Opinion
04 Civ. 4005 (LTS) (DFE).
August 16, 2005
MEMORANDUM AND ORDER
On May 4, 2005, Judge Swain referred this case to me for general pretrial supervision, and she forwarded to me Mr. Marcus's letter of April 28 and Mr. Brenner's letter of May 4. I ruled on them in my Memorandum and Order dated May 12, 2005, which said: "I have reviewed those letters, and I deny each of Mr. Marcus's requests, for the reasons set forth by Mr. Brenner."
Mr. Marcus's third request had sought "documents relating to Plaintiffs' ability to work in the United States." It cited Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275 (2002), and Sanango v. 200 East 16th Street Housing Corp., 788 N.Y.S.2d 314 (1st Dep't 2004), and particularly their holdings that "claims for unearned wages . . . cannot be collected by immigrants who are ineligible to work in the United States."
Mr. Brenner's May 4 letter had retorted by citing Liu v. Donna Karan International Inc., 207 F.Supp.2d 191 (S.D.N.Y. 2002), and a case cited and relied on by Judge Knapp — Flores v. Albertson's, Inc., 2002 WL 1163623, 2002 U.S. DIST. LEXIS 6171 (C.D.Cal. April 9, 2002) (Matz, D.J.). Mr. Brenner correctly described the Flores decision as "finding workers are entitled to the protections of FLSA regardless of immigration status and drawing [a] distinction between `back pay' in Hoffman for work not performed and `back pay' under FLSA for recovery of unpaid wages." This distinction covers Sanango as well as Hoffman.
On July 6, 2005, Mr. Marcus and Mr. Brenner sent me a joint letter. Mr. Marcus claimed that each plaintiff should be required to answer "whether [she] had a passport when she arrived in the United States." He asserted that this question "did not address Plaintiff's immigration status," and thus did not run
On July 8, 2005, I held a telephone conference with the attorneys, and I stated as follows: I meant on May 12, and I mean now, that you cannot ask any question about plaintiffs' immigration status, including any question about passports. The only possible exception would concern the two plaintiffs who have not withdrawn their claim for forced labor. The Complaint's ¶ 79 alleges threats of serious bodily harm, but ¶¶ 2 (d), 39 and 44 allege threats of deportation; as long as those paragraphs are in the case, perhaps it is relevant whether those two plaintiffs were readily deportable.
Mr. Brenner promptly replied that Ms. Viejas-Flores would dismiss her forced labor claim, and that Ms. Sierra-Trejo would make a decision on this soon.
By joint letter dated July 28, the parties requested that I put my July 8 ruling in writing. I hereby do so.