Senegal v. Fairfield Industries Incorporated
MEMORANDUM OPINION granting 59 Opposed MOTION to Certify Class (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
March 27, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
DARNELL SENEGAL, individually
and on behalf of others
FAIRFIELD INDUSTRIES, INC.,
d/b/a FAIRFIELD NODAL,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2113
Pending before the court1 is Plaintiff’s Motion to Certify
Class (Doc. 59).
The court has considered the motion, Defendant’s
response (Doc. 63), Plaintiff’s reply (Doc. 65), all other relevant
filings, and the applicable law.
For the reasons set forth below,
the court GRANTS Plaintiff’s motion with the modifications to the
proposed class notice as discussed herein.
Fairfield Industries, Inc. (“Defendant”) under the Fair Labor
Standards Act2 (“FLSA”).3 Plaintiff alleged that Defendant violated
the FLSA by failing to pay Plaintiff and other similarly situated
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 46, Ord. Dated
Sept. 27, 2016.
See 29 U.S.C. §§ 201-219.
See Doc. 41, Pl.’s 1st Am. Compl.
employees for hours worked over forty in a week.4
Defendant offers geological survey services to the oil and gas
industry by using oceanographic seismic vessels to perform the
These vessels had a marine crew and a seismic crew.6
Plaintiff worked as part of the seismic crew, which consisted of
observers, the gun department, mechanics, navigators, and marine
The observers “were generally responsible for
hanging the ‘nodes’ on the lines and deploying and retrieving them”
as well as “remov[ing] the nodes after they were retrieved and
department’s role was to set up the air guns that were towed behind
the vessel on strings, to bring the air guns back on the vessel for
mechanics maintained the survey equipment, including the compressor
for the air guns and the conveyor used in the release and return of
the nodes.10 The navigators oversaw the gun mechanics and observers
See Doc. 59-1, Ex. A to Pl.’s Mot. to Certify, Decl. of Pl. pp. 1-2.
See Doc. 59-1, Ex. A to Pl.’s Mot. to Certify, Decl. of Pl. p. 2.
See id. p. 3.
Doc. 63-1, Ex. 1 to Def.’s Resp., Decl. of Comb p. 1.
in the collection of data.11
Plaintiff was employed by Defendant
from August 1994 to May 2016, and worked as a lineman, boat
operator, gun mechanic helper, and gun mechanic shift leader.12
Everyone on the seismic crew was employed by Defendant, and
the seismic crew had consistent duties on all of Defendant’s
When Plaintiff was hired, he was told that he would work
a twenty-eight day hitch, followed by twenty-eight days off.14
Plaintiff averred that he was paid on a day-rate basis for twelve
hours of work, and that Defendant told him that he would receive
overtime if he exceeded twelve hours in a day.15
scheduled to work twelve hours a day, seven days a week and was
additionally required to spent his time off participating in other
activities, such as training sessions or unloading food and other
supplies.16 Plaintiff averred that he often worked more than twelve
hours a day but did not receive compensation for this overtime.17
When Plaintiff was not on board the vessel, he attended licensing
classes, submitted to physical exams, and unloaded equipment.18
See id. p. 4.
See id. p. 4.
Plaintiff never recorded his hours while working for Defendant.19
Comb averred that the day-rate included weekly compensation
for 47.5 hours of overtime, and that employees had to receive
authorization to work more than 87.5 hours a week.20 Defendant paid
Defendant ceased all operation and ownership of
vessels in May 2016.22
Plaintiff filed his complaint on July 15, 2016, alleging
violations of the FLSA.23
Forty other putative class members have
opted into the lawsuit as of the date of this opinion.24
filed an amended complaint on September 26, 2016.25
November 14, 2016, seeking to certify the following class: “All
current and former seismic crewmembers employed by [Defendant] and
paid on a day-rate basis at any time during the last three years.”26
See Doc. 63-1, Ex. 1 to Def.’s Resp., Decl. of Comb p. 4.
See Doc. 1, Pl.’s Compl.
See Docs. 5-14, 16-22, 25-31, 34-36, 40, 47-51, 53-54, 56-57, 64, 66,
76, Consents to Join a Collective/Class Action.
See Doc. 41, Pl.’s 1st Am. Compl.
Doc. 59, Pl.’s Mot. to Certify Class p. 2.
The proposed class of seismic crewmembers includes: “observers
(i.e., the linesman (or line chiefs), junior observers, shift lead
observers, chief observers, and party managers); the gun department
(i.e., gun mechanic helpers, gun mechanic trainees, gun mechanics,
gun shift leaders, and gun mechanic chiefs); the mechanics (i.e.,
compressor mechanics and back deck mechanics); the navigators
navigators); and marine mammal observers.27
Plaintiff asks the
Defendant to provide contact information for all seismic crew
members who were employed by Defendant, its parent, subsidiaries,
or affiliates within the last three years.28
Defendant responded to Plaintiff’s motion to certify class on
December 12, 2016, challenging the class and Plaintiff’s form of
employees for hours worked in excess of defined maximum hours.
U.S.C. § 207(a).
It allows employees to bring an action against
their employers for violation of its hour and wage provisions. See
See id. p. 14.
See Doc. 63, Def.’s Resp. to Pl.’s Mot. to Certify Class (“Def.’s
29 U.S.C. §§ 215-216.
An employee may bring this action against
his employer on “behalf of himself . . . and other employees
No employee shall be a party plaintiff to any
such an 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.C. § 216(b). Courts have the authority
to implement the representative action process by facilitating
notice to potential plaintiffs, in other words, to persons alleged
to be “similarly situated” to the named plaintiff(s).
Roche, Inc. v. Sperling, 493 U.S. 165, 171-74 (1989).
In the Fifth Circuit, the determination of whether plaintiffs
are similarly situated is generally made by using one of two
analyses: (1) the two-step analysis described in Lusardi v. Xerox
Corp., 118 F.R.D. 351, 359 (D.N.J. 1987); or (2) the “spurious
class action” analysis described in Shushan v. Univ. of Colo., 132
F.R.D. 263 (D. Colo. 1990).
See Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1216 (5th Cir. 1995) (expressly declining to decide which
of the two analyses is appropriate).30
whether the putative class members’ claims are sufficiently similar
to merit sending notice of the action to possible members of the
Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d
Mooney was an action under the Age Discrimination in Employment Act
(“ADEA”), but it is informative here because the ADEA 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.
516, 519 (5th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14).
court makes this determination by using a fairly lenient standard,
requiring only “substantial allegations that the putative class
members were together the victims of a single decision, policy, or
Mooney, 54 F.3d at 1214 & n.8.
If the court determines
that the employees are similarly situated, then notice is sent and
new plaintiffs may “opt in” to the lawsuit.
519 (citing Mooney, 54 F.3d at 1214).
Acevedo, 600 F.3d at
Next, once discovery has
largely been completed and, thus, more information on the case made
available, the court makes a final determination on whether the
plaintiffs are similarly situated and whether they can proceed
together in a single action.
According to the Fifth Circuit, the Shushan approach, known as
the “spurious class action” analysis, is similar to the class
certification procedure used under Federal Rule of Civil Procedure
23 (“Rule 23”):
Shushan espouses the view that [29 U.S.C. § 216(b)
(“Section 216(b)”)] merely breathes new life into the socalled “spurious” class action procedure previously
eliminated from [Rule 23]. Building on this foundation,
the court determined that Congress did not intend to
create a completely separate class action structure for
the FLSA . . . context, but merely desired to limit the
availability of Rule 23 class action relief under . . .
[the FLSA]. In application, the court determined that
Congress intended the “similarly situated” inquiry to be
coextensive with Rule 23 class certification. In other
words, the court looks at “numerosity,” “commonality,”
“typicality” and “adequacy of representation” to
determine whether a class should be certified. Under
this methodology, the primary distinction between a . .
. [FLSA] representative action and a [Rule 23] class
action is that persons who do not elect to opt-in to the
. . . [FLSA] representative action are not bound by its
results. In contrast, Rule 23 class members become party
to the litigation through no action of their own, and are
bound by its results.
Mooney, 54 F.3d at 1214.
The Fifth Circuit has not ruled which method the courts should
use to determine whether plaintiffs are sufficiently similarly
situated to advance their claims together in a single action under
Acevedo, 600 F.3d at 518-19.
Although it has
stated that not all class action standards are applicable to
Section 216(b) actions, the court has explicitly left open the
question of whether the Lusardi approach, the Shushan approach, or
a third approach should be used in determining whether employees’
claims are sufficiently similar to support the maintenance of a
Id. (citing Mooney, 54 F.3d at 1216;
LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975)).
However, most courts in this district follow the Lusardi
approach in suits brought under Section 216(b).
Tolentino v. C & J Spec-Rent Servs., Inc., 716 F. Supp.2d 642, 646
(S.D. Tex. 2010) (collecting cases).
The Lusardi approach is
consistent with Fifth Circuit dicta stating that the two-step
approach is the typical manner in which these collective actions
Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2
(5th Cir. 2008).
The Fifth Circuit has also stated that “[t]here
is a fundamental, irreconcilable difference between the class
action described by Rule 23 and that provided for by [Section
216(b)],” in other words, the “opt out” procedure for class members
under Rule 23 as opposed to the “opt in” procedure under Section
LaChapelle, 513 F.2d at 288; see also Donovan v. Univ. of
Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“The FLSA
procedure, in effect, constitutes a congressionally developed
alternative to the [Rule 23] procedures.”). This court, therefore,
will analyze Plaintiff’s claims using the Lusardi method.
The present case is at the “notice stage” of the Lusardi
At this stage, the court’s decision is “made using a
fairly lenient standard;” a plaintiff need only make a minimum
showing to guide the court’s determination whether to issue notice
to potential class members.
Mooney, 54 F.3d at 1214.
In the absence of Fifth Circuit guidance on the appropriate
test to use at the notice stage of the Lusardi analysis, courts are
split on the appropriate elements to consider in determining
whether to grant conditional certification.
Some courts use three
elements, requiring the plaintiff to show that: (1) there is a
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
See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL
5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino,
716 F. Supp.2d at 653.
Other courts, however, have rejected the
third, non-statutory element.
See, e.g., Jones v. Cretic Energy
Servs., LLC, 149 F. Supp.3d 761, 768 (S.D. Tex. 2015); Dreyer v.
Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL
5204149, *3 (S.D. Tex. Dec. 11, 2008) (unpublished); Heckler v. DK
Funding, LLC, 502 F. Supp.2d 777, 780 (N.D. Ill. 2007).
This court is persuaded by the latter group of cases that have
rejected the third element, as it is not statutorily required. See
Jones, 149 F. Supp.3d at 762.
This reasoning is consistent with
the instruction from the Supreme Court that the FLSA be liberally
construed to carry out its purposes.
Id. (citing Tony & Susan
Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 296 (1985)).
Therefore, the court finds that it is enough for Plaintiff to
present evidence that there may be other aggrieved individuals who
should be noticed without requiring evidence that those individuals
actually want to join the lawsuit.
Plaintiff’s class certification and then will turn to Defendant’s
objections to Plaintiff’s proposed class notice.
certified and reminds the court that certification of a class is
The court agrees that while the burden for a
plaintiff is low, class certification not automatic. See Sandel v.
Fairfield Indus., Inc., No. H-13-1596, 2014 WL 1379902 (S.D. Tex.
certification, Plaintiff must show “substantial allegations that
the putative class members were together the victims of a single
decision, policy, or plan infected by discrimination.”
F.3d at 1214 & n. 8.
Plaintiff must provide evidence to establish
a reasonable belief that aggrieved individuals exist and that the
aggrieved individuals are similarly situated.
Cantu, 2009 WL
5195918, at *4.
After this lawsuit was filed, forty individuals filed opt-in
Defendant specifically challenges the opt-in marine crew
members, arguing that they should be dismissed because, as seamen,
they are exempt from the FLSA.
Defendant states that despite
Plaintiff’s agreement that the marine crew members were not proper
opt-ins in this case and would be dismissed, no motion to dismiss
has been filed.
Defendant also contends that some of the putative
class members are exempt under 29 U.S.C. § 213(f) because they
worked on foreign-flagged vessels in foreign territories.
seismic crew positions were exempt under 29 U.S.C. § 213(a)(1).
Exemption defenses “are merits-based defenses to FLSA claims
that courts in this district typically hold to be irrelevant at
this initial, notice stage of the case.”
Jones, 149 F. Supp.3d
768 (S.D. Tex. 2015) (providing examples of other cases supporting
this proposition); see also Turner v. Nine Energy Serv., No. H-153670, 2016 WL 6638849 (S.D. Tex. Oct. 4, 2016)(unpublished).
if an exemption defense may apply to a case, that is not enough to
prevent conditional certification of a class.
Dreyer, 2008 WL
5204149, at *3 (citing Foraker v. Highpoint Sw., Servs., LP, No. H06-1856, 2006 WL 2585047, at *4 & n. 16 (S.D. Tex. Sept. 7,
2006)(unpublished)); see also Albanil v. Coast 2 Coast, Inc., No.
2008)(unpublished)(“defendants’ assertion of an exemption, alone,
is an insufficient basis for denying conditional certification and
precipitated by a motion for ‘decertification’ by the defendant
usually filed after discovery is largely complete . . . [a]t this
stage, the court has much more information on which to base its
decision, and makes a factual determination on the similarly
Mooney, 54 F.3d at 1214.
analysis. Falcon v. Starbucks Corp., 580 F. Supp.2d 528, 534 (S.D.
Therefore, Defendant’s arguments that the putative class
members are not similarly situated because of the applicability of
certain merits-based exemption defenses are not proper to defeat
class certification. These merits-based defenses are more properly
raised in a later stage of the lawsuit.
Defendant’s argument that the marine crew members are exempt
from the FLSA and therefore are not properly part of this lawsuit
arguably falls within the merits-based exemption defense that may
only be considered after the conditional certification stage.
However, the court finds that the marine crew members are not
properly a part of this lawsuit, as Plaintiff has only asked the
court to certify a class of seismic crew members.
limitation, a number of the marine crew have filed consents to join
the class. Comb averred that the following opt-ins were members of
the marine crew, not the seismic crew during the relevant time
period for this case: Adamo Carey, William McIntyre, Clary Reed,
Phillip Thompson, Eugene Williams, Eric Johnson, Darrell Hoover,
John Harper, Randel Hansen, Dale Williams, Stephen Hawkins, Charles
Honaker, Cedric Braxton, and Arnel Vasquez.31
The court will only
certify a class for seismic crew members, so to the extent that
marine crew members have opted into this lawsuit, they are
dismissed as they are not part of the class that Plaintiff has
asked the court to certify.
See id. p. 4.
Pre- and Post- Shift Claims
Defendant challenges Plaintiff’s proposed class, arguing that
Plaintiff’s pre- and post-shift claims require an individualized
analysis making the putative class members not similarly situated.
The court agrees with Defendant that whether the putative
class members claims for pre- and post-shift work are compensable
must be analyzed under the Integrity Staffing Solutions, Inc. v.
Busk, ___ U.S. ___, 135 S. Ct. 513 (2014) framework.
WL 7709583, at *2.
However, the court does not find that this type
situated. In the thirteen declarations submitted by Plaintiff, the
putative class members aver that they all had to complete workrelated activities such as attending meetings and trainings and
helping load supplies onto the vessel outside of their normal work
In support of its motion, Defendant cites non-controlling
authority and argues that this type of analysis makes conditional
However, the court is unaware of any case
from this circuit supporting this argument, and in Sandel, the
court certified a similar class against Defendant, based on similar
claims of pre- and post-shift work.
Plaintiff may assert pre- and
post-shift claims on a class basis.
Appropriate Pay Policies
appropriate and the putative class members were compensated for
overtime, Plaintiff’s motion for class certification should be
When an employer has and enforces appropriate pay policies,
courts are reluctant to grant conditional certification.
v. Harris County, No. H-15-630, 2015 WL 6835408, at *5 (S.D. Tex.
Nov. 6, 2015)(unpublished)(citing Nieddu v. Lifetime Fitness, 977
F. Supp.2d 686, 703 (S.D. Tex. 2013)).
Defendant has provided
evidence that: (1) its day rate took into account that Plaintiff
and other opt-ins were compensated for 87.50 hours per week that
included 47.50 hours of overtime compensation at the overtime rate;
and (2) most of the opt-in plaintiffs signed an acknowledgment form
that explained the calculation of the day-rate plan and notified
them that they were to obtain permission if they worked over 87.50
hours in a workweek.
However, in the declarations submitted in support of this
motion, the opt-ins averred that they were not paid overtime and
Additionally, Plaintiff challenges Defendant’s assertion that its
day-rate policy was appropriate under the Department of Labor’s
Unlike in Lindsey, where the declarants had no
personal knowledge that others worked more than forty hours a week,
thirteen opt-ins in this action have submitted declarations stating
that they were subject to Defendant’s day-rate plan, and through
conversations with other coworkers, knew that others were subject
to the same plan, demonstrating a common policy or plan affecting
the putative class members.
Notably, Defendant does not challenge
the existence of a common pay policy or plan.
Job Positions and Responsibilities
Defendant argues that the putative class members are not
similarly situated because their jobs consisted of vastly different
Plaintiff argues that the opt-ins do not need to
have identical job duties for class certification and that they
were all subject to the common policy or plan of day-rate pay.
Job positions “need not need be identical” but must be similar
enough to arise under circumstances that apply equally to all
potential class members.
Lindsey, 2015 WL 6835408, at *6 (citing
Nieddu, 977 F. Supp.2d at 691); Tolentino, 716 F. Supp.2d at 647.
In support of his motion to certify class, Plaintiff submitted
thirteen declarations from opt-ins that discussed their past work
While the job titles held by the opt-ins may have
varied, all worked for Defendant as members of the seismic crew and
were subject to a common plan or policy.
The court finds that
Plaintiff has met his burden to show that there are aggrieved
individuals who are similarly situated.
Scope of the Class
Defendant takes issue with the scope of the class as defined
by Plaintiff in its motion to certify.
Defendant does not dispute
in its response that the seismic crew includes the positions as
defined by Plaintiff in his motion. However, Defendant argues that
the scope is broader than what Plaintiff sought in his amended
complaint which included only linemen and gun mechanics and broader
than the scope of the class in Sandel.
In Sandel, the plaintiff asked for the certification of a
class of seismic crewmembers that included compressor mechanics,
air gun mechanics (including gun mechanic helpers), back deck
mechanics, and line chiefs.
Sandel v. Fairfield Indus., Inc., No.
H-13-CV-1596, Doc. 9 n. 1 (S.D. Tex. Nov. 15, 2013).
acknowledges that the class as proposed is broader than the amended
However, in light of the numerous declarants who have
averred that as members of the seismic crew they were subject to a
single pay policy, as a matter of judicial economy, the court will
not require piecemeal litigation.
The class will encompass all of
those persons on a seismic crew who were subject to a day-rate
Defendant objects to Plaintiff’s proposed form of notice on
Defendant objects to a court-sponsored notice in this case,
arguing that it would not serve the purposes of the FLSA.
In his reply, Plaintiff states that he will work with Defendant’s
counsel to fix any disputes over the proposed notice. However, the court still
is inclined to rule on Defendant’s objections to the proposed notice.
Defendant states that notice in this case is unnecessary because of
the Sandel litigation and complains that Plaintiffs’ attorneys used
that lawsuit to create interest in this case.
Sandel, 2014 WL 1379902, at *4 (citing Mooney, 54
F.3d at 1214). The court finds that the broad remedial purposes of
Therefore, the court finds that it is proper to have
court-sponsored notice in this case.
Form and Contents
Defendant raises several objections to the form and contents
of Plaintiff’s proposed notice, including: (1) the scope of the
class; (2) the notice’s neutrality is not emphasized; (3) the lack
of specificity; (4) the failure to explain of Defendant’s bases for
disputing liability; (5) the absence of a description of the
potential class member’s rights; and (6) the absence of information
about the potential class member’s obligations.
Defendant’s objection that the scope of the class should be
limited to air gun mechanics and linemen is overruled, for the
reasons explained above.
Defendant also objects that the time
period should be limited from July 15, 2013, to December 18, 2015,
as Defendant ceased the day-rate payment plan on the latter date.
Plaintiff does not contest this argument, however as the class
includes only those persons who were paid on a day-rate basis, the
class should not include post-December 18, 2015 claims.
Defendant complains that the notice does not make it clear
authorization is emphasized too much.
In In re Wells Fargo Wage &
Hour Employment Practices Litigation (No. III), No. H-11-2266, 2013
WL 2180014, at *5 (S.D. Tex. May 17, 2013)(unpublished), the court
authorization of the notice was proper because it “merely state[d]
a fact” and its inclusion clarified the stage of the lawsuit.
Here, the court agrees, finding that the statement in the notice
that the court has approved the notice is merely stating a fact.
Additionally, the first section of the notice contains a clear
statement of neutrality that “the Court has not expressed any view
as to whether any current or former [employees of Defendant] are
owed unpaid overtime.”33
Finally, the court finds that it is
necessary to let the potential class members know the stage of the
lawsuit by including the statement that the notice has been
approved by the court.
Therefore, Defendant’s objection
Defendant next objects that the notice does not provide enough
background information to potential class members and that it is
too broad because it states that seismic workers can pursue any
The court finds that Plaintiff left out “employees of” in this
sentence and orders Plaintiff to add this in to make it clear to whom it is
claims for unpaid wages.
The court overrules this objection
because the notice makes clear that the lawsuit has been brought
for unpaid overtime, as evidenced by the statement that “[f]ormer
seismic workers have brought a lawsuit against [Defendant] for
unpaid overtime pay.”34
Defendant argues that the notice does not include a brief
explanation of its legal bases for disputing liability.
statement included in the notice, as to Defendant’s denial of
liability, states that Defendant “denies that it did anything wrong
and that any of its employees are entitled to additional pay.”35
In Tolentino and Yaklin v. W-H Energy Servs., Inc., No. C-07-422,
2008 WL 1989795, at *4 (S.D. Tex. May 2, 2008)(unpublished), the
court held that the notice should include a brief explanation of
the bases on which defendants were disputing liability.
finds that Defendant’s objection should be overruled.
Defendant complains that the proposed notice is not clear
about the potential class members’ rights and should include a
statement that the potential class members may choose their own
The court agrees, sustaining Defendant’s objection, as
the notice “must inform potential class Plaintiffs that they may
contact any attorney of their choosing to discuss the case.”
Doc. 59-14, Ex. N to Pl.’s Mot. to Certify Class, Proposed Notice p.
Tolentino, 716 F. Supp.2d at 655 (citing Yaklin, 2008 WL 1989795,
at *4; Moran v. Ceiling Fans Direct, Inc., No. H-06-0813, 2006 WL
2868939, at *2 (S.D. Tex. Oct. 5, 2006)(unpublished)).
Defendant also challenges the notice’s advisement about the
applicable statute of limitations, arguing that the language is too
In In re Wells Fargo, the court revised the language
regarding the statute of limitations, stating that it was “too
potential plaintiffs must opt in to this lawsuit if they desire[d]
to bring claims.”
2013 WL 2180014, at *6.
However, the language
regarding the statute of limitations in this case is not as
coercive, as the proposed notice merely explains that potential
class members are “under no obligation to join” but that “[e]very
day that passes potentially reduces any recovery you might receive
because of the law’s statute of limitations.”36
The court finds
that this language is not overly coercive and adequately informs
potential class members about their rights under the law.
Defendant’s final objection to the form and contents of the
notice is that the potential class members should be warned of
their obligations if they join their lawsuit.
takes issue with the statement that the opt-in plaintiffs “will not
have to pay the lawyers, win or lose,” stating that it “alludes to
a fee contract and counsel’s intent to seek attorney fees should
Defendant demands the inclusion of more detail
overrules this objection because Plaintiff does more than “allude”
to a fee contract.
Plaintiff states that there is a fee contract
that governs how the lawyers will be paid and that the lawyers will
pursue payment from Defendant if they prevail in the action.
However, the court agrees with Defendant’s other objection that it
is appropriate that potential class members be advised that they
may have to participate in written and oral discovery, or testify
at trial, and thereby orders Plaintiff to include this information
in the proposed notice.
Defendant challenges the notice process, arguing that the
signed opt-in forms should be sent directly to the court by the
opt-in plaintiffs and not to Plaintiff’s counsel. The court has no
plaintiff’s counsel collects the signed opt-in notices and files
them with the court by the ordered deadline.
Plaintiff requests that reminder notice be sent to potential
class members by mail and email thirty days after the first notice
Defendant objects that it is unnecessary in this case
because Plaintiff has not identified any reason for why a reminder
notice is necessary.
Doc. 63, Def.’s Resp. p. 29.
“District courts are split as to whether reminder notices to
potential class members are proper in FLSA actions” but “they have
denied requests for reminder notices . . . upon finding them
Jones, 149 F. Supp.3d at 776.
Here, Plaintiff has
failed to provide a reason in its motion or reply why he believes
that a reminder notice may be necessary in this case.
the court sustains Defendant’s objection and declines to authorize
a reminder notice at this time.
Based on the foregoing, the court GRANTS Plaintiff’s motion to
The court CERTIFIES this matter as a collective
action under 29 U.S.C. § 216(b) with respect to the following
All current and former seismic crewmembers employed
by [Defendant] and paid on a day-rate basis at any
time during the last three years.38
Defendant shall provide Plaintiff, within fourteen days of
including names, last known addresses, and email addresses, for all
seismic crew members who were employed by Defendant, its parent,
subsidiaries, or affiliates within the last three years.
As per Plaintiff’s definition, seismic crewmembers include:
“observers (i.e., the linesman (or line chiefs), junior observers, shift lead
observers, chief observers, and party managers); the gun department (i.e., gun
mechanic helpers, gun mechanic trainees, gun mechanics, gun shift leaders, and
gun mechanic chiefs); the mechanics (i.e., compressor mechanics and back deck
mechanics); the navigators (i.e., the navigators, shift lead navigators, and
chief navigators); and marine mammal observers.
Plaintiff shall have fourteen days from the receipt of this
information to mail the proposed notice, amended as discussed
above, to the potential class members.
The opt-in period shall be
sixty days from the date the notice is mailed.
SIGNED in Houston, Texas, this 27th day of March, 2017.
U.S. MAGISTRATE JUDGE
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