Case 3:06-cv-02322-N Document 54 Filed 03/14/08 Page 1 of 17 PageID 1067

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BLANCA VALENZUELA, MARGIE '

SALAZAR, JOSE A. SERRATO, JOSIE RENDON, CLARA TOVAR, CONSUELO ESPINO, MARIA AVILA, ERNESTINA

' ' ' '

NAVARRETTE, MARIA E. MUNOZ, '

AMANDA SALCIDO, CANDELARIO G. '

ORTEGA, MARIA ORTIZ, JOSE OLIVA, '

RAFAELA CHAVEZ, ELODIA ARROYO, '

SUSANA CARDIEL, GRACIE RIOS, AND '

LEONEL RUIZ, individually and on behalf of all others similarly situated

' ' '

'

Plaintiffs,

'

'

'

VS.

'

'

'

SWIFT BEEF COMPANY, INC. D/B/A

' '

SWIFT COMPANY, SWIFT &

'

COMPANY, and JOHN DOES I-V,

'

'

Defendants

'

'

'

Civil Action No. 3-06CV2322-N

PLAINTIFFS’ SECOND AMENDED COMPLAINT

TO THE HONORABLE COURT: Plaintiffs, Blanca Valenzuela, Margie Salazar, Jose A. Serrato, Josie Rendon, Clara Tovar,

Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E. Munoz, Amanda Salcido, Candelario

G. Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Susana Cardiel, Gracie Rios, and

Leonel Ruiz, individually and on behalf of all others similarly situated (hereinafter referred to herein

collectively as APlaintiffs@), bring this Second Amended Complaint against Defendants, Swift Beef

Company, Inc. d/b/a Swift Company, Swift & Company and John Does I-V for damages under the

PLAINTIFFS’ SECOND AMENDED COMPLAINT

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laws of the United States and the State of Texas and would respectfully show unto the Court as follows:
NATURE OF THE CASE 1. This is a class action brought on behalf of all persons legally authorized to be employed in the United States who have been employed at the Swift processing plants as hourly wage earners at one of its facilities (AThe Swift Facilities@), which are located in Texas, Colorado, Utah, Nebraska, Iowa, Kentucky, Minnesota and California. These plants were owned and managed by Swift Beef Company, Inc., Swift & Company (herein referred to collectively as the ASwift Defendants@). 2. The Complaint contends that all such persons have been victimized by a scheme perpetrated both by the Swift Defendants and the Individual Defendants through a conspiracy to depress the wages paid to its employees by knowingly hiring a workforce substantially comprised of undocumented illegal immigrants for the express purpose of depressing wages (herein referred to as either Athe Illegal Immigrant Hiring Scheme@ or Athe Scheme@). 3. The Illegal Immigrant Hiring Scheme violates the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ' 1961 et seq. (herein referred to as ARICO@) and has directly and proximately caused the wages paid to plaintiffs and the class members to be substantially depressed (i.e. below the level of wages Defendants would have had to pay for this labor if it were not engaged in the Scheme).
PARTIES 4. All of the Plaintiffs were legally authorized for employment in the United States, pursuant to the immigration laws of the United States, and, at all relevant times, were employed by the Swift Defendants as hourly paid employees.

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5. Plaintiff Blanca Valenzuela is a resident of Moore County, Texas. 6. Plaintiff Margie Salazar is a resident of Moore County, Texas. 7. Plaintiff Jose A. Serrato is a resident of Moore County, Texas. 8. Plaintiff Josie Rendon is a resident of Moore County, Texas. 9. Plaintiff Clara Tovar is a resident of Moore County, Texas. 10. Plaintiff Consuelo Espino is a resident of Moore County, Texas. 11. Plaintiff Maria Avila is a resident of Moore County, Texas. 12. Plaintiff Ernestina Navarrette is a resident of Moore County, Texas. 13. Plaintiff Maria E. Munoz is a resident of Moore County, Texas. 14. Plaintiff Amanda Salcido is a resident of Moore County, Texas. 15. Plaintiff Candelario G. Ortega is a resident of Moore County, Texas. 16. Plaintiff Maria Ortiz is a resident of Moore County, Texas. 17. Plaintiff Jose Oliva is a resident of Moore County, Texas. 18. Plaintiff Rafaela Chavez is a resident of Moore County, Texas. 19. Plaintiff Elodia Arroyo is a resident of Moore County, Texas. 20. Plaintiff Susana Cardiel is a resident of Moore County, Texas. 21. Plaintiff Gracie Rios is a resident of Moore County, Texas. 22. Plaintiff Leonel Ruiz is a resident of Moore County, Texas. 23. Defendant Swift Beef Company, Inc. has appeared and answered herein. 24. Defendant Swift & Company has appeared and answered herein. . 25. Upon information and belief, John Does I-V are officers, agents, managers, employees and affiliated persons whose identities have not yet been determined, who are employed by or act on behalf of the Swift Defendants and their illegal enterprise (as set forth more fully herein)

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and who had personally participated in and had the right to supervise, direct and control the wrongful conduct alleged in this Complaint. Their true and correct legal identities will be added by amendment when properly ascertained through the course of appropriate discovery in this case.
JURISDICTION AND VENUE 26. This Court has subject matter jurisdiction over the claims made in this lawsuit pursuant to 28 U.S.C. ' 1331 as a federal question and by 28 U.S.C. ' 1964(a) of RICO, the statute=s jurisdictional provision for civil actions. 27. Venue is proper and appropriate, pursuant to 28 U.S.C. 1391(a)(1) and (2).
CLASS ALLEGATIONS 28. This action is brought, and may be maintained, as a class action pursuant to FED. R. CIV. P. 23(b)(3). Plaintiffs bring this action on behalf of themselves and all other persons, legally authorized to be employed in the U.S., who have been employed at the Swift facilities as hourly wage earners. 29. The Class for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. The actual number can only be ascertained through a discovery of Swift=s books and records. 30. Among the questions of fact and law that are common to the Class are:
a. Whether the Swift Defendants engaged in the Illegal Immigrant Hiring Scheme;
b. Whether the Defendants have conspired to perpetrate the Illegal Immigrant Hiring Scheme;
c. Whether the Illegal Immigrant Hiring Scheme has caused Plaintiffs= wages to be depressed; and
d. Whether the Illegal Immigrant Hiring Scheme violates the Immigration and Nationality Act and RICO.

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31. Plaintiffs= claims are typical of those of the Class in that they arise from the damages they have suffered as a result of the Illegal Immigrant Hiring Scheme. Plaintiffs seek no relief that is antagonistic to or adverse to the other Class members.
32. Plaintiffs are committed to the vigorous prosecution of this action and have retained counsel who are competent in the prosecution of this case and who intend to adequately protect and represent the interests of the Class.
33. Questions of law or fact common to the Class predominate over issues affecting individual Class members. A class action is the only appropriate method for the fair and efficient adjudication of this controversy for the following reasons, among others:
a. The individual amounts of damages involved, while not insubstantial, are generally not large enough to justify individual actions;
b. The costs of individual actions would unreasonably consume the amounts that would be recovered;
c. Individual actions would unduly burden the judicial system; and d. Individual actions brought by Class members would create a risk of
inconsistent results and would be unnecessarily duplicative of this litigation. 34. Plaintiffs anticipate no extraordinary or unusual difficulty in the management of this action because the evidence proving the Illegal Immigrant Hiring Scheme and the specific identities of all the participants in such (including the specific identities of John Does I-V) is ascertainable through discovery; the identities of the Class members are known to the Swift Defendants; and damages can be calculated to a reasonable certainty through expert testimony.
THE WRONGFUL CONDUCT A. The Illegal Immigrant Hiring Scheme
35. The Immigration Reform and Control Act, 8 U.S.C. ' 1324 et seq., and its accompanying regulations, require employers to verify, under the penalty of perjury, that they have

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examined documents produced by each employee which establish the employee=s authorization for employment in the U.S. Specifically, the employer must verify the documents are genuine and relate to the person tendering them.
36. The Swift Defendants are engaged in a long-term pattern and practice of violating the Immigration Reform and Control Act and the Immigration and Nationality Act which prohibits the employment of unauthorized immigrants. The Swift Defendants do so in numerous ways, including:
a. Instructing employees to falsify employment verification documents; and b. Ignoring obvious facts which indicate that documents do not relate to the people
tendering them, particularly the inability to speak English and hiring workers who appear obviously different than the photographs or descriptions that appear in their stolen identities (herein referred to as the ABlind Eye Policy@). 37. The Blind Eye Policy has been approved by the Swift Defendants and the Individual Defendants and has been long standing policy at the Swift Facilities. B. The Defendants= Attempt to Circumvent IRCA 38. The Swift Defendants have, at various times, used the federal government=s Basic Pilot program in order give the false cursory appearance of complying with the Immigration Reform and Control Act while actively circumventing and subverting such law. 39. Basic Pilot, an internet verification program, confirms that government-issued eligibility documents were actually issued and the name of the person to whom they were issued. However, it does not establish that the person presenting the documents is the actual person to whom they were issued. The employer must still comply with its federally mandated verification requirement, which the Swift Defendants do not do. This scheme by the Swift Defendants is nothing more than a transparent attempt to circumvent the Immigration Reform and Control Act.

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ACTS OF RACKETEERING 40. The Swift Defendants have employed more than twenty (20) individuals each calendar year who did not have the legal right to work at the Swift facilities, pursuant to the immigration and citizenship laws of the United States (hereinafter referred to as the AIllegal Immigrants@). 41. The Illegal Immigrants were willing to work for lesser wages at The Swift Facilities than those individuals who had the legal right to work at The Swift Facilities would have been willing to accept and work for had the Defendants not artificially manipulated the labor market. 42. The Swift Defendants hired the Illegal Immigrants to work at The Swift Facilities even though these Illegal Immigrants did not have the legal right to work there, pursuant to the immigration and citizenship laws of the United States. 43. The Swift Defendants hired these Illegal Immigrants despite knowing and having actual knowledge that it was in violation of the immigration laws of the United States to do so and, in several instances, actively sought to locate these Illegal Immigrants and hire them B knowing full well that it was in violation of the immigration laws of the United States to do so. The Swift Defendants did so in a specific and purposeful attempt to manipulate and depress the labor market. 44. The Swift Defendants violated 8 U.S.C. ' 1324(a)(3) by knowingly hiring for employment in any 12-month period at least 10 individuals with actual knowledge that they were illegal aliens. Moreover, the Swift Defendants had actual knowledge that such individuals had been brought into the United States in violation of 8 U.S.C. ' 1324(a) and for the express purpose of illegal employment. 44. The Swift Defendants violated 8 U.S.C. ' 1324(a)(1)(A)(iii) by concealing, harboring and shielding from detection unauthorized, illegal immigrants with knowledge or reckless disregard

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that each cam to, entered or remained in the U.S. illegally. Among other acts, the Swift Defendants violated 8 U.S.C. ' 1324(a)(1)(A)(iii) by:
a. Employing thousands of illegal immigrants; b. Assisting the illegal immigrants in obtaining obtain false documents relating to their identity and/or immigration status; c. Providing the illegal immigrants with advice on how to avoid detection by the authorities; d. Providing the illegal immigrants with advice on how to be hired and re-hired despite their illegal immigrant status; e. At a time in which they were aware of upcoming immigration raids by government authorities, identifying more than 400 illegal immigrant employees who were either terminated or quit their employment without informing the government authorities of the identities or location of the illegal immigrants, thereby shielding such illegal immigrants from detection. f. Taking steps to delay or prevent immigration raids by government authorities; and g. Warning the illegal immigrants they employed of upcoming immigration raids by government authorities. 45. The Defendants have aided and abetted in harboring, concealing, transporting, and smuggling Illegal Immigrants in violation of section 274 of the Immigration & Nationality Act. 46. These federal crimes of Aknowingly hiring@ and Aharboring@ illegal immigrants are provisions of ' 274 of the Immigration and Nationality Act and are made predicate offenses by ' 1961(1)(F) of RICO.

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RICO 47. Defendants= activities alleged herein are conducted in violation of the Racketeer Influenced and Corrupt Organization Act (ARICO@), 18 U.S.C. ' 1961, et seq. 48. The Defendants are each Apersons@ capable of holding a legal or beneficial interest in property within the meaning of 18 U.S.C. ' 1961(3). 49. In hiring Illegal Immigrants and thereby artificially depressing the labor market, as set forth herein, the Defendants associated themselves in managing an enterprise that grossly affected interstate commerce through a pattern of racketeering activity. The activity of the Defendants constitutes an ongoing scheme to defraud those persons who had the legal right to work at The Swift Facilities, including the Plaintiffs. Each of the Defendants is liable to Plaintiffs as a principal in the scheme. Each of the Defendants is additionally liable to Plaintiffs for any and all acts of its employees or agents under the doctrine of respondeat superior and principles of agency. 50. In furtherance of their scheme, the Defendants have knowingly, willfully and unlawfully engaged in a pattern of fraudulent and illegal conduct to defraud and artificially depress the labor market, including repeated violation of The Illegal Immigration Reform and Immigration Responsibility Act of 1996. 51. Each separate use of the United States mails or interstate wire communications in furtherance of the Defendants= fraud and scheme constitutes a racketeering activity under 18 U.S.C. ' 1961 (1)(B). 52. Each separate violation of The Illegal Immigration Reform and Immigration Responsibility Act of 1996 in furtherance of the Defendants= fraud and scheme constitutes a racketeering activity under 18 U.S.C. ' 1961 (1)(B).

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53. The Defendants have committed at least two acts of racketeering activity not separated by more than ten years since the enactment of RICO. The Defendants= ongoing and systematic efforts to defraud those individuals who had the legal right to work at The Swift Facilities, including Plaintiffs, pose a threat of ongoing and continuing illegal activity. The Defendants are engaged in a pattern of racketeering activity under U.S.C ' 1961(5).
54. The Defendants were, at all times relevant, engaged in an enterprise as that term is defined in 18 U.S.C. ' 1961(4) and engaged in (and its activities affect) interstate commerce by, but not limited to the transportation of Illegal Immigrants across the borders of the United States and by and between different states of the United States and by the processing and selling of meat across the United States that was processed as a result of the illegal scheme to manipulate and depress the labor market.
55. The Defendants have, as set forth herein, engaged in a pattern of racketeering activity in connection with the acquisition, establishment, conduct or control of their joint enterprise.
56. By manipulating and controlling the labor market, The Defendants have acquired or maintained an interest in, or control of, an enterprise affecting interstate commerce through their pattern of racketeering activity in violation of 18 U.S.C. ' 1962(b).
57. The Defendants have been employed or associated with an enterprise which is engaged in, or the activities of which affect, interstate commerce and have conducted or participated in the conduct of that enterprise=s affairs through the pattern of racketeering activity described herein in violation of 18 U.S.C. ' 1962(c). A. The Wrongful Documentation Enterprise
58. The Individual Defendants and the Swift Defendants entered into various agreements with persons to help get fake immigration documentation for individuals who the Defendants knew

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were illegal immigrants (herein referred to as the Adocumentation middlemen@). They entered into these agreements in a specific and calculated manner in an attempt to further their Blind Eye Policy. However, pursuant to the Illegal Immigrant Hiring Scheme, the Defendants knew that this documentation was false. At all times relevant, the management at the Swift Facilities knew the workers supplied by the documentation middlemen were driving down wages below the level at which they would have been but for the illegal conduct of the Defendants.
59. At all times relevant, the documentation middlemen, who were retained to help prospective employees obtain fake and false immigration documentation, maintained their own business operations and were not agents of the Swift Defendants and were paid a fee for their work performed.
60. The Defendants reviewed the fake immigration documentation obtained by the documentation middlemen and, pursuant to the Blind Eye Policy, accepted such documentation when they knew that such workers were Illegal Immigrants. The management of the Swift Facilities acquiesced and approved of this illegal hiring.
61. Plaintiffs allege that each relationship with the documentation middlemen formed and association-in-fact RICO enterprise, pursuant ' 1961(4), with the purpose of recruiting hourly employees to the Swift Facilities. The Defendants participated in the affairs of each of these association-in-fact enterprises by paying for services for workers that it knew to be illegal immigrant labor.
62. Each of these association-in-fact RICO enterprises affected interstate commerce. The Swift Defendants participated in the affairs of each enterprise through a pattern of racketeering activity, knowingly employing and harboring illegal immigrants, as set forth herein. As a result, the Swift Defendants are each a RICO Aperson@, pursuant to ' 1961(3).

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63. Plaintiffs were proximately damaged as a direct result of the pattern of racketeering activity perpetrated by the Swift Defendants through each of these association-in-fact enterprises because this pattern of racketeering activity caused the wages paid at the Swift Facilities to be depressed below what they would have been in the labor market consisting only of legal workers. B. The Swift Enterprise
64. The Individual Defendants have entered into a conspiracy, as set forth herein, to carry out the Illegal Immigrant Hiring Scheme by furthering such scheme in a specific ongoing way. They have approved the Blind Eye Policy; agreed to pay hourly wages that they knew were below what an entirely legal workforce would command and entered into associations with the documentation middlemen.
65. Each of the Individual Defendants is a person, pursuant to ' 1961(3), who agreed to the objective of carrying out the Illegal Immigrant Hiring Scheme and that the Scheme would be perpetrated by the members of the conspiracy. In addition, each co-conspirator knew that the Illegal Immigrant Hiring Scheme would entail a pattern of racketeering activity, the ongoing employment of thousands of illegal immigrants. Additionally, each member of the conspiracy agreed that the conspiracy would be undertaken by participating in the employment practices and policies of the Swift Facilities. Each co-conspirator is in management of the Swift Facilities or participated indirectly in such management.
66. All of the conspirators agreed that the Illegal Immigrant Hiring Scheme would be conducted through the Swift Facilities, which is an enterprise, pursuant to ' 1961(4), affecting interstate commerce.
67. All of the conspirators agreed to the conspiracy to enrich themselves by enriching the Swift Defendants at the expense of Plaintiffs by depressing wages.

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C. Conspiracy to Violate RICO 1. The Individual Defendants 68. The Individual Defendants have violated ' 1962(d) of RICO by conspiring to violate
' 1962(c) of RICO. Their agreement, as set forth herein, was to execute the Illegal Immigrant Hiring Scheme. They have all knowingly and willfully entered this conspiracy, agreeing that members of the conspiracy, which also include individuals conducting hiring at the Swift Facilities, would, pursuant to the policies they had established, hire hundreds of illegal immigrants as hourlypaid workers for the purpose of depressing wages. Each co-conspirator also agreed that the RICO predicate acts constituting the Illegal Immigrant Hiring Scheme, detailed above, would be committed through the Swift Facilities, a RICO enterprise.
69. Each co-conspirator is jointly and severally liable for all of the damages to the Plaintiffs and the amount of money their wages were depressed during the entire class period, which began in 2000 and continues through trial.
2. The Swift Defendants 70. The Swift Defendants, in their operation of the Swift Facilities, in addition to being the enterprise for the individual defendants detailed above, are also RICO Defendants. They have violated ' 1962(c) of RICO by committing a pattern of racketeering activity, the Illegal Immigrant Hiring Scheme, through the association-in-fact enterprises. 71. By hiring the Illegal Immigrants, the Defendants were able to artificially depress the wages they had to pay to those individuals who the legal right to work in the United States, including the Plaintiffs. 72. By illegally increasing the competition for jobs at The Swift Facilities, the Defendants were able to pay those individuals who had the legal right to work in the United States, including

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Plaintiffs, less wages than they otherwise would have had to pay them had the Defendants not engaged in such illegal activity.
73. The Defendants paid the Plaintiffs, during the time period they were employed at The Swift Facilities, substantially less in wages than they would have had to pay them if the Defendants had not engaged in the illegal activity of employing Illegal Immigrants and illegally manipulating and depressing the labor market. D. RICO Damages
74. As set forth herein, as a direct and proximate cause of the racketeering activity of all of the Defendants through the various RICO enterprises and violations of 18 U.S.C. ' 1962(a), (b) & (c) by the depression of wages as a result of the Illegal Immigrant Hiring Scheme, Plaintiffs have been damaged. At all relevant times, the hourly wages earned by Plaintiffs were depressed below what they would have been had the Defendants not engaged in the Illegal Immigrant Hiring Scheme.
CIVIL CONSPIRACY 75. Defendants have engaged and participated with agents, brokers and other individuals in an effort to intentionally violate the immigration laws of the United States and employ Illegal Immigrants for the specific purpose of lessening its labor costs and increasing its profits. 76. Defendants and their co-conspirators have acted in combination to wrongfully and illegally depress and artificially lower the wages paid to individuals at The Swift Facilities who had the legal right to work in the United States, including the Class Members. 77. This conspiracy by the Defendants was committed with malice and specific intent to harm the individuals who had the legal right to work at Swift Company, including the Class Members.

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78. Defendants have been unjustly enriched by their conspiracy to illegally and artificially lower the wages of those individuals who had the legal right to work at The Swift Facilities and the Class Members have been damaged as a result of such conspiracy.
79. As a direct and proximate cause of the civil conspiracy of the Defendants, the Class Members, including Plaintiffs, have been injured and damaged in an amount not yet determined and are entitled to the recovery of such actual damages.
80. Because of Defendants= malicious and intentional conspiracy to harm the Class Members, the Class Members seek, in addition to any actual damages awarded, the imposition of exemplary damages against the Defendants, in the collective amount of Twenty-Three Million Dollars ($23,000,000), in an attempt to deter Defendants (and others similarly situated as Defendants) from engaging in this type of conduct in the future.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That the Court certify the Class, pursuant to FED. R. CIV. P. 23(b)(3): B. That the Court enter a judgment against the Defendants setting forth specific
findings that the Defendants have: (1) engaged in a civil conspiracy to defraud Plaintiffs, and did so knowingly,
intentionally and with malice; (2) conspired to wrongfully and illegal manipulate and depress the labor
market, and did so knowingly, intentionally and with malice; and (3) violated RICO, 18 U.S.C. ' 1961, et seq., and did so knowingly,
intentionally and with malice; C. That the Court order the Defendants to pay, jointly and severally, the following:
(1) Actual economic damages in an amount within the jurisdictional limits of the Court;
(2) Threefold the economic damages as allowed by 18 U.S.C. ' 1964(c);

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(3) The amount equal to all profits unlawfully earned by Defendants as a result of their unlawful conduct;
(4) Exemplary damages in the amount of Twenty-Three Million Dollars ($23,000,000);
(5) Pre-Judgment Interest as provided by law;
(6) Appropriate attorney=s fees;
(7) Costs of Suit;
(8) Post-Judgment interest as provided by law; and
(9) Such other and further relief to which Plaintiffs may be justly entitled.
Respectfully submitted,
/s/ Charles W. Miller Michael E. Heygood State Bar No. 00784267 Eric D. Pearson State Bar No. 15690472 Charles W. Miller State Bar No. 24007677 HEYGOOD, ORR, REYES, PEARSON & BARTOLOMEI 2331 W. Northwest Highway, 2nd Floor Dallas, Texas 75220 (214) 526-7900 Telephone (214) 526-7910 Facsimile
ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE
I hereby certify that on March 14, 2008, I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case files system of the court. The electronic case files system sent a “Notice of Electronic Filing” to the following individuals who have consented in writing to accept this Notice as service of this document by electronic means:
Robert E. Youle SHERMAN & HOWARD, LLP 633 Seventeenth Street, Suite 3000 Denver, CO 80202
Ken Carroll CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, LLP 901 Main Street, Suite 500 Dallas, Texas 75202
T. Ray Guy WEIL GOTSHAL & MANGES, LLP 200 Crescent Court, Suite 300 Dallas, Texas 75201
/s/ Charles W. Miller Charles W. Miller

PLAINTIFFS’ SECOND AMENDED COMPLAINT

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 Case 3:06-cv-02322 Document 30 Filed 08/22/2007 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BLANCA VALENZUELA, MARGIE

§

SALAZAR, JOSE E. SERRATO, JOSIE

§

RENDON, CLARA TOVAR, CONSUELO §

ESPINO, MARIA AVILA, ERNESTINA §

NAVARRETTE, MARIA E. MUNOZ,

§

AMANDA SALCIDO, CANDELARIO G. §

ORTEGA, MARIA ORTIZ, JOSE OLlVA, §

RAFAELA CHAVEZ, ELODIA ARROYO, §

SUSANA CARDIEL, GRACIE RIOS, AND §

LEONEL RVIZ, individually and on behalf §

ofall others similarly situated,

§

§

Plaintiffs

§

v.

§

§

SWIFT BEEF COMPANY, INC. D/B/A

§

SWIFT COMPANY, SWIFT &

§

COMPANY, HICKS, MUSE, TATE &

§

FURST, INC., HM CAPITAL PARTNERS §

OF DALLAS, LLC, and JOHN DOES I-V, §

§

Defendants.

§

CIVIL ACTION NO. 3:06-CV-02322-N ECF

JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE OF DEFENDANTS HICKS, MUSE, TATE & FURST. INC. AND HM CAPITAL PARTNERS OF DALLAS. LLC

WHEREAS, Plaintiffs filed a First Amended Complaint in the above action on

December 28, 2006 ("Amended Complaint") naming HM Capital Partners of Dallas, LLC and

Hicks, Muse, Tate & Furst, Inc. (collectively, the "HM Defendants") as defendants; and

WHEREAS, pursuant to the agreement of the parties, the HM Defendants should be

dismissed from the above action;

THEREFORE, the parties stipulate and agree as follows:

JOINT STIPULATION OF DISMISSAL
DA I:\484529\02\@DV502!.DOC\52626.0701

PAGEl

Case 3:06-cv-02322 Document 30 Filed 08/22/2007 Page 2 of 4
1. Pursuant to Rule 41 (a)(1) of the Federal Rules of Civil Procedure, all claims against the HM Defendants are hereby dismissed without prejudice, with all parties to bear their own costs and attorney's fees.
2. This stipulation is without prejudice to any party's rights to assert any defense or argument against any other party in this action.

JOINT STIPULATION OF DISMISSAL
DA I;\484529\o2\@DV502!.DOC\52626,070IDAI:\484S29\02\@DV502!. DOC\S2626.070 1

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Case 3:06-cv-02322 Document 30 Filed 08/22/2007 Page 3 of 4

SO STIPULATED:
siT. Ray Guy
T.RayGuy State Bar No. 08648500 Robert M. Castle, III State Bar No. 24036338 Aimee N. Blanchard State Bar No. 24050297
WElL, GOTSHAL & MANGES LLP 200 Crescent Court, Suite 300 Dallas, Texas 75201-7830 Telephone: (214) 746-7700 Facsimile: (214) 746-7777 ray.guy@weiI.com rob.castle@weil.com aimee.blanchard@weil.com
ATTORNEYS FOR DEFENDANTS HM CAPITAL PARTNERS OF DALLAS, LLC AND HICKS, MUSE, TATE & FURST, INC.
sl Carol C. Payne
Karen L. Hirschman State Bar No. 09721500 Carol C. Payne State Bar No. 00788865
VINSON & ELKINS LLP Trammell Crow Center 200 I Ross Avenue Suite 3700 Dallas, TX 75201-2975
ATTORNEYS FOR DEFENDANTS SWIFT BEEF COMPANY, INC. D/B/A SWIFT COMPANY AND SWIFT & COMPANY

sl Michael E. Heygood
Michael E. Heygood State Bar No. 00784267
HEYGOOD, ORR, REYES & BARTOLOMEI 2331 W. Northwest Highway, 2nd Floor Dallas, Texas 75220 (214) 526-7900 telephone (214) 526-7910 facsimile e-mail: Michael@ReyesLaw.com
ATTORNEY FOR PLAINTIFFS

JOINT STIPULATION OF DISMISSAL
OAt :\484S29\o2\@DV502!.DOC\S2626.070IDAl:\484S29\02\@DV502!. DOC\52626.0701

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Case 3:06-cv-02322 Document 30 Filed 08/22/2007 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who are deemed to have consented to

electronic service are being served with a copy of the foregoing document via the Court's CMlECF system pursuant to the Court's Local Rules this 220d day of August, 2007. All other

counsel will be served by United States mail, certified mail/return receipt requested.

T. Ray Guy Weil, Gotshal & Manges, LLP 200 Crescent Court Suite 300 Dallas, Texas 75201
Carol C. Payne Vinson & Elkins LLP Trammell Crow Center 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2975

Domingo Garcia
Law Offices of Domingo Garcia 400 S. Zang Blvd., 6th Floor
Dallas, Texas 75208

s/ Michael E. Heygood Michael E. Heygood

~~~5""02\I@D\'502!.DOC'52626.0701

PAGE 4

 
 Case 3:06-cv-02322-N Document 45 Filed 12/20/07 Page 1 of 21 PageID 926

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

BLANCA VALENZUELA, et al.,

§

§

Plaintiffs,

§

§

v.

§

§

SWIFT BEEF COMPANY, INC., et al., §

§

Defendants.

§

Civil Action No. 3:06-CV-2322-N

ORDER

This Order addresses Defendants Swift Beef Company, Inc. and Swift & Company’s

(collectively, “Swift”) motion to dismiss [20]. For the reasons described below, the Court

grants in part and denies in part Swift’s motion.

I. THE ILLEGAL HIRING SCHEME

This is a putative class action brought on behalf of all persons legally authorized to

be employed in the United States who have been employed at Swift’s processing plants as

hourly wage earners. The plaintiffs allege that their wages were depressed because Swift

illegally recruited and hired illegal aliens; theyallege that Swift’s access to cheap and illegal

labor provided Swift with the ability to bargain for lower wages in the collective bargaining

process. They have filed suit against Swiftas a corporate entity and against five John Does

– unidentified members of Swift’s management (collectively, “Management”). 1

1It is not entirely clear if the John Does are exclusively Swift management or if the “documentation middlemen,” described below, are also John Does. Plaintiffs’ briefing suggests that the John Does are all Swift managers, so the Court proceeds under the

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More specifically, Plaintiffs allege that Management has run an illegal hiring scheme whereby it has:
1. Paid individuals to provide false doc umentation for illegal alien employees and otherwise assisted in obtaining false employment documentation for illegal alien employees.
2. Ignored obvious facts that indicate that docum ents do not relate to the people tendering them (“Blind Eye Policy”).
According to Plaintiffs, Management has, by engaging in these activities, committed RICO predicate offenses of harboring illegal aliens under 8 U.S.C. § 1324(a)(1)(a)(iii) and hiring illegal aliens under 8 U.S.C. § 1324(a)(3). Plaintiffs further allege two distinct RICO enterprises. The activities of the “Swift Enterprise” are perpetrated solely by Management in its adoption of the Blind Eye P olicy and in its aiding em ployees to obtain false documentation. The activities of the “Wrongful Documentation Enterprise” are perpetrated by Management in tandem with unknown pe rsons whom Plaintiffs have dubbed the “documentation middlemen.” Managem ent allegedly collaborated with docum entation middlemen to provide prospective employees with false documentation.
Swift now moves to dismiss for lack of jurisdiction, for failure to join necessary and indispensable parties, for lack of standing, and for failure to state a claim.
II. THE COURT HAS JURISDICTION DESPITE THE NLRB The National Labor Relations Board (“NLRB”) does not have prim ary jurisdiction over Plaintiffs’ RICO claims. Swift argues that Plaintiffs’ claims can ultimately be reduced
assumption that they are.
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to a claim that Swift fa iled to “bargain in good faith” when it entered the collective bargaining agreement that set the wages at a depressed level. Because the duty to bargain in good faith is regulated by the NLRB, Swift argues, the NLRB, and not the Court, should review the Plaintiffs’ claim. Of the numerous courts considering analogous cases, the Court is aware of none tha t has abstained on the grounds of NLRB’s prim ary jurisdiction. Furthermore, the two courts that have explicitly considered the argum ent have rejected it. Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 609-11 (6th Cir. 2004); Baker v. IBP, Inc., 357 F.3d 685, 688-90 (7th Cir. 2004). As the Seventh Circuit explained, “[e]mployers and unions bargain in the shadow of supply and demand; they do not bargain about what supply and demand will be.” Baker, 357 F.3d at 690. The Plaintiffs have alleged that Swift illegally increased the supply of labor and bargained in the shadow of that increased supply – not that Swift failed to bargain. “In the absence of a request to bargain and a refusal to do so, no one could file a charge with the NLRB; in the abse nce of a (potential) charge the Board lacks primary jurisdiction over the suit.” Id. at 689.
Nor does Swift’s argument that calculation of damages must “refer” to the collective bargaining process transform Plaintiffs’ claim into a m atter within the NLRB’s prim ary jurisdiction. While the NLRB has prim ary jurisdiction over the collective bargaining process, it does not have prim ary jurisdiction over “referring to” or “analysis of” the
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collective bargaining process.2 Accordingly the Court may exercise jurisdiction and consider Plaintiffs’ claims.
III. THE LABOR UNIONS ARE NOT NECESSARY PARTIES The labor unions that represented Plaintiffs in the collective bargaining process are not necessary parties. Rule 19 requires a court to join an absent party if feasible where: the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the persons ability to protect the interest or (ii) leave any of the persons already parties subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. FED. R. CIV. P 19(a). Although it is close, the unions’ interests are not implicated enough to render them necessary parties. Swift claims the case’s outcome could affect the the unions’ future bargaining positions, the em ployees’ perception of the unions, and the unions’ contracts with Swift. With respect to the first two alleged union interests, Swift cites no authority for its suggestion that such vague and speculative interests are of the type Rule 19 is meant to protect. With respect to the third alleged interest, it is dif ficult to see why the unions would object to th e Plaintiffs’ acquisition of back pay and – if the collective bargaining agreement is still in place – payments for future losses. The Court can also not
2It is not even clear to the Court that extensive analysis of the collective bargaining process would be necessary. Thus, e ven if Plaintiffs claims did involve issues within the primary jurisdiction of the NLRB, the Court would likely still be able to consider the Plaintiffs’ claims under the collateral exception to NLRB primary jurisdiction. See Connell Const. Co., Inc., v. Plumbers & Ste amfitters Local Union No. 100 , 421 U.S. 616, 626 (holding that “federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies”).
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discern the foundation for Swift’s claim that it would face a substantial risk of inconsistent obligations. Without further description as to how a judgment rendered in this case “in the local unions’ absence would prejudice Swift by exposing it to a court m andate that would conflict with its contractual obligations under the num erous collective bargaining agreements,” see Swift’s Motion to Dismiss at 10, the Court cannot find that the unions are necessary parties. See Scott v. City of New York, 340 F. Supp. 2d. 371, 383 (S.D.N.Y. 2004) (finding that labor unions were not necessa ry because employees sought only m onetary damages against employer, the unions claimed no legal interest, and the risk of inconsistent obligations was relatively insignificant).
IV. THE UNIONS ARE NOT EXCLUSIVE PARTIES UNDER 29 U.S.C. § 159(A). Although the Seventh Circuit, citing 29 U.S.C. § 159(a), held that unions, and not employees, are the proper representatives for claims such as the Plaintiffs’, Baker, 357 F.3d at 690-91, the Court is more persuaded by the more recent and contrary analysis offered by the Sixth Circuit. Trollinger, 370 F.3d at 620-22. Section 159(a) provides in pertinent part: Representatives designated or selected for the purposes of collective bargaining by the m ajority of the em ployees in a unit a ppropriate for such purposes, shall be the exclusive representatives of all the em ployees in such unit for the purposes of collective bargainingin respect to rates of pay, wages, hours of employment, or other conditions of employment . . . 29 U.S.C. § 159(a) (em phasis added). Because Plaintiffs’ claim concerns wages, Swift argues that the unions are the only proper parties. That argument gives unwarranted scope to section 159(a). As the Trollinger court explained, “[o]nly when a collective bargaining agreement includes an exclusive contractual remedy must an employee involve the union in
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a lawsuit.” 370 F.3d at 621 (citing Vaca v. Sipes, 386 U.S. 171 (1967)). In Trollinger, as here, the case involved allegations of RICO vioaltions – not an alleged breach of a collective bargaining agreement with an exclusive contractual remedy. Id. Accordingly, the unions are not the only appropriate parties.3
V. RULE 12(B)(6) STANDARD When faced with a Rule 12(b)(6) motion to dismiss, the Court must determine whether the plaintiff has asserted a legally sufficient claimfor relief. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). According to the Supreme Court, a viable complaint must include “enough facts to state a claim to relief that is plausible on its face,” i.e., “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claimor element].” Bell Atlantic Corp. v. Twombly , ___ U.S. ___, 127 S. Ct. 1955, 1965, 1974 (2007).4 A plaintiff is required, however, to provide “more than labels and conclusions, and a formulaic recitation of a cause of action will not do.” Id. at 1965. “Fa ctual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”Id. (citations omitted).
3Swift argues that the Trollinger court’s analysis was incorrect beca use it did not distinguish between individual actions and class actions, but it is not at all clear why the distinction should be regarded as important. Furthermore, to the extent that any members of the putative class are no longer em ployed by Swift, Swift’s a rgument suggests that those former employees must be represented by a union of which they are no longer m embers. Such a result is at least odd and counts against Swift’s argument.
4“Although the context of this discussion in Bell Atlantic was the Sherm an Act, nothing in the reasoning of the decision would appear to lim it its scope to S herman Act Claims.” Halaris v. Viacom Inc., No. 3:06-CV-1646-N, at 9 (N.D. Tex. Sept. 21, 2007).
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In ruling on a Rule 12(b)(6) m otion, the court must limit its review to the face of the pleadings, accepting as true all well-pleaded facts and viewing them in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
VI. PLAINTIFFS HAVE PLED ONLY PREDICATE HARBORING OFFENSES Plaintiffs allege that Managem ent’s illegal hiring schem e constituted a pattern of racketeering activity that is actionable under RICO. Specifically, Plaintiffs claim that the alleged activity violates 8 U.S.C. § 1324 (a)(3) and 1324(a)(1)(A)(iii), hiring and harboring offenses, respectively. Although the Court does not find that Plaintiffs have adequately pled hiring offenses, it finds that they have pled harboring offenses.5
A. Plaintiffs Have Not Pled Hiring Offenses For Plaintiffs to have pled a violation of 8 U.S.C. § 1324(a)(3), Plaintiffs’ must have pled that Management actually knew the illegal aliens it hired were smuggled into the United States. The section provides: (A) Any person who, during any 12-m onth period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under Title 18 or imprisoned for not more than 5 years, or both. (B) An alien described in this subparagraph is an alien who-(i) is an unauthorized alien . . .and (ii) has been brought into the United States in violation of this subsection. 8 U.S.C. § 1324(a)(3) (emphasis added). In contrast, 8 U.S.C. § 1324a(a)(1)(A) provides:
5Insofar as Swift argues that the allegations of predicate offenses are insufficiently specific, the Court rejects the argument. The Plaintiffs’ allegations are enough to make it plausible that Management has illegally harbored aliens over an extended period of time.
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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). While Section 1324(a)(3) is a predicate offense for the purposes of RICO, Section 1324a(a)(1)(A) is not. See 18 U.S.C. § 1961(1)(F). Relying in part on this contrast, numerous courts have pointed out that a plaintiff states a predicate hiring offense only if he alleges that a defendant had actuakl nowledge that it employed an illegal alien who was brought into the United States in violation of the statuteS.ee, e.g., Commercial Cleaning Services, L.L.C. v. Collin Service Sys., Inc,.271 F.3d 374, 387 (2d Cir. 2001);Zavala v. WalMart Stores, Inc., 393 F. Supp. 2d 295, 309 (D.N.J. 2005); Sys. Mgmt., Inc., v. Loiselle, 91 F. Supp. 2d 401, 408 (D. Mass. 2000). Although courts agree that a plaintiff is required to plead actual knowledge of smuggling6 in order to plead a predicate offenseunder 8 U.S.C. § 1324(a)(3), courts disagree as to what level of detail satisfies that requirement. For example, courts in the Ninth Circuit have applied a very liberal pleading standard to allow com plaints to stand. See, e.g., Mendoza v. Zirkle Fruit Co. , 301 F.3d 1163, 1168 (9th Cir. 2002) (finding adequate the allegations “that the defendants had knowledge of illegal harboring ‘and/or’ smuggling”). In contrast, other courts have dismissed complaints because plaintiffs failed “to allege that the defendant had knowledge of how the alienshad been brought into the United States and
6Whether “smuggling” is the correct word is a matter for debate. It is possible that section 1324(a)(3) would be violated even if a defendant only had knowledge of activities that may not quite qualify as “smuggling.” See Trollinger v. Tyson Foods, Inc., 2007 WL 1574275, at *6 n.10. Because the Plaintiffs have failed to allege Managem ent had actual knowledge of any violations of section 1324(a), the Court need not address the issue.
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that they were brought into the United States in violation of this em ployment provision.”
Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 309 (D.N.J. 2005); Sys. Mgmt., Inc., v. Loiselle, 91 F. Supp. 2d 401, 408 (D. Mass. 2000).7
In the light of Twombly, 127 S. Ct. 1955, the Court finds that the Plaintiffs have not
pled that Managem ent knew the illegal aliens it hired were sm uggled into the country.
Plaintiffs’ conclusory allegation in paragraph47 of its First Amended Complaint that “[t]he
Defendants have aided and abetted in harboring, concealing, transporting, and sm uggling
Illegal Immigrants in violation of section 274 of the Imigration and Nationality Act [section
1324]” is not “enough to raise a right to re lief above the speculative level.” Id. at 1965 (a
plaintiff is required to provide “more than labels and conclusions, and a formulaic recitation
of a cause of action will not do.”). The Court can find no other allegation in the complaint
that could even arguably satisfy Pla intiffs’ pleading requirements. In fact, the com plaint,
taken as a whole, strongly suggests that Plaintiffs’ regarded the mere act of knowingly hiring
an illegal im migrant as a predicate offense, and their factual allegations track that
7Another court allowed a complaint to stand because the plaintiffs’ allegation that the defendant knowingly hired thousands of illega l immigrants, coupled with the “widely known” fact that a substantial portion of illegal immigrants are smuggled into the country, amounts to an allegation that the plaintiff knew som e number of the illegal im migrants it hired were sm uggled into the country. See Trollinger v. Tyson Foods, Inc. , 2007 WL 1574275, at *7. One m ajor problem with this approach is that the type of knowledge it describes is not “actual knowledge.” The Courat lso doubts whether this type of constructive knowledge would be sufficient to perm it calculation of dam ages. Calculating dam ages would require determining the depression in wages caused by the harboring violations, i.e., determining the depression in wages caused by a defendant’s hiring illegal a liens whom it also knew to be smuggled . Of course, to determ ine the depression in wages caused by harboring violations, first requires determining how many hired illegal aliens the defendant knew were smuggled. “Some number” is an inadequate answer.
ORDER – PAGE 9

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misunderstanding. Accordingly, the Court holds that Plaintiffs have not adequately pled predicate hiring offenses.
B. Plaintiffs Have Pled Harboring Offenses By alleging that Management both employed illegal aliens and provided them with or assisted themin obtaining false employment documentation, Plaintiffs have pled predicate harboring offenses under 8 U.S.C. § 1324(a)(1)(A)(iii). That section provides that an offense is committed by any person 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 fromdetection, such alien in any place, including any building or any means of transportation 8 U.S.C. § 1324(a)(1)(A)(iii). 8 In support of its argum ent that Plaintiffs ha ve not pled harboring, Swift cites Brewer v. Slayer, 2007 U.S. Dist. LEXIS 36156 (E.D.Cal. May 17, 2007). In that case, the court held that “ employment is distinc t from harboring and allegations in a complaint that a defendant employs undocumented aliens are insufficient to also allege harboring of undocumented aliens under 8 U.S.C. § 1324(a)(1)(A)(iii).” Id. at *27 (emphasis in original). While allegations of employment alone may not be enough, the Fifth Circuit has indicated that allegations of employment, coupled with allegations that a defendant provided false identification, is sufficient to plead a harboring offenseS. ee United States v. Shum , No. 06-11002, slip op. at 3 (5th Cir. Aug. 10, 2007). The Court upheld
8In order for the offense to be a RICO pr edicate offense, it must also be done for financial gain. 18 U.S.C. § 1961(F). It is undisputed that financial gain wa s the motive in this case.
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Shum’s conviction because there was “ample evidence” that the defendant “provided aliens with employment in the United States and took steps that would shield their identities from detection by the government.” Id. In support of its decision, the Fifth Circuit cited United States v. Kim, 193 F.3d 567 (2d Cir. 1999). That case held that harboring “encom passes conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to pre vent government authorities from detecting his unlawful presence.” Id. Accordingly, the Court finds that Plaintiffs have pled harboring offenses by alleging both employment and provision of false documentation.9
VII. PLAINTIFFS’ ALLEGATIONS SATISFY RICO’S PROXIMATE CAUSE STANDARD Plaintiffs’ allegation that Management’s employment of harbored illegal workers
depressed their wages satisfies RICO’s proximate cause standard. The Court agrees with the Eleventh Circuit’s extensive analysis inWilliams v. Mohawk Industries, Inc. 465 F.3d 1277, 1287-91 (11th Cir. 2006). The Mohawk court held that allegations of illegal hiring and harboring are sufficient to meet the proximate cause standard set by the Supreme Court in Anza v. Ideal Steel Supply Corp ., ___ U.S. ___, 126 S.Ct. 1991 (2006). As the court explained, the defendant’s “scheme of knowingly hiring and harboring illegal workers has the purpose and direct result of depressing the wages paid to the plaintiffs.” Mohawk, 465 F.3d at 1289. The court further explained that none of the concerns that led the Suprem e
9Plaintiffs’ success thus ultimately depends on their ability to show that Management employed illegal aliens whom it also helped to acquire false doc umentation and that Management’s employment of those particular aliens depressed their wages. In other words, Plaintiffs cannot recover for any depression in their wages caused by the employment of aliens whom Management did not also help to acquire false documentation.
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Court to find no proximate cause in Anza was present: “there is no more direct injured party who could bring suit . . . .Anza’s concern about blurring the line between RICO and antitrust laws is wholly missing . . . .Anza’s concern about speculative, ‘intricate, uncertain inquiries,’ and unwieldy apportionment are not im plicated in this case because . . . plaintiffs are [defendant’s] own employees who seek to recover the dim inution in wages they received directly from [the defendant].” Id. at 1290
Swift fails to distinguish this case from Mohawk. Swift points out that the plaintiffs in Mohawk alleged that the defendant employed thousands of illegal workers in a particular narrow labor market dominated by the defendant. In contrast, Plaintiffs here make no such allegations. Swift’s argument seems to be that, absent such conditions, it would be difficult to determine what effect the illegal hiring scheme had on Plaintiffs’ wages. Relying on Anza’s declaration that “the less direct an injury is, the more difficult it becomes to ascertain the amount of plaintiffs’ dam ages attributable to the violation, as distinct from other independent factors,” 126 S.Ct. at 1997, Swift argues that Plaintiffs’ have not pled a direct injury – a requisite to satisfying RICO’s proximate cause standard. The Court disagrees. Although an indirect injury entails difficult dam age proof issues, the presence of difficult damage issues does not make an injury indirect. The ultimate question is whether the alleged injury is actually direct. Despite the fact that identification of daamges may be more difficult in this case, Mohawk’s answer to that question stands unaffected. Unlike in Anza, where a plaintiff company alleged it was damaged by its competitor’s illegal failure to pay taxes and the competitor’s resultant ability to offer lower prices, the Plaintiffs have here alleged that
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Management’s “employment and harboring of illegal workers has the purpose and direc t

result of depressing the wages paid to the plaintiffs.”

Mohawk, 465 F.3d at 1289.

Accordingly, the Court finds that Plaintiffs have pled proximate cause.10

VIII. SWIFT IS NOT A MEMBER OF THE “SWIFT ENTERPRISE”

Although the existenc e of a Swift enterprise is not seriously disputed 11, Swift is

correct in its argument that it is not a m ember of the “Swift Enterprise.” Managem ent, as

individuals, may be liable for conducting the affairs of Swift thr ough a pattern of illegal

harboring. See Schofield v. First Commodity Corp. , 793 F.2d 28, 30 (1st Cir. 1986). But

Swift, as the enterprise, m ay not be also be liable as person in that enterprise; the “RICO

person” sued under 18 U.S.C. § 1962(c) must be distinct from the “RICO enterprise.” See

Bishop v. Corbitt Marine Ways, Inc,. 802 F.2d 122 (5th Cir. 1986). Accordingly, Swift is not

a person that can be liable for the acts committed by members of the Swift Enterprise.12

10Swift’s objections appear oriented to whether Plaintiffs have suffered an injury rather than whether the alleged injury is direct. Anza deals only with the latter issue.
11Swift seems to argue that Plaintiffs have not alleged a “Swift Enterprise” because they have not pled a pattern of racketeer ing activity. Properly understood, this is not an argument that an enterprise did not exist – it is indisputable that Swift Beef Company, Inc. is an enterprise – but a n argument that Plaintiffs have not adequately alleged that Management conducted the affairs of the enterprise through a pattern of racketeering activity – an argument the Court considers and rejects infra, pp. 16-17.
12Also, by citing the general rule that a corporation is capable of acting only through its agents, Plaintiffs cannot avoid the specific and widely accepted rule that a RICO enterprise cannot be liable under RICO for acts com mitted solely by the enterprise ’s members.
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It is not clear if Plaintiffs regard the Swift Enterprise to consist of the different components of Swift (i.e., Swift & Company and Swift Beef Inc.). Plaintiffs might do so in hopes that a component, because it was not the enterprise, could be a liable RICO person. Nonetheless, Plaintiffs have wholly failed to allege such an enterprise. Therefore, the Court dismisses the claims against Swift for violations committed by the Swift Enterprise.
IX. PLAINTIFFS HAVE PLED THE EXISTENCE OF A “WRONGFUL DOCUMENTATION ENTERPRISE”
AND THAT SWIFT IS A MEMBER Perhaps aware that Swift cannot simultaneously be the Swift Enterprise and a person liable for the acts of the Swift Enterprise, Plaintiffs allege the existenc e of a “Wrongful Documentation Enterprise” that consisted of an association in f act between Swift and documentation middlemen. If such an enterprise did exist, Swift could be held lia ble if it conducted that enterprise’s affairs through a pattern of illegal harboring (because Swift would not simultaneously be a sued “RICO person” and the “RICO enterprise”). S wift claims that Plaintiffs allegations of a “Wrongful Documentation Enterprise” are insufficient to state a claimagainst Swift. In making that claim, Swift makes two arguments: (1) that the alleged enterprise did not sa tisfy the Fifth Circuit’s requirem ents, and (2) that the documentation middlemen are agents or em ployees of Swift, so Swift is actually and impermissibly both the RICO enterprise and a RICO person. Both arguments fail. A. Plaintiffs Have Pled the Existence of a Wrongful Documentation Enterprise The existence of an enterprise “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”
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United States v. Turkette, 452 U.S. 576, 583 (1981). The definitive factor in determining the existence of a RICO enterprise is the exis tence of an associati on of individual entities, however loose or inform al, that furnishes a vehicle for the com mission of two or m ore predicate crimes. United States v. Elliot, 571 F.2d 880 (5th Cir. 1978). In other words, the enterprise “(1) must have an existence separate and apart from the pattern of racketeering, (2) must be an ongoing organization and (3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.” Delta Truck & Tractor, Inc., v. J.I. Case Co. , 855 F.2d 241, 243 (5th Cir. 1988). Swift argues that the P laintiffs’ alleged “enterprise” fails to meet all three requirements.
Plaintiffs have alleged that the enterprise has an existence separate and apart fromthe pattern of racketeering. The meaning of this requirem ent has been the subject of disagreement among courts. Some, such as the Eight Circuit, have held that an enterprise must have “an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity.” United States v. Bledsoe, 674 F.2d 647. Others, following the Fifth Circuit’s decision in United States v. Elliot, 571 F.2d 880 (5th Cir. 1978), rejected Bledsoe and found that individuals associating together solely for thepurpose of committing predicate acts may constitute an enterprise. United States v. Cagina, 697 F.2d 915, 917-19 (11th Cir. 1983). For these latter courts, an enterprise, as distinguished froma pattern of racketeering activity, may be proven by an ongoing organization functioning as a continuing unitS. ee id. Similarly, the Fifth Circuit has not adopted the Bledsoe standard and requires only that an enterprise be a “continuing unit with a consensual decision making structure.” United States
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v. Thompson, 253 F.3d 700, 2001 WL 498430, *7 (5th Cir. 2001); see also Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir. 1987) (“[E]nterprises must have an ongoing organization or be a continuing unit, such that the enterprise has an existence that can be defined apart from the commission of the predicate acts.”). Because the Court finds that the Plaintiffs have alleged facts sufficient to plead that the Wrongful Docum entation Enterprise was an ongoing organization and that its members functioned as a continuing uni,t infra at 16-17, the Court finds that Plaintiffs have alleged an enterprise separate and distinct from the pattern of racketeering activity.
Plaintiffs have alleged that the enterprise was an ongoing organization. Swift claims otherwise and simply states that “there are no facts in the Complaint suggesting any of the enterprises are ongoing organizations.” See Swift’s Motion to Dismiss at 22. But Plaintiffs have alleged a long-term practice of assisting its illegal alien em ployees with the procurement of fa lse documentation. Taken as a whole, Plaintiffs plausibly allege that Management and the documentation middlemen engaged in continued criminal activity that would establish a closed period of continuity. See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 242 (1989) (“A party alleging a RICO violation m ay demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time.”). Furthermore, the allegations are sufficient to make plausible a threat of continuity. See id. (holding that open-ended continuity is satisfied if a threat of continuity is established). Accordingly, the Court finds that Plaintiffs have alleged that the
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Wrongful Documentation Enterprise was an ongoni g organization that continuously engaged in criminal activity and posed a threat of continuing to engage in criminal activity.13
Plaintiffs have also sufficiently alleged that Manage ment and the docum entation middlemen had a consensual decision making structure. Once again, Swift’s only objection is that “there are no allegations of any hieracrhical or consensual decision making structure.” But Plaintiffs have alleged that Management collaborated with the documentation middlemen to provide its illegal employees with false documentation. Although it is not currently clear what the structure of those collaborations were, it is difficult to im agine the alleged collaborations taking place in the absence of a consensual or hierarchical decision making structure. Accordingly, the Court finds that Plaintiffs have adequately alleged the existence of a “Wrongful Documentation Enterprise.”14
B. Swift Is a Member of the Alleged Wrongful Documentation Enterprise Swift argues that the documentation middlemen are employees or agents of Swift and, therefore, that the Wrongful Documentation Enterprise is simply the Swift Enterprise under
13The Court is also reluctant to disagree with the courts that have found allegations similar to the Plaintiffs’ to be sufficient. See, e.g. Trollinger, 2007 U.S. Dist. LEXIS 38882, at *36-38; Brewer, 2007 U.S. Dist. LEXIS 36156, at *31-34.
14Again, the Court is reluctant to disagree with courts tha t have found allegations similar to the Plaintiffs’ to be sufficient.See, e.g., Mohawk, 465 F.3d at 1283-84;Trollinger, 2007 U.S. Dist. LEXIS 38882, at *36-38. Also, Swift half-heartedly ma kes the argument that Plaintiffs have not alleged that Swift participated in operating the affairs of the Wrongful Documentation Enterprise, as required by 18 U.S.C. § 1962(c). Plaintiffs’ complaint, read as a whole , certainly implies that Swift was the m ajor player in the enterprise. In fact, Swift’s argument here conflicts with its other argument, discussed infra Section IX(B), that Swift is the entire enterprise.
ORDER – PAGE 17

Case 3:06-cv-02322-N Document 45 Filed 12/20/07 Page 18 of 21 PageID 943
a different label. Thus, according to Swift, it cannot be liable as a member of the Wrongful Documentation Enterprise for the same reasons that it cannot be liable as a member of the Swift Enterprise: it cannot sim ultaneously be both a sued RICO person and a RICO enterprise. In support of its argum ent, Swift cites a line of c ases holding that employees, agents, or affiliated entities ac ting on behalf of a corporation do not create an enterprise distinct from the corporation. See, e.g., Fitzgerald v. Chrysler Corp., 116 F.3d 225, 227 (7th Cir. 1997); Brittingham v. Mobil Corp. , 943 F.2d 297, 299 (3d Cir. 1991). Here, Plaintiffs have alleged that the documentation middlemen “maintained their own business operations and were not agents of [Swift]and were paid a fee for their work performed.” See Plaintiff’s First Amended Complaint ¶ 62. At this early stage, the Court cannot say that the documentation middlemen provided false documentation as mere agents/employees of Swift – especially in light of the fact that the vast majority of other courts have found allegations similar to Plaintiffs’ to allege an enterprise of which the defendant corporation is a member. Mohawk, 465 F.3d at 1285-86; Mendoza, 301 F.3d at 1171-75; Trollinger, 2007 U.S. Dist. LEXIS 38882, at *32-44; but see Baker, 357 F.3d at 691-92. Accordingly, the Court finds that Plaintiffs have adequately alleged theexistence of a Wrongful Documentation Enterprise that is distinct from Swift.
X. PLAINTIFFS HAVE NOT STATED A CLAIM UNDER SECTION 1962 (A) OR (B)
Plaintiffs, in addition to advancing claims under 18 U.S.C. § 1962(c), bring claim s under (a), (b), and (d) of tha t section. Section 1962(c), the m ost sensible foundation for Plaintiffs claims, prohibits a person employed or associated with an enterprise to conduct or
ORDER – PAGE 18

Case 3:06-cv-02322-N Document 45 Filed 12/20/07 Page 19 of 21 PageID 944
participate in the enterprise’s affairs through a pattern of racketeering activity. Plaintiffs have, for the reasons described above, stated aclaim under this section. Plaintiffs have also stated a claim under section 1962(d), but they ask for too much in also bringing claims under (a) and (b).
A. Plaintiffs Have Not Stated a Claim Under Section 1962(a) Plaintiffs have not stated a claim under Section 1962(a), which prohibits any person who has received income from a pattern of racketeering activity frominvesting that income in a RICO enterprise. 18 U.S.C. § 1962(a). Plaintiffs have m ade no allegations that any person specifically invested illegal income into the illegal hiring scheme or that they suffered any injury as a direct result of the investment. See Abraham v. Singh, 480 F.3d 351, 356-57 (5th Cir. 2007) (dismissing a claim under section 1962(a) because plaintiffs failed to allege that their injuries resulted fromthe use or investment of illegal income). Therefore, the Court dismisses Plaintiffs’ section 1962(a) claim.
B. Plaintiffs Have Not Stated a Claim Under Section 1962(b) Plaintiffs have not stated a claim under Section 1962(b), which prohibits any person from gaining an interest in, or control of, an enterprise through a pattern of racketeering activity. Beyond parroting the language of section 1962(b), Plaintiffs m ake no factual allegations that anyone gained control of an enterprisethrough a pattern of racketeering. See Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass’,n176 F.3d 315, 329-31 (6th Cir. 1999) (dismissing a claim because plaintiffs, beyond parroting the language of section 1962(b), did not allege that defendants gained control through a pattern of racketeering
ORDER – PAGE 19

Case 3:06-cv-02322-N Document 45 Filed 12/20/07 Page 20 of 21 PageID 945

activity). Furthermore, there is no indication that Plaintiffs suffered an injury due to anyone

gaining control of an enterprise. See Abraham, 480 F.3d 356-57. Therefore, the Court

dismisses the Plaintiffs’ section 1962(b) claim.

C. Plaintiffs Have Stated a Claim Under Section 1962(d)

Plaintiffs have stated a claim under section 1962(d), which prohibits conspiring to

violate any of the other sections. A violation of 1962(d) occurs where “two or more people

agreed to commit a substantive RICO offense and . . . the defendant knew of and agreed to

the overall objective of the RICO offense.”United States v. Posada-Rios, 158 F.3d 832, 857

(5th Cir. 1998). Because Plaintiffs have alleged that Defendants themselves agreed to

commit predicate acts of racketeering in violation of 1962(c), Plaintiffs have stated a claim

under 1962(d). See Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007) (finding allegations

“that the Defendants entered into an agreement and that each agreed to commit at least two

predicate acts of racketeering” sufficient to state claim under 1962(d) where the Court had

already found allegations sufficient to state a claim under 1962(c)).

CONCLUSION

Plaintiffs have stated claim s under 18 U.S.C. § 1962(c) against Managem ent as a

member of the Swift Enterprise and against Swift as a m

ember of the Wrongful

Documentation Enterprise. Defendants are potentially liable only for the depression in wages

caused by Managem ent’s harboring of illegal aliens, i.e., Managem ent’s knowing

employment of illegal aliens that it also assisted in obtaining false docuemntation. The Court

also finds that the unions are not necessary parties. Accordingly, the Court grants in part and

ORDER – PAGE 20

Case 3:06-cv-02322-N Document 45 Filed 12/20/07 Page 21 of 21 PageID 946 denies in part Swift’s m otion to dismiss.15 The Court further denies Swift’s m otion for a more definite statement.
Signed December 20, 2007. _________________________________ David C. Godbey United States District Judge
15 Except for Plaintiffs’ allegations of m ail and wire fraud, Plaintiffs do not allege fraud as a predicate act. Swift’s objections that the com plaint fails to m eet Rule 9(b)’s heightened pleading requirement are thus largely misplaced, but the Court does dismiss, with the apparent consent of Plaintiffs, see Plaintiffs’ Response at 11 n.5, the allegations of mail and wire fraud for failure to meet the requirement. There is also no indication fromPlaintiffs that they suffered damages from mail or wire fraud. ORDER – PAGE 21

 
 Case 3:06-cv-02322-N Document 65 Filed 05/28/08 Page 1 of 3 PageID 1209

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

BLANCA VALENZUELA, et al.,

§

§

Plaintiffs,

§

§

v.

§

§

SWIFT BEEF COMPANY, INC., et al., §

§

Defendants.

§

Civil Action No. 3:06-CV-2322-N

ORDER

This Order addresses Defendants Swift Beef Company, Inc. and Swift & Company’s

(collectively, “Swift”) motion to dismiss portions of the second am ended complaint [57].

Because the Plaintiffs have still not sufficiently alleged facts in support of their previously

dismissed claim, the Court grants Swift’s motion.

This is a putative class action brought on behalf of all persons legally authorized to

be employed in the United States who have been employed at Swift’s processing plants as

hourly wage earners. The plaintiffs allege that their wages were depressed because Swift

illegally recruited and hired illegal aliens; theyallege that Swift’s access to cheap and illegal

labor provided Swift with the ability to bargain for lower wages in the collective bargaining

process. They have filed suit against Swiftas a corporate entity and against five John Does

– unidentified members of Swift’s management (collectively, “Management”).

According to Plaintiffs, Managem ent has com mitted RICO pr edicate offenses of

harboring illegal aliens under 8 U.S.C. § 1324(a)(1)(a)(iii) andhiring illegal aliens under 8

ORDER – PAGE 1

Case 3:06-cv-02322-N Document 65 Filed 05/28/08 Page 2 of 3 PageID 1210
U.S.C. § 1324(a)(3). The Court previously dismissed Plaintiffs’ claims that were premised on allegations that Management had committed hiring offenses. See Order at 9 (December 20, 2007) [45]. The Court noted that the viability of Plaintiffs’ illegal-hiring claim s were dependent upon Management having had actual knowledge that the illegal aliens it hired were smuggled into the United States. Id. at 7-8. The Court further concluded that, in light of the Supreme Court’s holding that a complaint must “include enough facts to state a claim to relief that is plausible on its face,”Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1965 (2007), Plaintiffs’ had failed to allege the requisite actual knowledge of smuggling. Id. at 9.
Plaintiffs have filed a second a mended complaint in order to reassert their illegalhiring claims. Plaintiffs now allege that:
[Defendants] violated 8 U.S.C. § 1324(a )(3) by knowingly hiring for employment in any 12-m onth period at least 10 individuals with actual knowledge that they were illegal aliens. Moreover, the Swift Defendants had actual knowledge that such individuals had been brought into the United States in violation of 8 U.S.C. § 1324(a) and for the express purpose of illegal employment. Second Amended Complaint at ¶ 44. Plaintiff’s further claim that the above allegation is “more than adequate to state a claim for illegal hiring.” Plaintiffs’ Response at 3. Plaintiffs have still not stated an illegal hiring claim . The Court reiterates that a plaintiff is required to provide “more than labels and conclusions, and a formulaic recitation of a cause of action will not do.” Twombly, 127 S. Ct. at 1965. Because the Plaintiff has not met this burden, the Court dismisses, once again, Plaintiffs’ illegal hiring claims.
ORDER – PAGE 2

Case 3:06-cv-02322-N Document 65 Filed 05/28/08 Page 3 of 3 PageID 1211

Plaintiffs concede that they have made no material changes to the other allegations that the Court previously dism issed, and have repled them only to avoid a later claim of waiver. Accordingly, the Court again dismisses those claims as well.
CONCLUSION Plaintiffs second amended complaint has not remedied the deficiencies that resulted in the Court, in its previous Order, dismissing many of Plaintiffs’ allegations. Accordingly, the Court once again dismisses Plaintiffs’ illegal hiring claims, this time with prejudice. The Court grants Swift’s motion.

Signed May 28, 2008.

_________________________________ David C. Godbey
United States District Judge

ORDER – PAGE 3

 
 Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 1 of 7 PageID 2886

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

BLANCA VALENZUELA, et al.,

§

§

Plaintiffs,

§

§

v.

§

§

SWIFT BEEF COMPANY, INC., et al., §

§

Defendants.

§

Civil Action No. 3:06-CV-2322-N

ORDER

This Order addresses Plaintiffs’ motion for class certification [83]. The very issue

giving rise to Plaintiffs’ claims – it is relatively easy for an illegal worker to pass as a legal

worker – prevents the Court from readily ascertaining who is and is not a proper class

member. Because identification of the members of the proposed class would require tens of

thousands of unwieldy individualized inquiries, the Court denies the motion for certification.

I. FACTUAL BACKGROUND

The eighteen named Plaintiffs were em ployed by Swift Beef Com pany at its

processing facility in Cactus, Te xas. Swift Beef Company, Inc. and Swift & Com pany

(collectively “Swift”) own and m anage processing facilities in Cactus, Texas; Gr eeley,

Colorado; Hyrum, Utah; Grand Island, Nebraska; Marshalltown, Iowa; and Worthington,

Minnesota. The Plaintiffs allege that they were harmed by Swift’s conspiracy to depress the

wages paid to its em ployees by knowingly hiring a workforce substantially com posed of

illegal aliens. The Plaintiffs allege that Swift entered into agreem ents with middlemen in

ORDER – PAGE 1

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 2 of 7 PageID 2887
order to he lp them obtain false docum entation for individuals who Swift knew were unauthorized to work in this country. Sucha hiring practice is illegal under the Immigration Reform and Control Act, and is actionable under the Racketeer Influence d and Corrupt Organizations Act (RICO). While this Court earlier dismissed Plaintiffs’ RICO claimbased on an alleged illegal im migrant hiring scheme, it allowed Plaintiffs to predicate a RICO claim on the allegation that Swift harbored illegal aliens. To win on the harboring cla im, Plaintiffs must prove that Swift em ployed illegal aliens whom it helped to acquire false documentation and also that Swift’s em ployment of those particular aliens depressed the Plaintiffs’ wages. The Plaintiffs now move for the Court to certify them as representatives of the class of all workers employed from December 15, 2002 to the present as hourly wage earners at one of Swift’s seven processing plants who had the legal right to work in the United States at the time of their employment. Plaintiffs estimate the class to include 45,000 to 55,000 workers.
II. CERTIFICATION IS IMPROPER BECAUSE THE PROPOSED CLASS IS NOT CLEARLY ASCERTAINABLE Regardless whether the propose d class would have m et the other requirem ents of Rule 23, the Court finds that the class in this case is not clearly ascertainable. In order to maintain a class action, the class must be adequately defined and clearly ascertainable.John v. Nat. Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007); Ladd v. Dairyland County Mut. Ins. Co. of Texas, 96 F.R.D. 335, 338 (N.D. Tex. 1982). While it is not necessary that the members of the class be so clearly id entified that any m ember can be presently ascertained at the certification stage,Ladd, 96 F.R.D. at 336 (citingCarpenter v. Davis, 424
ORDER – PAGE 2

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 3 of 7 PageID 2888

F.2d 257, 260 (5th Cir.1970)), the description of the class umst be sufficiently definite so that

it is administratively feasible for the Court to determine whether a particular individual is a

member. Id. at 338 (citing De Bremaecker v. Short, 433 F.2d 733 (5th Cir.1970)).

The Plaintiffs state that the class can be identified by “subtracting froSmwift’s overall

workforce the illegal im migrants contained therein, som ething that can be, and has been,

done using easily available docum ents.” Swift has provided the nam e of every worker

employed at the facilities from 2002 to 2006, and Plaintiffs propose to identify the illegal

workers by four methods: (a) using Swift’s records of notifications from third parties that

particular workers are using someone else’s social security number (“the tips log”); (b) using

records of workers investigated for suspected identity fraud (“the lists”); (c) examining the

I-9 forms of every employee, with the presumption that a worker with a facially improper I-9

form is illegally employed; (d) submitting the names and social security numbers (SSNs) of

all of Swift’s hourly paid workers during the class period to the Social Se

curity

Administrations’ Employer Verification System for matching, and excluding from the class

those who have mismatches.

The Court is not convinced that the Plaintiffs’ proposed methodology for separating

legal from illegal workers can be implemented, or, more importantly, that it can conclusively

determine which workers were illegally em ployed within the cla ss period. According to

Swift, the I-9 forms on which the Plaintiffs seek to rely are not available for the entire class

period (or even the greate r part of that period) for form er employees at various Swift

ORDER – PAGE 3

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 4 of 7 PageID 2889
facilities. Swift further states that the lists and the tips logs of workers suspected of identity fraud are not available before 2003.
Even if these docum ents were available for the entire class period, however, identifying the illegal workers would require further, individualized inquiry in m ost instances. The tips logs and internal investigation lists c ould be used to elim inate the workers that Swift itself fired for presenting fraudulent docum entation. However, even if these two methods eliminate about 400 workers,see Plaintiffs’ App. 137, that still leaves the vast majority of the investigation to be carried out through I-9 and Social Security amtching, using the em ployee information Swift would provide. First, the Em ployer Verification System (E-Verify) with which the Plaintiffs propose to find SSN m ismatches may not be used, under the term s of the program itself, for non-wage reporting purposes such as identifying class members in this lawsuit. E-Verify Mem orandum of Understanding, Art. II (C)(8) (2007), http://www.uscis.gov/files/nativedocuments/MOU.pdf.; see also SSNVS Handbook (2008), http://www.ssa.gov/employer/ssnvs_handbk.htm (under heading “Proper Use of SSNVS”). Second, a match may indicate identity theft rather than a legal worker,see Divine Decl. 9 (Swift App. 127), or workers who have subsequently gained authorization to work, but were illegal at the time of hiring. Id. at 8. Third, not all people with mismatches fall outside the class. The Social Security Administration itself states that a mismatch can happen for a variety of reasons unrelated to authorization to work, see Overview of Social Security Employer No-Match Letters Process, http://www.ssa.gov/legislation/nomatch2.htm (last visited Jan. 13, 2009), and em phasizes that a mere mismatch cannot be the basis for
ORDER – PAGE 4

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 5 of 7 PageID 2890
adverse employer action. See SSNVS Handbook, supra. Proper identification of class members through SSN matching, even if it could be done, would therefore require some kind of individualized follow-up.
Determining class m embership by exam ining I-9 form s is subject to sim ilar limitations. Even if it were true, as the Plaintiffs state, that improper completion of the I-9 forms creates the presumption that the employer knows the employee is unauthorized, this does not help the Plaintiffs in their identification of who was in fact authorized to work for purposes of class m embership. In m any instances of the identity fraud that Plaintiffs are alleging as a basis for their claims, the I-9 forms could be proper on their face as a result of consistent but falsified docum ents. Aside from the possibility that a worker’s failure properly to fill out an I-9 form is due to error rather than a lack of authorization, the examination of I-9 forms will fail to catch many of the actually unauthorized workers.
In short the Court finds: (1) m uch of the written records that Plaintiffs propose the Court use to determine whether workers are legal does not exist for m ost of the class; (2) SSN matching is not available; (3) SSN matching and review of I-9s are both over and underinclusive tests of whether a worker is legal, and therefore insufficiently reliable to be a basis for class membership; and (4) it is im practical for the Court to conduct 45,000 to 55,000 individualized investigations to determine whether each person was working legally in order to ascertain members of the class.
The Plaintiffs point to a similar case aboutillegal hiring and wage depression in which a court allowed class certification to proceed over the defendant’s objection that trying to
ORDER – PAGE 5

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 6 of 7 PageID 2891
determine a worker’s authorization by checking his I-9 formor his social security card was inconclusive. Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 442 (E.D. Wash. 2004). The Mendoza plaintiffs countered that the defendant’s objection belied its own practice, because it routinely terminated employees whose documentation did not match. Id. The Mendoza court did not elaborate on why it allowed certification to proceed over the objection, stating merely, “A class of authorized workers clear ly exists. De termining the identity of its members and providing them with adequate notice will not be easy. However, the plaintiffs have provided an adequate plan for accomplishing these tasks.” Id. It is unclear whether the Mendoza court agreed with the plaintiffs that their docum ent matching proposal was a sufficient way to exclude potential class m embers. Regardless, even if this Court were to agree with the Mendoza court that document matching alone could correctly exclude some employees from the proposed class, that does nothing to address the over-inclusivene ss problem, i.e., all the possible instances in which there is no m ismatch because an unauthorized worker is using documents that are consistent but fraudulent.
Ultimately, there is no way around a series of individual inquiries into approximately 50,000 workers’ employment authorizations. In this case, determ ining whether a given employee is a member of the proposed class therefore raises a host of individualized issues which preclude class certification. See Owner Operator Ind. Drivers Ass’n., Inc. v. FFE Transp. Servs., Inc., 245 F.R.D. 253, 255 (N.D. Tex. 2007).
ORDER – PAGE 6

Case 3:06-cv-02322-N Document 91 Filed 01/13/09 Page 7 of 7 PageID 2892 III. CONCLUSION
Because it is not possible to determine class membership without an extensive factual inquiry into thousands of employees’ work authorization, the Court finds that the class is not clearly ascertainable. Accordingly, the Court denies certification.
Signed January 13, 2009. _________________________________ David C. Godbey United States District Judge
ORDER – PAGE 7

 
 Case 3:06-cv-02322-N Document 92 Filed 06/18/09 Page 1 of 2 PageID 2893

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BLANCA VALENZUELA, MARGIE §

SALAZAR, JOSE A. SERRATO, JOSIE §

RENDON, CLARA TOVAR, CONSUELO §

ESPINO, MARIA AVILA, ERNESTINA §

NAVARRETTE, MARIA E. MUNOZ, §

AMANDA SALCIDO, CANDELARIO G. §

ORTEGA, MARIA ORTIZ, JOSE

§

OLIVA, RAFAELA CHAVEZ, ELODIA §

ARROYO, SUSANA CARDIEL, GRACIE §

RIOS, AND LEONEL RUIZ, individually §

and on behalf of all others similarly

§

situated,

§

§

Plaintiffs,

§

§

v.

§

§

SWIFT BEEF COMPANY, INC.

§

D/B/A SWIFT COMPANY, SWIFT & §

COMPANY, and JOHN DOES I-V,

§

§

Defendants.

§

No. 3:06-CV-2322-N

STIPULATION FOR DISMISSAL WITH PREJUDICE ______________________________________________________________________________
Plaintiffs, and Defendants Swift Beef Company, Inc. and Swift & Company, Plaintiffs stipulate that this lawsuit may be dismissed in its entirety, with prejudice, with each of the parties to bear their own costs and attorneys’ fees.
A proposed Order of Dismissal with Prejudice is submitted simultaneously herewith.

Case 3:06-cv-02322-N Document 92 Filed 06/18/09 Page 2 of 2 PageID 2894

Dated: June 18, 2009.

Respectfully submitted,
/s/ Eric D. Pearson___________________________ Michael E. Heygood State Bar No. 00784267 Eric D. Pearson State Bar No. 15690472 Heygood, Orr, Reyes, Pearson & Bartolomei 2331 W. Northwest Highway, 2nd Floor Dallas, Texas 75220 Telephone: (214) 526-7900 Facsimile: (214) 526-7910
ATTORNEYS FOR PLAINTIFFS
/s/ Brian G. Eberle Robert E. Youle
Colorado Bar No. 9541 Brian G. Eberle
Colorado Bar No. 15356 SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, Colorado 80202 Telephone: (303) 297-2900 Facsimile: (303) 298-0940
Ken Carroll State Bar No. 03888500 Thomas F. Allen, Jr. State Bar No. 24012208 CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 901 Main Street, Suite 5500 Dallas, Texas 75202 Telephone: (214) 855-3000 Facsimile: (214) 855-1333
ATTORNEYS FOR DEFENDANTS SWIFT & COMPANY AND SWIFT BEEF COMPANY

 
 Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 1 of 19

U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:06−cv−02322−N

CLOSED, ECF

Valenzuela et al v. Swift Beef Company Inc et al Assigned to: Judge David C Godbey Cause: 18:1961 Racketeering (RICO) Act
Plaintiff

Date Filed: 12/15/2006 Date Terminated: 06/18/2009 Jury Demand: None Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question

Blanca Valenzuela

represented by Michael E Heygood Heygood Orr &Pearson 2331 W Northwest Highway 2nd Floor Dallas, TX 75220 214/237−9001 Fax: 214/237−9002 Email: michael@hop−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III Reyes Browne Reilley 5950 Berkshire Lane Suite 410 Dallas, TX 75225 214/526−7900 Fax: 214/526−7910 Email: angel@reyeslaw.com

Charles W Miller Heygood Orr &Pearson 2331 W Northwest Highway 2nd Floor Dallas, TX 75220 214/237−9001 Fax: 214/237−9002 Email: charles@hop−law.com ATTORNEY TO BE NOTICED

Claudia M Cano Heygood Orr Reyes &Bartolomei 2331 W Northwest Highway 2nd Floor Dallas, TX 75220 817/633−2800 Fax: 817/633−3988 FAX

Domingo A Garcia Law Offices of Domingo A Garcia PC 400 S Zang Blvd 6th Floor Suite 600 Dallas, TX 75208 972/422−9777 Fax: 972/422−9733 Email: garciadtx@aol.com ATTORNEY TO BE NOTICED

Eric Donovan Pearson Heygood Orr &Pearson

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 2 of 19

2331 W Northwest Hwy 2nd Floor Dallas, TX 75220 214/237−9001 Fax: 214/237−9002 Email: eric@hop−law.com ATTORNEY TO BE NOTICED

Paul R Hornung Law Offices of Domingo A Garcia PC 600 Bank of America Tower − Oak Cliff 400 S Zang Blvd Dallas, TX 75208 214/941−8300 Fax: 214/943−7536 Email: paullaw@swbell.net ATTORNEY TO BE NOTICED

Plaintiff Margie Salazar

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose A Serrato

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address)

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 3 of 19

ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Josie Rendon

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Clara Tovar

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address)

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 4 of 19

ATTORNEY TO BE NOTICED

Plaintiff Consuelo Espino

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Avila

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ernestina Navarrette

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 5 of 19

Plaintiff Maria E Munoz
Plaintiff Amanda Salcido

Angel L Reyes , III (See above for address)
Charles W Miller (See above for address) ATTORNEY TO BE NOTICED
Claudia M Cano (See above for address)
Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED
Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED
Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED
represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angel L Reyes , III (See above for address)
Charles W Miller (See above for address) ATTORNEY TO BE NOTICED
Claudia M Cano (See above for address)
Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED
Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED
Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED
represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angel L Reyes , III (See above for address)
Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 6 of 19

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Candelario G Ortega

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Ortiz

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 7 of 19

(See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Oliva

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rafaela Chavez

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 8 of 19

Plaintiff Elodia Arroyo

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Susana Cardiel

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gracie Rios

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 9 of 19

(See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leonel Ruiz

represented by Michael E Heygood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angel L Reyes , III (See above for address)

Charles W Miller (See above for address) ATTORNEY TO BE NOTICED

Claudia M Cano (See above for address)

Domingo A Garcia (See above for address) ATTORNEY TO BE NOTICED

Eric Donovan Pearson (See above for address) ATTORNEY TO BE NOTICED

Paul R Hornung (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Swift Beef Company Inc doing business as Swift Company

represented by Kenneth Edwin Carroll Carrington Coleman Sloman &Blumenthal 901 Main St Suite 5500 Dallas, TX 75202 214/855−3000 Fax: 214/855−1333 Email: kcarroll@ccsb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 10 of 19

Brian G Eberle Sherman &Howard LLC 633 Seventeenth St Suite 3000 Denver, CO 80202 303/297−2900 Email: beberle@sah.com PRO HAC VICE ATTORNEY TO BE NOTICED

Carol C Payne Vinson &Elkins 2001 Ross Avenue Suite 3700 Dallas, TX 75201 214/220−7947 Fax: 214/999−7947 FAX Email: cpayne@velaw.com TERMINATED: 09/04/2007

Jerome H Sturhahn Sherman &Howard LLC 633 Seventeenth St Suite 3000 Denver, CO 80202 303/297−2900 Email: jsturhahn@sah.com PRO HAC VICE ATTORNEY TO BE NOTICED

Karen L Hirschman Dallas, TX 75201 Email: khirschman@velaw.com TERMINATED: 09/04/2007

Robert E Youle Sherman &Howard LLC 633 Seventeenth St Suite 3000 Denver, CO 80202 303/297−2900 Email: ryoule@sah.com PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas F Allen , Jr Carrington Coleman Sloman &Blumenthal LLP 901 Main St Suite 5500 Dallas, TX 75202 214/855−3007 Fax: 214/855−1333 Email: tallen@ccsb.com ATTORNEY TO BE NOTICED

Defendant
Hicks, Muse, Tate &Furst Inc TERMINATED: 10/04/2007

represented by T Ray Guy Weil Gotshal &Manges LLP 200 Crescent Court Suite 300 Dallas, TX 75201 214/746−7872 Fax: 214/746−7777

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 11 of 19

Email: ray.guy@weil.com TERMINATED: 10/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole S Miller Weil Gotshal &Manges 200 Crescent Court Suite 300 Dallas, TX 75201 214/746−7600 Fax: 214/746−7777 Email: nicole.miller@weil.com TERMINATED: 08/23/2007

Robert M Castle , III Bracewell &Giuliani LLP 1445 Ross Ave Suite 3800 Dallas, TX 75202 214/468−3800 Email: rob.castle@bgllp.com TERMINATED: 10/04/2007

Defendant John Does I−V

Defendant
HM Capital Partners of Dallas, LLC TERMINATED: 10/04/2007

represented by T Ray Guy (See above for address) TERMINATED: 10/04/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole S Miller (See above for address) TERMINATED: 08/23/2007

Robert M Castle , III (See above for address) TERMINATED: 10/04/2007

Defendant Swift &Company

represented by Kenneth Edwin Carroll (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian G Eberle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Carol C Payne (See above for address) TERMINATED: 09/04/2007

Jerome H Sturhahn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Karen L Hirschman

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 12 of 19
(See above for address) TERMINATED: 09/04/2007
Robert E Youle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas F Allen , Jr (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/15/2006
12/15/2006 12/18/2006 12/19/2006
12/28/2006
02/21/2007 02/21/2007 03/02/2007 03/07/2007 03/07/2007 03/07/2007 03/07/2007 03/09/2007

# Docket Text
1 Original COMPLAINT against Swift Beef Company Inc, Hicks, Muse, Tate &Furst Inc, John Does I−V filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Filing fee $350; Receipt number 6993) (NOD) (axm, ) (Entered: 12/18/2006)
***Magistrate Judge Ramirez chosen by random selection to handle matters that may be referred in this case. (axm, ) (Entered: 12/18/2006)
2 Standing Order Designating Case for ECF − see order for specifics. (Signed by Judge David C Godbey on 12/15/2006) (axm, ) (Entered: 12/18/2006)
3 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Heygood, Michael) (Entered: 12/19/2006)
4 AMENDED COMPLAINT −First− against all defendants filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Heygood, Michael) (Entered: 12/28/2006)
5 Summons Issued as to Swift Beef Company Inc, Hicks, Muse, Tate &Furst Inc. (jrb) (Entered: 02/21/2007)
Summons Issued as to HM Capital Partners of Dallas LLC. (see document 5 for image) (axm) (Entered: 03/08/2007)
6 Unopposed Motion for Enlargement of Time to File Answer , Plead, or Otherwise Move by Swift Beef Company Inc (Payne, Carol) Modified on 3/5/2007 (jb). (Entered: 03/02/2007)
7 Unopposed Motion for Extension of Time to File Answer , Plead, or Otherwise Move by HM Capital Partners of Dallas, LLC, Hicks, Muse, Tate &Furst Inc (Guy, T) (Entered: 03/07/2007)
8 SUMMONS Returned Executed as to Hicks, Muse, Tate &Furst Inc served on 2/21/2007, answer due 3/13/2007. (axm) (Entered: 03/08/2007)
9 SUMMONS Returned Executed as to Swift Beef Company Inc served on 2/21/2007, answer due 3/13/2007. (axm) (Entered: 03/08/2007)
10 SUMMONS Returned Executed as to HM Capital Partners of Dallas LLC served on 2/21/2007, answer due 3/13/2007. (axm) (Entered: 03/08/2007)
11 ORDER granting 6 Motion for Extension of Time to File Answer. Swift Beef Company Inc answer due 4/16/2007. (Signed by Judge David C Godbey on March 9, 2007) (mfw) (Entered: 03/09/2007)

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 13 of 19

03/12/2007 03/30/2007 04/02/2007 04/04/2007 04/06/2007
04/19/2007 04/20/2007 04/30/2007 04/30/2007 05/01/2007
05/21/2007
05/21/2007
05/24/2007 06/18/2007

12 ORDER granting 7 Motion for Extension of Time to File Answer Hicks, Muse, Tate &Furst Inc answer due 4/16/2007; HM Capital Partners of Dallas, LLC answer due 4/16/2007. (Signed by Judge David C Godbey on 3/12/07) (jrb) (Entered: 03/13/2007)
13 Unopposed Motion for Extension of Time to File Answer , Plead or Othewise Move by Hicks, Muse, Tate &Furst Inc, HM Capital Partners of Dallas, LLC (Guy, T) (Entered: 03/30/2007)
14 Agreed ORDER granting 13 Motion for Extension of Time to File Answer Hicks, Muse, Tate &Furst Inc answer due 4/30/2007; HM Capital Partners of Dallas, LLC answer due 4/30/2007. (Signed by Judge David C Godbey on 4/2/07) (jrb) (Entered: 04/03/2007)
15 Unopposed Motion for Extension of Time to File Answer , Plead, or Otherwise Move by Swift Beef Company Inc (Payne, Carol) (Entered: 04/04/2007)
16 Agreed ORDER granting 15 Defendants Swift &Company and Swift Beef Company's Unopposed Motion for Extension of Time to File Answer, Plead, or Otherwise Move. Swift Beef Company Inc answer due 4/30/2007; Swift &Company answer due 4/30/2007. (see order for specifics) (Signed by Judge David C Godbey on 4/6/2007) (axm) (Entered: 04/06/2007)
17 Unopposed MOTION to Enlarge Briefing Page Limit by Swift Beef Company Inc, Swift &Company (Payne, Carol) (Entered: 04/19/2007)
18 Agreed ORDER granting 17 Motion. (Signed by Judge David C Godbey on 4/20/07) (jrb) (Entered: 04/20/2007)
19 MOTION to Dismiss Plaintiffs' First Amended Complaint by Hicks, Muse, Tate &Furst Inc, HM Capital Partners of Dallas, LLC with Brief in Support. (Attachments: # 1 Proposed Order) (Guy, T) (Entered: 04/30/2007)
20 MOTION to Dismiss by Swift Beef Company Inc, Swift &Company with Brief in Support. (Attachments: # 1 Affidavit Declaration of Douglas W. Schult# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8) (Payne, Carol) (Entered: 04/30/2007)
21 ***VACATED PER ORDER OF 5/21/07***ORDER REQUIRING STATUS AND SCHEDULING CONFERENCE. The parties are directed to confer within 14 days of the date of this Order regarding matters, and report to the Court within 14 days after the conference the parties' position. (Signed by Judge David C Godbey on 5/1/07) (jrb) Modified on 5/21/2007 (jb). (Entered: 05/01/2007)
22 MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Dismiss Plaintiffs' First Amended Complaint, 20 MOTION to Dismiss by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Attachments: # 1 Text of Proposed Order) (Heygood, Michael) (Entered: 05/21/2007)
23 ORDER REQUIRING CLASS CERTIFICATION STATUS AND SCHEDULING CONFERENCE. The parties are directed to confer within 14 days of the date of this Order regarding matters, and report to the Court within 14 days after the conference the parties' position. See order for specifics. (Signed by Judge David C Godbey on 5/21/07) (jrb) (Entered: 05/21/2007)
24 ORDER granting in part and denying in part 22 Motion to Extend Time to File Response/Reply. Responses due by 7/9/2007. (Signed by Judge David C Godbey on 5/24/07) (jrb) (Entered: 05/24/2007)
25 STATUS REPORT (JOINT) by Leonel Ruiz, Swift Beef Company Inc, Hicks, Muse, Tate &Furst Inc, John Does I−V, HM Capital Partners of Dallas, LLC, Jose A Serrato, Swift &Company, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Payne, Carol) (Entered:

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 14 of 19

07/05/2007 07/06/2007 07/12/2007 08/06/2007
08/10/2007 08/22/2007
08/24/2007 08/24/2007 08/24/2007 08/24/2007 08/24/2007

06/18/2007)
26 ORDER: Status Hearing set for 7/12/2007 11:00 AM before Judge David C Godbey. (Signed by Judge David C Godbey on 7/5/07) (skt) (Entered: 07/06/2007)
27 NOTICE of Attorney Appearance by Charles W Miller on behalf of all plaintiffs (Miller, Charles) (Entered: 07/06/2007)
Minute Entry for proceedings held before Judge David C Godbey : Status Conference held on 07/12/2007. Attorney Appearances: Plaintiff − Michael Heygood; Defense − Karen Hirschman, Carol Payne, Russell Yager, Ray Guy, Robert Castle and Aimee Blanchard. (Court Reporter Linda Robbins.) Time in Court: 30 minutes. NO PDF ATTACHED−THIS IS A VIRTUAL MINUTE ENTRY. (cxj) (Entered: 07/12/2007)
28 Agreed MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Dismiss Plaintiffs' First Amended Complaint, 20 MOTION to Dismiss by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Heygood, Michael) (Entered: 08/06/2007)
29 ORDER granting 28 Agreed Motion for Extension of Time to Respond to Defendants' Motion to Dismiss. Additionally, it is, ORDERED that Defendants, in turn, will have a response date of 14−days thereafter, or until Friday, September 7, 2007. Responses due by 8/24/2007. (Signed by Judge David C Godbey on 08/10/2007) (axm) (Entered: 08/13/2007)
30 Joint MOTION to Dismiss/Joint Stipulation of Dismissal without Prejudice by Leonel Ruiz, Hicks, Muse, Tate &Furst Inc, HM Capital Partners of Dallas, LLC, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Heygood, Michael) Modified on 8/23/2007 (jb). (Entered: 08/22/2007)
31 RESPONSE filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 20 MOTION to Dismiss and Plaintiffs' Brief in Support (Heygood, Michael) (Entered: 08/24/2007)
32 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 31 Response to Motion, In Support of Plaintiffs' Response to Motion to Dismiss − Volume 1 of 4 (Heygood, Michael) (Entered: 08/24/2007)
33 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 31 Response to Motion, In Support of Plaintiffs' Response to Motion to Dismiss − Volume 2 of 4 (Heygood, Michael) (Entered: 08/24/2007)
34 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 31 Response to Motion, In Support of Plaintiffs' Response to Motion to Dismiss − Volume 3 of 4 (Heygood, Michael) (Entered: 08/24/2007)
35 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette,

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08/29/2007 08/30/2007 08/30/2007 08/30/2007 09/04/2007 09/04/2007
09/07/2007 09/18/2007 10/04/2007
12/20/2007 01/10/2008 01/16/2008
02/08/2008

Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 31 Response to Motion, In Support of Plaintiffs' Response to Motion to Dismiss − Volume 4 of 4 (Heygood, Michael) (Entered: 08/24/2007)
36 Unopposed MOTION to Withdraw and Substitute Counsel by Swift Beef Company Inc, Swift &Company (Carroll, Kenneth) (Entered: 08/29/2007)
37 Application and Order for Admission Pro Hac Vice by Robert E Youle for Swift Beef Company Inc and Swift &Company. (Signed by Judge David C Godbey on 8/30/2007) (tln) (Entered: 08/31/2007)
38 Application and Order for Admission Pro Hac Vice by Brian G Eberle for Swift Beef Company Inc and Swift &Company. (Signed by Judge David C Godbey on 8/30/2007) (tln) (Entered: 08/31/2007)
39 Application and Order for Admission Pro Hac Vice by Jerome H Sturhahn for Swift Beef Company Inc and Swift &Company. (Signed by Judge David C Godbey on 8/30/2007) (tln) (Entered: 08/31/2007)
40 Unopposed MOTION Enlarge Briefing Page Limit for Reply re 31 Response to Motion to Dismiss, by Swift Beef Company Inc, Swift &Company.(Carroll, Kenneth) Modified on 9/5/2007 (lmp). (Entered: 09/04/2007)
41 ORDER granting 36 Unopposed MOTION to Withdraw and Substitute Counsel. ORDERS, ADJUDGES, DECREES AND DECLARES that Carol C. Payne and Karen L. Hirschman and the law firm of Vinson &Elkins L.L.P. are withdrawn as counsel of record for the Swift Defendants, and Ken Carroll and Thomas Allen and the law firm of Carrington, Coleman, Sloman &Blumenthal, L.L.P., and Robert E. Youle, Brian G. Eberle, and Jerome H. Sturhahn and the law firm Sherman &Howard L.L.C. are hereby substituted as counsel for the Swift Defendants in the above−styled action. (Signed by Judge David C Godbey on 9/4/07) (svc) (Entered: 09/05/2007)
42 REPLY filed by Swift Beef Company Inc, Swift &Company re 20 MOTION to Dismiss (Youle, Robert) (Entered: 09/07/2007)
43 ORDER granting 40 Motion to Enlarge Briefing Page Limit for Reply re 31 Response to Motion to Dismiss. (Signed by Judge David C Godbey on 09/18/2007) (axm) (Entered: 09/18/2007)
44 ORDER granting 30 Joint Stipulation of Dismissal Without Prejudice of Defendants Hicks, Muse, Tate &Furst, Inc. and HM Capital Partners of Dallas, LLC (the "HM Defendants"). Each party shall bear its, his, or her own costs, expenses, and attorneys' fees incurred. (Signed by Judge David C Godbey on 10/4/07) (klm) (Entered: 10/05/2007)
45 ORDER granting in part and denying in part 20 Motion to Dismiss. See order for specifics. (Signed by Judge David C Godbey on 12/20/2007) (axm) (Entered: 12/20/2007)
46 ANSWER to Amended Complaint by Swift Beef Company Inc, Swift &Company (Eberle, Brian) (Entered: 01/10/2008)
47 CLASS CERTIFICATION SCHEDULING ORDER. Plaintiffs must serve on defendants (but NOT file with the Court) their motion for class certification within 45 days of this Order. The motion must comply with Local Rule 23.2 (except paragraph (f)), and must be accompanied by all supporting evidence, including expert testimony, if any, and supporting brief. The Court will consider class certification on written submission on August 22, 2008 (the "Submission Date"). The Court may, at its discretion, by separate order set a hearing on class certification. See order for details. (Signed by Judge David C Godbey on January 16, 2008) (jyg) (Entered: 01/17/2008)
48 NOTICE of Attorney Appearance by Charles W Miller for Eric D. Pearson on behalf of Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez,

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 16 of 19

02/11/2008
02/15/2008 02/22/2008 02/22/2008 02/25/2008
03/11/2008 03/14/2008
03/20/2008 03/28/2008 03/31/2008 03/31/2008 04/07/2008 04/10/2008
04/16/2008

Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Miller, Charles) (Entered: 02/08/2008)
49 MOTION to Extend Deadlines in the Court's Class Certification Scheduling Order by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Attachments: # 1 Appendix) (Miller, Charles) Modified on 2/12/2008 (klm). (Entered: 02/11/2008)
50 ORDER as to 49 Motion To Extend Time. Responses due by 2/22/2008. Motion Hearing set for 2/25/2008 04:30 PM before Judge David C Godbey. (Signed by Judge David C Godbey on 2/15/08) (tln) (Entered: 02/15/2008)
51 RESPONSE in Opposition filed by Swift Beef Company Inc, Swift &Company re 49 MOTION to Extend Deadlines in the Court's Class Certification Scheduling Order. (Youle, Robert) Modified on 2/25/2008 (klm). (Entered: 02/22/2008)
52 Appendix in Support filed by Swift Beef Company Inc, Swift &Company re 51 Response in Opposition (Youle, Robert) (Entered: 02/22/2008)
Minute Entry for proceedings held before Judge David C Godbey: Discovery Hearing as to Plaintiff's motion to extend deadlines in the Court's Class Certification Scheduling Order held on 02/25/2008. An order will be entered at a later date. Attorney Appearances: Plaintiff − Michael Heygood and Eric Pearson; Defense − Ken Carroll and Rob Youle. (Court Reporter Linda Robbins.) Time in Court: 5 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (cxj) (Entered: 02/26/2008)
53 AMENDED CLASS CERTIFICATION SCHEDULING ORDER. (See Order for specifics) (Signed by Judge David C Godbey on 3/11/08) (skt) (Entered: 03/12/2008)
54 Second Amended Complaint against all defendants filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (Miller, Charles) Modified on 3/18/2008 (lmp). (Entered: 03/14/2008)
55 Unopposed MOTION for Protective Order by Swift Beef Company Inc, Swift &Company (Attachments: # 1 Exhibit 1, # 2 Exhibit A) (Sturhahn, Jerome) (Entered: 03/20/2008)
56 JOINT STIPULATION AND PROTECTIVE ORDER. (see order for specifics) (Signed by Judge David C Godbey on 3/28/08) (tln) (Entered: 03/28/2008)
57 MOTION to Dismiss Portions of the Second Amended Complaint by Swift Beef Company Inc, Swift &Company (Youle, Robert) (Entered: 03/31/2008)
58 Appendix in Support filed by Swift Beef Company Inc, Swift &Company re 57 MOTION to Dismiss Portions of the Second Amended Complaint (Youle, Robert) (Entered: 03/31/2008)
59 Stipulated MOTION to Modify Amended Class Certification 53 Scheduling Order by Swift Beef Company Inc, Swift &Company (Attachments: # 1 Exhibit A) (Youle, Robert) Modified on 4/8/2008 (axm). (Entered: 04/07/2008)
60 ORDER granting 59 Stipulated Motion to Modify the Amended Class Certification Scheduling Order. The Amended Scheduling Order is modified to extend the Submission Date set forth in paragraph 1 by 45 days from August 22 until October 6, 2008. All other provisions of the Amended Scheduling Order shall remain unchanged. (Signed by Judge David C Godbey on 4/10/2008) (axm) (Entered: 04/11/2008)
61 RESPONSE filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 17 of 19

05/01/2008 05/28/2008
05/28/2008
05/28/2008 06/17/2008 06/23/2008 06/23/2008 06/27/2008 07/02/2008
07/02/2008 07/07/2008

Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 57 MOTION to Dismiss Portions of the Second Amended Complaint and Brief in Support (Pearson, Eric) (Entered: 04/16/2008)
62 REPLY BRIEF filed by Swift Beef Company Inc, Swift &Company re 57 MOTION to Dismiss Portions of the Second Amended Complaint (Youle, Robert) Modified on 5/1/2008 (jrb). (Entered: 05/01/2008)
63 MOTION for Leave to File Amended Motion for Class Certification filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios with Brief/Memorandum in Support. (Pearson, Eric) (Entered: 05/28/2008)
64 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 63 MOTION for Leave to File Amended Motion for Class Certification (Pearson, Eric) (Entered: 05/28/2008)
65 ORDER granting 57 Defendants Swift Beef Company, Inc. and Swift &Company's Motion to Dismiss Portions of the Second Amended Complaint. Accordingly, the Court once again dismisses Plaintiffs' illegal hiring claims, this time with prejudice. (see order) (Signed by Judge David C Godbey on 5/28/08) (klm) (Entered: 05/29/2008)
66 RESPONSE in Opposition filed by Swift Beef Company Inc, Swift &Company re 63 MOTION for Leave to File Amended Motion for Class Certification (Youle, Robert) (Entered: 06/17/2008)
67 MOTION to Compel and Request/MOTION for Expedited Hearing filed by Swift Beef Company Inc, Swift &Company with Brief in Support. (Attachments: # 1 Text of Proposed Order) (Eberle, Brian) Modified on 6/24/2008 (jyg). (Entered: 06/23/2008)
68 Appendix in Support filed by Swift Beef Company Inc, Swift &Company re 67 MOTION to Compel and Request/MOTION for Expedited Hearing, and Brief in Support (Eberle, Brian) Modified on 6/24/2008 (jyg). (Entered: 06/23/2008)
69 ORDER: It is hereby ORDERED that an expedited hearing is scheduled in this case on Monday, July 7, 2008, at 4:30 p.m. on Defendants' Motion to Compel filed June 23, 2008. Plaintiffs' response should be filed on or before July 3, 2008. (See Order for specifics) (Signed by Judge David C Godbey on 6/27/08) (skt) (Entered: 06/27/2008)
70 RESPONSE filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 67 MOTION to Compel and Brief in Support (Pearson, Eric) Modified on 7/3/2008 (skt). (Entered: 07/02/2008)
71 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 70 Response to Motion, (Pearson, Eric) (Entered: 07/02/2008)
72 ORDER. This Order addresses Defendants Swift and Company and Swift Beef Company's (collectively, Swift) motion to compel 67 . The Court finds that the requested discovery bears on factors pertinent to the Rule 23 inquiry and therefore overrules Plaintiffs' objections to Swift's interrogatories nos. 2−5 and document request no. 2. Plaintiffs shall supplement their discovery responses by July 21, 2008. (Signed by Judge David C Godbey on 7/7/08) (jyg) (Entered: 07/07/2008)

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 18 of 19

07/18/2008
07/18/2008
07/18/2008 07/24/2008 07/24/2008 07/24/2008 07/29/2008
07/29/2008 09/22/2008
09/23/2008 09/24/2008 10/06/2008

73 MOTION to Compel and Request for Expedited Hearing filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios with Brief/Memorandum in Support. (Pearson, Eric) (Entered: 07/18/2008)
74 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 73 MOTION to Compel and Request for Expedited Hearing (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit) (Pearson, Eric) (Entered: 07/18/2008)
REQUEST/MOTION for Expedited Hearing filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios. (see doc. 73 for image) (klm) (Entered: 07/18/2008)
75 ORDER REFERRING 73 Plaintiff's Motion to Compel. Motion(s) referred to Magistrate Judge Irma C Ramirez. (Signed by Judge David C Godbey on 7/24/2008) (axm) (Entered: 07/24/2008)
76 Standing Order for Electronic Filings Related to Matters Referred to the United States Magistrate Judge − see order for specifics. (Signed by Judge David C Godbey on 7/24/08) (klm) (Entered: 07/24/2008)
77 ORDER as to 73 Motion to Compel and Request for Expedited Hearing. Motion Hearing scheduled for 7/31/2008 at 11:00 AM before Magistrate Judge Irma C Ramirez in Room 1566. (see order for specifics) (Signed by Magistrate Judge Irma C Ramirez on 7/24/08) (tln) Modified on 7/24/2008 (caw). (Entered: 07/24/2008)
78 NOTICE of cancellation of hearing re: 73 MOTION to Compel and Request for Expedited Hearing filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Pearson, Eric) (Entered: 07/29/2008)
79 ORDER denying as moot 73 Plaintiffs' Motion to Compel and Request for Expedited Hearing. (Signed by Magistrate Judge Irma C Ramirez on 7/29/2008) (axm) (Entered: 07/30/2008)
80 Joint MOTION for Permission to Exceed Prescribed Page Limitations for Class Certification Briefing re 60 Order on Motion to Amend/Correct, filed by Leonel Ruiz, Swift Beef Company Inc, Jose A Serrato, Swift &Company, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Attachments: # 1 Text of Proposed Order) (Eberle, Brian) (Entered: 09/22/2008)
81 ORDER granting 80 Joint MOTION for Permission to Exceed Prescribed Page Limitations for Class Certification. (see order) (Signed by Judge David C Godbey on 09/23/08) (lmp) (Entered: 09/24/2008)
82 ORDER granting 63 Motion for Leave to File Amended Motion for Class Certification. (see order) (Signed by Judge David C Godbey on 09/24/08) (lmp) (Entered: 09/25/2008)
83 MOTION to Certify Class filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Pearson, Eric) (Entered: 10/06/2008)

Case: 3:06-cv-02322-N As of: 06/08/2012 02:12 PM CDT 19 of 19

10/06/2008 10/06/2008
10/06/2008 10/06/2008 10/06/2008 10/06/2008 01/13/2009 06/18/2009 06/18/2009

84 Brief/Memorandum in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 83 MOTION to Certify Class (Pearson, Eric) (Entered: 10/06/2008)
85 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 84 Brief/Memorandum in Support of Motion, re Class Certification (Attachments: # 1 Appendix pages 1−25, # 2 Appendix pages 26−100, # 3 Appendix pages 101−130, # 4 Appendix pages 131−150, # 5 Appendix pages 151−204, # 6 Appendix pages 205−250, # 7 Appendix pages 251−300, # 8 Appendix pages 301−344, # 9 Appendix pages 345−561, # 10 Appendix pages 562−607, # 11 Appendix pages 608−641, # 12 Appendix pages 642−700, # 13 Appendix pages 701−750, # 14 Appendix pages 751−800, # 15 Appendix pages 801−843, # 16 Appendix pages 844−867) (Pearson, Eric) (Entered: 10/06/2008)
86 Plaintiffs'Reply Brief In Support of 83 MOTION to Certify Class filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios (Pearson, Eric) Modified on 10/6/2008 (svc). (Entered: 10/06/2008)
87 Appendix in Support filed by Leonel Ruiz, Jose A Serrato, Josie Rendon, Clara Tovar, Blanca Valenzuela, Consuelo Espino, Maria Avila, Ernestina Navarrette, Maria E Munoz, Amanda Salcido, Candelario G Ortega, Maria Ortiz, Jose Oliva, Rafaela Chavez, Elodia Arroyo, Margie Salazar, Susana Cardiel, Gracie Rios re 86 Reply to Response to Motion, re Class Certification (Attachments: # 1 Appendix pages 1−35) (Pearson, Eric) (Entered: 10/06/2008)
88 RESPONSE in Opposition filed by Swift Beef Company Inc, Swift &Company re 83 MOTION to Certify Class (Allen, Thomas) (Entered: 10/06/2008)
89 Appendix in Support filed by Swift Beef Company Inc, Swift &Company re 88 Response in Opposition to Plaintiffs' Motion for Class Certification (Attachments: # 1 Part 1, # 2 Part 2, # 3 Part 3, # 4 Part 4) (Allen, Thomas) (Entered: 10/06/2008)
91 ORDER denying 83 Motion for Class Certification. (See Order) (Ordered by Judge David C Godbey on 1/13/09) (skt) (Entered: 01/14/2009)
92 STIPULATION for Dismissal With Prejudice by Swift Beef Company Inc, Swift &Company, Elodia Arroyo, Maria Avila, Susana Cardiel, Rafaela Chavez, Consuelo Espino, Maria E Munoz, Ernestina Navarrette, Jose Oliva, Candelario G Ortega, Maria Ortiz, Josie Rendon, Garcie Rios, Leonel Ruiz, Margie Salazar, Amanda Salcido, Jose A Serrato. (Attachments: # 1 Text of Proposed Order) (Eberle, Brian) Modified on 6/19/2009 (axm). (Entered: 06/18/2009)
***Civil Case Terminated per Stipulation of Dismissal (LR 41.1). (axm) (Entered: 06/19/2009)