United States District Court, S.D. Texas, Houston Division
MICHAEL GALVAN, on behalf of himself all others similarly situated, Plaintiff
DNV GL USA, INC., F/K/A DET NORSKE VERITAS USA, INC., Defendant
MEMORANDUM AND ORDER ON CONDITIONAL
Hanovice Palermo, United States Magistrate Judge
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”). 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”).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.
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.
worked as a surveyor from January 1, 2014 through January
2016. ECF No. 1 ¶ 15. 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.
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.
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.
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 ...