Hernandez v. Helix Energy Solutions Group, Inc.

Filing 29

MEMORANDUM AND ORDER entered GRANTING IN PART and DENYING IN PART 27 Opposed MOTION for Reconsideration : Hernandez's motion for reconsideration is denied insofar as he seeks an order for the prompt production of the email addresses of all putative class members. It is granted insofar as the court orders Helix to produce email addresses of putative class members whose first-class mail notices are returned as undeliverable, within 7 days after the return.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GERALD HERNANDEZ, individually
and on behalf of all others similarly situated,
Plaintiff,
v.
HELIX ENERGY SOLUTIONS
GROUP, INC.,
Defendant.

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January 08, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-1588

MEMORANDUM AND ORDER
Gerald Hernandez sued Helix Energy Solutions Group, Inc., alleging a failure to pay
overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Docket Entry
No. 1). The court granted Hernandez’s motion for conditional certification of “[a]ll current and
former electricians who worked for Helix during the last three years and who were paid on a dayrate basis.” (Docket Entry No. 26). The court also granted, in part, his motion for issuance of notice
and expedited discovery, denying the request for production of social security numbers, email
addresses, locations of employment, and nature of employment. (Id.). Hernandez moves for
reconsideration of the court’s denial of the production of employee email addresses, arguing that
email addresses are necessary for effective class notice. (Docket Entry No. 27). Helix responded.
(Docket Entry No. 28).
In his motion for expedited discovery, Hernandez asked the court to order expedited
discovery of contact information “for all electricians who worked for Helix during the last three
years.” (Docket Entry No. 24 at 15). Hernandez sought, “in both printed hardcopy and computer

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readable format,” the following information about individuals who worked as Helix HV electricians
in the last three years:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Full names;
Email address;
Last known mailing addresses;
Social Security numbers;
All known telephone numbers;
Dates of employment;
Location(s) of employment; and
Nature of employment.

(Docket Entry No. 24-8 at 2). Hernandez did not detail why all this information was necessary. The
court granted the motion, “but only as to the names, current or last-known mailing addresses,
telephone numbers, and dates of employment of HV electricians working for Helix in the last three
years.” The court concluded that “[t]he requests for social-security numbers, email addresses,
locations of employment, and nature of employment are overbroad and unsupported by the current
record.” (Id. (citing Rosario v. Valentine Ave. Disc. Store, Co., 828 F. Supp. 2d 508, 521–22
(E.D.N.Y. 2011); Guan Ming Lin v. Benihana Nat’l Corp., 275 F.R.D. 165, 179 (S.D.N.Y. 2011))).
Hernandez argues that it is necessary to send the class notice through email in addition to
first-class mail because the putative class members are offshore workers. (Docket Entry No. 27 at
2). He argues that prompt notification of the class is important to protect FLSA rights in light of the
statute of limitations; offshore workers cannot pick up their mail for long periods; and email is the
most effective way to communicate with offshore workers. (Id. at 3).
Helix opposes the motion, arguing that most of the cases on this issue conclude that notice
through first-class mail alone is sufficient. (Docket Entry 28 at 3). Helix asserts that Hernandez’s
original motion for conditional certification told the court that the putative class was made up of
offshore workers, meaning that “the offshore nature of the putative class members has already been
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considered by the [c]ourt.” (Id.). Helix contends that Hernandez has not supported his argument
with case law, nor has Hernandez addressed the argument that courts have not granted requests for
email notice because it is “less controlled method[].” (Id. at 4). However, Helix qualifies its
opposition to note that it is willing to give Hernandez the class members’ email addresses “in the
event that any notice is undeliverable,” explaining that other courts have used this approach. (Id.
at 5).
Based on the motion and response, this court’s previous order, and the relevant law, this
court grants in part and denies in part Hernandez’s motion for reconsideration. The reasons are
explained below.
I.

The Applicable Legal Standard
The Federal Rules of Civil Procedure do not specifically provide for motions for

reconsideration. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.
1997) (“[T]he Federal Rules of Civil Procedure do not recognize a general motion for
reconsideration.”). A motion that asks the court to change an order or judgment is generally
considered a motion to alter or amend under Rule 59(e). T-M Vacuum Products, Inc. v. TAISC, Inc.,
No. H-07-4108, 2008 WL 2785636, at *2 (S.D. Tex. July 16, 2008). A Rule 59(e) motion “calls into
question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.
2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)).
A Rule 59(e) motion “‘must clearly establish either a manifest error of law or fact or must
present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should,
have been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64
(5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). The court

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has “considerable discretion” in addressing a motion for reconsideration. Templey, 367 F.3d at 479.
Changing an order or judgment under Rule 59(e) is an “extraordinary remedy” that courts should
use sparingly. Id.; see also 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2810.1 at
124 (2d ed. 1995). The Rule 59(e) standard “favors denial of motions to alter or amend a judgment.”
S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A motion to
reconsider may not be used to relitigate matters or to raise arguments or present evidence that could
have been raised before the entry of the judgment or order. 11 WRIGHT & MILLER§ 2810.1 at 127–28
(footnotes omitted).
II.

Analysis
Hernandez is correct that some district courts in the Fifth Circuit have ordered the production

of email addresses to facilitate class notice under the FLSA. In Prejean v. O’Brien’s Response
Management, Inc., No. 12-1045, 2013 WL 5960674 (E.D. La. Nov. 6, 2013), the court ordered
production of email addresses for class notice to certain workers responding to the BP Deepwater
Horizon spil,l because “production of e-mail addresses is not significantly more invasive of class
members’ privacy than is production of their home addresses” and because the combination of firstclass mail and email notice “is both routine and reasonably calculated to accomplish the broad
remedial goals of the notice provision of the FLSA.” Id. at *10. Other courts in the Fifth Circuit
have similarly required the production of email addresses along with personal addresses for notice
under the FLSA. See, e.g., Senegal v. Fairfield Indus., Inc., No. H-16-2113, 2017 WL 1134153, at
*9 (S.D. Tex. Mar. 27, 2017); Diaz v. Applied Machinery Corp., No. H-15-1282, 2016 WL 3568087,
at *11 (S.D. Tex. Jun. 24, 2016); Walker v. Honghua Am., LLC, 870 F. Supp. 2d 462, 473 (S.D. Tex.
2012).

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Other cases have concluded that if the plaintiff does not clearly explain why email addresses
are necessary to give effective notice to putative class members, “names and addresses are sufficient
to ensure that notice is received.” Garcia v. TWC Admin., LLC, No. 14-CV-985, 2015 WL 1737932,
at *4 (W.D. Tex. Apr. 16, 2015); see, e.g., Altiep v. Food Safety Net Servs., Ltd., No.
3:14–CV–00642–K, 2014 WL 4081213, at *6 (N.D. Tex. Aug.18, 2014); Aguayo v. Bassam Odeh,
Inc., No. 3:13–CV–2951–B, 2014 WL 737314, at *6 (N.D. Tex. Feb.26, 2014). Those courts
typically permit plaintiffs to request the production of additional information “[f]or those putative
class members whose notices are returned as undeliverable.” Id. at *5. In Moreno v. National
Oilwell Varco, L.P., No. 4:17-cv-782, 2017 WL 5904909 (S.D. Tex. Nov. 29, 2017), for example,
the court order the production of email addresses, social security numbers, and telephone numbers
for class members because the plaintiff did not explain why notice through first-class mail would
be insufficient. Id. at *8.
Hernandez agrees that while many courts have concluded that names and addresses are
sufficient, (Docket Entry No. 27 at 3 (citing Rivenbark v. JPMorgan Chase & Co., No. 4-17-cv3786, 2018WL 6487985, at *3 n.1 (S.D. Tex. Dec. 10, 2018)), “the nature of the work performed
by the putative class” makes it “extremely difficult for these current and former employees to
receive regular mail.” (Id. at 2). Putative class members often work in remote locations without
access to mail delivered to their homes for long periods of time. (Id.). Hernandez argues that email
would more efficiently ensure that these workers receive notice. (Id.). Additionally, he asserts that
Helix agreed to provide email addresses of putative class members in another case involving
offshore workers, Hugee v. Helix Energy Solutions Group Inc., No. 17-cv-0199 (S.D. Tex. 28,
2018). (Id.). Hernandez argues that the putative class members in this case are similarly situated

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to the Hugee workers, signaling that the production of email addresses is appropriate here as well.
(Id. at 2–3).
Helix contends that Hernandez’s original motion informed the court that the putative class
members worked offshore, meaning that court has already considered “the offshore nature of the
putative class members.” (Docket Entry No. 28 at 3). Helix also disputes Hernandez’s reliance on
Hugee because “Helix expressly contested the production of email addresses in opposing conditional
certification” in that case. (Id. at 2–3). “The fact that Helix was able to reach an agreement with
[the Hugee] Plaintiffs’ counsel . . . does not mean that Helix believes the use of e-mail notice is
proper.” (Id. at 3).
Helix is correct that Hernandez had the opportunity to discuss the need for email notice in
his original motion. It is undisputed that the class is made up of individuals who frequently work
offshore. Because courts are divided as to the appropriateness of ordering the production of email
addresses and Hernandez could have raised his argument about the necessity of email notice in his
original motion, granting his motion for reconsideration and ordering the production of all the
putative class members’ email addresses is inappropriate. Under Rule 59(e), “denial of motions to
alter or amend a judgment” are favored, and Hernandez has not sufficiently shown why the court
should depart from that default. S. Constructors Grp., Inc., 2 F.3d at 611.
However, not before the court in its consideration of the original motion for class
certification and expedited discovery was Helix’s alternative proposal to provide email addresses
if first-class mail notice is returned as undeliverable. (Docket Entry No. 28 at 5). Many courts have
used this approach. See, e.g., Garcia v. TWC Admin., LLC, No. SA:14-CV-985-DAE, 2015 WL
1737932, at *5; Brown v. Body Soul Servs., Inc., No. 16-0824, 2017 WL 2198192, at *5 (W.D. La.

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May 2, 2017); Alford v. Freedom Oilfield Servs., LLC, No. SA-16-CA-00331-DAE, 2016 WL
8673858, at *7 (W.D. Tex. Aug. 17, 2016). For those putative class members whose notices are
returned as undeliverable, Helix must provide email addresses for those members within 7 of return.
III.

Conclusion
Hernandez’s motion for reconsideration is denied insofar as he seeks an order for the prompt

production of the email addresses of all putative class members. It is granted insofar as the court
orders Helix to produce email addresses of putative class members whose first-class mail notices
are returned as undeliverable, within 7 days after the return.
SIGNED on January 8, 2019, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge

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