Snively v. Peak Pressure Control, LLC

Decision Date30 June 2018
Docket NumberNo. MO:15–CV–00134–DC,MO:15–CV–00134–DC
Citation314 F.Supp.3d 734
Parties Jason SNIVELY, Stephen Clark, and all others similarly situated; Plaintiffs, v. PEAK PRESSURE CONTROL, LLC, and Nine Energy Services, LLC, Defendants.
CourtU.S. District Court — Western District of Texas

314 F.Supp.3d 734

Jason SNIVELY, Stephen Clark, and all others similarly situated; Plaintiffs,
v.
PEAK PRESSURE CONTROL, LLC, and Nine Energy Services, LLC, Defendants.

No. MO:15–CV–00134–DC

United States District Court, W.D. Texas, Midland-Odessa Division.

Signed June 30, 2018


314 F.Supp.3d 737

Jack Siegel, Siegel Law Group PLLC, Jesse Hamilton Forester, Forester Haynie PLLC, Travis Andrew Gasper, J. Derek Braziel, Lee and Braziel LLP, Dallas, TX, for Plaintiffs.

Alison P. Lungstrum, Christine M. White, Jason A. Culotta, Jones Walker LLP, Christopher S. Mann, New Orleans, LA, Jennifer L. Anderson, Jones Walker LLP, Baton Rouge, LA, Stephanie M. Gilliam, Jones Walker LLP, Houston, TX, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR DECERTIFICATION

DAVID COUNTS, UNITED STATES DISTRICT JUDGE

BEFORE THE COURT is Defendants Peak Pressure Control, LLC, and Nine Energy Services, LLC's Motion for Decertification of FLSA § 216(b) Conditionally–Certified Collective Action. (Doc. 146). After due consideration, the Court DENIES Defendants' Motion. Id.

I. FACTUAL BACKGROUND

Plaintiffs filed this case on August 26, 2015, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et. seq. (Doc. 1). Plaintiffs claim they never received overtime for hours worked in excess of 40 hours in a single workweek. (Doc. 85 ¶ 1). On February 29, 2016, the Court conditionally certified the case for the following class: "All pressure control operators who were employed by Nine Energy Services, LLC or Peak Pressure Control, LLC from August 26, 2012, to the present who were paid in whole or in part on a salary basis." (Doc. 56). After the close of the opt-in period, approximately 70 Plaintiffs remain in the suit. (Doc. 146 at 3). To ease the discovery burden, the parties chose 16 discovery-group Plaintiffs. Id.

On May 1, 2018, Defendants filed the motion at issue to decertify this collective action. Id. Defendants contend the Court should decertify this case because:

(1) the claims, defenses and liability issues in the case are inherently individualized, which makes a fair and accurate determination [of] liability and exemption defenses impossible on a representative basis, (2) Plaintiffs are not similarly
314 F.Supp.3d 738
situated to one another based [on] their differing positions, duties, and the individualized nature and circumstances of each job performed, and (3) any "representative" evidence is not truly representative and may create liability where there is none—or vice versa—such that proceeding as collective action is unfair to the parties.

Id. at 4. The parties filed a response and reply to Defendants' motion. (Docs. 171, 180).1

II. LEGAL STANDARD

An employee may bring an action for violating the minimum wage and overtime provisions of the FLSA either individually or as a collective action on behalf of himself and "other employees similarly situated." 29 U.S.C. § 216(b). Unlike a class action filed under Federal Rule of Civil Procedure 23(c), a collective action under Section 216(b) provides for a procedure to "opt-in," rather than "opt-out." Roussell v. Brinker Int'l, Inc. , 441 F. App'x 222, 225 (5th Cir. 2011) (citing Sandoz v. Cingular Wireless LLC , 553 F.3d 913, 916 (5th Cir. 2008) ). Although the Fifth Circuit has declined to adopt a specific test to determine when a court should conditionally certify a class or grant notice in a case brought under the FLSA, the majority of courts within the Fifth Circuit have adopted the Lusardi two-stage approach, after Lusardi v. Xerox Corp. , 118 F.R.D. 351 (D.N.J. 1987).2

The two stages of the Lusardi approach are the "notice stage" and the "decertification stage." See Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1216 (5th Cir. 1995), overruled on other grounds , Desert Palace, Inc. v. Costa , 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). At the notice stage, the district court "determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." Acevedo v. Allsup's Convenience Stores, Inc. , 600 F.3d 516, 519 (5th Cir. 2010). "Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class." Mooney , 54 F.3d at 1214. If the court finds that the putative class members are similarly situated, then conditional certification is warranted, and the plaintiffs are given the opportunity to send notice to potential class members. Id. After the class members have opted in and discovery is complete, the defendant may then file a decertification motion—the second stage of the Lusardi approach—asking the court to reassess whether the class members are similarly situated. Id. At that point, the court will fully evaluate the merits of the class certification. Id.

After discovery is largely complete, the Defendant may move to decertify the conditionally certified class—initiating the second stage of the Lusardi approach. Vanzzini , 995 F.Supp.2d at 720 (citing Aguirre v. SBC Comm'ns, Inc. , CIV.A. H-05-3198, 2006 WL 964554, at *5 (S.D. Tex. Apr. 11, 2006). "At [the decertification] stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question." Mooney , 54 F.3d at 1214. If the Court

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determines the plaintiffs are similarly situated, the collective action proceeds. Vanzzini , 995 F.Supp.2d at 720 (citing Aguirre , 2006 WL 964554, at *5 ). "Alternatively, if the court finds that the [plaintiffs] are not similarly situated, the opt-in plaintiffs are dismissed without prejudice to bringing their own actions, and the original plaintiffs may proceed with their individual claims." Id. (citations omitted). As in the notice stage, at the decertification stage "[s]imilarly situated does not mean identically situated." Basco v. Wal–Mart Stores, Inc. , CIV.A. 00-3184, 2004 WL 1497709, at *5 (E.D. La. July 2, 2004). "At step two, courts generally consider the following factors when determining whether a lawsuit should proceed collectively: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Falcon v. Starbucks Corp. , 580 F.Supp.2d 528, 534 (S.D. Tex. 2008) (citations omitted). "The three factors are not mutually exclusive and there is considerable overlap among them." Maynor v. Dow Chem. Co. , 671 F.Supp.2d 902, 931 (S.D. Tex. 2009) (quoting Johnson v. Big Lots Stores, Inc. , 561 F.Supp.2d 567, 574 (E.D. La. 2008) ).

The burden is on the Plaintiff to prove that the individual class members are similarly situated at the decertification stage. Proctor v. Allsups Convenience Stores, Inc. , 250 F.R.D. 278, 280 (N.D. Tex. 2008) (citations omitted). "The decision whether to decertify a collective action is within the district court's discretion." Falcon , 580 F.Supp.2d at 534 (citing Mooney , 54 F.3d at 1213; Pendlebury v. Starbucks Coffee Co. , 518 F.Supp.2d 1345, 1348–49 (S.D. Fla. 2007) ).

III. DISCUSSION

Defendants move to decertify this collective action. (Doc. 146). As the Court determines that Plaintiffs are similarly situated and that fairness and procedural considerations favor collective treatment of the case, the Court DENIES Defendants' decertification Motion. Id.

A. Factual and Employment Settings of the Individual Plaintiffs

The first factor to consider is whether disparate factual and employment settings of the individual Plaintiffs favor decertification. Falcon , 580 F.Supp.2d at 534. "This first factor assesses the opt-in plaintiffs' job duties, geographic location, supervision, and salary to determine if the Plaintiffs are similarly situated." Reyes v. Tex. Ezpawn, L.P. , CIV.A. V-03-128, 2007 WL 101808, at *2 (S.D. Tex. Jan. 8, 2007) (citing Johnson v. TGF Precision Haircutters, Inc. , CIV.A. H-03-3641, 2005 WL 1994286, at *2 (S.D. Tex. Aug. 17, 2005) ; Lusardi , 118 F.R.D. at 358–59 ). A common job title does not necessarily mean plaintiffs performed the same work. Id. at *4 (citing Morisky v. Pub. Servc. Elec. & Gas Co. , 111 F.Supp.2d 493, 498 (D.N.J. 2000) ).

Defendants contend, "[e]ven though Plaintiffs may have generally performed the same type of work, the ways they performed that work (which has great impact on the exemption issues) varied by Plaintiff." (Doc. 146 at 25). Specifically, Defendants cite that some pressure control operators (PCOs) trained while others were trainees, and the training period varied among PCOs. Id. Defendants also state that Plaintiffs did not work at the same locations or have the same supervisors. Id. Finally, Defendants note that Plaintiffs performed various jobs at different frequencies—such as stage jobs, tow jobs, or hotshot runs. Id. at 26.

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Despite these differences, Plaintiffs shared similar factual and employment...

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