United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Motion for Conditional
Class Certification and Notice. (Doc. No. 14.) After
considering the Motion, the responses thereto, and all
applicable law, the Court determines that the Motion should
be denied without prejudice to resubmission.
Michael Myers and Trever Balfour worked for Defendants
Superior Energy Services, Inc., d/b/a Superior Energy
Services of Delaware, Inc. (hereinafter “Superior
Energy Services”), and Wild Well Control, Inc. between
2011 and 2015. Plaintiff Myers worked as a reverse operator
and fishing tool supervisor, and Plaintiff Balfour worked as
a fishing tool supervisor. Plaintiffs allege that they are
employees who were misclassified as independent contractors.
As such, they have filed this collective action under the
Fair Labor Standards Act (FLSA) alleging that they are owed
have moved for conditional certification of a class
consisting of “[a]ll individuals who were employed by
Superior Energy Services, Inc., d/b/a Superior Energy
Services of Delaware, Inc. and/or Wild Well Control, Inc.,
f/k/a BTI Services, Inc. since April 15, 2013 as reverse unit
operators/supervisors, fishing tool operators/supervisors, or
in positions with similar job duties, who were paid a base
salary and a day-rate/job bonus with no overtime
compensation.” (Doc. No. 14 at 2.) Defendants oppose
conditional certification on any terms. (Doc. No. 15.)
Alternatively, Defendants request that certain limitations be
imposed on the proposed class. Id. Defendants
further request that, if the class is conditionally
certified, the content and procedure of the proposed notice
be revised. Id.
motions for collective action certification in FLSA cases,
the Fifth Circuit has affirmed district courts' use of
the lenient standard adopted by the United States District
Court for the District of New Jersey in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g.,
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-16
(5th Cir.1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The
Lusardi approach includes two steps: (1) the
plaintiff's motion for conditional certification, and (2)
the defendant's motion for decertification.
first stage, the Court must decide whether notice of the
action should be given to potential class members.
Id. at 1213-14. The court's decision at this
stage is usually based on the pleadings and affidavits that
have been submitted, and is made using a “fairly
lenient standard, [which] typically results in
‘conditional certification' of a representative
class.” Id. at 1214. A plaintiff may proceed
collectively only if the challenged conduct is a generally
applicable rule, policy, or practice. McKnight v.
D.Houston, Inc., 756 F.Supp.2d 794, 801 (S.D. Tex. 2010)
(quoting England v. New Century Fin. Corp., 370
F.Supp.2d 504, 507 (M.D. La. 2005)). Therefore, conditional
certification should be denied when the action arises from
circumstances purely personal to the plaintiff. Id.
order to obtain conditional certification, the plaintiff must
make a “minimal showing” that: (1) there is a
reasonable basis for crediting the assertions that aggrieved
individuals exist, (2) those aggrieved individuals are
similarly situated to the plaintiff in relevant respects
given the claims and defenses asserted, and (3) those
individuals want to opt in to the lawsuit. Aguirre v. SBC
Comms., Inc., No. H-05-3198, 2006 WL 964554, at *6 (S.D.
Tex. April 11, 2006). Conclusory allegations that other
employees are similarly situated are insufficient to justify
conditional certification. Vargas v. HEB Grocery Co.,
L.P., No. SA-12-CV-116-XR, 2012 WL 4098996, at *4 (W.D.
Tex. Sept. 17, 2012).
order to satisfy the third requirement, a plaintiff must show
not only that similarly situated persons exist, but also that
they seek to join the lawsuit. Davis v. Mostyn Law Firm,
P.C., No. 4:11-cv-2874, 2012 WL 163941, at *10 (S.D.
Tex. Jan. 19, 2012). Reliance on the plaintiff's
“own allegations that the putative class members exist
and together were the victims of a single decision, policy,
or plan is insufficient to meet [the] burden” of
showing “that the additional aggrieved persons exist
and want to join the lawsuit.” Simmons v. T-Mobile
USA, Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D.
Tex. Jan. 24, 2007). See also Morales v. Thang Hung
Corp., No. 4:08-2795, 2009 WL 2524601, at *3 (S.D. Tex.
Aug. 14, 2009) (concluding that class notice would not issue,
in part because plaintiff failed to show that similarly
situated persons would actually seek to join the lawsuit);
Detho v. Bilal, No. H-07-2160, 2008 WL 1730542, at
*5-6 (S.D. Tex. Apr. 10, 2008) (holding that plaintiff's
affidavit stating a belief that there are other employees who
may be interested was insufficient for conditional
proposed class definition includes alleged employees who are
not similarly situated, the Court has the power to modify an
FLSA collective action definition on its own. Dreyer v.
Baker Hughes Oilfield Operations, Inc., CIV. A.
H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec.11, 2008)
(citing Baldridge v. SBC Commc'ns, Inc., 404
F.3d 930, 931-32 (5th Cir. 2005)).
second stage of the Lusardi approach is usually
prompted by a defendant's motion for decertification
after some or all discovery has been completed. At that time,
a court considers additional evidence submitted by the
parties in determining whether to decertify the class on the
ground that its members are not similarly situated.
have not made a minimal showing that similarly situated
individuals wish to join the lawsuit. Plaintiffs' only
evidence is their own affidavits, in which they state that
they “believe” that their coworkers would be
“interested to learn” about the lawsuit. This
evidence is insufficient because a plaintiff may not rely on
his own allegations to show that similarly situated
individuals seek to join the lawsuit. Moreover, Plaintiffs
allege only that similarly situated individuals would be
“interested, ” not that they seek to join.
Because Plaintiffs were both named in the original Complaint,
and they have not ...