Gomez v. Rockwater Energy Solutions, Inc.
MEMORANDUM OPINION AND ORDER DENYING 13 MOTION to Certify Class. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
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United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
RENE GOMEZ, individually and
on behalf of others similarly situated,
ROCKWATER ENERGY SOLUTIONS, INC.,
ROCKWATER MID-CON, LLC,
February 15, 2017
David J. Bradley, Clerk
CIVIL ACTION H-16-2035
MEMORANDUM OPINION & ORDER
Pending before the court is plaintiff Rene Gomez’s motion for conditional certification. Dkt.
13. Having considered the motion, response, and the applicable law, the court is of the opinion that
the motion should be DENIED.
Defendants Rockwater Energy Solutions, Inc. and Rockwater Mid-Con, LLC (collectively,
“Defendants”) provide oil and gas services. Dkt. 13. Defendants hired Gomez as a well tester and
he began working for Defendants from April 2011 until July 2014. Dkt. 13, Ex. 1 at 1 (Gomez
Dec.). Gomez’s job duties included:
waiting during fracturing operations in case it was necessary to flow back the well
and checking well head pressures after the fracking operation was completed;
adjusting the flow back chokes to maintain a certain rate of flow back fluids after
fracking operations; maintaining flow rates during the drill out process for plugs in
the well and check to verify that the plug catcher would not get obstructed;
monitoring and verifing [sic] the flow from the well until there was enough gas to run
production equipment after plugs were drilled out; assisting in rigging of sand
separators brought to locations by Rockwater in the flowback process; opening the
valves to production equipment and adjusting the manual choke for flow rate after
there was enough gas to run production equipment; monitoring the separating
equipment, tanks and monitor compressors, if on location; and assisting in rigging
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up and rigging down equipment on occassion [sic]. Other well testers had the same
or similar job duties.
Gomez worked for Defendants in Texas and Oklahoma. Id. He alleges that during his time
with Defendants, he worked in excess of forty hours per week and was misclassified as exempt from
receiving overtime compensation. Dkts. 11, 13. Gomez claims that he submitted invoices to
Rockwater Mid-Con. Id. He also claims that Defendants misclassified him as an independent
contractor. Id. On July 11, 2016, Gomez filed suit against Rockwater Energy Solutions, Inc. to
recover overtime wages under the Fair Labor and Standards Act (“FLSA”) and later amended the
complaint to name Rockwater Mid-Con, LLC as an additional defendant. 29 U.S.C. § 201;
Dkts. 1, 11. Gomez filed the lawsuit both individually and on behalf of other similarly situated
persons. Id. On December 29, 2016, Gomez filed the pending motion for conditional certification
of a collective action under the FLSA. Dkt. 13. He seeks conditional certification of a collective
action defined as:
All current and former employees of Defendants Rockwater Energy Solutions, Inc.,
Rockwater Mid-Con, LLC and/or predecessor companies of said entities, that held
positions as well testers, or held similar job positions that included similar job duties,
from July 11, 2013, through the present.
Dkt. 13 at 9. On January 19, 2017, Defendants filed a response in opposition to conditional
certification, and in the alternative, to limit the proposed notice to well workers who operated during
the same time and in the same geographic location as Gomez. Dkt. 15.
II. LEGAL STANDARD
Section 207(a) of the FLSA prohibits an employer from requiring nonexempt employees to
work in excess of forty hours in a given workweek unless the employees are compensated for the
excess hours at a rate of at least one and one-half times their regular rate. 29 U.S.C. § 207 (2012).
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Section 216(b) provides employees with a cause of action against employers who violate § 207. Id.
§ 216(b). Further, § 216(b) permits employees to bring collective actions on behalf of “themselves
and other employees similarly situated.” Id.
Before a case may proceed as a collective action,
however, the plaintiff must make an initial showing that the case is appropriate for collective action
Courts employ two different tests to determine whether to certify a collective action under
the FLSA: the spurious class action Shushan approach or the two-step Lusardi approach. Walker
v. Honghua Am., LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex. 2012) (Ellison, J.). See generally
Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990); Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987). The Fifth Circuit has declined to decide which test is preferable. Roussell
v. Brinker Int’l, Inc., 441 F. App’x 222, 226 (5th Cir. 2011); Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1216 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S.
90, 123 S. Ct. 2148 (2003). District courts within the Fifth Circuit, including this court, have
consistently applied the Lusardi test. See Johnson v. Big Lots Stores, Inc., No. 04-CV-3201, 2007
WL 5200224, at *3 (E.D. La. Aug. 21, 2007) (“Since Mooney district courts in the Fifth Circuit have
uniformly used [the Lusardi approach] to determine whether a collective [action] should be certified
under the FLSA.”); see also Abdur-Rahim v. Amerom, Inc., No. 13-CV-2105, 2013 WL 6078955,
at *2 (S.D. Tex. Nov. 19, 2013) (Miller, J.) (noting that this court has adopted the Lusardi test). The
court finds no reason to deviate from this precedent and will therefore apply the Lusardi test here.
The Lusardi test proceeds in two stages: (1) the “notice” stage and (2) the “decertification”
stage. Moore v. Special Distribution Servs. Inc., No. 06-CV-3946, 2007 WL 2318478, at *2 (S.D.
Tex. Aug. 8, 2007) (Harmon, J.). At the notice stage, the court determines whether to conditionally
certify a collective action and notify potential class members of the opportunity to opt in to the
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lawsuit. Walker, 870 F. Supp. 2d at 465. The plaintiff is required to make a minimal showing that
“(1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist, (2) that
those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims
and defenses asserted, and (3) that those individuals want to opt in to the lawsuit.” Aguirre v. SBC
Commc’ns, Inc., No. 05-CV-3198, 2006 WL 964554, at *6 (S.D. Tex. Apr. 11, 2006) (Rosenthal,
J.). At the notice stage, the parties typically present only affidavits and have conducted no discovery.
McKnight v. D. Hous., Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010) (Rosenthal, J.). However,
in some cases, such as this case, the parties have taken some discovery. Id. In deciding whether to
issue notice to potential class members, the court applies a lenient standard which typically results
in conditional certification. See Walker, 870 F. Supp. 2d at 465 (noting that collective actions are
generally favored under the FLSA). However, conditional certification is not automatic. Ali v.
Sugarland Petroleum, No. 09-CV-0170, 2009 WL 5173508, at *5 (S.D. Tex. Dec. 22, 2009)
(Ellison, J.). “A factual basis for the allegations is needed to satisfy the first step.” Perez v.
Guardian Equity Mgmt., LLC, No. 10-CV-0196, 2011 WL 2672431, at *4 (S.D. Tex. July 7, 2011)
(Rosenthal, J.); see also Hall v. Burk, No. 01-CV-2487, 2002 WL 413901, at *3 (N.D. Tex. Mar. 11,
2002) (“Unsupported assertions of widespread violations are not sufficient to meet Plaintiff’s
burden.”). If the court conditionally certifies the class and issues notice, the case proceeds as a
collective action during discovery. Walker, 870 F. Supp. 2d at 466.
The decertification stage begins when the defendant moves to decertify the conditionallycertified class, usually after discovery is largely complete. Mooney, 54 F.3d at 1214. At this stage,
the court reviews the information obtained during discovery and makes a factual determination
regarding whether the members of the conditionally-certified class are truly similarly situated. Id.
The plaintiff’s burden is more stringent at the decertification stage than at the lenient notice stage.
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McKnight, 756 F. Supp. 2d at 802. If the claimants are similarly situated, the case proceeds to trial
as a collective action. Mooney, 54 F.3d at 1214. If the claimants are not similarly situated, the court
decertifies the collective action and dismisses the opt-in plaintiffs without prejudice. Id. The
original plaintiffs then proceed to trial on their individual claims. Id.
Although the parties in this case have engaged in some written discovery, discovery does not
close until April 15, 2017. Dkts. 8, 9. Therefore, this case is not sufficiently advanced to warrant
a decertification-stage analysis. Neither party has argued that the heightened, decertification-stage
analysis should apply. Accordingly, the court will apply the Lusardi notice stage inquiry.
At the notice stage Plaintiffs must make a minimal showing that “(1) there is a reasonable
basis for crediting the assertions that aggrieved individuals exist, (2) that those aggrieved individuals
are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted, and
(3) that those individuals want to opt in to the lawsuit.” Aguirre, 2006 WL 964554, at *6; see also
Ashcraft v. Core Labs., LP, No. CV H-16-823, 2016 WL 3258369, at *1 (S.D. Tex. June 14, 2016)
The court is not persuaded that Gomez has satisfied the last prong that there are individuals
who want to opt in to the suit. Gomez alleges that there are at least fifteen well testers working for
Defendants in Texas and Oklahoma who performed similar duties and were subject to the same
compensation scheme. Dkt. 13, Ex. 1 (Gomez Dec.). He alleges that all of these well testers were
non-exempt employees under the FLSA, requiring the Defendants to pay overtime compensation for
any hours worked in excess of forty per week. Id.
In support of his motion for conditional certification, Gomez relies solely on his own
declaration. Dkt. 13, Ex. 1 (Gomez Dec.). Defendants argue that Gomez’s declaration fails to
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establish that the putative class members were subject to a similar practice or policy at all of
Defendants’ locations; to which no other declarations were submitted to substantiate his allegations.
Dkt. 15 at 11.
The court is unpersuaded by Gomez’s conclusory statement that there are other aggrieved
individuals who want to opt in to the suit. See Simmons v. T-Mobile USA, Inc., No. 06-CV-1820,
2007 WL 210008, at *9 (S.D. Tex. Jan. 24, 2007) (Atlas, J.) (requiring only that “a few similarly
situated individuals seek to join the lawsuit”) (emphasis added). In another case, this court granted
conditional certification after the plaintiff claimed the existence of fifteen named plaintiffs and at
least three unnamed plaintiffs.
Plaintiffs have also provided at least a minimal basis for their assertions that other
[workers] would wish to join the lawsuit if they knew of it; while plaintiffs’
affidavits do contain some “boilerplate” language, they specifically name [workers]
who were known by the declarants to have worked overtime without being paid at
an overtime rate.
Albanil v. Coast 2 Coast, Inc., No. CIV.A. H-08-486, 2008 WL 4937565, at *6 (S.D. Tex. Nov. 17,
Unlike in Albanil, Gomez merely states that he knows of other well testers, but does not
identify any by name or indicate whether they would be interested in joining a suit:
On information and belief, Plaintiff Rene Gomez is aware of at least fifteen other
well testers employed by Defendants who were labeled as independent contractors,
misclassified as to employment status and were not paid overtime compensation.
Exhibit A at ¶ 9. Additionally, Defendants misclassified similar employees with the
same policy and failed to pay them overtime in Oklahoma and Texas. Exhibit A at
¶ 10. Thus, similarly situated employees exist that may wish to join this action - if
they receive notice. Plaintiff therefore request permission to issue a notice . . .
Dkt. 13 at 9. At the notice stage, evidence need not be admissible at trial, but there should be at least
“some evidence.” Albanil, 2008 WL 4937565, at *3; see, e.g., Lee v. Metrocare Servs., 980 F. Supp.
2d 754, 759–61 (N.D. Tex. 2013) (“Plaintiffs need not present evidence in a form admissible at trial
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at the notice stage.”); Nguyen v. Versacom, LLC, No. 3:13-CV-4689-D, 2015 WL 1400564, at *3
(N.D. Tex. Mar. 27, 2015) (“[M]any courts . . . have held that affidavits or declarations offered in
support of motions for conditional certification need not be based on evidence that would be
admissible at trial.”). In his declaration, Gomez does not state, or offer any evidence that anyone else
wants to opt in to this lawsuit. Therefore, his declaration alone does not satisfy the required
“minimal showing” that others are interested in joining the lawsuit. Because Gomez has failed to
satisfy the third prong, it is unnecessary for the court to decide whether he has satisfied the first and
second prongs. Accordingly, the court cannot conditionally certify the class based on the record.
For the foregoing reasons, Gomez’s motion to conditionally certify a collective action and
send notice to the putative class (Dkt. 13) is DENIED.
Signed at Houston, Texas on February 15, 2017.
Gray H. Miller
United States District Judge
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