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.)
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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