Gonzalez-Quinones et al v. Speight Seed Farms, Inc. et al

Filing 51

ORDER GRANTING 46 Motion to Certify Class. Signed by US District Judge Terrence W. Boyle on 4/13/2014. (Fisher, M.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION JUAN MANUEL HERNANDEZ-MARTINEZ, on behalf of himself and themselves and all other similarly situated persons, Plaintiffs, ORDER FOR CLASS CERTIFICATION v. Case No: 4-13-CV-82-BO Speight Seed Farms, Inc., John Milton Beamon, and Emma Ortega, Defendants. This matter is before the Court on the Joint Motion by the named plaintiff, defendants (hereinafter Speight Seed Farms, to referred Inc. defendants"), as "the Speight and John Milton Beaman and defendant Emma Ortega in furtherance of their settlement agreement to Certify This Action As a Rule 23 (b) (3) their joint motion, and FLSA collective action. the named plaintiffs have filed a In support of joint memorandum of law. The Court has reviewed all of the relevant pleadings and exhibits in the record concerning this motion and has determined that the named plaintiff has met his burden of proof under 29 U.S.C. 23(b) (3), for Fed.R.Civ.P., Relief ('ll'l!ll3-118), U.S.C. §§ ("NCWHA"), (Doc. 35 201 et and Rule to have the plaintiff's Third and Fourth Claims at pursuant §216(b) 8-9 to seq., N.C.Gen.Stat. ('l!'l!22-23), the Fair and the at Labor North §§95-25.1 et 14 ('l!'l!35-36), Standards Carolina seq. action under Rule 23 (b) (3) Act Wage certified purposes as a collective action under 29 U.S.C. and at 39-41 ("FLSA"), and for § 216(b), Hour 29 Act settlement and a class against the Speight defendants for the time period from March 27, 2011 through December 31, 1 2012. Collective action certification is allowed under §216 (b) filed a written Consent to Sue for only those persons who have pursuant to 29 U.S.C. §216(b) on or before the date this Court files any Order approving the terms of the proposed settlement between the named plaintiff, collective action he has been certified to represent, the class and and the Speight defendants. The Fourth Claim for Relief alleged against the Speight defendants by the named plaintiff and the members of the FLSA collective action he seeks to represent is a collective action for liquidated damages under the FLSA, 29 U.S.C. §§206(a) and 216(b). In that Fourth Claim for Relief against the Speight defendants, the plaintiff seeks liquidated damages based on the alleged failure of defendants John Milton Beaman, Seed Farms, Inc. Speight (hereinafter referred to as the "Speight defendants"), and defendant Emma Ortega to pay wages at the rate required by 29 U.S.C. § 206 (a) to the plaintiff and all members of the collective group of persons defined in ~~22-23 of the Second Amended Complaint as follows: Each person jointly or severally employed by one or more of the Speight defendants to perform temporary agricultural work under the H-2A program at any time in the time period from March 27, 2011 until December 31, 2012 who was paid at less than the minimum rate required by the FLSA for all hours worked for any workweek in that same time period based upon certain savings plan wage deductions. Doc. 35 at 8-9 (~~22-23). The Third Claim for Relief alleged against those same defendants is a statutory claim for back wages and liquidated damages under the NCWHA, N.C.Gen.Stat. 25.22 (a1) §§ 95-25.6, based upon the 95-25.8((a) (1) and Speight defendants' 95-25.8(b) (1), failure to and 95- pay promised wages to the plaintiff and the class members at the minimum wage rate the defendants disclosed to them pursuant 25.13(1)-(2) and 20 C.F.R. § 655.135(e). 2 to N.C.Gen.Stat. §§ 95- In that Third Claim for Relief against the Speight defendants, the plaintiff seeks liquidated damages based on alleged failure of the Speight defendants to pay wages at the minimum rate for promised wages that the Speight defendants disclosed to the plaintiff and all defined in members of the Rule 23 (b) (3) class of persons of the Second Amended Complaint as follows: ~~35-36 Each person jointly or severally employed by one or more of the Speight defendants to perform temporary agricultural work under the H-2A program at any time in the time period from March 27, 2011 until December 31, 2012 who was not paid all wages when due in violation of N.C.Gen.Stat. Section 9525.6 based upon certain savings plan wage deductions. Doc. 3 5 at 14 (~V5-36). Pursuant to the terms of a settlement of this action between the parties, the parties have stipulated to class certification of the plaintiff's NCWHA claim for the time period from March 27, 2011 through December 31, 2012, the last date on which the Speight defendants engaged in the savings plan wage deductions that are alleged in the Complaint and described in this Order. evidence before the Court, Based upon that the Court finds stipulation and other that the plaintiffs' NCWHA stipulated class consists of the 33 persons that are listed in Exhibit A attached to the Settlement Agreement between the parties. named plaintiff §216 (b) and has filed a written consent to sue To date, under there are other "similarly situated" members 29 the U.S.C. of the FLSA collective action that the named plaintiff seeks to pursue against the Speight defendants. All of the NCWHA and statutory FLSA class members are non-English speaking, visas who, within transient Mexican national workers with H-2A by the terms of those H-2A visas, this district or the USA. The do not reside permanently Court finds that the named plaintiffs and the workers in the FLSA collective action of employees that the plaintiffs seek to represent 3 under 29 U.S.C. § 216(b) are "similarly situated" within the meaning of sufficiently numerous that Civil Action No. filed May 11, at *9 512, 576-77 of 2012) (Doc. (E.D.N.C. as few '1!37 of the v. WF Partnership, et al., Order of Class Certification 5:05-CV-34-FL, 21, 2007 U.S.Dist.LEXIS 93860, Leyva v. 2007); Buley, 125 F.R.D. See also Haywood v. Barnes, 109 F.R.D. 568, 1989). 1986) (citing case authority in which classes as Fed. R. Civ. P.). et al. (E.D.N.C. Order filed Dec. (E.D.Wa. and are at 3-4; Vincente Jimenez-Orozco v. Baker 43-2), Civil Action No. (E.D.N.C. 514-15 5:10-CV-215-BO §216(b), collective action certification under Bulmaro Ceras-Campo, statute. Roofing Co., to warrant 29 U.S.C. 18 persons were certified The Court also agrees Amended Complaint (Doc. with 35 at under the Rule factual 14-15) composed 23 (b) (3), allegations and finds that in the class of persons that the named plaintiff seeks to represent under Rule 23(b) (3), Fed.R.Civ.P., under the NCWHA (Doc. with respect 35 at 39-40 to their (']['][113-115)) Third Claim for Relief is sufficiently numerous and adequately defined to meet the standard for numerosity set forth in Rule 23 (a) ( 1), Case No. I d. 2:04-cv-567-FtM-33DNF, (M.D.Fla. in Fed. R. Civ. P. filed April 25, action under Arriaga See also Avila -Gonzalez v. 2005 U.S.Dist.LEXIS 44805, Barajas, at *9-*10 2008) (holding same for class of H-2A workers v. Florida Court Pacific Farms, finds LLC, 305 F. 3d 1228 (llthcir. 2002)). In addition, the under Rule 23(a) (2), Fed.R.Civ.P., that the questions of law or fact common to the NCWHA class alleged in '1!'1!38(a)-(c) of the Second Amended Complaint (Doc. 35 at 15-16) do exist with respect to the individual claims by the named plaintiff set forth in Third Claim for Relief under the plaintiff's Second Amended Complaint. v. WF Partnership, et al., Civil NCWHA is alleged See Bulmaro Ceras-Campo, Action 4 that No. 5:10-CV-215-BO in the et al. (E.D.N.C. Order of Class Certification filed May 11, Vincente Jimenez-Orozco v. 34-FL, 21, Baker Roofing Co., 2007 U.S.Dist.LEXIS 93860, 2007); Haywood Leyva v. v. Avila-Gonzalez Buley, 109 Barnes, v. for Pacific class F.R.D. Farms, H-2A LLC, 305 F.R.D. 568, 43-2), at Civil Action No. (E.D.N.C. 512, 576-77 514-15 (E.D.N.C. 4-5; 5:05-CV- Order filed Dec. (E.D.Wa. 1986). 1989); See also 2005 2:04-cv-567-FtM-33DNF, No. Case Barajas, of at *9-*11 125 U.S.Dist.LEXIS 44805, at *12-*14 same 2012) (Doc. (M.D.Fla. filed April 25, 2008) (holding workers in F. 3d 1228 action under (11th Cir. Arriaga 2002)) . v. Florida Similarly, the claim of the named plaintiff under the NCWHA is typical of the NCWHA claim of the class members that the named plaintiff seeks to represent. See Bulmaro Ceras-Campo, et al. No. WF Partnership, et al., Civil Action v. 5:10-CV-215-BO (E.D.N.C. Order of Class Certification filed May 11, 2012) (Doc. 43-2), at 5-6; Jimenez-Orozco v. Baker Roofing Co., supra, 2007 U.S.Dist.LEXIS 93860, at *11-*12, Leyva v. Buley, supra; Haywood v. 109 Barnes, supra, F. R. D. at 577-78. 2005 U.S.Dist.LEXIS 44805, See also at *10-*12 Avila-Gonzalez (M.D.Fla. v. Barajas, filed April 25, 2008) (holding same for class of H-2A workers in action under Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002)). The court's determination on typicality is based upon evidence that indicates that the named plaintiff alleges that the Speight defendants, as an alleged joint employer of the named plaintiff and the class he seeks to represent, allegedly did not pay them wages at the minimum rate that the Speight defendants disclosed contracts and pursuant to 29 C.F.R. § in their clearance job order 516.4 for various workweeks when those wages were due for the agricultural work that they performed under the H-2A program in the ending with December 31, time period beginning on March 2012. 27, 2011 and This finding of typicality is further 5 supported by the plaintiff's allegation and documentary evidence that the Speight defendants violated their disclosures under N.C.Gen.Stat. §§ 95-25.13(1)-(2) detailed in the clearance order job contract and in the posting they made pursuant to 29 C.F.R. § 516.4 with the named plaintiff and the class he seeks to represent to pay wages when due (in their alleged capacity as joint employers of the plaintiff and the class) the minimum rate required by the FLSA in violation of G. S. at §95-25. 6 based upon certain wage deductions for wage savings plan system operated by the Speight defendants. The commonality or similarity that the named plaintiff shares with those class members he seeks to represent lies in the fact that the issues raised in the claims of the named plaintiff are common to those of the persons whom he seeks to represent with respect to the following issues: ( 1) Did the Speight defendants violate their disclosures as to promised wages made pursuant to N.C.Gen.Stat. §§ 95-25.13(1)-(2) that they were going to pay all wages due on each regular weekly payday at the minimum rate described in 29 U.S.C. § 206(a) and in the written disclosures that the Speight defendants made in the clearance order job contracts that the Speight defendants had with the named Plaintiff and the class and subclass defined in making involuntary and/or ~36 voluntary of the Second Amended Complaint by wage deductions from the weekly wages that were due each of the named Plaintiff and the members of the class and subclass defined in ~36 of the Second Amended Complaint as part of an alleged wage savings plan? (2) Did the Speight defendants violate any of the wage payment provisions of N.C.Gen.Stat. Tit. 12 ("NCWHA") §§ .0305(a)-(c) §§ 95-25.6 and 95-25.8(a) of the North Carolina Wage and 13 N.C.A.C. and Hour Act applicable to all of the named Plaintiff and the class and 6 subclass defined in ~36 of the Second Amended Complaint by making involuntary and/or voluntary wage deductions from the weekly wages that were due each of the named Plaintiff and the members of the class and subclass defined in ~36 of the Second Amended Complaint as part of an alleged wage savings plan? (3) the Were Speight the involuntary and/or voluntary wage defendants made from the weekly wages deductions that that were due the named Plaintiff Hernandez and the members of the subclass defined in ~36 of the Second Amended Complaint made in violation of N.C.Gen.Stat. 95- 25.6 and 95-25.8(a) 1 13 N.C.A.C. and/or 20 C.F.R. (4) Did Tit. 12 655.122(m) 1 and 20 C.F.R. § any of the weekly .0305(a)-(c) §§ wage § and .0305(g)1 655.122(p) (1) (2010)? § deductions that the Speight defendants made from the weekly wages paid free and clear to the named ~36 Plaintiff and each member of the class and subclass defined in of the Second Amended Complaint reduce the net weekly wage paid to those same workers below the minimum rate required by 29 U.S.C. the minimum rate required by 20 C.F.R. violation of N.C.Gen.Stat. Complaint disclosures §§ (~~113-115) as 95-25.13(1)-(2)) (defining affected and class or See Third Claim for Relief ~~90-91 1 promised to 206(a) 655.120 for the hours worked in § the relevant workweek by each such worker? in Second Amended Complaint § wages of ~~35-36 for and 100-102 this made the (alleging pursuant Second particular to Amended claim for relief) . The plaintiff is an adequate representative of the class under Rule 23(a) (4) 1 Fed.R.Civ.P. Present counsel for the plaintiff experienced attorney who has litigated other class actions. Bulmaro Ceras-Campo, et al. v. WF Parnership, et al. 1 supra See, is an e. g., (Robert J. Willis counsel for class action involving more than 100 H-2A workers) ; 7 Jimenez-Orozco v. Baker Roofing Co., supra (Robert J. Willis counsel for Haywood v. class action involving close to 1, 000 workers); Barnes, 109 F.R.D. at 573 and 579 (Robert J. Willis acts as counsel for class action involving migrant almost demonstrates this 800 that and litigation throughout the this associated with named made workers) plaintiff himself transient, affidavit has of maintained available despite litigation his An the impoverished, to lead his counsel interest plaintiff's communication in counsel handicaps and non-English speaking the requirements status as a resident and national of Mexico. Therefore, 23(a) Court finds that all of for certification of class action have been met. determination, fact the the common to Court further the class members determines that of Rule Having made this questions of law or in the plaintiff's NCWHA class claim predominate over any questions affecting only individual class members, and that a class action is superior to other available methods for the See Bulmaro Ceras- fair and efficient adjudication of this controversy. Campo, et al. v. WF Parnership, et al., Baker Roofing Co., v. Buley, supra; in (11th Arriaga Barnes, supra, 109 93860, F. R. D. at at *13-*15, See 577-78. 2005 U.S. Dist. LEXIS 44805, Leyva also at *15-*20 2008) (holding same for class of H-2A workers v. Florida Pacific Farms, LLC, 305 F. 3d 1228 Cir. 2002)). This fact Barajas, filed April 25, action under 2007 U.S.Dist.LEXIS Haywood v. Avila-Gonzalez v. (M.D. Fla. supra, supra, at 6-7; Jimenez-Orozco v. finding is based upon the total absence of any questions of affecting any individual class members with respect to the NCWHA claim of the NCWHA class members and the common issues that the named plaintiff and the NCWHA class members all share: ( 1) Did the Speight defendants violate their disclosures as to promised wages made pursuant 8 to N.C.Gen.Stat. 95-25.13(1)-(2) §§ that they were going to pay all wages due on each regular weekly payday at the minimum rate described in 29 U.S. C. 206 (a) § and in the written defendants made in the clearance order defendants had with defined 'TI36 of in the the named disclosures that the Speight job contracts that the Speight Plaintiff and the Second Amended Complaint? class (2) Did and subclass the Speight defendants violate any of the wage payment provisions of N.C.Gen.Stat. §§ 95-25.6 and 95-25.8(a) and 13 N.C.A.C. Tit. 12 §§ .0305(a)-(c) of the North Carolina Wage and Hour Act ( "NCWHA") applicable to all of the named Plaintiff and the class and subclass defined in 'TI36 of the Second Amended Complaint by making involuntary and/or voluntary wage deductions from the weekly wages that were due each of the named Plaintiff and the members of the class and subclass defined in 'TI36 of the Second Amended Complaint as part of an alleged wage savings plan? (3) Were the invol- untary and/or voluntary wage deductions that the Speight defendants made from the weekly wages the members of the that were due the named Plaintiff Hernandez and subclass defined in 'TI36 Complaint made in violation of N.C.Gen.Stat. 13 N.C.A.C. Tit. 12 §§ .0305(a)-(c) and § of wage weekly wages deductions paid free that the .0305(g), Speight and clear to the Second Amended 95-25.6 and 95-25.8(a), 655.122(m), and 20 C.F.R. § 655.122(p) (1) (2010)? weekly the and/or (4) Did defendants named 20 C.F.R. any made Plaintiff § of the from the and each member of the class and subclass defined in 'TI36 of the Second Amended Complaint reduce the net weekly wage paid to those same workers below the minimum rate required by 29 U.S.C. required by 20 C. F. R. § 655. 120 for workweek by each such worker? Amended Complaint ('TI'TI113-115), See § 206(a) the minimum rate the hours worked in the Third Claim for 'TI'TI90-91 and 100-102 9 or Relief relevant in Second (alleging violation of disclosures as 95-25.13 ( 1)- (2)) to promised wages made pursuant to N.C.Gen.Stat. and ']['][35-36 of the Second Amended Complaint §§ (defining A single lawsuit affected class for this particular claim for relief) . to resolve the claims of all of these workers is superior to the pursuit of multiple lawsuits over those same claims as it will allow for a more efficient resolution of all of those claims in one court while avoiding the possibility of inconsistent results. Accordingly, Third Claim 23(b) (3), 2011 to for the joint motion for certification of the plaintiff's Relief under Fed.R.Civ.P., December 31, the NCWHA as is GRANTED for 2012 definition set forth above. for those a class action under Rule the time period from March 27, persons included in the class The joint motion for class certification of the FLSA collective action that is defined above under the FLSA is also GRANTED with respect to all those Consent to Sue under 29 U.S.C. persons §216(b) who have filed a written on or before the date on which the Court files any Order approving the terms of the proposed settlement between the named plaintiff and the Speight defendants. The named plaintiff shall provide certification of both the Rule 23 (b) (3) written notice class and the of this statutory class under 29 U.S.C. §216(b) and the terms of the proposed settlement of that Rule 23 (b) (3) this Court Spanish for members by valid, class and statutory class in a Notice to be approved by in English. That distribution U.S. Mail, to first all Notice shall putative class then class delivery, be and translated collective postage prepaid, into action to the last known address of each class and collective action member on or before the date falling thirty (30) days after the date on which the Court approves the content and method of notice distribution to those class and FLSA collective action members in this case. 10 I To facilitate the direct mailing action that defendants the and to the members Court has defendant of the certified Emma Ortega class in shall and this FLSA collective Order, provide the the Speight plaintiff's counsel with any information in the possession of defendants John Milton Beaman, Speight Seed Farms, Inc., and/or Emma Ortega as to the valid, last known mailing address of each class member within fifteen (15) days of the date of this order to allow the plaintiff to provide that notice. In addition, within sixty (60) days after the date on which the Court approves the content and method of notice distribution to the class and collective action members in this case, defendants John Milton Beaman and Speight Seed Farms, Inc. shall provide by hand delivery a summary of the Notice to Class approved by the Court to each member of the class and/or FLSA collective action certified by the Court who is employed by one or more of the Speight defendants program in 2014 where that member(s) to work under the H-2A is actually residing on property that is owned or controlled by one or more of the Speight defendants. IT IS SO ORDERED. DONE and ORDERED at _jJ_ day of North Carolina, ..,_,..&'-ff"'=-~-· ...___ _ 11 this the

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