United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING CONDITIONAL CERTIFICATION OF COLLECTIVE
B. Libby United States Magistrate Judge
Sophy Treadway brings this action pursuant to the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201, et seq.
Plaintiff alleges Defendant violated the FLSA by failing to
pay her the federally mandated minimum wage and also by
failing to pay her time and a half overtime for hours worked
in excess of 40 in a single work week.
is Plaintiff's Opposed Motion For Conditional
Certification. (D.E. 26). In connection with this motion the
parties have filed considerable briefing, including:
1. Defendant's response and objections (D.E. 35);
2. Plaintiff's opposed motion to strike and reply to
Defendant's response (D.E. 40);
3. Defendant's response to Plaintiff's motion to
strike and Defendant's reply (D.E. 46);
4. Defendant's objections to Plaintiff's evidence
submitted in Plaintiff's reply and Defendant's motion
to strike (D.E. 49); and
5. Plaintiff's response to Defendant's motion to
strike (D.E. 50);
hearing on Plaintiff's motion for conditional
certification was held on April 2, 2019, before the
undersigned at which counsel appeared in person. Having
considered the parties' briefing, arguments, the
applicable legal authorities, and all matters of record,
Plaintiff's motion is DENIED as set
Court has federal question jurisdiction over this FLSA action
pursuant to 28 U.S.C. § 1331. This case has been
referred to the undersigned United States Magistrate Judge
for case management pursuant to 28 U.S.C. § 636. (D.E.
32). The undersigned has authority to rule on this matter as
it is non-dispositive. See Patton v. Thompson Corp.,
364 F.Supp.2d 263, 265-66 (E.D.N.Y. 2005); Ruggles v.
WellPoint, Inc., 591 F.Supp.2d 150, 156 (N.D.N.Y. 2008);
Headrick v. Tucker Energy Serv., Inc., No.
SA-16-CA-749-OLG, 2017 WL 2999976, at *1-4 (W.D. Tex. Mar.
FACTUAL AND PROCEDURAL BACKGROUND
Sophy Treadway is a former employee of Exxizz Foods, Inc.
d/b/a Rockport Donuts. Ms. Treadway filed this action on
August 30, 2018, alleging Defendants Exxizz Foods and Sopheak
Otero violated the FLSA by paying her a flat rate twice a
month regardless of the number of hours she worked. (D.E. 1).
Plaintiff alleges she was paid less than the federally
mandated minimum wage and was not properly compensated for
overtime hours. On October 17, 2018, Plaintiff filed an
amended complaint adding William Morgan Richardson as a
Plaintiff and Matthew Otero as a Defendant. (D.E. 9).
Defendants filed an Answer on November 14, 2018. (D.E. 16).
Sopheak Otero and Matthew Otero filed a motion to dismiss on
November 14, 2018. (D.E. 17). United States District Judge
Nelva Gonzales Ramos granted the Otero's motion to
dismiss on December 27, 2018, noting Plaintiff's counsel
did not file a response. (D.E. 21). On January 31, 2019,
Plaintiff filed a motion for conditional certification,
approximately a month and a half past the deadline. (D.E.
26). On February 21, 2019, Judge Ramos cautioned
Plaintiff's counsel for “a pattern of failing to
prosecute this case in a timely manner.” (D.E. 31).
March 28, 2019, a hearing was scheduled on Plaintiff's
motion for conditional certification. Neither of
Plaintiff's named counsel appeared. Mr. Gordon Wittick,
who is an associate of the same law firm, appeared on behalf
of Plaintiff. However, Mr. Wittick is not admitted to
practice before the Southern District of Texas and, at the
time of the hearing, had not filed a notice of appearance or
a motion to appear pro hac vice in this case. Based
on a pattern of neglect exhibited by Plaintiff's counsel,
the undersigned ordered Plaintiff's counsel to show cause
why they should not be sanctioned. (D.E. 51). The parties
filed responses, a reply and briefs. (D.E. 56, 57, 58, 59.
William Morgan Richardson mailed a letter dated November 16,
2018, to Plaintiff's counsel requesting to be dismissed
from this action and terminating his employment of
Plaintiff's counsel. (D.E. 35-2). Plaintiff's counsel
acknowledged receipt of the letter but maintain they did not
become aware of the letter until recently due to the letter
being misfiled by their staff when it was received. (D.E. 59,
p. 3). The undersigned became aware of the letter through the
parties' briefing and ordered Plaintiff's counsel to
file an affidavit with the Court, signed by William Morgan
Richardson, regarding whether he is represented by Siegel
Yuen Honore PLLC and whether wants to be a Plaintiff in this
case. (D.E. 51, p. 3). Plaintiff's counsel filed a motion
to stay the order because they were unable to reach Mr.
Richardson for a number of months. (D.E. 53). The ...