Certification Granted in Rocky Mountain Casing Lawsuit by siegellawgroup

McClure v. Rocky Mountain Casing Crew, Inc., Not Reported in Fed. Supp. (2017)

2017 WL 10109517 Only the Westlaw citation is currently available. United States District Court, D. North Dakota.

Under § 216(b) of the Fair Labor Standards Act, Plaintiffs propose a collective action including:

All non-exempt casing crew workers paid based on the amount of pipe laid or who received additional pay (including CDL bonus, per diem, discretionary trip, inverted mud, safety bonus, quarterly bonus or annual

Joseph MCCLURE, et al. and all others similarly situated, Plaintiffs v. ROCKY MOUNTAIN CASING CREW, INC., et al. Defendants

bonus) pay over the last three years. 3

1:16-CV-00322-BRW | Signed 02/14/2017

Plaintiffs claim that Defendants' policies “failed to pay for all overtime hours worked or pay overtime at the rate required

Attorneys and Law Firms Jack Siegel, Siegel Law Group PLLC, Jesse (Jay) Forester, Jimmy Derek Braziel, Lee & Braziel, LLP, Dallas, TX, for Plaintiffs. Kathleen R. Barrow, Jackson Lewis PC, Omaha, NE, for Defendants.

by the FLSA.” 4 3 4

Doc. No. 45 (amended “[i]light of clarifications made in Defendants' response). Id.

Billy Roy Wilson, UNITED STATES DISTRICT JUDGE

Plaintiffs' proposed approach for FLSA class actions (which I have adopted in other cases), involves “a two-step process [of] conditionally ordering the class to proceed as a collective action at the notice stage and permitting motions to decertify

*1 Pending is Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice (Doc. No. 32).

ORDER

Defendant has responded and Plaintiffs have replied. Also pending are Defendant's Motion for Leave to File Motion for Partial Summary Judgment (Doc. No. 37) and Motion for Hearing (Doc. No. 44). Plaintiffs have responded to both motions. 2 1

Doc. Nos. 43, 45.

Doc. Nos. 39, 46.

As set out below, Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice (Doc. No. 32) is GRANTED, as limited below. Defendant's Motion for Leave to File Motion for Partial Summary Judgment (Doc. No. 37) is GRANTED and the Motion for Hearing (Doc. No. 44) is DENIED. A. Plaintiffs' Motion for Conditional Certification

after discovery.” 5 McQuay v. American Intern. Group, Inc., No. 4:01CV-00661-BRW (E.D. Ark. Oct. 25, 2002).

Defendants attempt to point out significant differences in the proposed class members and the lack of merit in Plaintiffs' claims. I am not convinced that there are significant differences. Additionally, at this stage, I may not “make any credibility determinations or findings of fact with respect to contrary evidence presented by the parties, [but must] rely on the complaint and any affidavits that have been submitted.” 6 Here, Plaintiffs allege a class of employees who were employed as “Casing Employees” and paid under the same policies. If, as Defendants argue, there is, in fact, some tangible difference between those employees with CDLs and those without, that might be resolved with the creation of a subclass. Additionally, Defendants' argument about each employee's hours and duties being “unique on any given day” appears to go to calculation of damages, not the similarity of pay structures. 7 Finally, Defendants' arguments about per diem, inverted mud pay, and bonuses is premature. If

McClure v. Rocky Mountain Casing Crew, Inc., Not Reported in Fed. Supp. (2017)

Plaintiffs can establish that the payments were an effort to lower employees' regular rates of pay in order to lower potential overtime compensation, then Plaintiffs might be able to establish a violation of the FLSA. Accordingly, at this point, Plaintiffs have met their “lenient, not heavy” burden of showing that their positions are similar to that of the other proposed class members. 8 6 7 8

Knaak v. Armour-Eckrich Meats, LLC, 991 F. Supp. 2d 1052, 1059 (D. Minn. 2014). Doc. No. 43. Smith v. Fran Tech Services, Ltd., No. 4:09CV-00679-JLH, 2009 WL 4251017 (E.D. Ark. Nov. 24, 2009) (“The plaintiff's burden is lenient, not heavy, and may be met by making substantial allegations of class-wide discrimination that are supported by affidavits. A plaintiff need not show that his position is identical to the putative class members' positions, only that his position is similar to those of the absent class members.”).

1:16-cv-00265-DLH-CSM (N.D. January 17, 2017), Doc. No. 46.

C. Motion for Leave to File Motion for Partial Summary Judgment Defendants seek leave to file a motion for partial summary judgment related to the individual defendants Gerald Lapp, Daniel Fitzloff, and Gerry Depoyster. Plaintiffs object to the request. However, it seems to me that if these individual defendants should not be named in the case, either because of lack of jurisdiction or not being an “employer” or “enterprise” under the FLSA, the issue should be resolved now. Additionally, the limited discovery required to brief this issue would not burden either side.

CONCLUSION Based on the findings of fact and conclusions of law above, Plaintiffs' Motion for Conditional Certification and CourtAuthorized Notice (Doc. No. 32) is GRANTED as follows:

B. Notice to Class *2 Based on the above ruling, I must address Plaintiffs' proposed notice. First, I'm not sure why Wyoming Casing Service is mentioned in the notice, since its not a party

• The parties must forthwith meet and confer to address the appropriate changes required for the Notice to Class, and attempt to provide the agreed-upon changes to me by 5 p.m., Tuesday, February 28, 2017.

in this case; the reference should be removed. 9 The same is true of the reference to “Core Laboratories Overtime Pay Claims.” Additionally, Defendants point out that the Notice should include “a description of the two geographic areas where RMCC employs workers, i.e., North Dakota and

• The deadline in the Notice should be 60 days from the date the new notice is adopted by the Court, which I assume will be on or before Friday, February 28, 2017, if partes prove and agreed-to notice.

Wyoming.” 10 This seems like a reasonable request. 9 10

I assume this is typo included because the notice is similar to those used in other cases.

Defendant's Motion for Leave to File Motion for Partial Summary Judgment (Doc. No. 37) is GRANTED and the Motion for Hearing (Doc. No. 44) is DENIED. IT IS SO ORDERED this 14th day of February, 2017.

Doc. No. 43.

Accordingly, the parties should forthwith “meet and confer” on appropriate language based on the rulings above. I invite the parties attention to the language stipulated to by the parties

All Citations Not Reported in Fed. Supp., 2017 WL 10109517

in Bartkowiak v. American Casing & Equipment, Inc. et al. 11 End of Document