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Gandy v. RWLS, LLC

United States District Court, D. New Mexico

March 28, 2019

RICK GANDY, Plaintiff,
v.
RWLS, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          HONORABLE JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE.

         THIS 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.

         Having 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.

         I. Background

         Defendant 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).

         On May 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.

         Defendants 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)

         In his 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).

         II. Legal Standard

         A. Federal Rule of Civil Procedure 23

         “The 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.”).

         B. New Mexico Minimum Wage Act

         The 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).

         III. Analysis

         A. Defendants' Motion to Strike

         In 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).

         Plaintiff 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 Certify Class.

         Regarding 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 decision.

         B. Plaintiff's Motion ...


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