Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 1 of 11

1 Nicholas J.P. Wagner
2 Wagner & Jones The Atrium Building
3 1111 East Herndon Ave., Suite 317
4 Frenso, CA 93720 (559) 449-1800
5

6 Howard W. Foster, pro hac vice counsel Johnson & Bell, Ltd.
7 33 W. Monroe, Suite 2700
8 Chicago, IL 60603 (312) 372-0770
9

10 Attorneys for Plaintiffs (Additional Counsel listed on signature page)
11

12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

13

FRESNO DIVISION

14
JOSE HERNANDEZ, individually and on 15 behalf of all others similarly situated,

16

17

18

v.

Plaintiffs,

CASE NO.: 1:06-cv-1383 JURY TRIAL DEMANDED CLASS ACTION FIRST AMENDED COMPLAINT

19 LEO BALAKIAN, ANTHONY 20 BALAKIAN AND VINCE BALAKIAN,

21

Defendants.

22
23 I.

NATURE OF ACTION

24

1. This is a class action brought on behalf of all legal hourly-paid workers,

25 who have been employed by Fruit Patch, Inc. of Reedley, California.

26

FIRST AMENDED COMPLAINT

- 1 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 2 of 11

1

Mr. Hernandez contends that the defendants (hereafter “the Balakians”) have

2
depressed his wages as an agricultural worker at Fruit Patch, Inc. by knowingly
3

4 employing vast numbers of illegal immigrants there for the express purpose of

5 depressing the market price for unskilled labor. (This is referred to as “the Illegal

6
Immigrant Hiring Scheme” or “the Scheme”.)
7

8

2. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced

9 and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. It is perpetrated
10
every day, as an integral part of the Balakian’s regular manner of staffing Fruit Patch,
11
12 and will continue unabated, victimizing every legal worker, until halted by judicial

13 intervention.

14
II. PARTIES, JURISDICTION & VENUE
15

16

3. Plaintiff Jose Hernandez is a citizen of California. He was legally

17 authorized to be employed in the U.S. when he was employed by Fruit Patch, Inc., as
18
an hourly paid farmworker. Fruit Patch, Inc. is owned and operated by the Balakians.
19

20 Mr. Hernandez’s wages as an agricultural worker for Fruit Patch, Inc. were set by the

21 Balakians at a level which was depressed as a direct result of the Illegal Immigrant
22
Hiring Scheme they perpetrated.
23

24

25

26

FIRST AMENDED COMPLAINT

- 2 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 3 of 11

1

4. Leo Balakian and his sons, Anthony and Vince Balakian, are citizens of

2
California. They have conspired to operate Fruit Patch, Inc. through a pattern of
3

4 racketeering activity, the Illegal Immigrant Hiring Scheme.

5

5. This Court has subject matter jurisdiction of this case as a federal

6
question, pursuant to 28 U.S.C. § 1331 and 18 U.S.C. § 1964(c).
7

8

6. Venue is proper in this District because the illegal acts giving rise to this

9 case occurred in this district and all parties reside here.

10
III. CLASS ALLEGATIONS
11

12

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

13 to FED. R. CIV. P. 23(b)(3). Mr. Hernandez brings this action on behalf of himself and
14
all other persons legally authorized to be employed in the U.S. who have been
15
16 employed by Fruit Patch, Inc. in the last four years (hereafter the “Class” or “Class

17 members”) as hourly or piece rate unskilled laborers.
18
8. The Class is so numerous that joinder of all Class members is
19

20 impracticable. The actual number can be ascertained through discovery of the various

21 entities’ records.
22
9. Among the questions of fact and law that are common to the Class are:
23

24

a. Whether the Defendants have been and are currently engaged in

25 the Illegal Immigrant Hiring Scheme in order to depress wages;

26

FIRST AMENDED COMPLAINT

- 3 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 4 of 11

1

b. To what extent the Illegal Immigrant Hiring Scheme has caused

2
Class members’ wages to be depressed; and
3

4

c. Whether the Illegal Immigrant Hiring Scheme violates the

5 Immigration and Nationality Act and RICO.
6
10. Plaintiff’s claims are typical of those of the members of the Class
7
8 inasmuch as their alleged damages were directly and proximately caused by the Illegal

9 Immigrant Hiring Scheme. Plaintiff seeks no relief that is antagonistic or adverse to

10
other Class members.
11

12

11. Plaintiff is committed to the vigorous prosecution of this action and has

13 retained counsel who are competent in the prosecution of RICO cases generally, and
14
this legal theory in particular. Accordingly, Plaintiff and their counsel will fairly and
15
16 adequately protect and represent the interests of the Class.

17

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

18
substantially similar and predominate over any questions affecting only individual
19

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

21 efficient adjudication of this controversy for the following reasons, among others:
22
a. The individual amounts of damages involved, while not
23

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

25

26

FIRST AMENDED COMPLAINT

- 4 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 5 of 11

1

b. The costs of individual actions would unreasonably consume the

2
amounts that would be recovered;
3

4

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

5

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

6
of inconsistent results and would be unnecessarily duplicative of this litigation.
7

8

13. Plaintiff anticipates no difficulty in the management of this action

9 because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable
10
through discovery, the identities of the members of the Class are known to
11
12 Defendants. Damages can be calculated through expert testimony.

13 IV. THE ILLEGAL IMMIGRANT HIRING SCHEME ENSURES THAT

14

MOST HOURLY WORKERS ARE UNAUTHORIZED FOR

EMPLOYMENT AND THAT WAGES ARE DEPRESSED

15

16

14. The Illegal Immigrant Hiring Scheme saves Fruit Patch, Inc. millions of

17 dollars per year in labor costs. This is so because illegal immigrants will work for

18
starvation wages and in deplorable working conditions. Such hiring practices are in
19
20 direct violation of the Immigration and Nationality Act and RICO, which makes the

21 employment of illegal immigrants a predicate offense. Thus, if the Balakians were not

22
hiring large numbers of illegal immigrants, their business would have to pay the
23
24 Plaintiff Class significantly higher wages, and their profits would be sharply reduced.

25

26

FIRST AMENDED COMPLAINT

- 5 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 6 of 11

1

15. All three of the Balakians have approved the following hiring criteria for

2
Fruit Patch, Inc. These criteria subvert the law against hiring illegal immigrants and
3

4 effectively turn a blind eye to factors which any reasonable employer would know

5 indicate job applicants are unauthorized for employment in the U.S.: 1) hiring
6
workers who cannot speak English while claiming to be U.S. Citizens or Lawful
7
8 Permanent Residents; 2) hiring workers who do not have housing and are recent

9 arrivals to the U.S. and claim to be U.S. Citizens or Lawful Permanent Residents; 3)
10
hiring workers who present authorization documents which are invalid on their face
11
12 because the pictures are of a different person, are upside down, are on poor quality

13 paper, etc.; 4) hiring workers who are personally known to them to be in the U.S.
14
illegally and are using false documents; and 5) hiring workers who have previously
15
16 been employed under different identities. A majority of the hourly workforce of Fruit

17 Patch, Inc. fall into one or more of these categories.

18

19

16. Additionally, Fruit Patch, Inc. is often informed that large numbers of its

20 workers are using false social security numbers by the Social Security Administration.
21
Most of these workers then simply assume new identities and continue to be
22
23 employed, pursuant to policies set by the Balakians.

24

25

26

FIRST AMENDED COMPLAINT

- 6 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 7 of 11

1

A. The Balakians Have Personally Approved The Scheme

2

17. The Balakians have personally approved the hiring procedures detailed

3

above. They have also directed their hiring personnel, including Roberto Olivarez,
4

5 who has hired hundreds of illegal immigrants for Fruit Patch, Inc., to follow these

6 procedures, i.e., in ways that ensure the employment of a largely illegal workforce.

7

8

18. In addition, the Balakians facilitate the hiring of many of these illegal

9 immigrants by directing their hiring-personnel to obtain housing for them, which

10 Roberto Olivarez, among others, has done for illegal workers at Fruit Patch, Inc.

11

12

19. Therefore, Mr. Hernandez alleges that the Balakians have facilitated the

13 Illegal Immigrant Hiring Scheme, thereby causing Fruit Patch, Inc. to hire more than

14
100 illegal workers per year during the last four years.

15
B. The Scheme Violates the Immigration and Nationality Act.
16

17

20. The Immigration and Nationality Act provides, in relevant part:

18

Any person who, during any 12-month period, knowingly

19

hires for employment at least 10 individuals with actual

knowledge that the individuals are aliens… shall be fined

20

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

21

both.

22 8 U.S.C. § 1324(a)(3)(A).

23

21. The Balakians have violated this provision of the Act by conspiring to

24
employ more than 10 undocumented, illegal aliens in each of the last four years,
25

26 knowing each was smuggled into the country and/or harbored once they arrived here.

FIRST AMENDED COMPLAINT

- 7 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 8 of 11

1

22. Additionally, by knowingly employing illegal immigrants and, further,

2
conspiring to provide them with housing, the Balakians have conspired to violate 8
3

4 U.S.C. § 1324(a)(1)(A)(iii) which makes it a federal crime for anyone who “knowing

5 or in reckless disregard of the fact that an alien has come to, entered, or remains in the
6
United States in violation of law, conceals, harbors, or shields from detection, or
7
8 attempts to conceal, harbor, or shield from detection, such alien in any place,

9 including any building or any means of transportation.”
10
23. These are provisions of § 274 of the Immigration and Nationality Act,
11
12 which is a RICO predicate offense. 18 U.S.C. § 1961(1)(F).

13

C. Fruit Patch, Inc. is a RICO Enterprise Controlled And Operated By

14

The Balakians

15

24. Fruit Patch, Inc. is a California corporation affecting interstate

16
commerce. It is therefore a RICO enterprise, pursuant to 18 U.S.C. § 1961(4). All
17
18 three of the Balakians operate and manage Fruit Patch, Inc., and, as stated, have

19 implemented the Scheme at Fruit Patch, Inc. by virtue of their roles as managers,

20
officers and owners.
21

22

D. The Balakians Have Violated 18 USC § 1962(d) And Will Continue

To Do So Indefinitely

23

25. The conspiracy to perpetrate the Scheme is a violation of 18 U.S.C. §
24

25 1962(d), an agreement among the Balakians to violate § 1962(c), by participating in

26

FIRST AMENDED COMPLAINT

- 8 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 9 of 11

1 the affairs of Fruit Patch, Inc. through a pattern of racketeering activity. The Scheme
2
is ongoing, open-ended, and has been perpetrated continuously for the last four years.
3
4 It will not stop without judicial intervention.

5 V. PLAINTIFFS ARE DIRECT VICTIMS OF THE ILLEGAL

6

IMMIGRANT HIRING SCHEME

7

26. The Balakians’ Illegal Immigrant Hiring Scheme, by itself, was a

8 substantial factor in causing the depressed wages about which Hernandez and the
9
10 Class complain. No other party has been damaged by the Scheme.

11

27. Each of the defendants is subject to joint and several liability for all of

12 the damage caused by all the racketeering acts committed by any of the Defendants.
13
14 VI. PRAYER FOR RELIEF

15

28. Plaintiff demands judgment and other relief, as follows:

16
a. Certification of the Class pursuant to FED. R. CIV. P. 23(b)(3);
17

18

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

19 the Class by the Defendants’ racketeering activity, the Illegal Immigrant Hiring

20
Scheme, pursuant to 18 U.S.C. § 1964(c);
21

22

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

23

d. For the costs of this action; and

24
e. For any other relief the Court deems just and proper.
25

26

FIRST AMENDED COMPLAINT

- 9 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 10 of 11

1 DATED: April 2, 2007
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FIRST AMENDED COMPLAINT

/s/ Howard W. Foster Howard W. Foster, pro hac vice counsel Johnson & Bell, Ltd. 33 W. Monroe St., Suite 2700 Chicago, IL 60603
Michael Goldberg The Goldberg Law Firm 925 N St., Suite 130 Fresno, CA 93721
Attorneys for Plaintiffs

- 10 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

Case 1:06-cv-01383-OWW-DLB Document 42 Filed 04/02/2007 Page 11 of 11

1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 2, 2007, I electronically filed the foregoing with the Clerk of

3 the District Court using the CM/ECF system, which sent notification of such filing to the following:

4

Jan L. Kahn

5

John V. Ohnstad, Jr. KAHN, SOARES & CONWAY, LLP

6

219 N. Douty Street

Hanford, California 93230

7

Monte B. Lake, pro hac vice counsel

8

Christine M. Cooper

Natalie K. Brouwer

9

MCGUINESS NORRIS & WILLIAMS, LLP

1015 Fifteenth Street, N.W., Suite 1200

10

Washington, D.C. 20005

11

By /s/ Howard W. Foster

12

Howard W. Foster

Johnson & Bell, Ltd.

13

33 W. Monroe St., Suite 2700

Chicago, IL 60603

14

15

16

17

18

19

20

21

22

23

24

25

26
FIRST AMENDED COMPLAINT

- 11 -

Johnson & Bell, Ltd. 33 West Monroe St., Suite 2700
Chicago, IL 60603-5404 (312) 372-0770

 
 1 Nicholas J.P. Wagner, #109455 2 Wagner & Jones
The Atrium Building 3 1111 East Herndon Ave., Suite 317 4 Fresno, CA 93720
(559) 449-1800
5

6 Howard W. Foster, pro hac vice counsel Johnson & Bell, Ltd.
7 33 W. Monroe, Suite 2700
8 Chicago, IL 60603 (312) 372-0770
9

10 Attorneys for Plaintiffs (Additional Counsel listed on signature page)
11

12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

13

FRESNO DIVISION

14 JOSE HERNANDEZ, individually and on 15 behalf of all others similarly situated,

16

17

18

v.

Plaintiffs,

JURY TRIAL DEMANDED CLASS ACTION COMPLAINT

19 LEO BALAKIAN, ANTHONY 20 BALAKIAN AND VINCE BALAKIAN,

21

Defendants.

22

23

24

25

26

1474384
CLASS ACTION COMPLAINT

- 1 -

1 I. NATURE OF ACTION

2

1. This is a class action brought on behalf of all legal hourly-paid workers,

3

4 who have been employed by any entity owned or operated by the defendants,

5 including Fruit Patch, Inc. of Reedley, California.

6

Mr. Hernandez contends that the defendants (hereafter “the Balakians”) have

7

8 depressed his wages as an agricultural worker at Fruit Patch Inc. by knowingly

9 employing vast numbers of illegal immigrants there for the express purpose of

10 depressing the market price for unskilled labor. (This is referred to as “the Illegal
11
12 Immigrant Hiring Scheme” or “the Scheme”.)

13

2. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced

14 and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. It is perpetrated
15
16 every day, as an integral part of the Balakian’s regular manner of staffing their

17 orchards, and will continue unabated, victimizing every legal worker, until halted by

18
judicial intervention.
19
20 II. PARTIES, JURISDICTION & VENUE

21

3. Plaintiff Jose Hernandez is a citizen of California. He was legally

22
authorized to be employed in the U.S. when he was employed by Fruit Patch, Inc., as
23
24 an hourly paid farmworker. Fruit Patch Inc. is owned and operated by the Balakians.

25 Mr. Hernandez’s wages as an agricultural worker for Fruit Patch Inc. were set by the
26

1474384
CLASS ACTION COMPLAINT

- 2 -

1 Balakians at a level which was depressed as a direct result of the Illegal Immigrant

2
Hiring Scheme they perpetrated.
3

4

4. Leo Balakian and his sons, Anthony and Vince Balakian, are citizens of

5 California. They have conspired to operate Fruit Patch Inc. and other agricultural
6
growing businesses they own or operate (hereafter “the other entities”) through a
7
8 pattern of racketeering activity, the Illegal Immigrant Hiring Scheme.

9

5. This Court has subject matter jurisdiction of this case as a federal

10
question, pursuant to 28 U.S.C. § 1331 and 18 U.S.C. § 1964(c).
11

12

6. Venue is proper in this District because the illegal acts giving rise to this

13 case occurred in this district and all parties reside here.

14
III. CLASS ALLEGATIONS
15

16

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

17 to FED. R. CIV. P. 23(b)(3). Mr. Hernandez brings this action on behalf of himself and
18
all other persons legally authorized to be employed in the U.S. who have been
19

20 employed by Fruit Patch Inc. and the other entities owned and/or operated by any of

21 the three Defendants in the last four years (hereafter the “Class” or “Class members”)
22
as hourly or piece rate unskilled laborers.
23

24

25

26

1474384
CLASS ACTION COMPLAINT

- 3 -

1

8. The Class is so numerous that joinder of all Class members is

2
impracticable. The actual number can be ascertained through discovery of the various
3

4 entities’ records.

5

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

6
a. Whether the Defendants have been and are currently engaged in
7

8 the Illegal Immigrant Hiring Scheme in order to depress wages;

9

b. To what extent the Illegal Immigrant Hiring Scheme has caused

10
Class members’ wages to be depressed; and
11

12

c. Whether the Illegal Immigrant Hiring Scheme violates the

13 Immigration and Nationality Act and RICO.
14
10. Plaintiffs’ claims are typical of those of the members of the Class
15
16 inasmuch as their alleged damages were directly and proximately caused by the Illegal

17 Immigrant Hiring Scheme. Plaintiffs seek no relief that is antagonistic or adverse to
18
other Class members.
19

20

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

21 have retained counsel who are competent in the prosecution of RICO cases generally,
22
and this legal theory in particular. Accordingly, Plaintiffs and their counsel will fairly
23

24 and adequately protect and represent the interests of the Class.

25

26

1474384
CLASS ACTION COMPLAINT

- 4 -

1

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

2
substantially similar and predominate over any questions affecting only individual
3

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

5 efficient adjudication of this controversy for the following reasons, among others:
6
a. The individual amounts of damages involved, while not
7
8 insubstantial, are generally not large enough to justify individual actions;

9

b. The costs of individual actions would unreasonably consume the

10
amounts that would be recovered;
11

12

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

13

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

14
of inconsistent results and would be unnecessarily duplicative of this litigation.
15

16

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

17 because the evidence proving the Illegal Immigrant Hiring Scheme is ascertainable
18
through discovery, the identities of the members of the Class are known to Defendants
19

20 and the other entities over which they have control. Damages can be calculated

21 through expert testimony.
22

23

24

25

26

1474384
CLASS ACTION COMPLAINT

- 5 -

1 IV. THE ILLEGAL IMMIGRANT HIRING SCHEME ENSURES THAT

2

MOST HOURLY WORKERS ARE UNAUTHORIZED FOR

EMPLOYMENT AND THAT WAGES ARE DEPRESSED

3

4

14. The Illegal Immigrant Hiring Scheme saves Fruit Patch Inc. and the other

5 entities millions of dollars per year in labor costs. This is so because illegal

6 immigrants will work for starvation wages and in deplorable working conditions, a
7
8 form of modern-day indentured servitude. Such hiring practices are in direct violation

9 of the Immigration and Nationality Act and RICO, which makes the employment of

10 illegal immigrants a predicate offense. Thus, if the Balakians were not hiring large
11
12 numbers of illegal immigrants, their businesses would have to pay the Plaintiff Class

13 significantly higher wages, and their profits would be sharply reduced.

14

15

15. All three of the Balakians have approved the following hiring criteria for

16 Fruit Patch Inc. and the other entities. These criteria subvert the law against hiring

17 illegal immigrants and effectively turn a blind eye to factors which any reasonable
18
19 employer would know indicate job applicants are unauthorized for employment in the

20 U.S.: 1) hiring workers who cannot speak English while claiming to be U.S. Citizens

21 or Lawful Permanent Residents; 2) hiring workers who do not have housing and are
22
23 recent arrivals to the U.S. and claim to be U.S. Citizens or Lawful Permanent

24 Residents; 3) hiring workers who present authorization documents which are invalid

25 on their face because the pictures are of a different person, are upside down, are on
26

1474384
CLASS ACTION COMPLAINT

- 6 -

1 poor quality paper, etc.; 4) hiring workers who are personally known to them and their
2
co-conspirators to be in the U.S. illegally and are using false documents; and 5) hiring
3
4 workers who have previously been employed under different identities. A majority of

5 the hourly workforce of Fruit Patch Inc. and the other entities fall into one or more of
6
these categories.
7

8

16. Additionally, Fruit Patch Inc. and the other entities are often informed

9
that large numbers of their workers are using false social security numbers by the
10
11 Social Security Administration. Most of these workers then simply assume new

12 identities and continue to be employed, pursuant to policies set by the Balakians.

13

A. The Balakians Have Personally Approved The Scheme; Their Co-

14

Conspirators Implement It

15

17. The Balakians have personally approved the hiring procedures detailed

16

17 above. They have also directed their hiring personnel, including Roberto Olivarez,

18 who has hired hundreds of illegal immigrants for Fruit Patch, Inc., to follow these

19 procedures, i.e., in ways that ensure the employment of a largely illegal workforce.

20

21

18. In addition, the Balakians facilitate the hiring of many of these illegal

22 immigrants by directing their hiring-personnel to obtain housing for them, which

23 Roberto Olivarez, among others, has done for illegal workers at Fruit Patch Inc.

24

25

19. Therefore, Mr. Hernandez alleges that the Balakians and their co-

26 conspirators have facilitated the Illegal Immigrant Hiring Scheme, thereby causing

1474384
CLASS ACTION COMPLAINT

- 7 -

1 Fruit Patch Inc. and the other entities they operate to hire more than 100 illegal

2
workers per year during the last four years.
3

4

B. The Scheme Violates the Immigration and Nationality Act.

5

20. The Immigration and Nationality Act provides, in relevant part:

6

Any person who, during any 12-month period, knowingly

7

hires for employment at least 10 individuals with actual

knowledge that the individuals are aliens… shall be fined

8

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

9

both.

10 8 U.S.C. § 1324(a)(1)(B)(3)(A).

11

21. The Balakians have violated this provision of the Act by conspiring to

12

13 employ more than 10 undocumented, illegal aliens in each of the last four years,

14 knowing each was smuggled into the country and/or harbored once they arrived here.

15

22. Additionally, by knowingly employing illegal immigrants and, further,

16

17 conspiring to provide them with housing, the Balakians have conspired to violate 8

18 U.S.C. § 1324(a)(1)(A)(iii), which makes it a federal crime for anyone who “knowing

19
or in reckless disregard of the fact that an alien has come to, entered, or remains in the
20
21 United States in violation of law, conceals, harbors, or shields from detection, or

22 attempts to conceal, harbor, or shield from detection, such alien in any place,

23
including any building or any means of transportation.”
24

25

23. These are provisions of § 274 of the Immigration and Nationality Act,

26 which is a RICO predicate offense. 18 U.S.C. § 1961(1)(F).

1474384
CLASS ACTION COMPLAINT

- 8 -

1

C. Fruit Patch Inc. And The Balakians’ Other Agricultural Businesses

2

Are RICO Enterprises Controlled And Operated By The Balakians

3

24. Fruit Patch Inc. is a California corporation affecting interstate commerce.

4 It is therefore a RICO enterprise, pursuant to 18 U.S.C. § 1961(4). Additionally, the
5
6 other entities are each RICO enterprises affecting interstate commerce. All three of

7 the Balakians operate and manage each of these enterprises and, as stated, have

8 implemented the Scheme at each by virtue of their roles as managers, officers and
9
10 owners of each entity.

11

D. The Balakians Have Violated 18 USC § 1962(d) And Will Continue

12

To Do So Indefinitely

13

25. The conspiracy to perpetrate the Scheme is a violation of 18 U.S.C. §

14 1962(d), an agreement among the Balakians and co-conspirators to violate § 1962(c),
15
by participating in the affairs of Fruit Patch Inc. and the other entities through a
16
17 pattern of racketeering activity. The Scheme is ongoing, open-ended, and has been

18 perpetrated continuously for the last four years. It will not stop without judicial
19
intervention.
20

21 V.
22 23

PLAINTIFFS ARE DIRECT VICTIMS OF THE ILLEGAL IMMIGRANT HIRING SCHEME
26. The Balakians’ Illegal Immigrant Hiring Scheme, by itself, was a

24 substantial factor in causing the depressed wages about which Hernandez and the
25
Class complain. No other party has been damaged by the Scheme.
26

1474384
CLASS ACTION COMPLAINT

- 9 -

1

27. Each defendant is subject to joint and several liability for all of the

2
damage caused by all the racketeering acts committed by any of the conspirators.
3

4 VI. PRAYER FOR RELIEF

5

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

6

a. Certification of the Class pursuant to FED. R. CIV. P. 23(b)(3);
7

8

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

9 the Class by the Defendants’ racketeering activity/the Illegal Immigrant Hiring
10
11 Scheme, pursuant to 18 U.S.C. § 1964(c);

12

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

13

d. For the costs of this action; and

14

15

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

16

17

18

19

20

21

22

23

24

25

26

1474384
CLASS ACTION COMPLAINT

- 10 -

1 DATED: October 5, 2006
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1474384
CLASS ACTION COMPLAINT

By __/s/ Nicholas Wagner Nicholas J.P. Wagner Wagner & Jones The Atrium Building 1111 East Herndon Ave., Suite 317 Fresno, CA 93720 Michael Goldberg The Goldberg Law Firm 925 N St., Suite 130 Fresno, CA 93721 Howard W. Foster Johnson & Bell, Ltd. 33 W. Monroe St., Suite 2700 Chicago, IL 60603 Attorneys for Plaintiffs
- 11 -

 
 480 F.Supp.2d 1198 (2007)

Jose HERNANDEZ, individually on, behalf of others similarly situated, Plaintiff, v.
Leo BALAKIAN, Anthony Balakian, and Vince Balakian, Defendant.

No. CV-F-06-1383 OWW/DLB.

United States District Court, E.D. California.

March 27, 2007.

1129090 *1199 *1200 Nicholas J.P. Wagner, Law Offices of Wagner & Jones, Michael Goldberg, The Goldberg Law Firm, Fresno, CA, Howard W. Foster, Pro Hac Vice, Johnson & Bell Ltd., Chicago, IL, for Plaintiff.

Christine M. Cooper, Pro Hac Vice, Monte B. Lake, Pro Hac Vice, McGuiness Norris & William, LLP, Washington, DC, Jan Leslie Kahn, Kahn, Soares & Conway, LLP, Hanford, CA, for Defendant.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS (Doc. 17) AND DENYING PLAINTIFF'S MOTION FOR SANCTIONS (Doc. 25)

WANGER, District Judge.

Plaintiff Jose Hernandez has filed a class action Complaint against defendants Leo Balakian, Anthony Balakian, and Vince Balakian, owners of Fruit Patch, Inc. The Complaint alleges that "Leo Balakian and his sons, Anthony and Vince Balakian . . . have conspired to operate Fruit Patch Inc. and other agricultural growing businesses they own or operate (hereinafter the other entities') through a pattern of racketeering activity, the Illegal Immigrant Hiring Scheme." ¶ 4 The Complaint is brought on behalf of all legal hourly-paid workers who have been employed by an entity owned or operated by the Defendants. Plaintiff alleges that Defendants "have depressed his wages as an agricultural worker at Fruit Patch, Inc. by knowingly employing vast numbers of illegal immigrants there for the express purpose of depressing the market price for unskilled labor." Plaintiff refers to this as "the Illegal Immigrant Hiring Scheme" or "the Scheme". The Complaint alleges:

2. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. It is perpetrated every day, as an integral part of the Balakian's regular manner of staffing their orchards, and will continue unabated, victimizing every legal worker, until halted by judicial intervention.

The Complaint further alleges:

1201

14. The Illegal Immigrant Hiring Scheme saves Fruit Patch Inc. and the other entities millions of dollars per year in labor costs. This is so because illegal immigrants will work for starvation *1201 wages and in deplorable working conditions, a form of modern-day indentured servitude. Such hiring practices are in direct violation of the Immigration and Nationality Act and RICO, which makes the employment of illegal immigrants a predicate offense. Thus, if the Balakians were not hiring large numbers of illegal immigrants, their businesses would have to pay the Plaintiff Class significantly higher wages, and their profits would be sharply reduced.

15. All three of the Balakians have approved the following hiring criteria for Fruit Patch Inc. and the other entities. These criteria subvert the law against hiring illegal immigrants and effectively turn a blind eye to factors which any reasonable employer would know indicate job applicants are unauthorized for employment in the U.S.: 1) hiring workers who cannot speak English while claiming to be U.S. Citizens or Lawful Permanent Residents; 2) hiring workers who do not have housing and are recent arrivals to the U.S. and claim to be U.S. Citizens or Lawful Permanent Residents; 3) hiring workers who present authorization documents which are invalid on their face because the pictures are of a different person, are upside down, are on poor quality paper, etc.; 4)

hiring workers who are personally known to them and their co-conspirators to be in the U.S. illegally and are using false documents; and 5) hiring workers who have previously been employed under different identities. A majority of the hourly workforce of Fruit Patch Inc. and the other entities fall into one of more of these categories.
16. Additionally, Fruit Patch Inc. and the other entities are often informed that large numbers of their workers are using false social security numbers by the Social Security Administration. Most of these workers then simply assume new identities and continue to be employed, pursuant to policies set by the Balakians.
. . . . .
17. The Balakians have personally approved the hiring procedures detailed above. They have also directed their hiring personnel, including Robero Olivarez, who has hired hundreds of illegal immigrants for Fruit Patch Inc. to follow these procedures, i.e., in ways that ensure the employment of a largely illegal workforce.
18. In addition, the Balakians facilitate the hiring of many of these illegal immigrants by directing their hiring-personnel [sic] to obtain housing for them, which Roberto Olivarez, among others, has done for illegal workers at Fruit Patch Inc.
19. Therefore, Mr. Hernandez alleges that the Balakians and their co-conspirators have facilitated the Illegal Immigrant Hiring Scheme, thereby causing Fruit Patch Inc. and the other entities they operate to hire more than 100 illegal workers per year during the last four years.
The Complaint alleges that the Balakian's Illegal Immigrant Hiring Scheme violates the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(B)(3)(A),[1] as they have conspired "to employ more than 10 undocumented, illegal aliens in each of the last four years, knowing each was smuggled into the country and/or harbored once they arrived here." ¶ 21. [Emphasis added] The Complaint alleges that "by knowingly employing 1202 illegal immigrants and . . . conspiring *1202 to provide them with housing, the Balakians have conspired to violate 8 U.S.C. § 1324(a)(1)(A) (iii), which makes it a federal crime for anyone who `knowing, or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.'" ¶ 22. [Emphasis added].
The Complaint alleges that "[t]hese are provisions of § 274 of the Immigration and Nationality Act, which is a RICO predicate offense" pursuant to 18 U.S.C. § 1961(1)(F); that Fruit Patch Inc. is a corporation affecting interstate commerce and is therefore a RICO enterprise pursuant to 18 U.S.C. § 1961(4); that the other entities are each RICO enterprises affecting interstate commerce; and that all three of the Balakians operate and manage each of these enterprises and have implemented the Illegal. Immigrant Hiring Scheme at each by virtue of their roles as managers, officers and owners. The Complaint alleges:
25. The conspiracy to perpetrate the Scheme is a violation of 18 U.S.C. § 1962(d), an agreement among the Balakians and co-conspirators to violate § 1962(c), by participating in the affairs of Fruit Patch Inc. and the other entities through a pattern of racketeering activity. The Scheme is ongoing, open-ended, and has been perpetrated continuously for the last four years. It will not stop without judicial intervention.
. . . . .
26. The Balakians' Illegal Immigrant Hiring Scheme, by itself, was a substantial factor in causing the depressed wages about which Hernandez and the Class complain. No other party has been damaged by the Scheme.
27. Each defendant is subject to joint and several liability for all of the damage caused by all the racketeering acts committed by any of the conspirators.

Defendants move to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Rules 8 and 12(b) (6), Federal Rules of Civil Procedure.
In addition to opposing the Motion to Dismiss, Plaintiff has filed a Motion for Sanctions pursuant to Rule 11, Federal Rules of Civil Procedure, against Defendants and their counsel, Monte B. Lake, because of the failure to cite Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002), in the Motion to Dismiss. The Motion for Sanctions seeks an order striking Defendants' Motion to Dismiss and an award of attorneys' fees incurred by Plaintiff in opposing the Motion to Dismiss and for preparing the Motion for Sanctions.
A. Defendants' Motion to Dismiss.
In moving to dismiss, Defendants contend that the Complaint fails to adequately plead the necessary elements of a RICO predicate Act under 18 U.S.C. § 1962(c) and underlying crimes defined by the Immigration and Nationality Act; that Plaintiffs failure to state a Section 1962(c) claim results in the failure to state a claim under Section 1962(d); and that Plaintiff fails to adequately plead the necessary elements of a RICO conspiracy under Section 1962(d).
1. Governing Standards.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt 1203 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley *1203 v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998).
2. Failure to Plead Racketeering Activity.
"A civil RICO complaint must at least allege: `(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as "predicate acts") (5) causing injury to plaintiffs "business or property."'" Flores v. Emerich & Fike, 416 F.Supp.2d 885, 911 (E.D.Cal.2006). Defendants do not challenge the sufficiency of the Complaint as to the conduct, enterprise, pattern, or causation and injury elements of a RICO charge.
RICO prohibits engaging in a pattern of "racketeering activity," defined in 18 U.S.C. § 1961(1) as violating certain laws. Included as racketeering activity is "any Act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in or harboring certain aliens). . . ." 18 U.S.C. § 1961(1)(F). A "pattern of racketeering activity" is defined in 18 U.S.C. § 1961(5) as "at least two acts of racketeering activity" within a ten year period.
a. 8 U.S.C. § 1324(a)(3).
Defendants argue that the Plaintiff has not and cannot plead a pattern of racketeering activity because Plaintiff fails to plead sufficient facts to allege a violation of Section 274 of the Immigration and Nationality Act.
8 U.S.C. § 1324(a)(3) provides in pertinent part:
(A) 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 five years, or both.

(B) An alien described in this subparagraph is an alien who 0907
(i) is an unauthorized alien (as defined in section 1324a(h)(3) of this title), and
(ii) has been brought into the United States in violation of this title.
8 U.S.C. § 1324a(h)(3) defines an "unauthorized alien" by stating that the term means "with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General."
Defendants argue that the Complaint's allegations that Defendants violated this provision are "wholly conclusory". Defendants contend that the Complaint merely uses the terms "knowingly" and "knowing", which allegations do 1204 not satisfy the "actual knowledge" requirement of Section *1204 1324(a)(3)(A). Because the Complaint does not allege that Defendants brought illegal aliens into the United States with actual knowledge that they were illegal aliens to employ them, Defendants further argue that the Complaint fails to allege facts satisfying Section 1324(a) (3)(B).
Defendants rely on System Management, Inc. v. Loiselle, 91 F.Supp.2d 401 (D.Mass.2000), rev'd on other grounds, 303 F.3d 100 (1st Cir.2002). In Loiselle, the Complaint alleged the repeated and knowing hiring of at least ten unauthorized aliens per year since such hiring activity became racketeering activity. In dismissing the claim, the district court held in pertinent part:
The statute also requires the defendant, however, to have actual knowledge that the aliens have `been brought into the country in violation of [§ 1324(a)(3)].' 8 U.S.C. § 1324(a)(3)(B)(ii). This clause is self-referential and thus difficult to interpret, but in this case it seems to require, in order for liability to attach, that the aliens have, been brought into the country by an employer for the purpose of illegal employment. Thus, to state a civil RICO claim on the basis of a violation of this subsection of Title 8, the Plaintiffs must allege that Loiselle had knowledge of how the aliens had been brought into the United States and that they were brought into the United States in violation of this employment provision. Although the Plaintiffs have alleged that Loiselle had knowledge of the aliens' illegal status, they have not set forth any factual allegation as to how the aliens entered the country or whether Loiselle had any knowledge of the purpose for which they entered. The text of 8 U.S.C. § 1324(a)(3) therefore compels the conclusion that the RICO claim brought on the ground of employment of aliens must be dismissed.
This conclusion is supported by other indicia. Section 1324 (Section 274 of the Immigration and Nationality Act) bears the title `Bringing in and harboring certain aliens.' It thus seems targeted against individuals who smuggle, conceal, or transport illegal aliens into the United States. In contrast, Section 274A of the Immigration and Nationality Act, which is distinct from 274, is entitled `Unlawful employment of aliens' and contains a variety of prohibitions on employment of illegal aliens in the United States. See 8 U.S.C. § 1324a. Indeed, Section 274A, codified as 8 U.S.C. § 1324a, provides that it is unlawful for a person or other entity `to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.' 8 U.S.C. § 1324a(a) (1)(A). This is the appropriate statute to capture Loiselle's alleged conduct, but the Plaintiffs are unable to use it because a violation of § 1324a is not listed as a predicate Act of `racketeering activity' under RICO. See 18 U.S.C. § 1961 (1)(F). The original Complaint . . . appears to use Section 274A as a predicate Act for the RICO claim. The Plaintiffs perhaps realized their inability to use Section 274A as a predicate Act when they filed the Amended Complaint, and changed their count to one under Section 274, trying improperly to fit the alleged employment activity into a statute related to bringing in and harboring aliens. The RICO claim premised on racketeering activity defined at 18 U.S.C. § 1961(1)(F) must therefore be dismissed.
91 F.Supp.2d at 408-409.

Defendants argue that the Complaint fails to allege that Defendants had actual knowledge of whether the aliens were "brought" into the United States, fails to allege any facts evidencing that Defendants had actual knowledge 1205 of the purpose *1205 for which the aliens entered the United States, and fails to allege any facts as to the individual Defendants' violations of Section 1324(a) (3). Defendants assert that the "scant facts alleged in the Complaint all relate to hiring":

Assuming, arguendo, that the allegations regarding the hiring of undocumented workers are true and plead with sufficient factual specificity, the Complaint fails to allege sufficient facts to satisfy the requirements of Section 1324(a)(3)(B).

Plaintiff responds that Defendants' reliance on Loiselle is misplaced, referring to the allegations in Paragraph 21 that Defendants knew that each alien "was smuggled into the country and/or harbored once they arrived here." Plaintiff argues that the requirement that a Complaint allege that defendants brought the aliens into the United States finds no support from any court. Plaintiff cites Williams v. Mohawk Industries, Inc., 314 F.Supp.2d 1333, 1345-1346 (N.D.Ga.2004), aff'd in relevant part, 411 F.3d 1252 (11th Cir. 2005). In Williams, the defendant, relying on Loiselle, argued that the Complaint must allege that defendant itself brought the illegal aliens into the United States. In rejecting this argument, Williams concluded:

. . . Loiselle holds that simple allegations that the defendant knowingly hired undocumented aliens are insufficient to state a claim under § 1324(a)(3); rather, a plaintiff must additionally allege that the defendant knew that the aliens were brought into the United States for the purpose of illegal employment. Loiselle, however, did not hold that the employer itself must have brought the aliens into the United States for a claim to arise under § 1324(a)(3). Accordingly, the Court concludes that for a plaintiff to plead a violation of § 1324(a)(3) adequately, the plaintiff must simply allege that the aliens were brought into the United States in violation of subsection (a), but there is no requirement that the employer must have brought the aliens into this country.

Plaintiff further argues that the Complaint adequately pleads that Defendants violated Section 1324(a)(3) and that Defendants' assertion that the allegations are "conclusory" are unsupported by any authority. Plaintiff relies on Mendoza v. Zirkle Fruit Co., supra, 301 F.3d 1163.

At issue in Mendoza was the standing of legally documented workers to sue their employers under RICO, whom they alleged depressed their salaries by conspiring to hire undocumented workers and the constitutionality of supplemental subject matter jurisdiction involving a party over whom there is no independent basis for federal court jurisdiction. 301 F.3d at 1166. However, before discussing the substantive merits of these issues, the Ninth Circuit, noting that the district court dismissed the action on the pleadings on the basis of RICO standing and supplemental jurisdiction, addressed "one proffered alternative ground for affirming the dismissal for failure to state a claim":

. . . 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 a 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)).

1206

. . . 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. *1206 We are unpersuaded by the growers' argument that the district erred in this respect. Their argument rests on a hypertechnical reading of the complaint inconsistent with the general notice pleading requirement. 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. . . .

301 F.3d at 1168.

Although the above-quoted language in Mendoza is dicta, it does suggest that the Ninth Circuit will not require the specific pleading mandated by Loiselle with regard to pleading the predicate act set forth in Section 1324(a) (3). Combining Mendoza's dicta with the requirements of notice pleading, Defendants' motion to dismiss on this ground is DENIED.
Defendants further argue that the allegations in the Complaint described in Paragraph 15 do not constitute violations of Section 1324(a)(3). Defendants contend that these facts, if established, at best state violations under the amendments to the Immigration and Nationality Act by the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a, which violations are not listed as "racketeering activity" for purposes of RICO.
8 U.S.C. § 1324a makes employment or continued employment of unauthorized aliens unlawful.
However, United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir.2002) and United States v. Kim, 193 F.3d 567, 573 (2nd Cir.1999), establish that proof of the practices alleged in paragraph 15 may also demonstrate a violation of Section 1324(a)(3) even if they also are violations of Section 1324a, because the same facts may establish more than one violation of law. Defendants' contentions are germane to proof rather than to the adequacy of the pleading.
It is arguable that the allegations in paragraphs 15 and 16 of the Complaint, if proven, may be sufficient circumstantial evidence to show that Defendants had actual knowledge for purposes of Section 1324(a)(3). See United States v. Mills, 597 F.2d 693, 697 (9th Cir.1979) (jury can infer actual knowledge from circumstantial evidence); see also Mester Mfg. Co. v. INS, 879 F.2d 561, 562-563 (9th Cir.1989). As to the requirement of knowledge, Defendants know exactly what alleged violations of Section 274 are charged.
Plaintiff rejoins that the allegations in paragraph 15 can be inferred to allege constructive knowledge by Defendants that the persons were illegal aliens for purposes of 8 U.S.C. § 1324(a)(3).
In so arguing, Plaintiff refers to McAllister, a criminal prosecution for violation of 8 U.S.C. § 1324 for transportation of aliens who had illegally entered the United States. To establish the violation, the United States had to prove that McAllister transported an alien "knowing that he [was] in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry in the United States occurred less than three years prior thereto." 747 F.2d at 1275. The United States proposed to carry its burden of proof by showing that McAllister made a conscious effort to avoid acquiring the knowledge and requested a jury instruction based on United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Over McAllister's objection, the district court read to the jury the proposed Jewell instruction. On appeal, McAllister 1207 argued that there was insufficient evidence to give the Jewell instruction. *1207 The Ninth Circuit disagreed with McAllister:
A Jewell instruction is properly given only when a defendant claims a lack of guilty knowledge and there are facts in evidence that support an inference of deliberate ignorance . . . As we emphasized in Murietta-Bejarano, the cases in which the facts point to deliberate ignorance are comparatively rare, and they must be carefully distinguished from instances where the defendant was merely negligent. The Government may not carry its burden by demonstrating that the defendant was mistaken, recklessly disregarded the truth, or was negligent in failing to inquire . . . Instead, the facts must support the inference that the defendant was aware of a high probability of the existence of the fact in question. . . . An instruction given without an adequate factual basis may improperly lead the jury to infer guilty knowledge without proof of conscious avoidance of the truth. . . .
The evidence in this case was sufficient to support the inference of deliberate ignorance. Several factors suggested a high probability that McAllister knew he was engaged in transporting aliens who had illegally entered within the last three years. These included the suddenness of the trip, the fact that it was made at 2:00 a.m., the lack of a specific destination, and the fact that Danny was traveling to Los. Angeles also, but would not accompany the truck. McAllister testified he neither looked in the back of the truck nor asked what it contained. He stated he did not know or attempt to learn Danny's last name. He did not ask where he was going in Los Angeles or how he

would return to San Diego. McAllister drove through the truck scales area that was closed, which avoided passing the normal border checkpoint where any aliens who had illegally entered could be discovered. His testimony concerning his reason for doing so was inconsistent and implausible and justified a reasonable inference that he did so because he believed illegal aliens were in the truck. These facts all indicate the defendant tried to close his eyes or ears to what was happening.' . . . The inference is strengthened by the agents' observation that McAllister did not appear surprised to see the aliens when the back of the truck was opened. The use of the Jewell instruction thus was not error.

747 F.2d at 1275-1276.[2]

In their reply brief, Defendants assert that Plaintiffs reliance on McAllister is misplaced, in contending that the allegations in paragraph 15 suffice to establish Defendants' constructive knowledge that the persons being hired were illegal aliens. Reiterating that Section 1324(a)(3)(A) requires "actual knowledge that the individuals are aliens", Defendants argue that Plaintiff cites no case stating that "so-called willful blindness meets the `actual knowledge' standard of [Section 1324(a)(3)]." Defendants contend:

1208

Violations of Section 274 were added predicate acts under the RICO statute (18 U.S.C. § 1961(a)) in 1996, nearly ten years after the enactment of Section 274A, the administratively enforced employer sanctions provision of IRCA, P.L. 104-132, section 433. At the time Congress added section 274(a)(3) with an actual knowledge standard, it knew that section 274A existed with a lesser `knowing' *1208 standard. See P.L. 104-208, § 202; see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (`we assume the Congress is aware of existing law when it passes legislation.'); United States v. Gonzalez-Mendez, 150 F.3d 1058, 1060 (9th Cir.1998) (`we presume that Congress enacts statutes with full knowledge of existing law.').

Defendants' argument goes to the adequacy and extent of proof of knowledge, not the adequacy of pleading. Whether or not Plaintiff will be able to produce evidence to satisfy the actual knowledge requirement for the predicate act is an issue for summary judgment or trial. Whether or not Plaintiff will be entitled to rely on the Jewell standard of proof will depend on the development of the facts and presents an issue that it is premature to resolve on a Rule 12(b)(6) motion.[3] No more is required to meet Defendants' objection than to insert the word "actual" or "actually" before the words "knowledge" or "knowing" in the Complaint.

Defendants go on to argue that the allegations in Paragraph 15 do not constitute illegal conduct. Defendants contend:

Implicit in the allegation in paragraph 15 of the Complaint is that persons who provide documents indicating that they are U.S. citizens or permanent residents at the time of hire must speak English to have attained either status.

Defendants assert that "such conclusory profiling" has been rejected by the Ninth Circuit, citing United States v. Camacho-Davalos, 468 F.2d 1382 (9th Cir.1972).

In Camacho-Davalos, defendants were convicted for conspiracy to smuggle and transport aliens into the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324, and for transporting three aliens in violation of 8 U.S.C. § 1324(a)(2). In reversing these convictions, the Ninth Circuit held:

The Government did not prove that any of the three persons named in the indictment as those whom Appellant transported were aliens. None of the alleged aliens were called as a witness. The evidence that bears on the issue was the testimony of Agent Ainscoe that all of the people in the truck were `Mexican appearing,' spoke Spanish, and did not produce immigration papers on request. The description fits thousands of American citizens. The failure to prove alienage defeated the Government's case on the three substantive counts.

468 F.2d at 1383. This addresses proof of alienage, not the charge that the individuals transported were aliens. Defendants mistakenly contend, had they imposed an English-speaking job criterion on applicants for

employment to validate their work authorization status, they would have run the risk of violating the national origin discrimination provisions of Title VII.
The Ninth Circuit has specifically held that the inability to speak English is a factor, among others, which may be considered in determining a defendant's knowledge that a person is in the United States illegally. See United States v. Holley, 493 F.2d 581, 582-583 (9th Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 112, 42 L.Ed.2d 96 (1974). [4] An inability to speak English, if combined with other evidence, may allow the inference that Defendants had 1209 knowledge that an applicant was an illegal alien. Furthermore, Plaintiff cites, Robison Fruit Ranch, Inc. v. United *1209 States, 147 F.3d 798, 799 (9th Cir.1998), which notes that the general anti-discrimination provision in Section 1324b(a)(1) "prohibits discrimination on the basis of national origin or citizenship status, except, of course, against an alien who is not authorized to work."
Defendants further argue that the allegation in Paragraph 15 that hiring workers who do not have housing indicates, that the workers are illegal aliens "is absurd on its face, and without any, legal foundation, regardless of whether the workers claimed U.S. citizen or permanent resident or some other legal status."
Because actual knowledge may be proved by circumstantial evidence, the provision of housing may, if combined with other proof, support the inference that Defendants had actual knowledge. This is a matter of proof, not pleading.
Defendants argue that the allegation in paragraph 15 that they have approved hiring criteria allowing "hiring of workers who present authorization documents which are invalid on their face because the pictures are of a different person, are upside down, are on poor quality paper, etc." does not suffice to allege "illegal conduct". Defendants contend that by asking for more or different work authorization documents or by refusing to accept the documents proffered by applicants that appeared to be facially genuine, they would have violated the "unfairimmigration employment practice provisions of IRCA", citing 8 U.S.C. § 1324b(b)(6).[5] 8 U.S.C. § 1324a(b)(1)(A) provides that an employer satisfies its verification obligation by examining a document which "reasonably appears on its face to be genuine". See Collins Foods Intern., Inc. v. U.S.I.N.S., 948 F.2d 549, 553 (9th Cir.1991).
Defendants' argument with regard to this allegation is without merit as it quibbles about evidentiary facts that, the law does not require to be pleaded.. The allegation in paragraph 15 is that the documents are invalid on their face. Whether or not this was true arid to what extent is a matter of proof, not a pleading requirement.
With regard to the allegations in paragraph 15 that Defendants hire persons whose documents are invalid on their face; that Defendants hire persons personally known to them to be in the United States illegally and using false documents; and that Defendants hire persons who have previously been employed under different identities, Defendants contend that these actions represent violations of Section 1324a and do not serve as a basis for violation of the predicate Act of racketeering specified in RICO.
Defendants' contention again is an argument of the efficacy of evidentiary facts, not pleading. See United States v. Zheng, supra; United States v. Kim, supra.
Finally, with regard to the allegation in paragraph 16, that Defendants "are often informed that large numbers of their workers are using false social security numbers by the Social Security Administration" but that "[m]ost of these workers then simply assume new identities and continue to be employed, pursuant to policies set by, the Balakians", Defendants seek dismissal because the allegations are "conclusory and unsubstantiated" and, furthermore, can only be argued to be evidence of knowledge of employment of undocumented workers in violation of Section 1323a(a).
The allegation in Paragraph 16 satisfies the notice pleading requirements of Rule 8. It provides factual detail to 1210 infer how Defendants actually knew their employees are illegal aliens. The facts, if established *1210 proved,
may suffice to constitute "actual knowledge". Again, Defendants' argument goes to proof, not pleading.
Defendants' motion to dismiss on the ground that the Complaint fails to adequately allege violation of the predicate act, Section 1324(a)(3) is DENIED.
b. 8 U.S.C. § 1324(a)(1)(A)(iii).

Defendants further argue that the Complaint does not adequately plead the predicate Act of violating 8 U.S.C. § 1324(a)(1)(A) (iii).

Section 1324 (a)(1)(A)(iii) imposes criminal penalties on any person who:

knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. . . .

Defendants argue that the Complaint fails to allege that they knew that aliens came to, entered or remained in the United States in violation of law, fails to plead any facts from which it may be inferred that Defendants knew or demonstrated reckless disregard of facts related to the illegal entry or presence of undocumented aliens in the United States, and fails to adequately plead facts as to the individual defendants' violations of Section 1324(a)(1) (A) (iii).

Defendants further argue the allegations in paragraphs 18 that "the Balakians facilitate the hiring of many of these illegal immigrants by directing their hiring-personnel [sic] to obtain housing for them" and in paragraph 22 that Defendants "conspir[ed] to provide them with housing" do not suffice to state a claim of harboring under Section 1324(a)(1)(A)(iii).

Defendants cite Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 306-307 (D.N.J.2005):

Where, as here, the statute does not define certain of its terms, courts rely on the ordinary definitions of those terms . . . Thus, to `harbor' is to `give shelter or refuge to' or `to be the home or habitat of'; to `conceal' is `to prevent disclosure or recognition of' or `to place out of sight'; and to `shield' is to `protect with or as if with a shield' or `provide with a protective cover or shelter' or `to cut off from observation' or `hide.' See Merriam-Webster On-Line Dictionary . . . None of the allegations sufficiently allege these acts.

It is difficult to determine which allegations address concealment or shielding. The relevant allegations concerning harboring, however, relate to the facts surrounding the conviction of a former Wal-Mart contractor . . . and to Plaintiff Kunc, who was `lodged' and then `put to work' by another Wal-Mart contractor. . . .

1211

These allegations are insufficient. For example, providing housing and employment may constitute `harboring' for `financial gain,' but this is not what has been alleged against Wal-Mart. Zheng, 306 F.3d at 1083 (involving undocumented aliens who lived in the defendant's house, without paying rent, and worked at the defendant's restaurant six days a week, twelve hours a day). Harboring also might be alleged where, in addition to employing undocumented aliens, a store owner, for example, also provides a back room of the store as a residence. See United States v. Singh, 261 F.3d 530, 533 (5th Cir.2001). Here, however, Plaintiffs allege that Wal-Mart hired, and continued to employ, Kunc, despite its knowledge that Kunc was not authorized to work in the United States, not that Wal-Mart harbored illegal *1211 aliens. A contractor's `lodging' of an undocumented worker and `putting him to work' falls short of alleging that Wal-Mart sheltered undocumented aliens for the purpose of concealing them and avoiding their detection by immigration authorities. While this Court might infer from the allegations in the complaint that Wal-Mart recklessly disregarded the illegal status of Plaintiffs when it employed them as janitorial or maintenance workers at their various retail locations, it is unclear what alleged conduct by Wal-Mart might constitute the concealing, harboring or shielding of illegal aliens from detection.

Defendants argue from Zavala that the allegations that Defendants conspired to provide housing to illegal aliens and directed their hiring personnel to obtain such housing does not suffice to allege violation of the predicate Act set forth in Section 1324(a)(1)(A)(iii). Defendants assert that there must be allegations that the housing was provided to illegal aliens to conceal them and avoid their detection by immigration authorities. In so arguing, Defendants cite United States v. Belevin-Ramales, 458 F.Supp.2d 409 (E.D.Ky.2006) (rejecting United States'

jury instruction for a violation of Section 1324(a)(1)(A) (iii) that the government does not have to prove that the Defendant harbored the alien with the intent to assist the alien's attempt to evade or avoid detection by law enforcement) and United States v. Kim, supra, 193 F.3d at 574 (evidence at trial was sufficient to establish that Kim knew or recklessly disregarded Farfan's status as an illegal alien and took steps designed to help her remain in his employ).
Zavala does not support dismissal of this claim because of the allegation that Defendants directed their hiring personnel to obtain housing for them, something that is not alleged in Zavala. Furthermore, Ninth Circuit precedent in United States v. Aguilar, 883 F.2d 662, 689 (9th Cir. 1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991) negates Defendants' argument.[6] In Aguilar, the district court instructed the jury that acts of concealing or shielding consisted of conduct "tending to directly or substantially facilitate an alien's remaining in the United States unlawfully with the intent to prevent detection by the Immigration and Naturalization Service" and while harboring included "conduct tending to directly or substantially facilitate the alien's remaining in the United States in violation of law". However, the district court did not require an intent to aid the unlawful alien for the purpose of evading INS detection. On appeal, the defendants contended that it was reversible error to strip "harboring" of an intent to evade detection. Id. at 689. The Ninth Circuit held in pertinent part:
In United States v. Acosta de Evans, 531 F.2d 428 (9th Cir.), cert. denied, 429 U.S. 836, 97 S.Ct. 103, 50 L.Ed.2d 101 . . . (1976), this court rejected the very claim that appellants are making in this case. The court examined the legislative history of section 1324(a) and case law from other circuits that already had addressed this issue, concluding that the word `harbor' means `to afford shelter to' and does not require an intent to avoid detection. Id. at 430. Appellants enumerate several reasons why we should `reconsider' Acosta de Evans.
1212 *1212 Id. at 690. After noting that a panel not sitting en banc has no authority to overturn Ninth Circuit precedent, the Ninth Circuit concluded that even if Acosta de Evans were incorrectly decided, the evidence established that the defendants intended to help the two aliens in question to avoid INS detection. Id.
Defendants' contention that Aguilar is not controlling because it was not a pleading case and further argument that the term "housing" does not fall within the ordinary definition of "harbor", again relying on Zavala, is without merit. Aguilar is controlling because the alleged racketeering predicate acts for purposes of RICO is "any Act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in or harboring certain aliens). . . ." If an element is not required for the criminal prosecution, it cannot be required as an element for a racketeering act under RICO.
Defendants' motion to dismiss on the ground that the Complaint does not adequately plead the predicate act of violating 8 U.S.C. § 1324(a)(1)(A)(iii) is DENIED.
3. Failure to Adequately Plead Elements of RICO
Conspiracy.
Defendants contend that the elements of a RICO conspiracy under 18 U.S.C. § 1962(d) are not adequately plead. In addition, Defendants appear to argue that the allegations concerning the alleged RICO enterprise are also deficiently pleaded.
In Baumer v. Pachl, 8 F.3d 1341 (9th Cir.1993), the Ninth Circuit affirmed the dismissal for failure to state a claim of an alleged RICO conspiracy. Although the Ninth Circuit specifically was addressing whether an allegation of aiding and abetting sufficed to state a claim for conspiracy under Section 1962(d), id. at 1347, the Ninth Circuit cited with approval cases holding an agreement is vital to a RICO conspiracy claim and that a RICO conspiracy requires the assent of each defendant, although it is not necessary that each conspirator know all of the details of the conspiracy. Id. at 1346-1347. The illegal agreement need not be express as long as its existence can be inferred from the words, actions, or interdependence of activities and persons involved. Oki Semiconductor Co. v. Wells Fargo Bank, 298 F.3d 768, 775 (9th Cir.2002). In Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), the Supreme Court, reviewing a criminal RICO conviction, rejected the contention that there

can be no conspiracy offense unless the defendant himself committed or agreed to commit the two predicate acts requisite for a substantive RICO offense under Section 1962(c), holding in pertinent part:

A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion; One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself. . . .

1213

It makes no difference that the substantive offense under § 1962(c) requires two or more predicate acts. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense. True, though an `enterprise' under *1213 § 1962(c) can exist only with one actor to conduct it, in most instances it will be conducted by more than one person or entity; and this in turn may make it somewhat difficult to determine just where the enterprise ends and the conspiracy begins, or, on the other hand, Whether the two crimes are coincident in their factual circumstances. In some cases the connection the defendant had to the alleged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the Government's case. Perhaps these were the considerations leading some of the Circuits to require in conspiracy cases that each conspirator himself commit two or more predicate acts. Nevertheless, that proposition cannot be sustained as definition of the conspiracy offense, for it is contrary to the principles we have discussed.

522 U.S. at 65-66, 118 S.Ct. 469. In Howard v. America Online, Inc., 208 F.3d 741, 751 (9th Cir.), cert. denied,
531 U.S. 828, 121 S.Ct. 77, 148 L.Ed.2d 40 (2000), the Ninth Circuit applied Salinas to review of a Rule 12(b)(6) dismissal of a civil RICO conspiracy claim:[7]

`A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.' Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 . . . (1997). A defendant must also have been `aware of the essential nature and scope of the enterprise and intended to participate in it. Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir.1993) . . . To establish a violation of section 1962(d), Plaintiffs must allege either an agreement that is a substantive violation of RICO or that the defendants agreed to commit, or participated in, a violation of two predicate offenses. . . .

In United States v. Fernandez, 388 F.3d 1199 (9th Cir.2004), the Ninth Circuit followed the rationale in Smith v. Berg, 247 F.3d 532 (3rd Cir.2001):

We adopt the Third Circuit's Smith test, which retains Reves' operation or management test in its definition of the underlying substantive § 1962(c) violation, but removes any requirement that the defendant have actually conspired to operate or manage the enterprise itself. Under this test, a defendant is guilty of conspiracy to violate § 1962(c) if the evidence showed that she `knowingly agree[d] to facilitate a scheme which includes the operation or management of a RICO enterprise.' Smith, 247 F.3d at 538.

388 F.3d at 1230.

In moving for dismissal, Defendants contend that the Complaint's allegations of conspiracy are conclusory and preclude them from knowing who the conspirators are, what conduct they carried out as part of the alleged conspiracy, and whether there was a common economic purpose or benefit derived.

Plaintiff responds that the Complaint adequately alleges a Section 1962(d) conspiracy. Plaintiff points to the allegation that the Balakians "have personally approved the hiring procedures" alleged in paragraphs 15-16, which are alleged to ensure the employment of "vast numbers" of illegal aliens and that the Balakians have 1214 carried out the Illegal Immigrant Hiring Scheme for the last four years. *1214 Plaintiff contends that these allegations adequately allege an agreement among the Balakians to commit well over two predicate acts of hiring and harboring illegal aliens.[8]
Plaintiff also refers to the allegations at paragraphs 24-25 that the "agreement was further to commit these racketeering acts through the Fruit Patch enterprise (and other unnamed entities the Balakians own and operate in the same manner)." With regard to Defendants' assertion that the Complaint fails to allege the identities of the conspirators or how Defendants and the alleged conspirators participated the alleged conspiracy, Plaintiff contends:
The Complaint . . . describes in as much detail as Plaintiffs have prior to discovery, about how the Balakians carry out the Illegal Immigrant Hiring Scheme. The, names of all co-conspirators need not be, pled, nor must the Complaint spell out what each conspirator `did to participate in the conspiracy,' as the Salinas court specifically held. All that is required is that the Complaint alleges each conspirator `know about and facilitate the scheme,' which is plainly alleged.
The Complaint does not adequately allege a conspiracy under Section 1962(d). Although the allegations concerning the alleged conspiracy by the Balakians and Roberto Olivarez in connection with Fruit Patch Inc. suffice to withstand Rule 12(b)(6) dismissal given the requirements of notice pleading, the allegations of conspiracy with unnamed entities and unnamed conspirators involved with those unnamed entities does not comply with notice pleading and essentially allows Plaintiff to conduct a fishing expedition to substantiate these allegations. A conspiracy is an agreement to commit an unlawful act, coupled with an overt act in furtherance of the conspiracy.
Therefore, to the extent that the Complaint purports to allege a RICO conspiracy by unnamed entities and unnamed conspirators involved with those entities, Defendants' motion to dismiss is GRANTED with leave to amend.[9]
1215 *1215 B. Plaintiff's Motion for Sanctions.
Plaintiff moves for sanctions against Defendants and their counsel, Monte B. Lake, pursuant to Rule 11(b)(2), Federal Rules of Civil Procedure, for filing the Motion to Dismiss without citing Mendoza v. Zirkle Fruit Co., supra, 301 F.3d 1163. The Motion for Sanctions seeks an order striking Defendants' Motion to Dismiss and an award of attorneys' fees incurred by Plaintiff in opposing the Motion to Dismiss and for preparing the Motion for Sanctions.
Rule 11(b)(2) provides in pertinent part:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a . . . written motion . . ., an attorney .. is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, 0907
. . . . .
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . . .
Rule 11(c) provides in pertinent part:
If . . . the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
In United States v. Stringfellow, 911 F.2d 225, 226 (9th Cir.1990), the Ninth Circuit held:

The failure to cite relevant authority, whether it be case law or statutory provisions, does not alone justify the imposition of sanctions. `[N]either Rule 11 nor any other rule imposes a requirement that the lawyer, in addition to advocating the cause of his client, step first into the shoes of opposing counsel to find all potentially contrary authority, and finally into the robes of the judge to decide whether the authority is indeed contrary or whether it is distinguishable.' Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1542 (9th Cir.1986).
However, if the omitted case law and statutory provisions would render the attorney's argument frivolous, he or she `should not be able to proceed with impunity in real or feigned ignorance of [them]; id., and sanctions should be upheld. An argument contained in a motion is frivolous under Rule 11 if it is unreasonable when viewed from the perspective of `a competent attorney admitted to practice before the district court' Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir.1986); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2nd Cir.1985) (` [W]here it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify, or reverse the law as it stands, Rule 11 has been violated.').
Plaintiff argues that the Complaint in this action "makes precisely the same allegations as were made in 1216 Mendoza; that *1216 the defendants knowingly employ large numbers of illegal immigrants in violation of sec.
274 of the Immigration and Nationality Act which is a RICO predicate offense" and that no reasonable lawyer could assert that the Complaint fails to state a claim and omit citing Mendoza. Plaintiff contends that Mendoza directly applies and has not been modified by any other Ninth Circuit authority.
Plaintiff's motion is DENIED. Defendants have not violated have not violated Rule 11 as interpreted by Stringfellow by omitting to cite Mendoza in their opening brief. There are substantial differences between the Complaint at issue in Mendoza and the Complaint in this action. The basis of Defendants' motion to dismiss includes that Plaintiff has not and cannot plead the necessary elements of the RICO predicate acts upon which he intends to rely and because Plaintiff provides insufficient factual notice to Defendants of the basis for these claims. Finally, the issues before the Ninth Circuit in Mendoza involved standing, an issue not raised in this action.
C. Conclusion.
For the reasons set forth above:
1. Defendants' motion to dismiss is GRANTED IN PART WITH LEAVE TO AMEND AND DENIED IN PART.
2. Plaintiff shall file a First Amended Complaint in compliance with this Order within 30 days of the filing date of this Order.
3. Plaintiffs motion for sanctions is DENIED.
IT IS SO ORDERED.
[1] Defendants assert that no such provision exists and that Plaintiff intended to allege violations of 8 U.S.C. § 1324(a)(3) (A).
[2] Plaintiff cites United States v. Shannon, 137 F.3d 1112, 1117-1118 (9th Cir.1998), which acknowledged that a Jewell instruction is improper if the evidence demonstrates no knowledge or actual knowledge, but affirmed the giving of the instruction because the evidence was in dispute.
[3] No opinion is expressed whether the willful blindness standard will be applicable to satisfy the actual knowledge element of the predicate act.
[4] Whether the inability to speak English alone is an issue of proof, not an issue which must be resolved at this stage of the case.

[5] The correct citation is to 8 U.S.C. § 1324b(a)(6).
[6] Not relevant to resolution of the motion to dismiss is the Ninth Circuit's discussion in Aguilar concerning defendants' conviction of smuggling in violation of 8 U.S.C. § 1324(a)(2)(B) (iii). That aspect of the Aguilar decision has been superseded by statute. See United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir.2002), cert. denied, 538 U.S. 969, 123 S.Ct. 1768, 155 L.Ed.2d 526 (2003).
[7] Defendants contend that Salinas is inapplicable because it involved a challenge to jury instructions in a criminal case, not the pleading requirements for a civil RICO Section 1962(d) conspiracy. However, Ninth Circuit authority applies Salinas to civil RICO conspiracies.
[8] Plaintiff, citing Norfolk Monument Co., Inc. v. Woodlawn Mem. Gardens, Inc., 394 U.S. 700, 704, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969), contends that "[i]n RICO and antitrust cases, conspiracies are typically proven not by direct evidence of agreement, which seldom exists, but of `[b]usiness behavior. . . . '."
In Norfolk, the Supreme Court reversed summary judgment for defendants in an antitrust case, holding in pertinent part:
Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was "a wide divergence of prices" charged for installation "which would completely negative any systematic scheming or conscious parallelism." . . . The petitioner's complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately "excessive and unreasonable" fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner's principal officer "admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants . . ." ... But it is settled that "[n]o formal agreement is necessary to constitute an unlawful conspiracy," . . . and that "business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.". . . .
394 U.S. at 703-704, 89 S.Ct. 1391.
Plaintiff's citation to Norfolk is not relevant to the determine the adequacy of pleading the agreement for purposes of a Section 1962(d) conspiracy under RICO. Norfolk involved antitrust, not RICO. Although Plaintiff asserts that Norfolk's holding applies to RICO cases, he cites no specific authority supporting that position.
[9] Defendants, citing Chang v. Chen, 80 F.3d 1293 (9th Cir.1996), contend that it is impossible to determine if the alleged RICO enterprise has an ascertainable structure separate and apart from the structure inherent in the conduct of the pattern of racketeering activity when no facts are provided regarding the co-conspirators. Chang v. Chen, addressed "the minimum requirements for an associated-in-fact enterprise." Id. at 1297. As Plaintiff notes, an "association-in-fact" enterprise is not alleged in the Complaint. Fruit Patch, Inc. and the other unnamed Balakian owned and operated entities are alleged to be the enterprise(s).
Save trees - read court opinions online on Google Scholar.

 
 Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)

2007 WL 1649911 United States District Court,
E.D. California.
Jose HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff, v.
Leo BALAKIAN, Anthony Balakian, and Vince Balakian, Defendants.
No. CV-F-06-1383 OWW/DLB. | June 1, 2007.
Attorneys and Law Firms
Nicholas J.P. Wagner, Law Offices of Wagner & Jones, Michael Goldberg, The Goldberg Law Firm, Fresno, CA, Howard W. Foster, Pro Hac Vice, Johnson & Bell Ltd., Chicago, IL, for Plaintiff.
Christine M. Cooper, Pro Hac Vice, Monte B. Lake, Pro Hac Vice, McGuiness Norris & William, LLP, Washington, DC, Jan Leslie Kahn, Kahn, Soares & Conway, LLP, Hanford, CA, for Defendants.
Opinion
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES (Doc. 50)
OLIVER W. WANGER, United States District Judge.
*1 Before the court is Plaintiff’s motion to strike pursuant to Rule 12(f), Federal Rules of Civil Procedure, the seven affirmative defenses asserted by Defendants in their Answer to Plaintiff’s First Amended Complaint (FAC).
The FAC is a class action for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) on behalf of “all legal hourly-paid workers, who have been employed by Fruit Patch, Inc. of Reedley, California. The FAC alleges that Plaintiff “was legally authorized to be employed in the U.S. when he was employed by Fruit Patch, Inc., as an hourly paid farmworker”, that his “wages as an agricultural worker for Fruit Patch, Inc. were set by the Balakians at a level which was depressed as a direct result of the Illegal Hiring Scheme they perpetrated”, FAC ¶ 3, and that “if the Balakians were not hiring large numbers of illegal immigrants, their business would have to pay the Plaintiff Class significantly higher wages, and their profits would be sharply reduced.” FAC ¶ 14.

A. GOVERNING STANDARDS. Rule 12(f), Federal Rules of Civil Procedure provides that “the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Rule 8(b), Federal Rules of Civil Procedure, provides that “[a] party shall state in short and plain terms the party’s defenses to each claim asserted .... “ Rule 8(c) requires the affirmative pleading of 19 separate defenses and of “any matter constituting an avoidance or affirmative defense.”
“Affirmative defenses plead matters extraneous to the plaintiff’s prima facie case, which deny plaintiff’s right to recover, even if the allegations of the complaint are true.” FDIC v. Main Hurdman, 655 F.Supp. 259, 262 (E.D.Cal.1987), citing Gomez v. Toledo, 446 U.S. 635, 640-641, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). “The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir.1979), citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As explained in Wright & Miller, Federal Practice and Procedure: Civil 3d § 1381, pp. 421-425:
Motions to strike a defense as insufficient are not favored by the federal courts because of their somewhat dilatory and often harassing character. Thus, even when technically appropriate and well-founded, Rule 12(f) motions often are not granted in the absence of a showing of prejudice to the moving party. Nonetheless, these motions are a useful and appropriate tool when the parties disagree only on the legal implications to be drawn from uncontroverted facts. But even when the defense seems to present a purely legal question, federal courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as best determined only after further development by way of discovery and a hearing on the merits, either on a summary judgment motion or at trial.
1

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)
B. MERITS OF MOTION.
1. FIRST AFFIRMATIVE DEFENSE. *2 As the First Affirmative Defense, the Complaint alleges “Plaintiff fails to state a claim upon which relief may be given.”
Plaintiff, citing Quintana v. Baca, 233 F.R.D. 562, 563 (C.D.Cal.2005), contends that a failure to state a claim upon which relief can be granted is not a valid affirmative defense. Quintana v. Baca held:
The Court agrees with the plaintiff that this defense is not an affirmative defense that must be pled or waived. Nor all contentions that attack a plaintiff’s cause of action are affirmative defenses. Rather, a defense is an affirmative defense if it will defeat the plaintiff’s claim even where the plaintiff has stated a prima facie case for recovery under the applicable law ... The first affirmative defense directly attacks the merits of the plaintiff’s case, and therefore is not subject to the requirements of Fed.R.Civ.P., Rule 8(c).
However, Rule 12(h)(2), Federal Rules of Civil Procedure, provides:
A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial of the merits.
One of the pleadings permitted by Rule 7(a) is an Answer. Consequently, Quintana’ s reasoning is legally inaccurate and not persuasive. Plaintiff’s motion to strike the First Affirmative Defense on this ground is DENIED.
Plaintiff further moves to strike the First Affirmative Defense because the Order filed on March 27, 2007 concluded that Plaintiff had stated a claim upon which relief can be granted under RICO. Therefore, Plaintiff contends, this ruling is now law of the case. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 815-816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (‘As most commonly defined, the doctrine of the law of the case posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case”).

Defendants respond that the March 27, 2007 Order does not preclude the First Affirmative Defense because the Court has not been asked to rule on the sufficiency of the allegations of the First Amended Complaint. Further, referring to Jones v. Tozzi, 2006 WL 2472752 (E.D.Cal.2006), Defendant argues that Plaintiff’s implicit assumption that the law of the case doctrine precludes a challenge to an amended complaint when the original complaint has survived a motion to dismiss, is incorrect.
Plaintiff replies that Defendants should have brought a Rule 12(b)(6) motion to challenge the sufficiency of the First Amended Complaint and further notes that the plaintiff in Jones v. Tozzi made substantially different allegations in his amended complaint.
The motion to strike the First Affirmative Defense is DENIED. There is no prejudice to Plaintiff.
2. SECOND AND THIRD AFFIRMATIVE DEFENSES. The Second Affirmative Defense alleges: “Plaintiff has not sustained damages as alleged in the Amended Complaint.” The Third Affirmative Defense alleges: “Plaintiff has not suffered any injury proximately cause by any conduct alleged in the Amended Complaint under the Racketeer Influenced and Corrupt Organizations Act.”
*3 Plaintiff moves to strike these affirmative defenses on the ground that they merely deny the allegations in the First Amended Complaint that Plaintiff must prove to prevail on his claims.
Defendants argue that these affirmative defenses should not be stricken because they are not “immaterial, impertinent, or scandalous”, their presence in the Answer does not prejudice Plaintiff in any way, and whether notice of these defenses should be in the Answer “is an example of unnecessary formalism.”
While it appears that Plaintiff’s position is legally correct, it also appears that Plaintiff’s motion with regard to these affirmative defenses is, as Defendant asserts, an “unnecessary formalism” wasting the time and resources of the parties and the Court. The motion is DENIED without prejudice to resolution by dispositive motion.
3. FOURTH AFFIRMATIVE DEFENSE. The Fourth Affirmative Defense alleges: “Plaintiff’s claims are barred, in whole or in part, because at all times during his employment plaintiff was paid a lawful wage and a wage for which he agreed to work.”
2

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)

Plaintiff argues that the Fourth Affirmative Defense should be stricken because the fact that he was paid a legal wage will not defeat the RICO claim, as is required for a valid affirmative defense. See discussion supra. The FAC does not allege that the wage paid to Plaintiff was not “legal” but, rather, that the wage was lower than it would have been had Defendants not hired illegal aliens. Plaintiff contends that the fact he agreed to work at a legal wage does not defeat the RICO claim because the RICO claim cannot be waived or defeated by Plaintiff’s conduct.
Plaintiff cites case authority that broad common law defenses such as unclean hands are not recognized in actions under federal statues, such as antitrust and securities fraud.
In Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), the Supreme Court held:

There is nothing in the language of

the antitrust acts which indicates

that Congress wanted to make the

common-law in pari delicto

doctrine a defense to

treble-damages actions ... We have

often

indicated

the

inappropriateness of invoking

broad common-law barriers to

relief where a private suit serves

important public purposes.

In Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985), the District Court dismissed an action by investors for violation of Section 10(b) of the Securities Exchange Act and Rule 10b-5, on the ground that, because the investors themselves had violated the same laws under which recovery was sought by trading on inside information, they were in pari delicto and thus were barred from recovery. The Ninth Circuit reversed the District Court. The Supreme Court affirmed the Ninth Circuit, holding in pertinent part:
Nothing in Perma Life suggested that public policy considerations should govern only where Congress expressly provides for private remedies; the classic formulation of the in pari delicto doctrine itself required a careful consideration of such implications before allowing the defense ... Moreover, we repeatedly have emphasized that implied private actions provide ‘a most effective weapon in the enforcement’ of the securities laws and are ‘a necessary supplement to Commission action.’ ... In addition, we have eschewed rigid common-law barriers in construing the securities laws ... We therefore conclude that the views expressed in Perma Life apply with full force to implied causes of action under the federal securities laws. Accordingly, a

private action for damages in these circumstances may be barred on the grounds of the plaintiff’s own culpability only where (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public.
*4 472 U.S. at 310-311.
Plaintiff acknowledges that neither the Ninth Circuit or the Supreme Court have considered the applicability of the Perma Life line of cases to a private claim for violation of RICO. Plaintiff cites In re National Mortgage Equity Corp. Mortgage Pool Certificates Securities Litigation, 636 F.Supp. 1138, 1156 (C.D.Cal.1986):
This argument although not framed as such is, in essence, the assertion of the in pari delicto defense and can be answered by another analogy to antitrust law. The Supreme Court has held that the common law doctrine of in pari delicto is not a defense in antitrust treble damage actions. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 ... (1968). The Court cautioned against ‘invoking broad common-law barriers to relief where a private suit serves important public purposes.’ Id. at 138 ... Thus, even though a plaintiff seeking treble damages in an antitrust suit may be as morally reprehensible as the defendant, his suit nonetheless should be encouraged to advance the predominant public policy in favor of competition. Id. at 139 ....
The reasoning is equally applicable to RICO treble damages actions. The fact, if it be a fact, that B of A may to some extent be embarking on this litigation with unclean hands should not by itself prohibit the Bank from bringing an action that otherwise advances RICO’s broad anti-racketeering policies.
Plaintiff also cites the “Order re Affirmative Defenses” filed on February 23, 2004 in Mendoza v. Zirkle Fruit Company, No. CY-00-3024-FVS, United States District Court for the Eastern District of Washington:
COMMON LAW DEFENSES
The defendants allege the plaintiffs knew about the presence of illegal workers at both Zirkle Fruit Company and Matson Fruit Company. The defendants claim the plaintiffs had a duty to report immigration violations to their employers or to an appropriate government agency. To the extent the plaintiffs failed to do so, say the defendants, they are barred from recovery by the doctrines of contributory fault, contributory negligence, waiver, consent, acquiescence, ratification, estoppel, in pari delicto, unclean hands,
3

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)
equal involvement, payment, failure to mitigate, and/or assumption of the risk.
...
Neither the Supreme Court nor the Ninth Circuit has decided whether the affirmative defenses listed above may be invoked in a civil RICO case. Case law in other circuits is inconclusive. See, e.g., Sikes v. Teleline, Inc., 281 F.3d 1350, 1366 n. 41 (11th Cir.2002) (positing that a gambler might be barred by the doctrine of unclean hands from bringing a civil RICO claim predicated on illegal gambling because it takes two parties to gamble); Roma Const. Co. v. aRusso, 96 F.3d 566, 575 (1st Cir.1986) (even if RICO’s civil remedies are limited to innocent parties, the district court erred by dismissing the plaintiffs’ claims); Northeast Women’s Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1355-56 (3rd Cir.) (unclean hands doctrine inapplicable where plaintiff’s unlawful conduct was insufficiently related to the litigation), cert. denied, 493 U.S. 901, 110 S.Ct. 261, 107 L.Ed.2d 210 ... (1989). Since the law in this area is unsettled, district courts have looked to antitrust cases for guidance. See, e.g., In re National Mortgage Equity Corp. Mortgage Pool Cert. Sec. Litig., 636 F.Supp. 1138, 1156) (C.D.Cal.1986). The defendants challenge the validity of the analogy to antitrust cases. They submit the policy considerations that drive antitrust jurisprudence are much different from the policy considerations that drive civil RICO jurisprudence. The defendants’ argument is not without merit. There are significant differences between the Clayton Act and RICO. See Loren E. Kalish, Comment, Plaintiffs in Complicity: Should there be an innocent party requirement for civil RICO actions?, 47 Emory L.J. 785, 802-08 (1998). However, even if the analogy to the Clayton Act is imperfect, Roma Constr. Co., 96 F.3d at 583 (Lynch, J., concurring), the fact remains that the Supreme Court has relied upon Clayton Act cases when interpreting RICO. Id. at 581; Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1311 (9th Cir.1992), cert. denied, 507 U.S. 1004, 113 S.Ct. 1644, 123 L.Ed.2d 266 ... (1993). Given this well-established practice, antitrust jurisprudence appears to provide the best guidance with respect to the Supreme Court’s likely response to a request to incorporate common-law defenses into civil RICO actions.
*5 One of the common-law defenses that has been discussed in federal antitrust cases is the defense of in pari delicto, which means literally ‘of equal fault.’ ... In Perma Life, the Supreme Court held that Congress did not intend to incorporate this defense into antitrust laws. ‘We have often indicated,’ said the Supreme Court, ‘the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes.’ ... Despite this observation, five Justices opined, in separate opinions, ‘that where a

plaintiff truly [bears] at least substantially equal responsibility for the violation, a defense based on such fault-whether or not denominated in pari delicto-should be recognized in antitrust litigation.’ Batemen Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 308-09, 105 S.Ct. 2622, 86 L.Ed.2d 215 ... (1985) ... In Bateman Eichler, the Supreme Court addressed the issue that had been left open in Perma Life. It held a private action for damages based upon the violation of federal securities laws may be barred on the grounds of the plaintiff’s own culpability if the defendant proves ‘(1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public.’ Id. at 310-11 ... The Supreme Court continues to adhere to the Bateman Eichler test. Pinter v. Dahl, 486 U.S. 622, 633-35, 108 S.Ct. 2063, 100 L.Ed.2d 658 ... (1988).
Assuming the Supreme Court continues to look to antitrust cases when interpreting RICO, it is unlikely the Supreme Court will approve the broad common-law barriers to relief proposed by the defendants. Consequently, the affirmative defenses listed above will be stricken. This is not to say the plaintiffs’ behavior as job applicants and employees is irrelevant. It seems likely that, in actions such as this, the Supreme Court will adopt the Bateman Eichler test, or some variation thereon. Whether the defendants will be able to qualify for a jury instruction based on Bateman Eichler is doubtful, but not impossible. Since it cannot be said as a matter of law, that the defendants will be unable to satisfy the requirements of Bateman Eichler, the defendants will be allowed to amend their answers to add this defense.
Relying on these cases, Plaintiff argues that the Fourth Affirmative Defense must be stricken:
If the Balakian’s [sic] argument, that a plaintiff consents, and therefore waives his right to later sue, by purchasing something at a anticompetitive price, then no antitrust action could ever prevail, because this is the factual scenario in the majority of antitrust disputes ... Accordingly, the agreement to purchase as good or service at an anticompetitive price is not an antitrust defense, and the same rule applies in RICO. Mr. Hernandez did not waive his right to challenge his wage rate by accepting it.
4

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)

*6 Defendants respond that Plaintiff has misread the Fourth Affirmative Defense because it does not pertain to waiver or consent but to a “different and much broader point.” Defendants assert:

The labor market in which both Plaintiff and the Balakians participated is vast and is highly regulated by the Federal Government and the State of California. Plaintiff effectively concedes that the Balakians complied with all of these laws when Plaintiff argues that the alleged wrong was not that he was paid below applicable statutory limits, but that the wage he was paid was lower than it otherwise would have been ... The Fourth Defense goes to any claim, direct or indirect, that the payment of wages was unlawful as a result of some antecedent alleged wrongdoing. It is clearly proper. As with the other defenses, Defendant will be able to litigate this defense even if stricken from the Answer. The Court should avoid flyspecking the pleadings, permit discovery to identify the precise issues for trial, and decline to strike the Fourth Defense.

Plaintiff replies that, because Defendants did not respond to the grounds asserted by Plaintiff for striking the Fourth Affirmative Defense, i.e., it is not valid to defeat the RICO claim, and a waiver defense is not available under RICO, Defendants have conceded the validity of these grounds. Plaintiff further replies that Defendants’ position is really a denial of fact and should be stricken as redundant.1

1

In a footnote to the reply brief, Plaintiff argues that the

Fourth Affirmative Defense is ambiguous and should

be stricken on this basis. Because this ground was

raised for the first time in the reply brief, it is not

considered.

Because this is an unsettled area of the law Plaintiff’s motion to strike the Fourth Affirmative Defense is DENIED. Whether the Fourth Affirmative Defense is valid will depend on the development of facts through discovery, summary judgment and/or trial. No prejudice results.

4. FIFTH AFFIRMATIVE DEFENSE. The Fifth Affirmative Defense alleges: “Assuming, arguendo, that plaintiff sustained any injury, he failed to mitigate it.”
Plaintiff moves to strike the Fifth Affirmative Defense because it fails to provide any real notice as to how Plaintiff failed to mitigate his damages.
Defendants respond that the Fifth Affirmative Defense provides as much notice to Plaintiff as is available to Defendants without discovery. Defendants assert that Plaintiff could have sought to work for another employer if he wanted to make more money and that the details of Plaintiff’s efforts will be a subject for discovery.
Relying on the cases cited in connection with the Fourth Affirmative Defense, Plaintiff further contends that failure to mitigate is not a valid defense to a RICO claim.
However, as Plaintiff acknowledges and Defendants point out, the United States District Court for the Eastern District of Washington recognized a failure to mitigate affirmative defense to a civil RICO action in Marin v. Evans, 2007 WL 655456 (E.D.Wash.2007).2

2

Plaintiff asserts that the Eastern District of Washington

“strayed” from its prior holding in Mendoza v. Zirkle

Fruit Co. However, the two decisions were issued by

different District Court Judges. A District Court Judge

is not bound by a decision of another District Court

Judge, even in the same district.

In Marin v. Evans, the District Court refused to strike the affirmative defense of duty to mitigate:
Plaintiffs argue that a duty to mitigate defense cannot be asserted against a RICO claim. RICO prohibits individuals or enterprises from engaging in a pattern of racketeering activity ... The purpose of RICO is to protect: (1) lawful enterprises from being utilized by individuals for unlawful purposes; and (2) the public from individuals who would use an enterprise as a tool to facilitate illegal activity ....
*7 The Court did not find any federal case law dealing with the precise issue of whether a duty to mitigate is a legally sufficient defense against a RICO claim. Generally, when there is an unsettled area in RICO law, the federal courts can turn to antitrust law for guidance. Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1311 (9th Cir.1992). In dealing with the question of whether broad common law defenses are allowed in antitrust claims, the courts examine whether the common law defense controverts the primary purposes
5

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)
underlying the particular federal statute in question. Perma Life Mufflers, Inc. v. Int’l Parts Corp. ....
Plaintiffs cite to Perma Life and Bateman Eichler, Hill Richards, Inc. v. Berner .... for the proposition that a failure to mitigate ‘is not a recognized affirmative defense to RICO claims.’ In Perma Life, the Supreme Court rejected the idea that courts have the power to undermine the antitrust acts by denying recovery to injured parties merely because they were in pari delicto ... There, the Supreme Court indicated that it would be inappropriate to invoke broad common-law barriers to relief where a private suit served important purposes ... More importantly, however, the Court reserved ruling on whether truly complete involvement and participation could be a basis for barring a plaintiff’s antitrust action because the record before the Court did not support such a finding ....
In so ruling, the Supreme Court in Perma Life implied that a factual inquiry would be necessary to determine whether an affirmative defense based on the plaintiff’s culpability could be asserted against an antitrust claim. This conclusion finds further support in Bateman. Indeed, the Supreme Court in Bateman explicitly held that a[sic] in pari delicto [sic] could be asserted in a federal securities case when certain factual circumstances were present ....
Moreover, other circuits have recognized the affirmative defense of failure to mitigate in claims brought under federal statutes. See In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 149-50 (2nd Cir.2001) (noting that a duty to mitigate in antitrust claims serves the important purpose of preventing plaintiffs from seeking treble damages and profiting by refusing to mitigate) (Jacobs, CJ., dissenting); Fishman v. Estate of Wirtz, 807 F.2d 520, 559 (7th Cir.1987) (the plaintiff is required to mitigate damages, but the plaintiff is not required to engage in undue risk to mitigate); Litton Systems v. AT & T, 700 F.2d 785, 820 n. 47 (2nd Cir.1983) (stating without explanation that a defendant has a duty to mitigate in an antitrust claim); see also Bieter Co. v. Blomquest, 987 F.2d 1319, 1329 (8th Cir.1993) (appearing to operate under the assumption that a duty to mitigate is a valid defense in RICO claims).
Here, there is no case law on point that directly supports the argument that the Court should rule, as a matter of law, that the affirmative defense of failure to mitigate can never be asserted in a civil RICO claim. Even if the Court were to analogize to an antitrust case, those cases relied upon by Plaintiffs do not establish that such an affirmative defense can never be asserted as a matter of law. Instead, these cases support the conclusion that the Court should consider the facts of the case in determining whether a defendant can assert

an affirmative defense at trial. Thus, the Court declines to strike this affirmative defense at this stage in the proceedings.
*8 Plaintiffs argue that the law regarding application of the failure to mitigate defense is “unclear” and that Marin is wrongly decided. Plaintiff asserts that “most” of the cases cited in Marin as allowing the defense in an antitrust case predate Bateman Eichler.
Plaintiff’s position is without merit. Bateman Eichler was decided in 1985. Only one of the cases cited in Marin was decided before Bateman Eichler. Further, as Marin notes, Bateman Eichler does not preclude the in pari delicto defense in a securities violation case as a matter of law.
Plaintiff further argues that Bieter Co. v. Blomquest, supra, 987 F.2d at 1329, cited in Marin, does not actually hold that failure to mitigate is an available affirmative defense to a civil RICO claim. The Eighth Circuit, discussing RICO’s requirement of injury to “business or property”, held:
Other courts have recognized that civil RICO is ‘a statutory tort remedy-simply one with particularly drastic remedies’ ... It follows, then, that limitations on damages suggested by tort law would also apply to civil RICO. Defendants’ arguments that Bieter’s failure to reapply results in no cognizable injury under RICO would be better made to a jury under the rubric of failure to mitigate damages ... Through we find that Bieter was injured, a jury would certainly be expected to consider evidence of the potential uses of Bieter’s property that may not have been pursued, as opposed to simply granting damages for the difference between the undeveloped and developed property values.
Plaintiff further argues that Bhan v. NME Hospitals, Inc., 669 F.Supp. 998, 1014 (E.D.Cal.1987), aff’d, 929 F.2d 1404 (9th Cir.1991), cited by Defendants in opposition to Plaintiff’s motion, does not recognize the affirmative defense of failure to mitigate in an antitrust action:
Bhan has demonstrated without a doubt that he suffered actual damages as a result of the alleged conspiracy of the defendants. The conduct in issue destroyed Bhan’s business at Manteca Hospital, causing him to lose all that he would have made at the Hospital absent the decision to prohibit nurse anaesthetists from providing anesthesia. The fact that Bhan was able to mitigate his damages by successfully creating another business does not negate the fact that he sustained damages. Indeed,
6

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)
the principle of mitigation of damages presumes that there are damages to mitigate. To provide an antitrust violator immunity from suit simply because the victim successfully mitigates his damages would undermine the antitrust laws’ broad goal of restraining anticompetitive conduct.
Given the unsettled state of the law and the holding in Bateman Eichler, Plaintiff’s motion to strike the Fifth Affirmative Defense is DENIED. Failure to mitigate does not negate the claim; rather it requires that the claimant not act or omit to unjustifiably increase damages. Whether the Fifth Affirmative Defense is valid will depend on the development of facts through discovery, summary judgment and/or trial.
5. Sixth Affirmative Defense. *9 The Sixth Affirmative Defense alleges: “To the extent that plaintiff alleges that this is a class action, the prerequisites to a class action provided by Fed.R.Civ.P Rule 23(a) do not exist in this action.”
Plaintiff moves to strike on the ground that this is not a valid affirmative defense. Plaintiff notes that Rule 23(c)(1)(A) provides that class certification must occur “at an early practicable time”. Therefore, the issue of class certification will be decided before resolution of the merits of this action and will not defeat Plaintiff’s underlying RICO claim.
Defendants respond that the Sixth Affirmative Defense “is a short and plain way of emphasizing that the prerequisites for class certification and whether Plaintiff can meet them is a significant issue.” Because, Defendants contend, Plaintiff is not prejudiced by the Sixth Affirmative Defense, it should not be stricken.
This is not an affirmative defense. The issue will be resolved in Rule 23 certification proceedings. Nonetheless, there is no prejudice to Plaintiff and striking this affirmative defense is an empty formalism. Therefore, Plaintiff’s motion to strike is DENIED.
6. Seventh Affirmative Defense. The Seventh Affirmative Defense alleges: “To the extent that plaintiff seeks to pursue any claims beyond the applicable statute of limitations period, those claims may be barred by a statute of limitations defense.”
Plaintiff seeks to strike this affirmative defense as “frivolous .” The statute of limitations for civil RICO is

four years. Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). Plaintiff asserts the FAC alleges that Defendants violated civil RICO continuously, starting in 2002. This action was commenced on October 5, 2006.

However, as Defendants note, the FAC does not specifically allege that the Illegal Hiring Scheme commenced in 2002. Paragraph 25 of the FAC alleges: “The Scheme is ongoing, open-ended, and has been perpetuated continuously for the last four years.”

In opposition, Defendants cite Pincay v. Andrews, 238 F.3d 1106 (9th Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 195, 151 L.Ed.2d 137 (2001):
We have continuously followed the ‘injury discovery’ statute of limitations rule for civil RICO claims ... Under this rule, ‘the civil RICO limitations period begins to run when a plaintiff knows or should know of the injury that underlies his cause of action.’ ... Thus, the ‘injury discovery’ rule creates a disjunctive two-prong test of actual or constructive notice, under which the statute begins running under either prong.
Id., at 1109.3 In addition, “a new cause of action accrues for each new and independent injury, even if the RICO violation causing the injury happened more than four years before.” Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir.1996).

3

Pincay notes that the “injury discovery” rule has not

been overruled by the Supreme Court although the

Supreme Court has explicitly reserved the question of

whether the standard is correct. Id., at n. 3, citing

Rotella v. Wood, 528 U.S. 549, 554 n. 2, 120 S.Ct.

1075, 145 L.Ed.2d 1047 (2000).

In Marin v. Evans, supra, 2006 WL 655456, the District Court ruled:
Plaintiffs argue that Defendants’ statute of limitation defense is legally insufficient as a matter of law and should be stricken ... The Ninth Circuit follows the ‘injury discovery’ rule which has two components. Grimmett v. Brown, 75 F.3d 506, 510-512 (9th Cir.1996). First, the four year statute of limitations period begins to run when a plaintiff knows, or should have known of his or her injury. Id. at 510. Second, ‘a new cause of action accrues for each new and independent injury, even if the RICO violation causing the injury happened more than four years before.’ Id.
*10 Plaintiffs’ complaint alleges that ‘defendants have depressed their wages by knowingly employing vast numbers of illegal immigrants, more than 5,000 in the last four years.’ ... Plaintiffs’ complaint was filed on
7

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007)
September 29, 2006. Given that it is possible that there may be questions of fact regarding when Plaintiffs knew about the injury, and whether Plaintiffs are relying on the ‘new and independent injury’ to assert the basis for the RICO violations that occurred prior to 2002, it is premature to strike this affirmative defense at this stage of the proceedings.
Defendants argue that the Marin rationale applies to Plaintiff’s motion to strike the Seventh Affirmative Defense: “Given the apparent absence of any ‘new and independent’ injury, there may definitely be questions of fact when Plaintiff knew or should have known about his alleged injury and the relationship of that injury to any conduct falling within the limitations period.” Defendants note also that Plaintiff’s discovery requests seek information for the past ten years.
Plaintiff responds that Defendants’ reliance on Marin is misplaced because Marin omitted any discussion of Trollinger v. Tyson Foods, Inc., 2006 WL 319022 (E.D.Tenn.2006). Plaintiff’s counsel represents that he was counsel for the Plaintiff in Marin. Plaintiff’s counsel represents: “The issue of the ‘discovery rule’ was not briefed (or raised) by either side in Marin v. Evans. If the issue was raised, Plaintiffs would have referred the Court to Trollinger v. Tyson Foods, Inc., which decided this exact issue in the context of a motion for summary judgment.”
However, the Plaintiff in Marin did move to strike the statute of limitations affirmative defense. Although the Defendant in Marin did not respond, it is apparent that the District Court conducted its own research concerning the position of the Ninth Circuit.
In Trollinger v. Tyson Foods, Inc., the District Court analyzed whether the “separate accrual” rule should be applied. After noting that a number of Circuit Courts of Appeal, including the Ninth Circuit in Grimmett v. Brown, supra, 75 F.3d 506, 512, apply the “separate accrual” in civil RICO actions, the District Court ruled:
The question remains whether the separate accrual rule applies in this action. Plaintiffs’ theory is that Tyson engaged in an illegal immigrant hiring scheme in which Tyson allegedly hired illegal aliens which in turn depressed the wages that legal U.S. citizens could earn by working at Tyson. They argue that each time Tyson hired an illegal immigrant, such hiring constituted a new and independent injury causing independent damages. The Court agrees that, based on Plaintiffs’ alleged theory

and viewing the facts in the light most favorable to Plaintiffs, each time Tyson unlawfully hired an illegal immigrant, the Plaintiffs sustained an injury to their business.

Plaintiff, relying on this ruling, argues that “because the Amended Complaint alleges injury caused by conduct (illegal hiring) occurring within the last four years ..., the fact that illegal hiring may have begun more than four years ago does not bar [Plaintiff’s] claim.”
*11 Plaintiff cited Trollinger in his reply brief. Therefore, Defendants have not had the opportunity to address it. This Court is not bound by Trollinger’ s ruling and, as noted, the ruling was made at summary judgment, not in the context of a motion to strike an affirmative defense. The underlying facts are not developed. Striking the Seventh Affirmative Defense may be premature. The validity of the defense should be determined by dispositive motion.4 The motion to strike the Seventh Affirmative Defense is DENIED.

4

Defendants’ Answer also “reserve[s] the right to add

any additional defenses, cross-claims, and/or to amend

this Answer to the First Amended Complaint.” Plaintiff

contends that Defendants have waived any affirmative

defenses not raised in the Answer, citing Roberts v.

College of the Desert, 870 F.2d 1411, 1414 (9th

Cir.1988). Roberts held that “the statute of limitations

is an affirmative defense which was not specially

pleaded in the district court and cannot be raised for the

first time on appeal.” Roberts does not preclude

Defendants from amending their Answer to allege

additional affirmative defenses. Plaintiff further

contends that Defendant must seek leave of court to

amend the Answer pursuant to Rule 15(a), Federal

Rules of Civil Procedure. This issue is not relevant to

resolution of the motion to strike and is not addressed

further.

CONCLUSION For the reasons stated above, Plaintiff’s motion to strike affirmative defenses is DENIED.
IT IS SO ORDERED.
Parallel Citations RICO Bus.Disp.Guide 11,302
	  
8

Hernandez v. Balakian, Not Reported in F.Supp.2d (2007) 9

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT FOR THE

7

EASTERN DISTRICT OF CALIFORNIA

8

9 JOSE HERNANDEZ, individually )

and on behalf of all others )

10 similarly situated,

)

)

11

)

)

12

Plaintiffs, )

)

13

vs.

)

)

14

)

LEO BALAKIAN, et al.,

)

15

)

)

16

Defendant.

)

)

17

)

No. CV-F-06-1383 OWW/DLB
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT AND VACATE THE SCHEDULE (Doc. 80)

18

This class action was commenced on October 15, 2006.

19 Pursuant to the First Amended Complaint (FAC) filed on April 2,

20 2007, Plaintiff Jose Hernandez, as class representative, has sued

21 defendants Leo Balakian, Anthony Balakian, and Vince Balakian,

22 owners of Fruit Patch, Inc. The FAC alleges that the Balakians

23 “have depressed [Plaintiff Hernandez’s] wages as an agricultural

24 worker at Fruit Patch, Inc. by knowingly employing vast numbers

25 of illegal immigrants there for the express purpose of depressing

26 the market for unskilled labor”; that “[t]his is referred to as

1

1 ‘the Illegal Immigrant Hiring Scheme’ or ‘the Scheme’”; and that

2 the Illegal Immigrant Hiring Scheme violates the Racketeer

3 Influenced and Corrupt Organizations Act (RICO). The First

4 Amended Complaint is brought on behalf of Hernandez “and all

5 other persons legally authorized to be employed in the U.S. who

6 have been employed by Fruit Patch, Inc. in the last four years

7 ... as hourly or piece rate unskilled laborers.”

8

On December 17, 2007, Plaintiff filed a motion for class

9 certification, seeking to be the sole class representative for

10 several thousand legal workers at Fruit Patch, Inc. This motion

11 was set to be heard on February 11, 2008. Defendants opposed

12 this motion, primarily on the ground that Jose Hernandez will not

13 be an adequate representative of the class, in part because Mr.

14 Hernandez recently has been arrested on multiple felony charges.

15 Defendants also asserted that Mr. Hernandez cannot be an adequate

16 class representative because he was involved in an automobile

17 accident in 2005 in which he suffered an injury affecting his

18 memory which persists to the present.

19

In lieu of a reply brief, Plaintiff, on January 31, 2008,

20 filed a motion to amend for leave to amend the complaint and

21 vacate the case schedule.

22

The motion for class certification was denied from the bench

23 on February 11, 2008. Before the Court is Plaintiff’s motion for

24 leave to amend and vacate the schedule.

25

Plaintiff’s motion to amend seeks leave to file a Second

26 Amended Complaint within 60 days substituting a new class

2

1 representative and to vacate the existing schedule. Counsel for

2 Plaintiff asserts that Mr. Hernandez did not tell him of his

3 arrest and charge until after the motion for class certification

4 was filed. Counsel for Plaintiff “freely admits that his arrest

5 and felony complaint make him an inadequate class

6 representative.”

7

Plaintiff cites National Federation of the Blind v. Target

8 Corp., 2007 U.S. 2846462 (N.D.Cal.2007). In a discussion of the

9 typicality requirement of Rule 23(a)(3), Federal Rules of Civil

10 Procedure, the District Court stated:

11

[T]he court is not convinced that Sexton has

demonstrated an injury with the requisite

12

nexus to the Target stores for the nationwide

class. However, the court is satisfied that

13

some of the putative class members would

present the same type of legal and remedial

14

theory as the unnamed class members. As long

as the proposed class satisfies the

15

requirements of Rule 23, the court may

certify the class conditioned upon the

16

substitution of another named plaintiff. See

Kremens v. Bartley, 431 U.S. 119, 135 ...

17

(1977)(where named plaintiffs’ claims were

determined to be moot, ordering substitution

18

of class representatives); Gibson v. Local

40, 543 F.2d 1259, 1263 (9th Cir.1976)(‘In

19

any event, failure of proof as to the named

plaintiffs would not bar maintenance of the

20

class action or entry of judgment awarding

relief to the members of the class.’). Thus,

21

the court will grant plaintiffs’ leave to

substitute another class representative for

22

the nationwide class.

23 2007 WL 2846462 at *14. Plaintiff also cites Rice v. Lender

24 Services Direct, Inc., 2007 WL 2287873 (D.Ariz.2007)(motion to

25 amend to name new class representatives granted because of

26 serious illness of class representative’s husband).

3

1

Defendants argue that the issue is whether “Plaintiff’s

2 counsel should be given time to scour the Fresno-area for someone

3 willing to serve as class representative for Plaintiff’s

4 counsel’s copy-cat lawsuit.”1 Defendants cite Bodner v. Oreck

5 Direct, LLC, 2007 WL 12223777 (N.D.Cal.2007):

6

In light of plaintiff’s undeniable and

overwhelming ignorance regarding the nature

7

of this action, the facts alleged, and the

theories of relief against defendant, the

8

court cannot conclude that he has met the

threshold typicality or adequacy requirement

9

of Rule 23(a). It is clear from the record

that plaintiff’s counsel, and not plaintiff,

10

is the driving force behind this action.

Such a ‘cart before the horse’ approach to

11

litigation is not the proper mechanism for

the vindication of legal rights. See Meachum

12

v. Outdoor World Corp., 171 Misc.2d 354, 654

N.Y.S.2d 240, 369 (1996)(‘Solicitation of

13

clients for the commencement or continuation

of a class action is improper, sufficient to

14

warrant denial of class certification.’)

Furthermore, the Westrup Klick firm has had

15

trouble regarding its choice of plaintiffs in

the past. See Apple Computer, Inc. v.

16

Superior Court, 126 Cal.App.4th 1253 ...

(2005)(disqualifying the Westrup Klick firm

17

from a class action case where it was

established that, ‘from 2003 to 2005, Westrup

18

Klick and [another firm] had jointly filed 10

class actions under [California’s Unfair

19

Competition Law] in which an attorney from

Westrup Klick or a relative of one of the

20

attorneys was the named plaintiff’). The

latest filing is just one more example of

21

plaintiff’s counsel’s improper approach to

consumer litigation.

22

That plaintiff’s counsel constructed this

23

24

1Defendants’ opposition to the motion for leave to amend was

filed on February 8, 2008, just before the hearing on the motion

25 for class certification. Parts of the opposition argue against

certification of the class, arguments now mooted by the oral order

26 denying the class certification motion.

4

1

lawsuit before it had a plaintiff cannot be

denied. This fact is borne out not only by

2

plaintiff’s own admissions, but by

plaintiff’s counsel’s previous abortive

3

attempt to bring a seemingly identical

lawsuit in another district. Indeed, counsel

4

himself admitted at the hearing that he or

his firm had the research performed on the

5

product at issue and had a theory about the

product’s deficiencies. Then, armed with hat

6

information they went in search of a

plaintiff, never mind the lack of a fitting

7

plaintiff or the lack of ethical scruples.

The instant action is nothing more than

8

Westrup Klick bringing its show to the

Northern District and continuing its practice

9

of selecting stand-in plaintiffs, even ones

who are inappropriate. To grant class

10

certification in such circumstances would be

to place this court’s imprimatur on

11

litigation practices which it finds abhorrent

and inconsistent with the standards of

12

federal class action suits.

13

In short, the conduct in this action does not

look good, does not sound good, and does not

14

smell good. In fact, it reeks. The court

will not participate in this scheme by

15

certifying a class.

16

Plaintiff replies that Bodner is not controlling because it

17 involved denial of class certification, not the substitution of

18 the class representative. Plaintiff contends that the arrest of

19 the named plaintiff who is unable to post bond precludes him for

20 properly pursuing this action. It is asserted that denial of the

21 motion for leave to amend will effectively end this action and

22 that nothing in the record supports that outcome.

23

Rule 15(a), Federal Rules of Civil Procedure, requires that

24 leave to amend should be freely granted when justice so requires.

25 Although it is arguable that Jose Hernandez would not have been

26 an adequate representative notwithstanding his arrest, that issue

5

1 is no longer before the Court. The concern expressed in Bodner

2 is one that can be addressed if and when a motion for class

3 certification is filed, assuming a new class representative can

4 be located.

5

Plaintiff has already had 30 days to locate a new class

6 representative. Plaintiff shall have an additional thirty (30)

7 days or until April 17, 2008 to amend to substitute a suitable

8 class representative. The motion for leave to amend is GRANTED

9 on that condition. If the amendment is made, a scheduling

10 conference shall be held on May 2, 2008 at 8:15 a.m. If no

11 amendment is made, the action shall be dismissed without

12 prejudice.

13

IT IS SO ORDERED.

14 Dated: March 18, 2008 668554
15

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

6

 
 Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 1 of 9
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:06−cv−01383−OWW−DLB

Jose Hernandez v. Leo Balakian, et.al. Assigned to: Senior Judge Oliver W. Wanger Referred to: Magistrate Judge Dennis L. Beck Cause: 18:1961 Racketeering (RICO) Act
Petitioner Jose Hernandez

Date Filed: 10/05/2006 Date Terminated: 05/01/2008 Jury Demand: Plaintiff Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question
represented by Matthew A. Galin Foster, P.C. 150 North Wacker Drive Suite 2150 Chicago, IL 60606 312−726−1603 Fax: 312−276−4147 Email: mgalin@fosterpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas J.P. Wagner Law Offices Of Wagner &Jones 1111 East Herndon Suite 317 Fresno, CA 93720 (559) 449−1800 Fax: (559) 449−0749 Email: rchavez@wagnerjones.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard W. Foster , PHV Foster, P.C. 150 North Wacker Drive Suite 2150 Chicago, IL 60606 312−726−1600 Email: hfoster@fosterpc.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Goldberg Goldberg Law Firm 925 N Street Suite 130 Fresno, CA 93721 559−264−4878 Fax: 559−486−4878 Email: hurt@psnw.com ATTORNEY TO BE NOTICED

V. Defendant Leo Balakian

represented by Jan Leslie Kahn Kahn, Soares &Conway, LLP 219 N. Douty Street Hanford, CA 93230

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 2 of 9

(559) 584−3337 Fax: (559) 584−3348 Email: jkahn@kschanford.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monte B. Lake , PHV Siff, Cerda &Lake, LLP 1020 Sixteenth Street, N.W. Suite 200 Washington, DC 20036 202−789−8644 Fax: 202−789−8634 Email: mbl@scllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendel Hall , PHV Siff, Cerda &Lake, LLP 1020 Sixteenth Street, N.W. Suite 200 Washington, DC 20036 202−789−8600 Email: wvh@scllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Cooper , PHV McGuiness Norris &WIlliam, LLP 1015 15th Street N.W. Suite 12000 Washington, DC 20005 202−789−8665 Fax: 202−789−8634 Email: ccooper@mnwlaw.net TERMINATED: 07/30/2007

Natalie K. Brouwer , PHV McGuiness Norris &WIlliam, LLP 1015 15th Street N.W. Suite 12000 Washington, DC 20005 202−789−8651 Fax: 202−789−8634 Email: nbrouwer@mnwlaw.net TERMINATED: 01/26/2007

Defendant Anthony Balakian

represented by Jan Leslie Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monte B. Lake , PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendel Hall , PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Cooper , PHV

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 3 of 9

(See above for address) TERMINATED: 07/30/2007

Natalie K. Brouwer , PHV (See above for address) TERMINATED: 01/26/2007

Defendant Vince Balakian

represented by Jan Leslie Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monte B. Lake , PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendel Hall , PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine M. Cooper , PHV (See above for address) TERMINATED: 07/30/2007

Natalie K. Brouwer , PHV (See above for address) TERMINATED: 01/26/2007

Date Filed 10/05/2006 10/05/2006 10/05/2006 10/05/2006
10/05/2006
10/05/2006
10/06/2006 10/24/2006

# Docket Text
1 COMPLAINT and Civil Cover Sheet against all defendants by Jose Hernandez. Attorney Wagner, Nicholas J.P. added. (Attachments: # 1)(Wagner, Nicholas) (Entered: 10/05/2006)
3 APPLICATION for Pro Hace Vice by Jose Hernandez. (Wagner, Nicholas) (Entered: 10/05/2006)
RECEIPT number 101 9529 for $350.00 for Civil Filing Fee from Daniel Kopfman. (Timken, A) (Entered: 10/05/2006)
4 SUMMONS ISSUED as to *Anthony Balakian, Vince Balakian, Leo Balakian* with answer to complaint due within *20* days. Attorney *Nicholas J.P. Wagner* *Law Offices of Wagner &Jones* *1111 East Herndon Ste 317* *Fresno, CA 93720*. (Timken, A) (Entered: 10/05/2006)
5 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 2/14/2007 at 08:45 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Timken, A) (Entered: 10/05/2006)
6 CLERK'S NOTICE: Attn: J. Wagner 3 Application ; Advance payment of a fee in the amount of $180.00 is required and should be submittedelectronically using an event in the category Credit Card Payments. Your document will not befiled until the fee is paid (Local Rule 77−121c). (Kusamura, W) (Entered: 10/05/2006)
RECEIPT number 101 9549 for $180.00 for Pro Hac Vice re 3 from Daniel Kopfman. (Gil−Garcia, A) (Entered: 10/06/2006)
8 REQUEST for WAIVER of SERVICE sent to Leo Balakian, Anthony Balakian, Vince Balakian by Jose Hernandez. Attorney Foster − PRO HAC VICE, Howard W. added. (Foster − PRO HAC VICE, Howard) (Entered: 10/24/2006)

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 4 of 9

10/31/2006 10/31/2006 10/31/2006 10/31/2006 10/31/2006 11/02/2006 11/02/2006 11/02/2006 12/05/2006
12/05/2006 12/06/2006
12/08/2006 12/19/2006 12/19/2006 12/21/2006

9 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Anthony Balakian, Vince Balakian, Leo Balakian for attorney Monte B. Lake to appear Pro Hac Vice. Attorney Kahn, Jan Leslie added. (Kahn, Jan) (Entered: 10/31/2006)
10 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Anthony Balakian, Vince Balakian, Leo Balakian for attorney Natalie K. Brouwer to appear Pro Hac Vice. (Kahn, Jan) (Entered: 10/31/2006)
11 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Anthony Balakian, Vince Balakian, Leo Balakian for attorney Christine M. Cooper to appear Pro Hac Vice. (Kahn, Jan) (Entered: 10/31/2006)
RECEIPT number 101 9681 for $180.00 for Pro Hac Vice − Monte B. Lake from Kahn Soares &Conway. (Carter−Ford, R) (Entered: 10/31/2006)
RECEIPT number 101 9682 for $360.00 for Pro Hac Vice − Natalie K. Brouwer and Christine M. Cooper from Kahn Soares &Conway. (Carter−Ford, R) (Entered: 10/31/2006)
14 PRO HAC VICE ORDER Added attorney Natalie K. Brouwer − PRO HAC VICE for Anthony Balakian, Leo Balakian and Vince Balakian. Signed by Judge Oliver W. Wanger on 10/31/06. (Hellings, J) (Entered: 11/02/2006)
15 PRO HAC VICE ORDER: Added attorney Christine M. Cooper − PRO HAC VICE for Anthony Balakian, Leo Balakian and Vince Balakian. Signed by Judge Oliver W. Wanger on 10/31/06. (Hellings, J) (Entered: 11/02/2006)
16 PRO HAC VICE ORDER: Added attorney Monte B. Lake − PRO HAC VICE for Anthony Balakian, Leo Balakian and Vince Balakian. Signed by Judge Oliver W. Wanger on 10/31/06. (Hellings, J) (Entered: 11/02/2006)
17 MOTION to DISMISS by Anthony Balakian, Vince Balakian, Leo Balakian. Motion Hearing set for 1/8/2007 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Memorandum of Points and Authorities# 2 Proposed Order # 3 Lexis Case)(Brouwer − PRO HAC VICE, Natalie) (Entered: 12/05/2006)
18 REQUEST for JUDICIAL NOTICE by Anthony Balakian, Vince Balakian, Leo Balakian in re 17 Motion to Dismiss,. (Attachments: # 1 Brewer Part 1 of 2# 2 Brewer Part 2 of 2)(Brouwer − PRO HAC VICE, Natalie) (Entered: 12/05/2006)
19 CLERK'S NOTICE: Attn: Natalie Brouwer regarding 18 Request for Judicial Notice − Wrong Document AttachedYour filing is entitled Request for judical notice, however, the actual document attached is "Jury Demanded" "Class Action Complaint" for a case in the District of Washington division of Yakima, case # CV−06−3090 RHW Marin v. Evans.Please re−file your document using the correct event. If you needassistance, please contact the CM/ECF help desk at 866−884−5444. (Kusamura, W) (Entered: 12/06/2006)
20 REQUEST for JUDICIAL NOTICE by Anthony Balakian, Vince Balakian, Leo Balakian in re 17 Motion to Dismiss,. Amended Request (Attachments: # 1 Marin Complaint# 2 Brewer Complaint Part 1 of 2# 3 Brewer Complaint Part 2 of 2)(Brouwer − PRO HAC VICE, Natalie) (Entered: 12/08/2006)
21 MOTION for EXTENSION 14 Days by Jose Hernandez re 17 MOTION to DISMISS by Jose Hernandez. (Foster − PRO HAC VICE, Howard) (Entered: 12/19/2006)
22 PROPOSED ORDER Proposed Order re 21 MOTION for EXTENSION 14 Days by Jose Hernandez re 17 MOTION to DISMISS by Jose Hernandez. (Foster − PRO HAC VICE, Howard) (Entered: 12/19/2006)
23 MEMORANDUM/RESPONSE in OPPOSITION. To Plaintiff's Request for Two Week Extension to Respond to Motion to Dismiss (Attachments: # 1 Exhibit Attachment A to Response in Opposition)(Cooper − PRO HAC VICE, Christine) (Entered: 12/21/2006)

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 5 of 9

12/21/2006
01/03/2007 01/03/2007 01/03/2007 01/04/2007
01/04/2007
01/05/2007 01/08/2007 01/17/2007 01/18/2007 01/19/2007 01/19/2007
01/19/2007
01/25/2007

24 ORDER GRANTING 21 Plaintiff's Motion for Extension of time to file opposition to defendants' Motion to Dismiss. Plaintiff's opposition is due by 1/5/07. The hearing on the Motion to Dismiss currently set for 1/8/07 is hereby CONTINUED to 1/29/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, signed by Judge Oliver W. Wanger on 12/21/06. (Robles, S) (Entered: 12/21/2006)
25 MOTION for SANCTIONS by Jose Hernandez. Motion Hearing set for 2/5/2007 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Foster − PRO HAC VICE, Howard) (Entered: 01/03/2007)
26 MEMORANDUM/RESPONSE in SUPPORT re 25 MOTION for SANCTIONS. (Foster − PRO HAC VICE, Howard) (Entered: 01/03/2007)
27 STIPULATION and PROPOSED ORDER Stipulation to Reschedule Oral Argument by Jose Hernandez. (Foster − PRO HAC VICE, Howard) (Entered: 01/03/2007)
28 REQUEST for Consolidation Of Court's Hearings For Defendants' Motion To Dismiss And Plaintiff's Motion For Sanctions by Anthony Balakian, Vince Balakian, Leo Balakian re 27 Stipulation and Proposed Order filed by Jose Hernandez,. (Attachments: # 1 Proposed Order)(Brouwer − PRO HAC VICE, Natalie) (Entered: 01/04/2007)
29 MINUTE ORDER: TEXT ONLY ENTRY − The hearing on the motion to dismiss currently set for 1/29/2007 and the hearing on the motion for sanctions set for 2/5/2007 at 9:00 am will both be heard on 2/5/2007 at 10:00 AM (the courts regular law and motion hearing time) in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Lucas, G) (Entered: 01/04/2007)
30 MEMORANDUM/RESPONSE in OPPOSITION re 17 MOTION to DISMISS. (Foster − PRO HAC VICE, Howard) (Entered: 01/05/2007)
31 ORDER signed by Judge Oliver W. Wanger on 1/5/07 ORDERING 17 MOTION to DISMISS Hearing CONTINUED from 1/29/07 to 2/5/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Carter−Ford, R) (Entered: 01/08/2007)
32 REQUEST for Rescheduling the Court's Rule 16 Conference by Anthony Balakian, Vince Balakian, Leo Balakian. (Attachments: # 1 Proposed Order)(Brouwer − PRO HAC VICE, Natalie) (Entered: 01/17/2007)
33 ORDER GRANTING Joint Request to Reschedule the Court's Rule 16 Conference. Signed by Judge Oliver W. Wanger on 1/18/07. (Hellings, J) (Entered: 01/18/2007)
34 MEMORANDUM/RESPONSE in OPPOSITION re 25 MOTION for SANCTIONS. (Attachments: # 1 Exhibit A − Mendoza Complaint# 2 Exhibit B, Mendoza RICO Case Statement)(Brouwer − PRO HAC VICE, Natalie) (Entered: 01/19/2007)
35 REQUEST for Judicial Notice of Complaint and RICO Case Statement Filed in Federal Court by Anthony Balakian, Vince Balakian, Leo Balakian re 34 Memorandum/Response in Opposition to Motion filed by Leo Balakian,, Anthony Balakian,, Vince Balakian,. (Attachments: # 1 Mendoza Complaint# 2 Mendoza RICO Case Statement)(Brouwer − PRO HAC VICE, Natalie) (Entered: 01/19/2007)
36 MINUTE ORDER: TEXT ONLY ENTRY − Due to the Court's heavy caseload, the hearing on the Motion to Dismiss and Motion for Sanctions currently set for 2/5/07 has been continued to 3/19/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. If the new hearing date is not agreeable to all parties, a stipulation signed by all parties must be submitted to the court with a new proposed hearing date that is not earlier than 4/9/07. (Robles, S) (Entered: 01/19/2007)
37 NOTICE by all defendants. Notice of Withdrawal of Natalie K. Brouwer (Brouwer − PRO HAC VICE, Natalie) (Entered: 01/25/2007)

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 6 of 9

01/26/2007 03/12/2007 03/19/2007
03/27/2007
04/02/2007 04/06/2007 04/09/2007 04/12/2007
04/13/2007 04/13/2007 04/16/2007 04/17/2007
04/24/2007 04/24/2007 04/25/2007

38 REPLY to RESPONSE to MOTION re 25 MOTION for SANCTIONS. (Foster − PRO HAC VICE, Howard) (Entered: 01/26/2007)
39 REPLY to RESPONSE to MOTION re 17 MOTION to DISMISS. (Lake − PRO HAC VICE, Monte) (Entered: 03/12/2007)
40 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR SANCTIONS HEARING held on 3/19/2007. Matter argued and submitted. Order to be prepared by the court. Scheduling Conference set for 4/13/2007 at 08:45 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. Plaintiffs Counsel H. Foster present. Defendants Counsel M. Lake present. Court Reporter/CD Number: K. Lopez. (Robles, S) (Entered: 03/19/2007)
41 ORDER GRANTING IN PART WITH LEAVE TO AMEND AND DENYING IN PART 17 MOTION to DISMISS filed by Leo Balakian, Anthony Balakian, Vince Balakian and DENYING 25 MOTION for SANCTIONS filed by Jose Hernandez. Case Management due by 5/1/2007 for filing of first amended complaint. signed by Judge Oliver W. Wanger on 3/23/07. (Robles, S) (Entered: 03/27/2007)
42 FIRST AMENDED COMPLAINT against all defendants by Jose Hernandez.(Foster − PRO HAC VICE, Howard) (Entered: 04/02/2007)
43 STATEMENT of Defendants' Case Management Statement and Proposed Order by Defendants Anthony Balakian, Vince Balakian, Leo Balakian. (Lake − PRO HAC VICE, Monte) (Entered: 04/06/2007)
44 SCHEDULING REPORT by Jose Hernandez. (Foster − PRO HAC VICE, Howard) (Entered: 04/09/2007)
45 CLERK'S NOTICE of DOCKET CORRECTION to Monte Lake re 43 Statement: The document should be filed with the event Proposed Order or Stipulation and Proposed Order. Additionally, Local Rule 5−137(b) requires that you email the proposed order in word processing format to the appropriate Judge. Please refer to "E−Mail Addresses for Proposed Orders" on our website (please disregard if you have emailed your document to the judge).(Hellings, J) (Entered: 04/12/2007)
46 PROPOSED ORDER Defendants' Case Management Statement and Proposed Order by Anthony Balakian, Vince Balakian, Leo Balakian. (Lake − PRO HAC VICE, Monte) (Entered: 04/13/2007)
47 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : SCHEDULING CONFERENCE held on 4/13/2007. Order to be prepared by the Court. (Robles, S) (Entered: 04/13/2007)
48 DEFENDANTS' ANSWER to AMENDED COMPLAINT by Anthony Balakian, Vince Balakian, Leo Balakian.(Lake − PRO HAC VICE, Monte) (Entered: 04/16/2007)
49 FIRST SCHEDULING CONFERENCE ORDER; class certification discovery cut−off due by 8/13/2007; motion for class certification due by 8/13/2007; in−court hearing re same set for 9/24/2007 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; order signed by Judge Oliver W. Wanger on 4/13/07. (Rooney, M) (Entered: 04/17/2007)
50 MOTION for DISCOVERY to Strike Defs' Affirmative Defenses by Jose Hernandez. Motion Hearing set for 6/4/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Foster − PRO HAC VICE, Howard) (Entered: 04/24/2007)
51 MEMORANDUM/RESPONSE in SUPPORT re 50 MOTION for DISCOVERY to Strike Defs' Affirmative Defenses. (Foster − PRO HAC VICE, Howard) (Entered: 04/24/2007)
52 MEMORANDUM/RESPONSE in SUPPORT re 50 MOTION for DISCOVERY to Strike Defs' Affirmative Defenses. AMENDED (Foster − PRO HAC VICE, Howard) (Entered: 04/25/2007)

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 7 of 9

05/18/2007
05/25/2007 05/29/2007
05/30/2007 05/31/2007 06/01/2007 06/05/2007 06/07/2007 06/12/2007 07/02/2007 07/02/2007 07/27/2007
07/30/2007 07/30/2007 07/30/2007 08/02/2007 08/24/2007

53 MEMORANDUM/RESPONSE in OPPOSITION re 50 MOTION for DISCOVERY to Strike Defs' Affirmative Defenses. (Attachments: # 1 Exhibit Attachment A Marin v. Evans# 2 Exhibit Attachment B Jones v. Tozzi)(Lake − PRO HAC VICE, Monte) (Entered: 05/18/2007)
54 MEMORANDUM/RESPONSE in SUPPORT re 50 MOTION for DISCOVERY to Strike Defs' Affirmative Defenses. (Foster − PRO HAC VICE, Howard) (Entered: 05/25/2007)
55 MINUTE ORDER: TEXT ONLY ENTRY − NOTICE TO COUNSEL: Counsel are reminded of the local rule requirement that when any document which has been electronically filed exceeds 25 pages, counsel must also submit a courtesy paper copy to chambers which is properly tabbed and fastened. (Timken, A) (Entered: 05/29/2007)
56 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Jose Hernandez for attorney Matthew A. Galin to appear Pro Hac Vice. (Goldberg, Michael) (Entered: 05/30/2007)
RECEIPT number 101−205242 for $180.00 for Pro Hac Vice Application Fee as to Matthew A. Galin from Johnson &Bell. (Arellano, S.) (Entered: 05/31/2007)
57 ORDER DENYING 50 Plaintiff's MOTION to strike defendants' affirmative defenses signed by Judge Oliver W. Wanger on 6/1/2007. (Timken, A) (Entered: 06/01/2007)
58 PRO HAC VICE ORDER Added attorney Matthew A. Galin− PRO HAC VICE for Jose Hernandez, signed by Judge Oliver W. Wanger on 6/1/07. (Gil−Garcia, A) (Entered: 06/05/2007)
RECEIPT Number 101−205334 for $180.00 for Pro Hac Vice Application Fee as to Wendel V. Hall From McGuiness, Norris &Williams LLP.(Arellano, S.) (Entered: 06/08/2007)
59 PRO HAC VICE ORDER Added attorney Wendel V. Hall−PRO HAC VICE for Anthony Balakian and Vince Balakian, signed by Judge Oliver W. Wanger on 06/08/2007. (Martin, S) (Entered: 06/12/2007)
60 MOTION to COMPEL by Jose Hernandez.Motion Hearing set for 7/27/2007 at 09:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Foster − PRO HAC VICE, Howard) (Entered: 07/02/2007)
61 STATEMENT of Joint Statement of Plaintiff and Defendant by Plaintiff Jose Hernandez re 60 MOTION to COMPEL. (Attachments: # 1 Exhibit Exhibits A−K)(Foster − PRO HAC VICE, Howard) (Entered: 07/02/2007)
62 MINUTES (Text Only) for proceedings held before Judge Dennis L. Beck : MOTION HEARING held on 7/27/2007 ; MOTIONS SUBMITTED: taking under submission, Court to issue Order re: Plaintiff's 60 Motion to Compel. Plaintiffs Counsel Howard Foster by telephone. Defendants Counsel Christine Cooper, Jan Leslie Kahn, Wendall Hall, Monte Lake by telephone. Court Reporter/CD Number: ECRO. (Hernandez, M) (Entered: 07/27/2007)
63 MOTION to VACATE Class Certification Schedule by Jose Hernandez.Motion Hearing set for 9/10/2007 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Foster − PRO HAC VICE, Howard) (Entered: 07/30/2007)
64 MEMORANDUM/RESPONSE in SUPPORT re 63 MOTION to VACATE Class Certification Schedule. (Foster − PRO HAC VICE, Howard) (Entered: 07/30/2007)
65 NOTICE by Anthony Balakian, Vince Balakian, Leo Balakian. of Withdrawal of Christine M. Cooper (Cooper − PRO HAC VICE, Christine) (Entered: 07/30/2007)
66 NOTICE of CHANGE of ADDRESS by Monte B. Lake − PRO HAC VICE. (Lake − PRO HAC VICE, Monte) (Entered: 08/02/2007)
67 MEMORANDUM/RESPONSE in OPPOSITION re 63 MOTION to VACATE Class Certification Schedule. (Lake, Monte) (Entered: 08/24/2007)

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 8 of 9

09/05/2007 09/10/2007
09/11/2007 09/25/2007 09/25/2007 11/05/2007 12/17/2007 12/17/2007 12/28/2007 01/04/2008
01/09/2008 01/25/2008 01/25/2008
01/31/2008

68 ORDER granting 60 Motion to Compel in part signed by Judge Dennis L. Beck on 9/5/2007. (Hernandez, M) (Entered: 09/05/2007)
70 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : MOTION to vacate class certification schedule HEARING held on 9/10/2007. The Court grants the motion as to the class certification schedule. The Court orders counsel to resolve the class discovery period, if no resolution is made, the matter is to be reset on calendar. Plaintiffs Counsel Not Present present. Defendants Counsel J. Kahn present. Court Reporter/CD Number: K. Lopez. (Timken, A) (Entered: 09/13/2007)
69 STIPULATION and PROPOSED ORDER by Anthony Balakian, Vince Balakian, Leo Balakian. (Attachments: # 1 Proposed Order)(Hall, Wendel) (Entered: 09/11/2007)
71 ORDER GRANTING Plaintiff's Motion to Vacate 63 . Signed by Judge Oliver W. Wanger on 9/25/07. (Hellings, J) (Entered: 09/25/2007)
SERVICE BY MAIL: 71 Order on Motion to Vacate served on Matthew A. Galin PHV, Wendel Hall PHV. (Hellings, J) (Entered: 09/25/2007)
72 ORDER signed by Judge Oliver W. Wanger on 11/5/2007 setting Scheduling Conference for 1/4/2008 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 11/05/2007)
73 MOTION to CERTIFY CLASS by Jose Hernandez.Motion Hearing set for 2/11/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Foster, Howard) (Entered: 12/17/2007)
74 MEMORANDUM/RESPONSE in SUPPORT re 73 MOTION to CERTIFY CLASS. (Attachments: # 1 Exhibit A through D# 2 Exhibit E though J# 3 Exhibit K# 4 Exhibit L# 5 Exhibit M through O)(Foster, Howard) (Entered: 12/17/2007)
75 JOINT SCHEDULING REPORT by Jose Hernandez. (Foster, Howard) (Entered: 12/28/2007)
76 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger : SCHEDULING CONFERENCE held on 1/4/2008. Specific dates to be given upon the Court's ruling on the class action motion. If the matter is not deemed a class action a further scheduling conference will be held. The Court to issue order. Plaintiffs Counsel M. Galin, H. Foster present. Defendants Counsel J. Kahn, M. Lake, W. Hall present. (Timken, A) (Entered: 01/04/2008)
77 ORDER After Scheduling Conference signed by Judge Oliver W. Wanger on 1/8/08. (Verduzco, M) (Entered: 01/09/2008)
78 MEMORANDUM/RESPONSE in OPPOSITION re 73 MOTION to CERTIFY CLASS. (Attachments: # 1 Proposed Order Form of Order per Standing Order)(Lake, Monte) (Entered: 01/25/2008)
79 STATEMENT of Appendix of Exhibits in Support of Defendants' Memorandum in Opposition to Plaintiff's Motion to Certify Class by Defendants Anthony Balakian, Vince Balakian, Leo Balakian re 78 Memorandum/Response in Opposition to Motion. (Attachments: # 1 Exhibit Excerpts from Deposition of Jose Hernandez, # 2 Exhibit Declaration of Anthony Balakian, # 3 Exhibit Declaration of Vince Balakian, # 4 Exhibit Declaration of Leo Balakian, # 5 Exhibit Pew Center Report, # 6 Exhibit Declaration of Dr. Finis Welch, # 7 Exhibit DHS Subpoena re Olivarez, # 8 Exhibit Significant Obstacles, # 9 Exhibit GAO Report: Weaknesses Hinder Employment Verification, # 10 Exhibit Agreement Between Plaintiff and Counsel, # 11 Exhibit Jose Hernandez I−9 Form with Translator's Signature, # 12 Exhibit Felony Complaint, # 13 Exhibit Order re Preliminary Hearing, # 14 Exhibit Salyer Complaint, # 15 Exhibit Evans Complaint, # 16 Exhibit Affidavit of Jose Hernandez (English/Spanish), # 17 Exhibit Workers' Compensation Deposition, # 18 Exhibit Letter transmitting File)(Lake, Monte) (Entered: 01/25/2008)
80 MOTION to AMEND the COMPLAINT amending 42 Amended Complaint and Vacate Schedule by Jose Hernandez. Motion Hearing set for 2/11/2008 at 10:00 AM in Courtroom 3 (OWW) before District Judge Oliver W. Wanger. (Foster,

Case: 1:06-cv-1383 As of: 02/19/2013 07:50 PM PST 9 of 9

01/31/2008 02/01/2008 02/08/2008 02/11/2008 03/07/2008 03/17/2008
03/19/2008 03/25/2008
04/22/2008 05/01/2008 01/26/2011

Howard) (Entered: 01/31/2008)
81 MEMORANDUM/RESPONSE in SUPPORT re 80 MOTION to AMEND the COMPLAINT amending 42 Amended Complaint and Vacate Schedule. (Foster, Howard) (Entered: 01/31/2008)
82 MINUTE ORDER: ***TEXT ONLY ENTRY*** Notice to counsel: The hearing date re motion to amend the complaint, 80 , has been changed to allow proper notice pursuant to Local Rule 78−230(b). The Hearing re Motion to Amend the Complaint has been re−set to 3/17/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Timken, A) (Entered: 02/01/2008)
83 MEMORANDUM/RESPONSE in OPPOSITION re 80 MOTION to AMEND the COMPLAINT amending 42 Amended Complaint and Vacate Schedule. (Attachments: # 1 Exhibit Bodner v Oreck Direct, LLC, # 2 Proposed Order)(Lake, Monte) (Entered: 02/08/2008)
84 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: HEARING re Motion to Certify Class 73 held on 2/11/2008. The matter is argued and submitted. The Court denies the motion without prejudice. Court Reporter/CD Number: ECRO. (Timken, A) (Entered: 02/11/2008)
85 REPLY to RESPONSE to MOTION re 80 MOTION to AMEND the COMPLAINT amending 42 Amended Complaint and Vacate Schedule. (Foster, Howard) (Entered: 03/07/2008)
86 MINUTES (Text Only) for proceedings held before Judge Oliver W. Wanger: MOTION to Amend Complaint HEARING held on 3/17/2008. The Court grants the motion to amend re new representative plaintiff only. Amended Complaint due by 4/17/2008. A Scheduling Conference has been set for 5/2/2008 at 08:15 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger to revise scheduling dates. The Court to issue decision. Plaintiffs Counsel H. Foster, M. Galin present. Defendants Counsel M. Lake, W. Hall present. Court Reporter/CD Number: K. Lopez. (Timken, A) (Entered: 03/17/2008)
87 MEMORANDUM DECISION and ORDER Granting Plaintiff's Motion to Leave to Amend the Complaint and Vacate the Schedule 80 signed by Judge Oliver W. Wanger on 3/18/08. Amended Complaint due by 4/17/2008.(Verduzco, M) (Entered: 03/19/2008)
88 MOTION for PROTECTIVE ORDER Prohibiting Solicitation Of Potential Class Members As Class Representative Or Lead Plaintiff by Anthony Balakian, Vince Balakian, Leo Balakian. Motion Hearing set for 5/19/2008 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Attachments: # 1 Memorandum, # 2 Exhibit Spanish Solicitation Letter, # 3 Exhibit Certified Translation Of Spanish Solicitation Letter, # 4 Exhibit English Solicitation Letter, # 5 Exhibit Deposition Excerpts, # 6 Proposed Order)(Lake, Monte) (Entered: 03/25/2008)
89 PROPOSED ORDER by Anthony Balakian, Vince Balakian, Leo Balakian. (Lake, Monte) (Entered: 04/22/2008)
90 ORDER of DISMISSAL, signed by Judge Oliver W. Wanger on 4/30/08. CASE CLOSED(Gil−Garcia, A) (Entered: 05/01/2008)
91 TRANSCRIPT of Proceedings held on 2/11/2008, before Judge Oliver W. Wanger. MOTION TO CERTIFY CLASS HEARING filed by ECRO Otilia Figueroa, Phone number 559−499−5928 E−mail ofigueroa@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 2/17/2011. Redacted Transcript Deadline set for 2/28/2011. Release of Transcript Restriction set for 4/28/2011. (Figueroa, O) (Entered: 01/26/2011)