Aguilar-Gamas v. Scott Farms, Inc., et al

Filing 84

ORDER granting 80 Joint Motion to Certify Class - Signed by District Judge Louise Wood Flanagan on 12/24/2014. (Baker, C.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CASE NO.: 5:13-CV-447-FL

MAURICIO AGUILAR GAMAS and ANGEL
MARTINEZ on behalf of themselves
and all other similarly situated
persons,
Plaintiffs,
v.
SCOTT FARMS, INC., ALICE H. SCOTT,
LINWOOD H. SCOTT, JR., LINWOOD H.
SCOTT III, and DEWEY R. SCOTT,
Defendants.
_________________________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER APPROVING CLASS AND COLLECTIVE ACTION CERTIFICATION
UNDER RULE 23(b)(3) AND 29 U.S.C. § 216(b)
This matter is before the Court on the parties’ joint motion for class and collective
action certification. The Plaintiffs’ Amended Complaint, filed on August 27, 2013,
alleges claims for relief under three legal theories. DE 9. The first is a collective action
claim for minimum wage and overtime violations under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq. The second is a class action claim pursuant to Rule
23(b)(3), Fed. R. Civ. P., for failure to pay the promised wage under the North Carolina
Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. §§ 95-25.1 et seq. The final claim is a
second class action claim under Rule 23 for violations of the Migrant and Seasonal

1

Agricultural Worker Protection Act (“AWPA”). 29 U.S.C. §§ 1801, et seq. Defendants
denied liability for all claims in their Answer.
The Plaintiffs and Defendants have negotiated a settlement agreement in this
action which includes relief on a class wide basis for the Plaintiff Aguilar Gamas’s claims
under the AWPA and relief for a collective action of similarly situated employees for
Plaintiffs Aguilar Gamas and Martinez’s overtime claims under the FLSA. For
settlement purposes only, Defendants consent to and join in the Joint Motion for Class
and Collective Action Certification under Rule 23(b)(3) and 29 U.S.C. § 216(b) (“Joint
Motion”) pursuant to the Settlement Agreement reached between the parties. DE 78-2.
Accordingly, pursuant to the Settlement Agreement, the parties now seek to
certify a Plaintiff Class under the AWPA for statutory damages under 29 U.S.C. §
1854(c)(1) and Rule 23(b)(3), Fed. R. Civ. P., and to certify a collective action under the
FSLA for back wages and liquidated damages. 29 U.S.C. §§ 207 and 216(b).
The parties move under Rule 23(b)(3), Fed.R.Civ.P., for certification of a class
represented by Plaintiff Aguilar Gamas and defined as follows:
all migrant or seasonal agricultural workers (as the terms “migrant
agricultural worker” and “seasonal agricultural worker” are defined in 29
U.S.C. §§ 1802(8) and 1802(10) and 29 C.F.R. §§ 500.20(p) and
500.20(r)) who performed temporary or seasonal work in agriculture as an
employee of Scott Farms and/or the individual Scott defendants between
June 20, 2010 and September 15, 2014 and who were paid on a piece rate
during any workweek during that time period.
DE 9 at ¶42; DE 78, pp. 5-6.
The parties also jointly move the Court for certification of an opt-in class
under 29 U.S.C. § 216(b) for Plaintiff Aguilar Gamas and Martinez’s claims
under 29 U.S.C. § 207 (“FLSA Collective Action”), defined as follows:

2

Any person who was employed by Scott Farms, Inc. and/or the individual
Scott defendants in Scott Farms, Inc.’s packing house in or around Wilson
County, North Carolina in any workweek ending in the time period from
June 20, 2010 through September 15, 2014 who worked in excess of 40
hours in any workweek when, during that same workweek, that same
person also processed or packed any sweet potatoes that were not grown
and produced in connection with the farming operations of Scott Farms,
Inc.
DE 9 at ¶¶ 21-22; DE 61 at ¶2; DE 78, p. 6.
Defendants are a farm and its corporate officers. They employed named Plaintiff
Aguilar Gamas and the putative members of the Rule 23 class as field workers, and at times
compensated them on a piece rate basis. Plaintiffs allege that at times these piecerate
workers were not paid the minimum wage for all hours worked in a single workweek.
Defendants also employed both named plaintiffs and the putative members of the
collective action in their packinghouse, where they were paid a straight hourly wage for all
hours worked, including those hours worked over forty in a single workweek. Plaintiffs
allege that they were entitled to overtime pay for all hours over forty in any workweek in
which Defendants packed or processed sweet potatoes supplied by certain outside growers.
Plaintiffs also alleged that Defendants’ recordkeeping and pay practices were in
violation of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”).
I.

CLASS CERTIFICATION MOTION
When a settlement is reached prior to Rule 23 certification, the law permits a class to

be certified solely for the purposes of settlement. Covarrubias v. Capt. Charlie’s Seafood,
Inc., 2011 WL 2690531 (E.D.N.C., July 06, 2011), at *2. There is a strong judicial policy in
favor of settlement. See Bennett v. Behring Corp., 737 F. 2d 982, 986 (11th Cir. 1984). The
parties seeking class certification must still meet the four prerequisites of Federal Rules of
Civil Procedure 23(a)(1) through (4) and then must establish that they constitute a proper
3

class of at least one of the types delineated in Rules 23(b)(1) through (3). However, in those
cases, courts do not need to inquire whether the class will be manageable at trial because the
settlement makes a trial unnecessary. Anchem Products v. Windsor, 521 U.S. 591, 620
(1997).
As detailed below, Plaintiffs’ Amended Complaint and the information submitted in
support of the Joint Motion are sufficient to satisfy the requirements of Rule 23(a) and
establish that the Class Plaintiffs seek to represent also qualify under Rule 23(b)(3).
A. Named Plaintiff Aguilar Gamas is a Member of and has Precisely Defined the Plaintiff
Class He Seeks to Represent.
The court must make two initial determinations before determining whether to
certify a class action: that a precisely defined class exists, Haywood v. Barnes, 109 F.R.D.
568, 576 (E.D.N.C. 1986), and that the class representative is a member of the proposed
class. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
The AWPA Class is defined as
all migrant or seasonal agricultural workers (as the terms “migrant
agricultural worker” and “seasonal agricultural worker” are defined in 29
U.S.C. §§ 1802(8) and 1802(10) and 29 C.F.R. §§ 500.20(p) and
500.20(r)) who performed temporary or seasonal work in agriculture as an
employee of Scott Farms and/or the individual Scott defendants between
June 20, 2010 and September 15, 2014 and who were paid on a piece rate
during any workweek during that time period
and is therefore sufficiently precise. Haywood, 109 F.R.D. at 576. Plaintiff Aguilar Gamas
worked for Defendants as a piece rate migrant and/or seasonal agricultural worker during
the relevant time period. Therefore, he is clearly a member of the AWPA Class which he
seeks to represent.

4

B. The Numerosity, Commonality, Typicality and Adequacy Requirements of Rule 23(a)
are Satisfied with regard to the Class.
A class action under Rule 23, Fed.R.Civ.P., “may only be certified if the trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982) (“Falcon”). Thus,
“Falcon requires the trial court to engage in an extensive factual analysis at the certification
stage in order to satisfy itself that the requirements of Rule 23 have been met.” Haywood,
109 F.R.D. at 575. However, the trial court does not examine the merits of the underlying
claims when it decides a motion for class certification. Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 177-78 (1974); see also Covarrubias., 2011 W 2690531, *3.
Courts should “give Rule 23 a liberal rather than a restrictive construction, adopting
a standard of flexibility in application which will in the particular case best serve the ends of
justice for the affected parties and . . . promote judicial efficiency.” Gunnells v. Health Plan
Services, Inc., 348 F.3d 417, 424 (4th Cir. 2003) (citing In re A.H. Robins, 880 F.2d 709,
740) (4th Cir. 1989), cert. den., Anderson v. Aetna Cas. and Sur. Co., 493 U.S. 959
(1989)), cert. den., Healthplan Services, Inc. v. Gunnells, 542 U.S. 915 (2004); see also
Kidwell v. Transportation Communications International Union, 946 F.2d 283, 305 (4th
Cir. 1991), cert. den., 503 U.S. 1005 (1992) (“[t]rend is to give Rule 23 a liberal
construction.”); Rodger v. Electronic Data Systems Corp, 160 F.R.D. 532, 535 (E.D.N.C.
1995).
1. The AWPA Class is sufficiently numerous and joinder is impracticable.
The numerosity requirement of Rule 23(a)(1), Fed.R.Civ.P., mandates that the class
be “so numerous that joinder of all members is impracticable.” There is no set number of
members necessary for class certification and the decision to certify or not certify a class
5

must be based upon the particular facts of each case. See Haywood, 109 F.R.D. at 576-77
(courts have "certified classes composed of as few as eighteen… and twenty-five members")
(citations omitted).
The proposed settlement class includes more than 800 people who worked for
Defendants on a piece rate basis. Although there are a sufficient number of putative class
members to establish numerosity, this Court’s analysis should not be limited to numbers
alone. See Rodger, 160 F.R.D. at 536-537. Here, the presumption of numerosity should
also stand because joinder of all members of the class is all but impossible. Where, as in
this case, class members are geographically dispersed, lack sophistication, and are nonEnglish speaking migrant workers, courts have found that such additional factors make
joinder impracticable. See Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F.Supp.2d
117, 130 (EDNC 2011); Covarrubias, 2011 WL 2690531 at 4; Rodriguez v. Berrybrook
Farms, Inc., 672 F. Supp. 1009, 1013-1014 (W.D. Mich. 1987); Leyva v. Buley, 125 F.R.D.
512, 515 (E.D.Wash. 1989).
Furthermore, Plaintiffs contend that the named Plaintiffs and members of the AWPA
Class are “economically disadvantaged, making individual suits difficult to pursue.”
Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). Because the number of class
members is sufficient and the circumstances do not make joinder a practical alternative, the
class meets the Rule 23(a)(1) standard for numerosity.
2. There are common questions of law and fact.
Under the "commonality" requirements of Rule 23(a)(2), Fed.R.Civ.P., at least one
common question of law or fact must exist among class members. See Haywood, 109
F.R.D. at 577-78. It is not necessary, however, that all of the questions of law or fact in a
case be common to all putative class members, but only that “a single common question . . .
6

exist.” Rodger, 160 F.R.D. at 537.. “Indeed, a single common question is sufficient to
satisfy the rule.” Haywood, 109 F.R.D. at 577. In Hernandez Garcia, the named Plaintiffs
were crab workers who had claims related to payment for housing and knives that were not
shared by dock workers. However, the Court found there were common issues of law and
fact between the Plaintiffs and the dock workers related to payment of visa and
transportation costs such that commonality existed. See Hernandez Garcia Order at 5; see
also, Haywood, 109 F.R.D. at 577 (holding that “class certification will not be defeated
solely because there are some factual variations among the members’ grievances”).
Here, named Plaintiff Aguilar Gamas and the other putative class members were all
paid on a piece rate basis and share common questions of law or fact: (a) for each
agricultural season between June 20, 2010 and September 15, 2014, did Scott Farms
and/or the individual Scott defendants employ plaintiff Aguilar and the members of the
putative class as migrant or seasonal agricultural workers under the AWPA? (b) for each
agricultural season between June 20, 2010 and September 15, 2014, did Scott Farms
and/or the individual Scott defendants violate the recordkeeping and wage statement
provisions of 29 U.S.C. §§ 1821(d)(1)(B)-(D), 1821(d)(2), 1831(d)(1)(B)-(D), 1831(d)(2)
of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”) by failing to
disclose, make, and preserve wage statements and records which accurately disclosed and
recorded the number of piecework units earned, the hours worked, and the total pay
period earnings for the named plaintiff Aguilar and the members of the putative class?
See Amended Complaint, ¶ 44. Therefore, the commonality requirement is satisfied.
3. The named Plaintiffs’ claims are typical of those of the Class.
Rule 23(a)(3) requires that the claims or defenses of the representative parties are

7

typical of the claims or defense of the class. Haywood, 109 F.R.D. at 578. “The claim of a
party is typical if it arises from the same event or course of conduct which gives rise to the
claims of other class members and is based on the same legal theory.” Id. “[T]he
requirements of commonality and typicality tend to merge” in that “[b]oth serve as
guideposts for determining whether under particular circumstances maintenance of a class
action is economical and whether the named plaintiff’s claims and the class claims are so
interrelated that the interests of the class members will be fairly and adequately protected in
their absence.” Falcon, 457 U.S. at 157 n.13. The typicality requirement does not require
that all of the putative class members share identical claims. Rodger, 160 F.R.D. at 538 (“A
court may determine that the typicality requirement is satisfied even when the plaintiffs’
claims and the claims of the class members are not identical”). The prerequisite is only that
Plaintiffs’ claims be common, and “class representatives must not have an interest that is
antagonistic to that of the class members.” Id.
The facts alleged in Plaintiffs’ Amended Complaint and named Plaintiff Aguilar
Gamas’s declaration meet the requirements of Rule 23(a)(3) with respect to the AWPA
Class. Plaintiff Aguilar Gamas’s claims and the claims of the AWPA Class members arise
from the same practices and course of conduct by Defendants. Plaintiff Aguilar Gamas and
the members of the proposed AWPA Class were all employees of Defendants and they were
all paid on a piece rate basis during at least part of their employment. Defendant Scott
Farms admits that on some occasions between June 20, 2010 and January 1, 2012 they
provided start and stop times for piece rate work that were estimated “and so may have been
inaccurate.” See Responses to Plaintiffs’ Third Requests for Admission, ¶¶ 20-21 (DE 795). Defendant Scott Farms also admits that on some occasions between June 20, 2010 and

8

January 1, 2012 “it did not make, keep, and/or preserve accurate records of the start and stop
times for work done by Plaintiff Mauricio Aguilar-Gamas [sic] and more than 50 other field
workers who were performing piece rate work as employees of Scott Farms, Inc.” See id. at
¶¶23-24.
The claims of the named Plaintiffs and proposed AWPA Class members are based
on the same legal theory. Defendants were required under the AWPA to make, keep, and
preserve accurate records of the number of piecework units earned and the number of hours
worked. 29 U.S.C. §§ 1821(d)(1)(B)-(C), 1831(d)(1)(B)-(C). Defendants were also
required to provide to each worker for each pay period, an itemized written statement
which included the number of piecework units earned and number of hours worked. 29
U.S.C. §§ 1821(d)(2), 1831(d)(2). Defendant Scott Farms has admitted that it failed to do
this. Therefore, Plaintiff Aguilar Gamas has established that the claims under the AWPA
are "typical" of the claims of the Plaintiff Class he seeks to represent.
4. Named Plaintiff Aguilar Gamas is an adequate representative of the Class.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately
protect the interests of the class.” This is a two-part inquiry to determine: (1) whether the
class representatives’ claims are sufficiently interrelated to and not antagonistic with the
class’ claims and (2) that legal counsel is qualified, experienced and generally able to
conduct the litigation. Rodger, 160 F.R.D. at 539; see also Haywood, 109 F.R.D. at 578.
Plaintiff Aguilar Gamas has met these requirements with respect to the proposed AWPA
Class.
Plaintiff Aguilar Gamas meets the first requirement by demonstrating his consistent
involvement in the litigation. Id. at 578-79. Here, as in Haywood, he has a common interest

9

with class members in the litigation, possesses a personal financial stake in the outcome,
consulted regularly with Class Counsel, submitted an affidavit to the court, and participated
in a lengthy mediation to resolve these claims. Id.; Declaration of Carol L. Brooke in
Support of Joint Motion for Preliminary Approval of Collective Action and Class Action
Settlement, (“Brooke Decl.”) (DE 79-1), ¶¶ 10-11, 13. Plaintiff Aguilar Gamas understood
his obligation as class representative in the event that the Court certified this as a class action
with respect to AWPA claims. See Brooke Decl., ¶¶ 14-15.
In addition, under the arrangement between the Plaintiff and counsel, all expenses
incident to class certification can be advanced to the named Plaintiff by counsel for the
Plaintiffs, with the named Plaintiff remaining ultimately liable for such costs in the event
that the Court rejects either the Settlement Agreement or the Plaintiff’s request and motion
that the expenses involved in providing notice to the class be paid for by the Defendants.
Brooke Decl., ¶ 8; Sworn Declaration of Robert J. Willis (“Willis Decl.”) (DE 79-2offic),
¶¶ 2-3; see Haywood, 109 F.R.D. at 580 (approving such a cost advance arrangement).
Lastly, Robert Willis, Carol Brooke, and Clermont Ripley, counsel for the named
Plaintiffs, are experienced counsel who have previously been counsel in class action
litigation, including class litigation involving identical claims as asserted in the instant case.
Brooke Decl., ¶¶ 6; Willis Decl., ¶¶ 8-9. See also Covarrubias. 2011 WL 2690531 at *7.
C. The Class Satisfies the Requirements of Rule 23(b)(3).
Class certification under Rule 23(b)(3) requires that common issues of law or fact
predominate over individual issues and that the class action be the superior method of
dealing with the dispute. The factors used to make this determination are: “(A) the interest
of members of the class in individually controlling the prosecution or defense of separate

10

actions; (B) the extent and nature of any litigation concerning the controversy already
commenced by or against members of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to
be encountered in the management of a class action.” Rule 23(b)(3), Fed. R. Civ. P. See
also Haywood, 109 F.R.D. at 580-84, and 592-93.
The proposed class satisfies the requirements of (b)(3) for the reasons already stated
in Section III A and B of this memorandum of law as to Rule 23(a). See Rossini v. Ogilvy &
Mather, Inc., 798 F.2d 590 at 598 (2d Cir. 1986) (holding that satisfaction of Rule 23(a)
“goes a long way toward satisfying the Rule 23(b)(3) requirement of commonality”). Based
on the allegations in the Complaint, certification of the AWPA Class is appropriate under
Rule 23(b)(3). The legal and factual issues described in paragraphs 32 and 48 of the
Amended Complaint predominate over any individual issues of law and fact for any
Plaintiff class member.
Class treatment of the legal issues identified in this case would also be superior to
other procedures for the handling of the claims in question for a number of reasons. No
member of the AWPA Class has any necessary interest in individually controlling the
prosecution of the claims at issue in this litigation. “Additionally, because of the
relatively small amount of the wage claims in this case, no individual class member could
have any reasonable financial capability to pursue this litigation on an individual basis.”
See Gaxiola 2011 WL 806792 at 12; Hernandez Garcia Order at 6.
In addition, no other litigation concerning this matter and filed by any of the
parties involved in the present action is currently pending.
Furthermore, this Court has a substantial interest in the resolution of the issues

11

raised in this litigation occurring in one forum. Because Plaintiff and members of the
AWPA Class were all employed by the same corporate employer, Scott Farms, Inc., that
maintained payroll records and employee data for all of the field workers furnished to it
by its farm labor contractor supervisors for the entire time period covered by the AWPA
class, the management of a class action under Rule 23(b)(3) in this matter should not
present any difficulties.
II.

THE PLAINTIFFS HAVE MET THE REQUIREMENTS FOR CERTIFICATION
OF A COLLECTIVE ACTION UNDER 29 U.S.C. § 216(b)
The legal standard for evaluating the “similarly situated” requirement for a FLSA
collective action under 29 U.S.C. §216(b) is discussed in Jimenez-Orozco v. Baker Roofing
Co., 2007 WL 4568972 (E.D.N.C. Dec. 21, 2007) at*6-7; and Leyva v. Buley, 125 F.R.D.
at 518. If those standards are applied to this case, there can be no doubt that the named
plaintiffs have met them.
The collective action is based upon the claim of both named plaintiffs in ¶¶21-24
of the Amended Complaint that in the time period from June 20, 2010 to the date final
judgment is entered in this action they and other similarly situated employees of Scott
Farms, Inc. were not paid at the overtime rate required by 29 U.S.C. § 207(a)(1) for the
hours they performed or will perform work for Scott Farms, Inc. that totaled in excess of
40 hours in the same workweek when, during that same workweek, that same person also
processed or packed some sweet potatoes that were not grown and produced in
connection with the farming operations of Scott Farms, Inc. Plaintiffs’ argument that
they were similarly situated with the putative members of the collective action is outlined
in Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion to Conditionally
Certify a Fair Labor Standards Act Collective Action and to Authorize Notice to be
12

Issued to the Putative Members of the FLSA Collective Action. De 62 at 12-13 and 2022. Solely for purposes of this joint memorandum and proposed settlement, the parties
jointly adopt and incorporate the Plaintiffs’ previously filed Memorandum.

III.

CONCLUSION
For the reasons set forth above, the parties’ Joint Motion for Class and Collective
Action Certification is GRANTED.

This the 24thday of _______________ 201__.
___
December
4

____________________________________
U.S. District Judge

13