The opinion of the court was delivered by: Chief Judge Curtis L. Collier
In this lengthy, vigorously contested civil case, defendants Tyson Foods, Inc. et al. ("Defendants") have moved for summary judgment (Court File No. 449).*fn1 After considering the filings of the parties and the applicable law, for the following reasons the Court will GRANT Defendant's motion.
This case has a long history with this Court. It was initially filed on April 2, 2002. (Complaint, Court File No. 1). The case was dismissed for failure to state a claim on July 16, 2002 (Court File No. 22). Upon appeal, this dismissal was reversed by the United States Court of Appeals for the Sixth Circuit and the case was remanded to this Court (Court File Nos. 25, 26). Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004). This Court denied Defendants' Motion for Judgment on the Pleadings (Court File Nos. 162, 174 ) on September 18, 2006. On October 10, 2006, the Court granted the Motion to Certify Class of plaintiffs Birda Trollinger et al. ("Plaintiffs") (Court File Nos. 121, 183). On May 29, 2007 the Court denied Defendants' second Motion to Dismiss (Court File Nos. 259, 310)
Plaintiffs bring this action under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962, 1964. Plaintiffs are a class of current and former employees at several chicken processing plants of Tyson Foods, Inc. ("Tyson") who are authorized to work in the United States (Court File No. 460, Appendix A). Plaintiffs allege Defendants were members of a conspiracy to knowingly bring illegal immigrants into the United States and employ them in violation of 8 U.S.C. § 1324(a)(3)(A). This alleged conspiracy involved prolonged efforts to harbor and conceal these illegal immigrants from detection by the proper authorities, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Plaintiffs allege, by hiring and harboring illegal immigrants, Defendants were thus able to pay less than the going market wage to their employees. As a result, Plaintiffs, as legally-authorized employees, were paid less than they should have been as a result of Defendants' use of illegal alien labor. Plaintiffs seek to recover damages in the amount of triple the difference between their artificially-depressed wages and the competitive market wages Plaintiffs should have been paid, as provided by 18 U.S.C. § 1964(c) (Court File No. 115, p. 16).
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). That is, the moving party must provide the grounds upon which it seeks summary judgment, but does not need to provide affidavits or other materials to negate the non-moving party's claims. Celotex, 477 U.S. at 323. The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, and must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
Plaintiffs bring their claims under RICO. RICO itself does not contain specific substantive offenses, but rather adopts substantive offenses from other statutes as predicate offenses. Thus, Plaintiffs must satisfy all the elements under RICO, which deals with the organizational structure by and manner in which the predicate offenses were violated, as well as the elements required by the predicate offenses. Here, Plaintiffs have alleged violations of 18 U.S.C. § 1962(c), for conducting or managing a RICO enterprise, and 18 U.S.C. § 1962(d), for conspiring to commit a 1962(c) offense. These RICO offenses are predicated upon immigration violations, 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(3)(A).
To prove a violation of 18 U.S.C. § 1962(c), Plaintiffs must show Defendants (1) conducted or participated in (2) the activities of an enterprise (3) through a pattern (4) of racketeering activity. See, e.g., Reves v. Ernst & Young, 507 U.S. 170, 177 (1993). To prove a violation of 18 U.S.C. § 1962(d), Plaintiffs must show (1) a conspiracy (2) with the purpose of violating 18 U.S.C. § 1962(c). See, e.g., Beck v. Prupis, 529 U.S. 494, 506 (2000). As a civil RICO action, Plaintiffs also need to prove (1) a requisite injury to "business or property," and (2) that the injury was "by reason of" the predicate RICO violation. 18 U.S.C. § 1964 (c); see, e.g., id. at 505-06.
2. Predicate Immigration Offenses To support their RICO claims, Plaintiffs have alleged Defendants committed two types of predicate offenses. First, Plaintiffs allege Defendants, during a twelve-month period, knowingly hired at least ten individuals with actual knowledge those individuals were unauthorized to work in the United States and were brought into the country for purposes of illegal employment. 8 U.S.C. § 1324(a)(3)(A).*fn2 Second, Plaintiffs allege Defendants knowingly, or with reckless disregard of the fact, harbored or concealed illegal aliens. 8 U.S.C. § 1324(a)(1)(A)(iii).
B. Defendants' Motion for Summary Judgment
Defendants make six arguments to support their motion for summary judgment:
(1) there is no evidence of illegal hiring;
(2) there is no evidence of damages;
(3) there is no evidence the damages were proximately caused by the RICO violations;
(4) there is no evidence Defendants' had "actual knowledge" pursuant to 8 U.S.C. § 1324(a)(3)(A);
(5) there is no evidence of damages or a pattern of harboring for the 8 U.S.C. § 1324(a)(1)(A)(iii) offense; and,
(6) there is no evidence of a racketeering enterprise (Court File No. 450).
As previously stated, Plaintiffs must provide sufficient evidence to support their claims on each material element of both the predicate offenses and the RICO claims. Thus, each of Defendants' arguments, if shown to be correct, independently warrants summary judgment. The Court considers these arguments in turn.
1. Evidence of Illegal Hiring with Requisite Knowledge
Plaintiffs must provide evidence, during a twelve-month period, Defendants knowingly hired at least ten individuals with actual knowledge those individuals were unauthorized to work in the United States and were brought into the country for purposes of illegal employment. See 8 U.S.C. § 1324(a)(3)(A).
To carry their burden of proof under this offense, one would expect Plaintiffs to first present evidence of the illegal status of the workers. This could be established, among other ways, by the testimony of the illegal aliens themselves, their co-workers, their associates, those who secured employment for them at the Tyson facilities, or their supervisors or managers. It could also be established by admissible government records, such as records of deportations or other official action establishing the employees in question were illegal aliens.
Once sufficient employees were shown to be illegal aliens, Plaintiffs would then have to show Defendants hired the illegal aliens knowingly. To establish this, one would expect Plaintiffs to present either testimonial or documentary evidence of Defendants' knowledge that at the time these illegal aliens were hired, Defendants knew they were illegal aliens.
Plaintiffs have chosen not to present evidence one would typically expect. Rather, Plaintiffs have selected a non-traditional approach. Unfortunately for Plaintiffs, their chosen path falls short of the evidence required by 8 U.S.C. § 1324(a)(3)(A).
In an effort to present sufficient evidence concerning the presence of illegal aliens and Defendants' alleged knowledge of their presence, Plaintiffs offer only (a) class counsel's unfounded determination some employees are illegal aliens, (b) an excerpt from the transcript of the testimony of a witness at a previous criminal trial, and (c) various Tyson written personnel communications (Court File No. 467, pp. 5-8).*fn3
a. Class Counsel's Analysis
Class counsel seeks to introduce their own conclusion that 91 of 497 sampled Tyson employees are not authorized to work in the United States (Court File No. 467, p. 5). This evidence is insufficient to avoid summary judgment because class counsel's conclusions are not probative evidence which would support Plaintiffs' claim, but rather mere allegation without factual basis.*fn4 Class counsel's reasoning is as follows: Michael Cutler concluded in his expert report that an alien who has lived in the United States for several years will generally have a basic understanding of the English language (Court File No. 413, Exhibit 1, pp. 4, 7). Extrapolating from Mr. Cutler's testimony, Plaintiffs conclude every one of the 497 applicants who did not complete their application in English, where that applicant claimed to be a "U.S. citizen" or "Lawful Permanent Resident Alien," "should be suspected of using false or fraudulent documents" (Court File No. 467, p. 5). Further extrapolating, Plaintiffs then conclude all these 91 applicants who are suspected of using false or fraudulent documents are illegal immigrants (id.).
Class counsel's conclusion lacks factual support. First, Mr. Cutler's testimony only states aliens who have been in the United States for several years generally have an understanding of English; it does not support the conclusion that all applicants who do not have sufficient English proficiency to, or choose not to, fill out the employment application forms in English are illegal (Court File No. 413, Exhibit 1, pp. 4, 7). Second, even granting Plaintiffs' assumption that all non-English applications raise valid suspicion of the applicants being unauthorized, that does not lead to class counsel's conclusion that all of the suspicious applicants are illegal ...