UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ESCOLASTICO DE LEON-GRANADOS, ISAIAS PROFETA DE LEON-GRANADOS and ARMENIO PABLO-CALMO on behalf of themselves and all others similarly situated, .
Plaintiffs,
v.
ELLER AND SONS TREES, INC., and JERRY ELLER
Defendants.

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) Case No. 1:05-cv-1473

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) COMPLAINT - CLASS

)

ACTION

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PLAINTIFFS' FIRSt AMENDED COMPLAINT PRELIMINARY STATEMENT
1. This action is brought by migrant agricultural workers who were admitted to the United States to work under the H-2B temporary foreign worker visa program. The Plaintiffs have been employed in the forestry operations of the Defendants at various times during the period from June 1999 through the filing of
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this Complaint. The Plaintiffs seek redress on behalf of themselves and all others

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similarly situated for the Defendants' violations of their rights under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1871 (1999) ("AWPA") and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1998) ("FLSA").
2. This action is brought on behalf of a class of over 1500 predominantly Guatemalan, Mexican and Honduran migrant workers who planted trees and performed other forestry-related activities for the Defendants. The Plaintiffs and other class members are indigent migrant workers who the Defendants brought to the United States on temporary, H-2B work visas. The Plaintiffs and other class members left their homes and families and spent considerable money and effort to . come to the United States to perform arduous jobs, which the Defendants have certified that American workers were not willing to do.
3. Almost all of the Plaintiffs and other class members are non-English speakers who had little, if any, understanding of their legal rights while working in the United States as H-2B forestry workers - particularly their legal rights to receive a prevailing hourly wage and overtime pay. The Defendants took full advantage of the Plaintiffs' and other class members' indigence, inability to speak or understand English, and their lack of understanding of the laws of the United States to grossly underpay them.
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4. The Plaintiffs and many other class members were required by

Defendants' agents to leave the deeds to their homes or land in Guatemala with the

d~fendants' agents in order to obtain employment with the Defendants. These

Plaintiffs and other class members were thus particularly vulnerable to coercion and

exploitation by the Defendants, as they believed they might lose their property if they

failed to comply with the directives of the Defendants.

5. The Plaintiffs seek an award of unpaid wages, an award of money

damages, declaratory relief, and injunctive relief to make them whole for damages

they suffered due to the Defendants' violations of law and to ensure that they and

other H-2B workers will not be subjected by the Defendants to such illegal conduct in

the future.

JURISDICTION

6. Jurisdiction is conferred upon this court by 28 U.S.C. § 1331, this case

arising under the laws of the United States, 28 U.S.C. § 1337, this action arising

under Acts of Congress regulating commerce, 29 U.S.C. § 1854(a), this action arising

under the AWPA, and 29 U.S.C. § 216(b), this action arising under the FLSA.

7. The Court is empowered to issue a declaratory judgment pursuant to 28

U.S.C. §§ 2201 and 2202.

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VENUE

8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c)
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and 29 U.S.C. § 1854(a). PARTIES
9. At all times relevant to this action, Plaintiffs and the other class members were H-2B temporary foreign workers within the meaning of 8 U.S.C. § 1101(a)(15)(H)(ii)(b).
10. At all times relevant to this action, the Plaintiffs and the other class members were migrant agricultural workers within the meaning of 29 U.S.C. § 1802(8)(A), in that they were employed in agricultural employment of a seasonal nature and were required to be absent overnight from their permanent places of residence.
11. Substantial agricultural work was performed by the Plaintiffs and other class members for the Defendants in this state and within this District.
12. At all times relevant to this action, the Plaintiffs and the other class members were engaged in agricultural employment for the Defendants within the meaning of29 U.S.C. § 1802(3).
13. At all times relevant to this action the Plaintiffs and the other class members were employees of the Defendants within the meaning of29 U.S.C. § 203(e)(1).
14. At all times relevant to this action, the Plaintiffs and the other class members were employed by the Defendants within the meaning of29 U.S.C. §203(g).
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15. At all times relevant to this action, the Plaintiffs and the other class

members were employed by the Defendants in an enterprise engaged in commerce or

the production of goods for commerce.

16. Defendant Eller and Sons Trees, Inc. is a Georgia corporation which

conducts business in this District.

17. At all times relev.ant to this action Defendant Eller and Sons Trees, Inc.

was an agricultural employer within the meaning of 29 U.S.C. § 1802(2).

18. At all times relevant to this action, Defendant Eller and Sons Trees, Inc.

employed the Plaintiffs and the other class members within the meaning of29 U.S.C.

§ 1802(5) and 29 U.S.C. § 203(g).

19. Defendant Jerry Eller is an individual resident of Montana who conducted

significant business in this District. Defendant Jerry Eller had significant contacts

with the state of Georgia and this District such that jurisdiction and venue are proper

in this Court.

20. At all times relevant to this action, Defendant Jerry Eller employed the

Plaintiffs and the other class members within the meaning of29 U.S.C. § 1802(5) and

29 U.S.C. § 203(g).

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STATEMENT OF FACTS 21. The Defendants operate a tree-planting service, in which they bid on and negotiate contracts to plant trees on land owned by other individuals and companies. To fill the manpower requirements of their contracts, the Defendants sought importation of foreign nationals to perform forestry work on a seasonal or temporary basis, in accordance with the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(b). 22. The Plaintiffs and the other members of the class were admitted to the United States to be employed as members of labor crews organized by the Defendants. Each of the Plaintiffs and the other class members was issued a temporary visa, commonly referred to as an "H-2B visa," as authorized by 8 U.S.C. § 11 01(a)(15)(H)(ii)(b), its attendant regulations, 8 C.F.R. § 214.2(h)(6), 20 C.F.R. § 655.3, and administrative letters and/or guidance. The Plaintiffs and the other class members were admitted to the United States and were employed by the Defendants. 23. The Plaintiffs and other class members spent considerable sums of money to process their H-2B work visas and travel from their home villages to the United States. These costs were incurred by the Plaintiffs and other class members for the primary benefit of their Defendant employers. 24. In addition, as a condition of being hired, the Plaintiffs and many other class members were required to leave collateral, in the form of the deed to their land,
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with the Defendants' agents in Guatemala. The Plaintiffs and other class members were required to leave this deed with Defendants' agents so that the Defendants could be assured that the workers would remain under the control of and in the employ of the Defendants. The requirement that Plaintiffs leav~ their deeds had an extremely coercive effect upon the Plaintiffs and other class members. The Defendants have not returned these documents to Plaintiff Armenio Pablo-Calmo, nor to many other class members.
25. The Defendants' actions as described in paragraph 24 constituted forced labor and/or trafficking into servitude as defined by the Trafficking Victims Protection Reauthorization Act, contravening the policies and purposes of that Act. Those actions were also violative of the AWPA working arrangement between the parties, which incorporates applicable law.
26. As a condition of obtaining H-2B visas for the Plaintiffs and the other class members, the Defendants certified to the United States Department of Labor that, inter alia, the wages paid the Plaintiffs and other class members would equal or exceed the applicable prevailing wage, that the jobs offered would be full-time jobs of 40 hours per week, and that the job would not contravene Federal, State, or local law, including applicable requirements of the H-2B program, as set out in Department of Labor regulations and administrative interpretations.
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27. When the Defendants provided information to the Plaintiffs regarding work hours and manner of compensation, the information provided was false and misleading.
28. The Defendants did not issue accurate and 'complete records regarding the employment of the Plaintiffs and other class members. The records the Defendants kept of the Plaintiffs' work were inadequate, inaccurate, false and misleading.
29. The Plaintiffs and other class members performed arduous tree planting and associated forestry work for the Defendants in Georgia and other states. They regularly worked far in excess of 40 hours in a given workweek.
30. The Defendants failed to pay the Plaintiffs and the other members of the class the minimum wage for all the work they performed.
31. The Defendants failed to pay the Plaintiffs and the other members of the class the proper prevailing wage for all the work they performed.
32. The Defendants failed to pay the Plaintiffs and the other members of the class overtime wages for all work they performed in excess of forty (40) hours in a given workweek.
CLASS ACTION ALLEGATIONS 33. All claims set forth in Count I are brought by the Plaintiffs on behalf of themselves and all other similarly situated persons pursuant to Rule 23(b)(3) of the
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Federal Rules of Civil Procedure. 34. The named Plaintiffs seek to represent a class consisting of all those
individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the Defendants' forestry operations from June 1999 until the present.
35. Plaintiff Armenio Pablo-Calmo seeks to represent a subclass consisting
i .
of all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the Defendants' forestry operations from January 1, 2003 until the present, who pledged collateral with the Defendants' agents in order to obtain employment with the Defendants.
36. The precise number of individuals in the class is known only to the Defendants. The class is believed to include well over 2000 individuals. The class is comprised principally of indigent migrant farmworkers who maintain their residences in locations throughout Guatemala, Mexico and Honduras. The class members are not fluent in the English language. Indeed, many of the class members speak indigenous Mayan languages as their primary language, and speak Spanish as a second language, with varying degrees of proficiency. The relatively small size of the individual claims, the geographical dispersion of the class, and the indigency of the class members makes the maintenance of separate actions by each class member
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economically infeasible. Joinder of all class members is impracticable. 37. There are questions of fact and law common to the class. These common
questions include whether the Defendants failed to pay the named Plaintiffs and other class members prevailing and overtime wages promptly when due, as required by law and their employment contracts; whether Defendants failed to maintain complete and accurate records regarding the Plaintiffs' and the class members' work; whether the Defendants failed to provide the Plaintiffs and the class members with complete and accurate wage statements; whether the failure of the Defendants to pay the Plaintiffs and the class members the prevailing wage and overtime pay as required by the H-2B temporary foreign labor program violated the AWPA's wage payment and working arrangement provisions; whether the Defendants' failure to pay the class members for at least 40 hours of work each week violated the AWPA's wage payment and working arrangement provisions; whether the Defendants' requirements that the Plaintiffs and some of the class members leave the deed to their land violated th~ AWPA; and whether the Defendants' failure to maintain complete and accurate records regarding the work of the Plaintiffs and the class members, and Defendants' failure to provide the named Plaintiffs and the class members with complete and accurate wage statements, were violations of the AWPA.
38. The claims of the named Plaintiffs are typical of the
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class, and these typical, common claims predominate over any questions affecting only individual class members. The named Plaintiffs have the same interests as do the other members of the class and will vigorously prosecute these interests on behalf of the class.
39. Counsel for the Plaintiffs have handled numerous AWPA and FLSA actions in the federal courts. They are prepared to advance litigation costs necessary to vigorously litigate this action.
40. A class action under Rule 23(b)(3) is superior to other available methods of adjudicating this controversy because, inter alia:
• The common issues of law and fact, as well as the relatively small size of the individual class members' claims, substantially diminish the interest of members of the class in individually controlling the prosecution of separate actions;
• . Many members of the class are unaware of their rights to prosecute these claims and lack the means or resources to secure legal assistance;
• There has been no litigation already commenced against the Defendants by the members of the class to determine the questions presented;
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• It is desirable that the claims be heard in this forum since the Defendants have significant contacts with this District; and
• A class action can be managed without undue difficulty since the Defendants have regularly committed the violations complained of herein, and are required to maintain detailed records concerning each member of the class.
COUNT I
MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT (CLASS ACTION)
41. This count sets forth a claim by the Plaintiffs and the other members of the class for money damages, declaratory relief and injunctive relief, with respect to the Defendants' violations of the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA").
42. The Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 39 above.
43. The certifications described in paragraph 26 above constituted a working - - - - .. -~---.-
arrangement between the Defendants and the Plaintiffs and other class members
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within the meaning of the AWPA, 29 U.S.C. § 1822(c), and its attendant regulations, 29 C.F.R. § 500.72.
44. The Defendants failed to pay the Plaintiffs and the other members of the class the proper prevailing wage for all the work they performed, and failed to pay the Plaintiffs and the other members of the class overtime wages for all compensable time they were employed in excess of forty (40) hours in a given workweek.
45. The violation of the AWPA as set out in paragraph 44 resulted in part from the Defendants' failure to supplement the piece-rate earnings of the Plaintiffs and the other class members so as to raise their individual pay period wages to a rate equal to or exceeding the prevailing and overtime wage.
46. The violation of the AWPA as set out in paragraph 44 resulted in part from the Defendants' maintenance of incomplete, false and inaccurate records of the hours worked by Plaintiffs and other class members.
47. The violation of the AWPA as set out in paragraph 44, 45 and 46 resulted in part from the Defendants' failure to reimburse the Plaintiffs and the other members of the class for expenses they incurred which were primarily for the benefit of the Defendants, as well as the Defendants' unlawful withholdings and deductions from the wages of the Plaintiffs and'the other class members.
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48. The Defendants, who were obligated to offer full time employment to the Plaintiffs and other class members, consistently failed to pay workers for at least 40 hours of work each week.
49. By their actions as described in paragraphs 44, 45, 46, 47,and 48, the Defendants violated without justification their working arrangement with the Plaintiffs and the other members of the class, thereby violating the AWPA, 29 U.S.C. § 1822(c), and its attendant regulations, 29 C.F.R. § 500.72.
50. By their actions as described in paragraphs 44 45, 46, 47 and 48 the
./
Defendants failed to pay the Plaintiffs and other members of the class their wages owed promptly when due, thereby violating the AWPA, 29 U.S.C. § 1822(a), and its attendant regulations, 29 C.F.R. § 500.81.
51. The Defendants knowingly provided false and misleading information to the Plaintiffs and other class members, regarding the terms and conditions of their employment, in violation of the AWPA 29 U.S.C. § 1821(f); 29 C.F.R. § 500.77.
52. The Defendants failed to make, keep, and preserve accurate and complete records regarding the Plaintiffs' and the other class members' employment, in violation of the AWPA, 29 U.S.C. § 1821(d)(1), and its attendant regulations, 29 C.F.R. § 500.80(a).
53. The Defendants failed to provide the Plaintiffs and the
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other class members complete and accurate itemized written statements for each pay

period containing the required information, in violation of the AWPA, 29 U.S.C. §

1821(d)(2), and its attendant regulations, 29 C.F.R. § 500.80(d).

54. By their actions as described in paragraphs 23, 24 and 25 above, the

Defendants violated without justification their working arrangement with the Plaintiffs

and the other members of the class, thereby violating the AWPA, 29 U.S.C. § 1822(c),

and its attendant regulations, 29 C.F.R. § 500.72.

55. The requirement that Plaintiffs and other class members sign over collateral

in order to obtain employment with the Defendants was an agreement that purported

to waive or modify the Plaintiffs' rights under the AWPA, in violation of29 U.S.C. §

1856.

56. The violations of the AWPAand its attendant regulations as set forth in

this count were the natural consequences of the conscious and deliberate actions of the

Defendants and were intentional within the meaning of the AWPA, 29 U.S.C. §

1854( c)(1).

57. As a result of the Defendants' violations of the AWPA

and its attendant regulations as set forth in this count, the Plaintiffs and the other

members of the class have suffered damages.

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COUNT II FAIR LABOR STANDARDS ACT
(COLLECTIVE ACTION) 58. This count sets forth a claim for declaratory relief and damages for the Defendants' violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"). This count is brought by the Plaintiffs on behalf of themselves and other current or former H-2B temporary foreign workers employed by the Defendants who are similarly situated. 59. The Plaintiffs reallege and incorporate by reference the allegations set forth' in paragraphs 1 through 32 above. 60. Pursuant to 29 U.S.C. § 216(b), Plaintiffs Escolastico De Leon-Granados, Isaias Profeta De' Leon-Granados and Armenio Pablo-Calmo have consented in writing to be party plaintiffs in this FLSA action. Their written consents are attached to this complaint. 61. The Defendants violated 29 U.S.C. § 206(a) by failing to pay each of the Plaintiffs and others similarly situated the applicable minimum wage for every compensable hour of labor they performed. 62. The Defendants violated 29 U.S.C. § 207(a) by failing to pay the Plaintiffs and others similarly situated at an hourly rate equal to one and a half times their regular rate of pay for all compensable time they were employed in
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excess of forty (40) hours in each workweek.

63. The violations of the FLSA set out in paragraphs 59 and 60 resulted in part

from the Defendants' failure to supplement the piece-rate earnings of the Plaintiffs

and others similarly situated so as to raise their individual wages each workweek to a

rate equal to or exceeding the minimum and overtime wage.

64. The violations of the FLSA set out in paragraphs 59 and 60 resulted, in

part, from the Defendants' maintenance of incomplete, false and inaccurate records of

the hours worked by Plaintiffs and others similarly situated.

65. The violations of the FLSA set out in paragraphs 59 and 60 resulted, in

part, from the Defendants' failure to reimburse the Plaintiffs and others similarly

situated for expenses they incurred which were primarily for the benefit of the

Defendants.

66. The violations of the FLSA set out in paragraphs 59 and 60 resulted, in

part, from the Defendants' unlawful withholdings and deductions from the wages of

the Plaintiffs and others similarly situated.

67. The Defendants' failures to pay the Plaintiffs and

others similarly situated their federally mandated minimum wages, and their federally

mandated overtime wages for all time they were employed in excess of forty (40)

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hours in a workweek, were willful violations of the FLSA within the meaning of 29

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U.S.C. § 255(a). 68. As a consequence of the Defendants' violation of the
FLSA, the Plaintiffs and others similarly situated are entitled to recover their unpaid minimum and overtime wages, plus an additional equal amount in liquidated damages, costs of suit, and reasonable attorneys' fees pursuant to 29 U.S.C. § 216(b).
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court will enter an order: 1. Certifying this case as a class action in accordance with Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to the claims set forth in Count I; 2. With respect to the claims set forth in Count II, permitting this case to proceed as a collective action; 3. Declaring that the Defendants intentionally violated the Migrant and Seasonal Agricultural Worker Protection Act and its attendant regulations, as set forth in Count I; 4. Declaring that the Defendants willfully violated the minimum wage and overtime provisions of the Fair Labor Standards Act, as set forth in Count II; 5. Granting judgment in favor of the Plaintiffs and the other class members and against the Defendants, jointly and severally, on these Plaintiffs' and other class members' claims under the AWPA as set forth in Count I and awarding each of the Plaintiffs and the other class members actual or statutory damages for each violation
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of the AWPA, whichever is greater; 6. Declaring the agreement that Plaintiffs and other class members leave
collateral in order to obtain employment with the Defendants void under the AWPA and issuing a remedial injunction requiring the return of that collateral;
7. Permanently enjoining the Defendants from further violations of the AWPA and its attendant regulations;
8. Granting judgment in favor of the Plaintiffs and all others similarly situated and against the Defendants, jointly and severally, on their claims under the Fair Labor Standards Act as set forth in Count II and awarding each of these Plaintiffs and all. other similarly situated individuals who opt-in to this action his unpaid minimum and overtime wages and an equal amount in liquidated damages;
9. Awarding the Plaintiffs the costs of this action; 10. Awarding the Plaintiffs reasonable attorneys' fees wIth respect to their Fair Labor Standards Act claims; and 11. Granting such further relief as is just and equitable.
Respectfully submitted this 31 st day of January, 2006
sf Brian Spears, Esq. Brian Spears
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State Bar of Georgia No. 670112 1126 Ponce de Leon Avenue Atlanta, Georgia 30306 404-872-7086 e-mail: bspears@mindspring.com
Mary C. Bauer Pro Hac Vice Virginia Bar Number 31388 e-mail: mbauer@splcenter.org Kelley M. Bruner Pro Hac Vice Alabama Bar Number ASB-8115-K74B e-mail: kbruner@splcenter.org Andrew Turner Pro Hac Vice Virginia Bar Number 48853 e-mail: aturner@splcenter.org Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 334-956-8200 334-956-8481 (fax)
James M. Knoepp Pro Hac Vice . Virginia Bar Number 46327 e-mail: jim@justice4all.org Virginia Justice Center for Farm and Immigrant Workers 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 703-778-3450 703-778-3454 (fax)
Tim A. Freilich Pro Hac Vice
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Virginia Bar Number 44077 e-mail: tim@justice4all.org Alex R. Gulotta Virginia Bar Number 37097 Pro Hac Vice Motion Pending Legal Aid Justice Center 1000 Preston Avenue, Suite A Charlottesville, VA 22903 434-977-0553 434-977-0558 (fax) e-mail: alex@justice4all.org Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this date electronically filed the foregoing Plaintiffs' First Amended Complaint with the Clerk of Court using the CMlECF system, which will automatically send e-mail notification to the following attorneys for the Defendants:
J. Larry Stine, Esq. Ga. Bar No. 682555 Elizabeth K. Dorminey, Esq. Ga. Bar No. 225935 Wimberly, Lawson, Steckel & Schneider, P.C. 3400 Peachtree Rd. N.B., Suite 400 Atlanta, GA 30326 (404)-365-0900 ils@wimlaw.com bdorminy@bellsouth.net
This 7th day of February, 2006.
Sf BRIAN SPEARS
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 Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ESCOLASTICO DE LEON-GRANADOS, RENE VILLATORO-DE LEON, MARGARITO RECINOS-VILLATORO, ISAIAS PROFETA DE LEON-GRANDADOS and ARMENIO PABLO-CALMO on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ELLER AND SONS TREES, INC. and JERRY ELLER
Defendants.

* * * * * * * * * * * CASE NO.: 1:05-CV-1473 * * JURY DEMAND * * *

ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

COME NOW Defendants Eller and Sons Trees, Inc. and Jerry Eller

(“Defendants”), by and through undersigned counsel, and files this Answer to

Plaintiffs’ First Amended Complaint in this matter as follows:

RESPONSE TO PLAINTIFFS’ ALLEGATIONS

Defendants specifically answer the paragraphs of Plaintiff’s Amended Complaint as

follows:

1.

Defendants admit that this purports to be a putative class action for alleged

Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 2 of 15
violation of the Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C. 1801 et seq. (“AWPA”), and the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (“FLSA”), but deny that the claims have any merit whatsoever. All other allegations are denied.
2. Defendants deny that this action is brought on behalf of a class of over 1500 workers. Defendants admit that Plaintiffs entered the United States under an H-2B visa. Defendants are without knowledge as to the remaining allegations and therefore deny such allegations.
3. Defendants deny paragraph 3 of the Amended Complaint.
4. Defendants deny paragraph 4 of the Amended Complaint.
5. Defendants admit that Plaintiffs are seeking relief but deny that Plaintiffs are entitled to any such relief.
6. Defendants admit paragraph 6 of the Amended Complaint.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 3 of 15
7. Defendants admit that federal courts have the right to issue declaratory judgment; however, Defendants deny that Plaintiffs have met the requirements to obtain a declaratory judgment.
8. Defendants admit paragraph 8 of the Amended Complaint.
9. Defendants admit that Plaintiffs were H-2B temporary foreign workers and deny the remaining allegations of paragraph 9 of the Amended Complaint.
10. Defendants deny paragraph 10 of the Amended Complaint.
11. Defendants deny paragraph 11 of the Amended Complaint.
12. Defendants deny paragraph 12 of the Amended Complaint.
13. Defendants deny paragraph 13 of the Amended Complaint.
14. Defendants deny paragraph 14 of the Amended Complaint.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 4 of 15
15. Defendants deny paragraph 15 of the Amended Complaint.
16. Defendants admit paragraph 16 of the Amended Complaint.
17. Defendants deny paragraph 17 of the Amended Complaint.
18. Defendants deny paragraph 18 of the Amended Complaint.
19. Defendants admit paragraph 19 of the Amended Complaint.
20. Defendants deny paragraph 20 of the Amended Complaint.
21. Defendants deny paragraph 21 of the Amended Complaint.
22. Defendants deny paragraph 22 of the Amended Complaint except they admit that Plaintiffs were issued H-2B visas.
23. Defendants deny paragraph 23 of the Amended Complaint.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 5 of 15
24. Defendants deny paragraph 24 of the Amended Complaint.
25. Defendants deny paragraph 25 of the Amended Complaint.
26. Defendants deny paragraph 26 of the Amended Complaint.
27. Defendants deny paragraph 27 of the Amended Complaint.
28. Defendants deny paragraph 28 of the Amended Complaint.
29. Defendants deny paragraph 29 of the Amended Complaint.
30. Defendants deny paragraph 30 of the Amended Complaint.
31. Defendants deny paragraph 31 of the Amended Complaint.
32. Defendants deny paragraph 32 of the Amended Complaint.
33.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 6 of 15
Defendants admit that Plaintiffs purported to bring this action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure but deny that they are entitled to do so.
34. Defendants admit that Plaintiffs seek to represent a class but deny that they are entitled to do so.
35. Defendants admit that Plaintiff Armenio Pablo-Calmo seeks to represent a class but deny that he is entitled to do so.
36. Defendants are without sufficient knowledge to admit or deny the allegations of paragraph 36 and therefore deny the allegations.
37. Defendants deny paragraph 37 of the Amended Complaint.
38. Defendants deny paragraph 38 of the Amended Complaint.
39. Defendants are without sufficient knowledge to admit or deny the allegations of paragraph 39 and therefore deny the allegations.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 7 of 15
40. Defendants deny paragraph 40 of the Amended Complaint.
41. Defendants admit that Plaintiffs seek the specified relief under AWPA but Defendants deny that Plaintiffs are entitled to such relief.
42. Defendants reallege and incorporate by reference paragraphs 1-41 of the Answer to Plaintiffs First Amended Complaint.
43. Defendants deny paragraph 43 of the Amended Complaint.
44. Defendants deny paragraph 44 of the Amended Complaint.
45. Defendants deny paragraph 45 of the Amended Complaint.
46. Defendants deny paragraph 46 of the Amended Complaint.
47. Defendants deny paragraph 47 of the Amended Complaint.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 8 of 15
48. Defendants deny paragraph 48 of the Amended Complaint.
49. Defendants deny paragraph 49 of the Amended Complaint.
50. Defendants deny paragraph 50 of the Amended Complaint.
51. Defendants deny paragraph 51 of the Amended Complaint.
52. Defendants deny paragraph 52 of the Amended Complaint.
53. Defendants deny paragraph 53 of the Amended Complaint.
54. Defendants deny paragraph 54 of the Amended Complaint.
55. Defendants deny paragraph 55 of the Amended Complaint.
56. Defendants deny paragraph 56 of the Amended Complaint.
57.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 9 of 15
Defendants deny paragraph 57 of the Amended Complaint. 58.
Defendants admit that Plaintiffs purported to seek relief pursuant to the Fair Labor Standards Act but assert that they are not entitled to any relief.
59. Defendants reallege and incorporate paragraphs 1 - 58 of the Answer.
60. Defendants admit paragraph 60 of the Amended Complaint.
61. Defendants deny paragraph 61 of the Amended Complaint.
62. Defendants deny paragraph 62 of the Amended Complaint.
63. Defendants deny paragraph 63 of the Amended Complaint.
64. Defendants deny paragraph 64 of the Amended Complaint.
65. Defendants deny paragraph 65 of the Amended Complaint.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 10 of 15
66. Defendants deny paragraph 66 of the Amended Complaint.
67. Defendants deny paragraph 67 of the Amended Complaint.
68. Defendants deny paragraph 68 of the Amended Complaint.
69. To the extent a response is required to the Prayer for Relief, it is denied.
GENERAL DENIAL All allegations not specifically admitted are hereby denied.
FIRST DEFENSE Plaintiffs have failed to state a claim upon which relief can be granted.
SECOND DEFENSE Some of the claims sought by Plaintiffs are barred by the statute of limitations.
THIRD DEFENSE Class certification is inappropriate according to Fed. R. Civ. P. 23.
FOURTH DEFENSE Plaintiffs were agricultural workers exempt from the overtime provisions of the FLSA.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 11 of 15
FIFTH DEFENSE Defendants at all times believed in good faith that they were in full compliance with the law, and therefore their alleged violations of the FLSA are not willful as that term is used in 29 U.S.C. §255(a).
SIXTH DEFENSE The workers employed by Defendants were not “agricultural” workers as that term is defined in the AWPA.
SEVENTH DEFENSE Some or all of Plaintiffs are exempt from overtime pursuant to 13(b)(1) of the FLSA.
EIGHTH DEFENSE Defendants’ acts or omissions were taken in good faith and with reasonable grounds that such acts or omissions were in compliance with the FLSA.
NINTH DEFENSE The maintenance of a class action under AWPA is inconsistent with a collective action under the FLSA.
TENTH DEFENSE Those expenses incurred by Plaintiffs prior to their employment is not recoverable under AWPA or FLSA.
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Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 12 of 15

ELEVENTH DEFENSE Some of the purported hours worked by Plaintiffs are specifically excluded from compensable time by the Portal to Portal Act, 29 U.S.C. §§251 et al.
TWELFTH DEFENSE Defendants’ actions were taken in good faith in conformity with and in reliance on written administrative regulation, order, ruling, approval and/or interpretation of the U.S. Department of Labor and/or with the administrative practice or enforcement policy of the U.S. Department of Labor with respect to the class of employers to which Defendants belong.
JURY DEMAND Defendants hereby demand a jury on all issues triable to a jury. WHEREFORE, Defendants request that this case be dismissed with prejudice and that this Court award them attorney fees, costs and such other relief as this Court deems just. Respectfully submitted this 29th day of March, 2006.

Wimberly, Lawson, Steckel, Weatherby & Schneider, P.C. 3400 Peachtree Rd. NE Ste. 400 Atlanta, Georgia 30326 (404) 365-0900 jls@wimlaw.com

s/ J. Larry Stine J. Larry Stine, Esq. Ga. Bar No. 682555 Elizabeth K. Dorminey, Esq. Ga. Bar No. 225935 Attorneys for Defendants
-12-

Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 13 of 15 bdorminy@bellsouth.net
-13-

Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 14 of 15

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ESCOLASTICO DE LEON-GRANADOS, RENE VILLATORO-DE LEON, MARGARITO RECINOS-VILLATORO, ISAIAS PROFETA DE LEON-GRANDADOS and ARMENIO PABLO-CALMO on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ELLER AND SONS TREES, INC. and JERRY ELLER
Defendants.

* * * * * * * * * * * CASE NO.: 1 05-CV-1473 * * JURY DEMAND * * *

CERTIFICATE OF SERVICE

I hereby certify that I have this date electronically filed the foregoing Answer

to Plaintiffs’ First Amended Complaint with the Clerk of Court using the CM/ECF

system which will automatically send email notification of such filing to the following

attorneys of record:

Brian Spears 1126 Ponce De Leon Avenue Atlanta, Georgia 30306 (404)872-7086 email: bspears@mindspring.com

-14-

Case 1:05-cv-01473-CC Document 84 Filed 03/29/2006 Page 15 of 15
Mary C. Bauer Kelley M. Bruner Andrew Turner Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 emails: mbauer@splcenter.org
kbruner@splcenter.org aturner@splcenter.org
This 29th day of March, 2006.

Wimberly, Lawson, Steckel, Weathersby & Schneider, P.C. 3400 Peachtree Rd. NE Ste. 400 Atlanta, Georgia 30326 (404) 365-0900 jls@wimlaw.com bdorminy@bellsouth.net

s/J. Larry Stine J. Larry Stine, Esq. Ga. Bar No. 682555 Elizabeth K. Dorminey, Esq. Ga. Bar No. 225935 Attorneys for Defendants

-15-

 
 452 F.Supp.2d 1282 (2006)
ESCOLASTICO DE LEON-GRANADOS, Isaias Profeta De Leon-Granados and Armenio Pablo-Calmo on behalf of themselves and all others similarly situated, Plaintiffs, v. ELLER AND SONS TREES, INC. and Jerry Eller, Defendants.
No. 1:05 CV 1473 CC.
United States District Court, N.D. Georgia, Atlanta Division.
September 28, 2006.
1283 *1283 Alex R. Gulotta, Charlottesville, VA, Andrew H. Turner, Kelley Bruner, Mary C. Bauer, Montgomery, AL, George Brian Spears, Law Office of Brian Spears, Atlanta, GA, James M. Knoepp, Tim A. Freilich, Falls Church, VA, for Plaintiffs.
James Larry Stine, Wimberly Lawson Steckel Nelson & Schneider, Atlanta, GA, for Defendants.

DISCOVERY ORDER

COOPER, District Judge.

This matter is before the Court on Plaintiffs' Motion to Compel Production of Documents [Doc. No. 37], Plaintiffs' Motion to Compel Responses to Interrogatories [Doc. No. 38], and Plaintiffs' Motion to Compel Compliance with Subpoena Duces Tecum [Doc. No. 95]. The Court addresses each of these motions in turn below but first addresses a primary issue in dispute between the parties, the statute of limitations applicable to Plaintiffs' claim brought pursuant to the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA").

I. APPLICABLE STATUTE OF LIMTATIONS

The AWPA does not contain a limitations period within which an action must be brought. Accordingly, the Court must "borrow" the statute of limitations applicable to analogous claims under the state law of the forum state.

1284

*1284 The Eleventh Circuit has designed a two-step analysis to be applied when a federal court seeks to "borrow" a state statute of limitations in actions brought under a federal civil rights statute which does not contain its own statute of limitations. In choosing which state statute of limitations to apply to claims under the federal civil rights statutes, we must engage in a two-step analysis: `first, what under federal law is the "essential nature" of the claim, and second, what statute of limitations would the state courts hold applicable to this type or class of claim.'

Solomon v. Hardison 746 F.2d 699 (11th Cir.1984) (citations omitted). Here, the parties agree that the essential nature of Plaintiffs' AWPA claim is breach of their employment contract with Defendant Eller & Sons Trees, Inc. ("Defendant"). The parties disagree, however, on the statute of limitations that Georgia courts would hold applicable to this type or class of claim. Plaintiffs assert that O.C.G.A. § 9-3-24's six-year statute of limitations applies, which governs claims on written contracts in Georgia. By contrast, Defendant asserts that O.C.G.A. § 9-3-22's two-year statute of limitations applies, which is the statute of limitations for wage claims and governs claims arising under statutes.

Having considered the respective positions of both Plaintiffs and Defendant and having read and considered the law cited by both parties, the Court finds that the applicable statute of limitations in this case is the six-year statute of limitations provided in O.C.G.A. § 9-3-24. A review of Plaintiffs' First Amended Complaint reveals that most of Plaintiffs' AWPA claims seek redress for breaches of their "working arrangement,'! a written expression of which is required by 29 U.S.C. § 1822 and 18 U.S.C. § 1831. Plaintiffs explain that their written "working arrangement" contract is embodied in the U.S. Department of Labor's Form ETA 750 "Job Clearance Orders" and

in Defendant's disclosure contract, which set forth Plaintiffs' terms and conditions of employment, and which Defendant required each worker to sign before starting work. Georgia law is clear that "where the contract forming the basis of the action is in writing, the provisions of O.C.G.A. § 9-3-24 are applicable." Muscogee County Bd. of Educ. v. Boisvert, 196 Ga.App. 537, 539, 396 S.E.2d 303 (1990) (emphasis in original). Defendant has not cited a single case in which the two-year statute of limitations provided in O.C.G.A. § 9-3-22 was applied to a contractual claim for wages. Moreover, selecting the six-year limitations period over the two-year limitations period comports with "our paramount duty . . . to effectuate the federal policies embodied in the AWPA statutory scheme." Barajas v. Bermudez, 43 F.3d 1251, 1260 (9th Cir. 1994) (choosing longer of two potentially applicable statutes of limitations in effort to effectuate policy goals of AWPA); see also Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir.1993) ("AWPA is a remedial statute and should be construed broadly to effect its humanitarian purpose."); Sanchez v. Morrison, 667 F.Supp. 536, 538 (W.D.Mich.1987) (noting the broad remedial purposes of the AWPA in deciding to apply Michigan's sixyear statute of limitations for breach of contract rather than the three-year period for injury to property or person). Accordingly, the Court concludes that the statute of limitations properly applied to Plaintiffs' AWPA claims is the six-year period provided in O.C.G.A. § 9-3-24 governing simple contracts in writing.
II. PLAINTIFFS' MOTION TO COPEL PRODUCTION OF DOCMENTS
1285 Plaintiffs move the Court for an order compelling Defendant to produce for inspection *1285 and copying those documents and things sought through Plaintiffs' First Request for Production of Documents to Defendant Eller & Sons Trees, Inc. Specifically, Plaintiffs moves the Court to compel Defendant to respond to requests for production # 1-9, 11-13, 15, 19, and 20. Having reviewed the production requests at issue, the corresponding objections by Defendant, the respective positions of the parties, and the law relied on by both Plaintiffs and Defendant, the Court hereby orders the, following:
(1) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 1 to the extent that the Court orders Defendant to produce payroll records, wage statements, ledgers, "score sheets," and check stubs for all H-2B workers, including the Plaintiffs, it employed in any capacity between June 6, 1999, and the present.
(2) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 2 to the extent that the Court orders Defendant to produce the visas and passports of all H-2B workers it employed between June 6, 1999, and the present.
(3) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 3.
(4) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 4.
(5) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for ` Production # 5.
(6) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 6.
(7) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 7.
(8) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 8.
(9) The Court DENIES Plaintiffs' Motion to Compel with respect to Request for Production # 9, as it is undisputed that Defendant did not pay the visa costs for its H-2B workers.
(11) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 11.
(12) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 12.
(13) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 13.
(15) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 15 to the extent that Defendant is required to produce all responsive documents for the time period of twelve (12) years preceding the commencement of this action. Notwithstanding the foregoing, the Court DIRECTS the parties to confer about limiting the scope of the documents requested.

(19) The Court GRANTS Plaintiffs' Motion to Compel with respect to Request for Production # 19.
(20) The Court GRANTS Plaintiffs' Mo, tion to Compel with respect to Request for Production # 20.
In sum, Plaintiffs' Motion to Compel Production of Documents is GRANTED in part and DENIED in part. All documents ordered to be produced shall be produced within forty-five (45) days of the date of this Order.
III. PLAINTIFFS' MOTION TO COPEL RESPONSES TO INTEROGATORIES
1286 Plaintiffs next move the Court for an order compelling Defendant to provide full *1286 answers to Plaintiff Escolastico De Leon-Granados' First Set of Interrogatories to Defendant Eller & Sons, Inc. Specifically, Plaintiffs moves the Court to compel Defendant to respond to interrogatories # 1-6 and 8. Having reviewed the interrogatories at issue, the corresponding objections by Defendant, the respective positions of the parties, and the law relied on by both Plaintiffs and Defendant, the Court hereby orders the following:
(1) The Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 1.
(2) The Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 2.
(3) In light of the fact that Plaintiffs are not direct competitors of Defendant, the Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 3. Notwithstanding the foregoing, the Court DIRECTS the parties to confer regarding a suitable confidentiality agreement/protective order.
(4) The Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 4.
(5) The Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 5.
(6) The Court DENIES Plaintiffs' Motion to Compel with respect to. Interrogatory # 6, as the interrogatory was poorly worded and did not clearly request information about investigations.
(8) The Court GRANTS Plaintiffs' Motion to Compel with respect to Interrogatory # 8.
In sum, Plaintiffs' Motion to Compel Responses to Interrogatories is GRANED in part and DENIED in part. Defendant shall fully respond to the interrogatories as to which the Court granted the Motion to Compel within forty-five (45) days from the date of this Order.
IV. PLAINTIFFS' MOTION TO COPEL COMPLIANCE WITH SUPOENA DUCES TECUM
Insofar as Plaintiffs' class certification motion has been resolved, the Court GRANTS Plaintiffs' Motion to Compel Compliance with Subpoena Duces Tecum. The Court directs Defendant to provide the requested documents to Plaintiffs within forty-five (45) days of the date of this Order.
V. CONCLUSION
Based on the foregoing, the Court GRANTS in part and DENIES in part Plaintiffs' Motion to Compel Production of Documents [Doc. No. 37], GRANTS in part and DENIES in part Plaintiffs' Motion to Compel Responses to Interrogatories [Doc. No. 38], and GRANTS Plaintiffs' Motion to Compel Compliance with Subpoena Duces Tecum [Doc. No. 95].
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 Case 1:05-cv-01473-CC Document 355 Filed 06/19/09 Page 1 of 1

Of Counsel to: Smith, White, Sharma & Halpern 1126 Ponce de Leon Ave., NE Atlanta, Georgia 30306-4517

BRIAN SPEARS
ATTORNEY AT LAW
June 19, 2009

TEL: (404) 872-7086 FAX: (404) 892-1128

Patsy Springs, Deputy Clerk to the Hon. Clarence Cooper Judge, United States District Court Northern District of Georgia P.O. Box 6226 Rome, GA 30162

Re:

Escolastico De Leon-Granados, et al. v. Eller, et al.

Civil Action File No. 1:05-CV-1473-CC

Dear Ms. Springs:

This is written to request that no proceedings be scheduled in the above-captioned matter for the following periods: July 31-August 3, 2009; August 6-August 7, 2009; August 28September 2, 2009; September 18-September 21, 2009; October 2-October 6, 2009; October 15-October 20 and October 23, 2009; November 4-November 9, 2009 and November 20-November 23, 2009. I will be out of the state for professional development and family vacation during these periods of time.

Please contact me in the event that you have any questions. Thank you in advance for your kind attention to this matter.

Sincerely,

BS:tsw cc: all counsel, via electronic filing

/s/ Brian Spears

 
 Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 1 of 14

FILED IN CLEWS OFFICE
U .S.D.C . Atlanta

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA SEP 2 9 200

ATLANTA DIVISION

J

~~

BV.

,

c~--

~6 M lJt}/ ('i~Efk

ESCOLASTICO DE LEON-GRANADOS, )

ISAIAS PROFETA DE LEON-GRANAD4S, ) and ARMENIO PABLO-CALMO )

on behalf of themselves and all }

others similarly situated, } }

Plaintiffs, } Case 1 :05-cv-1473-CC

v.

)

ELLER & SONS TREES, INC . and ) JERRY ELLER )

Defendants .

)

ORDER This case is presently before the Court on Defendants' Motion for Interlocutory Appeal Under 28 U .S.C.A. § 1292(b) [Doc. No. 343] ; on Plaintiffs' Motion for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements [Doc . No. 208]; and on Defendants' cross-motion for summary judgment seeking a determination that their payroll information meets the requirements of 29 U .S .C . § 1821(d) (2) [Doc . Nos . 190 & 195] .

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 2 of 14
T. Background Plaintiffs Escolastico De Leon-Granados, Isaias Profeta De LeonGranados, and Armenio Pablo-Calmo filed this class action lawsuit against Defendants Ellen & Sons Trees, Inc . (hereinafter referred to as "Ellen and Sons" or "Ellen and Sons Trees") and Jerry Ellen . Ellen and Sons Trees is a business located in Franklin, Georgia, that provides reforestation (tree planting) and other forestry services such as brush clearing, boundary marking, and chemical spraying . Most of its employees are engaged in tree planting, predominantly in the southern United States during the months of December, January, and February . This is arduous work, and Ellen and Sons Trees cannot find enough employees in the United States to perform the work. As a result, most of the workers come from outside of the United States. The vast majority come from Guatemala, although some come from Mexico, Honduras, and Colombia . Ellen and Sons Trees obtains employees through the H-2B visa program, which allows the legal, temporary or seasonal employment of alien, nonimmigrant employees . Jerry Ellen is the president, sole corporate officer, and owner of Ellen and Sons Trees . The named Plaintiffs are three migrant farmworkers who were employed in Defendants' forestry operations at various times since June 1,
2

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 3 of 14
1999 . Plaintiffs contend that they were denied protections due them under the Fair Labor Standards Act, 29 U .S .C . §§ 201-19 ("FLSA"), and under the Migrant Seasonal Agricultural Worker Protection Act, 29 U .S.C. §§ 1801-71 (1999) ("AWPA"), during the various times they were employed by Eller and Sons Trees .
The Court certified the Plaintiffs' Count II FLSA claims as an opt-in collective action under 29 U .S .C. § 216 (b) on October 18, 2005 . [Doc . No . 43] . On September 28, 2006, the Court certified the Plaintiffs' Count I AWPA claims as a Rule 23(b)(3) class action . [Doc . No . 100] . The Eleventh Circuit Court of Appeals affirmed this Court's certification of the Plaintiffs' AWPA claims for Rule 23 class action treatment on August 31, 2007 . DeLeon-Granados v. Ellen & Sons Trees, Inc., 497 F.3d 1214 (11th Cir . 2007) .
On November 15, 2007, the parties filed cross motions for summary judgment on various issues, many of which the Court decided in its October 8, 2008 Order . De Leon-Granados v . Ellen & Sons Trees, Inc ., 581 F . Supp . 2d 1295 (N .D. Ga . 2008) . The Defendants have moved for certification of an interlocutory appeal of that Order granting and denying the parties' various motions for summary judgment . [Doc . No . 341] .
3

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 4 of 14
The parties' cross motions for partial summary judgment regarding Defendants' compliance with AWPA recordkeeping requirements could not be decided in the Court's omnibus summary judgment Order because Defendants' objections to the admission of the Plaintiffs' expert witness report had not been resolved . De Leon-Granados, 581 F. Supp. 2d at 132223 . Because no adequate showing of classwide recordkeeping violations was made without reference to the report of Plaintiffs' expert witness Jorge Rivero, the cross motions concerning Defendants' recordkeeping were denied without prejudice, pending an evidentiary hearing pursuant to Daubert v. Merell Dow Pharms ., 509 U.S . 579 (1993) . The Court scheduled a Daubert hearing [Doe . No. 338] but that hearing was cancelled when Defendants withdrew their objection to the admission of Plaintiffs' expert witness report. [Doc . No . 341 at 1] . By Order dated October 30, 2008 the Court renewed its consideration of Plaintiffs' Motion for Partial Summary Judgment Finding Violations of AWPA Recordkeeping and Defendants' cross-motion, considering the report of Plaintiffs' expert witness as a part of the record . [Doe. No. 341] .
11. Defendants' Motion for Certification of Interlocutory Appeal
Defendants move the Court to certify numerous aspects of its October S, 2008 summary judgment order for interlocutory appeal pursuant to 28
4

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 5 of 14
U.S.C . § 1292(b). [Doc . No . 343] . Specifically, Defendants ask that the Court certify for interlocutory appeal its holdings that the FLSA and the AWPA require reimbursement of the pre-employment travel, visa and passport expenses Plaintiffs bore ; and that the work hours information submitted on Defendants' ETA-750 application for guestworker visas was incorporated into the Plaintiffs' AWPA working arrangement as an enforceable guarantee . De Leon-Granados, 581 F. Supp. 2d at 1308-25 .
Interlocutory review is appropriate under § 1292(b) only where the district judge :
shall be of the opinion that such order involves a controlling question of law, as to which there is substantial ground for difference of opinion and that an immediate appeal from the order will materially advance the ultimate termination of the litigation . 28 U .S .C . § 1292(b) . All three conditions must be met for § 1292(b) certification to issue . McFarlin v. Conseco Servs., 381 F .3d 1251, 1259 (11th Cir . 2004) . Because the certification Defendants seek would not materially advance the ultimate termination of this litigation, Defendants' motion is due to be denied . Even if the Court of Appeals were to reverse the portions of the Order for which Defendants seek review, numerous significant aspects of this case would remain for trial . Interlocutory review petitions fail to satisfy § 1292(b)'s material advancement requirement where trial on significant
5

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 6 of 14
issues would be required regardless of the success or failure of the requested appeal . McFarlin, 381 F .3d at 1262 ("Resolution of one claim out of seven would do little if anything to `materially advance the ultimate termination of the litigation."').
In the alternative, Plaintiffs have suggested that this case may be ripe for entry of final judgment following a damages hearing concerning the claims on which summary judgment has been granted . If so, the Defendants will soon be afforded an appeal from a final judgment . In either event, an interlocutory appeal from the Court's partial summary judgment order will not materially advance the ultimate termination of this litigation . Defendants' motion is DENIED.
IIL Motions for Partial Summary Judgment Regarding AWPA Recordkeeping Requirements
As set forth above, Defendants have moved for partial summary judgment seeking a determination that their payroll information meets the AWPA's requirements as to 29 U .S .C . § 1821(d) . [Doc . Nos . 190 & 195] . Specifically, Defendants move for summary judgment as to the requirement that the employer provide to each employee an itemized pay stub each pay period reflecting information required by 29 U.S .C. § 1821(d)(1 ). Plaintiffs cross-move for partial summary judgment that Defendants failed to make, keep, and preserve accurate and complete records regarding Plaintiffs' and
6

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 7 of 14
other class members' employment, in violation of the AWPA and its attendant regulations . 29 U .S .C . § 1821(d) ( 1); 29 C.F .R. § 500 .80(a). [Doc. No. 208] . For the reasons stated below, the Court denies Defendants' motion and grants the Plaintiffs' motion for partial summary judgment .
AWPA Section 1821(d) imposes on agricultural employers and associations who employ migrant workers a reasonable standard of quality business and record keeping practices that requires them to :
(1) with respect to each such worker, make, keep and preserve records for three years of the following information :
(A) the basis on which wages are paid ; (B) the number of piecework units earned, if paid on a piece work basis ; (C) the number of hours worked ; (D) the total pay period earnings ; (E) the specific sums withheld and the purpose of each sum withheld; and (F) the net pay ; and (2) provide to each such worker for each pay period, an itemized written statement of the information required by paragraph (1) of this subsection . See 29 U.S.C. § 1821(d); see also 29 C.F .R. § 500 .80(d). The record keeping provisions "are core protections offered by the Act," and all violations are punishable "'to prevent minimum wage violations and other departures from
7

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 8 of 14
[the Act] [,]"' even if the offenses are "mere technical violations ." Sanchez v. Overmyer, 891 F. Supp . 1253, 126 (N .D. Ohio 1995) (citations omitted) ; see also Castillo v . Case Farms of Ohio, Inc ., 96 F . Supp . 2d 578, 632 (W .D . Tex. 1999) ("The AWPA was designed not only to punish, but also prevent such behavior."). A party violates § 1821(d) if the records kept and preserved and/or statements provided to the workers are not accurate . See, Sanchez v. Overmyer, 845 F. Supp . 1183, 1190 (N.D . Ohio 1993) (finding on summary judgment that employer had intentionally violated the AWPA by, inter alia, failing to keep accurate wage records and failing to provide plaintiffs with accurate wage statements) ; Sanchez, 891 F. Supp . at 1255 (summarizing the summary judgment ruling regarding the inaccuracy of the wage records and wage statements) .
In order for Plaintiffs to recover for violations of the AWPA, Defendants' violations must have been intentional . 29 U.S .C . § 1854{c}(1) . In the context of the AWPA, "intentional" does not require a specific intent to violate the law, but merely "conscious or deliberate" acts . Alvarez v. Joan of Arc, Inc ., 658 F.2d 1217, 1224 (7th Cir . 1981); Maldonado v. Lucca, 636 F . Supp . 621, 625 (D .N.J. 1986) . Plaintiffs thus must establish that Defendants deliberately engaged in the action that led to the violation . Wales v. Jack M. Berry, 192 F. Supp . 2d 1269, 12$8 (M.D. Fla. 1999).
8

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 9 of 14
In the case at bar, Defendants provide workers with a detailed pay document on an 8 1/2 by 11 sheet . The document shows (a) the basis on which wages are paid ; (b) the number of piecework units earned, if paid on a piecework basis ; (c) the number of hours worked ; (d) the total pay period earnings ; (e) the specific sums withheld and the purpose of each sum withheld ; and (f) the net pay received . Defendants contend that the pay documents demonstrate compliance with the AWPA .
Plaintiffs maintain, pointing to evidence in the record, that the payroll documents fail to show an accurate number of piecework units completed by Ellen and Sons workers in the corresponding workweek . Plaintiffs specifically point to the following errors in this regard : (1) although planting workers were normally paid by the tree planted, Ellen and Sons supervisors estimated the number of trees that were in the seedling bundles the workers planted, using educated guesses to derive piece rate totals ; (2) some supervisors awarded trees workers did not actually plant to those workers' piece rate accounts as a form of bonus ; (3) supervisors attributed trees a worker planted on one work day to that worker's piece rate tally for the following work day ; and (4) Ellen and Sons supervisors compensated the performance of non-planting work -- properly compensable on an hourly
9

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 10 of 14
basis -- not by recording hours worked but by adding fictitious trees, not actually planted, to the piece rate totals of workers performing this work.
Plaintiffs also maintain, pointing to evidence in the record, that the payroll documents fail to show an accurate number of hours worked by Defendants' workers . The specific errors with respect to work hours include the following : (1) Eller and Sons supervisors sometimes maintained no record at all of hours worked and merely noted piece rate production ; (2) Defendants failed to credit their tree planting workers for compensable preliminary work, by declining to record work Plaintiffs did loading trees prior to the planting day ; (3) Defendants recorded longer lunch breaks than the workers actually took ; (4) Defendants deducted from Plaintiffs' work hours time spent traveling from one work location to another, after the commencement of the work day ; and (5) Defendants falsely reported reduced work hours for slower planters, in order to evade wage payment obligations .
There is substantial evidence in the record demonstrating that the violations alleged by Plaintiffs occurred and that the violations were "intentional" within the meaning of the AWPA . Plaintiffs submit approximately 100 daily fieldwork records ("daily sheets") demonstrating these violations . Plaintiffs move for entry of partial summary judgment also
10

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 11 of 14
based, in part, on the deposition testimony of 15 of the 16 crew leaders who were deposed in the action . Some crew leaders or field supervisors did admit to making mistakes in record keeping, on occasion, and to taking actions that would run afoul of the AWPA's record keeping provisions, such as compensating workers who helped load seedlings for planting by adding trees, which those workers did not actually plant, to their piece rate records of trees planted on the daily sheets .
The Court has held, however, that without reference to the report of their expert witness, Jorge J . Rivero, a veteran wage and hour investigator who undertook a comprehensive review of Defendants' "daily sheet" field records for indicia of inaccuracy, the Plaintiffs can show only anecdotal violations, and not a classwide violation of the AWPA . De Leon-Granados, 581 F .Supp. 2d at 1323 . The Court denied the parties' cross motions without prejudice, pending a Daubert admissibility determination regarding Mr. Rivero's study . Id.
Defendants withdrew their Motion to Strike Jorge Rivero's expert testimony before the Court could hold a scheduled Daubert hearing, however, and the Court has renewed its consideration of the cross motions for summary judgment, considering Mr . Rivero's report as part of the record . [Doc. 341] .
11

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 12 of 14
Mr. Rivero served in the Wage and Hour Division of the U .S . Department of Labor for twenty-six years and investigated more than 1,000 allegations of violations of wage and hour law . [Doc. No. 194-3 at 1-2, 6, 27]. His investigations "involved the review of payroll documents for credibility, completeness and accuracy ." Id at 2 . Many of Mr . Rivero's investigations involved "agricultural operations that paid workers on a piece rate basis ." Id at 6 . Mr. Rivero served as an Assistant District Director in the Department of Labor's Wage and Hour Division, in which capacity he "reviewed the AWPA and FLSA findings of investigators under [his] supervision, trained new investigators and assisted investigators in the completion of difficult FLSA and AWPA investigations ." [Doc . 194-3 at 6]. Mr . Rivero was ultimately promoted to become the District Director of the Wage and Hour Division's South Florida District, reviewing all cases involving serious violations of the FLSA and the AWPA . Id.
Mr. Rivero reviewed a random sample of the 20,073 "daily sheet" records of field work Defendants made available in discovery [Doc . 296 at 3-6], identifying seven unusual patterns or practices which in his experience indicated inaccuracy, and calculating the percentages of the sample which bore each indicia of inaccuracy he detected . [Doc . 194-3 at 25-27] . The methodology Mr. Rivero "used to evaluate the Defendants wage and hour
12

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 13 of 14
records are consistent with those methods [he] used to investigate wage violations during [his] work at the U.S . Department of Labor ." Id at 2 .
Mr. Rivero based his assessment of Defendants' records on his review of daily sheets made by eighty-one different Eller and Sons Trees supervisors over the course of seven different forestry seasons . [Doc. No. 194-3 at 56-67] . In reviewing Defendants' payroll records, Mr . Rivero looked at a random sample of crews performing seedling planting operations which included both crews on which named Plaintiffs worked and those on which they did not. [Doc . No . 194-3 at 25] .
Mr. Rivero's study confirms that the anecdotal instances of work record inaccuracy the Plaintiffs proved through documentary exhibits, and the deposition testimony of 15 crew leaders were widespread across the class and the seven forestry seasons considered in this case . [Doc. No. 194-3 at 25-26] . Across Mr . Rivero's sample, 73% of crews exhibited a pattern of wide variation in hours recorded for crew members whom the record indicates worked together . Id. Seventy-five percent (75%) of crews on which named or opt-in Plaintiffs worked showed evidence of record inaccuracy in every workweek Mr . Rivero examined . Id.
Based upon careful consideration of Mr . Rivero's report, of Defendants' daily sheet work records, and of Defendants' crew leaders'
13

Case 1:05-cv-01473-CC Document 366 Filed 09/29/09 Page 14 of 14
deposition testimony, the Court concludes that there is no genuine issue of material fact and the Plaintiffs are entitled to summary judgment finding classwide violations of AWPA recordkeeping requirements . Defendants failed to make, keep and preserve complete and accurate records of the Plaintiffs' work hours and piece rate production as a normal part of their business practices . Defendants' violation of 29 U .S .C. § 1821(d) was a conscious or deliberate act "intentional" within the meaning of the AWPA 29 U.S .C . § 1854(c)(1). Alvarez, 658 F .2d at 1224 .
The Plaintiffs have carried their burden and there is insufficient record evidence favoring Eller and Sons to support a jury verdict that Defendants did keep the complete and accurate records required by the AWPA . Plaintiffs' Motion for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements [Doc . No . 208 is GRANTED . The portion of Defendants' Motion for Partial Summary Judgment seeking a determination that Defendants complied with 28 U .S .C . Sub/Sec. 1821 (d)(2) [Doc. Nos. 190 & 195] is DENIED.
SO ORDERED, this Cli day of , 2009 .
%/ Clarence Cooper Senior United States Distr ic Judge
14

 
 Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ESCOLASTICO DE LEON-

:

GRANADOS, ISAIS PROFETA

:

DE LEON-GRANADOS, and

:

ARMENIO PABLO-CALMO

:

on behalf of themselves and all

:

others similarly situated,

:

:

Plaintiffs,

:

:

vs.

:

:

ELLER & SONS TREES, INC. and

:

JERRY ELLER,

:

:

Defendants.

:

CIVIL ACTION NO. 1:05-CV-1473-CC

ORDER This matter is before the Court on Plaintiffs’ Motion to Award Statutory Damages [Doc. No. 393], Defendants’ Response to Plaintiffs’ Motion to Award Statutory Damages [Doc. No. 395], and the Reply in Support of Plaintiffs’ Motion to

Award Statutory Damages [Doc. No. 396]. For the reasons stated below, the Court grants Plaintiffs’ Motion to Award Statutory Damages and awards statutory damages in the total amount of $499,858.74.
This class action lawsuit was brought by three migrant farmworkers employed by Defendants Eller & Sons Trees, Inc. and Jerry Eller (collectively referred to herein as “Defendants”) as forestry workers at various times beginning on June 1, 1999. Plaintiffs alleged violations of the Fair Labor Standards Act, 29

U.S.C. §§ 201-19 (“FLSA”), and of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-71 (“AWPA”). Relevant to the instant Motion, the Court certified Plaintiffs’ Count I AWPA claims as a Rule 23(b)(3) class action on September 28, 2006. (Doc. No. 100.) The certified class includes Defendants’ nonsupervisory H-2B guestworkers employed during the eight forestry seasons running

Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 2 of 6
from 1999-2000 through the 2006-2007 forestry season. The Court previously has found multiple distinct violations of the AWPA. In
two separate Orders [Doc. Nos. 335 and 366], this Court granted partial summary judgment to Plaintiffs and found class-wide violations of the AWPA. Plaintiffs do not seek statutory damages for the violations of the AWPA found in the Court’s Order entered on October 7, 2008 (the “October 2008 Summary Judgment Order”). Instead, Plaintiffs seek an award of actual damages for those violations and have filed a Stipulation Regarding Actual Damages Related to Claims Determined on Summary Judgment [Doc. No. 394]. The instant Motion to Award Statutory Damages is limited to the intentional violations found by the Court in its Order entered on September 29, 2009 (the “September 2009 Summary Judgment Order”).
The Court previously found in its September 2009 Summary Judgment Order that Defendants violated the AWPA’s recordkeeping requirements under 29 U.S.C. § 1821(d). Specifically, the Court found that “Defendants failed to make, keep and preserve complete and accurate records of the Plaintiffs’ work hours and piece rate production as a normal part of their business practices,” as required by 29 U.S.C. § 1821(d)(1). (Doc. No. 366 at 14.) The Court further found that Defendants’ violation was “‘intentional’ within the meaning of the AWPA.” (Id.)
Plaintiffs maintain that the Court likewise found that Defendants failed to provide accurate work records to the workers, but the Court made no such finding in the September 2009 Summary Judgment Order. While logic dictates that Defendants could not have consistently provided the workers accurate work records, since Defendants did not always make, keep, and preserve accurate records, Plaintiffs never moved for summary judgment on their claim pursuant to 29 U.S.C. § 1821(d)(2) that Defendants failed to provide the workers accurate work records. (See generally Pls.’ Mot. for Partial Summ. J. Finding Violations of AWPA Recordkeeping Requirements [Doc. No. 208].) The Court did deny Defendants’ cross-motion for summary judgment with respect to Plaintiffs’ claim under 29 U.S.C.
- 2 -

Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 3 of 6
§ 1821(d)(2). However, insofar as the Court never granted judgment in favor of Plaintiffs based on a failure by Defendants to provide records under § 1821(d)(2), Plaintiffs, at this time, may recover statutory damages only for Defendants’ violations of 29 U.S.C. § 1821(d)(1).
The AWPA authorizes an election of remedies for AWPA violations as follows:
If the court finds that the respondent has intentionally violated any provision of this [Act] or any regulation under this [Act], it may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation, or other equitable relief, except that (A) multiple infractions of a single provision of this [Act] or of regulations under this [Act] shall constitute only one violation for purposes of determining the amount of statutory damages due a plaintiff; and (B) if such complaint is certified as a class action, the court shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000 or other equitable relief. 29 U.S.C. § 1854(c)(1). Plaintiffs who prevail on multiple AWPA claims may seek statutory damages for some violations and actual damages on others. See, e.g., Saintida v. Tyre, 783 F. Supp. 1368, 1377 (S.D. Fla. 1992) (citing Salazar-Calderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384 (5th Cir. 1989)). The same AWPA violation suffered by different individual workers constitute separate violations for the purposes of calculating statutory damages pursuant to § 29 U.S.C. § 1854(c)(1). Elizondo v. Podgorniak, 100 F. Supp. 2d 459, 462 (E.D. Mich. 2000); Bertrand v. Jorden, 672 F. Supp. 1417, 1426 (M.D. Fla. 1987); Sanchez v. Overmyer, 891 F. Supp. 1253, 1261 (N.D. Ohio 1995). Moreover, a given violation is counted as multiple, distinct violations for the purposes of AWPA statutory damages, when suffered by the same worker in successive seasons. Rivera v. Adams Packing Ass’n, 707 F.2d 1278, 1283 (11th Cir. 1983); Elizondo, 100 F. Supp. 2d at 461; Leach v. Johnston, 812 F. Supp. 1198, 1211 (M.D. Fla. 1992). Where classwide violations of the AWPA are found on representative evidence, as presented in this case, the number of violations present for assessment of damages is derived mechanically from the number of seasons worked by all class members included in
- 3 -

Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 4 of 6

the action. Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 130405 (9th Cir. 1990) (FLCRA); Alvarez v. Joan of Arc, Inc., 658 F.2d 1217, 1219 n.1-2 (7th Cir. 1981); Haywood v. Barnes, 109 F.R.D. 568, 584 (E.D.N.C. 1986).
Here, Plaintiffs seek to recover statutory damages on behalf of 3,878 individuals who worked a combined total of 7,957 forestry seasons during the 19992000 through 2006-2007 period covered by this class action.1 With respect to the AWPA claims under 29 U.S.C. § 1821(d)(1), Plaintiffs assert that 7,957 violations occurred. Based on the authority cited above and the record in this case, including the Analysis and Report Under the Fair Labor Standards Act and the AWPA of Jorge J. Rivero (the “Rivero Expert Report”) [Doc. No. 194, Pls.’ Ex. 144] and the Affidavit of Dwight D. Stweward, Ph.D. [Doc. No. 393-2], the Court agrees with Plaintiffs that the Court must assess the propriety of awarding statutory damages and the amount of any such damages for 7,957 violations.
Plaintiffs suggest that a statutory damages award of $31.41 per violation is appropriate in this case. Plaintiffs originally made this suggestion with the thought that they would be able to recover for two distinct recordkeeping violations in each season, which would have brought the total number of violations to 15,914 and the total amount of statutory damages requested to $499,858.74. Plaintiffs’ goal, obviously, is to recovery statutory damages in an amount that is as close as possible to the maximum permitted, $500,000.00. In fact, Plaintiffs request in their reply brief that, if the Court determines that Defendants violated only one provision of the AWPA, the Court award Plaintiffs $62.82 per violation in statutory damages. Therefore, in light of the Court’s conclusion that Plaintiffs presently can seek recovery for only the violation of 29 U.S.C. § 1821(d)(1), the Court will evaluate

1

This number is derived by crediting each of the 1,360 class members who

worked in the 1999-2000 season with one season, adding to that total one season for each

of the 1,325 class members who worked in the 2000-2001 season and so forth with respect

to the eight seasons treated in this case.

- 4 -

Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 5 of 6
whether an award of $62.82 per violation is appropriate. Courts use the following factors to assess the appropriateness of statutory
damages awarded under the AWPA: (1) the amount allowed to each plaintiff for each violation; (2) the total amount of the award; (3) the nature and persistence of the violations; (4) the extent of the defendants’ culpability; (5) damage awards in similar cases; (6) the defendants’ ability to prevent future violations of the AWPA; (7) the substantive or technical nature of the violations; (8) the circumstances of the case; (9) the total number of plaintiffs involved; (10) the total number of violations; and (11) the plaintiffs’ recovery on closely related claims in the same suit that will in part compensate the damages caused by violations of the AWPA. Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1332-33 (5th Cir. 1985); Saintida v. Tyre, 783 F. Supp. at 1375; Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1291, 1308-09 (M.D. Fla. 2000) (citation omitted); Bertrand, 672 F. Supp. at 1422 (M.D. Fla. 1987).
The balance of the foregoing factors weighs in favor of assessing statutory damages and awarding statutory damages in the amount of $62.82 per violation per plaintiff. As an initial matter, while Defendants argue that Plaintiffs pointed to evidence of only 100 AWPA recordkeeping violations in the daily field work records, the Court found in its 2009 Summary Judgment Order that the entire record, including the deposition testimony of 15 crew leaders and the Rivero Expert Report, demonstrated that these violations were class-wide. There were consistent patterns of inaccuracy among all crewleaders and across all seasons covered by this lawsuit. The Court likewise finds that the violations at issue are not mere technical violations but are “core protections offered by the [AWPA]”. See Sanchez, 891 F. Supp. at 1261; Bertrand, 672 F. Supp. at 1426. Further, cases relied on by Plaintiffs and Defendants indicate that an award of $62.82 per violation in this case is more than reasonable, as many courts have awarded the statutory maximum of $500 per plaintiff per violation. See Herrera v. Singh, 103 F. Supp. 2d 1244, 1252 (E.D. Wash. 2000); Avila v. A. Sam & Sons, 856 F. Supp. 763, 774 (W.D.N.Y. 1994); Bertrand, 672 F. Supp. at
- 5 -

Case 1:05-cv-01473-CC Document 405 Filed 09/28/12 Page 6 of 6
1426; Alzalde v. Ocanas, 580 F. Supp. 1394, 1396 (D. Colo. 1984). The Court recognizes that awarding $62.82 per violation in this case results in a total award closely approaching the $500,000.00 maximum for the class, but the 3,872 individuals seeking recovery are receiving a relatively small amount for the violations. Additionally, an award of this magnitude is warranted, as Defendants had been cited by the U.S. Department of Labor for past violations of the AWPA and thus were well aware of the AWPA and its requirements. Defendant Jerry Eller, who had attended training sessions on the AWPA, was actively involved in training supervisors in recordkeeping but failed to ensure that the supervisors complied with the AWPA. Finally, to the extent that there is any overlap between these violations and the other claims for which Plaintiffs are recovering, the overlap is minimal. Plaintiffs’ recovery of the statutory damages allowed will not duplicate recovery on other claims in this action.
Based on the foregoing, the Court GRANTS Plaintiffs’ Motion to Award Statutory Damages [Doc. No. 393] and AWARDS Plaintiffs $499,858.74 in statutory damages pursuant to 29 U.S.C. § 1854(c)(1).
SO ORDERED this 28th day of September, 2012.
s/ CLARENCE COOPER CLARENCE COOPER SENIOR UNITED STATES DISTRICT JUDGE
- 6 -

 
 Case 1:05-cv-01473-CC Document 412 Filed 10/29/12 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

_________________________________________

ESCOLASTICO DE LEON-GRANADOS,

)

ISAIAS PROFETA DE LEON-GRANADOS, )

and ARMENIO PABLO-CALMO

)

on behalf of themselves and all

)

others similarly situated,

)

) Case 1:05-cv-1473-CC

Plaintiffs,

)

)

v.

)

)

ELLER AND SONS TREES, INC.,

)

and JERRY ELLER,

)

)

Defendants.

)

_________________________________________ )

FINAL JUDGMENT This matter is before the Court on the Plaintiffs’ Unopposed Motion

for Entry of Final Judgment. IT IS HEREBY ORDERED:

1. With respect to the claims brought pursuant to the Fair Labor

Standards Act (FLSA) by the three named Plaintiffs and the twenty-three

(23) additional opt-in Plaintiffs, Final Judgment is hereby entered in favor of

the Plaintiffs and opt-in Plaintiffs and against Eller and Sons Trees, Inc. and

Jerry Albert Eller, jointly and severally, in the amount of $57,001.28. The

total Final Judgment amount of $57,001.28 with respect to the FLSA claims

Case 1:05-cv-01473-CC Document 412 Filed 10/29/12 Page 2 of 5

represents individual damages for each named and opt-in Plaintiff in the

following amounts:

1. Escolastico De Leon Granados 2. Isaias Profeta De Leon Granados 3. Armenio Pablo Calmo 4. Juan Aguilar Vasquez 5. Protasio Burgos Maldonado 6. Marvin Ballardo Castillo Diaz 7. Osmar Osiel De Leon Lucas 8. Alberto Diaz Diaz 9. Nelson Ignacio Hernandez Lopez 10. Alejandro Luis Morales 11. Santos Mendez Gomez 12. Felix Morales Antonio 13. Ruben Perez Lucas 14. Clementino Ramirez Montufar 15. Nelson Esteban Ramirez Perez 16. Aureliano Rivas Lucas 17. Abner Misael Rivera Montufar 18. Sergio Analla Roldan 19. Antonio Pablo Roldan Cobon 20. Jose Ruiz Rodriguez 21. Marcial Sales Diaz 22. Casimiro Silverio Lopez 23. Augustin Soto Rios 24. Jose Maria Tomas Recinos 25. Rudy Velasquez Rivas 26. Samuel Eduardo Tecun Lucas

$3,064.92 $3,127.30 $4,187.68 $1,534.32
$488.30 $3,083.06 $1,608.40 $4,755.44 $1,548.70 $1,600.00 $3,042.30
$816.60 $4,611.96 $1,581.90 $1,581.90 $1,636.48 $1,589.28 $1,652.36 $1,455.04 $3,630.96 $2,960.10
$718.12 $779.98 $2,835.86 $1,711.02 $1,399.40

2. With respect to the claims brought pursuant to the Migrant and

Seasonal Agricultural Worker Protection Act (AWPA), which were

previously certified by this Court for class action treatment pursuant to

Federal Rule of Civil Procedure 23 (Doc. 100), this Final Judgment covers

the following class of individuals:

2

Case 1:05-cv-01473-CC Document 412 Filed 10/29/12 Page 3 of 5
All those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the Defendants’ forestry operations from June 1999 until the present.
Forty-nine (49) individuals filed exclusion forms to remove themselves from
the Rule 23 class. Those individuals are therefore also excluded from this
Final Judgment. They are:
1. Oswaldo Alexander Morales Rivera 2. Aldubin Antonio Munguia Ramires 3. Armando Galo Alvarado 4. Armondo Ordonez Flores 5. Arturo Figueroa Munguia 6. Celeo Vasquez Hernandez 7. Ciriaco Mejia Ortiz 8. Concepcion Martinez Cruz 9. Edmundo Hernandez Garcia 10. Efrain Martinez Jigusoa 11. Eriberto Ortiz Ramirez 12. Erlis Osmin Velasquez Mejia 13. Ernesto Hernandes Martines 14. Fermin Videa Vasques 15. Hector Enrique Galo Garcia 16. Hector Enrique Maldonado Carrios 17. Immer Rubio Ortega 18. Jose de la Paz Gomez Figueroa 19. Jose Luis Galo Cruz 20. Jose Santos Gomez Gomez 21. Jose Santos Martinez Alvarado 22. Juan Adalberto Galo Garcia 23. Juan Alejo Mejia Ortiz 24. Julian Munguia Vasquez 25. Lucas Alvarado Sanches 26. Luis Alonso Mejia Ortiz 27. Luis Alonzo Alvarado Martinez 28. Miguel Angel Garcia 29. Orlando Ortiz Galo
3

Case 1:05-cv-01473-CC Document 412 Filed 10/29/12 Page 4 of 5
30. Oscar Alexi Flores Andino 31. Oscar Armando Munguia Arias 32. Paulino Ortiz Ramirez 33. Pedro Pablo Vasquez 34. Porfirio Perez Salgado 35. Ramon Ramirez Osorio 36. Reinaldo Vasquez Garcia 37. Santiago Videa Alvarado 38. Santos Elvin Velasquez Mejia 39. Santos Garcia 40. Merady Colman 41. Octavio Valdes Lopez 42. Wifredo So Cho 43. Apolinario Gomez Rivas 44. Diego Estanislao Pablo Martinez 45. Esau Matias Herrera 46. Jose Perez Domingo 47. Mario Morales Mendez 48. Nicolas Perez Domingo 49. Ramiro Hernandez Perez.
3. With respect to the claims brought by the Plaintiffs and other
class members pursuant to the AWPA, Final Judgment is hereby entered in
favor of the Plaintiffs and the other Rule 23 class members and against Eller
and Sons Trees, Inc. and Jerry Albert Eller, jointly and severally, in the
amount of $11,820,505.69 as to Eller and Sons Trees, Inc. and in the amount
of $11,320,646.95 as to Jerry Albert Eller.
4. By means of this Order, this Court hereby enters Final
Judgment in this action, as defined by Federal Rule of Civil Procedure
58(a)(1).
4

Case 1:05-cv-01473-CC Document 412 Filed 10/29/12 Page 5 of 5
5. The Clerk is hereby directed to enter this Final Judgment in the civil docket pursuant to Federal Rule of Civil Procedure 79(a).
SO ORDERED this 2_9_t_hday of _O_c_t_o_b_e_r_, 2012 _s_/____C_L_A_R_E_N_C_E__C_O_O_P_E_R___________________ CLARENCE COOPER SENIOR UNITED STATES DISTRICT JUDGE
5

 
 Escolastico De Leon-Granados v. Eller & Sons Trees
United States District Court for the Northern District of Georgia, Atlanta Division September 28, 2006, Decided ; September 28, 2006, Filed CIVIL ACTION NO. 1:05-CV-1473-CC

Reporter: 2006 U.S. Dist. LEXIS 73781 ESCOLASTICO DE LEON-GRANADOS, ISAIAS PROFETA DE LEON-GRANADOS and ARMENIO PABLO-CALMO on behalf of themselves and all others similarly situated, Plaintiffs, vs. ELLER AND SONS TREES, INC. and JERRY ELLER, Defendants.
Subsequent History: Motion granted by, in part, Motion denied by, in part, Motion granted by De Leon-Granados v. Eller & Sons Trees, Inc., 452 F. Supp. 2d 1282, 2006 U.S. Dist. LEXIS 74058 (N.D. Ga., 2006) Affirmed by De Leon-Granados v. Eller & Sons Trees, Inc., 2007 U.S. App. LEXIS 20961 (11th Cir. Ga., Aug. 31, 2007)
Counsel: [*1] For Escolastico De Leon-Granados, Rene Villatoro-De Leon, Margarito Recinos-Villatoro, Isaias Profeta De Leon-Granados, Armenio Pablo-Calmo, on behalf of themselves and all others similarly situated, Plaintiffs: Alex R. Gulotta, LEAD ATTORNEY, Legal Aid Justice Center, Charlottesville, VA; Andrew H. Turner, LEAD ATTORNEY, Kelley Bruner, LEAD ATTORNEY, Mary C. Bauer, LEAD ATTORNEY, Southern Poverty Law Center, Montgomery, AL; George Brian Spears, LEAD ATTORNEY, Law Office of Brian Spears, Atlanta, GA; James M. Knoepp, LEAD ATTORNEY, Tim A. Freilich, LEAD ATTORNEY, Virginia Justice Center for Farm and Immigrant Workers, Falls Church, VA.

C. Bauer, LEAD ATTORNEY, Southern Poverty Law Center, Montgomery, AL; Tim A. Freilich, LEAD ATTORNEY, Virginia Justice Center for Farm and Immigrant Workers, Falls Church, VA.
For Alejandro Luis-Morales, Jose Maria Tomas-Recinos, Plaintiffs: Andrew H. Turner, LEAD ATTORNEY, Kelley Bruner, LEAD ATTORNEY, Mary C. Bauer, LEAD ATTORNEY, Southern Poverty Law Center, Montgomery, AL; George Brian Spears, LEAD ATTORNEY, Law Office of Brian Spears, Atlanta, GA; Tim A. Freilich, LEAD ATTORNEY, Virginia Justice Center for Farm and Immigrant Workers, Falls Church, VA.
Herman Osbeli Recinos-Martinez, Plaintiff, Pro se.
For Eller and Sons Trees, Inc., Jerry Eller, Defendants: James Larry Stine, Wimberly Lawson Steckel Nelson & Schneider, Atlanta, GA.
Judges: CLARENCE COOPER, UNITED STATES DISTRICT JUDGE.
Opinion by: CLARENCE COOPER
Opinion

For Osmar Osiel De Leon-Lucas, Nelson Ignacio HernandezLopez, Marcial Sales-Diaz, Samual Eduardo Tecun, Ruben Perez-Lucas, Rosanio Concepcion-Matias, Felix MoralesAntonio, Protasio Burgos-Maldonado, Cristian Emilio Lucano Gutierrez, Agustin Soto Rios, Plaintiffs: George Brian Spears, LEAD ATTORNEY, Law Office of Brian Spears, Atlanta, GA.
For Alberto Diaz-Diaz, Jose Ruiz-Rodriguez, Juan AguilarVasquez, Aureliano Rivas-Lucas, Plaintiffs: Andrew H. Turner, LEAD ATTORNEY, Kelley Bruner, LEAD ATTORNEY, Mary C. Bauer, LEAD ATTORNEY, Southern Poverty [*2] Law Center, Montgomery, AL; George Brian Spears, LEAD ATTORNEY, Law Office of Brian Spears, Atlanta, GA; James M. Knoepp, LEAD ATTORNEY, Tim A. Freilich, LEAD ATTORNEY, Virginia Justice Center for Farm and Immigrant Workers, Falls Church, VA.
For Sergio Roldan, Plaintiff: Andrew H. Turner, LEAD ATTORNEY, Kelley Bruner, LEAD ATTORNEY, Mary

CLASS CERTIFICATION [*3] ORDER
This matter is before the Court on Plaintiffs' Renewed Motion for Certification of Class Action [Doc. No. 63], Defendants' Motion for Leave to File Memorandum of Law in Surreply to Reply in Support of Plaintiffs' Renewed Motion for Class Certification [Doc. No. 86], Plaintiffs' Motion for Leave to File Supplemental Brief in Response to Defendants' Letter of June 28, 2006 [Doc. No. 93], and Defendants' Motion for Leave to File Response to Plaintiffs' Supplemental Authority in Support of Its Renewed Motion for Certification of Class Action [Doc. No. 99].
I. BACKGROUND
The above-styled action, brought by Escolastico De LeonGranados, Isaias Profeta De Leon-Granados, and Armenio Pablo-Calmo (collectively referred to herein as "Plaintiffs") on behalf of themselves and all others similarly situated, asserts claims under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§

2006 U.S. Dist. LEXIS 73781, *3

Page 2 of 12

1801-1871 (2005) ("AWPA") and under the Fair Labor position that Defendants have misstated the significance of

Standards Act, 29 U.S.C. §§ 201-219 (1998) ("FLSA"). The the cases they cite in the proposed surreply. Insofar as the

lawsuit arises from the alleged underpayment of wages and Court is of the opinion that Defendants have demonstrated

recruiting and [*4] record-keeping violations during adequate grounds for the filing of a surreply and Plaintiffs

Plaintiffs' employment by Defendants Eller and Sons Trees, have responded substantively to the surreply, the Court

Inc. ("Eller and Sons") and Jerry Eller (collectively referred to GRANTS Defendants' Motion for Leave to File

herein as "Defendants") as migrant tree planting workers at Memorandum of Law in Surreply to Reply in Support of

various times from June 1999 through the date of filing of the Plaintiffs' Renewed Motion for Class Certification.

present action.

Accordingly, the Court has considered the surreply brief and

Plaintiffs' response to the brief in deciding the pending class Plaintiffs commenced this action on June 6, 2005, and certification motion. initially moved for class certification regarding the AWPA

claims on June 29, 2005. On October 18, 2005, the Court On June 28, 2006, Defendants sent a two-page letter to the

denied Plaintiffs' motion without prejudice, ordering a period Court, offering for the Court's consideration an Eleventh

of discovery on issues pertaining to class certification. The Circuit opinion issued on March 29, 2006. Defendants quoted

Court, however, granted the preliminary certification of a portions of two sentences from the decision and summarized

collective action under 29 U.S.C. § 216(b). The Court the holding of the case. On July 10, 2006, Plaintiffs filed a

directed Plaintiffs to renew their motion for class certification Motion for Leave to File Supplemental [*7] Brief in

on or before January 31, 2006. On January 31, 2006, Plaintiffs Response to Defendants' Letter of June 28, 2006, and attached

filed their Renewed Motion for Certification of Class Action. a ten-page brief. On July 13, 2006, Defendants filed a brief

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs opposing Plaintiff's motion. As Defendants' letter is

seek certification of a class action under subsection (b)(3) as essentially a request that the Court consider supplemental

to the AWPA claims set forth in Count I of their First authority, Defendants should have filed a document with the

Amended Complaint.

Court to bring the supplemental authority to the Court's

Plaintiffs generally allege in Count I that [*5] Defendants failed to reimburse agricultural employees who traveled to work from Mexico, Guatemala, and Honduras certain travel, recruitment, and visa processing expenses to the extent that those costs reduced the wages of Plaintiffs and all of Defendants' other H-2B guestworkers below the mandated minimum and prevailing wage rates. Plaintiffs also allege that Defendants illegally required them and other members of a

attention rather than sending a letter. Typically, parties bring supplemental authority to the Court's attention either by filing a notice of supplemental authority or a motion for leave to file supplemental authority. Notwithstanding Defendants' failure to bring the supplemental authority to the Court's attention in the proper manner, the Court will, of course, consider the supplemental authority, as it is an opinion of the Eleventh Circuit bearing on the issue of class certification. However, insofar as Defendants did not extensively discuss the decision

proposed sub-class to post collateral in the form of the deed to their homes or lands with Defendants' hiring agent abroad. Plaintiffs' other allegations generally relate to Defendants' alleged underpayment of Plaintiffs' wages and Defendants' alleged failure to keep accurate records of the hours worked by Plaintiffs and other migrant farmworker employees.

in their letter and the Court has the ability to independently review the opinion to determine its relevance, if any, to the above-styled action without the need for briefing from the parties, the Court DENIES Plaintiffs' Motion for Leave to File Supplemental Brief in [*8] Response to Defendants' Letter of June 28, 2006.

II. PRELIMINARY MATTERS
On March 31, 2006, Defendants filed a Motion for Leave to File Memorandum of Law in Surreply to Reply in Support of Plaintiffs' Renewed Motion for Class Certification. Defendants assert that a surreply is warranted because Plaintiffs, in their reply brief, make misstatements of applicable legal principles with respect to two (2) material issues and because Defendants have not previously [*6] had an opportunity to respond to the two (2) new issues. Plaintiffs filed a brief opposing Defendants' motion on April 13, 2006. Plaintiffs assert in their brief that this Court's Local Rules do not contemplate the filing of a surreply. Plaintiffs additionally take the

On August 30, 2006, Plaintiffs filed a document entitled "Supplemental Authority in Support of Plaintiffs' Renewed Motion for Certification of Class Action." The supplemental authority is a decision from the United States District Court for the Eastern District of Washington, certifying a class action brought under the APWA. On September 5, 2006, Defendants filed a Motion for Leave to File Response to Plaintiffs' Supplemental Authority in Support of its Renewed Motion for Certification of Class Action. Plaintiffs have not responded to this motion, and the Court thus deems the motion unopposed pursuant to Local Rule 7.1B. The Court accepts the Supplemental Authority in Support of

2006 U.S. Dist. LEXIS 73781, *8

Page 3 of 12

Plaintiffs' Renewed Motion for Certification of Class Action Plaintiffs have met their burden of establishing [*11] the

and GRANTS Defendants' Motion for Leave to File propriety of certifying a Rule 23 class and sub-class.

Response to Plaintiffs' Supplemental Authority in Support of its Renewed Motion for Certification of Class Action as IV. DISCUSSION

unopposed.

Plaintiffs seek in this action to represent a class consisting of:

III. STANDARD FOR CLASS CERTIFICATION
Class actions are authorized by Federal Rule of Civil Procedure 23. All class actions under Rule 23 must meet the four prerequisites [*9] set forth in Rule 23(a) and at least one subsection of Rule 23(b). SeeFed. R. Civ. P. 23; see also Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000). Additionally, it must be established from the outset that the proposed class representatives have standing to

all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the Defendants' forestry operations from June 1999 until the present.(Pls.' First Am. Compl. P 34.) Plaintiffs also propose a sub-class, represented by Plaintiff Armenio Pablo-Calmo, consisting of:

pursue the claims as to which classwide relief is sought. Wooden v. Board of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1287 (11th Cir. 2001).

all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the

The party seeking to maintain the class action bears the burden of demonstrating that class certification is proper. Rutstein, 211 F.3d at 1233; Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir. 1996). In determining whether plaintiffs have met their burden, the court's inquiry is limited to ascertaining whether the prerequisites of Rule 23 are satisfied. Collins v. International Dairy Queen, Inc., 168

Defendants' forestry operations from January 1, 2003 until the present who pledged collateral with the Defendants agents in order to obtain employment with the Defendants.(Pls.' First Am. Compl. P 35.) Plaintiffs contend that the requirements of Rule 23(a) and the predominance and superiority requirements of Rule 23(b)(3) are satisfied.

F.R.D. 668, 673 (M.D. Ga. 1996). The court considers any supplementary evidentiary materials the parties produce in addition to the complaint, but the court generally does not examine the merits of the case. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) [*10] ("There is nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action."). Nevertheless, "evidence pertaining to the requirements embodied in Rule 23 is often intertwined with the merits, making it impossible to meaningfully address the Rule 23

Defendants oppose class certification under Federal Rule of Civil Procedure 23, arguing primarily the following: (1) with [*12] respect to Plaintiffs' AWPA claims for improper recordkeeping resulting in improper payment of wages, individualized fact questions by far predominate over claims common to the class as a whole; (2) the procedures available under § 216(b) offer a superior method of adjudicating Plaintiffs' claims; and (3) the named Plaintiffs are not suitable class representatives. (Defs.' Opp'n to Pls' Renewed Mot. for Certification of Class Action at 1.)
A. Standing

criteria without at least touching on the 'merits' of the litigation." Cooper v. Southern Co., 390 F.3d 695, 712 (11th Cir. 2004) (citations omitted).

To establish appropriate standing, only one named Plaintiff must possess the same interest as and suffer the same alleged injury as the class members. In re: Terazosin Hydrochloride

The court must perform a "rigorous analysis" in order to determine that the prerequisites of Rule 23 are satisfied. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). The court has great discretion in certifying and managing a proposed class

Antitrust Litig., 220 F.R.D. 672, 683-84 (S.D. Fla. 2004). Having reviewed the allegations in Plaintiffs' First Amended Complaint and the evidence of record, the Court finds that the named Plaintiffs have standing to pursue the claims in Count I of the First Amended Complaint on behalf of the proposed

action. Heffner v. Blue Cross and Blue Shield of Alabama, class and that Plaintiff Pablo-Calmo possesses standing to Inc., 443 F.3d 1330, 1337 (11th Cir. 2006); Kilgo v. Bowman pursue the AWPA claim regarding the posting of collateral on Transportation, Inc., 789 F.2d 859, 877 (11th Cir. 1986). behalf of the proposed sub-class.

Having applied the foregoing standard, the Court finds that

2006 U.S. Dist. LEXIS 73781, *12

Page 4 of 12

B. Rule 23(a)

Defendants' records show that 1,374 Guatemalan H-2B

workers have been contracted just over the past three seasons,

Rule 23(a) sets forth four requirements that must be met and it is undisputed that the overwhelming majority of these

before [*13] a case can proceed as a class action:

men posted their deeds with Defendants' labor contractors at

the time of hire. The Court finds that joinder of all members

One or more members of a class may sue or be sued of the proposed class and sub-class would be impracticable, as

as representative parties on behalf of all only if (1) they are alleged to be geographically dispersed, relatively

the class is so numerous that joinder of all members indigent, non-fluent in English, and unfamiliar with the

is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of

American legal system. Further, the claims of the putative class members are alleged to be limited in size. (See Pl.'s First

the representative parties are typical of the claims or Am. Compl. PP 2-3, 36.) Defendants have not specifically

defenses of the class, and (4) the representative challenged the class certification motion on the ground of

parties will fairly and adequately protect the interests numerosity. The Court finds that the numerosity requirement

of the class.Fed. R. Civ. P. 23(a). Courts commonly is met here for both the class and sub-class. See Recinos-

refer to the Rule 23(a) prerequisites as: (1) Recinos v. Express Forestry, Inc., 233 F.R.D. 472, 478-79

numerosity, (2) commonality, (3) typicality, and (4) (E.D. La. 2006) (finding that numerosity requirement was

adequacy of representation. Cooper v. Southern Co., satisfied for similar reasons with [*16] respect to class of 300

390 F.3d at 711 n. 6. The Court addresses each of migrant agricultural workers in almost identical action);

these requirements in the context of this case in turn below.

Silva-Arriaga v. Texas Express, Inc., 222 F.R.D. 684, 688 (M.D. Fla. 2004) (finding that numerosity requirement was

1. Numerosity

satisfied for similar reasons with respect to class of over 200 migrant agricultural workers); Rodriguez v. Carlson, 166

F.R.D. 465, 472 (E.D. Wash. 1996) (finding that numerosity The numerosity prerequisite of Rule 23(a) requires that the requirement was satisfied for similar reasons with respect to class and sub-class be so numerous that joinder of all class of 100 migrant workers). members individually is "impracticable." Fed. R. Civ. P.

23(a)(1). No specific numerical threshold is required. Rather, 2. Commonality each case must be examined independently. General Tel. Co.

v. E.E.O.C., 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d In order to maintain a class action, there also must be

319 (1980). [*14] Generally, forty (40) or more members will questions of law or fact common to the class and sub-class.

satisfy the numerosity requirement. Cox v. American Cast Fed. R. Civ. P. 23(a)(2). The commonality requirement "is

Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Further, not high, requiring only that resolution of the common

"impracticable" does not mean impossible. Rhodes v. Cracker questions affect all or a substantial number of the class

Barrel Old Country Store, Inc., 213 F.R.D. 619, 674 (N.D. members." Collins, 168 F.R.D. at 674. A single common

Ga. 2003). Plaintiff "'need only show that it would be question of law or fact is sufficient. Powers v. Stuart-James

extremely difficult or inconvenient to join all members of the Co., 707 F. Supp. 499, 502 (M.D. Fla. 1989). In order to class.'" In re Miller Indus., Inc. Secs. Litig., 186 F.R.D. 680, satisfy this requirement, the class action "must involve issues

685 (N.D. Ga. 1999) (quoting In re Domestic Air Transp. that are susceptible to class-wide proof." Murray v. Antitrust Litig., 137 F.R.D. 677, 698 (N.D. Ga. 1991)). The Auslander, 244 F.3d 807, 811 (11th Cir. 2001). [*17]

size of the class, the geographical dispersion of the class, the

ease of class member identification, the nature of the action, Plaintiffs set forth the following common questions of fact

and the size of each class member's claim affect the with respect to members of the class: (1) whether Defendants

practicability of joinder of the class members. Zeidman v. J. violated their working arrangements with Plaintiffs and other

Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981); putative class members by failing to furnish the terms and

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, conditions of employment promised Plaintiffs in their

666 (N.D. Ga. 2001).

contracts and required by federal law; (2) whether Defendants

failed to reimburse Plaintiffs and other putative class

According to the allegations of Plaintiffs' First Amended members for visa processing and travel costs to the United

Complaint, the class is believed to include over 1,500 States, incurred for the primary benefit of Defendant

predominantly Guatemalan, [*15] Mexican, and Hungarian employers; (3) whether Defendants failed to pay Plaintiffs and

workers who planted trees and performed other

other putative class members

forestry-related activities for Defendants. (Pls.' First Am.

Compl. PP 2, 36.) Further, as pointed out in Plaintiffs' brief,

2006 U.S. Dist. LEXIS 73781, *17

Page 5 of 12

their minimum, prevailing and overtime wages promptly Plaintiff [*20] Pablo-Calmo and other putative class

when due; (4) whether Defendants, through their agents, members sign over collateral in order to obtain employment

knowingly provided the named Plaintiffs and other putative with Defendants violated the AWPA's working arrangement

class members with false and misleading information about provisions; and (3) whether Defendants' violations of the

the work and its compensation; (5) whether Defendants made, AWPA were "intentional" within the meaning of that statute.

kept and preserved accurate payroll records as required by the (Pls.' First Am. Compl. P 37; Pls.' Renewed Mot. at 7-8.)

AWPA and its implementing regulations, with respect to the labor of Plaintiffs and the other putative class members; and (6) whether Defendants provided to Plaintiffs and other putative members of the class complete and accurate wage [*18] statements required by the AWPA and its implementing regulations on each payday. (Pls.' First Am. Compl. P 37; Pls.' Renewed Mot. at 4-6.) The common question of fact for the sub-class is whether Plaintiff Pablo-

Defendants appear to concede commonality, although they heavily dispute predominance, as discussed infra. In any event, the factual and legal issues mentioned above demonstrate that Plaintiffs easily meet the requirement of commonality. As an initial matter, the members of the proposed class and sub-class share a common factual circumstance of having worked for Defendants as H-2B

Calmo and other members of the proposed sub-class were required to post collateral, in the form of the deed to their land, with Defendants' recruiting agents abroad, in order to obtain work with Defendants. (Pls.' First Am. Compl. P 37; Pls.' Renewed Mot. at 5.)

temporary workers. See Recinos-Recinos, 233 F.R.D. at 479 ("the members of the proposed class share a common factual circumstance of having worked for defendants as H-2B temporary workers"). Moreover, with respect to the proposed class, there are common questions of fact and law arising from, inter alia, Defendants' alleged failure to pay Plaintiffs

Plaintiffs present the following common questions of law with and other putative class members prevailing and overtime

respect to members of the class: (1) whether Defendants' wages promptly when due, Defendants' alleged failure

failure to pay Plaintiffs and other putative class members the to [*21] reimburse workers travel, recruitment and visa-

minimum, prevailing and overtime wage as required by the H- processing costs, Defendants' alleged failure to maintain

2B temporary foreign labor program violated the AWPA's complete and accurate payroll records, and Defendants'

working arrangement provisions; (2) whether Defendants' alleged failure to provide Plaintiffs and other putative class

failure to pay Plaintiffs and other putative class members the members the terms and conditions of employment promised

minimum, prevailing and overtime wage as required by the H- to them in their contracts and as required by federal law. With

2B temporary foreign labor program violated the AWPA's respect to the proposed sub-class, there are common questions

wage payment provisions; (3) whether the Defendants' failure of law and fact arising from Defendants requiring that

to reimburse Plaintiffs and other putative class members for Plaintiff Pablo-Calmo and other putative class members sign

visa processing and travel costs to the United States, incurred over collateral to obtain employment with Defendants.

for the primary [*19] benefit of the Defendant employers, Accordingly, the Court finds that the commonality

violated the AWPA's working arrangement provisions; (4) requirement of Rule 23(a)(2) is satisfied.

whether Defendants' failure to reimburse Plaintiffs and other putative class members for visa processing and travel costs to 3. Typicality

the United States, incurred for the primary benefit of the Defendant employers, violated the AWPA's wage payment provisions; (5) whether Defendants' failure to make, keep and preserve accurate payroll records with respect to the labor of Plaintiffs and the other putative class members violated the AWPA; (6) whether Defendants' failure to provide Plaintiffs and other putative class members with complete and accurate wage statements on each payday violated the AWPA; and (7) whether Defendants' violations of the AWPA were "intentional" within the meaning of that statute. (Pls.' First Am. Compl. P 37; Pls.' Renewed Mot. at 6-8.) The common questions of law for the sub-class are the following: (1) whether the requirement that Plaintiff Pablo-Calmo and other putative class members sign over collateral in order to obtain employment with Defendants was void as an agreement purporting to waive or modify Plaintiffs' rights under the AWPA; (2) whether the requirement that

Rule 23(a)(3) requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). The test of typicality is whether (1) other members have the same or similar injury; (2) the action is based on conduct which is not unique to the named plaintiffs; and (3) other class members have been injured by the same course of conduct. "Typicality measures whether a sufficient nexus exists between the [*22] claims of the named representatives and those of the class at large." Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). "A sufficient nexus is established if the claims or defenses of the class and the class representatives arise from the same event or pattern or practice and are based on the same legal theory." Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). This requirement does not

2006 U.S. Dist. LEXIS 73781, *22

Page 6 of 12

mandate that all putative class members share claims based on last six seasons in violation of the AWPA. (Pls.' First Am.

identical factual circumstances. Cooper, 390 F.3d at 714 (11th Compl. PP 23, 44-50.) This claim [*25] certainly is proper

Cir. 1984). As such, "[a] factual variation will not render a for class treatment under Rule 23.

class representative's claim atypical unless the factual position of the representative markedly differs from that of other members of the class." Kornberg, 741 F.2d at 1337. When there is a strong similarity of legal theories, even substantial factual differences will not bar class certification. Murray, 244 F.3d at 811.

Plaintiffs further allege in this case that Defendants violated the AWPA by maintaining and providing false and inaccurate records of hours worked by them and the other putative class members. (Pls.' First Am. Compl. PP 28, 52.) According to Plaintiffs, the evidence obtained thus far reveals that the time records Defendants kept are false and inaccurate in that they

Plaintiffs contend that their claims are typical of those of the consistently and dramatically overstate lunch breaks taken by

putative class. That is, Plaintiffs seek declaratory relief, workers during the planting day, consistently fail to credit

injunctive relief, and damages [*23] with respect to workers for time spent performing work activities other than

Defendants' alleged failure to make, keep and preserve planting, indicate dramatic variation of work hours among

accurate payroll records, issue accurate wage statements, workers on the same crew who worked together on the same

honor their working arrangement and pay wages when due schedule, and curiously show start, stop and break times

with respect to labor performed during the tree planting occurring exactly on the hour for a large proportion of

season. Defendants argue that the named Plaintiffs' claims are workers. With respect to these allegations, particularly,

not necessarily typical of those of the putative class because Defendants argue that it will be difficult for Plaintiffs to have

the named Plaintiffs worked under different supervisors claims that are typical of other putative class members

during various seasons. According to Defendants, even because there were over 150 crews with 75 different crew

supervisors who worked under a single Regional Director leaders, who maintained records and recorded hours

varied in how they ran their crews and kept track of time. As differently, despite the set policies that Eller and Sons had in

the members of the putative class worked under supervisors place. Plaintiffs [*26] point out, however, that all the field

reporting to different Regional Directors, Defendants argue supervisors produced for deposition testified to recording the

that the experiences of Plaintiffs and other workers could vary work hours of their crew members as they were taught by the

depending on which Regional Director their supervisor Eller and Sons central office. (See Deposition of Ogler Roeli

worked under.

Castillo Recinos "Castillo Recinos" Dep. at 82-83, Pls.' Ex.

Having considered the parties' respective positions and the evidence of record, the Court finds that the claims of the named Plaintiffs are typical of the other putative class members, although the underlying factual circumstances may

35c; Deposition of Edy Otoniel Figueroa Garcia "Figueroa Garcia Dep." at 37, Pls.' Ex. 43; Deposition of Oziel Villatoro Matias "Villatoro Matias Dep." at 59-60, Pls.' Ex. 44; Recinos Dep. at 93-94; Deposition of Argelio Enai Castillo Villatoro "Castillo Villatoro Dep." at 59, Pls.' Ex. 42; Deposition of

differ with respect to some of the claims. Notably, Plaintiffs allege that Plaintiffs and other putative class members [*24] spent considerable sums of money to process their H-2B work visas and to travel from their homes to the United States. (Pls.' First Am. Compl. PP 23, 44-50.) Based on facts learned through class certification discovery, Plaintiffs contend that Defendants had a company-wide policy of shifting to workers travel and visa-processing costs without ever reimbursing them. (See Deposition of Ismael Olegario Recinos "Recinos Dep." at 30-36, 97, Pls.' Ex. 32; Defs.' Resp. To Pls.' 1st Request for Admissions, # 55-58, Ex. 36.) As such, Plaintiffs argue and intend to prove that these expenses reduced the wages of all Eller & Sons H-2B workers in approximately the same amount, regardless of the specific type of work to which the workers were assigned, regardless of the U.S. state to which they were deployed for work, and regardless of the supervisors under whom the workers labored. Plaintiffs allege that the failure of Defendants to reimburse them and the other workers for these expenses caused them to earn less than the required minimum and

Henry Bagner Villatoro Villatoro "Villatoro Villatoro Dep." at 46-47, Pls.' Ex. 45.) Plaintiffs also present evidence that the Eller and Sons central office checks the daily score sheets once they are received and investigates perceived problems in work hours reported by the field supervisors. (Eller and Sons Dep. at 158-159, Pls.' Ex. 33b1.) Thus, although Defendants assert that Plaintiffs do not take issue with Defendants' company policies, it appears that Plaintiffs do take issue with the manner in which supervisors are allegedly taught to record hours by the Eller & Sons central office and with [*27] the alleged failure of the central office to inquire about and address the alleged problems with the time records. Plaintiffs' theory is that the "false recordkeeping practices were a widespread phenomenon resulting from company policy that workers were paid on a piece rate basis and that timekeeping records should reflect workers' piece rate earnings and avoid the appearance of overtime hours." (Pls.' Br. at 14.) Likewise, Plaintiffs contend that there was a widespread company practice of not recording the time

prevailing wages in their first week of work in each of the

2006 U.S. Dist. LEXIS 73781, *27

Page 7 of 12

for work performed by workers before the planting day began, acknowledge that workers relinquished their deeds or deeds of

notwithstanding the company's uniform policy to the contrary. their friends or family members, but Defendants dispute that

Plaintiffs' theory is that Defendants overlooked deviations this was a requirement they imposed. Defendants point to

from company policy. These are only examples of the alleged evidence [*30] in the record showing that the workers came

company practices Plaintiffs seek to challenge on behalf of up with the idea to leave their deeds as a way to address the

themselves and those similarly situated. While some facts consulate's concern that workers were not returning to their

may differ with respect to various class members, Plaintiffs' home country after they left to go work in the United States

legal theories will be the same. Whether Plaintiffs will for Defendants. (Deposition of Eller and Sons "Eller and

ultimately prevail on these theories is not the Court's concern Sons" Dep. at 56-58.) Plaintiffs, however, have presented the

at this stage. See Eisen, 417 U.S. at 177-78. Accordingly, affidavit of one of Defendants' former employees who attests

these claims, and the related claim that Defendants have that he was actually precluded from employment because he

failed [*28] to pay Plaintiffs and the putative class members was not a property owner capable of posting deed collateral.

hourly and overtime wages, (see Pls.' First Am. Compl. PP (See Affidavit of Tecun-Lucas P 5, Pls.' Ex. 41.) Whether

30-32, 44-45), are also proper for class treatment, as the Defendants actually required workers to leave deeds to obtain

claims of the named Plaintiffs in this regard will be typical of employment and whether any such requirement violated the

those of the putative class members.

law are matters to be resolved on the merits, and the Court

Plaintiffs allege that Defendants violated the AWPA by failing to pay workers for full-time employment, as Defendants allegedly certified they would do when they applied for the H-2B work visas necessary to obtain work visas for Plaintiffs and other putative class members. (Pls.' First Am. Compl. P 26.) Plaintiffs present evidence that the named representative Plaintiffs have collectively been paid for an average of just 24 hours per weekly pay period. (See Affidavit of Sarah P. Reynolds "Reynolds Aff." P 11, Pls.' Ex.

does not address the merits at the class certification stage. See Eisen, 417 U.S. at 177-78. However, Plaintiffs have come forward with sufficient allegations and evidence to show that this claim is also typical of claims of putative class members of the proposed sub-class, as the claim arises from an alleged common practice of Defendants and allegedly injured Plaintiff Pablo-Calmo, the named representative for [*31] this sub-class, and other putative members of the sub-class in a similar way.

46.) Plaintiffs believe that other members of the putative class In sum, the Court finds that the typicality requirement is

likewise have not been paid for full-time employment. satisfied as to the putative class and sub-class because the

Plaintiffs contend that the failure to pay them and other claims of the named Plaintiffs are similar in all relevant

members of the putative class for full-time employment aspects to those of the other members of the putative class and

constitutes a violation of their working arrangement under the the claims of Pablo-Calmo are similar in all relevant aspects

AWPA and that the failure constitutes a failure to pay them to the claims of the putative sub-class. The above-mentioned

their wages owed promptly when due in violation [*29] of claims are not unique to Plaintiffs but are alleged to arise

the AWPA. (Pls.' First Am. Compl. PP 48-50.) The Court from a common course of conduct that injured all of the H-2B

believes that this claim, too, satisfies the typicality workers who were employed by Defendants during the

requirement.

relevant time period in a similar fashion. As Plaintiffs argue

Plaintiffs finally contend with respect to the proposed class that Defendants knowingly provided them and the other members of the putative class with false and misleading information regarding the terms and conditions of their

in their brief, "[i]f the named Plaintiffs are to succeed on their own claims, they must establish that Defendants violated the AWPA in precisely the same manner as is alleged with regard to the other class members." (Pls.' Br. at 39.)

employment. Specifically, Plaintiffs allege that Defendants 4. Adequacy of Representation

knowingly provided them and other members of the putative class false and misleading information in the guarantees of prevailing and overtime wages to be paid for all hours worked in violation of the AWPA. The claims of Plaintiffs and of the other putative class members in this regard obviously arise from the same course of conduct and are based on the same legal theory.

The final requirement of Rule 23(a) is that the representative parties fairly and adequately protect the interests of the class. SeeFed. R. Civ. P. 23(a)(4). The purpose of the adequacy requirement is [*32] to protect the legal rights of absent class members. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987). The court must inquire into whether the plaintiffs' counsel is qualified to carry out the litigation,

As to the proposed sub-class, Plaintiffs allege that Defendants "whether the plaintiffs have interests antagonistic to those of

required workers to leave the deeds to their property with the rest of the class," and whether the plaintiffs possess the

their recruiters to obtain employment with Defendants. (Pls.' "personal

First Am. Compl. PP 4, 24.) Defendants

2006 U.S. Dist. LEXIS 73781, *32

Page 8 of 12

characteristics and integrity necessary to fulfill the fiduciary provided testimony that is unworthy of

role of class representative." Id. at 726 (quoting Griffin v. credence. [*35] Defendants assert that the named Plaintiffs

Carlin, 755 F.2d 1516, 1532 (11th Cir. 1985)). A party's claim provided unbelievable testimony regarding the hours they

of representative status is defeated only if there exists a worked. Defendants point out, for example, that Isaias Profeta

fundamental conflict between the representative and the class, De Leon-Granados testified that he regularly worked until

going to the specific issues in controversy. Pickett v. Iowa 7:00 p.m. during December through February but that he did

Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000).

not work in the dark. (Deposition of Isaias Profeta De Leon-

Plaintiffs assert they will fairly and adequately represent the interests of the class. They further assert that Plaintiffs' interests are in no way antagonistic to those of the other class members. Plaintiffs represent that their counsel is experienced in federal court litigation under the AWPA and will vigorously prosecute this action on behalf of [*33] the class. According to the declaration of attorney Mary Bauer, the Southern Poverty Law Center has sufficient funds available to

Granados "Profeta De Leon-Granados Dep." at 22-23.) Defendants assert in a conclusory fashion that the testimony is difficult to believe, since the sun sets approximately between 5:00 pm and 5:30 pm during winter months in the southeastern United States where Plaintiffs were planting trees. However, in the absence of any evidence regarding when the sun sets and at what times it becomes "dark" outside, the Court is not willing to discredit the testimony of Isaias Profeta De Leon-Granados such as to declare him an

finance the costs of the litigation. (Declaration of Mary Bauer unsuitable class representative, particularly since people could

"Bauer Decl." P 5, Pls.' Ex. 6.)

subjectively assess "dark" differently. 2

Defendants contend that the named Plaintiffs are unsuitable class representatives, as they have made false statements during their depositions regarding the hours they worked and have invoked the Fifth Amendment privilege against selfincrimination to refuse to answer questions about whether they have worked for other employers in the United States. Defendants likewise assert that Plaintiffs' counsel is not adequate within the requirements of Rule 23 because their willingness to advance costs is not without limitations. In that regard, Defendants present the declaration of former named Plaintiff Maragarito Recinos-Villatoro, 1 who declares that Andrew Turner, counsel of record for Plaintiffs, told him that if he did not continue in the lawsuit that he would have to reimburse the Southern Poverty Law Center for the cost of his travel, lodging, and other costs that were paid by them in connection with his deposition. (Declaration of Margarito Recinos-Villatoro [*34] "Villatoro Decl." P 3, Defs.' Ex. 5.) Mr. Recinos-Villatoro further declares that a woman who said she worked for the Southern Poverty Law Center called him after he withdrew the lawsuit and told him that Eller and Sons and the Southern Poverty Law Center had settled the lawsuit and that he could get money but that he would have to sign papers to do so. (Id.) The Court addresses these arguments below.

[*36] Defendants next emphasize that, while Plaintiffs allege that Defendants made improper deductions from their pay for tools and transportation, the named Plaintiffs were unable to identify any such deductions on their pay stubs. (Profeta De Leon-Granados Dep. at 24-27; Deposition of Escolastico De Leon-Grandos at 18-22; Deposition of Armenio Pablo-Calmo "Pablo-Calmo Dep." at 24-25.) They each testified, however, that they had been told by their supervisors that the deductions were being made. (Profeta De Leon-Granados Dep. at 25; Escolastico De Leon-Granados Dep. at 19; PabloCalmo Dep. at 24-25.) In the Court's view, these issues need to be more fully developed before the named Plaintiffs' testimony is labeled "unbelievable" or "incredible." Thus, at this stage, the Court is not willing to find that the named Plaintiffs are inadequate as representatives based simply on questions about their deposition testimony that might be explained with additional discovery.
A more compelling argument made by Defendants is that the named Plaintiffs are unsuitable representatives because they invoked the Fifth Amendment privilege against selfincrimination when asked during their depositions whether [*37] they had worked in the United States for employers other than Defendants after leaving

The Court rejects Defendants' argument that the named Plaintiffs are not suitable representatives because they have

1 Mr. Recinos Villatoro withdrew from the lawsuit on January 25, 2006, because of the threats and the pressure that he felt from the company Eller and Sons through his relative Ismael Recinos, the contractor for Eller and Sons, and from the community and because of the fears he had for his own safety and the safety of his family. (See Second Affidavit of Magarito Recinos Villatoro "Second Villatoro Affidavit" PP 4, 8, 12, 14, Pls.' Ex. 61.)
2 The Court also notes that the business records of one of Defendants' customers indicate that the H-2B workers would load up trees after 3:30-4:00 pm and continue planting when it was too dark to see the trees. (See E-mail of Jeff Morris, dated Dec. 18, 2002, Pls.' Ex. 57.) Thus, the testimony of Plaintiffs that they would work around and after sunset is not wholly incredible.

2006 U.S. Dist. LEXIS 73781, *37

Page 9 of 12

employment with Defendants. Defendants argue that this of the Fifth Amendment privilege. See, e.g., Arango v. U.S.

information is relevant because of the claim that Defendants Dep't of Treasury, 115 F.3d 922, 926 (11th Cir. 1997) ("the

are liable to Plaintiffs and the putative class members for Fifth Amendment does not forbid adverse inferences against

Defendants' alleged failure to reimburse visa costs and civil litigants … who assert the privilege against self-

transportation expenses that Plaintiffs allege were incurred incrimination"); United States v. Two Parcels of Real Prop.,

primarily for the benefit of Defendants. Defendants maintain 92 F.3d 1123, 1129 (11th Cir. 1996) ("the trier of fact may

that the employment history of the named Plaintiffs is take an adverse inference against the parties to a civil action

relevant to the determination of whether the expenses were refusing to testify on Fifth Amendment grounds").

incurred primarily for the benefit of Defendants.

Nevertheless, as this is a legal issue going directly to the

Plaintiffs counter that binding Eleventh Circuit authority requires that pre-employment expenses incurred primarily for the benefit of the employer be reimbursed during the first week of the employee's employment. See Arriaga v. Florida Pac. Farms, L.L.C., 305 F.3d 1228, 1237 (11th Cir. 2002) ("Workers must be reimbursed during the first workweek for

merits of Plaintiffs' claim that the Court should decide before prematurely deeming the named Plaintiffs inadequate, the Court will not at this time deny class certification based on the named Plaintiffs' assertion of the privilege, particularly since there is a possibility that the named Plaintiffs could be substituted. [*40] 3 Notwithstanding the foregoing, the Court is mindful that "basic consideration of fairness requires that a

pre-employment expenses which primarily benefit the court undertake a stringent and continuing examination of the

employer, to the point that wages are at least equivalent to the minimum wage."); accord Marshall v. Root's Restaurant, 667 F.2d 559, 560 (6th Cir. 1982) (requiring [*38] restaurant to reimburse waitresses during first workweek for costs incurred by waitresses to purchase uniforms required for employment). Accordingly, Plaintiffs argue that the only relevant time period as it pertains to Plaintiffs' employment history is their

adequacy of representation by the named class representatives at all stages of the litigation where absent members will be bound by the court's judgment." Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1374 (11th Cir. 1984). Accordingly, the Court will adhere to this obligation and revisit this issue at its earliest opportunity after the legal issue is resolved.

first week of work in the United States subsequent to their With respect to Defendants' argument regarding the

arrival on H-2B visas. Because Plaintiffs are willing to answer inadequacy of Plaintiffs' counsel, the Court finds that,

any and all questions regarding their first week of work in notwithstanding the communications between Margarito

each season, and all other weeks of employment by Recinos-Villatoro and the [*41] staff of the Southern Poverty

Defendants, and because Plaintiffs contend that questions Law Center, the Southern Poverty Law Center adequately

regarding any other time period are improper and should not represents the proposed class and sub-class and is competent

be asked in the first instance, Plaintiffs contend that their to pursue this litigation. As to the communications, attorney

assertion of the Fifth Amendment privilege is irrelevant. In Andrew H. Turner has submitted an affidavit in which he

brief, Defendants reply that, although the law relied on by avers that the Southern Poverty Law Center is a 501(c)(3), tax

Plaintiffs addresses when expenses incurred primarily for the exempt, non-profit organization, which has policies against

benefit of the employer must be paid, the law does not address charging any clients for legal representation or for any costs

the determination of whether expenses are incurred primarily of fees associated therewith. (Affidavit of Andrew H. Turner

for the benefit of an employer.

"Turner Aff." P 2, Pls.' Ex. 60.) He further avers that he never

told Mr. Recinos-Villatoro that he had to reimburse costs to

As the parties are aware, this is a legal issue that the Court must fully consider and resolve on the merits at an appropriate time in the litigation. However, if the issue is resolved in [*39] favor of Defendants, the Court understands that the interests of the named Plaintiffs in protecting themselves under the Fifth Amendment may become antagonistic to the interests of the putative class members, who may be adversely impacted by any adverse inference drawn based on the named Plaintiffs' assertion

the Southern Poverty Law Center. (Id. PP 3, 6-7.) According to Mr. Turner, the retainer agreement that Mr. RecinosVillatoro signed with the Southern Poverty Law Center clearly states, "SPLC agrees that it will provide legal services free and at no charge to me. SPLC will be responsible for paying litigation costs and attorney expenses incurred during the course of my representation." 4 (Id. P 5.) Mr. Turner further avers that, prior to Mr. Recinos-Villatoro's formal withdrawal from the case, he

3 As the adequacy of the named Plaintiffs may be challenged in the future, depending on the Court's ruling on the legal issue, the Court encourages Plaintiffs in the meantime to determine if there are other members of the class who might fairly and adequately represent the class.
4 Plaintiffs offer to submit the retainer agreement to the Court under seal, but the Court finds that such action is not necessary.

2006 U.S. Dist. LEXIS 73781, *41

Page 10 of 12

did call Mr. Recinos-Villatoro, together with paralegal [*42] Sarah Reynolds, to inform him that counsel for Defendants had contacted him to indicate that he would be crafting a settlement offer in preparation of mediation in the case. (Id. P 7.) He further states that the purpose for the call was to ensure that Mr. Recinos-Villatoro wished to withdraw his claims, even in light of a probable exclusion from a possible settlement. (Id.) Upon being informed that Mr. Recinos-Villatoro still desired to withdraw, Mr. Turner filed Mr. Recinos-Villatoro's withdrawal from the lawsuit within a few days of the conversation. (Id. P 8.) There obviously are major discrepancies between Mr. Recinos-Villatoro's declaration and the affidavit of Mr. Turner. However, the existence of these discrepancies does not mandate an

Federal Rule of Civil Procedure 23(b)(3) permits a class action if common questions of law or fact predominate over individual questions. "That common questions of law or fact predominate over individualized questions means that 'the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.'" Rutstein, 211 F.3d at 1233 (quoting Kerr v. City of West Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989)). "Where, after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized [*45] proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, such

evidentiary hearing, as it would be impractical and an claims are not suitable for class certification under Rule inefficient use of time and resources to require Mr. Recinos- 23(b)(3)." Klay v. Humana, 382 F.3d 1241, 1255 (11th Cir. Villatoro to travel from Guatemala to appear before the Court, 2004) (citation omitted).

particularly when there are several other factors establishing that the Southern Poverty Law Center will fairly and adequately protect the interests of the class.

Unsurprisingly, Plaintiffs take the position that the class claims in this case predominate over any question affecting the individual members of the putative class. Defendants

[*43] The Southern Poverty Law Center has served as class counsel in eighteen cases over the course of the past thirty years. (See Affidavit of Rhonda Brownstein "Brownstein Aff." P 6, Pls.' Ex. 62.) Attorneys at the Southern Poverty Law Center have been class counsel in actions before the Supreme Court of the United States, the Eleventh Circuit, the Fifth Circuit, the Eastern District of Louisiana, the Middle District of Alabama, the Northern District of Alabama, and the Western District of Kentucky. (Id.) Mary Bauer, one of the attorneys for Plaintiffs in this action, is the director of the

argue, on the other hand, that individual questions predominate over common questions of law or fact with respect to Plaintiffs' allegations regarding inaccurate records of hours worked and resulting improper pay. Defendants assert that the claims of Plaintiffs and the other putative class members must be addressed on an individualized basis because of the many variations of the practices of the various crews. Defendants also contend that their assertion of the Motor Carrier Act affirmative defense will require individualized proof and weighs against class certification.

Southern Poverty Law Center's Immigrant Justice Project. (Bauer Decl. P 3.) For the past seven years, she has focused primarily on cases involving the employment rights of immigrant workers. (Id.) Some of the cases she has handled include large collective action cases under the FLSA, and she has also litigated numerous cases under the AWPA. (Id. P 4.) The Southern Poverty Law Center has sufficient funds and will advance all appropriate costs of the litigation. (Id. P 6.) Accordingly, while the averments of Mr. Recinos-Villatoro are concerning and taken seriously by the Court, the [*44] Court finds that the Southern Poverty Law Center "is qualified, experienced, and will competently and vigorously prosecute this suit." Singer v. AT&T Corp., 185 F.R.D. 681, 690 (S.D. Fla. 1998). If circumstances so warrant, the Court will revisit the question of counsel's adequacy as this action progresses.

The common questions here represent a significant aspect of the case. The common questions here include, inter alia, the following: (1) whether Defendants [*46] violated the AWPA's arrangement and wage payment provisions by not reimbursing Plaintiffs and other putative class members their visa and travel expenses; (2) whether Defendants knowingly provided false and misleading information about the terms and conditions of employment; (3) whether Defendants failed to make, keep, and preserve accurate payroll records as required by the AWPA and its implementing regulations, with respect to the labor of Plaintiffs and other putative class members; and (4) whether Defendants' compensation practices violated the provisions of the AWPA. Defendants emphasize that the evidence presented by the parties thus far indicates that different supervisors recorded workers' time differently. However, Plaintiffs' argument is that the evidence

C. Rule 23(b)(3)

reveals company-wide practices, such as failing to pay prevailing wages and overtime and failing universally to keep

Having satisfied the prerequisites set forth in Rule 23(a), accurate records. Further, while "[a]ffirmative defenses

Plaintiffs next must satisfy Rule 23(b)(3).

should be considered in making class certification decisions,"

1. Predominance

Smilow v. Southwestern Bell

2006 U.S. Dist. LEXIS 73781, *46

Page 11 of 12

Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003) (citation proposed class or sub-class would prefer or be able to

omitted), "[c]ourts traditionally have been reluctant to deny prosecute his or her own claim. Second, the

class action status [*47] under Rule 23(b)(3) simply because Court is not aware of any other litigation concerning this

affirmative defenses may be available against individual controversy commenced by the class members. Third, class

members," id.; see also Hoxworth v. Blinder, Robinson & treatment of the claims under the AWPA would provide

Co., 980 F.2d 912, 924 (3d Cir. 1992). Notably, in other tremendous value to the class members in that it would allow

actions whether the Motor Carrier Act affirmative defense or them to avoid bringing separate lawsuits. The putative

a like affirmative defense has been asserted, the assertion of members of the class actually have little incentive to bring

that defense has not precluded Rule 23 certification. See, e.g., actions on their own, particularly given their relative

Aguayo v. Oldenkamp Trucking, 2005 U.S. Dist. LEXIS indigency and the limited size of their claims. See Amchem

22190, No. CV F 04-6279 ASI LJO, 2005 WL 2436477 (E.D. Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S. Ct. 2231,

Cal. Oct. 3, 2005); Scott v. Aetna Servs., Inc., 210 F.R.D. 261 138 L. Ed. 2d 689 (1997) ("The policy at the very core of the

(D. Conn. 2002); Kelley v. SBC, Inc., 1998 U.S. Dist. LEXIS class action mechanism is to overcome the problem that small

18643, No. 97-CV-2729 CW, 1998 WL 928302 (N.D. Cal. recoveries do not provide the incentive for any individual to

Nov. 13, 1998). In any event, should the Court later determine bring a solo action prosecuting his or her rights."). Moreover,

that the affirmative defense predominates over the many many of [*50] the putative class members are geographically

common questions in this case, there are several procedural dispersed, lack proficiency in the English language, and are

mechanisms available to the Court that could sufficiently not familiar with the American legal system. Fourth, while

address that situation. See Smilow, 323 F.3d at 39-40. By way management of a class action might be somewhat difficult

of example, the Court can decertify the class, create a sub- because of the individualized damages determinations that

class of class members to whom the affirmative defense might will be required, the individual damages issues are not

potentially apply, or exclude those class members from the complex enough to preclude class certification. See Haywood

class altogether. In light [*48] of the foregoing, the Court v. Barnes, 109 F.R.D. 568, 583 (E.D.N.C. 1986) ("The fact

concludes that the predominance of the common questions of that the potential amount of damages might vary individually

liability is not negated by any of the issues that might require with the number of violations does not preclude class

individualized determination.

certification where common questions of law and fact as to

2. Superiority

liability clearly predominate. This argument has been rejected time and again by the courts in a multitude of factual

settings."). To satisfy Rule 23(b)(3), it must also be shown that class

treatment is a superior form of relief. The court must evaluate Defendants submit that the FLSA's procedures for a collective whether a class action is superior by examining four factors: action under § 216 offer a superior method of proceeding. (1) the interest of each class member in individually According to Defendants, most of the remedies Plaintiffs

controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). The superiority requirement directs the Court's attention to "the relative advantages of a class action suit over whatever other forms of litigation might be realistically available to the plaintiffs." Klay, 382 F.3d at 1268. "Issues of class manageability encompass the 'whole range of practical problems that may [*49] render the class action format inappropriate for a particular suit.'" Andrews v. American Tel. & Tel., Co., 95 F.3d 1014, 1023 (11th Cir. 1996) (citation omitted).

seek, including minimum wages, overtime pay and reimbursement of visa and transportation costs, are grounded in the FLSA. As such, Defendants argue that the FLSA has its own mandatory procedures for collective actions to which Plaintiffs must adhere [*51] to pursue those claims. Defendants, however, have cited no supporting authority for this position. By contrast, Plaintiffs have cited a persuasive case in which AWPA claims almost identical to the AWPA claims in this case were certified under Rule 23, while a FLSA collective action on different counts was simultaneously certified. See Recinos-Recinos, 233 F.R.D. at 472. Further, Plaintiffs convincingly argue that a § 216 collective action will not adequately address the AWPA claims of the migrant workers. First, while the FLSA claims are governed by a three-year statute of limitations, the AWPA

claims are governed by a six-year statute of Applying the superiority factors mentioned above, the Court

first finds that there is no indication that any member of the

2006 U.S. Dist. LEXIS 73781, *51

Page 12 of 12

limitations. 5 Second, a majority of the members of the

employed in the Defendants' forestry operations from

proposed AWPA class were never identified as eligible for

June 1999 until the present.

distribution of FLSA class-notice under § 216(b). Third,

because the putative class members move frequently and are The Court [*53] hereby CERTIFIES a sub-class as to Count

inaccessible through traditional mail, the opt-in procedure of I of the First Amended Complaint defined as:

§ 216(b) is often unworkable.

all those individuals admitted as H-2B temporary

[*52] Therefore, having considered the four criteria listed in

foreign workers pursuant to 8 U.S.C. §

Rule 23(b)(3) and all arguments presented by the parties, the

1101(a)(15)(H)(ii)(b), who were employed in the

undersigned finds that class treatment is a superior form of

Defendants' forestry operations from January 1, 2003

relief.

until the present who pledged collateral with the

V. CONCLUSION

Defendants agents in order to obtain employment with the Defendants.

For the foregoing reasons, Plaintiffs' Renewed Motion for Certification of Class Action [Doc. No. 63] is GRANTED; Defendants' Motion for Leave to File Memorandum of Law in Surreply to Reply in Support of Plaintiffs' Renewed Motion for Class Certification [Doc. No. 86] is GRANTED; Plaintiffs' Motion for Leave to File Supplemental Brief in Response to Defendants' Letter of June 28, 2006 [Doc. No. 93] is DENIED; and Defendants' Motion for Leave to File Response to Plaintiffs' Supplemental Authority in Support of Its Renewed Motion for Certification of Class Action [Doc. No. 99] is GRANTED as unopposed.
The Court hereby CERTIFIES a class as to Count I of the First Amended Complaint defined as:
all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were

Additionally, pursuant to Federal Rule of Civil Procedure 23(g), the Court APPOINTS the Southern Poverty Law Center as class counsel.
In order to fulfill the requirements of Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure, the Court ORDERS the parties to confer and jointly draft a proposed notice of class certification no later than Monday, October 16, 2006.
The Court will hold a telephone conference in this case on Wednesday, October 23, 2006, at 4:00 pm to discuss the notice of class certification and the Request for International Judicial Assistance.
SO ORDERED this 28th day of September, 2006.
s/ CLARENCE COOPER
UNITED STATES DISTRICT [*54] JUDGE

5 The statute of limitations issue, which the parties have disputed at length in discovery motions, is discussed fully in this Court's discovery order, which is being filed contemporaneously with the instant Order.

 
 Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

_________________________________________

ESCOLASTICO DE LEON-GRANADOS,

)

ISAÍAS PROFETA DE LEON-GRANADOS )

and ARMENIO PABLO-CALMO

)

on behalf of themselves and all

) Case No. 1:05-cv-1473

others similarly situated,

)

)

)

Plaintiffs,

)

) COMPLAINT – CLASS

)

ACTION

v.

)

)

ELLER AND SONS TREES, INC., and

)

JERRY ELLER

)

Defendants.

)

_________________________________________)

PLAINTIFFS’ SECOND AMENDED COMPLAINT PRELIMINARY STATEMENT
1. This action is brought by migrant agricultural workers who were admitted to the United States to work under the H-2B temporary foreign worker visa program. The Plaintiffs have been employed in the forestry operations of the Defendants at various times during the period from June 1999 through the filing of this Complaint. The Plaintiffs seek redress on behalf of themselves and all others

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similarly situated for the Defendants’ violations of their rights under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1871 (1999) (“AWPA”) and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1998) (“FLSA”).
2. This action is brought on behalf of a class of over 3,700 predominantly Guatemalan, Mexican and Honduran migrant workers who planted trees and performed other forestry-related activities for the Defendants. The Plaintiffs and other class members are indigent migrant workers who the Defendants brought to the United States on temporary, H-2B work visas. The Plaintiffs and other class members left their homes and families and spent considerable money and effort to come to the United States to perform arduous jobs, which the Defendants have certified that American workers were not willing to do.
3. Almost all of the Plaintiffs and other class members are non-English speakers who had little, if any, understanding of their legal rights while working in the United States as H-2B forestry workers. The Defendants took full advantage of the Plaintiffs’ and other class members’ indigence, inability to speak or understand English, and their lack of understanding of the laws of the United States to grossly underpay them.
4. The Plaintiffs and many other class members were required by
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Defendants’ agents to leave the deeds to their homes or land in Guatemala with the defendants’ agents in order to obtain employment with the Defendants. These Plaintiffs and other class members were thus particularly vulnerable to coercion and exploitation by the Defendants, as they believed they might lose their property if they failed to comply with the directives of the Defendants.
5. The Plaintiffs seek an award of unpaid wages, an award of money damages and declaratory relief to make them whole for damages they suffered due to the Defendants’ violations of law.
JURISDICTION 6. Jurisdiction is conferred upon this court by 28 U.S.C. § 1331, this case arising under the laws of the United States, 28 U.S.C. § 1337, this action arising under Acts of Congress regulating commerce, 29 U.S.C. § 1854(a), this action arising under the AWPA, and 29 U.S.C. § 216(b), this action arising under the FLSA. 7. The Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
VENUE 8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c) and 29 U.S.C. § 1854(a).
PARTIES 9. At all times relevant to this action, Plaintiffs and the other class members
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were H-2B temporary foreign workers within the meaning of 8 U.S.C. § 1101(a)(15)(H)(ii)(b).
10. At all times relevant to this action, the Plaintiffs and the other class members were migrant agricultural workers within the meaning of 29 U.S.C. § 1802(8)(A), in that they were employed in agricultural employment of a seasonal nature and were required to be absent overnight from their permanent places of residence.
11. Substantial agricultural work was performed by the Plaintiffs and other class members for the Defendants in this state and within this District.
12. At all times relevant to this action, the Plaintiffs and the other class members were engaged in agricultural employment for the Defendants within the meaning of 29 U.S.C. § 1802(3).
13. At all times relevant to this action the Plaintiffs and the other class members were employees of the Defendants within the meaning of 29 U.S.C. § 203(e)(1).
14. At all times relevant to this action, the Plaintiffs and the other class members were employed by the Defendants within the meaning of 29 U.S.C. §203(g).
15. At all times relevant to this action, the Plaintiffs and the other class members were employed by the Defendants in an enterprise engaged in commerce or
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the production of goods for commerce. 16. Defendant Eller and Sons Trees, Inc. is a Georgia corporation which
conducts business in this District. 17. At all times relevant to this action Defendant Eller and Sons Trees, Inc.
was an agricultural employer within the meaning of 29 U.S.C. § 1802(2). 18. At all times relevant to this action, Defendant Eller and Sons Trees, Inc.
employed the Plaintiffs and the other class members within the meaning of 29 U.S.C. § 1802(5) and 29 U.S.C. § 203(g).
19. Defendant Jerry Eller is an individual resident of Montana who conducted significant business in this District. Defendant Jerry Eller had significant contacts with the state of Georgia and this District such that jurisdiction and venue are proper in this Court.
20. At all times relevant to this action, Defendant Jerry Eller employed the Plaintiffs and the other class members within the meaning of 29 U.S.C. § 1802(5) and 29 U.S.C. § 203(g).
STATEMENT OF FACTS 21. The Defendants operate a tree-planting service, in which they bid on and negotiate contracts to plant trees on land owned by other individuals and companies. To fill the manpower requirements of their contracts, the Defendants sought
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importation of foreign nationals to perform forestry work on a seasonal or temporary basis, in accordance with the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(b).
22. The Plaintiffs and the other members of the class were admitted to the United States to be employed as members of labor crews organized by the Defendants. Each of the Plaintiffs and the other class members was issued a temporary visa, commonly referred to as an “H-2B visa,” as authorized by 8 U.S.C. § 1101(a)(15)(H)(ii)(b), its attendant regulations, 8 C.F.R. § 214.2(h)(6), 20 C.F.R. § 655.3, and administrative letters and/or guidance. The Plaintiffs and the other class members were admitted to the United States and were employed by the Defendants.
23. The Plaintiffs and other class members spent considerable sums of money to process their H-2B work visas and travel from their home villages to the United States. These costs were incurred by the Plaintiffs and other class members for the primary benefit of their Defendant employers.
24. In addition, as a condition of being hired, the Plaintiffs and many other class members were required to leave collateral, in the form of the deed to their land, with the Defendants’ agents in Guatemala. The Plaintiffs and other class members were required to leave this deed with Defendants’ agents so that the Defendants could be assured that the workers would remain under the control of and in the employ of
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 7 of 19
the Defendants. The requirement that Plaintiffs leave their deeds had an extremely coercive effect upon the Plaintiffs and other class members. The Defendants have not returned these documents to Plaintiff Armenio Pablo-Calmo, nor to many other class members.
25. As a condition of obtaining H-2B visas for the Plaintiffs and the other class members, the Defendants certified to the United States Department of Labor that, inter alia, the wages paid the Plaintiffs and other class members would equal or exceed the applicable prevailing wage, that the jobs offered would be full-time jobs of 40 hours per week, and that the job would not contravene Federal, State, or local law, including applicable requirements of the H-2B program, as set out in Department of Labor regulations and administrative interpretations.
26. When the Defendants provided information to the Plaintiffs regarding work hours and manner of compensation, the information provided was false and misleading.
27. The Defendants did not issue accurate and complete records regarding the employment of the Plaintiffs and other class members. The records the Defendants kept of the Plaintiffs’ work were inadequate, inaccurate, false and misleading.
28. The Plaintiffs and other class members performed arduous tree planting
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 8 of 19
and associated forestry work for the Defendants in Georgia and other states. They regularly worked far in excess of 40 hours in a given workweek.
29. The Defendants failed to pay the Plaintiffs and the other members of the class the minimum wage for all the work they performed.
30. The Defendants failed to pay the Plaintiffs and the other members of the class the proper prevailing wage for all the work they performed.
31. The Defendants failed to pay the Plaintiffs and the other members of the class overtime wages for all work they performed in excess of forty (40) hours in a given workweek.
CLASS ACTION ALLEGATIONS 32. All claims set forth in Count I are brought by the Plaintiffs on behalf of themselves and all other similarly situated persons pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. 33. The named Plaintiffs seek to represent a class consisting of all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in the Defendants’ forestry operations from June 1999 until the present. 34. The number of individuals in the class exceeds 3,700. The class is comprised principally of indigent migrant farmworkers who maintain their residences in locations throughout Guatemala, Mexico and Honduras. The class members are not
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 9 of 19
fluent in the English language. Indeed, many of the class members speak indigenous Mayan languages as their primary language, and speak Spanish as a second language, with varying degrees of proficiency. The relatively small size of the individual claims, the geographical dispersion of the class, and the indigency of the class members makes the maintenance of separate actions by each class member economically infeasible. Joinder of all class members is impracticable.
35. There are questions of fact and law common to the class. These common questions include whether the Defendants failed to pay the named Plaintiffs and other class members prevailing and overtime wages promptly when due, as required by law and their employment contracts; whether Defendants failed to maintain complete and accurate records regarding the Plaintiffs’ and the class members’ work; whether the Defendants failed to provide the Plaintiffs and the class members with complete and accurate wage statements; whether the failure of the Defendants to pay the Plaintiffs and the class members the prevailing wage and overtime pay as required by the H-2B temporary foreign labor program violated the AWPA’s wage payment and working arrangement provisions; whether the Defendants’ failure to pay the class members for at least 40 hours of work each week violated the AWPA’s wage payment and working arrangement provisions; and whether the Defendants’ failure to maintain complete and accurate records regarding the work of the Plaintiffs and the class members, and
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Defendants’ failure to provide the named Plaintiffs and the class members with complete and accurate wage statements, were violations of the AWPA.
36. The claims of the named Plaintiffs are typical of the class, and these typical, common claims predominate over any questions affecting only individual class members. The named Plaintiffs have the same interests as do the other members of the class and will vigorously prosecute these interests on behalf of the class.
37. Counsel for the Plaintiffs have handled numerous AWPA and FLSA actions in the federal courts. They are prepared to advance litigation costs necessary to vigorously litigate this action.
38. A class action under Rule 23(b)(3) is superior to other available methods of adjudicating this controversy because, inter alia:
• The common issues of law and fact, as well as the relatively small size of the individual class members’ claims, substantially diminish the interest of members of the class in individually controlling the prosecution of separate actions;
• Many members of the class are unaware of their rights to prosecute these claims and lack the means or resources to secure legal assistance;
• There has been no litigation already commenced against the
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Defendants by the members of the class to determine the questions presented; • It is desirable that the claims be heard in this forum since the Defendants have significant contacts with this District; and • A class action can be managed without undue difficulty since the Defendants have regularly committed the violations complained of herein, and are required to maintain detailed records concerning each member of the class.
COUNT I MIGRANT AND SEASONAL AGRICULTURAL
WORKER PROTECTION ACT (CLASS ACTION)
39. This count sets forth a claim by the Plaintiffs and the other members of the class for money damages and declaratory relief, with respect to the Defendants’ violations of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”).
40. The Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 38 above.
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COUNT I(A): WORKING ARRANGEMENT VIOLATIONS AND FAILURE TO PAY WAGES WHEN DUE
41. The certifications described in paragraph 25 above constituted a working arrangement between the Defendants and the Plaintiffs and other class members within the meaning of the AWPA, 29 U.S.C. § 1822(c), and its attendant regulations, 29 C.F.R. § 500.72.
42. The Defendants failed to pay the Plaintiffs and the other members of the class the proper prevailing wage for all the work they performed in their first weeks of work in each season.
43. The violation of the AWPA as set out in paragraph 42, resulted in part from the Defendants’ failure to reimburse the Plaintiffs and the other members of the class for expenses they incurred which were primarily for the benefit of the Defendants, as well as from the Defendants’ unlawful withholdings and deductions from the wages of the Plaintiffs and the other class members. These unreimbursed expenses and deductions from wages unlawfully reduced Plaintiffs’ and other class members’ wages paid for their first week of work in each season, below the prevailing wage rate.
44. The Defendants, who were obligated to offer full time employment to the Plaintiffs and other class members, consistently failed to pay workers for at least 40 hours of work each week.
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45. By their actions as described in paragraphs 42, 43 and 44, the Defendants violated without justification their working arrangement with the Plaintiffs and the other members of the class, thereby violating the AWPA, 29 U.S.C. § 1822(c), and its attendant regulations, 29 C.F.R. § 500.72.
46. By their actions as described in paragraphs 42, 43 and 44 the Defendants failed to pay the Plaintiffs and other members of the class their wages owed promptly when due, thereby violating the AWPA, 29 U.S.C. § 1822(a), and its attendant regulations, 29 C.F.R. § 500.81.
COUNT I(B): RECORDKEEPING VIOLATIONS 47. The Defendants failed to make, keep, and preserve accurate and complete records regarding the Plaintiffs’ and the other class members’ employment, in violation of the AWPA, 29 U.S.C. § 1821(d)(1), and its attendant regulations, 29 C.F.R. § 500.80(a). 48. The Defendants failed to provide the Plaintiffs and the other class members complete and accurate itemized written statements for each pay period containing the required information, in violation of the AWPA, 29 U.S.C. § 1821(d)(2), and its attendant regulations, 29 C.F.R. § 500.80(d). 49. The violations of the AWPA and its attendant regulations as set forth in Count I were the natural consequences of the conscious and deliberate actions of the Defendants and were intentional within the meaning of the AWPA, 29 U.S.C. §
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1854(c)(1). 50. As a result of the Defendants’ violations of the AWPA and its attendant
regulations as set forth in this count, the Plaintiffs and the other members of the class have suffered damages.
COUNT II FAIR LABOR STANDARDS ACT
(COLLECTIVE ACTION) 51. This count sets forth a claim for declaratory relief and damages for the Defendants’ violations of the minimum wage provisions of the Fair Labor Standards Act (“FLSA”). This count is brought by the Plaintiffs on behalf of themselves and other current or former H-2B temporary foreign workers employed by the Defendants who are similarly situated. 52. The Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 31 above. 53. Pursuant to 29 U.S.C. § 216(b), representative Plaintiffs Escolastico De Leon-Granados, Isaías Profeta De Leon-Granados and Armenio Pablo-Calmo have consented in writing to be party plaintiffs in this FLSA action. Their written consents were attached to the Plaintiffs’ original complaint. 54. The Defendants violated 29 U.S.C. § 206(a) by failing to pay each of the
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Plaintiffs and others similarly situated the applicable minimum wage for every compensable hour of labor they performed.
55. The violations of the FLSA set out in paragraph 54 resulted, in part, from the Defendants’ failure to reimburse the Plaintiffs and others similarly situated for expenses they incurred which were primarily for the benefit of the Defendants. These unreimbursed expenses unlawfully reduced the wages paid Plaintiffs for their first week of work in each season below the FLSA minimum wage rate.
66. The violations of the FLSA set out in paragraph 55 resulted, in part, from the Defendants’ unlawful withholdings and deductions from the wages of the Plaintiffs and others similarly situated. These deductions unlawfully reduced the wages paid Plaintiffs for their first week of work in each season below the FLSA minimum wage rate.
67. The Defendants’ failures to pay the Plaintiffs and others similarly situated their federally mandated minimum wages were willful violations of the FLSA within the meaning of 29 U.S.C. § 255(a).
68. As a consequence of the Defendants’ violation of the FLSA, the Plaintiffs and others similarly situated are entitled to recover their unpaid minimum and overtime wages, plus an additional equal amount in liquidated damages, costs of suit, and reasonable attorneys’ fees pursuant to 29 U.S.C. § 216(b).
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 16 of 19
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court will enter an order: 1. Certifying this case as a class action in accordance with Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to the claims set forth in Count I; 2. With respect to the claims set forth in Count II, permitting this case to proceed as a collective action; 3. Declaring that the Defendants intentionally violated the Migrant and Seasonal Agricultural Worker Protection Act and its attendant regulations, as set forth in Count I; 4. Declaring that the Defendants willfully violated the minimum wage provisions of the Fair Labor Standards Act, as set forth in Count II; 5. Granting judgment in favor of the Plaintiffs and the other class members and against the Defendants, jointly and severally, on these Plaintiffs’ and other class members’ claims under the AWPA as set forth in Count I; 6. Awarding each of the Plaintiffs and the other class members actual damages for each violation of the two AWPA violations set forth in Count I(A); 7. Awarding each of the Plaintiffs and the other class members statutory damages for each of the two AWPA violations set forth in Count I(B); 8. Granting judgment in favor of the Plaintiffs and all others similarly situated and against the Defendants, jointly and severally, on their claims under the
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 17 of 19
Fair Labor Standards Act as set forth in Count II and awarding each of these Plaintiffs
and all other similarly situated individuals who opt-in to this action his unpaid
minimum wages and an equal amount in liquidated damages;
9. Awarding the Plaintiffs the costs of this action;
10. Awarding the Plaintiffs reasonable attorneys’ fees with respect to their
Fair Labor Standards Act claims; and
11. Granting such further relief as is just and equitable.
Respectfully submitted this 22nd day of July, 2010
s/ James M. Knoepp State Bar of Georgia No. 366241 Immigrant Justice Project Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA 30303 phone: (404) 221-5836 fax: (404) 221-5857 jim.knoepp@splcenter.org
Brian Spears State Bar of Georgia No. 670112 1126 Ponce de Leon Avenue Atlanta, Georgia 30306 404-872-7086 e-mail: bspears@mindspring.com
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 18 of 19
Mary C. Bauer Virginia Bar Number 31388 e-mail: mbauer@splcenter.org Andrew Turner Virginia Bar Number 48853 e-mail: aturner@splcenter.org Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 334-956-8200 334-956-8481 (fax)
Tim A. Freilich Virginia Bar Number 44077 e-mail: tim@justice4all.org Erin M. Trodden Virginia Bar Number 71515 Alex R. Gulotta Virginia Bar Number 37097 Legal Aid Justice Center 1000 Preston Avenue, Suite A Charlottesville, VA 22903 434-977-0553 434-977-0558 (fax) e-mail: alex@justice4all.org
Attorneys for Plaintiffs
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Case 1:05-cv-01473-CC Document 389-2 Filed 07/22/10 Page 19 of 19
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this date electronically filed the foregoing Plaintiffs’ Second Amended Complaint with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification to the following attorneys for the Defendants:
J. Larry Stine, Esq. Elizabeth K. Dorminey, Esq. Paul Oliver, Esq. Wimberly, Lawson, Steckel & Schneider, P.C. 3400 Peachtree Rd. N.E., Suite 400 Atlanta, GA 30326 (404)-365-0900 jls@wimlaw.com bdorminy@bellsouth.net po@wimlaw.com
This 22nd day of July, 2010.
s/ James M. Knoepp
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 Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 1 of 40
8months,CLASS,CLOSED,PROTO
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:05−cv−01473−CC

De Leon−Granados et al v. Eller and Sons Trees, Inc. et al Assigned to: Judge Clarence Cooper Case in other court: USCA, 06−15876−CC Cause: 29:216(b) Labor − Minimum wage or overtime compensation
Plaintiff

Date Filed: 06/06/2005 Date Terminated: 10/29/2012 Jury Demand: Defendant Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Escolastico De Leon−Granados

represented by Alex R. Gulotta Legal Aid Justice Center Suite A 1000 Preston Avenue Charlottesville, VA 22903 434−977−0553 Email: alex@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner Southern Poverty Law Center−AL 400 Washington Avenue Montgomery, AL 36104 334−956−8326 Email: andrew.turner@splcenter.org LEAD ATTORNEY PRO HAC VICE

Erin Trodden Virginia Justice Center for Farm and Immigrant Workers 1000 Preston Ave. Suite A Charlottesville, VA 22903 434−977−0553 Email: erin@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears Law Office of Brian Spears 1126 Ponce de Leon Avenue Atlanta, GA 30306 404−872−7086 Fax: 404−892−1128 Email: Bspears@mindspring.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp Southern Poverty Law Center−Atl Suite 2150 233 Peachtree Street, NE Atlanta, GA 30303 404−221−5836 Email: jim.knoepp@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 2 of 40

Southern Poverty Law Center−Atl Suite 2150 233 Peachtree Street, NE Atlanta, GA 30303 334−956−8200 Email: kbruner@splcenter.org LEAD ATTORNEY

Mary C. Bauer Southern Poverty Law Center−AL 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Email: mbauer@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich Virginia Justice Center for Farm and Immigrant Workers Suite 520 6066 Leesburg Pike Falls Church, VA 22041 703−778−3450 Email: tim@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Rene Villatoro− De Leon

represented by Alex R. Gulotta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 3 of 40

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Margarito Recinos−Villatoro TERMINATED: 03/28/2006

represented by Alex R. Gulotta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Isaias Profeta De Leon−Granados

represented by Alex R. Gulotta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 4 of 40

Plaintiff Armenio Pablo−Calmo on behalf of themselves and all others similarly situated
Plaintiff Osmar Osiel De Leon−Lucas

Kelley Bruner (See above for address) LEAD ATTORNEY
Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alex R. Gulotta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE
Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelley Bruner (See above for address) LEAD ATTORNEY
Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Brian Spears (See above for address) LEAD ATTORNEY

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 5 of 40

ATTORNEY TO BE NOTICED

Plaintiff Nelson Ignacio Hernandez−Lopez

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marcial Sales−Diaz

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Samual Eduardo Tecun

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Alberto Diaz−Diaz

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 6 of 40

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jose Ruiz−Rodriguez

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Juan Aguilar−Vasquez

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 7 of 40

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Aureliano Rivas−Lucas

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Melvin Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sergio Roldan

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 8 of 40

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address)

Plaintiff Alejandro Luis−Morales

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jose Maria Tomas−Recinos

represented by Andrew H. Turner (See above for address) LEAD ATTORNEY PRO HAC VICE

Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelley Bruner (See above for address) LEAD ATTORNEY

Mary C. Bauer

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 9 of 40

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tim A. Freilich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Herman Osbeli Recinos−Martinez TERMINATED: 12/13/2005

represented by Herman Osbeli Recinos−Martinez PRO SE

Plaintiff Ruben Perez−Lucas

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rosanio Concepcion−Matias TERMINATED: 03/27/2007

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Felix Morales−Antonio

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Protasio Burgos−Maldonado

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cristian Emilio Lucano Gutierrez

represented by Erin Trodden (See above for address) LEAD ATTORNEY

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 10 of 40

ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Agustin Soto Rios

represented by Erin Trodden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Brian Spears (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Eller and Sons Trees, Inc.
Defendant Jerry Eller

represented by James Larry Stine Wimberly, Lawson, Steckel, Schneider &Stine, P.C. Lenox Towers, Suite 400 3400 Peachtree Road, NE Atlanta, GA 30326−1107 404−365−0900 Email: jls@wimlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Oliver Wimberly Lawson Steckel Schneider &Stine, PC 3400 Peachtree Road, N.E. Suite 400, Lenox Towers Atlanta, GA 30326−1107 404−365−0900 Email: po@wimlaw.com
represented by James Larry Stine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Oliver (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/06/2005
06/06/2005

# Docket Text
1 COMPLAINT filed and summon(s) issued. Consent form to proceed before U.S. Magistrate and pretrial instructions given to attorney ( Filing fee $ 250 receipt number 537844.), filed by Armenio Pablo−Calmo, Escolastico De Leon−Granados, Rene Villatoro− De Leon, Margarito Recinos−Villatoro, Isaias Profeta De Leon−Granados. (Attachments: # 1 Summons)(fkt) (Entered: 06/09/2005)
2 APPLICATION for Admission of Andrew H. Turner Pro Hac Viceby Armenio Pablo−Calmo, Escolastico De Leon−Granados, Rene Villatoro− De Leon, Margarito Recinos−Villatoro, Isaias Profeta De Leon−Granados.Filing Fee

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 11 of 40

06/06/2005
06/17/2005
06/17/2005 06/23/2005 06/23/2005 06/28/2005 06/29/2005 07/01/2005 07/08/2005 07/11/2005 07/15/2005 07/18/2005 07/22/2005 07/27/2005 07/27/2005

received $150.00, Receipt #537846. (Attachments: # 1 Proposed Order)(vs) (Entered: 06/09/2005)
3 APPLICATION for Admission of Kelley Bruner, Alex R. Gulotta, Tim A. Freilich, Mary C. Bauer, James M. Knoepp Pro Hac Viceby Armenio Pablo−Calmo, Escolastico De Leon−Granados, Rene Villatoro− De Leon, Margarito Recinos−Villatoro, Isaias Profeta De Leon−Granados.Filing Fee received $750.00, Receipt #537847. (Attachments: # 1 Proposed Order Knoepp # 2 Proposed Order Bauer # 3 Proposed Order Freilich # 4 Proposed Order Gulotta # 5 Proposed Order Bruner)(vs) (Entered: 06/09/2005)
4 ORDER granting 3 Application for Admission Pro Hac Vice Kelley Bruner, Alex R. Gulotta, Tim A. Freilich, Mary C. Bauer, James M. Knoepp Pro Hac Vice by Armenio Pablo−Calmo, Escolastico De Leon−Granados, Rene Villatoro− De Leon, Margarito Recinos−Villatoro, Isaias Profeta De Leon−Granados.. Signed by Judge Clarence Cooper on 6/17/05. (vs) (Entered: 06/21/2005)
5 ORDER granting 2 Application for Admission Pro Hac Vice of Andrew H. Turner by Armenio Pablo−Calmo, Escolastico De Leon−Granados, Rene Villatoro− De Leon, Margarito Recinos−Villatoro, Isaias Profeta De Leon−Granados. Signed by Judge Clarence Cooper on 6/17/05. (vs) (Entered: 06/21/2005)
6 Return of Service Executed by Escolastico De Leon−Granados. Eller and Sons Trees, Inc. served on 6/8/2005, answer due 6/28/2005. (Spears, George) (Entered: 06/23/2005)
7 Return of Service Executed by Escolastico De Leon−Granados. Jerry Eller served on 6/13/2005, answer due 7/5/2005. (Spears, George) (Entered: 06/23/2005)
8 ANSWER to Complaint with Jury Demand by Eller and Sons Trees, Inc., Jerry Eller. Discovery ends on 11/25/2005.(Stine, James) (Entered: 06/28/2005)
9 MOTION for Order Certification of Class Action with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Spears, George) (Entered: 06/29/2005)
10 CERTIFICATE of Counsel Formatting Compliance by George Brian Spears on behalf of all plaintiffs (Spears, George) (Entered: 07/01/2005)
11 STATUS REPORT Joint Statement Regarding Restrictions on Class Communications by Escolastico De Leon−Granados. (Spears, George) (Entered: 07/08/2005)
12 RESPONSE in Opposition re 9 MOTION for Order Certification of Class Action By Plaintiff filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 07/11/2005)
13 PRELIMINARY REPORT AND DISCOVERY SCHEDULE filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 07/15/2005)
14 NOTICE Of Filing Consent to Join FLSA Collective Action by Escolastico De Leon−Granados (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 )(Spears, George) Modified on 7/25/2005 (vs). (Entered: 07/18/2005)
15 NOTICE to Take Deposition of Escolastico De Leon−Granados, Rene Villatoro−De Leon, Margarito Recinso−Villatoro, Isias Profeta De Leon−Granados and Amrenio Pablo−Calmo filed by Eller and Sons Trees, Inc., Jerry Eller (Stine, James) (Entered: 07/22/2005)
16 Initial Disclosures by Eller and Sons Trees, Inc., Jerry Eller.(Stine, James) (Entered: 07/27/2005)
17 MOTION to Certify Class Certificate of Collective Action with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Errata 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Errata 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Errata 15# 17 Exhibit 16# 18 Exhibit 17)(Spears, George) (Entered: 07/27/2005)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 12 of 40

07/27/2005 07/28/2005 07/28/2005
07/28/2005 07/28/2005 08/03/2005
08/04/2005 08/15/2005
08/26/2005 08/26/2005 08/30/2005 09/01/2005
09/06/2005 09/06/2005 09/07/2005

18 RESPONSE in Support re 9 MOTION to Certify Class Certificate of Collective Action filed by Escolastico De Leon−Granados. (Spears, George) Modified on 10/11/2005 (vs). (Entered: 07/27/2005)
19 Notice of Filing (Exhibit 18) re Motion to to Certify Class Certificate of Collective Action (Spears, George) Modified on 7/28/2005 to correct text (vs). (Entered: 07/28/2005)
20 REPLY BRIEF re 9 MOTION to Certify Class Certificate of Collective Action filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18)(Spears, George) Modified on 10/11/2005 (vs). (Entered: 07/28/2005)
21 Initial Disclosures by Escolastico De Leon−Granados.(Spears, George) (Entered: 07/28/2005)
22 CERTIFICATE of Counsel Service of Discovery Materials by George Brian Spears on behalf of all plaintiffs (Spears, George) (Entered: 07/28/2005)
Submission of 17 MOTION to Certify Class Certificate of Collective Action, 18 Response in Support of Motion, 19 MOTION to Certify Class Certificate of Collective Action (Exhibit 18), 20 Reply Brief,, 9 MOTION for Order Certification of Class Action, 12 Response in Opposition to Motion, submitted to District Judge Clarence Cooper. (vs) (Entered: 08/03/2005)
23 Amended NOTICE to Take Deposition of Escolastico De Leon−Granados, Rene Villatoro−De Leon, Margarito Recinso−Villatoro, Isias Profeta De Leon−Granados and Amrenio Pablo−Calmo filed by Eller and Sons Trees, Inc., Jerry Eller (Stine, James) (Entered: 08/04/2005)
24 RESPONSE re 17 MOTION to Certify Class Certificate of Collective Action, 19 MOTION to Certify Class Certificate of Collective Action (Exhibit 18), 9 MOTION for Order Certification of Class Action Defendant's Response To Plaintiff's Motion For Certification Of Collective Action filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Exhibit 1A−Court's Order# 2 Exhibit 1B − Spanish# 3 Exhibit 2 − Court's Notice)(Stine, James) (Entered: 08/15/2005)
25 NOTICE by Escolastico De Leon−Granados Filing Consents to Join (Attachments: # 1 Exhibit Omar Consent# 2 Exhibit Samuel# 3 Exhibit Nelson# 4 Exhibit Marcial)(Spears, George) (Entered: 08/26/2005)
26 Amended Initial Disclosures by Escolastico De Leon−Granados.(Spears, George) (Entered: 08/26/2005)
27 for Leave of Absence for the following date(s): 9/23/05−9/26/05, 10/7/05 − 10/10/05, 10/27/05 − 10/30/05, 11/23/05 − 11/28/05, 12/23/05 − 12/31/05, by George Brian Spears. (Spears, George) (Entered: 08/30/2005)
28 REPLY BRIEF re 17 MOTION to Certify Class Certificate of Collective Action, 19 MOTION to Certify Class Certificate of Collective Action (Exhibit 18) filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Proposed Notice# 2 Exhibit Plaintiffs' Proposed Consent−to−Sue Form# 3 Affidavit Declaration of Cathleen Caron# 4 Exhibit Vergara−Perdomo v. Wendell Roberson, Inc.# 5 Exhibit Reyes v. Mongiello)(Bauer, Mary) (Entered: 09/01/2005)
29 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendant's First and Partial Response To Plaintiffs' First Request For Production of Documents To Defendant Eller &Sons Trees, Inc. (Stine, James) (Entered: 09/06/2005)
30 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' First and Partial Response To Plaintiff Escolastico De Leon−Granados' First Interrogatories (Stine, James) (Entered: 09/06/2005)
31 NOTICE Of Filing Plaintiffs' Third Notice of Filing FLSA Consent−to−Sue Forms by Escolastico De Leon−Granados (Attachments: # 1 Consent− to−Sue Form of Alberto Diaz−Diaz# 2 Consent−to−Sue Form of Aureliano Rivas−Lucas# 3

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 13 of 40

09/08/2005 09/19/2005 09/19/2005 09/21/2005 10/11/2005 10/11/2005
10/11/2005
10/12/2005
10/14/2005 10/14/2005 10/18/2005 10/18/2005 10/18/2005 10/20/2005

Consent−to−Sue Form of Juan Aguilar−Vasquez# 4 Consent−to−Sue Form of Jose Ruiz−Rodriguez)(Bauer, Mary) (Entered: 09/07/2005)
32 NOTICE Of Filing Plaintiffs' Fourth Notice of Filing Consents to Join FLSA Collective Action by Escolastico De Leon−Granados (Attachments: # 1 Consent−to−Sue Form of Hermelindo Jesus Castillo# 2 Consent−to−Sue Form of Marvin Vallardo Castillo)(Bauer, Mary) (Entered: 09/08/2005)
33 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller for Defendants' REsponse to Plaintiff Escolastico De Leon−Granados' First Interrogatories (Stine, James) (Entered: 09/19/2005)
34 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' Response to Plaintiffs' First Request for Production of Documents to Defendant (Stine, James) (Entered: 09/19/2005)
35 NOTICE of Hearing:Scheduling Conference set for 10/12/2005 04:00 PM before Judge Clarence Cooper. (pds) (Entered: 09/21/2005)
36 NOTICE Of Filing FLSA opt−ins by Escolastico De Leon−Granados et. al. (Attachments: # 1 Exhibit Jose Maria Tomas−Recinos FLSA Consent to Sue# 2 Exhibit Sergio Roldan FLSA Consent to Sue# 3 Exhibit Alejandro Luis Morales FLSA Consent to Sue)(Bauer, Mary) (Entered: 10/11/2005)
37 First MOTION to Compel Production of Documents with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law In Support of Plaintiff's Motion to Compel Production of Documents# 2 Exhibit Plaintiffs' Exhibit 24# 3 Exhibit Plaintiffs' Exhibit 25# 4 Exhibit Plaintiffs' Exhibit 26)(Bauer, Mary) (Entered: 10/11/2005)
38 First MOTION to Compel Responses to Interrogatories with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law In Support of Plaintiff's Motion to Compel Responses to Interrogatories# 2 Exhibit Plaintiffs' Exhibit 17# 3 Exhibit Plaintiffs' Exhibit 24# 4 Exhibit Plaintiffs' Exhibit 25# 5 Exhibit Plaintiffs' Exhibit 26)(Bauer, Mary) (Entered: 10/12/2005)
41 Minute Entry for proceedings held before Judge Clarence Cooper : Scheduling Conference held on 10/12/2005. Hrg on motion for class certification. Court denied w/o prejudice motion for class certification to allow parties to conduct discovery regarding certification issues. Court granted plas' motion for preliminary certification of collective action and for disclosure of names, addresses &phone numbers of potential Opt−In plas. Discovery track changed to 8 month. Cnsl to prepare order. (Court Reporter Amanda Lohnaas.)(vs) (Entered: 10/17/2005)
39 MOTION for Leave to File Excess Pages by Escolastico De Leon−Granados. (Spears, George) (Entered: 10/14/2005)
40 MOTION for Leave to File Excess Pages by Escolastico De Leon−Granados. (Attachments: # 1Proposed Order )(Spears, George) Modified on 10/17/2005 (vs). (Entered: 10/14/2005)
42 NOTICE by Eller and Sons Trees, Inc., Jerry Eller of Submission of Names, Last Known Addresses, and Telephone Numbers (Stine, James) (Entered: 10/18/2005)
43 ORDER denying 9 Motion for Order Certification of Class Action, granting 17 Motion for Preliminary Certification of Collective Action and for Disclosure of the Names, Addresses and Telephone Number of Potential Opt−In Plas. Signed by Judge Clarence Cooper on 10/18/05. (vs) (Entered: 10/19/2005)
44 ORDER granting 40 Motion for Leave to File Excess Pages . Signed by Judge Clarence Cooper on 10/18/05. (vs) (Entered: 10/19/2005)
45 ORDER re 13 Preliminary Report and Discovery Schedule filed by Jerry Eller,, Eller and Sons Trees, Inc., The discovery period is herby extended for an additional four months. Discovery ends on 3/25/2005. Signed by Judge Clarence Cooper on 10/20/05. (vs) (Entered: 10/24/2005)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 14 of 40

10/24/2005 10/25/2005 10/26/2005 10/28/2005 10/31/2005
11/10/2005
11/11/2005 12/12/2005 12/14/2005 12/21/2005 01/06/2006 01/11/2006 01/16/2006 01/17/2006 01/24/2006 01/24/2006 01/25/2006 01/29/2006

48 TRANSCRIPT of Proceedings held on 10/12/05 before Judge Clarence Cooper. Court Reporter: Amanda Lohnaas. (vs) (Entered: 10/27/2005)
46 RESPONSE in Opposition re 37 First MOTION to Compel Production of Documents filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Exhibit Sample Score Sheet)(Stine, James) (Entered: 10/25/2005)
47 RESPONSE in Opposition re 38 First MOTION to Compel Responses to Interrogatories filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 10/26/2005)
49 TRANSCRIPT of Proceedings held on 10/12/05 before Judge Clarence Cooper. Court Reporter: Amanda Lohnaas. (vs) (Entered: 11/01/2005)
Submission of 46 Response in Opposition to Motion, 47 Response in Opposition to Motion, 37 First MOTION to Compel Production of Documents, 38 First MOTION to Compel Responses to Interrogatories, submitted to District Judge Clarence Cooper. (vs) (Entered: 10/31/2005)
50 REPLY BRIEF re 37 First MOTION to Compel Production of Documents filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 27# 2 Exhibit Plaintiffs' Exhibit 28# 3 Exhibit Plainitffs' Exhibit 29)(Spears, George) (Entered: 11/10/2005)
51 REPLY BRIEF re 38 First MOTION to Compel Responses to Interrogatories filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 27# 2 Exhibit Plaintiffs' Exhibit 28)(Spears, George) (Entered: 11/11/2005)
52 NOTICE by Herman Osbeli Recinos−Martinez Filing Withdrawal of Consent to Sue Form (Attachments: # 1 Affidavit Affidavit of Herman Osbeli Recinos Martinez)(Spears, George) (Entered: 12/12/2005)
53 NOTICE Of Filing by Escolastico De Leon−Granados (Attachments: # 1 FLSA Consent to Sue Form Ruben Perez−Lucas# 2 FLSA Consent to Sue Form Rosanio Concepcion−Matias)(Spears, George) (Entered: 12/14/2005)
54 NOTICE Of Filing by Escolastico De Leon−Granados (Attachments: # 1 Felix Morales−Antonio FLSA Consent−to−Sue Form)(Spears, George) (Entered: 12/21/2005)
55 OBJECTION to Plainitffs' Notice of Depositions for 30(b)(6) Deposition filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/06/2006)
56 Notice for Leave of Absence for the following date(s): 2/18−2/19/06, 3/28−4/3/06, 5/25−5/28/06, 6/22−6/25/06, 7/14−7/19/06, 10/11−10/16/06, by George Brian Spears. (Spears, George) Modified on 1/12/2006 (vs). (Entered: 01/11/2006)
57 Notice of Leave of Absence, by George Brian Spears. (Spears, George) (Entered: 01/16/2006)
58 CERTIFICATE OF SERVICE for Defendant's Response to No. 55−61 of Plaintiff's First Request for Admissions to Defendants by Eller and Sons Trees, Inc., Jerry Eller.(Stine, James) (Entered: 01/17/2006)
59 NOTICE Of Filing by Escolastico De Leon−Granados Notice of Filing Consent to Join FLSA Collective Action (Attachments: # 1 Consent to Sue Form of Protasio Burgos−Maldonado)(Spears, George) (Entered: 01/24/2006)
60 CERTIFICATE OF SERVICE of Defendants' REsponse to No. 1−54 of Plaintiffs' First Request for Admissions to Defendants by Eller and Sons Trees, Inc., Jerry Eller.(Stine, James) (Entered: 01/24/2006)
61 NOTICE Of Filing by Margarito Recinos−Villatoro Notice of Withdrawal (Attachments: # 1 Affidavit Second Affidavit of Margarito Recinos−Villatoro)(Spears, George) (Entered: 01/25/2006)
62 Second MOTION for Leave to File Excess Pages by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/29/2006)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 15 of 40

01/31/2006 02/02/2006
02/02/2006 02/02/2006 02/02/2006
02/02/2006 02/07/2006 02/07/2006 02/09/2006 02/10/2006 02/14/2006 02/14/2006

63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Memorandum of Law Supporting Plaintiffs' Renewed Motion for Certification of Class Action)(Spears, George) (Entered: 01/31/2006)
64 NOTICE Of Filing Plaintiffs' Renewed Motion for Certification of Class Action by Escolastico De Leon−Granados re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action Exhibits 30−35d (Attachments: # 1 Exhibit Plaintiffs' Exhibit 30# 2 Exhibit Plaintiffs' Exhibit 31# 3 Exhibit Plaintiffs' Exhibit 32a# 4 Exhibit Plaintiffs' Exhibit 32b# 5 Exhibit Plaintiffs' Exhibit 33a# 6 Exhibit Plaintiffs' Exhibit 33b1# 7 Exhibit Plaintiffs' Exhibit 33b2# 8 Exhibit Plaintiffs' Exhibit 34# 9 Exhibit Plaintiffs' Exhibit 35a# 10 Exhibit Plaintiffs' Exhibit 35b# 11 Exhibit Plaintiffs' Exhibit 35c# 12 Exhibit Plaintiffs' Exhibit 35d)(Spears, George) (Entered: 02/02/2006)
65 NOTICE Of Filing by Escolastico De Leon−Granados re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action Plaintiffs' Exhibits 36−40 (Attachments: # 1 Plaintiffs' Exhibit 36# 2 Plaintiffs' Exhibit 37# 3 Plaintiffs' Exhibit 38# 4 Plaintiffs' Exhibit 39# 5 Plaintiffs' Exhibit 40)(Spears, George) Modified on 2/6/2006 to correct duplicate wording(vs). (Entered: 02/02/2006)
66 NOTICE Of Filing by Escolastico De Leon−Granados re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action Plaintiffs' Exhibits 41−45 (Attachments: # 1 Exhibit Plaintiffs' Exhibit 41# 2 Exhibit Plaintiffs' Exhibit 42# 3 Exhibit Plaintiffs' Exhibit 43# 4 Exhibit Plaintiffs' Exhibit 44# 5 Exhibit Plaintiff's Exhibit 45)(Spears, George) (Entered: 02/02/2006)
67 NOTICE Of Filing by Escolastico De Leon−Granados re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action Plaintiffs' Exhibits 46−50 (Attachments: # 1 Plaintiffs' Exhibit 46# 2 Plaintiffs' Exhibit 47# 3 Plaintiffs' Exhibit 48a1# 4 Plaintiffs' Exhibit 48a2# 5 Plaintiffs' Exhibit 48a3# 6 Plaintiffs' Exhibit 48a4# 7 Plaintiffs' Exhibit 48a5# 8 Plaintiffs' Exhibit 48b1# 9 Plaintiffs' Exhibit 48b2# 10 Plaintiffs' Exhibit 48b3# 11 Plaintiffs' Exhibit 48b4# 12 Plaintiffs' Exhibit 48b5# 13 Plaintiffs' Exhibit 48b6# 14 Plaintiffs' Exhibit 48b7# 15 Plaintiffs' Exhibit 49# 16 Plaintiffs' Exhibit 50)(Spears, George) Modified on 2/6/2006 to delete dublicate wording(vs). (Entered: 02/02/2006)
68 NOTICE Of Filing by Escolastico De Leon−Granados re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action Plaintiffs' Exhibits 51−55 (Attachments: # 1 Plaintiffs' Exhibit 51# 2 Plaintiffs' Exhibit 52# 3Plaintiffs' Exhibit 53# 4 Plaintiffs' Exhibit 54# 5 Plaintiffs' Exhibit 55)(Spears, George) Modified on 2/6/2006 to delete duplicate wording(vs). (Entered: 02/02/2006)
69 NOTICE Of Filing by Escolastico De Leon−Granados FLSA Consent to Sue Form (Attachments: # 1 Consent to Sue Form of Antonio Pablo Roldan−Coban)(Spears, George) (Entered: 02/07/2006)
70 First AMENDED COMPLAINT against all defendants, filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl. Ex. 56 − Defendants Written Consent to Amendment of Complaint)(Spears, George) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 02/07/2006)
71 ORDER granting (nunc pro tunc) 62 Motion for Leave to File Excess Pages . Signed by Judge Clarence Cooper on 2/9/06. (vs) (Entered: 02/09/2006)
Submission of 61 Notice of Filing of withdrawal, submitted to District Judge Clarence Cooper. (voluntary dismissal by Margarito Recinos−Villatoro, answer filed) (vs) (Entered: 02/10/2006)
72 NOTICE Of Filing by Escolastico De Leon−Granados FLSA Consent to Sue Form (Attachments: # 1 FLSA Consent to Sue Form of Cristobal Lucano Gutierrez)(Spears, George) (Entered: 02/14/2006)
73 Unopposed MOTION for Extension of Time to Respond to Plaintiff's Motion for Certification of Class by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 02/14/2006)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 16 of 40

02/15/2006 02/28/2006 02/28/2006
03/01/2006 03/03/2006 03/07/2006 03/17/2006 03/17/2006
03/21/2006 03/21/2006
03/22/2006 03/22/2006 03/28/2006 03/29/2006 03/31/2006

74 ORDER granting 73 Motion for Extension of Time to repond to pla's motion for certification of class. Dfts' response shall be due on February 28, 2006, and plas' reply shall be due 10 days thereafter. Signed by Judge Clarence Cooper on 2/15/06. (vs) (Entered: 02/15/2006)
75 MOTION for Leave to File Excess Pages by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 02/28/2006)
76 RESPONSE in Opposition re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 eller and sons depo.# 7 Oziel Matias depo.# 8 Margarito Villatoro depo.# 9 Escolastico De Leon Granados depo.# 10 Armenio Pablo−Calmo# 11 Isaias Granados depo.# 12 Ogler Recinos depo.# 13 Edy Garcia depo.# 14 Argelio Villatoro depo.)(Stine, James) (Entered: 02/28/2006)
77 NOTICE Of Filing by Escolastico De Leon−Granados Consent to Sue Form (Attachments: # 1 Consent to Sue Form of Agustin Soto Rios)(Spears, George) (Entered: 03/01/2006)
Submission of 76 Response in Opposition to Motion,,, 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action, submitted to District Judge Clarence Cooper. (vs) (Entered: 03/03/2006)
78 First MOTION for Extension of Time to Complete Discovery Joint Motion by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order Proposed Order Amending Scheduling Order)(Spears, George) (Entered: 03/07/2006)
Submission of 75 MOTION for Leave to File Excess Pages, submitted to District Judge Clarence Cooper. (vs) (Entered: 03/17/2006)
79 REPLY BRIEF re 63 MOTION to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl. Ex. 57# 2 Exhibit Pl. Ex. 58# 3 Exhibit Pl. Ex. 59# 4 Exhibit Pl. Ex. 60# 5 Exhibit Pl. Ex. 61# 6 Exhibit Pl. Ex. 62# 7 Exhibit Pl. Ex. 63a# 8 Exhibit Pl. Ex. 63 b# 9 Exhibit Pl. Ex. 63c)(Spears, George) (Entered: 03/17/2006)
80 ORDER granting (nucn pro tunc) 75 Motion for Leave to File Excess Pages . Signed by Judge Clarence Cooper on 3/21/06. (vs) (Entered: 03/21/2006)
81 ORDER granting 78 Joint Motion to Amend Scheduling Order. The Court Orders that the discovery period in this matter shall be extended to conclude 8 months from the date the Court issues its decision on plas' renewed Motion for Certification of Class Action. Signed by Judge Clarence Cooper on 3/21/06. (vs) (Entered: 03/21/2006)
82 NOTICE of TELECONFERENCE Hearing:Status Conference set for 3/28/2006 04:00 PM before Judge Clarence Cooper. (pds) (Entered: 03/22/2006)
83 First MOTION for Issuance of Letters Rogatory by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order Letter Rogatory# 2 Appendix A to Pl.'s Letter Rogatory# 3 Spanish Translation of Pl.'s Letter Rogatory)(Spears, George) (Entered: 03/22/2006)
85 Minute Entry for proceedings held before Judge Clarence Cooper : Status Conference held on 3/28/2006. Parties updated Court as to status of issues raised in motions to compel. Dfts to file answer to 1st Amended Cmp. (Court Reporter Amanda Lohnaas.)(vs) (Entered: 03/31/2006)
84 ANSWER to Amended Complaint by Eller and Sons Trees, Inc., Jerry Eller.(Stine, James) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 03/29/2006)
86 MOTION for Leave to File Memorandum of Law in Surreply to Reply in Support of Plainitffs' Renewed Motion for Class Certification with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 03/31/2006)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 17 of 40

04/04/2006 04/06/2006 04/12/2006
04/13/2006 04/13/2006
04/13/2006 04/19/2006
07/10/2006
07/13/2006 07/14/2006 07/20/2006
08/07/2006 08/16/2006 08/24/2006 08/30/2006 09/05/2006

87 NOTICE Of Filing by Escolastico De Leon−Granados FLSA Consent to Sue Form (Attachments: # 1 Consent to Sue Form of Lauro Castillo Gonzalez)(Spears, George) (Entered: 04/04/2006)
88 NOTICE Of Filing by Escolastico De Leon−Granados (Attachments: # 1 FLSA Consent Form of Casimiro Silverio−Lopez)(Spears, George) (Entered: 04/06/2006)
89 NOTICE Of Filing by Escolastico De Leon−Granados FLSA Consent to Sue Form (Attachments: # 1 Consent to Sue Form of Santos Mendez−Gomez# 2 Order Appointing Administrator Ad Litem of Mendez−Gomez Estate)(Spears, George) (Entered: 04/12/2006)
90 NOTICE Of Filing by Escolastico De Leon−Granados FLSA Consent to Sue Form (Attachments: # 1 FLSA Consent to Sue Form of Rudy Velasquez−Rivas)(Spears, George) (Entered: 04/13/2006)
91 RESPONSE in Opposition re 86 MOTION for Leave to File Memorandum of Law in Surreply to Reply in Support of Plainitffs' Renewed Motion for Class Certification filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 04/13/2006)
92 NOTICE Of Filing by Escolastico De Leon−Granados Consent to Sue (Attachments: # 1)(Spears, George) (Entered: 04/13/2006)
Submission of 83 First MOTION for Issuance of Letters Rogatory, 86 MOTION for Leave to File Memorandum of Law in Surreply to Reply in Support of Plainitffs' Renewed Motion for Class Certification, 91 Response in Opposition to Motion, submitted to District Judge Clarence Cooper. (vs) (Entered: 04/19/2006)
93 MOTION for Leave to File Motion for Leave Response to Def. Ltr. with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Supplement Suppl. Brief Response to Def. Ltr.# 2 Exhibit Plaintiff's Exhibit 64)(Spears, George) (Entered: 07/10/2006)
94 RESPONSE in Opposition re 93 MOTION for Leave to File Motion for Leave Response to Def. Ltr. filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 07/13/2006)
Submission of 93 MOTION for Leave to File Motion for Leave Response to Def. Ltr., 94 Response in Opposition to Motionsubmitted to District Judge Clarence Cooper. (vs) (Entered: 07/14/2006)
95 First MOTION to Compel Compliance with Subpoena Duces Tecum with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law Supporting Pl. Motion to Compel# 2 Exhibit Pl. Ex. 65# 3 Exhibit Pl. Ex. 66# 4 Exhibit Pl. Ex. 67# 5 Exhibit Pl. Ex. 68# 6 Exhibit Pl. Ex. 69)(Spears, George) (Entered: 07/20/2006)
96 RESPONSE in Opposition re 95 First MOTION to Compel Compliance with Subpoena Duces Tecum filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 08/07/2006)
Submission of 95 First MOTION to Compel Compliance with Subpoena Duces Tecum, 96 Response in Opposition to Motion, submitted to District Judge Clarence Cooper. (vs) (Entered: 08/16/2006)
97 Notice for Leave of Absence for the following date(s): 10/18/06 − 10/22/06, by George Brian Spears. (Spears, George) (Entered: 08/24/2006)
98 NOTICE Of Filing by Escolastico De Leon−Granados Supplemental Authority in Support of Plaintiffs' Renewed Motion for Certification of Class Action (Attachments: # 1 Exhibit Pl. Ex. 70)(Spears, George) (Entered: 08/30/2006)
99 MOTION for Leave to File Response to Plaintiffs' Supplemental Authority in Support of Its Renewed Motion for Certification of Class Action with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1Proposed Response)(Stine, James) Modified on 9/6/2006 to name attachment(vs). (Entered: 09/05/2006)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 18 of 40

09/28/2006
09/28/2006 10/16/2006 10/22/2006
10/23/2006 10/24/2006 10/27/2006 10/30/2006 11/02/2006 11/02/2006 11/09/2006 11/13/2006 11/15/2006

100 ORDER granting 63 Motion to Certify Class Plaintiffs' Renewed Motion for Certification of Class Action, granting 86 Motion for Leave to File Memorandum of Law in Surreply to Reply in Support of Plainitffs' Renewed Motion for Class Certification, denying 93 Motion for Leave to File Response to Def. Ltr, granting 99 Motion for Leave to File Response to Plaintiffs' Supplemental Authority in Support of Its Renewed Motion for Certification of Class Action; The Court hereby Certifies a class as to Cnt I of the First Amended Cmp, The Court hereby Certifies a sub−class as to Cnt I of the First Amended Cmp(See Order for details). The Court Appoints the Southern Poverty Law Center as class counsel. The Court Orders the parties to confer and jointly draft a proposed notice of class certification no later than Mondy, October 16, 2006. The Court will hold a telephone conference in this case on Wednesday, October 23, 2006, at 4:00 pm to discuss the notice of class certification and the Request for International Judicail Assistance. Signed by Judge Clarence Cooper on 9/28/06. (vs) (Entered: 09/29/2006)
101 ORDER granting in part and denying in part 37 Motion to Compel Production of Documents, granting in part and denying in part 38 Motion to Compel Responses to Interrogatories, granting 95 Motion to Compel Compliance with Subpoena Duces Tecum . Signed by Judge Clarence Cooper on 9/28/06. (vs) (Entered: 09/29/2006)
102 MOTION to Stay Pending Petition for Permission to Appeal with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 10/16/2006)
103 MOTION for Order Approving Proposed Class Action Notice and Opt−Out Form with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Memorandm of Law Supporting Plaintiffs' Motion for Court Approval of Proposed Class Action Notice and Opt−Out Form# 2 Text of Proposed Order # 3 Appendix Appendix A Proposed Notice of Class Action Lawsuit# 4 Appendix Appendix B Form to Withdraw From Lawsuit# 5 Exhibit Pl. Ex. 71# 6 Exhibit Pl. Ex. 72# 7 Exhibit Pl. Ex. 73# 8 Exhibit Pl. Ex. 74)(Spears, George) (Entered: 10/22/2006)
105 Minute Entry for proceedings held before Judge Clarence Cooper : Telephone Conference re motion for issuance of Letter Rogatory held on 10/23/2006. (Court Reporter Amanda Lohnaas.)(vs) (Entered: 10/25/2006)
104 ORDER granting as unopposed 83 Motion for Issuance of Letters Rogatory. The Court Directs plas to provide the Court with a corrected Letter Rogatory for the Court's signature and seal. Signed by Judge Clarence Cooper on 10/24/06. (vs) (Entered: 10/24/2006)
106 NOTICE Of Filing by Escolastico De Leon−Granados re 105 Telephone Conference, 104 Order on Motion for Issuance of Letters Rogatory Amended Letter Rogatory (Attachments: # 1 Amended Letter Rogatory)(Spears, George) (Entered: 10/27/2006)
107 RESPONSE in Opposition re 102 MOTION to Stay Pending Petition for Permission to Appeal filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 10/30/2006)
Submission of 102 MOTION to Stay Pending Petition for Permission to Appeal, 107 Response in Opposition to Motion, submitted to District Judge Clarence Cooper. (vs) (Entered: 11/02/2006)
108 Letter Rogatory issued and original sent to Brian Spears, attorney for Plaintiff re 104 Order on Motion for Issuance of Letters Rogatory (vs) (Entered: 11/02/2006)
109 NOTICE OF APPEAL as to 101 Order on Motion to Compel, 100 Order on Motion to Certify Class, Order on Motion for Leave to File, by Jerry Eller. Filing fee $ 455. Transcript Order Form due on 11/27/2006. USCA 06−90027−E. (fem) (Entered: 11/15/2006)
111 TRANSCRIPT ORDER FORM re 109 Notice of Appeal. USCA Appeal Number 06−90027−ENo hearing.(fem) (Entered: 11/15/2006)
110 Certified copy of ORDER of USCA GRANTING appellant's permission to appeal re: 109 Notice of Appeal filed by Jerry Eller, Case Appealed to USCA Case Number 06−90027−E. (fem) (Entered: 11/15/2006)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 19 of 40

11/15/2006
11/15/2006
11/17/2006 11/17/2006 11/22/2006 11/29/2006 12/05/2006 12/05/2006 12/08/2006 12/20/2006 12/20/2006 12/27/2006 01/08/2007 02/13/2007 02/21/2007 02/22/2007 02/26/2007 02/27/2007 02/28/2007

112 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller (Defendants' Supplemental Response to Pl aintiff Escolastico De Leon−Granados' First Set of Interrogatories to Defendant Eller &Sons Trees, Inc. (Stine, James) (Entered: 11/15/2006)
113 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller (Defendants' Supplemental Response to Plaintiffs' First Request for Production of Documents to Defendant Eller &Sons Trees, Inc.) (Stine, James) (Entered: 11/15/2006)
114 ORDER denying 102 Motion to Stay Pending Petition for Permission to Appeal. Signed by Judge Clarence Cooper on 11/17/06. (vs) (Entered: 11/17/2006)
USCA Appeal Fees received $ 455 receipt number 558341 re 109 Notice of Appeal filed by Jerry Eller, Case Appealed to USCA Case Number 06−90027−E. Notified USCA. (fem) (Entered: 11/20/2006)
Per USCA, no transmission of NOA package necessary for 109 Notice of Appeal. USCA Case No. 06−15876−C. (dfb) (Entered: 11/22/2006)
Submission of 103 MOTION for Order Approving Proposed Class Action Notice and Opt−Out Form, submitted to District Judge Clarence Cooper. (vs) (Entered: 11/29/2006)
115 PROPOSED CONSENT ORDER Consent Protective Order as to the production of a list of Defendant's customers/clients. (Stine, James) (Entered: 12/05/2006)
116 Joint MOTION for Protective Order by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Consent Protective Order)(Stine, James) (Entered: 12/05/2006)
117 CONSENT PROTECTIVE ORDER Signed by Judge Clarence Cooper on 12/8/06. (vs) (Entered: 12/08/2006)
CERTIFICATE OF READINESS of Appeal Record re 109 Notice of Appeal filed by Jerry Eller,. USCA Case Number 06−15876−C (fem) (Entered: 12/20/2006)
118 Certified copy of CERTIFICATE OF READINESS transmitted to USCA re 109 Notice of Appeal. Case Appealed to USCA Case Number 06−15876−C (fem) (Entered: 12/20/2006)
119 USCA Acknowledgment of receipt of certificate of readiness re 109 Notice of Appeal filed by Jerry Eller,. Case Appealed to USCA Case Number 06−15876−C. (fem) (Entered: 12/29/2006)
120 Notice for Leave of Absence for the following date(s): 3/8/07 − 3/20/07, by George Brian Spears. (Spears, George) (Entered: 01/08/2007)
121 FORTHWITH LETTER from USCA re 109 Notice of Appeal filed by Jerry Eller,. Case Appealed to USCA Case Number 06−15876−CC. Appeal Record due by 2/22/2007. (fem) (Entered: 02/13/2007)
122 Certified and Transmitted Record on Appeal to US Court of Appeals re 109 Notice of Appeal Case Appealed to USCA Case Number 06−15876−CC. (fem) (Entered: 02/21/2007)
123 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller for Defendant's First Interrogatories and Request for Procution of Documents to Plaintiff Class (Stine, James) (Entered: 02/22/2007)
124 USCA Acknowledgment of receipt of record on appeal re 109 Notice of Appeal filed by Jerry Eller,. Case Appealed to USCA Case Number 06−15376−C. (fem) (Entered: 02/27/2007)
125 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller for Defendants' Interrogatories and REquest for PRoduction of Documents to Each Individual Plainitff. (Stine, James) (Entered: 02/27/2007)
126 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller for Defendants' Interrogatories and REquest for Production of Documents to Individual Plaintiffs (Stine, James) (Entered: 02/28/2007)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 20 of 40

03/12/2007 03/20/2007 03/25/2007 04/01/2007
04/10/2007 04/13/2007 04/13/2007 04/16/2007 04/16/2007 04/18/2007 04/21/2007 04/25/2007 04/26/2007
04/30/2007
05/02/2007

127 APPLICATION for Admission of Erin Trodden Pro Hac Vice on behalf of Plaintiffs.Filing Fee received $150.00, Receipt #562603. (Attachments: # 1 Order on Appearance)(vs) (Entered: 03/16/2007)
128 ORDER granting 127 Application of Erin Trodden for Admission Pro Hac Vice. Signed by Judge Clarence Cooper on 3/20/07. (vs) (Entered: 03/21/2007)
129 NOTICE by Rosanio Concepcion−Matias Notice of Withdrawal of Consent to Join FLSA Collective Action (Spears, George) (Entered: 03/25/2007)
130 First MOTION for Protective Order Limiting Discovery From Absent Class Members with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law Supporting Plaintiffs' Motion for Protective Order# 2 Text of Proposed Order Proposed Protective Order Limiting Discovery# 3 Exhibit Pl. Ex. 75# 4 Exhibit Pl. Ex. 76# 5 Exhibit Pl. Ex. 77# 6 Exhibit Pl. Ex. 78# 7 Exhibit Pl. Ex. 79# 8 Exhibit Pl. Ex. 80)(Spears, George) (Entered: 04/01/2007)
131 CERTIFICATE of Counsel Certificate of Mailing Notice of Class Action Lawsuit by George Brian Spears on behalf of all plaintiffs (Attachments: # 1 Exhibit Pl Ex 81# 2 Exhibit PL Ex 82)(Spears, George) (Entered: 04/10/2007)
132 RESPONSE in Opposition re 130 First MOTION for Protective Order Limiting Discovery From Absent Class Members filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 04/13/2007)
133 DOCUMENT FILING ERRORRESPONSE in Opposition re 130 First MOTION for Protective Order Limiting Discovery From Absent Class Members filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) Modified on 4/16/2007 (vs). (Entered: 04/13/2007)
Notification of Docket Correction re 133 Response in Opposition to Motion. Document duplicate to previous 132 filing. (vs) (Entered: 04/16/2007)
Submission of 132 Response in Opposition to Motion, 130 First MOTION for Protective Order Limiting Discovery From Absent Class Members, submitted to District Judge Clarence Cooper. (vs) (Entered: 04/16/2007)
134 Notice for Leave of Absence for the following date(s): 5/17/07−5/21/07, 7/3/07−7/12/07, 8/2/07−8/7/07, 9/27/07−10/1/07, 10/31/07−11/5/07, by George Brian Spears. (Spears, George) (Entered: 04/18/2007)
135 REPLY BRIEF re 130 First MOTION for Protective Order Limiting Discovery From Absent Class Members filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 04/21/2007)
136 Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery, with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Pl. Ex. 83# 3 Exhibit Pl. Ex. 84# 4 Exhibit Pl. Ex. 85)(Spears, George) (Entered: 04/25/2007)
137 ORDER re 136 Emergency MOTION to Amend Scheduling Order, the Court Orders dfts Eller and Sons Trees, Inc. and Jerry Eller to file a response to the motion by Monday April 30, 2007. Any reply in support of the motion should be filed by Wednesday, May, 2, 2007. Signed by Judge Clarence Cooper on 4/26/07. (vs) (Entered: 04/26/2007)
138 RESPONSE in Opposition re 136 Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery,Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery, filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Exhibit Southern Poverty's Financial Statement)(Stine, James) (Entered: 04/30/2007)
139 REPLY BRIEF re 136 Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery,Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery, filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl. Ex. 86)(Spears, George) (Entered: 05/02/2007)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 21 of 40

05/03/2007
05/09/2007
05/11/2007 05/14/2007
05/21/2007 06/20/2007 06/27/2007 06/27/2007 06/27/2007 07/09/2007 07/09/2007 07/11/2007 07/25/2007 09/11/2007 10/01/2007

Submission of 136 Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery,Emergency MOTION to Amend 81 Order on Motion for Extension of Time to Complete Discovery,, 139 Reply Brief, 138 Response in Opposition to Motion,, submitted to District Judge Clarence Cooper. (vs) (Entered: 05/03/2007)
140 Minute Entry for proceedings held before Judge Clarence Cooper : Telephone Conference held on 5/9/2007. Hrg on plas motion for protective order limiting discovery from absent members and plas' emergency motion to amend scheduling order. Court granted motion for protective order; Court granted in part and denied in part emergency motion to amend scheduling order. Discovery period extended two months. Court denied dfts' requests for sanctions. Cnsl for plas' to prepare order &submit by Friday, May 11, 2007. (Court Reporter Amanda Lohnaas.)(vs) (Entered: 05/09/2007)
141 PROPOSED ORDER Order Regarding Plaintiffs' Motion for Protective Order and Modification of Scheduling Order re: 140 Telephone Conference,,. (Spears, George) (Entered: 05/11/2007)
142 ORDER granting in part and denying in part Plaintiffs' 130 Motion for Protective Order; granting in part and denying in part Plaintiffs' 136 Emergency Motion to Amend Scheduling Order. See Order for details. Discovery will close on 7/30/07. Defendants' requests for sanctions are DENIED. Signed by Judge Clarence Cooper on 5/14/07. (mas) (Entered: 05/14/2007)
143 NOTICE Of Filing Correction to Doc. 66−2 by Escolastico De Leon−Granados re 66 Notice of Filing, Corrected English Language Translation (Attachments: # 1 Exhibit Pl Ex 87)(Spears, George) (Entered: 05/21/2007)
144 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants Interrogatories and Request for Production of Documents to Plaintiff Marvin Ballardo Castillo Diaz (Stine, James) (Entered: 06/20/2007)
145 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendant's Interrogatoreis and Request for Production of Document to Plaintiff Abner Misael Rivera−Montufar (Stine, James) (Entered: 06/27/2007)
146 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Alberto Diaz−Diaz (Stine, James) (Entered: 06/27/2007)
147 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendant's Interrogatories and Request for Production of Documents to Plaintiff Alberto Diaz−Diaz (Stine, James) (Entered: 06/27/2007)
148 CERTIFICATE OF SERVICE Defendants' Responses to Plaintiffs' Second Request for Production of Documents by Eller and Sons Trees, Inc., Jerry Eller.(Stine, James) (Entered: 07/09/2007)
149 Joint MOTION for Extension of Time to Complete Discovery Related to Experts by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 07/09/2007)
150 ORDER granting 149 Joint Motion for Extension of Time to Complete Discovery. Discovery ends on 9/28/2007. All motions for summary judgment will be due 10/30/07. Signed by Judge Clarence Cooper on 7/11/07. (mas) (Entered: 07/11/2007)
151 NOTICE of Appearance by James Larry Stine on behalf of Eller and Sons Trees, Inc., Jerry Eller (Stine, James) (Entered: 07/25/2007)
152 NOTICE by Escolastico De Leon−Granados of Receipt of Rule 23 Opt−Out Form (Attachments: # 1 Opt−Out Form of Oswaldo Morales)(Spears, George) (Entered: 09/11/2007)
153 Certified copy of JUDGMENT of USCA AFFIRMING the decision of the District Court re: 109 Notice of Appeal filed by Jerry Eller Case Appealed to USCA Case Number 06−15876. (fem) (Entered: 10/03/2007)

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10/02/2007 10/05/2007 10/09/2007 10/09/2007 10/09/2007 10/09/2007
10/11/2007 10/12/2007
10/12/2007
10/15/2007
10/16/2007 10/16/2007
10/16/2007
10/22/2007 11/08/2007 11/08/2007 11/13/2007 11/13/2007 11/13/2007 11/13/2007 11/14/2007

154 Appeal Record Returned: 109 Notice of Appeal Case Appealed to USCA Case Number 06−15876−CC. (fem) (Entered: 10/03/2007)
158 NOTICES of Withdrawal from lawsuit received via FedEx International. (vs) (Entered: 10/10/2007)
155 NOTICE withdrawal from lawsuit received from N. Colman. (vs) (Entered: 10/10/2007)
156 NOTICE withdrawal from lawsuit received from A. Cho (vs) (Entered: 10/10/2007)
157 NOTICE Withdrawal from lawsuit received from O. Lopez (vs) (Entered: 10/10/2007)
159 NOTICE of delivery of forms to withdraw from lawsuit (Attachments: # 1 Attachment A part 1# 2 Attachment A part 2# 3 Attachment A part 3# 4 Attachment A part 4)(vs) (Entered: 10/10/2007)
160 CERTIFICATE OF SERVICE re 159 Notice of delivery of forms by Eller and Sons Trees, Inc., Jerry Eller..(vs) (Entered: 10/12/2007)
161 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to James Larry Stine re 160 Certificate of Service. (vs) (Entered: 10/12/2007)
162 Emergency MOTION to Amend Briefing Schedule for Summary Judgment by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 10/12/2007)
163 Emergency MOTION to Amend Scheduling Order to Permit Investigation of Impropriety in Acquisition of Forms to Withdraw From Lawsuit And Incorporated Memorandum of Law by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 10/15/2007)
164 Notice for Leave of Absence for the following date(s): 12/24/07−1/11/08, 3/7/08−3/17/08, by George Brian Spears. (Spears, George) (Entered: 10/16/2007)
165 ORDER re 162 Motion to Amend Briefing for Summary Judgment. Motions for sum jgm to be filed by November 5, 2007. Signed by Judge Clarence Cooper on 10/16/07. (vs) (Entered: 10/17/2007)
166 ORDER granting 163 Motion to Amend Scheduling Order. Discovery will re−open until December 31,2007, for the limited purpose of investigating impropriety in the acquisition of opt−out forms filed between the dates of October 5, 2007 and the present. Signed by Judge Clarence Cooper on 10/16/07. (see Order for details) (vs) (Entered: 10/17/2007)
167 NOTICE re withdrawal from lawsuit. (vs) (Entered: 10/23/2007)
168 NOTICE Of Filing Manual Filing of Original Deposition Transcripts by Eller and Sons Trees, Inc., Jerry Eller (Stine, James) (Entered: 11/08/2007)
169 NOTICE of Withdrawal from action by Amaida Alfaro de Martinez and Joel Martinez Matias (vs) (Entered: 11/14/2007)
174 DEPOSITION of Margarito Recinos−Villartoro taken on 9/12/05 by Eller and Sons Trees, Inc., Jerry Eller.(vs) (Entered: 11/15/2007)
175 DEPOSITION of Escolastico De Leon−Granados taken on 9/12/05 at 2:20 p.m. by Eller and Sons Trees, Inc., Jerry Eller.(vs) (Entered: 11/15/2007)
176 DEPOSITION of Isaias Profeta De Leon−Granados taken on 9/13/05 at 9:45 a.m. by Eller and Sons Trees, Inc., Jerry Eller.(vs) (Entered: 11/15/2007)
177 DEPOSITION of Armenio Pablo−Calmo taken on 9/13/05 at 1:45 p.m. by Eller and Sons Trees, Inc., Jerry Eller.(vs) (Entered: 11/15/2007)
170 MOTION for Leave to File Excess Pages by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Text of Proposed Order)(Stine, James) (Entered: 11/14/2007)

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171 MOTION for Leave to File Excess Pages in Plaintiffs' Memorandum of Law in Support of Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 11/14/2007)
172 MOTION for Leave to File Excess Pages in Plaiintiffs' Memorandum of Law in Support of Partial Summary Judgment Related to Reimbursement of Expenses by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 11/14/2007)
173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller)(Spears, George) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 11/15/2007)
178 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiffs Exhibits 88−92 (Attachments: # 1 Exhibit Pl Ex 88, # 2 Exhibit pl ex 89, # 3 Exhibit pl ex 90, # 4 Exhibit pl ex 91, # 5 Exhibit pl ex 92)(Spears, George) (Entered: 11/15/2007)
179 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiffs Exhibits 93−97 (Attachments: # 1 Exhibit Pl Ex 93, # 2 Exhibit Pl Ex 94, # 3 Exhibit Pl Ex 95, # 4 Exhibit Pl Ex 96, # 5 Exhibit Pl Ex 97)(Spears, George) (Entered: 11/15/2007)
180 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiffs Exhibits 98−102 (Attachments: # 1 Exhibit Pl Ex 98, # 2 Exhibit Pl Ex 99, # 3 Exhibit Pl Ex 100, # 4 Exhibit Pl Ex 101, # 5 Exhibit Pl Ex 102)(Spears, George) (Entered: 11/15/2007)
181 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiffs Exhibits 103−107 (Attachments: # 1 Exhibit Pl Ex 103, # 2 Exhibit Pl Ex 104, # 3 Exhibit Pl Ex 105, # 4 Exhibit Pl Ex 106, # 5 Exhibit Pl Ex 107)(Spears, George) (Entered: 11/15/2007)
182 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 108−112 (Attachments: # 1 Exhibit Pl Ex 108, # 2 Exhibit Pl Ex 109, # 3 Exhibit Pl Ex 110, # 4 Exhibit Pl Ex 111, # 5 Exhibit Pl Ex 112)(Spears, George) (Entered: 11/15/2007)
183 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 113−117 (Attachments: # 1 Exhibit Pl Ex 113, # 2 Exhibit Pl Ex 114, # 3 Exhibit Pl Ex 115, # 4 Exhibit Pl Ex 116, # 5 Exhibit Pl Ex 117)(Spears, George) (Entered: 11/15/2007)
184 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 118−122 (Attachments: # 1 Exhibit Pl Ex 118, # 2 Exhibit Pl Ex 119, # 3 Exhibit Pl Ex 120, # 4 Exhibit Pl Ex 121, # 5 Exhibit Pl Ex 122)(Spears, George) (Entered: 11/15/2007)
185 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 123−127 (Attachments: # 1 Exhibit Pl Ex 123, # 2 Exhibit Pl Ex 124, # 3 Exhibit Pl Ex 125, # 4 Exhibit Pl Ex 126, # 5 Exhibit Pl Ex 127)(Spears, George) (Entered: 11/15/2007)
186 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller

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Plaintiff's Exhibits 128−132 (Attachments: # 1 Exhibit Pl Ex 128, # 2 Exhibit Pl Ex 129, # 3 Exhibit Pl Ex 130, # 4 Exhibit Pl Ex 131, # 5 Exhibit Pl Ex 132)(Spears, George) (Entered: 11/15/2007)
187 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 133−137 (Attachments: # 1 Exhibit Pl Ex 133, # 2 Exhibit Pl Ex 134, # 3 Exhibit Pl Ex 135, # 4 Exhibit Pl Ex 136, # 5 Exhibit Pl Ex 137)(Spears, George) (Entered: 11/15/2007)
188 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 138−141 (Attachments: # 1 Exhibit Pl Ex 138, # 2 Exhibit Pl Ex 139, # 3 Exhibit Pl Ex 140, # 4 Exhibit Pl Ex 141)(Spears, George) (Entered: 11/15/2007)
189 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 142a1 (Attachments: # 1 Exhibit Pl Ex 142a1)(Spears, George) (Entered: 11/15/2007)
190 MOTION for Partial Summary Judgment by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 11/15/2007)
191 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 142a2 (Attachments: # 1 Exhibit Pl Ex 142a2)(Spears, George) (Entered: 11/15/2007)
192 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plantiff's Exhibit 142b1 (Attachments: # 1 Exhibit Pl Ex 142b1)(Spears, George) (Entered: 11/15/2007)
193 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 142b2 (Attachments: # 1 Exhibit Pl Ex 142b2)(Spears, George) (Entered: 11/15/2007)
194 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibits 143−147 (Attachments: # 1 Errata Pl Ex 143, # 2 Exhibit Pl Ex 144, # 3 Exhibit Pl Ex 145, # 4 Exhibit Pl Ex 146, # 5 Exhibit Pl Ex 147)(Spears, George) (Entered: 11/15/2007)
195 MOTION for Partial Summary Judgment with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Brief Memorandum of Law in Support, # 2 Statement of Material Facts, # 3 Exhibit Exhibit List, # 4 Exhibit A− Eller and Sons Depo., # 5 Exhibit B− Depo. Ismael Recinos, # 6 Exhibit C− Depo. Ogler Roeli Castillo Recinos, # 7 Exhibit D_Depo. Escolastico De Leon−Granados, # 8 Exhibit E_Isaias Profeta De Leon Granados, # 9 Exhibit F_ Depo of Margarito Recinos Villatoro, # 10 Exhibit H_Aff. of Armenio Pablo−Calmo, # 11 Exhibit I_ Depo of Edy Otoniel Figueroa Garcia, # 12 Exhibit J_Depo of Oziel Villatoro Matias, # 13 Exhibit K−Argelio Enai Castillo Villatoro, # 14 Exhibit L_Depo of Samuel Eduardo Tecun−Lucas, # 15 Exhibit M_Depo of Ruben Perez−Lucas, # 16 Exhibit N_Aff. of Ron Oxentenko, # 17 Exhibit 1_Sample ETA−750 Forms, # 18 Exhibit 1_ Sampte ETA−750 Forms, # 19 Exhibit 1_ETA−750 Form, # 20 Exhibit 1_Sample ETA−750 Form, # 21 Exhibit 2_Disclosure Statements from 1999 to 2006, # 22 Exhibit Ex_2 2000 Disclosure, # 23 Exhibit Ex.2_2001 Disclosure, # 24 Exhibit Ex.2_2002 Disclosure, # 25 Exhibit Ex. 2_disclosure 2003, # 26 Exhibit Ex.2_Disclosure 2004, # 27 Exhibit Ex. 2_Disclosure 2005, # 28 Exhibit Ex.2_Disclosure 2006, # 29 Exhibit Ex. 3_Pay stubs, # 30 Exhibit Ex. 3_Pay stubs, # 31 Exhibit Ex. 3_Paystubs, # 32 Exhibit Ex.3_ Paystubs, # 33 Exhibit Ex. 3_Paystubs, # 34 Exhibit Ex.3_Pay stubs, # 35 Exhibit Ex.3_ Pay Stub, # 36 Exhibit Ex.4_Wage and Hour Opinion, # 37 Exhibit Ex. 5_ETA Guidance Letter, #

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38 Exhibit Ex.6_ FOIA Letter, # 39 Exhibit Ex. 7_US DOL Letter, # 40 Exhibit Ex. 8_Wage and Hour Division Invest. Report, # 41 Exhibit Ex. 9_Congressional Recuitment Guidelines, # 42 Exhibit Ex. G_Depo. Armenio Pablo−Calmo)(Stine, James) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 11/15/2007)
196 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148a−1 (Attachments: # 1 Exhibit Pl Ex 148a−1)(Spears, George) (Entered: 11/15/2007)
197 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148a−2 (Attachments: # 1 Exhibit pl Ex 148a−2)(Spears, George) (Entered: 11/15/2007)
198 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148a−3 (Attachments: # 1 Exhibit Pl Ex 148a−3)(Spears, George) (Entered: 11/15/2007)
199 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148b−1 (Attachments: # 1 Exhibit Pl Ex 148b−1)(Spears, George) (Entered: 11/15/2007)
200 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148b−2 (Attachments: # 1 Exhibit Pl Ex 148b−2)(Spears, George) (Entered: 11/15/2007)
201 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148b−3 (Attachments: # 1 Exhibit Pl Ex 148b−3)(Spears, George) (Entered: 11/15/2007)
202 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 148b−4 (Attachments: # 1 Exhibit Pl Ex 148b−4)(Spears, George) (Entered: 11/15/2007)
203 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 149a−1 (Attachments: # 1 Exhibit Pl Ex 149a−1)(Spears, George) (Entered: 11/15/2007)
204 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 149a−2 (Attachments: # 1 Exhibit Pl Ex 149a−2)(Spears, George) (Entered: 11/15/2007)
205 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 149b−1 (Attachments: # 1 Exhibit Pl Ex 149b−1)(Spears, George) (Entered: 11/15/2007)
206 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller Plaintiff's Exhibit 149b−2 (Attachments: # 1 Exhibit Pl Ex 149b−2)(Spears, George) (Entered: 11/15/2007)
207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses by Escolastico De Leon−Granados. (Attachments: # 1 Brief)(Spears, George) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 11/15/2007)

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208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief)(Spears, George) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 11/15/2007)
209 NOTICE Of Filing by Escolastico De Leon−Granados re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller, 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses, 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements Plaintiffs' Statement of Undisputed Material Facts (Attachments: # 1 Statement of Material Facts Plaintiffs' Statement of Undisputed Material Facts, # 2 Statement of Material Facts Plaintiffs Statement of Undisputed Material Facts Part 2)(Spears, George) (Entered: 11/15/2007)
210 DEPOSITION of Randall Allen taken on 3/26/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
211 DEPOSITION of Raul Bonifilo Castillo Mendoza taken on 3/13/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
212 DEPOSITION of Protasio Burgos Maldonado taken on 7/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
213 DEPOSITION of Ron Oxentenko taken on 5/16/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
214 DEPOSITION of Jerry Eller taken on 5/15/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
215 DEPOSITION of Eller &Sons Trees, Inc., through Jerry Eller taken on 7/9/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
216 DEPOSITION of Crystal Blacquiere taken on 6/26/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
217 DEPOSITION VOL. I of Nelson Ignacio Hernandez−Lopez taken on 5/23/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
218 DEPOSITION Vo. II of Nelson Ignacio Hernadnez−Lopez taken on 5/24/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
219 DEPOSITION Vol. I of Ruben Perez−Lucas taken on 5/22/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
220 DEPOSITION Vol. II of Ruben Perez−Lucas taken on 5/23/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
221 DEPOSITION of Steven Wayne Swett taken on 3/28/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
222 DEPOSITION of Ermis Alexi Lagos Arias taken on 3/13/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
223 DEPOSITION of Felix Morales Antonio taken on 7/13/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
224 DEPOSITION Transcript of two meetings between of Department of Labor Officials and Forestry contractors t/w Exh. 131 (Floppy Disc) by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
225 DEPOSITION of Eller &Sons Trees, Inc., through Ismael Olegario Recinos taken on 1/4/06 &1/5/06 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
226 DEPOSITION Vol. I of Eller &Sons Trees, Inc., through Ron Oxentenko taken on 7/9/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
227 DEPOSITION VOl. II of Eller &Sons Trees, Inc., through Ron Oxentenko taken 7/10/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 27 of 40

11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007 11/15/2007

228 DEPOSITION of Enrique Gomez Zapata taken on 4/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
229 DEPOSITION of Anthony D. Bull taken on 5/17/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
230 DEPOSITION of Clementino Ramirez−Montufar taken on 5/23/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
231 DEPOSITION of Agustin Soto Rios taken on 7/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
232 DEPOSITION of Manuel Medrano taken on 3/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/19/2007)
236 DEPOSITION of Felipe Antonio Castillo Matias taken on 3/27/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
237 DEPOSITION of Samuel Eduardo Tecun−Lucas taken on 5/22/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
238 DEPOSITION of Marco Antonio Cortillo Cobon taken on 3/9/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
239 DEPOSITION of Henry Bagner Villatoro Villatoro taken on 1/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
240 DEPOSITION of Melinda Brown taken on 7/17/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
241 DEPOSITION of Charlotte Rice Irwin taken on 5/3/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
242 DEPOSITION of Esau Matias Herrera taken on 3/29/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
243 DEPOSITION of Ismael Olegario Recinos taken on 1/4/06 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
244 DEPOSITION of Ismael Olegario Recinos taken on 6/27/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
245 DEPOSITION of Argelio Enai Castillo Villatoro taken on 1/10/06 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
246 DEPOSITION of Edgar Castillo taken on 3/12/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
247 DEPOSITION of William Frederick Gaebel taken on 7/26/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
248 DEPOSITION of William Jefferson Morris, III taken on 7/27/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
249 DEPOSITION of Joel Leonides Martinez Matias taken on 3/27/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
250 DEPOSITION of Edy Otoniel Figueroa Garcia taken on 1/10/06 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
251 DEPOSITION of Gelber Vincente Yoxom Matias taken on 3/28/07 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
252 DEPOSITION of Oziel Villatoro Matias taken on 1/12/06 by Escolastico De Leon−Granados.(vs) (Entered: 11/20/2007)
Received Three Binders Labeled Plaintiffs' Exhibits Motion for Summary Judgment re 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses, 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements. (Placed with file) (vs) (Entered: 11/20/2007)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 28 of 40

11/16/2007 11/16/2007 11/16/2007 11/26/2007 11/27/2007 11/27/2007
11/27/2007
11/27/2007
11/27/2007 11/27/2007 11/27/2007
11/27/2007 11/27/2007 11/27/2007

233 ORDER granting 170 Motion for Leave to File Excess Pages. Signed by Judge Clarence Cooper on 11/16/07. (vs) (Entered: 11/19/2007)
234 ORDER granting 171 Motion for Leave to File Excess Pages. Signed by Judge Clarence Cooper on 11/16/07. (vs) (Entered: 11/19/2007)
235 ORDER granting 172 Motion for Leave to File Excess Pages in Plaiintiffs' Memorandum of Law in Support of Partial Summary Judgment Related to Reimbursement of Expenses. Signed by Judge Clarence Cooper on 11/16/07. (vs) (Entered: 11/19/2007)
269 NOTICE Received copy of previously e−filed affidavit by Escolastico De Leon−Granados (Attachments: # 1 Affidavit of Dwight D. Steward, PHD)(vs) (Entered: 11/30/2007)
253 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Excerpt Randall Allen Deposition, # 2 Crystal Blacquiere Deposition Excerpts, # 3 Melinda Brown Deposition Excerpts, # 4 Anthony D. Bull Deposition Excerpt)(Spears, George) (Entered: 11/27/2007)
254 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Protasio Burgos Maldonado Depositon Excerpts, # 2 Edgar Castillo Deposition Excerpts, # 3 Marco Antonio Cortillo Cobon Deposition Excerpts, # 4 Felipe Antonio Castillo Matias Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
255 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Raul Bonifilio Castillo Mendoza Deposition Excerpts, # 2 Ogler Roeli Castillo Recinos Deposition Excerpts, # 3 Argelio Enai Castillo Villatoro Deposition Excerpts, # 4 Escolastico De Leon−Granados Deposition Excerpts, # 5 Isaias Profeta De Leon−Granados Deposition Excerpts, # 6 Edy Otoniel Figueroa Garcia Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
256 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 First Eller &Sons Deposition Excerpts, # 2 Second Volume 1 Eller &Sons Dep. 2 Excerpts, # 3 Second Volume 2 Eller &Sons Dep. 3 Excerpts, # 4 Second Volume 3 Eller &Sons Dep. 4 Excerpts)(Spears, George) (Entered: 11/27/2007)
257 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Jerry Eller Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
258 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Jerry Eller Part 2 Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
259 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 William Frederick Gaebel Deposition Excerpts, # 2 Enrique Gomez Zapata Deposition Excerpts, # 3 Nelson Ignacio Hernandez−Lopez Deposition Excerpts, # 4 Ermis Alexi Lagos Arias)(Spears, George) (Entered: 11/27/2007)
260 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Joel Leonides Martinez Matias Deposition Excerpts, # 2 Esau Matias Herrera Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
261 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Manuel Medrano Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
262 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Felix Morales Antonio Deposition Excerpts, # 2 Ron Oxentenko Deposition Excerpts, # 3 Armenio Pablo−Calmo Deposition Excerpts, # 4 Ruben Perez−Lucas Deposition Excerpts, # 5 Clementino Ramirez−Montufar Deposition Excerpts, # 6 Charlotte Rice Irwin)(Spears, George)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 29 of 40

11/27/2007 11/27/2007
11/28/2007 11/28/2007 11/29/2007 11/29/2007 12/05/2007
12/06/2007
12/27/2007 12/31/2007 12/31/2007 01/04/2008 01/11/2008 01/11/2008 01/11/2008

(Entered: 11/27/2007)
263 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Ismael Olegario Recinos Deposition Excerpts, # 2 Ismael Olegario Recinos Dep. 2 Excerpts)(Spears, George) (Entered: 11/27/2007)
264 NOTICE Of Filing by Escolastico De Leon−Granados re 209 Notice of Filing,, Deposition Excerpts (Attachments: # 1 Agustin Soto Rios Deposition Excerpts, # 2 Steven Wayne Swett Deposition Excerpts, # 3 Samuel Eduardo Tecun−Lucas Deposition Excerpts, # 4 Oziel Villatoro Matias Deposition Excerpts, # 5 Gelber Vicente Yoxom Matias Deposition Excerpts)(Spears, George) (Entered: 11/27/2007)
265 NOTICE of withdrawal by Salvador Alfaro (vs) (Entered: 11/29/2007)
266 NOTICE or withdrawal by Benjamin Gomez(vs) (Entered: 11/29/2007)
267 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' Response To Plaintiffs' Second Interrogatories (Oliver, Paul) (Entered: 11/29/2007)
268 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' Response To Plaintiffs' Third Request For Production of Documents (Oliver, Paul) (Entered: 11/29/2007)
270 Joint Emergency MOTION for Extension of Time File Responses to Partial Summary Judgment Motions and Amendment of Scheduling Order Related to Investigation of Impropriety in Acquisition of Forms to Withdraw from Lawsuit with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) Modified on 12/6/2007 to delete duplicative text (ryc). (Entered: 12/05/2007)
271 ORDER GRANTING the 270 Joint Emergency Motion for Extension of Time to file responses to Partial Summary Judgment Motions and Amendment of Scheduling Order related to investigation of impropriety in acquisition of forms to withdraw from lawsuit. The parties shall file their responses to the cross−motions for partial summary judgment on or before January 11, 2008. Discovery shall be completed by January 31, 2008. Any motions resulting from the investigation of opt−out forms filed between October 5, 2007 and the present shall be filed no later than February 15, 2008. Signed by Judge Clarence Cooper on 12/6/07. (dfb) (Entered: 12/07/2007)
272 NOTICE of intent to w/d from action by Marvin Armando Gonzalez (vs) (Entered: 12/28/2007)
273 MOTION for Leave to File Excess Pages by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 12/31/2007)
274 Second MOTION to Compel Responses to Interrogatories with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief, # 2 Pl. Ex. 163, # 3 Pl. Ex. 164, # 4 Pl. Ex. 165, # 5 Pl. Ex. 166, # 6 Pl. Ex. 167, # 7 Pl. Ex. 168, # 8 Pl. Ex. 169)(Spears, George) (Entered: 12/31/2007)
286 NOTICE of withdrawal from lawsuit by Cezar Adolfo Sontay Itzep (vs) (Entered: 01/23/2008)
275 MOTION for Leave to File Excess Pages by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Memorandum In Support, # 2 Text of Proposed Order)(Stine, James) (Entered: 01/11/2008)
276 RESPONSE re 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/11/2008)
277 RESPONSE re 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/11/2008)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 30 of 40

01/11/2008 01/11/2008
01/11/2008
01/11/2008 01/11/2008
01/11/2008 01/11/2008 01/16/2008 01/16/2008 01/24/2008 01/28/2008 01/28/2008 01/29/2008 01/29/2008

278 RESPONSE re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/11/2008)
279 Response to Statement of Material Facts re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller, 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses, 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements Defendants' Response to Plaintiffs' Statement of Undisputed Material Facts filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Affidavit Jerry Eller)(Stine, James) (Entered: 01/11/2008)
280 Statement of Material Facts re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller, 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses, 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements Defendants' Statement of Additional Disputed Material Facts filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/11/2008)
281 MOTION for Leave to File Excess Pages by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 01/11/2008)
282 RESPONSE in Opposition re 195 MOTION for Partial Summary Judgment, 190 MOTION for Partial Summary Judgment filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl Ex 150, # 2 Exhibit Pl Ex 151, # 3 Exhibit Pl Ex 152, # 4 Exhibit Pl Ex 153, # 5 Exhibit Pl Ex 154, # 6 Exhibit Pl Ex 155, # 7 Exhibit Pl Ex 156, # 8 Exhibit Pl Ex 157, # 9 Exhibit Pl Ex 158, # 10 Exhibit PL Ex 159, # 11 Exhibit Pl Ex 160, # 12 Exhibit Pl Ex 161, # 13 Exhibit Pl Ex 162)(Spears, George) (Entered: 01/11/2008)
283 Response to Statement of Material Facts re 195 MOTION for Partial Summary Judgment filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/11/2008)
284 Statement of Material Facts re 195 MOTION for Partial Summary Judgment Plaintiffs' Statement of Additional Material Facts filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/11/2008)
285 NOTICE Of Filing Opt out forms by Eller and Sons Trees, Inc., Jerry Eller (Attachments: # 1 Exhibit Opt out forms)(Stine, James) (Entered: 01/16/2008)
287 NOTICE of withdrawal from lawsuit by Marlyn Guerra, Edin Guerra, Alvin Guerra. (vs) (Entered: 01/24/2008)
288 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' Response To Plaintiffs' Fourth Requests For Production Of Documents (Oliver, Paul) (Entered: 01/24/2008)
289 MOTION for Leave to File Excess Pages related to Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/28/2008)
290 MOTION for Leave to File Excess Pages Related to Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment Related to Unreimbursed Expenses by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/28/2008)
291 REPLY BRIEF re 195 MOTION for Partial Summary Judgment To Plaintffs Opposition filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Affidavit Declaration of J. Larry Stine)(Stine, James) (Entered: 01/29/2008)
292 MOTION for Leave to File Excess Pages Limitation by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Text of Proposed Order Order)(Stine, James) (Entered: 01/29/2008)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 31 of 40

01/29/2008 01/30/2008 01/30/2008 01/30/2008 01/31/2008 01/31/2008 01/31/2008 01/31/2008 01/31/2008 01/31/2008 01/31/2008 02/13/2008 02/14/2008
02/25/2008
02/25/2008

293 RESPONSE re 284 Statement of Material Facts To Plaintiffs Motion For Partial Summary Judgment filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 01/29/2008)
Submission of 274 Second MOTION to Compel Responses to Interrogatories, submitted to District Judge Clarence Cooper. (vs) (Entered: 01/30/2008)
Submission of 273 MOTION for Leave to File Excess Pages, submitted to District Judge Clarence Cooper. (vs) (Entered: 01/30/2008)
Submission of 281 MOTION for Leave to File Excess Pages, 275 MOTION for Leave to File Excess Pages, submitted to District Judge Clarence Cooper. (vs) (Entered: 01/30/2008)
294 REPLY BRIEF re 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 01/31/2008)
295 REPLY BRIEF re 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 170, # 2 Exhibit Plaintiffs' Exhibit 171)(Spears, George) (Entered: 01/31/2008)
296 REPLY BRIEF re 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 174, # 2 Exhibit Plaintiffs' Exhibit 175)(Spears, George) (Entered: 01/31/2008)
297 NOTICE of Appearance by Paul Oliver on behalf of Eller and Sons Trees, Inc., Jerry Eller (Oliver, Paul) (Entered: 01/31/2008)
298 MOTION for Leave to File to allow late filed opposition to motion to compel with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Oliver, Paul) (Entered: 01/31/2008)
299 RESPONSE in Opposition re 274 Second MOTION to Compel Responses to Interrogatories filed by Eller and Sons Trees, Inc., Jerry Eller. (Oliver, Paul) (Entered: 01/31/2008)
300 RESPONSE re 280 Statement of Material Facts, Plaintiffs' Response to Defendants' Statement of Additional Disputed Material Facts filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 172, # 2 Exhibit Plaintiffs' Exhibit 173)(Spears, George) (Entered: 01/31/2008)
301 NOTICE by Escolastico De Leon−Granados re 291 Reply Brief, 195 MOTION for Partial Summary Judgment Notice of Objection to Admission of Hearsay Affidavits (Spears, George) (Entered: 02/13/2008)
302 MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief, # 2 Exhibit Pl Ex 176, # 3 Exhibit Pl Ex 177, # 4 Errata Pl Ex 178, # 5 Exhibit Pl Ex 179, # 6 Exhibit Pl Ex 180, # 7 Exhibit Pl Ex 181, # 8 Exhibit 182, # 9 Exhibit Pl Ex 183, # 10 Exhibit Pl Ex 184, # 11 Exhibit 185, # 12 Exhibit Pl Ex 186, # 13 Exhibit Pl Ex 187, # 14 Exhibit Pl Ex 188)(Spears, George) (Entered: 02/14/2008)
Submission of 290 MOTION for Leave to File Excess Pages Related to Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment Related to Unreimbursed Expenses, 289 MOTION for Leave to File Excess Pages related to Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller, submitted to District Judge Clarence Cooper. (vs) (Entered: 02/25/2008)
Submission of 208 Third MOTION for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements, 207 Second MOTION for Partial Summary Judgment Related to Reimbursement of Expenses, 190 MOTION for Partial Summary Judgment, 195 MOTION for Partial Summary Judgment, 173 First MOTION for Partial Summary Judgment Finding Employer Status of Defendant Jerry Eller, submitted to District Judge Clarence Cooper. (vs) (Entered:

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 32 of 40

02/25/2008 02/28/2008 02/29/2008 03/03/2008 03/06/2008 03/07/2008 03/07/2008
03/07/2008 03/14/2008
03/18/2008 03/18/2008 03/19/2008 03/28/2008

02/25/2008)
Submission of 292 MOTION for Leave to File Excess Pages Limitation, submitted to District Judge Clarence Cooper. (vs) (Entered: 02/25/2008)
303 NOTICE Of Filing Supplemental Authority In Support of Plaintiffs' Motion for Partial Summary Judgment related to un−reimbursed expenses by Escolastico De Leon−Granados re (Attachments: # 1 Exhibit Pl Ex 189)(Spears, George) Modified on 2/29/2008 (vs). (Entered: 02/28/2008)
304 Unopposed MOTION for Extension of Time To File Responsive Pleadings by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 02/29/2008)
305 ORDER granting 304 Motion for Extension of Time through March 7, 2008, to respond to plas' Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief. Signed by Judge Clarence Cooper on 3/3/08. (vs) (Entered: 03/05/2008)
Submission of 298 MOTION for Leave to File to allow late filed opposition to motion to compel, submitted to District Judge Clarence Cooper. (vs) (Entered: 03/06/2008)
306 MOTION for Leave to File Excess Pages with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 03/07/2008)
307 RESPONSE re 302 MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit A − Woods Deposition, # 3 Exhibit B − Recinos Depo., # 4 Exhibit C−Rubio Deposition, # 5 Exhibit D − Brown Deposition)(Stine, James) (Entered: 03/07/2008)
308 RESPONSE re 301 Notice (Other) To Plaintiffs' Objection To Affidavits filed by Eller and Sons Trees, Inc., Jerry Eller. (Oliver, Paul) (Entered: 03/07/2008)
309 Unopposed MOTION for Extension of Time File Reply Brief re: 302 MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 03/14/2008)
310 ORDER granting (nunc pro tunc) 273 Motion for Leave to File Excess Pages; granting 281 Motion for Leave to File Excess Pages; granting 289 Motion for Leave to File Excess Pages; granting 290 Motion for Leave to File Excess Pages. Signed by Judge Clarence Cooper on 3/18/08. (vs) (Entered: 03/19/2008)
311 ORDER granting (nunc pro tunc) 306 Motion for Leave to File Excess Pages; granting 275 Motion for Leave to File Excess Pages; granting 292 Motion for Leave to File Excess Pages. Signed by Judge Clarence Cooper on 3/18/08. (vs) (Entered: 03/19/2008)
312 ORDER granting 309 Motion for Extension of Time through March 28, 2008, to file reply brief re Motion to Strike Forms to Withdraw From Lawsuit. Signed by Judge Clarence Cooper on 3/19/08. (vs) (Entered: 03/20/2008)
313 REPLY BRIEF re 302 MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl Ex 190, # 2 Affidavit Pl Ex 191, # 3 Exhibit Pl Ex 192)(Spears, George) (Entered: 03/28/2008)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 33 of 40

04/03/2008
04/28/2008 05/09/2008 05/09/2008 05/09/2008 05/26/2008 05/27/2008 05/30/2008 05/30/2008
06/10/2008 06/18/2008 06/23/2008
06/23/2008 07/01/2008

Submission of 302 MOTION Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief MOTION to Strike 158 Notice (Other), 159 Notice (Other) Motion to Strike Forms to Withdraw From Lawsuit and for Other Relief, submitted to District Judge Clarence Cooper. (vs) (Entered: 04/03/2008)
314 Notice for Leave of Absence for the following date(s): 6/23/08−7/3/08, by George Brian Spears. (Spears, George) (Entered: 04/28/2008)
315 MOTION for Leave to File Excess Pages with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 05/09/2008)
316 MOTION for Sanctions Pursuant to 28 U.S.C. Section 1927 with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Memorandum in Support, # 2 Exhibit List, # 3 Exhibit, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C)(Stine, James) (Entered: 05/09/2008)
317 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Motion and Memorandum of Law in Support for Sanctions Pursuant to 28 U.S.C. Section 1927 (Stine, James) (Entered: 05/09/2008)
318 RESPONSE in Opposition re 316 MOTION for Sanctions Pursuant to 28 U.S.C. Section 1927 filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 05/26/2008)
Submission of 316 MOTION for Sanctions Pursuant to 28 U.S.C. Section 1927, 315 MOTION for Leave to File Excess Pages, submitted to District Judge Clarence Cooper. (vs) (Entered: 05/27/2008)
319 MOTION for Leave to File Excess Pages for Defendants' Motion to Strike Plaintiffs' Expert Report with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Text of Proposed Order)(Stine, James) (Entered: 05/30/2008)
320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Memorandum in Support of Motion to Strike, # 2 Exhibit List, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O)(Stine, James) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 05/30/2008)
321 Unopposed MOTION for Extension of Time File Opposition re: 320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 06/10/2008)
322 ORDER granting 321 Motion for Extension of Time until June 23, 2008, to File Opposition re: 320 MOTION to Strike. Signed by Judge Clarence Cooper on 6/18/08. (vs) (Entered: 06/18/2008)
323 RESPONSE in Opposition re 320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero, filed by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit Pl. Ex. 193, # 2 Exhibit Pl. Ex. 194, # 3 Exhibit Pl. Ex. 195)(Spears, George) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 06/23/2008)
324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15), with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief Memorandum of Law, # 2 Exhibit Pl. Ex. 193)(Spears, George) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 06/23/2008)
Submission of 320 MOTION to Strike, 319 MOTION for Leave to File Excess Pages for Defendants' Motion to Strike Plaintiffs' Expert Report, submitted to District Judge Clarence Cooper. (vs) (Entered: 07/01/2008)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 34 of 40

07/10/2008 07/11/2008 07/11/2008 07/11/2008 07/14/2008 07/14/2008 07/28/2008 08/05/2008 08/21/2008 08/21/2008 09/23/2008 09/30/2008 10/07/2008
10/15/2008

325 NOTICE of Change of Address for James M. Knoepp, counsel for opt−in Plaintiffs (Knoepp, James) Modified on 7/11/2008 to edit text to more accurately reflect document filed(vs). (Entered: 07/10/2008)
326 RESPONSE in Opposition re 324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15), filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 07/11/2008)
327 REPLY to Response to Motion re 320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero, filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) Modified on 7/14/2008 to update and clarify docket text (alc). (Entered: 07/11/2008)
328 MOTION for Leave to File Excess Pages in Reply Brief with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 Text of Proposed Order Order)(Stine, James) (Entered: 07/11/2008)
Submission of 324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15), submitted to District Judge Clarence Cooper. (alc) (Entered: 07/14/2008)
329 NOTICE of Appearance by James Larry Stine on behalf of Eller and Sons Trees, Inc., Jerry Eller (Stine, James) (Entered: 07/14/2008)
330 RESPONSE in Support re 324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15) MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15) filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 07/28/2008)
Submission of 328 MOTION for Leave to File Excess Pages Limitation, submitted to District Judge Clarence Cooper. (vs) (Entered: 08/05/2008)
331 ORDER granting 315 Motion for Leave to File Excess Pages, the local rules are hereby waived with respect to Defendants' Motion for Sanctions Pursuant to 28 U.S.C. § 1927 totaling approximately twenty−nine (29) pages in length. Signed by Judge Clarence Cooper on 8/21/08. (smg) (Entered: 08/21/2008)
332 ORDER granting 328 Motion for Leave to File Excess Pages, the local rules are hereby waived with respect to Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Strike Plaintiffs' Expert Witness Jorge Rivero totaling approximately sixteen (16) pages in length. Signed by Judge Clarence Cooper on 8/21/08. (smg) (Entered: 08/21/2008)
333 Notice for Leave of Absence for the following date(s): 10/15/08−10/17/08; 10/24/08−10/27/08; 11/3/08−11/4/08; 12/11/08−12/12/08; 12/30/08−1/6/09, by George Brian Spears. (Spears, George) (Entered: 09/23/2008)
334 ORDER granting 274 Motion to Compel ; denying 298 Motion for Leave to File; denying w/o prejudice 302 Motion to Strike. Signed by Judge Clarence Cooper on 9/30/08. (vs) (Entered: 10/01/2008)
335 ORDER granting 173 Motion for Partial Summary Judgment; granting in part and denying as moot in part 190 Motion for Partial Summary Judgment; granting in part and denying as moot in part 195 Motion for Partial Summary Judgment; granting 207 Motion for Partial Summary Judgment; denying 208 Motion for Partial Summary Judgment; denying 316 Motion for Sanctions. In connection with Plaintiffs Motion for Partial Summary Judgment Related to Unreimbursed Expenses, Plaintiffs and opt−in Plaintiffs are entitled to partial summary judgment in the amount of $53,890.86 and are hereby AWARDED the same. Signed by Judge Clarence Cooper on 10/7/08. (vs) Modified on 11/4/2009 (vs).11/4/2009 377 ORDER AMENDING JUDGMENT ENTERED: Plaintiffs and opt−in Plaintiffs are entitled to partial summary judgment in the amount of $57,001.28,rather than $53,890.86, and are hereby AWARDED the same Modified on 11/4/2009 (vs). (Entered: 10/08/2008)
336 CERTIFICATE OF SERVICE filed by Eller and Sons Trees, Inc., Jerry Eller Defendants' Supplemental Response to Plaintiffs' Second Interrogatories Pursuant

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 35 of 40

10/16/2008 10/20/2008
10/27/2008
10/29/2008 10/30/2008
11/03/2008 11/04/2008 11/06/2008 11/07/2008 12/01/2008 12/09/2008 12/09/2008 12/24/2008 12/26/2008 12/30/2008

to Court Order (Stine, James) (Entered: 10/15/2008)
337 ORDER granting 319 Motion for Leave to File Excess Pages, nunc pro tunc, for good cause shown. Signed by Judge Clarence Cooper on 10/16/2008. (gar) (Entered: 10/17/2008)
338 NOTICE of Hearing on Motion re: 320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero, 324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15) MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15) Motion Hearing set for 11/3/2008 09:30 AM before Judge Clarence Cooper. (pds) (Entered: 10/20/2008)
339 NOTICE of Hearing on Motion re: 320 MOTION to Strike Plaintiff's Expert Witness Jorge Rivero, 324 MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15) MOTION to Strike Affidavit of Expert Witness Dan Bremer (Doc. 320−15). Motion Hearing reset for 11/12/2008 09:30 AM before Judge Clarence Cooper. (pds) (Entered: 10/27/2008)
340 NOTICE by Eller and Sons Trees, Inc., Jerry Eller Joint Notice to Withdraw Motions (Stine, James) (Entered: 10/29/2008)
341 ORDER terminating 320 Motion to Strike ; terminating 324 Motion to Strike. The Court hereby VACATES the Notice of Hearing 339 issued on October 27, 2008, and removes from its calendar the hearing on Defendants Motion to Strike Plaintiffs Expert Witness Jorge Rivero 320 and Plaintiffs Motion to Strike the Affidavit of Expert Witness Dan Bremer 324 . Signed by Judge Clarence Cooper on 10/30/08. (vs) (Entered: 10/30/2008)
342 MOTION to Strike 307 Response to Motion,, 313 Reply Brief,, 334 Order on Motion to Compel, Order on Motion for Leave to File, Order on Motion to Strike Renewed Motion to Strike by Escolastico De Leon−Granados. (Spears, George) (Entered: 11/03/2008)
343 MOTION for Appeal under 1292(b) with Brief In Support by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 11/04/2008)
344 MOTION for Extension of Time to File Response to Defendants' Motion for Certification of Interlocutory Appeal by Escolastico De Leon−Granados. (Spears, George) (Entered: 11/06/2008)
345 ORDER granting 344 Motion for Extension of Time. Plaintiffs shall have through and including December 8, 2008, to file their response to Defendants Motion for Certification of Interlocutory Appeal. Signed by Judge Clarence Cooper on 11/7/08. (vs) (Entered: 11/07/2008)
Submission of 342 MOTION to Strike 307 Response to Motion,, 313 Reply Brief,, 334 Order on Motion to Compel, Order on Motion for Leave to File, Order on Motion to Strike Renewed Motion to Strike, submitted to District Judge Clarence Cooper. (vs) (Entered: 12/01/2008)
Notification of Docket Correction re 346 Response in Opposition to Motion. Docket entry contains incorrect PDF attachment. Document to be re−filed with corrected PDF. (vs) (Entered: 12/09/2008)
347 RESPONSE in Opposition re 343 MOTION for Appeal under 1292(b) filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 12/09/2008)
Submission of 343 MOTION for Appeal under 1292(b), submitted to District Judge Clarence Cooper. (gar) (Entered: 12/24/2008)
348 MOTION for Extension of Time File Reply Brief re: 343 Motion for Appeal under 1292(b) by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) Modified on 12/29/2008 to correct document link and filer information (gar). (Entered: 12/26/2008)
349 ORDER granting 348 Motion for Extension of Time. Dfts' reply to plas' Opposition to Motion for Interlocutory Appeal shall be extended to 1/9/09. Signed by Judge Clarence Cooper on 12/30/08. (vs) (Entered: 12/30/2008)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 36 of 40

01/08/2009 01/10/2009 02/05/2009 02/12/2009 04/10/2009 04/10/2009 06/19/2009 07/15/2009 07/23/2009
08/27/2009
08/27/2009 09/09/2009 09/11/2009 09/14/2009

350 REPLY to Response to Motion re 343 MOTION for Appeal under 1292(b) filed by Eller and Sons Trees, Inc., Jerry Eller. (Attachments: # 1 H−2B Final Rule)(Stine, James) (Entered: 01/08/2009)
351 MOTION for Leave to File Surreply In Opposition to Defendants' Motion for Certification of Interlocutory Appeal with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Text of Proposed Order)(Spears, George) (Entered: 01/10/2009)
Submission of 351 MOTION for Leave to File Surreply In Opposition to Defendants' Motion for Certification of Interlocutory Appeal, submitted to District Judge Clarence Cooper. (vs) (Entered: 02/05/2009)
352 NOTICE by Eller and Sons Trees, Inc., Jerry Eller of Decision of Fifth Circuit Related to Defendant's Motion for Certification of Interlocutory Appeal Under 28 USCA Section 1292(b) (Attachments: # 1 5th Circuit Decision)(Stine, James) (Entered: 02/12/2009)
353 NOTICE by Escolastico De Leon−Granados re 352 Notice (Other), 350 Reply to Response to Motion Supplemental Authority In Opposition to Defendants' Motion for Certification of Interlocutory Appeal (Attachments: # 1 Exhibit PL Ex 196, # 2 Exhibit PL Ex 197)(Spears, George) (Entered: 04/10/2009)
354 Withdrawal of Motion 351 MOTION for Leave to File Surreply In Opposition to Defendants' Motion for Certification of Interlocutory Appeal filed by Escolastico De Leon−Granados filed by Escolastico De Leon−Granados. (Spears, George) (Entered: 04/10/2009)
355 Notice for Leave of Absence for the following date(s): 7/31−8/3; 8/6−8/7; 8/28−9/2; 9/18−9/21; 10/2−10/6; 10/1510/20; 10/23; 11/4−11/9; 11/20−11/23, by George Brian Spears. (Spears, George) (Entered: 06/19/2009)
356 NOTICE by Eller and Sons Trees, Inc., Jerry Eller of Temporary Injunction Issued by Middle District of NC related to Defendants' Motion for Certification of Interlocutory Appeal Under 28 U.S.C.A Section 1292(b) (Attachments: # 1 Exhibit Westlaw Case)(Stine, James) (Entered: 07/15/2009)
357 NOTICE by Eller and Sons Trees, Inc., Jerry Eller of Decision of Fifth Circuit in Castellanos−Contreras v. Decatur Hotels, LLC Related to Defendants' Motion for Certification of Interlocutory Appeal Under 28 U.S.C.A. Section 1292(b) (Attachments: # 1 Exhibit Decision of Fifth Circuit)(Stine, James) (Entered: 07/23/2009)
358 NOTICE of Hearing on Motion re: 342 MOTION to Strike 307 Response to Motion,, 313 Reply Brief,, 334 Order on Motion to Compel, Order on Motion for Leave to File, Order on Motion to Strike Renewed Motion to Strike and 302 Motion to Strike Forms to Withdraw from Lawsuit and for Other Relief. Motion Hearing set for 9/23/2009 at 11:00 AM in ATLA Courtroom 1706 before Judge Clarence Cooper. (pds) (Entered: 08/27/2009)
359 DOCUMENT FILED IN ERRORNOTICE of Hearing on Motion re: 342 MOTION to Strike 307 Response to Motion, Renewed Motion to Strike Motion Hearing set for 9/23/2009 at 11:00 AM in ATLA Courtroom 1706 before Judge Clarence Cooper. (vs) Modified on 8/27/2009 (vs). (Entered: 08/27/2009)
360 MOTION to Strike Invalidate Rule 68 Offer of Judgment with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief, # 2 Exhibit Pls.' Ex 198 − Offer of Judgment, # 3 Exhibit Pls.' Ex. 199 − E−mail Correspondence)(Spears, George) (Entered: 09/09/2009)
361 NOTICE of TELECONFERENCE Hearing: Status Conference set for 9/16/2009 at 09:00 AM in ATLA Courtroom 1706 before Judge Clarence Cooper. (pds) (Entered: 09/11/2009)
362 MOTION 335 Order on Motion for Sanctions,,, Order on Motion for Partial Summary Judgment,,,,,,,,,,,,,, Motion to Correct Summary Judgment Order with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief, # 2 Exhibit Pls.' Ex. 200 − Affidavit of Dwight Steward)(Spears, George) (Entered:

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 37 of 40

09/16/2009 09/21/2009 09/28/2009 09/28/2009 09/29/2009
09/30/2009
09/30/2009
09/30/2009 09/30/2009 09/30/2009 09/30/2009 09/30/2009 10/02/2009 10/15/2009

09/14/2009)
363 Minute Entry for proceedings held before Judge Clarence Cooper: Telephone Conference held on 9/16/2009 (Motion hearing non−evidentiary). Counsel for Plaintiffs to prepare order with the Court's rulings andsubmit by Tuesday, Sept. 22, 2009. (Court Reporter Amanda Lohnaas)(vs) (Entered: 09/17/2009)
364 PROPOSED ORDER re: 363 Telephone Conference,. (Spears, George) (Entered: 09/21/2009)
Submission of 360 MOTION to Strike Invalidate Rule 68 Offer of Judgment, 364 Proposed Order, submitted to District Judge Clarence Cooper. (vs) (Entered: 09/28/2009)
365 RESPONSE in Opposition re 360 MOTION to Strike Invalidate Rule 68 Offer of Judgment filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 09/28/2009)
366 ORDER denying 343 Motion for Appeal under 1292(b). Plaintiffs' Motion for Partial Summary Judgment Finding Violations of AWPA Recordkeeping Requirements 208 is GRANTED. The portion of Defendants' Motion for Partial Summary Judgment seeking a determination that Defendants complied with 28 U.S.C. Sub/Sec.1821(d)(2) 190 and 195 is DENIED. Signed by Judge Clarence Cooper on 09/29/09. (fap) (Entered: 09/29/2009)
367 ORDER GRANTING in part and DENYING in part Plaintiffs' 302 Motion to Strike Forms to Withdraw from Lawsuit and for Other Relief, and GRANTING Plaintiffs' 360 Motion to Invalidate Rule 68 Offer of Judgment, for the reasons fully stated on the record during the hearing held in the above−styled action on September 30, 2009. The Court DIRECTS counsel to comply with all instructions given by the Court at the conclusion of the hearing. Signed by Judge Clarence Cooper on 9/30/2009. (tcc) (Entered: 09/30/2009)
368 AMENDED ORDER GRANTING in part and DENYING in part Plaintiffs' 302 and 342 Motion and Renewed Motion to Strike Forms to Withdraw from Lawsuit and for Other Relief, and GRANTING Plaintiffs' 360 Motion to Invalidate Rule 68 Offer of Judgment, for the reasons fully stated on the record during the hearing held in the above−styled action on September 30, 2009. The Court DIRECTS counsel to comply with all instructions given by the Court at the conclusion of the hearing (the Order [Doc. No. 367] entered previously in this action has been amended by the Court to clarify that the Court also has resolved by the rulings stated therein Plaintiffs' Renewed Motion to Strike Forms to Withdraw from Lawsuit and for Other Relief [Doc. No. 342]). Signed by Judge Clarence Cooper on 9/30/2009. (tcc) (Entered: 09/30/2009)
369 Minute Entry for proceedings held before Judge Clarence Cooper: Motion Hearing held on 9/30/2009 re 302 MOTION to Strike, 342 MOTION to Strike, 360 MOTION to Strike, (Court Reporter Amanda Lohnaas)(vs) (Entered: 10/01/2009)
370 DEPOSITION of Miguel Angel Rubio Zabala taken on 1/4/2008 by Plaintiffs (Attachments: # 1 Exhibit)(vs) Modified on 10/2/2009 (vs). (Entered: 10/02/2009)
371 DEPOSITION of Todd Brown taken on 11/19/2007 by Plaintiffs (Attachments: # 1 Exhibit)(vs) (Entered: 10/02/2009)
372 DEPOSITION of Brandy Woods taken on 1/3/2008 by Plaintiffs. (Attachments: # 1 Exhibit)(vs) (Entered: 10/02/2009)
373 DEPOSITION of Ismael Olegario Recinos taken on 11/19/2007 by Plaintiffs. (Attachments: # 1 Exhibit)(vs) (Entered: 10/02/2009)
Submission of 362 MOTION 335 Order on Motion for Sanction, Order on Motion for Partial Summary Judgment, Motion to Correct Summary Judgment Order submitted to District Judge Clarence Cooper. (vs) (Entered: 10/02/2009)
375 NOTICE Of Filing Proposed Corrective Notice by Escolastico De Leon−Granados (Attachments: # 1 Proposed Corrective Notice)(Spears, George) (Entered: 10/15/2009)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 38 of 40

11/02/2009 11/04/2009
12/01/2009
12/22/2009 12/22/2009 12/23/2009 01/11/2010 01/19/2010 01/25/2010 01/27/2010 02/23/2010 03/15/2010 04/19/2010 07/07/2010 07/22/2010 07/23/2010 07/23/2010 07/23/2010
08/06/2010
08/24/2010

376 RESPONSE re 374 Detailed Specification and Itemization of Requested Attorney Fees, Opposition To Plaintiffs Petition filed by Eller and Sons Trees, Inc., Jerry Eller. (Stine, James) (Entered: 11/02/2009)
377 ORDER Amending 335 Order on Motion for Partial Summary Judgment as follows: Plaintiffs and opt−inPlaintiffs are entitled to partial summary judgment in the amount of $57,001.28,rather than $53,890.86, and are hereby AWARDED the same. Signed by Judge Clarence Cooper on 11/4/2009. (vs) (Entered: 11/04/2009)
378 CERTIFICATE of Counsel Certificate of Mailing Corrective Notice by George Brian Spears on behalf of Escolastico De Leon−Granados (Attachments: # 1 Exhibit Pl. Ex. 201 − Corrective Notice Mailed)(Spears, George) (Entered: 12/01/2009)
379 Notice for Leave of Absence for the following date(s): 2/4−2/8/10; 3/12−3/19/10; 5/27−6/6/10; 6/30−7/7/10, by George Brian Spears. (Spears, George) (Entered: 12/22/2009)
380 DOCUMENT FILED IN ERRORNotice for Leave of Absence for the following date(s): 2/4−2/8/10; 3/12−3/19/10; 5/27−6/6/10; 6/30−7/7/10, by George Brian Spears. (Spears, George) Modified on 12/23/2009 (vs). (Entered: 12/22/2009)
Notification of Docket Correction re 380 Leave of Absence. Document is duplicate of docket entry 379 . (vs) (Entered: 12/23/2009)
382 NOTICE Of Filing re Apolinario Gomez Rivas (vs) (Entered: 01/27/2010)
381 NOTICE Of Filing re Nicolas Perez Domingo (vs) (Entered: 01/27/2010)
383 NOTICE Of Filing re Jose' Perez Domingo (vs) (Entered: 01/27/2010)
384 NOTICE Of Filing re Esai Matias Herrera (vs) (Entered: 01/29/2010)
385 NOTICE Of Filing by Escolastico De Leon−Granados (Attachments: # 1 Opt−Out Form Of Diego Estanislae Pablo Martinez)(Spears, George) (Entered: 02/23/2010)
386 NOTICE Of Filing Exclusion Form by Romiro Hernandez Perez. (aaq) (Entered: 03/16/2010)
387 NOTICE Of Filing Exclusion Form by Mario Morales Mendez. (aaq) (Entered: 04/20/2010)
388 Notice for Leave of Absence for the following date(s): 8/11−8/13/10; 9/22−9/24/10; 10/5/10; 10/27−10/29/10; 11/22−11/26/10; 12/22/10−1/3/11, by George Brian Spears. (Spears, George) (Entered: 07/07/2010)
389 NOTICE Of Filing Second Amended Complaint by Escolastico De Leon−Granados (Attachments: # 1 Exhibit Pl. Ex. 201 − Written Consent, # 2 Second Amended Complaint)(Knoepp, James) (Entered: 07/22/2010)
390 NOTICE of Hearing:Evidentiary Hearing on Damages set for 9/15/2010 at 09:30 AM in ATLA Courtroom 1706 before Judge Clarence Cooper. (vs) (Entered: 07/23/2010)
391 STATUS REPORT by Escolastico De Leon−Granados. (Knoepp, James) (Entered: 07/23/2010)
392 Minute Entry for proceedings held before Judge Clarence Cooper: Telephone Conference held on 7/23/2010. Discussed proposal regarding damages determination. Plaintiff to submit proposal in writing by Monday, July 26. (Court Reporter Amanda Lohnaas)(aaq) (Entered: 07/26/2010)
393 MOTION to Award Statutory Damages with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief in Support of Motion to Award Statutory Damages, # 2 Affidavit of Dr. Dwight Steward)(Knoepp, James) Modified on 8/9/2010 to edit text. (aaq). (Entered: 08/06/2010)
Submission of the 393 MOTION to Award Statutory Damages to District Judge Clarence Cooper. (aaq) (Entered: 08/24/2010)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 39 of 40

08/26/2010 08/30/2010 09/13/2010 09/24/2010 09/30/2010 10/07/2010
11/04/2010
11/08/2010 03/15/2011 07/11/2011 06/11/2012 06/12/2012 06/12/2012 09/28/2012
10/04/2012 10/19/2012 10/22/2012

394 STIPULATION Regarding Actual Damages Related to Claims Determined on Summary Judgment by Escolastico De Leon−Granados. (Attachments: # 1 Exhibit A)(Knoepp, James) (Entered: 08/26/2010)
395 RESPONSE re 393 MOTION to Award Statutory Damages filed by Jerry Eller, Eller and Sons Trees, Inc.. (Stine, James) (Entered: 08/30/2010)
396 REPLY to Response to Motion re 393 MOTION to Award Statutory Damages filed by Escolastico De Leon−Granados. (Knoepp, James) (Entered: 09/13/2010)
397 SUGGESTION OF BANKRUPTCY filed by Jerry Eller, Eller and Sons Trees, Inc. of Defendant Jerry Eller (Attachments: # 1 Exhibit Notice of Filing)(Stine, James) Modified on 9/27/2010 to edit event text. (aaq). (Entered: 09/24/2010)
399 NOTICE of Chapter 7 Bankruptcy Case, Meeting of Creditors &Deadlines. (aaq) (Entered: 10/08/2010)
398 NOTICE of TELECONFERENCE Hearing: Status Conference set for 10/28/2010 at 10:00 AM before Judge Clarence Cooper.(STATUS CONFERENCE IS AS TO PLAINTIFFS AND DEFENDANT ELLER AND SONS TREES, INC., ONLY)(vs) (Entered: 10/07/2010)
400 Minute Entry for proceedings held before Judge Clarence Cooper: Status Conference held on 11/4/2010. Litigation will proceed as to defendant Eller and Sons Trees, Inc., not withstanding its administrative dissolution. (Court Reporter Amanda Lohnaas)(aaq) (Entered: 11/04/2010)
401 Notice for Leave of Absence for the following date(s): 2/24−2/28/11, 3/11−3/18/11, 4/6−4/9/11, by George Brian Spears. (Spears, George) (Entered: 11/08/2010)
402 NOTICE to File Claims filed by USBC. (aaq) (Entered: 03/15/2011)
403 Notice for Leave of Absence for the following date(s): 7/21−7/22/11, 7/29/11, 8/19−8/22/11, 9/8−9/22/11, 10/13−10/14/11, 10/21−10/24/11, by George Brian Spears. (Spears, George) (Entered: 07/11/2011)
404 ORDER of United States Bankruptcy Court for the District of Montana re: ORDER APPROVING SETTLEMENT. (mdy) (Entered: 06/12/2012)
NOTICE of Undeliverable Electronic Mail re: 404 Order from Other Court. Mail returned for Andrew H. Turner due to no longer employed with agency. (aar) (Entered: 06/12/2012)
NOTICE of Undeliverable Electronic Mail re: 404 Order from Other Court. Mail returned for Kelley Bruner due to no longer employed with the agency. (aar) (Entered: 06/12/2012)
405 ORDER GRANTING Plaintiffs' 393 Motion to Award Statutory Damages and AWARDS Plaintiffs $499,858.74 in statutory damages pursuant to 29 U.S.C. § 1854(c)(1). Signed by Judge Clarence Cooper on 9/28/2012. (tcc) (Entered: 10/01/2012)
406 NOTICE of TELECONFERENCE Hearing: Status Conference set for 10/22/2012 at 10:00 AM in ATLA Courtroom 1706 before Judge Clarence Cooper. (vs) (Entered: 10/04/2012)
407 Unopposed MOTION for Judgment with Brief In Support by Escolastico De Leon−Granados. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Knoepp, James) (Entered: 10/19/2012)
408 Minute Entry for proceedings held before Judge Clarence Cooper: Status Conference held on 10/22/2012.The parties stipulate to the dismissal of the AWPA claim brought under 29 U.S.C. § 1821 (d)(2). Plaintiffs are withdrawing their fee petition [Doc. No. 374]. Once stipulation of dismissal and notice of withdrawal of the fee petition are filed, the Court will enter a final judgment in the case. (Court Reporter Amanda Lohnaas)(tcc) (Entered: 10/23/2012)

Case: 1:05-cv-1473 As of: 02/19/2013 11:54 PM EST 40 of 40

10/26/2012 10/26/2012 10/26/2012 10/29/2012
10/29/2012

409 NOTICE by Escolastico De Leon−Granados of Withdrawal of Motion for Attorneys' Fees and Costs (Knoepp, James) (Entered: 10/26/2012)
410 STIPULATION of Dismissal of Claims Brought Pursuant to 29 U.S.C. 1821(d)(2) by Escolastico De Leon−Granados. (Knoepp, James) (Entered: 10/26/2012)
411 STIPULATION of Dismissal AMENDED Stipulation of Dismissal of Claims Filed Pursuant to 29 U.S.C. 1821(d)(2) by Escolastico De Leon−Granados. (Knoepp, James) (Entered: 10/26/2012)
412 FINAL JUDGMENT entered in favor of the three named Plaintiffs and the twenty−three (23) additional opt−in Plaintiffs and against Eller and Sons Trees, Inc. and Jerry Albert Eller. Signed by Judge Clarence Cooper on 10/29/2012. (tcc) (Entered: 10/29/2012)
Civil Case Terminated. (tcc) (Entered: 10/29/2012)

 
 497 F.3d 1214 (2007)
Escolastico DE LEON-GRANADOS, Rene Villatoro-De Leon, et al., Plaintiffs-Appellees, v.
ELLER AND SONS TREES, INC., Jerry Eller, Defendants-Appellants.
No. 06-15876.
United States Court of Appeals, Eleventh Circuit.
August 31, 2007.
12156 *1215 *1216 James L. Stine, Elizabeth K. Dorminey, Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., Atlanta, GA, for Defendants-Appellants.
James M. Knoepp, Legal Justice Ctr., Charlottesville, VA, Andrew Hess Turner, Mary C. Bauer, Southern Poverty Law Ctr., Montgomery, AL, George Brian Spears, Law Office of Brian Spears, Atlanta, GA, for PlaintiffsAppellees.
Before DUBINA and BLACK, Circuit Judges, and RESTANI,[*] Judge.
BLACK, Circuit Judge:
This is an interlocutory appeal from the district court's grant of class certification. The Appellees, migrant workers, claim Eller & Sons Trees, Inc. (Eller & Sons) and Jerry Eller (collectively, the Appellants) violated their rights under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872 (AWPA) and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA), during their employment at Eller & Sons at various times from June 1999 through June 2005. On appeal, the Appellants contend the district court abused its discretion in certifying, under Fed.R.Civ.P. 23(b)(3), the Appellees' proposed class consisting of over 1,500 migrant workers admitted to the United States under the H-2B temporary foreign worker visa program to work at Eller & Sons, see 8 U.S.C. § 1101(a)(15)(H)(ii)(b), and sub-class consisting of those workers who pledged collateral with Eller & Sons' agents in order to obtain employment. We hold the district court did not abuse its discretion in certifying the Rule 23(b)(3) class and sub-class. Accordingly, we affirm the district court's certification order and remand for further proceedings.
I. BACKGROUND
Eller & Sons is a small business in Franklin, Georgia, that provides reforestation and forestry services. Most of 1217 Eller & Sons' employees plant trees in the *1217 southern United States during December, January, and
February. Employees are recruited from Guatemala, Honduras, and Mexico and hired under the H2-B nonimmigrant visa program, which permits employers to hire foreign workers to come to the United States and perform temporary non-agricultural services on a one-time, seasonal, peakload or intermittent basis when qualified U.S. workers are not available. 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Employers of H-2B guestworkers are required to pay them an hourly prevailing wage rate, which is determined by the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The workers allege the average wage rate at which Eller & Sons was certified to pay the H-2B workers was $8.32/hour, well above the $5.15/ hour federal minimum wage rate.
The appellee-migrant workers were employed by Eller & Sons at various times from June 1999 through June 2005. On June 6, 2005, the workers filed suit on behalf of themselves and all others similarly situated against Eller & Sons and Jerry Eller, asserting claims under the AWPA and FLSA. They filed an Amended Complaint (Complaint) on February 7, 2006. In Count I of the Complaint, the workers alleged Eller & Sons violated the AWPA by (1) failing to reimburse travel, recruitment and visa processing expenses, (2) maintaining and providing false and inaccurate records of hours worked, (3) failing to pay them the applicable prevailing wage rate and

overtime wages, (4) failing to provide them with promised full-time employment, (5) knowingly providing them with false and misleading information regarding the terms and existence of employment, and (6) requiring a sub-class of workers to post collateral in the form of the deeds to their property to obtain employment. In Count II of their Complaint, the workers alleged Eller & Sons violated the FLSA by failing to pay them the applicable minimum wage of $5.15/hour and overtime wages for hours worked.
The workers initially moved for class certification of their AWPA claims on June 29, 2005. On July 27, 2005, they filed a motion for preliminary certification of a collective action for their claims under the FLSA. On October 18, 2005, the district court issued an order denying the motion for class certification of the AWPA claims without prejudice and instructing the parties to conduct additional discovery on issues pertaining to class certification. In the same order, the court granted preliminary certification of a collective action under 29 U.S.C. § 216(b) for the FLSA claims. According to the Appellants, opt-in notices for the FLSA collective action were sent to approximately 1,800 current and former employees of Eller & Sons. Only 30 of the potential class members, in addition to the 5 named plaintiffs, completed and returned their opt-in forms before the time period closed.
On January 31, 2006, the workers filed a renewed motion for class certification under Fed. R. Civ P. 23(b)(3) for the AWPA claims, seeking to represent a class consisting of "all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in [Eller & Sons'] forestry operations from June 1999 until the present." They also proposed a sub-class of "all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in [Eller & Sons'] forestry operations from January 1, 2003 until the present, who pledged collateral with [Eller & Sons'] agents in order to obtain employment with the [Eller & Sons]."
On September 28, 2006, the district court granted the motion to certify under Fed. R. Civ P. 23(b)(3). The court 1218 rejected the Appellants' argument that a 29 *1218 U.S.C. § 216(b) collective action would be a superior method
of adjudicating the workers' AWPA claims, finding that a § 216(b) collective action would not adequately address the workers' AWPA claims. The district court also found the workers satisfied their burden to establish the existence of the Rule 23 prerequisites. The Appellants filed a timely appeal, asking us to determine whether the district court abused its discretion in granting class certification.[1]
II. STANDARD OF REVIEW
"Questions concerning class certification are left to the sound discretion of the district court." Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir.2004). Accordingly, we review a district court's class certification order for abuse of discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006).
III. DISCUSSION
On appeal, the Appellants argue the district court abused its discretion in granting class certification. The Appellants claim this action is based on the FLSA and must therefore be adjudicated as an opt-in collective action under 29 U.S.C. § 216(b) instead of an opt-out Rule 23(b)(3) class action. Alternatively, the Appellants argue that even if a Rule 23 class action is not precluded by 29 U.S.C. § 216(b), the district court abused its discretion in certifying the class because the workers failed to prove the necessary prerequisites under Rule 23. We address the Appellants' arguments in Sections A. and B., respectively.
A. Impact of 29 U.S.C. § 216(b)
The Appellants maintain that the bulk of the purported AWPA claims are derived from alleged FLSA violations and must therefore be brought in a collective action. Section 216(b) of the FLSA provides that "[n]o employee shall be a party plaintiff to any action [for unpaid wages] unless he gives his consent in writing to become such a party 1219 and such consent is filed in the court in which such action is brought."[2]*1219 Thus, in an FLSA action, a partyplaintiff must opt into an action, whereas in a Rule 23(b)(3) class action, all qualifying class members become party-plaintiffs unless they opt out of the action. See Rule 23(c)(2)(B) (explaining that "the court will exclude from the class any member who requests exclusion"). The Appellants contend this distinction is crucial because only

35 of 1,800 potential FLSA collective action plaintiffs opted into the action. The Appellants claim that if we allow the AWPA claims to proceed as a Rule 23(b)(3) class action, the class could potentially consist of 6,000 plus workers.[3]
We must first examine whether the workers' AWPA claims are truly FLSA claims in disguise, as the Appellants allege. The FLSA creates a private right of action for aggrieved employees to recover unpaid minimum wages and unpaid overtime wages. 29 U.S.C. § 216(b). A review of Count I of the Complaint shows that the workers asserted six AWPA claims, of which only two seek unpaid wages. Those claims assert that the Appellants violated the AWPA by (1) failing to pay them the proper prevailing wage rate and overtime wages for all work performed and (2) failing to reimburse them for expenses they incurred which were primarily for Eller & Sons' benefit, including travel and visa processing expenses. The workers separately pled FLSA claims under Count II of the Complaint. Those claims assert that the Appellants violated the FLSA by failing to pay them the applicable minimum wage rate of $5.15/hour and overtimes wages for all hours worked.
Although both the AWPA claims and FLSA claims seek unpaid wages, they are not identical. The workers are entitled to recover the prevailing wage rate under the AWPA and only the minimum wage rate under the FLSA. Thus, the workers' AWPA wage claims are not FLSA claims in disguise and may properly be brought in a Rule 23 (b)(3) class action. Likewise, the workers' AWPA claims that do not seek unpaid wages 0907including claims based on the failure to make, keep and provide accurate work records, the failure to provide workers with promised fulltime employment, knowingly providing them with false and misleading information regarding the terms and existence of employment, and wrongfully requiring them to post deeds to their land as collateral to obtain employment0907cannot be asserted under the FLSA, and are also appropriate for an AWPA class action under Rule 23.
The statutory text of the AWPA supports our conclusion that the workers are entitled to bring their AWPA claims as a Rule 23 class action. Its private right of action provision provides that "if [a] complaint is certified as a class action, the court shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $ 500,000 or other equitable relief." 29 U.S.C. § 1854(c)(1)(B). This contemplates that an action based on violations of the AWPA may be certified as a class action. Moreover, where Congress intended an external statute to provide the exclusive remedy for conduct that violates the AWPA, it expressly said so and limited the AWPA accordingly. For example, section 1854(d) provides that "where a State workers' compensation law is applicable and coverage is provided for a migrant or seasonal agricultural worker, the workers' compensation benefits shall be the exclusive remedy for loss of such worker under this Chapter in the case of bodily injury or death in accordance with such 1220 State's workers' compensation law." 29 U.S.C. *1220 § 1854(d). If Congress intended § 216(b) to be the exclusive remedy for violations of the AWPA's wage payment provisions, it would have also said so. Accordingly, the district court did not err in finding the AWPA claims cognizable for class action treatment.
B. Rule 23 Class Certification
The Appellants argue that even if a Rule 23 action is not precluded by 29 U.S.C. § 216(b), the district court abused its discretion in granting class certification because the Rule 23 requirements were not met. A party seeking to maintain a class action bears the burden of demonstrating that class certification is proper. Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228, 1233 (11th Cir.2000). Here, the migrant workers sought to be certified as a Rule 23(b)(3) class action. To be certified under Rule 23(b)(3), a party must first show the following:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a); see also Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir.2001). "These four requirements commonly are referred to as the prerequisites of numerosity, commonality, typicality, and adequacy of representation, and they are designed to limit class claims to those fairly encompassed by the named plaintiffs' individual claims." Piazza, 273 F.3d at 1346 (internal quotations omitted). Additionally, the party must show that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient

adjudication of the controversy." Fed.R.Civ.P. 23(b)(3); see also Rutstein, 211 F.3d at 1233. In making these determinations, a court is to consider the interest of class members in individually controlling separate actions, the extent and nature of litigation concerning the controversy already commenced, the desirability of maintaining the litigation in the particular forum, and the difficulties to be encountered in the managing the class action. Fed.R.Civ.P. 23(b)(3).
The Appellants argue the district court erred in granting class certification because (1) the Rule 23(a) prerequisites of numerosity and adequacy of representation did not exist, and (2) a class action is not the superior method for adjudication of the controversy. As a preliminary matter, we note that the Appellants did not argue before the district court that numerosity was lacking. The Appellants have, therefore, waived that argument. See, e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir.1995). The Appellants did, however, challenge the adequacy of representation before the district court, and we therefore address that argument.
The Appellants argue the class representatives are not suitable because they invoked the Fifth Amendment during their depositions when asked if they worked for other employers in the United States. The Appellants claim the negative inferences that can be drawn from the invocation of the Fifth Amendment make the named plaintiffs unsuitable class representatives. In its order granting certification, the district court acknowledged this issue, but concluded it would revisit the issue after its relevance was resolved. The court committed to continually examine the adequacy of representation of the class representatives. Keeping in mind that "questions concerning class 1221 certification are left to the sound discretion of the *1221 district court," the district court's commitment convinces us that the district court will re-examine the issue throughout the proceedings and will assure class representation is adequate. Cooper, 390 F.3d at 711. Accordingly, at this stage in the proceedings, we conclude the court did not abuse its discretion in finding adequacy of representation.
Lastly, the Appellants argue a class action is not the superior method of adjudicating the workers' AWPA claims because a highly individualized assessment of the facts will be necessary to determine the amount of hours each employee worked compared to the amount recorded. We recognize this is a valid concern, but nonetheless conclude the district court did not abuse its discretion in granting class certification. We note that under the AWPA, aggrieved workers are entitled to recover either actual damages or statutory damages of up to $500 per plaintiff. 29 U.S.C. § 1854(c). While it is not clear from the complaint whether the workers seek actual or statutory damages, it is within the district court's discretion to award statutory damages where proof of actual damages is scarce. See id. The award of statutory damages would eliminate the need to determine individualized damages based on actual hours worked.
IV. CONCLUSION
The district court did not abuse its discretion in certifying a Rule 23(b)(3) class to adjudicate the workers' AWPA claims. The Appellants failed to prove the AWPA claims were required to be brought as an FLSA collective action. Moreover, given the district court's commitment to continually monitor the appropriateness of a class action, the district court did not abuse its discretion in finding that the Rule 23 pre-requisites were met. Accordingly, we affirm the district court's certification order.
AFFIRMED.
[*] Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.
[1] The same day it issued the class certification order, the district court issued a discovery order in which it held that the applicable statute of limitations for the AWPA claims is six years. The Appellants also argue on appeal the district court erred in establishing this statute of limitations. This issue is not properly before us, however. With limited exceptions, the federal courts of appeals have jurisdiction to hear appeals only "from . . . final decisions of the district courts of the United States." 28 U.S.C. § 1291 (emphasis added). Although Fed.R.Civ.P. 23(f) permits us to review "an order of a district court granting or denying class action certification," the district court's finding on the applicable statute of limitations was made in a separate discovery order. The jurisdiction granted by Rule

23(f) does not extend to this separate order. Further, the Appellants have not argued any other exception to our limited review of interlocutory orders. Thus, we do not have jurisdiction to consider the statute of limitations issue.
[2] See also 29 C.F.R. § 790.20. That regulation provides:
Section 16(b) of the Fair Labor Standards Act, as amended by section 5 of the Portal Act, no longer permits an employee or employees to designate an agent or representative (other than a member of the affected group) to maintain, an action for and in behalf of all employees similarly situated. Collective actions brought by an employee or employees (a real party in interest) for and in behalf of himself or themselves and other employees similarly situated may still be brought in accordance with the provisions of section 16(b). With respect to these actions, the amendment provides that no 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.
[3] It is unclear how the Appellants came up with a total of 6,000 potential class members. The Complaint alleges the class is believed to include over 1,500 individuals.
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