Landry v. Swire Oilfield Servs.

• Decision Date: 02 May 2017
• Docket Number: No. CIV 16-621 JB/LF.,CIV 16-621 JB/LF.
• Citation: 252 F.Supp.3d 1079
• Parties: Eddie LANDRY; Mario Constancio, Jr. and Mark Tamayo, Plaintiffs, v. SWIRE OILFIELD SERVICES, L.L.C. and Swire Water Solutions, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

252 F.Supp.3d 1079

Eddie LANDRY; Mario Constancio, Jr. and Mark Tamayo, Plaintiffs,

v.SWIRE OILFIELD SERVICES, L.L.C. and Swire Water Solutions, Inc., Defendants.

No. CIV 16-621 JB/LF.

United States District Court, D. New Mexico.

Filed May 2, 2017

Daniel M. Faber, Law Office of Daniel Faber, Albuquerque, New Mexico—and—Patrick Leyendecker, Ahmad Zavitsanos Anaipakos Alavi & Mensing, P.C., Houston, Texas,—and—Udyogi Hangawatte, Galvin B. Kennedy, Kennedy Hodges L.L.P., Houston, Texas, Attorneys for the Plaintiffs

Charlotte A. Lamont, Littler Mendelson, P.C., Albuquerque, New Mexico—and—Yvette V. Gatling, Littler Mendelson, P.C., Houston, Texas, Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiffs' Motion for Conditional Certification, Hoffman n– La Roche Notice, and Expedited Ruling, filed January 13, 2017 (Doc. 35)("Motion"). The Court held a hearing on March 23, 2017. The primary issues are: (i) whether the Court should conditionally certify this case as a collective action pursuant to § 216(b) of the Fair Labor Standards Act, 29 U.S.C. §§ 201 – 219 ("FLSA"), with respect to two classes of employees who worked for Defendants Swire Oilfield Services, L.L.C. and Swire Water Solutions, Inc. (collectively "Swire Oil")¹ throughout the United States of America within the last three years, i.e., (a) oilfield manual laborers whom Swire Oil paid on a salary basis without overtime (the "Salary Class"), and (b) oilfield manual laborers whom Swire Oil paid according to the fluctuating workweek method (the "FWW Class"); (ii) whether the Court should approve the Plaintiffs' Proposed Notice and Consent Form, filed January 13, 2017 (Doc. 35–1)("Notice and Consent Form"); (iii) whether the Court should authorize two mailings of the Notice and Consent Form to all potential Plaintiffs via regular mail, email, and text message and allow class members to execute their consent forms electronically; and (iv) whether the Court should order Swire Oil to produce all potential Plaintiffs' names and known addresses, cellular telephone numbers, and email addresses, so that notice may be implemented. The Plaintiffs request that the Court expedite its consideration of the Motion.

The Court will grant the requests in the Motion. Specifically, the Court will conditionally certify as a collective action the Salary Class and the FWW Class. The Court approves the proposed Notice and Consent Form, and will authorize notice to all potential Plaintiffs via regular mail, email, and text message. The Court will also require that Swire Oil produce the potential Plaintiffs' names and known contact information so that notice may be implemented as the Plaintiffs request.

FINDINGS OF FACT

The central issue that the Motion presents is whether the Court should conditionally certify this case as a collective action pursuant to FLSA § 216(b). See Motion at 1. A § 216(b) certification decision turns on whether a proposed class is comprised of "similarly situated" employees. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). The Court's determination as to a particular group of employees' similarity is a finding of fact, see Zavala v. Wal–Mart Stores Inc., 691 F.3d 527, 534 (3d Cir. 2012) ; Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008), which the Tenth Circuit reviews for clear error, see Colony Ins. Co. v. Burke, 698 F.3d 1222, 1238 n.21 (10th Cir. 2012) (citing Fed. R. Civ. P. 52(a)(6) ; Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ). Here, both the Plaintiffs and Swire Oil have submitted briefings on the issue of conditional certification under § 216(b). See Motion; Defendant's [sic] Response Opposing Plaintiffs' Motion for Conditional Certification, Hoffman n– La Roche Notice, and Expedited Ruling at 1, filed January 27, 2017 (Doc. 37)("Response"); Plaintiffs' Reply Brief in Support of Their Motion for Conditional Certification, Hoffman n– La Roche Notice, and Expedited Ruling at 1, filed February 2, 2017 (Doc. 44)("Reply"). In determining whether to grant conditional certification, the Court has carefully considered all factual assertions that these briefings raise. The Court accepts some factual assertions and rejects others. The Court also liberally judicially notices adjudicative, background facts. See Fed. R. Evid. 201.

The Court's findings of fact are authoritative only on the question of conditional certification under § 216(b). At the "notice stage," before the completion of discovery, the Court uses a lenient "similarly situated" standard, which "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Thiessen v. General Electric Capital Corp., 267 F.3d at 1102 (brackets, citations, and internal quotation marks omitted). At this stage, the Court "does not weigh the evidence, resolve factual disputes, or rule on the merits" of the plaintiffs' claims. Greenstein v. Meredith Corp., 948 F.Supp.2d 1266, 1267 (D. Kan. 2013) (Robinson, J.)(citation omitted). Certification at this initial stage is thus conditional; after the completion of discovery, the Court "makes a second determination, utilizing a stricter standard of ‘similarly situated.’ " Thiessen v. General Electric Capital Corp., 267 F.3d at 1102–03 (citation omitted). Accordingly, after discovery concludes, the parties may relitigate the factual findings that the Court presently makes for purposes of conditional certification.

1. Overview of the Parties.

1. Swire Oil provides oilfield services, including oilfield fluid management, to drilling companies around the world, "including virtually every major oil play in the State of New Mexico and the United States." Original Complaint, Collective Action, Class Action, and Jury Demand ¶ 29, at 6, filed June 21, 2016 (Doc. 1)("Complaint").

2. To assist with the drilling process, Swire Oil employs oilfield manual laborers, i.e., equipment operators, to rig, monitor, and maintain the water transfer and chemical blending equipment that it supplies. See Complaint ¶ 30, at 6.

3. During the last three years, Plaintiffs Eddie Landry, Mario Constancio, Jr., and Mark Tamayo worked as operators of the equipment that Swire Oil supplied for its clients' hydraulic fracturing ("fracking") jobs at well sites in the United States. See Complaint ¶¶ 9–11, at 3. See also Motion at 2 (specifying that the Plaintiffs worked on fracking jobs).

4. Tamayo worked as an operator at well sites located in New Mexico. See Complaint ¶ 11, at 3.

5. The Plaintiffs seek to represent a nationwide class comprised of all current and former Swire Oil operators "who were paid on a salary basis without overtime in the last three years," i.e., the "Salary Class." Complaint ¶ 54, at 9.

6. The Plaintiffs also seek to represent a nationwide class comprised of all current and former Swire Oil operators "who were paid under the fluctuating work week method during the last three years," i.e., the "FWW Class." Complaint ¶ 54, at 9.

7. Finally, Tamayo seeks to represent a class of current and former Swire Oil operators "who worked in New Mexico during the last three years and who were paid under the fluctuating workweek method," i.e., the "New Mexico Class." Complaint ¶ 56, at 10.

8. Thus far, forty-six current and former Swire Oil operators have noticed their written consent join in this lawsuit. See Motion at 1 (citing Plaintiffs' Notice of Filing Consent at 1–2, filed June 27, 2016 (Doc. 8)(noticing forty individuals' consent to join, including: Bradley Ramsey; Chris Weller; Christopher Wells; Clay Sanderford; David Carroll; David Crager; Duane Burleson; Eric Adkison; Eric Kelly; Ernbie Salinas; Fidencio Vasquez; Garrekk Singleton; George Bryant; George Murphy; Hau Bui; Hugo Valdez; Isaac Ruiz; Ivan Rizo; Jeremy Warren; Jiminsky Evans; John Moy; Jose Gonzalez; Juan Silva; Julio Ramirez; Harvey Keith Cook; Logan Byerly; Louis Walton; Martin Mena; Michael Sutton; Mikah White; Nathan Calderon; Roel Acosta; Sammy Rodriguez; Santos De La Cruz; Sergio Rizo; Shawn Horn; Travis Mearns; Ulysses Dozier; Walter Glasier; and Wayne Hrozek); Plaintiffs' Notice of Filing Consent at 1, filed August 11, 2016 (Doc. 11)(Jessie Brown); Plaintiffs' Notice of Filing Consent at 1, filed September 16, 2016 (Doc. 23)(Michael Musch); Plaintiffs' Notice of Filing Consent at 1, filed November 9, 2016 (Doc. 30)(Johnny McKeever); Plaintiffs' Notice of Filing Consent at 1, filed December 21, 2016 (Doc. 32)(Sergio Perales); Plaintiffs' Notice of Filing Consent at 1, filed February 24, 2017 (Doc. 49)(Phillip Hunter and Christopher Gullett)).

2. Swire Oil Operators' Job Descriptions.

9. Although Swire Oil hired operators such as the Plaintiffs under various job titles, all operators had essentially the same primary duties: rigging up, monitoring, maintaining, and rigging down water transfer and chemical blending equipment at oil well sites. See Declaration of Eddie Landry ¶ 2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35–4)("Landry Decl.")(stating that duties included "rig[ging] up jobs," "servicing," and "maintaining fluid transfer equipment"); Declaration of Michael Sutton ¶ 2, at 1 (executed January 11, 2017), filed January 13, 2017 (Doc. 35–5)("Sutton Decl.")(stating that he would "rig up jobs," "monitor[ ] water tank levels," and "rig down equipment"); Declaration of Isaac Ruiz ¶ 2, at 1 (executed January 13, 2017), filed January 13, 2017 (Doc. 35–6)("Ruiz Decl.")("rigging up and rigging down jobs" and "maintenance on wellsite equipment"); Declaration of Roel Acosta ¶ 2, at 1 (executed January 12, 2017), filed January 13, 2017 (Doc. 35–7)("Acosta Decl.")("maintaining water transfer equipment," "rigging up and down jobs," and "monitor[ing] water levels"); Declaration of Juan Silva ¶ 2, at 1 (executed January 12, 2017), filed ...