Opinion
CV 02-257-ST.
October 10, 2002
OPINION AND ORDER
INTRODUCTION
Plaintiffs, Jose Juan Gaspar and Alfredo Jimenez-Sales, filed this action on March 2, 2002, against their former employer, Ochoa's Greens, Inc. ("Ochoa's Greens"), and its President, Rodrigo Ochoa ("Ochoa"). The Amended Complaint, filed July 5, 2002, alleges that in September 2001, defendants' agent recruited plaintiffs to perform work collecting evergreen boughs and that plaintiffs subsequently worked for defendants during October and November 2001 on Forest Service property in the State of Washington. Plaintiffs allege six claims against defendants (several of which consist of multiple alleged violations) for violations of: (1) the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1811-23; (2) the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206(a); (3) the Oregon Farm and Forestry Contractor Registration Act, ORS Chapter 658; (4) Oregon's laws concerning payment of minimum wages, ORS Chapter 653; (5) Oregon's laws concerning the timely payment of wages, ORS Chapter 652; and (6) Oregon's laws concerning payment of overtime wages, ORS 653.261(1).
This court has original jurisdiction over plaintiffs' AWPA and FLSA claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
Defendants have now filed a Motion for Summary Judgment (docket #17). For the reasons that follow, the motion is denied.
DISCUSSION
I. No Certification of Compliance With Local Rule 7.1
Local Rule 7.1 requires the first paragraph of every motion (except for motions for Temporary Restraining Orders) to certify that the parties have made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so, or that the opposing party has willfully refused to confer or is a prisoner proceeding pro se. There is no such certification in defendants' motion, which alone is a basis for denial of the motion pursuant to Local Rule 7.1(a)(2).
II. Legal Standard
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. The court does "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir 1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989) (emphasis in original) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually "implausible, that party must come forward with more persuasive evidence than would otherwise be [required] . . . ." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988) (emphasis in original) (citation omitted). The Ninth Circuit has found, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
III. Merits of the Motion
A. Exhaustion and Exemption
Defendants raise two preliminary legal arguments. First, defendants argue that plaintiffs' Third Claim for Relief for violation of the Oregon Farm and Forestry Contractor Registration Act is barred due to plaintiffs' failure to file a complaint with the Bureau of Labor and Industries ("BOLI"), as required by ORS 658.453(4). Plaintiffs respond that this requirement is not jurisdictional and, even if it is, they filed the required BOLI complaint. Plaintiffs appear to be correct on both counts. See OAR 839-015-0600(4); Declaration of Julie Samples, ¶ 14. Thus, this argument provides no basis for summary judgment against plaintiffs' Third Claim for Relief.
Second, in their reply, plaintiffs argue that they are or may be exempt from several of the requirements of the AWPA under the "family business exemption." That provision exempts activities performed by an
individual . . . on behalf of a . . . nursery, which is owned or operated exclusively by such individual or an immediate family member of such individual, if such activities are performed only for such operation and exclusively by such individual or an immediate family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes.29 U.S.C. § 1803(a)(1).
Exemptions to the AWPA are narrowly construed. See Donovan v. Heringer Ranches, Inc., 650 F.2d 1152, 1154 (9th Cir 1981). Such narrow construction mandates that the family business exemption is defeated by evidence that nonfamily members performed farm labor contracting activities. See, e.g., Flores v. Rios, 36 F.3d 507, 510 (6th Cir 1994) ("The performance of any farm labor contracting activity by a non-family member `spoils' an agricultural employer's claim to the family business exemption.") (citations omitted).
In this case, plaintiffs have presented evidence that some of the alleged farm labor contracting activities were performed by the foreman of Ochoa's Greens, a man by the name of "Gaspar." There is nothing in the record indicating that "Gaspar" (who is apparently a different "Gaspar" than the plaintiff, Jose Juan Gaspar) is an immediate family member of Ochoa. Thus, the record does not support defendants' contention that the family business exemption assists them in defeating any of plaintiffs' claims.
B. Remaining Issues Simply Identify Factual Disputes
In addition to their arguments concerning exhaustion and the family business exemption, defendants also argue that they are not liable for the bulk of plaintiffs' claims because they: (1) never "intentionally" violated the relevant registration requirements; (2) did not "recruit" plaintiffs to work for them; (3) did not offer to allow plaintiff Jimenez-Sales a job through February 2002; (4) posted all statutorily-required information in the vans in which they transported their workers; (5) provided all wage information to plaintiffs on their paychecks with the exception of the total number of hours worked; (6) provided housing that complied with the substantive federal and state safety and health standards; (7) paid plaintiffs more than minimum wages; and (8) paid plaintiffs in a timely manner or were prevented from paying in a timely manner by plaintiffs' failure to provide address information.
Rather than revealing an undisputed issue of material fact and a legal issue on which defendants are entitled to prevail, the briefing and evidence submitted concerning each of these arguments reveals either a fundamental factual dispute or defendants' concession as to liability (based on "technical" violations), but not as to damages. In short, the record discloses no basis for granting summary judgment to defendants on any of plaintiffs' claims. Given that the trial in this matter will be to the court and is scheduled to commence in just over a month, no useful purpose would be served by restating the arguments or reciting the evidence proffered by the parties on plaintiffs' multitude of claims. Suffice it to say that the record makes clear that granting summary judgment to defendants at this juncture is patently inappropriate.
ORDER
For the reasons stated above, defendants' Motions for Summary Judgment (docket #17) is DENIED.