Cordova et al v. R&A Oysters, Inc. et al

Filing 175

ORDER granting 174 Motion to Certify Class. The Court conditionally certifies Count Three as a class action. Miquel Angel Fuentes Cordova is appointed as the representative of the class. The Southern Poverty Law Center is appointed as class counsel. Signed by Chief Judge William H. Steele on 9/12/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MIGUEL ANGEL FUENTES
CORDOVA, et al., etc.,
Plaintiffs,
v.
R & A OYSTERS, INC., et al.,
Defendants.

)
)
)
)
)
) CIVIL ACTION 14-0462-WS-M
)
)
)
)
ORDER

This matter is before the Court on the parties’ joint motion for conditional
certification of the settlement class and appointment of class counsel. (Doc. 174).
The request is directed only to Count III of the amended complaint, (Doc. 20),
which sets forth a claim for breach of contract. The proposed class, which mirrors
precisely that sought in the amended complaint, (id. at 15), is as follows:
[A]ll those individuals admitted as H-2B temporary foreign workers
pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by
the Defendants in Alabama between October 8, 2008 until the filing
date of the present action, and who were paid on an hourly basis.
(Doc. 174-1 at 2).
The parties seek certification under Rules 23(a) and 23(b)(3). The
requirements of these rules apply with at least equal vigor in the settlement-class
context. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); accord
Ortiz v. Fibreboard Corp., 527 U.S. 815, 848-49 (1999).
The Rule 23(a) requirements for certification of any class action are: (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy. The additional
requirements for certification under Rule 23(b)(3) are: (5) predominance; and (6)
superiority. Amchem, 521 U.S. at 613, 615. For reasons expressed below, the
Court is satisfied that these requirements are satisfied here.

To satisfy the numerosity requirement, the class must be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This
determination is not made in a vacuum but with due regard to practical realities.
Thus, for example, the Eleventh Circuit has upheld certification of a class of 31
individuals, based in part on the “geographic dispersion” of the class members.
Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 878 (11th Cir. 1986).
The proposed class consists of 51 specific individuals.1 “[W]hile there is
no fixed numerosity rule, generally less than twenty-one is inadequate, more than
forty adequate, with numbers between varying according to other factors.” Cox v.
American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal
quotes omitted). The Court has construed Cox as standing for the proposition that
“[n]umerosity is generally presumed when a proposed class exceeds 40 members.”
LaBauve v. Olin Corp., 231 F.R.D. 632, 665 (S.D. Ala. 2005); see also County of
Monroe v. Priceline.com, Inc., 265 F.R.D. 659, 667 (S.D. Fla. 2010) (a class of 59
“is presumptively large enough to satisfy the numerosity requirement”).
The proposed class consists of Mexican nationals, mostly residing in small
towns or rural areas, with no command of the English language and with claims of
small value. Under these circumstances, the Court finds the proposed class
sufficiently numerous to render joinder of all class members impracticable. See
Ramirez v. GLK Foods, LLC, 2014 WL 2612065 at *4 (E.D. Wis. 2014) (finding,
in an action similar to that brought here, and for reasons echoing those addressed
above, that a class of at least 35 satisfied the numerosity requirement); see also
Rosario-Guerro v. Orange Blossom Harvesting, 265 F.R.D. 619, 625 (M.D. Fla.
2010) (in a similar lawsuit, and for similar reasons, finding that a class of as few as
60 members satisfied the numerosity requirement).

1

That the identity of the class members is known confirms that “the proposed
class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691
F.3d 1302, 1304 (11th Cir. 2012) (internal quotes omitted).

2

Commonality requires that the action “must involve issues that are
susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811 (11th
Cir. 2001). That requirement is easily satisfied here, as the existence vel non of a
contract (which the defendants dispute) is based on the same documents and
conduct as to each class member.
“A class representative must possess the same interest and suffer the same
injury as the class members in order to be typical under Rule 23(a)(3).” Murray,
244 F.3d at 811. “A sufficient nexus is established if the claims or defenses of the
class and the class representative arise from the same event or pattern or practice
and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332, 1337 (11th Cir. 1984); accord Williams v. Mohawk Industries, Inc.,
568 F.3d 1350, 1357 (11th Cir. 2009). The named plaintiffs’ contract claim is
indistinguishable from that of every other class member; it arises from the same
pattern or practice (not reimbursing migrant workers their travel and tool
expenses), addresses the same elements of uncompensated expense, and asserts a
single legal theory (breach of contract). Only the dollar amount of damages
varies, and “[d]ifferences in the amount of damages between the class
representative and other class members d[o] not affect typicality.” Kornberg, 741
F.2d at 1337.
Adequacy “encompasses two separate inquiries: (1) whether any
substantial conflicts of interest exist between the representatives and the class; and
(2) whether the representatives will adequately prosecute the action.” Valley Drug
Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003)
(internal quotes omitted). Named plaintiff Miguel Angel Fuentes Cordova plainly
suffers from no conflict of interest, as his claim is both substantively identical to
that of every class member and comparable in amount. The Court’s familiarity

3

with the plaintiffs’ tenacious prosecution of this action satisfies it that Cordova
will adequately prosecute the action on behalf of the class.2
Adequacy also includes an assurance the class representatives will
vigorously pursue the interests of the class “through qualified counsel.” Valley
Drug, 350 F.3d at 1189 (internal quotes omitted). Plaintiffs’ counsel is well
qualified to pursue the interests of the class. (Doc. 174-5).
The Court finds that common issues of law and fact predominate. As
noted, the only individual issue is the quantity of damages per class member, and
even that issue must be resolved by a simple formula. (Doc. 173-2 at 14).
“Particularly where damages can be computed according to some formula,
statistical analysis, or other easy or essentially mechanical methods, the fact that
damages must be calculated on an individual basis is no impediment to class
certification.” Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir. 2004)
(footnotes omitted). Even less so here, where the values of every variable save
one (the amount of expense incurred each season) are already known for each
class member, and even the amount of expense incurred each season is already
known (from previous resolution of the FLSA minimum wage claims) for almost
half of the approximately 155 total seasons worked by the class members.
In view of the factors to be considered, it is clear that a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy. As Mexican nationals and residents, with small claims and no
fluency in English and limited familiarity with the American legal system, the
2

Named plaintiff Leovardo Morales Inclan has, in addition to the contract claim,
an FLSA retaliation claim (as do six other class members). The proposed settlement
awards Inclan over 100 times as much on his retaliation claim as on his contract claim.
(Doc. 173-2 at 27). Because it is unclear to the Court whether the amount available to
settle the lawsuit’s contract claims may have been reduced by the amount allocated to
settle the retaliation claims, and because Inclan’s financial interest in the contract claim is
miniscule compared to that of most class members (and compared to his interest in his
FLSA retaliation claim), (id. at 27-28), the Court declines to decide whether Inclan is an
adequate class representative. Because Cordova is an adequate class representative, class
certification may proceed nevertheless.
4

class members have little interest in individually controlling the prosecution of
separate actions. There is no other litigation concerning the controversy. The
state and federal courts of Alabama appear to offer the only potential domestic
forum, and the defendants presumably would resist being haled into Mexican
courts. Finally, the proposed settlement moots any potential difficulties in
managing a class action. Amchem, 521 U.S. at 620.
For the reasons set forth above, and for the purposes of settlement only, the
motion for conditional certification of the settlement class is granted. The Court
conditionally certifies Count Three of this action as a class action on behalf of the
following settlement class:
[A]ll those individuals admitted as H-2B temporary foreign workers
pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by
the Defendants in Alabama between October 8, 2008 until the filing
date of the present action, and who were paid on an hourly basis.
For the reasons set forth above, the plaintiffs’ deemed motion to appoint
Miguel Angel Fuentes Cordova as class representative is granted, and Cordova is
appointed as the representative of the class. To the extent the plaintiffs seek
appointment of Leovardo Morales Inclan as additional class representative, their
motion is denied.
“An order that certifies a class action must … appoint class counsel ….”
Fed. R. Civ. P. 23(c)(1)(B). After considering the matters identified in Rule
23(g)(1)(A), and for the reasons set forth above, the Court concludes that the
Southern Poverty Law Center is adequate class counsel. The motion to appoint
class counsel is granted, and the Southern Poverty Law Center is appointed as
class counsel to represent the settlement class.
DONE and ORDERED this 12th day of September, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

5