Botello et al v. COI Telecom, LLC et al

Filing 73

ORDER directing Time Warner Defendants to file an answer to the amended complaint by 10/15/10; Parties shall participate in a Rule 26(f) conference by 10/25/10; Defendants shall file a response to Motion to Certify Class and for Limited Discovery [47 ] by 10/25/10; 54 Motion to Stay is DENIED; 56 Motion to Dismiss is GRANTED IN PART AND DENIED IN PART; 57 Motion for Leave to File Excess Pages and for Leave to File Motion for Conditional Class Certification and Court-Authorized Notice 58 is GRANTED; Defendant shall file a response to the Motion for Conditional Class Certification 59 by 10/25/10; 62 Motion to Bifurcate is DENIED. Signed by Judge Xavier Rodriguez. (tm)

Botello et al v. COI Telecom, LLC et al

Doc. 73

In the United States District Court for the Western District of Texas
E R I C BOTELLO, ET AL. v. C O I TELECOM, LLC, ET AL. § § § § §

SA-10-CV-305-XR

ORDER

O n this day came on to be considered the following motions: Plaintiffs' M o t io n to Certify Class and for Limited Discovery (docket no. 47); Defendants' M o t io n to Stay or Abate (docket no. 54); Defendants' Motion to Dismiss P la in t iffs ' Amended Complaint Pursuant to Rule 12(B)(6) (docket no. 56); P la in t i f fs ' Motion for Leave to Exceed Page Limitation and for Leave to File M o t io n for Conditional Class Certification and Court-Authorized Notice (docket n o s . 57 and 58); Plaintiffs' Motion for Conditional Class Certification (docket no. 5 9 ); and Defendants' Motion to Bifurcate (docket no. 62). B ackgrou n d P la in t iffs filed their Complaint on April 20, 2010. In that Complaint they a lle g e that "Time Warner" contracted with "COI" to complete installations and p r o v id e technical service to Time Warner residential and business customers. Plaintiffs further allege that they were required to sign documents that c a t e g o r iz e d them as "independent contractors." They further allege that the true

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relationship was an employment relationship, and that they are current e m p lo y e e s (Field Service Technicians) or former FSTs of the Defendants. They a lle g e that they were improperly classified as "independent contractors." Plaintiffs allege that Defendants violated the Fair Labor Standards Act (FLSA) b y failing to pay overtime wages and that Defendants violated the Employee R e t ir e m e n t Income Security Act (ERISA) by denying them pension, health, d is a b ilit y and other benefits. They further bring claims of unjust enrichment, deceptive trade practices under the Texas DTPA, negligent misrepresentation, p r o m is s o r y estoppel and fraud. On July 26, 2010, Plaintiffs filed their First Amended Complaint, wherein in paragraphs 29 through 65 they allege that despite the independent contractor d e s ig n a t io n , the Defendants controlled the manner and means by which they p e r fo r m e d their job duties. In summary, Plaintiffs were retained by COI to work as FSTs. They s ig n e d agreements with COI, wherein they were characterized as independent c o n t r a c to r s . Various Time Warner Defendants contracted with COI to provide in s t a lla t io n services for Time Warner customers. Plaintiffs are alleging that t h e y were jointly employed by COI and the Time Warner Defendants. P la in t i f f s ' Motion to Certify Class a n d for Limited Discovery (docket no. 47) I n this motion, Plaintiffs request that the Court certify a class on their E R I S A and unjust enrichment claims pursuant to Fed. R. Civ. P. 23. They seek c e r t ific a t io n of a class defined as follows:

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All persons who: 1) entered or will enter into a written agreement w i t h COI Telecom in which such persons were referred to as " c o n t r a c t o r s ," "subcontractors" or "independent contractors"; 2) p e r fo r m e d installation and technical services for Time Warner c u s t o m e r s on a full time basis (meaning exclusive of time off for c o m m o n ly excused employment absences) within the class period; a n d 3) were eligible for ERISA plan benefits absent their m is c h a r a c t e r iz a t io n as independent contractors and defendants' fa ilu r e to compensate them from payroll funds and issue them an I R S form W-2 annually. P l a i n t iffs ask the Court to certify a class on their Unjust E n r ic h m e n t claim defined as follows: A ll persons who: 1) entered or will enter into a written agreement w it h COI Telecom in which such persons were referred to as " c o n t r a c t o r s ," "subcontractors" or "independent contractors"; and 2) p e r fo r m e d installation and technical services for Time Warner c u s t o m e r s on a full time basis (meaning exclusive of time off for c o m m o n ly excused employment absences) since 4/20/2008.

P la in t iffs argue that the Rule 23 elements are satisfied in this case. Namely, the class members are so numerous that joinder is impractical, q u e s t io n s of law and fact are common to the class, the individual plaintiffs' c la im s are typical of those of absent class members and that the named Plaintiffs a r e fair and adequate representatives. It is Ordered that the Defendants file a response to this motion no later t h a n October 25, 2010. Time Warner Defendants' Motion to Stay or Abate (docket no. 54) C it in g section 17.505 of the Texas DTPA, these Defendants argue that P la in t iffs failed to provide them with the requisite 60 day notice prior to filing t h e ir lawsuit. Accordingly, pursuant to the Texas statute they seek abatement. Plaintiffs respond that they provided the DTPA notice on August 10, 2010 and 3

accordingly the sixty-day period will expire effective October 12, 2010. In their r e s p o n s e (docket no. 60), Plaintiffs essentially concede that the DTPA claim s h o u ld be abated until such time, but that this case should move forward with r e g a r d to their FLSA claim and their request for class certification. I n light of the dismissal of the DTPA claims against the Time Warner D e fe n d a n t s as discussed below, this motion is DENIED as moot. Defendants' Motion to Dismiss P la i n t i ff 's Amended Complaint (docket no. 56) T he Time Warner Defendants have filed a motion to dismiss certain claims p u r s u a n t to Fed. R. Civ. P. 12(b)(6).1 Specifically, they argue: (1) Plaintiffs' E R I S A claim is speculative because they fail to identify any specific ERISA plan in which they were a participant; (2) Plaintiffs' ERISA claims should be d is m is s e d because Plaintiffs have failed to exhaust their administrative r e m e d ie s ; (3) Plaintiffs' state law claims are preempted by the FLSA; (4) P la i n t iffs ' unjust enrichment claim fails because the services at issue were g o v e r n e d by express contracts; (5) Plaintiffs' assertion (under any state law t h e o r y ) of entitlement to "retirement plan contributions" is preempted by ERISA;

If a complaint fails to state a claim upon which relief can be granted, a court is entitled to dismiss the complaint as a matter of law. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under 12(b)(6), all factual allegations from the complaint should be taken as true. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). Additionally, the facts are construed favorably to the plaintiff. Id. Courts may look only to the pleadings in determining whether a plaintiff has adequately stated a claim; consideration of information outside the pleadings converts the motion to one for summary judgment. Fed. R. Civ. P. 12(d). To survive a 12(b)(6) motion, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations must be sufficient to "raise a right to relief above the speculative level." Id. A well-pleaded complaint can survive a motion to dismiss even if actual proof of the facts alleged is "improbable." Id. at 556.

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(6) Plaintiffs' fraud claims are vague and conclusory; (7) Plaintiffs' claims under p r o m is s o r y estoppel fail to allege any promise imputable to the Time Warner D e fe n d a n t s ; (8) Plaintiffs' DTPA claims fail because the Plaintiffs have failed to a lle g e that they purchased anything from the Time Warner Defendants. The Court has reviewed the Plaintiffs' response (docket no. 63). The Court n o w analyzes each of the Defendants' arguments. 1. W it h regard to Defendants' argument that the Plaintiffs' ERISA

c la im is speculative because the amended complaint fails to identify any specific E R I S A plan in which they were a participant, the Court finds that the claim is n o t vague and should not be dismissed. Plaintiffs allege that the Time Warner D e fe n d a n t s serve as a sponsor of an ERISA plan (¶ 26), that Defendants have im p r o p e r ly classified FSTs as independent contractors (¶ 25), they should be c la s s ifie d as employees of the Defendants (¶68), and because of the improper c la s s ific a t io n they are being denied ERISA benefits (¶ 79). Plaintiffs allege that the Time Warner Defendants do actually classify some FSTs as their employees (¶ 68). It is abundantly clear that Plaintiffs are arguing that they should be e n tit le d to receive the same ERISA benefits as the Time Warner Defendants o ffe r to the FSTs they do characterize as employees (¶ 86). 2. D e fe n d a n t s argue that Plaintiffs' ERISA claims should be dismissed

b e c a u s e Plaintiffs have failed to exhaust their administrative remedies. Plaintiffs argue that they have made various requests to the Time Warner D e fe n d a n t s requesting plan documents and information, that the Defendants h a v e refused to provide the information, and that exhaustion is futile and they 5

should be excused from this requirement on that basis. The Court agrees with P la in t iffs . The Time Warner Defendants argue that the Plaintiffs are not (and w e r e not) their employees. Accordingly, they argue that these Plaintiffs are not e lig ib le to participate in whatever ERISA plans they offer to their employees. Requiring the Plaintiffs to fully exhaust under these circumstances is futile. See M u lle r v. American Management Ass'n Intern., 315 F. Supp.2d 1136, 1140 (D. K a n . 2003). Defendants' motion to dismiss on this ground is denied. 3. D e fe n d a n t s seek dismissal of Plaintiffs' state law claims as being

p r e e m p t e d by the FLSA. Defendants are not specific as to which state law c la im s they believe should be dismissed. The Court assumes that they are a r g u in g that Plaintiffs' unjust enrichment claim (Count II) should be dismissed. In Count II, Plaintiffs allege that Defendants have failed to "indemnify or r e im b u r s e " them "for the excess hours they have worked...." T h is Court adopts the reasoning set forth in Guerrero v. JPMorgan Chase & Co., 2010 WL 457144 (E.D. Tex. 2010). In that case, the Court stated, in part, the following: T h e Fifth Circuit has not issued a published opinion c o n c e r n in g whether the FLSA pre-empts state law claims-such as c o n t r a c t , quantum meruit and unjust enrichment claims-that are p r e m is e d on an alleged violation of the FLSA. In Anderson v. Sara L e e Corporation, 508 F.3d 181 (4th Cir. 2007), the Fourth Circuit c o n s id e r e d whether conflict pre-emption would displace state law c la im s for contract, negligence and fraud. The Court noted that the s t a t e law claims at issue required essentially the same proof as the F L S A claim and that the plaintiffs were invoking state law as a s o u r c e of remedy for alleged FLSA violations. Id. at 193. Further, t h e Court recognized that the FLSA does not explicitly authorize s t a t e s to create alternative remedies for FLSA violations. Id. The 6

Court stated that "in the FLSA Congress manifested a desire to e x c lu s iv e ly define the private remedies available to redress v io la t io n s of the statute's terms" and held that "Congress prescribed e x c lu s iv e remedies in the FLSA for violations of its mandates." Id. a t 194 (citing Kendall v. City of Chesapeake, 174 F.3d 437, 443 (5th C ir . 1999) and Roman v. Maietta Constr., Inc., 147 F.3d 71, 76 (1st C ir . 1998) (finding that a plaintiff cannot circumvent the exclusive r e m e d y for enforcement of rights created under the FLSA and p r e s c r ib e d by Congress by asserting equivalent state law claims in a d d it io n to the FLSA claim)). The Court held that the plaintiffs' F L S A -b a s e d contract, negligence and fraud claims were precluded b y conflict pre-emption under a theory of obstacle pre-emption. Id. I n other words, the Court found that the state law claims were an o b s t a c le to the accomplishment of the full purposes and objectives o f Congress in the FLSA.

T h e reasoning by the Fourth Circuit is applicable to this case. T h e present case is similar to Anderson in that the state law claims a r e duplicative of the FLSA claim that is asserted. The complaint d o e s not assert state law claims wholly aside from or independent o f the FLSA. Rather, Plaintiff is seeking relief under state law t h e o r ie s of recovery for Defendant's alleged violation of the FLSA. T h a t is, Plaintiff's state law claims are predicated on Defendant's a lle g e d failure to compensate him for hours worked in excess of 40 h o u r s ; a requirement imposed by the FLSA. The FLSA provides the e x c lu s iv e remedy for violation of its mandates and pre-empts P la in t iff's FLSA-based state law claims. Plaintiff's claims for q u a n t u m meruit, unjust enrichment and breach of contract should b e dismissed pursuant to Fed.R.Civ.P. 12(b)(6). G u e r r e r o v. JPMorgan Chase & Co., 2010 WL 457144 at *3-4. I n summary, a plaintiff could potentially bring an overtime claim under a state statute that mirrors the FLSA and such a claim may not be preempted. However, a plaintiff may not plead under a theory of unjust enrichment to avoid t h e statutory framework of the FLSA. Defendants' motion to dismiss Plaintiffs' u n j u s t enrichment claim as it relates to any claim of failure to pay minimum w a g e s or overtime under the FLSA is GRANTED. Defendants' motion to dismiss

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all other state law claims as preempted, however, is DENIED at this time. The D e fe n d a n t s may re-urge this part of their motion after discovery and briefing is c o m p le te d . 4. D e fe n d a n t s also seek dismissal of Plaintiffs' unjust enrichment claim

a r g u in g that because the services at issue were governed by express contracts, t h e y are precluded from bringing an unjust enrichment claim. A party may recover under the unjust enrichment theory when one person h a s obtained a benefit from another by fraud, duress, or the taking of an undue a d v a n t a g e . Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (T e x . 1992). When a valid, express contract, however, covers the subject matter o f the parties' dispute, there generally can be no recovery under a quasi-contract t h e o r y . Fortune Production Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); s e e also In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005) ("A p a r ty generally cannot recover under quantum meruit when there is a valid c o n t r a c t covering the services or materials furnished."). In their amended complaint, Plaintiffs argue that Defendants have failed t o indemnify or reimburse them for not only overtime hours, but expenses such a s insurance coverage, vehicle maintenance, fuel, uniforms, and tools. The P la in t iffs further allege that they were incorrectly characterized as independent c o n t r a c to r s . In summary, Plaintiffs are alleging that the agreement they signed w a s not a valid agreement because it violates the FLSA and ERISA by wrongly c h a r a c t e r iz in g the relationship as an independent contractor arrangement, r a t h e r than an employment relationship. Inasmuch as Defendants' argument 8

is contingent upon a valid agreement being in place, and Plaintiffs argue that t h e y were employees, Defendants' motion to dismiss this claim is DENIED. 5. D e fe n d a n t s argue that Plaintiffs' assertion (under any state law

t h e o r y ) of entitlement to "retirement plan contributions" is preempted by ERISA. Plaintiffs concede this point in footnote 8 of their Response as to their unjust e n r ic h m e n t claim. It appears that Plaintiffs have only specifically raised

retirem ent plan contributions in their unjust enrichment claim, however, ERISA p r e e m p t io n applies to all of Plaintiffs' state law theories to the extent they seek d a m a g e s premised upon ERISA plans. Defendants' motion to dismiss on this g r o u n d is GRANTED. 6. c o n c lu s o r y . D e fe n d a n t s argue that Plaintiffs' fraud claims are vague and In Paragraph 91 of their amended complaint, Plaintiffs allege:

" D e fe n d a n t s knowingly represented to Plaintiffs that they would be independent c o n t r a c to r s , would work 8-10 hours a day, have two days off a week, that they w o u ld be their own boss, and do want they wanted. Employees and

r e p r e s e n t a t iv e s from Defendants including, but not limited to, Wes McDonnell, A n t h o n y Garcia and Chris Allen, made these statements, knew they weren't t r u e , made them at the COI and Time Warner facilities, prior to Plaintiffs e n te r in g into any agreements with Defendants to be `independent contractors.' Plaintiffs relied upon these statements to their detriment." I n U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (5th Cir. 2009), the F ifth Circuit stated: "In cases of fraud, Rule 9(b) has long played that screening fu n c tio n , standing as a gatekeeper to discovery, a tool to weed out meritless 9

fraud claims sooner than later. We apply Rule 9(b) to fraud complaints with " b it e " and "without apology," but also aware that Rule 9(b) supplements but does n o t supplant Rule 8(a)'s notice pleading. Rule 9(b) does not `reflect a

s u b s c r i p t i o n to fact pleading' and requires only `simple, concise, and direct' a lle g a t io n s of the `circumstances constituting fraud,' which after Twombly must m a k e relief plausible, not merely conceivable, when taken as true." Id. at 1851 8 6 . The elements of a fraud claim in Texas are straightforward. See Aquaplex, I n c . v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) ("The elements o f fraud are: (1) that a material misrepresentation was made; (2) the r e p r e s e n t a t io n was false; (3) when the representation was made, the speaker k n e w it was false or made it recklessly without any knowledge of the truth and a s a positive assertion; (4) the speaker made the representation with the intent t h a t the other party should act upon it; (5) the party acted in reliance on the r e p r e s e n t a t io n ; and (6) the party thereby suffered injury." (quoting In re F ir s tM e r it Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)). Here, Plaintiffs have met their Rule 9(b) burden and alleged who made the a lle g e d false statements, and when and where the statements were made. Plaintiffs also allege that the speakers were employees or representatives of D e fe n d a n t s . Accordingly, Plaintiffs are alleging that these individuals were a c t in g on behalf of the Time Warner Defendants. Plaintiffs allege they were in ju r e d by incurring expenses they would not have been subjected to if they were p r o p e r ly classified as employees. Defendants' motion to dismiss is DENIED.

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The Time Warner Defendants appear to argue that these individuals were not a u t h o r iz e d to make any representations on their behalf. h o w e v e r , cannot defeat a motion to dismiss. 7. D e fe n d a n t s argue that Plaintiffs' claims under promissory estoppel That argument,

fa il to allege any promise imputable to the Time Warner Defendants and the c la im should be dismissed. For the reasons stated above, Defendants' motion to d is m is s is DENIED. 8. D e fe n d a n t s also seek dismissal of Plaintiffs' DTPA claims arguing

t h a t Plaintiffs have failed to allege that they purchased anything from the Time W a r n e r Defendants. In paragraph 88 of their amended complaint, Plaintiffs allege that the T im e Warner Defendants supplied COI with various items (meters, phones and p h o n e service) and COI in turn "forced" Plaintiffs to purchase the items. The P la in t iffs further allege that the Time Warner Defendants required Plaintiffs to a t t e n d "mandatory uncompensated training sessions, by Time Warner, on the g o o d s and services that Defendants required Plaintiffs to purchase from them." Plaintiffs allege that these actions violated the DTPA because Defendants r e p r e s e n t e d that their goods and services had characteristics they did not have a n d Defendants performed "unconscionable acts" against Plaintiffs. P la in t iffs ' pleadings are clear that they are alleging COI sold them the m e t e r s , phones and phone services. Accordingly, Plaintiffs are not consumers w h o purchased any good or service from the Time Warner Defendants. In a d d it io n , although not raised by the Defendants, the Court notes that the 11

Plaintiffs do not allege that the meters, phones or phone service were in any way d e fe c t iv e . Plaintiffs also do not allege what representations were made about t h e meters, phones or phone service and how these representations were in a c c u r a t e . Finally, Plaintiffs do not allege what was allegedly unconscionable b e h a v io r . Defendants' motion to dismiss on this issue is GRANTED, however, P la in t iffs may amend their complaint (if they can do so consistent with Fed. R. C iv . P. 11) in an attempt to cure the above deficiencies. I n light of the dismissal of Plaintiffs' DTPA claim, the Time Warner D e fe n d a n t s ' complaint about Plaintiffs' failure to comply with the statutory pren o tic e is moot. Plaintiffs' Motion for Leave to Exceed Page Limitation and for Leave t o File Motion for Conditional Class Certification and C o u r t-A u t h o r i z e d Notice (docket nos. 57 and 58)

I n this motion Plaintiffs merely seek leave to file a motion for c o n d itio n a l class certification in excess of any page limitations. The motion is G R A N T E D . This ruling merely grants Plaintiffs the ability to file their m o t io n for conditional class certification. Plaintiffs' Motion for Conditional Class Certification (docket no. 59) P la in t iffs have filed this Motion for Conditional Class Certification and fo r Notice of Putative Class Members requesting that this Court allow the s u it to proceed as a collective suit pursuant to the FLSA, and allow them to r e c e iv e the names, addresses, and telephone numbers of the potential class m e m b e r s of the past three years in order to efficiently distribute the

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suggested notice. T h is Court applies the two-step approach of Lusardi v. Lechner, 855 F .2 d 1062 (3d Cir. 1988), in regard to giving notice to putative class members. Bernal v. Vankar Enterps., Inc., No. SA-07-CA-695-XR, 2008 WL 791963, at * 3 (W.D. Tex. Mar.24, 2008); Neagley v. Atascosa County EMS, No. S A -0 4 -C A -8 9 3 -X R , 2005 WL 354085, at *3 (W.D. Tex. Jan.7, 2005). At the fir s t stage, the Court determines whether or not to send notice of the action to p o t e n t ia l class members. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5 t h Cir. 1995). To make this determination, the Court should look only to t h e pleadings and affidavits. Id. at 1214. The "decision to create an opt-in c la s s under § 126(b), like the decision on class certification under Rule 23, r e m a in s soundly within the discretion of the District Court." Wajcman v. H a r tm a n & Tyner, Inc., No. 07-61472-CIV, 2008 WL 203579, at * 1 (S.D. Fla. J a n .2 3 , 2008). If the conditional certification is granted, the case continues t h r o u g h discovery as a representative action, and after discovery is c o m p le t e d , the defendant typically files a motion for decertification. Mooney, 5 4 F.3 d at 1214. At the second stage, the Court determines whether the p u t a t iv e class members are similarly-situated, and if they are, then the r e p r e s e n t a t iv e action can continue. Id. If they are not similarly-situated, t h e n the class should be decertified, the opt-in plaintiffs dismissed, and the c la s s representatives should be allowed to proceed on their individual claims. Id .

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The Time Warner Defendants object to Plaintiffs' motion arguing: (1) t h e case against COI is stayed and so this motion has been prematurely filed; (2 ) because they filed a motion to dismiss and have not yet filed any answer t h e motion has been prematurely filed; and (3) a decision on class certification s h o u ld be made only after the Court has decided whether the Plaintiffs were im p r o p e r ly classified as an independent contractor by COI. If COI should h a v e classified the Plaintiffs as employees, then the Court must still decide w h e t h e r the Time Warner Defendants were the "joint employer" of the P la in t if f s . P la in t iffs argue that they have met the lenient and "modest factual s h o w in g " that is required. Plaintiffs have certainly met the "modest factual showing" with regards t o COI. The affidavits of the Plaintiffs declare that their work assignments w e r e controlled by COI and Time Warner, the Plaintiffs were not permitted to n e g o t ia t e any of the terms of service they would perform, the Plaintiffs were n o t permitted to perform any services other than those directed by Time W a r n e r , nor could the Plaintiffs negotiate any charges for their services. Plaintiffs therefore make a plausible argument that they were improperly c h a r a c t e r iz e d as independent contractors and should have been classified as e m p lo y e e s .2

See Cromwell v. Driftwood Elec. Contractors, Inc., 348 Fed. Appx. 57 (5th Cir. 2009) ("To determine if a worker qualifies as an employee under the FLSA, we focus on whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008). To aid in that inquiry, we consider five non-exhaustive factors: (1) the degree of control

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The question becomes more complicated with regard to the Time W a r n e r Defendants. They correctly argue that even if this Court later c o n c lu d e s that the Plaintiffs were employees of COI, that does not necessarily m e a n that the Time Warner Defendants were their "joint employer." 3 T h e Defendants are ORDERED to respond to this motion no later than O c t o b e r 25, 2010. Defendants' Motion to Bifurcate (docket no. 62) A s stated above, the Time Warner Defendants seek bifurcation of this c a s e and seek an adjudication on their "joint employer" status prior to any c la s s action certification. The motion is DENIED. The Court is unconvinced t h a t bifurcation will result in judicial or litigant resources being conserved.

exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker's opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship. Id. No single factor is determinative. Id."). Courts have considered several factors in determining whether a defendant entity qualifies as an "employer" within the meaning of the FLSA and no single factor is dispositive of an entity's "employer" status under the FLSA; rather, such status depends "upon the circumstances of the whole [employment] activity." Itzep v. Target Corp., 543 F. Supp.2d 646 (W.D. Tex. 2008)(citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947)). The Fifth Circuit has long recognized that when determining whether a defendant corporation is an "employer" or "joint employer" under the FLSA, the totality of the employment situation must be examined with particular regard to the following five questions: (1) Whether or not the employment takes place on the premises of the company?; (2) How much control does the company exert over the employees?; (3) Does the company have the power to fire, hire, or modify the employment conditions of the employees?; (4) Do the employees perform a 'specialty job' within the production line?; and (5) May the employee refuse to work for the company or work for others? Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669-70 (5th Cir. 1968); see also Itzep, 543 F.Supp.2d at 653. Because the determination of an employee's status for purposes of the FLSA tends to focus on the economic dependence and reality of the working relationship, the Fifth Circuit has also adopted the "economic reality" test which encompasses inquires into whether the purported employer: "(1) ha[d] the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'" Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted); see also Itzep, 543 F.Supp.2d at 653.
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Conclusion T h e Time Warner Defendants shall file an answer to the amended c o m p la in t no later than October 15, 2010. A ll parties shall participate in a Rule 26(f) conference no later than O c t o b e r 25,2010. After the Court rules on docket numbers 47 and 59, the p a r tie s shall confer and propose a scheduling order. W it h regard to Plaintiffs' Motion to Certify Class and for Limited D is c o v e r y (docket no. 47), no ruling is made. The Defendants shall file a r e s p o n s e to this motion no later than October 25,2010. T im e Warner Defendants' Motion to Stay or Abate (docket no. 54) is D E N I E D as moot. D e fe n d a n t s ' Motion to Dismiss Plaintiff's Amended Complaint (docket n o . 56) is GRANTED in part and DENIED in part as stated above. P la in t iffs ' Motion for Leave to Exceed Page Limitation and for Leave to F ile Motion for Conditional Class Certification and Court-Authorized Notice (d o c k e t nos. 57 and 58) is GRANTED. W it h regard to Plaintiffs' Motion for Conditional Class Certification (d o c k e t no. 59), no ruling is made. The Defendants shall file a response to t h is motion no later than October 25,2010. D e fe n d a n t s ' Motion to Bifurcate (docket no. 62) is DENIED. I t is so ORDERED. S I G N E D this 21st day of September, 2010.

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_________________________________ X A V I E R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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