The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is Defendants Tyson Foods, Inc., John Tyson, Archibald Schaffer III, Richard Bond, Kenneth Kimbro, Greg Lee, Karen Percival, Ahrazue Wilt, and Tim McCoy's (collectively, "Defendants" or " Tyson")' motion to dismiss (Court File No. 259) filed on March 2, 2007. Plaintiffs Birda Trollinger, Virginia Bravo, Kelly Kessinger, Idoynia McCoy, Regina Lee, Patricia Mims, Lori Windham and Alexander Howlett (collectively "Plaintiffs") filed a response (Court File No. 282), and Defendants filed a reply to Plaintiffs' response (Court File No. 288). Recently, Plaintiff filed a supplemental brief (Court File No. 307) to inform the Court of the recent decision in Brewer v. Salyer, No. CV F 06-01324, 2007 WL 1454276 (E.D. Cal. May 17, 2007)*fn1 , and Defendants, in turn, filed a response to Plaintiffs' supplemental brief (Court File No. 308). After carefully considering the arguments of counsel and the applicable law, the Court will DENY Defendants' motion to dismiss (Court File No. 259).
Although Defendants do not state the theory under which they bring this motion, the Court considers it being brought pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure requires the Court to construe the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc., 856 F.Supp. 1229, 1232 (S.D. Ohio 1994), accept all the complaint's factual allegations as true, Bloch, 156 F.3d at 677; Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir. 2001); Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir. 1994); Broyde, 13 F.3d at 996; Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990), cert. denied, 498 U.S. 867 (1990); Phillips v. Capital Toyota, Inc., No. 1:05-CV-215, 2006 WL 1408688, at *1 (E.D. Tenn. May 22, 2006); Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F.Supp. 1023, 1024 (E.D. Tenn. 1996). The Court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting courts should not weigh evidence or evaluate the credibility of witnesses); Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller, 50 F.3d at 377; Louis Trauth Dairy, Inc., 856 F.Supp. at 1232.
In deciding a motion to dismiss, the question is "not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). However, bare assertions of legal conclusions are insufficient. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). The "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. The purpose of a motion pursuant to Fed.R.Civ.P. 12(b)(6) is to allow the defendant to test whether, as a matter of law, the plaintiff is entitled to the legal relief sought even if all the allegations in the complaint are true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).
II. RELEVANT FACTS AND PROCEDURAL HISTORY
This case commenced when Plaintiffs filed their complaint on April 2, 2002 (Court File No. 1). Subsequently, Plaintiffs filed amended complaints with the latest filed on June 24, 2005 (the Court will simply refer to the latest filed complaint as "Complaint") (Court File No. 3, Plaintiffs' First Amended Complaint; Court File No. 115, Plaintiffs' Second Amended Complaint). In each complaint, Plaintiffs allege a cause of action based upon the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964.*fn2 Plaintiffs' RICO cause of action is based upon 18 U.S.C. § 1962(c),*fn3 which makes it unlawful to conduct the affairs of a RICO enterprise through a pattern of racketeering, and § 1962(d)*fn4 , which makes it unlawful to conspire to commit a RICO violation. Racketeering activities are defined in 18 U.S.C. § 1961.
Plaintiffs rely upon § 1961(1)(F) which defines a racketeering activity as "any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain." Specifically, Plaintiffs allege a pattern of racketeering activity consisting of predicate racketeering acts of knowingly hiring 10 illegal aliens, during any 12-month period,*fn5 and illegally harboring illegal aliens.*fn6 Both of these activities are made unlawful by 8 U.S.C. § 1324.
Defendants have filed two previous motions to dismiss or for judgment on the pleadings (Court File Nos. 11, 162).*fn7 The relevant facts in this case were previously summarized by the Court in the Memorandum (Court File No. 174) explaining the Court's reasoning supporting its decision on the Defendants' most recent motion for judgment on the pleadings. The Court does not deem it necessary to restate the facts here but will refer to the facts stated in that memorandum as necessary.
In this motion, Defendants seek dismissal of the Complaint because Defendants allege the Complaint fails to allege a necessary RICO predicate act, that is, Defendants "'knowingly hire[d] for employment at least 10 individuals with actual knowledge' that the individuals are 'unauthorized' aliens and that those aliens were 'brought into the United States in violation [8 U.S.C. § 1324],'" and the Complaint fails to allege a viable RICO enterprise (Court File No. 259, Defendants' Motion to Dismiss ("Def.'s MTD"), at p. 7-8).
The proper starting point in the analysis is to examine the allegations contained in the Complaint. Next, the Court must compare those allegations with the requirements of the law as stated above.
The second amended complaint is sixteen pages in length and attempts to set out the essence of Plaintiffs' claims. The Complaint alleges Defendants "knowingly hir[ed] a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages." Compl. at ¶2. Beginning on page 5, the Complaint details what Plaintiffs allege Defendants did to subject them to liability. Under the heading "The Illegal Immigrant Hiring Scheme: Tyson Requires Its Hiring Personnel To Be Willfully Blind And Subvert The Law Against Hiring Unauthorized Immigrants," the Complaint alleges Defendants "engaged in a long-term pattern and practice of violating [the Immigration Reform and Control Act*fn8 ] and § 274 of the Immigration and Nationality Act, 8. U.S.C. § 1324(a)(3)(A) . . . ." Compl. at ¶24. In support of the allegation Defendants engaged in a pattern and practice of violating and subverting the law, the Complaint states Tyson signs Employment Eligibility Verification Forms (I-9 forms) in mass quantities before any documents are inspected, more than three days after new hires have been employed, and based upon a review of copies of documents rather than reviewing the original documents. Id. at ¶24(a). The Complaint further alleges Tyson prohibits its employees from taking into account obvious facts which indicate that documents do not relate to the people tendering them; rehires persons whom it previously hired under different names, usually after a short absence; hires workers who appear decades younger than the pictures on their stolen identity documents; uses temporary employment placement services to hire illegal immigrants and then "loan" them to Tyson for a fee; and gives employees leave to "get good documents" after Tyson learns the initial documents submitted by the illegal alien actually belong to someone else; these employees are then rehired under the new identities, but often retain their seniority based upon their initial hire date. Id. at ¶24(b)-(f). According to the Complaint, Tyson supervisors often asked those employees, "Who are you this week?" Id. at ¶24(f). Plaintiffs also allege Tyson provided new hires with money to obtain housing, food, and other living supplies as well as transportation to and from Tyson facilities. Id. at ¶24(g). Plaintiffs allege the described policy was implemented by Tyson's Senior Vice President of Human Resources in the late 1980's and has been approved by all Defendants. Id. at ¶25.
In the next section of the Complaint, "Tyson Uses The Basic Pilot Program As A Fig Leaf To Subvert IRCA," Plaintiffs claim Tyson "has used the federal government's Basic Pilot Program*fn9 in order to give the appearance of complying with IRCA while the company is actively subverting the law." Id. at ¶26. The Complaint alleges Basic Pilot "does not establish that the person presenting the documents is the issuee." Id. at ¶27. According to the allegations, Tyson does not verify its employees are not illegal aliens. "Thus, Tyson is abusing Basic Pilot to subvert its IRCA obligations, turning the program into a fig leaf to ward off future raids and enforcement actions." Id.
Following this section, the Complaint details what it says is the story of one illegal alien improperly using the name, social security number and birth certificate of a United States citizen named Dalia Gutierrez. Plaintiffs allege Tyson learned this person was an illegal alien and conducted an investigation. Compl. at ¶31. Following the investigation, Tyson simply accepted another set of documents in the name of Dalia Gutierrez. Id. This section further alleges "Tyson has hired hundreds of 'Dalia Gutierrez' workers at each of the facilities each year since 1996 in the same manner. In every case, Tyson's hiring personnel knew that the workers were unauthorized for employment but still employed the workers, pursuant to the Illegal Immigrant Hiring Scheme, established by the individual defendants." Id. at ¶33.
On page 8 of the Complaint, under the heading "Tyson Harbors Illegal Immigrants," the Complaint says numerous Tyson facilities have been raided or investigated by federal immigration authorities. Id. at ¶34. It goes on to allege when Tyson hears rumors of an impending raid, "Tyson supervisors tip off known illegal immigrants and recommend they leave the plant." Id. The Complaint also alleges "Tyson rents trailers and other cheap housing units for its illegal workers, typically through front companies. It uses fronts because many landlords refuse to rent housing to Tyson, knowing it will be used to harbor illegal immigrants. This is particularly prevalent in the area of northern Alabama know as 'Little Tijuana,' where the facilities in that state are located. This is another widespread method of harboring illegal immigrants." Id. at ¶35.
Following these factual allegations, the Complaint sets out two Racketeering Acts, (1) knowingly hir[ing] more than 10 unauthorized, illegal immigrants each year, since the enactment of § 1324(a)(3)(A), in each facility, and (2) violating § 1324(a)(1)(A)(iii), by harboring unauthorized, illegal immigrants with knowledge or reckless disregard that each illegal immigrant entered the United States illegally. Id. at ¶¶36-37. Plaintiffs allege Tyson's hiring of the illegal aliens constitutes harboring as well as Tyson's actions in shielding the illegal aliens from detection by federal immigration officials and its actions in providing the illegal aliens with housing. Id. at ¶37.
In the next major heading, "The RICO Enterprises," the Complaint sets out three separate collectives it alleges constitute enterprises under the RICO statute. First, it alleges Tyson's association with certain temporary employment services constitutes a RICO enterprise. Compl. at ¶¶39-45. Second, it alleges the individual defendants entered into a conspiracy to carry out the alleged Illegal Immigrant Hiring Scheme. Id. at ¶¶46-48. These individual defendants agreed this scheme would be conducted through Tyson, "which is an enterprise." Id. at ...