Alvarado v. WANG MA LLC
ORDER GRANTING 29 Motion to Amend Complaint. Signed by Judge David A. Ezra. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JESUS ALVARADO, on behalf of
himself and all those similarly situated, §
WANG MA LLC d/b/a
CHINA CITY BUFFET,
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST
Before the Court is a Motion for Leave to File First Amended
Complaint filed by Plaintiff Jesus Alvarado (“Plaintiff”). (Dkt. # 29.) Pursuant to
Local Rule CV-7(h), the Court finds this matter suitable for disposition without a
hearing. After reviewing the Motion, for the reasons that follow, the Court
GRANTS Plaintiff’s Motion for Leave to File First Amended Complaint. (Dkt.
Plaintiff commenced this action by filing his original complaint on
October 15, 2013. (Dkt. # 1.) The complaint alleges that Defendants violated the
Fair Labor Standards Act (“FLSA”) by failing to pay the applicable minimum
wage and overtime wages. (Id. ¶¶ 21, 28.) Plaintiff, who is the only named
plaintiff in that complaint, brought his claims as a collective action on behalf of
himself and all persons similarly situated. (Id. ¶ 33.) Pursuant to this Court’s
scheduling order, the deadline to file amended pleadings was August 4, 2014.
(Dkt. # 14.) On February 28, 2015, Plaintiff filed the instant Motion for Leave to
File First Amended Complaint, seeking leave to amend his complaint to add
Yu Sun and Aixing Gao, who are currently opt-in plaintiffs, as named plaintiffs in
this matter. (Id. ¶ 4.) Defendant Wang Ma LLC (“Defendant”) did not file a
response within the seven day time limit proscribed by Local Rule CV-7(e)(2), and
as such, the Court has the discretion to grant the motion as unopposed.
Under Federal Rule of Civil Procedure 16(b), a party must show good
cause to amend a pleading after the deadline set forth in the scheduling order.
Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010) (citing S&W Enters., L.L.C.
v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003)). To show
good cause, a plaintiff must demonstrate that, despite his diligence, the deadlines
could not reasonably have been met. S&W Enters., 315 F.3d at 536. Courts weigh
four factors in this analysis: “(1) the explanation for the failure to timely move for
leave to amend; (2) the importance of the amendment; (3) potential prejudice in
allowing the amendment; and (4) the availability of a continuance to cure such
prejudice.” Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.
2003). If a party can demonstrate good cause to extend the deadlines set forth in
the scheduling order, the Court then applies the more liberal standard under
Federal Rule of Procedure 15(a) to determine whether to grant leave to amend.
Sw. Bell Tel. Co., 346 F.3d at 546 (citing S&W Enters., 315 F.3d at 536).
In deciding whether to grant leave under Rule 15(a), district courts
consider the following five factors: (1) “undue delay,” (2) “bad faith or dilatory
motive on the part of the movant,” (3) “repeated failure to cure deficiencies by
amendments previously allowed,” (4) “undue prejudice to the opposing party by
virtue of the allowance of the amendment,” and (5) “futility of the amendment.”
Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
Plaintiff asks the Court for leave to amend his complaint to add
Yu Sun and Aixing Gao, currently opt-in plaintiffs, as named plaintiffs in this
matter. (Dkt. # 29 ¶ 4.) Plaintiff explains that he planned to move for conditional
certification, but that doing so became impossible when Defendant’s counsel
unexpectedly withdrew and Defendant refused to cooperate with discovery efforts.
(Id. ¶ 7.) Plaintiff claims that without an amendment, Sun and Gao “will not be
able to join in the final resolution of this case.” (Id. ¶ 6.) In other words, Plaintiff
appears to argue that either certification or an amendment is necessary to allow
Sun and Gao to receive compensation should Plaintiffs prevail in this case.
The Court notes, however, that Plaintiff is mistaken. Opt-in plaintiffs
and original parties are treated equally under the FLSA. See Granchelli v. P & A
Interests, Ltd., No. H-11-4514, 2013 WL 435942, at *1 n.1 (S.D. Tex. Feb. 4,
2013). Similarly-situated employees become plaintiffs in an FLSA collective
action, and hence may be bound or benefit from a judgment, when they consent in
writing. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008); see
also 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such 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.”). Put otherwise, once an opt-in
plaintiff files his consent to join, he has “the same status in relation to the claims of
the lawsuit as do the named plaintiffs.” Prickett v. DeKalb Cnty., 349 F.3d 1294,
1297 (11th Cir. 2003). The purpose of conditional certification is not to join
parties, but to determine whether the court should permit the plaintiff to send
notice to other potential class members. Granchelli, 2010 WL 435942 at *2 (citing
Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010)). As such, a motion
for conditional certification “is not required for an opt-in plaintiff to be considered
a party plaintiff.” Alfonso v. Straight Line Installations, LLC, No. 6:08-cv-1842Orl-35DAB, 2010 WL 519851, at *1 (M.D. Fla. Feb. 10, 2010).
Thus, the Court finds that an amendment is not absolutely necessary
as Plaintiff suggests. However, because Defendant has not objected, because
Defendants have been aware of Sun and Gao’s claims since they filed their
consents to join on May 20, 2014 (Dkt. # 15), and because the parties have
conducted discovery on Sun and Gao’s claims (Dkt. # 29 ¶ 6), the Court finds that
no prejudice will result from the amendment and that good cause exists to extend
the scheduling order deadline. Because none of the Rule 15(a) factors weigh
against the amendment, the Court GRANTS Plaintiff’s Motion.
For the reasons stated above, the Court hereby GRANTS Plaintiff’s
Motion for Leave to File First Amended Complaint. (Dkt. # 29.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, March 3, 2015.
David Alan Ezra
Senior United States Distict Judge
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