Akins v. Worley Catastrophe Response, LLC
| Decision Date | 04 March 2013 |
| Docket Number | CIVIL ACTION NO. 12-2401 |
| Parties | JOHN AKINS ET AL. v. WORLEY CATASTROPHE RESPONSE, LLC ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
JOSEPH C. WILKINSON, JR.
This is a putative collective action for unpaid overtime pay and liquidated damages brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., by John Akins and other named plaintiffs on behalf of themselves and other similarly situated claims adjusters against their former employers, Worley Catastrophe Response, LLC, Worley Catastrophe Services, LLC (collectively "Worley") and Michael Allen Worley. Non-parties Michael Sullivan, Charles Baldwin, Johnny Knighten, Jimmy Phillips and Ron Dickerson (the "Sullivan Plaintiffs") filed two nearly identical motions to intervene: (1) Motion for Leave to File Petition for Intervention, Record Doc. No. 48, and (2) Motion to Intervene, Record Doc. No. 49. The original plaintiffs in the instant action filed a timely memorandum in opposition to both motions. Record Doc. No. 60. The Sullivan Plaintiffs received leave to file a reply memorandum. Record Doc. Nos. 67, 68, 69.
Plaintiffs filed Objections and Assertions of Privilege Over Evidence Submitted in the Sullivan Plaintiffs' Motion for Leave to File Petition for Intervention and Motionto Intervene and Request that Such Evidence, and Any Discussion Thereof, be Stricken From the Record and Clawed-Back. Record Doc. No. 51. The Sullivan Plaintiffs filed a timely opposition memorandum. Record Doc. No. 55. Plaintiffs received leave to file a reply memorandum in support of their motion. Record Doc. Nos. 59, 61, 62. Defendants did not file a memorandum regarding any of the motions.
This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 26.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that the Sullivan Plaintiffs' motions to intervene are DENIED and that plaintiffs' motion to assert privilege and claw back a document is GRANTED IN PART AND DENIED IN PART, as follows.
The five Sullivan Plaintiffs are the named plaintiffs in a separate state court class action, Michael Sullivan et al. v. Worley Companies et al., No. 599,055, Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, which was filed against the same Worley entities that are defendants in the instant action. In the state court action, the Sullivan Plaintiffs, individually and on behalf of a putative class ofapproximately 1,200 claims adjusters, allege that Worley breached a written employment agreement with them and failed to pay them wages due under that contract. The Sullivan Plaintiffs seek to recover the unpaid difference in pay, plus statutory penalties and attorney's fees under Louisiana law. La. Rev. Stat. §§ 23:631, 23:632. In that case, the Sullivan Plaintiffs do not allege any violation of federal law.
The state trial court certified a class action, but granted Worley's motion for summary judgment and dismissed all claims before any court-approved notice was sent to class members. On December 21, 2012, the Louisiana First Circuit Court of Appeal affirmed the class certification. Sullivan v. Worley Cos., No. 2012 CA 0095, 2012 WL 6677786 (La. App. 1st Cir. Dec. 21, 2012). On the same date in a separate opinion, the First Circuit found that genuine issues of material fact are in dispute regarding the interpretation of the contract or contracts between the parties. The state appellate court reversed the grant of summary judgment to Worley and remanded the case for further proceedings. Sullivan v. Worley Cos., No. 2012 CA 1140, 2012 WL 6681799 (La. App. 1st Cir. Dec. 21, 2012). On February 6, 2013, the First Circuit denied Worley's application for rehearing of its reversal of the summary judgment. Plaintiffs' Exh. 1, Record Doc. No. 60-2. According to their reply memorandum, the Sullivan Plaintiffs filed a Motion to Approve and Disseminate Class Notice in the trial court about two weeks ago, on February 21, 2013. Record Doc. No. 69 at p. 2.
In February 2011, the same attorneys who represent the Akins plaintiffs previously filed in this court, on behalf of John J. Altier and others similarly situated, (1) a putative collective action under the FLSA, which alleged the same claims as are now asserted in Akins; and (2) a separate putative class action under Fed. R. Civ. P. 23, which alleged the same breaches of contract as are alleged in the Sullivan litigation. The actions in this court were consolidated. John J. Altier v. Worley Catastrophe Response, LLC et al., Civil Action No. 11-241, c/w Civil Action No. 11-242 (collectively "Altier").
This court conditionally certified a collective action under the FLSA in Civil Action No. 11-241, but denied class certification in the breach of contract action, Civil Action No. 11-242. After a court-approved notice was sent to all collective action members and the opt-in period expired, the parties negotiated a settlement of the Altier plaintiffs' claims. The settlement included a waiver and release not only of the plaintiffs' FLSA claims, but also of their contract-based claims against Worley, including specifically those claims raised on their behalf in the Sullivan putative class action. All plaintiffs who had opted in to the FLSA action were given the opportunity either to consent to the settlement agreement or to decline to settle on the negotiated terms.
All but six (6) of the 544 opt-in plaintiffs in Altier consented to participate in the settlement. This court approved the settlement agreement and dismissed the consolidated actions. Order and Reasons, Record Doc. No. 312 in Altier, C.A. No. 11-241 c/w 11-242. In its final order of dismissal, the court dismissed with prejudice all claims of all plaintiffs who had participated in the settlement and dismissed the claims of those who had elected not to participate in the settlement "without prejudice to any rights they may have either to re-file such claims in the United States District Court for the Eastern District of Louisiana or to pursue their individual claims either in the existing cases or elsewhere." Order on Motion, Record Doc. No. 316 in Altier, C.A. No. 11-241 c/w 11-242, entered on August 6, 2012.
Akins was filed about two months after Altier was dismissed. The Akins plaintiffs seek to certify another collective action whose putative members are defined identically as the collective class in Altier, excepting those who had previously settled their claims in Altier. Thus, the instant action includes as putative plaintiffs all former Worley claims adjusters during the relevant time period who were eligible to, but did not, opt in to Altier and its settlement agreement. The plaintiffs in Akins do not assert any breach of contract claims.
All of the putative collective action members in Akins are also putative class members in Sullivan, as were all of the plaintiffs who opted in to Altier, until they settled with Worley and waived their breach of contract claims asserted in Altier and in Sullivan as a part of the settlement agreement. As of the date when plaintiffs filed theirmemorandum in opposition to the Sullivan Plaintiffs' motions to intervene, 233 plaintiffs had opted in to the instant action.
The Sullivan Plaintiffs previously filed a similar-though substantially less timely-motion to intervene in Altier. In that case, I examined sua sponte the jurisdictional question whether I have the authority to rule definitively on the motion to intervene when all parties in this matter have consented in writing to its referral to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c), but the proposed intervenors have not so consented. I found that I could exercise jurisdiction. Altier v. Worley Catastrophe Response, LLC, No. 11-241, 2012 WL 161824, at *3-6 (E.D. La. Jan. 18, 2012).
In the instant case, the proposed intervenors again have not questioned my jurisdiction. Plaintiffs state in their opposition memorandum that they have "researched (for any updates) the authorities" I cited in Altier in finding that I have jurisdiction, and that they "found no new authorities that undermine a Magistrate Judge's authority to rule on this non-dispositive pretrial motion." Plaintiffs' memorandum in opposition, Record Doc. No. 60 at p. 1 n.4.
My own research confirms plaintiffs' statement. Accordingly, based on the same analysis as in my similar order in Altier, I find that I have the authority to rule on the motions to intervene in Akins.
As to intervention of right, Rule 24(a) states:
On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a). Thus, a party is entitled to an intervention of right if (1) the motion to intervene is timely; (2) the potential intervenor asserts a "direct, substantial [and] legally protectable" interest that is related to the property or transaction that forms the basis of the controversy in the case into which it seeks to intervene; (3) the disposition of that case may impair or impede the potential intervenor's ability to protect its interest; and (4) the existing parties do not adequately represent the potential intervenor's interest. In re Lease Oil...
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