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rejecting that a six-month delay in the court deciding a motion for conditional certification is an extraordinary circumstance
Summary of this case from Gomez v. Glob. Precision Sys.Opinion
No. MO:18-CV-0221-DC-RCG
2019-08-12
Emanuel S. MENDOZA, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. AFO BOSS, LLC, Buchanan Oilfield Services, LLC, Brendon Young, and Richard Lee, Defendants.
Douglas B. Welmaker, Moreland Verrett, PC, Austin, TX, for Plaintiff. Regina Bacon Criswell, Law Office of Regina Bacon Criswell, San Antonio, TX, for Defendants.
Douglas B. Welmaker, Moreland Verrett, PC, Austin, TX, for Plaintiff.
Regina Bacon Criswell, Law Office of Regina Bacon Criswell, San Antonio, TX, for Defendants.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION
RONALD C. GRIFFIN, UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT are Plaintiff Emanuel S. Mendoza's (Plaintiff), individually and on behalf of all others similarly situated, Motion for Conditional Certification and Motion for Equitable Tolling of Statutes of Limitation on Claims of Putative Collective Action Members. (Docs. 13, 22). This case is before the undersigned through an Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. (Doc. 9). This Court has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). See, e.g. , Esparza v. C & J Energy Servs., Inc. , No. 5:15-CV-850-DAE, 2016 WL 1737147, at *1 (W.D. Tex. May 2, 2016) (noting conditional certification involves non-dispositive issues); Wedel v. Vaughn Energy Servs., LLC , No 2:15-CV-93, 2015 WL 5920034, at *1 (S.D. Tex. Oct. 9, 2015) (same). After reviewing the parties' pleadings and relevant case law, the Court GRANTS in part Plaintiff's Motion for Conditional Certification (Doc. 13) and DENIES Plaintiff's Motion for Equitable Tolling of Statutes of Limitations (Doc. 22).
I. BACKGROUND
On December 4, 2018, Plaintiff filed this suit as a collective action alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq. , against Defendants AFO Boss, LLC, Buchanan Oilfield Services, LLC, Brendon Young, and Richard Lee (collectively, Defendants). (Doc. 1). Defendants operate an oilfield disposal and waste processing facility in Midland, Texas. Id. Defendants employ hourly operators to work at the facility. Id. Plaintiff alleges that operators would generally alternate between one week of 12-hour shifts and one week off. (Doc. 13 at 2). Plaintiff further alleges that Defendants would treat all hours worked as having been worked over the course of two weeks, thus severely decreasing the amount of overtime for which the operators were paid a premium wage. Id. at 2–3.
On February 8, 2019, Plaintiff filed the instant Motion for Conditional Certification. (Doc. 13). Plaintiff seeks to conditionally certify the following class:
All current and former hourly operators who worked for Defendants within the past three years.
(Doc. 13-8 at 1). If the Court conditionally certifies the class, Plaintiff requests that the Court order Defendant to produce contact information of those putative class members and to approve Plaintiff's proposed manner of notice. (Doc. 13 at 1). On March 7, 2019, Defendants filed a response in opposition to the Motion for Conditional Certification. (Doc. 16). On March 14, 2019, Plaintiff filed a reply. (Doc. 19).
On July 11, 2019, Plaintiff filed a Motion for Equitable Tolling of Statutes of Limitation on Claims of Putative Class Members. (Doc. 22). On July 25, 2019, Defendants filed a response in opposition. (Doc. 24). Plaintiff did not file a reply.
II. LEGAL STANDARD
An employee may bring an action for violations of the minimum wage and overtime provisions of the FLSA either individually or as a collective action on behalf of himself and "other employees similarly situated." 29 U.S.C. § 216(b). Unlike a class action filed under Federal Rule of Civil Procedure 23(c), a collective action under § 216(b) provides for a procedure for plaintiffs to "opt-in," i.e., affirmatively notify the court of their intention to become parties to the collective action. Roussell v. Brinker Int'l, Inc. , 441 F. App'x 222, 225 (5th Cir. 2011) (citing Sandoz v. Cingular Wireless LLC , 553 F.3d 913, 916 (5th Cir. 2008) ). Although the Fifth Circuit has declined to adopt a specific test to determine when a court should conditionally certify a class or grant notice in a case brought under the FLSA, the majority of courts within the Fifth Circuit have adopted the Lusardi two-stage approach, after Lusardi v. Xerox Corp. , 118 F.R.D. 351 (D.N.J. 1987).
See, e.g. , Vanzzini v. Action Meat Distribs., Inc. , 995 F. Supp. 2d 703, 719 (S.D. Tex. 2014) (applying Lusardi ); Mateos v. Select Energy Servs., LLC , 977 F. Supp. 2d 640, 643 (W.D. Tex. 2013) ; Tice v. AOC Senior Home Health Corp. , 826 F. Supp. 2d 990, 994 (E.D. Tex. 2011) ; Marshall v. Eyemasters of Tex., Ltd. , 272 F.R.D. 447, 449 (N.D. Tex. 2011).
The two stages of the Lusardi approach are the "notice stage" and the "decertification stage." See Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1216 (5th Cir. 1995), overruled on other grounds , Desert Palace, Inc. v. Costa , 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). At the notice stage, the district court "determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." Acevedo v. Allsup's Convenience Stores, Inc. , 600 F.3d 516, 519 (5th Cir. 2010). "Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class." Mooney , 54 F.3d at 1214. If the court finds that the putative class members are similarly situated, then conditional certification is warranted and the plaintiff will be given the opportunity to send notice to potential class members. Id. After the class members have opted in and discovery is complete, the defendant may then file a decertification motion—the second stage of the Lusardi approach—asking the court to reassess whether the class members are similarly situated. Id. At that point, the court will fully evaluate the merits of the class certification. Id.
III. DISCUSSION
The Court's analysis here need only address the first stage of the Lusardi inquiry. Plaintiff has shown that "(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 respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit." Tolentino v. C & J Spec–Rent Servs., Inc. , 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010). During the notice stage, the court makes its decision "usually based only on the pleadings and any affidavits which have been submitted[.]" Id. Courts "appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination." Mooney , 54 F.3d at 1214 n. 8. "FLSA collective actions are generally favored because such actions reduce litigation costs for the individual plaintiffs and create judicial efficiency by resolving in one proceeding common issues of law and fact arising from the same alleged activity." Tolentino , 716 F. Supp. 2d at 646.
Defendant does not contest that (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 respects given the claims and defenses asserted; or that (3) those individuals want to opt in to the lawsuit. Accordingly, because Plaintiff has provided substantial allegations for each of these factors, the Court finds that Plaintiff has met his burden for conditional certification.
A. Merits-Based Arguments Are Irrelevant at the Conditional Certification Stage
The only argument Defendants advance against conditional certification is that they have already paid the potential plaintiffs for unpaid overtime wages, and accordingly, there are no other similarly situated employees to join this suit. (Doc. 16 at 1). Specifically, Defendants claims they executed settlement agreements with fourteen potential plaintiffs as the result of a separate FLSA lawsuit in 2018. Additionally, Defendants allege they sent checks to the remaining potential plaintiffs for any unpaid overtime wages. (Doc. 16). Plaintiff argues that Defendants' defense of "offset" goes to the merits of the case and should not be considered during the conditional certification phase. (Doc. 19 at 1–2).
It is well-established that any defenses available to Defendants are more appropriately considered during the second stage of the Lusardi inquiry. Mooney , 54 F.3d at 1213 n. 7, 1215–16 ; See Falcon v. Starbucks Corp. , 580 F. Supp. 2d 528, 534 (S.D. Tex. 2008). The Court finds that Defendant's sole argument against conditional certification goes to the merits of Plaintiff's claims and is, therefore, irrelevant to the question of collective treatment. Accordingly, Defendant's assertions should not defeat Plaintiff's arguments for conditional certification. For these reasons, the Court finds that the following class shall be conditionally certified:
All current and former hourly operators who worked for Defendants during the three-year period before the date of this Order.
B. Approval of Method of Notice
Plaintiff also seeks approval of the proposed notice, method of distribution, disclosure of contact information for the putative class members, and corrective notice. (Doc. 12). Because Defendants raise no objections, both the proposed notice and corrective notice shall be APPROVED by the Court.
C. Plaintiff's Request for Equitable Tolling
Plaintiff seeks equitable tolling of the statute of limitations for the benefit of potential class members who may choose to opt-in to this action but whose claims may be adversely affected by the normal running of the FLSA limitations period. (See generally doc. 20). Plaintiff argues equitable tolling is warranted because he diligently pursued their claims and that any delay associated with the motion to conditionally certify is "beyond [P]laintiff's control." Id. at 4. Defendants argue Plaintiff has failed to meet his burden of showing that extraordinary circumstances exist justifying equitable tolling. (Doc. 24 at 3).
A district court has discretion regarding whether to equitably toll the statute of limitations in an FLSA case when the plaintiff demonstrates that "he has been pursuing his rights diligently, ... and ... some extraordinary circumstance [applies]." Sandoz v. Cingular Wireless, L.L.C. , 700 F. App'x. 317, 320 (5th Cir. 2017). The Fifth Circuit has emphasized that equitable tolling "is a narrow exception ... that should be ‘applied sparingly.’ " Id. Equitable tolling is justified "when, despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim." Pacheco v. Rice , 966 F.2d 904, 906–07 (5th Cir. 1992). In the instant case, the Court finds that Plaintiff has not shown extraordinary circumstances warranting equitable tolling of the statute of limitations. Specifically, the Court finds that the six-month delay in ruling on the Motion for Conditional Certification does not warrant equitable tolling. McKnight v. D. Houston, Inc. , 756 F.Supp.2d 794, 808–09 (S.D. Tex. 2010) (rejecting equitable tolling of FLSA claims when the motion for conditional certification was pending for six months).
Therefore, Plaintiff's Motion for Equitable Tolling of Statutes of Limitation on Claims of Putative Collective Action Members shall be DENIED . (Doc. 22). IV. CONCLUSION
For the foregoing reasons, the Court GRANTS in part Plaintiff's Motion for Conditional Certification. (Doc. 13). Additionally, the Court DENIES Plaintiff's Motion for Equitable Tolling of Statutes of Limitation on Claims of Putative Collective Action Members. (Doc. 22).
It is hereby ORDERED that the Parties shall comply with the following deadlines and directives:
It is ORDERED that Defendants shall, within ten (10) days of this Order, provide Plaintiff's counsel with the names, last known addresses, e-mail addresses, and telephone numbers of the potential opt-in plaintiffs (Court-Ordered Information), in Excel format.
It is further ORDERED that Plaintiff shall, within twenty-one (21) days of Plaintiff's receipt of the Court-Ordered Information, be permitted to send Notice of this action in the form set forth in Plaintiff's proposed Notice and the Consent Forms, by mail, e-mail, social media, text message, and website posting for a period of sixty (60) days from the date Plaintiff receives the Court-Ordered Information from Plaintiff.
It is further ORDERED that within three (3) days of the initial mailing of the Notice, Plaintiff's counsel shall file an Advisory with the Court indicating the date of mailing of the Notice.
It is further ORDERED that within three (3) days of Plaintiff's filing of the Advisory with the Court, Defendants shall post a copy of the Notice and Consent Form in a conspicuous and accessible location at each of its places of work where it currently employs one or more putative class members. The copy of the Notice and Consent Form shall remain posted continuously until the expiration of the 60-day Notice Period.
It is further ORDERED that Defendants shall, within three (3) days of posting the notices at their places of work, certify to the Court in writing that the Notices have been posted and the locations of the postings.
It is further ORDERED that the notice shall inform all potential opt-in plaintiffs that they shall have until sixty (60) days from the date Plaintiff sends the Notice and Consent Forms to deposit in the mail or email their Notices of Consent to Join to counsel for Plaintiff.
It is finally ORDERED that Plaintiff shall, no later than fifteen (15) days after the expiration of the 60-day notice period (which ends sixty (60) days from the date Plaintiff sends the Notice and Consent Forms to the putative plaintiffs) file with the Court the Notices of Consent to Join for all opt-in plaintiffs they receive.
It is so ORDERED .