Malacara v. Garber

United States Court of Appeals

Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT December 9, 2003

____________________

No. 03-40144 Charles R. Fulbruge III
____________________ Clerk

OVIDIO MALACARA, et al.,

Plaintiffs,

OVIDIO MALACARA; DAVID RINCONES,

Plaintiffs-Appellants,

V.

RUSSELL GARBER, doing business as Garber Farms

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.

ROSENTHAL, District Judge:

This appeal requires this court to examine the family business

exemption from the Migrant and Seasonal Agricultural Worker

Protection Act (“AWPA”), 29 U.S.C. §§ 1801 et seq. Appellants, two

Texas-based migrant farmworkers, alleged that appellee, the owner

*
District Judge of the Southern District of Texas, sitting
by designation.
of a family farm, deliberately discouraged them from accepting

employment so he could import workers under a program that requires

farmers first to attempt to hire American workers before receiving

visas for foreign workers. Appellants alleged that appellee’s

conduct violated the AWPA and that his misrepresentations of the

terms and conditions of employment at his farm constituted fraud

under Texas law. The district court granted appellee’s motion for

summary judgment, dismissing the AWPA claim based on the family

business exemption from the statute and dismissing the state law

fraud claim based on a failure to raise a fact issue as to injury.

We affirm the district court’s grant of summary judgment.

I. Background

Russell Garber and his wife own and operate a farm in Ohio.

Beginning in 1999, Garber recruited migrant workers from Brazil,

where he also owns a farming operation. Garber applied for visas

for these farmworkers under the H-2A program administered by the

United States Department of Labor (“DOL”). Under this program, the

DOL grants foreign workers temporary work visas, but only if the

employer first demonstrates that he has made a good faith, active

attempt to recruit American workers but could not find sufficient

able, willing, and qualified workers for his needs. 8 U.S.C. §

1188(a)(1)(A). When Garber sought H-2A visas for Brazilian workers

in 2001, he submitted a report to the DOL stating that he had

unsuccessfully attempted to find American migrant workers by word-

2
of-mouth spread through neighbors and acquaintances; by requesting

help from the Farm Bureau, a local farm supply organization, and

the Agricultural Extension Service, a statewide agricultural

organization; and by filing a job order with the Ohio state

employment services agency. Before agreeing to issue the visas,

the DOL required Garber to publish job advertisements in Texas,

which has traditionally been a source of farmworkers for Ohio, and

to use the services of the Texas Workforce Commission (“TWC”). The

advertisements told prospective workers interested in work

opportunities at Garber’s farm to contact the TWC. When

prospective workers responded, the TWC relayed to them Garber’s

terms and conditions of employment. The TWC did not interview

prospective applicants or make any job offers. Rather, the TWC

served as a clearinghouse, where a prospective employer could post

information about available work and prospective applicants could

learn about the job opportunities.

Ovidio Malacara and David Rincones, both residents of McAllen,

Texas, contacted the TWC after learning about job opportunities on

Garber’s farm through the Texas advertisements. Garber flew from

Ohio to Texas to interview Malacara, Rincones, and several others

who had contacted the TWC. Garber conducted the interviews in the

TWC office. The TWC provided an interpreter for Malacara and

others who spoke no English. Malacara and Rincones alleged that

in the interviews, Garber tried to discourage them from taking a

3
job by misrepresenting the terms and conditions of the work.

Malacara and Rincones claimed that Garber told them the work would

be done in “cold snow” and offered to fly them to Ohio “in a manner

that suggested Garber hoped they were afraid of flying.” Rincones,

who spoke only English, alleged that Garber warned that the

inability to speak Spanish could be a problem in the workplace.

Despite these alleged efforts at discouragement, Malacara and

Rincones both expressed interest in taking the jobs. Garber

promised to contact them shortly.

Garber responded that he accurately described the work at his

farm during the interviews. Garber claimed that, in response to

Rincones’s inquiry about the language that would be spoken on the

job and in the living quarters, he informed Rincones that he and

his son – who spoke English – were “running the show” in the

fields. Garber contended that Rincones obviously knew that Garber

spoke English and should have assumed that Garber’s son did as

well. Garber told Rincones that he might be the only English-

speaker in the living quarters. Garber asserted that he believed

he had hired Rincones and Malacara at the interview; that Rincones

had accepted; and that Malacara had not firmly accepted.

Garber telephoned Rincones to arrange his transportation to

Ohio. Rincones alleged that during the telephone conversation,

Garber emphasized the problem Rincones’s inability to speak Spanish

could present at the work site, as well as the safety risks of the

4
job. Garber alleged that he answered Rincones’s prior question

about the language spoken in the living quarters and notes that,

during the telephone call, “there was some confusion over whether

the statement by Garber about Rincones being the only English-

speaking person related to the job or the living quarters.”

Rincones claimed that this conversation dissuaded him from

traveling to Ohio to work for Garber. Rincones told Garber that he

had reconsidered and would not be accepting employment with him.

Garber also telephoned Malacara. Malacara claimed that during

this conversation, he understood only the words “bus ticket” and

never communicated to Garber any lack of interest in coming to

Ohio. Garber disputed this version of events, claiming that

Malacara said that he had decided not to take the job in Ohio.

Malacara asserted that when he did not hear from Garber again or

receive a ticket for travel to Ohio, he “ultimately believed that

Garber either had not really hired [him] at the interview, or that

he had decided to reject [him] after the interview.”

Malacara and Rincones sued Garber, alleging violations of the

AWPA and the Immigration and Nationalities Act (“INA”) and fraud

under Texas law. After discovery, Garber moved for summary

judgment on all three claims. The district court granted Garber’s

motion in its entirety. The court found that Garber fell under the

family business exemption from the AWPA’s requirements, available

if a farmer’s solicitation, recruitment, or furnishing of

5
farmworkers is performed solely by the farmer or by immediate

family members. As to the second cause of action, the court found

that the plaintiffs had no private right of action under the INA.

As to the fraud claim, the court found that, in response to the

summary judgment motion, Rincones had failed to present or point to

evidence raising a fact issue as to whether he was damaged, an

essential element of the fraud cause of action.

Malacara and Rincones appeal the district court’s dismissal of

the AWPA claims, and Rincones appeals the district court dismissal

of his fraud claim.

II. Analysis

This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. BGHA, LLC v. City of Universal City, Tex., 340 F.3d 295,

297 (5th Cir. 2003). Summary judgment is appropriate if there are

no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(c)

mandates the entry of summary judgment . . . against a party who

fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial.”); Worthy v. New Orleans

S.S. Ass’n/Intern. Longshoreman’s Ass’n, AFL-CIO Pension Plan, 342

F.3d 422, 426 (5th Cir. 2003). In deciding a summary judgment

6
motion, a court must review the facts drawing all reasonable

inferences in the light most favorable to the nonmovant. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986); Cabillo v. Cavender Oldsmobile, Inc., 288 F.3d

721, 725 (5th Cir. 2002).

A. The AWPA and the Family Business Exemption

The AWPA is designed “to assure necessary protections for

migrant and seasonal agricultural workers.” 29 U.S.C. § 1801. The

AWPA imposes requirements on labor contractors, agricultural

employers, and agricultural associations. Farmers must disclose

the terms and conditions of employment at the time of recruitment,

§ 1821(a); must make the disclosures in a language the worker will

understand, § 1821(g); may not convey false or misleading

information, § 1821(f); and must comply with the parties’ work

arrangements, § 1832(c). Malacara and Rincones alleged that Garber

violated each of these provisions.

Family farmers who meet certain criteria are exempt from the

statute. The AWPA provides:

(a) The following persons are not subject to
this chapter –
(1) Family business exemption. – Any
individual who engages in a farm labor
contracting activity on behalf of a farm . . .
which is owned or operated exclusively by such
individual or an immediate family member of
such individual, if such activities are
performed only for such operation and
exclusively by such individual or an immediate
family member, but without regard to whether

7
 such individual has incorporated or otherwise
organized for business purposes.

29 U.S.C. § 1803(a)(1). The term “farm labor contracting activity”

is defined as one of six types of acts: “recruiting, soliciting,

hiring, employing, furnishing, or transporting any migrant or

seasonal agricultural worker.” 29 U.S.C. § 1802(6). If a non-

family member performs any labor contracting activity, that

“spoils” an agricultural employer’s claim to the exemption. Flores

v. Rios, 36 F.3d 507, 510 (6th Cir. 1994).

It is undisputed that Garber and his wife are the sole owners

of the Ohio farm and that Garber recruited workers exclusively for

the family farm. The issue is whether Garber used non-family

members to “recruit” farmworkers, so as to make Garber ineligible

for the family farm exemption from the AWPA. Appellants contend

that Garber’s use of the state employment agencies to locate

prospective employees and his use of friends and neighbors to

spread information about job opportunities through word-of-mouth

makes him ineligible for the family business exemption. Garber

responds that neither his use of the state agencies nor of friends

or neighbors makes him ineligible for the exemption, arguing that

he did not delegate to others any of the farm labor contracting

activities set out in the statute.

One appellate court has considered whether a farmer’s use of

a state employment service to help locate prospective workers makes

that farmer ineligible for the family business exemption. In

8
Flores, a tomato farmer located in Ohio hired Texas farmworkers

referred by the Ohio Bureau of Employment Services (“OBES”). 36

F.3d at 512. The defendant’s “interactions with OBES [we]re a two-

way street.” Id. Administrators from the OBES would contact the

defendant in an effort to place particular workers, and the

defendant would contact the OBES to post job listings. Id. The

court held that this use of the state agency did not defeat the

family business exemption because the agency did not conduct

“contracting activity” under the AWPA. Id. at 513. The court

explained that all the “practices listed by Congress as examples of

farm labor contracting activity are distinctly contractual in

nature” and that the statutory language of the AWPA exemption could

not be defined “without regard for the contractual context in which

the exemption applies.” Id.

The Flores court relied on Calderon v. Witvoet, 999 F.2d 1101

(7th Cir. 1993), which emphasized the context in which “farm labor

contracting activities” are defined:

This definition collects a number of
contractual endeavors: making a contract of
employment (“hiring”), maintaining a worker in
the labor force (“employing”), preparing to do
these things (“recruiting” and “soliciting”),
and doing them for others (“furnishing”). The
final term in this sequence, “transporting”,
can be understood as still another contractual
activity: obtaining and paying for a ticket
that brings the worker to the farm or sends
him to the next one.

9
Flores, 36 F.3d at 513 (quoting Calderon, 999 F.2d at 1103-04)

(finding that defendants were entitled to the AWPA exemption

despite the fact that non-family members drove farm bus, trucks,

and cars). The Flores court explained that the OBES is a state

agency that “merely provides the worker with a chance to find a job

at a farm in need of labor.” Id. Noting that the agency’s

activities were gratuitous; the agency represented neither the

employee nor the employer; and the employer alone had the power to

hire workers, the Flores court held that the agency did not

recruit, solicit, or furnish workers within the meaning of the

AWPA. Id. The farmer’s use of the agency did not make him

ineligible for the family business exemption. Id.

Malacara and Rincones do not argue that the TWC performed

services materially different from the OBES. In this case, as in

Flores, the state agency told workers of job opportunities and

identified interested workers to prospective employers. Neither

the OBES in Flores nor the TWC in this case made job offers.

Rather, Malacara and Rincones contend that Flores is incorrectly

decided. They contend that under the AWPA, such a use of a state

agency to look for workers forfeits the family business exemption.

Garber responds that no case has disagreed with Flores in the

years since it issued. Garber emphasizes that the position

appellants advocate would create a Hobson’s choice for a farmer who

chooses to avail himself of the H-2A visa program and otherwise

10
qualifies for the family business exemption from the AWPA. Under

the H-2A visa program, the DOL requires farmers to use state

employment agencies to locate domestic workers before allowing

visas to issue to foreign workers. Malacara and Rincones argue

that surrender of the family farm exemption should be viewed as “a

price of admission into the H-2 and H-2A programs,” requiring a

farmer to choose between the family business exemption under the

AWPA and the opportunity to hire foreign workers under the H-2A

visa program.

The definition of “farm labor contracting activities” under

the AWPA adopted in Flores and Calderon is consistent with the

statute’s language and structure. The approach that Malacara and

Rincones advocate would“divorc[e]” the statutory term “from its

context.” Calderon, 999 F.2d at 1104. In drafting the AWPA,

Congress defined recruiting, soliciting, hiring, employing,

furnishing, and transporting within the scope of contracting

activities. It is a “fundamental principle of statutory

construction (and, indeed, of language itself) that the meaning of

a word cannot be determined in isolation, but must be drawn from

the context in which it is used.” Deal v. U.S., 508 U.S. 129, 132,

113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); see also Flores, 36 F.3d at

513 (“Laws cannot be interpreted by snatching single words out of

statutory sentences and matching these words – without regard for

11
context – up against one of the many definitions of that word found

in the advocate’s dictionary of choice.”).1

The record is undisputed that Garber did not use state job

agencies to recruit “in any contractual sense.” Flores, 36 F.3d at

513. Like the OBES in Flores, the state employment agencies that

Garber used charged no fee for their services and did not purport

to represent either the employer or employee. Both Garber and the

workers remained free at all times to accept or reject any agency

recommendation. An agency referral provided the worker with no

assurance of employment. Garber did not delegate any authority to

hire to the TWC, but rather flew to Texas personally to interview

applicants. No one at the state employment offices offered a job

to applicants; instead, Garber personally extended job offers to

them. Garber did not delegate statutory contracting activities to

the TWC or other state agencies.

Malacara and Rincones rely on a DOL opinion letter stating

that the use of a state employment service agency to locate workers

vitiates the family business exemption. They argue that the letter

1
Malacara and Rincones cite the repealed Farm Labor
Contractor Registration Act (“FLCRA”), 7 U.S.C. §§ 2041 et seq.,
the AWPA’s predecessor statute, and this court’s decision in
Montelongo v. Meese, 803 F.2d 1341 (5th Cir. 1986), to support
their argument. Appellants’ citations to the FLCRA and Montelongo
v. Meese are unhelpful. The FLCRA has been repealed. In
Montelongo, which held that a person was “recruiting” on behalf of
a farmer where that person told workers about potential employment
and referred them to the farm where they were summarily accepted
upon arrival, the court construed language under the FLCRA. 803
F.2d at 1346.

12
is entitled to deference under Skidmore v. Swift & Co., 323

U.S.134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).2 In the opinion

letter, issued on April 14, 1994, the DOL asserted that the family

business exemption “by its plain terms, does not apply to any

business or person using the services of a state employment service

agency to obtain workers.” Interpretations contained in opinion

letters are not controlling and should be followed only insofar as

they have “power to persuade.” Christensen v. Harris County, 529

U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Moore v.

Hannon Food Serv., Inc., 317 F.3d 489, 497 (5th Cir. 2003); see

also Salinas v. Rodriguez, 963 F.2d 791, 793 (5th Cir. 1992). The

DOL opinion letter is not persuasive. That letter was based “upon

a reexamination of the legislative history, the statute, the

regulations issued thereunder, and recent judicial interpretations

concerning the intent of Congress.” Significantly, the letter was

issued before the Sixth Circuit’s ruling in Flores and cited

“recent judicial interpretations” that were rejected in Flores.

The basis of the DOL opinion letter is no longer valid after

Flores. Indeed, if the DOL were to prevail on both (1) its

requirement that farmers work through state agencies and (2) the

position espoused in its opinion letter, the DOL would, in effect,

2
Skidmore requires a court to accord deference to an
administrative judgment, “depend[ing] upon the thoroughness evident
in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to
control.” 323 U.S. at 140.

13
be repealing the family farm exemption – a power enjoyed

exclusively by Congress and not available to an executive branch

department.

Malacara and Rincones argue that the family business exemption

should be construed narrowly because Congress intended the AWPA to

be remedial in nature. See H.R.Rep. No. 885, at 12, U.S.CODE CONG.

AND ADMIN. NEWS 1982 at 4558 (“The Committee intends that the

foregoing exemptions be construed narrowly in a manner that

furthers the remedial purposes of this Act.”); see also Bracamontes

v. Weyerhaeuser Co., 840 F.2d 271, 276 (5th Cir. 1988); Charles v.

Burton, 169 F.3d 1322, 1334 (11th Cir. 1999) (“. . . since the AWPA

is a remedial statute, we must construe it broadly.”), r’hrg

denied, 182 F.3d 938 (11th Cir. 1999), cert. denied, Burton v.

Charles, 528 U.S. 879, 120 S.Ct. 191, 145 L.Ed.2d 160 (U.S. 1999);

Flores, 36 F.3d at 510. They argue that, in enacting the AWPA in

1983 and in amending the INA and the AWPA in 1986, Congress

implicitly endorsed the result that farmers who use the H-2 and H-

2A programs could not qualify for the AWPA’s family business

exemption. The court in Flores rejected a similar argument,

finding that courts must not “obliterate” or “eviscerate” the

family farm exemption for farmers who use public employment

services. See Flores, 36 F.3d at 510. Accepting Malacara’s and

Rincones’s proposition would exclude family farmers from the H-2A

program unless they relinquish the protection Congress specifically

14
granted under the AWPA. A family farmer’s compliance with the

mechanism Congress devised to promote the employment of American

workers under the H-2A program would undermine the exemption carved

out from the AWPA to protect family farmers. “Congress has

embraced a federal policy designed to benefit the oft-beleaguered

family farmer.” Id. “Federal laws are shot through with favorable

rules for small businesses and family farms.” Calderon, 999 F.2d

at 1105.

The use of state employment agencies to bring workers

interested in out-of-state jobs together with family farmers,

including those farmers considering using foreign workers,

supports, rather than frustrates, the remedial goals of the AWPA.

“Mindful of AWPA’s protective goals, we see no reason to deter

family farmers from using the public employment service when the

challenged practice poses no threat to workers . . . . In fact,

the government’s presence in the labor market can only serve to

protect workers like [the plaintiff]. The effectiveness of the

public employment service directly reduces the workers’ need to

rely on potentially-abusive crew leaders to find agricultural

employment.” Flores, 36 F.3d at 513. The AWPA and the H-2A

program can effectively coincide to promote the dual interests of

protecting family farmers from burdensome litigation while

expanding the potential labor market for American workers.

15
 Malacara and Rincones also argue that Garber lost the family

business exemption by using neighbors to spread news of job

opportunities through word-of-mouth. The evidence they present to

substantiate this claim is Garber’s statement in his application

for H-2A visas that he “advertised by word of mouth.” The record

reveals that in “word-of-mouth referrals,” Garber told “neighbors,

acquaintances, and so on” that “I need help.” Neither the record

nor the parties’ briefs indicate a more extensive use of any non-

family “recruiters.”

In Calderon, the laborers’ oral reports of their experiences

in the defendant’s farm allegedly led other migrant workers to work

for the defendant. The Seventh Circuit held that unsolicited

remarks by existing workers to their friends and family that led to

additional job applications would not defeat the family farm

exemption. 999 F.2d at 1105. “What workers tell their friends is

beyond the owners’ control, and treating such activities as ‘farm

labor contracting activities’ would gut the exemption – for it is

impossible to suppress word-of-mouth reports about the job.” Id.

By contrast, the Sixth Circuit in Flores found that the defendant’s

word-of-mouth activity did defeat his family farm exemption. In

Flores, an employee of the tomato farmer recommended a worker to

the farmer. 36 F.3d at 515. The employee, not the farmer,

extended the worker a job offer and instructed him to move his

family from Texas to Ohio. Id. The farmer never talked to the

16
worker during this process. Id. The Flores court explained that,

while “an employee’s ‘gratuitous recommendation’ . . . ha[s] no

effect on the farmer’s eligibility for the exemption,” a farmer’s

“specific delegation of recruiting authority to an employee . . .”

defeats the exemption. Id. The court explained that the

defendant’s employee was “solely responsible” for conveying the

offer of employment to the plaintiff and encouraging the plaintiff

and his family to move to the defendant’s farm to begin work. Id.

The farmer’s minimal involvement in the hiring decision showed that

the farmer had delegated hiring authority to his employee. Id. at

516. “If the [farmers] wish to remain exempt, they are fully

empowered to do so – by speaking directly to the employee they are

hiring.” Id.

Malacara and Rincones argue that the touchstone for deciding

whether a farmer is responsible for the activities of non-family

intermediaries under the AWPA should be intentionality. They cite

Calderon for the proposition that the “focus” should be on the

farmer’s “own decisions and actions – including the choice, if [he]

made one, to delegate” farm labor contracting activities to a non-

family member. 999 F.2d at 1105. They contend that Flores

illustrates intentionality by evaluating the farmer’s “own

decisions and actions.” 36 F.3d at 515. The Seventh Circuit in

Calderon held that the focus is on whether the farmer had in fact

delegated recruitment and hiring authority. 999 F.2d at 1105. In

17
Flores, the Sixth Circuit emphasized the evidence of the delegation

of hiring authority, noting “the lack of any direct contact between

the employer and the migrant worker, that cost [the defendant] its

exemption.” 36 F.3d at 516.

The record does not indicate that Garber delegated recruiting

or hiring authority. Garber himself extended the job offers to

applicants, only after personally interviewing them. Without

evidence that Garber ceded any control over recruiting or hiring to

friends or neighbors, or even that they referred any workers to

him, the record shows no delegation of recruiting authority that

would defeat the AWPA exemption. To the contrary, the record

reveals that Garber took pains to maintain his AWPA exemption.

After the DOL required him to use the TWC to try to locate workers

in Texas, Garber traveled to Texas to meet with interested

applicants, interviewed them himself, and made the job offers

himself. This record defeats an inference of delegation.

Malacara and Rincones contend that Garber failed to meet the

burden of proving entitlement to the family business exemption, an

affirmative defense. A party asserting an affirmative defense

“must establish beyond peradventure all of the essential elements

of the . . . defense to warrant judgment in his favor.” Chaplin v.

NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (quoting

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). The

record evidence as to Garber’s employment activities is undisputed.

18
The contested issue is whether Garber is entitled to the family

business exemption, given the limited involvement of non-family

third parties. This court holds that because the undisputed

evidence shows that the third parties performed no farm labor

contracting activities under the AWPA, summary judgment that Garber

qualified for the family business exemption was proper.

B. The Fraud Claim

Under Texas law, the elements of a fraud cause of action are:

(1) a material representation; (2) it was false when made; (3) the

speaker either knew it was false or asserted it without knowledge

of its truth; (4) the speaker intended that it be acted upon; (5)

the party acted in reliance; and (6) the party was injured as a

result. Great Plains Trust Co. v. Morgan Stanley Dean Witter &

Co., 313 F.3d 305, 322 (5th Cir. 2002); Formosa Plastics Corp. USA

v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.

1998). Garber moved for summary judgment, stating in his motion

that Rincones had failed to show evidence of any of the fraud

elements, including injury. In his response to the summary

judgment motion, Rincones did not address this argument or point to

evidence of injury. The district court granted Garber’s summary

judgment motion, finding that Rincones had failed to point to any

record evidence showing that Garber’s alleged fraud caused Rincones

any injury.

19
 Rincones contends that the district court improperly entered

summary judgment “sua sponte.” He notes that Garber’s summary

judgment motion focused on whether Garber had made

misrepresentations and whether Rincones had reasonably relied on

them. Rincones argues that the district court should have at least

notified him that it intended to consider the lack of evidence of

injury as a ground for summary judgment. Citing Nowlin v.

Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir. 1994), Rincones

contends that a district court must provide the plaintiff a minimum

of ten days notice before granting summary judgment “sua sponte.”

Garber responds that a district court has an inherent “power

to enter summary judgments ‘sua sponte,’ so long as the losing

party was on notice that [he] had to come forward with all of [his]

evidence.” Celotex, 477 U.S. at 326. Garber argues that his

motion for summary judgment placed Rincones on notice that Garber

contended the record could not support any of the elements of his

fraud claim.

Garber’s motion for summary judgment did put Rincones on

notice that he needed to point to or submit evidence as to each

element of the fraud cause of action. The motion listed the six

elements of a fraud cause of action under Texas law and argued that

Garber was entitled to summary judgment “[b]ecause Plaintiffs

cannot prove any of these elements much less all of them.” Nowlin

does not state that notice is provided only when a movant

20
specifically identifies the absence of evidence as to an element of

the cause of action, but rather holds that adequate notice exists

when the losing party is aware “that [he] had to come forward with

all of [his] evidence.” 33 F.3d at 504 n. 9 (quoting Celotex, 477

U.S. at 326; Judwin Props., Inc., v. U.S. Fire Ins. Co., 973 F.2d

432, 436-37 (5th Cir. 1992)). A movant’s burden is to point out

the absence of evidence supporting the nonmovant’s case. Celotex,

477 U.S. at 323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.

1996). To survive summary judgment, the nonmovant must submit or

identify evidence in the record to show the existence of a genuine

issue of material fact as to each element of the cause of action.

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 349 (5th

Cir. 2001); Fontenot, 780 F.2d at 1195. The district court judge

did not grant summary judgment “sua sponte” or with inadequate

notice to Rincones.

Rincones further contends that the record contained sufficient

evidence of injury to preclude summary dismissal of the fraud

claim. He states that evidence in the record showed that Garber’s

contract with Rincones would have been worth $10,193.40 in wages

plus free housing, while he earned only $3,710.78, with no housing,

from the job he obtained in lieu of employment with Garber. This

evidence was in Rincones’s deposition, the transcript of which

Garber submitted as an exhibit to the district court. Rincones did

not, however, mention this evidence in his brief.

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 When evidence exists in the summary judgment record but the

nonmovant fails even to refer to it in the response to the motion

for summary judgment, that evidence is not properly before the

district court. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d

455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S.Ct. 98,

121 L.Ed.2d 59 (1992). “Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to

support a party’s opposition to summary judgment.” Ragas, 136 F.3d

at 458; Stults, 76 F.3d at 657; Forsyth v. Barr, 19 F.3d 1527, 1537

(5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130

L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also Nissho-

Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)

(it is not necessary “that the entire record in the case . . . be

searched and found bereft of a genuine issue of material fact

before summary judgment may be properly entered”); cf. U.S. v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like

pigs, hunting for truffles buried in briefs.”). Because Rincones

did not identify any evidence of damages in his summary judgment

response, the evidence was not properly before the district court

and will not be considered here.3

3
Appellants initially argued that the district court failed
to credit their evidence of damages, but conceded in their reply
brief that “after re-reviewing the law, [they] agree with the
Appellee that, post-Celotex, a district court need review only
those portions of the record called to the court’s attention by the

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 This court affirms the district court’s grant of summary

judgment on the fraud claim.

III. Conclusion

The district court correctly granted summary judgment to

Garber on the AWPA claims by finding that he qualified for the

family farm exemption and correctly granted summary judgment

against Rincones on his fraud claim. The judgment below is

AFFIRMED.

parties, and not the entire record, before granting summary
judgment.”

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