Cordova et al v. R&A Oysters, Inc. et al
ORDER granting in part the 69 Motion for Protective Order, with deadlines as set out. Signed by Chief Judge William H. Steele on 7/27/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MIGUEL ANGEL FUENTES
CORDOVA, et al., etc.,
) CIVIL ACTION 14-0462-WS-M
R & A OYSTERS, INC., et al.,
This matter is before the Court on the plaintiffs’ motion for a protective
order. (Doc. 69). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 69, 72, 75), and the motion is ripe for
This FLSA action has been conditionally certified as a collective action,
with the conditionally certified class consisting of all non-supervisory hourly
workers admitted under the H-2B temporary foreign worker visa program and
employed by the defendant at any point since October 2011. (Doc. 44 at 3, 5).
The potential plaintiffs work or have worked as oyster shuckers at the defendant’s
oyster processing facility in Mobile County and are Mexican citizens who
permanently reside in rural areas of Mexico. The defendants are Rodney and Ann
Fox and their company, R&A Oysters, Inc.
The plaintiffs believe the defendants have engaged in coercive
communications with several opt-in plaintiffs, two of whom have filed notices of
the withdrawal of their consent to join the collective action. (Doc. 66). A third
has submitted a withdrawal letter to plaintiffs’ counsel. (Doc. 69-2 at 3).
The plaintiffs seek the following relief: (1) discovery regarding the
circumstances surrounding the requests to withdraw; (2) written notice to all
existing and potential plaintiffs advising that the defendants cannot condition
future employment on non-participation in this lawsuit; and (3) an instruction to
certain present and past employees and agents of the defendants regarding the
FLSA’s anti-retaliation provisions and this order. (Doc. 69 at 1-2).
As this Court has noted, in appropriate circumstances it has authority to
limit communication between a defendant employer and existing and potential
plaintiffs in an FLSA collective action. Longcrier v. HL-A Co., 595 F. Supp. 2d
1218, 1226-27 (S.D. Ala. 2008). The standards are the same as those applicable in
the class action context, id., since “[t]he same justifications [for judicial oversight
over communications] apply in the context of” a collective action as a class action.
Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 171 (1989).
Before relief may be ordered, there must first be made a “specific record
showing by the moving party of the particular abuses by which it is threatened.”
Gulf Oil v. Bernard, 452 U.S.89, 102 (1981) (internal quotes omitted). To satisfy
Bernard, “[t]wo kinds of proof are required.” Cox Nuclear Medicine v. Gold Cup
Coffee Services, Inc., 214 F.R.D. 696, 697 (S.D. Ala. 2003). “First, the movant
must show that a particular form of communication has occurred or is threatened
to occur. Second, the movant must show that the particular form of
communication at issue is abusive in that it threatens the proper functioning of the
litigation.” Id. at 697-98. “Abusive practices that have been considered sufficient
to warrant a protective order include communications that coerce prospective class
members into excluding themselves from the litigation ….” Id. at 698.
The parties have submitted affidavits, declarations and other evidence in
support of their respective positions. Neither side requests an evidentiary hearing;
on the contrary, the defendants insist the Court should resolve the instant motion
on the existing record. (Doc. 72 at 9). Therefore, and because the proper
resolution of the instant motion is clear on the existing record, no hearing will be
held. See Ojeda-Sanchez v. Bland Farms, 600 F. Supp. 2d 1373 (S.D. Ga. 2009)
(resolving a similar motion based on affidavits). The Court makes the following
determinations based on the evidentiary materials submitted by the parties.
Angel Santos Wilson is an oyster shucker for the defendants but is not
employed under the H-2B program. He is married to Nanette Wilson, who is
employed by the defendants in the office as executive secretary and who is in
charge of making the annual list of those H-2B workers the defendants will invite
to return to work the next season. Angel is a frequent conveyor of news and
messages from the office to the oyster shuckers.
In May 2015, Angel told several H-2B workers on the defendants’ premises
that defendant Rodney Fox (“Rodney”) wanted them to know they could return to
work under the H-2B program if they withdrew from this lawsuit. One of those
present for this conversation is among the three that have since requested to
withdraw. Another opt-in plaintiff heard co-workers say the defendants were
offering future work in exchange for withdrawing from the lawsuit, and Angel
confirmed to him that this was correct.
Angel denies he told anyone that they would have to ask Rodney for
“forgiveness” or that Rodney had “promised” work for anyone who withdrew
from the lawsuit, but he does not deny making statements indicating that the
defendants were conditioning future work on withdrawal from the lawsuit.
For these and other reasons, the Court finds on this record that the
communications asserted by the plaintiffs’ declarants did occur.
Rodney denies that he spoke directly with any H-2B employees or that he
“directed” Angel to do so, but he does not deny suggesting that Angel do so.
Rodney denies that he and Angel speak a common language well enough for him
to suggest what Angel should say, but he does not deny that Nanette could relay
his position to Angel.1 And although Rodney denies that Angel had any authority,
actual or apparent, to speak for the defendants, he does not deny that Angel often
relates information from the office to the H-2B workers. Nor does Rodney deny
that Angel accurately related his (Rodney’s) position to the H-2B workers. For
these and other reasons,2 the Court finds on this record that Angel spoke with at
least the tacit approval of the defendants.3
As of June 24, 2015, there were only four plaintiffs present at the
defendant’s facility. Three of them, almost immediately after the May
communications discussed above, approached Nanette about how to withdraw
from the lawsuit, and each then took steps to withdraw their consent to participate
in this action. In contrast, out of approximately 20 plaintiffs not onsite (who had
presumably returned to Mexico), none has sought to withdraw consent. And the
plaintiff’s two declarants, who returned to Mexico in May after hearing Angel’s
comments, have expressed concern that remaining in the lawsuit will cost them
and other plaintiffs – all with bleak employment prospects at home – future
employment with the defendant. These facts underscore the plainly coercive
aspect of communications directly linking future employment under the foreign
worker visa program with (non)participation in the lawsuit. Accord Ojeda1
Rodney denies “instruct[ing]” Nanette to convey any message to the H-2B
workers directly or through Angel, but again he does not deny suggesting it.
Almost immediately after Angel’s comments, the girlfriend of one plaintiff
asked Rodney how her boyfriend could get out of the lawsuit, and Rodney advised that he
should send a letter by certified mail to plaintiff’s counsel. That is, Rodney did not
suggest that the plaintiff discuss the issue with his lawyer but instead told him to request
withdrawal, and in a formal, final manner. This may not be improper on its own, but it
does bolster the impression that Angel’s comments were part of a purposeful effort by the
defendants to pry the plaintiffs out of their lawsuit.
The defendants deny that the Bernard test can be satisfied because none of them
spoke directly with the H-2B workers. (Doc. 72 at 5). But they offer no authority for the
improbable proposition that a defendant can sanitize an improper communication by
having it relayed – with full attribution – by a non-defendant.
Sanchez, 600 F. Supp. 2d at 1379 (statements that H-2A class members “would
not be rehired if they participated in litigation … could … be characterized as
abusive and threatening to the litigation”).4
“Abusive practices that have been considered sufficient to warrant a
protective order include … communications that undermine cooperation with or
confidence in class counsel.” Cox Nuclear Medicine, 214 F.R.D. at 697. In their
reply brief, the plaintiffs argue that the role of Rodney in advising how to
withdraw from the lawsuit, and Nanette’s conduct in drafting the withdrawal
letters, addressing them and having them notarized, is independently objectionable
as undermining confidence in class counsel. (Doc. 75 at 4). No such argument
appears in the plaintiffs’ principal brief, even though it was fully available to
them. “District courts, including this one, ordinarily do not consider arguments
raised for the first time on reply.” Gross-Jones v. Mercy Medical, 874 F. Supp. 2d
1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and explaining the underlying
rationale). The plaintiffs identify no reason to depart from this well-established
rule, and the Court declines to do so.
Upon finding the occurrence of abusive communications, the Court “should
[prepare] a carefully drawn order that limits speech as little as possible, consistent
with the rights of the parties under the circumstances.” Bernard, 452 U.S. at 102.
The Court concludes that the plaintiffs’ proposed relief sweeps more broadly than
necessary to remedy the wrong and ensure it is not repeated.
The plaintiffs first seek “a written notice mutually agreed upon by the
Parties to all … Opt-in Plaintiffs and putative class members informing the
workers that Defendants cannot condition future employment on participation in
this lawsuit.” (Doc. 69 at 1). The Court agrees that such a notice is a reasonable –
indeed, modest – request, since such a notice merely counteracts the contrary
The defendants say any coercive tendency dissolves when “relationships and
bonds of friendship” are considered. (Doc. 72 at 5). But a message from the boss that
only those who quit the lawsuit will find future employment does not become less
coercive simply because the messenger is a co-worker.
impression resulting from the defendants’ improper conduct. However, the Court
agrees with the defendants that only those plaintiffs and potential plaintiffs
exposed to the defendants’ conduct need receive such notice, since only they could
have thereby formed a misimpression of the defendants’ authority to condition
employment on withdrawal from the lawsuit. (Doc. 72 at 8).5 The Court
identifies this universe as those plaintiffs and potential opt-in plaintiffs who were
on the defendant’s premises at any time between May 1, 2015 and the date of this
order, whether or not they are still onsite or stateside.6
The plaintiffs next seek an order that the defendants “immediately instruct
their supervisory employees and all other employees and agents who might have
contact with plaintiffs and putative class members of the prohibitions of the
Court’s protective order and the anti-retaliation provisions of” the FLSA. (Doc.
69 at 2). The defendants object that this is unnecessary because some employees
“have no reason or desire to be involved in this lawsuit in any way.” (Doc. 72 at
9). The defendants do not suggest it will be difficult to provide such instruction
and, given their track record, it is appropriate that anyone in a position to repeat or
amplify Angel’s comments to the plaintiffs receive such instruction.7
The plaintiffs offer no evidence – not even from their declarants, both of whom
returned to Mexico in May – that the defendants’ comments have been repeated by them
or others in Mexico. They note that no one opted in after Angel’s comments in early
May, but this does not suggest that his comments are known in Mexico, especially since
no one opted in after March 19, either. (Doc. 56).
Angel’s comments occurred in early May. Any H-2B worker onsite at that time
(the defendants indicate there were fewer than twelve, all living together on campus)
either heard him make the comments or likely heard of the comments secondhand, as did
one of the plaintiffs’ declarants. The same is true of any H-2B workers who have arrived
onsite since early May.
The defendants express no objection to the plaintiffs’ definition of “employees
and agents” as “encompass[ing] all of Defendants’ current employees and agents, and all
persons who have been employees or agents of Defendants and over who [sic]
Defendants might continue to exercise influence or control, notwithstanding whether
such persons are presently employed or engaged.” (Doc. 69 at 2 n.1). Accordingly, that
definition prevails for purposes of this order.
Finally, the plaintiffs seek “expedited discovery on the circumstances
leading up to the requested withdrawal of three opt-in plaintiffs,” including the
depositions of Rodney, Nanette and Angel. (Doc. 69 at 2). This is not for the
purpose of pursuing sanctions or other relief, (Doc. 75 at 8), but as a predicate to
“submit[ting] a fully supported motion to dismiss these Plaintiffs.” (Id. at 9). The
plaintiffs apparently believe they are required by previous Court order to submit
such a fully supported motion. (Doc. 69-1 at 7). They ask the Court to “stay
dismissal” of these plaintiffs pending completion of such discovery. (Doc. 69 at
When the plaintiffs filed a notice that two plaintiffs had expressed their
wish to withdraw their consent, (Doc. 66), the Court advised the plaintiffs that
termination of party status requires a motion, not mere notice. (Doc. 67). While
the Court instructed the plaintiffs to file a fully supported motion “[i]f the[y]
intend to seek the dismissal of the two plaintiffs identified in their notice,” (id.),
the Court did not order the plaintiffs to file such a motion even if they do not seek
such relief. If the plaintiffs do not desire to file such a motion, there can be no
need for the requested discovery as a predicate to filing such a motion.
Moreover, the plaintiffs seek the requested depositions in order to “fully
understand the circumstances surrounding why three Opt-in Plaintiffs are now
seeking dismissal from the lawsuit.” (Doc. 75 at 9). The question that concerns
the plaintiffs is whether these three plaintiffs desire to withdraw consent because
they fear they will lose future employment unless they do so (as Angel’s
comments indicated). But the only persons who know the answer to that question
are the three plaintiffs themselves, not Rodney, Nanette or Angel. The Court will
not order discovery that cannot answer the question posed.
For the reasons set forth above, the plaintiffs’ motion for protective order is
granted in part. The defendants are ordered to provide to all H-2B workers that
were present on the defendants’ premises at any time on or after May 1, 2015 a
written notice, mutually agreed upon by the parties, informing the workers that the
defendants cannot condition future employment on participation in this lawsuit,
with such notice to be served on each recipient on or before August 6, 2015. The
defendants are further ordered to instruct their supervisory employees and all
other employees and agents (as defined in note 7, supra) who might have contact
with the plaintiffs and putative class members of the prohibitions of this order and
the anti-retaliation provisions of the FLSA, such instruction to be accomplished on
or before July 31, 2015. To the extent the plaintiffs seek other or additional relief,
their motion is denied.
DONE and ORDERED this 27th day of July, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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