The opinion of the court was delivered by: SWEET
In this action plaintiffs allege that in 1976 defendants G & G Produce Dealers, Inc. ("G & G Produce") and Stanley Gurda ("Gurda") engaged the services of Modesto Ramirez ("Ramirez") as a farm labor contractor without first determining that he possessed a valid certificate of registration from the United States Secretary of Labor. If true, the alleged acts constitute a violation of § 4(c) of the Farm Labor Contractor Registration Act, as amended in 1974 ("the Act"), 7 U.S.C. Ch. 52 § 2043(c). Plaintiffs bring this action as aggrieved persons seeking liquidated damages as provided in 7 U.S.C. § 2050a(a) and (b), upon which the court's jurisdiction rests.
The present motion is made by plaintiffs pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, for partial summary judgment on the second cause of action stated in their first amended complaint.
Plaintiffs have offered deposition transcripts, answers to interrogatories, affidavits, and memoranda in support of their motion. They have filed a request for admission pursuant to Rule 36(a) of the Federal Rules of Civil Procedure, and have set forth a statement of material facts as required by Rule 9(g) of the Rules of the Southern District of New York. Defendants, though benefitted with ample time and adequate notice, have failed to reply to plaintiffs' Fed.R.Civ.P. 36(a) request or to the plaintiffs' statement pursuant to S.D.N.Y.R. 9(g). Defendants have neither asked for an extension of time, nor objected to the form of plaintiffs' statement or request.
In general, properly stated requests under Fed.R.Civ.P. 36(a) are to be deemed admitted in the absence of a formal response by the opposing party. See Williams v. Krieger, 61 F.R.D. 142 (S.D.N.Y.1973) (concerning the entry of summary judgment on the basis of an unanswered Fed.R.Civ.P. 36(a) request). Similarly, in the absence of a reply to the moving party's Rule 9(g) statement, the facts set forth are to be taken as admitted. S.D.N.Y.R. 9(g). Notwithstanding, Gurda's affidavit will, in fairness, be taken into consideration in the court's determination of this motion. See Fed.R.Civ.P. 56(e). Plaintiffs' Rule 36(a) request and Rule 9(g) statement will be taken as admitted only insofar as they are left uncontroverted by the Gurda affidavit.
The standard to be used in determining whether to grant a motion for summary judgment has been clarified by the Court of Appeals in S. E. C. v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978). In its review, this court cannot try issues of fact; it can only determine whether there are issues to be tried. Id. at 33; See also American Mfrs. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967). Any doubts the court may have must be resolved in favor of the party opposing the motion. S. E. C. v. Research Automation Corp., supra at 33.
Of course, the materiality of factual issues in this case is to be determined in light of the provisions of the Act, 7 U.S.C. §§ 2041-2053. Section 2043(c) provides as follows:
No person shall engage the services of any farm labor contractor to supply farm laborers unless he first determines that the farm labor contractor possesses a certificate from the Secretary that is in full force and effect at the time he contracts with the farm labor contractor. Id.
This language gives rise to threshold questions: Although G & G Produce and Gurda are "persons" as defined in 7 U.S.C. § 2042(a), and plaintiffs are "migrant workers" within the meaning of 7 U.S.C. § 2042(g), the same simple conclusion cannot be reached regarding the status of Ramirez as a "farm labor contractor." Section 2042(b) states that:
The term "farm labor contractor" means any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers (excluding members of his immediate family) for agricultural employment. 7 U.S.C. § 2042(b).
Ramirez has stated at deposition that during the first half of 1976 he spoke with certain of the plaintiffs, discussing the terms and conditions of employment at G & G Produce. He has acknowledged that he thereafter transported a number of workers, including at least plaintiffs Raul Torres, Jose Flores, Elsa Lopez, and Rosalinda Hernandez, from Laredo, Texas to the Pine Island, New York premises of G & G Produce. In its answer to plaintiffs' interrogatory no. 54, G & G Produce lists the names of its employees from whom wage deductions were taken for transportation costs from Laredo to Pine Island in 1976. All of the plaintiffs, including those transported by Ramirez, appear on the list. The foregoing facts concerning Ramirez' discussions with plaintiffs in Laredo, his transportation of certain of the plaintiffs in his truck, and their eventual employment by G & G Produce upon arrival at Pine Island, are fully in accord with affidavits submitted by plaintiffs.
Though it is a conclusion well supported by the evidence that Ramirez' discussions with certain of the plaintiffs in Texas constitute recruitment and solicitation within the meaning of 7 U.S.C. § 2042(b),
the court will resolve all doubts in favor of the defendant. In so doing, the court nonetheless must note that Ramirez' activities as a farm labor contractor may be established through uncontroverted evidence showing that he engaged in one or more of the activities listed in § 2042(b). It is not necessary to find that he engaged in all, or several, of the listed services.
Thus, Ramirez' statements at deposition are sufficient to establish that he transported several of the plaintiffs and others from Texas to New York. Once there, the plaintiffs were employed by G & G Produce, and deductions were taken from their pay to cover the costs of their transportation. This, in short form, conclusively establishes that Ramirez acted as a farm labor contractor within the meaning of 7 U.S.C. § 2042(b), at a time when he was not registered as required by law.
A tandem reading of Section 2042(b), subsections (2) and (3) might lead to the conclusion that the term "farm labor contractor" is inapplicable to Ramirez if, during his full time or regular employment, he provided such services "on no more than an incidental basis." 7 U.S.C. § 2042(b)(3). Assuming, without deciding, that Ramirez' seasonal employment with defendants may be termed "regular" or "full time," it becomes necessary to determine whether his Section 2042(b) activities may be viewed as incidental to the remainder of his functions.
Though the Act does not clarify its use of the word "incidental," it is apparent that the exception provided in Section 2042(b)(3) is a narrow one; to read it expansively would substantially subvert the remedial purposes of the Act. The issue was treated as follows by the court in Usery v. Golden Gem Growers, Inc., 417 F. Supp. 857 (M.D.Fla.1976):
To be more than incidental, the activities listed in Section 2042(b) need not be the sole job duties performed by a person. It is sufficient . . . if under the circumstances the farm labor contractor activities performed are one of the major or principal functions of the individual's job. Id. at 862.
The importance of Ramirez' Section 2042(b) activities in relation to the totality of his functions can in no sense be deemed "incidental" under the above-mentioned standard. The defendants employed Ramirez as a farm labor contractor from 1973-1975, and sought unsuccessfully to register him again as such in 1976. Ramirez was personally involved with furnishing a substantial percentage, at the very least, of the total agricultural work force at G & G Produce in 1976.