Andrew v. Schlumberger Tech. Corp.

Decision Date24 August 2011
Docket NumberNo. CIV 10–1239 JB/GBW.,CIV 10–1239 JB/GBW.
Citation808 F.Supp.2d 1288
PartiesMartin ANDREW, Thomas A. Friedrich, Jake Gonzales, Juan Gonzalez, Kevin Prescott, Danny Reese, and Lee Wilks, Individually and on behalf of all those similarly situated, Plaintiffs, v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant.
CourtU.S. District Court — District of New Mexico


W.T. Martin, Jr., Martin, Dugan & Martin, Carlsbad, NM, for Plaintiffs.

Jeffrey L. Lowry, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, Michael S. Hudson, The Kullman Firm, Columbus, MS, Benjamin H. Banta, The Kullman Firm, New Orleans, LA, for Defendant.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss, filed January 1, 2011 (Doc. 4). The Court held a hearing on March 16, 2011. The primary issue is whether the Plaintiffs' claims, which were previously barred by the one-year statute of limitations in N.M.S.A. 1978, § 37–1–5 in force at the time Defendant Schlumberger Technology Corporation allegedly violated the Plaintiffs' rights, were retroactively revived when the New Mexico Legislature amended the statute to provide for a three-year time period in which to file suit. Because there is no evidence of a clear legislative intent to apply § 37–1–5, as amended, to retroactively revive the Plaintiffs' causes of action that had already been extinguished by the running of the statute of limitations, the Court will grant the Defendant's motion to dismiss.


The Plaintiffs are former and present Schlumberger Technology employees in New Mexico. See Complaint for Unpaid Overtime Wages ¶¶ 4–5, at 3, filed November 15, 2010 (Doc. 1, Ex. A) (“Complaint”). They allege that they worked “large amounts” of overtime between the dates they began their respective Schlumberger Technology employment and December 31, 2007, and that Schlumberger Technology paid them fluctuating overtime rates rather than consistent time-and-a-half rates for those overtime hours. Complaint ¶¶ 7–10, at 3–4. The Fluctuating Workweek (“FWW”) method of paying overtime is permissible under the federal Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 through 219 (“FLSA”). See 29 C.F.R. § 778.114; Clements v. Serco, Inc., 530 F.3d 1224, 1230 (10th Cir.2008).

Paying overtime pursuant to the FWW method results in overtime being paid at a “half-time” rate rather than a “time-and-a-half” rate, but in weeks where the employee works less than forty hours, he or she is nevertheless paid for forty hours of work. Clements v. Serco, Inc., 530 F.3d at 1230. Based on a February 28, 2006, decision from the New Mexico Court of Appeals, however, New Mexico no longer permits employers and employees in New Mexico to agree to use the FWW method to calculate the payment of wages for overtime hours. See Labor & Indus. Div. v. Echostar Commc'ns Corp., 139 N.M. 493, 498, 134 P.3d 780, 784–85 (Ct.App.2006) (holding that “calculating overtime based on a fluctuating workweek ... is inconsistent with Section 50–4–22(C) of the New Mexico Code).

The Plaintiffs state that “Schlumberger Technology's last payment of overtime wages to Plaintiffs based upon the [FWW method] was the last pay period of 2007, which was in December of 2007....” Complaint ¶ 9, at 4.


The Plaintiffs did not file this action until November 19, 2010—almost three years after Schlumberger Technology's last payment of overtime wages to the Plaintiffs based upon the FWW method. See Complaint ¶ 9, at 4.

The Plaintiffs assert claims for unpaid overtime pursuant to N.M.S.A. 1978, § 50–4–22 and argue that they are “entitled to the difference between what Schlumberger paid them based upon the [FWW calculation method] and the amount they were entitled to be paid based upon a straight calculation of one and one-half their hourly rate for every hour of overtime worked.” Complaint ¶¶ 10, at 4. The Plaintiffs seek, pursuant to N.M.S.A. 1978, § 50–4–26, among other things, “all unpaid overtime [wages] for the entire time they worked for Schlumberger” plus prejudgment interest; “an additional amount equal to twice the unpaid wages;” and attorney's fees. Complaint ¶¶ 11–14, at 4–5. The Plaintiffs bring this action as a putative collective action on behalf of themselves and all those similarly situated. See Complaint ¶ 15, at 5.

Schlumberger Technology moves the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the action with prejudice and at the Plaintiffs' cost, arguing that the Plaintiffs' claims are time-barred. See Memorandum in Support of Defendant's Motion to Dismiss, filed January 4, 2011 (Doc. 5). Schlumberger Technology contends that the relief the Plaintiffs seek under N.M.S.A. 1978, § 50–4–26 is time barred under N.M.S.A. 1978, § 37–1–5. The Plaintiffs filed their Response in Opposition to Motion to Dismiss on January 21, 2011. See Doc. 9 (“Response”). On February 2, 2011, Schlumberger Technology filed its Reply in Support of Defendant's Motion to Dismiss. See Doc. 10.

At the March 16, 2011 hearing, the Plaintiffs stated that they do not dispute that their cause of action accrued in December 2007; they challenge only whether the amended statute of limitations applies retroactively. See Transcript of Hearing at 2:25–4:13 (taken March 16, 201 1) (“Tr.”) (COURT: ... [Y]ou are only challenging the retroact[ivity]—your only issue is the retroactive application. MR. W.T. MARTIN JR.: I think that's accurate, yes.”).1 The Plaintiffs also agreed that the Court could decided whether their claims are time barred on a motion to dismiss. See Tr. at 4:23–5:8 (Court, Martin). The parties agreed that the Court should decide whether this action is time barred before it decides class certification issues. See Tr. at 24:25–25:22 (Court, Banta, Martin).

The parties stated that N.M.S.A. 1978, § 37–1–5 was not amended in response to this litigation. See Tr. at 7:9–16 (Court, Martin); id. at 20:4–12 (Banta); id. at 20:13–21:11 (Court, Martin). Schlumberger Technology stated that N.M.S.A. 1978, § 37–1–5's legislative history suggested that the amendment was an effort to align N.M.S.A. 1978, § 37–1–5 with the Fair Labor Standards Act. See Tr. at 7:16–8:1 (“MR. BANTA: ... Under the Fair Labor Statute Act the maximum statute of limitations is three years, and that is now what the New Mexico legislature has run with[ ] the amended version.”). The parties also stated that the Supreme Court of New Mexico decisions from when New Mexico was a territory continue to be good law. See Tr. at 9:16–19 (Banta); id. at 18:5–17 (Martin). The parties further agreed that New Mexico state law on retroactive application of statutes accords with federal caselaw on determining whether a statute applies retroactively. See Tr. at 10:15–12:6 (Court, Banta); id. at 17:16–23 (Court, Martin); id. at 21:24–22:7 (Banta).


While the statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute. Statute of limitations questions may, therefore, be appropriately resolved on a Fed.R.Civ.P. 12(b) motion.Aldrich v. McCulloch Prop., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980). Accord Gibson v. Parish, No. 08–7103, 360 Fed.Appx. 974, 977 (10th Cir.2010). See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (holding that, [i]f the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”).

Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. An important public policy lies at their foundation. They stimulate to activity and punish negligence.” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879). They reflect a balancing of “the interests in favor of protecting valid claims” and “the interests in prohibiting the prosecution of stale ones.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 463–64, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Statutes of limitations

are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.

United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

Statutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system.... [I]n the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the factfinding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious.

Bd. of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), abrogation on other grounds recognized in Fogle v. Slack, 419 Fed.Appx. 860, 865–66 (10th Cir.2011) (unpublished). Thus, once a legislative body has determined what is a sufficient period for bringing a claim, the courts should refuse to hear the claim after that time has passed. See Guar. Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 82 L.Ed. 1224 (1938).


In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court of the United States noted:

As Justice Scalia has demonstrated,...

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