United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
Plaintiffs' Emergency Motion to Compel
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.
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.
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).
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 ...