O'Shea v. Harding et al

MOTION to Dismiss , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ind.May 31, 2017

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION ANDREW O’SHEA, individually and on behalf of all those similarly situated, Plaintiff, v. MARISOL MARTINEZ, JAMES HARDING and RUBEN HERNANDEZ, Defendants. ) ) ) ) ) ) ) ) ) ) ) Cause No. 4:16-CV-00015- JVB-JEM Hon. Joseph S. Van Bokkelen DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLA INT Defendants Marisol Martinez, James Harding and Ruben H rnandez respectfully submit, pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6), this Motion to Dismiss Second Amended Complaint. This Motion is supported by Defendants’ Brief in Support and the authorities cited therein, filed herewith, in accordance with Local Rule 7.1(b). As set forth more fully in the accompanying Brief, Plaintiff’s Second Amended Complaint must be dismissed for the following reasons: 1. This case arises out of purported illegal hiring practices by Martinez and Hernandez in their role as Human Resources workers at the Indiana Packers Corporation (“IPC”) pork- processing plant in Delphi, Indiana. Harding is allegedly Martinez’s and Hernandez’s supervisor at the IPC plant. 2. Plaintiff asserts that Martinez, Hernandez and Harding conspired, in violation of the Racketeer Influenced and Corrupt Organizations Act 18 U.S.C. §§1961-68 (“RICO”), to violate 18 U.S.C. §1546, which prohibits making false attestations with respect to immigration documents or using fraudulent immigration documents. USDC IN/ND case 4:16-cv-00015-JVB-JEM document 49 filed 05/31/17 page 1 of 4 2 3. Plaintiff’s civil RICO claim must be dismissed pursant to Rules 9(b) and 12(b)(6) for each of the following reasons: (a) Plaintiff has not plausibly pled an “injury” to his business or property that was proximately caused by the Defendants’ alleged RICO violations as required by 18 U.S.C. §1964(c); (b) Plaintiff has not pled a RICO conspiracy claim under 18 U.S.C. §1962(d) because he has not sufficiently detailed the content of any alleged agreement by the Defendants to violate 18 U.S.C. §1962(c); and (c) Plaintiff has not pled an underlying 18 U.S.C. §1962(c) claim because he has supplied no factual content showing that: a. The Defendants committed any RICO predicate acts; or b. Any of the Defendants “conducted” the affairs of a RICO enterprise through a “pattern of racketeering activity.” 4. Because this is now Plaintiff’s third failed attempt to state a RICO claim, Defendants respectfully request that the Court dismiss Plaintiff’s Second Amended Complaint with prejudice. WHEREFORE, Defendants respectfully request that this Court grant their Motion to Dismiss in its entirety and with prejudice, pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6), award them their court costs and attorneys’ fees, and grant them any and all other appropriate legal and equitable relief. USDC IN/ND case 4:16-cv-00015-JVB-JEM document 49 filed 05/31/17 page 2 of 4 3 Dated: May 31, 2017 Respectfully submitted, s/Brian E. Casey Peter A. Morse (Atty. No. 17474-49) Richard P. Winegardner (Atty. No. 17125-49) BARNES & THORNBURG LLP 11 S. Meridian Street Indianapolis, Indiana 46204 Telephone: (317) 231-7252 Facsimile: (317) 231-7433 pete.morse@btlaw.com richard.winegardner@btlaw.com Brian E. Casey (Atty. No. 23263-71) BARNES & THORNBURG LLP 100 North Michigan Street 600 1st Source Bank Center South Bend, Indiana 46601 Telephone: (574) 233-1171 Facsimile: (574) 237-1125 brian.casey@btlaw.com Attorneys for Defendants Marisol Martinez, James Harding and Ruben Hernandez USDC IN/ND case 4:16-cv-00015-JVB-JEM document 49 filed 05/31/17 page 3 of 4 - 4 - CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the or going was electronically filed this 31st day of May, 2017. Notice of this filing will be sent to all parties listed below by operation of the Court’s electronic filing system which the parties may access through the Court’s system. Susannah M. Hall-Justice - susannah@halljustice.com Howard Foster - hfoster@fosterpc.com Matthew Galin - mgalin@fosterpc.com s/Brian E. Casey Brian E. Casey DMS 10273486v1 USDC IN/ND case 4:16-cv-00015-JVB-JEM document 49 filed 05/31/17 page 4 of 4