United States District Court, N.D. Indiana, Hammond Division, Lafayette
ANDREW O'SHEA, individually and on behalf of all those similarly situated, Plaintiff,
MARISOL MARTINEZ, et al., Defendants.
DEGUILIO Judge United States District Court
Andrew O'Shea filed an amended putative-class-action
complaint on May 16, 2016, which brings civil Racketeer
Influenced and Corrupt Organizations Act (RICO) claims
against Defendants James Harding, Marisol Martinez and Ruben
Hernandez. [DE 19]. He contends that the Defendants-employees
of the Indiana Packers Corporation (IPC)-used falsified
immigration documents and made false attestations to hire
employees that were not authorized to work in the United
States, depressing the wages of IPC's legal employees.
[DE 19]. The Defendants responded with a motion to dismiss
the amended complaint in its entirety. [DE 24]. They argue,
among other things, that the Plaintiff has failed to
plausibly plead his claims.
October 11, 2016, the undersigned referred the
Defendants' motion to dismiss to Magistrate Judge John E.
Martin for a report and recommendation, pursuant to 28 U.S.C.
§ 636(b)(1)(B), Federal Rule of Civil Procedure 72(b)
and Northern District of Indiana Local Rule 72.1(c). [DE 32].
On February 10, 2017, Magistrate Judge Martin issued his
Report and Recommendation [DE 35], which recommends that the
Court dismiss the Plaintiff's amended complaint in its
Court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b), however, the Court must only make a
de novo determination of those portions of the
Magistrate Judge's report and recommendation to which
specific written objection has been made. Johnson v. Zema
Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999);
Fed.R.Civ.P. 72(b). If no objection or only a partial
objection is made, the Court reviews those unobjected
portions for clear error. Id. In addition, failure
to file objections with the district court “waives the
right to appeal all issues addressed in the recommendation,
both factual and legal.” Id. Under the clear
error standard, the Court can only overturn a Magistrate
Judge's ruling if the Court is left with “the
definite and firm conviction that a mistake has been
made.” Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b) require the
parties to file objections to a report and recommendation
within fourteen days of being served with a copy of the same.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(2). More than 14 days have passed since the parties
were served with Magistrate Judge Martin's Report and
Recommendation and no party has filed an objection.
Consequently, because the time period for objections has
passed, the Court considers there to be no objection to
Magistrate Judge Martin's Report and Recommendation.
reviewed that Report and Recommendation, the Court finds no
clear error therein. The Court concurs that, while depressed
wages may constitute damage to business or property under
RICO's standing provision, the Plaintiff has failed to
allege an adequate benchmark wage to support his damages
claim. He alleges only that the Plaintiff's wages were
depressed relative to other high-school-dropout workers, not
high-school-dropout workers with a recent injury, criminal
conviction or unstable work history like the Plaintiff.
Similarly, the Plaintiff has not sufficiently alleged a
causal relationship between the Defendants' purported
conduct and his depressed wages. Thus, the Plaintiff lacks
standing to pursue his RICO claim.
if he can overcome that obstacle, the Court likewise concurs
with the Magistrate Judge that the Plaintiff has sufficiently
alleged RICO conduct and a pattern of racketeering activity
under § 1962(c). While the Defendants may not have been
high-level executives, an employee need not be at the top of
the corporate echelon to satisfy RICO's conduct test.
See United States v. Otero, 37 F.3d 739, 751 (1st
Cir. 1994). Further, the Plaintiff alleges that the
Defendants repeatedly accepted fraudulent immigration
paperwork and made false representations as to the
immigration status of ICP employees. While he may not yet
have provided the precise details of that purported fraud,
“Rule 9(b) does not require plaintiffs to plead facts
to which they lack access prior to discovery.”
Armada (Singapore) PTE Ltd. v. AMCOL Int'l
Corp., No. 13 C 3455, 2013 WL 5781845, at *3 (N.D. Ill.
Oct. 25, 2013).
though the Plaintiff lacks standing to pursue it, his amended
complaint otherwise sufficiently alleges a conspiracy claim
under § 1962(d). It asserts that the Defendants agreed
for Martinez and Hernandez “to carry out the Scheme in
the manner described above.” [DE 19 at 16]. While
contrite, that does suffice to appraise the Defendants of the
nature of the Plaintiff's claim: that the Defendants
conspired to violate § 1962(c) as described throughout
the amended complaint in violation of § 1962(d). Lastly,
while the Defendants argue that any agreement ought to be
defeated by the intracorporate conspiracy doctrine, that is
not so where, as here, the Defendants allegedly conspired
with each other rather than with their employer. See
Webster v. Omnitrition Int'l, Inc., 79 F.3d 776, 787
(9th Cir. 1996).
such, the Court finds no clear error in Magistrate Judge
Martin's conclusions. It thus ADOPTS Magistrate Judge
Martin's Report and Recommendation [DE 35] in its
entirety and incorporates that Report and Recommendation into
this order. The Court GRANTS the Defendants' motion to
dismiss [DE 24] and DISMISSES the Plaintiff's complaint
the Court notes that a separate motion to dismiss remains
pending as to the Plaintiff's original complaint. [DE
17]. However, because the Plaintiff since filed the amended
complaint at issue in this order, the initial complaint which
is the subject of the [DE 17] motion to dismiss is of no
further effect. Duda v. Bd. of Educ. of Franklin Park
Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir.
1998) (“Once an amended pleading is filed, it
supersedes the prior pleading.”) (citing Wellness
Community-National v. Wellness House, 70 F.3d 46, 49
(7th Cir. 1995)); Barnett v. Daley, 32 F.3d 1196,
1198 (7th Cir. 1994); Buck v. New York Cent. R.R.,
275 F.2d ...