Diaz v. Applied Machinery Corporation, No. 4:2015cv01282 - Document 65 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting in part, denying in part 49 MOTION for Class Certification and Expedited Discovery. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Diaz v. Applied Machinery Corporation Doc. 65 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ENTERED June 24, 2016 David J. Bradley, Clerk RODOLFO DIAZ, On Behalf of Himself and Others Similarly Situated, Plaintiffs, Civil Action No . H-15-1282 APPLIED MACHINERY CORP., NABORS CORPORATE SERVICES, INC ., and NABORS INDUSTRIES, INC ., Defendants. ABEL ORTEGA , et a1., on Behalf of Themselves and Al1 Others Similarly Situated, Plaintiff, Civil Action No . H-15-2674 A PPLIED MACHINERY CORP ., NABORS CORPORATE SERVICES, INC ., and NABORS INDUSTRIES, INC ., Defendants. MRMOQAHDUM OPIN ION AHn ORDER Plaintiffs, Rodolfo Diaz, and 34 other individuals, on behalf of them selves and others similarly situated, bring this action against defendants, Applied Machinery Corporation ( MAMC'), Nabors ' Corporate Services, Inc w ( collectively, nNabors/), / and Nabors Industries, recover unpaid overtime wages and other damages under the Fair Labor Standards Act (' 'FLSA/), 29 / Dockets.Justia.com U.S.C. 5 216( b). Pending before the court is Plaintiffs' Partially Opposed Motion for Class Certification ( Docket Entry No. Expedited Discovery After considering plaintiffs' motion, Defendants Nabors Corporate Services, Incw and Nabors Industries, Inc .'s Response Opposition to Plaintiffs' Partially Opposed Motion for Class Certification & Expedited Discovery ( Docket Entry Plaintiff's Reply in Support of Plaintiffs' Partially Opposed Motion for Class Certification ( Docket Entry No. Expedited Discovery and the applicable law, the court concludes that the pending motion should be granted as to a11 current and former nrig welders' who were ' jointly employed by Applied Machinery Corporation and by Nabors Corporate Services, Inc., and/or by Nabors Industries, at App lied Machinery Corporation's Conroe, Texas location w ithin the three-year period immediately preceding entry of this Memorandum Opinion and Order. 1. A. Factual A llecations and Procedural Backqround Factual A llegations Plaintiffs allege that in June 2013, Nabors hired AMC to help build drilling rigs for its fleetx Plaintiffs allege that during the relevant statutory period the defendants hired them and others work as welders, that they and other welders typically worked excess forty ( 40) hours week, but were not paid overtime l plaintiffs' Consolidated Complaint, Docket Entry No . 28, % - 2- wages .z Plaintiffs allege that instead of paying overtime wages, defendants paid them and other welders at their normal day hourly-rates .? Plaintiffs allege that ( a)l1 rig welders employed by AMC and Nabors are similarly situated to ( themq because they ( 1) have similar job duties; ( regularly work in excess of forty 2) hours per week; ( are not paid overtime for the hours 3) they work in excess of forty per week as required by 29 U . C . 5 207 ( 1) and ( are entitled to recover their S. a)( 4) unpaid overtime wages, liquidated damages and attorneys' fees and costs from AMC and Nabors pursuant to 29 U .S.C . 5 216 ( b).4 B. Procedural Background On May 13, 2015, plaintiff, Rodolfo Diaz, filed this action against AMC alleging willful violation of the FLSA X On September 14, 2015, Abel Ortega and 33 other plaintiffs filed suit against AMC a separate action, i .e ., Civil Action No . 4:15-cv-2674, also alleging violations of the FLSA .6 On October 20, 2015, AMC answered the original complaint filed this actionx On November 20, 2015, the 2Id . at 6 % 16 and 8 % 3 . at 8 %% 30, 33 and 9 % 34. Id 4Id . at 9 % 39 . spkaintiff's Original Complaint , Docket Entry 6original Complaint and Motion for Collective Action/certification, Docket Entry No. 1 in Civil Action No . 4:15cv-2674. V Applied Machinery Corporation's Original Answer , Docket Entry 20. two cases were consolidated ,8 and on January 8, 2016, Plaintiffs' consolidated Complaint was filed joining Nabors Corporate Services, Incw and Nabors Industries, Inc. as defendantsx 2016, the Nabors defendants answered On February plaintiffs' consolidated complaintx o on April 22, 2016, the plaintiffs and AMC stipulated to conditional class certification and noticex l On May 5, 2016, the parties filed a Joint Motion to Withdraw Plaintiffs' Stipulation re: Conditional Certification and Noticex z The next day the court held a hearing at which the parties' joint motion to withdraw conditional certification and notice was granted, and plaintiffs were directed to file a motion for conditional class certification within days.l On May 16, 2016, plaintiff filed the pending motion for class 3 certification and following class : expedited discovery seeking certify the 'Al1 current and former 'rig welders' who worked ' 8Hearing Minutes and Order, Docket Entry No . 24 C' No. H-15CA 2674 consolidated into CA No . H-15-12822 . H-15-1282 will be the lead case.'). ' gplaintiffs' Consolidated Complaint, Docket Entry No . lo Nabors Corporate Services, Inc . and Nabors Industries, Inc .'s Answer to Plaintiffs' Consolidated Complaint , Docket Entry No . 35 . ll stipulation Re: Conditional Certification and Notice, Docket Entry No. 39, p. 2 % 1 ( uplaintiffs and Defendant Applied Machinery Corporation agree to conditional certification and issuance of notice to a1l welders, fitters, blasters, and painters who provided services to Applied Machinery Corporation in the last 3 years.v). l zDefendants' Nabors Corporate Services , Inc., Nabors Industries, Inc . & Applied Machinery Corporation's Joint Motion to Withdraw Plaintiffs' Stipulation RE : Conditional Certification and Notice, Docket Entry No . 46 . H Hearing Minutes and Order , Docket Entry No . 47 . - 4- for Applied Machinery Corporation and/or Nabors Industries, Incw its parents, subsidiaries or affiliates during the last three years ./ 4 /' Plaintiff's motion asks the court to ( 1) conditionally certify this case g as a) collective action pursuant to 29 U.S. 5 2l6( C. b); ( authorize the 2) issuance ( 3) of order notice to Defendants potential to class produce members; verified and contact information for a1l urig welders' who worked for Applied ' Machinery Corporation and/or Nabors Industries, Inc., its parents, subsidiaries or affiliates during the last three years so that notice may be timely implementedx s Attached thereto is a proposed nNotice Applied Machinery and/or Nabors Industries Rig Welders z/l 6 June 2016, defendant filed response plaintiff's motion for class certificationx ? opposing Nabors argues that plaintiffs motion for conditional class certification should be denied because plaintiffs have aggrieved individuals exist; failed show that other that the putative class members are similarly situated; and ( that other aggrieved individuals want to 3) join this collective actionx 8 Nabors also argues that nconditional certification inappropriate this case as the determination n plaintiff's Partially Opposed Motion for Class Certification & Expedited Discovery ( nMotion for Certification/), Docket Entry / No . 49, p . 3 . 15yd . at l6 Exhibit I to Motion for 49-9 . U Defendants Nabors Corporate Services, Inc ., and Nabors Industries, Inc .'s Response in Opposition to Plaintiffs' Partially Opposed Motion for Class Certification & Expedited Discovery ( nDefendants' Responsef), Docket Entry No. 59. ' l8 . at pp . 7-13 . Id an employment relationship with Nabors require highly individualized analysis of each plaintiff's circumstances./lg Nabors / contends that ' sqome rig welders are employed by Nabors, but many 'E others, like the Plaintiffs, are independent contractors .'zo ' On June 13, 2016, plaintiffs filed a reply in which they argue that Nabors' arguments are without merit and they urge the court to grant their Motion for certification .z l II . Aopiicablp Law and Standard of Review The FLSA requires covered employers pay non-exempt employees for hours worked in excess of defined maximum hours, 207( a), and allows employees to sue their employers for violation of its hour and wage provisions . See 29 U . .C . 55 215S An employee may sue his employer under the FLSA on 'behalf of ' himself and other employees sim ilarly situated . No emp loyee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.' 29 U.S. 5 216( ' C. b). Although 5 216( neither provides for court-authorized notice nor b) l9gd r at 20 . Id ( citing Exhibit A, Affidavit of Randy Lagrimini ( nLagrimini Affidavit'), Docket Entry No. 59-1, % 4, and ' Declaration of Joe A. Schelebo ( uschelebo Declaration'), Docket ' Entry No. 59-2, % 2). z lplaintiffs' Reply in Support of Plaintiffs' Partially Opposed Motion for Class Certification & Expedited Discovery ( nplaintiff's Reply'), Docket Entry No. 61. ' - 6- requires certification for a representative action under the FLSA , certification has been recogn ized as a useful case managem ent tool for district courts appropriate employ Hoffmann-La Roche Inc. v. Sperlinc, collective action allows cases. 482, 486 ( 1989) plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources . judicial system benefits efficient resolution one proceeding of common issues of 1aw and fact arising from the same alleged When activityp'). ' plaintiff seeks certification to bring a collective action on behalf of others and asks the court to approve a notice potential plaintiffs, court has discretion approve the collective action and facilitate notice to potential plaintiffs . Soerlinc, Ct. at 486-87 ( ADEA actionliz Villatoro v. Kim Son z Restaurant, L .P., 286 Supp. ( S.D. Tex. 2003) ( FLSA action). The court also has discretion to modify the proposed class definition if is Communications, Inc., overly 404 broad . F.3d ( recognizing the court's power 930, See 931-32 Baldridge ( 5th v. SBC 2005) nlimit the scope' of a proposed ' 2 2sperlinq was an action brought under the A ge Discrimination in Employment Act IA 'ADEA/I, but it is informative here because the / ADEA explicitly incorporates Section 216( b) of the FLSA to also provide for an uopt-in' class action procedure for similarly' situated employees. 110 S. Ct. at 486 ( nWe hold that district courts have discretion, in appropriate cases, to implement 29 U. C. 5 216( S. b) ( 1982 ed.), as incorporated by 29 U .S.C. 5 626( b) ( 1982 ed.), in ADEA actions by facilitating notice to potential plaintiffs.'). ' class in a FLSA action). See also Heec v . Adams Harris, Inc., 907 Supp. 2d 856, 861 ( D. Tex. 2012) ( court also l S. nA has the power to modify an FLSA collective action definition on its own' ' proposed class definition does not encompass situated employees.r/ /). Because collective only the similarly actions may reduce litigation costs for the individual plaintiffs and create judicial efficiency, courts favor collective actions when common issues of 1aw and fact arise from the same alleged activity . Sperlinq , 11O S. 486-87 . The term 'similarly situated' is not defined ' ' See, e .c ., 29 U .S .C . the FLSA . The to set specific standard for courts apply when considering whether employees are sufficiently similar support maintenance representative action . See Mooney v . A ramco Services Co ., 54 F .3d 1207, 1995) ( expressly declining to decide which of these two analyses is appropriate), overruled on other arounds bv Desert Palace, Inc. v. Costa, 2148 ( 2003). 3 2 Courts faced with this issue typically apply one of two standards, i.e ., two-step analysis described F. R.D. Lusardi v . Xerox Corp w ( N . 1987), or the uspurious class action' analysis D. J. ' 23 Moonev was an action brought under the ADEA , but it is informative here because the A DEA explicitly incorporates Section 216( b) of the FLSA to also provide for an 'opt-in' class action ' ' procedure for similarly-situated employees . See Mooney, 54 F.3d at 1212 . - 8- described in Shushan v . University of Colorado, ( Colo. 1990). D. F .R .D . 2 63 See Moonev, 54 F.3d at 1213-16. The Lusardi analysis proceeds two stages: decertification stage . stage, followed by Cinqular Wireless LLC, 553 F.3d 913, 915-16 n. ( citations omitted). notice See Sandoz v . ( 5th 2008) At the notice stage the court makes a decision , usually based solely on the pleadings and any affidavits that have been submitted, whether conditionally and give notice Moonev, 54 F.3d at 1213-14 . to certify the class potential class members. See The decision is made nusing a fairly lenient standard' because the court often has m inimal evidence at ' this stage of the litigation . uappear Id . at 1214 . Courts, fact, require nothing more than substantial allegations that the putative class members were together the victim s of a single decision, policy or plan.' ' Id. ( quoting Soerlina v. Hoffman-La Roche, Inc., 118 F. R.D. 392, 407 ( N.J. 1988)). Thus, D. notice stage analysis typically results certification of a representative class . Id . conditional A fter conditional certification the nputative class members are given notice and the opportunity Aopt-in .'' Id . ' After notice issues the action proceeds as a representative action . The second 'decertification ' stage stage' ' the Id . Lusardi typically approach precipitated the by defendant filing a motion to decertify after the opt-in period has concluded and discovery is largely complete . Id . 'At this stage, ' the court has much more information on wh ich to base its decision, and factual determination makes question .' ' Id . the court finds made up of sim ilarly situated persons, on the similarly situated claimants are no longer decertifies the class and dismisses the opt-in plaintiffs without prejudice. If the class is still similarly situated, the court allows the collective action proceed . Id . The Shushan analysis follows a procedure that is similar to the class certification procedure used under Federal Rule of Civil Procedure 23 (' 'Rule 23'). ' Shushan espouses the view that 5 16( of the Fair Labor b) Standards Act ( FLSA) merely breathes new life into the so-called ' 'spurious' class action procedure previously ' eliminated from E Rule 235. Building on this foundation, the court determined that Congress did not intend to create a completely separate class action structure for the FLSA and A DEA context, but merely desired to limit the availability of Rule 23 class action relief under either Act . In application , the court determ ined that Congress intended the ' 'similarly situated' inquiry to be ' coextensive with Rule 23 class certification . In other words, the court looks at 'numerosity,' ncomm onality,' ' ' ' ntypicality' and uadequacy of representation' to ' ' determ ine whether a class should be certified . Under this methodology, the primary distinction between an . . E FLSA) representative action and a E Rule 23q class action is that persons who do not elect to opt-in to the . ( FLSA J representative action are not bound by its results. In contrast, Rule 23 class members becom e party to the litigation through no action of their own, and are bound by its results. Moonev, F.3d at 1214. While the Fifth Circuit has explicitly left open the question of whether the Lusardi approach, the Shushan approach , some third approach should be used in determining whether employees are sufficiently sim ilar to support maintenance of action, see Moonev, representative F.3d at 1216, because Shushan applies the analysis used for class actions brought under Rule 23, and because the Fifth Circuit has described Rule uopt out' procedure as ' fundamentally and irreconcilably different from 5 216 ( b)'s 'opt in' ' ' procedure, see Lachapelle v . Owens-lllinois, Inc ., 513 F .2d 286, 288 1975) ( per curiam), most courts in this district follow the Lu sardi approach . See Sandoz, 553 F .3d at 915 See also Tolentino v . C & J Srec-Rent Services Inc w F. Supp . 2d 642, 646 ( S.D. Tex. 2010) ( collecting cases). This court, therefore, also follow the Lusardi approach . At this initial state of the Lusardi approach , a plaintiff need only make a m inimum showing notice to potential class members . persuade the court issue Mooneyr 54 F.3d at 1214 . In the absence of Fifth Circuit guidance on the appropriate test use at this stage of the analysis, courts are split the appropriate elements to consider . Some courts use three elements, requiring the plaintiff to show that : there is reasonable basis for crediting the assertion that aggrieved individuals exist ; those aggrieved individuals are sim ilarly situated plaintiff relevant respects given claim s and defenses asserted; and ( those individuals want to opt 3) See, e .c ., Heec, 907 F. Supp . the the lawsuit. Tolentino, 716 F . Supp . at 649-53. Other courts, however, have rejected the third element aS non-statutory . See, e .G ., Drever v . Baker Huqhes Oilfield Operations, Inc., Civ il Action No . 4:08-cv-1212, 2008 WL 5204149, at ( D. Tex. Dec. 11, 2008) S. Because the third element is not statutorily required and because requiring evidence putative class members who are willing to join a collective action before an appropriate class has even been defined conflicts with the Suprem e Court's directive that the FLSA be liberally construed to effect its purposes, see Tonv and Susan Alam o Foundation v . Secretarv of - Labor, 105 S . 1953, 1959 ( 1985), the court agrees that plaintiff need not present evidence of the third element at this stage of the litigation . 111 . Analvsis A. Class Certification Nabors urges the court deny pending m otion conditional class certification because N pllaintiffs' E 'E mlotion fails to provide some factual basis for the existence of wide policy or p ractice as to Nabors that violated class18W '24 ' Asserting that Ml pllaintiffs are independent contractors,'z Nabors 's argues that ' pllaintiffs have only provided unsubstantiated, 'l conclusory declarations and a handful of paystubs as evidence .'z '6 M Defendants' Response, Docket Entry No . 25 . at 2 ( Id citing Exhibit A, Lagrimini Affidavit, Docket Entry No . 59-1, % 4, and Exhibit B , Schelebo Declaration , Docket Entry No. 59-2, % 2). 2 6:d at Whether There Is a Reasonab le Basis for Creditina A ssertion that Other Aacrieved Individuals Exist To satisfy the first element under the Lusardi analysis plaintiff need only show that there reasonab le basis believing that other aggrieved individuals exist . Supp . declarations 862. of Attached Heea, 907 plaintiffs' motion are four of the plaintiffs named Plaintiffs' Consolidated Complaint ( Docket Entry No. 28): Adolfo Diaz, Rodrigo Campos, Abraham Francisco Puga-Reyna , and Ricardo Colmenares. A11 these declarants state that they were employed as rig welders jointly by AMC, Nabors Corporate Services, Inc., and/or Nabors Industries, Inc w that they were paid at an hourly rate, that despite routinely working more than forty hours per week they did not receive overtime at one and half times their regular hourly rates, and that based on their observations, other welders who worked for the defendants were paid the same way, i.e ., they were paid an hourly rate, denied overtime and they learned about this lawsuit , many of them would be interested joining. 7 Also attached to plaintiffs' motion are copies of twelve z Diaz's pay stubs showing only that he worked over forty 2 See Declaration of Rodolfo Diaz (' 7 %Diaz Declarationv), Exhibit A to Motion for Certification , Docket Entry No . 49-1: Declaration of Rodrigo Campos (A 'campos Declaration'), Exhibit B to Motion for ' Certification , Docket Entry No . 49-2 ) Declaration of Abraham Francisco Puga-Reyna ( npuga-Reyna Declaration'), Exhibit C to ' Motion for Certification, Docket Entry No . 49-37 and Declaration of Ricardo Colmenares ( ucolmenares Declaration'), Exhibit L to Motion / for Certification , Docket Entry No . 49-12 . hours per week, but also that he was paid the same hourly rate for al1 the hours that he worked .2 8 Nabors argues that the evidence attached to plaintiffs' Motion for Certification does provide reasonable basis that similarly aggrieved individuals exist .29 citing Shanks v . Carrizo 0i1 & Gas, Inc., Civil A ction No . 4 :12-cv-3355, 2013 WL 6564636, at 2013), and Simmons v. T-Mobile USA, ( S.D. Tex. December Inc w Civil Action No . 4:06-cv-1820, 2007 WL 210008, *4 ( S.D. Tex. 2007), Nabors argues that declarants state that ' bqased on my observations, the 'l other rig welders that worked for Defendants were paid the same way I was paid ( i.e., they were denied overtime pay at one and one-half times their regular rates for hours worked over forty in a workweekl.' None of the ' declarants describe what they observed , who they observed , or the facts that 1ed them to the conclusion that they were paid similarly . In short, the declarations are wholly inadequate as to providing the necessary support as to why a class should be certified against Nabors . Plaintiff's Motion should be denied as Plaintiffs fail to show that there is a reasonab le basis that aggrieved individuals exist .30 Nabors' reliance on Shanks and Simmons the evidence offered m isplaced because the existence of other aggrieved individuals support of applications conditional certification that were denied in those cases was far less than the evidence offered here . In Shanks, 2013 WL 6564636, 28 see Exhibit D to Motion for Certification , No . 49-4 . z gDefendants' Response, Docket Entry 3 (d . 0 +5, Docket Entry pp . 7-10. conditional certification was denied because the plaintiff, worker in one oilfield, subm itted only his own affidavit in support of proposed class comprised throughout the country . employees from oilfields In Simmons, 2007 WL 210008, the court held that the plaintiff had produced evidence that other aggrieved individuals exist, but that the evidence was largely about retail sales representatives, not about the job category which plaintiff was seeking conditional supervisory retail sales representative . stated that certification , i.e ., Nevertheless, the court would nassume without deciding that Simm ons has established Aa reasonable basis for crediting the assertions that aggrieved individuals exist .'' Id . at ' Plaintiffs reply that the existence other aggrieved individuals is evidenced not only by the four declarations attached to their motion but also by the fifty individuals who are either named plaintiffs or who have filed consents join this case. 1 3 The fifty individuals plaintiffs reference appear the plaintiffs named in the Consolidated Comp laint filed on January 8, 2016,3 and the 15 individuals on whose behalf consent forms have 2 been filed . The Clerk's Docket List shows that in September and M plaintiffs' Replyr Docket Entry No . H plaintiffs' Consolidated Complaint , Docket Entry No . 28 . The 35 named p laintiffs are the individual plaintiff originally named in this action ( Rodolfo Diaz), and the 34 plaintiffs originally named in Civil Action No . 4 :15-cv-2674 which was dism issed at the hearing held on May 6, 2016. See Hearing Minutes, Docket Entry No . 47 . October of 2015 consents to join this action were filed for six individuals: Joel Hernandez ( Docket Hernandez ( Docket Entry No. Entry Alberto Ayala, ( Docket ( Docket Entry ( Docket Entry No. ( Docket Entry No. 21). Arnoldo Eleazar Hernandez, Eliazar Hernandez, Entry No. and Guadalupe Vega The Clerk's Docket List also shows that since plaintiffs filed their Motion for Certification, consents to join this case have been filed for an additional nine individuals: Alejandro Sanchez ( Docket Entry Carlos Morales ( Docket Entry No. 52); Juan Abadia ( Docket Entry No. 53); Juan Najer ( Docket Entry 54); Marin Sierra ( Docket Entry Omar Penaloza ( Docket Entry No. 56); Roberto Lara ( Docket Entry No. Walter Hernandez ( Docket Entry ( Docket Entry No. 64). and Ignacio Hernandez By submitting the declaration the original plaintiff, Diaz, and the declarations of three individuals who were plaintiffs plaintiffs the consolidated case and are now named this action, i .e., Campos, Puga-Reyna, and Colmenares, and by pointing to consents filed on behalf of an additional fifteen individuals, plaintiffs have established reasonable basis for crediting their assertions not only that other aggrieved individuals exist, but also individuals want to join this lawsuit. that other aggrieved Whether Other Aaarieved Situated to Plaintiff To satisfy the second Individuals element the similarly situated persons Similarlv Lusardi plaintiff must demonstrate a reasonable basis class Are analysis believing that a exists. See Heec , 907 ( citing Lima v. International Catastrophe Supp . Solutions, Inc., 493 Supp . 2d 793, 798 ( E.D. La. 2007)). nPotential class members are considered similarly situated to the nam ed plaintiff they are 'sim ilarly situated requirements sim ilarly and provisions.r' ' Id . ( quoting situated Rvan terms of payment te rm s v. Staff Care, Incw 497 Supp . 2d 820, 825 ( N.D. Tex. 2007) ( citing Dyback v. State of Florida Department of Corrections, 1991)). collectively F.2d 1562, 1567-68 ( 11th court may deny plaintiffs' right if the action arises personal to the plaintiff, and from proceed circumstances purely from any generally applicable rule, policy, or practice.f' Id. ( ' quoting England v . New Centurv Financial Coro w 370 F. Supp. 2d 504, 5O7 ( .D. La. 2005)). M Nabors argues that the Motion denied because ' pllaintiffs have 'E Certification should be identified class individuals that can properly be considered similarly situated ./33 / Citing affidavits of Nabors employees, Randy Lagrim ini, Director of Capital Equipment Sourcing for Nabors Corporate Services, Inc w and Schelebo , Operations Superintendent M Defendants' Response, Docket Entry the Operations Department at Nabors International, Inc w the Nabors defendants contend that Plaintiffs propose an overly broad class of ' alll Al current and former Arig welders' who worked for Applied Machinery Corporation and/or Nabors Industries, Incw its parents, subsidiaries or affiliates during the last three years ( emphasis addedl.' ' Plaintiffs' proposed class would potentially include al1 rig welders, regardless of classification as an employee or independent contractor, exempt status, and work location , for b0th Nabors and AMC . Nabors currently operates in 18 countries, and utilizes rig welders as independent contractors and employees in numerous locations. Nabors classifies workers as emp loyees or independent contractors based on factors such as the nature and duration of the project or work, the level of supervision Nabors provides , and the needs of the company, among other factors . Additionally , rig welders classified as employees of Nabors are subject to different policies, procedures, and pay practices, as compared to independent contractors. Plaintiffs were a11 classified as independent contractors and worked at AMC 'S Conroe, Texas location . None of the Plaintiffs who have joined this suit were classified as employees of AMC , much less classified as emp loyees of Nabors . Further, there is no evidence that Plaintiffs worked at any locations owned or operated by Nabors, nor is there evidence that any of the Plaintiffs worked on projects other than the Nabors/AMc project. Despite solely relying upon four conclusory declarations, Plaintiffs fail to address any of these critical specifics about the other current and former individuals whom they wish to include in a collective action or why the class should be broader than one lim ited to the AMC yard in question for the specific Nabors project. 4 3 Lagrim ini states in relevant part : Nabors Industries, Incw and Nabors Corporate Services, Incw and their subsidiaries and affiliates ( collectively, 'Nabors') ' ' operate approximately one hundred forty-six ( 146) land drilling rigs in fourteen ( 14) countries and operate thirteen ( 13) offshore rigs in seven ( 7) 3 . at 10-11. 4Id - 18- countries . In total, Nabors currently operates in eighteen (18) different countries. Many different types of workers are required to operate the onshore and offshore rigs, including rig welders. Rig welders provide services in many different countries . Some rig welders are employed by Nabors . As employees, they would receive paychecks from Nabors, which would include overtime pay, and they would be subject to the policies and procedures of Nabors as well as the policies and procedures of the specific rig and/or location in which they worked . Nabors also utilizes many rig welders on a contract basis. Rig welders who work as independent contractors are used for specific projects. Whether a worker is classified as an independent contractor or employee depends on factors such as the nature and duration of the project or workr the level of supervision Nabors providesr and the needs of the company, among other factors .3s Schelebo states in relevant part : In the fall of 2013, I worked as the Operations Superintendent for the Rig Operations Department at Nabors . From the fall of 2013 through the summ er of 2015, I was assigned to work at Applied Machinery Corporation's I UAMC') ' Conroe, Texas facility . AMC agreed to provide repair, refurbishment, and maintenance services for 9 of Nabors's rigs. A s the Operations Superintendent for the Rig Operations Department at Nabors, I was responsible for ensuring that the rigs were repaired and refurbished as needed . There were many workers at AMC'S Conroe, Texas facility who were working on Nabors's rigs . Many of the workers were not employed by Nabors . For example none of the rig welders were employees of Nabors. I did not have regular contact with many of the rig welders . The rig welders I spoke to regularly were MLagrimini Affidavit , Exhibit Docket Entry No . 59-1, %% 2-4. Defendants' Response, Juan Hernandez, Sr . and Juan Hernandez, Jr . ( collectively, the nHernandezes'). I would provide / information to the Hernandezes about the scope of the work that needed to be completed . The Hernandezes would decide how many rig welders would be needed, they would find the rig welders, and they would choose which reg welders to use . It was my understanding that the Hernandezes were not employees of Nabors or AMC . Typically, rig welders would provide their own trucks and their own personal welding equipment and supplies . .36 Nabors argues that the evidence provided by Lagrimini and Schelebo shows that ' cqonditional certification 'l inappropriate in the case at hand g because pjlaintiffs' proposed class seeks a11 current and form er rig welders, regardless of the classification or location .' R Nabors argues that '' ( pqlaintiffs' overly broad class size would include rig welders employed by Nabors and others utilized by Nabors as independent contractors . The class size would also encompass the rig welders utilized by Nabors in 18 countries, working in a myriad of conditions and on a variety of different projects. Moreover, the putative class size would include uNabors Industries, Inc w parents, subsidiaries or affiliates./3 /8 its Citing Tucker v . Labor Leasina, Inc., 872 F.supp. 941, 948 ( M.D. Fla. 1994), and Harper v. Lovett's Buffet, Incw F. R.D. 358, 363 ( . Ala. 1999), Nabors argues that courts often refuse to M D. M schelebo Declaration, Exhibit B Docket Entry No . 59-2, 1% 1-4. M Defendants' Response, Docket Entry 3 Id . at 8 - 20- Defendants' Response , authorize notices to putative class encompassing multiple locations when practices at only one location are in evidence .3g The evidence attached to plaintiffs' Motion for Certification shows that at least four individuals ( Diaz, Campos, Puga-Reyna, and Colmenares) worked for the defendants in the same position, i.e., as rig welders, at the same location, and were a11 paid the same way, i.e ., at an hourly rate , and were not paid overtime for worked performed excess of forty hours per week .4 0 Evidence attached to Nabors' response including b0th the Schelebo Declaration and the responses Nabors' interrogatories plaintiffs worked at AMC'S location show that a1l of the Conroe, Texas .4 l Nabors does not dispute that plaintiffs and other rig welders working at AMC'S Conroe , Texas, location were similarly situated in terms of job requirements, that they were al1 paid an hourly-rate, that they regularly worked more than forty hours a week, and that they were paid overtime . plaintiffs' were not subject 3 9zd Instead, Nabors argues that the FLSA'S overtime requirements at 40 see Exhibits A-C and L to Motion for Certification , Diaz Declaration , Campos Declaration , Puga-Reyna Declaration, and Colmenares Declaration, Docket Entry Nos. 49-1 through 49-3, and 49-12 . 41 see Schelebo Declaration, Exhibit B to Defendants' Response , Docket Entry No . 59-2, %% 1-37 Exhibits E-H to Defendants' Response, Objections & Answers to Defendants' Nabors Corporate Services, Inc w and Nabors Industries, Inc . First Set of Interrogatories for Rodolfo Diaz, Rodrigo Campos, Abraham PugaReyna, and Ricardo Colmenares, Docket Entry Nos. 59-5 through 59-8, respectively . because they were not Nabors' independent contractors . employees The court and were , instead, not persuaded by this argument because exemptions are merits-based defenses FLSA claims that courts in this district typically hold to be irrelevant at this initial, notice stage of the case . See, e .c ., Drever, 2008 WL 5204149, at *2 ( rejecting defendant's argument that the possible application multiple FLSA exemptions counseled against conditional certification ubecause exemptions are merits-based defenses to an FLSA claim' that ' ncannot defeat conditional certificationv); Foraker v. Hichpoint Southwest, Services, L.P., Civil Action No. 4:06-cv-1856, 2006 WL 2585047, at *4 ( S.D. Tex. Sept. 7, 2006) ( rejecting the defendant's argument that conditional certification should be denied because plaintiffs were supervisors and exempt under the executive exemption as an argument that 'goes ' the m erits of whether the emp loyees are exempt from overtime pay and is not a persuasive basis to deny notice' '). Because Nabors adm its AMC location treating al1 rig welders working at Conroe, Texas, as exempt independent contractors, and because there is no evidence now before the court showing that the day-to-day job duties location differ substantially, court rig welders at that concludes that potential class members are similarly situated in terms of 50th job requirements and payment provisions . before the court shows that there Because the evidence now reasonable basis for crediting plaintiffs' assertion that other aggrieved individuals exist and that other aggrieved individuals are similarly situated to plaintiffs provisions, term s b0th requirements and payment court concludes that plaintiffs have provided sufficient evidence to satisfy the first stage Lusardi analysis, and that this matter should be conditionally certified as a collective action under 29 5 216( b). The central issue presented by the plaintiffs' Motion for Certification and Nabors' opposition thereto is whether plaintiffs have demonstrated that common policy or plan extends beyond the AMC location a11 Texas countries. Nabors multiple locations Conroe, different See Rosario v . Valentine Avenue Discount Store, Co ., Inc., 828 F. Supp. 2d 508, 516 ( E.D. . N Y. The current record does extend certification provide sufficient basis to any locations beyond AMC'S Conroe , Texas location . The only evidence the record that rig welders AMC'S Conroe, Texas location routinely worked m ore than forty hours per week without being paid overtime . ' 'FLSA violations at one company's multiple locations generally sufficient support company-wide without more, notice.' ' Rueda v . Tecon Services, Inc ., Civil Action No . 4:1O-cv-4937, 2011 WL 2566072, at ( S.D. Tex. June 28, 2011). See also Harper, 185 F.R. D. ( finding that the plaintiffs failed show that employees working at locations other than the named p laintiffs' location were similarly situated); Tucker, not F.supp . suggest that ngeographic commonality 948 ( same). That necessary to meet the Asimilarly situated' requirement for FLSA collective action ; instead the focus is on whether the employees were impacted by a common policy .' ' Action Varaas v . Richardson Trident Cc w Civil 4:09-cv-1674, 2010 WL 730155, at *6 ( S.D.TeX. Feb. 2010) ( collecting cases). If there is reasonable basis conclude that the same policy applies to multiple locations of a single company, certification is appropriate . See Blake v . Colonia Savings, F . ., Civil Action No . 4 :04-cv-0944, 2004 WL 1925535, at A ( D. S. TeX. Aug. 2004) ( approving notice to loan officers the defendant's Dallas office and those in remote locations based on evidence that the company's policies extended to The present record, however, contains no locations). evidence that the complained-of policies or practices at AMC'S Conroe, Texas location are policies or practices that extended to any other location operated by AMC or by any Nabors entity. extent the plaintiffs seek collective-action certification for locations other than AMC'S Conroe, Texas, location, that request will be denied . B. Request for Expedited Discovery and Notice to Class Momners Plaintiffs' proposed notice is attached as Exhibit I to their Motion for Certification .4 Plaintiffs request that their counsel z be allowed to send the proposed notice to potential class members by first class mail, and that the court fix a postmark deadline for the return of consent form s of sixty days from the date the notices W Docket Entry No . 49-9. - 24- are mai1ed .4 3 plaintiffs that request that information for Corporation notice may defendants be tim ely produce rig welders who worked and/or Nabors implemented, verified contact App lied Machinery Industriesz parents, three years.4 4 subsidiaries or Nabors responds that they should be compelled provide information regarding any individual who provided services to defendants outside of the potential statutory period, should be compelled produce unnecessary they personal information , and they need more than a mere ten days to provide the information on the putative class members, excessive ; and consent form s must be filed with plaintiffs' proposed notice material aspects. ninety days to opt- defective If the court conditionally certifies court; several class, Nabors urges the court to order the parties to confer and subm it a proposed agreed notice .4 5 Plaintiffs' reply that ( tlhe proposed form is substantially similar to a notice agreed upon by Nabors' counsel in a case currently pending before Judge Nancy Atlasr in which the undersigned is the counsel for plaintiffs, Sester v . Burrow Global Services, LLC, Civil Action No . 4 :15-cv03346. It is fair and balanced . It is also fairly understandable to a layman . Hence Plaintiffs' notice is proper .4 6 HMotion for Certification , Docket Entry No . 4 . at 12-13. 4Id O Defendants' Response, Docket Entry No . 4 6plaintiffs' Reply , Docket Entry No . 6l, p . pp . 20-23. Reauests for Information for Individuals Who Provided Services Outside of the Potential Statutorv Period Nabors objects to plaintiffs' request information potential class members who provided services to defendants at any time during the last three years as too broad . Citing Quintanilla v. A & R Demolition , Inc w Civil Action No . 4:O4-cv-1965, 2005 WL 2095104, ( S.D. Tex. August 2005', Nabors argues that / ' bqased on the statute of limitations, 'E have recognized that class certification is appropriately lim ited to workers employed by the defendant up to three years before notice is approved by the COkrt. e4 l ? Nabors correct class certification appropriately limited to workers employed by defendants up to three years before this court approves notice. Jolentino, Supp . 2d at 654. An FLSA cause of action Ar ay be commenced within 'a two years after the cause action accrued cause of action arising out except may be commenced within three years after the cause of action accrued .' ' 5 255 ( a). nImportantlyr the A limitations period is not tolled with respect other potential plaintiffs unless and until they opt to the case.#' Id. ( ' quoting Quintanilla v. à & R Demolitina, Incw Civil Action No . 4 :04-cv-1965, 2005 WL 2095104, Aug. *16 Tex . 2005)). nBased on the statute of limitations, courts have recognized that class certification appropriate ly limited U Defendants' Response, Docket Entry No . - 26- workers employed by the defendant up is approved by the court .' ' Id . three years before notice Thus, the notice period must commence three years prior to the court's approval of this notice . Verified Personal Contact Information Known Addresses) Within 90 Davs ( Names and Last Citing the proposed order attached to plaintiffs' Motion for Certification, Nabors objects to plaintiffs' request for personal contact information for potential class members. Nabors argues : Plaintiffs' Motion states that the order they are seeking would require the production of 'verified contact ' information ( i.e., names and last known addressesl.' ' Plaintiffs' proposed order, howeverr requests far more invasive information than what is requested in the Motion . The proposed order requests within ten ( 10) days of its entry, that Defendants produce ' 1) Full names; A( ( Email addresses; ( Last known mailing addresses; 2) 3) ( Social Security numbers; ( A11 telephone numbers; 4) 5) (6) Dates of employment; ( Location l of employment; 7) s) and ( Nature of employment. 8 8) 4 Nabors argues that plaintiffs' requests for personal inform ation beyond names and last known addresses should be denied due privacy concerns and because such information is not needed to send notice putative class members. Nabors also argues that plaintiffs' demand for the personal information of putative class members within ten days is overly burdensome, and that they should have at least thirty ( 30) days to accomplish this task. 4 (d 8( at - 27- Plaintiffs' requests full names, email addresses, last known mailing addresses, telephone numbers, and dates of employment unduly burdensome are invasive, and are appropriate and necessary to further the broad rem edial purposes of the FLSA providing notice to b0th current and former employees . Other courts routinely approve such requests when , as here, they are likely to further broad remedial purposes of the FLSA by facilitating notice, and disapprove such requests only when defendant makes showing that such measures are not likely to facilitate notice . Here , Nabors has made no such showing . Social security numbers, however, are very personal and private , and plaintiffs have not stated any specific reason for needing them to effect notice to the putative class . Other courts routinely deny requests security numbers absent extenuating circum stances . social Accordingly , the court concludes that defendants shall provide to plaintiffs' counsel contact information potential class members that includes full names, email addresses, last known mailing addresses, a11 known telephone numbers, and dates of employment, but does not include social security numbers. See, e .a ., Dvson Petroleum Testers, Inc., 308 F. R.D. ( authorizing production contact v . Stuart ( W.D. Tex. 2015) information that included potential class members' email addresses and telephone numbers but social security numbers); In re Wells Farco Wace and Hour Emplovment Practices Litication ( . 111) C' No Wells Farao 111' '), 2013 - 28- WL 2180014, ( S.D. Tex. May 2013) ( denying plaintiffs' request for email addresses upon finding that uprovision of email addresses likely not facilitate notice case'); id. ' ( granting plaintiffs' request for social security numbers only potential plaintiffs whose notice returned as undeliverable). Sixtv Davs to Opt In Is Reasonable Citing the proposed order attached to plaintiffs' Motion for Certification, Nabors objects to plaintiffs' request for a ninety day opt-in period . Nabors argues : Plaintiffs' Motion seeks a sixty ( 60) day opt-in period for class members to join this lawsuit after notice is provided . Plaintiffs' order , on the other hand, requests a ninety ( 90) E dayj opt-in period. Ninety ( 90) days for the opt-in period is extremely excessive and unnecessary . If this matter is conditionally certified, Defendants request that this Court order a sixty ( 60) day opt-in p eriod .49 Since plaintiff's m otion seeks a sixty-day opt-in period, and since Nabors agrees that sixty-day opt-in period is reasonable, the opt-in period shall be sixty days . Written Consents Must Be Filed With the Court Nabors argues that plaintiff's request that consent form s provided by the putative plaintiffs be ndeemed filed as of their 49(d g at - 29- postmark date ,' ' unreasonable and violates the p lain language the FLSA .5 Asserting that plaintiffs have not cited any authority O supporting this request , Nabors urges the court Arelecj A ' ; Plaintiffs' request to deem the written consents as filed by the postmark dates and instead recognize their filing only after such action has been taken .'sl ' The FLSA provides that M E nlo employee shall be a party plaintiff any E FLSA) action unless he gives his consent writing to become such court party and such consent which such action is brought .' 29 ' action under the FLSA commences filed, if filed in the 5 216( b). An the date when the complaint ( the plaintiff) is specifically named as a party plaintiff in the complaint and written consent to become party plaintiff is filed on such date the court which action is brought.' 29 U.S. 5 256( ' C. a). nEllf such written consent was not so filed or if E the plaintiffrs) name did not so appear E, the action commences) on the subsequent date on which such written consent filed in the court in which the action was commenced .' ' 29 U.S.C. 5 256( b). See Donovan v. Universitv of Texas at El Paso, F.2d 1201, 1208 ( 5th Cir. 1981) ( recognizing that a plaintiff must file written consent with the court to become an FLSA party plaintiff; filing the complaint is not enough) 5OId . at 23 . 5lId - 30- collective action, the lim itations period is tolled for the original party plaintiffs on the date the complaint is brought, and for the later op-in plaintiffs on the date their notices consent are filed with the court.' Clark v . Centene Co . of Texas, L .P., 104 F. Supp . ' ( . W D. Tex. 2015) ( citing U .S .C. 256( a)- ( b)). Plaintiffs have not cited any authority that would allow the court deem consent forms provided by the putative plaintiffs filed as be their postmark date as opposed to the date on which they are actually filed with court . Thus plaintiffs request that consent forms provided by the putative plaintiffs be ' 'deemed filed as of their postmark date' will be denied . ' Defective Notice Nabors argue that The notice should inform opt-ins that they may be required to respond to written questionsr sit for depositions and testify in court . The notice should also in form potential opt-in plaintiffs that they may be responsible for sharing in the liability for paym ent of costs if Defendants prevail in the law suit . Additionally, the notice should also inform potential opt-ins that Plaintiffs' attorneys fees will reduce their potential recovery . This information should be required so opt-ins can be fully informed of the consequences of their decision , as best as possible, and decide if it is worth it to join the lawsuit.5 2 Citing Behnken v . Luminant Mininq Co ., LLC , 997 F . Supp . 2d 524 ( . N D. Tex. 2014), Nabors argues that opt-ins should be 5 2:d - 31- informed that they may be required to pay costs if plaintiffs receive an unfavorable decision .o Neither AMC nor Nabors has asserted counterclaim s, and Nabors has not provided any reason believe that should defendants prevail, any costs assessed against plaintiffs would be more than de minimus with respect each individual . In a sim ilar case, another court in this district held that requiring an instruction that potential plaintiffs could be liable for costs associated with the lawsuit nmay have an terrorem effect that is disproportionate the actual likelihood that costs or counterclaim damages w ill occur any significant degree .' Baranas v . Acosta, Civil Action No . 4:11-cv-3862 , ' ' 1952261, at WL ( S.D. Tex. May 30, 2012) ( citation omitted). Moreover, courts in this district routinely approve notice forms FLSA actions that do not include language regarding the class members' potential liability for costs . See e .a ., Wells Farao 111, 2013 WL 2180014, at *8. Because Nabors has failed to identify any reason for concern that potential plaintiffs may be required to pay costs and expenses that are more than de minimus, and because courts in this district routinely approve notices w ithout warning potential plaintiffs about such costs and expenses, the court is not persuaded that such a warning 531d - 32- appropriate this case . IV . Conclusions and Order reasons explained 5 111, above, plaintiffs' requests (1) that defendants be ordered to produce social security numbers putative class members, and that consent form s provided by the putative plaintiffs be ndeemed filed as of their postmark date' are DENIED . Accordingly, Plaintiffs' Partially ' Opposed Motion for Class Certification & Expedited Discovery ( Docket Entry No. 49) is GQAHYRD IN PART AHn DENIED IN PART, and the court provisionally deems this action a collective action and defines the conditionally approved collective class as follow s: A11 current and former rig welders who were jointly employed by Applied Machinery Corporation and by Nabors Corporate Services, Incw and/or by Nabors Industries, Inc . at Applied Machinery Corporation's Conroez Texas location within the three-year period immediately preceding entry of this Memorandum Opinion and Order, i .e ., from June 24, 2012, to the present . Within thirty days of the entry of this Mem orandum Opinion and Order defendant shall provide plaintiffs with list of employees fitting the description of the conditionally certified class that includes each individual's full name, last known m ailing address, email address ( known), a11 known telephone numbers, and if dates of employment . Plaintiffs shall have thirty days from the receipt of this information potential class members. m ail the proposed notice the The opt-in period shall be sixty days from the date the notice is mailed . SICHRD at Houston , Texas, on this 24th da o , 2016. < e' SIM LAKE UNITED STATES DISTRICT JUDGE - 33-
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