United States District Court, D. New Mexico
ESTEBAN ALFARO-HUITRON, ELEAZAR GARCIA-MATA, JOSE ANTONIO GARCIA-MATA, JUAN GUZMAN, JOSE GERARDO JASSO, RAUL JASSO-CERDA, ISMAEL MARTINEZ GONZALEZ, ENRIQUE ROJAS-TORRES, LAZARO ROJAS-TORRES, TRINIDAD SANTOYO-GARCIA PEDRO TAMEZ, ANGELA TREJO, EFRAIN TREJO, SANTOS TREJO, and YANETH TREJO, Plaintiffs,
WKI OUTSOURCING SOLUTIONS, LLC, JAIME CAMPOS, CERVANTES AGRIBUSINESS, CERVANTES ENTERPRISES, INC., RJF FARMS, INC., RONNIE J. FRANZOY, TIERRA DE DIOS FARMS, LLC, RIO VALLEY CHILI INC., LACK FARMS, INC. and SKYLINE PRODUCE, LLC Defendants.
MEMORANDUM OPINION AND ORDER GRANTING THE CERVANTES
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
matter is before the Court on Defendants Cervantes
Agribusiness' and Cervantes Enterprises, Inc.'s
(“Cervantes Defendants”) joint Motion for Summary
Judgment [ECF No. 233]. Plaintiffs are United States citizens
or lawful permanent residents who were given hiring priority
through the federal H-2A program to provide manual labor on
fields and land owned by the Cervantes Defendants during the
2011-2012 harvest seasons. The farm labor contractor who
recruited and hired Plaintiffs - Defendants WKI Outsourcing
Solutions, LLC (“WKI”) and its owner Jaime Campos
- never actually furnished Plaintiffs to work for the
Cervantes Defendants. Citing a drought, Campos cancelled
Plaintiffs' work contracts at the last minute. Plaintiffs
allege there was no such unusual drought; the real reason
Campos cancelled their contracts was because he realized
there were too many qualified U.S. workers, so he would not
be able to access foreign laborers from Mexico, which was
Defendants' alleged goal all along.
on the theory that the Cervantes Defendants and WKI
“jointly employed” Plaintiffs, they sued the
Cervantes Defendants under the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C. §§
1801-1854 (“AWPA”) contending, among other
things, that they were equally liable for WKI's
cancellation of their work contracts. After carefully
considering the motion, briefs, and relevant law, the Court
concludes that the Cervantes Defendants' motion should be
granted because they did not jointly employ Plaintiffs.
the facts necessary to resolve the pending motion for summary
judgment are set forth in the Court's Memorandum Opinion
and Order previously granting summary judgment to the
Cervantes Defendants, which are either undisputed or
construed in the light most favorable to Plaintiffs as the
non-movants. See Mem. Op. and Order 1-11, ECF No.
232 (“Order”). The Court need not repeat those
facts herein but adopts them by reference for the purposes of
resolving the motion for summary judgment and presents the
following additional material facts.
The H-2A Program
the H-2A program, WKI had to give hiring priority to
domestic, or “U.S. workers” like Plaintiffs
before petitioning for foreign workers. An employer like WKI
could hire foreign guest laborers under the H-2A visa program
only if it could certify that “there are not sufficient
workers who are able, willing, and qualified” to
perform the work and employing foreign workers “will
not adversely affect the wages and working conditions of
workers in the United States similarly employed” 8
U.S.C § 1188(a)(1). An agricultural employer or its
agent works with the State Workforce Agency to recruit U.S.
workers on an intrastate and interstate basis. See
20 C.F.R § 655.154(a). If an employer has satisfied the
recruitment assurances and other promises identified in 20
C.F.R. § 655.161, then the Secretary of Labor can grant
a request to hire temporary foreign agricultural labor.
See 8 U.S.C. § 1188. The H-2A regulations
require an employer to provide baseline benefits to both
domestic and foreign H-2A workers. See 20 C.F.R.
§ 655.122(a). “By requiring that the employer
provide these baseline benefits, the regulations ensure that
foreign workers will not be appear more attractive to the
employer than domestic workers, thus avoiding any adverse
effects for domestic workers.” Garcia-Celestino v.
Ruiz Harvesting, Inc., 843 F.3d 1276, 1285 (11th Cir.
2016) (“Garcia-Celestino I”).
the program, employers must submit to the Department of Labor
an application commonly referred to as a ‘clearance
order' detailing the terms and conditions of their
prospective workers' employment.”
Garcia-Celestino v. Ruiz Harvesting, Inc., 898 F.3d
1110, 1116 (11th Cir. 2018) (“Garcia-Celestino
II”). “By federal regulation, the clearance
order becomes the employees' work contract by default if
the employer does not draw up a separate contract for
them.” Id. (citing 20 C.F.R. §
case, WKI used its clearance order to recruit and hire
Plaintiffs, and because no separate contract was drawn up,
the clearance order served as the work contract between WKI
and Plaintiffs. Under the terms of the clearance order WKI
advertised the jobs with an hourly wage of $9.71 per hour of
labor and that rate would have to be paid to all workers who
filled the positions, whether or not the employers ultimately
hired domestic or foreign H-2A workers. See 20
C.F.R. § 655.122(a).
lawsuit, Plaintiffs' basic contention is that Campos and
the Defendants, including the Cervantes Defendants, always
intended to exploit the H-2A program to access guest laborers
from Mexico because they believed they would work harder for
less money. When it became apparent that Campos would not be
able to provide Mexican workers, he cancelled Plaintiffs'
work contracts under the pretense of a drought.
addition to the Cervantes Defendants, WKI and Campos entered
into farm labor contracts under the H-2A program with five
other farms based in southern New Mexico - Defendants RJF
Farms, Inc. and its owner Ronnie J. Franzoy, Tierra de Dios
Farms, LLC, Lack Farms, Inc., Rio Valley Chili, Inc., and
Skyline Produce, LLC. Plaintiffs voluntarily dismissed claims
against RJF Farms, Inc., Ronnie J. Franzoy, Rio Valley Chili,
Inc., Lack Farms, Inc., and Skyline Produce, LLC.
See ECF. Nos. 71, 146, 158.
the Cervantes Defendants, Plaintiffs alleged four causes of
action against them for various statutory violation of the
AWPA, fraud, breach of contract, and civil conspiracy.
See Pls.' First Am. Comp., ECF. No. 103. In May
and July 2016, the Cervantes Defendants moved for, and the
Court granted, summary judgment to the Cervantes Defendants,
concluding that no reasonable jury could find them liable to
Plaintiffs on those theories of liability.
Defendants WKI and Tierra, they never obtained legal counsel
as required for entity parties. See D.N.M.LR-Civ.
83.7. WKI attempted to answer pro se in conjunction
with Defendant Jaime Campos, WKI's owner. See
ECF. No. 55. The Court interpreted that answer as that of
Campos', not WKI's. See ECF No. 69. On
September 3, 2015 the Honorable William P. Lynch, United
States Magistrate Judge, entered a Notice of Proposed Entry
of Default Judgment, warning Tierra and WKI that unless they
“retain counsel and submit answers filed by an attorney
by September 25, 2015, [he would] recommend to the District
Judge that default judgment be entered against them and in
favor of the Plaintiffs.” ECF No. 128. Tierra and WKI
never heeded that warning, so on October 7, 2015 the Clerk of
Court filed the Clerk's Entry of Default Judgment against
Tierra and WKI for having failed to plead or otherwise
defend. See ECF Nos. 135, 136. Plaintiffs never
moved for a damages hearing, and no subsequent litigation
concerning the Clerk's Entry of Default has occurred
since that October 7, 2015 entry. To date, WKI and Tierra
have not obtained legal counsel.
Jaime Campos, pro se, also appears to have stopped
participating in the litigation. His last docket filing was
on October 10, 2015. See ECF No. 137. He failed to
appear at a status conference before Judge Lynch on March 2,
2016, although he did participate in a mid-March 2016
deposition. See ECF Nos. 161, 168.
STANDARD OF REVIEW
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-50 (1986). A fact is considered
material if it “might affect the outcome of the suit
under the governing law.” Anderson, 477 U.S.
at 248-50. An issue is “genuine” if the evidence
is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. See Tabor v. Hilti,
Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). In analyzing
a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most
favorable to the nonmovant. See Jones v. Norton, 809
F.3d 564, 573 (10th Cir. 2015). When “the moving party
does not bear the ultimate burden of persuasion at trial, it
may satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an
essential element of the nonmovant's claim.”
Cassara v. DAC Serv., Inc., 276 F.3d 1210, 1212
(10th Cir. 2002). The burden then shifts to the opposing
party to come forward with admissible evidence to create a
genuine issue of material fact on that element. See
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991).
Court next analyzes whether the Cervantes Defendants and WKI
jointly employed Plaintiffs such they are equally liable for
WKI's cancellation of their work contracts.
The AWPA and Joint Employment Principles
Paragraph 142(b) of Plaintiffs' First Amended Complaint,
Plaintiffs sue the Cervantes Defendants under 29 U.S.C.
§ 1822(c) on the theory that they are liable for
WKI's and Campos' last minute cancellation of their
work contracts. Section 1822(c) provides that “[n]o
farm labor contractor, agricultural employer, … shall,
without justification, violate the terms of any working
arrangement made by that contractor, employer, or association
with any migrant agricultural worker.” Plaintiffs
contend that the “working arrangement” at issue
was the clearance order that was used to recruit and hire
Cervantes Defendants are liable only if they jointly employed
Plaintiffs with WKI. In order “to assure necessary
protections for migrant and seasonal agricultural workers,
” 29 U.S.C. § 1801, the AWPA imposes obligations
on “agricultural employers.” Under the AWPA,
the term agricultural employer means “any person who
owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed or nursery, or who produces or
conditions seed, and who either recruits, solicits, hires,
employs, furnishes, or transports any migrant or seasonal
agricultural worker.” Id. § 1802(2). If
an employer fails to adhere to any of the provisions in the
AWPA the statute creates a private right of action in ...