UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION

JAYME PEERY, individually, and on behalf § of others similarly situated § § Plaintiffs, § § CASE NO. 6:18-CV-00358-ADA v. § § NIXON ENGINEERING, LLC, § § Defendant. §

ORDER Before the Court are Defendant’s Motion for Reconsideration of Conditional Certification (ECF No. 46) and Defendant’s Motion for Clarification of the Court’s March 31, 2021 Order (ECF No. 55). “Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to ‘revise[ ] at any time’ ‘any order or other decision ... [that] does not end the action.’” Austin v. Kroger Texas, L.P.,

(5th Cir. 2017) (quoting Fed. R. Civ. P. 54(b)). “Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.”

After this Court granted conditional certification to Plaintiffs under the Lusardi framework, the Fifth Circuit rejected Lusardi’s conditional certification process. Swales v. KLLM Transp. Servs., L.L.C.,

(5th Cir. 2021). In light of the Fifth Circuit’s decision in Swales, this Court finds that reconsideration under Rule 54(b) is necessary to adhere to this intervening change in the law. See also Eltayeb v. Deli Mgmt., Inc., NO. 4:20-CV-00385,

, at *2–3 (E.D. Tex. Mar. 19, 2021) (finding the Fifth Circuit’s issuance of Swales required the court to grant reconsideration of conditional certification). In Defendant’s Motion for Clarification, Defendant requests the Court (1) grant the Motion for Reconsideration and (2) clarify the Court’s March 31, 2021 Text Order denying Defendant’s

Motion to Supplement, or in the alternative (3) grant its request for interlocutory appeal should the Court deny the Motion for Reconsideration. Granting Defendant’s Motion for Reconsideration means the Court will decide certification under the Swales framework, obviating the need for clarification of the Text Order on notice for the conditionally certified collective. The Court ORDERS that Defendant’s Motion for Reconsideration be GRANTED. IT IS FURTHER ORDERED that Defendant’s Motion for Clarification is MOOT. IT IS FURTHER ORDERED that on or before December 17, 2021, the parties shall each submit to the Court a brief containing the facts and legal considerations they feel are material to the “similarly situated” analysis to aid the Court in determining the limited discovery necessary to proceed under Swales.

IT IS FURTHER ORDERED that this matter be referred to United States Magistrate Judge Jeffrey C. Manske for disposition of all non-dispositive pretrial matters as provided in

(b)(1)(A) and for findings and recommendations on all case-dispositive motions as provided in

(b)(1)(B).

SIGNED this 1st day of December, 2021.