UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

MIDLAND DIVISION 

SAMUEL CUNNINGHAM, 

Plaintiff, 

v. 

CIRCLE 8 CRANE SERVICES, LLC; 

BRYAN ERICSON; and PHILLIP L. 

BRYSON 

Defendants. 

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No. ___________________

PLAINTIFF’S ORIGINAL COMPLAINT 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW Plaintiff Samuel Cunningham (referred to as “Plaintiff” or 

“Cunningham”) brings this action under 29 U.S.C. §216(b) and 29 U.S.C. § 211(a)(3) against 

Defendants Circle 8 Crane Services, LLC (“Circle 8”), Bryan Ericson (“Ericson”) and Phillip 

L. Bryson (“Bryson”) (referred to as “Defendants”). In support thereof, he would respectfully

show the Court as follows: 

I. Nature of Suit

1. Cunningham’s claims arise under the Fair Labor Standards Act of 1938, 29

U.S.C. §§ 201-219 (“FLSA”). 

2. The FLSA was enacted to eliminate “labor conditions detrimental to the

maintenance of the minimum standard of living necessary for health, efficiency and general 

well-being of workers.” 29 U.S.C. § 202(a). To achieve its humanitarian goals, the FLSA 

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defines appropriate pay deductions and sets overtime pay, minimum wage, and recordkeeping 

requirements for covered employers. 29 U.S.C. §§ 206(a), 207(a), 211(c). 

3. Defendants violated the FLSA by employing Cunningham “for a workweek 

longer than forty hours [but refusing to compensate them] for [their] employment in excess 

of [forty] hours ... at a rate not less than one and one-half times the regular rate at which [they 

are or were] employed.” 29 U.S.C. § 207(a)(1). 

4. Defendants violated the FLSA by failing to maintain accurate time and pay 

records for Cunningham as required by 29 U.S.C. § 211(c) and 29 C.F.R. pt. 516. 

5. Additionally, Defendants violated the FLSA by retaliating against Cunningham 

after he complained about not being paid properly. 29 U.S.C. § 215(a)(3). 

II. Jurisdiction & Venue 

6. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 29 

U.S.C. § 216(b) because it arises under the FLSA, a federal statute. 

7. Venue is proper in this district and division pursuant to 28 U.S.C. §§ 

1391(b)(1), (2) because Defendants reside in the Midland Division of the Western District of 

Texas and/or a substantial part of the events or omissions giving rise to Cunningham’s claims 

occurred in the Midland Division of the Western District of Texas. 

 

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III. Parties 

8. Plaintiff Samuel Cunningham is an individual who resides in Upshur County, 

Texas and who was employed by Defendants during the last three years. 

9. Defendant Circle 8 Crane Services, LLC is a foreign limited liability company 

that may be served with process by serving its registered agent: 

Phillip L. Bryson 

3174 County Rd. 48 

Robstown, Texas 78380 

Alternatively, if the registered agent of Circle 8 Crane Services, LLC cannot with reasonable 

diligence be found at the company’s registered office, Circle 8 Crane Services, LLC may be 

served with process by serving the Texas Secretary of State pursuant to Tex. Bus. Org. Code 

§ 5.251 and Tex. Civ. Prac. & Rem. Code § 17.026. 

10. Defendant Bryan Ericson is an individual and may be served with process at: 

Bryan Ericson 

3174 County Rd. 48 

Robstown, Texas 78380 

Alternatively, Bryan Ericson may be served with process pursuant to the TEX. CIV. PRAC. &

REM. CODE § 17.021 by serving an agent or clerk employed at his office or place of business 

because this action grows out of or is connected with the business, he transactions in this state. 

11. Defendant and Phillip L. Bryson is an individual and may be served with 

process at: 

Phillip L. Bryson 

3174 County Rd. 48 

Robstown, Texas 78380 

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Alternatively, Bryan L. Ericson may be served with process pursuant to the TEX. CIV. PRAC.

& REM. CODE § 17.021 by serving an agent or clerk employed at his office or place of business 

because this action grows out of or is connected with the business, he transactions in this state. 

12. Whenever it is alleged that Circle 8 Crane Services, LLC committed any act or 

omission, it is meant that the company’s officers, directors, vice-principals, agents, servants or 

employees committed such act or omission and that, at the time such act or omission was 

committed, it was done with the full authorization, ratification or approval of Circle 8 Crane 

Services, LLC or was done in the routine and normal course and scope of employment of the 

company’s officers, directors, vice-principals, agents, servants or employees. 

IV. Facts 

13. Circle 8 provides mobile cranes and operators for hire; it does business in the 

territorial jurisdiction of this Court. 

14. Circle 8 employed Cunningham as a crane mechanic from approximately 2017 

through March 2020. 

15. Cunningham’s primary duties were nonexempt. 

16. As a crane mechanic, Cunningham was primarily responsible for maintaining 

and repairing cranes. 

17. Cunningham’s primary duties did not include office or nonmanual work. 

18. Cunningham’s primary duties were not directly related to the management or 

general business operations of Circle 8 or its customers. 

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19. Cunningham’s duties did not differ substantially from the duties of traditionally 

nonexempt hourly workers. 

20. Cunningham did not exercise a meaningful degree of independent discretion 

with respect to the exercise of his duties. 

21. Cunningham did not have the discretion or authority to make any decisions 

with respect to matters of significance. 

22. Instead, Cunningham was required to follow the policies, practices and 

procedures set by Circle 8. 

23. Cunningham did not have any independent authority to deviate from these 

policies, practices and procedures. 

24. During Cunningham’s employment with Circle 8, he was engaged in commerce 

or the production of goods for commerce. 

25. During Cunningham’s employment with Circle 8, the company had employees 

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

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

commerce by others. 

26. During Cunningham’s employment with Circle 8, the company had an annual 

gross volume of sales made or business done of at least $500,000. 

27. In around 2018, Circle began paying Cunningham on a salary basis for sixty 

hours of work each week. 

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28. During Cunningham’s employment with Circle 8, he regularly worked in excess 

of forty hour per week; in fact, Cunningham was often scheduled to work at least seventy (or 

more) hours per week. 

29. Circle 8 knew or reasonably should have known that Cunningham worked in 

excess of forty hours per week. 

30. Circle did not pay Cunningham overtime “at a rate not less than one and onehalf times the regular rate at which [he was] employed.” 29 U.S.C. § 207(a)(1). 

31. Instead, Circle 8 paid Cunningham a fixed sum of money for sixty hours of work 

each week. 

32. Additionally, Cunningham was not paid anything for hours worked beyond 

sixty each workweek violation of 29 CFR § 778.325. 

33. In other words, Circle 8 paid Cunningham for the overtime that he worked at a 

rate less than one and one-half times the regular rate at which he was in employed in violation 

of the FLSA. 

34. Circle 8 knew or reasonably should have known that Cunningham was not 

exempt from the overtime provisions of the FLSA. 

35. Circle 8 failed to maintain accurate time and pay records for Cunningham as 

required by 29 U.S.C. § 211(c) and 29 C.F.R. pt. 516. 

36. Circle 8 knew or showed a reckless disregard for whether its pay practices 

violated the FLSA. 

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37. Beginning in early March of 2020, Cunningham confronted his supervisor 

Larry Worrell and Circle 8’s President, Bryan Ericson, about not getting paid overtime and 

having to work for free. 

38. In retaliation, Circle 8 cut off his fuel card and credit card and offered him a 

reduction in pay. 

39. Knowing that his days were numbered with Circle 8 as a result of his complaints, 

Cunningham tendered his two-week notice of resignation on March 27, 2020. 

40. Mr. Worrell immediately threatened to sue Cunningham for (allegedly) 

violating his non-compete agreement if resigned. 

41. When Mr. Cunningham refused to rescind his two-week resignation, Circle 8 

terminated him. 

42. Circle 8 made good on its threat to sue Cunningham. On April 27, 2020, in the 

midst of a worldwide pandemic and historic unemployment rates, Circle 8 filed suit against 

Cunningham for alleged violation of his non-compete of agreement, including a request for 

temporary restraining order, in the matter styled, No. 2020-26023; Circle 8 Crane Services, 

LLC v. Samuel Cunningham; In the District Court of Harris County Texas, 189th Judicial 

District. 

43. On April 28, 2020, after arguments from counsel for both Circle 8 and 

Cunningham, Harris County District Judge Steven Kirkland denied Circle 8’s request for a 

temporary restraining order in all respects. 

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44. The very next day in an attempt to get a second bite at the apple, Circle 8 

dismissed its lawsuit pending in the District Court of Harris County Texas and refiled the 

same lawsuit, including a request for a temporary restraining order in the Midland County 

District Court. 

45. All of Circle 8’s actions, including the forum shopping, following Cunningham’s 

complaints regarding his unpaid overtime all amount to retaliation. 

46. Circle 8 is liable to Cunningham for his unpaid overtime wages, lost wages, 

liquidated damages and attorney’s fees and costs pursuant to 29 U.S.C. § 216(b). 

V. Count One— 

Failure to Pay Overtime in Violation of 29 U.S.C. § 207(a) 

47. Cunningham adopts by reference all of the facts set forth above. See, Fed. R. 

Civ. P. 10(c). 

48. During Cunningham’s employment with Circle 8, he was a nonexempt 

employee. 

49. As a nonexempt employee, Circle 8 was legally obligated to pay Cunningham 

“at a rate not less than one and one-half times the regular rate at which [he was] employed[]” 

for the hours that he worked over forty in a workweek. 29 U.S.C. § 207(a)(1). 

50. Circle 8 did not pay Cunningham overtime as required by 29 U.S.C. § 207(a)(1) 

for the hours he worked in excess of forty per week. 

51. Instead, Circle 8 paid Cunningham a fixed sum of money for sixty hours of work 

each week. 

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52. Further, Cunningham was not paid anything for hours that he worked beyond 

sixty each workweek violation of 29 CFR § 778.325. 

53. In other words, Circle 8 paid Cunningham for the overtime that he worked at a 

rate less than one and one-half times the regular rate at which he was in employed in violation 

of the FLSA. 

54. If Circle 8 classified Cunningham as exempt from the overtime requirements of 

the FLSA, he was misclassified because no exemption excuses the company’s noncompliance 

with the overtime requirements of the FLSA. 

55. Circle 8 knew or showed a reckless disregard for whether its pay practices 

violated the overtime requirements of the FLSA; in other words, Circle 8 willfully violated 

the overtime requirements of the FLSA. 

VI. Count Two— 

FLSA Retaliation in Violation of 29 U.S.C. § 211(a)(3) 

56. Cunningham adopts by reference all of the facts set forth above. See, Fed. R. 

Civ. P. 10(c). 

57. The FLSA prohibits any person from discharging or in any other manner 

discriminating against any employee because such employee has filed any complaint or 

instituted or caused to be instituted any proceeding under or related to the FLSA. 29 U.S.C. 

§ 215(a)(3). 

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58. In addition to the pay violations described above, Circle 8 violated the FLSA 

by retaliating against Cunningham after he complained about his unpaid overtime and having 

to work for free. 

59. Beginning in early March of 2020, Cunningham confronted his supervisor 

Larry Worrell and Circle 8’s President, Bryan Ericson, about not getting paid overtime and 

having to work for free. 

60. In retaliation, Circle 8 cut off his fuel card and credit card and offered him a 

reduction in pay. 

61. Knowing that his days were numbered with Circle 8 as a result of his complaints, 

Cunningham tendered his two-week notice of resignation on March 27, 2020. 

62. Mr. Worrell immediately threatened to sue Cunningham for (allegedly) 

violating his non-compete agreement if resigned. 

63. When Mr. Cunningham refused to rescind his two-week resignation, Circle 8 

terminated him. 

64. Circle 8 made good on its threat to sue Cunningham. On April 27, 2020, in the 

midst of a worldwide pandemic and historic unemployment rates, Circle 8 filed suit against 

Cunningham for alleged violation of his non-compete of agreement, including a request for 

temporary restraining order, in the matter styled, No. 2020-26023; Circle 8 Crane Services, 

LLC v. Samuel Cunningham; In the District Court of Harris County Texas, 189th Judicial 

District. 

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65. On April 28, 2020, after arguments from counsel for both Circle 8 and 

Cunningham, Harris County District Judge Steven Kirkland denied Circle 8’s request for a 

temporary restraining order in all respects. 

66. The very next day in an attempt to get a second bite at the apple, Circle 8 

dismissed its lawsuit pending in the District Court of Harris County Texas and refiled the 

same lawsuit, including a request for a temporary restraining order in the Midland County 

District Court. 

67. All of Circle 8’s actions, including the forum shopping, following Cunningham’s 

complaints regarding his unpaid overtime all amount to retaliation. 

68. As a result, Circle 8 is liable to Cunningham “for such legal or equitable relief 

as may be appropriate to effectuate the purposes of [the anti-retaliation provisions of the 

FLSA], including without limitation employment, reinstatement, promotion, and the payment 

of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). 

VII. Prayer 

69. Cunningham prays for the following relief: 

a. judgment awarding Cunningham all unpaid overtime compensation, 

liquidated damages, attorneys’ fees and costs; 

b. judgment awarding Cunningham all lost wages, liquidated damages, 

reinstatement, attorneys’ fees and costs; 

c. postjudgment interest at the applicable rate; and 

d. all such other and further relief to which Cunningham may show herself 

to be justly entitled. 

 

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Respectfully submitted, 

MOORE & ASSOCIATES

By: 

Melissa Moore 

State Bar No. 24013189 

Curt Hesse 

State Bar No. 24065414 

Lyric Center 

440 Louisiana Street, Suite 675 

Houston, Texas 77002 

Telephone: (713) 222-6775 

Facsimile: (713) 222-6739 

ATTORNEYS FOR PLAINTIFF 

SAMUEL CUNNINGHAM

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