Perez v. Bland Farms Production & Packing, LLC et al

Filing 66

ORDER denying Plaintiff's 28 Motion for Summary Judgment; denying Defendant's 34 Motion to Amend; denying Defendant's 36 Motion for Summary Judgment; and stating that this case will proceed to a bench trial. Signed by Judge J. Randal Hall on 3/16/2016. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

THOMAS E. PEREZ,
Secretary of Labor,

*
*

United States Department of

*

Labor,

*

Plaintiff,

*
*

v.

*

CV

614-053

*

BLAND

FARMS

PRODUCTION

&

*

PACKING, LLC and
DELBERT BLAND, an individual,

*
*
*

Defendants.

*

ORDER

Currently
Plaintiff's
Defendants'

before

motion
motion

the

for
to

Court

summary

amend

are

three

judgment

(doc.

34);

motions:

(doc.

and

(3)

28);

(1)
(2)

Defendants'

motion for summary judgment (doc. 36).

I.
This

is

a

case

Factual Background1
about

Vidalia

Onions.

During

the

time

relevant to this litigation,2 Bland Farms Production and Packing,

1 Unless otherwise noted, background facts in this case come from the
parties' statements of undisputed facts.
(Docs. 28-1, 35.)

2 The years relevant to this litigation are the 2011-2012 onion season,
the 2012-2013 onion season, the 2013-2014 onion season,

onion season.

However,

and the 2014-2015

with respect to the 2014-2015 season,

discovery in

LLC3

("Bland Farms")

Vidalia

then

Onions

packed

on

land

those

packing shed,

grew approximately 1,500-2,100
it

either

onions

in

its

the

period

onions

grew

for

Pittman;

(3)

Herndon;

(6)

Beasley;

(9)

Nail;

and

relevant

packing

Gregorio

Morgan

(12)

Ty

to

this
(1)

Tlacuatl;

Ashley Day;

(7)

Kight;

Powell

Omar

included

chemical application.

(4)

independent growers'

growers

discretion.

(10)

Bland

harvests.

Farms

And,

the

same

land owned or

twelve

Smith.

Cruz,

growers

McLeod;

(2)

Jerry

Brett

Williams;

(5)

Bruce

(8)

Jamie

Billy

Burch;

Through

(11)

its

Jasper

Dirk

agronomist

and

Bland Farms provided input

and

instructions

For example,

regarding

Cruz's

fertilizer

and

For some growers he also participated in

fields,

permitted
Bland

Farms

Ronnie

Farms

Cruz frequently visited the

and in virtually

Cruz
also

to

enter

frequently

teams to inspect the onions as they grew.

years,

In

Mike and Travis Collins;

seed selection prior to planting.

the

shed.

litigation,

and instruction to the independent growers.

often

Bland

of

who grew onions for Bland Farms.

Farms:

Bland

production director,

input

leased.

Bland Farms packed onions grown on

leased by other onion growers,

During

owned or

acres

assisted

some

in 2014 and 2015,

of the

the
sent

every

instance,

fields

at

his

quality-control

Furthermore,

growers

in some

with their

Bland Farms assisted all of

this matter ended before harvesting and packing had concluded.

Accordingly,

the parties stipulated that any rulings by the Court will be binding with
respect to that season.

(Doc. 27.)

3 Bland Farms Packing and Production, LLC is a subsidiary or Bland
Farms, LLC, which is owned by Delbert Bland. Bland Farms, LLC is not a party
to this litigation.

the growers with their harvests.

Every independent grower grew

onions exclusively for Bland Farms.

Bland Farms did not pay

these employees overtime for that work.

II.

In
Farms'

Bland

2013,

the Department of

Labor began investigating Bland

labor practices with respect to overtime compensation for

Farms'

packing-shed

Thomas

Perez,

claims

that

Labor

Procedural Background

Secretary
Bland

Standards

employees

employees.
of

Farms

Act

overtime

Labor,

and

by

the

May

initiated

Delbert

("FLSA")

during

In

Bland

this

Plaintiff
action

violated

not

paying

periods

in

onions grown by the independent growers.

2014,

its

Fair

packing-shed

which

(Doc.

the

and

they

1.)

packed

Plaintiff

seeks to enjoin Defendants from violating the FLSA and requests

back wages

and

liquidated

among other things,

damages.

Defendants

claim that the employees

answered

were

exempt

and,
from

the FLSA and raised a good-faith defense pursuant to 29 U.S.C.
§ 260.

Plaintiff now moves

for summary judgment on its

claims

against Bland Farms.

Defendants move to amend their answer and

assert

good-faith defense

an additional

§ 259.

Defendants

to Bland Farms'
defenses,

also move

for

pursuant

to

29 U.S.C.

summary judgment with respect

alleged violation of the FLSA,

and Delbert Bland's personal liability.

both good-faith

III.

Summary
genuine

dispute

entitled
56(a).
the

judgment

to

under

the

party,

in

appropriate

any

as

the

a

material
matter

in

[its]

only
fact

of

if
and

law."

(1986),

substantive

U.S.

242,

light

Elec.

favor."

1437

477

the

Matsushita
587

governing

Inc.,

facts

574,

1428,

to

judgment

Liberty Lobby,

U.S.

is

"there

Fed.

no

movant

the

is

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

view

as

Legal Standards

most

Indus.

Co.

248

law.

(1986).

favorable

v.

v.

The

to

Zenith

Anderson

Court must

the

non-moving

Radio

Corp.,

475

and must draw "all justifiable inferences

U.S.

(11th Cir.

v.

1991)

Four Parcels of

(en banc)

Real

Prop.,

941

F.2d

(internal punctuation and

citations omitted).

The

Court,
motion.

by

moving

party

reference
Celotex

has

the

initial

to materials

Corp.

v.

Catrett,

burden

on file,
477

U.S.

of

showing

the basis
317,

323

the

for the
(1986).

How to carry this burden depends on who bears the burden of

proof at trial.
1115 (11th Cir.

Fitzpatrick v.
1993) .

City of Atlanta,

2 F.3d 1112,

When the non-movant has the burden of

proof at trial, the movant may carry the initial burden in one
of two ways—by negating an essential element of the non-movant's
case or by showing that there is no evidence to prove a fact

necessary to the non-movant's case.
Inc., 929 F.2d 604,

See Clark v. Coats & Clark,

606-08 (11th Cir. 1991)

(explaining Adickes

v.

S.H.

Kress

Catrett,

the

477

U.S.

398

317

U.S.

144

(1986)).

(1970)

Before

there

the movant

are

entitled

no
to

Columbus,

has

met

genuine

issues

judgment

120

F.3d

conclusory

its

as

248,

a
254

statement

burden

material

matter

of

the

burden at trial is insufficient.

If—and only if—the movant

of

fact

law.

(11th Cir.

that

Court

and

Jones

1997)

(per

non-movant

there

is

indeed

summary judgment."

proof at trial,

a

Clark,

Id.

showing that
that

is

City

v.

it

of

curiam).

meet

A

the

929 F.2d at 608.

carries

material

evaluate

cannot

its

initial burden,

non-movant may avoid summary judgment only by
that

can

v.

it must first consider

initial

of

and Celotex Corp.

the

non-movant's response in opposition,

whether

mere

& Co.,

issue

of

the

"demonstrat[ing]

fact

that

precludes

When the non-movant bears the burden of

the non-movant must tailor its response to the

method by which the movant carried its initial burden.

If the

movant presents evidence affirmatively negating a material fact,
the

non-movant

withstand

a

"must

directed

respond
verdict

fact sought to be negated."

with

motion

evidence
at

trial

on

the

to

material

2 F.3d at 1116.

If

the movant shows an absence of evidence on a material fact,

the

non-movant

must

either

show

Fitzpatrick,

sufficient

that

the

record

contains

evidence

that was "overlooked or ignored" by the movant or "come forward
with

additional

verdict

motion

evidence

at

trial

sufficient

based

on

to

the

withstand

alleged

a

directed

evidentiary

deficiency."

Id.

at 1117.

The non-movant

cannot carry its

burden by relying on the pleadings or by repeating

conclusory

allegations contained in the complaint.

See Morris v. Ross,

F.2d

Rather,

1032,

1033-34

(11th

Cir.

1981).

the

663

non-movant

must respond with affidavits or as otherwise provided by Federal
Rule

of Civil

Procedure

In

action,

this

56.

the

Clerk

of

the

Court

gave

the

parties

notice of the motions

for summary judgment and informed them of

the

rules,

summary

judgment

other materials

in opposition,

(Docs. 41, 42.)

v. Wainwright,
are satisfied.

the

Therefore,

right

to

file

affidavits

or

and the consequences of default.

the notice requirements of Griffith

772 F.2d 822, 825 (11th Cir. 1985)

(per curiam),

The time for filing materials in opposition has

expired, and the motions are now ripe for consideration.
Additionally,

as discussed more thoroughly below,

a motion

to amend is governed by Federal Rule of Civil of Procedure 15,
and

courts

However,

the

appropriate.

generally

Court

freely

has

See Fla.

grant

discretion

Evergreen

leave

to

Foliage

when

deny

v.

necessary.

leave

E.I.

DuPont

Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006).
a

motion

to

amend

is

filed

outside

the

deadline

when

set

De

And when
by

the

Court's scheduling order, the moving party must demonstrate good
cause to amend the scheduling order.

Fed. R. Civ. P. 16.

IV.

1.

Defendants'

Motion to Amend

On August 14, 2015,
case,

Discussion

Defendants

moved

additional

defense,

Department

of

the filing deadline for motions in this
to

Labor.

their

they base

which

amend

on

Because

answer

a

1985

Defendants'

to

assert

letter

request

to

outside the date set in the Court's scheduling order,

from the
amend

amend

P. 16.

were

Pursuant to the scheduling order,

due

October

3,

2014.

(Doc.

16.

Fed.

all motions to

13.)

The

amend its scheduling order only for good cause.

is

Defendants

must first show good cause to amend the scheduling order.
R. Civ.

an

Court

will

Fed. R. Civ. P.

"The good cause standard precludes modification unless the

schedule

cannot

be

met

seeking the extension.77
1417,

1418

(11th Cir.

Defendants

based

on

a

the

diligence

Sosa v. Airprint Sys.,

of

the

Inc.,

party

133 F.3d

1998).

seek to

1985

despite

letter

amend to

they

add a

received

29

U.S.C.

from

§ 259

the

defense

Department

of

Labor.

Defendants claim that they did not originally plead the

defense

because

the

letter was

no

longer

in

their possession.

They further argue that, despite their diligence,

they did not

receive a copy of the letter from Plaintiff until April 2015.
The Court is not persuaded.

First,

the Court questions

why

Defendants did not include the ,defense in their original answer.

That

is,

letter,

if

Defendants

are

claiming

to have

relied

on the

then they must have been aware of its existence when
7

they filed their answer.

defense,
(Doc.

which

36, Ex.

they

In

did

fact,

plead,

1 at 38-39.)

Defendants'

is

based

Nonetheless,

on

29

U.S.C.

the

same

§ 260

letter.

even if Defendants are

excused from not including the defense in their original answer,
they

should have

2014

deadline.

from

Plaintiff

production

requested the
Instead,

in

until

Defendants

they

February

letter prior
did not

submitted

2015.

to

the

request

their

second

Accordingly,

October
the

3,

letter

request

good

cause

to

find good cause

under

Rule

for

amend

the scheduling order does not exist.

Even

if

Defendants'

Civil

should

Court

motion

Procedure

opposing

Civ.

the

freely

P.

15.

would

15,

party's

were

a

still

fail.

party may

consent

give

to

or

leave

amend

leave

when

Under

of

justice

its

Federal

Rule

pleadings

the

Court.

with

"The

so requires.77

16,
of

the

court

Fed.

R.

The Court must generally have a reason to deny a

party leave to amend.

See Fla. Evergreen Foliage v. E.I. DuPont

De

470

Nemours

and

Co.,

F.3d

1036,

1041

(11th

Cir.

2006)

("[U]nless a substantial reason exists to deny leave to amend,
the

discretion

permit

of

denial.77

omitted) ).

the

District

Court

(citation
Court

The

omitted)
deny

may

is

the

would

be

would

fail

Court

allowed

futile

because

as

matter

a

a motion

Defendants

Defendants'
of

law.
8

broad

(internal

undue delay, undue prejudice, and futility.
If

not

enough

quotation

to

amend

marks

because

of

Id.

to

amend,

the

29

U.S.C.

§ 259

Under

to

29

U.S.C.

amendment

defense

§ 259,

an

employer may avoid liability under the FLSA if it proves that it
acted

in

good-faith

regulation,

order,

reliance

ruling,

on

"any

written

approval,

or

administrative

interpretation,

of

the . . . the Administrator of the Wage and Hour Division of the
Department

of

employer must
and was

(2)

Labor . . . .77

prove

that

29

the

U.S.C.

act

was

in conformity with and

(3)

§ 259.

"(1)

That

taken

in

good

Fresh

This

Poultry,

defense

employer

is

can

Inc.,

"restricted

show

interpretation,

policy . . . was

824

that

F.2d
to

that

926

practice

of

the

(11th

faith

authority

1987).

where

order,
or

Cole v.

Cir.

situations

regulation,

administrative

actually

923,
those

the

the

in reliance on a written

administrative interpretation by a designated agency.77
Farm

is,

the

ruling,

enforcement

vested

with

power to issue or adopt [such regulations or interpretations] of
a final nature as the official act or policy of the agency.77

29

C.F.R.

or

§ 790.19.

"Statements

employees are not
29 U.S.C.

§

made

by

other

officials

[such regulations or interpretations]77 under

259.

Defendants

claim

to

rely

on

a

1985

letter

from

Alfred

Perry, the Deputy Assistant Regional Administrator for the Wage
and Hour Division, which provides, in relevant part:

Where a farmer purchases a field of onions, or other crop,
prior to harvest—and where this purchase is clearly for
whatever may come out of the field (versus so much per bag
packed)-we consider that field to belong to the farmer who
purchased it.
The packing of these onions would be the
same as if the farmer had grown them.
This packing would
still constitute ^agriculture.'
On the other hand a farmer/packer might offer so much per
bag rather than an offer to purchase the field.
make no difference if the

^per bag'

It would

offer was made at

the

field or at the shed.
These bags packed are the property
of another grower.
This would create a ^non-agriculture'
packing shed operation ....
(Doc.

37,

Ex.

N.)

Because

this

letter

is

not

from

the

Administrator of the Wage and Hour Division of the Department

of Labor,

The

Defendants'

statute

and

defense would fail as

accompanying

regulation

a matter of law.

are

clear

that

the

defense may only be based on officials acting as the agency.
See 29 C.F.R.

§ 790.19.

Defendants have provided no evidence

that the Regional Deputy Administrator has the authority to

act as the Department of Labor.4

Nor have they pointed to any

case allowing reliance on a regional official for purposes of
29

U.S.C.

Circuit

case,

(8th Cir.
that

§ 259.

Hultgren

1990),

officials

agency.

Instead,

The

v.

Defendants

Cty.

rely

on

of Lancaster,

an

913

Eighth

F.2d

498

for the proposition that courts will find

other

than

Court

the

Administrator

declines

interpretation of Hultgren.

to

may

follow

act

as

the

Defendants'

First, in Hultgren, the employer

4 Because Defendants moved for summary judgment on their proposed § 259
defense, the Court is able to adequately address the merits of the defense.
10

relied

on

regional

a

letter

from

the

Id.

at

official.

Deputy

Administrator,

507.

Second,

not

allowing

a

the

employer to rely on the letter in Hultgren was not central to

the

court's

this

case

holding

that

the

because
Deputy

it

"assum[ed]

Administrator"

for

purposes

could

act

as

of
the

agency and went on to find that the employer could not assert

the

defense

Id.

at

507-508.

Regional

agency,

law.5
2.

because

Deputy

it

had

Because

not

Defendants

Administrator

Defendants'

conformed

has

have

the

with
not

the

shown

power

to

§ 259 defense would fail

as

writing.
that

act

the

as

the

a matter

of

Accordingly, Defendants' motion to amend is DENIED.

Motions for Summary Judgment
Plaintiff

judgment.

Defendants

have

both

moved

for

summary

Plaintiff has moved on only one issue, and Defendants

have moved on

raised

and

by

several.

both

The

parties

and

Court

then

will

the

first

address

issues

the

raised

issue

only

by

Defendants.

a. Whether Bland Farms was engaged in primary agriculture
with respect to the onions grown off its land

It is undisputed that Bland Farms is subject to the FLSA

and that

it did

not

pay

its packing-shed employees

overtime

during the relevant period; instead, the parties disagree about
5

Furthermore,

even if the Court allowed Defendants to amend and to

rely on the 1985 letter, Defendants would still not be entitled to summary
judgment on this issue.
As noted, § 259 requires Defendants to have
conformed with

the

letter,

Cole,

824 F.2d at

926,

meaning

they would be

required to show that they purchased entire fields of onions.
below, there is a factual dispute about whether Defendants did so.
11

As discussed

whether

an

exemption

summary

judgment

applies.

on

the

farmer for purposes of

growers' onions.6
be

exempt

shed

Both

issue

of

parties

whether

have

Bland

moved

Farms

for

was

a

the FLSA with respect to the independent

This issue is central to this case because, to

under

the

employees

FLSA's

must

agriculture

have

been

exemption,

engaged

in

the

packing-

agriculture

when

packing the onions grown by the independent farmers.

Under the FLSA,
from

the

employees engaged in agriculture are exempt

statute's

§ 213(b) (12).

That

overtime

maximum-hour

those

to

is,

requirement.

employers

are

employees

not

29

required

engaged

in

includes

farming in all its branches

other

includes

the

cultivation

and

to

pay

agriculture.

"^Agriculture'

things

U.S.C.

and among

tillage

of

the

soil . . . and any practices . . . performed by a farmer or on a
farm

as

an

incident

to

or

in

conjunction

with

such

farming

operations, including preparation for market . . . ."

29 U.S.C.

§ 203(f).

types

Under

agriculture:

this

primary

definition,

agriculture

Ares v. Manuel Diaz Farms,

2003).

Primary

Inc.,

agriculture

there

and

are

secondary

318 F.3d 1054,

includes,

two

"among

of

agriculture.

1056 (11th Cir.

other

things,"

cultivation and tillage of the soil.

Id^; 29 C.F.R. § 780.105.

Secondary

a

6

agriculture

Defendants

encompasses

broader

meaning

of

also address whether Bland Farms is the farmer of the

onions it grew on its own land.

However, that issue is not in dispute, so

the Court will not address it in this Order.
12

agriculture and includes other practices, "but only if they are
performed by a farmer or on a farm."

(citation

omitted)

secondary

practices

conjunction
omitted)

with

must

such

(internal

agriculture
practices

(internal

exemption

in

question

operations and not to
Mitchell

290
shed

v.

Huntsville

(5th Cir.

1959) .7

employees

fall

F.3d at

marks

performed

incidentally

farming

omitted).

operations."

quotation

marks

apply

must

318

quotation

be

to

Ares,

to

relate

to

the

practices,

the farming operations of

Accordingly,
under

the

For

farmer's

Wholesale Nurseries,

in

own

the
"the

farming

others . . . ."

Inc.,

in this case,

agriculture

or

(citation

omitted).

secondary

"The

to

Id.

1056.

267

F.2d 286,

the packing-

exemption

while

packing onions grown by the independent growers only if those

practices

relate

to

Bland

Farms'

farming

operations.

Said

differently,

Bland Farms must be engaged in primary agriculture

with

to those

regard

onions.

Defendants

argue

that

fact that the onions were grown on the other farmers'

the mere

land is

not dispositive and that Bland Farms farmed those onions because

it provided significant input to and exercised control over the
other farmers'

farming operations.

Plaintiff claims that Bland

Farms simply provided advice.

7 Pursuant to the court's holding in Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981), Fifth Circuit decisions decided prior to
October 1, 1981 are binding in this circuit.
13

First,

the

necessarily
performed

land

that

opposite

a

29

farmer

farmer's

conclusion

Id.

cases,

"a

is

careful

Additionally,

mere

amount to farming.
Huntsville

C.F.R.

owns

or

operations

§ 780.140.
leases

when

Id.

the

But

operations

farmer does not own or lease,

scrutiny

advice

of

or

267

raised

the

facts''

counselling

is

sold

nursery

The other one-third of

its

be
the
are

and in

necessary.

alone

F.2d at 290-91.

and

not

typically

will

not

In Mitchell,
stock,

amounted to two-thirds of the nursery stock it sold.
n.2.

is

Operations

will

operations.

presumed

Mitchell,

Wholesale

farming

farming

conducted on land that the

those

of

dispositive.

on

considered

location

which

Id. at 288

nursery stock came from other

growers,, and the nursery stock from other growers was stored in

a separate warehouse.

Id.

Huntsville Wholesale purchased this

nursery stock from a grower in Texas on a per-plant basis.
Huntsville

Wholesale

provided

no

labor,

advice regarding the nursery stock.

but

Id.

did

291.

provide

Moreover,

Id.
some

the

Texas grower sold a significant amount of nursery stock to other

growers.

Id. at 288 n.2.

Huntsville
when

it

Wholesale

housed

the

was

The court in Mitchell determined that
not

plants

engaged
purchased

in

secondary

from

the

agriculture

Texas

grower

because it was not engaged in agriculture with respect to the

growing

of

those

plants

because

it

purchase plants it intended to resale.
14

did

nothing

more

Id. at 290-91.

than

On the

other

hand,

when

an

independent

grower

is

sufficiently

integrated with the contracting party, the contracting party may
be engaged in agriculture.

355

F.2d

255,

259-60

See Wirtz v. Tyson's Poultry,

(8th Cir.

1966)

(distinguishing Mitchell

where independent poultry farmers raised chickens
company

because

raised

the

chickens

independent

if

retained ownership

not
of

for

the

growers

the

would

contract,

chickens

Inc.,

for a chicken

not

the

likely

chicken

and covered

some

have

company

costs,

and

the independent farmers were agents of the chicken company).

In

this

independent

case,

growers

Bland Farms.

the

undisputed

planted

and

grew

facts

show

that

onions

the

exclusively

for

And it is undisputed that Cruz provided some form

of input and direction to the growers with
the

onions

and that

The

parties,

he

however,

routinely visited

dispute

the

respect

the

growers'

significance

input and direction Cruz provided the growers.

to growing

and

fields.

amount

of

Plaintiff argues

that Cruz's input was merely advice because it was not binding

on

the

growers

and

because

Cruz

was

only

concerned

with

determining whether Bland Farms would reach its production goal.
Bland

Farms,

example,

however,

has

produced

contrary

evidence.

For

a number of growers thought of Cruz as their manager,

found his role was

vital,

and felt bound to follow his

orders.

(Doc. 37, Ex. EE at 51, 106; Doc. 39, Ex. 12 at 83-85; Doc. 37,
Ex. MM at 16,

32.)

In fact, there is evidence that one grower
15

considered himself "an appendix of Bland's operation."
37,

Ex.

EE

at

106.)

The

in

intimately

involved

respect

evidence

the

planting.

to

also

growers'

Moreover,

indicates

planning

although

Bland

that

(Doc.

Cruz

process
Farms

was

with

did

not

harvest and physically work in every field during every relevant
year,

the

some

years

facts

evidence
and

shows

did

harvest

sufficiently

Accordingly,

it

the

there

is

did

crops

distinguish

although

record to find,

that

provide
in

this

not

some

workers

years.

case

sufficient

as a matter of law,

some

from

in

These

Mitchell.

evidence

on

the

that Bland Farms was engaged

in primary agriculture,

Defendants have produced enough evidence

that

finder

a

reasonable

fact

could

determine

that

Bland

Farms

did more than provide advice.

Additionally,

there

is

a

factual

Bland Farms paid for the onions.

dispute

regarding

how

Plaintiff claims that Bland

Farms only paid for the onions after they were harvested and

sorted

and

only

specifications.
all

took

those

onions

that

met

certain

Defendants contend that Bland Farms purchased

of the onions while still in the field and compensated the

growers based on the number of onions that met a certain grade.
That is, under Defendants' theory, Bland Farms owned every onion
in the field,

even those that did not meet its standards.

And

Bland Farms' theory is supported by evidence: during one season,

Bland

Farms

successfully

enjoined
16

a grower

from selling

his

onions

to

a

dispositive,

third
it

party.

provides

Although

insight

as

to

this

issue

whether

is

Bland

not
Farms

simply agreed to purchase onions or had a more involved role.

On
matter

the
of

evidence
law,

agriculture
growers.
engaged

in

in

is

as

Accordingly,

and

of

Court

to

law,

Plaintiff's
Defendants'

was

grown

say

that

The

summary

motion

for

as

a

in

by

independent

the

Bland

primary

Farms

was

therefore,

Bland

Farms

to

summary

summary

was

on

not

cannot
engaged

those

judgment

for

say,

engaged

respect

motion

cannot

Court,

whether

with

finds

Court

Farms

agriculture.

agriculture
the

the

onions

unable

a matter

inappropriate.

issue

Bland

the

also

primary

secondary

DENIED,

that

regarding
It

determine,

presented,

onions.

this

issue

judgment

judgment

on

is
this

is DENIED.

b. "Cover" and "Spot" purchases

Defendants

matter of law,

also

request

that

the

Court

find

that,

as

a

certain "cover" or "spot" purchases it made are

exempt from the FLSA.

Defendants admit that these onions were

not a part of the onions grown by the growers discussed above
and that it did not pay overtime to the employees who packed
these

onions.

these onions.

And

Bland

Farms

does

not

argue

that

farmed

Instead, it claims that these small purchases do

not affect the agriculture exemption's application.
to Defendants,

it

According

Bland Farms made spot purchases from Plantation
17

Sweets,
(Doc.

RT

Stanley,

Ashley Day,

Lauren Hutton,

and Van Solkema.

35 11 251-260.)

As

discussed

additional
seller
291.

above,

crops

is

not

when

a

seller

from

an

independent

engaged

in

agriculture.

simply

grower

to

purchases

resell,

Mitchell,

263

that

F.2d

at

Defendants contend that spot and cover purchase are exempt

pursuant
unaware

to
of

the
any

agriculture
controlling

argument,

other

Wirtz

Jackson

v.

(finding

circuits
&

employees

authority

appear

Perkins

who

exemption.

to

Co.,

handled

Although

that

supports

follow

312

such

F.2d

purchased

the

48

Court

is

Defendants'

a

rule.

(2d

Cir.

1963)

stock

exempt

nursery

See

because the stock was purchased on an emergency basis because of

crop failures).

This rule, however, only applies when there is

a production shortfall,

production.
357

Adkins v. Mid-American Growers, Inc., 167 F.3d 355,

(7th Cir. 1999) .

made

the

shortages.

not simply when customer orders exceed

spot

Here,

purchases

Defendants contend that Bland Farms

because

of

weather-related

And a declaration made by Troy Bland,

crop

Bland Farms'

Operations Director, supports this argument with respect to some

of these purchases.
evidence
which

also

occurred

contradicts
before

testified that spot

special orders.

(Doc. 37, Ex. E.)

he

this

argument.

made

purchases

However, Defendants' own

his

In

his

declaration,

include purchases

(Doc. 37, Ex. I at 117.)
18

deposition,
Troy

Bland

made to fill

Viewing this evidence

together,

the

Court

conclude

that

some

unavoidable

of

shortages

production.
this

finds

The

that

these
or

Court,

a

reasonable

purchases

because

were

of

therefore,

fact

made

orders

DENIES

finder

could

because

that

summary

of

exceeded

judgment

on

issue.

c. Delbert Bland's personal liability

Plaintiff
Delbert

brought

Bland

judgment on

this

personally,

Delbert

action

and

against

Defendants

Bland's personal

now

Bland

Farms

move

liability.

and

for

summary

be

liable,

To

Delbert Bland must be an employer under the definition found in
29

U.S.C.

§ 203.

"Whether

an

individual

falls

within

[that]

definition does not depend on technical or isolated factors but
rather

on

the

circumstances

Sanford-Orlando

Cir.

2008)

omitted).

Kennel

of

Club,

(citations

the

whole

Inc.,

515

omitted)

activity."

F.3d

(internal

As an officer,8 to be liable,

involved

control

alone

is

personally liable.

638

insufficient

(11th
to

or

he "must either be

Patel

F.2d 632,

operation

marks

responsibility for the supervision of the employee[s]."
803

day-to-day

quotation

(11th

direct

Wargo,

the

1160

v.

some

v.

in

1150,

Perez

Cir.

support

have

1986).
finding

Unexercised
an

officer

Perez, 515 F.3d at 1161.

8 The parties do not actually discuss whether Delbert Bland is in fact
an officer of Bland Farms, but both parties treat the issue as though he is.
For purposes of this motion, therefore, the Court will do the same.
19

Defendants

contend

that

there

is

no

evidence

Bland participated in the day-to-day operations.
argue
day

that

Bland

employment

Farms'

matters

involved

in

that

employees

UBS

by

other

states,

(Doc.

57,

Delbert

went

to

Ex.

Bland

Delbert

and

frequent

the

viewed
fact

in

not

the

particularly

light

finder

Bland

could

was

involved

most

conclude

in

wages of individual employees.

wage

2013

that

and

Troy"

and

shed

wages.

evidence

during

the

that

Vidalia

(Doc. 39, Ex. at 52.)

favorable

to

as

day-to-day

of

wages,

to

been

argues

increasing

points

strong,

that,

from

certain

packing

not

approval

Delbert

addresses

Onion season to check on production.

Although

for

"Per

also

has

they

day-to

Plaintiff

e-mails

increase

Plaintiff

would

two

reads,

to

Delbert"

K.)

to

Bland

manages

Bland

2011.

Delbert

Instead,

UBS,

Delbert

since

one

instruction
"Per

that

points

increases;

an

company,

matters

Plaintiff

wage

followed

and

employment

increases.
discuss

staffing

that

when

the

evidence

Plaintiff,

recently

as

decisions,

Accordingly,

a

reasonable

2013,

such

is

as

Delbert

raising

Defendants'

motion

for summary judgment on this issue is DENIED.
d. Good faith under 29 U.S.C.

In

their

answer,

pursuant to 29 U.S.C.
for

FLSA

violations.

Defendants

§ 260.
29

§ 260

pleaded

a

good-faith

defense

Liquidated damages are permitted

U.S.C.

§ 216.

And

29

U.S.C.

§ 260

provides that "if the employer shows to the satisfaction of the
20

court

that

[the

violation]

was

in

good

reasonable grounds for believing that

violation of the
award

no

succeed

[FLSA,]

liquidated

on

this

that

he

had

was not a

in its sound discretion,

damages . . . ."

a

and

[the violation]

the court may,

defense,

faith

29

defendant

U.S.C.

must

To

objective

show

§ 2 60.

and
942

subjective good faith.

Dybach v. Fla.

Dep't of Corrections,

F.2d

Cir.

And

1562,

burden

what

to

1566
show

[the Act]

(11th
that

it

1991).

"had

an

honest

it

is

a

intention

defendant's
to

ascertain

requires and to act in accordance with it."

Id.

(alterations in original).
Here,
because

Defendants

they

Defendants

letter,
at

relied

have

the Court

summary

claim
on

the

presented

finds

judgment,

they

it

1985

evidence

entitled

opinion

that

to

this

letter.

they

inappropriate to

especially

defense.

are

considering

defense
Although

relied

on

rule on this
the

nature

of the

Defendants may present

trial,

and the Court will make

time.

the

issue

discretionary

Summary judgment on this issue is DENIED.

V.

For

summary
amend

the

reasons

judgment

(doc.

34)

is

28)

DENIED;

defense

its ruling on the issue at

at

that

Conclusion

discussed

(doc.

this

is
and

21

above,

DENIED;

Plaintiff's

Defendants'

Defendants'

motion

motion

motion
for

for

to

summary

judgment (doc. 36) is DENIED.

This case will proceed to a bench

trial.

ORDER ENTERED at

Augusta,

Georgj
jia

/ (j> day of
oJ

this

March,

2016,

^BLE J/.
UNIT.ED STATES
SOUTHERN

22

RANDAL RALL
DISTRICT

DISTRICT

JUDGE

OF GEORGIA