IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MIDLAND/ODESSA DIVISION

DEAN KEATING, Individually and on 

behalf of all others Similarly situated,

 Plaintiff,

v. 

FLOWCO PRODUCTION SOLUTIONS, 

LLC,

 Defendant.

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 No. MO:20-CV-00122-DC-RCG

ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION; ORDER

AMENDING DEFINITION OF SIMILARLY SITUATED; AND ORDER LIFTING 

STAY OF THE CASE

BEFORE THE COURT is Defendant FlowCo Production Solutions, LLC’s 

(“Defendant”) Motion for Reconsideration of Order Adopting Definition of Similarly Situated 

Class and Authorizing Distribution of Notice to Potential Opt-In Plaintiffs (hereinafter, “Motion

for Reconsideration”). (Doc. 77). This case is before the undersigned through an Order pursuant 

to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to 

United States Magistrate Judges. (Doc. 5). After due consideration, the Court GRANTS 

Defendant’s Motion for Reconsideration and AMENDS the Order Adopting Definition of 

Similarly Situated Class to reflect the changes made below. (Doc. 68). The Court further 

ORDERS the parties to incorporate such amendments into the already-approved notice 

documents. (Doc. 78). Finally, the Court ORDERS that the Order Staying Issuance of Notice 

Documents be lifted. (Doc. 79). 

I. BACKGROUND

On May 18, 2020, Plaintiff Dean Keating (“Plaintiff”) filed his Original Complaint 

against Defendant. (Doc. 1). Plaintiff and Opt-In Plaintiffs (collectively, “Plaintiffs”) bring a 

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collective action for unpaid overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. 

§ 201, et seq. (“FLSA”) and the New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-19, et 

seq.. Id. at 1. 

Plaintiffs filed their Motion to Certify Class and Motion for Approval and Distribution of 

Notice and for Disclosure of Contact Information on July 10, 2020. (Docs. 18, 19). While 

Plaintiffs’ Motion for Conditional Certification and Notice was pending before the Court, the 

Fifth Circuit’s decision in Swales v. KLLM Transp. Servs. rejected the Lusardi two-step 

approach, upon which both Plaintiffs’ Motions and Defendant’s Responses were premised. 985 

F.3d 430, 441 (5th Cir. 2021); (Docs. 18–21). As a result of the Fifth Circuit’s directive in 

Swales, the Court found it necessary to deny Plaintiffs’ Motion for Conditional Certification and 

Notice without prejudice, allowing Plaintiffs to refile their motion at the appropriate time. (Doc. 

32). Pursuant to the Fifth Circuit’s mandate in Swales, the Court held a hearing in the instant 

case on February 8, 2021, regarding “what facts and legal considerations” are material to 

determining whether Plaintiff and the proposed class are “similarly situated” as well as the 

“amount of discovery necessary to make that determination.” (Doc. 33) (quoting Swales, 985 

F.3d 430, 441 (5th Cir. 2021)). 

On October 21, 2021, following the completed briefing of the issue, the Court entered an 

Order Adopting Definition of Similarly Situated Class and Authorizing Distribution of Notice to 

Potential Opt-In Plaintiffs, defining the class as:

All Gas Lift Technicians a/k/a Sales and Service 

Representatives employed by Defendant in the three years 

prior to July 10, 2020.

(Doc. 68). Plaintiffs then filed their Opposed Motion to Approve Notice Documents on 

November 2, 2021 (Doc. 73) and Defendant filed objections the same day (Doc. 74). The Court 

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then overruled Defendant’s objections and granted Plaintiffs’ Motion to Approve Notice 

Documents. (Doc. 78). On November 9, 2021, Defendant filed the instant Motion for 

Reconsideration. (Doc. 77). Due to arguments raised in Defendant’s Motion for Reconsideration, 

the Court issued an Order Staying Issuance of Notice Documents (Doc. 79) until the Motion for 

Reconsideration was addressed. Plaintiffs timely filed their Response wherein they oppose 

Defendant’s Motion for Reconsideration. (Doc. 82). Accordingly, this matter is ready for 

disposition. 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 54(b) allows the Court to revise or amend “any order . . . 

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . 

. . at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights 

and liabilities.” Furthermore, the Fifth Circuit has stated that a “trial court is free to reconsider 

and reverse its decision for any reason it deems sufficient, even in the absence of new evidence 

or an intervening change in or clarification of the substantive law.” Austin v. Kroger Tex., L.P., 

864 F.3d 326 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 

167, 185 (5th Cir. 1990)). 

III. DISCUSSION

Defendant’s Motion for Reconsideration requests that the Court “reconsider its Order 

defining the class as those whom Defendant employed during the three (3) years prior to July 10, 

2020—the date that Plaintiff filed his original motions for class certification and distribution of 

notice . . . rather than the date the Court authorizes distribution of notice, October 21, 2021.” 

(Doc. 77 at 1). Defendant argues, correctly, that “[i]t is well-settled in the Fifth Circuit that 

notice periods are measured from the date that the court approves or authorizes notice to 

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potential opt-in plaintiffs” and that the Fifth Circuit’s decision in Swales v. KLLM Transp. Servs.

did not alter such practice. 985 F.3d 430 (5th Cir. 2021). (Doc. 77 at 3). 

The Fifth Circuit has established that the proper measure for notice periods in FLSA 

cases is from the date that the court approves or authorizes notice. See, e.g., Snively v. Peak 

Pressure Control, LLC, 174 F. Supp. 3d 953, 963 (W.D. Tex. 2016) (“[T]he three-year 

limitations period under the FLSA should be measured from the date notice is issued, rather than 

the date Plaintiff’s Complaint was filed.”); Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D.

510, 516 (W.D. Tex. 2015) (“Defendants argue the three-year limitations period under the FLSA 

should be measured from the date notice is issued, rather than the date Plaintiff’s complaint was 

filed. In the reply, Plaintiff concedes this is the proper date.”); Tolentino v. C & J Spec-Rent 

Servs., Inc., 716 F. Supp. 2d 642, 654 (S.D. Tex. 2010) (“Thus, the notice period must 

commence three years prior to the Court’s approval of this notice.”). 

In response, Plaintiffs cite T.S. by & through P.O. v. Burke Found., an FLSA case where 

the court rejected the defendant’s argument that plaintiffs’ use of the date that the original 

complaint was filed to measure the notice period improperly extended the statute of limitations. 

521 F. Supp. 3d 691, 699 (W.D. Tex. 2021). While the Burke Court exercised its discretion by 

approving the plaintiffs’ proposed notice, the plaintiffs in that case also explicitly requested that 

the court equitably toll the statute of limitations. Id. at 700. Here, Plaintiffs did not, nor do they 

claim to have explicitly requested that the Court equitably toll the statute of limitations as in 

Burke. To the contrary, Plaintiffs seem to suggest that, by requesting notice be distributed to 

“[a]ll Gas Lift Technicians a/k/a Sales and Service Representatives employed by Defendant in 

the three (3) years prior to July 10, 2020” (Doc. 55 at 1), they implicitly requested equitable 

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tolling. (Doc. 82). The Court will not automatically read such requests from between the lines of 

a party’s motion and will not construe such as a motion for equitable tolling. 

IV. CONCLUSION

Because Plaintiffs did not request that the Court equitably toll the statute of limitations in 

this case, and in accordance with Fifth Circuit precedent, the Court GRANTS Defendant’s 

Motion for Reconsideration and AMENDS the Definition of Similarly Situated to:

All Gas Lift Technicians a/k/a Sales and Service 

Representatives employed by Defendant in the three years 

prior to October 21, 2021.

(Doc. 68). The Court further ORDERS the parties to incorporate the above-mentioned 

amendment into the already-approved notice documents. (Doc. 78). Finally, given the resolution 

of Defendant’s Motion for Reconsideration, the Court ORDERS that the Order Staying Issuance 

of Notice Documents be lifted. (Doc. 79). 

It is so ORDERED.

SIGNED this 17th day of November, 2021.

RONALD C. GRIFFIN

UNITED STATES MAGISTRATE JUDGE

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