United States District Court, C.D. California
MANUEL DE JESUS ALTAMIRANO-SANTIAGO, LUCIO MENDOZA-CASTRO, FREDI SAUL CANSECO-VASQUEZ, and others similarly situated Plaintiffs,
v.
BETTER PRODUCE, INC., RANCHO DEL MAR, INC., C.J.J. FARMING, INC., and JUAN CISNEROS, Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO
PROCEED BY PSEUDONYM [DKT. 65]
DEAN
D. PREGERSON, UNITED STATES DISTRICT JUDGE
Presently
before the court is Plaintiffs Manuel de Jesus
Altamirano-Santiago, Lucio Mendoza-Castro, and Fredi Saul
Canseco-Vasquez (collectively, “Plaintiffs”)'
Motion for Leave to File Under Seal and Proceed by Pseudonym.
(Dkt. 65.) Having considered the submissions of the parties
and heard oral argument, the court grants Plaintiffs'
Motion and adopts the following order.
I.
BACKGROUND
Plaintiffs
are “agricultural workers imported from Mexico by
Defendants to work in Defendants' strawberry
fields.” (Dkt. 1, Compl. ¶ 1.) Defendants are
Rancho del Mar, Better Produce, Inc., C.J.J. Farming, Inc.,
all California corporations with their principal place of
business in Santa Maria, California, and Juan Cisneros, Chief
Executive Officer of all corporate defendants (collectively,
“Defendants”). (Id. ¶¶ 14-17.)
The court has set forth the basic facts of this case in its
prior Order, (Dkt. 46), which it repeats in relevant part
here.
Plaintiffs
“were recruited from Oaxaca to work for
Defendants” under the “H-2A program.”
(Id. ¶¶ 20, 45.) Under the H-2A program,
an agricultural employer may import workers to work in
agriculture on a temporary basis. (Id. ¶ 20
(citing 8 U.S.C. § 1101(a)(15)(H)(ii)(a).) Plaintiffs
completed visa paperwork with an individual from the office
of Defendant Better Produce. (Id. ¶ 46.)
Plaintiffs allege that they were “required to obtain a
passport at their own expense without reimbursement from
Defendants.” (Id. ¶ 48.) Further,
Plaintiffs allege that they were “instructed to travel
from Oaxaca to the U.S. Consulate” and were required to
pay the cost of travel, hotel expenses, the fee to cross the
U.S.-Mexican border, and the “subsistence costs on the
travel from the border to Santa Maria, California.”
(Id. ¶¶ 59-74.) These costs were
“necessary to Plaintiffs and others similarly situated
. . . and were not reimbursed by Defendants.”
(Id. ¶ 75.)
Additionally,
Plaintiffs allege that each season, a supervisor for
Defendants “collected fees from each Plaintiff and
others similarly situated in the amount of $675 U.S.
Dollars.” (Id. ¶ 56.) The supervisor
“indicated that this fee was meant to cover some of the
Defendants' expenses in recruiting foreign
workers.” (Id.) Plaintiffs also allege that
their “return travel expenses were Defendants'
contractual obligation, ” but Plaintiffs
“arranged their own travel, ” and paid their own
expenses to return to their homes in Oaxaca. (Id.
¶¶ 87-92.) Plaintiffs further allege that
Defendants did not compensate their travel and wait time to
go to work, and Plaintiffs did not always receive a timely
meal period, a thirty-minute meal period, or required rest
breaks. (Id. ¶¶ 98-102.)
Based
on these allegations, Plaintiffs bring this action claiming
violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 209(a), violations of
California's Labor Code, violation of California's
Unfair Competition Law, and breach of contract. On July 30,
2019, the court granted conditional certification of the FLSA
action and approved the proposed FLSA notice to putative
opt-in members. (Dkt. 46.)
Plaintiffs
now move for leave to file under seal and proceed by
pseudonym. (Dkt. 65, “Motion”.) Specifically,
Plaintiffs request to (1) amend their complaint to add one
new named plaintiff by pseudonym; (2) file future Opt-ins
under seal; (3) order Defendants' counsel not to share
the names of Opt-ins with their client or reveal the names or
identifying information in any way to their clients; (4)
order an additional notice informing putative opt-ins that
they may join the suit with their names filed under seal, and
(5) allow any withdrawals to be filed under seal.
(Id.)
II.
DISCUSSION
Plaintiffs
seek to protect a fourth named plaintiff, [1] and the putative
class, from Defendants' coercive conduct and
communications. (See Motion.) Plaintiffs argue that
Defendants have engaged in conduct, such as sending a
supervisor to putative class members' homes in Mexico and
organizing meetings for current workers in the United States,
and have made threats to putative class members such that
putative class members fear retaliation, if they do not
affirmatively opt-out of the action. (Motion at 6:17-26.)
Specifically, during oral argument Plaintiffs represented,
and Defendants did not dispute, that Defendants have
collected and produced to Plaintiffs' counsel, more than
thirty pre-printed forms and over seventy handwritten
notes-over 100 statements-from putative class members
purporting to affirmatively opt-out. (See also Dkts.
65-2 ¶ 2 (Decl. of Dawson Morton); 67-1 ¶ 8
(Declaration of Juan Cisneros). Plaintiffs contend that the
opt-outs are the product of putative members' fear of
economic and physical retaliation. (Reply at 2.) Defendants
on the other hand, declare that they have not made any
threats, attempts to coerce, retaliated, nor “entered
into any settlements or agreements to settle claims raised in
these proceedings.” (Decl. Cisneros ¶ 8.)
Defendants instead declare that “[s]everal current and
former workers employed by [Defendants] have
voluntarily provided statements . . . indicating
their desire or intention to not be involved in these
proceedings.” (Id. (emphasis added).)
“The
normal presumption in litigation is that parties must use
their real names.” Doe v. Kamehameha
Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036,
1042 (9th Cir. 2010). Despite this normal presumption,
“a party may preserve his or her anonymity in judicial
proceedings in special circumstances when the party's
need for anonymity outweighs prejudice to the opposing party
and the public's interest in knowing the party's
identity.” Does I thru XXIII v. Advanced
Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). In
the Ninth Circuit, parties are permitted to proceed under
pseudonyms when “nondisclosure of the party's
identity ‘is necessary . . . to protect a person from
harassment, injury, ridicule or personal
embarrassment.'” Id. at 1067-68 (quoting
United States v. Doe, 655 F.2d 920, 922 n.1 (9th
Cir. 1981)). When a party seeks to be protected from
retaliation, a district court must evaluate (1) “the
severity of the threatened harm, ” (2) “the
reasonableness of the anonymous party's fears, ”
and (3) “the anonymous party's vulnerability to
such retaliation.” Id. at 1068.
The
need for anonymity and protection from coercive conduct here
is evident from the number of opt-out forms, and the language
contained therein, that Defendants have collected at this
early stage of the litigation. See, e.g., Marino
v. CACafe, Inc., No. 16-CV-6291 YGR, 2017 WL 1540717, at
*3 (N.D. Cal. Apr. 28, 2017) (finding that Plaintiff's
representation that “nearly every member of the
putative class” signed release suggested a degree of
coercion); Camp v. Alexander, 300 F.R.D. 617, 624
(N.D. Cal. 2014) (“The caselaw nearly universally
observes that employer-employee contact is particularly prone
to coercion[.]”). During oral argument, the parties
acknowledged the following: the putative class in this FLSA
and Rule 23 wage and hour class action is approximately 1,
500-all low-wage, guest workers from Mexico; of that number,
500 putative members did not receive the FLSA notice because
of incorrect addresses; and, more importantly, Defendants
have collected more than 100 opt-out forms. While the court
recognizes that Plaintiffs have not presented a clear picture
of the threats Defendants have made, the court also concludes
that Defendants have not provided a credible explanation for
the volume of “voluntary” opt-out forms
Defendants have collected at this early stage of the
proceedings. Moreover, the opt-outs contain language that
indicates a fear of retaliation, specifically, a loss of
employment. (See Dkt 74-1 (Letters # 1-5).) For
example, the handwritten opt-out notes, five of which have
been provided to the court, contain expressions of gratitude
toward Defendants and nearly uniformly contain a statement
expressing the desire to continue working with the company.
(See Dkt. 74-1, at 2 (Letter # 1) “I don't
have anything against the company . . . I thank it for the
great opportunity they gave me to come and thus be able to
provide for my family [and] I hope this isn't the last
time to come, but rather to come many more years.”;
id. at 3 (Letter # 2) “These words are to
express my most sincere gratitude to the company [Defendant]
and the boss, Juan Cisneros . . . I hope to continue working
with all of you for many more years.”; id. at
4 (Letter # 3) “I want to thank the company [Defendant]
because thanks to it, I could come to the United States . . .
I would like to continue coming [ ] because it's the best
company in which I've been able to come.”).
Additionally, the identical pre-printed forms, “Form[s]
to terminate [ ] legal rights, ” state: “I
understand I have arrived at a private agreement with
[Defendants] (Dkt. 69-1, Reply Ex. ¶ 3); “I also
acknowledge there is a risk that the funds promised will not
be paid or that, in the long run, the result will be that the
funds are insufficient to what I could gain in court”
(id. ¶ 4); “I acknowledge that the legal
agreement for the services from the attorneys of [Plaintiffs]
obligates for attorney services and their incurred
expenses” (id. ¶ 5); and “I
acknowledge the risk, and I still continue with my
instruction to my attorneys to withdraw my claims from the
lawsuit” (id. ¶ 6). Plaintiffs'
counsel did not prepare these pre-printed forms. (Decl.
Morton ¶ 5.) Therefore, considering the number of
opt-out forms, the absence of a credible explanation for the
identical pre-printed forms, and the language contained in
the opt-outs, the court concludes that Defendants have
engaged in conduct designed to undermine the ability of
putative class members to opt-in. The court also concludes
that Plaintiffs' and the putative class face reasonable
fears of economic retaliation because of their vulnerable
status. Plaintiffs and putative class members are low-wage,
temporary guest workers from Mexico, who are unable to enter
the United States and work unless Defendants submit H-2A
petitions for them. Moreover, Defendants have plaintiffs'
contact information, including their home addresses in
Mexico, and Defendants can, and have in the past, visited
plaintiffs' homes in Mexico.
Plaintiffs
request that the court permit one of four named plaintiffs to
proceed anonymously and Plaintiffs do not seek to prevent
Defendants' counsel from knowing the true name of the
fourth named plaintiff. Plaintiffs only seek to prevent
counsels' clients from having knowledge, at this early
stage, of the fourth named plaintiff's name and of future
opt-ins and future opt-outs. (See MTD at 8-9.)
Because Plaintiffs seek limited remedial action, Defendants
will not be prejudiced at this early stage. The court further
concludes that litigating this case on the merits is in the
public's interest; Plaintiffs here seek to enforce
important statutory rights that benefit the general public.
Advanced Textile, 214 F.3d at 1073. Defendants may
request relief from the court, as necessary, at each stage of
the proceeding to ensure that Defendants are not prejudiced.
See Id. (“The court must [ ] determine the
precise prejudice at each stage of the proceedings to the
opposing party, and whether proceedings may be structured so
as to mitigate that prejudice.”). Balancing the need
for anonymity, the minimal prejudice to Defendants, and the
public's interest in seeing this matter proceed, the
court concludes that permitting a fourth named plaintiff to
proceed anonymously is appropriate.
Further,
“[b]ecause of the potential for abuse [in the class
action context], a district court has both the duty and the
broad authority to exercise control over a class action and
to enter appropriate orders governing the conduct of counsel
and parties.” Gulf Oil Co. v. Bernard, 452
U.S. 89, 100 (1981). “Rule 23(d) gives district courts
the power to regulate the notice and opt-out processes and to
impose limitations when a party engages in behavior that
threatens the fairness of the litigation.” Wang v.
Chinese Daily News, Inc., 623 F.3d 743, 756 (9th Cir.
2010), judgment vacated on other grounds, 132 S.Ct. 74
(2011). Relevant here, it is well established that an
employer may communicate ex-parte with putative
class members, see Gulf Oil Co., 452 U.S. at 100,
however, no authority exists for the proposition that an
employer may solicit opt-outs ex-parte. Indeed,
courts have recognized the potential for coercion where an
employer solicits opt-outs ex-parte and have
required curative measures in such circumstances. See,
e.g., Guifu Li v. A Perfect Day Franchise,
Inc., 270 F.R.D. 509 (N.D. Cal. 2010); Camp v.
Alexander, 300 F.R.D. 617 (N.D. Cal. 2014); Marino
v. CACafe, Inc., No. 16-cv-6291 YGR, 2017 WL 1540717
(N.D. Cal. April 28, 2017); Talavera v. ...