UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NARCISO JOSE ALEJANDRO

CASTELLANOS,

Plaintiff,

v.

WORLDWIDE DISTRIBUTION SYSTEMS

USA, LLC, et al.,

Defendants.

 /

Case No. 14-cv-12609

HONORABLE STEPHEN J. MURPHY, III

ORDER DENYING WITHOUT PREJUDICE 

MOTION TO CERTIFY CLASS (document no. 15)

Plaintiff Narciso Jose Alejandro Castellanos filed suit against his former employer,

Worldwide Distribution Systems USA, d/b/a Systems USA (“Systems”)1 and various

Systems employees, alleging civil RICO violations, Trafficking Victims Act and Fair Labor

Standards Act violations, and common law claims for constructive and actual fraud, and

breach of contract. Castellanos, a Mexican citizen, asserts that Systems misrepresented

employment as a computer systems analyst to secure him a TN visa and induce his

relocation. After arriving in the United States, Castellanos discovered that Systems only

offered opportunities for employment with third party clients. He contends that Systems

failed to compensate him, and failed to provide him employment. 

Castellanos filed suit intending to represent similarly situated plaintiffs in a class

action. Compl. ¶ 44, ECF No. 1. On February 20, 2015, he moved for class certification on

all claims but his allegations of Fair Labor Standards Act violations. Mot. Certify Class ¶ 5,

1

 Systems filed a counter-complaint for unjust enrichment and breach of contract, and

alleged that Castellanos breached his non-compete agreement when he accepted an offer

of employment with Quicken Loans; Systems also alleged he breached his confidentiality

agreement by disclosing job openings and other confidential information. ECF No. 12.

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ECF No. 15. He requested the Court certify a single class consisting of “foreign nationals,

who were offered full-time employment by defendant Systems USA, and who accepted

such employment, but who were not paid for varying amounts of time.” Id. ¶ 1. The Court

held a hearing on the motion on June 30, 2015. For the reasons stated below, the Court

will deny without prejudice Castellanos’ motion for class certification, and will permit

additional discovery. 

BACKGROUND

Systems is a staffing firm that provides Information Technology services to various

businesses, and it frequently hires foreign nationals to work on client projects. Resp. Mot.

Certify Class 3, ECF No. 18. In early 2013, Systems posted an internet ad for a computer

analyst position. Castellanos, a Mexican citizen and software engineer, answered the ad,

and interviewed with Systems’ Human Resources Manager, Defendant Jessica Rodriguez.

Id.; Compl. ¶ 9, ECF No. 1. Rodriguez recruited Castellanos to work for Systems. Compl.

¶ 26, ECF No. 1. To persuade Castellanos to travel to the United States, Systems allegedly

made various misrepresentations regarding the terms of employment, promising to pay

Castellanos a salary of $52,000 per year for three years. Mot. Certify Class, Letter of

Employment, ECF No. 15-1. Systems also provided Castellanos a letter of support to

include with his TN visa application. Id. Established by the North American Free Trade

Agreement (“NAFTA”), a TN visa enables Mexican and Canadian nationals to enter the

United States for work in designated professions on a temporary basis. See 8 C.F.R. §§

214.6(d)–(e) (requiring a person seeking a TN visa to present, among other criteria, a letter

of employment in the United States).

Castellanos asserts that he obtained a TN visa and incurred significant personal

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expense traveling to the United States. Compl. ¶ 15, ECF No. 1. He then discovered that

Systems offered only opportunities for employment, not actual jobs, and that he was

required to interview with third party clients for placement in positions. Id. ¶ 13. Castellanos

alleges that he was required to report to a Systems office Monday through Friday, was

minimally compensated for his time, and was informed that Systems would pay the offered

salary only when he secured a position with a third party client. Id. ¶¶ 13–14; Mot. Certify

Class 2, ECF No. 15. He claims that Systems perpetrated the same scheme against other

foreign nationals—pledging full-time employment and a salary that never materialized. 

Castellanos seeks to certify a class consisting of foreign nationals who were offered,

and accepted, employment by Systems, and who were not appropriately compensated.

Claims allegedly common to the class include human trafficking, state law claims for breach

of contract and fraud, and RICO violations. The alleged racketeering acts include visa

fraud, 18 U.S.C. § 1546, and wire and mail fraud, 18 U.S.C. §§ 1341 & 1343, premised on

the letters of employment submitted by Systems. 

STANDARD OF REVIEW

Civil Rule 23 governs class action lawsuits. A matter may proceed as a class action

in the name of the representative parties if (1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions of law and fact common to the class, (3)

the claims and defenses of the representative parties are typical of the claims and defenses

of the class, and (4) the representative parties will fairly and adequately protect the

interests of the class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (citing

Fed. R. Civ. P. 23(a)). A class must meet the above prerequisites, as well as fall within one

of the class types identified by Rule 23(b). Sprague v. Gen. Motors Corp., 133 F.3d 388,

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397 (6th Cir. 1998). The party seeking certification bears the burden of establishing that the

requirements for class certification are met. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079

(6th Cir. 1996). 

Courts have broad discretion in certifying a class, and must conduct a rigorous

analysis into whether the prerequisites of Rule 23 have been met. Beattie v. CenturyTel,

Inc., 511 F.3d 554, 560 (6th Cir. 2007). In reviewing a motion for class certification, the

court does not evaluate the merits of the plaintiff’s claims, but accepts as true the

allegations in the complaint. The court, however, may need “to probe behind the pleadings

before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457

U.S. 147, 160 (1982). “[O]rdinarily the determination should be predicated on more

information than the pleadings will provide.” Am. Med. Sys., 75 F.3d at 1079 (quoting

Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974)). 

DISCUSSION

A review of Castellanos’ brief in support of class certification suggests that it is

premature to consider certification until a further definition of the proposed class is

accomplished with the aid of discovery. See id. at 1086 (explaining that a court should

delay determination of a motion for class certification “pending discovery if the existing

record is inadequate for resolving the relevant issues”). 

Relying on the overall number of TN visas sponsored by Systems, Castellanos

contends that as many as seventy-three individuals may qualify for the class. In support,

he offers a list of proposed class members’ names, and a selection of several TN visa

letters of employment. Mot. Certify Class, Exhibits A–B, ECF No. 15-1. Based on the

standardized text of the letters, Castellanos argues that Defendants engaged in

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consistently deceptive conduct. He contends that Systems misrepresented its intention to

hire class members, and failed to pay individuals upon their arrival in the United States. Id.

at 4. Castellanos, however, provides little support for his assertions aside from the form TN

letters. While he argues that the letters evidence Defendants’ misrepresentations,

Castellanos fails to allege whether the individuals who received the letters were similarly

denied employment or compensation. 

Castellanos maintains that Defendants’ misrepresentations of actual employment

form a common scheme central to each class members’ claims, and asserts that inquiry

into details such as eventual employment and compensation are “minor points.” Mot Certify

Class 7, ECF No. 15-1. But the inquiry into compensation is necessary to the Court’s

determination of numeroaity because the proposed class is comprised of individuals “who

were not paid for varying amounts of time.” Mot. Certify Class 1, ECF No. 15. A list of

individuals that obtained TN visas through Systems to evidence the class is therefore overly

broad. 

Reference to the total number of individuals conceivably harmed is insufficient to

prove numerosity. See Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005)

(explaining that identifying the “absolute maximum number of plaintiffs that could be in any

class action” is not probative of the number reasonably likely to have suffered harm, and

finding that “such an unrefined measure . . . is too speculative for purposes of the

numerosity requirement”). Castellanos offers no evidence or allegations that demonstrate

whether Defendants similarly failed to hire and compensate other individuals. The Court

cannot presume that each of the seventy-three individuals sponsored for TN visas received

deceptive communication. Indeed, in their response brief, Defendants assert that only

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eleven of the seventy-three individuals sponsored for TN visas were neither placed on a

project nor hired by Systems. Resp. Mot. Certify Class 5, ECF No. 18.2 A class of eleven

members, rather than seventy-three, is likely amenable to joinder and would fail to satisfy

the numerosity requirement. See Crawford v. TRW Auto. U.S., LLC, No. 06-14276, 2007

WL 851627, at *3 (E.D. Mich. Mar. 21, 2007) (“[I]t generally is accepted that a class of 40

or more members is sufficient to satisfy the numerosity requirement.”); Cox v. Am. Cast.

Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (noting that there is no fixed

numerosity requirement, but “generally less than twenty-one is inadequate [and] more than

forty [is] adequate”).

In ruling on class certification, the Court is required to conduct a rigorous analysis and

“probe behind the pleadings” before making a determination. See Am. Med. Sys., 75 F.3d

at 1079. “[C]lass determination should be predicated on evidence presented by the parties

concerning the maintainability of the class action.” In re Whirlpool Corp. Front-Loading

Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013). At present, the record before

the Court is undeveloped and insufficient to decide class certification. After reviewing the

factual record and entertaining oral argument, the Court finds that additional discovery is

necessary to determine the proposed class size. The Court will deny Castellanos’ motion

to certify class without prejudice, and provide additional time for discovery relevant to

meeting the requirements of Civil Rule 23. 

 2 The Court notes that Defendants offer no evidence, aside from a list of names, for the

assertion that Systems hired and paid sixty-two of the seventy-three individuals it

sponsored for TN visas. Resp. Mot. Certify Class 5, ECF No. 18. Defendants also present

unsupported claims that forty percent of the individuals sponsored by Systems started a

project within fourteen days of arriving in the United States, see id., and twenty-three

individuals were approved by a third-party client while still in Mexico. 

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ORDER

WHEREFORE, it is hereby ORDERED that Castellanos’ Motion to Certify Class is

DENIED WITHOUT PREJUDICE.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: August 19, 2015

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on August 19, 2015, by electronic and/or ordinary mail.

s/Carol Cohron 

Case Manager

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