Martinez-Rodriguez et al v. Giles et al

Filing 23

MEMORANDUM DECISION AND ORDER granting 13 Motion to Dismiss for Failure to State a Claim. Defendant Jeremy L. Pittard and Defendant Jeremy L. Pittard, Attorney at Law, PLLC are DISMISSED WITHOUT PREJUDICE. Plaintiffs are GRANTED LEAVE to file an amended complaint to cure deficiencies identified in this decision. If Plaintiffs elect to file an amended complaint, such must be filed within 30 days of this decision. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CESAR MARTINEZ-RODRIGUEZ;
DALIA PADILLA-LOPEZ; MAYRA
MUNOZ-LARA; BRENDA
GASTELUM-SIERRA; LESLIE ORTIZGARCIA; and RICARDO NERICAMACHO,

Case No. 1:17-cv-0001-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
CURTIS GILES, an individual; DAVID
FUNK, an individual; and JEREMY L.
PITTARD, an individual; the business
they controlled and/or operated, including
FUNK DAIRY, INC., an Idaho
corporation; SHOESOLE FARMS, INC.,
an Idaho corporation, and JEREMY L.
PITTARD, ATTORNEY AT LAW,
PLLC, an Idaho Limited Liability
Company; and DOES 1-10,
Defendants.

INTRODUCTION
Pending before the Court is a joint Motion to Dismiss filed by Defendants Jeremy
L. Pittard, an individual, and Jeremy L. Pittard, Attorney at Law, PLLC (Collectively
“Pittard”). Dkt. 13. Having reviewed the record and briefs, the Court finds that the facts
and legal arguments are adequately presented. Accordingly, in the interest of avoiding

MEMORANDUM DECISION AND ORDER - 1

further delay, and because the Court finds that the decisional process would not be
significantly aided by oral argument, the Court will decide the motion without oral
argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons set forth below the Court
GRANTS the Motion.
BACKGROUND
Plaintiffs are six professional veterinarians from Mexico who allege that Defendants
have engaged in a “criminal conspiracy to bring Mexican nationals to the United States
illegally for the purpose of forced labor.” Complaint, ¶1. Based on this allegation, Plaintiffs
assert claims of Forced Labor and Trafficking into Servitude under the Trafficking Victims
Protection Reauthorization Act (18 U.S.C. §§ 1589, 1590, and 1595) and civil claims under
the Racketeer Influenced and Corrupt Organizations Act (RICO).
Broadly speaking, Plaintiffs assert that Defendants conspired to recruit professional
Mexican veterinarians to work in the United States under the false pretense that they would
be professional animal scientists, only to be hired as low-wage, general laborers at Funk
Dairy, Inc,. Id. Plaintiffs allege that these acts violated US immigration laws. They also
assert that they were subjected to long working hours under arduous conditions and forced
to stay under threat of deportation, fear, and unfamiliarity with the English language and
American legal system. Id.
Plaintiffs allege that as part of this conspiracy, Jeremy Pittard, the owner of Jeremy
L. Pittard, Attorney at Law, PLLC, “aided and abetted” (complaint, ¶3) the other named
Defendants by reviewing the visas Plaintiffs filed and by speaking with Plaintiffs prior to

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their United States Embassy interviews. Complaint, ¶37, ¶40. Believing that these
allegations fall short of the standard required to state a plausible claim for relief, Pittard
filed the instant Motion to Dismiss.
LEGAL STANDARD
A motion to dismiss for failure to state a claim challenges the legal sufficiency of
the claims stated in the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir.2011). “A complaint generally must satisfy the notice pleading requirements of
Federal Rule of Civil Procedure 8(a)(2) to avoid dismissal under a Rule 12(b)(6) motion.”
Id. (citing Porter v. Jones, 319 F.3d 483, 494 (9th Cir.2003)). “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544(2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading
“does not need detailed factual allegations,” however, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id. at 555. Mere “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action will not do.”
Id. Rather, there must be “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. In other words, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).

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In light of Twombly and Iqbal, the Ninth Circuit summarized the governing standard
as follows: “In sum, for a complaint to survive a motion to dismiss, the nonconclusory
factual content, and reasonable inferences from that content, must be plausibly suggestive
of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009).
In deciding whether to grant a motion to dismiss, the court must accept as true all
well-pleaded factual allegations in the pleading under attack. Iqbal, 556 U.S. at 663. A
court is not, however, “required to accept as true allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
When ruling on a motion to dismiss, the court must normally convert a Rule 12(b)(6)
motion into one for summary judgment under Rule 56 if the court considers evidence
outside of the pleadings. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003).
However, a court may consider certain materials, such as documents attached to the
complaint, documents incorporated by reference in the complaint, or matters properly
subject to judicial notice, without converting the motion to dismiss into a motion for
summary judgment. Id. at 908.
In cases decided after Iqbal and Twombly, the Ninth Circuit has continued to adhere
to the rule that a dismissal of a complaint without leave to amend is inappropriate unless it
is beyond doubt that the complaint could not be saved by an amendment. See Harris v.
Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued two months after Iqbal).

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ANALYSIS
In this case, the Court finds that the allegations against Pittard do not rise above the
speculative level, Twombly, 550 U.S. at 555, and are not sufficiently supported by
“nonconclusory factual content, and reasonable inferences” to survive a motion to dismiss.
Moss, 572 F.3d at 969.
The first allegation against Pittard is that “on or about September 17, 2014,
Defendant Giles confirmed that his attorney Jeremy Pittard had reviewed and approved
those documents.” Complaint, ¶37. “Those documents” refers to Plaintiffs’ U.S.
Department of State Form DS-160 questionnaires and other visa/immigration documents.
There are two problems with this first allegation. First, this claim is based upon what
one defendant said about another defendant. Plaintiffs have no independent knowledge of
the truthfulness of this statement. Second, even taking the allegation as true, there is no
reasonable inference that such conduct was nefarious in any way or contributed to the
conspiracy as alleged in the complaint.
The second allegation against Pittard is likewise flawed. Plaintiffs’ state that each
of them spoke over the phone with Pittard prior to their TN visa interviews with the United
States Embassy and that Pittard told them to “specifically state that they were going to
work at Funk Dairy as an ‘Animal Scientists,’” and that “if U.S. Department of State
officials asked whether they would be performing general labor, such as milking cows or
cleaning cow pens, that they should say no.” Complaint, ¶40.

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Plaintiffs’ assertion is that the reasonable inference to be drawn from this statement
is that Pittard “knew or should have known that Plaintiffs fully expected they would be
performing animal scientist work when they arrived in Idaho.” Dkt. 19, at 7. There is
however nothing in the record that would suggest that this state of mind was anything but
accurate from Pittard’s point of view. Even assuming arguendo that the rest of the
complaint is true, i.e. that there was a criminal conspiracy afoot, it is just as reasonable to
believe that Pittard was being duped alongside Plaintiffs, and simply doing what his legal
client asked him to do, as to assume that he was a part of this whole conspiracy. There is
nothing to suggest that Pittard knew he was misleading Plaintiffs for the purposes of
passing their embassy interviews as asserted.
The above aside, taking the Plaintiffs’ allegations at face value as true, they still
would not rise to the level of the crimes alleged in this case.
A. Forced Labor Claim
Plaintiff’s First Claim for Relief is a Forced Labor claim under the Trafficking
Victims Protection Reauthorization Act, 18 U.S.C. §1589.
The federal forced labor statute, 18 U.S.C. § 1589(a), provides:
(a) Whoever knowingly provides or obtains the labor or services of a person
by any one of, or by any combination of, the following means—
(1) by means of force, threats of force, physical restraint, or threats of
physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or
another person;
(3) by means of the abuse or threatened abuse of law or legal process;
or

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(4) by means of any scheme, plan, or pattern intended to cause the person to
believe that, if that person did not perform such labor or services, that person
or another person would suffer serious harm or physical restraint,
shall be punished as provided under subsection (d).
In order to show that someone violated the Federal Forced Labor Statute, it must be
demonstrated that first, the threat of harm was serious; and second, that the defendant had
the requisite scienter, or bad state of mind. United States v. Dann, 652 F.3d 1160, 1170
(9th Cir. 2011).
In this case, neither of those elements have been adequately alleged with regard to
Pittard. There are no facts asserted indicating that Pittard threatened any of the Plaintiffs in
any way. Likewise, there are no factual allegations that Pittard intended to cause Plaintiffs
harm, or even that he knew of the [alleged] conspiracy. A clear requirement of 18 U.S.C.
§ 1589(a) and (b) is knowledge. In this case there is also no indication that Pittard had any
knowledge of anything outside the scope of his role as an attorney in these matters. This
claim must, therefore, be dismissed.
B. Trafficking into Servitude Claim
Plaintiffs’ Second Claim for Relief is a Trafficking Into Servitude claim under the
Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §1589.
The federal Trafficking Into Servitude statute, 18 U.S.C. § 1590(a), provides:
Whoever knowingly recruits, harbors, transports, provides, or obtains by any
means, any person for labor or services in violation of this chapter shall be
fined under this title or imprisoned not more than 20 years, or both.
Like the previous statute, this trafficking claim also has a knowledge requirement
and while Plaintiff states that Pittard “knowingly recruited, harbored, transported,

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provided, and obtained Plaintiffs to provide general dairy labor and services to the
Defendant, through fraud, deceit, and misrepresentation, knowing that Plaintiffs, who are
professionals, would not knowingly agree to work as general laborers for a dairy,”
(Complaint, ¶73) there are no facts from which this Court could draw such an inference.
The bare allegation that Pittard “knew” about the conspiracy with nothing more is not
sufficient to state a claim under the Trafficking Into Servitude statute.
This claim, as well as the prior claim involving forced labor, is problematic because
Plaintiffs never allege that Pittard was involved in any way with the working conditions
that were present when Plaintiffs arrived at Funk Dairy and which were the impetus for
this lawsuit. Pittard’s involvement, if any, was limited to the time period prior to Plaintiffs’
arrival in the United States. This is not to say than an individual cannot conspire prior to
arrival—the statute by its plain language specifies that recruiting people for force labor is
trafficking—but against the backdrop of Plaintiffs’ claim, Pittard’s involvement falls short
of that burden of proof. Again, it is just as logical to infer that Pittard knew nothing about
this scheme as to infer that he did. Without more, the Court cannot simply accept Plaintiffs’
bare conclusions that Pittard knew he was aiding a trafficking scheme. This claim must be
dismissed.
C. RICO Claim
Plaintiff’s Third Claim for Relief against Pittard is a civil RICO claim.
The elements of a civil RICO claim are as follows: “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing

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injury to plaintiff’s ‘business or property.’” Living Designs, Inc. v. E.I. Dupont de Nemours
& Co., 431 F.3d 353, 361 (9th Cir. 2005); see also 18 U.S.C. §§ 1964(c), 1962(c)).
Plaintiffs’ allegations against Pittard do not meet the requirements of this test. First,
it does not appear that Pittard’s conduct was sufficient to establish a pattern. “In order to
show a pattern [of racketeering activity under RICO], a complainant must demonstrate that
the alleged predicate acts were both related and continuous. In turn, ‘to satisfy the
continuity requirement, [a complainant] must prove either a series of related predicates
extending over a substantial period of time, i.e., closed-ended continuity, or past conduct
that by its nature projects into the future with a threat of repetition, i.e. open-ended
continuity.’” Steam Press Holdings, Inc. v. Haw. Teamsters, Allied Workers Union, Local
996, 302 F.3d 998, 1011 (9th Cir. 2002) (internal citations omitted).
Here, we only have two alleged acts: the reviewing of the documents, and the preembassy interview calls. Neither act appears to have been repeated, and while these acts
could be considered related (if one assumes the conspiracy, and that Pittard was involved)
“the relatedness of racketeering activities is not alone enough to satisfy § 1962’s pattern
element. To establish a RICO pattern it must also be shown that the predicates themselves
amount to, or that they otherwise constitute a threat of, continuing racketeering activity.”
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240(1989). Here, neither activity creates a
pattern, extends over a substantial period of time, or is indicative of future racketeering
activity.

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Even if the two instances could be considered a pattern, such conduct must be of a
certain type—racketeering—and must cause harm to the victim. In this instance, Plaintiffs
fail to show how Pittard’s activities meet that standard.
Racketeering activity, as defined in the statute itself, is extremely broad.1
Nevertheless, neither of the allegations against Pittard rise to the level of racketeering—at
least as currently alleged. Plaintiffs claim that Defendants:
conducted or participated in and/or conspired to conduct the affairs of the
RICO Enterprise by engaging in the following predicate acts of racketeering
activity under 18 U.S.C. § 1961(1):
a. Forced labor in violation of 18 U.S.C. § 1589;
b. Trafficking persons with respect to forced labor in violation of 18
U.S.C. § 1590;
c. Unlawful document-related practices in furtherance of trafficking
in violation of 18 U.S.C. § 1592(a);
d. Fraud and misuse of visas, permits, and other documents in
violation of 18 U.S.C. § 1546;
e. Mail fraud to further their unlawful scheme in violation of 18 U.S.C.
§ 1341; and/or
f. Wire fraud to further their unlawful scheme in violation of 18 U.S.C.
§ 1343.
Complaint, ¶84. These assertions however go to all Defendants. To repeat, the only
allegations against Pittard are that 1) he reviewed Plaintiffs’ immigration documents, and
2) that he spoke with them on the phone prior to their Embassy interviews. These two
interactions with Plaintiffs, viewed as stand-alone acts, are not of a type that cause harm to
victims. Even in the context of a conspiracy, this involvement cannot be considered

1

The definition of racketeering activity is found in 18 U.S.C. § 1961(1) and has over 60 subsections which
list various activities that qualify as racketeering.

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continuous, as noted above, nor does the behavior “pose a threat of continued criminal
activity.” Id. at 239. This behavior therefore cannot be considered racketeering.
Plaintiffs would have the Court believe that Pittard’s actions speak for themselves
and that the reasonable inference is that Pittard was knowingly aiding the other Defendants
in their criminal conspiracy. The Court however disagrees. Nothing is presented that would
give rise to such a conclusion over the likewise reasonable inference that Pittard was hired
to perform certain legal tasks and had no knowledge of the other Defendants’ behavior.
The bare allegations of a civil RICO claim cannot withstand scrutiny. This final claim
against Pittard must also be dismissed.
Finally, it is well established that a dismissal without leave to amend is improper
unless it is beyond doubt that the complaint “could not be saved by any amendment.”
Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir.2009). The Ninth Circuit has consistently
held that “in dismissals for failure to state a claim, a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss &
Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is
not whether Plaintiffs will ultimately prevail, but whether they are “entitled to offer
evidence to support the claims.” Diaz v. Int’l Longshore & Warehouse Union, Local 13,
474 F.3d 1202, 1205 (9th Cir. 2007) (citations omitted). Here, Plaintiffs did in fact request
such relief, i.e. that if the Court finds in favor of Pittard they be allowed to file a First
Amended Complaint clarifying their allegations. Dkt. 19, at 12.

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The Court agrees with Pittard’s conclusion that “Plaintiffs are unable to support the
viability of the Complaint against Pittard and Pittard Law in its current form.” (Dkt. 20, at
9). However, that is precisely why leave to amend should be granted. The Court is unaware
if the pleadings could be cured by the addition of other facts, but the Court is willing to
give Plaintiffs a chance to cure the defects in their Complaint.
ORDER
IT IS ORDERED:
1.

Jeremy L. Pittard’s and Jeremy L. Pittard Attorney at Law PLLC’s Motion
to Dismiss for Failure to State a Claim (Dkt. 13) is GRANTED. Defendant
Jeremy L. Pittard and Defendant Jeremy L. Pittard, Attorney at Law, PLLC
are DISMISSED WITHOUT PREJUDICE.

2.

Plaintiffs are GRANTED LEAVE to file an amended complaint to cure
deficiencies identified in this decision. If Plaintiffs elect to file an amended
complaint, such must be filed within 30 days of this decision.
DATED: September 14, 2017

_________________________
Honorable David C. Nye
United States District Court

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