De Luna-Guerrero v. North Carolina Grower's Ass'n, 4:02-CV-173-H(4).

• Decision Date: 30 September 2004
• Docket Number: No. 4:02-CV-173-H(4).,4:02-CV-173-H(4).
• Citation: 338 F.Supp.2d 649
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Felipe De Jesus DE LUNA-GUERRERO, et al., Plaintiffs, v. THE NORTH CAROLINA GROWER'S ASSOCIATION, INC., and Marcus Thigpen, et al., Defendants.

Page 649

338 F.Supp.2d 649

Felipe De Jesus DE LUNA-GUERRERO, et al., Plaintiffs, v. THE NORTH CAROLINA GROWER'S ASSOCIATION, INC., and Marcus Thigpen, et al., Defendants.

No. 4:02-CV-173-H(4).

United States District Court, E.D. North Carolina, Eastern Division.

September 30, 2004.

COPYRIGHT MATERIAL OMITTED

Robert J. Willis, Law Offices of Robert J. Willis, Carol L. Brooke, Jack Holtzman, Raleigh, NC, for Plaintiffs.

W.R. Loftis, Jr., Constangy, Brooks, & Smith, LLC, Winston-Salem, NC, for Defendant.

ORDER

MALCOLM J. HOWARD, District Judge.

This matter is before the court on the following motions:

1. Motion for Bilateral Certification of North Carolina Wage and Hour Act and Contract Claims for Non-Payment of Wages When Due [Docket Entry ("DE") # 2];

2. Motion for Conditional Certification of Collective Action and to Send Court-approved Notice to Putative Members of Collection Action pursuant to 29 U.S.C. § 216(b) [DE # 4];

3. Motion to Send Court-Approved Notice to Putative Members of Defendant Class pursuant to Rule 23(d)(2) [DE # 5];

4. Defendants' Motion for Summary Judgment [DE # 17];

5. Amended Motion to send Court-Approved Notice to Putative Members of Collective Action pursuant to 29 U.S.C. § 216(b) [DE # 45];

6. Plaintiff's Summary Judgment Motion [DE # 55]; and,

7. Motion to Strike affidavits of Stan Eury and James Holt served on 15 January 2004 and to exclude any trial testimony from James Holt [DE # 65].

The court has received responses and replies to the motions for summary judgment. These matters are ripe for adjudication.

The original complaint was filed on December 23, 2002 and has been amended twice since that time. Plaintiff's second amended complaint sets forth three causes of action: (1) a class claim pursuant to the North Carolina Wage and Hour Act (NCWHA), alleging a violation of the NCWHA because of defendants' failure to reimburse their workers for transportation, H2A visa, border crossing fees and related costs incurred in traveling from their home towns in Mexico to North Carolina, and resulting in defendants' failure to pay all wages when due during their first workweek; (2) a class claim under the common law of contracts, alleging a breach of contract as a result of the defendants' failure to pay their workers for transportation, H2A visa, border crossing fees and related costs incurred in traveling from their home towns in Mexico to North Carolina; and, (3) a Fair Labor Standard Act (FLSA) claim for the named plaintiffs with a proposed opt-in plaintiff class under 29 U.S.C. § 216(b), alleging a minimum wage provision violation because of defendants' failure to reimburse plaintiffs for visa fees, border crossing fees, and transportation expenses in the first workweek, which effectively brought the plaintiffs' first week's wages below the federal minimum wage.

STATEMENT OF THE FACTS

In 2000, 2001 and 2002, defendant NCGA sought permission to bring Mexican agricultural laborers to work on their farms by filing temporary labor certification applications with the United States Department of Labor ("DOL"). Those applications called "Clearance Orders," set forth the number of workers needed by the defendants, the period of employment, and the terms and conditions of work being offered by the defendants. The DOL approved the terms of work described in the defendants' clearance orders, and granted their request for H2A visas to allow Mexican workers to fill the jobs described in those orders. Once approved, the clearance orders became the contract under which workers were employed. 20 C.F.R. § 655.102(b)(14).

The terms of H2A visas are controlled by statute, 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1188, as well as DOL regulations applicable to the temporary labor certification process. 20 C.F.R. § 655.100 et seq. Workers admitted on H2A visas may only fill the jobs described in the sponsoring employer's approved Clearance Order. Upon completion of the work period described in the Clearance Order, or the worker's termination, whichever occurs first, the worker is required to return to his home country. 8 C.F.R. § 214.2(h)(5)(ix).

Each of the plaintiffs paid their own visa, transportation and subsistence fees. Plaintiffs detail the expenses as follows: (1) $145 visa application and issuance fees, and 100 pesos (approximately $10) for local transportation to arrange for the visas as well as a $6 fee for the issuance of an I-94 immigration document paid to the Immigration and Naturalization Service at the U.S./Mexico border ("visa expenses"); (3) $31-$45 for bus fare from plaintiffs' home villages to the U.S./Mexico border and $85-$100 for bus fare from the U.S./Mexico border to North Carolina ("transportation expenses"); and, (4) $27-$45 for subsistence expenses for travel from plaintiffs' home villages to North Carolina ("subsistence expenses").

Defendants never reimbursed plaintiffs and putative members of the plaintiff classes for the $161 in visa and I-94 document expenses they incurred. The defendants reimbursed inbound transportation and subsistence expenses from the plaintiffs' home villages to North Carolina only after the contract period was half over, to those workers who were still employed. Defendants did not reimburse the plaintiffs and other putative class members for inbound transportation expenses when their employment ended prior to them completing one-half of the contract period.

Plaintiffs claim that they failed to earn the federal minimum wage of $5.15 per hour during their first workweek, and in fact, had negative earnings for that first week in 2000, 2001 and 2002.

SUPPLEMENTAL JURISDICTION

This court has jurisdiction over the FLSA claims under 28 U.S.C. § 1331, as the claim raises a federal question. This court may exercise jurisdiction over the state law claims under 28 U.S.C. § 1367(a), supplemental jurisdiction, since the state law claims form part of the same case or controversy. Congress also has made clear that this supplemental jurisdiction "shall include claims that involve the joinder or intervention of additional parties." 28 U.S.C. § 1367(a). This supplemental jurisdiction, though allowed under 28 U.S.C. § 1367(a), is discretionary under 28 U.S.C. § 1367(c):

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction (3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

The court believes there are exceptional circumstances here which provide a compelling reason to decline to exercise jurisdiction over the state law claims. Named plaintiffs wish to bring a bilateral class action under Federal Rule of Civil Procedure 23 consisting of an "opt-out" plaintiff class involving nine to fourteen thousand H2A workers as well as a defendant class consisting of approximately one thousand workers. These classes would be in addition to the proposed representative "opt-in" collective action under 29 U.S.C. § 216(b) with nine to fourteen thousand potential plaintiffs.

However, the size of the class is not this court's main concern. The court believes that the existence of the three different classes proposed here, of varied types and sizes, will cause too much confusion in this particular case. This case necessitates that notification be sent to thousands of foreign nationals who have worked for the defendant NCGA under the H2A program. These potential plaintiffs, many of whom do not speak English and are unfamiliar with the legal system of this country, will be even more confused by multiple notifications regarding two separate classes and separate claims. This problem is confounded by the fact that the collective action under the FLSA is an "opt-in" class, while the proposed class action under Rule 23 is an "opt-out" class. In addition, the state law claims seek to certify a class of defendants as well. This certification will require another set of notices to be sent to a different class of persons. While none of these concerns standing alone may merit "exceptional circumstances" to decline to exercise jurisdiction, all of these concerns combined lead this court to believe that the court should decline to exercise its jurisdiction over the state law claims. Class actions are intended to promote judicial efficiency where large groups of people are involved. Here, however, judicial efficiency will be better promoted by dismissal of the state law claims for lack of jurisdiction. Then this court can properly and efficiently administer the collective action proposed by the named plaintiffs pursuant to 28 U.S.C. § 216(b). Plaintiffs are free to pursue their state law claims, including potential class claims, in the state courts. Therefore, plaintiffs' claims under the NCWHA and the common law of contracts are hereby DISMISSED for lack of jurisdiction.

Inasmuch as this court has declined to exercise jurisdiction over the plaintiff's state law claims, the following motions are deemed moot: Motion for Bilateral Certification of North Carolina Wage Hour Act and Contract Claims for Non-Payment of Wages When Due and Motion to Send Court-Approved Notice to Putative Members of Defendant Class pursuant to Rule 23(d)(2).

CERTIFICATION OF 216(B) COLLECTIVE ACTION

The named plaintiffs move the court for conditional certification of the collective action and to send court-approved notice to putative members of the collective action pursuant to 29 U.S.C. § 216(b). The named plaintiffs seek to include all of the following persons in the collective action:

Each similarly situated employee of defendants NCGA and/or Marcus Thigpen who was jointly or severally employed by NCGA...