United States District Court, N.D. Texas, Dallas Division
QUINCY MILES, On Behalf of Himself and All Others Similarly Situated, Plaintiff,
ILLINI STATE TRUCKING CO., Defendant.
MEMORANDUM OPINION AND ORDER
A FITZWATER, UNITED STATES DISTRICT JUDGE
putative collective action to recover overtime pay and unpaid
wages, the court addresses plaintiff's motion for
conditional certification and notice to potential class
members. For the reasons that follow, the court largely
grants the motion, except for sustaining certain objections
to the proposed notice and requested discovery.
Quincy Miles (“Miles”) brings this putative
collective action on behalf of himself and all others
similarly situated against defendant Illini State Trucking
Co. (“Illini”). He sues under 29 U.S.C. §
216(b), a provision of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
to recover overtime pay and unpaid wages. Illini is a
transportation company serving, among others, the energy
industry. Miles is a former Illini employee who worked as a
well site coordinator.
well site coordinators are responsible for
“inventorying and keeping track of sand, inspecting
equipment for sand leaks, reporting conditions to the
Terminal Manager, recording the delivery of sand and
placement in designated bins, hooking up hoses, communicating
with dispatchers regarding levels of sand, and blowing off
sand.” Miles Decl. ¶ 3. As a well site
coordinator, Miles was paid a fixed salary of approximately
$1, 250 per week and a per diem of $45.00.
alleges that he often worked 16 to 20 hours per day, six to
seven days per week, without receiving a premium for overtime
hours. He asserts that, in one instance, he worked 90 days in
a row without a day off; in another instance, on a site in
Colorado, he worked “nearly 5 months” without a
day off, Miles Decl. ¶ 5; and, at a facility in
Mississippi, he worked for more than three months without a
day off. According to the declarations of other Illini well
site coordinators, they worked similar hours for which they
were paid a fixed salary and a per diem rate, but not
overtime. In addition to the five total declarants who
submitted declarations, approximately eight other Illini
employees are suggested as potential plaintiffs.
moves the court to conditionally certify this collective
action and approve court-facilitated notice to a class
defined as “All persons employed by Illini State
Trucking, Co. as Sand Coordinators at any time during the
last three years.” P. Mot. 5.
court first sets out the legal standard for conditional
Section 216(b) of the FLSA authorizes a plaintiff to bring a
collective action on behalf of similarly-situated persons,
provided that any person who desires to become a part of the
collective action files a written consent in the court. When
a plaintiff seeks to bring a collective action, a district
court can in its discretion facilitate notice to potential
plaintiffs of their right to opt-in to the suit.
Behnken v. Luminant Mining Co., 997 F.Supp.2d 511,
515 (N.D. Tex. 2014) (Fitzwater, C.J.) (citation omitted)
(citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S.
165, 169 (1989); Barnett v. Countrywide Credit Indus.,
Inc., 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002)
(Lynn, J.) (applying Hoffman-La Roche to FLSA
context)). “Although the Fifth Circuit has declined to
adopt a specific test to determine when courts should
exercise their discretion to facilitate notice or certify a
collective action, this court has adopted the prevailing
two-stage test.” Id. (citing Aguilar v.
Complete Landsculpture, Inc., 2004 WL 2293842, at *1
(N.D. Tex. Oct. 7, 2004) (Fitzwater, J.) (adopting prevailing
standard)); see also Sandoz v. Cingular Wireless
LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008) (noting that
collective actions are “typically” analyzed this
way); Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1216 (5th Cir. 1995) (declining to adopt specific standard,
but finding no abuse of discretion where district court
applied prevailing standard), overruled on other grounds
by Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003); Valcho v. Dall. Cnty. Hosp. Dist., 574
F.Supp.2d 618, 621-22 (N.D. Tex. 2008) (Fitzwater, C.J.)
(reaffirming decision in Aguilar).
Under this test, the court first determines whether
plaintiffs have provided sufficient evidence of
similarly-situated potential plaintiffs to warrant
court-facilitated notice. If they have, the court
conditionally certifies the class and facilitates notice to
the potential plaintiffs. Second, the court reexamines the
class after notice, time for opting-in, and discovery have
taken place, typically in response to defendant's motion.
If the court finds that the class is no longer made up of
similarly-situated persons, it decertifies the class. To
establish that employees are similarly situated, a plaintiff
must show that they are similarly situated with respect to
their job requirements and with regard to their pay
provisions. The positions need not be identical, but similar.
Id. at 516 (citations and internal quotation marks
The court is generally more lenient with regard to
substantial similarity during the notice stage of the
analysis, but notice is by no means mandatory. The relevant
inquiry in each particular case is whether it would be
appropriate to exercise the court's discretion to
facilitate notice. A primary reason for exercising this
discretion is to ensure that the joining of other parties
occurs in an orderly, sensible, efficient and proper way. The
use of court-facilitated notice can ensure that information
is timely, accurate, and informative, and it can also guard
against abuse by misleading communications. The parties and
the court can benefit from settling disputes about the
content of the notice before it is distributed, because it
may avoid the need to cancel consents obtained in an improper
Id. (citations, internal quotation marks, brackets,
and ellipsis omitted).
But before granting court-facilitated notice, the court
should satisfy itself that there are other similarly-situated
employees of [Illini] who would desire to opt-in to the
lawsuit. This is because courts have a responsibility to
avoid the stirring up of litigation through unwarranted
solicitation. The court must ensure that an employer is not
unduly burdened by a frivolous fishing expedition.
Id. (bracketed material added; citations, internal
quotation marks, other brackets, and ...