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Rosas v. Sarbanand Farms, LLC

United States District Court, W.D. Washington, Seattle

June 13, 2019

BARBARO ROSAS and GUADALUPE TAPIA, as individuals and on behalf of all others similarly situated, Plaintiffs,



         This matter comes before the Court on Plaintiffs' motion for partial summary judgment on their claims arising under the Farm Labor Contractors Act (“FLCA”), Wash. Rev. Code § 19.30.010 et seq. (Dkt. No. 84). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         The Court set forth the underlying facts of this case in a prior order and will not repeat them here. (See Dkt. No. 74.) On December 20, 2018, the Court certified a class and two subclasses of Mexican national migrant farm workers. (Id. at 26-27.) The Court certified the class on Plaintiffs' claims that Defendant CSI Visa Processing S.C. (“CSI”) violated the FLCA and for Defendants Sarbanand Farms, LLC and Munger Bros., LLC (collectively, “Growers”) resultant liability. (Id. at 27.)

         CSI is a Mexican corporation. (Dkt. No. 89 at 1.) CSI “provides visa processing services in Mexico for various United States organizations seeking temporary farmworkers under the H-2A Guest Worker Program.” (Id.) CSI's business activities take place in Mexico, which include processing potential farmworkers' visa applications and providing representation at the United States consulate. (Id. at 2.) CSI has provided recruiting and H-2A processing services to United States employers for many years. (Dkt. No. 85-1 at 2.) In its promotional materials, CSI states that it assists over 2, 000 employers across the United States, including Washington (Dkt. Nos. 85-4 at 3, 100-1 at 1.) CSI employees have attended WAFLA[1] conferences in Washington, where CSI provided materials describing and promoting its services. (Dkt. No. 88 at 2; see, e.g., Dkt. Nos. 85-4 at 2-14; 85-7 at 3-4; 85-8 at 2.)

         CSI's visa application process generally begins when a prospective employer sends a preselected list of preferred workers to CSI. (Dkt. No. 100 at 1.) Alternatively, CSI may review applications submitted through its online registration portal to select qualified applicants for an employer. (Id.) CSI describes its online registration form as “essentially a self-explanatory portal that allowed workers to submit an application for an H-2A visa so that he or she could work in the United States.” (Id. at 2.) CSI also maintains a Facebook page that directs visitors to submit an H-2A visa application through CSI's online registration portal. (Id. at 2.)

         In 2015 and 2016, Defendant Sarbanand Farms contracted with WAFLA to obtain H-2A workers to pick blueberries in Sumas, Washington. (Dkt. Nos. 85-11-85-12.) The contracts provided that WAFLA would be responsible for maintaining contracts with third party agents that recruited or assisted foreign workers. (Id.) WAFLA retained CSI to obtain H-2A workers in Mexico. (Dkt. No. 85-15 at 2-7.) Beginning in 2017, Growers decided to expand their use of H-2A workers to farms in California. (Dkt. No. 68 at 2.) Growers hired Giovanna Sierra to advise them about the H-2A program, and contracted with CSI to “locate, recruit, and supply” H-2A workers for work in California and Washington. (Id. at 2-3; see also Dkt. Nos. 68 at 3, 85-25) (declaration of CEO of Defendant Munger Bros. and Growers' “H-2A Planning Overview Sumas” PowerPoint presentation slides describing CSI's role).

         In 2017, CSI's Director of Compliance Roxana Macias contacted Washington's Department of Labor and Industries (“L&I”) about whether CSI had to register as a farm labor contractor under the FLCA. (Dkt. No. 88 at 3.) Tisa Soeteber, an Agricultural Employment Standards Specialist for L&I, informed Macias that CSI was not required to register, and in fact could not register, as a farm labor contractor because CSI was located outside of the United States. (Id.; see Dkt. No. 88-1.) L&I's Employment Standards Program Manager David Johnson stated in his Rule 30(b)(6) deposition that Soeteber's advice was inaccurate. (See Dkt. Nos. 96-32 at 4-6, 106 at 6.) Johnson stated that CSI needed a license regardless of where it was located if it was conducting any farm labor contractor activity in Washington. (Dkt. No. 96-32 at 4, 6.) Johnson stated that Soeteber's advice did not have an articulable basis in law or an L&I policy. (See id. at 5-6.) CSI admits that it did not have a Washington farm labor contractor's license during the times relevant to this case. (See Dkt. Nos. 12 at 5, 31 at 4.)

         In 2017, CSI processed the class members' visa applications to work in the United States under H-2A visas. (Dkt. Nos. 84 at 6-11, 89 at 1, 100 at 2.) CSI initially provided Growers with 600 H-2A workers to work in California, who were on a preselected list produced by Defendant Munger Bros. (Dkt. Nos. 100 at 2, 103 at 2.) At the end of their work in California, the 600 H-2A workers were given the choice to return to Mexico or transfer to Sumas, Washington for further work. (Dkt. No. 103 at 2.) About 500 H-2A workers elected to transfer to Washington, leaving approximately 100 open H-2A positions for work in Washington. (Id.)

         Defendant Sarbanand Farms contracted with CSI to locate additional workers in Mexico and process their H-2A applications. (Id.; see Dkt. No. 96-18 at 14-22.) Ultimately, CSI processed visas for 103 additional workers that were sent directly to Washington to work for Defendant Sarbanand Farms. (Dkt. No. 103 at 2.) 36 workers were preselected by Defendant Munger Bros. (Id.) The remaining 67 workers “contacted CSI via its website and asked to be considered for an H-2A visa. CSI then processed visas on their behalf.” (Id. at 2-3.)

         During the visa application process, CSI informed at least some class members that they would be working in Washington or would start working in California and then move to Washington. (See, e.g., Dkt. Nos. 85-30 at 2, 85-35 at 3, 85-36 at 5.) CSI helped workers set up interviews at the U.S. consulate, (see Dkt. No. 84 at 12-13; see generally Dkt. Nos. 85-42-85-46), and picked up visas for workers after they were processed. (Dkt. No. 85-41 at 2.) CSI's contracts with Growers provided that CSI would receive a fee of $85 for each worker that was sent to work in the United States. (See Dkt. No. 96-18 at 10-11, 19-20; see also Dkt. No. 85-25 at 8.) CSI received a fee when it processed visas on behalf of the workers initially sent to California, but did not receive an additional fee when approximately 500 of those workers were transferred from California to Washington. (Dkt. Nos. 100 at 2, 103 at 2.) CSI received a fee when it processed visas on behalf of the workers sent directly to Washington to work for Defendant Sarbanand Farms. (Dkt. Nos. 100 at 2-3, 100 at 2.) CSI did not play a role in determining where class members were employed in the United States. (Dkt. No. 88 at 1.)

         Plaintiffs move for summary judgment on their claims arising under the FLCA. (Dkt. No. 84.)


         A. Legal Standard

         “The court shall grant summary judgment 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). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect ...

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