Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (SOUTHERN DIVISION)

DESMOND NDAMB I, 7717 Riverdale Rd. New Carrollton, MD 20784 Prince George' s County,
MBAH EMMANUEL AB!, 1431 Troon Ave. Brunswick, OH 44212,
and
NKEMTOH MOSES AWOMBANG, 3505 W. I 05 St. Apt. 303 Cleveland, OH 441 I I,
Individually and on behalf of al l others simi larly situated,
Plaintiffs,
v.
CORECJVIC, INC., 2405 York Road, Suite 20 1 Lutherville Timonium, MD 2 1093-2264 Baltimore County, Defendant.

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'nP 18

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CLASS ACTION COMPLAINT I. Plaintiffs Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang (collectively, "Plaintiffs") individually and on behalf of all others similarly situated, by and through their undersigned attorneys, bring this action against Defendant CoreCivic, Inc. ("Defendant" or "CoreCivic") for failing to pay immigrants confined in civil detention at the Cibola County Correctional Center ("Cibola") their legally mandated wages as required by the Fair Labor Standards Act ("FLSA") and the New Mexico Minimum Wage Act (''NMMWA").

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Plaintiffs a lso bring this action, individua lly and on behal f of all others s imilarly s ituated, against CoreCivic for unjust enrichment under New Mexico common law because it failed to pay Plaintiffs a fair and adequate wage, yet it received the value of their labor and retained the difference between the inadequate pay and the prevailing wage in Cibo la County.
2. CoreCivic is among the oldest and largest for-profit corrections corporations in the United States. In 2017, CoreCivic reported $ 1.84 billion in revenue, w ith 48% from contracts with federal government agencies. CoreCiv ic owns and operates Cibola, a prison complex that has faced severa l recent scandals for mistreatment and inadequate care of prisoners and civi lly detained immigrants. CoreC ivic profits from its operation ofCibo la by relyi ng heavily on a captive workforce of civilly detai ned immigrants, including Plaintiffs, to perform labor necessary to keep C ibola operationa l and provide the services it is obligated to provide under the terms of its contract w ith C ibola County, N ew Mexico. The work includes tasks such as preparing and serving meals, cleaning the facil ities, perform ing other janitoria l tasks, perform ing laundry services, and operating the library and the barber shop. CoreCiv ic sometimes hires non-detainees who live in the surrounding community to perform the same work. If Plaintiffs d id not perfo rm th is work, CoreCivic would have to hire more people from the surroundi ng community to keep C ibo la operational and pay those additiona l workers the legally mandated wages, which would be substantially hi gher than the wages actually paid to P laintiffs .
3. Despite the importance and necessity of Plaintiffs ' work to CoreCivic's business, CoreCivic has always paid them less than the legally requ ired wage for their work, and sometimes as little as one dollar per day. CoreCivic has contracted with Cibola County to operate a detention fac ility that holds civilly detained immigrants and to pay workers the
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prevailing wage in the community to operate the faci lity. By suffering or permitting Plainti ffs to perform work at its faci lity a nd for its benefit whil e paying Plaintiffs well below the m inimum wage and the prevailing wage in Cibola County, CoreCivic vio lates its service contract with the County and suppresses wages in the loca l labor market. CoreCivic's labor practices at Cibola render the company liable under the Fair Labor Standards Act, the New Mexico Min imum Wage Act, and the common law doctrine of unjust enrichment.
JURISDICTION AND VENUE 4. This Court has subj ect matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the Fair Labor Standards Act of 193 8, 29 U.S.C. § 20 I , el seq. 5. Independently, the Court has original j urisdiction pursuant to the Class Action Fairness Act of2005 ("CAFA"), 28 U.S.C. § 1332(d), because at least one class member is of diverse citizenship from Defe ndant CoreC ivic, there are more than I 00 class members, and the aggregate amount in controversy exceeds $5,000,000. 6. Additionally, the Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' pendent state law claims under the New Mexico Minimum Wage Act and unj ust enrichment under New Mexico common law. 7. This Court has personal jurisd iction over Defendant pursuant to Md. Code Ann. § 6-102 because Defendant is organized under the laws of Maryland. 8. Venue is proper in this District pursuant to 2 8 U.S.C. § 1391 (b)(2) and Md. Code Ann . § 6-1 02 because Defendant is organized under the laws ofMaryland and therefore resides in this District.
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PARTIES Plaintiffs
9. Plaintiff Desmond Ndambi is an adult resident ofNew Carro llton, Maryland. Mr. Ndambi has tiled a consent to jo in this action. See Exh. I.
I0. Mr. Ndambi was an employee of CoreCiv ic, as that term is defined by the FLSA, 29 U.S.C. § 203(e)(l) and (g), and the NMMWA, NM Stat. Ann. § 50-4-2 1. Mr. Ndambi worked for CoreCivic while detained at Cibola from approximately June to October 2017.
II . Plainti ff Mbah Emm anuel Abi is an adult resident of Brunswick, Ohio. Mr. Abi has filed a consent to join this action. See Exh. 2.
12. Mr. Abi was an emp loyee o f CoreCivic, as that term is defined by the FLSA, 29 U.S.C. § 203 (e)( I) and (g), and the NMMWA, NM Stat. Ann. § 50-4-2 1. Mr. Abi worked for CoreCivic wh ile detained at C ibo la from approximately June to November 20 17.
13. PlaintiffNkemtoh Moses Awombang is an adult resident of C leveland, Ohio. Mr. Awombang has tiled a consent to join this action. See Exh. 3.
14. Mr. Awombang was an employee ofCoreCivic, as that term is de fined by the FLSA, 29 U.S.C. § 203(e)( I) and (g), and the NMMWA, NM Stat. Ann. § 50-4-2 1. Mr. Awombang worked for CoreCivic while detained at Cibola from approximately June to December 2017. Defendant
15. Defendant CoreCiv ic, Inc., ("CoreCivic" or "Defendant") formerly Corrections Corporation of America, 1 is a real estate investment trust. CoreCivic is organ ized under the laws
1 In late 2016, the company announced it was changing its name to CoreCivic from Corrections Corporation of America. It did not otherwise change its legal identity. As a result, this complaint uses the names CoreCivic and Corrections Corporation of America interchangeably.
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of Maryland with its principal place of business at I0 Burton Hills Boulevard, Nashville, Tennessee 372 15. CoreCivic has a registered agent, The Corporation Trust, Inc., located at 2405 York Road, Suite 20 I Lutherville T imonium, Maryland 2 1093 .
16. At all relevant times, CoreCiv ic owned and operated the C ibola Coun ty Correctional Center ("Cibola") located at 2000 C ibo la Loop, M ilan, NM 8702 1, pursuant to the purported authority of a private service contract with Cibo la Coun ty, New Mexico.
17. At all relevant times, Cibola County, New Mexico maintained an Intergovernmental Service Agreement ("IGSA") w ith U.S. Immigration and Customs Enforcement ("ICE") to detain immigra nts on beha lf ofi CE.
FACTUAL ALLEGATIONS RELATED TO ALL CLAIMS 18. CoreCivi c is the second-largest private prison and detention corporation in the United States, w ith a market capi talization of nearly $3 bill ion. lt recently estimated that it owns 58% of all prison beds and manages 4 1% of a ll private pri son beds in the United States. CoreCiv ic's contracts wi th ICE to civ il ly detain immigran ts with pending removal proceedings currently account for at least 30% of its a nnua l revenues. 19. CoreCivic owns and operates Cibo la, wh ich is a civil immigration detention center and prison complex. In 20 16, C ibo la County entered into an !GSA with ICE to maintain custody of c ivilly detained immigrants. Cibo la County, in tum, entered into a service contract w ith CoreCivic in which CoreC iv ic agreed to serve as Cibo la's independent contractor fo r the care and safety of civilly detained immigrants and to opera lc Cibola in compliance w ith the terms of the !GSA between ICE and Cibo la County. 20. As an independent contractor and service provider to Cibola County, CoreC ivic drafted and supplied C ibola's staffing plan in response to a Performance Work Statement issued
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by TCE. CoreCiv ic determined the number, tasks, and pay rate of detained immigrants who would perform work.
2 1. Civilly detained immigrants are individuals held in civil detention while their immigration cases are processed. Such individual s are "administrative detainees," as they have not been charged with any criminal violation. The purpose of their detention is to ensure their presence during the administrative process and, if necessary, to ensure their availability for removal from the United States. While some civilly detained immigrants are removed from the United States after their detention, many such individuals are released from detention with permission to reside and work in the United States legally. Civil immigration detention is not punitive or corrective, it does not reflect a determination that detained immigrants have violated any laws of the United States, and it does not determine the outcome of the ir immigration cases. By law, civil detainees are the so le owners of the labor they provide.
22. Plaintiffs and those similarly situated are civilly detained immigrants previously or currently detained at Cibola.
23. Under the IGSA, Cibola County agreed to provide or procure services necessary to civilly detain immigrants. The ISGA incorporates into its terms the Service Contract Act, 41 U.S.C. § 351 et seq., thereby requiring, inter alia, that any employees providing services under the contract must be paid the prevailing wages and benefits in the locality where they are providing such services. The TGSA requires Cibola County to provide or procure all services at Cibola in compliance with " all applicable federal, state, and local laws and standards." If a conflict exists between any of these laws, regulations, or standards, the TGSA provides that "the most stringent standard shall apply."
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24. CoreCivic contracted with Cibola County to provide services necessary to civilly detain immigrants in comp liance with the terms of the IGSA , and to hire and pay workers the prevailing wage in the commun ity and in compl iance w ith the state and federal minimum wage requirements. In contrast to its contract, CoreCivic has failed to provide the civilly detained immigrants with basic necessities. CoreCivic does not have the discretion to employ civi lly detained immigrants to perform services necessary to operate Cibola and to pay them an amount less than the lega lly required wage for their work, which is sometimes as little as one dollar per day.
25. Cibola has the capacity to hold up to I, 116 civilly detained immigrants per day. The number of such immigrants in custody at Cibola at any given time from January 2017 to the present exceeded I00 persons and, at times, has exceeded 800 persons.
26. CoreCivic operates and maintains a work program at Cibola, pursuant to which it has suffered or permitted P laintiffs and those similarly situated to perform work that benefits CoreCivic. Such work provides services necessary to keep Cibola operational, including preparing and serving meals, cleaning the facilities and performing other janitorial tasks, performing laundry services, and operating the library and the barber shop. These services be ne fit CoreC ivic because they are integral to Cibo la's operation and the company' s profitable performance of its service contract with Cibola County. They are, therefore, essential to CoreCivic' s fulfilment of its obligations under its contract with Cibola County.
27. Plaintiffs and those similarly situated were CoreCivic employees under the FLSA and the NMMWA. CoreCivic supplied dai ly supervision over civilly detained imm igrants who participated in the work program, including, but not limited to, creating and continuously
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revising a facility staffing plan that accounts for the pos itions, hours, and pay of all detained immigrants who participate.
28. CoreCivic paid the Plaintiffs and those similarly situated at a rate of pay that was less than the legally required wage and sometimes as little as one dollar per day. On some occasions, Plaintiffs and those similarly situated were not paid at all for their work. In all cases, Plaintiffs and those simi larly situated were paid Jess than the minimum wage required by the FLSA and NMMWA and less than the prevailing wage for Cibola County.
29. In violation of the provisions of the !GSA, CoreCivic has failed to follow federal and state laws when compensating civi lly detained immigrants for work they perform.
30. CoreCivic has failed to provide Plaintiffs and those similarly situated with adequate facilities and basic necessities, despite its use of their labor to maintain and operate C ibola. For example, CoreCivic often served insufficient amounts of food, at unsafe temperatures, and/or without hygienic food-hand ling safeguards. CoreCivic also failed to provide adequate access to telephones and legal materials.
3 1. Plaintiffs and those simi larly situated used their wages to purchase item s, such as phone calls, food, and toiletries, that met their basic needs. CoreCivic deducted the expense of such items from the accounts ofPlaintiffs and those similarly situated.
32. CoreCivic fai led to operate Cibola in compliance with the relevant contractual requirements. For instance, a January 20 18 inspection by ICE's Office of Detention Oversight found the facility to be deficient in no fewer than 31 contractually imposed standards.
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Plaintiff Desmond Ndambi 33. Mr. Ndambi was detained at C ibola from approximately June 22, 2017, to
approximately October I, 20 17. He remained in civi l immigration detention at Cibo la whi le his immigration case was processed .
34. Shortly after arriving at Cibola, Mr. Ndambi began working as a janitor at the facility. He worked in this capacity for approximately one to three hours per day, seven days per week. CoreCivic knew that Mr. Ndambi was performing this work and permitted him to do so. Guards, who were CoreCivic employees, supervised his work, and CoreC ivic provided the cleaning supplies and tools necessary for Mr. Ndambi to perform the work. CoreCivic bene fitted from Mr. Ndambi ' s cleaning work because it was necessary to maintain the faci lity at a profit. CoreC ivic paid Mr. Ndamb i only one dollar per day for his clean ing work.
35. Around late Ju ly 20 17, Mr. Ndambi was selected to work in C ibola's library. 36. For the last approximately two months of hi s detention, Mr. Ndambi worked in the library approximately eight hours per day, five days per week. CoreCivic contro lled Mr. Ndambi's work hours through its sta ffin g plan. 37. CoreCivic knew of M r. Ndambi 's library work and permitted it. A CoreCivic employee told him when to work and escorted h im to and from his shift at the library. Another employee who lived in the community and was not confined in C ibola s upervised Mr. Ndambi' s work, assigned him tasks, and worked a longside him. G uards, who were CoreCivic employees, a lso supervised Mr. Ndambi ' s work. CoreCivic provided the library fac ility and tools necessary for Mr. Ndambi to perform the work . 38. CoreCivic usually paid Mr. Ndambi one dollar per day for his work in the library, without regard to the number of hours worked. Thus, for the approximately 40 hours per week
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he worked in the library, CoreCivic paid Mr. Ndambi $0.1 25 per hour. On several occasions, however, CoreCivic failed to pay him at all for his work.
39. Mr. N dambi 's janitorial and library work benefitted CoreC ivic by allowing it to conform to its service contract at the C ibola facility. Because it employed Mr. Ndamb i, CoreC ivic did not need to employ someone e lse (who would have been paid at rates compliant with the FLSA, the NMMWA, and the Service Contract Act) to perform the tasks that Mr. Ndambi performed.
40. Mr. Ndambi used his wages to purchase basic necessities while in detention. CoreCivic deducted the cost of such necessities from Mr. N dambi ' s account. When he was released, CoreCivic paid Mr. Ndambi the funds remaining in his account. Plaintiff Mbah Emmanuel Abi
4 1. Mr. Abi was detained at Cibola beginning ap proximately June 24, 20 17, to approximately November 22, 20 17. He remained in c ivil immigration detention at Cibola while his immigration case was processed.
42. Mr. Abi began working as a janitor at Cibola beginning in July 2017. He performed tasks such as c leaning the floors and toilets at the facility. Mr. Ab i worked in the position a pproximately two hours per day, seven days per week. CoreCivic knew of Mr. Abi's work as a janitor and permitted it. He filled out a time sheet provided by CoreC ivic that indicated how many hours he worked. G uards, who were CoreCivic employees, supervised his work, and CoreCivic provided the cleaning suppl ies and tools necessary for Mr. Abi to perform his work. Mr. Abi performed work that benefitted CoreCiv ic because it was necessary to maintain the facility at a profit. CoreCivic paid Mr. Abi one dollar per day for his janitorial work.
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43. In August 2017, Mr. Abi fi lled out an application to begin working in the k itchen at C ibola. CoreCivic hired him and, through its staffing plan, assigned him to work at least six hours per day, at least five days per week. Mr. Abi signed a time sheet indicating how many hours he worked.
44. Mr. Abi prepared and served meal s to civilly detained immigrants like himself and CoreCivic employees.
45. CoreCivic knew o f Mr. Abi ' s work in the kitchen and permitted it. Guards, who were CoreCivic employees, supervised Mr. Abi ' s work. Further, CoreCivic provided the tools and faci lities necessary for Mr. Abi to perform hi s work.
46 . Mr. Abi's work bene fitted CoreCivic because it was necessary to keep the facil ity operational and profitable, as CoreCiv ic did not emp loy or subcontract enough people w ho were not detained to run the kitchen without them. Because it employed Mr. Abi, CoreCivic did not need to employ someone else (who would have been paid at rates compliant with the FLSA, the NMMWA, and the Service Contract Act) to perform the tasks that Mr. Abi performed.
47. CoreCivic paid Mr. Ab i $ 15 per week for worldng in the ldtchen, without regard to the number of hours worked. Because he worked at least six hours per day, at least five days per week, CoreC ivic paid Mr. Abi $0.50 or less per hour.
48. Mr. Abi used his wages to purchase basic necessities w hile in detention. CoreC ivic deducted the cost of such necessities from Mr. Abi ' s account. When he was released, CoreCivic paid Mr. Abi funds rema ining in his account.
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PlaintiffNkemtoh Moses Awombang 49. Mr. Awombang was detained at C ibola beginning approximately June 20, 20 17,
until approximately December 20, 20 17. He rema ined in civil immigration detention at Cibola while his immigration case was processed .
50. Shortly after arriving at Cibola, Mr. Awombang began working as a janitor at the facility. ln this positi on, Mr. Awombang worked approximately seven days per week, several hours per day. CoreCivic knew that Mr. Awom bang was performing this work and permitted him to do so. Guards, who were CoreC ivic employees, supervised his work, and CoreCivic provided the cleaning s upplies and tools necessary to perform the work. CoreCivic benefitted from Mr. Awombang's cleaning work because it was necessary to maintain the facility at a pro fit. CoreCivic paid Mr. Awombang only one dollar per day for his cleaning work.
5 1. After approx imately two months, Mr. Awombang began working in the kitchen, w here he worked approximately five and a half to six hours per day, five days per week. CoreCivic contro lled Mr. Awombang' s work hours through its staffing plan. Mr. Awombang worked a longside people who were not deta ined. He worked in this position for approximately four months.
52. CoreCivic knew that Mr. Awombang worked in the kitchen and permitted him to do so. Guards, who were CoreCivic employees, supervi sed Mr. Awombang' s work. Further, CoreCivic provided the faci lities and tools necessary for Mr. Awombang to perform his work. CoreCivic benefitted from Mr. Awombang's kitchen work because it was necessary to keep the facility operational at a profit, as CoreCiv ic did not employ or subcontract e nough people who were not de tained to run the kitchen without them. Because it employed Mr. Awombang, CoreC ivi c did not need to employ someone else (who would have been paid at rates compliant
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w ith the FLSA, the NMMWA, and the Service Contract Act) to perform the tasks that Mr. A wombang perform ed.
53. CoreC ivic paid Mr. Awombang $ 15 per week w ithout regard to the number of hours he wo rked.
54. Mr. Awombang used his wages to purchase basic necessities whi le in dete ntion . CoreC ivic deducted the cost of such necessities from Mr. Awombang ' s account. Whe n he was re leased, CoreCivic paid Mr. Awombang funds remaining in his account.
FLSA COLLECTIVE ACTION ALLEGATIONS 55. CoreCivic failed to pay the Plainti ffs and all others sim ilarly situated the minimum wages required by the FLSA, 29 U.S.C. §§ 20 I, et seq . 56. CoreCivic failed to pay the Plaintiffs and all others s imil arly situated for a ll hours worked and fa iled to pay an effecti ve hourly rate at or above the federal min imum wage rate of $7.25 per hour through its practices of paying a fl at rate that was less than the legally required wage for their work, and sometimes as little as one dollar per day. 57. This action can, and should, be maintained as a collective action pursuant to 29 U.S.C. § 2 16(b) for all c laims to unpaid or underpa id wages and liquidated damages that can be redressed under the FLSA. 58. Plaintiffs seek certification o f these claims as a collective action on behalf of all c ivilly deta ined immigrants w ho performed w ork for CoreC ivic at Cibola through its work program at any time during the period beginning two years prior to the date on w hich th is action is fil ed and continuing to the date on which notice is issued of the opportunity to join this action. 59. Plaintiffs reserve the right to revi se the definiti on of the c lass based upon information learned after the fi ling of this action.
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60. Upon information and belief, there are hundreds of similarly situated current and former civilly deta ined immigrants at C ibo la who have been subjected to the same unlawfu l conduct that the Plaintiffs challenge herein .
61. Members o f the proposed coll ective action are similarly situated . CoreCivic civilly detained such members in the same facility, C ibo la. CoreCivic permitted such members to work, and such members did work, for the benefit ofCoreCivic but were compensated at rates below the FLSA-mandated minimum wage.
62. Members of the proposed col lective action have been subjected to the same or substantially the same pay po licies and practices.
63. Members of the proposed collective action have been subjected to the same or substantially the same policy or practice that required or permitted them to perform work for CoreCivic' s benefit, but compensated them at rates below the FLSA-mandated minimum wage.
64. The identities of the members of the proposed collective action are known to CoreCivic and can be located through CoreCivic's records.
65. Members of the proposed collective action would benefit from the issuance of Court-supervised Notice and the opportunity to j oin this lawsuit.
66. A collective action wi ll prov ide the most efficient mechanism for adjudicating the c laims ofPlaintiffs and members ofthe proposed collective action.
67. Therefore, Plaintiffs request that they be permitted to serve as representatives of those w ho consent to participate in this action and that the action be granted collective action status pursuant to 29 U.S.C. § 2 16(b).
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RULE 23 NEW MEXICO MINIMUM WAGE ACT CLASS ACTION ALLEGATIONS 68. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring class-action
claims for unpaid or underpaid wages under the NMMWA, N M Stat. Ann. §§ 50-4-2 1, et seq. 69. Plaintiffs bring th ese class-action claims on behalf of themselves and all other
c ivilly detained immigrants w ho performed work for CoreCivic at Cibola in its work program at any time from two years prior to the filin g of this action th rough the date on which notice is issued affording the ri ght to opt out of any c lass certified pursuant to Rule 23(b)(3) ("New Mexico Minimum Wage Act Class").
70. Plaintiffs reserve the right to revise the definition of the class based upon information learned after the filing of this action.
71. Plaintiffs bring these c laims on beha lf of themselves and members of the New Mex ico Minimum Wage Act C lass under Federal Rules of C ivil Procedure 23(a), (b)(2) for their requests for declaratory and injunctive re lief only, and (b)(3) for their requests for damages. The proposed New Mexico Minimum Wage Act C lass satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements ofthose rules.
72. Numerosity: The proposed class is so numerous that the joinder of all s uch persons is impracticable, and the disposition oftheir claims as a class will benefit the parties and the Court. The exact number of class members is unknown to Plaintiffs at this time, because it is within CoreCivic 's control. However, upon information and belief, the c lass comprises hundreds of members. Membership in the class is ascertainable from CoreCivic ' s detention and employment records.
73. Commonality: Plainti ffs and all members of the New Mexico Minimum Wage Act Class have been compensated using the unlawful practices alleged herein and, therefore, one
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or more questio ns of law or fact are common to the New Mexico Minimum Wage Act Class. These common questions include, but are not limited to, the following:
a. Whether CoreCivic is an employer of Plaintiffs and members of the New Mexico Minimum Wage Act Class within the meaning ofthe NMMWA;
b. Whether Plaintiffs and members of the New Mexico Minimum Wage Acl C lass are employees within the meaning ofthe NMMWA;
c. Whether CoreC ivic engaged, suffered, or permitted Pla intiffs and members of the New Mexico Minimum Wage Act Class to work on its behalf;
d. Whether the minimum wage in the NMMWA applies to Pla intiffs and members of the New Mexico Minimum Wage Act C lass;
e. Whether CoreCivic failed or refused to pay Plaintiffs and members of the New Mexico Minimum Wage Act Class the minimum wage required by the NMMWA;
74. Typicality: Plaintiffs and members of the New Mexico Minimum Wage Act Class were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages . All class members were subjected to the same compensation practices by CoreCivic, as alleged herein, that required or permitted them to perform work for CoreCivic 's benefit, but compensated them at rates be low the NMMWAmandated minimum wage. Plaintiffs' claims are therefore typical of the claims that could be brought by any member of the New M exico Minimum Wage Act Class, and the relief sought is typical of the relief that could be soug ht by each member of the New Mexico Minimum Wage Act Class in separate actions.
75. Adequacy of Representation : Plaintiffs are able to fairly and adequately protect the interests of all members of the Class, as they are challenging the same practices as the class
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as a whole, and there are no known conflicts of interest between Plaintiffs and the members of the New Mexico Minimum Wage Act C lass. Plaintiffs have retained counse l who have extensive experience with the prosecution of wage-and-ho ur cla ims and comp lex c lass-action liti g a t ion.
76. Predominance and Superiority: The common questions identified above predominate over any individual issues. A class action is superior to other avai lab le means fo r the fair a nd efficien t adjudication of this controversy.
77. Pursui t of this action as a class would provide the most efficient mechan ism for adjudicating the claims ofPlaintiffs and the me mbers of the New Mexico Minimum Wage Act C lass.
RULE 23 NEW MEXICO UNJUST ENRICHMENT CLASS ACTION ALLEGATIONS
78. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring c lass-action claims for unjust enrichment under New Mex ico common law.
79. Plainti ffs bring these class-action c laims on beha lf of themse lves and all other c ivi lly detained immigrants who performed work for CoreCivic at Cibola in its work program fo ur years prior to the filing of this action through the date on which notice is issued affording the right to opt out of any class certifi ed pursuant to Rule 23(b)(3) ("Unjust Enrichment C lass").
80. Plaintiffs performed all work during the class period in the absence of an enforceable employment contract with CoreCivic.
81 . Plaintiffs reserve the right to revise the definition of the classes based upon information learned after the filing of this action.
82. Plaintiffs bring these claims on behalf of themselves and members of the Unjust Enrichment C lass under Federal Rules of Civil Procedure 23(a), (b)(2) for their requests for
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declaratory and injunctive relief only, and (b)(3) for their requests for damages. The proposed Unjust Enrichment Class satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements ofthose rules.
83. Numerosity: The proposed class is so numerous that the joinder of all such persons is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. The exact number of class members is unknown to Plaintiffs at this time, because it is within CoreCivic's control. However, upon information and belief, the class comprises hundreds of members. Membership in the class is ascertainable from CoreCivic' s detention and employment records.
84. Commonality: Plaintiffs and all members of the U njust Enrichment Class have been compensated using the unlawful practices alleged herein and, therefore, one or more questions of law or fact are common to the Unjust Enrichment Class. These common questions include, but are not limited to, the following:
a. Whether CoreCivic knowingly benefitted from the labor of Plaintiffs and members of the Unjust Enrichment Class;
b. Whether CoreCivic failed to pay fair and adequate compensation to Plaintiffs and members of the Unjust Enrichment Class;
c. Whether it would be unjust for CoreCivic to retain the benefit from any failure to pay fair and adequate compensation to Plaintiffs and members of the U njust Enrichment Class;
85. Typicality: Plaintiffs and members of the Unjust Enrichment Class were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages. All class members were subjected to the same compensation practices by
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CoreC ivic, as alleged herein, that required or permitted them to perform work for CoreCiv ic' s benefi t, but denied them fair and adequate compensation, including FLSA-mandated and NM MWA-mandated minimum wages and the prevai ling wage in Cibola's locality. Plaintiffs' cla im s are therefore typical of the claims that could be brought by any member of the Unjust Enrichment C lass, and the relief sought is typical of the relief that could be sought by each member of the Unjust Enrichment C lass in separate actions.
86. Adequacy of Representation : Plainti ffs are ab le to fa irly and adequately protect the interests of all members of the U njust Enrichme nt Class, as they are cha llenging the same practices as the class as a w ho le, and there are no known conflicts of interest between Plai ntiffs and the members of the Unjust Enrichment C lass. Pla inti ffs have retained counsel who have extensive experience with the prosecution of wage-and-hour cla ims and compl ex class-action liti g ati o n .
87. Predominance and Superiority: The common questions identified above predominate over any individua l issues. A class action is superior to other avai lable means for the fair and effic ient adjudication o f th is controversy.
88. Pursuit of this action as a class would provide the most e ffic ient mechanism fo r adj udicating the c la ims of Plaintiffs and the members of the Unjust Enrichment C lass.
CAUSES OF ACTION COUNT I
FAIR LABOR STANDARDS ACT OF 1938 29 U.S.C. §§ 201 , et seq.
89. Plainti ffs reallege and incorporate by re ference all previous a llegations of the compla int.
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CoreCivic, as alleged herein, that required or permitted them to perform work for CoreCivic' s benefit, but denied them fair and adequate compensation, including FLSA-mandated and NMMWA-mandated minimum wages and the prevailing wage in Cibola' s locality. Plaintiffs ' claims are therefore typical of the claims that could be brought by any member of the Unjust Enrichment Class, and the relief sought is typical of the reliefthat cou ld be sought by each member of the Unjust Enrichment Class in separate actions.
86. Adequacy of Representation: Plaintiffs are able to fairly and adequately protect the interests of all members of the Unjust Enrichment C lass, as they are challenging the same practices as the class as a whole, and there are no known confl icts of interest between Plaintiffs and the members of the Unjust Enrichment Class. Plaintiffs have retained counsel who have extensive experience with the prosecution of wage-and-hour claims and complex c lass-action litigation.
87. Predominance and Superiority: The common questions identified above predominate over any individual issues. A class action is superior to other available means for the fair and efficient adj udication of this controversy.
88. Pursuit of this action as a class would provide the most efficient mechanism for adjudicating the claims of Plaintiffs and the members of the Unjust Enrichment Class.
CAUSES OF ACTION COUNT I
FAIR LABOR STANDARDS ACT OF 1938 29 U.S.C. §§ 201, et seq.
89. Plaintiffs reallege and incorporate by reference all previous allegations ofthe complaint.
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Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 21 of 26
99. Defendant is an employer within the meaning ofNM Stat. Ann. § 50-4-21.8; I00. Defendant has employed and continues to empl oy Plaintiffs and the proposed class members by engaging, suffering, and/or permitting them to work on its behalf. I0 I. Pla intiffs and the proposed class members have performed a nd continue to perform work necessary to keep the faci lity operational, including preparing and serving meals and other tasks in the kitchen, c leaning the facilities and performing other janitorial tasks, performing laundry services, and operating the library and the barber shop. I02. Since January I, 2009, the New Mexico Minimum Wage Act has required an employer to pay an employee a minimum wage rate of seven dollars and fifty cents ($7.50) per hour. NM Stat. Ann. § 50-4-22.A . I03 . Defendant has pa id and con tinues to pay Plaintiffs and the proposed class members less than the legally required wage for the ir work, and sometimes as little as one dollar per day. I04. Defendant has violated and continues to violate NM Stat. Ann. § 50-4-22.A. by paying Plaintiffs and the proposed class members less than $7.50 per hour.
COUNT III UNJUST ENRICHMENT New Mexico Common Law I05. Plaintiffs reallege and incorporate by reference all previous a llegation s of the compla int. I06. Defendant has operated and continues to operate Cibola as a for-profit business. I07. Defendant has utilized and conti nues to utilize Plaintiffs' and the proposed class members' labor to operate Cibola. Defendant has paid and continues to pay Plaintiffs and the
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Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 22 of 26
proposed class members less than the prevailing wage in Cibola's locality for their work, and sometimes as little as one do llar per day.
I 08. Defendant has not paid, and continues not to pay, Plaintiffs and the proposed class members adequate compensation for their work at Cibola.
I 09. Defendant has knowingly benefitted, and continues knowingly to benefit, at th e expense of Plaintiffs and the proposed class me mbers, retaining the difference between the rate it has paid, and continues to pay , Plaintiffs and the proposed class members and the fair and adequate compensation that it s hould have pa id, and should pay, P laintiffs and the proposed c lass members for their work at C ibola.
II 0. It is and would be unjust for defendant to retain the benefit gained from its practice of fai ling to pay fair and adequate compensation to Plaintiffs and the proposed class members for their work at C ibola.
PRAYER FOR RELIEF Wherefore, plaintiffs pray that the Court : A. Certify this case as a c lass action on behalf of the classes defined above; B. Find that Plaintiffs are proper representatives of the Classes; C. Appoint the undersigned as Class Counsel; D. Order Defendant to pay for a ll necessary notices to the Classes; E. Declare that plaintiffs and members of the Classes are employees within the meaning of29 U.S.C. § 203(e) and NM Stat. Ann. § 50-4-21 .C; F. Declare that Defendant is an emp loyer within the meaning of29 U.S.C. § 203(d) and NM Stat. Ann. § 50-4-2 1.8 .;
22

Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 23 of 26

G . Declare that Defendant has violated 29 U.S.C. § 206 and N M Stat. Ann. § 50-4-

22.A.;

H. Order Defendant to post at Cibo la a nd at its princ ipal p lace of busi ness a notice

describing its vio lations of the New Mexico Minimum W age Act purs uant to NM Stat.

Ann. § 50-4-25.F. ;

I.

Enj o in Defendant from paying c ivilly detained immig rants less than the minimum

wage r~qu ired by 29 U.S.C. § 206 and NM Stat. Ann . § 50-4-22.A for work performed at

C i b o la;

J.

Award plainti ffs and members of the C lasses their unpaid or underpaid wages and

an additional equal amoun t as liquidated damages pursuant to 29 U.S.C. § 2 16;

K. Award plaintiffs and members of the C lasses their unpa id or underpaid wages

plus interest, and an addi tio nal amount equa l to twice the unpa id or underpaid wages,

pursuant to the New Mexico Minimum Wage Act, NM Stat. Ann. § 50-4-26.C;

L. Award plaintiffs their reasonable attorneys' fees and costs pursuant to 29 U.S.C.

§ 2 16 and NM Stat. Ann. § 50-4-26.E, or as otherwise authorized by law;

M. Declare that Defendant has been unjustly enriched by fai ling to adeq uately and

fairly pay plaintiffs and members o f the C lasses for the ir work at C ibo la ;

N . Award plaintiffs and members ofthe C lasses their unpaid or underpaid wages for

their work at Cibola us ing the prevailing wage rates required by the co ntract between

CoreCivic and C ibola County for the work they performed ;

0 . Award plaintiffs and class members prejudgment interest pursuant to NM Stat.

Ann. § 56-8-3(8) or to the extent otherwise autho rized by law;

23

Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 24 of 26

90. Plaintiffs and the proposed class members are employees within the meaning of

29 U.S.C. §§ 203(e)(l) and (g);

91. Defendant is an employer within the meaning of29 U.S.C. § 203(d);

92. Defendant has employed and continues to employ Plaintiffs and the proposed

class members by engaging, suffering, and/or permitting them to work on its behalf.

93. Plaintiffs and the proposed class members have performed and continue to

perform work necessary to keep the facility operational, including preparing and serving meals,

cleaning the facilities and performing other janitorial tasks, performing laundry services, and

operating the library and the barber shop.

94. Since July 24, 2009, the Fair Labor Standards Act has required an employer to

pay an employee a minimum wage rate of seven dollars and twenty-five cents ($7.25) per hour.

29 U.S.C. § 206.

95. Defendant has paid and continues to pay Plaintiffs and the proposed class

members less than the legally required wage for their work, and sometimes as littl e as one dollar

per day. 96.

Defendant has violated and continues to violate 29 U.S.C. § 206 by paying

Plaintiffs and the proposed class members less than $7.25 per hour.

COUNT II NEW MEXICO MINIMUM WAGE ACT
NM Stat. Ann. §§ 5-4-19, et seq.

97. Plaintiffs reallege and incorporate by reference all previous allegations of the

complaint.

98. Plaintiffs and the proposed class members are employees within the meaning of

NM Stat. Ann. § 50-4-2l.C.;

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P. Award plaintiffs and members of the Classes post-judgment interest to the extent
authorized by law; and
Q. Award plaintiffs and members ofthe Classes such add itional rel ief as the interests
ofjustice may require.
DATED this 14th day ofNovember, 20 18.
Respectfully submitted,
Is/ Joseph M . Sellers JOSEPH M. SELLERS (No. 06284) jsellers@cohenmilstein .com D. MICHAEL HANCOCK* mhancock@cohenmilstein.com STACY N. CAMMARANO* scammaran o @ c ohe nmil ste in .com COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. Suite 500 Washington, DC 20005 202-408-4600
*pro hac vice application forthcoming
Is/ Robert S. Libman ROBERTS. LIBMAN* rlibman @lawmbg.com NANCY MALDONADO* nmaldonado@ lawmbg.com DEANNA PIHOS* dpihos@lawmbg.com BENJAMIN BLUSTEIN* bblustein@ lawmbg.com MATTHEW 1. OWENS* mowens@lawmbg.com MTNER, BARNHILL & GALLAND, P.C. 325 North LaSalle Street, Suite 350 Chicago, JL 60654 312-751-1 I 70
*pro hac vice application forthcoming
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Case 1:18-cv-03521-RDB Document 1 Filed 11/14/18 Page 26 of 26
Is/ R. Andrew Free
R. ANDREW FREE* Andrew@lmmigrantCiviiRights.com LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, 1N 37209 844-321-3221 X I *pro hac vice application forthcoming Anorneysfor Plaintiffs and the Proposed Class
25

 
 Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (SOUTHERN DIVISION)

Desmond Ndambi, et al., individually and on behalf of all others similarly situated,
Plaintiffs, v. CoreCivic, Inc.,
Defendant.

) ) ) ) Case No. 1:18-cv-03521-RDB ) ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COMPLAINT Defendant CoreCivic, Inc., moves to dismiss this action pursuant to Civil Procedure Rule 12(b). Plaintiffs and the putative class members—all former or current civil immigration detainees in the custody of U.S. Immigration and Customs Enforcement (“ICE”)—bring claims under the Fair Labor Standards Act (“FLSA”) and the New Mexico Minimum Wage Act (“NMMWA”). They allege that they were underpaid for labor voluntarily performed while detained in a New Mexico facility and awaiting removal proceedings. Their claims, however, rely on the incorrect legal premise that they were “employees” of the detention facility’s private operator, CoreCivic. As courts across the country have consistently concluded, they were not employees because the economic reality of their custodial detention belies any indicia of a traditional free-market-employment relationship. Thus, as a matter of law, neither the FLSA nor the NMMWA apply. And because they were not entitled to federal or state statutory wages, their claim for unjust enrichment fails as well. The Court should dismiss all claims with prejudice.

Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 2 of 18
I. COMPLAINT ALLEGATIONS.1 Plaintiffs Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses are three former
ICE detainees who were detained at the Cibola County Correctional Center (“Cibola”) in Cibola County, New Mexico pending their removal proceedings. (Doc. 1, ¶¶ 9–14 & 21.) CoreCivic owns and operates Cibola pursuant to an Intergovernmental Service Agreement (“IGSA”) between ICE and Cibola County. (Id., ¶¶ 15–17, 21, 23 & 24.) Under that agreement, CoreCivic is required to maintain a voluntary work program for ICE detainees. (Id., ¶ 26.)
Ndambi alleges that he was detained at Cibola from June 22, 2017, to October 1, 2017, and worked as a janitor and in the facility’s library. (Id., ¶¶ 33-38.) He alleges that he was paid $1 for each day that he worked. (Id.) Abi alleges that he was detained at Cibola from June 24, 2017, to November 22, 2017, and worked as a janitor and in the facility’s kitchen. (Id., ¶¶ 4147.) He alleges that he was paid $1 per day as a janitor and $15 per week as a kitchen worker. (Id.) Awombang alleges that he was detained at Cibola from June 20, 2017, to December 20, 2017, and also worked as a janitor and kitchen worker for the same amounts. (Id. ¶¶ 49-53.)
In Count I, Plaintiffs bring a claim under the FLSA and allege that they were entitled to the federal minimum wage of $7.25 per hour. (Id., ¶¶ 89–96.) They allege that CoreCivic was an employer under 29 U.S.C. § 203(d), and that they were employees under 29 U.S.C. §§ 203(e)(1) and (g). (Id.) In Count II, Plaintiffs bring a claim under the NMMWA and allege that they were entitled to the state minimum wage of $7.50 per hour. (Id., ¶¶ 99–104.) They allege that CoreCivic was an employer under N.M. Stat. § 50-4-21. (Id.) Finally, in Count III,
1 For purposes of this Motion, the Court must assume the allegations in the Complaint are true and construe them in the light most favorable to Plaintiffs. See In re Human Genome Scis. Inc. Sec. Litig., 933 F. Supp. 2d 751, 757 (D. Md. 2013).
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Plaintiffs bring a New Mexico unjust-enrichment claim, alleging that their labor relieved CoreCivic from having to employ others the minimum wages. (Id., ¶¶ 46, 56, 57, 105–110.) Plaintiffs seek to certify their FLSA claim as a collective action, pursuant to 29 U.S.C. § 216(b), and their NMMWA and unjust enrichment claims as class actions, pursuant to Civil Rule 23, on behalf of all civilly detained immigrants who performed work at Cibola in the two (or four) years prior to the complaint and prospectively. (Id., ¶¶ 55-88.) II. THE COMPLAINT FAILS TO STATE A VIABLE CLAIM.
Standard of Review. To survive a motion to dismiss, a plaintiff must state a plausible claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Although a court must accept as true all factual allegations, that principle “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, the Court cannot accept as true Plaintiffs’ allegations that they were “employees,” or that CoreCivic was their “employer,” under the minimum wage laws. Those are legal conclusions that this Court must decide as a matter of law.
Plaintiffs’ FLSA Claim Should Be Dismissed. Congress enacted the FLSA “to protect the standard of living and general well-being of the American worker.” Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997); see also 29 U.S.C.A. § 202(a). The FLSA “mandates that employers pay a minimum wage to covered employees . . . .” Ross v. Wolf Fire Prot., Inc., 799 F. Supp. 2d 518, 523 (D. Md. 2011) (citing 29 U.S.C. §§ 206(a)(1)) (emphasis added). But not everyone who meets the technical definition of an employee is covered under the FLSA. See Benshoff v. City of Virginia Beach, 180 F.3d
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136, 140 (4th Cir. 1999) (holding that “the definitions of ‘employ’ and ‘employer’ were ‘not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another,’ nor should they be interpreted so as to ‘sweep under the Act each person who, without promise or expectation of compensation, but solely for his personal purpose or pleasure, work[s] in activities carried on by other persons either for their pleasure or profit”) (alteration in original); see also Francis v. Johns, No. 5:11-CT-3005-FL, 2013 WL 1309285, at *7 (E.D. N.C. Mar. 28, 2013) (holding that “the FLSA’s minimum wage provisions apply only to workers who are ‘employees’ within the meaning of the [FLSA]”).
In determining whether a claimant is a covered employee within the meaning of the FLSA, the Supreme Court has instructed courts to look at “the ‘economic reality’ rather than ‘technical concepts.’” Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961). That determination “does not depend on ‘isolated factors but rather upon the circumstances of the whole activity.’” Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880, 890 (D. Md. 2011) (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)). “Courts generally look at the ‘economic reality’ of an individual’s status in the workplace before determining liability.” Id. “Those seeking compensation under the [FLSA] bear the initial burden of proving that an employer-employee relationship exists and that the activities in question constitute employment for purposes of the [FLSA].” Benshoff, 180 F.3d at 140.
In a custodial-detention setting such as this, the question whether an employment relationship exists turns on the economic reality of the relationship: Can it plausibly be said that the claimant is “‘employed’ in the relevant sense at all?” Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir. 1992).
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In the prison context, federal courts have uniformly answered that question in the negative, holding that the custodial nature of prisoner labor falls outside the type of employment relationship that Congress intended the FLSA to protect. See Loving v. Johnson, 455 F.3d 562, 563 (5th Cir. 2006) (“We join these other circuits and hold that a prisoner doing work in or for the prison is not an ‘employee’ under the FLSA and is thus not entitled to the federal minimum wage.”); Bennett v. Frank, 395 F.3d 409, 409 (7th Cir. 2005) (“The Fair Labor Standards Act is intended for the protection of employees, and prisoners are not employees of their prison, whether it is a public or a private one. So they are not protected by the Act.”); Tourscher v. McCullough, 184 F.3d 236, 243 (3d Cir. 1999) (“Each circuit that has addressed the question has concluded that prisoners producing goods and services used by the prison should not be considered employees under the FLSA.”); Gambetta v. Prison Rehab. Indus. & Diversified Enters., Inc., 112 F.3d 1119, 1124 (11th Cir. 1997) (“We are persuaded by the reasoning of our sister circuits, and we join them in the conclusion that inmates who work for state prison industries are not covered by the FLSA.”); Danneskjold v. Hausrath, 82 F.3d 37, 43–44 (2d Cir. 1996) (holding: “[N]o Court of Appeals has ever questioned the power of a correctional institution to compel inmates to perform services for the institution without paying the minimum wages. Prisoners may thus be ordered to cook, staff the library, perform janitorial services, work in the laundry, or carry our numerous other tasks that serve various institutional missions of the prison, such as recreation, care and maintenance of the facility, or rehabilitation. Such work occupies the prisoners’ time that might otherwise be filled by mischief; it trains prisoners in the discipline and skills of work; and it is a method of seeing that prisoners bear a cost of their incarceration.”; further holding “that prison labor that produces goods or services for institutional needs of the prison, whether voluntary or involuntary, inside or outside the institution, or in
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connection with a private employer, is not an employment relationship within the meaning of the FLSA”); Abdullah v. Myers, 52 F.3d 324, *1 (6th Cir. 1995) (unpublished op.) (“Other circuits which have addressed this issue have concluded that prisoners are not employees entitled to the minimum wage because the prison has a rehabilitative rather than a pecuniary interest in encouraging inmates to work, because the relationship is not an employment relationship but a custodial one, and because the purposes of the Fair Labor Standards Act are not implicated in this situation, as the prisoner does not require the minimum wage to maintain his standard of living, which is provided by the state, and there is no unfair competition with employers outside the prison.”); Franks v. Oklahoma State Indus., 7 F.3d 971, 973 (10th Cir. 1993) (“In our view, the economic reality test was not intended to apply to work performed in the prison by a prison inmate.”); see also Henthorn v. Dep’t of Navy, 29 F.3d 682, 686 (D.C. Cir. 1994) (holding prisoner not employee of the prison); McMaster v. Minnesota, 30 F.3d 976, 980 (8th Cir. 1994) (same); Hale v. Arizona, 993 F.2d 1387, 1395 (9th Cir. 1993) (“[W]e are influenced by the fact that no other circuit has construed the relationship between a prison and a prisoner with a hardtime obligation who works on a program structured by the prison as an employment relationship within the FLSA.”).
In Harker v. State Use Industries, 990 F.2d 131, 136 (4th Cir. 1993), the Fourth Circuit agreed, noting that federal courts have uniformly held that the FLSA does not cover prisoner labor “for any type of prison-operated industry or for the prison itself.” It reasoned that the custodial relationship differs significantly from the traditional-free market employment relationship that Congress intended to protect:
[Prisoners] certainly are not free to walk off the job site and look for other work. When a shift ends, inmates do not leave DOC supervision, but rather proceed to the next part of their regimented day. [The parties] do not enjoy the employer-employee
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relationship contemplated in the [FLSA], but instead have a custodial relationship to which the Act’s mandates do not apply. Further, the FLSA does not cover these inmates because the statute itself states that Congress passed minimum wage standards in order to maintain a “standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). While incarcerated, inmates have no such needs because the DOC provides them with the food, shelter, and clothing that employees would have to purchase in a true employment situation. So long as the DOC provides for these needs, Harker can have no credible claim that inmates need a minimum wage to ensure their welfare and standard of living. Id. at 133. These reasons preclude prisoner-labor-based claims under the FLSA regardless of whether the alleged employer was a private or government entity, or whether the work assignment was voluntary or involuntary. Id. at 133, 136; accord Danneskjold, 82 F.3d at 43 (holding that “the voluntary performance of labor that serves institutional needs of the prison is not in economic reality an employment relationship. The prisoner is still a prisoner; the labor does not undermine FLSA wage structures; the opportunity is open only to prisoners; and the prison could order the labor if it chose. Indeed, to hold otherwise would lead to a perverse incentive on the part of prison officials to order the performance of labor instead of giving some choice to inmates”). The Fourth Circuit has thus categorically rejected FLSA claims based on all types of prisoner labor because applying a control-type test “in situations when an inmate works inside prison walls only encourages unnecessary litigation and invites confusion in an area of the law that should be quite clear.” Harker, 990 F.2d at 136. It stated it “will not judicially impose a new kind of employer-employee framework upon the DOC and its inmates under the guise of interpreting the FLSA’s scope,” because, “[f]or more than fifty years, Congress has operated on
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the assumption that the FLSA does not apply to prisoner labor. If the FLSA’s coverage is to extend within prison walls, Congress must say so, not the courts.” Id.2
Courts have since extended this rationale to reject FLSA claims brought by pretrial
detainees based on work-program labor, finding that the economic reality of pretrial detention
was not materially different than that of incarcerated prisoners. See Villarreal, 113 F.3d at 206
(finding “inmate cases helpful because pretrial detainees are similar to convicted prisoners in that
they are incarcerated and are under the supervision and control of a governmental entity, and
holding: “Clearly, pretrial detainees are in a custodial relationship like convicted prisoners.
Correctional facilities provide pretrial detainees with their everyday needs such as food, shelter,
and clothing. Convicted prisoners are likewise provided these same basic needs. Additionally,
like convicted prisoners, pretrial detainees suffer from loss of freedom of choice and privacy due
to the nature of their confinement. In light of these similarities, we deem persuasive the cases
addressing the applicability of the FLSA to convicted inmates.”) (internal citation omitted).
2 The Fourth Circuit’s refusal to interpret the FLSA in a manner that would extend its protections to cover custodial contexts because Congress never contemplated it when passing the Act is consistent with the Supreme Court’s refusal to literally read statutes out of context to cover conduct that Congress never intended the statutes to address. See, e.g., Yates v. United States, 135 S. Ct. 1074, 1081, 1087 (2015) (rejecting “an aggressive interpretation of ‘tangible object’” out of context to criminalize a defendant’s destruction of fish, finding it “highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping”); see also, e.g., Bond v. United States, 572 U.S. 844, 857 (2014) (“Part of a fair reading of statutory text is recognizing that ‘Congress legislates against the backdrop’ of certain unexpressed presumptions,” and holding that it did not intend the Chemical Weapons Convention Implementation Act to cover the use of a toxic chemical by a jilted wife to assault her husband’s paramour). Indeed, the Supreme Court’s holding that “the ‘economic reality’ rather than ‘technical concepts’ is to be the test of employment,” Goldberg, 366 U.S. at 33, echoes this instruction by the Supreme Court that context matters in determining whether a particular employment relationship is covered under the FLSA.
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This is because pretrial-detention labor, like prisoner labor, bears none of the indicia of
traditional free market employment, and imposing minimum wages in a custodial-detention
setting is inconsistent with the FLSA’s primary goal of protecting the standard of living and
well-being of workers:
Focusing on the economic reality of the situation in its entirety, we conclude that [a pretrial detainee] is not an “employee” under the FLSA. The purpose of the FLSA is to protect the standard of living and general well-being of the American worker. Because the correctional facility meets Villarreal’s needs, his “standard of living” is protected. In sum, “the more indicia of traditional, freemarket employment the relationship between the prisoner and his putative ‘employer’ bears, the more likely it is that the FLSA will govern the employment relationship.” Villarreal’s situation does not bear any indicia of traditional free-market employment contemplated under the FLSA. Accordingly, we hold that Villarreal and other pretrial detainees in similar circumstances are not entitled to the protection of the FLSA minimum wage requirement.
Villareal, 113 F.3d at 207; accord Tourscher, 184 F.3d at 244 (“We agree with this rationale.
Tourscher’s employment bears no indicia of traditional free-market employment. Therefore, we
hold that the minimum wage requirements of the FLSA do not apply to Tourscher or other
similarly situated pretrial detainees.”).
Courts have extended this logic even further and applied this version of the economic-
reality test to reject minimum-wage claims brought by civil detainees under the FLSA, finding
that the distinction among prisoners, pretrial detainees, and civil detainees is immaterial. See
Smith v. Dart, 803 F.3d 304, 314 (7th Cir. 2015) (“We cannot see what difference it makes if the
incarcerated person is a prisoner, civil detainee, or pretrial detainee. In all cases, the
aforementioned principles apply equally.”).
For instance, in Sanders v. Hayden, 544 F.3d 812, 814 (7th Cir. 2008), the court held that
the FLSA does not apply to labor provided by a civil detainee committed to a treatment facility,
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 10 of 18
finding that they are not in the facility “for the purpose of enabling them to earn a living.” The Seventh Circuit reasoned that Congress did not intend to impose a minimum wage in such circumstances, even if the work was used to “offset some of the costs” of the detention:
The [facility] pays for their keep. If it puts them to work, it is to offset some of the cost of keeping them, or to keep them out of mischief, or to ease their transition to the world outside, or to equip them with skills and habits that will make them less likely to return to crime outside. None of these goals is compatible with federal regulation of their wages and hours. Id. The First Circuit has held the same. See Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir. 1992) (holding the FLSA does not apply to a civil detainee committed as a sexually dangerous person). And so has the Fourth Circuit. In Matherly v. Andrews, 859 F.3d 264, 278 (4th Cir. 2017), the Fourth Circuit rejected FLSA claims based on labor performed by civil detainees for the same reasons it categorically rejected FLSA claims based on prisoner labor in Harker: “The Harker factors are applicable here and compel the conclusion that [a civil detainee] doesn’t qualify as an ‘employee’ within the meaning of the FLSA . . . .” See also, e.g., Williams v. Coleman, No. 1:11-CV-01189-GBC PC, 2012 WL 6719483, at *3 (E.D. Cal. Dec. 26, 2012), aff’d, 536 F. App’x 694 (9th Cir. 2013) (“The law is clear that prisoners may be required to work and that any compensation for their labor exists by grace of the state. There is no authority to justify a digression from this wellestablished law when the case involves a civil detainee rather than a prisoner.”) (internal citations omitted); Shaw v. Briody, No. 2:02CV500FTM-33SPC, 2005 WL 2291711, at *3 (M.D. Fla. Sept. 20, 2005) (finding “that FLSA is inapplicable to . . . civil detainees housed at the FCCC”). The common thread that binds all these cases, which have unanimously rejected FLSA claims based on labor performed in a prison or detention facility is the custodial nature of the
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 11 of 18
relationship between the prisoners/detainees and their custodian. That custodial-detention relationship does not bear any indicia of traditional free-market employment situations to which the FLSA’s provisions apply. Because the prisoner or detainee is removed from the national economy, because the work performed in the work program is merely incident to the incarceration or detention, and because the custodian provides for their welfare and basic standard of living, there is no need for a minimum wage.
Civil immigration detainees are no different. On remarkably similar facts, the Fifth Circuit has applied the same logic in the immigration-detention context. In Alvarado Guevara v. I.N.S., 902 F.2d 394, 395 (5th Cir. 1990), the court held that immigration detainees who performed maintenance, cooking, laundry, and other services for $1 per day at their detention center were not covered employees under the FLSA. Just like prisoners, pretrial detainees, and other civil detainees, the court reasoned that immigration detainees were “removed from American industry,” under the direct supervision and control of the detention facility, and “not within the group that Congress sought to protect in enacting the FLSA.” Id. at 395–96.
In reaching this conclusion, the court further noted that Congress manifested its intent not to provide federal-minimum wages to such immigration detainees in the Immigration and Naturalization Act, which authorizes “payment of allowances to aliens for work performed while held in custody under the immigration laws,” id. at 396 (citing 8 U.S.C. § 1555(d), and Congress then set that allowance at “a rate not in excess of $1 per day,” id. (citing Department of Justice Appropriation Act, Pub. L. No. 95-86, 91 Stat. 426 (1978)). This rate was substantially less than the federal minimum wage of $2.65 per hour in 1978, when the appropriations bill passed. See https://www.dol.gov/whd/minwage/chart.htm. Having itself set an allowance for immigrationdetainee labor that was far below the federal minimum wage, Congress could not have intended
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 12 of 18
the FLSA’s minimum-wage protections to cover labor performed at an immigration detention center under the work program it specifically funded.
Likewise here, Plaintiffs’ participation in the voluntary work program at Cibola lacks any indicia of a free-market employment relationship. Plaintiffs were not at Cibola to earn a living. Like the immigration detainees in Alvarado, Plaintiffs were in ICE custody and detained at Cibola pending their removal proceedings. Plaintiffs were thus completely removed from participating in the national economy.
Moreover, there was no need for Plaintiffs to earn a minimum wage at Cibola because CoreCivic provided their standard of living (food, shelter, healthcare, etc.). See Sanders, 544 F.3d at 814. Thus, Plaintiffs’ basic standard of living and welfare were protected regardless of whether they worked. To the extent that CoreCivic allegedly offset some of those costs through the work program, that allegation does not warrant a radical departure from Harker, Matherly, and the plethora of other cases discussed above, which establish that the FLSA does not apply to such custodial relationships. See Sanders, 544 F.3d at 814 (holding that Congress did not intend to impose a minimum wage on civil detention, even if the work was used to “offset some of the costs” of the detention).
Simply put, the economic reality of Plaintiffs’ immigration detention does not give rise to an employment relationship within the meaning of the FLSA. Thus, they were not “covered employees” within the meaning of the FLSA.
Plaintiffs’ NMMWA Claim Fails for the Same Reasons. The statutory definitions of “employ,” “employer,” and “employee” under both the FLSA and the NMMWA (other than exceptions inapplicable here) are substantially the same. Compare N.M. Stat. § 50-4-21(A), (B), and (C), with 29 U.S.C. § 203)(d), (e)(1), and (g); accord Garcia v. Am. Furniture Co., 689 P.2d 934, 938 (N.M. Ct. App. 1984). Thus, courts interpreting whether
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 13 of 18
an employee is covered under the NMMWA look to federal decisions interpreting the FLSA’s analogous provisions as persuasive authority. Id. “In determining whether a person is an employee under the [NMMWA], ‘the ultimate issue is whether as a matter of “economic reality” the particular worker is an employee.’” Garcia, 689 P.2d at 938 (quoting Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 (5th Cir. 1979)).
Following the Fifth Circuit’s reasoning in Alvarado, two courts have held that immigration detainees are not covered employees under their respective state minimum-wage statutes, finding that the legislative purpose of protecting the standard of living and welfare of workers was not served because of the custodial setting. See Menocal v. GEO Group., Inc., 113 F. Supp. 3d 1125, 1129 (D. Colo. 2015) (dismissing immigration detainees’ claim under analogous Colorado minimum-wage statute because the facility provided for their standard of living and well-being) (citing Alvarado, 902 F.2d at 396); see also Whyte v. Suffolk Cty. Sheriff’s Dep’t, 91 Mass. App. Ct. 1124, *2 (2017) (unpublished op.), review denied, 94 N.E.3d 395 (Mass. 2017) (“We find no reason why Whyte’s status as a detainee should result in a different outcome from Federal cases. Federal cases have excluded prison labor performed within the prison, because the primary goals of the FLSA—ensuring a basic standard of living and preventing wage structures from being undermined by unfair competition in the marketplace— do not apply in that context. The rationale of the Federal cases is equally applicable to the Massachusetts wage laws at issue here.”).
Likewise here, the NMMWA’s purpose is to protect the standard of living and general welfare of New Mexico workers. See N.M. Stat. § 50-4-19. Plaintiffs were not covered employees under the NMMWA because CoreCivic provided for Plaintiffs’ standard of living and welfare. Additionally, Plaintiffs were not detained at Cibola to earn a living. They were
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 14 of 18
removed from the national economy and held in custody pending the outcome of removal proceedings. Plaintiffs’ state-minimum wage claim thus fails for the same reasons their federal claim fails. See, e.g., Padilla v. Am. Fed’n of State, Cty., and Mun. Emps., 11-1028 JCH/KBM, 2013 WL 12085976, at *9 (D. N.M. March 28, 2013) (finding it unnecessary to address NMMWA claim after finding that plaintiff was not a covered employee under the FLSA, noting that “both parties agree that the same legal analysis applies in both case”), aff’d, 551 F. App’x 941, 944 (10th Cir. 2014) (“We agree with the district court's analysis, and conclude, as a matter of law, that Padilla is not an employee for purposes of the FLSA or NMMWA.”).
Plaintiffs’ Unjust Enrichment Claim Should Be Dismissed. To state a claim for unjust enrichment under New Mexico law, the allegations must establish that (1) the defendant knowingly benefitted at the plaintiff’s expense (2) in a manner that allowing the defendant to retain that benefit would be unjust. Ontiveros Insulation Co. v. Sanchez, 3 P.3d 695, 698–99 (N.M. App. 2000) (citing Restatement of the Law of Restitution §§ 1, 40, 41 (1937)). The mere fact that the defendant retained a benefit at the plaintiff’s expense is thus insufficient—the retention of that benefit must also be unjust. See Sunwest Bank of Albuquerque v. Colucci, 872 P.2d 346, 349, ¶ 12 (N.M. 1994) (citing Restatement (First) of Restitution § 19(c)) (“Even where a person has received a benefit from another, he is liable to pay therefor only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him to retain it. The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.”)). Here, Plaintiffs claim that CoreCivic was unjustly enriched is based on the same incorrect legal premise that it was unlawful to pay them less than the minimum wages under the FLSA and the NMMWA. Thus, this claim is merely derivative of the minimum-wage claims in Counts I and II, and fails because they fail. See, e.g., Roscoe v. Fed. Home Loan Mortg. Ass’n, 201 F.3d
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 15 of 18
449, *7 (10th Cir. 1999) (unpublished op.) (“Roscoes’ unjust enrichment claim in many ways parallels their ‘unconscionability’ claim, and fails for the same reasons.”).
Nevertheless, the unjust enrichment claim fails because there was no inequity between the parties. Any alleged benefit that CoreCivic received by paying Plaintiffs less than the minimum wage was more than offset by the fact that CoreCivic provided all of Plaintiffs’ basic living expenses, including food, utilities, supplies, housing, and medical care at no cost to them. See, e.g., N.M. Stat. § 50-4-22 (B) (“An employer furnishing food, utilities, supplies, or housing to an employee who is engaged in agriculture may deduct the reasonable value of such furnished items from any wages due to the employee.”).
Moreover, the unjust enrichment claim fails to the extent it is based on an implied-in-fact employment contract. In New Mexico, quasi-contract theories of restitution are not available for claims “grounded in the parties’ contractual relationship.” See Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1117 (10th Cir. 2005) (The “hornbook rule [is] that quasicontractual remedies ... are not to be created when an enforceable express contract regulates the relations of the parties with respect to the disputed issue.”). In such circumstances, the parties are to “be bound by the terms of the written agreements to which they freely commit themselves.” Id. at 1116 (quotation omitted).
Thus, to the extent that Plaintiffs’ work-program assignments during their detention at Cibola can give rise to an implied employment contract, their compensation is determined by that agreement, and any equitable claim for more compensation is barred. See, e.g., Hydro Conduit Corp. v. Kemble, 793 P.2d 855, 861, ¶ 12 (N.M. 1990) (“From all of this we conclude that, even though an action for unjust enrichment is not ‘based on contract’ in a strict theoretical sense, it is so closely related to an action which is so based that the immunity statute here,
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 16 of 18 Section 37–1–23, should be construed to extend immunity to an unjust enrichment claim as well as to a claim founded on a true, but unwritten, contract.”). Nor do Plaintiffs allege that CoreCivic’s payment of less than the federal or state minimum wages was the result of mistake or coercion. Cf. Sunwest Bank of Albuquerque, 872 P.2d at 349 (“Where a plaintiff has paid money in the mistaken belief that an enforceable contract exists, the plaintiff is entitled to recover the money paid, as restitution.”). Thus, the value of any labor that CoreCivic allegedly retained through the work program, above the compensation Plaintiffs already received (including free living expenses), was an officious benefit to which Plaintiffs have no right to restitution. See Restatement (First) of Restitution § 112 (“[T]he principle that a person who officiously confers a benefit upon another is not entitled to restitution therefor.”). As a matter of law, there is no unjust enrichment. III. CONCLUSION
For these reasons, the Court should dismiss all claims. / / / / / / / / /
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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 17 of 18

Dated: January 11, 2019

Respectfully submitted,
/s/ Daniel P. Struck Daniel P. Struck (pro hac vice) Rachel Love (pro hac vice) Jacob B. Lee (pro hac vice)
STRUCK LOVE BOJANOWSKI & ACEDO, PLC
3100 West Ray Road, Suite 300 Chandler, Arizona 85226 Phone: (480) 420-1600 Fax: (480) 420-1695 dstruck@strucklove.com rlove@strucklove.com jlee@strucklove.com
Paul J. Maloney, 02026 Matthew D. Berkowitz, 17999 K. Maxwell Bernas, 1048861 CARR MALONEY PC 2020 K Street NW, Suite 850 Washington, DC 20006 Phone: (202) 310-5500 Fax: (202) 310-5555 paul.maloney@carrmaloney.com matthew.berkowitz@carrmaloney.com maxwell.bernas@carrmaloney.com
Attorneys for Defendant CoreCivic, Inc.

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Case 1:18-cv-03521-RDB Document 36-1 Filed 01/11/19 Page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of January, 2019, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:

Joseph M. Sellers D. Michael Hancock Stacy N. Cammarano Robert S. Libman Nancy Maldonado Deanna Pihos Benjamin Blustein Matthew J. Owens R. Andrew Free Matthew D. Berkowitz K. Maxwell Bernas

jsellers@cohenmilstein.com mhancock@cohenmilstein.com scammarano@cohenmilstein.com rlibman@lawmbg.com nmaldonado@lawmbg.com dpihos@lawmbg.com bblustein@lawmbg.com mowens@lawmbg.com andrew@immigrantcivilrights.com matthew.berkowitz@carrmaloney.com maxwell.bernas@carrmaloney.com

and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants:
N/A

3526382.1

/s/ Daniel P. Struck

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 Case 1:18-cv-03521-RDB Document 43 Filed 02/26/19 Page 1 of 3
UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

Desmond Ndambi. et al., Plaintiffs,
vs. CoreCivic Inc.,
Defendant.

Case No. 1:18-cv-3521-RDB

MOTION FOR CONDITIONAL CERTIFICATION AND ISSUANCE OF NOTICE

Plaintiffs Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, hereby file their Motion for “Conditional Certification and Issuance of Notice” asking the Court to conditionally certify this case as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b), and to facilitate the issuance of notice to potential collective members. Plaintiffs seek certification of the following collective:
all civilly detained immigrants who performed work for CoreCivic at Cibola through its work program at any time during the period beginning November 14, 2016, and continuing to the date on which notice is issued. Notwithstanding the pending Motion to Dismiss (ECF No. 36), Plaintiffs seek conditional certification and notice at this time because the limitations period for the FLSA claims of putative collective members runs until each person affected by the challenged practice has consented to join the lawsuit. In the alternative, if the Court wishes to adjudicate Defendant’s Motion to Dismiss first, Plaintiffs ask the Court to equitably toll the running of the limitations period applicable to

Case 1:18-cv-03521-RDB Document 43 Filed 02/26/19 Page 2 of 3
members of the putative collective action. The grounds for this motion are set forth in the attached Memorandum and accompanying Exhibits.
THEREFORE, Plaintiffs respectfully request that this Court conditionally certify a collective under section 216(b) of the Fair Labor Standards Act and direct that Notice issue to potential collective members, and, if the court first adjudicates CoreCivic’s motion to dismiss, to equitably toll the limitations period governing the putative collective members’ claims from the date of this motion until ninety days after the notice issues.

February 26, 2019

Respectfully submitted,
/s/ Joseph M. Sellers Joseph M. Sellers (#06284) D. Michael Hancock (pro hac vice) Stacy N. Cammarano (pro hac vice) Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW, Suite 500 Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com mhancock@cohenmilstein.com scammarano@cohenmilstein.com
Robert S. Libman (pro hac vice) Nancy Maldonado (pro hac vice) Deanna Pihos (pro hac vice) Benjamin Blustein (pro hac vice) Matthew J. Owens (pro hac vice) Miner, Barnhill & Galland, P.C. 325 North LaSalle Street, Suite 350 Chicago, IL 60654 312-751-1170 rlibman@lawmbg.com nmaldonado@lawmbg.com dpihos@lawmbg.com bblustein@lawmbg.com mowens@lawmbg.com
2

Case 1:18-cv-03521-RDB Document 43 Filed 02/26/19 Page 3 of 3 R. Andrew Free* Law Office of R. Andrew Free P.O. Box 90568 Nashville, TN 37209 844-321-3221x1 andrew@immigrantcivilrights.com *pro hac vice application pending Attorneys for Plaintiffs and the Proposed Class
3

 
 Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 1 of 9
APPEAL,CLOSED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:18−cv−03521−RDB

Ndambi et al v. CoreCivic, Inc. Assigned to: Judge Richard D. Bennett Case in other court: USCA, 19−02207 Cause: 29:201 Fair Labor Standards Act
Plaintiff
Desmond Ndambi

Date Filed: 11/14/2018 Date Terminated: 09/27/2019 Jury Demand: None Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question
represented by Joseph M Sellers Cohen Milstein Sellers and Toll PLLC 1100 New York Ave NW Ste 500 East Washington, DC 20005 12024084600 Fax: 12024084699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Owens Miner Barnhill and Galland PC 325 N. LaSalle St. Ste. 350 Chicago, IL 60654 3127511170 Fax: 3127510438 Email: dpihos@lawmb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin J Blustein Miner Barnhill and Galland PC 325 N. LaSalle St. Ste. 350 Chicago, IL 60654 3127511170 Fax: 3127510438 Email: bblustein@lawmbg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Deanna N Pihos Miner Barnhill and Galland PC 325 N. LaSalle St. Ste. 350 Chicago, IL 60654 3127511170 Fax: 3127510438 Email: dpihos@lawmbg.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Hancock Cohen Milstein Sellers and Toll PLLC 1100 New York Ave. Ste. 500 Washington, DC 20005 2024084600 Fax: 20204084699 Email: mhancock@cohenmilstein.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 2 of 9

Nancy L Maldonado Miner Barnhill and Galland PC 325 N. LaSalle St. Ste. 350 Chicago, IL 60654 3127511170 Fax: 3127510438 Email: nmaldonado@lawmbg.com PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Andrew Free Law Office of R. Andrew Free PO Box 90568 Nashville, TN 37209 8443213221 Fax: 6158298959 Email: Andrew@ImmigrantCivilRights.com PRO HAC VICE ATTORNEY TO BE NOTICED

Robert S Libman Miner Barnhill and Galland PC 325 N. LaSalle Ste. 350 Chicago, IL 60654 3127511170 Fax: 3127510438 Email: rlibman@lawmbg.com PRO HAC VICE ATTORNEY TO BE NOTICED

Stacy N Cammarano Cohen Milstein Sellers and Toll PLLC 1100 New York Ave. NW Ste. 500 Washington, DC 20005 2024084600 Fax: 2024084699 Email: scammarano@cohenmilstein.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Mbah Emmanuel Abi

represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Owens (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Blustein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deanna N Pihos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Hancock (See above for address)

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 3 of 9

PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L Maldonado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert S Libman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stacy N Cammarano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Nkemtoh Moses Awombang individually and on behalf of all others similarly situated

represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Owens (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Blustein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deanna N Pihos (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Hancock (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy L Maldonado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert S Libman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 4 of 9

Plaintiff Ivan Chacon Chacon
Plaintiff Prudencio Ramirez
Plaintiff Javier Recinos
Plaintiff Honore Otayema Lomenoje
Plaintiff Bokole Umba Dieu

Stacy N Cammarano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph M Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 5 of 9

V. Defendant CoreCivic, Inc.

represented by Daniel Struck Struck Love Bojanowski and Acedo PLC 3100 West Ray Rd. Ste. 300 Chandler, AZ 85226 4804201600 Fax: 4804201695 Email: dstruck@strucklove.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob B Lee Struck Love Bojanowski and Acedo PLC 3100 West Ray Ste. 300 Chandler, AZ 85226 4804201600 Fax: 4804201695 Email: jlee@strucklove.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth M Bernas Carr Maloney P.C. 2020 K Street, NW Suite 850 Washington, DC 20006 2023105568 Fax: 2023105555 Email: Maxwell.Bernas@carrmaloney.com ATTORNEY TO BE NOTICED
Matthew D Berkowitz Carr Maloney PC 2020 K St NW Ste 850 Washington, DC 20006 12023105500 Fax: 12023105555 Email: mb@carrmaloney.com ATTORNEY TO BE NOTICED
Rachel N Love Struck Love Bojanowski and Acedo PLC 3100 West Ray Rd. Ste. 300 Chandler, AZ 85226 4804201600 Fax: 4804201695 Email: rlove@strucklove.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 11/14/2018
11/16/2018

# Docket Text
1 COMPLAINT against CoreCivic, Inc. ( Filing fee $ 400 receipt number 84637033383.), filed by Desmond Ndambi, Nkemtoh Moses Awombang and Mbah Emmanuel Abi. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Summons, # 5 Civil Cover Sheet)(jf3s, Deputy Clerk) (Additional attachment(s) added on 12/11/2018: # 6 Complaint *scanning issues corrected*) (jf3s, Deputy Clerk). (Entered: 11/16/2018)
2 Summons Issued 21 days as to CoreCivic, Inc.(jf3s, Deputy Clerk) (Entered: 11/16/2018)

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 6 of 9

11/28/2018 11/28/2018

3 MOTION to Appear Pro Hac Vice for Daniel P. Struck (Filing fee $100, receipt number 0416−7695122.) by CoreCivic, Inc.(Berkowitz, Matthew) (Entered: 11/28/2018)
4 MOTION to Appear Pro Hac Vice for Jacob B. Lee (Filing fee $100, receipt number 0416−7695158.) by CoreCivic, Inc.(Berkowitz, Matthew) (Entered: 11/28/2018)

11/28/2018

5 MOTION to Appear Pro Hac Vice for Rachel Love (Filing fee $100, receipt number 0416−7695174.) by CoreCivic, Inc.(Berkowitz, Matthew) (Entered: 11/28/2018)

11/28/2018

6 NOTICE of Appearance by Matthew D Berkowitz on behalf of CoreCivic, Inc. (Berkowitz, Matthew) (Entered: 11/28/2018)

11/29/2018 11/29/2018 11/29/2018 11/29/2018

7 (FILED IN ERROR) AFFIDAVIT of Service for Summons and Class Action Complaint with Exhibits served on Corecivic, Inc. (Rebecca Gott, Intake Specialist) on 11/21/2018, filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi.(Sellers, Joseph) Modified on 11/29/2018 (bmhs, Deputy Clerk). (Entered: 11/29/2018)
8 QC NOTICE: 7 Affidavit of Service filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi was filed incorrectly. **Incorrect event was selected. Please refile using the event under Service of Process: Summons Returned Executed. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 11/29/2018)
9 MOTION to Appear Pro Hac Vice for Stacy N. Cammarano (Filing fee $100, receipt number 0416−7699032.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)
10 MOTION to Appear Pro Hac Vice for Robert S. Libman (Filing fee $100, receipt number 0416−7699077.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)

11/29/2018

11 MOTION to Appear Pro Hac Vice for Nancy L. Maldonado (Filing fee $100, receipt number 0416−7699091.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)

11/29/2018 11/29/2018 11/29/2018 11/29/2018 11/30/2018

12 MOTION to Appear Pro Hac Vice for Matthew J. Owens (Filing fee $100, receipt number 0416−7699108.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)
13 MOTION to Appear Pro Hac Vice for Michael Hancock (Filing fee $100, receipt number 0416−7699122.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)
14 MOTION to Appear Pro Hac Vice for Benjamin J. Blustein (Filing fee $100, receipt number 0416−7699131.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)
15 MOTION to Appear Pro Hac Vice for Deanna N. Pihos (Filing fee $100, receipt number 0416−7699145.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi(Sellers, Joseph) (Entered: 11/29/2018)
16 SUMMONS Returned Executed by Desmond Ndambi, Nkemtoh Moses Awombang, Mbah Emmanuel Abi. CoreCivic, Inc. served on 11/21/2018, answer due 12/12/2018.(Sellers, Joseph) (Entered: 11/30/2018)

11/30/2018

17 PAPERLESS ORDER granting 3 Motion to Appear Pro Hac Vice on behalf of Daniel Struck. Directing attorney Daniel Struck to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)

11/30/2018 11/30/2018

18 PAPERLESS ORDER granting 4 Motion to Appear Pro Hac Vice on behalf of Jacob B Lee. Directing attorney Jacob B Lee to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
19 PAPERLESS ORDER granting 5 Motion to Appear Pro Hac Vice on behalf of Rachel Love. Directing attorney Rachel Love to register online for CM/ECF at

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 7 of 9

11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 12/06/2018 12/07/2018
12/10/2018 12/11/2018 12/12/2018 12/13/2018
12/13/2018

http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
20 PAPERLESS ORDER granting 9 Motion to Appear Pro Hac Vice on behalf of Stacy Cammarano. Directing attorney Stacy Cammarano to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
21 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Robert S Libman. Attorney Robert S Libman will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
22 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Nancy Maldonado. Directing attorney Nancy Maldonado to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
23 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of Matthew Owens. Directing attorney Matthew Owens to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
24 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice on behalf of Michael Hancock. Directing attorney Michael Hancock to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
25 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of Benjamin Blustein. Directing attorney Benjamin Blustein to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
26 PAPERLESS ORDER granting 15 Motion to Appear Pro Hac Vice on behalf of Deanna Pihos. Directing attorney Deanna Pihos to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
27 NOTICE by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi of filing Consents to Join Lawsuit of Ivan Chacon Chacon, Prudencio Ramirez and Javier Recinos (Attachments: # 1 Attachment Consents)(Sellers, Joseph) (Entered: 12/06/2018)
28 QC NOTICE: 27 Notice (Other) filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi was filed incorrectly. **Please add the new plaintiffs (Filers) when prompted. They have been added for you this time but please add them in the future. (bmhs, Deputy Clerk) (Entered: 12/07/2018)
29 Consent MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by CoreCivic, Inc. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Struck, Daniel) (Entered: 12/10/2018)
30 ORDER granting 29 Motion for Extension of Time. Signed by Judge Richard D. Bennett on 12/11/2018. (bmhs, Deputy Clerk) (Entered: 12/11/2018)
31 (FILED IN ERROR) Local Rule 103.3 Disclosure Statement by CoreCivic, Inc. (Struck, Daniel) Modified on 12/13/2018 (bmhs, Deputy Clerk). (Entered: 12/12/2018)
32 QC NOTICE: 31 Local Rule 103.3 Disclosure Statement filed by CoreCivic, Inc. was filed incorrectly. **The Local Rule 103.3 Disclosure Statement needs to be refiled and the corporate parent and/or affiliations need to be entered when the system prompts you. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 12/13/2018)
33 Local Rule 103.3 Disclosure Statement by CoreCivic, Inc. identifying Other Affiliate ACS Corrections of Texas, LLC, Other Affiliate APM Ltd., Other Affiliate Avalon

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 8 of 9

12/18/2018 12/18/2018 01/11/2019 01/18/2019 01/22/2019 02/01/2019 02/08/2019 02/11/2019 02/25/2019
02/26/2019
02/27/2019

Corpus Christi Transitional Center, LLC, Other Affiliate Avalon Correctional Services, Inc., Other Affiliate Avalon Transitional Center Dallas, LLC, Other Affiliate Avalon Tulsa, LLC, Other Affiliate Carver Transitional Center, LLC, Other Affiliate CCA Health Services LLC, Other Affiliate CCA International LLC, Other Affiliate CCA South Texas, LLC, Other Affiliate CCA UK Ltd., Other Affiliate CoreCivic Government Solutions LLC, Other Affiliate CoreCivic, LLC, Other Affiliate CoreCivic of Kansas Holdings LLC, Other Affiliate CoreCivic of Kansas LLC, Other Affiliate CoreCivic of Tallahassee, LLC, Other Affiliate CoreCivic of Tennessee LLC, Other Affiliate CoreCivic TRS LLC, Other Affiliate Correctional Alternatives, LLC, Other Affiliate Correctional Mgmt., Inc., Other Affiliate EP Horizon Management LLC, Other Affiliate Fort Worth Transitional Center, LLC, Other Affiliate Green Level Realty, LLC, Other Affiliate National Offender Mgmt. Systems, LLC, Other Affiliate Prison Realty Mgmt., LLC, Other Affiliate Project South, Other Affiliate Rocky Mountain Offender Mgt. Systems, LLC, Other Affiliate Southern Corrections System of Wyoming, LLC, Other Affiliate SSA Baltimore Holdings LLC, Other Affiliate SSA Baltimore LLC, Other Affiliate Technical & Bus Inst. of America LLC, Other Affiliate Time to Change, Inc., Other Affiliate TransCor America LLC, Other Affiliate TransCor Puerto Rico Inc., Other Affiliate Turley Residential Center, LLC for CoreCivic, Inc..(Struck, Daniel) (Entered: 12/13/2018)
34 NOTICE by Honore Otayema Lomenoje, Bokole Umba Dieu Consent to Join Lawsuit (Attachments: # 1 Attachment Dieu, # 2 Attachment Lomenoje)(Sellers, Joseph) (Entered: 12/18/2018)
35 NOTICE of Appearance by Kenneth M Bernas on behalf of CoreCivic, Inc. (Bernas, Kenneth) (Entered: 12/18/2018)
36 MOTION to Dismiss for Failure to State a Claim by CoreCivic, Inc. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Struck, Daniel) (Entered: 01/11/2019)
37 MOTION for Extension of Time (Unopposed) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Ivan Chacon Chacon, Bokole Umba Dieu, Honore Otayema Lomenoje, Desmond Ndambi, Prudencio Ramirez, Javier Recinos (Attachments: # 1 Text of Proposed Order)(Sellers, Joseph) (Entered: 01/18/2019)
38 ORDER granting 37 Unopposed Motion for Extension of Time. Signed by Judge Richard D. Bennett on 1/22/2019. (bmhs, Deputy Clerk) (Entered: 01/22/2019)
39 RESPONSE in Opposition re 36 MOTION to Dismiss for Failure to State a Claim filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Sellers, Joseph) (Entered: 02/01/2019)
40 Consent MOTION for Extension of Time to File Response/Reply as to 36 MOTION to Dismiss for Failure to State a Claim by CoreCivic, Inc.. (Attachments: # 1 Text of Proposed Order)(Struck, Daniel) (Entered: 02/08/2019)
41 ORDER granting 40 Consent Motion for Extension of Time. Signed by Judge Richard D. Bennett on 2/11/2019. (bmhs, Deputy Clerk) (Entered: 02/12/2019)
42 MOTION to Appear Pro Hac Vice for R. Andrew Free (Filing fee $100, receipt number 0416−7855550.) by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Ivan Chacon Chacon, Bokole Umba Dieu, Honore Otayema Lomenoje, Desmond Ndambi, Prudencio Ramirez, Javier Recinos (Attachments: # 1 Attachment Continuation Page for 2.)(Sellers, Joseph) (Entered: 02/25/2019)
43 MOTION to Certify Class Conditionally and Issuance of Notice by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Text of Proposed Order)(Sellers, Joseph) (Entered: 02/26/2019)
44 PAPERLESS ORDER granting 42 Motion to Appear Pro Hac Vice on behalf of R Andrew Free. Directing attorney R Andrew Free to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/27/2019. (srd, Deputy Clerk) (Entered: 02/27/2019)

Case: 1:18-cv-3521 As of: 08/09/2020 08:51 PM EDT 9 of 9

03/08/2019 03/12/2019

45 REPLY to Response to Motion re 36 MOTION to Dismiss for Failure to State a Claim filed by CoreCivic, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Struck, Daniel) (Entered: 03/08/2019)
46 RESPONSE in Opposition re 43 MOTION to Certify Class Conditionally and Issuance of Notice filed by CoreCivic, Inc.. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Struck, Daniel) (Entered: 03/12/2019)

03/12/2019

47 MOTION for Leave to File Supplemental Opposition to Plaintiffs' Motion for Conditional Certification and Issuance of Notice by CoreCivic, Inc. (Attachments: # 1 Text of Proposed Order)(Struck, Daniel) (Entered: 03/12/2019)

03/26/2019

48 RESPONSE in Support re 43 MOTION to Certify Class Conditionally and Issuance of Notice filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi.(Sellers, Joseph) (Entered: 03/26/2019)

09/27/2019 10/25/2019 10/28/2019 10/31/2019

49 MEMORANDUM ORDER GRANTING 36 Motion to Dismiss; DISMISSING w/prejudice 1 Complaint; DENYING AS MOOT 43 Motion for Conditional Certification and Issuance of Notice. Signed by Judge Richard D. Bennett on 9/27/2019. (hmls, Deputy Clerk) (Entered: 09/27/2019)
50 NOTICE OF APPEAL as to 49 Memorandum and Order, Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Certify Class by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi. Filing fee $ 505, receipt number 0416−8312185.(Libman, Robert) (Entered: 10/25/2019)
51 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 50 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(ko, Deputy Clerk) (Entered: 10/28/2019)
52 USCA Case Number 19−2207 for 50 Notice of Appeal, filed by Mbah Emmanuel Abi, Nkemtoh Moses Awombang, Desmond Ndambi. Case Manager − Michael Radday (ko, Deputy Clerk) (Entered: 10/31/2019)

 
 Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

DESMOND NDAMBI et al.,

*

Plaintiff, v.

* Civil Action No. RDB-18-3521
*

CORECIVIC, INC.,

*

Defendant.

*

* * * * * * * * * * * * ** MEMORANDUM ORDER

Plaintiffs are former Immigration and Customs Enforcement (ICE) detainees who

were held at the Cibola County Correctional Facility (“Cibola”) in New Mexico while awaiting

civil immigration proceedings. (Compl. ¶¶ 1-3, ECF No. 1.) They bring this purported class

action against Defendant, CoreCivic Inc. (“CoreCivic”), who owns and operates the detention

facility where Plaintiffs were held pursuant to an Intergovernmental Service Agreement

between ICE and Cibola County. (Id. at ¶ 19.) Defendant operates a work program at Cibola

where detainees are permitted to voluntarily perform work duties in the facility. (Id. at ¶ 26.)

Plaintiffs participated in this work program at Cibola. (Id. ¶¶ 34-54.) Plaintiffs filed a

complaint in this Court based on federal question, diversity, and supplemental jurisdiction

pursuant to 28 U.S.C. §§ 13311, 13322, and 13673. (Id. at ¶¶ 4-8.) Plaintiffs allege they were

1

29 U.S.C. § 206 (Fair Labor Standards Act) is a Federal Statute.

2

Defendant is organized under Maryland Law, and at least one class member of the purported

class action is of diverse citizenship from Defendant.

3

This Court has supplemental jurisdiction over the New Mexico State law claims as they arise

out of the same occurrence as the alleged Federal claim.

Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 2 of 6
employees of CoreCivic under the Fair Labor Standards Act (“FLSA”) and New Mexico Minimum Wage Act (“NMMWA”) and were paid at a rate below that which is required by the FLSA and NMMWA and that the Defendant was unjustly enriched by these alleged violations. (Id. at ¶¶ 89-110) Defendant filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) arguing that Plaintiffs’ claims should be dismissed as the Plaintiffs were not “employees” under the FLSA and NMMWA and, thus, not required to be paid minimum wage. (Mot. Mem. 1, ECF No. 36-1.)
Now pending before this Court is Defendants’ Motion to Dismiss (ECF No. 36) and Plaintiffs’ Motion for Conditional Certification and Issuance of Notice (ECF No. 43). The parties’ submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). As discussed below, Plaintiffs cannot be considered “employees” of the Defendant during their detention. Therefore, this Court shall GRANT Defendant’s dismissal motion, and Plaintiffs’ motion for certification shall be DENIED AS MOOT.
STANDARD OF REVIEW Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). While a complaint need not include “detailed factual allegations,” it must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a Rule 12(b)(6) motion, a court “ ‘must accept as true all of the factual allegations contained in the complaint’ ” and must “ ‘draw all
2

Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 3 of 6
reasonable inferences [from those facts] in favor of the plaintiff.’ ” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); Hall v. DirectTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). However, a court is not required to accept legal conclusions drawn from those facts. Iqbal, 556 U.S. at 678.
ANALYSIS I. Plaintiffs were not employees under the FLSA and NMMWA as they were
detainees being held in anticipation of civil immigration proceedings. Plaintiffs contend that they were entitled to be paid a minimum wage by the Defendant for work program they engaged in while being held as detainees at Cibola. Plaintiffs allege that they were employees, as defined by the FLSA and NMMWA, and that, as employees, Defendant was required to pay them the minimum wage as set by the federal government and the State of New Mexico. (Compl. at ¶¶ 34-54, ECF No. 1.) Defendant argues that the Plaintiffs were not employees, as they were detainees being held in custody pending civil immigration proceedings and the economic reality of the detention could not have given rise to an employment relationship as contemplated by the FLSA and NMMWA. (Mot. Mem. 12, ECF 36-1.) Both the FLSA and NMMWA require employers to compensate employees for all hours worked at a rate that is not less than the minimum wage. 29 U.S.C. § 206(a)(1); NM ST § 4-22. The FLSA and NMMWA only apply to “employees.” 29 U.S.C. § 206(a)(1); NM ST § 4-22. The definition of employee in the FLSA and NMMWA are similar. Garcia v. American Furniture Co., 689 P.2d 934, 937 (N.M. Ct. App. 1984) (noting that the definition of “employ” was almost identical in the New Mexico statute as in the FLSA). Courts generally look to the “economic reality” of an individual’s status in determining whether they are an “employee.”
3

Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 4 of 6
Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961). The Fourth Circuit has held that prisoners are not “employees” under the FLSA. Harker v. State Use Industries, 990 F.2d 131, 133 (4th Cir. 1993). The Fifth Circuit has held that civil immigration detainees, like prison inmates, are not “employees” as contemplated by the FLSA. Alvarado Guevara v. I.N.S., 902 F. 2d 394, 396 (5th Cir. 1990).
In this case, Plaintiffs cannot be considered “employees” as defined by the FLSA or NMMWA. CoreCivic, under the Intergovernmental Service Agreement, was required to offer a voluntary work program for ICE detainees at Cibola. (Def. Mot. to Dismiss at 2 ECF No. 36-1.) Plaintiffs were incarcerated detainees in this facility awaiting civil immigration proceedings and engaged in work offered by the Defendant on an entirely voluntary basis through this program. (Compl. at ¶¶ 34-54 ECF No. 1.) The economic reality of the Plaintiffs’ situation is almost identical to a prison inmate and does not share commonality with that of a traditional employer-employee relationship. Accordingly, Plaintiffs were not “employees” of the Defendant during their detention. II. As Plaintiffs were not employees under the FLSA and NMMWA, their claims
against CoreCivic pursuant to these laws (Counts I and II) must be dismissed. In order to bring a claim under the FLSA or NMMWA, Plaintiffs must show that they are employees of the Defendant. 29 U.S.C. § 206(a)(1); NM ST § 4-22. In this case, Plaintiffs, as detainees, were not employees of CoreCivic and are not entitled to bring a claim against the Defendant under the FLSA or the NMMWA. As a result, Plaintiffs’ claims under the FLSA and NMMWA shall be DISMISSED WITH PREJUDICE. III. As Defendant’s actions were lawful, Plaintiffs claim of unjust enrichment (Count III) must be dismissed.
4

Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 5 of 6
Plaintiffs also allege that Defendant’s use of their labor constitutes unjust enrichement in violation of New Mexico law. (Compl. at ¶¶ 105-10 ECF No. 1.) To prevail in an unjust enrichment claim “. . .one must show that: (1) another has been knowingly benefitted at one’s expense (2) in a manner such that allowance of the other to retain the benefit would be unjust.” Ontiveros Insulation Co., Inc. v. Sanchez, 3 P.3d 695, 698 (N.M. Ct. App. 2000).
The Plaintiffs’ claim of unjust enrichement against CoreCivic is entirely dependent on CoreCivic’s alleged violation of the FLSA and NMMWA. (Compl. ECF No. 1 at 21-22.) As Defendant’s actions in this case were not in violation of the FLSA or NMMWA since the Plaintiffs were not “employees”, Plaintiffs’ claim of unjust enrichment is not cognizable and shall be DISMISSED WITH PREJUDICE. IV. Plaintiffs’ Motion for Conditional Certification and Issuance of Notice must be
denied as moot. As the Plaintiffs have no cognizable claims, it is not necessary for this Court to analyze the issue of conditional certification. Accordingly, the Plaintiffs’ Motion for Conditional Certification and Issuance of Notice shall be DENIED AS MOOT.
CONCLUSION For the foregoing reasons, it is HEREBY ORDERED this 27th day of September 2019 that:
1. Defendant’s Motion to Dismiss (ECF No. 36) is GRANTED; 2. Plaintiffs Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE; 3. Plaintiffs Motion for Conditional Certification and Issuance of Notice (ECF
No. 43) is DENIED AS MOOT; 4. The Clerk of Court shall transmit a copy of this Order to counsel of record; 5. The Clerk of Court shall CLOSE THIS CASE.
5

Case 1:18-cv-03521-RDB Document 49 Filed 09/27/19 Page 6 of 6
_______/s/_______________ Richard D. Bennett United States District Judge
6