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Tuggle v. Rockwater Energy Sols., Inc.

United States District Court for the Southern District of Texas

December 3, 2019, Decided; December 3, 2019, Filed, Entered

Civil Action H-18-4746


Memorandum and Recommendation

Aaron Plummer has moved for conditional certification of a class. (D.E. 56.) The court recommends that the motion be granted.

1. Background and Procedural Posture

James Tuggle, the original plaintiff, filed this suit on June 15, 2018, individually and on behalf of all others similarly situated, seeking recovery of unpaid overtime wages. According to the live complaint, Rockwater failed to pay overtime compensation to flowback operators as required under the Fair Labor Standards Act (FLSA).

Although Tuggle settled his claims through arbitration, Aaron Plummer joined the lawsuit and filed a motion to conditionally certify a class on June 12, 2019. (D.E. 56.) He asks the court to conditionally certify and send notice to:

All flowback operators who worked for Rockwater during the past [three] years who were classified as independent contractors and paid a day-rate with no overtime.

(D.E. 52 at 2.) During the relevant time frame, [*3]  Rockwater hired workers through staffing companies such as Energy Professionals Group LLC (EPG).

In its response, Rockwater asserts that Plummer is not similarly situated to putative class members, that some class members are subject to mandatory arbitration, and that some class members may be seeking recovery in another lawsuit.

2. Legal Standard

The FLSA requires covered employers to pay employees overtime for any workweeks longer than forty hours. 29 U.S.C. § 207(a). Employees can sue employers violating FLSA regulations both individually and on behalf of "other employees similarly situated." 29 U.S.C. § 216(b). These similarly-situated individuals have the option to join the collective action. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008).

District courts have discretion to send notice to potential opt-in plaintiffs and many courts analyze the certification process using what is commonly known as the "Lusardi" method. In re JPMorgan Chase & Co., 916 F.3d 494, 500 & n.9 (5th Cir. 2019) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)). Under Lusardi, the district court first determines whether individuals are similarly situated at the notice stage, generally based only on pleadings and affidavits. Mooney v. Aramco Svcs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). This "fairly lenient standard . . . typically results in conditional certification of a representative class." Id. at 1214.

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2019 U.S. Dist. LEXIS 219353 *; 2019 WL 7040330

James Tuggle, individually and on behalf of all others similarly situated, Plaintiffs, v. Rockwater Energy Solutions, Inc., Defendant.

Subsequent History: Adopted by, Class certification granted by Tuggle v. Rockwater Energy Sols., Inc., 2019 U.S. Dist. LEXIS 218504 (S.D. Tex., Dec. 19, 2019)

Prior History: Tuggle v. Rockwater Energy Sols., 2019 U.S. Dist. LEXIS 219293 (S.D. Tex., Dec. 3, 2019)


certification, arbitrate, contractors, notice, similarly situated, arbitration agreement, employees, collective action, overtime, recommends, day-rate, flowback, damages, parties, join, putative class member, arbitration clause, non-signatory, lawsuit