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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DARRELL NEWTON, Individually and on PLAINTIFF

Behalf of All Others Similarly Situated

vs. No. 5:20-cv-542

CALIBER HOLDINGS CORPORATION DEFENDANT

ORIGINAL COMPLAINT—COLLECTIVE ACTION

COME NOW Plaintiff Darrell Newton (“Plaintiff”), individually and on behalf of all 

others similarly situated, by and through his attorneys Merideth Q. McEntire and Josh 

Sanford of Sanford Law Firm, PLLC, and for his Original Complaint—Collective Action 

against Defendant Caliber Holdings Corporation, he does hereby state and allege as 

follows:

I. INTRODUCTION

1. Plaintiff, individually and on behalf of all other similarly situated employees 

of Defendant, brings this action under the Fair Labor Standards Act, 29 U.S.C. § 201, et 

seq. (“FLSA”) for declaratory judgment, monetary damages, liquidated damages, 

prejudgment interest, and costs, including a reasonable attorney’s fee, as a result of 

Defendant’s failure to pay Plaintiff and all others similarly situated an overtime premium

as required by the FLSA.

2. Upon information and belief, for at least three (3) years prior to the filing of 

this Complaint, Defendant has willfully and intentionally committed violations of the FLSA 

as described, infra.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

II. JURISDICTION AND VENUE

3. The United States District Court for the Western District of Texas has subject 

matter jurisdiction over this suit under the provisions of 28 U.S.C. § 1331 because this 

suit raises federal questions under the FLSA.

4. Defendant conducts business in this District and a substantial part of the 

events alleged herein occurred in this District.

5. Venue lies properly within this Court under 28 U.S.C. § 1391(b)(1) and 

(c)(2), because the State of Texas has personal jurisdiction over Defendant, and 

Defendant therefore “resides” in Texas. 

6. On information and belief, the payroll records and other documents related 

to the payroll practices that Plaintiff challenges are located in this District.

III. THE PARTIES

7. Plaintiff is a citizen and resident of Bexar County.

8. Caliber Holdings Corporation is a for-profit, domestic corporation.

9. Defendant’s registered agent for service is C T Corporation System at 1999 

Bryan Street, Suite 900, Dallas, Texas 75201.

10. Defendant also does business as Caliber Collision Centers and Caliber 

Auto Glass. 

11. Defendant has a website located at https://calibercollision.com/.

IV. FACTUAL ALLEGATIONS

12. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

13. Defendant operates a collision repair company with locations across the 

United States including numerous locations in Texas.

14. Defendant’s annual gross volume of sales made or business done was not 

less than $500,000.00 (exclusive of excise taxes at the retail level that are separately 

stated) during each of the three calendar years preceding the filing of this Complaint.

15. During each of the three years preceding the filing of this Complaint, 

Defendant employed at least two individuals who were engaged in interstate commerce 

or in the production of goods for interstate commerce, or had employees handling, selling, 

or otherwise working on goods or materials that had been moved in or produced for 

commerce by any person, such as equipment, tools and automobiles.

16. Defendant was Plaintiff’s employer and the employer of the proposed 

collective within the meaning of the FLSA, 29 U.S.C. § 203(d) at all times relevant to this 

lawsuit.

17. Plaintiff was employed by Defendant at Defendant’s collision repair

company during the time period relevant to this lawsuit.

18. Plaintiff worked for Defendant during the three years preceding the filing of 

this Complaint.

19. At all times material hereto, Plaintiff has been entitled to the rights, 

protection and benefits provided under the FLSA.

20. Plaintiff was employed by Defendant as a technician from May of 2017 until 

August of 2019 and again from November of 2019 until April of 2020.

21. Plaintiff and other technicians worked as hourly, non-exempt employees at 

Caliber Holdings.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

22. Defendant paid Plaintiff and other technicians an hourly rate for the 

estimated labor hours required for each job.

23. Defendant did not pay Plaintiff and other technicians based on their actual 

hours worked.

24. Plaintiff and other technicians regularly worked in excess of forty (40) hours 

per week.

25. Defendant paid Plaintiff and other technicians their regular hourly rate for all 

estimated labor hours, including hours worked in excess of forty (40) per week.

26. Defendant did not pay Plaintiff and other technicians an overtime premium 

of one and one half (1.5) times their regular hourly rate for all hours worked in excess of 

forty (40) per week. 

27. Defendant knew, or showed reckless disregard for whether, the way it paid 

Plaintiff and other technicians violated the FLSA.

V. REPRESENTATIVE ACTION ALLEGATIONS

28. Plaintiff repeats and re-alleges all previous paragraphs of this Complaint as 

though fully set forth herein.

29. At all relevant times, Plaintiff and all other similarly situated technicians have 

been entitled to the rights, protections and benefits provided by the FLSA.

30. Plaintiff brings his claims for relief for violation of the FLSA as a collective 

action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b).

31. Plaintiff brings his FLSA claim on behalf of all hourly-paid technicians who 

were employed by Defendant at any time within the applicable statute of limitations 

period, who are entitled to payment of the following types of damages:

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

A. An overtime premium for all hours worked in excess forty (40) in a week; 

B. Liquidated damages; and

C. Attorneys’ fees and costs.

32. In conformity with the requirements of FLSA Section 16(b), Plaintiff has filed 

or will soon file his written Consent to Join this lawsuit.

33. The relevant time period dates back three years from the date on which 

Plaintiff’s Original Complaint—Collective Action was filed herein and continues forward 

through the date of judgment pursuant to 29 U.S.C. § 255(a).

34. The members of the proposed FLSA Collective are similarly situated in that 

they share these traits:

A. They were classified as non-exempt from the overtime requirements of the 

FSLA and paid an hourly rate;

B. They were subject to Defendant’s common policy of failing to pay an 

overtime premium for hours worked in excess of forty (40) per week;

C. They had the same or substantially similar job duties; and

D. They recorded their time the same way.

35. Plaintiff is unable to state the exact number of the potential members of the 

FLSA Collective but believe that the group exceeds twenty (20) persons.

36. Defendant can readily identify the members of the Section 16(b) Collective. 

The names and physical addresses, email addresses and phone numbers of the FLSA 

collective action plaintiffs are available from Defendant, and a Court-approved Notice 

should be provided to the FLSA collective action plaintiffs via first class mail, email and 

text message to their last known physical and electronic mailing addresses and cell phone 

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

numbers as soon as possible, together with other documents and information descriptive 

of Plaintiff’s FLSA claim.

37. At all relevant times, Defendant directly hired members of the FLSA

Collective to work as technicians, paid them wages, controlled their work schedules, 

duties, protocols, applications, assignments and employment conditions, and kept at least 

some records regarding their employment.

38. At all relevant times, each member of the FLSA Collective regularly 

engaged in interstate commerce or handled, sold, or otherwise worked with goods or 

materials that had been moved in or produced for interstate commerce.

VI. FIRST CLAIM FOR RELIEF

(Collective Action Claim for Violation of the FLSA)

39. Plaintiff repeats and re-alleges all previous paragraphs of this Complaint as 

though fully set forth herein.

40. This is a collective action filed on behalf of all hourly-paid technicians

employed by Defendant to recover monetary damages owed by Defendant to Plaintiff and 

members of the putative collective for unpaid overtime wages because they were not paid 

a rate of one and one half (1.5) times their regular rate for hours worked in excess of forty 

(40) per week.

41. Plaintiff brings this action on behalf of himself and all other similarly situated 

employees, former and present, who were and/or are affected by Defendant’s willful and 

intentional violation of the FLSA.

42. 29 U.S.C. § 207 requires employers to pay employees one and one-half 

(1.5) times the employee’s regular rate for all hours that the employee works in excess of 

forty (40) per week. 29 U.S.C.S. § 207.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

43. At all relevant times, Plaintiff and all similarly situated employees have been 

entitled to the rights, protection, and benefits provided by the FLSA.

44. At all relevant times, Plaintiff and all similarly situated employees have been 

“employees” of Defendant, as defined by 29 U.S.C. § 203(e).

45. At all relevant times, Defendant was an “employer” of Plaintiff and all other 

similarly situated employees, as defined by 29 U.S.C. § 203(d).

46. Defendant failed to pay Plaintiff and all similarly situated employees an 

overtime premium for hours worked in excess of forty (40) per week.

47. Because these employees are similarly situated to Plaintiff, and are owed 

compensation for the same reasons, the proposed collective is properly defined as 

follows: 

All hourly technicians who worked more than forty 

hours in any week within the past three years.

48. At all relevant times, Defendant willfully failed and refused to pay Plaintiff

and all other similarly situated employees a proper overtime premium under the FLSA 

because Defendant paid Plaintiff and other similarly situated employees their regular 

hourly rate for all hours worked over forty (40) in a week.

49. Defendant’s violations entitle Plaintiff and all other similarly situated 

employees to compensatory damages calculated as the full amount of overtime wages 

owed.

50. Defendant’s violations entitle Plaintiff and all other similarly situated 

employees to liquidated damages pursuant to 29 U.S.C. § 216(b) of an amount equal to 

compensatory damages.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

51. Plaintiff and all other similarly situated employees are entitled to an award 

of their attorney’s fees and court costs pursuant to 29 U.S.C. § 216(b). 

VII. SECOND CLAIM FOR RELIEF

(Individual Claims for Violation of the FLSA)

52. Plaintiff repeats and re-alleges all previous paragraphs of this Complaint as 

though fully set forth herein.

53. 29 U.S.C. § 207 requires employers to pay employees one and one-half 

(1.5) times the employee’s regular rate for all hours that the employee works in excess of 

forty (40) per week. 29 U.S.C.S. § 207.

54. At all relevant times, Plaintiff has been entitled to the rights, protection, and 

benefits provided by the FLSA.

55. At all relevant times, Plaintiff has been an “employee” of Defendant as 

defined by 29 U.S.C. § 203(e).

56. At all relevant times, Defendant was an “employer” of Plaintiff as defined by 

29 U.S.C. § 203(d).

57. Defendant failed to pay Plaintiff an overtime premium as required under the 

FLSA.

58. At all relevant times, Defendant willfully failed and refused to pay Plaintiff a 

proper overtime premium under the FLSA because Defendant paid Plaintiff his regular 

hourly rate for all hours worked over forty (40) in a week.

59. Defendant’s violations entitle Plaintiff to compensatory damages calculated 

as the full amount of overtime wages owed.

60. Defendant’s violations entitle Plaintiff to liquidated damages pursuant to 29 

U.S.C. § 216(b) of an amount equal to compensatory damages.

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

61. Plaintiff is entitled to an award of his attorney’s fees and court costs 

pursuant to 29 U.S.C. § 216(b).

VIII. PRAYER FOR RELIEF

WHEREFORE, premises considered, Plaintiff Darrell Newton, individually and on 

behalf of all others similarly situated, respectfully requests this Court grant the following 

relief:

A. That Defendant be summoned to appear and answer herein;

B. That Defendant be required to account to Plaintiff, the collective members 

and the Court for all of the hours worked by Plaintiff and the collective members and all 

monies paid to them;

C. A declaratory judgment that Defendant’s practices alleged herein violate the 

Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and attendant regulations at 29 C.F.R. 

§ 516, et seq.;

D. Certification of, and proper notice to, together with an opportunity to 

participate in the litigation, all qualifying current and former employees;

E. Judgment for damages for all unpaid back wages at the proper overtime 

rate owed to Plaintiff and members of the collective from a period of three (3) years prior 

to this lawsuit through the date of trial under the Fair Labor Standards Act, 29 U.S.C. §

201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

F. Judgment for liquidated damages pursuant to the Fair Labor Standards Act, 

29 US.C. § 201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

G. An order directing Defendant to pay Plaintiff and members of the collective 

pre-judgment interest, reasonable attorney’s fees and all costs connected with this action; 

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Darrell Newton, et al. v. Caliber Holdings Corporation

U.S.D.C. (W.D. Tex.) Case No. 5:20-cv-542

Original Complaint—Collective Action

and

H. Such other and further relief as this Court may deem necessary, just and 

proper.

Respectfully submitted,

DARRELL NEWTON, Individually 

and on Behalf of All Others 

Similarly Situated, PLAINTIFF

SANFORD LAW FIRM, PLLC

One Financial Center

650 South Shackleford, Suite 411

Little Rock, Arkansas 72211

Telephone: (501) 221-0088

Facsimile: (888) 787-2040

/s/ Merideth Q. McEntire

Merideth Q. McEntire

Tex. Bar No. 24105123

merideth@sanfordlawfirm.com

/s/ Josh Sanford

Josh Sanford

Tex. Bar No. 24077858

josh@sanfordlawfirm.com

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