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Sheffield v. Stewart Builders, Inc.

United States District Court, S.D. Texas, Houston Division

October 30, 2019

Louis Sheffield, Individually and on behalf of all Others Similarly Situated, Plaintiff,
v.
Stewart Builders, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United States District Judge.

         Pending before the court are plaintiff Louis Sheffield's (1) motion for conditional certification of a collective action (Dkt. 21); and (2) motion for approval and distribution of notice and for disclosure of contact information (Dkt. 22). Also pending before the court are defendant Stewart Builders, Inc.'s (“Stewart”) (1) motion to strike the consent of Glenn Gryder (Dkt. 19); and (2) motion to strike the consent of Jereamy Clayton (Dkt. 20). After reviewing the motions, responses, replies, relevant exhibits, and applicable law, the court is of the opinion that Stewart's motions to strike (Dkts. 19, 20) should be DENIED and Sheffield's motion for conditional certification (Dkt. 21) should be GRANTED. The court DEFERS ruling on the motion for approval and distribution of notice (Dkt. 22) as outlined below.

         I. Background

         Sheffield filed this Fair Labor Standard Act (“FLSA”) claim on behalf of himself and those similarly situated on March 20, 2019. Dkt. 1. He filed a motion for conditional certification of an FLSA class (Dkt. 9) and motion for approval and distribution of notice (Dkt. 10) on May 16. In his motion for conditional certification, Sheffield argued that the court should decline to consider the third element of the traditional test for conditional certification. Dkt. 9. The court, however, as is its custom, required a showing under the third prong and, accordingly, denied Sheffield's motion for conditional certification and denied the motion for approval and distribution of notice as moot. Dkt. 10. It issued that order on July 10, 2019, and it entered a scheduling order on July 23, 2019. Dkt. 10, 17. The scheduling order required that all amendments to the pleadings be made by August 23, 2019. Dkt. 17. The scheduling order indicated that the date to join new parties was “N/A.” Id. Sheffield filed consents to join a collection action by Glenn Gryder and Jereamy Clayton on August 12, 2019. Dkt. 18. Stewart moved to strike both consents on August 15, 2019. Dkts. 19, 20. Sheffield filed his second motion for conditional certification and his second motion for approval and distribution of notice on August 15, 2019. Dkts. 21, 22. The motions to strike and motions for certification and approval are all ripe for disposition.

         II. Motions to Strike

         Stewart files its motions to strike pursuant to Federal Rule of Civil Procedure 12(f), arguing that the consents are “impertinent” to the court's previous order. Dkts. 19, 20. It also argues that the court has already denied conditional certification and entered a scheduling order stating that new parties cannot be joined. Dkts. 19, 20. Additionally, it contends that the factors courts typically apply to untimely filed consents support exclusion of these consents. Dkts. 19, 20.

         Sheffield argues that Rule 12(f) applies to striking pleadings, not consents. Dkts. 24, 25. It also contends that even if the court were to apply the rule, Stewart has not made the requisite showing of prejudice. Dkts. 24, 25. Sheffield contends that no deadlines have passed that preclude the participation of Clayton and Gryder, pointing out that the consents were filed on August 12, and the scheduling order permitted amendments to the pleadings through August 23. Dkts. 24, 25. With regard to the argument that the scheduling order did not allow new parties, Sheffield argues that joinder is not the same as participating in a collective action. Dkts. 24, 25. Sheffield points out that the court denied its motion for conditional certification without prejudice. Dkts. 24, 25. Finally, Sheffield argues that the factors courts consider when determining whether to permit consents after the deadline weigh in favor of permitting the consents here. Dkts. 24, 25.

         In reply, Stewart argues that the court's scheduling order stated “N/A” on the blank for the deadline to add new parties and Sheffield has exhibited no good cause for amending that schedule. Dkts. 26, 27. It additionally contends that the court has inherent power to strike the consents and that the caselaw Sheffield cites to support joining new parties relates to joining parties under Rules 19 and 20, not adding opt-in plaintiffs in an FLSA collective action. Dkts. 26, 27. Stewart also argues that tripling the size of the case by allowing Gryder and Clayton to join is detrimental to the concept of judicial economy. Dkts. 26, 27.

         The court denied the motion for conditional certification on July 10, and the parties filed a joint discovery/case management plan under Rule 26(f) on July 19. In that plan, the parties stated that they did not anticipate any additional parties would be included other than “individual who may opt-in to this case.” Dkt. 16. Thus, when the court entered its scheduling order on July 23, it entered “N/A” for the deadline to add new parties. Dkt. 17. This entry made perfect sense at the time because on the date the scheduling order was entered it appeared there would be no opt-in plaintiffs. Now, Sheffield has filed a renewed motion to certify and has two individuals who would like to opt in to the lawsuit. The court finds that (1) it has inherent power to strike the consents, if it finds striking appropriate; but (2) it is best to treat the current issue as a motion to amend the scheduling order. The court agrees with Sheffield that Rule 12(f) does not apply. Under Rule 12(f), a “court may strike from a pleading an insufficient defense or any redundant, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The consents are clearly not part of the pleading.

         When a court sets a deadline pursuant to a scheduling order and the deadline has passed, courts in the Fifth Circuit apply Rule 16(b)(4) to determine whether leave for a modification to the scheduling order should be granted. S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). Under Rule 16(b)(4), a scheduling order “may be modified only for good cause and with the Judge's consent.” Fed.R.Civ.P. 16(b)(4). In determining whether good cause for modification exists, courts considering whether to allow an amendment to a pleading consider the following factors: “(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) the potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.” S&W Enters., L.L.C., 315 F.3d at 536 (citations, quotations, and alterations omitted). Here, the court is not considering an amendment to a pleading, but it finds that the factors of (1) explanation; (2) importance; (3) potential prejudice; and (4) availability of a continuance to cure prejudice are equally applicable.

         The court finds that there is good cause to modify the scheduling order to make room for opt in FLSA plaintiffs. While the explanation is lacking, it is clearly an important modification as there are two individuals who would like to opt into the lawsuit. The potential prejudice is minimal as the consents were filed shortly after the court issued its order and before the deadline for amendments to pleadings, and the delay in the case-should to court decide to allow the case to proceed collectively at this point-is not significant since the case was originally filed as a collective action anyway. The motion to strike the consents is DENIED.

         III. Motion for Conditional Certification

         A. Legal Standard

         Section 207(a) of the FLSA requires covered employers to compensate nonexempt employees at overtime rates for time worked in excess of forty hours per week. 29 U.S.C. § 207 (a) (2012). Section 216(b) creates a cause of action against employers who violate the overtime compensation requirements. Id. § 216 (b). Section 216(b) also permits an employee to bring a collective action lawsuit against an employer on “behalf of himself . . . and other employees similarly situated.” Id. Employees who wish to participate in a § 216(b) collective action must affirmatively “opt-in” to the action by filing a written consent with the court. Id. The “opt-in” procedure of § 216(b) illustrates its “fundamental, irreconcilable difference” from a class action under Federal Rule of Civil Procedure 23(c); in a Rule 23 ...


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