United States District Court, S.D. Texas, Houston Division
Dman Thomas, Individually and on Behalf of Similarly Situated Individuals, Plaintiffs,
Argos USA, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
H. Miller, Judge
before the court are (1) a motion for conditional
certification filed by plaintiff Dman Thomas (Dkt. 5); and
(2) a motion to dismiss Thomas's collective action claims
filed by defendant Argos USA, LLC (“Argos”) (Dkt.
12). After considering the motions, the response to the
motion for conditional certification, and applicable law, the
court is of the opinion that the motion for conditional
certification (Dkt. 5) should be DENIED, and the motion to
dismiss the collective action claims asserted in Argos's
complaint (Dkt. 12) should be GRANTED.
Background and Analysis
a Fair Labor Standards Act (“FLSA”) case brought
by Thomas on behalf of himself and other similarly
individuals. Dkt. 1. Thomas was a plant supervisor for
defendant Argos USA, LLC (“Argos”), which is a
business that produces and distributes cements and
aggregates. Id. His duties included performing
“batch man” duties and working the machine that
mixes concrete. Id. He also performed work as a
driver and timekeeper and occasionally disciplined employees.
Dkt. 5. He claims that he was misclassified as exempt from
overtime and that he regularly worked more than forty hours a
week but did not receive overtime pay. Id. He also
contends that there were similarly situated employees who did
not receive overtime pay. Id. He therefore brought
this lawsuit seeking overtime pay under the FLSA for himself
and those similarly situated. Id.
motion for conditional certification, Thomas contends that he
knows other plant supervisors who were paid under the same
scheme without receiving overtime pay. Dkt. 5. He contends
that “the evidence at this stage demonstrates that all
Plant supervisors were similarly situated with respect to
their working conditions and claims or potential claims
against Defendants.” Id. However, he does not
attach an affidavit or any evidence to his motion.
argues that (1) the motion for conditional certification must
be denied because it seeks to certify an identical class that
was subject to a court-approved settlement in Joseph
Soileau, Jr., et al. v. Argos USA, LLC, N.
4:18-cv-000848 (S.D. Tex. 2019) (Atlas, J.); and (2) Thomas
provides no declarations or other evidence to support his
request for a nationwide class. Dkt. 15. The court agrees
that the motion should be denied for the second reason alone
and thus need not even consider the first reason. This court
has consistently required a showing that other similarly
situated individuals want to opt in to the lawsuit. See,
e.g., Thomas v. Huntleigh, No. H-16-3648, 2018
WL 560403 (S.D. Tex. Jan. 25, 2018) (Miller, J.); Harron
v. Peveto Cos., Ltd., No. H-15-766, 2016 WL 3166850, at
*2 (S.D. Tex. June 7, 2016) (Miller, J.). Thomas has provided
no affidavit or otherwise shown that others desire to join
this lawsuit. Thomas's motion for conditional
certification is therefore DENIED.
presents similar arguments in its motion to dismiss
Thomas's collective action allegations. It contends that
Thomas has failed to adequately describe the putative class
members' job titles, job descriptions, or other
information to evidence that they are similarly situated to
Thomas. Dkt. 13 (discussing Dkt. 1). Argos filed its motion
to dismiss the collective action claims on August 12, 2019,
and Thomas did not respond to the motion. Under Southern
District of Texas Local Rule 7.4, a motion to which the
opposing party fails to respond is treated as unopposed. S.D.
Tex. L.R. 7.4. Additionally, the collective action
allegations in the complaint do not plausibly indicate that
there are other similarly situated individuals who wish to
join a collective action. See Dkt. 1. Instead,
Thomas conclusorily asserts, “upon information an
belief, ” that other “similarly situated”
employees worked in excess of forty hours and did not receive
overtime pay. See Id. Thomas does not provide job
titles or locations for these allegedly similarly situated
employees, and the proposed class definition broadly includes
“all persons who . . . worked at any business that was
owned, operated, and/or acquired by Defendant, who were not
paid overtime . . . .” Id. These allegations
do not meet the Twombly/Iqbal standard of stating a
plausible claim for relief with regard to the putative class
members. See Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937 (2009) (“[T]he pleading standard Rule 8
announces does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
id. (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.”); Bell Atl. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955 (2007) (“[W]e do not require
heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its face.
Because the plaintiffs here have not nudged their claims
across the line from conceivable to plausible, their
complaint must be dismissed.”). Accordingly,
Argos's motion to dismiss the collective action
allegations (Dkt. 12) is GRANTED.
motion for conditional certification (Dkt. 5) is DENIED.
motion to dismiss the collective action claims (Dkt. 12) is
GRANTED. The claims Thomas brings on behalf of similarly
situated individuals are DISMISSED WITHOUT PREJUDICE.
 Argos contends that Thomas would have
received notice of the Soileau settlement and that
any putative class member in this case would be identical to
the putative class members in Soileau.
 It is possible that there is no
evidence of others desiring to opt in because those that
wished to join a collective action already did so when the