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

The plaintiffs have filed a motion for preliminary certification of a 

collective action and for ancillary relief. (Doc. 7). The defendants have filed a 

response and the plaintiffs a reply, (Docs. 41, 42), and the motion is ripe for 

resolution.

According to the amended compliant, (Doc. 20), the plaintiffs are migrant 

agricultural workers who were employed by the defendants under temporary work 

visas. They seek, inter alia, a collective action to redress alleged violations of the 

Fair Labor Standards Act (“FLSA”).

“An action to recover the liability prescribed in either of the preceding 

sentences may be maintained against any employer ... in any Federal or State court 

of competent jurisdiction by any one or more employees for and in behalf of 

himself or themselves and other employees similarly situated.” 29 U.S.C. § 

216(b) (emphasis added). The FLSA thus allows the maintenance of a collective 

action, and notice to potential class members, if the represented employees are 

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“similarly situated” to the named plaintiffs. Hipp v. Liberty National Life 

Insurance Co., 252 F.3d 1208, 1218 (11th Cir. 2001).1

The Eleventh Circuit has recommended that trial courts consider 

certification under Section 216(b) in two stages. “The first determination is made 

at the so-called ‘notice stage.’ At the notice stage, the district court makes a 

decision — usually based only on the pleadings and any affidavits which have 

been submitted — whether notice of the action should be given to potential class 

members.” Hipp, 252 F.3d at 1218 (internal quotes omitted). “Because the court 

has minimal evidence, this determination is made using a fairly lenient standard, 

and typically results in ‘conditional certification’ of a representative class. If the 

court ‘conditionally certifies’ the class, putative class members are given notice 

and the opportunity to ‘opt-in.’” Id. (internal quotes omitted). At the second stage, 

in response to a motion to decertify made after discovery, the court makes a more 

informed factual determination on the similarly situated issue. Id. at 1218. While 

this two-tiered approach is only “suggest[ed],” not “require[ed],” id. at 1219, the 

parties agree to this approach. (Doc. 8 at 12; Doc. 41 at 1).

At the initial stage, “[t]he plaintiffs bear the burden of demonstrating a 

reasonable basis for their claim of class-wide discrimination.” Grayson v. K Mart, 

79 F.3d 1086, 1097 (11th Cir. 1996) (internal quotes omitted). “The plaintiffs may 

meet this burden, which is not heavy, by making substantial allegations of classwide discrimination, that is, detailed allegations supported by affidavits which 

successfully engage defendants’ affidavits to the contrary.” Id. (internal quotes 

omitted). “[T]he district court should satisfy itself that there are other employees 

... who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job 

 1 Section 216(b) applies to actions under the Age Discrimination in Employment 

Act (“ADEA”), and cases (such as Hipp) construing Section 216(b) in the ADEA context 

apply equally to cases brought under the FLSA. Albritton v. Cagle’s, Inc., 508 F.3d 

1012, 1014 n.1 (11th Cir. 2007). 

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requirements and with regard to their pay provisions.” Morgan v. Family Dollar 

Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) (internal quotes omitted). 

The proposed class is defined as “[a]ll non-supervisory workers 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, 2011 and 

the present, and who were paid on an hourly basis.” (Doc. 7 at 1-2). The 

defendants do not oppose conditional certification of this class, (Doc. 41 at 1), and 

the Court discerns no deficiency in the plaintiffs’ presentation. 

The plaintiffs seek the following forms of ancillary relief: (1) approval of 

their proposed notice; (2) direction to the defendants to produce the names, last

known permanent addresses, and telephone numbers (if any) of all potential opt-in 

plaintiffs; (3) establishment of a deadline for the filing of consent forms by those 

wishing to opt in to the collective action; and (4) direction to the defendants to 

post the notice at worker housing facilities. (Doc. 7 at 2; Doc. 8 at 2). 

The defendants have no objection to the language of the proposed notice. 

Nor do they oppose posting the notice at worker housing facilities. However, they 

request that the notice be translated into Spanish “by an independent, certified 

third party.” (Doc. 41 at 4). The plaintiffs agree to translation “by a federallycertified third party translator mutually agreed-upon by the Parties.” (Doc. 42 at 

2). 

The defendants do not object to producing the names and last known 

permanent addresses of potential class members, but they do object to producing 

telephone numbers. (Doc. 41 at 3-4). The plaintiffs respond that courts routinely 

require defendants to produce telephone numbers, including in migrant worker 

cases. (Doc. 42 at 3-5). Of the seven cases the plaintiffs cite, five ordered 

production of telephone numbers without objection or discussion, and one said 

nothing about telephone numbers. In the seventh, the Court without objection 

ordered production of telephone numbers but “only authorize[d] the Plaintiffs to 

provide potential opt-in workers with the proposed notice by first-class mail.” 

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Jimenez v. GLK Foods LLC, 2013 WL 3936928 at *5-6 (E.D. Wis. 2013). In 

particular, the Jimenez Court forbade plaintiffs’ counsel to send representatives to 

Mexico to distribute copies of the notice “and orally provide the information 

contained in the Notice to anyone who requests it.” Id. at *5. The Court noted its 

role of “insur[ing] that the information conveyed with the court’s authorization is 

neutral and unbiased,” a role it could not easily fulfill with oral communications. 

“Absent such control over the message, the court is reluctant to authorize such 

contact and thereby appear to place its imprimatur upon the information 

conveyed.” Id. 

In short, none of the authorities on which the plaintiffs rely actually support 

the proposition that the defendant should be compelled to produce telephone 

numbers over objection so that the plaintiffs may contact potential class members 

before they express any interest in participating in this action. 

The plaintiffs suggest they should be provided the telephone numbers 

because many potential class members “permanently reside in isolated rural 

regions of Mexico,” where “mail service is unreliable and slow.” Moreover, the 

majority of them “frequently change addresses and/or are absent from their 

permanent residences for months at a time due to the migrant labor they perform.” 

(Doc. 42-1 at 2-3). The plaintiffs conclude that, if they are not permitted to 

contact potential class members by phone, “it is very likely that many will never 

learn of the opportunity to participate in this lawsuit.” (Doc. 42 at 5). The Court 

finds this information too generalized and unsubstantiated to support a firm 

prediction that lack of telephone numbers dooms the collective action in advance.

The Court is aware from its independent research that courts have taken a 

variety of approaches to the disclosure of the telephone numbers of potential class 

members. Since the plaintiffs have not addressed them, and since the defendants 

thus have not had an opportunity to respond, the Court declines to select any 

approach for all cases. However, in this case the plaintiffs have sought a generous 

five-month period for filing of opt-in notices. The Court will establish this filing 

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period,2 which will provide the plaintiffs ample opportunity to contact potential 

class members by mail.

3

 Should the plaintiffs later return to Court with 

appropriate evidence that significant numbers of potential class members have not 

received written notice, and should they at that time offer a more compelling 

factual and legal presentation, they may attempt to persuade the Court to order 

production of telephone records. 

For the reasons set forth above, the plaintiffs’ motion for preliminary 

certification is granted, with the class defined as described above. The proposed 

notice is approved. The plaintiffs are ordered to utilize a federally certified third 

party translator, and the parties are ordered to confer in good faith and to agree on 

such a translator not later than 14 days following entry of this order. The 

defendants are ordered to produce to the plaintiffs, within 20 business days after 

entry of this order, a list of names and last known permanent addresses of all 

potential opt-in plaintiffs. The defendants are further ordered to post the 

translated notice at worker housing facilities. The deadline for filing opt-in 

notices is established as five months from the date on which the defendants furnish 

the plaintiffs the list of names and addresses. To the extent the plaintiffs seek any 

different or additional relief, their motion is denied. 

DONE and ORDERED this 27th day of February, 2015. 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 2 After the defendants objected to the proposed five-month period and countered 

with a 60-day proposal, the parties agreed to a 90-day period. (Doc. 42 at 2-3). The 

Court will nevertheless approve a five-month period because it is the defendants’ 

resistance to producing telephone numbers that potentially complicates the giving of 

notice.

3 The plaintiffs requested that the 90-day period commence once the notices have 

been mailed. (Doc. 42 at 2). Because the Court is approving the five-month period the 

plaintiffs originally requested, it will also utilize the starting date the plaintiffs then 

requested, viz., “the date on which the Defendants produce the names and addresses.” 

(Doc. 8 at 2). The parties agree that the defendants shall have 20 business days from 

entry of this order within which to supply this information. (Doc. 41 at 5; Doc. 42 at 2).

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