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Bojorquez-Moreno v. Shores & Ruark Seafood Co., Inc.

United States District Court, E.D. Virginia, Richmond Division

March 17, 2015

AGUSTIN BOJORQUEZ-MORENO, et al., Plaintiffs,
v.
SHORES & RUARK SEAFOOD COMPANY, INC., et al., Defendants

Page 460

For Agustin Bojorquez-Moreno, Norberto Sepulveda-Cabrera, Alejandro Saldana-Cota, Leonardo Verdugo-Santos, Flavio Sepulveda-Cabrera, Plaintiffs: Erin Trodden, LEAD ATTORNEY, Legal Aid Justice Center (Charlottesville), Charlottesville, VA; Eunice Hyunhye Cho, James M. Knoepp, PRO HAC VICE, Southern Poverty Law Center, Atlanta, GA; Timothy A. Freilich, Virginia Justice Center for Farm & Immigrant Workers, Charlottesville, VA.

For Shores & Ruark Seafood Company, Inc., Urbanna Seafood Company, Inc., Rufus H. Ruark, Jr., Defendants: Scott William Kezman, LEAD ATTORNEY, Kaufman & Canoles PC, Norfolk, VA; Lauren Tallent Rogers, Kaufman & Canoles PC (Norfolk), Norfolk, VA.

Page 461

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge.

This matter is before the Court on the Defendants' RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS (Docket No. 11). For the reasons stated below, this motion will be granted.

BACKGROUND

The Plaintiffs are five Mexican citizens who traveled from Mexico to Virginia to work for the Defendants under the H-2B work visa program. (Compl. ¶ 1.) Specifically, this temporary work consisted of shucking oysters found in the Rappahannock River in Urbanna, Middlesex County, Virginia. (Compl. ¶ ¶ 17-19, 42, 48-50.) The nature of the job is to remove oysters from their shells by using a shucking knife to pry open the shell and cut the oyster loose from it.

The H-2 work visa program allows an employer in the United States to import foreign guest workers to perform unskilled labor of a temporary nature if the U.S. Department of Labor (" DOL" ) certifies that there are insufficient available workers in the United States to perform the job. See 8 U.S.C. § 1101(a) (15) (H) (ii); (Compl. ¶ 25.). The H-2 program is divided into two separate visa categories; the H-2A program authorizes the seasonal employment of foreign workers to perform agricultural labor or services, while the H-2B program authorizes the employment of foreign workers to perform nonagricultural work. See 8 U.S.C. § 1101(a) (15) (H) (ii); 8 CFR § 214.2(h) (1) (ii) (D). The Plaintiffs in this case were admitted to the United States under H-2B visas. (Compl. ¶ ¶ 7-12.) In connection with the oyster shucking work that Plaintiffs performed for Defendants pursuant to their H-2B visas, Plaintiffs have asserted four counts against Defendants related to a purported failure to properly pay Plaintiffs' minimum wages and to provide the appropriate number of work hours. Specifically, Plaintiffs allege: (1) violations of the minimum wage provisions of the Fair Labor Standards Act (Count I); (2) violations of the Migrant and Seasonal Agricultural Worker Protection Act (Count II) ; (3) a breach of employment contract under state law (Count III); and (4) a third-party beneficiary claim for breach of contract under state law (Count IV).

DISCUSSION

I . Legal Standard

When deciding a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), the Court applies the same standard that is applied when ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002); Walker v. Kelly,

Page 462

589 F.3d 127, 139 (4th Cir. 2009) . The Court must assume that the allegations in the non-moving party's pleadings are true and construe all facts in the light most favorable to the non-moving party. Burbach Broad. Co., 278 F.3d at 406. Judgment should be entered in favor of the movant when the pleadings " fail to state any cognizable claim for relief, and the matter can, therefore, be decided as a matter of law." Thomas v. Standard Fire Ins. Co., 414 F.Supp.2d 567, 570 (E.D. Va. 2006) (citation omitted).

II. Count I: Fair Labor Standards Act

In Count I, Plaintiffs allege that Defendants, Shores & Ruark Seafood Company, Inc., Urbanna Seafood Company, Inc., and Rufus H. Ruark, Jr., (collectively, " S& R" ) violated the minimum wage provisions of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 206(a), by failing to pay Plaintiffs at least $7.25 for every compensable hour of labor performed during each workweek they were employed and by S& R's requirement that Plaintiffs purchase their work tools. (Compl. ¶ ¶ 59, 61.)

S& R requests that this claim be dismissed only in part based on the statute of limitations. (Defs.' Mem. at 5-6.) The statute of limitations for claims under the FLSA is two years, unless a plaintiff can prove that the defendants acted willfully. See 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) (" Ordinary violations of the FLSA are subject to the 2-year limitations period." ); Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F.Supp.2d 117, 127 (E.D.N.C. 2011). If willfulness is shown, then the statute of limitations is increased to three years. Id. Plaintiffs do not contest that the statute of limitations bars violations occurring more than three years before the date of filing. (Pis.' Resp. at 3. ) In their response, Plaintiffs " clarify" that they do not seek unpaid wages or liquidated damages for any violations of the FLSA committed before September 30, 2011. Id. Defendants point out that this " clarification" is not found in the Complaint and reiterate that Count I should be dismissed to the extent it seeks recovery for violations occurring prior to September 30, 2011. (Defs.' Reply at 2.)

Because the limitation acknowledged by Plaintiffs is not found in the Complaint, the motion to dismiss Count I in part will be granted.

III. Count II: Migrant and Seasonal Agricultural Worker Protection Act

In Count II, Plaintiffs allege S& R violated 29 U.S.C. § 1822(c), 29 U.S.C. § 1821(d)(2), and 29 U.S.C. § 1821(a) of the Migrant and Seasonal Agricultural Worker Protection Act (" AWPA" ) and that each of these violations were " intentional" within the meaning of 29 U.S.C. § 1854(c)(1). (Compl. ¶ ¶ 66-70.)

S& R contends that the protections of the AWPA do not apply to Plaintiffs for two primary reasons: (1) the AWPA does not apply to H-2B visa workers; and (2) oyster shucking is nonagricultural and therefore does not fall within the purview of the AWPA. (Defs.' Mem. at 6, 10-13.) S& R also cites to several statutory definitions of " agricultural" ...


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