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Velasquez v. WCA Management Company, L.P.

United States District Court, S.D. Texas, Houston Division

April 20, 2017

JOSE VELASQUEZ, et al, Plaintiffs,
v.
WCA MANAGEMENT COMPANY, L.P., Defendant.

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above-referenced cause is Plaintiffs' Emergency Motion to Compel List of Potential Opt-Ins (“Emergency Motion to Compel”). Doc. 91. Defendant responded by filing its Response in Opposition to Plaintiffs' Emergency Motion to Compel List of Potential Opt-Ins and Alternative Motion Requesting 28 U.S.C. § 1292(b) Certification. Doc. 95. After considering the parties' filings, the relevant law, and for the reasons outlined below, the Court grants Plaintiffs' Emergency Motion to Compel and denies Defendant's Alternative Motion Requesting 28 U.S.C. § 1292(b) Certification.

         I. Background

         This case arises from Plaintiffs' Fair Labor Standard Act (“FLSA”) overtime claims. See Docs. 1, 97. The question raised by the pending motion is the scope of the conditional class that this Court certified in its August 23, 2015 Opinion and Order. Doc. 76.

         Soon after this Court granted Plaintiffs' Motion for Conditional Certification, Doc. 11, Plaintiffs requested a list of Defendant's current and former employees, Doc. 91 at ¶ 4. According to Plaintiffs, they acquiesced to Defendant's request for an extension of the deadline to provide the list of potential opt-ins only to have Defendant subsequently “refuse[] to produce the list.” Doc. 91 at ¶¶ 5-6.

         Defendant's non-compliance precipitated Plaintiffs' Opposed Emergency Motion to Compel List of Potential Opt-Ins (“First Motion to Compel”). Doc. 79. This Court referred that motion to Magistrate Judge Stacy on September 13, 2016, and she granted it a week later. Docs. 82, 86. Pursuant to Judge Stacy's Order, Defendant had seven days to “provide Plaintiffs with a list, in usable electronic format, of Defendant's current and former employees that fall within the conditional class.” Id. at 1.

         In response, Defendant produced a partial list of potential opt-ins on September 28, 2016. Doc. 91 at ¶ 8. After Plaintiffs learned that this list only included the names of employees from one of Defendant's locations, it filed the instant Emergency Motion to Compel. Id. ¶ 9. Plaintiffs argue that the certification covers all of Defendant's employees nationwide and seek a list of the nearly 1, 000 employees that exist and are members of that conditional class. Id. ¶ 12. Defendant disputes the breadth of the certification, arguing that the class this Court actually certified only encompasses residential drivers and helpers who were employed at Defendant's Highway 6 location. Doc. 95.

         II. Plaintiffs' Emergency Motion to Compel

         Defendant is correct to note that this Court explicitly declined to conditionally certify the “very broad” proposed class contained in Plaintiffs' original and amended complaints. See Docs. 76 at 3 n.5, 95 at 5. That proposed class called for certification of:

All persons who, at any time during the three (3) years immediately preceding the filing of this lawsuit, worked at any business that was owned, operated, and/or acquired by Defendant, who were not paid overtime at a rate of one and one-half times their regular rate for hours worked in excess of forty (40) per week.

Docs. 1 at ¶ 34, 63-1 at ¶ 58. Instead, the Court certified the class as described in Plaintiffs' Motion for Class Certification, which was substantially more limited: “All individuals, who at any point, during the past three years prior to the filing of this lawsuit, worked for Defendant as drivers or driver's helpers and who did not receive overtime pay.” Doc. 76 at 3.

         To the extent that Plaintiffs' motion seeks to compel a list of all potential opt-ins that fall within the class described in their complaints rather than the one described in their Motion for Class Certification, it is denied. The Court was clear that the certified class was limited to driver's and driver's helpers who did not receive overtime pay at any point in the past three years prior to the filing of the lawsuit. Id. Plaintiffs' attempt to ensnare “all persons” who “worked at any business that was owned, operated, and/or acquired by Defendant” is far too broad because it ignores the FLSA's requirement that the class members must be similarly situated and is not supported by the record. However, because the limited class approved for certification by this Court does not clearly delineate any geographic or employee-classification limitations-the main points of contention between the parties now-the Court will address the parameters of Plaintiffs' class in full at this juncture.

         “[G]eographic commonality is not necessary to meet the ‘similarly situated' requirement for a FLSA collective action.” Vargas v. Richardson Trident Co., CIV.A. H-09-1674, 2010 WL 730155, at *10 (S.D. Tex. Feb. 22, 2010) (citing Sedtal v. Genuine Parts Co., Civ. A. No. 1:08- CV-413-TH, 2009 WL 2216593, at *5 (E.D. Tex. July 23, 2009); Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 539-40 (S.D. Tex. 2008)). Nevertheless, “FLSA violations at one of a company's multiple locations generally are not, without more, sufficient to support company-wide notice.” Rueda v. Tecon Services, Inc., CIV.A. H-10-4937, 2011 WL 2566072, at *4 (S.D. Tex. June 28, 2011) (collecting cases). Rather, the focus is on whether “a common policy, plan, or practice demonstrates a similar factual setting for purposes of showing workers are ‘similarly situated.'” Vargas, 2010 WL 730155, at *9-10 (citing Falcon, 580 F.Supp.2d at 534-35; Sedtal, 2009 WL 2216593, at *5).

         Here, the record indicates that Defendant's job classifications are company-wide. Doc. 64-5 at 9. There is also no indication from the allegations and affidavits that the improper pay practices were limited to a specific type of driver or helper or to a single WCA location. See Docs. 11-1-2, 29, 35/39, 36, 42. Indeed, the affidavits state that the drivers and helpers worked on both commercial ...


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