Markos George v. GO Frac, LLC., et al
ORDER DENYING without prejudice to refiling as premature 10 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
GO FRAC, LLC, RICHARD CRAWFORD, §
and G.F. CRAWFORD,
Civil Action No. SA-15-CV-943-XR
On this date, the Court considered Defendant Richard Crawford’s Motion for Summary
Judgment (docket no. 10), Plaintiff Markos George’s Response (docket no. 13), and Crawford’s
Reply (docket no. 16).
After careful consideration, the Court will DENY the motion as
premature without prejudice to refiling at a later date.
Plaintiff Markos George was employed as an operator for Defendant GO FRAC, LLC
(“GO FRAC”) from May 2014 through October 2014 and March 2015 through June 2015.
Docket no. 2 at 2. He alleges that despite working in excess of forty hours each week he was
employed by the company, he was never paid the overtime rate of 1.5 times his regular pay rate
as is required by the Fair Labor Standards Act (“FLSA”). Id. at 6. He maintains that he was
improperly classified as exempt from overtime pay. Id. at 7.
As a result, George filed a collective action on behalf of himself and all other operators
employed by GO FRAC on October 30, 2015. See id. The suit names GO FRAC, G.F.
Crawford, and Richard Crawford as Defendants. Id. Defendant Richard Crawford is CEO of
GO FRAC and a member of its Board of Directors. Crawford Decl. at 1.
On December 16, 2015, Crawford filed his Motion for Summary Judgment. Docket no.
10. George filed his Response on December 17, 2015 (docket no. 13) and Crawford filed his
subsequent Reply on December 23, 2015 (docket no. 16). Crawford alleges in his motion that he
is not an “employer” for the purposes of the FLSA and thus may not be held personally liable by
George. Docket no. 13 at 7. It appears Defendants’ counsel chose to file this motion in lieu of
an answer—Crawford has not yet filed an Answer or Rule 12 motion in response to George’s
Complaint and the deadline for doing so was December 16, 2015. See docket no. 6. The Court
has not yet entered a scheduling order in this case and has not yet conducted a Rule 16 pretrial
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the evidence shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–52 (1986). Rule 56 “mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails . . . to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir.
2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The court must draw reasonable inferences and construe evidence in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Although the evidence is viewed in the light most favorable to the nonmoving party, a
nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary
judgment. Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004). Mere
allegations of a factual dispute between the parties will not defeat an otherwise proper motion for
summary judgment. Anderson, 477 U.S. at 256.
In his motion, Crawford requests that the Court grant summary judgment in his favor on
all counts because he does not qualify as an “employer” for the purposes of the FLSA. Docket
no. 10 at 7. He argues that he has no control over any of GO FRAC’s employees other than the
company’s COO and CFO and has no control over the company’s wage policies. Id. at 9. As a
result, Crawford contends that as a matter of law, he does not meet any factor of the economic
reality test—the balancing test used by courts to determine whether an individual is an
“employer” who may be held individually liable under the FLSA. Id. at 12–15.
In response, George argues that summary judgment is premature at this time and seeks
relief under Rule 56(d). 1 Docket no. 13 at 2. He points out that he has not yet been afforded an
opportunity to conduct any discovery as to Crawford’s job duties and involvement with GO
FRAC. Id. In the alternative, George contends that there exist genuine issues of material fact as
to Crawford’s control over the organization and its employees. Id. at 3. While the Court will
reach no decision about the substantive issue presented in the motion at this time, it agrees with
George that the motion is premature.
While the motion cites to Rule 56(f), it is apparent to the Court that Plaintiff’s counsel was simply using the
previous enumeration of Rule 56. Rule 56(d) now embodies former Rule 56(f).
Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Motions under Rule
56(d) are “‘broadly favored and should be liberally granted’ because the rule is designed to
‘safeguard non-moving parties from summary judgment motions that they cannot adequately
oppose.’” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citing Culwell v. City of Fort
Worth, 468 F.3d 868, 871 (5th Cir. 2006).
In other words, the nonmoving party must have had an opportunity to discover
information necessary to its opposition to the summary judgment motion before summary
judgment may be granted. See Anderson, 477 U.S. at 250 n.5 (“This requirement in turn is
qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving
party has not had the opportunity to discover information that is essential to his opposition.”).
This Court has previously held that “[a] grant of summary judgment is premature and improper
when basic discovery has not been completed, particularly when the moving party has exclusive
access to the evidence necessary to support the nonmoving party’s claims.” Phongsavane v.
Potter, Civ. Ac. No. SA-05-CA-0219-XR, 2005 WL 1514091, at *5 (W.D. Tex. June 24, 2005)
(citing Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure:
Civil § 2741 at 412–19 (3d ed. 1998)).
To obtain relief under Rule 56(d), the nonmovant must demonstrate two things: “1) why
he needs additional discovery, and 2) how the additional discovery will likely create a genuine
issue of material fact.” Chenevert v. Springer, 431 F. App’x 284, 287 (5th Cir. 2011) (citing
Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999)). However, a
nonmovant is not entitled to any sort of continuance if it “fail[s] to explain what discovery [it]
did have, why it was inadequate, and what [it] expected to learn from further discovery” and only
provides “vague assertions of the need for additional discovery.” Bauer v. Albemarle Corp., 169
F.3d 962, 968 (5th Cir. 1999) (citing Reese v. Anderson, 926 F.2d 494, 499 n. 5 (5th Cir. 1991))
(internal quotation marks omitted). Additionally, beyond the protections and requirements of
Rule 56(d), in the Fifth Circuit, courts have discretion to deny a motion for summary judgment
as premature. See, e.g., Gabarick v. Laurin Mar. (Am.), Inc., 406 F. App’x 883, 890 (5th Cir.
2010); Sunbelt Sav., FSB Dall., Tex. v. Montross, 923 F.2d 353, 358 (5th Cir. 1991).
In this case, Crawford moved for summary judgment on December 16, 2015—less than
two months after the case was initiated. See docket no. 10. The Court has yet to issue a
scheduling order or conduct an initial case management conference. Additionally, the parties
have not yet begun discovery—on the issue presented in the motion or any other. See docket no.
13 at 2 (“The [parties] have yet to conduct any discovery.”). Granting summary judgment not
just before discovery has been completed, but before it has even begun on this issue, would be
premature. See Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 354 (5th Cir. 1989) (“‘Summary
judgment should not . . . ordinarily be granted before discovery has been completed.’”) (citing
Alabama Farm Bureau Mutual Casualty Co., Inc. v. American Fidelity Life Insurance Co., 606
F.2d 602, 609 (5th Cir.1979), cert. denied, 449 U.S. 820 (1980)).
Furthermore, George’s Response meets the two-part test laid out by the Fifth Circuit in
Stearns. See Stearns, 170 F.3d at 534 (holding that the nonmovant must show “1) why the
[nonmovant] needs additional discovery and 2) how the additional discovery will likely create a
genuine issue of material fact”). George explains that since the parties have not yet begun
discovery, he has no competent summary judgment evidence to indicate Crawford’s involvement
into the operations of GO FRAC and Crawford’s job duties.
Docket no. 13 at 4–6.
anticipates that discovery will either allow him to discover facts that indicate Crawford was in
fact involved in the day-to-day operations of GO FRAC or will indicate that perhaps another
corporate officer is an appropriate defendant. Id. at 6. A reasonable opportunity for discovery,
such as the deposition of Crawford or other GO FRAC employees, would likely allow George to
discover facts necessary for him to respond to Crawford’s motion.
It should also be noted that Crawford and the other Defendants have exclusive access to
any knowledge and information that would potentially support George’s opposition to summary
judgment on this issue. As an operator, George is not privy to evidence and knowledge of the
corporation’s officers’ job duties. The Fifth Circuit has held protection under Rule 56(d) is
appropriate in situations in which the moving party has exclusive possession of any evidence that
would support the opposition. Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir.
1991). If any potential evidence is within the control or possession of the movant and may
perhaps support the case of the nonmovant, a Rule 56(d) motion should be granted. Culwell v.
City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006).
Crawford argues his motion is not premature because Rule 56(b) provides that “a party
may file a motion for summary judgment at any time until 30 days after the close of all
discovery.” Docket no. 16 at 3 (citing Fed. R. Civ. P. 56(b)). However, the Supreme Court has
made clear that the granting of summary judgment is limited until there has been “adequate time
for discovery.” Celotex, 477 U.S. at 322. Crawford also seems to contend that since the issue of
whether someone is an “employer” for purposes of the FLSA is a question of law, no discovery
should be needed. Docket no. 16 at 3. However, this position neglects the reality that in
examining the issue, the Court must make subsidiary findings of fact. Beliz v. W.H. McLeod &
Sons Packing Co., 765 F.2d 1317, 1327 (5th Cir. 1985). The economic reality test is necessarily
a fact-intensive inquiry that requires a court to examine the totality of the circumstances and
closely evaluate the facts of a corporate officer’s job functions. See Gray v. Powers, 673 F.3d
352, 355 (5th Cir. 2012) (conducting such an inquiry).
For these reasons, the Court holds that summary judgment in this case is premature and
denies Crawford’s motion at this time. It makes no determination as to the merits of the motion.
The Court also notes that Crawford has not yet filed his Answer or a Rule 12 motion even though
the deadline has passed. “There is no provision in the Federal Rules that permits a defendant to
file a motion for summary judgment in lieu of an Answer.” See A&P Enterprises, LLC v. City of
Gulfport, Civ. Ac. No. 1:10-CV-473-LG-RHW, 2011 WL 282380, at *1 (S.D. Miss. Jan. 26,
2011). The Court will allow Crawford seven days to file an Answer or a Rule 12 motion.
In light of the foregoing analysis, Defendant Richard Crawford’s Motion for Summary
Judgment (docket no. 10) is DENIED without prejudice to refiling as premature. Crawford may
file a duplicate motion or new motion on the same issue at a later date that complies with any
subsequent scheduling order issued by the Court once George has had an opportunity to conduct
meaningful discovery on this issue.
Additionally, Crawford is ORDERED to file his Answer or a Rule 12 motion by January
It is so ORDERED.
SIGNED this 7th day of January, 2016.
UNITED STATES DISTRICT JUDGE
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