1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

_____________________________________

JAMES JONES, individually and on :

behalf of all similarly situated individuals,

:

Plaintiff, Case No. 2:18-cv-410

:

v. Chief Judge Edmund A. Sargus, Jr.

:

CAPEX OILFIELD SERVICES, INC. Magistrate Judge Kimberly A. Jolson

:

Defendants.

_____________________________________ :

PLAINTIFF’S REPLY IN SUPPORT OF HIS

MOTION FOR CONDITIONAL CERTIFICATION

I. INTRODUCTION

In its Brief in Opposition1to Plaintiff’s Motion for Conditional Certification and CourtSupervised Notice to Potential Opt-In Plaintiffs Pursuant to 29 U.S.C. §216(b) (“Plaintiff’s 

Motion”),

2 Defendant Capex Oilfield Services, Inc. (“Capex”) raises two arguments; both of 

which are without merit and should be rejected. 

First, Capex argues that conditional certification should be denied because Plaintiff has 

not demonstrated the existence of a common FLSA-violating policy. To the contrary, Plaintiff 

has demonstrated that he and Capex’s other hourly field employees were all subjected to the 

same company-wide policies of requiring the field employees to attend pre-shift meetings and/or 

perform off-the-clock post-shift work, and failing to pay the employees for this extra time. Capex 

also attempts to argue the merits in support of its opposition to Plaintiff’s Motion; however,

merits-based arguments are premature at the conditional certification stage. 

 

1 Doc. No. 23. 

2 Doc. No. 11. 

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Second, Capex argues that if the Court does grant conditional certification (as it should), 

a series of unnecessary modifications should be made to Plaintiff’s Proposed Notice and 

Process.

3 However, the argument presented in support of Defendant’s suggested changes is

unpersuasive and should be rejected. For these reasons, Plaintiff’s Motion for Conditional 

Certification should be granted without modification. 

II. ARGUMENT

A. Plaintiff Has Made a Modest Showing that He and Other Hourly Field

Employees were Similarly Situated and Were Subject to the Same FLSAViolating Policies.

Defendant contends that Plaintiff “has not met the lenient standard for conditional 

certification for a collective action.”4 As noted by both parties, in order to obtain conditional 

certification, Plaintiff need only make a “modest factual showing” that he and other putative 

collective action members are “similarly situated” in order to achieve conditional certification. 

Hall v. U.S. Cargo & Courier Service, LLC, 299 F.Supp.3d 888, 894 (S.D. Ohio 2018); see also 

29 U.S.C. § 216(b). As Defendant concedes, “[t]he cases clearly establish that the Plaintiff’s 

burden at this first stage is lenient.”5“A plaintiff can make the required factual showing by 

demonstrating that he and the other putative class members ‘suffer from a single, FLSA-violating 

policy’ or [that] their claims are ‘unified by common theories of defendants’ statutory violations, 

even if the proofs of these theories are inevitably individualized and distinct.’” Ford v. Carnegie 

Mgmt. Services, Inc., No. 2:16-cv-18, 2016 WL 2729700, at *2 (S.D. Ohio May 11, 2016). 

Contrary to Defendant’s contention, Plaintiff has clearly met his lenient burden in 

demonstrating that there exists other similarly situated Capex hourly employees who have and 

 

3

See Doc. No. 11, at 18-20. 

4 Doc. No. 23, at 6.

5

Id. at 4.

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continue to be subjected to the same unlawful policies instituted by Defendant. Plaintiff 

submitted a Declaration6along with his Motion, in which he declares, under penalty of perjury,

to the truthfulness and accuracy of the following facts (among others):

1. I have direct and personal knowledge of each and every fact stated herein. 

8. Throughout my employment, I typically worked day shift from approximately 6:00 a.m. 

to 6:00 p.m.; however, I was regularly required to attend a pre-shift meeting for which I 

received no compensation. 

10. During my employment, I observed other hourly workers attending pre-shift meetings 

and performing unpaid post-shift work for Defendant. All Solids Control Technicians and 

(other positions) were required to attend the pre-shift meetings and/or remain working 

until relieved by the next shift. 

11. Throughout my employment, Defendant maintained a company-wide policy of requiring 

pre-shift meetings off-the-clock, as well as post-shift work until hourly workers were 

relieved of their duties. 

12. Defendant’s hourly field workers and I were not compensated for our pre-shift and postshift work, including pre-shift meetings and post-shift work until we were relieved of our 

position.

13. Defendant, our managers and supervisors were aware that hourly field employees, 

including myself, were required to attend pre-shift meetings, as well as remain working 

post-shift before we were relieved of our job duties.

14. I would estimate that during my employment with Defendant, there were upwards of 

approximately 20 or more hourly field employees in Ohio alone at any given time. 

Here, Plaintiff possesses personal knowledge of at least 20 other Capex employees who 

were subjected to the company’s same FLSA-violating policies: 1) forcing hourly employees to 

attend pre-shift meetings; 2) forcing hourly employees to continue working off-the-clock postshift until they were relieved of their duties; and 3) failing to compensate hourly employees for 

the extra time worked. At the preliminary stage, “the court accepts as true plaintiff’s allegations.” 

Ross v. Jack Rabbit Servs., LLC, No. 3-14-cv-00044, 2014 WL 2219236, at *3 (W.D. Ky. May 

29, 2014) (citations omitted). Accepting Plaintiff’s allegations in his Declaration as true, Plaintiff 

 

6 Doc. No. 11, Ex. A. 

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has easily met the low burden of a “modest factual showing” that there exists a class of other 

similarly situated employees who were subjected to the same FLSA-violating policies, even if 

based solely on his first-person observations while employed by Defendant. See Ford, 2016 WL 

2729700, at *2. 

Corroboration for Plaintiff’s Motion comes from Jordy Harger, Capex’s Branch Manager 

at the Ohio field office where Plaintiff worked under his supervision. Defendant attached Mr. 

Harger’s Declaration7to its Brief in Opposition. In the following excerpts from his Declaration, 

Mr. Harger declares, under penalty of perjury, to the following:

3. . . . Jones, like other hourly employees, was supposed to submit his own time on a 

weekly basis through Paychex, an online payroll service not affiliated with Capex . . . 

4. In addition to the 12-hour shifts that Jones and the other Solids Control Technicians 

worked, they would attend daily pre-shift meeting [sic], which typically lasted a half 

hour until September 2017, when the pre-shift meetings were reduced to 15 minutes.

6. Jones and all other Solids Control Technicians were paid for the time they spent in preshift meetings . . . 

(emphasis added).8

As shown above, Defendant’s own Branch Manager states that all other Solids Control 

Technicians were subjected to similar treatment for recording their hours, attending pre-shift 

meetings, and receiving compensation; Plaintiff was not an outlier in the way he was treated or 

compensated. Although Mr. Harger disagrees with Plaintiff over whether Plaintiff and the other 

Solids Control Technicians were compensated for their meeting time, addressing the merits at the 

conditional certification stage is premature. See Ross at *3. Rather, what is important is the fact 

that Defendant’s own Branch Manager corroborates Plaintiff’s contention that he and the other 

Solids Control Technicians were treated similarly. See Ford at *2. 

 

7 Doc. No. 23-1. 

8

Id.

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Further, Defendant is incorrect when it states that “Courts have generally denied 

conditional certification, despite the lenient standard, where a plaintiff supports the motion only 

with his own declaration and does not explain how he knows the facts on which he bases his 

motion.”9To begin, Plaintiff has explained how he knows the facts on which he brings his 

motion: his own direct and personal knowledge.

10 Even assuming arguendo that Plaintiff had 

not, Defendant misrepresents the lenient burden that plaintiffs must meet at the conditional stage 

as something much higher. Declarations are not required in order to meet Plaintiff’s lenient 

burden; in fact, Sixth Circuit courts have granted conditional certification on nothing more than a 

complaint alone. See, e.g., Pritchard v. Dent Wizard Int’l Corp., 210 F.R.D. 591, 595-96 (S.D. 

Ohio 2002) (holding potential class members to be “similarly situated” for purposes of receiving 

notice based solely upon allegations contained in the complaint); Belcher v. Shoney’s, Inc., 927 

F.Supp. 249, 251 (M.D. Tenn. 1996) (granting certification based solely upon allegations in 

complaint). 

Finally, Defendant’s repeated attempts to argue the merits in its Opposition are premature 

at the conditional certification stage, where “the court accepts as true the plaintiff’s allegations 

and does not reach the merits of the plaintiff’s FLSA claims.” Ross at *3. At this stage, “the 

Court is not making a substantive determination on the basis of all the evidence but simply 

adopting a procedure which permits notice to be given to other potential class members.” Frye v. 

Baptist Mem’l Hosp., Inc., No. 07-2708, 2008 WL 6653632, at *4 (W.D. Tenn. Sept. 16, 2008).11

 

9 Doc. No. 23, at 5.

10 See Doc. No. 11-1, at ¶ 1. 

11 In contrast, “[t]he second stage of analysis is much more stringent, and to avoid decertification, a plaintiff must 

meet a stricter standard of proving that the putative plaintiffs are ‘similarly situated.’” White v. MPW Indus. Servs., 

Inc., 236 F.R.D. 363, 367 (E.D. Tenn. 2006). 

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Defendant invites the Court to delve into the merits of this case by arguing that Plaintiff 

“was in fact paid” for all the hours he worked, including for pre-shift meetings.12 Defendant has 

gone so far as to attach Plaintiff’s timesheets and employment contract in support of its 

contention that Plaintiff was compensated for all time worked.13 While it is commendable that 

Defendant has made such an early head-start on its summary judgment motion,14 the 

aforementioned documents are irrelevant to the only question currently before the Court: 

whether Plaintiff has made his “modest factual showing” of similarly situated plaintiffs. Frye at 

*4. Because Plaintiff has met this lenient burden, the Court should grant his Motion for 

Conditional Certification. 

B. Plaintiff’s Proposed Notice and Process Are Appropriate and Do Not 

Require Any Modification.

Defendant contends that, in the event that this Court grants conditional certification, five 

(5) separate modifications should be made to Plaintiff’s Proposed Notice and process.15 Plaintiff 

opposes modifications One, Three, Four, and Five set forth by Defendant. Because four of 

Defendant’s suggested modifications are without merit, the Court should reject those four. 

1. Length of opt-in period. Defendant argues that Plaintiff’s proposed opt-in period 

of 90 days is “too long,” and contends instead that a 45-day opt-in period is adequate.16 The only 

case cited by Defendant in support of its proposition is Hall, 299 F.Supp.3d at 899 (granting a 

45-day opt-in period). However, Defendant misquotes Hall by suggesting that a shorter opt-in 

period is warranted because “[t]here is no contention [by Plaintiff] that the employees will be 

 

12 Doc. No. 23, at 6.

13 See Doc. No. 23-1, at 1-8. 

14 See Pratt v. Colvin, No. 14-cv-05651 JRC, 2015 WL 1221388, at *3 (W.D. Wa. Mar. 17, 2015) (“the early bird 

gets the worm. . .”). 

15 Doc. No. 23, at 7-8.

16 Id. at 7.

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difficult to locate.”17 Defendant has taken Hall out of context. That decision does not stand for 

the proposition that a plaintiff is required to show difficulty locating employees in order to 

justify an opt-in period above 45 days. Quite to the contrary, “There is no hard and fast rule 

controlling the length of FLSA notice periods. Courts in this district have frequently used their 

discretion to grant ninety-day opt-in periods.” Brittmon v. Upreach, LLC, 285 F.Supp.3d 1033, 

1045 (S.D. Ohio 2018) (citations omitted). In fact, courts within the Sixth Circuit have

commonly granted opt-in periods longer than 45 days without mentioning any difficulty locating 

opt-ins at all. See, e.g., Casarez v. Producers Service Corp., No. 2:17-cv-1086, 2018 WL 

2389721, at *9 (S.D. Ohio May 25, 2018) (Sargus, C.J.) (granting opt-in period of 90 days); 

Brittmon at 1045 (granting 90-day opt-in period; noting the courts’ power of discretion in 

determining the length of opt-in periods). Further, a 90-day opt-in period better protects the 

FLSA’s remedial goals by providing putative opt-ins with “time to fully consider their options.” 

Hall at 900. For these reasons, a 90-day opt-in period best serves the needs of this particular 

case. 

2. Introduction. Defendant contests the wording used in part of Plaintiff’s proposed 

notice, which states that it “advises you of how your rights are affected by this lawsuit.”18

Defendant instead suggests that it should read: “advises you of how your rights may be affected 

by this lawsuit.”19 Plaintiff believes that this change is reasonable, and will agree to this 

modification if conditional certification is granted. 

3. Eligibility to Join. Defendant contends that Plaintiff’s description should be more 

specific, and that the “eligibility” section of Plaintiff’s proposed notice should be rewritten. 

Plaintiff opposes these changes because Plaintiff’s proposed language is proper, accurate, and 

 

17 Id.

18 See Doc. No. 23, at 7.

19 Id.

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complete in its current form. Nonetheless, Plaintiff states that he will work with Defendant to 

reach language that is agreeable to both parties if conditional certification is granted. 

4. Legal Representation. Citing Hall, supra, Defendant incorrectly states that “[t]his 

Court has held that the notice should include an additional sentence informing opt-ins that they 

have the right to be represented by counsel of their own choice.”20 Defendant has misrepresented 

the language of Hall. That decision does not hold that informing opt-ins of the right be 

represented by other counsel is a requirement of a plaintiff’s notice, but merely that it “is an 

appropriate element.” Id. at 898. Defendant provides no additional reasoning why a sentence 

informing putative opt-ins of their ability to seek other counsel is necessary in this particular 

case. Plaintiff believes that including unrequired additional information only increases the odds 

of confusing putative opt-ins about their rights. For these reasons, Defendant’s proposed change 

should not be incorporated here. 

5. Contingency Fee. Defendant challenges the language in Plaintiff’s proposed 

notice regarding contingency fees. Specifically, Defendant represents that it will not object to 

Plaintiff’s language if Plaintiff stipulates that his counsel will seek a lodestar fee award, and not 

a percentage of the fund. Plaintiff objects to Defendant’s proposition because Plaintiff’s 

proposed language is proper, accurate, and complete in its current form, and because it would be 

dubious precedent to require a party at such an early stage of litigation to stipulate to how that 

party’s counsel should be paid. Nonetheless, Plaintiff states that he will work with Defendant to 

reach language that is agreeable to both parties if conditional certification is granted.

III. CONCLUSION

 

20 Id. at 8 (emphasis added). 

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For the foregoing reasons, the Court should grant Plaintiff’s Motion for Conditional 

Certification and allow notice to issue to all individuals who work or have worked for Capex 

Oilfield Services as hourly field employees who have worked over 40 hours in any workweek 

that they attended required pre-shift meetings and/or performed post-shift work from April 27, 

2015 and through the final disposition of this matter. 

Dated: August 13, 2018

Respectfully Submitted, 

/s/ Robert E. DeRose

Robert E. DeRose (0055214)

Jessica R. Doogan (0092105)

BARKAN MEIZLISH HANDELMAN

GOODIN DEROSE WENTZ, LLP

250 E. Broad St., 10th Floor

Columbus, Ohio 43215

Tel: (614) 221-4221

Fax: (614) 744-2300

bderose@barkanmeizlish.com

jdoogan@barkanmeizlish.com

/s/ Matthew J.P. Coffman

Matthew J.P. Coffman (0085586)

COFFMAN LEGAL, LLC

1457 S. High St. 

Columbus, Ohio 43207

Tel: (614) 949-1181

Fax: (614) 386-9964

mcoffman@mcoffmanlegal.com

Attorneys for Plaintiff and those

similarly situated

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed electronically, and Notice of this 

filing will be sent by operations of the Court’s electronic filing system to all parties indicated on 

the electronic filing receipt. Parties may access this filing through the court’s ECF system. 

Dated: August 13, 2018

/s/ Robert E. DeRose

Robert E. DeRose

An Attorney for Plaintiff and those

similarly situated

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