Markos George v. GO Frac, LLC., et al

Filing 93

ORDER GRANTING 83 Motion for Leave to File late consents; DENYING 86 Motion to Certify Class. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARKOS GEORGE, ET AL.
Plaintiffs,
v.
GO FRAC, LLC, ET AL.
Defendants.

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Civil Action No. 5:15-cv-943-XR

ORDER
On this date, the Court considered Plaintiffs’ motion for leave to file late consents to join
(docket no. 83), and Plaintiffs’ motion to certify class (docket no. 86).
I.

Motion for Leave to file late consent notices

This is a collective action brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§
201, et seq. Plaintiffs initially filed this suit seeking certification of a class of Operators. See
Docket No. 2. An Agreed Order was entered certifying a class of Operators. See Docket No. 24.
Pursuant to that Order, potential class members were required to file their opt-in forms within 60
days after the court-approved Notice was mailed.
On April 4, 2016, without leave of court or consent from the Defendants1, Plaintiffs filed a
First Amended Complaint. See Docket No. 81. In that purported pleading, Plaintiffs seek to add
an additional class of individuals titled Supervisors, but who were allegedly improperly
classified as such.
In their motion for leave to file late consents (Docket No. 83), Plaintiffs seeks to allow 11
individuals to join the class of Operators, despite the court deadline to file having expired.

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Defendants have filed answers to the amended complaint and have not opposed the filing. See Docket Nos. 88-90.

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Defendants object to the late filing noting that Plaintiffs have failed to provide any evidence
justifying the late filing. Docket No. 85.
“Although the caselaw on this issue is wide-ranging, courts have generally decided the
question by balancing various combinations of the following factors: (1) whether ‘good cause’
exists for the late submissions; (2) prejudice to the defendant; (3) how long after the deadline
passed the consent forms were filed; (4) judicial economy; and (5) the remedial purposes of the
FLSA.” Coronado v. D N.W. Houston, Inc., No. CIV.A. H-13-2179, 2014 WL 6674292, at *2
(S.D. Tex. Nov. 24, 2014) (citing numerous cases).
Plaintiffs fail to provide any “good cause” for the late submissions; however, Defendants fail
to establish any prejudice. The deadline has only recently passed. Considering these factors and
the remedial purposes of the FLSA, the Court grants Plaintiffs’ motion.
II.

Motion for Conditional Certification of “Supervisors”

As stated above, Plaintiffs seek an additional certification for a class of Supervisors. On
its face this request is overly broad and is DENIED. When a plaintiff seeks certification to bring
a collective action on behalf of others and asks the court to approve a notice to potential
plaintiffs, the court has discretion to approve the collective action and facilitate notice to
potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). The court
also has discretion to modify the proposed class definition if it is overly broad. See Heeg v.
Adams Harris, Inc., 907 F.Supp.2d 856, 861 (S.D.Tex. 2012) (“A court also 'has the power to
modify an FLSA collective action definition on its own' if the 'proposed class definition does not
encompass only similarly situated employees.”'). In this case, however, the Court is unable to
modify the proposed class. Plaintiffs’ request as written will encompass not only individuals
titled as Supervisors working in the oil fields, but individuals working in administrative and

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executive positions. Moreover, Plaintiffs offer no explanation as to why this class is needed and
differs from the Operator class previously certified.
Conclusion
Plaintiffs’ motion for leave to file late consents to join (docket no. 83) is GRANTED.
Plaintiffs’ motion to certify a class of Supervisors (docket no. 86) is DENIED without prejudice.
SIGNED this 1st day of June, 2016.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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