Barnes v. Abandonment Consulting Servs., L.L.C.
| Decision Date | 26 July 2013 |
| Docket Number | CIVIL ACTION NO. 4:12-CV-01399 |
| Parties | RICHARD BARNES, Plaintiff(s), v. ABANDONMENT CONSULTING SERVICES, L.L.C., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Plaintiff Richard Barnes's ("Barnes") Motion to Conditionally Certify a Collective Action and to Issue Notice. (Dkt. 20). This case has been referred to this Court pursuant to 28 U.S.C. § 636 (b)(1)(B). (Dkt. 25). Having considered the parties' briefing, argument, the applicable legal authorities, and all matters of record, the Court recommends that Barnes's Certification Motion be DENIED.
Barnes is a 79-year-old Michigan resident. For the past fifteen years, he has worked as a "Logistics Coordinator, Safety Rep, Rig Dispatcher, and Rig Clerk" on various oil rigs in the Gulf of Mexico. (Dkt. 29-2 at 3). Barnes is also the owner of KAL Logistics, a company that he describes as a "self-employment company." (Dkt. 21).
Abandonment Consulting Services ("ACS") is oil and gas staffing firm that provides contract personnel for well plugging and abandonment projects. (Dkt. 22-3, ¶2). On July 7, 2011, Barnes and ACS entered into an "Independent Contractor Master Agreement" (the "Agreement"). Barnes signed the Agreement as the "owner" of "KAL Logistics," and provided the company's EIN number for processing his payments instead of his own social security number. Barnes was assigned by ACS to work for Apache Corporation as a Rig Clerk for three 14-day periods. (Dkt. 20-3 at 57-61; Dkt. 22-3, ¶ 3). Apache paid ACS for each day that Barnes worked or was available to work on its rig. Apache paid a "Full Day Rate" of $450 and a "Standby Day Rate" of $225. (Dkt. 22-7 at 41). ACS then paid Barnes 80% of these amounts. (Dkt. 26-2 at 8). To work for these three periods, Barnes traveled from his home in Michigan to the "meet-up" point in Louisiana. ACS, whom Apache then reimbursed, paid for Barnes's travel to and from the offshore rig in the Gulf of Mexico. Between July 21, 2011 and September 12, 2011, Barnes was paid for 30 full days and 2 standby days, and compensated for 1,820 miles of travel (Dkt. 26-3 at 18-35).
On May 3, 2012, Barnes filed this lawsuit against ACS, alleging that ACS was his employer and violated sections of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA").1 Barnes alleges he should have been classified as an "employee" of ACS, and that ACS willfully violated the FLSA by failing to pay him (and other similarly situatedRig Clerks) the overtime pay required by statute. (Dkt. 1, ¶ ¶ 6.1, 6.5). Barnes alleges that ACS's classification of Rig Clerks as independent contractors instead of employees is a "common practice or policy" that ACS uses to avoid paying payroll taxes and overtime premiums. (Dkt. 20 at 6-7). Barnes's Complaint alleges that he asserts these claims "on his own behalf and on behalf of other employee/workers and former employee/workers of ACS who were paid the day rate at any time from May 3, 2009, to the present." (Dkt. 1 ,¶2.1).
In July 2012, United States District Court Judge Keith Ellison issued a Docket Control Order, setting the deadline for amended pleadings as February 1, 2013, the discovery cut-off date as April 5, 2013, and assigning an August 5, 2013 trial date. In August 2012, Barnes filed his initial disclosures under Federal Rule of Civil Procedure 26(a). Barnes listed only himself, his attorney, a retained expert and one co-worker, as persons with knowledge of relevant facts.
On April 25, 2013—almost a full year after he filed his Complaint—Barnes filed a "Motion for Conditional Certification and Notice to Potential Plaintiffs." (Dkt. 20). In that Motion, Barnes alleges that he is owed overtime pay because he "regularly worked over forty hours per week . . . and . . . at least twelve hours every day." (Dkt. 20-4 at 3). He further insists that FLSA exemptions do not apply to his position because "[a] day-rate does not meet the salary basis test of the FLSA, which is an integral part of any potentially applicable exemption." (Dkt. 20 at 18). Barnes also alleges that "[b]ased on [his] experience and knowledge of the role and job duties of Rig Clerks, other workers assigned by Abandonment to work as Rig Clerk during the past three years would haveworked a similar number of hours." (Dkt. 20-4 at 3). Accordingly, Barnes seeks to have this case certified as a collective action.
Barnes's proposed class differs from the language of his Complaint and defines the proposed class as including all "persons employed by Abandonment Consulting, LLC as a Rig Clerk at any time between May 3, 2009, and the present." (Dkt. 20-6 at 2). Additionally, even though the discovery period in this case closed three months ago, Barnes also asks the Court to order ACS to provide, "within ten days," the full name, last known address, last known telephone number, and social security number or date of birth of all of its assigned Rig Clerks from May 1, 2009 through the current date. (Dkt. 20).
A. The FLSA allows collective actions to be brought on behalf of "similarly situated" workers.
Under the FLSA, an employee may file a lawsuit for unpaid overtime wages on behalf of himself as well as other "similarly situated employees" who "opt-in" to the suit. 29 U.S.C. § 216(b); Walker v. Honghua Am., LLC, 870 F. Supp. 2d 462, 464 n.2 (S.D. Tex. 2012). The term "similarly situated" is not defined in the FLSA. See, e.g., 29 U.S.C. §§ 203, 216. Courts in this District interpret "similarly situated" to mean an employee who is "affected by a common policy, plan, pattern, or practice" as the one at issue in the plaintiff's lawsuit. McKnight v. D. Hous., Inc., 756 F. Supp. 2d 794, 803 (S.D. Tex. 2010).
B. In the Fifth Circuit, certification usually proceeds under the Lusardi approach—i.e., it is undertaken early in the case and a plaintiff's allegations that 'similarly situated' workers exist and wish to opt-in to the suit are reviewed 'leniently.'
Whether to certify a suit as a collective action under the FLSA is a decision committed to the discretion of the court. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995)(overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003)). Courts in the Southern District of Texas generally use the Lusardi approach to determine whether a collective action is warranted. See, e.g., Walker, 870 F. Supp. 2d at 465 () (internal citations omitted); see also Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
The Lusardi analysis proceeds in two stages: (1) a "notice stage", followed by (2) a decertification stage. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n. 2 (5th Cir. 2008)(citations omitted). The notice stage takes place early in the case, before the parties have a chance to conduct substantive discovery. Blake v. Hewlett-Packard Co., No. 4:11-CV-592, 2013 WL 3753965, at *4 (S.D. Tex. July 11, 2013). In contrast, the decertification process occurs after the parties have had ample opportunity for discovery. Id. At the first stage, the court makes a preliminary determination whether there are any potential plaintiffs who may be similarly situated to the plaintiff in the pending lawsuit. Mooney, 54 F.3d at 1213-14. The plaintiff seeking conditional certification must present at least a "minimal showing" that "(1) there is a reasonable basis for crediting theassertions that aggrieved individuals exist, (2) that those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted, and (3) that those individuals want to opt-in to the lawsuit." Walker, 870 F. Supp. 2d at 465-66 (citations omitted). Because this analysis occurs before the discovery process, the burden on the lead plaintiff is "lenient and typically results in conditional certification." See e.g., Walker, 870 F.Supp.2d at 465. Courts often make the determination based on the pleadings and any available affidavits. Id.
The second stage of Lusardi occurs after discovery has taken place. Upon a defendant's motion to decertify, the trial court reviews the available evidence collected in discovery. Id. If the court finds that the evidence shows that the plaintiffs are not in fact "similarly situated" to the original lead plaintiff, then the class is decertified, the opt-in plaintiffs are dismissed, and the original plaintiff proceeds individually. Id.
C. When a plaintiff moves for conditional certification after discovery, evidence of 'similarly situated' workers is reviewed under a stricter standard.
Lusardi presumes that the plaintiff moves for certification in early stages of the case. When a plaintiff instead waits until after the close of discovery to request certification, the "lenient" standard of the first step of Lusardi is no longer appropriate. Blake, 2013 WL3753965, at *4 ()(citation omitted). Instead, courts "consider the evidence submitted and the [Lusardi] two-step inquiry collapses into one." Harris v. Fee Transp. Servs., Inc., 2006 WL 1994586, at *3 (N.D. Tex. May 15, 2006); Valcho v. Dall. Cnty. Hosp. Dist., 574 F.Supp. 2d. 618, 622 (N.D. Tex. 2008) (). In this condensed approach, the plaintiff must meet a higher evidentiary standard in order prevent the imposition of an unfair burden upon defendants, and to prevent a "frivolous fishing expedition." Valcho, 574 F. Supp. 2d...
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