Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Biller v. RMCN Credit Services, Inc.

United States District Court, E.D. Texas, Sherman Division

May 3, 2017

NATHAN BILLER, INDIVIDUALLY AND ALL OTHERS SIMILARLY SITUATED
v.
RMCN CREDIT SERVICES, INC., DOUGLAS PARKER, JULIE PARKER

          NOWAK JUDGE.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On April 3, 2017, the report of the Magistrate Judge (Dkt. #31) was entered containing proposed findings of fact and recommendations that Named Plaintiff Nathan Biller's, on behalf of himself and all others similarly situated, First Stage Motion for Notice to Potential Plaintiffs and Conditional Certification (Dkt. #18) be granted. Having received the report and recommendation of the Magistrate Judge (Dkt. #31), having considered Defendants RMCN Credit Services, Inc.'s, Douglas Parker's, and Julie Parker's timely filed objections (Dkt. #32) and Plaintiff Nathan Biller's Response to Defendants' Objection to the Magistrate Judge's Report and Recommendation (Dkt. #33), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #31) as the findings and conclusions of the Court.

         RELEVANT BACKGROUND

         The underlying facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety (see Dkt. #31). Accordingly, the Court sets forth herein only those facts pertinent to Plaintiff's objections.

         Named Plaintiff Nathan Biller alleges Defendant RMCN Credit Services, Inc. (also known as “Repair My Credit Now”), a credit repair company with offices in McKinney, Texas, employed Plaintiff as an “hourly-paid, nonexempt employee” from April 2013 to June 2014 (Dkt. #1). Plaintiff further alleges Douglas and Julie Parker founded Repair My Credit Now and directed its business operations during the period relevant to Plaintiff's claims (Dkt. #1). Three other hourly employees of Repair My Credit Now-Adrian Brito, Johnny Hernandez, and Ruth E. Dickson- have consented to join Plaintiff's lawsuit and have submitted declarations supporting Plaintiff's claims (Dkt. #1, Exhibits 4-6). Plaintiff also has submitted a declaration in support of his claims (Dkt. #1, Exhibit 3). Plaintiff primarily complains Defendants required he (and other hourly employees) “to be on Defendants' jobsite or job facility prior to their scheduled start time in order to perform certain integral and indispensable tasks, such as booting up and logging on/into computers” such that “Plaintiff [began] his work 15 or 20 minutes, on average, early each day” without compensation for these “pre-shift” activities (Dkt. #1 at 4).

         Each of the declarations submitted in this case aver as follows regarding Defendants' alleged practice of requiring hourly employees to complete pre-shift work without compensation:

[I]t was expected and, practically, required, for us to arrive early to commence our work and perform pre-shift tasks necessary to be prepared to start work on time. Despite this expectation and requirement, we were not permitted to log the time we spent on these pre-shift tasks. . . .
Throughout this employment, I would regularly arrive at work, on average, at least 15 minutes early to perform pre-shift tasks out of necessity and to avoid being disciplined. Because I was regularly scheduled to work 40 hours per week, this additional pre-shift work was performed in excess of 40 hours and is owed to me at overtime rates. . . .
. . . The other hourly-paid employees that I worked with, performed similar pre-shift work prior to their scheduled shift start time and were subject to the same disciplinary practices and instructions. . . .

(Dkt. #18, Exhibit 3 at 2, Exhibit 4 at 2, Exhibit 5 at 2, Exhibit 6 at 2). Each declaration then provides the names of other hourly employees the respective declarant witnessed performing similar pre-shift work (Dkt. #18, Exhibit 3 at 2-3, Exhibit 4 at 2-3, Exhibit 5 at 2, Exhibit 6 at 2-3).

         Plaintiff filed the First Stage Motion for Notice to Potential Plaintiffs and Conditional Certification (Dkt. #18) on December 8, 2016, seeking (1) supervised notice and conditional certification for potential plaintiffs who worked for Repair My Credit Now within the past three years as hourly employees, (2) a forty-five day opt-in period measured from the date notice is mailed, (3) an order requiring Defendants to disclose the names, last known addresses, email addresses, and telephone numbers of the potential plaintiffs within seven days of the entry of the requested order, (4) permission to send the proposed notice and consent forms to potential plaintiffs by traditional and modern electronic means, and (5) permission to post the notice and consent forms at Defendants' offices in an area readily and routinely available for review by hourly employees (Dkt. #1). On January 5, 2017, Defendant filed its response in opposition (Dkt. #22). Additionally, Defendants filed their Objections to Declarations Submitted in Support of Plaintiff's Motion (Dkt. #24) on January 6, 2017, and Plaintiff filed his Response to Defendants' Objections to Declarations (Dkt. #28) on January 24, 2017. On January 25, 2017, Plaintiff filed a reply in support of its Motion (Dkt. #29). The Magistrate Judge entered the report and recommendation on April 3, 2017 (Dkt. #31), and Defendants timely filed their objections on April 17, 2017 (Dkt. #32). Plaintiff filed his response thereto (Dkt. #33) on May 1, 2017. The Court notes it has not yet received a draft of the proposed notice from the Parties as ordered by the Magistrate Judge (see Dkt. #31 at 10).

         DEFENDANTS' OBJECTION

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3); see also Lee v. Veolia ES Indus. Servs., Inc., No. 1:12-CV-136, 2013 WL 2298216 (E.D. Tex. May 23, 2013) (report and recommendation regarding first stage conditional certification reviewed under de novo standard). The Magistrate Judge's report specifically found Plaintiff demonstrates (1) “the Hourly Employees are similarly situated for the purposes of first stage certification, ” (2) “other Hourly Employees exist who are interested in opting in to this lawsuit, ” and (3) “a reasonable basis for crediting the Declarants' assertions exists” (Dkt. #31 at 7). The Magistrate Judge accordingly concluded “Plaintiff meets the low burden required for conditional certification at the first stage of this litigation” (Dkt. #31 at 9). Defendants object to the first finding and, as a result, to the Magistrate Judge's ultimate conclusion (Dkt. #32). Defendants contend Plaintiff has not met even the minimal burden of “presenting preliminary facts to show that there is a similarly situated group of potential plaintiffs” (Dkt. #32 at 1). Defendants argue Plaintiff presents only allegations, not evidence, to meet this burden (Dkt. #32 at 1-3). Defendants also claim Plaintiff has failed to meet the burden of presenting preliminary facts supporting his claim that the hourly employees are similarly situated because Plaintiff does not provide “a single factual allegation as to the nature of the alleged pre-shift activities” (Dkt. #32 at 3). Plaintiff argues in response that Defendants merely repeat the same arguments in their ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.