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Moss v. Wolf Petroleum Services, LLC

United States District Court, W.D. Louisiana, Shreveport Division

January 23, 2018




          Mark L. Hornsby U.S. Magistrate Judge


         Michael 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.

         Before 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.

         FLSA and Similarly Situated Employees

         The 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.

         The 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.

         Most 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.

         The 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.

         The 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.

         Relevant Facts

         Plaintiffs 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.

         Plaintiffs 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 Iraq. ...

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