Echon et al v. Sackett et al

Filing 116

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 106 MOTION for Summary Judgment filed by Justin Echon, Maribel Echon, Esmeraldo Villanueva Echon, Jr. be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 9/20/2017. (Attachments: # 1 - (7) Unpublished case law) (nywlc1)

Does v. Rodriguez, Not Reported in F.Supp.2d (2007)
2007 WL 684117

2007 WL 684117
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
John DOES I–V, Plaintiffs,
v.
Moises RODRIGUEZ, individually, and in his official
capacity, Maria Rodriguez, individually, and in his
official capacity, Andrew L. Grant, individually,
and in his official capacity, and Grant Family
Farms, Inc, a Colorado corporation, Defendants.
Civil Action No. 06–cv–00805–LTB.
|
March 2, 2007.
Attorneys and Law Firms
Patricia L. Medige, Colorado Legal Services, Inc.,
Denver, CO, for Plaintiffs.
Patrick L. Ridley, Ridley, McGreevy & Weisz, PC,
Denver, CO, for Defendants.

Order
LEWIS T. BABCOCK, United States District Chief
Judge.
*1 Defendant Andrew L. Grant (“Grant”) seeks
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6) of claims by plaintiffs John Doe I–V for violations
of the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. §
201 et seq., the Migrant and Seasonal Agricultural Worker
Protection Act (“AWPA”), 29 U.S.C. § 1801 et seq., and
unjust enrichment, all related to plaintiffs' work on the
Grant Family Farms. For the reasons discussed below,
Grant's motion is DENIED.

I. BACKGROUND
The factual background of this case, as described in
plaintiff's first amended complaint, is as follows. Plaintiffs
are migrant agricultural workers, all Mexican nationals,
brought surreptiously into the United States from Mexico
by defendants Moises Rodriguez and Maria Rodriguez
(referred to herein as “contractor defendants”) to work

on Grant Family Farms in Weld County, Colorado. The
contractor defendants are farm labor contractors who
recruit, solicit, hire, transport and house farm laborers to
work on farms in Colorado.
In March of 2004, the contractor defendants recruited
workers in Mexico, including the plaintiffs, to come to
Colorado for farm labor. From approximately April
2004 until October 2004, the plaintiffs worked at a
farm labor camp operated by the contractor defendants
located at 22185 Highway 52, Hudson, CO (the “Highway
52 compound.”) The plaintiffs worked mainly, but not
exclusively, at Grant Family Farms. Plaintiffs contend
that the contractor defendants had a long-standing
business relationship with Grant Family Farms and had
been providing them with farm labor in this manner for
several years. The plaintiffs describe the conditions at
the Highway 52 compound as unsanitary, lacking safe
drinking water, without sufficient toilets and showers,
infected by insects and overcrowded. Plaintiffs also
allege that their circumstances were tantamount to debt
peonage, since they were informed upon their arrival that
they owed the contractor defendants $1,300 in smuggling
fees and could not end their employment until they repaid
this putative debt.
Plaintiffs state that they worked long hours, from 4:30
am to 8:00pm, inclusive of travel time to the farm, and
their work on Grant Family Farms was “backbreaking”
work weeding the fields, since the Grant Family farm
did not use pesticides. Plaintiffs contend that they were
under constant surveillance by Moises Rodriguez and
farm foremen, to prevent them from leaving the farm
and to maintain the pace and intensity of their work.
Moises Rodriguez patrolled the perimeter of the farm to
prevent escapes, and also tried to intimidate the workers
by discharging a firearm and by stating he would find them
if they tried to escape.
The contractor defendants made numerous deductions
from the workers' twice monthly pay. These included rent
charges of $50 twice per month, transportation charges
of $48 twice per month, charges for bathroom cleaning,
deposits for rain gear, farming tools and payments for fees
owed for smuggling them into the country. The contractor
defendants deducted social security payments from the
workers, even though the workers did not have social
security numbers. The contractor defendants charged the
workers check cashing fees of 1%. Cumulatively, this

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2007 WL 684117

meant that the workers were paid much less than the $5.15/
hour minimum wage, and some weeks were paid as little
as $2.90/hour for a sixty hour work week.
*2 Grant Family Farms, located in Wellington,
Colorado, was incorporated in Colorado on May 5, 1998.
Grant is the company's registered agent and serves as
the company's President. The plaintiffs allege that Grant
made all of the essential business decisions regarding the
farm, including what to plant, where to plant and when
to harvest. Grant owned all of the tools and materials,
and directly supervised the contractors, either personally
or through intermediary foremen. Grant also bore all of
the financial risks of the farm operations.
The plaintiff workers ultimately escaped from the camp.
An investigation ensued that led to the indictment,
conviction and sentencing of the contractor defendants,
as well as other defendants not a party to this case, for
transporting and harboring illegal aliens in violation of
8 U.S.C. §§ 1324(a)(1)(A)(ii) & (iii). On April 26, 2006
the plaintiffs brought claims for violations of the FLSA
against all defendants, violations of the AWPA against
all defendants, violations of the Racketeer Influenced
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et
seq., against the contractor defendants, violations of the
Trafficking Victims Protection Reauthorization Act, 18
U.S.C. §§ 1589 & 1590, against the contractor defendants,
and unjust enrichment against Grant and the Grant
Family Farms. Grant moves to dismiss the FLSA, AWPA
and unjust enrichment claims against him under Fed R.
Civ. P. 12(b)(6) for failure to state a claim.

II. STANDARD OF REVIEW
Under Fed.R.Civ.P. 12(b)(6), a district court may dismiss
a complaint for failure to state a claim upon which relief
can be granted if it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which
would entitle him to relief. See Conley v. Gibson, 355
U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If
the plaintiff has pled facts that would support a legally
cognizable claim for relief, a motion to dismiss should be
denied. See id. In evaluating a 12(b)(6) motion to dismiss,
I “accept the factual allegations in the complaint as true”
and I “resolve all reasonable inferences in the plaintiff's
favor.” Morse v. Regents of University of Colorado, 154
F.3d 1124,1126–1127 (10th Cir.1998). “Dismissal under

Rule 12(b)(6) is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal
rules of pleadings but also to protect the interests of
justice.” Id. at 1127. Nonetheless, in a Rule 12(b)(6)
motion I consider well-pleaded facts, “as distinguished
from conclusory allegations.” Swanson v. Bixler, 750 F.2d
810, 813 (10th Cir.1984).
I construe Fed.R.Civ.P. 12(b)(6) in conjunction with
Fed. R. Civ. P 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” The statement need not contain detailed
facts, but it must “give the defendant fair notice of what
the plaintiff's claim is and the grounds upon which it
rests.” Conley 335 U.S. at 47. “Rule 8(a) established a
pleading standard without regard to whether a claim will
succeed on the merits.” Swierkiewicz v. Soreman N.A.,
534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
“Claims lacking merit maybe dealt with through summary
judgment under Rule 56.” Id. at 514.

III. DISCUSSION
A. Individual Liability Under the Fair Labor Standards
Act
*3 Grant argues that plaintiffs' FLSA claims must be
dismissed because they have failed to allege specific facts
showing that he is personally liable under the FLSA.
Congress did not intend the FLSA to lightly disregard the
shield from personal liability provided by doing business
in a corporate form. Baystate Alternative Staffing, Inc.
v. Herman, 163 F.3d 668, 677 (1st Cir.1998). The FLSA
does not impose personal liability on “any supervisory
employee, even though without any control over the
corporation's payroll .. for the unpaid or deficient wages
of other employees.” Id. Nor does the FLSA make liable
“any corporate officer or other employee with operational
control over payroll matters.” Id. However, because
the FLSA does ultimate “transcend traditional common
law parameters of the employer-employee relationship”
individual liability under the FLSA can attach to
corporate officers based on such factors as
“the significant ownership interest
of the corporate officers; their
operational control of significant
aspects of the corporation's
day to day functions, including

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2007 WL 684117

compensation of employees; and
the fact that they personally made
decisions to continue operating the
business despite financial adversity
and the company's inability to
fulfill its statutory obligations to its
employees.”
Id. at 677678.
While Grant argues that the complaint does not meet this
test, he overstates the plaintiffs' burden at this stage of
the case, and understates the specificity of their complaint.
Plaintiffs allege that Grant is the sole owner of the farm
where the workers did most of their work, that he had
operational control of the business, and that he was aware
of the illegal deductions from the workers' pay. These
allegations are sufficient to place Grant on notice of
the claims against him. The plaintiffs have satisfied their
pleading obligations under Rule 8(a) and Grant's motion
fails.

B. Employer Status Under the FLSA and the AWPA
Grant also argues that plaintiffs have failed to allege
facts sufficient to show that he is an employer under
the FLSA or the AWPA, requiring dismissal of both
claims. The FLSA defines an employer as “any person
acting directly or indirectly in the interest of an employer
in relation to an employee ...” 29 U.S.C. § 203(d).
The FLSA broadens the definitions of employer and
employee beyond “strict application of traditional agency
principles.” Baker v. Flint Engineering & Const. Co.,
137 F.3d 1436, 1440 (10th Cir.1998). The FLSA focuses
instead on “the economic realities of the relationship”
between the employee and the employer, and includes
evaluating such factors as “whether the alleged employer
has the power to hire and fire employees, supervises
and controls employee work schedules or conditions of
employment, determines the rate and method of payment,
and maintains employment records.” Id. Employer status
in the food growing industry under the FLSA “must be
determined from the relationships in this industry and
from a consideration of the facts and circumstances under
which pickers are employed.” Mitchell v. Hertzke, 234
F.2d 183, 189 (10th Cir.1956). The AWPA generally relies
on the same definition of employer and employee as the
FLSA. 29 C.F.R. § 500.20(h).

*4 The FLSA and the AWPA provide two routes to
liability relevant to this case. First, an employer-grower,
like Grant, may be liable directly as an employer if
the contractor it relies on is itself legally an employee
of the grower. In such an instance, the workers in the
contractor's crew are also the grower's employees. 29
C.F.R. § 500.20(h). Determining whether a farm labor
contractor is a grower's employee or contractor is based
on “an evaluation of all of the circumstances,” including
the following factors:
“(i) The nature and degree of
putative employer's control as
to the manner in which the
work is performed; (ii) The
putative employee's opportunity
for profit or loss depending upon
his/her managerial skill;(iii) The
putative employee's investment
in equipment or materials
required for the task, or the
putative employee's employment
of other workers; (iv)Whether the
services rendered by the putative
employee require special skill;
(v) The degree of permanency
and duration of the working
relationship; (vi) The extent to
which the services rendered by the
putative employee are an integral
part of the putative employer's
business.
29 C.F.R. § 500.20(h)(4).
Second, if a contractor is legally a grower's contractor,
and not a grower's employee, the grower may still be an
employer of the contractor's workers as a joint employer.
29 C.F.R. § 500.20(h)(5). Joint employer status considers
“all the facts in the particular case,” and whether “two
or more persons are completely disassociated with respect
to the employment of a particular employee.” Id. Several
factors serve as “analytic tools” in determining joint
employer status, including: whether the grower has the
power, “either alone or through control of the farm labor
contractor to direct, control or supervise the workers or
the work performed,” whether the grower has the power
to hire, fire, direct the work or modify work conditions,
the degree of permanence of the relationship of the parties,
the level of skill of the workers, the importance of the

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2007 WL 684117

services provided by the workers to the overall business
operation of the grower, whether the work is performed
on the grower's premises and whether the grower is
responsible for activities normally done by employers,
such as payroll records, issuing pay stubs and providing
tools and equipment. 29 C.F.R. § 500.20(h)(5)(iv)(A)-(G).
Grant argues, in relation to the FSLA and the AWPA
claims, that the plaintiffs have not alleged facts sufficient
to satisfy the legal tests enunciated in the federal
regulations. (Grant disputes the legal test for joint
employment articulated by plaintiffs, but their test is
based on the current version of the federal regulations,
while Grant cites to a version of the regulations, and
to interpretive case law, that pre-date 1997 revisions
in federal regulations. See 62 Fed.Reg. 11747, March
12, 1997.) Grant contends that the allegations in the
complaint are too vague to show that he exercised the
control necessary to be an employer under the FLSA,
and that in fact the complaint describes the contractors
as performing the specific functions that define employer
status, including handling payroll, providing the workers
with tools, recruiting the workers and providing them
their daily oversight. Grant points out that the complaint
even states that the workers performed at least some of
their work on lands not owned or leased by Grant.
*5 However, the complaint also makes numerous
allegations that, if true, satisfies the legal definitions
of employer or joint employer. Plaintiffs allege that
Grant had day to day operational control of the
business (Compl.¶ 44), that Grant oversaw the foremen
(Compl.¶ 45), that the contractors regularly consulted
with Grant in the course of the work day (Compl.¶ 81),
that the contractors acted at the direction of or under
the supervision of the growers (Compl.¶ 82), that the
growers knew of, condoned and benefitted from the illegal
deductions from the workers' pay, (Compl.¶ 96) and knew
of, willfully ignored and condoned abuse of the workers.
(Compl.¶ 104). These allegations, while general to some
degree, are sufficient to put Grant on notice of the nature
of the plaintiffs' claim. See Conley, 335 U.S. at 47.
While Grant cites to some authority supporting his
general argument relating to the level of proof necessary
in AWPA and FLSA claims, these cases were decided on
summary judgment, with a much fuller factual record.
See Aimable v. Long and Scott Farms, 20 F.3d 434 (11th
Cir.1994) and Martinez–Mendoza v. Champion Int'l Corp.,

340 F.3d 1200 (11th Cir.2003). Grant does not point me
to any cases dismissing under Rule 12 an FLSA or AWPA
claim with this level of detail. At this stage of the case I
cannot say that plaintiffs can prove no set of facts that
would show that Grant was an employer under the FLSA.
Grant's motion to dismiss fails.

C. Unjust Enrichment
Grant moves to dismiss plaintiffs' claim for unjust
enrichment. To recover for unjust enrichment, plaintiffs
must show that “(1) a benefit was conferred on the
defendant by the plaintiff; (2) the benefit was appreciated
by the defendant; and (3) the benefit was accepted by
the defendant under such circumstances that it would
be inequitable for it to be retained without payment of
its value.” Humphrey v. O'Connor, 940 P.2d 1015, 1021
(Colo.Ct.App.1996). “The scope of this remedy is broad ...
with its application guided by the underlying principle of
avoiding the unjust enrichment of one party at the expense
of another.” Id.
Grant argues that plaintiffs have not stated a claim for
unjust enrichment because Grant paid the contractor
defendants for plaintiffs' labor. However, the mere fact
that Grant paid the contractors does not ineluctably lead
to dismissal of this claim. In Humphrey, the plaintiffs
alleged only that the defendant “has accepted and
appreciated” plaintiff's overpayment and that “it would be
unfair, unjust and inequitable for (defendant) to retain the
amount by which (plaintiff) overpaid.” Id. at 1021–1022.
The court found this language, far more sparse and less
detailed than the language in plaintiff's complaint here, to
be sufficient to state a claim for unjust enrichment. Id. at
1022. The Court also reasoned that the mere fact that there
was a mutual benefit to the parties did not obviate the
unjust enrichment claim. Id. Considering the complaint in
the light most favorable to the plaintiffs, as the Court did
in Humphrey and as I must do here, it is significant that
plaintiffs allege that Grant was aware of the contractor's
illegal deductions from their pay, and that Grant ran the
day to day operations of the farm, including oversight of
the contractors. I cannot say that plaintiffs can prove no
set of facts showing that Grant's acceptance of their labor
under these conditions was unjust or inequitable. Grant's
motion to dismiss the unjust enrichment claim fails.
*6 It is so Ordered that

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Does v. Rodriguez, Not Reported in F.Supp.2d (2007)
2007 WL 684117

Defendant's motion to dismiss plaintiff's first amended
complaint (Docket # 9) is DENIED.

All Citations
Not Reported in F.Supp.2d, 2007 WL 684117

DONE and ORDERED.
End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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