United States District Court, E.D. North Carolina, Western Division
RICARDO MONDRAGON, EUSTORGIO ESPINOBARROS FELICIANO, JUAN CONTRERAS, CUTBERTO ORTIZ HERNANDEZ, RAMÓN ORTIZ HERNANDEZ, ALEJANDRO JIMENEZ GONZALEZ, RENATO ROMERO ACUÑA, JOSÉ TAPIA, ANASTACIO LOPEZ SOLIS, and ABDON QUIRASCO SIXTECO, Plaintiffs,
SCOTT FARMS, INC., ALICE H. SCOTT, LINWOOD H. SCOTT, JR., LINWOOD H. SCOTT, III, DEWEY R. SCOTT, JFT HARVESTING, INC., JUAN F. TORRES, OASIS HARVESTING, INC., and RAMIRO B. TORRES, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiffs' motion to
withdraw Ramón Ortiz Hernandez (“Ramón
Hernandez”) as a named plaintiff and class
representative (DE 96), plaintiffs Renato Romero Acuna
(“Romero Acuña”) and Abdon Quirasco
Sixteco's (“Quirasco Sixteco”) motion for
conditional certification of collective action under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. 216(b)
(DE 98), and defendants Alice H. Scott, Dewey R. Scott, Scott
Farms, Inc., Linwood H. Scott III, Linwood H. Scott,
Jr.'s (“Scott defendants”) motion to seal (DE
102). Also before the court are plaintiffs' objections to
the magistrate judge's order granting Scott defendants
leave to file their amended answer (DE 127). The issues
raised have been fully briefed, and in this posture are ripe
for ruling. For the reasons that follow, plaintiffs'
motion for conditional certification is granted on the terms
set forth herein. Scott defendants' motion to seal is
granted on the terms set forth herein. Plaintiffs' motion
to withdraw plaintiff Ramón Hernandez is denied
without prejudice, and plaintiffs' objection to the
magistrate judge's order granting Scott defendants leave
to amend their answer fails.
OF THE CASE
initiated this action on July 17, 2017. Plaintiffs
subsequently amended their complaint on September 5, 2017,
December 8, 2017, and May 15, 2018. Plaintiffs assert several
different causes of action against defendants, alleging
various classes of plaintiffs have been harmed by wage and
hour violations under the Agricultural Worker Protection Act
(“AWPA”), 29 U.S.C. §§ 1801, et
seq., the North Carolina Wage and Hour Act
(“NCWHA”), N.C. Gen. Stat. §§ 95-25.1,
et seq., and FLSA collective action, 29 U.S.C.
regard to the FLSA collective action specifically, plaintiffs
Eustorgio Espinobarros Feliciano (“Espinobarros
Feliciano”), Juan Contreras (“Contreras”),
Romero Acuña, and Quirasco Sixteco seek to bring a
collective action pursuant to 29 U.S.C. § 216(b) of FLSA
for back wages, liquidated damages, and attorneys' fees
and costs for failing to pay overtime wages for work
performed in excess of 40 hours in the same workweek when all
or some part of those hours worked were not performed in
connection with the farming operations of Scott Farms, Inc.
(Compl. ¶¶ 5, 179-181). Defendants answered
plaintiffs' amended complaints on October 13, 2017, again
on January 12 and 15, 2018, again on June 4 and 12, 2018, and
finally on January 8, 2019. In each instance, defendants
denied liability to plaintiffs under FLSA.
the court's case management order in this matter set the
discovery deadline in this case for December 31, 2018, and
the motions deadline for March 19, 2019. (Case Management
Order (DE 47)). Since then, the court has granted the parties
consent motion to extend discovery to sixty days after the
end of any opt in period set by the court or after denial of
the motion to conditionally certify plaintiffs' FLSA
collective action (Order (DE 120)). The parties have also
raised several discovery disputes in this matter, which the
court most recently addressed in its order granting in part
and denying in part plaintiffs' motion to compel. (Order
Plaintiffs' Motion to Conditionally Certify the FLSA
meantime, following several months of discovery, plaintiffs
Romero Acuña and Quirasco Sixteco filed the instant
motion to conditionally certify the FLSA collective action on
behalf of themselves and all others similarly situated. (DE
98). Together with the motion, plaintiffs submit their
proposed notice to potential opt in plaintiffs
(“Proposed Notice” (DE 98-1)); proposed consent
to sue (“Proposed Consent” (DE 98-2)); and
proposed order granting conditional certification
(“Proposed Order” (DE 98-3)).
argue that the they have met the “minimal burden”
to establish their FLSA collective action should be
certified, that plaintiffs and the putative collective action
members are similarly situated, and that “putative
members of the Collective Action were subject to the same
policy or practice: [d]efendants required employees to work
in excess of 40 hours per week for a flat hourly rate without
paying them the required premium for overtime hours, during
workweeks in which they were entitled to the higher overtime
rate.” (Pl. Mem. (DE 99) at 4, 7). Plaintiffs also
argue that their proposed notice is appropriate in this case,
and should be distributed to the collective action members.
(Pl. Mem. (DE 99) at 10). Finally, plaintiffs argue that
defendants should be required to provide the names and
contact information of potential collective action members to
facilitate distribution of notice. (Pl. Mem. (DE 99) at 10).
support of plaintiffs' motion, plaintiffs attach the
declaration of plaintiff Romero Acuña (Romero
Acuña Decl. (DE 99-1)), the declaration of plaintiff
Quirasco Sixteco (Quirasco Sixteco Decl. (DE 99-2)), paystubs
for plaintiff Romero Acuña (Romero Acuña
Paystubs (DE 99-3)), and paystubs for plaintiff Quirasco
Sixteco (Quirasco Sixteco Paystubs (DE 99-4)).
defendants filed their response in opposition to the motion
to conditionally certify (Scott Def. Resp. (DE 106)).
Defendants JFT Harvesting, Inc., Juan F. Torres, Oasis
Harvesting, Inc., and Ramiro Torres (“Torres
defendants”) filed their response in opposition as
well, agreeing with the arguments advanced by Scott
defendants and providing additional arguments. (Torres Def.
Resp. (DE 107)). Defendants argue that the court should
review the motion to conditionally certify the collective
action under an “intermediate standard” because
the parties have engaged in extensive discovery, plaintiffs
are not similarly situated, distinct claims and classes
preclude conditional certification, and finally, even if
certification is proper, the content and format of
plaintiffs' proposed notice is not appropriate.
(See Scott Def. Resp. (DE 106) at 4-5). In support
of their arguments, defendants attach: 1) plaintiff Romero
Acuña's discovery responses (Romero Acuña
Disc. (DE 106-2)); 2) plaintiff Quirasco Sixteco's
discovery responses (Quirasco Sixteco Disc. (DE 106-3)); 3)
plaintiff Quirasco Sixteco deposition excerpts (Quirasco
Sixteco Dep. (DE 106-4)); 4) plaintiff Romero Acuña
deposition excerpts (Romero Acuña Dep. (DE 106-5); 5)
defendant Juan Torres (“J. Torres”) deposition
excerpts (J. Torres Dep. (DE 106-6)); 6) Rolando Uribe
(“Uribe”) deposition excerpts (Uribe Dep. (DE
106-7)); 7) Employee wages by department (Redacted Wage
Report (DE 106-8)); and 8) an email regarding discovery
disputes (Disc. Email (DE 106-9)).
their reply, plaintiffs argue that a lenient standard for
evaluating plaintiffs' motions is appropriate, that even
using an intermediate standard, plaintiffs and the putative
collective action members are similarly situated, no
individualized determination is necessary in order to
determine for which weeks overtime is owed, and H2A works are
properly included in the collective action. (See Pl.
Reply (DE 111)). Plaintiffs also argue that notice to the
collective action members is proper. (Pl. Reply (DE 111)). In
further support of their position, plaintiffs attach
additional discovery correspondence (Jackson Email (DE
111-1)), the Uribe Deposition (Uribe Dep. (DE 111-2), the
deposition of defendant JFT Harvesting (JFT Harvesting Dep.
(DE 111-3)), the deposition of defendant Oasis Harvesting
(Oasis Harvesting Dep. (DE 111-4)), and correspondence
regarding proposed notice (Notice Correspondence (DE 111-5)).
Scott Defendants' Motion to Seal
defendants filed the instant motion to seal its employee wage
reports by department, which appear to be intended as a fifth
exhibit in support of plaintiffs' motion to conditionally
certify the collective action in this case. (See
Prop. Sealed Ex. (DE 101)). Scott defendants contend that
this exhibit should be sealed pursuant to terms of the
consent protective order entered December 7, 2017, because
such materials are confidential documents containing pay
information. Defendants alternatively request that the names
of all non-party individuals should be redacted. (Def. Mot.
To Seal (DE 102)). Finally, Scott defendants argue the motion
to seal overcomes the common law presumption of access to
judicial records. (Def. Brief (DE 103)). In support of Scott
defendants' motion, they attach discovery correspondence
(Disc. Correspondence (DE 103-1)), plaintiffs'
counsel's objection to confidential designation (Pl. Obj.
(DE 103-2)), and plaintiffs' counsel's rejection of
proposed redaction of documents that are the subject of the
motion to seal (Pl. Correspondence (DE 103-3)).
responded in opposition to the motion to seal, arguing that
the documents plaintiffs seek to attach in support are not
confidential under the terms of the consent protective order.
(Pl. Resp. (DE 105)). Plaintiffs further argue that
defendants fail to overcome the common law presumption of
access to payroll documents attached to a motion for
conditional certification. (Pl. Resp. (DE 105) at 7).
Plaintiffs do not address whether redaction is a viable
alternative to sealing in resolving the instant motion.
Plaintiffs' Motion to Withdraw Ramón Hernandez
plaintiffs filed the instant motion to withdraw plaintiff
Ramón Hernandez as named plaintiff and proposed class
representatives without prejudice. (DE 96). Plaintiffs argue
that plaintiff Ramón Hernandez is no longer living in
North Carolina and is unable to effectively participate in
the case as a potential class representative. (Pl. Mem. (DE
97)). Plaintiffs argue that plaintiff Ramón Hernandez
should be allowed to continue as an absent class member
should plaintiffs prevail. (Pl. Mem. (DE 97)). In support of
the motion, plaintiffs filed the declaration of Carol Brooke
(Brooke Decl. (DE 97-1)).
defendants filed their response in opposition to the motion
to withdraw plaintiff Ramón Hernandez as named
plaintiff and proposed class representative without
prejudice. (Scott Def. Resp. (DE 104)). Scott defendants
argue that Federal Rule of Civil Procedure 15 is the
appropriate rule under which to decide this issue, defendants
would be prejudiced if plaintiff Ramón Hernandez is
permitted to withdraw without plaintiffs amending their
complaint, and plaintiff's motion to withdraw plaintiff
Ramón Hernandez may be improper because
plaintiff's counsel may have lost contact with plaintiff
Ramón Hernandez. (See Scott Def. Resp. (DE
104)). In support of Scott defendants' response, they
attach several pieces of email correspondence (Email
Correspondence (DE 104-2 - 104-6)), the deposition of
plaintiff Ramón Hernandez (Ramón Hernandez Dep.
(DE 104-7)), and a North Carolina ethics opinion (Ethics
Opinion 223 (DE 104-8)).
reply in opposition, arguing that withdrawing as counsel for
plaintiff Ramón Hernandez would be improper, that
plaintiff Ramón Hernandez has not indicated he wishes
plaintiff's counsel to withdraw, and that counsel was
acting in plaintiff Ramón Hernandez's best
interests. (Pl. Reply (DE 109)). In further support of
plaintiffs' motion, plaintiffs attach the second
declaration of Carol Brooke (Second Brooke Decl. (DE 109-1)).
Appeal of Magistrate Judge's Order on Motion to Amend
order dated January 5, 2019, the magistrate judge granted
defendants leave to amend their answer. (Order (DE 121)). The
magistrate judge found good cause for Scott defendants'
failure to timely amend their answer, and found that
plaintiffs would not be prejudiced by an amendment of the
answer. Plaintiffs object to these findings on the grounds
that both are clearly erroneous. (Pl. Obj. (DE 127)). Scott
defendants filed their response in opposition to
plaintiffs' objections, together with an email from
counsel. (Def. Resp. (DE 128)).
facts alleged in the complaint pertinent to the motion for
conditional certification may be summarized as follows. Scott
defendants own and operate a farm and processing
establishment that recruits, hires, employs, furnishes, or
transports migrant or seasonal agricultural workers. (Compl.
¶ 15). Defendant Scott Farms, Inc., the corporate
entity, produces and markets tobacco, sweet potatoes, and
other agricultural products; defendants Linwood H. Scott,
Jr., Alice H. Scott, Linwood H. Scott, III, and Dewey R.
Scott are all officers and operators of Scott Farms. (See
Id. ¶¶ 8-11).
JFT Harvesting, Inc., and Oasis Harvesting, Inc., are
companies that recruit, solicit, hire, employ, furnish, or
transport migrant or seasonal agricultural workers; defendant
Juan F. Torres is president of defendant JFT Harvesting,
Inc., while Ramiro B. Torres is president of defendant Oasis
Harvesting, Inc. (See id. ¶¶ 33-38).
Torres defendants' directed, controlled, and supervised
the work of the H-2A workers who performed work exclusively
for defendant Scott Farms in the files and packing house of
defendant Scott Farms. (Id. ¶ 39).
Romero Acuña began working for the Scott defendants in
approximately 2006 and is still employed there. (Compl.
¶ 115). His duties include spraying herbicides in the
sweet potato and tobacco fields, digging up sweet potatoes,
and driving a forklift. (Id.). On occasion during
the time period relevant to the complaint, plaintiff Romero
Acuña worked packing sweet potatoes alongside H-2A
workers. (Id. ¶ 116). Plaintiff Romero
Acuña was paid $8.00 per hour in 2016, and currently
earns $9.25 per hour on some days, and $11.27 per hour on
other days. (Id. ¶ 118).
Quirasco Sixteco began working for the Scott defendants in
approximately 1999 and is still employed there. (Id.
¶ 127). His job is to work in the Scott Farms sweet
potato fields and packing house. (Id.). Plaintiff
Quirasco Sixteco drives a forklift to unload boxes of sweet
potatoes from trucks driven by H-2A workers. (Id.
¶ 129). Plaintiff Quirasco Sixteco also drives a tractor
for the planting of sweet potatoes, harvesting sweet
potatoes, and processing and packing sweet potatoes.
(Id.). Plaintiff Quirasco Sixteco was paid $10.00
per hour in 2016, and currently earns $10.00 per hour some
days and $11.27 on other days. (Id. ¶ 130).
plaintiff Romero Acuña nor plaintiff Quirasco Sixteco
were recruited by defendants to work under H-2A clearance
orders in 2014, 2015, 2016, or 2017. (Id.
¶¶ 117, 128). However, in addition to hiring local
seasonal agricultural workers, Scott defendants used Torres
defendants to find additional laborers through the H-2A visa
program. (See id. ¶¶ 48-55). Scott
defendants began using Torres defendants' services at
some point prior to the 2013 agricultural season, in order to
assist with growing and harvesting sweet potatoes.
(Id. ¶ 49). Torres defendants obtained
clearance orders for workers in 2014, 2015, 2016, and 2017 to
work exclusively at Scott defendants' facilities.
(See id. ¶¶ 56-72).
Romero Acuña and Quirasco Sixteco seek to bring a
collective action under FLSA for work performed by themselves
and other employees similarly situated who unloaded, packed,
or processed sweet potatoes that work or are produced by
person(s) or entities other than defendants. (Id.
¶ 167). Plaintiffs Romero Acuña and Quirasco
Sixteco allege that they and other employees were required to
work over time hours and were willfully not paid at the
appropriate hourly overtime rate by Scott defendants and
Torres defendants. (Id. ¶¶ 167-69).
facts pertinent to the instant motions will be discussed
Plaintiffs' Motion to Conditionally Certify
Plaintiffs Romero Acuña and Quirasco Sixteco seek, and
defendants oppose, the conditional certification of a
collective action under the Fair Labor Standards Act
An action to recover the liability prescribed [by FLSA] may
be maintained against any employer (including a public
agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated. No. employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such
action is brought.
29 U.S.C. § 216(b). “There are two requirements
for maintenance of a class action under the FLSA: the
plaintiffs in the proposed class must be ‘similarly
situated;' and they must opt in by filing their consent
to sue with the court.” See i d . To determine
if conditional certification is appropriate in this case, the
court begins by analyzing the working conditions of
plaintiffs Romero Acuña, Quirasco Sixteco, and their
co-workers, turns to the issues of joint employer and
independent contractor status, and finally addresses whether
notice is appropriate in this case.
Working Conditions of Plaintiffs and Coworkers
Fourth Circuit has not announced a test for determining if
employees are similarly situated. However, courts in this
district have held that, “to be similarly situated for
purposes of § 216(b), persons must raise a similar legal
issue as to . . . nonpayment or minimum wages or overtime
arising from at least a manageably similar factual setting
with respect to their job requirements and pay provisions,
but their situations need not be identical.”
Rosinbaum v. Flowers Foods, Inc., 238 F.Supp.3d 738,
743 (E.D. N.C. 2017) (quotations omitted) (collecting cases).
Certification of a collective action under FLSA proceeds in
two steps: “ the court conditionally certifies the
class based on the limited record before it and approves
notice to putative class members of their right to opt in.
 The final determination on certification is made later,
typically after discovery, when the court has available to it
substantially more information.” Id. (internal
Romero Acuña and Quirasco Sixteco seek conditional
certification of a collective action for themselves and
similarly situated employees
who, during the three year period prior to the date on which
such person files a Consent to Join in this action pursuant
to 29 U.S.C. § 216(b), and ending with the date final
judgment is entered, were not paid at the required overtime
wage rate when they worked more than 40 hours in any workweek
unloading, storing, packing, and/or processing sweet potatoes
in the storage facilities or packinghouses of the Scott
[d]efendants when any part of that work involved sweet
potatoes that were and are produced by person(s) or entities
other than the Scott [d]efendants.
(Mot. To Conditionally Certify (DE 98) ¶ 1) (“FLSA
Collective Action”). Here, the proposed FLSA Collective
Action presents a common question applicable to all potential
plaintiffs: did “any part of that work involve sweet
potatoes that were and are produced by person(s) or entities
other than the Scott [d]efendants[?]” Id. This
common question directly implicates whether the exemption
from FLSA overtime provisions for agricultural work pursuant
to 29 U.S.C. § 213(b)(12) is applicable, or if
plaintiffs are entitled to overtime pay pursuant to 29 U.S.C.
§ 207(a)(1). See De Luna-Guerrero v. N.
Carolina Grower's Ass'n, Inc., 338 F.Supp.2d
649, 654 (E.D. N.C. 2004) (“[P]laintiffs must raise a
similar legal issue as to coverage, exemption, or nonpayment
or minimum wages or overtime arising from at least a
manageably similar factual setting.”). At this stage,
plaintiffs have presented some evidence that all employees
worked on the sweet potatoes from one grower at a time on any
given day, and everyone worked the same hours. (See
Uribe Dep. (DE 111-2) 17:22-18:3; 38:9-11; 39:19-23).
[w]here an employee in the same workweek performs work which
is exempt under one section of the Act and also engages in
work to which the Act applies but is not exempt under some
other section of the Act, he is not exempt that week, and ...