United States District Court, D. Colorado
ESMERALDO VILLANUEVA ECHON, MARIBEL ECHON, and JUSTIN ECHON, Plaintiffs,
WILLIAM SACKETT, and LEONIDA SACKETT, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
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.
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”) (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”) 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].
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.
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.
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].
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].
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]. 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
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)).
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.
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.
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.
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.
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
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]. 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]. 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].
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].
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.
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].
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]. 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].
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].
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
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 ¶
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].
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. 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?
Q: Have they ever?
Q: No one's ever worked on the farm?
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
[#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 ...