Agaton et al v. Hospitality & Catering Services, Inc.
Filing
16
MEMORANDUM ORDER denying 13 Plaintiffs' Motion for Default Judgment on their FLSA claims and Plaintiffs' motion for U-Visa certification. Signed by Judge Elizabeth E Foote on 3/28/2013. (crt,Keifer, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
SALVACION GALANO AGATON, ET AL
CIVIL ACTION NO. 11-1716
VERSUS
JUDGE ELIZABETH ERNY FOOTE
HOSPITALITY & CATERING SERVICES, INC.
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Before the Court is a Motion for Default Judgment and a Motion for U-Visa
Certification, both filed by Plaintiffs. [Record Document 13]. Plaintiffs are
nonimmigrant workers who allege that their employer violated the Fair Labor Standards
Act, 18 U.S.C. § 201 et. seq. (2012), and the Victims of Trafficking Protection Act, 18
U.S.C. § 1595 (2012). Defendant Hospitality & Catering Services Inc. has failed to
appear or respond to Plaintiffs’ pleadings.1 Plaintiffs now move for default judgment on
their Fair Labor Standards Act claim and for certification of their U-Visa applications. For
the following reasons, the Court DENIES both motions.
1
Plaintiffs first attempted to personally serve Defendant’s Louisiana agent for
service of process. Neither Defendant nor Defendant’s agent for service of process,
however, were located at the address listed with the Louisiana Secretary of State.
Plaintiffs then served Defendant via certified mail at their domicile address listed with
the Louisiana Secretary of State in accordance with Fed. R. Civ. P. 4(h)(1)(A) and La.
Rev. Stat. Ann. § 13:3204 (2011). That process was received on November 14, 2011.
[Record Document 6-1, pp. 1-2]. The Clerk of Court filed an Entry of Default as to the
Defendant on December 22, 2011. [Record Document 7].
II.
Fair Labor Standards Act Claim
Plaintiffs allege in their complaint that they worked for more than forty hours a
week but were not compensated for their overtime at the rate required by the Fair
Labor Standards Act (“FLSA”). [Record Document 1, p. 10]; 29 U.S.C. § 207(a)(1)
(2012). Plaintiffs also allege that Defendant’s failure to include the fair value of
employer-provided housing in the calculation of their “regular rate of pay for the
purposes of overtime” as well as Defendants’ “tardy and incomplete wage payments”
violated the FLSA. In their Motion for Default Judgment, however, Plaintiffs abandon
their overtime claims under the FLSA, as they “have not been able to calculate their
monetary damages precisely.” [Record Document 13-1, p.4]. Plaintiffs now seek only
“the recruitment fee (at least $375 each), their travel expenses to the employment site
($154.00 each), which for all Plaintiffs total $6,877.00.” Id. A party is not entitled to a
default judgment as a matter of right, even where the defendant is technically in
default. Lewis v. Lyons, 236 F.3d 766, 767 (5th Cir. 2011) (citations omitted). “Default
judgments are a drastic remedy, not favored by the Federal Rules and resorted to by
courts only in extreme situations.” Id. A district court has discretion to deny a motion
for default judgment if the well-pleaded factual allegations, “even if found true, could
not impose liability” against the defendant. Id. Plaintiffs offer no argument for why the
recruitment fee and travel expenses to their employment site, expenses that they
elsewhere allege violate the regulations governing their visas, are damages recoverable
under the FLSA. [Record Document 13-1, pp. 7-8]. Presented with no argument from
counsel addressing why these damages are appropriate under the FLSA, the Court will
not enter default judgment on the FLSA claims at this time.
III.
U-Visa Certification
Using language copied verbatim from Garcia v. Audubon Communities Mgmt.,
LLC, a case from the Eastern District of Louisiana, Plaintiffs move the Court to certify
their U-Visa application on the grounds that they have been and will be helpful to an
investigation of criminal actions by the Defendant. [Record Document 13-1, pp. 7, 10];
Civil Action No. 08-1291, 2008 WL 1774584 (E.D. La. 2008). In support of their motion,
Plaintiffs allege a number of illegal actions taken by the Defendant. They argue that the
recruitment and job-placement fees charged by Defendant and Defendant’s failure to
reimburse Plaintiffs for their travel expenses to the work site violate Department of
Labor “guidelines.” They also claim that the Defendant misrepresented on their visa
applications their place of employment and the type of labor they would perform. The
Defendant also allegedly failed to provide a job offer letter to Plaintiffs and deducted
more than the fair cost of living from Plaintiffs’ paychecks. The Defendant failed to pay
Plaintiffs’ rent as agreed, failed to pay Plaintiffs’ electricity bill as promised, and placed
Plaintiffs in an overcrowded apartment. Plaintiffs were allegedly threatened by the
Defendant with deportation and refusal to process their visas if they complained or left
their employment.
In support of their argument that they have been helpful with an investigation of
the Defendant’s alleged criminal activity, Plaintiffs have attached email correspondence
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from 2010 showing that they were in contact with a representative of the Department
of Labor regarding an investigation of the Defendant. [Record Document 13-5].
Plaintiffs point to no evidence that there is an ongoing criminal investigation or
prosecution of the Defendant. This Court is not presiding over any criminal matter
related to the Defendant.
Non-immigrant victims of certain enumerated classes of crimes may apply for a
U-Visa. 8 U.S.C. § 1101(a)(15)(U) (2012); see generally Charles Gordon, Stanley
Mailman, Stephen Yale-Loehr, and Ronald Y. Wada, Immigration Law and Procedure §
28.02 (2012). The visa is intended to protect non-immigrant victims of crimes who have
information that is helpful to investigation or prosecution of the crime. Richard Steel,
Steel on Immigration Law, § 3:34 (2012). The statute provides that in order to be
eligible for a U-Visa, the alien must show that he or she:
...has been helpful, is being helpful, or is likely to be helpful to a Federal, State,
or local law enforcement official, to a Federal, State, or local prosecutor, to a
Federal or State judge, to the Service, or to other Federal, State, or local
authorities investigating or prosecuting criminal activity described in clause (iii).
8 U.S.C. § 1101(a)(15)(U)(i)(III) (2012).
Clause (iii) of the statute enumerates the types of crimes that support a U-visa
application by the victim:
the criminal activity referred to in this clause is that involving one or more of the
following or any similar activity in violation of Federal, State, or local criminal law:
rape; torture; trafficking; incest; domestic violence; sexual assault; abusive
sexual contact; prostitution; sexual exploitation; female genital mutilation; being
held hostage; peonage; involuntary servitude; slave trade; kidnapping;
abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion;
manslaughter; murder; felonious assault; witness tampering; obstruction of
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justice; perjury; or attempt, conspiracy, or solicitation to commit any of the
above mentioned crimes; or
8 U.S.C. § 1101(a)(15)(U)(iii) (2013).
Another statute provides that an application for a U-Visa must contain a
certification that states that the alien “has been helpful, is being helpful, or is likely to
be helpful” in the investigation or prosecution” of qualifying criminal activity. 8 U.S.C. §
1184(p)(1) (2012). A federal judge may certify a U-Visa application. Id. Thus, the
statute requires that the victim of a qualifying crime possess information that is helpful
to the authorities prosecuting or investigating the crime. The statute also specifies that
federal judges are an authority to whom a victim may helpful in the prosecution or
investigation of a qualifying crime, even though federal judges neither investigate not
prosecute crimes.
The regulations provide more detail concerning the certification procedure:
The certification must state that: the person signing the certificate is the head of
the certifying agency, or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of that agency, or is a Federal,
State, or local judge; the agency is a Federal, State, or local law enforcement
agency, or prosecutor, judge or other authority, that has responsibility for the
detection, investigation, prosecution, conviction, or sentencing of qualifying
criminal activity; the applicant has been a victim of qualifying criminal activity
that the certifying official's agency is investigating or prosecuting; the petitioner
possesses information concerning the qualifying criminal activity of which he or
she has been a victim; the petitioner has been, is being, or is likely to be helpful
to an investigation or prosecution of that qualifying criminal activity; and the
qualifying criminal activity violated U.S. law, or occurred in the United States, its
territories, its possessions, Indian country, or at military installations abroad.
8 C.F.R. 214.14(c)(2)(i)(2013).
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Thus, the regulations reproduce the dissonance found in the statute—a federal
judge has authority to certify despite the fact that federal judges neither prosecute nor
investigate crimes. Recognizing this confusion, the regulations specify that they
interpret the statutory term “investigation or prosecution” broadly because judges
neither investigate crimes nor prosecute perpetrators:
USCIS is defining the term [“investigation or prosecution”] to include the
conviction and sentencing of the perpetrator because these extend from the
prosecution. Moreover, such inclusion is necessary to give effect to section
214(p)(1) of the INA, 8 U.S.C. 1184(p)(1), which permits judges to sign
certifications on behalf of U nonimmigrant status applications. Judges neither
investigate crimes nor prosecute perpetrators. Therefore, USCIS believes that the
term “investigation or prosecution” should be interpreted broadly as in the AG
Guidelines.
Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53014, 53020 (Sept. 17,
2007) (to be codified at 8 C.F.R. 214.14) (citations ommitted).
The regulations also interpret the statutory term “helpful” broadly to include the very
early stages of an investigation:
The requirement was written with several verb tenses, recognizing that an alien
may apply for U nonimmigrant status at different stages of the investigation or
prosecution. By allowing an individual to petition for U nonimmigrant status upon
a showing that he or she may be helpful at some point in the future, USCIS
believes that Congress intended for individuals to be eligible for U nonimmigrant
status at the very early stages of an investigation. This suggests an ongoing
responsibility to cooperate with the certifying official while in U nonimmigrant
status.
Id. at 53019.
Two district courts have relied on these interpretive statements in the regulations
to hold that a federal district judge presiding over a civil case brought by potential UVisa petitioners may certify that the petitioners have information that will be helpful to a
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future investigation upon a prima facie showing that the petitioners have been a victim
of a qualifying criminal activity. Garcia v. Audubon Communities Mgmt., Civil Action No.
08-1291, 2008 WL 1774584 at *2-4 (E.D. La. 2008), Villegas v. Metro. Gov’t of
Nashville, No. 3:09-00219, 2012 WL 4329034 at *5 (M.D. Tenn. 2012). This Court
cannot join in the Garcia and Villegas Courts’ reading of the regulations. As this Court
reads the regulations, they do not allow certification by a federal judge when that judge
has no responsibilities regarding any pending investigation or prosecution of the
qualifying crime. Although the regulations state that the word “helpful” should be read
to include the very early stages of the investigation, they still contemplate that some
investigation or prosecution must have begun before certification.2 Eligibility for “U”
Nonimmigrant Status, 72 Fed. Reg. at 53020. Furthermore, although the regulations
provide that the statutory term “investigation or prosecution” should be interpreted
broadly to accommodate the authority of federal judges to certify, to read the
regulations so broadly as to allow certification by a judge when that judge has no
connection to any criminal prosecution or investigation involving the victims does
violence to the rest of the regulatory language.
The regulations require that the certification state that the person signing the
certificate is “responsible” for “detection, investigation, prosecution, conviction, or
sentencing of qualifying criminal activity.” 8 C.F.R. 214.14(c)(2)(i)(2013). A reading of
2
In Villegas the Court noted that the petitioners provided information to state and
local law enforcement officials. Villegas, 2012 WL 4329034 at *5. In Garcia there is no
indication that the petitioners had any contact with law enforcement.
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this clause which recognizes the ability of federal judges to certify should also give
meaning to the term “responsible.” Although a federal judge is not primarily
“responsible” for the investigation, prosecution, or conviction of criminals, the judge
may have responsibilities related to those facets of a criminal case when a criminal
matter comes before the court. The certificate must also state that “the applicant has
been a victim of qualifying criminal activity that the certifying official’s agency is
investigating or prosecuting...” Id. Once again, although this clause does not appear to
contemplate judicial certification, it can be given meaning in the judicial context by
recognizing the underlying principle — that only an authority that is somehow involved
in the ongoing investigation or prosecution of qualifying criminal activity can certify.
Finally, the certificate must state that “the petitioner... is likely to be helpful to an
investigation or prosecution of that qualifying criminal activity.” Id. This clause clarifies
that the petitioner need not have helped in an ongoing investigation at the time of
certification so long as the petitioner is likely to be helpful with the investigation at
sometime in the future. Reading these three clauses in light of the federal judge’s
authority to certify, the Court holds that under the circumstances of this case this Court
may not certify a U-Visa application when this judge has no responsibilities or even
knowledge regarding any possible pending investigation or prosecution of the qualifying
criminal activity. This reading interprets the terms “investigation” and “prosecution”
broadly but does not distort the meaning of the rest of the regulation.
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The Court makes no pronouncement regarding exactly when it would be
appropriate for a judge to certify a U-visa application because it is unnecessary to do so
in order to dispose of the instant motion. For the reasons enunciated above, Plaintiffs’
motion for U-Visa certification is DENIED.
IV.
Conclusion
For the foregoing reasons,
Plaintiffs’ Motion for Default Judgment on their FLSA claims [Record Document
13] be and is hereby DENIED;
Plaintiffs’ motion for U-Visa certification [Record Document 13] be and is hereby
DENIED.
Done this28 of March, 2013 in Shreveport, Louisiana.
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