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Echon v. Sackett

United States District Court, D. Colorado

September 20, 2017

ESMERALDO VILLANUEVA ECHON, MARIBEL ECHON, and JUSTIN ECHON, Plaintiffs,
v.
WILLIAM SACKETT, and LEONIDA SACKETT, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This civil action comes before the court on Plaintiffs' Motion for Summary Judgment [#106, filed May 1, 2017]. The Motion was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Amended Order Referring Case dated August 28, 2015 [#46], and the memorandum dated May 2, 2017 [#107]. For the reasons set forth herein, this court respectfully RECOMMENDS that Plaintiffs' Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         Plaintiffs Esmeraldo Villanueva Echon, Jr., Maribel Echon, and Justin Echon (collectively, “Plaintiffs”) assert the following claims against Defendants William Sackett (“Mr. Sackett”) and Leonida Sackett (“Ms. Sackett”)[1] (collectively “Defendants” or “the Sacketts”): (1) violation of the Fair Labor Standards Act (“FLSA”); (2) violation of the Colorado Minimum Wage of Workers; (3) violation of the Colorado Wage Claim Act; (4) Breach of Contract; (5) Breach of Contract-Third Party Beneficiary Claim; and (6) Unjust Enrichment. [#1]. Additionally, Esmeraldo Echon, Jr. (“Esmeraldo Echon”)[2] and Justin Echon assert a claim against the Sacketts for violation of the Trafficking Victims Protection Reauthorization Act. Plaintiffs allege that Defendants, who operate several businesses and manage a farm in Rocky Ford, Colorado, held them without pay in “debt bondage, requiring them to work on their crops and in their market, clean and maintain their rental properties, and perform various other jobs from 2011-2014.” [#1 at ¶ 2]. The Sacketts, who are proceeding pro se, filed an Answer on March 18, 2015. [#11].

         On April 23, 2015, the undersigned presided over a Scheduling Conference, [#16], and subsequently entered a Scheduling Order. [#17]. As discussed in previous orders, discovery in this action has been wrought with difficulties, including multiple discovery motions and conferences that resulted in attendant delays and orders compelling discovery and awarding fees. See, e.g., [#73, #90]. The final version of the Scheduling Order set April 22, 2016 as the deadline to complete discovery, and May 20, 2016 as the deadline by which to file dispositive motions. See [#55]. The Parties then embarked on discovery.

         As early as August 2015, Plaintiffs alerted the court that Defendants were not responding to any discovery requests in a substantive fashion. [#23, #27]. In response, Defendants insisted, “I have given them all that I have, any employment record that he keeps wanting does not exist. There was not any employment [sic] I did not employ any of them at any time.” [#31 at 2]. Defendants also asserted that they did not have employees, and had not had any employees since approximately 2012. [Id. at 3]. On August 19, 2015, Plaintiffs filed their first Motion to Compel Discovery. [#32]. The court extended the deadline for Defendants to respond to no later than September 14, 2015, and reminded Defendants that they were required to follow the same rules of procedure that bind represented parties. See [#39]. On September 11, 2015, Defendants filed a document entitled, “Discovery, ” which appeared to be additional responses to some or all of Plaintiffs' Requests for Production. Compare [#32-2] with [#50]. At a hearing held October 1, 2017, this court granted the first Motion to Compel Discovery and ordered Defendants to respond to Plaintiffs' Interrogatories and Requests for Production no later than October 22, 2015. See [#52]. Defendants did not file an objection to this Order to the presiding judge, the Honorable Philip A. Brimmer.

         On November 30, 2015, this court held a telephonic discovery conference to discuss the status of discovery responses. See [#59]. The court again advised Defendants of their duties to follow applicable rules regarding discovery, and that failure to do so could result in sanctions, including but not limited to default judgment. See [id.]. On December 4, 2015, Plaintiffs filed a second Motion to Compel Discovery, [#60], to which Defendants filed no response. By Order dated January 27, 2016, this court granted the second Motion to Compel Discovery in part, ordering Plaintiffs to respond to Interrogatory Nos. 1 (as limited) - 5, 7-16 and Requests for Production No. 2-4, 6, 8, 10, and 11, no later than February 9, 2016. See [#62]. Counsel for Plaintiffs took the depositions of Mr. Sackett and Mrs. Sackett while the Second Motion to Compel Discovery was pending. See [#104-21, #104-22].

         Plaintiffs then filed a third Motion to Compel and for Sanctions on February 23, 2016. [#64]. On March 7, 2016, Defendants filed a response, docketed as a letter. See [#68]. On May 2, 2016, this court compelled Defendants to respond to the outstanding Interrogatories in narrative form. See [#73 at 7]. This court also granted sanctions in the amount of 50 percent of the reasonable expenses associated with the third Motion to Compel, which resulted in an Order awarding $1, 552.50. [Id.; #90].

         The Parties' difficulties with respect to discovery culminated with Plaintiffs' fourth Motion to Compel Discovery, filed July 19, 2016, which sought a variety of sanctions including default judgment against Defendants, a request that the court designate certain matters and facts as established for the purpose of this action, and a request that the court preclude Defendants from introducing certain matters and facts at a later time in this litigation. See [#83]. On January 23, 2017, the undersigned recommended that the Motion be granted as to the court designating certain facts as established and precluding Defendants from introducing certain facts (to be determined in the context of summary judgment), and denied as to the request for default judgment. See [#91]. This court also recommended that the court set a new deadline for Plaintiffs to file a motion for summary judgment. [Id.] On February 24, 2017, Judge Brimmer accepted the recommendation and ordered Plaintiffs to file a motion for summary judgment on or before April 10, 2017. [#92]. Judge Brimmer specified that the court would address in further detail at a later date the matters to be established and precluded. [Id.] On March 23, 2017, Plaintiffs sought and received an extension of the new dispositive motion deadline. See [#94, #97]. Plaintiffs filed the instant Motion for Summary Judgment on May 1, 2017. See [#106]. Defendants filed a Response on May 15, 2017, [#110], and Plaintiffs filed a Reply on May 24, 2017. [#111]. On June 6, 2017, Defendants filed what appears to be a surreply. [#112].[3] The Motion for Summary Judgment is thus ripe for disposition, and the undersigned finds that oral argument would not materially assist in the resolution of this matter.

         LEGAL STANDARD

         A party may be entitled to summary judgment prior to trial 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). Where, as here, the moving parties will bear the burden of proof on an issue at trial, they must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See Celotex Corp., 477 U.S. at 323. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-movant “may not rest upon mere allegation or denials of [the] pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [its] case or a denial of an opponent's allegation, ” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998). However, even where a non-moving party fails to respond to a motion for summary judgment, a court cannot automatically grant summary judgment in favor of the moving party. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 1993). Rather, the court may enter summary judgment only if Plaintiffs carry their burden under Rule 56 of the Federal Rules of Civil Procedure and demonstrate that no genuine issue of material fact exists and they are entitled to judgment as a matter of law. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002).

         The Tenth Circuit has observed that the rights of pro se litigants require “careful protection where highly technical requirements are involved…” Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984)). With this guidance, the court reads Defendants' Response to the Motion for Summary Judgment with a liberal construction in mind; however, the court cannot, and will not, act as Defendants' counsel in this matter. The court will not craft arguments on behalf of Defendants, or “peruse the record…in search of evidence” not readily accessible, Securities and Exch. Comm'n v. Capital Hldgs., L.L.C., No. 03-CV-00923-REB-CBS, 2006 WL 1660541, at *1 (D. Colo. June 12, 2006); but this court will consider the totality of admissible evidence, including but not limited to the depositions of the Sacketts and their minor child (the transcripts of which Plaintiffs submitted along with their Motion), in evaluating whether summary judgment is appropriate. Indeed, Rule 56 explicitly provides that the court may consider “other materials” in the record in adjudicating a motion for summary judgment. Fed.R.Civ.P. 56(c)(3). See Pipkins v. Taillon, No. 12-CV-02275-REB-KLM, 2014 WL 4197945, at *4 (D. Colo. Aug. 25, 2014).

         Additionally, the court will not consider unverified statements not admitted to by the opposing party. See Lopez-Bignotte v. Ontivero, 42 F. App'x 404, 408 (10th Cir. 2002) (affirming grant of summary judgment where non-moving party did not file affidavits or submit other admissible evidence to refute the affidavits filed by moving party in support of motion for summary judgment). The Sacketts did not refer to evidence in their Response or surreply, or attach evidence thereto. [#110, #112]. The Response itself is styled as a “declaration, ” and concludes with each Defendant's signature and the date but is not sworn under the penalty of perjury. See [#110]. Similarly, the surreply contains entirely unsworn testimony, some of which appears to take issue with other sworn testimony. [#112]. The Response and surreply do not comply with 28 U.S.C. § 1746, and thus do not constitute evidence that can create factual disputes for the purpose of precluding summary judgment. See Dodson v. Board of County Com'rs, 878 F.Supp.2d 1227, 1244 n.4 (D. Colo. 2012). See also Hayes v. Marriott, 70 F .3d 1144, 1148 (10th Cir. 1995) (“Unsworn affidavits do not raise factual issues precluding summary judgment”) (citation omitted); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 n.1 (10th Cir. 1994) (noting that unsworn affidavits may be used in summary judgment proceedings, but only if they comply with the requirements of 28 U.S.C. § 1746 and are signed under penalty of perjury). In addition, as discussed below, to the extent that Defendants are now attempting to provide information that should have previously been disclosed in response to the Interrogatories and were not reflected in their sworn deposition testimony, they will not be permitted to do so.

         MATERIAL FACTS

         Framework

         Plaintiffs ask that the court deem as established the facts in Plaintiffs' Statement of Undisputed Material Facts “that correspond to Defendants' failure to respond to Plaintiffs' interrogatories, ” which Plaintiffs cite as Undisputed Material Facts: 1-3, 11-13, 15, 23-25, 28-29, 31-39, 42, 45-46, 59. [#104 at 4]. Plaintiffs state that these facts fall into five categories: “(1) Defendants' employment and nonpayment of Plaintiffs, (2) Defendants' operation of their businesses, (3) Defendants' business dollar volume and inclusion in the ‘Retail and Service' industry, (4) Defendants' limited financial support of Plaintiffs, (5) Defendants' expectation that Plaintiffs work off their ‘debt' by working without pay.” [Id.] The court agreed with Plaintiffs in a previous order that Defendants should be precluded from (1) offering evidence that was not disclosed in discovery; (2) contradicting testimony provided during their depositions; and (3) relying on uncorroborated statements so as to contradict Plaintiffs' asserted factual allegations, where only Defendants (rather than Plaintiffs) have access to such information. See [#91 at 16, #104]. As explained in more detail below, given the record before it, the court cannot deem all of these facts as uncontested.

         First, in light of Defendants' sworn and consistent testimony at deposition that they did not employ Plaintiffs and that Plaintiffs performed no work for them, this court cannot accept the proposed undisputed facts that relate to the duration and type of work performed by Plaintiffs. For instance, the proffered undisputed fact in ¶ 23 contends:

Defendants required Esmeraldo Echon to perform a variety of jobs for them from September 2011 through September of 2014. He worked on their rental properties-cleaning, making repairs, doing yard work, and painting. He also worked in Defendants' fields, greenhouse, market, and at their home, including building a garage and concrete wall fence, and flooring a warehouse. He generally worked ten hours per day for six days per week.

[#104 at 6, ¶ 23]. For the same reasons, the court cannot deem as true the statement that “Justin Echon worked in Defendants' fields, on construction projects, and on other miscellaneous or domestic work for about nine hours each day for six days each week.” [Id. at ¶ 34]. Nor can the court deem as true the statement that “Defendants required Maribel Echon to work for Defendants, by caring for Leonida Sackett and Esmeraldo Echon's mother, Conchita Echon.” [Id. at ¶ 36]. Indeed, these statements appear to be contradicted by third party evidence in the record. For instance, Isidro Fierro testified during his deposition regarding Plaintiffs that, “[t]hey - they will - I will see them walking, but never saw them working, but they're supposed to work, I don't know.” [#104-28 at 15:9-11].[4] Similarly, the Sacketts' minor child testified during her deposition that Plaintiffs never worked in the market or in the fields, and never took care of Mrs. Conchita Echon. See [#104-29]. This court finds no basis for depriving Defendants the ability to testify consistently with the position they have always asserted, i.e., they did not employ Plaintiffs or otherwise cause Plaintiffs to perform work for them. However, having unequivocally denied that Plaintiffs ever performed any work of any sort for them, Defendants cannot temper their testimony at trial by suggesting that Plaintiffs may have undertaken “some work, ” or that they paid Plaintiffs for “any work” Plaintiffs may have performed. See [#104 at 19].[5] Similarly, Mrs. Sackett testified unequivocally at her deposition that she and her husband provided “enough food” to Plaintiffs and that they provided food four times a month. See [#104-22 at 151:9-17]. Accordingly, the court cannot deem as admitted the statement that “Defendants failed to provide sufficient food to Plaintiffs, leaving them hungry.” [#104 at ¶ 45].

         However, the court will deem admitted other facts that Plaintiffs propose are undisputed as a result of Defendants' failure to appropriately respond to certain Interrogatories. For instance, this court will accept as true that Defendants paid no more than $300 per month for utilities for Plaintiffs' housing in Rocky Ford, in light of Defendants' failure to respond to Interrogatory No. 8 regarding financial support provided to Plaintiffs and Jeffrey Echon. See [#104 at ¶ 12]. This court will also accept as true that Defendants did not pay Esmeraldo or Maribel Echon for any work and gave them money only a few times and after they had begged. See [id. at ¶ 25]. Likewise, the court will accept as true the fact that Defendants occasionally paid Justin Echon a small amount for work, and never paid Maribel Echon for work. [Id. at ¶¶ 33, 38]. The court will also accept facts establishing that Plaintiffs depended on Defendants for food and lodging. [Id. at ¶¶ 42]. And, in light of Defendants' failure to respond to Interrogatory No. 3, the court will accept as true that Mr. Sackett was aware that his wife did not pay Plaintiffs for any work. [Id. at ¶ 39].

         Finally, some of the facts Plaintiffs propose as undisputed as a result of Defendants' failure to respond are too attenuated to the associated Interrogatories, because the fact offered as undisputed is not actually responsive to the particular Interrogatory. For example, Plaintiffs ask to establish as true that when they “asked Defendants for help finding a paying job, Defendants refused.” For support they cite Maribel Echon's declaration and Defendants' failure to respond to Interrogatory No. 8. However, Interrogatory No. 8 asks Defendants to “list all times you financially supported any of the Plaintiffs or Jeffrey Echon, ” and cannot fairly be read to inquire into how or if Defendants responded to Plaintiffs' request for help finding a paying job. Similarly, Defendants' failure to respond to Interrogatory Nos. 6, 7, 15, and 16 does not correlate to establishing as true the statement that “Leonida Sackett told Plaintiffs that they needed to work off their debt for the costs Defendants had incurred for bringing Plaintiffs to the United States [sic] She never specified the amount they owed or a timeframe for paying it off.” [#104 at ¶ 13]. This court is even more reluctant to deem such a fact admitted in light of Mrs. Sackett's unequivocal denial that she ever threatened Plaintiffs. See [#104-22 at 162:13-14]. The facts as discerned by this court, both undisputed and disputed, are set forth in detail below.

         Undisputed Material Facts

         In applying the framework as set forth above, the court concludes that the following facts are undisputed. Defendants own and operate a farm and retail produce market known as “Sackett's Farm Market, ” and own several residential rental properties in Rocky Ford, Colorado. [#1 at ¶¶ 10, 12, #11 at ¶¶ 10, 12]. Defendants earned more than 50 percent of their annual dollar volume of business from sales to the public transacted through their market. [#1 at ¶ 11, #11 at ¶ 11, #104-21 at 22:10-14, 75:2-20, 126:13-17]. Defendants are in charge of the day to day operation of their businesses, including supervision of the work. [#104-21 at 99:18-19, 175:21-176:2, #104-22 at 54:13-15, 56:9-14, 62:6-8, 177:9-11].

         Defendant Leonida Sackett is a U.S. Citizen. [#1 at ¶ 20, #11 at ¶ 20]. Esmeraldo Echon is Mrs. Sackett's brother, and Plaintiff Maribel Echon is married to Esmeraldo Echon. Mrs. Sackett petitioned the U.S. Citizen and Immigration Services (USCIS) to obtain legal permanent residency status for Plaintiffs. [#1 at ¶ 23, #11 at ¶ 23]. Defendants signed USCIS Form I-864 Affidavit of Support as the sponsors of Plaintiffs. [#104-6]. Plaintiffs were approved as U.S. Legal Permanent Residents and traveled to the United States to live. [#104-18 at ¶¶ 5, 7, 16, #104-19 at ¶ 7]. Esmeraldo Echon moved to Rocky Ford, Colorado from the Philippines in September 2011. [#104-18 at ¶ 5, #104-19 at ¶ 6]. In April 2012, Maribel Echon moved to Rocky Ford with three of their sons, Plaintiff Justin Echon, Jeffrey (who is not a party to this action), and a minor son. [#104-18 at ¶ 6, #104-19 at ¶¶ 5, 7]. Plaintiffs lived in one of the rental houses owned by the Sacketts until mid-September 2014. [#104-18 at ¶¶ 19, 122, #104-19 at ¶¶ 13, 62]. At all times relevant to this, case the rental value of the housing Defendants provided to Plaintiffs was no more than $750 per month. [#51 at ¶ 24].[6] The Sacketts supplied Plaintiffs with food valued at $12, 500, or less. [Id. at ¶ 25]. The Sacketts provided for transportation for Justin Echon and Plaintiffs' minor son to and from school, valued at approximately $1, 600. [Id. at ¶ 30]. To the extent a jury finds that Esmeraldo and Maribel Echon performed work for the Sacketts, the Sacketts did not pay for their work and only gave them money a few times after the Echons had begged, [#104-18 at ¶¶ 21, 59, 67, 78, #104-19 at ¶¶ 16-17, #104-24 at ¶ 20], and William Sackett was aware that his wife did not pay Plaintiffs for their work. [#104-18 at ¶ 113, #104-20 at ¶ 23]. Similarly, to the extent a jury finds that Justin Echon performed work for the Sacketts, William Sackett paid Justin Echon only occasionally, and only a small sum for his work. [#104-20 at ¶¶ 20-21, 26, 35-36, #104-18 at ¶¶ 21, 23, 67, #104-15].

         Plaintiffs spoke very little English when they arrived in the United States and still are not fluent in English. [#104-18 at ¶ 15, #104-19 at ¶ 10]. Defendants kept Maribel and Justin Echon's residency and Social Security cards from Plaintiffs for over a year. [#104-18 at ¶¶ 41, 42]. In January 2013, Esmeraldo Echon suffered from complications with his kidneys. [#104-18 at ¶¶ 79-80]. Plaintiffs depended on Defendants for food and lodging. [#104-18 at ¶ 30, #104-20 at ¶ 9]. Justin Echon and his minor brother attended school in Rocky Ford. The Sacketts rarely bought clothing or shoes for Plaintiffs, or school supplies for Esmeraldo and Maribel's school-age children. [#104-19 at ¶ 51, #104-25 at ¶ 11].

         In the fall of 2013, Plaintiffs applied for food stamps with Otero County, Colorado. They ultimately received food stamps for their minor son, and by summer of 2014 were receiving $189 per month. [#104-18 at ¶ 120, #104-19 at ¶ 60, #104-20 at ¶ 36, #104-24 at ¶ 24, #104-3 at 8-9]. Plaintiffs received food and clothes from service providers, a Presbyterian Church, the food bank, and the Salvation Army. [#104-18 at ¶¶ 83-84, #104-19 at ¶ 53, #104-25 at ¶¶ 5, 9, 11, #104-23 at ¶ 4, #104-24 at ¶ 23].

         In June 2014, Plaintiffs sought assistance from Colorado Legal Services to help them leave the Sacketts. [#104-18 at ¶¶ 98, 108, #104-19 at ¶ 54]. Around this time, Esmeraldo and Maribel Echon started working at odd jobs for Rocky Ford resident Phyllis Adkins, who would provide transportation for them to and from her home. [#104-18 at ¶ 121, #104-19 at ¶ 61, #104-25 at ¶ 13, #104-23 at ¶ 7]. Plaintiffs left Rocky Ford in September of 2014. [#104-19 at ¶ 54, #104-25 at ¶ 16]. Since their departure, they have not received any money or support from the Sacketts. [#104-18 at ¶ 122, #104-19 at ¶ 62, #104-20 at ¶ 37]. In October 2014, Plaintiffs earned about $250 working at a cell-phone company. [#104-18 at ¶ 123, #104-19 at ¶ 62, #104-20 at ¶ 38].[7] After the job with the cell phone company, Plaintiffs were not able to find stable employment until January 2015. [#104-18 at ¶ 124, #104-19 at ¶ 63]. Since January 2015, Esmeraldo and Maribel Echon have been employed full time. [#104-18 at ¶ 124, #104-19 at ¶ 64].

         Disputed Material Facts

         The Sacketts did not provide a statement of undisputed material facts, or challenge the statement of undisputed material facts presented by Plaintiffs. Nonetheless, the record contains evidence, provided by Plaintiffs, that gives rise to genuine and material disputes of fact. That evidence is as follows.[8] William Sackett testified at his deposition that he manages the farm and supervises those who work on his farm. [#104-21 at 99:18-19, 111:21-22]. He testified that none of Leonida Sackett's family members worked on the Sacketts' farm:

Q: Do any of Leonida's family members work on the farm?
A: No.
Q: Have they ever?
A: No.
Q: No one's ever worked on the farm?
A: No.
Q: Not one day?
A: Not one day.
Q: So none of the plaintiffs in this case- A: They never worked. They never was employed. They was never asked to be employed. They was never, ever any time card filled out, any I-9 form filled out.
No Social Security cards taken, no numbers, nothing. They absolutely did no farm work or any employment of any kind on the farm…or on any other thing that the Sackett family owns.

[#104-21 at 102:2-22]. In response to follow-up questions, Mr. Sackett testified that Plaintiffs undertook no “custom work, ” and while they “may have did something on the - not on the farm, something on the property I own, ” they were “never employed or never asked to do anything, not of an employment nature.” [Id. at 103:2-9]. He also testified that Plaintiffs were “never, ever asked to do any work or ever employed to do any work, ” and that they “never did no work they was not paid for [and] [t]hey never did any work that they was paid for because they never did no work that was employed.” [Id. at 105:12-25]. Plaintiffs' counsel asked Mr. Sackett, “did [Plaintiffs] perform any activity related to work, whether it was paid or unpaid, whether it was related to employment or not?, ” to which Mr. Sackett responded, “I'm going to tell you, no.” [Id. at 107:13-17]. Plaintiffs' counsel also asked Mr. Sackett about whether he ever saw Plaintiffs performing work of any kind on the Sacketts' property:

Q: You never saw them volunteer?
A: No, sir.
Q: You never saw them work on your ...

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