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Casarez v. Producers Service Corp.

United States District Court, S.D. Ohio, Eastern Division

May 25, 2018

JESUS CASAREZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

          Kim Jolson, Magistrate Judge



         This matter is before the Court on the Motion for Conditional Certification of Collective Action, For Disclosure of Potential Opt-In Plaintiffs' Contact Information, and To Send Court-Approved Notice filed by Plaintiff Jesus Casarez, Individually and on Behalf of All Others Similarly Situated ("-Motion to Conditionally Certify a Class and Provide Notice"). (ECF No. 7.) For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs Motion to Conditionally Certify a Class and Provide Notice.


         Defendant Producers Service Corporation ("Producers" or "Defendant") provides high pressure pumping, shale fracturing and acidizing, and water pumping services in the oil and gas industry. (Casarez Decl. ¶ 4, ECF No. 7-7.) Defendant operates in oil and gas fields throughout the states of Ohio, Oklahoma, West Virginia, New Mexico, Pennsylvania, and Texas. (Id. ¶ 18.) Plaintiff Jesus Casarez ("Mr. Casarez" or "Plaintiff) worked as an oilfield equipment operator for Producers from July to November of 2016. (Id. ¶ 3.)

         On December 14, 2017, Mr. Casarez filed this action, both individually and on behalf of all others similarly situated, alleging that "Defendant does not pay its non-management oilfield operations employees overtime wages as required by the [Fair Labor Standards Act] [("FLSA")], 29 U.S.C. § 201 et seq" (Compl. ¶ 4, ECF No. 1.) Mr. Casarez moves as a purported representative of the proposed class. (Id. ¶¶ 1, 4.)

         On January 23, 2018, Producers filed its Answer to the Complaint, denying all of the claims in it. (ECF No. 5.)

         On March 14, 2018, Mr. Casarez filed the Motion to Conditionally Certify a Class and Provide Notice, which is the subject of this Opinion and Order. (ECF No. 7.) He moves for conditional certification of a collective action under the FLSA, 29 U.S.C. § 216(b), asking the Court to certify the following class:

All current and former employees of Defendant who were employed as non-management oilfield operations employees for Defendant at any time since December 14, 2014.

(Pls.' Mem. in Support of Mot. to Cond. Certify a Class and Provide Notice at 2, ECF No. 7-1.)

         On March 21, 2018, the Magistrate Judge held the Preliminary Pretrial Conference, memorialized in the Memorandum of First Pretrial Conference, at which she directed the parties to engage in informal discovery for 30 days, and file a status report with her by April 20, 2018. (ECF No. 9.) Pursuant to that Order, the parties provided their status report via electronic mail ("email").

         On April 25, 2018, the Magistrate Judge set the briefing schedule on the issue of conditional class certification. (ECF No. 14.) On May 4, 2018, Defendant filed its Memorandum in Opposition to Plaintiff's Motion (ECF No. 15), and Plaintiff filed a Reply Brief in Support of his Motion on May 16, 2018 (ECF No. 17). Plaintiffs Motion to Conditionally Certify a Class and Provide Notice is now ripe for review.


         "The FLSA 'was enacted by Congress to be a broadly remedial and humanitarian statute, ' Dunlop v. Carriage Carpet Co., 548 F.2d 139, 143 (6th Cir. 1977), and in interpreting the FLSA the Supreme Court has long noted that the statute attempted to mitigate the effects of the 'unequal bargaining power . . . between employer and employee, ' Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945)." Myers v. Marietta Meml. Hosp., 201 F.Supp.3d 884, 889 (S.D. Ohio 2016). "Due to the 'remedial nature of this statute, ' the employee's burden 'of proving that he performed work for which he was not properly compensated' should not be made 'an impossible hurdle for the employee.' " Id. (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds as recognized in Integrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513, 516-17 (2014)). The FLSA requires employers to pay their employees "at a rate not less than one and one-half times the regular rate" for work exceeding forty hours per week. 29 U.S.C. § 207(a)(1).

         The FLSA provides that a court may certify a collective action brought "by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Similarly situated employees are permitted to "opt into" the collective action. Myers, 201 F.Supp.3d at 889-90 (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The lead plaintiff bears the burden of showing that the proposed class members are similarly situated to the lead plaintiff. Id. at 890 (citing O 'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 136 S.Ct. 663, 669 (2016)). The FLSA does not define "similarly situated" and neither has the Sixth Circuit. Id. "But notably, plaintiffs seeking to certify a collective action under the FLSA face a lower burden than plaintiffs seeking class certification under Federal Rule of Civil Procedure 23." Id. "District courts conduct a two-phase inquiry to determine whether plaintiffs are similarly situated: conditional and final certification." Id. (citing Frye v. Baptist Mem'l Hosp., Inc., 495 Fed.Appx. 669, 671 (6th Cir. 2012)).

         "In the first phase, the conditional-certification phase, conducted at the beginning of the discovery process, named plaintiffs need only make a 'modest factual showing' that they are similarly situated to proposed class members." Id. (citing Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015); Comer, 454 F.3d at 547). The standard at the first step is "fairly lenient. .. and typically results in 'conditional certification' of a representative class." Id. (citing Comer, 454 F.3d at 547). As this Court recently explained in Myers v. Marietta Memorial Hospital:

Plaintiffs are similarly situated "when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." O 'Bhen, 575 F.3d at 585. Showing a "unified policy" of violations is not required. Id. at 584. The named plaintiff "need only show that [her] position is similar, not identical, to the positions held by the putative class members." Lewis v. Huntington Nat'l Bank, 789 F.Supp.2d 863, 867-68 (S.D. Ohio 2011) (alteration omitted); see also Comer, 454 F.3d at 546-57.

201 F.Supp.3d at 890.

         "If conditional certification is granted, 'plaintiffs are permitted to solicit opt-in notices, under court supervision, from current and former employees.' " Id. (citing Cornell v. World Wide Bus. Servs. Corp., No. 2T4-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio Nov. 2, 2015)).

         Determining whether to allow an action to proceed as a collective action is left to the trial court's discretion. Comer, 454 F.3d at 546. Because the statute of limitations on an FLSA claim continues to run until written consent is filed with the trial court, it is important that notice of the collective action be given to all potential opt-in plaintiffs as soon as practicable so they can decide whether to participate in the lawsuit. Lewis v. Huntington Nat'l Bank, 789 F.Supp.2d 863, 867 (S.D.Ohio 2011).

         After notice has been sent and discovery has been completed, a defendant can move to decertify the class, challenging a court's preliminary determination that other employees are similarly situated. Meyers, 201 F.Supp.3d at 890. At this second stage, "courts 'examine more closely the question of whether particular members of the class are, in fact, similarly situated.' " Id. (citing Comer, ASA F.3d at 547). "If [a court] concludes that they are similarly situated, the collective action proceeds to trial; if not, the court de-certifies the class, dismisses the opt-in plaintiffs without prejudice, and proceeds to trial on the named plaintiffs)]' individual claims." Sisson v. OhioHealth Corp., 2:13-CV-0517, 2013 WL 6049028, at *2 (S.D. Ohio Nov. 14, 2013) (citing Smith v. Lowe's Home Ctrs., 236 F.R.D. 354, 357 (S.D. Ohio 2006)).


         Plaintiff moves for conditional certification of a collective action class for all of Producers' non-management oilfield operations employees, disclosure of potential opt-in plaintiffs' contact information, and to send court-approved notice to the potential opt-in plaintiffs. Defendant opposes (A) conditional certification of a class, and (B) the Plaintiffs proposal to send the opt-in notices via text message.

         A. Certification of a Class of AH Non-Management ...

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