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Halle v. Galliano Marine Service, LLC

United States District Court, E.D. Louisiana

April 12, 2018


         SECTION "L" (5)

          ORDER & REASONS

         Before the Court are Plaintiff's Motions for Conditional Certification, R. Doc. 46, and Equitable Tolling, R. Doc. 58. Having heard oral argument and considered the parties' briefs and the applicable law, the Court now issues this Order and Reasons.

         I. BACKGROUND

         This lawsuit arises from Plaintiff's claim that his employer failed to pay him overtime wages for hours he worked in excess of 40 hours per week. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331. R. Doc. 1 at 1.

         Plaintiff Kyle Halle (“Halle”) was employed by Defendant C-Innovation as an ROV (remotely operated (underwater) vehicle) Technician and ROV Supervisor, from approximately May 12, 2009 through his termination on October 12, 2015. R. Doc. 15-1 at 1. At the time of his termination, Halle was an ROV Supervisor. R. Doc. 15-1 at 1-2. Halle's work assignments were typically four weeks in duration, involving a 4-week voyage on an ROV support vessel. R. Doc. 15-1 at 2. For each of these voyages, Halle was assigned to a particular ROV support vessel, and ate, slept, lived, and worked aboard that vessel. R. Doc. 15-1 at 2.

         An ROV crew aboard the vessel would work 12-hour shifts for 7 days a week (84 hours per week) during the voyage. R. Doc. 15-1 at 2. Crew members were not paid overtime, but were paid a daily rate that was guaranteed whether or not the employee actually worked, such as if they were ill. R. Doc. 15-1 at 2. Plaintiff claims that this pay structure violates the Fair Labor Standards Act, which provides that an employer can pay non-exempt employees on a day-rate basis if the employee also receives overtime pay (at one and one-half times the regular hourly rate) for hours worked in excess of 40 hours per week. R. Doc. 1 at 3.


         On October 30, 2015, Plaintiff filed this action seeking to recover unpaid overtime wages, liquidated damages, and attorney's fees and costs under the FSLA. R. Doc. 1 at 6. On December 23, 2015, Defendant answered the complaint. R. Doc. 12. On January 25, 2016, Defendants filed a Motion for Summary Judgment, arguing that Plaintiff's work as an ROV Technician and Supervisor was water-based, voyage-based, and vessel-based, and therefore under Fifth Circuit law, he was a seaman under the FLSA and exempt from its overtime provisions. R. Doc. 15-1 at 6. On February 22, 2016, the Court granted Defendant's motion. After the Court denied Plaintiff's Motion for Reconsideration, R. Doc. 30, Plaintiff appealed the decision to the Fifth Circuit, R. Doc. 32. The Fifth Circuit found that the record did not support that Halle's work in calculating coordinates and communicating that information to the captain clearly establishes that he is a seaman. Therefore, the Fifth Circuit held that defendant has not established as a matter of law that the seaman exception applies, and remanded the case to this Court. Halle, 855 F.3d at 296.


         A. Plaintiff's Motion for Conditional Certification (R. Doc. 46)

         On March 12, 2018, Plaintiff moved for conditional certification of an opt-in class under the FLSA. R. Doc. 46. Plaintiff alleges that Defendant had a uniform pay practice that involved paying ROV workers a day rate with no overtime wages. R. Doc. 46-1 at 1, 3, 8. Plaintiff further alleges that the job duties of the ROV technicians and ROV supervisors are similar and that the day rate applied to both groups. R. Doc. 46-1 at 1, 3. For these reasons, Plaintiff asks the court to conditionally certify a class including all ROV personnel working for Defendant from October 2012 through the present. R. Doc. 46-1 at 10. Plaintiff also asks the court for the following: 1) notice following a proposed schedule, 2) email notice, 3) Plaintiff's counsel be permitted to follow-up with potential class members by phone, and 4) Defendants be prohibited from contacting potential class members. R. Doc. 46-1 at 10-14.

         Defendants respond in opposition arguing that the putative class and proposed notice should be amended. R. Doc. 52. Defendants do not oppose the general class certification of ROV technicians or the request that Defendants be prohibited from communicating with potential class members. R. Doc. 52 at 2. However, Defendants argue that the class should not include ROV supervisors because Plaintiff did not allege, or mention, supervisors in his complaint, supervisors' jobs are different from technicians so they are not similarly situated, and supervisors are exempt from the FLSA overtime provisions. R. Doc. 52 at 3-6. Defendants also argue that the collective action time period should be limited to the maximum statutory period provided by the FLSA, three years. R. Doc. 52 at 7. Further, because they no longer utilize the day rate pay practice, Defendants argue that the time period should be limited to that time when the day rate pay practice was used. R. Doc. 52 at 7. Finally, Defendant argues that portions of the proposed notice are improper and should be modified. R. Doc. 52 at 7.

         B. Plaintiff's Motion for Equitable Tolling (R. Doc. 58)

         Plaintiff moves for equitable tolling for potential class members due to the delay caused by Defendant's motion for summary judgment. R. Doc. 58. Plaintiff argues that equitable tolling is needed because of the delay in sending notice, otherwise potential plaintiffs will be prejudiced by the delay. R. Doc. 58-1 at 2. Plaintiff further argues that Defendants will not be prejudiced by equitable tolling because they have been aware of the claims and number of potential plaintiffs during the delay. R. Doc. 58-1 at 7. Therefore, Plaintiff moves the Court for equitable tolling ...

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