Garcia v. Frog Island Seafood, Inc.

Decision Date29 June 2009
Docket NumberNo. 2:06-CV-46-F.,2:06-CV-46-F.
CourtU.S. District Court — Eastern District of North Carolina
PartiesMercedalia Hernandez GARCIA, Mirelda Garcia Dominguez, Mareli Cupil Zapata, Maria Zapata Arias, Yaimi Cupil Zapata and Juan Cupil Arias, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. FROG ISLAND SEAFOOD, INC., Robert D. White and Janice White Harris, Defendants.

Alice Tejada, Scudder & Hedrick, Carol Brooke, Jack Holtzman, N.C. Justice and Community Development Center, Raleigh, NC, for Plaintiffs.

John D. Leidy, Hornthal, Riley, Ellis & Maland, LLP, Elizabeth City, NC, for Defendants.


JAMES C. FOX, Senior District Judge.

This matter is before the court on the parties' cross-motions for partial summary judgment [DE-26, DE-32]. All briefing, responses and replies are complete. Accordingly, the motions are ripe for ruling.


Plaintiffs initiated this action by Complaint [DE-I] filed December 19, 2006, seeking unpaid wages, liquidated damages, attorney fees and costs against Defendants for the alleged violations of section 206(a) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and sections 95-25.6, 95-25.8, 95-25.22 of the North Carolina Wage and Hour Act, N.C. Gen.Stat. § 95-25.1 et seq. ("NCWHA"). Plaintiffs also seek a class action suit pursuant to 29 U.S.C. § 216(b) for the alleged violations of the FLSA, as well as a class action suit pursuant to Rule 23 of the Federal Rules of Civil Procedure for the purported violations of the NCWHA. On January 31, 2007, Plaintiffs filed an Amended Complaint [DE-12], adding a North Carolina common law claim for breach of contract against Defendants, and seeking to pursue the contract claim as a class action suit pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants filed their Answer [DE-15] on February 12, 2007, generally denying the allegations of the complaint and raising several affirmative defenses.

On January 31, 2007, Plaintiffs moved for conditional certification of this case as a collective action under FLSA [DE-13] to which Defendants, in their response in agreement, [DE-17], reserved their right to challenge the final certification and to contest any further motions for class certifications. On August 15, 2007, the court entered an Order [DE-24] allowing Plaintiffs' motion for conditional certification of this case as a collective action under the FLSA. On August 30, 2007, Plaintiffs filed a Motion for Class Certification of the NCWHA and Contract Claims [DE-25], to which Defendants subsequently filed a Response [DE-35] in opposition, and Plaintiffs filed a Reply [DE-43].

On August 30 2007, Plaintiffs moved for partial summary judgment as to Defendants' liability under the FLSA, NCWHA and North Carolina contract law [DE-26], On the same date, Defendants moved for partial summary judgment dismissing all claims except the following: (1) claim under the FLSA for improper rent collection and de facto deductions; (2) claim under the NCWHA for actual deductions from Plaintiffs' wages without obtaining written authorization in advance; and (3) claim under the NCWHA for improper collection of rent. See Defs.' Mem. of Law in Supp. of Partial Summ. J. at 29 [DE-31] ("Defs.' Mem."). Both parties filed responses in opposition to the partial summary judgment motions [DE-36, DE-37], and replies thereto [DE-42, DE-45]. Both motions are pending before this court.

On January 23, 2008, Plaintiffs filed a Motion to Extend the Opt-in Deadline, to Allow Other Methods to Contact Potential Collective Action Members and to Require the Production of Addresses of Additional Collective Action Members [DE-50]. On February 22, 2008, Defendants filed a Response [DE-51] in agreement to extending the opt-in deadline and to allowing other contact methods, but in opposition to producing additional addresses, to which Plaintiffs filed a Reply [DE-52] on March 6, 2008. This motion is also pending before the court. The parties have engaged in substantial discovery.1


This lawsuit arises from Defendants' alleged underpayment of wages and record-keeping violations during Plaintiffs' employment with Defendants. Plaintiffs are citizens of Mexico who were admitted as temporary foreign workers under the H-2B2 provisions of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(b), to work in Defendants' seafood processing plant as "crab pickers." See Mem. of Law in Supp. of Pls.' Mot. for Partial Summ. J. at 4 [DE-26.2] ("Pls.' Mem."). During 2004-2006, Defendants sought permission to bring Mexican nationals to work in their seafood processing plant by filing annually an Application for Alien Employment Certification, Form ETA 750A ("Clearance Orders") with the United States DOL. See Pls.' Mem. [DE-27.7, DE-27.8, DE-27.9], Ex. 6-8. Each Clearance Order set forth the number of workers requested by Defendants, the period of employment, the type of work and rate of pay being offered by Defendants. Id. The DOL approved the terms of work described in Defendants' Clearance Orders, and granted their request for H-2B visas to allow Plaintiffs to fill the jobs described in those orders. Id.

Each of the plaintiffs and putative members of the FLSA and NCWHA plaintiff classes paid his or her own transportation, visa, passport and border crossing costs-expenses not reimbursed by Defendants. Defs.' Resp. in Opp'n to Pls.' Mot. for Partial Summ. J. at 2, 5-6 [DE-37] ("Defs.' Resp."); Defs.' Resp. to Pls.' First Req. for Admis. ¶¶ 16-19 [DE-28.2] ("Defs.' First Admis."), Ex. 11. Defendants required Plaintiffs to use knives while performing certain tasks in the course of Plaintiffs' employment with Defendants. Defs.' First Admis. ¶ 23 [DE-28.2], Ex. 11. Defendants provided Plaintiffs with the knives at no cost at the beginning of the season; however, Plaintiffs were advised that replacement knives would be deducted from their wages. Defs.' Mem. at 9 [DE-31], Dep. of Hortencia Seefoo at 46:25, 47:1-3 [DE-28.3] ("Seefoo Dep."),3 Ex. 12. Such deductions were made without obtaining Plaintiffs' written authorizations. Defs.' Resp. at 3 [DE-37]; Defs.' Resp. to Pls.' First Req. for Produc. of Docs. ¶ 9 [DE-27] ("Defs.' First Produc.") Ex. 10. While employed by Defendants, Plaintiffs rented housing provided by Defendant Frog Island Seafood ("FIS"). Defs.' Resp. at 4 [DE-37]. Defendant FIS did not register the housing with the NCDOL prior to furnishing it to Plaintiffs. Id. at 9. Due to the unpredictability of crab supply, Plaintiffs worked variable hours each week. Id. at 15.

Plaintiffs' Amended Complaint sets forth three causes of action pursuant to the FLSA, the NCWHA and North Carolina contract law. First, Plaintiffs assert an FLSA claim with a proposed opt-in plaintiff class under 29 U.S.C. § 216(b), alleging violations of the federal minimum wage provision by (1) not reimbursing Plaintiffs for transportation, passport, visa and border crossing fees in the first workweek, which effectively brought Plaintiffs' first week's wages below the federal minimum wage; (2) deducting the costs of replacement knives from Plaintiffs' pay and requiring Plaintiffs to purchase items required for work, to the extent these deductions and purchases reduced wages below the minimum wage; and (3) charging rent for housing that (a) exceeded the actual cost and included a profit to Defendants, (b) resulted in a reduction of the wages paid to Plaintiffs to an amount or rate below the minimum wage; and (c) violated the North Carolina Migrant Housing Act ("NCMHA"). Am. Compl. ¶¶ 46-47 [DE-12]; Pls.' Mem. at 1, 3 [DE-26.2].

Second, Plaintiffs assert the following class claims pursuant to the NCWHA: (1) de facto deductions which resulted in Defendants' failure to pay all wages when due during their first workweek; (2) failure to obtain written authorizations from Plaintiffs prior to making wage deductions; and (3) failure to compensate Plaintiffs for each pound of crabmeat picked through the use of an inaccurate weighing and/or recording system. Am. Compl. ¶¶ 50, 65-66 [DE-12]; Pls.' Mem. at 1-3 [DE-26.2].

Finally, Plaintiffs assert a class claim under the common law of contracts, alleging a breach of contract as a result of Defendants' failure (1) to provide Plaintiffs forty hours of work each week; and (2) to pay Plaintiffs the required wage per hour. Am. Compl. ¶ 72 [DE-12]; Pls.' Mem. at 2-3 [DE-26.2].

Defendants acknowledge the existence of triable issues of fact as to (1) the amount of "some" transportation and immigration expenses incurred by Plaintiff; (2) the deductions for the costs of knives from Plaintiffs' wages without receiving written approval in advance; and (3) the collection of "some" rents for housing that was not registered with the North Carolina DOL. Defs.' Mem. at 11 [DE-31]; Defs.' Resp. at 2-3 [DE-37].


Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); FED.R.CIV.P. 56(c). The party seeking summary judgment initially must demonstrate the absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading, see id., but "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting FED. R.CIV.P. 56(e)). Summary judgment is not a vehicle for the court to resolve disputed...

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