Harlow v. Legend Energy Services, LLC et al

Filing 29

OPINION AND ORDER denying 23 Motion for Conditional Certification; denying 24 Motion for Approval and Distribution of Notice and for Disclosure of Contact Information.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
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VS.
§
§
LEGEND ENERGY SERVICES, LLC, TREY §
INGRAM, MATTHEW GOODSON, AND
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JOSH PRUETT, EACH INDIVIDUALLY
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AND AS OFFICERS OF LEGEND ENERGY §
SERVICES, LLC,
§
§
Defendants.
§

October 27, 2017
David J. Bradley, Clerk

JARED HARLOW,

CIVIL ACTION NO. 4:16-CV-02324

OPINION AND ORDER
Before the Court in the above referenced, putative collective action, grounded in the Fair
Labor Standards Act, are Plaintiff‟s Motion for Conditional Certification, Doc. 23, and Plaintiff‟s
Motion for Approval and Distribution of Notice and for Disclosure of Contact Information, Doc.
24. Having considered these Motions, Defendant‟s Response, Doc. 26, and Plaintiff‟s Reply,
Doc. 27, the Court hereby DENIES Plaintiff‟s Motions for Conditional Certification and Notice.
I.

Background
Plaintiff Jared Harlow filed this suit against Defendants Legend Energy Services, LLC

(“Legend”), and Trey Ingram, Matthew Goodson, and Josh Pruett, each individually and as
officers of Legend, on behalf of himself and others similarly situated to recover overtime pay and
other damages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Mr.
Harlow asserts that he and others at Legend were misclassified as “exempt” employees under the
FLSA. Therefore, Mr. Harlow contends, he and others received no overtime compensation

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despite being required to work over forty hours per week. Pursuant to 29 U.S.C. § 216(b), Mr.
Harlow seeks to conditionally certify the following class:
Each individual employed as a salaried Oilfield Worker for Defendant at any time
within the three years preceding the filing of Plaintiff‟s Original Complaint,
excluding any such person who has already participated in a claim against
Defendant as an opt-in or named party in a wage lawsuit.
II.

Applicable Law
Section 216(b) of the FLSA permits an employee to bring an action “for and [on] behalf

of himself . . . and other employees similarly situated.” 29 U.S.C. 216(b). To certify a collective
action under the FLSA, two requirements must be satisfied. “First, the named representative and
the putative members of the prospective FLSA class must be similarly situated. Second, the
pending action must have a general effect.” England v. New Century Fin. Corp., 370 F.Supp. 2d
504, 507 (M.D. La. 2005). Class treatment is not appropriate where the action arises from
circumstances that are “purely personal to the plaintiff, and not from any generally applicable
rule or policy.” Id.
The Fifth Circuit has noted the two different tests that courts apply to determine if the
putative class members are “similarly situated.” Mooney v. Armaco Srvcs. Co., 54 F.3d at 1213–
14 (5th Cir. 1995). Like most district courts, this Court has generally adopted the two-stage
approach articulated in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), consisting of (i) a
notice stage, followed by (ii) a decertification stage. See Sandoz v. Cingular Wireless LLC, 553
F.3d 913, 916 n.2 (5th Cir. 2008) (finding that “collective actions typically proceed in two
stages”).

Under the Lusardi approach, in the notice stage, the district court first makes a

preliminary determination of whether potential plaintiffs are similarly situated to the named
plaintiff. Mooney, 54 F.3d at 1213–14. If they are, then the court conditionally certifies the
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action and authorizes notice to potential plaintiffs to opt in, and the suit “proceeds as a
representative action throughout discovery.” Id. at 1214. Generally, after the close of discovery,
the defendant initiates the second stage by filing a motion for “decertification.” Id. At this stage,
the Court makes a factual determination from discovery evidence of whether the plaintiffs are
“similarly situated.” Id. If the court determines from discovery evidence that the plaintiffs are in
fact similarly situated, then the case proceeds as a representative action. Id. If the court finds
that the plaintiffs are not similarly situated, then the class is decertified, the “opt-in” plaintiffs are
dismissed without prejudice, and the original plaintiffs proceed to trial on their individual
claims. Id. at 1213–14.
At the notice stage of the Lusardi analysis, plaintiffs bear the burden to establish that they
are similarly situated to other employees in the proposed class. England, 370 F.Supp.2d at 507.
Courts determine whether the burden has been met using a “fairly lenient standard,” requiring
only “substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan infected by discrimination.”

Mooney, 54 F.3d at 1214, n.8 (citing

Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988). At this stage, however,
a plaintiff must make at least a minimal showing that: “(1) there is a reasonable basis for
crediting the assertion 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.” McKnight v. D. Houston, Inc., 756 F. Supp.
2d 794, 801 (S.D. Tex. 2010) (citations omitted). A court will customarily make a decision
“based only on the pleadings and any affidavits which have been submitted.” Mooney, 54 F.3d
at 1213–14.

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III.

Analysis
At the notice stage, the plaintiff bears the burden of making a minimal showing that other

aggrieved individuals wish to opt in to the lawsuit. McKnight v. D. Houston, Inc., 756 F. Supp.
2d at 801. While the burden is low at this stage, here it has not been met by Plaintiff. “A
plaintiff must do more than show the mere existence of other similarly situated persons, because
there is no guarantee that those persons will actually seek to join the lawsuit. Affidavits from
potential class members affirming their intention to join the suit are ideal for an analysis of
whether the putative class members were together the victims of a single decision, policy, or
plan.” Id. at 805 (internal quotations and citations omitted). This requirement exists because
“[o]thers‟ interest in joining the litigation is relevant to deciding whether or not to put a
defendant employer to the expense and effort of notice to a conditionally certified class of
claimants in a collective action.” Simmons v. T-Mobile USA, Inc., No. CIV A H-06-1820, 2007
WL 210008, at *9 (S.D. Tex. Jan. 24, 2007). Furthermore, “courts ... have a responsibility to
avoid the „stirring up‟ of litigation through unwarranted solicitation.” Valcho v. Dallas Cty.
Hosp. Dist., 574 F. Supp. 2d 618, 622 (N.D. Tex. 2008) (quoting D’Anna v. M/A-Com, Inc., 903
F. Supp. 889, 894 (D. Md. 1995)).
Mr. Harlow has not included any affidavits from other potential class members, nor does
he allege that he is aware of any specific individuals who are interested in joining the lawsuit.
Mr. Harlow only makes a bare statement that he “believe[s] that there would be others that
would want to join this lawsuit if notice were issued to them and they were made aware of the
suit.” Doc. 23-1 at 4. This is not sufficient to meet this prong of the test and thus conditional
class certification is not appropriate. Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL
1509570, at *8 (W.D. Tex. Mar. 31, 2015) (“In addition to requiring the existence of similarly
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situated individuals, most courts require that a plaintiff present some evidence that those
individuals are likely to opt-in to the lawsuit.”); Behnken v. Luminant Min. Co., LLC, 997 F.
Supp. 2d 511, 522 (N.D. Tex. 2014) (“[B]efore granting court-facilitated notice, the court should
satisfy itself that there are other similarly-situated employees. . . who would desire to opt-in to
the lawsuit.”) (quoting Valcho, 574 F. Supp. 2d at 622); Simmons, 2007 WL 210008, at *9
(denying certification where plaintiff did not present any admissible evidence that other
aggrieved employees were interested in participating in plaintiff‟s suit); see also Parker v.
Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D. Minn. 2007) (“Simply put, a plaintiff
must do more than show the mere existence of other similarly situated persons, because there is
no guarantee that those persons will actually seek to join the lawsuit.”); Dybach v. State of Fla.
Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991) (“[T]he district court should satisfy itself
that there are other employees of the department-employer who desire to „opt-in.‟”). Since
Plaintiff has not made a minimal showing that other aggrieved individuals wish to opt in to the
lawsuit, his Motion for Conditional Certification is denied.
Because Plaintiff‟s Motion for Conditional Certification is denied, Plaintiff‟s related
Motion for Approval and Distribution of Notice and For Disclosure of Contact Information, Doc.
24, is also denied.
IV.

Conclusion
For the foregoing reasons it is hereby
ORDERED that Plaintiff‟s Motion for Conditional Certification, Doc. 23, is DENIED.

It is further
ORDERED that Plaintiff‟s Motion for Approval and Distribution of Notice and For
Disclosure of Contact Information, Doc. 24, is DENIED.
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SIGNED at Houston, Texas, this 26th day of October, 2017.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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