Paulus v. Rigstaff Texas LLC

Full title: WELLEM MARCH PAULUS, ZAINAL TAMPUBULON, on behalf of themselves and a…

Court: United States District Court, D. New Mexico

Date published: May 4, 2009

Civil Action No. 1:08-CV-1104 (BB) (D.N.M. May. 4, 2009)

Opinion

Civil Action No. 1:08-CV-1104 (BB).

May 4, 2009

MEMORANDUM OPINION AND ORDER PERMITTING CONDITIONAL CERTIFICATION

BRUCE BLACK, District Judge

THIS MATTER is before the Court on Plaintiffs' Motion for Conditional "Collective Action" Certification Under the Fair Labor Standards Act [Doc. 47]. The Court having reviewed all submissions of counsel, finds the motion supported by law and it will be Granted.

Discussion

In 2005, RigStaff Texas LLC and RigStaff Ltd. ("RigStaff Defendants") applied for and received 40 temporary visas for foreign workers to fill jobs entitled "Equipment Operator I." Plaintiffs are two Indonesian workers who were recruited by RigStaff to come to the United States to work for Defendant Schlumberger Technology Corporation under temporary H-2B visas. Plaintiffs filed this lawsuit on November 21, 2008, alleging inter alia a violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Plaintiffs complain that Defendants breached their work contracts and deprived Plaintiffs and other similarly situated H-2B workers of overtime payments required by FLSA. Plaintiffs brought their FLSA claims as an FLSA representative action and their state law claims as a Rule 23(b)(3) class action on behalf of similarly situated H-2B workers. Plaintiffs now move to conditionally certify this action as an FLSA collective action on behalf of the following class:

All persons who worked for Schlumberger Technology Corporation under H-2B visas that were issued by the RigStaff Defendants

Both the RigStaff and Schlumberger Defendants recognize that "the weight of the law in this circuit allows for the conditional certification of this case as a collective action, pursuant to the Fair Labor Standards Act ("FLSA"), under a `quite lenient' standard, with conditional certification being based on `nothing more than substantial allegations that the putative class members were . . . subject to a single decision or policy.'" Wood v. Sundance Prof'l Servs., LLC, No. 08-2392-JAR, 2009 U.S. Dist. LEXIS 15732, at *4 (D. Kan. Feb. 26, 2009); Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001); see Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan. 2004) (noting that the "standard for certification at the notice stage is a lenient one that usually results in class certification"). (Schlumberger Br. p. 2); ( see also RigStaff Br. p. 2).

The Court has considered RigStaff's objection to the form of Plaintiffs' Consent to Sue and attaches an approved form hereto as Exhibit A. The Court will reserve resolution of the statute of limitations issue until, and if, Plaintiffs materialize whose claims Defendants' believe to be outside the applicable limitations period.

ORDER

Plaintiffs' Motion for certification as a Fair Labor Standards collective action on behalf of all persons who worked for Schlumberger Technology Corporation under H-2B visas issued to RigStaff Texas LLC or RigStaff Ltd. is conditionally GRANTED.

SO ORDERED.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO WELLEM MARCH PAULUS et al. Plaintiffs, Civil Action No. v. 1:08-cv-1104 (BB) RIGSTAFF TEXAS LLC, et al. Defendants

NOTICE OF LAWSUIT WITH OPPORTUNITY TO JOIN

THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE FEDERAL DISTRICT COURT, UNITED STATES DISTRICT JUDGE BRUCE D. BLACK; HOWEVER, THE COURT HAS TAKEN NO POSITION REGARDING THE MERITS OF THE CASE.

TO: All persons who worked between May 2006 to August 22, 2006 at Schlumberger Technology Corp. work-sites in New Mexico, Utah, Colorado, and/or Wyoming under H-2B visas that were issued to RigStaff Ltd.

The purpose of this Notice is to inform you of the existence of a lawsuit that may affect your rights and to instruct you on the procedure for participating in this lawsuit, if you do wish to do so.

1. WHAT THE LAWSUIT IS ABOUT

The lawsuit was filed in November 2008 by Wellem March Paulus and Zainal Tampobulon, two Indonesian workers who received H-2B visas to work for RigStaff during 2005-2006. Plaintiffs Paulus and Tampobulon have sued six Defendants: RigStaff Ltd., RigStaff Texas LLC, Douglas White, Joseph P. DeLorenzo, Walter Bliss, and Schlumberger Technology Corporation.

Plaintiffs claim that they and other foreign workers were recruited by RigStaff to come to the United States to work for Schlumberger Technology Corporation using H-2B visas. Plaintiffs allege that the Defendants acted illegally in not paying the H-2B workers overtime wages for the hours that they worked in excess of forty (40) hours per week. Plaintiffs claim that the Defendants owe the H-2B workers overtime premiums for all hours worked in excess of forty (40) hours per week, as well as an equal amount of liquidated damages, court costs, and attorney fees. Defendants deny that they owe Plaintiffs or any other H-2B workers any additional compensation and further deny that they violated any laws with respect to Plaintiffs' compensation.

The Court has not yet decided whether Plaintiffs or Defendants are correct.

2. YOUR RIGHT TO PARTICIPATE IN THE LAWSUIT

Plaintiffs Paulus and Tampobulon have brought this overtime claim on behalf of themselves and all other persons who received H-2B visas and worked for Schlumberger and RigStaff between May 2006 and August 22, 2006. If you received an H-2B visa to work in the United States with Schlumberger and RigStaff, and did in fact come to the United States and worked with Schlumberger and RigStaff in 2006, you may have a right to participate in this lawsuit. If you wish to do so, you should mail or email (by signing and scanning) the attached "Consent to Become Party Plaintiff" form to the attorneys who represent the workers using the following address:

Class Action Assistant

Equal Justice Center

Suite 206

510 South Congress Avenue

Austin, Texas 78704

Telephone: 512-474-0007

Email: ClassAction@equaljusticecenter.org

The form must be mailed or emailed to the above address before August 10, 2009. Under U.S. law, the time period for which you may claim overtime wages is determined by the date when your "Consent to Become Party Plaintiff" form is received. The sooner your form is received the farther back your claim for wages may go. If your claim is not postmarked or emailed by August 10, 2009, you will not be permitted to participate in this lawsuit.

3. EFFECT OF JOINING THIS CASE

If you choose to join in this case you will become a Plaintiff and, therefore, a legal party to this litigation. Accordingly, you may be required to respond to written questions under oath, submit to an oral deposition under oath, and/or testify in court. You will also be bound by any judgment, whether it results in payment of further wages to you or whether it is unfavorable. If the Defendants prevail, under 28 U.S.C. § 1920, you may be required to pay litigation costs incurred by the Defendants.

4. TO STAY OUT OF THE LAWSUIT

If you do not wish to join the lawsuit, you do not need to do anything. If you do not join the lawsuit, you will not be part of the case in any way and you will not be bound by the result (whether favorable or unfavorable). Your decision not to join this case will not affect your right to bring a similar case on your own at a future time. However, the pendency of this action will not stop the running of the statute of limitations as to any claims you may have and you may therefore be time-barred from asserting such claims later.

5. YOUR LEGAL REPRESENTATION IF YOU JOIN

If you choose to join this suit your attorneys in this action will be:^th etudden@io.com bill@equaljusticecenter.org

Jerome Wesevich Edward Tuddenham William H. Beadall, Jr. 228 W. 137 St. Equal Justice Center NY, NY 10030 Transnational Worker Rights Clinic Telephone: 212-281-6660 510 Congress Ave., Suite 206 email: Austin, Texas 78704 Telephone: (512) 474-0007 Fax: (512) 474-0008 Email:

You also have the right to join this lawsuit and be represented by counsel of your own choosing. If you do so, your attorney must file an "opt-in" consent form with the Court within 90 days of the date of this Notice.

6. HOW THE PLAINTIFFS' ATTORNEYS ARE PAID

If you choose to join this action and be represented by the attorneys listed in paragraph 5, you will not have to pay Plaintiffs' attorneys out of your own pocket. If the Plaintiffs are successful in this case, they will ask the Court to order Rigstaff, Schlumberger, and other Defendants to pay the reasonable attorney fees to be awarded by the Court or one-third (1/3) of the total of the attorneys fees and damages recovered for the Plaintiffs, whichever is greater. If the Plaintiffs are not successful, you will owe the attorneys nothing but you may still be liable for costs and fees incurred by the Defendants. If you chose to hire your own attorney, you must make your own financial arrangements with your attorney.

7. DEFENDANTS ARE REPRESENTED BY

Attorneys for Defendants RigStaff, Joseph DeLorenzo, and Walter Bliss soller@littler.com nsud@littler.com Attorneys for Defendant Schlumberger bhb@kullmanlaw.com msh@kullmanlaw.com Attorney for Defendant Douglas White dan@lobo.net

Nitin Sud Shawn Oller Littler Mendelson, P.C. Littler Mendelson, P.C. 1301 McKinney St. 2425 East Camelback Rd. Ste. 1900 Suite 900 Houston, TX 77010 Telephone: 602-474-3608 Telephone: 713-652-4753 Fax: 602-926-8757 Fax: 713-951-9212 : Benjamin Banta Michael S. Hudson The Kullman Firm The Kullman Firm 1100 Poydras St. P.O. Box 827 Suite 1600 200 6th Street North New Orleans, LA 70163 Court Square Towers, Suite 704 Tel: (504) 524-4162 Columbus, MS 39703-0827 Fax: (504) 596-4189 Tel: (662) 244-8824 Fax: (662) 244-8837 : Dan Dolan Dolan Associates, P.C. 5801 OsunaNE Suite 106 Albuquerque, NM 87109 Telephone: 505-883-1266 Fax: 505-888-7509

8. FURTHER INFORMATION

Further information about this Notice, the deadline for filing a Consent to Become Party Plaintiff, or answers to questions concerning this lawsuit may be obtained by writing, telephoning or e-mailing any one of the attorneys using the telephone numbers and addresses stated in Paragraphs 5 and 7 above. However, counsel for both the named Plaintiffs or Defendants are prohibited from contacting or soliciting you by telephone, mail, electronic mail, or any other means unless you have communicated with them first and consented to such communication. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO WELLEM MARCH PAULUS et al. Plaintiffs, Civil Action No. v. 1:08-cv-1104 (BB) RIGSTAFF TEXAS LLC, et al. Defendants

CONSENT TO SUE

I hereby consent to be a plaintiff in the foregoing overtime lawsuit under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. I hereby designate Edward Tuddenham, and his successors and assigns, to represent me in this case. By signing this consent to sue, I understand that, if accepted for representation, I will be represented by the above attorney and by co-counsel of his choice. I understand that in joining this case, I do not have to pay for the legal services out of my own pocket. If the Plaintiffs are successful, Plaintiffs' attorneys will apply to the Court for an award of attorneys fees. I agree that, if the action is successful or settles, the attorneys will receive the awarded attorneys' fees or one-third of the total amount recovered from Defendants, whichever is greater. I understand that if the Plaintiffs are not successful, I may be liable for taxable costs incurred by Defendants in defending this claim. I also understand that by filing this consent, I will be bound by the judgment of the Court on all issues in this case. Please mail the completed form to: ClassAction@equaljusticecenter.org ______________________________ ______________________________ Signature Address ______________________________ ______________________________ Printed Name City, State, Zip Code ______________________________ ______________________________ Date Country ______________________________ ______________________________ E-mail Address Telephone Number Class Action Assistant Equal Justice Center Suite 206 510 South Congress Avenue Austin, Texas 78704 Telephone: 512-474-0007 Email: