Stewart v. James

• Decision Date: 29 June 1981
• Docket Number: No. 78 C 2736.,78 C 2736.
• Citation: 519 F. Supp. 315
• Parties: Sidney STEWART, Samuel B. Thomas, Ricardo Richards, Baldwin Wilson, Glen Teixeira, Hector Cruz, Victor Rios, Titus Gay, Victor Lewis, Moise Caban and Theophilus Thomas, Plaintiffs, Kenneth Foster, Proposed Plaintiff-Intervenor, v. Bernard JAMES, Frank James, Vapour Investors Corporation, Bernard James d/b/a King's Palace, Defendants.
• Court: U.S. District Court — Eastern District of New York

519 F. Supp. 315

Sidney STEWART, Samuel B. Thomas, Ricardo Richards, Baldwin Wilson, Glen Teixeira, Hector Cruz, Victor Rios, Titus Gay, Victor Lewis, Moise Caban and Theophilus Thomas, Plaintiffs Kenneth Foster, Proposed Plaintiff-Intervenor, v. Bernard JAMES, Frank James, Vapour Investors Corporation, Bernard James d/b/a King's Palace, Defendants.

No. 78 C 2736.

United States District Court, E. D. New York.

June 29, 1981.

Farmworker Project, Riverhead, N. Y. by Anthony Szczygiel, New York City, for plaintiff.

John N. Griggs, New York City, for defendants.

MEMORANDUM ORDER

NEAHER, District Judge.

This action to recover damages for violations of the Farm Labor Contractor Registration Act, 7 U.S.C. § 2041 et seq. (1976) ("the Act"), the regulations thereunder, 29 C.F.R. § 40.1 et seq., and other federal and State laws, is before the Court on three motions. First, the eleven main plaintiffs, who allege they are "migrant workers" and that defendants Bernard James, Frank James and Vapour Investors Corp. are "farm labor contractors" as the Act defines those terms, 7 U.S.C. § 2042(b), (g), have moved for partial summary judgment in their favor on nine of the claims arising from defendants' purported violations of the Act. Jurisdiction is based on 7 U.S.C. § 2050a(a). Second, they also seek a default judgment against defendant Frank James for his failure to appear for a court ordered deposition, or, in the alternative, an award of costs, including attorney's fees. Third, an additional party, Kenneth Foster, seeks leave to intervene in this action. For the reasons that follow, the motion for a default judgment against Frank James is granted, the motion to intervene is denied, and partial summary judgment in plaintiffs' favor is granted on the claims arising under the Act.

Before turning to the legal merits of the motions it will be helpful to set out the following facts. These have been drawn from plaintiffs' affidavits submitted in support of the motion for summary judgment, from defendants' responses to plaintiffs' requests for admissions, and from plaintiffs' uncontested statement of material facts pursuant to General Rule 9(g) of the Rules of this Court. None of these facts has been controverted by the single affidavit submitted by defendant Bernard James.

In the summer of 1977 Bernard James traveled to Winter Haven, Florida, and spoke with farm labor contractors based there. One of them informed James that he was registered as a farm labor contractor and had special authorization to transport and house migrant workers. James also was told that employment could be found for any workers James recruited. The Winter Haven farm labor contractor, or crew leader, offered James the use of a bus to transport workers from New York City to Florida.

After his return to Brooklyn, New York, Bernard James composed the following advertisement which was run in several New York newspapers in December 1977:

"MEN WANTED (100)

For jobs in Florida. Transportation and boarding provided. Earnings from $200-$350 a week for 6 months or more. For further information: (212) 462-8118."

The telephone number listed in the advertisement is that of "King's Palace," a nightclub operated by Bernard James at 366 Clarkson Avenue in Brooklyn. The Clarkson Avenue address is also the principal place of business of Vapour Investors Corporation, a New York corporation whose sole incorporator, and sole officer and director since incorporation is Bernard James.

Over 200 persons, including plaintiffs and proposed intervenor, responded to the advertisement, and were directed to the King's Palace for complete information. With the exception of plaintiff Victor Rios, Bernard James had each plaintiff sign a form contract with Vapour Investors. Victor Rios signed an identical contract at the behest of one "Wilson." At no time did Bernard James or Wilson show any plaintiff any identification or certificate of registration as a farm labor contractor.

The contract purported to guarantee plaintiffs between $200 and $350 a week for picking citrus at a per box rate of $.45 for oranges and $.35 for grapefruit, with employment to last at least six months. The contract provided for several deductions from weekly pay, including mandatory amounts of $35 for food and lodging, and $25 for compulsory savings. It also listed a transportation charge of $300 that was to be paid through deductions from the weekly pay.

Transportation to Florida from Brooklyn was by a fifteen passenger van and by the school bus the Winter Haven crew leader had promised Bernard James in the summer. One of the drivers of the bus was Bernard's brother, Frank James, also called Glen Frank James. On arrival each plaintiff was put in a single room about 60 feet by 30 feet with approximately 14 other workers. The toilets, beds and bedding were old and filthy.

Bernard James had arranged for the housing of plaintiffs upon their arrival through the farm labor contractor he had spoken with in the summer. Through the same person he had arranged for each plaintiff to be employed at the groves. The Winter Haven crew leader, in housing plaintiffs and taking them to the groves during the days they stayed on that job, was acting as the agent of Bernard James and Vapour Investors.

At no time did any defendant register as a farm labor contractor with the Secretary of Labor. At no time did any defendant exhibit to any plaintiff a certificate of registration as a farm labor contractor. Nowhere on the housing premises in Florida was there posted in a conspicuous manner a written statement of the terms and conditions of occupancy. Nowhere at the employment site was there posted in a conspicuous manner a written statement of the terms and conditions of employment. At no time did any defendant file with the Secretary of Labor a statement identifying the van and bus and the Florida housing as vehicles and real property that were to be used for the transport and housing of migrant workers. At no time did any defendant file with the Secretary of Labor proof that the vehicles and housing used to transport and house migrant workers complied with the applicable federal and State safety and health standards. At no time did defendants obtain or file proof with the Secretary of Labor that they had obtained the liability insurance required to be maintained on vehicles used to transport migrant workers.

The Parties are Within the Coverage of the Act

The Act defines "farm labor contractor" as any corporation or individual "who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers ... for agricultural employment." 7 U.S.C. § 2042(b). It is plain that Bernard James and Vapour Investors come within this definition.

First, it is beyond dispute that the acts of Vapour Investors and Bernard James previously described constituted the recruitment, solicitation, hiring, furnishing and transportation of the eleven plaintiffs for agricultural employment in Florida. See 29 C.F.R. § 41.7 (the terms "recruits, solicits, hires, furnishes and transports" "are to be given their ordinary meaning as each is defined in the unabridged edition of Webster's New International Dictionary"). It is equally certain that plaintiffs are "migrant workers," since they are "individuals ... who performed agricultural labor, on a seasonal or other temporary basis." 7 U.S.C. § 2042(g). See 29 C.F.R. § 41.14(b).

Turning next to the question whether defendants performed the above-described acts for a "fee" as the statute requires, it is established that the employment contracts provided that each plaintiff was to pay Vapour Investors $300 for the transportation to Florida. We hold that the promise to pay transportation costs amounted to a statutory "fee," i. e., "money or other valuable consideration" that was "promised to be paid" to Vapour Investors for its services as a farm labor contractor. See 7 U.S.C. § 2042(c); 29 C.F.R. § 41.5. Furthermore, it is undisputed that Bernard James drew salary from Vapour Investors depending on the success of its ventures. This salary arrangement also was a "fee" within the meaning of the Act, since it was money promised James for his services in successfully recruiting, soliciting, hiring and furnishing plaintiffs for agricultural employment in Florida. Thus both Bernard James and Vapour Investors must be considered "farm labor contractors" within the meaning of the Act. See 29 C.F.R. § 41.6. ("In view of the phrase `either for himself or on behalf of another person,' it does not matter whether the person is engaging in the activities of a farm labor contractor for his own personal use and benefit or for or on behalf of his employer, contractor, or some other person.")

Motion for Default Judgment against Frank James

Plaintiffs' complaint alleged that since Bernard James' brother, Glen Frank James, drove the bus to Florida, he also could be considered a "farm labor contractor" and liable for violations of the Act. It is not necessary that the alleged farm labor contractor have performed each of the activities listed in 7 U.S.C. § 2042(b); merely transporting migrant workers to agricultural employment for a fee would be sufficient to bring Frank James within the Act's coverage. See Marshall v. Buntings' Nurseries of Selbyville, Inc., 459 F.Supp. 92, 96, 97-98 (D.Md.1978); Usery v. Golden Gem Growers, Inc., 417 F.Supp. 857, 861 (M.D.Fla. 1976).

An answer was submitted on behalf of all defendants, including Frank James, by defendants' attorney. Plaintiffs, however, have been frustrated from obtaining deposition discovery from Frank James, despite an order of this Court directing him to appear for his deposition. That order was entered after the Magistrate had recommended that defendants' answer be stricken, and a default judgment entered against them because of their failure on two occasions to appear for regularly scheduled...