IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MIGUEL ANGEL FUENTES )

CORDOVA, et al., etc., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0462-WS-M

 )

R & A OYSTERS, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the parties’ joint motion for conditional 

certification of the settlement class and appointment of class counsel. (Doc. 174). 

The request is directed only to Count III of the amended complaint, (Doc. 20), 

which sets forth a claim for breach of contract. The proposed class, which mirrors 

precisely that sought in the amended complaint, (id. at 15), is as follows:

[A]ll those individuals admitted as H-2B temporary foreign workers 

pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by 

the Defendants in Alabama between October 8, 2008 until the filing 

date of the present action, and who were paid on an hourly basis. 

(Doc. 174-1 at 2).

The parties seek certification under Rules 23(a) and 23(b)(3). The 

requirements of these rules apply with at least equal vigor in the settlement-class 

context. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); accord 

Ortiz v. Fibreboard Corp., 527 U.S. 815, 848-49 (1999). 

The Rule 23(a) requirements for certification of any class action are: (1) 

numerosity; (2) commonality; (3) typicality; and (4) adequacy. The additional 

requirements for certification under Rule 23(b)(3) are: (5) predominance; and (6) 

superiority. Amchem, 521 U.S. at 613, 615. For reasons expressed below, the 

Court is satisfied that these requirements are satisfied here.

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To satisfy the numerosity requirement, the class must be “so numerous that 

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This 

determination is not made in a vacuum but with due regard to practical realities. 

Thus, for example, the Eleventh Circuit has upheld certification of a class of 31 

individuals, based in part on the “geographic dispersion” of the class members. 

Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 878 (11th Cir. 1986). 

The proposed class consists of 51 specific individuals.1 “[W]hile there is 

no fixed numerosity rule, generally less than twenty-one is inadequate, more than 

forty adequate, with numbers between varying according to other factors.” Cox v. 

American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal 

quotes omitted). The Court has construed Cox as standing for the proposition that 

“[n]umerosity is generally presumed when a proposed class exceeds 40 members.” 

LaBauve v. Olin Corp., 231 F.R.D. 632, 665 (S.D. Ala. 2005); see also County of 

Monroe v. Priceline.com, Inc., 265 F.R.D. 659, 667 (S.D. Fla. 2010) (a class of 59 

“is presumptively large enough to satisfy the numerosity requirement”). 

The proposed class consists of Mexican nationals, mostly residing in small 

towns or rural areas, with no command of the English language and with claims of 

small value. Under these circumstances, the Court finds the proposed class 

sufficiently numerous to render joinder of all class members impracticable. See 

Ramirez v. GLK Foods, LLC, 2014 WL 2612065 at *4 (E.D. Wis. 2014) (finding, 

in an action similar to that brought here, and for reasons echoing those addressed 

above, that a class of at least 35 satisfied the numerosity requirement); see also

Rosario-Guerro v. Orange Blossom Harvesting, 265 F.R.D. 619, 625 (M.D. Fla. 

2010) (in a similar lawsuit, and for similar reasons, finding that a class of as few as 

60 members satisfied the numerosity requirement).

 1 That the identity of the class members is known confirms that “the proposed 

class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 

F.3d 1302, 1304 (11th Cir. 2012) (internal quotes omitted).

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Commonality requires that the action “must involve issues that are 

susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811 (11th

Cir. 2001). That requirement is easily satisfied here, as the existence vel non of a 

contract (which the defendants dispute) is based on the same documents and 

conduct as to each class member.

“A class representative must possess the same interest and suffer the same 

injury as the class members in order to be typical under Rule 23(a)(3).” Murray, 

244 F.3d at 811. “A sufficient nexus is established if the claims or defenses of the 

class and the class representative arise from the same event or pattern or practice 

and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 

741 F.2d 1332, 1337 (11th Cir. 1984); accord Williams v. Mohawk Industries, Inc., 

568 F.3d 1350, 1357 (11th Cir. 2009). The named plaintiffs’ contract claim is 

indistinguishable from that of every other class member; it arises from the same 

pattern or practice (not reimbursing migrant workers their travel and tool 

expenses), addresses the same elements of uncompensated expense, and asserts a 

single legal theory (breach of contract). Only the dollar amount of damages 

varies, and “[d]ifferences in the amount of damages between the class 

representative and other class members d[o] not affect typicality.” Kornberg, 741 

F.2d at 1337. 

Adequacy “encompasses two separate inquiries: (1) whether any 

substantial conflicts of interest exist between the representatives and the class; and 

(2) whether the representatives will adequately prosecute the action.” Valley Drug 

Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) 

(internal quotes omitted). Named plaintiff Miguel Angel Fuentes Cordova plainly 

suffers from no conflict of interest, as his claim is both substantively identical to 

that of every class member and comparable in amount. The Court’s familiarity 

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with the plaintiffs’ tenacious prosecution of this action satisfies it that Cordova 

will adequately prosecute the action on behalf of the class.2 

Adequacy also includes an assurance the class representatives will 

vigorously pursue the interests of the class “through qualified counsel.” Valley 

Drug, 350 F.3d at 1189 (internal quotes omitted). Plaintiffs’ counsel is well 

qualified to pursue the interests of the class. (Doc. 174-5). 

The Court finds that common issues of law and fact predominate. As 

noted, the only individual issue is the quantity of damages per class member, and 

even that issue must be resolved by a simple formula. (Doc. 173-2 at 14). 

“Particularly where damages can be computed according to some formula, 

statistical analysis, or other easy or essentially mechanical methods, the fact that 

damages must be calculated on an individual basis is no impediment to class 

certification.” Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir. 2004) 

(footnotes omitted). Even less so here, where the values of every variable save 

one (the amount of expense incurred each season) are already known for each 

class member, and even the amount of expense incurred each season is already 

known (from previous resolution of the FLSA minimum wage claims) for almost 

half of the approximately 155 total seasons worked by the class members.

In view of the factors to be considered, it is clear that a class action is 

superior to other available methods for fairly and efficiently adjudicating the 

controversy. As Mexican nationals and residents, with small claims and no 

fluency in English and limited familiarity with the American legal system, the 

 2 Named plaintiff Leovardo Morales Inclan has, in addition to the contract claim, 

an FLSA retaliation claim (as do six other class members). The proposed settlement 

awards Inclan over 100 times as much on his retaliation claim as on his contract claim. 

(Doc. 173-2 at 27). Because it is unclear to the Court whether the amount available to 

settle the lawsuit’s contract claims may have been reduced by the amount allocated to 

settle the retaliation claims, and because Inclan’s financial interest in the contract claim is 

miniscule compared to that of most class members (and compared to his interest in his 

FLSA retaliation claim), (id. at 27-28), the Court declines to decide whether Inclan is an 

adequate class representative. Because Cordova is an adequate class representative, class 

certification may proceed nevertheless. 

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class members have little interest in individually controlling the prosecution of 

separate actions. There is no other litigation concerning the controversy. The 

state and federal courts of Alabama appear to offer the only potential domestic 

forum, and the defendants presumably would resist being haled into Mexican 

courts. Finally, the proposed settlement moots any potential difficulties in 

managing a class action. Amchem, 521 U.S. at 620.

For the reasons set forth above, and for the purposes of settlement only, the 

motion for conditional certification of the settlement class is granted. The Court 

conditionally certifies Count Three of this action as a class action on behalf of the 

following settlement class:

[A]ll those individuals admitted as H-2B temporary foreign workers 

pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by 

the Defendants in Alabama between October 8, 2008 until the filing 

date of the present action, and who were paid on an hourly basis. 

For the reasons set forth above, the plaintiffs’ deemed motion to appoint 

Miguel Angel Fuentes Cordova as class representative is granted, and Cordova is 

appointed as the representative of the class. To the extent the plaintiffs seek 

appointment of Leovardo Morales Inclan as additional class representative, their 

motion is denied.

“An order that certifies a class action must ... appoint class counsel ....” 

Fed. R. Civ. P. 23(c)(1)(B). After considering the matters identified in Rule 

23(g)(1)(A), and for the reasons set forth above, the Court concludes that the 

Southern Poverty Law Center is adequate class counsel. The motion to appoint 

class counsel is granted, and the Southern Poverty Law Center is appointed as 

class counsel to represent the settlement class. 

DONE and ORDERED this 12th day of September, 2016. 

 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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