United States District Court, W.D. Texas, Waco Division
CHRISTOPHER FERGUSON, individually and on behalf of all others similarly situated, Plaintiff,
TEXAS FARM BUREAU BUSINESS CORP., et al., Defendants.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Reconsider
Plaintiffs' Objection and Motion to Strike
Defendants' Improper Agency Manager Affidavits
(“Motion to Reconsider”), (Dkt. 129), and the
responses thereto, (Dkts. 134, 135). Plaintiffs urge the
Court to reconsider its text order of March 21, 2018, in
which the Court declared Plaintiffs' Objection and Motion
to Strike Defendants' Improper Agency Manager Affidavits,
(Dkt. 79), to be moot. For the reasons stated below,
Plaintiffs' Motion to Reconsider is GRANTED IN
Christopher Ferguson filed this action on April 20, 2017, for
alleged violations by his former employer of the Fair Labor
Standards Act (“the FLSA”). (Compl., Dkt. 1,
¶ 1). He alleged that Defendants violated the FLSA by
misclassifying Agency Mangers-individuals who helped
Defendants sell insurance policies by recruiting and
supervising individual insurance agents- as independent
contractors and failing to pay them overtime. (Id.
¶¶ 2, 54-55). Plaintiff seeks to represent
similarly situated Agency Managers and filed an FLSA class
certification motion on May 8, 2017. (Mot. Cert. Class, Dkt.
13, at 1).
21, 2017, the Texas Farm Bureau Defendants filed a response
in opposition to Plaintiffs' motion for certification.
(TFB Defs.' Resp., Dkt. 65). Attached to this response
were approximately eighty fill-in-the-blank affidavits from
Agency Managers that the Texas Farm Bureau Defendants
included “in support of individualized analysis and
independent contractor status.” (TFB Defs.' Resp.,
Dkt. 65, at 1 n.1). Five days later, Defendants filed a
motion for leave to file twenty additional affidavits. (TFB
Defs.' Mot. Leave, Dkt. 75). On June 28, 2017, Plaintiff
filed a motion to strike these affidavits and for a
protective order. (Mot. Strike, Dkt. 79).
motion, Plaintiff argued that the affidavits attached to the
Texas Farm Bureau Defendants' response were obtained by
misleading the affiants regarding their rights-in particular,
by telling affiants that signing an affidavit might
effectively waive their right to later become a class member.
(Id. at 5). Plaintiff also argued that the nature of
the relationship between the affiants and Defendants creates
a situation rife for coercion and inappropriate influence.
(Id. at 6-7). Plaintiff asked the Court to strike
the affidavits, require Defendants to seek prior Court
approval for communications with Agency Managers regarding
the lawsuit, and send a corrective notice regarding the
affidavits to Defendants. (Id. at 7). Defendants
responded that Plaintiff has failed to provide evidence that
their contact was inappropriate or coercive. (TFB Resp. Mot.
Strike, Dkt. 82, at 2).
March 20, 2018, the Court entered an order adopting the
report and recommendation of a magistrate judge and
conditionally certifying Plaintiffs' proposed class.
(Order, Dkt. 128). The next day, the Court entered a text
order declaring Plaintiffs' Motion to Strike moot in
light of the disposition of Plaintiffs' class
certification motion. Plaintiffs subsequently filed the
instant Motion for Reconsideration, which argues that the
Motion to Strike was not rendered moot by the conditional
certification of the proposed class and that evidence
supports granting Plaintiffs the relief they sought in that
motion. (Mot. Reconsider, Dkt. 129).
STANDARD OF REVIEW
April 14, 2017, the Fifth Circuit clarified when courts
considering motions for reconsideration should apply Federal
Rule of Civil Procedure 54(b) and when they should apply Rule
59(e). Austin v. Kroger Texas, L.P., 864 F.3d 326,
336 (5th Cir. 2017). “Rule 59(e) governs motions to
alter or amend a final judgment, ” while “Rule
54(b) allows parties to seek reconsideration of interlocutory
orders and authorizes the district court to revise at any
time any order or other decision that does not end the
action.” Id. (internal quotation marks and
citations omitted). This Court will therefore consider
Plaintiffs' motion under Rule 54(b). “Under Rule
54(b), ‘the trial court is free to reconsider and
reverse its decision for any reason it deems sufficient, even
in the absence of new evidence or an intervening change in or
clarification of the substantive law.'”
Id. (quoting Lavespere v. Niagara Mach. &
Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
court may not limit communications ‘without a specific
record showing by the moving party of the particular abuses
by which it is threatened.'” Vogt v. Tex.
Instruments Inc., No. 3:05-CV-2244-L, 2006 WL 4660133,
at *3 (N.D. Tex. 2006) (quoting Gulf Oil Co. v.
Bernard, 452 U.S. 89, 102 (1981)). “The
‘mere possibility of abuses' does not justify
routine adoption of a communications ban.” Id.
(quoting Gulf Oil, 452 U.S. at 104)). “While
actual harm need not be proved to justify an order limiting
class contacts, the movant must at least present evidence
that a potential likelihood for serious abuse exists.”
Id. (internal citation omitted).
courts have addressed how communications initiated by
plaintiffs or their counsel to potential class members should
be regulated during the interim period after suit has been
filed, but before the court conditionally certifies a
collective action or authorizes a notification pursuant to
[29 U.S.C. § 216(b)]. Id. Generally speaking,
“district courts enjoy wide latitude in managing
complex litigation in general and class actions in
particular.” Gates v. Cook, 234 F.3d 221, 227
(5th Cir. 2000). However, “courts should not per
se prohibit precertification communications.”
Vogt, 2006 WL 4660133, at *4.
support of their Motion to Strike, Plaintiffs first directed
the Court to the approximately 100 fill-in-the-blank
affidavits attached to the Texas Farm Bureau Defendants'
response to the certification motion. (See Affs.,
Dkt. 65-3). The typed content of each of these affidavits
appears to be identical. The beginning of the affidavit
provides a space for the affiant to put their name and list
the county in which they live. The first paragraph provides
that “I have personal knowledge of the matters set
forth in the Affidavit, unless otherwise stated, ” and
that “[i]f called as a witness, I would be competent to
testify to the matters in this Affidavit.” (Davidson
Aff., Dkt. 65-3, ¶ 1). The next paragraph provides:
I have been advised that a lawsuit has been filed seeking to
conditionally certify a class of Agency Managers like myself,
claiming that Agency Managers have been improperly classified
as independent contractors and not employees. I also
understand that the lawsuit alleges that such Agency Managers
who were allegedly improperly classified as independent
contractors are entitled to overtime compensation for all
hours worked over 40 per week going back a number of years. I
was informed of my right to speak with an attorney and my
right to decline to be interviewed by counsel for the
Defendants. I have further been advised that as an Agency