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Moore v. Performance Pressure Pumping Services, LLC

United States District Court, W.D. Texas, San Antonio Division

April 26, 2017

DUSTIN MOORE, ROY LEWIS, JOSH BLASCHKE, JUSTIN BLASCHKE, JULIO MORENO, and JUSTIN HERRERA, each individually and on behalf of all others similarly situated, Plaintiffs,




         Plaintiffs here seek to recover unpaid overtime wages and other damages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Before the Court is Plaintiffs' Motion [ECF No. 120] for Leave to File a Second Amended Complaint, Plaintiff Moore's Motion [ECF No. 127] for Summary Judgment, and the respective responses and replies. For the reasons articulated below, the Court will GRANT the Motion for Leave to File a Second Amended Complaint and DENY the Motion for Summary Judgment.


         Plaintiffs are former employees of defendants Performance Pressure Pumping Services, LLC and Epic Wireline Services, LLC, providers of on-site oil well pumping services. These services typically involved pumping fluid down the wellbore and preparing the wellbore by a process known as perforation in which explosives were used to prep the field for hydraulic fracturing. Plaintiffs acted as hands, operators, or wireline operators for defendants, performing essentially the same job.[1] Mot. 4. While some plaintiffs were salaried and others were hourly, plaintiffs here claim defendants' pay policies failed to give them proper overtime compensation.[2] Specifically, plaintiffs allege that defendants did not properly calculate operators' regular rate of pay for the purposes of overtime because they did not include bonuses. Summ. J. Mot. 4; Norton Dep. 68:8-15, ECF No. 127-2.

         Epic and Performance maintain offices in various areas throughout Texas and Louisiana. Lane Depo. 6. However, based on the testimony of Epic's corporate representative, operators and wireline operators generally had the same duties no matter the location. Norton Depo. 44. The same is true for engineers and supervisors; they generally had the same duties no matter the location. Id. Similarly, based on the testimony of Performance's corporate representative, hands and operators had the same duties. Id.[3] A regular crew for Epic consisted of an engineer, a lead wireline operator, and two wirelines operators. Lane Decl. ¶ 6.

         A regular pumping crew for Performance typically consisted of two people: an engineer/supervisor and an operator/hand. Broussard Depo. 35-37. An operator/hand mostly was concerned with pumping services, while an engineer/supervisor had more responsibilities running the jobsite. Ultimately, each employee assisted in fracking oil and gas wells and operating wire line equipment at the wells. The crew would travel to the wellsite together, and often one would operate a pump while the other would assist. Broussard Depo. 38. Depending on the employer and needs of the client/wellsite, a work crew would travel to a wellsite with either a pump truck, wireline truck, or Ford F-250 hauling a trailer carrying pipe, chemicals, explosives, or other necessary equipment. Lane Depo. 3. Wire line and pump trucks are 18-wheeler trucks weighing over 10, 000 pounds. Supervisors and engineers were sometimes directly provided the F-250 trucks. Broussard Depo. 38; Lane Depo. 44-45. Depending on the needs for the wellsite, supervisors would sometimes drive to a site simply to monitor the pump. Other times, supervisors would haul a trailer with pipe equipment for more prolonged work. Id. at 39. Depending on the wellsite and needs of the client, jobs could last up to a month and a half. Id. at 45. Once on location, the crew would often drop a trailer or other equipment before working with their clients to execute the particular well plan and other operations to facilitate fracking at the well. Id. For longer jobs, crews would lodge near the well at a campsite or hotel. Id. Depending on the needs of the job, crew members could use the Ford F-250's to haul equipment, to travel between job sites, to travel to/from lodging, to travel to a company store for additional equipment, or to run personal errands. Id.

         Since the circumstances and needs of the wellsites are were varied, all employees were required to have a commercial drivers' license because they may have been required to drive 18-wheelers to job sites. Similarly, employees may have been required to drive Ford F-250's to and from jobsites, depending on the requirements at the particular sites. Broussard Depo. 41. Thus, Performance employees were required to be able to operate both 18-wheelers and Ford F-250's to travel to, between, and from job sites. Id. at 41-43. Chad Hygh testified that he drove an F-250 “every day” to go to and from the wellsite, to get supplies, oil or rebuild kits, etc, and that he often drove the trucks on the interstate. Hygh Depo. [ECF No. 127-7] 73. Other employees drove vehicles less regularly.

         Plaintiffs contend that they were not adequately compensated at any time from May 26, 2012 to the present. Plaintiffs filed this collective action on May 26, 2015. On August 24, 2015, Judge Pitman conditionally certified two classes of individuals employed by Epic since May 26, 2012: 1) salaried hands, operators, or wireline operators, and 2) hourly hands, operators, or wireline operators. ECF No. 21. On January 11, 2016, Judge Pitman conditionally certified all salaried hands, operators, or engineers who were employed by Performance since May 26, 2012. ECF No. 65. In that order, Judge Pitman also directed the parties to confer and agree on a modified scheduling order that “accommodates the opt-in period but does not disrupt the dispositive motions deadline or the trial date.” Id. at 6, n. 1.The parties then submitted a new scheduling order requiring additional parties to be joined on or before March 3, 2016. Unopp. Mot. Extend Deadlines in Scheduling Order [ECF No. 82]. The discovery deadline was set at March 31, 2016. Id.

         On February 16, 2016, plaintiffs moved for leave to file a second amended complaint adding some Performance officers-Antoine Broussard, Jr., James Rapattoni, William Rigby, Sr., and Terry Lane-new defendants. ECF No. 86. Judge Pitman denied that motion on March 7, 2016 for two reasons. First, adding new defendants would cause undue delay because the additional defendants would need to be served and participate in discovery. Order [ECF No. 98] 3 (“When the Court directed the parties to modify the scheduling order, it did not intend to give Plaintiffs an opportunity to join new defendants at the eleventh hour.”). Second, Judge Pitman determined that plaintiffs failed to explain why they had waited so long to seek leave to amend, noting that the original deadline for amending pleadings to joining new parties was November 23, 2015 and that plaintiffs knew as early as October 2015 that these new defendants had been corporate officers. Id.

         On March 30, 2016, this case was reassigned to Judge Royce C. Lamberth. ECF No. 104. Defendants moved to continue the trial setting and discovery deadlines[4] on the basis that defendants had been “unable to take the depositions of any witnesses in this case” due to scheduling conflicts and differences among the 58 opt-in class members. Mot. to Continue [ECF No. 107] 2. This Court granted the motion, extending discovery and motion deadlines by 120 days and vacating the original trial date. ECF No. 116. This extension put the new discovery deadline at July 29, 2016 and the new dispositive motions deadline at August 16, 2016.

         On May 13, 2016, plaintiffs filed a “Reurged” Motion [ECF No. 120] for Leave to File a Second Amended Complaint. Plaintiffs seek leave to amend its complaint and add the four defendants that were denied by Judge Pitman's March 7 order.

         On July 18, 2016, plaintiffs filed a Motion [ECF No. 127] for Summary Judgment. Plaintiffs seek summary judgment regarding the applicability of the FLSA, arguing that there is no exemption that would excuse defendants from paying overtime as required by the FLSA. Further, plaintiffs seek summary judgment regarding the number of hours worked by plaintiffs within the time period relevant to this action. Finally, plaintiffs argue that defendants cannot raise a genuine issue of material fact as to defendants' failure to include bonuses into the calculation of regular pay rates for the purposes of overtime. Accordingly, plaintiffs have moved for summary judgment that defendants failed to pay overtime compensation for all hours worked in excess of forty (40) per week.


         Federal Rule of Civil Procedure 15(a)(2) states that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Leave to amend “is not automatic.” Matter of Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996). Rather, it is within the Court's discretion to deny leave to amend if there is “a substantial reason to do so.” Id. In determining whether there is such a reason, “the court may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.” Id. 314-15 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         When a party moves for summary judgment, the reviewing court shall grant the motion “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on questions of fact must be resolved in favor of the party opposing summary judgment. Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (citation omitted).

         The FLSA requires employers to compensate employees engaged in commerce for all hours worked over forty each week at the rate of one and one-half times their regular rate. 29 U.S.C. § 207(a)(1). The statute also specifically exempts certain employers and/or employees from its overtime requirements. Id. § 213. The plaintiff bears the burden of the elements of an FLSAS claim, such as whether an employee-employer relationship existed or that they worked hours in excess of 40 hours in a work week. However, an employer claiming an exemption bears the burden of proving its exempt status, and exemptions are to be narrowly construed against the employer. Cleveland v. City of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). Exemptions under the FLSA are construed narrowly against the employer, and the employer bears the burden to establish a claimed exemption. Barefoot v. Mid-America Dairymen, Inc., No. 93-1684, 1994 WL 57686, at *2 (5th Cir. Feb.18, 1994) (per curiam) (citing Levinson v. Spector Motor Serv., 330 U.S. 649, 678, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)).

         IV. ANALYSIS

         a. Reurged Motion for Leave to File Second Amended Complaint

         Plaintiffs argue that Judge Pitman's rationale for denying the prior motion for leave to file no longer exists because the trial date has been stayed indefinitely. Reurged Mot. [ECF No. 120] 1. Plaintiffs seek to add individual officers of Performance-Antoine Broussard, Jr., James Rapattoni, William Rigby, Sr., and Terry Lane-as defendants, claiming that these individual officers were “employers” under the FLSA. Reurged Mot. 3; Proposed Second Am. Compl. [ECF No. 86-1] 6-7. According to plaintiffs, they were unable to ascertain whether these officers qualified as “employers” based on defendants' initial disclosures. Reurged Mot. 4. Rather, plaintiffs claim that their investigations during discovery have only now given “sufficient factual basis to add them to the case as individual Defendants.” Id.

         Defendants object, arguing that the reurged motion is a bad faith attempt to escape the effects of missing a deadline. Resp. [ECF No. 122] to Reurged Mot. 5. In support, defendants argue that plaintiffs opposed the extension and have no produced a single document in this case. Id. Defendants argue that plaintiffs should not now be able to attempt to use the extension for their benefit. This Court disagrees. While plaintiffs have clearly taken alternative positions, that does not amount to bad faith. That plaintiffs opposed the extension does not preclude them from filing a motion to reconsider in light of the shifting circumstances surrounding this case.

         Defendants also attempt to show bad faith by pointing to a similar case: John Newton, et al. v. Epic Wireline Services, LLC, et al, Case No. 5:16-cv-25-XR (W.D. Tex. 2016). Plaintiffs' original complaint in Newton was filed on January 12, 2016, naming Performance and Epic as defendants. Case No. 5:16-cv-25, ECF No. 1. On March 16, 2016, after Judge Pitman denied the original motion for leave to file a second amended complaint, the Newton plaintiffs amended their complaint naming Broussard, Rapattoni, Wigby, and Lane and removing Performance and Epic as defendants.[5] Case No. 5:16-cv-25, ECF No. 5. Performance and Epic are not named defendants in Newton.

         Defendants argue that this amounts to a bad faith attempt to circumvent Judge Pitman's March 7 order, and that there is no reason defendants did not seek information concerning these defendants earlier in the lawsuit. Plaintiffs counter that they only developed a reasonable belief that these defendants were “employers” under the FLSA during the discovery process, and that defendants' initial disclosures did not even include James Rapattoni or Terry Lane as persons who had knowledge about facts relevant to the case. Thus, at least with respect to Rapattoni or Lane, plaintiffs could not have sought information, or had a reasonable belief as to their roles as “employers” under the FLSA, until later in the discovery process. However, Broussard and Rigby were included in initial disclosures, and plaintiffs have still failed to explain why they did not seek leave to amend sooner than March 2016, only a few months before trial. Had the trial setting here not been vacated, this Court would be hesitant-as Judge Pitman was-to allow leave to add additional defendants and unduly delay trial. However, there is no indication that the requests here, or the filings in Newton, were made in bad faith.

         As defendants note, this case has been ongoing since May 2015, and the initial deadline to amend pleadings and add parties passed in November 2015. Id. Indeed, while Judge Pitman allowed modification of the scheduling order, he “did not intend to give Plaintiffs an opportunity to join new defendants at the eleventh hour.” ECF No 98. But defendants then requested this Court vacate the trial setting and extend discovery and motions deadlines, which this Court granted. ECF No. 116. In their request for continuance, defendants stated they needed additional time for depositions and in-depth review of the 58 opt-in class members, as well as time to develop their positions and brief issues such as whether plaintiffs are sufficiently similarly situated to warrant a collective action. ECF No. 107. Further, after the vacatur of the trial setting and extension of deadlines, this Court granted leave for defendants to file a Second Amended Answer, ECF No. 114, and Third Amended Answer, ECF No. 115.

         This case is still developing; the parties are still developing their positions, and it seems clear to this Court that this case is not close to being ready for trial. Addition of defendants at this time would not be at the “eleventh hour, ” as it was when Judge Pitman denied leave to file. Accordingly, this Court finds that the rationale underlying Judge Pitman's March 7 order no longer exists. Finally, the interests of judicial economy will be served by allowing plaintiffs to amend their complaint and to pursue all of their claims here, rather than in Newton. This Court therefore determines that the interests of justice are served by allowing plaintiffs the opportunity to file a second amended complaint.

         The Court stresses that it is incredibly hesitant to reconsider previous motions, particularly those of another judge. It is unlikely that similar requests, particularly requests to further amend the pleadings here, will be viewed favorably. Further, attempts by either parties to extend deadlines or circumvent scheduling orders will be viewed with similar skepticism. Parties would do well to strictly adhere to the scheduling orders going forward. This Court is unlikely to be sympathetic to any conduct that could further delay the progression of this case.

         b. Motion for Summary Judgment

         At the outset, the Court notes that plaintiff filed a motion [ECF No. 126] for leave to exceed normal page limitations for the motion for summary judgment. Defendant also filed an unopposed motion [ECF No. 129] for an extension of time to file their response to plaintiffs' motion for summary judgment. The Court will GRANT the motion for leave to exceed page limitations. The Court will also GRANT nunc pro tunc the unopposed motion in order to consider defendant's response.

         Plaintiffs move for summary judgment on three key issues. First, they claim there is no issue of material fact as to the applicability of any FLSA exemption which would excuse Epic or Performance from compensating operators/hands or supervisors/engineers for hours worked in excess of 40 hours in a workweek. Second, plaintiffs claim there is no issue of material fact as to the number of hours worked within the relevant timeframe in this case. Finally, plaintiffs claim there is no issue of material fact regarding Epic or Performance's inclusion of bonuses paid to plaintiffs in the calculation of their regular rate for the purposes of ...

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