IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE COLUMBIA DIVISION JOSE ROSILES-PEREZ, ) JESUS SANTIAGO-SALMORAN, and ) ANDRES ALDANA-MORENO, ) on behalf of themselves and all others ) similarly situated, ) ) Plaintiffs, ) v. ) CASE NO. 06-CV-00006 ) SUPERIOR FORESTRY SERVICE INC., ) SCOTT BARSTOW, and ) WILLIAM IOUP, ) ) Defendants. ) PLAINTIFFS PETITION FOR A RULE TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT OF COURT AND MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37 Pursuant to Rules 16 and 37 of the Federal Rules of Civil Procedure and the inherent powers of the court, plaintiffs: (a) petition for a rule to show cause why defendants should not be held in contempt of court for their violations, as set forth below, of the Court s Order dated May 23, 2006 and (b) move for sanctions for violation of that Order. In support of this petition and motion, plaintiffs state as follows: 1. On May 23, 2006, the Court entered a protective order in this matter ( the Order or the Court s Order ), a copy of which is attached hereto as Exhibit A. 2. The Court s Order bars defendants, their employees and agents, including their attorneys, from, inter alia, communicating with plaintiffs and putative class members about this lawsuit. The Order also expressly requires that immediately upon its entry defendants were to 1 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 1 of 8 PageID #: 1072
instruct all supervisory employees of both the contents of the order and the anti-retaliation provisions of both the Agricultural Worker Protection Act and the Fair Labor Standards Act. 3. This petition and motion are filed to bring to the Court s attention and redress defendants and their counsel s apparent contempt of the Court s Order. I. Defendants Inattention, At Best, To Matters of Retaliation Has Been Disturbing. 4. Both in opposition to entry of the Order and subsequently in seeking reconsideration of the Order, defendants filings with the Court were silent with respect to the steps, if any, that counsel or their clients had taken to prevent retaliation against plaintiffs and putative class members in this case. When a motion for a protective order to bar retaliation is presented, defendants nearly universally bend over backwards to present evidence of their good faith, conscientious efforts to prevent retaliation. In this case, by contrast, defendants filings with the Court bizarrely provided no declarations, affidavits or other evidence indicating steps taken to deter retaliation. Then, ten days ago, on June 16, 2006, we discovered the likely reason why, when taking the depositions of defendants' personnel manager and one of defendants' crew leaders. II. The Deposition of Crew Leader Jose Flores Revealed That Even Three Weeks After Entry of the Court s Order, He Was Not Aware of Any Orders or Rulings of the Court. Despite the Court s Order, He Did Not Know that the Court Has Barred Him and Other Crew Leaders from Communicating with Plaintiffs and Putative Class Members About This Lawsuit. 5. The first deponent on June 16, 2006 was a crew leader, Jesus Flores. Despite the express provisions in the Court s Order mandating that all supervisory employees immediately be instructed of the terms of the Order, Mr. Flores testified, more than three weeks after the entry of the Order, that he was unaware of any orders or rulings of the Court. Flores Dep. Tr. at 2 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 2 of 8 PageID #: 1073
1 28:20-25 (attached hereto as Exhibit B). This was so despite the fact that Mr. Flores was the specific crew leader whose retaliatory conduct had been the subject of plaintiffs motion for a protective order. Although defense counsel conducted a re-direct of Mr. Flores, he conducted no re-direct on this point. 6. Asked if he had any understanding regarding any bar on his communications, Mr. Flores testified that he had been instructed not to speak to one person -- opt-in plaintiff Jose Ramon Sanchez but that he had no knowledge of any prohibition on communications by him with any other plaintiff or putative class members (including, for instance, with Joan Michel Sanchez, who has filed a declaration in this case regarding retaliation by Mr. Flores). Flores Dep. Tr. at 21:11-24, 22:16-17, 27:2-13. 29:1-6. III. Three Weeks After the Entry of the Court s Order, Defendants Personnel Manager, Enrique Gonzalez, Was Unable to Identify the Steps, If Any, Taken to Comply with the Court s Order. 7. The second deponent on June 16, 2006 was defendants' personnel manager, Enrique Gonzalez. (The transcript of his deposition testimony is attached hereto as Exhibit C). Mr. Gonzalez had recently been on a trip to Mexico. But he had been in the office for at least two days immediately prior to his deposition. Gonzalez Dep. Tr. at 68:7-11. He had had time to speak to defendant William Ioup, the chief executive of defendants Superior Forestry Services, Inc., specifically about the Court s Order. Gonzalez Dep. Tr. At 65:12-17. Yet, despite his position of ultimate responsibility, more than three weeks after entry of the Court s Order he himself had not communicated with crew leaders regarding the Court's Orders and had no idea 1 Citations to depositions transcripts, in the form Dep. Tr. at x:y-z, are shorthand for Dep. Tr. at [page]:[lines _ - _]. For example, the citation above, Flores Dep. Tr. at 28:21-25" stands for Flores Deposition Transcript, page 28, lines 21 to 25. 3 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 3 of 8 PageID #: 1074
whether anyone else had either. Id. at 66:7-9, 67:16-68:11. IV. As of June 16, 2006, More Than Three Weeks After Entry of the Court s Order, Defense Counsel Had No Idea Whether Crew Leaders Had Been Informed of the Court s Order 8. Following the above deposition testimony of Mr. Flores and Mr. Gonzalez, there was a colloquy between counsel on the record. During that colloquy, lead counsel for defendants, Mr. Stine, disclosed that he had no idea whether his client had complied with the Court s Order. Gonzalez Tr. at 80, lines 10-16. V. The Above Evidence Warrants Entry of A Rule to Show Cause Why Defendants Should Not Be Held in Contempt of Court. 9. Granting every inference possible in favor of defendants, plaintiffs submit that, at a minimum, the above evidence clearly establishes that: (a) (b) (c) (d) In violation of the Court s Order, Mr. Flores, the very crew leader whose conduct provided one basis for entry of the Order, was not made aware of the Order. More than three weeks after entry of the Order, Mr. Flores still lacked even a very basic understanding of the universe of persons he may not speak to about this lawsuit or what behaviors constitute retaliation. More than three weeks after entry of the Order, defendants personnel manager was unable to identify steps taken to comply with the Order or say whether crew leaders had been informed of it, suggesting a cavalier attitude toward compliance with the Court s Order which, at this point, is unrebutted by any indication of conscientious compliance. And, Defense counsel's statements on June 16, 2006, professing no knowledge of whether his client has complied with the Court's Order, shows (at best) counsel s cavalier attitude toward assuring that court orders are carried out. VI. Defense Counsel s Most Recent Communication Suggests Still Further Violations of the Court s Order. 10. Attached hereto as Exhibit D is a letter from defense counsel, received after the close of business last Friday, June 23, 2006, addressing the issue of retaliation by his clients. In 4 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 4 of 8 PageID #: 1075
a situation where one would expect defendants to be making every effort to allay concerns about retaliation and contempt of court, and have every incentive at least to present an impression of candor, this letter, by contrast, suggests underhandedness and misconduct 11. The letter (Exhibit D) opens with defense counsel s representation that Immediately after we received the protective order in this matter, we forwarded the protective order to our client and instructed our client to inform its employees. Notably absent from that representation are any indications that counsel: (a) provided any instructions whatsoever to his clients about what the Order means and requires; (b) took any steps to find out how the client intended to inform its employees about the order, what it intended to tell them, or to advise his clients about how and what the clients employees should be told; or (c) took any steps to make sure that notification would be given to the full universe of employees and agents to whom paragraph 4 of the Order required that notice be given. 12. Defense counsel s letter also represents that [I]n response to the protective order, Superior notified its supervisory employees... that they were to have no communications with any plaintiffs... If true, that representation reflects still further violations of the Court s Order. The Order both (a) bars communications not only with plaintiffs but also with putative class members regarding the lawsuit and (b) required Superior to give notice of that bar both to its supervisory employees and other agents. The letter suggests that neither of these aspects of the Order was complied with. 13. Continuing, the letter states that Superior has now provided oral and/or written instructions to its supervisors, recruiters in Mexico and office employees that they may not threaten, coerce or in any way retaliate against anyone who expresses any desire to join (or has 5 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 5 of 8 PageID #: 1076
joined) the lawsuit. If true, that statement again violates the Court s Order. The Order expressly forbids threats, coercion, or discrimination not only against those who have or have expressed a desire to join the lawsuit, but also against (a) any putative class member (whether or not he/she has or has expressed a desire to join the lawsuit), (b) all witnesses, (c) all potential witnesses and (d) family members of any of the foregoing. Order 2. The representation in the letter covers none of these categories of people. WHEREFORE, plaintiffs respectfully request that the Court: (1) Enter a Rule to Show Cause, returnable within 3 days, why defendants should not be held in contempt of Court for violations of the Court s May 23, 2006 Order; (2) Require immediate production of all documents provided to or created by defendants, their employees, agents, former crew leaders, or recruiters regarding the Court s May 23, 2006 Order; (3) Award all such further relief as the Court deems appropriate, including sanctions pursuant to Fed. R. Civ. P. 37. Joshua Karsh Pro Hac Vice Hughes, Socol, Piers, Resnick & Dym, Ltd. 70 West Madison Street, Suite 4000 Chicago, Illinois 60602 312.580.0100 312.580.1994 fax Respectfully submitted, /s/ Joshua Karsh One of the Attorneys for Plaintiffs 6 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 6 of 8 PageID #: 1077
Marni Willenson Pro Hac Vice Willenson Law Group, LLC 4308 North Ridgeway Avenue Chicago, Illinois 60618 312.546.4137 312.261.9977 fax Mary C. Bauer Kristi Graunke Andrew Turner Pro Hac Vice Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334.956.8200 334.956.8481 fax Tim A. Freilich Pro Hac Vice Legal Aid Justice Center 1000 Preston Avenue, Suite A Charlottesville, VA 22903 James M. Knoepp Pro Hac Vice Virginia Justice Center for Farm and Immigrant Workers 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 703.778.3450 703.778.3454 fax C. David Briley Tennessee PBR 18559 Briley Law Group, PLLC 511 Union Street, Suite 1610 Nashville, TN 37219 615.986.2684 615.986.7869 fax Attorneys for Plaintiffs 7 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 7 of 8 PageID #: 1078
CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that he caused copies of the foregoing PLAINTIFFS PETITION FOR A RULE TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT OF COURT AND MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37, to be served upon counsel named below through the Electronic Filing System Frederick J. Bissinger Wimberly, Lawson, Seale, Wright & Daves, PLLC 200 Fourth Avenue, North, Suite 900 Nashville, TN 37219 J. Roy Weathersby Wimberly, Lawson, Steckel, Nelson & Schneider, P.C. Lenox Towers 3400 Peachtree Road, NE, Suite 400 Atlanta, GA 30326 J. Larry Stine Elizabeth K. Dorminey Paul Oliver Danette Joslyn-Gaul Wimberly, Lawson, Steckel, Nelson & Schneider, P.C. Lenox Towers 3400 Peachtree Road, NE, Suite 400 Atlanta, GA 30326 th this 27 day of June, 2006. /s/ Joshua Karsh Joshua Karsh Pro Hac Vice Hughes Socol Piers Resnick & Dym, Ltd. 70 West Madison Street, Suite 4000 Chicago, Illinois 60602 312.580.0100 8 Case 1:06-cv-00006 Document 106 Filed 06/27/06 Page 8 of 8 PageID #: 1079
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