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Beltran v. Interexchange, Inc.

United States District Court, D. Colorado

May 14, 2018

JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, SARAH CAROLINE AZUELA RASCON, CAMILA GABRIELA PEREZ REYES, CATHY CARAMELO, and LINDA ELIZABETH, Plaintiffs,
v.
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a/ Aupair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.E.X. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAuPair, and GOAUPAIR OPERATIONS, LLC, d/b/a GoAuPair, Defendants.

          ORDER GRANTING PLAINTIFFS' MOTION TO EXCLUDE THE SUMMARY JUDGMENT TESTIMONY OF STANLEY COLVIN, ESQ.

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on Plaintiffs' Motion to Exclude the Summary Judgment Testimony of Stanley Colvin, Esq. (the “Motion to Exclude”). (Doc. # 944.) For the reasons articulated below, the Court grants Plaintiffs' Motion to Exclude.

         I. BACKGROUND

         The Court has repeatedly and extensively explained the factual and procedural background of this case in previous orders. See, e.g., (Doc. ## 240, 569, 828.) The Court therefore recounts only the facts necessary to address Plaintiffs' instant Motion to Exclude.

         Virtually all parties filed Motions for Summary Judgment on February 16, 2018, see (Doc. ## 859, 860, 863, 864, 866, 867, 869, 871, 873, 877, 879, 884, 890, 915), the deadline for parties to file dispositive motions, see (Doc. # 687). Two of those Motions for Summary Judgment are relevant to the matter now before the Court: (1) Certain Defendant's Joint Motion for Summary Judgment (Doc. # 860), and (2) Defendant AuPairCare, 's Inc.'s (“AuPairCare”) Motion for Summary Judgment (Doc. # 871). In these Motions for Summary Judgment, Defendants draw on and cite to a “Declaration” from Stanley Colvin, which they present as an exhibit. (Doc. # 860 at 31-32; Doc. # 861-1 at 64-80; Doc. # 871 at 3.)

         Colvin is an attorney with more than two decades of professional experience in visitor exchange programs. (Doc. # 979 at 2.) Between 1995 and 2015, Colvin was employed at the United States Information Agency (“USIA”) and the United States Department of States (“DOS”), and his principal responsibility was the “legal oversight of the Exchange Visitor Program, ” including “the legal, programmatic, and Congressional functions of the Au Pair Program.” (Doc. # 945-1 at 2-3.) Colvin describes:

I had direct responsibility for the drafting and review of dozens of regulations, proposed regulations, and guidance documents pertaining to the Exchange Visitor Program and its au pair component. Of particular note, and pursuant to Congressional directive, I was the principal author of the initial regulations governing the Au Pair Program.

(Id. at 4-5.)

         Defendants retained Colvin as a “fact witness, ” (Doc. # 979 at 4), to, in his words, “discuss the history of the Exchange Visitor Program (a foreign affairs functions of the United States Government) and to review certain statements made in Plaintiffs' Motion for Rule 23 Class Certification.” (Doc. # 861-1 at 2.) In August 2016, Defendants and Colvin entered into a Consultant Agreement, in which Colvin agreed to “verbally report his facts, conclusions and findings to [Defendants] and if requested, to prepare a written report and deliver it to [Defendants].” (Doc. # 945-4 at 2.) Defendants owed Colvin an initial retainer of $10, 000, and thereafter have paid Colvin at a rate of $375 per hour. (Id.) Defendants state that Colvin “did not serve as legal counsel for any of the Defendants prior to be retained in this matter, ” though they acknowledge that Colvin subsequently wrote a letter on relevant regulations to the New York Department of Labor on behalf of a Defendant in an “unrelated matter.” (Doc. # 979 at 2.) Defendants also maintain that Colvin “has not provided legal opinions on the regulations at issue in this litigation, and he acknowledges that he is not a position to do so.” (Id. At 3.) Rather, Defendants describe Colvin as “provid[ing] valuable factual context to the regulations and the administration” of the au pair program. (Id.)

         On June 20, 2017, Defendant Cultural Care, Inc. emailed the “Declaration of Stanley Colvin” to Plaintiffs. (Doc. # 944 at 4.) Colvin summarized his credentials and then described at some length the history of the au pair program. See (Doc. # 945-1 at 2-8.) As Plaintiffs observe, Colvin used legal citations throughout his narrative. Colvin then analyzed Plaintiffs' Motion for Conditional Collective Action Certification, see (Doc. ## 325, 330), and opined on the merits of the Motion. For example, Colvin wrote that one of Plaintiffs' allegations “is erroneous and not supported by the unambiguous regulations governing the relationship between host families and the au pair participants.” (Doc. # 945-1 at 9.)

         Plaintiffs deposed Colvin on July 25, 2017. (Doc. # 945-3.) Colvin stated that he was testifying as a “fact witness, ” and to the extent that he described his responsibility for drafting and reviewing regulations in his declaration, he did so to “provide[] context to the declaration.” (Id. at 8.) He testified to his belief “that there are Congressional staffers that could perhaps provide the same type of fact testimony.” (Id. at 9.) He then answered questions about the au pair program for nearly six hours. See generally (id.)

         Defendants cited Colvin's Declaration and testimony in two Motions for Summary Judgment. In their Joint Motion for Summary Judgment, Defendants argue that field preemption bars Plaintiffs' state wage-and-hour claims. (Doc. # 860 at 25.) They assert that, in determining whether the federal government intended statutes and regulations for the au pair program to preempt state and local regulation, any ambiguity in the federal regulations should be resolved with deferral to the responsible administrative agencies' practices. (Id. at 26-30.) Defendants claim that Colvin's testimony is evidence that “[t]he agencies responsible for administering the [au pair program] have consistently interpreted the regulations to require the payment of a single, national, minimum stipend, which has been $195.75 since 2009.” (Id. at 31-32.) Colvin's Declaration is included in full in Defendants' Joint Appendix. (Doc. # 861-1 at 64-80.) Defendant AuPairCare, in its own Motion for Summary Judgment, rely on Colvin's Declaration to support its factual allegation that “[s]ince the inception of the au pair program, the federal agency tasked with oversight of the program . . . has issued statements to au pair sponsor organizations showing that the minimum weekly stipend that au pairs were to receive was tied to the federal minimum wage.” (Doc. # 871 at 3.)

         After Defendants cited Colvin's Declaration and testimony in Motions for Summary Judgment, Plaintiffs filed the Motion to Exclude now before the Court on March 17, 2018. (Doc. # 944.) Defendants filed a Response to Opposition on April 9, 2018 (Doc. # 979), to which Plaintiffs replied on April 23, 2018 (Doc. # 1021). In advance of ruling on the various Motions for Summary Judgment, the Court now addresses the Motion to Exclude.

         II. L ...


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