Harris v. Paragon Contractors et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting Report and Recommendations re 2 Motion to Compel ; adopting Report and Recommendations re 21 Report and Recommendations. Signed by Judge Robert J. Shelby on 08/21/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION

THOMAS E. PEREZ, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,
PETITIONER,

ORDER ADOPTING MAGISTRATE’S
DECISION AND RECOMMENDATION TO
ENFORCE ADMINISTRATIVE SUBPOENA
AGAINST RESPONDENTS PARAGON AND
JESSOP

v.
Case No. 2:13-cv-281 RJS
PARAGON CONTRACTORS
CORPORATION, et al.,
The Honorable Robert J. Shelby
RESPONDENTS.
The United States Department of Labor seeks to enforce a number of administrative
subpoenas that it has issued in the course of an investigation into possible child labor practices at
the Southern Utah Pecan Ranch (SUPR). Respondent Brian Jessop is the President of
Respondent Paragon Contractors Corporation, a company that has a contract to harvest the
pecans at the ranch. Mr. Jessop is a member of the Fundamentalist Latter-Day Saints (FLDS)
community and lives in Hildale, Utah.
On May 21, 2013, the Honorable Evelyn Furse held a hearing on an Order to Show Cause
that the court issued in this matter. On June 20, 2013, Judge Furse issued a Decision and
Recommendation, in which she recommended that the court enforce the administrative
subpoenas against Paragon and Mr. Jessop. The Respondents timely objected to portions of
Judge Furse’s ruling under 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure. The court has carefully reviewed these objections de novo and finds that they are
without merit.

Mr. Jessop principally objects to Judge Furse’s finding that “Mr. Jessop’s claimed lack of
knowledge is disingenuous.” (Decision and Recommendation, at 2.) Mr. Jessop claims that he
does not know anything about the people who participated in the harvest of pecan nuts that were
lying on the ground. The contract between Paragon and the pecan farm directs Paragon to
“manage and operate the pecan groves until the pecans have been harvested.” Mr. Jessop claims
that the harvest only means the mechanized harvesting activities, and that Mr. Jessop does not
know what happens to the remaining nuts. But Judge Furse correctly noted that, despite Mr.
Jessop’s distinction between “tree nuts” and “ground nuts,” no language in the contract makes
this distinction. On the contrary, Paragon had a financial incentive to collect as many ground
nuts as possible. Paragon received 70% of the proceeds of the nut sales, which included both
tree nuts and ground nuts. (Petitioner’s Brief, Ex. A ¶¶ 9-14, Dkt. No. 3.) Given these facts, it is
unlikely that Mr. Jessop had no idea what happened to the ground nuts after the mechanized
harvesting was complete.
Judge Furse’s finding that Mr. Jessop’s lack of knowledge was disingenuous is further
supported by Mr. Jessop’s inconsistent testimony during the subpoena proceedings. At first, Mr.
Jessop claimed to have no knowledge of what happened to the ground nuts. (Jessop Tr.,
Petitioner’s Brief, Ex. B, at 13, 16, 76-77.) But after watching CNN video coverage, Mr. Jessop
changed his testimony and stated that he was aware that FLDS families would enter the farm
property and collect the ground nuts. (Id. at 93-101.) He confirmed that this practice had taken
place for many years before Paragon’s involvement with the pecan farm and that the practice
continued once Paragon became a party to the contract. (Id. at 99.)

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The Respondents point out that it was Dale Barlow, not Mr. Jessop, who made
arrangements for FLDS families to come onto the pecan farm and gather ground nuts. While
there is some dispute over when these arrangements were made and when Paragon first
contracted with the pecan farm, the court finds that these uncertainties do not affect Judge
Furse’s evaluation of Mr. Jessop’s credibility. Even if Paragon began contracting with the pecan
farm after Mr. Barlow arranged for these families to come to the farm, it is still unlikely that Mr.
Jessop did not know anything about what was going on. After all, Paragon maintained these
arrangements and derived a profit from them.
Petitioners have provided the court with testimony from Norm Freeman, who was the
manager of the pecan farm. While this testimony was not in front of Judge Furse, Mr. Freeman’s
deposition confirms Judge Furse’s findings. Mr. Freeman testified that Paragon is responsible
for picking both the tree and ground nuts and that he specifically communicated this expectation
to Paragon. (Freeman Tr., Petitioner’s Resp., Ex. A, at 24-26, Dkt. No. 28.) He also confirmed
that any arrangement between Mr. Barlow and the pecan farm came to an end when Paragon
took over the contract. From that point forward, all nuts were collected by Paragon in exchange
for 70% of the sale proceeds. (Id. at 48-49.)
The Respondents also object to Judge Furse’s finding that “Mr. Jessop’s claim not to
know a single person who harvested ground nuts at SUPR lacks believability” and her finding
that “Mr. Jessop simply did not want to provide” the name of the FLDS Bishop in November and
December of 2012. But, on the basis of the record before it, this court makes the same findings.
It is simply not credible that Mr. Jessop is unable to name a single person who harvested the
ground nuts when that harvest resulted in Mr. Jessop and Paragon’s financial gain. Likewise,

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Mr. Jessop’s attempt to mitigate his comment that he “would rather not say” who the bishop was
is unpersuasive. Mr. Jessop claims that he meant that he would rather not say who the last
bishop was, but that he does not know the identity of the bishop in November and December of
2012. (Jessop Tr. 111-17.) The court agrees that Mr. Jessop’s testimony is unconvincing.
Finally, the Respondents argue that Paragon does not have any documents in its
possession and that it cannot be forced to produce documents that are in the possession of Mr.
Barlow. Contrary to the Respondents’ assertion, Judge Furse did not make any legal conclusions
about whether Mr. Barlow was Paragon’s agent, but merely found that Paragon does not contest
its right to demand documents from Mr. Barlow. Paragon has not yet documented any attempt to
locate documents that are responsive to the subpoena that may be in Mr. Barlow’s possession,
even though Mr. Barlow is the individual that Paragon hired to manage and operate the pecan
harvest on Paragon’s behalf. Given that an investigator observed children handing in slips of
paper as they departed the pecan farm, it is unlikely that these documents simply do not exist.
Judge Furse correctly found that Mr. Barlow may possess documents and that Paragon must
produce any documents in Mr. Barlow’s possession.
ORDER
For the reasons stated above, the court ADOPTS Magistrate Furse’s Decision and
Recommendation and hereby:
Respondent Brian Jessop
1.

Finds that Respondent Jessop failed to show cause why he should not be

compelled to comply with Petitioner’s subpoena ad testificandum;

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2.

Orders Respondent Jessop to come to Courtroom Number 477 at the U.S. District

Court for the District of Utah, Central Division, located at 350 Main Street, Salt Lake City, UT
84101, to provide testimony related to Wage Hour’s investigation, with accessibility to
Magistrate Furse should intervention from the Court become necessary, no later than 45 days
after the date of this Order;
3.

Orders that the running of the applicable statute of limitations under the Fair

Labor Standards Act is tolled from January 31, 2013, the date Respondent Jessop should have
produced the subpoenaed information, until such time as Petitioner notifies the District Court
that Respondent complied with the District Court’s order enforcing the subpoena.
Respondent Paragon Contractors Corporation
1.

Orders Respondent Paragon to make an additional concerted effort to search for

documents responsive to Petitioner’s subpoenas duces tecum, including those in possession of its
agents;
2.

Orders Respondent Paragon to document its search efforts, certify them, and file

them with the Court no later than 30 days after the date of this Order;
3.

Orders Respondent Paragon to send a representative to Courtroom Number 477

at the U.S. District Court for the District of Utah, Central Division, located at 350 Main Street,
Salt Lake City, UT 84101, to provide testimony related to Wage Hour’s investigation, including
Paragon’s efforts at document collection, and the additional known employees, with accessibility
to Magistrate Furse should intervention from the Court become necessary, no later than 45 days
after the date of this Order;

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4.

Orders that the running of the applicable statute of limitations under the Fair

Labor Standards Act is tolled from January 31, 2013, the date Respondent Paragon should have
produced the subpoenaed information, until such time as Petitioner notifies the District Court
that Respondent complied with the District Court’s order enforcing the subpoena.
DATED this 21st day of August, 2013.

BY THE COURT:

ROBERT J. SHELBY
United States District Judge

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