'
On June 13, 2016, plaintiffs filed a reply in which they argue
that Nabors' arguments are without merit and they urge the court to
grant their Motion for certification .z
l
II . Aopiicablp Law and Standard of Review
The
FLSA
requires
covered
employers
pay
non-exempt
employees for hours worked in excess of defined maximum hours,
207(
a), and allows employees to sue their employers for
violation of its hour and wage provisions . See 29 U . .C . 55 215S
An employee may sue his employer under the FLSA on 'behalf of
'
himself
and other employees sim ilarly situated . No emp loyee
shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed
in the court in which such action is brought.' 29 U.S. 5 216(
'
C.
b).
Although 5 216( neither provides for court-authorized notice nor
b)
l9gd
r
at
20 .
Id
(
citing Exhibit A, Affidavit of Randy Lagrimini
(
nLagrimini Affidavit'), Docket Entry No. 59-1, % 4, and
'
Declaration of Joe A. Schelebo (
uschelebo Declaration'), Docket
'
Entry No. 59-2, % 2).
z
lplaintiffs' Reply in Support of Plaintiffs' Partially Opposed
Motion for Class Certification & Expedited Discovery (
nplaintiff's
Reply'), Docket Entry No. 61.
'
-
6-
requires certification for a representative action under the FLSA ,
certification has been recogn ized as a useful case managem ent tool
for
district
courts
appropriate
employ
Hoffmann-La Roche Inc. v. Sperlinc,
collective action allows
cases.
482, 486 (
1989)
plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources .
judicial system benefits
efficient resolution
one
proceeding of common issues of 1aw and fact arising from the same
alleged
When
activityp').
'
plaintiff seeks certification to bring a collective
action on behalf of others and asks the court to approve a notice
potential plaintiffs,
court has discretion
approve the
collective action and facilitate notice to potential plaintiffs .
Soerlinc,
Ct. at 486-87 (
ADEA actionliz Villatoro v. Kim Son
z
Restaurant, L .P., 286
Supp.
(
S.D. Tex. 2003) (
FLSA
action). The court also has discretion to modify the proposed class
definition
if
is
Communications, Inc.,
overly
404
broad .
F.3d
(
recognizing the court's power
930,
See
931-32
Baldridge
(
5th
v.
SBC
2005)
nlimit the scope' of a proposed
'
2
2sperlinq was an action brought under the A ge Discrimination
in Employment Act IA
'ADEA/I, but it is informative here because the
/
ADEA explicitly incorporates Section 216(
b) of the FLSA to also
provide for an uopt-in' class action procedure for similarly'
situated employees. 110 S. Ct. at 486 (
nWe hold that district
courts have discretion, in appropriate cases, to implement 29
U. C. 5 216(
S.
b) (
1982 ed.), as incorporated by 29 U .S.C. 5 626(
b)
(
1982 ed.), in ADEA actions by facilitating notice to potential
plaintiffs.').
'
class in a FLSA action). See also Heec v . Adams Harris, Inc., 907
Supp. 2d 856, 861 ( D. Tex. 2012) ( court also l
S.
nA
has the power
to modify an FLSA collective action definition on its own'
'
proposed
class definition
does not
encompass
situated employees.r/
/). Because collective
only
the
similarly
actions may
reduce
litigation costs for the individual plaintiffs and create judicial
efficiency, courts favor collective actions when common issues of
1aw and fact arise from the same alleged activity . Sperlinq , 11O S.
486-87 .
The term 'similarly situated' is not defined
'
'
See, e .c ., 29 U .S .C .
the FLSA .
The
to set
specific standard for courts
apply when considering whether
employees are sufficiently similar
support maintenance
representative action . See Mooney v . A ramco Services Co ., 54 F .3d
1207,
1995) (
expressly declining to decide which of
these two analyses is appropriate), overruled on other arounds bv
Desert Palace, Inc. v. Costa,
2148 (
2003). 3
2
Courts
faced with this issue typically apply one of two standards, i.e .,
two-step analysis described
F.
R.D.
Lusardi v . Xerox Corp w
( N . 1987), or the uspurious class action' analysis
D. J.
'
23
Moonev was an action brought under the ADEA , but it is
informative here because the A DEA explicitly incorporates Section
216(
b) of the FLSA to also provide for an 'opt-in' class action
'
'
procedure for similarly-situated employees . See Mooney, 54 F.3d at
1212 .
-
8-
described in Shushan v . University of Colorado,
( Colo. 1990).
D.
F .R .D . 2 63
See Moonev, 54 F.3d at 1213-16.
The Lusardi analysis proceeds
two stages:
decertification stage .
stage, followed by
Cinqular Wireless LLC, 553 F.3d 913, 915-16 n.
(
citations omitted).
notice
See Sandoz v .
(
5th
2008)
At the notice stage the court makes a
decision , usually based solely on the pleadings and any affidavits
that
have
been
submitted,
whether
conditionally and give notice
Moonev, 54 F.3d at 1213-14 .
to
certify
the
class
potential class members.
See
The decision is made nusing a fairly
lenient standard' because the court often has m inimal evidence at
'
this stage of the litigation .
uappear
Id . at 1214 .
Courts,
fact,
require nothing more than substantial allegations that
the putative class members were together the victim s of a single
decision, policy or plan.'
'
Id.
(
quoting Soerlina v.
Hoffman-La Roche, Inc., 118 F.
R.D. 392, 407 ( N.J. 1988)). Thus,
D.
notice
stage
analysis
typically
results
certification of a representative class .
Id .
conditional
A fter conditional
certification the nputative class members are given notice and the
opportunity
Aopt-in .'' Id .
'
After notice issues the action
proceeds as a representative action .
The
second
'decertification
'
stage
stage'
'
the
Id .
Lusardi
typically
approach
precipitated
the
by
defendant filing a motion to decertify after the opt-in period has
concluded and discovery is largely complete .
Id . 'At this stage,
'
the court has much more information on wh ich to base its decision,
and
factual determination
makes
question .'
'
Id .
the court finds
made up of sim ilarly situated persons,
on
the
similarly
situated
claimants are no longer
decertifies the class and
dismisses the opt-in plaintiffs without prejudice. If the class is
still similarly situated, the court allows the collective action
proceed .
Id .
The Shushan analysis follows a procedure that is similar to
the class certification procedure used under Federal Rule of Civil
Procedure 23 ('
'Rule 23').
'
Shushan espouses the view that 5 16( of the Fair Labor
b)
Standards Act (
FLSA) merely breathes new life into the
so-called '
'spurious' class action procedure previously
'
eliminated from E
Rule 235. Building on this foundation,
the court determined that Congress did not intend to
create a completely separate class action structure for
the FLSA and A DEA context, but merely desired to limit
the availability of Rule 23 class action relief under
either Act . In application , the court determ ined that
Congress intended the '
'similarly situated' inquiry to be
'
coextensive with Rule 23 class certification . In other
words, the court looks at 'numerosity,' ncomm onality,'
'
'
'
ntypicality' and uadequacy of representation' to
'
'
determ ine whether a class should be certified . Under
this methodology, the primary distinction between an
.
.
E
FLSA) representative action and a E
Rule 23q class
action is that persons who do not elect to opt-in to the
.
(
FLSA J representative action are not bound by its
results. In contrast, Rule 23 class members becom e party
to the litigation through no action of their own, and are
bound by its results.
Moonev,
F.3d at 1214.
While the Fifth Circuit has explicitly left open the question
of whether the Lusardi approach, the Shushan approach ,
some
third approach should be used in determining whether employees are
sufficiently sim ilar to support maintenance of
action, see
Moonev,
representative
F.3d at 1216, because Shushan applies the
analysis used for class actions brought under Rule 23, and because
the Fifth Circuit has described Rule
uopt out' procedure as
'
fundamentally and irreconcilably different from 5 216 (
b)'s 'opt in'
'
'
procedure, see Lachapelle v . Owens-lllinois, Inc ., 513 F .2d 286,
288
1975) (
per curiam), most courts in this district
follow the Lu sardi approach .
See Sandoz, 553 F .3d at 915
See also Tolentino v . C & J Srec-Rent Services Inc w
F. Supp .
2d 642, 646 (
S.D. Tex. 2010) (
collecting cases).
This court,
therefore,
also follow the Lusardi approach .
At this initial state of the Lusardi approach , a plaintiff
need only make a m inimum showing
notice to potential class members .
persuade the court
issue
Mooneyr 54 F.3d at 1214 .
In
the absence of Fifth Circuit guidance on the appropriate test
use at this stage of the
analysis, courts are split
the
appropriate elements to consider . Some courts use three elements,
requiring the plaintiff to show that :
there is
reasonable
basis for crediting the assertion that aggrieved individuals exist ;
those aggrieved individuals are sim ilarly situated
plaintiff
relevant
respects given
claim s and defenses
asserted; and ( those individuals want to opt
3)
See, e .c ., Heec, 907 F. Supp .
the
the lawsuit.
Tolentino, 716 F . Supp .
at 649-53. Other courts, however, have rejected the third element
aS non-statutory .
See, e .G ., Drever v . Baker Huqhes Oilfield
Operations, Inc., Civ il Action No . 4:08-cv-1212, 2008 WL 5204149,
at
( D. Tex. Dec. 11, 2008)
S.
Because the third element is not
statutorily required and because requiring evidence
putative
class members who are willing to join a collective action before an
appropriate class has even been defined conflicts with the Suprem e
Court's directive that the FLSA be liberally construed to effect
its purposes, see Tonv and Susan Alam o Foundation v . Secretarv of
-
Labor, 105 S .
1953, 1959
(
1985), the court agrees that
plaintiff need not present evidence of the third element at this
stage of the litigation .
111 . Analvsis
A.
Class Certification
Nabors
urges
the
court
deny
pending m otion
conditional class certification because N pllaintiffs' E
'E
mlotion
fails to provide some factual basis for the existence of
wide policy or p ractice as to Nabors that violated
class18W '24
'
Asserting that Ml
pllaintiffs are independent contractors,'z Nabors
's
argues that ' pllaintiffs have only provided unsubstantiated,
'l
conclusory declarations and a handful of paystubs as evidence .'z
'6
M Defendants' Response, Docket Entry No .
25 . at 2 (
Id
citing Exhibit A, Lagrimini Affidavit, Docket Entry
No . 59-1, % 4, and Exhibit B , Schelebo Declaration , Docket Entry
No. 59-2, % 2).
2
6:d
at
Whether There Is a Reasonab le Basis for Creditina
A ssertion that Other Aacrieved Individuals Exist
To
satisfy the
first element under the Lusardi analysis
plaintiff need only show that there
reasonab le basis
believing that other aggrieved individuals exist .
Supp .
declarations
862.
of
Attached
Heea, 907
plaintiffs' motion are
four of the plaintiffs
named
Plaintiffs'
Consolidated Complaint (
Docket Entry No. 28): Adolfo Diaz, Rodrigo
Campos, Abraham Francisco Puga-Reyna , and Ricardo Colmenares. A11
these declarants state that they were employed as rig welders
jointly by AMC, Nabors Corporate Services, Inc., and/or Nabors
Industries, Inc w
that they were paid at an hourly rate, that
despite routinely working more than forty hours per week they did
not receive overtime
at one and
half times their regular
hourly rates, and that based on their observations, other
welders who worked for the defendants were paid the same way, i.e .,
they were paid an hourly rate, denied overtime
and
they
learned about this lawsuit , many of them would be interested
joining. 7 Also attached to plaintiffs' motion are copies of twelve
z
Diaz's pay stubs showing
only that he worked over forty
2 See Declaration of Rodolfo Diaz ('
7
%Diaz Declarationv), Exhibit
A to Motion for Certification , Docket Entry No . 49-1: Declaration
of Rodrigo Campos (A
'campos Declaration'), Exhibit B to Motion for
'
Certification , Docket
Entry No . 49-2 ) Declaration of Abraham
Francisco Puga-Reyna
(
npuga-Reyna Declaration'), Exhibit C to
'
Motion for Certification, Docket Entry No . 49-37 and Declaration of
Ricardo Colmenares (
ucolmenares Declaration'), Exhibit L to Motion
/
for Certification , Docket Entry No . 49-12 .
hours per week, but also that he was paid the same hourly rate for
al1 the hours that he
worked .2
8
Nabors argues that the evidence attached to plaintiffs' Motion
for
Certification
does
provide
reasonable
basis
that
similarly aggrieved individuals exist .29 citing Shanks v . Carrizo
0i1 & Gas, Inc., Civil A ction No . 4 :12-cv-3355, 2013 WL 6564636, at
2013), and Simmons v. T-Mobile USA,
(
S.D. Tex. December
Inc w Civil Action No . 4:06-cv-1820, 2007 WL 210008, *4 (
S.D. Tex.
2007), Nabors argues that
declarants state that ' bqased on my observations, the
'l
other rig welders that worked for Defendants were paid
the same way I was paid (
i.e., they were denied overtime
pay at one and one-half times their regular rates for
hours worked over forty in a workweekl.' None of the
'
declarants describe what they observed , who they
observed , or the facts that 1ed them to the conclusion
that they were paid similarly .
In short, the
declarations are wholly inadequate as to providing the
necessary support as to why a class should be certified
against Nabors . Plaintiff's Motion should be denied as
Plaintiffs fail to show that there is a reasonab le basis
that aggrieved individuals exist .30
Nabors' reliance on Shanks and Simmons
the evidence
offered
m isplaced because
the existence of other aggrieved individuals
support
of
applications
conditional
certification that were denied in those cases was far less than the
evidence offered here .
In Shanks,
2013 WL
6564636,
28
see Exhibit D to Motion for Certification ,
No . 49-4 .
z
gDefendants' Response, Docket Entry
3 (d .
0
+5,
Docket Entry
pp . 7-10.
conditional certification was denied because the plaintiff,
worker in one oilfield, subm itted only his own affidavit in support
of
proposed
class
comprised
throughout the country .
employees
from
oilfields
In Simmons, 2007 WL 210008,
the
court held that the plaintiff had produced evidence that other
aggrieved individuals exist, but that the evidence was largely
about retail sales representatives, not about the job category
which
plaintiff
was
seeking
conditional
supervisory retail sales representative .
stated that
certification ,
i.e .,
Nevertheless, the court
would nassume without deciding that Simm ons has
established Aa reasonable basis for crediting the assertions that
aggrieved individuals exist .'' Id . at
'
Plaintiffs
reply
that
the
existence
other
aggrieved
individuals is evidenced not only by the four declarations attached
to their motion but also by the fifty individuals who are either
named plaintiffs or who have filed consents
join this case. 1
3
The fifty individuals plaintiffs reference appear
the
plaintiffs named in the Consolidated Comp laint filed on January 8,
2016,3 and the 15 individuals on whose behalf consent forms have
2
been filed .
The Clerk's Docket List shows that in September and
M plaintiffs' Replyr Docket Entry No .
H plaintiffs' Consolidated Complaint , Docket Entry No . 28 . The
35 named p laintiffs are the individual plaintiff originally named
in this action (
Rodolfo Diaz), and the 34 plaintiffs originally
named in Civil Action No . 4 :15-cv-2674 which was dism issed at the
hearing held on May 6, 2016. See Hearing Minutes, Docket Entry
No . 47 .
October of 2015 consents to join this action were filed for six
individuals: Joel
Hernandez
(
Docket
Hernandez (
Docket Entry No.
Entry
Alberto Ayala,
(
Docket
(
Docket Entry
(
Docket Entry No.
(
Docket Entry No. 21).
Arnoldo
Eleazar Hernandez,
Eliazar Hernandez,
Entry
No.
and Guadalupe Vega
The Clerk's Docket List also shows that
since plaintiffs filed their Motion for Certification, consents to
join this case have been filed for an additional nine individuals:
Alejandro Sanchez (
Docket Entry
Carlos Morales (
Docket
Entry No. 52); Juan Abadia (
Docket Entry No. 53); Juan Najer
(
Docket Entry
54); Marin Sierra (
Docket Entry
Omar
Penaloza (
Docket Entry No. 56); Roberto Lara (
Docket Entry No.
Walter Hernandez (
Docket Entry
(
Docket Entry No. 64).
and Ignacio Hernandez
By submitting the declaration
the
original plaintiff, Diaz, and the declarations of three individuals
who were plaintiffs
plaintiffs
the consolidated case and are now named
this
action,
i .e.,
Campos,
Puga-Reyna,
and
Colmenares, and by pointing to consents filed on behalf of an
additional
fifteen
individuals, plaintiffs have
established
reasonable basis for crediting their assertions not only that other
aggrieved
individuals
exist,
but
also
individuals want to join this lawsuit.
that
other
aggrieved
Whether Other Aaarieved
Situated to Plaintiff
To
satisfy
the
second
Individuals
element
the
similarly
situated
persons
Similarlv
Lusardi
plaintiff must demonstrate a reasonable basis
class
Are
analysis
believing that a
exists.
See
Heec , 907
(
citing Lima v. International Catastrophe
Supp .
Solutions, Inc., 493
Supp . 2d 793, 798 (
E.D. La. 2007)).
nPotential class members are considered similarly situated to the
nam ed plaintiff
they are 'sim ilarly situated
requirements
sim ilarly
and
provisions.r'
'
Id .
(
quoting
situated
Rvan
terms of
payment
te rm s
v. Staff
Care,
Incw
497
Supp . 2d 820, 825 (
N.D. Tex. 2007) (
citing Dyback v. State of
Florida Department of Corrections,
1991)).
collectively
F.2d 1562, 1567-68 (
11th
court may deny plaintiffs' right
if
the
action
arises
personal to the plaintiff, and
from
proceed
circumstances
purely
from any generally applicable
rule, policy, or practice.f' Id. (
'
quoting England v . New Centurv
Financial Coro w 370 F. Supp. 2d 504, 5O7 ( .D. La. 2005)).
M
Nabors argues that the Motion
denied because ' pllaintiffs have
'E
Certification should be
identified
class
individuals that can properly be considered similarly situated ./33
/
Citing affidavits of Nabors employees, Randy Lagrim ini, Director of
Capital Equipment Sourcing for Nabors Corporate Services, Inc w and
Schelebo , Operations Superintendent
M Defendants' Response, Docket Entry
the
Operations
Department at Nabors International, Inc w
the Nabors defendants
contend that
Plaintiffs propose an overly broad class of ' alll
Al
current and former Arig welders' who worked for Applied
Machinery Corporation and/or Nabors Industries, Incw its
parents, subsidiaries or affiliates during the last three
years (
emphasis addedl.'
'
Plaintiffs' proposed class
would potentially include al1 rig welders, regardless of
classification as an employee or independent contractor,
exempt status, and work location , for b0th Nabors and
AMC . Nabors currently operates in 18 countries, and
utilizes rig welders as independent contractors and
employees in numerous locations.
Nabors classifies
workers as emp loyees or independent contractors based on
factors such as the nature and duration of the project or
work, the level of supervision Nabors provides , and the
needs of the company, among other factors . Additionally ,
rig welders classified as employees of Nabors are subject
to different policies, procedures, and pay practices, as
compared to independent contractors.
Plaintiffs were a11 classified as independent contractors
and worked at AMC 'S Conroe, Texas location . None of the
Plaintiffs who have joined this suit were classified as
employees of AMC , much less classified as emp loyees of
Nabors . Further, there is no evidence that Plaintiffs
worked at any locations owned or operated by Nabors, nor
is there evidence that any of the Plaintiffs worked on
projects other than the Nabors/AMc project.
Despite
solely relying upon four conclusory declarations,
Plaintiffs fail to address any of these critical
specifics about the other current and former individuals
whom they wish to include in a collective action or why
the class should be broader than one lim ited to the AMC
yard in question for the specific Nabors project. 4
3
Lagrim ini states in relevant part :
Nabors Industries, Incw
and Nabors Corporate
Services,
Incw
and
their
subsidiaries
and
affiliates
(
collectively,
'Nabors')
'
'
operate
approximately one hundred forty-six (
146) land
drilling rigs in fourteen (
14) countries and
operate thirteen (
13) offshore rigs in seven (
7)
3 . at 10-11.
4Id
-
18-
countries .
In total, Nabors currently operates in
eighteen (18) different countries. Many different
types of workers are required to operate the
onshore and offshore rigs, including rig welders.
Rig welders provide services in many different
countries .
Some rig welders are employed by
Nabors . As employees, they would receive paychecks
from Nabors, which would include overtime pay, and
they
would
be
subject
to
the
policies
and
procedures of Nabors as well as the policies and
procedures of the specific rig and/or location in
which they worked .
Nabors also utilizes many rig welders on a contract
basis.
Rig welders who work as independent
contractors are used for specific projects. Whether
a worker is classified as an independent contractor
or employee depends on factors such as the nature
and duration of the project or workr the level of
supervision Nabors providesr and the needs of the
company, among other factors .3s
Schelebo states in relevant part :
In the fall of 2013, I worked as the Operations
Superintendent for the Rig Operations Department at
Nabors . From the fall of 2013 through the summ er
of 2015, I was assigned to work at Applied
Machinery
Corporation's
I
UAMC')
'
Conroe,
Texas
facility .
AMC
agreed
to
provide
repair,
refurbishment, and maintenance services for 9 of
Nabors's rigs. A s the Operations Superintendent
for the Rig Operations Department at Nabors, I was
responsible for ensuring that the rigs were
repaired and refurbished as needed .
There were many workers at AMC'S Conroe, Texas
facility who were working on Nabors's rigs . Many
of the workers were not employed by Nabors . For
example none of the rig welders were employees of
Nabors.
I did not have regular contact with many of the rig
welders . The rig welders I spoke to regularly were
MLagrimini Affidavit , Exhibit
Docket Entry No . 59-1, %% 2-4.
Defendants' Response,
Juan
Hernandez,
Sr .
and
Juan
Hernandez,
Jr .
(
collectively, the nHernandezes'). I would provide
/
information to the Hernandezes about the scope of
the work that needed to be completed .
The
Hernandezes would decide how many rig welders would
be needed, they would find the rig welders, and
they would choose which reg welders to use . It was
my understanding that the Hernandezes were not
employees of Nabors or AMC .
Typically, rig welders would provide their own
trucks and their own personal welding equipment and
supplies .
.36
Nabors argues that the evidence provided by Lagrimini and
Schelebo
shows that
' cqonditional certification
'l
inappropriate in the case at hand g
because pjlaintiffs' proposed
class seeks a11 current and form er rig welders, regardless of the
classification or location .' R Nabors argues that
''
(
pqlaintiffs' overly broad class size would include rig
welders employed by Nabors and others utilized by Nabors
as independent contractors . The class size would also
encompass the rig welders utilized by Nabors in 18
countries, working in a myriad of conditions and on a
variety of different projects. Moreover, the putative
class size would include uNabors Industries, Inc w
parents, subsidiaries or affiliates./3
/8
its
Citing Tucker v . Labor Leasina, Inc., 872 F.supp. 941, 948 (
M.D.
Fla. 1994), and Harper v. Lovett's Buffet, Incw
F.
R.D. 358,
363 ( . Ala. 1999), Nabors argues that courts often refuse to
M D.
M schelebo Declaration, Exhibit B
Docket Entry No . 59-2, 1% 1-4.
M Defendants' Response, Docket Entry
3 Id . at
8
-
20-
Defendants' Response ,
authorize
notices
to
putative
class
encompassing
multiple
locations when practices at only one location are in evidence .3g
The evidence attached to plaintiffs' Motion for Certification
shows that at least four individuals (
Diaz, Campos, Puga-Reyna, and
Colmenares) worked for the defendants in the same position, i.e.,
as rig welders, at the same location, and were a11 paid the same
way, i.e ., at an hourly rate , and were not paid overtime for worked
performed
excess of forty hours per week .4
0
Evidence attached
to Nabors' response including b0th the Schelebo Declaration and the
responses
Nabors'
interrogatories
plaintiffs worked at AMC'S location
show
that
a1l
of
the
Conroe, Texas .4
l
Nabors does not dispute that plaintiffs and other rig welders
working at AMC'S Conroe , Texas, location were similarly situated in
terms of job requirements, that they were al1 paid an hourly-rate,
that they regularly worked more than forty hours a week, and that
they
were
paid
overtime .
plaintiffs' were not subject
3
9zd
Instead,
Nabors
argues
that
the FLSA'S overtime requirements
at
40
see Exhibits A-C and L to Motion for Certification , Diaz
Declaration , Campos Declaration , Puga-Reyna Declaration, and
Colmenares Declaration, Docket Entry Nos. 49-1 through 49-3, and
49-12 .
41
see Schelebo Declaration, Exhibit B to Defendants' Response ,
Docket Entry No . 59-2, %% 1-37 Exhibits E-H to Defendants'
Response, Objections & Answers to Defendants' Nabors Corporate
Services, Inc w
and Nabors Industries, Inc . First Set of
Interrogatories for Rodolfo Diaz, Rodrigo Campos, Abraham PugaReyna, and Ricardo Colmenares, Docket Entry Nos. 59-5 through 59-8,
respectively .
because
they
were
not
Nabors'
independent contractors .
employees
The court
and
were ,
instead,
not persuaded by this
argument because exemptions are merits-based defenses
FLSA
claims that courts in this district typically hold to be irrelevant
at this initial, notice stage of the case . See, e .c ., Drever, 2008
WL 5204149, at *2 (
rejecting defendant's argument that the possible
application
multiple
FLSA
exemptions
counseled
against
conditional certification ubecause exemptions are merits-based
defenses
to
an
FLSA
claim' that
'
ncannot
defeat
conditional
certificationv); Foraker v. Hichpoint Southwest, Services, L.P.,
Civil Action No. 4:06-cv-1856, 2006 WL 2585047, at *4
(
S.D.
Tex. Sept. 7, 2006) (
rejecting the defendant's argument that
conditional certification should be denied because plaintiffs were
supervisors and exempt under the executive exemption as an argument
that 'goes
'
the m erits of whether the emp loyees are exempt from
overtime pay and is not a persuasive basis to deny notice'
').
Because Nabors adm its
AMC
location
treating al1 rig welders working at
Conroe,
Texas,
as
exempt
independent
contractors, and because there is no evidence now before the court
showing that the day-to-day job duties
location
differ
substantially,
court
rig welders at that
concludes
that
potential class members are similarly situated in terms of 50th job
requirements and payment provisions .
before the court shows that there
Because the evidence now
reasonable basis for
crediting plaintiffs' assertion that other aggrieved individuals
exist and that other aggrieved individuals are similarly situated
to plaintiffs
provisions,
term s
b0th
requirements and payment
court concludes that plaintiffs have provided
sufficient evidence to satisfy the first stage
Lusardi
analysis, and that this matter should be conditionally certified as
a collective action under 29
5 216(
b).
The central issue
presented by the plaintiffs' Motion for Certification and Nabors'
opposition thereto is whether plaintiffs have demonstrated that
common policy or plan extends beyond the AMC location
a11
Texas
countries.
Nabors
multiple
locations
Conroe,
different
See Rosario v . Valentine Avenue Discount Store, Co .,
Inc., 828 F. Supp. 2d 508, 516 (
E.D. .
N Y.
The current record does
extend certification
provide
sufficient basis to
any locations beyond AMC'S Conroe , Texas
location . The only evidence
the record
that rig welders
AMC'S Conroe, Texas location routinely worked m ore than forty hours
per week without being paid overtime .
'
'FLSA violations at one
company's multiple locations generally
sufficient
support
company-wide
without more,
notice.'
'
Rueda
v . Tecon
Services, Inc ., Civil Action No . 4:1O-cv-4937, 2011 WL 2566072, at
(
S.D. Tex. June 28, 2011). See also Harper, 185 F.R.
D.
(
finding that the plaintiffs
failed
show that employees
working at locations other than the named p laintiffs' location were
similarly situated); Tucker,
not
F.supp .
suggest that ngeographic commonality
948 (
same).
That
necessary to
meet the Asimilarly situated' requirement for
FLSA collective
action ; instead the focus is on whether the employees were impacted
by a common policy .'
'
Action
Varaas v . Richardson Trident Cc w
Civil
4:09-cv-1674, 2010 WL 730155, at *6 (
S.D.TeX. Feb.
2010) (
collecting cases).
If there is
reasonable basis
conclude that the same policy applies to multiple locations of a
single company, certification is appropriate . See Blake v . Colonia
Savings, F . ., Civil Action No . 4 :04-cv-0944, 2004 WL 1925535, at
A
( D.
S. TeX. Aug.
2004) (
approving notice to loan officers
the defendant's Dallas office and those in remote locations based
on evidence that the company's policies extended to
The
present
record,
however,
contains
no
locations).
evidence
that
the
complained-of policies or practices at AMC'S Conroe, Texas location
are policies or practices that extended to any other location
operated by AMC or by any Nabors entity.
extent the
plaintiffs seek collective-action certification for locations other
than AMC'S Conroe, Texas, location, that request will be denied .
B.
Request for Expedited Discovery and Notice to Class Momners
Plaintiffs' proposed notice is attached as Exhibit I to their
Motion for Certification .4 Plaintiffs request that their counsel
z
be allowed to send the proposed notice to potential class members
by first class mail, and that the court fix a postmark deadline for
the return of consent form s of sixty days from the date the notices
W Docket Entry No . 49-9.
-
24-
are mai1ed .4
3
plaintiffs
that
request
that
information for
Corporation
notice may
defendants
be
tim ely
produce
rig welders who worked
and/or
Nabors
implemented,
verified
contact
App lied Machinery
Industriesz
parents,
three years.4
4
subsidiaries or
Nabors responds that
they should
be compelled
provide information regarding any individual who provided services
to defendants outside of the potential statutory period,
should
be
compelled
produce
unnecessary
they
personal
information , and they need more than a mere ten days to provide the
information on the putative class members,
excessive ;
and
consent form s must be filed with
plaintiffs' proposed notice
material aspects.
ninety days to opt-
defective
If the court conditionally certifies
court;
several
class,
Nabors urges the court to order the parties to confer and subm it a
proposed agreed notice .4
5
Plaintiffs' reply that
(
tlhe proposed form is substantially similar to a notice
agreed upon by Nabors' counsel in a case currently
pending before Judge Nancy Atlasr in which the
undersigned is the counsel for plaintiffs, Sester v .
Burrow Global Services, LLC, Civil Action No . 4 :15-cv03346. It is fair and balanced .
It is also fairly
understandable to a layman . Hence Plaintiffs' notice is
proper .4
6
HMotion for Certification , Docket Entry No .
4 . at 12-13.
4Id
O Defendants' Response, Docket Entry No .
4
6plaintiffs' Reply , Docket Entry No . 6l, p .
pp . 20-23.
Reauests for Information for Individuals Who Provided
Services Outside of the Potential Statutorv Period
Nabors objects to plaintiffs' request
information
potential class members who provided services to defendants at any
time during the last three years as too broad . Citing Quintanilla
v. A & R Demolition , Inc w Civil Action No . 4:O4-cv-1965, 2005 WL
2095104,
(
S.D. Tex. August
2005', Nabors argues that
/
' bqased on the statute of limitations,
'E
have recognized that
class certification is appropriately lim ited to workers employed by
the defendant up to three years before notice is approved by the
COkrt. e4
l
?
Nabors
correct
class
certification
appropriately limited to workers employed by defendants up to three
years before this court approves
notice.
Jolentino,
Supp . 2d at 654. An FLSA cause of action Ar ay be commenced within
'a
two years after the cause
action accrued
cause of action arising out
except
may be commenced
within three years after the cause of action accrued .'
'
5 255 (
a). nImportantlyr the A
limitations period is not tolled with
respect
other potential plaintiffs unless and until they opt
to the case.#' Id. (
'
quoting Quintanilla v. à & R Demolitina, Incw
Civil Action No . 4 :04-cv-1965, 2005 WL 2095104,
Aug.
*16
Tex .
2005)). nBased on the statute of limitations, courts have
recognized that class certification
appropriate ly limited
U Defendants' Response, Docket Entry No .
-
26-
workers employed by the defendant up
is approved by the court .'
'
Id .
three years before notice
Thus, the notice period must
commence three years prior to the court's approval of this notice .
Verified Personal Contact Information
Known Addresses) Within 90 Davs
(
Names and Last
Citing the proposed order attached to plaintiffs' Motion for
Certification, Nabors objects to plaintiffs' request for personal
contact information for potential class members.
Nabors argues :
Plaintiffs' Motion states that the order they are seeking
would require the production of 'verified contact
'
information
(
i.e., names and last known addressesl.'
'
Plaintiffs' proposed order, howeverr requests far more
invasive information than what is requested in the
Motion . The proposed order requests within ten (
10) days
of its entry, that Defendants produce ' 1) Full names;
A(
( Email addresses; ( Last known mailing addresses;
2)
3)
( Social Security numbers; ( A11 telephone numbers;
4)
5)
(6) Dates of employment; ( Location l of employment;
7)
s)
and ( Nature of employment. 8
8)
4
Nabors argues that plaintiffs' requests for personal inform ation
beyond names and last known addresses should be denied due
privacy concerns and because such information is not needed to send
notice
putative
class
members.
Nabors
also
argues
that
plaintiffs' demand for the personal information of putative class
members within ten
days is overly burdensome, and that they
should have at least thirty (
30) days to accomplish this task.
4 (d
8(
at
-
27-
Plaintiffs' requests
full names, email addresses, last
known mailing addresses, telephone numbers, and dates of employment
unduly burdensome
are
invasive, and are appropriate and
necessary to further the broad rem edial purposes of the FLSA
providing notice to b0th current and former employees . Other courts
routinely approve such requests when , as here, they are likely to
further
broad remedial purposes of the FLSA by facilitating
notice, and disapprove such requests only when defendant makes
showing that such measures are not likely to facilitate notice .
Here , Nabors has made no such showing .
Social security numbers,
however, are very personal and private , and plaintiffs have not
stated any specific reason for needing them to effect notice to the
putative class .
Other courts routinely deny requests
security numbers absent extenuating circum stances .
social
Accordingly ,
the court concludes that defendants shall provide to plaintiffs'
counsel contact
information
potential class members that
includes full names, email addresses, last known mailing addresses,
a11 known telephone numbers, and dates of employment, but does not
include social security numbers.
See, e .a ., Dvson
Petroleum Testers, Inc., 308 F.
R.D.
(
authorizing production
contact
v . Stuart
(
W.D. Tex. 2015)
information that
included
potential class members' email addresses and telephone numbers but
social security numbers); In re Wells Farco Wace and Hour
Emplovment Practices Litication ( . 111) C'
No
Wells Farao 111'
'), 2013
-
28-
WL 2180014,
(
S.D. Tex. May
2013) (
denying plaintiffs'
request for email addresses upon finding that uprovision of email
addresses
likely not facilitate notice
case'); id.
'
(
granting plaintiffs' request for social security numbers only
potential
plaintiffs
whose
notice
returned
as
undeliverable).
Sixtv Davs to Opt In Is Reasonable
Citing the proposed order attached to plaintiffs' Motion for
Certification, Nabors objects to plaintiffs' request for a ninety
day opt-in period .
Nabors argues :
Plaintiffs' Motion seeks a sixty (
60) day opt-in period
for class members to join this lawsuit after notice is
provided . Plaintiffs' order , on the other hand, requests
a ninety (
90) E
dayj opt-in period. Ninety (
90) days for
the opt-in period is extremely excessive and unnecessary .
If this matter is conditionally certified, Defendants
request that this Court order a sixty (
60) day opt-in
p eriod .49
Since plaintiff's m otion seeks a sixty-day opt-in period, and since
Nabors agrees that
sixty-day opt-in period is reasonable, the
opt-in period shall be sixty
days .
Written Consents Must Be Filed With the Court
Nabors argues that plaintiff's request that consent form s
provided by the putative plaintiffs be ndeemed filed as of their
49(d
g
at
-
29-
postmark date ,'
'
unreasonable and violates the p lain language
the FLSA .5 Asserting that plaintiffs have not cited any authority
O
supporting
this
request , Nabors
urges
the
court
Arelecj
A ' ;
Plaintiffs' request to deem the written consents as filed by the
postmark dates and instead recognize their filing only after such
action has been taken .'sl
'
The FLSA provides that M E
nlo employee shall be a party
plaintiff
any E
FLSA) action unless he gives his consent
writing to become such
court
party and such consent
which such action is brought .' 29
'
action under the FLSA commences
filed, if
filed in the
5 216(
b). An
the date when the complaint
(
the plaintiff) is specifically named as a party
plaintiff in the complaint and
written consent to become
party plaintiff is filed on such date
the court
which
action is brought.' 29 U.S. 5 256(
'
C.
a). nEllf such written consent
was not so filed or if E
the plaintiffrs) name did not so appear E,
the action commences) on the subsequent date on which such written
consent
filed in the court in which the action was commenced .'
'
29 U.S.C. 5 256(
b). See Donovan v. Universitv of Texas at El Paso,
F.2d 1201, 1208 (
5th Cir. 1981) (
recognizing that a plaintiff
must file written consent with the court to become an FLSA party
plaintiff; filing the complaint is not enough)
5OId . at 23 .
5lId
-
30-
collective
action, the lim itations period is tolled for the original party
plaintiffs on the date the complaint is brought, and for the later
op-in plaintiffs on the date their notices
consent are filed
with the court.' Clark v . Centene Co . of Texas, L .P., 104 F. Supp .
'
( .
W D. Tex. 2015) (
citing
U .S .C.
256(
a)- (
b)).
Plaintiffs have not cited any authority that would allow the court
deem consent forms provided by the putative plaintiffs
filed as
be
their postmark date as opposed to the date on which
they are actually filed with court .
Thus plaintiffs request that
consent forms provided by the putative plaintiffs be '
'deemed filed
as of their postmark date' will be denied .
'
Defective Notice
Nabors argue that
The notice should inform opt-ins that they may be
required to respond to written questionsr sit for
depositions and testify in court . The notice should also
in form potential opt-in plaintiffs that they may be
responsible for sharing in the liability for paym ent of
costs if
Defendants prevail
in
the
law suit .
Additionally, the notice should also inform potential
opt-ins that Plaintiffs' attorneys fees will reduce their
potential recovery . This information should be required
so opt-ins can be fully informed of the consequences of
their decision , as best as possible, and decide if it is
worth it to join the lawsuit.5
2
Citing Behnken v . Luminant Mininq Co ., LLC , 997 F . Supp . 2d
524 ( .
N D. Tex. 2014), Nabors argues that opt-ins should be
5
2:d
-
31-
informed that they may be required to pay costs if plaintiffs
receive an unfavorable decision .o
Neither AMC nor Nabors has
asserted counterclaim s, and Nabors has not provided any reason
believe that should defendants prevail, any costs assessed against
plaintiffs would be more than de minimus with respect
each
individual . In a sim ilar case, another court in this district held
that requiring an instruction that potential plaintiffs could be
liable for costs associated with the lawsuit nmay have an
terrorem effect that is disproportionate
the actual likelihood
that costs or counterclaim damages w ill occur
any significant
degree .' Baranas v . Acosta, Civil Action No . 4:11-cv-3862 ,
'
'
1952261, at
WL
(
S.D. Tex. May 30, 2012) (
citation omitted).
Moreover, courts in this district routinely approve notice forms
FLSA actions that do not include language regarding the class
members' potential liability for costs . See e .a ., Wells Farao 111,
2013 WL 2180014, at *8. Because Nabors has failed to identify any
reason for concern that potential plaintiffs may be required to pay
costs and expenses that are more than de minimus, and because
courts in this district routinely approve notices w ithout warning
potential plaintiffs about such costs and expenses, the court is
not persuaded that such a warning
531d
-
32-
appropriate
this case .
IV .
Conclusions and Order
reasons explained
5
111, above, plaintiffs'
requests (1) that defendants be ordered to produce social security
numbers
putative class members, and
that consent form s
provided by the putative plaintiffs be ndeemed filed as of their
postmark date' are DENIED . Accordingly, Plaintiffs' Partially
'
Opposed Motion
for
Class Certification
& Expedited
Discovery
(
Docket Entry No. 49) is GQAHYRD IN PART AHn DENIED IN PART, and
the court provisionally deems this action a collective action and
defines the conditionally approved collective class as follow s:
A11 current and former rig welders who were jointly
employed by Applied Machinery Corporation and by Nabors
Corporate Services, Incw and/or by Nabors Industries,
Inc . at Applied Machinery Corporation's Conroez Texas
location within the three-year period immediately
preceding entry of this Memorandum Opinion and Order,
i .e ., from June 24, 2012, to the present .
Within thirty days of the entry of this Mem orandum Opinion and
Order defendant shall provide plaintiffs with
list
of
employees fitting the description of the conditionally certified
class that includes each individual's full name, last known m ailing
address, email address ( known), a11 known telephone numbers, and
if
dates of employment .
Plaintiffs shall have thirty days from the
receipt of this information
potential class members.
m ail the proposed notice
the
The opt-in period shall be sixty days
from the date the notice is mailed .
SICHRD at Houston , Texas, on this 24th da
o
, 2016.
<
e'
SIM LAKE
UNITED STATES DISTRICT JUDGE
-
33-
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