Certification Granted in Wyoming Casing Lawsuit

Burruss v. Wyoming Casing Service, Inc., Not Reported in Fed. Supp. (2017)

2017 WL 3687345 Only the Westlaw citation is currently available.

United States District Court, D. North Dakota.

Eric BURRUSS, Dustin Rook, Justin Heath, and all others similarly situated under 29 U.S.C. § 216(b), Plaintiffs, v.

WYOMING CASING SERVICE, INC., Defendant.

Case No. 1:16–cv–080 | Signed 03/29/2017 Attorneys and Law Firms Jack Siegel, Siegel Law Group PLLC, Jesse (Jay) Forester, Jimmy Derek Braziel, Lee & Braziel, LLP, Dallas, TX, for Plaintiffs.

Ashley R. Thronson, Joseph M. Sokolowski, Fredrikson & Byron, PA, Minneapolis, MN, Kristy L. Albrecht, Fredrikson & Byron P.A., Fargo, ND, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION Daniel L. Hovland, Chief Judge *1 Before the Court is Plaintiff's “Motion for Notice of Potential Plaintiffs and Conditional Certification” filed on July 1, 2016. See Docket No. 45. The Defendant 1 did not respond to the motion. For the reasons set forth below, the Plaintiff's motion is GRANTED. 1

The Court notes Steve Halverson has not been added as a Defendant because leave of court was not obtained prior to the filing of the second amended complaint. See Fed. R. Civ. P. 15(a).

The first amended complaint remains the operative document. See Docket No. 10.

I. BACKGROUND The Plaintiffs are former employees of the Defendant who brought this Fair Labor Standards Act (“FLSA”) lawsuit against the Defendant to recover unpaid overtime wages that they contend the Defendant failed to pay in accordance

with the FLSA. Specifically, the Plaintiffs contend that the Defendant employs casing employees who had a primary duty of performing oil field casing work, regularly worked over 40 hours per week, did not receive overtime at the legally required rate (Overtime Miscalculation Policy), and did not receive overtime for all overtime hours worked (Uncounted Hours Policy). They also allege that other casing employees performed work similar to Plaintiffs' work, and worked under the same pay scheme that violates the FLSA. The Plaintiffs seek conditional certification of the case as a collective action under the FLSA's collective action provision, U.S.C. § 216(b).

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II. STANDARD OF REVIEW The FLSA authorizes employees to bring a collective action against employers to recover unpaid overtime.

29 U.S.C. § 216(b). Unlike a Rule 23 class action, under the FLSA no employee shall be a party to a collective action unless they give consent in writing to become such a party, and such consent is filed in the court in which the action is brought.

Chin v. Tile Shop, LLC, 57 F. Supp. 3d 1075, 1082 (D. Minn. 2014). Courts have discretion, in “appropriate cases,” to facilitate the opt-in process by conditionally certifying a class and authorizing court-supervised notice to potential optin plaintiffs. Id. (citing Saleen v. Waste Mgmt., Inc., 649 F. Supp. 2d 937, 939 (D. Minn. 2009)).

A collective action under the FLSA may only proceed if the plaintiffs demonstrate they are similarly situated to the proposed FLSA class. This process requires a two step inquiry. First, the Court must determine whether the class should be conditionally certified for notification and discovery purposes. Burch v. Qwest Communications Int'l, Inc., 500 F. Supp. 2d 1181, 1186 (D. Minn. 2007). In this early stage of the conditional certification process, plaintiffs merely need to establish a colorable basis for their claim that the putative class members were the victims of a single decision, policy, or plan. Id. The determination of class status at this early notice stage is to be granted liberally because there has been little or no discovery and courts have minimal evidence for analyzing the class.

After discovery is completed, courts then conduct an inquiry into several factors if there is a motion to decertify the class.

Burch, 500 F. Supp. 2d at 1186. These factors include: (1) the extent and consequences of disparate factual

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Burruss v. Wyoming Casing Service, Inc., Not Reported in Fed. Supp. (2017)

and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant that appear to be individual to each plaintiff; and (3) other fairness and procedural considerations. Id. If the class is decertified, opt-in class members are dismissed without prejudice and the case proceeds only in the putative class representatives' individual capacities.

to present who received pay based on the quantity of work (whether pay per foot, pay per job, or some other measure) or non-discretionary bonus payments (whether called “Wet Pay” or some other name) which were not included in the regular rate of pay.

Chin, 57 F. Supp. 3d at 1082.

III. LEGAL DISCUSSION *2 The Defendant did not respond to the Plaintiffs' motion.

Under D.N.D. Civ. L. R. 7.1(F), the failure to respond to a motion may be deemed an admission that the motion is well taken. The parties have not completed discovery and, therefore, the case is at the first step of the two-step inquiry.

Accordingly, the Court need only determine whether the Plaintiffs have come forward with evidence establishing a colorable basis that the putative class members are victims of a single decision, policy, or plan. At this stage, courts are to rely on the pleadings and any affidavits submitted by the Plaintiff to determine whether to grant conditional certification. See Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007). The Court is not required to make any credibility determinations or findings of fact with respect to contrary evidence presented by the parties.

Chin, 57 F. Supp. 3d at 1083.

A. SIMILARLY SITUATED PUTATIVE CLASS MEMBERS The term “similarly situated” is not defined by the FLSA, but it “typically requires a showing that an employer's commonly applied decision, policy, or plan similarly affects the potential class members, and inflicts a common injury on plaintiffs and the putative class.”

Chin, 57 F. Supp. 3d at 1083.

The determination of whether the Plaintiff's showing meets this standard “lies within the Court's sound discretion.”

Id. Plaintiffs assert the members of the proposed class are similarly situated because they worked for the Defendant performing oilfield casing services and were subjected to the same unlawful overtime policies.

The Plaintiffs' proposed class consists of the following Potential Plaintiffs:

The standards for conditional certification of a collective action under

29 U.S.C.216(b) are far less stringent than the

requirements typically required of class actions under Rule 23 of the Federal Rules of Civil Procedure. The requirement of a plaintiff attempting to conditionally certify a class of plaintiffs under the FLSA is “merely [to] provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.”

Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 892 (N.D. Iowa 2008).

The Court finds that the Plaintiffs have provided a colorable basis for the Court to conclude that (1) the workers are similarly situated because they received pay based on the quantity of work performed, and (2) the Defendant's pay policy inflicted a common injury on the proposed class.

Accordingly, the Court finds the Plaintiffs have adequately demonstrated that the members of the class are similarly situated, and the Plaintiffs have met the burden required to justify conditional certification of similarly situated workers employed by Wyoming Casing Services, Inc. between June 2013 and the present.

IV. CONCLUSION The Court has carefully considered the entire record, the requirements under 29 U.S.C. § 216(b), and the Fair Labor Standards Act. The Court, in the broad exercise of its discretion, finds that the proposed class has met the requirements of the FLSA at this early stage. The Plaintiffs' “Motion for Notice to Potential Plaintiffs and Conditional Certification” (Docket No. 45) is GRANTED. The Defendant is ordered to produce the names, last known addresses, email addresses, and telephone numbers (“Employee Information”) of the following individuals:

All workers employed by Wyoming Casing Services, Inc. from June 2013

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Burruss v. Wyoming Casing Service, Inc., Not Reported in Fed. Supp. (2017)

All workers employed by Wyoming Casing Services, Inc. from June 2013 to the present who received pay based on the quantity of work (whether pay per foot, pay per job, or some other measure) or non-discretionary bonus payments (whether called “Wet Pay” or some other name) which were not included in the regular rate of pay.

*3 The Defendant shall provide the Employee Information in an electronic form that can be used by the Plaintiffs in mailing out the Court-approved Notice. If the information is not stored electronically, the Defendant shall provide it in written form. This information must be produced to the Plaintiffs within ten (10) business days of the entry of this Order.

If the Defendant fails to provide the Employee Information within ten (10) business days of the date this order is signed, the statute of limitations is equitably tolled for each day after the tenth business day that the Defendant fails to provide the Employee Information.

The Court approves the form and content of the proposed Notice to Potential Plaintiffs (“Notice”) (Docket No. 46– 1) and the proposed Consent Form (Docket No. 46–2) submitted by the Plaintiffs along with their motion. The Court authorizes that the Notice may be immediately issued to those individuals whose names are being provided as required by this Order. The Consent Form shall be enclosed with the Notice, along with a self-addressed, postage-paid return envelope for U.S. Postal Mailing. The Plaintiffs are permitted to send subsequent mailings of this Notice and Consent Form at their expense. The Notice and Consent Form shall be mailed by first class mail or overnight delivery at the Plaintiffs' attorneys' cost and may also be sent electronically by email.

prior to the deadline. A Consent Form postmarked on the deadline is considered timely. Consent Forms received by mail without postmarks shall be considered timely if received within five (5) business days of the deadline. The Plaintiffs shall provide the Court and opposing counsel with a notice indicating the date on which the Notice and Consent Form were initially mailed so the Court and the Parties are advised of the beginning of the opt-in period. Within five (5) days of the mailing date, the Defendant shall post the Notice and Consent Form at each of the Defendant's branches/locations/ shops that employ the Potential Plaintiffs. The posting will be in an area readily and routinely available for review by such employees. The Defendant will verify to the Plaintiffs in writing that the postings are complete.

Plaintiffs' counsel shall date stamp the returned consents on the day they are received in counsel's office and retain any envelope or other evidence showing the date the Consent Form was postmarked, fax-stamped, or received. Within ten (10) days after the close of the Opt-In Period, Plaintiffs' counsel will file the Consent Forms for the Opt-In Plaintiffs, noting the received date for each individual on the Notice of Filing. For purposes of the statute of limitations, the received date will be the date the Consent Forms are considered to be filed with the Court.

Within thirty (30) days after the close of the opt-in period, the Parties are directed to confer pursuant to Rule 16(b) to present the Court with a proposed Joint Scheduling Order and Case Management Plan setting forth proposed dates and covering the items set forth in the Court's previous Order Requiring Scheduling Conference. See Docket No. 32. The Case Management Plan should set forth the Parties' agreements concerning how discovery will proceed and how the case will proceed at trial. If the Parties cannot agree on the elements of the Proposed Scheduling Order or Case Management Plan, they may present their views in the submission for Court determination. The Parties must file the Joint Scheduling Report and Case Management Plan within fourteen (14) days of the deadline for the Parties to confer. *4 IT IS SO ORDERED.

The Potential Plaintiffs shall be provided sixty (60) days after the date the Notice and Consent Form are initially mailed to file a Consent Form opting-in to this litigation, unless the Parties agree to permit late filings or good cause can be shown as to why the consent was not postmarked or received End of Document

All Citations Not Reported in Fed. Supp., 2017 WL 3687345

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