Lorenzo-Zamorano et al v. Overlook Harvesting Company, LLC et al
Filing
36
OPINION AND ORDER denying 24 Motion to certify class; accepting in part, adopting in part, and rejecting in part 30 Report and Recommendations. See Opinion and Order for details. Signed by Judge John E. Steele on 9/14/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALEJANDRO LORENZO-ZAMORANO, CARLOS
GUMARO BONILLA-HERNANDEZ, FERNANDO
CRUZ-MAQUEDA, MANUEL CRUS-SANTIAGO,
EUGES HERNANDEZ-GONZALEZ, RIGOBERTO
JUAREZ-MELAGAREJO, JOSE LUIS LOPEZHERNANDEZ, MARTIN, LOPEZ-HERNANDEZ,
ISRAEL LOPEZ-ZAMORA, JOSE LORENZOZAMORANO, FELICIANO ORTIZ-MAQUEDA,
GABRIEL REYES-MARTINEZ, MARCELINO
ZAMORANO-MARTIN, MIGUEL ZAVALETATEJEDA, individually and on behalf
of all other persons similarly
situated,
Plaintiffs,
vs.
Case No.
OVERLOOK HARVESTING COMPANY,
BENTLEY BROTHERS, INC.,
2:10-cv-657-FtM-29DNF
LLC,
Defendants.
___________________________________
OPINION AND ORDER
On August 9, 2011, United States Magistrate Judge Douglas N.
Frazier submitted a Report and Recommendation (doc. #30) to the
Court recommending that plaintiff’s Motion for Declaration of a
Class Action (doc. #24) be granted.
Defendants filed Objections
(doc. #31), to which plaintiffs filed a Response (doc. #34).
For
the reasons set forth below, the Court adopts the Report and
Recommendation
certification.
in
part
but
denies
the
motion
for
class
I.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
to
which
objection
is
made.”
28
U.S.C.
§
636(b)(1)(C); see also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
Jeffrey S. v. State Bd. of
Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th
Cong., § 2 (1976)).
The district judge reviews legal conclusions
de novo, even in the absence of an objection.
See Cooper-Houston
v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
II.
This matter is before the Court on a three-count Complaint
(doc.
#1)
filed
by
fourteen
nonimmigrant
alien
workers
who
participated as H-2A workers1 harvesting citrus for defendant
Overlook Harvesting Co., LLC (Overlook Harvesting) during the 200708 and/or the 2008-09 Florida citrus harvests.
1
Count I alleges
See Arriaga v. Fla. Pac. Farms, LLC, 305 F.3d 1228, 1332-33
(11th Cir. 2002) for an overview of the H-2A program.
-2-
that defendants violated the Fair Labor Standards Act by: (1)
failing to pay plaintiffs the required minimum wage for every
compensable hour of labor performed during the two harvests; (2)
failing to supplement plaintiffs’ piece-rate earnings so as to
raise their wages to a rate equal to or exceeding the minimum wage;
(3) failing to credit plaintiffs with all compensable hours worked,
including time each spent watching an instructional videotape
relating
to
their
jobs;
and
(4)
failing
to
fully
reimburse
plaintiffs for expenses incurred primarily for the benefit of
defendants.
Count II alleges that defendants breached employment
contracts which were embodied in the H-2A clearance orders by
providing terms and conditions of employment that were materially
different from those described in the clearance orders, including:
(1) not providing picking sacks at no cost; (2) not paying at least
the applicable adverse effect wage rate; (3) not paying the Florida
minimum wage for each hour employed; (4) not providing inbound
transportation and subsistence expenses as required by federal
regulations;
(5)
not
maintaining
payroll
records
accurately
recording the hours worked; and (6) furnishing wage statements
which did not accurately show the number of hours actually worked
and the number of tubs harvested and omitting data as to the
numbers of hours offered.
breached
the
Florida
Count III alleges that defendants
Minimum
Wage
Provisions
of
the
Florida
Constitution by: (1) failing to pay plaintiffs the required minimum
-3-
wage for every compensable hour of labor performed during the two
harvests; (2) failing to supplement plaintiffs’ piece-rate earnings
so as to raise their wages to a rate equal to or exceeding the
minimum wage; (3) failing to credit plaintiffs with all compensable
hours worked, including time each spent watching an instructional
videotape
relating
to
their
jobs;
and
(4)
failing
to
fully
reimburse plaintiffs for expenses incurred and facilities primarily
benefitting defendants.
Plaintiffs seek class certification as to
Counts II and III.
The Report and Recommendation accurately and without objection
sets forth the underlying facts, the status of a related case filed
in the Tampa Division, and the applicable law concerning class
certification.
The Court adopts these portions of the Report and
Recommendation without further comment.
Defendants do not dispute
that the requirements of Federal Rule of Civil Procedure 23(a) have
been satisfied, as set forth in the Report and Recommendation, and
the Court agrees that the requirements of Rule 23(a) have been
satisfied.
Defendants
do
object,
however,
to
the
Report
and
Recommendation’s analysis of Rule 23(b)(3), which provides that a
class may be maintained if “the court finds that the questions of
law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
-4-
adjudicating
the
controversy.”
Fed.
R.
Civ.
P.
23(b)(3).
Defendants argue that the magistrate judge was required to perform
a
“rigorous
analysis”
of
the
predominance
and
superiority
requirements, Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th
Cir. 2009) (“A district court must conduct a rigorous analysis of
the rule 23 prerequisites before certifying a class.” (citation
omitted)), but failed to do so. When properly analyzed, defendants
assert that the claims in Counts II and III require individualized
proof that will predominate over any arguable class-wide claims.
The Court agrees with defendant’s objection that the Report
and Recommendation is not sufficiently detailed in its analysis of
predominance and superiority. Therefore, the Court will supplement
the Report and Recommendation with its analysis of these issues,
set forth below.
A.
Predominance of Common Issues of Fact and Law:
The Eleventh Circuit has recently summarized the predominance
principles as follows:
Whether an issue predominates can only be determined
after considering what value the resolution of the
class-wide issue will have in each class member's
underlying cause of action. Common issues of fact and
law predominate if they have a direct impact on every
class member's effort to establish liability that is more
substantial than the impact of individualized issues in
resolving the claim or claims of each class member. If
after adjudication of the classwide issues, plaintiffs
must still introduce a great deal of individualized proof
or argue a number of individualized legal points to
establish most or all of the elements of their individual
claims, [their] claims are not suitable for class
certification under Rule 23(b)(3). In practical terms,
-5-
while it is not necessary that all questions of fact or
law be common, the addition or subtraction of any of the
plaintiffs to or from the class [should not] have a
substantial effect on the substance or quantity of
evidence offered.
To assess the impact of a common question on the
class members' claims, a district court obviously must
examine not only the defendant's course of conduct
towards the class members, but also the class members'
legal rights and duties. A plaintiff may claim that every
putative class member was harmed by the defendant's
conduct, but if fewer than all of the class members
enjoyed the legal right that the defendant allegedly
infringed, or if the defendant has non-frivolous defenses
to liability that are unique to individual class members,
any common questions may well be submerged by individual
ones. This principle emerges clearly from our case law
and that of other circuits. See, e.g., Vega, 564 F.3d at
1272 (“Without the existence of a common contract, of
course, there can also be no commonality with respect to
whether T-Mobile's conduct ..., even if undertaken
pursuant to a uniform policy, constituted a breach of
every class member's particular employment contract.”);
Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326-29 (5th
Cir.2008) (reversing class certification predicated on
defendant's “common course of conduct, fax blasting,”
where the district court “did not explain how th[is]
common course of conduct ... would affect a trial on the
merits,” and where a trial in fact would require
individualized proof as to whether each class member had
consented to receipt of faxes); Broussard v. Meineke
Disc. Muffler Shops, Inc., 155 F.3d 331, 340 (4th
Cir.1998) (reversing certification based on defendant's
alleged breach of franchising agreements, where the
agreements variously supported or undermined the
plaintiffs' theory of liability); Sprague v. Gen. Motors
Corp., 133 F.3d 388, 398 (6th Cir.1998) (en banc)
(reversing certification of claim by General Motors
retirees that company breached their contracts by
reducing their benefits at the same time and in the same
manner, where each “contract” arose from an individual
“side deal” with the company).
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare
Servs., Inc., 601 F.3d 1159, 1170-71 (11th Cir. 2010)(internal
-6-
citations and quotation marks omitted).
To determine whether
common questions of law or fact predominate, the Court is required
to examine the elements of the causes of actions set forth in the
Complaint.
Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct.
2179, 2184 (2011); Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d
1248, 1260 (11th Cir. 2003).
(1) Breach of Contract - Count II:
“For a breach of contract claim, Florida law requires the
plaintiff to plead and establish: (1) the existence of a contract;
(2) a material breach of that contract; and (3) damages resulting
from the breach.”
Vega, 564 F.3d at 1272.
The existence of a
contract is not at issue in this case, and the contract consists of
the “clearance orders”2 which apply to all putative class members.
The contract is therefore identical for all plaintiffs and putative
class members, a situation which “best facilitates,” Sacred Heart
Health Sys., 601 F.3d at 1171, but does not guarantee class
certification.
Sacred Heart Health Sys., 601 F.3d at 1176-77.
There are six alleged breaches of the contract, some of which
are common and easily applicable to all putative class members.
Thus, whether defendants were required to provide picking sacks at
no cost, or provide inbound transportation and subsistence expenses
as
required
by
federal
regulations,
are
common
issues
resolution is applicable to all putative plaintiffs.
2
Arriaga, 305 F.3d at 1233 n.5.
-7-
whose
The other
four alleged
breaches,
however,
involve
highly
individualized
consideration of facts unique to each putative plaintiff.
Thus,
while it is clear that defendants must pay at least the applicable
adverse effect wage rate and the Florida minimum wage for each hour
employed, whether defendants did so requires an examination of the
individual
plaintiff’s
work
hours,
productivity,
and
records.
Similarly, while the requirement that defendants must maintain
payroll records accurately recording the hours worked applies to
all putative plaintiffs, whether defendants did so requires an
individualized
examination
individual plaintiffs.
of
the
records
as
they
relate
to
Finally, whether defendants furnished wage
statements which did not accurately show the number of hours worked
and the number of tubs harvested, and omitted data as to the
numbers
of
hours
offered,
also
involves
an
individualized
examination of the facts related to each putative plaintiff.
The third element of the breach of contract claim is damages.
“Individualized damages issues are of course least likely to defeat
predominance ‘where damages can be computed according to some
formula,
statistical
mechanical methods.’”
analysis,
or
other
or
essentially
Sacred Heart Health Sys., 601 F.3d at 1179
(internal quotation and citation omitted).
apparent in this case.
easy
No such device is
Here, the Complaint seeks actual damages
and the individual circumstances of each putative plaintiff would
need to be considered.
-8-
To determine the issues of breach and damages will require
analysis of weekly work records for each putative plaintiff.
Defendants proffered that for the 2007-08 harvest season, it
employed 329 persons for a 31-week season; for the 2008-09 harvest
season, it employed 355 persons for a 32-week season.
Plaintiffs
were paid a piece-rate for citrus harvested, and worked at various
groves where the piece-rates were different.
The volume of citrus
each
is
worker
harvested
each
day
and
week
material
to
the
calculation of whether he or she was paid at the proper hourly
rate.
Individualized consideration is required for most of the
issues related to breach of contract and resulting damages.
(2) Florida Minimum Wage - Count III:
As noted earlier, Count III alleges that defendants breached
the Florida Minimum Wage Provisions of the Florida Constitution by:
(1) failing to pay plaintiffs the required minimum wage for every
compensable hour of labor performed during the two harvests; (2)
failing to supplement plaintiffs’ piece-rate earnings so as to
raise their wages to a rate equal to or exceeding the minimum wage;
(3) failing to credit plaintiffs with all compensable hours worked,
including time each spent watching an instructional videotape
relating
to
their
jobs;
and
(4)
failing
to
fully
reimburse
plaintiffs for expenses incurred primarily for the benefit of
defendants.
These four alleged violations are virtually identical
to the alleged violations in the Fair Labor Standards Act claim in
-9-
Count I.
Count III clearly requires an examination of every
compensable hour of labor performed by each individual, and an
individualized calculation of whether a supplementation of the
individual’s piece-rate earnings was necessary. While the issue of
whether watching an instructional videotape is compensable is
common to all plaintiffs, the Complaint does not limit the failure
to credit plaintiffs with all compensable hours worked to that
event.
Additionally, failing to reimburse plaintiffs for expenses
incurred requires an individual examination of the expenses for
each plaintiff to determine what the expenses were for and the
amount of the expenses.
Defendants’ proffer as to the two seasons
applies equally to the claims in Count III.
In sum, the Court finds that there are indeed some issues of
fact and law which are common to all putative plaintiffs.
The
Court finds, however, that the remaining individualized issues
predominate over the common issues.
B.
Superiority of Class Action:
The
second
prong
of
Rule
23(b)(3)
requires
a
court
to
determine whether “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3).
The focus of this analysis is on “the
relative advantages of a class action suit over whatever other
forms
of
litigation
plaintiffs.”
might
be
realistically
available
to
the
Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir.
-10-
2004).
The predominance analysis has a “tremendous impact on the
superiority analysis ... for the simple reason that, the more
common
issues
desirable
a
predominate
class
action
over
individual
lawsuit
will
adjudicating the plaintiffs' claims.”
be
Id.
issues,
as
a
the
vehicle
more
for
The converse is also
true: the less common the issues, the less desirable a class action
will be as a vehicle for resolving them. Sacred Heart Health Sys.,
601 F.3d at 1183-84.
Because the Court must determine on an
individual basis whether there were breaches of the contract with
regard to payment of wages and because the Court is unable to do so
on a class-wide basis or with a relatively simple methodology, a
class action is not a superior proceeding.
After reviewing the Report and Recommendation, the Court will
adopt those portions set forth above. The Court declines to accept
the
recommendation
of
class
certification
in
the
Report
and
Recommendation, and based upon the Court’s supplementation set
forth
above,
finds
that
plaintiffs
have
not
satisfied
the
requirements of Rule 23(b)(3).
Accordingly, it is now
ORDERED:
1.
The Magistrate Judge’s Report and Recommendation (Doc. #
30) is accepted and adopted in part and rejected in part, as set
forth above.
-11-
2. Plaintiff’s Motion for Declaration of a Class Action (Doc.
#24) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2011.
Copies:
Magistrate Judge
Counsel of Record
DCCD
-12-
14th
day of
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