Romero v. Clean Harbors Surface Rentals USA, Inc.

368 F.Supp.3d 152

Chad ROMERO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

v.CLEAN HARBORS SURFACE RENTALS USA, INC., Defendant.

Civil Action No. 18-10702-PBS

United States District Court, D. Massachusetts.

Signed March 21, 2019

Philip J. Gordon, Kristen M. Hurley, Gordon Law Group, Boston, MA, Michael Josephson, Pro Hac Vice, Richard M. Schreiber, Pro Hac Vice, Michael Josephson, Josephson Dunlap Law Firm, Houston, TX, for Plaintiff.

James N. Boudreau, Greenberg Traurig LLP, Philadelphia, PA, John F. Farraher, Jr., Greenberg Traurig LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

Patti B. Saris, Chief United States District Judge

INTRODUCTION

Plaintiff Chad Romero ("Romero") brings this action against Defendant Clean Harbors Surface Rentals USA, Inc. ("Clean Harbors") under the federal Fair Labor Standards Act ("FLSA") to collect unpaid overtime wages on behalf of himself and other similarly situated individuals who worked for Clean Harbors. Two motions are before the Court: (1) Clean Harbors' motion to dismiss for failure to join a required party under Rule 19 of the Federal Rules of Civil Procedure, and (2) Romero's motion to conditionally certify a collective action under the FLSA.

After hearing, the Court DENIES Clean Harbors' motion to dismiss (Dkt. No. 38) and ALLOWS Romero's motion for conditional certification (Dkt. No 40).

FACTUAL BACKGROUND

When all reasonable inferences are drawn in favor of the non-moving party, the Second Amended Complaint alleges the following facts, many of which are disputed.

I. Parties

Romero worked for Clean Harbors from July 2016 to February 2018. He was a solids control technician, operating Clean Harbors' equipment to separate particles and debris from fluids used for oil and natural gas drilling so the fluids could be reused in the drilling process.

Clean Harbors is headquartered in Norwell, Massachusetts and operates throughout the United States, Canada, and Mexico. It provides environmental, energy, and industrial services to companies in the chemical, energy, and manufacturing markets, including the oil and natural gas industry. Clean Harbors contracts with third-party staffing companies to supply workers for certain projects.

II. Employment Relationship

Romero regularly worked over 40 hours a week for Clean Harbors. Rather than pay overtime, Clean Harbors classified employees like Romero as independent contractors and paid them a daily rate, or a "day rate," with no overtime pay. Romero was paid $275 per day when he started working for Clean Harbors and $325 per day by the time he left, regardless of how many hours over 40 he worked in a given week. He and other day-rate workers often worked at least 12 hours a day, seven days a week–or more than 84 hours per week.

Romero's alleges that his classification as an independent contractor was improper because, in fact, Clean Harbors was his employer. Clean Harbors directed his rate of pay; he reported directly to Clean Harbors, which coordinated his work and set his schedule; Clean Harbors dictated his work locations; he was required to follow Clean Harbors' policies and procedures; and Clean Harbors prohibited him from working for other employers or subcontracting his work for Clean Harbors. Although Clean Harbors "required Romero to go through a contracting company to be paid," information related to his pay rate is reflected in its payroll records. The same is true of all other solids controls workers who worked for Clean Harbors.

Clean Harbors not only knew its workers put in more than 40 hours per week, but it also required them to do so. Clean Harbors failed to pay these workers overtime despite knowing that they were not exempt from the FLSA's overtime provisions.

III. Procedural History

An initial complaint was filed in this action in April 2018 and an amended complaint was filed in August 2018, both by another Clean Harbors solids control worker, Trent Metro ("Metro"). The initial and amended complaints named additional entity defendants from the same corporate family as Clean Harbors. In August 2018, Metro voluntarily dismissed from the case the other entity defendants, leaving Clean Harbors as the only defendant. In September 2018, due to the discovery of an arbitration agreement in his employment contract, Metro requested that his individual claims be dismissed from the action and that he be substituted as named plaintiff. On September 13, 2018, with leave of the Court, Romero filed the Second Amended Complaint, which substituted him as named plaintiff in the place of Metro.

On November 30, 2018, Clean Harbors moved to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 19 for failure to join a required party. On the same day, Romero moved to conditionally certify an FLSA collective action. On December 21, 2018, the parties opposed each other's motions, and, on January 4, 2019, the parties replied in support of their respective motions. A hearing was held on both motions on January 8, 2019.

Motion to Dismiss

I. Legal Standard

The first step in a Rule 19 analysis is to determine whether an absent party is a "required party" under Rule 19(a). Bacardi Int'l Ltd. v. V. Suárez & Co., 719 F.3d 1, 10 (1st Cir. 2013). There are three ways to qualify as required party: (1) if, in the party's absence, the court cannot afford complete relief among the existing parties; (2) if disposing of the case without the absent party will, as a practical matter, impair or impede the absent party's ability to protect a claimed interest; or (3) if deciding the case in the party's absence will leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of a claimed interest in the case. Fed. R. Civ. P. 19(a). The burden is on the party raising a Rule 19 defense to show that the absent party is needed for a just adjudication. See In re Veluchamy, 879 F.3d 808, 819 n.4 (7th Cir. 2018).

If the Court finds that the absent party is a required party, it must then determine whether joinder is feasible. See Fed. R. Civ. P. 19(b). If joinder is not feasible, the Court must next determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed." Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 18 (1st Cir. 2008) (quoting Fed. R. Civ. P. 19(b) ). In other words, the Court must determine whether the absent party is "indispensable" such that there can be "no viable lawsuit without the missing party." Id. at 20. Under Rule 19(b), the Court considers four factors in making this assessment: (1) the extent to which a judgment rendered in the party's absence might prejudice that party or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by protective provisions in the judgment, shaping the relief, or other measures; (3) whether a judgment rendered in the party's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Fed. R. Civ. P. 19(b). If the absent party is "indispensable," then the case must be dismissed. Picciotto, 512 F.3d at 16.

II. Discussion

A. Materials Outside the Pleadings

Romero raises the threshold issue of whether it is appropriate to consider materials outside the pleadings in deciding a Rule 19 motion. Specifically, Romero objects to Clean Harbors' reliance on two declarations submitted in support of its motion to dismiss.

The first declaration is made by Nathan McCullough ("McCullough"), a branch manager responsible for Clean Harbor's Wyoming operations, from which the following information is drawn. The demand for workers in the oil and gas industry rapidly rises and falls. In order to meet these fluctuating needs, Clean Harbors contracts with a variety of staffing companies to supplement its workforce on an as-needed basis. One of these staffing companies was Drilling Professionals, LLC ("Drilling Professionals"), which contracted directly with Romero. The terms of Clean Harbors' agreements with these staffing companies vary widely, although McCullough does not specify how. Clean Harbors negotiated "rates for services" with Drilling Professionals and other staffing companies, but never directly negotiated terms with any supplied worker. Workers received their pay and tax-related documents directly from the staffing companies.

Romero worked at several drilling sites in Wyoming operated by one of Clean Harbors' clients, Ultra Petroleum Corp. ("Ultra Petroleum"). Drilling Professionals conducted a background check and drug test on Romero before assigning him to a work site. Romero traveled to the site in his own vehicle and operated equipment that Ultra Petroleum leased from Clean Harbors (and other third parties). Clean Harbors did not pay Romero or determine Romero's pay. Rather, Drilling Professionals invoiced Clean Harbors for the work Romero performed. Clean Harbors submitted three such invoices from December 2016 and January 2017 as exhibits to McCullough's declaration.

The second declaration is made by Clean Harbors' counsel, who avers that Drilling Professionals is a Texas limited liability corporation with its principal place of business in Midland, Texas. Clean Harbors also submitted as an exhibit to the declaration a document from the website of the Texas Secretary of State showing that Drilling Professionals is a registered Texas business.

Clean Harbors has styled its Rule 19 motion as a motion for judgment on the pleadings pursuant Federal Rule of Civil Procedure 12(c). In deciding motions for judgment on the pleadings, the Court cannot consider materials outside the pleadings without converting the motion into one for summary judgment. See DeMayo v. Nugent, 517 F.3d 11, 19 (1st Cir. 2008). However, a party also may move to dismiss for failure to join a party under Rule 19 pursuant to Rule 12(b)(7). Fed. R. Civ. P. 12(b)(7). Such a motion...