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Moreno v. National Oilwell Varco, L.P.

United States District Court, S.D. Texas, Houston Division

April 23, 2018

HECTOR MORENO, individually and on behalf of all others similarly situated, Plaintiff
v.
NATIONAL OILWELL VARCO, L.P. and NOV GP HOLDING, L.P., Defendants JOSE CALDERON, individually and on behalf of all others similarly situated, Plaintiff
v.
NATIONAL OILWELL VARCO, L.P., Defendant

          MEMORANDUM AND ORDER ON CONDITIONAL CERTIFICATION

          DENA HANOVICE PALERMO, UNITED STATES MAGISTRATE JUDGE.

         Currently pending before the Court is Plaintiff Jose Calderon's motion for conditional certification in the consolidated action. Pl.'s Am. Cert. Mot., ECF No. 72 (“Motion”).[1] Plaintiff also recently requested an oral hearing. Pl.'s Mot. For Hrg., ECF No. 112. Defendant opposes both motions. Def.'s Resp. to Condit. Cert. Mot., ECF No. 105, Def.'s Resp. to Mot. for Hrg., ECF No. 113. After considering the briefing, evidence, and applicable law, the Court determines that the Motion should be granted in part and denied in part, and Plaintiff's motion for hearing is moot.[2]

         I. BACKGROUND

         On March 13, 2017, Plaintiff Hector Moreno (“Moreno”) filed this action, Moreno v. NOV, 4:17-CV-782, against National Oilwell Varco, L.P. (“NOV”) on behalf of himself and others similarly situated to recover unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207(a), 216(b). First Am. Compl., ECF No. 16.[3] Defendant NOV is an international onshore and offshore drilling, well-servicing, and workover contracting company, operating throughout every region of the world. Id. ¶ 12; ECF No. 105 at 6. Moreno worked as a rig welder at NOV's Galena Park location from August 2006 to January 2016. ECF No. 16 13. He allegedly was classified as an independent contractor and received no additional compensation when he worked more than 40 hours a week. Id. On September 19, 2017, Judge Atlas consolidated the Moreno case with another collective action Jorge Villanueva (“Villanueva”) filed against NOV, Villanueva v. NOV, 4:17-CV-2325. Order, ECF No. 34.

         On August 8, 2017, prior to consolidation of the Moreno and Villanueva cases, Moreno filed a motion for conditional certification. Pl.'s Cert. Mot., ECF No. 24. Plaintiff sought to certify a class of current and former NOV welders, rig welders, and mechanics at all NOV locations who were classified as independent contractors during the last three years. Id. at 2. On November 29, 2017, this Court granted in part and denied in part Plaintiff's motion. Order, ECF No. 60. Finding that Moreno was similarly situated to other rig welders at NOV's Galena Park location, the Court certified a class consisting of all current and former NOV rig welders at NOV's Galena Park who were classified as independent contractors during the last three years. Id. at 22. This Court denied Plaintiff's motion without prejudice as to NOV welders and mechanics and as to rig welders who worked at NOV facilities other than Galena Park. Id.

         Three months after the cases were consolidated, Plaintiff Villanueva filed the pending Motion, seeking conditional certification of a broader class than the Court previously certified. ECF No. 72.[4] Plaintiff now seeks conditional certification of a class consisting of current and former NOV welders and rig welders who were classified as independent contractors, were paid straight time for overtime, and worked at any NOV location during the last three years. ECF No. 72 at 15.[5]

         II. LEGAL STANDARD

         The FLSA provides that

no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). The FLSA creates a cause of action for an employee to sue his employer for violating the overtime compensation requirements. It also permits a court to order a case to proceed as a collective action on behalf of “other employees similarly situated.” Id. § 216(b). Section 216(b) provides for an opt-in procedure for other similarly situated employees to join the action. Vaughn v. Document Grp. Inc., 250 F.Supp.3d 236, 239 (S.D. Tex. 2017); Austin v. Onward, LLC, 161 F.Supp.3d 457, 461 (S.D. Tex. 2015). Courts favor FLSA collective actions because they reduce costs for the individual plaintiffs and create judicial efficiency. Austin, 161 F.Supp.3d at 461.

         In deciding whether to certify an FLSA lawsuit, the Fifth Circuit has affirmed use of the lenient two-stage approach. Kibodeaux v. Wood Grp. Prod., No. 4:16-CV-3277, 2017 WL 1956738, at *1 (S.D. Tex. May 11, 2017) (citations omitted); accord Vaughn, 250 F.Supp.3d at 239. Both stages occur before the court assesses the merits of the case. Vaughn, 250 F.Supp.3d at 239. At neither stage does the court decide factual disputes or make credibility determinations. Id.

         At the first stage, the court decides whether to conditionally certify a class for individuals to opt-in and be bound by the outcome of the case. Id. If the court decides to conditionally certify a class, the court issues notice to potential class members. Kibodeaux, 2017 WL 1956738, at *1. The court makes this decision based on the pleadings and any submitted affidavits. Id.; Austin, 161 F.Supp.3d at 463. Because the court has minimal evidence at the notice stage, the court uses a “fairly lenient standard, [which] typically results in ‘conditional certification' of a representative class.” Kibodeaux, 2017 WL 1956738, at *1 (citations omitted).

         At the second stage, after some or all discovery has been completed, a defendant may choose to file a motion for decertification. Id. at *2; Vaughn, 250 F.Supp.3d at 239. At that time, the court considers any additional evidence the parties submitted to determine whether to decertify the class because its' members are not similarly situated. Kibodeaux, 2017 WL 1956738, at *2; Vaughn, 250 F.Supp.3d at 239.

         III. ANALYSIS

         A. Plaintiff's Motion Meets the First Stage's Lenient Showing

         To prevail at this stage, a plaintiff must make a minimal showing of three elements:

(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.

Kibodeaux, 2017 WL 1956738, at *2; Vaughn, 250 F.Supp.3d at 240; Austin, 161 F.Supp.3d at 462. A factual basis for the allegations is needed to satisfy the first step. McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 801 (S.D.Tex.2010). Specifically, the plaintiff must demonstrate “some identifiable facts or legal nexus [that] bind the claims so that hearing the cases together promotes judicial efficiency.” Flowers v. MGTI, LLC, No. 4:11-cv-1235, 2012 WL 1941755, at *3 (S.D. Tex. May 29, 2012) (citations omitted). The court should deny the motion for conditional certification “if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.” Walker v. Honghua Am., LLC, 870 F.Supp.2d 462, 465 (S.D. Tex. 2012).

         1. Plaintiff sufficiently established that other aggrieved individuals exist who were subject ...


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