O'Quinn v. Transcanada USA Servs., Inc.

Decision Date29 June 2020
Docket NumberCIVIL ACTION NO. 2:19-cv-00844
Citation469 F.Supp.3d 591
Parties Terry O'QUINN, Plaintiff, v. TRANSCANADA USA SERVICES, INC., Defendant.
CourtU.S. District Court — Southern District of West Virginia

Andrew W. Dunlap, Pro Hac Vice, Taylor Ashley Jones, Pro Hac Vice, Josephson Dunlap, Houston, TX, Anthony J. Majestro, James S. Nelson, Powell & Majestro, Charleston, WV, for Plaintiff.

Eric E. Kinder, Spilman Thomas & Battle, Charleston, WV, Maria Greco Danaher, Ogletree Deakins Nash Smoak & Stewart, Pittsburgh, PA, Stephen J. Quezada, Pro Hac Vice, Ogletree Deadkins Nash Smoak & Stewart, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

Pending before the court is a Motion to Compel Certain Opt-in Plaintiffs to Arbitration and Stay Proceedings, [ECF No. 44], and a Motion to Dismiss for Lack of Personal Jurisdiction, [ECF No. 34], filed by Defendant TransCanada USA Services, Inc. ("TransCanada"). Also pending before the court is a Motion for Conditional Class Certification and Court-Authorized Notice, [ECF No. 26], filed by Plaintiffs. For the reasons that follow, Defendant's Motion to Compel Arbitration, [ECF No. 44] is GRANTED in part and DENIED in part, Defendant's Motion to Dismiss, [ECF No. 34], is DENIED , and Plaintiff's Motion for Conditional Class Certification, [ECF No. 26], is GRANTED .

I. Introduction

This case involves claims to recover unpaid overtime wages and other damages from TransCanada under the Fair Labor Standards Act (the "FLSA"), specifically pursuant to 29 U.S.C. § 216(b). Original named Plaintiff, Ernie Harbaum, filed a Collective Action Complaint against TransCanada on November 26, 2019. [ECF No. 1]. Plaintiff Harbaum motioned for leave to amend his complaint, [ECF No. 33], on March 13, 2020. The court granted leave to amend, [ECF No. 37], and the First Amended Collective Action Complaint (the "Complaint"), [ECF No. 38], which added named Plaintiff Terry O'Quinn, was filed on March 23, 2020. On March 25, 2020, Plaintiff Harbaum filed a Notice of Dismissal Without Prejudice [ECF No. 39], dismissing his claims against TransCanada. This dismissal leaves Plaintiff O'Quinn as the sole remaining named Plaintiff in this action.

There are several issues currently pending before this court. First, Plaintiff requests that this court conditionally certify class under the FLSA. [ECF No. 26]. Second, Defendant moves to dismiss the Opt-in out-of-state Plaintiffs, arguing that this court does not have personal jurisdiction over Defendant on their claims. [ECF No. 34]. Third, Defendant asks this court to stay the case and compel Opt-in Plaintiffs Craig Cypert, Charles Copley, Chad Copley, and Larry Krone to arbitration pursuant to the terms of their arbitration agreements. [ECF No. 44].

Plaintiff requests that this court grant conditional certification of and authorize notice be sent to:

All Inspectors employed by, or working on behalf of, TransCanada who were classified as independent contractors and paid a day rate with no overtime at any time in the past 3 years (the "Inspectors").

Pl.'s Mot. for Conditional Certification and Court-authorized Notice, [ECF No. 27]. Plaintiff further requests that this court (1) approve the Notice and Consent forms attached to the Motion as Exhibit 10; (2) authorize proposed notice methods; (3) order TransCanada to produce each Inspectors' contact information to Class Counsel within 10 days of the court's ruling; and (4) authorize a 60-day notice period for the Inspectors to join the class. Id. In support of these requests, Plaintiff includes the Declarations of TransCanada employees, Ernie Harbaum (Ex. 1), Charles Fairchild (Ex. 2), Mark Dubose (Ex. 3), Terry O'Quinn (Ex. 4), Charles Copley (Ex. 5), Larry Krone (Ex. 6), and Craig Cypert (Ex. 7). See [ECF Nos. 26–1, 26–2, 26–3, 26–4, 26–5, 26–6, 26–7]. Plaintiff also includes copies of Taxable Pay Summaries (Ex. 8) and Employee Timesheets (Ex. 9).

a. Factual background

TransCanada is a company whose employees work on the transportation of energy resources and construction of energy infrastructure. "It operates thousands of ‘projects’ across over thirty states related to the construction and maintenance of natural gas pipelines." Dec. of Ted McDavitt, Ex. A [ECF No. 36–1] ¶ 3. "To meet the demands of its various construction projects and provide third-party independent oversight, TransCanada's affiliate, TransCanada USA Operations Inc. ("TransCanada Operations"), has contracted with ten preferred Field Service Providers/Suppliers ("Suppliers") to supply manpower, work, and inspection services, including Gulf Interstate Field Services ("GIFS") ..." and System One Holdings LLC ("System One"). Dec. of Ted McDavitt, Ex. A, [ECF No. 51–1] ¶ 3. The Field Services Agreement ("FSA") governs how Suppliers provide personnel to any TransCanada affiliated project. Id. at ¶ 4. The FLSA provides that the Supplier is "independent" and that any work performed will be supplied "by the Supplier under its own direction and control." Id. at ¶ 6. "TransCanada engages Suppliers to provide third-party Project and Construction Managers to oversee its projects. TransCanada may also employ Project and Construction Managers [‘Inspectors’] to monitor the progress of various projects." Id. at ¶ 7. Inspectors' main role is to ensure that projects are completed according to TransCanada's and/or its clients' specifications and guidelines. See Dec. of Terry O'Quinn, Ex. 4 [ECF No. 26–4] ¶ 12.

Plaintiff alleges that TransCanada uniformly misclassified Inspectors as independent contractors, rather than as employees, and routinely failed to pay Inspectors for overtime work. Plaintiff avers that Inspectors were functionally treated as employees. See Dec. of Terry O'Quinn, Ex. 4 [ECF No. 26–4] ¶ 16. Plaintiff alleges that Defendant sets and controls Inspectors' pay (a non-negotiable day rate), sets their schedule, controls how they perform their job duties, requires them to adhere to its policies and procedures, guidelines, and strict directives, has the ability to remove them from the job if they fail to adhere to these policies, does not require them to significantly invest to perform their job, and does not require them to possess any unique skills other than the skills required by all workers in their respective position. Pl.'s Mem. in Supp. of Mot to Conditional Cert. and Court Authorized Notice, 15 [ECF No. 27].

1. Representative Plaintiff Terry O'Quinn

Plaintiff O'Quinn worked as a Pipeline Inspector exclusively for Defendant from approximately May 2018 until November 2018. Dec. of Terry O'Quinn, Ex. 4 [ECF No. 26–4] ¶ 2. O'Quinn worked on projects in West Virginia. O'Quinn stated in a Declaration that "[b]ased on my experience with TransCanada, my conversations with TransCanada's personnel, my observations on location, and my conversations with co-workers, I believe all of TransCanada's Inspectors classified as independent contractors and paid a day rate performed the same or similar work." Id. at ¶ 13. TransCanada classified O'Quinn as an independent contractor and paid O'Quinn a day rate, without regard to the number of hours worked. Id. at ¶¶ 4, 7. Plaintiff alleges that TransCanada improperly classifies these Inspectors as independent contractors and pays them a set day rate with no overtime. According to Plaintiff, O'Quinn and Putative Class Members regularly worked more than 40 hours a week but never received overtime for hours worked in excess of 40 hours in a single workweek. See First Amend. Collective Action Compl., [ECF No. 26] ¶ 3–4. O'Quinn specifically on average typically worked 66 hours a week. Dec. of Terry O'Quinn, Ex. 4 [ECF No. 26–4] ¶ 2.

2. Opt-in Plaintiffs ("Opt-ins")

Plaintiff provides the Declarations of five Opt-in Plaintiffs who worked for Defendant: Charles Fairchild (Exhibit 2), Mark Dubose (Exhibit 3), Charles Copley (Exhibit 5), Larry Krone (exhibit 6), and Craig Cypert (Exhibit 7). [ECF Nos. 26–2, 26–3, 26–5, 26–6, 26–7].

All five individuals worked as Inspectors. Fairchild worked as a Utility Inspector for TransCanada from approximately January 2019 until September 2019 on a project in Pennsylvania. Dec. of Charles Fairchild, Ex. 2 [ECF No. 26–2] ¶¶ 2, 10. Dubose worked as a General Inspector for TransCanada from approximately April 2018 until September 2019 on projects in Louisiana and West Virginia. Dec. of Mark Dubose, Ex. 3 [ECF No. 26–3] ¶¶ 2, 10.

Copley worked as a Chief Inspector for TransCanada from approximately February 2017 until July 2019 on projects in Ohio, West Virginia, Pennsylvania, and Virginia. Dec. of Charles Copley, Ex. 5, [ECF No. 26–5] ¶¶ 2, 10. Krone worked as a Slip Inspector for TransCanada from approximately March 2017 through Present on projects in West Virginia and Ohio. Dec. Larry Krone, Ex. 6 [ECF No. 26–6] ¶¶ 2, 10. Cypert worked for TransCanada as a Tier 3 Coating Inspector from approximately January 2017 until October 2019 on projects in West Virginia, Louisiana, and Ohio. Dec. of Craig Cypert, Ex. 7 [ECF No. 26–7] ¶¶ 2, 10.

Each Inspector reported that his main job was to ensure that the assigned project was completed according to TransCanada's and/or its clients' specifications and guidelines. [ECF Nos. 26–2, 26–3, 26–5, 26–6, 26–7] ¶ 12. Each Inspector was paid a flat day rate (regardless of number of days worked or number of hours worked in a day). Id. at ¶¶7–9. And on average each Inspector typically worked 60 hours a week. Id. at ¶ 17.

In addition to the five Opt-ins who provided Declarations, Defendant points this courts attention to Opt-ins Dina Cooper-Pollock and Christopher Richardson, who never performed work on a TransCanada project in West Virginia. See Dec. of Ted McDavitt [ECF No. 34–1] ¶ 4. I find it prudent to note that there have been several additional notices of consent to join the putative class of Opt-ins since the filing of the instant Motions before the court.1

II. Arbitration

Defendant moves to compel...

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