United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
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
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).
the declarations submitted in this case aver as follows
regarding Defendants' alleged practice of requiring
hourly employees to complete pre-shift work without
[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).
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).
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