Silva v. Agave Transportation Services, Inc, No. 2:2021cv01117 - Document 26 (D.N.M. 2023)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gregory J. Fouratt. (eps)
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S i l v a v . A g a v e T r a n s p o r t a t i o n S e r v D i oc ce . s 1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEW MEXICO 3 4 JAVIER SILVA, individually and on behalf of all others similarly situated, 5 Plaintiff, Albuquerque, New Mexico January 31, 2023 10:00 a.m. 6 v. 7 AGAVE TRANSPORTATION SERVICES, INC., 8 9 10 11 12 13 Case No. 2:21-cv-01117-GJF-GBW Defendant. TRANSCRIPT OF MOTION HEARING BEFORE THE HONORABLE GREGORY J. FOURATT UNITED STATES CHIEF MAGISTRATE JUDGE APPEARANCES: For the Plaintiff: 14 15 Ricardo J. Prieto, Esq. Wage and Hour Firm 400 North Saint Paul St. Suite 700 Dallas, TX 75201 For the Defendant: Steven J. Blanco, Esq. Blanco, Ordonez & Wallace, P.C. 5715 Cromo Drive El Paso, TX 79912 18 Court Recorder: A.C. 19 Transcription Service: Chris Hwang Abba Reporting PO Box 223282 Chantilly, Virginia (518) 302-6772 16 17 20 21 20153 22 23 24 Proceedings recorded by electronic sound recording; transcript produced by transcription service. 25 D o c k e t 2 1 (Call to order at 10:00 a.m.) 2 THE COURT: Okay. Good morning to you, Mr. Prieto, 3 I've met Mr. Blanco before. Believe it or not, he testified as 4 a witness in a bench trial. Seems like a long time ago. 5 think it was last year sometime. 6 I And, gentlemen, we're obviously now on the record in 7 Javier Silva individually and on behalf of others similarly 8 situated against Agave Transportation Services, 21 civil 1117. 9 And so my clerk and I were working on this motion. 10 And I realized that the briefing was helpful, but it left me 11 with a lot of questions. 12 And so, I thought I would take some of your time 13 today. 14 need to get some questions answered. I promise this will last less than an hour, but I just 15 And I don't want you to think I'm brand new to wage 16 and hour litigation. 17 I've been doing this job. 18 well. This is my 47th case in the 7 years that And I think I understand it really And so, I'm not a complete neophyte. 19 Mr. Prieto, let me start with you. 20 And let me ask a basic question. 21 question, but I just kind of want to know. 22 23 24 25 It's your motion. This is not a got you Did you do the briefing or did somebody else do the briefing? MR. PRIETO: This is the brief that we worked on. It's combination of, you know, briefing that we've done, a 3 1 combination of the briefing that others (indiscernible) that we 2 know worked on. 3 side, yes, Your Honor. 4 We share our work-product on the Plaintiff's THE COURT: Okay. I fully understand the relatively 5 low threshold that gets us past step 1 or phase 1 under the 6 FLSA. 7 I got that point. I will tell you. And I believe in transparency. 8 going to put my cards on the table and have you guys address 9 them. 10 This is the finished factual submission that I've 11 seen in any of the cases assigned to me. 12 it. 13 And I'm worried about And I'm going to ask you some questions about it. You know it's the defense -- it's the Defendant, the 14 employer's position as well. 15 sole objection. 16 I'm I mean, it's essentially their And I expected and honestly hoped to see some 17 additional factual support in the Reply once the Defendant 18 committed itself to this litigation position, but instead, you 19 doubled down and said this is enough. 20 And one of the benefits of having really skilled law 21 clerks and energetic and ambitious law clerks is they don't 22 mind when I give them additional research assignments to 23 include researching the other cases in which the same counsel 24 have appeared in this district. 25 And Mr. Prieto, I'll tell you that our review of your 4 1 other cases as well as Ms. Arbuckle's, I didn't see 2 anything -- I didn't see anything like this. 3 stronger factual submissions and some cases where the employer 4 didn't even contest the conditional certification. 5 I saw different, So this case at least in my assessment of your work 6 in this district is kind of leading -- it's on the edge of 7 where you've been before, but let me stop. 8 9 Maybe I didn't read the cases carefully or maybe we missed one. Have you taken a position that is as ambitious as 10 you've taken in this case in terms of relying on only one 11 declaration when you have a collective action case in which 12 there has been only one plaintiff who has consented since the 13 case was filed about 14 months ago? 14 MR. PRIETO: Yes, Your Honor. We've certainly done 15 that in the past, but Your Honor's correct. 16 normally the situation that we have, the conditional 17 (indiscernible). 18 That's not Generally, in these sorts of cases, what we do is, 19 you know, we'll change -- if there's a number -- a large number 20 of options, we'll submit those declarations (indiscernible) 21 would be enough. 22 But we have this one option, our general practice is 23 to request some documents (indiscernible) to Your Honor. 24 can -- I've been -- and it may have been in this case, it may 25 have been another, but I -- it may actually have been this Now I 5 1 case. 2 When we asked for the opportunity to conduct some 3 limited discovery, we were told that it's not the general 4 practice of this district to allow that for a phase 1 motion. 5 So we were limited to what we have from our client. 6 Now I'll tell you, Your Honor, we've been in lengthy 7 discussions with opposing counsel. 8 this case settled. 9 We submitted a settlement demand based on that class data. 10 Our hope was to try to get We were initially provided with class data. Then we were told that that class data was incorrect. 11 We were provided with additional class data, the revised class 12 data. 13 14 15 We then submitted a revised, you know, demand and basically didn't hear anything from them. So, you know, the information that we've been 16 provided is what we have with the limitation of course as to 17 any information provided subject to FR 408. 18 that in support of our motion, of course. 19 But this is looking out. We did not submit And you know, I agree, Your 20 Honor, I would love to have more, but you know, for a class 21 that's limited like this, I mean, this is -- my understanding 22 is so like one location per driver. 23 You know, roughly our understanding is the class is, 24 you know, under 100 individuals, maybe 70 or so is we 25 understand it to be. 6 1 And these are intrastate New Mexico only drivers. 2 And it's a straight time of case. 3 fairly straightforward. 4 I think it's, you know, And I'm comfortable with the pleadings that we had 5 filed, but I want to recognize, Your Honor, that I understand 6 your concerns. 7 And certainly, I'd love to have another one or two 8 options to submit, you know, their declaration, whatever 9 documentation that they have. 10 But I do believe that we have submitted enough. But 11 for this sort of a case, if this were definitely a contractor 12 case or an exemption case, then I think the -- what we would 13 have done in that circumstance is we would have urged the Court 14 to allow us an opportunity to conduct the phase 1 discovery. 15 But on a straight time case, Your Honor, I normally 16 felt that this was probably enough that it leads for 17 conditional certification to get the ball rolling. 18 certainly didn't want to delay the case, Your Honor. 19 THE COURT: And we So let me ask you, the -- you just told 20 me that your belief now is that there are fewer than 100 New 21 Mexico-based drivers who might be similarly situated to Mr. 22 Silva. 23 The complaint, albeit this was filed with much less 24 information and 14 months ago, alleges in paragraph 76 that the 25 number exceeded 40. So how -- and I know there's been an 7 1 exchange of information since then. 2 many there are? 3 MR. PRIETO: Why don't you know how We haven't -- so we originally were 4 provided with some class data, Your Honor. 5 changed. 6 case unfortunately. 7 the Defendant. It's been a -- the gold post that's moving in this 8 9 10 And that number And I just can't get a clear answer from I'd love to know that what that number is, Your Honor. That's certainly questionable and I'm the first one (indiscernible) have the opposing counsel in these cases. 11 THE COURT: So, in their response, in their 12 opposition, near the end, I forget exactly where it is, well, 13 now I remember because I wrote it down, pages 11 and 12 of 14 their response, they essentially invite me to either defer a 15 decision on this motion pending some discovery or to deny it 16 without prejudice to re-filing after some discovery has been 17 conducted. 18 If I were to grant that, Mr. Prieto, do you have a 19 sense about what you would do? 20 discovery only? 21 you thought that far ahead? 22 Would it be documentary Would there be a deposition involved? MR. PRIETO: Have I haven't, Your Honor, but if Your Honor 23 were inclined to go in that direction, I think if the -- and 24 it'll really depend on what the concerns of the Court are. 25 If the concern is, you know, we -- you know, the 8 1 number of individuals that were subject to this pay practice, I 2 think some basic written discovery would address that. 3 If the Court wants to take that a step further and 4 maybe dip in some. 5 have some objection to that. 6 go in that direction, then I believe depositions would be 7 necessary. 8 information Your Honor wants. 9 THE COURT: There is base discovery, which clearly we But if the Court was inclined to So it'll really depend on what additional I'm not interested in -- I'm not going to 10 reach the merits at all in this decision. 11 really disciplined about that. 12 And so, I'll be In your informal exchange of information, did you 13 learn whether vacuum truck drivers like Mr. Silva are paid the 14 same as the folks who drive trucks that have a different 15 mission, but still with Agave and still in New Mexico? 16 MR. PRIETO: Yes, Your Honor, we were told that there 17 were other truck drivers that were paid straight time wages, 18 just like (indiscernible). 19 THE COURT: Okay. Was there an agreement between 20 counsel that anything you learned in the informal exchange of 21 information would not be used in a motion or in a declaration? 22 Is that why I didn't see it? 23 MR. PRIETO: Yes, Your Honor. The conversations I've 24 had with Mr. Blanco have all been subject to FR 408. 25 agreed to respect that and follow that rule. So I've 9 1 THE COURT: All right. So let me turn to Mr. Silva's 2 affidavit. 3 concern is that his affidavit is conclusory. 4 conclusory as to be impermissibly so. 5 in front of you, Mr. Prieto? Correction, his declaration. 6 MR. PRIETO: 7 THE COURT: And my primary And it is so And so, do you have it Yes, Your Honor. Okay, so paragraph 2 tells me that he 8 worked for Agave for two and a half years. 9 although it doesn't say that that was his full-time job for the 10 entire two and a half years. 11 MR. PRIETO: 12 THE COURT: I'm assuming, Is that a safe assumption? Yes, Your Honor. Okay. And then, we go -- then my concern 13 takes me to -- and so, I want to credit the two and a half 14 years. 15 of a substantial foundation. 16 30 months is a, you know, is -- leads in the direction We go to paragraph 9. And remember, my concern is 17 that it's conclusory. 18 personal knowledge drawn from my experience and observations 19 working for Agave, conversations with other truck drivers 20 employed by Agave in New Mexico, and my familiarity with 21 Agave's payroll practices and policies, I know that other New 22 Mexico drivers were subject or subjected to the same straight 23 time for overtime pay practices. 24 other drivers? 25 MR. PRIETO: And there, Mr. Silva swore, based on my I'll stop it there. How many I don't have an answer to that specific 10 1 2 number, Your Honor. THE COURT: Does it make a difference in wage and 3 hour cases if he had a conversation with one other driver 4 versus let's say 10? 5 MR. PRIETO: I haven't seen cases that discuss that, 6 Your Honor. 7 you from my personal experience, I haven't had a conditional 8 certification decision come down on that sort of an analysis. 9 So I can't say one way or the other. I can tell We -- you know, I think what the cases say at this 10 point is that, you know, and the Rules of Evidence are relaxed 11 at this stage, Your Honor. 12 consistent on that. 13 I think courts are pretty The requirement at this stage is simply that, you 14 know, the statements are made based on first-hand personal 15 knowledge, which these statements are, Your Honor. 16 I've personally spoken to my client about each one of 17 these paragraphs before we signed. 18 appreciate, you know, what it means to sign stuff like this and 19 submit to Your Honor, but I can not tell you that number 20 specifically. 21 But we certainly I'm happy to get any information that Your Honor 22 would want. 23 questions like that, but at this point, I just don't want to 24 say something that I don't have particular knowledge over. 25 I can supplement it if you'd like and answer your THE COURT: Let me keep going with the declaration 11 1 left open as many doors as it closed to the reader. 2 least the -- at least me as the reader. 3 It's at So, for example, paragraph 9 says nothing about how 4 many other drivers he talked to. 5 this two and a half year period he talked to other drivers. 6 It says nothing about when in I don't know whether these conversations began at the 7 beginning of his employment, and they continued throughout the 8 30 months or maybe they were, you know, clustered near the end 9 of the 30 months. 10 I don't know anything about that. I don't have a single other name in the case. 11 Obviously, there's been no other consent nor did Mr. Silva 12 share any other name. 13 I don't know whether this was a company that had a 14 yard to which the drivers showed up each morning. 15 and then, they went out into the oil field to do their thing or 16 did they take the trucks home with them. 17 Let's see. You know, You know, I don't know if everybody 18 worked the same schedule or they worked, you know, different 19 schedules depending on the mission that they were performing 20 and perhaps the part of the oil field where they were doing all 21 of their stuff. 22 I don't know -- Mr. Silva doesn't tell me how he 23 knows what truck drivers, who drove trucks that were not vacuum 24 trucks. 25 or something, how he knows what they're paid. So whatever else they did, they hold gravel or caliche 12 1 You agree that there's a whole lot of information 2 that could have been in this declaration that would have 3 strengthened his foundation and undercut a claim that it was 4 conclusory? 5 6 MR. PRIETO: to get to that question two ways if I may? 7 THE COURT: 8 MR. PRIETO: 9 10 Well, Your Honor, you know, and I want Please. I mean, certainly, we could have added more information, detailed information. Now whether or not that additional information is 11 relevant at this stage, well, that's another issue. You know, 12 we had -- we're alleging a straight-time violation. We're not 13 alleging an off-the-clock claiming for what happened pre-shift 14 or post-shift or any sort of a, you know, I just, I'm assuming 15 here whether or not they drive the trucks home. 16 related to any expense reimbursement, things like that. 17 where I see a relevant for per diem cases for example. 18 Maybe that's That's None of those things are really, you know, relevant 19 to the question of whether or not there's a group of truck 20 drivers that were paid straight time. 21 that additional information. 22 So we didn't include If the question -- if the issue is, you know, could 23 we have excluded more facts to bolster -- to make it more of a 24 Plaintiff had first-hand personal knowledge, sure, absolutely, 25 Your Honor. 13 1 I just don't think a lot of those things are really 2 relevant to the straightforward question here of whether or not 3 people were paid straight time. 4 THE COURT: We know they were. And I accept the representation that they 5 were. 6 on this claim by himself or he gets to invite others similarly 7 situated to participate in the case with him. 8 9 I'm just trying to figure out whether Mr. Silva proceeds In paragraph 10, he swears that his personal knowledge permits him to say that he knows that other truck 10 drivers, who were hourly paid like me, regularly worked more 11 than 40 hours, but were paid straight time for the hours 12 between 40 and 50. 13 Again, he doesn't tell us -- he doesn't tell us how 14 many other drivers. 15 friend at the company. 16 He doesn't say whether it's his best And he doesn't know about anybody else or that he's 17 had conversations with a sufficient number of other drivers, a 18 sufficient number of times. 19 So I don't know about that either. And then, 20 paragraph 11, this is particularly curious because of how old 21 this case is now. 22 He says that he knows that Agave's other New Mexico 23 drivers, who were paid like him, would be interested to learn 24 about their rights and their opportunity to join this lawsuit. 25 You and I know this isn't a secret. You and I know 14 1 that he's had carte blanche to tell as many of his former 2 fellow drivers as he wanted that he was seeking to vindicate 3 his own rights in this case and would do so on their behalf if 4 they were interested. 5 And yet, despite the passage of 14 or 15 months, he 6 still is rowing this boat by himself. 7 that? 8 9 MR. PRIETO: How much do I read into So, Your Honor, that's a good question. And the -- one of the point of biggest focuses that we have in 10 drafting these notices is letting the putative class members 11 know that there isn't going to be any retaliation. 12 13 14 In fact, their notices usually have that language in bold. You know, it really does mean a lot. And I can tell you from speaking to putative class 15 members in this case, and I've been dealing almost exclusively 16 FLSA cases for 15 years now, it goes a very long way when 17 someone receives a letter from a federal judge that says it's 18 okay to participate in this case. 19 retaliation. 20 There isn't going to be A lot of folks actually tell us they want to join, 21 but they want to wait to hear about that. 22 afraid of retaliation. 23 make sure that this isn't just some, you know, thing they're 24 hearing from a lawyer. 25 One, because they're And two, because frankly, they want to They want to know that it's been at least looked at 15 1 by a court and a court has made, you know, its determination 2 that this is a lawsuit, you know, should continue as a 3 collective. 4 So, you know, a lot of these folks -- generally 5 that's what happened here is they're afraid of retaliation. 6 We're seeing that letter goes a long way, Your Honor. 7 THE COURT: Well more than half, and it's got to be 8 up to two-thirds of the 47 cases that I've dealt with, come 9 from the oil field. 10 And I'm guessing that this retaliation concern is 11 shared by everybody who's ever joined or thought about joining 12 a case like this. 13 I can not remember a case that was 15 months old 14 before the collective certification motion was filed that had 15 exactly one plaintiff when there were anywhere between 40 and 16 100. 17 So this case is unusual at least on my docket. 18 You're the specialist. 19 is unusual in that respect. 20 MR. PRIETO: 21 THE COURT: 22 MR. PRIETO: I just do this part time, but this case So do you have anything -- Your Honor, could I -Go ahead. Excuse me, I'm sorry. I just wanted to 23 add the key for the records here is the employer. 24 when I file these motions, this is my first time that I've ever 25 filed a motion for conditional cert. and I've seen a response Generally, 16 1 from you. 2 showing the opposite or anything. Absolutely not one single declaration or records I've never seen that before. 3 And I think, Your Honor, I think that's telling here. 4 You know, if this really is a case of one, if I'm defending the 5 case in all respect to Mr. Blanco, I think he's a great lawyer. 6 We've got a good relationship in this case. 7 But if I'm defending this case, Your Honor, I am 8 waving that before Your Honor like crazy. 9 evidence if there's only one, but you're not seeing that here. 10 You haven't seen a single declaration. 11 a straight time case. 12 That's great And that's because it's There's no defense. This is not an exemption case. These are interstate 13 truck drivers that know more (indiscernible) exemption in 14 Mexico. It's as clean of a case as you can get. 15 You've got a class here, Your Honor, really. And if 16 Your Honor wants to see some additional evidence of that, then 17 absolutely, we'll put a pause on this and we'll conduct some 18 discovery. 19 We're more than happy to do that, Your Honor. But 20 there is a class here and I'd hate to see folks who have been 21 paid straight time who entitled to overtime not get that 22 notice. 23 THE COURT: 24 And another point about paragraph 11, he says he 25 Got it. knows that other drivers would be interested and there's no -- 17 1 and that's a conclusion. 2 conclusory statement that he knows because he doesn't tell us 3 how he knows. 4 That's a -- I mean, it is a So he doesn't tell us, you know, when we had 5 conversations with how many people, how he was able to deduce 6 their interest in joining something like this. 7 paragraph 11 is a single sentence paragraph that at least to me 8 is conclusory. 9 So, I mean, And I don't know whether he's told any of them, any 10 of the other 40 to 100 about the pendency of this lawsuit, how 11 recently. 12 I don't know any of that. MR. PRIETO: So let me -- Your Honor, if I may just add just one 13 quick note? 14 Honor's concerns, but generally in these cases, interest is not 15 a requirement to any the additional certification. 16 mention of interest in 216(d). 17 Generally, and I understand and I agree with Your I understand that there's a minority of courts out 18 there that require out that. 19 Honor. 20 Just wanted to remind, Your And I know Your Honor's aware of that, but just -THE COURT: I wouldn't have brought it up except Mr. 21 Silva put it in its own paragraph. 22 for him put it in his own paragraph. 23 There's no Let me ask you this. So -- or whoever drafted it On this particular part of the 24 skirmish between the parties, the conclusory allegations issue, 25 you cited a total of six cases. 18 1 Four of them are from outside the 10th Circuit. 2 can find those on page 6 in the first full paragraph. 3 then, on page 7, you did cite two New Mexico -- at least 4 District of New Mexico cases. 5 You And Which is the strongest of the six cases that you say 6 I should rely on to grant your motion without any additional 7 factual showing? 8 9 MR. PRIETO: Your Honor, this is -- I'm sorry, which page of the motion? 10 THE COURT: It's on two different pages. You have 11 total of six cases cited, four on page 6 and two on page 7, 12 that speak to this issue about how conclusory can the 13 allegations be? 14 15 MR. PRIETO: Yeah, I'm looking at the brief now, Your Honor. 16 THE COURT: 17 MR. PRIETO: Okay. I'm looking at it now. And I see that 18 we've got the -- we've got attention to Hale v. Galeano, Your 19 Honor. 20 want to take a hard position on one case versus the other. 21 I haven't read that opinion in a while. THE COURT: Okay, that's fair enough. So I don't And that 22 question might not have been fair. 23 liked it if you were -- if it was Judge Prieto and Lawyer 24 Fouratt, I might not have liked it either. 25 I'm not sure I would have Let me ask you a couple questions about the 19 1 additional relief that your motion seeks, which is to declare 2 right now that we're talking about a 2 versus 3 or a 3 versus 2 3 year statute of limitation and also to decide right now that 4 opt-ins are entitled -- potential opt-ins are entitled to 5 equitable tolling. 6 My first question is do I really have to decide that 7 now? 8 the road? 9 Are those questions ripe or are they questions for down MR. PRIETO: So they're questions for down the road, 10 Your Honor, which is why we've asked that the class encompass 11 the third year. 12 Mr. Blanco at some point, if he believes that 13 willfulness is not present in this case, he'll file a motion 14 for summary judgment and that'll be a time to consider that. 15 In any tolling, any statute of limitations issue as 16 well, once the opt-in period closes, if there's an individual 17 that Mr. Blanco believes -- I'm sorry, if the Defendant 18 believes should not be in the case, I'm sure Mr. Blanco will 19 file a motion for summary judgment. 20 be considered with summary judgment, Your Honor. 21 THE COURT: So those are all issues to Okay, I promise that I won't decide that 22 prematurely, but I do have this question. 23 about equitable tolling, if that legal issue presents itself in 24 this case or elsewhere, and I note that this motion wasn't 25 filed until 11 months after the complaint itself was filed. When I'm thinking 20 1 How relevant to an equitable tolling analysis is that delay and 2 the reasons for that delay? 3 MR. PRIETO: Yes, Your Honor. So if it were just a 4 simple delay, where we just waited for no reason, then 5 absolutely, I would agree that equitable tolling is not 6 justified. 7 However, in this case, we have made every effort 8 possible to try to sell this class. 9 had phone calls and emails and have exchanged data. 10 And Mr. Blanco and I have Unfortunately, we had breakdown at (indiscernible) 11 communications. 12 a resolution, I don't think, should be held against class 13 members. 14 And that the effort by counsel to try to reach It's -- there was no delay on filing this motion 15 simply because we just weren't doing our job. 16 hard to (indiscernible) issues up. 17 THE COURT: Okay. Mr. Prieto, those were the 18 questions I had for you. 19 motion when I'm done talking with Mr. Blanco. 20 MR. PRIETO: 21 THE COURT: 22 start. We were working I'll come back to you since it's your Thank you, Your Honor. So, Mr. Blanco, same first question to Did you do the briefing or did somebody else? 23 MR. BLANCO: 24 THE COURT: 25 MR. BLANCO: Our office did, yes. Okay. Myself and an associate Robert 21 1 2 (indiscernible). THE COURT: Okay. Your sole objection as I read your 3 response is what I've hit upon about whether there is a 4 sufficient factual submission in Mr. Silva's affidavit and his 5 pay records to get us past the relatively low threshold that we 6 all understand. That's your sole objection? 7 MR. BLANCO: 8 THE COURT: Yes. Okay, Mr. Prieto just mentioned and I was 9 going to ask you anyway, it -- although it's not your burden, 10 you certainly had the right to introduce evidence of your own 11 or Agave's evidence. 12 13 14 And there wasn't any. And I found it curious. And I just want to give you a chance to address that. MR. BLANCO: Sure. Good question. So we are aware 15 of that point. 16 researched the issues and we're familiar with -- based on what 17 was submitted, we chose not to present (indiscernible) person 18 or the dispatch person. 19 Obviously, we've read the cases and we Instead, we just made the client's decision to rely 20 on the briefing is pretty direct, although it's now 21 (indiscernible) District Courts in New Mexico that 22 (indiscernible) cases is now pending -- decided. 23 If the Court would follow them to the (indiscernible) 24 direct would be the Blan Cart (phonetic) and the Stubbs case, 25 both U.S. District Courts in Kansas. 22 1 They both followed the 10th Circuit precedent 2 (indiscernible), Your Honor. 3 and relevant. So they're I think instructive 4 And when we were going through this with Mr. Siego's 5 (phonetic) affidavit in this case, he makes (indiscernible), I 6 think, those statements that were made in affidavits in Blan 7 Carte and Stubbs case were those courts. 8 9 And it's -- I completely understand. discretionary ruling by the loner. It's a Those courts and those 10 judges found those things to be insufficient (indiscernible) 11 tasks that we're proving with right now. 12 So we made the decision not to. I did and I have 13 enjoyed working with Mr. Prieto. 14 really hear them on the tolling issue. 15 he and I talked about. 16 (indiscernible) the delays because we tried to lay this out. 17 It fell apart. We've gotten along well. That's something that He and I asked before Plaintiffs Part of the reason it fell apart was 18 because we started gathering information and sharing it, we 19 realized that the number of people involved, it's lengthy. 20 I And there was an area missing in the calculation of 21 the individuals that could possibly have been affected. 22 not conceding that the pay practice violates the law for every 23 single (indiscernible) affected employee. 24 25 We're In fact, that's one of the issues that we raised in the motion. We're not capable of identifying the people that 23 1 2 they want to identify as all being similarly situated. Mr. Silva can't do that in his affidavit and he 3 didn't do that. 4 had names of these employees. 5 They didn't bring forth 100 people. They've We provided that to them. Mr. Silva knows who his co-workers are. 6 (Indiscernible) rate unfortunately reflecting those three and 7 (indiscernible) it's the same, it's huge. 8 9 10 Drivers come and go. They rarely stay around (indiscernible) six months to a year. So a lot of those folks have left Agave. 11 (Indiscernible) the older the company. 12 come forward and said, yes, this happened and yes. 13 (indiscernible) same pay facts, gave a little bit more of an 14 interest supported class, but that didn't happen. Somebody else agreed to Obviously, 15 And I think it's because in reality what we have here 16 is a single individual who was (indiscernible) highly aware and 17 enterprising as they are, the lawyer is caught (indiscernible) 18 between its class. 19 they haven't established that. 20 And we don't think it's appropriate because Now I do concede in our response that we've got or 21 the point that if your discovery in a seemingly individual 22 plaintiff case, they could establish that it would be 23 appropriate to have a directed action or a cause action. 24 could be petitioning the Court for the (indiscernible). 25 Where we are now, I don't see it. We And so, we relied 24 1 on those cases in lieu of your decision not to support my 2 response to the additional group. 3 THE COURT: One of the points that you made in the 4 opposition was that Mr. Silva drove a vacuum truck and other 5 drivers drove trucks that had a different mission. 6 therefore, he can not be similar situated to them. 7 And You guys have exchanged a lot of information and Mr. 8 Blanco, you've got a lot more information obviously because you 9 represent the company. 10 Is discovery going to show that the -- that the 11 drivers, no matter the mission of the vehicle they were 12 driving, had the same pay practice? 13 MR. BLANCO: No. There is a -- again, I don't want 14 to say something that sounds like I'm conceding, but in every 15 instance, the individual employee made inappropriate 16 (indiscernible). 17 work 40 hours, yet they paid 50 hours. 18 There are going to be employees who did not And some of that is differentiated between the jobs 19 they can do based on the routes that they are assigned. 20 discovery would show that. 21 22 23 So the It's not the case (indiscernible) both (indiscernible) assigns schedules in excess of 40 hours. Now will there be a few that would have potentially? 24 Our view there would be, but there's not going to be a 25 predominant (indiscernible) that. They're assigned jobs 25 1 (indiscernible). 2 actually only physically worked hours 30 hours in a week. 3 And some people get paid 50 hours when they THE COURT: So one concern I had about this motion is 4 you've essentially invited me to permit Mr. Prieto to engage in 5 discovery, class or collective discovery to figure out whether 6 that's the way this case should proceed. 7 And so, I'm wondering whether we're delaying the 8 inevitable. 9 long is it going to take for them to file a new motion or 10 I mean, if I give them a key to Agave's door, how submit additional proof while this one remains pending? 11 MR. BLANCO: Your Honor, I don't know, but my 12 suggestion in our brief is that the request for conditional 13 class certification be denied, just proceed with a single claim 14 to a case. 15 Again, without prejudice to Mr. Silva's 16 (indiscernible) to ask the Court that written discovery 17 (indiscernible). 18 We actually do have single pay practice. It affects 19 a large number of people, so if the Court has to be 20 appropriate, we could make petition the Court to do that. 21 There wouldn't be any need for them to do that (indiscernible) 22 if they can't prove it. 23 Now I'll leave that Mr. Prieto to decide whether he 24 thinks (indiscenrible) gather and to do that in discovery. 25 They do not object to (indiscernible). 26 1 The Court believes that it would be effective to deny 2 the conditional certification now without prejudice to each 3 (indiscernible), we (indiscernible) single claim payers with 4 what you consider. 5 If they can meet their burden to show the class would 6 be appropriate, they can bring it back to the Court and take it 7 up at that time. 8 for that. 9 I don't know how long that they would want THE COURT: So the -- if that's the route I chose, 10 denial without prejudice, I wouldn't be real patient with an 11 objection to discovery that is targeted at figuring out whether 12 there's a class. 13 14 And I would hope that that we wouldn't be seeing those objections. And you're nodding. 15 MR. BLANCO: 16 THE COURT: So -- I understand. Okay, all right. Do you agree with Mr. 17 Prieto that the questions about 3 versus 2 on the statute of 18 limitations and equitable tolling are not ripe? 19 MR. BLANCO: 20 THE COURT: 21 So, Mr. Prieto, I don't have any new questions for Yes, I agree. Okay. All right, Mr. Blanco, thank you. 22 you. 23 things I do after oral argument is I go back and I listen to 24 it, because right now, I have to be thinking about my next 25 question. I have not made a decision. I'm going to -- one of the And so, I'm not completely focused to the exclusion 27 1 of everything else on your answer. 2 And I often hear things the second time that I did 3 not hear the first time, but I want to give you a chance to 4 respond to the conversation I just had with Mr. Blanco. 5 MR. PRIETO: Thank you, Your Honor. Just briefly, 6 one thing that I would be worried to stipulate to at this point 7 is that there are truck drivers who did not work overtime. 8 9 I agree with Mr. Blanco, those individuals do not have a claim. We're fine with excluding those folks for 10 purposes of receiving notice. 11 notice. 12 There's no point in sending If Mr. Blanco's able to put together a class list of 13 folks that worked more than 40 hours and were paid straight 14 time, I think that would be fine. 15 certification, he and I at phase 2 could hash out some of the 16 merits based (indiscernible) that he's mentioned. 17 And the after conditional But I just wanted to make clear we certainly have no 18 intention of setting up notice for the folks who did not work 19 overtime. 20 21 So if that's the main issue here, I think we need to take care of that rather quickly. 22 23 THE COURT: exchanged already? 24 25 And did any of that information get MR. PRIETO: -- Not -- no, Your Honor, no. We just had 28 1 MR. BLANCO: No. 2 MR. PRIETO: -- we just had a number of individuals. 3 And I don't recall receiving names. 4 Your Honor, so the ethics rules here in Texas, and I'm assuming 5 probably the same as New Mexico, prevent me from contacting 6 folks and then asking them to join litigation. 7 no-no and that's not something that I would ever do. 8 9 That's a huge So even if we did have a name, it's not something we do (indiscernible). 10 THE COURT: 11 Texas. 12 barratry. Understood. Is -- I went to school in Is that back then, 100 years ago, that was called Is it still? 13 MR. BLANCO: 14 THE COURT: 15 MR. PRIETO: Still is. Still, okay. Yes, actually the rules have become even 16 stricter here recently. 17 bit here in Texas, so. 18 And had we received names, THE COURT: They're cracking down on that quite a Okay, all right. So, gentlemen, this is 19 what I'm going to do. 20 I don't want to promise -- I guess I could promise Friday. 21 just not going to promise this Friday, in case I don't meet 22 that time line. I'm going to try to get a decision out. I'm 23 But this has helped me -- this has helped me a lot 24 and so, I don't need to take a lot more time, because we had 25 already front loaded a bunch of the work. 29 1 And Mr. Prieto, I'm going to re-evaluate my worries 2 about whether this single declaration is sufficient. 3 I mean, I defer oftentimes to the experience of lawyers, since 4 you guys specialize in this. 5 But after reading the cases, I still had these 6 concerns. 7 was worth it. 8 9 You're -- And so, oral argument at least from my perspective And I hope it wasn't a total waste of your time. On behalf of Mr. Silva, is there anything else we should talk about before we close? 10 MR. PRIETO: 11 THE COURT: 12 Mr. Blanco, on behalf of Agave, anything else? 13 MR. BLANCO: 14 THE COURT: No, Your Honor, thank you. All right, thank you. No, Judge, thank you. All right, you can take that tie off and 15 hang it next to the other 20 that you have on the rack behind 16 you. 17 and a good week. I'm taking mine off, too, and I wish you guys a good day 18 MR. BLANCO: Thank you, Judge. 19 MR. PRIETO: Thank you, Judge. 20 THE COURT: 21 MR. BLANCO: 22 THE COURT: 23 24 25 All right, take care. Have a good day. You, too. (Proceedings concluded at 10:40 a.m.) 30 1 CERTIFICATE 2 3 4 I, Chris Hwang, court approved transcriber, certify 5 that the foregoing is a correct transcript from the official 6 electronic sound recording of the proceedings in the above- 7 entitled matter. 8 9 10 11 12 13 __________________ February 17, 2023 14 Chris Hwang Date 15 Court Reporter 16 17 18 19 20 21 22 23 24 25
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