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March 20, 1989

ELIZABETH DOLE, Secretary of Labor, et al., Defendants, and CEDRICK TURNER, et al., Defendants-Intervenors

The opinion of the court was delivered by: RICHEY

 The defendant-intervenors (hereinafter the "Farmworkers") have moved under Fed. R. Civ. P. 59(e) to amend the judgment of the Court in the above-captioned matter, as announced in an Order and Opinion issued on January 17, 1989.

 The Court's judgment awards the Farmworkers back wages for the years 1983 and 1985 against the plaintiffs (hereinafter the "Growers"). *fn1" The Farmworkers now ask for modification or clarification of that judgment in several respects. The Court addresses each of the Farmworkers' requests in turn.

 1. The Appropriate Grower Class

 The Farmworkers first ask that the Court modify its determination as to the class of Growers who shall be immediately liable for back wages. In its earlier judgment, the Court held that, for the time being, the Grower class shall include only (1) the named plaintiff associations and individual growers, and (2) the members of the named plaintiff associations in 1985 who paid the unlawful piece rates in 1985. The Court deferred a decision as to whether the 1985 members of the plaintiff associations who paid unlawful rates in 1983 should be certified as members of a class. The Farmworkers ask that the class certified in the earlier judgment be expanded to include these individuals.

 Preliminarily, the Court understands the Farmworkers to suggest that the Court misunderstood the parties' April 4, 1988, stipulation regarding the scope of the Grower class. The Farmworkers contend that the Court misconstrued the terms of the stipulation by treating the 1983 back wage claims as involving a class of growers separate from that contemplated by the 1985 claims. The Farmworkers point to the terms of the stipulation, which contemplate a single class, albeit one whose scope is disputed.

 The Court rejects the Farmworkers' suggestion. The Court fully understood, and understands, what the parties stipulated to on April 4, 1988. The Farmworkers' point is essentially semantic, and without analytical significance -- regardless of whether the issue is framed in terms of a single class or separate classes, the core question is whether the 1985 members of the plaintiff associations, who paid the lawful rates in 1985, but unlawful rates in 1983, shall be deemed part of any class. Whether these growers should constitute a separate class, or whether the class already certified should be extended to include them, is analytically irrelevant. The Court adopted the former approach for the eminently practical reason stated in its Opinion of January 17, 1989 -- because of the current ambiguity surrounding the propriety of certifying a defendant class under Fed. R. Civ. P. 23(b)(2). *fn2"

 What we are left with, then, is not an erroneous interpretation of the April 4, 1988, stipulation. Rather, we are left with the more direct question of whether the Court acted properly in deferring a decision as to the 1983 claims. The Farmworkers' suggestion that the Court misconstrued the stipulation is, in substance, no more than an circuitous means of resurrecting the arguments that the Farmworkers raised in their initial briefing on the question. Put directly, the question the Farmworkers pose is whether the growers, who were members of the plaintiff associations in 1985, but who paid the unlawful rates in 1983 (whether or not they also did so in 1985), should be certified as members of a class.

 Upon further reflection, the Court concludes that its earlier decision suffered from an excess of caution as to the certifiability of a defendant class under Fed. R. C. P. 23(b)(2). Although there is certainly a live issue, it appears that the decision in Henson v. East Lincoln Township, 814 F.2d 410 (7th Cir.), cert. granted 484 U.S. 923, 108 S. Ct. 283, 98 L. Ed. 2d 244 (1987), relied upon in the earlier decision, has been given little precedential weight outside the Seventh Circuit. It further appears that the Supreme Court, for whatever reason, has deferred all proceedings in the matter at that level. 484 U.S. 1057, 98 L. Ed. 2d 975, 108 S. Ct. 1009. The ambiguity noted in the earlier decision thus continues, but, as the Farmworkers note, it continues without the prospect of impending clarification by the Supreme Court.

 Thus, there being no good reason to defer a decision, the Court turns to the merits. The Court holds that the class of defendant growers certified on January 17, 1989, should not be extended to include those 1985 members of the plaintiff associations who paid lawful rates in 1985, but who paid unlawful piece rates in 1983. *fn3" For the reasons discussed below, those growers shall not be liable to the Farmworkers in this action.

 The parties suggest that the dispositive issue is whether the plaintiff associations originally brought this action on behalf of all of their members, or whether they merely brought the action on behalf of those grower members who paid the unlawful rates in 1985 alone. The Growers contend that the latter is true, and, for that reason, they have stipulated to the existence of such a class. The Farmworkers argue that the former is true, and therefore seek certification of a class that is coextensive with the group which they regard as having initiated the lawsuit.

 The Court is inclined to agree with the Growers; the undisputed facts suggest that this action was initiated in the fall of 1985, not on behalf of all of the plaintiff associations' members, but only on behalf of those members who intended to pay the unlawful rates during the 1985 harvest. *fn4" Yet, while the Court regards this fact as significant, it does not regard it as dispositive of the issue. Instead, the Court ultimately rests its conclusion upon a construction of Rule 13 of the Federal Rules of Civil Procedure. The Court's reading of Rule 13 suggests that it would be unwise to extend the scope of the defendant class beyond that expressly accepted by the Growers in the stipulation of April 4, 1988.

 Rule 13 requires that any counterclaim, whether compulsory or permissive, be lodged against an "opposing party." Here, technically speaking, the plaintiff "parties" at the time the Farmworkers lodged their counterclaims were only the associations and several individual growers. *fn5" What the Farmworkers seek is the certification a defendant class -- a group of new "parties" within the meaning of Rule 13 -- against which they may assert their counterclaims.

 Under the fairly unique circumstances of this case, the Court is unwilling to hold -- absent stipulation by the Growers -- that the Farmworkers are entitled to the certification of this new class of Rule 13 "parties." The Court notes the current split of authority as to whether a single defendant may pose counterclaims against individual members of a certified plaintiff class. Compare Donson Stores, Inc. v. American Bakeries Co., 58 F.R.D. 485 (S.D.N.Y. 1973) (counterclaim refused against plaintiff class), with Nat'l Super Spuds, Inc. v. New York Mercantile Exchange, 75 F.R.D. 40 (S.D.N.Y. 1977) (counterclaim permitted). See also, Wright, Miller & Kane, Federal Practice and Procedure § 1404, p.4 (1988 Supp.) (noting split); H. Newberg, Newberg on Class Actions § 4.34 (2d ed. 1985) (generally opposing counterclaims against plaintiff class); Steinman, The Party Status of Absent Plaintiff Class Members: Vulnerability to Counterclaims, 69 Geo. L.J. 1171 (1981) (proposing policy-based, case-specific analysis of whether plaintiff class members should be vulnerable to counterclaims). The ...

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