Opinion
Case No. 2:04-cv-567-FtM-33DNF.
March 2, 2006
ORDER
This matter came before the Court pursuant to Plaintiffs' Motion for Entry of Default Judgment and Assessment of Damages against Defendants Maria R. Barajas and Samuel Barajas (Doc. # 35), which was filed on December 23, 2006. The Court invited the Plaintiffs to submit such a motion in its order of November 29, 2005, through which a default was entered against the Defendants for their failure to comply with discovery orders in this case. (Doc. # 34). A hearing was held before the Court on this matter on February 7, 2006. (Doc. # 42). Although provided with notice of this hearing, the Defendants did not appear.
Having reviewed the Plaintiffs' motion and supporting evidence, and being fully advised in the premises, the Court hereby enters its final judgment as follows:
1. Maria R. Barajas and Samuel Barajas jointly operate a farm labor contracting business in Arcadia, Florida. The Plaintiffs are among the Mexican nationals who were admitted as guestworkers to pick citrus fruit for the Barajases under the so-called H-2A provisions of the Immigration and Nationality Act, §§ 1101(a)(15)(H)(ii)(a) and 1188(a)(1). The Plaintiffs and the members of the class contend that the Defendants violated a number of the provisions of their job offers, or "clearance orders" during the 2000-01, 2001-02, 2002-03 and 2003-04 citrus harvests. Earlier, the Court certified a class consisting of all H-2A workers employed by the Defendants during those harvest seasons.
2. Before granting a default judgment, the Court must determine that it has jurisdiction over the subject matter of the dispute.Pitts v. Seneca Sports, Inc., 321 F.Supp.2d 1353, 1356 (S.D. Ga. 2004). While ordinarily contract claims are adjudicated in the state courts, absent the existence of an express federal cause of action, the Court may exercise jurisdiction over H-2A workers' claims because they turn on interpretation of terms dictated by federal statutes and regulations. Mitchell v. Osceola Farms Co., No. 0580825CIVCOHN, 2005 WL 3591983, at *2 (S.D. Fla. Dec. 29, 2005); Grable Sons Metal Products, Inc. v. Darue Engineering Manufacturing, 125 S.Ct. 2363, 2366-67 (2005). Federal question jurisdiction is appropriate because of the substantial federal interest in immigration matters and in seeing that businesses honor the obligations they assume in order to obtain governmental approval of their activities, as the Defendants did to obtain temporary labor certification for importation of H-2A workers. Norfolk Western Railway Co. v. Nemitz, 404 U.S. 37, 44-45 (1971). Because of the limited number of H-2A workers admitted each year, federal question jurisdiction over state law claims involving these guestworkers' contracts can be exercised "without disturbing any congressionally approved balance of federal and state judicial responsibilities."Grable, 125 S.Ct. at 2368.
3. Because the Court has entered a default against Defendants Maria R. Barajas and Samuel Barajas, the factual allegations of the Complaint are to be taken as true. C. Wright, A. Miller M. Kane, Federal Practice Procedure § 2688 (3d. Ed. 1998);Miller v. Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D. Fla. 1999). While liability is established because of a default, allegations relating to the amount of damages are not admitted by virtue of a default. Rather, the court determines the amount and character of damages to be awarded based on record evidence. Miller, 75 F.Supp.2d at 1346. In this case, the Plaintiffs have provided deposition testimony and other data to support their claims for damages.
4. At the outset, the Court notes that only partial relief can be crafted in this case because the Defendants have failed to produce their payroll records, despite court orders requiring them to do so. Accordingly, the relief granted extends only to those class members whose identities can be gleaned from other documents collected by the Plaintiffs from third parties.
5. The Court finds that Defendants Maria R. Barajas and Samuel Barajas failed to comply with the assurance included in their clearance orders that rent-free housing would be provided to the H-2A workers, an assurance required by 20 C.F.R. § 655.102(b)(1). (Complaint ¶ 29). Instead, the workers were charged $30 per week for this housing. (Deposition of Luis Avila-Gonzalez at 35-36, 60-61; Deposition of Isaias Ramirez-Resendiz at 15.) Based on the dates shown in the Barajases' clearance orders, the following rental amounts must be refunded to the class members:
Period of Length of Rent paid at employment period of rate of (from employment $30/week clearance orders)
Workers October 25, 38 weeks $1140 employed in 2000 — July the 2000-01 20, 2001 harvest Workers October 15, 37 weeks $1110 employed in 2001 — the 2001-02 June 30, 2002 harvest Workers November 23, 31 weeks $930 employed in 2002 — June the 2002-03 30, 2003 harvest Workers November 28, 31 weeks $930 employed in 2003 — June the 2003-04 30, 2004 harvest
6. The Court further finds that the class members did not earn the mandated adverse effect wage rate for their work because they incurred expenses primarily for the benefit of their employers which were never reimbursed. (Complaint ¶¶ 24, 26 and 27). A worker must be reimbursed for any costs incurred primarily for the employer's benefit which serve to reduce the employee's net earnings during the first week of work below the mandated wage rate. See Arriaga v. Florida-Pacific Farms, LLC, 305 F.3d 1228, 1236 (11th Cir. 2002). In this action, the applicable wage rate is the adverse effect wage rate; to the extent that the workers' net earnings in the first week of work fell below this rate because of the pre-employment expenditures discussed below, the Barajases were required to reimburse these amounts to the workers. See Wage and Hour Memorandum No. 99-03, February 11, 1999 ("In other words, if an employer is legally required to pay a [minimum wage] higher than the FLSA [minimum wage], then deductions are permitted only to the extent that they do not reduce the employee's pay to an effective hourly rate lower than the highest applicable required wage enforced by [the Wage-Hour Division].")
7. The record evidence reflects the following expenses primarily benefitting the Barajases were incurred by the class members and were not reimbursed:
• Recruitment fees. The workers were required to pay Samuel Barajas a $100 fee in order to be selected for the jobs. (Complaint ¶ 24; Deposition of Luis Avila-Gonzalez at 14-15; 51; Deposition of Isaias Ramirez-Resendiz at 7-8). Costs incidental to an employer's recruitment program primarily benefit the employer. Marshall v. Glassboro Serv. Assoc., Inc., 1979 WL 1989 (D.N.J. Oct. 19, 1979). In Arriaga, the Eleventh Circuit recognized that recruitment fees primarily benefit the employer but denied relief to the farmworker plaintiffs because it could not be demonstrated that the local recruiters were agents of the employer. 305 F.3d at 1244-46. In this case, there is no agency issue because Defendant Samuel Barajas himself collected the recruitment fees. (Deposition of Luis Avila-Gonzalez at 14-15; 51; Deposition of Isaias Ramirez-Resendiz at 7-8).
• Travel from home villages to Monterrey. The workers traveled at their own expense from their home villages to Monterrey, the site of the U.S. consular post that issued their H-2A visas, at a cost of approximately 400 Mexican pesos, or about $37. (Complaint ¶ 26; Deposition of Luis Avila-Gonzalez at 16; Deposition of Isaias Ramirez-Resendiz at 10). These expenses primarily benefitted the Barajases. Arriaga, 305 F.3d at 1237-1244, 1246-47.
• Passports. Each worker was required to purchase a Mexican passport at a cost of approximately 450 pesos, or about $41.70. After their applications were approved, the workers had the H-2A visas stamped in their passports. (Complaint ¶ 26; Deposition of Isaias Ramirez-Resendiz at 8). As indigent farmers in rural Mexico, the class members had no use for the passports other than as a prerequisite to obtaining permission to work with the Barajases. Accordingly, these costs may not be credited against the employer's obligation to pay the adverse effect wage rate.Arraga, 305 F.3d at 1244.
• Visa application fees. The class members paid a visa application fee of $100 through the Mexican bank, Banamex. (Complaint ¶ 26; Deposition of Luis Avila-Gonzalez at 19; Deposition of Isaias Ramirez-Resendiz at 9, 13). These expenses primarily benefitted the employers, the Barajases. Arriaga, 305 F.3d at 1244.
• Visa issuance fees. The class members paid an additional $100 for the issuance of the visa once the application was approved. (Complaint ¶ 26; Deposition of Luis Avila-Gonzalez at 17). The visa fees were primarily for the benefit of the Barajases. Arriaga, 305 F.3d at 1244.
• I-94 fee. At the U.S./Mexico border, each worker paid $6 for the issuance of a U.S. immigration arrival/departure record, Form I-94. (Complaint ¶ 26; Deposition of Luis Avila-Gonzalez at 21-22; Deposition of Isaias Ramirez-Resendiz at 13-14). These expenses were incurred primarily for the benefit of the employers, the Barajases. Arriaga, 305 F.3d at 1244.
8. Without the Defendants' payroll records, it is impossible to determine the workers' precise earnings during their initial week of work and the extent to which these earnings were reduced by the charges that primarily benefitted the employer. However, because the workers were guaranteed the adverse effect wage rate for their work, it is reasonable for purposes of these computations to assume that the workers were paid at the AEWR. By definition, any expenses that primarily benefitted the employer automatically reduced workers' wages below the AEWR on a dollar-for-dollar basis. Because the expenses discussed above could not be lawfully credited against the employers' wage obligations, the Barajases were required to reimburse each worker $384.70 in their initial week of work: $100 for the recruitment fee, $37 for travel expenses from the worker's home to Monterrey, $41.70 for passport purchase, $100 for the visa application fee through Banamex, $100 for the visa issuance fee and $6 for the issuance of form I-94 at the U.S./Mexico border. Wage and Hour Memorandum No. 99-03, February 11, 1999.
The AEWRs for Florida during the years in question were as follows: $7.25 (2000), $7.66 (2001), $7.69 (2002), $7.78 (2003) and $8.18 (2004). http://www.fwjustice.org/AEWRs97-2005.htm
9. Besides the expenses common to all class members, the named Plaintiffs incurred additional costs that primarily benefitted their employers and therefore should have been reimbursed. The Plaintiffs were charged $100 by Samuel Barajas for the cost of the attorney who assisted Barajas in preparing the H-2A application. (Deposition of Luis Avila-Gonzalez at 37, 44; Deposition of Isaias Ramirez-Resendiz at 21-22). They also were required by Samuel Barajas to hire a designated person in a restaurant in Monterrey to assist them in completing the visa application paperwork at a charge of about 30 pesos, or $2.78. (Deposition of Luis Avila-Gonzalez at 17-18; Deposition of Isaias Ramirez-Resendiz at 10-11.) These activities were part of the Barajases' recruitment process and primarily benefitted the employers. Marshall v. Glassboro Service Association, Inc., 1979 WL 1989 (D.N.J. 1979).
10. In addition to his bus fare from his home to Monterrey, Plaintiff Avila-Gonzalez incurred additional transportation costs for which he was never reimbursed. Plaintiff Avila-Gonzalez paid $100 to travel to Florida for the 2000-01 season and paid $110 for the same trip for the 2001-02 harvest, although in that season the Defendants reimbursed him $50. (Deposition of Luis Avila-Gonzalez at 23, 59, 63).
11. The Barajases were also required to provide outbound transportation for any workers who completed the harvest. 20 C.F.R. § 655.102(b)(5)(ii). Although the Plaintiffs each finished the harvest season, the Barajases failed to provide or pay for their return transportation to Mexico. (Deposition of Luis Avila-Gonzalez at 47-48, 63; Deposition of Isaias Ramirez-Resendiz at 20). These expenses totaled $157 for Avila-Gonzalez for the 2000-01 harvest and $150 at the end of the 2001-02 season. (Deposition of Luis Avila-Gonzalez at 48, 65). Ramirez-Resendiz spent $147 on his return fare to Mexico following the 2001-02 season. (Deposition of Isaias Ramirez-Resendiz at 20).
12. The Plaintiffs were also entitled to reimbursement for the cost of their meals while traveling to and from the Barajases' jobsite. 20 C.F.R. § 655.102(b)(5)(i) and (ii). The Defendants never reimbursed the Plaintiffs for these costs, which were approximately $50 per trip for Avila-Gonzalez and $80 per trip for Ramirez-Resendiz. (Deposition of Luis Avila-Gonzalez at 23, 59-60; Deposition of Isaias Ramirez-Resendiz at 14, 21).
13. The Plaintiffs also seek an award of attorney's fees under Fla. Stat. § 448.08, having prevailed in an action for wages, in this case unpaid moneys due at the adverse effect wage rate. The Plaintiffs shall file a separate motion for attorney's fees and this motion shall be referred to the magistrate judge for a report and recommendation.
14. Judgment is hereby entered in favor of the Plaintiffs and the members of the class they represent and against Maria R. Barajas and Samuel Barajas, jointly and severally, for a total of $136,747.84. This amount is divided among the Plaintiffs and the class members as follows:
For Plaintiff Luis Avila Gonzalez
Visa and recruitment fees, 2000-01 $384.70 harvest
Visa and recruitment fees, 2001-02 $384.70 harvest
Rent reimbursement, 2000-01 harvest $1140.00
Rent reimbursement, 2001-02 harvest $1110.00
Attorney charge $100.00
Assistance in completing visa $5.56 application (2 seasons)
Inbound transportation expenses $160.00
Outbound transportation expenses $307.00
Subsistence en route to and from Florida $200.00 (4 trips @ $50) ________ TOTAL $3791.96For Plaintiff Isaias Ramirez-Resendiz
Visa and recruitment fees, 2001-02 $384.70 harvest
Rent reimbursement, 2001-02 harvest $1110.00 Attorney charge $100.00
Assistance in completing visa $2.78 application
Inbound transportation expenses $160.00 Outbound transportation expenses $147.00
Subsistence en route to and from Florida $160.00 (2 trips @ $80) TOTAL $2064.48For members of the class
Visa and Rent TOTAL Seasons recruit fees AWARD CLASS MEMBER worked ment
Jose Santos 2003-04 $384.70 $930.00 $1314.70 Aguilar
Reyes Aguilar- 2001-02 $384.70 $1100.00 $1484.70 Guevara
Luis Alberto 2003-04 $384.70 $930.00 $1314.70
Ramon Alejandro- 2001-02 $384.70 $1100.00 $1484.70 Tejeda
Esteban Antolin 2003-04 $384.70 $930.00 $1314.70
Luis Balderas 2001-02 $384.70 $1100.00 $1484.70
Maricela Barragan 2003-04 $384.70 $930.00 $1314.70
Edmundo Chavez 2003-04 $384.70 $930.00 $1314.70
Jesus Chavez 2003-04 $384.70 $930.00 $1314.70
Roberto Chavez 2003-04 $384.70 $930.00 $1314.70
Estevan Cruz 2003-04 $384.70 $930.00 $1314.70
Francisco Cruz 2003-04 $384.70 $930.00 $1314.70
Jose de Jesus 2001-02 $384.70 $1100.00 $1484.70 Espinosa Heriberto Espinoza 2003-04 $384.70 $930.00 $1314.70
Dany E. Estrada 2003-04 $384.70 $930.00 $1314.70
Armando Fuentes 2003-04 $384.70 $930.00 $1314.70
Julio Fuentes-Dias 2001-02 $384.70 $1100.00 $1484.70
Bernardo Galicia 2001-02 $384.70 $1100.00 $1484.70
Vicente Galicia 2001-02 $384.70 $1100.00 $1484.70
Adalberto Garcia 2003-04 $384.70 $930.00 $1314.70
Camerino Garcia 2003-04 $384.70 $930.00 $1314.70
Cesar Garcia 2001-02 $384.70 $1100.00 $1484.70
Dolores Garcia 2003-04 $384.70 $930.00 $1314.70
Gomecindo Garcia 2003-04 $384.70 $930.00 $1314.70
Isidoro Garcia 2003-04 $384.70 $930.00 $1314.70
Jaime Garcia 2003-04 $384.70 $930.00 $1314.70
Hector Goddy 2001-02 $384.70 $1100.00 $1484.70
Adrian Gonzalez 2003-04 $384.70 $930.00 $1314.70
Agustin Gonzalez 2003-04 $384.70 $930.00 $1314.70
Daniel Gonzalez 2003-04 $384.70 $930.00 $1314.70
Nadia Gonzalez 2003-04 $384.70 $930.00 $1314.70
Angel Guerrero 2003-04 $384.70 $930.00 $1314.70
Efren Guerrero 2003-04 $384.70 $930.00 $1314.70
Ricardo Guerrero 2003-04 $384.70 $930.00 $1314.70
Vicente Guerrero 2003-04 $384.70 $930.00 $1314.70
Donaciano Guillen 2003-04 $384.70 $930.00 $1314.70
Javier Guillen 2001-02 $384.70 $1100.00 $1484.70
Jesus Hernandez 2003-04 $384.70 $930.00 $1314.70
Jose L. Hernandez 2003-04 $384.70 $930.00 $1314.70
Leon Hernandez 2003-04 $384.70 $930.00 $1314.70 Rafael Hernandez 2001-02 $384.70 $1100.00 $1484.70
Alcidez Jimenez- 2001-02 $384.70 $1100.00 $1484.70 Mendez
Juan Landaverde 2003-04 $384.70 $930.00 $1314.70 2001-02
Salome Landaverde 2003-04 $769.40 $2030.00 $2799.00
Ezequiel Lopez- 2001-02 $384.70 $1100.00 $1484.70 Garcia
Elizabeth Lucatero 2003-04 $384.70 $930.00 $1314.70
Delfina Lugo 2003-04 $384.70 $930.00 $1314.70
Refugio Martinez 2001-02 $384.70 $1100.00 $1484.70
Roberto Martinez 2003-04 $384.70 $930.00 $1314.70
Tomas Martinez- 2001-02 $384.70 $1100.00 $1484.70 Ramirez
Eleazar Mejia 2003-04 $384.70 $930.00 $1314.70
Fermin Mejia 2003-04 $384.70 $930.00 $1314.70
Janeth Mejia 2003-04 $384.70 $930.00 $1314.70
Joaquin Mejia 2003-04 $384.70 $930.00 $1314.70
Salvador Mejia 2003-04 $384.70 $930.00 $1314.70
Timoteo Montero 2001-02 $384.70 $1100.00 $1484.70
Serafin Montoya- 2001-02 $384.70 $1100.00 $1484.70 Avila
Antonio Emilio 2001-02 $384.70 $1100.00 $1484.70
Morales-Hernandez Ignacio Morales- 2001-02 $384.70 $1100.00 $1484.70 Torres
Pedro Munoz- 2001-02 $384.70 $1100.00 $1484.70 Martinez
Alfonso Nieto 2003-04 $384.70 $930.00 $1314.70
Raul Olguin 2001-02 $384.70 $1100.00 $1484.70 Benito Enrique 2001-02 $384.70 $1100.00 $1484.70 Pastrana-Mendoza
Eugenio Perez- 2001-02 $384.70 $1100.00 $1484.70 Garcia
Ciro M.L. Pina 2001-02 $384.70 $1100.00 $1484.70
Adan Pintor-De La 2001-02 $384.70 $1100.00 $1484.70 Cruz
Cristobal Ponce- 2001-02 $384.70 $1100.00 $1484.70
Martinez Leonardo 2003-04 $384.70 $930.00 $1314.70 Rodriguez- Rodriguez
Alfonso Ramirez 2003-04 $384.70 $930.00 $1314.70
Ignacio Ramirez 2003-04 $384.70 $930.00 $1314.70
Pedro Ramirez 2003-04 $384.70 $930.00 $1314.70
Salvador Ramirez 2003-04 $384.70 $930.00 $1314.70
Francisco Recendis 2001-02 $384.70 $1100.00 $1484.70
Misael Redon- 2001-02 $384.70 $1100.00 $1484.70 Jimenez
Tonino Rendon- 2001-02 $384.70 $1100.00 $1484.70 Jimenez
Feliciano 2001-02 $384.70 $1100.00 $1484.70 Rodriguez
Rafael Rodriguez- 2001-02 $384.70 $1100.00 $1484.70 Rodriguez
Jose T. Rosaleo 2003-04 $384.70 $930.00 $1314.70
Jose Alvaro Luis 2001-02 $384.70 $1100.00 $1484.70 Rubio-Yanez
Juan Antonio 2001-02 $384.70 $1100.00 $1484.70 Salas-Mendiola
Marina L. Salcedo 2003-04 $384.70 $930.00 $1314.70
Juan Saldana 2001-02 $384.70 $1100.00 $1484.70
Juanito Saldana 2003-04 $384.70 $930.00 $1314.70 Antolin San Juan 2001-02 $384.70 $1100.00 $1484.70
Alberto Sanchez 2003-04 $384.70 $930.00 $1314.70
Guadalupe Sanchez 2001-02 $384.70 $1100.00 $1484.70
Raymundo Silva 2001-02 $384.70 $1100.00 $1484.70
Genaro Tavares 2001-02 $384.70 $1100.00 $1484.70
Carlos Trejo 2003-04 $384.70 $930.00 $1314.70
Daniel Vaquera- 2001-02 $384.70 $1100.00 $1484.70 Rojas
Jose Luis Vega- 2001-02 $384.70 $1100.00 $1484.70 Hernandez
Raul Zamora 2001-02 $384.70 $1100.00 $1484.70
Victoriano Zuniga- 2001-02 $384.70 $1100.00 $1484.70 Ramirez
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Plaintiffs' Motion for Entry of Default Judgment and Assessment of Damages against Defendants Maria R. Barajas and Samuel Barajas (Doc. # 35) is GRANTED as provided above.
(2) The Clerk is directed to enter Judgment against Defendants in the amount of $136,747.84 as provided above.
DONE and ORDERED.