581 F.Supp.2d 1295 (N.D.Ga. 2008), 1 05-CV-1473, De Leon-Granados v. Eller & Sons Trees, Inc.

Docket Nº:1:05-CV-1473-CC.
Citation:581 F.Supp.2d 1295
Party Name:Escolastico DE LEON-GRANADOS, Isais Profeta de Leon-Granados, and Armenio Pablo-Calmo on behalf of themselves and all others similarly situated, Plaintiffs, v. ELLER & SONS TREES, INC. and Jerry Eller, Defendants.
Case Date:October 07, 2008
Court:United States District Courts, 11th Circuit, Northern District of Georgia

Page 1295

581 F.Supp.2d 1295 (N.D.Ga. 2008)

Escolastico DE LEON-GRANADOS, Isais Profeta de Leon-Granados, and Armenio Pablo-Calmo on behalf of themselves and all others similarly situated, Plaintiffs,


ELLER & SONS TREES, INC. and Jerry Eller, Defendants.

No. 1:05-CV-1473-CC.

United States District Court, N.D. Georgia.

October 7, 2008

Page 1296

[Copyrighted Material Omitted]

Page 1297

[Copyrighted Material Omitted]

Page 1298

[Copyrighted Material Omitted]

Page 1299

[Copyrighted Material Omitted]

Page 1300

Alex R. Gulotta, Erin Trodden, Charlottesville, VA, Andrew H. Turner, Montgomery, AL, George Brian Spears, Law Office of Brian Spears, Kelley Bruner, Mary C. Bauer, Atlanta, GA, James M. Knoepp, Tim A. Freilich, Falls Church, VA, for Plaintiffs.

James Larry Stine, Paul Oliver, Wimberly Lawson Steckel Nelson & Schneider, Atlanta, GA, for Defendants.


CLARENCE COOPER, District Judge.

This matter is presently before the Court for consideration of Plaintiffs' Motion for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller [Doc. No. 173]; Defendants' Motion for Partial Summary Judgment [Doc. Nos. 190 & 195]; Plaintiffs' Motion for Partial Summary Judgment Related to Unreimbursed Expenses [Doc. No. 207]; Plaintiffs' Motion for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements [Doc. No. 208]; and Defendants' Motion for Sanctions Pursuant to 28 U.S.C. § 1927 [Doc. No. 316].


Plaintiffs Escolastico De Leon-Granados, Isaias Profeta De Leon-Granados, and Armenio Pablo-Calmo (referred to herein as “ Plaintiffs" ) filed the instant class action lawsuit against Defendants Eller & Sons Trees, Inc. (referred to herein as “ Eller and Sons Trees" ) and Jerry Eller (referred to herein as “ Mr. Eller" or “ Eller" ) (collectively referred to herein as “ Defendants" ). Eller and Sons Trees is a business located in Franklin, Georgia, that provides forest reforestation (tree planting) and forestry services such as brush clearing, boundary marking, and chemical spraying. Most of its employees are engaged in tree planting, predominantly in the southern United States during the months of December, January, and February. This is arduous work, and Eller and Sons Trees cannot find enough employees in the United States to perform the work. As a result, most of the workers come from outside of the United States. The vast majority come from Guatemala, although some come from Mexico, Honduras, and Colombia. Eller and Sons Trees obtains employees through the H-2B visa program, which allows the legal, temporary or seasonal employment of alien, nonimmigrant employees. Mr. Eller is the president, sole corporate officer, and owner of Eller and Sons Trees. As will be explained infra, he is active in the company's day-to-day operations and maintains significant control over the company.

The named Plaintiffs are three migrant farmworkers who were employed in Defendants'

Page 1301

forestry operations at various times since June 1, 1999. Plaintiffs contend that they were denied protections due them under the Fair Labor Standards Act, 29 U.S.C. § § 201-19 (“ FLSA" ), and under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § § 1801-71 (1999) (“ AWPA" ), during the various times they were employed by Eller and Sons Trees.


The Court first addresses Defendants' Motion for Sanctions Pursuant to 28 U.S.C. § 1927 (the “ Motion for Sanctions" ). Defendants move the Court to impose sanctions against Plaintiffs for filing two separate Statements of Undisputed Material Facts totaling 96 pages and consisting of 731 separate facts. Defendants contend that a number of these facts misrepresented the evidence in the record, lacked sufficient evidentiary support, reflected conclusory or frivolous arguments, recited clearly disputed issues, or presented immaterial or irrelevant statements. Defendants maintain that Plaintiffs, as a consequence, have unreasonably and vexatiously multiplied the proceedings in this lawsuit. The Court disagrees.

Notwithstanding the Court's observation in footnote 1 of this Order regarding the number of facts that have been asserted by the parties, the Court finds that Defendants' Motion for Sanctions is groundless, as there is no basis for the Court to make the required finding that Plaintiffs acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239 (11th Cir.2007) (setting forth the requirements for an award of sanctions pursuant to 28 U.S.C. § 1927). Plaintiffs substantially complied with Local Rules 56.1B and made the process of sifting through the facts in this matter very efficient, especially given the complexity of the subject matter and the many issues raised. This Court's Local Rules obviously contemplate that some facts asserted will be the subject of disagreement and that parties will find some facts asserted by the opposing party objectionable, immaterial, and/or unsupported by the evidence. See LR 56.1B(2)(a)(2). NDGa. Thus, that Defendants took issue with many of the facts asserted by Plaintiffs comes as no surprise. The Court also notes, however, that many of Defendants' denials and disputes were groundless themselves. Moreover, Defendants, not Plaintiffs, largely failed to comply with Local Rule 56.1B(1), insofar as Defendants' facts were not numbered separately. Accordingly, and without further discussion or the need for a hearing, this Court denies the Motion for Sanctions.2


In Plaintiffs' pending partial summary judgment motions, Plaintiffs seek determinations that Eller was an employer of the Plaintiff class, that Defendants violated certain of the AWPA's record keeping requirements, and that Defendants are liable for certain unreimbursed expenses. Defendants seek partial summary judgment on several different issues arising under the FLSA and AWPA and specifically seek determinations that (1) the FLSA does not apply to alleged violations committed in foreign countries; (2) Plaintiffs have no

Page 1302

private right of action under the FLSA for alleged record keeping violations; (3) travel time before commencement of each day's work and after the end of work is not compensable under the FLSA; (4) reimbursement of visa expenses and costs incurred for travel from the home country to the United States to begin new work is not required for H-2B workers; (5) Defendants' reliance on Department of Labor regulations and written material provides an absolute defense to Plaintiffs' FLSA claim for reimbursement of inbound travel and visa expenses; (6) the two-year FLSA statute of limitations is applicable to the FLSA claims; (7) Defendants' payroll information meets the AWPA's requirements; (8) Plaintiffs are not entitled to any damages award in excess of the cap of $500,000.00 that Congress set on class claims under the AWPA; (9) there is no agreement or requirement to guarantee each worker at least 40 hours of work every week; (10) failure to pay relocation costs is not a violation of the AWPA; (11) requiring workers to leave a deed in Guatemala does not violate the AWPA; and (12) the statute of limitations for alleged AWPA violations is two years in Georgia.3


Summary judgment is appropriate when “ the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the lack of any material dispute, after which the nonmoving party must show the existence of a genuine issue for trial if it is to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party is required to “ go beyond the pleadings" and present competent evidence designating “ ‘ specific facts showing that there is a genuine issue for trial.’ " Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment-there must be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is not genuine if it is unsupported by the evidence or created by evidence that is “ merely colorable" or not “ significantly probative." Id. at 249-50, 106 S.Ct. 2505. Similarly, a fact is considered material only if it is identified by the substantive law as an essential element of the nonmoving party's case. Id. at 248, 106 S.Ct. 2505. “ [U]nless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," summary judgment shall be rendered. Id. at 249, 106 S.Ct. 2505. Stated differently, “ [w]here the record taken as a while could not lead a rational trier of fact

Page 1303

to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citations and internal marks omitted).


After examining the summary judgment motions that have been filed by the parties, the Court concludes that there is a substantial overlap of issues. In the interest of judicial economy, the Court has decided to consider the cross motions jointly. The Court has thoroughly considered all arguments made and evidence cited by the parties. Further, as the summary judgment standard requires, the Court construes the facts in the...

To continue reading