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SOLER v. G & U

July 14, 1983

FRANCISCO SOLER, et al., Plaintiffs, against G & U, INC., CHARLES GRATZ, d/b/a CHARLES GRATZ FARM, Defendants; JANN S. FLING, et al., Plaintiffs, against PEAT GRO FARMS, INC., Defendant; PABLO LIVAS, et al., Plaintiffs, against BIERSTINE FARMS, INC., Defendant; GILBERTO GONZALEZ, et al., Plaintiffs, against CEDAR VALLEY GROWERS, INC., Defendant; FREDDY VALENTIN, et al., Plaintiffs, against RAYMUND MYRUSKI, Defendant; CECELIO ENCARNACION, et al., Plaintiffs, against W.K.W. FARMS, INC., Defendant.


The opinion of the court was delivered by: TENNEY

TENNEY, J.

The plaintiffs are approximately 100 migrant farmworkers. They brought this suit in 1978 pursuant to the Fair Labor Standards Act of 1938, as amended ("the Act" or "FLSA"), 29 U.S.C. § 201 et seq. (1976), to recover allegedly unfair wage deductions made by the defendant farm owners for housing provided to them on the defendants' farms in Orange County, New York. Concurrent to the filing of this action the plaintiffs petitioned the Department of Labor for a determination of the fair rental value of the defendants' housing. *fn1"

 Previously, this Court has (1) granted plaintiffs' request for consolidation of their claims and for a stay pending a decision by the Labor Department, Soler v. G & U, Inc., 477 F. Supp. 102 (S.D.N.Y. 1979); (2) temporarily lifted the stay, granted leave to file an amended complaint adding new parties and claims, and authorized plaintiffs' counsel, Farmworker Legal Services of New York, Inc., to circulate, mail, and post Notice of Pendency of Action and Consent to Sue forms so that potential plaintiffs could join the action, Soler v. G & U, Inc., 86 F.R.D. 524 (S.D.N.Y. 1980); and (3) denied plaintiffs' motion for a preliminary injunction that sought to enjoin defendant G & U, Inc. and its representative from coercing any of the plaintiffs to withdraw from the suit. See Opinion filed January 15, 1982, 78 Civ. 6252 (CHT), aff'd, 690 F.2d 301 (1982).

 By this current motion the plaintiffs seek an order that will: (1) lift the stay for the purposes of this motion; (2) direct defendants to produce within 20 days a list of names and addresses of all employees from the 1980-82 growing seasons who had deductions for rent made from their wages; and (3) authorize plaintiffs' counsel to circulate a proposed Notice of Pendency of Action and Consent to Sue forms by mail and posting in contemplation of amendment or supplementation of the 1978-79 claims pursuant to Federal Rule of Civil Procedure ("Rule") 15. The defendants, claiming that circumstances have changed substantially since the Court granted the plaintiffs' first request to notify potential plaintiffs, are opposed to the motion. Moreover, defendants argue that if the Court decides to grant the plaintiffs' motion, the sample Notice of Pendency of Action and Consent to Sue forms submitted by the plaintiffs are materially misleading and should be modified before the Court approves their use. Finally, the defendants claim that the plaintiffs' motion is frivolous, and, consequently, they seek attorneys' fees. *fn2"

 For the reasons stated below the Court denies both the plaintiffs' motion and the defendants' request for attorneys' fees.

 Circulation of Notice of Pendency of

 Action and Consent to Sue Forms

 Section 16(b) of the Act states that "[a]n action to recover . . . liabilty . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (Supp. II 1978). *fn3" Unlike class actions brought pursuant to Rule 23 "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. Unless a FLSA class member affirmatively "opts-in" by filing a consent to sue form with the court, he may not be bound by or benefit from a judgment entered in an action under this section. Partlow v. Jewish Orphans' Home of Southern Cal. Inc., 645 F.2d 757, 759 (9th Cir. 1981); Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); Riojas v. Seal Produce, Inc., 82 F.R.D. 613, 616-17 (S.D. Tex. 1979). See generally 3B J. Moore & J. Kennedy, Moore's Federal Practice P23.02[2.-10] (2d ed. 1982). Furthermore, unlike Rule 23, the Act contains no specific provision for notifying potential plaintiffs about the pendency of an action.

 In Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2d Cir. 1978), the Second Circuit addressed the issue whether a district court has the power to order that notice be given to other potential members of a plaintiff class under the opt-in provision of the FLSA. The court held that "it makes more sense, in light of the "opt-in" provision of § 16(b) of the Act . . . to read the statute as permitting, rather than prohibiting, notice in an appropriate case." Id. at 336 (citations omitted). The court reasoned that this interpretation of the statute comported with the broad remedial purposes of the Act, as well as with the long-standing judicial policy of avoiding a multiplicity of suits. Id.

 As noted above, this Court, after granting plaintiffs' motion to add claims for the 1979 growing season to those arising out of the 1978 season, authorized the circulation of a Notice of Pendency of Action and Consent to Sue forms to other similarly situated employees. Soler v. G & U, Inc., supra, 86 F.R.D. at 530. This Court found that, in view of the principles enunciated in Braunstein, and the fact that many potential plaintiffs were probably unaware of the lawsuit and would be time-barred if they did not proceed shortly, the case was an appropriate one for permitting notice. Id. at 528-30.

 By this motion the Farmworker Legal Services seeks permission to notify individuals employed at the defendants' farms during the 1980-82 growing seasons of their right to join the current litigation. It contends that unless these individuals are given notice of the pendency of this suit and an opportunity to join in this action, workers with claims arising out of the 1980 growing season will be time-barred by the running of the three year statute of limitations for willful violations. *fn4" Plaintiffs' Brief in Support of Motion to Lift Stay, Permit Limited Discovery, and to Circulate Notice of Pendency of Action and Consent Forms in Contemplation of Amendment of Complaint and Addition of New Parties, at 4. Farmworker Legal Services further notes that many of the migrant farmworkers are illiterate or non-English speaking individuals who move in and out of the the migrant work force in response to the availability of employment in non-agricultural areas. Id. at 4-5. Consequently, plaintiffs' counsel claims that many individuals employed during the 1980-82 growing seasons are probably ignorant of their possible right to a refund. Id.

 The defendants present two principal arguments in opposition to the plaintiffs' motion. First, they contend that since the plaintiffs have not moved to amend their complaint to include causes of action for the 1980-82 growing seasons and since plaintiffs have filed Consent to Sue forms against only three of the six defendants for this period, the Court has no authority to grant the plaintiffs' motion. Defendants' Memorandum of Law at 3-4. Second the defendants argue that, even if the Court determines that it has the authority to permit the circulation of the Notice of Pendency of Action and Consent to Sue forms, the circumstances are not appropriate for the Court to exercise its discretion in this matter. Id. at 6-10. The defendants claim that the circumstances have changed substantially since the Court approved the previous Notice of Pendency of Action for the 1978-79 growing seasons, and that the workers from the 1980-82 growing seasons are well aware of their opportunity to become party-plaintiffs in this case. Id. at 11. According to the defendants, allowing plaintiffs' counsel to distribute notice to these individuals, when they have expressed no interest in pursuing a court action, would violate the time-honored judicial prohibition against stirring-up litigation. Id. at 4. Alternately, defendants argue that if the Court does not decide to permit the circulation of a notice, the notice should be sent only to employees of the defendants who have at least one Consent to Sue form filed against them for the 1980-82 growing season. *fn5" Id.

 In response, plaintiffs' counsel argues that it should not be precluded from notifying potential plaintiffs from the 1980-81 growing seasons because of a mere technicality, to wit -- the failure to move for an amendment to the complaint to include parties and claims for these periods.Plaintiffs' Reply Brief at 3. Plaintiffs further contend that courts routinely approve Rule 15 motions adding parties and claims and that in light of the remedial nature of the Act the Court should approve the request for notice. Id. at 5-7.

 Clearly, a district court has the discretionary power to authorize the circulation of notice to potential class members in a representative action brought pursuant to § 16(b) of the FLSA. Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th cir. 1982); Braunstein v. Eastern Photographic Laboratories, Inc., supra; Soler v. G & U, Inc., supra, 87 F.R.D. 524; Roijas v. Seal Produce, Inc., supra.See also Partlow v. Jewish Orphans' Home of Southern Cal. Inc., supra, 645 F.2d at 759 ("[T]he trial court has an obligation to those not before it to ensure that they are apprised of proceedings that may finally affect them; . . .") (quoting In re Gypsum Antitrust Cases, 565 F.2d 1123, 1127 (9th Cir. 1977). But see Kinney Shoe Corp. v. Vorhes, supra. Hence, the question ...


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