89 F.R.D. 645 (D.N.M. 1981), Civ. 80-661 HB, Aguirre v. Bustos

Docket NºCiv. 80-661 HB.
Citation89 F.R.D. 645
Opinion JudgeBRATTON, Chief Judge.
Party NameCarlos AGUIRRE, Juan Mendez, Rafael Ortiz, and Miguel Gonzales, for themselves and all others similarly situated, Plaintiffs, v. Ramiro BUSTOS and Santo Tomas Produce Association, Inc., Defendants.
AttorneyAngel L. Saenz, Southern New Mexico Legal Services, Las Cruces, N. M., for plaintiffs. John A. Darden, III, Darden & Darden, P. C., Las Cruces, N. M., for Santo Tomas Produce Association. Lloyd O. Bates, Jr., Pickett & Bates, Las Cruces, N. M., for Ramiro Bustos.
Case DateApril 02, 1981
CourtUnited States District Courts, 10th Circuit, District of New Mexico

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89 F.R.D. 645 (D.N.M. 1981)

Carlos AGUIRRE, Juan Mendez, Rafael Ortiz, and Miguel Gonzales, for themselves and all others similarly situated, Plaintiffs,

v.

Ramiro BUSTOS and Santo Tomas Produce Association, Inc., Defendants.

Civ. No. 80-661 HB.

United States District Court, D. New Mexico.

April 2, 1981

Motion was filed to certify an action as a collective action under the Fair Labor Standards Act and as a class action under the Federal Rules of Civil Procedure. The District Court, Bratton, Chief Judge, held that: (1) group of migrant farm workers who labored together in the fields and alleged the same minimum wage violations were " similarly situated" within meaning of the Fair Labor Standards Act, so as to be entitled to maintain action as a collective action; (2) where one of the plaintiffs had recruited some of the other workers and his salary was based on the amount of work they did and he was periodically given money by contractor to distribute to field hands, he was not a proper representative of his co-workers and his claim would be severed; (3) except for the same plaintiff whose claim was severed as to the Fair Labor Standards Act claim, named plaintiffs were adequate class representatives for purposes of maintaining class action under the Farm Labor Contractor Registration Act; and (4) action under the latter Act was appropriate to be maintained as a class action on ground that questions of law or fact common to each class member's claim predominated over individual questions and class action was a superior method for resolving the controversy.

Ordered accordingly.

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Angel L. Saenz, Southern New Mexico Legal Services, Las Cruces, N. M., for plaintiffs.

John A. Darden, III, Darden & Darden, P. C., Las Cruces, N. M., for Santo Tomas Produce Association.

Lloyd O. Bates, Jr., Pickett & Bates, Las Cruces, N. M., for Ramiro Bustos.

MEMORANDUM OPINION

BRATTON, Chief Judge.

Plaintiffs have moved to certify this action as a collective action under the Fair Labor Standards Act and as a class action under the Federal Rules of Civil Procedure. After reviewing the memoranda and exhibits submitted by the parties and hearing testimony and oral argument, the Court concludes that the motion should be granted for the reasons, and on the terms, set forth in this opinion.

Plaintiffs are migrant farmworkers who harvested onions during the spring and summer of 1980 on farms near Las Cruces, New Mexico. Defendant Bustos is a farm labor contractor, and defendant Santo Tomas Produce Association, Inc., is a cooperative association of farmers. Plaintiffs allege that they were employed by the defendants, that during their employment they were not paid the minimum wage required by the Fair Labor Standards Act (FLSA), 29 U.S.C. s 201 et seq., and that in recruiting and employing them the defendants violated the Farm Labor Contractor Registration Act (FLCRA), 7 U.S.C. s 2041 et seq., in various ways. They seek a declaratory judgment and damages. In the motion now being considered, plaintiffs ask that their FLSA claim be treated as a collective action 1 pursuant to 29 U.S.C. s 216(b) and that their FLCRA claim be certified as a class action pursuant to Rule 23, Fed.R.Civ.P.

The FLSA issue will be considered first. Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. s 216(b), provides:

Any employer who violates the (minimum wage provisions) ... of this title shall be liable to the employee or employees

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affected in the amount of their unpaid minimum wages ... and in an additional equal amount as liquidated damages .... An action to recover (this liability) may be maintained against any employer ... 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.

Plaintiffs have already filed consent forms signed by more than 60 of their co-workers who wish to become parties to this suit. The action may proceed as a collective action if all the proposed plaintiffs are " similarly situated" within the meaning of the statute.

A group of farmworkers who labored together in the fields and allege the same minimum wage violations are so situated. Riojas v. Seal Produce, Inc., 82 F.R.D. 613 (S.D.Tex.1979). Only Carlos Aguirre, the first named plaintiff, falls outside this group. Evidence presented at the motion hearing shows that Aguirre recruited some of the other workers, that his salary was based on the amount of work they did, and that he was periodically given money by Bustos to distribute to the field hands as their pay. While it might generally be desirable to construe a remedial statute like the FLSA broadly, it would be improper in the present circumstances to hold that Aguirre is similarly situated with respect to the other plaintiffs. Indeed, his interests may conflict with theirs. The defendants might seek to prove that Aguirre himself was an employer subject to FLSA liability or that he withheld pay that he should have distributed. This potential conflict makes it inappropriate for Aguirre to press a minimum wage claim on behalf of all the workers.

Because the other named plaintiffs are proper representatives of their co-workers, they will be permitted to press the FLSA claims of the entire group. The claim of plaintiff Aguirre will be severed. Plaintiffs' counsel will be granted time to secure any additional consent forms that should be filed in this action.2

With regard to certification of plaintiffs' FLCRA claims as a class action, it must initially be determined that the Rule 23(a) prerequisites to class action certification have been met. First, the class must be so numerous that joinder of all members is impracticable. The class sought to be certified consists of all persons who were recruited, solicited, furnished, or hired by the defendants through Carlos Aguirre during May and June of 1980.3 Plaintiffs further propose to limit the class to those persons who receive individual notice of this action.4 The class numbers at least 60 persons and is expected to exceed 100 members.

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It is concluded that joinder of all the class members is impracticable.

Second, there must be questions of...

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