Mondragon v. Scott Farms, Inc.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This matter is before the court on plaintiffs' motion to withdraw Ramón Ortiz Hernandez (“Ramón Hernandez”)^[1] 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.

         STATEMENT OF THE CASE

         Plaintiffs 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. § 216(b).

         With 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).^[2] 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.^[3] In each instance, defendants denied liability to plaintiffs under FLSA.

         Initially, 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 (DE 121)).

         A. Plaintiffs' Motion to Conditionally Certify the FLSA Action

         In the 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)).

         Plaintiffs 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).

         In 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)).

         Scott 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)).

         In 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)).

         B. Scott Defendants' Motion to Seal

         Scott 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)).

         Plaintiffs 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.

         C. Plaintiffs' Motion to Withdraw Ramón Hernandez

         Finally, 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)).

         Scott 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)).

         Plaintiffs 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)).

         D. Appeal of Magistrate Judge's Order on Motion to Amend

         In his 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)).

         STATEMENT OF FACTS

         The facts alleged in the complaint^[4] 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).

         Defendants 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).

         Plaintiff 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).

         Plaintiff 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).

         Neither 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).

         Plaintiffs 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).

         Additional facts pertinent to the instant motions will be discussed below.

         COURT'S DISCUSSION

         A. 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 (“FLSA”).

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.

         1. Working Conditions of Plaintiffs and Coworkers

         The 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: “[1] 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. [2] The final determination on certification is made later, typically after discovery, when the court has available to it substantially more information.” Id. (internal citations omitted).

         Plaintiffs 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). Moreover,

[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 ...