Nova Hardbanding Lawsuit

Case 2:17-cv-00493 Document 1 Filed 04/26/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LOUIE DESCHAMPS, and all others similarly situated under 29 USC § 216(b), Plaintiff, v.

Civil Action No. 2:17-00493

NOVA HARDBANDING, LLC, and KEN BROMLEY, individually,

COLLECTIVE AND CLASS ACTION COMPLAINT

Defendants.

COLLECTIVE AND CLASS ACTION COMPLAINT 1.

Louie Deschamps (“Plaintiff”) brings this collective and class action individually,

on behalf of those similarly situated, and on behalf of the proposed Rule 23 New Mexico Class Members against Nova Hardbanding, LLC and its president Ken Bromley (collectively, “Defendants”).

I. NATURE OF SUIT 2.

Defendants provide hardbanding, inspection and other oilfield services to oilfield

clients throughout the Southwest, including New Mexico and Texas. Defendants employed Plaintiff and the respective FLSA and NM Class Members (defined below) to perform manual and technical labor to provide Defendants’ products and services for customers at job sites (“Field Employees”).

3.

Defendants have violated the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.

(“FLSA”) and New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-22(D) (“NM Wage Law”) by classifying the FLSA and NM Class Members as exempt from overtime, paying them on a salary basis and refusing to pay them overtime despite those individuals regularly working over 40 hours per week.

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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II. 4.

PARTIES

Plaintiff Louie Deschamps is a New Mexico resident that worked for Defendants

as a Field Employee, and specifically as a pipe inspector, in New Mexico from approximately June 2014 to April 2015. His consent to participate in this lawsuit is attached as Exhibit A to this Complaint.

5.

Plaintiff brings this action individually and on behalf of those similarly situated

pursuant to the FLSA. The “FLSA Class Members” consist of Defendants’ current and former employees employed over the last three years who were responsible for performing manual and technical labor to provide Defendants’ products and services for customers at job sites whether they were referred to as drill pipe inspectors, hardbanders, hardbander operators, inspection helpers, inspectors, inspector helpers, or other job titles. This definition excludes all individuals who have filed consents to join Weaks v. Nova Mud, Inc., No. 2:17-cv-121 (D.N.M. Jan. 23, 2017); Foster v. Nova Hardbanding, LLC, No. 2:15-cv-1047 (D.N.M. Nov. 11, 2015), Jimenez v. Nova Mud, Inc., No. 2:15-cv-1058 (D.N.M. Nov. 19, 2015), Varela v. Nova Hardbanding, LLC, No. 2:16-cv-129 (D.N.M. Feb. 3, 2016), Mishler v. Nova Hardbanding, LLC (D.N.M. Aug. 9, 2016).

6.

Plaintiff also brings this claim as a Rule 23 class action pursuant to NM Wage

Law on behalf of the FLSA Class Members who worked for Defendants in New Mexico (“NM Class Members”).

7.

Defendant Nova Hardbanding, LLC is a New Mexico Limited Liability Company

that operates in New Mexico. Defendant may be served with process through its agent for service of process Ken Bromley at 419 W. Cain Street, Hobbs, New Mexico 88240, or wherever it may be found.

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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8.

Defendant Ken Bromley is the president of Nova Hardbanding, LLC and can be

served at 2600 Redbud Street, Hobbs, New Mexico 88240, or wherever he may be found.

III. 9.

JURISDICTION AND VENUE

This Court has jurisdiction over the claims because Plaintiff has asserted a claim

arising under federal law and specifically the FLSA. 10.

This Court has subject matter jurisdiction over the state law claims pursuant to 28

U.S.C. ยง 1332(d) because this is a class action with an amount in controversy of over $5,000,000.00 exclusive of interest and costs, and at least one Rule 23 Class Member is a citizen from a different state than Defendants. Alternatively, the Court has supplemental jurisdiction pursuant to 28 U.S.C ยง 1367.

11.

Venue is proper in the District Court of New Mexico because a substantial portion

of the events forming the basis of this suit occurred in this District and because one or more parties resides in this District. Specifically, Plaintiff resides in this District and the work he performed giving rise to these claims occurred in this District.

IV. 12.

FLSA COVERAGE FACTS

At all material times, Defendants acted, directly or indirectly, in the interest of an

employer or joint employer with respect to Plaintiff, and the FLSA and NM Class Members.

13.

At all times hereinafter mentioned, Defendants constituted employers or joint

employers within the meaning of the FLSA, 29 U.S.C. ยง 203(d) and NM Wage Law. 14.

At all relevant times, Defendants have been an enterprise engaged in commerce or

in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. ยง 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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said enterprise has had and has an annual gross volume of sales made or business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated).

Plaintiff and the Class Members specifically handled oilfield equipment and tools to perform manual and technical labor to provide Defendants’ products and services for customers at job sites 15.

At all relevant times, Plaintiff and the respective Class Members were individual

employees engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. § 203(e)(1).

V. 16.

FACTUAL ALLEGATIONS

Defendants have had business operations throughout the United States, including

in New Mexico and this judicial district, and their annual gross volume of sales made or business done exceed $500,000.00 per year.

17.

Ken Bromley is the president of Nova Hardbanding, LLC and has joint employer

liability based on his exertion of operation control over the corporation. The operational control he exerted and continues to exert includes making hiring and firing decisions, establishing pay rates, determining methods of payment and compensation policies and practices, and controlling/establishing company rules. Additionally, Ken Bromley has responsibility for the specific FLSA and NM Wage Law violations at issue. Specifically, Ken Bromley: (1) implemented and enforced the illegal misclassification policy at issue; (2) instructed Plaintiff, the FLSA Class Members, and the NM Class Members that they did not have to clock-in when they reported for work; (3) failed to keep proper employment records for Plaintiff, the FLSA Class Members, and the NM Class Members; and (4) failed to keep any proper time records for the hours worked by Plaintiff, the FLSA Class Members, and the NM Class Members during their employment.

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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18.

Plaintiff worked as a Field Employee for Defendants from approximately June

2014 to April 2015, and worked over 40 hours in one or more weeks during the past three years.

19.

As a Field Employee, Plaintiff’s primary job duties consisted of performing

technical and manual labor to provide Defendants’ products and services for customers at job sites. These job duties were routine and rote and did not include the exercise of discretion and independent judgment with respect to matters of significance.

20.

Plaintiff routinely worked over 40 hours per week, but Defendants failed to pay

him any overtime premium for all hours worked in excess of 40 per workweek.

21.

Instead of providing Plaintiff with overtime pay, Defendants misclassified

Plaintiff as exempt and paid him on a salary basis with no overtime pay for his many hours of overtime work.

22.

Defendants knew that Plaintiff worked in excess of 40 hours per week.

23.

Plaintiff is entitled to receive overtime pay for all hours worked in excess of 40

per workweek.

24.

Defendants willfully misclassified Plaintiff as exempt and refused to pay him

overtime, despite (1) having awareness of the FLSA’s minimum wage and overtime requirements; and (2) routinely receiving complaints from Plaintiff and the respective Class Members regarding their pay and excessive overtime hours.

25.

During the three years prior to the filing of this Complaint, Defendants employed

other FLSA Class Members as Field Employees. These individuals’ primary job duties consisted of performing manual and technical labor to provide Defendants’ products and services for customers at job sites. These job duties were routine and rote and did not include the exercise of discretion and independent judgment with respect to matters of significance.

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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26.

The FLSA Class Members routinely worked over 40 hours per week, but

Defendants failed to pay them any overtime premium for all hours worked in excess of 40 per workweek. Instead, Defendants misclassified the FLSA Class Members as exempt and paid them on a salary basis with no overtime pay for their many hours of overtime work.

27.

Defendants knew that the FLSA Class Members worked in excess of 40 hours per

28.

The FLSA Class Members are entitled to receive overtime pay for all the hours

week.

they worked in excess of 40 per workweek.

29.

Defendants willfully misclassified the FLSA Class Members as exempt and

refused to pay them overtime, despite (1) having awareness of the FLSA’s overtime requirements; (2) routinely receiving complaints from Plaintiff and the FLSA Class Members regarding their pay and excessive overtime hours; and (3) paying workers who performed substantially similar and non-exempt duties on an hourly/overtime eligible basis, but choosing not to pay Plaintiff and the FLSA Class Members overtime.

VI.

NEW MEXICO CLASS ACTION ALLEGATIONS

30.

Plaintiff incorporates all allegations previously made in this Complaint.

31.

Plaintiff brings his class action on behalf of the respective NM Class Members.

32.

The NM Class Members are so numerous that their joinder is impracticable.

While the precise number of the NM Class Members is unknown, at least 100 NM Class Members worked for Defendants at least one workweek of more than 40 hours in or out of New Mexico over the past three years.

33.

Plaintiff’s claims are typical of the NM Class Members. He and the NM Class

Members: (1) were responsible for performing manual and technical labor to provide Defendants’ products and services for customers at job sites; (2) were classified as exempt from ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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overtime; (3) were paid a salary; (4) worked in New Mexico in at least one workweek during the last three years; and (5) were denied overtime at a rate of one-and-one-half times their regular rate for all overtime hours worked.

34.

Common questions of law and fact for the NM Class Members predominate over

any questions affecting any individual member, including: a. Whether Defendants violated NM Wage Law by failing to pay the NM Class Members overtime compensation at a rate of time-and-one-half for all hours worked in excess of 40 in an individual workweek; b. Whether Defendants violated NM Wage Law by misclassifying the NM Class Members as exempt from overtime; c. The proper measure of damages sustained by the respective NM Class Members; and d. Whether Defendants should be enjoined for such violations in the future.

As a result, Plaintiff will fairly and adequately protect the respective NM Class Members’ interests and has retained counsel experienced in complex wage and hour class litigation.

35.

This action is properly maintainable as a class action under Fed. R. Civ. P.

23(b)(2) because Defendants acted or refused to act on grounds generally applicable to the NM Class Members, making final injunctive and/or declaratory relief appropriate to the NM Class Members as a whole.

36.

This action is properly maintainable as a class action under Fed. R. Civ. P.

23(b)(3) because: (1) questions or law or fact predominate over any questions affecting individual class members; and (2) a class action is superior to other methods to ensure a fair and efficient adjudication of this controversy because—in the context of wage and hour litigation— individuals lack the financial resources to vigorously prosecute lawsuits against large corporate defendants. Class litigation is also superior because it will preclude the need for unduly duplicative litigation resulting in inconsistent judgments pertaining to policies and practices, ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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including the failure to pay overtime to the NM Class Members. No apparent difficulties exist in managing this class action. Plaintiff intends to send notice to the proposed Rule 23 NM Class Members to the extent required by Fed. R. Civ. 23(c).

VII. COUNT I: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARS ACT 37.

Plaintiff incorporates all allegations previously made in this Complaint.

38.

During the relevant time period, Defendants violated and continue to violate the

provisions of sections 6 and 7 of the FLSA, 29 U.S.C §§ 206-7, and 215(a)(2), by employing Plaintiff and the FLSA Class Members in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for weeks longer than 40 hours without compensating for work in excess of 40 hours per week at rates no less than oneand-a-half times their regular rates of pay. Defendants have acted willfully in failing to pay Plaintiff and the FLSA Class Members in accordance with the law.

VIII. COUNT II: VIOLATION OF NM WAGE LAW 39.

Plaintiff incorporates all allegations previously made in this Complaint.

40.

Plaintiff and the NM Class Members are entitled to unpaid overtime in an amount

equal to one-and-one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek pursuant to the formula outlined in N.M. Stat. Ann. § 50-4-22(D). During the relevant time period, Defendants violated and continue to violate NM Wage Law by employing employees and regularly and repeatedly failing to pay employees for all hours worked and pay overtime wages at a rate of at least one-and-a-half times their regular rates of pay. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiff and the NM Class Members have suffered and will continue to suffer from a loss of income and other damages. Plaintiff and the NM Class Members are entitled to their unpaid wages, an amount equal to twice their unpaid

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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wages, prejudgment interest, all costs in bringing this action, and all attorneys’ fees accrued that are recoverable under NM Wage Law. Moreover, Plaintiff requests that this lawsuit encompass all violations that occurred as a part of Defendants’ continued course of conduct regardless of the date on which they occurred.

IX. 41.

RELIEF SOUGHT

WHEREFORE, Plaintiff, individually and on behalf of the FLSA Class Members,

prays for relief against Defendants as follows in regards to his FLSA collective action claims: a.

For an Order pursuant to Section 16(b) of the FLSA finding Defendants liable for unpaid back wages due to Plaintiff (and those who may join in the suit) and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiff (and those who may join the suit);

b.

For an Order awarding Plaintiff (and those who may join in the suit) the costs of this action;

c.

For an Order awarding Plaintiff (and those who may join in the suit) attorneys’ fees;

d.

For an Order awarding Plaintiff (and those who may join in the suit) prejudgment and post-judgment interest at the highest rates allowed by law; and

e.

For an Order granting such other and further relief as may be necessary and appropriate.

42.

WHEREFORE, Plaintiff, individually and on behalf of the NM Class Members,

prays for relief against Defendants as follows in regards to his class action complaint: a.

For an Order Certifying the State Wage Law claims as Class Actions pursuant to Fed. R. Civ. P. 23, for designation of Plaintiff as Class

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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Representatives under NM Wage Law, and for designation of Plaintiff’s counsel as class counsel; b.

For Judgment that Defendants violated NM Wage Law by failing to pay Plaintiff and the NM Class Members overtime compensation;

c.

For an Order awarding Plaintiff and the NM Class Members all unpaid overtime compensations, an amount equal to twice their unpaid wages as liquidated damages, prejudgment interest and all available penalty wages under Wage Law;

d.

For all costs and attorneys’ fees incurred prosecuting this claim, as allowed by law; and

e.

For an Order granting such other and further relief as may be necessary and appropriate.

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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Respectfully submitted,

/s/ J. Derek Braziel J. DEREK BRAZIEL Co-Attorney in Charge Texas Bar No. 00793380 jdbraziel@l-b-law.com J. FORESTER Texas Bar No. 24087532 forester@l-b-law.com Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com

JACK SIEGEL Co-Attorney in Charge Texas Bar No. 24070621 jack@siegellawgroup.biz Siegel Law Group, PLLC 2820 McKinnon, Suite 5009 Dallas, Texas 75201 (214) 706-0834 phone (469) 339-0204 fax www.siegellawgroup.biz ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE This is the Original Complaint. Service of this Complaint will be made on Defendants with summons to be issued by the clerk according to the Federal Rules of Civil Procedure.

/s/ J. Derek Braziel J. DEREK BRAZIEL

ORIGINAL COLLECTIVE AND CLASS ACTION COMPLAINT

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DocuSign Envelope ID: 4707B8B2-EE52-4242-977F-95BC4A939F17

Case 2:17-cv-00493 Document 1-1 Filed 04/26/17 Page 1 of 1

NOTICE OF CONSENT TO BE A PARTY PLAINTIFF Fair Labor Standards Act of 1938, 29 U.S.C. 216(b) I hereby consent to be a party plaintiff seeking unpaid wages and overtime pay in the case in which this consent is filed. By joining this lawsuit, I designate the named plaintiff(s) in which this consent is filed, and his/her attorneys (and other persons those individuals designate as necessary) as my representatives to make all decisions on my behalf, to the extent permitted by law, concerning the method and manner of conducting the case including settlement, the entering of an agreement with Plaintiff’s counsel regarding payment of attorneys’ fees and court costs, and all other matters pertaining to this lawsuit. I further acknowledge that I intend for this consent to be filed in order to recover my overtime wages against my current/former employer whether in this action or in any subsequent action that may be filed on my behalf for such recovery, and this consent may be used in this case or in any subsequent case as necessary. For purposes of pursuing my unpaid wage and overtime claims I choose to be represented by Lee & Braziel, LLP, the Siegel Law Group PLLC, and other attorneys with whom they may associate.

Date:

Signature: Printed Name:

Case 2:17-cv-00493 Document 1-2 Filed 04/26/17 Page 1 of 1

CIVIL COVER SHEET

JS 44 (Rev. 11/15) 'LVWULFW RI &RORUDGR )RUP

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

Louie Deschamps, and all others similarly situated under 29 USC § 216 (b), (b) County of Residence of First Listed Plaintiff

DEFENDANTS

Nova Hardbanding, LLC, and Ken Bromley, individually,

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

J. Derek Braziel, Lee & Braziel, LLP, 1801 N. Lamar St., Suite 325, Dallas, Texas 75202, 214-749-1400

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) u 1

U.S. Government Plaintiff

u 3

Federal Question (U.S. Government Not a Party)

u 2

U.S. Government Defendant

u 4

Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State u 1

DEF u 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State

Citizen of Another State

u 2

u

2

Incorporated and Principal Place of Business In Another State

u 5

u 5

Citizen or Subject of a Foreign Country

u 3

u

3

Foreign Nation

u 6

u 6

IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT u u u u u u u

u u u u u

TORTS

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

u u u u u u u u u u

u u u u u u

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education

FORFEITURE/PENALTY

PERSONAL INJURY u 365 Personal Injury Product Liability u 367 Health Care/ Pharmaceutical Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: u 463 Alien Detainee u 510 Motions to Vacate Sentence u 530 General u 535 Death Penalty Other: u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition u 560 Civil Detainee Conditions of Confinement

u 625 Drug Related Seizure of Property 21 USC 881 u 690 Other

BANKRUPTCY u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157 PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

LABOR u 710 Fair Labor Standards Act u 720 Labor/Management Relations u 740 Railway Labor Act u 751 Family and Medical Leave Act u 790 Other Labor Litigation u 791 Employee Retirement Income Security Act

u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRS—Third Party 26 USC 7609

IMMIGRATION u 462 Naturalization Application u 465 Other Immigration Actions

OTHER STATUTES u 375 False Claims Act u 376 Qui Tam (31 USC 3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/ Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information Act u 896 Arbitration u 899 Administrative Procedure Act/Review or Appeal of Agency Decision u 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only) u 1 Original Proceeding

u 2 Removed from State Court

u 3

Remanded from Appellate Court

u 4 Reinstated or Reopened

u 5 Transferred from Another District (specify)

u 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Fair Labor Standards Act, 29 U.S.C. Section 201, et seq.

VI. CAUSE OF ACTION Brief description of cause:

"1 %PDLFU

Unpaid overtime wages claim.

u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE

CHECK YES only if demanded in complaint: u Yes u No JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ J. Derek Braziel

04/26/2017 FOR OFFICE USE ONLY RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE