United States District Court, W.D. Texas, San Antonio Division
DUSTIN MOORE, ROY LEWIS, JOSH BLASCHKE, JUSTIN BLASCHKE, JULIO MORENO, and JUSTIN HERRERA, each individually and on behalf of all others similarly situated, Plaintiffs,
PERFORMANCE PRESSURE PUMPING SERVICES, LLC and EPIC WIRELINE SERVICES, LLC. Defendant.
C. LAMBERTH, UNITED STATES DISTRICT JUDGE
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.
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
Mot. 4. While some plaintiffs were salaried and others were
hourly, plaintiffs here claim defendants' pay policies
failed to give them proper overtime
compensation. 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
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. A regular crew for Epic consisted of an
engineer, a lead wireline operator, and two wirelines
operators. Lane Decl. ¶ 6.
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.
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.
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.
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.
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 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.
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
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
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)).
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)
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
Reurged Motion for Leave to File Second Amended Complaint
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.
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
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. Case No. 5:16-cv-25, ECF No. 5.
Performance and Epic are not named defendants in
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.
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.
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.
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.
Motion for Summary Judgment
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
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