United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
date, the Court considered the status of the above captioned
case. There are currently three pending
motions-Plaintiff's Motion to Decertify the Conditional
Class (Docket no. 91), Defendant's Motion for Attorney
Fees (Docket no. 94), and Plaintiffs' Motion for
Reconsideration (Docket no. 98). The second and third motions
derive from the same underlying dispute and will be discussed
careful consideration, the Court DENIES Plaintiff's
Motion to Decertify (Docket no. 91). The Court GRANTS IN PART
Defendant's Motion for Attorney Fees (Docket no. 94) and
GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for
Reconsideration (Docket no. 98).
Michael Espinosa filed his Complaint on October 12, 2015,
alleging violations of the Fair Labor Standards Act, 29
U.S.C. §§ 201, et seq. Docket no. 1 at 1.
Espinosa was employed as a dispatcher for Defendant Stevens
Tanker Division, LLC (“Stevens”). He claims his
duties included answering phone calls, informing drivers of
dispatch sites, recording information from drivers who were
present at job sites, and other office tasks. Docket no. 20
at 2. He alleges that he worked a schedule of “one week
on and one week off” and that during the
“on” weeks he regularly worked approximately 84
hours a week. Docket no. 1 at 3. He claims he was improperly
classified as an exempt employee and did not receive overtime
pay for the hours he worked in excess of forty per week.
Id. The Complaint states that Espinosa brings his
claim “on behalf of all similarly situated present and
former employees of Defendant who were either misclassified
and/or not properly paid for all overtime due and/or not paid
for all hours worked.” Id.
August 5, 2016, this Court entered an Order granting in part
and denying in part Plaintiff's Motion for Conditional
Class Certification. Docket no. 40. The Court granted initial
conditional certification of a class composed of all past or
present salaried dispatchers who worked for Defendant any
time since October 12, 2012, at any of Defendant's
locations, who were not paid overtime compensation. The Court
also ordered Stevens to produce a list-in electronic
format-of the name, last known physical address, last known
email address, and last four digits of social security number
of all current and former employees in the class as granted
above within fourteen days of the Order. Upon receipt of the
list, Plaintiff was ordered to send a notice to potential
class members with a date-specific deadline for opting-in
that is sixty days from the date of the mailing of the
notices. Counsel for both parties were ordered to confer
regarding the content of the notice and notify the Court in
the case of any disputes.
this order addresses Plaintiffs' opposed Motion to
Decertify the Conditional Class, in which Plaintiffs seek
decertification of their own class because “in
reviewing the potential claims of numerous opt-ins, it is
apparent that their claims are not the same or similar and/or
their work situations varied greatly from [Espinosa].”
Docket no. 91 at 2.
The Sanctions Order
January 20, 2017, Stevens filed a Motion to Void Opt-in
Consents (“motion to void”). Docket no. 69. The
thrust of the motion was that Class Counsel sent out notices
to potential opt-in plaintiffs that deviated from the agreed
upon notice in terms of substance, form, and frequency.
See generally id. At a January 25 hearing, the Court
heard limited argument on this motion. The Court advised the
parties that it was taking the matter under consideration and
that if indeed Class Counsel engaged in sanctionable conduct,
the innocent opt-ins would not be punished by having their
consent forms stricken. To this extent, the Court denied the
motion to void. Class Counsel did not file a response to this
motion either before the hearing or after the hearing.
February 7, the Court issued an order denying Stevens'
Motion to Void but sanctioning class counsel. Docket no. 74.
The sanctions order summarizes the conditional certification
order. Id. at 3 (discussing Docket no. 40). As the
Court stated in the sanctions order, the certification order
made clear that the Court contemplated that only one notice
be sent. Id.; see also Docket no. 40 at 8.
With this background, the Court stated:
Despite the Court's Order and the parties' agreement,
Class counsel issued four notices. Further, as indicated
above, Class Counsel deviated from the agreed upon language
of the Notice and included statements that would mislead the
recipient to infer that the Court was mandating that they
join the lawsuit, or that the Defendant was providing
incorrect addresses in an effort to dissuade them from
joining the lawsuit. Just as importantly Class counsel
violated his duty as an officer of the Court to be candid and
cooperative when possible. The Court needs parties to engage
in cooperative behavior when possible to achieve a
“just, speedy, and inexpensive determination” of
the case. See Fed. R. Civ. P. 1.
This Court does not sanction Class counsel for violation of
Rule 1. Nor does the Court grant Stevens' request to
strike the opt-in members. This remedy would serve only to
sanction innocent individuals who were not aware of the
parties' agreed upon notice. The Court, however, does
sanction Class counsel under the Court's inherent
authority for acting in bad faith. “It is well-settled
that a federal court, acting under its inherent authority,
may impose sanctions against litigants or lawyers appearing
before the court so long as the court makes a specific
finding that they engaged in bad faith conduct.” In
re Yorkshire, LLC, 540 F.3d 328, 332 (5th Cir. 2008).
Class counsel was aware of the Court's Order authorizing
one notice, never sought clarification of the Order, reached
an agreement with counsel for Defendant as to the form of the
Notice, and then proceeded to issue four notices that
deviated from the agreed upon form. The last two notices
proceeded to give the reader the impression that the Court
had an opinion as to the merits of the case. The Court
advised Class counsel it was taking under consideration what,
if any, sanctions should be imposed, offered Class counsel an
opportunity to explain his conduct, and no satisfactory
explanations were given.
Docket no. 74 at 3-4 (footnotes omitted). On this reasoning,
the Court sanctioned Class Counsel as follows: “It is
ORDERED that should Class counsel be successful in recovering
a settlement or judgment in this case, neither he nor his law
firm may recover any attorney's fees for the prosecution
of any of the opt-in plaintiffs who signed their opt-in forms
after receiving the second, third or fourth notice. It is
further ORDERED that Class Counsel pay the reasonable
attorney's fees incurred by Defendant for their filing of
its Motion to Void Opt-In Consents (docket no. 69).”
Id. at 4.
Plaintiffs' Motion to Decertify
Court's previous certification order summarized the
applicable law as follows:
29 U.S.C. § 216 [of the FLSA] permits an employee to
bring an action against an employer “[on] behalf of
himself . . . and other employees similarly situated.”
Unlike a Rule 23 class action, in which plaintiffs “opt
out” of the class, a § 216 plaintiff must
“opt in” to become part of the class.
See Fed. R. Civ. P. 23; Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1212 (5th Cir. 1995). Accordingly,
the method adopted by this Court for determining whether to
certify a collective action under § 216(b)-the
Lusardi two-tiered approach-involves conditional
certification, allowing the plaintiff to notify potential
members of the action, followed by a factual determination at
a second stage as to whether the putative class members are
similarly situated. Lusardi v. Xerox Corp., 118
F.R.D. 351 (D. N.J. 1987); Mooney, 54 F.3d at
In the first stage, called the notice stage, the district
court must make an initial determination whether notice of
the action should be sent to potential class members.
Lusardi v. Xerox Corp., 118 F.R.D. at 351;
Mooney, 54 F.3d at 1213. This determination is based
solely on the pleadings and affidavits. The pleadings and
affidavits must make a preliminary factual showing that a
similarly situated group of potential plaintiffs exists.
Trezvant v. Fid. Employer Servs. Corp., 434
F.Supp.2d 40, 43 (D. Mass. 2006). The standard is a lenient
one typically resulting in conditional certification of a
representative class to whom notice is sent and whose members
receive an opportunity to opt in. “The decision to
create an opt-in class under § 216(b), like the decision
on class certification under Rule 23, remains soundly within
the discretion of the district court.” Hipp v.
Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th
Cir. 2001); see U.S.C. § 216(b);
Mooney, 54 F.3d at 1213-14.
Once conditional certification is granted, the case proceeds
through discovery as a representative action.
Mooney, 54 F.3d at 1214. Upon completion of
discovery, the defendant may file a motion for
decertification. Id. At this second stage of the
analysis, the district court should make a factual
determination as to whether the putative class members are
similarly situated. Id. If so, then the
representative action may proceed; if not, then the class
should be decertified, the opt-in plaintiffs dismissed, and
the class representatives should be allowed to proceed on
their individual claims. See Johnson v. TGF Precision
Haircutters, Inc., 319 F.Supp.2d 753, 754-55 (S.D. Tex.
2004). . . .
A finding that employees are similarly situated does not
require that the employees work in identical positions.
Mateos v. Select Energy Services, LLC, 977 F.Supp.2d
640, 643-45 (W.D. Tex. 2013) (citing Walker v. Honghua
Am., LLC, 870 F.Supp.2d 462, 468 (S.D. Tex. 2012)).
However, to satisfy the “similarly situated”
standard, a plaintiff must provide “substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan infected by
discrimination.” Mooney, 54 F.3d at 1214 n. 8
(quoting Sperling v. Hoffmann-La Roche, Inc., 118
F.R.D. 392, 407 (D. N.J. 1988)). Furthermore, the class
member representatives “must be similarly situated in
terms of job requirements and similarly situated in terms of
payment provisions.” Ryan v. Staff Care, Inc.,
497 F.Supp.2d 820, 824-25 (N.D. Tex. 2007). In other words,
while “[s]light differences in job duties or functions
do not run afoul of the similarly situated requirement,
” Tolentino v. C & J Spec-Rent Servs.,
Inc., 716 F.Supp.2d 642, 651 (S.D. Tex. 2010),
“[i]f the job duties among putative class members vary
significantly, then class certification should be
denied.” Villarreal v. St. Luke's Episcopal
Hosp., 751 F.Supp.2d 902, 918 (S.D. Tex. 2010).
Docket no. 40 at 3-4 (footnote original, some alterations
arrived at the second stage of the Lusardi approach,
the Court must now make the factual determination of whether
the opt-in plaintiffs are similarly situated, which requires
the Court to examine three factors: “(1) the disparate
factual and employment settings of the individual plaintiffs;
(2) the various defenses available to defendant which appear
to be individual to each plaintiff; and (3) fairness and
procedural considerations.” Clark v. Centene Co. of
Tex., L.P., 44 F.Supp.3d 674, 688 (W.D. Tex. 2014);
Roussell v. Brinker Intern., Inc., 441 F. App'x.
222, 226 (5th Cir. 2011); Mooney, 54 F.3d at 1214.
District courts in the Fifth Circuit have repeatedly stated
that plaintiffs need only be similarly situated, not
identically situated. See, e.g., Falcon v.
Starbucks Corp., 580 F.Supp.2d 528, 534 (S.D. Tex. 2008)
(“Courts have repeatedly stressed that Plaintiffs must
only be similarly-not identically-situated to proceed
turning to the three-factor “similarly situated”
inquiry, the Court briefly notes the procedural oddity of
Plaintiffs' motion. The case law speaks unambiguously in
terms of a defendant's ability to seek
decertification at the second stage of the Lusardi
analysis. See, e.g., Valdez v. Calton Management
LLC, No. SA-13-CA-865-FB, 2015 WL 12552024, at *2 (W.D.
Tex. Sept. 15, 2015) (“The [conditional certification]
motion is granted subject to the Court revisiting the issue
of certification should the defendants file a motion to
decertify the class once discovery is complete. McPherson
v. LEAM Drilling Sys., LLC, 2015 WL 1470554 at *2 (S.D.
Tex. Mar. 30, 2015). Even after a court has denied a motion
to decertify, the issue may be revisited as the case
progresses. Id.”). Yet in this case, it is the
plaintiffs-not the defendant- who have moved to decertify the
conditional class, and the defendant opposes this request.
Plaintiffs identify no cases in which a conditionally
certified class moves to decertify itself. Stevens identifies
two such cases, but both present issues distinct from the one
here-namely, a contested question of full decertification at
the opt-ins' own request. As a result of this strange
posture, the parties' positions from the conditional
certification stage have effectively flipped- previously,
Plaintiffs argued in favor of certification and
Stevens argued against it. With this odd procedural
posture in mind, the Court assumes that plaintiffs are able
to request decertification of their own class and that the
legal standard governing a defendant's motion to
decertify also applies when a plaintiff brings the same
There are no disparate factual and employment settings of the
individual plaintiffs that warrant decertification.
majority of Plaintiffs' motion to decertify is a
recitation of details that Plaintiffs argue show disparate
factual and employment settings of the individual plaintiffs.
These facts are also relevant to the second factor, which
involves Stevens' defense of the administrative
exemption. On both points, Plaintiffs assert that: (1) the
opt-ins performed different job duties; (2)
“[d]efendant had two separate district offices and each
office worked under different management”; (3) some
dispatchers worked under a dispatch supervisor while others
did not; and (4) some dispatchers were actually ...