United States District Court, S.D. Texas, Houston Division
HECTOR MORENO, individually and on behalf of all others similarly situated, Plaintiff
NATIONAL OILWELL VARCO, L.P. and NOV GP HOLDING, L.P., Defendants JOSE CALDERON, individually and on behalf of all others similarly situated, Plaintiff
NATIONAL OILWELL VARCO, L.P., Defendant
MEMORANDUM AND ORDER ON CONDITIONAL
HANOVICE PALERMO, UNITED STATES MAGISTRATE JUDGE.
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”). 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.
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.
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.
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.
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. 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
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.
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
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
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.
Plaintiff's Motion Meets the First Stage's Lenient
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.
Plaintiff sufficiently established that other aggrieved
individuals exist who were subject ...