Snively v. Peak Pressure Control, LLC
| Decision Date | 09 November 2018 |
| Docket Number | MO:15-CV-00134-DC |
| Citation | 347 F.Supp.3d 294 |
| Parties | Jason SNIVELY, Stephen Clark, and All Others Similarly Situated; Plaintiffs, v. PEAK PRESSURE CONTROL, LLC, and Nine Energy Services, LLC, Defendants. |
| Court | U.S. District Court — Western District of Texas |
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, Christopher S. Mann, Jason A. Culotta, Jones Walker LLP, New Orleans, LA, Jennifer L. Anderson, Jones Walker LLP, Baton Rouge, LA, Stephanie M. Gilliam, Jones Walker LLP, Houston, TX, for Defendants.
ORDER ALLOWING REPRESENTATIVE EVIDENCE
On July 13, 2018, the Court held a Final Pretrial Conference in the above-captioned matter. (Doc. 215). On July 16, 2018, the Court issued its Final Pretrial Conference Order requesting that the parties file supplemental briefing regarding whether "a representative trial is required or sufficient for the resolution of this matter." Id. On July 20, 2018, both parties filed their respective Brief regarding whether the Court should continue with representative evidence. (Docs. 216, 217). At this juncture, the Court finds that the use of representative evidence is appropriate for the resolution of this matter.
On August 26, 2015, Plaintiffs filed this lawsuit against Defendants alleging Defendants failed to pay Plaintiffs for hours worked in excess of 40 hours in a single workweek in violation of the Federal Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et. seq. (Doc. 85 at 1). On February 29, 2016, the Court conditionally certified the case for: "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). Approximately seventy (70) Plaintiffs remained in the suit after the opt-in period terminated. (Doc. 217 at 2). The parties chose sixteen (16) discovery-group Plaintiffs to facilitate discovery. Id. On May 1, 2018, Defendants filed a Motion for Decertification arguing that "the highly individualized claims and defenses, particularly with respect to workweek-specific and Plaintiff-specific liability issues under the Motor Carrier and Technical Corrections Act, make a collective action and, thus, representative proof improper." (Doc. 216 at 1–2). The Court denied Defendants' Motion for Decertification on June 30, 2018. (Doc. 190). The Court found that the evidence demonstrated that: "pressure control operators performed relatively similar work, worked similar hours, and possessed similar qualifications while receiving no overtime pay;" "each Plaintiff must undergo the same factual inquiry as to whether that Plaintiff is subject to the MCA and HCE exemption;" and that "the limited nature of the evidence and the parties' bench trial request will enable an efficient and fair resolution of the case." Id. at 6, 10, 12.
On July 13, 2018, the Court held a Final Pretrial Conference at which Defendants questioned the fairness and efficiency of using representative proof. (Doc. 215). Accordingly, in its Final Pretrial Conference Order issued on July 16, 2018, the Court ordered the parties to file supplemental briefing regarding the issue of whether the use of representative evidence is proper in this case. Id. Both parties filed a Brief by the prescribed deadline of July 20, 2018. (Docs. 216, 217).
In their Brief, Defendants argue that Plaintiffs have not filed a representative trial plan thus Defendants "are limited in their ability to address the issue of representative proof without a specific, concrete proposal by the Plaintiffs." (Doc. 216 at 2). Defendants also allege that the FLSA does not require representative proof. Id. at 3. Next, Defendants indicate that "demonstrating the propriety of representative proof requires not only a specific plan but a showing that the proposed plan would yield a fair result in light of the specific facts of the case." Id. at 5. Finally, Defendants argue that "the exemption defenses in this case present issues individualized to each Plaintiff and dependent on facts that, as a matter of the governing statute, require a week-by-week and Plaintiff-by-Plaintiff review."Id. at 6.
Plaintiffs counter that representative evidence has been used in many FLSA collective actions and is appropriate in this case. (Doc. 217). Plaintiffs argue that they "can prove liability and the inaccuracy of the driver's logs based on common evidence on a classwide basis," and that they can prove "both vehicle exclusivity and hours worked by ‘just and reasonable inference’ applicable to the class based on a weighted average for both components." Id. at 23. Finally, Plaintiffs contend that "the fact-finder is permitted to extrapolate the class damages from representative evidence, and Courts have often sanctioned the derivation of aggregate figures through averaging." Id. at 24.
Under Federal Rule of Civil Procedure 26(b)(2), the Court has the discretion to limit the scope of discovery in FLSA collective actions. Fed. R. Civ. P. 26(b)(2). Additionally, Federal Rules of Evidence 403 and 611 grant the Court the discretion to limit evidence that will unduly delay the proceeding, waste time, and is cumulative and unnecessary. Fed. R. Evid. 403, 611.
In an FLSA case, plaintiffs may "establish a prima facie case for non-testifying employees based on the ‘fairly representational’ testimony of other employees." Albanil v. Coast 2 Coast, Inc. , 444 Fed. Appx. 788, 806 (5th Cir. 2011) . The reasoning behind allowing the use of representative testimony is that in "many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant's liability." Tyson Foods, Inc. v. Bouaphakeo , ––– U.S. ––––, 136 S.Ct. 1036, 1046, 194 L.Ed.2d 124 (2016). "In a case where representative evidence is relevant in proving a plaintiff's individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class." Id. If and when representative evidence can be used to prove liability depends "on the purpose for which the evidence is being introduced and on ‘the elements of the underlying cause of action.’ " Id. (citing Erica P. John Fund, Inc. v. Halliburton Co. , 563 U.S. 804, 809, 131 S.Ct. 2179, 180 L.Ed.2d 24 (2011) ).
A defendant may refute the plaintiffs' representative testimony with evidence showing that " ‘individual employees are excepted from the pattern or practice’ and with evidence that ‘would tend to negate the inferences to be drawn from the testimony of the representative reporters.’ " Roussell v. Brinker Int'l, Inc. , No. H-05-3733, 2009 WL 595978, at *1 (S.D. Tex. Mar. 6, 2009) (citing Reich v. Gateway Press, Inc. , 13 F.3d 685, 702 (3d Cir. 1994) ). Finally, the Court may decide that the case requires decertification if, considering the trial evidence, the Court finds that the class is not similarly situated. Id. (citing Johnson v. Big Lots Stores, Inc. , 561 F.Supp.2d 567, 571–72 (E.D. La. 2008) ).
The parties disagree as to whether representative evidence is proper to prove liability and damages. (Docs. 216, 217). Whereas Defendants believe that the exemption defenses, in this case, present issues individualized to each Plaintiff and dependent on facts that require a week-by-week and Plaintiff-by-Plaintiff review, Plaintiffs argue that the sixteen (16) discovery-group Plaintiffs are representative of the entire class. Id. At this juncture, the Court finds that representative evidence may be used to prove liability and damages.
Before analyzing the parties' arguments, the Court notes that in their Brief, Plaintiffs assert that the sixteen (16) class members who were subject to discovery fairly represent the entire class. (Doc. 217 at 5–6, 17). Plaintiffs argue that they can prove liability on a classwide basis and propose that hours worked and MCA vehicle exclusivity "should be determined based on just and reasonable inference." Id. at 22–23. Finally, Plaintiffs assert that Plaintiffs' damages may be determined "based on an extrapolation of evidence." Id. at 23–25.
Defendants argue that the FLSA does not require the parties to use representative proof. (Doc. 216 at 3). While that may be correct, the Court notes that "the collective-action framework presumes that similarly situated employees are representative of each other and have the ability to proceed to trial collectively." Monroe v. FTS USA, LLC , 860 F.3d 389, 409 (6th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 980, 200 L.Ed.2d 248 (2018) (emphasis added) (citing Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1280 (11th Cir. 2008) ). Once the Court has determined that the Plaintiffs are similarly situated and "that they may proceed as a collective action[,]...whether the Plaintiffs have actually presented representative testimony of liability and damages of the collective action is reserved for trial."
Pierce v. Wyndham Vacation Resorts, Inc. , No. 3:13-CV-641-CCS, 2017 WL 4398656, at *7 (E.D. Tenn. Oct. 3, 2017) (citing Takacs v. Hahn Auto. Corp. , C-3-95-404, 1999 WL 33127976, at *1–3 (S.D. Ohio Jan. 25, 1999) ). Plaintiffs "bear the risk [of] failing to...
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