FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS December 11, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ ESTEBAN ALFARO-HUITRON; ELEAZAR GARCIA-MATA; JOSE ANTONIO GARCIA-MATA; JUAN GUZMAN; RAUL JASSO-CERDA; ENRIQUE ROJAS-TORRES; LAZARO ROJAS-TORRES; TRINIDAD SANTOYO-GARCIA; PEDRO TAMEZ, No. 19-2091 Plaintiffs - Appellants, v. CERVANTES AGRIBUSINESS; CERVANTES ENTERPRISES, INC., Defendants - Appellees. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:15-CV-00210-GJF-JHR) _________________________________ Jerome Wesevich, Texas RioGrande Legal Aid, El Paso, Texas (Chris Benoit, Texas RioGrande Legal Aid, El Paso, Texas, on the briefs) for Plaintiffs-Appellants. Joseph Cervantes, Las Cruces, New Mexico (L. Helen Bennett, P.C., Albuquerque, New Mexico on the briefs) for Defendants-Appellees. _________________________________ Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges. _________________________________ HARTZ, Circuit Judge. _________________________________ Plaintiffs–Appellants are United States citizens or lawful permanent residents who work as farm laborers. Defendants–Appellees Cervantes Agribusiness and Cervantes Enterprises, Inc. (collectively, Cervantes) are agricultural businesses owned and managed by members of the Cervantes family in southern New Mexico. Plaintiffs brought claims against Cervantes for breach of contract, civil conspiracy, and violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. §§ 1801–72, based on Cervantes’s failure to employ them after a labor contractor, allegedly acting on Cervantes’s behalf, recruited them under the H-2A work-visa program of the United States Department of Labor (DOL). The district court granted summary judgment in favor of Cervantes on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s ruling on the breach-of-contract and AWPA claims because the evidence taken in the light most favorable to Plaintiffs is sufficient to support a finding that the contractor was acting as Cervantes’s agent when it recruited them. But we affirm the summary judgment in favor of Cervantes on the conspiracy claim because of the lack of evidence of an agreement between Cervantes and the contractor to engage in unlawful acts. I. BACKGROUND A. Dealings Between the Parties In September 2011 Dino Cervantes, managing vice president of Cervantes Enterprises and general manager of Cervantes Agribusiness, signed a one-page “Agreement of Outsourcing Support” with labor contractor WKI Outsourcing Solutions, 2 LLC (WKI). Aplt. App., Vol. 1 at 67.1 The Agreement stated that it was “for services as a work force provider. The work force consists of skilled farm labor workers; U.S. Citizens, legal residents, or foreign workers with temporary working visas (H-2A).” Id. The Agreement was to be “effective from [November 10, 2011] and ending [March 9, 2012], for the following crops: Processing & Packing: Dry Red Chile & Other Spices”; and WKI agreed to “provide 15 farm workers on a daily basis for the length of this agreement.” Id. Also in September, WKI entered into materially identical agreements with representatives of three other farm operators and packing companies in southern New Mexico. The president of WKI, Jaime Campos, had promoted his company to Cervantes and other agricultural businesses as a legal source of foreign labor ...
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