IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

MARCELA OLVERA-MORALES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,

Civ. No. ___________________ _________________________, J.

v.
STERLING ONIONS, INC.; ZAPPALA FARMS, LLC; ZAPPALA HOLDING COMPANY, LLC; ZAPPALA ENTERPRISES, INC.; JAMES ZAPPALA; INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.; NORTH CAROLINA GROWERS’ ASSOCIATION, INC.; and DEL-AL ASSOCIATES, INC.,

CLASS ACTION COMPLAINT FOR COMPENSATORY, INJUNCTIVE, AND DECLARATORY RELIEF

Defendants.

PRELIMINARY STATEMENT 1. Marcela Olvera-Morales, an unskilled farmworker, brings this case to vindicate her right and the rights of similarly situated women to equal employment opportunities. In 1999, when Ms. Olvera-Morales sought employment as a guestworker, the defendant employment agencies and employers deliberately steered her and other women like her into lower paying jobs with fewer benefits. Though she and other unskilled women workers were qualified for higher paying positions with significantly greater benefits, defendants reserved those jobs almost exclusively for men. Thousands of women workers throughout the country have been affected by the defendants’ policies and practices of discriminating on the basis of sex.

2. Ms. Olvera-Morales brings several of her claims as a class action on behalf of herself and all other similarly situated women against International Labor Management Corporation, Inc. (“ILMC”), North Carolina Growers’ Association, Inc. (“NCGA”), and Del-Al Associates, Inc. (“Del-Al”), who are large employment agencies that recruit and hire workers from Mexico and elsewhere to work in the United States under the H-2A and H-2B visa programs. The H-2A and H-2B visa programs are for non-immigrant, temporary guestworkers. Ms. Olvera-Morales and the class she represents charge that ILMC, NCGA, and Del-Al, who recruited them, hired them, and placed them in H-2B positions in the United States, discriminate against female guestworkers by steering them into less desirable positions as H-2B workers and refusing to hire them for, or assign them to, more desirable positions as H-2A workers. 3. Ms. Olvera-Morales brings several claims on her own behalf against Sterling Onions, Inc., Zappala Farms, LLC, Zappala Holding Company, Zappala Enterprises, Inc., James Zappala, ILMC and NCGA, all of whom employ, in the United States, both H-2A and H-2B workers recruited by ILMC, NCGA, Del-Al, and others. Ms. Olvera-Morales charges that these employers, who employed her as an H-2B worker, discriminated against her on the basis of sex by refusing to hire her for, assign her to, or employ her in an H-2A position because she is a woman.
JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, as a case arising under the laws of the United States; under 28 U.S.C. § 1343(d), as a case seeking relief under an Act of Congress providing for the protection of civil rights; under 42 U.S.C § 2000e-5(f)(3), as a case brought under Title VII of the Civil
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Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; and under 28 U.S.C. § 1367, as a case alleging state law claims warranting the exercise of this Court’s supplemental jurisdiction. 5. Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C § 2000e5(f)(3).
THE PARTIES Named Plaintiff 6. Plaintiff Marcela Olvera-Morales (“Ms. Olvera-Morales”) is a woman who resides in Mexico. On or about July 20, 1999, Ms. Olvera-Morales was recruited by Defendants International Labor Management Corporation, Inc. (“ILMC”), North Carolina Growers’ Association, Inc. (“NCGA”), and Del-Al Associates, Inc. to work in the United States pursuant to the H-2B visa program. She was an employee of Defendants ILMC and NCGA from July 20, 1999 until February 19, 2000. She was also an employee of Defendants Sterling Onions, Inc., Zappala Farms, LLC, Zappala Holding Company, LLC, Zappala Enterprises, Inc., James Zappala, and unnamed actor Agway, Inc. from November 1999 until February 19, 2000. Defendants Zappala Entities 7. Defendant Sterling Onions, Inc. (“Sterling Onions”) is a company incorporated under the laws of the State of New York with its principal places of business at 1389 Curtis Co-op Road, Sterling, New York 13156 and 11404 Schuler Road, Cato, New York 13033. Its telephone numbers are (315) 564-6000 and (315) 947-5166. 8. Defendant Zappala Farms, LLC (“Zappala Farms”) is a limited liability company with its principal places of business at 1389 Curtis Co-op Road, Sterling, New York
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13156 and 11404 Schuler Road, Cato, New York 13033. Its telephone number is (315) 564-6000. 9. Defendant Zappala Holding Company, LLC (“Zappala Holding”) is a limited liability company with its principal place of business at 11404 Schuler Road, Cato, New York 13033. 10. Defendant Zappala Enterprises, Inc. (“Zappala Enterprises”) is a company incorporated under the laws of the State of New York with its principal place of business at 11404 Schuler Road, Cato, New York 13033. Its telephone number is (315) 564-6000. 11. Defendant James Zappala is an individual residing at 11404 Schuler Road, Cato, New York 13033. His telephone number is (315) 564-6000. 12. Defendants Sterling Onions, Zappala Farms, Zappala Holding, Zappala Enterprises, and James Zappala (together, “the Zappala Entities”) are intertwined New York-based entities engaged in the business of growing, harvesting, grading, packing, storing, acquiring, and distributing onions. 13. At all relevant times, James Zappala was the head of each of the Zappala Entities.
a. On information and belief, James Zappala was the President, sole owner, sole office-holder, sole shareholder, and sole director of Sterling Onions.
b. On information and belief, James Zappala was the President, sole owner, sole office-holder, sole shareholder, and sole director of Zappala Enterprises. On information and belief, the primary purpose of Zappala Enterprises was to be a corporate member of Zappala Farms.
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c. On information and belief, James Zappala was one of two members of Zappala Holding; the other member was not independent of James Zappala or the other Zappala Entities.
d. On information and belief, Zappala Farms was run by James Zappala and was comprised of three members: James Zappala, Zappala Enterprises, and the Zappala Family Trust. 14. On information and belief, at all relevant times, James Zappala was the President and sole managerial employee of Empire Sweets, an onion production and distribution division of the Country Best division of the Country Product Foods Group division of Agway, Inc. (“Agway”). Empire Sweets grew, packed and distributed a brand of onions produced in New York called “Empire Sweets.” Ms. Olvera-Morales packed Empire Sweets onions. 15. On information and belief, James Zappala conducted business for each of the Zappala Entities at the same locations in Cato and Sterling, New York. 16. On information and belief, at all relevant times, each of the Zappala Entities maintained their business records at the same locations in Cato and Sterling, New York. 17. At all relevant times, each of the Zappala Entities shared property, facilities, and equipment. In addition, each of the Zappala Entities shared in the use, operation, management or ownership of housing facilities for seasonal workers. 18. At all relevant times, the Zappala Entities grew, harvested, graded, packed, stored and distributed onions exclusively or primarily for the Empire Sweets division of Agway. 19. At all relevant times, each of the Zappala Entities shared many of the same managers and employees and shared in the supervision of those employees.
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20. At all relevant times, the Zappala Entities employed seasonal workers under both the H-2A and H-2B visa programs. The Zappala Entities employed Plaintiff OlveraMorales under the H-2B visa program. 21. At all relevant times, the Zappala Entities exercised a significant degree of control over the terms and conditions of Ms. Olvera-Morales’ employment, including, but not limited to, her access to employment opportunities, hiring, training, supervision, transfer, employment policies, and the means and manner of her work performance. 22. At all relevant times, defendants Sterling Onions, Zappala Farms, Zappala Holding, Zappala Enterprises, and James Zappala were single or integrated enterprises. 23. At all relevant times, defendants Sterling Onions, Zappala Farms, Zappala Holding, Zappala Enterprises, and James Zappala were alter egos. Defendants ILMC and NCGA 24. Defendant International Labor Management Corporation, Inc. (“ILMC”) is a company incorporated under the laws of North Carolina with its principal place of business at 230 Cameron Avenue, Vass, North Carolina 28394-9116. Its telephone number is (910) 245-4808, and its facsimile number is (910) 245-3891. 25. Defendant North Carolina Growers Association, Inc. (“NCGA”) is a company incorporated under the laws of North Carolina with its principal place of business at 230 Cameron Avenue, Vass, North Carolina 28394-9116. Its telephone number is (910) 2454808, and its facsimile number is (910) 245-3891. 26. At all relevant times, ILMC and NCGA were intertwined entities that recruited, procured, and hired H-2A and H-2B workers, including Ms. Olvera-Morales and other
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female H-2B workers, for growers, including the Zappala Entities and other entities in New York and other states. 27. At all relevant times, ILMC and NCGA employed H-2A and H-2B workers, including Ms. Olvera-Morales and other female H-2B workers. 28. At all relevant times, ILMC and NCGA exercised a significant degree of control over the terms and conditions of the employment of Ms. Olvera-Morales and other female H-2B workers. The areas of control included, but were not limited to, hiring, training, supervision, work assignments, transfers, employment policies, the workers’ access to employment opportunities, and the means and manner of the workers’ work performance. 29. During the relevant period, ILMC and NCGA maintained ongoing contact with Ms. Olvera-Morales and other female H-2B workers after recruiting and hiring them and continued to manage and facilitate aspects of their employment. 30. On information and belief, C. Stan Eury (also known as Craig Eury) was the President of both ILMC and NCGA and ran and operated ILMC and NCGA from the same location. 31. On information and belief, ILMC and NCGA shared resources, including staff, managers, and a network of recruiting agents, in connection with their recruitment and employment of H-2A and H-2B workers. 32. At all relevant times, ILMC and NCGA were single or integrated enterprises. 33. At all relevant times, ILMC and NCGA were alter egos.
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Defendant Del-Al 34. Defendant Del-Al Associates, Inc. (“Del-Al”) is a company incorporated under the laws of Texas with its business addresses at 880 Flordon Drive, Charlottesville, VA 22903 and 7550 IH 10 West, Ste. 800, San Antonio, TX 78229. On information and belief, Del Al operates largely out of San Antonio, Texas. 35. At all relevant times, Del-Al recruited and procured H-2A and H-2B workers, including Ms. Olvera-Morales and other female H-2B workers, in concert with and on behalf of ILMC and NCGA, for growers, including the Zappala Entities and other entities in New York and other states.
EMPLOYER AND EMPLOYMENT AGENCY ALLEGATIONS 36. At all relevant times, Sterling Onions, Zappala Farms, Zappala Holding, Zappala Enterprises, James Zappala, ILMC, and NCGA (“the Employer Defendants”) were “employers” within the meaning of Title VII of the Civil Rights Act of 1964 and under the New York Human Rights Law. 37. At all relevant times, the Zappala Entities, ILMC, and NCGA were joint employers. 38. At all relevant times, the Zappala Entities, ILMC, and NCGA were simultaneous employers. 39. At all relevant times, the Zappala Entities, ILMC, and NCGA exercised a significant degree of control over the terms and conditions of Ms. Olvera-Morales’ employment, and ILMC and NCGA exercised a significant degree of control over the terms and conditions of the employment of the members of the plaintiff class.
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40. The Zappala Entities, ILMC, and NCGA have an identity of interest with respect to the employer claims alleged in this Complaint. 41. On October 1, 2002, Agway and a number of its subsidiaries, including the Country Best Products Food Group, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code. Pursuant to 11 U.S.C. § 362(a), plaintiffs are unable to name Agway as a defendant in the Complaint at this time. Were it not for Agway’s bankruptcy filing, plaintiffs would have named Agway as a defendant in this Complaint, as an employer that exercised a significant degree of control over Ms. Olvera-Morales’ employment and as a joint and simultaneous employer with the Zappala Entities, ILMC, and NCGA. 42. At all relevant times, ILMC, NCGA, and Del-Al (“the Employment Agency Defendants”) were “employment agencies” within the meaning of Title VII of the Civil Rights Act of 1964 and under the New York Human Rights Law. 43. ILMC, NCGA, and Del-Al have an identity of interest with respect to the employment agency claims alleged in this Complaint.
CLASS ALLEGATIONS 44. Plaintiff brings Counts II, IV, and V of this action as a class action against the Employment Agency Defendants pursuant to Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure. 45. The plaintiff class consists of all female H-2B workers recruited by the Employment Agency Defendants to work in the United States from the years 1999 to the present.
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46. For the purpose of injunctive relief sought pursuant Federal Rule of Civil Procedure 23(b)(2), the class consists of all female workers who were or will be recruited by the Employment Agency Defendants for employment as H-2A or H-2B workers in the United States. 47. The plaintiff class is so numerous that joinder of all members is impracticable. On information and belief, the Employment Agency Defendants recruit more than three hundred women annually to work in the United States under the H-2B visa program. 48. Questions of law and fact common to all members of the class predominate over questions relating to individual members of the class. The claims set forth in Counts II, IV, and V of this Complaint apply to all members of the class and these claims do not vary with the individual factual circumstances of the class members. 49. The claims of the named plaintiff are typical of the claims of the class. 50. The named plaintiff will fairly and adequately represent the interests of the class. The named plaintiff has no claims that are adverse to the claims of the class. 51. The named plaintiff and her class are represented by Farmworker Legal Services of New York and the NOW Legal Defense and Education Fund. These attorneys are experienced in class action litigation and will adequately and fairly represent the interests of the class. 52. The Employment Agency Defendants have acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole. 53. The prosecution of separate actions by individual class members would unduly burden the courts and create the possibility of inconsistent or conflicting decisions.
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54. A class action under Federal Rule of Civil Procedure 23(b)(3) is superior to other available methods of adjudicating the claims in Counts II, IV, and V of this action because, among other reasons:
a. Common issues of law and fact, as well as the relatively small claim of each class member, substantially diminish the interest of class members in individually controlling the prosecution of separate actions;
b. Many of the class members are unaware of their rights to prosecute these claims and lack the means or resources to seek legal assistance;
c. There has been no litigation already commenced by other class members to determine the questions presented in this Complaint; and
d. A class action can be managed without undue difficulty. PROCEDURAL HISTORY
55. On April 18, 2000, Ms. Olvera-Morales, on behalf of herself and others similarly situated, filed Charges of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on the events alleged in this Complaint. 56. On March 15, 2002 and again on or about June 24, 2002, Ms. Olvera-Morales amended her Charges. 57. On September 16, 2002 the EEOC District Director issued a Determination finding reasonable cause to believe that the defendants (who were the respondents to Ms. Olvera-Morales’s Charges of Discrimination) violated Title VII of the Civil Rights Act of 1964.
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58. On September 26, 2002, the EEOC issued Right to Sue letters authorizing Ms. Olvera-Morales and the class she represents to file a lawsuit against the defendants based on the Charges of Discrimination.
THE NATURE OF THE COMPLAINT The H-2A and H-2B Visa Programs 59. The Employment Agency Defendants recruited Ms. Olvera-Morales and other female workers, and the Employer Defendants employed Ms. Olvera-Morales, to work in the United States under the H-2B temporary guestworker visa program, pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), and not under the H-2A temporary guestworker visa program, pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(a). 60. The H-2A visa program enables aliens who reside outside of the United States to work temporarily in the United States performing agricultural labor services. The H-2B visa program enables aliens who reside outside of the United States to work temporarily in the United States performing non-agricultural labor services. 61. In a number of circumstances, there is little distinction between jobs classified as “agricultural” or “non-agricultural.” Many employers of farm workers classify certain employee positions as non-agricultural. 62. Under federal law, women and men are equally eligible for H-2A and H-2B visas. There is no difference in the qualifications for these visas. 63. Under both the H-2A and H-2B visa programs, United States employers and employment agencies apply to the United States government for authorization to hire non-immigrant aliens as temporary H-2A and H-2B workers. Once the United States government grants permission to the employers and employment agencies to hire a
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specified number of H-2A and H-2B workers, the employers and employment agencies select the non-immigrant aliens they will hire for H-2A and H-2B positions. The United States government does not select which aliens will be offered H-2A and which will be offered H-2B positions. 64. H-2A visas offer workers many advantages over H-2B visas, including higher wages, guaranteed periods of employment, and free housing, among others. 65. The wages for H-2A workers are typically higher than those for H-2B workers. The H-2A program requires employers to pay the highest of (i) the area and activity’s prevailing wage, (ii) the state or federal minimum wage, or (iii) the adverse effect wage rate (“AEWR”), which is a rate calculated by the Department of Labor. The H-2B program requires only that workers be paid the prevailing wage for the occupation. The prevailing wage is typically significantly lower than the AEWR. 66. H-2A workers receive greater housing benefits than do H-2B workers. Under the H-2A program, employers are required to provide H-2A workers with free housing; there is no such requirement under the H-2B program. In addition, housing for H-2A workers is required to meet minimum regulatory standards not applicable to housing for H-2B workers. 67. H-2A workers are entitled by law to a written employment contract (or work order). H-2B workers are not entitled to, and typically do not receive, a written contract. 68. H-2A workers receive greater work guarantees than do H-2B workers. Under the H-2A program, an employer must offer an H-2A employee work for at least three-fourths of the total workdays specified in the work order, for at least the number of hours specified in the work order. If an employer violates the three-fourths guarantee, the
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employer must pay the employee the difference between the wages earned and the wages the worker would have earned if the employer had met the three-fourths guarantee. Under the H-2B program, there is no minimum work guarantee. 69. Federal regulations require employers to provide H-2A workers with free tools unless it is the prevailing practice in the area not to provide tools. There is no such requirement in the H-2B program. 70. H-2A workers receive greater transportation benefits than do H-2B workers. The H-2A program requires an employer to reimburse each H-2A worker’s inbound transportation expenses from the point of recruitment to the work site, including subsistence expenses, once the employee has completed 50 percent of the contract period. Once the employee has completed the entire contract period, the employer must pay the H-2A worker’s return transportation and subsistence expenses to the place of recruitment or to the worker’s next job, if applicable. In addition, the employer must pay for the H2A worker’s transportation from their housing units to the work sites. The H-2B program does not require that an employer reimburse H-2B workers for transportation and subsistence expenses. Defendants’ Recruitment, Hiring, and Employment of Plaintiffs 71. Throughout the relevant period and beyond, the Employment Agency Defendants recruited male and female workers in Mexico to work in the United States for the Employer Defendants and other employers throughout the United States under both the H-2A and H-2B visa programs. The Employment Agency Defendants simultaneously recruited workers for H-2A and H-2B jobs.
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72. Throughout the class period and beyond, the Employer Defendants used ILMC, NCGA, and Del-Al as hiring agents for both H-2A and H-2B workers. 73. The Employment Agency Defendants recruited, and the Employer Defendants employed, unskilled workers for both H-2A and H-2B visa positions. 74. When a woman applies to be placed by ILMC, NCGA, and Del-Al in a guestworker position, ILMC, NCGA, and Del-Al almost always send the woman to work in an H-2B position and not in an H-2A position. 75. To fill H-2A positions, the Employer Defendants almost always seek male workers. 76. The members of the plaintiff class were qualified to work in both H-2A and H-2B positions. 77. Guestworkers coming to the United States generally prefer the H-2A program to the H-2B program because the H-2A program offers workers many advantages not available to H-2B workers. 78. On information and belief, both the Employment Agency and the Employer Defendants were aware of the advantages for workers of the H-2A program over the H2B program. 79. ILMC, NCGA, and Del-Al have placed women, including Ms. Olvera-Morales, in H-2B positions in New York and elsewhere in the United States. 80. ILMC, NCGA, and Del-Al regularly place men in H-2A positions in New York and elsewhere in the United States. 81. On information and belief, at least until 2001, the Employment Agency Defendants had never placed a woman in an H-2A position in New York.
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82. ILMC, NCGA, and Del-Al rarely place women in H-2A positions elsewhere in the United States. On the rare occasions when ILMC, NGCA, and Del-Al place women in H-2A positions, it is usually for work in plant nurseries. 83. The male H-2A workers recruited by ILMC, NCGA, and Del-Al had similar qualifications to Ms. Olvera-Morales and other female H-2B workers. 84. The Zappala Entities, ILMC and NCGA have hired H-2A workers to work in the onion fields and elsewhere. 85. The Zappala Entities, ILMC and NCGA employed male H-2A workers throughout the relevant period. 86. On information and belief, at least until 2001, the Zappala Entities had never hired a woman as an H-2A worker. 87. The Zappala Entities never offered Ms. Olvera-Morales a position as an H-2A worker. 88. The male H-2A workers employed by the Zappala Entities, ILMC and NCGA had similar or lesser qualifications than Ms. Olvera-Morales. Defendants’ Recruitment, Hiring and Employment of Ms. Olvera-Morales 89. In July 1999, the Employment Agency Defendants recruited Ms. Olvera-Morales in Mexico to work in the United States. 90. In July 1999, the Employment Agency Defendants provided Ms. Olvera-Morales with an H-2B visa to work as a temporary guestworker in the United States. 91. The Employment Agency Defendants did not offer Ms. Olvera-Morales a position as an H-2A worker. Nor did the Employment Agency Defendants inform Ms. OlveraMorales about the H-2A visa program.
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92. Ms. Olvera-Morales was qualified to work both as an H-2A worker and as an H2B worker. 93. Ms. Olvera-Morales would have preferred to work in the United States as an H2A worker rather than as an H-2B worker. 94. On July 20, 1999, the Employment Agency Defendants sent Ms. Olvera-Morales to work as an H-2B worker in a packing shed in Michigan packing carrots. 95. During the period from July 20, 1999 until November 1999, Ms. Olvera-Morales was an H-2B employee of ILMC, NCGA, and another entity in Michigan. 96. Unlike H-2A workers, Ms. Olvera-Morales had to pay for her transportation from Mexico to Michigan as well as for her subsistence costs while she was traveling. 97. In Michigan, Ms. Olvera-Morales was paid $5.15 per hour, before deductions. Ten dollars were deducted each week from her wages to pay for her housing. She did not receive an employment contract or any work guarantees. 98. In contrast, H-2A workers received higher wages, free housing, employment contracts, and work guarantees. 99. In November 1999, ILMC and NCGA transferred Ms. Olvera-Morales to work in a packing shed in New York packing onions for the Zappala Entities. 100. During the period of November 1999 until February 19, 2000, Ms. OlveraMorales was an H-2B employee of the Zappala Entities, ILMC, and NCGA. 101. The Employer Defendants did not offer Ms. Olvera-Morales a position as an H2A worker. 102. In New York, the Employer Defendants paid Ms. Olvera-Morales and other female H-2B workers $6.00 per hour before deductions. The Employer Defendants also
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deducted from Ms. Olvera-Morales’ wages $20.00 per week for housing and $5.00 per week for transportation from the housing camps to the packing shed where she worked. 103. During that same period, the Employer Defendants paid H-2A workers the AEWR of $7.16 per hour in 1999 and $7.68 per hour in 2000. 104. While the Employer Defendants charged Ms. Olvera-Morales and other H-2B workers for their housing, they did not charge H-2A workers for housing. 105. While the Employer Defendants charged Ms. Olvera-Morales and other H-2B workers for transportation to the work sites, they did not charge H-2A workers for transportation. 106. Unlike what was required for H-2A workers, the Employer Defendants did not reimburse Ms. Olvera-Morales for her transportation and subsistence expenses from Michigan to New York or from New York back to Mexico. 107. Unlike what was required for H-2A workers, the Employer Defendants did not provide Ms. Olvera-Morales and other H-2B workers with an employment contract. 108. Unlike what was required for H-2A workers, the Employer Defendants did not provide Ms. Olvera-Morales and other H-2B workers with a formal work guarantee. Nor did the Employer Defendants provide them or pay them for three-fourths of the work the Employer Defendants told them they would receive. 109. Ms. Olvera-Morales was promised work with the Zappala Entities until April 1, 2000. However, she was dismissed from her job around February 19, 2000, without completing three-fourths of the promised period. Even while she was working, the work was sporadic and she did not earn much money. She never received any pay to
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compensate her for the Employer Defendants’ failure to provide her with work during three-fourths of the contract period.
CAUSES OF ACTION COUNT I
Sex Discrimination in Violation of Title VII of the Civil Rights Act of 1964 (Against Employer Defendants)
110. Plaintiffs repeat and incorporate paragraphs 1 through 109 of this Complaint as though set forth fully herein. 111. This Count is brought on behalf of Ms. Olvera-Morales. 112. Sex was a motivating factor for the Employer Defendants’ decision to employ Ms. Olvera-Morales in a position as an H-2B rather than an H-2A worker. 113. The Employer Defendants engaged in a pattern or practice of discrimination based on sex that included failure to employ female temporary guestworkers, including Ms. Olvera-Morales, in H-2A positions. 114. The Employer Defendants’ failure to employ females as H-2A workers had a disparate impact based on sex that injured Ms. Olvera-Morales. 115. By the conduct alleged in this Complaint, the Employer Defendants unlawfully discriminated against Ms. Olvera-Morales with respect to her compensation, terms, conditions, and privileges of employment on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). 116. By the conduct alleged in this Complaint, the Employer Defendants unlawfully limited, segregated or classified their employees, including Ms. Olvera-Morales, on the basis of sex, in a way that deprived Ms. Olvera-Morales of employment opportunities and
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otherwise adversely affected her status as an employee, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(2).
COUNT II Sex Discrimination in Violation of Title VII of the Civil Rights Act of 1964
(Against Employment Agency Defendants) 117. Plaintiffs repeat and incorporate paragraphs 1 through 116 of this Complaint as though set forth fully herein. 118. This Count is brought on behalf of Ms. Olvera-Morales and the class she represents. 119. Sex was a motivating factor for the Employment Agency Defendants’ decision to recruit, hire, and place members of the plaintiff class, including Ms. Olvera-Morales, in positions as H-2B rather than H-2A workers. 120. By failing to recruit, hire, or place female temporary guestworkers, including members of the plaintiff class and Ms. Olvera-Morales, in H-2A positions, the Employment Agency Defendants engaged in a pattern or practice of discrimination based on sex. 121. The Employment Agency Defendants’ failure to recruit, hire, or place females in H-2A positions had a disparate impact based on sex that injured the plaintiff class, including Ms. Olvera-Morales. 122. By the conduct alleged in this Complaint, the Employment Agency Defendants unlawfully discriminated against plaintiffs, and classified them and referred them for employment on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(b).
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COUNT III Sex Discrimination in Violation of the New York Human Rights Law
(Against Employer Defendants) 123. Plaintiffs repeat and incorporate paragraphs 1 through 122 of this Complaint as though set forth fully herein. 124. This Count is brought on behalf of Ms. Olvera-Morales. 125. By the conduct alleged in this Complaint, the Employer Defendants unlawfully discriminated against Ms. Olvera-Morales with respect to her compensation, terms, conditions, and privileges of employment on the basis of sex, in violation of Article 15 of the New York Human Rights Law, N.Y. Exec. Law § 296(1)(a) (McKinney’s 2001).
COUNT IV Sex Discrimination in Violation of the New York Human Rights Law
(Against Employment Agency Defendants) 126. Plaintiffs repeat and incorporate paragraphs 1 through 125 of this Complaint as though set forth fully herein. 127. This Count is brought on behalf of Ms. Olvera-Morales and the class she represents. 128. By the conduct alleged in this Complaint, the Employment Agency Defendants unlawfully discriminated against the plaintiff class, including Ms. Olvera-Morales, on the basis of sex, in receiving, classifying, disposing or acting upon applications for their services and in referring the plaintiffs for employment in violation of Article 15 of the New York Human Rights Law, N.Y. Exec. Law § 296(1)(b) (McKinney’s 2001).
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COUNT V Aiding and Abetting Discriminatory Practices in Violation of the New York Human Rights Law
(Against All Defendants) 129. Plaintiffs repeat and incorporate paragraphs 1 through 128 of this Complaint as though set forth fully herein. 130. This Count is brought against the Employer Defendants on behalf of Ms. OlveraMorales and against the Employment Agency Defendants on behalf of Ms. OlveraMorales and the class she represents. 131. By the conduct alleged in this Complaint, the Employer Defendants aided, abetted, incited, compelled or coerced others to engage in practices or conduct forbidden under Article 15 of the New York Human Rights Law, thereby injuring Ms. OlveraMorales, in violation of N.Y. Exec. Law § 296(6). 132. By the conduct alleged in this Complaint, the Employment Agency Defendants aided, abetted, incited, compelled or coerced others to engage in practices or conduct forbidden under Article 15 of the New York Human Rights Law, thereby injuring the plaintiff class, including Ms. Olvera-Morales, in violation of N.Y. Exec. Law § 296(6).
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court: A. Certify Counts II, IV, and V of this Complaint as a class action against the Employment Agency Defendants; B. Find and declare that the acts and practices complained of in this Complaint violate the laws of the United States and the State of New York;
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C. Award Ms. Olvera-Morales all damages to which she is entitled as a result of defendants’ unlawful conduct, including compensatory damages, punitive damages, and interest thereon; D. Award the plaintiff class all damages to which it is entitled as a result of defendants’ unlawful conduct, including compensatory damages, punitive damages, and interest thereon; E. Issue an injunction directing the defendants to take such affirmative steps as are necessary to ensure that their unlawful employment practices, and the effects of those unlawful employment practices, are eliminated, including the following:
i. Permanently enjoining defendants in this action from further engaging in the acts complained of; ii. Directing the defendants to provide equal opportunities to women to obtain and work in H-2A visa positions; and iii. Directing the defendants to ensure that female guestworkers and applicants are informed of their right to non-discriminatory employment in H-2A positions and that defendants’ employees and agents provide female guestworkers and applicants with non-discriminatory work opportunities in H-2A positions. F. Issue notice of the Court’s ruling to all class members at the Employment Agency Defendants’ expense; G. Award plaintiffs their costs in this action, including reasonable attorneys’ fees; and
23

H. Grant plaintiffs such other and further relief as the Court may deem just and proper. Dated: December ___, 2002

FARMWORKER LEGAL SERVICES OF NEW YORK, INC.
By: _____________________________ Daniel Werner (N.D.N.Y. admission number 510197) 52 S. Manheim Blvd. New Paltz, New York 12561 (845) 255-1884 (tel) (845) 255-3629 (fax)
Of Counsel:
Martha Davis, Esq. Professor Northeastern University School of Law 400 Huntingon Avenue Boston, MA 02115 (617) 373-8921

NOW LEGAL DEFENSE AND EDUCATION FUND
By: _____________________________ Wendy R. Weiser (WW-8580, N.D.N.Y. admission application pending) Jennifer K. Brown (N.D.N.Y. admission number 510906) 395 Hudson Street, Fifth Floor New York, New York 10014 (212) 925-6635 (tel) (212) 226-1066 (fax)

24

 
 322 F.Supp.2d 211 (2004)
Marcela OLVERA-MORALES, On Behalf of Herself and All Others Similarly Situated, Plaintiff, v.
STERLING ONIONS, INC.; Zappala Farms, LLC; Zappala Holding Company, LLC; Zappala Enterprises, Inc.; James Zappala; International Labor Management Corporation, Inc; North Carolina Growers' Association, Inc.; and Del-Al Associates, Inc., Defendant.
No. 02-CV-1589.
United States District Court, N.D. New York.
June 1, 2004.
2123 *212 *213 Farm Workers Legal Services Inc., New Paltz, NY (Daniel Werner, of Counsel), Now Legal Defense and Education Fund, New York City (Wendy R. Weiser, of Counsel), for Plaintiff On behalf of herself and all others similarly situated.
Amdursky, Pelky Law Firm, Oswego, NY (Joseph E. Wallen, of Counsel), for Defendant Sterling Onions, Inc.; Zappala Farms, LLC.; Zappala Holding Co. LLC.; Zappala Enterprises, Inc.; James Zappala.
Constangy, Brooks Law Firm, Winston Salem, NC (Virginia A. Piekarski, of Counsel), for Defendant International Labor Management Corporation, Inc.
Bond, Schoeneck Law Firm, Syracuse, NY (Subhash Viswanathan, of Counsel), for Defendant North Carolina Growers' Association, Inc.
Plunkett & Gibson, Inc., San Antonio, TX (Gary L. Fuller, of Counsel), Hancock, Estabrook Law Firm, Syracuse, NY (John T. McCann, of Counsel), for Defendant Del-Al Associates, Inc.
MEMORANDUM-DECISION AND ORDER
MORDUE, District Judge.
INTRODUCTION
Plaintiff brings this employment discrimination action on behalf of herself and similarly situated women pursuant to 42 U.S.C. § 2000e, et seq. ("Title VII") and New York Human Rights Law, N.Y. Exec. Law § 296. Plaintiff, a Mexican national, applied in Mexico for temporary employment in the United States and came here to work under the federal guest worker visa program. She claims that, although she and other unskilled women workers were qualified for positions under the federal H-2A temporary agricultural program, 8 U.S.C. § 1101(a)(15)(H)(ii)(a), defendants reserved those jobs for men and deliberately steered her and other women like her into the H-2B 214 temporary non-agricultural program, 8 U.S.C. *214 § 1101(a)(15)(H)(ii)(b), which offers lower paying jobs with fewer benefits.
Presently before the Court are three motions. First, defendants International Labor Management Corporation, Inc. ("ILMC") and North Carolina Growers' Association, Inc. ("NCGA") move for dismissal of plaintiff's claims on grounds of lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and failure to state a claim, Fed.R.Civ.P. 12 (b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56(b). Second, defendant Del-Al Associates, Inc. ("Del-Al") moves for the same relief.
Finally, defendants Sterling Onion, Inc.; Zappala Farms, LLC; Zappala Holding Company, LLC; Zappala Enterprises, Inc.; and James Zappala (collectively, "Zappala defendants") move for summary judgment pursuant

to Fed.R.Civ.P. 56(a) granting their cross claim against ILMC for indemnification. The Zappala defendants also sought summary judgment dismissing the complaint; however, plaintiff's claims against the Zappala defendants have been settled and that aspect of the motion is moot.
BACKGROUND
Complaint
In her complaint, plaintiff brings class action claims against ILMC, NCGA and Del-Al, and individual claims against all defendants. In her class action claims on behalf of herself and all other similarly situated women, plaintiff, a Mexican national living in Mexico, avers that ILMC, NCGA and Del-Al recruited and hired workers from Mexico and elsewhere to work in the United States under the H-2A and H-2B visa programs for temporary guest workers. According to plaintiff, they discriminated against her and other female guest workers by steering them into positions as H-2B workers and refusing to hire them for, or assign them to, more desirable positions as H-2A workers. She asserts that these defendants were "employment agencies" within the meaning of Title VII and New York's Human Rights Law, that they acted as "employers" of plaintiff and other female H-2B workers by exercising a significant degree of control over the terms and conditions of their employment, and that they share an "identity of interest" with respect to the claims in the complaint.
In support of her individual claims against ILMC, NCGA and Del-Al, plaintiff alleges that they acted as hiring agents for the Zappala defendants and in that capacity recruited unskilled workers in Mexico, including plaintiff, to work in the United States for the Zappala defendants and other employers. Plaintiff states that ILMC, NCGA and Del-Al provided plaintiff with an H-2B visa and did not offer her an H-2A position, although she was qualified for both positions. On July 20, 1999, defendants ILMC, NCGA and Del-Al sent plaintiff to work as an H-2B worker in a packing shed in Michigan packing carrots where she continued to work until November 1999. Then ILMC and NCGA transferred her to work in a packing shed in New York packing onions for the Zappala defendants, where she worked as an H-2B worker until February 19, 2000.
In support of her individual claims against the Zappala defendants, plaintiff claims that they employed her as an H-2B worker, that they exercised a significant degree of control over the terms and conditions of her employment, and that they discriminated against her on the basis of gender by refusing to hire her for, assign her to, transfer 215 her to, or employ her in an H-2A position because she is a woman. The complaint further alleges that the *215 Zappala defendants "almost always seek male workers" to fill H-2A positions.
Count I states a Title VII claim by plaintiff on her own behalf against the Zappala defendants for sex discrimination. Count II states a Title VII claim by plaintiff on her own behalf and on behalf of the class against ILMC, NCGA and Del-Al for sex discrimination. Counts III and IV respectively state the same claims under the New York Human Rights Law. Count V states a claim against all defendants for aiding and abetting discriminatory practices in violation of New York Human Rights Law. The complaint seeks monetary and injunctive relief.
EEOC charges
On April 18, 2000, plaintiff through her lawyer filed two charges of discrimination with the Buffalo Local Office of the Equal Employment Opportunity Commission (EEOC). The first charge, Charge No. 165A00523, was filed against ILMC as an employment agency. The second charge, Charge No. 165A00524, was filed against Sterling Onions, Inc., and Zappala Farms, LLC, as employers. On March 15, 2002, plaintiff filed amended charges adding NCGA and Del-Al as respondents to Charge No. 16500523 and adding ILMC, NCGA, Zappala Holding Company, LLC, Zappala Enterprises, Inc. and James Zappala as respondents to Charge No. 16500524.[1] On September 16, 2002, the EEOC District Director issued a Determination finding reasonable cause to believe that the respondents had violated Title VII.

Plaintiff filed the complaint herein on December 20, 2002. On April 22, 2003, United States Magistrate Judge (now District Judge) Gary L. Sharpe held an initial conference, at which the parties agreed to conduct only limited discovery and to take no depositions before defendants filed initial dispositive motions.
DISCUSSION
Title VII: parties not named in plaintiff's EEOC complaint
NCGA and Del-Al argue that plaintiff's claims against them must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). On a challenge to its subject-matter jurisdiction, a court may consider evidentiary matters outside the pleadings. See Exchange Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir.1976). The party asserting jurisdiction has the burden of proving its existence, see United Food & Commercial Workers Union v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994), and, where necessary, is entitled to discovery of facts relevant to the issue, particularly "where the facts are peculiarly within the knowledge of the opposing party." Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986).
NCGA and Del-Al base their Rule 12(b)(1) motion on the ground that plaintiff did not name them in her initial EEOC charges. As a prerequisite to suing a party under Title VII, a plaintiff must file with the EEOC (or authorized state agency) a charge naming that party. See 42 U.S.C. § 2000e-5(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.1991). The Second Circuit has stated, however, that "[b]ecause these charges generally are filed by parties 216 not versed in the vagaries of Title *216 VII and its jurisdictional and pleading requirements, we have taken a `flexible stance in interpreting Title VII's procedural provisions,' so as not to frustrate Title VII's remedial goals." Id. (citation omitted). Thus, courts in this circuit have recognized an exception 0907 called the "identity of interest" exception 0907 to the general rule that a Title VII defendant must have been named in an EEOC charge. This exception permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed party and a party named in the EEOC charge. See id.
In determining the applicability of the identity of interest exception, the Johnson court considered four factors:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;
2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; [and]
4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Id. at 209-10.
It has not been determined in this circuit whether the identity of interest exception is available only to pro se plaintiffs or whether it is also available to represented plaintiffs. In Johnson, the Second Circuit noted the fact that the plaintiff was not represented by counsel when she filed the EEOC charge; the court did not, however, explicitly base its determination on this fact, nor is it listed as one of the four relevant factors. A number of district courts have limited the application of the exception to plaintiffs who were unrepresented at the EEOC stage. See, e.g., Prevost v. New York State, 2004 WL 32860, *5 n. 1 (S.D.N.Y.2004) (applying exception based on assumption that plaintiff was not represented); Gagliardi v. Universal Outdoor Holdings, Inc., 137 F.Supp.2d 374, 379 (S.D.N.Y.2001) (identity of interest exception "is limited to situations where a plaintiff was not represented by counsel at the time the EEOC charge was filed."); Harrington v. Hudson Sheraton Corp., 2 F.Supp.2d 475, 478 (S.D.N.Y.1998) (refusing to apply exception where plaintiff was represented by counsel when charge was filed,

noting that "[t]o hold otherwise would be to undermine the well-settled principle that a party must be named in an administrative charge in order for a court to have jurisdiction over the claim at issue."); Tarr v. Credit Suisse Asset Mgmt., Inc., 958 F.Supp. 785, 794 (E.D.N.Y.1997) (refusing to apply exception where plaintiff was represented by counsel when charge was filed).
Two district courts in this circuit have applied the exception where a plaintiff was represented by counsel at the EEOC stage. In Manzi v. DiCarlo, the court considered the four Johnson factors and applied the identity of interest exception to plaintiff's case despite the fact that she was represented by counsel when she filed her 217 EEOC charge.[2] 62 F.Supp.2d 780, 788 *217 (E.D.N.Y.1999). The Manzi court determined the second and third Johnson factors in favor of plaintiff, that is, it found that the interests of the named party were so similar to those of the unnamed party that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings, and that the unnamed party's absence from the EEOC proceedings did not result in actual prejudice to its interests. It further found that the unnamed defendant had received adequate notice of the EEOC charge and an opportunity to participate in conciliation proceedings. Thus, the court concluded, the unnamed party's absence from the EEOC proceedings did not undermine the two-fold purpose of the exhaustion requirement, i.e., to notify the charged party of the alleged violation and to facilitate its voluntary compliance with the law. Id. Similarly, despite the fact that the plaintiff was represented at the EEOC stage, the district court in Flower v. Mayfair Joint Venture, 2000 WL 272187, *6 (S.D.N.Y.2000), declined to dismiss a complaint against a defendant who was not named in the EEOC charge where the unnamed defendant had received notice of the EEOC charge but plaintiff did not learn of that defendant's identity until after filing the lawsuit.[3]
Here, plaintiff does not deny that she was represented by counsel when she filed her EEOC charges. Nor does her attorney claim to be unfamiliar with the complexities of Title VII.[4] Rather, plaintiff argues that despite the fact that she was represented by experienced counsel at the EEOC stage, the Court should apply the rationale of Johnson to allow her Title VII action to proceed against NCGA and Del-Al.
The Court concludes that it is not constrained to dismiss plaintiff's Title VII claims against NCGA and Del-Al solely on the basis that plaintiff was represented by experienced counsel at the EEOC stage. The Johnson decision does not explicitly require such a result. Indeed, the four Johnson factors do not even mention a plaintiff's status as represented or pro se; rather, they evince the Second Circuit's concern with balancing two goals: (1) promoting the purposes of the EEOC requirement, i.e., notifying the charged party of the alleged violation and facilitating its voluntary compliance with the law; and (2) promoting the purpose of Title VII to protect employees from discrimination. Neither of these goals is necessarily advanced by an arbitrary rule requiring dismissal of claims against an unnamed party whenever the plaintiff was represented by counsel or whenever the plaintiff was 218 represented by counsel experienced in Title VII cases. Rather, a proper balance between these *218 two sometimes-competing goals is best achieved by a case-by-case evaluation of the circumstances in light of the Johnson factors. See, e.g., Manzi, 62 F.Supp.2d at 788.
The Court now turns to consider the present record in light of the four Johnson factors. The first factor is whether the role of the unnamed party could through reasonable effort by the complainant have been ascertained at the time of the filing of the EEOC complaint. In affidavits from plaintiff and her attorney, plaintiff adduces proof that at the time the charges were filed, there was no evidence available to suggest to plaintiff or her counsel that NCGA or Del-Al were involved in plaintiff's recruitment and hiring. For example, plaintiff shows that ILMC was the sole named entity on her employment contract, on her H-2B visa and on the reverse side of her I-94 departure record. She also shows that James Zappala testified in another case that he dealt with ILMC when recruiting H-2A and H-2B workers and made no mention of NCGA or Del-Al. Further, with respect to Del-Al, plaintiff submits evidence supporting her assertion that she reasonably concluded that Jorge Del Alamo, Del-Al's representative, was an employee of ILMC. For example, her H-2B visa, which she received from Del Alamo, bears only the name of ILMC. In this regard, Del Alamo submits affidavits and exhibits to the effect that prior to entering the United States, plaintiff received a number of documents "indicating the existence of Del-Al." Del Alamo further asserts that Del-Al's corporate attributes are entirely distinct from those of ILMC.
The second Johnson factor is whether the interests of NCGA and/or Del-Al are so similar to those of ILMC that, for the purpose of obtaining voluntary conciliation and compliance, it was unnecessary to include NCGA and/or

Del-Al in the EEOC proceedings. With respect to NCGA, plaintiff submits evidence that ILMC and NCGA share the same property and resources and have significant overlap of ownership, officers, directors and staff. Plaintiff also points to evidence that ILMC and NCGA rotate workers depending on regional labor needs. In opposition to plaintiff's position, C. Stanford Eury, Jr., ILMC's President and NCGA's Executive Director, submits an affidavit explaining the differences between the structure, purposes and methods of the two companies. Del-Al asserts that it does not share similar interests with ILMC or NCGA.
With respect to the third Johnson factor 0907 whether the unnamed party's absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party 0907 plaintiff contends that the interests of ILMC and NCGA are so similar that there could be no prejudice. Eury explains, however, that NCGA acts in some respects as "joint employer" of the workers whereas ILMC does not. Thus, he says, "[i]f [he] had believed that NCGA would be implicated, [he] would have been deeply concerned because of the class allegations and possibly would have made dramatically different strategic decisions with respect to defense of the charge and conciliation." Del-Al claims that its absence from the EEOC proceedings resulted in actual prejudice because it was denied the opportunity to resolve plaintiff's complaints prior to incurring the legal fees and costs of defending against the complaint.
With respect to the fourth factor 0907 whether the unnamed party in some way represented to plaintiff that its relationship with her was to be through the named party 0907 plaintiff submits her own affidavit as well as documents 219 supporting her assumption that Del Alamo was employed by ILMC. Similarly, she shows that NCGA is *219 not referenced on the documents relating to her recruitment and hiring. Eury claims that neither he nor anyone else represented to plaintiff that any relationship with NCGA was to be through ILMC; to the contrary, he says, NCGA had no dealings with plaintiff whatsoever. Del-Al claims it made no representations to plaintiff to the effect that her relationship with Del-Al should be through ILMC.
Plaintiff's counsel states that he believes that depositions of representatives of ILMC, NCGA and Del-Al will support plaintiff's claim that the Johnson factors support adding NCGA and Del-Al as defendants despite the failure to name them in the EEOC complaint. For example, in connection with her claim that ILMC and NCGA are alter-egos[5] and have identical interests, plaintiff wants to conduct discovery on issues such as whether the two entities have followed the formalities required for corporate existence, whether they are independently adequately capitalized, whether there is intermingling of corporate funds with the principals' personal affairs, the extent of intermingling of funds, assets and property between the two corporations, the amount of business discretion displayed independently by the two companies, and the extent to which they are independent profit centers. Plaintiff's counsel also states that he needs to depose ILMC, NCGA and Del-Al concerning their policies and practices in recruiting, hiring and transferring workers as well as their communications with plaintiff and other workers at the time of recruitment, hiring and employment.
On thorough consideration of the evidence submitted by the parties relative to the Johnson factors, the Court concludes that plaintiff has demonstrated her entitlement to further discovery of facts relevant to the issues. See generally Kamen, 791 F.2d at 1011. Much of the evidence relied on by the moving defendants, in particular the affidavits of Eury, Zappala and Del Alamo, is solely accessible to defendants. See id. Although plaintiff served interrogatories on defendants, plaintiff's counsel says that defendants' responses were "inadequate" and "deficient" but that plaintiff did not have the opportunity to address the issue before defendants served their dispositive motions. Plaintiff makes a sufficient showing of the nature of the uncompleted discovery, how the facts sought are reasonably expected to create a genuine issue of material fact, what efforts have been made to obtain those facts and why those efforts were unsuccessful, so as to warrant giving plaintiff an opportunity for full discovery to enable her to oppose the motion. Accordingly, the dismissal motions by NCGA and Del-Al on this ground are denied without prejudice to renewal after full discovery.
Title VII: whether plaintiff was "qualified"
Under Title VII, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, 220 or privileges of employment, because of such individual's race, color, religion, sex, or national *220 origin[.]" 42

U.S.C. § 2000e-2(a)(1). To make out a Title VII employment discrimination claim, a plaintiff must show that: (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002).
Defendants ILMC, NCGA and Del-Al move to dismiss plaintiff's Title VII claims pursuant to Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) provides for dismissal where, accepting the material facts in the complaint as true, it appears beyond doubt that plaintiff can prove no set of facts which would entitle her to relief. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994). Defendants contend that plaintiff cannot prove that she was qualified for the position when she applied and thus cannot make out a Title VII claim. These defendants note that an employer is prohibited from hiring an unauthorized alien to work here and is required to verify that an applicant is authorized, see 8 U.S.C. § 1324a(a), (b); therefore, an employer cannot legally hire an alien applicant who is not able to present the required documentation. They rely on evidence that plaintiff applied to Del-Al for the position on July 20, 1999, but that her I-94 Departure Record was not approved and stamped by the Immigration and Naturalization Service ("INS") until July 27, 1999. Thus, they reason, when plaintiff applied for the position, she was not qualified within the meaning of Title VII because she did not yet have INS documentation authorizing her to work in the United States.
There is no direct precedent in the Second Circuit. Defendants rely on two Fourth Circuit cases in support of their argument. The first, Egbuna v. Time-Life, Libraries, Inc., 153 F.3d 184, 187 (4th Cir.1998), dismissed a complaint by an illegal alien alleging discriminatory refusal to rehire him in the United States. The court held that the plaintiff was not qualified for the position within the meaning of Title VII because he was not authorized for employment here. The second, Chaudhry v. Mobil Oil Corp., 186 F.3d 502, 504-05 (4th Cir.1999), dismissed the complaint of a foreign national employed outside the United States by a United States employer at the time of the alleged discriminatory denial of transfer to a position in United States. That court, citing Egbuna, held that, because he lacked documentation authorizing him for employment here, the plaintiff was not qualified under Title VII.
In the view of this Court, it is far from clear on the present factual record that the Second Circuit would apply the rationale of Egbuna and Chaudhry to dismiss the complaint in the instant action on the ground that plaintiff was an undocumented alien when she applied. It appears that plaintiff and defendants anticipated that, as part of the application and hiring process, plaintiff would obtain proper documentation prior to beginning work, and indeed, this is what occurred. This Court declines to rule on the present record that the timing of these events conclusively deprives plaintiff of all protection against discriminatory hiring practices. The Court merely observes that a categorical ruling that a foreign national has no protection against discriminatory hiring practices simply because she applied to work in the United States a few days before receiving INS documentation has the potential to invite abuse by employers and to undermine the goals of Title VII.
The details surrounding defendants' recruitment, application and hiring activities, however, are not adequately 221 developed on *221 this record, nor are the details relative to plaintiff's contacts with Del-Al, her classification as
an H-2B worker, the submission of her documentation request and her hiring. Many of the pertinent facts are within defendants' possession or control, and plaintiff has had only limited discovery. Until the Court has an adequate record before it, it cannot properly address the issue.
ILMC, NCGA and Del-Al also argue that the application of Title VII here would amount to unlawful extraterritorial application of that law. In support of this argument, they rely on another Fourth Circuit case, Reyes-Gaona v. NCGA, 250 F.3d 861, 866-67 (4th Cir.2001). There, the Fourth Circuit held that the Age Discrimination in Employment Act ("ADEA") does not cover foreign nationals when they apply in foreign countries for jobs in the United States. Plaintiff in that case applied to Del-Al in Mexico for employment with NCGA in the United States and was rejected due to his age. The Fourth Circuit framed the issue as whether the ADEA can properly be given "extra-territorial application" and observed that "[t]he simple submission of a resume abroad does not confer the right to file an ADEA action." Id. at 866. The court rejected the plaintiff's argument that the case did not implicate extra-territorial application of the ADEA because the job he sought was in the United States.
At this point, it is not necessary for this Court to decide whether the rationale of Reyes-Gaona would be adopted in this circuit, because the case at bar appears to be distinguishable from Reyes-Gaona on significant factual grounds. In Reyes-Gaona, the plaintiff's application for work in the United States was rejected in Mexico and

there is no indication that he applied for or obtained authorization to work in the United States or that he came to work here. As such, his contacts with the United States were minimal. In contrast, it is undisputed that plaintiff in the instant case applied to and was hired by a United States company in Mexico to work in the United States. As part of the process, she obtained INS authorization, after which she worked here as an authorized alien. Given the extensive contacts with the United States at all stages of the recruitment, hiring and employment process, it is not clear that the extension of Title VII protection to plaintiff would amount to extra-territorial application of that law. See generally Torrico v. International Business Mach. Corp., 213 F.Supp.2d 390, 399-405 (S.D.N.Y.2002). Again, the record is inadequate to enable the Court to decide the issue.
Moreover, once she began working here, plaintiff was protected from any subsequent discriminatory employment practices. It is beyond dispute that legal aliens employed in the United States are protected from discrimination in all aspects of employment. See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). There are allegations in the complaint sufficient to allege that the discriminatory practices continued after plaintiff arrived in the United States. Defendants are not entitled to dismissal on this ground. Fed.R.Civ.P. 12(b) (6). Further, there is evidence in the record to the effect that ILMC and/or the Zappala defendants could and should have obtained an H-2A visa for plaintiff after she began working in the United States.[6] This is a matter 222 on *222 which plaintiff may need discovery. The present record is insufficient to warrant summary judgment on this ground.
Plaintiff's state law claims
Defendants ILMC, NCGA, and Del-Al move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's causes of action under New York's Human Rights Law, N.Y. Exec. Law § 296, as being time-barred. They argue that, because the instant action was filed on December 23, 2002, any claims based on alleged discrimination occurring prior to December 23, 1999, are time-barred under the applicable three-year limitations period. See N.Y. Civ. Prac. L. & R. 214(2); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996).
Plaintiff asserts that she benefits from the "continuing violation" exception to the limitations period. This exception applies when a plaintiff experiences a continuous practice and policy of discrimination. See Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994). As the Second Circuit explains: "While discrete incidents of discrimination that are not related to discriminatory policies or mechanisms may not amount to a continuing violation, a continuing violation may be found where there is proof of specific ongoing discriminatory polices or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. (citation omitted). Where a plaintiff establishes a continuing violation, "all claims of discrimination under [the discriminatory] policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.1993).
Plaintiff's complaint adequately asserts a continuing violation arising from defendants' alleged course of action in placing and retaining plaintiff in an H-2B position and their alleged policy and practice of placing women in H-2B positions. It cannot be said that it appears beyond doubt that plaintiff can prove no set of facts which would entitle her to relief. See Valmonte, 18 F.3d at 998. Accordingly, Rule 12(b)(6) dismissal on the ground of the statute of limitations is denied.
The Court also declines to grant summary judgment dismissing plaintiff's Title VII claims against ILMC and NCGA as "employers" on the ground that they do not employ the requisite number of employees. Plaintiff is entitled to discovery on this issue. See Fed.R.Civ.P. 56(f).
ILMC, NCGA and Del-Al also contend that plaintiff's New York Human Rights Law claims must be dismissed because the Court lacks subject-matter jurisdiction over claims alleging discriminatory acts by a non-resident employer against a non-resident employee occurring outside the State of New York. See N.Y. Exec. Law 298-a. Given the breadth of plaintiff's allegations in the complaint and her lack of opportunity for full discovery, it would 223 be *223 premature to grant dismissal on this ground.

The Zappala defendants' cross claim for indemnification and costs
The Zappala defendants assert that neither the complaint nor plaintiff's answers to interrogatories attribute specific acts to the Zappala defendants. They urge that "the Complaint in this case attacks the recruiting process which was undertaken solely and exclusively by [ILMC] and which was a completed act by the time the guest workers were presented to either Sterling Onions, Inc. or Zappala Farms, LLC, with their visas in hand[.]" Therefore, they contend, they are entitled to summary judgment on so much of their cross claim against ILMC as seeks indemnification and the costs of their defense, including attorney's fees.[7]
It is well established that a Title VII defendant has no right of indemnification or contribution. See Northwest Airlines, Inc., v. Transport Workers Union of America, 451 U.S. 77, 94-95, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981); Anderson v. Local Union No. 3, International Brotherhood of Electrical Workers, 751 F.2d 546, 548-49 (2d Cir.1984); M.O.C.H.A. Society, Inc., v. City of Buffalo, 272 F.Supp.2d 217, 220-22 (W.D.N.Y.2003). Thus, the Zappala defendants are not entitled to summary judgment awarding indemnification regarding plaintiff's Title VII claims.
Nor are the Zappala defendants entitled to summary judgment granting indemnification from ILMC with respect to plaintiff's claims based on New York Human Rights Law. Assuming without deciding that New York law recognizes a claim for indemnification for liability under the Human Rights Law, the Court finds that the present record does not support summary judgment on this ground. There are allegations in the complaint and evidence in the record to the effect that the Zappala defendants participated in the alleged wrongful conduct. "Since the predicate of common law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine." Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 492 N.Y.S.2d 371, 375 (1st Dep't 1985) (citing Rock v. Reed-Prentice Div. of Package Machinery Co., 39 N.Y.2d 34, 39, 382 N.Y.S.2d 720, 346 N.E.2d 520 (1976)).
CONCLUSION
Accordingly, it is
ORDERED that the motion by defendants International Labor Management Corporation, Inc. and North Carolina Growers' Association, Inc. to dismiss plaintiff's claims under Fed.R.Civ.P. 12(b)(1) and(6) or for summary judgment under Fed.R.Civ.P. 56(b), is denied in accordance with this Memorandum-Decision and Order; and it is further
ORDERED that the motion by defendant Del-Al Associates, Inc. to dismiss plaintiff's claims under Fed.R.Civ.P. 12 (b)(1) and(6) or for summary judgment under Fed.R.Civ.P. 56(b), is denied in accordance with this MemorandumDecision and Order; and it is further
ORDERED that the motion by defendants Sterling Onion, Inc.; Zappala Farms, LLC; Zappala Holding Company, 224 LLC; Zappala Enterprises, Inc.; and James Zappala for summary judgment *224 pursuant to Fed.R.Civ.P. 56(a)
granting their cross-claim for indemnification against International Labor Management Corporation, Inc. is denied in accordance with this Memorandum-Decision and Order.
IT IS SO ORDERED.
[1] On June 26, 2002, plaintiff filed second amended charges adding Agway, Inc., as an employer to Charge No. 16500524. On September 30, 2002, at EEOC's request, a confirmed copy of the second amended charges was filed. This second amendment has no bearing on the issues before the Court.
[2] The Manzi court observed that "the complexities are such that an inexperienced Title VII lawyer is no more competent to deal with the vagaries of this statute's jurisdictional ... requirements than a layman." 62 F.Supp.2d at

788. However, that court made no explicit finding that plaintiff's counsel lacked experience in Title VII cases, and the issue does not appear to have been a factor in the outcome. Rather, the court focused on the purpose of the administrative exhaustion requirement.
[3] As in Manzi, the Flower court commented that a lawyer with little or no Title VII experience is "no more competent to deal with the vagaries of Title VII" than a layman. The Flower court did not find, however, that plaintiff's counsel was inexperienced; rather, it seems that the purpose of the comment was to point out the arbitrariness of a distinction between represented and unrepresented plaintiffs.
[4] It appears from the website of plaintiff's attorney at www.flsny.org that it is an organization experienced in Title VII actions. A review of the organization's current litigation listed on the website indicates that it is presently involved in at least two employment discrimination cases.
[5] The Court is not convinced that the labor relations cases cited by plaintiff concerning entities which are "alteregos" or "single employers" are applicable here. See, e.g., Newspaper Guild of New York v. NLRB, 261 F.3d 291, 298-99 (2d Cir.2001) (where two entities are not "alter-egos," one entity is not subject to the collective-bargaining obligations of the other). However, factors relevant to the "alter-ego" inquiry are similar to those bearing on the second and third Johnson factors with respect to the similarity of interests of the named and unnamed entities.
[6] According to the affidavit of C. Stanford Eury, Jr., President of ILMC, when plaintiff was transferred from Michigan to New York, ILMC "intended to have her visa changed from H-2B to H-2A so that she could lawfully perform the work at Zappala Farms[,]" which, according to Eury, only employed H-2A workers. Plaintiff's visa was never changed; Eury attributes this to the Zappala defendants' failure to provide ILMC with the necessary paperwork.
In contrast, in his affidavit, James Zappala, president of defendant Sterling Onions, Inc., and Operating Member of defendant Zappala Farms, LLC, states that "whatever claim of discrimination based on sex had or had not occurred in the recruitment process was a completed act solely and exclusively on the part of [ILMC] occurring before the H-2b Visa was granted by the U.S. Government and for Zappala Farms, LLC to have hired Marcela Olvera-Morales as an H-2a agricultural worker would have constituted unlawful employment of an alien[.]"
[7] As noted, the Zappala defendants also sought summary judgment dismissing the complaint; however, plaintiff's claims against them have been settled and that aspect of the Zappala defendants' motion is moot.
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 Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

246 F.R.D. 250 United States District Court,
M.D. North Carolina.
Marcela OLVERA–MORALES, on behalf of herself and all others similarly situated, Plaintiffs, v. INTERNATIONAL LABOR MANAGEMENT
CORPORATION, INC.; North Carolina Growers Association, Inc.; and Del–Al Associates, Inc.,
Defendants.
No. 1:05CV00559. | Nov. 7, 2007.
Attorneys and Law Firms
*252 Andrea S. Christensen, Andrew K. Solow, Andrew D. Stillufsen, Kaye Scholer, L.L.P., Jennifer K. Brown, Timothy Casey, Legal Momentum, New York, NY, Daniel Werner, Kingston, NY, Carlene Marie Mcnulty, Carol Brooke, Raleigh, NC, for Plaintiffs.
William Randolph Loftis, Jr., Robin E. Shea, Constangy Brooks & Smith, LLC, Jeffrey Dean Patton, Nathan Bowen Atkinson, Spilman Thomas & Battle PLLC, Winston–Salem, NC, John T. McCann, Hancock Estabrook Law Firm, Subhash Viswanathan, Bond Schoeneck Law Firm, Syracuse, NY, Ryan M. Debski, Spilman Thomas & Battle, PLLC, Morganton, WV, Gary L. Fuller, Plunkett Gibson Law Firm, San Antonio, TX, for Defendants.
Opinion
MEMORANDUM OPINION
N. CARLTON TILLEY, JR., District Judge.
This case arises out of a dispute concerning the recruitment of temporary foreign workers pursuant to the H–2A and H–2B visa guest worker programs. The matter is now before the Court on Plaintiff’s Motion for Class Certification [Doc. # 57] and Defendants’ Motions for Leave to File a Surreply [Doc. # # 87, 88]. For the reasons set forth below, the Motion for Class Certification is GRANTED and the Motions for Leave to File a Surreply are DENIED.
I.
The H–2A and H–2B visa guest worker programs provide

a legal means by which foreign workers can obtain temporary unskilled employment in the United States. The H–2A program authorizes the seasonal employment of foreign workers under specified *253 conditions to perform agricultural work, such as planting, weeding, harvesting, and related tasks. The H–2B program authorizes the employment of foreign workers to perform various non-agricultural work, such as seafood processing, landscape labor, housekeeping, and fishing.
In addition to the differing work assignments, the H–2A and H–2B programs also confer different benefits. The benefits associated with the H–2A visa include: (1) a guarantee that the worker will receive 75% of the work hours promised; (2) free housing; (3) travel reimbursement; (4) an employment contract; and (5) the Adverse Effect Wage Rate, which insures that the presence of foreign workers does not negatively impact wages paid to the local American workforce. Under the H–2B visa, on the other hand, workers are guaranteed only that their pay will be consistent with the prevailing wage for the assigned locality. An H–2B worker must pay for housing and transportation, and has no employment contract or work guarantee.
Defendant International Labor Management Corporation, Inc. (“ILMC”) is a North Carolina corporation that assists its clients in locating and processing foreign workers, usually from Mexico, under the H–2A and H–2B programs. ILMC’s clients consist of both agricultural and non-agricultural businesses throughout the United States. Defendant North Carolina Grower’s Association, Inc. (“NCGA”) is a non-profit North Carolina corporation that assists North Carolina farm entity members in locating and processing foreign workers solely under the H–2A program. ILMC and NCGA’s visa processing function focuses on the requirements from “the U.S. end.” ILMC and NCGA were both founded by C. Stanford Eury and are located in Vass, North Carolina.
Defendant Del–AI Associates, Inc. (“Del–AI”) is a Texas corporation located in Charlottesville, Virginia. Del–AI locates Mexican workers for its clients and processes the H–2A and H–2B visa applications from the “Mexican end.” Del–AI essentially serves as a liaison between employers or associations in the United States and recruiters in Mexico. Del–AI was founded by Jorge del Alamo and is currently run by his son, Juan del Alamo.
Del–AI has recruited and procured H–2A and H–2B workers on behalf of ILMC and NCGA. Generally, ILMC and NCGA are contacted by its clients/members with requests for a certain number of agricultural or nonagricultural workers. Employer clients/members of ILMC and NCGA would often request that specific workers from the prior season be rehired; these workers are called “preferred workers.” After collecting all relevant
1

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

information from the client/member, ILMC and NCGA would advertise the positions in the applicable area. If the positions remained unfilled, ILMC and NCGA would follow the procedures necessary to obtain foreign workers and engage Del–AI, or another third-party, to locate and recruit the needed workers. Del–AI would pass the relevant information along to recruiters in Mexico, who would attempt to locate and rehire any preferred workers and fill all remaining positions with interested Mexican citizens.
Plaintiff Marcela Olvera–Morales, a Mexican citizen who resides in Ecatepac, Mexico, was recruited to work in the United States under the H–2B visa program by agents of Del–Al on behalf of ILMC. Ms. Olvera–Morales was initially assigned to a Michigan vegetable processing company called Veg–Cut on June 20, 1999. In November 1999, she was transferred to an onion farm and onion processing facility in upstate New York, where she worked until she was dismissed in February 2000.1 Ms. Olvera–Morales was qualified to work in an H–2A position and would have preferred such an assignment because of its preferable benefits. Even though there were men with similar or lesser qualifications that were recruited by Defendants for H–2A positions, Ms. Olvera– Morales was neither offered such a position nor informed that such positions existed.

issue in this case.
Ms. Olvera–Morales initiated this action, on behalf of herself and all others similarly situated, in the United States District Court for the Northern District of New York on December 23, 2002, alleging violations of Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law. [Doc. # 1.] She seeks injunctive relief, declaratory relief, compensatory damages, punitive damages, costs, and attorneys’ fees. On June 15, 2005, following the dismissal of the New York defendants, the case was transferred to the Middle District of North Carolina. [Doc. # 11.] Ms. Olvera–Morales filed a Motion for Class Certification on February 15, 2007. [Doc. # 57.] The proposed class consists of “[a]ll female H–2B workers recruited, procured or referred for employment by the Defendants or their agents, or whose H–2B employment opportunity was procured by Defendants or their agents, from 1999 to the present.” At the close of briefing, Defendants filed Motions for Leave to File a Surreply (Doc. # # 87, 88), and Ms. Olvera–Morales has responded in opposition. These matters are now ripe for consideration.

1

The New York employers consisted of Sterling Onions,

Inc., Zappala Farms, LLC, Zappala Holding Company,

LLC, Zappala Enterprises, Inc., and James Zappala.

Each of these parties were originally named as

defendants in this action, but have since been

dismissed.

*254 ILMC has recruited 1,922 women for H–2B positions from 1999 through 2006, which represents 11.3% of the total 17,084 H–2B workers it recruited. By contrast, the 2,084 women recruited for H–2A positions by both ILMC and NCGA represents 2.2% of the total 93,872 H–2A workers they recruited over the same time period. Similarly, between 1999 and 2006, Del–AI has recruited 4,684 women for H–2B positions, which represents 13.9% of the total 33,637 H–2B workers it recruited. The 1,040 women Del–AI recruited for H–2A positions represents 2.1 % of the total 48,619 H–2A workers it recruited over that period.2

2

Defendants have submitted the affidavit of Dr. Mary

Dunn Baker, a labor economist, who concluded that the

percentage of Mexican females working in H–2A and

H–2B positions reflects the distribution of females

working like jobs in Mexico. Ms. Olvera–Morales

responded by submitting the affidavit of Dr. David W.

Griffin, a labor economist and statistician, who

concluded that the relied upon statistics provide strong

evidence consistent with the discrimination claim at

II.
Defendants have moved for leave to file a surreply to: (1) respond to Ms. Olvera–Morales’ argument that Defendants’ brief in opposition to class certification was “replete with misrepresentations of fact and misstatements of law,” and created a “legal red herring”; (2) rebut the expert report of Dr. Griffin filed in response to Defendants’ expert report; (3) rebut Ms. Olvera–Morales’ alleged contention that she was not seeking compensatory damages; and (4) rebut the assertion by attorney Andrew Stillufsen that certain workers recruited by ILMC were mistakenly listed by incorrect names in the list it provided Ms. Olvera–Morales.
Surreplies are generally disfavored, and such a filing is not justified in this case. See Hill–Rom Servs., Inc. v. Versus Tech., Inc., No. 1:03CV1227, 2005 WL 1743917, *1 (M.D.N.C. July 12, 2005). First, the perceived disparaging remarks in Ms. Olvera–Morales’ reply do not warrant leave to file a surreply. To the extent that such comments “cast aspersions on counsel’s ethics and professionalism,” they have been disregarded by the Court. Second, the statistics relied upon by Ms. Olvera– Morales, which are outlined above, are sufficient to support class certification. The expert statistical analyses submitted by the parties pose factual issues relevant to a review on the merits; they are not determinative as to the propriety of class certification. Third, Ms. Olvera–
2

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

Morales does not deny requesting compensatory damages. Rather, she clarifies the basis of the damage request and equates it to equitable relief. Finally, the alleged name discrepancy asserted by Mr. Stillufsen has no bearing on the class certification analysis that follows. As such, Defendants’ Motions for Leave to File a Surreply are denied.
III.
“The class-action device was designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982) (quoting *255 Califano v. Yamasaki, 442 U.S. 682, 700–01, 99 S.Ct. 2545, 2557– 58, 61 L.Ed.2d 176 (1979)). Federal courts may adjudicate the rights of putative class members only upon certification of that class under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), which involves a two-part inquiry. Partington v. Am. Int’l Specialty Lines Ins. Co., 443 F.3d 334, 340 (4th Cir.2006). A party seeking certification must first demonstrate that he has met the four prerequisites provided in Rule 23(a). If all four prerequisites are met, the moving party also carries the burden to show that the class action is maintainable under at least one of the three categories set forth in Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997).
[1] [2] In determining the propriety of class certification, the Court “must take a ‘close look’ at the facts relevant to the certification question and, if necessary, make specific findings on the propriety of certification.” Thorn v. Jefferson–Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir.2006). “Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case.” Id.; see also Falcon, 457 U.S. at 160, 102 S.Ct. at 2364 (“[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir.2004) (“[W]hile an evaluation of the merits ... is not part of a Rule 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits.”). The likelihood of the plaintiff’s success on the merits, however, is not relevant to the issue of whether certification is proper. Thorn, 445 F.3d at 319 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 2152–53, 40 L.Ed.2d 732 (1974) and Gariety, 368 F.3d at 366). With these principles in mind, the applicable class certification requirements are addressed, in turn, below.

A.
A party seeking class certification must first establish each of the four prerequisites set out in Rule 23(a). A member of a class may sue as a representative party on behalf of all class members if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the representative party is typical of the claims of the class; and (4) the representative party will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). These prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy.
1.
[3] Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “The reason for [the impracticability] requirement is obvious. Only when joinder is impracticable is there a need for a class action device.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996) (internal citation omitted). “Impracticable,” however, does not mean impossible. Hewlett v. Premier Salons Int’l, Inc., 185 F.R.D. 211, 215 (D.Md.1997) (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). A party seeking certification need “show [only] that it is extremely difficult or inconvenient to join all the members of a class.” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762 (3d ed.2005).
“No consistent standard has been developed for establishing numerosity in class actions.” Ballard v. Blue Shield of Southern W.Va., Inc., 543 F.2d 1075, 1080 (4th Cir.1976). Practicability of joinder depends on various factors, such as “the size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Baltimore v. Laborers’ Int’l Union of N. Am., No. 93–1810, 1995 WL 578084, at *1 (4th Cir. Oct. 2, 1995); Hewlett, 185 F.R.D. at 215. No specific class size is necessary to maintain a class action. Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir.1984). “Rather, an ‘application of the rule is to be considered in light of the particular circumstances of the case.’ ” Id. (quoting Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, Inc., 375 F.2d 648, 653 (4th Cir.1967)).
*256 [4] In this case, the size of the putative class alone supports a finding that the numerosity prerequisite has been met. “When a class is extremely large, the numbers alone may allow the court to presume impracticability of joinder.” Hewlett, 185 F.R.D. at 216 (citing Buford v. H &
3

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

R Block, Inc., 168 F.R.D. 340, 348 (S.D.Ga.1996)). As outlined above, from 1999 through 2006, Defendants collectively recruited over 6,600 women for H–2B positions, 10 of whom have been located and have submitted supporting declarations.
In addition, other factors also indicate that joinder would be impracticable in this case. First, the identification of all potential class members could pose substantial difficulty. While ILMC has provided Ms. Olvera–Morales with a list of 1,085 female H–2B workers (including addresses) it recruited from 1999 through 2002, there are thousands of yet unidentified members of this prospective class. Second, the likely geographical dispersion of the potential class members throughout both Mexico and the United States (if working pursuant to a temporary visa) would make joinder virtually impossible.
Defendants argue that the “putative class consists of exactly zero plaintiffs and does not even include [Ms. Olvera–Morales],” because they do not “recruit” anyone. To remove any ambiguity, Ms. Olvera–Morales has revised the class definition to include all female H–2B workers that were either “recruited, procured or referred for employment by the Defendants or their agents.” Under Title VII, it is “an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(b). “The term ‘employment agency’ means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.” 42 U.S.C. § 2000e(c). Regardless of the label attached to Defendants’ role in the recruitment process, it is evident that they regularly procured temporary foreign workers for employers. As previously discussed, the large number of female H–2B workers recruited or procured by Defendants makes joinder impracticable in this case.3

3

Defendants assert in a footnote that this action is

subject to dismissal based on Reyes–Gaona v. North

Carolina Growers Association, Inc., 250 F.3d 861 (4th

Cir.2001), which held that the Age Discrimination in

Employment Act does not apply to foreign nationals

when they apply in foreign countries for jobs in the

United States. This argument, however, goes to the

likelihood of success on the merits and is not relevant

to whether class certification is proper. See Thorn, 445

F.3d at 319.

In light of the foregoing, Ms. Olvera–Morales has met the Rule 23(a)(1) numerosity prerequisite.

2.
[5] Rule 23(a)(2) requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). “The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994); see also Central Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628, 636 (D.S.C.1992) (“This subsection does not require that all, or even most, issues be common, nor that common issues predominate, but only that common issues exist.”). Factual differences among the putative class members’ cases will not preclude certification if the class members share the same legal theory. Peoples v. Wendover Funding, Inc., 179 F.R.D. 492, 498 (D.Md.1998); see also Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir.1984) (“Despite the presence of individual factual questions, the commonality criterion of rule 23(a) is satisfied by the common questions of law presented.”). Because the commonality requirement may be satisfied if the putative class shares only a single common question of law or fact, “it is easily met.” Baby Neal, 43 F.3d at 56; see also Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D.Ill.1992) (“[T]he commonality *257 requirement has been characterized as a ‘low hurdle’ easily surmounted.”).4

4

It should be noted that “[i]n a class action brought

under Rule 23(b)(3), the ‘commonality’ requirement of

Rule 23(a)(2) is ‘subsumed under, or superseded by, the

more stringent Rule 23(b)(3) requirement that questions

common to the class predominate over’ other

questions.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138,

146 n. 4 (4th Cir.2001) (quoting Amchem Prods., Inc.,

521 U.S. at 609, 117 S.Ct. at 2243). Ms. Olvera–

Morales seeks to certify this class pursuant to Rules

23(b)(2) and (b)(3).

Ms. Olvera–Morales contends that the putative class shares the following two common questions of law and three common questions of fact: (1) whether Defendants’ conduct violated Title VII; (2) whether Defendants’ conduct violated the New York Human Rights Law; (3) whether Defendants informed the proposed class members about the existence of or the differences between the H–2A and H–2B visas; (4) whether Defendants offered members of the proposed class H–2A positions; and (5) whether men with qualifications similar to the proposed class members were routinely offered H– 2A positions.
[6] Defendants argue that this case relates solely to Ms.
4

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

Olvera–Morales and that the disparate jobs held by the putative class members defeats commonality. The issue in this case, however, deals with whether Defendants, acting as employment agencies, assigned women to H–2B positions in a discriminatory manner. This issue does not depend on either Ms. Olvera–Morales’ unique employment experience or the specific job assignment that the putative class members received under the H–2B visa program. Each of the common questions of law and fact listed by Ms. Olvera–Morales is independently sufficient to clear the “low hurdle” of Rule 23(a)(2). The commonality prerequisite has, therefore, been met.
3.
[7] Rule 23(a)(3) requires that the claims of the representative party be typical of the claims of the class. While the commonality requirement focuses on the claims of the class as a whole, the typicality requirement focuses on the named plaintiff’s claim. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir.1998). “ ‘The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so goes the claims of the class.’ ” Id. (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.1998)). “[T]o establish typicality, the class representatives must show: (1) that their interests are squarely aligned with the interests of the class members; and, (2) that their claims arise from the same events or course of conduct and are premised on the same legal theories as the claims of the class members.” Fisher v. Va. Elec. & Power Co., 217 F.R.D. 201, 212 (E.D.Va.2003); see also In re Am. Med. Sys., Inc., 75 F.3d at 1082 (“[A] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.”).
[8] In this case, Ms. Olvera–Morales’ claims are typical of the claims of the putative class. Both Ms. Olvera– Morales’ claims and the claims of the proposed class members arise out of the same course of conduct (i.e., Defendants’ method of recruiting foreign workers under the H–2A and H–2B visa programs). Further, Ms. Olvera–Morales’ allegations that she was not offered an H–2A position despite her qualifications and that men with similar or lesser qualifications were hired for such positions are mirrored by the submitted declarations of the 10 putative class members thus far located. Accordingly, the Rule 23(a)(3) typicality prerequisite has been met in this case.

4.
[9] Under Rule 23(a)(4), a class may be certified only if the representative party “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “This prerequisite is essential to due process, because a final judgment in a class action is binding on all class members.” In re Am. Med. Sys., Inc., 75 F.3d at 1083; see also Broussard, 155 F.3d at 338. The adequacy of representation requirement “ ‘tend[s] to merge’ with the commonality and typicality criteria,” and “serves to uncover conflicts of interest between *258 named parties and the class they seek to represent.” Amchem Prods., Inc., 521 U.S. at 625 n. 20, 117 S.Ct. at 2250 n. 20 (citing Falcon, 457 U.S. at 157–58 n. 13, 102 S.Ct. at 2370–71 n. 13). It “also factors in competency and conflicts of class counsel.” Id. To establish adequacy, “the representative must have common interests with unnamed members of the class” and “it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d at 1083 (internal citation omitted). The adequacy of representation requirement “overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id.
[10] As discussed above, the commonality and typicality prerequisites have been met. Defendants argue, however, that Ms. Olvera–Morales is an inadequate representative because, as someone who has expressed no interest in returning to work in the United States, she has an inherent conflict of interest with members of the putative class who are either currently working or may desire to continue working under the guest worker visa programs. Regardless of this distinction, the interests of the putative class are sufficiently aligned to insure confidence in Ms. Olvera–Morales’ ability to adequately represent its interests. The damages sought in this action apply equally to each putative class member and there is no reason to doubt Ms. Olvera–Morales’ desire to protect the class from future harm through equitable relief despite her future employment plans. Cf. Dukes v. Wal–Mart, Inc., 474 F.3d 1214, 1235 (9th Cir.2007) (“It is reasonable that plaintiffs who feel that their rights have been violated by an employer’s behavior would want that behavior, and the injustice it perpetuates, to end. In cases involving discrimination, it is especially likely that even those plaintiffs safe from immediate harm will be concerned about protecting those class members that are suffering as they once did.”). Moreover, Defendants have not challenged the capabilities or qualification of opposing counsel. As such, the Rule 23(a)(4) adequacy of representation prerequisite has been met.

5

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

B.
In addition to demonstrating each of the four prerequisites of Rule 23(a), a party seeking class certification must show that the class can be maintained under one of the three categories in Rule 23(b). Ms. Olvera–Morales seeks class certification pursuant to Rules 23(b)(2) and (b)(3). Under Rule 23(b)(2), a class action is maintainable if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). This rule applies when the putative class seeks injunctive or declaratory relief, and “does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages.” Id. advisory committee’s note; see also Zimmerman v. Bell, 800 F.2d 386, 389–90 (4th Cir.1986) (noting “that subsection (b)(2) [is] limited to claims where the relief sought [is] primarily injunctive or declaratory”).
[11] Certification under Rule 23(b)(2) remains available, however, when a claim for injunctive or declaratory relief also includes a claim for monetary damages if the requested damages are “incidental” to the requested injunctive or declaratory relief. Lemon v. Int’l Union of Operating Eng’rs, 216 F.3d 577, 581 (7th Cir.2000) (following Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998)); see also Fisher, 217 F.R.D. at 213. Incidental damages are those “ ‘that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.’ ” Lemon, 216 F.3d at 581 (quoting Allison, 151 F.3d at 415); Fisher, 217 F.R.D. at 213. Such damages are distinguishable in that they “do not depend ‘in any significant way on the intangible, subjective differences of each class member’s circumstances’ and do not ‘require additional hearings to resolve the disparate merits of each individual’s case.’ ” Id.
[12] Rule 23(b)(2) is “particularly suited for class actions alleging [ ] discrimination and seeking a court order putting an end to *259 that discrimination.” Thorn, 445 F.3d at 331; see also Amchem Prods., Inc., 521 U.S. at 614, 117 S.Ct. at 2245 (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples [where class certification is proper under Rule 23(b)(2) ].”). “There is no legal presumption, however, in favor of certifying cases alleging discrimination.” Thorn, 445 F.3d at 331.
In this case Ms. Olvera–Morales requests: (1) a declaration that Defendants’ acts and practices at issue violate the laws of the United States and the State of New York; (2) compensatory damages for back pay based on the difference between the H–2B and H–2A pay levels and in-kind compensation; (3) punitive damages based on Defendants’ conduct to the putative class as a whole; (4)

costs and attorneys’ fees; and (5) injunctive relief enjoining Defendants from further engaging in the acts and practices at issue, directing Defendants to provide equal opportunities to women to work in H–2A positions, and directing Defendants to inform female applicants and workers of their right to non-discriminatory employment in H–2A positions.

Defendants argue that Ms. Olvera–Morales’ request for compensatory and punitive damages precludes certification under Rule 23(b)(2) as a matter of law. However, there is no per se rule prohibiting class certification under Rule 23(b)(2) when monetary damages are sought. Thorn, 445 F.3d at 331 (The Fourth Circuit has never held “that monetary relief is fundamentally incompatible with Rule 23(b)(2)”); see also Miller v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 199 (D.Md.2001) (discussing relevant cases). Rather, the Fourth Circuit has held “only that relief that is neither injunctive nor declaratory may not predominate over the injunctive and declaratory relief in a proper Rule 23(b)(2) action.” Id. (emphasis in original).
[13] The monetary damages requested by Ms. Olvera– Morales do not predominate over the injunctive and declaratory relief sought because they flow directly from the discriminatory recruitment claims that form the basis of the equitable relief. Ms. Olvera–Morales requests compensatory damages in the form of back pay, which “do not predominate over injunctive remedies available because the calculation of back pay generally involves [relatively un]complicated factual determinations and few [ ] individualized issues.” Thorn, 445 F.3d at 331–32 (quoting Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 449 (6th Cir.2002)). Further, because Ms. Olvera–Morales requests punitive damages based on Defendants’ conduct to the putative class as a whole, the Court will not be required to delve into “the intangible, subjective differences of each class member’s circumstances” and additional hearings will not be required “to resolve the disparate merits of each individual’s case.” See Allison, 151 F.3d at 415.5 The requested monetary damages, therefore, do not predominate over the requested injunctive and declaratory relief, and certification is proper under Rule 23(b)(2).

5

Punitive damages are available for a Title VII violation

when “the complaining party demonstrates that the

respondent engaged in a discriminatory practice or

discriminatory practices with malice or with reckless

indifference to the federally protected rights of an

aggrieved individual.” 42 U.S.C. § 1981a(b)(1)

(emphasis added). “The terms ‘malice’ and ‘reckless

indifference’ refer to ‘the employer’s knowledge that it

may be acting in violation of federal law.’ ” Golson v.

Green Tree Fin. Servicing Corp., 26 Fed.Appx. 209,

213 (4th Cir.2002) (quoting Kolstad v. Am. Dental

Ass’n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d

6

Olvera-Morales v. Intern. Labor Management Corp., 246 F.R.D. 250 (2007)

494 (1999)). “Under § 1981a, ‘an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law.’ ” Id. (quoting Kolstad, 527 U.S. at 536, 119 S.Ct. 2118).
Having determined that class certification is proper under Rule 23(b)(2), it is unnecessary to address potential certification under Rule 23(b)(3). “If a class action is maintainable under subsection (b)(2) and also under (b)(3), a court should certify the action under (b)(2), ‘so that judgment will have res judicata effect as to all the class.’ ” Fisher, 217 F.R.D. at 212 (quoting In re A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir.1989)). Unlike an action certified under subsection (b)(3), no member has the right to opt out of an action certified under Rule 23(b)(2). Id.

IV.
For the reasons discussed above, Ms. Olvera–Morales’ Motion for Class Certification *260 (Doc. # 57) is GRANTED and Defendants’ Motions for Leave to File a Surreply (Doc. # # 87, 88) are DENIED.
Parallel Citations
102 Fair Empl.Prac.Cas. (BNA) 410, 90 Empl. Prac. Dec. P 43,019
	  

7

 
 Olvera-Morales v. International Labor Management Corp., Inc., Not Reported in...

2006 WL 931752 Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Marcela OLVERA-MORALES, On Behalf of Herself and All Others Similarly Situated, Plaintiff,
v. INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.; North Carolina Growers’ Association, Inc.; and Del-Al Associates, Inc.,
Defendant.
No. 5:02-CV-1589. | April 10, 2006.
Attorneys and Law Firms
Kaye Scholer LLP, Andrea Christensen, Esq., of Counsel, Andrew K. Solow, Esq., of Counsel, Andrew D. Stillufsen, Esq., of Counsel, and Legal Momentum, Jennifer Kay Brown, Esq., of Counsel, Timothy Casey, Esq., of Counsel New York, NY, and Workers’ Rights Law Center of New York, Inc., Daniel Werner, Esq., of Counsel, Kingston, NY, for Plaintiff.
Constangy, Brooks & Smith, LLC, Robin E. Shea, Esq., of Counsel, Winston Salem, NC, and Bond, Schoeneck & King, PLLC, Subhash Viswanathan, Esq., of Counsel Syracuse, NY, for Defendant North Carolina Growers’ Association, Inc. and Defendant International Labor Management Corporation, Inc.
Plunkett & Gibson, Inc., Gary L. Fuller, Esq., of Counsel, San Antonio, TX, and Hancock, Estabrook Law Firm, John T. McCann, Esq., of Counsel, Syracuse, NY, for Defendant Del-Al Associates, Inc.
Opinion
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Chief Judge.
BACKGROUND
*1 By Memorandum-Decision and Order dated June 16, 2005 (Dkt. No. 92), this Court granted the motion of defendants International Labor Management Corporation, Inc. (“ILMC”) and North Carolina Growers’ Association, Inc. (“NCGA”) (Dkt. No. 70), joined by defendant Del-Al

Associates, Inc. (“Del-Al”) (Dkt. No. 71), to transfer this action to the Middle District of North Carolina pursuant to 28 U.S.C. § 1404(a). Thereafter, plaintiff moved (Dkt. No. 95) for reconsideration of the June 16, 2005 Memorandum-Decision and Order, arguing for the first time that the Court must specifically address the issue of North Carolina’s right to assert personal jurisdiction over Del-Al. In its Memorandum-Decision and Order dated November 17, 2005 (Dkt. No. 104), this Court afforded the parties an opportunity to conduct jurisdictional discovery regarding Del-Al and, thereafter, to submit further papers on the motion for reconsideration.
RECONSIDERATION
A court may grant reconsideration of a judgment or interlocutory order to afford such relief as justice requires, based on an intervening change in controlling law, the availability of previously unavailable evidence, or the need to correct a clear error of law or prevent manifest injustice. See Doe v. N.Y. City Dep’t of Soc. Services, 709 F.2d 782, 789 (2d Cir.1983); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981). Local Rule 7.1(g) implements this power.
Here, after jurisdictional discovery pursuant to the November 17, 2005 Memorandum-Decision and Order, the parties have submitted substantial material evidence on the issue of whether plaintiff could have obtained personal jurisdiction over Del-Al in North Carolina when the action commenced. Based on this evidence and under all of the circumstances, the Court finds that justice requires it to reconsider the question of transfer to the Middle District of North Carolina, limited to the issue of whether the action could have been brought there initially. As will be discussed below, upon reconsideration in light of the newly submitted evidence, the Court finds that personal jurisdiction could have been obtained over Del-Al in North Carolina in the first instance. Thus, the action could have been brought in North Carolina initially, and transfer is in all respects proper.
PERSONAL JURISDICTION OVER DEL-AL
Del-Al is not a resident of North Carolina; thus, the North Carolina long-arm statute must be invoked to assert personal jurisdiction over Del-Al. The relevant statute, according to both plaintiff and defendants, provides that a court may invoke jurisdiction over a defendant who “is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.”
1

Olvera-Morales v. International Labor Management Corp., Inc., Not Reported in...

N.C. Gen.Stat. § 1-75.4(1)(d). The North Carolina Supreme Court has held that this statute extends jurisdiction to the limit permissible under due process. Dillon v. Numismatic Funding Corp., 231 S.E.2d 629, 630 (N.C.1977) (“By the enactment of G.S. § 1-75.4(1)(d), it is apparent that the General Assembly intended to make available to the North Carolina courts the full jurisdictional powers permissible under federal due process.”). Neither party disputes the applicability of this statute to Del-Al. This statute effectively collapses the personal jurisdiction inquiry to the question of whether an assertion of personal jurisdiction over Del-Al in North Carolina would comport with due process.
*2 Due process is satisfied, and an assertion of personal jurisdiction via a long-arm statute is valid, if the defendant has sufficient minimum contacts with the forum state such that allowing the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). There are two types of personal jurisdiction, specific and general, each with a minimum contacts standard. The stricter test, requiring systematic and continuous contacts, applies to exercises of general jurisdiction, which is invoked when the claim is unrelated to the defendant’s contacts with the forum state. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-16 & n. 9 (1984). Specific jurisdiction is properly exercised where the defendant “purposefully directed” activities at forum residents and the cause of action results from alleged injuries that relate to or arise out of the defendant’s contacts with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted).
1. General jurisdiction Courts consider the totality of the circumstances in analyzing whether a defendant has sufficient continuous and systematic contacts with a forum state: no individual factor is determinative. Stetser v. TAP Pharm. Products, Inc., 591 S.E.2d 572, 576 (N.C .App.2004) (citations omitted). The time frame for assessing a defendant’s contacts is a reasonable period prior to the filing of the complaint. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.1996) (stating the determination of a reasonable period “should be left to the court’s discretion”). The inquiry is inherently fact specific and must be tailored to the facts of each case. Id. at 570.
Two leading Supreme Court cases provide guidance as to what constitutes systematic and continuous business operations. In Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), the Court found systematic and continuous contacts because the general manager and president of the company moved his office to the forum state and maintained records, held directors’ meetings,

and supervised the company’s activities in the forum state. Perkins, 342 U.S. at 448. In contrast, in Helicopteros, the Court held that the defendant’s general business contacts did not meet the standard although the defendant had purchased equipment in the forum state, sent personnel to the forum state for training, and sent a corporate officer to the forum for contract negotiations. 466 U.S. at 416. The defendant had never performed operations or solicited business within the state or sold any product that reached the forum state. Id. at 411.
A North Carolina court found sufficient systematic and continuous contacts where the defendant maintained a business relationship, including placing phone calls, with a North Carolina entity for several years, sent direct mail to at least fifty North Carolina residents, and advertised in journals circulated in North Carolina. Replacements, Ltd. v. MidweSterling, 515 S.E.2d 46, 51 (N.C.App .1999). In another case, sufficient contacts were found where the defendant actively solicited North Carolina residents over twenty-one months, made sales to North Carolina citizens with a combined value of over $50,000, and visited North Carolina once. Dillon, 231 S.E.2d at 632. Conversely, examples of cases in which contacts were found to be insufficient include Ash v. Burnham Corp., 343 S.E.2d 2, 3-4 (N.C.App.1986) (holding manufacturer’s use of independent contractors to solicit business, advertisement in magazines that reached North Carolina, and sales to North Carolina customers averaging 0.5% of total sales insufficient to constitute “continuous and systematic contacts”) and Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 450-51 (4th Cir.2000) (holding contacts were not sufficient because defendant did not conduct or solicit business, visit, or treat patients in the forum state).
*3 The affidavit of Jorge Del Alamo states that Del-Al, a Texas corporation with its principal place of business in Virginia, provides a service to customers consisting of “securing foreign labor.” These foreign laborers, most of whom are from Mexico, work under temporary visas in the United States. Juan Del Alamo testified during deposition that Del-Al recruited approximately 12,000 workers per year for defendants NCGA and ILMC in the years 1998-2000. All workers recruited for NCGA were placed in North Carolina because, according to the affidavit of C. Stanford Eury, Executive Director of NCGA, NCGA consists only of member growers from North Carolina. This constituted the bulk of Del-Al’s business and generated revenues in excess of $2,000,000, a considerably greater amount than the $50,000 that was found to be an important factor in finding sufficient continuous and systematic contacts in Dillon.
According to Juan Del Alamo, after 2000, Del-Al’s orders from North Carolina declined considerably as a result of the severing of relations with both ILMC and NCGA; however, Del-Al continued to perform services for eight
2

Olvera-Morales v. International Labor Management Corp., Inc., Not Reported in...

other North Carolina entities in 2001 and nine in 2002, albeit on a much reduced scale of approximately 200 workers per year. The facts that Del-Al recruited workers on behalf of North Carolina residents during the years 1998-2002, and that a portion of those workers were placed in North Carolina, establish a business relationship between Del-Al and North Carolina entities that persisted over a significant time period. Juan Del Alamo also testified that, unlike the defendant in Helicopteros, Del-Al was engaged in actively soliciting new customers in North Carolina through the use of mass mailings, as were the defendants in Dillon and Replacements, up to the time of suit in 2002. He further testified that Del-Al communicated with customers in North Carolina by telephone, email, and occasional visits. The above undisputed facts, taken together, demonstrate that Del-Al maintained sufficient systematic and continuous contacts with the state of North Carolina despite the fact that it neither owns property nor maintains an office in North Carolina.
2. Specific jurisdiction To satisfy the specific jurisdiction minimum contacts test, the defendant must purposefully direct activities at the forum’s residents, and the litigation must “relate to or arise from” those activities. Burger King Corp., 471 U.S. at 473 (citations omitted). The “purposeful[ ] avail[ment] of the privilege of conducting activities” in the forum state “invok[es] the benefits and protections” of the forum state’s laws, putting a defendant on notice that “he can reasonably anticipate being haled into court there.” Charter Med., Ltd. v. Zigmed, Inc., 617 S.E.2d 352, 355 (N.C.App.2005) (citation omitted); see also World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 316 (1980). North Carolina courts have looked to several factors in making determinations regarding minimum contacts for specific jurisdiction, including: (1) quantity of the contacts between the defendant and the forum state; (2) quality and nature of the contacts; (3) the source and connection of the cause of action to the contacts; (4) the interest of the forum state; and (5) convenience of the parties. Charter Med., Ltd., 617 S.E.2d at 355.
*4 Plaintiff’s cited authority, Bosdorf v. The Vessel “Miramar”, 1999 WL 1939261 (M.D.N.C. Feb. 2, 1999) (finding no specific jurisdiction over Florida defendants because the injury arose not from their contract to use a North Carolina boat but rather from their negligent operation of the boat off the coast of Mexico), can be distinguished because, unlike the defendant in Bosdorf, Del-Al directed multiple activities at North Carolina and the plaintiff’s alleged injuries related to those activities. Del-Al directed mailings, phone calls, emails, and visits at North Carolina residents, most notably NCGA and ILMC, who then placed orders with Del-Al. According to plaintiff, Del-Al recruited plaintiff “in concert with and

on behalf of ILMC and NCGA,” and did so in a discriminatory manner. Therefore, according to plaintiff, Del-Al’s recruitment of plaintiff, which caused plaintiff’s injury, arose from its contacts with North Carolina in connection with its business with NCGA and ILMC. It follows that this litigation arises out of Del-Al’s contacts with North Carolina.
Looking to the factors to be considered, Del-Al has relationships with several North Carolina entities for whom it fills orders. The relationships with NCGA and ILMC resulted in orders for thousands of workers. As demonstrated above, the cause of action is connected to DelAl’s contacts with North Carolina. The final two factors, the interest of the forum state and the convenience of the parties, have previously been considered by this Court as discussed below, and weigh in favor of finding sufficient minimum contacts to assert personal jurisdiction over Del-Al in North Carolina. Del-Al purposefully directed activities at North Carolina, and this litigation relates to Del-Al’s activities and contacts in North Carolina; therefore, asserting specific personal jurisdiction over Del-Al in North Carolina does not violate due process unless the assertion is unreasonable.
3. Reasonableness of asserting either general or specific jurisdiction Having found sufficient minimal contacts, the Court turns to consider whether the assertion of personal jurisdiction is reasonable. International Shoe Co., 326 U.S. at 320. Factors to consider include: (1) the burden on the defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) any shared interest in furthering substantive social policies. Burger King Corp., 471 U.S. at 477.
Most of the relevant factors have already been found to favor an assertion of personal jurisdiction by virtue of this Court’s Memorandum-Decision and Order dated June 15, 2005 (Dkt. No. 92). The Court found: North Carolina is a more convenient forum for defendants; plaintiff can obtain convenient and effective relief in North Carolina; and North Carolina is a more convenient forum on balance. Additionally, North Carolina has an interest in adjudicating a dispute involving its residents and the most convenient forum is likely the most efficient forum in the interstate system.
*5 The Fourth Circuit has noted that “sufficiently substantial” contacts with the forum state will be enough to support an exercise of personal jurisdiction even if the plaintiff has had no contacts with the forum state and the cause of action did not arise there. Lee v. Walworth Valve
3

Olvera-Morales v. International Labor Management Corp., Inc., Not Reported in...

Co., 482 F.2d 297, 300 (1973). This case presents an interesting twist because the plaintiff is not a resident of North Carolina and in fact it is the defendants who are arguing for a finding of personal jurisdiction. Because the Court has found that the cause of action does arise out of DelAl’s contacts with North Carolina and because Del-Al’s systematic and continuous contacts with North Carolina are “sufficiently substantial,” finding personal jurisdiction over Del-Al in North Carolina is not unreasonable even though the plaintiff has had little or no connection with North Carolina.
CONCLUSION
Del-Al has sufficient systematic and continuous contacts with North Carolina to satisfy the minimum contacts standard for an assertion of general personal jurisdiction over Del-Al. Additionally, because the cause of action arises out of or relates to Del-Al’s contacts with North Carolina, the minimum contacts standard for specific jurisdiction is also satisfied. The assertion of personal jurisdiction over Del-Al in North Carolina comports with due process because it does not fail the reasonableness test and Del-Al has sufficient minimum contacts in North Carolina; therefore, the assertion of personal jurisdiction over Del-Al in North Carolina does not offend traditional notions of fair play or substantial justice.
Inasmuch as this action could have been brought in the Middle District of North Carolina when it was initially

filed, the transfer of the case to that district is proper. Accordingly, upon reconsideration in light of the entire record, including the newly submitted evidence, the Court concludes that the motions by defendants International Labor Management Corporation, Inc. and North Carolina Growers’ Association, Inc. (Dkt. No. 70), and by defendant Del-Al Associates, Inc. (Dkt. No. 71), to transfer this action to the Middle District of North Carolina pursuant to 28 U.S.C. § 1404(a) were correctly decided.
It is therefore
ORDERED that plaintiff’s motion for reconsideration (Dkt. No. 95) of the Memorandum-Decision and Order dated June 16, 2005 (Dkt. No. 92) is granted; and it is further
ORDERED that upon reconsideration in light of the entire record, including the newly submitted evidence, the Court reaffirms the Memorandum-Decision and Order dated June 16, 2005 (Dkt. No. 92), transferring this action to the Middle District of North Carolina pursuant to 28 U.S.C. § 1404(a); and it is further
ORDERED that plaintiff’s request that the issue be certified for appeal is denied.
IT IS SO ORDERED.
	  

4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCELA OLVERA-MORALES,

)

on behalf of herself and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

INTERNATIONAL LABOR MANAGEMENT )

CORPORATION, INC.; NORTH CAROLINA )

GROWERS ASSOCIATION, INC.; and

)

DEL-AL ASSOCIATES, INC.,

)

)

Defendants.

)

_________________________________________ )

1:05CV00559

MEMORANDUM OPINION

TILLEY, District Judge This case arises out of a dispute concerning the recruitment of temporary
foreign workers pursuant to the H-2A and H-2B visa guest worker programs. The matter is now before the Court on Defendants’ Motions for Summary Judgment. For the reasons set forth below, International Labor Management Corporation, Inc. (“ILMC”) and North Carolina Grower’s Association, Inc.’s (“NCGA”) Motion for Summary Judgment [Doc. # 101] on the Title VII claims is GRANTED as to ILMC, and those claims are DISMISSED. ILMC and NCGA’s Motion for Summary Judgment [Doc. # 101] on the Title VII claims is DENIED as to NCGA. Del-Al Associates, Inc.’s (“Del-Al”) Motion for Summary Judgment [Doc. # 98] as to the Title VII claims is GRANTED, and those claims are DISMISSED. The Court declines

to exercise supplemental jurisdiction over the claims pursuant to the New York Human Rights Law, and those claims are DISMISSED WITHOUT PREJUDICE.
I. The H-2A and H-2B visa guest worker programs provide a legal means by which foreign workers can obtain temporary unskilled employment in the United States. The H-2A program authorizes the seasonal employment of foreign workers under specified conditions to perform agricultural work, such as planting, weeding, harvesting, and related tasks. The H-2B program authorizes the employment of foreign workers to perform various non-agricultural work, such as seafood processing, landscape labor, housekeeping, and fishing. In addition to the differing work assignments, the H-2A and H-2B programs also confer different benefits. The benefits associated with the H-2A visa include: (1) a guarantee that the worker will receive 75% of the work hours promised; (2) free housing; (3) travel reimbursement; (4) an employment contract; and (5) the Adverse Effect Wage Rate, which insures that the presence of foreign workers does not negatively impact wages paid to the local American workforce. Under the H-2B visa, on the other hand, workers are guaranteed only that their pay will be consistent with the prevailing wage for the assigned locality. An H-2B worker must pay for housing and transportation and has no employment contract or work guarantee. Defendant ILMC is a North Carolina corporation that assists its clients in
2

locating and processing foreign workers, usually from Mexico, under the H-2A and H-2B programs. ILMC’s clients consist of both agricultural and non-agricultural businesses throughout the United States. Defendant NCGA is a non-profit North Carolina corporation that assists North Carolina farm entity members in locating and processing foreign workers solely under the H-2A program. ILMC and NCGA’s visa processing function focuses on the requirements from “the U.S. end.” ILMC and NCGA were both founded by C. Stanford Eury and are located in Vass, North Carolina.
Defendant Del-Al is a Texas corporation located in Charlottesville, Virginia. Del-Al locates Mexican workers for its clients and processes the H-2A and H-2B visa applications from the “Mexican end.” Del-Al essentially serves as a liaison between employers or associations in the United States and recruiters in Mexico. Del-Al was founded by Jorge Del Alamo and is currently run by his son, Juan Del Alamo.
The employee recruitment process generally proceeds as follows. ILMC and NCGA are contacted by its clients/members with requests for a certain number of agricultural or non-agricultural workers. After collecting all relevant information from the client/member, ILMC and NCGA advertise the positions in the applicable area within the United States. If the positions remained unfilled, ILMC and NCGA follow the procedures necessary to obtain foreign workers.
As part of this process, employer clients/members of ILMC and NCGA would
3

often request that specific workers from the prior season be rehired; these workers are called “preferred workers.” ILMC and NCGA would engage Del-Al, or another third-party, to locate and recruit the needed workers. Del-Al would pass the relevant information along to recruiters in Mexico, who would attempt to locate and rehire any preferred workers and then fill any remaining positions with interested Mexican citizens.
Plaintiff Marcela Olvera-Morales, a Mexican citizen who resides in Ecatepac, Mexico, was hired to work in the United States under the H-2B visa program by agents of Del-Al on behalf of ILMC. Ms. Olvera-Morales was initially assigned to a Michigan vegetable processing company called Veg-Cut in July 1999. In November 1999, she was transferred to an onion farm and onion processing facility in upstate New York, where she worked until she was dismissed in February 2000.1
Ms. Olvera-Morales asserts that she was qualified to work in an H-2A position and would have preferred such an assignment because of its preferable benefits. Ms. Olvera-Morales further asserts that even though there were men with similar or lesser qualifications that were recruited by Defendants for H-2A positions, Ms. Olvera-Morales was neither offered such a position nor informed
1 The New York employers consisted of Sterling Onions, Inc., Zappala Farms, LLC, Zappala Holding Company, LLC, Zappala Enterprises, Inc., and James Zappala. Each of these parties were originally named as defendants in this action, but have since been dismissed.
4

that such positions existed. Ms. Olvera-Morales filed the instant lawsuit on December 22, 2002 in the
Northern District of New York asserting violations of Title VII and the New York Human Rights Law. The case was transferred to this Court on June 15, 2005. On November 7, 2007, the Court entered an order granting Ms. Olvera-Morales’ motion for class certification. [Doc. #123]. The parties have completed discovery, and the Defendants have each filed motions for summary judgment.
II. Summary judgment is proper only when, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir. 2001). An issue is genuine if a reasonable jury, based on the evidence, could find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Cox, 249 F.3d at 299. There is no genuine issue of material fact if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex, 477 U.S. at 322-23. In essence, summary judgment requires a determination of the sufficiency of the evidence, not a weighing of the evidence, and the analysis concerns “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one
5

party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. Ms. Olvera-Morales asserts that the Defendants’ practice of channeling
women into H-2B positions violates Title VII of the Civil Rights Act. In support of their motions for Summary Judgment, Defendants have asserted several arguments seeking dismissal of the Title VII claims. Each of these arguments will be addressed in turn.
A. It is well-established that in order to sustain a civil action pursuant to Title VII, a plaintiff must exhaust her administrative remedies. Specifically, Title VII requires that a claimant file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a “deferral state,” within 300 days from the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e). New York, the state in which Ms. Olvera-Morales was employed at the time she filed her EEOC charge, is a deferral state. Therefore, it was necessary for Ms. OlveraMorales to file her EEOC charge within 300 days of the alleged discriminatory acts. On April 26, 2000, Ms. Olvera-Morales filed two charges of discrimination with the EEOC naming ILMC as the defendant. On March 15, 2002, Ms. OlveraMorales amended her EEOC charge to add NCGA and Del-Al as additional defendants. NCGA and Del-Al assert that Ms. Olvera-Morales did not file a timely EEOC charge against them and thus that she has failed to exhaust her
6

administrative remedies with respect to them. Generally, failure to name a party in the EEOC charge means the plaintiff did
not exhaust administrative remedies against those parties, and a district court must dismiss the case. See Alvarado v. Board of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 458-59 (4th Cir.1988); see also 42 U.S.C. § 2000e-5(f)(1) (specifying that an individual may bring an action against a party “named in the charge”).
The Fourth Circuit has noted that “[c]ourts have developed exceptions to this rule, though, where it is clear that the defendant through some relationship with the named respondent had notice of the charges and participated in the conciliation process.” EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1186 n.5 (4th Cir. 1981); see also Alvarado, 848 F.2d at 461 (explaining that the “Fourth Circuit has not had occasion to decide whether to adopt the substantial identity exception” but noting that the American National Bank case quoted such language “with approval . . . in dictum”).
Several district courts in the Fourth Circuit have applied the “identity of interest” or “substantial identity” test set forth by the Third Circuit in Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), to determine whether a defendant had notice of the EEOC charges and participated in the conciliation process. See, e.g., Mayes v. Moore, 419 F. Supp.2d 775, 782-83 (M.D.N.C. 2006); Jamieson v. Valle Bank, No. 7:05CV00165, 2005 WL 2233545 (W.D. Va. Sept. 13, 2005); Tietgen v. Brown's Westminster Motors, Inc., 921 F.Supp. 1495, 1498-99 (E.D.
7

Va. 1996). The factors identified by the Glus court are as follows:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;
2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;
4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977). In addition, since
Glus was decided, the Third Circuit has combined these four factors into a two-
factor inquiry that considers whether the unnamed party has received notice and
whether there is a shared commonality of interest between the named and
unnamed parties. Schafer v. Bd. of Pub. Educ., 903 F.2d 243 (3d Cir. 1990);
Goodman v. Lukens Steel co., 777 F.2d 113 (3d Cir. 1984).
1.
In this case, Ms. Olvera-Morales’ H-2B visa documentation indicates that
ILMC, which was the entity named in the initial EEOC complaint, was her
employer. Similarly, the reverse side of her I-94 departure record contains a
reference only to ILMC. Although it is not clear from the evidence who gave these
documents to Ms. Olvera-Morales, it appears that she received them from
8

individuals contracted by Del-Al to recruit Mexican workers. [Olvera-Morales Dep.
at 96]. Ms. Olvera-Morales also testified that she was not given any documents
that contained a reference to Del-Al or Del-Al Associates in conjunction with
receiving any of the visa documents that were contained in her passport. [Olvera-
Morales Dep. at 63-65]. Similarly, Ms. Olvera-Morales testified that she did not
hear Mr. Del Alamo’s name until she came to Michigan. [Olvera-Morales Dep. at
61-62].
Ms. Olvera-Morales has testified that it was her understanding Mr. Del Alamo was a representative of the “North Carolina Association.”2 [Olvera-Morales
Dep. at 43-44]. This understanding was based on three things. First, Ms. Olvera-
Morales testified that Mr. Del Alamo’s name was mentioned in conversations with
her co-workers in Michigan concerning who the workers would contact if they had
any problems; it was also discussed that Mr. Del Alamo was part of the “North
Carolina Association.” [Olvera-Morales Dep. at 46, 95].
Second, some of Ms. Olvera-Morales’ co-workers gave her a card bearing
both Mr. Del Alamo’s name and “above it had the name of the association.”
2 There are repeated references throughout Ms. Olvera-Morales’ deposition to the “North Carolina Association.” When asked whether she was confusing the North Carolina Association with the North Carolina Grower’s Association, Ms. Olvera-Morales testified “the only name I know is North Carolina Association and Jorge Del Alamo, alleged director.” [Olvera-Morales Dep. at 66]. When asked if there was a connection between Del-Al and ILMC, Ms. Olvera-Morales responded: “The only thing I know that my coworkers have always referred to most of the people I’ve talked to that the association. I don’t know the rest of the words, but just the association represents Mr. Jorge Del Alamo and the recruiters in Mexico.”
9

[Olvera-Morales Dep. at 44]. Although it is not clear from the deposition testimony, it appears that this card may have been marked as Exhibit No. 3 to Ms. Olvera-Morales deposition. It does not appear that a copy of Exhibit No. 3 to Ms. Olvera-Morales deposition was provided to the Court, however, it appears that Exhibit 10 to Del-Al’s deposition may be the same document that is Exhibit No. 3 to Ms. Olvera-Morales’ deposition. It appears from the deposition testimony, and from viewing Exhibit No. 10 to Del-Al’s deposition, that the front of the card does not contain Mr. Del Alamo’s name (although the name Jorge may appear handwritten on the back of the card) but instead contains the name Del-Al Associates, Inc., as well as a phone number in San Antonio, Texas. [OlveraMorales Dep. at 55-57, 88].
Third, Ms. Olvera-Morales testified that she received a phone number for the “North Carolina Association” when she was working in Michigan. [Olvera-Morales Dep. at 120]. When she called the number she had been given, Ms. OlveraMorales asked to speak to Mr. Jorge Del Alamo. [Id.] The woman who answered the phone identified herself as Dora and told Ms. Olvera-Morales that Mr. Del Alamo was not there. [Id.] Ms. Olvera-Morales asked Dora if she was Mr. Del Alamo’s secretary, and Dora responded that she was his secretary. [Olvera-Morales Dep. at 48]. It is not clear whether, or if, Dora identified herself as an employee of NCGA or ILMC.
Ms. Olvera-Morales called the same number six or seven times seeking
10

assistance with a visa extension. [Olvera-Morales Dep. at 121-23; see also Warner Dec. Ex. 16 (Olvera-Morales Aff.)]. During one of those subsequent phone calls, Dora told Ms. Olvera-Morales that she (Dora) would speak with Jorge Del Alamo about her visa extension. [Olvera-Morales Dep. at 120-23]. The phone number Ms. Olvera-Morales called was shared by NCGA and ILMC at that time. Ms. OlveraMorales’ address book, which she presented at her deposition in this matter, contained a listing for the North Carolina Association. [Olvera-Morales Dep. at 8687]. In addition, this address book contained a listing for Jorge Del Alamo including a phone number that was not the same as the North Carolina Association number. [Olvera-Morales Dep. at 87, 119].
As to the fourth Glus factor, while there may be some evidence to suggest that Dora and Ms. Olvera-Morales’ co-workers in Michigan represented to Ms. Olvera-Morales that Mr. Del Alamo was an employee of either ILMC or NCGA, there is no evidence that Mr. Del Alamo himself or anyone else associated with Del-Al made any representations to Ms. Olvera-Morales regarding an association between Mr. Del Alamo and either ILMC or NCGA. Cf. Bharadwaja v. O’Malley, slip op., 2006 WL 2811257, at *7 (D. Md. Sept. 27, 2006) (finding identity of interest based, in part, on evidence suggesting that the unnamed party itself may have represented to the plaintiff that its relationship with the plaintiff was through the named party). Thus, this factor weighs against a finding of identity of interest.
As to the first Glus factor, although Ms. Olvera-Morales has testified that it
11

was her belief Mr. Del Alamo worked for the “North Carolina Association,” it appears that she possessed at least some documentation prior to the filing of the EEOC complaint that specifically referred to Del-Al Associates. Considering the facts in the light most favorable to Ms. Olvera-Morales, it appears that she may not have been able to determine, through reasonable efforts, Del-Al’s role at the time of the filing of the EEOC complaint. In this case, however, Ms. Olvera-Morales did not prepare and file her EEOC complaint. Rather, she was represented by counsel experienced in Title VII matters. Thus, it is necessary to determine whether Ms. Olvera-Morales’ counsel could have discovered the role of Mr. Del Alamo prior to the filing of the EEOC complaint. To address this issue, counsel for Ms. OlveraMorales has submitted a declaration regarding the basis for his belief that Mr. DelAlamo was an employee of ILMC at the time the initial EEOC complaint was filed.
In this declaration, counsel refers to deposition testimony by Ms. OlveraMorales in June 2000 that Mr. Del Alamo worked for the “association of North Carolina.” [Werner Decl. ¶ 9(A)]. Because the EEOC complaint was filed in April 2000, Ms. Olvera-Morales’ testimony in June 2000, after the EEOC complaint was filed, is not relevant to a determination of what counsel knew at the time the EEOC complaint was filed. In addition, counsel points to Ms. Olvera-Morales’ visa and other documentation that refers only to ILMC and states, “Ms. Olvera-Morales has indicated she received [this documentation] from Jorge Del Alamo or his agents,” which “suggest[s] that Mr. Del Alamo was acting on behalf of ILMC.” [Werner
12

Dec. ¶(B)]. However, Ms. Olvera-Morales’ deposition testimony belies this statement; Ms. Olvera-Morales testified that she had not heard Mr. Del Alamo’s name until she arrived in Michigan. [Olvera-Morales Dep. at 60-61]. Based on this testimony, it is unclear how Ms. Olvera-Morales could have “indicated” that she received her visa documents from Mr. Del Alamo, a man whose name she had not heard at the time she received those documents. Finally, counsel cites to Plaintiffs’ Interrogatory Responses, which provide that Plaintiffs were not aware of the existence of Del-Al until 2002 and also cites Del-Al’s Interrogatory Responses, which indicate that Mr. Del Alamo is the president of Del-Al. [Werner Decl. ¶ 9(C), (D)].
Absent from counsel’s declaration, however, is a description of the investigation counsel conducted prior to the filing of the EEOC complaint to confirm whether Mr. Del Alamo was in fact an employee of ILMC or NCGA. For example, counsel could have called the phone number for ILMC/NCGA and asked to speak to Mr. Del Alamo and, if he was not available, inquired further as to how to contact him. In addition, counsel could have asked the individual who answered the phone for further information about Mr. Del Alamo. In addition, Ms. Olvera-Morales has testified that she gave the card containing a reference to Del-Al Associates to her attorneys. On these facts, it appears that Ms. Olvera-Morales’ attorney, who prepared and filed the EEOC complaint, should have been able to ascertain, through reasonable effort, that Mr. Del Alamo was not an employee or representative of
13

ILMC at the time the EEOC complaint was filed in this matter. However, even assuming Ms. Olvera-Morales and her counsel could not have determined Del-Al’s role through reasonable efforts and this factor were to weigh in Plaintiffs’ favor, the remaining Glus factors would not support a finding of an identity of interest between ILMC and Del-Al.
With respect to the second and third Glus factors,, Ms. Olvera-Morales does not present any evidence in response to Del-Al’s summary judgment motion that Del-Al’s interests are so similar to ILMC’s that it was not necessary for Del-Al to participate in the conciliation process. [See Pl.’s Consolidated Brief at 9-10 (mentioning only ILMC and NCGA when discussing the second Glus factor)]. Moreover, it is undisputed that Del-Al was not provided any notice of the EEOC complaint prior to the amendment that was filed by Ms. Olvera-Morales’ counsel two years after the initial complaint was filed. Although this amendment was filed before Ms. Olvera-Morales received her right to sue letter from the EEOC, it was not filed within 300 days of the last act of alleged discrimination.
Ms. Olvera-Morales has not presented sufficient evidence to establish that Del-Al had an identity of interest with ILMC for purposes of satisfying the EEOC naming requirement. Thus, Ms. Olvera-Morales has failed to exhaust her administrative remedies as to Del-Al. Del-Al’s Motion for Summary Judgment is GRANTED, and the Title VII claims against Del-Al are DISMISSED.
2.
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As to the relationship between ILMC and NCGA, when Ms. Olvera-Morales’ original EEOC complaint was filed against ILMC, Mr. C. Stanford Eury, Jr., “was both the president of ILMC and the Executive Director of NCGA.” [Eury Aff. ¶ 33]. While NCGA and ILMC are separately incorporated entities, they “share a building” and “share certain infrastructure.” [Eury Aff. ¶ 4]. For example, ILMC rents the second floor of office space that is owned by NCGA, and NCGA occupies the first floor. [Defs.’ Resp. Interrog. 3]. In addition, at the time at issue, NCGA and ILMC shared a telephone number, and Mr. Eury has testified that he was “not surprised to hear that an ILMC employee would have allegedly answered the telephone ‘NCGA.’” [Eury Dep. at 37]. Because NCGA and ILMC shared a telephone number, it was not clear to Ms. Olvera-Morales whether she was speaking with an NCGA employee or an ILMC employee, and it appears she likely spoke to employees of both NCGA and ILMC when she was seeking assistance with her visa extension.
ILMC and NCGA, through a declaration by their counsel, assert that despite Ms. Olvera-Morales’ lack of understanding of the relationship between ILMC and NCGA, Plaintiff’s counsel was well aware of a relationship between NCGA and ILMC long before the amended EEOC complaint naming NCGA was filed. According to this declaration, in November 2000 – approximately 7 months after Ms. Olvera-Morales filed her initial EEOC discrimination charge and approximately 17 months before she filed the amended charge naming NCGA – counsel for Ms.
15

Olvera-Morales sent a 30(b)(6) Notice of Deposition to ILMC in another lawsuit that identified deposition topics seeking information about NCGA. NCGA asserts that this 30(b)(6) Notice demonstrates that Plaintiff’s counsel was clearly aware that ILMC and NCGA were related entities.
A review of the 30(b)(6) Notice, however, does not necessitate drawing the conclusion reached by ILMC. The first topic of the 30(b)(6) Notice that mentions NCGA refers to ILMC “using the services” of NCGA. If Plaintiff’s counsel was seeking information regarding ILMC’s use of NCGA’s services, it does not follow that Plaintiff’s counsel believed ILMC and NCGA were such closely related entities that NCGA should be named in Ms. Olvera-Morales’ EEOC complaint. In addition, the paragraphs of the 30(b)(6) Notice that specifically reference Ms. OlveraMorales make no mention of NCGA and refer only to ILMC. Contrary to ILMC’s assertion, it is not clear from reviewing this 30(b)(6) Notice that counsel for Plaintiff believed there was a relationship between ILMC and NCGA such that NCGA should be identified as a respondent in Ms. Olvera-Morales’ EEOC complaint.
With respect to the other Glus factors, it is undisputed that NCGA and ILMC are closely related entities. In fact, at the time the EEOC complaint was filed, Mr. Eury was both the president of ILMC and the Executive Director of NCGA. NCGA asserts, however, that it did not receive notice of the EEOC charge until it received a copy of the EEOC determination letter in September 2002. [Defs.’ Resp. Interrog. 7]. As a result, NCGA asserts that it was not given the opportunity to respond to
16

the EEOC charges or otherwise participate in the conciliation process. [Id.] Mr. Eury has testified that if he “had believed that NCGA would be implicated, [he] would have been deeply concerned because of the class allegations and possibly would have made dramatically different strategic decisions with respect to defense of the charges and conciliation.” [Eury Aff. ¶ 33].
Given that Mr. Eury, who was both the president of ILMC and the Executive Director of NCGA, had actual notice of the EEOC charge against ILMC, it strains credibility to assert that NCGA did not have notice of the EEOC charge. Although Mr. Eury states that he “possibly would have” taken different steps to defend an EEOC charge against NCGA, he does not provide any specific details regarding how he would have defended the charges any differently and offers no concrete facts demonstrating that NCGA was in fact prejudiced by not participating in the EEOC conciliation process.
In the light most favorable to Ms. Olvera-Morales, it was not unreasonable for her to be confused about the identities of NCGA and ILMC at the time the initial EEOC complaint was filed. In addition, NCGA and ILMC have very similar interests in this litigation, and NCGA has not shown how it was prejudiced by not participating in the EEOC conciliation process. Thus, for purposes of the EEOC naming requirement, NCGA and ILMC share an identity of interest, and NCGA’s motion for summary judgment is DENIED.
B.
17

ILMC has also moved for summary judgment on the ground that it is not an “employer” within the meaning of Title VII. Under Title VII, the term “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year . . . .” 42 U.S.C. § 2000e(b).
Upon review of the pleadings in this matter, it appears that this is the first time ILMC has raised this particular argument with respect to Plaintiff’s Title VII claim. ILMC’s Answer denies that it is an employer, however, it does not appear that ILMC ever filed a motion to dismiss the Title VII claim on the grounds that it was not an employer under Title VII. Because the numerosity requirement is an element of the plaintiff’s Title VII claim rather than an affirmative defense, ILMC may challenge this deficiency in Ms. Olvera-Morales’ claim at the summary judgment stage even though it had not previously raised this argument. See Wauben v. Protega (USA), Inc., No. 2:05-2780, slip op., 2007 WL 775614, at #34 (D.S.C. Mar. 9, 2007) (discussing Arbaugh and holding that the defendants “did not waive the argument concerning numerosity” because the “‘15 person defense’ is not really a defense but is, in actuality, an element of Plaintiff’s claim”).
A review of the evidence in the record has identified three pieces of evidence that discuss the number of individuals employed by ILMC: (1) an Interrogatory Response; (2) Mr. Eury’s Affidavit; and (3) a document listing staff of ILMC and NCGA. ILMC’s Response to Plaintiff’s Interrogatory Number Two lists
18

four ILMC employees in 1999 and six ILMC employees in 2000. [Defs.’ Resp. Interrog. at 4]. Mr. Eury has testified by way of affidavit that ILMC had four employees in 1999 and six employees in 2000. [Eury Aff. ¶ 3]. In addition, the document separately listing ILMC and NCGA employees identifies seven employees for ILMC from September 1999 to September 2000. [Werner Dec. ex. 20].
According to this evidence, it appears ILMC never employed fifteen or more employees in each of twenty or more calendar weeks during the years 1999 and 2000. Ms. Olvera-Morales has failed to controvert this specific assertion in any of her submissions in response to ILMC’s motion for summary judgment. Therefore, based on the undisputed evidence before the Court, ILMC does not qualify as an “employer” under Title VII, and therefore cannot be held liable under Title VII.
It must be noted that in addressing Defendants’ argument with respect to the “identify of interest” argument regarding the timeliness of the EEOC complaint, Ms. Olvera-Morales refers to ILMC and NCGA as “closely entertwined entities” who have “acted as a single entity” with respect to defending this litigation. [Pl. Consol. Resp. at 10]. Similarly, in her Statement of Facts, Ms. Olvera-Morales describes that ILMC and NCGA are located in the same building, have the same founder, share a fax number and postage meter, and use the same employees for bookkeeping services.
However, Plaintiff has not made any argument that ILMC and NCGA should be considered an “integrated employer” or “integrated enterprise” and thus that
19

their employees should be combined for purposes of determining whether they have the requisite number of employees for Title VII to be applicable. Hukill v. Auto Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999) (“Under the ‘integrated employer’ test, several companies may be considered so interrelated that they constitute a single employer.”) Ms. Olvera-Morales does not cite to any authority that would support the proposition that because two or more employers could be found to have an “identity of interest” for purposes of EEOC notification, those entities should be considered an “integrated employer” for purposes of determining the numerosity requirement under Title VII.
In addition, Ms. Olvera-Morales apparently conceded that she would be unable to establish such a relationship between NCGA and ILMC when she failed to assert the “alter ego” argument that was contained in the Complaint and also anticipated by the Defendants in their summary judgment papers. When this matter was pending before the Northern District of New York, counsel for Ms. Olvera-Morales indicated that in order to develop the alter ego theory he wanted to conduct discovery on issues such as whether NCGA and ILMC have (1) “followed the formalities required for corporate existence”; (2)”whether they are independently adequately capitalized”; (3) “whether there is intermingling of corporate funds with the principals' personal affairs”; (4) “the extent of intermingling of funds, assets and property between the two corporations”; (5) “the amount of business discretion displayed independently by the two
20

companies”; and (6) “the extent to which they are independent profit centers.” Olvera Morales, 322 F. Supp. 2d 211, 219 (N.D.N.Y. 2004). Ms. Olvera-Morales has not presented any evidence gleaned from this discovery. Therefore, the Court must conclude that Ms. Olvera-Morales would not be able to establish that NCGA and ILMC are alter ego entities or part of an “integrated enterprise.”
In sum, the undisputed evidence before the Court demonstrates that during the relevant time period, ILMC did not have the requisite fifteen employees to subject it to Title VII liability. As such, ILMC’s Motion for Summary Judgment as to the Title VII claims is GRANTED, and those claims are DISMISSED as to ILMC.
C. Defendants have also moved for summary judgment on the Title VII claims because they assert that any employment decisions made during the recruitment process were made while Ms. Olvera-Morales, a Mexican citizen, was in Mexico. Defendants assert that Title VII does not apply extraterritorially and thus does not apply to Ms. Olvera-Morales’ individual and class discrimination claims regarding the recruitment process.3 In support of their arguments, Defendants rely primarily upon Reyes-Gaona v. N.C. Growers Ass’n, Inc., 250 F.3d 861 (4th Cir. 2001), in which the Fourth
3ILMC and NCGA concede that Title VII would be applicable to the individual Title VII claims that Ms. Olvera-Morales asserts with respect to any allegedly discriminatory conduct committed once she was working in the United States. [Defs. Reply Br. at 8 (explaining that the “‘extraterritorial defense’ applies only to the alleged discrimination that took place in Mexico”)].
21

Circuit held that the Age Discrimination in Employment Act (“ADEA”) was not applicable to a Mexican national who applied in Mexico for a job in the United States. Id. at 862. In Reyes-Gaona, a Mexican national man over the age of 40, went to a Del-Al office in Mexico seeking work in the United States through NCGA. Id. Mr. Reyes-Gaona was told that NCGA would not hire workers who were over the age of 40. Id. The Fourth Circuit held that Mr. Reyes-Gaona could not seek relief under the ADEA because “foreign nationals in foreign countries are not covered by the ADEA, regardless of whether they are seeking employment in the United States or elsewhere.” Id. at 866-67. Defendants assert that Reyes-Gaona is dispositive of the issues in this case regarding Ms. Olvera-Morales’ claims regarding recruitment.
The facts of Reyes-Gaona are distinguishable from the facts of this case in one primary respect, however. In Reyes-Gaona, the plaintiff applied for work in Mexico and was rejected in Mexico; he never worked in the United States. In this case, however, while Ms. Olvera-Morales was recruited in Mexico, she was eventually hired by a United States company and actually worked in the United States.4 Therefore, the application of Title VII in this case would not constitute an
4On November 7, 2007, the Court entered an order granting Ms. OlveraMorales’ motion for class certification. [Doc. #123]. In the Memorandum Opinion accompanying that Order, the Court adopted the class definition proposed by Ms. Olvera-Morales of all female H-2B workers that were either “recruited, procured, or referred for employment by the Defendants or their agents.” [Doc. # 122, at 11]. In light of Reyes-Gaona, it is necessary to clarify that the class includes only those individuals who actually entered the United States and worked in the United
22

unlawful extraterritorial application of the laws of the United States . Defendants also make a related argument that because Ms. Olvera-Morales
was not authorized to work in the United States at the time she was recruited in Mexico, she cannot establish that she was qualified for the position at the time of her application. Defendants cite Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir.1998), and Chaudhry v. Mobil Oil Corp., 186 F.3d 502 (4th Cir.1999), in support of their arguments. In Egbuna, the court dismissed a complaint by an illegal alien alleging discriminatory refusal to rehire him in the United States holding that the plaintiff was not qualified for the position within the meaning of Title VII because he was not authorized for employment in the United States. Egbuna, 153 F.3d at 187. Similarly, in Chaudhry the court dismissed the complaint of a foreign national employed outside the United States by a United States employer at the time of an alleged discriminatory denial of transfer to a position in United States on the grounds that because the plaintiff lacked documentation authorizing him for employment in the United States, he was not qualified under Title VII. Chaudhry, 186 F.3d at 504-05.
Defendants raised this argument pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure before the Northern District of New York prior to the transfer of this case to this Court. This Court agrees with the rationale of the Northern District of New York when it rejected Defendants’ arguments at that
States. 23

time. Specifically, Ms. Olvera-Morales, unlike the plaintiffs in Egbuna and Chaudhry, sought assistance from these Defendants not only to obtain employment in the United States but also to obtain the necessary documentation and authorization so that she could begin working in the United States. Id. at 220. Thus, both parties anticipated that as a result of their efforts, Ms. Olvera-Morales would be qualified to work in the United States.
Moreover, as the Northern District of New York observed, “a categorical ruling that a foreign national has no protection against discriminatory hiring practices simply because she applied to work in the United States a few days before receiving INS documentation has the potential to invite abuse by employers and to undermine the goals of Title VII.” Id. at 220 (noting that Ms. OlveraMorales applied for a position on July 20, 1999 and that her “I-94 Departure Record was not approved and stamped by the Immigration and Naturalization Service (“INS”) until July 27, 1999.” Although the New York court made that observation at the 12(b)(6) stage, the parties have not presented any evidence obtained through discovery that would alter the wisdom of that court’s decision.
D. Finally, Defendants have asserted that they are entitled to summary judgment on Ms. Olvera-Morales’ employment discrimination claims because she has failed to create a genuine issue of material fact that she was discriminated against because of her sex.
24

In support of her Title VII claims, Ms. Olvera-Morales has proffered the following. Ms. Olvera-Morales, and ten putative class members, have submitted affidavits stating that when they were recruited they were never told about the H2A program, that they were qualified to perform H-2A work, and that they would have preferred to have an H-2A visa due to the benefits associated with that visa. Ms. Olvera-Morales has also testified to the same information in her deposition. Additionally, in the 30(b)(6) Deposition of Del-Al, Mr. Del Alamo testified that either NCGA or the Virginia Agricultural Growers Association told Del-Al that it preferred all-male crews in the fields. [Del-Al Dep. at 170-71].
NCGA has responded to Ms. Olvera-Morales’ proffered evidence with the testimony of Mr. Eury that NCGA did not discriminate against women and that its members/clients did not specifically request male workers for particular jobs. NCGA also asserts that Ms. Olvera-Morales’ deposition testimony could be interpreted as a statement that she was offered agricultural work. At best, this conflicting evidence creates a factual dispute and requires a determination of witness credibility, both of which are within the province of the jury.
In addition, Ms. Olvera-Morales has presented statistical evidence that fewer women were hired for H-2A positions than for H-2B positions. For example, ILMC placed 1,922 women in H-2B positions from 1999 through 2006, which represents 11.3% of the total 17,084 H-2B workers it placed. By contrast, the 2,084 women hired for H-2A positions by both ILMC and NCGA represents 2.2% of the total
25

93,872 H-2A workers they placed over the same time period. Similarly, between 1999 and 2006, Del-Al processed 4,684 women for H-2B positions, which represents 13.9% of the total 33,637 H-2B workers it processed. The 1,040 women Del-Al processed for H-2A positions represents 2.1% of the total 48,619 H-2A workers it processed over that period.
NCGA has submitted the affidavit of Dr. Mary Dunn Baker, a labor economist, to interpret these statistics. Dr. Baker concludes that the percentage of Mexican females working in H-2A and H-2B positions reflects the distribution of females working like jobs in Mexico. Ms. Olvera-Morales responded by submitting the affidavit of Dr. David W. Griffin, a labor economist and statistician, who concluded that the relied upon statistics provide strong evidence consistent with the discrimination claim at issue in this case. The interpretation of these statistics and the credibility of these experts are issues that must be decided by the jury.
IV. In the Complaint, Ms. Olvera-Morales also seeks relief under the New York Human Rights Law (“NYHRL”) for sex discrimination (Count IV) and aiding and abetting discriminatory practices (Count V). These claims are asserted on behalf of Ms. Olvera-Morales and on behalf of the class members she represents. Defendants have moved for summary judgment on the grounds that this Court lacks subject matter jurisdiction to hear the NYHRL claims by asserting that the NYHRL has no application to allegedly discriminatory acts committed by non-
26

resident employers outside the state of New York. The Defendants contend that because Ms. Olvera-Morales was recruited in Mexico and received her H-2B visa in Mexico, they did not commit any discriminatory acts in New York.
Ms. Olvera-Morales responds that although she was recruited in Mexico, she eventually worked, and was discriminated against, in New York. In support of her argument, Ms. Olvera-Morales cites a Northern District of New York case, which holds that in order for the NYHRL to apply, “a plaintiff need not allege that the discrimination originated in New York, if she alleges . . . that the discriminatory practice affected the conditions of her employment in New York.” Wilcox v. PRC of New York Ltd. P’ship, No. 95CV1291, 1997 WL 141682, at *5 (N.D.N.Y. Mar. 24, 1997). In Wilcox, the plaintiff employee was a New York resident who worked in New York and who was subject to sexual harassment on a series of business trips that took place outside New York. Id. at *1. Ms. Olvera-Morales asserts that under Wilcox the NYHRL is applicable in this case because the discriminatory act of assigning her an H-2B visa ultimately affected the conditions of her employment in New York.
The NYHRL claims are currently before the Court pursuant to the supplemental jurisdiction statute. See 28 U.S.C. § 1367(a) (providing that “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims within such original jurisdiction that they form part of the same case or
27

controversy“). In this case, there is no dispute that the NYHRL claims are “so related” to the Title VII claims that “they form part of the same case or controversy.”
However, as the Supreme Court has explained, “to say that the terms of § 1367(a) authorize the district courts to exercise supplemental jurisdiction over state law claims . . . does not mean that the jurisdiction must be exercised in all cases.” City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 172 (1997). Rather, “district courts can decline to exercise jurisdiction over pendent claims for a number of valid reasons” and should “deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity . . . .” Id. at172-73 (citations omitted). In addition, by statute, a district court may decline supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c)(1)-(4). In this case, Ms. Olvera-Morales seeks to have the NYHRL applied to nonNew York defendants who recruited her in Mexico. At the time the defendants made their allegedly discriminatory decisions regarding Ms. Olvera-Morales, they did not know that she would eventually be employed in New York. In fact, when she was initially hired, Ms. Olvera-Morales was assigned to a plant in Michigan. As
28

noted above, the NYHRL has been held to apply to conduct outside the state that affects the conditions of employment in New York when the employee was employed in New York at the time the discriminatory conduct was committed. It is not clear, however, whether the New York courts would extend the application of the NYHRL to conduct that could eventually affect an individual in New York if at the time the conduct was committed the employee was not currently employed in New York and had no expectation of being employed in New York at that time. The parties have not cited to any New York case law that would apply the NYHRL in this circumstance.
Thus, the facts of this case appear to create a novel issue of state law regarding the application of the NYHRL that would best be decided by the New York courts. On these facts, and because it has been determined that neither DelAl nor ILMC are appropriate defendants in the Title VII case, the Court declines to exercise supplemental jurisdiction over the NYHRL claims, and those claims are DISMISSED WITHOUT PREJUDICE.
V. In sum, ILMC and NCGA’s Motion for Summary Judgment [Doc. # 101] on the Title VII claims is GRANTED as to ILMC, and those claims are DISMISSED. ILMC and NCGA’s Motion for Summary Judgment [Doc. # 101] on the Title VII claims is DENIED as to NCGA. Del-Al’s Motion for Summary Judgment [Doc. # 98] as to the Title VII claims is GRANTED, and those claims are DISMISSED. The
29

Court declines to exercise supplemental jurisdiction over the New York Human Rights Law claims, and those claims are DISMISSED WITHOUT PREJUDICE.
This the day of January 1, 2008 /s/ N. Carlton Tilley, Jr.
United States District Judge
30

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCELA OLVERA-MORALES,

)

on behalf of herself and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

INTERNATIONAL LABOR MANAGEMENT )

CORPORATION, INC.; NORTH CAROLINA )

GROWERS ASSOCIATION, INC.; and

)

DEL-AL ASSOCIATES, INC.,

)

)

Defendants.

)

_________________________________________ )

1:05CV00559

MEMORANDUM ORDER

TILLEY, District Judge

This case arises out of a dispute concerning the recruitment of temporary

foreign workers pursuant to the H-2A and H-2B visa guest worker programs. The

matter is now before the Court on Plaintiff Marcela Olvera-Morales’ Motion for

Reconsideration [Doc. # 154] regarding the Court’s entry of Summary Judgment in

favor of Defendant International Labor Management Corporation (“ILMC”). For the

reasons set forth below, the Motion for Reconsideration [Doc. # 154] is GRANTED.

The Title VII claim is reinstated against ILMC as an employment agency.

I.

Ms. Olvera-Morales, a Mexican citizen who resides in Ecatepac, Mexico, was

hired to work in the United States under the H-2B visa program on behalf of ILMC.

Ms. Olvera-Morales asserts, on behalf of herself and on behalf of other similarly situated, that she was qualified to work in an H-2A position and would have preferred such an assignment because of its preferable benefits. Ms. OlveraMorales further asserts that even though there were men with similar or lesser qualifications that were recruited by ILMC for H-2A positions, Ms. Olvera-Morales was neither offered such a position nor informed that such positions existed.
Ms. Olvera-Morales filed the instant lawsuit on December 22, 2002 in the Northern District of New York asserting violations of Title VII and the New York Human Rights Law. The case was transferred to this Court on June 15, 2005. On November 7, 2007, the Court entered an order granting Ms. Olvera-Morales’ motion for class certification. [Doc. #123]. Each of the Defendants filed Motions for Summary Judgment, which the Court granted in part and denied in part by Memorandum Opinion [Doc. # 153] and Order [Doc. # 141]. With respect to ILMC, the Court dismissed the Title VII claims on the grounds that ILMC was not an “employer” under Title VII because it did not have the requisite 15 employees necessary to invoke Title VII liability. [Doc. # 153]. Ms. Olvera-Morales has filed the instant motion seeing reconsideration of that Memorandum Opinion and Order on the grounds that ILMC is an employment agency and that the 15-employee minimum does not apply to employment agencies.
II. Title VII makes it unlawful for “employers,” “employment agencies,” or
2

“labor organizations” to discriminate against an individual on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). An “employer” is a “person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b). Thus, in order to be liable as an employer under Title VII, an entity must employ 15 or more employees for twenty or more calendar weeks during the relevant time period.
An “employment agency” is defined as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.” 42 U.S.C. § 2000e(c). Unlike the definition of “employer,” the definition of “employment agency” does not include a minimum employee requirement for liability under Title VII.
In the Complaint in this matter, Ms. Olvera-Morales asserted that ILMC was her “employer” under Title VII. [Doc. # 1 ¶ 36]. In addition, Ms. Olvera-Morales asserted that ILMC was an “employment agency” within the meaning of Title VII. [Doc. # 1 ¶ 42]. Count II of the Complaint specifically alleges, on behalf of the class, a Title VII claim against the “Employment Agency Defendants,” which includes ILMC. [[Doc. # 1 ¶¶ 117-22]. In its Answer, ILMC stated that these allegations called for a legal conclusion and otherwise denied each of these allegations. It is clear that the Complaint asserted a Title VII claim against ILMC both as an employer and an employment agency.
3

In its Motion for Summary Judgment, ILMC sought dismissal of the Title VII claim on the grounds that it was not an “employer” under Title VII because it did not have the requisite 15 employees during the relevant time period. [Doc. # 102 at 12-13]. The Court granted the Motion for Summary Judgment on those grounds. [Doc. # 153 at 19]. ILMC did not assert that it was not an “employment agency.” As such, that issue was not before the Court at the summary judgment stage, and it was error for the Court to issue an order dismissing all Title VII claims against ILMC. Therefore, the Title VII claim against ILMC as an employment agency is reinstated.
The fact that the Court has reinstated the Title VII claim against ILMC does not constitute a legal finding that ILMC is an “employment agency” as that term is defined under Title VII. At this point in the proceedings, Plaintiff has alleged that ILMC is an “employment agency,” and ILMC has denied this allegation. As a Plaintiff must establish that an entity had 15 or more employees as an element of a Title VII claim, Ms. Olvera-Morales must establish that ILMC qualifies as an “employment agency” as an element of her Title VII claim. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding “that the threshold number of employees for application of Title VII is an element of a plaintiff's claim”).1 For
1In her Brief in Support of Motion for Reconsideration, Ms. Olvera-Morales asserts that the Court “explicitly found” that ILMC was an employment agency within the meaning of Title VII in the Memorandum Opinion and Order granting Plaintiff’s Motion for Class Certification. [Doc. # 156 at 3]. As the Court explained in its Memorandum Opinion, a ruling on a Motion for Class Certification is not an
4

example, the definition of “employment agency” requires that the entity must “regularly . . . procure employees or an employer.” Thus, Plaintiff must establish that ILMC regularly procured employees for entities that would satisfy the definition of “employer” as that term is defined within Title VII. At this point, Plaintiff has not presented any evidence that would allow the Court to find she has established this element of her claim.
III. In sum, Ms. Olvera-Morales’ Motion for Reconsideration [Doc. # 154] is GRANTED. The Title VII claim against ILMC as an “employment agency” is reinstated.
This the 20th day of February, 2008. /s/ N. Carlton Tilley, Jr.
United States District Judge
evaluation of the merits of the Plaintiff’s claim. [Doc. # 122 at 8]. Thus, the assertion that any portion of the Memorandum Opinion and Order granting Plaintiff’s Motion for Class Certification constitutes a legal finding on the merits of Ms. Olvera-Morales’ Title VII claim is incorrect.
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCELA OLVERA-MORALES,

)

on behalf of herself and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

INTERNATIONAL LABOR MANAGEMENT )

CORPORATION, INC.; NORTH CAROLINA )

GROWERS ASSOCIATION, INC.; and

)

DEL-AL ASSOCIATES, INC.,

)

)

Defendants.

)

__________________________________________)

1:05CV00559

MEMORANDUM ORDER

TILLEY, District Judge

This case arises out of a dispute concerning the recruitment of temporary

foreign workers pursuant to the H-2A and H-2B visa guest worker programs. The

matter is now before the Court on Defendant North Carolina Growers’ Association,

Inc.’s (“NCGA”) Motion for Reconsideration [Doc. # 159]. For the reasons set

forth below, the Motion for Reconsideration [Doc. # 159] is GRANTED, and the

Title VII claims against NCGA are DISMISSED.

I.

Ms. Olvera-Morales filed the instant lawsuit on December 22, 2002, in the

Northern District of New York asserting violations of Title VII and the New York

Human Rights Law. The case was transferred to this Court on June 15, 2005.

Each of the Defendants filed Motions for Summary Judgment, which the Court granted in part and denied in part by Memorandum Opinion [Doc. # 153] and Order [Doc. # 141].
In support of its motion for summary judgment, NCGA asserted that it was not a proper a defendant because it was not named in Ms. Olvera-Morales’ initial EEOC charge. The Court denied NCGA’s motion for summary judgment on the grounds that it had an identity of interest with co-defendant International Labor Management Corporation (“ILMC”), which was named in Ms. Olvera-Morales’ initial EEOC charge. NCGA has filed the instant motion seeing reconsideration of the denial of its motion for summary judgment on the grounds that the identity of interest exception is not applicable in this case because Ms. Olvera-Morales was represented by counsel at the time she filed her initial EEOC charge.
II. It is well established that in order to sustain a civil action pursuant to Title VII, a plaintiff must exhaust her administrative remedies. On April 26, 2000, Ms. Olvera-Morales filed two charges of discrimination with the EEOC naming ILMC as the defendant. On March 15, 2002, Ms. Olvera-Morales amended her EEOC charge to add NCGA as an additional defendant. NCGA asserts that Ms. OlveraMorales did not file a timely EEOC charge against it and thus that she has failed to exhaust her administrative remedies with respect to it. Generally, failure to name a party in the EEOC charge means the plaintiff did
2

not exhaust administrative remedies against that party, and a district court must dismiss the case. See Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 458-59 (4th Cir.1988); see also 42 U.S.C. § 2000e-5(f)(1) (specifying that an individual may bring an action against a party “named in the charge”). The Fourth Circuit has noted that “[c]ourts have developed exceptions to this rule, though, where it is clear that the defendant through some relationship with the named respondent had notice of the charges and participated in the conciliation process.” EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1186 n.5 (4th Cir. 1981); see also Alvarado, 848 F.2d at 461 (explaining that the “Fourth Circuit has not had occasion to decide whether to adopt the substantial identity exception” but noting that the American National Bank case quoted such language “with approval . . . in dictum”).
As noted in the Memorandum Opinion considering the motions for summary judgment, several district courts in the Fourth Circuit have applied the “identity of interest” test set forth by the Third Circuit in Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), to determine whether a defendant had notice of the EEOC charges and participated in the conciliation process. [Doc. # 153 at 7-8 (citing cases and discussing the Glus factors)]. The Court then applied the identity of interest exception, found that NCGA and ILMC had an identity of interest, and denied NCGA’s motion for summary judgment. [Doc. # 153 at 17].
In the instant Motion for Reconsideration, NCGA asserts that the identity of
3

interest exception should not apply because Ms. Olvera-Morales was represented by counsel at the time she filed her initial EEOC complaint. In support of its motion, NCGA cites case law from district courts within the Second Circuit where the identity of interest exception was not applied when the plaintiff was represented by counsel at the time the initial EEOC complaint was filed. [Doc. # 160 at 3-4 (citing cases)].
The Court finds the reasoning of the cases cited by NCGA to be persuasive. In addition, the Fourth Circuit has noted that “Title VII does not require procedural exactness from lay complainants” and “EEOC charges must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.” Alvardo, 848 F.2d at 460 (quotation omitted). It is undisputed that Ms. Olvera-Morales was represented by counsel at the time she filed her initial EEOC complaint. Therefore, the rationale behind the identity of interest exception– that the pleadings of lay complainants should be construed liberally–is not applicable in this case. NCGA’s Motion for Reconsideration [Doc. # 159] is GRANTED. The Title VII claims against NCGA are DISMISSED.

This the 4th day of April, 2008.

/s/ N. Carlton Tilley, Jr. United States District Judge

4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCELA OLVERA-MORALES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED
Plaintiffs,
v.
INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.; NORTH CAROLINA GROWERS' : ASSOCIATION, INC.;
Defendants.

Civ. Action No. I :05-cv-559(NCT-PTS)

SETTLEMENT AGREEMENT A. This Settlement Agreement ("Agreement") is made between Plaintiff Marcela
Olvera-Morales and the class she was certified to represent (collectively referred to as "Class Plaintiffs") and Defendant International Labor Management Corporation, Inc. ("ILMC") and former Defendant North Carolina Growers' Association, Inc. ("NCGA") (collectively referred to as "Defendants") for the purpose of settling the various claims, controversies and disputes among these parties arising out of the facts and circumstances relating to Olvera-Morales, on behalfofherse?fand all others similarly situated v. International Labor Management Corporation, Inc., et al., I :05-cv-559 (M.D.N.C.).

EXHIBIT
1
Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 1 of 18

B. Class Plaintiffs asserted claims against Defendants for violations of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e-2(a)(l) and (2) and the New York Human Rights Law, N.Y. Exec. Law § 296(l)(a) (McKinney's 2001).
C. U.S. District Jndge Carlton Tilley, Jr. certified a plaintiff class on November 7, 2007. Plaintiff Olvera-Morales was certified to represent "[a]1I female H-2B workers recruited, procnred or referred for employment by the Defendants or their agents, or whose H-2B employment opportunity was procnred by Defendants or their agents, from 1999 to the present." See Memorandum Opinion, November 7, 2007 (ECF No. 122).
D. Defendants have denied and continue to deny any liability. Nothing in this agreement shall constitute any admission or evidence of any violation of the law or other wrongful activity.
E. The Class Plaintiffs and the Defendants wish to resolve all claims and controversy
between them arising out of this action and hereby enter into this Agreement for that express purpose.
NOW, THEREFORE, in consideration of the mutual covenants, the promises and other good and valuable considerations, the sufficiency of which hereby are acknowledged, the undersigned parties agree that the above-captioned action shall be compromised and settled, subject to the approval of the Court, in accordance with the following terms and conditions: 1. Filing of Settlement Agreement and Payment of Settlement Funds. On or within thirty (30) business days of the Parties' execution of this Agreement, the Parties will file an executed copy of this Agreement with the Court and jointly
2 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 2 of 18

request the Court to grant its preliminary approval to the Agreement, approve a Notice of Proposed Class Action Settlement, authorize the dissemination of said Notice to Class Members, appoint a the settlement administrator, and conduct a fairness hearing and grant its final approval to the Agreement. • Defendants will pay a total of $1 00,000 in settlement funds. On or within five
(5) business days of the date after which the Court grants its final approval of the Agreement, the Defendants will deliver funds equaling this amount to be deposited in the Trust Account of the North Carolina Justice Center The Parties will ask the Court to award $12,000 of this amount to the class representative as an incentive award. The Defendants agree to pay this amount subject to the Court's approval; • Class Counsel will petition the Court for an Order approving the recovery of expenses for the prosecution of this action in the sum of $13,000 out of the above settlement fund. The Defendants agree to pay this amount subject to the Court's approval. Any funds remaining after the approval of the incentive award to the class representative and litigation expenses to class counsel will be distributed as a cy pres award to the Red de Mujeres del Bajio (Network of Women in the Lowlands), a Mexican non-profit organization that provides training and advising to rural women; • Cy pres Recipients, pursuant to paragraph 4 hereof, shall be solely responsible for payment of any taxes on any distributions from the Settlement Fund that they receive.
3 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 3 of 18

2. Settlement Administration. In addition to the payment of settlement funds outlined in the preceding paragraph, Defendants will pay the following expenses, up to $10,000, associated with administering this settlement agreement: • Mailing of settlement notice to Class Plaintiffs; • Mailing of six conununications (three annual mailings for each Defendant) to hired H-2A and H-2B workers as outlined in Paragraph 4(a) below; • Costs associated with use of the settlement administrator to handle each of the above mailings. • Defendants agree to pay the costs, if any, that exceed $10,000, in the event that this excess is due to fees of the settlement logistics provider.
3. Attorney fees and costs. Except as expressly provided herein, each of the Parties shall bear their own attorneys' fees, costs, disbursements and expenses incurred in prosecuting the above captioned civil action.
4. Settlement Monitoring. Defendants shall report the following information in electronic fonnat to c0l111sei for Class Plaintiffs, Andrew Stillufsen of Kaye Scholer, LLP, in Excel or the equivalent format: • for each H-2A and H-2B worker hired by Defendants' members and/or clients,
the individual worker identification nmnber, passport number, gender, preferred worker status, and member/client identification number. • for each member/client of Defendants who hired H-2A and H-2B workers, the member/client identification number, location, nmnber of workers requested (including preferred worker status), and position for which hired.
4 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 4 of 18

The above information shall be provided by Defendant NCGA in January of each year,

for three years, with the first report provided by January 31, 2009. The above

information shall be provided by Defendant ILMC in July of each year, for three years,

with the first report provided by July 31,2009.

a) Communications with Hired H-2A and H-2B Workers.

i)

Counsel for Class Plaintiffs shall be entitled to send a "settlement

monitoring letter" to the hired H-2A and H-2B workers once each year for a period of

three years. Counsel for Class Plaintiffs shall provide to Defendants, no later than 30

days before the letter is to be sent, an outline of the settlement monitoring letter that

will be sent to the hired H-2A and H-2B workers. The content of the letter shall be

limited to class settlement issues only.

ii) Defendants shall provide contact information for each of the hired H-2A and H-

2B workers to a mutually agreed-upon third party administrator, which shall mail the

settlement monitoring letter to the hired H-2A and H-2B workers.

iii) For any hired H-2A or H-2B worker for whom only incomplete address

information is available, Defendants shall provide the worker's name and the

available address information to Class Plaintiffs' counsel at the time contact

information for the other hired H-2A and H-2B workers is provided to the third party

administrator.

iv) If any settlement monitoring letter is returned to the third party administrator

as undeliverable, the letter and envelope and any other relevant information as to why

the letter was not delivered shall be provided to Class Plaintiffs' counsel within 10

business days.

5 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 5 of 18

v) If recipients of the settlement monitoring letter contact Class Plaintiffs' counsel regarding issues unrelated to the settlement, Class Plaintiffs' counsel may respond to the issues raised. b) Requests for Documentation. Class Plaintiffs may request underlying documentation for any request for H-2A or H-2B workers placed by Defendants' clients and/or members, up to 10% of the total number ofNCGA's members and up to 10% of the total number ofILMC's clients during the calendar year in which the H-2A or H-2B workers worked for the client/member. Any request to NCGA or to ILMC shall be made within 60 days of the receipt by Class Counsel of the report described in Paragraph 4.. c) Confidentiality. Except to enforce the terms of this agreement, Class Plaintiffs
shall not share the monitoring reports provided by Defendants pursuant to this agreement with any other person or entity, or disclose the information contained therein. Nothing herein shall be construed to restrict Class Counsel's communications with Plaintiff Class members. 5. Anti-Discriminatiou Policies. a) Defendants and their agents shall not discriminate on the basis of sex in violation of Mexican or United States law, as applicable, in any aspect of the recruitment or hiring of individuals for H-2A or H-2B employment. b) Defendants' staff shall participate in mutually agreeable anti-discrimination training that addresses sex discrimination. Defendants shall instruct in writing that Manpower of the Americas, Inc. ("MOAI"), Consular Services International ("CSI") or any other entity that provides defendants visa processing or recruitment services in
6 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 6 of 18

Mexico (hereinafter referred to as "Defendants' visa processors and recruiters") to require their employees and any and all recruiters used in Mexico to undergo such training. If the mutually agreed upon provider ceases to offer such training during the time period covered by this agreement, the training shall be provided by a mutually agreed upon online provider and shall cover material that is mutually agreed upon by the parties. The training shall be provided annually for three years, starting 2009. Defendants shall arrange for the training and shall pay for the cost of the training. The training shall be available to the relevant persons throughout the year. Defendants shall provide to Class Plaintiffs' counsel a report listing, by name, each Defendant staff member, employee ofthe visa processing agent and/or recruiter who underwent the training on a quarterly basis. Defendants shall make every effort to ensure that the employees of Defendants' visa processors and recruiters in Mexico actually complete such training, including by requiring such visa processors to certify to Defendants, in writing, that their employees have completed such training and have instructed the recruiters to under go such training. Defendants shall provide copies of these certifications to Class Counsel. In any enforcement proceeding to enforce this provision of the Agreement, Defendants may raise as a defense that they have taken all good faith efforts to assure full compliance with this provision.
c) If a Defendants' client or member requests H-2A or H-2B workers of a specific gender, either directly or indirectly, Defendants shall respond that gender-specific requests are unlawful and will not be accommodated. d) Every person who recruits H-2A or H-2B workers in Mexico for employment with Defendants' clients or members shall be instructed to provide the written educational
7 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 7 of 18

statement attached as Exhibit 1 in Spanish and English, to every prospective worker with whom they have contact. Defendants shall make every effort to ensure that the recruiters in Mexico actnally comply with this requirement, including by requiring such visa processors to certify to Defendants, in writing, that their employees have complied with this requirement and have instructed the recruiters to comply. Defendants shall provide copies of these certifications to Class Counsel.. In any enforcement proceeding to enforce this provision of the Agreement, Defendants may raise as a defense that they have taken all good faith efforts to assure full compliance with this provision.
e) Defendants shall post the general anti-discrimination poster furnished by the Equal Employment Opportunity Commission the United States Department of Labor, and/or a state Department of Labor in Spanish and English.
f) Defendants shall post the anti-discrimination policy attached as Exhibit 2 at any offices they maintain in Mexico and shall instruct any visa-processing agents to post the policy at their in Mexico. These notices shall remain posted for at least three years from the date this agreement is signed. Defendants shall make every effort to ensure that Defendants' visa processors in Mexico actually comply with this requirement, including by requiring such visa processors to certify to Defendants, in writing, that they have complied with this requirement. Defendants shall provide copies of these certifications to Class Counsel. In any enforcement proceeding to enforce this provision of the Agreement, Defendants may raise as a defense that they have taken all good faith efforts to assure full compliance with this provision.
g) Every person or entity who recruits H-2A or H-2B workers in Mexico for employment with Defendants' clients or members shall be instructed to include in any
8 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 8 of 18

written or oral advertisement for those positions a statement that the positions are open to qualified applicants regardless of sex Defendants shall make every effort to ensure that Defendants' visa processors in Mexico actually comply with this requirement, including by requiring such visa processors to certify to Defendants, in writing, that they have instructed the recruiters to comply. Defendants shall provide copies of these certifications to Class Counsel. In any enforcement proceeding to enforce this provision of the Agreement, Defendants may raise as a defense that they have taken good faith efforts to assure full compliance. 6. Release. Upon the Court's final approval of this Settlement Agreement, Class representative Marcela Olvera-Morales shall execute the attached individual release, translated into Spanish (Exhibit 3), and any federal, state, local, statutory or common law claims related to sex discrimination that were asserted or could have been asserted in this action by the class members will be deemed released. The notice to Class Plaintiffs shall include this class release 7. Press Release. The parties shall release a mutually agreeable joint press release within 10 days of the Court's final approval of this Settlement Agreement. Apart from the press release, neither the parties nor their counsel will initiate contact with any member of the media. However, if contacted by the media, the parties and their counsel may comment on the case and the settlement. 8. Appeal. Class Plaintiffs and Defendants waive any right to appeal they may have with regard to any aspect of the above-referenced case, without exception, 9. Stipulated Order and Joint Memoranda. The parties shall submit ajoint memorandum for preliminary and final approval of the Settlement Agreement to the U.S.
9 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 9 of 18

District Court for the Middle District of North Carolina, along with a stipulated Consent Decree based upon the above agreed upon provisions. 10. Continuing Jurisdiction. The parties shall jointly request that the U.S. District Court for the Middle District of North Carolina assume and retain continuing jurisdiction over this action for purposes of any motion, action or proceeding that may be brought by the named Plaintiff, any member of the Plaintiff Class, and Defendants to enforce any term of the Settlement Agreement and Consent Decree that are entered in this case. 11. Dismissal. After a final order is issued and all monetary relief has been paid by the Defendants, the parties shall file a Stipulation of Dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure, dismissing all claims against the Defendants in this lawsuit. 12. Binding. It is understood and agreed by the parties that this Agreement shall be binding and inure to the benefit of the Plaintiffs and Defendants and their respective heirs, representatives, successors and assigns. 13. Authority. Plaintiffs' Counsel and Defendants' Counsel each affinn that they have full authority to bind the respective parties whom they represent in this action and to enter into this Agreement on behalf of those parties. 14. Modification. This Agreement may be modified only by a written document signed by all parties that makes specific reference to this Agreement. 15. Multiple Originals and Counterparts. This Agreement may be executed in multiple originals and separate counterparts each of which shall constitute an original and all of which taken together shall constitute the whole Agreement.
10 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 10 of 18

16. Arms' Length Negotiations. This Settlement Agreement is the resnlt of arms' length negotiations, and the Named Plaintiff and her counsel consider this Settlement Agreement to be fair, reasonable, adequate and in the best interests of the Class. 17. Choice of Law. This Settlement Agreement shall be govemed by and construed under the laws of North Carolina, irrespective of choice oflaw provisions. 18. Notices . .All notices, demands, requests and other communications (collectively "Notices") given or served by any party in connection with this Settlement Agreement shall be in writing. Notices shall be given by hand delivery, with receipt, or by nationally recognized overnight courier, with receipt, as follows:
Notices to Named Plaintiff and Class: Carol Brooke, Esq. North Carolina Justice Center Post Office Box 28068 Raleigh, North Carolina 27611 Andrew D. Stillufsen, Esq. Sheila S. Boston, Esq. KAYE SCHOLER LLP 425 Park Avenue New York, NY 100223598 Timothy Casey, Esq. Jennifer K. Brown, Esq. Legal Momentum 395 Hudson Street, 5th Floot New York, NY 10014 Notices to Defendants: W.R. Loftis, Jr., Esq.. Constangy, Brooks, & Smith, LLC 100 N. Cherry Street, Suite 300 Winston-Salem, NC 27101
11
Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 11 of 18

Any party may change the person to whom Notice shall be given or served by

sending notice of such change to all parties by hand delivery, with receipt, or by

nationally recognized overnight courier, with receipt.

19. Mutual Drafting of Agreement. None of the parties to this Settlement

Agreement shall be considered its drafter for the purpose of any statute, case law or

rule of interpretation or construction that would or might cause any provision to be

construed against the drafter hereof.

AGREED AND EXECUTED by the parties, acting by and through their respective

counsel.

This the _ _ day of _ _ _ _ _ _ _ _, 2008.

COUNSEL FOR DEFENDANTS

COUNSEL FOR PLAINTIFFS

CONSTANGY, BROOKS & SMITH, LLC

Date,_ _ _ _ _ _ _ _ __

Date _ _ _ _ _ _ _ _ _ __

BY: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
W.R. Loftis, Jr., Esq. N.c' State Bar # 2774 100 N. Cherry Street, Suite 300 Winston-Salem, NC 27101 (336) 721-1001

BY:. _ - - - - - - - - - -

12 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 12 of 18

Exhibit 1 - Notice to be distributed by recruiters to prospective workers.
ALL JOBS IN THE U.S. ARE OPEN TO BOTH WOMEN AND MEN All jobs in the U.S. are open to both women and men. An employer cannot recruit only men for certain types of work, such as field or farm work, or only women for other types of work, such as hotel or hospitality work.
If you are hired for ajob in the U.S., you will receive either an H-2A visa or an H2B visa. Farm or field work is usually "H-2A" work. Other work, like in hotels or hospitality, is usually H-2B work. Work in processing sheds on fanns is usually H-2B work. H-2A work includes free housing, a guaranteed work period, and payment of travel costs. H-2A workers do not receive overtime pay. H-2B work does not include free housing, a guaranteed work period, or payment of travel costs, but H-2B workers do receive overtime pay if they work more than 40 hours in a workweek. These are not "men's" and "women's" jobs - men and women have equal rights to be considered for H2A or H-2B positions. You may refer both men and women to any open position.
Sex discrimination is against the law in both Mexico and the United States. If you think you were given an H-2A or H-2B visa based on your sex, you can contact, in the United States, the United States EEOC toll-free at 1-800-669-4000 or 1-800-669-6820 (TTY) or, in Mexico, the National Council for the Prevention of Discrimination at 01800- 543-0033 toll-free and 5203-3355 in Mexico City.
13 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 13 of 18

Exhibit 2 - Notice to be posted in Defendants agents' offices in Mexico
******************************************** Mexican Constitution provides, in its article 1, equal protection rights, and forbids discrimination based on etlmic or national origin, gender, disability, social conditions, health conditions, religion, opinions, preferences, civil status, or any other discrimination against human dignity or individual rights or liberties. Article 3 of the Mexican Federal Labor Law provides there can be no distinction between employees based on race, sex, age, religious beliefs, political doctrine, and/or social condition. Article 9, section III, of the Federal Law to Prevent and Eliminate Discrimination, provides that discriminatory conducts include, among others, prohibiting the free choice of employment, or restricting opportunities of access, standing, and promotion within same. For information and advice and/or to report any discrimination conducts and file claims, you may contact: The National Council for the Prevention of Discrimination at www.conapred.org.mx. and
at 01 (800) 543-0033 tollfree nationwide and 5203-3355 in Mexico City. Sex discrimination is against the law in both Mexico and the United States. If you think you were given an H-2A or H-2B visa based on your sex, you can contact, in the United States, the United States EEOC toll-free at 1-800-669-4000 or 1-800-669-6820 (TTY) or, in Mexico, the National Council for the Prevention of Discrimination at 01800- 543-0033 toll-free and 5203-3355 in Mexico City.
The Federal Worker Protection Agency at www.stps.gob.mx and at 01 (800) 7172-942.
La Constitucion Politica de los Estados Unidos Mexicanos dispone, en su articulo I, garantias de igualdad y prohibe discriminacion motivada por origen etnico 0 nacional,
14
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genero, discapacidades, condicion social, condiciones de salud, religion, religion, opiniones, preferencias, estado civil, 0 cualquier otra que atente contra la dignidad humana y tenga por objeto anular 0 menoscabar los derechos y libertades de las personas. El articulo 3 de la Ley Federal del Trabajo, en Mexico, establece que no se podnm establecerse distinciones entre los trabajadores por motivos de raza, sexo, edad, credo religioso, doctrina politica 0 condicion social. El articulo 9, inciso III, de la Ley Federal para Prevenir y Eliminar la Discriminacion, establece que se consideran como conductas discriminatorias, entre otras, prohibir la libre eleccion de empleo 0 restringir las oportunidades de acceso, permanencia y ascenso en el mlsmo. Para informacion y consultas, y/o para reportar cualquier conducta discriminatoria y presentar rec1amaciones, usted puede contactar a: El Consejo Nacional para la Prevencion de la Discriminacion en www.conapred.org.mx.
yal 01 (800) 543-0033 lada sin costa y 5203-3355 en el Distrito Federal. La Procuraduria Federal para la Defensa del Trabajo en www.stps.gob.mx y al 01 (800) 7172-942 lada sin costo.
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Exhibit 3
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARCELA OLVERA-MORALES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED
Plaintiffs,
v.
INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.; NORTH CAROLINA GROWERS' : ASSOCIATION, INC.;
Defendants.

Civ. Action No. 1:05-cv-559(NCT-PTS)

INDIVIDUAL RELEASE

1. I, the undersigned Plaintiff and Class Representative, sign the following release for the purpose of fully and finally settling all my claims as a Plaintiff in the above lawsuit.
2. In consideration for the Settlement Agreement reached in this case, I, the undersigned Plaintiff, on behalf of myself, my agents, heirs, executors, administrators, counsel, successors and assigns, hereby release and forever discharge completely and for all purposes Defendants North Carolina Growers' Association, Inc. and International Labor Management Corporation, Inc. ("Defendants"), and any and aU of their past, present or future subsidiaries, parents, affiliates, officers, directors, employees, representatives, insurers, agents, counsel, successors, heirs, assigns, executors,

16 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 16 of 18

administrators, and affiliated entities from any and all claims, grievances, charges, complaints, demands, damages, costs, expenses (including attorneys' fees and costs), or causes of action which I alleged or could have alleged as of the date the Settlement Agreement in this lawsuit is executed, except for any claim for worker's compensation benefits against Defendants or their insurers. I agree that I am releasing any claims or causes of action which I alleged or could have alleged as of the date the Settlement Agreement in this lawsuit is executed under any United States or Mexican federal, state or local authority or any common law theory, including but not limited to, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Civil Rights Act of 1991, tile Age Discrimination in Employment Act, the Americans with Disabilities Act, the North Carolina Persons with Disabilities Protection Act, the North Carolina Wage and Hour Act, the North Carolina Retaliatory Employment Discrimination Act, the Employee Retirement Income Security Act of 1974, the Fanlily and Medical Leave Act, or any similar legislation, constitutional provision, executive order or regulation, or any common law theory (whether founded in tort or contract), except for any claim for worker's compensation benefits against Defendants or their insurers. I recognize that I am specifically releasing any claims under the Age Discrimination in Employment Act of 1967 and all amendments.
4. I am not waiving rights or claims that may arise after the date the Settlement Agreement is executed.
6. I have read this Release or have had this Release read to me, or both, and I fully understand it to be a compromise in settlement and release of all my claims. I affirm and guarantee that I am oflegal age and legally competent to sign this Release, which I have
17 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 17 of 18

done of my own free will and without reliance on any representation of any kind which is not expressly stated in this document or the Settlement Agreement.
7. I have been given at least twenty-one (21) days in which to consider this Release.
8. I understand that I have the right to consult with an attorney before executing this Release and I acknowledge that I have had the opportunity to consult with an attorney.
9. I understand that I have seven (7) days following the date I sign this Release to revoke this Release. To revoke this Release, I understand that I should advise the Defendants in writing of my decision to revoke it immediately upon the conclusion of the seven (7) day period. Lo antedicho me ha sido traducido por escrito 0 oralmente al espafiol. (Translation: the foregoing has been translated in writing or orally to me in Spanish).

Name

Date

18 Case 1:05-cv-00559-NCT-PTS Document 213-5 Filed 08/22/08 Page 18 of 18

 
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CLOSED
U.S. District Court Northern District of New York - Main Office (Syracuse) [LIVE - Version 3.0.6] (Syracuse)
CIVIL DOCKET FOR CASE #: 5:02-cv-01589-NAM-DEP

Olvera-Morales v. Sterling Onions, Inc, et al Assigned to: Chief Judge Norman A. Mordue Referred to: Magistrate Judge David E. Peebles Demand: $0 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff
Marcela Olvera-Morales on behalf of herself and all others similarly situated

Date Filed: 12/23/2002 Date Terminated: 06/17/2005 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Andrew Keith Solow Kaye, Scholer Law Firm 425 Park Avenue New York, NY 10022 212-836-7740 Fax: 212-836-6776 Email: asolow@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew D. Stillufsen Kaye, Scholer Law Firm 425 Park Avenue New York, NY 10022 212-836-8000 Fax: 212-836-6304 Email: dfox@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Werner Workers' Rights Law Center of New York, Inc. 101 Hurley Avenue Suite 5 Kingston, NY 12401 845-331-6615 Fax: 845-331-6617 Email: dan@workersrightsny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Kay Brown Legal Momentum 395 Hudson Street, 5th Floor New York, NY 10014

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212-925-6635 Fax: 212-226-1066 Email: jbrown@legalmomentum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Casey Legal Momentum 395 Hudson Street 5th Floor New York, NY 10014 212-925-6635 Fax: 212-226-1066 Email: tcasey@legalmomentum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea S. Christensen Kaye, Scholer Law Firm 425 Park Avenue New York, NY 10022 212-836-8000 Fax: 212-836-8689 Email: maondny@kayescholer.com ATTORNEY TO BE NOTICED
Neil S. Kaufman Kaye, Scholer Law Firm 425 Park Avenue New York, NY 10022 212-836-8000 Fax: 212-836-6528 Email: nkaufman@kayescholer.com TERMINATED: 05/23/2005
Rachel H. Yarkon Schering-Plough Corporation 2000 Galloping Hill Road K-6-1 1800 Kenilworth, NJ 07003 908-298-4527 Fax: 908-928-2868 Email: rachel.yarkon@spcorp.com TERMINATED: 03/21/2005
Wendy R. Weiser Brennan Center for Justice 161 Avenue of Americas 12th Floor New York, NY 10013

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V. Defendant Sterling Onions, Inc TERMINATED: 10/21/2004
Defendant Zappala Farms, LLC TERMINATED: 10/21/2004
Defendant Zappala Holding Company, LLC TERMINATED: 10/21/2004
Defendant Zappala Enterprises, Inc. TERMINATED: 10/21/2004
Defendant James Zappala TERMINATED: 10/21/2004
Defendant International Labor Management Corporation, Inc.

212-998-6730 Fax: 212-995-4550 Email: wendy.weiser@nyu.edu TERMINATED: 07/02/2004
represented by Joseph E. Wallen Amdursky, Pelky Law Firm 26 East Oneida Street Oswego, NY 13126 315-343-6363 Fax: 315-343-0134 Email: jwallen@apfwlaw.com TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Robin E. Shea Constangy, Brooks Law Firm - Winston Salem Office 100 North Cherry Street Suite 300 Winston Salem, NC 27101

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Defendant North Carolina Growers' Association, Inc.
Defendant Del-Al Associates, Inc.

336-721-1001 Fax: 336-748-9112 Email: rshea@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia A. Piekarski Sara Lee Branded Apparel Law Department 1000 E. Hanes Mill Road Winston-Salem, NC 27105 336-519-5502 TERMINATED: 01/18/2005
Subhash Viswanathan Bond, Schoeneck Law Firm - Syracuse One Lincoln Center Syracuse, NY 13202-1355 315-218-8000 Fax: 315-476-6024 Email: sviswanathan@bsk.com ATTORNEY TO BE NOTICED
represented by Robin E. Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia A. Piekarski (See above for address) TERMINATED: 01/18/2005
Subhash Viswanathan (See above for address) ATTORNEY TO BE NOTICED
represented by Gary L. Fuller Plunkett, Gibson Law Firm Renaissance Plaza 70 N.E. Loop 410 Suite 1100 San Antonio, TX 78216 210-734-7092 Fax: 210-734-0379 Email: fullerg@plunkett-gibson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John T. McCann

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Cross Claimant Sterling Onions, Inc TERMINATED: 10/21/2004
Cross Claimant Zappala Farms, LLC TERMINATED: 10/21/2004
Cross Claimant Zappala Holding Company, LLC TERMINATED: 10/21/2004
Cross Claimant Zappala Enterprises, Inc. TERMINATED: 10/21/2004
Cross Claimant James Zappala TERMINATED: 10/21/2004
V. Cross Defendant International Labor Management Corporation, Inc.

Hancock, Estabrook Law Firm 1500 AXA Tower I Syracuse, NY 13221 315-471-3151 Fax: 315-471-3167 Email: jmccann@hancocklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Subhash Viswanathan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Joseph E. Wallen (See above for address) TERMINATED: 10/21/2004 LEAD ATTORNEY
represented by Robin E. Shea (See above for address)

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Cross Defendant North Carolina Growers' Association, Inc.
Cross Defendant Del-Al Associates, Inc.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Subhash Viswanathan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robin E. Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Subhash Viswanathan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John T. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/23/2002
12/23/2002 12/23/2002
01/27/2003 01/27/2003 02/13/2003

#

Docket Text

1 COMPLAINT filed; FILING FEE $ 150 RECEIPT # 66751 ; Service deadline 2/21/03 for Del-Al Associates, for NC Growers' Assoc, for International Labor, for James Zappala, for Zappala Enterprises, for Zappala Holding, Co., for Zappala Farms, LLC, for Sterling Onions, Inc (jt) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 12/26/2002)

SUMMONS(ES) issued for Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises, James Zappala, International Labor, NC Growers' Assoc, Del-Al Associates (jt) (Entered: 12/26/2002)

General Order 25 Filing Order Issued; Conference set before Magistrate Judge Gary L. Sharpe in Syracuse, Status Conference at 10:30 3/18/03 , Deadline for filing Case Management Plan, 3/8/03 , ADR Track Case. (jt) (Entered: 12/26/2002)

2 WAIVER OF SERVICE Returned Executed as to International Labor 1/13/03 Answer due on 3/14/03 for International; Signed by W.R. Loftis (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 01/27/2003)

3 WAIVER OF SERVICE Returned Executed as to NC Growers' Assoc 1/13/03 Answer due on 3/14/03 for NC Growers' Assoc; Signed by W.R. Loftis (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 01/27/2003)

4 SUMMONS Returned Executed; A Copy of the summons and complaint were

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02/18/2003 02/19/2003 02/20/2003 03/03/2003
03/14/2003
03/14/2003 03/14/2003 03/28/2003 04/01/2003
04/03/2003 04/03/2003

served personally upon Jeff Warner, a registered agent to accept service for DelAl Associates on 1/30/03 : Answer due on 2/19/03 for Del-Al Associates (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 02/13/2003)
5 WAIVER OF SERVICE Returned Executed as to Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises, James Zappala 1/13/03 Answer due on 3/14/03 (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 02/18/2003)
6 ANSWER to Complaint by Del-Al Associates (Attorney John T. McCann),; jury demand (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 02/19/2003)
7 LETTER dd 2/19/03 by Wendy R. Weiser, Esq for pltf Marcela Olvera-Morales requesting to adjourn the Rule 16 conference from 3/18/03 to 4/22/03. (jlm) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/02/2003)
8 Scheduling Notice by CRD McNicholas: reset Filing Order Deadlines: Conference set before Magistrate Judge Gary L. Sharpe in Syracuse, NY, Status Conference at 11:30 am on 4/22/03 by telephone; Pltf's atty. to initiate conference call, Deadline for filing Case Management Plan 4/11/03 (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/03/2003)
9 ANSWER to complaint and CROSSCLAIM by Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises, James Zappala (Attorney Joseph E. Wallen) against International Labor, NC Growers' Assoc, Del-Al Associates (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/14/2003)
10 NOTICE/Disclosure Statement on behalf of Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises, James Zappala (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/14/2003)
11 ANSWER to Complaint by International Labor, NC Growers' Assoc (Attorney Virginia A. Piekarski) (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/14/2003)
12 ANSWER by International Labor, NC Growers' Assoc to [9-2] cross claim of Defts. Sterling Onions' and Zappala Enterprises. (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 03/28/2003)
13 Scheduling Notice by CRD McNicholas: confirm Filing Order Deadlines: Conference set before Magistrate Judge Gary L. Sharpe by telephone, Status Conference at 11:30 am on 4/22/03, Pltf's atty. to initiate call; Deadline for filing Case Management Plan 4/11/03 (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 04/03/2003)
14 Amended CERTIFICATE OF SERVICE by International Labor, NC Growers' Assoc regarding Answer. (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 04/03/2003)
15 Amended CERTIFICATE OF SERVICE by International Labor, NC Growers' Assoc regarding Answer to Defts. Sterling Onions and Zappala Ent. crossclaim. (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered:

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04/15/2003 04/22/2003
05/06/2003 06/18/2003 08/06/2003

04/03/2003)
16 Proposed Joint Civil Case Management Plan Submitted. (lmp) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 04/15/2003)
17 MINUTE ENTRY of Rule 16 Conference before MJ Sharpe: APP: Wendy Weiser, Esq., Daniel Wener, Esq. for Pltfs., Joseph Wallen, Esq., Virginia Piekarski, Esq., John T. McCann, Esq. and Gary Fuller, Esq. for Defts. - Parties discuss completing written discovery and depositions last; Atty Weiser for the pltf suggests that 30(b)(6) depositions may need to be done of 3 witness along with written discovery; Judge Sharpe opts case out of ADR; Judge Sharpe orders document requests and interrogatories to be served by 5/6/03; Reply to requests and interrogatories due 7/7/03; Atty Loftis and atty Fuller state they may want to file a motion to dismiss pursuant to 12(b)(6) after written discovery is completed; Atty Weiser states she may need to conduct Rule 30(b)(6) depositions to respond to the motions to dismiss; Judge Sharpe will not issue a pretrial scheduling order until after the motions have been decided by Judge Mordue; Judge Sharpe sets the motion deadlines. Dispositive motions to be filed by 8/7/03; Response to motions due 9/8/03; Reply to motion due 9/22/03; Motions shall be made returnable before Judge Mordue with a 10/22/03 return date. Judge Sharpe orders no Rule 30 (b)(6) depositions are to be taken at this time, and he will entertain additional discovery if the need arises to respond to the motion at the request of parties; Rule 16 conference to be scheduled after the decisions of the motions. (Courtroom Clerk: Judi L. McNicholas) (dmf) (Entered: 05/07/2003)
18 LETTER ORDER dtd 4/24/03 by MJ Sharpe: pursuant to telephone conference held on 4/22/03; All written discovery to be completed on or before 7/7/03 ; Requests to be served by 5/6/03 and Responses to be completed by 7/7/03; Dispositive Motions to be filed on or before 8/7/03 ; Motion response papers to be filed on or before 9/8/03; Motion reply papers to be filed on or before 9/22/03; Dispositive Motion(s) are to be made returnable on 10/22/03 before District Judge Norman A. Mordue. (signed by Magistrate Judge L. Sharpe) Date Entered: 4/24/03 (dmf) Modified on 05/12/2003 (Entered: 05/07/2003)
19 LETTER REQUEST dtd 6/16/03 by John T. McCann, Esq. and ORDER, Defts. have consented to a limited extension of the discovery deadline in this action, to allow pltfs. to serve written interrogatories on or before 6/13/03. Defts' deadline for responses/objections to the interrogatories would be extended to 8/13/03. This would result in limited changes to the dispositive motion deadlines: motion filed, 8/7/03; motion response papers, 9/16/03; motion reply papers, 9/30/03 and motion return date 10/22/03; granted. (signed by Magistrate Judge Gary L. Sharpe dtd 6/18/03) (dmf) (Entered: 06/23/2003)
20 MOTION by Joseph E. Wallen, Esq., on behalf of James Zappala, Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises for Summary Judgment ; with exhibit A attached; Hearing set for 10/15/03 at 10:00 A.M. in Syracuse; Motion returnable before Judge Mordue (Pursuant to Mag. Sharpe's letter order dtd 5/6/03 all dispositive motions are exempt from 7.1 (b)(1) package rule and each party shall file their own papers with the Court.) (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)

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08/06/2003 08/06/2003 08/06/2003 08/06/2003
08/07/2003 08/07/2003 08/07/2003 08/07/2003 08/07/2003 08/14/2003

21 AFFIDAVIT: by Joseph E. Wallen, Esq., on behalf of James Zappala, Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises in support of [20-1] motion for Summary Judgment; w/attached exhibits A through J (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
22 Statement of Material Facts in Support of [20-1] motion for Summary Judgment filed by James Zappala, Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
23 MEMORANDUM OF LAW: by Joseph E. Wallen, Esq., on behalf of James Zappala, Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises in support of [20-1] motion for Summary Judgment (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
24 CERTIFICATE OF SERVICE: by Joseph E. Wallen, Esq., on behalf of James Zappala, Sterling Onions, Inc, Zappala Farms, LLC, Zappala Holding, Co., Zappala Enterprises Re: Service of Notice of Motion, Affidavits, Statement of Material and Undisputed Fact and Memo of Law on Daniel Werner, Esq. Wendy R. Weiser, Esq., W.R. Loftis, Esq, Gary Fuller, Esq. and John T. McCann, Esq. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
25 MOTION by W.R. Loftis, Jr., Esq. and Virginia A. Piekarski, Esq., on behalf of NC Growers' Assoc, and International Labor for Summary Judgment , Hearing set for 10/15/03 at 10:00 A.M. in Syracuse before Judge Mordue. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
26 AFFIDAVIT: of C. Stan Eury, President of International Labor Management Corp. in support of [25-1] motion for Summary Judgment. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
27 AFFIDAVIT: by Virginia A. Piekarski, Esq. on behalf of NC Growers' Assoc and International Labor in support of [25-1] motion for Summary Judgment; with attached exhibits 1 through 4. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
28 Statement of Material Facts in Support of [25-1] motion for Summary Judgment filed by NC Growers' Assoc. and International Labor (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
29 MEMORANDUM OF LAW: by W.R. Loftis, Esq. and Virgina A. Piekarski, Esq. on behalf of NC Growers' Assoc. and International Labor in support of [251] motion for Summary Judgment; with attached exhibits 1 through 6. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/11/2003)
30 MOTION by Gary Fuller, Esq. for deft. Del-Al Associates to Dismiss and for Summary Judgment , Hearing set for 10/15/03; Response Deadline 10/1/03, Reply to Response Deadline 10/8/03; Motion returnable before District Judge Mordue Mordue (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/14/2003)

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31 MEMORANDUM OF LAW by Gary Fuller, Esq. for deft. Del-Al Associates in support of [30-1] motion to Dismiss and for Summary Judgment; Attached Exhibits 1-5 (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/14/2003)
32 Statement of Material Facts in Support of [30-1] motion to Dismiss and for Summary Judgment filed by Gary Hall, Esq. for deft. Del-Al Associates (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/14/2003)
33 AFFIDAVIT of Gary Fuller, Esq. for deft. Del-Al Associates Re: support of the [30-1] motion to Dismiss and for Summary Judgment; Attached Exhibits 1-7 (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/14/2003)
34 AFFIDAVIT of Jorge Del Alamo for deft. Del-Al Associates Re: support of the [30-1] motion to Dismiss and for Summary Judgment (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 08/14/2003)
35 MEMORANDUM OF LAW by Virginia A. Piekarski, Esq. on behalf of NC Growers' Assoc. and International Labor in OPPOSITION to [30-1] motion to Dismiss and for Summary Judgment; w/exhibit 1 attached. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 09/16/2003)
36 CERTIFICATE OF SERVICE: by Virginia A. Piekarski, Esq. on behalf of International Labor Mgmt. and NC Growers' Assoc., Re: service of a copy of the Memo of Law in Opposition to Defts' Motion for Summary Judgment upon the plaintiffs on 9/15/03. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 09/16/2003)
37 Scheduling Notice; Letter advising counsel for parties that the Court has taken the [30-1] motion to Dismiss the [25-1] motion for Summary Judgment and the [20-1] motion for Summary Judgment on submit for 10/15/03 before Judge Mordue; Parties need not appear for oral argument on that date; Notice sent by KCL (kcl) Additional attachment(s) added on 6/17/2005 (lmp, ). Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 09/18/2003)
38 LETTER REQUEST & ORDER: dated 9/22/03 by Daniel Werner, requesting a modification of the briefing scheduled on the defts' motion for summary judgment, request granted, plaintiff's will file their opposition papers on 10/3/03, defts' will file their reply papers on or about 10/17/03, the motion would therefore be returnable before Judge Mordue on 11/5/03. (Signed by Magistrate Judge Gary L. Sharpe) (jmb) (Entered: 10/02/2003)
39 LETTER REQUEST & ORDER: dated 9/26/03 by Daniel Werner, requesting a modification of the briefing scheduled on the defts' motion for summary judgment, request granted, plaintiff's will file their opposition papers on 10/24/03, defts' will file their reply papers on or about 11/7/03, the motion would therefore be returnable before Judge Mordue on 12/3/03. (Signed by Magistrate Judge Gary L. Sharpe) (jmb) Modified on 10/06/2003 (Entered: 10/06/2003)
40 LETTER REQUEST & ORDER: dated 10/21/03 by Daniel Werner, Esq., requesting leave to file a memorandum of law in excess of the 25 page limit, but not to exceed 45 pages, request granted. (Signed by Judge Norman A. Mordue)

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10/27/2003 10/27/2003 10/27/2003 10/27/2003 11/03/2003 11/13/2003 11/14/2003 11/14/2003 11/14/2003 11/21/2003

(jmb) (Entered: 10/30/2003)
41 PLTF'S RESPONSE TO DEFT DEL-AL'S STATEMENT OF MATERIAL FACTS by Marcela Olvera-Morales to [30-1] motion to Dismiss and for Summary Judgment (jt) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 10/30/2003)
42 PLTF'S RESPONSE TO ILMC AND NCGA'S STATEMENT OF MATERIAL FACTS by Marcela Olvera-Morales to [25-1] motion for Summary Judgment (jt) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 10/30/2003)
43 MEMORANDUM by Marcela Olvera-Morales in opposition to [30-1] motion to Dismiss and for Summary Judgment, [25-1] motion for Summary Judgment (jt) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 10/30/2003)
44 DECLARATION OF D. WERNER AND STATEMENT PURSUANT TO RULE 56(f) by Marcela Olvera-Morales Re: [30-1] motion to Dismiss and for Summary Judgment, [25-1] motion for Summary Judgment (jt) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 10/30/2003)
45 Change of Address received for Gary L. Fuller, Esq. Effective date: 11/3/03 for Del-Al Associates, defendant; New Address: Plunkett & Gibson, Inc., 70 N.E. Loop 410, Suite 1100, San Antonio, Texas 78216; Telephone No. (210)7347092 and Fax No. (210)734-0379 (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/10/2003)
46 LETTER REQUEST and ORDER: dtd 11/6/03 by Gary L. Fuller, Esq. requesting to file its Reply to Plaintiffs' Memo of Law by 11/21/03; request granted. Motion is Returnable 12/17/03 and will be taken on submit. No appearances unless notified by Judge Mordue. (signed by Magistrate Judge Gary L. Sharpe ) (dmf) (Entered: 11/15/2003)
47 REPLY MEMORANDUM OF LAW: by W.R. Loftis, Jr., Esq. and Subhash Viswananthan, Esq. on behalf of Del-Al Associates and NC Growers' Assoc. in response to [30-1] motion to Dismiss and for Summary Judgment; with certificate of service attached. (dmf) Modified on 11/22/2003 Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/19/2003)
48 SUPPLEMENTAL AFFIDAVIT: of C. Standford Eury, Esq. on behalf of DelAl Associates and NC Growers' Assoc Re: further support; with attached exhibits A through E. (dmf) Modified on 11/22/2003 Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/19/2003)
49 NOTICE OF ATTORNEY APPEARANCE: by Subhash Viswanathan, Esq. on behalf of NC Growers' Assoc. and International Labor. (dmf) Modified on 11/22/2003 Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/19/2003)
50 REPLY MEMEORANDUM OF LAW: by Gary L. Fuller, Esq. and John T. McCann, Esq. on behalf of Del-Al Associates in further support of [30-1] motion to Dismiss and for Summary Judgment; with certificate of service attached. (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/24/2003)

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11/21/2003 02/24/2004 02/27/2004
03/08/2004
03/19/2004
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51 SUPPLEMENTAL AFFIDAVIT: of Jorge Del Alamo on behalf of Del-Al Associates in further support of [30-1] motion to Dismiss and for Summary Judgment (dmf) Additional attachment(s) added on 6/17/2005 (lmp, ). (Entered: 11/24/2003)
53 ORDER REASSIGNING CASE. Case reassigned to Judge David E. Peebles for all further proceedings. Judge Gary Sharpe no longer assigned to case as a Magistrate. Signed by Judge Frederick J. Scullin Jr. on 2/24/04. (jlm) (Entered: 03/01/2004)
52 Letter from Judge Mordue to counsel; Upon reviewing the record the Court requires the following language clarified before it can render its decision. Pltfs' memorandum of law in opposition to the motions to dismiss and the motions for summary judgment of defts ILMC, NCGA, and Del-Al, footnote 1. Further, in light of such acceptance, the Court requires a clarafication as to the continuation of the Zappala entities' cross-complaint submitted against ILMC. Signed by Judge Mordue on 2/27/04. (jlm) (Entered: 03/01/2004)
54 Letter from Robin E. Shea, Esq for defts ILMC and NCGA responding to Judge Mordue's 52 2/27/04 Letter Order. Atty states it is their understanding that the named pltf did accept an Offer of Judgment on the part of the Zappala entities, so her claims against them are no longer pending. The Zappala entities' crosscomplaint, as well as a motion for SJ, against defts ILMC and NCGA are still pending. (jlm) (Entered: 03/11/2004)
55 RESPONSE filed pursuant to the 52 LETTER Order of Judge Mordue filed by Joseph Wallen, Esq for the "Zappala" defts and in agreement to the 52 Letter by Robin Shea's stating it is their understanding that the named pltf did accept an Offer of Judgment on the part of the Zappala entities, so her claims against them are no longer pending. The Zappala entities' cross-complaint, as well as a motion for SJ, against defts ILMC and NCGA are still pending (jlm) (Entered: 03/19/2004)
56 Letter from Gary L. Fuller, Esq. re vacation schedule. (lmp) (Entered: 05/12/2004)
57 ORDER denying the 20 Motion for Summary Judgment, denying the 25 Motion for Summary Judgment, and denying the 30 Motion to Dismiss. Signed by Judge Norman A. Mordue on 6/1/04. (jlm) (Entered: 06/02/2004)
58 NOTICE of Appearance by Jennifer Kay Brown on behalf of all plaintiffs (jlm) (Entered: 06/28/2004)
59 NOTICE OF SUBSTITUTION OF COUNSEL. 58 Notice of Appearance filed by Marcela Olvera-Morales, Attorney Jennifer Kay Brown for Marcela OlveraMorales added. Attorney Wendy R. Weiser terminated. (jlm) Additional attachment(s) added on 10/14/2004 (kcl, ). (Entered: 07/06/2004)
60 NOTICE by Del-Al Associates, Inc. Gary L Fuller will be on vacation from Monday, July 19, 2004 through Friday, July 23, 2004. (Fuller, Gary) (Entered: 07/13/2004)
61 MOTION for Limited Admission Pro Hac Vice of Timothy Casey by Marcela

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10/22/2004 10/22/2004

Olvera-Morales.(lmp) (Entered: 07/26/2004)
62 ORDER granting 61 Motion for Limited Admission Pro Hac Vice of Timothy Casey, Esq. Signed by Judge Norman A. Mordue on 7/27/04. (lmp) (Entered: 07/28/2004)
63 G.O. 25 FILING ORDER ISSUED Initial Conference set for 10/21/2004 11:30 AM in Syracuse before Magistrate Judge David E. Peebles. Civil Case Management Plan due by 10/12/2004. (kcl, ) (Entered: 08/10/2004)
64 NOTICE of Appearance by Rachel H. Yarkon on behalf of Marcela OlveraMorales (Yarkon, Rachel) (Entered: 10/13/2004)
65 NOTICE of Appearance by Neil S. Kaufman on behalf of Marcela OlveraMorales (Kaufman, Neil) (Entered: 10/13/2004)
66 CIVIL CASE MANAGEMENT PLAN by International Labor Management Corporation, Inc., North Carolina Growers' Association, Inc.. (Viswanathan, Subhash) (Entered: 10/15/2004)
67 Minute Entry for proceedings held before Judge David E. Peebles : Initial Pretrial Conference held on 10/21/2004. Parties agree that there are no longer any cross-claims pending regarding the Zappala entities and Sterling Onion. Judge advises that the Zappala entities and Sterling Onion will be terminated from the court's docket as defendants in this lawsuit. Del-Al has presented a settlement offer to plaintiffs' counsel and settlement negotiations are ongoing. Del-Al is located in Virginia and ILMC is located in the MDNC. Parties discuss if this case should remain in this district. Plaintiffs' counsel states that they would oppose any motion to change venue. Initial disclosures have been exchanged and some discovery has been done regarding the previous motion for summary judgment that was filed. Plaintiffs' counsel advises that they will need supplemental discovery and requests additional interrogatories and depositions over the 25 interrog. & 10 depo. allowed by the court. Judge directs the parties to work on discovery and try to work this out. If they cannot, the parties are to request court intervention. Plaintiff currently resides in Mexico and does not speak English. Parties are working on holding plaintiff's deposition somewhere close to the border, since plaintiff may not have a visa to come into the U.S. for the deposition. Judge sets motions for class certification ddl. to 8/1/05. Joinder & amendment ddls. are set for 6/30/05, discovery ddl. is set for 10/31/05, and motion filing ddl. is set for 1/31/06. Jury trial is expected to last 10 days in Syracuse. Next telephone conference is set for 2/4/05 at 3:00 p.m.. Plaintiff's counsel is to initiate the call. (sal, ) (Entered: 10/22/2004)
TEXT NOTICE of Hearing: Status Telephone Conference set for 2/4/2005 at 3:00 PM before Magistrate Judge David E. Peebles. Counsel for the parties are instructed to confer with each other at least one (1) week prior to the date of the conference to confirm their availability, and plaintiff's attorney, is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620.(sal, ) (Entered: 10/22/2004)
68 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 10 days Jury Trial. Preferred Trial Location: Syracuse, NY. Joinder of Parties due by 6/30/2005. Amended Pleadings due by 6/30/2005. Discovery due by

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11/03/2004 12/20/2004
12/20/2004 12/20/2004 01/10/2005 01/10/2005
01/18/2005 02/04/2005

10/31/2005. Motions to be filed by 1/31/2006. Parties opt out of ADR program. Signed by Judge David E. Peebles on 10/22/04. [copies mailed to parties not served electronically](lmp) (Entered: 10/22/2004)
69 NOTICE of Appearance by Andrea S. Christensen on behalf of all plaintiffs (Christensen, Andrea) (Entered: 11/03/2004)
70 MOTION to Transfer Case including Certificate of Service Motion Hearing set for 2/2/2005 10:00 AM in Syracuse before Judge Norman A. Mordue. Response to Motion due by 1/18/2005 Reply to Response to Motion due by 1/24/2005. by International Labor Management Corporation, Inc.. (Attachments: # 1 Brief of Defendants ILMC and NCGA in Support of Motion to Transfer, including Exhibit A (2) Affidavit of C. Stanford Eury in Support of Motion to Transfer, including Exhibit A and B# 3 Affidavit of Christina Tucker in Support of Motion to Transfer, including Exhibit A and B)(Viswanathan, Subhash) (Entered: 12/20/2004)
71 MOTION to Transfer Case by Del-Al Associates, Inc.. (Attachments: # 1 Memorandum of Law # 2 Affidavit of Jorge Del Alamo# 3 Certificate of Service# 4 Letter to Clerk)(Fuller, Gary) (Entered: 12/20/2004)
TEXT ONLY NOTICE of Hearing on Motion; Clerk advises parties that the 70MOTION to Transfer Case and 71 MOTION to Transfer Case have been taken on submit for 2/2/05, parties need not appear for oral argument on that date; Response to Motion due by 1/18/2005, Reply to Response to Motion due by 1/24/2005. (kcl, ) (Entered: 12/20/2004)
72 STIPULATION re 70 MOTION to Transfer Case including Certificate of Service, 71 MOTION to Transfer Case by International Labor Management Corporation, Inc.. (Viswanathan, Subhash) (Entered: 01/10/2005)
73 ORDER approving 72 Stipulation filed by International Labor Management Corporation, Inc., Setting Hearing on Motion 70 MOTION to Transfer Case and 71 MOTION to Transfer Case: Response to Motion due by 2/18/2005. Reply to Response to Motion due by 2/28/2005. Motion Hearing set for 3/2/2005 10:00 AM in Syracuse before Judge Norman A. Mordue. Signed by Judge Norman A. Mordue on 1/10/05. [copies mailed to parties not served electronically](lmp) (Entered: 01/11/2005)
74 Letter from W.R. Loftis, Jr., advising Atty. Piekarski no longer appears for Defts. North Carolina Growers Assn. & International Labor Management Corp. in this case. (lmp) (Entered: 01/18/2005)
Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 2/4/2005. Plaintiff's counsel states that it would be ineffective to transfer this case to another jurisdiction, since the parties are well into the discovery phase. Plaintiff's counsel also states that they prefer that the case stay in this district since it is more familiar w/ this case. Plaintiff does not have the proper documentation to enter the United States legally. Judge suggests to parties that maybe plaintiff's deposition can be taken by video and then supplemented in-person right before the trial. Parties cannot agree on a date, time and location for plaintiff's deposition. Judge sets up a briefing schedule. Defendant?s letter brief is due by 2/18/05, plaintiff's letter brief id due 3/4/05

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02/04/2005
02/14/2005 02/17/2005 02/18/2005 02/18/2005 02/28/2005 03/08/2005
03/18/2005 03/21/2005 03/22/2005 03/28/2005 03/28/2005

(limit of 10 pages). Judge will thereafter issue an order. Next telephone conference is scheduled for 5/2/05 at 3:30 p.m.. Atty. Loftus is to initiate the call to Chambers. (sal, ) (Entered: 02/04/2005)
TEXT NOTICE of Hearing: Status Telephone Conference set for 5/2/2005 at 3:30 PM before Magistrate Judge David E. Peebles. Counsel for the parties are instructed to confer with each other at least one (1) week prior to the date of the conference to confirm their availability, and Atty. Rnady Loftus is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620. (sal, ) (Entered: 02/04/2005)
75 Letter from Gary L. Fuller for Del-Al Associates, Inc. requesting Vacation from Monday, March 14, 2005 to Friday, March 18, 2005. (Fuller, Gary) (Entered: 02/14/2005)
76 LETTER BRIEF by Marcela Olvera-Morales. (Kaufman, Neil) (Entered: 02/17/2005)
77 MEMORANDUM OF LAW re 71 Motion to Transfer Case filed by Marcela Olvera-Morales. (Attachments: # 1 Appendix 1# 2 Appendix 2# 3 Appendix 3# 4 Appendix 4# 5 Appendix 5)(Kaufman, Neil) (Entered: 02/18/2005)
78 AFFIDAVIT in Opposition re 71 MOTION to Transfer Case DECLARATION OF DANIEL WERNER, ESQ. filed by Marcela Olvera-Morales. (Kaufman, Neil) (Entered: 02/18/2005)
79 STIPULATION extending time to serve and file reply papers by International Labor Management Corporation, Inc.. (Viswanathan, Subhash) (Entered: 02/28/2005)
TEXT ORDER Setting Hearing on Motion 70 MOTION to Transfer Case including Certificate of Service, 71 MOTION to Transfer Case: Reply to Response to Motion due by 3/28/2005. Motion Hearing set for 4/6/2005 before Judge Norman A. Mordue. The will be No Oral Argument. Papers will be taken on submission; therefore, no appearances are necessary. Endorsed by Judge Norman A. Mordue on 3/8/05. (jlm) (Entered: 03/08/2005)
80 MOTION for Limited Admission Pro Hac Vice of Subhash Viswanathan on behalf of Robin Elizabeth Shea by International Labor Management Corporation, Inc.. (Attachments: # 1 # 2 # 3 # 4 # 5)(Viswanathan, Subhash) (Entered: 03/18/2005)
Pro Hac Vice Filing fee for Robin Elizabeth Shea: $ 30.00, receipt number SYR2202 (alh) (Entered: 03/21/2005)
81 ORDER granting 80 Motion for Limited Admission Pro Hac Vice of Robin E. Shea for Defts. Signed by Judge David E. Peebles on 3/22/05. [copies mailed to parties not served electronically] (lmp) (Entered: 03/22/2005)
82 MEMORANDUM OF LAW re 77 Memorandum of Law (REPLY) filed by International Labor Management Corporation, Inc.. (Attachments: # 1 Affidavit) (Viswanathan, Subhash) (Entered: 03/28/2005)
83 MEMORANDUM OF LAW Reply Brief filed by Del-Al Associates, Inc..

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04/05/2005 04/06/2005 04/11/2005 04/25/2005 04/26/2005
04/29/2005
05/11/2005 05/13/2005 05/17/2005 05/20/2005

(Fuller, Gary) (Entered: 03/28/2005)
84 Letter from Neil S. Kaufman for Marcela Olvera-Morales requesting the Court grant Plaintiffs' permission to file a short sur-reply. (Kaufman, Neil) (Entered: 04/05/2005)
85 Letter from Robin E. Shea for International Labor Management Corporation, Inc. requesting Denial of Plaintiffs' Request to File Surreply. (Viswanathan, Subhash) (Entered: 04/06/2005)
TEXT ORDER Denying the 84 Letter Request to file a sur-reply filed by Neil S. Kaufman, Esq for Marcela Olvera-Morales. Endorsed by Law Clerk to Judge Norman A. Mordue on 4/11/05. (jlm/am) (Entered: 04/11/2005)
Motions No Longer Referred to Judge Peebles: 70 MOTION to Transfer Case including Certificate of Service, 71 MOTION to Transfer Case. These motions were showing up on Judge Peebles CJRA report. (sal, ) (Entered: 04/25/2005)
86 Viswanathan Letter for International Labor Management Corporation, Inc. requesting Informing Judge Peebles of telephone number and conference call code for May 2 Status Conference. (Viswanathan, Subhash) (Entered: 04/26/2005)
Due to a conflict in Judge Peebles' calendar the scheduled telephone conference in this matter for May 2, 2005 at 3:30 pm has been cancelled. The new date and time for the telephone conference is May 19, 2005 at 3:30 pm (Atty. Viswanathan is to initiate the call). (cam, ) (Entered: 04/29/2005)
87 Letter from Gary L. Fuller for Del-Al Associates, Inc. requesting Vacation from Friday, June 3, 2005 through Monday, June 13, 2005 and Friday, July 1, 2005 through Monday, July 11, 2005. (Fuller, Gary) (Entered: 05/11/2005)
88 Letter from Suba Viswanathan for International Labor Management Corporation, Inc. notifying Judge Peebles of telephone number and conference call code for May 19 Status Conference. (Viswanathan, Subhash) (Entered: 05/13/2005)
89 NOTICE of Appearance by Andrew D. Stillufsen on behalf of Marcela OlveraMorales (Stillufsen, Andrew) (Entered: 05/17/2005)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 5/20/2005. Plaintiff has applied for a visa and parties are to determine whether or not she will be able to appear in the U.S. for deposition or if counsel may have to go to Mexico to complete it. Judge directs the parties to work this issue out and supply the court w/ a proposed notice, which will include the date(s) and location for plaintiff's deposition. Judge will then "so order" this notice. Counsel does not believe this deposition will take place until the end of August. Judge extends discovery deadline to 3/31/06 and motion filing deadline to 5/31/06. This is a FINAL extension of the deadlines, since this case has not progressed at all in the last 7 months. Plaintiff's counsel states he may be moving to amend the complaint to add plaintiff's. Judge reminds plaintiff's counsel of joinder and amendment ddls., which are 6/30/05. Next telephone conf. is scheduled for 9/21/05 at 3:00 pm. Plaintiff's counsel, Daniel Werner, Esq., is to initiate the call. APP: Daniel Werner, Andrew Stillufsen, Jennifer Kay Brown -

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05/20/2005
05/20/2005
05/20/2005 05/23/2005 05/23/2005
06/14/2005 06/15/2005 06/17/2005 06/17/2005

attys. for Pltf., and Gary Fuller, W.R. Loftus - attys. for Defts.. (sal, ) Modified on 5/23/2005 (sal, ). (Entered: 05/20/2005)
TEXT NOTICE of Hearing: Status Telephone Conference set for 9/21/2005 at 3:00 PM before Magistrate Judge David E. Peebles. Counsel for the parties are instructed to confer with each other at least one (1) week prior to the date of the conference to confirm their availability, and plaintiff's attorney, Daniel Werner, Esq., is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234-8620.(sal, ) (Entered: 05/20/2005)
TEXT SCHEDULING ORDER: Discovery deadline is extended until 3/31/2005. Motions to be filed deadline is extended until 5/31/2005. If no dispositive motions are filed, the Trial Ready Deadline is 8/1/2005. If a dispositive motion is filed, then the Trial Ready Deadline is 60 days after that motion has been decided. Endorsed by Judge David E. Peebles on 5/20/05. (sal, ) (Entered: 05/20/2005)
90 AFFIDAVIT of Service for Notice of Appearance of Andrew Davin Stillufsen by First Class Mail served on Constangy Brooks Law Firm - Winston Salem Office on May 17, 2005, filed by Marcela Olvera-Morales. (Stillufsen, Andrew) (Entered: 05/20/2005)
CLERK'S CORRECTION OF DOCKET - Atty. Neil Kaufman removed from docket as atty. for Pltf. pursuant to 5/17/05 letter of Cassandra Porter, Esq., Kaye Scholer LLP. (lmp) (Entered: 05/23/2005)
AMENDED TEXT SCHEDULING ORDER: Joinder and amendment deadlines remain the same, which are 6/30/05. Discovery deadline is 3/31/2006. Motions to be filed deadline is 5/31/2006. If no dispositive motion is filed, the Trial Ready Deadline is 8/1/2006. If a dispositive motion is filed, then the Trial Ready Deadline is 60 days after that motion has been decided. This is a FINAL extension of these deadlines. Endorsed by Judge David E. Peebles on 5/23/05. (sal, ) (Entered: 05/23/2005)
91 LETTER BRIEF re: request for discovery conference by Marcela OlveraMorales. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) C# 4 Exhibit(s) D# 5 Exhibit(s) E# 6 Exhibit(s) F# 7 Exhibit(s) G# 8 Exhibit(s) H) (Stillufsen, Andrew) (Entered: 06/14/2005)
92 ORDER granting 70 Motion to Transfer Case, and granting 71 Motion to Transfer Case to Middle District of North Carolina. Signed by Judge Norman A. Mordue on 6/15/05.[copies mailed to parties not served electronically] (lmp) (Entered: 06/16/2005)
93 Letter from W.R. Loftis, Jr. for International Labor Management Corporation, Inc. requesting if Local Rule 71(d)(3) is now moot submitted to Judge David E. Peebles. (Viswanathan, Subhash) (Entered: 06/17/2005)
Case transferred to District of Middle District of North Carolina. Certified copy of transfer order and docket sheet sent. MDNC to access documents electronically for transfer. (lmp) (Entered: 06/17/2005)

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06/24/2005 06/24/2005
06/24/2005 06/27/2005 07/18/2005 07/25/2005 07/25/2005
07/25/2005 07/27/2005 08/01/2005 08/04/2005

94 NOTICE by Marcela Olvera-Morales Notice of Appearance of Andrew Keith Solow, Esq. (Stillufsen, Andrew) (Entered: 06/24/2005)
95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, Motion Hearing set for 8/3/2005 10:00 AM in Syracuse before Judge Norman A. Mordue. Response to Motion due by 7/18/2005 Reply to Response to Motion due by 7/25/2005. by Marcela Olvera-Morales. (Attachments: # 1 Declaration of Andrew K. Solow, Esq. in Support of Plaintiff's Motion for Reconsideration# 2 Exhibit(s) A# 3 Exhibit(s) B# 4 Exhibit(s) C# 5 Exhibit(s) D# 6 Memorandum of Law in Support of Motion for Reconsideration of Order Granting Motion to Transfer Case to the Middle District of North Carolina)(Stillufsen, Andrew) (Entered: 06/24/2005)
96 CERTIFICATE OF SERVICE by Marcela Olvera-Morales re 94 Notice (Other), 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, (Stillufsen, Andrew) (Entered: 06/24/2005)
TEXT ONLY NOTICE BY CLERK; Parties are advised that the 95 MOTION for Reconsideration of the 92 Order on Motion to Transfer Case has been taken on submit for 8/3/05 before Judge Mordue; Parties need not appear for oral argument on that date (kcl, ) (Entered: 06/27/2005)
97 RESPONSE in Opposition re 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, filed by International Labor Management Corporation, Inc.. (Attachments: # 1 Affidavit of Jorge Del Alamo, Sr.)(Viswanathan, Subhash) (Entered: 07/18/2005)
98 REPLY to Response to Motion re 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, to the Middle District of North Carolina filed by Marcela Olvera-Morales. (Solow, Andrew) (Entered: 07/25/2005)
99 AFFIDAVIT in Support re 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, DECLARATION OF ANDREW K. SOLOW, ESQ. IN FURTHER SUPPORT OF PLAINTIFF'S MOTION FOR RECONSIDERATION filed by Marcela Olvera-Morales. (Attachments: # 1 Exhibit(s) 1# 2 Exhibit(s) 2# 3 Exhibit(s) 3# 4 Exhibit(s) 4# 5 Exhibit(s) 5# 6 Exhibit(s) 6# 7 Exhibit(s) 7# 8 Exhibit(s) 8# 9 Exhibit(s) 9)(Solow, Andrew) (Entered: 07/25/2005)
100 CERTIFICATE OF SERVICE by Marcela Olvera-Morales re 98 Reply to Response to Motion, 99 Affidavit in Support of Motion, (Solow, Andrew) (Entered: 07/25/2005)
101 Letter from Robin E. Shea for International Labor Management Corporation, Inc. requesting Leave to file a Surreply in connection with Plaintiff's Motion to Reconsider submitted to Judge Norman A. Mordue. (Viswanathan, Subhash) (Entered: 07/27/2005)
TEXT ORDER Granting the 101 Letter Request filed by International Labor Management Corporation, Inc to file a Sur-Reply in connection with the plaintiff's motion to reconsider. Endorsed by Judge Norman A. Mordue on 8/1/05. (jlm/am) (Entered: 08/01/2005)
102 REPLY to Response to Motion re 95 MOTION for Reconsideration re 92 Order

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09/12/2005 10/26/2005 10/31/2005 11/17/2005
12/19/2005 12/19/2005
12/19/2005 12/20/2005
12/20/2005

on Motion to Transfer Case,, 70 MOTION to Transfer Case including Certificate of Service, 71 MOTION to Transfer Case filed by International Labor Management Corporation, Inc.. (Viswanathan, Subhash) (Entered: 08/04/2005)
NOTICE to counsel from CRD to Judge Peebles. On 6/15/05, this case was closed out and transferred to the Middle District of North Carolina. Thus, the telephone conference scheduled for 9/21/05 at 3:00 PM before Judge Peebles is CANCELED. If this case should survive the pending motion for reconsideration, another telephone conference will be scheduled before Judge Peebles. (sal, ) (Entered: 09/12/2005)
103 STATUS REPORT on behalf of all Defendants by International Labor Management Corporation, Inc.. (Viswanathan, Subhash) (Entered: 10/26/2005)
Motions No Longer Referred: 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case. This motion was showing up on DEP's CJRA report. This motion is currently pending before NAM. (sal, ) (Entered: 10/31/2005)
104 MEMORANDUM-DECISION AND ORDER amending 92 Order on Motion to Transfer Case to correct clerical error; as to 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case filed by Marcela Olvera-Morales, Pltf. has 30 days to file any further submissions and Defts. may file responses thereto within 14 days thereafter. Signed by Judge Norman A. Mordue on 11/17/05. (copies mailed to parties not served electronically and to Clerk, MDNC, per order)(lmp) (Entered: 11/17/2005)
105 MEMORANDUM OF LAW re 104 Order, -- Plaintiff's Supplemental Memorandum of Law In Opposition to Motion to Transfer Case to the Middle District of North Carolina filed by Marcela Olvera-Morales. (Stillufsen, Andrew) (Entered: 12/19/2005)
106 AFFIDAVIT in Opposition re 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, and re 104 Memorandum - Decision and Order, -DECLARATION OF ANDREW DAVIN STILLUFSEN, ESQ. IN OPPOSITION TO MOTION TO TRANSFER filed by Marcela Olvera-Morales. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) C# 4 Exhibit(s) D# 5 Exhibit(s) E# 6 Exhibit(s) F# 7 Exhibit(s) G# 8 Exhibit(s) H# 9 Exhibit(s) I)(Stillufsen, Andrew) (Entered: 12/19/2005)
107 CERTIFICATE OF SERVICE by Marcela Olvera-Morales re 105 Memorandum of Law, 106 Affidavit in Opposition to Motion, (Stillufsen, Andrew) (Entered: 12/19/2005)
108 Letter Motion from Subhash Viswanthan on behalf of defendants International Labor Management Corporation, Inc., North Carolina Growers' Association, Inc., and Del-Al Associates, Inc. for International Labor Management Corporation, Inc. requesting Extension of time from January 3, 2006 to January 9, 2006 to file a response to plaintiffs' December 19, 2005 submission in opposition to defendants' motion to transfer case to Middle District of North Carolina submitted to Judge Norman A. Mordue. (Viswanathan, Subhash) (Entered: 12/20/2005)
109 ORDER granting 108 Letter Request, 95 MOTION for Reconsideration re 92

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01/09/2006 01/09/2006 04/10/2006 07/02/2007

Order on Motion to Transfer Case: Response to Motion due by 1/9/2006. Signed by Judge Norman A. Mordue on 12/20/05. [copies mailed to parties not served electronically] (lmp) (Entered: 12/21/2005)
110 RESPONSE to Motion re 70 MOTION to Transfer Case including Certificate of Service Del-Al's Response to Plaintiff's Supplemental Memorandum of Law in Opposition to Motion to Transfer Case to the Middle District of North Carolina filed by Del-Al Associates, Inc.. (Attachments: # 1 Exhibit(s) A)(Fuller, Gary) (Entered: 01/09/2006)
111 RESPONSE in Opposition re 95 MOTION for Reconsideration re 92 Order on Motion to Transfer Case, filed by International Labor Management Corporation, Inc.. (Attachments: # 1 Affidavit of Robin elizabeth Shea, Esq. in support of motion to transfer and in opposition to plaintiff's motion to reconsider# 2 Exhibit (s) A through C of Affidavit of Robin Elizabeth Shea in support of motion to transfer and in opposition to plaintiff's motion to reconsider)(Viswanathan, Subhash) (Entered: 01/09/2006)
112 MEMORANDUM-DECISION AND ORDER granting 95 Motion for Reconsideration; Court reaffirms 92 Order on Motion to Transfer Case transferring case to Middle District of North Carolina; Pltf's request that issue be certified for appeal is denied. Signed by Judge Norman A. Mordue on 4/10/06. (copies mailed to parties not served electronically) (lmp) (Entered: 04/10/2006)
Paid 2007 Biennial Fee $30, receipt number 800329. (Fuller, Gary) (Entered: 07/02/2007)

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 18BA,CASREF,CLOSED,MEDIATION,TRIAL
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:05−cv−00559−NCT−PTS

OLVERA−MORALES v. STERLING ONIONS, INC. et al Assigned to: JUDGE N. C. TILLEY, JR Referred to: MAG/JUDGE P. TREVOR SHARP Case in other court: Transfer Case : Northern District Court of
NY, 5:02cv01589 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff

Date Filed: 06/20/2005 Date Terminated: 08/05/2009 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

MARCELA OLVERA−MORALES on behalf of herself and all others similarly situated

represented by ANDREA S. CHRISTENSEN KAYE SCHOLER, L.L.P. 425 PARK AVE. NEW YORK, NY 10022−3598 212−836−7873 LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANDREW K. SOLOW KAYE SCHOLER, L.L.P. 425 PARK AVE. NEW YORK, NY 10022−3598 LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANDREW D. STILLUFSEN KAYE SCHOLER, L.L.P. 425 PARK AVE. NEW YORK, NY 10022−3598 212−836−8000 Fax: 212−836−8689 Email: astillufsen@kayescholer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

CARLENE MARIE MCNULTY NORTH CAROLINA JUSTICE &COMMUNITY DEVELOPMENT CENTER POB 28068 RALEIGH, NC 27611 919−856−2161 LEAD ATTORNEY ATTORNEY TO BE NOTICED

CAROL BROOKE NORTH CAROLINA JUSTICE &COMMUNITY DEVELOPMENT CENTER POB 28068 RALEIGH, NC 27611 919−856−2144 Fax: 919−856−2175 Email: carol@ncjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DANIEL WERNER WORKERS' RIGHTS LAW CENTER OF NEW YORK, INC.

Case: 1:05-cv-559 document<docnum> filed <datefiled> 1 of 27

V. Defendant STERLING ONIONS, INC. TERMINATED: 10/21/2004
Defendant ZAPPALA FARMS, LLC TERMINATED: 10/21/2004
Defendant ZAPPALA HOLDING COMPANY, LLC TERMINATED: 10/21/2004
Defendant ZAPPALA ENTERPRISES, INC. TERMINATED: 10/21/2004
Defendant JAMES ZAPPALA TERMINATED: 10/21/2004
Defendant INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.

101 HURLEY AVE., STE. 5 KINGSTON, NY 12401 845−331−6615 Fax: 845−331−6617 Email: dwerner@wnylc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED JENNIFER K. BROWN LEGAL MOMENTUM 359 HUDSON ST., 5TH FLOOR NEW YORK, NY 10014 212−413−7536 LEAD ATTORNEY ATTORNEY TO BE NOTICED TIMOTHY CASEY LEGAL MOMENTUM 359 HUDSON ST., 5TH FLOOR NEW YORK, NY 10014 212−925−6635 Fax: 212−226−1066 Email: tcasey@legalmomentum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SUBHASH VISWANATHAN BOND SCHOENECK LAW FIRM − SYRACUSE ONE LINCOLN CENTER SYRACUSE, NY 13202−1355 315−218−8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED WILLIAM RANDOLPH LOFTIS , JR. CONSTANGY BROOKS &SMITH, LLC

Case: 1:05-cv-559 document<docnum> filed <datefiled> 2 of 27

Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.
Defendant DEL−AL ASSOCIATES, INC.

100 N. CHERRY ST., STE. 300 WINSTON−SALEM, NC 27101 336−721−1001 Fax: 336−748−9112 Email: rloftis@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBIN E. SHEA CONSTANGY BROOKS &SMITH, LLC 100 N. CHERRY ST., STE. 300 WINSTON−SALEM, NC 27101 336−721−1001 Fax: 336−748−9112 Email: rshea@constangy.com ATTORNEY TO BE NOTICED
represented by WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBIN E. SHEA (See above for address) ATTORNEY TO BE NOTICED
represented by GARY L. FULLER PLUNKETT GIBSON LAW FIRM RENAISSANCE PLAZA 70 N. E. LOOP 410, STE. 1100 SAN ANTONIO, TX 78216 210−734−7094 Fax: 210−734−0379 Email: fullerg@plunkett−gibson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY DEAN PATTON SPILMAN THOMAS &BATTLE PLLC 110 OAKWOOD DR., STE. 500 WINSTON−SALEM, NC 27103 336−725−4710 Fax: 336−725−4476 Email: jpatton@spilmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN T. MCCANN HANCOCK ESTABROOK LAW FIRM 1500 MONY TOWER I SYRACUSE, NY 13221 315−471−3151 LEAD ATTORNEY ATTORNEY TO BE NOTICED
NATHAN BOWEN ATKINSON SPILMAN THOMAS &BATTLE, PLLC 110 OAKWOOD DR., STE. 500 WINSTON−SALEM, NC 27103 336−725−4710 Fax: 336−725−4476 Email: natkinson@spilmanlaw.com

Case: 1:05-cv-559 document<docnum> filed <datefiled> 3 of 27

Cross−Claimant STERLING ONIONS, INC. TERMINATED: 10/21/2004
V. Cross−Defendant DEL−AL ASSOCIATES, INC.
Cross Claimant JAMES ZAPPALA TERMINATED: 10/21/2004 Cross Claimant ZAPPALA FARMS, LLC TERMINATED: 10/21/2004 Cross Claimant ZAPPALA HOLDING COMPANY, LLC TERMINATED: 10/21/2004 Cross Claimant ZAPPALA ENTERPRISES, INC. TERMINATED: 10/21/2004
V. Cross Defendant INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC.

LEAD ATTORNEY ATTORNEY TO BE NOTICED ROBIN E. SHEA (See above for address) ATTORNEY TO BE NOTICED RYAN M. DEBSKI SPILMAN THOMAS &BATTLE, PLLC 150 CLAY ST., SECOND FLOOR P.O. BOX 615 MORGANTON, WV 26507−0615 304−291−7920 Email: rdebski@spilmanlaw.com ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) ATTORNEY TO BE NOTICED RYAN M. DEBSKI (See above for address) ATTORNEY TO BE NOTICED
represented by WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED ROBIN E. SHEA (See above for address) ATTORNEY TO BE NOTICED

Case: 1:05-cv-559 document<docnum> filed <datefiled> 4 of 27

Cross Defendant
NORTH CAROLINA GROWERS' ASSOCIATION, INC.

represented by WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBIN E. SHEA (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/23/2002
12/23/2002
02/19/2003 03/14/2003
03/14/2003 03/14/2003 03/28/2003 04/22/2003

# Docket Text
1 COMPLAINT filed; FILING FEE $150 RECEIPT #66751; Service deadline 2/21/2003 for Del−Al Associates, for NC Growers' Assoc, for International Labor, for James Zappala, for Zappala Enterprises, for Zappala Holding, Co., for Zappala Farms, LLC, for Sterling Onions, Inc., filed by MARCELA OLVERA−MORALES. (Original documents filed in the Northern District of New York)(McClain, Abby) (Entered: 06/22/2005)
Summons Issued as to JAMES ZAPPALA, INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., STERLING ONIONS, INC., ZAPPALA FARMS, LLC, ZAPPALA HOLDING COMPANY, LLC, ZAPPALA ENTERPRISES, INC. (Original documents filed in the Northen District of New York)(McClain, Abby) (Entered: 06/22/2005)
2 ANSWER to Complaint by DEL−AL ASSOCIATES, INC. (Attorney John T. McCann), jury demand.(Original documents filed in the Northern District of New York)(McClain, Abby) (Entered: 06/22/2005)
3 ANSWER to Complaint and CROSSCLAIM against INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. by STERLING ONIONS, INC., ZAPPALA FARMS, LLC, ZAPPALA HOLDING COMPANY, LLC, ZAPPALA ENTERPRISES, INC., and JAMES ZAPPALA. (Original documents filed in the District of New York)(McClain, Abby) (Entered: 06/22/2005)
4 NOTICE/DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Defendants STERLING ONIONS, INC., JAMES ZAPPALA, ZAPPALA FARMS, LLC, ZAPPALA HOLDING COMPANY, LLC, ZAPPALA ENTERPRISES, INC.(Original documents filed in the District of New York) (McClain, Abby) (Entered: 06/22/2005)
5 ANSWER to Complaint by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC.(Original documents filed in the Northern District of New York)(McClain, Abby) (Entered: 06/22/2005)
6 ANSWER by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC.to cross claim of Defendants: Sterling Onions' and Zappala Enterprises.(McClain, Abby) (Entered: 06/22/2005)
7 MINUTE ENTRY of Rule 16 Conference before MJ Sharpe:App: Wendy Weiser, Esq., Daniel Werner, Esq., for pltfs., Joseph Wallen, Esq.Virginia Piekarski, Esq., John T. McCann, Esq., and Gary Fuller, Esq. for Defts.− Parties discuss completing written discovery and depositions last; Atty Weiser for the Pltf suggests that 30(b)(6) depositions may need to be done of 3 witnesses along with written discovery; Judge Sharpe opts case out of ADR; Judge Sharpe orders document requests and interrogatories to be served by 5/6/03; Reply to requests and interrogatoris due 7/7/03; Atty Loftis and Atty Fuller state they may want to file a motion to dismiss pursuant to 12(b)(6) after written discovery is completed;Atty Weiser states she may need to conduct Rule 30(b)(6) depositions to respond to the motions to dismiss; Judge Sharpe will not issue a pretrial scheduling order until after the motions have been decided by Judge Mordue; Judge Sharpe sets the

Case: 1:05-cv-559 document<docnum> filed <datefiled> 5 of 27

10/21/2004
10/22/2004 05/23/2005 06/14/2005 06/15/2005 06/20/2005

motion deadlines. Dispositive motions to be filed by 8/7/03; Response to motions due 9/9/03; Reply to motion by 9/22/03; Motions shall be made returnable before Judge Mordue with a 10/22/03 return date. Judge Sharpe orders no Rule 30(b)(6) depositions are to be taken at this time, and he will entertain additional discovery if the need arises to respond to the motion at the request of parties; Rule 16 conference to be scheduled after the decisions of the motions.Minute Entry held on 4/22/2003. (Original documents filed in the Northern District of New York) (Court Reporter Judi L. McNicholas.) (McClain, Abby) (Entered: 06/22/2005)
8 Minute Entry for proceedings held before Judge David E. Peebles: Initial Pretrial Conference held on 10/21/2004. Parties agree that there are no longer any cross−claims pending regarding the Zappala entities and Sterling Onion. Judge advises that the Zappala entities and Sterling Onion will be terminated from the court's docket as defendants in this lawsuit. Del−Al has presented a settlement offer to plaintiff's counsel and settlement negotiations are ongoing. Del−Al is located in Virginia and ILMC is located in the MDNC. Parties discuss if this case should remain in this district. Plaintiffs' counsel states that they would oppose any motion to change venue. Initial disclosures have been exchanged and some discovery has been done regarding the previous motion for summary judgement that was filed. Plaintiffs' counsel advises that they will need supplemental discovery and requests additional interrogatories and depositions over the 25 interrog. and 10 depo. allowed by the court. Judge directs the parties to work on discovery and try to work this out. If they cannot, the parties are to request court intervention. Plaintiff currently resides in Mexico and does not speak English. Parties are working on holding plaintiff's deposition somewhere close to the border, since plaintiff may not have a visa to come into the U.S. for the deposition. Judge sets motions for class certification ddl. to 8/1/05. Joinder &amendment ddls. are set for 6/30/05, discovery ddl. is set for 10/31/05, and motion filing ddl. is set for 1/31/06. Jury trial is expected to last 10 days in Syracuse. Next telephone conference is set for 2/4/05 at 3:00pm Plaintiff's counsel is to initiate the call. Minute Entry held on 10/21/2004. (Original documents filed in the Northern District of New York) (McClain, Abby) (Entered: 06/22/2005)
9 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 10 days Jury Trial. Preferred Trial Location: Syracuse, New York. Joinder of Parties due by 6/30/2005. Amender Pleadings due by 6/30/2005. Discovery due by 10/31/2005. Motions to be filed by 1/31/2006. Parties opt out of ADR program.(Original documents filed in the Northern District of New York) Signed by Judge David E. Peebles on 10/22/2004. (McClain, Abby) (Entered: 06/22/2005)
AMENDED TEXT SCHEDULING ORDER: Joinder and amendment deadlines remain the same, which are 6/30/2005. Discovery deadline is 3/31/2006. Motions to be filed deadline is 5/31/2006. If no dispositive motion is filed, the Trial Ready Deadline is 8/1/2006. If a dispositive motion is filed, then the Trial Ready Deadline is 60 days after that motion has been decided. This is a FINAL extension of these deadlines. Endorsed by Judge David E. Peebles on 5/23/05.(McClain, Abby) (Entered: 06/22/2005)
10 LETTER BRIEF re: request for discovery conference by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Original documents filed in the Northern District of New York)(McClain, Abby) (Entered: 06/22/2005)
11 ORDER granting 70 Motion to Transfer Case, and granting 71 Motion to Transfer Case to Middle District of North Carolina. (Original documents filed in the Northern District of New York) Signed by Judge Norman A. Mordue on 06/15/2005. (McClain, Abby) (Entered: 06/22/2005)
Original File, certified copy of transfer order and docket sheet received from the Northern District of New York 06/20/2005 (If you wish to view and/or obtain any docket entries prior to 06/20/2005, please go to the website for the U.S. Northern District of New York at http://156.121.59.197/.) (McClain, Abby) (Entered: 06/22/2005)

Case: 1:05-cv-559 document<docnum> filed <datefiled> 6 of 27

06/20/2005 06/20/2005 06/22/2005 08/15/2005
08/16/2005 08/19/2005 08/19/2005 08/22/2005 08/23/2005 09/02/2005 09/09/2005
10/21/2005 11/23/2005
04/19/2006 05/04/2006 05/04/2006 05/04/2006 05/04/2006 05/08/2006

Discovery deadline due by 3/31/2006. (McClain, Abby) (Entered: 08/01/2005)
Motions to be filed due by 5/31/2006. (McClain, Abby) (Entered: 08/01/2005)
CASE REFERRED to Mediation. (McClain, Abby) (Entered: 06/22/2005)
14 NOTICE of Appearance by Defendant DEL−AL ASSOCIATES, INC. of Jeffrey D. Patton and Nathan B. Atkinson on behalf of defendant. (Simmonds, Lisa) Modified on 8/19/2005 to correct docket text(Simmonds, Lisa). (Entered: 08/19/2005)
13 MOTION for Pro Hac Vice Admission Gary L. Fuller by Attorney JEFFREY DEAN PATTON on behalf of Defendant DEL−AL ASSOCIATES, INC. (PATTON, JEFFREY) (Entered: 08/16/2005)
MOTIONS 13 for Pro Hac Vice Admission Gary L. Fuller REFERRED to Mag/Judge Sharp. (Williamson, Wanda) (Entered: 08/19/2005)
16 NOTICE of Appearance by Plaintiff MARCELA OLVERA−MORALES as to Carol L. Brooke and Carlene McNulty on behalf of plaintiff. (Simmonds, Lisa) (Entered: 08/23/2005)
15 ORDER Granting 13 Motion for Pro Hac Vice Admission of Gary L. Fuller as counsel for defendant Del−Al Associates, Inc. Signed by Judge P. TREVOR SHARP on 8/22/05. (Simmonds, Lisa) (Entered: 08/22/2005)
CASE REFERRED to Magistrate Judge Sharp (Blumke, Sheila) (Entered: 08/23/2005)
17 NOTICE of Hearing:Initial Pretrial Conference set for 10/31/2005 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) (Entered: 09/02/2005)
18 NOTICE of Appearance by attorney WILLIAM RANDOLPH LOFTIS, JR on behalf of Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., Cross Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 09/09/2005)
19 NOTICE of Hearing:Initial Pretrial Conference reset for 11/28/2005 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) (Entered: 10/21/2005)
TEXT ORDER: In view of Judge Mordue's Memorandum−Decision and Order of 11/17/2005 in the Northern District of New York, the Initial Pretrial Conference in Case No. 1:05CV00559 is postponed until further notice. Issued by Judge P. TREVOR SHARP on 11/23/05. (Cable, Frances) (Entered: 11/23/2005)
20 NOTICE by DEL−AL ASSOCIATES, INC. Vacation Letter (FULLER, GARY) (Entered: 04/19/2006)
21 MOTION for Pro Hac Vice Admission of TIMOTHY CASEY by MARCELA OLVERA−MORALES. (Attachments: # 1 Affidavit # 2 Proposed Order)(Welch, Kelly) (Entered: 05/08/2006)
22 MOTION for Pro Hac Vice Admission of ANDREW DAVIN STILLUFSEN by MARCELA OLVERA−MORALES. (Attachments: # 1 Affidavit # 2 Proposed Order)(Welch, Kelly) (Entered: 05/08/2006)
23 MOTION for Pro Hac Vice Admission of ANDREW K. SOLOW by MARCELA OLVERA−MORALES. (Attachments: # 1 Affidavit # 2 Proposed Order)(Welch, Kelly) (Entered: 05/08/2006)
24 MOTION for Pro Hac Vice Admission of DANIEL WERNER by MARCELA OLVERA−MORALES. (Attachments: # 1 Affidavit # 2 Proposed Order)(Welch, Kelly) (Entered: 05/08/2006)
25 ECF 30 Day Notice as to Attorney CAROL L. BROOKE to 22 MOTION for Pro Hac Vice Admission, 21 MOTION for Pro Hac Vice Admission, 24 MOTION for

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05/09/2006 05/11/2006
05/22/2006 05/23/2006 06/27/2006 07/28/2006 08/18/2006 08/18/2006 08/18/2006
08/18/2006 08/18/2006 08/21/2006 08/22/2006 08/22/2006

Pro Hac Vice Admission, 23 MOTION for Pro Hac Vice Admission. (Welch, Kelly) (Entered: 05/08/2006)
***Motions Referred: 22 MOTION for Pro Hac Vice Admission, 21 MOTION for Pro Hac Vice Admission, 24 MOTION for Pro Hac Vice Admission, 23 MOTION for Pro Hac Vice Admission to Judge P. TREVOR SHARP (Blumke, Sheila) (Entered: 05/09/2006)
26 ORDER signed by Judge P. TREVOR SHARP on 5/11/006, that the motions (Pleading Nos. 21, 22, 23 and 24) are GRANTED and that Timothy Casey, Andrew Davin Stillufsen, Andrew K. Solow, and Daniel Werner are permitted to appear specially as counsel for plaintiff. Mr. Casey, Mr. Stillufsen, Mr.Solow and Mr. Werner are subject to the jurisdiction of this Court for purposes of disciplinary matters relating to this case. (Welch, Kelly) (Entered: 05/11/2006)
27 REQUEST by Defendant DEL−AL ASSOCIATES, INC. for Vacation. (FULLER, GARY) (Entered: 05/22/2006)
28 Letter from Clerk to Attorney Fuller re 27 Request for Vacation. (Powell, Gloria) (Entered: 05/23/2006)
29 STATUS REPORT by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC.. (Attachments: # 1 Exhibit)(LOFTIS, WILLIAM) (Entered: 06/27/2006)
30 NOTICE of Initial Pretrial Conference Hearing: Initial Pretrial Conference Hearing set for 8/28/2006 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) (Entered: 07/28/2006)
31 Rule 26(f) Report (Individual) filed by all parties. by MARCELA OLVERA−MORALES. (Attachments: # 1 proposed Rule 26(f) order)(BROOKE, CAROL) (Entered: 08/18/2006)
32 MOTION to Compel Discovery by MARCELA OLVERA−MORALES. (BROOKE, CAROL) (Entered: 08/18/2006)
33 MEMORANDUM filed by Plaintiff MARCELA OLVERA−MORALES re 32 MOTION to Compel Discovery filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Certificate of Conference)(BROOKE, CAROL) (Entered: 08/18/2006)
34 CERTIFICATE OF SERVICE by MARCELA OLVERA−MORALES re 31 Rule 26(f) Report (Individual) filed by all parties. Amended (BROOKE, CAROL) (Entered: 08/18/2006)
35 CERTIFICATE OF SERVICE by MARCELA OLVERA−MORALES re 32 MOTION to Compel Discovery Amended (BROOKE, CAROL) (Entered: 08/18/2006)
36 Rule 26(f) Report (Individual) filed by all parties. Responses due by 9/13/2006 by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC..(LOFTIS, WILLIAM) (Entered: 08/21/2006)
37 JOINT MOTION to Strike Class Allegations by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC.. Responses due by 9/14/2006 (SHEA, ROBIN) (Entered: 08/22/2006)
38 MEMORANDUM filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., Cross Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., Cross−Defendant DEL−AL ASSOCIATES, INC. re 37 JOINT MOTION to Strike Class Allegations filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC..

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08/22/2006
08/28/2006 08/31/2006 09/11/2006 09/11/2006
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(Attachments: # 1 Affidavit Affidavit of W.R. Loftis, Jr.)(SHEA, ROBIN) (Entered: 08/22/2006)
39 APPENDIX re 37 JOINT MOTION to Strike Class Allegations by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., Cross Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., Cross−Defendant DEL−AL ASSOCIATES, INC.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z# 27 Exhibit AA# 28 Exhibit BB# 29 Exhibit CC# 30 Exhibit DD# 31 Exhibit EE# 32 Exhibit FF# 33 Exhibit GG# 34 Exhibit HH# 35 Exhibit II)(SHEA, ROBIN) (Entered: 08/22/2006)
Minute Entry for proceedings held before Judge P. TREVOR SHARP : Proceedings recorded. Initial Pretrial Conference called on 8/28/2006. The court will delay entering a Jt. Rule 26(f) order until briefing is complete on the plaintiff's Motion to Compel #32. (Williamson, Wanda) (Entered: 08/28/2006)
40 Rule 26(f) Report (Individual) Amended filed defendants. Responses due by 9/25/2006 by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC. (LOFTIS, WILLIAM) Modified on 9/1/2006 (Welch, Kelly). (Entered: 08/31/2006)
41 RESPONSE in Opposition re 32 MOTION to Compel Discovery filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC..Replies due by 9/22/2006. (Attachments: # 1 Affidavit of W.R. Loftis, Jr.)(SHEA, ROBIN) Modified on 9/12/2006 to edit duplicate text(Welch, Kelly). (Entered: 09/11/2006)
42 APPENDIX re 41 Response in Opposition to Motion, by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., Cross Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z# 27 Exhibit AA)(SHEA, ROBIN) Modified on 9/12/2006 to to edit exhibit description (Welch, Kelly). (Entered: 09/11/2006)
43 RESPONSE in Opposition re 37 JOINT MOTION to Strike Class Allegations filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 09/14/2006)
44 DECLARATION of ANDREW DAVIN STILLUFSEN filed by Plaintiff MARCELA OLVERA−MORALES re 43 Response in Opposition to Motion filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Addendum# 5 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 09/14/2006)
45 REPLY, filed by Plaintiff MARCELA OLVERA−MORALES, to Response to 32 MOTION to Compel Discovery filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Addendum# 2 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 09/28/2006)
46 REPLY, filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., to Response to 37 JOINT MOTION to Strike Class Allegations filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC. (SHEA, ROBIN) Modified on 10/3/2006 to

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10/13/2006 11/15/2006 11/27/2006
11/27/2006 11/28/2006
12/13/2006 12/13/2006 12/15/2006 12/21/2006 12/22/2006 12/28/2006

edit duplicate text (Welch, Kelly). (Entered: 10/02/2006)
***Motions Referred: 32 MOTION to Compel Discovery, 37 JOINT MOTION to Strike Class Allegations to Judge P. TREVOR SHARP − (McCarty, Dianne) (Entered: 10/13/2006)
47 NOTICE of Hearing on Motion 32 MOTION to Compel Discovery, 37 JOINT MOTION to Strike Class Allegations : Motion Hearing set for 11/27/2006 03:00 PM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) (Entered: 11/15/2006)
Minute Entry for proceedings held before Judge P. TREVOR SHARP : Motion Hearing held on 11/27/2006 re 32 MOTION to Compel Discovery filed by MARCELA OLVERA−MORALES, 37 JOINT MOTION to Strike Class Allegations filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC. Andrew Solow, Carlene McNulty appeared as counsel for the plaintiff. Robin Shea, William Loftis, Jr. appeared as counsel for defendants Int'l Labor Management Corp., Inc., and N.C. Growers' Association, Inc. Jeffrey Patton appeared as counsel for defendant Del−Al Assoc., Inc., 37 Joint Motion to Strike was DENIED in open court. The parties have resolved 32 Motion to Compel. This matter is set for an Initial Pretrial Conference on 12/18/06 at 9:30 a.m. in Greensboro, NC, Ctrm. G1A before Mag/Judge Sharp. Court order will be entered. (Proceedings Recorded). (Williamson, Wanda) (Entered: 11/27/2006)
Set Deadlines/Hearings: Initial Pretrial Conference set for 12/18/2006 09:30 AM in Greensboro Courtroom #1A before MAG/JUDGE P. TREVOR SHARP. (Williamson, Wanda) (Entered: 11/27/2006)
TEXT ORDER − For reasons announced in open court on 11/27/2006, 37 Defendants' Joint Motion to Strike Class Allegations is DENIED. The parties advised the court that they have resolved Plaintiff's 32 Motion to Compel discovery. The clerk shall set this matter on for an initial pretrial conference on 12/18/2006 at 9:30 a.m. in Greensboro (Courtroom 1A). Plaintiff's Motion for Class Certification is due 1/31/2007. (Issued by Judge P. TREVOR SHARP.) (Cable, Frances) (Entered: 11/28/2006)
48 Rule 26(f) Report (Joint) filed by all parties by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., MARCELA OLVERA−MORALES.(LOFTIS, WILLIAM) (Entered: 12/13/2006)
***Motions Referred: 48 Rule 26(f) Report (Joint) filed by all parties to Judge P. TREVOR SHARP − (Williamson, Wanda) (Entered: 12/13/2006)
49 ORDER APPROVING RULE 26F REPORT (JOINT) signed by Judge P. TREVOR SHARP on 12/15/06. Discovery due by 6/29/2007. Any application to amend any pleading in this action shall be made by January 31, 2007. (Welch, Kelly) (Entered: 12/15/2006)
50 Joint MOTION for Extension of Time for Class Certification Motion Briefing Schdule by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., MARCELA OLVERA−MORALES.Responses due by 1/13/2007 (Attachments: # 1 Text of Proposed Order)(LOFTIS, WILLIAM) (Entered: 12/21/2006)
***Motions Referred: 50 Joint MOTION for Extension of Time for Class Certification Motion Briefing Schdule to Judge P. TREVOR SHARP (Blumke, Sheila) (Entered: 12/22/2006)
51 ORDER signed by Judge P. TREVOR SHARP on 12/28/06, that the joint motion for extension (Pleading No. 50) is GRANTED and that Paragraph 3 of the Joint Rule 26(f) Report is modified as follows: Plaintiff's Moving brief is due February 15, 2007; Defendants' Opposition brief is due March 16, 2007; Plaintiff's Reply brief is due March 30, 2007. (Law, Trina) (Entered: 12/28/2006)

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12/29/2006 01/08/2007 01/19/2007 01/31/2007 02/07/2007 02/08/2007 02/14/2007
02/14/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007

MEDIATION SCHEDULING ORDER; Mediation due by 6/29/2007. (Gammon, Cheryl) (Entered: 12/29/2006)
52 NOTICE of Hearing:Jury Trial set for 1/7/2008 09:30 AM in Unassigned Courtroom before UNASSIGNED. Trial Briefs, etc. due 12/18/2007. (Blumke, Sheila) (Entered: 01/08/2007)
53 ORDER Appointing JONATHAN R. HARKAVY as the mediator pursuant to LR 83.9d(a). Signed by John S. Brubaker, Clerk of Court. (Gammon, Cheryl) (Entered: 01/19/2007)
54 MOTION for Leave to File First Amended Original Answer and Jury Demand by DEL−AL ASSOCIATES, INC. Responses due by 2/23/2007 (Attachments: # 1 Exhibit 1 # 2 Exhibit 2)(FULLER, GARY) Modified on 2/2/2007 to include description as to attachments (Welch, Kelly). (Entered: 01/31/2007)
Electronic Notification from Atty. Fuller's office on 2/7/2007: Opposing counsel does not oppose the Motion for Leave to File Amended Answer.(Blumke, Sheila) (Entered: 02/08/2007)
***Motions Referred: 54 MOTION for Leave to File First Amended Original Answer and Jury Demand to Judge P. TREVOR SHARP (Blumke, Sheila) (Entered: 02/08/2007)
55 ORDER signed by Judge P. TREVOR SHARP on 2/14/07, that Defendant Del−Al Associates, Inc.'s motion (Pleading No. 54 ) is hereby GRANTED and that Defendant Del−Al Associates, Inc.'s First Amended Original Answer and Jury Demand attached as Exhibit A to said Motion be filed with the papers of this cause. (Welch, Kelly) (Entered: 02/14/2007)
56 FIRST AMENDED ORIGINAL ANSWER to Complaint with Jury Demand by DEL−AL ASSOCIATES, INC.(Welch, Kelly) (Entered: 02/14/2007)
57 MOTION FOR CLASS CERTIFICATION (Oral Argument Requested) by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) Modified on 2/16/2007 to include additional text (Welch, Kelly). (Entered: 02/15/2007)
58 MEMORANDUM filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
59 DECLARATION of ANDREW DAVIN STILLUFSEN filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
60 DECLARATION of CAROL L. BROOKE filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
61 DECLARATION of TIMOTHY CASEY filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
62 DECLARATION of DANIEL WERNER filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
63 DECLARATION of CARLENE MCNULTY filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)

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02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007
02/16/2007 02/16/2007 02/16/2007

64 DECLARATION of ELISA TOVAR MARTINEZ filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
65 DECLARATION of JUANA HERANDEZ MARTINEZ filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
66 DECLARATION of PATRICIA CAMPOS MARTINEZ filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
67 DECLARATION of ANA BERTHA CAMPOS MARTINEZ filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
68 DECLARATION of MARIA EUGENIN TREJO ZUNIGA filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
69 DECLARATION of ELPIDIA VILLEDA filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
70 DECLARATION of MARIA APOLINAR RESENDIZ PONCE filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
71 DECLARATION of MARIA ALBA TOVAR MARTINEZ filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
72 DECLARATION of SANTAS ZUNIGA TOVAR filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
73 DECLARATION of MARGARITA GALLEGOS filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
74 DECLARATION of STEPHEN JONES filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/15/2007)
75 ***Sealed EXHIBITS re 74 Declaration, Exhibit 7 by Plaintiff MARCELA OLVERA−MORALES. (STILLUFSEN, ANDREW) (Entered: 02/16/2007)
76 ***Sealed EXHIBITS re 74 Declaration, Exhibit 9 by Plaintiff MARCELA OLVERA−MORALES. (STILLUFSEN, ANDREW) (Entered: 02/16/2007)
77 ***Sealed EXHIBITS re 74 Declaration, Exhibit 10 by Plaintiff MARCELA OLVERA−MORALES. (STILLUFSEN, ANDREW) (Entered: 02/16/2007)

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02/23/2007 03/16/2007 03/16/2007
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03/30/2007
03/30/2007 03/30/2007 04/03/2007 04/04/2007 04/11/2007 04/17/2007 04/17/2007

78 NOTICE by DEL−AL ASSOCIATES, INC. of Vacation Letter (FULLER, GARY) (Entered: 02/23/2007)
79 RESPONSE in Opposition re 57 MOTION FOR CLASS CERTIFICATION filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 4/2/2007. (SHEA, ROBIN) (Entered: 03/16/2007)
80 APPENDIX re 79 Response in Opposition to Motion for Class Certification by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Tab 1−Affidavit of Mary Dunn Baker, Ph.D.# 2 Tab 2−Affidavit of C. Stanford Eury# 3 Tab 3−Affidavit of Sarah E. Farrell# 4 Tab 4−Affidavit of Robin E. Shea# 5 Tab 5−Deposition Excerpts of Marcella Olvera−Morales# 6 Tab 6−Deposition Excerpts of Juan del Alamo# 7 Tab 7−Deposition Excerpts of C. Stanford Eury)(SHEA, ROBIN) (Entered: 03/16/2007)
81 RESPONSE in Opposition re 57 MOTION FOR CLASS CERTIFICATION filed by DEL−AL ASSOCIATES, INC. Replies due by 4/2/2007. (PATTON, JEFFREY) (Entered: 03/16/2007)
82 MOTION for Leave to File Under Seal by MARCELA OLVERA−MORALES.Responses due by 4/23/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 03/30/2007)
83 REPLY MEMORANDUM OF LAW (with Oral Argument Requested) filed by Plaintiff MARCELA OLVERA−MORALES in further support of 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES (STILLUFSEN, ANDREW) Modified on 4/2/2007 to edit duplicate text (Welch, Kelly). (Entered: 03/30/2007)
84 DECLARATION of STEPHEN JONES filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1 (filed under seal) [motion pending]# 2 Exhibit 2# 3 Exhibit 3)(STILLUFSEN, ANDREW) (Entered: 03/30/2007)
85 DECLARATION of ANDREW DAVIN STILLUFSEN filed by Plaintiff MARCELA OLVERA−MORALES re 57 MOTION FOR CLASS CERTIFICATION filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(STILLUFSEN, ANDREW) (Entered: 03/30/2007)
86 CERTIFICATE OF SERVICE by MARCELA OLVERA−MORALES re 84 Declaration, 85 Declaration, 83 Response to Motion, (STILLUFSEN, ANDREW) (Entered: 03/30/2007)
87 MOTION for Leave to File Surreply by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Responses due by 4/26/2007 (Attachments: # 1 Text of Proposed Order)(SHEA, ROBIN) (Entered: 04/03/2007)
88 MOTION for Leave to File Surreply by DEL−AL ASSOCIATES, INC. Responses due by 4/27/2007 (Attachments: # 1 Text of Proposed Order)(PATTON, JEFFREY) (Entered: 04/04/2007)
89 RESPONSE in Opposition re 88 MOTION for Leave to File Surreply filed by MARCELA OLVERA−MORALES. Replies due by 4/30/2007. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 04/11/2007)
***Motions Submitted: 57 MOTION FOR CLASS CERTIFICATION to Judge N. C. TILLEY JR. (Blumke, Sheila) (Entered: 04/17/2007)
90 REPLY, filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., to Response to 88 MOTION for Leave to File Surreply filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH

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06/06/2007 06/07/2007 06/21/2007 06/26/2007 06/28/2007 07/03/2007 07/05/2007 07/06/2007 07/16/2007 07/30/2007 07/30/2007 07/30/2007 07/30/2007 07/30/2007
07/30/2007

CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 04/17/2007)
***Motions Submitted: 82 MOTION for Leave to File Under Seal, 88 MOTION for Leave to File Surreply, 87 MOTION for Leave to File Surreply to Judge N. C. TILLEY JR. (Blumke, Sheila) (Entered: 06/06/2007)
91 NOTICE by DEL−AL ASSOCIATES, INC. of Vacation and CLE (FULLER, GARY) (Entered: 06/07/2007)
92 NOTICE of Appearance by attorney RYAN M. DEBSKI on behalf of Defendant DEL−AL ASSOCIATES, INC., Cross−Defendant DEL−AL ASSOCIATES, INC. (Attachments: # 1 Exhibit Certificate of Good Standing for Ryan M. Debski)(DEBSKI, RYAN) (Entered: 06/21/2007)
93 Joint MOTION for Extension of Time to Complete Discovery by MARCELA OLVERA−MORALES.Responses due by 7/16/2007 (BROOKE, CAROL) (Entered: 06/26/2007)
***Motions Referred: 93 Joint MOTION for Extension of Time to Complete Discovery to Judge P. TREVOR SHARP − (McCarty, Dianne) (Entered: 06/28/2007)
94 ORDER signed by Judge P. TREVOR SHARP on 7/3/07, that the motion (Pleading No. 93 ) is GRANTED and that the discovery period is extended through and including July 20, 2007. The time for dispositive motions is not extended. Discovery due by 7/20/2007.(Welch, Kelly) (Entered: 07/03/2007)
95 NOTICE of Intent to File Dispositive Motions by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 07/05/2007)
96 NOTICE of Intent to File Dispositive Motions by Defendant DEL−AL ASSOCIATES, INC., Cross−Defendant DEL−AL ASSOCIATES, INC. (PATTON, JEFFREY) (Entered: 07/06/2007)
97 NOTICE of Intent to File Dispositive Motions by Plaintiff MARCELA OLVERA−MORALES (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 07/16/2007)
98 MOTION for Summary Judgment by DEL−AL ASSOCIATES, INC. Responses due by 9/4/2007 (FULLER, GARY) (Entered: 07/30/2007)
99 MEMORANDUM re 98 MOTION for Summary Judgment In Support of by Defendant DEL−AL ASSOCIATES, INC. (Attachments: # 1 Exhibit # 2 Exhibit Del−Alamo's Depo# 3 Exhibit Del−Alamo's Depo# 4 Exhibit Del−Alamo's Depo# 5 Exhibit Del−Alamo's Depo)(FULLER, GARY) (Entered: 07/30/2007)
100 Additional Attachments to MEMORANDUM 99 (Attachments: # 1 Exhibit Plaintiff's Depo# 2 Exhibit Plaintiff's Depo)(FULLER, GARY) (Entered: 07/30/2007)
101 MOTION for Summary Judgment by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Responses due by 9/4/2007 (SHEA, ROBIN) (Entered: 07/30/2007)
102 MEMORANDUM filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 101 MOTION for Summary Judgment filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 07/30/2007)
103 APPENDIX re 101 MOTION for Summary Judgment by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Tab 1−Affidavit of Mary Dunn Baker, Ph.D.# 2 Tab 2−Second Affidavit of Mary Dunn Baker, Ph.D.# 3 Tab 3−Affidavit of Sarah E. Farrell# 4 Tab 4−Affidavit of James

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07/30/2007 07/30/2007
07/30/2007 07/30/2007
08/14/2007 08/14/2007 08/22/2007 09/04/2007 09/10/2007
09/12/2007

S. Holt# 5 Tab 5−Affidavit of C. Stanford Eury, Jr.# 6 Tab 6−Affidavit of W.R. Loftis, Jr.# 7 Tab 7−Affidavit of Robin E. Shea# 8 Tab 8−Marcella Olvera−Morales Deposition Excerpts# 9 Tab 9−Juan del Alamo Deposition Excerpts# 10 Tab 10−David W. Griffin, Ph.D. Deposition Excerpts# 11 Tab 11−James S. Holt Deposition Excerpts# 12 Tab 12−Cited Unpublished Authority)(SHEA, ROBIN) (Entered: 07/30/2007)
104 MOTION to Strike Expert Report of Sandy Smith−Nonini by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Responses due by 8/23/2007 (SHEA, ROBIN) (Entered: 07/30/2007)
105 MEMORANDUM filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 104 MOTION to Strike Expert Report of Sandy Smith−Nonini filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit A−Expert Witness Report by Sandy Smith−Nonini, Ph.D.# 2 Exhibit B−Sandy Smith−Nonini, Ph.d. Deposition Excerpts)(SHEA, ROBIN) (Entered: 07/30/2007)
106 AFFIDAVIT in Support re 104 MOTION to Strike Expert Report of Sandy Smith−Nonini by C. Stanford Eury, Jr. filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 8/16/2007. (SHEA, ROBIN) (Entered: 07/30/2007)
107 AFFIDAVIT in Support re 104 MOTION to Strike Expert Report of Sandy Smith−Nonini by Robin E. Shea filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 8/16/2007. (Attachments: # 1 Exhibit A−Sandy Smith−Nonini, Ph.d. Deposition Excerpts# 2 Exhibit B−Article written by Sandy Smith−Nonini# 3 Exhibit C−Article written about Sandy Smith−Nonini and others# 4 Exhibit D−Article written by Sandy Smith−Nonini# 5 Exhibit E−Letter to the Editor written by Sandy Smith−Nonini)(SHEA, ROBIN) (Entered: 07/30/2007)
108 Consent MOTION to Modify the Summary Judgment Motion Response and Reply Briefing Schedule by MARCELA OLVERA−MORALES. Responses due by 9/7/2007 (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service)(STILLUFSEN, ANDREW) Modified on 8/15/2007 as to correct spacing. (Lee, Lisa). (Entered: 08/14/2007)
***Motions Referred: 108 Consent MOTION to Modify the Summary Judgment Motion Response and Reply Briefing Schedule to Judge P. TREVOR SHARP − (Winchester, Robin) (Entered: 08/14/2007)
109 RESPONSE in Opposition re 104 MOTION to Strike Expert Report of Sandy Smith−Nonini filed by MARCELA OLVERA−MORALES. Replies due by 9/4/2007. (Attachments: # 1 Exhibit Deposition Exerpts − Smith−Nonini# 2 Exhibit Supplemental Declaration Smith−Nonini)(BROOKE, CAROL) (Entered: 08/22/2007)
***Motions Submitted: 108 Consent MOTION to Modify the Summary Judgment Motion Response and Reply Briefing Schedule to Judge N. C. TILLEY JR.− (Winchester, Robin) (Entered: 09/04/2007)
110 REPLY, filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., to Response to 104 MOTION to Strike Expert Report of Sandy Smith−Nonini filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit A − Sandy Smith−Nonini, Ph.D. Deposition Excerpts)(SHEA, ROBIN) (Entered: 09/10/2007)
111 ***Document STRICKEN by Judge N.C. Tilley, Jr. on 11/7/2007*** RESPONSE in Opposition re 98 MOTION for Summary Judgment, 101 MOTION for Summary

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09/12/2007
09/12/2007
09/19/2007 09/19/2007 09/24/2007 09/24/2007 09/24/2007 09/25/2007 09/26/2007 11/06/2007

Judgment filed by MARCELA OLVERA−MORALES. Replies due by 10/1/2007. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) Modified on 11/8/2007 to reflect as STRICKEN (Welch, Kelly). (Entered: 09/12/2007)
112 DECLARATION of DANIEL WERNER filed by Plaintiff MARCELA OLVERA−MORALES re 101 MOTION for Summary Judgment, 98 MOTION for Summary Judgment filed by MARCELA OLVERA−MORALES. (Attachments: # 1 DECLARATION OF DANIEL WERNER AND STATEMENT PURSUANT TO RULE 65(f)# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21# 23 Exhibit 22# 24 Exhibit 23# 25 Exhibit 24# 26 Exhibit 25# 27 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 09/12/2007)
113 DECLARATION of STEPHEN JONES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed by Plaintiff MARCELA OLVERA−MORALES re 101 MOTION for Summary Judgment, 98 MOTION for Summary Judgment filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 09/12/2007)
114 MOTION to Strike Plaintiffs' Consolidated Memorandum of Law In Opposition to Defendants' Motion for Summary Judgment, as well as Plaintiffs' Supporting Declarations and Exhibits by DEL−AL ASSOCIATES, INC. Responses due by 10/12/2007 (Attachments: # 1 Affidavit of Jeffrey D. Patton)(PATTON, JEFFREY) (Entered: 09/19/2007)
115 MEMORANDUM filed by Defendant DEL−AL ASSOCIATES, INC. re 114 MOTION to Strike Plaintiffs' Consolidated Memorandum of Law In Opposition to Defendants' Motion for Summary Judgment, as well as Plaintiffs' Supporting Declarations and Exhibits filed by DEL−AL ASSOCIATES, INC. (PATTON, JEFFREY) (Entered: 09/19/2007)
116 REPLY, filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., to Response to 101 MOTION for Summary Judgment filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 09/24/2007)
117 APPENDIX re 116 Reply to Response to Motion, by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Appendix Tab 1# 2 Appendix Tab 2# 3 Appendix Tab 3# 4 Appendix Tab 4# 5 Appendix Tab 5# 6 Appendix Tab 6# 7 Appendix Tab 7)(SHEA, ROBIN) (Entered: 09/24/2007)
118 REPLY, filed by Defendant DEL−AL ASSOCIATES, INC., to Response to 98 MOTION for Summary Judgment filed by DEL−AL ASSOCIATES, INC. (PATTON, JEFFREY) (Entered: 09/24/2007)
***Motions Submitted: 104 MOTION to Strike Expert Report of Sandy Smith−Nonini, 98 MOTION for Summary Judgment, 101 MOTION for Summary Judgment to Judge N. C. TILLEY JR. (Blumke, Sheila) (Entered: 09/25/2007)
119 WITHDRAWAL of Motion by Defendant DEL−AL ASSOCIATES, INC. re 114 MOTION to Strike Plaintiffs' Consolidated Memorandum of Law In Opposition to Defendants' Motion for Summary Judgment, as well as Plaintiffs' Supporting Declarations and Exhibits. (PATTON, JEFFREY) (Entered: 09/26/2007)
120 NOTICE of Trial Calendar Jury Trial set for 1/7/2008 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Simmonds, Lisa) (Entered: 11/06/2007)

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11/07/2007
11/07/2007 11/07/2007 11/07/2007 11/19/2007 11/19/2007
11/26/2007 11/27/2007 11/28/2007 11/28/2007 11/28/2007

121 ORDER signed by JUDGE N. C. TILLEY, JR on 11/8/07, GRANTING in part and DENYING in part 108 Plaintiff Marcela Olvera−Morales motion to modify the time for filing a response to Defendants' motions for summary judgment. Plaintiff's motion to file "one set of oversized papers" is DENIED. Because Plaintiff's responsive brief as filed does not comply with Local Rule 7.3(d), the Court STRIKES Doc. # 111 . The Court GRANTS the motion to modify the time for filing and service of a response to Defendants' motions for summary judgment. Within 10 days of the date of this Order, Plaintiff shall file either a single responsive brief of not more than 20 pages or two briefs of not more than 20 pages in response to each of the Defendants' motions for summary judgment. Defendants shall have 10 days after the filing of such responsive brief(s) to file reply brief(s) of not more than 10 pages. (Welch, Kelly) (Entered: 11/08/2007)
Set Motion and RRDeadlines/Hearings re 98 MOTION for Summary Judgment, 101 MOTION for Summary Judgment: Responses due by 11/18/2007. Replies due by 11/28/2007. (Welch, Kelly) (Entered: 11/08/2007)
122 MEMORANDUM OPINION signed by JUDGE N. C. TILLEY, JR on 11/7/07, re Plaintiff's Motion for Class Certification [Doc. # 57 ] and Defendants' Motions for Leave to File a Surreply [Doc. ## 87 , 88 ]. (Welch, Kelly) (Entered: 11/08/2007)
123 ORDER signed by JUDGE N. C. TILLEY, JR on 11/7/07, for the reasons stated in a contemporaneously filed Memorandum Opinion, Plaintiff's Motion for Class Certification [Doc. # 57 ] is GRANTED, and Defendants' Motions for Leave to File a Surreply [Doc. ## 87 , 88 ] are DENIED. (Welch, Kelly) (Entered: 11/08/2007)
124 CONSOLIDATED MEMORANDUM of Law in Opposition re 98 MOTION for Summary Judgment, 101 MOTION for Summary Judgment filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 11/27/2007 to edit duplicate text (Welch, Kelly). (Entered: 11/19/2007)
125 DECLARATION of STEPHEN JONES in support 124 Memorandum of Law in Opposition re 101 MOTION for Summary Judgment, 98 MOTION for Summary Judgment filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Certificate of Service)(STILLUFSEN, ANDREW) Modified on 11/27/2007 to edit title (Welch, Kelly). (Entered: 11/19/2007)
126 NOTICE of Hearing: Settlement Conference set for 12/19/2007 02:00 PM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (McCarty, Dianne) (Entered: 11/26/2007)
127 MOTION To Allow Brief Extension of Trial Date by DEL−AL ASSOCIATES, INC. Responses due by 12/20/2007 (Attachments: # 1 Text of Proposed Order)(PATTON, JEFFREY) Modified on 11/29/2007 to edit duplicate text (Welch, Kelly). (Entered: 11/27/2007)
128 REPLY, filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., to Response to 101 MOTION for Summary Judgment filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 11/28/2007)
129 APPENDIX re 128 Reply to Response to Motion, by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Appendix Tab 1, # 2 Appendix Tab 2, # 3 Appendix Tab 3, # 4 Appendix Tab 4, # 5 Appendix Tab 5, # 6 Appendix Tab 6, # 7 Appendix Tab 7)(SHEA, ROBIN) (Entered: 11/28/2007)
***Motions Submitted: 127 MOTION To Allow Brief Extension of Trial Date to Judge JUDGE WILLIAM L. OSTEEN JR.− (McCarty, Dianne) (Entered: 11/28/2007)

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11/28/2007
11/30/2007 11/30/2007 12/04/2007 12/04/2007 12/05/2007 12/05/2007 12/05/2007
12/10/2007
12/10/2007 12/10/2007 12/11/2007 12/18/2007 12/18/2007

130 REPLY, filed by Defendant DEL−AL ASSOCIATES, INC., to Response to 98 MOTION for Summary Judgment filed by DEL−AL ASSOCIATES, INC. (Attachments: # 1 Exhibit EXCERPTS FROM JUAN DEL−ALAMO'S DEPOSITION, # 2 Exhibit EXCERPTS FROM PLAINTIFF'S DEPOSITION)(PATTON, JEFFREY) (Entered: 11/28/2007)
131 RESPONSE (in form of a letter) filed by Plaintiff MARCELA OLVERA−MORALES re 127 MOTION To Allow Brief Extension of Trial Date filed by filed by MARCELA OLVERA−MORALES. Replies due by 12/17/2007. (McCarty, Dianne) (Entered: 11/30/2007)
132 RESPONSE TO PURPORTED MOTION BY PLAINTIFF TO EXCUSE PLAINTIFF'S PRESENCE AT THE PRE−TRIAL CONFERENCE filed by DEL−AL ASSOCIATES, INC. Replies due by 12/17/2007. (PATTON, JEFFREY) (Entered: 11/30/2007)
133 MOTION for Relief from Order Setting Settlement Conference by MARCELA OLVERA−MORALES. Responses due by 12/27/2007 (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A)(BROOKE, CAROL) (Entered: 12/04/2007)
134 RESPONSE re 127 MOTION To Allow Brief Extension of Trial Date filed by MARCELA OLVERA−MORALES. Replies due by 12/21/2007. (BROOKE, CAROL) (Entered: 12/04/2007)
***Motions Submitted: 133 MOTION for Relief from Order Setting Settlement Conference to Judge JUDGE WILLIAM L. OSTEEN JR.− (McCarty, Dianne) (Entered: 12/05/2007)
135 RESPONSE re 133 MOTION for Relief from Order Setting Settlement Conference filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 12/05/2007)
136 ORDER granting 133 Motion for partial relief from the Court's November 26, 2007, Order setting a settlement conference for December 19, 2007. It is therefore ORDERED that the Plaintiff's physical presence at the December 19, 2007, Settlement Conference be excused. Further that Plaintiff shall be available for consultation with her attorneys and the court by telephone at all times during the settlement conference, presently scheduled for December 19, 2007, at 2:00 p.m. EST. Signed by JUDGE WILLIAM L. OSTEEN JR., on 12/5/07. (Welch, Kelly) Modified on 12/18/2007 to edit Judge information (Welch, Kelly). (Entered: 12/05/2007)
137 FINAL PRETRIAL DISCLOSURES filed by DEFENDANTS INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., AND NORTH CAROLINA GROWERS ASSOCIATION, INC. (LOFTIS, WILLIAM) Modified on 12/11/2007 to include parties filing document (Welch, Kelly). (Entered: 12/10/2007)
138 FINAL PRETRIAL DISCLOSURES filed by DEFENDANT DEL−AL ASSOCIATES, INC.S. (PATTON, JEFFREY) Modified on 12/11/2007 to include party filing document (Welch, Kelly). (Entered: 12/10/2007)
139 FINAL PRETRIAL DISCLOSURES filed by CLASS PLAINTIFFS. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) Modified on 12/11/2007 to include party filing document (Welch, Kelly). (Entered: 12/10/2007)
140 (Amended) FINAL PRETRIAL DISCLOSURES filed by Defendant Del−Al Associates, Inc. (PATTON, JEFFREY) Modified on 12/12/2007 to reflect as Amended (Welch, Kelly). (Entered: 12/11/2007)
Motions No Longer Submitted to Judge Tilley 104 MOTION to Strike Expert Report of Sandy Smith−Nonini (Winchester, Robin) (Entered: 12/18/2007)
141 ORDER signed by JUDGE N. C. TILLEY, JR on 12/18/07, for the reasons to be stated in a Memorandum Opinion which will follow, International Labor Management Corporation, Inc. (ILMC) and North Carolina Grower's Association, Inc.s (NCGA) Motion for Summary Judgment [Doc. # 101 ] on the Title VII claims

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12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/18/2007 12/19/2007 12/19/2007
12/19/2007
12/21/2007 12/27/2007

is GRANTED as to ILMC, and those claims are DISMISSED. ILMC and NCGA's Motion for Summary Judgment [Doc. # 101 ] on the Title VII claims is DENIED as to NCGA. Del−Al Associates, Inc.s (Del−Al) Motion for Summary Judgment [Doc. # 98 ] as to the Title VII claims is GRANTED, and those claims are DISMISSED. The Court declines to exercise supplemental jurisdiction over the claims pursuant to the New York Human Rights Law, and those claims are DISMISSED WITHOUT PREJUDICE. (Welch, Kelly) (Entered: 12/18/2007)
142 CLASS PLAINTFFS' PRETRIAL BRIEF filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/18/2007)
143 DECLARATION of STEPHEN JONES IN SUPPORT filed by Plaintiff MARCELA OLVERA−MORALES re 142 Brief filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/18/2007)
144 TRIAL BRIEF by Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.(LOFTIS, WILLIAM) (Entered: 12/18/2007)
145 Proposed Voir Dire by Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 12/18/2007)
146 Proposed Jury Instructions by Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 12/18/2007)
147 Proposed Jury Instructions by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/18/2007)
148 Proposed Voir Dire by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/18/2007)
149 CERTIFICATE OF SERVICE by MARCELA OLVERA−MORALES re 147 Proposed Jury Instructions, 148 Proposed Voir Dire (STILLUFSEN, ANDREW) (Entered: 12/19/2007)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR. Settlement Conference held on 12/19/2007. Andrew Stillufsen, Carlene Marie McNulty, Carol Brooke and Timothy Casey appeared for the plaintiff. William Randolph Loftis, Jr., Robin Shea and Jeffrey Patton appeared for the defendants. Parties to prepare for trial. Class certification briefs (20 pages) and briefs regarding a stay (10 pages) are due by 5:00 p.m. on 1/4/2008. Replies (4 pages) to these briefs are due by 4:00 p.m. on 1/9/2008. Separate briefs (5 pages) regarding any new issues in the memorandum opinion by Judge Tilley are due by 5:00 p.m. on 1/4/2008. A status/settlement conference is set for 1/10/2008 at 9:30 a.m. in GSO3. Jury trial scheduled for 1/28/2008 at 9:30 a.m. in GSO3 before USDJ William L. Osteen, Jr. (Court Reporter Mary Jo Beck.) (McCarty, Dianne) (Entered: 12/19/2007)
Set Deadlines/Hearings: Briefs due by 1/4/2008 by 5:00 p.m. Reply Briefs due by 1/9/2008 by 4:00 p.m. Status/settlement Conference set for 1/10/2008 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. Jury Trial set for 1/28/2008 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (McCarty, Dianne) (Entered: 12/19/2007)
150 OBJECTIONS re 139 Final Pretrial Disclosures by Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 12/21/2007)
151 MOTION for Extension of Time to Extend Deadline for Briefing on Class Certification by MARCELA OLVERA−MORALES. (Attachments: # 1 Text of Proposed Order Approving Plaintiff's Motion for an Extension of Time For Class Certification Schedule, # 2 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/27/2007)

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12/27/2007 12/28/2007 01/01/2008
01/03/2008 01/04/2008 01/04/2008 01/04/2008 01/04/2008
01/04/2008 01/07/2008 01/07/2008 01/14/2008 01/14/2008

152 Objection to Pretrial Disclosures by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 12/27/2007)
***Motions Submitted: 151 MOTION for Extension of Time (Plaintiffs' Motion to Extend Deadline for Briefing on Class Certification) MOTION for Extension of Time (Plaintiffs' Motion to Extend Deadline for Briefing on Class Certification) to Judge JUDGE WILLIAM L. OSTEEN JR.− (McCarty, Dianne) (Entered: 12/28/2007)
153 MEMORANDUM OPINION signed by JUDGE N. C. TILLEY, JR on 1/1/08, that ILMC and NCGA's Motion for Summary Judgment [Doc. # 101 ] on the Title VII claims is GRANTED as to ILMC, and those claims are DISMISSED. ILMC and NCGA's Motion for Summary Judgment [Doc. # 101 ] on the Title VII claims is DENIED as to NCGA. Del−Al's Motion for Summary Judgment [Doc. # 98 ] as to the Title VII claims is GRANTED, and those claims are DISMISSED. The Court declines to exercise supplemental jurisdiction over the New York Human Rights Law claims, and those claims are DISMISSED WITHOUT PREJUDICE.(Welch, Kelly) (Entered: 01/02/2008)
154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment, by MARCELA OLVERA−MORALES. Responses due by 1/26/2008 (Attachments: # 1 Memorandum in Support of Motion for Reconsideration)(BROOKE, CAROL) (Entered: 01/03/2008)
155 CERTIFICATE OF SERVICE by MARCELA OLVERA−MORALES re 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment (BROOKE, CAROL) (Entered: 01/04/2008)
NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENT(S) as to CAROL BROOKE re 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment. Memorandum in support is filed as an attachment to the motion, please refile the Memorandum as a separate entry. (Welch, Kelly) (Entered: 01/04/2008)
156 MEMORANDUM filed by Plaintiff MARCELA OLVERA−MORALES re 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment. (Attachments: # 1 certificate of service)(BROOKE, CAROL) (Entered: 01/04/2008)
157 Joint MOTION for Trial DATE CONTINUANCE by JAMES ZAPPALA, INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., DEL−AL ASSOCIATES, INC., MARCELA OLVERA−MORALES, STERLING ONIONS, INC., ZAPPALA FARMS, LLC, ZAPPALA HOLDING COMPANY, LLC, ZAPPALA ENTERPRISES, INC. Responses due by 1/27/2008 (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 01/04/2008)
***Motions Submitted: 157 Joint MOTION for Trial DATE CONTINUANCE to Judge WILLIAM L. OSTEEN JR.− (Powell, Gloria) (Entered: 01/04/2008)
158 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 1/7/08, that the trial currently set for January 28, 2008, is continued to the April term. Further that the status conference scheduled for January 10, 2008, is cancelled. (Welch, Kelly) (Entered: 01/07/2008)
Reset Trial Date: Jury Trial set for 4/7/2008 09:30 AM in Unassigned Courtroom before UNASSIGNED JUDGE. (Welch, Kelly) (Entered: 01/07/2008)
159 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment; filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) Modified on 1/15/2008 to remove punctuation (Lee, Lisa). (Entered: 01/14/2008)
160 MEMORANDUM in Support of 159 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment; filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit A−Cited Unpublished Authority) (SHEA, ROBIN) Modified on 1/15/2008 to reflect accurate title of pldg. (Lee,

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01/28/2008
02/06/2008 02/13/2008 02/13/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/18/2008 02/18/2008
02/19/2008 02/20/2008

Lisa). (Entered: 01/14/2008)
161 Opposition to 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment; filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 2/10/2008. (Attachments: # 1 Exhibit One, # 2 Exhibit Two) (SHEA, ROBIN) Modified on 1/29/2008 to remove punctuation. (Lee, Lisa). (Entered: 01/28/2008)
162 Memorandum of Law in Opposition to 159 MOTION for Reconsideration of 141 Order on Motion for Summary Judgment; filed by MARCELA OLVERA−MORALES. Replies due by 2/19/2008. (Attachments: # 1 Exhibit 1, # 2 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 2/7/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 02/06/2008)
***Motions Submitted: 159 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment, to Judge JUDGE N. C. TILLEY, JR− (Winchester, Robin) (Entered: 02/13/2008)
***Motions Submitted: 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment, JUDGE N. C. TILLEY, JR− (Winchester, Robin) (Entered: 02/13/2008)
163 MOTION to Withdraw as Attorney DANIEL WERNER by on behalf of MARCELA OLVERA−MORALES. Responses due by 3/8/2008 (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(WERNER, DANIEL) (Entered: 02/14/2008)
164 MEMORANDUM filed by Plaintiff MARCELA OLVERA−MORALES re 163 MOTION to Withdraw as Attorney DANIEL WERNER filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(WERNER, DANIEL) (Entered: 02/14/2008)
165 DECLARATION filed by Plaintiff MARCELA OLVERA−MORALES re 163 MOTION to Withdraw as Attorney DANIEL WERNER filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(WERNER, DANIEL) (Entered: 02/14/2008)
166 REPLY MEMORANDUM OF LAW, filed by Plaintiff MARCELA OLVERA−MORALES, to Response to 154 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment, filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 02/14/2008)
167 MOTION to Strike 166 Reply to Response to Motion, by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Responses due by 3/12/2008 (SHEA, ROBIN) (Entered: 02/18/2008)
168 MEMORANDUM filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 167 MOTION to Strike 166 Reply to Response to Motion, filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 02/18/2008)
169 NOTICE of Trial Calendar Jury Trial set for 4/7/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 02/19/2008)
170 WITHDRAWAL of Motion by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 167 MOTION to Strike 166 Reply to Response to Motion, filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC., INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC. (SHEA, ROBIN) (Entered: 02/20/2008)

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02/20/2008 02/22/2008 02/25/2008 02/29/2008 03/04/2008 03/04/2008 03/07/2008 03/07/2008 03/12/2008
03/24/2008 03/26/2008

171 MEMORANDUM ORDER granting 154 Motion for Reconsideration and that the Title VII claim against ILMC as an employment agency is reinstated. (Wilson, JoAnne) (Entered: 02/21/2008)
172 NOTICE of Hearing: Settlement Conference set for 3/17/2008 03:00 PM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 02/22/2008)
173 REPLY to Response to 159 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment; filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit A − Phillips v. J.P. Stevens &Co., Inc., # 2 Exhibit B − Jamieson v. Valle Bank, # 3 Exhibit C − Cole v. Appalachian Power Co., # 4 Exhibit D − Yourse v. Miller, # 5 Exhibit E − Justice v. Saint Augustine's College) (SHEA, ROBIN) (Entered: 02/25/2008)
174 Joint MOTION for Relief from Order Setting Settlement Conference, for Rescheduling of Settlement Conference, and for Date Certain for Trial by MARCELA OLVERA−MORALES. Responses due by 3/24/2008 (Attachments: # 1 Exhibit A) (BROOKE, CAROL) (Entered: 02/29/2008)
***Motions Submitted: 174 Joint MOTION for Relief from Order Setting Settlement Conference, for Rescheduling of Settlement Conference, and for Date Certain for Trial to JUDGE N. C. TILLEY, JR− (Winchester, Robin) (Entered: 03/04/2008)
Telephone Notice held on 3/4/2008 with Atty. Brooke and Atty. Lofits rescheduling settlement conference. Settlement Conference set for 3/12/2008 03:00 PM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 03/04/2008)
175 Class Plaintiffs' Settlement Conference Statement filed by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/07/2008)
176 PRETRIAL DISCLOSURES by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 03/07/2008)
Minute Entry for proceedings held before JUDGE N. C. TILLEY, JR: Settlement Conference held on 3/12/2008. Atty. Stillufsen, Atty. Casey, Atty. Brooke, and Atty. McNulty present as counsel for plaintiff and Atty. Shea and Atty. Loftis present as counsel for defendant. Parties did not reach settlement. Trial Briefs, etc. due 3/26/2008. If the parties foresee the necessity to present any testimony by deposition, then by 4/14/2008, the party who is going to present evidence from deposition testimony should present to the other side what portions of the deposition they intend to publish. By 4/16/2008, the party receiving that should respond by designating what portions of the deposition they wish to present and what portions they feel complete whatever thought the other side has represented it wishes to present. By 4/18/2008, the party who originally made the designation should then counter designate. Pretrial Day set for 4/21/2008 at 9:30 a.m. in Greensboro, Courtroom No. 2. Objections to exhibits shall be filed with the court by 4/2/2008 and responses due 4/7/2008. Motions in Limine due 3/28/2008, responses due 4/4/2008 and replies due 4/11/2008. Motions to be heard on pretrial day 4/21/2008. Jury Trial shall commence on Tuesday, 4/22/2008 at 9:30 a.m. in Greensboro, Courtroom No. 2. (Court Reporter Calhoun.) (Winchester, Robin) (Entered: 03/13/2008)
177 WITHDRAWAL of Motion by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 104 MOTION to Strike Expert Report of Sandy Smith−Nonini filed by NORTH CAROLINA GROWERS' ASSOCIATION, INC., INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC. (SHEA, ROBIN) (Entered: 03/24/2008)
178 TRIAL BRIEF by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 03/26/2008)

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03/26/2008 03/26/2008 03/26/2008 03/26/2008 03/26/2008 03/26/2008 03/27/2008 03/28/2008
03/28/2008 03/28/2008 03/28/2008
03/28/2008 03/28/2008 03/28/2008 03/28/2008
04/02/2008

179 APPENDIX re 178 Trial Brief by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit) (SHEA, ROBIN) (Entered: 03/26/2008)
180 Proposed Jury Instructions by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 03/26/2008)
181 TRIAL BRIEF by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/26/2008)
182 FIRT AMENDED RULE 26(a)(3)PRETRIAL DISCLOSURES by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 3/27/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 03/26/2008)
183 Proposed Voir Dire by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/26/2008)
184 Proposed Jury Instructions by Plaintiff MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/26/2008)
185 Proposed Voir Dire by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 03/27/2008)
Telephone Notice held on 3/28/2008 with Atty. McNulty and Atty. Loftis Pretrial Conference tentatively set for 4/28/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. Jury Trial tentatively set for 4/29/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 03/28/2008)
186 MOTION in Limine by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Responses due by 4/21/2008 (SHEA, ROBIN) (Entered: 03/28/2008)
187 MEMORANDUM in Support of 186 MOTION in Limine. (SHEA, ROBIN) (Entered: 03/28/2008)
188 APPENDIX re 186 MOTION in Limine by Defendant INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., Cross Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (SHEA, ROBIN) (Entered: 03/28/2008)
189 MOTION in Limine by MARCELA OLVERA−MORALES. Responses due by 4/21/2008 (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/28/2008)
190 MEMORANDUM in Support of 189 MOTION in Limine; filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/28/2008)
191 MEMORANDUM in Support of 189 MOTION in Limine; filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/28/2008)
192 DECLARATION of ANDREW DAVIN STILLUFSEN IN SUPPORT of 189 MOTION in Limine; filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 03/28/2008)
193 TRANSCRIPT Status/Settlement Conference for dates of March 12, 2008 before Judge Tilley, re Settlement Conference,,,,, Court Reporter: Jane Calhoun. (Calhoun, Jane) (Entered: 04/02/2008)

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04/02/2008 04/02/2008 04/03/2008
04/03/2008 04/04/2008 04/04/2008 04/04/2008 04/04/2008
04/04/2008 04/04/2008
04/07/2008
04/07/2008 04/11/2008 04/11/2008

194 RESPONSE re 176 Pretrial Disclosures filed by MARCELA OLVERA−MORALES. Replies due by 4/21/2008. (BROOKE, CAROL) (Entered: 04/02/2008)
195 Objection to Pretrial Disclosures by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 04/02/2008)
Telephone Notice held on 4/3/2008 with Atty. Brooke and Atty. Loftis. Pretrial Conference tentatively set for 5/9/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. Jury Trial set for 5/12/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 04/03/2008)
196 TRANSCRIPT Settlement Conference for date of 12/19/2007 before Judge William L. Osteen, Jr., re Settlement Conference; Court Reporter: Mary Jo Beck. (Lee, Lisa) (Entered: 04/03/2008)
197 MEMORANDUM ORDER signed by JUDGE N. C. TILLEY, JR on 4/4/2008 that Motion for Reconsideration (Doc. # 159 ) is GRANTED, and the Title VII Claims against NCGA are DISMISSED. (Lee, Lisa) (Entered: 04/04/2008)
198 RESPONSE filed by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. re 189 MOTION in Limine filed by MARCELA OLVERA−MORALES. Replies due by 4/11/2008. (SHEA, ROBIN) (Entered: 04/04/2008)
199 RESPONSE in Opposition re 189 MOTION in Limine filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 4/11/2008. (SHEA, ROBIN) (Entered: 04/04/2008)
200 APPENDIX re 199 Response in Opposition to Motion by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(SHEA, ROBIN) (Entered: 04/04/2008)
201 RESPONSE in Opposition re 186 MOTION in Limine filed by MARCELA OLVERA−MORALES. Replies due by 4/21/2008. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 04/04/2008)
202 DECLARATION of ANDREW DAVIN STILLUFSEN IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE filed by Plaintiff MARCELA OLVERA−MORALES re 186 MOTION in Limine filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 04/04/2008)
203 RESPONSE to 194 Objections to Pretrial Disclosures; filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. Replies due by 4/24/2008. (SHEA, ROBIN) Modified on 4/8/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 04/07/2008)
204 RESPONSE by Class Plaintiff's to 195 Objection to Pretrial Disclosures (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 4/8/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 04/07/2008)
205 REPLY in Support of 186 MOTION in Limine; filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (SHEA, ROBIN) Modified on 4/14/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 04/11/2008)
206 APPENDIX to 205 Reply in Support of Motion in Limine, by Defendants INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (Attachments: # 1 Exhibit A) (SHEA, ROBIN) Modified on 4/14/2008 to reflect accurate title of pldg. (Lee,

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04/11/2008
04/11/2008
04/14/2008 04/16/2008 04/16/2008 04/17/2008 05/01/2008 05/15/2008
05/15/2008 08/05/2008 08/05/2008 08/06/2008 08/06/2008 08/22/2008

Lisa). (Entered: 04/11/2008)
207 REPLY MEMORANDUM of Law in Further Support of 189 Motion in Limine to Preclude Defendant from Questioning the Validity or Accuracy of Certain Deposition Exhibits; filed by Plaintiff MARCELA OLVERA−MORALES (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 4/14/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 04/11/2008)
208 DECLARATION of ANDREW DAVIN STILLUFSEN in Support of Class Plaintiffs' 207 Reply Memorandum of Law in Further Support of Motion in Limine to PReclude Defendants From Questioning the Validity or Accuracy of Certain Deposition Exhibits; filed by Plaintiff MARCELA OLVERA−MORALES (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 4/14/2008 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 04/11/2008)
209 DESIGNATION OF DEPOSITION TRANSCRIPT by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) (Entered: 04/14/2008)
210 DESIGNATION OF DEPOSITION TRANSCRIPT by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC. (SHEA, ROBIN) (Entered: 04/16/2008)
Case Reported Settled by Atty. Andrew Stillufsen and Atty. Loftis. Stipulation of Dismissal due by 5/16/2008. (Winchester, Robin) (Entered: 04/18/2008)
Telephone Notice held on 4/17/2008 Atty. Stillfusen and Atty. Loftis scheduling Status Conference. Status Conference set for 5/15/2008 02:00 PM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 04/18/2008)
Motions No Longer Submitted to Judge Tilley 159 MOTION for Reconsideration re 141 Order on Motion for Summary Judgment, (Winchester, Robin) (Entered: 05/01/2008)
Minute Entry for proceedings held before JUDGE N. C. TILLEY, JR: Status Conference held on 5/15/2008. Atty. Carol Brooke appeared as counsel for plaintiff and Atty. Randolph Loftis appeared as counsel for defendant. Fairness Hearing set for 8/25/2008 at 9:30 p.m. (Court Reporter Calhoun.) (Winchester, Robin) (Entered: 05/15/2008)
Set Hearing: Fairness Hearing set for 8/25/2008 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 05/15/2008)
211 MOTION to Continue Proposed Settlement Hearing by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 08/05/2008)
***Motions Submitted: 211 MOTION to Continue Proposed Settlement Hearing to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 08/05/2008)
212 ORDER signed by JUDGE N. C. TILLEY, JR on 8/5/2008 that the Defendant's 211 Motion for Continuance of Proposed Settlement Hearing is GRANTED, and that said matter be set on September 16, 2008 at 10:00 A.M. (Lee, Lisa) (Entered: 08/06/2008)
Set Hearings: Fairness Hearing set for 9/16/2008 10:00 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR.. (Winchester, Robin) (Entered: 08/06/2008)
213 JOINT MOTION for Preliminary Approval of class settlement by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., MARCELA OLVERA−MORALES. Responses due by 9/15/2008 (Attachments: # 1 Affidavit of Carol Brooke, # 2 Affidavit of Andrew Stillufsen, # 3 Text of Proposed Order, # 4 Exhibit Settlement Agreement) (LOFTIS, WILLIAM) (Entered: 08/22/2008)

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08/22/2008
08/22/2008 08/28/2008 09/16/2008
10/03/2008 10/09/2008 10/09/2008 10/10/2008
11/05/2008
02/25/2009 04/03/2009 04/06/2009 04/14/2009

214 JOINT MOTION and Memorandum To Approve notice to class and method for distributing notice to class members by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., MARCELA OLVERA−MORALES. Responses due by 9/15/2008 (Attachments: # 1 Exhibit Notice to Class Members of Proposed Settlement and Deadline for Objections, # 2 Text of Proposed Order) (LOFTIS, WILLIAM) (Entered: 08/22/2008)
215 JOINT MEMORANDUM of Points and Authorities in Support of 213 JOINT MOTION for Preliminary Approval of class settlement; filed by INTERNATIONAL LABOR MANAGEMENT CORPORATION, INC., NORTH CAROLINA GROWERS' ASSOCIATION, INC., MARCELA OLVERA−MORALES. (LOFTIS, WILLIAM) (Entered: 08/22/2008)
***Motions Submitted: 213 JOINT MOTION for Preliminary Approval of class settlement, 214 JOINT MOTION and Memorandum To Approve notice to class and method for distributing notice to class members to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 08/28/2008)
216 Minute Entry for proceedings held before JUDGE N. C. TILLEY, JR: Fairness Hearing held on 9/16/2008. Atty. Andrew Stillufsen and Atty. Carlene McNulty appeared as counsel for plaintiff. Atty. William Loftis appeared as counsel for defendant. The Court finds proposal objective, fair, and reasonable and will allow the parties to proceed with the proposal. Final approval of settlement will be held 8/4/2009 10:00 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR. The parties were notified telephonically of the court date for final approval.(Court Reporter Calhoun.) (Winchester, Robin) (Entered: 09/16/2008)
***Motions Referred: 163 MOTION to Withdraw as Attorney DANIEL WERNER to MAG/JUDGE P. TREVOR SHARP. (Winchester, Robin) (Entered: 10/03/2008)
217 (ENGLISH VERSION) NOTICE TO CLASS MEMBERS OF PROPOSED SETTLEMENTAND DEADLINE FOR OBJECTIONS signed by Judge Tilley on 10/9/2008. (Lee, Lisa) (Entered: 10/09/2008)
218 (SPANISH VERSION) NOTICE/AVISO DE CONCILIACIN A LOS MIEMBROS DE LA DEMANDA COLECTIVA Y DE LMITE DE TIEMPO PARA PRESENTACIN DE OBJECIONES. (Lee, Lisa) (Entered: 10/09/2008)
219 MEMORANDUM ORDER signed by JUDGE N. C. TILLEY, JR on 10/10/2008 that the Joint Motion for Preliminary Approval of Class Settlement (Doc. # 213 ) and Joint Motion to Approve Notice to Class and Method for Distributing Notice to Class Members (Doc. # 214 ) are GRANTED. A final hearing is scheduled for August 4, 2009 (Lee, Lisa) Modified on 2/25/2009 to add additional text (Lee, Lisa). (Entered: 10/10/2008)
220 ORDER signed by MAG/JUDGE P. TREVOR SHARP on 11/5/2008 that the motion (Docket No. 163 ) is GRANTED and that the appearance of the Workers' Rights Law Center of New York and Daniel Werner in this action is withdrawn and that the Clerk shall remove the Workers' Rights Law Center of New York, Inc. and Daniel Werner from the service matrix in this case. (Lee, Lisa) (Entered: 11/05/2008)
Set Deadlines/Hearings: Final Hearing set for 8/4/2009 10:00 AM before JUDGE N. C. TILLEY JR. Re: Proposed Settlement. (Lee, Lisa) (Entered: 02/25/2009)
221 Joint MOTION to Amend 218 Notice (Other), 217 Notice (Other); filed by MARCELA OLVERA−MORALES. Responses due by 4/27/2009. (Attachments: # 1 addendum to class notice, # 2 Text of Proposed Order) (BROOKE, CAROL) (Entered: 04/03/2009)
***Motions Submitted: 221 Joint MOTION to Amend 218 Notice (Other), 217 Notice (Other), Motions Submitted, to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 04/06/2009)
222 ORDER signed by JUDGE N. C. TILLEY, JR on 4/14/2009 Approving 221 Joint Motion to Amend Notice to Class Members. (Lee, Lisa) (Entered: 04/14/2009)

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07/10/2009 07/10/2009 07/10/2009 07/10/2009
07/13/2009 08/03/2009 08/03/2009 08/04/2009
08/04/2009

223 JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service)(STILLUFSEN, ANDREW) (Entered: 07/10/2009)
224 DECLARATION of CAROL L. BROOKE in Support of 223 JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 7/13/2009 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 07/10/2009)
225 DECLARATION of CHRISTA GEYER re 223 JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 7/13/2009 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 07/10/2009)
226 JOINT MEMORANDUM of Points and Authorities in Support of 223 JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT; filed by MARCELA OLVERA−MORALES. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 to Proposed Order, # 3 Certificate of Service) (STILLUFSEN, ANDREW) Modified on 7/13/2009 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 07/10/2009)
***Motions Submitted: 223 JOINT MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 07/13/2009)
227 EXHIBIT 1 to 224 Declaration, filed by Plaintiff MARCELA OLVERA−MORALES. (BROOKE, CAROL) Modified on 8/4/2009 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 08/03/2009)
228 EXHIBIT 2 to 224 Declaration, filed by Plaintiff MARCELA OLVERA−MORALES. (BROOKE, CAROL) Modified on 8/4/2009 to reflect accurate title of pldg. (Lee, Lisa). (Entered: 08/03/2009)
Minute Entry Final Hearing Approving Class Settlement held on 8/4/2009 before JUDGE N.C. TILLEY, JR. The Court adopts the finding earlier made in the preliminary approval for the reasons stated in the preliminary approval but with the additional reason that no objections have been received after proper notification was made. The Court determines that the settlement as set out, in the parties documentation is fair, adequate and reasonable to meet the claims involved in this case. Written Order forthcoming. (Court Reporter Jane Calhoun.) (Winchester, Robin) (Entered: 08/04/2009)
229 ORDER signed by JUDGE N. C. TILLEY, JR on 8/4/2009 that the Court adopts the reasoning set out in the memorandum order granting preliminary approval of the settlement agreement. [Doc. # 219 .] Additionally, in making its adequacy determination, the Court takes into consideration the lack of objection to the settlement agreement by any class member. Thus, for the foregoing reasons, the parties' Motion for Final Approval of Class Settlement [Doc. # 223 ] is granted, and the settlement agreement is approved. (Lee, Lisa) (Entered: 08/05/2009)

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