United States District Court, E.D. North Carolina, Southern Division
MANUEL MATEO-EVANGELIO, JAIME TREJO-CARDONA, GILBERTO CERVANTES-VEGA, REYNALDO VILLALOBOS-MARTINEZ, EMILIO REYES, MARIA DE LOS ANGELES GONZALEZ-ROMAN, RAMIRO CERVANTES-VEGA, FRANCISCO CARMELO MATIAS-CASTRO, PABLO GONZALEZ-ROMAN, BENIGNO VILLA-GOMEZ, and SERGIO NARCISO LOPEZ-JUAREZ Plaintiffs,
TRIPLE J PRODUCE, INC.; HOCUTT BROTHERS, INC.; HOCUTT FARMS, INC., JUDY HOCUTT; JOEY M. HOCUTT; JAMES MICHAEL HOCUTT; and M. JAY HOCUTT Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiffs' renewed motion
for award of attorney's fees and costs (DE 132), and the
parties' joint final report (DE 131), pursuant to consent
order entered August 1, 2017. For the following reasons,
plaintiff's motion is granted to the extent set forth
herein, and the court directs final distribution of
background of this case, as pertinent to the instant motion,
may be summarized as follows. The first two named plaintiffs
in this action filed suit on December 31, 2014, asserting
violations of federal and state fair labor standards laws,
based on alleged conduct by defendants in not paying properly
wages for overtime work packaging sweet potatoes and other
agricultural commodities. Plaintiffs amended their complaint
several times, most recently on October 7, 2015, with a third
amended complaint (the “complaint”) brought by
all of the above-named plaintiffs against the above-named
settling defendants, asserting the following claims:
1) Two class action claims 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. (3rd. Am. Compl. ¶¶ 104-109).
2) One collective action claim for minimum wage and overtime
violations under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq.
(except plaintiff Sergio Narciso Lopez-Juarez). (3rd Am.
Compl. ¶¶ 110-112).
3) One class action claim failure to pay sufficient wages in
violation of the Migrant and Seasonal Agricultural Worker
Protection Act (“AWPA”). 29 U.S.C. §§
1801, et seq. (3rd Am. Compl. ¶¶ 113-115).
4) Individual claims for wrongful discharge by plaintiff
Jaime Trejo-Cardona and for retaliation by nine of eleven
named plaintiffs. (Id. ¶¶ 116-132).
complaint seeks declaratory, injunctive, and compensatory
relief, including unpaid back wages, liquidated damages, and
statutory damages in the full amount authorized by the AWPA
($500.00 per plaintiff per violation, or up to $500, 000.00
upon class certification).
September 1, 2015, the parties executed a settlement
agreement resolving all claims. (See DE 62-1, 75-1).
The settlement agreement provides for settlement payments
totaling $328, 920.00, by defendants to the named plaintiffs
and to class members based on the class action and collective
action claims asserted in the complaint, divided as follows:
1) Payments to named plaintiffs ranging from $9, 000.00 to
$20, 800.00 each, totaling $159, 400.00. (DE 62-1 ¶1).
2) Payment of $20, 480.00 to a class of “former packing
house employees” who have “overtime claims,
” corresponding to the FLSA collective action claim
(hereinafter the “FLSA fund”) (Id.
3) Payment of $20, 400.00 to a class of “former packing
house employees” who have “corresponding
employment claims, ” corresponding to one of the NCWHA
class action claims (hereinafter the “NCWHA
fund”) (Id. ¶ 2).
4) Payment of $128, 640.00 into a settlement fund for the
benefit of “a class of plaintiffs” including
plaintiff Sergio Narciso Lopez-Juarez (the “Sergio
Class”), corresponding to the AWPA class action claim
(hereinafter the “AWPA fund”). “Upon proof
of their work, each [class member] is eligible to a
distribution of $350.00 per season, for a maximum of three
seasons, ” or up to $1, 050.00 per class member.
January 14, 2016, the court preliminarily approved settlement
of all claims, granted class and collective action
certification, and approved settlement notices. (See
Orders, DE 66, 67, 69, 71). The court held a fairness hearing
on June 6, 2016, at which no persons appeared with objections
or comments concerning the settlement. (See DE 74).
court granted final approval of the settlement and final
class notice on September 15, 2016. (See Orders, DE
85, 86, with claim forms at ¶ 81). In support of final
approval, plaintiff noted that as of September 2, 2016,
notices had been mailed to 306 potential class members.
(See claims summary, DE 80-6). At that time, the
total number of claims submitted were as follows:
1) NCWHA: 3 individuals.
2) AWPA: 21 individuals, of which 11 had been determined
“Invalid” by the class action settlement
3) FLSA: 4 individuals. (DE 80-6).
parties then filed motions regarding cy pres and
reversion of unpaid settlement funds on October 17, 2016.
Pursuant to supplemental briefing ordered December 22, 2016,
the parties submitted supplemental filings updating what
further claims had been received, as well as the parties'
positions on using Student Action With Farmworkers (SAF) as a
cy pres recipient.
counsel filed a report of class counsel, as corrected, on
June 8, 2017, which provided an update as to claims submitted
and disputes then between the parties regarding the same. (DE
110). The court held hearing on the motions and disputes then
pending, wherein the court reached decision regarding certain
issues raised and tasked the parties with developing consent
order regarding terms and procedures for processing of
remaining outstanding claims. Consent order entered August 1,
2017, set a schedule for submission of documentation to
claims administrator Simpluris, Inc., for its review and
analysis and final determination of valid settlement claims,
and directed the parties to file joint report within 30 days
of receipt of report by Simpluris, Inc., of such claims,
including invoice of fees of Simpluris and whether the unpaid
remainder of NCWHA and FLSA funds is sufficient to satisfy
such fees. (DE 129).
order entered September 29, 2017, the court denied without
prejudice plaintiffs' then-pending motion for
attorney's fees, where further developments with final
claims accounting could impact the court's consideration
of attorney's fees, and the court directed plaintiffs to
refile an updated and final motion for attorney's fees
and costs at the time of filing of the joint final report
pursuant to the consent order.
parties filed their joint final report on November 27, 2017,
and plaintiffs filed the instant renewed motion for
attorney's fees and costs that same date. Included with
the final report is a report by Simpluris, Inc., in
accordance with the consent order, listing the final
accounting of individual members of the NCWHA and AWPA
classes, and the FLSA collective action as follows:
1) NCWHA: 3 individuals (out of a fund of $20, 400.00).
2) AWPA: 19 individuals (out of a fund of $128, 640.00).
3) FLSA: 5 individuals (out of a fund of $20, 480.00).
(DE 131-1). Although not specified in either the joint final
report or the report by Simpluris, Inc., the parties are in
accord that the amount due to be paid to such class and
collective action members totals $14, 476.00, to be divided
between 19 individuals, where all members of the NCWHA and
FLSA classes are also members of the AWPA class.
(See Def's Resp. (DE 134) at 4; Pl's Reply
(DE 135) at 9; DE 131-1 at 2-5).
out of settlement award totaling $328, 920.00, $159, 400.00
was awarded and has been paid already to named plaintiffs.
This leaves for determination funds to be paid out of
remaining $169, 520.00 in settlement funds designated for
members of class and collective actions. As noted, based upon
the report by Simpluris, Inc., the parties have agreed that
$14, 476.00 is due to be paid to designated class members,
meaning that a total of $173, 876.00 has been paid or is due
to be paid to farmworkers as a result of this action. This
will leave $155, 044.00 of settlement funds remaining for
distribution as cy pres award.
the parties have stipulated in their joint final report that
the Simpluris, Inc., fees are allocated as follows:
1) $19, 009.83 of Simpluris, Inc., fees shall be paid by
2) The remaining balance of $1, 855.17 of Simpluris, Inc.,
fees shall be paid out of the unpaid remainder of the NCWHA
and FLSA funds.
upon this information provided to the court, this reduces the
remainder available for cy pres award, after distribution to
designated class members and fees to Simpluris, Inc., to
in the event Simpluris, Inc., distributes funds to all
claimants as specified, a balance of $155, 044.00 remains
from the aggregate $169, 520.00 of the class settlement
funds, of which $1, 855.17 shall be paid to Simpluris, Inc.,
and the remainder $153, 188.83 shall be paid as cy pres award
support of the instant motion for attorney's fees and
costs plaintiffs rely upon a declaration of class counsel (DE
133-1) and declarations of four local practitioners.
(See Affidavit of M. Travis Payne (DE 92-11);
Declaration of Eric L. Doggett (DE 92-10); Declaration of
Gilda A. Hernandez (DE 92-9); Declaration of Carol Brooke (DE
133-2)). Following defendants' response in opposition,
plaintiffs filed a reply, relying upon a supplemental
declaration of class counsel (DE 135-1) and supplemental
declaration of legal assistant Yoana Caceres (DE 135-2). As