Graham v. Jet Specialty, Inc.
ORDER GRANTING IN PART AND DENYING IN PART 12 Motion to Certify Class Signed by Judge David A. Ezra. (lg1)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
STACY GRAHAM, on behalf of
himself and all others similarly situated, §
JET SPECIALTY, INC.,
ORDER GRANTING IN PART AND DENYNG IN PART
PLAINTIFF’S MOTION TO CONDITIONALLY CERTIFY A
COLLECTIVE ACTON AND TO ISSUE NOTICE
Before the Court is a Motion to Conditionally Certify a Collective
Action and to Issue Notice filed by Plaintiff Stacy Graham (“Graham” or
“Plaintiff”), on behalf of himself and all others similarly situated. (Dkt. # 12.) On
January 11, 2016, the Court heard oral argument on the Motion. James M. Loren,
Esq., appeared on behalf of Plaintiff; Russell D. Cawyer, Esq., appeared on behalf
of Defendant Jet Specialty, Inc. (“Jet” or “Defendant”). After careful
consideration of the memoranda in support of and in opposition to the motion, and
in light of the parties’ arguments at the hearing, the Court, for the reasons that
follow, GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion to
Conditionally Certify a Collective Action and to Issue Notice. (Dkt. # 12.)
This case arises out of Plaintiff’s employment by Defendant as a
delivery driver. Defendant operates an oil well part sales and distribution company
throughout Texas, New Mexico, and Oklahoma. (“Am. Compl.,” Dkt. # 4 ¶ 19,
Dkt. # 12 at 9.) Graham worked for Defendant as a delivery driver in Defendant’s
Odessa, Texas office location from March 1, 2013, to April 30, 2014. (Am.
Compl. ¶¶ 7–8; Dkt. # 12 at 1.) His primary duties were to drive and deliver parts
to customers throughout Texas. (Dkt. # 12 at 9.) As part of these duties, Graham
would receive a customer purchase order from Jet, load the ordered parts at the Jet
warehouse, and deliver those parts to customer locations throughout West Texas.
(“Graham Decl.,” Dkt. # 19, Ex. A ¶ 6.)
Four other individuals, all former delivery drivers for Jet, have filed
Consent to Join Suit with this Court; each submitted a declaration in support of
Plaintiff’s Motion for Conditional Certification. (“Benally Decl.,” Dkt. # 12, App.
9–10; “Martin Decl.,” Dkt. # 12, App. 11–12; “Dutton Decl.,” Dkt. # 12, App. 13–
14; “Lopez Decl.,” Dkt. # 12, App. 15–16.) Each declarant alleges that his duties
as a delivery driver included receiving purchase orders from Jet, loading the
ordered parts onto a truck at the Jet warehouse, and driving a truck to deliver the
items to Jet customers. (Benally Decl. ¶ 5; Martin Decl. ¶ 4; Dutton Decl. ¶ 5;
Lopez Decl. ¶ 5.)
Plaintiff alleges that Defendant’s policy was to pay delivery drivers a
flat salary, and that neither he nor similarly situated delivery drivers were paid
overtime for any hour worked over forty hours per week. (Am. Compl. ¶¶ 3, 15–
17; Dkt. # 12 at 3, 10.) Graham claims that he and other similarly situated drivers
were never managers, nor did they otherwise hold positions that would cause them
to be exempt from the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219,
overtime pay requirement. (Dkt. # 12 at 3.) Graham’s declaration states that he
routinely worked 75–80 hours per week and up to 100 hours per week when he
was on call. (Graham Decl. ¶ 7.) Each declarant states that he worked overtime
hours but was never paid overtime pay. (Benally Decl. ¶ 6; Martin Decl. ¶ 5;
Dutton Decl. ¶ 6; Lopez Decl. ¶ 6.) All declarants but Mr. Martin state that they
were paid a flat salary. (Graham Decl. ¶ 7; Benally Decl. ¶ 6; Dutton Decl. ¶ 6;
Lopez Decl. ¶ 6.)
On August 27, 2015, Plaintiff filed a complaint in this Court alleging
violations of the FLSA. (Dkt. # 1.) On September 9, 2015, Plaintiff amended his
complaint as a collective action. (Am. Compl.) Plaintiff seeks unpaid overtime
wages, liquidated damages, and attorneys’ fees and costs on behalf of himself and
all other similarly situated employees who have been employed by Jet as delivery
drivers in the past three years. (Id. ¶¶ 18–22.) Between September 9 and
September 15, 2015, four former delivery drivers for Jet filed their consent to join
the suit. (Dkts. ## 5, 6, 8, 9.) On November 9, 2015, Plaintiff filed the instant
Expedited Motion to Conditionally Certify FLSA Collective Action and Authorize
Notice, with supporting documentation, on behalf of himself and all similarly
situated persons. (Dkt. # 12.) Defendant filed a response in opposition on
December 7, 2015. (Dkt. # 18.) Plaintiff filed a Reply on December 14, 2015.
(Dkt. # 19.)
The FLSA requires employers to compensate an employee one and
one-half times the regular rate for each hour worked in excess of forty hours a
week. 29 U.S.C. § 207(a)(1). The FLSA provides a cause of action to any
employee who was not appropriately compensated for overtime work, and allows
“similarly situated” employees to give written consent to join the lawsuit. Id.
§ 216(b); see also Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516,
518 (5th Cir. 2010) (“Section 216(b) only authorizes such representative actions to
be filed on behalf of individuals who have given their ‘consent in writing to
become . . . a party’” (quoting 29 U.S.C. § 216(b)). This collective action
mechanism allows “[s]imilarly situated employees [to] ‘opt-in’ to a lawsuit under
§ 207(a) to benefit from a judgment.” Walker et al. v. Honghua Am., LLC, 870 F.
Supp. 2d 462, 465 (S.D. Tex. May 7, 2012).
Conditional certification under § 216(b), which allows potential
plaintiffs to “opt in” to a lawsuit, does not have the same legal effect as class
certification pursuant Federal Rule of Civil Procedure 23, where class members
must “opt out” of the lawsuit to avoid being bound by the judgment. Sandoz v.
Cingular Wireless LLC, 533 F.3d 913, 916 (5th Cr. 2008); see also Genesis
Healthcare Corp v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (determining that
conditional certification “does not produce a class with an independent legal status,
or join additional parties to the action. The sole consequence of conditional
certification is the sending of court-approved written notice to employees . . . who
in turn become parties to a collective action only by filing written consent with the
District courts apply one of two tests when determining whether a
group of employees or former employees is similarly situated, warranting
conditional class certification in a § 216(b) action. The first test is a two-step
inquiry set out in Lusardi v. Xerox Corp, 118 F.R.D. 351 (D.N.J. 1987). Under
Lusardi, “the district court makes a decision – usually based only on the pleadings
and any affidavits which have been submitted – whether notice of the action should
be given to potential class members.” Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1213–14 (5th Cir. 1995) (overruled on other grounds by Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003)). The second step under Lusardi is conducted at the
close of discovery when there is more information available to the court; at this
stage, the court, pursuant to a defendant’s motion that the opt-in plaintiffs are not
similarly situated, may decertify the class, and dismiss the opt-in plaintiffs without
prejudice. Id. at 1214. The second test used by district courts is set out in Shushan
v. Univ. of Colo. at Boulder; courts following the Shushan approach typically
require the plaintiff seeking to conditionally certify a class to “satisfy all of the
requirements of rule 23, insofar as those requirements are consistent with . . .
§ 216(b).” 132 F.R.D. 263, 265 (D. Colo. 1990). Courts using the Shushan
approach do not utilize a second “decertification” step at the conclusion of
discovery, because the threshold for conditional certification is much higher than
under the Lusardi test. Id. While the Fifth Circuit has not adopted a test, “most
federal courts have adopted the Lusardi test when deciding these issues.” Pedigo
v. 3003 S. Lamar, LLP, 666 F. Supp. 2d 693, 696 (W.D. Tex. 2009) (quoting
Morales v. Thang Hung Corp., No. 4:08–2795, 2009 WL 2524601, at *2 (S.D.
Tex. Aug. 14, 2009)).
Using the Lusardi test, “[t]he threshold issue to certifying a collective
action under the FLSA is whether the plaintiff can show the existence of a class
whose members are ‘similarly situated.’” Dyson v. Stuart Petroleum Testers, Inc.,
308 F.R.D. 510, 512 (W.D. Tex. Aug. 27, 2015). “[T]his determination is made
using a fairly lenient standard, and typically results in ‘conditional certification’ of
a representative class.” Mooney, 54 F.3d at 1214; see also Dyson, 308 F.R.D. at
512. Where a district court grants conditional certification, “putative class
members are given notice and the opportunity to ‘opt-in.’” Mooney, 54 F.3d at
I. Whether Plaintiff has made a sufficient showing to obtain conditional
A plaintiff pursuing an FLSA claim and seeking class certification
must make three showings to the court: “(1) there is a reasonable basis for
crediting the assertion that aggrieved individuals exist, (2) those aggrieved
individuals are similarly situated to the plaintiff in relevant aspects given the
claims and defenses asserted, and (3) those individuals want to opt-in to the
lawsuit.” McCloud v. McClinton Energy Group, L.L.C., No. 7:14-CV-120, 2015
WL 737024, at *3 (W.D. Tex. Feb. 20, 2015) (quoting Casanova Gold’s Tex.
Holdings Grp., Inc., No. 5:13-CV-1161-DAE, 2014 WL 6606573, at *2 (W.D.
Tex. Nov. 19, 2014). The sufficiency of each of Plaintiff’s showings will be
A. Whether there is a Reasonable Basis for Crediting the Assertion that
Aggrieved Individuals Exist
At the notice stage, a district court may credit the assertion that
aggrieved individuals exist where “there is a factual nexus that binds the named
plaintiffs and potential class members as victims of a particular alleged policy or
practice.” Black v. Settlepou, P.C., No. 3:10–CV–1418–K, 2011 WL 609884, at
*3 (N.D. Tex. Feb. 14, 2011). At this stage of the litigation, “allegations in
pleadings and affidavits are generally sufficient to support a claim for conditional
certification” and establish a sufficient factual nexus to allow notice of the lawsuit
to potential opt-in plaintiffs. Pacheo v. Aldeeb, No. 5:14–CV–121–DAE, 2015
WL 1509570, at *3 (W.D. Tex. Mar. 31, 2015). These affidavits may contain
knowledge “based upon their own observations [of other employees] and
experiences during their employment.” Lee v. Metrocare Servs., 980 F. Supp. 2d
754, 764 (N.D. Tex. Oct. 30, 2013) (citing U.S. v. Cantu, 167 F.3d 198, 204 (5th
Cir. 1999)). Such affidavits, and allegations contained therein, need not be in a
form admissible at trial; rather, alleged facts based upon reasonable personal
observations by the declarants form sufficient proof even if they are “couched in
general terms.” Dyson, 308 F.R.D. at 514; see also Villegas v. Grace Disposal
Sys., LLC, No. H–13–320, 2014 WL 793977, at *5 (S.D. Tex. Feb. 27, 2014)
(finding that opt-in plaintiffs who each alleged they were paid a flat rate without
overtime pay “made the minimal showing that putative class members were
together the victims of a single decision, policy, or plan”).
Here, each of the five affiants alleges that he was hired by Jet as a
delivery driver, responsible for loading customer purchase orders onto a truck and
delivering them to customers throughout Western Texas. 1 (Graham Decl. ¶¶ 3, 6;
Benally Decl. ¶¶ 3, 5; Marin Decl. ¶¶ 3–4; Dutton Decl. ¶¶ 3, 5; Lopez Decl. ¶¶ 3,
5.) Four of the five declarants state that he was paid a flat salary. (Graham Decl.
¶ 7; Benally Decl. ¶ 6; Dutton Decl. ¶ 6; Lopez Decl. ¶ 5.) Each of the declarants
states that he was not paid overtime pay as required by the FLSA. (Graham Decl.
¶ 7; Benally Decl. ¶ 6; Martin Decl. ¶ 5; Dutton Decl. ¶ 6; Lopez Decl. ¶ 5.) At
this stage of litigation, these declarations reasonably demonstrate to the Court that
there may be an aggrieved class of delivery drivers who Jet employed in the past
three years. Accordingly, the parties have made the first showing necessary to
obtain conditional class certification.
B. Whether Aggrieved Individuals are Similarly Situated to the Plaintiff
As established above, affidavits at this stage may be general. See
McCloud, 2015 WL 737024, at *4 n. 5 (collecting cases) (finding “interaction with
fellow employees can be sufficient to establish personal knowledge” at this stage
of the litigation); also see Villarreal v. St. Luke’s Episcopal Hosp., 751 F. Supp. 2d
902, 911–12 (S.D. Tex. Nov. 3, 2010) (“day-to-day work and interaction with
other employees” is sufficient to support a finding of personal knowledge at this
stage in the litigation.) However, “FLSA violations at one of a company’s multiple
Four of the five drivers also allege that they delivered purchase orders to
customers in New Mexico. (Graham Decl ¶ 6; Martin Decl. ¶ 4; Dutton Decl. ¶ 5;
Lopez Decl. ¶ 5.)
locations generally are not, without more, sufficient to support company-wide
notice.” McCloud, 2015 WL 737024, at *8 (quoting Rueda v. Tecon Servs., Inc.
No. A. H–10–4937, 2011 WL 2566072, at *4–6 (S.D. Tex. June 28, 2011))
(explaining that individuals from certain locations would not be included in a
conditional class, where no employee from the location submitted an affidavit in
support of conditional certification).
Jet objects to Plaintiff’s request to include delivery drivers from all of
Jet’s Texas office locations, because the declarations submitted in support of his
motion for conditional class certification were not based on personal knowledge of
a companywide pay practice; rather, they were based upon knowledge of the pay
practices at the Odessa, Texas office location. 2 (Dkt. # 18 at 9.) Accordingly, Jet
requests that the Court limit the conditional class to those delivery drivers who are
or were employed at the Odessa, Texas location.
All declarants but one state that he worked only in the Odessa, Texas
location; only Mr. Dutton states that he worked at “various Western Texas yard
location[s]” during his employment with Jet, but even Mr. Dutton does not state a
specific employment location. (Dutton Decl. ¶ 3.) At this stage, the plaintiff has
not demonstrated that delivery drivers at other Jet locations are subject to the same
In support of this objection, Jet states that four of the five affiants claim only that
they worked in the Odessa, Texas location. (Dkt. # 18 at 12.)
pay practices. Four affidavits attesting to similar compensation schemes at the
Odessa location provide sufficient evidence that the delivery drivers at this office
are similarly situated to the plaintiff in relevant aspects to support conditional
certification for delivery drivers at the Odessa, Texas office location. However,
Plaintiff has not produced sufficient evidence that a comprehensive, company-wide
pay practice exists outside the Odessa, Texas facility. Accordingly, the class of
similarly situated individuals is limited at this time to delivery drivers dispatched
out of Odessa.
C. Whether There is Evidence that Similarly Aggrieved Individuals Will
Opt-in to the Suit
“The final hurdle that Plaintiffs must overcome before obtaining
conditional certification is showing that there are others who will likely desire to
opt in” to the suit. Casanova, 2014 WL 6606573, at *5; see also Honghua Am.,
870 F. Supp. 2d at 471–72 (summarizing cases and finding that some courts
require evidence that potential plaintiffs “desire to opt-in,” while others do not).
Here, plaintiff submitted five affidavits, including his own, from individuals who
have actually joined the suit; this constitutes an adequate showing that there are
others who desire to opt-in to the suit.
Because plaintiff has demonstrated a basis for conditional
certification, the Court GRANTS IN PART his motion for Conditional Class
Certification, insofar as the class for certification is:
All persons employed by Jet Specialty, Inc. as delivery drivers, who
worked at Defendant’s Odessa, Texas location from [insert 3 years prior
to date notice is sent], through [insert date notice is sent].
II. Plaintiff’s Proposed Notice to the Putative Class
A. Scope of Requested Information
At this stage of an FLSA action, courts typically allow plaintiffs to
conduct limited discovery to obtain the names and contact information for potential
class members, so that they may provide notice of the suit. See Heeg v. Adams
Harris, Inc., 907 F. Supp. 2d 856, 865 (S.D. Tex. Oct. 31, 2012). Limited
discovery of potential class members’ “names, last known addresses, and
telephone numbers” is a “routine component of court-facilitated notice in FLSA
collective actions.” Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511,
525–26 (N.D. Tex. Feb. 14, 2014) (granting disclosure of employees’ names and
last known addresses but finding that “the need for compelled disclosure of
prospective class members’ telephone numbers is outweighed by their privacy
interests”); see also Garcia v. TWC Admin., LLC, No. SA:14-CV-985-DAE, 2015
WL 1737932, at *4 (W.D. Tex. Apr. 16, 2015) (“[P]utative class members’ names
and addresses are sufficient to ensure that notice is received.”). Where a court
permits discovery of employees’ names and last known addresses, a plaintiff may
later request additional discovery of contact information for potential plaintiffs
whose notice is “returned . . . as undeliverable.” Heeg, 907 F. Supp. 2d at 865.
To facilitate contact with the putative class, Plaintiff requests the
Defendants to produce, in electronic format, the names, all known addresses, all
known phone numbers, dates of birth, all known e-mail addresses, driver’s license
numbers, social security numbers, and dates of employment for the class members
employed at any time during the three years prior to the date of conditional class
certification. (Dkt. # 12 at 15.) Plaintiff states that e-mail addresses are necessary
so that class members have the option to execute their consent forms online
through an electronic signature service. (Id. at 14.)
Jet objects to the breadth of the requested contact information, and
specifically objects to the request for e-mail addresses. (Dkt. # 18 at 15–16.) Jet
claims it does not collect personal e-mail addresses for its employees, and is
concerned regarding the security and formality of an online notice process. (Id.)
In certain instances, courts in the Western District of Texas permit
prospective plaintiffs to opt-in to a collective action using an e-signature service.
See Dyson, 308 F.R.D. at 517 (finding that no physical signature is necessary for
opt-in consent to be valid). Here, however, plaintiff has not alleged any facts
suggesting that potential plaintiffs’ last known addresses would be insufficient to
send notice to potential plaintiffs. Further, the plaintiff has not alleged a sufficient
basis to justify disclosure of phone numbers. 3 The disclosure of birth dates,
driver’s license numbers, and social security numbers would be overly invasive of
potential plaintiffs’ privacy under any circumstances, and is not justified here.
Plaintiff is entitled to limited discovery of the names, last known addresses, and
dates of employment for all Jet employees who worked as a delivery driver
between in the past three years, determined from the date of this order. Should
notices be returned to Plaintiff as undeliverable, he may request additional
discovery as to those individuals. Defendants should provide this information to
Plaintiffs, in electronic form, within ten days from the date this order is issued.
B. Notice Form and Procedure
It is appropriate for courts to be involved in the notice procedure from
an early stage. Hoffmann-La Roche, 493 U.S. 165, 173 (1989) (stating that “court
intervention in the notice process” is proper at the district court level); see also
Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807, 809 (S.D. Tex. 2003).
Accordingly, this Court will evaluate Graham’s proposed plan for contacting
potential plaintiffs, as well as the proposed notice and consent forms he submitted
Plaintiff states that the phone numbers are necessary to verify the accuracy of the
list provided by Defendant; Plaintiff proposes that it will contact former employees
to determine whether any employee subject to the same payroll practice was
omitted from the list. (Dkt. # 12 at 15.) Such “double-checking” is unnecessary
and overly invasive of employee privacy.
to the Court. (Dkt. # 12 at 13; “Prop. Notice,” Dkt. # 12 App. 1–2; “Prop.
Consent,” Dkt. # 12 App. 3–4.)
1. Notice and Consent Procedure
Graham desires the notice and consent forms to be sent both by first
class and electronic mail within seven (7) days of receipt of the class list from
Defendant, and requests permission to hire a third party class action administration
company to oversee the mailing of the notice and forms. (Dkt. # 12 at 13.) Jet
does not object to the use of a third-party claims administrator, so long as the
contact information for potential class members is provided directly to the
administrator and is not disclosed to the Plaintiff. (Dkt. # 18 at 15.)
This Court approves notice via first-class mail, but does not approve
notice via electronic mail for the reasons stated above. Jet did not cite any
authority justifying the restriction that information be shared with the claims
administrator only, and the court has found no such authority. Accordingly, the
Court approves the use of a third-party claims administrator, should the parties
choose to use one, but does not require that Plaintiff be restricted from viewing the
information Jet discloses.
2. Notice and Consent Form
Jet objects to Plaintiff’s proposed notice on three grounds: (1) the
proposed language could give the appearance of judicial endorsement of the claims
(Dkt. # 18 at 18); (2) the proposed notice does not inform potential opt-ins that
they are not required to hire plaintiffs’ attorney (id. at 19); (3) the proposed notice
form does not inform plaintiffs of the obligations they may incur as opt-in
plaintiffs (Dkt. # 18 at 19–20). Further, Jet objects to Plaintiff’s proposed consent
form on two grounds: (1) the consent form should state that it may be filed with the
Court, rather than through Plaintiff’s counsel (Dkt. # 18 at 19); (2) the consent
form does not inform the potential plaintiff that he or she may hire the attorney of
his or her choice (id.). Plaintiff did not respond to any of these objections.
a. Objections to Proposed Notice
1) Appearance of Judicial Endorsement
Jet objects to language in Graham’s proposed notice, claiming the
language is “one-sided and misleading.” (Dkt. # 18 at 18.) Specifically, Jet
objects to the inclusion of the following sentences:
 During the time you worked at Jet Specialty, you were
compensated without receiving the required time and a half overtime
premium for hours worked over 40 hours.
 . . . you are entitled to double the amount you are owed as
liquidated damages under the law.
 . . .The Court has not decided who is right, but has authorized this
notice to inform you of your right to join this lawsuit.
 . . . If you want to claim additional wages in this case . . .
(Prop. Notice ¶¶ 1–3; Dkt. # 18 at 18) (emphasis added).
The Court agrees with Jet that the words “required” and “entitled”
may mislead potential plaintiffs, because the merits of the case have not yet been
decided. The notice must be reformed to explain that the issues of entitlement to
overtime pay and liquidated damages have not yet been decided. As to the
remainder of the language, the Court does not find that it is misleading to potential
plaintiffs, or gives an in appropriate appearance of judicial endorsement.
2) Possibility of Hiring Other Counsel
A notice form must inform potential class members that they are not
required to retain Plaintiff’s current counsel and that they may contact any
attorney. See Tolentino v. C&J Spec–Rent Servs. Inc., 716 F. Supp. 2d 642, 655
(S.D. Tex. 2010) (“[T]he notice must inform potential class Plaintiffs that they may
contact any attorney of their choosing to discuss the case.”)
Currently, the proposed notice reads:
“If you choose to join this suit, and agree to be represented through
the driver’s attorneys, your counsel in this action will be James M.
Loren of the law firm Loren Law Group. The firm’s contact
information is below. . .”
(Prop. Notice ¶ 5.) The proposed notice does not explicitly state that Plaintiffs
may contact any attorney to represent them in the case. Accordingly, the notice
must be reformed to include this information.
3) Information Regarding Proposed Notice
Courts may require a Plaintiff in an FLSA collective action to amend
a proposed notice form to inform opt-in plaintiffs of their potential financial
liability in the event of an unfavorable judgment. Behnken, 997 F. Supp. 2d at 524
(requiring plaintiffs to amend their proposed notice to inform potential opt-in
plaintiffs that they “may be required to bear the costs of litigation” if their suit is
unsuccessful). District courts also may require a proposed notice form to state that
opt-in plaintiffs may have to participate in discovery or sit for a deposition, absent
a compelling showing that such an advisory would not be appropriate. Roberts v.
S.B. S. Welding, LLC, No. 3:14-CV-3617-B, 2015 WL 8773610, at *2 (N.D. Tex.
Dec. 15, 2015).
Plaintiff’s Reply does not directly address either of these issues, and
does not provide any facts that suggest it would be inappropriate to inform opt-in
plaintiffs of their potential financial liability or potential obligations as parties to
the suit. Accordingly, Plaintiff must amend the notice to include this information.
b. Objections to Proposed Consent Form
Opt-in consent forms may be submitted to Plaintiff’s counsel, so long
as the form does not include language requiring the forms to be submitted through
Plaintiff’s counsel. See Behnken, 997 F. Supp. 2d at 525; Tolentino, 716 F. Supp.
2d at 655. Further, as explained above, the notice or consent form must inform
potential class members that they may contact any attorney to represent them.
Currently, the consent form contains the following language:
In the event the case is certified and then decertified, I authorize
Plaintiffs’ counsel to use this Consent Form to re-file my claims in a
separate or related action against my employer.
I hereby designate Loren & Associates, P.A. to represent me in this
(Prop. Consent ¶¶ 4–5.) This language may cause an opt-in plaintiff to believe that
she must retain Plaintiff’s counsel; further, it may cause an opt-in plaintiff to
believe she could be obligated to participate in additional lawsuits. Neither
impression is permissible; the language must be reformed in accordance with the
legal standards above.
The Court ORDERS that the parties meet and confer, and file a
proposed Notice and Consent form to the Court within seven (7) days of this
Order. The Notice and Consent form must comply with the directives in this order.
C. Requested Response Period and Procedure
Graham requests permission to send a follow-up notice to all potential
plaintiffs who did not respond to the initial notice, thirty days after the first notice
is sent. (Dkt. # 12 at 14.) He also requests a 90-day response period of potential
plaintiffs to submit their consent forms. (Id. at 13–14.) Each request is evaluated
1. Whether Follow-Up Notice is Appropriate
“District courts are split as to whether reminder notices to potential
class members are proper in FLSA actions,” and may deny requests for reminder
notices where the “plaintiff fail[s] to identify any reason why such notice [is]
necessary.” Jones v. Cretic Energy Servs., LLC, -- F. Supp. 3d --, 2015 WL
8489978, at *10 (W.D. Tex. Dec. 9, 2015) (citing Guzelgurgenli v. Prime Time
Specials Inc., 883 F. Supp. 2d 340, 357–58 (E.D.N.Y. 2012)).
Plaintiff requests permission to send a follow-up notice 30 days after
the initial notice is sent, but does not list any specific reasons to support this
request (Dkt. # 12 at 14; see generally Dkt. # 19), and Jet objects, stating that a
follow-up notice is unnecessary and inappropriate (Dkt. # 18 at 16–17). Here,
because Plaintiff has not listed any extenuating circumstances which would
necessitate a follow-up notice, the court finds that a single notice is appropriate.
2. Whether a Ninety-Day Response Time is Appropriate
In the Western District of Texas, “most courts appear to default to a
notice period of 60 days, unless potential plaintiffs are difficult to contact because
of their location or other extenuating factors warrant additional time.” McCloud,
2015 WL 737024, at *10 (collecting cases). Plaintiff requests a 90-day window for
class members to return their consent to Plaintiff’s counsel for filing with the court,
but does not provide any special justification for the 90-day notice period 4 (Dkt.
# 12 at 14); Jet objects to the request (Dkt. # 18 at 16–17). Here, where the
Plaintiff does not allege particular factors that would warrant the grant of
additional time, the Court finds that a 60-day opt-in period is appropriate.
In is hereby ORDERED that the parties must meet and confer, and
file a proposed Notice and Consent form to the Court within seven (7) days of this
Order. The Notice and Consent form must comply with the directives in this order.
It is further ORDERED that Defendants must produce, within ten (10) days of this
Order, the names, last known addresses, and dates of employment for all current
and former employees who worked as delivery drivers at Jet’s Odessa, Texas
location in the past three years. It is further ORDERED that Plaintiffs are
authorized to send the Court-approved notice and consent forms via First Class
mail within seven (7) days of receipt of the class list from Defendant, and are
permitted to hire a third party class action administration company if they deem
Graham cites two cases in support of a 90-day opt-in period. The first, Flores v.
Velocity Exp, Inc., grants a 90-day opt-in period, but does not explain its rationale
in doing so. No. 12–cv–05790–JST, 2013 WL 2468362, at *9–*10 (N.D. Cal.
June 7, 2013). The second, Butler v. DirectSAT USA, LLC, similarly grants a 90day opt-in period, explaining that “numerous courts around the country have
authorized ninety day opt-in periods for collective actions.” 876 F. Supp. 2d 560,
575 (D. Md. 2012) (collecting cases from Maryland, Pennsylvania, and New
York). Neither case provides persuasive reasoning for this court to depart from
precedent in the Fifth Circuit.
this appropriate. It is furtherer ORDERED that Potential plaintiffs are granted
sixty (60) days from the date of which notice is mailed to submit consent to suit
with this Court.
III. Gag Order
Plaintiff’s proposed order contains language restriction
communication between the Defendant and current and former employees, and Jet
objects to the inclusion of this gag order (Dkt. # 18 at 17–18):
Defendant is hereby prohibited from communicating, directly or
indirectly, with any current or former delivery driver about any
matters which touch and concern the settlement of any outstanding
wage clams or other matters related to this suit during the opt-in
period. Defendant shall so instruct all of its managers. This Order
shall not restrict Defendant from discussing with any delivery driver
matters that arise in the normal course of business.
(Dkt. # 12, App. 5–6 at 2–3.)
Courts have broad, but “not unlimited,” authority over “the conduct of
both counsel and parties in FLSA collective actions.” Garcia, 2015 WL 1737932,
at *3. Such “an order limiting communications between parties and potential class
members should be based on a clear record and specific findings that reflect a
weighing of the need for a limitation and the potential interference with the rights
of the parties.” Id. (quoting Gulf Oil & Co. v. Bernard, 452 U.S. 89, 100 (1981)).
Jet objects to this restriction (Dkt. # 18 at 17–18), and Graham does
not provide any explanation as to why this may be necessary (see generally Dkts.
## 12, 19). Absent clear and specific findings on the record demonstrating the
need for limitation on communication between the parties, the Court finds a gag
For the foregoing reasons, the Court GRANTS IN PART and
DENIES IN PART the Plaintiff’s Expedited Motion to Conditionally Certify
FLSA Collective Action and Authorize Notice.
Plaintiffs’ Motion for Conditional Certification (Dkt. # 12) is
GRANTED IN PART. The conditional class is defined as follows: All persons
employed by Jet Specialty, Inc. as delivery drivers, who worked at Defendant’s
Odessa, Texas location from [insert 3 years prior to date notice is sent], through
[insert date notice is sent].
IT IS FURTHER ORDERED that the parties shall meet and confer
regarding the Notice to the Class and Consent form, and shall file with the Court a
proposed Agreed Notice to the Class and Consent form for the Court’s approval
within seven (7) days of this Order. The language in the Notice and Consent form
must comply with this Court’s findings in this Order.
IT IS FURTHER ORDERED that the Defendant produce, in a
useable electronic format, the names, last known addresses, and dates of
employment for all putative class members within ten (10) days of this order.
Plaintiffs are free to move this Court to issue an order for more contact information
IT IS SO ORDERED
DATED: Midland, Texas, January 11, 2016.
David Alan Ezra
Senior United States Distict Judge
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