Gomez v. Glob. Precision Sys., LLC

636 F.Supp.3d 746

Robert GOMEZ, Alvaro Rodriguez, Eric Borunda, and Daniel Porras,Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. GLOBAL PRECISION SYSTEMS, LLCand Asset Protection and Security Services, LP, Defendants

EP-21-CV-00269-DCG

United States District Court, W.D. Texas, El Paso Division

Signed October 20, 2022

Erin L. Martinez, Raymond D. Martinez, Martinez & Martinez Law Firm, PLLC, El Paso, TX, Jonathan Lionel Ray Baeza, J. Baeza Law Firm PLLC, El Paso, TX, for Plaintiffs.

Barry A. Moscowitz, Leslie Wong Richardson, Thompson, Coe, Cousins & Irons, LLP, Dallas, TX, for Defendant Global Precision Systems, LLC.

Michael H. Wallis, Pro Hac Vice, Laura Flores Macom, Thornton, Biechlin, Reynolds & Guerra, L.C., San Antonio, TX, for Defendant Asset Protection and Security Services, LP.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Plaintiffs move to amend their Complaint to add about 150 new named plaintiffs. Mot. Amend, ECF No. 24; Reply, ECF No. 31. Both Defendants oppose the Motion. GPS Resp., ECF No. 27; Asset Resp., ECF No. 28. For the following reasons, the Court DENIES Plaintiffs' Motion but EQUITABLY TOLLS the statute of limitations for those individuals whom Plaintiffs seek to add as named plaintiffs. The Court tolls the statute of limitations for those people from the day Plaintiffs filed their Motion (May 13, 2022) to the day this Court decides whether this case can properly proceed as a collective action.

I. BACKGROUND

Plaintiffs are current or former employees of Defendants Global Precision Systems, LLC ("GPS") and Asset Protection and Security Services, LP ("Asset") (collectively, "Defendants").¹ Compl., ECF No. 1 ¶¶ 4-7, 13-14. Both GPS and Asset are government contractors operating at the El Paso Immigration and Customs Enforcement ("ICE") Facility. Id. ¶¶ 23-24. GPS supplies detention officers for the ICE Facility; Asset supplies detention and transportation officers. Id. ¶ 25. Plaintiffs, who are or were detention officers, allege that GPS and Asset required them to work "off the clock" before and after their scheduled hours. Id. ¶¶ 37-40. Plaintiffs argue that by engaging in this practice GPS and Asset violated the Fair Labor Standards Act ("FLSA")—specifically, 29 U.S.C. § 207—by failing to pay time-and-a-half for all hours worked in excess of 40 hours during a workweek. Compl. ¶¶ 60-67.

Plaintiffs bring this case as a potential collective action under the FLSA. Id. ¶¶ 66-67. Because collective actions are unique and complicated lawsuits, it helps to review some basics. A collective action allows one or more employees, "for and [on] behalf of himself or themselves and other employees similarly situated," to sue their employer for alleged violations of certain statutory employment requirements, such as payment of minimum wage and a cap on the number of working hours. See 29 U.S.C. § 216(b). In plainer terms: A collective action empowers a few employees to challenge employer conduct on behalf of many employees, so long as all the employees who seek recovery are "similarly situated." See id.

When employees are "similarly situated" we know that the experience of one employee is representative of the experience of another. See Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 459, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016). Because the experience of one can tell us about the experience of another, a collective action lets plaintiffs (and defendants) take advantage of representative evidence—that is, sample or statistical evidence that may establish (or negate) liability on a collective-wide basis.² See id. at 455-57, 136 S.Ct. 1036 (explaining that "representative evidence" can be "a permissible means" of "proving individual injury"). Compare id. at 458-59, 136 S.Ct. 1036 (explaining that representative evidence works to prove liability where the employees' experiences are similar), with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 355-60, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (holding that statistical evidence cannot establish class-wide liability where plaintiffs could not show a "commonality of issue[s]").

The ability to derive conclusions from a representative sample makes collective actions "representative actions." In other words, collective actions allow plaintiffs to attempt to establish liability without having to individually litigate each plaintiff's claim. See Tyson Foods, 577 U.S. at 459, 136 S.Ct. 1036 ("[T]he experiences of a subset of employees can be probative as to the experiences of all of them."); Campbell v. City of Los Angeles, 903 F.3d 1090, 1116 (9th Cir. 2018) ("[T]he theoretical alternative to collective litigation is the possible proliferation of individual actions . . . litigated seriatim.").

Because "similarly situated" is the key that unlocks the collective action, courts must first determine whether the named plaintiffs are similarly situated to other employees. See Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430, 434 (5th Cir. 2021) ("[A] district court must rigorously scrutinize the realm of 'similarly situated' workers . . . [to] determine whether [potential opt-in plaintiffs] are actually similar to the named plaintiffs."); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915-16 n.2 (5th Cir. 2008). If a court finds that employees are similarly situated, the court may facilitate sending a notice to the similarly situated employees letting them know that they can opt into the collective.³ E.g., Hoffmann-La Roche, 493 U.S. at 169-72, 110 S.Ct. 482; In re JPMorgan Chase & Co., 916 F.3d 494, 500-01 (5th Cir. 2019) ("To keep the opt-in process efficient, district courts have discretion to facilitate notice to potential plaintiffs." (cleaned up)). Those that opt into the collective are sometimes called "opt-in plaintiffs."⁴,⁵

The Fifth Circuit has recently changed the inquiry a district court must perform when considering whether to allow an FLSA case to proceed as a collective action. Courts in this Circuit used to facilitate sending a notice to potential opt-in plaintiffs after "conditionally certifying" the collective—a step that required little evidence and only a modest showing that employees were similarly situated.⁶ E.g., Sandoz, 553 F.3d at 915-16 n.2 ("The district court [ ] decides, usually based on the pleadings and affidavits of the parties, whether to provide notice to fellow employees who may be similarly situated to the named plaintiff, thereby conditionally certifying a collective action."). Under this conditional certification procedure, a district court would not finally decide whether putative plaintiffs were similarly situated to named plaintiffs until the parties completed discovery. Id.

In 2021, however, the Fifth Circuit abrogated the conditional certification procedure in Swales v. KLLM Transport Services, LLC, reasoning that "nothing in the FLSA, nor in Supreme Court precedent interpreting it, requires or recommends (or even authorizes) any 'certification' process." 985 F.3d at 440. Swales sets out a "gatekeeping framework"—or a three-step process—for the initial phase of a potential collective action. Id. at 440-41. Before proceeding with the merits phase of the case, a district court must:

(1) "identify . . . what facts and legal considerations will be material to determining whether a group of 'employees' is 'similarly situated' ";

(2) "authorize preliminary discovery accordingly;" and

(3) then determine, based on facts from that discovery, whether plaintiffs are similarly situated and whether other employees should receive an opt-in notice.

Id. at 441; see also 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives consent in writing to become such a party and such consent is filed in the court in which such action is brought."). Put differently, with conditional certification jettisoned, courts must now, at the outset of the case, determine whether any employees are similarly situated. Only then can a court determine whether the case can properly proceed as a collective action.

With that background, the Court returns to Plaintiffs' Motion. Plaintiffs don't seek to determine which employees are similarly situated and thus could opt into the collective; rather, they seek to amend their complaint to add nearly 150 individuals as new named plaintiffs. See generally Mot. As discussed below, allowing Plaintiffs to amend to add this many named plaintiffs would bypass the collective action procedure.

That said, Plaintiffs seek leave to amend in order to preserve the rights of the nearly 150 individuals by tolling the statute of limitations for those employees. Reply at 4 ("This amendment is necessary to stop the statute of limitations because each Plaintiff is entitled to their pending claims and compensation under the FLSA under the same allegations."). The Court agrees that it must preserve those individuals' rights and thus will equitably toll the statute of limitations for the potential opt-in plaintiffs that Plaintiffs seek to add as named plaintiffs.

II. DISCUSSION

Plaintiffs base their request to add named plaintiffs on Federal Rule of Civil Procedure 15(a)(2), which governs when plaintiffs may amend their pleadings. Mot. at 1-2; see generally FED. R. CIV. P. 15. Defendants protest that Rule 15(a)(2) is an inappropriate procedural mechanism for adding named plaintiffs in this case. GPS Resp. at 3-11; Asset Resp. at 3-6, 13-14. Defendants argue that, in a potential collective action, the FLSA and Swales govern the addition (and joinder) of plaintiffs, not Rule 15. GPS Resp. at 3-10; Asset Resp. at 3-6. Alternatively, Defendants argue that Federal Rule of Civil Procedure 20—which governs the permissive joinder of parties—applies instead of Rule 15. GPS Resp. at 3-4, 10-11; Asset Resp. at 13-14.

A. Adding Named Plaintiffs

Rule 15(a)(2) allows a party to amend its pleadings after its opponent or the court consents. FED. R. CIV. P. 15(a)(2). Generally, ...