Serrano Diaz et al v. Barclift et al
Filing
30
ORDER granting in part and denying in part 26 Memorandum and Recommendation and granting 18 Motion to Certify Class. The court denies without prejudice plaintiffs' motion to certify a subclass. Counsel should read order in its entirety for further instructions. Signed by Senior Judge Malcolm J. Howard on 9/27/2011. (Heath, D.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:10-CV-15-H
ROSALIA SERRANO DIAZ, PERLA
Z. VALENZUELA, JAIME BERNAL
DELGADO, on behalf of
themselves and all others
similarly situated,
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Plaintiffs,
v.
QUALITY CRAB CO, INC. and
WILLIAM E. BARCLIFT,
Defendants.
ORDER
This matter is before the court on the plaintiffs’ motion
for an order conditionally certifying their claim under the Fair
Labor Standards Act of 1938 (“FLSA”) as a collective action
pursuant
to
collective
29
U.S.C. § 216(b),
action
distribution
to
and
the
opt-in
potential
approving
form
and
opt-in
a
Judge
recommendation
conditionally
objections
James
on
August
certify
have
been
the
E.
Gates
plaintiffs.
12,
2011,
proposed
filed,
filed
and
the
a
time
and
for
the
their
Defendants
United States
memorandum
recommending
class
of
authorizing
have filed a notice of consent to the motion.
Magistrate
notice
the
and
court
subclass.
doing
so
No
has
expired.
joint
As requested by Judge Gates, the parties have filed a
notice
regarding
class
and
subclass
definitions,
class
notice and consent to sue. This matter is ripe for adjudication.
STATEMENT OF THE FACTS
According
to
the
complaint,
the
named
plaintiffs
were
employed by defendants at defendants’ seafood processing plant
pursuant
to
applications
defendants
submitted
to
the
U.S.
Department of Labor requesting H-2B guest workers from Mexico.
Plaintiffs were all allegedly recruited in Mexico and required
to obtain H-2B visas prior to their employment.
Plaintiffs
allege they were not paid the minimum wage for all hours worked
because defendants effectively reduced their wages by requiring
them to pay visa, transportation and border crossing costs they
incurred.
They also allege they did not receive the minimum
wage because of unlawful deductions from their pay and charges
for rent that exceeded reasonable costs.
Although plaintiffs’
complaint also contains claims based on state law, plaintiffs
currently
claims.
seek
certification
solely
in
relation
to
the
FLSA
Each named plaintiff has submitted a declaration in
support of the motion.
The
court
finds
the
named
plaintiffs
have
made
the
requisite initial showing that members of the proposed class are
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so similarly situated as to warrant conditional certification of
a collective action pursuant to 29 U.S.C. § 216(b).
COURT’S DISCUSSION
I.
Motion for Certification as FLSA Collective Action
A.
FLSA Certification Procedure
The FLSA permits employees to maintain an action for unpaid
minimum wages against an employer on behalf of themselves and
all others similarly situated.
29 U.S.C. § 216(b).
An employee
who desires to participate in a FLSA collective action must
“give[] his consent in writing to become such a party.”
There
are
two
requirements
collective action.
for
Ass’n,
338
of
a
FLSA
First, the members of the proposed class
must be “similarly situated.”
Growers
certification
Id.
F.
Supp.
Id.; De Luna-Guerrero v. N.C.
2d
649,
654
(E.D.N.C.
2004).
Second, the class members must “opt in” by filing their consent
to suit.
Id. 1
Class members are “similarly situated” for purposes of §
216(b) if they “raise a similar legal issue as to coverage,
exemption, or nonpayment of minimum wages or overtime arising
from at least a manageably similar factual setting with respect
1
This procedure is different from the procedure utilized
for class actions under Rule 23 where potential plaintiffs are
bound by the judgment unless they opt out.
3
to their job requirements and pay provisions.”
The
Fair
Labor
Standards
Act
§
Ellen C. Kearns,
18.IV.D.3,
at
1167
However, “their situations need not be identical.
as
to
time
actually
worked,
wages
actually
(1999).
Differences
due,
and
hours
involved are . . . not significant to this determination.”
Id.
Certification of a FLSA collective action is typically a
two-stage
process.
First,
the
court
makes
a
preliminary
determination whether to conditionally certify the class based
upon the limited record before the court.
conditional
certification
is
fairly
The standard for
lenient
and
requires
“‘nothing more than substantial allegations that the putative
class members were together the victims of a single decision,
policy or plan.’”
Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001) (quoting Vaszlavik v. Storage
Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
is
conditionally
plaintiffs’
certified,
counsel
to
the
provide
court
putative
If the class
typically
class
authorizes
members
with
notice of the lawsuit and their right to opt in.
The
second
stage
of
class
certification
comes
later,
usually after discovery is complete, and is based upon a more
developed factual record.
Jimenez-Orozco v. Baker Roofing Co.,
No. 5:05-CV-34-FL, 2007 WL 4568972, at *6 (E.D.N.C. Dec. 21,
2007).
At this stage, the court conducts a detailed review of
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the claims and defenses in determining whether the suit should
proceed as a collective action.
B. The Proposed Class
Plaintiffs define the class for which they seek conditional
certification as follows:
All other similarly situated employees of Defendants
who worked in any pay period falling within the three
chronological years immediately preceding April 30,
2010 and continuing thereafter through the date on
which final judgment is entered in this action and
who timely file (or have already filed) a written
consent to be a party to this action pursuant to 29
U.S.C. § 216(b).
Plaintiffs also seek to certify a subclass as follows:
All similarly situated employees of defendants who had
deductions made from their pay by defendants, and/or
who were charged for rent. 2
C.
Approval of the Class
Having reviewed the complaint as well as plaintiffs’ motion
to certify and the M&R prepared by Judge Gates, the court finds
2
The court notes this subclass definition was submitted in the
joint notice by the parties on August 23, 2011 [DE #28] in
response to Judge Gates’ request for the parties to reconsider
the subclass definition in order to remove any reference to the
defendants’ alleged wrongdoing.
The parties jointly agreed to
this revision.
The parties also note that they understand and
agree that entry into the class should be limited to the final
date for the opt-in period set by the court.
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that plaintiffs’ collective action should be certified and the
class should be defined as follows:
Any and all individuals employed by defendants Quality
Crab Company and/or William E. Barclift in Elizabeth
City,
North
Carolina,
under
the
United
States
Department of Labor’s H-2B temporary guestworker
regulations at any period of time from April 30, 2007
to the present.
The
court
finds
that
the
requirements
for
conditional
certification have been met with respect to the class as more
specifically defined by the court.
supporting
members
declarations
and
establish
subclass
all
worked
Plaintiffs’ complaint and
that
at
the
proposed
defendants’
class
seafood
processing plant, advance similar claims and seek substantially
the same form of relief.
In essence, the plaintiffs claim they
are “together the victims of a single decision, policy or plan”
that violates the FLSA.
D.
See Thiessen, 267 F.3d at 1102.
The Proposed Subclass
As
to
the
proposed
subclass,
the
court
finds
that
the
plaintiffs have not shown a specific need for the subclass as
defined by the plaintiffs.
Furthermore, the court finds that if
it were to approve a subclass or subclasses, said subclass(es)
would need to be more specifically defined.
Therefore, the
motion to certify a subclass is DENIED WITHOUT PREJUDICE.
If
plaintiffs wish to seek certification of a subclass, they may
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refile their motion, specifically articulating the purpose of
such
subclass(es)
and
defining
the
subclass(es)
with
more
specificity.
E.
Notice to and Disclosure of Potential Class Members
Plaintiffs
also
seek
an
order
approving
their
proposed
class notice and requiring defendants to disclose the names and
addresses of potential class members so that counsel may inform
all potential class members of the pending suit and their rights
to join the suit.
The court finds notice to be appropriate in
this case, and approves for distribution the notice and consentto-sue form attached as an exhibit to this order. 3
For purposes
of the record, plaintiffs shall file with the court the Spanish
translations
of
both
the
Notice
and
consent-to-sue
forms
including the changes made by the court.
To
effectuate
notice,
the
court
orders
defendants
to
produce, within 21 days of the date of this order, the full
names, last date(s) of employment of all putative class members
employed by either of the named defendants and last known work
and
home
addresses
of
workers
employed
under
H-2B
clearance
orders from April 30, 2007 to the present. Plaintiffs shall then
have
six
months
following
disclosure
by
the
defendants
to
3
The court has made minor revisions to the plaintiffs’ proposed
notice and consent-to-sue form attaches the revised notice and
consent-to-sue form as exhibits to this order.
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distribute the court-approved notice and consent to sue form to
potential opt-in plaintiffs.
Defendants are also ordered to
post the court-approved notice, in both English and Spanish, at
the
class
members’
place
of
employment
and
in
the
housing
provided by defendants to their H-2B employees.
CONCLUSION
For the foregoing reasons, the court orders as follows:
(1)
Plaintiffs’
motion
for
conditional
certification
of
a
collective action [DE #18] is GRANTED on the terms set
forth
herein,
and
the
FLSA
claims
are
certified
as
a
collective action under 29 U.S.C. § 216(b).
(2)
The class is defined as follows:
Any and all individuals employed by defendants
Quality Crab Company and/or William E. Barclift
in Elizabeth City, North Carolina, under the
United
States
Department
of
Labor’s
H-2B
temporary guestworker regulations at any period
of time from April 30, 2007 to the present.
(3)
The court DENIES WITHOUT PREJUDICE plaintiffs’ motion to
certify a subclass.
Plaintiffs may refile their notice on
the conditions heretofore stated.
(4)
The court ORDERS defendants to produce, within 21 days of
the date of this order, the full names, last date(s) of
employment of all putative class members employed by either
of
the
named
defendants
and
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last
known
work
and
home
addresses of workers employed under H-2B clearance orders
from April 30, 2007 to the present.
(5)
The court APPROVES the class notice and consent-to-sue form
as attached hereto.
Following the disclosures provided for
in this order, plaintiffs’ counsel shall have six months to
distribute
the
court-approved
notice
form to potential opt-in plaintiffs.
and
consent-to-sue
Defendants are also
ordered to post the court-approved notice, in both English
and Spanish, at the class members’ place of employment and
in
the
housing
provided
by
defendants
to
their
employees.
27th
This ____ day of September 2011.
__________________________________
Malcolm J. Howard
Senior United States District Judge
At Greenville, NC
#26
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H-2B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
CASE NO: 2:10-CV-15-H
Rosalia Serrano Diaz, Perla Z.
Valenzuela, Jaime Bernal Delgado,
on behalf of themselves and all
others similarly situated,
Plaintiffs.
v.
Quality Crab Co., Inc. and William E.
Barclift,
Defendants.
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NOTICE
TO:
FROM:
Attorneys Carol L. Brooke and Clermont L. Fraser
RE:
A law suit filed against Quality Crab Co., Inc. and William E.
Barclift to recover unpaid wages
DATE:
1.
Current or former employees of Quality Crab Co., Inc.
[Date]
Purpose of the Notice
The purpose of this Notice is to tell you about a lawsuit filed by former H-2B workers against
Quality Crab Co., Inc. and William E. Barclift, seeking payment of wages to workers. You
may be a member of the Plaintiffs’ class. This notice will tell you how your rights may be
affected by this suit, and explain how you can participate in this suit if you want to do so.
2.
Description of the Lawsuit
Three former employees of Quality Crab Co., Inc. at its Elizabeth City, North Carolina
processing facility have filed a lawsuit in the United States District Court for the Eastern District
of North Carolina against Quality Crab Co., Inc. and William E. Barclift. The name and case
number of the lawsuit are Serrano Diaz, et al. v. Quality Crab Co., Inc. et al., 2:10-CV-15. The
workers bringing the lawsuit are called the Plaintiffs. Quality Crab Co., Inc. and William E.
Barclift are called the Defendants.
The lawsuit asks for payment of the minimum wages that the Plaintiffs Rosalia Serrano Diaz and
Perla Z. Valenzuela claim were due for the work they performed. The lawsuit claims that
Plaintiffs were each paid less than the minimum wage during their first week of work because they
were required to pay upfront for some or all of their travel, visa and border crossing expenses. The
lawsuit also claims Plaintiffs were not paid the minimum wage for every hour they worked because
Defendants made deductions from their pay for travel expenses, aprons, boots, and knives, and/or
made charges for rent which exceeded the reasonable cost of that rent, and that those deductions
and/or charges brought them below the minimum wage.
The lawyers for the Plaintiffs who brought this case are:
Carol L. Brooke
Clermont L. Fraser
NC Justice Center
224 S. Dawson St.
P.O. Box 28068
Raleigh, NC 27611
(919) 861-0606
Toll free telephone from Mexico: 001-866-237-6066
Toll-free telephone from the U.S.: 1-866-415-1389
Fax from the U.S.: 1-919-856-2175
Fax from Mexico: 001-919-856-2175
The Defendants deny the allegations that the Plaintiffs have made and say that the employees
have been properly compensated and are not owed any money at this time. The Court has not
yet decided whether the Plaintiffs are correct or whether anyone is owed money at this time.
3.
Your Right to Participate in this Lawsuit
This Notice tells you about your rights under the federal minimum wage law in the United
States, which is called the Fair Labor Standards Act. If you worked for Quality Crab Co.,
Inc. and/or William E. Barclift at any time between April 30, 2007 and the present on an H2B visa, it is possible that you have a right to join this lawsuit.
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You may be eligible to participate in this lawsuit if your experience was similar to that of the
named Plaintiffs and you were “similarly situated” to the Plaintiffs. Your options are the
following:
1) Do Nothing – If you do nothing, you may lose some of your rights to seek payment, as
your claims will eventually expire. If you do nothing, you do not lose your right to bring a
separate lawsuit against Quality Crab Co., Inc. and/or William E. Barclift. However, if
money is awarded to the Plaintiffs in this case, you will not receive it if you do not join this
case.
2) Ask to Join this Lawsuit – By joining this lawsuit, you gain the possibility of getting
money or benefits that may result from a trial or settlement, but you give up your right to
bring a separate lawsuit of your own against Quality Crab Co., Inc. and/or William E.
Barclift for the same legal claims brought in this lawsuit.
4.
How to Participate in this Lawsuit
This notice includes a form titled “Consent to Sue.” If you want to join this lawsuit, and be
eligible to receive money you might be owed, you must read (or have read to you), sign and
return the Consent to Sue form. You can return the form by mail or by fax. The Consent to
Sue forms must be mailed or faxed to the North Carolina Justice Center by [DATE].
The Consent to Sue form should be mailed to:
Carol L. Brooke
NC Justice Center
224 S. Dawson St.
P.O. Box 28068
Raleigh, NC 27611
It can also be faxed to:
Fax from the U.S.: 1-919-856-2175
Fax from Mexico: 001-919-856-2175
If you have questions or concerns about how to participate in this case, you may call the
Plaintiffs’ attorneys:
Toll free telephone from Mexico: 001-866-237-6066
Toll-free telephone from the U.S.: 1-866-415-1389
5.
Retaliation is Illegal
It is a violation of United States law for Quality Crab Co., Inc. and/or William E. Barclift and/or
their agents or contractors to threaten, harm, fire, refuse to hire, or in any manner discriminate
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against you for taking part in this case. If you believe that you have been threatened, punished,
discriminated against, or retaliated against for discussing or choosing to join in this lawsuit, you
can call the North Carolina Justice Center at:
Toll free telephone from Mexico: 001-866-237-6066
Toll-free telephone from the U.S.: 1-866-415-1389
6.
Effect of Joining this Lawsuit
If you join this lawsuit, you will be included in the decision made by the court, whether that
decision is favorable or unfavorable. You may also share in any money received in the lawsuit
(either through a decision by the Court or through a settlement).
By joining this lawsuit, you designate the attorneys for the plaintiffs to make decisions on your
behalf concerning this case. The decisions and agreements made in this lawsuit will affect your
claims.
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE HONORABLE
MALCOLM J. HOWARD, SENIOR JUDGE FOR THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA. THERE ARE NO
GUARANTEES THAT MONEY WILL BE RECOVERED IN THIS CASE. THE COURT
HAS NOT YET DECIDED WHETHER THE CLAIMS MADE IN THE LAWSUIT ARE
VALID.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
CASE NO: 2:10-cv-15
Rosalia Serrano Diaz, Perla Z.
Valenzuela, Jaime Bernal Delgado,
on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
Quality Crab Co., Inc. and William E.
Barclift,
Defendants.
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CONSENT TO SUE
I, _________________________________, hereby consent to be a party to the
above-captioned lawsuit under 29 U.S.C. § 216(b) to assert my right to the minimum
wage required by the Fair Labor Standards Act.
Signature: _______________________________________
First and Last Name (printed): _______________________________________________
Address: _______________________________________________
Neighborhood: __________________________________________
City: __________________________________________________
State: _______________________
Zip Code: _____________________
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