DOES I Thru XXIII v. Advanced Textile Corp.
| Citation | 214 F.3d 1058 |
| Decision Date | 07 December 1999 |
| Docket Number | No. 99-16713,99-16713 |
| Parties | (9th Cir. 2000) DOES I THRU XXIII, on behalf of themselves and all others similarly situated, Plaintiff-Appellant, v. ADVANCED TEXTILE CORPORATION, a corporation; AMERICAN INVESTMENT CORPORATION, a corporation; AMERICAN PACIFIC TEXTILE, INC., a corporation; CONCORDE GARMENT MANUFACTURERS CORPORATION, a corporation; DIORVA (SAIPAN) LTD., a corporation; GLOBAL MANUFACTURING INC., a corporation; GRACE INTERNATIONAL INC., a corporation; HANSAE (SAIPAN), INC., a corporation; JOO ANG APPAREL, INC., a corporation; L & T INTERNATIONAL CORPORATION, a corporation; MARIANA FASHIONS, INC., a corporation; MARIANAS GARMENT MANUFACTURING, INC., a corporation; MICHIGAN, INC., a corporation; MICRONESIAN GARMENT MANUFACTURING, INC., a corporation; NEO FASHION, INC., a corporation; N.E.T., d/b/a Suntex Manufacturing Corporation, a corporation; PAN JIN SANG SA CORPORATION, a corporation; SAKO CORPORATION, a corporation; TOP FASHION CORPORATION, a corporation; TRANS ASIA GARMENT FORTE CORPORATION, a corporation; UNITED INTERNATIONAL CORPORATION, a corporation; US CNMI DEVELOPMENT CORPORATION, a corporation, Defendants-Appellees. Office of the Circuit Executive |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California, for the plaintiffs-appellants.
Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, California, for defendants-appellees Advanced Textile Corporation, et al.
G. Anthony Long, Long & Brown, Saipan, Mariana Islands, for defendant-appellee N.E.T.
William Stone, United States Department of Labor, Washington, D.C., for amicus curiae Secretary of Labor.
Appeal from the United States District Court for the District of the Northern Mariana Islands. D.C. No. CV-99-00002-ARM
Before: Myron Bright,1 Harry Pregerson and Michael Daly Hawkins, Circuit Judges.
This case requires us to decide whether the named plaintiffs in a Fair Labor Standards Act, 29 U.S.C. S 201 et seq., collective action may, in the caption of their complaint, use pseudonyms in place of their true names. Plaintiffs in this case are foreign garment workers on the island of Saipan. They used fictitious names in their complaint because they fear that, if their identities are disclosed to defendants and other nonparties to this action, they will be fired from their jobs, deported from Saipan, and arrested and imprisoned by the People's Republic of China. The district court dismissed the action with leave to amend the complaint to state plaintiffs' true names. We have jurisdiction under the collateral order doctrine, and we reverse. We hold that where, as here, the named plaintiffs in a Fair Labor Standards Act collective action demonstrate that they have an objectively reasonable fear of extraordinarily severe retaliation, they may conceal their identities from defendants at least until the district court rules on plaintiffs' motion for court-ordered notice to potential class members,2 and potential class members have been given an opportunity to join the suit.
Saipan is the main island of the Commonwealth of the Northern Mariana Islands ("CNMI"), and garment manufacturing is one of Saipan's principal industries. The garment industry has flourished on Saipan because employers in Saipan are not obligated to pay the federal minimum wage, and clothing made in Saipan, a commonwealth of the United States, can be sold in the United States without payment of import duties. Nonresident foreign workers make up roughly half of Saipan's population, and as many as 25,000 may sew clothing for the garment industry. Induced to travel to Saipan by recruiting agencies operating abroad, foreign workers typically pay several thousand dollars to secure a job in Saipan, sign a contract agreeing to work only for a specific employer and to return home when employment ends, and reside in company housing while in Saipan.3
Twenty-three workers in Saipan's garment industry filed this suit against their employers, alleging multiple violations of the Fair Labor Standards Act ("FLSA"). Specifically, plaintiffs allege that their employers have a pattern, practice, or policy of failing to pay overtime; failing to pay the legally required overtime; deducting excessive sums for unsanitary housing and food which plaintiffs are required to purchase as a condition of employment; and failing to keep adequate records. They named as defendants twenty-one garment manufacturers operating on the island.4 The plaintiffs are all nonresidents of Saipan; twenty-one are citizens of the People's Republic of China ("China"), and two are citizens of Bangladesh.
Plaintiffs filed their complaint under the pseudonyms "Jane Does I-XXIII." The complaint alleges that plaintiffs "fear that if their true identity is revealed, they will face actual physical violence, the threat of physical violence, immediate deportation to China or their country of origin, likely arrest upon arrival in China or their country of origin and an order by China and other authorities accelerating the repayment of debt incurred for recruitment fees" and that they "reasonably fear that their families may face similar threats of physical and economic retaliation if their true identity is revealed."
Plaintiffs filed this suit as a FLSA collective action on behalf of approximately 25,000 similarly situated garment workers. Section 16(b) of FLSA authorizes an employee to bring an action on behalf of similarly situated employees, but requires that each employee opt-in to the suit by filing a consent to sue with the district court. See 29 U.S.C. S 216(b).5 To facilitate this process, a district court may authorize the named plaintiffs in a FLSA collective action to send notice to all potential plaintiffs, see Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989), and may set a deadline for plaintiffs to join the suit by filing consents to sue, id. at 172. Accordingly, plaintiffs in this suit moved the district court to authorize notice to be sent to all potential plaintiffs ("Hoffman-La Roche motion").
Before the district court ruled on plaintiffs' Hoffman-La Roche motion and while discovery was stayed, all defendants, except N.E.T. Corporation ("N.E.T."), moved to dismiss the complaint for failure to include plaintiffs' true names and to strike the consents to sue filed under seal. Plaintiffs then filed a cross-motion for leave to proceed under fictitious names. N.E.T. did not oppose plaintiffs' cross-motion. The district court denied plaintiffs' cross-motion and granted defendants' motion to dismiss. Instead of entering its order, the court stayed the dismissal to permit plaintiffs to amend their complaint to include their true names.6 Plaintiffs appeal the dismissal of their action.
The district court concluded that plaintiffs' need for anonymity did not outweigh "the prejudicial effect on defendants' ability to investigate and defend against claims by unnamed plaintiffs," and the public's interest in a The court gave five reasons for this conclusion. Citing Article III's standing requirement, the district court suggested that it lacked jurisdiction to protect plaintiffs from retaliation by nonparties to the suit. The court also described plaintiffs' evidence of threatened retaliation as "prospective and conjectural, based in large part on hearsay and innuendo." Third, the court found that plaintiffs' evidence did not demonstrate a "real danger of physical harm" and that "[m]any of the fears revolve around economic retaliation which is not sufficient to support anonymous proceedings." Fourth, the court observed that anonymity would serve no purpose because defendants already know the identities of many plaintiffs. Finally, the court stated that other protections are available to plaintiffs, including the United States marshal service, FLSA's prohibition on employer retaliation against employees who file labor complaints, 29 U.S.C. S 215(a)(3), and the CNMI's Non-Resident Workers Act, 3 N. Mar. I. Code S 4434(g), which prohibits summary deportation of foreign workers upon termination from their employment.
In support of their motion to proceed under fictitious names, plaintiffs filed with the district court evidence of working conditions in Saipan's garment industry and the particular risks that Chinese workers face if their identities are disclosed.7 Chinese workers are enlisted to work in Saipan's garment industry by recruiting agencies operating in China. Recruiters require prospective workers to sign side-contracts with the recruiting agency. One such contract requires the employee to surrender her passport upon entering Saipan and to return to China immediately if she quits work without the recruiter's permission. The recruiting agencies charge prospective workers a "recruitment fee" to secure a position in the CMNI and a "performance of contract" deposit which is forfeited if the worker does not complete her contract. These fees total several thousand dollars. In addition, prospective workers must find a guarantor, usually a relative, to assume joint liability for any debts owed by the worker.
Several workers testified that they fear the Chinese government will arrest them or their family members if they breach the recruitment contract, or if they are unable to pay the debts acquired under the recruitment contract. Recruiters warn workers, prior to departing China, that they must not complain about working conditions, speak to Americans, or criticize the Chinese government. Recruiters continue to meet with and police the conduct of their recruits after they arrive in Saipan. When workers complained...
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