United States District Court, W.D. Louisiana, Shreveport Division
L. Hornsby U.S. Magistrate Judge
Moss and Korry Moss (“Plaintiffs”) worked in
North Dakota as rig operators for Wolf Petroleum Services,
LLC, a Minden-based company that has provided well services
in a number of states. Plaintiffs allege that Wolf violated
the Fair Labor Standards Act (“FLSA”) by not
paying them and similarly situated employees overtime pay.
Plaintiffs filed suit against Wolf and company president Marc
Meitner on behalf of themselves and all other similarly
situated employees across the country.
the court is Plaintiffs' Motion for Conditional
Certification (Doc. 23) that requests certification as a
collective action and authority to issue notice to the other
employees and afford them an opportunity to opt in to this
suit. For the reasons that follow, the motion is granted, but
the group of eligible employees is limited to those who
worked in North Dakota in the three years prior to the
court's approval of notice.
and Similarly Situated Employees
FLSA provides that a person may maintain an action on
“behalf of himself ... and other employees similarly
situated.” 29 U.S.C. § 216(b). However,
“[n]o 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.” Id. The latter provision
distinguishes an FLSA collective action from a Rule 23 class
action. Prospective FLSA claimants, even if within the scope
of employees who are similarly situated, must affirmatively
opt-in to be bound by the action.
Fifth Circuit has not set a legal standard for
collective-action certification. Portillo v. Permanent
Workers, L.L.C., 662 Fed.Appx. 277, 279 (5th Cir. 2016).
One of the common approaches is known as the Lusardi
approach, as first described in Lusardi v. Xerox
Corp., 122 F.3d 463 (D. N.J. 1988). A district court
that applied Lusardi was affirmed in Mooney v.
Aramco Services Co., 54 F.3d 1207 (5th Cir. 1995),
although the Fifth Circuit made clear that it was not
endorsing the methodology and did not sanction any particular
methodology. 54 F.3d at 1216.
district courts in the Fifth Circuit now use the
Lusardi approach. See, e.g.,
Brown v. Body & Soul Servs., Inc., 2017 WL
2198192, *1 (W.D. La. 2017) (Hayes, M.J.); Jones v.
Colonial Nursing Home, Inc., 2017 WL 3175926 (W.D. La.
2017) (Perez-Montes, M.J.); and Salinas v. Wood Grp. PSN
Commissioning Servs., Inc., 2017 WL 6596619 (S.D. Tex.
2017) (“district courts in the Fifth Circuit usually
proceed under the Lusardi approach”). This
division has done so as well in cases such as Autry v.
City of Shreveport, 02 CV 2428 and Updite v. Delta
Beverage, 06 cv 0593. It is flexible and practical, and
it will be followed in this case.
first step under Lusardi is the notice stage. The
plaintiffs file a motion for conditional certification. The
district court makes a decision, usually based only on the
pleadings and any affidavits that have been submitted,
whether notice of the action should be given to potential
plaintiffs. The determination is made using a fairly lenient
standard. Courts usually require nothing more than
substantial allegations that the original and putative
plaintiffs were together the victims of a single decision,
policy or plan. Mooney, 54 F.3d at 1213-14;
Portillo, 662 Fed.Appx. at 280.
second step, if it occurs, is not reached until discovery is
largely completed. The defendant may file a motion for
decertification. The parties, aided by discovery, will be
able to provide the court much more information about the
claims and employees, and the court will make a factual
determination on the similarly situated question. If the
claimants are found to be similarly situated, the district
court will allow the collective action to proceed to trial.
If the claimants are not similarly situated, the district
court will decertify the action, and the opt-in plaintiffs
will be dismissed without prejudice. The original plaintiffs
will proceed to trial on their individual claims.
Mooney, 54 F.3d at 1214; Portillo, 662
Fed.Appx. at 280-281.
worked at the North Dakota location, but they ask the court
to give notice to all employees with similar jobs at several
other locations. The principal disagreement between the
parties with respect to the notice stage is the geographic
scope of the employees to be notified. Wolf argues that
Plaintiffs have presented enough facts to justify notice to
only their former co-workers in the North Dakota location.
alleges in the first amended complaint that they worked for
Wolf and Mr. Meitner as “rig-operators” in North
Dakota. Doc. 4, ¶¶ 5 and 6. Plaintiffs allege that
Wolf employed them and similarly situated employees to
maintain and service customer wells. Wolf provided a variety
of services, including chemical sales, torque and testing,
well swabbing, pump truck services, hydrostatic testing,
batch treatment, and other well services. The service areas
were northwest Louisiana, east Texas, south Texas, west
Texas, North Dakota, Pennsylvania, West Virginia, Alaska, and