UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

ANDREW O’SHEA, individually and on )

behalf of all those similarly situated, )

)

Plaintiff, )

)

v. ) CASE NO. 4:16-CV-015 JD

)

MARISOL MARTINEZ, et al., )

)

Defendants. )

ORDER

Plaintiff Andrew O’Shea filed an amended putative-class-action complaint on May 16,

2016, which brings civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims

against Defendants James Harding, Marisol Martinez and Ruben Hernandez. [DE 19]. He

contends that the Defendants–employees of the Indiana Packers Corporation (IPC)–used falsified

immigration documents and made false attestations to hire employees that were not authorized to

work in the United States, depressing the wages of IPC’s legal employees. [DE 19]. The

Defendants responded with a motion to dismiss the amended complaint in its entirety. [DE 24]. 

They argue, among other things, that the Plaintiff has failed to plausibly plead his claims. 

On October 11, 2016, the undersigned referred the Defendants’ motion to dismiss to

Magistrate Judge John E. Martin for a report and recommendation, pursuant to 28 U.S.C. §

636(b)(1)(B), Federal Rule of Civil Procedure 72(b) and Northern District of Indiana Local Rule

72.1(c). [DE 32]. On February 10, 2017, Magistrate Judge Martin issued his Report and

Recommendation [DE 35], which recommends that the Court dismiss the Plaintiff’s amended

complaint in its entirety.

The Court’s review of a Magistrate Judge’s report and recommendation is governed by
28 U.S.C. § 636(b)(1), which provides in part:

A judge of the court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is

made. A judge of the court may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. The judge may also

receive further evidence or recommit the matter to the magistrate judge with

instructions.

Under Fed. R. Civ. P. 72(b), however, the Court must only make a de novo determination

of those portions of the Magistrate Judge’s report and recommendation to which specific written

objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999); Fed.

R. Civ. P. 72(b). If no objection or only a partial objection is made, the Court reviews those

unobjected portions for clear error. Id. In addition, failure to file objections with the district

court “waives the right to appeal all issues addressed in the recommendation, both factual and

legal.” Id. Under the clear error standard, the Court can only overturn a Magistrate Judge’s

ruling if the Court is left with “the definite and firm conviction that a mistake has been made.” 

Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). 

Both 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) require the parties to file objections

to a report and recommendation within fourteen days of being served with a copy of the same. 

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). More than 14 days have passed since the

parties were served with Magistrate Judge Martin’s Report and Recommendation and no party

has filed an objection. Consequently, because the time period for objections has passed, the

Court considers there to be no objection to Magistrate Judge Martin’s Report and

Recommendation. 

Having reviewed that Report and Recommendation, the Court finds no clear error

therein. The Court concurs that, while depressed wages may constitute damage to business or

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property under RICO’s standing provision, the Plaintiff has failed to allege an adequate

benchmark wage to support his damages claim. He alleges only that the Plaintiff’s wages were

depressed relative to other high-school-dropout workers, not high-school-dropout workers with a

recent injury, criminal conviction or unstable work history like the Plaintiff. Similarly, the

Plaintiff has not sufficiently alleged a causal relationship between the Defendants’ purported

conduct and his depressed wages. Thus, the Plaintiff lacks standing to pursue his RICO claim. 

 However, if he can overcome that obstacle, the Court likewise concurs with the

Magistrate Judge that the Plaintiff has sufficiently alleged RICO conduct and a pattern of

racketeering activity under § 1962(c). While the Defendants may not have been high-level

executives, an employee need not be at the top of the corporate echelon to satisfy RICO’s

conduct test. See United States v. Otero, 37 F.3d 739, 751 (1st Cir. 1994). Further, the Plaintiff

alleges that the Defendants repeatedly accepted fraudulent immigration paperwork and made

false representations as to the immigration status of ICP employees. While he may not yet have

provided the precise details of that purported fraud, “Rule 9(b) does not require plaintiffs to

plead facts to which they lack access prior to discovery.” Armada (Singapore) PTE Ltd. v.

AMCOL Int'l Corp., No. 13 C 3455, 2013 WL 5781845, at *3 (N.D. Ill. Oct. 25, 2013). 

 Finally, though the Plaintiff lacks standing to pursue it, his amended complaint otherwise

sufficiently alleges a conspiracy claim under § 1962(d). It asserts that the Defendants agreed for

Martinez and Hernandez “to carry out the Scheme in the manner described above.” [DE 19 at

16]. While contrite, that does suffice to appraise the Defendants of the nature of the Plaintiff’s

claim: that the Defendants conspired to violate § 1962(c) as described throughout the amended

complaint in violation of § 1962(d). Lastly, while the Defendants argue that any agreement

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ought to be defeated by the intracorporate conspiracy doctrine, that is not so where, as here, the

Defendants allegedly conspired with each other rather than with their employer. See Webster v.

Omnitrition Int'l, Inc., 79 F.3d 776, 787 (9th Cir. 1996).

As such, the Court finds no clear error in Magistrate Judge Martin’s conclusions. It thus

ADOPTS Magistrate Judge Martin’s Report and Recommendation [DE 35] in its entirety and

incorporates that Report and Recommendation into this order. The Court GRANTS the

Defendants’ motion to dismiss [DE 24] and DISMISSES the Plaintiff’s complaint without

prejudice. 

Finally, the Court notes that a separate motion to dismiss remains pending as to the

Plaintiff’s original complaint. [DE 17]. However, because the Plaintiff since filed the amended

complaint at issue in this order, the initial complaint which is the subject of the [DE 17] motion

to dismiss is of no further effect. Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,

133 F.3d 1054, 1057 (7th Cir. 1998) (“Once an amended pleading is filed, it supersedes the prior

pleading.”) (citing Wellness Community-National v. Wellness House, 70 F.3d 46, 49 (7th Cir.

1995)); Barnett v. Daley, 32 F.3d 1196, 1198 (7th Cir. 1994); Buck v. New York Cent. R.R., 275

F.2d 292, 293 (7th Cir. 1960). Accordingly, the Plaintiff’s initial complaint [DE 1] is a nullity

and the motion to dismiss filed in regard to that complaint [DE 17] is DENIED AS MOOT. 

SO ORDERED.

ENTERED: March 14, 2017

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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