The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
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
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not withdrawn their claim for forced labor.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.
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