Montize v. Pittman Properties Ltd. P'ship # 1, Case No. 07-CV-1073.

• Decision Date: 16 March 2010
• Docket Number: Case No. 07-CV-1073.
• Citation: 719 F.Supp.2d 1052
• Parties: Arcelia MONTIZE, Evencio Garcia and Agustin Garcia Gonzalez, Plaintiffs v. PITTMAN PROPERTIES LIMITED PARTNERSHIP # 1; D & M Pittman, Incorporated; Dawood Aydani; Mickey H. Pittman and Pittman Nursery Corporation, Defendants.
• Court: U.S. District Court — Western District of Arkansas

719 F.Supp.2d 1052

Arcelia MONTIZE, Evencio Garcia and Agustin Garcia Gonzalez, Plaintiffs

v.PITTMAN PROPERTIES LIMITED PARTNERSHIP # 1; D & M Pittman, Incorporated; Dawood Aydani; Mickey H. Pittman and Pittman Nursery Corporation, Defendants.

Case No. 07-CV-1073.

United States District Court,

W.D. Arkansas,

El Dorado Division.

March 16, 2010.

COPYRIGHT MATERIAL OMITTED.

Mike Milligan, Law Office of Mike Milligan, Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, Winford L. Dunn, Jr., Dunn, Nutter & Morgan, L.L.P., Texarkana, TX, for Plaintiffs.

Ronny J. Bell, Jennifer R. Jameson, Karen Talbot Gean, Michael W. Boyd, Bell Law Firm, Magnolia, AR, Stephen D. Wilson, Seth Michael Roberts, Locke Lord Bissell Liddell LLP, Micala Bernardo, Attorney at Law, Dallas, TX, William B. Harrell, Law Office of William B. Harrell, Texarkana, TX, for Defendants.

MEMORANDUM OPINION

HARRY F. BARNES, District Judge.

Before the Court is a Motion for Partial Judgment on the Pleadings filed by Separate Defendant Pittman Nursery Corporation. (Doc. 69). Plaintiffs have not responded, and the time for response has passed. ¹ The Court finds this matter ripe for consideration.

I. BACKGROUND

In this action, Plaintiffs were migrant agricultural workers employed by Pittman Nursery Corporation for seasonal work. They allege that a former Pittman Nursery employee, Dawood Aydani, extorted money from them over the course of several years, in the form of kickbacks, and that such extortion effectively reduced Plaintiffs' net compensation below the federal and state minimum wage. Specifically, Plaintiffs allege that Mr. Aydani required Plaintiffs to pay him $1,000 cash to secure and keep their employment. They further allege that these funds were then shared with some of the other Defendants in this action.

Plaintiffs assert causes of action under the Fair Labor Standards Act (“FLSA”), under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and for negligent supervision. Pittman Nursery asks the Court to dismiss the non-FLSA claims and argues that these claims are preempted by the FLSA.

II. DISCUSSION

When considering a motion for judgment on the pleadings, the Court is required to accept as true all factual allegations set out in the complaint and to construe the complaint in the light most favorable to the non-movant. Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.2009). “ ‘Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir.2006)). A motion for judgment on the pleadings, under Federal Rule of Civil Procedure 12(c), is resolved under the same legal standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). A plaintiff does not need to plead detailed factual allegations to survive a motion for judgment on the pleadings, but the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff may support his or her claims by showing any set of facts consistent with the allegations in the complaint. Id.

A. Preemption

The FLSA authorizes workers to file private actions to recover unpaid wages, damages, costs, and attorneys' fees. 29 U.S.C. § 216(b). Pittman Nursery argues that, because Congress intended that these remedies be exclusive, duplicative claims seeking damages beyond those established under the FLSA are preempted by federal law. In the present case, Pittman Nursery asserts that the FLSA preempts Plaintiffs' state law and RICO claims because these claims are duplicative. The Court does not agree.

The Eighth Circuit has not addressed the issue of whether the remedies under the FLSA are exclusive. The Court is aware that the Fourth Circuit has held that the FLSA preempts claims that “depend on establishing that [the employer] violated the FLSA.” Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (4th Cir.2007). Several other district courts outside of the Eighth Circuit have ruled that state claims are preempted by the FLSA where those claims merely duplicate the FLSA claims. Id. at 194. On the other hand, the Ninth Circuit has held that the FLSA does not preempt common law fraud claims and that the FLSA does not provide exclusive remedies for violating its provisions. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151-53 (9th Cir.2000). Also, several district court cases within the Eighth Circuit have held that the FLSA does not provide the exclusive remedy for its violations and does not preempt state law claims even when there is a common core of operative facts. See Cortez v. Neb. Beef, Inc., 266 F.R.D. 275 (D.Neb.2010); Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 886 (N.D.Iowa 2008); Robertson v. LTS Management Services, LLC, 642 F.Supp.2d 922, 928 (W.D.Mo.2008); Osby v. Citigroup, Inc., No. 07-CV-06085-NKL, 2008 WL 2074102 (W.D.Mo. May 14, 2008). Most district courts in the Eighth Circuit agree that the FLSA's savings clause, which allows states to enact stricter wage, hour, and child labor provisions, indicates that the FLSA does not provide an exclusive remedy for its violations. Bouaphakeo, 564 F.Supp.2d at 882. In fact, “it would seem that state law may offer an alternative legal basis for equal or more generous relief for the same alleged wrongs.” Cortez, 266 F.R.D. at 284.

Here, the Court is more persuaded by the opinions of district courts within the Eighth Circuit and adopts the view that the FLSA does not provide an exclusive remedy for violations of its provisions. Accordingly, the Court does not agree with Pittman Nursery that Plaintiffs' non-FLSA claims are preempted by the FLSA.

B. Failure to State a Claim

Pittman Nursery argues that the Court should dismiss Plaintiffs' non-FLSA claims for conversion, negligent supervision, respondeat superior, retaliation, and relief under RICO and under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), because Plaintiffs have failed to state claims upon which relief may be granted. To survive a motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a claim must have “facial plausibility when the plaintiff pleads a factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The Court must take all facts alleged in the complaint as true, but “threadbare” assertions of a cause of action are insufficient. Charles Brooks Co. v. Ga.-Pa., L.L.C., 552 F.3d 718, 721 (8th Cir.2009); Iqbal, 129 S.Ct. at 1949.

1. RICO

RICO makes it “unlawful for any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). To demonstrate a civil violation of this section, “a plaintiff must establish (1) the existence of an enterprise; (2) defendant's association with the enterprise; (3) defendant's participation in predicate acts of racketeering; and (4) defendant's actions constitute a pattern of racketeering activity.” United HealthCare Corp. v. Am. Trade Ins. Co., 88 F.3d 563, 570 (1996).

Pittman Nursery asserts that Plaintiffs fail to sufficiently allege a RICO enterprise. The “enterprise” element is satisfied by facts showing the existence of a legal entity or a “union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise “must exhibit three basic characteristics: (1) a common or shared purpose; (2) some continuity of structure or personnel; and (3) an ascertainable structure distinct from that inherent in a pattern of racketeering.” Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769-70 (8th Cir.1992). An “enterprise is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” U.S. v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). The existence of an enterprise may be determined if “the enterprise would still exist were the predicate acts removed from the equation.” Handeen v. Lemaire, 112 F.3d 1339, 1352 (8th Cir.1997). The enterprise must be distinct from the person named as the RICO defendant. United HealthCare, 88 F.3d at 570. ²

Here, the complaint contains no clear allegations relating to the existence of an enterprise that includes the Defendants. There is no allegation that this group of Defendants operates as an enterprise. The complaint contains no facts that demonstrate the existence of an enterprise and no facts that would support the conclusion that all Defendants shared the common purpose of extorting money from the Plaintiffs. Accordingly, Plaintiffs have failed to sufficiently plead the existence of an enterprise as required by RICO. For these reasons, Plaintiff's RICO and RICO conspiracy allegations are dismissed as to all Defendants.

2. Negligent Supervision

In their complaint, Plaintiffs allege that Defendants are liable for their negligent supervision of Mr. Aydani. Pittman Nursery argues that Plaintiffs have failed to state a claim for negligent supervision because Plaintiffs have not alleged that any Pittman Nursery employee committed an actionable tort against them. Under a negligent supervision theory, “employers are subject to direct liability for the negligent supervision of employees when third parties are injured as a result of the tortious acts of employees.” Madden v. Aldrich, 346 Ark. 405, 415, 58...