Hall v. Thomas

• Citation: 753 F.Supp.2d 1113
• Decision Date: 29 November 2010
• Docket Number: Civil Action No. CV–07–S–484–NW.
• Parties: Jennifer HALL and Jose Rocha, individually and on behalf of all others similarly situated, Plaintiffs,v.Phyllis THOMAS and Gloria Fisher, Defendants.
• Court: U.S. District Court — Northern District of Alabama

753 F.Supp.2d 1113

Jennifer HALL and Jose Rocha, individually and on behalf of all others similarly situated, Plaintiffs,
v.
Phyllis THOMAS and Gloria Fisher, Defendants.

Civil Action No. CV–07–S–484–NW.

United States District Court, N.D. Alabama, Northwestern Division.

Nov. 29, 2010.

[753 F.Supp.2d 1118]

Howard W. Foster, Matthew A. Galin, Foster P.C., Chicago, IL, Jack T. Patterson, II, Jeremy Y. Hutchinson, Patton Roberts PLLC, Little Rock, AR, James C. Wyly, Sean F. Rommel, Wyly–Rommel, PLLC, Texarkana, TX, Jeffrey L. Bowling, John Andrew McReynolds, IV, Bedford Rogers & Bowling P.C., Russellville, AL, R.G. Methvin, Jr., J. Matthew Stephens, McCallum & Methvin P.C., Birmingham, AL, for Plaintiffs.Adam Dougherty, Jennifer D. McCollum, Kimberly F. Rich, Teresa H. Michaud, Clayton E. Bailey, Baker & McKenzie LLP, Dallas, TX, Samuel H. Franklin, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER LYNWOOD SMITH, District Judge.

Plaintiffs, Jennifer Hall and Jose Rocha, formerly worked as hourly-wage employees in the Russellville, Alabama poultry processing plant originally owned by Gold Kist, Inc., but subsequently acquired by Pilgrim's Pride Corporation.¹ More than three years ago, plaintiff Jennifer Hall commenced this suit as a putative class action, alleging that, over the four years preceding the date of her complaint, defendants, Phyllis Thomas and Gloria Fisher, conspired “with their fellow Gold Kist and Pilgrim's Pride facility human resources ... personnel” at several named and unnamed facilities in multiple locations across the country ² for the purpose of “depress [ing] the Class' wages by knowingly employing large numbers of illegal immigrants....” ³ Plaintiffs' claims are based upon the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§ 1961– 1968 (“RICO”).

In addition to the criminal sanctions provided by RICO, see 18 U.S.C. § 1963(a),⁴ Congress declared that “[a]ny

[753 F.Supp.2d 1119]

person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains....” 18 U.S.C. § 1964(c). Section 1962 makes it illegal to participate in a RICO “enterprise” that engages in a “pattern of racketeering activities,” or to “conspire” to do so. 18 U.S.C. § 1962(c)- (d); see also Beck v. Prupis, 529 U.S. 494, 506, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (stating that, to prove a violation of the conspiracy provision, 18 U.S.C. § 1962(d), plaintiff must show that defendants (1) knowingly and willfully joined a conspiracy (2) with the purpose of violating 18 U.S.C. § 1962(c)). To establish the requisite “pattern of racketeering activity,” a plaintiff must demonstrate the “commi[ssion] of at least two distinct but related predicate acts.” Edwards v. Prime, Inc., 602 F.3d 1276, 1292 (11th Cir.2010) (bracketed alteration added) (quoting Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1282 (11th Cir.2006)).

In this case, the predicate acts plaintiffs claim defendants or their coconspirators engaged in are violations of two provisions of § 274 of the Immigration and Nationality Act (“INA”) which—provided plaintiffs can prove that the violations were for financial gain—are defined in RICO as predicate acts. See 18 U.S.C. § 1961(1)(F). Specifically, plaintiffs claim defendants violated 8 U.S.C. § 1324(a)(3)(A), which makes it a federal crime to “knowingly hire[ ] for employment at least 10 individuals with actual knowledge” that those individuals were illegal aliens and were brought into the country illegally, and § 1324(a)(1)(A)(iii), which makes it a federal crime to knowingly or recklessly “conceal[ ], harbor[ ], or shield[ ] from detection” an alien who “has come to, entered, or remains in the United States” illegally. 8 U.S.C. § 1324(a)(1)(A)(iii); id. § 1324(a)(3)(A); see also Edwards, 602 F.3d at 1292–94, 1297–1300 (interpreting these provisions in the RICO context). “RICO claimants ... must [also] show (1) the requisite injury to ‘business or property,’ and (2) that such injury was ‘by reason of’ the substantive RICO violation.” Williams, 465 F.3d at 1283. Plaintiffs' theory of damages is that defendants' alleged hiring and/or harboring depressed their wages below what they otherwise would have been.⁵

This action is currently before the court on five motions: (1) defendants' motion for summary judgment; ⁶ (2) defendants' motion to exclude the testimony of Dr. George J. Borjas, plaintiffs' expert witness; ⁷ (3) defendants' motion to exclude the testimony of James M. Johnston, another of plaintiffs' expert witnesses; ⁸ (4) plaintiffs' petition for further discovery pursuant to Federal Rule of Civil Procedure 56(f); ⁹ and (5) plaintiffs' motion to amend the scheduling order. ¹⁰

[753 F.Supp.2d 1120]

I. BACKGROUND

Because the disposition of the motions before this court and, ultimately, the action itself, turns purely on whether plaintiffs have sustained their burden of proving the reliability of their experts, and of providing evidence giving rise to a genuine issue of material fact regarding the technical requirements of the statutory provisions under which they brought suit, recitation of the factual narrative would be both unnecessary and largely unhelpful. Accordingly, the court will dispense with the usual statement of disputed and undisputed facts and address those few facts that are relevant to the substantive determinations in the analysis that follows.

A. Procedural History of the Case

Before delving into the merits of the motions and the substance of the contested testimony, however, it behooves the court to untangle the tortuous procedural history that has placed this case in its present and, as plaintiffs correctly put it, “unique procedural posture.” ¹¹ A great deal of water has gone under the bridge since this case was filed. That necessarily must factor into whether this court should countenance plaintiffs' request for further discovery, to permit their damages expert to produce the evidence of proximate causation of damages to business or property necessary to establish their prima facie case.¹²

Plaintiffs filed their initial complaint, putatively on behalf of a nationwide class, on March 16, 2007.¹³ The complaint asserted that current and former Human Resources personnel at Gold Kist and Pilgrim's Pride chicken processing facilities across the country engaged in a nationwide conspiracy to knowingly employ illegal immigrants in order to depress the wages of native unskilled laborers, like plaintiffs.¹⁴ In sum and substance, these are the very same factual allegations plaintiffs asserted in their Second Amended Complaint, filed more than a year later on May 2, 2008.¹⁵

On May 7, 2007, defendants—who are individual managers or Human Resources personnel at the Pilgrim's Pride processing facility in Russellville, Alabama ¹⁶—

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moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted.¹⁷ Twenty-three days later, defendants took the unorthodox step of also moving for summary judgment, contending, among other things, that the allegations in this action were without foundation and were simply copied—virtually verbatim—from at least three other complaints filed by one of plaintiffs' attorneys in other United States District Courts within the six months preceding the filing of plaintiffs' complaint in this case. ¹⁸ Defendants then moved, on June 12, 2007, to stay discovery pending determination of their motion to dismiss.¹⁹

In an order dated June 22, 2007, this court denied as premature defendants' motion for summary judgment and, pursuant to the general rule in this Circuit, stayed discovery pending decision on defendants' motion to dismiss.²⁰ Thereafter, plaintiffs filed a motion for modification of the stay based on what appeared on its face to be the sealed affidavit of an immigration agent created in aid of an ongoing criminal investigation. ²¹ On February 12, 2008, the court heard oral arguments regarding the pending motions and, subsequently, filed a memorandum opinion and order denying defendants' motion to dismiss and lifting the stay on discovery.²² However, noting that the Eleventh Circuit had, in a very similar case (also brought by the same attorney for the plaintiffs), expressed serious concerns with the “particularly difficult proximate causation issues [that] may be presented where a plaintiff alleges nationwide injury” in the form of wage depression resulting from alleged illegal hiring, the court “limited [discovery] to those facts (if any) substantiating plaintiff's allegations of a RICO conspiracy at the Russellville, Alabama Pilgrim's Pride facility.” ²³ Cf. Williams, 465 F.3d at 1290; see

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also Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 619 (6th Cir.2004) (stating, in yet another similar case brought by plaintiffs' counsel, that “[i]n the face of the [ ] attenuated links in the chain of causation, [defendant] asserts [that] plaintiffs cannot show proximate cause. [They] may be right—but we cannot say so at this [12(b)(6) ] stage in the proceeding.”). The order made clear that only upon demonstration of a prima facie case as to that locale would the court consider broadening the scope of discovery nationwide.²⁴

Four days after plaintiffs filed their amended complaint, as required by the same order that denied the motion to dismiss, this court entered the first Scheduling Order governing the initial phase of discovery.²⁵ According to that order, plaintiffs were required to designate and submit their expert reports by April 21, 2008, and all discovery was due to be concluded no later than May 30, 2008.²⁶ A week later, one day before the parties filed the report of their Rule 26(f) meeting,²⁷ plaintiffs filed their first motion to extend the time...