McCloud v. McClinton Energy Group, L.L.C. et al

Filing 51

ORDER GRANTING IN PART AND DENYING IN PART 48 Motion for Leave to Amend Complaint. The Court GRANTS IN PART AND DENIES IN PART Plaintiffs Motion for Leave to Amend (Dkt. # 48). IT IS SO ORDERED. Signed by Judge David A. Ezra. (se)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND DIVISION

LARON MCCLOUD, on behalf of
§
himself and all others similarly situated, §
§
Plaintiff,
§
§
v.
§
§
MCCLINTON ENERGY GROUP,
§
L.L.C. and JAYCAR ENERGY
§
GROUP, L.L.C. d/b/a JAYCAR FRAC §
PLUGS,
§
§
Defendants.
§
________________________________ §

CV NO. 7:14-CV-120

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
Before the Court is a Motion for Leave to Amend Complaint filed by
Plaintiff Laron McCloud (“Plaintiff” or “McCloud”), on behalf of himself and all
others similarly situated. (“Mot.,” Dkt. # 48.) Pursuant to Local Rule 7(h), the
Court finds this matter suitable for disposition without a hearing. For the reasons
that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s
Motion for Leave to Amend Complaint.
BACKGROUND
The instant motion arises out of Plaintiff’s employment from May
2012 to May 2014, when he worked for Defendants McClinton Energy Group,
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LLC and Jaycar Energy Group, LLC (collectively, “Defendants”) 1 as a plug
technician 2 until he was promoted to shop foreman. (“McCloud Decl.,” Dkt. # 17,
Ex. 1 ¶ 2.) As a plug technician, Plaintiff participated in inserting composite plugs
in the well bore of oil and natural gas wells as part of the hydraulic fracturing
(“fracking”) process and monitoring wire line speed and pressures. (Id. ¶ 3.)
Plaintiff alleges that Defendants failed to pay him overtime, even though he
routinely worked 16 to 20 hour days, six or seven days a week (id. ¶ 5), and that
they inappropriately classified him as an employee exempt from the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201–209 (id. ¶¶ 19, 27).
On July 10, 2014, Plaintiff filed a Complaint in this Court, naming
McClinton and Jaycar as Defendants. (“Compl.,” Dkt. # 1.) He asserted a failure
to pay overtime claim under the FLSA on behalf of himself and all persons
employed by Defendants as plug technicians from July 1, 2011 to the present. (Id.
at 4–5.) Plaintiff sought unpaid overtime wages as liquidated damages, as well as
attorney’s fees and costs. (Id. at 5.) On February 20, 2015, the Court conditionally
certified a class of persons employed by Defendants as plug technicians who were
dispatched out of two particular yards over a three-year period. (Dkt. # 32 at 22.)

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Jaycar is a subsidiary of McClinton Energy Group. (Dkt. # 11, Ex. 1 ¶ 3.)

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Plug technicians are also referred to as “plug hands.” (Mot. at 1.)
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Meanwhile, on November 13, 2014, Plaintiff filed a second suit
against Defendants in the Western District of Texas’s San Antonio Division, which
alleged that Plaintiff was terminated by Defendants three months after filing the
instant action and the day after receiving a verbal warning for discussing employee
compensation with other employees while at work. Complaint, McCloud v.
Jaycar, No. 7:15-cv-19, Dkt. # 1, at 1–3 (W.D. Tex. Nov. 13, 2014). On February
20, 2015, the Court transferred the case to the Midland Division and ordered that
the case be consolidated with the instant action. (Dkt. # 14.) Order Granting
Motion to Change Venue, McCloud, No. 7:15-cv-19, Dkt. # 14 (W.D. Tex. Feb.
20, 2015).
On June 5, 2015, Plaintiff filed the instant Motion for Leave to
Amend Complaint. (Mot.) On June 12, 2015, Defendants filed their Response.
(“Resp.,” Dkt. # 49.) Plaintiff did not file a reply.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 15, a party has 21 days to
amend a pleading as a matter of course. Fed. R. Civ. P. 15(a). To amend a
pleading after that period, a party must obtain the opposing party’s consent or the
court’s permission. Id.
Generally, courts permit a plaintiff at least one opportunity to amend
his complaint within the time permitted by the scheduling order. Great Plains
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Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000).
In deciding whether to grant leave, 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)).
DISCUSSION
In his Motion, Plaintiff seeks leave to amend the Complaint to include
twelve additional opt-in plaintiffs, a claim under 29 C.F.R. § 516, and a retaliation
claim. (Mot., Ex. 1 ¶¶ 8–19, 46, 51–68.) Plaintiff also seeks leave to amend his
damage claims to include reinstatement of his employment and damages for lost
wages. (Id. at 9.) Although Defendants indicate that they are unopposed to
Plaintiff’s Motion, they nevertheless contend that the claim under 29 C.F.R. § 516
is futile and that the retaliation claim is duplicative of the claim raised in the
member case. (Resp. ¶¶ 2–4.) The Court therefore addresses Defendants’
arguments.

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I.

Futility of Plaintiff’s Proposed FLSA Records Violation Claim
Plaintiff seeks leave to amend his Complaint to include a

recordkeeping violation under 29 C.F.R. § 516. (Mot. ¶¶ 3–4; id., Ex. 1 ¶ 46.)
Defendants contend such a claim is futile. (Resp. at 1.)
An amendment is futile when it “would fail to state a claim upon
which relief could be granted,” as determined under the 12(b)(6)
standard. Stripling, 234F.3d at 873. To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Under the FLSA, all employers subject to the FLSA are required to
preserve accurate records reflecting the number of hours worked by employees. 29
U.S.C. § 211(c); Mohammadi v. Nwabuisi, 990 F. Supp. 2d 723, 738 (W.D. Tex.
2014) (citing 29 U.S.C. § 211(c) and 29 C.F.R. § 516.2(a)(7)), affirmed in part and
remanded in part on other grounds, --- F. App’x ----, 2015 WL 1323150 (5th Cir.
Mar. 25, 2010). However, the FLSA does not create a private cause of action for a
violation of the recordkeeping provision; it is well established that enforcement of
the recordkeeping provision rests solely with the Department of Labor. Castillo v.
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Givens, 704 F.2d 181, 198 n.41 (5th Cir. 1983) (noting that the FLSA provides “no
private enforcement mechanism” in the event that an employer fails to abide by the
FLSA’s recordkeeping provision); Perez v. T.A.S.T.E. Food Prods., Inc., No. 5:13CV-655-DAE, 2014 WL 412327, at *5–6 (W.D. Tex. Feb. 3, 2014) (dismissing
plaintiff’s recordkeeping violation claim because no private cause of action exists
under the FLSA); see also Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832,
844 (11th Cir. 2002) (holding that employees do not have a cause of action for a
recordkeeping violation). Consequently, Plaintiff’s record-keeping violation claim
is futile, and the Court DENIES Plaintiff leave to amend his Complaint with said
claim.
The Court notes that evidence of the record-keeping violations may
nevertheless be relevant to Plaintiff’s unpaid overtime claim, as such evidence
would shift the burden of proving improper compensation from Plaintiff to
Defendants. Reeves v. Int’l Tel. & Tel. Corp., 616 F.2d 1342, 1351 (5th Cir. 1980)
(describing the burden); Mohammadi v. Nwabuisi, 990 F. Supp. 2d 723, 738–39
(W.D. Tex. 2014); Perez, 2014 WL 412327, at *6. The Court therefore
emphasizes that the denial of leave to amend shall not preclude Plaintiff from
introducing evidence of the record-keeping violation in support of his other claims
as the case proceeds.

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II.

Plaintiff’s Proposed Retaliation Claim
Plaintiff also seeks leave to amend his Complaint with a retaliation

claim and accompanying factual allegations and damages, all of which mirror the
substance of the member case in this action. (Mot. ¶ 6; id., Ex. 1 at 7–8.)
Defendants contend that the amendment is unnecessarily duplicative of the claim
set forth in the member case.
While consolidation expedites trial resolutions and eliminates
duplicative claims and confusion, it does not completely fuse the lead and member
cases to the point that they are one single action. Miller v. U.S. Postal Serv., 729
F.2d 1033, 1036 (5th Cir. 1984). In fact, the consolidated cases so retain their
distinct identities that each requires its own judgment in order to protect the
parties’ rights. Shafer v. Army & Air Force Exch. Serv., 376 F.3d 386, 394 (5th
Cir. 2004). Accordingly, the claim is not duplicative such that it would constitute a
substantial reason for the Court to deny leave to amend, and the Court GRANTS
Plaintiff leave to amend his Complaint with the retaliation claim, as well as the
accompanying factual allegations and damage requests. See Dussouy v. Gulf
Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981) (holding that district courts
may only deny leave to amend when there is a substantial reason for doing
so); Galvan v. SBC Pension Ben. Plan, No. CIV. SA-04-CV-333-XR, 2007 WL
951535, at *3 (W.D. Tex. Mar. 28, 2007) (reciting that the court had granted the
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plaintiff’s unopposed motion to amend even though the amended complaint and a
separate complaint filed by the plaintiff contained an identical claim, but had
required her to inform the court how she would proceed with the two cases); In re
Enron Corp. Sec., Derivative & ERISA Litig., 258 F. Supp. 2d 576, 609–11 (S.D.
Tex. 2003) (holding that the plaintiff should be allowed to amend his complaint by
adding a claim from a separate action because the defendant would suffer no
prejudice).3
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Plaintiff’s Motion for Leave to Amend (Dkt. # 48).
IT IS SO ORDERED.
DATED: San Antonio, Texas, July 20, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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The Court notes, however, that Plaintiff does not have the right to “maintain two
separate actions involving the same subject matter at the same time in the same
court and against the same defendant[s].” Oliney v. Gardner, 771 F.2d 856, 859
(5th Cir. 1985). Accordingly, once Plaintiff amends his Complaint, Defendants
may have a basis to seek dismissal of the member case. See id.; Friends of the
Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 362 (5th Cir. 1996).
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