Rooks v. Coastal Chemical Co., LLC
MEMORANDUM AND ORDER denying 13 Opposed MOTION to Certify Class (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
COASTAL CHEMICAL CO., LLC,
February 06, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-296
MEMORANDUM AND ORDER
Pending before the Court is Plaintiffs’ Motion for Conditional Class Certification and
Notice. (Doc. No. 13.) After considering the Motion, the responses thereto, and all applicable
law, the Court determines that the Motion should be denied.
Plaintiff Kurtis Rooks worked for Defendant Coastal Chemical Co., LLC as a land
technician from approximately March 2012 to June 2015. Compl. at 1. Plaintiff alleges that he
was improperly paid a base salary and bonus with no overtime compensation, in violation of the
Fair Labor Standards Act (“FLSA”). Id. at 2. On February 3, 2016, Plaintiff filed a Complaint
on behalf of himself and all others similarly situated.
On motions for collective action certification in FLSA cases, the Fifth Circuit has
affirmed district courts’ use of the lenient standard adopted by the United States District Court
for the District of New Jersey in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g.,
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–16 (5th Cir.1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The Lusardi approach includes two
steps: (1) the plaintiff’s motion for conditional certification, and (2) the defendant’s motion for
At the first stage, the Court must decide whether notice of the action should be given to
potential class members. Id. at 1213–14. The court's decision at this stage is usually based on the
pleadings and affidavits that have been submitted, and is made using a “fairly lenient standard,
[which] typically results in ‘conditional certification’ of a representative class.” Id. at 1214. A
plaintiff may proceed collectively only if the challenged conduct is a generally applicable rule,
policy, or practice. McKnight v. D.Houston, Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010)
(quoting England v. New Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005)).
Therefore, conditional certification should be denied when the action arises from circumstances
purely personal to the plaintiff. Id.
In order to obtain conditional certification, the plaintiff must make a “minimal showing”
that: (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist,
(2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the
claims and defenses asserted, and (3) those individuals want to opt in to the lawsuit. Aguirre v.
SBC Comms., Inc., No. H–05–3198, 2006 WL 964554, at *6 (S.D. Tex. April 11, 2006).
Conclusory allegations that other employees are similarly situated are insufficient to justify
conditional certification. Vargas v. HEB Grocery Co., L.P., No. SA-12-CV-116-XR, 2012 WL
4098996, at *4 (W.D. Tex. Sept. 17,2012).
To satisfy the third requirement, a plaintiff must show not only that similarly situated
persons exist, but also that they seek to join the lawsuit. Davis v. Mostyn Law Firm, P.C., No.
4:11-cv-2874, 2012 WL 163941, at *10 (S.D. Tex. Jan. 19, 2012). Reliance on the plaintiff's
“own allegations that the putative class members exist and together were the victims of a single
decision, policy, or plan is insufficient to meet [the] burden” of showing “that the additional
aggrieved persons exist and want to join the lawsuit.” Simmons v. T–Mobile USA, Inc., No. H–
06–1820, 2007 WL 210008, at *9 (S.D. Tex. Jan. 24, 2007). See also Morales v. Thang Hung
Corp., No. 4:08-2795, 2009 WL 2524601, at *3 (S.D. Tex. Aug. 14, 2009) (concluding that class
notice would not issue, in part because plaintiff failed to show that similarly situated persons
would actually seek to join the lawsuit); Detho v. Bilal, No. H-07-2160, 2008 WL 1730542, at
*5-6 (S.D. Tex. Apr. 10, 2008) (holding that plaintiff’s affidavit stating a belief that there are
other employees who may be interested was insufficient for conditional certification).
The second stage of the Lusardi approach is usually prompted by a defendant's motion
for decertification after some or all discovery has been completed. At that time, a court considers
additional evidence submitted by the parties in determining whether to decertify the class on the
ground that its members are not similarly situated. Id.
Plaintiff has not made a minimal showing that similarly situated individuals wish to join
the lawsuit. Plaintiff’s only evidence is his own declaration, in which he states that he “know[s]
that Coastal’s other similarly situated current and former land technicians would be interested to
learn about their rights and their opportunity to join this lawsuit.” (Doc. No. 16-1.) This evidence
is insufficient because a plaintiff may not rely on his own allegations to show that similarly
situated individuals seek to join the lawsuit. See Simmons, 2007 WL 210008, at *9. Even if
Plaintiff were entitled to rely on his own assertions, the declaration alleges only that similarly
situated individuals would be “interested to learn about their rights,” not that they seek to join the
lawsuit. Finally, even after over a year of litigation, Mr. Rooks remains the only plaintiff in the
case. As such, Plaintiff has failed to make the minimal showing required for conditional
For the reasons set forth above, Plaintiffs’ Motion for Conditional Class Certification and
Notice (Doc. No. 13) is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 6th day of February, 2017.
HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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