~TO~’ & MKI.ER O3URT REPORTER5 601 W. RIVERSIDE
SUITE 1030 SPOKANE, WA

1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900
3 Seattle, WA 98101 (206) 623-7292

4 Howard W. Foster

5 JOHNSON & BELL, LTD.

222 N. LaSalle Street, Suite 2200

6

Chicago, IL 60601 (312)372-0770

7 Attorneys for Plaintiff

8

ORIGINA[L
FILED 1N THE U.S. DISTRICT COURT
~STERN DISTRICT OF WASHINGTON
HAR 2 8 2000
JAMES ~N, CLERK
._OEPUTY --- ’ SPOKAI~E, ~A~HINL~TON

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12

OMLEINVDIIAOLMAE,NinDdiOviZduAalalynd~ J~UnV~/e~l~.,fU 0~. " 8 0 2 4 == ~ of all others similarly situate~ J,

13

Plaintiffs,

14

15 ZIRKLE FRUIT CO.,a Washington

16

corporation, MATSON FRUIT COMPANY, a Washington corporation,

17

and SELECTIVE EMPLOYMENT AGENCY, INC., a Washington

18 corporation,

CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM

19

Defendants.

20

21
I. NATURE OF ACTION
22
1. This is a class action brought on behalf of all persons legally authorized
23
to be employed in the United States ("U.S.") who have been hired by defendants
24
Zirkle Fruit Co. (Zirkle), and Matson Fruit Company (Matson) as hourly wage earners
25

26

COMPLAINT
1341L I C’ O010 BSC.DOC

-1-

1 and who were recruited or referred to Zirlde and Matson by Selective Employment

2 Agency.

3

2. Defendants Matson and Zirkle, corporations engaged in the business of

4 growing, warehousing, packing and selling apples and other types of produce, have

5 embarked on a scheme to employ workforces substantially comprised of

6 undocumented immigrants who have no legal right to be employed in the U.S.

7 (hereinafter the "Illegal Immigrant Hiring Scheme"). Defendants’ scheme violates the 8 Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et

9 seq., and Washington state law.

10

3. Matson and Zirkle are conducting the Illegal Immigram Hiring Scheme

11 for the purpose of depressing employee wages below the Ievels they would otherwise

12 be required to pay if they were unable to hire substantial numbers of illegal

13 immigrants who, due to their economic situation and fear of asserting their rig~hts due

14 to their illegal status, can be easily exploited and who are therefore willing to work for

15 depressed wages.

16

4. The Illegal Immigrant Hiring Scheme is perpetrated b:/ defendants

17 Matson and Zirlde through their participation in association-ln-fact enterprises,

18 comprised of each defendant and Selective Employment Agency (herea~er

19 "Selective"), a corporation organized under the laws of the State of Washington and

20 conducting business, employee recruiting and placement in Washin~on. Defendants

21 Matson and Zirkte use Selective as a "front company" for the purpose of perpetrating

22 this scheme and with the hope that each will be thus shielded from charges that they

23 violated federal law.

24

5. The Illegal Immigrant t-Iiring Scheme has resu/ted in the depression or

25 lowering of wages paid to hundreds, perhaps thousands, of persons who are legally

26 authorized to work in the U.S.

COMPLAINT

2

1

6. Defendants’ scheme involving the knowing employment of illegal

2 immigrants in violation of § 274 of the Immigration and Nationality Act is ongoing,

3 threatening to continue, victimizing more persons every day, unless and until halted

4 by judicial intervention.

5

II. PARTIES, JURISDICTION AND VENUE

6

7. Plaintiffs Olivia Mendoza and Juana Mendiola are, and at all relevant

7 times have been, residents of the State of Washington and of this District and are all

8 lawfully entitled to be employed in the U.S. Each of the plaintiffs was employed by

9 defendant Zirkle as laborers.

10

8. Zirkle Fruit Company is a corporation organized under the taws of the

11 State of Washington with its principal place of businesses located in Selah, 12 Washington. Additionally, as detailed below, it has committed a pattern of

13 racketeering activity in this District and it operates its business in this District.

14

9. Matson Fruit Company is a corporation organized under the laws of the

15 State of Washington with its principal place of business located in Selah,

16 Washington. Additionally, as detailed below, it has committed a pattern of

17 racketeering activity in this District and it operates its business in this District.

18

10. Defendant Selective Employment Agency is a corporation organized

19 under the laws of the State of Washington with its principal place of business located

20 in Yakima, Washington. Defendant Selective has an existence and structure separate

21 and apart from the RICO enterprise described herein, including but not limited to its

22 incorporation under the laws of Washington.

23

11. This Court has subject matter jurisdiction over Count I under the federal

24 question doctrine pursuant to 28 U.S.C. § 1331 and 18 U.S.C. §§ 1964(a). This Court

25 may exercise supplemental jurisdiction over Count II pursuant to 28 U.S.C.

26 § 1367(a).

COMPLAINT
134810 0010 BSC.DOC

- 3-

1

12. Venue is proper in this District because the illegal act~ giving rise to finis

2 ca.se occurred in this District and all of the parties reside and are domiciled here.

3

Ill. CLASS ALLEGATIONS

4

13. This action is brought and may be maintained as a class action pursuant to

5 Fed. 1L Civ. P. 23Co)(2) and (b)(3). Plaintiffs bring this action on behalf of themselves

6 and all other persons, legally authorized to be employed in the U.S., who have been

7 hired and/or employed by Matson and Zirkle as a result of recruitment or referral by

$ Selective (the "Class").

9

14. The Class for whose benefit this action is brought is so numerous that

10 joinder of all Class members is impracticable. The actual number can only be

11 ascertained through discovery of defendants’ books and records.

12

15. Among the questions of fact and law that are common to the Class are:

13

a. Whether Matson and Zirkle have and are currently engaged in a

14 scheme to employ illegal immigrant workers in order to depress the hourly wages they

15 must pay to workers;

16

b. Whether the Illegal Immigrant Hiring Scheme has caused Class

17 members’ wages to be depressed;

18

c. Whether Matson and Zirkle are conducting the Illegal Immigrant

19 Hiring Scheme with the knowing assistance of Selective;

20:

d. Whether the Illegal Immigrant Hiring Scheme has proximately

21 caused damage to plaintiffs and Class members by depressing theix wages;

22’

e. Whether the Illegal Immigrant Hiring Scheme violates the

23 Immigration and Nationality Act and RICO;

24

f. Whether Matson and Zirlde should be enjoined from fu_~er

25 racketeering activity; and

26

COMPLAINT

- 4 -

1

g. Whether Matson and Zirkle have engaged in a civil conspiracy

2 with Selective.

3

16. Plaintiffs’ claims are typical of those of the members of the Class

4 inasmuch as they are caused by the Illegal Immigrant Hiring Scheme. Plaintiffs seek

5 no relief that is antagonistic or adverse to other Class members.

6

17. Plaintiffs are committed to the vigorous prosecution of this action and

7 have retained counsel who are competent in the prosecution of class actions, RICO

8 and complex litigation. Accordingly, plaintiffs will fairly and adequately protect and

9 represent the interests of the Class.

10

18. Questions of law or fact that are common to the members of the Class are

11 substantially similar and predominate over any questions affecting only individual

12 Class members, and a class action is the only appropriate method for the fair and

13 efficient adjudication of this controversy for the following reasons, among others:

14

a. The individual amounts of damages involved, while not

15 insubstantial, are generally not large enough to justify individual actions;

16

b. The costs of individual actions would unreasonably consume the

17 amounts that would be recovered;

18

c. Individual actions would unduly burden the judicial system; and

19

d. Individual actions brought by Class members would create a risk

20 of inconsistent results and would be unnecessarily duplicative of this litigation.

21

19. Plaintiffs anticipate no difficulty in the management of this action

22 because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable

23 through discovery, the identities of the members of the Class are known to Matson

24 and Zirkle and damages can be calculated through expert testimony.

25

26

COMPLAINT
1348 I0 00110 BSC.DOC

- 5 -

1

IV. STATEMENT OF OPERATIVE FACTS

2 A. The Illegal Immigrant Hiring Scheme

3

20. Eastern Washington is the heart ofWashington’s farned apple and fi~uit

4 industry. This area, which is uniquely situated for growing fruit due to a combination

5 of abundant sunshine and cheap irrigation, has over the years generated hur~dreds of

6 millions of dollars in annual revenues and has produced fruit recognized for its quality

7 throughout the United States and m~Lny foreign countries.

21. In Washington state there are more than 15,000 fruit packers and 30,000

9 orchard pickers of fruit. Many operations require u~skilled, low-wage laborers for

10 harvesting and packing and other related tasks requiring manual labor. While the

11 industry now generates over $1 billion, many of~ese workers live in poverty.

12

22. Defendants Matson and Zirkle operate fruit orchards ~nd packing houses.

13 Matson and Zirkle are motivated to and do keep labor costs as low as possible and,

14 due to a variety of complex social and economic factors, the i~duslry’s demand for

15 low-skilled workers has attracted many workers of Mexican citizenship. Many of

16 these Mexican nationals are illegal immigrants who have been sm~tggled into the U.S.

17 and/or are harbored in the U.S. by relatives, friends and employers. Matson and

18 Zirkle, with the essential role pIayed by Selective (as detailed below), knowingly hire

19 workers of illegal status because the illegal workers are willing to accept wages that

20 are significantly lower than wages would be in a labor market comprised solely of

21 legally authorized workers. Thus, Matsor~ and Zirkle have willfully engaged in the

22 Illegal Immigrant Hiring Scheme by continually and knowingly hiring illegal 23 immi~ants.

24

23. This practice ha~ been so flagrant that defendant~ and other~ in the

25 industry have been targeted for raids and other law enforcement procedures by the

26 U.S. Department of Justice, Immigration and Naturalization Service ("the INS"). One

COMPLAINT
1345.10 o01o

1 such procedure was "Operation Snowbird," a crackdown on illegal immigrant hiring 2 by apple growers, including defendant Matson, culminating in orders issued by the

3 INS in early 1999 to terminate many illegal immigrant workers. Prior to this

4 crackdown, Zirkle had been the subject of a previous investigation by the INS.

5

24. As a result of or during the course of Operation Snowbird, the INS

6 completed audits of the I-9 forms and other personnel records maintained by Matson.

7 The INS concluded that Matson had employed hundreds of illegal immigrants in

8 knowing or reckless disregard of their illegal status during the previous several years,

9 and that the practice was ongoing.

10

25. Plaintiffs are not aware of the precise number of illegal immigrants who

11 are or have been employed by Matson and Zirkle, because such information is in their

12 possession, but up on information and belief, plaintiffs allege, that the number 13 employed by each was in excess of 50, and as much as fifteen times that number.

14

26. The use of illegal aliens represents a pattern of unlawful conduct that has

15 occurred over a number of years and which is continuing.

16

27. For example, the INS determined that in 1998 defendant Matson had 661

17 employees working in its orchard and warehouse, and that 493 of them (74%) had

18 been hired with false/fraudulent documents supposedly establishing their right to be

19 employed. Thus, they were illegal immigrants and were hired by Matson as part of

20 the Illegal Immigrant Hiring Scheme.

21

28. Plaintiffs believe, and thereon allege, that many of these 493 illegal

22 immigrants were hired by Matson in violation of § 274(a)(3) the Immigration and 23 Nationality Act, which provides that:

24

Any person who, during.any 1.2~-mo,n.thper, iod, ~,lsnow~in~ly

hires for eml~loy~_ ent at least 10 inaivic~ua~s wim actua~

25

knowledge that the individuals are aliens.., shall be fined

under Title 18, or imprisoned for not more than 5 years, or

26

both.

COMPLAINT
1348 10 0010 BSC DOC

- 7 -

1 8 U.S.C. § 1324(a)(1)(B)(3)(A).

2

29. Specifically, Matson hired certain of the 493 employees with actual

3 knowledge that each person was an illegal immigrant (alien) who was not eligible to

4 be employed in the U.S., and Matson also knew that each person was either smuggled

5 into the U.S. and/or harbored once he or she was in the U.S. Further, Matson hired at

6 least 50 of these 493 people in 1998, and at least 50 in 1997 and 1996. Further,

7 plaintiffs believe, and thereon allege, that Matson has continued the Illegal Immigrant

8 Scheme in 1999 (by hiring at least 50 more), and through the present. Plaintiffs are

9 informed and believe, and thereon allege, that during the last three years Matson

t0 maintained a work force comprised of approximately 50% illegal immigrants. The

11 INS has made similar findings of violations of the Act committed by Zirkle.

12

30. It is also well known in the industry by growers and packers which of

13 those persons in the workforce are illegal aliens. There is a conspiracy of silence, but

14 the fact is that Matson and Zirkle have been raided by the INS. When the INS arrives

15 to inspect, workers often disappear, putting Matson and Zirkle on notice of their

16 illegal workforce. Matson is alleged to maintain two sets of employment documents:

17 one set for the INS that carefully excludes known illegal workers, and another set that

18 includes them.

19

31. In many instances, Matson and Zirkle have rehired certain illegal

20 immigrants, even after being informed by the INS that they are ineligible for

21 employment, under different names and with different social security numbers, which

22 defendants know are fraudulent.

23

32. Plaintiffs allege that defendant Zirkle has employed at least 50 illegal

24 immigrants, with actual knowledge that each one was illegal and ineligible for

25 employment, and with knowledge that each one was either smuggled into the U.S. or

26 harbored once in the U.S.

COMPLAINT
1348 I0 0010 BSC.DOC

- 8 -

1 B. The I-9 Mail Fraud Scheme

2

33. Matson and Zirkle have engaged in another scheme in violation of RICO

3 - "The I-9 Mail Fraud Scheme" - simultaneously with the Illegal Immigrant Hiring

4 Scheme, in order to effectuate the Illegal Immigrant Hiring Scheme.

5

34. The I-9 Mail Fraud Scheme works as follows: Whenever Matson and

6 Zirkle employ an illegal immigrant, they complete (or, in the alternative, they direct

7 Selective to complete, and Selective agrees to so complete, and to cause to be

8 deposited in the U.S. mail), an I-9 form (otherwise known as an "Employment

9 Eligibility Verification Form") that is sent to the INS. Matson did this and/or directed

10 Selective to do so for each of the above-referenced 493 illegal immigrants.

11

35. The I-9 form requires the employer to certify, under penalty of perjury,

12 the following: "I have examined the document(s) presented by the above-named

13 employee, that the above-listed document(s) appear to be genuine and to relate to the

14 employee named ... and that to the best of my knowledge the employee is eligible to

15 work in the U.S." Matson and/or Selective signed many of the 493 I-9 forms with

16 actual knowledge that the person being employed was ineligible for employment, thus

17 violating the "preparer certification."

18

36. Matson and Selective hoped that the INS would accept the data

19 represented on each I-9 form, would not investigate the false/non-existent Social

20 Security numbers and/or other indices of work eligibility, and take no action against

21 them or the illegal immigrants for their violations of the Immigration and Nationality

22 Act. Thus, the Illegal Immigrant Hiring Scheme would be effectuated.

23

37. Each and every mailing of an I-9 form to the INS for the purpose of

24 facilitating the hiring of an illegal immigrant violates the mail fraud statute, 18 U.S.C.

25 § 1341.

26

COMPLAINT
1348 l0 0010 ~.SC DOC

- 9 -

1

38. Matson has perpetrated, and is continuing to perpetrate, a long-term mail

2 fraud scheme against the INS simultaneously with the Illegal Immigrant Hiring

3 Scheme that is perpetrated against the Class. Discovery will enable plaintiffs to

4 obtain the dates of the mailings of the false I-9 forms and the names of the Matson

5 agents/officers who caused them to be mailed. Plaintiffs do not, and cannot, have

6 access to these facts without discovery.

7

39. Defendant Zirkle is similarly engaged in the I-9 Mail Fraud Scheme for

8 the same purpose and in the same manner as described above. It has perpetrated this

9 scheme in the same relationship with Selective, as described below.

10 C. The Enterprises

11

40. Matson and Zirkle have each entered into contractual agreements with

12 Selective, a separate legal entity under separate ownership. Such agreements provide

13 for close cooperation between and among the two businesses for the employment of

14 hourly wage workers, a joint venture. The agreements establish a complex legal

15 relationship between Matson/Zirkle and Selective by which Matson/Zirkle have

16 directed Selective to employ workers and then "loan" them to Matson/Zirkle, who

17 determine when to terminate the employment of each worker, and so direct Selective,

18 which follows these directives. Accordingly, while the workers take direction from

19 Matson/Zirkle’s foremen and managers, they are paid by Selective. Selective has also

20 assumed the responsibility for withholding taxes from the workers’ wages and

21 remitting this money to the U.S. Government. In exchange for these responsibilities,

22 Matson/Zirkle reimburse Selective for the workers’ wages and pay fees to Selective

23 for its role in the joint venture.

24

41. Matson and Zirkle have entered into these joint ventures for the primary

25 purpose of shifting certain aspects of the Illegal Immigrant Hiring Scheme from

26 themselves to an outside firm. They believe that this arrangement will conceal the

COMPLAINT
12.48. I 0 0010 BSC.DOC

o 10 -

1 Illegal Immigrant Hiring Scheme, making detection by the INS more difficult, and, if

2 detected, enable defendants to shift blame onto Selective.

3

42. In actuality, defendants Matson/Zirkle conduct the scheme by directing

4 Selective to carry out certain aspects of it. Matson and Zirkle have reversed

5 Selective’s usual manner of conducting business, which is to reject candidates for

6 employment when they offer suspect forms of work authorization documents. After

7 Matson and Zirkle have gained considerable influence with Selective, and induced it

8 to execute the Illegal Immigrant Hiring Scheme through the joint venture agreements,

9 it welcomes (and, in fact, accepts) individuals who are illegal immigrants and

10 ineligible for employment. Selective has been thoroughly corrupted into acting as a

11 tool of Matson and Zirkle to enable them to commit more immigration crimes, and to

12 do so more surreptitiously than they could otherwise commit.

13

43. Plaintiffs believe, and thereon allege, that, in carrying out the joint

14 venture with Selective, Matson and Zirkle have regular meetings with Selective

15 officers and managers to allocate proceeds from the Illegal Immigrant Hiring Scheme,

16 direct Selective as to the numbers of illegal immigrants needed and, as the needs

17 change from week to week, reject certain candidates for hiring who are known to be

18 legal aliens or U.S. citizens and keep abreast of all INS law enforcement activity in

19 the area in order to elude detection.

20

44. Accordingly, Matson and Zirkle and Selective have regularized their

21 relationships through months and months of ongoing cooperation and heavy-handed

22 intervention by Matson and Zirkle in Selective’s conduct.

23

45. Thus, Matson Selective and Zirkle Selective each constitute association-

24 in-fact enterprises, affecting interstate commerce, under 18 U.S.C. § 1961(4).

25

26

COMPLAINT
1~48 10 OOlO BSC DO(’

- 11 -

1 D. The Plaintiffs Are Victims of the Illegal Immigrant Hiring Scheme

2

46. Plaintiffs, all of whom are legally authorized to be employed, have all

3 been employed by Zirkle Fruit Co. During 1999 at wages that are substantially

4 depressed because of the Illegal Immigrant Hiring Scheme.

5

47. Plaintiffs’ wages are below the wage rate at which a labor market

6 comprised of workers legally entitled to work - namely, one without the operation of

7 the Illegal Immigrant Hiring Scheme, would be set.

8

V. THE RICO VIOLATIONS

9

48. Section 1961(1)(F) of RICO provides in relevant part that racketeering

10 activity includes "any act which is indictable under the Immigration and Nationality

11 Act, § 274... 277... or 278... if the act.., was committed for the purpose of financial

12 gain." Section 274 of the Immigration and Nationality Act, as detailed above,

13 codified at 8 U.S.C. § 1324(a)(3)(A), makes illegal the knowing employment of 10 or

14 more individuals during any 12-month period.

15

49. Section 1961(1)(B) of RICO further provides that mail fraud, 18 U.S.C.

16 § 1341, constitutes racketeering activity.

17

50. As set forth above, defendants Matson and Zirkle have each committed

18 the predicate RICO violations over a sustained period.

19

COUNT I

20

FOR VIOLATIONS OF RICO

(18 U.S.C. § 1962(c))

21

51. Plaintiffs incorporate the preceding allegations as if fully set forth above.
22

52. This claim is asserted against Matson and Zirkle. Both are "persons," as
23

defined in 18 U.S.C. § 1961(3).
24

25

53. As stated above, Zirkle Selective and Matson Selective each constitute

an association-in-fact enterprise under 18 U.S.C. § 1961 (4).
26

COMPLAINT
13Z.8 10 9010 BSC.DOC

- 12 -

1

54. Defendants’ violations of the Immigration and Nationality Act and the

2 federal mail fraud statute, as detailed in this Complaint, constitute a "pattern of

3 racketeering activity" under 18 U.S.C. § 1961(5).

4

55. Matson and Zirkle have been and are presently violating 18 U.S.C.

5 § 1962(c) of RICO, which provides that it "shall be unlawful for any person ...

6 associated with any enterprise ... to conduct or participate, directly or indirectly, in

7 the conduct of such enterprise’s affairs ... through a pattern of racketeering activity."

8

56. Plaintiffs and members of the Class have been damaged by reason of

9 defendants’ RICO violations because they have been employed by Matson and Zirkle

10 at wages which were depressed as a direct result of the Illegal Immigrant Hiring

11 Scheme. Plaintiffs and members of the Class were the intended and direct victims of

12 defendants’ RICO scheme and their injury, working at depressed wages, was both

13 intended and foreseeable. As a direct result of this scheme defendants were able to

14 profit.

15

COUNT II

16

CIVIL CONSPIRACY

17

57. Plaintiffs reallege and incorporate herein the foregoing allegations of this

18 Complaint.

19

58. This claim is asserted against all defendants.

20

59. Matson and Zirkle have entered into a conspiracy with Selective (the

21 joint venture agreements) to violate the Immigration and Nationality Act.

22

60. These conspiracies are a substantial factor in the depression of the wages

23 of plaintiffs and the Class.

24

61. Defendants’ conspiracies to violate the Immigration and Nationality Act

25 also violate Washington common law.

26

COMPLAINT
1348 l0 0010 BSC DOC

- 13 -

62. As a direct, foreseeable, intended and proximate cause of these

conspiracies, plaintiffs and the class will continue to suffer substantial injuries and

damages.

VI. PRAYER FOR RELIEF

5

63. Plaintiffs demand judgment and other relief, as follows:

6

64. Certification of the Class pursuant to Fed. R. Civ. P. 23(b)(3);

7

65. Judgment in an amount equal to three times the damage caused to the

8 putative class by the defendants’ racketeering activity/the Illegal Immigrant Hiring

9 Scheme, pursuant to Count I and 18 U.S.C. § 1964(c);

10

66. For preliminary and permanent injunctions enjoining Matson and Zirkle

11 fi’om any further racketeering activity or any further association with Selective

12 Employment Agency, pursuant to 18 U.S.C. § 1964;

13

67. Judgment in an amount equal to the damage caused to the putative class

14 by the conspiracy to violate the Immigration and Nationality Act/the Illegal 15 Immigrant Hiring Scheme, pursuant to Count II;

16

68. For appropriate attorney’s fees, pursuant to 18 U.S.C. § 1964;

17 ///

18 ///

19 ///

20

21

22

23

24

25

26

COMPLAINT
1348 10 0010 ~SC.DOC

- 14-

1

69. For the costs of this action;

2

70. For any other relief the Court deems just and proper.

3

DATED: March 27, 2000.

4

HAGENS BERMAN LLP

5

6

BY’ b~erman, W’:5tSA #12536

7

Andrew M. Volk, WSBA #27639

1301 Fifth Avenue, Suite 2900

8

Seattle, WA 98101

(206) 623-7292 9

Howard W. Foster

10

JOHNSON & BELL, LTD.

222 N. LaSalle Street, Suite 2200

11

Chicago, IL 60601

(312) 372-0770

12

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

COMPLAINT
1348 10 0010 EISC DO,C

-15-

 </s> ~TO~’ & MKI.ER O3URT REPORTER5 601 W. RIVERSIDE
SUITE 1030 SPOKANE, WA

1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900
3 Seattle, WA 98101 (206) 623-7292

4 Howard W. Foster

5 JOHNSON & BELL, LTD.

222 N. LaSalle Street, Suite 2200

6

Chicago, IL 60601 (312)372-0770

7 Attorneys for Plaintiff

8

ORIGINA[L
FILED 1N THE U.S. DISTRICT COURT
~STERN DISTRICT OF WASHINGTON
HAR 2 8 2000
JAMES ~N, CLERK
._OEPUTY --- ’ SPOKAI~E, ~A~HINL~TON

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12

OMLEINVDIIAOLMAE,NinDdiOviZduAalalynd~ J~UnV~/e~l~.,fU 0~. " 8 0 2 4 == ~ of all others similarly situate~ J,

13

Plaintiffs,

14

15 ZIRKLE FRUIT CO.,a Washington

16

corporation, MATSON FRUIT COMPANY, a Washington corporation,

17

and SELECTIVE EMPLOYMENT AGENCY, INC., a Washington

18 corporation,

CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM

19

Defendants.

20

21
I. NATURE OF ACTION
22
1. This is a class action brought on behalf of all persons legally authorized
23
to be employed in the United States ("U.S.") who have been hired by defendants
24
Zirkle Fruit Co. (Zirkle), and Matson Fruit Company (Matson) as hourly wage earners
25

26

COMPLAINT
1341L I C’ O010 BSC.DOC

-1-

1 and who were recruited or referred to Zirlde and Matson by Selective Employment

2 Agency.

3

2. Defendants Matson and Zirkle, corporations engaged in the business of

4 growing, warehousing, packing and selling apples and other types of produce, have

5 embarked on a scheme to employ workforces substantially comprised of

6 undocumented immigrants who have no legal right to be employed in the U.S.

7 (hereinafter the "Illegal Immigrant Hiring Scheme"). Defendants’ scheme violates the 8 Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et

9 seq., and Washington state law.

10

3. Matson and Zirkle are conducting the Illegal Immigram Hiring Scheme

11 for the purpose of depressing employee wages below the Ievels they would otherwise

12 be required to pay if they were unable to hire substantial numbers of illegal

13 immigrants who, due to their economic situation and fear of asserting their rig~hts due

14 to their illegal status, can be easily exploited and who are therefore willing to work for

15 depressed wages.

16

4. The Illegal Immigrant Hiring Scheme is perpetrated b:/ defendants

17 Matson and Zirlde through their participation in association-ln-fact enterprises,

18 comprised of each defendant and Selective Employment Agency (herea~er

19 "Selective"), a corporation organized under the laws of the State of Washington and

20 conducting business, employee recruiting and placement in Washin~on. Defendants

21 Matson and Zirkte use Selective as a "front company" for the purpose of perpetrating

22 this scheme and with the hope that each will be thus shielded from charges that they

23 violated federal law.

24

5. The Illegal Immigrant t-Iiring Scheme has resu/ted in the depression or

25 lowering of wages paid to hundreds, perhaps thousands, of persons who are legally

26 authorized to work in the U.S.

COMPLAINT

2

1

6. Defendants’ scheme involving the knowing employment of illegal

2 immigrants in violation of § 274 of the Immigration and Nationality Act is ongoing,

3 threatening to continue, victimizing more persons every day, unless and until halted

4 by judicial intervention.

5

II. PARTIES, JURISDICTION AND VENUE

6

7. Plaintiffs Olivia Mendoza and Juana Mendiola are, and at all relevant

7 times have been, residents of the State of Washington and of this District and are all

8 lawfully entitled to be employed in the U.S. Each of the plaintiffs was employed by

9 defendant Zirkle as laborers.

10

8. Zirkle Fruit Company is a corporation organized under the taws of the

11 State of Washington with its principal place of businesses located in Selah, 12 Washington. Additionally, as detailed below, it has committed a pattern of

13 racketeering activity in this District and it operates its business in this District.

14

9. Matson Fruit Company is a corporation organized under the laws of the

15 State of Washington with its principal place of business located in Selah,

16 Washington. Additionally, as detailed below, it has committed a pattern of

17 racketeering activity in this District and it operates its business in this District.

18

10. Defendant Selective Employment Agency is a corporation organized

19 under the laws of the State of Washington with its principal place of business located

20 in Yakima, Washington. Defendant Selective has an existence and structure separate

21 and apart from the RICO enterprise described herein, including but not limited to its

22 incorporation under the laws of Washington.

23

11. This Court has subject matter jurisdiction over Count I under the federal

24 question doctrine pursuant to 28 U.S.C. § 1331 and 18 U.S.C. §§ 1964(a). This Court

25 may exercise supplemental jurisdiction over Count II pursuant to 28 U.S.C.

26 § 1367(a).

COMPLAINT
134810 0010 BSC.DOC

- 3-

1

12. Venue is proper in this District because the illegal act~ giving rise to finis

2 ca.se occurred in this District and all of the parties reside and are domiciled here.

3

Ill. CLASS ALLEGATIONS

4

13. This action is brought and may be maintained as a class action pursuant to

5 Fed. 1L Civ. P. 23Co)(2) and (b)(3). Plaintiffs bring this action on behalf of themselves

6 and all other persons, legally authorized to be employed in the U.S., who have been

7 hired and/or employed by Matson and Zirkle as a result of recruitment or referral by

$ Selective (the "Class").

9

14. The Class for whose benefit this action is brought is so numerous that

10 joinder of all Class members is impracticable. The actual number can only be

11 ascertained through discovery of defendants’ books and records.

12

15. Among the questions of fact and law that are common to the Class are:

13

a. Whether Matson and Zirkle have and are currently engaged in a

14 scheme to employ illegal immigrant workers in order to depress the hourly wages they

15 must pay to workers;

16

b. Whether the Illegal Immigrant Hiring Scheme has caused Class

17 members’ wages to be depressed;

18

c. Whether Matson and Zirkle are conducting the Illegal Immigrant

19 Hiring Scheme with the knowing assistance of Selective;

20:

d. Whether the Illegal Immigrant Hiring Scheme has proximately

21 caused damage to plaintiffs and Class members by depressing theix wages;

22’

e. Whether the Illegal Immigrant Hiring Scheme violates the

23 Immigration and Nationality Act and RICO;

24

f. Whether Matson and Zirlde should be enjoined from fu_~er

25 racketeering activity; and

26

COMPLAINT

- 4 -

1

g. Whether Matson and Zirkle have engaged in a civil conspiracy

2 with Selective.

3

16. Plaintiffs’ claims are typical of those of the members of the Class

4 inasmuch as they are caused by the Illegal Immigrant Hiring Scheme. Plaintiffs seek

5 no relief that is antagonistic or adverse to other Class members.

6

17. Plaintiffs are committed to the vigorous prosecution of this action and

7 have retained counsel who are competent in the prosecution of class actions, RICO

8 and complex litigation. Accordingly, plaintiffs will fairly and adequately protect and

9 represent the interests of the Class.

10

18. Questions of law or fact that are common to the members of the Class are

11 substantially similar and predominate over any questions affecting only individual

12 Class members, and a class action is the only appropriate method for the fair and

13 efficient adjudication of this controversy for the following reasons, among others:

14

a. The individual amounts of damages involved, while not

15 insubstantial, are generally not large enough to justify individual actions;

16

b. The costs of individual actions would unreasonably consume the

17 amounts that would be recovered;

18

c. Individual actions would unduly burden the judicial system; and

19

d. Individual actions brought by Class members would create a risk

20 of inconsistent results and would be unnecessarily duplicative of this litigation.

21

19. Plaintiffs anticipate no difficulty in the management of this action

22 because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable

23 through discovery, the identities of the members of the Class are known to Matson

24 and Zirkle and damages can be calculated through expert testimony.

25

26

COMPLAINT
1348 I0 00110 BSC.DOC

- 5 -

1

IV. STATEMENT OF OPERATIVE FACTS

2 A. The Illegal Immigrant Hiring Scheme

3

20. Eastern Washington is the heart ofWashington’s farned apple and fi~uit

4 industry. This area, which is uniquely situated for growing fruit due to a combination

5 of abundant sunshine and cheap irrigation, has over the years generated hur~dreds of

6 millions of dollars in annual revenues and has produced fruit recognized for its quality

7 throughout the United States and m~Lny foreign countries.

21. In Washington state there are more than 15,000 fruit packers and 30,000

9 orchard pickers of fruit. Many operations require u~skilled, low-wage laborers for

10 harvesting and packing and other related tasks requiring manual labor. While the

11 industry now generates over $1 billion, many of~ese workers live in poverty.

12

22. Defendants Matson and Zirkle operate fruit orchards ~nd packing houses.

13 Matson and Zirkle are motivated to and do keep labor costs as low as possible and,

14 due to a variety of complex social and economic factors, the i~duslry’s demand for

15 low-skilled workers has attracted many workers of Mexican citizenship. Many of

16 these Mexican nationals are illegal immigrants who have been sm~tggled into the U.S.

17 and/or are harbored in the U.S. by relatives, friends and employers. Matson and

18 Zirkle, with the essential role pIayed by Selective (as detailed below), knowingly hire

19 workers of illegal status because the illegal workers are willing to accept wages that

20 are significantly lower than wages would be in a labor market comprised solely of

21 legally authorized workers. Thus, Matsor~ and Zirkle have willfully engaged in the

22 Illegal Immigrant Hiring Scheme by continually and knowingly hiring illegal 23 immi~ants.

24

23. This practice ha~ been so flagrant that defendant~ and other~ in the

25 industry have been targeted for raids and other law enforcement procedures by the

26 U.S. Department of Justice, Immigration and Naturalization Service ("the INS"). One

COMPLAINT
1345.10 o01o

1 such procedure was "Operation Snowbird," a crackdown on illegal immigrant hiring 2 by apple growers, including defendant Matson, culminating in orders issued by the

3 INS in early 1999 to terminate many illegal immigrant workers. Prior to this

4 crackdown, Zirkle had been the subject of a previous investigation by the INS.

5

24. As a result of or during the course of Operation Snowbird, the INS

6 completed audits of the I-9 forms and other personnel records maintained by Matson.

7 The INS concluded that Matson had employed hundreds of illegal immigrants in

8 knowing or reckless disregard of their illegal status during the previous several years,

9 and that the practice was ongoing.

10

25. Plaintiffs are not aware of the precise number of illegal immigrants who

11 are or have been employed by Matson and Zirkle, because such information is in their

12 possession, but up on information and belief, plaintiffs allege, that the number 13 employed by each was in excess of 50, and as much as fifteen times that number.

14

26. The use of illegal aliens represents a pattern of unlawful conduct that has

15 occurred over a number of years and which is continuing.

16

27. For example, the INS determined that in 1998 defendant Matson had 661

17 employees working in its orchard and warehouse, and that 493 of them (74%) had

18 been hired with false/fraudulent documents supposedly establishing their right to be

19 employed. Thus, they were illegal immigrants and were hired by Matson as part of

20 the Illegal Immigrant Hiring Scheme.

21

28. Plaintiffs believe, and thereon allege, that many of these 493 illegal

22 immigrants were hired by Matson in violation of § 274(a)(3) the Immigration and 23 Nationality Act, which provides that:

24

Any person who, during.any 1.2~-mo,n.thper, iod, ~,lsnow~in~ly

hires for eml~loy~_ ent at least 10 inaivic~ua~s wim actua~

25

knowledge that the individuals are aliens.., shall be fined

under Title 18, or imprisoned for not more than 5 years, or

26

both.

COMPLAINT
1348 10 0010 BSC DOC

- 7 -

1 8 U.S.C. § 1324(a)(1)(B)(3)(A).

2

29. Specifically, Matson hired certain of the 493 employees with actual

3 knowledge that each person was an illegal immigrant (alien) who was not eligible to

4 be employed in the U.S., and Matson also knew that each person was either smuggled

5 into the U.S. and/or harbored once he or she was in the U.S. Further, Matson hired at

6 least 50 of these 493 people in 1998, and at least 50 in 1997 and 1996. Further,

7 plaintiffs believe, and thereon allege, that Matson has continued the Illegal Immigrant

8 Scheme in 1999 (by hiring at least 50 more), and through the present. Plaintiffs are

9 informed and believe, and thereon allege, that during the last three years Matson

t0 maintained a work force comprised of approximately 50% illegal immigrants. The

11 INS has made similar findings of violations of the Act committed by Zirkle.

12

30. It is also well known in the industry by growers and packers which of

13 those persons in the workforce are illegal aliens. There is a conspiracy of silence, but

14 the fact is that Matson and Zirkle have been raided by the INS. When the INS arrives

15 to inspect, workers often disappear, putting Matson and Zirkle on notice of their

16 illegal workforce. Matson is alleged to maintain two sets of employment documents:

17 one set for the INS that carefully excludes known illegal workers, and another set that

18 includes them.

19

31. In many instances, Matson and Zirkle have rehired certain illegal

20 immigrants, even after being informed by the INS that they are ineligible for

21 employment, under different names and with different social security numbers, which

22 defendants know are fraudulent.

23

32. Plaintiffs allege that defendant Zirkle has employed at least 50 illegal

24 immigrants, with actual knowledge that each one was illegal and ineligible for

25 employment, and with knowledge that each one was either smuggled into the U.S. or

26 harbored once in the U.S.

COMPLAINT
1348 I0 0010 BSC.DOC

- 8 -

1 B. The I-9 Mail Fraud Scheme

2

33. Matson and Zirkle have engaged in another scheme in violation of RICO

3 - "The I-9 Mail Fraud Scheme" - simultaneously with the Illegal Immigrant Hiring

4 Scheme, in order to effectuate the Illegal Immigrant Hiring Scheme.

5

34. The I-9 Mail Fraud Scheme works as follows: Whenever Matson and

6 Zirkle employ an illegal immigrant, they complete (or, in the alternative, they direct

7 Selective to complete, and Selective agrees to so complete, and to cause to be

8 deposited in the U.S. mail), an I-9 form (otherwise known as an "Employment

9 Eligibility Verification Form") that is sent to the INS. Matson did this and/or directed

10 Selective to do so for each of the above-referenced 493 illegal immigrants.

11

35. The I-9 form requires the employer to certify, under penalty of perjury,

12 the following: "I have examined the document(s) presented by the above-named

13 employee, that the above-listed document(s) appear to be genuine and to relate to the

14 employee named ... and that to the best of my knowledge the employee is eligible to

15 work in the U.S." Matson and/or Selective signed many of the 493 I-9 forms with

16 actual knowledge that the person being employed was ineligible for employment, thus

17 violating the "preparer certification."

18

36. Matson and Selective hoped that the INS would accept the data

19 represented on each I-9 form, would not investigate the false/non-existent Social

20 Security numbers and/or other indices of work eligibility, and take no action against

21 them or the illegal immigrants for their violations of the Immigration and Nationality

22 Act. Thus, the Illegal Immigrant Hiring Scheme would be effectuated.

23

37. Each and every mailing of an I-9 form to the INS for the purpose of

24 facilitating the hiring of an illegal immigrant violates the mail fraud statute, 18 U.S.C.

25 § 1341.

26

COMPLAINT
1348 l0 0010 ~.SC DOC

- 9 -

1

38. Matson has perpetrated, and is continuing to perpetrate, a long-term mail

2 fraud scheme against the INS simultaneously with the Illegal Immigrant Hiring

3 Scheme that is perpetrated against the Class. Discovery will enable plaintiffs to

4 obtain the dates of the mailings of the false I-9 forms and the names of the Matson

5 agents/officers who caused them to be mailed. Plaintiffs do not, and cannot, have

6 access to these facts without discovery.

7

39. Defendant Zirkle is similarly engaged in the I-9 Mail Fraud Scheme for

8 the same purpose and in the same manner as described above. It has perpetrated this

9 scheme in the same relationship with Selective, as described below.

10 C. The Enterprises

11

40. Matson and Zirkle have each entered into contractual agreements with

12 Selective, a separate legal entity under separate ownership. Such agreements provide

13 for close cooperation between and among the two businesses for the employment of

14 hourly wage workers, a joint venture. The agreements establish a complex legal

15 relationship between Matson/Zirkle and Selective by which Matson/Zirkle have

16 directed Selective to employ workers and then "loan" them to Matson/Zirkle, who

17 determine when to terminate the employment of each worker, and so direct Selective,

18 which follows these directives. Accordingly, while the workers take direction from

19 Matson/Zirkle’s foremen and managers, they are paid by Selective. Selective has also

20 assumed the responsibility for withholding taxes from the workers’ wages and

21 remitting this money to the U.S. Government. In exchange for these responsibilities,

22 Matson/Zirkle reimburse Selective for the workers’ wages and pay fees to Selective

23 for its role in the joint venture.

24

41. Matson and Zirkle have entered into these joint ventures for the primary

25 purpose of shifting certain aspects of the Illegal Immigrant Hiring Scheme from

26 themselves to an outside firm. They believe that this arrangement will conceal the

COMPLAINT
12.48. I 0 0010 BSC.DOC

o 10 -

1 Illegal Immigrant Hiring Scheme, making detection by the INS more difficult, and, if

2 detected, enable defendants to shift blame onto Selective.

3

42. In actuality, defendants Matson/Zirkle conduct the scheme by directing

4 Selective to carry out certain aspects of it. Matson and Zirkle have reversed

5 Selective’s usual manner of conducting business, which is to reject candidates for

6 employment when they offer suspect forms of work authorization documents. After

7 Matson and Zirkle have gained considerable influence with Selective, and induced it

8 to execute the Illegal Immigrant Hiring Scheme through the joint venture agreements,

9 it welcomes (and, in fact, accepts) individuals who are illegal immigrants and

10 ineligible for employment. Selective has been thoroughly corrupted into acting as a

11 tool of Matson and Zirkle to enable them to commit more immigration crimes, and to

12 do so more surreptitiously than they could otherwise commit.

13

43. Plaintiffs believe, and thereon allege, that, in carrying out the joint

14 venture with Selective, Matson and Zirkle have regular meetings with Selective

15 officers and managers to allocate proceeds from the Illegal Immigrant Hiring Scheme,

16 direct Selective as to the numbers of illegal immigrants needed and, as the needs

17 change from week to week, reject certain candidates for hiring who are known to be

18 legal aliens or U.S. citizens and keep abreast of all INS law enforcement activity in

19 the area in order to elude detection.

20

44. Accordingly, Matson and Zirkle and Selective have regularized their

21 relationships through months and months of ongoing cooperation and heavy-handed

22 intervention by Matson and Zirkle in Selective’s conduct.

23

45. Thus, Matson Selective and Zirkle Selective each constitute association-

24 in-fact enterprises, affecting interstate commerce, under 18 U.S.C. § 1961(4).

25

26

COMPLAINT
1~48 10 OOlO BSC DO(’

- 11 -

1 D. The Plaintiffs Are Victims of the Illegal Immigrant Hiring Scheme

2

46. Plaintiffs, all of whom are legally authorized to be employed, have all

3 been employed by Zirkle Fruit Co. During 1999 at wages that are substantially

4 depressed because of the Illegal Immigrant Hiring Scheme.

5

47. Plaintiffs’ wages are below the wage rate at which a labor market

6 comprised of workers legally entitled to work - namely, one without the operation of

7 the Illegal Immigrant Hiring Scheme, would be set.

8

V. THE RICO VIOLATIONS

9

48. Section 1961(1)(F) of RICO provides in relevant part that racketeering

10 activity includes "any act which is indictable under the Immigration and Nationality

11 Act, § 274... 277... or 278... if the act.., was committed for the purpose of financial

12 gain." Section 274 of the Immigration and Nationality Act, as detailed above,

13 codified at 8 U.S.C. § 1324(a)(3)(A), makes illegal the knowing employment of 10 or

14 more individuals during any 12-month period.

15

49. Section 1961(1)(B) of RICO further provides that mail fraud, 18 U.S.C.

16 § 1341, constitutes racketeering activity.

17

50. As set forth above, defendants Matson and Zirkle have each committed

18 the predicate RICO violations over a sustained period.

19

COUNT I

20

FOR VIOLATIONS OF RICO

(18 U.S.C. § 1962(c))

21

51. Plaintiffs incorporate the preceding allegations as if fully set forth above.
22

52. This claim is asserted against Matson and Zirkle. Both are "persons," as
23

defined in 18 U.S.C. § 1961(3).
24

25

53. As stated above, Zirkle Selective and Matson Selective each constitute

an association-in-fact enterprise under 18 U.S.C. § 1961 (4).
26

COMPLAINT
13Z.8 10 9010 BSC.DOC

- 12 -

1

54. Defendants’ violations of the Immigration and Nationality Act and the

2 federal mail fraud statute, as detailed in this Complaint, constitute a "pattern of

3 racketeering activity" under 18 U.S.C. § 1961(5).

4

55. Matson and Zirkle have been and are presently violating 18 U.S.C.

5 § 1962(c) of RICO, which provides that it "shall be unlawful for any person ...

6 associated with any enterprise ... to conduct or participate, directly or indirectly, in

7 the conduct of such enterprise’s affairs ... through a pattern of racketeering activity."

8

56. Plaintiffs and members of the Class have been damaged by reason of

9 defendants’ RICO violations because they have been employed by Matson and Zirkle

10 at wages which were depressed as a direct result of the Illegal Immigrant Hiring

11 Scheme. Plaintiffs and members of the Class were the intended and direct victims of

12 defendants’ RICO scheme and their injury, working at depressed wages, was both

13 intended and foreseeable. As a direct result of this scheme defendants were able to

14 profit.

15

COUNT II

16

CIVIL CONSPIRACY

17

57. Plaintiffs reallege and incorporate herein the foregoing allegations of this

18 Complaint.

19

58. This claim is asserted against all defendants.

20

59. Matson and Zirkle have entered into a conspiracy with Selective (the

21 joint venture agreements) to violate the Immigration and Nationality Act.

22

60. These conspiracies are a substantial factor in the depression of the wages

23 of plaintiffs and the Class.

24

61. Defendants’ conspiracies to violate the Immigration and Nationality Act

25 also violate Washington common law.

26

COMPLAINT
1348 l0 0010 BSC DOC

- 13 -

62. As a direct, foreseeable, intended and proximate cause of these

conspiracies, plaintiffs and the class will continue to suffer substantial injuries and

damages.

VI. PRAYER FOR RELIEF

5

63. Plaintiffs demand judgment and other relief, as follows:

6

64. Certification of the Class pursuant to Fed. R. Civ. P. 23(b)(3);

7

65. Judgment in an amount equal to three times the damage caused to the

8 putative class by the defendants’ racketeering activity/the Illegal Immigrant Hiring

9 Scheme, pursuant to Count I and 18 U.S.C. § 1964(c);

10

66. For preliminary and permanent injunctions enjoining Matson and Zirkle

11 fi’om any further racketeering activity or any further association with Selective

12 Employment Agency, pursuant to 18 U.S.C. § 1964;

13

67. Judgment in an amount equal to the damage caused to the putative class

14 by the conspiracy to violate the Immigration and Nationality Act/the Illegal 15 Immigrant Hiring Scheme, pursuant to Count II;

16

68. For appropriate attorney’s fees, pursuant to 18 U.S.C. § 1964;

17 ///

18 ///

19 ///

20

21

22

23

24

25

26

COMPLAINT
1348 10 0010 ~SC.DOC

- 14-

1

69. For the costs of this action;

2

70. For any other relief the Court deems just and proper.

3

DATED: March 27, 2000.

4

HAGENS BERMAN LLP

5

6

BY’ b~erman, W’:5tSA #12536

7

Andrew M. Volk, WSBA #27639

1301 Fifth Avenue, Suite 2900

8

Seattle, WA 98101

(206) 623-7292 9

Howard W. Foster

10

JOHNSON & BELL, LTD.

222 N. LaSalle Street, Suite 2200

11

Chicago, IL 60601

(312) 372-0770

12

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

COMPLAINT
1348 10 0010 EISC DO,C

-15-

 </s> 1

Ryan M. Edgley

402 E. Yakima Avenue, Suite 1080

2

Yakima, WA 98901

Telephone (509) 248-1740

3

Attorneys for Defendants

4

JAk~.$ P’’ LAP, SE~, CLERK Honorable Fred VanSickle

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF WASHINGTON

7

OLIVIA MENDOZA and JUANA

8

MENDIOLA, individually and on

behalf of all other similarly situated, 9

Plaintiffs, 10

VS.
11

Z1RKLE FRUIT CO., a Washington

12

corporation, MATSON FRUIT

COMPANY, a Washington corporation

13

and SELECTIVE EMPLOYMENT

AGENCY, INC., a Washington

14

corporation,

NO. CY-00-3024-FVS
ANSWER OF DEFENDANT MATSON FRUIT COMPANY

15

Defendants.

16
Defendant Matson Fruit Co. submits this Answer to the plaintiffs’
17

18

Class Action Complaint, and responds to the allegations therein as follows:

19

1, Denies this action may be appropriately pursued on behalf of the

20

putative class described in Paragraph No. 1 of the Complaint.

21

2. Admits Matson and Zirkle are corporations engaged in the

22
business of growing, warehousing, packing and selling apples
23

ANSWER OF DEFENDANT - 1 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "’D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

and other types of produce. Matson Fruit Co. denies every other

2

allegation included in Paragraph No. 2 of the Complaint.

3
o Denies every allegation included in Paragraph No. 3 of the
4
Complaint.
5

6

Admits Selective Employment Agency is a Washington

7

corporation conducting business, employee recruiting and

8

placement in the state of Washington. Matson Fruit Co. denies

9

every other allegation included in Paragraph No. 4 of the

10
Complaint.
11
Denies every allegation included in Paragraph No. 5 of the
12

13

Complaint.

14

Denies every allegation included in Paragraph No. 6 of the

15

Complaint.

16

o Matson Fruit Co. has insufficient information to form a belief as

17
to the truth of the allegations contained in Paragraph No. 7 of the
18
Complaint and, therefore, denies said allegations.
19

20

Admits that Zirkle Fruit Co. is a Washington corporation, with

21

its principal place of business located in Selah, WA. Matson

22

Fruit Co. denies every other allegation included in Paragraph No.

23

8 of the Complaint.

ANSWER OF DEFENDANT - 2 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "I)" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

Admits that Matson Fruit Co. is a Washington corporation, with

2

its principal place of business located in Selah, WA. Matson

3 Fruit Co. denies every other allegation included in Paragraph No.
4
9 of the Complaint. 5

6

10. Admits that Selective Employment Agency is a Washington

7

corporation, with its principal place of business located in

8

Yakima, WA. Matson Fruit Co. denies every other allegation

9 included in Paragraph No. 10 of the Complaint.
10 ll. Admits this court has subject matter jurisdiction over Count I of
11
the Complaint alleging violation of the Racketeer Influenced and 12

13

Corrupt Organizations Act. Matson Fruit Co. denies that it

14

would be appropriate for the court to exercise supplemental

15

jurisdiction over Count II of the Complaint alleging violation of

16 state common law.
17 12. Denies the occurrence of "illegal acts" alleged in Paragraph No.
18 12 of the Complaint. Matson Fruit Co. has insufficient
19

20

information to form a belief as to the truth of the allegation that

21

the plaintiffs are or were resident or domiciled within the

22

geographic boundaries of the Eastern District of Washington

23 and, therefore, denies said allegation. Matson Fruit Co. admits it

ANSWER OF DEFENDANT - 3 MATSON FRUIT COMPANY

EDGLEY & BEATI’IE, P.S. 201 East "D" Street Yakima, WA 9890~
Phone: (509) 248-1740
Fax: (509) 248-1573

1

and Zirkle Fruit Co. are located in the Eastern District of

2

Washington, and that venue is properly within this District.

3
13. Denies this action may be appropriately pursued as a class
4
action, or on behalf of the putative class described in Paragraph
5
No. 13 of the Complaint, pursuant to Fed. R. Civ. P. 23(b)(2) or
6

7

(b)(3).

8

14. Denies every allegation included in Paragraph No. 14 of the

9

Complaint.

10
15. Denies every allegation included in Paragraph Nos. 15(a)
11
through 15(g) of the Complaint.
12

13

16. Denies every allegation included in Paragraph No. 16 of the

14

Complaint.

15

17. Matson Fruit Co. has insufficient information to form a belief as

16

to the truth of the allegations included in Paragraph No. 17 of the

17
Complaint and, therefore, denies said allegations.
18
18. Denies every allegation included in Paragraph No 18, and in
19

20

Paragraph Nos. 18(a) through 18(d) of the Complaint.

21

19. Denies every allegation included in Paragraph No. 19 of the

22

Complaint.

23

ANSWER OF DEFENDANT - 4 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

20. Admits the allegations included in Paragraph No. 20 of the

Complaint.

21. Matson Fruit Co. has insufficient information to form a belief as

to the truth of the allegation that "many of these workers live in

poverty" and, therefore, denies said allegation. Matson Fruit Co.

admits the remainder of the allegations included in Paragraph

No. 21 of the Complaint.

22. Admits Matson Fruit Co. and Zirkle Fruit Co. operate fruit

10 orchards and packing houses, and that they are motivated to
11 avoid excessive labor costs. Matson Fruit Co. further admits the
12

13

work in the fruit industry has attracted many workers of Mexican

14

citizenship. Matson Fruit Co. denies that it keeps labor costs "as

15

low as possible." Matson Fruit Co. has insufficient information

16

to form a belief as to the truth of the allegations that "many" of

17 the "Mexican nationals are illegal immigrants who have been
18
smuggled into the U.S. and/or are harbored in the U.S. by 19

20

relatives, friends and employers" and, therefore, denies said

21

allegations. Matson Fruit Co. denies every other allegation

22

stated in Paragraph No. 22 of the Complaint.

23

ANSWER OF DEFENDANT - 5 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East ’*D" Street
Yakima, WA 989431 Phone: (509) 248-1740
Fax: (509) 248-1573

23. Admits Matson Fruit Co. had the I-9 Forms maintained for all

employees audited by the INS as part of "Operation Snowbird,"

3
and that Matson Fruit Co. was instructed by the INS to terminate
4
workers who the INS determined (sometimes erroneously) to be
5

6

aliens unauthorized to work in the United States. Matson Fruit

7

Co. denies every other allegation included in Paragraph No. 23

8

of the Complaint.

9

24. Admits the INS completed audits of the 1-9 Forms and other

10
personnel records maintained by Matson Fruit Co. Matson Fruit
11
Co. denies every other allegation included in Paragraph No. 24
12

13

of the Complaint.

14

25. Denies every allegation included in Paragraph No. 25 of the

15

Complaint.

16

26. Denies every allegation included in Paragraph No. 26 of the

17
Complaint.
18
27. Admits the INS examined, in 1998, I-9 Forms maintained by
19

20

Matson Fruit Co. for 123 current employees, and determined that

21

62 employees (50%) had used fraudulent documents purportedly

22

establishing their authorization to work. Matson Fruit Co.

23

admits the INS examined, in 1998, a total of 661 1-9 Forms

ANSWER OF DEFENDANT - 6 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 E~st "D" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

maintained for current and former employees, and determined

2

that 493 employees (74%) had used fraudulent documents

3
purportedly establishing their authorization to work. Matson
4
Fruit Co. denies every other allegation included in Paragraph No.
5

6

27 of the Complaint.

7

28. Denies every allegation included in Paragraph No. 28 of the

8

Complaint.

9

29. Denies every allegation included in Paragraph No. 29 of the

10
Complaint.
11
30. Denies every allegation included in Paragraph No. 30 of the
12

13

Complaint.

14

31. Denies every allegation included in Paragraph No. 31 of the

15

Complaint.

16

32. Matson Fruit Co. has insufficient information to form a belief as

17
to the truth of the allegations stated in Paragraph No. 32 of the
18
Complaint and, therefore, denies said allegations.
19

20

33. Denies every allegation included in Paragraph No. 33 of the

21

Complaint.

22

34. Denies every allegation included in Paragraph No. 34 of the

23

Complaint.

ANSWER OF DEFENDANT - 7 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

35. Admits the first sentence included in Paragraph No. 35 of the

Complaint, setting forth the language of the employer’s

certification on the I-9 Form. Matson Fruit Co. denies every

other allegation included in Paragraph No. 35 of the Complaint.
5

6

36. Denies every allegation included in Paragraph No. 36 of the

7

Complaint.

8

37. Denies every allegation included in Paragraph No. 37 of the

9

Complaint.

10
38. Denies every allegation included in Paragraph No. 38 of the
1t
Complaint.
12

13

39. Denies every allegation included in Paragraph No. 39 of the

14

Complaint.

15

40. Denies the allegation of "close cooperation," and denies the

16

allegation of a "joint venture" existing between Matson Fruit Co.

17
and Selective Employment Agency. Matson Fruit Co. admits the
18
remaining allegations included in Paragraph No. 40 of the
19

20

Complaint.

2t

41. Denies every allegation included in Paragraph No. 41 of the

22

Complaint.

23

ANSWER OF DEFENDANT - 8 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.$. 201 East "D’" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

42. On information and belief, Matson Fruit Co. admits Selective’s

2

usual manner of conducting business is to reject candidates for

3
employment if they offer suspect forms of work authorization

4
documents. Matson Fruit Co. denies every other allegation
5

6

included in Paragraph No. 42 of the Complaint.

7

43. Denies every allegation included in Paragraph No. 43 of the

8

Complaint.

9

44. Denies every allegation included in Paragraph No. 44 of the

10
Complaint.
11
45. Denies every allegation included in Paragraph No. 45 of the
12

13

Complaint.

14

46. Denies every allegation included in Paragraph No. 46 of the

15

Complaint.

16

47. Denies every allegation included in Paragraph No. 47 of the

17
Complaint.
18
48. Denies that Paragraph No. 48 of the Complaint fully or
19

20

accurately states the applicable law.

21

49. Declines to answer Paragraph No. 49 of the Complaint, which

22

includes no allegation of any facts.

23

ANSWER OF DEFENDANT - 9 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S.
201 East "D" Street Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

50. Denies every allegation included in Paragraph No. 50 of the

2

Complaint.

3
51. In answer to Paragraph No. 51 of the Complaint, Matson Fruit

4
Co. incorporates its preceding responses as if fully set forth.
5

6

52. Admits Matson Fruit Co. is a "person" as defined by 18 U.S.C.

7

§ 1961 (3). Matson Fruit Co. denies every other allegation

8

included in Paragraph No. 52 of the Complaint.

9

53. Denies every allegation included in Paragraph No. 53 of the

10
Complaint.
11
54. Denies every allegation included in Paragraph No. 54 of the
12
Complaint.
13

14

55. Denies every allegation included in Paragraph No. 55 of the

15

Complaint.

16

56. Denies every allegation included in Paragraph No. 56 of the

17
Complaint.
18
57. In answer to Paragraph No. 57 of the Complaint, Matson Fruit
19

2O

Co. restates and incorporates its foregoing responses to the

21

Complaint.

22

58. Paragraph 58 of the Complaint does not include any factual

23

allegation, to which Matson Fruit Co. could respond.

ANSWER OF DEFENDANT - 10 MATSON FRUIT COMPANY

EDGLEY & BEATfIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

59. Denies every allegation included in Paragraph No. 59 of the

2

Complaint.

3
60. Denies every allegation included in Paragraph No. 60 of the
4
Complaint.
5

6

61. Denies every allegation included in Paragraph No. 61 of the

7

Complaint.

8

62. Denies every aIlegation included in Paragraph No. 62 of the

9

Complaint.

10
FURTHER, AS AFFIRMATIVE DEFENSES, Matson Fruit Co.
11
contends the plaintiffs’ claims are barred by the applicable statutes of
12

13

limitation, estoppel, waiver, consent and payment; and that the

14

plaintiffs have failed to mitigate their damages. Finally, Matson Fruit

15

Co. contends Count II of the Complaint alleging civil conspiracy fails

16

to state a claim on which relief may be granted.

17
HAVING ANSWERED the plaintiffs’ Complaint, Matson Fruit
18
Co. requests the court dismiss the plaintiffs’ Complaint, with prejudice;
19

20

and asks that the court award Matson Fruit Co. its costs and reasonable

21

attorney fees incurred in this matter.

22

23

ANSWER OF DEFENDANT - 11 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D’" Street
Yakima, WA 98901 Phone: (509) 248-1740
Fax: (509) 248-1573

1

RESPECTFULLY SUBMITTED this 27th day of November,

2

2002.

3

4

5

6
Ryan M.~Edgley (WSBA #161~1) "~

7

Edgley & Beattie, P.S.

,3 \

8

Attorneys for Matson Fruit Co. ~

9

10

I1

12

13

14

15

t6

17

18

19

20

21

22

23

ANSWER OF DEFENDANT - 12 MATSON FRUIT COMPANY

EI)GLE¥ & BEATTIE, 201 East "D" Street
Yakima., WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

 </s> FILED IN THE U.S. DISTR~CT COURT EASTERN DIS’[RIOT OF WASHINGTON

1 Brendan V. Monahan
2 Velikanje, Moore & Shore, P.S. 3 405 East Lincoln Avenue 4 P.O. Box 22550 5 Yakima, Washington 98907 6 Telephone: 509-248-6030
7 Attorneys for Defendant Selective Employment
8

DEC - 3 2002
JAMES R. LARSEN, C_LDEREKPUTY yAKIMA~WASH[NBT~N

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on 14 behalf of all other similarly situated,

NO. CY-00-3024-FVS

15

16

Plaintiffs,

DEFENDANT SELECTIVE

17

EMPLOYMENT’S

18

ANSWER

19 ZIRKLE FRUIT CO., a Washington 20 corporation, MATSON FRUIT 21 COMPANY, a Washington corporation
22 and SELECTIVE EMPLOYMENT
23 AGENCY, INC., a Washington
24 corporation,

25

26

Defendants.

27

28

29

Comes now Defendant Selective Employment Agency, Inc. ("Selective") and

30 answers the Plaintiffs’ complaint as follows:
31

32

33 34

35

DEFENDANT SELECTIVE EMPLOYMENT’ S ANSWER- 1 308121b

Velikanje, Moore & Shore, P.$.
zttorne~t ~! law 405 East Lincoln Ave.
P,O. Box 22550 Yakima, WA 98907
(so~)

1

1. Selective disputes that the alleged class is appropriate from either a

2

3 factual or legal perspective, and accordingly denies the allegation set forth in

4
5 paragraph one (1) of the Plaintiffs’ complaint.

6

2. This allegation does not appear to pertain to Selective, and Selective

7

8 offers no response. To the extent Selective is alleged to have known of or
9

10 participated in the "scheme" alleged in paragraph two (2) of the Plaintiffs’ complaint,
11

12 such allegation is denied.

13

14

3. This allegation does not appear to pertain to Selective, and Selective

15
16 offers no response. To the extent Selective is alleged to have known of or

17
18 participated in the "scheme" alleged in paragraph three (3) of the Plaintiffs’

19 complaint, such allegation is denied.
20

21

4. Selective admits that it is a corporation organized under the laws of

22

23 Washington, that it conducts business in Washington, and that it performs services

24
25 related to employee placement and recruiting. All other allegations in paragraph four

26
27 (4) of the Plaintiffs’ complaint are denied.

28 29

5. Denied.

3O

6. Denied.

31

32

7. Selective admits that the named plaintiffs were employed by Zirkle as

33

34 laborers. Selective has insufficient knowledge or is otherwise unable to respond to
35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 2 308121b

Velikanje, Moore & Shore, P.$.
attorn~’)’~ ~,t law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1 the remaining allegations in paragraph seven (7) of the Plaintiffs’ complaint, and such
2
3 allegations are therefore denied.
4
8. This allegation does not appear to pertain to Selective, and Selective

6 offers no response.
7

8

9. This allegation does not appear to pertain to Selective, and Selective

9

10 offers no response.
11

12

10. Selective admits that is a corporation organized under the laws of the

13

14 State of Washington, and that it is a legal entity that is separate, apart, and wholly

15
16 unrelated to the other corporations that have been named as defendants in this action.

17
18 All other allegations and implications contained in paragraph 10 of the Plaintiffs’

19 complaint are denied.
20

21

11. Selective denies that supplemental jurisdiction is appropriate.

22

23

12. Selective denies all allegations and implications relating to "illegal acts",

24
25 but admits that venue for this litigation is properly situated in the Eastern District of

26
27 Washington.

28

29

13. Selective denies that this action may be appropriately pursued as a class

3O action.
31

32

14. Denied.

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 3 308121b

Velikanje, Moore & Shore, P.$.
attorn~y~ at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

15. Paragraph 15 of the Plaintiffs’ complaint, including sub-parts a-g, is

2

3 denied in its entirety.

4

5

16. Denied.

6

7

17. Selective has insufficient information to form a belief as to the truth or

8
falsity of the allegations contained in paragraph 17 of the Plaintiffs’ complaint, and
9

10 such allegations are accordingly denied.
11

12

18. Paragraph 18 of the Plaintiffs’ complaint, including sub-parts a-d, is

13

14 denied in its entirety.

15

16

19. Denied.

17

18

20. Admitted.

19
21. Selective has insufficient information to form a belief as to the truth or
20

21 falsity of the allegations contained in paragraph 21 of the Plaintiffs’ complaint, and
22

23 such allegations are accordingly denied.
24

25

22. Selective denies that it plays any role, much less an "essential role" in

26
27 the scheme alleged by Plaintiffs, and specifically denies that it has knowingly hired

28
29 workers of illegal status. As to the balance of the allegations set forth in paragraph

3O

22 of the Plaintiffs’ complaint, Selective has insufficient information to form a belief

31

32 as to the truth or falsity thereof, and such allegations are accordingly denied.
33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 4 308121b

Velikonje, Moore & Shore, P.S.
attorney’s at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

23. Selective has learned through media coverage that a project called

2
3 "Operation Snowbird" was undertaken by the INS. As to the balance of the

4
5 allegations set forth in paragraph 23 of the Plaintiffs’ complaint, Selective has

6 insufficient information to form a belief as to the truth or falsity thereof, and such
7

8 allegations are accordingly denied.
9

10

24. Selective has insufficient information to form a belief as to the truth or

11

12 falsity of the allegations contained in paragraph 24 of the Plaintiffs’ complaint, and

13

14 such allegations are accordingly denied.

15

16

25. Selective is not aware of either Zirkle or Matson ever hiring an "illegal

17
immigrant", and accordingly denies all allegations and implications contained in
18

19 paragraph 25 of the Plaintiffs’complaint.
20

21

26. Denied.

22

23

27. Selective denies that it had knowledge of or participated in any illegal

24
25 scheme with Matson. With respect to the balance of the allegations set forth in

26
27 paragraph 27 of the Plaintiffs’ complaint, Selective has insufficient information to

28
29 form a belief as to the truth or falsity thereof, and such allegations are accordingly

30 denied.
31

32

28. Selective denies that it had any knowledge that any person it referred to

33

34 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 5 308121b

Velikanje, Moore & Shore, P.$.
405 East Lincoln Ave. P.O. Box 22550
Yakirna, WA 98907 (509) 248-6030

1 to this day has no knowledge that any person it referred to Matson or Zirkle was not
2
3 lawfully permitted to work in the United States. With respect to what Matson may

4
5 have known about any such workers, or about the 493 workers referred to in the

6
complaint, is unknown to Selective, and the allegations pertaining thereto are
7

8 accordingly denied.
9

10

29. Selective denies that it had any knowledge that any person it referred to

11

12 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact
13
14 to this day has no knowledge that any person it referred to Matson or Zirkle was not

15
16 lawfully permitted to work in the United States. With respect to what Matson may

17
18 have known about any such workers, or about the 493 workers referred to in the

19 complaint, is unknown to Selective, and the allegations pertaining thereto are
20

21 accordingly denied. On the same basis, Selective denies the allegations regarding the
22
23 composition of Matson’ s workforce, and the allegations regarding the "findings" of

24
25 the INS.

26

27

30. Selective denies that there exists a "conspiracy of silence", denies that

28
29 it is well known whether a person in the agriculture workforce is an illegal alien, and

3O denies knowledge of or participation in any course of maintaining separate sets of
31

32 "books". With respect to the raids and other allegations set forth in paragraph 30 of
33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 6 308121b

Velikanje, Moore & Shore, P.S.
atl~rleys at law
405 East Lincoln Ave, P,O, Box 22550
Yakirna. WA 98907
(so~) 24a-~o

1 the Plaintiffs’ complaint, Selective is without sufficient facts to form a belief as to the

2

3 truth or falsity thereof, and accordingly such allegations are denied.

4

5

31. Selective denies that it has participated in or had knowledge of any

6 hirings or rehirings by Zirkle or Matson of persons who were known to be "illegal
7

8 immigrants", or who were known to have "fraudulent" social security numbers.
9

10

32. Selective denies that it had any knowledge that any person it referred to

11

12 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact

13

14 to this day has no knowledge that any person it referred to Matson or Zirkle was not

15
16 lawfully permitted to work in the United States. With respect to what Zirkle may

17
18 have known about the persons referred to it by Selective, or what it may have known

19 about the 50 other workers referred to in the complaint, is unknown to Selective, and
20

21 on that basis is denied.
22

23

33. Denied.

24

25

34. Denied.

26

27

35. Selective admits that there is a certification portion of I-9 forms, but

28
29 denies that it has ever signed such certifications with actual knowledge that the

3O person being employed (or referred for employment) was ineligible for employment.
31

32

36. Denied.

33

34

37. Denied.

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 7 3 08121b

Velikanje, Moore & Shore, P.S,
ztlor~e)’~ at 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

38. To the extent the continuing scheme is alleged to have been perpetrated

2

3 with the knowledge or participation of Selective, such allegation is denied.

4

5

39. Denied.

6

7

40. Selective admits that it has enjoyed contractual relationships with Zirkle

8
and Matson whereby it interviews prospective employees, performs administrative
9

10 duties pertaining to the hiring process, and refers the prospective employees on to
1t

12 Zirkle and Matson. If Zirkle and/or Matson decide that the candidate would make an
13

14 appropriate addition to the workforce, Selective completes the hiring process and

15
16 handles all payroll functions on behalf of Zirkle and Matson. Zirkle and Matson

17
18 dictate the compensation actually received by the worker, the hours that the employee

19 is to work, and the responsibilities that such worker is expected to perform. Whether
20

21 such workers are the employees of Zirkle, Matson, or Selective is a conceptual and
22

23 legal matter best left for interpretation by the Court. Selective admits is paid for its

24
25 services. Selective denies that it "loans" workers, that it enjoys a "joint venture", and

26
27 that this simple, routine transaction by any means establishes a "complex legal

28
29 relationship".

30

41. Selective has no direct knowledge of why Matson or Zirkle have elected

31

32 to utilize its services as an employment agency, and denies that the alleged scheme
33

exists.
35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 8 308121b

Velikanje, Moore & Shore, P.$.
405 East Lincoln Ave. P.O. Box 22550
Yakima, WA 98907 (509) 24~6030

1

42. Paragraph 42 of the Plaintiffs’ complaint, including all of its scurrilous

2

3 fabrications, is denied in its entirety.

4

5

43. Denied.

6

7

44. Denied.

8

45. Denied.

9

10

46. Denied.

11

12

47. Denied.

13

14

48. Selective denies that paragraph 48 of the Plaintiffs’ complaint contains

15
16 an accurate or full recitation of the law.

17

18

49. Paragraph 49 does not allege any facts that pertain to Selective, and

19 Selective offers no response.
20

21

50. To the extent Selective is alleged to have known of or participated in the

22

23 alleged predicate acts, such allegation is denied.

24

25

51. Selective incorporates its prior responses.

26

27

52. As this claim is not asserted against Selective, Selective offers no

28
29 response.

3O

53. Denied.

31

32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 9 308121b

Velikanje, Moore & Shore, P.S.
altorney~ at law 405 Eas~ Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

54. Although this claim is not asserted against Selective, it specifically

2

3 denies that any association-in-fact enterprise exists, or that it knew of or participated

4
5 in any of the alleged acts that give rise to this claim.

6

7

55. Although this claim is not asserted against Selective, it specifically

8 denies that any association-in-fact enterprise exists, or that it knew of or participated
9

10 in any of the alleged acts that give rise to this claim.
11

12

56. Denied.

13

14

57. Selective incorporates its prior responses.

15

16

58. Paragraph 58 does not allege any facts that pertain to Selective, and

17
18 Selective offers no response.

19

59. Denied.

20

21

60. Denied.

22

23

61. Denied.

24

25

62. Denied.

26

27

WHEREFORE, HAVING ANSWERED THE PLAINTIFFS’ COMPLAINT,

28
29 AND BY FURTHER ANSWER AND PLEADING, SELECTIVE OFFERS THE

3O FOLLOWING AFFIRMATIVE DEFENSES:
31

32

1. The Plaintiffs’ damage claims are barred or limited by the statute of

33

34 limitations.

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER- 10 308121b

Velikanje, Moore & Shore, P.S.
att0rney~ at I~w 405 East Lincoln Ave.
P,O. Box 22550 Yakirna, WA 98907
(5o9) :z4a..~o3o

1

The Plaintiffs’ claims are barred or limited by the doctrines of estoppel,

=

waiver, consent and payment, and/or failure to mitigate.

4

5

HAVING FULLY ANSWERED THE PLAINTIFFSC’OMPLAINT,

6
7 SELECTIVE REQUESTS THE FOLLOWING RELIEF:

8

That the pending action be dismissed with prejudice;

9

10

That Selective be awarded its reasonable costs and attorneys’ fees.

11

12

DATED this 3rd day of December, 2002.

13

14

VAtEtoLrnIKeyAfoNrJDEe,fM endO~ORE & SHORE, P.S.

15

16 17 18

~an -

19

2O

21

22

23

24

25

26 27 28

29

3O

31 32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 11 308121b

Velikanje, Moore & Shore, P.$.
attorney’s at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

CERTIFICATE OF SERVICE

2

3

The undersigned certifies under the penalty of perjury under the laws of the

4 State of Washington that on this date, I caused to be served in the manner noted below a copy of this document on the following individuals:

Steve W. Berman
7
Andrew M. Volk 8 HAGENS, BERMAN LLP 9 1301 Fifth Avenue, Suite 2900 10 Seattle, Washington 98101
11

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

12 Howard W. Foster 13 JOHNSON & BELL, LTD. 14 222 N. LaSalle Street, Suite 2200 15 Chicago, Illinois 60601

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

16

17 Terry C. Schmalz, Esq.

18 Halverson & Applegate

19

P.O. Box 22730 Yakima, WA 98907-2715

20

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

21 Ryan M. Edgley 22 Edgley & Beattie, P.S. 23 201 East "D" Street 24 Yakima, Washington 98901

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] ViaMessenger

25
26 Walter G. Meyer, Esq.
27 Meyer, Fluegge & Tenney, P.S. 28 230 South Second Street 29 P.O. Box 22680
Yakima, WA 98907
30

Via Facsimile Via U.S. Mail, postage prepaid Via Overnight Delivery Via Messenger

31

DATED at Yakima, Washington, this~day of’~~~

32

,2002.

33

34

35

Ldri A. Busby

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER- 12 308121b

Velikanje, Moore & Shore, P.$.
att01’ne}~ i! I=w 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(50~) 24e-r~30

 </s> Walter G. Meyer Mark D. Watson MEYER, FLUEGGE & TENNEY, P.S. P.O. Box 22680 Yakima, WA 98907-2680 (509) 575-8500 5 Attorneys for Defendant Zirkle Fruit Co.
6

FILED IN THE U.S. DISTRICT COURT Eastern District o~ Washingl~n
FEB 1 8 2003
JAMES R. LARSEN, CLERK DEPU’[Y
SPOKANE, WASHINGTON

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF WASHINGTON

9

AT YAKIMA

10 OLIVIA MENDOZA and JUANA

)

11

MENDIOLA, individually and on behalf) NO. CY-00-3024-FVS

of all others similarly situated,

)

12

) DEFENDANT ZIRKLE FRUIT

Plaintiffs,

) COMPANY’S AMENDED

13

) ANSWER TO PLAINTIFFS’

14

VS.

) FIRST AMENDED COMPLAINT )

15 ZIRKLE FRUIT CO., a Washington )

corporation and MATSON FRUIT

)

16 COMPANY, a Washington corporation, )

17 and SELECTIVE EMPLOYMENT

)

AGENCY, INC., a Washington

)

18 corporation,

)

19

)

Defendants.

)

20

)

21

COMES NOW the Defendant Zirkle Fruit Company, a Washington corporation

22 (hereinafter "Defendant"), and in answer to Plaintiffs’ First Amended Class Action Complaint

23 for Violation of Racketeer Influenced and Corrupt Organization Acts and Pendent State Law
24
Claim, alleges and states as follows: 25

26

1. Defendant denies the allegations of Paragraph 1, and specifically denies that this

27 is a proper class-action lawsuit.

28 DEFENDANT ZIRKLE AMENDED ANSWER TO

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S.
230 South Second Street / P.O. Box 22680 Yakima, Washington 98907 Tel (509)575-8500 Fax (509)575-4676

1

2. Defendant admits it is a corporation engaged in the business of growing, ware-

2 housing, packing and selling apples and other types of products, but denies the remainder of the

3 allegations of Paragraph 2.
4 3. Defendant denies the allegations contained in Paragraphs 3-7.
5 4. Defendant admits the allegations of Paragraph 8 insofar as it alleges that
6
7 Plaintiffs Olivia Mendoza and Juana Mendiola were lawfully entitled to be employed in the

8 United States at the time they were employed by Defendant; Defendant is without knowledge

9 or information sufficient to form a belief as to the remainder of the allegations contained in
10 Plaintiffs’ Complaint and/or they are denied. 11
5. Defendant admits the allegations of Paragraph 9 insofar as it is a corporation 12 13 organized under the laws of the State of Washington with its principal place of business located
14 in Selah, Washington. Defendant denies the remainder of the allegations contained in Paragraph

15 9.

16

6. Defendant is without knowledge or information sufficient to form a belief as to

17 the truth of the allegations contained in Paragraphs 10-13 of Plaintiffs’ Complaint, and/or they
18

19 are denied.

20

7. Defendant denies the allegations contained in Paragraphs 14-20.

21

8. Defendant is without knowledge or information sufficient to form a belief as to

22 the truth of the allegations contained in Paragraphs 21-22 of Plaintiffs’ Complaint, and/or they
23 are denied.
24 9. Defendant admits the allegations of Paragraph 23 insofar as it alleges Defendants
25
26 Zirkle and Matson operate fruit orchards and packing houses. Defendant denies the remainder

27 of the allegations contained in Paragraph 23.

28
DEFENDANT ZIRKLE AMENDED ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT - 2

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S.
230 South Second Street / P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1

10. Defendant denies the allegations contained in Paragraphs 24-34.

2

11. Defendant admits it entered into an agreement with an entity known as Selective

3 Employment Agency (hereinafter "Selective") and that Selective was to fumish, among other
4 things, properly documented, legal workers. Defendant is without knowledge or information 5
sufficient to form a belief as to the truth of the remainder of the allegations contained in 6
7 Paragraph 35, and/or they are denied.

8

12. Defendant denies the allegations contained in Paragraphs 36-72.

9

13. As a further affirmative defense, Defendant alleges that Plaintiffs’ claimed

10 injuries and damages were caused in whole or in part by Plaintiffs’ contributory fault/negligence,
11 waiver, consent, payment, failure to mitigate, and/or assumption of the risk (and any other
12
13 defense to the extent Plaintiffs knew or should have known about the presence of any illegal

14 workers and failed to take steps to protect their interests or otherwise acquiesced in the

15 continued presence of any illegal workers) and statute of limitations (to the extent any claim is
16 being made for damages accrued outside the applicable statute of limitations). 17
14. That the complaint fails to state a claim upon which relief can be granted as there 18
is no private right of action for violation of the Immigration and Nationality Act or for injunctive 19
20 relief under RICO.

21

15. That the complaint has been filed in violation of FRCP 11 as the factual

22 allegations concerning illegal activities are without any evidentiary support and are not likely
23 to have evidentiary support after a reasonable opportunity for further investigation or discovery.
24 WHEREFORE, having answered Plaintiffs’ Complaint, Defendant prays for relief as
25
26 follows:

27

1. For dismissal of Plaintiffs’ Complaint with prejudice;

28
DEFENDANT ZIRKLE AMENDED ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT - 3

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S.
230 South Second Street / P O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

For an award of Defendant’s costs, expenses and attorney’s fees as provided by

law; and

3. For such other and further relief as the Court deems just and equitable.

DATED this ~ day of February, 2003. 5

6

7

MEYER, FLUEGGE & TENNEY, P.S.

Attomey~fend~nt ~irkle Fruit Company

8

9

10

11
MARK D. WATSON, WSBA #14693 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 DEFENDANT ZIRKLE AMENDED ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT - 4

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S. 230 South Second Street / P.O. Box 22680
Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1

CERTIFICATE OF SERVICE

2
I hereby certify under penalty of perjury under the laws of the state of Washington that 3
the following is true and correct to the best of my knowledge: 4
At all times herein mentioned the undersigned was and now is a citizen of the United 5
States, and a resident of the State of Washington, and over the age of majority; that the
6 undersigned is not a party to the above-entitled action nor interested therein.

7

That on February 14, 2003, the undersigned caused to be deposited in the United States

8 Post Office at Yakima, Yakima County, Washington, envelopes containing true and correct

9 copies of Defendant Zirkle Fruit Company’s Amended Answer to Plaintiffs’ First Amended 10 Complaint; said envelopes bearing correct first class postage and being addressed to:

11 Steve W. Berman, Esq. 12 Andrew M. Volk, Esq.
Hagens Berman LLP 13 1301 Fifth Avenue, Suite 2900
14 Seattle, WA 98101

Howard W. Foster, Esq. Johnson & Bell, LTD 55 East Monroe, Suite 4100 Chicago, IL 60603

15 Terry C. Schmalz, Esq. Halverson & Applegate, P.S.
16 P.O. Box 22720
Yakima, WA 98907 17

Ryan M. Edgley, Esq. Edgley & Beattie, P.S. 201 East "D" Street Yakima, WA 98901

18 Brendan V. Monahan, Esq. Velikanje, Moore & Shore, P.S.

19 P.O. Box C-2550

Yakima, WA 98907 20

21

DATED this 14th day of February, 2003, at Yakima, Washington.

22

23

/

UGG
24

25

26

27

28
DEFENDANT ZIRKLE AMENDED ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT - 5

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S.
230 South Second Street / P.O. Box 22680 Yakim~, Washington 98907
Tel (509)575-8500 F~ (509)575-4676

 </s> 1

Ryan M. Edgley

402 E. Yakima Avenue, Suite 1080

2

Yakima, WA 98901

Telephone (509) 248-1740

3

Attorneys for Defendants

4

FILEB tN THE U.$. I~ISTRICT COURT F..A81"ERN DISTRICT OF WASHINGTON
MAR 0 6 2003
.,~:’. dAMES R. LARSEN, CLEIqK DEPUTY
YAKIMA, WASHINGTON
Honorable Fred Van Sickle

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF WASHINGTON

7

OLIVIA MENDOZA and JUANA

8

MENDIOLA, individually and on

behalf of all other similarly situated, 9

Plaintiffs, 10

VS.
11

ZIRK_LE FRUIT CO., a Washington

12

corporation, MATSON FRUIT

COMPANY, a Washington corporation

13

and SELECTIVE EMPLOYMENT

AGENCY, INC., a Washington

14

corporation,

NO. CY-00-3024-FVS
ANSWER OF DEFENDANT MATSON FRUIT COMPANY TO THE FIRST AMENDED CLASS ACTION COMPLAINT

15

Defendants.

16
Defendant Matson Fruit Co. submits this Answer to the plaintiffs’ First
17

18

Amended Class Action Complaint, and responds to the allegations therein as

19

follows:

20

1. Denies this action may be appropriately pursued on behalf of the

21

putative class described in Paragraph No. 1 of the Complaint.

22
2. Admits Matson and Zirkle are corporations engaged in the
23
business of growing, warehousing, packing and selling apples

ANSWER OF DEFENDANT - 1 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakirna, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

and other types of produce. Matson Fruit Co. denies every other

2

allegation included in Paragraph No. 2 of the Complaint.

3
Denies every allegation included in Paragraph No. 3 of the
4
Complaint.
5

6

Admits Selective Employment Agency is a Washington

7

corporation conducting business, employee recruiting and

8

placement in the state of Washington. Matson Fruit Co. denies

9

every other allegation included in Paragraph No. 4 of the

10
Complaint.
11
Denies every allegation included in Paragraph No. 5 of the
12

13

Complaint.

14

Denies every allegation included in Paragraph No. 6 of the

15

Complaint.

16

Denies every allegation included in Paragraph No. 7 of the

17
Complaint.
18
Matson Fruit Co. has insufficient information to form a belief as
19

20

to the truth of the allegations contained in Paragraph No. 8 of the

21

Complaint and, therefore, denies said allegations.

22

Admits that Zirkle Fruit Co. is a Washington corporation, with

23

its principal place of business located in Selah, WA. Matson

ANSWER OF DEFENDANT - 2 MATSON FRUIT COMPANY

I~DGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

Fruit Co. denies every other allegation included in Paragraph No.

2

9 of the Complaint.

3
10. Admits that Matson Fruit Co. is a Washington corporation, with

4
its principal place of business located in Selah, WA. Matson
5

6

Fruit Co. denies every other allegation included in Paragraph No.

7

10 of the Complaint.

8

11. Admits that Selective Employment Agency is a Washington

9

corporation, with its principal place of business located in

10
Yakima, WA. Matson Fruit Co. denies every other allegation

11
included in Paragraph No. 11 of the Complaint.
12

13

12. Admits this court has subject matter jurisdiction over Count I of

14

the Complaint alleging violation of the Racketeer Influenced and

15

Corrupt Organizations Act. Matson Fruit Co. denies that it

16

would be appropriate for the court to exercise supplemental

17
jurisdiction over Count II of the Complaint alleging violation of
18
state common law.
19
13. Denies the occurrence of "illegal acts" alleged in Paragraph No.
20

21

13 of the Complaint. Matson Fruit Co. admits the parties reside

22

and are domiciled in the Eastem District of Washington, and that

23

venue is properly within this District.

ANSWER OF DEFENDANT - 3 MATSON FRUIT COMPANY

EDGLEY & BEATI’IE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740
Fax; (509) 248-1573

14. Denies this action may be appropriately pursued as a class

2

action, or on behalf of the putative class described in Paragraph

3
No. 14 of the Complaint, pursuant to Fed. R. Civ. P. 23(b)(2) or
4
(b)(3).
5

6

15. Denies every allegation included in Paragraph No. 15 of the

7

Complaint.

8

16. Denies every allegation included in Paragraph Nos. 16(a)

9

through 16(g) of the Complaint.

10
17. Denies every allegation included in Paragraph No. 17 of the
11
Complaint.
12

13

18. Matson Fruit Co. has insufficient information to form a belief as

14

to the truth of the allegations included in Paragraph No. 18 of the

15

Complaint and, therefore, denies said allegations.

16

19. Denies every allegation included in Paragraph No. 19, and in

17
Paragraph Nos. 19(a) through 19(d) of the Complaint.
18
20. Denies every allegation included in Paragraph No. 20 of the
19

20

Complaint.

21

21. Admits the allegations included in Paragraph No. 21 of the

22

Complaint.

23

ANSWER OF DEFENDANT - 4 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P,S, 201 East "D" Street
Yakima, WA 989O1 Phone: (509) 248- t 740
Fax: (509) 248-1573

1

22. Matson Fruit Co. has insufficient information to form a belief as

2

to the truth of the allegations that "the industry now generates

3
over $1 billion" or that "many of these workers live in poverty"
4
and, therefore, denies said allegations. Matson Fruit Co. admits
5

6

the remainder of the allegations included in Paragraph No. 22 of

7

the Complaint.

8

23. Admits Matson Fruit Co. and Zirkle Fruit Co. operate fruit

9

orchards and packing houses, and that they are motivated to

10
avoid excessive labor costs. Matson Fruit Co. further admits the
11
work in the fruit industry has attracted many workers of Mexican
12

13

citizenship. Matson Fruit Co. denies that it keeps labor costs "as

14

low as possible." Matson Fruit Co. has insufficient information

15

to form a belief as to the truth of the allegations that "many" of

16

the "Mexican nationals are illegal immigrants who have been

17
smuggled into the U.S. and/or are harbored in the U.S. by
18
relatives, friends and employers" and, therefore, denies said
19

20

allegations. Matson Fruit Co. denies every other allegation

21

stated in Paragraph No. 23 of the Complaint.

22

24. Admits Matson Fruit Co. had the I-9 Forms maintained for all

23

employees audited by the INS as part of "Operation Snowbird,"

ANSWER OF DEFENDANT - 5 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

and that Matson Fruit Co. was instructed by the INS to terminate

2

workers who the INS determined (sometimes erroneously) to be

3
aliens unauthorized to work in the United States. Matson Fruit
4
Co. denies every other allegation included in Paragraph No. 24
5

6

of the Complaint.

7

25. Admits the INS completed audits of the I-9 Forms and other

8

personnel records maintained by Matson Fruit Co. Matson Fruit

9

Co. denies every other allegation included in Paragraph No. 25

10
of the Complaint.
11
26. Denies every allegation included in Paragraph No. 26 of the
12

13

Complaint.

14

27. Denies every allegation included in Paragraph No. 27 of the

15

Complaint.

16

28. Admits the INS examined, in 1998, I-9 Forms maintained by

17
Matson Fruit Co. for 123 current employees, and determined that

18
62 employees (50%) had used fraudulent documents purportedly
19

20

establishing their authorization to work. Matson Fruit Co.

21

admits the INS examined, in 1998, a total of 661 I-9 Forms

22

maintained for current and former employees, and determined

23

that 493 employees (74%) had used fraudulent documents

ANSWER OF DEFENDANT - 6 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S, 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

purportedly establishing their authorization to work. Matson

2

Fruit Co. denies every other allegation included in Paragraph No.

3
28 of the Complaint.
4
29. Denies every allegation included in Paragraph No. 29 of the
5

6

Complaint.

7

30. Denies every allegation included in Paragraph No. 30 of the

8

Complaint.

9

31. Denies every allegation included in Paragraph No. 31 of the

10
Complaint.
11
32. Denies every allegation included in Paragraph No. 32 of the
12

13

Complaint.

14

33. Denies every allegation included in Paragraph No. 33 of the

15

Complaint.

16

34. Matson Fruit Co. has insufficient information to form a belief as

17
to the truth of the allegations stated in Paragraph No. 34 of the

18

Complaint and, therefore, denies said allegations.
19

20

35. Admits Matson had entered into a contractual agreement with

21

Selective, and that Selective is a separate legal entity under

22

separate ownership. Matson admits Selective agreed to employ

23

workers, pay said workers and withhold and remit taxes

ANSWER OF DEFENDANT - 7 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yaklma, WA 98901 Phone: (509) 248- ! 740 Fax: (509) 248-1573

1

applicable to the employment of said workers. Matson further

2

admits Selective agreed to "loan" said workers to Matson, and

3
that the workers would then take direction from Matson’s
4
foremen and managers; and that Matson paid compensation to
5

6

Selective for the provision of workers described herein. Matson

7

denies the allegation of "close cooperation," and denies the

8

allegation of a "joint venture" existing between Matson Fruit Co.

9

and Selective Employment Agency. All other allegations

10
included in Paragraph No. 35 of the Complaint are denied unless
11
explicitly admitted herein.
12

13

36. Denies every allegation included in Paragraph No. 36 of the

14

Complaint.

15

37. On information and belief, Matson Fruit Co. admits Selective’s

16

usual manner of conducting business is to reject candidates for

17
employment if they offer suspect forms of work authorization

18
documents. Matson Fruit Co. denies every other allegation
19

20

included in Paragraph No. 37 of the Complaint.

21

38. Denies every allegation included in Paragraph No. 38 of the

22

Complaint.

23

ANSWER OF DEFENDANT - 8 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P,S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740
Fax: (509) 248-1573

!

39. Denies every allegation included in Paragraph No. 39 of the

2

Complaint.

3 40. Denies every allegation included in Paragraph No. 40 of the
4
Complaint. 5

6

41. Denies every allegation included in Paragraph No. 41 of the

7

Complaint.

8

42. Admits plaintiff Olivia Mendoza was employed by Matson Fruit

9 Co. for some part of calendar year 2000, but denies every other
10 allegation included in Paragraph No. 42 of the Complaint.
11
43. Denies every allegation included in Paragraph No. 43 of the 12

13

Complaint.

14

44. Denies the occurrence of the "Illegal Immigrant Hiring Scheme,"

15

and denies every other allegation included in Paragraph No. 44

16

of the Complaint.

17 45. Denies every allegation included in Paragraph No. 45 of the
18
Complaint. 19

20

46. Denies every allegation included in Paragraph No. 46 of the

21

Complaint.

22

23

ANSWER OF DEFENDANT - 9 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.$. 201 East "D" Street Yaldma, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

47. Matson Fruit Co. has insufficient information to form a belief as

2

to the truth of the allegations included in Paragraph No. 47 of the

3
Complaint and, therefore, denies said allegations.
4
48. Denies every allegation included in Paragraph No. 48 of the
5

6

Complaint.

7

49. Denies every allegation included in Paragraph No. 49 of the

8

Complaint.

9

50. Denies that Paragraph No. 50 of the Complaint fully or

10
accurately states the applicable law.
11
51. Denies every allegation included in Paragraph No. 51 of the
12

13

Complaint.

14

52. In answer to Paragraph No. 52 of the Complaint, Matson Fruit

15

Co. incorporates its preceding responses as if fully set forth.

16

53. Admits Matson Fruit Co. is a "person" as defined by 18 U.S.C.

17
§ 1961(3). Matson Fruit Co. denies every other allegation
18
included in Paragraph No. 53 of the Complaint.
19

20

54. Denies every allegation included in Paragraph No. 54 of the

21

Complaint.

22

55. Denies every allegation included in Paragraph No. 55 of the

23

Complaint.

ANSWER OF DEFENDANT - 10 MATSON FRUIT COMPANY

EDGLEY & BEATTIE, P.S. 201 East "D" Sla’eet Yakima, WA 9890 l
Phone: (509) 248-I 740 Fax: (509) 248-1573

56. Denies every allegation included in Paragraph No. 56 of the

Complaint.

3
57. Denies every allegation included in Paragraph No. 57 of the
4
Complaint.
5

6

58. Denies every allegation included in Paragraph No. 58 of the

7

Complaint.

8

59. In answer to Paragraph No. 59 of the Complaint, Matson Fruit

9

Co. restates and incorporates its foregoing responses to the

10
Complaint.
11
60. Paragraph 60 of the Complaint does not include any factual
12

13

allegation, to which Matson Fruit Co. could respond.

14

61. Denies every allegation included in Paragraph No. 61 of the

15

Complaint.

16

62. Denies every allegation included in Paragraph No. 62 of the

17
Complaint.

18
63. Denies every allegation included in Paragraph No. 63 of the
19

20

Complaint.

21

64. Denies every allegation included in Paragraph No. 64 oft he

22

Complaint.

23

ANSWER OF DEFENDANT - 11 MATSON FRUIT COMPANY

EDGLEY & BEATI’IE, P.S. 201 East "D" Street
Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

FURTHER, AS AFFIRMATIVE DEFENSES, Matson Fruit Co.

2

contends the plaintiffs’ claims are barred by the applicable statutes of

3
limitation, estoppel, waiver, consent and payment; and that the

4
plaintiffs have failed to mitigate their damages. Finally, Matson Fruit
5

6

Co. contends Count II of the Complaint alleging civil conspiracy fails

7

to state a claim on which relief may be granted.

8

HAVING ANSWERED the plaintiffs’ Complaint, Matson Fruit

9

Co. requests the court dismiss the plaintiffs’ Complaint, with prejudice;

10
and asks that the court award Matson Fruit Co. its costs and reasonable

11

attorney fees incurred in this matter.
12

13

RESPECTFULLY SUBMITTED this 3r~ day of March, 2003.

14

15

16

17

18

Attorneys for Matson Fruit Co.

19

20

21

22

23

ANSWER OF DEFENDANT - 12 MATSON FRUIT COMPANY

EDGLEY & BEA’i’TIE, P.S, 201 East "D" Street
Yakiraa, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

 </s> 1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900
3 Seattle, WA 98101 (206) 623-7292
4
Howard W. Foster 5 JOHNSON & BELL, LTD
55 East Monroe, Suite 4100 6 Chicago, IL 60603
(312)372-0770 7
Michael V. ConnelI, WSBA No. 28978 8 SMART LAW OFFICES, P.S.
501 North Second Street 9 Yakima, WA 98901
(509) 573-3333 10
Attorneys for Plaintiffs 11

o zoo3 i

12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF WASHINGTON

AT YAKIMA

15

16

OLIVIA MENDOZA, JUANA

17 MENDIOLA and VICTOR SANCHEZ,

individually and on behalf of all others

No. 00 CY 3024-FVS

18 similarly situated,

JURY TRIAL DEMANDED

19

Plaintiffs,

SECOND AMENDED CLASS

20

ACTION COMPLAINT FOR

VIOLATION OF RACKETEER

21 ZIRKLE FRUIT CO., SELECTIVE

INFLUENCED AND CORRUPT

EMPLOYMENT AGENCY, INC.,

ORGANIZATION ACT AND

22 DARYL MATSON, RODERICK

PENDENT STATE LAW CLAIM

MATSON, WILLIAM ZIRKLE, GARY

23 HUDSON and WILLIAM WANGLER,

24

Defendants.

25

26

SECOND AMENDED CLASS ACTION -1COMPLAINT
1348 l0 006g BSC,DOC

TELEPHONE ~206) 623-7292

1

I. NATURE OF ACTION

2

1. This is a class action brought on behalf of all persons legally authorized

3 to be employed in the United States who have been hired by Matson Fruit Co.

4 ("Matson" or "Matson Fruit") and Zirkle Fruit Co. ("Zirkle" or "Zirkle Fruit"), either

5 directly or through Defendant Selective Employment Agency ("Selective"), for

6 employment in their packinghouses as hourly wage earners or in their fruit orchards as

7 either hourly wage or piece rate workers since 1996 (hereafter "the Class" or "Class

8 members").

9

2. Matson and Zirkle are corporations engaged in the business of growing,

10 warehousing, packing and selling apples and other types of produce. Defendants

11 Daryl Matson, Roderick Matson, William Zirkle, William Wangler and Gary Hudson

12 have been engaged in a scheme to employ workforces at these companies that are

13 substantially comprised of undocumented immigrants who have no legal right to be

14 employed in the U.S. (hereinafter the "Illegal Immigrant Hiring Scheme" or the

t5 "Scheme").

16

3. The Illegal Immigrant Hiring Scheme was formulated at Zirkle Fruit by

17 Defendants William Zirkle and Wiltiana Wangler. Later, when he became employed

18 by the company, Gary Hudson joined the Scheme. These Defendants have since

19 continuously executed the Scheme. Additionally, Defendants Daryt Matson and

20 Roderick Matson executed the same Scheme at their company, Matson Fruit. (These

21 persons are hereafter referred to collectively as "the individual Defendants.") These

22 Schemes were intended to, and did, enrich the individual Defendants at the expense of

23 Class members, by depressing their wages.

24

4. Additionally, Zirkle Fruit has used Selective as a front company for the

25 perpetuation of the Illegal Immigrant Hiring Scheme.

26

SECOND AMENDED CLASS ACTION -2-
COMPLAINT
~348.] 0 D06~, rtSC.DOC

1

5. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced

2 and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and Washington

3 state law.

4

6. The purpose of the Illegal Immigrant Hiring Scheme is to substantially

5 depress the wage rates below those which Matson and Zirkle would have to pay Class

6 members in a labor market comprised exclusively of legally authorized workers. This

7 is accomplished by employing work forces substantially comprised of illegal workers,

8 who, because of their undocumented status, are willing to be exploited at depressed

9 wages. These depressed wages are then paid to Class members.

10

7. Defendants’ scheme involving the knowing employment and harboring

11 of illegal immigrants in violation of § 274 of the Immigration and Nationality Act is

12 ongoing, threatening to continue, and victimizing more persons every day, unless and

13 until halted by judicial intervention.

14

II. PARTIES, JURISDICTION AND VENUE

15

8. Plaintiff Olivia Mendoza is a resident of the State of Washington and of

16 this district. She is legally authorized to be employed in the U.S. She was employed

17 by Matson Fruit as an hourly paid worker during the Class period.

18

9. Plaintiff Juana Mendiola is a resident of the State of Washington and of

19 this district. She is legally authorized to be employed in the U.S. She was employed

20 by Selective to work at Zirkle Fruit as an hourly paid worker in 2000.

21

10. Plaintiff Victor Sanchez is a resident of the State of California and was at

22 all relevant times legally authorized to be employed in the U.S. He was employed by

23 Zirkle Fruit as an hourly or piece rate worker in its orchards for several years, through

24 the year 2,000.

25

26

SECOND AMENDED CLASS ACTION COMPLAINT
1348. lo ~)068 BSC DOC

-3-

HAGENS I~Et/MAN LLP

1

11. Each of the Plaintiffs were employed by Matson, Zirkle or Selective at

2 wage and piece rates set by Defendants, which were depressed by the Illegal

3 Immigrant Hiring Scheme.

4

12. Defendant Zirkle Fruit Co. ("Zirkle" or "Zirkle Fruit") is a corporation

5 organized under the laws of the State of Washington with its principal place of

6 business located in Selah, Washington. Zirkle Fruit is named as a Defendant only in

7 Count II (for Civil Conspiracy).

8

13. Defendant William Zirkle is the President of Zirkle and has personally

9 directed his subordinates, Defendants William Wangler and Gary Hudson, to execute

10 the Illegal Immigrant Hiring Scheme through numerous actions, detailed below, which

11 resulted in hiring large numbers of persons who are ineligible for employment under

12 U.S. immigration law.

13

14. William Zirkle, William Wangler and Gary Hudson, all citizens of

14 Washington and of this district, have conspired to commit a pattern of racketeering

15 activity, as detailed herein, in this district.

16

15. Roderick Matson is the President of Matson Fruit and initially

17 implemented the Illegal Immigrant Hiring Scheme on behalf of Matson Fruit. Daryl

18 Matson is a principal in the company and, as its director of human resources, has

19 personally conspired to and has furthered and executed the Scheme. Roderick Matson

20 and Daryl Matson are citizens of Washington and of this district.

21

16. Defendant Selective Employment Agency ("Selective") is a corporation

22 organized under the laws of the State of Washington with its principal place of

23 business located in Yakima, Washington.

24

17. This Court has subj ect matter jurisdiction over Count I under the federal

25 question doctrine pursuant to 28 U.S.C. § 1331 and 18 U.S.C. § 1964(a). This Court

26 may exercise supplemental jurisdiction over Count II pursuant to 28 U.S.C. § 1367(a).

SECOND AMENDED CLASS ACTION COMPLAINT
348. tO 0068 BSC.DOC

-4-

HAGENS BERMAN LLP

1

18. Venue is proper in this District because the illegal acts giving rise to this

2 case occurred in this District and all of the parties reside and are domiciled here.

3

III. .CLASS ALLEGATIONS

4

19. This action is brought and may be maintained as a class action pursuant

5 to Fed. R. Civ. P. 23(b)(2) and (b)(3). Plaintiffs bring this action on behalf of

6 themselves and all other persons legally authorized to be employed in the U.S. who

7 have been hired by Matson and Zirkle, either directly or through Defendant Selective,

8 for employment in their packinghouses as hourly wage earners or in their fruit

9 orchards as either hourly wage or piece rate workers since September 30, 1996

10 (hereafter the Class" or "Class members").

11

20. The Class for whose benefit this action is brought is so numerous that

12 joinder of all Class members is impracticable. The actual number can be ascertained

13 through discovery of Defendants’ books and records and cross-checking I-9 forms

14 filled out by Defendants with appropriate government agencies to determine whether

15 employees were legally authorized to be employed.

16

21. Among the questions of fact and law that are common to the Class are:

17

a. Whether the Defendants have been and are currently engaged in a

18 scheme to employ illegal immigrant workers in order to depress the wages they must

19 pay to workers;

20

b. To what extent the Illegal Immigrant Hiring Scheme has caused

21 Class members’ wages to be depressed;

22

c. Whether the Illegal Immigrant Hiring Scheme violates the

23 Immigration and Nationality Act and RICO; and

24

" d. Whether Zirkle has engaged in a civil conspiracy with Selective.

25

22. Plaintiffs’ claims are typical of those of the members of the Class

26 inasmuch as their alleged damages were caused by the Illegal Immigrant Hiring

SECOND AMENDED CLASS ACTION -5-
COMPLAINT

HAGENS BERMAN LLP

Scheme. Plaintiffs seek no relief that is antagonistic or adverse to other Class

members.

23. Plaintiffs are committed to the vigorous prosecution of this action and

have retained counsel who are competent in the prosecution of class actions, RICO

5 and complex litigation. Accordingly, Plaintiffs will fairly and adequately protect and

6 represent the interests of the Class.

7

24. Questions of law or fact that are common to the members of the Class are

8 substantially similar and predominate over any questions affecting only individual

9 Class members, and a class action is the only appropriate method for the fair and

10 efficient adjudication of this controversy for the following reasons, among others:

11

a. The individual amounts of damages involved, while not

12 insubstantial, are generally not large enough to justify individual actions;

13

b. The costs of individual actions would unreasonably consume the

14 amounts that would be recovered;

15

c. Individual actions would unduly burden the judicial system; and

16

d. Individual actions brought by Class members would create a risk

17 of inconsistent results and would be unnecessarily duplicative of this litigation.

18

25. Plaintiffs anticipate no difficulty in the management of this action

19 because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable

20 through discovery, the identities of the members of the Class are known to Matson

21 Fruit and Zirkle Fruit, and damages can be calculated through expert testimony.

22

IV. STATEMENT OF OPERATIVE FACTS

23

26. Eastern Washington is the heart of Washington’s famed apple and fruit

24 industry. This area, which is uniquely situated for growing fruit due to a combination

25 of abundant sunshine and cheap irrigation, has over the years generated hundreds of

26

SECOND AMENDED CLAS S ACTION COMPLAINT
1348 l0 0~68 BSC DOC

-6-

1 millions of dollars in annual revenues and has produced fruit recognized for its quality 2 throughout the United States and many foreign countries.

3

27. In Washington State there are more than 15,000 fruit packers and 30,000

4 pickers of orchard fruit. Many operations require unskilled laborers for harvesting

5 and packing and other related tasks requiring manual labor. While the industry now

6 generates over $1 billion, many of these workers live in poverty.

7

28. The individual Defendants own and manage Matson and Zirkle’s fruit

8 orchards and packing houses. They keep labor costs as low as possible and, due to a

9 variety of complex social and economic factors, the industry’s demand for low-skilled

10 workers has attracted many workers of Mexican citizenship. Many of these Mexican

ll nationals are illegal immigrants who have been smuggled into the U.S. and/or are

12 harbored in the U.S. by relatives, friends and employers.

13 A. Roderick and Daryl Matson Commence And Perpetuate The Scheme At Matson Fruit
14
29. At some time before September 1996, Roderick Matson determined that
15
he could significantly reduce labor costs and increase profits for Matson Fruit Co. if
16
the company employed illegal immigrants, in violation of U.S. immigration law, at
17
depressed wages for work in the company’s expansive fruit orchards and
18
packinghouse. Accordingly, Roderick Matson, as president and general manager of.
19
the company, approved the following procedures: 1) employing orchard and
20
packinghouse workers without making copies of the documents workers present to the
21
company to establish identity and work eligibility in order to conceal the fact that
22
most of these workers were presenting documents which were facially defective; 2)
23
not subjecting the I-9 forms for these workers to any further verification, such as
24
calling the Social Security Administration to check the validity of the social security
25
numbers presented by the workers even though Mr. Matson knew that a substantial
26

SECOND AMENDED CLASS ACTION COMPLAINT
[34g 10 0068 BSC DC~’

-7-

number of persons seeking employment in the orchards and packinghouse were not

2 eligible for employment; and 3) separating the files (containing I-9 forms) of known

3 illegal workers from the other worker files so they could not be discovered in case of

4 an I.N.S. audit.

5

30. Roderick Matson also knew that the company had been subjected to an

6 I.N.S. audit of the work eligibility of its employees in 1990, presumably as a result of

7 reports the company was employing illegal immigrant workers.

8

31. As a result of these hiring policies, Roderick Matson caused the company

9 to employ hundreds of persons who presented falsified or fraudulent documents. He

10 then was able to set wage rates for all packinghouse and orchard workers which were

11 substantially depressed below the levels they would be in a labor market comprised of

12 legally documented workers.

13

32. As part of the Illegal Immigrant Hiring Scheme, Roderick Matson

14 shielded known illegal workers from detection by having supervisors, including

15 Gloria Salas, herself an illegal, undocumented worker, warn illegal workers in

16 advance of I.N.S. visits. Heeding the warnings, undocumented workers would not

17 appear for work on days when the I.N.S. was expected to make a visit.

18

33. In 1998, as part of"Operation Snowbird," a crackdown on illegal

19 immigrant hiring at Washington fruit orchards, the I.N.S. audited Matson Fruit’s

20 employees and determined that 74% of its recently terminated seasonal employees and

21 50% of its current packinghouse workers were ineligible for employment based upon

22 falsified or fraudulent data provided on their I-9 forms. The I.N.S. ordered the

23 company to terminate many of these illegal workers. Supervisor Gloria Salas was

24 among those terminated.

25

34. In response to "Operation Snowbird," Roderick Matson asked his brother

26 Daryl Matson to become head of human resources for Matson Fruit in order to prevent

SECOND AMENDED CLASS ACTION COMPLAINT
1341~.1o 0o61t BSC.DOC

-8-

1 further run-ins with the I.N.S. while perpetrating the Illegal Immigrant Hiring Scheme 2 to the greatest extent possible. Daryl Matson agreed to assume this position. While

3 he implemented some changes in the company’s hiring policies with respect to

4 packinghouse workers, he declined to institute changes that might have actually

5 abated the illegal hiring practices. Moreover, the Illegal Immigrant Hiring Scheme 6 continued unabated with respect to the hiring of orchard workers, which practice was

7 essentially unchanged even after Operation Snowbird. By taking no steps to prevent

8 hiring of illegal workers in the orchards - such as checking social security numbers

9 which can be done by employers through a simple phone call - Daryl Matson chose to

10 abet the practice of hiring illegal workers, and to harbor those he knew to be illegal --

11 the great majority of the orchard workers employed by Matson.

12

35. All of the acts alleged to have been committed by Daryt Matson were

13 acquiesced in by Roderick Matson and undertaken pursuant to their conspiracy to

14 employ and harbor illegal immigrant workers.

15

36. Daryl Matson and Roderick Matson have refused to order the persons

16 who conduct orchard hiring to copy the worker eligibility documents so they can be

17 scrutinized or to call the Social Security Administration to check social security

18 numbers presented, and have taken no other measures to verify the veracity of worker

19 documents. They refuse to do so because they know most of these workers are illegal

20 and are presenting falsified or fraudulent documents to the supervisors who Daryl

21 Matson and Roderick Matson have hand-picked to do orchard hiring. Daryl Matson

22 and Roderick Matson have thus deliberately turned a blind eye to the flagrant and

23 repeated illegal hiring that occurs on a daily basis in their cotnpany’s orchards.

24

37. Plaintiffs allege, based upon their information and belief, that Roderick

25 Matson and DaryI Matson have caused Matson Fruit to hire hundreds of illegal

26 workers, more than 100 per year since 1996, and that a substantial majority of the

SECOND AMENDED CLASS ACTION -9COMPLAINT
1348.10 [1068 BSC DOC

HAGENS BERMAN LLP

company’s current orchard workers and many of its packinghouse workers are

undocumented and have obtained their employment by presenting falsified or

fraudulent documents to Matson Fruit, which the company accepted as part of the

Illegal Immigrant Hiring Scheme.

5

38. In addition, in 2000, Daryl Matson entered into an agreement with

6 Selective for the hiring of packinghouse workers. Daryl Matson knew Selective

7 would not take any steps to verify the eligibility of these workers, who would

8 technically be "employed" by Selective and "loaned" to Matson for a fee. In light of

9 Operation Snowbird, this appeared to him to be yet another ruse to conceal the

10 employment of illegal immigrant workers.

1!

39. After this action was filed, in order to minimize his liability, Daryl

12 Matson requested that Selective verify the social security numbers of its workers at

13 Matson. Many were found to be using non-matching (i.e., fake) numbers.

14

40. Therefore, Daryl Matson and Roderick Matson have conspired to violate

15 § 274 of the Immigration and Nationality Act in two separate respects:

16

Violation I: Knowingly Employing Illegal Immigrants (Aliens)

17

41. The statute provides, in relevant part:

18

Any person who, during.any 12-month period, k.nowingty

19

hires for employment at least 10 individuals witia actual knowledge tl~at the individuals are aliens.., shall be fined

20

under Title 18, or imprisoned for not more than 5 years, or both.

21 8 U.S.C. § 1324(a)(1)(B)(3)(A).

22

42. Defendants Roderick Matson and Daryl Matson have violated the above-

23 cited statute by employing more than 10 undocumented, illegal aliens knowing them

24 to be smuggled into the country or harbored once they arrived here. Roderick Matson

25 has done so personally, through his actions as president of Matson and in directing his

26 subordinates from September 30, 1996 to the present. Defendant Daryl Matson has

SECOND AMENDED CLASSACTION 10COMPLAINT
1348 1C O068 B$C.DOC

1 conspired with Roderick Matson in all of these acts since he assumed his current 2 position as human resources manager for Matson in early 1999.

3

Violation Ih Harboring Illegal Immigrants (Aliens)

4

43. By knowingly employing illegal immigrants and also by causing

5 supervisors to warn them of imminent I.N.S. visits, Daryl Matson and Roderick

6 Matson have each "harbored" many workers in Matson’s packinghouse and orchards

7 in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), which makes it a federal crime for

8 anyone who "knowing or in reckless disregard of the fact that an alien has come to,

9 entered, or remains in the United States in violation of law, conceals, harbors, or

10 shields from detection, or attempts to conceal, harbor, or shield from detection, such

11 alien in any place, including any building or any means of transportation." This is a

12 RICO predicate offense.

13

44. Accordingly, Plaintiffs allege that Roderick Matson and Daryl Matson

14 have each violated the above-cited statute by their actions detailed above at Matson

15 Fruit, which constitute knowing or reckless harboring of illegal aliens.

16 B. William Zirkle, William Wangler and Ga_ry Hudson Commence And

17

Perpetuate The Illegal Immigrant Hiring Scheme At Zirkle Fruit

18

45. At some time before September 1996, Defendant William Zirkle,

19 President and principle owner of Zirkle Fruit and a life-long orchardist, determined

20 that he could significantly reduce the labor costs of his company, and thereby increase

21 profits, by employing many of the illegal, undocumented Mexican workers in the area

22 at depressed wages.

23

46. William Wangler, who was at that time responsible for Zirkle Fruit’s

24 hiring policies, determined that large numbers of illegal immigrant workers could be

25 hired at the company’s vast orchards by dispersing the hiring to the orchard

26 supervisors and away from the company’s offices. Accordingly, Wangler formed a

SECOND AMENDED CLASS ACTION 11-
COMPLAINT
1343.10 0068 BSC.DC, C

HAGENS BERMAN LLP

1 conspiracy with William Zirkle to direct the orchard supervisors not to copy the

2 verification documents presented by workers to prevent later scrutiny of them and not

3 to verify the social security numbers on the largely falsified or fraudulent documents

4 they presented to the supervisors. William Wangler and William Zirkle knew at all

5 times that a large majority of the workers who sought employment at the orchards

6 were illegal immigrants presenting falsified or fraudulent documents.

7

47. William Zirkle and William Wangler also conspired to employ illegal

8 workers in the company packinghouse in the same manner: by not copying or

9 scrutinizing employment eligibility documents, despite their knowledge that the

10 Yakima area was replete with illegal workers who carried fake social security cards

11 bearing non-existent numbers. Indeed, the person Zirkle Fruit currently employs to

12 complete worker I-9 forms at the packinghouse, Juana Castaneda, herself obtained

13 employment at Zirkle using a fake social security card and a fake Alien Registration

14 Card. As detailed below, Ms. Castaneda hires illegal workers with "a wink and a nod"

15 and at times fails to terminate the employment of other workers who she learns have

16 been employed using falsified or fraudulent documents. William Zirkle and William

17 Wangler use Ms. Castaneda to advance the Illegal Immigrant Hiring Scheme.

18

48. In 1997, the I.N.S. audited Zirkle’s I-9 forms and concluded that many of

19 the workers were ineligible for employment. Additionally, the I.N.S. raided the

20 packinghouse, apprehended several workers and deported them to Mexico. During

21 the raid, Zirkle supervisors told known illegal workers to hide, indicating that

22 Defendants knew they were illegal and were knowingly employing and harboring

23 them in violation of federal law.

24

49. After these events, Zirkle Fruit hired Gary Hudson to be human resources

25 manager. Although he knew from the I.N.S. audit that the company hired many

26 illegal workers, Hudson failed to change Zirkle Fruit’s strong preference for illegal

SECOND AMENDED CLASS ACTION - 12-
COMPLAINT
1345.10 0068 BSC DOC

1 immigrant workers. He joined in the William Zirkle-William Wangler conspiracy to

2 violate § 274 of the Immigration and Naturalization Act. He failed to change the

3 orchard supervisors’ policy of not copying or checking the veracity of eligibility

4 documents, even though he knew them to be largely fraudulent or falsified. He knew

5 that Juana Castaneda was hired by the company with a fraudulent social security card

6 and a falsified Alien Registration Card, yet maintained her in her powerful position of

7 verifying the accuracy of the document presented by new workers when filling out

8 their 1-9 forms. Plaintiffs believe and thereby allege that Ms. Castaneda has

9 knowingly failed to terminate the employment of persons who have been determined

10 to be ineligible for employment. Yet she continues to enjoy the confidence of Mr.

11 Hudson and Mr. Zirkle.

12 C. Zirkle "Outsources" The Illegal Immigrant Hiring Scheme To Selective

13

50. In 1998, Mr. Hudson decided to "outsource" some of Zirkle Fruit’s hiring

14 needs by using Selective as a front for employing packinghouse workers. According

15 to their agreement, Selective would actually examine the employees’ eligibility

16 documents, "employ" them and loan the workers to Zirkle for a fee. Mr. Hudson

17 knew Selective would not copy the eligibility documents nor perform any check as to

18 their authenticity. Nor would Zirkle Fruit. He placed Ms. Castaneda in charge of the

19 day-to-day operation of the program knowing that she would harbor any workers she

20 believed were ineligible for employment.

21

51. After this action was filed, Mr. Hudson requested that Selective check the

22 social security numbers of its workers. Many workers were revealed to have used

23 fraudulent or falsified social security numbers. Nevertheless, Mr. Hudson chose to

24 continue the association with Selective and never asked any further questions about

25 the workers Selective provided to Zirkle Fruit.

26

SECOND AMENDED CLASS ACTION -13COMPLAINT
1348, I~ OO6g BSC.DOC

HAGENS I~ERMAN t, LP

1

52. Therefore, William Zirkle, William Wangler and Gary Hudson have

2 violated 18 U.S.C. § 274 by conspiring to employ and harbor over I00 illegal workers

3 per year since 1996, knowing the workers to be smuggled into this country or

4 harbored once they arrived here, through two enterprises described below--the Zirkle

5 Fruit Co. Enterprise and the Selective-Zirkle Fruit Co. Enterprise.

6

IV. THE ENTERPRISES

7 A. The Matson Fruit Company Enterprise

8

53. Defendants Roderick Matson and Daryl Matson have perpetrated the

9 Illegal Immigrant hiring Scheme through their positions Matson Fruit, a Washington

10 corporation affecting interstate commerce. The company is a RICO enterprise

11 pursuant to i 8 U.S.C. § 1961(4). Roderick Matson is an officer (president) of the

12 company and Daryl Matson is a 20% owner of the company. They both participate in

13 and conduct its affairs through the racketeering activity alleged herein, repeated and

14 continuous violations of § 274 oft he Immigration and Nationality Act.

15 B. The Zirkle Fruit Co. Enterprise

16

54. Defendants William Zirkle and William Wangler, later joined by

17 Defendant Gary Hudson, have conspired, as detailed above, to perpetrate the Illegal

18 Immigrant Hiring Scheme through their positions in Zirkle Fruit Co., a Washington

19 company affecting interstate commerce. The company is a RICO enterprise pursuant

20 to 18 U.S.C. § 1961(4). William Zirkle is president of the company. William Wangler

21 and Gary Hudson assist him in carrying out the company’s affairs through their key

22 positions and are overseen and accountable to Mr. Zirkle. At all times, Mr. Zirkle has

23 approved and ratified all of their actions detailed and described herein.

24

25

26

SECOND AMENDED CLASS ACTION 14COMPLAINT
t3ag.l 0 0o6g BSC.DOC

C. The Selective-Zirkle Fruit Co. Enterprise

55. Zirkle Fruit and Selective are an association-in-fact enterprise pursuant to

18 U.S.C. § 1961(4) by virtue of their joint purpose of providing a supplemental

stream of illegal immigrant workers for Zirkle Fruit in furtherance of the Illegal

5 Immigrant Hiring Scheme. This enterprise affects interstate commerce and enabled

6 Zirkle Fruit to employ more illegal workers than it could have employed on its own.

7 The association has been maintained by a continuous interrelationship between the

8 two companies in order to effectively recruit and employ many different illegal

9 workers over a period of months.

10

56. Plaintiffs allege Selective knowingly employed certain workers for Zirkle

11 Fruit whom Selective knew to be illegal and undocumented, and harbored these illegal

12 workers in furtherance of the Illegal Immigrant Hiring Scheme.

13 D. The Plaintiffs Are Victims of the Illegal Immigrant Hiring Scheme

!4

57. Plaintiffs, all of whom are legally authorized to be employed, have been

15 employed by Zirkle Fruit and/or Matson Fruit during the Class period at wages that

16 are substantially depressed because of the Illegal Immigrant Hiring Scheme.

17

58. Plaintiffs’ wages are below the wage rate at which a labor market

18 comprised of workers legally entitled to work - namely, one without the operation of

19 the Illegal Immigrant Hiring Scheme - would be set.

20

59. Defendants’ Illegal Immigrant Hiring Scheme, by itself, was a substantial

21 factor in causing the depressed wages about which Plaintiffs and the Class complain.

22 Had the Defendants complied with the law, and only employed legally documented

23 workers, they would have had to pay higher wages to Plaintiffs and the Class in order

24 to maintain a legal workforce.

25

60. One purpose of the Illegal Immigrant Hiring Scheme is to deprive

26 Plaintiffs and the Class of collective bargaining power. Because the Zirkle Fruit and

SECOND AMENDED CLASS ACTION -15-
COMPLAINT
13,:lg 10 0068 BSC DOC

tlAGENS I~ERNIAN LLP

1 Matson Fruit workforces are largely comprised of workers known by Defendants to be

2 illegal, those workers are beholden to Defendants. Undocumented workers will not

3 participate in collective bargaining activities because of fear of reprisal. The illegal

4 members of the workforce therefore accept low wages because they have no choice.

5 The legal members of the workforce accept the low wages with the knowledge that -

6 if they seek higher wages - they will be fired and replaced with illegal workers. In

7 this manner, Defendants’ Illegal Immigrant Hiring Scheme insures low wages for

8 Plaintiffs and the CIass and directly depresses their wages.

9

61. But for Defendants’ participation in the affairs of the enterprise and their

10 RICO violations, Zirkle Fruit and Matson Fruit would have only hired legal workers

11 and would have paid those workers increased wages. The amount of the increased

12 wages can be calculated, among other methods, by comparing the hourly rates of

13 workers performing similar skills in workforces comprised solely of legal workers.

14

COUNT I

15

FOR VIOLATIONS OF RICO

16 A. 17

Violations of 18 U.S.C. § 1962(d) (By Conspiring to Violate 18 U.S.C. §
1962(c))

62. Plaintiffs incorporate the preceding allegations as if fully set forth herein. 18

63. This claim is asserted against the individual Defendants and Selective. 19

All are "persons," as defined in 18 U.S.C. § 1961(3). 20

64. As stated above, the individual Defendants have entered into conspiracies 21

to perpetrate the Illegal Immigrant Hiring Scheme (racketeering activity) by joining 22

together to employ and harbor illegal immigrant workers, in violation of § 274 of the 23

Immigration and Nationality Act, which is made a RICO predicate offense by 18 24

25 U.S.C.§ 1961(1)(F). (Matson Fruit and Zirkle Fruit are not named as RICO

persons/Defendants in this Count.) 26

SECOND AMENDED CLASS ACTION -16COMPLAINT
134810 0068 BSC DOC

HAGENS BERMAN LLP

1

65. The conspiracies by the individual Defendants to violate 18 U.S.C. §

2 1962(c) are violations of 18 U.S.C. § 1962(d) and thereby subject each conspirator to

3 joint and several liability for all of the damage caused by all the racketeering acts

4 committed by any of the conspirators.

5 B. Violations of 18 U.S.C. § 1962(c)

6

66. In violation of 18 U.S.C. § 1962(c), Defendant Selective has committed

7 the same predicate acts identified above by committing a pattern of racketeering

8 activity through the Selective-Zirkle Fruit Co. enterprise by knowingly employing

9 illegal immigrant workers for employment at Zirkle Fruit, and thereby harboring those

10 illegal workers.

11

67. Defendants’ violations of the Immigration and Nationality Act, as

12 detailed in this Complaint, constitute a "pattern of racketeering activity" under 18

13 U.S.C. § 1961(5).

14 C. Proximate Causation

15

68. Plaintiffs and members of the Class have been damaged by reason of

16 Defendants’ RICO violations because they have been employed by Matson Fruit and

17 Zirkle Fruit at wages which were depressed as a direct result of the Illegal Immigrant

18 Hiring Scheme. Plaintiffs and members of the Class were the intended and direct

19 victims of Defendants’ RICO scheme and their injury, i.e., working at depressed

20 wages, was both intended and foreseeable. As a direct result of this Scheme,

21 Defendants were able to profit.

22

69. Defendants’ Illegal Immigrant Hiring Scheme, by itself, was a substantial

23 factor in causing the depressed wages about which Plaintiffs and the Class complain.

24

25

26

SECOND AMENDED CLASS ACTION - 17-
COMPLAINT
134g 10 0068 B$C.DOC

COUNT II

CIVIL CONSPIRACY

70. Plaintiffs incorporate the preceding allegations as if fully set forth herein,

with the exception of¶¶ 8, 15, 29-44, 53, and 62-69.

5

71. This claim is asserted against Defendants Zirkle Fruit and Selective, on

6 behalf of those Class members who worked at Zirkle during the time period in which 7 Selective procured workers for Zirkle.

8

72. Zirkle has entered into a conspiracy with Selective to violate the

9 Immigration and Nationality Act.

10

73. This conspiracy is a substantial factor in the depression of the wages of

11 Plaintiffs and Class members who worked at Zirkle during the time period in which

12 Selective procured workers for Zirkle.

13

74. Defendants’ conspiracy to violate the Immigration and Nationality Act

14 also violates Washington common law.

15

75. As a direct, foreseeable, intended and proximate cause of the conspiracy,

16 Plaintiffs and Class members employed by Zirkle wilt continue to suffer substantial

17 injuries and damages.

18

V. PRAYER FOR RELIEF

19

76. Plaintiffs demand judgment and other relief, as follows:

20

77. Certification of the Class pursuant to Fed. R. Civ. P. 23(b)(3);

21

78. Judgment in an amount equal to three times the damage caused to the

22 Class by the Defendants’ racketeering activity/the Illegal Immigrant Hiring Scheme,

23 pursuant to Count I and 18 U.S.C. § 1964(c);

24

79. Judgment in an amount equal to the damage caused to those putative

25 Class members damaged by the conspiracy to violate the Immigration and Nationality

26 Act/the Illegal Immigrant Hiring Scheme, pursuant to Count H;

SECOND AMENDED CLASS ACTION-18COMPLAINT

}|AGENS BERMAN LLI?

1

80. For appropriate attorney’s fees, pursuant to 18 U.S.C. § 1964;

2

81. For the costs of this action;

3

82. For any other relief the Court deems just and proper.

4

DATED: November 5, 2003

5
HAGENS BERMAN LLP
6

7

8

BYst~ve W. Berman, WSBA#12536

Andrew M. Volk, WSBA #27639

9

1301 Fifkla Avenue, Suite 2900

Seattle, WA 98101

10

(206) 623-7292

11

Howard W. Foster

JOHNSON & BELL, LTD.

12

55 E. Monroe St., Suite 4100

Chicago, IL 60603

13

(312) 372-0770

14

SMART LAW OFFICES, P.S.

Michael Connell, WSBA #28978

15

501 N. 2nd St.

P.O. Box 228

16

Yakima, WA 98907

(509) 573-3333
17

18

Attorneys for Plaintiffs

19

20

21

22

23

24

25

26

SECOND AMENDED CLASS ACTION - 19-
COMPLAINT
1348 10 0068 BSC~DOC

IIAGENS gERMAN LLP

1

DECLARATION OF SERVICE

2

I, Lynn Brammeier, declare under penalty of perjury under the laws of the State

3 of Washington that the following facts are true and correct:

4

I am a citizen of the United States, over the age of 18 years, and not a party to

5 or interested in the within-entitled cause. I am an employee of the law firm Hagens
6 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,
7 Washington 98101.
8
On November 6, 2003 I caused an original and one copy of the following
9
document to be hand delivered for filing with the Clerk of the District Court, Eastern
10
District of Washington, Yakima, WA., 99201 on November 6, 2003:
11
I also caused a copy of the following document to be served on counsel of
12
record in the manner indicated below:
13

14

NOTICE OF FILING SECOND AMENDED CLASS ACTION

15

COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED

16

AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW

17

CLAIM and DECLARATION OF SERVICE ATTACHED

18

19
Brendan V. Monahan 20 VELIKANJE, MOORE & SHORE, P.S.
21 405 East Lincoln Ave., P.O. Box 22550 Yakima, WA 98907
22 Attorneys for Defendant Selective
23 Employment Agency, Inc.
( X ) U.S. MAIL 24 ( ) FAX
25 ( ) MESSENGER ( ) OVERNIGHT MAIL
26

DECLARATION OF SERVICE
1348 10 0013 B~C DOC

-1-

Ryan M. Edgley EDLEY & BEATTIE, P.S. 201 East D Street Yakima, WA 98901 Attorneys for Defendants Matson Fruit Co.
( X ) U.S. MAIL 6 ( ) FAX
( ) MESSENGER 7 ( ) OVERNIGHT MAIL
8
Terry Schmalz 9 Lawrence E. Martin 10 Halverson & Applegate, P.S.
311 N. 4th St. 11 P.O. Box 22730 12 Yakima, WA 98901
Attorneys for Defendants Matson Fruit Co.
13
( X ) U.S. MAIL 14 ( ) FAX 15 ( ) MESSENGER
( ) OVERNIGHT MAIL
16
17
Walter G. Meyer I8 Meyer, Fluegge & Tenney, P.S. t9 230 South Second Street
P.O. Box 22680 20 Yakilna, WA 98907 21 Attorneys for Defendant Zirkle Fruit Co.
( X ) U,S. MAIL 22 ( ) FAX 23 ( ) MESSENOER 24 ( ) OVERNIGHT MAIL
25
26

DECLARATION OF SERVICE
1346 $0 0013 BSC DOC

-2-

1 James A. Smith, Jr.

2 Alexander A. Baehr Smith & Hennessey PLLC
3 316 Occidental Ave., South, Suite 500

4 Seattle, WA 98104
( X ) U.S. MAIL 5 ( ) FAX

6 ( ) MESSENGER ( ) OVERNIGHT MAIL
7

8

Howard W. Foster JOHNSON & BELL, LTD.

9

55 East Monroe Street Suite 4100

10 Chicago, IL 60603

( X ) U.S. MAIL

11 ( ) FAX
( ) M SSENGER

12 ( ) OVERNIGHT MAIL

13 Michael Connell, WSBA #28978

t4

Smart 501 N.

2Lna°wStO. ffices,

P.S.

15

P.O. Box 228 Yakima, WA 98907

16 ( ) U.S. MAIL ( )FAX

17 ( ) MESSENGER ( X ) OVERNIGHT MAIL
18

19

Executed on November 6, 2003, in Seattle, Washington.

20

21

22

23

24

25

26

DECLARATION OF SERVICE

-3-

134810 0013 BSC.DOC

 </s> F~STERUN .D~[S. ~OfRI~ICNClT

COURT O~ WASHINGION

1

Ryan M. Edgley

Edgley & Beattie

2

201 East "D" Street

Yakima, WA 98901

3

Telephone (509) 248-1740

jAMES R. LARSEN, CLERK OEPUfY
Honorable Fred Van Sickle

4

Larry Martin

Halverson & Applegate, P.S.

5

P.O. Box 22730

Yakima, WA 98907-2715

6

Telephone (509) 575 - 6611

7

Attorneys for the Matson Defendants

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF WASHINGTON

10

OLIVIA MENDOZA, JUANA

11

MENDIOLA, and VICTOR SANCHEZ,

Individually and on behalf of all others

12

similarly situated,

NO. CY-00-3024-FVS

13

Plaintiffs,

14

VS.

15

ZIRKLE FRUIT CO., a Washington

ANSWER OF DEFENDANTS

corporation, SELECTIVE EMPLOYMENT

RODERICK MATSON AND

16

AGENCY, INC., a Washington corporation,

DARYL MATSON TO THE

DARYL MATSON, RODERICK

SECOND AMENDED CLASS

17

MATSON, WILLIAM ZIRKLE, GARY

ACTION COMPLAINT

HUDSON, and WILLIAM WANGLER,

I8

Defendants.

19

20

Defendants Roderick Matson and Daryl Matson submit this Answer to

21

the plaintiffs’ Second Amended Class Action Complaint, and respond to the

22
allegations therein as follows:
23

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

1. Deny this action may be appropriately pursued on behalf of the

2

putative class described in Paragraph No. 1 of the Complaint.

3
2. Admit Matson and Zirkle are corporations engaged in the
4
business of growing, warehousing, packing and selling apples and other types
5

6

of produce. The Matson defendants deny every other allegation included in

7

Paragraph No. 2 of the Complaint.

8

3. Deny every allegation included in Paragraph No. 3 of the

9

Complaint.

I0
4. Deny the allegation stated in Paragraph No. 4 of the Complaint.
11
Deny the allegations stated in Paragraph No. 5 of the Complaint,
12

13

Deny the allegations stated in Paragraph No. 6 of the Complaint.

14

Deny the allegations stated in Paragraph No. 7 of the Complaint.

D

15

Admit the allegations stated in Paragraph No. 8 of the

16

Complaint.

17
Do not have sufficient information to form a belief as to the truth
18
of the allegations stated in Paragraph No. 9 of the Complaint and, therefore,
19

20

deny said allegations.

21

10. Do not have sufficient information to form a belief as to the truth

22

of the allegations stated in Paragraph No. 10 of the Complaint and, therefore,

23

deny said allegations.

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 2

EDGLEY & BEATTIE, P.S. 201 East "’D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

11. Admit that each of the plaintiffs was employed at some time by

2

Matson, Zirkle, or Selective, and that the wage or piece rate for such work

3
was set by one of the defendants. The Matson defendants deny every other
4
allegation stated in Paragraph No. 11 of the Complaint.
5

6

12. Admit that Zirkle Fruit Co. is a Washington corporation, with its

7

principal place of business located in Selah, WA. The Matson defendants

8

deny every other allegation stated in Paragraph No. 12 of the Complaint.

9

13. Admit William Zirkle is the President of Zirkle Fruit Co. The

10
Matson defendants deny every other allegation stated in Paragraph No. 13 of
11
the Complaint.
12

13

14. Deny the allegations stated in Paragraph No. 14 of the

14

Complaint.

15

15. Admit Roderick Matson is the President of Matson Fruit Co., a

16

citizen and resident of the state of Washington, and a resident of this judicial

17
district. Admit Daryl Matson is a principal in Matson Fruit Co. and the
18
company’s director of human resources, a citizen and resident of the state of
19

20

Washington, and a resident of this judicial district. The Matson defendants

2t

deny every other allegation stated in Paragraph No. 15 of the Complaint.

22

16. Admit Selective Employment Agency is a Washington

23

corporation, with its principal place of business located in Yakima, WA.

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT

EDGLEY & BEA’F~IE, P.S. 201 East "D" Street
Yaktma, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-! 573

1

17. Admits this court has subject matter jurisdiction over Count I of

2

the Complaint alleging violation of the Racketeer Influenced and Corrupt

3
Organizations Act. The Matson defendants deny that it would be appropriate
4
for the court to exercise supplemental jurisdiction over Count II of the
5

6

Complaint alleging violation of state common law.

7

18. Denies the occurrence of"illegal acts" alleged in Paragraph No.

8

18 of the Complaint. The Matson defendants admit the defendants and at

9

least one of the plaintiffs reside and are domiciled in the Eastern District of

10
Washington, and that venue is properly within this District.
11
19. Deny this action may be appropriately pursued as a class action,
12

13

or on behalf of the putative class described in Paragraph No. 19 of the

14

Complaint, pursuant to Fed. R. Civ. P. 23(b)(2) or (b)(3).

15

20. Do not have sufficient information to form a belief as to the truth

16

of the allegations stated in Paragraph No. 20 of the Complaint and, therefore,

17
deny said allegations.
18
21. Deny every allegation stated in Paragraph Nos. 21 (a) through
19

20

21(d) of the Complaint.

21

22. Deny every allegation stated in Paragraph No. 22 of the

22

Complaint.

23

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 4

EDGLEY & BEATI’IE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

23. Do not have sufficient information to form a belief as to the truth

2

of the allegations stated in Paragraph No. 23 of the Complaint and, therefore,

3
deny said allegations.
4
24. Deny every allegation stated in Paragraph No. 24, and in
5

6

Paragraph Nos. 24(a) through 24(d) of the Complaint.

7

25. Deny every allegation stated in Paragraph No. 25 of the

8

Complaint.

9

26. Admit the allegations stated in Paragraph No. 26 of the

10
Complaint.
11
27. The Matson defendants do not have sufficient information to
12

13

form a belief as to the truth of the allegations that "the industry now generates

14

over $1 billion" or that "many of these workers live in poverty" and,

15

therefore, deny said allegations. The Matson defendants admit that many

16

operations primarily require manual labor, but deny the allegation that said

17
operations do not involve the workers’ application of skills. And the Matson
18
defendants admit there are more than 15,000 fruit packers and 30,000 pickers
19

20

of orchard fruit.

21

28. Admit they own and have certain management authority for

22

Matson Fruit Co., and further admit that they are motivated to avoid excessive

23

labor costs. The Matson defendants also admit the work in the fruit industry

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 5

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

has attracted many workers of Mexican citizenship. The Matson defendants

2

deny that they keep labor costs "as low as possible," and have insufficient

3
information to form a belief as to the truth of the allegations that "many" of
4
the "Mexican nationals are illegal immigrants who have been smuggled into
5

6

the U.S. and/or are harbored in the U.S. by relatives, friends and employers"

7

and, therefore, deny said allegations. The Matson defendants deny every

8

other allegation stated in Paragraph No. 28 of the Complaint.

9

29. Admit that Roderick Matson is president and general manager of

10
Matson Fruit Co., and that the company does not make copies of the
11
documents workers present to demonstrate employment eligibility at the time
12

13

of hire. The Matson defendants deny every other allegation stated in

14

Paragraph No. 29 of the Complaint.

15

30. Admit the I.N.S. did an audit of employment eligibility of

16

Matson Fruit Co. employees in 1990. The Matson defendants deny every

17
other allegation stated in Paragraph No. 30 of the Complaint.
18
31. Deny the allegations stated in Paragraph No. 3 t of the
19

20

Complaint.

21

32. Deny the allegations stated in Paragraph No. 32 of the

22

Complaint.

23

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT

EI)GLEY & BEAT£1E, P.S. 201 East "D" Street Yaklma, WA 98901
Phone: (509) 248-1740
Fax: (509) 2Zl8-1573

1

33. Admit Matson Fruit Co. had the I-9 Forms maintained for all

2

employees audited by the INS as part of "Operation Snowbird," and that

3
Matson Fruit Co. was instructed by the INS to terminate workers who the INS
4
determined (sometimes erroneously) to be aliens unauthorized to work in the
5

6

United States. And further admit that supervisor Gloria Salas was one of the

7

employees Matson Fruit Co. was instructed to terminate, and whom the

8

company did promptly terminate. The Matson defendants deny every other

9

allegation included in Paragraph No. 33 of the Complaint.

10
34. Admit Daryl Matson became responsible for directing human
11
resources at Matson Fruit Co. during "Operation Snowbird." The Matson
12

13

defendants deny every other allegation stated in Paragraph No. 34 of the

14 Complaint.

15

35. Deny every allegation stated in Paragraph No. 35 of the

16

Complaint.

17
36. Admit that they have not instructed persons who conduct hiring
18
to copy employment eligibility documents presented by workers, but deny the
19

20 allegation that they have refused any request that they do so. The Matson

21 defendants deny every other allegation stated in Paragraph No. 36 of the

22 Complaint.
23

ANSWER OF THE MATSON
DEFENDANTS TO THE SECOND AMENDED COMPLAINT 7

EDGLEY & BEATTIE, P.S. 20l East "D" Street Yakima, WA 9890t
Phone: (509) 248-1740 Fax: (509) 248-1573

1

Deny every allegation stated in Paragraph No. 37 of the

2

Complaint.

3
38, Admit Matson Fruit Co. entered into an agreement with Selective
4
Employment Agency for the provision of packinghouse workers in 2000, and
5

6

that Daryl Matson negotiated and/or supervised the negotiation of the

7

agreement on behalf of Matson Fruit Co. And further admit workers were

8

employed by Selective pursuant to the agreement and loaned to Matson Fruit

9

Co. in return for payment of a fee. The Matson defendants deny every other

10
allegation stated in Paragraph No. 38 of the Complaint.
tl
39. Deny that Matson Fruit Co.’s request that Selective verify Social
12

13

Security Numbers of workers provided to Matson Fruit Co. was made after

14 the plaintiffs filed a lawsuit. The Matson defendants contend the request was

15

made to Selective, and honored by Selective, before any workers were

16

provided. The Matson defendants further deny that any workers provided by

17
Selective were later determined to have provided a non-matching Social
18
Security Number.
19

20

40. Deny the allegations stated in Paragraph No. 40 of the

21

Complaint.

22

41. Paragraph No. 41 of the Complaint does not state any factual

23

allegation, and is therefore denied.

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740
Fax: (509) 248-1573

1

42. Deny every allegation stated in Paragraph No. 42 of the

2

Complaint.

3
43. Deny every factual allegation stated in Paragraph No. 43 of the
4
Complaint.
5

6

44. Deny every allegation stated in Paragraph No. 44 of the

7

Complaint.

8

45. The answers of the Matson defendants to Paragraphs 45 through

9

52 of the Complaint are based on information and belief arising out of the

10
previous deposition testimony of William. Zirkle, William Wangler, Gary
11
Hudson and Juana Castaneda. Based on that information and belief, the
12

13

Matson defendants admit William Zirkle is President and principal owner of

14 Zirkle Fruit Co., and an orchardist. The Matson defendants deny every other

15 allegation stated in Paragraph No. 45 of the Complaint.

16

46. Deny every allegation stated in Paragraph No. 46 of the

17
Complaint.
18
47. Admit Juana Castaneda testified during her deposition that she
19

20 has, since 2000, completed the employer section of the I-9 Form for some of

21 the workers hired at Zirkle Fruit Co.’s packinghouse, and that she initially

22 obtained employment at Zirkle Fruit Co. in 1992 using a "fake" Social

23

Security Card and Alien Registration Card. On information and belief, based

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 9

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

on said deposition testimony, the Matson defendants contend Ms. Castaneda

2

obtained lawful resident status in 1992 or 1993 and deny every other

3
allegation stated in Paragraph No. 47 of the Complaint.
4
48. Admit the I.N.S. audited Zirkle Fruit Co.’s I-9 Forms in 1997
5

6

and concluded some number of workers were not eligible to be employed.

7

On information and belief, the Matson defendants further admit the I.N.S.

8

requested and received permission from Zirkle Fruit Co. to enter company

9

premises and apprehended several workers who were not eligible to remain in

10
the United States. The Matson defendants deny every other allegation stated
11
in Paragraph No. 48 of the Complaint.
12

13

49. Admits Zirkle Fruit Co. hired Gary Hudson to be human

14 resources manager sometime after 1997. The Matson defendants deny every

15 other allegation stated in Paragraph No. 49 of the Complaint.

16

50. Admits Gary Hudson, on behalf of Zirkle Fruit Co., negotiated

17
an agreement with Selective Employment Agency to provide temporary
18
packinghouse workers to Zirkle Fruit Co. And further admit, on information
19

20

and belief, that per the agreement Selective was to examine the workers’

21 employment eligibility documents, employ the workers, and loan the workers

22 to Zirkle Fruit Co. on a temporary basis in return for Zirkle’s payment of a
23

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 10

EDGLEY & BEA~fTIE, P.S. 201 East "D" Street
Yakirna, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

fee. The Matson defendants deny every other allegation stated in Paragraph

2

No. 50 of the Complaint.

3 51. Admit Mr. Hudson requested, after the plaintiffs filed this
4
lawsuit, that Selective Employment verify the Social Security Numbers of 5

6

workers Selective was providing to Zirkle Fruit Co., and that some number of

7

workers were determined to have provided "non-matching" Social Security

8

Numbers. The Matson defendants deny every other allegation stated in

9

Paragraph No. 51 of the Complaint.

10 52. Deny every allegation stated in Paragraph No. 52 of the
11
Complaint. 12

13

53. Admit Roderick Matson is an officer (president) of Matson Fruit

14

Co., which is a Washington corporation affecting interstate commerce. And

15

further admit Daryl Matson is a 20% owner of Matson Fruit Co. The Matson

16

defendants deny every other allegation stated in Paragraph No. 53 of the

17 Complaint.
18
54. Admit William Zirkle is the president of Zirkle Fruit Co., which 19

20

is a Washington corporation affecting interstate commerce. And further

21

admit William Wangler and Gary Hudson are accountable to William Zirkle

22

and generally act pursuant to authority delegated to them by William Zirkle.

23

ANSWER OF THE MATSON DEFENDANTS TO THE
SECOND AMENDED COMPLAINT 11

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1

The Matson defendants deny every other allegation stated in Paragraph No.

2

54 of the Complaint.

3
55. On information and belief, based on previous deposition
4
testimony, deny every allegation stated in Paragraph No. 55 of the Complaint.
5

6

56. On information and belief, deny every allegation stated in

7

Paragraph No. 56 of the Complaint.

8

57. Deny the allegations stated in Paragraph No. 57 of the

9

Complaint.

10
58. Deny the allegations stated in Paragraph No. 58 of the
11
Complaint.
12

13

59. Deny the allegations stated in Paragraph No. 59 of the

14 Complaint.

15

60. Deny every allegation stated in Paragraph No. 60 of the

16

Complaint.

17
61. Deny every allegation stated in Paragraph No. 61 of the
18
Complaint.
19

20

62. The Matson defendants incorporate their preceding responses to

21

Paragraphs Nos. 1 through 61 of the Complaint as if fully set forth herein.

22

63. Admit the individual defendants and Selective Employment

23

Agency are "persons" within the meaning of 18 U.S.C. § 1961 (3). The

ANSWER OF THE MATSON
DEFENDANTS TO THE SECOND AMENDED COMPLAINT 12

EDGLEY & BEATI?IE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740
Fax: (509) 248-1573

1

Matson defendants deny every other allegation stated in Paragraph No. 63 of

2

the Complaint.

3
64. Deny every allegation stated in Paragraph No. 64 of the
4
Complaint.
5

6

65. Deny every allegation stated in Paragraph No. 65 of the

7

Complaint.

8

66. Based on available information and belief, deny every allegation

9

stated in Paragraph No. 66 of the Complaint.

10
67. Based on available information and belief, deny every allegation
11
stated in Paragraph No. 67 of the Complaint.
12

13

68. Deny every allegation stated in Paragraph No. 68 of the

14 Complaint.

15

69. Deny every allegation stated in Paragraph No. 69 of the

16

Complaint.

17
70-75. Paragraphs Nos. 70 through 75 of the Complaint do not purport
18
to stated a claim against, nor a conspiracy involving, the Matson defendants
/9

20

and, therefore, the Matson defendants do not respond to said allegations.

21

FURTHER, AS AFFIRMATIVE DEFENSES, the Matson defendants

22

contend the claims asserted by the plaintiffs are barred by the applicable

23

ANSWER OF THE MATSON DEFENDANTS TO TIlE SECOND AMENDED COMPLAINT 13

EDGLEY & BEATTIE, P.S, 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740
Fax: (509) 248-1573

1

statutes of limitation, estoppel, waiver, consent and payment; and that the

2

plaintiffs have failed to mitigate their damages.

3
HAVING ANSWERED the plaintiffs’ Complaint, the Matson
4
defendants request the court dismiss the plaintiffs’ Complaint, with prejudice;
5

6

and asks that the court award the Matson defendants their costs and

7

reasonable attorney fees incurred in this matter.

8

RESPECTFULLY SUBMITTED this 25tla day of November, 2003.

9

10

11

12

13
Attorneys for Defendants Matson.
14

15

16

17

~lve Martin (WSBA # 18743) rson & Applegate, P.S.

18

Attorneys for Defendants Matson

19

2O

21

22

23

ANSWER OF THE MATSON DEFENDANTS TO THE SECOND AMENDED COMPLAINT 14

EDGLEY & BEATTIE, P.S. 201 East "D" Street
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1 Ryan M. Edgley
Edgley & Beat-tie 2 201 East "D" Street
Yakima, WA 98901 3 Telephone (509) 248-1740

Honorable Fred Van Sickle

4 Larry Martin Halverson & Applegate, P.S.
5 P.O. Box 22730
Yakima, WA 98907-2715 6 Telephone (509) 575 - 66I 1

7 Attorneys for the Matson Defendants

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF WASHINGTON

10
OLIVIA MENDOZA, JUANA 11 MENDIOLA, and VICTOR SANCHEZ,
Individually and on behalf of all others 12 similarly situated,

NO. CY-00-3024-FVS

13

Plait~tiffs, )

)

14 VS.

)

)

15 ZIRKLE FRUIT CO., a Washington

)

corporation, SELECTIVE EMPLOYMENT) 16 AGENCY, INC., a Washington colLporation),

DARYL MATSON, RODERICK

)

17 MATSON, WILLIAM ZIRKLE, GARY )

HUDSON, and WILLIAM WANGLER, )

18

)

De~ndams. )

19

,)

CERTIFICATE OF MAILING

20

The undersigned certifies that she is a citizen of the United States and over the age of 18

21 years; that on the 3’~ day of December, 2003, she deposited in the United States mail at Yakima,

22 Washington, a properly stamped and addressed envelope containing a copy of the Answer of

23

CERTIFICATE OF MAILING - 1

EDGLEY & BEATTIE, P.S. 201 East "D" Street Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1 Defendants Roderick Matson and Daryl Matson to the Second Amended Class Action Complaint, 2 to:

3

STEVE W. BERMAN

Hagens Berrnan LLP

4

1301 Fifth Ave., Suite 2900

Seattle, WA 98101

5

HOWARD W. FOSTER

6

Johnson & Bell, Ltd.

55 E. Monroe St., 41st Floor

7

Chicago, IL 60604

8

BRENDAN MONAHAN

Velikanje, Moore & Shore

9

P. O. Box 22550

Yakima, WA 98907 10

MARK WATSON

11

Meyer Fluegge & Tenney

230 S. Second Street

12

Yakima, WA 98901

13

14

15

16

17

18

19

20

21

22

23

CERTIFICATE OF MAILING - 2

EDGLE¥ & BEA~flE, 201 East ’°D" Street Yakirna, WA 98901
Pl~one: (51)9) 248-|740 Fax: (509) 248-|573

 </s> 1

2

Mark D. Watson

3

MEYER, FLUEGGE & TENNEY, P.S. P.O. Box 22680

4

Yakima, WA 98907-2680

(509) 575-8500

5

Attorneys for Defendants Zirkle Fruit Company,

William Zirkle, Gary Hudson and William Wangler 6

F~L~ IN THE
U.S. DISTRICT COURT EAS’[ERN DISTBICT OF WASHINGTON
DEC 0 8 2003
JAMES R. LARSEN, CLERK _ DEPUTY
YAKII’3.A, WASHINGTON

7

8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

9

AT YAKIMA

10

OLWIA MENDOZA, JUANA

)

11

MENDIOLA andVICTOR SANCHEZ, ) NO. CY-00-3024-FVS

12

individually and on behalf of all others )

similarly situated,

) ANSWER OF DEFENDANTS ZIRKLE FRUIT

13

) COMPANY, WILLIAM ZIRKLE, GARY

Plaintiffs,

) HUDSON, AND WILLIAM WANGLER TO

14

go

) THE SECOND AMENDED CLASS-ACTION

15

ZIRKLE FRUIT CO., a Washington

) COMPLAINT )

16 corporation, SELECTIVE

)

EMPLOYMENT AGENCY, INC., a )

17 Washington corporation, DARYL

)

18

MATSON, RODERICK MATSON,

)

WILLIAM ZIRKLE, GARY HUDSON )

19 and WILLIAM WANGLER,

)

)

20

Defendants.

)

21

)

22

COME NOW Defendants Zirkle Fruit Company, a Washington corporation, William Zirkle,

23 Gary Hudson, and William Wangler and in answer to Plaintiffs’ Second Amended Class-Action

24

Complaint, allege and state as follows:

25 1. Defendants deny the allegations of Paragraph 1, and specifically deny that this is a proper
26

27

class-action lawsuit.

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF
MEYER; FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 1

230 South Second Street / P.O. Box 22680 Yakima, Washington 98907 Tel (509)575-8500

Fax (509)575-4676

1 2. Defendants admit that Matson and Zirkle are corporations engaged in the business of growing,
2

3

warehousing, packing and selling apples and other types of produce, but deny the remainder of the

4

allegations of Paragraph 2.

5

3. Defendants deny the allegations of Paragraph 3.

6

4. Defendants deny the allegations of Paragraph 4.

7
5. Defendants deny the allegations of Paragraph 5. 8

9

6. Defendants deny the allegations of Paragraph 6.

10

7. Defendants deny the allegations of Paragraph 7.

11

8. Defendants are without knowledge or information sufficient to form a belief as to the truth

12

of the allegations contained in Paragraph 8 and they are therefore denied.

13
9. Defendants admit the allegations of Paragraph 9 insofar as it alleges that Plaintiff Juana 14

15

Mendiola was employed by Selective on an hourly basis to work at Zirkle Fruit at the v,/arehouse only

16 in late 1999 and early 2000. Defendants are without knowledge or information sufficient to form a belief

17 as to the truth of the remainder of the allegations contained in Paragraph 9 and they are therefore denied.

18 10. Defendants admit that Victor Sanchez was employed by Zirkle Fruit in its orchards as an

19 hourly or piece rate worker last .working in 2000, and that as far as Defendants know he was legally
20

21

authorized to be employed in the U.S. at the time he was employed by Zirkle Fruit.

22

11. Defendants admit that each of the plaintiffs were employed at some time by Matson, Zirkle

23 or Selective at rates set by one of the defendants. Defendants deny the remainder of the allegations
24 contained in Paragraph 11.
25 12. Defendants admit that Zirkle Fruit Company is a Washington corporation with its principal
26
27 place of business located in Selah, Washington. Defendants admit that Zirkle Fruit is named as a

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE, G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 2

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S. 230 South Second Street / P.O. Box 22680 Yakima, Washington 98907 Tel (509)575-8500 Fax (509)575-4676

1 defendant only in Count II (for Civil Conspiracy) of the Second Amended Class-Action Complaint, but
2

3

Defendants deny the allegations in Count II.

4

13. Defendants admit that William Zirkle is the president of Zirkle Fruit Company. Defendants

5

deny the remainder of the allegations of Paragraph 13.

6

14.. Defendants deny the allegations of Paragraph 14.

7 15. Defendants admit that Roderick Matson is the president of Matson Fruit Company, is a
8

9

citizen and resident of the State of Washington, and is a resident of this judicial district. Defendants

10 admit that Daryl Matson is a principal in Matson Fruit Company and the company’s director of human

11 resources, is a citizen and resident of the State of Washington, and a resident of this judicial district.

12 Defendants deny the remainder of the allegations of Paragraph 15. 16. Defendants admit Selective

13
Employment Agency has its principal place of business located in Yakima, Washington, but are without 14

15

knowledge or information sufficient to form a belief as to the truth of the remainder of ihe allegations

16 contained in Paragraph 16 as it relates to the legal eniity status of Selective.

17

17. Defendants are without knowledge or information sufficient to form a belief as to the truth

18

of the allegations contained in Paragraph 17 relating to subject matter jurisdiction and/or they are denied.

19 18. Defendants are without knowledge or information sufficient to form a belief as to the truth
20

21

of the allegations contained in Paragraph 18 relating to venue and/or they are denied.

22

19. Defendants deny the allegations of Paragraph 19.

23

20. Defendants deny the allegations of Paragraph 20.

24 21. Defendants deny the allegations of Paragraph 21.

25
22. Defendants deny the allegations of Paragraph 22. 26

27

23. Defendants deny the allegations of Paragraph 23.

28~

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE, G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACT!ON COMPLAINT- 3

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S. 230 South Second Street t P,O. Box 22680 Yakima, Washington 98907 Td (509)~75-8500 F~x (509)575-4676

1 24. Defendants deny the allegations of Paragraph 24.
2

3

25. Defendants deny the allegations of Paragraph 25.

4

26. Defendants admit that Eastern Washington is famous for its fruit industry and produces fruit

5 recognized for its quality throughout the United States and many foreign countries. Defendants are

6

without knowledge or information sufficient to form a belief as to the truth of the remainder of the

7 allegations contained in Paragraph 26, and/or they are denied.
8

9

27. Defendants admit that many fruit picking and packing operations require manual labor.

10 Defendants are without knowledge or information sufficient to form a belief as to the truth of the

11 remainder of the allegations contained in Paragraph 27 and/or they are denied.

12 28. Defendants admit that as to the Zirkle Fruit Company operations, Defendants William Zirkle,
13 William Wangler, and Gary Hudson have at different times had differing and varying management
14

15

responsibilities relating to some aspects, but not all, of Zirkle Fruit Company’s orchard or ]gacking house

16 operations. Defendants deny that Defendants William Zirkle, William W£ngler or Gary Hudson

17 individually own Zirkle Fruit Company’s orchard operations or packing houses. Defendants admit that

18 due to a variety of complex social and economic factors, the fruit industry has attracted many workers

19
of Mexican citizenship. Defendants are without knowledge or information sufficient to form a belief 20

21

as to the truth of the remainder of the allegations contained in Paragraph 28, and/or they are denied.

22

29. Defendants are without knowledge or information sufficient to form a belief as to the truth

23 of the allegations contained in Paragraph 29 and/or they are denied.
24 30. Defendants are without knowledge or information sufficient to form a belief as to the truth
25 of the allegations contained in Paragraph 30 and/or they are denied.
26

27

28

ANSWER OF DEFS. ZIRNLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF MEYER, FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 4

230 South Second Slxeet / P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1 31. Defendants are without knowledge or information sufficient to form a belief as to the truth
2 of the allegations contained in Paragraph 31 and/or they are denied.
3

4

32. Defendants are without knowledge or information sufficient to form a belief as to the truth

5

of the allegations contained in Paragraph 32 and/or they are denied.

6

33.. Defendants are without knowledge or information sufficient to form a belief as to the truth

7 of the allegations contained in Paragraph 33 and/or they are denied.
8

34. Defendants ’are without knowledge or information sufficient to form a belief as to the truth 9

10 of the allegations contained in Paragraph 34 and/or they are denied.

11

35. Defendants are without knowledge or information sufficient to form a belief as to the truth

12

of the allegations contained in Paragraph 35 and/or they are denied.

13 36. Defendants are without knowledge or information sufficient to form a belief as to the truth
14

15

of the allegations contained in Paragraph 36 and/or they are denied.

16

37. Defendants are without knowledge or information sufficient to form a belief as to the truth

17 of the allegations contained in Paragraph 37 and/or they are denied.

18

38. Defendants are without knowledge or information sufficient to form a belief as to the truth

19 of the allegations Contained in Paragraph,38 and/or they are denied.
20

21

39. Defendants are without knowledge or information sufficient to form a belief as to the truth

22 of the allegations contained in Paragraph 39 and/or they are denied.

23

40. Defendants are without knowledge or information sufficient to form a belief as to the truth

24 of the allegations contained in Paragraph 29 and/or they are denied.

25
41. Defendants deny the allegations of Paragraph 41. The provisions and correct cite of the 26

27

statute speaks for itself.

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF MEYER, FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 5

230 South Second Slreet / P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500

Fax (509)575-4676

1 42. Defendants are without knowledge or information sufficient to form a belief as to the truth
2 of the allegations contained in Paragraph 42 and/or they are denied.
3

4

43. Defendants are without knowledge or information sufficient to form a belief as to the truth

5

of the allegations contained in Paragraph 43 and/or they are denied.

6

44.. Defendants are without knowledge or information sufficient to form a belief as to the truth

7 of the allegations contained in Paragraph 44 and/or they are denied.
8
45. Defendants deny the allegations of Paragraph 45. 9

10

46. Defendants deny the allegations of Paragraph 46.

11

47. Defendants admit Juana Castenada testified in deposition that since 2000 she has had

12

occasion to complete the employer section of the I-9 form for some of the workers hired at the Zirkle

13 Fruit Company packing house, that she initially obtained employment at Zirkle Fruit Company in 1992
14

using invalid documentation without Zirkle Fruit Company’s knowledge, but that she bbtained valid 15

16 documentation in 1993. Defendants deny the remainder of the allegations contained in Paragraph 47.

17

48. Defendants admit that in 1997 the INS audited some of Zirkle Fruit Company’s I-9 forms

18

and concluded that some of the work documentation which had been presented was not valid.

19 Defendants deny there was any INS "raid," but admit that the INS requested and received permission and
20

21

cooperation from Zirkle Fruit Company to enter company premises and that individuals may have been

22 apprehended. Defendants are without knowledge or information sufficient to form a belief as to whether

23 or not any such individuals were actually deported. Defendants deny the remainder of the allegations

24

contained in Paragraph 48.

25 49. Defendants admit that Zirkle Fruit Company hired Gary Hudson to be human resources
26

27 manager in 1998. Defendants deny the remainder of the allegations contained in Paragraph 49.

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF MEYER, FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 6

230 South Second Street/P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500

Fax (509)575-4676

1 50. Defendants admit that Mr. Hudson was involved in the decision by Zirkle Fruit Company
2 to enter into an agreement with Selective to furnish properly documented, legal warehouse workers to
3
4 Zirkle Fruit Company on a temporary and/or "as needed" basis as provided in the agreement. These

5 workers were hired by Selective as Selective employees, with Zirkle paying Selective for this service.

6

Defendants. deny the remainder of the allegations contained in Paragraph 50.

7 51. Defendants admit that after this lawsuit was filed Mr. Hudson first became informed that
8 Selective was not doing Social Security verification as was being done by Zirkle Fruit Company at the
9

10 Zirkle Fruit Company warehouse, that Mr. Hudson then requested Selective to do such verification, and

11 that Selective subsequently reported that some of the Social Security numbers reportedly did not match.

12 Defendants deny the remainder of the allegations contained in Paragraph 51.
13 52. Defendants deny the allegations of Paragraph 52.
14 53. Defendants are without knowledge or information sufficient to form a beliefas to the truth
15
16 of the allegations contained in Paragraph 53 and/or they are denied.

17

54. Defendants deny the allegations of Paragraph 54.

18

55-61. Defendants deny the allegations of Paragraphs 55-61.

19 62. Defendants incorporate their preceding responses to Paragraphs 1-61 in response to the
20 allegations of Paragraph 62.
21

22

63. Defendants admit that the individual defendants are "persons" within the meaning of 18 USC

23 § 1961(3). Defendants are without knowledge or information sufficient to form a belief as to the truth

24 of the remainder of the allegations contained in Paragraph 63 and/or they are denied.
25 64-69. Defendants deny the allegations of Paragraphs 64-69.
26

27

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE, G. HUDSON & W. WANGLER TO SECOND AMENDED
CLASS-ACTION COMPLAINT- 7

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S. 230 South Second Street / P.O. Box 22680 Yakima, Washington 98907 Tel (509)575-8500

Fax (509)575-4676

1 70. Plaintiffs incorporate their preceding responses to Paragraphs 1-69 to the extent those
2 paragraph allegations are incorporated in Paragraph 70.
3

4

71-75. Defendants deny the allegations of Paragraphs 71-75.

5

As further affirmative defenses, Defendants allege and state as follows:

6

76..To the extent plaintiffs or class members knew or should have known about the presence or

7 alleged presence of any illegal workers and failed to take steps to protect their interests by reporting the
8

presence of these workers to their places of employment or to appropriate governmental agencies, or by 9

10 acquiescing in the continued presence of illegal workers, that plaintiffs’/class members’ claimed injuries

11

and damages were caused (and are therefore barred) in whole or in part by plaintiffs’/class members’

12

contributory fault, contributory negligence, waiver, consent, acquiescence, ratification, estoppel, in pari

13
delicto, unclean hands, equal involvement, payment, failure to mitigate, and/or assumption of the risk, 14

15

and any other defense based upon the foregoing factual allegations.

16

77. That plaintiffs/class’ members’ claimed injuries and damages are barred in whole or in part

17 by the applicable statutes of limitations to the extent any claim is being made for damages outside the

18 applicable statutes o flimitations as it relates to when the claims asserted herein were commenced against

19
the various respective defendants. 20

21

78. That plaintiffs/class members’ Complaint fails to state a claim upon which relief can be

22 granted as there is no private right of action for violation of/conspiracy to violate the Immigration and

23 Nationality Act.

24

79. To the extent plaintiffs or class members participated either directly or indirectly in any

25
conduct alleged or found to be a part of any RICO violation or civil conspiracy as alleged by 26

27

plaint(ffs/class members, including, but not limited to, improper work documentation practices (such

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF MEYER, FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 8

230 South Second Street / P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1 as the filling out of I-9 or other work-related forms), failing to adhere to Zirkle Fruit Company’s policies
2

3

concerning only hiring properly documented workers, or failing to report/assisting/aiding or abetting

4

known or suspected illegal workers, plaintiffs’/class members’ claims are barred by the doctrines of

5

unclean hands, in pari delicto, equal involvement, contributory fault, contributory negligence, waiver,

6

consent, acquiescence, ratification, estoppel, and failure to mitigate, and/or assumption of the risk, and

7 any other defense based upon such conduct.
8

9

WHEREFORE, having answered Plaintiffs’ Complaint, Defendants pray for relief as follows:

10

1. For dismissal of Plaintiffs’ Complaint with prejudice;

11

2. For an award of Defendants’ costs, expenses, and attorneys’ fees as provided by law; and

12 3. For such other and further relief as the Court deems just and equitable.
13 DATED this ~ day of December, 2003.
14

15

16

_R.Y .AN ~D_GLEY, WSBA #16171 l\ \

17

Edgley 8/Beattie

"" \

18

Attorneys for Defendants Zirkle Fruit Company,

William Zirkle, Gary Hudson, and William

19

Wangler

20

21

22

MARK D. WATSON, WSBA #14693

Meyer, Fluegge & Tenney, P.S.

23

Attorneys for Defendants Zirkle Fruit Company,

24

William Zirkle, Gary Hudson, and William

Wangler

25

26

27

28

ANSWER OF DEFS. ZIRKLE FRUIT CO., W. ZIRKLE,

LAW OFFICES OF MEYER, FLUEGGE & TENNEY, P.S.

G. HUDSON & W. WANGLER TO SECOND AMENDED CLASS-ACTION COMPLAINT- 9

230 South Second Sla’eet / P.O. Box 22680 Yakima, Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1 Mark D. Watson 2 MEYER, FLUEGGE & TENNEY, P.S.
P.O. Box 22680 3 Yakima, WA 98907-2680
(509) 575-8500 4 Attorneys for Defendants Zirkle Fruit Company, 5 William Zirkle, Gary Hudson and William Wangler

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF WASHINGTON

AT YAKIMA

9

10 OLIVIA MENDOZA, JUANA MENDIOLA and VICTOR SANCHEZ,

NO. CY-00-3024-FVS

11 individually and on behalf of all others

similarly situated, 12

CERTIFICATE OF SERVICE

13

Plaintiffs,

14

Vo

15 ZIRKLE FRUIT CO., a Washington
16 corporation, SELECTIVE EMPLOYMENT AGENCY, INC., a
17 Washington corporation, DARYL
18 MATSON, RODERICK MATSON, WILLIAM ZIRKLE, GARY HUDSON
19 and WILLIAM WANGLER,

20’

Defendants.

21

22

I hereby certify under penalty of perjury under the laws of the state of Washington that the

23 following is true and correct to the best of my knowledge:
24 At all times herein mentioned the undersigned was and now is a citizen of the United States, and
25 a resident of the State of Washington, arid over the age of majority; that the undersigned is not a party
26
27 to the above-entitled action nor interested therein.

28 CERTIFICATE OF SERVICE - 1

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S.
230 South ~ccond/]trect / P.O. Box 22680 Yakim~ Washington 98907
Tel (509)575-8500 Fax (509)575-4676

1

That on December 8, 2003, the undersigned caused to be deposited in the United States Post

2 Office at Yakima, Yakima County, Washington, envelopes containing true and correct copies of this
3 Certificate of Service and Answer of Defendants Zirlde Fruit Company, William Zirkle, Gary
4
5 Hudson, and William Wangler to The Second Amended Class-Action Complaint, said envelopes

6 bearing correct first class postage and being addressed to:

7

8

Steve W. Berman, Esq. Andrew M. Volk, Esq.

9 Hagens Berman LLP

1301 Fifth Avenue, Suite 2900 10 Seattle, WA 98101

11 Terry C. Schmalz, Esq. 12 Lawrence E. Martin
Halverson & Applegate, P.S. 13 P.O. Box 22720 14 Yakima, WA 98907

15 Brendan V. Monahan, Esq. Velikanje, Moore & Shore, P.S.
16 P.O. Box C-2550
Yakima, WA 98907 17

Howard W. Foster, Esq. Johnson & Bell, LTD 55 East Monroe, Suite 4100 Chicago, IL 60603
Ryan M. Edgley, Esq. Edgley & Beattie, P.S. 201 East "D" Street Yakima, WA 98901
James A. Smith, Jr., Esq. Smith & Hennessey PLLC 316 Occidental Avenue South, Suite 500 Seattle, WA 98104

18 DATED this ~,:l,q day of December, 2003, at Yakima, Washington.
19

20

21

KATHY M(A~UGG C) ~

22

23

24

25

26

27

28 CERTIFICATE OF SERVICE - 2

LAW OFFICES OF
MEYER, FLUEGGE & TENNEY, P.S. 230 South S~eond Street / P.O. Box 22680 Yakim~, W~hington 98907 Tel (509)575-8500 Fax (509)575-4676

 </s> 1 Brendan V. Monahan

2

Velikanje, Moore & Shore, P.S. 405 East Lincoln Avenue

3 P.O. Box 22550

4

Yakima, Washington 98907 Telephone: 509-248-6030

5 Attorneys for Defendant Selective Employment

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
JAN 2 0 2004
JAMES R. LARSEN, CLERK DEPUTY
YAKIMA, WASHINGTON

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF WASHINGTON

9

10 OLIVIA MENDOZA and JUANA

)

11 MENDIOLA, individually and on

)

12 behalf of all other similarly situated,

)

13

)

Plaintiffs,

)

14

)

15

)

16

)

17 ZIRKLE FRUIT CO., a Washington

)

18 19

corporation, MATSON FRUIT COMPANY, a Washington corporation and SELECTIVE EMPLOYMENT

) ) )

20 AGENCY, INC., a Washington

)

21 corporation,

)

22

)

23

Defendants.

)

24

)

NO. CY-00-3024-FVS
DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

25

26

Comes now Defendant Selective Employment Agency, Inc. ("Selective") and

27
28 answers the Plaintiffs’ Second Amended Complaint as follows:

29
1. Selective disputes that the alleged class is appropriate from either a
3O

31 factual or legal perspective, and accordingly denies the allegation set forth in
32
33 paragraph one (1) of the Plaintiffs’ complaint.

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 1 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

2. This allegation does not appear to pertain to Selective, and Selective

2
3 offers no response. To the extent Selective is alleged to have known of or

4 participated in the "scheme" alleged in paragraph two (2) of the Plaintiffs’ complaint,
5

6 such allegation is denied.

7

8

3. This allegation does not appear to pertain to Selective, and Selective

9
offers no response. To the extent Selective is alleged to have participated in the
10

11 "scheme" alleged in paragraph three (3) of the Plaintiffs’ complaint, such allegation
12

13 is denied.

14

15

4. Denied.

16

5. Denied.

17

18

6. Denied.

19

20

7. Denied.

21

8. Selective admits that plaintiffMendoza was employed by Matson as a

22

23 warehouse laborer. Selective has insufficient knowledge or is otherwise unable to

24
25 respond to the remaining allegations in paragraph eight (8) of the Plaintiffs’

26 complaint, and such allegations are therefore denied.
27

28

9. Selective admits that it hired plaintiff Mendiola, and that she was

29
30 assigned to perform warehouse work at Zirkle in late 1999 and early 2000. Selective

31
has insufficient knowledge or is otherwise unable to respond to the remaining
32

33 allegations in paragraph nine (9) of the Plaintiffs’ complaint, and such allegations are
34
35 therefore denied.

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 2 321511b

Velikanje, Moore & Shore, P.$.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakirna, WA g8907
(509) 248-6030

1

10. Selective has insufficient information to form a belief as to the truth or

2
3 falsity of the allegations set forth at paragraph 10 of the Plaintiffs’ complaint, and

4 such allegations are therefore denied.
5

6

11. Denied.

7

8

12. Admitted.

9 10

13. Denied.

11

14. Denied.

12

13

15. Denied.

14

15

16. Admitted.

16

17. Selective denies that the exercise of supplemental jurisdiction is

17

18 appropriate.

19

2O

18. Selective denies all allegations and implications relating to "illegal acts",

21 but admits that venue for this litigation is properly situated in the Eastern District of
22

23 Washington.

24

25

19. Selective denies that this action may be appropriately pursued as a class

26 action, and further denies that it is properly included as a defendant of the proposed
27

28 class. Only a fraction of the proposed class would have been hired by Selective.

29

30

20. Denied.

31

21. Paragraph 21 of the Plaintiffs’ complaint, including sub-parts a-d, is

32

33 denied in its entirety.

34

35

22. Denied.

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 3 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

23. Denied.

2

3

24. Paragraph 24 of the Plaintiffs’ complaint, including sub-parts a-d, is

4 denied in its entirety.
5

6

25. Denied.

7

8

26. Admitted.

9
27. Selective has insufficient information to form a belief as to the truth or
10

11 falsity of the allegations contained in paragraph 27 of the Plaintiffs’ complaint, and
12

13 such allegations are accordingly denied.

14

15

28. Denied.

16

29. The allegations in this paragraph do not pertain to Selective, and

17

18 Selective offers no response.

19

20

30. The allegations in this paragraph do not pertain to Selective, and

21 Selective offers no response.
22

23

31. The allegations in this paragraph do not pertain to Selective, and

24
25 Selective offers no response.

26

32. The allegations in this paragraph do not pertain to Selective, and

27

28 Selective offers no response.

29

30

33. Selective was made aware, through media reports, of an INS

31
enforcement/education project called "Operation Snowbird". Selective has
32

33 insufficient information to form a belief as to the truth or falsity of the remaining
34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 4 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) ;’48-6030

1 allegations contained in paragraph 33 of the Plaintiffs’ complaint, and such

2
3 allegations are accordingly denied.

4

34. Selective denies the broad assertions relating to the manner in which the

5

6 hiring of illegal workers may allegedly be prevented. As to the remainder of the
7
8 allegations in paragraph 34 of the complaint, Selective is without sufficient

9
information to form an opinion as to the truth or falsity thereof, and all such
10

11 allegations are therefore denied.
12

13

35. Selective is without sufficient information to form an opinion as to the

14
15 truth or falsity of the allegations set forth at paragraph 35 of the complaint, and all

16 such allegations are therefore denied.
17

18

36. Selective is without sufficient information to form an opinion as to the

19
20 truth or falsity of the allegations set forth at paragraph 36 of the complaint, and all

21 such allegations are therefore denied.
22

23

37. Selective is without sufficient information to form an opinion as to the

24
25 truth or falsity of the allegations set forth at paragraph 37 of the complaint, and all

26 such allegations are therefore denied.
27

28

38. Selective admits that it entered an agreement with Matson Fruit

29

30 Company in 2000. All other allegations contained in paragraph 38 of the complaint

31
are denied.
32

33

39. Denied.

34

35

40. Denied.

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 5 321511b

Velikanje, Moore & Shore, P.S.
attorneys at I:~w 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

41. No factual assertion is made, and Selective offers no response.

42. Selective is without sufficient information to form an opimon as to the

truth or falsity of the allegations set forth at paragraph 42 of the complaint, and all
5

6 such allegations are therefore denied.

7

8

43. Selective is without sufficient information to form an opinion as to the

9
10 truth or falsity of the allegations set forth at paragraph 43 of the complaint, and all

11 such allegations are therefore denied.
12

13

44. Selective is without sufficient information to form an opimon as to the

14
15 truth or falsity of the allegations set forth at paragraph 44 of the complaint, and all

16 such allegations are therefore denied.
17

18

45. Selective is without sufficient information to form an opimon as to the

19
20 truth or falsity of the allegations set forth at paragraph 45 of the complaint, and all

21 such allegations are therefore denied.
22

23

46. Selective ~s without sufficient information to form an opimon as to the

24
25 truth or falsity of the allegations set forth at paragraph 46 of the complaint, and all

26 such allegations are therefore denied.
27

28

47. Selective is without sufficient information to form an opinion as to the

29

30 truth or falsity of the allegations set forth at paragraph 47 of the complaint, and all

31 such allegations are therefore denied.
32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 6 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

48. Selective is without sufficient information to form an opinion as to the

2

3 truth or falsity of the allegations set forth at paragraph 48 of the complaint, and all

4
such allegations are therefore denied.
5

6

49. Selective is without sufficient information to form an opinion as to the

7
8 truth or falsity of the allegations set forth at paragraph 49 of the complaint, and all

9
10 such allegations are therefore denied.

11

50. Selective admits that it entered into a formal agreement whereby it would

12

13 employ workers, and assign them to work at Zirkle on an as-needed basis. All other

14
15 allegations set forth in paragraph 50 of the complaint are denied.

16

51. Selective admits that it was instructed to begin verifying the social

17

18 security numbers of the employees it hired for Zirkle in 2000. The remaining

19
20 allegations set forth in paragraph 51 of the complaint are denied.

21

52. Denied.

22

23

53. Selective is without sufficient information to form an opinion as to the

24
25 truth or falsity of the allegations set forth at paragraph 53 of the complaint, and all

26 such allegations are therefore denied.
27

28

54. Selective is without sufficient information to form an opinion as to the

29
30 truth or falsity of the allegations set forth at paragraph 54 of the complaint, and all

31
such allegations are therefore denied.
32

33

55. Denied.

34

35

56. Denied.

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 7 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

57. Denied.

2

3

58. Denied.

4
59. Denied.
5

6

60. Denied.

7

8

61. Denied.

9

10

62. Selective incorporates the preceding responses as if fully set forth.

11

63. Selective admits that the Plaintiffs are "persons", but denies that it has

12

13 violated any provisions of 18 USC 1962.

14

15

64. Denied.

16

65. Denied.

17

18

66. Denied.

19

20

67. Denied.

21

68. Denied.

22

23

69. Denied.

24

25

70. Selective incorporates the preceding responses as if fully set forth.

26

71. No factual assertion is made, and no response is offered.

27

28

72. Denied.

29

30

73. Denied.

31

32

74. Denied.

33

75. Denied.

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 8 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

WHEREFORE, HAVING ANSWERED THE PLAINTIFFS’ SECOND

2
3 AMENDED COMPLAINT, AND BY FURTHER ANSWER AND PLEADING,

4
SELECTIVE OFFERS THE FOLLOWING AFFIRMATIVE DEFENSES:
5

6

1. The Plaintiffs’ damage claims, or a portion thereof, are barred or limited

7

8 by the statute of limitations.

9

10

2. The Plaintiffs’ claims are barred or limited by the doctrines ofestoppel,

11 waiver, consent and payment, and/or failure to mitigate.
12

13

3. Plaintiffs fail to state a claim for Civil Conspiracy.

14

15

HAVING FULLY ANSWERED THE PLAINTIFFS’ FIRST AMENDED

16 COMPLAINT, SELECTIVE REQUESTS THE FOLLOWING RELIEF:
17

18

1. That the pending action be dismissed with prejudice;

19

2O

2. That Selective be awarded its reasonable costs and attorneys’ fees.

21

DATED this ~-I~ay of January, 2004.

22

23

VELIKANJE, MOORE & SHORE, P.S.

24

25

26

27

SBA No. 22315

28

Sarah L. Wixson, WSBA No. 28423

29

30

31

32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 9 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550
Yakima, WA 98907 (509) 24a-6030

1

CERTIFICATE OF SERVICE

2

3

I am Lori A. Busby. I hereby certify under penalty of perjury of the laws of the

4 State of Washington that the following statements are true and correct.

5

I am one of the employees of the attorneys for the defendant Selective

6 Employment in the above-entitled matter; that I am a citizen of the United States, a

7 resident of Yakima County, Washington, over the age of twenty-one years, and not

8 a party to said action. That on the Q,~)t-~ day of January, 2004, I caused to be

9 deposited in the United States mail, postage prepaid, a copy of the document to which this is attached to the following:
10

11 Howard W. Foster, Esq. 12 JOHNSON & BELL, LTD. 13 Suite 4100 55 East Monroe Street
14 Chicago, IL 60603-5896

Ryan M. Edgley, Esq. Edgley & Beattie, P.S. 201 East "D" Street Yakima, WA 98901

15
Steve W. Berman, Esq. 16 Andrew M. Volk, Esq. 17 HAGENS, BERMAN LLP
18 1301 Fifth Avenue, Suite 2900
19 Seattle, WA 98101

Lawrence Martin, Esq. Halverson & Applegate P.O. Box 22730 Yakima, WA 98907-2715

20
Mark D. Watson, Esq. 21 Meyer, Fluegge & Tenney, P.S. 22 230 South Second Street
23 P.O. Box 22680
24 Yakima, WA 98907

Michael V. Connell Smart Law Offices, P.S. 501 N. 2nd Street Yakima, WA 98901

25

26

27

Dated at Yakima, Washington this o~,~f/’-day of January, 2004.

28

29

30

31

"~L~ri A. Bhsby- ~/

32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT- 10 321511b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

 </s> Ryan M. Edgley

1 Kirk A. Ehlis

2 Halverson & Applegate, P.S.

3 P.O. Box 22730

4

Yakima, WA 98907-2715 Telephone: (509) 575 6611

5

6 Attorneys for Defendants Matson Fruit 7 Company and Zirlde Fruit Co.

8

9 Walter G. Meyer
10 Meyer, Fluegge & Tenney, PS 11 230 South 2-a Street
Yakima, WA 12 Telephone: (509) 575-8500
13
14 Attorneys for Defendant Zirlde Fruit Co.

FILED IN THE U,S. DISTRICT COURT ~STERN DISTRICT OF WASHINGTO~
NAY
JA;VIES R. L&RSEN, CLERK DEPUTY’
"---- YAKI~AA, VVASHINGTQN
Honorable Fred VanSickle

15

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF WASHINGTON

18

19 OLIVIA MENDOZA and JUANA 20 MENDIOLA, individually and on
21 behalf of all others similarly situated,

22

23

Plaintiffs,

NO. CY-00-3024-FVS

24 Vo

25

26 ZIRKLE FRUIT CO., a Washington

corporation, MATSON FRUIT 27 COMPANY, a Washington corporation)

28 and SELECTIVE EMPLOYMENT

)

29 AGENCY, INC., a Washington

)

30 corporation, 31 32

)
)
Defendants. )
)

33

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS AND FOR A STAY OF DISCOVERY

34

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
3~1 NOI~H FOUI~TH ~TREET -- P. O. BOX 22730
YAKIMA, WASHINGTON 98907-2715 PHON~ 575-6611

1

TABLE OF CONTENTS

2

3

4 PRELIMINARY STATEMENT .......................................................................................

1

5 PLAINTIFFS’ FACTUAL ALLEGATIONS ................................................................... 4
6

7 ARGUMENT ...................................................................................................................... 6

8 1.
9 10 11 12 13

Plaintiffs Fail to Adequately Allege The Necessary Elements

of Any RICO Predicate Act .........................................................................................

7

A. Failure to plead facts necessary to state a violation of the Immigration and Nationality Act ........................................................................ 10

B. Failure to adequately plead mail fraud violation of RICO ............................... 11

14 2. Plaintiffs Lack Standing To Pursue RICO ............................................................... 15 15

16 3. Plaintiffs’ Claims Are Prohibited By The Comprehensive Enforcement

17

Scheme Within The Immigration Reform and Control Act ...................................... 21

18 4. The State Law Civil Conspiracy Claim is preempted by express

t9

provision of 8 U.S.C. § 1324a(h)(2) ............................................................................ 25

20 CONCLUSION .................................................................................................................

26

21

22

23

24

25

26

27

28

29

3O

31

32

33

34

LAW OFFICES OF
HALVERSON & APPLEGATE, P.$.
311 NOI~H FOUm’H STaF.ET -- P. O. Box 22730 YAKIMA, WASHING’ION 98907-2715 PHONE 575-6611

1

TABLE OF AUTHORITIES

2

Cases

3

4 Bach v. Mason, 190 F.R.D. 567, 570 (1999) .......................................................................

8

5 Bonnano v. Thomas, 309 F. 2d 320, 322 (9th Cir. 1962) ..................................................

21

6

7 Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) ............................. 8

8 Contreras v. Corinthian Vigor Insurance Brokerage, 25 F.Supp.2d

9

1053 (N.D.CA 1998) ................................................................................................

19

10 Coronado v. Duncan, Lexis 19025, pg. 5 (N. D. Cal. 1999) .............................................

13

11

12 Danielson v. Burnside-Ott Aviation Training Center, Inc., 941 F.2d

13

1220, 1228 (D.C. Cir. 1991) .................................................................................... 24

14 Holmes v. Securities Investor_Protection Corp., 503 U.S. 258, 268, 112

15

S. Ct. 1311, 117 L. Ed. 2d 532 (1992) ............................................ 15, 16, 17, 19, 20

16 Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1311 (9th Cir.

17

1992), cert. denied, 123 L. Ed. 2d 266, 113 S.Ct. 1644 (1993) .................. 16, 19, 20

18

19 Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975) ............................................

23

20 McDonough v. Genecorp, Inc., 750 F.Supp. 368 (S.D. Ill. 1990) ..................................... 24

21

22

Miscellaneous Service Workers v. Philco-Ford Corp., 661 F.2d 776 (9th Cir. 1981) ..........................................................................................................

24

23

24 Nieto-Santos v. Fletcher Farms, 743 F.2d 638 (9th Cir. 1984) ........................................

23

25 NLRB v. Kolkka, 170 F.3d 937 (9th Cir.) 1999 ............................................................ 26

27 Oscar v. University Students Co-Operative Ass’n., 965 F.2d. 783, 785

28

(9th Cir. 1992) ............................................................................................

18-19 4, 5, 16, 21

29 Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996) ............................ 3O 31 Rothman v. Vedder Park Mgmt., 912 F.2d 315, 316 (9th Cir. 1990) .........................

25 13, 15

32 Schmidt v. Fleet Bank, 16 F. Supp.2d 340, 346 (S.D.N.Y. 1998) ...................................... 8

33

34

Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1400 (9th Cir. 1986) .................................................................................................

12

LAW OFFICES OF

HALVERSON & APPLEGATE, P.S.

ii

311 No~’rH FO~:rH STREE-r -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715

PHON~ 575-6611

1 Sedima, S.P.R.L.v. Imrex Co., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105

2

S. Ct. 3275 (1985) .......................................................................................

15, 16, 17

3 Stationary Eng’rs Local 39_Health and Welfare Trust Fund v. Philip

4

Morris, Inc., Lexis 8302, pp. 10-11 (N.D. Cal. 1998) ............................................. 15

5 6 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .................................................................. 18

7 U.S.v. Richard Dattner Architects, 972 F.Supp.738

8

(S.D.N.Y. 1997) ......................................................................................................

23

9

10

Statutes

11 Immigration and Nationality Act, (8 U.S.C. 1324) ........................................ 6, 7, 9, 10, 11

12

Immigration Reform and Control Act,

13

(8 U.S.C. 1324a, et seq.) ...........................

14

1, 2, 3, 6, 7, 11, 13, 14, 21, 22, 23, 24, 25

15 Racketeering Influenced and Corrupt Organizations Act, (18 U.S.C. 1961, et seq.) ................ 2, 3, 4, 6, 8, 9, 15, 16, 17, 18, 19, 21, 23, 24, 25
16

17 18 U.S.C. 1341 ...............................................................................................................

9, 11

18 National Labor Relations Act ...........................................................................................

27

19

20

21

Other Authorities

22 1986 U.S. Code Cong. And Adm. News, page 5666 ...................................................
23

14, 22

24

Rules

25

26 Fed. R. Civ. P. 8 ...........................................................................................................

1, 3, 7

27 Fed. R. Civ. P. 9 ................................................................................................... 28
29 Fed. R. Civ. P. 11 .......................................................................................................

1, 3, 12, 13 1, 8, 10

3O Fed. R. Civ. P. 12 .....................................................................................................
31 32 Local Rule 3.2 ........................................................................................................

1, 11, 12 1, 8, 9, 10

33

34

LAW OFFICES OF

HALVERSON & APPLEGATE, P.S.

111

311 NOI~’rH Fovm’H S’mEEr -- P. O. BOX 22730

YAKIMA, WASHINGTON 98907-2715

PHOt,/E 575-6611

1

Defendants Zirkle Fruit Co. (hereinafter "Zirlde") and Matson Fruit Company

2 (hereinafter "Matson") respectfully submit this memorandum in support of their 3 4 motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6),

5 Rule 8 and Rule 9 (b) of the Federal Rules of Civil Procedure.
6

7

PRELIMINARY STATEMENT

8 Zirlde and Matson are closely held Washington corporations in the business of
9

10 growing, packaging and selling fresh fruit of many varieties. Beginning in 1999,

11 12 Zirkle began accepting temporary/seasonal employee referrals from co-defendant

13 Selective Employment Agency, Inc. (hereinafter "Selective"). Matson accepted 14

15 temporary/seasonal employee referrals from co-defendant Selective for less than one

16 month beginning in mid-February, 2000. The plaintiffs allege, without having
17

18 conducted adequate investigation required by Fed. R. Civ. P. l l(b) and Local Rule 3.2,

19 20 that Selective ’~nowingly employs large numbers of illegal immigrants" pursuant to

21 requests by, or agreements with, Zirkle and Matson. (Plaintiffs’ RICO Case Statement, 22 23 ¶ (f)(1)).~

24 Both Zirkle and Matson maintain employment eligibility verification forms (I-9
25

26 Forms) for the workers they hire and pay. These forms have been reviewed by the

27 28 Immigration and Naturalization Service (INS) pursuant to 8 U.S.C. § 1324a(b)(3).

29 Both Zirlde and Matson have been directed to terminate the employment of workers 30

31

32 1. The allegations of plaintiffs’ Complaint (¶¶ 4 & 22) limit Zirkle’s and Matson’s alleged knowing employment of

33 unauthorized aliens to that which allegedly occurred through "the essential role played by Selective .... " In an attempt to bring the alleged "illegal immigrant hiring scheme" within the coverage of the Racketeer Influenced and Corrupt
34 Organizations Act, it has been necessary for the plaintiffs to allege the scheme is perpetrated by "enterprises" consisting of

Zirkle-Seleetive and Matson-Selective. (Complaint ¶ 4, Plaintit~s RICO Case Statement ¶ (f)(1)).

LA~ OFFICES OF

HALVERSON & APPLEGATE, P.S.

MEMORANDUM SUPPORTING DISMISSAL - 1

311 NORTH Fotm~ STRUt -- P. O. Box 22730 YAKIMA, WASHINGTON 98907-2715

PHONE 575-6611

the INS has determined are not authorized to work. (Complaint ¶7 23-25).2 Although

plaintiffs have clearly had access to the records of the INS (See: Complaint ¶ 27), there

3 4 is no allegation the INS has ever accused Matson or Zirkle - pursuant to their

5 authority under 8 U.S.C. § 1324a(e)(1),(3) and (4) - of knowingly employing any 6

7 unauthorized alien.

8 Plaintiffs purport to bring this action "on behalf of all persons legally authorized
9

10 to be employed in the United States ("U.S.") who have been hired by defendants

11 12 [Zirkle] and [Matson] as hourly wage earners and who were recruited or referred to

13 Zirkle and Matson by Selective Employment Agency." (Compl. ¶ 1). However, the 14 15 plaintiffs allege they have been employed only by Zirkle, and only during 1999.

16 (Compl. ¶ 46). It is unclear on what basis plaintiffs claim to have standing to sue
17

18 Matson Fruit Company as, by their own admission, they apparently have no affiliation

19 20 with Matson Fruit Company.

21

The substance of the plaintiffs’ complaint is their unsubstantiated allegation

22

23 that Zirkle and Matson have "embarked on a scheme to employ workforces

24 substantially comprised of undocumented immigrants who have no legal right to be 25

26 employed in the U.S. (hereinafter the "Illegal Immigrant Hiring Scheme")." (Compl. ¶

27 2). This "scheme" is alleged to violate the Racketeer Influenced and Corrupt
28

29 Organizations Act (hereinafter "RICO"), 18 U.S.C. § 1961 et seq., and Washington state 30

31

32 2. According to the plaintiffs’ allegations, the workers hired through the "illegal immigrant hiring scheme" are actually

33

employed and paid by Selective. (Plaintiffs" RICO Case Statement ¶ (f)(1)). However, the Complaint neither alleges that Zirkle or Matson maintain I-9 Forms for the workers hired and paid by Selective, nor that the INS has ever reviewed the 1-9

34 Forms maintained by Selective for said employees. Thus, the plaintiffs have presented no information, nor even any

allegations, regarding the number of unauthorized workers allegedly hired through the purported "scheme."

MEMORANDUM SUPPORTING DISMISSAL - 2

LAW OFFICES OF
HALVERSON & APPLEGATE, ES. 31a No~n~ Fo~ S~r -- Z O. Bo× zzr3o
YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

1 law. (Compl. 7 2). The plaintiffs further allege that the purpose for conducting the
2 "Illegal Immigrant Hiring Scheme" is to depress employee wages ’q)elow the levels they 3 4 would otherwise be required to pay if they were unable to hire substantial numbers of
5 illegal immigrants..." (Compl. 7 3).
6

7

In their effort to fabricate a class action lawsuit under the powerful - and

8 9 potentially lucrative - RICO statute, plaintiffs present the court with an entirely

10 uninformative, speculative, and conclusory set of allegations that are rife with

11 12 unsubstantiated conspiracy theories, but no requisite factual contentions. The

13 plaintiffs’ allegations are deficient in the following manner: 14

15

1) They fail to adequately allege the elements of any predicate act under

16

RICO;

17

2)

They fail to allege a direct injury to plaintiffs’ business or property, as is

18

necessary for standing to pursue claims under RICO;

19

20

3)

They propose to interfere with, and misuse in contravention of statute,

the comprehensive enforcement scheme established by the Immigration

21

Reform and Control Act, specifically 8 U.S.C. § § 1324a and 1324b;

22

23

4)

The civil conspiracy allegation brought under the common law of the

24

State of Washington is expressly preempted by 8 U.S.C. § 1324a(h)(2).

25

Because of these deficiencies, the plaintiffs’ allegations do not warrant their

26

27 intent to undertake a discovery fishing expedition (See: Complaint 77 14, 19, 25, 29,

28 32, 38 and 39, Plaintiffs’ RICO Case Statement 77 (e)(3) and (u)) at the expense of the
29
30 defendants. By this motion, Zirkle and Matson ask the court to prevent this blatant
31 32 misuse of the RICO statute. The Complaint should be dismissed because it fails to

33 satisfy even the minimum pleading requirements of Civil Rules 8 and Fed. R. Civ. P. 9, 34

MEMORANDUM SUPPORTING DISMISSAL - 3

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NOW;H FOC’RTH SrR~Er -- E O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

it does not satisfy this court’s Local Rules for pleading a RICO case, and because it
1

2 fails to state a claim under RICO or the common law of the State of Washington.

3

4

PLAINTIFFS’ FACTUAL ALLEGATIONS

5

For purposes of this motion only, well-pleaded factual allegations in plaintiffs’

6
complaint are accepted as true. See, e.g., Oscar v. University Students Co-Operative
7

8 Ass’n, 965 F.2d. 783, 785 (9th Cir. 1992). Purged of their unfounded and inflammatory
9
10 hyperbole,3 the plaintiffs’ allegations include:

11

Plaintiffs Olivia Mendoza and Juana Mendiola were employed by Zirlde Fruit

12

13 Company as laborers. (Compl. 7 7). Zirkle and Matson are both Washington

14
corporations with their principal places of business in Yakima County, and both are in
15

16 the business of operating fruit orchards and packing houses. (Compl. 77 2, 22). Like

17
18 all other fruit businesses throughout Washington and the United States, Zirkle and

19 Matson employ many "unskilled, low-wage laborers." (Compl. 7 21). Many of these
20
21 workers are of Mexican descent. (Compl. 7 22). Additionally, as with any business in

22
a free market economy, Zirlde and Matson are motivated to, and do keep labor costs as
23

24 low as possible. Id.

25

26

Zirkle and Matson have entered into contractual agreements with Selective, a

27 temporary employment agency, to provide workers. (Compl. 7 40). For a fee, Selective
28
29 provides workers to Zirkle and Matson. Id. Although, these workers perform work for

30

31 3. The characterization of Selective as a "front company" (Complaint ¶ 4) infers an evil motive from nothing more than the
32 use of a temporary help agency, which is a common practice in many industries. Additionally, the characterization of the INS

33

effort to emphasize I-9 audits in the fruit packing industry as a "crackdown ... on apple growers" falsely implies that the apple growers were deemed culpable or penalized. In fact, the INS enforcement action was against workers using false

34 documents (not the growers or employers), and resulted only in orders by the INS that workers be terminated. (Complaint ¶

23).

LAW OFFICES OF

MEMORANDUM SUPPORTING DISMISSAL - 4

HALVERSON & APPLEGATE, ES.
311 NogrH FougrH STair -- E O. Box 22730
YAKIMA, WASHINGTON 98907-2715

PHONE 575-6611

Zirkle and Matson, they are paid by Selective and Selective withholds the necessary 1

2 taxes from the workers’ paychecks. Id.

3

4

Plaintiffs allege that Matson and Zirkle, with an "essential role played by

5 Selective," hire at least 50 unauthorized alien workers each year, with actual 6
7 knowledge that each individual is an unauthorized alien and that each individual was

8 smuggled into the U.S. by a third party. (Compl. ¶¶ 22, 29 and 32).4 9

10

Further, it is alleged that whenever Matson or Zirkle employs an unauthorized

11 12 alien, they complete (or they direct Selective to complete, and Selective does complete)

13 an I-9 employment eligibility verification form that is mailed to the INS. (Compl. ¶ 14
15 34). The I-9 Forms are allegedly completed and mailed with respect to workers who

16 are known to be ineligible for employment. (Compl. ¶¶ 35 and 39). The mailing of
17

18 allegedly false I-9 Forms to the INS is erroneously purported to further the "Illegal

19 20 Immigrant Hiring Scheme," because "[t]hese forms are required by federal law to be

21 sent to the INS upon the hiring of each employee." (Plaintiffs RICO Case Statement ¶ 22 23 (e)(3))(emphasis added)L

24 Finally, plaintiffs assume that unauthorized aliens "are willing to accept wages
25

26 that are significantly lower than wages would be in a labor market comprised solely of

27

28

29

3O 4. Despite plaintiffs’ attempt to characterize Matson and Zirlde as having been subject to "crackdowns" by the INS, there is

31

no allegation the INS ever accused either defendant of knowingly employing an unauthorized alien, pursuant to the agency’s authority under 8 U.S.C. § 1324a(e)(1),(3) and (4).

32

33

5. Because this contention relies on an erroneous statement of the law, the failure to adequately allege "mail fraud" in furtherance of a scheme violating RICO can b¢ addressed by motion under Fed. R. Civ. P. 12(b)(6), without consideration of

34 additional facts. Further, this error highlights the plaintiffs’ lack of knowledge about the actual application of the

Immigration Reform and Control Act employment eligibility verification procedures. (S¢ 8 U.S.C. § 1324a(b)(3).

LAW OFFICES OF

MEMORANDUM SUPPORTING DISMISSAL - 5

HALVERSON & APPLEGATE, P.S.
311 NORTH Foumlq STP.I~T -- P. O. BOX 22730
YAKIMA, WASHINGTON 98907-2715

PHOebE 575-6611

legally authorized workers." (Compl. ¶ 22).~ Plaintiffs allege this payment of a lower 1

2 wage to unauthorized aliens "depressed" the wage for which plaintiffs willingly agreed 3 4 to work. (Compl. ¶¶ 46 and 47, Plaintiffs’ RICO Case Statement ¶ (p)).

5

ARGUMENT

6 Initially, it is important for the court to distinguish between an alleged violation
7

8 of the Immigration Reform and Control Act (IRCA) (8 U.S.C. § 1324a, et seq.), which

9 10 is not a RICO predicate act under 18 U.S.C. § 1961(1)7, and other separate but

11 similarly (perhaps confusingly) numbered provisions of the Immigration and 12 13 Nationality Act (specifically 8 U.S.C. § 1324). The plaintiffs argue there have been

14 only two RICO predicate acts, including purported violations of the Immigration and
15

16 Nationality Act, 8 U.S.C. § 1324. They do not argue that an alleged violation of the

17 18 IRCA (8 U.S.C. § 1324a) is a RICO predicate act.

19

Nevertheless, the Complaint and Plaintiffs’ RICO Case Statement allege facts

20

21 arising exclusively out of: (1) Zirlde’s and Matson’s compliance with the IRCA

22 prohibition against employing persons known to be unauthorized aliens; (2) Zirlde’s 23

24 and Matson’s compliance with the IRCA obligation to inspect employment eligibility

25 documents and complete I-9 Forms; and (2) the results and consequences of INS
26

27 enforcement of IRCA. All issues arising under the IRCA. There are, however, no

28

29 6. This unsubstantiated assumption completely ignores the fight, and actual practice, of unauthorized aliens to engage in
3O union organizing and any other concerted activity for the betterment of wages and working conditions protected by the

31 National Labor Relations Act. See: Contreras v. Corinthian Vigor Insurance Brokerage, 25 F.Supp.2d 1053 (N.D.CA 1998); see also: 1986 U.S. Code Cong. And Adm. News, page 5662.
32

33

7. Section 1961 (1) of Title 18 U.S.C. defines "racketeering activity," for RICO predicate acts, to include "(F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens) "....

34 but does not include violations of IRCA seetion 274A (prohibiting employment of persons known to be unauthorized aliens

and requiring employers inspection of employment eligibility verification documents). 8 U.S.C. § 1324a(a) and (b).

MEMORANDUM SUPPORTING DISMISSAL - 6

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
31! NOaH FOUgTH STY7 -- P. O. Box 22730
YAKIMA, WASHINGTON 98907-2715

PHONE 575-6611

factual allegations that Zirkle or Matson violated 8 U.S.C. § 1324(a)(3), which requires 1

2 "actual knowledge" about individual unauthorized aliens being smuggled into the 3 4 U.S.

5

The IRCA (8 U.S.C. § 1324a) prohibits "knowingly" employing unauthorized

6

7 aliens (8 U.S.C. § 1324a(a)), and makes a "pattern or practice" of employing

8 unauthorized aliens a misdemeanor punishable by imprisonment for up to six months.
9

10 8 U.S.C. § 1324a(f)(1). Standing alone, a "pattern or practice" of knowingly hiring or
11 12 employing unauthorized aliens is not a RICO predicate act.

13

The provision of the Immigration and Nationality Act relied on by plaintiffs (8

14

15 U.S.C. § 1324(a)(3)(A) & (B)), prohibits hiring unauthorized aliens, with "actual

16 knowledge that the individuals" were smuggled into the U.S. by a third person. See:
17

18 8 U.S.C. § 1324(a)(3)(B)(ii). Hence, to plead an indictable violation of the Immigration
19 20 and Nationality Act, and therefore a RICO predicate act, the plaintiffs must allege

21 facts showing: (1) which individual Zirkle and Matson employees were smuggled into 22 23 the U.S. by third parties and, (2) more importantly, that Zirlde and Matson had "actual

24 knowledge" of the smuggling with respect to those individuals. Not surprisingly, the
25

26 allegations of plaintiffs’ Complaint and Plaintiffs’ RICO Case Statement conspicuously

27 28 avoid discussion of this element of a prima facie case.

29 1. 30
31 32

Plaintiffs Fail to Adequately Allege The Necessary Elements of Any RICO Predicate Act.
While Rule 8 (a) of the Federal Rules of Civil Procedure generally requires

33 only a "short and plain statement showing that the pleader is entitled to relief," a 34

MEMORANDUM SUPPORTING DISMISSAL - 7

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH FOURTH ~TREET -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715 PHON~ 575-6611

defendant is still entitled to "fair notice of what the plaintiffs’ claim is and the
1

2 grounds upon which it rests." Cordey v. Gibsor~, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 3 4 S. Ct. 99 (1957). Notwithstanding the generally liberal standards of"notice

5 pleading" under the federal rules, a complaint should be dismissed where it 6

7 provides only unsupported conclusory allegations, which fail to give defendants fair

8 9 notice of the alleged facts on which plaintiffs’ claims are based. Bach v. Masor~, 190

10 F.R.D. 567, 570 (1999).

11

12

Courts have been particularly vigilant in scrutinizing claims asserted under

13 the civil RICO statute for compliance with these minimum requirements because 14

15 "[c]ivil RICO is an unusually potent weapon - the litigation equivalent of a

16 thermonuclear device." Schmidt v. Fleet Batik, 16 F. Supp.2d 340, 346 (S.D.N.Y.
17

18 1998) (citations and internal quotation marks omitted). ’~3ecause the mere

19 20 assertion of a RICO claim.., has an almost inevitable stigmatizing effect on those

21 named as defendants,.., courts should strive to flush out frivolous RICO 22

23 allegations at an early stage of the litigation." Id. (citations and internal quotation

24 25 marks omitted).

26

Consistent with these principles, and with "counsel’s obligations under Fed.

27

28 R. Civ. P. 11 to make a ’reasonable inquiry’ prior to filing the complaint," this court

29 has adopted Local Rule 3.2 to specifically regulate civil RICO cases. This Local 30

31 Rule requires the plaintiffs to "state in detail and with specificity" the facts that

32 support their RICO claims through some 42 different questions. The purpose of the
33

34 RICO Case Statement is to assist the court in summarily dispensing of

MEMORANDUM SUPPORTING DISMISSAL - 8

LAW OFFICES OF
HALVERSON & APPLEGATE, P.$. 3~ NO~T. Four. S~E~ -- P. O. Bo× 2Z~
YAKIMA, WASI-UNGTON 98907-2715
PHONE 575-6611

1 unwarranted RICO cases early in the proceedings, and to allow defendants to begin

2 a defense immediately - due to the very serious nature of the allegations. 3 4 Specifically, LR 3.2(e)(2) and (3) require plaintiffs to provide dates, identify

5 participants and describe the facts surrounding the alleged predicate acts. 6

7

With these principles in mind, it is obvious the plaintiffs have not, and cannot

8 plead or prove the necessary elements of the RICO predicate acts they are attempting
9

10 to rely upon. Only two RICO predicate acts under 18 U.S.C. § 1961(1) are claimed by

11 12 the plaintiffs: (1) violation of the Immigration and Nationality Act, section 274 (8

13 U.S.C. § 1324), related to smuggling or harboring certain aliens; and (2) violation of 14
15 the mail fraud statute, 18 U.S.C. § 1341.

16 The argument that Zirkle and Matson violated the Immigration and Nationality
17

18 Act (8 U.S.C. § 1324(a)(3)) fails because plaintiffs cannot describe any facts to show

19 2O Zirkle or Matson had "actual knowledge" that individual employees were smuggled

21 into the country by third persons. 8 U.S.C. § 1324(a)(3)(B)(ii).

22

23

Plaintiffs’ contention that Zirkle and Matson have violated the mail fraud

24 statute, 18 U.S.C. § 1341, fails because the mailing of I-9 Forms to the INS 25

26 fraudulent or otherwise - cannot facilitate the hiring of unauthorized aliens.

27 28 Employers are not required by law to mail the forms to the INS. Even if employers did

29 unnecessarily mail I-9’s to the INS, the agency has the information necessary to 3O 31 determine the authenticity of any person’s proof of employment eligibility.

32

33

34

MEMORANDUM SUPPORTIN(~ DISMISSAL - 9

LAW OFFICES OF
HALVERSON & APPLEGATE, P.$.
311 No~w~ Fou~’rH STREEt -- P, O. BOX 227"30 YAKIMA, WASI-UNGTON 98907-2715 PHONE 575-6611

1

A.

Failure to plead facts necessary to state a violation of the

Immigration and Nationality Act.

2

3

The Immigration and Nationality Act prohibits hiring, during any twelve month

4 period, ten or more unauthorized aliens "...with actual knowledge the
5

6 individuals... [were] brought into the United States in violation of this subsection." 8

7 8 U.S.C. § 1324(a)(3)(A) and (B)(ii). Said subsection makes it illegal for any person to

9 bring (smuggle) an alien into the U.S. at a place other than a designated port of entry, 10

11 or to bring into the U.S. an alien who does not have prior authorization to enter.

12 The plaintiffs fail to allege when any Zirkle or Matson employees were smuggled
13

14 into the U.S., wl~ere they were smuggled into the U.S., how they were smuggled into

15 16 the U.S., by whom they were smuggled into the U.S., whether they had authorization

17 to enter the U.S., or how Zirkle or Matson could have had "actual knowledge" of such 18 19 smuggling. Thus, plaintiffs have failed to allege facts necessary to state a violation of

20 S U.S.C. § 1324(a)(3). 21

22

Further, plaintiffs’ anticipated argument that they will be able to investigate

23 these issues through discovery is of no help. The defendants and the court have been
24

25 given absolutely no notice of any facts on which this claimed RICO predicate act is 26 27 alleged.

28

The Federal Rules of Civil Procedure, and LR 3.2 governing RICO cases, require

29

30 that plaintiffs have some factual basis resulting from "reasonable inquiry" under Fed.

31 R. Civ. P. 11 before initiating a RICO complaint and seeking to embark upon a
32

33 discovery fishing expedition. 34

MEMORANDUM SUPPORTING DISMISSAL o l0

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NO~XH FOta~TH SVRE~ -- P, O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHO~,~E 575-6611

Moreover, pursuant to restrictions imposed by the IRCA (discussed below), the

only information that Zirkle or Matson have about their employees’ citizenship and/or

4 alien authorization status is contained in the I-9 Forms. This information is

5 statutorily precluded from being used by the plaintiffs to pursue their RICO claims. 6

7 Pursuant to 8 U.S.C. § 1324a(b)(5), the I-9 employment eligibility verification form,

8 and any information contained in or appended to such form, may not be used for
9

10 purposes other than enforcement of the immigration laws by the government and

11 12 certain explicitly identified sections of Title 18 that do not include RICO. This

13 statutory protection for information employees are compelled by the IRCA to produce 14 15 precludes any discovery of I-9 Forms by the plaintiffs, thereby precluding any

16 discovery about which employees were in the U.S illegally and, therefore, might have
17

18 been smuggled into the U.S. in violation of 8 U.S.C. § 1324(a).

19

20

Thus, any argument by plaintiffs that discovery will permit them to plead facts

21 sufficient to state a prima facie case, is incorrect. The allegation that Matson and 22 23 Zirkle have committed criminal violations of Section 274 of the Immigration and

24 Nationality Act should be dismissed, with prejudice, for failure to state a claim under
25

26 Fed. R. Civ. P. 12(b)(6).

27

28

B. Failure to adequately plead mail fraud violation of RICO.

29

The plaintiffs have also utterly failed to adequately allege a predicate act

30

31 under the mail fraud statute, 18 U.S.C. §1341. In their Complaint, the plaintiffs

32 allege that Zirkle and Matson have "engaged in another scheme in violation of
33

34 RICO - "The I-9 Marl Fraud Scheme" - simultaneously with the Illegal Immigrant

MEMORANDUM SUPPORTING DISMISSAL - 11

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
3]] NOrtH FougrH STm~r -- P. O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

1 Hiring Scheme, in order to effectuate the Illegal Immigrant Hiring Scheme."

2 (Compl. ¶ 33). Plaintiffs allege, again without any factual support, that Zirkle and 3 4 Matson individually, or through Selective, cause I-9 employment eligibility

5 verification forms to be falsified and mailed to the INS to "effectuate" the Illegal 6
7 Immigrant Hiring Scheme. (Plaintiffs’ RICO Case Statement ¶ (e)(3)). Plaintiffs’

8 Complaint also fails on this allegation for several reasons.
9

10

First, and foremost, the plaintiffs have failed entirely to plead sufficient facts

11 12 to satisfy the strict pleading requirements of Fed. R. Civ. P. 9 (b). Rule 9 (b)

13 requires that "the circumstances constituting fraud...be stated with particularity." 14
15 It is uniformly recognized that the rule requires "the identification of the

16 circumstances constituting fraud so that the defendant can prepare an adequate
17

18 answer from the allegations." Schreiber Distrib. Co. v. Serv-Well Furniture Co.,
19 20 Inc., 806 F.2d 1393, 1400 (9th Cir. 1986). Further, this means that the pleader must

21 state the time, place, and specific content of the false representations as well as the 22
23 identities of the parties to the misrepresentations. Id at 1401. In Schreiber,

24 allegations substantially similar to those made by the present plaintiffs were found
25

26 insufficient to withstand a Rule 12(b)(6) motion due to the insufficiency of the
27 28 pleadings under Rule 9.

29

To adequately allege a violation of the mail fraud statute, a plaintiff must

3O

31 show that: (1) the defendants formed a scheme or artifice to defraud; (2) the

32 defendants used the United States mails or caused a use of the United States mails
33

34 in furtherance of the scheme; and (3) the defendants did so with the specific intent

MEMORANDUM SUPPORTING DISMISSAL - 12

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NOaH FoLrgrH STI~’r -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

1 to deceive or defraud. Coronado v. Duncan, Lexis 19025, pg. 5 (N. D. Cal. 1999),

2 citing Rothman v. Vedder Park Mgmt., 912 F.2d 315, 316 (9th Cir. 1990). The 3 4 requirement of specific intent under the statute is satisfied by the existence of a

5 scheme which was "reasonably calculated to deceive persons of ordinary prudence
6

7 and comprehension," and this intention is shown by examining the scheme itself.

8
9 Id.

10

Examining the alleged "marl fraud" scheme in this case, it is crystal clear

11

12 that the plaintiffs have failed to allege a violation of the mail fraud statute with the

13 particularity required by Rule 9 (b). The plaintiffs fail entirely to allege the time, 14

15 place, and specific content of the false representations, as well as the identities

16 17 of the parties to these misrepresentations. Their excuse for this shortcoming is

18 that they must conduct discovery. However, they have given the court no idea of 19 20 what times, places, content and]or parties that discovery may uncover.

21

Plaintiffs also fail to address the statutory directive that no I-9 Forms, nor

22

23 information contained on I-9 Forms, may be used for any purpose other than

24 enforcement of the IRCA by the government. Any attempted discovery intended by
25

26 plaintiffs to investigate the content of I-9 Forms would be futile.

27

28

Moreover, other than their speculative and conclusory allegations, the

29 plaintiffs have given the court no factual support to even infer that: (1) the 3O

31 defendants formed a scheme or artifice to defraud; (2) the defendants used the

32 United States mails or caused a use of the United States mails in furtherance of the
33

34

MEMORANDUM SUPPORTING DISMISSAL - 13

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH FOU~ffH S’rRE~r -- R O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHOebE 575-6611

scheme; and, (3) the defendants did so with the specific intent to deceive or defraud.

In fact, reality belies any such argument.

4

Specifically, the plaintiffs’ erroneously contend that federal law requires

5 employers to mail I-9 forms to the INS. (Plaintiffs’ RICO Case Statement ¶ (e)(3)). 6
7 To the contrary, the I-9 Forms are not mailed to the INS, but instead are retained
8 by the party completing them. See 8 U.S.C § 1324a(b)(3). Even if the plaintiffs’
9

10 contention were accurate, mailing the allegedly fraudulent I-9s to the INS would
11 12 not "further the scheme," but instead would immediately halt it. The INS is the

13 organization with the expertise and information to determine if I-9s are in fact 14 15 valid.8 In fact, Congress expected employers would be able to seek confirmation of

16 the authenticity of alien identification documents from the INS - presumably
17

18 without being accused of mail fraud. See: 1986 U.S. Code Cong. And Adm. News,
19 20 page 5665. Hence, mailing a fraudulent I-9 to the INS would ensure that the

21 "Illegal Immigrant Hiring Scheme" would be discovered, not perpetuated. 22

23

Congress, the Attorney General and the INS know about the existence of,

24 and anticipate that employees will use false employment eligibility documents,
25

26 which facially appear to be valid, to deceive employers. The mailing of I-9 Forms to

27 28 the INS that identify the use of false employment eligibility documents could not,
29 as a matter of law, be considered "reasonably calculated to deceive persons of 3O

31

32

33 8. The INS maintains a Central Index System matching valid Alien Registration Numbers with the identity of the alien
34 authorized to work. See: Villegas-Valenzuela v. Immigration and Naturalization Service, 103 F.3d 805 (9th Cir. 1996).

Also, the INS has the ability, and does obtain verification from the Social Security Administration of the validity of any name

matched with a Social Security Number that is used by any individual as proof of employment eligibildyjcSsk;~S.C. § 1373.

HALVERSON & APPLEGATE, P.S.

MEMORANDUM SUPPORTING DISMISSAL - 14

311 NoR-r. Fotmm STm~ -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715

P~ONE 575-6611

1 ordinary prudence and comprehension" at the INS. Rothman v. Vedder Park

2 Mgmt., supra at 912 F.2d 316.

3

4

Thus, plaintiffs’ "mail fraud" allegations also fail to state a claim under

5 RICO, as a matter of law. Plaintiffs can allege no set of facts that would make
6

7 mailing any I-9 Form to the INS actionable fraud.

8 9 2.

Plaintiffs Lack Standing To Pursue RICO.

10

To recover damages based on a violation of Section 1962(c), plaintiffs must

11

12 show they were injured in their business or property "by reason of’ an offense under

13 Section 1962(c). See 18 U.S.C. § 1964(c). Put differently, the plaintiffs only have 14

15 standing if, and can only recover to the extent that, they have been injured by the

16 17 conduct constituting the violation. Sedima, S.P.R.L.v. Imrex Co., 473 U.S. 479,

18 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). This means that the plaintiffs must 19 20 establish both "but for" and proximate causation. See Holmes v. Securities Investor

21 Protection Corp., 503 U.S. 258, 268, 112 S. Ct. 1311, 117 L. Ed. 2d 532 (1992). 22

23

Proximate causation, the Supreme Court explained in Holmes refers to "the

24 25 judicial tools used to limit a person’s responsibility for the consequences of that

26 person’s acts." Id. The concept of proximate causation thus reflects "’ideas of what 27

28 justice demands, or of what is administratively possible and convenient." Holmes,

29 503 U.S. at 268 (citation omitted).
3O

31

In general, a direct relationship must be shown between the injury asserted

32 33 by the plaintiff and the injurious conduct alleged. Stationary Eng’rs Local 39

34 Health and Welfare Trust Fund v. Philip Morris, Inc., Lexis 8302, pp. 10-11 (N.D.

MEMORANDUM SUPPORTING DISMISSAL - 15

LAW OFFICES OF
HALVERSON & APPLEGATE, P.$.
311 Nom~ Fo~ STREE-r -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

Cal. 1998). ’~hus, a plaintiff who complained of harm flowing from the misfortunes 1

2 visited upon a third person by the defendant’s acts was generally said to stand too

3 4 remote a distance to recover." Holmes at 268-69. In addition, speculative injuries

5 do not serve to confer standing under RICO unless they become concrete and actual.
6 7 Dnagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1311 (9th Cir. 1992), cert.

8 denied, 123 L. Ed. 2d 266, 113 S.Ct. 1644 (1993).
9

10

The law generally limits recovery under RICO claims to directly and

11 12 concretely injured plaintiffs for several reasons:

13

First, the less direct an injury is, the more difficult it

14

becomes to ascertain the amount of the plaintiffs damages

15

attributable to the violation, as distinct from other,

16

independent factors... Second, .. recognizing claims of the indirectly injured would force courts to adopt complicated

17

rules apportioning damages among plaintiffs removed at

18

different levels of injury from the violative acts, to obviate

19

the risk of multiple recoveries .... And, finally, the need to

grapple with these problems is simply unjustified by the

20

general interest in deterring injurious conduct, since directly

21

injured victims can generally be counted on to vindicate the

22

law as private attorneys general, without any of the

23

problems attendant upon suits by plaintiffs injured more

24

remotely.

25

26 Holmes, 503 U.S. at 269-270.

27

28

"A defendant who violates Section 1962 is not liable for treble damages to

29 everyone he might have injured...’" Sedima, 473 U.S. at 196-97 (citation omitted). 3o 31 Indeed, RICO was intended to combat organized crime, not to provide a federal

32 cause of action and treble damages to every tort plaintiff. Oscar v. University 33
34 Students Co-Operative Ass’n., 965 F.2d 783, 786 (9th Cir. 1992).

MEMORANDUM SUPPORTING DISMISSAL - 16

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 North FougrH S’mEET -- P. O. BOX 22730
YAKIMA, WASHINGTON 98907-2715 PHOh’E 575-6611

The complaint itself makes abundantly clear the plaintiffs have not been 1

2 directly injured by "the conduct constituting the violation" of RICO. Sedima, 473
3 4 U.S. at 496. The business operations of Zirkle and Matson "require unskilled, low-

5 wage laborers" for manual labor tasks. (Compl. ¶ 21); jobs in which the plaintiffs 6 7 have been employed. The Complaint alleges that Zirkle and Matson have been able

8 to exploit unauthorized aliens, by paying them lower wages, and defraud the INS.
9

10 The plaintiffs claim this conduct injured them by "depressing" the wages they

11 12 agreed to and for which they were willing to work. (Compl. ¶¶ 46, 56).

13

However, there is no allegation the plaintiffs were paid less than other

14

15 similarly situated workers in other similarly situated agricultural facilities, or that

16 they were paid less than they would have been paid at some other job in any 17

18 industry requiring their level of skill in the Yakima Valley. The plaintiffs do not

19 stand in a position any different than any other "unskilled, low-wage laborer"
20

21 employed in Central Washington during the relevant time period.

22

23

It would be difficult to ascertain the amount of the plaintiffs’ damages

24 attributable to the alleged RICO violation, as distinct from other independent 25

26 factors such as the nature of the work, the market value of the employees’ skills,

27 the wage that the free market has determined, and whether additional labor costs
28

29 could be passed on to the consumer. Thus, the first reason articulated by the 30 31 Supreme Court in Holmes, at 503 U.S. 269-270, for denying standing based on

32 indirect injuries, applies to this case. 33

34

MEMORANDUM SUPPORTING DISMISSAL - 17

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH FOOm’H STREE’r -- P. O. BOX 22730 YAKIMA, WASHINGTON 9890%2715 PHONE 575-6611

Plaintiffs claim that they, and the class they represent, are legally

authorized to work in the U.S., and that they were willing to work for the wage rate

4 paid by Zirkle and Matson. The Complaint fails to explain how, or why, Zirkle or

5 Matson would have been motivated to offer a wage rate higher than that which 6 7 authorized workers were willing to accept. And the Complaint fails to allege that

8 plaintiffs could earn a higher wage with their level of skills at any other fruit 9

10 warehouse, fast food restaurant, supermarket, department store, or any other

11 occupation in which they may be inclined to work. The court should conclude the
12

13 plaintiffs have failed to adequately allege any causal connection, direct or
14 15 otherwise, between the alleged RICO violations and their claimed injury.

16

Moreover, there is no need to grapple with these problems of ascertaining

17

18 speculative damages because the INS can be counted on to vindicate the law. Thus,

19 2O the third reason articulated in the Holmes decision, at 503 U.S. 269-270, for

21 refusing to recognize RICO standing based on indirect injuries applies equally to 22 23 this case.

24

Plaintiffs also rely on an unsubstantiated assumption/generalization that

25

26 unauthorized aliens are willing to accept wages that are "significantly lower" than

27 wages would be in a labor market comprised solely of legally authorized workers.
28

29 This is too tenuous a basis for asserting proximate causation, considered in light of

30 31 the legal right of unauthorized aliens to engage in union organizing and concerted

32 activity for the purpose of the betterment of wages and working conditions. Sure33

34 Tan, Inc. v. NLRB, 467 U.S. 883 (1984). See also: NLRB v. Kolkka, 170 F.3d 937

MEMORANDUM SUPPORTING DISMISSAL - 18

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH FOUm-H SmEEr -- E O. BOX 22730 YAKIMA, WASHINGTON 98907-2715
PHONE 575-6611

1 (9th Cir.) 1999; Contreras v. Corinthian Vigor Insurance Brokerage, 25 F. Supp. 2d

2 1053 (N.D.CA 1998). 3

4

The defect in plaintiffs’ claim is much like that in Irnagineering, Inc. v.

5 Kiewit Pacific Co., 976 F.2d 1303 (9th Cir. 1992), cert. denied, 123 L. Ed. 2d 266, 113 6

7 S.Ct. 1644 (1993). In Irnagineering, a plaintiff class of minority and woman owned

8 9 business enterprises (’2VIWBEs’) asserted a civil RICO claim against Kiewit, a

10 prime contractor, alleging that Kiewit engaged in a "conduit scheme" to evade 11 12 federal and state regulations requiring prime contractors to employ MWBEs on

13 public works contracts. The plaintiffs contended that they were the MWBE
14

15 subcontractor for the complying contractor with the lowest bid on at least one
16 17 project improperly awarded to Kiewit. Alleging that they "lost the profits that they

18 would have earned on these projects but for Kiewit’s unlawful use of the conduit 19 20 scheme" the plain~ffs sought relief under RICO, based on the predicate crime of

21 marl fraud. Id at 1306.
22

23

Invoking the Supreme Court’s determination that RICO requires a "direct

24 25 relation" between the predicate crime and the asserted injury, see Holmes, 503 U.S.

26 at 268, the Ninth Circuit Court of Appeals affirmed the dismissal of the plaintiffs’ 27 28 complaint for failure to state a claim. See Irnagineering at 1312. Although the

29 Court assumed for purposes of argument that the plaintiffs could establish ’q3ut for"
30

31 causation, it found it much more difficult to "take the next step" and find a direct

32 33 relationship between Kiewit’s conduit scheme and the plaintiffs’ failure to earn

34 certain profits on the subcontracts. Id. The Court found that "direct harm," if there

MEMORANDUM SUPPORTING DISMISSAL - 19

L~W OFFICES OF
HALVERSON & APPLEGATE, P.S. 311 No~ Fo~ S~ -- P. O. Bo~ 22730
YAKIMA, WASHINGTON 98907-2715
PHO~,a~ 575-6611

was any "direct harm," ran not to the plaintiffs, but to the prime contractors who
1
2 lost out on the projects to Kiewit. Id. Since it was the "intervening inability" of the 3 4 prime contractors to secure the contracts that was the direct cause of the plaintiffs’
5 injuries, under Holmes the MWBE plaintiffs lacked the direct relationship 6
7 necessary to show that Kiewit proximately caused their injuries. Id.
8 Plaintiffs’ claim here is just as indirect. Plaintiffs have accused Zirkle and
9
10 Matson of hiring undocumented alien workers in violation of the federal 11 12 immigration laws. Like Imagineering the plaintiffs assert that defendants (i) defied
13 their obligations under federal law in order to enhance their ability to run 14 15 profitable businesses, (ii) negotiated at arms length, and (’fii) thereby improved
16 their standing in a competitive marketplace. The "injury" alleged by plaintiffs, like
17
18 the "injury" suffered by the Imagineering plaintiffs, was necessarily contingent on 19 20 numerous intervening factors, including: (1) Zirkle’s and Matson’s ability to find
21 undocumented alien workers who would allegedly accept less than the market 22 23 wage, (2) their ability to avoid detection for violating the immigration laws, (3) their
24 ability to retain sufficient workers, including the plaintiffs, willing to work at
25
26 allegedly "depressed wages", (4) market factors dictating the wage rate that was 27 28 fair and equitable for unskilled manual labor, and (5) perhaps more significant,
29 independent market factors dictating the profitability of growing and selling fresh 3O 31 fruit. This inescapable myriad of contingencies that separates Zirkle’s and
32 Matson’s alleged hiring of undocumented workers from an employee’s entirely 33
34 voluntary decision regarding whom to work for and what wage to accept, powerfully

MEMORANDUM SUPPORTING DISMISSAL - 20

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NogrH FoLrm~ STREET -- e. O. Box 22730
YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

1 demonstrates that there is no "direct relation" between the alleged predicate acts

2 and the injury alleged.

3

4

It was arms-length negotiating that produced the wage rate for which plaintiffs

5 and other legally authorized workers were employed by Zirkle and Matson. The 6

7 plaintiffs’ purported injury is simply too indirect and attenuated to proceed. Because

8 the racketeering predicates alleged in the complaint could not have directly caused the
9

10 injury alleged by plaintiffs, the Complaint should be dismissed for failure to state a
11 12 claim. Moreover, because this deficiency cannot be cured by amendment of the

13 complaint, plaintiffs should not be granted leave to amend their complaint. Bonnano 14 15 v. Thomas, 309 F. 2d 320, 322 (9th Cir. 1962). To allow the plaintiffs to further

16 speculate on their injuries would simply condone the type of speculation RICO
17

18 disdains. Ocsar v._University Students Co-Operative Ass’n, 965 F. 2d 783, 787 (9th Cir. 19 20 1992).

21 3. 22
23 24

Plaintiffs’ Claims Are Prohibited By The Comprehensive Enforcement Scheme Within The Immigration Reform and Control Act.
In addition to prohibiting the employment of persons known to be unauthorized

25 aliens, the IRCA also requires that employees provide, and employers document 26

27 inspection of, papers evidencing the employee’s eligibility for employment in the U.S.

28 See: 8 U.S.C. § 1324a(b). Regarding the employment of aliens and an employer’s
29

3O obligation to attempt to verify workers’ employment eligibility, the IRCA creates a 31 32 comprehensive scheme for enforcement by the federal government. Said enforcement

33 scheme requires the provision of notice to employers (8 U.S.C. § 1324a(e)(3)), an 34

opportunity for a hearing before the imposition of any penalty (Id.), administrative

LAW OFFICES OF

MEMORANDUM SUPPORTING DISMISSAL - 21

HALVERSON & APPLEGATE, P.S. 3x~ No~ FO~T. s~E~ - P. o. Box zwo
YAKIMA, WASHINGTON 98907-2715

IMo~a~ 575-6611

1 appellate review, and judicial review by a federal Court of Appeals. 8 U.S.C. §

2 1324a(e)(7) & (8).

3

4

While prohibiting the knowing employment of unauthorized aliens and

5 requiring employers to engage in inspection of employment eligibility documents, the 6

7 IRCA also provided for two collateral (but equally important) principles. The IRCA

8 prohibits discrimination based on national origin or citizenship status (8 U.S.C. §
9

10 1324b), and acknowledges that employers cannot be expected to become experts at
11 12 recognizing false or forged employment eligibility documents,o Consequently, the IRCA

13 directs that: 14

15

(1) employers are only to determine that employment eligibility documents

16

reasonably appear on their face to be genuine (8 U.S.C. § 1324a(b)(1)(A)),

and 17

18

(2) prohibits employers from requesting additional or different documents once

19

an employee has presented any facially valid document. 8 U.S.C. §

20

1324b(a)(6).

21 These provisions were specifically intended to preclude the need for employers to be 22

23 "unduly concerned" about the validity of documents employees present to establish

24 eligibility for employment. See: 1986 U.S. Code Cong. And Adm. News, page 5666.
25

26 Thus, the IRCA carefully prescribes what employers and their representatives can, and
27 28 cannot do regarding the employment authorization status of employees and

29 prospective employees. 30
31

32

33 9. In enacting the IRCA, the House Judiciary Committee explicitly stated: "It is not expected that employers ascertain the legitimacy of documents presented during the verification process." Further, the Committee quoted with approval the
34 following statement from the INS: "We will direct such employers not to make critical judgments of the authenticity of documents .... " 1986 U.S. Code Cong. And Adm. News, page 5665.

MEMORANDUM SUPPORTING DISMISSAL - 22

LAW OFFICES OF
HALVERSON & APPLEGATE, ES.
311 NoRtH FOURT~ STP~’T -- P. O. BOX 22730 YAKIMA, WASHJNGTON 98907-2715 Pr~O~E 575-6611

Plaintiffs’ lawsuit is a wrongful attempt to create a private cause of action based

on Zirkle’s and Matson’s efforts to comply with IRCA’s complicated statutory scheme.

4 Previous efforts to assert similar private causes of action for employers’ alleged

5 violation of immigration laws have been uniformly rejected. Nieto-Santos v. Fletcher 6 7 Farms, 743 F.2d 638 (9th Cir. 1984)(no private right of action under the Immigration

8 and Nationality Act); Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975)(same); 9

10 U.S. v. Richard Dattner Architects, 972 F.Supp.738 (S.D.N.Y. 1997).

11

12

The plaintiffs’ allegations directly challenge Zirkle’s and Matson’s efforts to

13 verify their employees’ employment eligibility under the IRCA. Allowing plaintiffs to 14

15 proceed with their claims would upset the balance Congress intended to achieve

16 between requiring employer efforts to verify employees’ work eligibility, while
17

18 precluding any need for cautious employers to discriminate against prospective

19 20 employees whose appearance or language skills indicate possibly foreign national

21 origin. The intent of Congress to protect this balance is clearly demonstrated, in part, 22

23 by the explicit restriction imposed on use of the I-9 employment eligibility verification

24 forms, or of any information contained in or appended to such forms. See: 8 U.S.C. §
25

26 1324a(b)(5).

27

28

The I-9 Forms retained by Zirkle and Matson cannot be used for any purpose

29 other than the federal government’s enforcement of the Immigration and Nationality
3O

31 Act, the IRCA or specified criminal statutes that do not include RICO. Id.

32 Accordingly, the plaintiffs’ suggestion that they intend to conduct discovery of I-9
33

34

MEMORANDUM SUPPORTING DISMISSAL o 23

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NOmH FOL~TH STREE’r -- P. O. BOX 22730 YAKIMA, WASHINGTON 98907-2715 PHO~ 575-6611

Forms, or information contained in I-9 Forms1° would violate federal law, and cannot

be allowed.

4

This court should soundly reject the plaintiffs’ basic presumption that they may,

5 independent of the INS, investigate the work authorization status of Zirkle’s and 6 7 Matson’s employees. The IRCA creates carefully defined employer obligations and

8 employee rights and protections, and a comprehensive scheme for enforcement by 9

10 agencies of the federal government. Consequently, the attempt by plaintiffs to

11 independently enforce the immigration laws through RICO should be deemed
12

13 preempted by the IRCA. Cf. Danielson v. Burnside-Ott Aviation Training Center, Inc., 14 15 941 F.2d 1220, 1228 (D.C. Cir. 1991)(detailed enforcement scheme of Service Contract

16 Act preempts area of prevailing wage law, to exclude RICO claims); citing 17
18 Miscellaneous Service Workers v. Philco-Ford Corp., 661 F.2d 776 (9th Cir. 1981); see

19 also: McDonough v. Genecorp, Inc., 750 F. Supp. 368 (S.D. Ill. 1990)(National Labor
20

21 Relations Act preempts RICO mail and/or wire fraud claims based on conduct arguably 22 23 protected or prohibited by NLRA).

24

Plaintiffs’ Complaint should be dismissed, with prejudice, to avoid interference

25

26 with the dual purposes of the IRCA, and to uphold the explicit protection Congress

27 afforded to the information that employees are required by the IRCA to provide to their
28

29 employers. 3O

31

32

33

34 10. Plaintiffs explicitly propose to attempt conducting such discovery in their Complaint at ¶ 38, and in Plaintiffs’ RICO Case

Statement at ¶ (u)(2).

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.

MEMORANDUM SUPPORTING DISMISSAL - 24

311 NORTH FOURTH STR~ -- P. O. BOX 2Zr30 YAKIMA, WASHINGTON 98907-2715

PHONE 575-6611

factors usually warrant a courts decision to decline exercising supplemental

jurisdiction over remaining state law claims).

4

CONCLUSION

5

For the reasons set forth above, Zirkle Fruit Company’s and Matson Fruit

6 Company’s motion to dismiss the complaint should be granted.
7

8

Respecthtlly submitted this-~ ~ ~ay of May, 2000.

9

10

11

12

13

14

KIRK A. EHLIS WSBA#22908

15

Halverson & Applegate, P.S.

16

Attorneys for Defendants Matson Fruit \

17

Company and Zirkle Fruit Company

18

19

20

21

W

YER (WSBA#1099)

Meyer, Fl~egge & Tenney, P.S.

22

Co-counse~for Defendant Zirkle Fruit

23

Company

24

25

26

27

28

29

30

31

32

33

34

MEMORANDUM SUPPORTING DISMISSAL - 25

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 No~’~ Fo~ STP,~-’~ -- P. O. Box 22730 YAKIMA, WASHINGTON 98907-2715 I~O~,~E 575-6611

 </s> Steve W. Berman, WSBA #12536 Andrew M. Volk, WSBA #27639 Kevin P. Roddy HAGENS BERMAN LLP
1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (206) 623-7292

FILL=O t~q
U.$. DISTRICT OO1JR’T
JIJN 1 4 2000

Howard W. Foster JOHNSON & BELL, LTD. 55 E. Monroe St., Suite 4100 Chicago, IL 60603
7 (312) 372-0770

JAME~ R. LARSEN, CLERK - 8PO~DKAENPU~oTNY

8 Attorneys for Plaintiffs

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA MENDIOLA, individually and on behalf of

13 all others similarly situated,

No. 00-3024-FVS

14

Plaintiffs,

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO DISMISS

15

AND FOR A STAY OF DISCOVERY

16 ZIRKLE FRUIT CO., a Washington corporation, MATSON FRUIT
17 COMPANY, a Washington corporation and SELECTIVE EMPLOYMENT
18 AGENCY, INC., a Washington corporation,
19 Defendants.
20

(CLASS ACTION; DEMAND FOR JURY TRIAL)

21

22

23

24

25

26

134g10 0014MT’NDO~

1

TABLE OF CONTENTS

2

3

INTRODUCTION .....................................................................................................1

4
5 III.
6

THE DEFENDANTS CANNOT MEET THEIR HEAVY BURDEN UNDER RULE 12(B)(6) ...........................................................................................................4
THE COMPLAINT SUFFICIENTLY ALLEGES THE NECESSARY ELEMENTS OF RICO PREDICATE ACTS ..........................................................4..

7

A. Plaintiffs Allege Violations Of § 274 Of The Immigration and

Nationality Act (8 U.S.C. § 1324(a)(3)(A)) ..................................................5...

8 1. Plaintiffs Need Not Allege The Facts Demanded By Defendants6.....

9 2. Defendants’ Argument is Inconsistent with Rule 8 .....................8......

10 B. Plaintiffs Have Adequately Alleged Mail Fraud ...................................1..0....

11 1. Mailing Knowingly False I-9 Forms Constitutes a Scheme to

12

Defraud .............................................................................................1. 0

13

2. Plaintiffs Meet The Requirements Of Rule 9 ..............................1..1...

14

3. Plaintiffs Can Discover Defendant’s 1-9 Forms ..........................1...6..

15 IV. PLAINTIFFS HAVE STANDING TO SUE UNDER RICO ................................1..9

16

A. Because Plaintiffs Allege a "Direct" Injury, Holmes Supports

Their Claim ..................................................................................................1. 9

17

B. The Defendants’ Attempt to Apply Holmes Is Legally and Factually

18

Erroneous ......................................................................................................21

19

C. Holmes’ Three-Part Analysis for "Indirect" Injury Further

Demonstrates That Plaintiffs Have RICO Standing .............................2..2...

20 D. Imagineering Provides No Help To Defendants Here ..............................2..3.

21 E. The National Labor Relations Act Has No Bearing On This Case .......2..4...

22 PLAINTIFFS’ RICO CLAIMS ARE NOT PREEMPTED ...................................2..5.

23 PLAINTIFFS STATE A VIABLE CLAIM FOR CIVIL CONSPIRACY .............2..8.

24

A. The Complaint Properly Pleads A Claim For Civil Conspiracy Under

25

Washington Law .........................................................................................2..8

26

B. Plaintiffs’ Civil Conspiracy Claim Is Not Preempted By The IRCA ..3..0......

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO DISMISS

001348.10@314 MTN.DOC

-i-

1301 FIFTH AVEN~dE, SUITE 2990 ¯ SEATTLE, WA 98101 TELEPHONE (206}623-7292 ¯ FACSIMILE (206)6’t3-0594

1

Because The IRCA Contains An Express Preemption Clause,

Any Arguments Based On "The Comprehensive Federal

2

Scheme" Cannot Prevail .................................................................3...0

3

Because Plaintiffs Bring A Civil Conspiracy Claim For

Damages, And Not For Sanctions, 8 U.S.C. § 1324a(h)(2)

4

Poses No Bar To Their Claim ..........................................................3..1

5 VII. DEFENDANTS PROVIDE NO PROPER BASIS FOR STAYING DISCOVERY ........................................................................................3. 3

6

no

Defendants Have Failed to Satisfy Their Burden of

7

Demonstrating They Are Entitled to a Stay ..........................................3..4...

8

Defendants Have Made No Showing That Discovery Would

Be Unduly Burdensome ..................................................................3..4

9 Defendants’ Alleged Privacy Concerns Can Provide No

10

Basis For Staying Discovery ...........................................................3..4

11

Defendants Have Not Demonstrated That Their Motion Will

Dispose Of The Entire Case ............................................................3..5

12 CONCLUSION ........................................................................................................35

13

14

15

16

17

18

19

20

2t

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348 l0 0014 MTN DOC

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I~.01 FIFTH AVENUE, SUITE 2~O0 ¯ SF~ATTLE, WA 96101 TELEFHONE (206)623-72~;2 ¯ FACSIMILE ~’206}62B*0594

1

TABLE OF AUTHORITIES

2

CASES

3 Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607 (1944) ................................................................................................32

4 Associated General Contractors, Inc. v. California State Council of Carpenters,

5

459 U.S. 519 (1983) ...........................................................................................20,21

6 Austin v. United States, 509 U.S. 602 (1993) ................................................................................................32

7 Bach v. Mason,

8

190 F.R.D. 567 (D. Idaho 1999) ..........................................................................9,10

9 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) ....................................................................................7

10 Boudette v. Barnette,

11

923 F.2d 754 (9th Cir. 1991) ..................................................................................28

12 California Federal Savings & Loan Association v. Guerra, 479 U.S. 272 (1987) ...........................................................................................30,31

13 California v. Walters,

14

751 F.2d 977 (9th Cir. 1984) .................................................................................3. 3

15 Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) ...........................................................................................30,31

16 Cohn v. Taco Bell Corp.,

17

147 F.R.D. 154 (N.D. Ill. 1993) ........................................................................3. 3,34

18 Colony At Holbrook v. Strata G.C., Inc., 928 F. Supp. 1224 (E.D.N.Y. 1996) .........................................................................6

19 Cooper v. Pickett,

20

137 F.3d 616 (9th Cir. 1997) .................................................................................1. 6

21 Corbit v. J.I. Case Co., 70 Wash. 2d 522, 424 P.2d 290 (1967) .................................................................2. 9

22 DanieIson v. Burnside.OTT Aviation Training Center, Inc.,

23

941 F.2d 1220 (D.C. Cir. 1991) ..............................................................................26

24 Deschamps v. Luther, 64 Wash. 2d 728, 393 P.2d 945 (1964) .................................................................2. 9

25 Ernst & Ernst v. Hochfelder,

26

425 U.S. 185 (1976) ................................................................................................32

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348.10 0014 M~N DOC

- IIi -

Fecht v. Price Co., 70 F.3d 1078 (9th Cir. 1995), cert. denied, 517 U.S. 1136 (1996) ........................ 11
Fobbs v. Holy Cross Health System Corp., 29 F.3d 1439 (9th Cir. 1994), cert. denied, 513 U.S. 1127 (1995) ........................ 22

Gerimonte v. Case, 42 Wash. App. 611, 712 P.2d 876 (1986) ..............................................................2. 9

6 GilIigan v. damco Development Corp., 108 F.3d 246 (9th Cir. 1997) ...................................................................................4.

7 Gray v. First Winthrop Corp.,

8

133 F.R.D. 39 (N.D. Cal. 1990) .................................................................2,23,33,34

9 In re Hanford Nuclear Reservation Litigation, 780 F. Supp. 1551 (E.D. Wash. 1991) ...................................................................1. 2

10 Hellon & Associate, Inc. v. Phoenix Resort Corp.,

11

958 F.2d 295 (9th Cir. 1992) .................................................................................2. 8

12 Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992) ........................................................................................passim

13 Imagineering, Inc. v. Kiewit Pacific Co.,

14

976 F.2d 1303 (9th Cir. 1992) ...............................................................................2. 3

15 Kiblen v. Retail Credit Co., 76 F.R.D. 402 (E.D. Wash. 1977) ..........................................................................3. 3

16 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,

17

507 U.S. 163 (1993) ..................................................................................................7

18 Lewis Pacific Dairymens Association v, Turner, 50 Wash. 2d 762, 314 P.2d 625 (1957) .................................................................2. 8

19 Malone v. White Motor Corp., 435, U.S. 497 (1978) ................................................6,13,30

20

McDonough v. Gencorp, Inc.,

21

750 F. Supp. 368 (S.D. Ill. 1990) ..........................................................................2. 7

22 McLaughIin v. Anderson, 962 F.2d 187 (2d Cir. 1992) .....................................................................................7

23 Moore v. Kayport Package Express, Inc.,

24

885 F.2d 531 (9th Cir. 1989) .................................................................................1. 3

25 Neubronner v. MiIken, 6 F.3d 666 (9th Cir. 1993) ...................................................................................9,13
26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348. ~0 0014 MTN

- iv -

1 Nieto-Santos v. Fletcher Farms, 743 F.2d 638 (9th Cir. 1984) .................................................................................2. 5

2 Peloza v. Capistrano Unified Sch. District,

3

37 F.3d 517 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995) ...........................

6

4 Richards v. Stephens, 118 F.R.D. 338 (S.D.N.Y. 1988) .............................................................................18

5

Rose v. Bartlett,

6!

871 F.2d 331 (3d Cir. 1989) .....................................................................................8

7 Rotella v. Wood, __ U.S. __, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000) .....................................27

8 Rothman v. Vedder Park Management,

9

912 F.2d 315 (9th Cir. 1990) ..................................................................................10

10 Schreiber Distributing Co. v. Service-Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986) ................................................................................11

11

Sears v. International Brotherhood of Teamsters, C., S & H.,

12

8 Wash. 2d 447, 112 P.2d 850 (1941) ....................................................................29

13 Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) ...........................................................................................26,27

14 Semegen v. Weidner,

15

780 F.2d 727 (9th Cir. 1985) ..................................................................................11

16 St. Regis Paper Co. v. United States,

368 U.S. 208 (1961), rehg denied, 368 U.S. 972 (1962) ........................................

17

17 Sterling Bus. Forms v. Thorpe,

18

82 Wash. App. 446, 918 P.2d 531 (1996) ..............................................................2. 9

19 Terracom v. Valley National Bank, 49 F.3d 555 (9th Cir. 1995) .....................................................................................4.

20

Twin City Fire Insurance Co. v. Employers Insurance of Wausau,

21

124 F.R.D. 652 (D. Nev. 1989) .......................................................................passim

22 United States ex reI. O’Keefe v. McDonnell Douglas Corp., 918 F. Supp. 1338 (E.D. Mo. 1996) ...................................................................12,14

23 United States ex rel. Roby v. Boeing Co.,

24

184 F.R.D. 107 (S.D. Ohio 1998) ......................................................................14,15

25 United States v. Board of Education, 636 F. Supp. 1046 (N.D. Ill. 1986) ........................................................................3.4
26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

001348 10 0014 MTN. DOI~

-V-

1501 FIFT]{ AVENUE, SUITE 2900 ¯ 3EATTLE, WA 98101 TELEPHONE (206)62~-7292 ¯ FACSIMILE (~06)623-0594

1 United States v. Busher,

817 F.2d 1409 (9th Cir. 1987) ................................................................................11

2

United States v. Halper,

3

490 U.S. 435 (1989) ................................................................................................32

4 United States v. Kim,

193 F.3d 567 (2d Cir. 1999) ................................................................................6,10

5

United States ex rel. Thompson v. Columbia/HCA HeaIthcare Corp.,

6

20 F. Supp. 2d 1017,1049 (S.D. Tex. 1998) ...........................................................15

7 United States v. Turkette,

452 U.S. 576 (1981) ................................................................................................27

8 Wegbreit v. Marley Orchards Corp.,

9

793 F. Supp. 957 (E.D. Wash. 1991) ....................................................................1. 2

10 Wilkins ex tel. United States v. Ohio, 885 F. Supp. 1055 (S.D. Ohio 1995) ......................................................................16

11

Wool v. Tandem Computers, Inc.,

12

818 F.2d 1433 (9th Cir. 1987) ...................................................................... 12,13,14

13 Yamaguchi v. United States Department of the Air Force,

109 F.3d 1475 (9th Cir. 1997) ..................................................................................7

14

Young v. United States,

15

149 F.R.D. 199 (S.D. Cal. 1993) .............................................................................17

16

STATUTES

17 8 U.S.C. § 1324(a) ............................................................................................................... 5

18 8 U.S.C. § 1324a(3)(A) .................................................................................................. 1,2,5

19 8 U.S.C. § 1324a(3)(B) ........................................................................................................5

20 8 U.S.C. § 1324a(b)(5) ........................................................................................ 16,18,25,31

21 8 U.S.C. § 1324a(d)(4) .......................................................................................................16

22 S U.S.C. § 1342a0a)(2) .......................................................................................................31

23 Pub. L. 104-132 § 433 .........................................................................................................1

24 18 U.S.C. § 1961 et seq ................................................................................................

1,5,26

25 18 U.S.C. § 1964 ................................................................................................................26

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001148.|00014 MTN DOC

" vi -

1

RULES

2 Fed. R. Civ. P. 8 ..........................................................................................................2,6,7,9

3 Fed. R. Civ. P. 9(b) ....................................................................................................passim

4 Fed. R. Civ. P. 12(b)(6) .........................................................................................2,18,33,35

5 Fed. R. Civ. P. 26(b)(1) .................................................................................................17,18

6 Fed. R. Civ. P. 37 ..............................................................................................................32

7 OTHER
8 Wright & Miller, FEDERAL PRACTICE & PROCEDURE, Civil 2d § 1357 (1990) .............4......
9

10

11

12

13

14

15

16

17

18

19

20

2t

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
0013.48 ~0 0~14 MT~

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1

Plaintiffs, Olivia Mendoza and Juana Mendiola, individually and on behalf of all

2 others similarly situated, (hereafter "plaintiffs"), submit the following brief in

3 opposition to defendants’ Motion to Dismiss and For A Stay of Discovery ("the

4 Motion").1

5

I. INTRODUCTION

6

Plaintiffs have brought this proposed class action in order to compensate the

7 victims of defendants’ long-standing practice of employing work forces of illegal

8 immigrant laborers at their apple growing and fruit packing facilities. These victims,

9 employees of Matson Fruit Company ("Matson") and Zirkle Fruit Co. ("Zirkle") who are

10 legally authorized to work in the U.S., are paid depressed wage rates because the two

i1 companies knowingly employ large numbers of illegal immigrants in order to bring

12 down wages for all employees. The Complaint alleges this practice ("the illegal

13 immigrant hiring scheme") violates the Racketeer influenced and Corrupt

14 Organizations Act (RICO), 18 U.S.C. § 1961 et seq., which was amended in 1996 to

15 prohibit precisely this type of activity? The Complaint further alleges a civil

16 conspiracy claim under Washington common law in that Matson and Zirkle have

17 conspired with defendant Selective Employment Agency, Inc. (Selective) to violate the

I8 Immigration and Nationality Act, and this conspiracy has caused the plaintiffs to

19 suffer damages in the form of depressed wages.

20

21

22

~ All three defendants have joined in the Motion. However, plaintiffs’ RICO

23 claims are brought only against Matson and Zirkle, and not against Selective

24 Employment Agency.

25

2 On April 24, 1996, as part of Pub. L. 104-132 § 433, Congress amended RICO to

26 make 8 U.S.C. § 1324(a)(3)(A) and related violations predicate offenses.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
00134~ 10 0014 MTN

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t3~)t F[WfH AV[~NUE, SUITE 2900 ¯ SEATTLE, WA 98101 TELEPHONE (206)623-7292 ¯ FACSIMILE (206)623-t)594

1

The defendants make several arguments in support of their contention that the

2 complaint is worthy of dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state

3 a cause of action. However, as none of these arguments is supported by any applicable

4 authority, defendants’ motion should be denied in its entirety.

5

First, the defendants claim that plaintiffs fail to adequately allege any predicate

6 act under RICO. In support of this argument, the defendants argue that it is not

7 enough for plaintiffs to allege that the defendants have knowingly employed and

8 harbored more than the requisite number of illegal aliens to constitute the predicate

9 act as set out in 8 U.S.C. § 1324(a)(3)(A). Rather, say the defendants, plaintiffs are

10 required to name each and every unauthorized employee, and inform the Court as to

11 where, when and how each alien entered the country. The defendants simply ignore

12 that Rule 8 of the Fed. R. Civ. P. calls for notice pleading, and not the prolix they

13 demand. Because courts are clear that Rule 8 applies to non-fraud RICO predicate

14 acts, the defendants’ argument cannot prevail. As for the allegations of mail fraud (in

15 mailing false I-9 forms to the INS), the defendants are correct that the heightened

16 standards of Rule 9 apply. Nonetheless, the Ninth Circuit has squarely held that

17 allegations similar to those made by the plaintiffs are sufficient to satisfy Rule 9

18 where, as here, the detailed evidence of the fraud is in the exclusive possession and

19 control of the corporate defendants)

20

Second, the defendants claim that the plaintiffs lack standing to sue under RICO

21 because they have failed to allege a "direct" injury as required by the United States 22 Supreme Court in Holmes.4 As the defendants ignore, however, the rule of Holmes only

23

24

~ As the plaintiffs also demonstrate, the 1-9 forms themselves are fully

25 discoverable.

26

4 Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348 10 0014 MTN DOC

-2-

1 applies where the plaintiffs are indirect victims of a harm directly inflicted upon othe

2 parties. In such circumstances, where the plaintiffs’ harm is wholly derivative of harm

3 inflicted on others, the plaintiffs are said to be too "remote," and their harm too

4 "indirect." In stark contrast, the plaintiffs here are the sole and direct victims of the

5 defendants’ successful effort to drive down wages through the illegal hiring scheme.

6 Accordingly, Holmes cannot bar plaintiffs’ suit here.

7

Third, the defendants assert that the plaintiffs’ RICO claims are somehow

8 preempted by the "comprehensive enforcement scheme" established by the

9 Immigration Reform and Control Act ("IRCA.") This argument ignores the fact that, in

10 making violations of immigration law RICO predicates, Congress explicitly authorized 11 private civil actions for monetary damages such as that brought by plaintiffs here.

12 Moreover, there is simply no conflict between the IRCA (which imposes certain

13 requirements on employers) and plaintiffs’ suit under RICO (which seeks to

14 compensate the victims of the defendants’ violations of immigration law).

15

Fourth, while the defendants concede that the plaintiffs have stated a claim for

16 civil conspiracy under Washington State common law, they argue that the claim is 17 preempted by the IRCA. However, the express preemption clause of the IRCA (which

18 defines the full preemptive scope of the IRCA) preempts only criminal and civil laws

19 that impose "sanctions," and says nothing about common law actions for damages. On

20 its face, then, the IRCA does not preempt the plaintiffs’ claim, and the defendants’

21 motion should be denied.

22

Finally, in an effort to stall plaintiffs’ progress in this case, the defendants have

23 filed a separate motion to stay discovery. Incredibly, while courts require a strong

24 showing of burden and/or extreme likelihood of success on the merits of a dispositive

25 motion, the defendants proffer no showing whatsoever. Instead, defendants suggest

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

001348 l0 01)~4 MTN DOC

-3-

1 that "privacy concerns" with respect to some information the plaintiffs may seek to

2 discover justifies a total stay of discovery. Plaintiffs respectfully submit that any rea

3 privacy concerns can be addressed through a protective order, and that defendants

4 have provided no basis for the relief they seek.

5

II. THE DEFENDANTS CANNOT MEET THEIR

HEAVY BURDEN UNDER RULE 12(B)(6) 6
In moving to dismiss for failure to state a claim under Rule 12(b)(6), defendants 7
bear a heavy burden. Such a motion can only be granted when the defendants 8
establish "beyond doubt that the plaintiff can prove no set of facts in support of his 9
claim which would entitle him to relief." Terracom v. Valley Nat’l Bank, 49 F.3d 555,

10 558 (9th Cir. 1995). "it is axiomatic that ’the motion to dismiss for failure to state a
11 claim is viewed with disfavor and is rarely granted.’" Gilligan v. Jamco Development
12 Corp., 108 F.3d 246, 249 (9th Cir. 1997). See also Wright & Miller, FEDERAL PRACTIC
13 & PROCEDURE, Civil 2d § 1357 (1990). ("The court should be especially reluctant to
14 dismiss on the basis of the pleadings when the asserted theory of liability is novel or
15 extreme, since it is important that new legal theories be explored and assayed in the
16 light of actual facts rather than a pleader’s suppositions.") This is such a case. There
17 is no reported decision concerning the employment of illegal immigrants as a RICO
18 predicate act by any court in the Ninth Circuit, and defendants have provided no
19 cognizable basis for preventing the plaintiffs from pressing their claims.
20

III. THE COMPLAINT SUFFICIENTLY ALLEGES THE

21

NECESSARY ELEMENTS OF RICO PREDICATE ACTS

22

According to the defendants, the Complaint should be dismissed because the

23 plaintiffs do not allege any predicate acts under RICO. In fact, the Complaint properly

24 alleges all the elements of two different categories of predicate offenses against both

25 Zirkle and Matson. 26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
00"134E.10 0014 MTN DOC

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1301 FIFTH AVENU]~. SUITI~ 2900 ~ SEATTLE, WA 98101 TELEPHONE (211~i)623-7292 * FAC$]M]LI~ (206)623-0594

1 Ao

Plaintiffs Allege Violations Of § 274 Of The Immigration and Nationality Act (8 U.S.C. § 1324(a)(3)(A))

2 In 1996, Congress made § 274 of the Immigration and Nationality Act (8 U.S.C.

3 § 1324(a)(3)(A)) a RICO predicate offense. ~ Section 274 imposes criminal sanctions

4 against ¯

5

Any person who, during any 12-month period, knowingly

6

hires for employment at least 10 individuals with actual

knowledge that the individuals are aliens described in

7

subparagraph (B) .... [8 U.S.C. § 1324(a)(3)(A)]

8 In turn, subparagraph B states that "aliens" means one who:

9

(1) is an unauthorized alien.., and

10

(2) has been brought into the United States in violation of [8

11

U.S.C. § 1324(a)].

12 8 U.S.C. § 1324(a)(3)(B). Finally, 8 U.S.C. § 1324(a) provides specific offenses where an 13 unauthorized alien has either been (1) brought into the United States; (2) transported

t4 or moved in interstate commerce; (3) concealed, harbored or shielded from detection; or

15 (4) encouraged or induced to enter the United States illegally.

16

Contrary to the defendants’ argument, plaintiffs have plainly alleged that the

17 defendants violated § 274. Indeed, the Complaint alleges Matson and Zirkle have been

t8 engaged in an "illegal immigrant hiring scheme" of knowingly employing illegal 19 immigrant workers in each year since 1996. ¶¶ 20-32.6 Specifically, plaintiffs allege

20 Matson hired certain of 493 workers having false/fraudulent identification documents,

21 "with actual knowledge that each person was an illegal immigrant (alien) who was not

22 eligible to be employed in the U.S., and Matson also knew that each person was either

23

24

5 This section is codified at 8 U.S.C. § 1324(a)(3)(A) and is made a RICO predicate

25 by 18 U.S.C. § 1961(1)(F).

26

6 References preceded by "¶" are to plaintiffs’ Complaint.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
I)01348. l0 0014 MTN.DOC

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1 smuggled into the U.S. and/or harbored once he or she was in the U.S." ¶ 29. See

2 United States v. Kirn, 193 F.3d 567(2d Cir. 1999) (knowingly hiring unauthorized alien

3 constitutes "harboring.") Plaintiffs further allege that Matson hired at least 50 of these

4 493 employees in each year since 1996, that the practice is ongoing, and that the

5 company maintained a workforce "comprised of approximately 50% illegal immigrants"

6 during the last three years. ¶ 29.

7

The INS has made similar findings against Zirkle. Id. The Complaint

8 specifically alleges that Zirkle "has employed at least 50 illegal immigrants, with 9 actual knowledge that each one was illegal and ineligible for employment, and with 10 knowledge that each one was either smuggled into the U.S. or harbored once in the 11 U.S." Id. at ¶ 32. These facts establish repeated violations of § 274 of the Immigration 12 and Nationality Act, and RICO, by Matson and Zirkle. For purposes of this motion, the 13 Court must take them as true. "On a motion to dismiss we are required to read the 14 complaint charitably, to take all well-pleaded facts as true, and to assume that all 15 general allegations embrace whatever specific facts might be necessary to support 16 them." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994), cert.

17 denied, 515 U.S. 1173 (1995).

18

1. Plaintiffs Need Not Allege The Facts Demanded By Defendants

19

Disregarding the fundamental tenets of notice pleading, defendants move to

20 dismiss the plaintiffs’ § 274-based RICO claim under Fed. R. Civ. P. 8.7 Contrary to

21

22

7 Although this circuit has not squarely addressed the issue, courts that have are

23 in agreement that RICO cases are subject to Rule 8 pleading standards unless fraud is

24 alleged, which invokes Fed. R. Civ. P. 9(b) as to those specific predicate acts.

25 "[A]llegations of non-fraud based predicate acts [under RICO] need only.., contain a

26 ’short and plain statement’ showing the pleader is entitled to relief." Colony At

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348 10 0014 MTN.DOC

-6-

1 the defendants’ demand for reams of information about each and every illegal employee 2 they have hired:

3

Our system of notice pleading ’does not require a claimant to

set out in detail the facts upon which he bases his claim.’

4

Instead, all the Rules require is a short and plain statement

of the claim, that will give the defendant fair notice of what

5

the plaintiffs claim is and the grounds upon which it

rests .... Thus, these liberal pleading rules only require

6

that the averments of the complaint sufficiently establish a

basis for judgment against the defendant." [Citations

7

omitted.]

8 Yamaguchi v. United States Dep’t oftheAir Force, 109 F.3d 1475, 1481 (9th Cir. 1997).

9 Or, as another federal circuit court has cogently enunciated the philosophy of notice

10 pleading, "[A] complaint is not required to allege all, or any, of the facts logically

11 entailed by the claim... Litigants are entitled to discovery before being put to their

12 proof, and treating the allegations of the complaint as a statement of the party’s proof

13 leads to windy complaints and defeats the function of Rule 8." Bennett v. Schmidt, 153 14 F.3d 516, 518-519 (7th Cir. 1998) (holding "I was turned down for a job because of my

15 race," sufficient to state claim for discrimination),s

16

Moreover, courts have no authority to impose heightened pleading requirements

17 beyond what Rule 8 requires. Leatherman v. Tarrant County Narcotics Intelligence &

18 Coordination Unit, 507 U.S. 163, 168 (1993) ("The Federal Rules of Civil Procedure do

19 not require a claimant to set out in detail the facts upon which he bases his claim.")

20

21 22 Holbrook v. Strata G.C., Inc., 928 F. Supp. 1224, 1234 (E.D.N.Y. 1996). See also

23 McLaughIin v. Anderson, 962 F.2d 187, 194 (2d Cir. 1992) (overruling a district court’s

24 holding that Rule 9(b) specificity was required for non-fraud predicates).

25

s The rule requires, in relevant part, "a short and plain statement of the claim

26 showing that the pleader is entitled to relief..." Fed. R. Civ. P. 8(a)(1).

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO DISMISS

00~348

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1 Thus, to withstand the motion, the bulk of the Complaint must simply meet the Rule 8 2 notice standards.9 RICO complaints are no exception to the Rule.

3

2. Defendants’ Argument is Inconsistent with Rule 8

4

The defendants argue that the Complaint inadequately pleads violations of § 274

5 of the Immigration and Nationality Act. Defs. Br. at 7-11. Specifically, the defendants

6 contend that the Complaint has not given "fair notice of the alleged facts on which

7 plaintiffs’ claims are based" because "plaintiffs fail to allege when any Zirkle or Matson

8 employees were smuggled into the U.S., where they were smuggled into the U.S., how

9 they were smuggled into the U.S., by whom they were smuggled into the U.S., whether

10 they had authorization to enter the U.S., or how Zirkle or Matson could have had

11 ’actual knowledge’ of such smuggling." Id. at 8, 10. The defendants cite no authority

12 in support of their argument that Rule 8 requires that all, or any, of these facts be

13 ple d. 10

14

In fact, as outlined above, the Complaint more than adequately puts the

15 defendants on notice as to the substance and nature of plaintiffs’ claim. Accordingly,

16 plaintiffs need not plead the details the defendants seek surrounding the smuggling

17 and/or harboring of the hundreds of illegal immigrants defendants are alleged to have

t8 employed since 1996. Were the plaintiffs to draft such an incredibly prolix complaint,

19

20

9 The Complaint’s allegations of mail fraud (¶¶ 33-39), are subject to the

21 heightened pleading requirements of Fed. R. Civ. P. 9(b), as will be examined below.

22

lo In fact the position the defendants advocate, that plaintiffs must plead all of the

23 facts underlying the complicated statutory predicate acts incorporated within RICO, is

24 so extreme that only one federal circuit has ever had to address it. In Rose v. Bartlett,

25 871 F.2d 331,355 (3d Cir. 1989) the court held, "It is the function of discovery to fill in

26 the details, and of trial to establish fully each element of the cause of action."

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
O013dg 10 OOlt MTN DOC

-8-

1 they would surely violate the express dictate of Rule 8, which requires "a short and

2 concise statement of the facts."

3

Moreover, the plaintiffs have pleaded virtually all of the relevant facts that any

4 plaintiff could possess about a clandestine illegal immigrant hiring scheme prior to

5 discovery. Indeed, at this point, much of the relevant evidence is in the exclusive

6 possession of defendants. Plaintiffs’ counsel have conducted an investigation of the

7 facts surrounding the illegal immigrant hiring scheme, particularly a Freedom of

8 Information Act request on the Immigration and Naturalization Service (INS) for the 9 agency’s files detailing its law enforcement actions directed at Matson and Zirkle.11

10 Therefore, in addition to violating the letter and spirit of Rule 8, the depth of fact

11 pleading sought by the defendants would effectively preclude all plaintiffs from ever

12 being able to pursue their claims in court. See, e.g., Neubronner v. Milken, 6 F.3d 666,

13 672 (9th Cir. 1993) (where information is uniquely within a defendant’s possession, a

14 plaintiff will "not be expected to have personal knowledge of the relevant facts.") As

15 such an outcome is patently inconsistent with Rule 8, it is not surprising that the 16 defendants fail to cite any authority to support their position.12

17

t8

n The INS denied counsels’ initial Request, from which an appeal was successfully

19 undertaken, resulting in the production of considerable documentation of the facts of

20 the INS investigation of defendants, although not the depth of detail the motion argues

21 must be pled.

22

1~. Nor can defendants take any comfort from Bach v. Mason, 190 F.R.D. 567 (D.

23 Idaho 1999) (Defs. Br. at 8). The complaint in Bach alleged, in relevant part, "All of

24 said defendants, and each of them.., having committed.., multi-layers of illegal and

25 corrupt activities and pursuits..." without specifying any specific predicate acts

26 committed by any specific persons. Id. at 572. The Court found such allegations

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO DISMISS

001348.10 0014 MIN.DOC

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1301 FIFTH AVENUE, SUITE 29~0 TBLBPHONE (206)623-1292 ¯ FACSIMILE (206)523-0594

1 B. Plaintiffs Have Adequately Alleged Mail Fraud

2

1. Mailing Knowingly False I-9 Forms Constitutes a Scheme to

Defraud

3

"To allege a violation of the mail fraud statute, it is necessary to show that 4

(1) the defendants formed a scheme or artifice to defraud; (2) the defendants used... 5

the United States mails in furtherance of the scheme; and (3) the defendants did so 6

with the specific intent to deceive or defraud." Rothman~ v. Vedder Park Management, 7

912 F.2d 315, 316 (9th Cir. 1990). Citing Rothman~, the defendants contend that the 8

mailing of fraudulent I-9 forms to the INS "could not, as a matter of law, be considered

’reasonably calculated to deceive persons of ordinary prudence and comprehension’ at 10
the INS." Defs. Br. at 14-15. However, Rothman does not support this statement. In 11
Rothman, the court held that a letter accompanying a lease and alleged to be 12
inconsistent with a provision in the lease could not be deemed to be fraudulent where 13
the inconsistency was subject to interpretation, and thus not necessarily inconsistent 14
with the lease. Id. at 317. In contrast, the Complaint here leaves no room for 15
interpretation, as it alleges that the I-9 forms are falsely attested as accurate by 16
Matson and Zirkle. ¶ 35. Thus, Rothmcm does not support the position the defendants 17
take, and no other authority is cited. 18
However, contrary to the defendants’ position, the Second Circuit has held that 19
the submission of a false I-9 form to the INS constitutes an "employment scheme" 20
supporting a criminal conviction. See Kim, 193 F.3d at 575. Kim thus flatly rejects the 21
defendants’ argument that the submission of false I-9 forms is not an actionable 22

23 24 "failed to state a [RICO] claim." Id. Bach has no application to the instant case, 25 which is pled with considerable detail, specifying which defendant committed which 26 predicate acts in as much specificity as could reasonably be expected of any plaintiff.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
I)01348 10 9014 MTN.DOC

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1 scheme. Defs. Br. at 14. Finally, the argument that the INS cannot be defrauded is 2 refuted by mail fraud RICO cases involving other government agencies. For example, 3 the Ninth Circuit has repeatedly held that the mailing of fraudulent tax returns to the 4 IRS constitutes mail fraud, supporting a RICO conviction. United States v. Busher, 817 5 F.2d 1409, 1412 (9th Cir. 1987). If the defendants’ reasoning had merit, such a 6 conviction could not occur because the IRS, as the nation’s tax enforcement agency, is 7 the entity responsible for determining whether tax returns are valid, and would 8 therefore be immunized from being defrauded. Therefore, plaintiffs have alleged facts 9 supporting the mail fraud claim, and the motion must be denied.

I0

2. Plaintiffs Meet The Requirements Of Rule 9

11

Fed. R. Civ. P. 9(b) provides that, "In all averments of fraud.., the

12 circumstances constituting fraud.., shall be stated with particularity." Under Ninth

13 Circuit precedent, this Rule requires plaintiffs to plead "the time, place, and specific

14 content of the false representations as well as the identities of the parties to the 15 misrepresentation."13 Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d

16 1393, 1401 (9th Cir. 1986) (general allegations of mail and wire fraud dismissed for

17 failure to comply with Rule 9 where they "failed to mention any use of the mails or

18 telephone.") Id. However, the Ninth Circuit also holds that Rule 9 "may be relaxed as

19 to matters peculiarly within the opposing party’s knowledge... Such ’an exception

20 exists where, as in cases of corporate fraud, the plaintiffs cannot be expected to have

21

22

13 Accord Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995), cert. denied, 517

23 U.S. 1136 (1996); Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985) ("Rule 9(b)

24 ensures that allegations of fraud are specific enough to give defendants notice of the

25 particular misconduct which is alleged to constitute the fraud charged so that they can

26 defend against the charge and not just deny that they have done anything wrong").

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
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I~]I FIFTI{ AVENUE, SUITE 2900 ¯ SEATTLE, WA 9S101 TELEPHONE (20fi~62~-7292 ¯ FACSIMILE (20b)623-0594

1 personal knowledge of the facts constituting the wrongdoing.’" Wool v. Tandem

2 Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987) (dismissal of RICO claim reversed

3 where plaintiff lacked identity of corporate insiders who made fraudulent statements

4 prior to discovery but other details were supplied); accord Wegbreit v. Marley Orchards

5 Corp., 793 F. Supp. 957, 961 (E.D. Wash. 1991) (allegation that securities offering

6 "misrepresented the reasonableness of the financial forecasts which were included in

7 the offering," without further detail, satisfied Rule 9(b)’s time, content and place

8 requirements without any reference to specific acts or roles of corporate insiders).

9

Further, in complex commercial fraud cases involving detailed statutory

10 requirements and a sophisticated alleged deception by a defendant, the defendant will

11 not be permitted to hide behind Rule 9(b). A defendant cannot bury the fraud in

12 hundreds or thousands of individual transactions, or disperse authority for the

13 individual steps in a fraudulent scheme, and then charge that the plaintiff has failed t

14 particularize the specific fraudulent transactions or culpable players. "The sufficiency

15 of the pleading ... depends ’upon the nature of the case, the complexity or simplicity of

16 the transaction or occurrence, the relationship of the parties and the determination of

17 how much circumstantial detail is necessary to give notice to the adverse party and

t8 enable him to prepare a responsive pleadings.’" United States ex rel. O’Keefe v.

19 McDonnell Douglas Corp., 918 F. Supp. 1338, 1345 (E.D. Mo. 1996) (emphasis added).

20

Thus, in certain circumstances, the heightened standards of Rule 9(b) will be

21 relaxed in evaluating allegations of fraud. As the Court recognized in In re Hanford

22 Nuclear Reservation Litig., 780 F. Supp. 1551, 1577 (E.D. Wash. 1991), "[w]hen the

23 issues are complicated or the transactions cover a long period of time, courts tend to

24 require less of the pleader." Further, where information is uniquely within a

25 defendant’s possession, a plaintiff will "not be expected to have personal knowledge of

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348 10 0014 MTN.DOC

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the relevant facts." Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993). In these

circumstances, a complaint must only set out facts from which a reasonable inference

of fraud may be drawn, and if it does so it may plead matters uniquely within the

4 defendant’s knowledge merely on "information and belief." Id. 14

5

The Complaint alleges the defendants have engaged in a scheme to mail

6 fraudulent I-9 forms in order to effectuate the illegal immigrant hiring scheme ("The

7 I-9 Mail Fraud Scheme"). ¶¶ 33-39. Plaintiffs allege that the defendants complete or

8 cause Selective to complete I-9 forms which they know falsely represent that particular

9 employees are authorized to be employed. (In particular, plaintiffs allege knowingly

10 false representations in the defendants’ attestations that particular job applicants are

11 eligible to work in the U.S. ¶ 35.) Plaintiffs further allege that each mailing is

12 undertaken "for the purpose of facilitating the hiring of an illegal immigrant." Id. at

13 ¶ 37. Thus, the Complaint has satisfied place and content requirements of the Rule as

14 set out in Wool.

15

The defendants ignore Wool and contend the Complaint "fail[s] entirely to allege

16 the time, place, and specific content of the false representations, as well as the

17 identities of the parties to these misrepresentations. [Plaintiffs’] excuse for this

18 shortcoming is that they must conduct discovery." Defs. Br. at 13 (emphasis in

19 original). In fact, the plaintiffs do plead the places and specific content of the

20 misrepresentations but cannot plead the dates or identities of the persons at this time.

21 Plaintiffs "excuse" for not doing so is in fact recognized by the Ninth Circuit, this Court

22 and every other federal court as wholly legitimate. Plaintiffs simply cannot plead the

23 time of each marling as demanded by the defendants, because they do not yet have

24

25

14 See also Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.

26 1989); Wool v. Tandem Computers Inc., 818 F.2d at 1439.

PLAINTIFFS RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

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1301 V[FTH AVENUE, SUITE 2900 * SEATTLE, WA ck$10 I TF~Li~PHONE (206)623-7292 ¯ FACSIMILE (206)623"0~’94

1 access to the 1-9 forms. Similarly, the identities of the individuals who prepared and

2 mailed the forms is not known, and need not be pled under the circumstances.

3 Accordingly, the complaint satisfies the standards of Rule 9(b). Wool v. Tandem

4 Computers, Inc., 818 F.2d at 1439.

5

Requests to require the detail demanded by defendants have routinely been

6 rejected by courts in similar circumstances. In O’Keefe, 918 F. Supp. 1338, the plaintiff

7 alleged that McDonnell Douglas had systematically mischarged labor hours by

8 directing employees to charge their hours worked on other projects to the government

9 contracts at issue. The defendant argued that the complaint did not sufficiently detail

10 the particulars of the fraud, such as specific employees involved, specific hours

11 mischarged, and the associated costs. The court concluded that a description of the

12 allegedly manipulated accounting system satisfied Rule 9(b), and that detailed

13 allegations of subsequent mechanical steps were not required: "With regard to

14 allegations of claiming improperly billed labor costs, the Complaint [adequately]

t5 outlines how [McDonnell Douglas] accomplished the mischarging through its

16 automated time accounting system and details to which government contracts the costs

17 were wrongly charged." Id. at 1345. (Emphasis added.)

18

The court in United States ex rel. Roby v. Boeing Co., 184 F.R.D. 107 (S.D. Ohio

19 1998), also expressly rejected the argument pressed by defendants here. In Roby,

20 Boeing asserted that Rule 9(b) required the relator to explain how each of 130 claims

21 for payment (submitted on Forms DD-250) was false by enumerating in the complaint

22 the particular way in which the helicopter gears to which they related diverged from

23 specifications. The court ruled that the complaint adequately detailed the various 24 defects in the gears, that these defects tainted every one of Boeing’s claims for

25

26

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13OI FIFTH AVENUE, SUITE 2900 ¯ SEATTLE, WA 9~]101 TELEFHONE (206)623-7292 ¯ FACSIMILE (2061623-~594

1 payment, and that Rule 9(b) did not demand a particularized analysis of each claim for

2 payment:

3

We disagree that Boeing is only able to speculate as to which

of the hundreds of Speco-manufactured gears presently in

4

service is alleged to be nonconforming since the

Government’s Amended Complaint provides at Paragraph

5

141 that Boeing acted with the knowledge of falsity or

reckless disregard for the truth with respect to every CH-

6

47(D) helicopter it delivered to the United States under

Forms DD-250.15 7

In Roby, the overall description of the fraud negated the need for an exhaustive

8

enumeration of each specific fraudulent act. The same is true here. 9

Similarly, in United States ex rel. Thompson v. CoIumbia/HCA Healthcare

10

Corp., 20 F. Supp. 2d 1017,1049 (S.D. Tex. 1998), the court specifically rejected the

11

contention that the relator had to enumerate each false claim, holding that a 12

description of the "nature of the fraudulent scheme" satisfies Rule 9(b) and ordering 13

that discovery may proceed: 14

The Court also finds that the complaint has been pled with

15

sufficient particularity to satisfy Rule 9(b). The basic

framework, procedures, the nature of the fraudulent scheme,

16

and the financial arrangements and inducements among the

parties that give rise to the Relator’s belief that fraud has

17

occurred have been alleged with specificity; Plaintiffs are

entitled to discovery before being required to list every false

18

claim, its dates, the individuals responsible, and why each

patient was not eligible for Medicare.

19

In a case of this complexity, specifying each illegal hire would require pleading 20

not only incidental evidentiary details, but massive amounts of such details. Courts 21

have made clear that pleading such evidence is not required by Rule 9(b). The 22

Complaint fully describes the scheme, but it does not enumerate each illegal act as 23

defendants demand. These evidentiary details are not required: 24

25

26

~ Id. at 110.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348 10 {X) I4 MT’N DOC

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1

We decline to require that a complaint must allege specific

shipments to specific customers at specific times with a

2

specific dollar amount of improperly recognized revenue; "we

cannot make Rule 9(b) carry more weight than it was meant

3

to bear" .... Because "we do not test evidence at this stage,"

the complaint should go forward.

4 Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 5
A final reason that the specification defendants demand is not required by 6
Rule 9(b) is that defendants’ are in exclusive possession of most of the information, and

7 there is no reason that plaintiffs would have access to it. As one court ruled in

8 analogous circumstances:

9

An exception to Rule 9(b)’s particularity requirement exists

10

where the relevant facts lie exclusively within the knowledge

and control of the opposing party. In such a case, pleading

11

upon information and belief is permissible, but plaintiff must

still plead a statement of facts upon which his belief is based.

12

The court concludes that this is an appropriate case in which

to apply the exception to Rule 9(b). Defendants do not

13

contend that plaintiff has equal access to the documents he

seeks .... Rather, they argue that plaintiff should be

14

expected to allege the relevant facts based on memory.

Plaintiff logically responds that he has not worked at OCS

15

since February of 1993 and that he can hardly be expected to

remember the exact dates of grant applications or reports.

16

[Citations omitted.]

17 WiIkins ex rel. United States v. Ohio, 885 F. Supp. 1055, 1061 (S.D. Ohio 1995). This

18 Court too should reject defendants’ attempt to erect such an insurmountable pleading

19 hurdle.

2O

3. Plaintiffs Can Discover Defendant’s 1-9 Forms

21

At various points in their brief, the defendants argue that 8 U.S.C. § 1324a(b)(5)

22 bars plaintiffs from conducting discovery of defendant’s 1-9 forms Defs. Br. at 13, 24.16

23

24

~6 An I-9 form is defined by the Act as "the form used for purposes of § 274(b)(1)(A)

25 ..." Historical and Statutory Notes, 8 U.S.C. § 1324a(d)(4). The Act further provides,

26 "A form designated by the Attorney General under this subsection [the I-9] and any

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
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1301 FIFl’Iff AVENUE, SUITE 29~1 ¯ SEATTLE, WA 95101 TELEPHONE (206)623-7292 * FACSIMILE (2D6)673-0594

1 While the defendants’ argument, even if correct, would not warrant dismissal of any of

2 the plaintiffs’ claims, the defendants are simply wrong. Accordingly, the defendants

3 having raised the issue, the Court can and should rule that the 1-9 forms are

4 discoverable.

5

The defendants cite no authority supporting their conclusion that the statutory

6 provision at issue has any effect on discovery of I-9 forms in civil cases. In fact, federal

7 courts have consistently held that similar statutory provisions, enacted for privacy

8 considerations, apply only to the government (not the private parties who submit the

9 forms), and in any event, do not bar the application of Fed. R. Civ. P. 26(b)(1),

10 permitting discovery "regarding any matter, not privileged, which is relevant to the

11 subject matter involved." Most significantly, the Supreme Court has ruled that:

12

prohibitions against disclosure [of census data pursuant to

federal statute] run only against the officials receiving such

13

information and do not purport to generally clothe census

information with secrecy... Indeed, when congress has

14

intended like reports not to be subject to compulsory process

it has said so.

15

St. Regis Paper Co. v. United States, 368 U.S. 208, 217-218 (1961), reh’g denied, 368

16

U.S. 972 (1962) (holding subpoena on Census Bureau could proceed for production

17

despite statute designating the materials "confidential" and "prohibited from us[e]...

18

for other than statistical purposes; and from making any publication thereof...") One

19

district court in the Ninth Circuit, relying upon St. Regis Paper Co., reached a similar

20

conclusion as to federal tax returns. Young v. United States, 149 F.R.D. 199, 201 (S.D.

21

Cal. 1993) (permitting discovery of defendants’ tax returns in civil case). See also

22

23 24 information contained in or appended to such form may not be used for purposes other 25 than enforcement of this chapter..." There are no reported cases interpreting this 26 section.

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1301 F[F"fH AVENUE, SUITE 2900 * SEATTLE, WA 9310I TELEPHONE (206)623-7292 * FACSIMILE (206)623-O59,t

Richards v. Stephens, 118 F.R.D. 338, 339 (S.D.N.Y. 1988) (argument that 26 U.S.C.

§§ 6103 and 7213, providing for confidentiality of tax returns, prohibit courts from

ordering production of them under Fed. R. Civ. P. 26 "borders on the frivolous, as tax

law only regulates tax officials from using returns, but has no effect on Court’s power

over taxpayer to produce them.")

Since the statutory provision of the Act at issue does not purport to exempt I-9

7 forms from compulsory process, and Congress gave no other indication of such an

8 intent, this Court should find that the I-9 forms are discoverable. Any other

9 interpretation is unsupported by any authority.

10

Moreover, even if the Court did preclude or limit discovery of the I-9 forms, that

11 would not warrant dismissal of the case under Rule 1203)(6) for failure to state a cause

12 of action. The I-9 forms are simply evidence plaintiffs will seek to discover. The illegal

13 immigrant hiring scheme can be proven through other evidence. Even the I-9 mail

14 fraud scheme could be proven without the actual production of the I-9 forms. Plaintiffs

15 could obtain an admission that the forms were in fact marled or establish the mailing

16 through another form of discovery. Thus, dismissal of either scheme for failure to state

17 a cause of action under RICO is improper. 17

18

19

20

21

22

17 Although the defendants point out that 8 U.S.C. § 1324a does not require that I-

23 9 forms be mailed to the INS, Defs. Br. at 14, they do not contest that they have

24 mailed I-9 forms to the INS. Indeed, plaintiffs’ allegations to this effect - based upon

25 their pre-filing investigation - are dispositive of the defendants’ arguments in this

26 motion to dismiss.

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1

IV. PLAINTIFFS HAVE STANDING TO SUE UNDER RICO

2 A. Because Plaintiffs Allege a "Direct" Injury, Holmes Supports Their Claim
3 The Supreme Court has applied common law "proximate causation" analysis to
4 RICO claims. See Holmes, 503 U.S. at 268. Thus, in order to have standing to sue
5
under RICO, the plaintiff must allege an injury proximately caused by a RICO 6
violation; in Holmes, the Court held the plaintiff could not sue because it had not 7
suffered a "direct" injury since its injuries were wholly derivative from injuries inflict 8
upon third parties. ]d. at 276. In stark contrast, plaintiffs and the class here are the
9 sole and direct victims of the defendants’ illegal immigrant hiring scheme. Thus,
t0 Holmes fully supports plaintiffs’ standing to sue under RICO.
11 Holmes concerned a suit brought by the SIPC, the not-for-profit entity obliged to
12 satisfy securities purchasers’ claims for account losses in the event their dealers could
13 not satisfy the claims. Id. at 261-62. The SIPC sued defendant Holmes for securitie
14 fraud, which allegedly caused the collapse of two securities firms. Id. at 262. Because
15 the firms’ dealers were unable to cover the losses, the $IPC had to pay $13 million to
16
the customers of the defrauded firms. Id. at 263. The SIPC sued Holmes for 17
recoupment of this money. Thus, the SIPC’s claim for damages arose because of the 18
following attenuated sequence of events: (1) the defendant defrauded customers; 19
(2) the customers thereupon lost their securities; (3) the customers’ dealers could not
20 cover the losses; therefore (4) the SIPC was contractually obligated to cover the losses.
21
Id. Only then did the SIPC sue Holmes for alleged RICO violations. The Supreme 22
Court concluded the SIPC was not "directly harmed" by the racketeering (securities 23
fraud). It stated that the SIPC’s harm was "purely contingent on the harm suffered by 24
the broker-dealers... [t]he broker-dealers simply cannot pay their bills, and only that 25
intervening insolvency connects the conspirators’ acts to the losses suffered by the 26

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1 nonpurchasing customers and general creditors." Id. at 271. Thus, an intervening 2 event, the insolvency of the securities brokership, broke the causal link between the 3 plaintiffs injury and the defendant’s conduct, so that the plaintiff was a "secondary

4 victim." Id. By contrast, the causation alleged in the instant case is direct: Matson 5 and Zirkle employ illegal immigrants for the purpose of depressing wage levels, and 6 the scheme is successful. Plaintiffs’ wages are depressed as a direct result of the

7 scheme.

8

The crux of the Court’s decision that the plaintiff in Holmes did not allege a

9 direct injury was that it had not been the target of the RICO violations. These

10 violations, securities fraud, were directed at investors in the securities which 11 eventually became worthless. The plaintiffs "damages" arose from its obligation to 12 cover the losses of the broker-dealers, who themselves were obligated to pay for their 13 customers’ securities losses (the actual targets of the RICO violations) by statute. 14 Thus, the Court reasoned that the plaintiffs in Holmes were no different from other 15 plaintiffs "who complained of harm flowing merely from the misfortunes visited upon a 16 third person by the defendants’ acts ."..I.d. at 268.

17

In deciding Holmes the Court drew upon its antitrust law proximate causation

18 analysis, particularly as enunciated in Associated General Contractors, Inc. v. 19 California State Council of Carpenters, 459 U.S. 519 (1983). Id. at 270, n.15, 271.is

20 That case held, in relevant part:

21

[W]here the plaintiff sustains injury from the defendant’s

conduct to a third person, it is too remote, if the plaintiff

22

sustains no other than a contract relation to such a third

person, or is under contract obligation on his account, and

23

the injury consists only in impairing the ability or inclination

of such person to perform his part, or in increasing the

24

25

26

RICO was modeled, in part, on the Clayton Antitrust Act.

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1

plaintiff s expense or labor of fulfilling such contract... [Id.

at 533, n.25 (emphasis added).]

2 This was precisely the plaintiff s situation in Holmes, and the reason the Court

3 concluded its alleged injury was not directly caused by the RICO violations.

4 The facts of the instant case are entirely different. The plaintiffs are not

5 alleging a contractual or statutory obligation to cover someone else’s losses. They are

6 the only victims of the illegal hiring scheme. They are alleging their own losses

7 directly caused by the illegal immigrant hiring scheme. Accordingly, there is no third

8 party which has more directly borne their damages, depressed wages, and is more

9 appropriately situated to bring this suit. If plaintiffs cannot sue for their depressed

10 wages, their claims will go unremedied.

11

B. 12

The Defendants’ Attempt to Apply Holmes Is Legally and Factually Erroneous

13

Nevertheless, the defendants argue that plaintiffs fail the "direct injury" test of

14 Holmes. First, they argue, "there is no allegation the plaintiffs were paid less than

15 other similarly situated workers in other similarly situated agricultural facilities..."

16 Defs. Br. at 17. No authority is cited for this alleged pleading requirement. In fact,

17 according to the Complaint, "Matson and Zirkle are conducting the Illegal Immigrant

18 Hiring Scheme for the purpose of depressing employee wages below the levels they

19 would otherwise be required to pay if they were unable to hire substantial numbers of

20 illegal immigrants..." ¶¶ 3, 15(b). Once again, for the purposes of this motion the

21 Court must assume these well-pied allegations are true. Therefore, the wage levels at

22 "similarly situated agricultural facilities" are irrelevant to the plaintiffs’ theory of

23 recovery. If plaintiffs can prove at trial that their wages would be higher absent the

24 illegal immigrant hiring scheme, they will be able to prevail. Thus, the motion must

25 be denied as defendants have failed to meet their burden of proving plaintiffs cannot

26

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1301 FIFTN AVENUE, SUITI~ 2990 * SEATTLE, WA 98101 TELEPHONE (20616~3-7292 ¯ FACSIMILE (206)623-0594

recover under any set of facts. See, e.g., Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d
1439, 1449 (9th Cir. 1994) (in evaluating the Complaint, "any doubts should be
construed in favor of the pleader"), cert. denied, 513 U.S. 1127 (1995).
C. Holmes’ Three-Part Analysis for "Indirect" Injury Further Demonstrates That Plaintiffs Have RICO Standing
The defendants seek to apply the three justifications for not permitting
indirectly injured parties to recover, discussed in Holmes, to the instant case. See Defs.
Br. at 18-19, citing Holmes, 503 U.S. at 269-70. As discussed above, this analysis 8
simply does not apply because the plaintiffs’ claims are direct and satisfy the 9
proximate causation analysis enunciated in Holmes. 10
In any event, a consideration of the three justifications proffered by the Holmes 11
court demonstrates that none of them apply to this case. One of the factors that 12
justifies not compensating indirect victims is that "claims of the indirectly injured 13
would force courts to adopt complicated rules apportioning damages among plaintiffs 14
removed at different levels of injury from the violative acts, to obviate the risk of 15
multiple recoveries." Id. at 269. Here, of course, there is no need to apportion damages 16
and no risk of multiple recovery. The plaintiffs, and the plaintiffs alone, have suffered 17
damages as a result of the illegal immigrant hiring scheme. 18
A second factor, addressed by the defendants (Defs. Br. at 19), is that "directly 19
injured victims can generally be counted on to vindicate the law as private attorneys
2o!
general .... "’ Holmes, 503 U.S. at 269-70, citing Associated General Contractors, 459 21
U.S. at 541-42. This rationale once again fully supports plaintiffs’ standing here as 22
there are no other "directly injured victims" to sue for plaintiffs’ lost wages here. In 23
this regard, the argument proffered by the defendants -- that "the INS can be counted 24
on to vindicate the law..." -- demonstrates beyond any doubt that Holmes cannot bar 25
plaintiffs’ claims here. The INS has no claim for depressed wages; only individual 26

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1 workers possess such claims. Therefore, any claim of the INS stemming from the

2 illegal immigrant hiring scheme would be to vindicate other rights and redress other

3 losses, not those of the plaintiffs.

4

Nor does the third Holmes rationale r that "the less direct an injury is, the

5 more difficult it becomes to ascertain the amount of a plaintiffs damages attributable

6 to the violation" -- have any application here. While the defendants half-heartedly 7 assert the existence of "other independent factors" that might impact the plaintiffs’ 8 wages, see Defs. Br. at 17, none of those alleged factors is a function of any 9 "indirectness" in the plaintiffs’ injuries. All the defendants have done is to (improperl 10 make unsubstantiated assertions of fact which, if supported by admissible evidence at 11 trial, might contest the plaintiffs’ allegations (which they will support with proof at th 12 appropriate time) that the defendants’ hiring of illegal immigrants has depressed thei

13 wages.

14 D. Imagineering Provides No Help To Defendants Here

15

The defendants cite one RICO case, Imagineering, Inc. v. Kiewit Pacific Co., 976

16 F.2d 1303 (9th Cir. 1992) for the proposition that plaintiffs claims are barred by

17 Holmes. See Defs. Br. at 19. But, as a careful analysis demonstrates, Imagineering is

18 not on point.

19

The plaintiffs in Imagineering were subcontractors who alleged they would have

20 been awarded contracts by general contractors on construction projects but for a

21 scheme to circumvent a law requiring the awarding of certain public works projects to

22 firms owned by minorities and women. The Ninth Circuit affirmed the dismissal of th

23 RICO case on two grounds: First, the plaintiffs could not establish they would have

24 received the subcontracts at issue because even if the contractor who successfully

25 obtained the contract had been required to forego the contract, the contract would not

26

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1)01 Fl~rl’H AVENUE, SUITE 29~0 ) SEATTLE. WA 9gl(~l TELEPHONE (206}623 7292 * FACSIMILE (206)62]-0594

1 necessarily have been awarded to the second lowest bidder (with whom they were 2 aligned). Id. at 1311. Under the prevailing law, the contract would have been required 3 to be rebid. Id. Additionally, the court found that even if plaintiffs had obtained the 4 subcontracts at issue, there was "no guarantee [they]... would not be substituted 5 during the pendency of the contract." Id. Second, the court concluded that under 6 Holmes, plaintiffs’ claims were barred because they were merely "indirect" victims of 7 the racketeering. Id. However, the court reached this conclusion only after plaintiffs 8 conceded they "were not the direct victims of defendants’ unlawful activities." Id. It 9 was undisputed that "the intervening inability of the prime contractors to secure the 10 contracts.., was the direct cause of plaintiffs’ injuries." Id. at 1312. Thus, the 11 plaintiffs’ damages arose solely due to the damages visited upon a third party, 12 precisely as in Holmes. By contrast, the Complaint does not allege any such scenario 13 or injured third party. Therefore, Imagineering is simply not on point.

14 E. The National Labor Relations Act Has No Bearing On This Case

15

The defendants argue that the fact that the National Labor Relations Act

16 (NLRA) applies to undocumented immigrants, conferring upon them the same rights as

17 American citizens who are covered by the Act, including the right to unionize, defeats

18 any claim brought on behalf of plaintiffs concerning wage levels. Defs. Br. at 18-19.

19 Plaintiffs do not dispute that the NLRA applies to illegal immigrants. However, that

20 fact has no bearing on the plaintiffs’ claims that Matson and Zirkle are employing

21 illegal immigrants in order to depress the wages of all their employees. Neither the

22 NLRA nor the cases cited by the defendants outlaw the employment of undocumented

23 immigrants or their payment of depressed wages. Therefore, the argument that the

24 NLRA applies to undocumented immigrants is irrelevant. The defendants cite no

25 authority providing otherwise.

26

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1301 FIP~If AVENUE, SUITE 2900 ¯ SEATTLE, WA 981(;1 TELEPHONE (206)623-7292 ¯ FACSIMILE (2(;6)623-0594

1

Finally, the related argument that the Complaint "rel[ies] on an

2 unsubstantiated assumption/generalization that unauthorized aliens are willing to

3 accept wages that are ’significantly lower’ than wages would be in a labor market

4 comprised solely of legally authorized workers... [that] is too tenuous a basis for

5 asserting proximate causation, considered in light of the legal right of unauthorized

6 aliens to engage in union organizing..." Defs. Br. at 18, is simply inappropriate. As

7 stated above, plaintiffs need not "substantiate" claims made in the Complaint. All

8 well-pied facts must be taken as true. Thus, ¶ 22, alleging that, "Matson and Zirkle

9 ¯.. knowingly hire workers of illegal status because the illegal workers are willing to

10 accept wages that are significantly lower than wages would be in a labor market

11 comprised solely of legally authorized workers," is not debatable or rebuttable. It must

12 be taken as true for purposes of this motion. Therefore, the defendants’ argument is

13 not a ground for dismissal.

14

V. PLAINTIFFS’ RICO CLAIMS ARE NOT PREEMPTED

15

Incredibly in light of the clear Congressional authorization of private suits under

i6 RICO, the defendants argue that there is no private right of action under RICO for

17 violations of § 274 of the Act because the "comprehensive scheme" of the Immigration 18 Reform and Control Act (IRCA)19 has preempted any such claim for civil damages.

19 Defs. Br. at 21-24. The defendants cite Nieto-Santos v. Fletcher Farms, 743 F.2d 638 20 (9th Cir. 1984)~° as authority for this sweeping statement of law. However, that case,

21 decided before the enactment of the IRCA, simply holds that the Immigration and

22 Nationality Act does not create a private right of action for employment disputes. Id.

23

24

19 The IRCA is codified at 8 U.S.C. §1324a, as part of the Immigration and

25 Nationalization Act.

26

eo Defs.’ Br. at 23.

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L~)L FIFTH AVENUE, SUITI~ ~0O ¯ SEATTLE. WA 9810I TELEPHONE (2~6)623-7292 . FACSIMILE (206)623-0594

1 at 641. Such cases, it holds, are matters of state law over which federal courts do not 2 have subject matter jurisdiction.2x Here, of course, the plaintiffs do not argue that the

3 Immigration and Nationality Act creates a private right to bring a RICO action -- that

4 right of action is created by the RICO statute. See 18 U.S.C. § 1961(1)(F) (making

5 violations of § 274 of the Immigration and Nationality Act predicate acts for RICO).

6

Characteristically, then, the defendants cite no authority to support their

7 argument that "the attempt by plaintiffs to independently enforce the immigration

8 laws through RICO should be deemed preempted by the IRCA." Defs. Br. at 24. Once

9 again, the defendants ascribe an intent to Congress that is not to be found within the

10 IRCA itself, and for which they cite no applicable authority. Danielson v. Burnside11 OTTAviation Training Center, Inc., 941 F.2d 1220, 1227 (D.C. Cir. 1991),22 holds that 12 RICO does not create a private right of action when the underlying statute does not 13 provide for one and is not among the statutes incorporated in RICO as predicate acts. 14 This is distinguishable from the instant case in which § 274 of the Immigration and 15 Nationality Act is a RICO predicate. Thus, if the Court were to adopt the defendants’ 16 argument, it would effectively repeal 18 U.S.C. § 1964 which confers a "private right of 17 action" on parties who have been damaged by RICO violations.23 "[RICO]... provides

18 a private civil action to recover treble damages for injury ’by reason of a violation of its 19 substantive provisions. 18 U.S.C. § 1964(c)." Sedirna S.P.R.L.v. Irnrex Co., 473 U.S. 20 479, 481 (1985). "Congress... set out a far-reaching civil enforcement scheme, § 1964

21

22

The defendants cite other cases standing for the same proposition. Defs. Br. at

23 23.

24

ee Defs. Br. at 24.

25

e3 Under 18 U.S.C. § 1964, "Any person injured in his business or property by

26 reason of a violation of section 1962 of this chapter may sue therefor..."

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1301 FIFTH AVE’HUE, SUITE 290(I ¯ SEATTLE, WA 91~01 TELEPHONE (206)623~7292 ¯ FACS[M]LE (206)623-0594

1 ..." Id. at 483. As the Supreme Court has noted in its most recent RICO case, "Both

2 statutes [RICO and the Clayton Antitrust Act] share a common congressional objective

3 of encouraging civil litigation.., not merely to compensate victims but to turn them

4 into prosecutors, ’private attorney’s general,’ dedicated to eliminating racketeering

5 activity." Rotella v. Wood, __ U.S. __, 120 S. Ct. 1075, 1082, 145 L.Ed.2d 1047

6 (2000). Moreover, "[t]he courts are without authority to restrict the application of the

7 [RICO] statute." United States v. Turkette, 452 U.S. 576, 587 (1981). Accordingly, this

8 Court has no authority to do what the defendants propose: constrict or disregard

9 RICO."e4

10

Finally, the defendants’ argument is contrary to established rules of statutory

11 construction which favor the reconciliation of statutes having overlapping subject

12 matter. Thus, the Ninth Circuit holds that, "[To] the extent that statutes can be

13

14

24 The defendants mistakenly rely on McDonough v. Gencorp, Inc., 750 F. Supp.

15 368, 371 (S.D. Ill. 1990) in support of their RICO preemption argument. Defs. Br. at 16 24. In Gencorp, the plaintiff attempted to recast violations of the National Labor 17 Relations Act, which the Supreme Court had held "preempts state and federal court 18 jurisdiction to remedy conduct ... prohibited by the ACT," as mail fraud violations of 19 RICO. Id. at 369-70 (citation omitted). Following the Supreme Court’s lead, the

20 district court dismissed those RICO allegations. However, the district court held that

21 violations of § 186 of the NLRA, which is listed in RICO as a predicate act, could 22 proceed under RICO. Id. at 370. Gencorp supports plaintiffs position. Since § 274 of 23 the Immigration and Nationality Act is a RICO predicate, Congress obviously intended

24 it to be used in that manner. Moreover, since the Supreme Court has never held that 25 the IRCA preempts statutory federal claims of any sort, plaintiffs’ mail fraud claim can 26 also proceed.

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1 harmonized, they should be..." Hellon & Assoc., Inc. v. Phoenix Resort Corp., 958 2 F.2d 295, 297 (9th Cir. 1992). Moreover, in the event the IRCA actually were 3 inconsistent with § 274 and RICO (which it is not, nor does the motion so contend), 4 plaintiffs would still prevail because the enactment of § 274 and its incorporation into 5 RICO post-date the IRCA. "[I]n case of an irreconcilable inconsistency between them 6 [conflicting statutes] the later and more specific statute usually controls the earlier and 7 more general one." Id. See also Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) 8 ("When two statutes conflict the general rule is that the statute last in time prevails as 9 the most recent expression of the legislature’s will"). Therefore, the IRCA does not 10 preempt or bar plaintiffs’ RICO claims here.

I1

VI. PLAINTIFFS STATE A VIABLE CLAIM FOR CIVIL CONSPIRACY

12 A. 13

The Complaint Properly Pleads A Claim For Civil Conspiracy Under Washington Law

Contrary to defendants’ contentions, there is no "novel question" as to whether 14

the alleged concerted violation of immigration law constitutes a civil conspiracy under 15

Washington law. As defendants neglect to inform this Court, civil conspiracy in 16

Washington is broadly defined and clearly encompasses the conduct alleged in the 17

Complaint. See, e.g., Lewis Pacific Dairymen’s Asso. v. Turner, 50 Wash. 2d 762, 772, 18

314 P.2d 625 (1957) (citing Harrington v. Richeson, 40 Wash. 2d 557, 570, 245 P.2d 191 19

20 (1952)):

21

A conspiracy is a combination of two or more persons to commit a criminal or unlawful act, or to commit a lawful act

22

by criminal or unlawful means; or a combination of two or more persons by concerted action to accomplish an unlawful

23

purpose, or some purpose not in itself unlawful by unlawful means ....

24 To constitute a conspiracy the purpose to be effected by it

25

must be unlawful in its nature or in the means to be

employed for its accomplishment ....

26

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1 Accord, Deschamps v. Luther, 64 Wash. 2d 728, 393 P.2d 945 (1964); Sterling Bus. 2 Forms v. Thorpe, 82 Wash. App. 446, 451, 918 P.2d 531, 533 (1996). Conspirators are 3 jointly and severally liable for all the damages caused by the conspiracy both before 4 and after their entry into the conspiracy. Sterling, 82 Wash. App. at 454; Sears v.

5 International Brotherhood of Teamsters, C., S & H., 8 Wash. 2d 447, 452, 112 P.2d 850

6 (1941). 7

The plaintiff in a civil conspiracy case must prove the case by a

8 preponderance of the evidence, and must establish the existence of the conspiracy by 9 clear, cogent and convincing evidence. Corbit v. J.I. Case Co., 70 Wash. 2d 522, 529, 10 424 P.2d 290 (1967). But that standard has no application on a motion to dismiss, 11 where plaintiffs’ allegations must be taken as true. Indeed, the "clear, cogent and 12 convincing evidence" standard does not even apply on a motion for summary judgment, 13 where the plaintiffs must come forward with factual support for their allegations. 14 Gerimonte v. Case, 42 Wash. App. 611, 615, 712 P.2d 876, 879 (1986) ("while clear, 15 cogent and convincing evidence is the proper standard of proof.., at trial, ’it is not the 16 proper standard to be applied to determinations regarding summary judgment

17 motions."’).

18

Here, the plaintiffs have alleged that the defendants have conspired to commit

19 unlawful acts. See, e.g., ¶¶ 59, 61 (alleging conspiracy to violate the Immigration and

20 Nationality Act). Defendants have done so in order to depress the wages of plaintiffs

21 and the Class. ¶ 60, 62. Defendants’ conspiracies have succeeded, and plaintiffs suffer

22 from depressed wages as a result. Id. Accordingly, plaintiffs state a claim for civil

23 conspiracy under well-established Washington law.

24

25

26

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B. Plaintiffs’ Civil Conspiracy Claim Is Not Preempted By The IRCA

Recognizing that they have no grounds to dismiss plaintiffs’ civil conspiracy

claim under Washington law, the defendants assert that the claim is preempted by

"the comprehensive federal agency enforcement scheme mandated by the IRCA." Def.

Br. at 26. Alternatively, defendants assert, plaintiffs’ civil conspiracy claim is

preempted by the express preemption clause of the IRCA - even though on its face that

7 clause preempts only State law sanctions, not common law claims for damages which 8 are compensatory, not punitive. Because the IRCA contains an express preemption 9 clause that does not apply to plaintiffs’ claim, defendants’ preemption arguments are 10 doomed to failure.

11

Because The IRCA Contains An Express Preemption Clause, Any

Arguments Based On "The Comprehensive Federal Scheme"

12

Cannot Prevail

13

As the United States Supreme Court has made clear, when a federal statute

14 includes an express preemption clause, that clause both defines and limits the

15 preemptive reach of the statutory scheme at issue. See, e.g., Cipollone v. Liggett Group,

16 Inc., 505 U.S. 504, 517 (1992):

17

When Congress has considered the issue of pre-emption and

has included in the enacted legislation a provision explicitly

18

addressing that issue, and when that provision provides a

"reliable indicium of congressional intent with respect to

19

state authority," Malone v. White Motor Corp., 435 U.S.

[497], 505 [1978], "there is no need to infer congressional

20

intent to pre-empt state laws from the substantive

provisions" of the legislation. California Federal Savings &

21

Loan Assn. v. Guerra, 479 U.S. 272, 282, 93 L. Ed. 2d 613,

107 S. Ct. 683 (1987) (opinion of Marshall, J.). Such

22

reasoning is a variant of the familiar principle of expressio

unius est exclusio alterius: Congress’ enactment of a

23

provision defining the pre-emptive reach of a statute

implies that matters beyond that reach are not pre-

24

empted. [Emphasis added.]

25

26

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1

Here, as the defendants themselves point out, Congress has enacted an express

2 preemption provision. See 8 U.S.C. §1324a(h)(2). Pursuant to the above principles,

3 this section must be strictly and narrowly construed. Accordingly, there is neither

4 need nor license for this Court to "infer congressional intent to pre-empt state laws 5 from the substantive provisions" of the law. Guerra, 479 U.S. at 282. This Court 6 should thus reject out of hand defendants’ claim that the "comprehensive scheme" of

7 the IRCA preempts state common law damage claims. Preemption is explicitly 8 governed by the express preemption language of the IRCA.

9

2. Because Plaintiffs Bring A Civil Conspiracy Claim For Damages,

And Not For Sanctions, 8 U.S.C. § 1324a(h)(2) Poses No Bar To

10

Their Claim

11

Congress has expressly defined the preemptive reach of the IRCA as follows:

12

Preemption. The provisions of this section preempt any

State or local law imposing civil or criminal sanctions

13

(other than through licensing and similar laws) upon those

who employ, or recruit, or refer for a fee for employment,

14

unauthorized aliens. [8 U.S.C. § 1342a(h)(2).]

15 While no reported decision has construed this language, the statute, on its face,

16 preempts only laws "imposing civil or criminal sanctions," and hence does not preempt

17 common law damage claims. See, e.g., CippoIlone, 505 U.S. at 524 (when Congress

18 enacts an express preemption clause, "each phrase within that clause limits the

19 universe" of laws preempted by that statute.)e~

20

The plain meaning of "sanction" does not include common law damage actions:

21

22

23

2~ While the Cipollone Court held that "state law prohibitions" included at least

24 some common law damage claims, 505 U.S. at 522-23, the preemption clause at issue

25 in Cipollone did not include the qualifying language "imposing sanctions" that

26 Congress chose to include as a limitation to the preemptive reach of the IRCA.

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1

Sanction. That part of a law which is designed to secure

enforcement by imposing a penalty for its violation or

2

offering a reward for its observance. For example, Fed. R.

Civ. P. 37 provides for sanctions for failure to comply with

3

discovery orders. See also Contempt.26

4 The meaning of "sanction" is universally understood as referring to legislatively (or 5 sometimes judicially) created penalties for not complying with statutory law. Perhaps 6 most familiarly, Rule 11 of the Fed. R. Civ. P. provides for "sanctions" against 7 attorneys for failing to abide by the strictures of that rule. As defined in Rule 11:

8

Nature of Sanction; Limitations. A sanction imposed for

violation of this rule shall be limited to what is sufficient to

9

deter repetition of such conduct or comparable conduct by

others similarly situated. Subject to the limitations in

10

subparagraphs (A) and (B), the sanction may consist of, or

include, directives of a nonmonetary nature, an order to pay

11

a penalty into court, or if imposed on motion and warranted

for effective deterrence, an order directing payment to the

12

movant of some or all of the reasonable attorneys’ fees and

other expenses incurred as a direct result of the violation.

13

[ld.]

t4

Likewise, the United State Supreme Court frequently speaks of "civil sanctions"

15 in the double jeopardy context; these reference make clear that "civil sanctions" are

16 statutory penalties. See, e.g., United States v. Halper, 490 U.S. 435, 436 (1989)

17 (referring to statutory penalties as "civil sanctions."); see also Austin v. United States,

18 509 U.S. 602 (1993) (same).

19

20

21

22

26 BLACK’S LAW DICTIONARY (5rs ED. 1979) at 1203. The United States Supreme

23 Court has repeatedly admonished courts to apply the plain, commonly understood

24 meaning of statutory language. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185,

25 199 n.19-20 (1976) (relying on dictionary meaning of "device"); see also Addison v. Holly

26 Hill Fruit Products, Inc., 322 U.S. 607, 617-18 (1944).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
00134:~ 10 0014 M"I’N DO~

- 32 -

Finally, the Ninth Circuit has also recognized the distinction between

"sanctions" and legal "requirements" such as might be imposed by statute or common

law:

State waste disposal standards, permits, and reporting

duties clearly are "requirements" for the purpose of § 6961.

Criminal sanctions, however, are not a "requirement" of state

law within the meaning of § 6961, but rather the means by

which the standards, permits, and reporting duties are

enforced. Section 6961 plainly waives immunity to sanctions

imposed to enforce injunctive relief, but this only makes

more conspicuous its failure to waive immunity to criminal

8

sanctions.

9 California v. Walters, 751 F.2d 977, 978 (9th Cir. 1984).

10

Because the preemptive scope of the IRCA is expressly limited to laws imposing

11 sanctions, the defendants’ preemption argument is without merit. 12

13

VII. DEFENDANTS PROVIDE NO PROPER BASIS FOR STAYING

DISCOVERY 14

The mere pendency of a motion to dismiss is not a reason to stay discovery. As 15

one court has noted: 16

17

Had the Federal Rules contemplated that a motion to dismiss under Fed.R.Civ.Pro. 12(b)(6) would stay discovery, the Rules

18

would contain a provision to that effect.

Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990). See also Cohn v. Taco

20 Bell Corp., 147 F.R.D. 154, 161-62 (N.D. Ill. 1993). Accordingly, an applicant for a stay 21 of discovery pending the resolution of a motion to dismiss "carries the heavy burden of 22 making a ’strong showing’ why discovery should be denied." Gray, 133 F.R.D. at 40. 23 Courts require a "particular and specific" demonstration of need, as distinguished from 24 conclusory statements, in order to establish a strong showing for a stay. Id., see also 25 Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652 (D. Nev. 1989); 26 Kiblen v. Retail Credit Co., 76 F.R.D. 402, 404 (E.D. Wash. 1977). A showing that

PLAINTIFFS RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
0013,I8.10 OO 14 MTN DOC

- 33 -

1 discovery may cause some inconvenience and expense is not sufficient - even if the

2 defendants attempt to make such a showing. Twin City Fire Ins. Co., 124 F.R.D. at

3 653.

4

Courts will not stay discovery even if the pending motion to dismiss is

5 "apparently meritorious." Twin City Fire Ins. Co., 124 F.R.D. at 653; see also Gray, 133

6 F.R.D. at 40. Rather, the standard is far stricter. A district court must be convinced

7 that the plaintiff will be unable to state a claim for relief. E.g., Twin City Fire Ins. Co.,

8 124 F.R.D. at 653 (citing Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981), cert.

9 denied, 455 U.S. 942 (1982); B.R.S. Land Investors v. United States, 596 F.2d 353 (9th

10 Cir. 1979)). Thus, a request for a stay should be denied where the success of the

11 motion to dismiss is speculative. Cohn v. Taco Bell Corp., 147 F.R.D. at 162; United

t2 States v. Board of Educ., 636 F. Supp. 1046, 1047 (N.D. Ill. 1986).

13

Here, defendants have made no effort to meet the strict standards for staying

14 discovery and their motion must therefore be denied.

15 A. 16 17

Defendants Have Failed to Satisfy Their Burden of Demonstrating They Are Entitled to a Stay
1. Defendants Have Made No Showing That Discovery Would Be Unduly Burdensome

18

Defendants have not made any effort to demonstrate that discovery would be

19 unduly burdensome. Indeed, the defendants have not even received any discovery

20 requests from the plaintiffs. Accordingly, this Court cannot consider any claim of

21 burden defendants might proffer in their reply brief.

22

2. Defendants’ Alleged Privacy Concerns Can Provide No Basis For

23

Staying Discovery

24

Defendants’ sole proffered reason for staying discovery is that "[D]iscovery would

25 relate to sensitive/confidential information about employees’ national origin, there [sic

26 social security numbers and information contained in I-9 Forms that are protected

PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ MOTION TO DISMISS

~301348 10 0014 MTN DOC

34-

from disclosure by federal law." Mtn. to Stay Discovery at 2. This reason, even if

credited, is insufficient. As an initial matter, plaintiffs have already demonstrated that I-9 Forms are

fully discoverable. See supra at 17-19. Thus, even if the I-9 Forms were the only

discovery plaintiffs planned to seek, defendants’ motion should be denied.

Moreover, plaintiffs’ discovery will certainly not be limited to I-9 Forms. Once

that discovery is propounded, any legitimate privacy or confidentiality concerns can be

8 addressed through a protective order. Not surprisingly, defendants have cited no case 9 denying all discovery on the grounds that some potentially discoverable information 10 might be confidential or sensitive.

11

3. Defendants Have Not Demonstrated That Their Motion Will

Dispose Of The Entire Case

12

The Court should not consider granting the stay motion unless it is convinced

13

that the defendants’ motion will dispose of the entire case. E.g., Twin City Fire Ins. Co.,

14

124 F.R.D. at 653. As this brief demonstrates, the defendants are unlikely to succeed

15

in dismissing any part of this case. Even if the Court disagrees, it should still deny the

16

stay motion if it believes that any part of the case may survive.

17

VIII. CONCLUSION 18

In conclusion, defendants’ Fed. R. Civ. P. 12(b)(6) Motion to dismiss and stay 19

discovery must be denied. 20
DATED this 13th day of June, 2000. 21

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
0013~-8. I0 0014 MTN DOC

- 35-

1 2 3 4 5 6 7 8 9 10 tl 12 13 14 15 16 17 18 19 20 21 22 23 24
25
26
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
001348. l0 0014 M’IN.DOC

HAGENS BERMAN LLP
By~ ~zt( Steve W. Berman, WSBA #12536 Andrew M. Volk, WSBA #27639 Kevin P. Roddy 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (9.06) 623-7292
Howard W. Foster JOHNSON & BELL, LTD. 55 E. Monroe St., Suite 4100 Chicago, IL 60603 (312) 372-0770
Attorneys for Plaintiffs

- 36-

1301 l~ltrgH AVENUE, SUITE 2900 ¯ SEATTLE, WA 98101 TELEPHONE (206)623T7292 . FACSIMILE (206)625 0594

1

DECLARATION OF SERVICE

2

3

4

I, Lynn Brammeier, declare under penalty of perjury under the laws of the State

5 of Washington that the following facts are true and correct:

6

I am a citizen of the United States, over the age of 18 years, and not a party to or

7 interested in the within-entitled cause. I am an employee of the law firm Hagens

8 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,

9 Washington 98101.

10

On June 13, 2000, I caused an original and one copy of the following document

11 to be sent to the Clerk of the District Court, Eastern District of Washington, West 920

12 Riverside Ave., Room 840, U.S. District Courthouse, Spokane, WA., 99201, via

13 United Parcel Service overnight mail for filing on June 14, 2000:

14

I also caused a copy of the following document to be served on counsel of

15 record in the manner indicated below:

16

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

17

AND FOR A STAY OF DISCOVERY

18 Brendan V. Monahan

VELIKANJE, MOORE & SHORE, P.S. 19 405 East Lincoln Ave.

P.O. Box 22550 20 Yakima, WA 98907

Attorneys for Defendant Selective 21 Employment Agency, Inc.

22

( ) U.S. MAIL
() FAX

23

( ) MESSENGER ( x ) OVERNIGHT MAIL

24

25

26

DECLARATION OF SERVICE

-1-

1348 tO 0013 BSC,DOC

t I~VEM.RESdOglNey& APPLEGATE, P.S.
2 311 North Fourth Street P.O. Box 22730
3 Yakima, WA 98907-2715 Attorneys for Defendants Matson Fruit
4 Company and Zirkle Fruit Co. ( ) U.S. MAIL
5 () FAX
( ) MESSENGER
6 ( x ) OVERNIGHT MAIL

7 Walter G. Meyer
8 Meyer, Fluegge & _Tenney, P.S. 230 South Second ~5treet
9 P.O. Box 22680 Yakima, WA 98907
10 Attorneys for Defendant Zirkle Fruit Co. ( ) U.S. MAIL
11 ()FAX
( ) MESSENGER
12 ( x ) OVERNIGHT MAIL

13

14

15

Executed on June i3, 2000, in Seattle, Washington.

16

17

18

19 Lyn!!rammeler
20

21

22

23

24

25

26

DECLARATION OF SERVICE

-2-

L34K 10 0(113 EI$C DOC

L+OI Fil~ A~+~, Suit+ "+.~0 ~’ ~:mfl©, WA 98101

 </s> 1 Brendan V. Monahan

2 Velikanje, Moore & Shore, P.S. 3 405 East Lincoln Avenue 4 P.O. Box 22550

FILED IN THE U.S. DISTRICT COURT EASTERN D S :~ul- Or WASHINGTON

5 Yakima, Washington 98907 6 Telephone: 509-248-6030
7
Attomeys for Defendant Selective Employment
8

JUN 2 7 2000
JAMES R. LARSEN, CLERDKEPUTY YAKIMA, WASHINGTON

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on 14 behalf of all other similarly situated,

NO. CY-00-3024-FVS

15

16

Plaintiffs,

17

18

19 ZIRKLE FRUIT CO., a Washington 20 corporation, MATSON FRUIT 21 COMPANY, a Washington corporation)
22 and SELECTIVE EMPLOYMENT )

23 AGENCY, INC., a Washington

)

24 corporation,

25

)

26

Defendants.

)

27

)

DEFENDANT SELECTIVE EMPLOYMENT, INC’ S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

28

29

This memorandum is submitted by defendant Selective Employment, Inc.,

3O
31 ("Selective") in support of its motion to dismiss the civil conspiracy claim that the

32 plaintiffs have asserted against Selective. The basis of the motion is that Selective is
33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, 1NC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-1
263181b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1 a "pendent party" to this litigation, and the exercise of supplemental jurisdiction over

2
3 pendent parties ("pendent party jurisdiction") violates Article III of the U.S.

4
5 Constitution.

6

7

I. FACTS

8

Selective was sued by plaintiffs in March, 2000. The sole claim against

9

10 Selective was that it had engaged in "civil conspiracy" under Washington’s common
11

12 law (see Plaintiffs’ Complaint, Count II, ¶¶ 57-62). In addition to Selective
13

14 Employment, Inc., plaintiffs’ suit named Zirkle Fruit Company ("Zirkle") and Matson

15
16 Fruit Company ("Matson") as defendants. The plaintiffs have asserted that both Zirkle

17
18 and Matson engaged in a various patterns of racketeering activity that constituted

19 violations of the federal Racketeer Influenced and Con’upt Organizations Act (RICO),
20

21 18 U.S.C. § 1961 et seq (see Plaintiffs’Complaint, Count L ¶¶ 48-56).
22

23

In the pleadings that have been submitted to this Court, the Plaintiffs have

24

25 expressly and repeatedly stated that the RICO claims are being asserted against Zirkle

26
27 and Matson only, and that the only claim being asserted against Selective is the

28
29 Washington common law claim of civil conspiracy (see Plaintiffs’RICO Case

30
31 Statement, ¶ (b) ; Plaintiffs’Response To Defendants’Motion to Dismiss, pg. 1, note

32 33

1).

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-2
263181b

Velikanje, Moore & Shore, P.S.
attorne),t at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

Because Selective is not named in the RICO claim, and because there is no

2

3 diversity of citizenship between Selective and the Plaintiffs, Selective is considered a

4
5 "’pendent party" to this action. The claim against Selective may only proceed if this

6
7 Court determines that "pendent party jurisdiction" should be exercised in this matter.

8

The Ninth Circuit has flatly and unequivocally established that Article III of the

9

10 United States Constitution prohibits the extension of pendent party jurisdiction.
11

12 Accordingly, this Court must dismiss Selective from this action because the extension
13

14 of pendent party jurisdiction would be improper.

15

16

II. ARGUMENT

17

18 A. Selective is a pendent party in this litigation, and the presence of a pendent

19

party implicates the subject matter of a District Court in the Ninth Circuit.

2O

Federal courts are courts of limited jurisdiction, and, thus, such courts may only

21

22 exercise subject matter jurisdiction as permitted by law. See, e._~., Elsaas v. County of
23

24 Placer, 35 F.Supp.2d 757, 759 (E.D.Cal. 1999). Even where parties are willing to
25

26 stipulate to such jurisdiction, see Washington Local v. International Brotherhood of

27
28 Boilermakers, 621 F.2d 1032, 1033 (9th Cir.1980), federal courts have an affmnative

29
30 obligation to consider the issue sua sponte. Demery v. Kupperman, 735 F.2d 1139,

31

32

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-3
263181b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(so~)

1 1149 n. 8 (9th Cir.), cert. denied, 469 U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803
2
3 (1985).

4

5

The Federal Courts of the United States have original jurisdiction over a variety

6
7 of matters, including but not limited to cases involving federal questions, bankruptcy

8 matters, or cases where there is diversity of citizenship. See, e.g., 28 U.S.C. § 1331,
9

10 et seq. In this case, however, it is uncontested that the Court lacks original jurisdiction
11

12 over the Plaintiffs’ State law claims against Selective.
13

14

When a Court lacks original jurisdiction over a particular claim or a particular

15
16 party, it may, in certain circumstances, exercise supplemental jurisdiction over "claims

17
18 that involve the j oinder or intervention of additional parties". 28 U.S.C. § 1367. Elsaas

19 v. County of Placer, 35 F.Supp.2d 757, 759 (E.D.Cal. 1999).
20

21

Because plaintiffs state no federal claim against Selective and no diversity of

22

23 citizenship exists between plaintiffs and defendants here, the Court has no independent
24

25 basis to exercise jurisdiction over Selective. Consequently, Selective is a "pendent

26
27 party" to this litigation, and the issue of whether jurisdiction is proper becomes a

28
29 question of "pendent jurisdiction". See Elsaas, 35 F.Supp.2d at 759; Potter v. Rain

30
31 Brook Feed Company, Inc., 530 F.Supp. 569, 572 (E.D. Cal. 1982).

32

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER

Velikanje, Moore & Shore, P.S.
attorne)’s at law

JURISDICTION-4
263181b

405 East Lincoln Ave. P.O. Box 22550
Yakima, WA 98907
(sos) 24~.so3o

Courts have identified two distinct species of pendent jurisdiction. Potter v. Rain

Brook Feed Company, Inc., 530 F.Supp. at 572. On the one hand, "pendent claim"

4
5 jurisdiction exists when a plaintiff raises parallel state and federal claims against the

6
7 same defendant. Id. "Pendent party" jurisdiction, on the other hand, typically both

8 involves a state claim appended to the action that provides the anchoring source of
9

10 federal jurisdiction and requires for its resolution the joinder of another party over
11

12 whom there is no independent basis of federal jurisdiction. Id.

13

14

In the absence of "pendent party" jurisdiction, there is no subject matter

15
16 jurisdiction over the party against whom the State claim is asserted. See, e.g., Elsaas,

17
18 35 F.Supp.2d at 759; Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir.

19 1977), cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed,
20
21 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). Accordingly, the civil conspiracy
22

23 claim (and thus the totality of all claims asserted) against Selective must be dismissed
24
25 for want of subject matter jurisdiction unless this Court concludes that "pendent party"

26
27 jurisdiction should be exercised in this matter.

28

29

As discussed more fully below, the Ninth Circuit has expressly and

30
31 unequivocally prohibited the exercise of pendent party jurisdiction, and the plaintiffs’

32 State law claim against Selective must therefore be dismissed.
33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER .IURISDICTION-5
263181b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O, Box 22550 Yakima, WA 98907
(509) 248-6030

1 B. In the Ninth Circuit, pendent party jurisdiction violates Article III of the

2

United States Constitution, such that pendent parties must be dismissed.

3

4

The issue of whether to exercise pendent party jurisdiction is a generally a

5
6 "’subtle and complex question with far reaching implications". Moor v. County of

7
Alameda, 411 U.S. 693,715, 93 S.Ct. 1785, 35 L.Ed.2d 596 (1973). Indeed, Federal
8

9 Courts may not exercise pendent party jurisdiction unless both Article III of the U.S.
10

11 Constitution and Congress authorize them to do. Aldinger v. Howard, 427 U.S. 1, 18
12

13 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976),

14

15

Although this issue has proved difficult for other circuits of appeal, the Ninth

16
17 Circuit has taken a strict approach to this issue, and has explicitly held that Article III

18 of the U.S. Constitution simply does not permit pendent party jurisdiction. _&,Y._a~, 550
19

20 F.2d at 1199-1200. While the ~ mandate, on its face, may seem to conflict with
21

22 the two-step inquiry envisioned by the Aldinger decision, a close review of the two
23

24 decisions and their progeny reveals that the Ninth Circuit’s current prohibition against

25
26 pendent party jurisdiction actually has its roots in the Supreme Court’s Aldinger

27
28 decision.

29

3O

In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the

31
32 Supreme Court identified two prerequisites of pendent party jurisdictional power in a

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO

DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-6
263181b

Velikanje, Moore & Shore, P.S.
att0rne)’$ at Itw 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1 federal court, stating that "(b)efore it can be concluded that (pendent party)jurisdiction

2
3 exists, a federal court must satisfy itself not only that Article III permits it, but that

4
5 Congress in the statutes conferring jurisdiction (in a particular case) has not expressly

6
7 or by implication negated its existence." 427 U.S. at 18, 96 S.Ct. at 2422.

8

The _A,vala Court adopted the Aldinger rule verbatim, although its analysis was

9

10 primarily focused on the Constitutional aspects of pendent party jurisdiction. See
11

12 _Ay__o~, 550 F.2d at 1199-1200. The ~ court observed that the Supreme Court had
13

14 left "’the ultimate question ofconstitutionalpower’" unanswered, and it thus endeavored

15
16 to address the question itself. ~, 550 F.2d at 1200. The ~ court ultimately

17
18 elected to reaffirm two earlier Ninth Circuit cases, (Williams v. United States, 405 F.2d

19 951,954 (9th Cir. 1969) and Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969) that had flatly
20

21 rejected the concept of pendent party jurisdiction. _&y_.~_, 550 F.2d at 1200.
22

23

Although subsequent District courts have wondered whether the ~ decision

24

25 might have been"deficient" in its analysis of this issue (see, e.g., Elsaas, 35 F.Supp.2d

26
27 at 760), there has been no confusion regarding its conclusion that pendent party

28
29 jurisdiction violates Article III of the U.S. Constitution, and its resulting ban on the

30
31 exercise of pendent jurisdiction in the Ninth Circuit. Potter, 530 F.Supp. at 572 (citing

32 _&y_~a_, supra.).
33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER

Velikanje, Moore & Shore, P.S.
attorneys at law

JURISDICTION-7
263181b

405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

Thus, since ~ was decided in 1977, the Ninth Circuit, see, e._~., Carpenters

2

3 Southern California Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (9th

4
5 Cir. 1984) (upholding trial court’s refusal to exercise pendent party jurisdiction by citing

6 7

to "a long line of cases of this circuit"); Yanez v. United States, 989 F.2d 323,327 (9th

8 Cir. 1993), and trial courts in the Ninth Circuit, see, e._~., Potter, 530 F.Supp. at 571
9

10 (recognizing Ninth Circuit’s "rejection" of pendent party jurisdiction); Miletech v.
11

12 Raley’s, 593 F.Supp. 124, 125 (D.Nev. 1984)(citing _&_~_, supra., and holding that,
13

14 in light of __Ay__o_~, "courts in the Ninth Circuit must adhere to (the Ninth Circuit’s)

15
16 constitutionally-based rule barring the adjudication of pendent party claims ); Elsaas.,

17
18 35 F.Supp.2d at 760 (raising issue of subject matter jurisdiction sua sponte and

19 dismissing pendent party there because ~ remains the law in this Circuit) have
20

21 consistently held that pendent party jurisdiction violates the federal Constitution.
22

23

Both appellate courts and trial courts in other circuits have, in turn, consistently

24

25 recognized the Ninth Circuit’s position as to the constitutionality of pendent party

26
27 jurisdiction. See, e._~., Huffinan v. Hains, 865 F.2d 920,922 (7t~ Cir. 1989); Pearce v.

28
29 United States, 450 F.Supp. 613,616 (D.Kan. 1978) (identifying the Ninth Circuit as

30
31 the one court that has "consistently rejected pendent party jurisdiction"); Kyriazi v.

32
Western Elec. Co., 476 F.Supp. 335,336 (D.N.J. 1979); Campbell v. B.C. Christopher
33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-8
263181b

Vellkanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1 Securities Co., 702 F.Supp. 775, 779 (W.D.Mo. 1988) (noting that Ninth Circuit has
2

3 "squarely rejected" concept that Aldinger permits pendent party jurisdiction).

4

5

The Ninth Circuit’s law of pendent party jurisdiction is best summarized in the

6
7 most recent statement of such law, Elsaas., 35 F.Supp.2d at 760:

8

"Ayala clearly expressed the Ninth Circuit’s view that Article III does not permit

9

pendent party jurisdiction. No decision of the United States Court of Appeals for

10

the Ninth Circuit or the United States Supreme Court has overruled _Ay__~_’s

11

rejection of pendent party jurisdiction on constitutional grounds, nor does

12

passage of § 1367 alter the holding. Thus, Ay_.0_La_ remains the law on pendent

13

party jurisdiction in the Ninth Circuit, and this court, being bound, may not

14

exercise jurisdiction over plaintiffs’ claims against the (pendant party there)."

15

16

III. CONCLUSION

17

18

Defendant Selective respectfully request that this Court follow the Elsaas court

19
and dismiss Selective under the Ninth Circuit’s binding precedent regarding pendent
20

21 party jurisdiction, Ayala.
22

23

DATED this ~ay oL_"~ ~-t,/t,,z_--, 2000.

24

25

VELIKANJE, MOORE & SHORE, P. S.

26

Attorneys for Defendant Selective

27

Employment, Inc.

28

29

30

31

32

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-9
263181b

Velikanje, Moore & Shore, P.S.
attorney~ at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

CERTIFICATE OF SERVICE

2

3

I am Lori A. Busby. I hereby certify under penalty of perjury of the laws of the State of Washington that the following statements are true and correct.

4

5

I am one of the employees of the attorneys for the defendant Selective Employment in the

6

above-entitled matter; that I am a citizen of the United States, a resident of Yakima County,

Washington, over the age of twenty-one years, and not a party to said action¯ That on the_.~’~O"day

7

of June, 2000, I caused to be faxed and sent to via overnight mail, a copy of the document to which

8 this is attached to the following:

9

10 Howard W. Foster, Esq.

JOHNSON & BELL, LTD.

11

222 N. LaSalle Street, Suite 2200

12 Chicago, IL 60601

13 14 Steve W. Berman, Esq.
Andrew M. Volk, Esq. 15 HAGENS, BERMAN LLP 16 1301 Fitth Avenue, Suite 2900
17 Seattle, WA 98101

18 and hand delivered to the following attorneys:
19

20 Walter G. Meyer, Esq.

21

Meyer, Fluegge & Tenney, P.S.

230 South Second Street

22 P.O. Box 22680

23 Yakima, WA 98907

24

25 Ryan Edgley, Esq. Halverson & Applegate, P.S.
26 P.O. Box 22730

27

Yakima, WA 98907-2715

28 Dated at Yakima, Washington this 7,,~Y~day of June, 2000.
29

30

31

32

¯ Busby ~

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S MEMORANDUM IN SUPPORT OF MOTION TO

DISM/SS FOR LACK OF SUBJECT MATTER JURISDICTION-10
263181b

Velikanje, Moore & Shore, P.S. attorneys at law 405 East Lincoln Ave. P.O. Box 22550 Yakima, WA 98907 (509) 248-6030

 </s> 1 Steve W. Berman, WSBA #12536 Andrew M. Volk, WSBA #27639
2 Kevin P. Roddy HAGENS BERMAN LLP
3 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101
4 (206) 623-7292

5 Howard W. Foster

JOHNSON & BELL, LTD.

6

222 N. LaSalle Street, Suite 2200 Chicago, IL 60601

7 (312)372-0770

8 Attorneys for Plaintiffs

FILED IN THE . F-.ASTERUN.&DIDSITSRTIRCITCOTFCWOUASRHTINGTON
J U L ! 0 2900

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON AT YAKIMA

ll

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on behalf
of all others similarly situated,
14
Plaintiffs,
15

16 ZIRKLE FRUIT CO., a Washington

17

corporation, MATSON FRUIT COMPANY, a Washington corporation

18

and SELECTIVE EMPLOYMENT AGENCy, INC., a Washington

19 corporation,

20

Defendants.

No. CY-00-3024-FVS
PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER

21

22

Plaintiffs, Olivia Mendoza and Juana Mendiola, individually and on behalf of

23 all others similarly situated (hereafter "plaintiffs"), submit the following brief in

24 opposition to defendant Selective Employment Agency, Inc.’s second motion to

25

26

PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT MOTION TO DISMISS
134810 0018 MTN-PH.DOC

1 dismiss, brought pursuant to FED. R. Cr¢. P. 12(b)(1) and (h)(3), for lack of subject 2 matter jurisdiction.1

3

I. INTRODUCTION

4

Plaintiffs have filed a two-count Complaint against three defendants. Count I

5 alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO),

6 18 U.S.C. § 1961 et seq., against defendants Zirkle Fruit Co. ("Zirkle") and Matson

7 Fruit Co. ("Matson"). Count II alleges defendant Selective Employment Agency, Inc.

8 ("Selective") conspired with Zirkle and Matson to violate the Immigration and

9 Nationality Act ("the Act"), 8 U.S.C. § 1324(a)(3)(A), by knowingly employing

10 illegal aliens. This conspiracy to violate the Act is referred to in the complaint as "the

11 illegal immigrant hiring scheme" and is alleged to have caused plaintiffs injuries, and

12 depressed wages as employees of Zirkle and Matson.

13

However, Count II does not allege Selective violated RICO. The Complaint

14 pleads "supplemental jurisdiction" over Selective, pursuant to on 28 U.S.C.

I5 § 1367(a), as a pendent party.

16

On June 27, 2000, nearly a month after filing its prior motion to dismiss, which

17 raises no jurisdictional dispute or defect, Selective filed a second motion to dismiss,

18 arguing this Court lacks subject matter jurisdiction over the corporation because "the

19 exercise of supplemental jurisdiction over pendent parties (pendent party jurisdiction)

20 violates Article III of the U.S. Constitution." Selective’s Motion, pp. 2,6.

2I

As demonstrated below, Selective’s motion is premised upon cases which

22 predate the enactment of 28 U.S.C. § 1367, providing for supplemental jurisdiction,

23
~ Selective has previously joined in the motion to dismiss brought pursuant to FED. 24
R. Cry. P. 12(b)(6) for failure to state a claim pursuant to Count II of the complaint,
25
for common law conspiracy under Washington law.
26

PLAINTIFFS’ RESPONSE TO

-2-

DEFENDANT SELECTIVE

EMPLOYMENT MOTION TO DISMISS

1348 100018 MTN-PH DOC

13OI FIFTH AVENUE, SUIT~ 2900 * SEA’rTLE, WA 9g101 TELEPI’IONE (206)623-7292 ¯ FACSIMILE C206)623 ~594

1 and are therefore no longer valid. The motion further ignores this Court’s precedent,

2 most recently expressed in Ziegler v. Ziegler, 28 F. Supp.2d 601 (E.D. Wa. 1998),

3 which recognizes and follows the supplemental jurisdiction statute without

4 reservation. Additionally, the Ninth Circuit has acknowledged the application of the 5 statute. Yanez v. United States, 989 F.2d 323,326 n.3 (9th Cir. 1993).

6
7
A.
8

II. PENDENT PARTY JURISDICTION DOES NOT VIOLATE TIlE CONSTITUTION
Pendent Party Jurisdiction is Established by Statute and Recognized by this Court

9

In 1990, Congress enacted 28 U.S.C. § 1367, creating "supplemental

10 jurisdiction" over claims "that involve the j oinder or intervention of additional

11 parties.’’2/3 Thus, as the statute provides, when a district court has original jurisdiction

12 of a case (as does this Court over Count I, as a federal question), the court also has

I3 jurisdiction "over all other claims that are so related .... " It is undisputed that Count II

14 of Plaintiffs’ Complaint against Selective is related to Count I, as it arises from the

15 same facts and controversy (the illegal immigrant hiring scheme). Accordingly, this

16 Court has jurisdiction over Count II and over Selective. See Ziegler, 28 F.Supp.2d at

17 6 t8 (upholding supplemental jurisdiction of state law claims in federal question case

18 of non-diverse parties). Thus, there is no applicable precedent following the

19

20 2 The Judicial Improvements Act of 1990, Pub. L. 101-650 § 310(c).

21

3 As discussed below, the statute resolved any doubt as to the doctrine of pendent

22

party jurisdiction created by prior Supreme Court decisions interpreting the prior 23

statute, upon which the motion relies. See McCray v. Holt, 777 F. Supp. 945 (S.D. 24

Fla. 1991), which has been expressly adopted by this Court in Ziegler, 28 F.Supp.2d at
25

618.
26

PLAINTIFFS’ RESPONSE TO

-3-

DEFENDANT SELECTIVE

EMPLOYMENT MOTION TO DISMISS

1348 10 ~015 MTN~PH.DOC

1 enactment of the 1990 supplemental statute holding either that the statute or the 2 concept of supplemental jurisdiction is unconstitutional. See also 13B WRIGHT & 3 MILLER, FEDERAL PRACTICE AND PROCEDURE, § 3567.2, "Pendent Parties" (2000).4

4 B. The Motion Cites Pre-1990 Case Law

5

The cases cited in the motion interpret the "pendent party jurisdiction" standard

6 that were employed by federal courts prior to the enactment of the supplemental

7 jurisdiction statute in 1990. Selective’s Motion, pp. 3-9. As stated above, the Ninth

8 Circuit has explicitly acknowledged that the enactment of the 1990 statute changed th

9 law with respect to jurisdiction over pendent parties. Yanez, 989 F.2d at 326, n.3. 10: Thus, the motion is entirely premised upon inapplicable case law.5

11

Accordingly, this Court’s jurisdiction over Selective and Count II of the

12 Complaint does not violate the constitution. The Court properly has such jurisdiction

13

14

15

16 4 Selective’s Motion at p. 4 cites two post-1990 cases. Elsaas v. County of Placer,
17
35 F. Supp.2d 757 (E.D. Cal. 1999)(motion, p.3), is inapplicable as it has not been
18
affirmed by the Ninth Circuit. Accordingly, this Court’s opinion in Ziegler, is
19
applicable to this case. See Yanez, 989 F.2d at 326 which denied pendent party
20
jurisdiction in a case brought before the enactment of the 1990 statute. However, it
2I
expressly recognized that the new law would change the outcome of cases filed after 22 its enactment, ld. at n.3. Thus, the case supports plaintiffs’ position. 23
5 It, therefore, violates FED. R. CIV. P. 11, as it is not well grounded in law.
24
However, plaintiffs have not, as of yet, filed a motion for sanctions for responding to
25
this frivolous filing.
26

PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT MOTION TO DISMISS
134~ 10 00~g MTN-PH ~

1301 FIFT~ AVENUE, SUITE 29’~O* SEATTLE. WA 98 IO!. TELEPHONE (206)623-729;/: * [fACSIMILE (206)623-0594

~a~vEMR.SEOdNgle&y APPLEGATE, P.M.
311 North Fourth Street P.O. Box 22730 Yakima, WA 98907-2715
~ttomeys for Defendants Matson Fruit ompany and Zirkle Fruit Co.
(x) U.S. MAIL 5 () FAX
( ) MESSENGER
6 ( ) OVERNIGHT MAIL

7
Walter G. Meyer 8 Meyer, Fluegge & _Tenney, P.M.
230 South Second Street 9 P.O. Box 22680
Yakima, WA 98907
10 Attorneys for Defendant Zirkle Fruit Co.
(x) U.S. MAIL
11 ()FAX
( ) MESSENGER
12 ( ) OVERNIGHT MAIL

13

14

15

Executed on July 7, 2000, in Seattle, Washington.

16

17

18

I9
Lyn~~~’~mmei-er "
20

21

22 23

24

25

26

DECLARATION OF SERVICE

-2-

1

DECLARATION OF SERVICE

2

3

4

I, Lynn Brammeier, declare under penalty of perjury under the laws of the State

5 of Washington that the following facts are true and correct:

6

I am a citizen of the United States, over the age of 18 years, and not a party to or

7 interested in the within-entitled cause. I am an employee of the law firm Hagens

8 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,

9 Washington 98101.

10

On July 7, 2000, I caused an original and one copy of the following document to

11 be sent to the Clerk of the District Court, Eastern District of Washington, West 920

12 Riverside Ave., Room 840, U.S. District Courthouse, Spokane, WA., 99201, via

13 United Parcel Service overnight mail for filing on July 10, 2000:

14

i also caused a copy of the following document to be served on counsel of

15 record in the manner indicated below:

16

PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT,

17

INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER (AND

DECLARATION OF SERVICE)

18

19

Brendan V. Monahan VELIKANJE, MOORE & SHORE, P.S.

20

405 East Lincoln Ave. P.O. Box 22550

21

Yakima, WA 98907 Attorneys for Defendant Selective

22 Employment Agency, Inc.

(x) U.S. MAIL

23 ()FAX

( ) MESSENGER

24 ( ) OVERNIGHT MAIL

25

26

DECLARATION OF SERVICE

-1-

1348.10 0~13 BSC.DOC

1301 Fiflh Avenue, $uite 2~O O Seattle, WA 98101 Telepl~e~se (2~) 623-72~20 F~¢sLmLle (206) 6~3-0594

III. CONCLUSION

In conclusion, plaintiffs move the Court to deny Selective’s motion to dismiss

brought pursuant to Fed. R. Civ. P. 12(b)(1) and (h)(3) and for any other relief the

4 Court deems proper.

5

DATED: July__~, 2000

6

HAGENS BERMAN LLP

7

8

Steve w. Betrnarg°~CSB/k No.~12536

9

Andrew M. Voll~, WSBA No. 27639

1301 Fifth Avenue, Suite 2900

10

Seattle, WA 98101

(206) 623-7292

11

12

Howard W. Foster

JOHNSON & BELL, LTD.

13

55 E. Monroe St., Suite 4100

Chicago, IL 60603

14

(312) 372-0770

15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO

-5-

DEFENDANT SELECTIVE

EMPLOYMENT MOTION TO DISMISS

1348. 10 0018 MTN~PH.DOC

 </s> 1 Brendan V. Monahan 2 Velikanje, Moore & Shore, P.S.
3 405 East Lincoln Avenue 4 P.O. Box 22550 5 Yakima, Washington 98907 6 Telephone: 509-248-6030
7 Attorneys for Defendant Selective Employment
8

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
JUL 1 8 2000
JAMES R. LARSEN, CLERK YAKIMA. WASHINGTODNEPUTY

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on

NO. CY-00-3024-FVS

14

15

Plaintiffs,

DEFENDANT SELECTIVE

16

EMPLOYMENT, INC’S

17

REPLY TO PLAINTIFFS’

18

RESPONSE TO DEFENDANT

19 ZIRKLE FRUIT CO., a Washington )

SELECTIVE EMPLOYMENT, INC.’ S MOTION TO DISMISS FOR

20 corporation, MATSON FRUIT )

LACK OF SUBJECT MATTER

21 COMPANY, a Washington corporation) JURISDICTION

22 and SELECTIVE EMPLOYMENT )

23 AGENCY, INC., a Washington

)

24 corporation,

)

25

)

26

Defendants.

)

27

)

28

29

This memorandum is submitted by Selective Employment, Inc., ("Selective") in

30
31 reply to plaintiffs’ memorandum in opposition to Selective’s Motion to Dismiss the

32 plaintiffs’ claim against Selective for lack of subject matter jurisdiction in this Court.
33

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-1 263901b

Vellkanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550
Yakima, WA 98907 (509) 248-6030

1

2

3

I. ARGUMENT

4

5

In responding to Selective’ s Motion to Dismiss, plaintiffs rely exclusively on the

6
7 proposition that the jurisdiction they seek to have this Court assert is permitted under

8 28 U.S.C. § 1367. In so doing, plaintiffs completely ignore the thrust of Selective’s
9

10 argument, which is not based on a lack of Congressional authorization for pendent
11

12 party jurisdiction, but rather on the premise that pendent party jurisdiction violates
13

14 Article III of the U.S. Constitution. The Ninth Circuit has firmly and unequivocally

15
16 held that pendent party jurisdiction does indeed violate Article III of the U.S.

17
18 Constitution. See, Ayala v. United States, 550 F.2d 1196, 1199-1200 (gth Cir. 1977),

19
cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed, 435
20

21 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). Despite the plaintiffs’ wishes to the
22

23 contrary, no simple act of Congress can permit what the U.S. Constitution prohibits.
24

25

A. Article Ill must be satisfied for proper pendent part~ jurisdiction.

26

27

As the United States Supreme Court has indicated, "(b)efore it can be concluded

28
29 that (pendent party) jurisdiction exists, a federal court must satisfy itself not only that

3O
31 Article III permits it, but that Congress in the statutes conferring jurisdiction (in a

32
particular case) has not expressly or by implication negated its existence." Aldinger
33

34

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-2 263901b

Velikanje, Moore & Shore, P.S.
att0tne),$ at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). Under Aldinger,

then, this Court’s inquiry has two parts: (1) does Article III permit pendent party

4
5 jurisdiction generally and (2) has Congress limited the permissible extent of such

6
7 jurisdiction in a statute conferring jurisdiction in a particular case.

8

The Ninth Circuit Court of Appeals has answered the first inquiry in the

9

10 negative. As Selective argued in its initial memorandum, pendent party jurisdiction is
11

12 disallowed in this Circuit not on grounds of "ferreted Congressional disinclination"
13
14 towards pendent party jurisdiction, but on more ftmdamental grounds that exercise of

15
16 such jurisdiction in federal courts violates Article III. Potter v. Rain Brook Feed

17
18 Company, Inc., 530 F.Supp. 569, 572 (E.D. Cal. 1982) (citing A_y__~a, supra.). Thus,

19 the second Aldinger inquiry, which plaintiffs address exclusively, is irrelevant here.
20

21

B. Passage of 28 U.S.C. § 1367 does not change the condition that

22

Article III must be satisfied for proper pendent party jurisdiction.

23

24

It is axiomatic in federal law that Congress cannot change the Constitution’s

25

26 parameters through passage of a statute, and 28 U.S.C. § 1367 is no exception to this

27
28 general rule. See, e._g=, Rivera v. Commonwealth of MassachusettS, 16 F.Supp.2d 84,

29
30 85 (D.Mass. 1998) (stating that the "statutory grant (of authority provided in 28 U.S.C.

31
§ 1367) can (not) ... expand the jurisdictional boundaries set forth in Article III ... of
32

33 the United States Constitution."). Thus, 28 U.S.C. § 1367, as an act of Congress, has
34

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-3 263901b

Velikanje, Moore & Shore, p.$.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima. WA 98907
(509) 248-6030

no effect on whether pendent party jurisdiction is permitted by Article III or not. Elsaas

v. County of Placer, 35 F.Supp.2d 757,760 (E.D.Cal. 1999) (dismissing pendent party

4
5 there for lack of subject matter jurisdiction because "(n)o decision of the United States

6 Court of Appeals for the Ninth Circuit or the United States Supreme Court has
7

8 overruled ~3,ala’ s rejection of pendent party jurisdiction on constitutional grounds, nor
9

10 does passage of§ 1367 alter (_A.F_~_ ’s) holding") (emphasis added).
11

12

C. Cases cited by plaintiffs do not change the necessary result here.

13

14

Plaintiffs attempt to avoid the effect of Ayala’s holding by citing to a relatively

15
16 recent decision of this Court, Ziegler v. Ziegler, 28 F.Supp.2d 601 (E.D.Wa. 1998),

17
18 wherein 28 U.S.C. § 1367 was purportedly "followed without reservation" and a Ninth

19 Circuit case, Yanez v. United States, 989 F.2d 323, 326 n. 3 (9th Cir. 1993), in which
20
21 the Ninth Circuit is deemed to have "acknowledged the application of the statute."
22

23 Neither of these cases change the necessary result here because neither of these cases
24
25 overrules ~ and declares pendent party jurisdiction constitutional in the Ninth

26
27 Circuit.

28

29

Ziegler does not help plaintiffs for several reasons. First, the parties in that

30
31 action failed to raise the issue of constitutionality. As a result, the Court never

32 considered the ~ precedent, and thus never addressed whether the extension of
33 34

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATYER JURISDICTION-4 263901b

Velikanje, Moore & Shore, P.S. attorneys a! law 405 East Lincoln Ave. P.O. Box 22550 Yaldma, WA 98907 (509) 248.6030

1 pendent party jurisdiction was constitutional. Further, pendent party jurisdiction as to
2
3 defendants could not have been raised in that ease because that ease involved federal

4
5 claims brought by one plaintiff and state claims brought by another plaintiff against a

6
7 defendant properly before the Court on the first plaintiff’s federal claims. Thus, Ziegler

8 is factually distinguishable from the current ease, wherein a plaintiff has hauled into,
9

10 federal court a defendant over which no independent basis for federal jurisdiction
11

12 exists.
13

14

Yanez provides the plaintiffs with no more support. First, Yanez says nothing

15
16 about the constitutionality of pendent party jurisdiction, but merely sets forth in dictum

17
18 (in a footnote no less) that Congress has authorized its exercise in 28 U.S.C. § 1367.

19 See Yanez., 989 F.2d at 326 n.3. Further, the Yanez court had no reason to address any
20

21 aspect of pendent party jurisdiction, including the constitutionality thereof, because
22

23 U.S.C. § 1367 had not been enacted as of the date the litigation at issue in Yanez had
24
25 been commenced. Id~ While the footnoted dictum is arguably confusing to the reader,

26
27 it is clear that the Yanez court did not address, and certainly did not overrule, the clear

28
29 holding in ~ that pendent party jurisdiction violates the Constitution, regardless of

30
31 what Congress may have to say about it.

32

33

34

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-5 263901b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

D. Without jurisdiction over Selective, this Court cannot "declare the law" as to Selective.

4

This Court’s lack of jurisdiction over Selective requires Selective’s dismissal

5
6 from this action. As the Ninth Circuit, quoting Steel Co. v. Citizens for a Better

7 Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), noted last year:
8

9

"Jurisdiction is power to declare the law, and when it ceases to exist, the only

10

function remaining to the court is that of announcing the fact and dismissing the

11

cause ....

12

13

Axness Intern., Ltd., v. Intercargo Ins. Co., 183 F.3d 935, 945 (9th Cir. 1999).

14

15

By the Axness standard, this Court’s only remaining act as to Selective is to

16
17 announce the fact that subject matter jurisdiction does not exist as to the pendent party

18
under the ~ rule and dismiss Selective from this action on that ground.
19

20

IL CONCLUSIONS

21

22

The case plaintiffs need to produce to defeat this motion is not a case indicating

23

24 that Congress permits jurisdiction over pendent parties, Yanez, 989 F.2d at 326 n.3, or
25
26 a case in which a Court of this District, to which the issue of subject matter jurisdiction

27
28 was not addressed, exercised jurisdiction over claims by a second plaintiff against a

29
30 defendant properly before the Court. Ziegler, 28 F.Supp.2d at 618. Rather, the case

31
plaintiffs need to produce to defeat this motion is a Ninth Circuit (or Supreme Court)
32

33

34

35
DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MA’YrER JURISDICTION-6 263901b

Vellkanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

case that overrules ~ and holds that pendent party jurisdiction no longer violates

Article III of the U.S. Constitution.

4

5

As the Elsaas case recognizes, no such case exists. All other Courts within the

6
7 Ninth Circuit are therefore bound to dismiss pendent parties l~om federal court cases,

8 because the extension of jurisdiction over such parties violates the U.S. Constitution.
9

10

DATED this/~day of ~) u/-~/ ,2000.

11

12

VELIKANJE, MOORE & SHORE, P. S.

13

Attorneys for Defendant Selective

14

Employment, Inc.

15

16

17

18

WSBA No. 22315

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-7 263901b

Velikanje, Moore & Shore, P.S.
attornnys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

CERTIFICATE OF SERVICE

2

I am Lori A. Busby. I hereby certify under penalty of perjury of the laws of the State of

3

Washington that the following statements are true and correct.

4

5

I am one of the employees of the attorneys for the defendant Selective Employment in the

6

above-entitled matter; that I am a citizen of the United States, a resident of Yakima County,

Washington, over the age of twenty-one years, and not a party to said action. That on thel8th day

7

of July, 2000, I caused to be faxed and sent regular mail, a copy of the document to which this is

8 attached to the following:

9

10 Howard W. Foster, Esq.

JOHNSON & BELL, LTD.

11

222 N. LaSalle Street, Suite 2200

12 Chicago, IL 60601

13 Steve W. Berman, Esq.
14 Andrew M. Volk, Esq. 15 HAGENS, BERMAN LLP
16 1301 Fifth Avenue, Suite 2900
17 Seattle, WA 98101

18 and caused to be hand delivered this document to the following attorneys:

19

20 Walter G. Meyer, Esq.

21

Meyer, Fluegge & Tenney, P.S. 230 South Second Street

22 P.O. Box 22680

23 Yakima, WA 98907

24 Ryan Edgley, Esq.
25 Halverson & Applegate, P.S. 26 P.O. Box 22730
27 Yakima, WA 98907-2715

28

Dated at Yakima, Washington this ~ay of July, 2000.

29

30

31

32

¯ Busby

33

34

35 DEFENDANT SELECTIVE EMPLOYMENT, INC’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT SELECTIVE EMPLOYMENT, INC.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION-8 263901b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

 </s> Ryan M. Edgley

Halverson & Applegate, P.S.

P.O. Box 22730

4

Yakima, WA 98907-2715 Telephone: (509) 575 6611

5

6 Attorneys for Defendants Zirlde and Matson 7

Honorable Fred VanSickle

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on
14 behalf of all other similarly situated,

15

Plaintiffs,

NO. CY-00-3024-FVS

16

17

18

19 ZIRKLE FRUIT CO., a Washington corporation, MATSON FRUIT
2O COMPANY, a Washington corporation)

21 and SELECTIVE EMPLOYMENT )

22 AGENCY, INC., a Washington

)

23 corporation, 24

)
)
Defendants. )

25

)

REPLY MEMORANDUM SUPPORTING DEFENDANTS’ MOTION TO DISMISS-RULE 12(b)(6)

26

27

Defendants Zirkle Fruit Co. CZirkle") and Matson Fruit Co. ("Matson") submit

28 this brief memorandum clarifying the reasons justifying dismissal of the plaintiffs’

29 Complaint. Contrary to the plaintiffs’ attempted distortion, the defendants are not

3O arguing that plaintiffs must plead "reams of information about each and every illegal

31 employee they have hired," before proceeding with a claim. (Plaintiffs’ Response, p. 7).
32 Rather, Zirlde and Matson have moved to dismiss the Complaint because:
33

34

1. The plaintiffs have not made any well-pied allegation that Zirlde or

REPLY MEMORANDUM SUPPORTING DISMISSAL

LAW OI=~CES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH FOURTH ST~’cr -- E O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

Matson violated 8 U.S.C. § 1324(a)(3).

2.

The plaintiffs’ allegations fail to adequately plead fraud under Fed. R.

Civ. Pro. 9(b); and cannot state necessary elements of RICO "mail fraud," 4

5

as a matter of law.

6

3.

The plaintiffs’ own allegations and theory of their case demonstrate they

7

do not have standing to pursue the claims they attempt to raise.

8

Certainly, Zirkle’s and Matson’s Motion To Dismiss pursuant to Fed. R. Civ. P.

9 12(b)(6) requires the court to accept all well-pied allegations as true. Peloza v.
10

11 Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). Further, mindful of the

12 plaintiffs’ potential opportunity to amend their pleadings, within the limits of Fed. R.

13 Cir. P. 11, Zirkle and Matson agree that each of the plaintiffs’ various claims should be

14 dismissed only if "the plaintiff can prove no set of facts in support of his claim which 15 would entitle him to relief." Terracorn v. Valley Nat’l Bank, 49 F.3d 555, 558 (9th Cir. 16

17 1995).

18

Although cited in Plaintiffs’ Response, p.4, the plaintiffs fail to acknowledge the

19 Terracorn decision affirmed the dismissal of an action pursuant to Fed. R. Civ. P.
20 i2(b)(6). Like the defendants in Terracorn, Zirkle and Matson are seeking dismissal 21
based on the interpretation of federal law - in this case, the Immigration and 22
23 Nationality Act and the Racketeer Influenced and Corrupt Organizations Act (RICO).

24 Assuming for purposes of this motion to dismiss that any and all facts potentially

25 encompassed by plaintiffs’ general allegations are true1, the plaintiffs still have not

26 adequately pled a violation of the law; nor do their allegations establish the requisite 27
standing to pursue the purported RICO claims. 28

29 I. 3O

Plaintiffs Have Not Made Sufficient Allegations To State A Claim That 8 U.S.C. § 1324(a)(3) Was Violated.

31

Pleading a violation of 8 U.S.C. § 1324(a)(3) requires allegations that Zirkle and

32 Matson hired unauthorized aliens with actual knowledge that at least 10 such 33

34 1 If necessary, Zirkle and Matson will - after permitting discovery - present evidence establishing the factual inaccuracy of

REPLY MEMORANDIYM

SUPPORTING DISMISSAL

9.

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 Nom-~ Foumzq STarm -- P. O. Box 22730
YAKIMA, WASHINGTON 989q7-2715
Plao~4~ 575-6611

I individual aliens had ’~een brought into the United States in violation of [8 U.S.C. §
2 1324(a)]." 8 U.S.C. § 1324(a)(3)(B)(ii)(emphasis supplied). The remainder of subsection 3 4 1324(a) prohibits ’%ringing~’ an alien into the U.S. when such is done by another
5 person who also knew the individuals were aliens, and either: (1) brought said

6 individuals into the U.S. at a place other than a designated port of entry, or (2) had

7 knowledge or acted with reckless disregard for the fact that the individuals did not

8 have prior official authorization to enter the United States. See: 8 U.S.C. §

9 1324(a)(1)(A)(i) & 1324(a)(2).
10

11

The plaintiffs’ Complaint contains numerous allegations that Zirkle and Matson

12 knowingly hired unauthorized aliens, none of which are sufficient to state a claim for

13 violation of 8 U.S.C. § I324(a)(3).2 Those allegations, without more, would merely
14 establish violation of 8 U.S.C. § 1324a(a)(1)(A), which is not a RICO predicate act. 15
Absent a well-pied allegation that Zirkle and Matson had actual knowledge about 16 17 individuals being "brought into" the U.S. in violation of 8 U.S.C. § 1324(a), as set
18 forth above, the Complaint is insufficient.

19

in this regard, the plaintiffs have made a single cursory and vague allegation

20 against each of the defendants, Zirkle and Matson. They allege Zirkle and Matson had
21 knowledge certain unauthorized alien employees were "either smuggled into the U.S.
22 23 and/or harbored once in the U.S." (Plaintiffs’ Response, pp. 5-6)(emphasis added).
24 The argument suggested by Plaintiffs’ Response, at p. 5-6, is that Zirkle and Matson

25 knew workers were unauthorized aliens. Therefore, under an erroneous interpretation

26 of United States v. Kim, 193 F.3d 567 (2"d Cir. 1999), Zirkle and Matson’s hiring the
27 aliens constitutes ’%arboring." The plaintiffs’ circular argument is completed by
28 29 concluding Zirkle and Matson hired the aliens knowing they would be ’~harbored" as a

3O 31 p2laPilnatiinfftsi’ffasl’lergelaitaionncse, oinn sUunpipteodrtSotafteasmv.oKtiiomn, 1fo9r3sFu.m3dm5a6r7y(j2u"dagmCeirn.t1. 999), at p. 6 of Plaintiffs’ Response, is erroneous,

32 First, as explained below, an allegation that Zirkle or Matson had knowledge of"harboring" is insufficient to establish the

33

employment of aliens violates 8 U.S.C. § 1324(a)(3). Second, the Court of Appeals did not state (as plaintiffs attempt to imply) that knowingly hiring an unauthorized alien, without more, constitutes "harboring." Rather, the Kim decision

34 expressly requires proof the defendant engaged in conduct "to prevent government authorities from detecting [the alien’s]

unlawful presence" to establish "harboring." ld. at p. 574.

REPLY MEMORANDUM

SUPPORTING

DISMISSAL -

3

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NogrH FoI.~rH S’r~e-’r -- P. O, BOX 22730
YAKIMA, WASHINGTON 98907<2715
PHONE 575-6611

result of the hiring.

However, the allegation that defendants had knowledge about any aliens being

4 ’~harbored once in the U.S." is insufficient to plead a violation of 8 U.S.C. § 1324(a)(3). 5 As noted above, this statute requires knowledge that the subject aliens were "brought

6 into the United States" in violation of the law. Thus, the law explicitly relied upon by

7 plaintiffs is not triggered by knowledge that an alien was "harbored" once he or

8 she was in the U.S. By enacting separate provisions, Congress drew a distinction 9 10 between activities that constitute unlawfully bringing an alien into the U.S., and
11 activities that constitute unlawfully harboring an alien.

12

As a penal statute, 8 U.S.C. § 1324(a) must be strictly construed. United States

13 v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977). The plaintiffs’ assertion that Zirkle and

14 Matson had, as an alternative, actual knowledge of ’%arboring~’ would erroneously

15 expand the statutory prohibition.
16

17

If plaintiffs have standing to pursue RICO claims, they should be permitted to

18 proceed only if they have a reasonable basis to allege Matson and]or Zirkle had actual

19 knowledge that individual alien employees had been "brought into" the U.S. in

20 violation of 8 U.S.C. § 1324(a), and amend their Complaint accordingly. Conversely, 21
this action should not proceed based on plaintiffs’ theory that Zirkle and Matson can be 22
23 charged with knowledge that alien employees were ’~harbored," simply because they

24 hired the employees; nor should this action proceed relying on any allegation by the

25 plaintiffs about alien employees being ’~harbored once he or she was in the U.So"

26

27 28 II. 29

Plaintiffs Have Not Adequately Pied RICO "Mail Fraud," And Cannot Establish Necessary Elements Of "Mail Fraud."

30

The Plaintiffs’ Response (at p. 8, footnote 9; and p. 11) concedes the pleading

31 requirements of Fed. R. Civ. P. 9(b) governs their allegation of "marl fraud," and
32

33 requires them to plead "the time, place, and specific content of the false

34 representations as well as the identifies of the parties to the misrepresentations."

REPLY MEMORANDUM

SUPPORTING DISMISSAL

4

~ OFFICES OF
HALVERSON & APPLEGATE, ES,
311 No~r~ Fo~ ST~rr -- E O, Box 22730
YAKIMA, WASHINGTON 98907-2715 Puo~’~ ~7~6611

1 Schreiber Distrib. Co. v. Serv-WeIl Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir.

2 1986). Further, the plaintiffs acknowledge they have failed to plead the time of the
3 alleged mailings and the identities of the individuals who prepared and marled the
4

5 allegedly false I-9 documents. (See: Plaintiffs’ Response, pp. 13-14).

6

Plaintiffs’ own allegations also establishes the material content of the alleged I-9

7 Forms are false representations "that particular employees are authorized to be

8 employed." (Plaintiffs’ Response, p. 13) (emphasis added). But the plaintiffs do not

9 plead the identities of any of the particular employees who were the subject of the
10
11 allegedly false I-9 Forms.

12

Nevertheless, plaintiffs suggest they should be afforded an exception to these

13 pleading requirements because (they argue) the information is uniquely within the

t4 defendants’ possession. The contradiction in plaintiffs’ arguments is readily apparent. 15

16

17

The plaintiffs themselves allege the I-9 Forms were mailed to the INS as part of

18 a "scheme," and are supposedly in the possession of the INS. Moreover, the plaintiffs

19 represent to the court that they have obtained, from the INS, information about the

2O defendants allegedly mailing I-9 Forms to the INS to facilitate the hiring of
21 unauthorized workers. (See: Plaintiffs’ Response, p. 18, footnote 17)3. Thus, according 22 23 to the plaintiffs’ own allegations and representations to the court, the information
24 about alleged mailings is not uniquely in the defendants’ possession, and such 25 information has in fact been provided to the plaintiffs.4

26

27 3 The defendants have made their own Freedom of Information Act requests to the INS for copies of all information provided

28 to the plaintiffs. The information received by plaintiffs from the INS did inform the plaintiffs about the only time that one of

29

the defendants mailed I-9 Forms to the INS, as well as the identity (author of cover letter) of the individual who placed the documents in the mail. However, pleading that specific information would establish the mailing was actually in response to

3O an I-9 audit by the INS, was not done at a time that would facilitate hiring any workers and was not intended to deceive the

INS (because the very purpose of the audit was for the INS to check the accuracy of the documents). Plaintiffs’ failure to 31 plead this specific information, which they obtained prior to filing this action, demonstrates their realization that the mailing

32 of I-9 Forms pursuant to an I-9 audit does not facilitate the hiring of any workers, was not intended to deceive the INS, and does not support an allegation of"mail fraud." .
33 4 The court should also note the plaintiffs’ apparent admission that they were denied access to the actual I-9 Forms by the

34 INS. (See Plaintiffs’ Response at pp. 13-14). According to the plaintiffs’ allegations, the mailed I-9 Forms are in the possession of the INS, to whom the plaintiffs have submitted a Freedom of Information Act request. However, despite the

REPLY MEMORANDUM

SUPPORTING DISMISSAL

5

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S. 311 No~. Foo~. S~ -- P. o. ~o~ zw0
YAKIMA, WASHINGTON 98907-2715
PHONE 575~6611

1

But despite having allegedly received this information through their pre-filing

2 investigation, the plaintiffs still fail to plead the time of the alleged mailings, the 3
specific content (ie. the identities of the "particular employees" who were hired using 4 5 false documents), or the identity of any person who participated in preparing the
6 alleged mailings. This pleading is insufficient, warranting dismissal pursuant to Fed.

7 R. Civ. P. 9(b).

8

Additionally, mailing inaccurate I-9 Forms to the INS cannot constitute "mail

9 fraud," and therefore cannot constitute a RICO predicate act, as a matter of law. First,
10
1! the INS maintains a Central Index System, and has the information necessary to

12 confirm the employment authorization of each alien for whom an I-9 Form is

~3 submitted. See: Villegas-Valenzuela v. Immigration and Naturalization Service, 103

14 F.3d 805 (9th Cir. 1996). And, in fact, the INS is expected to make such confirmations

15 when those forms are received. See: Prepared response of the Department of Justice, 16 17 quoted in 1986 U.S. Code Cong. And Adm. News, p. 5665.

18

In there response, the plaintiffs do not articulate how the mailing of I-9 Forms to

19 the INS, when there is no obligation to do so in conjunction with hiring employees,

20 could possibly be intended to deceive the INS. Instead, the plaintiffs’ rely on cases
21 dealing with the mailing of fraudulent tax returns that are, again, easily 22
distinguished. Taxpayers are required to submit tax returns, and the IRS does not 23
24 have the ability to investigate or confirm the accuracy of all tax returns. Conversely,

25 employers are not required to submit I-9 Forms to the INS whenever they hire

26 employees, and the INS does have the information, without having to conduct an audit
27 or investigation, to confirm the authenticity of each alien’s work authorization 28

29

3O plaintiffs’ argument that they have a right to access and use the I-9 Forms, those documents were not provided to plaintiffs.

Furthermore, the eases cited by plaintiffs for the proposition that taxpayers can be compelled to provide discovery 31 of their tax returns are easily distinguished. In those eases, discovery of information pertaining to the taxpayer is obtained

32 from the taxpayer himself, who is a party to the litigation. Here, the employees about whom the I-9 Forms pertain, are not

33

parties to this litigation. Congress designated that employers, not an agency such as the IRS, would be the repository of the completed I-9 Forms. 8 U.S.C. § 1324a(b)(3). And while the I-9 Forms are maintained in the possession of employers, they

34 cannot be used for purposes other than the enforcement of the Immigration and Nationality Act and certain criminal statutes

inapplicable to this case. 8 U.S.C. § 1324a(b)(5).

REPLY MEMORANDUM

SUPPORTING DISMISSAL

6

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S. 311 No~. Fo~ S~ -- Z O. B~ ZZ~0
YAKIMA, WASHINGTON 98907-2715
Pt~ONE 575-6611

documents.

Second, the plaintiffs cannot show a "specific intent to deceive or defraud" the

INS, within the meaning of the "mail fraud" statute (18 U.S.C. § 1341). To state a 4
claim for "mail fraud," the necessary "intent must be to obtain money or property from 5
the one who is deceived." United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989). In

7 Lew, the Court of Appeals reversed the convictions of an attorney who had allegedly
8 committed "mail fraud" violating 18 U.S.C. § 1341 when he mailed false and inaccurate 9
documents to the U.S. Department of Labor and to the INS, to obtain permanent 10
resident alien status for foreign workers. The Court of Appeals reversed the 11 12 convictions because there was no evidence Lew intended to obtain money or property
13 from the Department of Labor, or from the INS. See also: United States v. Mitchell,

t4 867 F.2d 1232, 1233 (9t~ Cir. 1989)(reversing "mail fraud" conviction because "although

15 both indictments allege a scheme to obtain money and property, neither alleged a

16 scheme to obtain them from the government body" which was deceived).
17

18

In this case, the plaintiffs cannot plead an allegation that Zirkle or Matson

19 intended to obtain money or property from the INS; thereby requiring dismissal of

20 their claim pursuant to Fed. R. Cir. P. 12(b)(6). See: Monterey Plaza Hotel, Ltd. v.

21 Local 483 of the Hotel and Restaurant Employees Union, 215 F.Sd 923 (9th Cir. 2000) 22
(upholding Fed. R. Civ. P. 12(b)(6) dismissal of RICO claims alleging "mail fraud," 23
24 because plaintiff failed to plead defendant’s intent to obtain money or property from

25 the one allegedly deceived).

26

The plaintiffs’ reliance on the Second Circuit decision in United States v. Kim,

27 193 F.3d 567 (2~a Cir. 1999) is, again, erroneous. In Kim, the defendant was convicted 28
29 of "knowingly harboring an illegal alien," not the RICO predicate act of "mail fraud."

3O Thus, Kim provides no support for the plaintiffs’ argument (See: Plaintiffs’ Response,

31 at pp. 10-11) that mailing false I-9 Forms can constitute an actionable RICO

32 "employment scheme." 33
34

REPLY MEMORANDUM

SUPPORTING DISMISSAL

7

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NO~H FOwaTtt Scv,~r P.O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHOI~ 575-6611

1 III. Plaintiffs Do Not Have Standing To Pursue RICO Claims.
2 To pursue a claim for damages under RICO, "the plaintiff only has standing if,
3 4 and can only recover to the extent that, he has been injured in his business or property
by the conduct constituting the violation." Imagineering, Inc. v. Keiwit Pacific Co., 976

F.2d 1303, 1310 (9th Cir. 1992); quoting Sedirna, S.P.R.L.v. Imrex Co., 473 U.S. 479,

7 495, 87 L.Ed.2d 346, 105 S.Ct. 3275 (1985). Moreover, a "showing of’injury’ requires

8 proof of concrete financial loss," Irnagineering, supra at p. 1310, and "speculative" 9 10 injuries are "not compensable under RICO." Id. at p. 1311.

11

In this case, the plaintiffs’ do not claim their damages were caused by the

12 alleged conduct constituting a violation of § 274(a)(3) of the Immigration and
13 Nationality Act (8 U.S.C. § 1324(a)(3)), nor by the alleged conduct they argue
t4 constitutes RICO "mail fraud." Instead, the plaintiffs attempt to claim loss caused by a 15
broader "illegal immigrant hiring scheme." Moreover, the plaintiffs agreed to work for 16 17 the wages and benefits they were paid, and have not alleged "concrete financial loss,"
18 within the meaning of the imagineering decision. Nor would their allegations, even if

19 true, show that they were directly injured by the conduct attributed to the defendants.

20

The plaintiffs assertion of damage is premised on an allegation that the hiring of

21 unauthorized aliens reduced the amount of wages Zirkle and Matson would otherwise
22

23 have paid. The first error of this argument is the plaintiffs’ continuing failure to

24 acknowledge that the mere employment of unauthorized aliens does not violate RICO,

25 and that plaintiffs "can only recover to the extent that, he has been injured in his
26 business or property by the conduct constituting the violation." Imagineering, supra at 27
p. 1310. The employment of unauthorized aliens who have crossed the border without 28 29 assistance from others, or without the employer’s knowledge of such assistance, is not a
3O violation of RICO. The plaintiffs allege lower wages resulted from the employment of

3~ unauthorized workers, regardless of whether the workers were "smuggled" into the
32 U.S. by a third party. Thus, the conduct that plaintiffs allege caused their damages is 33 34 not limited to actions that would violate RICO.

REPLY MEMORANDUM

SUPPORTING DISMISSAL

8

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH Fourpa STREET -- P. O, BOX 22730
YAKIMA, WASHINGTON 98907-2715 PHONE 575-6611

1

The second flaw in plaintiffs’ argument is the failure to show "concrete financial

2 loss." Although the plaintiffs in Irnagineering alleged they would have received 3 4 specifically identified business that had been obtained by Kiewit through alleged

5 illegal conduct, the Ninth Circuit Court of Appeals did not accept that conclusory

6 assertion. Instead the Court of Appeals took notice of the involved third party’s legal

7 right to rebid the project and held, as a matter of law, that reliance on an assumption 8 the contracts would have been awarded to contractors with whom plaintiffs were 9
aligned precluded showing "concrete financial loss." Irnagineering, supra at pp. 131010 11 1311. Additionally, the Court of Appeals reasoned that even if plaintiffs had obtained
12 the subcontracts at issue, there was "no guarantee [they] ... would not be substituted

13 during the pendancy of the contract." Id. at p. 1311.

14

It is important to note the decision in Irnagineering affirmed the dismissal of

15

16 RICO claims pursuant to Fed. R. Civ. P. 12(b)(6). The court refused to accept the

17 plaintiffs’ conclusory allegation that their alleged injuries were compensable under

18 RICO, and instead analyzed the substance of the plaintiffs’ theory of damages. Id. at

19 p. 1310 ("...that characterization must be challenged on several bases.") The court 20 held: "Although plaintiffs assert that if specified contracts had not gone to Kiewit those 21
contracts would have been awarded to the plaintiffs’ prime contractors, that cannot be 22 23 established." Id.

24

Here, the plaintiffs assert that Zirkle and/or Matson hiring unauthorized aliens

25 depressed employee wages below the level Zirkle and Matson would have otherwise
26 been required to pay, to employ an adequate work force. However, the amount of wage 27
Zirkle and Matson are required to pay, to employ an adequate work force, depends on 28 29 the amount paid by competitors for "unskilled, low-wage laborers"~ in the relevant

30 geographic market. Thus, contrary to plaintiffs’ argument, the wage levels at

31 "similarly situated agricultural facilities" are not "irrelevant." There is no guarantee
32 the alleged unauthorized aliens would not be substituted, at the same wage rate, by 33

34 s Plaintiffs’ Complaint, ¶ 21.

REPLY MEMORANDUM

SUPPORTING DISMISSAL

9

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NOm~H FOLrm’~ S’r~L=’r -- P.. O. Box 22730 YAKIMA, WASHINGTON 989~7-271~ PHo~m 575-6611

1 workers with similar skill levels from throughout the Yakima Valley. Compare:

2 Irnagineering, supra at p. 1311 ("...no guarantee that the WBE or MBE subcontractor 3

4 chosen would not be substituted...").

5

More importantly, the plaintiffs and the class they purport to represent willingly

6 accepted employment for the level of wage Zirkle and Matson paid to them. This

7 would seem to preclude proof of "concrete financial loss," absent some allegation that

8 Zirlde and Matson subjected the plaintiffs to coercion or fraud preventing them from

9 earning wage levels that would have otherwise been available in the relevant market.
10

11

Also, the willingness of the plaintiffs, who are legally authorized workers, to

12 work for the wage rates paid by Zirkle and Matson refutes the plaintiffs’ conclusory

13 assumption that unauthorized aliens employed by Zirkle and Matson were compelled
14 to work for wages lower than the amount necessary to obtain authorized workers. 15
(Plaintiffs’ Complaint, ¶ 22). That assumption is additionally refuted by the law 16 17 specifically the National Labor Relations Act, which the plaintiffs concede grants
18 unauthorized aliens a protected right to engage in concerted activity for the betterment

19 of their wages. (Plaintiffs’ Response, p. 24). As in Imaggneering, supra at p. 1310-1311,

2O the court is not required to accept at face value the plaintiffs’ assertions they have
21 suffered injury, when such assertions cannot be reconciled with the law establishing
22 23 the rights of third parties.

24

The plaintiffs’ argument that they were directly harmed is also erroneous. As

25 noted above, their theory of damages assumes an intervening inability of alien workers

26 to seek and obtain higher wages, and further assumes that Matson and Zirkle have
27 exploited those aliens by employing them at wages lower than the market rate.
28 29 Accordingly, the plaintiffs’ claim is based on Zirkle and/or Matson’s alleged conduct
3O directed at third parties. There is no direct relationship between Zirkle’s or Matson’s

31 alleged employment of unauthorized aliens, and the wage rates for which the plaintiffs
32 willingly agreed to work. Rather, there are many intervening causes, not the least of 33
which is the availability of other workers in the relevant market. 34

REPLY MEMORANDUM

SUPPORTING DISMISSAL

10

LAW OFFICE~ OF
HALVERSON & APPLEGATE, ES.
31I Nogr~ Fou~’r~ STm~r -- P. O. Box 22730
YAKIMA, WASHINGTON 98907-2715
PHONT 575-66"11

1

2 IV. CONCLUSION
3
For the reasons set forth above, and by the defendants’ initial Memorandum
4
5 Supporting the Motion To Dismiss, the plaintiffs’ Complaint should be dismissed with

6 prejudice.

7

Respectfully submitted this ~day of August, 2000.

8

9

10

Ryan IV[. Edgley (WSBA # 1~71) ~

11

Halverson & Applegate, P.S. ~,

12

Attorneys for Defendants Zirkle & Matson

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

3O

31

32

33

34

REPLY MEMORANDUM

SUPPORTING DISMISSAL

11

LAW OFFICE5 OF
HALVERSON & APPLEGATE, P.S.
311 Nos’r~ FotraT~ S’mr~ -- P. O. Box 22730 YAKIMA, WASHINGTON 989q7-2715
P~o~¢~ 575-6611

 </s> 09/08100 08:55 FAX 2066230594

tt~GENS BEI~AN

[~002

SD! W. RiV’ERSIDE SUITE ’~030
,~KANE, WA ~201

ORIGINAL

1 Steve W. Berman, WSP~k No. 12536 2 Andrew M. Volk, WSBA No. 27639
HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 4 (206) 623-7292
5 Howard W. Foster 6 JOHNSON & BELL, LTD
55 East Monroe Street, Suite 4100 7 Chicago, Ill. 60603 $ (312) 372-0770
Attorneys for Plaintiff 9

FILED iN THE
EASTERN DiSTRiCT O,F WASHINGTON
SEP 0 000
JAME~ R, I.=ARSEN, CLERK
ick.le

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF WASHINGTON

AT YAKIMA

12

13 OLIVIA MENDOZA and JUANA MENDIOLA, individually and on behalf of
14 all others similarly situated,

15

Plaintiffs,

No. 00 CY 3024.FVS

16

17

lg ZIRKLE FRUIT CO., a Washington corporation, MATSON FRUIT COMPANY
19 a Washington corporation, and
20 SELECTIVE EMPLOYMENT AGENCY, INC., a Washington corporation,

21

Defendants.

22

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN RESPONSE TO NEW ISSUES RAISED IN DEFENDANTS’ REPLY AND AT ORAL ARGUMENT

23

24

25

26

09/08/00 08:56 F/~ 2066~3Q.$94

IIA~ENS BERI~AN

~003

1

Plaintiffs, Olivia Mendoza and Juana Mendiola, submit this brief in response to

2 issues raised for the ftrst time in defendants’ reply bzieP and by the Court at oral

3 argument. While plaintiffs believe that their Complaint sufficiently pleads injury to

4 business and property and causation, if the Court disagrees plaintiffs respeethally

5 request that any dismissal allow them leave to file an amended complai~tt whicla will

6 allege causation and damages with greater specificity based upon consultation with

7 their expert economist.

8

I. INTRODUCTION

9

In their reply brief defendants argued for the first time that: (a) plaintiffs’

10 alleged injury, depressed wages, was not compensable as an injury to "business or

11 property," which is required in order to confer standing under RICO, and (b) such an

12 injury did not constitute a "concrete financial loss" as that term has boon used by the

13 Ninth Circuit Court of Appeals. At oral argument on the Motion before the Court on

14 August 31, 2000, the Court asked counsel to comment on the Commercial Cleardng

15 case. Because that case is unpublished, counsel had not outlined for the Court m

16 writing the differences between that case and this case.

17

The Court indicated these arguments would be considered in deciding the

18 Motion. Accordingly, plaintiffs submit this memorandum to respond to the Court’s

19 quest.ion about Commercial Cleaning and defendants’ new arguments in writing.

20 Plaintiffs believe that this memorandum and prior briefing amply demonstrate that

21 the Complaint should be sustained as written. If the Court disagrees, however, and

22 does dismiss the Complaint, plaintiffs request that the Court allow them leave to file 23

24

I Defendants’ reply brief was filed many weeks late. While plaintiffs did not object

25 to the untimeliness of tha$ briet~ they believe they should have the chance to respond to

26 the new arguments in writing.

PLAINTIFFS’ SUPPLEMENTAL

-1-

MNMORANDIYM

0~/08/00 08:$6 FAX 206~230594

HAGENS BERgAN

~004

1 an amended complaint which will incorporate consultations with their expert 2 economist and plead in greater specificity how plaintiffs’ alleged injuries can be proven

3 and calculated.

4

II. COMMERCIAL CLEANING~ DOES NOT SUPPORT DEFENDANTS’

POSITION ON STANDING AND CAUSATION HERE 5

At oral argument, the Court asked counsel how this case is different from the 6

Commercial Cleanil~g case. While counsel attempted to answer the question at 7
argument, counsel would Like to briefly respond to this new authority in writing,s 8

The Commercial Cleardng case was dismissed primarily on standing grounds 9

under Holmes u. Securities Investor Protection Corp,, 503 U.S. 258, 268 (1992) - the 10

same case upon which the defendants base their "standing" argument here. 11

Commercial Cleaning, 2000 WL 545126. in holding that the plaintiffs in Commercial 12

CIeardng had failed to allege "direct" injury within the meaning of Holmes, the court 13

noted that the hiring of illegal immigrants at a reduced rate of pay was only the first 14

step in a lengthy causation chain: 15

16

Tdehfeecnodmanptlah,~irmes,,tilalellgegalesimthme ifgorllaonwtsinagt caaruesdauticoendchraatien:of pay;

17

which also enables it to avoid paying federal and state taxes,
workers’ compensation insurance, and other costs for these

18

employees; which enables it to make lower bids than the plaintiff and other competitors for office cleaning contracts;

19

which results in it obtaining a larger market share of the cleaning business and ultimately prevents the plaintiff ~rom

20

obtaining more business.

21

22

2 Commercial Cleaning Servs. v. Colin Service Sys., Inc., 2000 WL 545126 (D. Conn.

23 Max. 21, 2000).

24

a Plaintiffs did not cite the Commercial Cleaning opinion in their original brief

25 because that decision is unpublished. A copy of that decision is provided together with 26 this memorandum for the convenience of the Court and defendants.

PLAINTIFFS’ SUPPLEMENTAL

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1.’t45.10 I~."/0 MIN DOC

OFT’ICiRI~ [~ ~g$,TTL! DllO|/(|l~ Los "FE~LI~HONE (Z06) -.2).729l. FACSImiLe. (2ha)

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1 Commercial Cleaning, 2000 WL 545126 at *5. In other words, the sole step in the 2 plaintiffs" proof here - that hiring illegal immigrants brings down wages - was but the

f~rst s~ep in a lengthy chai~ of causation m Commercial Cleaning. Under the circumstances, plaintiffs’ injuries here are far more clirec$ than the

plaintiff-competitor’s injuries were in Commercial Cleaning. Hence, Commercial 6 Cleaning does not support defendants’ position on standing here,~

7 IIi. LOST WAGES ARE A TYPE OF "BUSINESS OR PROPERTY’ UNDER RICO~
8 For the first time m the~ reply brief (at page 8) and then again at oral
9 argument, defendants argued that plaintiffs’ alleged injuries are not injuries to
10 business or property. Defendants are wrong.
11 Virtually every court to consider the question has held that lost wages are
12 compensable under 18 U.S.C. § 1964(c) as ’%usiness or property." E.g., Rice v.
13
Janovich, 109 Wash. 2d 48, 61, 742 P.2d 1230, 1237 (1987), er~ bar~c,~’Federal cases 14
since Sedima have specifically held that lost wages may be recovered in cavil RICO 15 16 actions, and we follow that conclusion."); Feminist Women’s Health Center u. Roberts,

17

18

4 As plaintiffs informed the Court at oral argument, plaintiffs ia Commerical

19 Cleaning are appealing that decision. As soon as the Second Circuit has ruled,

20 plaintiffs will promptly provide copies of the decision to defendants and the Court. If

21 competitors cannot bring a RICO claim for violations of § 274 (as the district court

22 found in Commercial Cleaning) and employees cannot either (as defendants here

23 contend), then an anomalous situation arises whereby Congress has expressly created a 24 private right of action for violations of § 274, yet no one has standing to bring a claim.

25

s RICO confers standing to sue on a plaintiff"injured in his business or property..

26 18 U.S.C. § 1964(c).

PLA/NTIFFS’ SUPPLEMENTAL

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1 1989 WL 56017 at "12 (W.D. Wash. 1989); L~bertad v. Welch, 53 F.3d 428, 487 (1~t Cir.

2 1995); Hur~$ v. Weatherbee, 626 F. Supp 1097, 1100 (D. Mass, 1986); Rodon~ch v. House

3 Wreckers Union, Local 95, 627 F. Supp. 176, 180 (S.D.N.Y. 1985).

4

IV. LOST WAGES ARE "CONCRETE FINANCIAL LOSS"

5

Again for the first time in their reply, defendants contended plaintiffs claims

6 "faill] to show concrete financial loss." Reply at 9, lines 1-2 (internal quotation

7 omitted). However, a close examination of this concept and how it has been applied by

8 the Ninth Circuit indicates that it has no application to this ca~e.

9

Plaintiffs’ Claims Satisfy The Supreme Court’s Test for Standing

10

The source of the "concrete financial loss" rule is the Supreme Court’s analysis of

11 Article III’s "case or controversy" reqttizement, which is required in order to coz~fer 12 federal subject matter jurisdiction. The Supreme Court held: "To establish an Art. III

13 case or controversy, a litigant first must clearly demonstrate that he has suffered an 14 injury in fact. That injury, we have emphasized repeatedly, must be concrete in both 15 a qualitative and temporal sense. The complainant must allege an injury to himself 16 that is distinct and palpable.., and the alleged harm must be actual or imminent, not 17 conjectural or hypothetical."6

15

Under this standard, the Supreme Court has gone so far as to find standing for

19 an environmental organization which alleged that the "adverse environmental impact" 20 of a railroad rate increase would cause its members "to suffer economic, recreational 2t and aesthetic harm." Whitrnore, 495 U.S. at 159. Specifically, the environmental 22 group claimed the rate increase, "would ... cause increased use of nonrecyclable 23 commodities as compared to recyclable goods, thus resulting in the need to use more

24 natural resources to produce such goods, some of which resources might be taken from 25

26

6Wh~tmore v, Arkansas, 495 U.S. 149, 155 (1990) (emphasis added).

PLAINTIFFS’ SUPPLEMENTAL

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1 the Washington area, and resulting in more refuse that might be discarded in national 2 parks in the Washington area." Id. This highly speculative injury nevertheless

3 survived a motion to dismiss for lack of standing. Id. In the instant case, plaintiffs’

4 claims of depressed wages are not speculative at all. The complaint alleges their wages

5 have been depressed as a result of defendants’ illegal immigrant hiring scheme; thus

6 the injury has occurred3

7 B. 8

Plaintiffs Satisfy the Ninth Circuit’s Test for Standing/Concrete Financial Loss

Controlling Ninth Circuit cases on "financial loss" simply stand for the 9

proposition that a plaintiff who has alleged an injury which has not manifested itself 10

lacks standing to sue under RICO. In Oscar v. University S~uden.ts Co-Operative Ass’n, 11
965 F.2d 783, 785 (9th Cir.), cert. denied, 506 U.S. 1020 (1992), the Court affirmed the 12

dismissal of a RICO complaint in which plaintiff, who rented her apartment, claimed 13

the value of the building in which she lived was depressed by her neighbors’ drug 14

I5

16

7 "Plaintiffs and members of the Class have been damaged by reason of defendants’

17 RICO violations because they have been employed by Matson and Zirkle at wages 18 which were depressed as a direct result of the Illegal Immigrant Hiring Scheme. 19 Plaintiffs and members of the Class were the intended and direct victims of the 20 defendants’ RICO scheme and their injury, working at depressed wages, was both 21 intended and foreseeable. As a direct result of this scheme defendants were able to 22 profit," Complaint, ¶ 56. See NOW v_ Scheidler, 510 U_S. 249, 256 (1994) ("[A]t the 23 pleading stage, general factual allegations of injury resulting from the defendant’s 24 conduct may suf~ce, for on a motion to dismiss we presume that general allegations 25 embrace those specific facts that are necessary to support the claim.") (reversing 26 dismissal of RICO claim for lack of standing).

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dealing, and further, that she had suffered "discomfort and annoyance." The Court

held that as a tenant, plaintiff had not suffered a "tangible fmancia~ loss" from the

alleged decrease in the property value, and also held that personal injuries did not

4 satisfy § 1964(c)’s requkement that a RICO plaintiff suffer an injury to 1)usiness or

5 propertyS Id. This precedent cannot apply to the instant case, alleging lost wages, 6 which as indicated, supra, are compensable under RICO.s As for F/e£schhauer v. 7 Felt~er, 879 F.2d 1290, 1299 (6m Cir. 1989), cert. denied, 494 U.S. 1027 (1990), the

8 Court there simply held that: "[r]ecovery for physical injury or mental suffering is not

9 allowed under RICO because it is not an injury to business or property."

10

Likewise, in In re Arner£cart Hortda Motor Co, Dealership Realtors Litig., 941 F.

I1 Supp. 528, 540 (D. Md. 1996), the district court concluded that the Ninth Circuit’s

12 "concrete financial loss Iule" merely requires a plaintiff to allege a "tangible financial

I3 injury." In that case, the plaintiffs were car dealers who brought RICO claims seeking

14 "lost past profits" for sales of vehicles they should have received but did not as a result

15 of a bribery scheme perpetrated by other Honda dealers. In deciding the defendants’

16 motion to dismiss, the Court held that the alleged injuries would be sufficient under

17 the Ninth Circuit’s "concrete financial loss" rule. Id,

18

V. EXPERT TESTIMONY IS OFTEN USED TO KELP ESTABLISH

CAUSATION AND DAMAGES IN RICO AND ANTITRUST CASES 19

Defendants contended at oral argument that the Complaint is worthy of 20

dismissal because the alleged wage depression could have been caused by factors other 21

22

23

s The holding in Oscar followed the Ninth Circuit’s similar decision in Bern v. First

24 State Ins, Co,, 915 F.2d 460, 464 (9th Cir. 1990), in which the Court held that 25 "compensation for the stress of having been without insurance" was not compensable 26 under RICO. O$car, 965 F.2d at 811.

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM

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than the illegal immigrant hiring scheme, and colorfully expressed their belief that

expert testimony could not be used to help establish damages. The Cou~t also

3 expressed concern as to how damages could be proven in this case. Accordingly,

4 plaintiffs will briefly discuss this issue that was not raised prior to oral argument.

5

In considering how causation and damages will be proven in this case, it is

6 helpful to examine antitrust law on which RICO was "modeled." Holmes, 503 U.S. 258.

7 The law is settled that antitrust "[p]laintLffs need not prove that the antitrust violation

was the sole cause of their injury, but only that it was a material cause." Sullivan v. 9 Na$~ortal Football League, 34 F.3d 1091, 1103 (1"t Cix. 1994), reh’g denied, amended sub 10 1ram., 1994 U.S..App. Lexis 88393 (1at Cir, 1994), cert. denied, 513 U,S, 1190 (1995).

11 See also, William Inglis & Sons Baking Co. v. Contin, en~al Bakil~g Co., 942 F.2d 1332, 12 1339 (9th Cir. 1991), amended on other grounds, 981 F.2d 1023 (9t~ Cir. 1992) (’~In order

13 to establish liability... [plaintiff] was requi~ed to prove the existence of some causal

14 connection between defer~dant’s wrongful act and some loss of anticipated revenue.").

15 Once plaintiffs establish the fact of injury (by showing that the wrongful act has some

16 causal connection with the plaintiffs’ damages), courts relax the evidentiary standards

17 for proving the amount of damages. Syufy Enterprises v. American Multicir~ema, Inc., 15 793 F.2d 990, 1003 (9th Cir. 1986) ("Proof of the amount o~ damages is governed by a

19 less stringent standard of proof than is the fact of injury."), cert. denied, 479 U.S. 10~4

20 (1987).

21

While cases arising under RICO similarly i~volve lost wages and other economic

22 damages which may be inherently di~cult to quantify, such difficulty of proof is

23 typically not considered to be grounds for dismissal. Accordingly, courts have allowed

24 plaintiffs to proceed with RICO cases in which causation and damage a~alysis requires

25 expert testimony so long as the defendants’ RICO violations are a "substantial factor"

26 in causing the plaintiffs’ injuries. E,g., Hecht v. Commerce Clearing House, Inc., 897

PLAINTIFFS’ SUPPLEMENTAL

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~010

1 F.2d 21, 23-24 (2~a Cir. 1990) ("the RICO pattern or acts proximately cause a plaintiffs 2 injury if they are a substantial factor in the sequence of responsible causation, and if

3 the injury is reasonably foreseeable or anticipated as a natural consequence"). The

4 Complaint’s allegations easily establish that defendants’ Illegal Immigrant Hiring

5 scheme was a substantial factor in causing injury to the plaintiffs. Accordingly,

6 plaintiffs should be permitted to prove causation, and the amount of their damages,

7 through expert testimony

8

VI. CONCLUSION

9

For the reasons stated above as well as those stated in p:ior briefing and at oral

10 argument, plaintiffs request that the Court deny the defendants’ motion to dismiss. In

11 the event that the Court does dismiss plaintiffs’ complaint, however, plaintiffs

12 respectfully request that the Court grant them leave to amend their Complaint to

13 make their causation and damage allegations more detailed.

14

DATED this 8~ Day of September, 2000.

HAGENS BERMAN LLP 16

17

18 Steve W. Berman, WSBA #12536

19

Andrew M. Volk, WSBA #27639

Kevin P. Roddy

20

1301 Fifth Avenue, Suite 2900

21

Seattle, WA 98101

(206) 623-7292

22
Howard W. Foster

23

JOHNSON & BELL, LTD.

24

55 E. Monroe St_, Suite 4100 Chicago, IL 60603

25

(312) 872-0770

26

Attorneys for Plaintiffs

PLAINTIFFS’ SUPPLEMENTAL

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DECLARATION OF SERVICE

I, Carrie Scheafer, declare under penalty of perjury under the laws of the State

of Washington that the following facts are true and correct:

6

I am a citizen of the United States, over the age of 18 years, and not a party to

7 or interested in the within-entitled cause. I am an employee of the law firm Hagens

8 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,

9 Washington 98101.

10

On September 8, 2000, I caused an original and one copy of the following

document to be hand delivered to the Clerk of the District Court, Eastern District of

12 Washington, West 920 Riverside Ave., Room 840, U.S. District Courthouse,

13 Spokane, WA., 99201:

14

i also caused a copy of the following document to be served on counsel of

15 record in the manner indicated below:

16

PLAINTIFFS’ SUPPLEMENTAL MEMOR.a2XlDUM IN RESPONSE TO

17

NEW ISSUES RAISED IN DEFENDANTS’ REPLY AND AT ORAL

ARGUMENT (Declaration of Service attached)

18

19

Brendan V. Monahan VELIKANJE, MOORE & SHORE, P.S.

20

405 East Lincoln Ave. P.O. Box 22550

21

Yakima, WA 98907 Attorneys for Defendant Selective

22

Employment Agency, Inc.
( ) u.s.

23 (x) FAX ( ) 1M-ESSENGER

24 ( ) OVERNIGHT MAIL

25

26

DECLARATION OF SERVICE

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09/08/00 09:00 FAX 2066230~94

HAGEN$ BER.~IAN

~ 012

1 R~y~ lg.an M. Ed ley

2 311 North Fourth Street P.O. Box 22730

3

Yakima, WA 98907-2715 Attorneys for Defendants Matson Fruit

4

Company and Zirlde Fruit Co,
( ) u.s. MAr~

5 (x) FAX

( ) MESSENGER

6 ( ) OVERNIGHT MAIL

7 Walter G. Meyer 8 Meyer, Fluegge & _Termey, P.S.
230 South Second Street 9 P.O. Box 22680
Yakima, WA 98907
10 Attorneys for Defendant Zirkle Fruit Co. ( ) U.S. MAre
11 (x) FAX ( ) MI~SSENGER
12 ( ) OVERNIGHT MAIL

13

14

15

Executed on September 8, 2000, in Seattle, Washington.

16

17

18

Carrie Scheafer (~J

I9

2O 21 22

23 24

25

26

DECLARdkTION OF S]~RVICE

-2-

LM~,.LO ~o13 BSC’EX)C

T~LE~ON~ (2r~¢) ~2J’-’.P~~- ¯ I~-~C~IM’If,~ ~,~o6) t;72.0:~’4

09/08/OO 09:00 FAX 2066230594

HAC.~S B~RMAN

013

~ 07 ’00 ~:@4P~ ~OHDLc~ & ~=LL_,LTD ~

CO~CIAL CLEANING SERVICES, L.L,C., l>ieJ.utlff,
COLIN SERVICE SYSTEMS, DqC,, Defendant,
No. Cb’.A. 3:99CV109(CF,
United Sm~ Dis~ct Court, D. ComccdcuL
March 2l, 2000.
Howard Fosmr, Johnson & Be~, Ltd,, C~cago, ~b, ~k I. ~ekE, Ti~y F, Mgls, S~g~i & M~s, New Bd~ Comus, for
hmea S’~liaa, Mario g. Bore]Ji, Day ~¢rry & How~¢ CIwpla~, H~o~ Co~¢u¢, C, ~II~ ~i~s, ~ R. M~. Corydon ~I~, New Y=~, New York. for
RULING ON ~ DEFENDANT’S HOTION TO DISMISS
DRONEY, ~.
I~todu~tioa
"1 Th~ one count Fnmdve =lass scion corn~Izin~ ¯ is ~se ~ks ~s for ~Ron

("~S") f~ ~is ~n~t ~ ~ 1995 p~d
~s, ~Io~ ~im~, ~w~a~ (~em R zdv~ses for ~s) ob~ ~~t, ~us~ ~ ~eg~ work
pracd=s ~m~mm z ~olad~ of ~gre~n ~ N~do~ "~ ~s~ w~, ~ ~ ~w:lv¢ ~ ~, ~ly ~rcs for empi~

h~ ~ga~ ~ ¯ pau~ of r~k~e~ ~vlW by o~der ~ g~e i~ ~ ~ ~v~e
o~ ~ ~ dcf~t for o~ce le~g Is ~e defe~z’s ~fion ~ ~ss ~~ # ii],

~p~d fm ~t ~re ~m 5 y~s or ~," The
B a ~e~czm act wi~ ~e ~g of ~CO, IS U.S,C. ~ 3961(1)(~. ~e ~mplaJ~ p~m ~ ~lcge a ~rn of r~emer~
en~fise ~ over 100 ~ of violin of S
provision b~ ~ ~CO ~di~te off~e. [FN4]

l~Nl. For d¢ pnrpo.~ of d~r~d]~ t~ m~don m

Co~r, ~ We~c 2000 No Claim to Orig. U,$. G~v~. Works

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HAGEN$ BERg.~

S~P ~ .’ ~ ~: 5P~ 3~H~.~’~’ & D-LL, LTD. Z

~014

SI~ C~y (Cite a~: 2000 WI, $4Slg6, "1 t’D.Conn.))
d~s~ of ~e c~t Is ~r~d b~a~ (I) rod, ~ ¯ sep~a~e ~ for ~al, (2) ~ h~s f~ w ~mply ~ ~ Co~’s ~ ~d~ ~ C~ RICO ~a~s. g~ ~ ~,
Dismmsion I. Rule 12(b)(6) Standard *’2 h ’d~kling a n~tion to dis~s p~t Fed, R.~v.P.- 12~)(~, z c~ m~c ~e ~ ~vor of ~ pl~ ~y we~-pl~ed ~gatio~ ~, 826 ~ C~,l~); see ~~al Se~s, ~,, ~l F,~. 914, 917 ~ w~ ~e no~ov~ pa~ w~ p~v~, but I~. U~ $~ v. Y~ N~ ~ H~p., 727
~, 416 U,S, 2~2, ~6, L.~,2d ~ (1974)L However, "[A] ~Ie~. ~ ele~n~ of ~ c[~ on ~ ~., ~ F.2d 472, 476 ~d Ci~.1991). A

~e 9
25 U,$,C, ~ 19~2(a)-(d)), aff’d sub nora, Abboa v, M~ ~ve~ Ha~es A¢~s. L.P., ~I F,Rd 430 ~ C~.I~9), ~ ~r ce~. ~ed. (U.S. Feb. 14. ~) ~o. ~-1367). A ~CO ~ ~quires ~ ~ ~fc~ used ~ ~ f~m a ~ of ~er~ a:~vity m ~t in ~ eme~ri~, ~ ~n~l of ~ en~r~ ~ a ~ of
~ ~n~ m ~ ~ of ~e ~vtt~s. S~ 18 U.S
A pattern of rackemertng activky require~, inter st ]~ ~o pre~t¢ ~m of ~mer~ a~, See Ig U.S .C. ~ 1961(5). S~ also M~g~ ~v~s H~es T~ ~s~n, 25 F,S~.~ at 120, ~ ~ a~ ~ ~iol~t~ of fe~ ~w ~e ~ "xac~ ~vi~’ ~ 1~ U,S,C, ~ 1961(1). As
viola~a of S~oa 274 of ~ ~A (~e~
~0.

~ ~ ~i~." Y~ N~w ~vea H~p., 727 P.Supp. at ,786 (qaa~ ~eY v, ~ 355 U.S. ~1, 45~6, 78 S.Ct. 99, 2 L,~,~ ~r~ ~e ~e~cy of a 12~)(~, co~i~r~an is ~ted m f~¢~ sm~d an ~e

FNS. Seuion 1324(a) ma~ it unlawful w (1) or ~t m b~ an alien i~ ~e U~ S~ at ~ p~ ~ ~n ~ ~/~azcd ~n of e~w: or ~p~, ~ve, or at~mpl to ~n er mare

~f~, ~d ~ ~ers of which j~ic~ F.2d 40, ~ ~ Cir. I~1).

disre~ of ~ ~ t~ an ~n ~s
O) ~, hair, ar shield ~m ~, or

If. Section 1962 Gcneratly
The RICO statute recognizes a priva¢ civil cause of ar~kat for ,~ose ~vidu~ or or b~s a~vi~es of, a rec~r~g ~prise. 18 U.S,C. I~4( ), ~ce ~o M~g~ Evers Hou~ Te~

enid, or ~ai~ in ~ Unt~ ~ illegal; or (4) ~ge or i~:e an ~ ~ ~e m, ent~. r~ in ~ Uelted S~tes. k~w~ or ~ di~g ~ fact ~t such a~n ~ ~ ~ien
~mmissbn of any,of t~ u~s. S~ g U.S,C.

L.F., 2~ F,S~.~ 116. I~ ~.D.N.Y.199Z) (ci~

CopE, @ Wes~ 2000 No C]~im to O~’ig, U.$. OovL Works

0.9/08/00 09:01 FAX 2066230~94

HAGENS

sup copy
(Cite as: 2000 V~ 54b’1~, HI. P.ICO $~znding
A ~,~hol~ consl~.zaxion is ~he--be.r ~ pLdatiff
G~ ~ ~., 27 F.3d 763,767 ~ ~.~ 21, 23 (~d ~.lg~}, ~ ~

plaimiff demonstntte a direct relationship betwcea the IN asscr~ Evers House Tena~ Asse~i~tien v. Mcdgat Evcrs HoMes (E,D,N.Y.199g),
The $~rcm~ Court |it Holmes ~avc tkt©e remora
d~ect ~ i~ is, ~ ~re ~~t i~ ~ ~ ~ ~e ~ of a p~tiff’s d~
~n~~, facmn.~ Ho~, 5~3 U.S. ~ ~ (cim~on ~; see ~o ~ ~ve~ H~ses

~leg~ ~CO ~iolad~ m~ be ~e or p~tc ca~e, Hol~s v. S~ufi~cs I~es~r Prot~ Co~., ~0~ U,S. ~$, ~g. 112 S.~, 1311, 117 ~ ~32 (i~23: Lz~ze~ ~ 17 H~
P~e m s~ly ~lege ~at ~e defoe’s ~CO de~t of plea~g ~d is ~o=d f~r dis~ssal plea~ stage. See ~ric Na~uwide, 27 F.3d

o~; se ~ M~g~ ~s Ho~

~j~ p~y ~ b~g ~ action md ~at g~y

Ho~, ~ U.S. at 2~ 70 (¢ita~ c~); F.~pp,~ at 121.

A nerober of distri~ courts have ~piied tt~ "~ect

wMre ~e p~ b~es ~ cla~ on ~ ~e# ~e. of ond~ by a ~efend~t ~d ~ xvo~

~ m ~e pl~flff, For ~ple,

pn.

of a New York

B. The Holmes Dim*t Rehdoa ~eq~’emo~ for RICO Standing
.As inOk:med, one of the requirements unctet the U,$, Sul~’cme Com-t’s d~ifion ~ Holmes is ~t ~ RICO
~m~la~ of by ~ pl~tiff. H~
r~ be~ee~ ~ ~ju~ ~se~ ~d onduct ~cged2’ ~ ~e ~ E~ Co. ~~l~ Li~., 3~ P.3d Bg~, 399 ~d C~i~ Hol~s, 503 U,S. a~ ~S), rel~i~" ~q~e~ ~reclu~s ~ve~

of fml~ ~ ~~ s~t~
~ti~ of ~e ~o~ project. As a resMt, o~ts ~n~ed to ~ive ~t s~bs~y ps~ ~ ~ere not o~I~ by p~Ject. ~ ~t~m ou~, kowev~, ~ pla~ ~d ~ot Mve s~ m b~ s ~CO came of acfloa ~ ~e o~ Of

~e ~fo~es v~i~ Upon a ~ ~S~ by ~f~t’s a~’. Id. ~e Ho~ C~urt "~luded ~at ~ ~e civ~ RICO ~m. J~e ~ds ~at a

~e ~ ~e p~, ~t ~ HUD: (2)
wo~d ~ ~red m ~e w~er ~e ~pl~-of ~iti~ w~c

Cc~. ~ West 2000 No Claim to Orig. U,5. O~vt. Works

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Slip Copy ~Cite m: 2000 WL ~a~.m~t~ or w¢¢ rJze rosak of ocher ~act~ts (such as ~e defendm~t’s poor ~~ of ~e ~us~g ~); ~, O~ ~e ~ ~ not t~lvc ~ questio~ ~~e H~ c~ld ~ ~
Ho~ Associates. 25 F.Supp.2d a¢ 119. Simtl~ly, in Bxrr Laboratories, /~c. v. Quantum Pba~.a, Inc., 827 F.S~p. 11]

prop~ party to seek ~lie¢, See Id., 792 F.~p. er 1578.
C, T~ Imrm~ ~ che inu~ case, the plaL,~tiff has no~ alleged fa~ts ~ed ~ ~ d~ ~ICO v~la~o~, ~ ~ k ¯ e p~i~ ~ by ~e ~f~s. ~ ~ Hol~,

fd~ f~e s~c~ w~ ~e F~ ~ D~ A~adoU ("FDA"). ~ pl~eged ~t ~
wh~ it sub~ ~ ~ applka~ns ~ ~ ~A, ~lenfly-~rovcd ~s. ~e ~ict ~ p~ff’s los~ ~e ~ r~o~ be~ ~ did FDA, B~ ~bot~ri~, ~., 827 F.Supp. a~ 116,
cusps co~d ch~s¢ wheat ~ w~h~ p~c~ae, ~e ~gs ~ ~os¢ of ~er ~dtor. Id.

The complaint alleges rat d~e d~f~d,~ ~s o~ ~e o~ of muI~ic ~1~o~ of 8 U.S,C. ~ 13~a) ~ugh ~ o~ra~ of ~ ~leg~ ~t h~ sche~. ~e ~pl~
w~ers’ ~e~adon ~, ~ o~ ~ for ~e ~oy~s: ~¢h ~ble it ~ ~ l~er b~ ~ ~ pl~ff ~ o~ ome,mrs for o~ le~ ~ts: W~ res~ ~ itob~g a
~m~ p~v~ ~ pla~ ~om ob~ mo~ b~s.
A~z~g t~e alle~a:ions are r,t-~, r~e comJnissiou of
effaces ue ~cd a~ avo~ o~ ~~ laws ~d ~ of ~ ~i~ by ~ ~S. A~t~y, ~e ~ fi~ wo~d be

~e of ~ e~ged "illegal ~~

brou~ s ~ c~sc o~ acd~ ag~t ~ ~s of i~ hou~ c~p~x. L~ ~ M~

¯ e dd~ h~ vi~a~ ~CO by ~le f~s¢ appH~tio~ for H~
~ c~don. ~ ~ ~ were ~ u~ for ~ses o~ ~ ~e repair ~ ~iex ~. ~ a result, ~e ~l~

(3) ~ fl~o~ ~ ~ ~ for ~ ~d, (~) a ~r~ of ~ ~a~ for ~~ ~ o~=r ~o~er. h would

~ot ~e ~~n ~b~ts, w~ d~end~’ ~eg~ ~uc¢ ~
As ~urh, ~e ~=ict Co~ conclU~d ~D w~

select. ~do~y, ~s~ ~e fz~t f~r ~d

Copr. © West 2000 No Claim ~ Orlg. U,$, Go’~ Works

09/08/00 09:03 FAX 2066230594

P~e 12

"6 Finally, za recogrdzed in Holmta. Medlar Evexs Hours A~socieres.
~ ~le~ ~ ~A,

IV. Nen-Compl~.e wl~ ~ SmndLng Order in Civil RICO Cases
Tlw $mncli~ Order ~ Civil RICO cases U~~ S[~ Db~cz C~ for ~= D~

~]d ~ ~e ~ ao ~eco~d ~ ~e of a~on -~ ~ INA ~d ~
~ ~. S~ Ni~-~s v. ~e~r F~, 743

m~’~) w~ ~e~ (20) ~ o~ ~

acdo~); ~ v, ~o~e B~ ~ Co. Div, of (~ Cir.l~)~r ~) ~o1~ ~ vartou~

wi~ ~e ~I~ ~ m supple~ ~e ~d ~ ~ ~mp~. See e.~. Mc~u~ A~erm~ 9~ F.~ I~, 189 (~ Cir,~).

~d, ~ U.~. 1112 (1~ (s~); Ma~ v, ~ ~a~ ~~,
create s pflva~ ri~t of zcdoe ~ ~ a viobfion ~ r~ when ~o~on or flte~ly ~res
C@i~, 477 P.~p~, I~T,
Dow~ v. U~z~ ~, 476 7.~p. 10~,
~ 1329 C"~e di~t o~ of ~e U~ ~ ~t ~ jurisdlc~l~ of ~I ~uses, ei~ ~ er~l,
prov~io~ o~ ~ ~apter.") ~¢ ~¢~y provide ~or s ~rtvam ~ o~ a¢~¢~ nor d~s R Impli~y ¢r~e a
F.~pp. 73& 742.T4~ (~.D.N.Y.
FN8, The ~m "~is s~x:~pter" is ~ refexerr.e m ~,~ For ~e-~e reasvns, the Court concludes that rhc plaimiff L~.~ s~diug ~ ~ rl~ amior~
b~is,

The statemmn in d~ inset case is insuff’wiently ,Jab’led in several/nzpor~.~t areas. A few
plain~/ff fails to idenfi~ of th~ ~]leg~i w~ngc~er~, ofl~er than ~e ~fe~nt; R ~s to wro~r: it f~ils ~ ~ for~ ~ ~en~ of
r~s to ~ pro~o~ by smt~g: "as
~teg~ons of ~e ~a~z): ~ i~ ~ m ~ fo~ ~o~, ~so~do~, ~d o~ leg~ ¢ntides ~ ~=g~y eo~ ~e RICO en~e
~c, is a group of labor ~~s, se~, ~Ioy~t recruiters ~d ~or~ ~t ~tively asset Cvtin ~ loca~g

Copr. ~ West 2000 No Claim to Orig. U.S. Oov~. Work~

09/08/00 09:04 FAX ~0~6230~94

I’IAGEN$ BER~IAN

(Ci~ m: 3000 WL underlies the RICO c[aim.-~ so griev~s~ v|ola~ed t~re ~e w~ra~ disnt~sal of the cen~lai~ ~ tha~ basi~ a~ well,
i~ G~NT~D. ~e Ce~ ~eg ~t ~en
~ v, S~fi S.A.. 8~ P,~ 195, IgS l~ve ~ ~ ~ ~ tO ~ pr~e, it ~ ~t Y~ v. H¢~, 91 F.3d ~70, ~7~ ~ Cir.199@ (d~ng ~ V, Dav~, 371 U.S. [78, 1~, ~3 S.C~. ~7, 9 ~,~,2~ 222 (1962); ~ ~o Ha~, F.3d a~ ~ (i~ P~ v. ~ Blue Cross ~ield, 1~2 F.3d 67, 7~ (2d C~.I~8), eel. de~ed, 525 U.S. 1103, 119 S.~, 86g, 142 L.~.~

(1999), Ia a .l~ICO case, upon grtming a raoti~ to dis~s leave m ~nd ~y
action, See M~ v., S~cu, 11 P.3d 1127, 1133 (2d C~,19~), cert. ~, ~13 U,S. 915. 115 S.~. 2~, 130 L.~.~ 206
~l~bn ~at ~ pl~ eoe~ ~t ~ve ~d~ ~ br~ ~ ~fion. A ~iew of ~e
~n W~, ff plod ~ ~ ~n~ ~l~, w~d c~e ~ deficit. ¯ 8 Ac~rdingly, ~e oml~laia¢ is dism/~sed sad &e Clerk is ordered to close this case.
EIcD OF DOCUMENT

Capt, ~ West 2000 No Clam to Orig. U.$, Govt, Works

 </s> Ryan M. Edgley Halverson & Applegate, P.S. P.O. Box 22730 Yakima, WA 98907-2715 4 Telephone: (509) 575 6611
5 6 Attorneys for Defendants Zirkle and Matson
7

Honorable Fred VanSickle

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA
13 MENDIOLA, individually and on 14 behalf of all other similarly situated,

15

Plaintiffs,

NO. CY-00-3024-FVS

16

)

17

18 ZIRKLE FRUIT CO., a Washington )

19 corporation, MATSON FRUIT

)

2O COMPANY, a Washington corporation)

21 and SELECTIVE EMPLOYMENT

)

AGENCY, INC., a Washington 22 corporation,

) )

23

)

24

Defendants. )

25

)

RESPONSE TO PLAINTIFFS’ UNAUTHORIZED SUPPLEMENTAL MEMORANDUM

26

Whether consideration should be given to Plaintiffs’ Supplemental

27

Memorandum served by facsimile on the afternoon of Friday, September 8, 2000 is a 28

29 decision within the court’s sound discretion. If the court does consider plaintiffs’

30 Supplemental Memorandum, defendants Zirkle Fruit Co. and Matson Fruit Co. ask the

31 court to also consider this concise response seeking to correct the plaintiffs’ continued
32 efforts to erroneously re-state defendants’ arguments, and in the interest of obtaining a 33 34 well. reasoned decision.

RESPONSE TO UNAUTHORIZED SUPPLEMENTAL MEMORANDUM

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NON FOUK, r~ SrmK~rr -- P. O. Box 22730 YAKIMA, WASHINGTON 9~907-2715 PHON~ 575-6611

The lack of a direct causal connection between the plaintiffs’ allegedly

"depressed wages" and Zirkle or Matson’s alleged hiring practices, puts this case in a

clear perspective. This action is an attempt by the plaintiffs and their attorneys to 4 5 create civil liabiliW by supplanting the federal Government’s policies and enforcement
6 concerning unauthorized aliens. The composition of the labor pool in Central or

7 Eastern Washington is not the result of actions by defendants Zirlde or Matson.

8 Rather, this labor pool is a consequence of inadequate or ineffective Government

9 policies concerning immigration control, the inability of the Government to stop the 10
procurement of fraudulent documentation by unauthorized aliens, the lack of job 11 12 opportunities in neighboring countries, and a myriad of other social and economic
13 factors that influence the flow of unauthorized aliens from outside our borders.

14

These are the causes for the presence of unauthorized aliens in the relevant

15 labor market, which allegedly "depressed" the wages that could be demanded by the 16
plaintiffs. Zirkle and Matson are not responsible for these causes. And regardless of 17 18 whether the plaintiffs are attempting to eradicate alleged "racketeering~’ or seeking to 19 capitalize on a confusing situation created by Government policy, they do not have

20 standing to pursue RICO claims against the defendants.

21

1. The Plaintiffs Are Not Claiming A Direct Injury.

22

Although defendants did not rely on or cite the unpublished decision in

23

24 Commercial Cleaning Services v. Colin Service Sys., Inc., 2000 WL 545126 (D. Conn.

25 March 21, 2000), the plaintiffs attempt to distinguish that decision demonstrates they

26 are not alleging a direct injury necessary for RICO standing. In Commercial Cleaning

27 Services, the court reasoned that any causal connection between the hiring of 28
unauthorized workers and the plaintiffs’ alleged lost revenue also depended on (1) the 29 3O actions or inaction of the INS, (2) the comparative quality of services provided by

31 plaintiff and the defendant, and (3) fluctuations in the demand for such services.

32 Hence, there was no direct causal connection between the alleged predicate act and the

33 alleged injury, and, therefore, the plaintiffs lacked standing. Commercial Cleaning 34

RESPONSE TO UNAUTHORIZED

SUPPLEMENTAL MEMORANDUM

2

LAW Ob’FICES OF
HALVERSON & APPLEGATE, P.S.
311 Nora. FoumH STP,~ -- P. O. Box 22730 YAKIMA, WASHINGTON 98907-2715 PHON~ 575-6611

1 Services, 2000 WL 545126 at *5.

2

The Commercial Cleaning Services court further supported its decision by

3

4 reasoning that if the defendant was violating the Immigration and Nationality Act

5 (INA), "it is the INS which bears primary responsibility to deter those activities." The

6 court went on to cite a long list of decisions holding there is no private cause of action

7 for enforcement of the INA. Id. at *6

8

Similarly, in this case, the causal connection between Zirkle’s and Matson’s

9
alleged hiring of unauthorized workers and the plaintiffs’ allegedly "depressed" wages
10

|1 would depend on (1) the action (such as in Operation Snowbird) or inaction of the INS,

12 (2) the comparative work experience and ability of the plaintiffs and other workers

13 available in the labor market, (3) fluctuations in the demand for labor, (4) the
14 defendants’ ability or inability to profitably pay more for labor, and (5) a myriad of 15
other reasons that influence a business’s decision to pay higher wages to particular 16 17 workers. Hence, the plaintiffs in this case are not alleging a direct injury and,
18 therefore, lack standing to pursue their claims.

19

The lack of a direct causal connection is further demonstrated by the plaintiffs

20 attempt to sue Matson Fruit Co., for whom they do not allege to have worked. If 21 Matson Fruit Co.’s employment of unauthorized workers depressed wages earned by
22
23 the plaintiffs at Zirkle, the same effect must also have been primarily caused by
24 employment of unauthorized workers in other fruit warehouses, restaurants,

25 construction companies, manufacturing companies, public and private schools, and a

26 long list of other businesses that employ similarly skilled workers. The plaintiffs’ 27 Complaint, at ¶ 22, explicitly acknowledges they are trying to recover for wages that
28
29 were allegedly "depressed" below what the wages "would be in a labor market
3O comprised solely of legally authorized workers." The harm plaintiffs allege was caused

31 by the presence of unauthorized workers in the entire relevant labor market, not just

32 at Zirkle and Matson.

33

In other words, the plaintiffs’ own Complaint concedes the wages paid by Zirlde

34

RESPONSE TO UNAUTHORIZED

SUPPLEMENTAL MEMORANDUM

3

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NORTH Fot.qcr’H STREET -- E O, Box ~
YAKIMA, WASHINGTON 98907-2715 I~o~,~ 575-6611

and Matson are largely dependent on the wage rates paid by other businesses

competing for the labor of similarly skilled workers. The availability of other workers

and the wages paid by other businesses are not caused by Zirkle or Matson’s alleged 4 5 hiring practices, and there is no direct causal connection between the plaintiffs’ alleged

6 injury and Zirkle or Matson’s alleged hiring practices.

7

Absent such direct causal connection, plaintiffs do not have RICO standing

8 under Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992); and 9 Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303 (9th Cir. 1992). And no proposed 10 1t expert testimony can cure this flaw in plaintiffs’ case.

12

2. Plaintiffs Do Not Allege An Injury To Business Or Property, Nor

t3

"Concrete Financial Loss."

14

15

The plaintiffs in this case have not alleged ’~lost wages," which is a term of art in

16 tort claims, but have instead alleged "depressed" wages for which they willingly agreed

17 to work. This fact clearly distinguishes this case from the authority cited by plaintiffs

18 in their proposed Supplemental Memorandum at pp. 3-4.
~9 One court has addressed a similar issue by pointing out the error of attempting
20 21 to equate a property interest with a property injury. Dumas v. Major League Baseball

22 Properties, Inc., 104 F. Supp.2d 1220 (S. D. Cal. 2000). In Dumas, the court held that

23 the plaintiffs could not allege an injury to their property interest caused by an alleged

24 gambling scheme constituting "racketeering activity," where the plaintiffs received
25 exactly what they had bargained for. Here, the plaintiffs received the wage for which
26 27 they agreed to work, and cannot claim an injury to any property interest.

28

The Court of Appeals for the District of Columbia has stated in dicta that an

29 employer’s failure to pay wage rates required by the Service Contract Act is not an

3O injury to property within the meaning of the RICO civil enforcement statute. 31
Danielson v. Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220, 1229 (C.A.D. 32 33 C. 1991). In Danielson, the court expressed serious doubt that plaintiffs were injured

34 in their ’%usiness or property," within the meaning of the RICO provision for a private

RESPONSE TO UNAUTHORIZED

SUPPLEMENTAL MEMORANDUM -

4

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S. 3~ No~. ~o~ s~ - P. o. ~o~ z~
YAKIMA, WASHINGTON 98907-2715
PHON~ 575-6611

cause of action, by alleged violations of the Service Contract Act because: "While the

employees may have been entitled to higher paying job classifications than they

received under the defendants’ employment schemes, each employee in fact received
4
5 precisely the compensation bargained for in return for the agreed work." Id.

6

The plaintiffs’ proposed Supplemental Memorandum misconstrues the argument

7 presented to the court by Zirkle and Matson. While the defendants do not challenge

8 the principle that wages constitute a property interest, Zirlde and Matson do contend
9
10 the plaintiffs’ admission they received the wages for which they agreed to work
11 precludes any claim that they have been injured within the meaning of RICO.

12

CONCLUSION.

13

If the court considers the plaintiffs’ proposed Supplemental Memorandum, the

14 defendants’ Motion To Dismiss should nevertheless be granted for the reasons stated
15
above, and the plaintiffs’ failure to adequately plead any RICO predicate act.
16

17

Respectfully submitted this 12thfi_~ of September, 2000.

18

19

20

l~yan M~. Edgley (WSBA’#’I61~k .... \

21

Halverson & Applegate, P.S. ~

22

Attorneys for Defendants Zirkle and Ma~son

23

24

25

26

27

28

29

30

3t

32

33

34

RESPONSE TO UNAUTHORIZED

SUPPLEMENTAL MEMORANDUM

5

LAW OFFICES OF
HALVERSON & APPLEGATE,
311 Nonr~ FOURTH STRE~ -- P. O. Box 22730 YAKIMA, WASHINGTON 9~907-2715 PHON~ 575-6611

Ryan M. Edgley Halverson & Applegate, P.S.
P.O. Box 22730 Yakima, WA 98907-2715 4 Telephone: (509) 575 6611
5
6 Attorneys for Respondents

I ,._!:,...~ ~’~, .~ THE U.S. [..i ;: ! :C~ F_.ASTE£;’,~ L’:.. i: I;C’, 0~:
SEP
J.~-~L’::2."3 r!. Lt.:~2E’i’.’, CL.ER~(
.........~..-......;.l.h.2...~..~.,..’{...,.L..!.;.,..,..:.~... DEPU’i’Y

7

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on
14 behalf of all other similarly situated,

15

Plaintiffs,

NO. CY-00-3024-z~I"

16

17 Vo

18 ZIRKLE FRUIT CO., a Washington 19 corporation, MATSON FRUIT 2O COMPANY, a Washington corporation)

21 and SELECTIVE EMPLOYMENT )

22 AGENCY, INC., a Washington

)

corporation,

)

23

)

24

Defendants. )

25

AFFIDAVIT OF MAILING

26
STATE OF WASHINGTON )

27

¯ SSo

28 COUNTY OF YAKIMA

)

29

3O

The undersigned, being first duly sworn on oath, deposes and says: That affiant

31 is a citizen of the United States of America and of the State of Washington, living and
32
33 residing in Yakima County in said state, of legal age, not a party to the above-entitled

34 action, and competent to be a witness herein. On the 12th day of September, 2000,

AFFIDAVIT OF MAILING - 1

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 NomH Foum’n ST’a~T -- P, O. BOx 22730 YAKIMA, WASHINGTON 98907-27!5 PHo~,m 575-6611

1 affiant deposited in the United States mail a properly stamped and adctressed envelope

2 3 directed to:

4 Steve W. Berman 5 Hagens Berman LLP
6 1301 Fifth Avenue, Suite 2900 7 Seattle, WA 98101

Howard W. Foster Johnson & Bell, ltd. 222 N. LaSalle St., Suite 2200 Chicago, IL 60601

8 Brendan V. Monahan 9 Velikanje Moore & Shore
10 P.O. Box 22550 Yakima, WA 98907
11

Walter G. Meyer Meyer Fluegge & Tenney, P.S.
P.O. Box 22680 Yakima, WA 98907

12 Said envelope containing a copy of:

13

14

Response to Plaintiffs’ Unauthorized Su~ental Memorandum.

15

16

17

KAREN A. HILL

18

19 SUBSCRIBED AND SWO~RN TO this 12th ~eP~~

2O

2~

oo~ ~’_~,S~~~8~-~C ~

22

23

~ ~~~’~~~2~~. 1~

NOT~Y PUBLIC in and for th~ State of
Washin~on, resi~ng at My Commission Exp~es:~
, /

24

25

26

27

~-8

29

30

31

32

33

34

AFFIDAVIT OF MAILING - 2

LAW OFFICES OF
HALVERSON & APPLEGATE, P.S.
311 No~T~ FOt~’rH STP.~’r -- P. O. Bc0~ 22730 YAKIMA, WASHINGTON 98907-2715
P~o~ 57.5-6611

 </s> RLED IN THE U,S. DISTINCT COURT
DISTRICT OF WASHINGTON

1 Ryan M. Edgley 402 E. Yakima Avenue, Suite 1080
2 Yakima, WA 98901 Telephone (509) 248-1740
3 Attorneys for Defendants
4
5 ORIGINAL

OCT

....... ’, ,’,F~ :~: N, CLERK

.......

:"A~:!ki.,~,

..... DEPUTY -:’,,;,SHINGTON

Honorable Fred VanSickle

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF WASHINGTON

7
OLIVIA MENDOZA and JUANA 8 MENDIOLA, individually and on
behalf of all other similarly situated, 9
Plaintiffs, 10
VS.
11
ZIRKLE FRUIT CO., a Washington 12 corporation, MATSON FRUIT
COMPANY, a Washington corporation 13 and SELECTIVE EMPLOYMENT
AGENCY, INC., a Washington 14 corporation,

NO. CY-00-3024-FVS
RESPONSE TO MOTION FOR RECONSIDERATION MATSON & ZIRKLE DEFENDANTS

15

Defendants.

16

17

Defendants Matson Fruit Co. (Matson) and Zirkle Fruit Co. (Zirkle) submit this response

18 opposing the plaintiffs’ Motion For Reconsideration. The plaintiffs have not articulated any

19 basis for their motion, under Fed. R. Civ. P. 59. The court’s analysis &the standing issue and

20 dismissal, as set forth in the order entered September 27, 2000, is substantively correct; and the

21 plaintiffs’ Motion For Reconsideration relies on argument driven by mere semantics. Finally,

22 contrary to the plaintiffs’ arguments, Fed. R. Civ. P. 12(b)(6) does not require the court to simply

23 accept at face value conclusory allegations that the plaintiffs have standing.

RESPONSE TO MOTION

FOR RECONSIDERATION

-1

RYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suite 1080
Yakin~ WA 98901 Phone: (509) 248-1740 Fax: (509) 248-I 573

1 I. PLAINTIFFS DO NOT ARTICULATE ANY BASIS FOR RECONSIDERATION.

2

Under Federal Rule of Civil Procedure 59(e), a motion to alter or amend judgment (i.e.

3 for reconsideration) should be denied unless the court is presented with new evidence, is shown

4 to have committed clear error, or there is an intervening change in controlling law. School 5 DistrictNo. 1£ A4ultnomah County v. AcanclS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such a

6 motion is not a substitute for appeal, nor is it intended to be a second (or in this case third)

7 chance for parties unhappy with the court’s ruling to re-argue the issues. Twentieth Century-Fox 8 Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9ta Cir. 1981). Ira party relies upon a new

9 argument in a motion under Fed. R. Civ. P. 59(e), the party must explain why he or she failed to

10 raise the argument prior to the entry of judgment. See: Minnesota Mutual Life Ins. V. Ensly, 174

11 F.3d 977, 987 (9t~ Cir. 1999).

12

The plaintiffs’ arguments that they sufficiently alleged "concrete injury" and proximate

13 cause of their alleged damages, so as to confer standing to sue under RICO, were previously

14 addressed to the court in plaintiffs’ 35 page responsive memorandum filed on or about June 14,

15 2000, in oral argument on August 31, 2000, and again in their eight page unauthorized

16 Supplemental Memorandum filed on or about September 8, 2000. The plaintiffs’ Motion For

17 Reconsideration does not raise any new arguments, but merely takes issue with the court’s

18 rejection of the plaintiffs’ conclusory assertions. Further, without addressing the substantive

19 basis for the court’s ruling, the plaintiffs have attempted through semantic gymnastics to

20 convince the court that its decision is internally inconsistent.

21

In addition to being legally erroneous, the plaintiffs’ arguments are insufficient

22 justification for filing a Motion for Reconsideration under Fed. R. Civ. P. 59. The plaintiffs hav 23 already availed themselves an opportunity to re-argue their position by submission &the

RESPONSE TO MOTION

FOR RECONSIDERATION

-2

RYAN M. EDGLEY, PLLC 402 East Yakima Ave,, Suite 10g0
Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 248-1573

1 unauthorized Supplemental Memorandum, to which the defendants were compelled to undertake

2 the expense of a response. Thus, the plaintiffs’ Motion For Reconsideration is not warranted

3 under the Federal Rules of Civil Procedure, and merely causes needless increase in the cost of

4 this litigation and the unnecessary expenditure of additional judicial resources in violation of

5 Fed. R. Civ. P. 11 (b)(1). 6 H. THE COURT’S DISMISSAL OF THE CASE iS SUBSTANTIVELY CORRECT.

7

The court’s well-reasoned decision relied on the development by the Supreme Court and

8 the Ninth Circuit Court of Appeals of a "remoteness" test for RICO standing, which blends

9 together the concepts of proximate cause and the requirement of a "concrete injury." (Order

10 Granting Motion To Dismiss, p. 16, lines 6-9). Nevertheless, both proximate cause and a

11 "concrete injury" are still required to confer RICO standing. See: Imagineering v. Kiewit Pacific 12 Co., 976 F.2d 1303, 1310-11 (9t~ Cir. 1992). The "remoteness" test, however, can be used to 13 analyze both requirements, particularly the requirement of a "concrete injury." See: Oregon 14 Laborers-Employers Health & Welfare Trust Fund v. Philip Morris, Inc., 185 F.3d 957, 963 (9t~

15 Cir. 1999).

16

Here, the court determined the plaintiffs’ allegations cannot establish a "concrete injury,"

17 as is required for RICO standing. (Order Granting Motion To Dismiss, pp. 19-23). The court

18 specifically noted "[a] showing of ’injury’ requires proof of a concrete loss. [citation omitted]

19 ’Speculative’ injuries are insufficient to confer RICO standing." (Id. at p. 19, lines 15-

20 17)(emphasis added). "Here, as in lraagineering and Shepard, the plaintiffs’ main flaw is their

21 inability to concretely establish the degree to which their wages have been affected by the

22 defendants’ alleged violations." (Id. at p. 21, lines 20-23)(emphasis added).

23

RESPONSE TO MOTION

FOR RECONSIDERATION

-3

RYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suite 1080
Yakima, WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

The court’s conclusion that the plaintiffs’ allegations fail to adequately allege a "concre

2 injury" are not substantively challenged by the plaintiffs’ Motion For Reconsideration. Nor do

3 plaintiffs cite a single case that could be deemed to overrule the requirement of a "concrete

4 injury." In addition, under the correct analysis of controlling law, the remoteness and

5 speculative nature of plaintiffs’ alleged damages precludes a determination that the defendants’

6 alleged acts were a proximate cause of said damages.

7

A. No "Concrete Injury" To Business Or Property.

8

The plaintiffs’ Motion For Reconsideration does not specifically address the court’s

9 conclusion that plaintiffs have failed to allege a "concrete" financial injury. 1 Rather, as the

10 plaintiffs have previously done with defendants’ arguments, they attempt to re-characterize the

11 court’s conclusion and then suggest it is wrong. Thus, the plaintiffs do not address the well12 established requirement of"concrete injury," and instead raise a vague argument that the court is

13 "mistaken in its suggestion that stricter rules apply to cases seeking treble damages." (Motion

14 For Reconsideration, p. 13, lines 6-7).

15

More important, the plaintiffs’ suggestion that no citation to 9~h Circuit authority suppo

16 the rejection of plaintiffs’ speculative damages as a basis for standing, in this case as well as the

17 similar decision in Shepardv. American HondaMotor Corp., 822 F. Supp. 625 (ND. Cal. 1993)

18 (Motion For Reconsideration, footnote no. 11), is a grotesquely erroneous statement.

19

In Shepard, the court was specifically dealing with the requirement that RICO standing

20 requires allegations sufficient to show a "concrete" financial injury, and expressly analyzed, 21 analogized and relied upon the 9th Circuit precedent established by the Imagineering decision.

22 1 Nor do the plaintiffs address the court’s recognition that the Imagineering decision can be

23 construed to "require proof that a plaintiff actually paid money as a result of the racketeering activity in order to have standing to bring a RICO claim." (Order Granting Motion To Dismiss, p. 20, footnote no. 7). This requirement also mandates dismissal of the plaintiffs’ claims,

RESPONSE TO MOTION

FOR RECONSIDERATION

- 4

IRYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suite 1080 W~im~, WA98901 Phone: (509) 248-1740
Fax: (509) 248-1573

1 Shepard, supra at 822 F. Supp. 628-630. For the plaintiffs to suggest that the court’s

2 requirement in Shepard that there be allegations establishing "concrete" injury, and that the 3 denial of standing based on speculative injuries was done without citation to 9th Circuit authority

4 is absurd. The court in Shepard made several references and/or comparisons to the Imagineering

5 decision.

6

Likewise, in this case, the court correctly applied the same 9t~ Circuit authority

7 (lmagineering, supra) in concluding the plaintiffs lacked standing because their alleged damages

8 are too speculative to satisfy the requirement of "concrete" injury. The court stated:

9

"A wide range of factors determines the wage for orchard laborers in the Yakima Valley.

Plaintiffs have argued that they will be able to show, through expert testimony and

10

statistical and demographic modeling, what the relevant labor market would look like

absent the hiring of undocumented workers. However, such evidence would not be

11

sufficient to remove plaintiffs’ damage claim from the realm of sheer speculation.

(Order Granting Motion To Dismiss, p. 22, lines 1-8). 12

Among the factors noted by the court, upon which any such alleged damages would depend, is

13

whether the plaintiffs individually or as a class would have been hired at a higher rate. In

14

Imagineering, the Court of Appeals relied on the prime contractors’ legal right to use businesses

15

other than plaintiffs to hold plaintiffs’ alleged damages were too speculative. Similarly, the leg

I6

right ofMatson, Zirkle and all other employers to set different wage rates for individual

17

employees demonstrates the speculative nature of the plaintiffs’ allegation that they,

18

individually, would each have received higher wages in a market comprised exclusively of

19

authorized workers.

20

In addition to the reasons that the court relied upon to hold the plaintiffs’ allegations in
21

this case fail to establish a "concrete injury," the court should also conclude that plaintiffs

22

allegations, as a matter of law, do not allege an injury to "business or property" within the 23

meaning of RICO. Although, the court has already noted the Imagineering decision, supra, can

RESPONSE TO MOTION

FOR RECONSIDERATION

- 5

RYAN M. EDGLEY, PLLC
402 EasYt Ya~kimwa AAveg.,sSgui0te~1080
Phone: (509) 24g-1740
Fax: (509) 248-1573

1 be read to require an allegation that plaintiff actually paid money as a resuk of the racketeering

2 activity. (Order Granting Motion To Dismiss, p. 20, footnote no. 7), this court may still need to

3 address whether the facts in this case demonstrate an "injury" within the meaning of RICO. In

4 Danielson v. Burnside-OttAviation Training Center, Inc., 941 F.2d 1220, 1229 (D.C. Cir. 1991),

5 the Court of Appeals expressed serious doubt that plaintiffs were injured in their "business or

6 property," when they alleged payment of lower wages as a result of alleged RICO violations. In

7 dismissing the case for failure to state a claim, the court stated:

8

"While the employees may have been entitled to higher paying job classifications than

they received under the defendants’ employment schemes, each employee in fact

9

received precisely the compensation bargained for in return for the agreed work." ld.

10 In this case, the plaintiffs received the precise compensation for which they agreed to work at

11 Zirkle. Although wages are a business or property interest, the plaintiffs receipt of a wage rate

12 for which they willingly agreed to work is not an injury. Cf. Dumas v. Major League Baseball

13 Properties, lnc., 104 F.Supp.2d 1220 (S.D. Cal. 2000).

I4

None of the cases cited by the plaintiffs for the proposition that "lost wages" may be

15 recovered in civil RICO actions (Motion For Reconsideration, p. 3, lines 6-14) considered a case

16 of"depressed" wages for which the plaintiff had willingly agreed to work. In the portion of the

17 Iraagineering decision discussed supra, the Court of Appeals was obviously concerned that the

18 term "injury" required (at least) an alleged violation of some legal or contractual business or

19 property right. In this case, the plaintiffs had no contractual right to higher wages, and their onl

20 legal right was to receive minimum wage, which they do not allege was violated. Thus, no

21 "injury" within the meaning of RICO has been alleged.

22

23

RESPONSE TO MOTION

FOR RECONSIDERATION

-6

RYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suite 1080
Yakirrm, WA98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1

B. No Proximate Cause.

2

Although the court did not conclude the plaintiffs’ allegations were sufficient to establi

3 proximate cause, the court did conclude that plaintiffs had sufficiently alleged they were "direc 4 victims" of the alleged hiring scheme (Order Granting Motion To Dismiss, p. 18, lines 17-19).2

5 However, a "direct relationship" is "not the ’sole requirement’ of RICO" proximate cau

6 Oregon Laborers, supra at 185 F.3d 963 (emphasis added). See also, Holmes v. Securities

7 Investor Protection Corp., 503 U.S. 258, 269, 112 S. Ct. 1311 (1992)(Holding that, as with the

8 Clayton Act, "directness of relationship is not the sole requirement of’ proximate causation.)

9

Moreover, the court has recognized "’the [direct injury] rule has more to do with

10 problems of proof than foreseeability.’" (Order Granting Motion To Dismiss, p.21, lines 23-26;

11 quoting from imagineering, supra at 976 F.2d 1312). Accordingly, the plaintiffs allegation that

12 the purpose of the alleged hiring scheme was to depress wages does not establish a "direct

13 injury," as that concept is used in this context, if the degree to which the alleged damages were

14 caused by defendants’ alleged conduct cannot be established. In this case, the court properly

15 recognized an inability by plaintiffs to establish a "direct injury," as that term is used in this

16 context. (Order Granting Motion To Dismiss, p. 21, lines 20-26).

17

The failure of plaintiffs’ allegations to establish proximate cause is demonstrated by the

18 error in their bald assertion that if Matson and Zirkle hired only legally documented workers th

19 would have to pay a higher wage to the plaintiffs. (Motion For Reconsideration, p. 12, lines 1-

20 z Although a "direct relationship" is one element of the proximate cause inquiry, the plaintiffs

21 have exaggerated the Supreme Court’s use of this term to argue that a "direct relationship is

synonymous with proximate cause," and the court’s conclusion that plaintiffs are alleged "dire

22 victims" in this case therefore establishes proximate causation. (Motion For Reconsideration, p.

8). This argument is merely semantic gymnastics. Substantively, if the remoteness of plaintif

23 alleged damages precludes proximate cause, dismissal is appropriate. If"direct relationship" is

synonymous with proximate cause, which it clearly isn’t, the substantive lack of proximate cau

might warrant the court’s amendment of the decision to state plaintiffs ~re not "direct victims.

RESPONSE TO MOTION

FOR RECONSIDERATION

- 7

RYAN M. EDGLEY, I~LLC
402 East Yakima Ave., Suite 10g0
Yakima, WA 99901
Phone: (509) 24g-1740
Fax: (509) 248-1573

1 3). As explained below, the court is not required to accept this conclusory allegation at face

2 value, and may analyze whether the alleged actions of defendants could indeed be found a

3 proximate cause of plaintiffs’ allegedly depressed wages.

4

The error of plaintiffs’ conclusory assertion is demonstrated by plaintiffs’ admission th

5 were willing to work for the wage rate paid to them. The court recognized Matson and Zirkle are

6 not required to pay the same rate of wages to all workers within a particular class, and whether

7 higher wages might have been paid to plaintiffs would depend upon the qualifications of each

8 worker. Thus, whether the individual plaintiffs would have been paid higher wages depends

9 upon numerous potential factors, and is too speculative and remote to have been proximately

10 caused by Matson’s and Zirkle’s alleged actions. This is similar, if not identical, to the Court o

11 Appeals’ recognition that the plaintiffs were not guaranteed work on identified projects in

12 Imagineering, supra. In fact, as in Imagineering, there is no guarantee that plaintiffs would ha

13 been employed at all, if Matson and Zirkle were compelled to pay a higher wage.

14

But most important is the error in plaintiffs’ unsupported assumption that the actions of

15 Matson and Zirkle were a proximate cause of the existence of unauthorized aliens in the relevan

16 labor market, First, the plaintiffs proximate cause argument fails to focus on the alleged

17 predicate act. The alleged injury must be proximately caused by the RICO predicate act, and as

18 has been repeatedly pointed out in this case, the mere hiring of an unauthorized alien is not a

19 RICO predicate act.

2O

Second, the plaintiffs do not allege, and cannot allege, that fewer workers would have

21 been available in the relevant labor market ifMatson and Zirkle had somehow found a way to

22 identify all unauthorized aliens using forged documents. Another primary factor in determinin

23 the wages of the plaintiffs’ class of worker in the relevant labor market, is the general availabi

RESPONSE TO MOTION

FOR RECONSIDERATION

-8

RYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suil;e 1080
Yakima, WA 98901 Phone: (509) 248-1740
Fax: (509) 248-1573

1 of authorized and unauthorized laborers in the relevant geographic area. The plaintiffs do not

2 suggest how the alleged predicate acts of Matson or Zirkle affected the number of such laborers

3 in the area, nor to what degree.

4

Finally, a substantial portion of the Motion For Reconsideration is dedicated to arguing

5 the speculative nature of plaintiffs’ alleged damages does not warrant dismissal, if the

6 defendants’ alleged conduct was a factor in the alleged depression of plaintiffs’ wages. (See:

7 Motion For Reconsideration, pp. 9-14). They argue that if defendants have committed some

8 wrong, they should not "benefit" from difficulties of proof and the speculative nature of

9 damages. However, every authority plaintiffs cite for this argument predates the Supreme

10 Court’s 1992 decision in Holmes, supra, which specifically addresses the issue of proximate

11 cause under RICO. Further, this argument by plaintiffs is in direct contravention of the primary

12 rule of law forming the basis for the decision in Holmes:

13

"Here we use ’proximate cause’ to label generically the judicial tools used to limit a

person’s responsibility for the consequences of that person’s own acts. At bottom, the

14

notion of proximate cause reflects ’ideas of what justice demands, or of what is

administratively possible and convenient.’" Holmes, supra at 503 U.S. 268.

15

Defendants are not required to defend against allegations their conduct caused some harm, when

16

that alleged harm is too remote or speculative. 17

In this case, the depression &wages alleged by plaintiffs depends primarily on "the wag 18

rates paid by other orchardists and similar employers, the general availability of laborers, 19

documented and undocumented, in the Yakima Valley, the profitability of the defendants’ 20

businesses, the qualifications of each plaintiff, whether the plaintiffs individually or as a class 21

would have been hired at a higher rate, and other factors." (Order Granting Motion To Dismiss, 22

p. 22, lines 12-19). The plaintiffs do not deny that these are the primary factors influencing the 23

RESPONSE TO MOTION

FOR RECONSIDERATION

-9

RYAN M. EDGLEY, PLLC 402 East Yakima Ave., Suite 1080
Yakim~ WA 98901 Phone: (509) 248-1740 Fax: (509) 248-1573

1 wage rate paid to plaintiffs. Rather, they simply make the conclusory allegation that defendants

2 conduct may have been a substantial factor in the depression of the wage rate.

3

They, however, cannot even allege that all workers would have received a higher wage,

4 without regard for their qualifications.3 Which again demonstrates that the occurrence of an

5 injury is uncertain and speculative.

6

C. The Court Is Not Required To Adopt Conclusory Allegations Of Standing.

7

The plaintiffs erroneously place heavy reliance on an argument that "It]he Court is

8 required to assume the truth of the complaint’s allegations of standing." (Motion For

9 Reconsideration, p. 3, lines 17-19). The plaintiffs’ error is two-fold. First, the court has

10 accepted as true the plaintiffs’ properly pied factual allegations. And, second, the court is not

11 required to accept plaintiffs’ conclusory assertion that these alleged facts adequately confer

12 standing under R/CO.

13

The plaintiffs’ factual allegation is that their wages were lower than they would have

14 been in a labor market comprised only of authorized workers. (Complaint ¶22, proposed First

15 Amended Complaint ¶43). At this point in the proceedings, the court has accepted this allegation

16 as true. However, having accepted this allegation as true, the court may conclude that it

17 precludes standing because of the remoteness of the alleged damages.

18

In lmagineering, supra at 976 F.2d 1310, the Ninth Circuit Court of Appeals specifically

t9 stated:

20

"Although plaintiffs characterize their injury as one compensable under RICO, that

characterization must be challenged on several bases .... Although plaintiffs assert that if

21

22 3 The plaintiffs quote a portion of the court’s basis for concluding their alleged damages are too

remote and speculative on p. 4 of the Motion For Reconsideration. However, the plaintiffs omit

23 from that quotation the court’s conclusion that it is speculative whether the plaintiffs individua

or as a class would have been hired at a higher wage rate. The plaintiffs do not dispute that

conclusion, nor challenge it in any other fashion.

RESPONSE TO MOTION

FOR RECONSIDERATION

- 10

RYAN M. EDGLEY, PLLC
402 East Yakima Ave., Suite 1080 Yakima, WA 98901
~,ho,~e: (509) 248-1740
Fax: (509) 248-1573

1

specified contracts had not gone to Kiewit those contracts would have been awarded to

plaintiffs’ prime contractors, that cannot be established." (emphasis supplied).

2

Although well-pied factual allegations must be accepted as true, the court is not required to
3 accept conclusory assertions or legal arguments regarding standing.4

4 The allegations of the plaintiffs in this case, that their wages were lower than they would
5 be in a labor market comprised exclusively of authorized workers, admit the effect on their

6

wages of the relevant labor market. It admits the affect of the availability of other laborers, the 7

qualifications of the plaintiffs relative to other laborers, the right of employers to pay different 8

wage rates to individual employees, and the wage rate paid by competitors for similarly skilled 9

labor in other industries. The plaintiffs were able to accept work in other industries, but did not 10

do so. The effect on the plaintiffs’ wages caused by the alleged conduct of Matson and Zirkle is 11

too dependent on the myriad of other factors acknowledged by the court and is, therefore, too 12

remote and speculative to establish proximate cause. These admissions by the plaintiff are the 13

proper basis for the court’s conclusion that the alleged damages are too remote and speculative to 14

confer standing. 15

Amendment of the complaint would not cure these deficiencies, and the court should 16

therefore dismiss the complaint without allowing the proposed amendment. Allwaste, lnc. v.
17 Hecht, 65 F.3d1523, 1530 (9th Cir. 1995); see also: Sheperd v. American HondaMotor Co.,
18

Inc., supra at 822 F. Supp. 631. 19

2O

21 4 The plaintiffs’ erroneous reliance on the decision of the District of Columbia district court, in

SEIUHealth & Welfare Fundv. Philip Morris, lnc., 83 F.Supp.2d 70, 87 (D.D.C. 1999), for the 22 proposition that a court must simply accept conclusory assertions of standing (See: Motion For
Reconsideration, p. 5, lines 8-16) is also noteworthy. The Ninth Circuit Court of Appeals 23 reached an exactly contrary result, and affirmed a Rule 12(b)(6) Motion To Dismiss, in Oregon
Laborers-Employers Health & Welfare Trust Fund v. Philip Morris, lnc., 185 F.3d 957 (9m Cir.

1999).

RESPONSE TO MOTION

FOR RECONSIDERATION

- 11

RYAN M. EDGLEI?, PLLC
4o~ E~ v~ ~,,,~.. s~i~ ~o~o
Y~drna, WA 98901 Photm: (509) 248-1740 Fax: (509) 248-1573

1 m. CONCLUSION

2

For the reasons stated herein, and for the reasons set forth in the previous submissions of

3 Zirkle and Matson supporting the Motion To Dismiss, the plaintiffs’ Motion For Reconsideratio

4 should be denied.

5

DATED this 23~d day of October, 2000.

6

7

8

Attorney for Zirkle Fruit and Matson

402 East Yaldma Ave., Suite 1080

9

Yakima, WA 98901

(509) 248-1740

10

11

12

Kirk Ehlis (WSBA # 22908)

Halverson & Applegate, P.S.

13

Attorneys for Matson Fruit Co,

P.O. Box 22730

14

Yakima, WA 98907-2715

(509) 575-6611

15

16

17

18

19

20

21

22

23

RESPONSE TO MOTION

FOR RECONSIDERATION

-12

RYAN M. EDGLEY, PLLC 402 East Yakir~ Ave., Suite 1080
Yakima, WA 98901
Phone: (509) 248-1740 Fax: (509) 24g-1573

 </s> 1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900
3 Seattle, WA 98101 (206) 623-7292
4
Howard W. Foster 5 JOHNSON & BELL, LTD
55 East Monroe, Suite 4100 6 Chicago, IL 60603
(312)372-0770
7
Attorneys for Plaintiffs 8

FILED IN THE U.S. DISTRICT COURT Easlern District of Washington
OCT 3 0 200O
JMClES R. LARSEN, CLERK DEPUTY

9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

10

AT YAKIMA

11

12 OLIVIA MENDOZA and JUANA

MENDIOLA, individually and on behalf

13 of all others similarly situated,

No. 00 CY 3024-FVS

14

Plaintiffs,

PLAINTIFFS’ REPLY IN

SUPPORT OF MOTION

15

FOR RECONSIDERATION

16 ZIRKLE FRUIT CO., a Washington corporation, MATSON FRUIT
17 COMPANY, a Washington corporation, and SELECTIVE EMPLOYMENT
18 AGENCY, INC., a Washington corporation,
19
Defendants.
20

2I

22

23

24

25

26

1348 I0 0~25 MTN DOC

TELEPHONE (21K~} 6~3-729Z ¯ FACSIMILE (206~ fi23-0594

1

Plaintiffs, Olivia Mendoza and Juana Mendiola, individually and on behalf of

2 all others similarly situated (plaintiffs), submit the following Reply brief in support of

3 their Motion for Reconsideration ("Mtn.").’

4

I. INTRODUCTION

5

6

Plaintiffs’ motion to reconsider is premised upon five arguments: (1) plaintiffs

7 have standing to sue for their lost wages under RICO; (2) the Court incorrectly refused

8 to take as true facts alleging standing; (3) that there is no precedent for dismissal of a

9 RICO case based upon lack of standing when the plaintiff has alleged an injury

10 "directly" caused by a RICO predicate act; (4) the possibility that other causes

11 contributed to plaintiffs’ injury not preclude plaintiffs’ standing to sue because

12 plaintiffs have alleged that defendants’ unlawful conduct was a substantial factor in 13 causing their injury;2 and (5) at a minimum, the Court should grant the plaintiffs leave

14

15 ’ Plaintiffs’ Motion to Reconsider, filed on October 11, 2000, was brought under

16 Fed. R. Civ. P. 59(e). Plaintiffs contended that reconsideration of the dismissal was 17 warranted on the ground that the Court committed "clear error" in dismissing the

18 Complaint, and not allowing amendment, in light of the Court’s express conclusion

19 that plaintiffs have alleged "direct injury" under RICO.

20 2 RICO confers standing on "[a]ny person injured in his business or property..."

21 by a violation of the statute. 18 U.S.C. § 1964(c). As plaintiffs have indicated, this
22 standing language was adopted by congress, verbatim, from the antitrust statutes.
23 Mtn. at 13, n.10. When it enacted RICO, Congress "adopt[ed] the cluster of ideas that
24 were attached to each borrowed word in the body of leaming from which it was taken 25 and the meaning its use will convey to the judicial mind unless otherwise instructed." 26 _Beck v. Prubis, __ U.S. 494 __, 120 S. Ct 1608, 1613 (2000) (applying common law

REPLY TO MOTION FOR RECONSIDERATION
1348.100025 M’rN.DOC

-1-

to file their proposed First Amended Complaint ("FAC"), which addresses the Court’s

2 concerns and demonstrates proximate cause and standing beyond dispute. Underlying

3 all of plaintiffs’ arguments are long-standing principles of damages law which courts

4 have adopted in common law tort and contract cases as well as in federal antitrust 5 litigation.3 Under these legal principles, plaintiffs’ allegations of causation and

6 damages are easily sufficient to withstand defendants’ motion to dismiss.

7 II. DEFENDANTS CITE NO AUTHORITY SUPPORTING DISMISSAL
8
A. The Complaint Alleges a "Concrete Loss"
9

10

Defendants cite Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303 (9t~

11 Cir. 1992) for the proposition that plaintiffs’ alleged injuries (depressed wages for past

12 labor) is not a "concrete loss." Defs.’ Response at 3-5.4 However, Imagineering

13

14 understanding of damages to RICO conspiracy even though such concepts were

15 uncodified in the statute). Indeed, while the concepts of direct and indirect injury are

16 not codified in the RICO statute, they have become the focus of this case.

17

3 Defendants’ failure to take issue with any of these authorities, or their

18 application to the instant case, is startling.
19 4 The Court’s Order refers to the concept of"concrete loss." See Order at 19, line
20 15. ("A showing of’injury’ requires proofofa concrete loss.") However, the Court 21 used the concept of "concreteness" in a manner that is inconsistent with the way the 22 Ninth Circuit uses the term: "Here, as in Imagineering and Sheperd, the plaintiffs’ 23 main flaw is their inability to concretely establish the degree to which their wages
24 have been affected by the defendants’ alleged violations." Order at 2 i, lines 20-22
25 (emphasis added). Thus, the Court suggested that the requirement of "concreteness" 26 means that defendants’ misconduct must be the sole cause of the plaintiffs’ injury. In

REPLY TO MOTION FOR RECONSIDERATION
1348.1o 0025 MTN DOC

-2-

1 requires nothing more than that the plaintiffs allege a past injury rather than one which 2 has not yet occurred.5 Accordingly, Imagineering does not control the outcome of this

3 case.

4

1. Sheperd Does Not Alter the Meaning of "Concrete Loss"

5

6

The only other case defendants cite with respect to "concrete loss," Sheperd v.

7 American Honda Motor Co., 822 F. Supp. 625,632 (N.D. Cal. 1993) ("the Sheperd

8 plaintiffs encountered only the possibility of diminished profits...") (emphasis added),

9 simply follows Imagineering. It does not apply to the instant case. Moreover, even if

10 Sheperd altered the "concrete loss" requirement as explicated in Imagineering, such an

11 interpretation of the law would have no effect on this Court. "Only the Supreme

12 Court or the Ninth Circuit en banc may overrule a [Ninth circuit] panel’s decision."

13 Alaska Trowel Trades Pension Fund v. Lopshire, 855 F. Supp. 1077, 1082 (D. Ala. 14 1994), reversed on other grounds, 103 F.3d 881 (9th Cir. 1996). Accord, Stairmaster

15 16 Imagineering, however, the Ninth Circuit used the term "concrete loss" to justify the 17 dismissal of the plaintiffs’ claim when there was uncertainty as to whether the 18 plaintiffs were damaged at all. "Although plaintiffs assert that if specified contracts 19 had not gone to Kiewit those contracts would have been awarded to plaintiffs’ prime 20 contractors, that cannot be established." Imagineering, 976 F.2d at 1310. By contrast, 21 plaintiffs in this case have already suffered a wage loss. Thus, the Ninth Circuit’s 22 "concrete loss" requirement has been satisfied.

23

5 The Imagineering plaintiffs alleged the loss of profits they theorized would have

24 been earned on subcontracts they further contended would have been awarded to them

25 had the defendant general contractor not violated RICO to obtain its general contracts

26 for public works construction projects. Imagineering, 976 F.2d at 1305-06.

REPLY TO MOTION FOR RECONSIDERATION
134B.10 0025 MTN DOC

1 Sports/Medical Prods. v. Pacific Fitness Corp., 916 F. Supp. 1049, 1056 (W.D. Wash. 2 1996) ("This court, however, is not bound by the decision of another district 3 court..."); Abbs v. Sullivan, 963 F.2d 918, 924 (7~h Cir. 1992) ("the unappealed

4 holdings of district judges have no precedential weight that is, no significance as

5 authority").

6

Plaintiffs Have Satisfied the "Concrete Loss" Requirement as

7

Defined By the Ninth Circuit

8

Plaintiffs have satisfied the Ninth Circuit’s "concrete loss" requirement because

9 they have alleged a present, actual loss (in the form of reduced wages). Plaintiffs

10 therefore respectfully request that this Court reconsider its reliance on Sheperd for the

I1 conclusion that a claim potentially involving multiple causes of injury is "intolerable"

12 under RICO (as a treble damage statute). Order at 22, lines 22-26. As plaintiffs have

13 detailed, the law makes every indulgence in favor of plaintiffs at the motion to dismiss

14 stage, particularly in relaxing the burden of proving damages. See Mtn. at 9-14. The

15 plaintiffs’ authorities establish that damages caused by muttiple parties are

16 nonetheless actionable. In this respect Judge Lynch’s unappealed opinion in Sheperd.

17 was clearly erroneous, and should not be followed by this Court.

18
B. Plaintiffs Have Standing to Sue Under RICO For Lost Wages
19

20

Plaintiffs cite many RICO cases holding that lost wages are compensable under

21 RICO as "business or property." Mtn. at 3. Defendants ignore them and cite only

22 Danielsen v. Burnside-Ott Aviation Training Center, Inc., 941 F.2d 1220, 1229 (D.C.

23 Cir. 1991) for the proposition that employees who accept a particular wage somehow

24 "waive" their right to later sue under RICO. Danielsen holds no such thing, it simply

25 holds that the plaintiffs in that case lacked standing to sue under RICO because their

26

REPLY TO MOTION FOR

-4-

RECONSIDERATION

1348.100025 M~N,DOC

1 wage structure was expressly preempted by another federal statute. Accordingly, 2 Danielsen has no application to the instant case.6

3 C. Plaintiffs Allege Proximate Causation

4

5

Plaintiffs cite Oregon Laborers, 185 F.3d at 963, for authority that "direct

6 injury" is "its central element[]" in RICO proximate causation. Mtn. at 7-8.

7 Defendants respond by asserting that the willingness of plaintiffs to be employed by

8 defendants (which is not alleged in the complaint) precludes the existence of

9 proximate causation. Defs. Response at. 8-9. Defendants cite no authority for this 10 assertion. Defendants’ inability to cite any authority by any court in which a RICO

11 plaintiff has been denied standing to sue after a court has expressly concluded the

12 plaintiff states a "direct" injury forcefully demonstrates that their argument has no

13 legal merit.

14 DB 15

The Court Should Grant Plaintiffs Leave To File Their Proposed First Amended Complaint

16

As plaintiffs also pointed out, the Ninth Circuit is clear that the better practice is

17 to allow leave to amend when a dismissal is granted pursuant to Fed. R. Civ. P.

18 12(b)(6). Doe v. United States of America, 58 F.3d 494, 496-97 (9t~ Cir. 1995). The

19

20

6 In Arizona Civ. Liberties Union v. Dunham, 88 F. Supp. 2d i066, 1080 (D. Ariz.

21 1999) Judge Silver held that the question of whether "[a] claim of standing based on 22 an injury resulting, in part, from a plaintiff’s own conduct is somewhat troubling...

23 because standing ..., [] is then partially within the plaintiff’s control." Judge silver 24 also identified this a an "issue of first impression." Id. While the Court initially
25 dismissed the case, following a motion for reconsideration, reversed itself, and held

26 the plaintiff had standing. See 2000 WL 1253251 (D. Ariz. 2000).

REPLY TO MOTION FOR RECONSIDERATION
1348.10 0025 MTN.DOC

-5-

TELEPHONE (206) 623-’~2~2 * FACSIMILE f206) 623-0594

1 defendants do not dispute this proposition. More tellingly still, the defendants do not 2 even address the new allegations in the FAC. Defendants’ tacit admission that the

3 new allegations are sufficient to make out causation is further reason why the

4 plaintiffs’ motion should be granted.

5

IlL CONCLUSION

6

7

For the reasons stated above as well as those stated in the plaintiffs’ opening

8 brief, plaintiffs respectfully request that the Court reconsider and vacate its order

9 granting defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiffs’ complaint

10 and allow plaintiffs to file the First Amended Complaint attached to the Motion to

11 Reconsider.

12

DATED October 27, 2000.

13

HAGENS BERMAN LLP

14

15

16

Steve W. Berman, WSBA #12536

17

Andrew M. Volk, WSBA #27639

1301 Fifth Avenue, Suite 2900

18

Seattle, WA 98101

19

(206) 623-7292

20

Howard W. Foster

21

JOHNSON & BELL, LTD.

22

55 E. Monroe St., Suite 4100 Chicago, IL 60603

23

(312) 372-0770

24

Attorneys for Plaintiffs

25

26

REPLY TO MOTION FOR

-6-

RECONSIDERATION

134810 0025 MTN.DOC

1

DECLARATION OF SERVICE

2

3

4

I, Lynn Brammeier, declare under penalty of perjury under the taws of the State

5 of Washington that the following facts are true and correct:

6

I am a citizen of the United States, over the age of 18 years, and not a party to or

7 interested in the within-entitled cause. I am an employee of the law firm Hagens

8 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,

9 Washington 98101.

10

On October 27, 2000, I caused an original and one copy of the following

11 document to be sent via UPS overnight mail for filing with the Clerk of the District

I2 Court, Eastern District of Washington, West 920 Riverside Ave., Room 840, U.S.

13 District Courthouse, Spokane, WA., 99201 on October 30, 2000:

14

I also caused a copy of the following document to be served on counsel of

15 record in the manner indicated below:

16

PLAINTIFFS’ REPLY TO MOTION FOR RECONSIDERATION

17

(Declaration of Service attached)

18

19 Brendan V. Monahan VELIKANJE, MOORE & SHORE, P.S.
20 405 East Lincoln Ave. P.O. Box 22550

21

Yakima, WA 98907 Attorneys for Defendant Selective

22 Employment Agency, Inc.
( x ) U.S. MAIL

23 ()FAX

( ) MESSENGER

24 ( ) OVERNIGHT MAIL

25

26

DECLARATION OF SERVICE

-1-

TELEPHONE {2fl6) ~,23-7292 ¯ ~’ACSIMILE (206} 623.1}594

1345100013 BSC.DOC

1 Ry.an M. Edtgley_ LAW OFFICE OF RYAN M. EDGLEY,
2 PLLC. 402 East Yakima Ave., Suite 1080
~ 3 Yakima, WA 98901 ttomeys for Defendants Matson Fruit 4 ompany and Zirkle Fruit Co.
( x ) U.S. MAIL
5 ()FAX ( ) MESSENGER
6 ( ) OVERNIGHT MAIL

7
Walter G. Meyer 8 Meyer, Fluegge & _Tenney, P.S.
230 South Second Street 9 P.O. Box 22680
Yakima, WA 98907
10 Attorneys for Defendant Zirkle Fruit Co. ( x ) U.S. MAIL
11 ( ) FAX
( ) MESSENGER
12 ( ) OVERNIGHT MAIL

13

14

15

Executed on October 27, 2000, in Seattle, Washington.

16

17

18
LyI~t ’ammeler
19

20

21

22

23

24

25

26

DECLARATION OF SERVICE

-2-

1348 10 0013 BSC.DO,C

 </s> 1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 Kevin P. Roddy HAGENS BERMAN LLP
3 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101
4 (206) 623-7292

5 Howard W. Foster JOHNSON & BELL, LTD.

6

55 E. Monroe Street, Suite 4100 Chicago, IL 60603

7 (312)372-0770

FILED IN THE U.S. DISTRICT COURT Eastern District o~ Washington
JAN 0 ? 2003
J/~ES R. LARSEN, CLERK

8 Attorneys for Plaintiffs

9

10 UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF WASHINGTON

AT YAKIMA

12

13 OLIVIA MENDOZA and JUANA

14 MENDIOLA, individually and on behalf

of all others similarly situated,

No. CY-00-3024-FVS

15
16
go

Plaintiffs,

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR THE COURT TO TAKE SUPPLEMENTAL

17 ZIRKLE FRUIT CO., a Washington
18 corporation, MATSON FRUIT COMPANY, a Washington corporation

JURISDICTION OVER SELECTIVE EMPLOYMENT AGENCY, INC.

19 and SELECTIVE EMPLOYMENT AGENCY, INC., a Washington

20 corporation,

21

Defendants.

22

23

Plaintiffs, Olivia Mendoza and Juana Mendiola, individually and on behalf of

24 all others similarly situated (hereafter "Plaintiffs"), submit the following

25

26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -1SELECTIVE
1348 10 0046 MTN DOC
ORIGI, AL

BOSTON LOS ANGELES PHOENIX SEATTLE 1301 FIFTH AVENUE, SUITE 2900 * SEATTLE, WA 98101
TELEPHONE (206) 623-7292 * FACSIMILE (206) 623-0594

1 Memorandum in support of their request that the Court take supplemental jurisdiction

2 over defendant Selective Employment Agency, Inc. ("Selective").

3

I. INTRODUCTION

4

As the Court is aware, the Ninth Circuit has made clear that its decision in

5 AyalaI should no longer be read to preclude the exercise of supplemental jurisdiction

6 over Plaintiffs’ claims against Selective. Mendoza v. Zirkle Fruit Co., 301 F.3d 116 7 (9th Cir. 2002). Accordingly, supplemental jurisdiction over Selective is appropriate

8 pursuant to 28 U.S.C. § 1367 so long as (i) "the state [law] conspiracy claims against

9 Selective Employment constitute part of the same constitutional case as the federal

10 RICO claims against the growers" and (ii) this Court in its discretion determines that

11 "such jurisdiction would be appropriate in the context of this litigation." Mendoza,

12 301 F.3d at 1174-75.

13

Plaintiffs respectfully submit that there is no question but that their civil

14 conspiracy claims constitute part of the "same constitutional case" as the RICO claim

15 as the claims arise out of the same nucleus of operative facts, and will involve the

16 same witnesses and documents. Accordingly, Plaintiffs move this Court to exercise

17 its discretion to take jurisdiction over those claims so that this case may be resolved

18 in a single proceeding and the purposes of the supplemental jurisdiction statute may

19 be fulfilled.

20

21

22

23

~Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir. 1977).

24

25

26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -2SELECTIVE
1348.10 0046 MTN.DOC

HAGENS BERMAN LLP
BOSTON LOS ANGELES PHOENIX SEATTLE 1301 FIFTH AVENUE. SUITE 2900 ¯ SEATT[ .E. W A 9810 I
TELEPHONE (206) 623-7292 ¯ FACSIMILE (206) 623-0594

1

II. FACTUAL BACKGROUND

2

Plaintiffs have filed a two-count Complaint against Selective and the two

3 grower defendants, Zirkle Fruit Co. ("Zirkle") and Matson Fruit Co. ("Matson").2

4 Count I alleges violations of the Racketeer Influenced and Corrupt Organizations Act

5 (RICO), 18 U.S.C. § 1961, et seq., against defendants Zirkle Fruit Co. ("Zirkle") and

6 Matson Fruit Co. ("Matson"). Selective is not a defendant in Count I - instead, it is

7 part of two "association-in-fact" enterprises under 18 U.S.C. § 1961 (4) (the "Zirkle-

8 Selective" enterprise and the "Matson-Selective" enterprise.

9

Count II alleges defendant Selective conspired with Zirkle and Matson to

10 violate the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1324(a)(3)(A), by

11 knowingly employing illegal aliens. The Complaint refers to the conspiracy as "the

12 illegal immigrant hiring scheme," and Plaintiffs allege that the conspiracy injured

13 them by depressing the wages they received as employees of Zirkle and Matson.

14 Because the conspiracy claims against Selective and the growers arise out of the same

15 nucleus of operative fact as the RICO claims against the growers, the Complaint

16 pleads "supplemental jurisdiction" over Selective as a "pendent party" pursuant to 28

17 U.S.C. § 1367(a).

18

19

20

21

2 On December 12, 2002, Plaintiffs filed a motion for leave to file their First

22 Amended Complaint ("FAC"), which defendants have not opposed. Regardless of

23 whether the Court considers the Complaint or the FAC, the analysis with respect to

24 the supplemental jurisdiction question is unaffected. 25

26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -3-
SELECTIVE

HAGENS ~ERMAN LLP

1348 10 0046 MTN.DOC

1

III. ARGUMENT

2

The Ninth Circuit’s ruling has asked that this Court "determine, in the first

3 instance, whether the application of the Gibbs3 standard permits the exercise of

4 supplemental jurisdiction, and.., exercise discretion over whether such jurisdiction

5 would be appropriate in the context of this litigation." Mendoza, 301 F.3d at 1174-

6 75. Plaintiffs accordingly request that the Court determine that supplemental 7 jurisdiction is appropriate under Gibbs, and exercise it discretion to take jurisdiction 8 over Plaintiffs’ state-law conspiracy claims against Selective and the grower 9 defendants.

10 A. 11 12

Plaintiffs’ State Law Civil Conspiracy Claims Constitute Part of the Same Constitutional "Case" as the Federal-RICO Claims
As the supplemental jurisdiction statute provides:

13

The district courts shall have.supplem.ental juris.diction over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the

14

same case or controversy_ under Article III of the United

btates Constitut!on. Suc.h supplemental jurisdiction shall

15

include claims tlaat involve tfi~ joinder or intervention of

16

additional parties. [28 U.S.C. I} 1367(a).]

17 Under this statute and the United States Constitution, this Court may take jurisdiction

over the claims against Selective and the growers so long as they constitute "’but one 18

19 constitutional ’case’ and ’derive from a common nucleus of operative fact’" with the

20 federal RICO claims against the growers. Mendoza, 301 F.3d at 1173 (quoting

21 Gibbs, 383 U.S. at 725.)

22

There can be no doubt that Plaintiffs’ civil conspiracy claim meets the Gibbs

23 test. In order for supplemental jurisdiction to be Constitutional under Gibbs:

24

25

3 UnitedMine Workers v. Gibbs, 383 U.S. 715,725 (1966).

26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -4-
SELECTIVE

HAGENS BERMAN LLP

1348 10 0046 M’IN.DOC

1

The federal claim must have substance sufficient to confer

su_bject m. atter jurisdiction on the court. The state and

2

federal claims must derive from a common nucleus of

operative fact. But if, considered without regard to their

3

f~deral or state character, a plaintiff’s claims are such that

he would ordinarily be expected to try them al! in one

4

judicial proceed.ing, then, assuming substantiality of the

federal issues, there is power in the federal courts to hear

5

the whole. [Citations omitted.]

6 Gibbs, 383 U.S. at 725.

7

Here, as the Ninth Circuit found, Plaintiffs state a claim under RICO. The

8 gravamen of that claim -- that defendants Zirkle and Matson used Selective to 9 knowingly acquire undocumented workers who were smuggled or harbored in lO violation of U.S. immigration law- is the same as the gravamen of the state-law

11 civil conspiracy count against all three defendants. Quite obviously, given the 12 overwhelming identity of issues, witnesses and evidence that will be necessary to 13 resolve the state and federal claims, Plaintiffs would certainly be expected to try them

14 all in one judicial proceeding. In short, because Plaintiffs’ entire Complaint raises a 15 single "case" involving substantial federal issues, supplemental jurisdiction over

16 Plaintiffs’ claims against Selective fully comports with Article III of the Constitution. 17 See, e.g., Palmer v. HospitalAuth., 22 F.3d 1559, 1566 (11tu Cir. 1994) (finding that

18 district court had pendent party jurisdiction because claims involved the "same facts,

19 occurrences, witnessess, and evidence.")

20 B. In Its Discretion, This Court Should Exercise Supplemental Jurisdiction Over The Civil Conspiracy Claims Against Selective And The Growers
21

As the Ninth Circuit held, this Court’s analysis does end upon the finding that 22

it has the power to exercise supplemental jurisdiction over the state law civil

23

conspiracy claims. Indeed, "It]he decision to exercise that jurisdiction remains

24

discretionary with the district court." Mendoza, 301 F.3d at 1174 (citing City of

25

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 172-73 (1997). Plaintiffs

26

MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -5-

HAGENS BERMAN LLP

SELECTIVE

BOSTON Los ANGELES PHOENIX SEATTLE

1348.10 0046 MTN.DOC

1301 F~FTH AVENt E, SUITE 2900 ¯ SEATTLE, WA 98101 TELEPHONE (206) 623-7292 # FACSIMILE (206) 623-0594

1 respectfully submit that there is every reason for exercising supplemental jurisdictio

2 in this case, and no reason for declining to do so.

3

As the Supreme Court reiterated in Int’l ColL of Surgeons, in determining

4 whether to exercise supplemental jurisdiction, "’district courts [should] deal with

5 cases involving pendent claims in the manner that best serves the principles of

6 economy, convenience, fairness, and comity which underlie the pendent jurisdiction 7 doctrine.’" 522 U.S. at 172-173 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 8 343,357 (1988). Here, these principles all counsel in favor of the exercise of pendent

9 jurisdiction.

10

Supplemental jurisdiction is economical, convenient and fair here. Were this

11 Court to decline jurisdiction, Plaintiffs would be forced to litigate virtually identica

12 claims in state court against Selective. Moreover, it would be wasteful and illogical

13 to bring state-law civil conspiracy claims against Selective alone - while proceeding

14 against its co-conspirators on the identical civil conspiracy claim in this Court. The

15 only economical, convenient and fair approach here is to fully resolve all these claim

16 in this Court.

17

Concerns of comity also counsel in favor of the exercise of supplemental

18 jurisdiction here. After all, both the predicate RICO acts, and the unlawful acts at the

19 heart of the civil conspiracy claim, are violations of federal Immigration law. There

20 is no reason to have a state court proceeding decide whether those predicate

21 violations are made out when the proceeding before this Court will resolve that very

22 issue - once, and for all.

23

Moreover, while the supplemental jurisdiction statute "enumerat[es] the

24 circumstances in which district courts can refuse its exercise" Int’l Coll. of Surgeons,

25

26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -6SELECTIVE
1348 10 0046 MTN.DOC

HAGENS ~ERMAN LLP
BOSTON LOS ,ANGELES PHOI~NIX SEATTLE 1301 FIFTH AVENUE. SUITE 2900 ¯ SEATTLE. WA 98101
TELEPHONE (206)623-7292 * FACSIMILE (206) 623-0594

1 522 U.S. at 173,4 no plausible argument can be made that any such circumstances 2 apply here. Indeed, 28 U.S.C. § 1367(c) provides that a court may decline to exercise 3 supplemental jurisdiction when:

4

(1) the claim raises a novel or complex issue of State law,

5

(,2).the claim substantially predominates over the claim or

maims over which the district court has original jurisdiction,

6

(3) the district court has dismissed all claims over which it

7

has original jurisdiction, or

8

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction. 9

10

Here, Plaintiffs have alleged a straightforward civil conspiracy claim under

established Washington law. See, e.g., Lewis Pacific Dairymen’s Asso. v. Turner, 50 11

12 Wn.2d 762, 772, 314 P.2d 625 (1957) (citing Harrington v. Richeson, 40 Wn.2d 557,

13 570, 245 P.2d 191 (1952)):

14

A conspiracy is a combination of two or more persons to commit a criminal or unlawful act, or to commit a lawful act

15

bmyocrerimpeirnsaolnosr.0uyncloawncfeurltmed.eaacntiso5notroaaccocommbpinliasthioannoufntlwawo fourl

16

purpose, or some purpose not in itself unlawful by unlawful means ....

17 To constitute a conspiracy the pu.rpo.se to be effected by it

18

must be unlawful in its nature or In the means to be

employed for its accomplishment ....

19

20

21

4 See also Executive Software N. Am. v. United States Dist. Court, 24 F.3d 1545,

22 1551 (9th Cir. 1994) ("once it is determined that the assertion of supplemental

23 jurisdiction is permissible under sections 1367(a) and (b), section 1367(c) provides

24 the only valid basis upon which the district court may decline jurisdiction and remand

25 pendent claims.") 26
MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER - 7 SELECTIVE
1348.10 0046 MTN DOC

HAGENS BERMAN LLP
BOSTON LOS ANGELES PHOENIX SEATTLE 1301 FIFTII AVENUE, SUITE 2900 o GEATTLE, WA 98101
TELEPHONE (206) 623-7292 ¯ FACSIMILE (206) 623-0594

1 Accord, Deschamps v. Luther, 64 Wn.2d 728,393 P.2d 945 (1964); Sterling Bus.

2 Forms v. Thorpe, 82 Wn. App. 446, 451,918 P.2d 531,533 (1996). Here, the

3 combination is between Selective and its grower-co-conspirators, and the purpose

4 may be characterized as either to commit criminal violations of the Immigration laws

5 or to achieve the lawful purpose of lowering wages through violations of the

6 Immigration laws. Either way, Plaintiffs allege a classic civil conspiracy claim und

7 Washington law.

8

Nor can it be said that the civil conspiracy claim predominates over the federal

9 RICO claim. Indeed, both claims revolve around the same facts, and seek damages

10 resulting from depressed wages. If anything, the federal RICO claim (with its treble

11 damages) predominates over the state law civil conspiracy claim.

12

Finally, Plaintiffs’ federal claims are pending in this Court, and there are no

13 other "exceptional" or "compelling" reasons for declining to exercise supplemental

14 jurisdiction as the statute requires. 28 U.S.C. § 1367(c)(4). To the contrary, strong

15 reasons exist for exercising supplemental jurisdiction here.

16

IV. CONCLUSION

17

For the reasons stated above, Plaintiffs respectfully request that this Court

18 exercise jurisdiction over Plaintiffs’ state law civil conspiracy claims against

19 Selective.

20

DATED: January 6, 2003

21

HAGENS BERMAN LLP

22

23
24
25
26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER SELECTIVE

Steve W. Berman, V~SBA No. 12536
Andrew M. Volk, WSBA No. 27639 1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
(206) 623-7292

-8-

HAGENS BERMAN LLP

1348 10 0046 MTN.DOC

1

Howard W. Foster

JOHNSON & BELL, LTD.

2

55 E. Monroe St., Suite 4100

Chicago, IL 60603

3

(312) 372-0770

4

Attomeys for Plaintiffs

5

6

7

8

9

10

11 12

13

14 15 16 17

18

19 20

21

22
23
24
25
26 MEM. IN SUPPORT OF PLS’ MOT. RE JURISDICTION OVER -9SELECTIVE

1348.10 0046 MTN DOC

1

DECLARATION OF SERVICE

2 I, Lynn Brammeier, declare under penalty of perjury under the laws of the State
3 of Washington that the following facts are true and correct:
4 I am a citizen of the United States, over the age of 18 years, and not a party to
5 or interested in the within-entitled cause. I am an employee of the law firm Hagens
6 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,
7
Washington 98101. 8
On January 6, 2003 I caused an original and one copy of the following 9
document to be sent via UPS overnight mail for filing with the Clerk of the District 10
Court, Eastern District of Washington, West 920 Riverside Ave., Room 840, U.S. 11

12 District Courthouse, Spokane, WA., 99201 on January 7, 2003:

13

I also caused a copy of the following document to be served on counsel of

14 record in the manner indicated below:

15 NOTICE OF HEARING
16

17

PLAINTIFFS’ MOTION FOR THE COURT TO TAKE

SUPPLEMENTAL JURISDICTION OVER SELECTIVE

18

EMPLOYMENT AGENCY, INC.;

19

PLAINTIFFS’ MEMORANDUM IN SUPPORT MOTION FOR THE 20
COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER

21

SELECTIVE EMPLOYMENT AGENCY, INC.;

22 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR THE

23

COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER

24

SELECTIVE EMPLOYMENT AGENCY, INC.; and

25

DECLARATION OF SERVICE

26

DECLARATION OF SERVICE

-1-

1348.10 0013 BSC DOC

BOSTON LOS ANGELES PHOENIX SEATTLE
1301 FIFTH AVENIrE, SUITE 2900 ¯ SEATTLE, WA 98101 TELEPHONE (206) 623-7292 ¯ FACSIMILE (206) 623-0594

1 2 Brendan V. Monahan
VELIKANJE, MOORE & SHORE, P.S. 3 405 East Lincoln Ave. 4 P.O. Box 22550
Yakima, WA 98907 5 Attorneys for Defendant Selective 6 Employment Agency, Inc.
( ) U.S. MAIL 7 ( ) FAX 8 ( ) MESSENGER
( X ) OVERNIGHT MAIL 9
10 Ryan M. Edgley
11 EDLEY & BEATTIE, P.S. 12 201 East D Street 13 Yakima, WA 98901
Attorneys for Defendants Matson Fruit 14 Company 15 ( ) U.S. MAIL
( ) FAX 16 ( ) MESSENGER 17 ( X ) OVERNIGHT MAIL
18
19
20
21
22
23
24
25
26

DECLARATION OF SERVICE
1348. I 0 O013 BSC DOC

-2-

BOSTON LOS ANGELES PHOENIX SEATTLE 1301 FWrH AVENUE, SUITE 2900 * SEA~fLE, WA 98101
TELEPHONE (206) 623-7292 ¯ FACSIMILE (206) 623-0594

1
2 Terry Schmalz Halverson & Applegate, P.S.
3 311 N. 4th St.
4 P.O. Box 22730 Yakima, WA 98901
5 Attorneys for Defendants Matson Fruit
6 Company ( ) U.S. MAIL
7 ( ) FAX
8 ( ) MESSENGER ( X ) OVERNIGHT MAIL
9

10

11 Walter G. Meyer
12 Meyer, Fluegge & Tenney, P.S.
13 230 South Second Street P.O. Box 22680
14 Yakima, WA 98907
15 Attorneys for Defendant Zirkle Fruit Co. ( ) U.S. MAIL
16 ( ) FAX
17 ( ) MESSENGER ( X ) OVERNIGHT MAIL
18

19

20

21

Executed on January 6, 2003, in Seatt.le, Washingtgf~.

22

23

24

Lynn/~ammeler

25

i

26

HAGENS BERMAN LLP

DECLARATION OF SERVICE

-3-

1348.10 0013 BSC.DOC

BOSTON LOS ANGI~LRS PHOENIX SEATTLE 1301 FIFTH AVENUE, SUITE 290O ¯ SEA~LE, WA 98101
TELEPHONE (206) 623-7292 ¯ FACSIMILE (206) 623-0594

 </s> 1 Brendan V. Monahan 2 Velikanje, Moore & Shore, P.S. 3 405 East Lincoln Avenue 4 P.O. Box 22550 5 Yakima, Washington 98907 6 Telephone: 509-248-6030
7
8 Attorneys for Defendant Selective Employment

FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
JAN 2 1 2003
JAMES R. LARSEN, CLERK DEPUTY’
YAK]MA, WASHINGTON

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on
14 behalf of all other similarly situated,

NO. CY-00-3024-FVS

15

16

Plaintiffs,

DEFENDANT SELECTIVE

17

) EMPLOYMENT, INC’ S

18

MEMORANDUM IN

OPPOSITION TO PLAINTIFFS’
19
ZIRKLE FRUIT CO., a Washington ) MOTION FOR THE COURT TO 2O corporation, MATSON FRUIT ) TAKE SUPPLEMENTAL

21 COMPANY, a Washington corporation) JURISDICTION

22 and SELECTIVE EMPLOYMENT )

23 AGENCY, INC., a Washington ) ORAL ARGUMENT REQUESTED

24 corporation,

)

25

)

26

Defendants.

)

27

)

28

29

In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002), the Ninth Circuit

30
31 directed this Court "to determine ... whether ... the Gibbs standard permits the

32 exercise of supplemental jurisdiction, and to exercise discretion over whether such 33

DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM 1N OPPOSITION TO
PLAINTIFFS’ MOTION FOR COURT TO
TAKE SUPPLEMENTAL JURISDICTION-1 309201b

Velikanje, Moore & Shore, P.S.
405 East Lincoln Ave. P.O, Box 22550
Yakima, WA 98907 (509) 248-6030

jurisdiction would be appropriate in the context of this litigation." Ida, at 1174-75.

For the reasons that follow, this Court should decline supplemental jurisdiction over

4
5 Count II.

6
I. FACTS
7

8

Plaintiffs sued Selective Employment, Inc. ("’Selective"), in March, 2000.

9

10 Selective was named defendant on the basis of an alleged conspiracy to violate the
11

12 Immigration and Nationality Act. See Plaintiffs’ Complaint, Count II, ¶¶ 57-62.
13
14 Plaintiffs’ First Amended Complaint alleges the same claim against Selective.

15

16

Plaintiffs’ only claim against Selective is civil conspiracy, a tort actionable

17
18 under the common law of Washington. See Plaintiffs’ RICO Case Statement, ¶ (b).

19

Plaintiffs have acknowledged that this Court’s exercise of jurisdiction over

2O

21 their civil conspiracy claim as pleaded against all defendants is a matter of discretion:
22

23

This Court has subject matter jurisdiction over Count I under the federal

24

question doctrine pursuant to 28 U.S.C. § 1331 and 18 U.S.C. § 1964(a).

25

This Court ~ exercise supplemental jurisdiction over Count II

26

pursuant to 28 U.S.C. § 1367(a).

27

28

Plaintiffs’ Complaint, ¶ 11; see also Plaintiff’ s Proposed First Amended

29

Complaint, ¶ 12 (stating same) (emphasis added).

3O
If it were the only defendant in this suit, Selective could not be sued by these
31

32 Plaintiffs in federal court because the Court would have neither federal question nor
33

34
DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO

PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-2 309201b

Velikanje, Moore & Shore, P,S. ~t|er~:eys at law
405 East Lincoln Ave. P,O, Box 22550
Yakima, WA 98907
(509) 248-6030

1 diversity-based jurisdiction over Selective. Thus, Plaintiffs’ Motion, as related to

2
3 Selective, asks this Court both to take jurisdiction over a state law claim over which

4
5 it has no original jurisdiction and to hale into federal court a defendant that could not

6
7 be so haled but for Plaintiffs’ naming other defendants and pleading another claim.

8

II. ARGUMENT

9

10 A. Standards for Review.
11

12

Analysis of the jurisdictional question here begins with the Gibbs standard.

13

14 The Court in Carnegie-Mellon University v. Cohill, 484 U.S. 343,348-49, 108 S.Ct.

15
16 614, 98 L.Ed.2d 720 (1988) described the Gibbs standard as follows"

17

18

In Gibbs, the Court... establish(ed) a new yardstick for deciding whether

a federal court has jurisdiction over a state-law claim brought in a case
19
that also involves a federal question. The Court stated that a federal

20

court has jurisdiction over an entire action, including state-law claims,

21

whenever the federal-law claims and state-law claims in the case "derive

22

from a common nucleus of operative fact" and are "such that [a plaintiff]

23

would ordinarily be expected to try them all in one judicial proceeding."

24

25

From Gibbs forward, the exercise of jurisdiction over claims having a

26
27 "common nucleus of operative fact" has been a matter of discretion in the trial court:

28

29

... Gibbs drew a distinction between the power of a federal court to hear

3O

state-law claims and the discretionary exercise of that power. The Gibbs Court recognized that a federal court’s determination of state-law claims

31

could conflict with the principle of comity to the States and with the

32

promotion of justice between the litigating parties. For this reason,

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-3 309201b

Vellkanie, Moore & Shore, P.S.
at[orne~/~ at la~ 405 East Lincoln Ave.
P,O, Box 22550 Yakima, WA 98907
(509) 248-6030

Gibbs emphasized that "pendent jurisdiction is a doctrine of discretion,

2

not of plaintiffs right." Under Gibbs, a federal court should consider

3

and weigh in each case, and at every stage of the litigation, the values of

4

judicial economy, convenience, fairness, and comity in order to decide

5

whether to exercise jurisdiction over a case brought in that court

involving pendent state-law claims. When the balance of these factors

6

indicates that a case properly belongs in state court, ... the federal court

7

should decline the exercise of jurisdiction by dismissing the case

8

without prejudice.

9

10

Id., 484 U.S. at 349-50.

11

12

The codification of pendent party jurisdictional principles into 28 U.S.C. §

13

14 1367 has not changed the fundamentally discretionary nature of this type of

15
16 jurisdiction:

17

18

The supplemental jurisdiction statute codifies (the Gibbs) principles.

After establishing that supplemental jurisdiction encompasses "other

19

claims" in the same case or controversy as a claim within the district

20

courts’ original jurisdiction, ..., the statute confirms the discretionary

21

nature of supplemental jurisdiction by enumerating circumstances in

22

which district court can refuse its exercise .... Depending on a host of

23

factors, then - including the circumstances of the particular case, the

24

nature of the state law claims, the character of the governing state law,

25

and the relationship between state and federal claims - district courts

26

may decline to exercise jurisdiction over supplemental state law claims.

27

28

City of Chicago v. International College of Surgeons, 522 U.S. 156, 173,

29

118 S.Ct. 523,139 L.Ed.2d 525 (1997).

3O

Thus, the Ninth Circuit recognizes that a question of supplemental jurisdiction

31

32 still involves considerations of economy, convenience, fairness and comity:
33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-4 309201b

Velikanje, Moore & Shore, P.S.
attorneys at law 405 East Lincoln Ave.
P.O, Box 22550
Yakima, WA 98907
(sos)

1

... (W)e emphasize that actually exercising discretion and deciding

2

whether to decline, ..., supplemental jurisdiction over state law claims

3

when any factor in subdivision (c) is implicated is a responsibility that

4

district courts are duty-bound to take seriously .... While discretion to

5

decline to exercise supplemental jurisdiction over state law claims is

6

triggered by the presence of one of the conditions in § 1367(c), it is

7

informed by the Gibbs values "of economy, convenience, fairness, and

comity."

8

9

Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997).

10

11

12 B. This Court should decline to exercise supplemental jurisdiction over

13

Count II as pleaded against Selective under 28 U.S.C. § 1367(c)(1) and (4).

14

15

28 U.S.C. 1367(c) provides:

16

17

The district courts may decline to exercise supplemental jurisdiction

18

over a claim under subsection (a) if-

19

(1 ) the claim raises a novel or complex issue of State law,

20

21

(4) in exceptional circumstances, there are other compelling reasons for

22

declining jurisdiction.

23

24

1) Jurisdiction should be declined pursuant to 28 U.S.C. § 1367(c)(1).

25

26

Washington courts have not decided whether the violation of a federal penal

27
28 statute providing no private civi! right of action can support a claim for civil

29
conspiracy. Thus, supplemental jurisdiction should be declined under 28 U.S.C. §
30

31 1367(c)(1).
32

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-5 309201b

Velikanje, Moore & Shore, P.S,
405 East Lincoln Ave. P.O. Box 22550
Yakima. ~A gsg07
(soe) 248.6030

1

Unlike criminal conspiracy, adjudication of civil conspiracy claim does not

2
3 depend on the conspiracy, but on damage flowing from conspirators’ actions:

4

5

In a criminal conspiracy, the conspiracy is the gist of the crime and the

6

function of the overt act is to show that the agreeing or conspiring has

progressed from the field of thought and talk into action. It completes

7

the offense.

8

9

In a civil conspiracy, the conspiracy itself is not the cause of action,

10

without overt acts, because again it is the overt act which moves the

11

conspiracy from the area of thought and conversation into action and

12

causes the civil injury and resulting damage. Accordingly, the cases

13

hold that the damage in a civil conspiracy flows from the overt acts and

14

not from the conspiracy.

15

16

Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959).

17

18

Washington follows this principle:

19

While an action may lie for damages suffered by reason of torts

20

committed pursuant to a conspiracy, the conspiracy itself, without any

21

actionable wrongs being done thereunder, ordinarily cannot be made the

22

subject of a civil action, and may be of no consequence except as

23

bearing on the rules of evidence, the persons liable, or aggravation.

24

25

W..:G. Platts, Inc., v. Platts, 73 Wn.2d 434,438-39,438 P.2d 867 (1968)

26

(quoting 15A C.J.S. Conspiracy § 21, at 664 (1967)).

27

28

Here, Plaintiffs plead civil conspiracy on the basis of an alleged agreement to

29
commit violations of the Immigration and Nationality Act ("INA"). The INA,
3O

31 however, provides no private right of action for damages. Lopez v. Arrowhead
32

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-6 309201b

Velikanje, Moore & Shore, P.S.
~tto~ne~ at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(sog) 248-~o3o

Ranches, 523 F.2d 924,926 (9th Cir. 1975) (stating 8 U.S.C. § 1324 "is solely a penal

provision and creates no private right of action"); see also Flores v. George Braun

4

5

Packing Co., 482 F.2d 279, 279-80 (5th Cir. 1973) (finding no private right of action

6 under INA provisions setting forth criminal penalties for harboring aliens) and
7
8 Chavez v. Freshpict Foods, 456 F.2d 890- 893-94 (10th Cir. 1972) (reaching same 9
10 conclusion). 11

12

District Courts regularly decline supplementalj urisdiction when presented with

13

14 claims involving novel questions of state law. See., e._g~., Bowers v. NCAA, 188

15 16 F.Supp.2d 473, 481 (D.N.J. 2002)(declining supplemental jurisdiction over state law

17 claims involving novel questions of New Jersey law); Winn v. North American
18

19 Philips Corp., 826 F.Supp. 1424, 1425-26 (S.D.Fta. 1993) (same with Florida law).
20

21

A recurring theme in these decisions is that novel questions of state law should

22

23 be resolved by the state’s courts. See, e._g~., Powers v. CSX Transportation, Inc., 190 24 25 F.Supp.2d 1284, 1296 (S.D.Ala. 2002) (declining supplemental jurisdiction by stating
26 27 that novel issues of state law "deserve resolution by an Alabama jurist"); Parkinson 28 29 v. Anne Arundel Medical Center, Inc., 214 F.Supp. 511, 519-20 (D.Md. 2002)

30 (declining supplemental jurisdiction by stating "novel questions of state tort law ...
31

32 are better addressed by the Maryland courts"); McCullough v. Branch Banking and 33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR COURT TO
TAKE SUPPLEMENTAL JURISDICTION-7
309201b

Velikanje, Moore & Shore, P.S.
405 Esst Lincoln Ave. P~O, Box 22550
Yakima. WA 98907

1 Trust Co., 844 F.Supp. 258,260 (E.D.N.C. 1993) (declining supplementalj urisdiction

2
3 because Plaintiffs’ state law claims "present ... unsettled issues of North Carolina law

4
5 which would be more appropriately resolved by a North Carolina court").

6
In adjudicating Count II, this Court will have to determine whether Washington
7

8 law allows damages on the basis of an alleged conspiracy to violate the INA although
9

10 no private right of action exists under the INA. Plaintiffs’ civil conspiracy claim
11

12 presents a novel question of state law that should be resolved by Washington courts,

13

14 and this Court should decline to exercise supplemental jurisdiction over Count II.

15

16

2) Jurisdiction should be declined pursuant to 28 U.S.C. § 1367(c)(4).

17

18

28 U.S.C. § 1367(c)(4) permits a Court to decline supplemental jurisdiction on

19 the basis of"other compelling reasons". Several such reasons exist here.
2O

21

First, pendent party jurisdiction may still present Constitutional problems, even

22

23 after Mendoza. The Mendoza Court did not explicitly overrule Ayala or declare

24
25 pendent party jurisdiction Constitutional. Nor did Mendoza decide that supplemental

26
27 jurisdiction over Selective or the state law claim involving Selective was appropriate.

28
29 Further, Mendoza says nothing about Williams v. United States, 405 F.2d 951,954

30 (9’h Cir. t969) and Hymer v. Chai, 407 F.2d 136, 137-38 (9th Cir. 1969), the cases
31

32

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-8 309201b

Velikonje, Moore & Shore, P.S.
~tt0r~l~’$ at Jaw 405 East Lincoln Ave.
P.O. Box 22550 Yakirna, WA 98907
(5o9) 248-6o3o

1 relied upon by A_A_A_~ala in determining that pendent party jurisdiction offends the
2

3 Constitution.

4

5

Rather, the Mendoza Court found that A_&y.a~ was "best read as flagging the

6
7 necessity for caution due to the potential constitutional problems that might arise with

8
an unduly broad exercise of pendent jurisdiction," Mendoza, 301 F.3d at 1173, and
9

10 directed this Court to exercise its discretion in deciding the pendent jurisdiction
11

12 question. Thus, it is apparently still the law of this Circuit that the object of pendent
13

14 jurisdiction is "joinder of claims, not joinder of parties". Hymer, 407 F.2d at 137.

15

16

Selective raises this point to illustrate that exercise of jurisdiction over pendent

17
18 party Selective, whether thatj urisdiction is characterized as supplemental or pendent,

19
raises a "subtle and complex question with far reaching implications". Moor v.
20

21 County of Alameda, 411 U.S. 693, 715, 93 S.Ct. 1785, 35 L.Ed.2d 596 (1973).
22

23 Because Mendoza does not clearly answer this question, it is suggested that the lack
24

25 of clarity on this issue be considered as a basis for declining jurisdiction under §

26
27 1367(c)(4).

28

29

Consideration of this basis should occur in light of several other factors. First,

30 the issue need not be addressed by this Court because Plaintiffs’ entire case, including
31

32 their RICO claim, can be brought in state court. Because Count II promises
33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-9 309201b

Velikanje, Moore & Shore, P.$.
attorne?s at law 405 East Lincoln Ave.
P.O. Box 22550
Yakima, WA 98907 (509) 248-6030

1 continuing jurisdictional issues in this Court, particularly if Plaintiffs’ RICO claim

2
3 is dismissed, see 28 U.S.C. § 1367(c)(3), supplemental jurisdiction should be

4
5 declined.

6

Next, principles of comity weigh in favor of declining supplemental

7

8 jurisdiction. District courts have declined to exercise supplemental jurisdiction when
9

10 asked to predict what a state court would do with the question posed by a pendent
11

12 claim. See, e.g., St. George v. Mak, 842 F.Supp. 625, 632 (D. Conn. 1993)
13

14 ("abstaining" from the exercise of supplemental jurisdiction over state law claim

15
16 where District Court’s decision would be "at best, a prediction of subsequent state

17
18 law developments"). Here, adjudication of Count II will require this Court to guess

19 as to whether a conspiracy to violate the INA, if proved, is actionable under
2O

21 Washington law. As a matter of comity, this Court should defer on this issue by
22

23 declining jurisdiction over Count II.

24

25

Finally, fairness considerations demand that jurisdiction be declined. Plaintiffs

26
27 sued Selective in a questionably appropriate forum because Plaintiffs preferred that

28
29 forum. Selective has spent thousands of dollars defending its right to have Plaintiffs’

30
claims against it litigated in an appropriate forum. As a matter of fairness, Selective
31

32 should not be subjected to the continuingj urisdictional controversy that prosecution
33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPEEMENTAL JURISD1CTION-I 0 309201b

Velikanje, Moore & Shore, P.S.
=~t0rne~ at 405 East Lirmoln Ave.
P.O, Box 22550 Yakima, WA 98907
(,509) 248-6030

of Count II promises in this Court. Rather, Count II should be dismissed from this

suit.

4

5

III. CONCLUSION

6

7

For these reasons, Selective requests that Plaintiffs’ Motion be denied.

8
Respectfully submitted this _~ay of January, 2003.
9

10

VELIKANJE, MOORE & SHORE, P.S.

11

12

13

Attom~el~ent, Inc.

14

15

By:( Br~nda~.~

16

"~¢Sq3A No. 22315

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION-11 30920|b

Velikanje, Moore & Shore, P.$.
atl~r~,eys at 405 East Lincoln Ave.
P.O. BOX 22550 Yakima, WA 98907
(509) 248-6030

CERTIFICATE OF SERVICE

I am Lori A. Busby. I hereby certify under penalty of perjury of the laws of the 4 State of Washington that the following statements are true and correct.

5

6

I am one of the employees of the attorneys for the defendant Selective

Employment in the above-entitled matter; that I am a citizen of the United States, a

7

resident of Yakima County, Washington, over the age of twenty-one years, and not

8 a party to said action. That on the 21 st day of January, 2003, I caused to be

9 deposited in the United States mail, postage prepaid, a copy of the document to which

10 this is attached to the following:

11

12 Howard W. Foster, Esq. 13 JOHNSON & BELL, LTD. 14 Suite 4100 55 East Monroe Street 15 Chicago, IL 60603-5896

Ryan M. Edgley Edgley & Beattie, P.S. 201 East "D" Street Yakima, WA 98901

16
17 Steve W. Berman, Esq. Andrew M. Volk, Esq.
18
HAGENS, BERMAN LLP
19
1301 Fifth Avenue, Suite 2900 20 Seattle, WA 98101
21

Terry C. Schmalz, Esq. Halverson & Applegate P.O. Box 22730 Yakima, WA 98907-2715

22 Walter G. Meyer, Esq. 23 Meyer, Fluegge & Tenney, P.S. 24 230 South Second Street 25 P.O. Box 22680 26 Yakima, WA 98907

27

28

29

Dated at Yakima, Washington this ~l~U day of January, 2003.

30

31

32

A. Busby

33

34 DEFENDANT SELECTIVE EMPLOYMENT, INC’S
35 MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR COURT TO TAKE SUPPLEMENTAL JURISDICTION- 12 309201b

Velikanje, Moore & Shore, P.S. ~tt~r=tey$ at law
405 East Lincoln Ave, P.O. Box 22550
Yakima, WA 98907 (509) 248-6030

 </s> 1 Steve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639
2 Kevin P. Roddy HAGENS BEP, NIAN LLP
3 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101
4 (206) 623-7292

’JAN 2, 8 2003
~IAI~F.~ R. LAFI.$EN, CLERK .. D~J~
SpOtablE, ~ASHINGION

5 Howard W. Foster JOHNSON & BELL, LTD.
6 55 E. Monroe Street, Suite 4100 Chicago, IL 60603
7 (312)372-0770

8 Attorneys for Plaintiffs

9

10 UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF WASHINGTON

AT YAKIMA

12

13

OLIVIA MENDOZA and JUANA

14 MENDIOLA, individually and on behalf

of all others similarly situated,

No. CY-00-3024-FVS

15

Plaintiffs,

REPLY MEMORANDUM IN

16

SUPPORT OF PLAINTIFFS’

MOTION FOR THE COURT TO

17 ZIRKLE FRUIT CO., a Washington
18 corporation, MATSON FRUIT COMPANY, a Washington corporation

TAKE SUPPLEMENTAL JURISDICTION OVER SELECTIVE EMPLOYMENT AGENCY, INC.

19 and SELECTIVE EMPLOYMENT AGENC.Y, INC., a Washington

2O corporation,

21

Defendants.

22

23

I. INTRODUCTION

24

As Plaintiffs demonstrated in their Opening Brief, there is every reason for this

25 Court to take jurisdiction over the pendent party claims against Selective Employment
26

PLTFS’ REPLY MEM. FOR THE -1-

COURT TO TAKE SUPPLEMENTAL

JURISDICTION OVER SELECTIVE

1348 10 0047 MTN DO~

ORIGINAL

BOSTON Los ANGZLI~S ])HOENIX ~EATTLE

1 Agency, Inc. ("Selective"), and no reason for the Court to decline. Selective makes

2 two arguments against jurisdiction, neither of which should long detain this Court.

3

First, Selective claims that its liability under Washington law is a "novel

4 question" that would justify this Court’s refusal to take jurisdiction over Selective
5 pursuant to 28 U.S.C. § 1367(c)(1). Remarkably, Selective (i) ignores that the claim
6

7 has already survived a motion to dismiss before this Court, and (ii) does not take issue

8 with Plaintiffs’ description of the plain elements of the tort of civil conspiracy under

9 Washington law - elements that are plainly met here. Moreover, even/fthis Court
10 were to find that Selective’s liability was an open question under State law, Selective 11
is mistaken in its suggestion that would be the end of the inquiry. To the contrary, 12
even if Selective were correct, the Court must still consider "economy, convenience, 13 14 fairness and comity"- all of which counsel strongly in favor of this Court’s exercise
15 of jurisdiction here. See Executive Software N. Am. v. United States Dist. Court, 24
16 F.3d 1545, 1557 (9th Cir. 1994). Selective cannot avoid jurisdiction by improperly
17 truncating the requisite analysis pursuant to 20 U.S.C. § 1367, and distorting clear 18
Washington law concerning civil conspiracy. 19
Second, Selective ignores the Ninth Circuit’s decision in this case, and argues 20 21 that pendent party jurisdiction may still be unconstitutional. With respect, Selective
22 has lost on this issue in the Ninth Circuit, and did not seek certiorari on this issue.

23 Accordingly, it may not raise this issue yet again before this Court.

24

Finally, Selective makes the odd assertion that it is unfair to Selective to litigate

25 this case in one (rather than two) forums because its repeated challenges to
26

PLTFS’ REPLY MEM. FOR THE

-2-

COURT TO TAKE SUPPLEMENTAL

JURISDICTION OVER SELECTIVE

1~48 10 00a7 MTN.DO~

1 jurisdiction have been "expensive." Even if that were a cognizable basis for denying

2 jurisdiction (and it is not), Selective does not explain why it would be less expensive
3 for itself, its co-defendants or Plaintiffs to litigate this case in State court. 4
Plaintiffs submit that their motion should be granted so that this case may 5
proceed in an efficient and fair fashion in this Court in keeping with the purposes of 6 7 the supplemental jurisdiction statute.

8

II. SELECTIVE IMPROPERLY TRUNCATES THE REQUIRED

ANALYSIS UNDER 28 U.S.C. § 1367 9

10

Selective premises its argument on the claim that supplemental jurisdiction may

11 be denied so long as the Court finds applicable one of the bases for declining

12 supplemental jurisdiction under 28 U.S.C. § 1367(c). See Selective Opp. at 8.

13 However, the Ninth Circuit has squarely held that such a finding - while a pre-

14 requisite to a refusal to exercise supplemental jurisdiction - is insufficient, by itself, to
15 justify the rejection of supplemental jurisdiction:
16

17

By codifying preexisting applications of Gibbs in subsections (c)(I)-(3), however, it is clear that Congress

18

intended the exercise of discretion to be triggered by the

court’s identification of a factual predicate that corresponds

19

to one of the section 1367(c) categories. Once that factual

20

predicate is identified, the exercise of discretion, of course, still is informed by whether remanding the pendent state

21

claims comports with the underlying objective of"most

sensibly accomodating" the values of"economy,

22

convenience, fairness, and comity." See, e.g., Imagineering,

Inc., v. KiewitPac. Co., 976 F.2d 1303, 1309 t(h9 Cir. 1992)

23

.... Roe v. Little Co. of Mary Hosp., 800 F. Supp. 620, 626-

24

27 (N.D. Ill. 1992) ....

25 Executive Software, 24 F.3d at 1557; see also O’Connor v. State of Nevada, 27 F.3d

26 357, 363 (9th Cir. 1994) (same rule applies when opponent of supplemental

PLTFS’ REPLY MEM. FOR THE -3COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER SELECTIVE
1348.10 0047 MTN.DOC

1 jurisdiction asserts that jurisdiction should be denied because "the claim raises a novel

2 or complex issue of State law ....")

3

Accordingly, even if the Court accepts Selective’s argument that either a "novel

4 state law issue" or other "exceptional circumstances" might warrant the refusal to
5 entertain pendent party jurisdiction here, it should still retain jurisdiction for the
6

7 reasons identified in Plaintiffs’ Opening Brief. See Pltfs. Mem. at 5-8.

8

III. PLAINTIFFS’ CIVIL CONSPIRACY CLAIM RAISES NO NOVEL

ISSUES OF STATE LAW

9

10

Washington law has long-defined a civil conspiracy as "a combination of two

11 or more persons to commit a criminal or unlawful act" that causes damages as a result.

12 See, e.g., Lewis Pac. Dairymen’s Ass ’n. v. Turner, 50 Wn.2d 762, 772, 314 P.2d 625

13 (1957); Corbit v. J. I. Case Co., 70 Wn.2d 522, 528-29 (1967); Sterling Bus. Forms v.
14 Thorpe, 82 Wn. App. 446, 451,918 P.2d 531 (1996). Hence, Selective is 15
unconvincing in its assertion that it is an "open question" as to whether a criminal act 16 17 (violations of Immigration law) can constitute the "criminal or unlawful act" element
18 of the tort of civil conspiracy. See Selective Opp. at 6.1 To the contrary, "[t]o

19 constitute a conspiracy the purpose to be effected by it must be unlawful in its nature

20 or in the means to be employed for its accomplishment." Lewis Pac. Dairymen’s 21

22

1 It is of no moment that the Immigration and Nationality Act does not provide a

23

24 private right of action. Indeed, virtually no criminal statutes do - yet a criminal act

25 (when committed pursuant to a combination that causes damages) is actionable under

26 Washington’s law of civil conspiracy.

PLTFS’ REPLY MEM. FOR THE

-4-

COURT TO TAKE SUPPLEMENTAL

JURISDICTION OVER SELECTIVE

134g 10 0047 MTN

1 Ass ’n, 50 Wn.2d at 772 (emphasis added); cf Wilson v. State of Washington, 84 Wn.
2 App. 332, 351,929 P.2d 448, 459 (1996) (while "recognizing that Watson’s taping
3 and computer disk appropriation may have been illegal" acts done in achieving lawful 4
purpose of reassigning plaintiff, conspiracy claim failed because there was "no 5
evidence that anyone other than Watson was involved in these acts." 2); Harstad v. 6 7 Frol, 41 Wn. App. 294, 704 P.2d 638 (1985) (upholding conspiracy to, inter alia,

8 violate RCW 18.85, a civil statute regulating brokers).

9

The sole Washington case relied on by Selective, W.G. Platts, Inc. v. Platts, 73

10 Wn.2d 434, 438-40, 438 P.2d 867 (1968), is not on point. The Platts court dismissed
11 the plaintiff’s claim that the defendants had "conspired" to commit perjury since
12 "from earliest times the giving of false testimony has not been treated as a wrong
13
14 actionable in civil proceedings." Id. at 440. The policy reasons the Platt court

15 articulated for its decision involve the unique concerns which prevent civil suits for

16 perjury - namely, that "[a] witness is absolutely privileged to publish false and

17

18

2 Taping a phone call without consent is a criminal violation pursuant to RCW §

19 9.73.030, and punishable pursuant to RCW 9.73.080, and theft of the computer disk

20 would likely constitute theft in the third degree pursuant to RCW 9A.56.050. While a
21 civil action is available under RCW 9.73.060, no claim was made under that section in 22
Wilson. Rather, the was that the civil conspiracy to achieve the lawful purpose of 23 24 removing plaintiff’s title and reassigning him through the unlawful acts of (i) secret
25 taping, and (ii) theft of his computer disk.

26

PLTFS’ REPLY MEM. FOR THE

-5-

COURT TO TAKE SUPPLEMENTAL

JURISDICTION OVER SELECTIVE

I348.10 ~XI47 MTN.DOC

1 defamatory matter" in connection with judicial proceedings, ld. at n.3, quoting

2 RESTAa’EMENT OF Towrs, § 558 (1938).3 In contrast here, there is no similar policy in

3 favor of granting civil immunity to employers who violate the Immigration laws.
4 As Selective has not shown that Plaintiffs’ conspiracy claim raises any novel
5 questions of state law, this Court should not decline supplemental jurisdiction
6
7 pursuant to 28 U.S.C. § 1367(c)(1).

8

IV. NO "COMPELLING REASONS" EXIST FOR DECLINING

JURISDICTION PURSUANT TO 28 U.S.C. § 1367(e)(4)

9

10

Selective proffers one other proposed basis for declining to exercise

11 supplemental jurisdiction--namely, that "compelling" or "exceptional" circumstances

12 exist that would justify the pendency of virtually identical actions in State and federal

13 court. Selective Opp. at 8-t0. This argument, too, is unconvincing.

14 A.
15
16

Seleetive’s Constitutional Argument Was Rejected By The Ninth Circuit Selective is wrong to suggest that "pendent party jurisdiction may still present

17 Constitutional problems here, even after [the Ninth Circuit’s decision in] Mendoza."

18 Selective Opp. at 8. Indeed, in its prior ruling, this Court felt compelled by Ayala v.

19 United States, 550 F.2d 1196, 1199-1200 (9t~ Cir. 1977) to find that pendent party

20 jurisdiction was unconstitutional. Mendoza v. Zirkle Fruit Co., 2000 U.S. Dist. Lexis 21

22 Indeed, all the authorities relied on by the Platts court concern the policy reasons
23
24 for disallowing civil damage claims based upon allegations of perjury. See, e.g.,

25 Kantorv. Kessler, 40 A.2d 607 (N.J. 1945); Ginsburgv. Halpern, 383 Pa. 178, 180,

26 118 A.2d 201 (1955).

PLTFS’ REPLY MEM. FOR THE

-6-

COURT TO TAKE SUPPLEMENTAL

JURISDICTION OVER SELECTIVE

134~ 10 0047 MTN DOC

1 21126, at * 42 (E.D. Wash. Sept 27, 2000), rev’d, remanded, 301 F.3d 1163 (9th Cir.

2 2002). On appeal, Plaintiffs argued that pendent party jurisdiction was indeed

3 constitutional, and Selective argued to the contrary. The Ninth Circuit squarely
4 rejected "Selective Employment’s invitation to impose a per se constitutional bar on
5 supplemental jurisdiction over claims against additional parties." Mendoza v. Zirkle
6 7 Fruit Co., 301 F.3d 1163, 1173 (9th Cir. 2002).

8

Of course, federal jurisdiction must ultimately comport with Article III of the

9 Constitution - but, after Mendoza, (i) the constitutional standards are the same,
10 regardless of whether "pendent party" or "pendent claim" jurisdiction is at issue, and 11
(ii) both are govemed by the Gibbs standard. Mendoza, 301 F.3d at 1174-75. Most 12
significantly, the mere fact that Plaintiffs assert "pendent party’jurisdiction is 13 14 simply not a "compelling" or "exceptional" reason for declining jurisdiction, as

15 Selective asserts. See, e.g., Executive Software, 24 F.3d at 1558 ("[D]eclining

16 jurisdiction outside of subsection (c)(I)-(3) should be the exception, rather than the

17 rule.") After Mendoza, it cannot be said that pendent party jurisdiction is exceptional.

18 B.
19
20

Principles Of Comity Do Not Constitute Exceptional Circumstances Here In a rehash of its "novel" state law argument, Selective asserts that

21 "adjudication of Count II will require this Court to guess as to whether a conspiracy to

22 violate the INA, if proved, is actionable under Washington law." Selective Opp. at

23 10. As Plaintiffs have pointed out, however, their claim is not a novel one, and this

24 Court is well-capable of resolving the claim under clear Washington precedent.
25 Moreover, it is Selective’s approach that invokes concerns of comity: namely, given
26

PLTFS’ REPLY MEM. FOR THE -7COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER SELECTIVE
1348 10 00~7 MTN.DOC

1 that this Court will of necessity resolve the question as to whether violations of the

2 federal Immigration laws have occurred, concerns of comity are raised by the notion

3 of having a State court resolve the very same issues.

4

C. Selective Is Not Prejudiced By Trying This Case In Federal Court In

5

Yakima

6

Finally, Selective cannot prevail in. its suggestion that "exceptional" or

7 "compelling" circumstances arise from its defense of this suit in federal court in
8 Yakima. Indeed, if that were exceptional, then supplemental jurisdiction would never
9
10 be exercised. Moreover, Selective does not explain why it is somehow more

11 expensive for it to defend these claims in a single federal action (as opposed to (a)

12 defending in a state action, and (b) simultaneously providing discovery and testimony

13 in this federal action.) 14

15 V. CONCLUSION
16

17

For the reasons stated above, as well as those stated in their opening brief,

18 Plaintiffs respectfully request that this Court exercise jurisdiction over Plaintiffs’ state

19 law civil conspiracy claims against Selective.

20

DATED: January 27, 2003

21

HAGENS BERMAN LLP

22

23

24

St~ve W. Berman,-w .... No. Andrew M. Votk, WSBA No. 27639

25

1301 Fifth Avenue, Suite 2900 Seattle, WA 98101

26

(206) 623-7292

PLTFS’ REPLY MEM. FOR THE -8COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER SELECTIVE
1348. t0 0047 MTN

1

Howard W. Foster

JOHNSON & BELL, LTD.

2

55 E. Monroe St., Suite 4100

Chicago, IL 60603

3

(312) 372-0770

4

Attomeys for Plaintiffs

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLTFS’ REPLY MEM. FOR THE -9COURT TO TAKE SUPPLEMENTAL JURISDICTION OVER SELECTIVE
[ 34g 10 0047 MTN

1

DECLARATION OF SERVICE

2 I, Lynn Brammeier, declare under penalty of perjury under the laws of the State
3 of Washington that the following facts are true and correct:
4 I am a citizen of the United States, over the age of 18 years, and not a party to
5 or interested in the within-entitled cause. I am an employee of the law firm Hagens
6 Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900, Seattle,
7 Washington 98101.
8
On January 27, 2003 1 caused an original and one copy of the following 9
document to be sent via UPS overnight mail for filing with the Clerk of the District 10
Court, Eastern District of Washington, West 920 Riverside Ave., Room 840, U.S. 11

District Courthouse, Spokane, WA., 99201 on January 28, 2003: 12

I3

I also caused a copy of the following document to be served on counsel of

14 record in the manner indicated below:

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REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION

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FOR THE COURT TO TAKE SUPPLEMENTAL JURISDICTION

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OVER SELECTIVE EMPLOYMENT AGENCY, INC.; and

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DECLARATION OF SERVICE

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DECLARATION OF SERVICE

1 Brendan V. Monahan 2 VELIKANJE, MOORE & SHORE, P.S.
405 East Lincoln Ave. 3 P.O. Box 22550 4 Yakima, WA 98907
Attorneys for Defendant Selective 5 Employment Agency, Inc. 6 ( X ) U.S. MAIL
( ) FAX 7 ( ) MESSENGER 8 ( ) OVERNIGHT MAIL
9
10 Ryan M. Edgley EDLEY & BEATTIE, P.S.
11 201 East D Street 12 Yakima, WA 98901 13 Attorneys for Defendants Matson Fruit
Company
14! ( X ) U.S. MAIL
15 ( ) FAX ( ) MESSENGER
16 ( ) OVERNIGHT MAIL
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DECLARATION OF SERVICE
134~ 100013 I~C.DOC

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Terry Schmalz
Halverson & Applegate, P.S. 311 N. 4th St.
P.O. Box 22730
Yakima, WA 98901 5 Attorneys for Defendants Matson Fruit 6 Company
( X ) U.S. MAIL 7 ( ) FAX
8 ( ) MESSENGER ( ) OVERNIGHT MAIL
9

10

11 Walter G. Meyer
12 Meyer, Fluegge & Tenney, P.S.
I3 230 South Second Street P.O. Box 22680
14 Yakima, WA 98907
t5 Attorneys for Defendant Zirkle Fruit Co. ( X ) U.S. MAIL
16 ( ) FAX
17 ( ) MESSENGER ( ) OVERNIGHT MAIL
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Executed on January 27, 2003, in Seattle, Washin

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Lynn l~,r~mmeier

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26 d

DECLARATION OF SERVICE
1345. l0 0913 BSC DOC

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 </s> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
AT YAKIMA

OLIVIA MENDOZA, JUANA MENDIOLA, and VICTOR SANCHEZ, individually and on behalf of all others similarly situated,
Plaintiffs, v. ZIRKLE FRUIT COMPANY, SELECTIVE EMPLOYMENT AGENCY INC., WILLIAM ZIRKLE, GARY HUDSON and WILLIAM WANGLER,
Defendants.

No. 00 CY 3024-FVS CLASS ACTION SETTLEMENT AGREEMENT

This CLASS ACTION SETTLEMENT AGREEMENT (“Settlement Agreement”) is entered into by and between Named Plaintiffs in the Mendoza Action, for themselves and on behalf of the Settlement Class, on the one hand, and the Defendants, on the other. Italicized and capitalized terms and phrases have the meanings provided in Section 1 below.
RECITALS WHEREAS, Named Plaintiffs have commenced the Action asserting RICO claims for relief on behalf of the Settlement Class against the Defendants, all of which claims are disputed by the Defendants; WHEREAS, the Mendoza Action is pending before the Hon. Fred Van Sickle of the United States District Court for the Eastern District of Washington (the “Court”);

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WHEREAS, the Court certified the Named Plaintiffs’ claims for class treatment pursuant to Fed. R. Civ. P. 23 and appointed Johnson & Bell LLP and Hagens Berman Sobol Shapiro LLP as Class Counsel for Plaintiffs in the Mendoza Action;
WHEREAS, discovery is complete in the Mendoza Action, and the Court has ruled on Defendants Motions for Summary Judgment;
WHEREAS, the Court appointed Magistrate Judge Michael W. Leavitt to assist the Settling Parties in exploring settlement possibilities, and Judge Leavitt conducted a mediation session in which the Settling Parties participated;
WHEREAS, the Settling Parties are desirous of promptly and fully resolving and settling with finality all of the Released Claims asserted by the Named Plaintiffs, for themselves and on behalf of the Settlement Class, against the Defendants;
WHEREAS, to accomplish that goal, the Settling Parties have reached a settlement by and through their respective undersigned counsel on the terms and conditions set forth in this Settlement Agreement;
NOW, THEREFORE, the Settling Parties, in consideration of the promises, covenants and agreements herein described and for other good and valuable consideration acknowledged by each of them to be satisfactory and adequate, and intending to be legally bound, do hereby mutually agree as follows:
1. DEFINITIONS As used in this Settlement Agreement, italicized and capitalized terms and phrases not otherwise defined have the meanings provided below: 1.1 “Agreement Execution Date” shall mean: the date on which this Settlement Agreement is fully executed, as provided in Section 11.14 below.
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1.2 “Complaint” shall mean: the Second Amended Class Action Complaint filed on November 5, 2003 in the Mendoza Action.
1.3 “Claims” shall have the meaning set forth in Section 3.2. 1.4 “Class Counsel” shall mean: Hagens Berman Sobol Shapiro LLP and Johnson & Bell Ltd. 1.5 “Class Notice” shall mean: the Mailed Notice and the Publication Notice. 1.6 “Class Period” shall mean: the period from November 5, 1999 through September 8, 2004. 1.7 “Company” shall mean Zirkle Fruit Co. 1.8 “Defendants” shall mean: the following Persons named as defendants in the Complaint: Zirkle Fruit Company, Selective Employment Agency, Inc., William Zirkle, Gary Hudson and William Wangler. 1.9 “Effective Date” shall mean: the date, established pursuant to Section 8.1, on which all of the conditions to settlement set forth in Section 2 of this Settlement Agreement have been fully satisfied or waived and the Settlement shall have become Unconditional. 1.10 “RICO” shall mean: the Racketeer and Corrupt Organizations Act, as amended, 18 U.S.C. § 1961 et seq. 1.11 “Fairness Hearing” shall have the meaning set forth in Section 2.2.3. 1.12 “Final” shall mean: with respect to any judicial ruling or order, that the period for any appeals, petitions, motions for reconsideration, rehearing or certiorari or any other proceedings for review (“Review Proceeding”) has expired without the initiation of a Review Proceeding, or, if a Review Proceeding has been timely initiated, that there has occurred a full and final disposition of any such Review Proceeding without a reversal or any material
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modification, including the exhaustion of proceedings in any remand and/or subsequent appeal after remand.
1.13 “Final Order,” or Order of Final Judgment and Dismissal, shall have the meaning set forth in Section 2.2.4.
1.14 “Incentive Awards” shall mean: a requested amount of $10,000 for each Named Plaintiff in recognition of the benefits each has generated for the Settlement Class by coming forward and devoting their time and knowledge to the prosecution of the Mendoza Action. Any such award is subject to approval of the Court upon Notice to the Settlement Class, and will come out of the Settlement Amount.
1.15 “Individual Defendants” shall mean: William Zirkle, Gary Hudson and William Wangler.
1.16 “Mailed Notice” shall mean: the Notice of Settlement of Class Action, to be approved by the Court in the Preliminary Approval Order and mailed to the last known address of all Settlement Class members in Spanish and in English.
1.17 “Named Plaintiffs” shall mean: the following persons, as plaintiffs on behalf of themselves and on behalf of all members of the Settlement Class: Olivia Mendoza, Juana Mendiola and Victor Sanchez, and each of their Successors-In-Interest. Named Plaintiffs intend that all rights and obligations that are binding on Named Plaintiffs under this Settlement Agreement, including each and every covenant, agreement, and warranty, also shall be binding on all members of the Settlement Class.
1.18 “Net Settlement Amount” shall mean: the balance of the Settlement Fund after payment of (a) all costs and expenses reasonably and actually incurred in connection with providing Class Notice to the Settlement Class; (b) all taxes incurred on the Settlement Fund’s
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income as discussed in Section 7.1.1 below; (c) any award of fees and expenses to Class Counsel as discussed in Section 10.1 below; (d) any incentive awards to the Named Plaintiffs as discussed in Section 10.2 below; and (e) the costs of the administration of the Settlement.
1.19 “Order of Final Judgment and Dismissal,” or “Final Order,” shall have the meaning set forth in Section 2.2.4.
1.20 “Person” shall mean: an individual, partnership, corporation, governmental entity or any other form of entity or organization.
1.21 “Plaintiff Releasees” shall have the meaning set forth in Section 3.3 below. 1.22 “Plan of Allocation” shall mean: the plan or formula of allocation of the Net Settlement Fund, to be proposed by the Named Plaintiffs and approved by the Court upon Notice to the Settlement Class, whereby the Net Settlement Fund shall, after the Effective Date, be distributed for the benefit of the Settlement Class, as discussed in Section 8.3 below. 1.23 “Preliminary Approval Order” shall have the meaning set forth in Section 2.3.1. 1.24 “Preliminary Motion” shall have the meaning set forth in Section 2.2.1. 1.25 “Publication Notice” shall mean: the summary form of notice, to be approved by the Court. 1.26 “Released Claims” shall have the meaning set forth in Section 3.2. 1.27 “Releasees” shall mean: the Defendants; all their Affiliated Entities (Zirkle Aviation LLC; Zirkle State Investment Company LLC; Zirkle Investment LLC; Zirkle Vineyards LLC; Grand Estate Ranches LLC; Cougar Ranches LLC; Tripod Ranches LLC; Amy Chief Mattawa LLC; Ranier Fruit Co. Inc; Yobites LLC; Fuji Orchards Inc; Ann Louise Inc.); all former and current employees, coworkers, officers, shareholders, owners, operators, successors,
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assigns, attorneys and attorney firms of the Defendants and their Affiliated Entities; and all former and current spouses and marital communities of any of the foregoing.
1.28 “Releases” shall mean the releases set forth in Section 3.2. 1.29 “Settlement” shall mean: the settlement to be consummated under this Settlement Agreement pursuant to the Final Order. 1.30 “Settlement Amount” shall mean the total of $1.3 million dollars, to be deposited by the Defendants into an escrow account bearing interest for the benefit of the Settlement Class within two working days of Preliminary Approval of this Settlement as set forth in Section 7.1. The Settlement Amount is the total payment to be made by the Defendants. Once the Effective Date occurs, and the claims of the Settlement Class and the Named Plaintiffs are released in accordance with the provisions of this Settlement Agreement, under no circumstances will any of the Settlement Amount ever revert back to Defendants. 1.31 “Settlement Agreement” or “Agreement” means this Class Action Settlement Agreement. 1.32 “Settlement Class” shall mean: (a) all legally authorized Persons who worked at the Zirkle Fruit Company’s warehouse or orchards between November 5, 1999, and September 8, 2004, including warehouse workers obtained by Selective Employment Agency during this time period (excluding managers, foremen and salaried workers); and (b) as to each Person within the scope of subsection (a) of this paragraph, his, her or its beneficiaries, Representatives and Successors-In-Interest. 1.33 “Settlement Fund” shall have the meaning set forth in Section 7.1 below. 1.34 “Settlement Fund Agreement” shall mean: the agreement under which the Settlement Fund is established.
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1.35 “Settling Parties” shall mean: the Named Plaintiffs and the Defendants. 1.36 “Stipulated Dismissal” shall mean the stipulated dismissal of the Mendoza Action. 1.37 “Successor-In-Interest” shall mean: a Person’s estate, legal representatives, heirs, successors or assigns. 1.38 “Mendoza Action” shall mean the case captioned: Olivia Mendoza, Juana Mendiola and Victor Sanchez , individually and on behalf of all others similarly situated v. Zirkle Fruit Company, Selective Employment Agency, Inc., William Zirkle, Gary Hudson and William Wangler , Case No. 00 CY 3024 FVS, U.S. District Court (E.D. Wa.). 1.39 “Unconditional” shall have the meaning set forth in Section 2 below. 1.40 “Zirkle Defendants” shall mean: the Individual Defendants and Zirkle Fruit Company. 2. CONDITIONS TO FINALITY OF THE SETTLEMENT 2.1 Final and Unconditional Settlement. The Settlement provided for in this Settlement Agreement shall be final and unconditional (“Unconditional”) when each of the following conditions have been satisfied or waived: 2.2 Court Approval. The Settlement shall have been approved by the Court, as provided for in this Section 2. Class Counsel shall move the Court for a Final Order approving this Settlement Agreement and the Settlement contemplated hereunder. The Settling Parties agree to recommend to the Court that such order and judgment be entered, and to cooperate in good faith, including by taking all steps and efforts contemplated by this Settlement Agreement and any other steps or efforts which may become necessary by order of the Court (unless such order materially modifies the terms of this Settlement Agreement), to carry out this Settlement Agreement, including the following:
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2.2.1 Motion for Preliminary Approval of Settlement and of Notices. As soon as reasonably possible upon the full execution of this Settlement Agreement by the Settling Parties, and by January 15, 2006, Named Plaintiffs will file a motion (“Preliminary Motion”) with the Court for an order substantially in the form annexed hereto as Exhibit A (the “Preliminary Approval Order”);
2.2.2 Issuance of Class Notice. On the date and in the manner set by the Court in its Preliminary Approval Order, the Named Plaintiffs shall cause the Class Notice (a) transmitted in the form and manner approved by the Court to the Persons as directed by the Court in the Preliminary Approval Order, and (b) published as directed by the Court in the Preliminary Approval Order.
2.2.3 The Fairness Hearing. On or after the date set by the Court for the hearing (the “Fairness Hearing”) the Court will determine: (i) whether to enter judgment finally approving the Settlement substantially in the form attached hereto as Exhibit B (which judgment is referred to herein as the “Final Order” or the “Order of Final Judgment and Dismissal”); (ii) whether the distribution of the Net Settlement Amount as provided in the Plan of Allocation should be approved; (iii) whether and in what amount the Named Plaintiffs should receive Incentive Awards as contemplated by Section 10.2 of this Agreement; and (iv) what legal fees and expenses should be awarded to Class Counsel as contemplated by Section 10.1 of this Agreement. The Settling Parties agree to support entry of the Final Order as contemplated by this Section 2. The Settling Parties covenant and agree that they will reasonably cooperate with one another in obtaining the Final Order as contemplated hereby at the Fairness Hearing and will not do anything inconsistent with obtaining the Final Order. The Defendants agree not to take any position with respect to the matters described in clauses (ii) – (iv) of this Section 2.2.3,
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nor will the Defendants enter into any agreement that restricts the application or disposition of the Settlement Fund.
2.2.4 Finality of Order of Final Approval of Settlement. The Court shall have issued the Final Order and the Final Order shall have become Final.
2.2.5 Dismissals of Claims. The Mendoza Action and all Released Claims shall have been dismissed with prejudice as against the Defendants and their Affiliated Entities.
2.3 Funding of Settlement Fund. The Settling Defendants shall have caused the Settlement Amount to be deposited at the time prescribed by, and otherwise as provided for, in Section 7.
3. RELEASES AND COVENANT NOT TO SUE 3.1 Releases of the Releasees. Effective upon the entry of the Final Order by the Court, Named Plaintiffs, on behalf of themselves and on behalf of the Settlement Class, absolutely and unconditionally release and forever discharge the Releasees from Released Claims that Named Plaintiffs or the Settlement Class directly, indirectly, derivatively, or in any other capacity ever had, now have or hereafter may have for Released Claims arising up to the Agreement Execution Date. 3.2 Released Claims. Subject to Section 3.4 below, the Released Claims shall be: any and all claims and causes of action of any nature whatsoever (including claims and causes of action for any and all losses, damages, injuries, violations, unjust enrichment, attorneys’ fees, disgorgement of fees, litigation costs, injunction, declaration, contribution, indemnification or any other type or nature of legal or equitable relief), whether known or unknown, suspected or unsuspected, vested or contingent, in law or equity, brought by way of demand, complaint, crossclaim, counterclaim, third-party claim, administrative or arbitration proceeding, or otherwise,
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(collectively, “Claims”) which were or could have been asserted in the Complaint or that would be barred by principles of res judicata had the claims asserted in the Complaint been fully litigated and resulted in a Final judgment or order, including those claims arising up to the Agreement Execution Date.
Notwithstanding any provisions, rights and benefits conferred by any law, rule, regulation or common law doctrine in any federal, state or local jurisdiction, the Settling Parties understand and agree that the releases to be given pursuant to this Settlement Agreement shall include Released Claims that are not known or suspected to exist at the time such releases are given.
3.3 Settling Defendants’ Releases of Named Plaintiffs, the Settlement Class, Plaintiffs’ witnesses, and Plaintiffs’ Counsel. Effective upon the entry of the Final Order by the Court, the Settling Defendants absolutely and unconditionally release and forever discharge the Named Plaintiffs, Plaintiffs’ witnesses (including without limitation, Slyvia Garfias-Garcia, Melissa Merritt-Wood, Dina Guadron and Daniel Sanchez), the Settlement Class, Class Counsel and other counsel who represent members of the Settlement Class (collectively, the “Plaintiff Releasees”) from any and all Claims relating to the institution or prosecution of the Mendoza Action or the settlement of any Released Claims (the “Settling Defendants’ Released Claims”), as well as any and all Claims for contribution, for indemnification, or any other Claims relating to payment of the Class Settlement Amount by the Settling Defendants.
3.4 Persons and Claims Not Released. Nothing in this Settlement Agreement releases or shall be deemed to release any Person or Claims other than as set forth in the express terms and provisions of this Settlement Agreement.
3.5 Covenants Not to Sue. Named Plaintiffs covenant and agree on their own behalf, and on behalf of the Settlement Class: (i) not to file against any Releasee any Claim based on or
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arising from any Released Claims; and (ii) that the foregoing covenants and agreements shall be a complete defense to any such Claims against any of the respective Releasees.
4. COVENANTS The Settling Parties covenant and agree as follows: 4.1 Joint Press Release. The parties will agree on the terms of a joint press release, and no other press releases shall issue. However, the parties and their lawyers are not prohibited from commenting on the Settlement in response to media inquiries. 4.2 Taxation of Class Settlement Amount. Named Plaintiffs acknowledge on their own behalf, and on behalf of the Settlement Class, that the Releasees have no responsibility for any taxes due on funds once deposited in the Settlement Fund or that Settlement Class members or Class Counsel receive from the Settlement Fund, should any such funds be awarded in accordance with Section 10.2 hereof. Nothing herein shall constitute an admission or representation that any taxes will or will not be due on the Settlement Fund. 4.3 Identification of Settlement Class Members and Distribution of Net Settlement Fund Defendants agree to provide reasonable assistance in enabling Plaintiffs to identify Settlement Class Members. In particular and without limitation, Selective Employment Agency agrees to provide Plaintiffs with a list of the last-known address of all employees it hired for the Company during the Class Period, and payroll data for those same individuals, and the Zirkle Defendants agree to provide Class Counsel with the disc sent to the Social Security Administration on July 27, 2004. By providing such information, Defendants assume no responsibility or liability for the identification of Settlement Class Members or the distribution of the Net Settlement Fund. Defendants will take no position with respect to the distribution of the
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Net Settlement Fund. The identification of Settlement Class Members and the distribution of the Net Settlement Fund is the responsibility of the Named Plaintiffs and Class Counsel subject to the approval of the Court.
4.4 Request for Costs and Attorneys’ Fees. Class Counsel will request that their reasonable costs and attorneys’ fees be paid out of the Settlement Amount, subject to Court approval, as set fort in Section 10 herein. Defendants will take no position with respect to Class Counsel’s request for fees and costs.
5. REPRESENTATIONS AND WARRANTIES Settling Parties’ Representations and Warranties. The Settling Parties, and each of them, represent and warrant: 5.1 That they are voluntarily entering into this Settlement Agreement as a result of arm’s-length negotiations among their counsel, with the assistance and recommendation of Magistrate Judge Leavitt, that in executing this Settlement Agreement they are relying solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently selected counsel, concerning the nature, extent and duration of their rights and claims hereunder and regarding all matters which relate in any way to the subject matter hereof, and that, except as provided herein, they have not been influenced to any extent whatsoever in executing this Settlement Agreement by any representations, statements or omissions pertaining to any of the foregoing matters by any party or by any person representing any party to this Settlement Agreement. Each Settling Party assumes the risk of mistake as to facts or law; and 5.2 That they have carefully read the contents of this Settlement Agreement, and this Settlement Agreement is signed freely by each individual executing this Settlement Agreement on
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behalf of each of the Settling Parties. The Settling Parties, and each of them, further represent and warrant to each other that he, she or it has made such investigation of the facts pertaining to the Settlement, this Settlement Agreement and all of the matters pertaining thereto, as he, she or it deems necessary.
5.3 Signatories’ Representations and Warranties. Each individual executing this Settlement Agreement on behalf of any Settling Party does hereby personally represent and warrant to the other Settling Parties that he or she has the authority to execute this Settlement Agreement on behalf of, and fully bind, each principal which such individual represents or purports to represent.
6. NO ADMISSION OF LIABILITY 6.1 The Settling Parties understand and agree that this Settlement Agreement embodies a compromise settlement of disputed claims, and nothing in this Settlement Agreement, including the furnishing of consideration for this Settlement Agreement, shall be deemed to constitute any finding of wrongdoing by any of the Defendants, or give rise to any inference of wrongdoing or admission of wrongdoing or liability in this or any other proceeding. This Settlement Agreement and the payments made hereunder are made in compromise of disputed claims and are not admissions of liability of any kind, whether legal or factual. Moreover, the Settling Defendants specifically deny any such liability or wrongdoing. Neither the fact nor the terms of this Settlement Agreement shall be offered or received in evidence in any action or proceeding for any purpose, except in an action or proceeding to enforce this Settlement Agreement or arising out of or relating to the Final Order.

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7. THE SETTLEMENT FUND; DELIVERY INTO THE SETTLEMENT FUND
7.1 The Settlement Fund. Within two working days after Preliminary Approval by the Court as contemplated under Section 2, the Defendants shall cause the Settlement Amount of $1.3 million to be paid into an interest bearing escrow account maintained by Class Counsel. The resulting Settlement Fund shall be considered a common fund created as a result of the Mendoza Action.
7.1.1 The Settlement Fund shall bear interest for the benefit of the Settlement Class. The Settlement Fund will pay any federal, state or local taxes that may apply to the income of the Settlement Fund. Class Counsel shall arrange for the preparation and filing of all tax reports and tax returns required to be filed by the Settlement Fund and for the payment from the Settlement Fund of any taxes owed. All taxes on the income of the Settlement Fund and tax-related expenses incurred in connection with the taxation of the Settlement Fund shall be paid out of the Settlement Fund, shall be considered a cost of administration of the Settlement, and shall be timely paid without further order of the Court.
7.1.2 The Settling Parties acknowledge and agree that the Defendants shall have no authority, control or liability in connection with the design, management, administration, investment, maintenance or control of the Settlement Fund.
7.2 Sole Monetary Contribution. The Settlement Amount of $1.3 million shall be the full and sole monetary payments made by or on behalf of the Defendants to the Settlement Class in connection with the Settlement. Once the Effective Date has occurred and the Settlement becomes Unconditional, under no circumstances will any portion of the Settlement Amount revert back to Defendants. Except as otherwise specified in this Settlement Agreement, the
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Settling Parties shall bear their own costs and expenses (including attorneys’ fees) in connection with effectuating the Settlement and securing all necessary court orders and approvals with respect to the same.
8. EFFECTIVE DATE OF SETTLEMENT; DISTRIBUTION OF THE SETTLEMENT FUND
8.1 The Effective Date of the Settlement occurs when each and every condition in Section 2 has been satisfied. Any disputes as to whether the Effective Date has occurred shall be resolved by Magistrate Judge Leavitt upon the request of any of the Settling Parties.
8.2 Except as provided in Section 7.1 above, no distribution of any part, or all, of the Settlement Fund, shall be made from the Settlement Fund until the Effective Date has occurred.
8.3 The distribution of the Net Settlement Amount shall be subject to the Plan of Allocation, to be proposed by Class Counsel and approved by the Court. The Plan of Allocation shall be provide for the allocation of the Net Settlement Amount (which is the Settlement Amount net of attorneys’ fees and expenses and Incentive Awards awarded by the Court as contemplated in Section 10 below, net of the costs of Notice, net of any expenses of the Settlement Fund as contemplated in Section 7, and net of any other costs of the administration of the Settlement). Defendants shall take no position, and have no responsibility with respect to the Plan of Allocation, except that Defendants shall cooperate reasonably with Class Counsel in identifying Settlement Class members and providing such other information as reasonably may be required in order to administrate this Settlement.
8.4 Upon the Effective Date, Class Counsel may (a) distribute the Net Settlement Amount and (b) disburse attorneys’ fees and expenses and Named Plaintiffs’ Incentive Awards as determined by the Court.
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9. TERMINATION OF THE SETTLEMENT AGREEMENT 9.1 Termination. This Settlement Agreement may automatically terminate or be terminated by the Settling Parties, and thereupon become null and void, in the following circumstances: 9.1.1 If the Court declines to enter the Final Order, then this Settlement Agreement shall automatically terminate, and thereupon become null and void. 9.1.2 If any Settling Party concludes that the Final Order does not satisfy the terms and conditions of this Settlement Agreement in any material respect, such Settling Party may, within ten (10) days after the Court’s entry of the Final Order, give the Settling Parties written notice thereof. If within fourteen (14) days after the giving of such written notice the Settling Parties have not agreed in writing to proceed with all or part of the Settlement Agreement pursuant to the Final Order as entered by the Court, any Settling Party may submit to Magistrate Judge Leavitt the issue as to whether the Final Order in fact does not satisfy the terms and conditions of this Settlement Agreement in any material respect. Magistrate Judge Leavitt’s decision on the issue shall be binding. If Magistrate Judge Leavitt concludes that the Final Order does not satisfy the terms and conditions of this Settlement Agreement in any material respect, then the Settling Party who submitted the written notice contemplated by this Section 9.1.2 may terminate this Settlement Agreement by giving further written notice to all Settling Parties. 9.1.3 If the Final Order entered by the Court is reversed or modified in any material respect on appeal, and if within thirty-one (31) days after the date when such reversal or modification becomes Final the Settling Parties have not agreed in writing to proceed with all or part of the Settlement Agreement in light of such ruling, then this Settlement Agreement shall automatically terminate, and thereupon become null and void.
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9.2 Consequences of Termination of the Settlement Agreement. If the Settlement Agreement is terminated and rendered null and void for any reason specified in Section 9.1 above, the following shall occur:
9.2.1 Class Counsel and Defendants’ Counsel shall within thirty (30) days after the date of termination of the Settlement return to the Settling Defendants the amount contributed by them to the Settlement Fund, with all net income earned thereon, less taxes paid, if any, pursuant to Section 7.1.1.
9.2.2 The Mendoza Action shall for all purposes revert to its status as of the day immediately before the Agreement Execution Date;
9.2.3 All Releases given under or pursuant to this Settlement Agreement, and all Stipulated Dismissals, shall be null and void; none of the terms of the Settlement Agreement shall be effective or enforceable, except Section 9.2.1, Section 6, Section 7.1.1; neither the fact nor the terms of this Settlement Agreement shall be offered or received in evidence in the Mendoza Action or in any other action or proceeding for any purpose, except in an action or proceeding arising under this Settlement Agreement or arising out of or relating to the Final Order.
10. ATTORNEYS’ FEES AND EXPENSES; INCENTIVE AWARDS FOR NAMED PLAINTIFFS
10.1 Application for Attorneys’ Fees and Expenses: Pursuant to the common fund doctrine and/or any applicable statutory fee provision, Class Counsel may apply to the Court at the Fairness Hearing for an award to Class Counsel and to other counsel who represent the Settlement Class of attorneys’ fees, and for reimbursement of expenses, to be paid from the Settlement Fund.

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10.2 Application for Incentive Awards: The Named Plaintiffs may apply to the Court

for Incentive Awards, payable solely from the Settlement Fund, and shall be entitled to receive

such compensation from the Settlement Fund to the extent awarded by the Court.

10.3 Defendants Take No Position: The Defendants will take no position with respect

to the Named Plaintiffs’ application for Incentive Awards or Class Counsel’s application for an

award of fees and costs.

10.4 Disbursement of Attorneys’ Fees and Expenses and Named Plaintiffs’ Incentive

Awards: Upon the Effective Date, attorneys’ fees and expenses and Named Plaintiffs’ Incentive

Awards may be distributed.

11.

MISCELLANEOUS PROVISIONS

11.1 Governing Law. This Settlement Agreement shall be governed by the laws of the

State of Washington without giving effect to the conflict of laws or choice of law provisions

thereof, except to the extent that the law of the United States governs any matter set forth herein.

11.2 Dispute Resolution. Except as otherwise provided herein, any dispute or

controversy with respect to the rights or obligations of any Settling Party, or with respect to the

terms and conditions of this Settlement Agreement shall be submitted to Magistrate Judge Leavitt

for final and binding determination. The Court shall retain jurisdiction over all Settling Parties

to enforce the decisions of the Magistrate Judge and to resolve any dispute as to whether any

issue is subject to determination by the Magistrate Judge under the terms of this Settlement

Agreement.

11.3 Severability. The provisions of this Settlement Agreement are not severable.

11.4 Amendment. Before entry of the Final Order, the Settlement Agreement may be

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Following entry of the Final Order, the Settlement Agreement may be modified or amended only by written agreement signed on behalf of all Settling Parties, and approved by the Court.
11.5 Waiver. The provisions of this Settlement Agreement may be waived only by an instrument in writing executed by the waiving party. The waiver by any party of any breach of this Settlement Agreement shall not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Settlement Agreement.
11.6 Construction. None of the Settling Parties hereto shall be considered to be the drafter of this Settlement Agreement or any provision hereof for the purpose of any statute, case law or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof.
11.7 Further Assurances. Each of the Settling Parties agrees, without further consideration, and as part of finalizing the Settlement hereunder, that they will in good faith execute and deliver such other documents and take such other actions as may be necessary to consummate and effectuate the subject matter and purpose of this Settlement Agreement.
11.8 Notices. Any notice, demand or other communication under this Settlement Agreement (other than the Class Notice, or other notices given at the direction of the Court) shall be in writing and shall be deemed duly given upon receipt if it is addressed to each of the intended recipients as set forth below and personally delivered, sent by registered or certified mail (postage prepaid), sent by confirmed facsimile, or delivered by reputable express overnight courier:

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IF TO NAMED PLAINTIFFS:
Howard Foster JOHNSON & BELL, LTD. 33 W. Monroe St., Suite 2700 Chicago, IL 60603 Phone: (312) 372-0770 Fax: (312) 372-9818 Email: Fosterh@jbltd.com
Andrew M. Volk HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 Email: Andrew@hbsslaw.com
IF TO ZIRKLE DEFENDANTS:
Diehl R. Rettig RETTIG OSBORNE FORGETTE, LLP 6725 W. Clearwater Ave. Kennewick, WA 99336 Phone: (509) 783-6154 Fax: (509) 783-0858 Email: diehl.rettig@rettiglaw.com
Mark Watson Meyer, Fleuegge & Tenney 230 South Second Street Yakima, WA 98907-2680 Phone: (509) 575-8500 Fax (509) 575-4676 Email: watson@mftlaw.com
Ryan M. Edgley Edgley & Beattie, P.S. 201 East "D" Street Yakima, WA 98901 Phone: (509) 248-1740 Fax (509) 248-1573 Email: edgleyr@hscis.net
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001348-10 85091 V1

IF TO DEFENDANT SELECTIVE EMPLOYMENT AGENCY, INC.

Mr. Brendan V. Monahan VELIKANJE, MOORE & SHORE, P.S. 405 East Lincoln Avenue P.O. Box 22550 Yakima, WA 98907 Phone: (509) 248-6030 Fax (509) 453-6880

11.9 Any Settling Party may change the address at which it is to receive notice by

written notice delivered to the other Settling Parties in the manner described above.

11.10 Entire Agreement. This Settlement Agreement contains the entire agreement

among the Settling Parties relating to this Settlement. It specifically supersedes any settlement

terms or settlement agreements relating to the Settling Defendants that were previously agreed

upon orally or in writing by any of the Settling Parties.

11.12 Counterparts. This Settlement Agreement may be executed by exchange of faxed

executed signature pages, and any signature transmitted by facsimile for the purpose of executing

this Settlement Agreement shall be deemed an original signature for purposes of this Settlement

Agreement. This Settlement Agreement may be executed in counterparts, each of which shall be

deemed to be an original, but all of which, taken together, shall constitute one and the same

instrument.

11.13 Binding Effect. This Settlement Agreement binds and inures to the benefit of the

parties hereto, their assigns, heirs, administrators, executors and successors.

11.14 Agreement Execution Date. The date on which the final signature is affixed

below shall be the Agreement Execution Date.

IN WITNESS WHEREOF, the Settling Parties have executed this Settlement Agreement

on the dates set forth below.

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001348-10 85091 V1

EXHIBITS TO THE SETTLEMENT AGREEMENT
Exhibits
A. [Proposed] Order Preliminarily Approving Partial Settlement, Approving Form and Manner of Notice, and Scheduling Hearing on Fairness of Settlement Pursuant To Federal Rule Of Civil Procedure 23(E)
B. [Proposed] Order of Final Judgment and Dismissal

001348-10 85091 V1

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 </s> Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
222 F.R.D. 439 United States District Court,
E.D. Washington.
Olivia MENDOZA, et al., Plaintiffs, v.
ZIRKLE FRUIT CO., et al., Defendants.
No. CY–00–3024–FVS. | July 13, 2004.
Attorneys and Law Firms
*440 Steve W. Berman, Andrew M. Volk, Hagens Berman LLP, Seattle, WA, Michael V. Connell, Smart Law Offices PS, Yakima, WA, Howard W. Foster, Johnson & Bell Ltd., Chicago, IL, for Plaintiffs.
Walter G. Meyer, Jr., Mark David Watson, Meyer, Fluegge & Tenney, Ryan M. Edgley, Paul Hamilton Beattie, Edgley & Beattie PS, Lawrence Edwin Martin, Terrence Colin Schmalz, Halverson & Applegate PS, Brendan Victor Monahan, Velikanje, Moore & Shore PS, Yakima, WA, Alexander A. Baehr, Holland & Knight LLP, James Alexander Smith, Jr., Smith & Hennessey PLLC, Marvin Lee Gray, Jr., Hall Baetz, *441 D. Bruce Lamka,Darya V. Swingle, Davis Wright Tremaine, Seattle, WA, for Defendants.
Opinion
ORDER
VAN SICKLE, Chief Judge.
THIS MATTER comes before the Court based upon the plaintiffs’ motion for class certification. For the reasons set forth below, the motion is granted in part and denied. in part.
BACKGROUND For many companies located in the central part of the State of Washington, the need for workers varies dramatically from season to season. Selective Employment Agency, Inc., is in the business of satisfying the need for seasonal workers. As part of this business, Selective solicits and screens job applicants. If hired, applicants become Selective’s employees. Selective then sends them to a client who needs short-term workers. While Selective’s employees work at the client’s place of business, they remain employees of Selective.

Zirkle Fruit Company was one of Selective’s clients. Zirkle paid Selective to provide persons to work in its warehouse. The persons whom Selective sent to Zirkle’s warehouse performed a variety of tasks. The tasks they performed included sorting, bagging, packing, and shipping of fruit.
Plaintiffs Olivia Mendoza and Juana Mendiola were among the persons hired by Selective and sent to work at Zirkle’s warehouse. They worked there, as employees of Selective, from September of 1999 until February of 2000. They were not the only persons hired by Selective and assigned to work at Zirkle’s warehouse. As of November of 1999, there were approximately 300 others. This number declined rapidly. By September of 2000, fewer than 20 of Selective’s employees were working in Zirkle’s warehouse. By January of 2001, there were just three. The last one left Zirkle’s warehouse on May 28, 2001. The preceding statistics illustrate an important point. Selective did not fill all of Zirkle’s labor needs. To the contrary, most of the persons who worked in Zirkle’s warehouse were hired directly by Zirkle.
Although Selective provides workers for many types of jobs, Selective does not provide orchard workers. Businesses such as Zirkle Fruit Company and Matson Fruit Company hire their own orchard workers.
Zirkle operates orchards in a number of distinct geographic regions of central Washington. According to Zirkle, the manager of each orchard either hires the workers he needs or delegates this responsibility to his subordinates. One of Zirkle’s orchards is located in a region that is referred to as “the Royal Slope.” As of November of 1999, plaintiff Victor Sanchez was working in Zirkle’s “Royal Slope” orchard. He continued working in this orchard until November of 2000, when he quit. Early in 2001, he moved to California.
The plaintiffs allege William Zirkle (chief executive officer), William Wangler (chief financial officer), and Gary Hudson (human resources manager) conspired to employ persons who are not authorized to work in the United States in an effort to limit the wages Zirkle Fruit Company must pay to those of its employees who are authorized to work in the United States. As part of this effort, Mr. Hudson allegedly arranged for Selective Employment Agency, Inc., to hire illegal aliens to work in Zirkle’s packinghouse (i.e., warehouse).
Like Zirkle, Matson Fruit Company operates both orchards and a warehouse in central Washington. Of the three plaintiffs, only Ms. Mendoza was employed by Matson. She worked in Matson’s warehouse as a fruit-packer from about September 12, 2000, until about September 30, 2000. The plaintiffs allege Roderick Matson (chief executive officer) and Darryl Matson
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Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
(human resources manager) conspired to employ persons who are not authorized to work in the United States in an effort to limit the wages Matson Fruit Company must pay to those of its employees who are authorized to work in the United States.
The plaintiffs have filed an action seeking relief from a number of defendants under both the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968, and the common law of the *442 State of Washington. They move the Court to certify a class consisting of
all person legally authorized to work in the United States who have been employed by Matson Fruit Co. and/or Zirkle Fruit Co., either directly or through Defendant Selective Employment Agency (“Selective”), for employment in their packinghouses as hourly wage earners or in their fruit orchards as either hourly wage, or piece-rate, workers from November 5, 1999, to the present.
(Plaintiffs’ Motion for Class Certification at 1–2.)
IDENTIFYING CLASS MEMBERS [1] Implicit in Federal Rule of Civil Procedure 23 is the requirement that a class exists. Equal Employment Opportunity Comm’n v. General Telephone Co., 599 F.2d 322, 327 (9th Cir.1979) (citing 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, §§ 1760, 1761 (1972)). Zirkle claims the plaintiffs cannot satisfy this requirement because they lack a reliable means to determine which employees were authorized to work in the United States and which were not. Zirkle says the method proposed by the plaintiffs for determining a worker’s status—i.e., by asking the government to check either his I–9 form or his social security card—is unreliable. According to Zirkle, both the Bureau of Immigration and Customs Enforcement and the Social Security Administration have taken the position that the presence or absence of a match is inconclusive. Without a reliable means to distinguish between authorized and unauthorized workers, says Zirkle, it is impossible to notify potential members of the class.
The plaintiffs disagree. Insofar as the identification of class members is concerned, they say Zirkle’s position is undercut by its business practices. According to the plaintiffs, Zirkle routinely terminates employees whose documentation does not match the information held by a government agency. If, say the plaintiffs, the absence of a match is sufficiently reliable to make important

employment decisions, it is sufficiently reliable to identify class members. Insofar as notice is concerned, the plaintiffs recognize that a class which is proposed under Rule 23(b)(3)—as this one is—must be sufficiently well defined so that the Court may provide “individual notice to all members who can be identified through reasonable effort.” Fed.R.Civ.P. 23(c)(2). Here, say the plaintiffs, adequate notice of the proposed class can be provided to potential members by mailing letters in Spanish and English to the last known address of each of the defendants’ employees and by posting notice in the defendants’ workplaces.
Neither of Zirkle’s objections precludes certification. A class does not have to be defined with precision at the outset. 7A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1760, at 117 (2d ed.1986). According to Professor Wright and his colleagues, the test is whether the description of the class is “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” Id. at 121. Here, a class of authorized workers clearly exists. Determining the identity of its members and providing them with adequate notice will not be easy. However, the plaintiffs have provided an adequate plan for accomplishing these tasks.
RULE 23
The plaintiffs bear the burden of persuasion. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). Initially, they must satisfy the requirements imposed by Rule 23(a). In order to do so, they must demonstrate that (1) the class is so numerous that joinder of all members is impracticable (“numerosity”), (2) there are questions of law or fact common to the class (“commonality”), (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”), and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy of representation”). See, e.g., Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). The second, third, and fourth requirements tend to merge together. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 2251 n. 20, 138 L.Ed.2d 689 (1997) (hereinafter “Amchem ”). Taken together, these three requirements “ ‘serve as guideposts for determining whether *443 ... maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’ ” Id. (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982)). If the plaintiffs satisfy the four initial prerequisites imposed by Rule 23(a), the focus shifts to Rule 23(b). In this instance, the plaintiffs seek to maintain a class action under subsection (b)(3). A class action may
2

Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
be maintained under Rule 23(b)(3) if questions of law and fact common to the members of the class predominate over any questions affecting only individual members (“predominance”), and the class-action mechanism is superior to the other available methods for the fair and efficient adjudication of the controversy (“superiority”). See Amchem Prods., 521 U.S. at 615, 117 S.Ct. at 2246. Rule 23(b)(3) contains a nonexhaustive list of factors that profitably may be considered in determining whether the plaintiffs have demonstrated predominance and superiority:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Amchem, 521 U.S. at 615–16, 117 S.Ct. at 2246 (quoting Fed.R.Civ.P. 23(b)(3)).
PLAINTIFFS’ PROPOSED CLASS The class suggested by the plaintiffs cannot be certified under Rule 23. To begin with, it combines the alleged victims of conspiracies that have little in common. Fed.R.Civ.P. 23(a)(2). As noted above, one conspiracy allegedly involved William Zirkle, William Wangler, and Gary Hudson. A second conspiracy allegedly involved Zirkle Fruit Company and Selective Employment Agency. A third conspiracy allegedly involved Roderick Matson and Daryl Matson. Arguably, the first two conspiracies present common questions of law and fact. For example, did William Zirkle, William Wangler, and Gary Hudson conspire with each other and with Selective Employment Agency to hire persons who were not authorized to work in the United States? However, the first and second conspiracies have no meaningful connection with the third. The most one cay say is that the first and second conspiracies occurred during the same period of time as the third conspiracy; that the conspirators had a broadly similar objective (i.e., to depress wages); and that the conspiracies existed in roughly the same geographical area. This is not enough to satisfy the requirement of commonality given the absence of an allegation (much less evidence) that the Matsons conspired with either the Zirkle defendants or Selective Employment Agency.
Another obstacle to certification is that, insofar as Matson

Fruit Company is concerned, the named plaintiffs do not satisfy the requirement of typicality. Fed.R.Civ.P. 23(a)(3). Neither Juana Mendiola nor Victor Sanchez worked for Matson. Only Olivia Mendoza worked for Matson, and her employment was limited to an eighteen-day stint in its warehouse. She never worked in any of its orchards. In view of the plaintiffs’ minimal contact with Matson, they are not in a position to represent the interests of Matson’s workforce. See, e.g., Staton, 327 F.3d at 957; Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). Recognizing as much, the plaintiffs have submitted affidavits from Bertha Aguirre and Augustin Aguirre. Although both claim to have worked for Matson Fruit Company during the class period, neither is a party to this action.
A third problem is predominance. Even if the original class satisfies the requirements imposed by Rule 23(a), the plaintiffs still must demonstrate that questions of law and fact common to the members of the proposed class predominate over questions affecting only individual members. Fed.R.Civ.P. 23(b)(3). Perhaps this can be said of the group(s) of workers allegedly victimized by the first two conspiracies. Perhaps, too, this can be said of the separate group of workers *444 allegedly victimized by the third conspiracy. However, the single class formed by the combination of these groups is insufficiently cohesive to warrant adjudication by representation. Cf. Amchem, 521 U.S. at 622–24, 117 S.Ct. at 2249–50 (discussing predominance).
Given the preceding considerations, the Court asked the parties to submit supplemental memoranda concerning two issues. The first is whether the defendants object to adding the Aguirres as plaintiffs. The second is whether the parties object to dividing the single class proposed by the plaintiffs into three subclasses: Subclass (A) would consist of persons who worked in Zirkle Fruit Company’s warehouse from November 5, 1999, to the present whether Zirkle hired them directly or obtained them indirectly through Selective Employment Agency. Subclass (B) would consist of persons who worked in Zirkle Fruit Company’s orchards from November 5, 1999, to the present. Subclass (C) would consist of persons who worked in Matson Fruit Company’s orchards from November 5, 1999, to the present. The parties have submitted supplemental memoranda concerning both issues.
REQUEST TO ADD NEW PARTIES [2] It is necessary to review some of the history of this case in order to determine whether the Aguirres should be added as new plaintiffs. A scheduling order was entered on December 10, 2002. On June 3, 2003, the plaintiffs moved to amend their complaint. The defendants argued the plaintiffs’ request was untimely. This argument had
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Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
considerable force. Nevertheless, after weighing the competing considerations, the Court found good cause for granting relief under Rule 16(b). As a result, the Court vacated a number of deadlines in the 2002 scheduling order and directed the parties to submit a new scheduling certificate. The plaintiffs said “they might need to add additional individuals involved with hiring at Zirkle Fruit Company and Matson Fruit Company after discovery has progressed, and believe it is appropriate to add new individual defendants after the class certification process is complete [.]” (Joint Scheduling Certificate of November 12, 2003, at 3.) However, the plaintiffs did not mention a need to add more plaintiffs. On December 2, 2003, a new Scheduling Conference Order was entered. It stated, in part, that the deadline for amending pleadings had expired. (Scheduling Conference Order of December 2, 2003, at 1.) Thus, the Aguirres can be added as plaintiffs only if good cause exists for the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir.1992). In that regard, the record reflects that the discovery process had been underway for over 10 months when the current scheduling order was discussed and entered. At the time, the plaintiffs did not mention the need to add new plaintiffs. By the time the plaintiffs submitted affidavits from the Aguirres, the discovery process had been underway for over 15 months. The plaintiffs have made no effort to justify the delay. Given these circumstances, the plaintiffs have failed to establish good cause to modify the scheduling order of December 2, 2003. The Aguirres will not be added as plaintiffs.
SUBCLASS (A) Proposed Subclass (A) consists of persons who worked in Zirkle Fruit Company’s warehouse from November 5, 1999, to the present whether Zirkle hired them directly or obtained them indirectly through Selective Employment Agency.
A. Rule 23(a)
1. Numerosity The plaintiffs must demonstrate “the class is so numerous that joinder of all members is impracticable[.]” Fed.R.Civ.P. 23(a)(1). This requirement is not disputed.
2. Commonality [3] The plaintiffs allege the defendants knowingly hired illegal workers because illegal workers are less willing to assert their employment-related rights. As Selective points out, both legal and illegal workers are protected equally against employment discrimination. According to Selective, the crucial economic distinction in the agricultural marketplace is between long-term and

short-term employees. In Selective’s opinion, the *445 latter are much more vulnerable economically than the former. This is because short-term employees, unlike long-term employees, rarely qualify to vote in union elections. Most of the persons whom Selective hires and furnishes to its clients are short-term employees whereas most of the persons whom Zirkle hires to work in its warehouse are long-term employees. Based upon this distinction, Selective argues that its employees have little in common economically with Zirkle’s employees. The gap between the two groups is widened, says Selective, by the fact its employees have the ability to move from client to another client if it makes sense to do so. Zirkle’s employees, by contrast, have a harder time finding a new employer.
These arguments are insufficient to defeat a finding of commonality. While Selective may be correct in asserting there are material economic differences between short-term and long-term employees, Rule 23(a)(2) does not require the plaintiffs to demonstrate that all questions of law and fact are common to the class. Hanlon, 150 F.3d at 1019. “The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Id. Here, commonality within Subclass (A) is established by two factors. First, Selective is alleged to have conspired with one or more of the individual Zirkle defendants to hire illegal workers. Second, Zirkle Fruit Company set the wages for both the workers whom it hired and the workers whom Selective hired. Given the allegation of an agreement between both employers, and the allegation that one employer established the wages for all warehouse workers, there are questions of law and fact that are common to the members of Subclass (A).
3. Typicality [4] The plaintiffs must prove the claims or defenses of the representative parties are typical of the claims or defenses of the class. Fed.R.Civ.P. 23(a)(3). As the Ninth Circuit has observed, “[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. The defendants challenge the existence of typicality. For one thing, they claim the named plaintiffs will be preoccupied with defenses that are unique to them. For another thing, they submit the plaintiffs must prove each worker’s motivation for accepting employment at reduced wages. This issue cannot be resolved without fact-specific inquiries into each employee’s subjective motivation.
(a) unique defenses
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Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
The defendants allege that, although the plaintiffs knew Zirkle and Matson were employing illegal workers, they failed to report the violations to an appropriate authority. As a result, the defendants asserted a number of affirmative defenses. These included contributory fault, contributory negligence, waiver, consent, acquiescence, ratification, estoppel, in pari delicto, unclean hands, equal involvement, payment, failure to mitigate, and/or assumption of the risk. The existence of these defenses, say the defendants, will prevent the plaintiffs from adequately representing the interests of other class members. This argument can have force in certain circumstances. See Hanon, 976 F.2d at 508. (“a named plaintiff’s motion for class certification should not be granted if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it’ ” (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991))). Here, however, the defenses have been stricken, for the most part, by the order of February 23, 2004. Consequently, there no longer is any need to worry about the disruptive presence of unique defenses.
(b) worker motivation As part of their request for damages, the plaintiffs make the following allegation, “The legal members of the workforce accept the low wages with the knowledge that if they seek higher wages they will be fired and replaced with illegal workers.” (Second Amended Complaint, ¶ 60, p. 16.) Zirkle assumes this allegation is one of the elements *446 of the plaintiffs’ case and will require inquiry into each legal worker’s subjective motivation. In an effort to establish just how idiosyncratic this inquiry will be, Zirkle has listed approximately 15 factors that can affect a worker’s decision to accept a particular job. (Zirkle Defendants’ Memorandum in Opposition to Motion for Class Certification at 22–23.) According to Zirkle, the plaintiffs have failed to demonstrate that the circumstances which led them to accept work at allegedly reduced wages are typical of other class members. This contention is unpersuasive. Initially, it is far from clear the plaintiffs will be required to identify the circumstances that motivated specific class members to accept the particular jobs they ultimately accepted. However, even if Zirkle is correct, there is a second problem. Variations among individual workers will be most relevant if, and when, a jury is asked to calculate damages. The fact that damage claims will vary among workers does not defeat typicality. As a general rule, typicality may exist even though “there is a disparity in the damages claimed by the representative parties and the other members of the class.” 7A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1764, at 235–36, 241 (1986).

4. Adequacy of Representation [5] The plaintiffs must demonstrate that they will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). Adequate representation is essential because absent class members will be bound by any judgment entered in this action if a class is certified. Hanlon, 150 F.3d at 1020. Representation is deemed adequate if the named plaintiffs and their attorneys do not have conflicts with absent members and they will prosecute this action vigorously on behalf of the entire class. Id. Here, the defendants challenge the adequacy of plaintiffs’ representation on several grounds.
(a) affirmative defenses Zirkle and Selective Employment claim the plaintiffs’ failed to protect their own interests while working for the defendants by failing to object to the presence of unauthorized workers in the defendants’ respective work-forces. The plaintiffs’ failure to speak out, say Zirkle and Selective, means they cannot be trusted to represent the interests of absent class members. This contention is unpersuasive. Earlier, the Court ruled that the plaintiffs’ failure to object to the presence of unauthorized workers can be asserted as a defense only in limited circumstances. Whether the defendants will be able to qualify for an instruction on any affirmative defense remains to be seen. Given this ruling, the plaintiffs’ failure to object to the presence of unauthorized workers cannot be viewed as culpable or irresponsible behavior.
(b) employee opposition Zirkle asserts that some of its current employees oppose the plaintiffs’ lawsuit. According to Zirkle, this indicates a conflict between the named plaintiffs and absent class members. While some current may oppose the plaintiffs’ lawsuit, a disagreement of this sort is insufficient to defeat certification. Courts generally have “declined to consider conflicts, particularly as they regard damages, sufficient to defeat class action status at the outset unless the conflict is apparent, imminent, and on an issue at the very heart of the suit.” Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976).
(c) plaintiffs’ participation Zirkle argues the plaintiffs have failed to participate actively in, and demonstrate an adequate knowledge of, this case. This argument is rebutted by the fact each
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Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
plaintiff has submitted to a deposition and each has a working knowledge of the case.
B. Rule 23(b)(3)
1. Predominance [6] “The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Id. at 623, 117 S.Ct. at 2249. See also Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir.), cert. denied, *447 534 U.S. 973, 122 S.Ct. 395, 151 L.Ed.2d 299 (2001). Here, the plaintiffs list several questions that they argue are common to all of the members of the proposed class, viz., whether the defendants conspired to violate the Immigration and Naturalization Act and Washington common law; whether the plaintiffs’ wages were depressed as a result of the conspiracy; and the extent of damages. The defendants do not deny that common issues exist. However, they submit that individual issues predominate over common issues. According to them, plaintiff-by-plaintiff fact-finding will be required to determine both the applicability of affirmative defenses and the existence of damages.
(a) affirmative defenses The defendants’ arguments regarding affirmative defenses have lost most of their force in view of the Court’s order of February 23, 2004. Since few of the defendants’ affirmative defenses remain, and since it is unclear whether the defendants will be able to qualify for jury instructions with respect to the remaining defenses, there is no reason to believe the existence of affirmative defenses will undermine the cohesiveness of the proposed class.
(b) damage calculations The defendants assert that the impact of the alleged hiring scheme upon the plaintiffs’ wages will vary dramatically from employee to employee based upon a number of factors. These include the site at which the employee worked; the type of job he performed; and whether he was paid by the hour or by his productivity. These circumstances, say the defendants, will destroy the cohesiveness of the class. As authority, the defendants cite a number of cases, including Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998).
In Allison, the plaintiffs brought a Title VII action alleging discriminatory employment practices at a large manufacturing complex. They sought certification of a class that could have included over 1000 members. The potential members were “current and former employees

and unsuccessful applicants for employment in ‘hourly’ positions at Citgo’s Lake Charles complex. They [were] spread across two separate facilities. They [were] represented by six different unions, [came] from five different skill groups, and work[ed] in seven different functional areas at the complex.” Id. at 407. The district judge denied certification, and the Fifth Circuit ruled that his decision was not an abuse of discretion. In discussing the issue of predominance, the Fifth Circuit placed great weight on the plaintiffs’ request for compensatory and punitive damages:
[These claims] focus almost entirely on facts and issues specific to individuals rather than the class as a whole: what kind of discrimination was each plaintiff subjected to; how did it affect each plaintiff emotionally and physically, at work and at home; what medical treatment did each plaintiff receive and at what expense; and so on and so on. Under such circumstances, an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.
151 F.3d at 419 (internal punctuation and citation omitted).
Contrary to the defendants, the Fifth Circuit’s discussion of predominance provides little guidance here. If, in this case, the plaintiffs are able to prove the existence of an illegal hiring scheme, the jury will have to determine whether the scheme had an impact upon the wage rates established by the defendants. No doubt, wage rates will vary from job category to job category. It would not be surprising to learn, for example, that fork lift drivers are paid at a different rate than pickers. However, the analysis of wage rates will not require litigation of the individual circumstances that troubled the Fifth Circuit (e.g., the emotional impact of an act of discrimination upon a particular class member). Instead, the jury will be asked to determine the rates of compensation that various jobs would have merited but for the alleged hiring scheme. Once the jury establishes the rates that should have been paid (if, in fact, the jury finds for plaintiffs), the jury can apply those rates to particular employees. This should not be an insurmountable task if, as seems to be the case, the defendants have records of the hours worked by their employees and the rates at which the employees were paid. Thus, the need for *448 individual damage calculations does not preclude a finding of predominance. See Blackie, 524 F.2d at 905 (“The amount of damages is invariably an individual question and does not defeat class action treatment.1”). See also Williams v. Sinclair, 529
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Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)

F.2d 1383, 1388 (9th Cir.1975) (citing Blackie ), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976).

1

Blackie continues to be cited for this proposition.

Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32,

40 (1st Cir.2003).

(c) nature of plaintiffs’ claims The claims being asserted by the plaintiffs are not personal-injury claims. This is a significant consideration. In Amchem, the Supreme Court explained that in personal injury cases, “Each plaintiff ... has a significant interest in individually controlling the prosecution of [his case]”; each “ha [s] a substantial stake in making individual decisions on whether and when to settle.” 521 U.S. at 616, 117 S.Ct. at 2246 (quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 633 (3d Cir.1996)). The claims in this case are much different than the asbestos-related claims at issue in Amchem. Rather than being a personal-injury case, this is a civil RICO case. As such, it is roughly analogous to an antitrust case. Cf. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 267–69, 112 S.Ct. 1311, 1317–18, 117 L.Ed.2d 532 (1992) (civil RICO was modeled after the Clayton Act). The Supreme Court mentioned this distinction in Amchem. “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws.” 521 U.S. at 625, 117 S.Ct. at 2250 (citing Comm. Note, Fed.R.Civ.P. 23).
2. Superiority [7] “Rule 23(b)(3) also requires that class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ ” Hanlon, 150 F.3d at 1023. The inquiry required by this provision involves a determination with respect to “whether the objectives of the particular class action procedure will be achieved in the particular case.” Id. (citation omitted). “This determination,” said the Ninth Circuit, “necessarily involves a comparative evaluation of alternative mechanisms of dispute resolution.” Id.
The defendants suggest that, instead of certifying a class action, it would be better to have individual plaintiffs bring actions of their own. The defendants give at least four reasons for suggesting this alternative. First, only a few workers have indicated any interest in the litigation. Second, prevailing workers are entitled to statutory damages and attorneys fees. Third, the plaintiffs have yet to provide a reliable means for identifying members of the proposed class, which could include as many as 20,000

members. Fourth, the existence of bifurcated proceedings increases the risk that the “damages” jury will pass on issues decided by the “liability” jury, thereby injecting Seventh Amendment problems into the case. See Allison, 151 F.3d at 419–20.
The plaintiffs argue that the defendants’ analysis of superiority is inconsistent with the criteria set forth in Rule 23(b)(3). First, absent class members have little incentive to bring actions of their own. Few understand English very well; fewer still understand the American legal system. Second, the amount that could be recovered by any particular employee in this case is comparatively small—too small to justify individual actions by individual employees. Third, even if individual employees could find attorneys who were willing to represent them, little would be accomplished by repeatedly litigating the same disputes concerning discovery, liability, and causation. Finally, the threat of a Seventh Amendment problem is remote. Not only have the defendants agreed to bifurcation of liability and damages, but they have failed to demonstrate that issues of liability, causation, and damages are so interwoven that all issues must be presented to a single jury. Cf. Arthur Young & Co. v. U.S. Dist. Court, 549 F.2d 686, 696–97 (9th Cir.1977) (discussing bifurcation and the Seventh Amendment in the context of a fraud action).
*449 On balance, the considerations cited by the plaintiffs are far more weighty than those cited by the defendants. Absent class certification, it is unlikely that any plaintiff will have an opportunity to challenge the hiring scheme that the defendants allegedly engaged in. Preventing such outcomes is one of the reasons Rule 23(b)(3) was adopted. Amchem, 521 U.S. at 617, 117 S.Ct. at 2246 (“the Advisory Committee had dominantly in mind vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all’ ” (quoting Kaplan, Prefatory Note 497)).
SUBCLASS (B) [8] Proposed Subclass (B) consists of persons who worked in Zirkle Fruit Company’s orchards from November 5, 1999, to the present. Zirkle objects to certification of this class. For the most part, its objections parallel those discussed earlier. However, two objections require separate analysis. To begin with, Zirkle notes that Victor Sanchez is the only plaintiff who worked in its orchards. Furthermore, during the class period, he worked exclusively in an orchard that is located within a region known as the Royal Slope. At no time during the class period did he work in orchards that Zirkle operates in other areas of eastern Washington. Since Mr. Sanchez’s tenure was limited to the Royal Slope orchard, Zirkle argues that Subclass (B) should be limited to persons who worked in that orchard during the class period. This is
7

Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (2004)
appropriate, says Zirkle because each orchard is managed separately, each has a separate hiring process, and the wages paid to workers vary from orchard to orchard. As authority, Zirkle cites Doninger v. Pac. Northwest Bell, 564 F.2d 1304 (9th Cir.1977). In that case, plaintiffs sought certification of an employment discrimination action against Pacific Northwest Bell (“PNB”). One of the issues was whether the plaintiffs had demonstrated commonality. As the Ninth Circuit observed, PNB was divided into six geographical areas, called “establishments.” Each establish had its own affirmative action plan, although each plan was patterned after a general corporate plan. Id. at 1310. The Ninth Circuit inferred from these circumstances that different employment practices existed in each of PNB’s establishments. Id. at 1311. Given the existence of different employment practices, and given the fact that the plaintiffs worked in just three of PNB’s six establishments, the circuit court concluded that the plaintiffs had failed to demonstrate that proposed class presented common questions of law or fact. Id.
This case is similar to Doninger in that Zirkle Fruit Company conducts business in a number of locations and employment practices vary somewhat from location to location. However, this case differs in important respect. The plaintiffs allege that Zirkle’s core leadership engaged in a conspiracy to hire employees whom they knew were not authorized to work in the United States. While this illicit agreement may have been implemented somewhat differently in each of Zirkle’s orchards, the plaintiffs allege that the manager of each orchard was implementing a common scheme. The existence of a common scheme is sufficient to distinguish this case from Doninger and satisfy the requirement of commonality.
Zirkle has a second objection. In order to operate its orchards, Zirkle must hire workers to perform a wide variety of tasks. These include, but are not limited to, planting fruit trees, irrigating, fertilizing, pruning, spraying and, when harvest time arrives, picking the fruit. Mr. Sanchez performed several, but not all, of those tasks. Given the different skills that are needed for various jobs, and the different wages that are paid for various jobs, Zirkle denies that his claim is typical of all of its orchard workers. This contention is unpersuasive in light of Staton v. Boeing; supra. In that case, the Ninth Circuit upheld a

district judge’s findings with respect to commonality and typicality despite the fact the proposed class included a wide range of positions within the Boeing Company. In doing so, the circuit court agreed with the district judge’s observation that the proposed class, although large, was “united by a complex of company-wide discriminatory practices.” 327 F.3d at 953. This case is very similar. Here, all members of the proposed class are united in alleging their pay was depressed by unlawful schemes to hire unauthorized workers. Consequently, Mr. *450 Sanchez’s experiences at Zirkle and his claim against Zirkle are sufficiently similar to other orchard workers to demonstrate the overlapping requirements of commonality and typicality.
SUBCLASS (C) [9] Without Mr. Aguirre, the plaintiffs cannot satisfy the overlapping requirements of either Rule 23(a) (commonality and typicality) or Rule 23(b)(3) (predominance). Thus, for the reasons indicated above, the Court declines to certify a class action against Matson Fruit Company.
IT IS HEREBY ORDERED:
The plaintiffs’ motion for class certification (Ct.Rec.287) is granted in part and denied in part. Two classes are certified: Subclass (A) consists of persons who worked in Zirkle Fruit Company’s warehouse from November 5, 1999, to the present whether Zirkle hired them directly or obtained them indirectly through Selective Employment Agency. Subclass (B) consists of persons who worked in Zirkle Fruit Company’s orchards from November 5, 1999, to the present.
IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order and furnish copies to counsel.
Parallel Citations
RICO Bus.Disp.Guide 10,714
	
  

8

 </s> Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

2000 WL 33225470 United States District Court, E.D. Washington.
Olivia MENDOZA and Juana Mendiola, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs v.
ZIRKLE FRUIT CO., a Washington Corporation, Matson Fruit Company, a Washington
Corporation and Selective Employment Agency, Inc., a Washington Corporation, Defendants.
No. CS–00–3024–FVS. | Sept. 27, 2000.
Opinion
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND REMANDING CAUSE TO STATE
COURT
VAN SICKLE, Chief District J.
*1 BEFORE THE COURT is a motion to dismiss and for a stay of discovery filed by defendants Zirkle Fruit Company (“Zirkle”), Matson Fruit Company (“Matson”) and Selective Employment Agency, Inc. (“Selective”). The Court heard oral argument on the motion on August 31, 2000. The plaintiffs were represented by Steve W. Berman, Andrew M. Volk, Kevin P. Roddy, and Howard W. Foster. The defendants were represented by Brendan V. Monahan (Selective), Ryan M. Edgely (Matson and Zirkle), and Walter G. Meyer (Zirkle).
Procedural Background
Defendants Zirkle Fruit Company (“Zirkle”) and Matson Fruit Company (“Matson”) grow, package, and sell fruit. The plaintiffs/class representatives, Olivia Mendoza and Juana Mendiola, were lawfully employed by Zirkle as laborers. The plaintiffs allege that Zirkle and Matson are engaged in two related illegal schemes for the purpose of depressing employee wages, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et. seq.: the “Illegal Immigrant Hiring Scheme” and the “I–9 Mail Fraud Scheme.” The plaintiffs further claim in Count 2 that Matson and Zirkle entered into a civil conspiracy with a third defendant, Selective Employment Agency, Inc. (“Selective”), to violate the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1324, in violation of state law.1 The plaintiffs brought this

action individually and on behalf of all other similarly situated laborers.

1

Selective is an employment agency which has referred

workers to Zirkle and Matson. The plaintiffs claim that

“Matson and Zirkle have entered into these joint

ventures [with Selective] for the primary purpose of

shifting certain aspects of Illegal Immigrant Hiring

Scheme from themselves to an outside firm.” Compl. at

¶ 41.

Defendants Zirkle and Matson seek dismissal of the complaint pursuant to Fed.R.Civ.P. 12(b)(6); defendant Selective has joined in the motion.2 The defendants argue that the plaintiffs’ complaint should be dismissed for the following reasons: (1) the plaintiffs fail to adequately allege the elements of any predicate act under RICO; (2) the plaintiffs lack standing to pursue a claim under RICO; (3) the plaintiffs’ claims interfere with the comprehensive enforcement scheme established by the Immigration Reform and Control Act; and (4) federal preemption of the state law civil conspiracy claim.

2

Defendant Selective has filed a separate motion to

dismiss it as a party-defendant for lack of subject

matter jurisdiction.

The Court finds that although plaintiffs have properly alleged that defendants have violated federal immigration laws, defendants’ motion to dismiss will be granted. The Court finds that plaintiffs’ alleged damages are simply too speculative to survive the motion. However, the Court finds that plaintiffs’ state law conspiracy claims are not preempted by federal law, and the Court remands the state claims to state court. The Court also finds that plaintiffs’ RICO claims do not interfere with the enforcement scheme of the Immigration Reform and Control Act and finds that if this cause were to proceed in federal court, defendant Selective would be dismissed under this Circuit’s jurisprudence on “pendent party jurisdiction.”

Factual Background As Alleged in Complaint
The following are the facts alleged in the Complaint and in Plaintiff’s RICO Case Statement:

A. The “Illegal Immigrant Hiring Scheme” *2 Since 1996, defendants Matson and Zirkle have
1

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

knowingly hired at least 50 undocumented workers per year as part of a scheme to depress employee wages. Defendants have exploited these workers’ precarious economic situation and fear of asserting their rights to drive the wage rate for both documented and undocumented workers to a level lower than it would be if defendants did not hire undocumented workers. Defendant Zirkle has entered into an association-in-fact enterprise with defendant Selective, an employment agency, to knowingly hire undocumented workers and depress the hourly wages paid to all of Zirkle’s workers. Defendant Matson has entered into an identical association-in-fact enterprise with Selective.
In early 1999 defendant Matson was audited by the Immigration and Naturalization Service (“INS”) for its suspected hiring of undocumented workers. The INS found that in 1998 74% of Matson’s workforce (493 of 661 workers) was undocumented, and had been hired with false papers. The INS has made similar findings in the past against defendant Zirkle. Matson maintains two sets of books, one that shows all of its workers, and one that excludes all workers known to Matson to be undocumented and working under false papers. Matson and Zirkle have in many cases rehired undocumented workers using different false papers, even after being forced to fire these workers by the INS. Defendants Matson and Zirkle each hire undocumented workers with actual knowledge that each undocumented person was either smuggled into the U.S., or harbored once in the U.S.

paying the employees’ wages (for which it is reimbursed by Matson or Zirkle), withholding taxes and preparing the paper-work for each employee, in return for which it is paid a fee, Matson and Zirkle have directed and continue to direct Selective to hire undocumented workers and to prepare the false I–9 forms referred to above.
D. Harm and Damages Plaintiffs and the class that they represent have been harmed by the lower wages paid by defendants Matson and Zirkle as a result of the Illegal Immigrant Hiring Scheme.
Analysis
A. Rule 12(b)(6) Standard *3 “On a motion to dismiss we are required to read the complaint charitably, to take all well-pleaded facts as true, and to assume that all general allegations embrace whatever specific facts might be necessary to support them.” Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994).

B. The “I–9 Mail Fraud Scheme”
Defendants Matson and Zirkle send I–9 forms to the INS through the U.S. mail for the undocumented workers referred to above. Defendants Matson and Zirkle falsely state on these forms (or cause defendant Selective to falsely state when filling out forms for Matson and Zirkle’s employees) that these employees’ eligibility to work in the U.S. has been verified. Matson and Zirkle (or Selective) complete these forms knowing that the Social Security numbers used to “verify” these workers’ employment eligibility are false. This I–9 scheme is perpetrated in furtherance of the illegal hiring scheme discussed above.
C. The Relationship with Selective
Matson and Zirkle each have a contractual relationship with Selective, whereby Selective hires workers to work for Matson and Zirkle; Selective takes responsibility for

B. Failure to Allege Elements of RICO Predicate Acts
Under RICO, it is unlawful for any person 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. See 18 U.S.C. § 1962(c). Racketeering activity includes any act which is indictable under § 274 of the Immigration and Nationality Act, if the act “was committed for the purpose of financial gain.” 18 U.S.C. § 1961(1)(F). Any act which is indictable as mail fraud under 18 U.S.C. § 1341 also constitutes racketeering activity. See 18 U.S.C. § 1961(1)(B). The plaintiffs have alleged mail fraud and violations of § 274 of the INA as RICO predicate acts.
The defendants argue that the predicate acts, as alleged by the plaintiffs, are insufficient to establish a RICO claim. Although not necessary to the Court’s ruling on the instant motion, the Court discusses below its findings as to defendants’ arguments. The Court finds that plaintiffs have adequately pled the predicate act of violating the Immigration and Nationality Act, but have not adequately pled the predicate act of mail fraud.
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Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

1. Illegal Immigrant Hiring Scheme.
Plaintiffs allege that Matson and Zirkle continually and knowingly hire workers of illegal status because those workers are willing to accept sub-market wages. Specifically, plaintiffs allege that Matson and Zirkle each have employed at least 50 illegal aliens in each year from 1996 to the present with actual knowledge of the aliens’ illegal status and with knowledge that the aliens were either smuggled into the United States or harbored once in the United States, in violation of the Immigration and Nationality Act (“INA”).
Section 274 of the INA provides in part:

Any person who, during any 12–month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under Title 18, or imprisoned for not more than 5 years, or both.

8 U.S.C. § 1324(a)(3)(A). An alien described in subparagraph (B) is an alien unauthorized to be employed who “has been brought into the United States in violation of” the provisions of 8 U.S.C. § 1324(a). 8 U.S.C. § 1324(a)(3)(B), 1324a(h)(3). The portion of Section 1324(a) which appears most germane here prohibits bringing a known alien into the United States “in any manner whatsoever” at “a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States...” 8 U.S.C. § 1324(a)(1)(A)(i).

*4 The defendants argue that the plaintiffs’ first predicate act fails to the extent that the plaintiffs allege that the defendants knew that the illegal, workers were “harbored” in the United States. On this point, defendants may be correct. Section 1324(a) somewhat redundantly defines “harboring” as concealing, harboring, or “shield[ing] from detection” an alien in any place with knowledge “or in reckless disregard of the fact” that the alien has “come to, entered or remains in the United States in violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iii). Plaintiffs may not be able to show that defendants knew more than the legal status of the people that they hired.4

4

Some courts have interpreted the “harboring” provision

of the INA to cover a broad range of actions, meaning

that the plaintiffs might be able to show that the defendants themselves “harbored” workers, which would constitute a separate RICO predicate act. See United States v. Klm, 193 F.3d 567 (2d Cir.1999) (defendant found guilty of harboring alien by knowingly employing illegal alien).

However, plaintiffs do not have to allege that defendants harbored any aliens. The complaint alleges that defendant Matson knew that the undocumented workers were “either smuggled into the U.S. and/or harbored once he or she was in the U.S.” Compl. at ¶ 29 (emphasis added) and alleges that defendants Zirkle knew that “each [undocumented worker] was either smuggled into the U.S. or harbored once in the U.S.” Id. at ¶ 32. A common sense understanding of “smuggled” is “unlawfully brought,” the language of Section 1324(a)(3)(B).5 Therefore the plaintiffs have adequately pled a predicate act under RICA by alleging that the defendants knew that some of their workers were unlawfully brought into the United States.

5

Black’s Law Dictionary defines “smuggling” as

“[f]raudulent taking into a country, or out of it,

merchandise which is lawfully prohibited.”

The defendants next argue that the plaintiffs have no factual basis for the assertion that the defendants had “actual knowledge” that workers were unlawfully brought into the United States. The defendants argue that the plaintiffs cannot state a claim without pleading such details as when workers were smuggled into the United States, where workers were smuggled into the United States, how the workers were smuggled into the United States, and how the defendants had “actual knowledge” of those events.
Rule 8 of the Federal Rules of Civil Procedure does not require the plaintiffs to plead their cause of action in the detail the defendants demand. Rule 8 states that a pleading which sets forth a claim for relief shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The plaintiffs argue that non-fraud RICO claims are subject to the pleading requirements of Rule 8. That appears to be the majority rule. See MCM v. Andrews–Bartlett & Assoc., Inc., 62 F.3d 967 (7th Cir.1995) (applying notice pleading to non-fraud RICO claims); Rose v. Bartle, 871 F.2d 331, 356 (3rd Cir.1989) (finding unwarranted the defendant’s suggestion that a charge of racketeering, with its implications of links to organized crime, should not be easier to plead than accusations of fraud, which are subject to the special pleading requirements of Rule 9); Colony at Holbrook, Inc. v. Strata G.C., Inc., 928 F.Supp. 1224, 1234 (E.D.N .Y.1996) (“[A]llegations of non-fraud
3

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

based predicate acts need only comply with Rule 8(a) and contain a ‘short and plain statement’ showing the pleader is entitled to relief.”); United States v. International Brotherhood of Teamsters, 708 F.Supp. 1388, 1369 (S.D.N.Y.1989); Lewis v. Sporck, 612 F.Supp. 1316, 1324 (N.D.Cal.1985); but see Plount v. American Home Assurance Co., 668 F.Supp. 204, 206–07 (S.D.N.Y.1987) (requiring non-fraud RICO claims to be pled with particularity). The Court finds that plaintiffs’ allegations as to the “Illegal Immigrant Hiring Scheme” satisfy Rule 8.
*5 The Court’s inquiry, however, does not end there. The Court must also determine whether Local Rule 3.2, which requires RICO plaintiffs to file a RICO Case Statement, effectively heightens the plaintiffs’ pleading requirement for the purpose of a 12(b)(6) motion to dismiss. The plaintiffs indirectly argue that LR 3.2 is inconsistent with Rule 8 to the extent that it heightens the plaintiffs’ pleading standard.
Rule 83 of the Federal Rules of Civil Procedure grants district courts the discretion to promulgate local rules, so long as the local rule is “not inconsistent” with a Federal Rule of Civil Procedure. See Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607 (1987); Fed.R.Civ.P. 83(a). Plaintiffs raise a valid concern that a local rule which heightens the pleading standard may be inconsistent with the spirit and intent of Rule 8 and its clear mandate of notice pleading. However, as resolution of this issue is not necessary to the Court’s ruling on this motion, the Court declines to comment further.
2. I–9 Mail Fraud Scheme
The plaintiffs also allege that Matson and Zirkle engage in mail fraud—a separate RICO predicate act. The plaintiffs allege that Matson and Zirkle complete or have Selective complete false Employee Eligibility Verification Forms (“I–9 forms”) for illegal workers that they hire; the plaintiffs further allege that some of these forms have been sent through the mails, under penalty of perjury, to the INS, with actual knowledge that the workers being employed were ineligible for employment. The plaintiffs allege that this mail fraud scheme furthers the Illegal Immigrant Hiring Scheme, detailed above. The defendants contend’ that the plaintiffs have failed to plead sufficiently the elements of mail fraud and have failed to plead the act with enough specificity, and have thus failed to plead a predicate act under RICO.

To establish a violation of the mail fraud statute, 18 U.S.C. § 1341, the plaintiffs must show: (1) the defendants formed a scheme or artifice to defraud; (2) the defendants used the United States mails or caused a use of the United States mails in furtherance of the scheme; and (3) the defendants did so with the specific intent to deceive or defraud. See Rothman v. Vedder Park Mgmt., 912 F.2d 315, 316 (9th Cir.1990). The mail fraud statute prohibits the use of the mails to obtain money or property from the one who is deceived. See United States v. Lew, 875 F.2d 219, 221 (9th Cir.1989) (immigration attorney’s conviction for mail fraud overturned because though the attorney sent fraudulent work papers to the Department of Labor on behalf of his illegal alien clients, the Department of Labor was not the source of the financial gain) (cited in Monterey Plaza Hotel, Ltd. v. Local 483 of the Hotel and Restaurant Employees Union, 215 F.3d 923, 926 (9th Cir.2000)); United States v. Thomas, 32 F.3d 418 (9th Cir.1994). The defendants argue that because the INS was the party that was allegedly deceived by the fraudulent I–9 forms, and because the INS was not the source of the defendants’ alleged financial gain, the defendants’ alleged conduct does not constitute mail fraud and cannot form the basis of that RICO predicate act.
*6 Plaintiffs claim that United States v. Kim, 193 F.3d 567 (2d Cir.1999) supports their contention that mailing false I–9 forms is an actionable violation. The issue here, however, is not whether such a scheme is a violation of the INA, as was the issue in Kim, but whether mailing false I–9 forms to the INS constitutes mail fraud in this instance. More to the point is United States v. Hubbard, et. al., 96 F.3d 1223 (9th Cir.1996), cited by plaintiffs at oral argument, in which the court held that in a scheme to sell cars with rolled-back odometers, the state’s mailing of new titles with the false odometer readings to the cars’ new owners was “sufficiently closely related” to the underlying scheme to constitute mail fraud.
However, the underlying basis for the court’s finding in Hubbard was that the party defrauded was the party deceived by the mailing, even though the mailing did not come from the defendant. See Hubbard, 96 F.3d at 1229 (defendants could be charged with mail fraud because use of U.S. mails by state agency to mail new owners titles containing false odometer readings was reasonably foreseeable by defendants, although not made intentionally part of scheme to defraud). Here, by contrast, the party that plaintiffs allege was defrauded of money is the plaintiff class, while the party deceived by the mailings was the INS. Thus, although it is not necessary to the underlying conclusion reached on this motion, the Court finds that plaintiffs have not as a matter of law adequately alleged the elements of mail fraud.

a) The Elements of Mail Fraud 4

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

b) Sufficiency of the Pleadings Under Rule 9
In addition, defendants argue that the plaintiffs have failed to plead the allegation of mail fraud with enough specificity to satisfy Fed. Rule Civ. P. 9(b). Rule 9(b) requires “the identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations,” including the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations. Schreiber Distrib, Co. v. Serv–Well Furniture Co., Inc., 806 F.2d 1393, 1400–01 (9th Cir.1986) (internal quotation omitted).
The plaintiffs concede that their fraud-based RICO claim is subject to the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure. See e.g., Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991). However, the plaintiffs argue that they need to conduct discovery before they can satisfy all of the requirements of Rule 9(b); they also argue that defendants have been put on sufficient notice as to the nature of their claim to proceed to the discovery phase. Plaintiffs point out, accurately, that Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987), established precedent for relaxing the requirements of Rule 9 where the “plaintiffs cannot be expected to have personal knowledge of the facts constituting the wrongdoing.” Id.
*7 Although the plaintiffs need not plead their allegation with the specificity suggested by defendants, here the plaintiffs’ inability to plead the particulars of the alleged mail fraud scheme is intimately connected to the flawed pleading of the elements of the offense; that is, plaintiffs do not know the particulars of the mailings in question because, as discussed above, although they are the party allegedly harmed by the fraud, they were not the party deceived by the mailings. Therefore, although plaintiffs and defendants raise interesting issues regarding the requirements of Rule 9 in this situation, the Court declines to consider the issue further.
C. RICO Standing
The defendants argue that the plaintiffs lack standing to bring a RICO claim because they have not been injured by the defendants’ practices. RICO provides a private cause of action for damages only to those individuals “injured in [their] business or property by reason of” a violation of the law’s substantive provisions. See 18 U.S.C. § 1964(c). The defendants argue that the plaintiffs’ alleged injury does not confer standing because (1) the injury was not proximately caused by the defendants’ alleged violations and (2) the claimed injury is not

sufficiently concrete.
1. Direct Injury
The Supreme Court has held that to satisfy the injury requirement of RICO, the alleged RICO predicate acts must be a “but for cause” and a “proximate cause” of the alleged injury. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). In determining whether an injury is too remote to allow for recovery under RICO, courts are to apply a three-factor test: (1) whether there are more direct victims of the alleged violation who can be counted on to vindicate the law; (2) whether it will be difficult to ascertain the amount of damages attributable to the violation; and (3) whether allowing recovery for indirect injuries would force the court to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury to obviate the risk of multiple recoveries. See Oregon Laborers–Employers Health & Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957, 963 (9th Cir.1999) (citing Holmes, 503 U.S. at 269–70). This three-part “remoteness” test blends together what previously had been two distinct concepts: (1) proximate causation and (2) a concrete injury. Although Holmes blends these two concepts together, because the Court today reaches different conclusions about the sufficiency of plaintiffs’ case as to each element the Court will discuss each element separately.
The first remoteness factor addresses the issue of proximate causation. In Holmes, the Supreme Court dismissed a RICO claim brought by a securities insurance corporation that insured a group of securities brokers because the plaintiff did not establish that the defendant’s violation was the proximate cause of the plaintiff’s injury. See Holmes, 503 U.S. at 271–73, 112 S.Ct. at 1319–21. The plaintiff-insurer alleged that the defendant defrauded the brokers’ customers; the customers thereupon lost their securities; the customers’ brokers could not cover the losses; and the plaintiff-insurer was then contractually obligated to cover the losses. Id. The Supreme Court found that the racketeering activity was not the proximate cause of the plaintiff’s injury because the plaintiff’s duty to cover the debts was triggered only by the brokers’ intervening insolvency. Id.
*8 Similarly, the Ninth Circuit recently held that a health plan did not have standing to bring a RICO suit against a tobacco company to recover the costs of medical care to smokers covered by the plan because the injury to the plan was entirely derivative of the harm suffered by the plan participants. See Oregon Laborers, 185 F.3d at 964. The Ninth Circuit also found proximate cause lacking in Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303,
5

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

1310–11 (9th Cir.1992), where subcontractors of the second-lowest-bidding prime contractor on a government project alleged that the defendant-contractor who was awarded the contract had violated federal setaside regulations in its bidding. 976 F.3d at 1311. The court found that although the defendants’ actions might have injured the plaintiffs, “it was the intervening inability of the prime contractors to secure the primary contracts that was the direct cause of plaintiffs’ injuries.” Sheperd v. American Honda Motor Co., Inc., 822 F.Supp. 625, 628 (N.D.Cal.1993) (discussing Imagineering ).
This case also appears superficially similar to a number of cases in which district courts have found that plaintiffs who alleged predicate acts of making false statements to, or otherwise misleading, governmental agencies were merely “indirect” victims. See Medgar Evers House Tenants Ass’n. v. Medgar Evers Houses Associates, L.P., 25 F.Supp.2d 116, 121 (E.D.N.Y.1998); Barr Laboratories, Inc. v. Quantum Pharmics, Inc., 827 F.Supp. 111 (S.D.N.Y.1993); Kingston Square Tenants Ass’n. v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566 (S.D.Fla.1992). Similarly, bere one of the predicate acts alleged by plaintiffs is filing false I–9 forms with the INS, and even the illegal hiring scheme could be seen as having the INS as its most direct victim. Indeed, defendants argue that the INS is the party to most properly bring an action for defendants’ alleged violations of law.

However, this case is distinguishable. The illegal hiring scheme alleged here does not depend on the intervening actions—or inactions—of any government agency or any other third person. By operation of the laws of supply and demand, simply by expanding the available labor pool through the predicate act of knowingly hiring illegal workers (as alleged by plaintiffs), defendants Matson and Zirkle could have driven down wages for documented and undocumented workers alike to some degree.6 Therefore, plaintiffs have stated a claim that they are the direct victims of defendants’ illegal hiring scheme.

6

The Supreme Court’s observation that the direct injury

requirement of RICO is predicated on the idea that “[A]

plaintiff who complained of harm flowing merely from

the misfortunes visited upon a third person by the

defendant’s acts was generally said to stand a too

reniote a distance to recover.” Holmes, 503 U.S. at 267,

is useful in addressing this issue. Plaintiffs’ alleged

harms here do not flow from a third person’s

misfortunes, although they may be related to the

misfortunes of the undocumented workers who are

allegedly exploited by defendants, and may be related

to the misfortunes of the INS, the agency allegedly

deceived by defendants’ mail fraud scheme.

2. Speculative Damages
This is not to say, however, that other intervening factors have not influenced plaintiffs’ damages. Indeed, it is the degree to which defendants could have caused plaintiffs alleged injuries in light of these other factors that is the most troubling aspect of plaintiffs’ case. Thus, after turning to the second and third elements in the Holmes remoteness analysis, the Court finds that the plaintiffs’ alleged injury is too speculative to confer standing.
*9 The second and third Holmes elements are: “(2) whether it will be difficult to ascertain the amount of the plaintiff’s damages attributable to defendant’s wrongful conduct: and (3) whether the courts will have to adopt complicated rules apportioning damages to obviate the risk of multiple recoveries.” Oregon Laborers, 185 F.3d at 963. A showing of “injury” requires proof of a concrete loss. See Imagincering, 976 F.2d at 1310–11. “Speculative” injuries are insufficient to confer RICO standing. Id. at 1311. Although the third Holmes element is not operative here because there is no other method known to the Court for plaintiffs to recover for defendants’ alleged wrongdoing, the second element is crucial.

In Imagineering, the Ninth Circuit considered a plaintiff-subcontractor’s claim that it suffered a loss of profits when defendant received contract bid through racketeering activity and plaintiff’s contractor was the next lowest bidder. Id. The court held that the plaintiff’s claim of damages was too speculative to confer standing because (1) the plaintiff could not prove that its contractor would have actually acquired the bid absent the defendant’s racketeering activity; (2) there was no proof that the contractor would not switch sub-contractors during the pendency of the project; and (3) the plaintiff failed to specify whether it was claiming loss of the opportunity to realize profits or loss of specific, identifiable profits. Id., see also Oscar v. University Students Co-operative Ass’n, 965 F.2d 783, 785 (9th Cir.1992) (en banc ) (claim that plaintiff suffered losses in the reduced rent she could charge to sublet her apartment was insufficient where plaintiff did not allege that she had a right to sublet her apartment nor that she ever had sublet the apartment or wanted to sublet the apartment).7

7

Indeed, Imagineering could be read to require proof

that a plaintiff actually paid money as a result of the

racketeering activity in order to have standing to bring

a RICO claim. See id. at 1310 (“[T]he facts alleged do

not establish ‘proof of concrete financial loss,’ let alone

show that money was paid out as a result of [the

defendant’s] alleged racketeering activity.”); see also

Sheperd v. American Honda Motor Co., 822 F.Supp.

625, 628 (N.D.Cal.1993).

6

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

Also instructive on this issue is Sheperd v. American Honda Motor Co., 822 F.Supp. 625 (N.D.Cal.1993). In Sheperd, the plaintiffs, owners of a Honda car dealership, alleged that American Honda, which allocated new cars to Honda dealerships, conspired with other dealerships to fabricate the number of Honda cars being sold in the United States. The plaintiffs further alleged that when they refused to misreport the number of cars sold by their dealership, they were allocated a lower number of popular cars. The plaintiffs were unable to compete with deaterships that received a high number of popular cars and were forced to sell their dealership at a distressed price. Sheperd; 822 F.Supp. at 627.
The district court found that the plaintiffs lacked standing to bring a RICO claim because the injury to their car dealership was too speculative:
There can be no doubt that the alleged diversion tactics and reduced allocations would have been likely to have some adverse effect on the profitability of the Sheperds’ dealership, and consequently affect the market value of the dealership. But the financial losses reflected in reduced profitability and a distressed sale price are too attenuated from the alleged wrongful conduct of defendants to give plaintiffs standing to recover treble damages under RICO.... For this Court, or a jury, to assess what portion of the dealership’s diminished profitability and market value were attributable to the defendants’ wrongful conduct, apart from other factors, would be an exercise in sheer speculation.
*10 Although courts may be willing to permit such speculation in other contexts, Supreme Court and Ninth Circuit precedent indicate that it is not tolerable in the context of RICO with its provision for treble damages.
Id. at 630.
Here, as in Imagineering and Sheperd, the plaintiffs’ main flaw is their inability to concretely establish the degree to which their wages have been affected by the defendants’ alleged violations. As the Ninth Circuit stated in Imagineering “[e]ssentially, the [direct injury] rule has more to do with problems of proof than foreseeability,” 976 F.2d at 1312.
A wide range of factors determines the wage for orchard laborers in the Yakima Valley. Plaintiffs have argued that they will be able to show, through expert testimony and statistical and demographic modeling, what the relevant labor market would look like absent the hiring of undocumented workers. However, such evidence would not be sufficient to remove plaintiffs’ damage claim from the realm of sheer speculation. Plaintiffs may be able to show what the prevailing wage rate might be if no illegal workers were hired by any employers in the region.

However, it would be extremely difficult to show with the required specificity what impact defendant’s alleged wrongdoing has had in the context of the whole labor market. In addition, the wage rate that plaintiffs might have been paid would depend on the wage rate paid by other orchardists and similar employers, the general availability of laborers, documented and undocumented, in the Yakima Valley, the profitability of the defendants’ businesses, the qualifications of each plaintiff, whether the plaintiffs individually or as a class would have been hired at a higher rate, and other factors.
Sifting through those factors to determine the exact amount of loss attributable to the defendants’ alleged violations would be a daunting task at best. And, as the court in Sheperd stated. “[a]lthough courts may be willing to permit such speculation in other contexts, Supreme Court and Ninth Circuit precedent indicate that it is not tolerable in the context of RICO with its provision for treble damages.” 822 F.Supp. at 630. The Court finds that plaintiffs have failed to allege a sufficiently non-speculative financial loss that resulted from defendants’ wrongdoing to sustain their RICO claim. Plaintiffs have thus failed to establish standing to bring this action. On that basis, the Court will grant defendants’ motion to dismiss.
D. “Preemption” of Plaintiffs’ RICO Claims
Defendants argue that plaintiffs’ RICO claims interfere with the “comprehensive enforcement scheme” of the Immigration Reform and Control Act (“IRCA”). This assertion has no merit. Congress would not have included violations of the immigration laws, including 8 U.S.C. § 1324(a), as a predicate act under RICO if it had not intended for citizens to bring exactly the kind of action now before the Court.
E. Preemption of Plaintiffs’ State Law Civil Conspiracy Claim
*11 Defendants assert both that plaintiffs’ state conspiracy claim is preempted by the “comprehensive... enforcement scheme mandated by the IRCA” and that plaintiff’s claims are expressly preempted by the language of the IRCA. Neither assertion bears out.
Defendants’ more general assertion fails because IRCA’s express preemption language limits the preemptive scope of the statute. IRCA states that “[t]he provisions of [IRCA] preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)
7

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1342a(h)(2). Because Congress has expressly defined the preemptive reach of IRCA, this language both defines and limits the preemptive reach of the statute. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992). Therefore, defendants’ claim that plaintiff’s state law conspiracy claim is preempted by the “comprehensive... enforcement scheme mandated by the IRCA” is rejected.
Defendant’s second assertion fails because the preemption language quoted above refers only to “civil or criminal sanctions,” 8 U.S.C. § 1342a(h)(2), which does not cover plaintiffs’ claims for civil money damages. As stated above, because IRCA contains an express preemption provision, the language of that provision provides strict limits on the scope of the statute’s preemption of state law. See Cipollone, 505 U.S. at 524 (“[E]ach phrase within [a preemption clause] limits the universe” of laws preempted.) Because “sanctions” are distinct from the “damages” sought by plaintiffs, the preemption clause of IRCA does not cover the remedy sought by plaintiffs, and IRCA does not preempt plaintiffs’ state law conspiracy claim for civil damages.

F. Defendant Selective’s Motion to Dismiss It as a Pendant Party
Selective moves to dismiss the state law civil conspiracy claims against it on the grounds that this Court lacks subject matter jurisdiction to hear a claim against a pendent party. Prior to 1990, district courts had little explicit statutory authority to exercise supplemental jurisdiction over parties and claims that lacked an independent basis for being in federal court. Case law focused on two rather amorphous concepts: “ancillary jurisdiction” and “pendent jurisdiction.” In 1990, Congress passed the supplemental jurisdiction statute. codified at 28 U.S.C. § 1367, which granted broad authority for supplemental jurisdiction in federal-question cases while limiting supplemental jurisdiction in diversity cases.
This case presents the type of supplemental jurisdiction that prompted Congress to enact § 1367; pendent party jurisdiction.8 Because of the Ninth Circuit’s historically hostile view toward pendent party jurisdiction, and its pre- § 1367 holdings that such jurisdiction is unconstitutional, an overview of the development of this law is necessary.

8

In addition to involving a state claim that is appended

to the claim that provides the anchoring source of

federal jurisdiction, a pendent party claim requires for

its resolution the inclusion of a new party.

In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), a unanimous Supreme Court enunciated a test for determining when supplemental jurisdiction meets the constitutional requirement of Article III, § 2. Gibbs involved the most basic pendent jurisdiction scenario—a plaintiff sought to bring a federal claim and a state claim against the same non-diverse defendant. The Court held that jurisdiction exists when the relationship between the federal claim and “the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.” ’ Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138 (1966). “The state and federal claims must derive from a common nucleus of operative fact” such that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” Id.
*12 Soon after Gibbs, the federal courts began to grapple with pendent party jurisdiction. While the language in Gibbs strongly suggests that its test applies to all variations of supplemental jurisdiction, the Ninth Circuit was quick to limit the new test to the facts of that case. The Ninth Circuit refused to apply the broad Gibbs test to pendent parties and instead relied on the pre-Gibbs constitutional rule that jurisdiction exists only if the new claim involves the same parties. See Hymer v. Chai, 407 F.2d 136, 137 (9th Cir.1969) (holding that “[j]oinder of claims, not joinder of parties” was the object of the pendent jurisdiction doctrine, and that the doctrine “was not designed to permit a party without a federally cognizable claim to invoke federal jurisdiction by joining a different party plaintiff asserting an independent federal claim growing out of the same operative facts”); Williams v. United States, 405 F.2d 951 (9th Cir.1969).
After Hymer, the Supreme Court itself began to limit pendent party jurisdiction, but always for lack of statutory authority rather than on constitutional grounds. In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413 (1976), the Court held that there was no statutory authority whereby a plaintiff could attach a state claim against a county to a § 1983 action against county officials. See Aldinger, 427 U.S. at 16–17, 96 S.Ct. at 2421–22. The Court also noted that its decision was buttressed by the fact that the plaintiff could have brought all claims in state court. Id., 427 U.S. at 18, 96 S.Ct. 2422.
The great majority of circuits interpreted Aldinger to allow pendent party jurisdiction in cases in which the plaintiff could not sue all defendants in state court: for example, in cases in which the United States was a party. The Ninth Circuit, however, retained its firm stance that pendent party jurisdiction in any form simply exceeded the scope of Article III. See Ayala v. United States, 550 F.2d 1196, 1200 n. 8 (9th Cir.1977) (“our difficulty with pendent party jurisdiction is a constitutional one under
8

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

Article III”). The Ayala court explained that:

It should be emphasized that,

putting to one side the potential

statutory analysis underlying our

decision in Williams, it is clear that

Hymer ‘s rejection of pendent party

theory was not based on a ferreted

congressional disinclination, but

rather rested on a more

fundamental

constitutional

consideration.

The Supreme Court’s affirmance in Aldinger, grounded as it was on a congressional disinclination to allowing pendent party jurisdiction. may thus be read merely as another avoidance of the ultimate question of constitutional power left unanswered by the Court in Moor v. County of Alameda.
Ayala, 550 F.2d at 1199–1200 (citation omitted). The Ninth Circuit has never overruled Ayala.
The issue came to a head in 1989 with the Supreme Court’s decision that pendent party jurisdiction had to be expressly authorized by statute, effectively eliminating all pendent party jurisdiction. See Finely v. United States, 490 U.S. 545, 109 S.Ct. 2003 (1989). In Finely the plaintiff had brought a claim against the United States under the Federal Tort Claims Act; the plaintiff had no choice but to bring the claim in federal court. The Supreme Court held that the district court lacked jurisdiction to hear the plaintiff’s state claims against other defendants, even though the claims arose out of a common nucleus of operative fact. The Court made very clear that its holding was statutory and not constitutional; it closed the opinion by inviting Congress to change the result. Id., 490 U.S. at 556, 109 S.Ct. at 2010 (“Whatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress.”).
*13 In 1990, Congress did just that when it enacted 28 U.S.C. § 1367. That statute provides that, except for a few specific types of cases,9 the district courts have “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III” including claims “that involve the joinder or intervention of additional parties.” 28 U.S.C. § 1367(a). Thus, Congress extended the bounds of supplemental jurisdiction in federal-question cases as far as Article III permits.

9

The exceptions stated in § 1367(b) involve cases in

which the anchoring claim is brought to federal court

under diversity jurisdiction.

Since the enactment of § 1367, other courts have embraced pendent party jurisdiction as long as the Gibbs “common nucleus of operative fact” test is met. See, e.g., Franceskin v. Credit Suisse, 2000 WL 719494, *4 (2nd Cir.2000); In Re Prudential Insur. Co., 148 F.3d 283, 383 (3rd Cir.1997). As one commentator has put it:
Only one federal circuit, the Ninth, has ever indicated that the exercise of pendent party jurisdiction may be constitutionally impermissible under Article III. The Ninth Circuit, however, which openly acknowledged its ‘historic hostility to pendent party jurisdiction,’ never expressly identified the nature of this constitutional infirmity and stood alone among the federal courts on this issue. As previously argued, Article III does not compel the position espoused by the Ninth Circuit, and such a position is clearly contrary to the long judicial history of permitting supplemental jurisdiction over claims involving additional parties under other circumstances.
Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute—A Constitutional and Statutory Analysis, 24 ARIZ.ST.L.J. 849, 903–04 (1992).
A resigned Eastern District of California, facing the very issue that is now before the Court, found that it lacked subject matter jurisdiction to hear a state claim against a pendent party. See Elsaas v. County of Placer, 35 F.Supp.2d 757 (E.D.Cal.1999). First, the court acknowledged that Congress had provided authorization for pendent party jurisdiction, but recognized that “congressional approval of pendent party jurisdiction, as manifested in 28 U.S.C. § 1367, is effective only if pendent party jurisdiction is permitted under Article III.” Id. at 759. It then noted that the Supreme Court has yet to decide whether pendent party jurisdiction is permissible under Article III. See id. at 760.
Left with no authoritative decisions of the Supreme Court, the district court felt bound by pre § 1367 Ninth Circuit precedent:
Whatever its deficiency in analysis, Ayala clearly expressed the Ninth Circuit’s view that Article III does not permit pendent party jurisdiction. No decision of the United States Court of Appeals for the Ninth Circuit or the United States Supreme Court has overruled Ayala ‘s rejection of pendent party jurisdiction on constitutional grounds, nor does the passage of § 1367 alter the holding. Thus, Ayala
9

Mendoza v. Zirkle Fruit Co., Not Reported in F.Supp.2d (2000)

remains the law on pendent party jurisdiction in the Ninth Circuit, and this court, being bound, may not exercise jurisdiction over plaintiffs’ claims against the Union....

*14 Despite my firm conviction that the result of Ayala does not comport with practical governance, and even in the absence of articulated justification, I am, of course, bound by it unless overtaken by subsequent law. I must conclude that Ayala represents the last expression of the law by which I am bound. While I can hope that the Court of Appeals will reconsider, until then I am obligated to apply Ayala ‘s holding.

Id. at 760–61; see also, Eads v. Eads, 135 B.R. 387, 394 n .11 (Bankr.E.D.Cal 1991) (noting, in dicta, that “this circuit has expressed the view that adding pendent parties in connection with pendent claims exceeds the bounds of Article III”).

The only indication from the Ninth Circuit itself that the

result should be otherwise is found in Yanez v. United

States, 989 F.2d 323 (9th Cir.1993). In Yanez, a federal

defendant complained that the theory of relief posited by

the plaintiff in federal court was inconsistent with the

plaintiff’s theory in a related claim previously brought in

state court. The Ninth Circuit allowed the inconsistent

theories, in part because under Ayala the plaintiff had no

choice but to bring two separate actions in two separate

forums, See id. at 327. The Court noted:

Although Congress has now

explicitly authorized pendent party

jurisdiction

(“supplemental

jurisdiction”), 28 U.S.C.A. § 1367

(West Supp.1992), the section is

not retroactive. Section 1367

applies to civil actions commenced

on or after Dec. 1, 1990. The

Judicial Improvements Act of 1990,

Pub.L. No. 101–650, § 310(c).

Id. at n. 3.

Yanez could be read as an acknowledgment that pendent party jurisdiction is now permissible in civil actions commenced after December 1, 1990. The Court declines to adopt such a reading, however. If the Ninth Circuit truly intended to reverse Ayala, one would think that it would do so explicitly and not through dicta placed in a footnote.

As plaintiffs point out, some district courts within the

Ninth Circuit have recently permitted pendent party jurisdiction, at least in the pendent-plaintiff context, see Ziegler v. Ziegler, 28 F.Supp.2d 601, 618–19 (E.D.Wash.1998) (Nielsen, C.J.); c.f. Guzman v. Onard Lemon Assoc., Ltd., 1992 WL 510094, *8–9 (C.D.Cal.1992) (permitting pendent-plaintiff jurisdiction, though it recognized such jurisdiction was questionable); Irwin v. Mascott, 1999 WL 1814712, *4 (N.D.Cal.1999), perhaps casting some doubt upon the continued vitality of Ayala. As that decision has not been overruled, however, this Court has no choice but to acknowledge that if this cause were to be maintained in federal court, the Court would lack jurisdiction over defendant Selective.
IT IS HEREBY ORDERED:
Defendants’ Motion to Dismiss (Ct.Rec.15) is GRANTED.
1. Plaintiffs have alleged facts to support the predicate act of hiring undocumented aliens (the “Illegal Immigrant Hiring Scheme”), a predicate act under RICO.
*15 2. However, plaintiffs’ alleged injury is too speculative for purposes of RICO standing. Plaintiffs thus lack standing to bring this action.
3. The complaint is dismissed without leave to amend because amendment would be futile. See Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir.1995).
4. Plaintiffs’ RICO claims do not interfere with the enforcement scheme of the federal immigration laws.
5. Plaintiffs’ state law conspiracy claim is not preempted by federal law.
6. If this cause were to remain in federal court, the Court would not have jurisdiction over defendant Selective.
7. All remaining state law claims are REMANDED to state court.
IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order and furnish copies to counsel.
Parallel Citations
RICO Bus.Disp.Guide 9997
	
  

10

 </s> :/ No. 01-35276 (DIST. CT. NO. CV-00-03024-FLVS) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OLIVIA MENDOZA

and JUANA MENDOZA, individually of all others similarly situated,

and on behalf

Appellants,

V.

ZIRKLE COMPANY,

FRUIT CO., a Washington corporation, and MATSON FRUIT a Washington Corporation, and SELECTIVE EMPLOYMENT AGENCY, INC., a Washington Corporation

Respondents.

ON APPEAL FROM THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
(Honorable Fred L. Van Sickle)

APPELLANTS'

BRIEF

Steve W. Berman

Andrew M. Volk

HAGENS BERMAN LLP

1301 Fifth Avenue, Suite 2900

Seattle, Washington

98101

(206) 623-7292

Howard W. Foster JOHNSON & BELL, LTD 55 East Monroe, Suite 4100 Chicago, Illinois 60603 (312) 372-0770

r_

No. 01-35276
(DIST. CT. NO. CV-00-03024-FLVS) IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OLIVIA MENDOZA

and JUANA MENDOZA, individually of all others similarly situated,

and on behalf

Appellants,

V.

ZIRKLE COMPANY,

FRUIT CO., a Washington corporation, and MATSON FRUIT a Washington Corporation, and SELECTIVE EMPLOYMENT AGENCY, INC., a Washington Corporation

Respondents.

ON APPEAL FROM THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
(Honorable Fred L. Van Sickle)

APPELLANTS'

BRIEF

Steve W. Berman

Andrew M. Volk

HAGENS BERMAN LLP

1301 Fifth Avenue, Suite 2900

Seattle, Washington

98101

(206) 623-7292

Howard W. Foster
JOHNSON & BELL, LTD 55 East Monroe, Suite 4100 Chicago, Illinois 60603 (312) 372-0770

TABLE OF CONTENTS

PAGE

I°

STATEMENT

OF JURISDICTION

............................................................

1

II.

STATEMENT

OF ISSUES PRESENTED FOR REVIEW .........................

2

III. STATEMENT OF THE CASE ....................................................................

3

A.

Nature of the Case; Statement of Facts ..............................................

3

B.

Statement Of The Case .......................................................................

5

IV. SUMMARY OF ARGUMENT ....................................................................

6

A.

The District Court Applied the Wrong Legal Standard In

Determining Plaintiffs Lack Standing to Sue Under RICO ............... 6

B.

The District Court Improperly Imposed a Heightened

Pleading Standard on Plaintiffs ..........................................................

7

C.

The District Court Refused to Take As True Plaintiff's

Allegations Regarding Causation .......................................................

7

D.

Pendent Party Jurisdiction Is Not Unconstitutional

...........................

8

go

ARGUMENT ................................................................................................

9

A.

STANDARD

OF REVIEW ................................................................

9

B.

PLAINTIFFS HAVE STANDING TO SUE UNDER

RICO FOR THEIR DEPRESSED WAGES ......................................

9

1.

Plaintiffs Have Alleged Proximate Cause Under

The Factors Enunciated in Associated General

Contractors ("AGC") .............................................................

10

a.

Plaintiffs Have Alleged Direct Injury ..........................

11

b.

Plaintiffs' Damages Are Not Speculative .................... 13

c.

This Court Permits Damages to be Speculative

at the Pleading Stage ....................................................

15

-i-
1348 I0 0029 MTN DOC

2.

Defendant Need Not Be the Sole Cause of the

Plaintiffs' Injury .....................................................................

17

3.

The Law Does Not Require The Certainty Of Pleading

Damages Demanded By The District Court Here .................. 19

a.

The Common Law Does Not Require Certainty ......... 19

b.

In Antitrust Law And Under RICO, Damages

Are Liberally Assessed ................................................

21

c.

The Governing Standards Are Still More Liberal

In Proving the Amount of Damages .............................

22

d.

The Liberal Standards Governing Damages

Are Further Relaxed At the Pleading Stage ................. 22

d.

Imagineering

Does Not Bar Plaintiffs' Claims

Here ..............................................................................

23

4.

Plaintiffs Satisfy The Remaining AGC Factors .................... 26

C. IMAGINEERING

DOES NOT PERMIT DISTRICT COURTS

TO IMPOSE A "HIGHER STANDARD"

ON PLAINTIFFS

ALLEGING "INCOMPLETE"

LOSSES ........................................

27

1.

Plaintiffs Allege a "Concrete Injury" .....................................

27

2.

The District Court Improperly Demanded That

Plaintiffs Allege "Total Financial Loss" ................................

28

D.

SUPPLEMENTAL

JURISDICTION

IS CONSTITUTIONAL

...... 29

VI. CONCLUSION

...........................................................................................

32

1348. I 0 0029 MTN DOC

-ii-

TABLE OF AUTHORITIES

CASES

Abbs v. Sullivan,

963 F.2d 918 (7th Cir. 1992) ......................................................................

25

Aldinger v. Howard,

427 U.S. 1 (1976) ........................................................................................

31

American Ad Mgmt., Inc. v. General Tel. Co., 190 F.3d 1051 (9th Cir. 1999) ..............................................................

13, 14

In re American Honda Motor Co. Dealership Realtors Litig., 941 F. Supp. 528 (D. Md. 1996) ...........................................................

27, 28

Associated General Contractors Inc. v. California Council of Carpenters, 459 U.S. 519 (1983) ...........................................

State i .................................

passim

Association of Wash. Pub. Hosp. Districts v. Philip Morris, Inc., 241 F.3d 696 (9th Cir. 2001) ................................................................

11, 13

Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977) ................................................................

8, 31

Beck v. Prupis,

592 U.S. 494 (2000) .........................................

...........................................

21

Bhan v. NME Hospitals, Inc.,

772 F.2d 1467 (9th Cir. 1985) ....................................................................

13

Bhan

v. NME Hospitals, Inc., 669 F. Supp. 998 (E.D. Cal. 1987), afJ'd after remand, 929 F.2d 1404 (9th Cir. 1991) ..............................................................

11, 13

Big Bear Lodging Ass'n v. Snow Summit, Inc.,

182 F.3d 1096 (9th Cir. 1999) ......................................................................

9

1348.10 0029 MTN.DOC

...
- III -

Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251 (1946) ....................................................................................
Blanton v. Mobil Oil Corp., 721 F.2d 1207 (9th Cir. 1983), cert. denied, 471 U.S. 1007 (1985) ..................................................................................

Brokerage Concepts v. U.S. Healthcare, Inc., 140 F.3d 494 (3d Cir. 1998) .......................................................................

Chisolm v. TranSouth Fin. Corp., 95 F.3d 331 (4th Cir. 1996) ........................................................................

Cox v. Administrator

United States Steel & Carnegie,

17 F.3d 1386 (1 lth Cir. 1994) ....................................................................

Crist v. Leippe, 138 F.3d 801 (9th Cir. 1998) ........................................................................

Flintkote Co. v. LysJ]ord, 246 F.2d 368 (9th Cir.), cert. denied, 355 U.S. 835 (1957) ..............................................................................

Franceskin v. Credit Suisse, 2000 WL 719494, 4 (2d Cir. 2000) ............................................................

Gilligan v. Jamco Dev. Copp., 108 F.3d 246 (9th Cir. 1997) ............ ..........................................................

Hasbrouck v. Texaco, Inc., 842 F.2d 1034 (9th Cir. 1987), afjad, 496 U.S. 543 (1990) ....................................................................................

Hasbrouck v. Texaco, Inc., 634 Supp. 34, 41 (E.D. Wash. 830 F.2d 1513 (9th Cir. 1987)

1985), affd, ....................................................................

19 16 17 17 17 9 16, 2[ 31 29 15 21

l_4_.lO 0029 MTN.DOC

--iV--

Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990) .........................................................................

Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992) .............................................................................
Howard v. America Online, Inc., 208 F.3d 741 (9th Cir.), cert. denied, 2000 U.S. LEXIS 5208 (2000) .....................................................................

Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) ....................................................................

Imagineering,

Inc. v. Kiewit Pac. Co.,

976 F.2d 1303 (9th Cir. 1992) .............................................................

Irwin v. Mascott, 96 F. Supp. 2d 968 (N.D. Cal. 1999) ..........................................................

Knevelbaard Dairies v. Kra_ Foods, Inc., 232 F.3d 979 (9th Cir. 2000) ..................................................................
Knutson v. Daily Review, Inc., 548 F.2d 795 (9th Cir. 1976), cert. denied, 433 U.S. 910 (1977) ..............................................................................

Laborers Local 191 F.3d 528 U.S.

17 Health & Benefit Fund v. Philip Morris, Inc., 229 (2d Cir. 1999), cert. denied, 1080 (2000) ..................................................................................

Leatherman v. Tarrant County Narcotics Intelligence &

Coordination

Unit,

507 U.S. 163 (1993) ..............................................................................

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ..............................................................

17 passim
9 18 passim 31 7, 14 15, 22 11 28, 29 7, 9, 29

134g. I0 0029 MTN DOC

-V-

Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 845 P.2d 987 (1993) .........................................................

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................................
In re Multidistrict Vehicle Air Pollution, 591 F.2d 68 (9th Cir.), cert. denied, 444 U.S. 900 (1979) ....................................................................................

N. O. W. v. Scheidler, 510 U.S. 249 (1994) ....................................................................................

Oregon Laborers-Employers

Health & Welfare Trust Fund v.

Philip Morris,

185 F.3d 957 (9th Cir. 1999), cert. denied,

528 U.S. 1075 (2000) ..................................................................................

Oscar

v. University Students Co-Operative Ass'n., 965 F.2d 783 (9th Cir.), cert. denied, 506 U.S. 1020 (1992) ..................................................................................

Ostrofe v. H.S. Crocker Co., 670 F.2d 1378 (9th Cir. 1982), aff'dafter remand, 740 F.2d 739 (9th Cir. 1984) ................................................................
Pharmacare v. Caremark, 965 F. Supp. 1411 (D. Haw. 1996) .............................................................

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997), cert. denied, 523 U.S. 1082 (1998) ................................................................................

In re Prudential Insurance Co., 148 F.3d 283 (3d Cir. 1997) ...................

. ...................................................

Resolution Trust Corp. v. Keating, 186 F.3d 1110 (9th Cir. 1999) ....................................................................

1348 10 0029 MTN DOC

- vi -

20 22 24 23
13 28 16, 17 24 ":..26 31 10

Reynolds v. East Dyer Dev. Co.,

882 F.2d 1249 (7th Cir. 1989) ....................................................................

21

Sedima S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) ....................................................................................

29

Sheperd v. American Honda Motor Co.,

822 F. Supp. 625 (N.D. Cal. 1993) .............................................................

25

Stairmaster SportsMedical

Prods. v. Pacific Fitness Corp.,

916 F. Supp. 1049, 1056 (W.D. Wash. 1996) ............................................

25

Steckman v. Hart Brewing, Inc.,

143 F.3d 1293 (9th Cir. 1998) ......................................................................

9

Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931) ................................................................................

8, 19

United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) ..............................................................................

30, 31

In re Warfarin Sodium Antitrust Litig.,

214 F.3d 395 (3d Cir. 2000) .......................................................................

14

Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wn.2d 96, 330 P.2d 1068 (1958) ...........................................................
Yanez v. United States., 989 F.2d 323 (9th Cir. 1993) ..................................................................
Yellow Pages Cost Consultants, Inc. v. GTE Directories Corp., 951 F.2d 1158 (9th Cir. 1991), cert. denied, 504 U.S. 913 (1992) ....................................................................................

20 8, 31
15

Zenith Radio Corp. v. Hazeltine Research,

395 U.S. 100 (1969) ....................................................................................

20

1348 )0 0029 MTN.DOC

- vii -

Ziegler v. Ziegler,

28 F. Supp. 2d 601 (E.D. Wash. 1998) .......................................................

31

STATUTES

18 U.S.C. § 1961 etseq .................................................................................. 18 U.S.C. § 1962(c) ....................................................................................... 18 U.S.C. § 1964(e) ......... ................................................................................

passim 3, 9, 10
10, 20

28 U.S.C. § 1291 .....................................................................................................

2

28 U.S.C. § 1331 .....................................................................................................

1

28 U.S.C. § 1367(a) ........................................................................................

passim

Fed. R. Civ. P. 8(a) .........................................................................................

passim

Fed. R. Civ. P. 12(b)(1) ...........................................................................................

1

Fed. R. Civ. P. 12(b)(6) .................................................................................

1, 9, 15

Fed. R. Civ. P. 59(e) ............................................................................................

5, 6

Fed. R. Evid. 201(b) ..............................................................................................

15

Pub. L. 91-452 §904(a), 84 Stat. 947 ....................................................................

18

U.S. Const., art. II .................................................................................................

18

U.S. Const., art. III ..............................................................................................

2, 5

MISCELLANEOUS

RESTATEMENT (SECOND) OF TORTS, § 875 (1979) ................................................

18

D. Smith, Civil Rico, (2000) § 6.04 ......................................................................

10

1348.10 0029 MTN DOC

,°.
- Vlll -

Immigration and Nationality Act § 274(a)(3) .........................................................

3

8 J. yon Kalinowski, ANTITRUST LAWS AND TRADE REGULATION, § 161.02 ....... 18

1348 10 0029 MTN.DOC

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I.

STATEMENT

OF JURISDICTION

Plaintiffs-Appellants

Olivia Mendoza and Juana Mendiola appeal from two

orders of the United States District Court for the Eastern District of Washington

(Van Sickle, J.) dismissing their complaint against defendants Zirkle Fruit Co. and Matson Fruit Company with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) ER 0046-77 l, and denying their motion to reconsider the order of dismissal.

ER 0123-130. Plaintiffs also appeal from the district court's order granting the

motion of defendant Selective Employment Agency, Inc. to dismiss for lack of

subj ect matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(l ). ER 0131 - 132.

It is undisputed that the district court had jurisdiction over Count I of the complaint based upon the federal question statute, 28 U.S.C. § 1331 and the

Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. § 1961 et

seq. As to Count II of the complaint, ER 0013-14,jurisdiction

in the district court

was based upon 28 U.S.C. § 1367(a), which permits district courts to exercise

supplemental jurisdiction over pendent claims and parties. The district court

found, however, that pendant party jurisdiction over Selective Employment

Agency, Inc., was unconstitutional.

ER 0076-77.

i Citations to "ER

" refer to the page numbers of documents contained in

appellants' Excerpt of Record submitted herewith.

1348.10 0029 MTN DOC

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This Court has jurisdiction to review Plaintiffs' appeal from the district court's order of dismissal and from the order dated February 13, 2001 denying

Plaintiffs' motion to reconsider the district court's order dismissing the complaint

with prejudice and without leave to amend. That order dismissed the entire action and was thus a "final" judgment pursuant to 28 U.S.C. § 1291. ER 0046-77,

ER 0123-130. ER 0131-132.

Plaintiffs timely filed their notice of appeal on March 14, 2001.

It.

STATEMENT

OF ISSUES PRESENTED

FOR REVIEW

A.

Did the district court improperly conclude Plaintiffs lack standing to

assert their claims for depressed wages under RICO?

B.

Did the district court err in assuming facts not pied in the complaint,

and contrary to the complaint, in reaching its conclusion that Plaintiffs lack

standing to sue?

C.

Did the district court err in holding Plaintiffs' claims of damage to "an

even higher standard" of"concreteness"

than is required by Fed. R. Civ. P. 8(a)?

D.

Did the district court err in concluding that the exercise of

supplemental jurisdiction over pendent parties, pursuant to 28 U.S.C. § 1367(a), violates U.S. Const., art. IIl?

2
1348.[0 0029 MTN DOC

III. STATEMENT

OF THE CASE

A.

Nature of the Case; Statement of Facts

Plaintiffs filed this putative class action in March 2000 against defendants Zirkle Fruit Co. ("Zirkle") and Matson Fruit Company ("Matson"), companies that

are primarily engaged in the growing, warehousing and packing of apples and other fruit. ER 0001-15 (1 2). Plaintiffs alleged that their wages as employees of defendants were depressed as a result of Zirkle and Matson's widespread and knowing use of illegal immigrant workers ("the Illegal Immigrant Hiring Scheme"). ER 0002 (11 2, 3). Zirkle and Matson have engaged in the Illegal Immigrant Hiring Scheme consistently since the knowing employment of illegal

immigrants became a RICO predicate act in 1996 and to such an extent that the

Immigration and Naturalization

Service ("INS") determined that Matson's orchard

workforce was overwhelmingly

comprised of illegal immigrants who had used

fabricated documents to obtain employment.

ER 0002, 0003, 0007 (1¶ 2, 6, 24,

27).

The Illegal Immigrant Hiring Scheme violates § 274(a)(3) of the

Immigration and Nationality Act, which is incorporated by RICO as a predicate

act. ER 0007-8, 0012-13 (_1 28, 48 and 54). Plaintiffs allege that this ongoing

pattern of illegal conduct violates 18 U.S.C. § 1962(c). ER 0012-13 (¶¶ 51-56).

[348 I0 0029 MTN DOC

-3-

As a result of the Illegal Immigrant Hiring Scheme, Plaintiffs, who are

legally entitled to work in the U.S., were paid wages "that are substantially

depressed," that is, "below the wage rate at which a labor market comprised of

workers legally entitled to work - namely, one without the operation of the Illegal Immigrant Hiring Scheme, would be set." ER 0012 (¶¶ 46-47). According to the

complaint, these damages - Plaintiffs' depressed wages - were the intended and

"direct" result of the Illegal Immigrant Hiring Scheme. ER 0013 (¶ 56).

Plaintiffs further alleged that the Illegal Immigrant Hiring Scheme was

facilitated through Matson and Zirkle's use of Selective Employment Agency, Inc.

("Selective") as a "front company" for the recruitment and employment of the

illegal immigrants at depressed wages. ER 0002 (¶ 4). Plaintiffs named Selective

as a member of the association-in-fact

enterprises (with Zirkle and Matson), and

sued Selective in Count II for civil conspiracy under Washington State common law. ER 0011, 0013-14 (¶¶ 45, 58-62). Plaintiffs did not name Selective as a

defendant in the RICO count. ER 0010-11 (¶¶ 40-45).

] 348.10 0029 MTN,DOC

-4-

B.

Statement of the Case

The district court granted Zirkle and Matson's motion to dismiss Count 1

with prejudice, and without leave to amend, on September 27, 2000. 2 ER 0047-77.

The district court also granted Selective's motion to dismiss for lack of subject matter jurisdiction because it concluded pendent party jurisdiction violated U.S.

Const., art. III. Id.

After the district court dismissed the complaint without leave to amend,

Plaintiffs filed a motion for reconsideration

pursuant to Fed. R. Civ. P. 59(e) and

for leave to file their proposed First Amended Complaint ("FAC"), which was

attached. ER 0078-115. The FAC reiterated the facts pled in the first complaint with the additional allegations that the Illegal Immigrant Hiring Scheme was

perpetrated by certain additional unnamed fruit companies, all of whom relied

upon Selective as a "front company" for recruiting and employing illegal immigrants at sub-market, depressed wages. ER 0099 (¶ 4). Additionally, the

FAC alleged that these named and unnamed employers, "comprise a large

percentage of the fruit orchards and packing houses in the area, and therefore affect

wages throughout the labor market for apple pickers and fruit packers...."

ER 0100

2 However, the district court "remanded" the case to state court pursuant to the

theory that the Illegal Immigrant Hiring Scheme constituted under Washington common law. ER 0072.

a civil conspiracy

1348,10 0029 MTN DOC

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(¶ 5). As a result, the FAC alleged the Illegal Immigrant Hiring Scheme "stifled and suppressed" competition for wages. Id.
The district court denied Plaintiffs' motion to reconsider its dismissal with prejudice. ER 0123-130. The district court also denied plainliff's motion for leave to file the FAC. ER 0124.
Plaintiffs then timely filed their notice of appeal. ER 0131-132.

IV. SUMMARY OF ARGUMENT

A.

The District Court Applied the Wrong Legal Standard In Determining

Plaintiffs Lack Standing to Sue Under RICO

The district court concluded Plaintiffs lack standing to sue under RICO because their claim for depressed wages was "too speculative to confer standing." ER 0064-65. The district court reached this conclusion because it believed

Plaintiffs would be unable to prove the amount of damages caused by defendants'

alleged conduct (part two of the Supreme Court's standing requirement as

enunciated in Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268

(1992). ER 0068. In fact, Itolmes does not require a plaintiffto plead in its

complaint either the amount of its damages nor that the damage was caused solely

by the alleged acts of racketeering.

This Court has never taken the position

advanced by the district court.

1348 10 0029 MTN DOC

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B.

The District Court Improperly

Imposed a Heightened Pleading

Standard on Plaintiffs

Moreover, the district court's reliance on Imagineering,

Inc. v. Kiewit Pac.

Co., 976 F.2d 1303 (9 _hCir. 1992) for the proposition that "district courts are

required to subject cases where the plaintiff's loss was not complete to an even

higher standard [of pleading]" is unsupported by the Imagineering

decision.

ER 0126. Simply put, the Imagineering

decision did not alter this Court's view

that Fed. R. Civ. P. 8(a) "means what it says" when it requires only "a short and plain statement of the claim." Lee v. City of Los Angeles, 250 F.3d 668 * 10 (9 lh

Cir. 2001).

C.

The District Court Refused to Take As True Plaintiff's Allegations

Regarding

Causation

Plaintiffs alleged they were damaged "as a direct result of the Illegal Immigrant Hiring Scheme." ER 0013 (¶ 56), ER 0111 (7 54). The district court refused to take this allegation as true and instead theorized that plaintiffs' wages are determined by "[a] wide range of factors," making Plaintiffs' case "extremely difficult" to prove. ER 0067. Thus, reasoned the district court, defendants were entitled to dismissai with prejudice.

This reasoning is Contrary to Ninth Circuit law. See Knevelbaard Dairies v.

KrafiFoods,

Inc., 232 F.3d 979, 991 (9 th Cir. 2000) (complaint's

allegation as to

1348.10 0029 MTN DOC

-7-

causation was required to be taken as true, and district court erred in considering

defendant's contention that damages were caused by "independent

factors" and

were thus too "speculative");

cf, Story Parchment Co. v. Paterson Parchment

Paper Co., 282 U.S. 555,563 (1931) ("[w]here the tort itsetf is of such a nature as

to preclude the ascertainment

of the amount of damages with certainty, it would be

a perversion of fundamental principles of justice to deny all relief to the injured

person, and thereby relieve the wrongdoer from making any amend for his acts").

D.

Pendent Party Jurisdiction

Is Not Unconstitutional

The district court concluded that this Court's decision in Ayala v. United States, 550 F.2d 1196, 1200 (9 th Cir. 1977) stands for the broad proposition that

"pendent party jurisdiction in any form simply exceed[s] the scope of Article 1II

[of the Constitution]."

ER 0072. However, this Court has suggested that it will no

longer take that position in light of the enactment 28 U.S.C. § 1367 in 1990, which

specifically provides for pendent party jurisdiction in the federal courts. See Yanez v. United States., 989 F.2d 323,327, n.3 (9 th Cir. 1993). Thus, the district court

erred in granting Selective's motion to dismiss for lack of subject matter

jurisdiction.

ER 0077.

1348.10 0029 MTN.DOC

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V.

ARGUMENT

A.

Standard of Review

"When a district court dismisses a claim pursuant to a Rule 12(b)(6) motion, we evaluate the complaint de novo to decide whether it states a claim upon which relief could be granted." Lee v. City of Los Angeles, 250 F.3d at *9 (internal quotations omitted).
Similarly, this Court conducts de novo review of a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1), see Crist v. Leippe, 138 F.3d 801, 803 (9 th Cir. 1998), which is the same standard under which this Court reviews a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), see Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9 th Cir. 1998). At this stage in the proceedings, this Court takes the allegations in Plaintiffs' Complaint as true. See Big Bear Lodging Ass 'n v. Snow Summit, Inc., 182 F.3d 1096, 1099 (9 th Cir. 1999).

B.

Plaintiffs Have Standing to Sue Under RICO for Their Depressed

Wages

"A violation under § 1962(c) [of RICO] requires proof of'l) conduct 2) of an enterprise (3) through a pattern (4) of racketeering activity.'" Howard v. America Online, Inc., 208 F.3d 741,746 (9 th Cir.), cert. denied, 2000 U.S. Lexis

5208 (2000) (citation omitted). Additionally, a civil RICO plaintiff must satisfy

1348 10 0029 MTN.DOC

-9-

the requirements of § 1964(c), requiring that the plaintiff have been damaged "in his business or property by reason of a violation of § 1962..."

Plaintiffs' complaint easily satisfies these standards.

1.

Plaintiffs Have Alleged Proximate Cause Under the Factors

Enunciated

in Associated General Contractors

("A GC") _

The Supreme Court has held that in enacting RICO, Congress intended the

"by reason of' requirement of § 1964(c) to be interpreted in the manner of

identical language used "in § 7 of the Sherman [Antitrust] Act, and later in the

Clayton Act's § 4 .... It used the same words, and we can only assume it intended

them to have the same meaning that courts had already given them .... Proximate

cause is thus required." Hohnes, 503 U.S at 268; see also D. Smith, Civil RICO,

(2000) § 6.04 at 86 ("courts grappling with RICO standing issues should focus on

antitrust standing principles and, where appropriate, extend them to RICO

litigation.") Accordingly, this Court "requires a showing that the conduct constituting the [RICO] violation both directly and proximately caused the alleged

injury." See, e.g., Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1117 (9 th Cir.

1999) (citation omitted).

3 Associated General Contractors Carpenters, 459 U.S. 519 (1983).

Inc. v. California State Council of

1348. I 0 0029 MTN.DOC

-10-

Thus, in analyzing whether a plaintiff has standing to sue under RICO, a court must "examin[e]... claims according to the proximate cause factors set forth in A GC and Holmes: the directness of the injury, the speculative nature of the harm, and the risk of duplicative recovery and complexity of apportioning damages." Association of Wash. Pub. Hosp. Districts v. Philip Morris, Inc., 241 F.3d 696, 703 (9 th Cir. 2001) ("AWP"). As demonstrated below, Plaintiffs satisfy each of these criteria.

a.

Plaintiffs have alleged direct injury

The direct injury factor of proximate causation is an inquiry as to "tile

presence of others more immediately harmed who could bring the action." See,

e.g., Bhan v. NMEHospitals,

Inc., 669 F. Supp. 998, 1013 (E.D. Cal. 1987), aff'd

after remand, 929 F.2d 1404 (9 th Cir. 1991); AWP, 241 F.3d at 702 (direct injury is

not "derivative in nature"); accord, Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 238-39 (2d Cir. 1999) ("[T]he critical question

posed by the direct injury test is whether the damages a plaintiff sustains are derivative of an injury to a third party. If so, then the injury is indirect, if not, it is

direct"), cert. denied, 528 U.S. 1080 (2000); cf, Holmes, 503 U.S. at 544 ("Thus, a

plaintiff who complained of harm flowing merely from the misfortunes visited

1348, [0 0029 MTN.DOC

-11-

upon a third person by the defendant's acts was generally said to stand at too remote a distance to recover").
The complaint alleged, in relevant part:

Plaintiffs and members of the Class have been damaged by reason of defendants' RICO violations because they have been employed by Matson and Zirkle at wages

which were depressed as a direct result of the Illegal Immigrant Hiring Scheme. Plaintiffs and members of the Class were the intended and direct victims of defendants'

RICO scheme and their injury, working at depressed

wages, was both intended and foreseeable.

[ER 0013

(¶ 56)1

Defendants contended the complaint did not state a claim of direct injury

because "there is no allegation the plaintiffs were paid less than other similarly

situated workers in other similarly situated agricultural facilities..." ER 0036. This

assertion misconstrues the meaning of "direct injury." Whether Plaintiffs were

paid less than other workers is irrelevant to the question at hand; namely, whether

Plaintiffs' alleged injury - depressed wages - is derivative of an injury to a third

party. Defendants did not allege there was any such third party, nor did they cite any authority in support of their argument as to direct injury.

The district court was therefore correct when it concluded, "plaintiffs have

stated a claim that they are the direct victims of defendants' illegal hiring scheme."

134g.10 0029 MTN DOC

-12-

ER 0063. 4 Thus, Plaintiffs alleged direct injury, which is considered the "central

element" of the proximate causation analysis. Holmes, 503 U.S. at 544-545; A WP, 241 F.3d at 701.

b.

Plaintiffs' damages are not speculative

This Court has sometimes discussed the "speculativeness"

of injury in its

proximate causation analysis. See Oregon Laborers-Employers

Health & Welfare

Trust Fund v. Philip Morris, 185 F.3d 957, 965 (9 th Cir. 1999), cert. denied, 528

U.S. 1075 (2000); AWP, 241 F.3d 696, 703. Speculativeness

is comprised of'two

elements: (1) whether the injury is direct, and (2) whether the injury "may have

been produced by independent factors." American Ad Mgmt., Inc. v. General Tel.
Co.,/90 F.3d 1051, 1059 (9 th Cir. 1999). 5

4 However, in the Order Denying Reconsideration

(ER 00123-130) the district

court confused direct injury (which is the relevant inquiry) with the notion that

directness pertains to whether or not the plaintiffs had a "direct contractual

relationship with defendants."

ER 0128. Interpreting the direct injury test in this

erroneous fashion, the district court determined that a "direct relationship ... does

not necessarily mean that proximate cause for RICO purposes has been

established."

Id. As has been stated, supra, the Supreme Court and this Court hold

that "direct injury" is the "central element" of proximate causation. In fact, as

Plaintiffs argued, they were, and remain, unaware of a decision by any court in

which a RICO case has been dismissed on standing grounds where a direct injury

has been pled. Plaintiffs' Motion for Reconsideration

at ER 0088. Neither

defendants nor the district court cited any such case.

5 The third AGC factor in the proximate causation analysis asks whether the alleged harm is speculative. AGC, 459 U.S. at 542. Holmes relied upon AGC for its proximate causation analysis. See Holmes, 503 U.S. at 545. However, neither the Supreme Court nor this Court has ever held that an antitrust or RICO plaintiff must satisfy all of the AGC factors. See, e.g., Bhan v. NME Hospitals, Inc., 772

1348 10 0029 MTN DOC

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Here, the district court concluded that the Plaintiffs' claim was speculative

because of the possibility that Plaintiffs' alleged damages could have been caused

by other factors, even though the complaint pled defendants were the sole and

proximate cause. ER 0013 (¶ 56). This allegation should have ended the inquiry,

because a district court may not substitute its notions of causation for those alleged

in the complaint. See, e.g., Knevelbaard,

232 F.3d at 991 (dismissal reversed

because district court refused to take allegation of causation as true and improperly

determined the injury was "speculative"

as the result of "independent

factors");

accord, In re Walfarin Sodium Antitrust Litig., 214 F.3d 395,398 (3d Cir. 2000)

(reversing dismissal of antitrust complaint premised upon district court's

"consideration

of factual assumptions de hors" invoking potential defenses not

raised in complaint). The In re Warfarin court rejected the notion that a district

court can consider facts or theories "gleaned from [defense] counsel's argument

and from its own experience, factors not contemplated

by the dictates of Rule

12(b)(6)." Id. Instead, the Third Circuit held, in the context of a motion to dismiss

the district court may only take notice of those criteria specifically permitted by

F.2d 1467, 1470, n.3 (9th Cir. 1985) (noting that "the Supreme Court did not

explicitly state that a plaintiffmust

satisfy all of the [AGC] thctors, or indeed, any

particular factor..."); American AdMgmt., Inc., 190 F.3d at 1055 ("Generally no

single factor is decisive") (internal quotations and citation omitted). Nevertheless, the district court ignored this multi-factor analysis and concluded, "the plaintiff's

alleged injury is too speculative to confer standing." ER 0064.

134g. I 0 0029 MTN.DOC

-14-

Fed. R. Evid. 201(b) (judicial notice). Id. Hence, the district court's statement that

it, "cannot simply pretend that other relevant factors do not exist," ER 0129, was

improper and inconsistent with Fed. R. Civ. P. 12(b)(6).

e.

This Court permits damages to be speculative at the

pleading stage

In any event, there is 11oper se rule against speculativeness,

especially at the

pleading stage. Thus, it is well established that the speculative nature of the

plaintiff's damages will not defeat proximate causation, or standing to sue, unless

the damages are "so speculative as to call into question the existence of a link

between the defendant's allegedly anticompetitive behavior and the plaintiff's

injury." ]d. This rule is applied in cases where damages are caused by multiple

factors. See, e.g., Yellow Pages Cost Consultants, Inc. v. GTE Directories Corp.,

951 F.2d 1158, 1163 (9 th Cir. 1991) (noting that an antitrust "plaintiff... need not

negative all possible explanations for his decline in profits[,]" this Court held that district court "applied too strict a standard" in concluding plaintiffs damages were

speculative because they may have been caused by other factors), cert. denied, 504

U.S. 913 (1992); Hasbrouckv.

Texaco, Inc., 842 F.2d 1034, 1043 (9 th Cir. 1987)

(affirming antitrust damages where defendant was the "material cause of injury,"

but other causes, including market forces, existed), affd, 496 U.S. 543 (1990); cf, Knutson v. Daily Review, Inc., 548 F.2d 795, 811 (9 th Cir. 1976) (requirement that

1348.10 0029 MTN DOC

-15-

plaintiffs prove causation and damages absent any speculation as to complicated

economic forces would amount to a "nearly impossible burden"), cert. denied, 433

U.S. 910 (1977); Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1215 (9 m Cir. 1983)

(affirming antitrust damages challenged on basis that injury could have been

caused by "sources other than Mobil's illegal conduct" because the law only

requires defendant's conduct be a "substantial factor"), cert. denied, 471 U.S. 1007

(1985). 6

In the employment context, this Court has specifically held, "Suits for

damages by persons wrongfully discharged are common; courts are accustomed to

assessing such damages; they are neither unduly speculative nor difficult to

calculate, obviating another source of judicial concern." Ostrofe v. H.S. Crocker

Co., 670 F.2d 1378, 1385, n.20 (9 'h Cir. 1982), aff'd after remand, 740 F.2d 739

(9 th Cir. 1984). While Plaintiffs in the case subjudice do not allege wrongful

termination, the Ostrofe decision supports a finding that Plaintiffs have adequately

alleged injury here. Ostrofe is squarely irreconcilable

with the district court's

conclusions.

Indeed, if the district court's analysis of the Plaintiffs' claims were

6 For many years this was known as the "Story-Flintkote

criteria." See Flintkote

Co. v. LysJ']ord, 246 F.2d 368, 391 (9 th Cir.) ("liberality in proving damages [is]

"grounded in logic and sound policy", following Supreme Court's rule that a

"defendant whose wrongful conduct has rendered difficult the ascertainment

of the

precise damages suffered ... is not entitled to complain that they cannot be measured with the exactness and precision."), cert. denied, 355 U.S. 835 (1957).

1348.10 0029 MTN DOC

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appropriate, this Court would have affirmed the dismissal in Ostrofe because the

causes of alleged "wrongful" termination can be wide ranging, i.e., the employee's

health, disability, work environment, personal relationships with colleagues,

discrimination

based on gender, age, absenteeism, economic conditions affecting

the labor market, etc. If courts were permitted tO engage in such a far-reaching

analysis, few, if any plaintiffs would have standing to sue under any legal theory.

Accordingly, the district court's conclusion that claims for depressed wages

are beyond the capabilities of the judicial system was erroneous and warrants reversal.

2.

Defendant need not be the sole cause of the plaintiffs' injury

Neither RICO nor antitrust law requires a plaintiff to allege in his complaint,

nor subsequently prove, that the defendant was the sole cause of his damages. 7

7 Although the Ninth Circuit has not squarely faced this question in a RICO

case, other circuits have, and have followed antitrust law. See, e.g., Cox v.

Administrator

United States Steel & Carnegie, 17 F.3d 1386, 1399 (11 th Cir. 1994)

("A proximate cause is not, however, the same thing as a sole cause .... It is beside

the point whether the depressed condition of the steel industry also contributed to

the [injury]") (citations omitted); Chisolm v. TranSouth Fin. Corp., 95 F.3d 331,
"lh
337 (4 Cir. 1996) ( Inasmuch as an injury may have more than one proximate

cause, our rule that reliance be shown in civil RICO fraud actions does not also

dictate that the fraud be the sole legal cause of the plaintiff's injury, so long as it is

a legal cause"); Brokerage Concepts v. U.S. Healthcare, Inc., 140 F.3d 494, 521

(3d Cir. 1998) (RICO damages properly entered against defendant because injury

was "not ... more appropriately attributable to an intervening cause that was not a

predicate act under RICO"); cf., Hecht v. Commerce Clearing House, Inc., 897

F.2d 21,23-24 (2d Cir. 1990) ("the RICO pattern or acts proximately cause a

plaintiff's injury if they are a substantial factor in the sequence of responsible

1348 10 0029 MTN DOC

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This accords with the cases interpreting standing under U.S. Const., art. II, antitrust

and the common law, all of which hold that a plaintiff has standing to sue even if

the defendant is not the sole cause of his injury. See, e.g., l&lho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9 th Cir. 1992); accord, 8 J. von

Kalinowski, ANTITRUST LAWS AND TRADE REGULATION, § 161.02[2] at 11 (2000)

("As a basic principle, the antitrust violation must be a material or direct cause of

plaintiff's injury, although it need not be the only cause"); RESTATEMENT

(SECOND) OF TORTS, § 875 (1979) ("Each of two or more persons whose tortuous

conduct is a legal cause of a single and indivisible harm to the injured party is

subject to liability to the injured party for the entire harm").

Thus, the district court's conclusion in the case subjudice that "the

plaintiffs' main flaw is their inability to concretely establish the degree to which

their wages have been affected by the defendants' alleged violations", ER 0066, was not a "flaw" at all. Plaintiffs ultimately must establish the degree to which

defendants are responsible for their injuries in order to recover. However, there is

absolutely no requirement that they do so in their complaint. (Nevertheless,

the

causation, and if the injury is reasonably foreseeable or anticipated as a natural

consequence").

For this Court to reach the opposite conclusion would not only be

inconsistent with the treatment accorded this issue by every other circuit to

consider it, but would be inconsistent with the plain language of RICO that it is to

"be liberally construed to effectuate its remedial purposes." Pub. L. 91-452

§904(a), 84 Stat. 947.

1348. I0 0029 MrN DOC

-18-

complaint and FAC alleged defendants had directly and proximately caused their

injuries. [ER 0013 (¶ 56)].) Thus, Plaintiffs satisfied all of the rules for pleading

damages, except the district court's, which were insurmountable

because the court

refused to take plaintiff's allegations as true and misconstrued this Court's holding

in Imagineering.

1

The law does not require the certainty of pleading damages

demanded by the district court here

The following cases apply the established rules of pleading and proving

damages, which the district court refused to follow in this case.

a.

The common law does not require certainty

Where the tort itself is of such a nature as to preclude the

ascertainment

of the amount of damages with certainty, it

would be a perversion of fundamental principles of

justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his

acts. In such case, while the damages may not be determined by mere speculation or guess, it will be

enough if the evidence show the extent of the damages as

a matter of just and reasonable inference, although the

result be only approximate.

The wrongdoer is not

entitled to complain that they cannot be measured with the exactness and precision that would be possible if the

case, which he alone is responsible otherwise.

for making, were

Story Parchment Co., 282 U.S. at 563; see also, Bigelow v. RKO Radio Pictures,

Inc., 327 U.S. 251,265 (1946) ("The most elementary conceptions of justice and

public policy require that the wrongdoer shall bear the risk of the uncertainty

1348 10 0029 MTN.DOC

-19-

which his own wrong has created .... That principle is an ancient one ... and is

not restricted to proof of damage in antitrust suits...") (citations omitted); Zenith

Radio Corp. v. Hazeltine Research, 395 U.S. 100, 114, n.9 (1969) ("It is enough

that the illegality is shown to be a material cause of the injury; a plaintiff need not

exhaust all possible alternative sources of injury in fulfilling his burden of proving

compensable

injury...,,).8

The Washington Supreme Court has applied the same principle in tort and

contract cases. See, e.g., Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53

Wn.2d 96, 99-100_ 330 P.2d 1068, 1070 (1958) ("A party who has breached a

contract or committed a tortious act is generally not permitted to escape his

liability in damages therefor simply by reason of difficulty in the ascertainment

of

the damage to the plaintift;" permitting calculation of damages by "a pure guess" if

necessary); Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 718,845

P.2d 987, 990 (1993)("[D]amages...

[must] be proved with whatever definiteness

and accuracy the facts permit, but no more."). 9

8 Moreover, at common law, proximate causation was not required in cases of intentional torts, which is what Plaintiffs essentially allege here. AGC, 459 U.S. at 548 (Marshall, J. dissenting) ("An inquiry into proximate cause has traditionally been deemed unnecessary in suits against intentional tortfeasors.")
9 Apart from the application of antitrust law, which has its own foundation in the common law of damages, the Supreme Court has held that in enacting RICO, congress intended to incorporate into the damages provision, § 1964(c), "the

1348.10 0029 MTN.DOC

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Plaintiffs cited these cases to the district court but to no avail. ER 0089.

The district court erroneously failed to consider, or even mention, these precedents. ER 0123-130.

b.

In antitrust law and under RICO, damages are liberally

assessed

In the analogous area of antitrust violations, this Court has ruled that

damages are held to a less stringent standard of proof than at common law. E.g., Flintkote, 246 F.2d at 391 ("A study of the adjudicated cases in this area readily dispels any impression that this question of damages is governed by an application of the common law rule of reasonable certainty. The cases have long since departed from this rule in antitrust litigation"). Because proximate causation in RICO cases is assessed under the same AGC factors that govern the antitrust causation inquiry, see, e.g., ttolmes, 503 U.S. at 268, the same liberal causation rules that govern the antitrust inquiry should be applied in RICO cases.

cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Beck v. Prupis, 592 U.S. 494, 501 (2000); accord, Reynolds v. East Dyer Dev. Co., 882 F.2d 1249, 1253 (7 th Cir. 1989) ("Civil RICO is a statutory tort, so causation principles that generally apply in tort cases apply in civil RICO cases").

1348 100029 MTNDOC

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c.

The governing standards are still more liberal in proving

the amount of damages

This Court follows the well-established

rule that the amount of damages is

subject to a lesser standard of proof than the fact (or causation) of damage itself.

See, e.g., Hasbrouck v. Texaco, Inc., 634 Supp. 34, 41 (E.D. Wash. 1985) ("once a

plaintiff has proven an antitrust injury, a lesser burden is faced in quantifying the

damages), all'd, 830 F.2d 1513 (9 th Cir. 1987); Knutson, 548 F.2d at 811 ("The

Supreme Court has also established a relaxed standard for proving the amount of damages in an antitrust case once the fact of damage has been shown," relying upon Story Parchment, Bigelow and Zenith). See also, 2, I. Scher, ANTITRUST ADVISER, § 10.49 at 101 (4 th ed. 1999) ("Generally, the standard of proof for the

amount of damages is less stringent than for the fact of injury.")

d.

The liberal standards governing damages are further

relaxed at the pleading stage

The very lenient standards discussed above are applicable in proving

damages. At the pleading stage, an even more liberal standard applies. See, e.g.,

Lujan v. Defenders of Wildlife, 504 U.S. 555,561 (11992) ("At the pleading stage,

general factual allegations of injury resulting from the defendant's conduct may

suffice, for on a motion to dismiss 'we presume that general allegations embrace

1348. I0 0029 MTN,DOC

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those specific facts that are necessary to support the claim.'"); see also N.O.W.v.

Scheidler, 510 U.S. 249, 256 (1994) (same principle applied to RICO complaint).

e.

lmagineering

does not bar plaintiffs' claims here

The Imagineering

plaintiffs, subcontractors

on construction projects, alleged

that if (1) a particular general contractor - an unsuccessful bidder on a particular

public works project- had been awarded the project instead of the defendant; (2) this unsuccessful bidder had then selected the plaintiffs as its subcontractors,

and (3) plaintiffs had successfully completed their subcontracts, then (4) the

plaintiffs would have earned undisclosed profits. Imagineering,

976 F.2d at 1305-

06. Thus, the plaintiff's theory necessitated a finding that at least three key

contingencies

would have redounded in their favor before they would have been

entitled to any damages.

In dismissing the plaintiffs' RICO complaint in Imagineering,

the district

court reasoned that "[b]ecause the [plaintiffs] could not set forth a reasonable

•business expectancy in particular subcontracts, they could not establish that they were injured by reason of [defendant's] purported RICO violation." Id. at 1306.

This Court affirmed the dismissal, concluding that the plaintiffs could not

"establish" the first contingency in their theory, i.e., that defendant would have

been awarded the prime Contract. Plaintiffs' theory was premised upon the

1348,10 0029 MTN DOC

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assertion that had defendant not improperly obtained the prime contract it would

have been awarded to their prime contractor because it was the next lowest bidder.

Id. at 1310. However, as this Court pointed out, Washington law did not require

prime contracts to be awarded to the lowest bidder. Thus, this Court concluded, "it

is not at all clear that [the plaintiffs] suffered such an injury .... It is impossible to

determine ... whether the plaintiffs are claiming loss of opportunity to realize

profits or loss of specific identifiable profits." Id. at 1311.

Thus, the Imagineering

court was uncertain as to whether the plaintiffs had

alleged an injury at all (which this Court characterized as proof of a "concrete

financial loss"). Id. at ! 310. See Pharmacare v. Caremark, 965 F. Supp. 1411,

1420 (D. Haw. 1996) ("Thus, the Plaintiffs in Imagineering

were asserting a two-

tier injury, i.e. if Defendant did not act improperly, Firm A would have been

picked and in turn Firm A would have picked us.") As the authorities discussed supra indicate, while courts will relax the burden on proving the amount of

damages, a plaintiff must still allege the fact of damage in order to have standing. See also, In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 73 (9 th Cir.)

("Difficulty of ascertainment

[of damages] is no longer confused with right of

recovery"), cert. denied, 444 U.S. 900 (1979). Therefore, the dismissal of the

complaint in Imagineering

was consistent with this Court's precedent. In contrast,

1348,10 0029 MTN DOC

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dismissal of Plaintiffs' complaint in this case was not consistent with precedent,

and can only be affirmed through a sweeping rejection of all of the antitrust

precedents discussed above. 10

Here, Plaintiffs allege that an actual injury has already occurred. They

received depressed wages. Thus, the complaint and FAC alleged concrete

financial loss. ER 0013 (¶ 56), ER 0111 (¶ 54). Accordingly, the district court's

statement, "Here, as in Imagineering

and Sheperd, the plaintiffs' main flaw is their

inability to concretely establish the degree to which their wages have been affected by the defendants' alleged violations," ER 0066, is an erroneous application of the

lmagineering

holding. 11

lo Imagineering

is also distinguishable

from the case subjudice because the

Court expressly concluded the complaint did not state a claim for direct injury and

did not satisfy the Holmes proximate causation test. Imagineering,

976 F.2d at

1311. Here, in contrast, the district court concluded the complaint stated a claim of

direct injury. ER 0063.

J l The district court's reliance on Sheperd v. American Honda Motor Co., 822

F. Supp. 625 (N.D. Cal. 1993) is erroneous for two reasons. First, as in

Imagineering,

the plaintiff did not establish damage had occurred. Sheperd, 822 F.

Supp. at 632 ("the Sheperd plaintiffs encountered only the possibility of

diminished profits) (emphasis added). Secondly, the district court was not bound

by the unappealed opinion of another district judge. See, e.g., Stairmaster

SportsMedical

Prods. v. Pacific Fitness Corp., 916 F. Supp. 1049, 1056 (W.D.

Wash. 1996) ("This Court, however, is not bound by the decision of another district court..."); accord, Abbs v. Sullivan, 963 F.2d 918, 924 (7 _hCir. 1992) ("the

unappealed holdings of district judges have no precedential weight[,] that is, no

significance as authority").

1348.10 0029 MTN.DOC

-25 -

Additionally, the district court's subsequent statement that, "plaintiffs lost

out only on the possibility that they could earn higher wages if not for the illegal

activity of the defendants[,]"

ER 0127, demonstratesa

more fundamental

misunderstanding

of both the facts as alleged in the Complaint and Fed. R. Civ.

P. 8. In fact, the complaint alleged that Plaintiffs' wages were depressed as a result

of the illegal immigrant hiring scheme, not that their wages wouM have been depressed had they accepted (or rejected) employment with defendants (or other

potential employers).

ER 0013 (¶ 56). Secondly, as discussed above, the district

court was required to accept the allegations of the complaint as true and interpret them in the light most favorable to plaintiffs. Because the district court did not do

so, reversal is required. See, e.g., Polandv. Stewart, 117 F.3d 1094, 1103 (9 th Cir.

1997) ("An abuse of discretion is a 'plain error ... a judgment that is clearly against the logic and effect of the facts as are found.'"), cert. denied, 523 U.S. 1082

(1998).

4.

Plaintiffs satisfy the remaining A GC Factors

Neither the defendants nor the district contended that Plaintiffs'

complaint

ran afoul of the remaining AGC proximate causation factors: duplicative damages

1348 10 0029 MTN.DOC

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or the need to apportion damages. Thus, these AGC factors, as well the others, which have been examined, supra, weigh in favor of standing.12

C.

IMA GINEERING

Does Not Permit District Courts to Impose a

"Higher Standard"

on Plaintiffs Alleging "Incomplete"

Losses

The district court justified its dismissal by stating its belief that "after

]magineering

it must take an especially hard look at the concreteness of the i nj ury

alleged in a case, like this one, where the plaintiffs did not suffer a total financial

loss in their dealings with tile defendants."

ER 0126. Tile district court did not

cite any language from ]magineering directly supporting either its assertion that

Plaintiffs' alleged injury was not concrete, or its assertion that claims not alleging

"total financial loss" should receive more scrutiny than other claims.

1.

Plaintiffs allege a "Concrete Injury"

As indicated, supra, imagineering

simply held that '"injury' [under RICO]

requires proof of concrete financial loss." Imagineering,

976 F.2d at 1310. As

Plaintiffs argued, the concrete injury requirement pertains to the fact of injury, not

to causation or the amount of damages, which was the basis for the Imagineering

court's conclusion as to concreteness.

ER 0119-120. Compare, in re American

12By contrast, the Imagineering

court concluded that the plaintiff's complaint

would.have raised the problem of"apportion[ing]

damages among the

subcontractors

and prime contractors without permitting multiple recoveries."

Imagineering,

976 F.2d at 1312.

1348 10 0029 MTN.DOC

- 27 -

Honda Motor Co. Dealership Realtors Litig., 941 F. Supp. 528,540 (D. Md. 1996)

(Ninth Circuit's "concrete loss" requirement for RICO damages "restricts standing

to plaintiffs alleging that they have suffered a specific, tangible financial injury,"

rejecting defense claims that lost profits were too speculative), with, Oscar v. University Students Co-Operative Ass 'n., 965 F.2d 783,786 (9 th Cir.) (denying

standing where claims for "physical and emotional injuries" were not concrete),

cert. denied, 506 U.S. 1020 (1992). Thus, Plaintiffs' claim for depressed wages is concrete. As there is no authority interpreting the use of the word "concrete" in the

manner suggested by the district court, the court erred in finding that Plaintiffs'

damages were not "concrete."

2.

The district court improperly demanded that plaintiffs allege

"Total Financial Loss"

Similarly, there is no authority supporting the district court's decision to

subject Plaintiffs' claim to heightened scrutiny because Plaintiffs did not allege

"total financial loss." To the contrary, Fed. R. Civ. P. 8(a)(2) merely requires the

complaint to contain "a short and plain statement of the claim." District courts

may not impose heightened pleading requirements..See,

e.g., Leatherman v.

Tarrant County Narcotics Intelligence & Coordination

Unit, 507 U.S. 163, 168

(1993) ("We think that it is impossible to square the 'heightened pleading

standard' ... with the liberal system of 'notice pleading' set up by the Federal

1348 10 0029 MTN DOC

-28 -

Rules"); accord, Lee, 250 F.3d 668 ("The Supreme Court has stated that 'the Rule

[8(a)] means what it says,"' citing Leatherman and rejecting heightened pleading standard imposed by district court); Gilligan v. Jamco Dev. Corp., 108 F.3d 246,

249 (9 th Cir. 1997) (reversing dismissal because "district court asked far more of

[plaintiffs] than the federal rules require at the pleading stage").

There is no Ninth Circuit or Supreme Court authority supporting the district

court's interpretation

oflmagineering.

In fact, the concept of a vague, judicially

created bar to RICO standing has been emphatically rejected. Cf, Sedima S.P.R.L.

v. Imrex Co., 473 U.S. 479, 495 (1985) ("There is no room in the [RICO] statutory

language for an additional, amorphous 'racketeering injury' requirement").

Thus,

the district court's new requirement - that plaintiffs must plead "total financial

loss" or face heightened scrutiny - raised the bar well beyond the requirements of

Fed. R. Civ. P. 8(a), and therefore was error.

D.

Supplemental

Jurisdiction

is Constitutionally

Proper

In addition to dismissing Plaintiffs' RICO claim against Zirkle and Matson,

the district court found that it lacked subject matter jurisdiction over defendant Selective. ER 0077. The court did so even though it did not question that

Selective was a pendant party defendant in Plaintiffs' conspiracy claim under the

common law of the State of Washington.

Because such jurisdiction is expressly

1342 |0 0(129 MTN.DOC

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provided in 28 U.S.C. § 1367, and because any constitutional

objections to that

statute are easily dispensed with, this Court should reverse that decision. In so

doing, this Court can make clear that the law in this Circuit is no different from the

other circuits that have found pendant party jurisdiction to be constitutional.

In 1990, Congress enacted 28 U.S.C. § 1367, providing "supplemental

jurisdiction"

over claims "that involve the joinder or intervention of additional

parties." Thus, as the statute provides, when a district court has original

jurisdiction of a case (as did the district court over Count I, as a federal question),

the court also has jurisdiction "over all other claims that are so related .... " Here, it

is undisputed that Count II of Plaintiffs' Complaint against Selective is related to Count I, as it arises from the same facts and controversy (the Illegal hnmigrant

Hiring Scheme). ER 0013-14 (¶¶ 57-62). Accordingly, the district court had

subject matter jurisdiction over Count II and over Selective.

As the district court recognized, "[t]his case presents the type of

supplemental jurisdiction that prompted Congress to enact § 1367: pendent party

jurisdiction."

ER 0070. The district court also recognized that, since the

enactment of § 1367, many courts have found that pendent party jurisdiction is

appropriate so long as the pendant party claim stems from a "common nucleus of operative fact" as enunciated by the United States Supreme Court in United Mine

1348.10 0029 MTN DOC

-30-

Workers of America v. Gibbs, 383 U.S. 715 (1966). See ER 0073-74, citing

Franceskin v. Credit Suisse, 2000 WL 719494, *4 (2d Cir. 2000); In re Prudential

Insurance Co., 148 F.3d 283 (3d Cir. 1997). Indeed, even district courts within

this Circuit have found pendent party jurisdiction appropriate under § 1367. See,

e.g., Ziegler v. Ziegler, 28 F. Supp. 2d 601,618-19

(E.D. Wash. 1998); Irwin v.

Mascott, 96 F. Supp. 2d 968 (N.D. Cal. 1999).

However, the district court believed that it was bound to find § 1367

unconstitutional

on the basis of this Court's decision in Ayala v. United States, 550

F.2d 1196, 1200 n.8 (9 th Cir. 1977) ("our difficulty with pendent party jurisdiction

is a constitutional

one under Article III.") Though this statement was dicta - since

the United States Supreme Court had ruled that pendant party jurisdiction was not appropriate in the absence of statutory authority which did not then exist _3- this

Court has never explicitly rejected the Ayala dicta. But see Yanez v. United States, 989 F.2d 323,327 n.3 (1993) (concluding pendant party jurisdiction was

inappropriate in the case before it which arose prior to the effective date of § 1367

since "the section is not retroactive.")

Plaintiffs respectfully submit that this Court should resolve the ambiguity

created by Yanez, and expressly find that 28 U.S.C. § 1367 can be constitutionally

J3 Aldinger v. Howard, 427 U.S. 1, 16-17 (1976).

1348 I0 0029 MTN DOC

-31 -

applied where, as here, the pendant party claim is closely related to the claim over

which the district court has an independent jurisdictional

basis. Accordingly,

the

decision of the district court finding that it lacked jurisdiction over defendant Selective should be reversed.

VI. CONCLUSION

For the reasons stated above, Plaintiffs respectfully request that this Court

(i) reverse the orders of the district court dismissing Plaintiffs' RICO claim for lack

of standing and denying Plaintiffs' Motion for Reconsideration;

(ii) reverse the

order of the district court dismissing Plaintiffs' civil conspiracy claim for lack of

subject matter jurisdiction and (iii) remand this case to the district court for further

proceedings.

DATED: June 28, 2001.

HAGENS BERMAN LLP

By 42------
St_ve W. Berman, WSBA No. 12536 Andrew M. Volk, WSBA No. 27639 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (206) 623-7292

1348, I 0 0029 MTN.DOC

-32 -

Howard W. Foster JOHNSON & BELL, LTD. 55 E. Monroe St., Suite 4100 Chicago, IL 60603 (312) 372-0770
Attorneys for Plaintiffs-Appellants

1348. I0 0029 MTN.DOC

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STATEMENT

OF RELATED CASES

Pursuant to the Ninth Circuit Rule 28-2.6, Counsel for plaintiffs-appellants are not aware of any related cases pending in this Court.

DATED: June 28,2001.

HAGENS BERMAN LLP

J
By
St'-g'_evWe . Berman, WSBA #12536 Andrew M. Volk, WSBA #27639 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (206) 623-7292
Howard W. Foster JOHNSON & BELL, LTD. 55 E. Monroe St., Suite 4100 Chicago, IL 60603 (312) 372-0770
Attorneys for Plaintiffs-Appellants

1348 10 0029 MTN DOC

CERTIFICATE

OF COMPLIANCE

Pursuant to the Ninth Circuit Rule 32(a)(7)(B)(i),

I certify that the

appellants' brief is double spaced in 14 point proportionally

spaced Times New

Roman typeface. The word count, excluding the cover page, table of contents,

table of authorities, proof of service, certificate of compliance and statement of

related cases, is 7,412.

DATED: June 28, 2001.

HAGENS BERMAN LLP

Steve W. Berman, WSBA #12536 Andrew M. Volk, WSBA #27639 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (206) 623-7292
Howard W. Foster JOHNSON & BELL, LTD. 55 E. Monroe St., Suite 4100 Chicago, IL 60603 (312) 372-0770
Attorneys for Plaintiffs-Appellants

1348 10 0029 M'I'N DOC

1 of 2 DOCUMENTS

Copyright

2001,

LEXIS

UNITED

STATES

Law Publishing,

All rights

CODE SERVICE a division
reserved.

of Reed Elsevier

*** CURRENT

THROUGH

P.L. 107-15,

APPROVED

6/5/01

***

TITLE

18. CRIMES

AND CRIMINAL

PROCEDURE

PART I. CRIMES

CHAPTER

96. RACKETEER

INFLUENCED

AND CORRUPT

ORGANIZATIONS

§ 1964.

Civil

remedies

18 USCS

§ 1964

.(2001)

Inc.

(a) The district

courts

of the United

States

shall

have jurisdiction

to prevent

and restrain

violations

of section

1962 of this chapter

by issuing

appropriate

orders,

including,

but not limited

to: ordering

any person

to divest

himself

of

any interest, restrictions

direct on the

or indirect,

in

future

activities

any or

enterprise; investments

imposing of any

reasonable

person,

including,

but not limited

to, prohibiting

any person

from engaging

in the same type of

endeavor

as the enterprise

engaged,

in, the activities

of which

affect

interstate

or foreign

commerce;

or ordering

dissolution

or reorganization

of any

enterprise,

making

due provision

for the rights

of innocent

persons.

(b) The Attorney

final

determination

General

may

thereof,

institute the count

proceedings may at any

under

this section.

Pending

time enter

such restraining

orders

or prohibitions,

or take such other

actions,

including

the acceptance

of

satisfactory

performance

bonds,

as it shall

deem proper.

(c) Any 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

and the cost

of the suit,

including

a reasonable

attorney's

fee, except

that no person

may

rely upon any conduct

that would

have been actionable

as fraud

in the purchase

or sale of securities

to establish

a violation

of section

1962.

The exception

contained

in the preceding

sentence

does not apply

to an action

against

any

person

that is criminally

convicted

in connection

with the fraud,

in which

case

the statute

of limitations

shall

start

to run on the date on which

the

conviction

becomes

final.

(d) A final

judgment

or decree

rendered

in favor

of the United

States

in any

criminal

proceeding

brought

by the United

States

under

this chapter

[18 USCS

§§

1961 et seq.]

shall

estop

the defendant

from denying

the essential

allegations

of the criminal

Offense

in any subsequent

civil

proceeding

brought

by the United

States.

LEXIS. NEXIS"

LEXIS-NEXIS°

LEXIS. NEXIS"

HISTORY:

(Added

Oct.

943; Nov. 3359.)

8, 1984,

P.L.

(As amended

Dec.

22,

15, 1970,

P.L. 91-452,

Title

IX,

98-620,

Title

IV, Subtitle

A, §

§ 901(a),

84 star.

402(24)

(A), 98 Stat.

1995,

P.L. 104-67,

Title

I, § 10"7, 109 Stat.

758.)

HISTORY;

ANCILLARY

LAWS AND DIRECTIVES

Amendments:

1984.

Act Nov.

8, 1984

appears

as 28 USCS § 1657

by the United

States

under

practicable final".

to the hearing

(applicable

as provided

by § 403 of such Act,

note),

in subsec.

(b), deleted

"In any action

this section,

the court

shall

proceed

as soon

and determination

thereof."

preceding

"Pending

which brought as

1995.

Act Dec.

18, 1995

(applicable

as provided

by § 108 of such Act, which

appears

as 15 USCS § 771 note),

in subsec.

(c), inserted

", except

that no

person

may rely upon

any conduct

that would

have been actionable

as fraud

in the

purchase

or sale of securities

to establish

a violation

of section

1962.

The

exception

contained

in the preceding

sentence

does not apply

to an action

against which

any person

that is criminally

case the statute

of limitations

convicted

in connection

with the fraud,

in

shall

start

to run on the date on which

the conviction

becomes

final".

LEXIS.NEXIS°

LEXIS-NEXIS"

LEXIS-NEXIS"

2 of 2 DOCUMENTS

Copyright

2001,

LEXIS

UNITED

STATES

Law Publishing, All rights

CODE SERVICE a division
reserved.

of Reed Elsevier

Inc.

*** CURRENT

THROUGH

P.L. 107-15,

APPROVED

6/5/01

***

TITLE

28. JUDICIARY

AND JUDICIAL

PROCEDURE

PART IV. JURISDICTION

AND VENUE

CHAPTER

85. DISTRICT

COURTS;

JURISDICTION

28 USCS

§ 1367

(2001)

§ 1367.

Supplemental

jurisdiction

(a) Except

as provided

in subsections

(b) and (c) or as expressly

provided

otherwise

by Federal

statute,

in any civil

action

of which

the district

courts

have original jurisdiction

jurisdiction, over all other

the district

claims

that

courts

shall

are so related

have

supplemental

to claims

in the

action

within

such original

jurisdiction

that they form part

of the same case

or

controversy

under

Article

III of the United

States

Constitution.

Such

supplemental

jurisdiction

shall

include

claims

that involve

the joinder

or

intervention

of additional

parties.

(b) In any civil

action

of which

the district

courts

have original

jurisdiction

founded

solely

on section

1332 of this title,

the district

courts

shall

not have

supplemental

jurisdiction

under

subsection

(a) over claims

by plaintiffs

against

persons

made parties

under

Rule 14, 19, 20, or 24 of the Federal

Rules

of Civil

Procedure,

or over claims

by persons

proposed

to be joined

as plaintiffs

under

Rule 19 of such rules,

or seeking

to intervene

as plaintiffs

under

Rule 24 of

such rules,

when exercising

supplemental

jurisdiction

over such claims

would

be

inconsistent

with the jurisdictional

requirements

of section

1332.

(c) The district

courts

claim

under

subsection

may decline (a) if--

to exercise

supplemental

jurisdiction

over a

(1) the claim

raises

a novel

or complex

issue

of State

law,

(2) the claim

substantially

predominates

over the claim

or claims

over which

the district

court

has original

jurisdiction,

(3) the district

court

has dismissed

all claims

over which

it has original

jurisdiction,

or

(4) in exceptional

circumstances,

there

are other

compelling

reasons

for

declining

jurisdiction.

(d) The period

of limitations

for any claim

asserted

under

subsection

(a), and

for any other

claim

in the same action

that is voluntarily

dismissed

at the same

time as or after

the dismissal

of the claim

under

subsection

(a), shall

be

tolled

while

the claim

is pending

and for a period

of 30 days after

it is

dismissed

unless

State

law provides

for a longer

tolling

period.

LEXIS. NEXIS"

LEXIS. NEXIS"

LEXIS"NEXIS"

(e) As used in the Commonwealth States.

this of

section, Puerto

the Rico,

term and

"State"

includes

any territory

or

the District

possession

of

of Columbia, the United

HISTORY: 5113.)

(Added

Dec.

i, 1990,

P.L. 101-650,

Title

III,

§ 310(a),

104 Stat.

HISTORY;

ANCILLARY

LAWS AND DIRECTIVES

Other

provislons:

Application

of section.

Act Dec. i, 1990,

P.L. 101-650,

Title

III, § 310(c),

104 Star.

5114,

provides:

"The amendments

made by this section

[adding

this

section]

shall

apply

to civil

actions

commenced

on or after

the date of the

enactment

of this Act.".

LEXIS. NEXIS"

LEXIS"NEXIS"

LEXIS. NEXIS"

No. 01-35276 (DIST. CT. NO. CV-00-03024-FLVS) IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVIA MENDOZA, individually and on behalf of all others similarly situated, et al., Appellants,
V.
ZIRKLE FRUIT CO., a Washington corporation, Respondent.
ON APPEAL FROM THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
(Honorable Fred L. Van Sickle)
PROOF OF SERVICE

Steve W. Berman

Andrew M. Volk

HAGENS BERMAN LLP

1301 Fifth Avenue, Suite 2900

Seattle, Washington

98101

(206) 623-7292

Howard W. Foster JOHNSON & BELL, LTD 55 East Monroe, Suite 4100 Chicago, Illinois 60603 (312) 372-0770

1348.10 0036 BSC.DOC

I, Lynn Brammeier, declare under penalty of perjury that the following facts are true and correct:

I am a citizen of the United States, over the age of 18 years, and not a party

to or interested in the within-entitled

cause. I am an employee of the law firm

Hagens Berman LLP, and my business address is 1301 Fifth Avenue, Suite 2900,

Seattle, Washington 98101.

On June 28, 2001, I caused an original and fifteen copies of

APPELLANT'S

BRIEF and an original and five copies of the EXCERPTS

OF

RECORD to be sent to the Clerk of the Ninth Circuit Court of Appeals, 95

Seventh Street, San Francisco, California, via UPS Overnight Delivery for filing

on June 29, 2001.

In addition, on June 28, 2001, I caused two copies of APPELLANT'S BRIEF and one copy of the EXCERPT OF RECORD to be served on the following counsel for defendants in the manner indicated:

// // //

134810 0036 BSC,DOC

-1-

Brendan V. Monahan

VELIKANJE,

MOORE & SHORE, P.S.

405 East Lincoln Ave.

P.O. Box 22550

Yakima, WA 98907

Attorneys for Defendant Selective

Agency, Inc.

( x ) U.S. MAIL

( ) FAX

( ) MESSENGER

( ) OVERNIGHT

MAIL

Employment

Ryan M. Edgley LAW OFFICE OF RYAN M. EDGLEY, 402 East Yakima Ave., Suite 1080

Yakima, WA 98901 Attorneys for Defendants and Zirkle Fruit Co.

Matson Fruit

( x ) U.S. MAIL ( ) FAX ( ) MESSENGER ( ) OVERNIGHT

MAIL

PLLC. Company

Walter G. Meyer

Meyer, Fluegge & Tenney, P.S. 230 South Second Street

P.O. Box 22680

Yakima, WA 98907

Attorneys for Defendant Zirkle Fruit Co.

( x ) U.S. MAIL
( ) FAX ( ) MESSENGER

( ) OVERNIGHT

MAIL

Executed on June 28, 2001 _/7 Seattl_ Wa_ngton.

1348.10 0036 BSC DOC

Lynn_rammeier
-2-

 </s> ,,¢,

NO. 01-35276 (DIST. CT. NO. CV-00-03024-FVS)

_ ,//. _/

"Oo_e /,

r_

_

O

IN THE UNITED STATES COURT OF APPEALS

-

FOR THE NINTH CIRCUIT

*,0_._.o.

OLIVIA MENDOZA and JUANA MENDOZA, individually and on behalf of all others similarly situated,
Appellants,
V°
ZIRKLE FRUIT CO., a Washington corporation, and MATSON FRUIT COMPANY, a Washington Corporation, and SELECTIVE EMPLOYMENT
AGENCY, INC., a Washington Corporation,
Respondents.
ON APPEAL FROM THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WASHINGTON (Honorable Fred L. Van Sickle)
BRIEF OF APPELLEE SELECTIVE EMPLOYMENT
J. Jay Carroll Brendan V. Monahan VELIKANJE, MOORE & SHORE; P.S. 405 East Lincoln Avenue P.O. Box 22550 Yakima, WA 98907 (509) 248-6030

CORPORATE DISCLOSURE STATEMENT In compliance with FRAP 26.1, Selective Employment, Inc., states: 1) Selective Employment, Inc., is a nongovernmental corporate party to
this proceeding before this Court of Appeals; 2) Selective Employment, Inc., has no parent corporations; 3) No publicly held company owns ten percent (10%) or more of
Selective Employment, Inc.'s stock.

TABLE OF CONTENTS

I°

STATEMENT OF JURISDICTION

..............................

1

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW .............

2

III. STATEMENT OF THE CASE ...................................

3

A. Selective's Posture Before This Court ........................

3

B. Procedure and Disposition Below ...........................

4

IV. STATEMENT OF FACTS ......................................

5

V. SUMMARY OF ARGUMENT ..................................

6

IV. ARGUMENT ................................................

6

A. The District Court did not err in determining that it would

lack jurisdiction over Selective if this case remained in

federal court ............................................

6

1) Standard of Review .... - .............................

6

2) The District Court correctly perceived that federal

courts are courts of limited subject matter jurisdiction

wherein the exercise of jurisdiction is permissible

only if consistent with law ............................

7

3) The District Court correctly identified Selective as a

pendent part here and accordingly, found subject

matter jurisdiction over Plaintiffs' claim against it

lacking under controlling precedent . ...................

9

i

4) The District Court correctly determined that

28 U.S.C. § 1367 and/or the authority offered

by the Plaintiffs in the District Court has no

bearing on the issue of whether pendent party

jurisdiction is regarded as constitutionally per-

missible in the Ninth Circuit .........................

14

5) No new authority or theory advised by Plaintiffs
warrants a conclusion different from that reached

by the District Court here ............................

16

B°

Even the exercise of subject matter jurisdiction over the claim

Plaintiffs brought against Selective had been proper here, the District Court would not have abused its discretion in

dismissing Plaintiffs' state law claims under 28 U.S.C. §

1367(c), after dismissing Plaintiffs' federal claims on a

defendant's 12(b)(6) Motion ...............................

18

1) Standard of Review ................................

19

2) Dismissal of the State Law Claim, and therefore,
Selective, would not have been an abuse of discretion ..... 19

VI. CONCLUSION ..............................................

21

ii

TABLE OF AUTHORITIES

CASES

Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) ..... 8, 10

Aldinger v. Howard, 513 F.2d 1257 (9th Cir. 1975) ......................

10

Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir. 1977), cert. granted,

434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed, 435 U.S. 982, 98

S.Ct. 1635, 56 L.Ed.2d 76 (1978) ..............................

8, 9, 11, 15

Carpenters Southern California Admin. Corp. v. D & L Camp Constr. Co., 738

F.2d 999 (9th Cir.1984) ..........................................

9, 10

Demery v. Kupperman, 735 F.2d 1139, 1149 n. 8 (9th Cir.), cert. denied, 469 U.S.

1127, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985) .............................

6

Elsaas v. County of Placer, 35 F.Supp.2d 757, 759 (E.D.Cal. 1999) .... 5, 7, 9, 11

Executive Software v. United States Dist. Court, 24 F.3d 1545, 1546 (9th Cir.

1994) ...........................................................

15

Gini v. Las Vegas Metro. Police Dept., 40 F.3d 1041, 1046 (9th Cir.1994) .... 16

Gonzales v. Gorsuch, 688 F.2d 1263, 1270 (9th Cir. 1982) ...............

6, 14

Herman Family Revocable Trust v. Teddy Bear, m F.3d --, 2001 WL 649897, *4

(9th Cir. 2001) .... ................................................

15

Hymer v. Chai, 407 F.2d 136, 137 (9th Cir. 1969) .......................

7, 8

Irwin v. Mascott, 96 F.Supp.2d 968 (N.D. Cal. 1999) .....................

13

Les Shockley Racing, Inc., v. National Hot Rod Association, 884 F.2d 504, 509

(9th Cir., 1989) ...................................................

16

iii

Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 523 (9th Cir.1989) ............

15

Potter v. Rain Brook Feed Company, Inc., 530 F.Supp. 569, 572 (E.D. Cal. 1982) 7

Rivera v. Commonwealth of Massachusetts, 16 F.Supp.2d 84, 85 (D.Mass. 1998)

• • • * • • • ° • • • • • • • ....

• ° • .........

• ° ° • ° • • • ° • ............

• • o , • ....

• ° . 11

San Pedro Hotel Co., Inc., v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir.

1998) ...........................................................

15

Trustees of Elec. Workers Health and Welfare Trust v. Marjo Corp., 988 F.2d 865

(9th Cir. 1992) .....................................................

9

U.S. ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001) . 5

United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966) ............................................................

7

Valley Forge Christian College v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ..............

6

Virgin v. County of San Luis Obispo, 201 F.3d 1141, 1142 (9th Cir. 2000) ..... 5

Washington Local v. International Brotherhood Of Boilermakers, 1033 (9th Cir. 1980) ................................................

621 F.2d 1032, 5

Williams v. United States, 405 F.2d 951 (9th Cir. 1969) ....................

8

Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981) ..............

16

Yanez v. United States, 989 F.2d 323 (9th Cir. 1993) .....................

12

Ziegler v. Ziegler, 28 F.Supp.2d 601 (E.D.Wa. 1998) .....................

12

iv

STATUTES AND COURT RULES

28 U.S.C. § 1331 ...................................................

6

28 U.S.C. § 1367(b) ................................................

15

28 U.S.C. § 1367(c) .............................................

14, 15

28 USC § 1367 ..............................................

1, 11-14

Circuit Rule 28-2.2 and FRAP 28(b) ...................................

1

Fed.R.Civ.P. 12(b)(1) .............................................

3, 4

Fed.R.Civ.P.

12(b)(6) . ......................

......................

1-5

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 .......

1

U.S. CONST. art. III, § 2 .............................................

6

Io

STATEMENT OF JURISDICTION

Pursuant to Circuit Rule 28-2.2 and FRAP 28(b), Defendant-Appellee Selective

Employment, Inc. (hereinafter "Selective"), offers the following statement of

jurisdiction.

The Complaint filed by Plaintiffs-Appellants Mendoza, et al. ("Plaintiffs"),

references two independent causes of action, identified as Counts I and II. In Count

I, Plaintiffs attempted to plead a cause of action under the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1961 et seq ("RICO"). In Count II, Plaintiffs

allege that all defendants, including Selective, committed the Washington common

law tort of "civil conspiracy".

Selective does not dispute that RICO violations alleged in Court I, if properly

pied, would have provided subject matter jurisdiction in the District Court.

Selective does dispute, however, that the District Court had the subject matter

jurisdiction to consider Count II, which is the only count asserted against Selective.

The absence of subject matter jurisdiction is of course the reason the Plaintiffs'

complaint was dismissed in the first place, and is the subject of Plaintiffs' appeal.

As argued in greater detail below, while 28 USC § 1367 may confer subject

matter jurisdiction in the District Court as to the civil conspiracy claim made against

the RICO Defendants, it does not confer subject matter jurisdiction over the state

claim made against Selective. The District Courts lack subject matter jurisdiction

over state law claims brought against pendent parties in this Circuit under, among

other decisions, this Court's opinion in Ayala v. UnitedStates,

infra.

II. STATEMENT

OF ISSUES PRESENTED

FOR REVIEW

A. Did the District Court err in finding that it lacked subject matter jurisdiction over Selective where Selective was a pendent party in the proceeding before it and where this Circuit has consistently held that district courts lack subject matter jurisdiction over claims made against pendent parties because exercise of such jurisdiction violates Article III of the U.S. Constitution?

B. Did the District Court err in dismissing the state law claims made against Selective where the District Court dismissed the federal claims against the RICO Defendants and where the law of this Circuit is that exercise of supplemental jurisdiction is inappropriate in cases where the claims supporting federal jurisdiction are dismissed prior to trial?

IIl. STATEMENT OF THE CASE A. Selective's Posture Before This Court Plaintiffs haled Selective into federal court on a state law claim. Selective
joined the RICO Defendants in moving for dismissal of the federal cause of action - brought against them pursuant to Fed.R.Civ.P. 12(b)(6), and also moved for dismissal
of the state law claim brought against it for lack of subject matter jurisdiction. The District Court correctly dismissed this case from federal court. Fi.rst, the
District Court determined that Plaintiffs had failed to state a claim upon which relief could be granted as to the federal cause of action brought against the RICO Defendants and ordered that federal cause of action dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Having determined that the federal cause of action should be dismissed, the District Court remanded the state law claim to state court.
The District Court also noted that it would not have jurisdiction over Selective if Plaintiffs' RICO claims were permitted to remain in federal court. In making this decision, the District Court relied on law of this Circuit that prohibits the adjudication of state law claims against parties with respect to whom no independent federal jurisdiction exists as a violation of Article III of the federal Constitution. Though moving for reconsideration of the District Court's decision as to their federal cause of action, Plaintiffs did not ask that Court to revisit its decision as to the jurisdiction

of District Courts over pendent parties such as Selective. As such, Plaintiffs have

taken no action with respect to that portion of the District Court's decision since September, 2000.

B. Procedure and Disposition Below

Plaintiffs sued Selective and the RICO defendants in March, 2000. Plaintiffs'

Complaint attempted to state a claim under RICO as against the RICO defendants

only. Plaintiffs alleged civil conspiracy against Selective and the RICO defendants.

The RICO defendants moved to dismiss Plaintiffs' Complaint against them

under Fed.R.Civ.P. 12(b)(6). Selectivejoinedthe

RICO defendants' 12(b)(6) Motion,

and also moved for its dismissal here pursuant to Fed.R.Civ.P. 12(b)(1) on the basis

that the District Court lacked subject matter jurisdiction over the state law claim alleged in Count II of Plaintiffs' Complaint, at least as that claim related to Selective.

Argument on the RICO Defendants' 12(b)(6) Motion, as joined by Selective, and Selective's 12(b)(1) Motion was heard by The Honorable Fred Van Sickle in the

United States District Court for the Eastern District of Washington on August 31,

2000. By Order entered September 27, 2000, Judge Van Sickle granted the RICO Defendants' Motion to Dismiss, indicating, in so doing, that the District Court would

lack jurisdiction over Selective if Plaintiffs' cause remained in federal court.

4

Plaintiffs moved for reconsideration of the District Court's dismissal of the

RICO claim by Motion filed October 11, 2000.

Plaintiffs'

Reconsideration

made no mention of the District Court's determination

Motion for that it would

be obliged to dismiss Selective if Plaintiffs' cause of action was allowed to proceed

in federal court. Plaintiffs' motion was denied by Order filed February 14, 2001. A

Notice of Appeal was filed onMarch 15, 2001, identifying the Orders appealed from

as "the Order Granting Defendants' Motion to Dismiss ... dated September 27, 2000

and the Order Denying Reconsideration

dated February 14, 2001"

IV. STATEMENT

OF FACTS

The District Court dismissed the federal cause of action that Plaintiff attempted

to plead here under Fed.R.Civ.P.

12(b)(6) and the state law claim, as to Selective,

under Fed.R.Civ.P.

12(b)(1). It is noted that reviews of dismissals pursuant to

Fed.R.Civ.P.

12(b)(6) and 12(b)(1) are limited to the contents of the Complaint.

Beyond the "facts" alleged in the Complaint, the only fact relevant to

Selective's argument here is that Plaintiffs pleaded a state law claim against Selective,

(see, ER 0013), and continuously acknowledged

throughout these proceedings that

only a state law claim would be asserted against Sel_ective. (See ER 0110-0111).

V. SUMMARY OF ARGUMENT Selective contends that the District Court did not err in determining that it
would lack subject matter jurisdiction over the claim made against Selective as it is the law of this Circuit that exercise of pendent party jurisdiction violates Article III of the federal Constitution. Also, Selective contends that, even if pendent party jurisdiction were permissible, the District Court would not have erred in declining to exercise that jurisdiction after deciding to dismiss the federal RICO claim pursuant to Fed:R.Civ.P. 12(b)(6).
VI. ARGUMENT A. The District Court did not err in determining that it would lack jurisdiction over Selective if this case remained in federal court. 1) Standard of Review The District Court's determination that it would lack jurisdiction over Selective
if Plaintiffs' case remained in federal court was based on Selective's 12(b)(1) Motion. In reviewing motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(D, this court accepts as true the allegations of the complaint. U.S. ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9 thCir. 2001) (citing Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001)). Rulings on 12(b)(1)Motions are reviewed

de novo. Virgin v. County of San Luis Obispo, 201 F.3d 1141, 1142 (9th Cir. 2000)

(citing Crist v. Leippe, 138 F.3d 801,803 (9th Cir. 1998)).

2) The District Court correctly perceived

courts of limited subject matter jurisdiction

jurisdiction

is permissible only if consistent

that federal courts are wherein the exercise of with law.

In assessing the District Court's determination

as to its jurisdiction

over

Selective, it is important to note that federal courts are courts of limited jurisdiction.

As such, federal courts may only exercise subject matter jurisdiction as permitted by

law. See, e.g., Elsaas v. County of Placer, 35 F.Supp.2d 757, 759 (E.D.Cal. 1999).

Thus, even where parties are willing to stipulate to such jurisdiction, se__eWashington

Local v. International Brotherhood of Boilermakers,

621 F.2d 1032, 1033 (9th Cir.

1980), federal courts must consider their jurisdiction over the subject matter presented

by a particular case. Demery v. Kupperman, 735 F.2d 1139, 1149 n. 8 (9th Cir.), cert. denied, 469 U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985).
Article III of the United States Constitution is the "fundamental limitation on

the judicial power of the United States". Gonzales v. Gorsuch, 688 F.2d 1263, 1270

(9 _ Cir. 1982) (Wallace, Circuit Judge, concurring).

The significance of Article III

in defining the contours of permissible federal judicial powers was elucidated by the United States Supreme Court in Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S. 464,476 102 S.Ct. 752, 70 L.Ed.2d
700 (1982), as follows:
Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the "merits" of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, a charter which created a general government, provided for the interaction between that government and the governments of the several States, and was later amended so as to either enhance or limit its authority with respect to both States and individuals.
The limitation on federal judicial power contained in Article III is significant
here because the District Court had no original jurisdiction over Selective. Federal
courts have original jurisdiction over a variety of matters, including claims arising
under federal law. See U.S. CONST. art. III, § 2 (stating "(t)he judicial Power shall
extend to all Cases ... arising under ... the Laws of the United States ...") and 28
U.S.C. § 1331 (providing that "(t)he district courts shall have original jurisdiction of
all civil actions arising under the ... laws ... of the United States"). Here, however,
Plaintiffs made no claim against Selective that conferred original jurisdiction upon
the District Court before which this matter was brought.
Accordingly, the Court before which this matter was brought had jurisdiction
over Selective only if "pendent jurisdiction" could be permissibly exercised here.

Courts have identified two distinct types of pendent jurisdiction. See, e.g., Potter v. Rain Brook Feed Company, Inc., 530 F.Supp. 569, 572 (E.D. Cal. 1982). First, exercise of "pendent claim" jurisdiction is required when a federal court adjudicates parallel state and federal claims against the same defendant. Id..__"_P.endent party" jurisdiction, on the other hand, involves both state and federal claims and the joinder of a party over which the federal court would lack jurisdiction, but for the presence of the party against whom the "anchor" claim is asserted. Id_.._(_E.mphasis added).
3) The District Court correctly identified Selective as a pendent party here and accordingly, found subject matter jurisdiction over Plaintiffs' claim against it lacking under controlling precedent. Because Plaintiffs would have had no claim to jurisdiction in the District Court, but for the presence of the RICO Defendants, i.e., the parties against whom the "anchor" claim was asserted, Selective is a pendent party in the litigation brought by Plaintiffs. Situations involving pendent party jurisdiction raises issues relating to the subject matter jurisdiction of a Federal Court. See Elsaas, 35 F.Supp.2d at 759. The DistriCt Court resolved the issues raised by Selective's presence before it by reference to Supreme Court and Ninth Circuit precedent. The District Court began its thoughtful and thorough analysis of law bearing on the issue presented here with Hymer v. Chai, 407 F.2d 136, 137 (9 _ Cir. 1969), a case in which the Ninth Circuit, by the District Court's reading, "refused to apply the broad ... test (set forth in United
9

Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (hereinafter "Gibbs")) and instead relied on the pre-Gibbs constitutional rule that jurisdiction exists only if the new claim involves the same parties." ER 0071.
Next, the District Court referenced Aldinger v. Howard, 427 U.S. 1,96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), noting that, "the Supreme Court itself began to limit pendent party jurisdiction, but always for lack of statutory authority rather than on Constitutional grounds". ER 0071. In Aldinger, the Supreme Court set forth two (2) criteria that must be established before pendent part. y jurisdiction is permissible:
"(b)efore it can be concluded that (pendent party) jurisdiction exists, a federal court must satisfy itself not only that Article III permits it, but that Congress in the statutes conferring jurisdiction (in a particular case) has not expressly or by implication negated its existence." Id., 427 U.S. at 18. Finally, the District Court quoted at length from Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir. 1977), cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), which was recognized by the District Court as controlling precedent on the issue before it. In A__.y.._ath, is Court quoted Aldinger at length, noting, in particular, the "admonishment" that "even assuming no congressional disinclination to pendent party jurisdiction can be found under a given statute, there remains the constitutional
10

hurdle of the limited federal jurisdictional grant Of Article III to be leaped". A__L__la,

550 F.2d at 1199. Thus, pendent party jurisdiction was condemned by the

Court not on grounds of "ferreted Congressional disinclination", but on more

fundamental grounds that such jurisdiction violates Article III. Id.

Significantly, this Court, in AAy___a_llsao, provided clear guidance as to when, if

ever, pendent party jurisdiction will be found other than constitutionally infirm in this Circuit. Concluding its discussion of H__._m_s_u,pra., and Williams v. United States,

405 F.2d 951 (9 a' Cir. 1969), a second Ninth Circuit decision cited by the District

Court in its discussion on this topic, ER 0071, the _

Court stated:

In view of Aldinger's clear teaching that both constitutional power and

lack of congressional disinclination are prerequisite to the exercise of

pendent party jurisdiction, and until the Supreme Court directly

confronts the "subtle and complex question with far-reaching

implications" posed bypendentpartyjurisdiction,

we reaffirm Williams

and Hymer.

A¥.0_la, 550 F.2d at 1200 (emphasis added). Thus, the District Court's conclusion that "if (Plaintiff's) cause were to be

maintained in federal court, the Court would lack jurisdiction of defendant Selective"

was based on a case of this Court indicating not only that pendent party violates

Article III of the United States Constitution, but indicating, as well, that this Court

does not intend to change its position on this issue until the Supreme Court answers

11

"the ultimate question of constitutional power left unanswered.., in Moor v. County
of Almeda ..." ld___T_h.us, the District Court here was in precisely the position from
which the Court in Elsaas, supra., stated, 35 F.Supp.2d at 760:
clearly expressed the Ninth Circuit's view that Article III does not permit pendent party jurisdiction. No decision of the ... Ninth Circuit or the United States Supreme Court has overruled A_,vala's rejection of pendent party jurisdiction on constitutional grounds, nor does passage of § 1367 alter the holding. Thus, A__,yalaremains the law on pendent party jurisdiction in the Ninth Circuit, and this court, being bound, may not exercise jurisdiction over plaintiffs' claims against (pendent parties).
Because the District Court here (which was in the same situation as the District
Court.in Elsaas.), was merely applying the law of this Circuit, its ruling was not in
error. Indeed, this Court has already passed upon the appropriateness of the District
Court's action here in Carpenters Southern California Admin. Corp. v. D & L Camp
Constr. Co., 738 F.2d 999 (9 th Cir.1984). There, the plaintiff appealed a District
Court's dismissal of a state law claim against a surety where no diversity of
citizenship existed between plaintiff and the proposed surety defendant. The
Carpenters court stated, 738 F.2d at 1000:
Plaintiff contends that the district court should have exercised pendent jurisdiction over the claim against the surety. In refusing to exercise pendent party jurisdiction, however, the district court was apply!ng a long line of case law of this circuit. They hold that under a theory of pendent jurisdiction, a state claim against a defendant may be added to a pending claim over which the court already has jurisdiction, but that
12

pendent jurisdiction does not permit a new party to be added to a case absent an independent jurisdictional basis.
(Numerous citations omitted).
Significantly, the Carpenters court also addressed a request similar to the
request made by Plaintiffs here, i.e., that, notwithstanding the long line of Ninth
Circuit cases compelling the action that the District Court took here, this Court
"reconsider" its position on this appeal. In Carpenters, the plaintiffs' request was
made in light of the Supreme Court's decision in Aldinger, supra., and that Court
responded as follows:
Plaintiff asks us to reconsider this court's position in light of the Supreme Court's decision in Aldinger v. Howard .... There the Court affirmed this court's denial of pendent party jurisdiction in Aldinger v. Howard, 513 F.2d 1257 (9 'h Cir. 1975), but indicated that as a matter of discretion, pendent party jurisdiction might be available in some cases where the federal statutory scheme might permit treating the entire proceeding as "one constitutional 'case'".... This panel is precluded from such reconsideration in light of this court's repeated post-Aldinger reaffirmations of our refusal to permit pendent party jurisdiction in circumstances like this.
Carpenters, 738 F.2d at 1000.
Selective recognizes that Plaintiffs' request that this Court "reconsider" its
position as to the constitutionality of pendent party jurisdiction is based on a statute
rather than a case decided by the Supreme Court. It is submitted, however, that such
reconsideration is unwarranted in this case, both in light of the analysis below and in
13

light of the indication in A.V____5l5a0, F.2d at 1200, that this Court awaits a statement from the Supreme Court that directly confronts the question posed here before acting

to upset a precedent of nearly twenty-five years' standing.

4) The District Court correctly determined that 28 U.S.C. § 1367

and/or the authority offered by Plaintiffs in the District Court has

no hearing on the issue of whether pendent party jurisdiction is

regarded as constitutionally

permissible in the Ninth Circuit.

Plaintiffs rely exclusively on the proposition that the jurisdiction they asked the

District Court to assert is permitted under 28 U.S.C. § 1367. In so doing, Plaintiffs

completely ignore not only the thrust of Selective's argument, but the content of this

Court's decisions on the issue of pendent party jurisdiction, which are not based on

a lack of Congressional authorization for pendent party jurisdiction, but rather on the

premise that pendent party jurisdiction violates Article III of the U.S. Constitution.

It is axiomatic in federal law that Congress cannot change the Constitution's

parameters through passage of a statute, and 28 U.S.C. § 1367 is no exception to this

rule. See, e.g., Rivera v. Commonwealth of Massachusetts, 16 F.Supp.2d 84, 85 (D.Mass. 1998) (stating that the "statutory grant (of authority provided in 28 U.S.C.

§ 1367) can (not) ... expand the jurisdictional boundaries set forth in Article III ... of

the United States Constitution."). Thus, 28 U.S.C. § 1367, as an act of Congress, has

no effect on whether pendent party jurisdiction is permitted by Article III. see Elsaas,

14

35 F.Supp.2d at 760 (stating "(n)o decision of the United States Court of Appeals for the Ninth Circuit or the United States Supreme Court has overruled Ay_.0_slar'ejection of pendent party jurisdiction on constitutional grounds, nor does passage of§ 1367

alter (_'s)

holding") (emphasis added). Given that this Court's objection to

pendent party jurisdiction is founded on the Constitution and not any Congressional

disinclination, Plaintiffs' reliance on 28 U.S.C. § 1367 is misplaced.

Plaintiffs attempted to avoid the force of this argument in the District Court by

citing to a relatively recent decision of that Court Ziegler v. Ziegler, 28 F.Supp.2d

601 (E.D.Wa. 1998), and a case of this Court, Yanez v. United States, 989 F.2d 323

(9 th Cir. 1993), in which the passage of 28 U.S.C. § 1367 is noted in a footnote.

Neither of these cases, however, helps the Plaintiffs in any significant way as neither

overrules A yala and declares pendent party jurisdiction constitutional.

Beyond the fact that the _

decision is not binding on this Court, that case

does not help Plaintiffs for several reasons. First, the parties and the Court there

failed to raise the issue of constitutionality, such that the Court did not address the

issue before this Court. Further, pendent party jurisdiction as to defendants could not

have been raised in that case because that case involved federal claims brought by one

plaintiff and state claims brought by another plaintiff against a defendant properly

before the Court on the first plaintiff's federal claims. Thus, _,

which is, at best

15

a "pendent plaintiff" case, is factually distinguish_ible from the current case, wherein Plaintiffs has haled into federal court a defendant, Selective, over which no independent basis for federal jurisdiction exists.
Yanez provides Plaintiffs with no more support. First, Yanez says nothing about the constitutionality of pendent party jurisdiction, but merely states in a footnote that Congress has authorized its exercise in 28 U.S.C. § 1367. See Yanez, 989 F.2d at 326 n.3. Further, the Yanez court had no reason to address any aspect of pendent party jurisdiction, including the constitutionality thereof, because 28 U.S.C. § 1367 had not been enacted as of the date the litigation at issue in Yanez had been commenced. Id__T_h_u.s, the Yanez court neither addressed the issue before this Court, nor overruled the clear teaching of A y_0_law,hich is that pendent party jurisdiction violates the Constitution, regardless of what Congress may have to say about it.
5) No new authority or theory advanced by Plaintiffs warrants a conclusion different from that reached by the District Court here. On appeal, Plaintiffs have added a new case and a new theory upon which they request a reversal of the District Court's decision that it lacked jurisdiction over Selective. Neither the new case nor the new theory support any such action here. The new case advanced by Plaintiffs as supportive of their position is Irwin v. Masco 96 F.Supp.2d 968 (N.D. Cal. 1999). There, a District Court addressed, in
16

the context of class action where the representative

plaintiffs had claims based on

federal law, a challenge to the exercise of supplemental jurisdiction over the claims

of potential class members who lacked federal causes of action. Id___a.,t 975. The

court ruled, on the basis of two District Court Orders entered in separate matters

during 1992, that it could exercise supplemental jurisdiction over the claims of the

pendent plaintiff class members, whether or not those pendent plaintiffs had federal

claims or not. Id_.._T_h. us, Irwin helps Plaintiffs no more that ZieA__g_ does, as neither

case (a) resulted in a decision that is, in any way, binding on this Court; (b) addressed

the constitutionality

of pendent party jurisdiction; or (c) involved a pendent defendant

before a United States District Court to defend a state law claim alone.

The new theory advanced by Plaintiffs appears to be the District Court found

28 U.S.C. § 1367, rather than pendent party jurisdiction, to be unconstitutional.

Of

course, Selective neither made such an argument nor maintained such a position, and

the District Court made no such finding. Rather, Selective's position, with which the

District Court agreed, that pendent party jurisdiction is held by this Court to be

unconstitutional,

and the statute asserted by Plaintiffs, as an act of Congress, cannot

erase that constitutional infirmity, irrespective of its constitutionality.

See Gonzales,

688 F.2d at 1270 (Wallacel Circuit Judge, concurring) (stating "(c)learly, Congress

17

cannot by statute vest the federal courts with jurisdiction to hear lawsuits that.., are

... not within the limited jurisdiction which Article III grants the federal courts"). Selective submits that 28 U.S.C. § 1367 represents an attempt by Congress to

expand the scope of pendent jurisdiction to the full extent permitted by Article III.

Selective recognizes the power of Congress to expand and/or contract the scope of pendent jurisdiction to the fullest extent permitted by Article III or to some lesser

extent. What is critical here, however, is that Congress cannot expand the scope of such jurisdiction beyond the fullest extent permitted by Article III, and it is the long-

standing position of this Court that the jurisdiction Plaintiffs would have the District

Court exercise over Selective is beyond that fullest extent permitted by Article III.

It is requested, therefore, that the District Court be affirmed on this point.

B. Even the exercise of subject matter jurisdiction

over the claim

Plaintiffs brought against Selective had been proper here, the

District Court would not have abused its discretion in dismissing

Plaintiffs'

state law claims under 28 U.S.C. § 1367(c), after

dismissing Motion.

Plaintiffs'

federal claims on a defendant's

12(b)(6)

It is believed that the District Court found that Selective would have to be

dismissed from this action for lack of subject matter jurisdiction and that the District Court's ruling on this issue was correct. It is contended briefly that dismissal of the

18

state law claim, and Selective with it, would have been warranted under 28 U.S.C. § 1367(c) even if the exercise of jurisdiction over Selective were permissible.
1) Standards of Review Assuming that power to hear pendent state law claims exists, Herman Family Revocable Trust v. Teddy Bear, -- F.3d --, 2001 WL 649897, *4 (9 _ Cir. 2001) (stating that a "court may exercise ... supplemental jurisdiction ... only if it has the "'power to hear state law claims'"), a district court's exercise of pendent jurisdiction over state law claims is a matter of discretion. Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 523 (9th Cir.1989). A District Court's refusal to exercise supplemental jurisdiction is reviewed for an abuse of discretion. San Pedro Hotel Co., Inc., v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998) (citing Inland Empire Chapter of Associated Gen. Contractors v. Dear, 77 F.3d 296, 299 (9th Cir. 1996)). 2) Dismissal of the State Law Claim, and, therefore, Selective, would not have been an abuse of discretion. Assuming it had power to exercise such jurisdiction in the first place, a court may decline to exercise supplemental jurisdiction if (1) the state law claim raises a novel or complex issue of state law; (2) the state law claim substantially predominates over the claim over which the district court has original jurisdiction; (3) the U.S. district court has dismissed all claims over which it has original jurisdiction; (4) in
19

exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c); Executive Software v. United States Dist. Court, 24 F.3d 1545, 1546 (9th Cir. 1994) (stating that power conferred under 28 U.S.C. § 1367(a) may, be declined for the reasons set forth in § 1367(c)).
Here, the District Court, if it had the power Plaintiffs seek to confer upon it over the ConStitutional objection of this Court probably would been obliged to dismiss the state law claim after dismissing the RICO claim under either 28 U.S.C. § 1367(b) or (c). This Court has stated that "when_ as here, the court dismisses the federal claim leaving only state claims for resolution, the court should decline jurisdiction over the state claims and dismiss them without prejudice." Les Shockley Racing, Inc., v. National Hot Rod Association, 884 F.2d 504, 509 (9th Cir., 1989) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618-19, 98 L.Ed.2d 720 (1988)). Indeed, this Court has found that "proper exercise" of discretion requires dismissal state law claims in these situations. Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981) (stating "when the state issues ... predominate and all federal claims are dismissed before trial, the proper exercise of discretion requires dismissal of the state claim."); See Gini v. Las Vegas-Metro. Police Dept., 40 F.3d 1041, 1046 (9th Cir. 1994) (stating "(i)n the usual case in which
20

federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims.").

VII.

CONCLUSION

In acting on Plaintiffs' state law claim against Selective, the District Court here

did exactly what a District Court must do confronted with a claim over which it lacks of subject matter jurisdiction - it ruled that it could not adjudicate the claim. It is

requested therefore that the District Court be affirmed.

DATED this .._day

of _Y'_L'_

,2001.

VELIKANJE,

MOORE & SHORE, P.S.

Attornej,,s for Defendant Selec_

BY" "

( _ rE__lo_,ment,

"'_

_rrk_oll _

J. Jay[,_

/

WSB, _ No. 1742_
/

I:_
\/ "_

21

STATEMENT

OF RELATED CASES

In compliance with Circuit Rule 28-2.6, the attorneys for defendant Selective state that they are unaware of any related case pending before this Court.
DATED this 30 day of July, 2001.

VELIKANJE,

MOORE &/SI_IORE, P.S.

Atto_,,y_ for J_fendan]/S elective

_/ Em]'l°_m(int"I_"

I_

J. _Ly Can'oll,_SB_ 40. E. LiILcolfi_
P.( . Box :_.2550

No. 424

Yakima, WA 98907 (509) 248-6030

FAX (509) 453-6880

CERTIFICATE OF COMPLIANCE
Pursuant to the Ninth Circuit Rule 32(a)(7)(B)(i), I certify that the brief of appellee Selective Employment is double spaced in 14 point proportionally spaced Times New Roman typeface. The word count, excluding the cover page, table of contents, table of authorities, proof of service, and certificate of compliance is 4,827.
DATED: July _l'r,_2001.
_.M
,Ill\ J. J_ Carl
WSl _ N( .1742_,....// 405 East L colr Avenue P.O. Box _.550 Yakima, WA 98907 (509).248-6030 Attorneys for Defendant-Appellee
Selective Employment

PROOF OF SERVICE

The undersigned certifies as follows: I am LORI A. BUSBY, an employee of Velikanje, Moore & Shore, P.S.,

attorneys for appellants in the above entitled case; I am a citizen of the United States,

a resident of Yakima County, Washington, over the age of 21 years, and not a party

to said action. I further certify that on the 30th day of July, 2001, I mailed by UPS

Overnight Mail, the original and 15 copies of Brief of Appellee Selective

Employment to be sent to:
Office of the Clerk U.S. Court of Appeals 95 Seventh Street San Francisco, CA 94103-1526

Additionally on the 30th day of July, 2001, I caused two copies of Brief of

Appellee Selective Employment to be served on the following counsel for appellants

and appellees in the manner indicated:

Steve W. Berman Andrew M. Volk HAGENS, BERMAN, LLP 1301 Fifth Avenue, Suite 2900 Seattle, Washington 98101

VIA UPS OVERNIGHT MAIL

Howard W. Foster JOHNSON & BELL, LTD 55 East Monroe, Suite 4100 Chicago, Illinois 60603

VIA UPS OVERNIGHT MAIL

•Sheryl Gordon McCloud 1301 Fifth Avenue, Suite 3401 Seattle, Washington 98101-2605
Irwin Schwartz 710 Cherry Street Seattle, Washington 98104
Terry C. Schmalz Halverson & Applegate P.O. Box 22730 Yakima, WA 98907-2715
Walter G. Meyer Meyer, Fluegge & Tenney, P.S. 230 South Second Street P.O. Box 22680 Yakima, WA 98907

VIA UPS OVERNIGHT MAIL VIA UPS OVERNIGHT MAIL VIA HAND DELIVERY VIA HAND DELIVERY

I certify that the foregoing is true and correct. DATED this 30th day of July, 2001, at Yakima, Washington.

LbRI A. BUSBY
O

 </s> FILED IN THE U.S. DISTR~CT COURT EASTERN DIS’[RIOT OF WASHINGTON

1 Brendan V. Monahan
2 Velikanje, Moore & Shore, P.S. 3 405 East Lincoln Avenue 4 P.O. Box 22550 5 Yakima, Washington 98907 6 Telephone: 509-248-6030
7 Attorneys for Defendant Selective Employment
8

DEC - 3 2002
JAMES R. LARSEN, C_LDEREKPUTY yAKIMA~WASH[NBT~N

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

11

12 OLIVIA MENDOZA and JUANA 13 MENDIOLA, individually and on 14 behalf of all other similarly situated,

NO. CY-00-3024-FVS

15

16

Plaintiffs,

DEFENDANT SELECTIVE

17

EMPLOYMENT’S

18

ANSWER

19 ZIRKLE FRUIT CO., a Washington 20 corporation, MATSON FRUIT 21 COMPANY, a Washington corporation
22 and SELECTIVE EMPLOYMENT
23 AGENCY, INC., a Washington
24 corporation,

25

26

Defendants.

27

28

29

Comes now Defendant Selective Employment Agency, Inc. ("Selective") and

30 answers the Plaintiffs’ complaint as follows:
31

32

33 34

35

DEFENDANT SELECTIVE EMPLOYMENT’ S ANSWER- 1 308121b

Velikanje, Moore & Shore, P.$.
zttorne~t ~! law 405 East Lincoln Ave.
P,O. Box 22550 Yakima, WA 98907
(so~)

1

1. Selective disputes that the alleged class is appropriate from either a

2

3 factual or legal perspective, and accordingly denies the allegation set forth in

4
5 paragraph one (1) of the Plaintiffs’ complaint.

6

2. This allegation does not appear to pertain to Selective, and Selective

7

8 offers no response. To the extent Selective is alleged to have known of or
9

10 participated in the "scheme" alleged in paragraph two (2) of the Plaintiffs’ complaint,
11

12 such allegation is denied.

13

14

3. This allegation does not appear to pertain to Selective, and Selective

15
16 offers no response. To the extent Selective is alleged to have known of or

17
18 participated in the "scheme" alleged in paragraph three (3) of the Plaintiffs’

19 complaint, such allegation is denied.
20

21

4. Selective admits that it is a corporation organized under the laws of

22

23 Washington, that it conducts business in Washington, and that it performs services

24
25 related to employee placement and recruiting. All other allegations in paragraph four

26
27 (4) of the Plaintiffs’ complaint are denied.

28 29

5. Denied.

3O

6. Denied.

31

32

7. Selective admits that the named plaintiffs were employed by Zirkle as

33

34 laborers. Selective has insufficient knowledge or is otherwise unable to respond to
35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 2 308121b

Velikanje, Moore & Shore, P.$.
attorn~’)’~ ~,t law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1 the remaining allegations in paragraph seven (7) of the Plaintiffs’ complaint, and such
2
3 allegations are therefore denied.
4
8. This allegation does not appear to pertain to Selective, and Selective

6 offers no response.
7

8

9. This allegation does not appear to pertain to Selective, and Selective

9

10 offers no response.
11

12

10. Selective admits that is a corporation organized under the laws of the

13

14 State of Washington, and that it is a legal entity that is separate, apart, and wholly

15
16 unrelated to the other corporations that have been named as defendants in this action.

17
18 All other allegations and implications contained in paragraph 10 of the Plaintiffs’

19 complaint are denied.
20

21

11. Selective denies that supplemental jurisdiction is appropriate.

22

23

12. Selective denies all allegations and implications relating to "illegal acts",

24
25 but admits that venue for this litigation is properly situated in the Eastern District of

26
27 Washington.

28

29

13. Selective denies that this action may be appropriately pursued as a class

3O action.
31

32

14. Denied.

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 3 308121b

Velikanje, Moore & Shore, P.$.
attorn~y~ at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

15. Paragraph 15 of the Plaintiffs’ complaint, including sub-parts a-g, is

2

3 denied in its entirety.

4

5

16. Denied.

6

7

17. Selective has insufficient information to form a belief as to the truth or

8
falsity of the allegations contained in paragraph 17 of the Plaintiffs’ complaint, and
9

10 such allegations are accordingly denied.
11

12

18. Paragraph 18 of the Plaintiffs’ complaint, including sub-parts a-d, is

13

14 denied in its entirety.

15

16

19. Denied.

17

18

20. Admitted.

19
21. Selective has insufficient information to form a belief as to the truth or
20

21 falsity of the allegations contained in paragraph 21 of the Plaintiffs’ complaint, and
22

23 such allegations are accordingly denied.
24

25

22. Selective denies that it plays any role, much less an "essential role" in

26
27 the scheme alleged by Plaintiffs, and specifically denies that it has knowingly hired

28
29 workers of illegal status. As to the balance of the allegations set forth in paragraph

3O

22 of the Plaintiffs’ complaint, Selective has insufficient information to form a belief

31

32 as to the truth or falsity thereof, and such allegations are accordingly denied.
33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 4 308121b

Velikonje, Moore & Shore, P.S.
attorney’s at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

23. Selective has learned through media coverage that a project called

2
3 "Operation Snowbird" was undertaken by the INS. As to the balance of the

4
5 allegations set forth in paragraph 23 of the Plaintiffs’ complaint, Selective has

6 insufficient information to form a belief as to the truth or falsity thereof, and such
7

8 allegations are accordingly denied.
9

10

24. Selective has insufficient information to form a belief as to the truth or

11

12 falsity of the allegations contained in paragraph 24 of the Plaintiffs’ complaint, and

13

14 such allegations are accordingly denied.

15

16

25. Selective is not aware of either Zirkle or Matson ever hiring an "illegal

17
immigrant", and accordingly denies all allegations and implications contained in
18

19 paragraph 25 of the Plaintiffs’complaint.
20

21

26. Denied.

22

23

27. Selective denies that it had knowledge of or participated in any illegal

24
25 scheme with Matson. With respect to the balance of the allegations set forth in

26
27 paragraph 27 of the Plaintiffs’ complaint, Selective has insufficient information to

28
29 form a belief as to the truth or falsity thereof, and such allegations are accordingly

30 denied.
31

32

28. Selective denies that it had any knowledge that any person it referred to

33

34 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 5 308121b

Velikanje, Moore & Shore, P.$.
405 East Lincoln Ave. P.O. Box 22550
Yakirna, WA 98907 (509) 248-6030

1 to this day has no knowledge that any person it referred to Matson or Zirkle was not
2
3 lawfully permitted to work in the United States. With respect to what Matson may

4
5 have known about any such workers, or about the 493 workers referred to in the

6
complaint, is unknown to Selective, and the allegations pertaining thereto are
7

8 accordingly denied.
9

10

29. Selective denies that it had any knowledge that any person it referred to

11

12 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact
13
14 to this day has no knowledge that any person it referred to Matson or Zirkle was not

15
16 lawfully permitted to work in the United States. With respect to what Matson may

17
18 have known about any such workers, or about the 493 workers referred to in the

19 complaint, is unknown to Selective, and the allegations pertaining thereto are
20

21 accordingly denied. On the same basis, Selective denies the allegations regarding the
22
23 composition of Matson’ s workforce, and the allegations regarding the "findings" of

24
25 the INS.

26

27

30. Selective denies that there exists a "conspiracy of silence", denies that

28
29 it is well known whether a person in the agriculture workforce is an illegal alien, and

3O denies knowledge of or participation in any course of maintaining separate sets of
31

32 "books". With respect to the raids and other allegations set forth in paragraph 30 of
33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 6 308121b

Velikanje, Moore & Shore, P.S.
atl~rleys at law
405 East Lincoln Ave, P,O, Box 22550
Yakirna. WA 98907
(so~) 24a-~o

1 the Plaintiffs’ complaint, Selective is without sufficient facts to form a belief as to the

2

3 truth or falsity thereof, and accordingly such allegations are denied.

4

5

31. Selective denies that it has participated in or had knowledge of any

6 hirings or rehirings by Zirkle or Matson of persons who were known to be "illegal
7

8 immigrants", or who were known to have "fraudulent" social security numbers.
9

10

32. Selective denies that it had any knowledge that any person it referred to

11

12 Matson or Zirkle was not lawfully permitted to work in the United States, and in fact

13

14 to this day has no knowledge that any person it referred to Matson or Zirkle was not

15
16 lawfully permitted to work in the United States. With respect to what Zirkle may

17
18 have known about the persons referred to it by Selective, or what it may have known

19 about the 50 other workers referred to in the complaint, is unknown to Selective, and
20

21 on that basis is denied.
22

23

33. Denied.

24

25

34. Denied.

26

27

35. Selective admits that there is a certification portion of I-9 forms, but

28
29 denies that it has ever signed such certifications with actual knowledge that the

3O person being employed (or referred for employment) was ineligible for employment.
31

32

36. Denied.

33

34

37. Denied.

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 7 3 08121b

Velikanje, Moore & Shore, P.S,
ztlor~e)’~ at 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

38. To the extent the continuing scheme is alleged to have been perpetrated

2

3 with the knowledge or participation of Selective, such allegation is denied.

4

5

39. Denied.

6

7

40. Selective admits that it has enjoyed contractual relationships with Zirkle

8
and Matson whereby it interviews prospective employees, performs administrative
9

10 duties pertaining to the hiring process, and refers the prospective employees on to
1t

12 Zirkle and Matson. If Zirkle and/or Matson decide that the candidate would make an
13

14 appropriate addition to the workforce, Selective completes the hiring process and

15
16 handles all payroll functions on behalf of Zirkle and Matson. Zirkle and Matson

17
18 dictate the compensation actually received by the worker, the hours that the employee

19 is to work, and the responsibilities that such worker is expected to perform. Whether
20

21 such workers are the employees of Zirkle, Matson, or Selective is a conceptual and
22

23 legal matter best left for interpretation by the Court. Selective admits is paid for its

24
25 services. Selective denies that it "loans" workers, that it enjoys a "joint venture", and

26
27 that this simple, routine transaction by any means establishes a "complex legal

28
29 relationship".

30

41. Selective has no direct knowledge of why Matson or Zirkle have elected

31

32 to utilize its services as an employment agency, and denies that the alleged scheme
33

exists.
35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 8 308121b

Velikanje, Moore & Shore, P.$.
405 East Lincoln Ave. P.O. Box 22550
Yakima, WA 98907 (509) 24~6030

1

42. Paragraph 42 of the Plaintiffs’ complaint, including all of its scurrilous

2

3 fabrications, is denied in its entirety.

4

5

43. Denied.

6

7

44. Denied.

8

45. Denied.

9

10

46. Denied.

11

12

47. Denied.

13

14

48. Selective denies that paragraph 48 of the Plaintiffs’ complaint contains

15
16 an accurate or full recitation of the law.

17

18

49. Paragraph 49 does not allege any facts that pertain to Selective, and

19 Selective offers no response.
20

21

50. To the extent Selective is alleged to have known of or participated in the

22

23 alleged predicate acts, such allegation is denied.

24

25

51. Selective incorporates its prior responses.

26

27

52. As this claim is not asserted against Selective, Selective offers no

28
29 response.

3O

53. Denied.

31

32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 9 308121b

Velikanje, Moore & Shore, P.S.
altorney~ at law 405 Eas~ Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

54. Although this claim is not asserted against Selective, it specifically

2

3 denies that any association-in-fact enterprise exists, or that it knew of or participated

4
5 in any of the alleged acts that give rise to this claim.

6

7

55. Although this claim is not asserted against Selective, it specifically

8 denies that any association-in-fact enterprise exists, or that it knew of or participated
9

10 in any of the alleged acts that give rise to this claim.
11

12

56. Denied.

13

14

57. Selective incorporates its prior responses.

15

16

58. Paragraph 58 does not allege any facts that pertain to Selective, and

17
18 Selective offers no response.

19

59. Denied.

20

21

60. Denied.

22

23

61. Denied.

24

25

62. Denied.

26

27

WHEREFORE, HAVING ANSWERED THE PLAINTIFFS’ COMPLAINT,

28
29 AND BY FURTHER ANSWER AND PLEADING, SELECTIVE OFFERS THE

3O FOLLOWING AFFIRMATIVE DEFENSES:
31

32

1. The Plaintiffs’ damage claims are barred or limited by the statute of

33

34 limitations.

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER- 10 308121b

Velikanje, Moore & Shore, P.S.
att0rney~ at I~w 405 East Lincoln Ave.
P,O. Box 22550 Yakirna, WA 98907
(5o9) :z4a..~o3o

1

The Plaintiffs’ claims are barred or limited by the doctrines of estoppel,

=

waiver, consent and payment, and/or failure to mitigate.

4

5

HAVING FULLY ANSWERED THE PLAINTIFFSC’OMPLAINT,

6
7 SELECTIVE REQUESTS THE FOLLOWING RELIEF:

8

That the pending action be dismissed with prejudice;

9

10

That Selective be awarded its reasonable costs and attorneys’ fees.

11

12

DATED this 3rd day of December, 2002.

13

14

VAtEtoLrnIKeyAfoNrJDEe,fM endO~ORE & SHORE, P.S.

15

16 17 18

~an -

19

2O

21

22

23

24

25

26 27 28

29

3O

31 32

33

34

35

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER - 11 308121b

Velikanje, Moore & Shore, P.$.
attorney’s at law 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(509) 248-6030

1

CERTIFICATE OF SERVICE

2

3

The undersigned certifies under the penalty of perjury under the laws of the

4 State of Washington that on this date, I caused to be served in the manner noted below a copy of this document on the following individuals:

Steve W. Berman
7
Andrew M. Volk 8 HAGENS, BERMAN LLP 9 1301 Fifth Avenue, Suite 2900 10 Seattle, Washington 98101
11

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

12 Howard W. Foster 13 JOHNSON & BELL, LTD. 14 222 N. LaSalle Street, Suite 2200 15 Chicago, Illinois 60601

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

16

17 Terry C. Schmalz, Esq.

18 Halverson & Applegate

19

P.O. Box 22730 Yakima, WA 98907-2715

20

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] Via Messenger

21 Ryan M. Edgley 22 Edgley & Beattie, P.S. 23 201 East "D" Street 24 Yakima, Washington 98901

[] Via Facsimile
Via U.S. Mail, postage prepaid
[] Via Overnight Delivery [] ViaMessenger

25
26 Walter G. Meyer, Esq.
27 Meyer, Fluegge & Tenney, P.S. 28 230 South Second Street 29 P.O. Box 22680
Yakima, WA 98907
30

Via Facsimile Via U.S. Mail, postage prepaid Via Overnight Delivery Via Messenger

31

DATED at Yakima, Washington, this~day of’~~~

32

,2002.

33

34

35

Ldri A. Busby

DEFENDANT SELECTIVE EMPLOYMENT’S ANSWER- 12 308121b

Velikanje, Moore & Shore, P.$.
att01’ne}~ i! I=w 405 East Lincoln Ave.
P.O. Box 22550 Yakima, WA 98907
(50~) 24e-r~30

 </s> CM/ECF LIVE - U.S. District Court:waed

Query •

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CLOSED, LC01, PROTO

Eastern District of Washington U.S. District Court (Spokane) CIVIL DOCKET FOR CASE #: 2:00-cv-03024-FVS

Mendoza, et al v. Zirkle Fruit Co, et al Assigned to: Judge Fred Van Sickle Demand: $0 Cause: 18:1961 Racketeering (RICO) Act

Date Filed: 03/28/2000 Date Terminated: 12/29/2005 Jury Demand: Plaintiff Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question

Plaintiff
Olivia Mendoza individually and on behalf of all others similarly situated

represented by Andrew M Volk Hagens Berman LLP 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 206-623-7292 Email: andrew@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard W. Foster Johnson & Bell LTD - IL 33 West Monroe Street Suite 2700 Chicago, IL 60603-5404 312-372-0770 Fax: 312-372-9818 Email: fosterh@jbltd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack T Riley Johnson & Bell LTD - IL 33 West Monroe Street Suite 2700 Chicago, IL 60603-5404
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CM/ECF LIVE - U.S. District Court:waed
Plaintiff

312-372-0770 Fax: 312-372-9818 Email: rileyj@jbltd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kevin Toohey Johnson and Bell Ltd 55 E Monroe Street Suite 4100 Chicago, IL 60602 312-372-0770 Fax: 312-372-9818 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael V Connell Smart Law Offices PS 501 North 2nd Street Yakima, WA 98901-2309 509-573-3333 Email: connell@yvn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W Berman Hagens Berman Sobol Shapiro LLP 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 206-623-7292 Fax: 12066230594 Email: steve@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF LIVE - U.S. District Court:waed
Juana Mendiola individually and on behalf of all others similarly situated

represented by Andrew M Volk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard W. Foster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack T Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kevin Toohey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael V Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Zirkle Fruit Co a Washington corporation

represented by Alexander A Baehr Holland & Knight LLP - SEA 520 Pike Street Suite 2600 Seattle, WA 98101-1385 206-340-1825 TERMINATED: 06/11/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diehl Randall Rettig Rettig Osborne Forgette O'Donnell Iller
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CM/ECF LIVE - U.S. District Court:waed

& Adamson LLP 6725 W Clearwater Avenue Kennewick, WA 99336 509-783-6154 Fax: 15097830858 Email: diehl.rettig@rettiglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Alexander Smith, Jr Smith & Hennessey PLLC 316 Occidental Avenue South Suite 500 Seattle, WA 98104 206-292-1770 TERMINATED: 11/08/2004 LEAD ATTORNEY

Mark David Watson Meyer Fluegge & Tenney 230 S Second Street P O Box 22680 Yakima, WA 98907 509-575-8500 Fax: 15095754676 Email: Watson@mftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M Edgley Edgley Law Office PS 251 Hideaway Road Yakima, WA 98908 509-248-1740 Email: edgleyr@hscis.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Walter G Meyer, Jr Meyer Fluegge & Tenney 230 S Second Street P O Box 22680 Yakima, WA 98907 509-575-8500 Fax: 15095754676

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Email: wally@columbiareach.com TERMINATED: 06/20/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matson Fruit Company a Washington corporation TERMINATED: 11/06/2003

Paul Hamilton Beattie Law Offices of Paul H. Beattie 250 Trails End Lane Yakima, WA 98908 509-248-1717 Fax: 509-972-2248 Email: hrappgray@aol.com
represented by Alexander A Baehr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Alexander Smith, Jr (See above for address) TERMINATED: 11/08/2004 LEAD ATTORNEY

Lawrence Edwin Martin Halverson & Applegate PS 311 N Fourth Street P O Box 22730 Yakima, WA 98907-2715 509-575-6611 Fax: 15094572419 Email: lmartin@halversonlaw.com TERMINATED: 11/06/2003 LEAD ATTORNEY

Paul Hamilton Beattie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M Edgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terrence Colin Schmalz
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CM/ECF LIVE - U.S. District Court:waed

Halverson & Applegate PS 311 N Fourth Street P O Box 22730 Yakima, WA 98907-2715 509-575-6611 TERMINATED: 11/06/2003 LEAD ATTORNEY

Defendant
Selective Employment Agency Inc a Washington corporation

represented by Brendan Victor Monahan Velikanje Moore & Shore PS 405 E Lincoln Avenue P O Box 22550 Yakima, WA 98907 509-248-6030 Email: bmonahan@vmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Department of Social and Health Services Division of Child Support

represented by Department of Social and Health Services Division of Child Support Attn: Elaine Dunlap P O Box 11520 Tacoma, WA 98411-5520 PRO SE

Unknown USA

represented by Pamela Jean DeRusha U S Attorney's Office - SPO 920 W Riverside Suite 300 P O Box 1494 Spokane, WA 99210-1494 509-353-2767 Fax: 4623866 Email: USAWAE. PDeRushaECF@usdoj.gov TERMINATED: 01/24/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A Ellis U S Attorney's Office - YAK

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Special Master Judge Harold Clarke Plaintiff

402 E Yakima Avenue Suite 210 Yakima, WA 98901-2760 509-454-4425 Fax: 15094544435 Email: USAWAE.REllisECF@usdoj. gov TERMINATED: 10/28/2004 LEAD ATTORNEY
Stephanie Martz Social Security Administration - OGC 701 5th Avenue Suite 2900, M/S 901 Seattle, WA 98104-7075 206-615-2272 Fax: 12066152531 Email: stephanie.martz@ssa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas M Elsberry Social Security Administration - OGC 701 5th Avenue Suite 2900, M/S 901 Seattle, WA 98104-7075 206-615-2112 Fax: 12066152531 Email: thomas.elsberry@ssa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harold Clarke Algeo Clarke & Erickson Special Master E 102 Baldwin Spokane, WA 99207 509-328-6123 PRO SE

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CM/ECF LIVE - U.S. District Court:waed
Victor Sanchez individually and on behalf of all others similarly situated

represented by Andrew M Volk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard W. Foster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack T Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kevin Toohey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael V Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Daryl Matson TERMINATED: 08/13/2004

represented by D Bruce Lamka Davis Wright Tremaine - SEA 1501 Fourth Avenue Suite 2600 Seattle, WA 98101-1688 206-622-3150 TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darya V Swingle Davis Wright Tremaine - SEA
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CM/ECF LIVE - U.S. District Court:waed
Defendant

1501 Fourth Avenue Suite 2600 Seattle, WA 98101-1688 206-622-3150 TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hall Baetz Davis Wright Tremaine - SEA 1501 Fourth Avenue Suite 2600 Seattle, WA 98101-1688 206-622-3150 TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence Edwin Martin (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin Lee Gray, Jr Davis Wright Tremaine - SEA 1501 Fourth Avenue Suite 2600 Seattle, WA 98101-1688 206-622-3150 Email: montygray@dwt.com TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M Edgley (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Roderick Matson TERMINATED: 08/13/2004
Defendant

represented by D Bruce Lamka (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darya V Swingle (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hall Baetz (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence Edwin Martin (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin Lee Gray, Jr (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M Edgley (See above for address) TERMINATED: 08/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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William - Zirkle
Defendant Gary Hudson
Defendant

represented by Diehl Randall Rettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark David Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M Edgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Hamilton Beattie (See above for address)
represented by Diehl Randall Rettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark David Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M Edgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF LIVE - U.S. District Court:waed
William - Wangler

represented by Diehl Randall Rettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark David Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M Edgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

03/28/2000
03/28/2000 03/29/2000 03/29/2000 03/29/2000 03/30/2000 04/03/2000

1 CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM Fee-status: pd Receipt #: 44046 (RF) (Entered: 03/28/2000)
Summons issued as to defendant Zirkle Fruit Co, defendant Matson Fruit Company and defendant Selective Employment (RF) (Entered: 03/28/2000)
2 ATTORNEY APPEARANCE for defendant Zirkle Fruit Co ; Atty Ryan M Edgley appearing (PP) (Entered: 03/30/2000)
3 ATTORNEY APPEARANCE for defendant Matson Fruit Company ; Atty Ryan M Edgley appearing (PP) (Entered: 03/30/2000)
4 WAIVER of SERVICE by defendant Zirkle Fruit Co, defendant Matson Fruit Company ; (PP) (Entered: 03/30/2000)
5 WAIVER of SERVICE by defendant Selective Employment ; (PP) (Entered: 03/31/2000)
6 NOTICE of Recusal & ORDER of Reassignment by Chief Judge Wm. Fremming Nielsen case reassigned from Senior Judge Alan A. McDonald to Judge Fred L. Van Sickle (cc: all counsel, Judges McDonald & Van Sickle) (SAP) (Entered: 04/04/2000)

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04/10/2000

7 ORDER of Recusal by Judge Alan A. McDonald and for reassignment (cc: all counsel) (FmrEmp) (Entered: 04/10/2000)

04/11/2000

8 RICO Case Statement by plaintiffs (SAP) (Entered: 04/11/2000)

04/11/2000

9 NOTICE of Appearance for defendant Zirkle Fruit Co; Atty Walter G Meyer Jr appearing (SAP) (Entered: 04/12/2000)

04/17/2000

10 MOTION by plaintiff for attorney Howard Foster to appear pro hac vice (SAP) (Entered: 04/17/2000)

04/17/2000

11 Application Pro Hac Vice for admission to practice on behalf of plaintiffs by attorney Howard W. Foster (SAP) (Entered: 04/17/2000)

04/17/2000

12 Notice by plaintiff of hearing setting motion for attorney Howard Foster to appear pro hac vice [10-1] (w/o oral argument 5/15/00 ) (SAP) (Entered: 04/17/2000)

04/17/2000

13 PROPOSED RECEIVED Order granting application [11-1] & motion for attorney Howard Foster to appear pro hac vice [10-1] submitted by plaintiffs (SAP) (Entered: 04/17/2000)

04/19/2000

14 ORDER by Judge Fred L. Van Sickle granting motion for attorney Howard Foster to appear pro hac vice [10-1] (cc: all counsel) (SAP) (Entered: 04/20/2000)

05/31/2000

15 MOTION by defendants Zirkle Fruit Co & Matson Fruit Company to dismiss (SAP) (Entered: 06/02/2000)

05/31/2000

16 MOTION by defendants Zirkle Fruit Co & Matson Fruit Company to stay discovery (SAP) (Entered: 06/02/2000)

05/31/2000

17 Memorandum by defendants Zirkle Fruit Co & Matson Fruit Company in support of motion to dismiss [15-1], motion to stay discovery [16-1] (SAP) (Entered: 06/02/2000)

05/31/2000

18 MOTION by defendants Zirkle Fruit Co & Matson Fruit Company to exceed page limit (SAP) (Entered: 06/02/2000)

05/31/2000

19 Notice by defendants Zirkle Fruit Co & Matson Fruit Company of hearing setting motion to dismiss [15-1] w/oral argument 1:00 7/12/00 Spokane, WA & setting motion to stay discovery [16-1] w/oral argument 1:00 7/12/00 Spokane, WA (SAP) (Entered: 06/02/2000)

05/31/2000

20 AFFIDAVIT of mailing by defendants Zirkle Fruit Co & Matson Fruit Company of: docs #15-19 (SAP) (Entered: 06/02/2000)

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06/02/2000

21 MOTION by defendant Selective Employment to dismiss (SAP) (Entered: 06/06/2000)

06/14/2000

22 MOTION by plaintiff to exceed page limitations (VR) (Entered: 06/14/2000)

06/14/2000

23 Response by plaintiff to defendants' motion to dismiss [21-1], motion to stay discovery [16-1], motion to dismiss [15-1] (VR) (Entered: 06/14/2000)

06/14/2000

24 Notice by plaintiff of hearing setting motion to exceed page limitations [22-1] (w/o oral argument 7/24/00 ) (VR) (Entered: 06/14/2000)

06/14/2000

25 PROPOSED RECEIVED order re: motion to exceed page limitations [22-1] submitted by plaintiff (VR) (Entered: 06/14/2000)

06/15/2000

26 RE-Notice by defendant Zirkle Fruit Co, defendant Matson Fruit Company of hearing setting motion to stay discovery [16-1] w/oral argument 10:30 7/28/00 in Yakima, WA, setting motion to dismiss [151] w/oral argument 10:30 7/28/00 in Yakima, WA (SAP) (Entered: 06/19/2000)

06/21/2000

27 ORDER by Judge Fred L. Van Sickle granting pltfs' motion to exceed page limitations [22-1] (cc: all counsel) (SAP) (Entered: 06/21/2000)

06/27/2000

28 MOTION by defendant Selective Employment to dismiss for lack of subject matter jurisdiction (LE) (Entered: 06/29/2000)

06/27/2000

29 Memorandum by defendant Selective Employment in support of motion to dismiss for lack of subject matter jurisdiction [28-1] (LE) (Entered: 06/29/2000)

06/27/2000

30 Notice by defendant Selective Employment of hearing setting motion to dismiss for lack of subject matter jurisdiction [28-1]; oral argument 10:30 7/28/00 Yakima, WA (LE) (Entered: 06/29/2000)

07/10/2000

31 Response by plaintiffs to motion to dismiss for lack of subject matter jurisdiction [28-1], [21-1] (SAP) (Entered: 07/12/2000)

07/10/2000

32 ORDER rescheduling oral arg on motions to dismiss by Judge Fred L. Van Sickle setting motion to dismiss [15-1] with oral arg 10:00 7/27/00 Yakima, WA, setting motion to dismiss for lack of subject matter jurisdiction [28-1] with oral arg 10:00 7/27/00 Yakima, WA (cc: all counsel) (SAP) (Entered: 07/12/2000)

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07/18/2000

33 Reply Memorandum by defendant Selective Employment to Pltfs' Response Memorandum in Opposition to dft Selective's motion to dismiss for lack of subject matter jurisdiction [28-1] (LE) (Entered: 07/19/2000)

07/26/2000

34 Renoted Hearing Notice by plaintiffs of hearing setting motion to stay discovery [16-1] w/oral argument 1:00 8/31/00 Yakima, WA, setting motion to dismiss [15-1] w/oral argument 1:00 8/31/00 Yakima, WA (SAP) (Entered: 07/27/2000)

08/15/2000

35 MOTION & Affidavit by defendants Zirkle Fruit Co & Matson Fruit Company to file post-deadline brief (SAP) (Entered: 08/17/2000)

08/15/2000

36 Reply Memorandum by defendants Zirkle Fruit Co & Matson Fruit Company to Memorandum in Opposition to motion to dismiss [15-1] (SAP) (Entered: 08/17/2000)

08/15/2000

37 AFFIDAVIT of mailing by defendants Zirkle Fruit Co & Matson Fruit Company of: #35 & 36 (SAP) (Entered: 08/17/2000)

08/18/2000

38 MOTION & Affidavit by defendants Matson Fruit Company & Zirkle Fruit Co to expedite hrg re motion to file post-deadline brief (SAP) (Entered: 08/22/2000)

08/18/2000

39 Notice by defendants Matson Fruit Company & Zirkle Fruit Co of hearing setting motion to expedite hrg [38-1] (w/o oral argument 8/31/00 ) (SAP) (Entered: 08/22/2000)

08/18/2000

40 PROPOSED RECEIVED Order re: motion to expedite hrg [38-1] submitted by defendants Matson Fruit Company & Zirkle Fruit Co (SAP) (Entered: 08/22/2000)

08/21/2000

Status Conference Notice ;telephonic status conf 8:30 9/15/00 Spokane, WA (PW) (Entered: 08/21/2000)

08/23/2000

41 Report by plaintiffs of the parties' planning meeting pur FRCP 26 (SAP) (Entered: 08/23/2000)

08/31/2000

42 MINUTES: In-court hrg held re motion to dismiss before Chief Judge Fred L. Van Sickle Hrg Location: Yakima; Sue Haney court reporter (SAP) (Entered: 09/05/2000)

09/08/2000

43 Supplemental Memorandum by plaintiffs in response to new issues raised in defts' motion reply [36-1] & at oral agr (SAP) (Entered: 09/11/2000)

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09/12/2000

44 Response by defendant Zirkle Fruit Co, defendant Matson Fruit Company to supplemental memorandum [43-1] (SAP) (Entered: 09/15/2000)

09/26/2000

45 Notice of Substitution of counsel: Ryan Edgley replacing Halverson & Applegate w/co-counsel Walter Meyer at atty for Zirkle Fruit Co (SAP) (Entered: 09/27/2000)

09/27/2000

46 ORDER granting defts' motion to dismiss & remanding cause to state court by Chief Judge Fred L. Van Sickle granting motion to dismiss [151]; complaint is dismissed w/out lv to amend; all remaining state law claims are remanded to state court terminating case COB-175-97 (cc: all counsel) (SAP) (Entered: 09/28/2000)

09/28/2000

47 ATTORNEY APPEARANCE for defendant Matson Fruit Company ; Atty Terrence Colin Schmalz appearing (FmrEmp) (Entered: 09/29/2000)

09/28/2000

48 NOTICE OF ASSOCIATION for defendant Matson Fruit Company ; Atty appearing Ryan M. Edgley (VR) (Entered: 10/02/2000)

09/28/2000

49 Affidavit of mailing by Matson Fruit Company re: attorney [48-1] (VR) (Entered: 10/02/2000)

10/11/2000

50 MOTION by plaintiff for reconsideration (LE) (Entered: 10/12/2000)

10/11/2000

51 Notice by plaintiff of hearing setting motion for reconsideration [50-1] (w/o oral argument 11/13/00 ) (LE) (Entered: 10/12/2000)

10/11/2000

52 [Proposed] FIRST AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM re: complaint [1-1] (LE) (Entered: 10/12/2000)

10/23/2000

53 Response by dfts Zirkle Fruit Co, Matson Fruit Company to motion for reconsideration [50-1] (LE) (Entered: 10/24/2000)

10/23/2000

54 Proof of service by Zirkle Fruit Co, Matson Fruit Company of: #53 (LE) (Entered: 10/24/2000)

10/30/2000

55 Reply by plaintiffs re motion for reconsideration [50-1] (SAP) (Entered: 10/30/2000)

02/14/2001

56 ORDER by Chief Judge Fred L. Van Sickle denying motion for reconsideration [50-1] (cc: all counsel) (SAP) (Entered: 02/14/2001)

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03/15/2001

57 Notice of appeal by plaintiff from Dist. Court decision Order Denying Reconsideration and Order Remanding to State Court[56-1], (cc: all counsel and 9CCA) (KH) (Entered: 03/15/2001)

03/15/2001

58 Copy 9CCA Docket Fee Payment Notification form. Original Fee Payment form, case information sheet and copy of docket entries forwarded to 9CCA. (KH) (Entered: 03/15/2001)

03/27/2001

59 TRANSCRIPT DESIGNATION AND ORDER. Date appl filed: 3/15/01 CR: Susan Haney (Plaintiff's/Appellants do not intend to disignate any portion of the transcript) cc:9CCA (KH) (Entered: 03/27/2001)

03/27/2001

60 Notice Concerning Transcript of Proceedings (KH) (Entered: 03/27/2001)

06/28/2001

61 REPORTER'S TRANSCRIPT FILED. CR : Susan E. Haney Judge Fred L. Van Sickle City : Yakima For date of 8/31/00 Type of Proceeding: Motion to Dismiss (VR) (Entered: 06/29/2001)

12/07/2001

62 Copy 9CCA certificate of record - Original forwarded to 9CCA (KH) (Entered: 12/07/2001)

05/01/2002

Clerk's record on appeal forwarded to 9CCA. 9CCA: 01-35276 Files 1 and 2 and Volume 80 (RF) (Entered: 05/01/2002)

10/31/2002

63 Mandate from 9CCA. 9CCA: 01-35276 reversing and remanding the Decision of the District Court [Appeal [57-1] (cc: all counsel) (RF) (Entered: 10/31/2002)

11/01/2002

64 ORDER SETTING STATUS CONFERENCE by Chief Judge Fred L. Van Sickle Telephonic status conference set 9:00 12/6/02 Spokane, WA with Plaintiff to initiate the call; The parties shall file a joint status report on or before 12/2/02 (cc: all counsel) (RF) (Entered: 11/01/2002)

11/12/2002

65 Notice of Association by defendant Matson Fruit Company for attorney Terry C Schmalz with Ryan Edgley (RF) (Entered: 11/14/2002)

11/27/2002

66 Defendant Zirkle Fruit Co's Answer to Plaintiff's Complaint (RF) (Entered: 11/29/2002)

11/27/2002

67 ANSWER of defendant Matson Fruit Company (RF) (Entered: 12/02/2002)

12/02/2002

68 Joint Status Certificate and Discovery Plan filed by defendants (RF) (Entered: 12/04/2002)

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12/03/2002

69 ANSWER by defendant Selective Employment (RF) (Entered: 12/05/2002)

12/06/2002

70 MINUTES: Hearing Location: Spokane, WA CR/ER: No before Chief Judge Fred L. Van Sickle STATUS/SCHED CONFERENCE HELD 12/6/02 , termed conf ddl order forthcoming (LE) (Entered: 12/06/2002)

12/09/2002

71 Certificate of Service by defendant Matson Fruit Company of: Answer of Defendant (RF) (Entered: 12/10/2002)

12/10/2002

72 Scheduling Conference Order by Chief Judge Fred Van Sickle Telephonic status conference held; Telephonic conference re: settlement status report set 8:30 4/23/03; The Court will initiate the call; Disp mtn ddl: 1/9/04; discovery to be complete 12/31/03; pretrial conference 8:30 4/6/04 Yakima, WA; Exhibit & Witness Lists ddl: 2/6/04; Trial briefs, proposed findings of fact and conclusions of law ddl: 4/12/04; trial 9:00 4/26/04 Yakima, WA Counsel shal meet in Chambers at 8:30 (cc:all counsel) (RF) (Entered: 12/10/2002)

12/12/2002

73 Plaintiffs' Jury Demand by plaintiff Olivia Mendoza and plaintiff Juana Mendiola (RF) (Entered: 12/12/2002)

12/12/2002

74 Plaintiffs' MOTION by plaintiffs Olivia Mendoza and Juana Mendiola for leave to file first amended complaint (RF) (Entered: 12/12/2002)

12/12/2002

75 Notice of Hearing by plaintiffs Olivia Mendoza and Juana Mendiola setting motion for leave to file first amended complaint [74-1] (w/o oral argument 1/14/03 ) (RF) (Entered: 12/12/2002)

12/12/2002

76 PROPOSED RECEIVED Order Granting Motion for Leave to File Amended Complaint re: motion for leave to file first amended complaint [74-1] submitted by plaintiffs (RF) (Entered: 12/12/2002)

12/17/2002

Appeal record returned from 9CCA. 9CCA: 01-35276 Files 1 & 2 and Expando 80 (RF) (Entered: 12/17/2002)

01/07/2003

77 MOTION by plaintiffs Olivia Mendoza and Juana Mendiola for the court to take supplemental jurisdiction over Selective Employment Agency, Inc (RF) (Entered: 01/07/2003)

01/07/2003

78 Memorandum by plaintiffs Olivia Mendoza and Juana Mendiola in support of motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] (RF) (Entered: 01/07/2003)

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01/07/2003

79 Notice of Hearing by plaintiff Olivia Mendoza, plaintiff Juana Mendiola setting motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] (w/o oral argument 2/7/03 ) (RF) (Entered: 01/07/2003)

01/07/2003

80 PROPOSED RECEIVED Order Granting Motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [771] submitted by plaintiff Olivia Mendoza, plaintiff Juana Mendiola (RF) (Entered: 01/07/2003)

01/14/2003

81 PROPOSED RECEIVED Stipulation and Order to Extend the Date for Defendant to serve its responses to Plaintiffs' First Interrogatories submitted by defendant Zirkle Fruit Co (RF) (Entered: 01/14/2003)

01/15/2003

82 Stipulation and ORDER to Extend the Date for the Defendant Zirkle Fruit Co to serve its Responses to Plaintiff's First Interrogatories and Request for Production of Documents to Defendant Zirkle Fruit Co by Chief Judge Fred Van Sickle : Zirkle Fruit Co. responses ddl: shall be extended from 1/15/03 to 1/27/03 (cc: all counsel) (RF) (Entered: 01/15/2003)

01/21/2003

83 Notice of Hearing by defendant Selective Employment setting Plaintiff's motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] with live oral argument 2:30 3/19/03 Yakima, WA (RF) (Entered: 01/23/2003)

01/21/2003

84 Memorandum by defendant Selective Employment in opposition to Plaintiff's motion for the court to take supplemental jurisdiction [77-1] (RF) (Entered: 01/23/2003)

01/27/2003

85 ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT by Magistrate Judge Cynthia Imbrogno granting motion for leave to file first amended complaint [74-1] (cc: all counsel) (RF) (Entered: 01/27/2003)

01/28/2003

86 Reply Memorandum by plaintiffs in support of Plaintiffs' motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] (RF) (Entered: 01/28/2003)

02/03/2003

87 Notice of Filing by plaintiff Olivia Mendoza, plaintiff Juana Mendiola (RF) (Entered: 02/03/2003)

02/03/2003

88 FIRST AMENDED COMPLAINT CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM (RF) (Entered: 02/03/2003)

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02/18/2003

89 AMENDED ANSWER to Plaintiff's First Amended Complaint by defendant Zirkle Fruit Co (RF) (Entered: 02/19/2003)

02/27/2003

90 MOTION by plaintiffs Olivia Mendoza and Juana Mendiola to compel Production of I-9 Forms and for attorney fees (RF) (Entered: 02/27/2003)

02/27/2003

91 Memorandum by plaintiffs Olivia Mendoza and Juana Mendiola in support of motion to compel Production of I-9 Forms [90-1] and motion for attorney fees [90-2] (RF) (Entered: 02/27/2003)

02/27/2003

92 Notice of Hearing by plaintiffs Olivia Mendoza and Juana Mendiola setting motion to compel Production of I-9 [90-1] (w/o oral argument 3/31/03 ), setting motion for attorney fees [90-2] (w/o oral argument 3/31/03 ) (RF) (Entered: 02/27/2003)

02/27/2003

93 CERTIFICATE OF COMPLIANCE by plaintiffs Olivia Mendoza and Juana Mendiola with LR 37.1 in Connection with Plaintiffs' Motion to Compel Production of I-0 Forms and for Attorneys' Fees (RF) (Entered: 02/27/2003)

02/27/2003

94 PROPOSED RECEIVED Order Granting Plaintiffs' motion to compel Production of I-9 Forms [90-1] and motion for attorney fees [90-2] submitted by plaintiff Olivia Mendoza, plaintiff Juana Mendiola (RF) (Entered: 02/27/2003)

03/03/2003

95 ORDER RESCHEDULING ORAL ARGUMENT by Chief Judge Fred Van Sickle setting motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] with oral arg 3:00 3/18/03 Yakima, WA (cc: all counsel) (RF) (Entered: 03/03/2003)

03/04/2003

96 PROPOSED RECEIVED Stipulated Order Modifying Scheduling Order submitted by plaintiffs Olivia Mendoza and Juana Mendiola (RF) (Entered: 03/04/2003)

03/06/2003

97 ANSWER by defendant Matson Fruit Company to the First Amended Class Action Complaint (RF) (Entered: 03/10/2003)

03/11/2003

98 Certificate of Mailing by defendant Matson Fruit Company of: Answer of Matson Fruit Company (RF) (Entered: 03/11/2003)

03/11/2003

99 ORDER STRIKING ORAL ARGUMENT by Judge Wm. Fremming Nielsen Request for oral argument has been withdrawn; Oral argument scheduled on 3/18/03 at 3:00 in Yakima, WA is STRICKEN , (cc: all counsel) (RF) (Entered: 03/11/2003)

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03/13/2003

100 Affidavit of Ryan Edgley by Defendants Zirkle Fruit Co and Matson Fruit Company Opposing motion to compel Production of I-9 Forms (RF) (Entered: 03/14/2003)

03/13/2003

103 Certified Statement of Grant Goss by defendant Selective Employment (RF) (Entered: 03/17/2003)

03/13/2003

104 Memorandum by defendant Selective Employment in opposition to motion to compel Production of I-9 Forms [90-1] (RF) (Entered: 03/17/2003)

03/13/2003

139 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

140 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

141 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

142 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

143 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

144 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/13/2003

145 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

03/14/2003

101 Selective Employment's Supplemental Memorandum of Authority (RF) (Entered: 03/17/2003)

03/14/2003

102 Matson Fruit Company's Memorandum Opposing to motion to compel Production of I-9 Forms [90-1] (RF) (Entered: 03/17/2003)

03/18/2003

105 PROPOSED RECEIVED Stipulated Protective Order Governing Confidentiality submitted by plaintiff (RF) (Entered: 03/18/2003)

03/19/2003

106 PROPOSED RECEIVED Stipulated Order Extending Time for Response to Motion to Compel Production of I-9 Forms submitted by defendant Zirkle Fruit Co, defendant Matson Fruit Company, defendant Selective Employment (RF) (Entered: 03/19/2003)

03/21/2003

107 NOTICE OF ADDITION OF COUNSEL for defendant Matson Fruit Company; Atty Lawrence Edwin Martin appearing (RF) (Entered: 03/21/2003)

03/21/2003

108 MOTION by plaintiff Olivia Mendoza, plaintiff Juana Mendiola to exceed page limitation (RF) (Entered: 03/21/2003)

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03/21/2003

109 Notice of Hearing by plaintiff Olivia Mendoza, plaintiff Juana Mendiola setting motion to exceed page limitation [108-1] (w/o oral argument 3/31/03 ) (RF) (Entered: 03/21/2003)

03/21/2003

110 Reply by plaintiffs Olivia Mendoza and Juana Mendiola in support of motion to compel Production of I-9 Forms [90-1] (RF) (Entered: 03/21/2003)

03/21/2003

111 PROPOSED RECEIVED Order Granting motion to exceed page limitation [108-1] submitted by plaintiff Olivia Mendoza, plaintiff Juana Mendiola (RF) (Entered: 03/21/2003)

03/26/2003

112 ORDER AMENDING SCHEDULING CONFERENCE ORDER by Chief Judge Fred Van Sickle re: Proposed Stipulated Order Modifying Scheduling Order [96-1] Amending Ct Rec 72 Scheduling Conference Order (See Order) (cc: all counsel) (RF) (Entered: 03/26/2003)

03/26/2003

113 STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIALITY by Chief Judge Fred Van Sickle (see order) (cc: all counsel) (RF) Modified on 07/28/2004 (Entered: 03/26/2003)

03/27/2003

114 Proof of service by defendant Matson Fruit Company of: Memorandum Opposing Mtn to Compel Production of I-9 Forms (LE) (Entered: 03/27/2003)

03/27/2003

115 NOTICE OF ATTORNEY APPEARANCE AND ASSOCIATION OF COUNSEL for defendants Zirkle Fruit Co and Matson Fruit Company ; Atty James Alexander Smith Jr and Alexander A Baehr appearing (RF) (Entered: 03/31/2003)

03/28/2003

116 Certificate of Service by defendant Zirkle Fruit Co and defendant Matson Fruit Company of: Notice of Appearance and Association of Counsel (RF) (Entered: 03/31/2003)

04/04/2003

117 MOTION by plaintiffs to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses (RF) (Entered: 04/04/2003)

04/04/2003

118 Memorandum by plaintiffs in support of motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses [117-1] (RF) (Entered: 04/04/2003)

04/04/2003

119 Notice of Hearing by plaintiff setting motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses [117-1] (w/o oral argument 5/5/03 ) (RF) (Entered: 04/04/2003)

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04/04/2003

120 PROPOSED RECEIVED Order Granting motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses [117-1] submitted by plaintiff (RF) (Entered: 04/04/2003)

04/07/2003

121 MOTION by plaintiffs Olivia Mendoza and Juana Mendiola to compel and for attorney fees (RF) (Entered: 04/07/2003)

04/07/2003

122 Notice of Hearing by plaintiffs Olivia Mendoza and Juana Mendiola setting motion to compel [121-1] (w/o oral argument 5/8/03 ), setting motion for attorney fees [121-2] (w/o oral argument 5/8/03 ) (RF) (Entered: 04/07/2003)

04/07/2003

123 Memorandum of Points and Authorities by plaintiffs Olivia Mendoza and Juana Mendiola in support of motion to compel [121-1] and in support of motion for attorney fees [121-2] (RF) (Entered: 04/07/2003)

04/07/2003

124 CERTIFICATE OF COMPLIANCE with LR 37.1 in Connection wtih Plaintiffs' Motion to Compel and for Attorney Fees by plaintiffs Olivia Mendoza and Juana Mendiola (RF) (Entered: 04/07/2003)

04/07/2003

125 PROPOSED RECEIVED Order Granting Motion to Compel and for Attorney Fees re: motion to compel [121-1], motion for attorney fees [121-2] submitted by plaintiff (RF) (Entered: 04/07/2003)

04/10/2003

126 STIPULATED ORDER by Chief Judge Fred Van Sickle Extending Time for Response to Motion to Compel Production of I-9 Forms (cc: all counsel) (RF) (Entered: 04/10/2003)

04/10/2003

127 ORDER by Chief Judge Fred Van Sickle granting motion to exceed page limitation [108-1] (cc: all counsel) (RF) (Entered: 04/10/2003)

04/18/2003

129 Defendant Zirkle Fruit Co's Memorandum in opposition to motion to strike defendants Matson Fruit Co and Zirkle Co's affirmative defenses [117-1] (RF) (Entered: 04/22/2003)

04/18/2003

130 Affidavit of Mark D Watson by Zirkle Fruit Co in support of Defendant Zirkle Fruit Company's Request to File Amended Answer (RF) (Entered: 04/22/2003)

04/18/2003

131 Certificate of Service by defendant Zirkle Fruit Co of: Memorandum in Opposition to Plaintiff's Motion to Strike and Affidavit of Mark D Watson (RF) (Entered: 04/22/2003)

04/18/2003

132 MOTION by USA to quash Subpoena (RF) (Entered: 04/22/2003)

04/18/2003

133 Memorandum by USA in support of motion to quash Subpoena [132-1] (RF) (Entered: 04/22/2003)

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04/18/2003

134 Notice of Hearing by USA setting motion to quash Subpoena [132-1] (w/o oral argument 5/23/03 ) (RF) (Entered: 04/22/2003)

04/18/2003

135 United States Objection to Subpoena (RF) (Entered: 04/22/2003)

04/18/2003

136 Matson Fruit Company's Memorandum in opposition to motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses . . . [117-1] (RF) Modified on 04/22/2003 (Entered: 04/22/2003)

04/18/2003

136 . . . Alternatively MOTION by defendant Matson Fruit Company to amend Answer (RF) (Entered: 04/22/2003)

04/21/2003

128 Joint Settlement Status Report filed by defendant Selective Employment (RF) (Entered: 04/21/2003)

04/22/2003

137 Stipulation and ORDER by Chief Judge Fred Van Sickle Extending date for Defendants Zirkle Fruit Company and Matson Fruit Company to Submit their Response to Plaintiffs' Motion to Strike: (cc: all counsel) (RF) (Entered: 04/22/2003)

04/22/2003

138 Certificate of Service by USA of: USA's Objection to Subpoena, Motion of Quash Subpoena and Notice of Hearing (RF) (Entered: 04/24/2003)

04/24/2003

146 RESERVED for Court's Use (RF) (Entered: 04/24/2003)

04/25/2003

147 ORDER by Chief Judge Fred Van Sickle granting motion for the court to take supplemental jurisdiction over Selective Employment Agency, Inc [77-1] granted in part and denied in part [90-1] motion to compel Production of I-9 Forms, granted in part and denied in part [90-2] motion for attorney fees is DENIED (cc: all counsel) (RF) (Entered: 04/25/2003)

04/25/2003

148 Plaintiffs' Reply by plaintiff Olivia Mendoza, plaintiff Juana Mendiola re motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's affirmative defenses [117-1] (RF) (Entered: 04/25/2003)

04/25/2003

149 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle Telephonic motion hearing Order forthcoming (RF) (Entered: 04/28/2003)

04/29/2003

150 Response by plaintiff to motion to quash Subpoena [132-1] (VR) (Entered: 04/30/2003)

04/29/2003

151 PROPOSED RECEIVED Order requiring compliance with subpoena [150-1] submitted by plaintiff (VR) (Entered: 04/30/2003)

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05/02/2003

155 Objections by defendant Matson Fruit Company to proposed order requiring Government to Comply with Subpoena 151-1] (RF) (Entered: 05/06/2003)

05/05/2003

152 Defendant Zirkle Fruit Company's Response/Reply to the Government's motion to quash Subpoena [132-1] and Plaintiffs' Response (RF) (Entered: 05/05/2003)

05/05/2003

153 Affidavit of Mark D Watson by Zirkle Fruit Company re: I-9 Materials (RF) (Entered: 05/05/2003)

05/05/2003

154 Certificate of Service by defendant Zirkle Fruit Co of: Zirkle Fruit Co's Response/Reply to Government's Motion to Quash and Affidavit of Mark D Watson (RF) (Entered: 05/05/2003)

05/06/2003

156 Certificate of Mailing by defendants Zirkle Fruit Co, and Matson Fruit Company of: Objection to Proposed Order Requiring Government to Comply with Subpoena (RF) (Entered: 05/06/2003)

05/09/2003

157 Plaintiffs' Memorandum Concerning (1) the Propriety of Bifurcation and (2) the Lack of Necessity of a Discovery Master (RF) (Entered: 05/09/2003)

05/09/2003

158 Memorandum by defendant Matson Fruit Company in support of Bifurcation and Opposing Appointment of a Discovery Master (RF) (Entered: 05/13/2003)

05/09/2003

159 Defendant Zirkle Fruit Company's Brief on Bifurcation and Discovery Master (RF) (Entered: 05/13/2003)

05/12/2003

160 United States Reply to Parties Responses to Motion to Quash [152-1] [150-1] (RF) (Entered: 05/14/2003)

05/22/2003

161 United States MOTION to continue hearing on motion to quash subpoena and for order shortening time (RF) (Entered: 05/27/2003)

05/22/2003

162 Declaration of Robert Ellis by USA in support of motion to continue hearing on motion to quash subpoena [161-1] and motion for order shortening time [161-2] (RF) (Entered: 05/27/2003)

05/22/2003

163 United States MOTION by USA to quash subpoena (RF) (Entered: 05/27/2003)

05/22/2003

164 Declaration of Robert Ellis by USA in support of motion to quash subpoena [163-1] (RF) (Entered: 05/27/2003)

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05/22/2003

165 Notice of Hearing by USA setting motion to continue hearing on motion to quash subpoena [161-1] (w/o oral argument <date not set> ), setting motion for order shortening time [161-2] (w/o oral argument <date not set> ) (RF) (Entered: 05/27/2003)

05/22/2003

166 United States MOTION by USA to extend time to file supporting declaration and memorandum (RF) (Entered: 05/27/2003)

05/22/2003

167 Notice of Hearing by USA setting motion to quash subpoena [163-1] with oral argument 1:00 6/10/03 Yakima, WA (RF) (Entered: 05/27/2003)

05/22/2003

168 United States Objection to Subpoena (RF) (Entered: 05/27/2003)

06/03/2003

169 Plaintiff's MOTION by plaintiffs Olivia Mendoza and Juana Mendiola for Leave to File Second Amended Complaint (RF) (Entered: 06/03/2003)

06/03/2003

170 Notice of Hearing by plaintiff setting motion for Leave to File Second Amended Complaint [169-1] (w/o oral argument 7/7/03 ) (RF) (Entered: 06/03/2003)

06/03/2003

171 Memorandum by plaintiff in support of motion for Leave to File Second Amended Complaint [169-1] (RF) (Entered: 06/03/2003)

06/03/2003

172 PROPOSED RECEIVED Order Granting Motion for Leave to File Second Amended Complaint [169-1] submitted by plaintiff (RF) (Entered: 06/03/2003)

06/03/2003

173 MOTION by plaintiff to Modify Scheduling Order (RF) (Entered: 06/03/2003)

06/03/2003

174 Memorandum by plaintiff in Support of Motion to Modify Scheduling Order [173-1] (RF) (Entered: 06/03/2003)

06/03/2003

175 Declaration of Andrew M Volk by plaintiff in Support of Plaintiff's Motion to Modify Scheduling Order [173-1] (RF) (Entered: 06/03/2003)

06/03/2003

176 Notice of Hearing by plaintiff setting Motion to Modify Scheduling Order [173-1] (w/o oral argument 7/7/03 ) (RF) (Entered: 06/03/2003)

06/03/2003

177 PROPOSED RECEIVED Order Granting Motion to Modify Scheduling Order [173-1] submitted by plaintiff (RF) (Entered: 06/03/2003)

06/12/2003

178 United States Objection to Subpoena (RF) (Entered: 06/16/2003)

06/12/2003

179 Memorandum by USA in support of motion to quash subpoena [163-1] (RF) (Entered: 06/16/2003)

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06/12/2003

180 Declaration of James Yi by USA (RF) (Entered: 06/16/2003)

06/12/2003

181 Certificate of Service by USA of: Court Record 178-181 (RF) (Entered: 06/16/2003)

06/20/2003

182 Memorandum by plaintiffs in opposition to motion to quash subpoena [163-1] & ... (SAP) (Entered: 06/23/2003)

06/20/2003

182 ... & Objection to Subpoena by plaintiffs (SAP) (Entered: 06/23/2003)

06/20/2003

183 Declaration of Andrew M. Volk by plaintiffs re memorandum in opposition [182-1] (SAP) (Entered: 06/23/2003)

06/20/2003

184 CERTIFIED Statement of Brendan Monahan by defendant Selective Employment in opposition to motion to Amend Complaint [169-1] (SAP) (Entered: 06/24/2003)

06/20/2003

185 Memorandum by defendant Selective Employment in opposition to motion to amend [169-1] (SAP) (Entered: 06/24/2003)

06/20/2003

186 Memorandum by defendant Selective Employment in opposition to motion to Modify Scheduling Order [173-1] (SAP) (Entered: 06/24/2003)

06/20/2003

187 Memorandum by defendant Matson Fruit Company in opposition to motion to File Second Amended Complaint [169-1] (SAP) (Entered: 06/24/2003)

06/20/2003

188 Affidavit of Ryan Edgley by Matson Fruit Company opposing motion to file second amended complaint re: memorandum in opposition [1871] (SAP) (Entered: 06/24/2003)

06/20/2003

189 MOTION by defendant Zirkle Fruit Co to exceed page limit (re brief in opposition to mtn to amend & modify) (expedited hrg requested) (SAP) (Entered: 06/24/2003)

06/20/2003

190 Notice by defendant Zirkle Fruit Co of hearing setting motion to exceed page limit (re brief in opposition to mtn to amend & modify) [189-1] (w/ o oral argument 4:30 7/7/03 ) (SAP) (Entered: 06/24/2003)

06/20/2003

191 Memorandum by defendant Zirkle Fruit Co in opposition to motion for Leave to File Second Amended Complaint [169-1] & motion to Modify Scheduling Order [173-1] (SAP) (Entered: 06/24/2003)

06/20/2003

192 Affidavit of William Wangler by Zirkle Fruit Co re: memorandum in opposition [191-1] (SAP) (Entered: 06/24/2003)

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06/20/2003

193 Affidavit of Gary Hudson by Zirkle Fruit Co re: memorandum in opposition [191-1] (SAP) (Entered: 06/24/2003)

06/20/2003

194 Affidavit of Mary E. Clark by Zirkle Fruit Co (SAP) (Entered: 06/24/2003)

06/20/2003

195 Affidavit of William Zirkle by Zirkle Fruit Co re: memorandum in opposition [191-1] (SAP) (Entered: 06/24/2003)

06/20/2003

196 RESERVED for Court's Use (SAP) (Entered: 06/24/2003)

06/20/2003

197 Certificate of Service by defendant Zirkle Fruit Co of: docs 189-196 (SAP) (Entered: 06/24/2003)

06/26/2003

198 PROPOSED RECEIVED Stipulation & Order Extending Time for Additional Briefing Regarding Plaintiffs' Motion to File Second Amended Complaint (SAP) (Entered: 06/26/2003)

07/01/2003

199 NOTICE OF ATTORNEY APPEARANCE for plaintiff Olivia Mendoza and plaintiff Juana Mendiola; Atty Michael V Connell appearing (RF) (Entered: 07/02/2003)

07/02/2003

200 Stipulation and ORDER Extending Time for Additional Briefing Regarding Plaintiff's Motion to File Second Amended Complaint by Chief Judge Fred Van Sickle : Defendant's Response due 6/20/03 and Plaintiff's reply due 7/11/03 (cc: all counsel) (RF) (Entered: 07/02/2003)

07/07/2003

201 Affidavit of Daryl Matson by Defendants Opposing motion for Leave to File Second Amended Complaint [169-1] (RF) (Entered: 07/08/2003)

07/10/2003

207 MINUTES: Hearing Location: Yakima CR: Mark Snover before Chief Judge Fred Van Sickle Motion Hearing re: Motion to Quash Subpoena; Order forthcoming (RF) (Entered: 07/14/2003)

07/11/2003

202 MOTION by plaintiff to exceed page limitation Expedited Hearing Requested (CR) (Entered: 07/14/2003)

07/11/2003

203 Notice by plaintiff of hearing setting motion to exceed page limitation [202-1] (w/o oral argument 7/16/03 ) (CR) (Entered: 07/14/2003)

07/11/2003

204 PROPOSED RECEIVED Order Granting Plaintiffs' motion to exceed page limitation [202-1] submitted by plaintiff (CR) (Entered: 07/14/2003)

07/11/2003

205 RESERVED for Court's Use (CR) (Entered: 07/14/2003)

07/11/2003

206 RESERVED for Court's Use (CR) (Entered: 07/14/2003)

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07/18/2003

208 ORDER GRANTING PLAINTIFF'S MOTION TO EXCEED PAGE LIMITATIONS by Chief Judge Fred Van Sickle granting motion to exceed page limitation [202-1] (cc: all counsel) (RF) (Entered: 07/18/2003)

07/18/2003

220 RESERVED for Court's Use (RF) Modified on 10/28/2003 (Entered: 09/03/2003)

07/21/2003

Law Clerk assigned to case is 01 (from 02) (PW) (Entered: 07/21/2003)

07/22/2003

209 Zirkle Fruit Company's Objection and MOTION to strike the "Affidavits" of Sylvia Garfias-Garcia, Daniel Sanchez and Victor Sanchez and Objection and Motion to strike/defer Plaintiffs' equitable tolling argument (RF) (Entered: 07/23/2003)

07/22/2003

210 Affidavit of Mark D Watson by Zirkle Fruit Co in support of motion to strike the "Affidavits" of Sylvia Garfias-Garcia, Daniel Sanchez and Victor Sanchez [209-1], motion Objection and Motion to strike/defer Plaintiffs' equitable tolling argument [209-2] (RF) (Entered: 07/23/2003)

07/22/2003

211 Certificate of Service by defendant Zirkle Fruit Co of: Court Record 209-211 (RF) (Entered: 07/23/2003)

07/24/2003

212 Plaintiff's Submission of Candidates for the Position of Discovery Master (RF) (Entered: 07/24/2003)

07/28/2003

213 Notice by defendant Zirkle Fruit Co of hearing setting motion to strike the "Affidavits" of Sylvia Garfias-Garcia, Daniel Sanchez and Victor Sanchez [209-1] (w/o oral argument 4:30 8/8/03 ), setting motion Objection and Motion to strike/defer Plaintiffs' equitable tolling argument [209-2] (w/o oral argument 4:30 8/8/03 ) (CR) (Entered: 07/28/2003)

07/28/2003

214 Proof of service by defendant Zirkle Fruit Co of: #213 (CR) (Entered: 07/28/2003)

07/28/2003

215 Notice by defendant Zirkle Fruit Co of hearing setting motion to exceed page limit (re brief in opposition to mtn to amend & modify) [189-1] (w/ o oral argument 4:30 8/8/03 ) (CR) (Entered: 07/28/2003)

07/28/2003

216 Proof of service by defendant Zirkle Fruit Co of: #215 (CR) (Entered: 07/28/2003)

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07/30/2003

217 ORDER RE: SUBPOENAS by Chief Judge Fred Van Sickle granted in part [132-1] motion to quash Subpoena, the subpoena is limited to information relating to Zirkle Fruit Company, Matson Fruit Company and Selective Employment Agency Inc; granted in part [163-1] motion to quash subpoena; denying motion to compel [121-1], denying motion for attorney fees [121-2] granting motion to continue hearing on motion to quash subpoena [161-1], granting motion for order shortening time [161-2] granting motion to extend time to file supporting declaration and memorandum [166-1] (cc: all counsel) (RF) (Entered: 07/30/2003)

08/04/2003

218 Plaintiffs' Opposition to Zirkle Fruit Co's Objections to and Motion to Strike the "Affidavits" of Sylvia Garfias-Garcia, Daniel Sanchez and Victor Sanchez [209-1], motion Objection and Motion to strike/defer Plaintiffs' equitable tolling argument [209-2] (RF) (Entered: 08/04/2003)

08/14/2003

219 ORDER SETTING ORAL ARGUMENT by Chief Judge Fred Van Sickle setting motion for Leave to File Second Amended Complaint [169-1] telephonic hearing set 9:00 9/30/03 Spokane, WA with Defendant to initiate the call (cc: all counsel) (RF) (Entered: 08/14/2003)

09/11/2003

221 PROPOSED RECEIVED Stipulated Order Re: Email Searches submitted by defendant Zirkle Fruit Co (RF) (Entered: 09/12/2003)

09/12/2003

222 STIPULATED ORDER REGARDING EMAIL SEARCHES by Senior Judge Justin L. Quackenbush (cc: all counsel) (RF) (Entered: 09/12/2003)

09/19/2003

223 ORDER APPOINTING DISCOVERY MASTER by Chief Judge Fred Van Sickle Adding Judge Harold Clarke as Discovery Master (cc: all counsel, Judge Clarke) (RF) (Entered: 09/19/2003)

09/26/2003

Courtroom Deputy Modification (Utility Event) setting motion for Leave to File Second Amended Complaint [169-1] (tele) 9:30 10/9/03 Spokane, WA (PW) (Entered: 09/26/2003)

10/09/2003

224 MINUTES: Hearing Location: Spokane CR: Crystal Glass before Chief Judge Fred Van Sickle Motion hearing held re: Plaintiff's motion to file second amended complaint (RF) (Entered: 10/09/2003)

10/28/2003

225 ORDER SEALING RECORD by Chief Judge Fred Van Sickle Amended Affidavit of Mark Watson in Opposition to Motion to Amend is SEALED (cc: all counsel) (RF) (Entered: 10/28/2003)

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10/29/2003

226 ORDER GRANTING LEAVE TO AMEND by Chief Judge Fred Van Sickle granting Motion for Leave to File Second Amended Complaint [169-1] granting Motion to Modify Scheduling Order [173-1] finding the Motion to amend Answer [136-1] DENIED as moot; finding the motion to strike defendants Matson Fruit Co and Zirkle Fruit Co's defenses [117-1] DENIED as moot; denying motion to strike the "Affidavits" of Sylvia Garfias-Garcia, Daniel Sanchez and Victor Sanchez [209-1], denying motion Objection and Motion to strike/defer Plaintiffs' equitable tolling argument [209-2], granting motion to exceed page limit (re brief in opposition to mtn to amend & modify) [189-1] Existing Scheduling Order is VACATED Telephonic scheduling conf set 8:30 11/18/03 Spokane, WA with Plaintiff's to initiate the call (cc: all counsel) (RF) (Entered: 10/29/2003)

11/06/2003

Summons issued as to Daryl Matson, Roderick Matson, William Zirkle, Gary Hudson, William Wangler (KW) (Entered: 11/07/2003)

11/06/2003

227 SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT AND PENDENT STATE LAW CLAIM re: complaint [1-1]; adding Victor Sanchez, Daryl Matson, Roderick Matson, William Zirkle, Gary Hudson, William Wangler; Jury Trial Demanded (RF) (Entered: 11/10/2003)

11/06/2003

228 Notice of Filing Second Amended Class Action Complaint for Violation of Racketeer Influenced and Corrupt Organization Act and Pendent State Law Claim by plaintiffs (RF) (Entered: 11/10/2003)

11/12/2003

229 NOTICE OF ATTORNEY APPEARANCE for defendants Daryl Matson and Roderick Matson; Atty Ryan M Edgley and Lawrence Edwin Martin appearing (RF) (Entered: 11/13/2003)

11/12/2003

231 Joint Scheduling Certificate (RF) (Entered: 11/17/2003)

11/12/2003 11/12/2003 11/13/2003

232 NOTICE OF ATTORNEY APPEARANCE for defendants Zirkle Fruit Co, William Zirkle, Gary Hudson and William Wangler ; Atty Mark David Watson and Ryan M Edgley appearing (RF) (Entered: 11/17/2003)
233 Certificate of Service by defendants Zirkle Fruit Co, William Zirkle, Gary Hudson and William Wangler of: Notice of Appearance and Certificate of Service (RF) (Entered: 11/17/2003)
230 SUMMONS/RETURN OF SERVICE executed upon defendant Daryl Matson, defendant Roderick Matson, defendant Gary Hudson, defendant William Wangler (RF) (Entered: 11/14/2003)

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11/14/2003

234 Certificate of Mailing by defendant Daryl Matson and defendant Roderick Matson of: Notice of Appearance (RF) (Entered: 11/18/2003)

11/18/2003

235 Plaintiffs' Rico Case Statement (RF) (Entered: 11/20/2003)

11/19/2003 11/20/2003
11/24/2003
11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 11/24/2003 12/02/2003
12/02/2003
12/02/2003

237 SUMMONS/RETURN OF SERVICE executed upon defendant William Zirkle (RF) (Entered: 11/21/2003)
236 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle Scheduling Conference hearing held (RF) (Entered: 11/20/2003)
238 ORDER by Chief Judge Fred Van Sickle clarifying the Order entered 10/29/03 to the extent "Paragraph 7 on page 17 of the Order Granting Leave to Amend is stricken. The following provision is substituted in its place: 7. The dates contained in paragraphs 3-14 of the scheduling order that was etnered on December 10, 2002, are vacated" (cc: all counsel) (RF) (Entered: 11/24/2003)
268 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
269 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
270 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
271 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
272 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
273 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
274 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
275 RESERVED for Court's Use (RF) (Entered: 01/07/2004)
239 MOTION by plaintiffs Olivia Mendoza and Juana Mendiola to compel the Social Security Administration to comply with their subpoena (RF) (Entered: 12/02/2003)
240 Notice of Hearing by plaintiffs Olivia Mendoza and Juana Mendiola setting motion to compel the Social Security Administration to comply with their subpoena [239-1] (w/o oral argument 1/5/04 ) (RF) (Entered: 12/02/2003)
241 PROPOSED RECEIVED Order Granting Motion to Compel the Social Security Administration to comply with their subpoena [239-1] submitted by plaintiff Olivia Mendoza, plaintiff Juana Mendiola (RF) (Entered: 12/02/2003)

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12/02/2003

242 Scheduling Conference Order by Chief Judge Fred Van Sickle Disp mtn ddl: 7/26/04; Mtn in limine ddl: 9/27/04 discovery to be complete 7/19/04; pretrial conference RESET 8:30 10/26/04 Yakima, WA; Jury Trial RESET 9:00 11/15/04 Yakima, WA; telephonic settlement status conf set 8:30 4/29/04 with the Court to initiate the call; trial briefs, proposed voir dire and proposed jury instructions due 11/1/04 (cc:all counsel) (RF) (Entered: 12/02/2003)

12/02/2003

276 RESERVED for Court's Use (RF) (Entered: 01/07/2004)

12/02/2003

277 RESERVED for Court's Use (RF) (Entered: 01/07/2004)

12/03/2003

244 ANSWER by defendant Daryl Matson and defendant Roderick Matson to the Second Amended Class Action Complaint (RF) (Entered: 12/08/2003)

12/05/2003

243 Plaintiffs' Amended Rico Case Statement (RF) (Entered: 12/05/2003)

12/08/2003

245 MOTION by plaintiff for an Extension of Time to Respond to Motion (RF) (Entered: 12/08/2003)

12/08/2003

246 Memorandum by plaintiff in support of motion for an Extension of Time to Respond to Motion [245-1] (RF) (Entered: 12/08/2003)

12/08/2003

247 Notice of Hearing by plaintiff setting motion for an Extension of Time to Respond to Motion [245-1] on an expedited basis (w/o oral argument 1/5/04 ) (RF) (Entered: 12/08/2003)

12/08/2003

248 Certificate of Service by plaintiff of: Court Record 245-248 (RF) (Entered: 12/08/2003)

12/08/2003

249 PROPOSED RECEIVED Order re: motion for an Extension of Time to Respond to Motion [245-1] submitted by plaintiff (RF) (Entered: 12/08/2003)

12/08/2003

250 ANSWER of defendants William Zirkle, Gary Hudson, Zirkle Fruit Co and William Wangler to the Second Amended Class Action Complaint (RF) (Entered: 12/10/2003)

12/17/2003

255 Notice by defendants William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co of withdrawal of Supplemental Motion and Memorandum for Revocation of Pro Hac Vice Permission granted to attorney Howard Foster and Motion for Contempt and Sanctions (RF) (Entered: 12/22/2003)

12/18/2003

251 MOTION by USA for extension of time (RF) (Entered: 12/19/2003)

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12/18/2003

252 Request by USA for expedited hearing (RF) (Entered: 12/19/2003)

12/18/2003

253 PROPOSED RECEIVED Order Granting motion for extension of time [251-1] submitted by USA (RF) (Entered: 12/19/2003)

12/18/2003

254 PROPOSED RECEIVED Order Granting motion for expedited hearing [252-1] submitted by USA (RF) (Entered: 12/19/2003)

12/22/2003

278 RESERVED for Court's Use (RF) (Entered: 01/07/2004)

12/23/2003

256 MOTION by plaintiff for leave to file oversize brief (RF) (Entered: 12/23/2003)

12/23/2003

257 Notice of Hearing by plaintiff of hearing setting motion for leave to file oversize brief [256-1] (w/o oral argument 1/23/04 ) (RF) (Entered: 12/23/2003)

12/23/2003

258 Certificate of service by plaintiff of: Court Record 256, 257, 258 & 259 (RF) (Entered: 12/23/2003)

12/23/2003

259 PROPOSED RECEIVED Order Granting motion for leave to file oversize brief [256-1] submitted by plaintiff (RF) (Entered: 12/23/2003)

12/31/2003

260 ORDER GRANTING REQUEST FOR EXPEDITED HEARING by Chief Judge Fred Van Sickle granting motion for expedited hearing [252-1] (cc: all counsel) (RF) (Entered: 12/31/2003)

12/31/2003

261 ORDER GRANTING EXTENSION OF TIME by Chief Judge Fred Van Sickle granting motion for extension of time [251-1] SSA is allowed until 1/15/04 in which to respond to Plaintiff's Motion to Compel (cc: all counsel) (RF) (Entered: 12/31/2003)

12/31/2003

262 Memorandum by plaintiffs in support of motion to strike affirmative defenses in Matson's & Zirkle's answers to the second amended class action complaint (SAP) (Entered: 01/02/2004)

12/31/2003

263 Notice by plaintiff of hearing setting w/o oral arg to 2/2/04 motion to strike affirmative defenses in Matson's & Zirkle's answers to the 2nd amended class action complaint (mtn not filed) (SAP) (Entered: 01/02/2004)

12/31/2003

264 PROPOSED RECEIVED Order re: memorandum [262-1] in supp of mtn to strike affirmative defenses (mtn not filed) submitted by plaintiff (SAP) (Entered: 01/02/2004)

01/05/2004

265 NOTICE OF ATTORNEY APPEARANCE for USA; Atty Pamela Jean DeRusha appearing (RF) (Entered: 01/05/2004)

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01/06/2004

266 ORDER GRANTING HOWARD FOSTER'S MOTION FOR LEAVE TO FILE OVERSIZE BRIEF by Chief Judge Fred Van Sickle granting motion for leave to file oversize brief [256-1] (cc: all counsel) (RF) (Entered: 01/06/2004)

01/06/2004

267 MOTION by plaintiff Victor Sanchez, plaintiff Olivia Mendoza, plaintiff Juana Mendiola to strike Defendants' Affirmative Defenses (RF) (Entered: 01/06/2004)

01/07/2004

279 RESERVED for Court's Use (RF) (Entered: 01/07/2004)

01/07/2004

Courtroom Deputy Modification (Utility Event) ; Telephone conf re motion to revoke phv set 9:00 1/13/04 Spokane, WA (PW) (Entered: 01/07/2004)

01/13/2004

280 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle Telephonic hearing re: motion for revoke Howard Foster as Pro Hac Vice Court took matter under advisement; telephonic conference call will be scheduled week of 1/20/04 for court ruling (RF) (Entered: 01/13/2004)

01/13/2004

281 ORDER GRANTING MOTIONS by Chief Judge Fred Van Sickle Parties are to carefully consider whether a document must be sealed; Parties must submit a separate motion and declaration explaining in detail why a document needs to be sealed (cc: all counsel) (RF) (Entered: 01/13/2004)

01/13/2004

282 ORDER GRANTING MOTIONS by Chief Judge Fred Van Sickle granting motion for an Extension of Time to Respond to Motion [245-1] granting motion for leave to file oversize brief [256-1] granting document proposed [253-1] granting motion for expedited hearing [2521] (cc: all counsel) (RF) (Entered: 01/13/2004)

01/13/2004

295 MOTION by defendant Zirkle Fruit Co, defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler to exceed page limitation (RF) (Entered: 01/16/2004)

01/13/2004

296 Notice of Hearing by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co of hearing setting motion to exceed page limitation [291-1] (w/o oral argument 2/17/04 ) (RF) (Entered: 01/16/2004)

01/13/2004

297 MOTION by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co to file under seal Affidavit of Mark Watson (RF) (Entered: 01/16/2004)

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01/13/2004

298 Memorandum by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, Defendant Zirkle Fruit Company in opposition to motion to strike Defendants' Affirmative Defenses [267-1] (RF) (Entered: 01/16/2004)

01/13/2004

325 RESERVED for Court's Use (RF) (Entered: 02/06/2004)

01/13/2004

326 RESERVED for Court's Use (RF) (Entered: 02/06/2004)

01/15/2004

283 MOTION by USA for second extension of time (CR) (Entered: 01/15/2004)

01/15/2004

284 PROPOSED RECEIVED Order granting second extension of time [2831] submitted by USA (CR) (Entered: 01/15/2004)

01/15/2004

285 MOTION by USA for expedited hearing (CR) (Entered: 01/15/2004)

01/15/2004

286 PROPOSED RECEIVED Order granting request for expedited hearing [285-1] submitted by USA (CR) (Entered: 01/15/2004)

01/15/2004

287 MOTION by plaintiff for class certification (RF) (Entered: 01/15/2004)

01/15/2004

288 Memorandum by plaintiff in support of motion for class certification [287-1] (RF) (Entered: 01/15/2004)

01/15/2004

289 Declaration of Andrew M Volk by plaintiffs in support of motion for class certification [287-1] (RF) (Entered: 01/15/2004)

01/15/2004

290 Notice of Hearing by plaintiff setting motion for class certification [2871] (tele argument) 10:00 4/8/04 Spokane, WA (RF) (Entered: 01/15/2004)

01/15/2004

291 MOTION by plaintiff to exceed page limitation (RF) (Entered: 01/15/2004)

01/15/2004

292 Notice of Hearing by plaintiff setting motion to exceed page limitation [291-1] (w/o oral argument 2/17/04 ) (RF) (Entered: 01/15/2004)

01/15/2004

293 PROPOSED RECEIVED Order Granting motion to exceed page limitation [291-1] submitted by plaintiff (RF) (Entered: 01/15/2004)

01/15/2004

294 PROPOSED RECEIVED Order Granting motion for class certification [287-1] submitted by plaintiff (RF) (Entered: 01/15/2004)

01/15/2004

299 Proof of service by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co of: Court Record 295-299 (RF) (Entered: 01/16/2004)

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01/20/2004

300 Notice of Hearing by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, and defendant Zirkle Fruit Co setting motion to file under seal Affidavit of Mark Watson [297-1] (w/o oral argument 2/13/04 ) (RF) (Entered: 01/20/2004)

01/20/2004

301 ORDER GRANTING SECOND EXTENSION OF TIME by Chief Judge Fred Van Sickle granting motion for second extension of time [283-1] SSA is allowed until 1/22/04 to respond to Plaintiff's Motion to Compel; Plaintiffs shall have until 2/5/04 in which to file a reply (cc: all counsel) (RF) (Entered: 01/20/2004)

01/20/2004

302 ANSWER by defendant Selective Employment to Plaintiff's Second Amended Complaint (RF) (Entered: 01/22/2004)

01/22/2004

303 ORDER GRANTING REQUEST FOR EXPEDITED HEARING by Chief Judge Fred Van Sickle granting motion for expedited hearing [285-1] (cc: all counsel) (RF) (Entered: 01/22/2004)

01/22/2004

304 MOTION by USA to quash (RF) (Entered: 01/23/2004)

01/22/2004

305 SSA's Memorandum by USA in support of motion to quash [304-1] (RF) (Entered: 01/23/2004)

01/22/2004

306 Notice of Hearing by USA setting motion to quash [304-1] (w/o oral argument 9:00 2/24/04 ) (RF) (Entered: 01/23/2004)

01/22/2004

307 Certificate of Service by USA of: Court Record 304-307 (RF) (Entered: 01/23/2004)

01/26/2004

308 Plaintiffs' Reply by plaintiff Victor Sanchez, plaintiff Olivia Mendoza, plaintiff Juana Mendiola to motion to strike Defendants' Affirmative Defenses [267-1] (RF) (Entered: 01/27/2004)

01/26/2004

309 Plaintiffs' MOTION by plaintiffs to exceed page limitation (RF) (Entered: 01/27/2004)

01/26/2004

310 Notice of Hearing by plaintiff setting motion to exceed page limitation [309-1] (w/o oral argument 2/27/04 ) (RF) (Entered: 01/27/2004)

01/26/2004

311 PROPOSED RECEIVED Order Granting Motion to exceed page limitation [309-1] submitted by plaintiff (RF) (Entered: 01/27/2004)

01/28/2004

312 MOTION by defendants Zirkle Fruit Company for an Order Compelling Elitigation Technologies/Jeff Lawrence to return E-Mail backup tapes (RF) (Entered: 01/29/2004)

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01/28/2004

313 Notice of Hearing by defendant setting motion for an Order Compelling Elitigation Technologies/Jeff Lawrence to return E-Mail backup tapes [312-1] (w/o oral argument 2/27/04 ) (RF) (Entered: 01/29/2004)

01/28/2004

314 Affidavit of Mark D. Watson by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co in support of motion for an Order Compelling Elitigation Technologies/Jeff Lawrence to return E-Mail backup tapes [312-1] (RF) (Entered: 01/29/2004)

01/28/2004

315 Certificate of service by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co of: Court Record 312-315 (RF) (Entered: 01/29/2004)

02/01/2004

318 Declaration of Service by plaintiff Olivia Mendoza of: Subpoena in a Civil Case to Lucille Gonzalez Meis (RF) (Entered: 02/03/2004)

02/02/2004

316 ORDER GRANTING PLAINTIFFS' MOTION TO EXCEED PAGE LIMITATION by Chief Judge Fred Van Sickle granting motion to exceed page limitation [309-1] (cc: all counsel) (RF) Modified on 02/02/2004 (Entered: 02/02/2004)

02/02/2004

317 ORDER GRANTING PLAINTIFFS' MOTION TO EXCEED PAGE LIMITATIONS by Chief Judge Fred Van Sickle granting motion to exceed page limitation [291-1] (cc: all counsel) (RF) (Entered: 02/02/2004)

02/03/2004

319 ORDER by Chief Judge Fred Van Sickle granting motion to exceed page limitation [295-1] (cc: all counsel) (RF) (Entered: 02/03/2004)

02/05/2004

320 Plaintiffs' MOTION to strike Defendant's Selective Employment Agency Inc.'s Affirmative Defenses (RF) (Entered: 02/05/2004)

02/05/2004

321 Notice of Hearing by plaintiff setting motion to strike Defendant's Selective Employment Agency Inc.'s Affirmative Defenses [320-1] (w/o oral argument 3/8/04 ) (RF) (Entered: 02/05/2004)

02/05/2004

322 Plaintiffs' Reply in support of motion to compel the Social Security Administration to comply with their subpoena [239-1] and opposition to Motion to Quash (RF) (Entered: 02/05/2004)

02/05/2004

323 Reply Declaration of Andrew M Volk by plaintiffs in support of motion to compel the Social Security Administration to comply with their subpoena [239-1] and opposition to motion to quash (RF) (Entered: 02/05/2004)

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02/05/2004

324 PROPOSED RECEIVED Order Granting Motion to Strike Defendant's Selective Employment Agency Inc.'s Affirmative Defenses [320-1] submitted by plaintiff (RF) (Entered: 02/05/2004)

02/06/2004

327 RESERVED for Court's Use (RF) (Entered: 02/06/2004)

02/09/2004

328 Proof of service by plaintiff of: Subpoena to Social Security Administration (RF) (Entered: 02/09/2004)

02/09/2004

329 Proof of service by plaintiff of: Subpoena on Pamela DeRusha Assistant US Attorney (RF) (Entered: 02/09/2004)

02/09/2004

Courtroom Deputy Modification (Utility Event) ; Telephone status conf set 1:30 2/9/04 Spokane, WA (PW) (Entered: 02/09/2004)

02/09/2004

330 MINUTES: Hearing Location: Spokane CR: Mia Bohn before Chief Judge Fred Van Sickle Telephonic hearing re: Motion to Revoke Pro Hac Vice participation of Howard Foster; Motion is DENIED (RF) (Entered: 02/09/2004)

02/09/2004

331 Proof of service by Zirkle Fruit Co, William - Zirkle, Gary Hudson, William - Wangler of: #312-315 (CR) (Entered: 02/10/2004)

02/13/2004

332 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle motion hearing held; order forthcoming (RF) (Entered: 02/13/2004)

02/17/2004

333 JOINT REPORT REGARDING BIFURCATION by plaintiffs, defendants (LE) (Entered: 02/19/2004)

02/18/2004

334 Defendant Selective Employment's Response to Plaintiffs' motion to strike Defendant's Selective Employment Agency Inc.'s Affirmative Defenses [320-1] (RF) (Entered: 02/20/2004)

02/20/2004

335 MOTION by defendant Selective Employment to exceed page limitation (RF) (Entered: 02/23/2004)

02/20/2004

336 Notice of Hearing by defendant Selective Employment setting motion to exceed page limitation [335-1] (w/o oral argument 3/1/04 ) (RF) (Entered: 02/23/2004)

02/20/2004

337 Memorandum by defendant Selective Employment in opposition to motion for class certification [287-1] (RF) (Entered: 02/23/2004)

02/20/2004

338 PROPOSED RECEIVED Order Granting Motion to exceed page limitation [335-1] submitted by defendant Selective Employment (RF) (Entered: 02/23/2004)

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02/20/2004

339 Declaration of Travis W Misfeldt by defendant Selective Employment (RF) (Entered: 02/23/2004)

02/20/2004

340 Declaration of Herb Koreis by defendant Selective Employment (RF) (Entered: 02/23/2004)

02/20/2004

341 Certificate of Transmittal by defendant Selective Employment of: Court Record 335-341 (RF) (Entered: 02/23/2004)

02/23/2004

342 ORDER RE: AFFIRMATIVE DEFENSES by Chief Judge Fred Van Sickle granted in part and denied in part [267-1] motion to strike Defendants' Affirmative Defenses (cc: all counsel) (RF) (Entered: 02/23/2004)

02/23/2004

343 MOTION by defendants Zirkle Fruit Co, William Zirkle, Gary Hudson and William Wangler to seal Affidavit (RF) (Entered: 02/24/2004)

02/23/2004

344 Notice of Hearing by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, defendant Zirkle Fruit Co of hearing setting motion to seal Affidavit [343-1] (w/o oral argument 3/19/04 ) (RF) (Entered: 02/24/2004)

02/23/2004

345 MOTION by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, defendant Zirkle Fruit Co to exceed page limitation re: Memorandum in Opposition to Plaintiffs' Motion for Class Certification (RF) (Entered: 02/24/2004)

02/23/2004

346 Notice of Hearing by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, defendant Zirkle Fruit Co setting motion to exceed page limitation re: Memorandum in Opposition to Plaintiffs' Motion for Class Certification [345-1] (w/o oral argument 3/19/04 ) (RF) (Entered: 02/24/2004)

02/23/2004

347 PROPOSED RECEIVED Order Granting Motion to exceed page limitation re: Memorandum in Opposition to Plaintiffs' Motion for Class Certification [345-1] submitted by defendant William Zirkle, defendant Gary Hudson, William Wangler, defendant Zirkle Fruit Co (RF) (Entered: 02/24/2004)

02/23/2004

348 Memorandum by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler and defendant Zirkle Fruit Co in opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

02/23/2004

349 Affidavit of Michael Gempler by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Company in opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

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02/23/2004

350 Affidavit of Lavonne Josey by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Company in Opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

02/23/2004

351 Affidavit of Gary Hudson by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co in opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

02/23/2004

352 Affidavit of William Wangler by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co in opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

02/23/2004

353 Affidavit of Mark D Watson by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co in opposition to motion for class certification [287-1] (RF) (Entered: 02/24/2004)

02/23/2004

354 Certificate of Service by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, and defendant Zirkle Fruit Co of: Court Record 343-354 (RF) (Entered: 02/24/2004)

02/23/2004

404 RESERVED for Court's Use (RF) (Entered: 04/13/2004)

02/24/2004

355 ORDER GRANTING DEFENDANT SELECTIVE EMPLOYMENT, INC'S MOTION TO EXCEED PAGE LIMITS by Chief Judge Fred Van Sickle granting motion to exceed page limitation [335-1] (cc: all counsel) (RF) (Entered: 02/24/2004)

02/25/2004

356 ORDER by Chief Judge Fred Van Sickle granting motion to exceed page limitation re: Memorandum in Opposition to Plaintiffs' Motion for Class Certification [345-1] (cc: all counsel) (RF) (Entered: 02/25/2004)

02/26/2004

357 MOTION by plaintiff to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order (RF) (Entered: 02/26/2004)

02/26/2004

358 Memorandum by plaintiff in support of motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (RF) (Entered: 02/26/2004)

02/26/2004

359 Declaration of Andrew M Volk by plaintiff in support of motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (RF) (Entered: 02/26/2004)

02/26/2004

360 Notice of Hearing by plaintiff setting motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (w/o oral argument 3/29/04 ) (RF) (Entered: 02/26/2004)

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02/26/2004

361 PROPOSED RECEIVED Order Granting Motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] submitted by plaintiff (RF) (Entered: 02/26/2004)

03/08/2004

362 United States Response to motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (RF) (Entered: 03/10/2004)

03/11/2004

363 Zirkle Defendants' Response to motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (RF) (Entered: 03/12/2004)

03/12/2004

364 Response by defendants Matson to Plaintiffs' motion for class certification [287-1] (RF) (Entered: 03/15/2004)

03/12/2004

365 Declaration of Daryl Matson by defendant Daryl Matson opposing motion for class certification [287-1] (RF) (Entered: 03/15/2004)

03/12/2004

366 Certificate of service by defendant Daryl Matson of: Court Record 364,365,366 (RF) (Entered: 03/15/2004)

03/15/2004

367 ORDER RE: DISCOVERY MOTIONS by Chief Judge Fred Van Sickle granted in part and denied in part [357-1] motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order denying motion to quash [304-1] granted in part and denied in part [239-1] motion to compel the Social Security Administration to comply with their subpoena (cc: all counsel, Discovery Master Judge Harold D Clarke) (RF) (Entered: 03/15/2004)

03/15/2004

368 ORDER by Chief Judge Fred Van Sickle granting motion for an Order Compelling Elitigation Technologies/Jeff Lawrence to return E-Mail backup tapes [312-1] granting motion to strike Defendant's Selective Employment Agency Inc.'s Affirmative Defenses [320-1] to the extent provided in the Court's order of 2/23/04 (cc: all counsel) (RF) (Entered: 03/15/2004)

03/16/2004

369 MOTION by plaintiff to expedite (RF) (Entered: 03/16/2004)

03/16/2004

370 Notice of Hearing by plaintiff setting motion to expedite [369-1] (w/o oral argument 3/22/04 ) (RF) (Entered: 03/16/2004)

03/16/2004

371 MOTION by plaintiff to strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification (RF) (Entered: 03/16/2004)

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03/16/2004

372 Notice of Hearing by plaintiff setting motion to strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification [371-1] (w/o oral argument 3/22/04 ) (RF) (Entered: 03/16/2004)

03/16/2004

373 Reply Declaration of Andrew Volk by plaintiff in support of motion to compel the Department of Homeland Security to Comply with their Subpoena and this Court's Order [357-1] (RF) (Entered: 03/16/2004)

03/16/2004

374 Reply by plaintiff in Support of Plaintiffs' Motion to Compel the Defendant of Homeland Security to Comply with their Subpoena and this Court's Order (RF) (Entered: 03/16/2004)

03/16/2004

375 Memorandum by plaintiffs in support of motion to strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification [371-1] (RF) (Entered: 03/16/2004)

03/16/2004

376 PROPOSED RECEIVED Order Granting Motion to Expedite [369-1] submitted by plaintiff (RF) (Entered: 03/16/2004)

03/16/2004

377 PROPOSED RECEIVED Order Granting Motion to Strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification [371-1] submitted by plaintiff (RF) (Entered: 03/16/2004)

03/19/2004

378 MOTION by plaintiff to file exhibits under seal (RF) (Entered: 03/19/2004)

03/19/2004

379 Notice of Hearing by plaintiff setting motion to file exhibits under seal [378-1] (w/o oral argument 3/22/04 ) (RF) (Entered: 03/19/2004)

03/19/2004

380 PROPOSED RECEIVED Order Granting motion to file exhibits under seal [378-1] submitted by plaintiff (RF) (Entered: 03/19/2004)

03/19/2004

381 MOTION by plaintiff to exceed page limitation (RF) (Entered: 03/19/2004)

03/19/2004

382 Notice of Hearing by plaintiff setting motion to exceed page limitation [381-1] (w/o oral argument 3/22/04 ) (RF) (Entered: 03/19/2004)

03/19/2004

383 PROPOSED RECEIVED Order Granting motion to exceed page limitation [381-1] submitted by plaintiff (RF) (Entered: 03/19/2004)

03/19/2004

384 Reply Memorandum by plaintiff in support of motion for class certification [287-1] (RF) (Entered: 03/19/2004)

03/19/2004

385 Additional Affidavit of Victor Sanchez by Victor Sanchez (RF) (Entered: 03/22/2004)

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03/19/2004

386 Declaration of Ryan Edgley by defendant opposing motion to strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification [371-1] (RF) (Entered: 03/23/2004)

03/19/2004

405 RESERVED for Court's Use (RF) (Entered: 04/13/2004)

03/23/2004

387 MOTION by defendant to compel response to first interrogatory and request for production to Plaintiffs (RF) (Entered: 03/23/2004)

03/23/2004

388 Memorandum by defendant William Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co in support of motion to compel response to first interrogatory and request for production to Plaintiffs [387-1] (RF) (Entered: 03/23/2004)

03/23/2004

389 Affidavit of Mark D Watson by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Company in support of motion to compel response to first interrogatory and request for production to Plaintiffs [387-1] (RF) (Entered: 03/23/2004)

03/23/2004

390 Certificate of Service by defendant William Zirkle, defendant Gary Hudson, defendant William Wangler, defendant Zirkle Fruit Co of: Court Record 387-390 (RF) (Entered: 03/23/2004)

03/29/2004

391 NOTICE OF ATTORNEY APPEARANCE for Social Security Administration, USA; Atty Thomas M Elsberry and Stephanie Martz appearing (RF) (Entered: 03/30/2004)

03/29/2004

392 MOTION by SSA USA to reconsider and alter or amend order (RF) (Entered: 03/30/2004)

03/29/2004

393 Memorandum by SSA USA in support of motion to reconsider and alter or amend order [392-1] (RF) (Entered: 03/30/2004)

03/29/2004

394 Notice of Hearing by SSA USA setting motion to reconsider and alter or amend order [392-1] (w/o oral argument 5/17/04 ) (RF) (Entered: 03/30/2004)

04/02/2004

395 Plaintiffs' Response to the Matson Defendnats' Opposition to Plaintiffs' Motion for Class Certification [348-1] (RF) (Entered: 04/02/2004)

04/02/2004

396 Declaration of Andrew M Volk by plaintiffs in support of Response to Matson Defendants' Opposition to Plaintiffs' Motion for Class Certification [395-1] (RF) (Entered: 04/02/2004)

04/06/2004

Courtroom Deputy Modification (Utility Event) setting motion for class certification [287-1] with oral argument 11:00 4/12/04 Spokane, WA (PW) (Entered: 04/06/2004)

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04/06/2004

397 Notice by defendants Daryl Matson and Roderick Matson of association of attorney Marvin Lee Gray Jr, Hall Baetz, D Bruce Lamka, Darya V Swingle (RF) (Entered: 04/07/2004)

04/07/2004

398 Notice of hearing by plaintiffs setting motion to reconsider and alter or amend order [392-1] ;oral argument 11:00 4/26/04 Spokane, WA (RF) (Entered: 04/07/2004)

04/07/2004

399 Plaintiffs' Memorandum in Opposition to motion to reconsider and alter or amend order [392-1] (RF) (Entered: 04/07/2004)

04/07/2004

400 MOTION by plaintiffs to exceed page limitation (RF) (Entered: 04/07/2004)

04/07/2004

401 Notice of Hearing by plaintiffs setting motion to exceed page limitation [400-1] (w/o oral argument 4/26/04 ) (RF) (Entered: 04/07/2004)

04/07/2004

402 PROPOSED RECEIVED Order Granting Motion to Exceed Page Limitation re: motion to exceed page limitation [400-1] submitted by plaintiff (RF) (Entered: 04/07/2004)

04/07/2004

403 PROPOSED RECEIVED Order Denying Motion re: motion to reconsider and alter or amend order [392-1] submitted by plaintiff (RF) (Entered: 04/07/2004)

04/09/2004

FAXED/MAILED order/judgment (order on motions) to all counsel (CR) (Entered: 04/09/2004)

04/09/2004

406 ORDER by Chief Judge Fred Van Sickle granting motion to exceed page limitation [400-1] granting motion to exceed page limitation [3811] granting motion to file exhibits under seal [378-1] denying motion to expedite [369-1] granting motion to seal Affidavit [343-1] (cc: all counsel) (RF) (Entered: 04/13/2004)

04/12/2004

407 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle Motion hearing; order forthcoming (RF) (Entered: 04/13/2004)

04/14/2004

408 MOTION by USA SSA to exceed page limitation (RF) (Entered: 04/15/2004)

04/14/2004

409 Request by USA SSA for expedited hearing (RF) (Entered: 04/15/2004)

04/14/2004

410 PROPOSED RECEIVED Order Granting motion to exceed page limitation [408-1] submitted by USA SSA (RF) (Entered: 04/15/2004)

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04/14/2004

411 PROPOSED RECEIVED Order Granting motion for expedited hearing [409-1] submitted by USA SSA (RF) (Entered: 04/15/2004)

04/14/2004

412 Certificate of service by unknown USA of: Motion to Exceed Page Limit, Request for Expedited Hearing, Proposed Order Granting Request for Expedited Hearing, Proposed Order Granting Motion to Exceed Page Limit, Certificate of Service and Reply Brief (RF) (Entered: 04/15/2004)

04/14/2004

413 SSA's Reply by USA to Plaintiffs' Opposition to the SSA's Motion to Reconsider and Alter or Amend Order [399-1] (RF) (Entered: 04/15/2004)

04/15/2004

414 PRELIMINARY ORDER RE: CLASS CERTIFICATION by Chief Judge Fred Van Sickle Within 10 days of this order the parties are to file and serve short memoranda indicating they object to dividing the class proposed by the plaintiffs into three subclasses (cc: all counsel) (RF) (Entered: 04/15/2004)

04/15/2004

415 ORDER GRANTING REQUEST FOR EXPEDITED HEARING by Chief Judge Fred Van Sickle granting motion for expedited hearing [409-1] (cc: all counsel) (RF) (Entered: 04/15/2004)

04/16/2004

416 ORDER GRANTING MOTION TO EXCEED PAGE LIMIT by Chief Judge Fred Van Sickle granting motion to exceed page limitation [4081] (cc: all counsel) (RF) (Entered: 04/16/2004)

04/22/2004

417 MOTION by plaintiff to modify procedures for BICE investigatory files (RF) (Entered: 04/22/2004)

04/22/2004

418 Notice of Hearing by plaintiff setting motion to modify procedures for BICE investigatory files [417-1] (w/o oral argument 4/29/04 ) (RF) (Entered: 04/22/2004)

04/22/2004

419 MOTION by plaintiff to expedite (RF) (Entered: 04/22/2004)

04/22/2004

420 Notice of Hearing by plaintiff setting motion to expedite [419-1] (w/o oral argument 4/29/04 ) (RF) (Entered: 04/22/2004)

04/22/2004

421 PROPOSED RECEIVED Order Granting motion to expedite [419-1] submitted by plaintiffs (RF) (Entered: 04/22/2004)

04/22/2004

422 PROPOSED RECEIVED Order Granting Motion to Modify Procedures for BICE Investigatory Files [417-1] submitted plaintiffs (RF) (Entered: 04/22/2004)

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04/23/2004

423 Certified Statement of Grant Goss by defendant Selective Employment in opposition to class certification [287-1] (RF) (Entered: 04/26/2004)

04/23/2004

424 Defendant Selective Employment Supplemental Memorandum in Opposition to class certification [287-1] (RF) (Entered: 04/26/2004)

04/26/2004

425 MINUTES: Hearing Location: Spokane CR: Mark Snover before Chief Judge Fred Van Sickle Motion hearing held (RF) (Entered: 04/26/2004)

04/26/2004

Courtroom Deputy Modification (Utility Event) (PW) (Entered: 04/26/2004)

04/26/2004

426 Plaintiffs' Supplemental Memorandum in support of motion for class certification [287-1] (RF) (Entered: 04/27/2004)

04/26/2004

427 Additional Affidavit of Proposed Class Representative Agustin Aguirre (RF) (Entered: 04/27/2004)

04/27/2004

428 MOTION by plaintiffs to compel Department of Homeland Security's Compliance with Subpoena (RF) (Entered: 04/27/2004)

04/27/2004

429 Memorandum of Points and Authorities by plaintiffs in support of motion to compel Department of Homeland Security's Compliance with Subpoena [428-1] (RF) (Entered: 04/27/2004)

04/27/2004

430 Notice of Hearing by plaintiff setting motion to compel Department of Homeland Security's Compliance with Subpoena [428-1] (w/o oral argument 5/28/04 ) (RF) (Entered: 04/27/2004)

04/27/2004

431 PROPOSED RECEIVED Order Granting Motion to compel Department of Homeland Security's Compliance with Subpoena [428-1] submitted by plaintiff (RF) (Entered: 04/27/2004)

04/27/2004

432 Proof of service by plaintiff of: Court Record 428-432 (RF) (Entered: 04/27/2004)

04/27/2004

433 MOTION by plaintiff to compel Social Security Administration's Compliance with Subpoena (RF) (Entered: 04/27/2004)

04/27/2004

434 Notice of Hearing by plaintiff setting motion to compel Social Security Administration's Compliance with Subpoena [433-1] (w/o oral argument 5/28/04 ) (RF) (Entered: 04/27/2004)

04/27/2004

435 Memorandum of Points and Authorities by plaintiff in support of motion to compel Social Security Administration's Compliance with Subpoena [433-1] (RF) (Entered: 04/27/2004)

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04/27/2004

436 PROPOSED RECEIVED Order Granting Motion to compel Social Security Administration's Compliance with Subpoena [433-1] submitted by plaintiff (RF) (Entered: 04/27/2004)

04/27/2004

437 Proof of service by plaintiff of: Court Record 433-437 (RF) (Entered: 04/27/2004)

04/27/2004

438 Joint Settlement Status Conference Report filed by Daryl and Roderick Matson (RF) (Entered: 04/28/2004)

04/28/2004

439 ORDER DENYING RECONSIDERATION by Chief Judge Fred Van Sickle denying motion to reconsider and alter or amend order [392-1] However, within ten days of entry of this Order, the SSA may seek either modification of the existing protective order or entry of a separate protective order (cc: all counsel) (RF) (Entered: 04/28/2004)

04/29/2004

440 Declaration of Daryl Matson by defendant Daryl Matson in Objection to Addition of Class Members (RF) (Entered: 04/30/2004)

04/29/2004

441 Memorandum by defendant Daryl Matson and defendant Roderick Matson opposing the new class representatives and addressing the proposal to Certify a subclass of warehouse employees [287-1] (RF) Modified on 05/03/2004 (Entered: 04/30/2004)

04/29/2004

442 Certificate of service by defendant Daryl Matson, defendant Roderick Matson of: Court Record 440-442 (RF) (Entered: 04/30/2004)

04/29/2004

443 Memorandum by defendant Zirkle Fruit Co objecting to certification of single orchard subclass [287-1] (RF) (Entered: 04/30/2004)

04/29/2004

444 Certificate of service by defendant Zirkle Fruit Co of: court record 334444 (RF) (Entered: 04/30/2004)

04/29/2004

445 MOTION by defendants Daryl Matson and Roderick Matson for separate trial (RF) (Entered: 05/03/2004)

04/29/2004

446 Memorandum by defendants Daryl Matson and Roderick Matson in support of motion for separate trial [445-1] (RF) (Entered: 05/03/2004)

04/29/2004

447 Notice of Hearing by defendant Daryl Matson and defendant Roderick Matson setting motion for separate trial [445-1] (w/o oral argument 6/1/04 ) (RF) (Entered: 05/03/2004)

04/29/2004

448 PROPOSED RECEIVED Order Granting Motion for separate trial [4451] submitted by defendants Daryl Matson and Roderick Matson (RF) (Entered: 05/03/2004)

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04/30/2004

449 MOTION by defendant Selective Employment for separate trial (CR) (Entered: 05/04/2004)

04/30/2004

450 Memorandum by defendant Selective Employment in support of motion for separate trial [449-1] (CR) (Entered: 05/04/2004)

04/30/2004

451 Notice by defendant Selective Employment of hearing setting motion for separate trial [449-1] (w/o oral argument 6/1/04 ) (CR) (Entered: 05/04/2004)

04/30/2004

452 PROPOSED RECEIVED Order Granting motion for separate trial [4491] submitted by defendant Selective Employment (CR) (Entered: 05/04/2004)

05/04/2004

454 Affidavit of Service by defendants of: Subpoena Duces Tecum to Carolina Ramirez and Josefina Ochoa (RF) (Entered: 05/06/2004)

05/05/2004

453 Proof of service by defendant Zirkle Fruit Co of: Affidavit of Service for Subpoena Duces Tecum (RF) (Entered: 05/05/2004)

05/07/2004

455 AFFIDAVIT OF SERVICE of: Subpoena Duces Tecum executed on Bertha Aguirre (CR) (Entered: 05/10/2004)

05/10/2004

456 Response by plaintiff to Selective Employment Agency's motion for separate trial [449-1] (CR) (Entered: 05/10/2004)

05/11/2004

457 Response by Social Security Administration to motion to compel Social Security Administration's Compliance with Subpoena [433-1] (RF) (Entered: 05/12/2004)

05/11/2004

458 MOTION by USA to quash subpoena (RF) Modified on 05/12/2004 (Entered: 05/12/2004)

05/11/2004

459 Certificate of Service by USA of: Court Record 457-459 (RF) (Entered: 05/12/2004)

05/12/2004

460 Social Security Administration's MOTION by USA for protective order (RF) (Entered: 05/13/2004)

05/12/2004

461 Social Security Administration's Memorandum by USA in support of motion for protective order [460-1] (RF) (Entered: 05/13/2004)

05/12/2004

462 PROPOSED RECEIVED Protective Order re: motion for protective order [460-1] submitted by SSA (RF) (Entered: 05/13/2004)

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05/13/2004

463 Certificate of service by SSA of: SSA Motion for Protective Order, Memorandum in Support of Motion for Protective Order, Proposed Protective Order, Declaration of Jonathan Cantor and Patricia Stoos (RF) (Entered: 05/13/2004)

05/13/2004

464 Plaintiffs' Response to Defendants' Supplemental Memoranda re: Class Certification (RF) (Entered: 05/13/2004)

05/13/2004

465 Declaration of Steve Berman by plaintiffs in support of Plaintiffs' Response to Defendants' Supplemental Memoranda re: Class Certification [464-1] (RF) (Entered: 05/13/2004)

05/13/2004

466 Declaration of Ryan M Edgley by defendant Daryl Matson, and defendant Roderick Matson Authenticating Excerpts of Transcripts of Aguirre Depositions (RF) (Entered: 05/14/2004)

05/13/2004

467 Matson Defendants' Memorandum in Reply to Plaintiffs' Supplemental Memorandum in Support of Class Certification [464-1] (RF) (Entered: 05/14/2004)

05/14/2004

468 Declaration of Patricia Stoos by USA (RF) (Entered: 05/14/2004)

05/14/2004

469 Declaration of Jonathan R Cantor by USA (RF) (Entered: 05/14/2004)

05/14/2004

470 CORRECTION to Reply Memorandum by defendants' Matson in Support of class certification [287-1] (CR) (Entered: 05/17/2004)

05/17/2004

471 ORDER by Chief Judge Fred Van Sickle denying motion to strike the untimely Matson Defendants' Response to Plaintiffs' Motion for Class Certification [371-1] finding the motion to expedite [369-1] Denied as moot. (cc: all counsel) (RF) (Entered: 05/17/2004)

05/17/2004

472 ORDER by Chief Judge Fred Van Sickle granting motion to compel response to first interrogatory and request for production to Plaintiffs [387-1] (cc: all counsel) (RF) (Entered: 05/17/2004)

05/17/2004

473 ORDER by Chief Judge Fred Van Sickle granting motion to expedite [419-1], granting motion to modify procedures for BICE investigatory files [417-1] The Bureau of Immigration and Customs Enforcement is directd to release to counsel for Plaintiffs the materials contained in its investigatory files concerning Zirkle Fruit Company, Matson Fruit Company and Selective Employment Agency, Inc. (cc: all counsel) (RF) (Entered: 05/17/2004)

05/17/2004

474 Reply Memorandum by defendant Daryl Matson, defendant Roderick Matson in Support of motion for separate trials [445-1] (CR) (Entered: 05/18/2004)

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05/18/2004

475 ORDER by Chief Judge Fred Van Sickle granting motion to compel Department of Homeland Security's Compliance with Subpoena [428-1] Department of Homeland Security is directed to comply with Plaintiffs' subpoena of 3/12/04 (cc: all counsel) (RF) (Entered: 05/18/2004)

05/20/2004

476 Plaintiffs' MOTION by plaintiff for order to overrule Zirkle Defendants' Objections, Compel Production of Documents and for Attorney's Fees (RF) (Entered: 05/20/2004)

05/20/2004

477 Memorandum of Points and Authorities by plaintiff in support of Plaintiffs' motion for order to overrule Zirkle Defendants' Objections, Compel Production Documents and for Attorney's Fees [476-1] (RF) (Entered: 05/20/2004)

05/20/2004

478 Notice of Hearing by plaintiff setting motion for order to overrule Zirkle Defendants' Objections, Compel Production of Documents and for Attorney's Fees [476-1] (w/o oral argument 6/21/04 ) (RF) (Entered: 05/20/2004)

05/20/2004

479 PROPOSED RECEIVED Order re: motion for order to overrule Zirkle Defendants' Objections, Compel Production of Documents and for Attorney's Fees [476-1] submitted by plaintiff (RF) (Entered: 05/20/2004)

05/21/2004

480 MOTION by plaintiff for leave to conduct additional depositions (CP) (Entered: 05/21/2004)

05/21/2004

481 Memorandum of Points and Authorities by plaintiff in support of motion for leave to conduct 30 depositions [480-1] (CP) (Entered: 05/21/2004)

05/21/2004

482 Notice by plaintiff of hearing setting motion for leave to conduct additional depositions [480-1] (w/o oral argument 6/21/04 ) (CP) (Entered: 05/21/2004)

05/21/2004

483 PROPOSED RECEIVED Order re: motion for leave to conduct additional depositions [480-1] submitted by plaintiff (CP) (Entered: 05/21/2004)

05/21/2004

484 MOTION by plaintiff for ruling on motion on an expedited basis (CP) (Entered: 05/21/2004)

05/21/2004

485 Notice by plaintiff of hearing setting motion for ruling on motion on an expedited basis [484-1] (w/o oral argument 6/21/04 ) (CP) (Entered: 05/21/2004)

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05/21/2004

486 PROPOSED RECEIVED Order re: motion for ruling on motion on an expedited basis [484-1] submitted by plaintiff (CP) (Entered: 05/21/2004)

05/24/2004

487 Joint MOTION by unknown, defendant to defer ruling (expedited) (CR) (Entered: 05/24/2004)

05/24/2004

488 Stipulation by unknown, defendant (CR) (Entered: 05/24/2004)

05/24/2004

489 PROPOSED RECEIVED Order submitted by unknown, defendant (CR) (Entered: 05/24/2004)

05/24/2004

490 ORDER by Chief Judge Fred Van Sickle (granting motion for protective order [460-1]) (cc: all counsel) (CR) (Entered: 05/24/2004)

05/26/2004

491 ORDER by Chief Judge Fred Van Sickle granted in part [487-1] motion to defer ruling (expedited) Plaintiffs and SSA have entered into a stipulation that may resolve their dispute concerning release of SSA records; Court will defer ruling on Court Record 433 & 458 pending further proceedings (cc: all counsel) (RF) Modified on 05/26/2004 (Entered: 05/26/2004)

05/28/2004

492 MOTION by plaintiff to compel defendants William Zirkle and Roderick Matson to request social security matching data (CR) (Entered: 05/28/2004)

05/28/2004

493 Memorandum of points and authorities by plaintiff in support of motion to compel defendants William Zirkle and Roderick Matson to submit a request for matching to the social security's evs program [492-1] (CR) (Entered: 05/28/2004)

05/28/2004

494 Notice by plaintiff of hearing setting motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] (w/o oral argument 6/28/04 ) (CR) (Entered: 05/28/2004)

05/28/2004

495 PROPOSED RECEIVED Order Granting motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] submitted by plaintiff (CR) (Entered: 05/28/2004)

05/28/2004

496 MOTION by plaintiff to expedite (CR) (Entered: 05/28/2004)

05/28/2004

497 Notice by plaintiff of hearing setting motion to expedite [496-1] (w/o oral argument 6/28/04 ) (CR) (Entered: 05/28/2004)

05/28/2004

498 PROPOSED RECEIVED Order Granting motion to expedite [496-1] submitted by plaintiff (CR) (Entered: 05/28/2004)

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06/01/2004

499 Supplemental by plaintiff, defendant Joint Settlement Status Report on Behalf of Plaintiffs, Selective Employment Agency Inc, Roderick Matson and Daryl Matson [438-1] (CR) (Entered: 06/02/2004)

06/01/2004

500 Stipulated Briefing Schedule by plaintiff and defendant Matson re: plaintiffs' motion to compel defendants to submit to a request for matching to the social security administration's EVS Program [492-1] (CR) (Entered: 06/02/2004)

06/01/2004

501 PROPOSED RECEIVED Order re: briefing schedule between Roderick Matson and Plaintiffs re: plaintiffs' motion to compel defendants to submit to a request for matching to the social security administration's EVS program [500-1] submitted by plaintiff, defendant, plaintiff (CR) (Entered: 06/02/2004)

06/02/2004

FAXED/MAILED order/judgment to all counsel (CP) (Entered: 06/02/2004)

06/02/2004

502 ORDER RE: BRIEFING SCHEDULE BETWEEN RODERICK MATSON AND PLAINTIFFS RE: PLAINTIFFS' MOTION TO COMPEL DEFENDANTS TO SUBMIT TO A REQUEST FOR MATCHING TO THE SOCIAL SECURITY ADMINISTRATION'S EVS PROGRAM by Chief Judge Fred Van Sickle; Matson's Response to Motion to Compel ddl 6/9/04; Pltf's rply ddl 6/16/04, finding the motion for ruling on motion on an expedited basis [484-1] moot. (cc: all counsel) (CP) (Entered: 06/03/2004)

06/02/2004

503 PROPOSED RECEIVED Stipulated Order re: Zirkle Defendants' Response to Plaintiffs' motion to Compel and for Additional Depositions submitted by defendant (CR) (Entered: 06/03/2004)

06/02/2004

505 OPPOSITION by defendant Daryl Matson, defendant Roderick Matson to plaintiffs' motion to overrule Zirkel defendants' objections, compel production of documents and for attorney fees (CR) (Entered: 06/04/2004)

06/02/2004

506 Declaration of Ryan M Edgley by defendant Daryl Matson, defendant Roderick Matson re: response to request for production (CR) (Entered: 06/04/2004)

06/03/2004

507 Response by defendant Daryl Matson, defendant Roderick Matson to motion for leave to conduct 30 depositions [480-1] (CR) (Entered: 06/04/2004)

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06/04/2004

504 Stipulated ORDER by Chief Judge Fred Van Sickle: Regarding Zirkle Defendants' Response to Plaintiffs' Motions to Compel and for Additional Depositions (shall be filed and served by June 4, 2004) (cc: all counsel) (CR) (Entered: 06/04/2004)

06/04/2004

508 Memorandum by defendant in opposition to motion to Compel Production of Documents and for Attorney's Fees [476-1] (CR) (Entered: 06/07/2004)

06/04/2004

509 Memorandum Responding by defendant to motion for leave to conduct additional depositions [480-1] (CR) (Entered: 06/07/2004)

06/08/2004

510 Reply by plaintiff in Support of Motion for Leave to Conduct a Total of 30 Depositions (CR) (Entered: 06/09/2004)

06/08/2004

511 Reply Declaration of Andrew M Volk by plaintiff in SUpport of Motion for Leave to Conduct a Total of 30 Depositions (CR) (Entered: 06/09/2004)

06/09/2004

512 Reply by plaintiff in support of their motion to overrule Zirkle Defendants' Objections, Compel Production of Documents and for Attorney's Fees [476-1] (CR) (Entered: 06/09/2004)

06/09/2004

513 Memorandum by defendant Daryl Matson, defendant Roderick Matson in opposition to motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] (CR) (Entered: 06/10/2004)

06/09/2004

514 Declaration of Marvin L Gray Jr by defendant Daryl Matson, defendant Roderick Matson re motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] (CR) (Entered: 06/10/2004)

06/10/2004

517 Memorandum by defendant Zirkle Fruit Co, defendant William - Zirkle in opposition to motion to compel and request for social security matching data [492-1] (CR) (Entered: 06/16/2004)

06/15/2004

515 Reply by plaintiff in support of motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] (CR) (Entered: 06/15/2004)

06/15/2004

516 Reply Declaration of Andrew M Volk by plaintiff in support of motion to compel defendants William Zirkle and Roderick Matson to request social security matching data [492-1] (CR) (Entered: 06/15/2004)

06/16/2004

FAXED/MAILED Order to all counsel (CV) (Entered: 06/16/2004)

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06/16/2004

518 ORDER by Chief Judge Fred Van Sickle (granting motion to expedite [484-1]; granting motion for leave to conduct additional depositions [480-1]) (cc: all counsel) (CR) (Entered: 06/17/2004)

06/18/2004

519 MOTION by plaintiff for an order to Robert A Ellis to show cause why he should not be held in contempt (CR) (Entered: 06/21/2004)

06/18/2004

520 Memorandum by plaintiff in support of motion for an order to Robert A Ellis to show cause why he should not be held in contempt [519-1] (CR) (Entered: 06/21/2004)

06/18/2004

521 Notice by plaintiff of hearing setting motion for an order to Robert A Ellis to show cause why he should not be held in contempt [519-1] (w/o oral argument 6/28/04 ) (CR) (Entered: 06/21/2004)

06/18/2004

522 PROPOSED RECEIVED Order re: motion for an order to Robert A Ellis to show cause why he should not be held in contempt [519-1] submitted by plaintiff (CR) (Entered: 06/21/2004)

06/18/2004

523 Certificate of service by plaintiff of: #519-523 (CR) (Entered: 06/21/2004)

06/25/2004

524 Withdrawal by plaintiff of motion without prejudice (VR) (Entered: 06/25/2004)

06/25/2004

525 PROPOSED RECEIVED Order re: motion withdraw [524-1] submitted by plaintiff (VR) (Entered: 06/25/2004)

06/25/2004

526 Notice by plaintiff of hearing setting motion for an order to Robert A Ellis to show cause why he should not be held in contempt [519-1] (w/o oral argument 4:30 7/6/04 ) (VR) (Entered: 06/25/2004)

06/25/2004

527 CERTIFICATE of service by plaintiff (VR) (Entered: 06/25/2004)

06/28/2004

528 NOTICE OF INTERLOCATORY APPEAL TO 9CCA by USA (Commissioner of Social Security Administration) [439-1] (cc:9CCA, CR and all counsel) (RF) (Entered: 06/28/2004)

06/29/2004

529 RESERVED for Court's Use (RF) (Entered: 06/29/2004)

06/29/2004

530 RESERVED for Court's Use (RF) (Entered: 06/29/2004)

06/29/2004

531 RESERVED for Court's Use (RF) (Entered: 06/29/2004)

06/29/2004

532 Proof of service by plaintiffs of: Subpoena (RF) (Entered: 06/29/2004)

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06/29/2004

533 ORDER SEALING RECORD by Chief Judge Fred Van Sickle Sealing Mr. Foster's letter of 1/14/04 and Mr. Edgley's letter of 1/15/04 (cc: all counsel) (RF) (Entered: 06/29/2004)

06/30/2004

534 Copy 9CCA Docket Fee Payment Notification form. Original Fee Payment form, case information sheet and copy of docket entries forwarded to 9CCA. (RF) (Entered: 06/30/2004)

07/01/2004

535 MOTION by plaintiff to enter proposed Federal R. Civil P. 29 Stipulation Deferring Discovery Regarding Matson Fruit Company Orchard Workers (RF) (Entered: 07/01/2004)

07/01/2004

536 Notice of Hearing by plaintiff setting motion to enter proposed Federal R. Civil P. 29 Stipulation Deferring Discovery Regarding Matson Fruit Company Orchard Workers [535-1] (w/o oral argument 8/2/04 ) (RF) (Entered: 07/01/2004)

07/01/2004

537 PROPOSED RECEIVED Stipulation and Approval to Extend Time for Discovery re: motion to enter proposed Federal R. Civil P. 29 Stipulation Deferring Discovery Regarding Matson Fruit Company Orchard Workers [535-1] submitted by plaintiff (RF) (Entered: 07/01/2004)

07/02/2004

538 MOTION by plaintiff to extend the discovery cut off date so as to permit compliance by the Department of Homeland Security with their Additional Subpoenas (RF) (Entered: 07/02/2004)

07/02/2004

539 Memorandum of points and authorities by plaintiff in support of motion to extend the discovery cut off date so as to permit compliance by the Department of Homeland Security with their Additional Subpoenas [538-1] (RF) (Entered: 07/02/2004)

07/02/2004

540 Notice of Hearing by plaintiff setting motion to extend the discovery cut off date so as to permit compliance by the Department of Homeland Security with their Additional Subpoenas [538-1] (w/o oral argument 8/3/04 ) (RF) (Entered: 07/02/2004)

07/02/2004

541 PROPOSED RECEIVED Order re: motion to extend the discovery cut off date so as to permit compliance by the Department of Homeland Security with their Additional Subpoenas [538-1] submitted by plaintiff (RF) (Entered: 07/02/2004)

07/02/2004

542 Certificate of service by plaintiff of: Court Record 538-542 (RF) (Entered: 07/02/2004)

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07/06/2004

543 ORDER by Chief Judge Fred Van Sickle denying motion for an order to Robert A Ellis to show cause why he should not be held in contempt [519-1], denying motion to expedite [496-1] (cc: all counsel) (RF) (Entered: 07/06/2004)

07/07/2004

544 STIPULATION AND APPROVAL TO EXTEND TIME FOR DISCOVERY by Chief Judge Fred Van Sickle (cc: all counsel) (RF) Modified on 07/29/2004 (Entered: 07/07/2004)

07/12/2004

545 Notification by Circuit Court of Appellate Docket Number [528-1] 9CCA Number: 04-35565 Date appeal filed: 6/28/04 (RF) (Entered: 07/12/2004)

07/13/2004

546 ORDER by Chief Judge Fred Van Sickle granted in part [492-1] motion to compel defendants William Zirkle and Roderick Matson to request social security matching data (cc: all counsel) (RF) (Entered: 07/13/2004)

07/13/2004

547 ORDER by Chief Judge Fred Van Sickle granted in part and denied in part [287-1] motion for class certification Two classes are certified: Subclass A consists of persons who worked in Zirkle Fruit Company's warehouse from 1/5/99 to present; Subclass B consists of persons who worked in Zirkle Fruit Company's orchard from 11/5/99 to the present (cc: all counsel) (RF) (Entered: 07/13/2004)

07/14/2004

548 MOTION by plaintiff to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas (RF) (Entered: 07/14/2004)

07/14/2004

549 Memorandum by plaintiff in support of motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] (RF) (Entered: 07/14/2004)

07/14/2004

550 Notice of Hearing by plaintiff setting motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] (w/o oral argument 8/16/04 ) (RF) (Entered: 07/14/2004)

07/14/2004

551 Certificate of service by plaintiff of: Court Record 548-552 (RF) (Entered: 07/14/2004)

07/14/2004

552 PROPOSED RECEIVED Order Granting Motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] submitted by plaintiff (RF) (Entered: 07/14/2004)

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07/15/2004

559 Memorandum by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co in opposition to motion to extend discovery cutoff (VR) (Entered: 07/19/2004)

07/15/2004

560 Affidavit of Ryan M. Edgley by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co re: memorandum [559-1] (VR) (Entered: 07/19/2004)

07/15/2004

561 CERTIFICATE of service by defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler, defendant Zirkle Fruit Co (VR) (Entered: 07/19/2004)

07/16/2004

553 Emergency MOTION by plaintiff to vacate the remainder of the schedule (CR) (Entered: 07/19/2004)

07/16/2004

554 Memorandum by plaintiff in support of emergency motion to vacate the remainder of the schedule [553-1] (CR) (Entered: 07/19/2004)

07/16/2004

555 PROPOSED RECEIVED Order Granting emergency motion to vacate the remainder of the schedule [553-1] submitted by plaintiff (CR) (Entered: 07/19/2004)

07/16/2004

556 MOTION by plaintiff to expedite (CR) (Entered: 07/19/2004)

07/16/2004

557 Notice by plaintiff of hearing setting motion to expedite [556-1] (w/o oral argument 7/19/04 ) (CR) (Entered: 07/19/2004)

07/16/2004

558 PROPOSED RECEIVED Order Granting motion to expedite [556-1] submitted by plaintiff (CR) (Entered: 07/19/2004)

07/19/2004

562 ORDER by Chief Judge Fred Van Sickle granting motion to extend the discovery cut off date so as to permit by the Department of Homeland Security with their Subpoenas [538-1] Discovery Period is Extended; (cc: all counsel) (VR) Modified on 07/29/2004 (Entered: 07/19/2004)

07/19/2004

FAXED/MAILED order re: plaintiffs' motion to discovery all counsel (VR) (Entered: 07/19/2004)

07/19/2004

563 Objections by defendant Selective Employment to motion to expedite [556-1] (RF) (Entered: 07/21/2004)

07/19/2004

564 Certified Statement of Brendan v. Monahan by defendant Selective Employment in support of Selective Employment's Objection to Motion to Expedite [563-1] (RF) (Entered: 07/21/2004)

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07/19/2004

565 Certificate of Transmittal by defendant Selective Employment of: Objection to Motion to Expedite and Certified Statement (RF) (Entered: 07/21/2004)

07/20/2004

566 Reply by plaintiffs in support of motion to expedite [556-1] (RF) (Entered: 07/21/2004)

07/21/2004

567 MOTION by plaintiff to revise class certification order (CR) (Entered: 07/22/2004)

07/21/2004

568 Memorandum by plaintiff in support of motion to revise class certification order [567-1] (CR) (Entered: 07/22/2004)

07/21/2004

569 Notice by plaintiff of hearing setting motion to revise class certification order [567-1] (w/o oral argument 8/19/04 ) (CR) (Entered: 07/22/2004)

07/21/2004

570 PROPOSED RECEIVED Order Granting motion to revise class certification order [567-1] submitted by plaintiff (CR) (Entered: 07/22/2004)

07/21/2004

571 Objection and MOTION by defendant to modify a ruling of the discovery master (CR) (Entered: 07/23/2004)

07/21/2004

572 Memorandum by defendant in support of Objection to Discovery Master Order [571-1] (CR) (Entered: 07/23/2004)

07/21/2004

573 Declaration of Ryan M Edgley by defendant Supporting Objection to Discovery Master's Order [571-1] (CR) (Entered: 07/23/2004)

07/21/2004

574 Notice by defendant of hearing setting motion to modify a ruling of the discovery master [571-1] (w/o oral argument 8/24/04 ) (CR) (Entered: 07/23/2004)

07/21/2004

575 PROPOSED RECEIVED Order re: objections to discovery master's order [571-1] submitted by defendant (CR) (Entered: 07/23/2004)

07/21/2004

576 Certificate of service by defendant of: # 571-576 (CR) (Entered: 07/23/2004)

07/22/2004

577 MOTION by Zirkle defendants' for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas and for immediate hearing pursuant to LR 7.1(h)(6) (CR) (Entered: 07/23/2004)

07/22/2004

578 Memorandum by defendant in support of motion for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1], motion for immediate hearing pursuant to LR 7.1(h)(6) [577-2] (CR) (Entered: 07/23/2004)

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07/22/2004

579 Notice by defendant of hearing setting motion for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1] (w/o oral argument 7/28/04 ) (CR) (Entered: 07/23/2004)

07/22/2004

580 PROPOSED RECEIVED Order Granting reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1] submitted by defendant (CR) (Entered: 07/23/2004)

07/22/2004

581 Notice by defendant of hearing setting motion for immediate hearing pursuant to LR 7.1(h)(6) [577-2] (w/o oral argument 7/26/04 ) (CR) (Entered: 07/23/2004)

07/22/2004

582 PROPOSED RECEIVED Order Granting immediate hearing pursuant to LR 7.1(h)(6) [577-2] on motion for reconsideration submitted by defendant (CR) (Entered: 07/23/2004)

07/23/2004

583 MOTION by plaintiff to approve notice plan (CR) (Entered: 07/23/2004)

07/23/2004

584 Memorandum by plaintiff in support of motion to approve notice plan [583-1] (CR) (Entered: 07/23/2004)

07/23/2004

585 Notice by plaintiff of hearing setting motion to approve notice plan [583-1] (w/o oral argument 8/23/04 ) (CR) (Entered: 07/23/2004)

07/23/2004

586 PROPOSED RECEIVED Order Approving plan for notice of class certification [583-1] submitted by plaintiff (CR) (Entered: 07/23/2004)

07/23/2004

587 ORDER by Chief Judge Fred Van Sickle granting in part [553-1] motion to vacate the remainder of the schedule Telephonic hearing set 1:00 8/13/04 with Plaintiff to initiate the call; discovery ddl: 8/23/04; dispositive motion ddl: 8/30/04; defendant shall have until 8/9/04 to file a response to plaintiff's motion; reply due 8/11/04 (cc: all counsel) (RF) (Entered: 07/23/2004)

07/23/2004

588 Zirkle Defendants' Objection to Plaintiffs' motion to expedite [556-1] (RF) (Entered: 07/26/2004)

07/23/2004

589 Affidavit of Mark D Watson by Zirkle Fruit Co in support of objection [588-1] (RF) (Entered: 07/26/2004)

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07/23/2004

590 AMENDED Certificate of Service by defendant Zirkle Fruit Co of: Notice of Hearing on Motion for Expedited Hearing, Notice of Hearing on Motion for Reconsideration; Zirkle Defendant's Motion for Recon; Memorandum in Support of Motion for Recon.; Proposed Order Granting Immediate Hearing; Proposed Order Granting Reconsideration and Denying Plaintiffs' Motion to Extend Discovery Cutoff (RF) (Entered: 07/26/2004)

07/26/2004

591 MOTION by plaintiff for an order to William Zirkle to show cause why he should not be held in contempt (CR) (Entered: 07/26/2004)

07/26/2004

592 Memorandum by plaintiff in support of motion for an order to William Zirkle to show cause why he should not be held in contempt [591-1] (CR) (Entered: 07/26/2004)

07/26/2004

593 Notice by plaintiff of hearing setting motion for an order to William Zirkle to show cause why he should not be held in contempt [591-1] (w/ o oral argument 8/24/04 ) (CR) (Entered: 07/26/2004)

07/26/2004

594 PROPOSED RECEIVED Order re: motion for an order to William Zirkle to show cause why he should not be held in contempt [591-1] submitted by plaintiff (CR) (Entered: 07/26/2004)

07/26/2004

595 Certificate of service by plaintiff of: # 591-595 (CR) (Entered: 07/26/2004)

07/26/2004

596 Memorandum by plaintiff in opposition to the Zirkle Defendants' Motion for an Expedited Hearing and Request for Additional Time to Respond to the Zirkle Defendants' Motion for Reconsideration (CR) (Entered: 07/26/2004)

07/26/2004

597 PROPOSED RECEIVED Order Denying the Zirkle Defendants' Motion for Expedited Hearing and Granting Plaintiffs' Request for Additional Time to Respond to the Zirkle Defendants' Motion for Reconsideration submitted by plaintiff (CR) (Entered: 07/26/2004)

07/26/2004

599 Notice by Zirkle defendants' of hearing setting motion for reconsideration (assuming motion for expedited hearing is granted) [577-1] (w/o oral argument 8/27/04 ) (CR) (Entered: 07/28/2004)

07/26/2004

600 Request/MOTION by Zirkle defendants' for additional trial time (CR) (Entered: 07/28/2004)

07/26/2004

601 Affidavit of Ryan M Edgley by Zirkle defendants' in support of motion for additional trial time [600-1] (CR) (Entered: 07/28/2004)

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07/26/2004

602 Notice by defendant of hearing setting motion for additional trial time [600-1] (w/o oral argument 8/27/04 ) (CR) (Entered: 07/28/2004)

07/26/2004

603 Certificate of service by Zirkle defendants' of: # 599-603 (CR) (Entered: 07/28/2004)

07/27/2004

598 CORRECTED Notice of Hearing by plaintiff setting motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] (w/o oral argument 8/27/04 ) (RF) (Entered: 07/27/2004)

07/28/2004

604 PROPOSED RECEIVED Order Granting Motion to revise class certification order [567-1] submitted by plaintiffs (RF) (Entered: 07/28/2004)

07/28/2004

605 Praecipe by plaintiffs (RF) (Entered: 07/28/2004)

07/28/2004

606 TRANSCRIPT DESIGNATION AND ORDER. 9CCA: 04-35565 Date appl filed: 6/28/04 NO TRANSCRIPTS WERE DESIGNATED by USA cc:9CCA; CJA 24 sent: n; cc: Mia Bohn, Mark Snover, Susan Haney, Crystal Glass Hicks (RF) (Entered: 07/28/2004)

07/28/2004

607 Joint MOTION to enter stipulation to withdraw subpoenas on social security administration (RF) (Entered: 07/29/2004)

07/28/2004

608 Stipulation to Withdraw Subpoenas on Social Security Administration (RF) (Entered: 07/29/2004)

07/28/2004

609 PROPOSED RECEIVED Order re: stipulation [608-1], motion to enter stipulation to withdraw subpoenas on social security administration [607-1] submitted by plaintiff, unknown (RF) (Entered: 07/29/2004)

08/02/2004

610 PROPOSED RECEIVED Order Granting Motion to Compel Production of I-9 Forms and Awarding Plaintiffs' Attorney's Fees submitted by plaintiffs (RF) (Entered: 08/02/2004)

08/02/2004

611 Memorandum by defendant Zirkle Fruit Co, defendant William - Zirkle, defendant Gary Hudson, defendant William - Wangler in opposition to Plaintiffs' Motion to Revise Class Certification Order (RF) (Entered: 08/03/2004)

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08/03/2004

612 ORDER by Chief Judge Fred Van Sickle granting Joint motion to enter stipulation to withdraw subpoenas on social security administration [607-1] finding the motion to compel Social Security Administration's Compliance with Subpoena [433-1] denied as moot; finding the motion to quash subpoena [458-1] denied as moot; vacating [439-1] order finding the motion for protective order [460-1] vacating as moot [490-1] order vacating [491-1] order (cc: all counsel) (RF) (Entered: 08/03/2004)

08/03/2004

613 Declaration of Andrew M Volk by plaintiffs in opposition to the Zirkle Defendants' Motion for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1] (RF) (Entered: 08/03/2004)

08/03/2004

614 Memorandum by plaintiffs in opposition to motion for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1] (RF) (Entered: 08/03/2004)

08/03/2004

615 ORDER by Chief Judge Fred Van Sickle granted in part and denied in part [553-1] motion to vacate the remainder of schedule denying motion to expedite [556-1] denying as moot motion for reconsideration regarding Court's order extending discovery to allow plaintiffs to obtain DHS compliance with subpoenas [577-1], denying as moot motion for immediate hearing pursuant to LR 7.1(h)(6) [577-2] (cc: all counsel) (RF) (Entered: 08/03/2004)

08/04/2004

616 ORDER by Chief Judge Fred Van Sickle granting motion to revise class certification order [567-1] The Plaintiff's counsel of record shall serve as class counsel (cc: all counsel) (RF) (Entered: 08/04/2004)

08/04/2004

620 Response Memorandum by Zirkle defendant's to motion to approve notice plan [583-1] (CR) (Entered: 08/06/2004)

08/04/2004

621 Affidavit of Mark D Watson by Zirkle defendant's in response to plaintiffs' motion to approve notice plan (CR) (Entered: 08/06/2004)

08/04/2004

622 Notice by Zirkle defendant's of hearing setting on response to motion to approve notice plan [583-1] (w/o oral 8/23/04 @ 4:00) (CR) (Entered: 08/06/2004)

08/05/2004

617 Plaintiffs' Response to the Defendnats' Objection and motion to modify a ruling of the discovery master [571-1] (RF) (Entered: 08/05/2004)

08/05/2004

618 Plaintiffs' Response to Defendants' motion for additional trial time [6001] (RF) (Entered: 08/05/2004)

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08/05/2004

619 PROPOSED RECEIVED Order Granting Motion to Compel the production of documents [548-1] submitted by plaintiff (RF) (Entered: 08/05/2004)

08/05/2004

623 Certificate of service by Zirkle defendants of: # 620-623 (CR) (Entered: 08/06/2004)

08/06/2004

Courtroom Deputy Modification (Utility Event) , ;tele hrg set 3:00 8/13/04 Spokane, WA (PW) (Entered: 08/06/2004)

08/06/2004

625 Declaration of Ryan M Edgley by defendant opposing plaintiffs' motion for an order to William Zirkle to show cause why he should not be held in contempt [591-1] (RF) (Entered: 08/09/2004)

08/09/2004

624 Mandate from 9CCA. 9CCA: 04-35565 Commissioner's motion for voluntary dismissal of appeal; dismissing the appeal [528-1] (cc: all counsel) (RF) (Entered: 08/09/2004)

08/09/2004

632 Objections by defendant Selective Employment to plaintiffs' motion to vacate scheduling order [553-1] (CR) (Entered: 08/11/2004)

08/09/2004

633 Memorandum by Zirkle defendants' in opposition to motion to vacate remainder of case schedule (CR) Modified on 08/11/2004 (Entered: 08/11/2004)

08/09/2004

634 Affidavit of Mark D Watson by Zirkle defendants' in opposition to motion to vacate remainder of scheduling order (CR) (Entered: 08/11/2004)

08/09/2004

635 Certificate of service by Zirkle defendants of: # 633-635 (CR) (Entered: 08/11/2004)

08/10/2004

626 PROPOSED RECEIVED Stipulation and Order for Dismssal with Prejudice as to Defendants Daryl Matson, Roderick Matson and Matson Fruit Company submitted by defendant (RF) (Entered: 08/10/2004)

08/10/2004

627 MOTION by USA to quash subpoenas / motion for entry of a protective order (RF) (Entered: 08/11/2004)

08/10/2004

628 Memorandum by USA in support of motion to quash subpoenas / motion for entry of a protective order [627-1] (RF) (Entered: 08/11/2004)

08/10/2004

629 PROPOSED RECEIVED Order to Quash re: motion to quash subpoenas / motion for entry of a protective order [627-1] submitted by USA (RF) (Entered: 08/11/2004)

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08/10/2004

630 PROPOSED RECEIVED Protective Order submitted by unknown USA (RF) (Entered: 08/11/2004)

08/10/2004

631 Certificate of service by USA of: Court Record 627-631 (RF) (Entered: 08/11/2004)

08/10/2004

636 Proposed Agenda for Aug 13 Conference by plaintiff (CR) (Entered: 08/11/2004)

08/11/2004

637 ORDER by Chief Judge Fred Van Sickle denying motion for an order to William Zirkle to show cause why he should not be held in contempt [591-1] (cc: all counsel) (RF) (Entered: 08/11/2004)

08/11/2004

638 Notice of Hearing by USA setting motion to quash subpoenas / motion for entry of a protective order [627-1] (w/o oral argument 8/27/04 ) (RF) (Entered: 08/11/2004)

08/11/2004

639 Plaintiffs' Reply in support of Motion to Vacate Remainder of Schedule (RF) (Entered: 08/11/2004)

08/12/2004

640 Reply by plaintiff in support of motion to approve notice plan [583-1] (CR) (Entered: 08/12/2004)

08/12/2004

641 Supplemental Memorandum in Support of motion to quash subpoenas / motion for entry of a protective order [627-1] (RF) (Entered: 08/12/2004)

08/13/2004

642 Stipulation and ORDER for Dismissal by Chief Judge Fred Van Sickle : terminating party Roderick Matson, party Daryl Matson; are dismissed with prejudice and without costs or attorneys' fees for any party COB: 204-93 (cc: all counsel) (CR) (Entered: 08/13/2004)

08/13/2004

643 MINUTES: STATUS CONF HELD Hearing Location: Spokane CR/ ER: Mia Bohn before Chief Judge Fred Van Sickle (CR) (Entered: 08/13/2004)

08/17/2004

644 Sworn Statement of Lavonne Josey by defendant (RF) (Entered: 08/19/2004)

08/17/2004

645 Affidavit of Mark D Watson by Zirkle Fruit Co in supplement to Plaintiffs' Motion to Approve Notice Plan (RF) (Entered: 08/19/2004)

08/17/2004

646 Supplemental Memorandum by Zirkle defendants in response to Plaintiff's motion to approve notice plan [620-1] (RF) (Entered: 08/19/2004)

08/17/2004

647 Certificate of service by defendant of: Court Record 644-647 (RF) (Entered: 08/19/2004)

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08/20/2004

648 Plaintiffs' Reply in support of their motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] (RF) (Entered: 08/20/2004)

08/23/2004

649 ORDER RE: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF I-9 FORMS AND AWARDING PLAINTIFFS' ATTORNEYS' FEES by Discovery Master Harold Clarke granted in part and denied in part [476-1] motion for order to overrule Zirkle Defendants' Objections, Compel Production of Documents and for Attorney's Fees (cc: all counsel) (RF) (Entered: 08/23/2004)

08/23/2004

650 ORDER by Chief Judge Fred Van Sickle granted in part and denied in part [571-1] and [476-1] motion to modify a ruling of the discovery master; granting motion to vacate the remainder of the schedule [553-1] telephonic status conf set 4:45 8/31/04 (cc: all counsel) (RF) (Entered: 08/23/2004)

08/27/2004

Courtroom Deputy Modification (Utility Event) , , ; Telephone status conf re set 1:30 9/20/04 Spokane, WA (PW) (Entered: 08/27/2004)

08/29/2004

651 Copy 9CCA certificate of record - Original forwarded to 9CCA 9CCA: 04-35565 (RF) (Entered: 08/30/2004)

09/02/2004

652 Plaintiffs' Supplemental Submission in support of motion to approve notice plan [583-1] (RF) (Entered: 09/03/2004)

09/02/2004

653 PROPOSED RECEIVED Order Approving re: motion to approve notice plan [583-1] submitted by plaintiff (RF) (Entered: 09/03/2004)

09/09/2004

654 PROPOSED Schedule by plaintiff for dissemination of notice of class certification (VR) (Entered: 09/09/2004)

09/15/2004

655 ORDER by Chief Judge Fred Van Sickle granting motion to approve notice plan [583-1] as modified by Plaintiffs' Supplemental Submission in Support of Motion to Approve Notice Plan and Proposed Schedule of Dissemination of Notice of Class Certification (cc: all counsel) (RF) (Entered: 09/15/2004)

09/15/2004

656 ORDER by Chief Judge Fred Van Sickle granting motion to compel the Department of Homeland Security to comply with Plaintiffs' most recent Subpoenas [548-1] denying motion to quash subpoenas / motion for entry of a protective order [627-1] Plaintiffs' motion to expedite [556-1] is denied; Department's request for protective order is GRANTED; Parties are to present a stipulated protective order for the Court's review; Department's request for reimbursement is denied (cc: all counsel) (RF) (Entered: 09/15/2004)

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09/17/2004

657 PROPOSED RECEIVED Order Approving Plaintiff's Plan for Notice of Class Certification submitted by plaintiff (RF) (Entered: 09/17/2004)

09/20/2004

658 ORDER APPROVING PLAINTIFFS' PLAN FOR NOTICE OF CLASS CERTIFICATION by Chief Judge Fred Van Sickle (cc: all counsel) (RF) (Entered: 09/20/2004)

09/20/2004

659 MINUTES: Hearing Location: Spokane No Court Reporter before Chief Judge Fred Van Sickle (RF) (Entered: 09/21/2004)

10/26/2004

660 SCHEDULING CONFERENCE ORDER: Pretrial Conference set for 2/22/2005 08:30 AM in Yakima before Chief Judge Fred Van Sickle. Jury Trial set for 3/14/2005 09:00 AM in Yakima before Chief Judge Fred Van Sickle. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 10/26/2004)

10/26/2004

661 MOTION for Protective Order by USA. (Attachments: # 1 Text of Proposed Order for Protective Order)(DeRusha, Pamela) (Entered: 10/26/2004)

10/26/2004

662 Request for Expedited Hrg. NOTICE of Hearing on Motion re 661 MOTION for Protective Order: (DeRusha, Pamela) (Entered: 10/26/2004)

10/26/2004

663 MOTION to Remedy the Zirkle Defendants' Evident Opt-Out Compaign by all plaintiffs. (Attachments: # 1 Text of Proposed Order) (Volk, Andrew) (Entered: 10/26/2004)

10/26/2004

664 MEMORANDUM re 663 MOTION to Remedy the Zirkle Defendants'
Evident Opt-Out Compaign In Support of Motion to Remedy the Zirkle Defendants' Evident Opt-Out Campaign by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 10/26/2004)

10/26/2004

665 DECLARATION by Andrew M. Volk re 663 MOTION to Remedy the Zirkle Defendants' Evident Opt-Out Compaign by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3 - Part 1# 4 Exhibit 3 - Part 2# 5 Exhibit 3 - Part 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9)(Volk, Andrew) (Entered: 10/26/2004)

10/26/2004

666 NOTICE of Hearing on Motion re 663 MOTION to Remedy the Zirkle Defendants' Evident Opt-Out Compaign: (Volk, Andrew) (Entered: 10/26/2004)

10/28/2004

667 NOTICE by USA Notice of Substitution (Ellis, Robert) (Entered: 10/28/2004)

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10/29/2004

668 MOTION for Summary Judgment by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 10/29/2004)

10/29/2004

669 NOTICE of Hearing on Motion Oral Argument Requested re 668 MOTION for Summary Judgment: Motion Hearing set for 12/10/2004 at 09:00 AM Yakima for 668, before Chief Judge Fred Van Sickle (Monahan, Brendan) (Entered: 10/29/2004)

10/29/2004

670 STATEMENT OF Undisputed Material FACTS re 668 MOTION for Summary Judgment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 10/29/2004)

10/29/2004

671 DECLARATION by Grant Goss in Support re 668 MOTION for Summary Judgment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 10/29/2004)

10/29/2004

672 MEMORANDUM in Support re 668 MOTION for Summary Judgment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 10/29/2004)

10/29/2004

676 MOTION for Summary Judgment Dismissal by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

677 MOTION for Summary Judgment Dismissal against William Zirkle, William Wangler and Gary Hudson by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

678 MEMORANDUM in Support of 677 MOTION for Summary Judgment Dismissal of Claims Against William Zirkle, William Wangler and Gary Hudson filed by Zirkle Defendants (Attachments: # 1 Pages 11 20)(RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

679 MEMORANDUM in Support re 676 MOTION for Summary Judgment Dismissal filed by Zirkle Defendants. (Attachments: # 1 Pages 11-21) (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

680 SUPPLEMENTAL MEMORANDUM in Support of 677 MOTION for Summary Judgment Dismissal of Claims against William Zirkle filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

681 STATEMENT OF MATERIAL FACTS re 676 MOTION for Summary Judgment filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

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10/29/2004

682 AFFIDAVIT by Gary Hudson in Support in support of 677 MOTION
for Summary Judgment filed by Zirkle Fruit Co, William Zirkle, Gary Hudson and William Wangler. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

683 AFFIDAVIT by William Wangler in Support of 677 MOTION for Summary Judgment filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

684 AFFIDAVIT by Toni Jenft in Support of 677 MOTION for Summary
Judgment by Defendants William Zirkle, William Wangler and Gary Hudson filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

685 AFFIDAVIT by William Zirkle in Support of 677 MOTION for Summary Judgment filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

686 NOTICE of Hearing on Motion Oral Argument Requested re 676 MOTION for Summary Judgment, 677 MOTION for Summary Judgment: Motion Hearing set for 12/10/2004 at 09:00 AM Telephonic Argument for 676 and for 677, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

687 CERTIFICATE OF SERVICE by Zirkle Defendants re 684 Affidavit in Support of Motion, 678 Memorandum in Support of Motion, 679 Memorandum in Support of Motion, 680 Memorandum in Support of Motion, 681 Statement of Facts, 685 Affidavit in Support of Motion, 686 Notice of Hearing on Motion,, 676 MOTION for Summary Judgment, 677 MOTION for Summary Judgment, 682 Affidavit in Support of Motion, 683 Affidavit in Support of Motion (RF, Case Administrator) (Entered: 11/02/2004)

10/29/2004

688 Reserved for Court Use. (RF, Case Administrator) (Entered: 11/02/2004)

11/01/2004

673 MOTION for Extension of Time to File by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1 Notice of Hearing# 2 Andrew M. Volk Declaration# 3 Proposed Order to Extend Time)(Volk, Andrew) (Entered: 11/01/2004)

11/02/2004

674 NOTICE of Hearing on Motion re 673 MOTION for Extension of Time to File: Motion Hearing set for 11/12/2004 at 04:30 PM Without Oral Argument for 673, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 11/02/2004)

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11/02/2004

675 DECLARATION by Andrew M. Volk in Support re 673 MOTION for Extension of Time to File filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/02/2004)

11/03/2004

689 William Zirkle's STATEMENT OF MATERIAL FACTS supporting 677 MOTION for Summary Judgment filed by Zirkle Defendants. (Attachments: # 1 Pages 21-41# 2 Pages 42 - 62# 3 Pages 63-76)(RF, Case Administrator) (Entered: 11/04/2004)

11/03/2004

690 INDIVIDUAL DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS re 677 MOTION for Summary Judgment filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/05/2004)

11/03/2004

691 Zirkle Defendants' RESPONSE to 661 MOTION for Protective Order filed by Gary Hudson, William Wangler, William Zirkle and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 11/05/2004)

11/03/2004

692 Certificate OF Service by Zirkle Defendants re 689 Statement of Facts, 690 Statement of Facts, 677 MOTION for Summary Judgment (RF, Case Administrator) (Entered: 11/05/2004)

11/08/2004

693 NOTICE OF WITHDRAWAL by James A. Smith, Jr. for Matson Fruit Company and Zirkle Fruit Co (RF, Case Administrator) (Entered: 11/08/2004)

11/09/2004

694 ORDER granting 673 Motion to Extend. Responses due 11/29/04.
Replies due 12/13/04. Oral argument scheduled for 12/10/04 is continued to 1/27/05 at 8:30 Yakima, WA. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 11/09/2004)

11/09/2004

695 MEMORANDUM in Opposition re 663 MOTION to Remedy the
Zirkle Defendants' Evident Opt-Out Compaign filed by Zirkle Defendants. (RF, Case Administrator) Modified on 11/15/2004 (RF, Case Administrator) to edit date document filed. (Entered: 11/12/2004)

11/09/2004

696 AFFIDAVIT by Gary Hudson in Opposition re 663 MOTION to Remedy the Zirkle Defendants' Evident Opt-Out Compaign filed by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/12/2004)

11/10/2004

697 MOTION for Reconsideration and Request for Expedited Hearing re 694 Order on Motion for Extension of Time to File by Zirkle Defendants. (RF, Case Administrator) (Entered: 11/12/2004)

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11/10/2004

698 NOTICE of Hearing on Motion re 697 MOTION to Expedite MOTION for Reconsideration re 694 Order on Motion for Extension of Time to File: Motion Hearing set for 11/17/2004 at 04:30 PM Without Oral Argument for 697, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 11/12/2004)

11/17/2004

699 REPLY MEMORANDUM re 663 MOTION to Remedy the Zirkle Defendants' Evident Opt-Out Compaign filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/17/2004)

11/18/2004

700 REPLY MEMORANDUM re 661 MOTION for Protective Order filed by USA filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/18/2004)

11/29/2004

701 PROTECTIVE ORDER. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 11/29/2004)

11/29/2004

702 MOTION for Leave to File Excess Pages in Opposition to Defendants' Motions for Summary Judgment by all plaintiffs. (Attachments: # 1 Text
of Proposed Order)(Volk, Andrew) Modified on 12/8/2004 (RF, Case Administrator) to add link to Praecipe 20 (Entered: 11/29/2004)

11/29/2004

703 NOTICE of Hearing on Motion re 702 MOTION for Leave to File Excess Pages in Opposition to Defendants' Motions for Summary Judgment: Motion Hearing set for 12/30/2004 at 04:30 PM Without Oral Argument for 702, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

704 MEMORANDUM in Opposition re 676 MOTION for Summary Judgment On Civil Conspiracy Claim filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

705 MEMORANDUM in Opposition re 677 MOTION for Summary Judgment on Plaintiffs' Civil Rico Claims filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

706 MEMORANDUM Plaintiffs' Omnibus Statement of Material Facts Percluding a Grant of Summary Judgment in Defendants' Favor on Any Of Their Motions by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

707 MEMORANDUM Plaintiffs' Response to Undisputed Facts in Support of Selective's Motion for Summary Judgment by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

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11/29/2004

708 MEMORANDUM Plaintiffs' Response to William Zirkle's Statement of Material Facts Supporting SUmmary Judgment by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

709 MEMORANDUM Plaintiffs' Response to Defendant Zirkle Fruit Company's Statement of Material Facts in Support of Motion for Summary Judgment by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

710 MEMORANDUM Plaintiffs' Response to Individual Defendants' Statement of Material Facts in Support of Motion for Summary Judgment by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

711 DECLARATION by Andrew M. Volk In Support of Plaintiffs' Opposition to All Defendants' Motions for Summary judgment by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8 filed under seal# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10 filed under seal# 11 Exhibit Exhibit 11# 12 Exhibit Exhibit 12# 13 Exhibit Exhibit 13# 14 Exhibit Exhibit 14# 15 Exhibit Exhibit 15 filed under seal# 16 Exhibit Exhibit 16 filed under seal# 17 Exhibit Exhibit 17# 18 Exhibit Exhibit 18# 19 Exhibit Exhibit 19# 20 Exhibit Exhibit 20# 21 Exhibit Exhibit 21# 22 Exhibit Exhibit 22# 23 Exhibit Exhibit 23# 24 Exhibit Exhibit 24 - filed under seal# 25 Exhibit Exhibit 25# 26 Exhibit Exhibit 26# 27 Exhibit Exhibit 27 filed under seal# 28 Exhibit Exhibit 28# 29 Exhibit Exhibit 29# 30 Exhibit Exhibit 30# 31 Exhibit Exhibit 31 filed under seal# 32 Exhibit Exhibit 32 filed under seal# 33 Exhibit Exhibit 33 filed under seal# 34 Exhibit Exhibit 34 filed under seal# 35 Exhibit Exhibit 35 filed under seal# 36 Exhibit Exhibit 36 filed under seal# 37 Exhibit Exhibit 37 filed under seal# 38 Exhibit Exhibit 38# 39 Exhibit Exhibit 39 filed under seal# 40 Exhibit Exhibit 40 filed under seal# 41 Exhibit Exhibit 41 filed under seal)(Volk, Andrew) (Entered: 11/29/2004)

11/29/2004

757 Reserved for Court Use. (PART 1 OF 2) (Attachments: # (1) pgs 51100# (2) pgs 101-150# (3) pgs 151-200# (4) pgs 201-250# (5) pgs 251300# (6) pgs 301-325# (7) pgs 326-350)(RF, Case Administrator) (Entered: 12/29/2004)

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11/29/2004

758 Reserved for Court Use. (PART 2 OF 2) (Attachments: # (1) pgs 376400# (2) pgs 401-450# (3) pgs 451-500# (4) pgs 501-525# (5) pgs 526550# (6) pgs 551-581)(RF, Case Administrator) (Entered: 12/29/2004)

12/03/2004

712 First MOTION for Sanctions by all plaintiffs. (Attachments: # 1) (Foster, Howard) (Entered: 12/03/2004)

12/03/2004

713 NOTICE of Hearing on Motion Oral Argument Requested re 712 First MOTION for Sanctions: Motion Hearing set for 1/27/2005 at 08:30 AM Yakima Video Conference for 712, before Chief Judge Fred Van Sickle (Attachments: # 1)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

714 First MOTION for Sanctions by all plaintiffs. (Attachments: # 1) (Foster, Howard) (Entered: 12/03/2004)

12/03/2004

715 MEMORANDUM by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

716 DECLARATION by Howard Foster in Support re 714 First MOTION for Sanctions filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

717 Praecipe filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez :. (Attachments: # 1 Text of Proposed Order Proposed Order)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

718 First MOTION for Leave to File Excess Pages by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Attachments: # 1 # 2 # 3)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

719 NOTICE of Hearing on Motion re 718 First MOTION for Leave to File Excess Pages: Motion Hearing set for 1/5/2005 at 04:30 PM Without Oral Argument for 718, before Chief Judge Fred Van Sickle (Attachments: # 1)(Foster, Howard) (Entered: 12/03/2004)

12/03/2004

721 MOTION to Extend Their Time to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment by Zirkle Defendants'. (Attachments: # 1 Text of Proposed Order)(CR, Case Administrator)
(Entered: 12/07/2004)

12/03/2004

722 AFFIDAVIT by Mark D Watson in Support re 721 MOTION to Extend
Their Time to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment filed by Zirkle Defendants'. (CR, Case Administrator) (Entered: 12/07/2004)

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12/03/2004

723 NOTICE of Hearing on Motion re 721 MOTION to Extend Their Time to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment. Motion Hearing set for 12/10/2004 at 04:30 PM Without Oral Argument for 721, before Chief Judge Fred Van Sickle (CR, Case Administrator) (Entered: 12/07/2004)

12/06/2004

720 Praecipe filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez : Re 702 MOTION for Leave to File Excess Pages in Opposition to Defendants' Motions for Summary Judgment. (Attachments: # 1 Motion for Leave to File Excess Pages)(Volk, Andrew) (Entered: 12/06/2004)

12/06/2004

724 CERTIFICATE OF SERVICE by Zirkle Defendants' re 721 MOTION to Extend Their Time to Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment, 722 Affidavit in Support of Motion, 723 Notice of Hearing on Motion, (CR, Case Administrator) (Entered: 12/07/2004)

12/07/2004

725 TEXT ORDER (NO PDF ATTACHED) granting 702 Motion for Leave to File Excess Pages, granting 718 Motion for Leave to File Excess Pages . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/07/2004)

12/13/2004

726 DECLARATION by Janet Lang in Support re 668 MOTION for Summary Judgment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/13/2004)

12/13/2004

727 REPLY MEMORANDUM re 668 MOTION for Summary Judgment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/13/2004)

12/13/2004

728 MOTION for Leave to File Excess Pages by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/13/2004)

12/13/2004

729 NOTICE of Hearing on Motion re 728 MOTION for Leave to File Excess Pages: Motion Hearing set for 1/17/2005 at 04:30 PM Without Oral Argument for 728, before Chief Judge Fred Van Sickle (Monahan, Brendan) (Entered: 12/13/2004)

12/13/2004

731 Reserved for Court Use. (RF, Case Administrator) (Entered: 12/15/2004)

12/14/2004

730 EMERGENCY REQUEST OF DEFENDANTS FOR A SCHEDULING CONFERENCE by Zirkle Defendants. (RF, Case Administrator) (Entered: 12/15/2004)

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12/15/2004

732 RESPONSE to Motion re 730 MOTION for Hearing Plaintiffs'
Opposition to Emergency Motion for a Scheduling Conference filed by Juana Mendiola, Olivia Mendoza, Victor Sanchez. (Volk, Andrew) (Entered: 12/15/2004)

12/15/2004

733 Plaintiffs' MEMORANDUM in Opposition to Defendants' 730 Emergency Request for a Scheduling Conference. (RF, Case Administrator) (Entered: 12/15/2004)

12/16/2004

734 MOTION for Extension of Time to File Response/Reply as to 714 First MOTION for Sanctions by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co. (Attachments: # 1 Text of Proposed Order) (RF, Case Administrator) (Entered: 12/20/2004)

12/16/2004

735 AFFIDAVIT by Mark D Watson in Support of 734 MOTION for Extension of Time to File Response/Reply as to 714 First MOTION for Sanctions filed by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/20/2004)

12/16/2004

736 NOTICE of Hearing on Motion re 734 MOTION for Extension of Time to File Response/Reply as to 714 First MOTION for Sanctions: Motion Hearing set for 12/20/2004 at 04:30 PM Without Oral Argument for 734, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 12/20/2004)

12/16/2004

737 CERTIFICATE OF SERVICE by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co re 734 MOTION for Extension of Time to File Response/Reply as to 714 First MOTION for Sanctions, 735 Affidavit in Support of Motion, 736 Notice of Hearing on Motion, (RF, Case Administrator) Modified on 12/20/2004 (RF, Case Administrator) WRONG PDF ATTACHED. SEE COURT RECORD 738 (Entered: 12/20/2004)

12/16/2004

738 Docket Annotation - Re Filing Error: 737 Proof of Service ATTACHING CORRECT PDF (RF, Case Administrator) (Entered: 12/20/2004)

12/17/2004

742 REPLY STATEMENT OF FACTS in support of 676 MOTION for
Summary Judgment filed by William - Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

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12/17/2004

743 MEMORANDUM in supprt of its objections to Plaintiffs' Evidentiary Submissions on Summary Judgment by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

744 REPLY STATEMENT OF FACTS in support of Summary Judgment by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

745 REPLY STATEMENT OF FACTS in support of Summary Judgment by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

746 Zirkle Fruit Company's REPLY MEMORANDUM in Support re 676
MOTION for Summary Judgment Dismissal filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

747 MOTION to Strike Plaintiffs' Evidentiary Submissions Submitted in Opposition to Zirkle Defendant's Motions for Summary Judgment by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

748 Zirkle Defendants' REPLY Statement of Material Facts in Repooly to Plaintiffs' Omnibus Statement of Facts, and Disputing or Clarifying the facts asserted by Plaintiffs and containing evidentiary objbections to pursuant to LR 56.1(c) by William - Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-41# 2 pgs 42-58)
(RF, Case Administrator) (Entered: 12/23/2004)

12/17/2004

752 Reserved for Court Use. (Attachments: # (1) part 2 of 5# (2) part 3 of 5# (3) part 4 of 5# (4) part 5 of 5)(RF, Case Administrator) (Entered: 12/27/2004)

12/20/2004

739 ORDER granting 721 Motion for Extension of Time to File Response/
Reply. Defendant shall have until December 17, 2004, to file a reply.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/20/2004)

12/20/2004

749 MOTION to File Reply Affidavit of Mark Watson in Support of Motion for Summary Judgment under Seal by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 Text of Proposed
Order)(RF, Case Administrator) (Entered: 12/23/2004)

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12/20/2004

750 NOTICE of Hearing on Motion re 749 MOTION to File Reply Affidavit of Mark Watson in Support of Motion for Summary Judgment under Seal: Motion Hearing set for 12/30/2004 at 04:30 PM Without Oral Argument for 749, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 12/23/2004)

12/21/2004

740 TEXT ORDER: NO PDF ATTACHEDThe "Emergency Request of Defendants for a Scheduling Conference" (Ct. Rec. 730) is denied. The "Defendants' Motion for Reconsideration" (Ct. Rec. 697) is granted in part. The deadlines in paragraphs 4, 5 and 7 of the Scheduling Conference Order of October 26, 2004, are extended by 14 days.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/21/2004)

12/22/2004

741 ORDER granting 728 Motion for Leave to File Excess Pages . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/22/2004)

12/23/2004

751 Praecipe filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez:. (Attachments: # 1 pgs 19-36)(RF, Case Administrator) (Entered: 12/23/2004)

12/23/2004

753 REPLY AFFIDAVIT OF RYAN M EDGLEY by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 12/28/2004)

12/23/2004

754 REPLY MEMORANDUM supporting 676 MOTION for Summary Judgment filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 11-23)(RF, Case Administrator) (Entered: 12/28/2004)

12/23/2004

755 CERTIFICATE OF SERVICE by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co re 753 Reply Affidavit of Ryan Edgley and 754 Reply Memorandum (RF, Case Administrator) (Entered: 12/28/2004)

12/28/2004

756 TEXT ORDER: NO PDF ATTACHED "Zirkle Defendants' Motion for Extension of Time for Responding to Plaintiffs' Motion for Sanctions" (Ct. Rec. 734) is granted. The Zirkle defendants' deadline for filing a response to Ct. Rec. 714 is extended until December 29, 2004.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/28/2004)

12/29/2004

759 MOTION to Withdraw as Attorney (atty Pamela J. DeRusha) by USA. (DeRusha, Pamela) (Entered: 12/29/2004)

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12/29/2004

760 NOTICE of Hearing on Motion re 759 MOTION to Withdraw as Attorney (atty Pamela J. DeRusha): Motion Hearing set for 2/10/2005 at 04:30 PM Without Oral Argument for 759, before Chief Judge Fred Van Sickle (DeRusha, Pamela) (Entered: 12/29/2004)

12/29/2004

761 MOTION to File Excess Pages re: Memorandum in Opposition to Plaintiffs' Motion for Sanctions by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Attachments: # 1 Text of Proposed
Order)(RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

762 NOTICE of Hearing on Motion re 761 MOTION for Leave to File Excess Pages: Motion Hearing set for 1/7/2005 at 04:30 PM Without Oral Argument for 761, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

763 AFFIDAVIT by Jamie Allenbaugh in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-40# 2 pgs 41-43)(RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

764 AFFIDAVIT by Ryan M Edgley in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

765 AFFIDAVIT by Grant Goss in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-28)(RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

766 AFFIDAVIT by Gary Hudson in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

767 AFFIDAVIT by Juana Castaneda in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-29)(RF, Case Administrator) (Entered: 01/03/2005)

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12/29/2004

768 AFFIDAVIT by William Wangler in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

769 AFFIDAVIT by Scott Cluff in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

770 AFFIDAVIT by Lavonne Josey in Opposition to Plaintiffs' 714 First MOTION for Sanctions, 712 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

771 AFFIDAVIT by Toni Jenft in Opposition to Plaintiffs' 714 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

772 AFFIDAVIT by William Zirkle in Opposition to Plaintiffs' 714 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

773 AFFIDAVIT by Mark Zirkle in Opposition to Plaintiffs' 714 First MOTION for Sanctions filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/03/2005)

12/29/2004

774 Reserved for Court Use. **PART 1 OF 4** (Attachments: # (1) pgs 3157# (2) pgs 58-100# (3) pgs 101-134# (4) pgs 135-167# (5) pgs 168197# (6) pgs 198-218# (7) pgs 219-240# (8) pgs 241-262# (9) pgs 263287)(RF, Case Administrator) (Entered: 01/04/2005)

12/29/2004

775 Reserved for Court Use. **PART 2 OF 4** (Attachments: # (1) pgs 320-350# (2) pgs 351-385# (3) pgs 386-416# (4) pgs 417-449# (5) pgs 450-475# (6) pgs 476-504# (7) pgs 505-553# (8) pgs 554-583# (9) pgs 584-615)(RF, Case Administrator) (Entered: 01/04/2005)

12/29/2004

776 Reserved for Court Use. ** PART 3 OF 4** (Attachments: # (1) pgs 646-669# (2) pgs 670-695# (3) pgs 696-727# (4) pgs 728-743# (5) pgs 744-757# (6) pgs 758-771# (7) pgs 772-785# (8) pgs 786-799# (9) pgs 800-813# (10) pgs 814-827)(RF, Case Administrator) (Entered: 01/04/2005)

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12/29/2004

777 Reserved for Court Use. **PART 4 OF 4** (Attachments: # (1) pgs 842-855# (2) pgs 856-884# (3) pgs 885-908# (4) pgs 909-936# (5) pgs 937-968# (6) pgs 969-1000# (7) pgs 1001-1020# (8) pgs 1021-1043# (9) pgs 1044-1066)(RF, Case Administrator) (Entered: 01/04/2005)

12/29/2004

778 Zirkle Fruit Defendants' MEMORANDUM in Opposition to Plaintiffs' 714 MOTION for Sanctions filed by William Zirkle, William Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-29)(RF, Case Administrator) (Entered: 01/07/2005)

01/07/2005

779 MOTION for Leave to File Excess Pages and File Late Response by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard)
Modified on 1/10/2005 (RF, Case Administrator) WRONG PDF ATTACHED. (Entered: 01/07/2005)

01/07/2005

780 re: Ps; Memo in Opp to Ds Mot to Strike NOTICE of Hearing on Motion re 779 MOTION for Leave to File Excess Pages and File Late Response: Motion Hearing set for 2/8/2005 at 04:30 PM Yakima for 779, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 01/07/2005)

01/07/2005

781 MEMORANDUM in Opposition re 747 MOTION to Strike, 779 MOTION for Leave to File Excess Pages and File Late Response filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A.1# 2 Exhibit A.2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D) (Foster, Howard) (Entered: 01/07/2005)

01/07/2005

782 RESPONSE re 781 Memorandum in Opposition to Motion,, 742 Reply Memorandum Resp to Supp. Evidentiary Objections in Ds' Reply Statement of Material Facts by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Foster, Howard) (Entered: 01/07/2005)

01/10/2005

783 NOTICE of Hearing on Motion re 779 MOTION for Leave to File Excess Pages and File Late Response: Motion Hearing set for 2/10/2005 at 06:30 PM Yakima Video Conference for 779, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 01/10/2005)

01/10/2005

784 Errata filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez: (Leave to File Oversize Briefs/Late Response. (Attachments: # 1 Motion# 2 Text of Proposed Order)(Foster, Howard) (Entered: 01/10/2005)

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01/10/2005

785 Praecipe filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez: Re 781 Memorandum in Opposition to Motion,. (Foster, Howard) (Entered: 01/10/2005)

01/10/2005

787 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 1 OF 9** (Attachments: # 1 pgs 21-40# 2 pgs 41-60# 3 pgs 61-80# 4 pgs 81100# 5 pgs 101-120# 6 pgs 121-140# 7 pgs 141-160# 8 pgs 161-180# 9 pgs 181-200# 10 pgs 201-220# 11 pgs 221-240# 12 pgs 241-260# 13 pgs 261-180# 14 pgs 281-300# 15 pgs 301-320)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

788 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 2 OF 9** (Attachments: # 1 pgs 341-360# 2 pgs 361-380# 3 pgs 381-400# 4 pgs 401-420# 5 pgs 421-400)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

789 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 3 OF 9** (Attachments: # 1 pgs 461-480# 2 pgs 481-500# 3 pgs 501-520# 4 pgs 521-540# 5 pgs 541-560)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

790 NOTICE OF FILING OPT-OUT FORMS by Plaintiff **PART 4 OF 9** (Attachments: # 1 pgs 581-600# 2 pgs 601-620# 3 pgs 621-640# 4 pgs 641-660# 5 pgs 661-680# 6 pgs 681# 7 pgs 701-720# 8 pgs 721740)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

791 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 5 OF 9** (Attachments: # 1 pgs 761-780# 2 pgs 781-800# 3 pgs 801-820# 4 pgs 821-840# 5 pgs 841-860# 6 pgs 861-880# 7 pgs 881-900)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

792 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 6 OF 9** (Attachments: # 1 pgs 921-940# 2 pgs 941-960# 3 pgs 961-980# 4 pgs 981-1000# 5 pgs 1001-1020# 6 pgs 1021-1040# 7 pgs 1041-1060) (RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

793 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 7 OF 9** (Attachments: # 1 pgs 1081-1100# 2 pgs 1101-1120# 3 pgs 11211140# 4 pgs 1141-1160# 5 pgs 1161-1180# 6 pgs 1181-1200)(RF, Case Administrator) (Entered: 01/12/2005)

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01/10/2005

794 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 8 OF 9** (Attachments: # 1 pgs 1221-1240# 2 pgs 1241-1260# 3 pgs 12611280# 4 pgs 1281-1300# 5 pgs 1301-1320# 6 pgs 1321-1340)(RF, Case Administrator) (Entered: 01/12/2005)

01/10/2005

795 NOTICE OF FILING OPT-OUT FORMS by Plaintiffs **PART 9 OF 9** (Attachments: # 1 PGS 1361-1380# 2 pgs 1381-1400# 3 pgs 14011420# 4 pgs 1421-1440# 5 pgs 1441-1460# 6 pgs 1461-1463)(RF, Case Administrator) (Entered: 01/12/2005)

01/11/2005

786 Zirkle Defendants' RESPONSE to Plaintiffs' Praceipe dated 12/22/04 (and correspondingly in response to Plaintiffs' Omnibus Statement of Material Facts by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/12/2005)

01/14/2005

796 MOTION for Leave to File Excess Pages and Untimely Reply Brief by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 01/14/2005)

01/14/2005

797 NOTICE of Hearing on Motion re 796 MOTION for Leave to File Excess Pages and Untimely Reply Brief: Motion Hearing set for 2/14/2005 at 06:30 PM Without Oral Argument for 796, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 01/14/2005)

01/14/2005

798 REPLY MEMORANDUM re 796 MOTION for Leave to File Excess Pages and Untimely Reply Brief Re: Motion for Sanctions filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit L# 2 Errata M# 3 Exhibit N# 4 Exhibit O# 5 Exhibit P# 6 Exhibit Q# 7 Declaration)(Foster, Howard) (Entered: 01/14/2005)

01/18/2005

799 Exhibit List by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 01/18/2005)

01/18/2005

800 Witness List by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 01/18/2005)

01/18/2005

801 Exhibit List Plaintiffs by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/18/2005)

01/18/2005

802 Witness List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/18/2005)

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01/18/2005

803 ORDER: denying as moot Matsons' 445 Motion for a separate trial; denying Selective Employment Agency's 449 Motion for Separate Trial; denying dfts' 600 Motion for Extension of Time to File, with leave to renew; granting in part and denying in part Selective Employment Agency Inc's 668 Motion for Summary Judgment; granting in part and denying in part Zirkle Fruit Co's 676 Motion for Summary Judgment; denying Zirkle Fruit Co, Zirkle, Wangler & Hudson's 677 Motion for Summary Judgment; denying 747 Motion to Strike. Signed by Judge Fred Van Sickle. (LE, Case Administrator) (Entered: 01/18/2005)

01/18/2005

805 Exhibit List by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/20/2005)

01/18/2005

806 Witness List by William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/20/2005)

01/18/2005

807 MOTION to Exceed Page Limit Re: Reply Memorandum by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Attachments: # 1 Text of Proposed Order)(RF, Case Administrator) (Entered:
01/20/2005)

01/18/2005

808 NOTICE of Hearing on Motion re 807 MOTION for Leave to File Excess Pages: Motion Hearing set for 1/27/2005 at 06:30 PM Without Oral Argument for 807, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 01/20/2005)

01/18/2005

809 REPLY MEMORANDUM in support of 747 MOTION to Strike filed by Gary Hudson, William Zirkle, William Wangler and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/20/2005)

01/18/2005

810 REPLY MEMORANDUM in support of their LR 56.1(c) Evidentiary Objections by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-37)(RF, Case Administrator)
(Entered: 01/20/2005)

01/19/2005

804 Exhibit List Amended by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 01/19/2005)

01/19/2005

814 Supplemental Exhibit List by Defendants William Zirkle, Gary Hudson, William Wangler and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/21/2005)

01/20/2005

811 Second MOTION for Sanctions for Spoliation of Evidence by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 01/20/2005)

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01/20/2005

812 NOTICE of Hearing on Motion Oral Argument Requested re 811 Second MOTION for Sanctions for Spoliation of Evidence: Motion Hearing set for 2/22/2005 at 08:30 AM Yakima for 811, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 01/20/2005)

01/20/2005

813 MEMORANDUM in Support re 811 Second MOTION for Sanctions for Spoliation of Evidence filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Declaration)(Foster, Howard) (Entered: 01/20/2005)

01/21/2005

824 STIPULATED MOTION for Extension of Time to File (with proposed Order attached) by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/25/2005)

01/21/2005

826 Zirkle Defendants' Objection to Plaintiffs' Additional Evidentiary Submissions in their Reply Brief in Support of Motion for Sanctions by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/25/2005)

01/21/2005

827 Supplemental AFFIDAVIT by Mark D Watson in Opposition to 811
Second MOTION for Sanctions filed by William Zirkle, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/25/2005)

01/24/2005

815 TEXT ORDER (NO PDF ATTACHED) Assistant United States Attorney Pamela J. DeRusha's motion to withdraw (Ct. Rec. 759) is granted. The Zirkle defendants' motion to file an overlength memorandum (Ct. Rec. 761) is granted. . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 01/24/2005)

01/24/2005

816 MOTION in Limine To Bar Any Reference To V-Dare Article by all plaintiffs. (Attachments: # 1 Text of Proposed Order re Bar Any Reference to V-Dare Article)(Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

817 NOTICE of Hearing on Motion re 816 MOTION in Limine To Bar Any Reference To V-Dare Article: Motion Hearing set for 2/22/2005 at 06:30 PM for 816, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates by all plaintiffs. (Attachments: # 1 Text of Proposed Order
To Exclude Evid re Damages or Wage Rates)(Volk, Andrew) (Entered: 01/24/2005)

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01/24/2005

819 NOTICE of Hearing on Motion re 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates: Motion Hearing set for 2/22/2005 at 06:30 PM for 818, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers by all plaintiffs. (Attachments: # 1 Text of Proposed Order Bar Reference to
Defenses)(Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

821 NOTICE of Hearing on Motion re 820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers: Motion Hearing set for 2/22/2005 at 06:30 AM for 820, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel by all plaintiffs. (Attachments: # 1 Text of Proposed
Order Bar Reference to Counsels' Domicile)(Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

823 NOTICE of Hearing on Motion re 822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel: Motion Hearing set for 2/22/2005 at 06:30 PM for 822, before Chief Judge Fred Van Sickle (Volk, Andrew) (Entered: 01/24/2005)

01/24/2005

825 NOTICE of Hearing on Motion re 824 MOTION for Extension of Time to File: Motion Hearing set for 1/28/2005 at 06:30 PM Without Oral Argument for 824, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 01/25/2005)

01/24/2005

828 MOTION in Limine by Zirkle Defendants'. (CR, Case Administrator) Additional attachment(s) added on 1/26/2005 (RF, Case Administrator). (Entered: 01/26/2005)

01/25/2005

833 NOTICE of Hearing on Motion re 828 MOTION in Limine: Motion Hearing set for 2/25/2005 at 06:30 PM Without Oral Argument for 828, before Chief Judge Fred Van Sickle (RF, Case Administrator) (Entered: 01/26/2005)

01/25/2005

834 CERTIFICATE OF SERVICE by William Zirkle, William Wangler, Zirkle Fruit Co re 833 Notice of Hearing on Motion in Limine and Proposed Order (RF, Case Administrator) (Entered: 01/26/2005)

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01/26/2005

829 OBJECTIONS re 806 Witness List Plaintiffs' Objections To Zirkle Defendants' Witness List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/26/2005)

01/26/2005

830 OBJECTIONS re 805 Exhibit List, 814 Exhibit List Plaintiffs'
Objections To Exhibit List of Defendants Zirkle Fruit Co., William Zirkle, William Wangler and Gary Hudson by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/26/2005)

01/26/2005

831 RESPONSE re 800 Witness List Plaintiffs' Response To Defendant Selective Employment's Witness List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/26/2005)

01/26/2005

832 OBJECTIONS re 804 Exhibit List Plaintiffs' Objections To Defendant Selective Employment's Amended Exhibit List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 01/26/2005)

01/26/2005

835 OBJECTIONS re 801 Exhibit List filed by Plaintiffs by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 01/26/2005)

01/26/2005

836 MEMORANDUM re 801 Exhibit List filed by Plaintiffs by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 01/26/2005)

01/26/2005

837 Zirkle Defendants' OBJECTIONS to Plaintiffs' 802 Witness List by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/28/2005)

01/26/2005

838 Zirkle Defendants' OBJECTIONS to Selective's Amended 804 Exhibit & Witness Lists by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 01/28/2005)

01/26/2005

839 Zirkle Defendants' OBJECTION to Plaintiffs' 801 Exhibits and Memorandum in Support thereof by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-41# 2 pgs 42-47)(RF, Case Administrator) (Entered: 01/28/2005)

01/26/2005

840 Reserved for Court Use. (PART 1 OF 2) (Attachments: # (1) pgs 21-41# (2) pgs 42-62# (3) pgs 63-83# (4) pgs 84-104# (5) pgs 105-125# (6) pgs 126-146# (7) pgs 147-167# (8) pgs 168-188# (9) pgs 189-210)(RF, Case Administrator) (Entered: 01/28/2005)

01/26/2005

841 Reserved for Court Use. (PART 2 OF 2) (Attachments: # (1) pgs 231251# (2) pgs 252-272# (3) pgs 273-293# (4) 294-314# (5) pgs 315-335# (6) pgs 336-346)(RF, Case Administrator) (Entered: 01/28/2005)

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01/27/2005

842 NOTICE of Association of Counsel by Diehl Randall Rettig on behalf of William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co (RF, Case Administrator) (Entered: 01/31/2005)

02/03/2005

843 Notice of Filing Objections to Deposition Designations and Cross Designations of Zirkle Defendants by Plaintiffs Olivia Mendoza, Juana Mendiola and Victor Sanchez. (RF, Case Administrator) (Entered: 02/03/2005)

02/03/2005

844 OBJECTIONS To Plaintiffs' Deposition Designations by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 02/03/2005)

02/03/2005

845 ORDER re 668 MOTION for Summary Judgment is granted in part and denied in part filed by Selective Employment Agency Inc,, 676 MOTION for Summary Judgment is granted in part and denied in part filed by Zirkle Fruit Co,, William - Zirkle . Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 02/03/2005)

02/03/2005

862 Defendants' OBJECTIONS to Plaintiffs' Designated Deposition Testimony by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 21-40# 2 pgs 41-60# 3 pgs 61-64)
(RF, Case Administrator) (Entered: 02/09/2005)

02/03/2005

863 MEMORANDUM in Opposition to Plaintiffs' 811 Second MOTION for
Sanctions for Spoliation of Evidence filed by William - Zirkle, William - Wangler, Gary Hudson and Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/09/2005)

02/03/2005

864 AFFIDAVIT by Travis Yoerger Denying Any Destruction of I-9 Forms by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/09/2005)

02/03/2005

865 CERTIFICATE OF SERVICE by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co re 863 Memorandum in Opposition
to Second Motion for Sanctions (RF, Case Administrator) (Entered: 02/09/2005)

02/04/2005

846 MOTION for Leave to Appear Pro Hac Vice by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 02/04/2005)

02/04/2005

847 MEMORANDUM re 846 MOTION for Leave to Appear Pro Hac Vice In Support of Motion by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 02/04/2005)

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02/04/2005

848 NOTICE of Hearing on Motion re 846 MOTION for Leave to Appear Pro Hac Vice: Motion Hearing set for 3/7/2005 at 06:30 PM Yakima for 846, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 02/04/2005)

02/04/2005

849 MOTION for Leave to File Oversize Brief In Resp to Defendants' Motions in Limine by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 02/04/2005)

02/04/2005

850 NOTICE of Hearing on Motion re 849 MOTION for Leave to File Oversize Brief In Resp to Defendants' Motions in Limine: Motion Hearing set for 3/7/2005 at 06:30 PM Yakima for 849, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 02/04/2005)

02/04/2005

851 RESPONSE to Motion re 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates, 820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers, 822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel, 849 MOTION for Leave to File Oversize Brief In Resp to Defendants' Motions in Limine filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Foster, Howard) (Entered: 02/04/2005)

02/04/2005

852 MEMORANDUM in Support re 849 MOTION for Leave to File Oversize Brief In Resp to Defendants' Motions in Limine 851 Resp to Motion filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) Modified on 2/7/2005 WR0NG EVENT USED, ATTORNEY REFILED IT UNDER CORRECT EVENT (CR, Case Administrator). (Entered: 02/04/2005)

02/04/2005

853 DECLARATION by Howard Foster in Support re 849 MOTION for Leave to File Oversize Brief In Resp to Defendants' Motions in Limine 851 Resp to Defendants' Motions in Limine filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 02/04/2005)

02/04/2005

854 NOTICE of Hearing - Text entry; no PDF document. - By Court: The Pretrial Conference previously scheduled for 2/22/04 is RESET for 2/24/2005 10:00 AM in Yakima before Chief Judge Fred Van Sickle. (CP, Courtroom Deputy) (Entered: 02/04/2005)

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02/04/2005

866 AFFIDAVIT by Ryan M Edgley in Opposition to 811 Second MOTION for Sanctions for Spoliation of Evidence filed by William Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (Attachments: # 1 pgs 20-40)(RF, Case Administrator) (Entered: 02/09/2005)

02/07/2005

Payment Received: Receipt #60565 in the amount of $100.00 from Johnson & Bell re Pro Hac Vice fee for Jack T. Riley. (RF, Case Administrator) (Entered: 02/07/2005)

02/07/2005

855 First MOTION for Extension of Time to File Response/Reply as to 813 Memorandum in Support of Motion, 811 Second MOTION for Sanctions for Spoliation of Evidence, 812 Notice of Hearing on Motion by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 02/07/2005)

02/07/2005

856 NOTICE of Hearing on Motion re 855 First MOTION for Extension of Time to File Response/Reply as to 813 Memorandum in Support of Motion, 811 Second MOTION for Sanctions for Spoliation of Evidence, 812 Notice of Hearing on Motion: Motion Hearing set for 3/10/2005 at 06:30 PM Without Oral Argument for 855, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 02/07/2005)

02/07/2005

857 RESPONSE to Defendants' Objections to Plaintiffs' Witnesses by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/07/2005)

02/07/2005

858 DECLARATION by Andrew M. Volk re 857 Response by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/07/2005)

02/07/2005

859 DECLARATION by Lynn Brammeier re 857 Response by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/07/2005)

02/07/2005

867 Zirkle Defendants' RESPONSE to Plaintiff's Motions in Limine re 822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel, 816 MOTION in Limine To Bar Any Reference To V-Dare Article, 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates, 820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers filed by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/09/2005)

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02/07/2005

869 RESPONSE to Defendants' 839 Objections to Plaintiffs' Exhibits 835 Objections by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 pgs 21-40)(RF, Case Administrator) (Entered: 02/10/2005)

02/07/2005

882 Reserved for Court Use. (Attachments: # (1) Pages 71-140# (2) Pages 141-215# (3) Pages 216-290# (4) Pages 291-360# (5) Pages 361-425# (6) Pages 426-490# (7) Pages 490-530)(HG, ) (Entered: 02/17/2005)

02/07/2005

883 Reserved for Court Use. (Attachments: # (1) Pages 555-583# (2) Pages 584-613# (3) Pages 614-657# (4) Pages 658-688# (5) Pages 689-714# (6) Pages 715-751# (7) Pages 752-804)(HG, ) (Entered: 02/17/2005)

02/07/2005

884 Reserved for Court Use. (Attachments: # (1) Pages 832-862# (2) Pages 864-894# (3) Pages 895-926# (4) Pages 927-958# (5) Pages 959-990# (6) Pages 991-1022# (7) Pages 1023-1042# (8) Pages 1043-1057# (9) Pages 1058-1087)(HG, ) (Entered: 02/18/2005)

02/07/2005

885 Reserved for Court Use. (Attachments: # (1) Pages 1118-1147# (2) Pages 1148-1177# (3) Pages 1178-1207# (4) Pages 1208-1237# (5) Pages 1238-1268# (6) Pages 1269-1298# (7) Pages 1299-1328)(HG, ) (Entered: 02/18/2005)

02/07/2005

886 Reserved for Court Use. (Attachments: # (1) Pages 1359-1388# (2) Pages 1389-1418# (3) Pages 1419-1450# (4) Pages 1451-1482# (5) Pages 1483-1513# (6) Pages 1484-1543# (7) Pages 1544-1573# (8) Pages 1574-1603)(HG, ) (Entered: 02/18/2005)

02/07/2005

887 Reserved for Court Use. (Attachments: # (1) Pages 1632-1659# (2) Pages 1660-1693# (3) Pages 1726-1756# (4) Pages 1726-1756# (5) Pages 1757-1789# (6) Pages 1790-1820# (7) Pages 1821-1839# (8) Pages 1840-1852)(HG, ) (Entered: 02/18/2005)

02/07/2005

892 Reserved for Court Use. (Attachments: # (1) Pages 1883-1912# (2) Pages 1913-1942# (3) Pages 1943-1971# (4) Pages 1972-1993# (5) Pages 1994-2015# (6) Pages 2016-2043# (7) Pages 2044-2071)(HG, ) (Entered: 02/22/2005)

02/07/2005

896 Reserved for Court Use. (Attachments: # (1) Pages 2100-2127# (2) Pages 2128-2155# (3) Pages 2156-2184# (4) Pages 2185-2215# (5) Pages 2215-2243# (6) Pages 2244-2271# (7) Pages 2272-2301)(HG, ) (Entered: 02/23/2005)

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02/07/2005

897 Reserved for Court Use. (Attachments: # (1) Pages 2332-2361# (2) Pages 2362-2388# (3) Pages 2389-2415# (4) Pages 2416-2443# (5) Pages 2444-2471# (6) Pages 2472-2499# (7) Pages 2500-2527)(HG, ) (Entered: 02/23/2005)

02/07/2005

898 Reserved for Court Use. (Attachments: # (1) Pages 2557-2588# (2) Pages 2589-2619# (3) Pages 2620-2647# (4) Pages 2648-2675# (5) Pages 2676-2704# (6) Pages 2705-2734# (7) Pages 2735-2762)(HG, ) (Entered: 02/23/2005)

02/07/2005

899 Reserved for Court Use. (Attachments: # (1) Pages 2791-2814# (2) Pages 2815-2842# (3) Pages 2843-2871# (4) Pages 2872-2900# (5) Pages 2901-2929# (6) Pages 2930-2958# (7) Pages 2959-2986)(HG, ) (Entered: 02/23/2005)

02/07/2005

900 Reserved for Court Use. (Attachments: # (1) Pages 3016-6045# (2) Pages 3046-3083# (3) Pages 3084-3136# (4) Pages 3137-3190# (5) Pages 3191-3244# (6) Pages 3245-3302)(HG, ) (Entered: 02/23/2005)

02/07/2005

901 Reserved for Court Use. (Attachments: # (1) Pages 3356-3402# (2) Pages 3403-3447# (3) Pages 3448-3492# (4) Pages 3493-3537# (5) Pages 3538-3582# (6) Pages 3583-3627)(HG, ) (Entered: 02/23/2005)

02/08/2005

860 MOTION in Limine to Exclude Defendants from Accusing Plaintiffs or Plaintiffs' Counsel of Being Racially Biased by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered:
02/08/2005)

02/08/2005
02/08/2005 02/09/2005

861 NOTICE of Hearing on Motion Oral Argument Requested re 860 MOTION in Limine to Exclude Defendants from Accusing Plaintiffs or Plaintiffs' Counsel of Being Racially Biased: Motion Hearing set for 2/24/2005 at 10:00 AM Yakima for 860, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 02/08/2005)
868 CERTIFICATE OF SERVICE by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co re 867 Response to Motions in Limine (RF, Case Administrator) (Entered: 02/10/2005)
873 Zirkle Defendants' RESPONSE to Plaintiffs' Objections to Defendants' Witnesses by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/14/2005)

02/09/2005

874 AFFIDAVIT by Mark D Watson in Response to Plaintiffs' Objections to Defendants' Witnesses by William - Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/14/2005)

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02/09/2005

875 Zirkle Defendants' REPLY to Plaintiffs' Objections to Defendants' Exhibits by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/14/2005)

02/10/2005

876 Second Supplemental Exhibit List of Zirkle Defendants by William Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/14/2005)

02/11/2005

870 REPLY MEMORANDUM re 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Foster, Howard) (Entered: 02/11/2005)

02/11/2005

871 DECLARATION by Howard Foster in Support re 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates 870 Reply Memorandum Exhibits A-G filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 02/11/2005)

02/11/2005

872 PROOF OF SERVICE by Olivia Mendoza, Juana Mendiola, Victor Sanchez of Subpoena in a civil case (RF, Case Administrator) (Entered: 02/14/2005)

02/15/2005

877 MEMORANDUM in Opposition re 860 MOTION in Limine to Exclude Defendants from Accusing Plaintiffs or Plaintiffs' Counsel of Being Racially Biased, 822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel, 816 MOTION in Limine To Bar Any Reference To V-Dare Article, 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates, 820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 02/15/2005)

02/16/2005

878 AFFIDAVIT by Mandy Maxson Regarding Initial Review of No-Match Materials Not Timely Disclosed by Plaintiffs by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/16/2005)

02/16/2005

881 Reserved for Court Use. (Attachments: # (1) pgs 21-40# (2) pgs 40-61) (RF, Case Administrator) (Entered: 02/17/2005)

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02/17/2005

879 REPLY MEMORANDUM re 860 MOTION in Limine to Exclude Defendants from Accusing Plaintiffs or Plaintiffs' Counsel of Being Racially Biased, 822 MOTION in Limine To Bar Any Reference To The Domicile Of Plaintiffs' Counsel, 816 MOTION in Limine To Bar Any Reference To V-Dare Article, 818 MOTION in Limine To Exclude Any Evidence Regarding Damages Or Wage Rates, 820 MOTION in Limine To Bar Any Reference To Defenses Not Recognized Under RICO Or Properly Pleaded In Defendants' Answers [to Selective Employment Agency's Memo in Opposition to Plaintiffs' Motions in Limine] filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 02/17/2005)

02/17/2005

880 RESPONSE re 862 Objections Response To Defendants' Objections To Plaintiffs' Designated Deposition Testimony by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/17/2005)

02/18/2005

888 Proposed Pretrial Order by Selective Employment Agency Inc. (Attachments: # 1 Exhibit)(Monahan, Brendan) (Entered: 02/18/2005)

02/22/2005

889 REPLY MEMORANDUM in support of 811 Second MOTION for
Sanctions for Spoliation of Evidence filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (RF, Case Administrator) (Entered: 02/22/2005)

02/22/2005

890 DECLARATION by Andrew M Volk by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (RF, Case Administrator) (Entered: 02/22/2005)

02/22/2005

891 TEXT ORDER: No PDF attached. The trial schedule in this matter is VACATED. All the pretrial conference and trial dates are stricken. All pending deadlines are stricken. A telephonic scheduling conference will be held on March 9, 2005, at 8:30 a.m. The Court will initiate the call.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 02/22/2005)

02/22/2005

893 OBJECTIONS re 876 Exhibit List Plaintiffs' Objections To Zirkle Defendants' Second Supplemental Exhibit List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/22/2005)

02/22/2005

894 Exhibit List Plaintiffs' Supplemental Exhibit List by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 02/22/2005)

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02/23/2005

895 Zirkle Defendants' OBJECTIONS to those Witnesses Listed by Plaintiffs in the Pretrial order which were not disclosed in Plaintiffs' Witness List by William - Zirkle, Gary Hudson, William - Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 02/23/2005)

02/28/2005

902 NOTICE of Hearing - Text entry; no PDF document. - By Court: Telephonic Scheduling Conference set for 3/10/2005 08:30 AM before Chief Judge Fred Van Sickle. Plaintiff shall initiate the call. (moved from 3/9/2005)(KJH, Judicial Assistant) (Entered: 02/28/2005)

03/08/2005

903 NOTICE by all plaintiffs Of Firm Name Change (Volk, Andrew) (Entered: 03/08/2005)

03/08/2005

904 ORDER granting 779 Motion for Leave to File Excess Pages, granting 796 Motion for Leave to File Excess Pages, granting 807 Motion for Leave to File Excess Pages, granting 824 Motion for Extension of Time to File, granting 849 Motion for Leave to File, granting 855 Motion for Extension of Time to File Response/Reply . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 03/08/2005)

03/09/2005 03/09/2005 03/17/2005

905 TEXT ORDER (no pdf attached) The Court is inclined to schedule this matter for trial on either August 8, 2005, or October 3, 2005. The parties shall confer and make an earnest effort to resolve any issues regarding these dates.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 03/09/2005)
906 NOTICE of Hearing - Text entry; no PDF document. - By Court: Scheduling Conference set for 3/18/2005 11:00 AM in Telephonic Argument before Chief Judge Fred Van Sickle. (moved from 3/1o/2005) (KJH, Judicial Assistant) (Entered: 03/09/2005)
907 STATUS REPORT Plaintiffs' Amendment to Status Report by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 03/17/2005)

03/17/2005

908 STATUS REPORT by Zirkle Defendants, William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 03/18/2005)

03/18/2005 03/18/2005

909 AFFIDAVIT by Mark D Watson Regarding Discrepancies in Plaintiffs' Proposed Exhibit 1 by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 03/18/2005)
910 Zirkle Defendants' Reply Memorandum Regarding Objections to Plaintiffs' Exhibits by William Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (RF, Case Administrator) (Entered: 03/18/2005)

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03/18/2005

911 Minute Entry for TELEPHONIC proceedings held before Judge Fred Van Sickle : Scheduling Conference held on 3/18/2005. (Reported/ Recorded by: Not Reported) (BA, ) (Entered: 03/18/2005)

03/21/2005

912 ORDER - Pretrial Conference set for 12/14/2005 09:00 AM in Yakima before Chief Judge Fred Van Sickle. Jury Trial set for 1/9/2006 09:00 AM in Yakima before Chief Judge Fred Van Sickle. Signed by Judge Fred Van Sickle. (CR, Case Administrator) (Entered: 03/21/2005)

04/01/2005

914 MOTION Seal Exhibits to Supplemental Response by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Text of Proposed Order)(RF, Case Administrator) (Entered: 05/18/2005)

04/01/2005

915 NOTICE OF HEARING by Olivia Mendoza, Juana Mendiola, Victor Sanchez re 914 MOTION Seal Exhibits to Supplemental Response without oral argument. (RF, Case Administrator) (Entered: 05/18/2005)

04/01/2005

916 SUPPLEMENTAL RESPONSE CONCERNING PLAINTIFFS' EXHIBIT NOS. 1, 24 AND 50 by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (RF, Case Administrator) (Entered: 05/18/2005)

04/01/2005

918 Reserved for Court Use. PART 1 OF 3 (RF, Case Administrator) (Entered: 05/18/2005)

04/01/2005

919 Reserved for Court Use. PART 2 OF 3 (RF, Case Administrator) (Entered: 05/18/2005)

04/01/2005

920 Reserved for Court Use. PART 3 OF 3 (RF, Case Administrator) (Entered: 05/18/2005)

04/15/2005

913 ORDER granting 846 Motion for Leave to Appear pro hac vice Jack T. Riley.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 04/15/2005)

05/18/2005

917 ORDER SEALING RECORD granting 914 Motion to seal exhibits . Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 05/18/2005)

06/03/2005

921 MOTION to Take Deposition of William Wangler and Mark Watson in further Support of Their Motion for Sanctions by all plaintiffs. (Foster, Howard) (Entered: 06/03/2005)

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06/03/2005

922 MEMORANDUM re 714 First MOTION for Sanctions, 921 MOTION to Take Deposition of William Wangler and Mark Watson in further Support of Their Motion for Sanctions by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Declaration# 3 Text of Proposed Order)(Foster, Howard) (Entered: 06/03/2005)

06/03/2005

923 NOTICE of Hearing on Motion re 921 MOTION to Take Deposition of William Wangler and Mark Watson in further Support of Their Motion for Sanctions: Motion Hearing set for 7/7/2005 at 06:30 PM Spokane for 921, before Chief Judge Fred Van Sickle (Foster, Howard) (Entered: 06/03/2005)

06/06/2005

924 TEXTORDER: The motion to file reply affidavit under seal 749 is granted. . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 06/06/2005)

06/20/2005

925 ORDER granting in part to the extent indicated 816 Motion in Limine; granting in part to the extent indicated 818 Motion in Limine; granting in part to the extent indicated 820 Motion in Limine; granting in part to the extent indicated 822 Motion in Limine; granting in part to the extent indicated 860 Motion in Limine . Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 06/20/2005)

06/20/2005

926 ORDER denying 663 Plaintiffs' Motion to Remedy the Zirkle Defendants' Evident Opt-Out Campaign . Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 06/20/2005)

06/20/2005

927 ORDER granting in part and denying in part 828 Zirkle Defendants' Motion in Limine . Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 06/20/2005)

06/20/2005

928 ORDER denying except as indicated 714 Motion for Sanctions; denying except as indicated 811 Motion for Sanctions; denying except as indicated 921 Motion to Take Deposition of William Wangler and Mark Watson. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 06/20/2005)

06/20/2005

929 NOTICE OF WITHDRAWAL OF COUNSEL on behalf of Defendant Zirkle Fruit Co. Attorney Walter G Meyer, Jr terminated. (RF, Case Administrator) (Entered: 06/20/2005)

08/22/2005

930 MOTION for Leave to File Excess Pages Re: Mot to Adopt Proposed Jury Instructions by all plaintiffs. (Foster, Howard) (Entered: 08/22/2005)

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08/22/2005

931 NOTICE of Hearing on Motion re 930 MOTION for Leave to File Excess Pages Re: Mot to Adopt Proposed Jury Instructions: Motion Hearing set for 9/23/2005 at 06:30 PM Without Oral Argument for 930, before Judge Fred Van Sickle (Foster, Howard) (Entered: 08/22/2005)

08/22/2005

932 MOTION approve jury instructions by all plaintiffs. (Foster, Howard) (Entered: 08/22/2005)

08/22/2005

933 NOTICE of Hearing on Motion re 930 MOTION for Leave to File Excess Pages Re: Mot to Adopt Proposed Jury Instructions, 932 MOTION approve jury instructions: Motion Hearing set for 9/23/2005 at 06:30 PM Without Oral Argument for 930 and for 932, before Judge Fred Van Sickle (Foster, Howard) (Entered: 08/22/2005)

08/22/2005

934 BRIEF re 932 MOTION approve jury instructions, 933 Notice of Hearing on Motion, by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Affidavit /declaration)(Foster, Howard) (Entered: 08/22/2005)

08/23/2005

935 TEXT ORDER: (no pdf attached) The "Plaintiffs' Motion for Leave to File Oversize Brief" (Ct. Rec. 930) is granted. The defendants may file an overlength response.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 08/23/2005)

09/02/2005

936 RESPONSE to Motion re 932 MOTION approve jury instructions OBJECTION filed by Selective Employment Agency Inc. (Attachments: # 1 Exhibit A&B)(Monahan, Brendan) (Entered: 09/02/2005)

09/06/2005

937 MOTION for Extension of Time to File Response/Reply as to 932 MOTION approve jury instructions by William - Zirkle, Gary Hudson, William - Wangler. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants' Motion for Extension of Time)(Edgley, Ryan) (Entered: 09/06/2005)

09/06/2005

938 NOTICE of Hearing on Motion re 937 MOTION for Extension of Time to File Response/Reply as to 932 MOTION approve jury instructions: Motion Hearing set for 9/23/2005 at 06:30 PM Without Oral Argument for 937, before Judge Fred Van Sickle (Edgley, Ryan) (Entered: 09/06/2005)

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09/07/2005

939 PROOF OF SERVICE by William - Zirkle, Gary Hudson, William Wangler re 937 MOTION for Extension of Time to File Response/ Reply as to 932 MOTION approve jury instructions, 938 Notice of Hearing on Motion, (Edgley, Ryan) (Entered: 09/07/2005)

09/09/2005

940 RESPONSE to Motion re 932 MOTION approve jury instructions filed by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 09/09/2005)

09/09/2005

941 RESPONSE to Motion re 932 MOTION approve jury instructions Concerning Spoliation filed by William - Zirkle, Gary Hudson, William - Wangler. (Attachments: # 1)(Watson, Mark) (Entered: 09/09/2005)

09/09/2005

942 AFFIDAVIT by Mark D. Watson in Opposition re 932 MOTION approve jury instructions Concerning Spoliation filed by William Zirkle, William - Wangler. (Watson, Mark) (Entered: 09/09/2005)

09/14/2005

943 TEXT ORDER granting 937 Motion for Extension of Time to File Response/Reply . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 09/14/2005)

09/14/2005

944 AMENDED SCHEDULING ORDER: Pretrial Conference set for 12/14/2005 09:00 AM in Yakima before Judge Fred Van Sickle. Jury Trial set for 1/9/2006 09:30 AM in Yakima before Judge Fred Van Sickle.. Signed by Judge Fred Van Sickle. (VR, Case Administrator) (Entered: 09/14/2005)

09/14/2005

945 Non-Compliance Notice To Jack T. Riley dated 9/14/05 - Electronic Filing and Service Required (VR, Case Administrator) (Entered: 09/14/2005)

09/14/2005

946 Non-Compliance Notice To Michael V. Connell dated 9/14/05 Electronic Filing and Service Required (VR, Case Administrator) (Entered: 09/14/2005)

09/15/2005

947 MOTION to Withdraw 931 Notice of Hearing on Motion,, 932 MOTION approve jury instructions, 933 Notice of Hearing on Motion,, 934 Brief by all plaintiffs. (Attachments: # 1 Text of Proposed Order) (Foster, Howard) (Entered: 09/15/2005)

09/15/2005

948 NOTICE of Hearing on Motion re 947 MOTION to Withdraw 931 Notice of Hearing on Motion,, 932 MOTION approve jury instructions, 933 Notice of Hearing on Motion,, 934 Brief: Motion Hearing set for 10/17/2005 at 06:30 PM Without Oral Argument for 947, before Judge Fred Van Sickle (Foster, Howard) (Entered: 09/15/2005)

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10/11/2005

949 ORDER withdrawing 932 Motion to Adopt Their Proposed Jury Instructions, granting 947 Motion to Withdraw Proposed Jury Instructions. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 10/11/2005)

10/13/2005

950 NOTICE BY CLERK: Attorney Jack T. Riley is now registered for electronic filing and noticing. THIS IS A TEXT-ONLY NOTICE - NO PDF WILL ISSUE (VH, Intake Clerk) (Entered: 10/20/2005)

10/27/2005

951 TEXT ORDER: no pdf attached -- The deadline for filing (1) a proposed pretrial order and (2) a report identifying any issue the Court will need to resolve at the pretrial conference is extended from October 31st until November 7th.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 10/27/2005)

10/27/2005

952 PRELIMINARY ORDER RE: EXHIBITS. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 10/27/2005)

10/28/2005

953 MOTION for Extension of Time to File Trial Memoranda, Proposed Voir Dire and Proposed Jury Instructions by all parties. (Watson, Mark) (Entered: 10/28/2005)

10/28/2005

954 NOTICE of Hearing on Motion re 953 MOTION for Extension of Time to File Trial Memoranda, Proposed Voir Dire and Proposed Jury Instructions: Motion Hearing set for 10/31/2005 at 06:30 PM Without Oral Argument for 953, before Judge Fred Van Sickle (Watson, Mark) (Entered: 10/28/2005)

10/28/2005

955 TEXT ORDER -- no pdf attached 953 Stipulated Motion for Extension of Time to File is granted.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 10/28/2005)

10/28/2005

956 NOTICE BY CLERK: Attorney Michael V. Connell is now registered for electronic filing and noticing. THIS IS A TEXT-ONLY NOTICE NO PDF WILL ISSUE (VH, Intake Clerk) (Entered: 10/31/2005)

10/31/2005

957 ORDER re 829 Objections 895 Objections 837 Objections are all OVERRULED. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 10/31/2005)

10/31/2005

958 ORDER Jury Trial set for 1/9/2006 at 9:30 AM in Yakima before Judge Fred Van Sickle. Pretrial Conference set for 12/14/2005 at 9:00 AM in Yakima before Judge Fred Van Sickle. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 10/31/2005)

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11/01/2005

959 AMENDED ORDER re 957 Order RE: Objections. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 11/01/2005)

11/02/2005

960 Defendants' Proposed Voir Dire by William - Zirkle, William Wangler, Zirkle Fruit Co. (Rettig, Diehl) (Entered: 11/02/2005)

11/07/2005

961 Proposed Jury Instructions submitted by Olivia Mendoza. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit Proposed Order)(Foster, Howard) (Entered: 11/07/2005)

11/07/2005

962 Proposed Voir Dire by Olivia Mendoza. (Attachments: # 1 Text of Proposed Order Proposed Order)(Foster, Howard) (Entered: 11/07/2005)

11/07/2005

963 TRIAL BRIEF Plaintiffs' Trial Brief by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 11/07/2005)

11/07/2005

964 MOTION for Leave to File Excess Pages In Plaintiffs' Trial Brief by all plaintiffs. (Attachments: # 1)(Volk, Andrew) (Entered: 11/07/2005)

11/07/2005

965 NOTICE of Hearing on Motion re 964 MOTION for Leave to File Excess Pages In Plaintiffs' Trial Brief: Motion Hearing set for 12/9/2005 at 06:30 PM Without Oral Argument for 964, before Judge Fred Van Sickle (Volk, Andrew) (Entered: 11/07/2005)

11/07/2005

966 Proposed Jury Instructions submitted by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 11/07/2005)

11/07/2005

967 TRIAL BRIEF by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/07/2005)

11/07/2005

968 Proposed Voir Dire by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/07/2005)

11/07/2005

969 Proposed Jury Instructions submitted by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/07/2005)

11/07/2005

970 TRIAL BRIEF by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 11/07/2005)

11/08/2005

971 TEXT ORDER (no pdf attached) granting 964 Motion for Leave to File Excess Pages . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 11/08/2005)

11/09/2005

972 MOTION for Leave to File Excess Pages re Trial Brief by William Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 11/09/2005)

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11/09/2005

973 Praecipe filed by William - Zirkle, Gary Hudson, William - Wangler: Re 972 MOTION for Leave to File Excess Pages re Trial Brief [Proposed Order]. (Edgley, Ryan) (Entered: 11/09/2005)

11/09/2005

974 NOTICE of Hearing on Motion re 972 MOTION for Leave to File Excess Pages re Trial Brief: Motion Hearing set for 12/9/2005 at 06:30 PM Without Oral Argument for 972, before Judge Fred Van Sickle (Edgley, Ryan) (Entered: 11/09/2005)

11/10/2005

975 MOTION for Hearing re 952 Order For Court to Address Issues
Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference by William Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

976 MEMORANDUM in Support re 975 MOTION for Hearing re 952
Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

977 AFFIDAVIT by Phil Hull in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

978 AFFIDAVIT by Mark Watson in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference regarding disclosure of wage data filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

979 AFFIDAVIT by Gary Hudson in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

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11/10/2005

980 AFFIDAVIT by Toni Jenft in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

981 AFFIDAVIT by Lavonne Josey in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

982 AFFIDAVIT by Cindy Maley in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

983 NOTICE of Hearing on Motion Oral Argument Requested re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference: Motion Hearing set for 12/14/2005 at 09:00 AM Yakima for 975, before Judge Fred Van Sickle (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

984 MOTION for Leave to File Excess Pages by William - Zirkle, William Wangler, Zirkle Fruit Co. (Attachments: # 1)(Watson, Mark) (Entered: 11/10/2005)

11/10/2005

985 MEMORANDUM in Support re 975 MOTION for Hearing re 952
Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/10/2005)

11/10/2005

986 NOTICE of Hearing on Motion re 984 MOTION for Leave to File Excess Pages: Motion Hearing set for 12/14/2005 at 06:30 PM Without Oral Argument for 984, before Judge Fred Van Sickle (Watson, Mark) (Entered: 11/10/2005)

11/14/2005

987 OBJECTIONS to Defendants' Proposed Jury Instructions and Special Interrogatories by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A - June 20, 2005 order# 2 Exhibit B -
October 27, 2005 order)(Foster, Howard) (Entered: 11/14/2005)

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11/14/2005

988 OBJECTIONS re 968 Proposed Voir Dire, 960 Proposed Voir Dire
Plaintiffs' Objections to Defendants' Proposed Voir Dire Qusetions by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 11/14/2005)

11/14/2005

989 STATUS REPORT TO THE COURT CONCERNING USE OF DEPOSITIONS by William - Zirkle, Gary Hudson, William - Wangler, Olivia Mendoza, Juana Mendiola, Selective Employment Agency Inc, USA, Victor Sanchez. (Watson, Mark) (Entered: 11/14/2005)

11/14/2005

990 OBJECTIONS re 961 Proposed Jury Instructions by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 11/14/2005)

11/14/2005

991 OBJECTIONS (REVISED)TO PLAINTIFFS' DEPOSITION TESTIMONY AT TRIAL by William - Zirkle, William - Wangler. (Watson, Mark) (Entered: 11/14/2005)

11/14/2005

992 OBJECTIONS to Revised Deposition Designations And CrossDesignations of Zirkle Defendants by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 11/14/2005)

11/14/2005

993 OBJECTIONS TO PLAINTIFFS' AND SELECTIVE'S PROPOSED VOIR DIRE by William - Zirkle, William - Wangler. (Watson, Mark) (Entered: 11/14/2005)

11/14/2005

994 Objections to Plaintiffs' Proposed Voir Dire by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/14/2005)

11/14/2005

995 Proposed Jury Instructions Objections to Plaintiffs' Proposed Jury Instructions submitted by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/14/2005)

11/15/2005

996 MOTION for Reconsideration re 819 Notice of Hearing on Motion by all plaintiffs. (Foster, Howard) (Entered: 11/15/2005)

11/15/2005

997 NOTICE of Hearing on Motion Oral Argument Requested re 996 MOTION for Reconsideration re 819 Notice of Hearing on Motion: Motion Hearing set for 12/14/2005 at 09:00 AM Yakima for 996, before Judge Fred Van Sickle (Foster, Howard) (Entered: 11/15/2005)

11/15/2005

998 MOTION for Reconsideration re 819 Notice of Hearing on Motion by all plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order) (Foster, Howard) (Entered: 11/15/2005)

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11/15/2005

999 MEMORANDUM in Support re 998 MOTION for Reconsideration re 819 Notice of Hearing on Motion filed by Olivia Mendoza. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Foster, Howard) (Entered: 11/15/2005)

11/16/2005

1000 ORDER granting 972 Motion for Leave to File Excess Pages . Text-
only entry; no PDF document will issue. This text-only entry constitutes the court order or notice on the matter.Signed by Judge Fred Van Sickle. (CP, Courtroom Deputy) (Entered: 11/16/2005)

11/16/2005

1001 ORDER granting 984 Motion for Leave to File Excess Pages . Text-
only entry; no PDF document will issue. This text-only entry constitutes the court order or notice on the matter.Signed by Judge Fred Van Sickle. (CP, Courtroom Deputy) (Entered: 11/16/2005)

11/23/2005

1002 MEMORANDUM in Support re 975 MOTION for Hearing re 952
Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference regarding objections to Plaintiffs' Exhibit #50, supplemental filed by William - Zirkle, Gary Hudson, William Wangler, Zirkle Fruit Co. (Watson, Mark) (Entered: 11/23/2005)

11/23/2005

1003 RESPONSE re 995 Proposed Jury Instructions, 990 Objections, 961 Proposed Jury Instructions by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 11/23/2005)

11/23/2005

1004 RESPONSE re 994 Proposed Voir Dire, 993 Objections, 962 Proposed Voir Dire by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 11/23/2005)

11/23/2005

1005 RESPONSE to Motion re 975 MOTION for Hearing re 952 Order For
Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference Re Plaintiffs' Exhibits filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 11/23/2005)

11/23/2005

1006 RESPONSE to Motion re 975 MOTION for Hearing re 952 Order For
Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference Re Defendants' Exhibits filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 11/23/2005)

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11/28/2005

1007 RESPONSE re 991 Objections (Revised) To Plaintiffs' Deposition Testimony At Trial by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Volk, Andrew) (Entered: 11/28/2005)

11/28/2005

1008 RESPONSE TO OBJECTIONS TO ANTICIPATED DEPOSITION TESTIMONY by William - Zirkle, William - Wangler. (Watson, Mark) (Entered: 11/28/2005)

11/28/2005

1009 Joint MOTION for Extension of Time to File Pretrial Order and Statement of Issues to be Addressed at the Pretrial Conference by William - Zirkle. (Attachments: # 1 Text of Proposed Order [Proposed]
Order Granting Stipulated Joint Motion for Two-Day Extension of Time for Filing Pretrial Order)(Watson, Mark) (Entered: 11/28/2005)

11/28/2005

1010 NOTICE of Hearing on Motion re 1009 Joint MOTION for Extension of Time to File Pretrial Order and Statement of Issues to be Addressed at the Pretrial Conference: Motion Hearing set for 11/28/2005 at 06:30 PM Without Oral Argument for 1009, before Judge Fred Van Sickle (Watson, Mark) (Entered: 11/28/2005)

11/28/2005

1011 MEMORANDUM in Opposition re 996 MOTION for Reconsideration re 819 Notice of Hearing on Motion, 998 MOTION for Reconsideration re 819 Notice of Hearing on Motion filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 11/28/2005)

11/30/2005

1012 Proposed Pretrial Order (Amended) by William - Zirkle, Gary Hudson, William - Wangler, Olivia Mendoza, Juana Mendiola, Selective Employment Agency Inc, Victor Sanchez. (Attachments: # 1 Exhibit
Attachment re Exhibit Status)(Volk, Andrew) (Entered: 11/30/2005)

11/30/2005

1013 LR 26.1 / LR 16.1 Attorney Report Joint Report re Pretrial Conference by William - Zirkle, Gary Hudson, William - Wangler, Olivia Mendoza, Juana Mendiola, Selective Employment Agency Inc, Victor Sanchez. (Volk, Andrew) (Entered: 11/30/2005)

12/01/2005

1014 TEXT ORDER (no pdf attached) granting 1009 The parties' stipulated motion for a two-day extension (Ct. Rec. 1009) is granted. . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/01/2005)

12/01/2005

1015 REPLY MEMORANDUM re 975 MOTION for Hearing re 952 Order
For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference filed by William - Zirkle, William - Wangler. (Watson, Mark) (Entered: 12/01/2005)

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12/05/2005

1016 MEMORANDUM in Support re 998 MOTION for Reconsideration re 819 Notice of Hearing on Motion 6/20/05 order re: wage rates filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 12/05/2005)

12/05/2005

1017 MOTION for Limited Admission Pro Hac Vice of James Kevin Toohey by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 12/05/2005)

12/05/2005

1018 MEMORANDUM in Support re 1017 MOTION for Limited Admission Pro Hac Vice of James Kevin Toohey filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 12/05/2005)

12/05/2005

1019 NOTICE of Hearing on Motion re 1017 MOTION for Limited Admission Pro Hac Vice of James Kevin Toohey: Motion Hearing set for 1/5/2005 at 06:30 PM Without Oral Argument for 1017, before Judge Fred Van Sickle (Foster, Howard) (Entered: 12/05/2005)

12/07/2005

Payment Received: Receipt #SPO000770 in the amount of $100.00 from Johnson and Bell LTD re James Kevin Toohey. (VH, Intake Clerk) (Entered: 12/07/2005)

12/07/2005

1020 RESPONSE to Motion re 975 MOTION for Hearing re 952 Order For
Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference Plaintiffs' Response To Zirkle Defendants' Supplemental Memorandum Regarding Objections To Plaintiffs Exhibit # 50 filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1
Exhibit A)(Volk, Andrew) (Entered: 12/07/2005)

12/09/2005

1021 Praecipe filed by William - Zirkle, William - Wangler: Re 985
Memorandum in Support of Motion, adding Exhibit A which was inadvertently not attached to document #985. (Watson, Mark) (Entered: 12/09/2005)

12/09/2005

1022 NOTICE of Hearing - Text entry; no PDF document. - By Court: A telephonic status conference will be held on 12/13/2005 01:30 PM to discuss whether a magistrate judge could help determine whether this case can be resolved short of trial. The Court will initiate the call. No oral notice having been given, counsel may contact chambers if this schedule creates a hardship.(KJH, Judicial Assistant) (Entered: 12/09/2005)

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12/09/2005

1023 AMENDED NOTICE of Hearing - Text entry; no PDF document. - By Court: A telephonic status conference will be held on 12/12/2005 01:15 PM to discuss whether a magistrate judge could help determine whether this case can be resolved short of trial. The Court will initiate the call. No oral notice having been given, counsel may contact chambers if this schedule creates a hardship. (MOVED FROM 12/13/05)(KJH, Judicial Assistant) (Entered: 12/09/2005)

12/09/2005

1024 RESPONSE to Motion re 998 MOTION for Reconsideration re 819 Notice of Hearing on Motion filed by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 12/09/2005)

12/09/2005

1025 RESPONSE re 966 Proposed Jury Instructions, 987 Objections,
response to plaintiffs' objections to defendants' proposed jury instructions by William - Zirkle, Gary Hudson, William - Wangler. (Edgley, Ryan) (Entered: 12/09/2005)

12/09/2005

1026 REPLY MEMORANDUM re 975 MOTION for Hearing re 952 Order
For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference Concerning Objections to Exhibit 50 filed by William Zirkle, William - Wangler. (Watson, Mark) (Entered: 12/09/2005)

12/09/2005

1027 AFFIDAVIT by Mark D. Watson in Support re 975 MOTION for Hearing re 952 Order For Court to Address Issues Relating to Exhibits and Foundation Issues or in the Alternative for Reconsideration to be heard at Pre-Trial Conference Re: Exhibit 50 filed by William - Zirkle, Zirkle Fruit Co. (Watson, Mark) (Entered: 12/09/2005)

12/12/2005

1028 Minute Entry for TELEPHONIC proceedings held before Judge Fred Van Sickle : Status Conference held on 12/12/2005. (Reported by: Mark Snover) (CP, Courtroom Deputy) (Entered: 12/12/2005)

12/12/2005

1029 Proposed Jury Instructions Supplemental submitted by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A Proposed Jury Instruction)(Volk, Andrew) (Entered: 12/12/2005)

12/13/2005

1030 REPLY MEMORANDUM re 998 MOTION for Reconsideration re 819 Notice of Hearing on Motion Revised Reply Reconsider Court's In Limine Order on Wage Data filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A)(Foster, Howard) (Entered: 12/13/2005)

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12/14/2005

1031 Minute Entry for proceedings held before Judge Fred Van Sickle : Pretrial Conference/Motion Hearing held on 12/14/2005. (Reported by: Mark Snover) (CP, Courtroom Deputy) (Entered: 12/15/2005)

12/15/2005

1032 TEXT ORDER: (no pdf) The parties are directed to submit a revised pretrial order, together with a revised attachment concerning exhibits, that incorporates the Court's rulings of December 14, 2005.. Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/15/2005)

12/15/2005

1033 TEXT ORDER (no pdf) granting 1017 Motion for Limited Admission.
Added Attorney James Kevin Toohey for Olivia Mendoza and Juana Mendiola . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 12/15/2005)

12/15/2005

1034 ORDER REFERRING CASE to Magistrate Judge - for Settlement Conference Michael W. Leavitt. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 12/15/2005)

12/16/2005

1035 REPORTER'S TRANSCRIPT: Proceedings held on 12/14/05 in Yakima, WA before Judge Van Sickle. Type of proceeding(s): Pretrial Conference. Court Reporter: Mark Snover. Transcript is available in paper format in the Clerk's Office. (RF, Case Administrator) (Entered: 12/16/2005)

12/16/2005

1036 Minute Entry for TELEPHONIC proceedings held before Judge Michael W. Leavitt : Scheduling Conference held on 12/16/2005. (KRR, Judicial Assistant) (Entered: 12/16/2005)

12/16/2005

1037 ORDER SETTING SETTLEMENT CONFERENCE; attorneys tos ubmit in camera letter, labeled confidential, not to be filed, to Magistrate Judge Michael Leavitt by 12/23/05; Settlement Conference set for 12/28/2005 08:30 AM in Yakima before Magistrate Judge Michael W. Leavitt. Signed by Judge Michael W. Leavitt. (LE, Case Administrator) (Entered: 12/16/2005)

12/19/2005

1038 MEMORANDUM (Supplemental) Regarding Plaintiffs' Exhibit Nos. 31, 32, 64 and Zirkle Defendants' Exhibit No. 365 by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Volk, Andrew) (Entered: 12/19/2005)

12/19/2005

1039 MOTION to Expedite by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/19/2005)

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12/19/2005

1040 NOTICE of Hearing on Motion re 1039 MOTION to Expedite: Motion Hearing set for 12/30/2005 at 06:30 PM Without Oral Argument for 1039, before Judge Fred Van Sickle (Monahan, Brendan) (Entered: 12/19/2005)

12/19/2005

1041 MOTION for Reconsideration by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/19/2005)

12/19/2005

1042 MEMORANDUM in Support re 1041 MOTION for Reconsideration filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/19/2005)

12/19/2005

1043 DECLARATION by Brendan V. Monahan in Support re 1041 MOTION for Reconsideration filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/19/2005)

12/19/2005

1044 NOTICE of Hearing on Motion re 1041 MOTION for Reconsideration: Motion Hearing set for 12/30/2005 at 06:30 PM Without Oral Argument for 1041, before Judge Fred Van Sickle (Monahan, Brendan) (Entered: 12/19/2005)

12/21/2005

1045 Exhibit List by Olivia Mendoza. (Foster, Howard) (Entered: 12/21/2005)

12/22/2005

1046 BRIEF Regarding "Reputation" Evidence by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/22/2005)

12/22/2005

1047 DECLARATION by Brendan Monahan In Support of Pocket Brief by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/22/2005)

12/23/2005

1048 MOTION to Expedite Hearing by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/23/2005)

12/23/2005

1049 NOTICE of Hearing on Motion re 1048 MOTION to Expedite Hearing: Motion Hearing set for 12/30/2005 at 06:30 PM Without Oral Argument for 1048, before Judge Fred Van Sickle (Monahan, Brendan) (Entered: 12/23/2005)

12/23/2005

1050 MOTION to Stay Proceedings As to Selective Employment by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/23/2005)

12/23/2005

1051 MEMORANDUM in Support re 1050 MOTION to Stay Proceedings As to Selective Employment filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/23/2005)

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12/23/2005

1052 DECLARATION by Brendan Monahan in Support re 1050 MOTION to Stay Proceedings As to Selective Employment, 1048 MOTION to Expedite Hearing filed by Selective Employment Agency Inc. (Monahan, Brendan) (Entered: 12/23/2005)

12/23/2005

1053 NOTICE of Hearing on Motion re 1050 MOTION to Stay Proceedings As to Selective Employment: Motion Hearing set for 12/30/2005 at 06:30 PM Without Oral Argument for 1050, before Judge Fred Van Sickle (Monahan, Brendan) (Entered: 12/23/2005)

12/27/2005

1054 MEMORANDUM in Opposition re 1041 MOTION for Reconsideration filed by Olivia Mendoza. (Foster, Howard) (Entered: 12/27/2005)

12/28/2005

1057 Minute Entry for proceedings held before Judge Michael W. Leavitt: Settlement Conference held on 12/28/2005. (Reported/Recorded by: Lynette Walters) (AG, Courtroom Deputy) (Entered: 12/29/2005)

12/29/2005

1055 ORDER CLOSING FILE. Case settled. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 12/29/2005)

12/29/2005

1056 Reserved for Court Use. (RF, Case Administrator) (Entered: 12/29/2005)

01/09/2006

1058 NOTICE of Change of Address by Howard W Foster (Foster, Howard) (Entered: 01/09/2006)

01/13/2006

1059 MOTION for Settlement -- Preliminary Approval of Proposed Class Action Settlement by all plaintiffs. (Volk, Andrew) (Entered: 01/13/2006)

01/13/2006

1060 NOTICE of Hearing on Motion Oral Argument Requested re 1059 MOTION for Settlement -- Preliminary Approval of Proposed Class Action Settlement: Motion Hearing set for 1/20/2006 at 09:00 AM Telephonic Argument for 1059, before Judge Fred Van Sickle (Volk, Andrew) (Entered: 01/13/2006)

01/13/2006

1061 MEMORANDUM in Support re 1059 MOTION for Settlement -Preliminary Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A (Claim Form)# 2 Exhibit B (Mailed Notice)# 3 Exhibit C Publication Notice)(Volk, Andrew) (Entered: 01/13/2006)

01/13/2006

1062 SETTLEMENT AGREEMENT by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Volk, Andrew) (Entered: 01/13/2006)

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01/17/2006

1063 ORDER DIRECTING CLOSING OF FILE. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 01/17/2006)

01/20/2006

1064 ORDER PRELIMINARILY APPROVING SETTLEMENT, APPROVING FORM AND MANNER OF NOTICE, AND SCHEDULING HEARING ON FAIRNESS OF SETTLEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(E) granting 1059 Motion for Settlement. Fairness hearing set 5/11/06 at
1:30 before Judge Van Sickle in Yakima, WA. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 01/20/2006)

01/20/2006

1065 Minute Entry for TELEPHONIC proceedings held before Judge Fred Van Sickle : In Court Telephonic Hearing held on 1/20/2006. (Reported by: Mark Snover) (CP, Courtroom Deputy) (Entered: 01/23/2006)

05/04/2006

1066 MOTION for Settlement Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Text of Proposed Order Proposed
Order of Final Judgment and Dismissal)(Volk, Andrew) (Entered: 05/04/2006)

05/04/2006

1067 NOTICE of Hearing on Motion Oral Argument Requested re 1066 MOTION for Settlement Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement: Motion Hearing set for 5/11/2006 at 01:30 PM Yakima for 1066, before Judge Fred Van Sickle (Volk, Andrew) (Entered: 05/04/2006)

05/04/2006

1068 MEMORANDUM in Support re 1066 MOTION for Settlement
Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 05/04/2006)

05/04/2006

1069 DECLARATION by Andrew M. Volk in Support re 1066 MOTION for Settlement Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Exhibit A - Class Action Settlement# 2 Exhibit B - Notice and Claim Form# 3 Exhibit C - Published Notices and Affidavits of Publication# 4 Exhibit D - Payroll data# 5 Exhibit E Wage Estimates)(Volk, Andrew) (Entered: 05/04/2006)

05/04/2006

1070 DECLARATION by Howard W. Foster in Support re 1066 MOTION
for Settlement Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 05/04/2006)

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05/04/2006

1071 DECLARATION by Michael V. Connell in Support re 1066 MOTION
for Settlement Plaintiffs' Motion for Final Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Volk, Andrew) (Entered: 05/04/2006)

05/08/2006

1072 Letter from Annette Ruiz to Judge Van Sickle dated 2/14/06 (RF, Case Administrator) (Entered: 05/08/2006)

05/08/2006

1073 Letter from Annette Ruiz to Judge Van Sickle dated 3/8/06 (RF, Case Administrator) (Entered: 05/08/2006)

05/11/2006

1074 Minute Entry for proceedings held before Judge Fred Van Sickle : Motion Hearing held on 5/11/2006 re 1066 MOTION for Final
Approval of Proposed Class Action Settlement filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Reported by: Mark Snover) (CP, Courtroom Deputy) (Entered: 05/12/2006)

05/17/2006

1075 TEXT ORDER (no pdf attached) granting 1066 Motion for Settlement . Signed by Judge Fred Van Sickle. (KJH, Judicial Assistant) (Entered: 05/17/2006)

05/17/2006

1077 ORDER OF FINAL JUDGMENT AND DISMISSAL. Signed by Judge Fred Van Sickle. (RF, Case Administrator) (Entered: 05/18/2006)

05/18/2006

1076 NOTICE OF ELECTRONIC FILING DELIVERY FAILURE. The Clerk's Office has received an undeliverable Notice of Electronic Filing for the following attorney - Alexander Baehr - at this email address alexander.baehr@hklaw.com - on May 17, 2006 ; The Clerk's Office has been informed that this attorney is no longer with the firm of Holland & Knight. Electronic Noticing is no longer available for this attorney. (LAM, ) (Entered: 05/18/2006)

05/24/2006

1078 DECLARATION of Child Support Program Administrator by Department of Social and Health Services. (Attachments: # 1 Letter) (RF, Case Administrator) (Entered: 05/24/2006)

09/01/2006

1079 MOTION declare opt outs have no right to opt back into class by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Attachments: # 1 Text of Proposed Order)(Foster, Howard) (Entered: 09/01/2006)

09/01/2006

1080 NOTICE of Hearing on Motion re 1079 MOTION declare opt outs have no right to opt back into class: Motion Hearing set for 10/2/2006 at 06:30 PM for 1079, before Judge Fred Van Sickle (Foster, Howard) (Entered: 09/01/2006)

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09/01/2006

1081 MEMORANDUM in Support re 1079 MOTION declare opt outs have no right to opt back into class filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 09/01/2006)

09/08/2006

1082 Letter from Zirkle Employees to Judge Van Sickle dated Received 9/8/06 (RF, Case Administrator) (Entered: 09/08/2006)

09/18/2006

1083 REPLY MEMORANDUM re 1079 MOTION declare opt outs have no right to opt back into class filed by Olivia Mendoza, Juana Mendiola, Victor Sanchez. (Foster, Howard) (Entered: 09/18/2006)

11/17/2006

1084 ORDER granting 1079 Plaintiffs' Motion to Declare Opt Outs Have No right to Opt Back into the Class. Signed by Judge Fred Van Sickle. (VR, Case Administrator) (Entered: 11/17/2006)

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 </s> 301 F.3d 1163 (2002)
Olivia MENDOZA, individually and on behalf of all others similarly situated; Juana Mendiola, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v. ZIRKLE FRUIT CO., a Washington corporation; Matson Fruit Company, a Washington corporation; Selective Employment Agency, Inc., a Washington corporation, Defendants-
Appellees.
No. 01-35276.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 2002. Filed September 3, 2002.
11645 *1164 *1165 Steve W. Berman & Andrew M. Volk, Hagens Berman LLP, Seattle, WA, and Howard W. Foster, Johnson & Bell, Ltd., Chicago, IL, for the appellants.
Irwin Schwartz, Law Offices of Irwin Schwartz, Seattle, WA, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, Walter G. Meyer, Meyer, Fluegge & Tenney, P.S., Yakima, WA, Terry Schmalz, Halverson & Applegate, P.S., Yakima, WA, for appellees Zirkle Fruit Co. and Matson Fruit Co.
J. Jay Carroll, Brendan Victor Monahan, Velikanje, Moore & Shore, P.S., Yakima, WA, for appellee Selective Employment Agency, Inc.
Before: BRUNETTI, TROTT, and McKEOWN, Circuit Judges.
1166 *1166 McKEOWN, Circuit Judge.
This case arises from claims that two agricultural companies leveraged the hiring of undocumented immigrants in order to depress the wages of their legally documented employees. We are called upon to decide two significant issues. First, we must determine whether, under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, legally documented agricultural workers have standing to sue their employers, whom they allege depressed their salaries by conspiring to hire undocumented workers at below market wages. Second, we must consider the constitutionality of supplemental subject matter jurisdiction involving a party over whom there is no independent basis for federal court jurisdiction. The district court resolved both questions in favor of the defendants and dismissed this lawsuit on the pleadings. We reverse.
BACKGROUND
Olivia Mendoza, Juana Mendiola, and the purported class ("employees") are agricultural laborers for Zirkle Fruit Company and Matson Fruit Company ("growers"), which operate fruit orchards and packing houses in Eastern Washington, the heart of Washington's fruit industry. According to the complaint,[1] the employees are "persons legally authorized to be employed in the United States." They worked for the growers "at wages that are substantially depressed because of the Illegal Immigrant Hiring Scheme." Pursuant to the scheme, Zirkle and Matson "knowingly hire workers of illegal status because the illegal workers are willing to accept wages that are significantly lower than wages would be in a labor market comprised solely of legally authorized workers." They do so "for the purpose of depressing employee wages below the levels they would otherwise be required to pay if they were unable to hire substantial numbers of illegal immigrants who, due to their economic situation and fear of asserting their rights due to their illegal status, can be easily exploited and who are therefore willing to work for depressed wages." The complaint provides substantial background and detail about the scope of the challenged scheme:

Eastern Washington is the heart of Washington's famed apple and fruit industry. This area ... is uniquely suited for growing fruit....

In Washington state there are more than 15,000 fruit packers and 30,000 orchard pickers of fruit. Many operations require unskilled, low-wage laborers for harvesting and packing and other related tasks requiring manual labor. While the industry now generates over $1 billion, many of these workers live in poverty.

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Defendants Matson and Zirkle operate fruit orchards and packing houses. Matson and Zirkle are motivated to keep labor costs as low as possible and, due to a variety of complex social and economic factors, the industry's demand for low-skilled workers has attracted many workers of Mexican citizenship. Many of these Mexican nationals are illegal immigrants who have been smuggled into the U.S. and/or harbored in the U.S. by relatives, friends, and the employers. Matson and Zirkle ... knowingly hire workers of illegal status because illegal workers are willing to accept wages that are significantly lower *1167 than wages would be in a labor market comprised solely of legally authorized workers.

The Immigration and Naturalization Service has conducted investigations finding that as much as half the growers' workforce is employed illegally, and the growers have been targeted for "raids and other law enforcement procedures."

According to the complaint, the scheme is facilitated by Selective Employment Agency, Inc., a separate company that employs the workers and then "loans" them to the growers. "Defendants Matson and Zirkle use Selective Employment as a `front company' for the purpose of perpetrating this scheme with the hope that each will be thus shielded from charges that they violated federal law." Although Selective Employment was named only as an association-in-fact enterprise, not as a defendant, in the federal RICO claim, the complaint alleged a state conspiracy claim that did name Selective Employment as a defendant.

The district court dismissed the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[2] Although the district court held that the employees pled a direct injury because there was no intervening third party from whom their injury was derived, the court dismissed the complaint on grounds that the damages were too speculative and difficult to ascertain.[3]

The employees moved for reconsideration, proffering a proposed amended complaint that alleged a conspiracy broader than the named growers and included more specific causation allegations. The amended complaint states that the growers and unnamed conspirators "comprise a large percentage of the fruit orchards and packing houses in the area, and therefore affect wages throughout the labor market for apple pickers and fruit packers, [such that] competition with respect to wages is stifled and suppressed." The proffered complaint also adds six paragraphs explaining how the scheme injures the workers. Nonetheless, the district court denied the motion, clarifying that it was not dismissing merely for difficulty of proof, but for lack of concrete injury and proximate causation.

In addition, the district court, quite reluctantly, granted Selective Employment's motion to dismiss pursuant to Rule 12(b)(1). The district court determined that it was bound by Ayala v. United States, 550 F.2d 1196 (9th Cir.1977), cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), which it characterized as holding pendent-party jurisdiction unconstitutional.

DISCUSSION

We note at the outset that the district court dismissed this case on the pleadings. Consequently, our review is de novo, and we may affirm the dismissal "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 1168 152 L.Ed.2d 1 (2002) (quoting Hishon v. King & Spalding, *1168 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In the RICO context, "[a]t the pleading stage, general factual allegations of injury resulting from the

defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." NOW v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
The district court offered two bases for dismissal on the pleadings: RICO standing and supplemental jurisdiction. We discuss those issues below, but first we address one proffered alternative ground for affirming the dismissal for failure to state a claim, an argument that need not detain us long. RICO prohibits engaging in a pattern of "racketeering activity," defined as violating certain laws; as such, a predicate illegal act must be alleged. 18 U.S.C. §§ 1962(c), 1961(1)(F). The district court held that the "Illegal Immigrant Hiring Scheme" as pleaded involved a predicate RICO act, knowingly hiring undocumented workers in violation of Immigration and Naturalization Act § 274, 8 U.S.C. § 1324. We are unpersuaded by the growers' argument that the district court erred in this respect. Their argument rests on a hypertechnical reading of the complaint inconsistent with the generous notice pleading standard. See Swierkiewicz, 122 S.Ct. at 999. The complaint alleges that the defendants had knowledge of illegal harboring "and/or" smuggling. Even if knowledge of smuggling were required by the statute, an issue about which we express no opinion, the complaint easily contains this allegation. We affirm the district court's analysis and reasoning on this issue, and turn to standing and supplemental jurisdiction.
I. STANDING
A. STATUTORY STANDING
We turn first to the statutory standing requirements particular to RICO. Under RICO, "[a]ny 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" for civil damages. 18 U.S.C. § 1964(c). This statute is quite similar to the antitrust statute granting standing to "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws," 15 U.S.C. § 15(a), and consequently the two have been interpreted in tandem. Holmes v. Sec. Inv. Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). The employees allege an injury to their property in the form of lost wages.[4] The key task is to determine whether this injury was "by reason of" the growers' alleged violations, a requirement the Supreme Court has interpreted to encompass proximate as well as factual causation.
In a series of cases beginning in the antitrust context and later extended to RICO, the Supreme Court clarified 1169 that potential plaintiffs who have suffered *1169 "passed-on" injury 0907 that is, injury derived from a third party's
direct injury 0907 lack statutory standing. Ill. Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); Assoc. Gen'l Contractors v. Calif. State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); Holmes, 503 U.S. at 268. Illinois Brick held that government consumers could not sue on a theory that high prices were passed on to them as a result of the defendants' illegal price-fixing scheme. 431 U.S. at 736. Similarly, in Associated General Contractors, unions lacked standing to sue a contractors' association for an illegal conspiracy to use nonunion subcontractors because such a conspiracy would directly victimize the union subcontractors, not the unions. 459 U.S. at 520-21. Holmes extended the requirement to RICO; nonpurchasing customers, forced to cover costs when brokers became insolvent as a result of an illegal stock manipulation scheme, could not sue for this derivative harm. 503 U.S. at 268.
In this circuit, we focus on three nonexhaustive factors in considering causation, that is whether the injury is "too remote" to allow recovery:
(1) whether there are more direct victims of the alleged wrongful conduct who can be counted on to vindicate the law as private attorneys general; (2) whether it will be difficult to ascertain the amount of the plaintiff's damages attributable to defendant's wrongful conduct; and (3) whether the courts will have to adopt complicated rules apportioning damages to obviate the risk of multiple recoveries.

Ass'n of Wash. Pub. Hosp. Dists. v. Philip Morris Inc., 241 F.3d 696, 701 (9th Cir.) (quoting Oregon Laborers 0907 Employers Health & Welfare Trust Fund v. Philip Morris, Inc., 185 F.3d 957, 963 (9th Cir.1999)), cert. denied, ___ U.S. ___, 122 S.Ct. 207, 151 L.Ed.2d 147 (2001) ("Wash.Pub.Hosp."). At this stage of the proceedings, we cannot say that there is "no set of facts that could be proved," to satisfy these requirements. Swierkiewicz, 122 S.Ct. at 998.
Our analysis is guided by two key cases, both decided after the district court's original opinion. See Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 987 (9th Cir.2000); Commercial Cleaning Servs. v. Colin Serv. Sys., Inc., 271 F.3d 374, 378 (2d Cir.2001).
The relationships among the parties in this case bear a striking resemblance to those in Knevelbaard Dairies, an antitrust case in which we recently held that the plaintiffs had standing. There, milk producers sued defendant cheese producers, who illegally fixed the price of cheese, which in turn set the price of milk artificially low. 232 F.3d at 989. Applying classic antitrust standing principles, we looked "to the chain of causation between [plaintiff's] injury and the alleged restraint in the market." Id. at 989 (quoting Am. Ad Mgmt. Inc. v. General Tel. Co., 190 F.3d 1051, 1058 (9th Cir.1999)). We concluded that the milk producers' injury was sufficiently direct. Their allegations that they would "receive[] less for milk than they otherwise would have received in the absence of the defendants' unlawful conduct" were "disputed claims of causation and injury [that] cannot be decided on a Rule 12(b)(6) motion." Id. at 989. The employees here, like the milk producers in Knevelbaard Dairies, claim a direct market injury as a result of the alleged illegal hiring scheme (or in the case of Knevelbaard Dairies, as a result of the price fixing in the cheese market). In fact, the causation allegations here are more direct than Knevelbaard Dairies, as the employees allege a direct impact on the labor market, not the more attenuated claim 1170 of *1170 an impact on the cheese market, which in turn affected the milk prices.
The Second Circuit, the only circuit to have considered allegations of illegal immigrant hiring based on the same predicate act as that at issue here, held that the plaintiffs had standing to sue under RICO. In Commercial Cleaning, a competitor alleged that the defendant janitorial service underbid it by relying on laborers that the defendant knew to be undocumented. 271 F.3d at 378. The injury was not derivative of an injury to a third party because "the theory of Commercial's claim is that Colin undertook the illegal immigrant hiring scheme in order to undercut its business rivals." Id. at 384. Similarly here, the employees allege that the illegal hiring scheme was divined in order to depress the normal labor market.
Turning to the first factor, taking the allegations in the complaint as true, we are unable to discern a more direct victim of the illegal conduct. The documented employees here do not complain of a passed-on harm. They allege that the scheme had the purpose and direct result of depressing the wages paid to them by the growers. Thus, as the district court correctly determined, "plaintiffs have stated a claim that they are the direct victims of the illegal hiring scheme."
As in Knevelbaard Dairies and Commercial Cleaning, the scheme aims to gain an illegal commercial advantage 0907 here, disproportionate bargaining power in employment contracts 0907 in the growers' dealings with the employees. Neither the government nor the undocumented workers are an intervening third party in this scheme, despite the growers' arguments to the contrary. The claims here thus differ fundamentally from passed-on injury cases. See Imagineering Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1312 (9th Cir.1992) (holding that minority- and women-owned subcontractors could not sue general contractors under RICO for an illegal scheme to evade federally required quotas because the direct harm was to competitor general contractors who complied with the quotas); Oregon Laborers, 185 F.3d at 963-67 (holding that health care trust funds could not sue tobacco companies under RICO because their injury derived from the smokers' injury); Wash. Pub. Hosp., 241 F.3d at 703 (same for health care providers). In contrast to these other cases, the alleged scheme here was intended to give the growers a contract advantage at the expense of the documented workers, a direct rather than a passthrough injury.
We also note that the undocumented workers cannot "be counted on to bring suit for the law's vindication." Holmes, 503 U.S. at 273; cf. Hoffman Plastic Compounds Inc. v. NLRB, ___ U.S. ___, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (holding that undocumented workers are not entitled to backpay wrongfully withheld in a labor dispute). Although

not dispositive, see Oregon Laborers, 185 F.3d 957, we heed the Supreme Court's example and consider this factor in our analysis. As the district court noted, the fact that RICO specifically provides that illegal hiring is a predicate offense indicates that Congress contemplated the enforcement of the immigration laws through lawsuits like this one. 18 U.S.C. § 1961(1)(F).
The second concern to which we direct our attention is the speculative measure of harm. The district court noted that "intervening factors ... could have interfered with the plaintiffs receiving higher pay absent the defendants' hiring of undocumented workers. These intervening factors include the wage paid by other orchards in the area, the skill and qualifications of each plaintiff, the profitability of the defendants' businesses without the 1171 undocumented workers, and the general *1171 availability of documented workers in the area." In other words, the district court dismissed the complaint based on the conclusion that factors other than the scheme coupled with the growers' power in the relevant labor market could account for the plaintiffs' depressed wages. The difficulty with this reasoning is that the employees allege that the growers singularly have the ability to define wages in this labor market, akin to monopsony or oligopsony power. See Phillip Areeda, et al., Antitrust Law ¶¶ 574, 1431 (1995). They further allege that it is the illegal scheme that has caused their injury. The proposed amended complaint lays to rest any remaining doubt about attributing the alleged harm to the scheme, by spelling out a broad conspiracy causing direct harm to the workers. For example, it makes clear that the scheme involves fruit growers that "comprise a large percentage of the fruit orchards and packing houses in the area, and therefore affect wages throughout the labor market."
The district court's analysis focused primarily on cause-in-fact, not proximate cause, and it is inappropriate at this stage to substitute speculation for the complaint's allegations of causation. As we explained in Knevelbaard Dairies when we rejected the claim that milk prices might have been lower due to independent factors instead of the cheese price fixing: "Whether experts will be able to measure the difference between the allegedly restrained price for milk and the price that would have prevailed but for the antitrust violation remains to be seen; in deciding a Rule 12(b)(6) motion we are dealing only with the complaint's allegations, which in this instance do not make the claim speculative." 232 F.3d at 991.
Similarly here, the workers must be allowed to make their case through presentation of evidence, including experts who will testify about the labor market, the geographic market, and the effects of the illegal scheme. Questions regarding the relevant labor market and the growers' power within that market are exceedingly complex and best addressed by economic experts and other evidence at a later stage in the proceedings. For now, it is sufficient that the employees have alleged market power 0907 they must not be put to the test to prove this allegation at the pleading stage. See Scheidler, 510 U.S. at 256; In re Warfarin Sodium Antitrust Litigation, 214 F.3d 395, 398 (3d Cir.2000) (reversing dismissal based on lack of antitrust standing because "the District Court considered facts gleaned from counsel's argument and from its own experience, factors not contemplated by the dictates of Rule 12(b)(6)").
Finally, it is important to distinguish between uncertainty in the fact of damage and in the amount of damage. Knutson v. Daily Review, Inc., 548 F.2d 795, 811 (9th Cir.1976) ("Different standards govern proof of the fact and proof of the amount of damages."). That wages would be lower if, as alleged, the growers relied on a workforce consisting largely of undocumented workers, is a claim at least plausible enough to survive a motion to dismiss, whatever difficulty might arise in establishing how much lower the wages would be. Cf. Oregon Laborers, 185 F.3d at 964 (holding medical costs resulting from injury to smokers easily established).
Turning to the final factor, the growers do not appear to argue that there is a significant risk of multiple recovery in this case. No other potential plaintiffs emerge with clarity. Also, as the Second Circuit reasoned, even if there are other classes of potential plaintiffs who could recover for the alleged illegal hiring scheme, such lawsuits would 1172 not threaten multiple recovery of passed-on harm. Commercial Cleaning, 271 F.3d at 383-84. *1172 This factor does not bar suit for "different classes of plaintiffs, each of which suffered a different concrete injury, proximately caused by the violation." Id. at 384. In sum, there is no difficulty avoiding multiple recovery here because this is not a suit for derivative or passed-on harm.

B. CONSTITUTIONAL STANDING
Because they are invoking federal jurisdiction, the employees must establish "the irreducible constitutional minimum of standing" in addition to meeting the statutory standing requirements. Lujan, 504 U.S at 560-61. This minimum or threshold consists of three factors: (1) injury in fact: "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," id. at 560 (citations and internal quotations omitted); (2) causation: the injury must be fairly traceable to the defendant's challenged action, id.; and (3) redressability: "it must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision," id. at 561 (internal quotations omitted).
Based on the complaint, the employees easily meet this test. First, they allege a concrete, actual injury in their lost wages. As discussed above, their causation allegations are sufficient at this stage. See Scheidler, 510 U.S. at 256 (rejecting a constitutional causation challenge in a RICO suit where the plaintiffs alleged that a conspiracy to threaten staff and patients "has injured the business and/or property interests of the [petitioners]"). Finally, because the award of money damages will redress the injury of lost wages, the third element is also met.
II. SUPPLEMENTAL PARTY JURISDICTION
The employees sued Selective Employment solely under state law, precluding federal question jurisdiction, and all parties are Washington citizens, precluding diversity jurisdiction. See 28 U.S.C. §§ 1331 & 1332. In such a situation, absent an independent basis for federal subject matter jurisdiction, Congress has authorized the district court to exercise supplemental jurisdiction:
[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1337(a).[5]
Prior to the passage of § 1337, supplemental jurisdiction was more circumscribed and the addition of a party was one factor that barred jurisdiction over additional claims brought by plaintiffs. See generally Denis F. McLaughlin, The Federal Supplemental Jurisdictional Statute 0907 A Constitutional and Statutory Analysis, 24 Ariz. St. L.J. 849, 859-89 (1992). In 1973, the Supreme Court expressed some skepticism about "pendent party jurisdiction" 0907 jurisdiction over plaintiffs' claims requiring the addition of parties not involved in the main lawsuit. The Court characterized this issue as a "subtle and complex question with far-reaching implications." Moor v. County of Alameda, 411 U.S. 693, 715, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Continuing this thread, in Aldinger v. 1173 Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the *1173 Court held that pendent party jurisdiction was impermissible as a matter of statutory construction under the particular circumstances of the case. Finally, in Finley v. United States, 490 U.S. 545, 549, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), the Court "assume[d], without deciding," that pendent party jurisdiction was constitutional, but cautioned that it requires an express statutory jurisdictional grant. In 1990, Congress enacted § 1367 to provide such an express grant. Pub.L. No. 101-650 § 310.
The statutory grant of jurisdiction is, of course, limited by constitutional boundaries. Upon careful review, however, we are convinced that the controlling constitutional standard remains that articulated in United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966): The claims must form "but one constitutional `case'" and "derive from a common nucleus of operative fact." We therefore decline Selective Employment's invitation to impose a per se constitutional bar on supplemental jurisdiction over claims against additional parties.

A. AYALA V. UNITED STATES

Selective Employment relies on Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir.1977), where we held that federal courts were without power to exercise pendent party jurisdiction under the Federal Tort Claims Act. At that time, neither of the key Supreme Court cases, Moor and Aldinger, had resolved the question, nor did we have the benefit of the explicit language of Finley, which came ten years later. Selective Employment, however, points to language that implied that, in addition to not being authorized under any statute, pendent party jurisdiction posed constitutional difficulties. Id. at 1199, 1200 n. 8. These statements, however, are best read as flagging the necessity for caution due to potential constitutional problems that might arise with an unduly broad exercise of pendent jurisdiction.
Significantly, Ayala also came before intervening decisions that clarified that Ayala's restrictive interpretation does not survive the 1990 passage of § 1367. We explained in Galt G/S v. Hapag-Lloyd AG, 60 F.3d 1370, 1374 (9th Cir.1995), that Finley imposed two requirements for supplemental jurisdiction: (1) the claims must be "part of the same constitutional `case'"; and (2) the jurisdiction must be expressly authorized by statute. We further observed that "28 U.S.C. § 1367 supercedes this second Finley requirement...." Id. at 1374 n. 3; see also Yanez v. United States, 989 F.2d 323, 327 n. 3 (9th Cir.1993) (holding that court lacked jurisdiction in pre-1990 suit, but noting that "Congress has now explicitly authorized pendent party jurisdiction" (citing 28 U.S.C. § 1367)).

B. CONSTITUTIONALITY OF SUPPLEMENTAL JURISDICTION UNDER § 1367

Any lingering doubt that Ayala establishes a binding constitutional rule is put to rest by the Supreme Court's recent decision in Raygor v. Regents of the University of Minnesota, 534 U.S. 533, 122 S.Ct. 999, 1004, 152 L.Ed.2d 27 (2002). Holding that a tolling provision was curtailed by the Eleventh Amendment, the Court discussed the history of supplemental jurisdiction:

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In Mine Workers v. Gibbs, this Court held that federal courts deciding claims within their federalquestion subject matter jurisdiction, 28 U.S.C. § 1331, may decide state law claims not within their subject matter jurisdiction if the federal and state law claims "derive from a common nucleus of operative fact" and comprise "but one constitutional `case.'" ... This Court later made *1174 clear that absent authorization from Congress, a district court could not exercise pendent jurisdiction over claims involving parties who were not already parties to a claim independently within the court's subject matter jurisdiction. See Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989).

122 S.Ct. at 1004 (emphasis added; some citations omitted). The Court elaborated that § 1367 provided just such authorization, functioning as a "general grant of jurisdiction." Id. at 1005. As the Supreme Court explained in Raygor, Article III permits supplemental jurisdiction "if the federal and state law claims `derive from a common nucleus of operative fact' and comprise `but one constitutional case.'" Id. at 1004(quoting Gibbs, 383 U.S. at 725) (some internal quotation marks omitted). Thus, any suggestion in Ayala that the Constitution imposes a bar on supplemental jurisdiction over additional parties independent of statutory authorization has been undermined by intervening Supreme Court authority. See United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992) (holding that a prior panel decision is not binding in such a situation).

Selective Employment provides no compelling rationale to restrict supplemental jurisdiction beyond the limitation imposed in Gibbs. Indeed, the district court suggested that it would hold otherwise but for the belief that its hands were tied by Ayala. The district court's instincts were vindicated by the Supreme Court's later ruling in Raygor. We acknowledge, of course, that federal courts are courts of limited jurisdiction. U.S. Const. Art. III, sec. 2; Finley, 490 U.S. at 550(quoting Aldinger, 427 U.S. at 15). The Gibbs standard defines the minimum constitutional constraints, offering both Congress and the district courts flexibility to shape each case in a way that is efficient for the courts, fair to the parties, and respectful of state sovereignty.

Finally, we note that none of our sister circuits has imposed a per se constitutional restriction on supplemental jurisdiction over additional parties. See Hinson v. Norwest Financial S.C., Inc., 239 F.3d 611, 615 (4th Cir.2001) (holding that district court did not abuse its discretion in joining plaintiffs who asserted only state law claims); HB Gen'l Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1197-98 (3d Cir.1996) (holding that nondiverse party could be joined for counterclaims); Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir.1995) (noting that only Gibbs now limits pendent party jurisdiction); Palmer v. Hosp. Auth., 22 F.3d 1559, 1566-67 (11th Cir.1994) (holding that district court had pendent party jurisdiction because claims involved the "same facts, occurrences, witnesses, and evidence").
Thus, to avoid dismissal for lack of federal subject matter jurisdiction, the employees must show that the state conspiracy claims against Selective Employment constitute part of the same constitutional case as the federal RICO claims against the growers. Assuming that the claims meet the Gibbs standard, the district court has the power to exercise supplemental jurisdiction. The decision to exercise that jurisdiction remains discretionary with the district court. City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) (holding that district courts may decline to exercise jurisdiction over supplemental state law claims in the interest of judicial economy, convenience, fairness, and comity). We therefore remand for the district court to determine, in the first instance, whether the application of the Gibbs standard permits the exercise of 1175 supplemental jurisdiction, and to exercise discretion over whether such *1175 jurisdiction would be appropriate in the context of this litigation.
REVERSED and REMANDED.
[1] These facts, which are derived from the complaint, must be taken to be true because the case was dismissed on the pleadings for lack of jurisdiction and failure to state a claim. United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n. 1 (9th Cir.1999).
[2] The complaint also alleged a mail fraud RICO predicate in sending forms falsely verifying employment eligibility to the government. In a ruling that has not been appealed, the district court held that the mail fraud scheme did not provide an adequate RICO predicate act because the employees were not the party defrauded.
[3] The district court "remanded" the remaining state law claims against the growers. As the parties acknowledge, dismissal, not remand, was called for because this suit was originally brought in federal court. See 28 U.S.C. § 1447.
[4] The growers suggest that the employees would have to show a "property right" in the lost wages, by showing that they were promised or contracted for higher wages. This argument is misplaced in the context of RICO. This case does not implicate procedural due process; rather, what is required is precisely what the employees allege here: a legal entitlement to business relations unhampered by schemes prohibited by the RICO predicate statutes. 18 U.S.C. §§ 1962(c), 1961(1); Dumas v. Major League Baseball Prop., 104 F.Supp.2d 1220, 1222 (S.D.Cal. 2000), aff'd sub nom. Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1087 (9th Cir.2002) (holding no "injury to property" under RICO).
[5] The statute restricts supplemental jurisdiction in certain cases where the underlying basis for federal jurisdiction is diversity. 28 U.S.C. § 1337(b). This provision is not at issue in this case, which rests on federal question jurisdiction.
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[CONTENT] March 28, 2000 | Zirkle Fruit Company Matson Fruit Company | the Selective Employment Agency | the U.S. District Court | the Eastern District | Washington | Matson | Zirkle ||| Matson | Zirkle ||| Racketeer Influenced and Corrupt Organizations Act | RICO | 18 | 1961 | the Immigration and Nationality Act | 8 | U.S.C. | 1324(a |||  ||| Fred Van Sickle |||  ||| September 27, 2000 | Van Sickle | RICO ||| Van Sickle ||| Mendoza v. Zirkle Fruit Co. | 2000 | 33225470 |||  ||| October 21, 2002 | the United State Court of Appeals | the Ninth Circuit | McKeown ||| Mendoza v. Zirkle Fruit Co. | 301 | 1163 | 9th Cir. 2002 |||  ||| July 13, 2004 | the District Court | Van Sickle | Mason | Zirkle | Two | Zirkle Fruit Company's | November 5, 1999 | Zirkle | Selective Employment Agency ||| Zirkle Fruit Company's | November 5, 1999 ||| Mendoza v. Zirkle Fruit Co. | 222 | E.D. Wash. 2004 ||| August 13, 2004 | Van Sickle | Roderick Matson | Daryl Matson |||  ||| Van Sickle | Selective Employment's | the Zirkle Fruit Companies' | January 18, 2005 |||  ||| Zirkle Fruit | January 20, 2006 ||| Zirkle Fruit | $1.3 million ||| Court | May 17, 2006 [SUMMARY] On March 28, 2000 several former employees of Zirkle Fruit Company Matson Fruit Company filed a class action lawsuit against their former employers and the Selective Employment Agency, Inc. in the U.S. District Court for the Eastern District of Washington, alleging that Matson and Zirkle and the engaged in a massive scheme to hire undocumented illegal immigrants for the express purpose of depressing employee wages.  Selective was alleged to have acted as a front company in order to shield  from Matson and Zirkle from their illegal activity. Plaintiff alleged that defendants' scheme violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and the Immigration and Nationality Act, 8 U.S.C. § 1324(a), et seq.  Plaintiffs were represented by private counsel and sought a permanent injunction and monetary reimbursement for wages lost during the period of the employment of illegal workers. This case was assigned to District Judge Fred Van Sickle.

The defendants moved to dismiss the case. On September 27, 2000 Judge Van Sickle granted defendants' motion and dismissed the case, citing a lack of standing on the RICO claims.  Judge Van Sickle remanded plaintiffs' state law claims to state court. Mendoza v. Zirkle Fruit Co., 2000 WL 33225470 (E.D.Wash.).  Plaintiffs appealed.

On October 21, 2002, the United State Court of Appeals for the Ninth Circuit (Judge McKeown) reversed and remanded the case back to the district court. Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002).

On remand, plaintiffs amended their complaint twice, named several additional defendants and moved for class certification.  On July 13, 2004, the District Court, Judge Van Sickle, denied to certify a class of former employees of Mason, but certified a certified a class against Zirkle as follows: "Two classes are certified: Subclass (A) consists of persons who worked in Zirkle Fruit Company's warehouse from November 5, 1999, to the present whether Zirkle hired them directly or obtained them indirectly through Selective Employment Agency. Subclass (B) consists of persons who worked in Zirkle Fruit Company's orchards from November 5, 1999, to the present." Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439 (E.D. Wash. 2004)

On August 13, 2004, Judge Van Sickle ordered the dismissal of individual defendants Roderick Matson and Daryl Matson with prejudice.  The remaining defendants then moved for summary judgment. Judge Van Sickle granted in part and denied in part Selective Employment's motion for summary judgment and denied the Zirkle Fruit Companies' motion for summary judgment by order dated January 18, 2005.

Settlement negotiations followed.  Plaintiffs and Zirkle Fruit moved for approval of the proposed settlement, which was conditionally approved at a fairness hearing on January 20, 2006.  As part of the settlement, Zirkle Fruit agreed to pay $1.3 million towards the class settlement fund.  The Court issued its order of final approval and dismissal on May 17, 2006.

