United States District Court, N.D. Texas, Dallas Division
MATTHEW CERVANTEZ, individually and on behalf others similarly situated under 29 U.S.C. § 216b, Plaintiff,
TDT CONSULTING, LLC, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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].
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
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.
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.
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.
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.
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.
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.
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)).
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
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.
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. §
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.”).
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).
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.
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.
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.
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
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 ...