United States District Court, D. New Mexico
PATRICIO CALVILLO, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 USC §216b, Plaintiffs,
BULL ROGERS, INC. and HELEN MARIE WALLACE, individually, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL
CERTIFICATION AND ORDER APPROVING IN PART AND STRIKING IN
PART PROPOSED FORM OF NOTICE AND PROPOSED CONSENT
MATTER comes before this Court upon Plaintiffs' Motion
for Notice to Potential Plaintiffs and Conditional
Certification, filed May 15, 2017 (Doc. 35). Having reviewed
the parties' briefs and applicable law, the Court finds
that Plaintiff's motion is well taken and, therefore,
GRANTED, except for certain language proposed by Plaintiff in
the proposed consent form.
is suing Defendants to recover unpaid overtime wages that
Defendants failed to pay in accordance with the FLSA.
Defendants are involved in oilfield casing services
throughout New Mexico and Texas over the last three years and
employ non-exempt employees to help perform casing
services. Plaintiff Patricio Calvillo
(“Plaintiff”) brings this action individually and
on behalf of those similarly situated casing employees
(“CE”) pursuant to the FLSA. Plaintiff also
brings this action as a Rule 23 class action pursuant to New
Mexico Wage Law. The Amended Complaint asserts two counts:
Failure to Pay Wages in Accordance with the FLSA (Count I)
and Violation of New Mexico Wage Law (Count II). Doc. 29.
motion seeks an Order allowing Notice to Potential Plaintiffs
and Conditional Certification pursuant to the collective
action provision in the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §216(b):
No employee shall be a party plaintiff to any [action to
recover under the FLSA) 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.
29 USCA § 216(b).
seek conditional certification and supervised notice on the
grounds that a group of other similarly situated non-exempt
employees (“NEE”) exist and that Defendants
subjected these individuals to illegal policies under the
FLSA, denying overtime for all overtime hours worked and as
well as overtime pay at the legally required rate.
29 U.S.C. §216(b), an employee may bring a collective
action on behalf of “similarly situated”
employees. 29 U.S.C. § 216(b). “The purpose of
collective action under the FLSA is to give ‘plaintiffs
the advantage of lower individual costs to vindicate rights
by the pooling of resources, ' and to benefit the
judicial system ‘by efficient resolution in one
proceeding of common issues of law and fact arising from the
same alleged . . . activity.'” Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).Unlike
Rule 23 class actions, putative class members under the FLSA
must opt into the class rather than opt out. Thiessen v.
General Electric Capital Corp., 267 F.3d 1095, 1102
(10th Cir.2001), cert. denied, 536 U.S. 934 (2002).
The relevant question here is whether the named Plaintiffs
are “similarly situated” to members of the
proposed class for purposes of § 216(b). Section 216(b)
does not define the term “similarly situated, ”
and there is little circuit law on the subject. However, the
Court finds that the majority of courts apply the two-step
(also called the “two-stage”) ad hoc approach in
examining provisional certification of collective actions
under § 216(b) of the FLSA. See Thiessen, 267
F.3d at 1105 (“[a]rguably, the [two-step] ad hoc
approach is the best of the three approaches outlined because
it is not tied to the Rule 23 standards.”); see
also Bayles v. American Medical Response of Colorado,
Inc., 950 F.Supp. 1053, 1063 (D.Colo.1996) (noting
holdings by a number of courts that while modern Rule 23
requirements are instructive, they are not prerequisites to
maintaining a collective action under § 216(b))
(citations omitted). The Tenth Circuit recognized that
“Congress clearly chose not to have the Rule 23
standards apply to class actions under the ADEA, and instead
adopted the “similarly situated standard [utilized by
the FLSA].” Thiessen, 267 F.3d at 1105.
an ad hoc approach, a court typically makes an initial
“notice stage” determination of whether
plaintiffs are “similarly situated.” 267 F.3d at
1102-03. At this stage, a court requires “nothing more
than substantial allegations that the putative class members
were together the victims of a single decision, policy, or
plan.” Id. (quoting Bayles, 950
F.Supp. at 1066). If the Court conditionally certifies the
class based on these allegations, discovery proceeds on the
merits, and the Court then makes a second determination,
usually prompted by defendant's motion to decertify, and
utilizing a stricter standard of “similarly
situated.” Id. at 1102-03; see
Bayles, 950 F.Supp. at 1066 (court makes “a second
determination after discovery is completed and the case is
ready for trial”). During this “second
stage” analysis, a court reviews several factors,
including the disparate factual and employment settings of
the individual plaintiffs. Id.; Hose v. Henry
Indus., Inc., 49 F.Supp.3d 906, 919 (D. Kan. 2014)
(“In the Tenth Circuit, courts consider FLSA class
actions under a two-step approach. First, the court
conditionally certifies the class, based on a modest factual
showing that the class is similarly situated.”).
second step, which occurs after the parties have engaged in
discovery and the opt-in process is completed, “the
court's inquiry is more stringent.” Mielke et
al. v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762
(N.D. Ill. 2004). Once it is known which employees will be
part of the class, the court must reevaluate the conditional
certification “to determine whether there is sufficient
similarity between the named and opt-in plaintiffs to allow
the matter to proceed to trial on a collective basis.”
Heckler v. DK Funding, LLC et al., 502 F.Supp.2d
777, 779 (N.D.Ill. 2007). At step two, the court must
consider: (1) whether the plaintiffs share similar or
disparate employment settings; (2) whether affirmative
defenses raised by the defendant would have to be
individually applied to each plaintiff; and (3) any fairness
and procedural concerns. Mielke, 313 F.Supp.2d at
762; see also Bass v. PJ Comn. Acquisition
Corp., 2010 WL 3720217, at *2 (D.Colo. 2010)
(“notice stage” determination made by examining
whether plaintiffs have made “substantial allegations
that the putative class members were together the victims of
a single decision, policy, or plan” while second step
is completed after discovery, often prompted by a motion to
decertify, and applies a more strict standard of similarly
Court has previously addressed whether a class should be
conditionally certified under the FLSA. See Maestas v.
Day & Zimmerman, LLC, 2013 WL 11311781, at *3
(D.N.M. 2013); Civ. No. 09-019 WJ/LFG (Dec. 20, 2013). The
plaintiffs in that case were current or previous officers in
a private security force employed to provide security at Los
Alamos National Laboratory. The Court granted plaintiffs'
motion for conditional class certification and ordered
Defendants to respond to the pending discovery requests by
Following the completion of this discovery, the Court
anticipates that Defendants may file a motion to decertify
the class, in which case the Court will determine whether
this case will proceed to trial on a collective basis, or
whether FLSA claims will have to be individually pursued by
the opt-in plaintiffs.
Doc. 161 at 8, Maestas v. Day et al.), Civ. No.
09-019. The Court finds that this procedure is
appropriate in this case as well.
“similarity situated” requirement of §216(b)
is also more elastic and less stringent than the requirements
found in Rule 23 class action standards. Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d at 1105 (“Congress
clearly chose not to have the Rule 23 standards apply to
class actions under the ADEA, and instead adopted the
‘similarly situated' standard (see also Landry
v. Swire Oilfield Services, L.L.C., 2017 WL 1709695, at
*27 (D.N.M., 2017) (citing Thiessen, 267 F.3d at
1105); Grayson v. K Mart, 79 F.3d 1086, 1096 (11th
Cir.1996), cited in Bishop v. Heartland Services,
Inc., 242 F.R.D. 612, 614 (D.Kan., 2007).
“similarly situated” inquiry involves a case by
case approach, which requires “nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or
plan.” Thiessen, 267 F.3d at 1102. Thus, the
burden at this stage is light or lenient, but provisional
certification is not automatic (Thiessen, 267 F.3d
at 1103 (referring to ad hoc standard a “fairly
lenient”); Landry v. Swire Oilfield Services,
L.L.C., No. 16-621, 2017 WL 1709695, at *29 (D.N.M. May
2, 2017) (noting standard is “a lenient one” and
granting conditional certification) (quoting Greenstein
v. Meredith Corp.,948 F.Supp.2d 1266, 1267 (D.Kan.
2013). A court must determine whether named and potential
plaintiffs are “similarly situated” based on
allegations in the complaint supported by sworn statements.
See Bass v. PJ Comn Acquisition Corp., 2010 ...