Sejour v. Steven Davis Farms, LLC, Case No. 1:10–cv–96–MW/GRJ.

• Decision Date: 01 July 2014
• Docket Number: Case No. 1:10–cv–96–MW/GRJ.
• Citation: 28 F.Supp.3d 1216
• Parties: Claude SEJOUR, et al., Plaintiffs, v. STEVEN DAVIS FARMS, LLC and Steven M. Davis, Defendants.
• Court: U.S. District Court — Northern District of Florida

28 F.Supp.3d 1216

Claude SEJOUR, et al., Plaintiffs,
v.
STEVEN DAVIS FARMS, LLC and Steven M. Davis, Defendants.

Case No. 1:10–cv–96–MW/GRJ.

United States District Court, N.D. Florida, Gainesville Division.

Signed July 1, 2014

Motion granted.

[28 F.Supp.3d 1220]

C. C. Abbott, Amanda Marie Caldwell, Florida Rural Legal Services Inc., Fort Meyers, FL, for Plaintiffs.

Terry Leigh Zinn, Terry Zinn PA, Alachua, FL, for Defendants.

ORDER GRANTING H–2A FARMWORKER PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
MARK E. WALKER, District Judge.

This matter comes before this Court on the motion of twenty-nine (29) H–2A Plaintiffs for Partial Summary Judgment. ECF No. 134.¹ In particular all of these

[28 F.Supp.3d 1221]

Plaintiffs seek partial summary judgment regarding the reimbursement of their transportation and visa expenses under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201– 209, and the H–2A regulations, 20 C.F.R. § 655.100 et seq. Further, a smaller subset of Plaintiffs comprised of Wislain Wilson Orelus, Jimmy Jean–Louis, Gesner Elta Duverny, St. Juste Saintamand Orelus, Mikelson Lacour, Lalanne Guerrier, Negus Almonor, Olibrice Orelus, Ronald Jean, and Brunet Martin (hereinafter “Group II Plaintiffs”) as well as Modeline Sejour (hereinafter “Group III Plaintiff”) seek summary judgment for unpaid wages under the FLSA, the federal regulations governing the H2A program,² and the Florida Minimum Wage Act, Fla. Stat. § 448.110.

Defendants, Steven Davis (“Davis”) & Steven Davis Farms, LLC, acknowledge they did not reimburse Plaintiffs for any of their pre-employment expenses. Defendants contend they are not liable for these sums because Plaintiffs are not covered by the FLSA or the H–2A regulations since they are entitled to various defenses which preclude liability. Defendants argue they are entitled to an exemption under the FLSA for being a small business with less than 500 man days. Defendants also argue that Plaintiffs are not entitled to reimbursements for their travel and subsistence costs because Plaintiffs did not complete 50% of the contract. Defendants argue they are exempt from their obligations under the H–2A contract because “an act of God” relieved them of liability. Finally, Defendants argue they are not liable for these sums because they did not “employ” Plaintiffs within the meaning of the FLSA, the Florida Minimum Wage Act, or the H–2A regulations.

Having reviewed the record and supporting evidence submitted by both parties, this Court finds Defendants are not entitled to a 500 man day exemption under the FLSA because it was not raised as an affirmative defense. This Court finds Defendants' argument that Plaintiffs are not entitled to transportation and visa expenses because they abandoned the job prior to completing 50% the contract to be inapplicable and not supported by the evidence on the record. Furthermore, this Court finds Defendants' “act of God” defense inapplicable to this case. The facts support a finding that Defendants are joint employers, along with crew leaders Carline Ceneus (“Ceneus”) and Cabioch Bontemps (“Bontemps”). Further, there is no issue of material fact with respect to any of Plaintiffs' claims for reimbursement of transportation and visa expenses, nor is there any issue of material fact with respect to the Group II and III Plaintiffs' wage claims.

FACTUAL SUMMARY

Davis owns and rents land in Alachua County to grow vegetables, and operates Steven Davis Farms, LLC, which owns a packing shed. Plaintiffs are foreign guest workers who worked under H–2A visas harvesting peas and beans on Davis' farm

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property, and grading peas and beans in the packing shed.

In early 2008, Davis purchased his packing shed. Steven Davis Farms, LLC was created to operate the packing shed, with Davis as the principal owner and chief executive officer. Even though it was intended that the farm, with Davis as sole proprietor, and the packing shed operated by Steven Davis Farms, LLC, would operate separately, the financial accounts of the two are substantially intertwined. Among other things, the operating expenses for the farm, including the cost of harvesting crops, are paid by Steven Davis Farms, LLC.

Prior to the 2008 season, Davis told Ceneus that he wanted to bring in guest workers under the H–2A visa program to harvest his fields. Ceneus is a family friend of Davis, who had used her brother, Bontemps, to recruit labor for nearly a decade. Davis helped Ceneus fill out the H–2A applications, and Ceneus did the “legwork” to obtain H–2A visas for guest workers who would be employed on Davis' operations. Davis wrote a letter in support of Ceneus' application for foreign labor certification; Ceneus was granted certification and traveled to Haiti to recruit workers for Davis.

In May of 2008, Ceneus traveled with a group of H–2A workers from Haiti to the United States to work at Defendants' farm. The following Plaintiffs arrived with Ceneus in May of 2008: Lysner Valcin, Jean Robert Sejour, Richerson Sejour, Claude Sejour, Emmanuel Mondesir, Elin Medar, Jean Francois Cajour, Edil Exainvil, Arold Pierre, Jodany Sejour, Marie Claudette Milien, Juslaine Auguste, Oddette Antione, Gladys Geffrard, Manouche Sejour, Derdine Riodin, Jocelyne Pierre, and Plenita Laurant. These workers are referred to by the parties as the Group I Plaintiffs.³ Shortly after arriving in the United States, Group I Plaintiffs began to work on Davis' farm, and were employed for varying amounts of time from May, 2008, until November, 2008, appearing on Ceneus' payroll records anywhere from eight (8) to eighteen (18) weeks.⁴ While Davis had hired Ceneus to be the farm labor contractor in 2008, she was not always present on the farm. When Ceneus was not present, her brother, Bontemps, was responsible for supervising the workers.

[28 F.Supp.3d 1223]

In October of 2008, a second group of H–2A workers began working at Davis' farm. The Group II Plaintiffs are as follow: Jimmy Jean Louis, St. Juste Santamand Orelus, Mikelson Lacoeur, Lalanne Guerrier, Negus Almonor, Olibrice Orelus, Ronald Jean, Brunet Martin, Gesner Duverny, and Wislain Wilson Orelus. The Group II Plaintiffs were admitted to the United States pursuant to a foreign labor certification application filed on behalf of Puroul Picking. Plaintiffs were recruited in Haiti by Willy Paul Edouard (“Edouard”) and Ceneus. The foreign labor certification did not list Davis' farming operation as the worksite; however, Plaintiffs worked at Davis' operation under the supervision of Bontemps and Ceneus.

Finally, Plaintiff, Modeline Sejour, the sole Group III Plaintiff, arrived as an H–2A worker pursuant to a foreign labor certification application for P.A. Farm Labor Services, having been recruited in Haiti by Pierre Avesca. Again, the foreign labor certification did not list Davis' farming operation as the worksite; however, Plaintiff worked at Davis' operation.

SUMMARY JUDGMENT

A party may be granted summary judgment when “there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The moving party bears the initial burden of informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact.” Rice–Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In order to defeat a motion for summary judgment, the opposing party must establish that there is a genuine dispute of material fact, and “it must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact in dispute is material only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The adverse party may not rest upon the mere allegations or denials of its pleading, but must set forth specific facts showing that there is a genuine issue for trial. Rice–Lamar, 232 F.3d at 840.

DEFENDANTS' COVERAGE UNDER THE FAIR LABOR STANDARDS ACT

Defendants argue they are entitled to claim an exemption under the FLSA, 29 U.S.C. § 213(a)(6)(A), for being a small business with less than 500 man days. An agricultural employee is exempted from the minimum wage and overtime coverage of the FLSA if the employee works for an employer who did not use more than 500 man days of agricultural labor during a preceding calendar quarter. 29 U.S.C § 213(a)(6)(A). A man day is defined as “any day during which an employee performs any agricultural labor for not less than one hour.” Centeno–Bernuy v. Becker Farms, 564 F.Supp.2d 166, 177 (W.D.N.Y.2008) (quoting 29 U.S.C. § 203(u)). “The regulations note that ' 500 man-days is approximately the equivalent of seven employees employed full-time in a calendar quarter.' ” Centeno–Bernuy, 564 F.Supp.2d at 177 (citing 29 C.F.R. § 780.305(a)).

Defendants contend that the corporation, Steven Davis Farms, LLC, was not formed until 2008 and could not have had 500 man days during any of the calendar quarters of the previous year. Defendants also contend there is an issue of fact with respect to Defendant Davis' exemption under the 500 man day provision, arguing

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that they are entitled to a hearing on whether the exemption exists. However, Defendants failed to raise this exemption as an affirmative defense.

Defendants are not entitled to claim a 500 man day exemption where they did not raise the exemption as an affirmative defense. Rotondo v. Georgetown, 869 F.Supp. 369, 373 (D.S.C.1994) (explaining that “the assertion of an exemption from the mandates of the FLSA is an affirmative defense that is waived if it is not specifically pleaded by a defendant” (citing ...