UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

__________________________________________

)

SAUL LOPEZ-MENDOZA, et al., )

)

)

Plaintiffs, ) CIVIL ACTION

)

vs. ) No. 4:03cv321-RH/WCS

)

RICHARD KENDA, et al., )

)

Defendants. )

__________________________________________)

FINAL JUDGMENT

This case came before the magistrate judge on July 6, 2005, at a hearing to determine the

lawfulness, reasonableness, adequacy and fairness of the proposed class settlement in this action.

On April 13, 2005, the magistrate judge entered an order directing that notice be given to

members of the certified class in this case, said notice advising the class members of the terms of

the proposed settlement, of their right to object to it and of the time and place of this hearing.

The magistrate judge heard and considered the presentations of counsel regarding the notice to

the class through Spanish written media and the total lack of responses to this class notice. The

magistrate judge was advised that the parties have agreed to the entry of an order they prepared

that is substantively identical to this Final Judgment. The magistrate judge entered a report and

recommendation concluding that such an order should be entered. No objections to the report

and recommendation have been filed, and the deadline for objections has passed.

Based on the foregoing, the Court hereby FINDS that:

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A. The terms and provisions of this Court's order of April 13, 2005 in this case have been

carried out by the parties.

B. The terms of the settlement contemplated herein are found in the Mediation Settlement

Agreement previously filed with the Court, and the terms thereof are incorporated herein and

made a part hereof.

C. The notice to the class was appropriate, given the circumstances of this case and the

paucity of payroll information and addresses of the individual class members, and the limited

Spanish language mass media available in the area of the Defendants’ operations;

D. The settlement is lawful, fair, just, reasonable and adequate after considering among

other things that the settlement was reached after good faith, arms-length negotiations by

experienced and capable counsel for the class and in the absence of collusion; the limited

financial resources of the Defendants; the likelihood of the Plaintiffs’ success in obtaining the

relief prayed for; the fact that all of the settlement funds will be paid to Plaintiffs and the other

members of the class, with the Plaintiffs’ counsel foregoing any claim for costs or attorney’s fees;

the cost, complexity and duration of litigation if pursued; the disruption of the Defendants’

business and other matters bearing on the best interest of the parties, including the absence of

objection by any class member or potential class member to the settlement contemplated by the

Mediation Settlement Agreement. In particular, the Court find that the injunctive relief obtained

through the Mediation Settlement Agreement provides important benefits and protections for any

farmworkers who may be employed by Defendants Richard Kenda and/or Beverly Kenda in the

future, and assists governmental agencies in their oversight of the Defendants’ activities in the

future.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

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1. A settlement class consisting of the following persons is permanently and finally

certified under Rule 23(e) of the Federal Rules of Civil Procedure, the Court finding that the

requirements of that rule are met:

All migrant agricultural workers, as defined by the AWPA, 29

U.S.C. § 1802(8), who were employed by the Defendants during

the 2003 vegetable season on the Defendants’ operations in or near

Madison County, Florida and who were furnished with housing

and/or transportation by the Defendants for which withholdings

were made from their wages.

2. The settlement contemplated in the Mediation Settlement Agreement is finally

approved and the parties are directed to continue to perform in compliance with the terms, and

subject to all conditions thereof;

3. As an essential and integral part of the parties’ settlement, the Court enters the

following injunction, to which the Defendants have consented. This injunction is intended to

ensure that if Defendants Richard Kenda, Beverly Kenda or Virginia Oro engage in any future

farm labor contracting activities, as defined by 29 U.S.C. § 1802(6), they shall fully comply with

the requirements of the Migrant and Seasonal Agricultural Worker Protection Act and the Florida

Migrant Labor Housing Act. The Migrant and Seasonal Agricultural Worker Protection Act

defines “farm labor contracting activities” as recruiting, soliciting, hiring, furnishing, transporting

or employing migrant or seasonal agricultural workers. Accordingly, it is ordered that in the

course of any employment of or farm labor contracting activities with any seasonal or migrant

agricultural worker, Defendants Richard Kenda, Beverly Kenda and Virginia Oro shall do the

following:

a. With respect to each migrant or seasonal agricultural

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worker, make, keep and preserve for three years data

showing for each workweek the following information: the

worker’s name, permanent address if provided by the

employee, Social Security number, total hours worked on a

daily basis, the piece-rate or hourly rate paid, the number of

piece-work units earned, the total pay period earnings, and

any withholdings from wages and the purpose for each such

withholding; 

b. Provide to every migrant or seasonal agricultural worker at

each payday a written statement relating to his or her

employment during the pay period showing the following

information: the employer’s name, address and Internal

Revenue Service employer identification number, total

hours worked on a daily basis, the piece-rate or hourly rate

paid, the number of piece-work units earned, the total pay

period earnings, and any withholdings from wages and the

purpose for each such withholding; 

c. Pay when due all wages earned by any migrant or seasonal

agricultural worker. For purposes of this agreement,

“wages” includes any Social Security taxes due under the

Federal Insurance Contributions Act and any

unemployment compensation taxes due under federal or

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state law. Richard Kenda, Beverly Kenda and Virginia Oro

shall annually file with the Internal Revenue Service W-2

forms reporting the earnings of all migrant and seasonal

agricultural workers employed by them the prior year,

unless such employment was service performed by a

foreign agricultural worker lawfully admitted to the United

States on a temporary basis to perform agricultural labor, as

defined by 26 U.S.C. § 3121(b)(1);

d. Refrain from transporting or causing the transportation of

any migrant or seasonal agricultural worker in any vehicle

that does not conform to safety standards promulgated by

the Secretary of Labor under the Migrant and Seasonal

Agricultural Worker Protection Act. For purposes of this

section, “causing the transportation” is to be interpreted and

applied consistent with the decision in Saintida v. Tyre, 783

F.Supp. 1368, 1373 (S.D. Fla. 1992).

e. Refrain from transporting or causing the transportation of

any migrant or seasonal agricultural worker in any vehicle

that is not insured as required by regulations promulgated

by the Secretary of Labor under the Migrant and Seasonal

Agricultural Worker Protection Act. For purposes of this

section, “causing the transportation” is to be interpreted and

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applied consistent with the decision in Saintida v. Tyre, 783

F.Supp. 1368, 1373 (S.D. Fla. 1992). To satisfy this

requirement, the vehicle must have liability insurance in the

amounts required by the regulations implementing the

Migrant and Seasonal Agricultural Worker Protection Act,

either/or be covered for purposes of the transportation by a

worker’s compensation policy that is in full force and

effect;

f. Refrain from permitting any migrant agricultural worker to

occupy any housing or real property they own or control

without first obtaining a certification from an appropriate

health authority that the facility complies with applicable

state and federal safety and health standards;

g. Ensure that any housing or real property they own or

control that is occupied by any migrant agricultural worker

complies with applicable state and federal regulations.

However, it is recognized by the parties that each worker is

responsible for personal hygiene, proper cleaning of

personal area, kitchen area or bathroom, mattresses on bed

frames and other general safety and health regulations;

h. Refrain from resisting, opposing, impeding or interfering

with any official of the United States Department of Labor

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assigned to perform an investigation or inspection under

either the Migrant and Seasonal Agricultural Worker

Protection Act or the Fair Labor Standards Act. Richard

Kenda, Beverly Kenda and Virginia Oro shall not bar the

entry onto their property or operations of any official of the

United States Department of Labor performing an

investigation or inspection under either the Migrant and

Seasonal Agricultural Worker Protection Act or the Fair

Labor Standards Act. Nothing in this provision shall

prevent Richard Kenda, Beverly Kenda or Virginia Oro

from using videotape or still pictures to record the

investigation. This provision does not bar the Defendants

from requiring that these inspectors or investigators check

in with the farm office. Any interviews conducted by

investigators or inspectors shall be on the employees’ time,

provided that such practices are consistent with the

requirements of the Fair Labor Standards Act;

i. Refrain from resisting, opposing, impeding or interfering

with any official of the Madison County Health Department

or the Florida Department of Health assigned to perform an

investigation or inspection under the Florida migrant

housing act, Fla. Stat. §§ 381.008, et seq., including those

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provisions relating to provision of toilets, handwashing

facilities and drinking waters at the place of employment. 

Richard Kenda, Beverly Kenda and Virginia Oro shall not

bar the entry onto their property or operations of any

official of the Madison County Health Department or the

Florida Department of Health performing an investigation

or inspection under the Florida migrant labor housing act,

Fla. Stat. §§ 381.008, et seq., and/or Florida statutes or

regulations relating to the provision of field toilets,

handwashing facilities and drinking water to agricultural

workers. Nothing in this provision shall prevent Richard

Kenda, Beverly Kenda or Virginia Oro from using

videotape or still pictures to record the investigation. This

provision does not prevent the Defendants from requiring

that such inspectors or investigators check in with the

office. Any interviews conducted by investigators or

inspectors shall be on the employees’ time, provided that

such practices are consistent with the Fair Labor Standards

Act;

j. With respect to any migrant labor camp or residential

migrant housing facility they own or control, refrain from

resisting, opposing, impeding or interfering with the entry

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onto said facility by any invited guest or other authorized

visitor, as defined by Fla. Stat. § 381.008(6). This

provision expressly includes any employee of a non-profit

legal assistance organization. If an invited guest or

authorized visitor comes to the property or operations, the

Defendants may insist that the invited guest or authorized

visitor check in with the farm office first before entering the

workplace or the workers’ living quarters. The visit of an

invited guest or authorized visitor should not be during

work hours. If the visit occurs during work hours, the

employee shall not remain “on the time clock” during the

visit. If someone has not checked in with the office and is

found on the property, a trespass warning may be issued.

4. Judgment is hereby entered against Defendants Richard Kenda and Beverly Kenda,

jointly and severally, in the amount of $48,000.00, as provided for in the parties’ Mediation

Settlement Agreement. This judgment amount consists of $3,000.00 to be paid to the named

Plaintiffs and $45,000 to be paid to the members of the certified class. Post-judgment interest

shall accrue on these judgment amounts at lawful rate under Florida law. These sums are to be

paid to the client trust account of Florida Legal Services, Inc., counsel for the Plaintiffs.

5. As provided in the parties’ mediation Settlement Agreement, the parties shall bear their

own costs in this action, except as provided for in Paragraph 5(c), below. 

6. The portion of the judgment to be paid to the class members pursuant to Paragraph 4

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and the parties’ Mediation Settlement Agreement shall be distributed as provided in this

paragraph. 

a. When the damages due the class under Paragraph 4 are paid as

provided for in that paragraph, counsel for the Plaintiffs shall notify in writing all

class members for whom addresses are available. In addition to addresses

obtained through discovery, outreach or in response to the class notice, counsel for

the Plaintiffs shall contact the Defendants to determine whether they have

knowledge of the current whereabouts of any class members, including any

individual class members who may be still employed at Kenda Farms. The class

members shall be directed to submit a claim form to counsel for the Plaintiffs

within 180 days of the date on which the damages due the class are paid to the

Plaintiffs’ counsel.

b. After the conclusion of the 180 day period set out in the preceding

subparagraph, the class damages shall be divided equally among the class

members filing valid and verifiable claims. A maximum of two thousand dollars

($2,000.00) shall be paid to any class member from the $45,000 in damages paid

to the class.

c. If a portion of the class damages remain undistributed following the

payments described in the preceding subparagraph, counsel for the Plaintiffs shall

notify the Court. At that juncture, the Plaintiffs may petition the Court for this

unpaid amount to be used to reimburse their counsel for out-of-pocket expenses

incurred in this litigation, including deposition, travel and lodging expenses

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related to this action. If any portion of the class damages remain after the

Plaintiffs’ counsel’s verifiable out-of-pocket costs have been paid, that sum shall

be paid to a non-profit service organization assisting immigrant farmworkers from

Mexico. The Court would invite the suggestion of the Plaintiffs’ counsel in

identifying such a non-profit organization.

7. Defendants Richard Kenda, Beverly Kenda and Virginia Oro are released from all

damage and other claims of the Plaintiffs, and all members of the class, their heirs,

representatives, agents, attorneys, successors, or assigns, or anyone claiming on their behalf,

which have been raised or asserted in this action; and,

8. This action is hereby dismissed with prejudice, except to reserve jurisdiction to enforce

the terms of this final order and the parties’ Mediation Settlement Agreement. The Court

expressly reserves jurisdiction to enforce through its contempt powers or otherwise the provisions

of its injunction hereby entered, and especially those provisions of the injunction relating to entry

onto the Defendants’ property by officials of the United States Department of Labor, Madison

County Health Department or the Florida Department of Health.

DONE AND ORDERED at Tallahassee, Florida this 26th day of July, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

cc: Gregory S. Schell, Esq.

Richard Kenda

Beverly Kenda

Virginia Oro

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