United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiff's Motion in
Support of Rule 23 Class Certification (“Motion to
Certify Class” or “Motion”), (Doc. 47),
filed April 19, 2018, and Defendants' Response in
Opposition to Plaintiff's Motion in Support of Rule 23
Class Certification, (Doc. 53), filed May 31, 2018. This
matter is also before the Court on Defendants' Motion
to Strike Part of Plaintiff's Motion in Support of Rule
23 Class Certification (“Motion to Strike”),
(Doc. 52), filed May 31, 2018. Plaintiff did not file a
response to this motion and the time for doing so has passed.
In addition, this matter is before the Court on
Plaintiff's Opposed Motion for Leave to File 1-Day
Late Reply in Support of Class Certification
(“Motion to File Late Reply”), (Doc. 58), filed
July 6, 2018; Defendants' Response in Opposition to
Plaintiff's Motion for Leave to File 1-Day Late Reply in
Support of Class Certification, (Doc. 60), filed July
10, 2018; and Plaintiff's Reply in Support of Opposed
Motion for Leave to File 1-Day Late Reply in Support of Class
Certification, (Doc. 61), filed July 23, 2018.
considered the briefs, the record of the case, and the
relevant law, Defendants' Motion to Strike Part of
Plaintiff's Motion in Support of Rule 23 Class
Certification, (Doc. 52), is GRANTED IN
PART; Plaintiff's Opposed Motion for Leave
to File 1-Day Late Reply in Support of Class
Certification, (Doc. 58), is GRANTED;
and Plaintiff's Motion in Support of Rule 23 Class
Certification, (Doc. 47), is DENIED.
RWLS, LLC, is an oilfield service company headquartered in
Texas that provides ballistic and other oilfield services to
customers in Texas, Oklahoma, New Mexico, Louisiana,
Mississippi, and Pennsylvania. (Doc. 1 at 1); (Doc 53 at
2-3). Plaintiff worked for Defendants in New Mexico as an
operator and rigger from October 27, 2014 to June 19, 2015.
(Doc. 1 at 2); (Doc. 53 at 3). Plaintiff was paid on a salary
plus bonus basis until December 1, 2014, when he was changed
to an hourly employee. (Doc. 53 at 3).
16, 2017, Plaintiff filed his Complaint as a class action
under Federal Rule of Civil Procedure 23 on behalf of
“all of Defendants' Field Employees who received
pay on a salary or salary plus non-discretionary bonus basis
who worked in excess of 40 hours in at least one workweek in
New Mexico over the past three years.” (Doc. 1 at 2).
Plaintiff claims Defendants misclassified him and other
employees as exempt from overtime and paid them on a salary
plus bonus basis without overtime compensation in violation
of the New Mexico Minimum Wage Act (“NMMWA”),
N.M.S.A. § 50-4-22. Id. at 1.
filed a motion to dismiss Plaintiff's Complaint, arguing:
(1) Plaintiff failed to plead sufficient facts to support a
reasonable inference that Plaintiff received less than the
overtime pay he was due; and (2) this case cannot proceed as
a matter of law as a Rule 23 class action, but must proceed
as a collective action under the Fair Labor Standards Act
(“FLSA”). (Doc. 12). On April 23, 2018, the Court
denied Defendants' motion to dismiss, finding that
Plaintiff sufficiently stated a claim for failure to pay
overtime as required by the NMMWA, and that Rule 23 applies
to Plaintiff's NMMWA claim brought on behalf of himself
and the proposed class members. (Doc. 48). While
Defendants' motion to dismiss was pending, the Court
entered a bifurcated scheduling order, setting deadlines for
discovery related to class certification and a briefing
schedule for a class certification motion. (Doc. 28)
Motion to Certify Class, Plaintiff asks the Court to certify
a class of Defendants' employees who were misclassified
as exempt from the NMMWA's overtime provision. (Doc. 47
at 3). In support, Plaintiff contends the proposed class
satisfies all four prongs of Rule 23(a) and satisfies the
predominance and superiority requirements of Rule 23(b)(3).
Id. at 21-35. Defendants oppose the Motion, arguing
that Plaintiff has not satisfied any of the four prongs of
Rule 23(a) and that the class does not satisfy Rule 23(b)(3)
because individual issues predominate over common issues and
a class action is not the superior method to adjudicate this
lawsuit. (Doc. 53 at 6-24).
Federal Rule of Civil Procedure 23
class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348 (2011) (citation omitted). The
party moving for class certification must clearly satisfy the
four requirements of Rule 23(a) and at least one of the three
categories of classes described in Rule 23(b). See
Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).
A court has broad discretion in determining whether to
certify a class under Rule 23. Amgen Inc. v. Connecticut
Ret. Plans & Trust Funds, 564 U.S. 455, 465-66
(2013). In considering a class certification motion, the
court must conduct a rigorous analysis that may overlap with
the merits of the movant's underlying claims. Rector
v. City & Cty. of Denver, 348 F.3d 935, 949 (10th
Cir. 2003). In addition, the Tenth Circuit has held that
district courts should apply a “strict burden of
proof” to class certification issues. Wallace B.
Roderick Revocable Living Trust v. XTO Energy, Inc., 725
F.3d 1213, 1218 (10th Cir. 2013). Therefore, the party moving
for class certification may not merely allege that the Rule
23 prerequisites are met; instead the party must
“affirmatively demonstrate” that the
prerequisites exist “in fact.” Wal-Mart
Stores, 564 U.S. at 351 (“Rule 23 does not set
forth a mere pleading standard.”).
New Mexico Minimum Wage Act
NMMWA provides in relevant part that “[a]n employee
shall not be required to work more than forty hours in any
week of seven days, unless the employee is paid one and
one-half times the employee's regular hourly rate of pay
for all hours worked in excess of forty hours.”
N.M.S.A. § 50-4-22(D). The NMMWA does not specifically
define “employee, ” but provides a list of
workers who do not fall within its definition of
“employee.” § 50-4-21(C). Defendants contend
the administrative, executive, and piecework/flat-rate
exemptions, § 50-4-21(C)(2) and (5), apply to the
proposed class members. (Doc. 53 at 11-19).
Defendants' Motion to Strike
their Motion to Strike, Defendants state that Plaintiff's
Motion to Certify Class exceeds the number of pages allowed
by Local Rule 7.5 and Plaintiff did not obtain leave of court
to extend the length of his Motion. (Doc. 52 at 1).
Defendants ask the Court to either strike the eight pages
that exceed the allowable page limit, or not consider those
pages when rendering its decision. Id. In addition,
Defendants ask the Court to strike Plaintiff's reference
to a YouTube video in the Motion to Certify Class.
Id. at 1-2; (Doc. 47 at 15). Defendants state the
video “is unsubstantiated, lacks credibility, and
Plaintiff has established no foundation regarding its
authenticity or accuracy.” (Doc. 52 at 2).
did not respond to Defendants' Motion to Strike, which
constitutes consent to grant the motion. D.N.M. LR-Civ.
7.1(b). Nevertheless, the Court declines to exercise its
discretion to strike pages 28-35 of Plaintiff's Motion to
Certify Class. See In re Hopkins, 1998 WL 704710, at
*3, n.6 (10th Cir. Oct. 5, 1998) (unpublished) (explaining it
is within the Court's discretion to strike a filing that
is not allowed by the Court's local rules). The eight
pages at issue include Plaintiff's reasoning as to why
the proposed class satisfies Rules 23(a) and 23(b)(3) and are
therefore essential to the Court's consideration of
Plaintiff's Motion. Moreover, Defendants do not identify
any prejudice from the extra pages and, had Plaintiff
requested leave to exceed the page limitations, the Court
sees no reason why that request would not have been granted.
For these reasons, the Court will deny Defendants' Motion
to Strike as to the excess pages in Plaintiff's Motion to
the YouTube video, the Court agrees with Defendants that
Plaintiff failed to establish a foundation regarding the
video's authenticity or accuracy. In his Motion to
Certify Class, Plaintiff “invites the Court to watch a
video of wireline operations to understand the technical and
manual duties that all Field Employees perform at
jobsites.” (Doc. 47 at 15). Defendants contend this
video was uploaded by an unknown person, was not recorded by
Plaintiff, and does not document services performed by
Defendants or any of their employees. (Doc. 52 at 2).
Plaintiff does not dispute these assertions. Therefore, the
Court will grant Defendants' Motion to Strike as to the
video and the Court will not rely on the video in making its
Plaintiff's Motion ...