De Britto Bucco v. W. Iowa Tech Cmty. Coll., C21-4001-LTS

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtLeonard T. Strand, Chief Judge
PartiesJACQUELINE DE BRITTO BUCCO, et al., Plaintiffs, v. WESTERN IOWA TECH COMMUNITY COLLEGE, et al., Defendants.
Docket NumberC21-4001-LTS
Decision Date16 August 2021



No. C21-4001-LTS

United States District Court, N.D. Iowa, Western Division

August 16, 2021


Leonard T. Strand, Chief Judge


This case is before me on motions (Docs. 31, 32, 35 and 39) to dismiss filed by defendants Premier Services, Inc. d/b/a J&L Enterprises and d/b/a J&L Staffing and Recruiting (J&L) and Nancy Albrecht[1] (together, the J&L defendants); Tur-Pak Foods, Inc. (Tur-Pak); Royal Canin USA, Inc. (Royal Canin); and Julie Albert, Rosana Salgado Burright, Lilly Castro, Terry Murrell, Terry Yi, James Zuercher and Western Iowa Tech Community College (WITCC) (together, the WITCC defendants). Plaintiffs have filed a resistance (Doc. 58) to the motions with separate briefs as to each set of defendants. See Docs. 59, 60, 61, 62. Defendants have filed replies. See Docs. 68, 73, 74, 75. Oral argument is not necessary. See Local Rule 7(c).


The following allegations from the First Amended Complaint (FAC) (Doc. 15) are accepted as true for purposes of the motions to dismiss:

Plaintiffs are citizens of Brazil[2] and participants in the J-l visa program at WITCC. This program was represented to plaintiffs as a two-year program in which they would study at WITCC and complete internships related to their field of study at no more than 32 hours per week. After plaintiffs arrived in the United States, they were assigned jobs at either the Royal Canin or Tur-Pak plants. Royal Canin manufactures high-end pet food and Tur-Pak packs and assembles food products. Plaintiffs allege these jobs: (1) had no educational value, (2) were completely unrelated to their intended fields of study and (3) required working more than 32 hours a week. They allege defendants told them if they were unable to work due to illness, they would be removed from the visa program and sent home. They state Royal Canin and Tur-Pak paid $15 per hour for the labor plaintiffs provided, yet plaintiffs received only $7.25 per hour. The rest of their earnings went to WITCC and J&L. Plaintiffs were enrolled in classes at WITCC but were segregated from the general student population and took classes only with other Brazilians and Chileans who were part of the visa program

In November 2019, the United States Department of State investigated the visa program at WITCC. On November 19, 2019, it interviewed several students participating in the program. After these interviews, plaintiffs were prohibited from working at Royal Canin and Tur-Pak. Because they were no longer working, plaintiffs did not have money to buy food and WITCC instructed the students to utilize local food pantries. WITCC ended the visa program in January 2020 and asked the students to vacate student housing in February and March of 2020.

The FAC describes circumstances unique to each of the 10 individual plaintiffs including how they heard about the visa program, their intended fields of study, representations made to them about the program by WITCC representatives, where they worked, the nature of their work, their hours and pay and when they left WITCC housing. See Doc. 15 at 6-16. Plaintiffs allege the following claims:

• Count I - Forced labor and trafficking for forced labor under the Trafficking Victims Protection Reauthorization Act (TVPRA), including violations of 18 U.S.C. §§ 1581, 1589, 1590, 1595 (against all defendants)
• Count II - Violations of 29 U.S.C. § 201, Fair Labor Standards Act for unpaid overtime wages (against defendants Royal Canin and Tur-Pak)
• Count III - Violations of the Iowa Wage Payment Collection Law (against defendants Royal Canin and Tur-Pak)
• Count IV - Violation of the Racketeer Influenced and Corrupt Organizations act (RICO), 18 U.S.C. § 1962 (against all defendants)
• Count V - Conspiracy to commit violations of RICO, 18 U.S.C. § 1962 (against all defendants)
• Count VI - Violation of the 13th Amendment (against all defendants)
• Count VII - Denial of right to procedural and substantive due process under the Iowa State Constitution Article I, § 9 (against all defendants)
• Count VIII - Fraudulent misrepresentation (against all defendants)
• Count IX - Negligent misrepresentation (against all defendants)
• Count X - Unjust enrichment (against all defendants)
• Count XI - Breach of written contract (against WITCC)
• Count XII - Tortious bad faith breach of contract or denial of contract (against WITCC)
• Count XIII - Tortious infliction of emotional distress (against all defendants)

Doc. 15.


The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The Supreme Court has provided the following guidance in considering whether a pleading properly states a claim:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557, 127 S.Ct. 1955 (brackets omitted)

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).

Courts assess "plausibility" by "'draw[ing] on [their own] judicial experience and common sense.'" Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S. at 679). Also, courts "'review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation.'" Id. (quoting Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)). While factual "plausibility" is typically the focus of a Rule 12(b)(6) motion to dismiss, federal courts may dismiss a claim that lacks a cognizable legal theory. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir. 2013); Commonwealth Prop. Advocates, L.L.C. v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011); accord Target Training Intern., Ltd. v. Lee, 1 F.Supp.3d 927 (N.D. Iowa 2014).

In considering a Rule 12(b)(6) motion to dismiss, ordinarily the court "cannot consider matters outside the pleadings without converting the motion into a motion for summary judgment." McMahon v. Transamerica Life Ins., No. C17-149-LTS, 2018 WL 3381406, at *2 n.2 (N.D. Iowa July 11, 2018); see Fed. R. Civ. P. 12(b)(6). On the other hand, when a copy of a "written instrument" is attached to a pleading, it is considered "a part of the pleading for all purposes," pursuant to Federal Rule of Civil Procedure 10(c). Thus, when the pleadings necessarily embrace certain documents, I may consider those documents without turning a motion to dismiss into a motion for summary judgment. Id.

When a complaint does not state a claim for relief that is plausible on its face, the court must consider whether it is appropriate to grant the pleader an opportunity to replead. The rules of procedure permit a party to respond to a motion to dismiss by amending the challenged pleading "as a matter of course" within 21 days. See Fed. R. Civ. P. 15(a)(1)(B). Thus, when a motion to dismiss highlights deficiencies in a pleading that can be cured by amendment, the pleader has an automatic opportunity to do so. When the pleader fails to take advantage of this opportunity, the question of whether to permit an amendment depends on considerations that include:

whether the pleader chose to stand on its original pleadings in the face of a motion to dismiss that identified the very deficiency upon which the court dismissed the complaint; reluctance to allow a pleader to change legal theories after a prior dismissal; whether the post-dismissal amendment suffers from the same legal or other deficiencies as the dismissed pleading; and whether the post-dismissal amendment is otherwise futile.

Meighan v. Trans Guard Ins. Co. of Am., 978 F.Supp.2d 974, 982 (N.D. Iowa 2013).


Defendants' various motions make similar arguments as to why plaintiffs' claims should be dismissed. As such, I will discuss arguments made by all defendants together and discuss, separately, any arguments unique to particular defendants within each section.

A. Count I - Violations of TVPRA

Defendants argue plaintiffs fail to state a claim because the...

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