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Galvan v. DNV GL USA, Inc.

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

May 22, 2018

MICHAEL GALVAN, on behalf of himself all others similarly situated, Plaintiff
v.
DNV GL USA, INC., F/K/A DET NORSKE VERITAS USA, INC., Defendant

          MEMORANDUM AND ORDER ON CONDITIONAL CERTIFICATION

          Dena Hanovice Palermo, United States Magistrate Judge

         Order Currently pending before the Court is Plaintiff Michael Galvan's (“Plaintiff” or “Galvan”) motion for conditional certification. Pl.'s Mot. Condit. Cert., ECF No. 13 (“Motion”).[1] Defendant DNV GL USA, Inc. (“Defendant” or “DNV”) filed a motion for partial summary judgment, seeking dismissal of certain opt-ins as untimely or unauthorized. Def. Mot. Part. Summ. J., ECF No. 19 (“MSJ”).[2]Plaintiff also requested leave to file opt-in consent forms. Pl.'s Mot. For Leave, ECF No. 24. The Court held a status conference on May 21, 2018. After considering the briefing, arguments of counsel, evidence, and applicable law, the Court determines that the Plaintiff's Motion should be granted in part and denied in part, and Defendant's partial MSJ is moot, and Plaintiff's motion for leave is moot.[3]

         I. BACKGROUND

         On May 19, 2017, Plaintiff filed this action against DNV 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). Pl.'s Compl., ECF No. 1. Defendant DNV is a global quality assurance and risk management company, doing business in Europe and the United States. ECF No. 1 at 3; ECF No. 15 at 4. It is structured into five business areas: maritime, oil and gas, energy, business assurance, and digital solutions. ECF No. 15 at 5. DNV employs surveyors in its maritime business area, id., as well as other areas.

         Galvan worked as a surveyor from January 1, 2014 through January 2016. ECF No. 1 ¶ 15.[4] During his period of employment, Plaintiff alleges he verified and certified equipment for Defendant primarily at three National Oilwell Varco (“NOV”) worksites in the greater Houston area. Id. Since 2014, he was classified as an employee and received straight time pay when he worked more than 40 hours a week. Id. ¶ 16. In his motion, Plaintiff asserts that the primary job responsibilities as a surveyor for both Plaintiff and the class members were the same: “observing certain stages of product manufacturing and assembly as well as observing testing performed on various pieces of oil field and drilling equipment.” ECF No. 13 at 18. Likewise, he claims that other surveyors were paid straight time for overtime. Id. at 11-12. Plaintiff alleges that the Defendant had a policy and practice not to pay surveyors time and one-half for overtime. ECF No. 1 ¶ 24. He defines the class members as

all of Defendants' current and former surveyors (and any persons who performed substantially similar job duties under other titles) who worked more than forty (40) hours in a workweek but were paid at a straight-time rate for overtime hours worked at any time starting three years before the filing of this Complaint up to the present.

Id. ¶ 5.

         On March 14, 2018, Plaintiff filed his Motion, seeking conditional certification of this class. ECF No. 13. In response, Defendant asserts that the motion is untimely and should be denied, and further seeks summary judgment as to those plaintiffs who opted-in without an order granting certification. ECF No. 15 at 2-4; ECF No. 19 at 6-8. Plaintiff now seeks leave to allow the opt-ins, in the event the Court finds his Motion to certify is untimely. ECF No. 24.

         In September 2017, Judge Hoyt entered a scheduling order that set the end of the opt-in period for March 15, 2018. This case has been pending for a year. The Plaintiff waited until the day before the opt-in deadline to file his motion for conditional certification. The parties have exchanged some written discovery and taken the Plaintiff's deposition, but have not completed discovery. Although Plaintiff's Motion is untimely, the Court will consider it because the parties have not completed discovery, judicial economy weighs in favor of the collective action instead of having potential opt-ins filing their own actions, and the Defendant will not suffer any real prejudice from a short continuance of the current deadlines in the scheduling order.

         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 ...


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