Velasquez et al v. WCA Management Company, L.P.
OPINION AND ORDER. Plaintiffs' Emergency Motion to Compel 91 is GRANTED. Defendant's Motion for 28 U.S.C. § 1292 Certification of Issues for Appeal 95 is DENIED. Each party is to bear its own costs. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JOSE VELASQUEZ, et al,
WCA MANAGEMENT COMPANY, L.P.,
April 20, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-02329
OPINION AND ORDER
Pending before the Court in the above-referenced cause is Plaintiffs’ Emergency Motion
to Compel List of Potential Opt-Ins (“Emergency Motion to Compel”). Doc. 91. Defendant
responded by filing its Response in Opposition to Plaintiffs’ Emergency Motion to Compel List
of Potential Opt-Ins and Alternative Motion Requesting 28 U.S.C. § 1292(b) Certification. Doc.
95. After considering the parties’ filings, the relevant law, and for the reasons outlined below, the
Court grants Plaintiffs’ Emergency Motion to Compel and denies Defendant’s Alternative
Motion Requesting 28 U.S.C. § 1292(b) Certification.
This case arises from Plaintiffs’ Fair Labor Standard Act (“FLSA”) overtime claims. See
Docs. 1, 97. The question raised by the pending motion is the scope of the conditional class that
this Court certified in its August 23, 2015 Opinion and Order. Doc. 76.
Soon after this Court granted Plaintiffs’ Motion for Conditional Certification, Doc. 11,
Plaintiffs requested a list of Defendant’s current and former employees, Doc. 91 at ¶ 4.
According to Plaintiffs, they acquiesced to Defendant’s request for an extension of the deadline
to provide the list of potential opt-ins only to have Defendant subsequently “refuse to produce
the list.” Doc. 91 at ¶¶ 5–6.
Defendant’s non-compliance precipitated Plaintiffs’ Opposed Emergency Motion to
Compel List of Potential Opt-Ins (“First Motion to Compel”). Doc. 79. This Court referred that
motion to Magistrate Judge Stacy on September 13, 2016, and she granted it a week later. Docs.
82, 86. Pursuant to Judge Stacy’s Order, Defendant had seven days to “provide Plaintiffs with a
list, in usable electronic format, of Defendant’s current and former employees that fall within the
conditional class.” Id. at 1.
In response, Defendant produced a partial list of potential opt-ins on September 28, 2016.
Doc. 91 at ¶ 8. After Plaintiffs learned that this list only included the names of employees from
one of Defendant’s locations, it filed the instant Emergency Motion to Compel. Id. ¶ 9. Plaintiffs
argue that the certification covers all of Defendant’s employees nationwide and seek a list of the
nearly 1,000 employees that exist and are members of that conditional class. Id. ¶ 12. Defendant
disputes the breadth of the certification, arguing that the class this Court actually certified only
encompasses residential drivers and helpers who were employed at Defendant’s Highway 6
location. Doc. 95.
II. Plaintiffs’ Emergency Motion to Compel
Defendant is correct to note that this Court explicitly declined to conditionally certify the
“very broad” proposed class contained in Plaintiffs’ original and amended complaints. See Docs.
76 at 3 n.5, 95 at 5. That proposed class called for certification of:
All persons who, at any time during the three (3) years immediately preceding the
filing of this lawsuit, worked at any business that was owned, operated, and/or
acquired by Defendant, who were not paid overtime at a rate of one and one-half
times their regular rate for hours worked in excess of forty (40) per week.
Docs. 1 at ¶ 34, 63-1 at ¶ 58. Instead, the Court certified the class as described in Plaintiffs’
Motion for Class Certification, which was substantially more limited: “All individuals, who at
any point, during the past three years prior to the filing of this lawsuit, worked for Defendant as
drivers or driver’s helpers and who did not receive overtime pay.” Doc. 76 at 3.
To the extent that Plaintiffs’ motion seeks to compel a list of all potential opt-ins that fall
within the class described in their complaints rather than the one described in their Motion for
Class Certification, it is denied. The Court was clear that the certified class was limited to
driver’s and driver’s helpers who did not receive overtime pay at any point in the past three years
prior to the filing of the lawsuit. Id. Plaintiffs’ attempt to ensnare “all persons” who “worked at
any business that was owned, operated, and/or acquired by Defendant” is far too broad because it
ignores the FLSA’s requirement that the class members must be similarly situated and is not
supported by the record. However, because the limited class approved for certification by this
Court does not clearly delineate any geographic or employee-classification limitations—the main
points of contention between the parties now—the Court will address the parameters of
Plaintiffs’ class in full at this juncture.
“[G]eographic commonality is not necessary to meet the ‘similarly situated’ requirement
for a FLSA collective action.” Vargas v. Richardson Trident Co., CIV.A. H-09-1674, 2010 WL
730155, at *10 (S.D. Tex. Feb. 22, 2010) (citing Sedtal v. Genuine Parts Co., Civ. A. No. 1:08–
CV–413–TH, 2009 WL 2216593, at *5 (E.D. Tex. July 23, 2009); Falcon v. Starbucks Corp.,
580 F. Supp. 2d 528, 539–40 (S.D. Tex. 2008)). Nevertheless, “FLSA violations at one of a
company’s multiple locations generally are not, without more, sufficient to support companywide notice.” Rueda v. Tecon Services, Inc., CIV.A. H-10-4937, 2011 WL 2566072, at *4 (S.D.
Tex. June 28, 2011) (collecting cases). Rather, the focus is on whether “a common policy, plan,
or practice demonstrates a similar factual setting for purposes of showing workers are ‘similarly
situated.’” Vargas, 2010 WL 730155, at *9–10 (citing Falcon, 580 F. Supp. 2d at 534–35;
Sedtal, 2009 WL 2216593, at *5).
Here, the record indicates that Defendant’s job classifications are company-wide. Doc.
64-5 at 9. There is also no indication from the allegations and affidavits that the improper pay
practices were limited to a specific type of driver or helper or to a single WCA location. See
Docs. 11-1–2, 29, 35/39, 36, 42. Indeed, the affidavits state that the drivers and helpers worked
on both commercial and residential routes during their tenure with the company and make no
mention of a specific location. See id.
Plaintiffs allege that all drivers and helpers within these parameters were promised a flat
daily rate for completing their regular collection routes and Defendant then manipulated payroll
records to make it appear that Plaintiffs were being paid overtime. Doc. 15 at 2. The only
evidence proffered by Defendant to counter Plaintiff’s non-location-specific allegations is the
declaration of Jennifer Woodrow, WCA’s Payroll Department Administrator, who states that
only two locations employed the payroll system that Plaintiffs complain of. See Doc. 95-2 at ¶ 5.
The Court concludes this is insufficient to overcome Plaintiffs’ showing at the first step of
Lusardi. See Jones v. Cretic Energy Servs., LLC, 149 F. Supp. 3d 761, 775 (S.D. Tex. 2015).
(“Because the evidence now before the court shows that there is a reasonable basis for crediting
plaintiff’s assertion that other aggrieved individuals exist and that the other aggrieved individuals
are similarly situated to plaintiff in terms of both job requirements and payment provisions, the
court concludes that plaintiff has provided sufficient evidence to satisfy the first stage of the
Lusardi analysis . . . .”).
However, because the proposed opt-in notice does explicitly state that individuals are
eligible to join if they “were employed by WCA Management Company, L.P.,” Doc. 11-1 at 1,
the Court limits the conditional class to two types of employees: drivers and helpers—of both the
commercial and residential variety—who were employed by WCA Management Company, L.P.
at any of that entity’s locations within the three years immediately preceding the filing of this
lawsuit. If, after discovery is largely complete, Defendant determines that the claimants are not
similarly situated they may then seek to decertify the class under the second step of Lusardi. See
Blake v. Colonia Sav., F.A., CIV.A. H-04-0944, 2004 WL 1925535, at *2 (S.D. Tex. Aug. 16,
2004) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995), overruled on
other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Accordingly, the Court
grants Plaintiffs’ Emergency Motion to Compel to the extent that Plaintiffs seek a list of
potential opt-ins that complies with the class described herein.
III. Defendant’s Motion Requesting 28 U.S.C. § 1292 Certification
In the alternative to denying Plaintiffs’ motion, Defendant asks this Court to make its
class-certification order immediately appealable under 28 U.S.C. § 1292. Doc. 95 at 10–12.
Defendant argues that “insofar as it intended to conditionally certify a nationwide class or to
include commercial drivers within the intended class,” this Court made a manifest error of law.
Id. at 10. More specifically, Defendant contends that there is “substantial ground for difference
of opinion” on the applicability of the Lusardi or Shusan approach to FLSA class certification
and “an immediate appeal would materially advance the ultimate termination of this litigation.”
Id. at 12.
The Court disagrees. It is well settled in this district—and this Court—that the “two-step
ad hoc approach” in Lusardi is the preferred method for the similarly-situated analysis rather
than Rule 23 requirements under Shushan. Williams v. Grayco Cable Servs., Inc., 4:15-CV-2893,
2016 WL 2962913, at *4 (S.D. Tex. May 17, 2016) (collecting cases); see also Romero v. J&F
Analysts Inc., 4:15-CV-00790, 2016 WL 612594, at *2 (S.D. Tex. Feb. 16, 2016) (Harmon, J.)
(citations omitted) (“[M]ost courts, including those in this district, use the Lusardi approach.”).
Although the Fifth Circuit expressly declined to determine which method is more appropriate in
Mooney, 54 F.3d at 1216, it has since acknowledged the inapplicability of Rule 23 to a § 216(b)
action in at least one context, holding that the interlocutory appeal provisions of Rule 23(f) do
not apply in a § 216(b) action because a “216(b) FLSA action is not a [R]ule 23 class action,”
Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 932 (5th Cir. 2005).
Nor is the Court convinced that an immediate appeal would expedite this litigation.
Indeed, it appears that the opposite is the case. Just as it is well known that Lusardi is the
preferred approach in this district, it is also well known that Lusardi entails a two-step analysis;
Admittedly, the first step is lenient, but defendants have every opportunity to challenge
certification at the second stage. Romero, 2016 WL 612594, at *3. Accordingly, Defendant has
an opportunity to file a motion for decertification that may grant it the relief it seeks at a later
date. Moreover, even assuming that on immediate appeal Defendant could achieve an unlikely
Fifth Circuit directive that Shushan should apply, on remand this Court would then be required to
approach the certification question for a second time under that framework. Accordingly, appeal
of the Court’s conditional certification at the first stage of Lusardi is likely to only serve to
lengthen litigation unnecessarily. See Kelly v. Healthcare Servs. Grp., Inc., 2:13-CV-00441-JRG,
2014 WL 3612681, at *6 (E.D. Tex. July 22, 2014) (“An immediate appeal, however, will delay
the proceeding for at least several months, causing this litigation to possibly become more
‘protracted and expensive.’” (citations omitted)). Consequently, the Court denies Defendant’s
IV. Plaintiffs’ Request for Fees and Costs
Finally, Plaintiffs ask this Court to grant Plaintiffs recovery of their attorney’s fees and
costs in preparing and presenting their Emergency Motion to Compel. Doc. 91 at 5.
Federal Rule of Civil Procedure 37 provides that if a motion to compel is granted, “the
court must, after giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees” unless “(i) the
movant filed the motion before attempting in good faith to obtain the disclosure or discovery
without court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.”
Here, Defendant stymied Plaintiffs’ efforts to obtain a list of potential opt-ins on two
occasions, necessitating two motions to compel. See Docs. 79, 91. Standing alone, these actions
would lead the Court to conclude that Defendant is obliged to pay Plaintiffs’ costs. However,
because the Court did not clearly outline the limitations of Plaintiffs’ proposed class in its earlier
Opinion and Order, Doc. 76, it is understandable that the parties would come to loggerheads over
the scope of the list that Defendant was required to provide to Plaintiffs. Accordingly, this Court
cannot say that Defendant’s nondisclosure was not substantially justified. Plaintiffs’ request is,
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Emergency Motion to Compel, Doc. 91, is GRANTED. It is
ORDERED that Defendant’s Motion for 28 U.S.C. § 1292 Certification of Issues for
Appeal, Doc. 95, is DENIED. Finally, it is
ORDERED that each party is to bear its own costs.
SIGNED at Houston, Texas, this 20th day of April, 2017.
UNITED STATES DISTRICT JUDGE
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