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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS 

MIDLAND DIVISION 

JORDAN SMITH, Individually and 

On Behalf of All Others Similarly 

Situated, 

Plaintiffs, 

v. 

RETURN DISPOSAL, LLC & 

TOBEN SCOTT 

Defendants. 

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§ 

No. _________________ 

PLAINTIFF JORDAN SMITH’S ORIGINAL COMPLAINT 

Plaintiff Jordan Smith (referred to as “Smith”) brings this action under 29 

U.S.C. § 216(b) individually and on behalf of all current and former employees of 

Defendants Return Disposal, LLC and Toben Scott (collectively referred to as 

“Defendants” or “Return Disposal”) who worked as pumpers or attendants and were 

paid at the same rate of pay for all of the hours they worked during the past three years 

to recover back wages, liquidated damages, attorney’s fees and costs under the Fair 

Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (“FLSA”). 

I. Nature of Suit

1. Smith’s claims arise under the FLSA.

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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). 

3. To achieve its humanitarian goals, the FLSA 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). 

4. Defendants violated the FLSA by employing Smith and other similarly 

situated employees “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 were or are] employed.” 29 U.S.C. § 

207(a)(1). 

5. Defendants willfully violated the FLSA because it knew or showed a 

reckless disregard for whether its pay practices were unlawful. 

6. Smith brings this action under 29 U.S.C. § 216(b) individually and on 

behalf of all current and former employees of Defendants who were paid at the same 

rate of pay for all of the hours they worked during the past three years. 

II. Jurisdiction & Venue 

7. This action arises under a federal statute, the FLSA. 28 U.S.C. § 1331 

(federal-question jurisdiction). 

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8. Venue is proper in this district and division because Defendants reside in 

this district and division. 28 U.S.C. § 1391(b)(1). 

III. Parties 

9. Smith is an individual who resides in Midland County, Texas and who 

was employed by Defendants during the Smith three years. 

10. Return Disposal, LLC is a Texas limited liability company that may be 

served with process by serving its registered agent: 

Toben Scott 

1509 W. Wall #100 

Midland, Texas 75201 

Alternatively, if the registered agent of Return Disposal, LLC cannot with reasonable 

diligence be found at the company’s registered office, Return Disposal, LLC may be 

served with process by serving the Texas Secretary of State. See, TEX. BUS. ORG.CODE

§§ 5.251-5.254; see also, TEX. CIV. PRAC. & REM. CODE § 17.026. 

11. Defendant Toben Scott is an individual that may be served with process 

at: 

Toben Scott 

1509 W. Wall #100 

Midland, Texas 75201 

Alternatively, Toben Scott 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 

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business because this action grows out of or is connected with the business he transacts 

in this state. 

12. An allegation that Defendants committed any act or omission should be 

construed to mean 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 

Defendants or was done in the normal course and scope of employment of Defendants’ 

officers, directors, vice-principals, agents, servants or employees. 

IV. Facts 

13. Defendants are an oil field services company that disposes of oilfield 

waste. 

14. Defendants do business in the territorial jurisdiction of this Court. 

15. Defendants employed Smith from approximately March 2019 to May 

2020. 

16. Defendants employed Smith as a pumper and later as an attendant. 

17. As a pumper, Smith was responsible for pump maintenance, checking tank 

levels and other manual labor duties. 

18. As an attendant, Smith was responsible for checking tank levels and other 

manual labor duties. 

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19. Defendants are covered by the FLSA. 29 U.S.C. §§ 203(c), (e)(2), (x), 

206(a), 207(a). 

20. During Smith’s employment with Defendants, he was engaged in 

commerce or in the productions of goods for commerce. 

21. During Smith’s employment with Defendants, the company had 

employees engaged in commerce or in the production of goods for commerce. 

22. During Smith’s employment with Defendants, the company had 

employees handling, selling or otherwise working on goods or materials that had been 

moved in or produced for commerce by others. 

23. During Smith’s employment with Defendants, the company had an annual 

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

24. Defendants paid Smith on salary basis. 

25. Defendants paid Smith on a biweekly basis by electronic deposit. 

26. During Smith’s employment with Defendants, he regularly worked in 

excess of forty hours per week. 

27. Defendants knew or should have known that Smith worked in excess of 

forty hours per week. 

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28. Defendants did not pay Smith for the hours he worked in excess of forty 

per week “at a rate not less than one and one-half times the regular rate at which he 

[was] employed.” 29 U.S.C. § 207(a)(1). 

29. Instead, Defendants paid Smith a fixed sum—a salary—regardless of the 

number of hours he worked. 

30. Smith was not exempt from the maximum hour requirements of the 

FLSA. 

31. As a pumper, Smith’s primary duties were nonexempt. 

32. As an attendant, Smith’s primary duties were nonexempt. 

33. As a pumper and an attendant, Smith’s primary duties did not include 

office or nonmanual work. 

34. As a pumper and attendant, Smith’s primary duties were not directly 

related to the management or general business operations of Defendants’ or its 

customers. 

35. As a pumper and attendant, Smith’s primary duties did not differ 

substantially from the duties of traditionally nonexempt hourly workers. 

36. As a pumper and attendant, Smith did not, in performing his primary 

duties, regularly exercise discretion and independent judgment with respect to matters 

of significance. 

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37. As a pumper and attendant, Smith was, instead, required to follow 

Defendants’ policies, practices and procedures. 

38. As a pumper and attendant, Smith did not have any independent authority 

to deviate from Defendants’ policies, practices and procedures. 

39. Defendants knew or should have known that Smith was not exempt from 

the maximum hour requirements of the FLSA. 

40. Defendants willfully violated the FLSA because it knew or showed a 

reckless disregard for whether its pay practices were unlawful. 

41. During Smith’s employment with Defendants, the company did not 

maintain accurate time and pay records for Smith as required by 29 U.S.C. § 211(c) and 

29 C.F.R. pt. 516. 

42. During Smith’s employment with Defendants, the company did not post 

and keep posted the notice required by 29 C.F.R. § 516.4. 

43. Defendants continued the pay practice(s) complained of by Smith without 

investigation after being put on notice that the pay practice(s) violated the FLSA. 

44. Defendants has a history of FLSA violations that put the company on 

actual notice of the requirements of the FLSA. 

45. Prior to this lawsuit, Defendants conducted one or more internal 

investigations which revealed violations similar to the one(s) complained of by Smith. 

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46. Because Defendants willfully violated the FLSA, the company is liable to 

Smith for any FLSA violations that occurred during the Smith three years. 29 U.S.C. 

§ 255(a). 

47. As a result of the FLSA violation(s) described above, Defendants are liable 

to Smith for back wages, liquidated damages and attorney’s fees and costs. 29 U.S.C. § 

216(b). 

48. All pumpers and attendants who were paid at the same rate of pay for all 

of the hours they worked during the past three years employed by Defendants during 

the Smith three years are similarly situated to Smith because they (1) have similar job 

duties; (2) regularly worked or work in excess of forty hours per week; (3) were or are 

not paid overtime for the hours they worked or work in excess of forty per week as 

required by 29 U.S.C. § 207(a)(1); and (4) are entitled to recover back wages, liquidated 

damages and attorney’s fees and costs from Defendants under 29 U.S.C. § 216(b). 

V. Count One— 

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

49. Smith adopts by reference all of the facts set forth above. See, Fed. R. Civ. 

P. 10(c). 

50. During Smith’s employment with Defendants, he was a nonexempt 

employee. 

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51. As a nonexempt employee, Defendants were legally obligated to pay 

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

employed[]” for the hours he worked in excess of forty per week. 29 U.S.C. § 207(a)(1). 

52. Defendants did not pay Smith “at a rate not less than one and one-half 

times the regular rate at which he [was] employed[]” as required by 29 U.S.C. § 

207(a)(1). 

53. Instead, Defendants paid Smith a fixed sum—a salary—regardless of the 

number of hours he worked. 

54. If Defendants classified Smith as exempt from the maximum hour 

requirements of the FLSA, he was misclassified. 

55. As a result of the FLSA violation(s) described above, Defendants are liable 

to Smith for back wages equal to the difference between what it should have paid and 

what it actually paid. 

VI. Count Two— 

Willful Violation of the FLSA Under 29 U.S.C. § 255(a) 

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

P. 10(c). 

57. Defendants willfully violated the FLSA because they knew or showed a 

reckless disregard for whether its pay practices were unlawful. 

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58. Specifically, Defendants failed to maintain accurate time and pay records 

and failed to post an FLSA notice.

59. Because Defendants willfully violated the FLSA, the company is liable to 

Smith for any FLSA violations that occurred during the Smith three years. 29 U.S.C. 

§ 255(a). 

VII. Count Three— 

Collective Action Allegations Under 29 U.S.C. § 216(b) 

60. Smith adopts by reference all of the facts set forth above. See, Fed. R. Civ. 

P. 10(c). 

61. On information and belief, other employees of Defendants have been 

victimized by the FLSA violation(s) described above. 

62. These employees are similarly situated to Smith because, during the 

relevant time period, they held similar positions and were compensated in a similar 

manner, which, as explained above, violates the FLSA. 

63. Defendants’ unlawful policies or practices, which are described above, are 

generally applicable policies or practices and do not depend on the personal 

circumstances of the putative class members. 

64. Since Smith’s experiences are typical of the experiences of the putative 

class members, collective action treatment is appropriate. See, 29 U.S.C. § 216(b). 

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65. For these reasons, Smith requests that the Court certify this case as a 

collective action under 29 U.S.C. § 216(b) and authorize notice regarding its pendency 

and the right to join it to the following class: 

All pumpers and attendants employed by Defendants during 

the last three years at any location in this District who 

worked more than forty hours in any one or more workweeks 

and who were paid a fixed sum—a salary—regardless of the 

number of hours he worked. 

66. Defendants are liable to Smith and the putative class members for back 

wages equal to the difference between what they should have paid and what they 

actually paid. 

67. Smith has retained counsel who are well-versed FLSA collective action 

litigation and who are prepared to litigate this matter vigorously on behalf of him and 

all other putative class members. 

VIII. Count Four— 

Liquidated Damages, Attorney’s Fees & Costs Under 29 U.S.C. § 216(b) 

68. Smith adopts by reference all of the facts set forth above. See, Fed. R. Civ. 

P. 10(c). 

69. Smith is authorized to recover liquidated damages on his claims by statute. 

29 U.S.C. § 216(b). 

70. Smith is authorized to recover attorney’s fees and costs on his claims by 

statute. 29 U.S.C. § 216(b). 

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71. Smith has retained the professional services of the undersigned attorneys. 

72. Smith has complied with the conditions precedent to recovering attorney’s 

fees and costs. 

73. Smith has incurred or may incur attorney’s fees and costs in bringing this 

lawsuit. 

74. The attorney’s fees and costs incurred or that may be incurred by Smith 

were or are reasonable and necessary. 

75. Defendants are liable to Smith both individually and on behalf of all 

similarly situated employees for liquidated damages, attorney’s fees and costs by reason 

of the FLSA violations described above. 29 U.S.C. § 216(b). 

IX. Relief Sought 

76. Smith demands the following relief: 

a. an order allowing this action to proceed as a collective action under 29 

U.S.C. § 216(b); 

b. an incentive award for Smith for serving as class representative if the 

Court allows this action to proceed as a collective action under 29 

U.S.C. § 216(b); 

c. judgment against Defendants in Smith’s favor both individually and 

on behalf of all similarly situated employees of Defendants for back 

wages, liquidated damages and attorney’s fees, plus interest and costs; 

and 

d. all other relief and sums that may be adjudged against Defendants in 

Smith’s favor both individually and on behalf of all similarly situated 

employees of Defendants. 

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Respectfully Submitted, 

By: 

Melissa Moore 

State Bar No. 24013189 

melissa@mooreandassociates.net

Curt Hesse 

State Bar No. 24065414 

curt@mooreandassociates.net

Lyric Center 

440 Louisiana Street, Suite 675 

Houston, Texas 77002 

Telephone: (713) 222-6775 

Facsimile: (713) 222-6739 

ATTORNEYS FOR PLAINTIFF 

Of Counsel: 

Renu Tandale 

State Bar No. 24107417 

renu@mooreandassociates.net

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