Dyson v. Stuart Petroleum Testers, Inc.

308 F.R.D. 510, 2015 U.S. Dist. LEXIS 113509, 2015 WL 5062265
CourtDistrict Court, W.D. Texas
DecidedAugust 27, 2015
DocketNo. 1-15-CV-282 RP
StatusPublished
Cited by11 cases

This text of 308 F.R.D. 510 (Dyson v. Stuart Petroleum Testers, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 2015 U.S. Dist. LEXIS 113509, 2015 WL 5062265 (W.D. Tex. 2015).

Opinion

ORDER

ROBERT L. PITMAN, District Judge.

Before the Court are Plaintiffs Motion for Conditional Certification of a Collective Action and Authorization for Notice, filed July 6, 2015 (Clerk’s Dkt. # 15) and the responsive pleadings thereto. After reviewing the parties’ pleadings, relevant case law, as well as the entire case file, the Court issues the following order.

I. BACKGROUND

Plaintiff Rory Dyson brings this action both individually and on behalf of all others similarly situated against defendants Stuart Petroleum Testers, Inc. (“Stuart”) and Scott Yariger asserting violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

Plaintiff alleges Defendants provide oil and gas well monitoring services to energy companies in multiple states including Texas, Arkansas and Louisiana. Plaintiff states he, and other putative class members, are employed as “flow testers” whose primary duties consist of monitoring oil and gas wells. (Plf. 1st Am. Compl. ¶¶ 16-19).

Plaintiff alleges he and other similarly situated workers were improperly classified by Defendants as independent contractors, rather than employees, despite the fact that Defendants wholly controlled their work. Plaintiff states, although he and other similarly situated workers regularly worked in excess of forty hours per week, they were not paid overtime compensation as required by the FLSA. (Id. ¶¶ 20-36). Plaintiff further asserts Defendants’ conduct was undertaken in willful, malicious and/or reckless disregard of the mandates of the FLSA. Specifically, Plaintiff alleges Defendants set up a paper profile designed to create the impression that flow testers were indepen[512]*512dent contractors, although in reality they were employees of Defendants. (Id. ¶¶ 37-38). Plaintiff seeks monetary damages, attorney’s fees and costs. (Id. ¶ 60).

Plaintiff has filed a motion seeking conditional certification of this lawsuit as a collective action under the FLSA. Plaintiff asserts there are other similarly situated individuals whose rights under the FLSA have been violated by Defendants and those individuals should be permitted to opt-in to this action. The parties have filed responsive pleadings to the motion and the matters are now ripe for determination.

II. CERTIFICATION

A. Applicable Law

The FLSA permits a court to order an action to proceed as a collective action on behalf of others similarly situated. The statute provides:

An action ... may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Thus, unlike a class action filed under Federal Rule of Civil Procedure 23(c), a collective action under § 216(b) provides for a procedure to “opt-in,” rather than “opt-out.” Roussell v. Brinker Int’l, Inc., 441 Fed.Appx. 222, 225 (5th Cir. 2011) (citing Satidoz v. Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir.2008)).

The threshold issue to certifying a collective action under the FLSA is whether the plaintiff can show the existence of a class whose members are “similarly situated.” The Fifth Circuit recognizes two approaches to use in making this determination. See 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, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). The first is a two-step conditional certification process known as the Lusardi approach, after Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987). The second approach is a Rule 23 — style analysis known as the Shushan approach, after Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D.Colo.1990). Although the Fifth Circuit has declined to specifically adopt either test, both the Fifth Circuit and the Supreme Court have made statements implying that a Rule 23 — type analysis is incompatible with FLSA collective actions. See Genesis Healthcare Corp. v. Symczyk, — U.S.-, 133 S.Ct. 1523, 1529, 185 L.Ed.2d 636 (2013) (“Rule 23 actions are fundamentally different from collective actions under the FLSA”); Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir.1981) (“The FLSA procedure, in effect, constitutes a congressionally developed alternative to the F.R. Civ. P. 23 procedures”). Moreover, the majority of courts within this circuit have adopted the Lusardi two-stage approach. See, e.g., Vanzzini v. Action Meat Distribs., Inc., 995 F.Supp.2d 703, 719 (S.D.Tex.2014) (applying Lusardi); Mateos v. Select Energy Servs., LLC, 977 F.Supp.2d 640, 643 (W.D.Tex.2013) (same); Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 994 (E.D.Tex.2011) (same); Marshall v. Eyemasters of Tex., Ltd., 212 F.R.D. 447, 449 (N.D.Tex.2011) (same).

The two stages of the Lusardi approach are the “notice stage” and the “decertification stage.” Mooney, 54 F.3d at 1216. 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 plaintiff will be 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 Lu-[513]*513sardi approach — asking the court to reassess whether the class members are similarly situated. Mooney, 54 F.3d at 1214. At that point the court will fully evaluate the merits of the class certification.

B. Discussion

Plaintiff seeks conditional certification on behalf of a class of similarly situated persons. Accordingly, the Court need only address the first stage of the Lusardi inquiry. Plaintiff seeks certification with respect to:

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Bluebook (online)
308 F.R.D. 510, 2015 U.S. Dist. LEXIS 113509, 2015 WL 5062265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyson-v-stuart-petroleum-testers-inc-txwd-2015.