United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON, UNITED STATES DISTRICT JUDGE
the Court in the above referenced, putative collective
action, grounded in the Fair Labor Standards Act, are
Plaintiff's Motion for Conditional Certification, Doc.
23, and Plaintiff's Motion for Approval and Distribution
of Notice and for Disclosure of Contact Information, Doc. 24.
Having considered these Motions, Defendant's Response,
Doc. 26, and Plaintiff's Reply, Doc. 27, the Court hereby
DENIES Plaintiff's Motions for Conditional Certification
Jared Harlow filed this suit against Defendants Legend Energy
Services, LLC (“Legend”), and Trey Ingram,
Matthew Goodson, and Josh Pruett, each individually and as
officers of Legend, on behalf of himself and others similarly
situated to recover overtime pay and other damages pursuant
to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). Mr. Harlow asserts that he and others
at Legend were misclassified as “exempt”
employees under the FLSA. Therefore, Mr. Harlow contends, he
and others received no overtime compensation despite being
required to work over forty hours per week. Pursuant to 29
U.S.C. § 216(b), Mr. Harlow seeks to conditionally
certify the following class:
Each individual employed as a salaried Oilfield Worker for
Defendant at any time within the three years preceding the
filing of Plaintiff's Original Complaint, excluding any
such person who has already participated in a claim against
Defendant as an opt-in or named party in a wage lawsuit.
216(b) of the FLSA permits an employee to bring an action
“for and [on] behalf of himself . . . and other
employees similarly situated.” 29 U.S.C. 216(b). To
certify a collective action under the FLSA, two requirements
must be satisfied. “First, the named representative and
the putative members of the prospective FLSA class must be
similarly situated. Second, the pending action must have a
general effect.” England v. New Century Fin.
Corp., 370 F.Supp.2d 504, 507 (M.D. La. 2005). Class
treatment is not appropriate where the action arises from
circumstances that are “purely personal to the
plaintiff, and not from any generally applicable rule or
Fifth Circuit has noted the two different tests that courts
apply to determine if the putative class members are
“similarly situated.” Mooney v. Armaco Srvcs.
Co., 54 F.3d at 1213- 14 (5th Cir. 1995). Like most
district courts, this Court has generally adopted the
two-stage approach articulated in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J.1987), consisting of (i) a
notice stage, followed by (ii) a decertification stage.
See Sandoz v. Cingular Wireless LLC, 553 F.3d 913,
916 n.2 (5th Cir. 2008) (finding that “collective
actions typically proceed in two stages”). Under the
Lusardi approach, in the notice stage, the district
court first makes a preliminary determination of whether
potential plaintiffs are similarly situated to the named
plaintiff. Mooney, 54 F.3d at 1213-14. If they are,
then the court conditionally certifies the action and
authorizes notice to potential plaintiffs to opt in, and the
suit “proceeds as a representative action throughout
discovery.” Id. at 1214. Generally, after the
close of discovery, the defendant initiates the second stage
by filing a motion for “decertification.”
Id. At this stage, the Court makes a factual
determination from discovery evidence of whether the
plaintiffs are “similarly situated.” Id.
If the court determines from discovery evidence that the
plaintiffs are in fact similarly situated, then the case
proceeds as a representative action. Id. If the
court finds that the plaintiffs are not similarly situated,
then the class is decertified, the “opt-in”
plaintiffs are dismissed without prejudice, and the original
plaintiffs proceed to trial on their individual claims.
Id. at 1213-14.
notice stage of the Lusardi analysis, plaintiffs
bear the burden to establish that they are similarly situated
to other employees in the proposed class. England,
370 F.Supp.2d at 507. Courts determine whether the burden has
been met using a “fairly lenient standard, ”
requiring only “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 (citing Sperling v.
Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.
1988). At this stage, however, a plaintiff must make at least
a minimal showing that: “(1) there is a reasonable
basis for crediting the assertion that aggrieved individuals
exist; (2) those aggrieved individuals are similarly situated
to the plaintiff in relevant respects given the claims and
defenses asserted; and (3) those individuals want to opt in
to the lawsuit.” McKnight v. D. Houston, Inc.,
756 F.Supp.2d 794, 801 (S.D. Tex. 2010) (citations omitted).
A court will customarily make a decision “based only on
the pleadings and any affidavits which have been
submitted.” Mooney, 54 F.3d at 1213-14.
notice stage, the plaintiff bears the burden of making a
minimal showing that other aggrieved individuals wish to opt
in to the lawsuit. McKnight v. D. Houston, Inc., 756
F.Supp.2d at 801. While the burden is low at this stage, here
it has not been met by Plaintiff. “A plaintiff must do
more than show the mere existence of other similarly situated
persons, because there is no guarantee that those persons
will actually seek to join the lawsuit. Affidavits from
potential class members affirming their intention to join the
suit are ideal for an analysis of whether the putative class
members were together the victims of a single decision,
policy, or plan.” Id. at 805 (internal
quotations and citations omitted). This requirement exists
because “[o]thers' interest in joining the
litigation is relevant to deciding whether or not to put a
defendant employer to the expense and effort of notice to a
conditionally certified class of claimants in a collective
action.” Simmons v. T-Mobile USA, Inc., No.
CIV A H-06-1820, 2007 WL 210008, at *9 (S.D. Tex. Jan. 24,
2007). Furthermore, “courts ... have a responsibility
to avoid the 'stirring up' of litigation through
unwarranted solicitation.” Valcho v. Dallas Cty.
Hosp. Dist., 574 F.Supp.2d 618, 622 (N.D. Tex. 2008)
(quoting D'Anna v. M/A-Com, Inc., 903 F.Supp.
889, 894 (D. Md. 1995)).
Harlow has not included any affidavits from other potential
class members, nor does he allege that he is aware of any
specific individuals who are interested in joining the
lawsuit. Mr. Harlow only makes a bare statement that he
“believe[s] that there would be others that would want
to join this lawsuit if notice were issued to them and they
were made aware of the suit.” Doc. 23-1 at 4. This is
not sufficient to meet this prong of the test and thus
conditional class certification is not appropriate.
Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL
1509570, at *8 (W.D. Tex. Mar. 31, 2015) (“In addition
to requiring the existence of similarly situated individuals,
most courts require that a plaintiff present some evidence
that those individuals are likely to opt-in to the
lawsuit.”); Behnken v. Luminant Min. Co., LLC,
997 F.Supp.2d 511, 522 (N.D. Tex. 2014) (“[B]efore
granting court-facilitated notice, the court should satisfy
itself that there are other similarly-situated employees. . .
who would desire to opt-in to the lawsuit.”) (quoting
Valcho, 574 F.Supp.2d at 622); Simmons,
2007 WL 210008, at *9 (denying certification where plaintiff
did not present any admissible evidence that other aggrieved
employees were interested in participating in plaintiff's
suit); see also Parker v. Rowland Express, Inc., 492
F.Supp.2d 1159, 1165 (D. Minn. 2007) (“Simply put, a
plaintiff must do more than show the mere existence of other
similarly situated persons, because there is no guarantee
that those persons will actually seek to join the
lawsuit.”); Dybach v. State of Fla. Dep't of
Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)
(“[T]he district court should satisfy itself that there
are other employees of the department-employer who desire to
'opt-in.'”). Since Plaintiff has not made a
minimal showing that other aggrieved individuals wish to opt
in to the lawsuit, his Motion for Conditional Certification
Plaintiff's Motion for Conditional Certification is
denied, Plaintiff's related Motion for Approval and
Distribution of Notice and For Disclosure of Contact
Information, Doc. 24, is also denied.