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Cervantez v. TDT Consulting LLC

United States District Court, N.D. Texas, Dallas Division

July 22, 2019

MATTHEW CERVANTEZ, individually and on behalf others similarly situated under 29 U.S.C. § 216b, Plaintiff,



         This case has been referred to the United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Karen Gren Scholer. See Dkt. No. 20.

         Plaintiff Mathew Cervantez (represented as Matthew Cervantez in the Complaint), individually and on behalf of those similarly situated, brought this putative collection action under 29 U.S.C. § 216(b), a provision of the Fair Labor Standards Act, 28 U.S.C. § 206, et seq. (the “FLSA”), to recover minimum wages, overtime pay, liquidated damages, attorneys' fees, and costs. See Dkt. No. 1 at 1.

         Cervantez now moves for conditional certification, see Dkt. No. 10, to which Defendant responded to and filed an Objection, see Dkt. No. 12, and in support of which Cervantez filed a reply, see Dkt. No. 15.

         For the reasons below, the Court should overrule Defendant's Objection [Dkt. No. 12] and grant in part and deny in part Plaintiff's Motion for Expedited Conditional Certification of Collective Action and Judicially-Supervised Notice Under Section 216(b) [Dkt. No. 10].


         Plaintiff Mathew Cervantez alleges that, from May 2018 to August 2018, Defendant TDT Consulting, LLC employed Cervantez as a solids control technician. See Dkt. No. 10 at 4. TDT Consulting “employs approximately 20-25 other solids control technicians” and staffs these workers as consultants with other businesses “for drilling fluids, waste management, solids control, under balance drilling[, ] and managed pressure drilling in the oil and gas industry.” Id.

         Cervantez worked as a solids control technician, which involved “process[ing] the cutting[s] that come[] out of the ground during the drilling process at oil rigs.” Id. Cervantez contends that he and other solids control technicians were required, “at the direction and instruction of TDT Consulting, LLC, ” to use TDT Consulting's tools and equipment to “remove, clean, measure, load, and transport cuttings, as well as maintain and clean the equipment used to remove the cuttings during the drilling process.” Dkt. No. 10 at 4; Dkt. No. 1 at 5. Additional responsibilities that the technicians were assigned, Cervantez contends, included “being responsible for maintaining [TDT Consulting's] solid control equipment, the rigging up and out of company equipment at the client's well-site/jobsite, dewatering, and centrifuge support, ” as well as the task of “complet[ing] and submit[ing] ... daily field reports with information, such as the work performed, personnel information, and [the] cost of the job performed at the client's well-site/jobsite.” Id.

         According to Cervantez, the day-to-day activities were “labor intensive” and involved “their hands, physical skills, and energy, to perform the task[s]”; did not “include managerial responsibilities or the exercise of independent discretion” or the ability to “hire or fire”; and were “designed within parameters and in accordance with [TDT Consulting's] operational plans....” Dkt. No. 1 at 5-6.

         Cervantez asserts that he “and the other solids control technicians were paid” a “daily rate of $350, regardless of the hours worked and the time spent driving to and from jobsite.” Dkt. No. 10 at 4. He contends that he “and other solids control technicians worked twelve (12) or more hours in a single day for a period of up to fourteen (14) consecutive days in a row.” Id. Cervantez reports that there were frequent trips of “150 miles to and 150 from client's jobsites” for which technicians were only given a milage reimbursement. Id.

         Cervantez asserts that TDT Consulting misclassified the solids control technicians as independent contractors instead of employees, and did not compensate him and the other solids control technicians “for any hours worked in excess of forty (40) per week - including time spent driving” despite regularly working more than forty hours in single workweek. Dkt. No. 10 at 4; Dkt. No. 1 at 7. He argues that they were not paid for these hours work and were not paid at the correct rate of “one-and-one-half times their regular rate” under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (“FLSA”), for the hours worked in excess of 40 per week. See Dkt. No. 1 at 1-2.

         Cervantez brings this lawsuit as a putative collective action under 29 U.S.C. § 216(b). See id. He seeks conditional certification, permission to provide potential class members with notice, and a Court decision tolling the statute of limitations for additional plaintiffs to opt in from the date that the motion for conditional certification was filed. See Dkt. 10 at 1-17.

         Legal Standards

         In evaluating a conditional certification, the FLSA provides:

An action ... may be maintained ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Unlike class actions brought under Federal Rule of Civil Procedure 23, classes under Section 216(b) are opt-in classes, requiring any employee wishing to become a party to the action to “opt in” (rather than “opt out”) by filing his consent with the court in which the action is brought. See id.

         Although the United States Court of Appeals for the Fifth Circuit has not adopted a specific standard to be used in determining the propriety of class certification under the FLSA, it has affirmed at least two approaches. See Portillo v. Permanent Workers, L.L.C., 662 Fed.Appx. 277, 279 & n.10 (5th Cir. 2016). The first approach, which tracks Rule 23, entails district courts' evaluating FLSA collective actions against the well-established requirements of numerosity, commonality, typicality, and adequacy. See Id. The second is the “Lusardi approach, ” named for an opinion describing a two-stage certification process consisting of a notice stage and a certification stage. See Id. (citing Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)).

         The undersigned follows the Lusardi approach as the legal standard for collective action certification. See Dkt. No. 23 at 3; Portillo, 662 Fed.Appx. at 280 & n.14; Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-16 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2013)); see also Lee v. Metrocare Servs., 980 F.Supp.2d 754, 758 (N.D. Tex. 2013) (recognizing and applying two-stage test as prevailing test among federal courts); Valcho v. Dallas Cnty. Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D. Tex. 2008) (noting that the Northern District of Texas federal courts apply the two-stage test “that prevails among federal courts”).

         During the notification stage,

the plaintiff moves for conditional certification of his or her collective action. The district court then decides, usually based on the pleadings and affidavits of the parties, whether to provide notice to fellow employees who may be similarly situated to the named plaintiff, thereby conditionally certifying a collective action.

Portillo, 662 Fed.Appx. at 280 (quoting Sandoz, 553 F.3d at 921 n.2). The plaintiff must establish that there are other potential class members who are “similarly situated in their job requirements and pay provisions.” Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. 447, 449 (N.D. Tex. 2011) (internal quotations omitted). If a court is satisfied that a plaintiff has satisfied this test, the Court may, in its discretion, decide to conditionally certify the class and facilitate notice of the lawsuit to potential class members. See Valcho, 574 F.Supp.2d at 621-22.

         Because plaintiffs seeking conditional certification need not identify other hypothetical collective action members, the stage one standard is considered to be “fairly lenient. ”Portillo, 662 Fed.Appx. at 282. The decision whether to conditionally certify “‘lends itself to ad hoc analysis on a case-by-case basis, '” but the Court typically grants certification. Id. (quoting Mooney, 54 F.3d at 1214). Once conditional certification is granted, “‘notice of the action should be given to potential class members, '” allowing them the opportunity to “opt-in” to the collective action. Id. (quoting Mooney, 54 F.3d at 1214); 29 U.S.C. § 216(b).

         At the certification stage, the Court determines whether the class should be maintained through trial. See Mooney, 54 F.3d at 1214. This stage typically begins when the defendant moves to decertify the class after discovery is largely complete. See Id. The collective action will proceed if the court finds the potential class members similarly situated, but the class will be decertified if discovery fails to adequately identify a pool of claimants that is similarly situated. See id.; see also Proctor v. Allsups Convenience Stores, Inc., 250 F.R.D. 278, 280 (N.D. Tex. 2008) (“At this second stage, the burden is on the Plaintiff to prove that the individual class members are similarly situated.”).

         At this stage, courts are much less likely to allow the collective action to continue to trial. See Portillo, 662 Fed.Appx. at 281. The court may consider: “(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [defendant] which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Id. (internal quotation marks omitted).


         The Court should overrule Defendant's Objection [Dkt. No. 12] and grant in part and deny in part Plaintiff's Motion for Expedited Conditional Certification of Collective Action and Judicially-Supervised Notice Under Section 216(b) [Dkt. No. 10].

         I. Defendant's Objection

         Turning first to TDT Consulting's Objection filed in response to Cervantez's motion for conditional certification, see Dkt. No. 12-1 at 1-10, TDT Consulting objects to a number of statements in the Cervantez's declaration based on hearsay, conclusory statements, and a lack of personal knowledge under Federal Rules of Evidence 601, 602, and 801. See Dkt. No. 12 at 1-9.

         Cervantez counters that, while evidence must be based on personal knowledge at the notice stage of certification, he is not required to present evidence in a form that would be admissible at trial. See Dkt. No. 15 at 1-13.

         Courts in this district and beyond have held that “[p]laintiffs need not present evidence in a form admissible at trial at the notice stage.” Lee, 980 F.Supp.2d at 761; Nguyen v. Versacom, LLC, No. 3:13-CV-4689-D, 2015 WL 1400564, at *3 (N.D. Tex. Mar. 27, 2015) (“Because motions for conditional certification are typically made when discovery is in its early stages, and are not dispositive motions, many courts - including this one - have held that affidavits or declarations offered in support of motions for conditional certification need not be based on evidence that would be admissible at trial.”). “To require more at this stage of litigation would defeat the purpose of the two-stage analysis.” White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 368 (E.D. Tenn. Mar. 21, 2006). Accordingly, the undersigned recommends that the court overrule TDT Consulting's hearsay objections.

         But, although “affidavits in support of motions for conditional certification need not meet all evidentiary standards for admissibility at trial, ” that “does not mean that such affidavits need not meet any standards. On the contrary, affidavits submitted at the notice stage must be based on the personal knowledge of the affiant.” White, 236 F.R.D. at 369; see Dooling v. Bank of the W., No. 4:11-cv-576, 2012 WL 2417591, at *4 (E.D. Tex. June 26, 2012), rep. & rec. adopted, 2012 WL 2921370 (E.D. Tex. July 17, 2012) (noting the need for a declaration to be based on personal knowledge, even in the conditional certification stage); Owen v. Golf & Tennis Pro Shop, Inc., No. 4:09-cv-571, 2010 WL 3859640, at *4 (E.D. Tex. Sept. 30, 2010), motion for ...

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