Roslies-Perez v. Superior Forestry Service, Inc.

• Decision Date: 28 July 2009
• Docket Number: No. 1:06-00006.,1:06-00006.
• Citation: 652 F.Supp.2d 887
• Parties: ROSLIES-PEREZ, et al., Plaintiffs, v. SUPERIOR FORESTRY SERVICE, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

652 F.Supp.2d 887

ROSLIES-PEREZ, et al., Plaintiffs, v. SUPERIOR FORESTRY SERVICE, INC., et al., Defendants.

No. 1:06-00006.

United States District Court, M.D. Tennessee, Columbia Division.

July 28, 2009.

COPYRIGHT MATERIAL OMITTED

Andrew H. Turner, Mary C. Bauer, Kristi L. Graunke, Montgomery, AL, Bruce Goldstein, Virginia Elizabeth Ruiz, Farmworker Justice, Washington, DC, Erin Trodden, Tim A. Freilich, Charlottesville, VA, James M. Knoepp, Atlanta, GA, Joshua Karsh, Matthew J. Piers, Hughes, Socol, Piers, Resnick & Dum, Ltd., Marni Willenson, Farmworker Justice, Chicago, IL, Richard L. Tennent, Bell, Tennent & Frogge, PLLC, Nashville, TN, for Plaintiffs.

T. Harold Pinkley, Miller & Martin, LLP, Nashville, TN.

John C. Everett, Everett, Wales & Mitchell, Fayetteville, AR, John J. Griffin, Jr., Kay, Griffin, Enkema & Brothers, Kara E. Shea, Miller & Martin, LLP, Fredrick J. Bissinger, Wimberly, Lawson, Seale, Wright & Daves, PLLC, Ana L. Escobar, Nashville, TN, for Defendants.

MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

Plaintiffs, temporary foreign guestworkers with H-2B visas, filed this action as a collective action against the Defendants: Superior Forestry Services, Inc. and several of its owners and managers seeking injunctive relief and back wages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq. ("AWPA"). The Court certified this action as a collective action under the FLSA (Docket Entry No. 205) and under Fed.R.Civ.P. 23(b)(3) on Plaintiffs' AWPA claims. (Docket Entry No. 303).

As pertinent here, in prior rulings, the Court twice held the Defendants in contempt for their repeated violations of the May 23, 2006 Protective Order (Docket Entry No. 91) in this action. (Docket Entry Nos. 168 and 350). In its September 5, 2008 ruling, the Court first found that one of Defendants' supervisors had violated the May 23rd protective order by communicating with putative class members on the merits of this litigation and that Defendants had failed to take necessary action to prevent such violations. (Docket Entry Nos. 167 and 168). The Court also found that Defendants had violated a subsequent Court directive that the Defendants' agents instruct their crew leaders again about the May 23rd protective order. Given the history of Defendants' derisive statements about this action and their clear noncompliance, the Court found a "strong inference that their clear failure to comply . . . was to threaten workers with adverse job and other consequences if they joined this action." (Docket Entry No. 349, at p. 13). As a remedy, the Court ordered an extension of the opt-in period for putative class members to file their consents to join the FLSA claims and tolled the statute of limitations on those claims for that purpose. The Court also ordered Defendants to pay for a broadcast notice of class counsel's meeting with potential class members in Mexico, as well as fees and costs associated with class counsel's arranging and conducting meetings with putative class members. This meeting was to provide putative class members a balanced view of this action and to inform potential class members of their rights under the FLSA and AWPA. The Court also ordered Defendants to pay Plaintiffs' fees and costs incurred in litigating the contempt petition.

Before the Court is Plaintiffs' third motion for contempt (Docket Entry No. 387) for Defendants' additional violations of the Court's May 23rd protective order and their interference with the remedies imposed in the Court's prior contempt orders. (Docket Entry Nos. 349 and 350). Plaintiffs' third contempt motion arises out of an incident at the Mexico meeting involving Manuel Morales, Defendants' recruiter and supervisor in Mexico. Morales is also named Defendant in this action. In sum, Plaintiffs contend that on November 12, 2008, while Plaintiffs' counsel were in Tlaxiaco, Mexico to meet with class members and potential class members, as ordered by the Court, Morales came to the meeting location and monitored Plaintiffs' counsel's meetings over several hours. Plaintiffs submitted evidence that Morales intentionally went to the designated meeting location after hearing one of the radio announcements of the meeting's time and place. After Plaintiffs' counsel approached Morales to tell him that his presence was unwelcomed and that he could face a contempt petition for violation of the Court's Order, Morales refused to leave. According to Plaintiffs, Morales fielded a telephone call from a potential class member and talked to him about this action. Plaintiffs contend that Morales's behavior, and Morales's supervisor's failure to take any steps to prevent his conduct at that meeting, violate the May 23rd protective order and undermined the Court's remedy to cure Defendants' contempt. Plaintiffs further contend that Defendants' prior collective conduct warrants a partial default judgment on the merits.

In response, Defendants assert that Plaintiffs' third motion is based upon speculation and unreasonable inferences from ambiguous facts. Defendants insist that they were unaware of the specific time and place of the meeting of Plaintiffs' counsel with putative class members.

For the reasons set forth below, the Court again finds Morales and Hector Santillan, his supervisor and the Defendants' manager, engaged in contumacious conduct in violation of the May 23rd protective order by Morales's intimidating presence at Plaintiffs' counsel's meeting that Santillan failed to prevent. In the Court's view, the appropriate sanction is to preclude the Defendants from offering proof on the amount of Plaintiffs' damages because the Defendants' continuing contumacious conduct has been designed to lower their financial exposure, if the Defendants were held liable on the merits of Plaintiffs' claims.

A. FINDINGS OF FACT

1. Defendants' Prior Contumacious Acts

Paragraph 1 of the May 23rd Order barred communications by Defendants, their employees, agents and intermediaries with the Plaintiffs and putative class members about this lawsuit. (Docket Entry No. 91 at ¶ 1). This Order was based upon proof that an SFSI crew leader had engaged in acts of coercion and retaliation against opt-in-Plaintiffs. Given the Plaintiffs' and putative class members' limited education, economic resources and language limitations, the Order also barred acts of future intimidation or coercion. The Order provided that: "Defendants are hereby and immediately prohibited from directing, permitting, or undertaking, either directly or through any employee, agent, or other intermediary, activities that intimidate, threaten, restrain, coerce, or in any manner discriminate against plaintiffs, putative class members, witnesses, potential witnesses, or their family members . . . ." Id. at ¶ 2. The Defendants first violated the order by failing to instruct employees immediately on its provisions. (Docket Entry No. 91, 114 and Docket Entry No. 168).

On September 5, 2008, the Court held Defendants in contempt again after another crew leader discussed this action with potential class members in violation of the May 23rd protective order. The Court also found that Defendants had violated the Court's clear October 22, 2007 directive issued from the bench, requiring the Defendants to instruct their supervisors immediately that they were not to speak to class members about this action. That directive placed Defendants on notice that future violations of the protective order would involve a harsher sanction. (Docket Entry No. 318, Exhibit A, October 22, 2007 Transcript at 58). In its September 5th ruling, the Court found that the Defendants' prior efforts to inform their supervisors of the protective order "were at best half-hearted." (Docket Entry No. 349, Memorandum at p. 12). As a defense, Defendants relied upon a memorandum that was in English. The Court found that memorandum in English was inadequate "[i]n a workforce of employees and agents with limited literacy in English," and that "circulation of a memorandum in English is designed to ensure noncompliance." Id. The Court also found a "strong inference" that the Defendants' clear failure to comply with the October 22, 2007 directive would allow workers "to be threatened with adverse job and other consequences if they joined this action." Id. at p. 13.

To remedy this repeated contempt, the Court tolled the FLSA statute of limitations, kept the opt-in period open, awarded attorney's fees and costs, and ordered corrective notice. Id. at pp. 13-17. For corrective notice, the Court found that direct contact between Plaintiffs' counsel and putative class members was necessary "to remedy the damage of Defendants' repeated noncompliance and derisive statements about this action." Id. at p. 16. The Court ordered class counsel to arrange and conduct the meetings, and ordered Defendants to cooperate. Id. at pp. 16-17. Fees and costs were awarded for the litigation of the contempt motion and for arranging and conducting the class member meetings.

To plan for the corrective notice, Plaintiffs took discovery to determine where class members and potential class members would be in Mexico or the United States in the fall of 2008. After determining that the majority of potential class members were likely to be in Tlaxiaco, Mexico, the order was modified by agreement to provide that Plaintiffs' counsel would travel to Mexico to conduct the meetings with class members. (Docket Entry Nos. 371-372).

2. The November 12, 2008 Incident

On November 8, 2008, Tim Freilich, one of Plaintiffs' lawyers and Viridiana Guido, a paralegal traveled to Tlaxiaco, Mexico to conduct the meetings ordered by the Court. Approximately 500 class members and potential FLSA opt-in Plaintiffs maintain their permanent residences in and around Tlaxiaco. Before the meetings, Plaintiff's counsel caused...