16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 1 of IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DARREN DOHRN, KEITH HILL, AND KEVIN HILL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED ADV. PROC. NO. JURY DEMANDED VS. SANJEL (USA), INC. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING Plaintiffs, DARREN DOHRN ( Dohrn ), KEITH HILL, and KEVIN HILL (collectively Plaintiffs ), on behalf of themselves and all other similarly situated affected employees, file this Complaint against SANJEL (USA), INC. ( Sanjel or Debtor ), showing in support as follows: I. NATURE OF THE CASE 1. This is a civil action brought by Plaintiffs pursuant to the Worker Adjustment and Retraining Notification Act of 1988, 29 U.S.C. 2101-2109 et seq., (the WARN Act ) for Debtor s failure to give the required WARN Act written notice to Plaintiff and similarly situated individuals (the Class Members ) in connection with recent Mass Layoffs and/or Plant Closing at Debtor s Cibolo, Texas site of employment. 2. Plaintiffs were full-time employees of Debtor working at Debtor s Cibolo, Texas site of employment until they and the other Cibolo Class Members were terminated, as a part of/result of a Mass Layoff and/or Plant Closing without the required statutory written notification mandated by the WARN Act. 3. Accordingly, Debtor is liable under the WARN Act for failing to provide Plaintiffs and the Class Members written notice, including 60 days advance written notice, as required by the PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 1
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 2 of WARN Act. II. THE PARTIES, JURISDICTION AND VENUE A. Plaintiff Darren Dohrn 4. Darren Dohrn is a natural person who resides in New Braunfels, Texas. He has standing to file this lawsuit. 5. Keith Hill is a natural person who resides in Houston, Texas. He has standing to file this lawsuit. 6. Kevin Hill is a natural person who resides in Houston, Texas. He has standing to file this lawsuit. B. Class Members 7. There is a distinct class in this lawsuit the Cibolo Class Members who are/were employees of Debtor at Debtor s single site of employment at Cibolo, Texas. Collectively, the Cibolo Class Members are referred to as the Class Members. C. Cibolo Class Members 8. The Cibolo Class Members are affected employees who are similarly situated to Plaintiffs, and who were or may reasonably be expected to experience an employment loss due to termination of employment as a consequence of Debtor s Mass Layoff at Debtor s single site of employment in Cibolo, Texas. 9. Alternatively, the Cibolo Class Members are affected employees who are similarly situated to Plaintiffs, and who were or may reasonably be expected to experience an employment loss due to termination of employment as a consequence of Debtor s Plant Closing at Debtor s single site of employment/operational units at that single site of employment in Cibolo, Texas. D. Debtor, Sanjel (USA), Inc. 10. Debtor, Sanjel (USA), Inc. is a Montana Corporation doing business in the state of Texas PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 2
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 3 of with its principal place of business at 350 N. Saint Paul Street, Dallas, TX 75201-4201. 11. During all times relevant to this lawsuit, Debtor has done business in the State of Texas. 12. Debtor s Cibolo office is located at 11 Guadalupe Drive, Cibolo, TX 78108.. Debtor may be served with summons through its registered agent, CSC-Lawyers Incorporating Service Company 211 E. 7th Street, Suite 620, Austin, TX 78701-3218. E. Jurisdiction and Venue 14. The Court has personal jurisdiction over Debtor based on both general and specific jurisdictions. 15. During all times relevant to this lawsuit, Debtor has done business in the State of Texas and continues to do business in the State of Texas. 16. The Court has subject matter jurisdiction over this case based on federal question jurisdiction, 28 U.S.C. 31, because Plaintiffs base their claims on federal law, namely 29 U.S.C. 2101-2109. 17. Venue is proper in the United States Bankruptcy Court for the Western District of Texas because Debtor maintains an office located in this judicial district in Cibolo, Texas. Finally, at all relevant times, Debtor transacted business in this District and continues to transact business in this District. 29 U.S.C. 2104(a)(5). III. FACTUAL BACKGROUND 18. Plaintiffs incorporates the preceding paragraphs by reference as if set forth fully in this section. 19. At all times material to this action, Debtor has been a business enterprise that employs 100 or more employees, excluding part-time employees. 20. Prior to the Mass Layoffs and/or Plant Closings that form the basis of this action, Debtor employed more than 100 employees, exclusive of part-time employees, at each of the sites of PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 3
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 4 of employment made the subject matter of this lawsuit. A. Cibolo, Texas 21. Dohrn, Hill and Hill primarily worked for Debtor as a full time employee in and around Cibolo, Texas as Site Logistics, since 2014. 22. Dohrn worked on drilling locations for Debtor in the Eagle Ford Shale in South Texas. During each two week shift or hitch, it was common for Dohrn and similarly situated employees to work 80 plus hours per week/160 hours plus per hitch. 23. Plaintiffs worked with numerous other similarly situated employees of Debtor at/from/through the Cibolo, Texas site of employment. 24. It was common for employees working at/from/through the Cibolo, Texas site of employment to be exchanged amongst Debtor s crews with such staffing planning and decisions made at/from/through the Cibolo, Texas site of employment. 25. Debtor operated numerous fracking/coiled tubing crews the Eagle Ford Shale at/from/through the Cibolo, Texas site of employment. Management over the Eagle Ford Shale drilling operations was conducted from that site of employment and also from Debtor s nerve center in Calgary as referred to as in its bankruptcy filings. Indeed, Debtor had management employees who worked in/out of the Cibolo, Texas site of employment that managed all operations in the Eagle Ford Shale for Debtor. Furthermore, administrative, maintenance and support duties for Debtor s operations in the Eagle Ford Shale occurred at/from/through the Cibolo, Texas site of employment, that site of employment was the central work location of Debtor for Dohrn and the Cibolo Class Members, and employees, such as Dohrn and the Cibolo Class Members, were assigned to various job sites of Debtor operating in the Eagle Ford Shale from that site of employment. 26. Beginning in approximately September, 2015, Debtor began the sales process for the PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 4
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 5 of company, as more specifically stated in Debtor s Petition for Recognition - 46-77 (Doc. 9) filed in the man bankruptcy proceeding and incorporated herein. Typically, when companies are sold the employment of their crews and related workers is terminated. 27. On May 5, 2016 Plaintiffs were informed in writing by Debtor that their employment was being terminated. On information and belief, at least 50 other similarly situated employees working at/from/through the Cibolo, Texas site of employment were terminated on or about the same day as Plaintiffs. 28. Plaintiffs was not provided with a 60 days advance written notice by Debtor of their termination of employment. 29. Plaintiffs were not provided with any written notice by Debtor prior to their termination of employment. 30. Plaintiffs were not provided with any written notice by Debtor at the time of their termination of employment. 31. Plaintiffs were not provided with written notice, at any time, of each and every of the following items in connection with their termination of employment: (a) A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect; (b) The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated; (c) An indication whether or not bumping rights exist; (d) The name and telephone number of a company official to contact for further information. 32. At and around the time of their verbal termination, and in time period thereafter, Plaintiffs learned that numerous other similarly situated employees were terminated, before and after the date of their termination, who worked at/from/through Debtor s Cibolo, Texas site of employment. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 5
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 6 of 33. On information and belief, Debtor stacked rigs/terminated employees at the Cibolo, Texas site of employment in December 2014 and January and February 2015 with additional rig stacking/employment terminations at/from/through that site of employment expected. When those rigs were stacked, the employment of rig crewmembers and other employees working at/from/through the Cibolo, Texas site of employment was terminated. Like Plaintiff s situation, those terminations were verbal without written notice or advance written notice. 34. The exact number of terminated employees at the Cibolo, Texas site of employment within a 30 day and 90-day period of Plaintiff s termination of employment is information that is only known to Debtor. Similarly, the exact number of employees employed at/from/through that site of employment is information that is currently known only to Debtor. 35. On information and belief, Debtor terminated the employment of at least 1/3 of its employees, numbering 50 or more, working at/from/through the Cibolo, Texas site of employment within 30 days of Plaintiff s termination of employment. 36. Alternatively, and on information and belief, Debtor terminated the employment of at least 1/3 of its employees, numbering 50 or more, working at/from/through the Cibolo, Texas site of employment within 90 days of Plaintiff s termination of employment. On information and belief, all employment terminations during this 90 day look ahead and look behind time period are not the result in separate and distinct actions and are instead related to Debtor ongoing and foreseeable reduction in operations. III. WARN ACT CLAIMS 37. Plaintiffs incorporate the preceding paragraphs by reference as if set forth fully in this section. 38. At all relevant times, Plaintiffs and the Class Members were full-time employees of Debtor as that term is used in the Warn Act. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 6
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 7 of 39. At all relevant times, Debtor was and is an employer under the WARN Act. 29 C.F.R. 639.3(a). 40. Debtor s Cibolo, Texas site constituted a single site of employment for Plaintiffs and the Cibolo Class Members. 29 C.F.R. 639.3(i). 41. Plaintiffs maintain this action on behalf of themselves and on behalf of each other similarly situated employee. 42. Each Cibolo Class Member is similarly situated to Plaintiffs with respect to his or her rights under the WARN Act. 29 U.S.C. 2104(a)(5). A. Cibolo Mass Layoff 43. On information and belief, on or about May 5, 2016, Debtor ordered/executed a Mass Layoff at the Cibolo, Texas single site of employment as that term is defined by the WARN Act. 29 C.F.R. 639.3(c) & 639.5(a)(i). 44. In the alternative, and on information and belief, during a 90-day period from January 16, 2015, Debtor ordered/executed a Mass Layoff at the Cibolo, Texas single site of employment as that term is defined by the WARN Act. 29 C.F.R. 639.3(c) & 639.5(a)(ii). 45. Plaintiffs and the Cibolo Class Members suffered an employment loss in connection with Debtor s Mass Layoff made the subject matter of this lawsuit. 29 C.F.R. 639.3(f). Namely, the employment of Plaintiffs and the Cibolo Class Members with Debtor was terminated. Said termination was not discharge for cause, voluntary departure, or retirement. 46. Plaintiffs and the Cibolo Class Members are aggrieved and affected employees under the WARN Act in connection with Debtor s Mass Layoff. 29 U.S.C. 2101(5); 29 C.F.R. 639(e). Plaintiffs and the Cibolo Class Members were employees of Debtor who did not received the written notice required by 29 U.S.C. 2102 and were reasonably expected by Debtor and/or should have been reasonably expected by Debtor to experience an employment loss as a result of PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 7
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 8 of Debtor s Cibolo, Texas Mass Layoff made the subject matter of this lawsuit. B. Cibolo Plant Closing 47. Pleading in the alternative, each drilling rig associated with the Cibolo, Texas single site of employment constituted a distinct operating unit within that single site of employment. 29 C.F.R. 639.3(j). 48. Pleading in the alternative, with the number of drilling rigs stacked within 30 days of January 16, 2015, Plaintiffs and the Cibolo Class Members suffered a Plant Closing. 29 C.F.R. 639.3(b) & 639.5(a)(i). Plant Closing means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shut down results in an employment loss during any 30-day period at the single site of employment for 50 or more employees, excluding any part-time employees. 29 C.F.R. 639.3(b) (emphasis added). 49. Pleading in the alternative, and on information and belief, with the number of drilling rigs stacked within 90 days of January 16, 2015, Plaintiffs and the Cibolo Class Members suffered a Plant Closing. 29 C.F.R. 639.3(b) & 639.5(a)(ii). 50. Pleading in the alternative, Plaintiffs and the Cibolo Class Members suffered an employment loss in connection with Debtor s Cibolo, Texas Plant Closing made the subject matter of this lawsuit. 29 C.F.R. 639.3(f). 51. Plaintiffs and the Cibolo Class Members suffered an employment loss in connection with Debtor s Cibolo, Texas Plant Closing made the subject matter of this lawsuit. 29 C.F.R. 639.3(f). Namely, the employment of Plaintiffs and the Cibolo Class Members with Debtor was terminated. Said termination was not discharge for cause, voluntary departure, or retirement. 52. Plaintiffs and the Cibolo Class Members are aggrieved and affected employees under the WARN Act in connection with Debtors Cibolo, Texas Plant Closing. 29 U.S.C. 2101(5); 29 PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 8
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 9 of C.F.R. 639(e). Plaintiffs and the Cibolo Class Members were employees of Debtor who did not received the written notice required by 29 U.S.C. 2102 and were reasonably expected by Debtor and/or should have been reasonably expected by Debtor to experience an employment loss as a result of Debtor s Cibolo, Texas Plant Closing made the subject matter of this lawsuit. C. No Written Notice of Cibolo Mass Layoff and/or Plant Closing 53. Plaintiffs and the Cibolo Class Members were not provided with 60 calendar days advance written notice by Debtor of their planned/upcoming termination of employment, Mass Layoff and/or Plant Closing. 54. On information and belief, Debtor did not notify the Texas agency responsible for dislocated workers with the notice provisions required by 29 U.S.C. 2102(a) and 29 C.F.R. 639.7(e) in connection with the Cibolo, Texas Mass Layoff and/or Plant Closing made the subject matter of this lawsuit. 55. On information and belief, Debtor did not notify the Texas agency responsible for dislocated workers with the notice provisions required by 29 U.S.C. 2102(a) and 29 C.F.R. 639.7(e) in connection with the termination of the employment of Plaintiffs and the Cibolo Class Members. D. Damages 56. As a result of Debtor s violations of the WARN Act, Plaintiffs and the Cibolo Class Members have suffered damages. Plaintiffs and the Cibolo Class Members seek all damages available to them in connection with the claims set forth in this lawsuit, including 60 days wages and benefits as provided by the WARN Act. 29 U.S.C. 2104. IV. CLASS ACTION ALLEGATIONS 57. Plaintiffs incorporates the preceding paragraphs by reference as if set forth fully in this section. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 9
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 10 of 58. Plaintiffs brings this action as a class action under Federal Rule of Civil Procedure 23(a), (b)(1) and (3) and the WARN Act 29 U.S.C. 2104(a)(5). A. Cibolo Class Members 59. Plaintiffs bring this action on behalf of themselves and all other similarly situated employees. Plaintiffs seeks to represent a Class initially defined as: All of Debtor s employees working at/from/through its Cibolo, Texas yard that were terminated from employment as of May 31, 2016 without 60 days advance written notice required by the WARN Act. Alternatively, all of Debtor s employees working at/from/through its Cibolo, Texas yard that were terminated from employment as of May 31, 2016 without 60 days advance written notice required by the WARN Act. Plaintiffs requests the opportunity to expand, narrow or modify the class definition pursuant to a motion for class certification. 60. Plaintiffs and the Cibolo Class Members are affected employee(s) subject to an employment loss, as those terms are defined in the WARN Act at 29 U.S.C. 2101(a)(5) and (6). 61. Plaintiffs claims satisfy the tuberosity, commonality, typicality, adequacy and superiority requirements of a class action. 62. The Cibolo Class Members exceed 50 in number, and joinder is therefore impracticable. The precise number of Cibolo Class Members and their addresses are readily determinable from Debtor s records. 63. There are common questions of fact and law as to the class that predominate over any questions affecting only individual class members. The questions of law and fact common to the class arising from Debtor s actions/omissions include, but are not limited to, the following: a. Whether the provisions of the WARN Act apply; b. Whether Debtor s employee terminations at the Cibolo Texas site PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 10
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 11 of of employment during the time period of September 1, 2015 to May 5, 2016 constitute a Mass Layoff and/or Plant Closing under the WARN Act; c. Whether Debtor s employee terminations at the Cibolo Texas site of employment during the time period of September 1, 2015 to May 5, 2016 constitute a Mass Layoff and/or Plant Closing under the WARN Act; d. Whether Debtor failed to provide the notices required by the WARN Act; e. Whether Debtor can avail itself of any provisions of the WARN Act permitting lesser periods of written notice; and f. The appropriate method to calculate damages under the WARN Act. 64. The questions above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency, economy, efficiency, fairness and equity, to other available methods for the fair and efficient adjudication of the WARN Act claims. 65. A class action is the superior method for the fair and efficient adjudication of this controversy. Debtor has acted or refused to act on grounds generally applicable to the class. The presentation of separate actions by individual class members could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Debtor, and/or substantially impair or impede the ability of class members to protect their interests. 66. Plaintiffs are an affected employee who was terminated by Debtor as of May 31, 2016 without the written notice required by the WARN Act. They are therefore members of the class. Plaintiffs are committed to pursuing this action and has retained counsel with extensive experience in prosecuting complex wage, employment, and class action litigation. Accordingly, Plaintiffs are adequate representatives of the class and has the same interests as all of its members. Further, Plaintiffs claims are typical of the claims of all members of the class, and Plaintiffs will fairly and adequately protect the interests of the absent members of the class. Plaintiffs and their counsel PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 11
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg 12 of do not have claims or interests that are averse to the Cibolo Class Members. 67. Further, class action treatment of this lawsuit is authorized and appropriate under the WARN Act 29 U.S.C. 2104(a)(5), which clearly provides that a plaintiff seeking to enforce liabilities under the Act may sue either on his or her behalf, for other persons similarly situated, or both. V. JURY DEMAND 68. Plaintiffs demands a jury trial. VII. DAMAGES AND PRAYER 69. Plaintiffs asks that the Court issue a summons for Debtor to appear and answer, and that Plaintiffs and the Cibolo Class Members be awarded a judgment against Debtor or order(s) from the Court for the following: a. An order certifying that the action(s) may be maintained as a class action/class actions under Federal Rule of Civil Procedure 23; b. Designation of William S. Hommel, Jr. as the representative of the Cibolo Class, and as Class Counsel; c. All damages allowed by the WARN Act, including back pay and benefits as provided by 29 U.S.C. 2104; d. Pre-judgment and post-judgment interest; e. Costs; f. Reasonable attorney s fees; and g. All other relief to which Plaintiffs and the Cibolo Class Members are entitled. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE 12
16-50778-cag Doc#248 Filed 05/18/16 Entered 05/18/16 15:47:16 Main Document Pg of Respectfully submitted, /s/ William S. Hommel, Jr. State Bar No. 09934250 HOMMEL LAW FIRM 1404 Rice Road, Suite 200 Cibolo, Texas 75703 903-596-7100 469-533-1618 Facsimile ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I certify a copy of the following document will be served upon the persons in the Master Service List by overnight delivery, U.S. First Class Mail, postage pre-paid, and/or by electronic notification by the Electronic Case Filing system for the United Bankruptcy Court for the Western District of Texas on or before May 18, 2016. /s/ William S. Hommel, Jr. PLAINTIFFS ORIGINAL CLASS ACTION ADVERSARY PROCEEDING PAGE