PANWAR v. ACCESS THERAPIES, INC et al

Filing 193

ENTRY on Motion to Dismiss Plaintiffs' Third Amended Complaint - The Defendants' Motion to Dismiss (Filing No. #168 ) is DENIED. Signed by Judge Tanya Walton Pratt on 6/25/2014. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RITURAJ SINGH PANWAR,
MICHAEL RICHARD, and BAUTISTA
AGUSTIN,
Plaintiffs,
v.
ACCESS THERAPIES, INC,
RN STAFF INC d/b/a REHABILITY CARE,
RAMON VILLEGAS, HARVINDER DHANI,
and MANUEL GARCIA,
Defendants.

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ENTRY ON MOTION TO DISMISS
PLAINTIFFS’ THIRD AMENDED COMPLAINT
This matter is before the Court on the Motion to Dismiss Plaintiff’s Third Amended
Complaint (Filing No. 168) filed by Defendants Access Therapies, Inc. (“Access Therapies”),
RN Staff Inc., d/b/a Rehability Care (“RN Staff”), Ramon Villegas, Harvinder Dhani (“Mr.
Dhani”), and Manuel Garcia (“Mr. Garcia”) (collectively, “the Defendants”). On February 27,
2014, Plaintiffs Rituraj Singh Panwar (“Mr. Panwar”), Michael Richard, and Bautista Agustin
(“Mr. Agustin”) (collectively, “the Plaintiffs”) filed a Third Amended Class Action Complaint
(Filing No. 161) against Defendants on behalf of themselves and all others similarly situated
alleging violations of the Trafficking Victims Protection Act, 18 U.S.C., §§ 1589-90, 1595
(“Trafficking Act”), the Indiana Statutory Wage Law, Ind. Code § 22-2-5-2 (“Indiana Wage
Law”), and claims under Indiana common law for breach of contract. The Court previously
denied the Defendants’ motion to dismiss these claims but granted their motion with respect to
all other claims in Mr. Panwar’s Second Amended Class Action Complaint (Filing No. 129).

Defendants again seek to dismiss the Plaintiffs’ Trafficking Act claim, this time asserting the
Court would lack subject matter jurisdiction over the Plaintiffs’ state law claims if the federal
Trafficking Act claim were to be dismissed. For the reasons set forth below, the Defendants’
Motion is DENIED.
I.

BACKGROUND

The relevant facts in Plaintiffs’ Third Amended Class Action Complaint (“Third
Amended Complaint”) (Filing No. 154-2) are the same as those set forth in Mr. Panwar’s Second
Amended Class Action Complaint (“Second Amended Complaint”) (Filing No. 63), and are
recounted in detail in the Court’s order on Defendants’ previous Motion to Dismiss (Filing No.
129, at ECF p. 2-7). In summary, Plaintiffs are foreign nationals allowed to work in the United
States as H-1B non-immigrant workers, employed in specialty occupations under the
Immigration and Nationality Act. Plaintiffs allege the Defendants violated the Trafficking Act,
the Indiana Wage Law, and breached their employment contracts through a scheme in which
Defendants underpaid employees working under H-1B visas (“H-1B Employees”) by not paying
them when Defendants had no client work to assign to the H-1B Employees, (“benched time” or
“benching”), and failed to pay H-1B Employees their contracted rate of pay. Further, when H1B Employees complained about their employment or pay, Plaintiffs allege the Defendants
would threaten the H1-B Employees with substantial penalties under the terms of a promissory
note, revocation of their visas and deportation, and other serious harm.
Defendants filed a Motion to Dismiss Mr. Panwar’s Second Amended Complaint (Filing
No. 68), which this Court granted in part and denied in part. The Court dismissed Mr. Panwar’s
claims brought under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §
1962(c), the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and claims brought under

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Indiana common law for unjust enrichment (Filing No. 129). Mr. Panwar then filed a motion for
leave to file an amended complaint to join additional parties, including adding Mr. Agustin as an
additional class representative, and two additional defendants, Mr. Dhani, Chief Operating
Officer for Access Therapies and RN Staff, and Mr. Garcia, Vice President of Access Therapies
and RN Staff. The Third Amended Complaint also removed the dismissed counts. See Filing
No. 154-2. No substantive changes were made to the remaining claims. Thereafter, Defendants
filed the instant motion, advancing the same as well as additional arguments in favor of
dismissing the Plaintiffs’ Trafficking Act claims.
II.
A.

DISCUSSION

Trafficking Act Claim
Although Defendants caption their motion as a motion to dismiss, they acknowledge that

the Court has already ruled upon a motion to dismiss Plaintiffs’ Trafficking Act claim. Rather,
Defendants’ motion asks the Court to “reconsider its prior ruling in light of the arguments raised
for the first time” in their brief in support of the instant motion. Filing No. 169, ECF p. 4. Thus,
the Court will treat Defendants’ motion as a motion to reconsider under Federal Rule of Civil
Procedure 54(b), not a motion to dismiss under Rule 12(b)(6).
Motions to reconsider serve a very limited function, and are to be used “where the Court
has patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of apprehension.”
Davis v. Carmel Clay Sch., 286 F.R.D. 411, 412 (S.D. Ind. 2012) (quoting Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)) (additional quotations
omitted). The parties may not introduce evidence previously available but unused in the prior
proceeding or tender new legal theories. See In re Prince, 85 F.3d 314, 324 (7th Cir. 1996);

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Bally Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986). A court may grant a
motion to reconsider where a movant demonstrates a manifest error of law or fact, and it is not
an occasion to make new arguments. In re Prince, 85 F.3d at 324; Granite St. Ins. Co. v.
Degerlia, 925 F.2d 189, 192 n.7 (7th Cir. 1991). A motion to reconsider may also be appropriate
where there has been “a controlling or significant change in the law or facts since the submission
of the issue to the Court.” Bank of Waunakee, 906 F.2d at 1191 (additional citations omitted).
Defendants have not satisfied the standard for a motion to reconsider. They admit in their
brief that they are asking the Court to reconsider its prior ruling in light of new arguments not
raised in their first motion to dismiss, not on the basis that the Court made a manifest error of law
or fact or that a significant change in the law has occurred. A motion to reconsider is not
intended to be a “second bite at the apple” in which a party is allowed to address arguments that
it should have raised earlier. Solis v. Current Dev. Corp., 557 F.3d 772, 780 (7th Cir. 2009).
Because Defendants are asking the Court to reconsider its ruling for reasons outside of this
restrictive standard, their Motion to reconsider is DENIED.
Defendants also ask the Court to dismiss portions of Plaintiffs’ Third Amended
Complaint relating to the “benching” claim in Mr. Panwar’s Second Amended Complaint. As
previously stated, the Court has already issued a ruling on the merits with respect to this claim,
thus there is no need to issue a second ruling on the matter. Any factual assertions related to
“benching” allegations are to be construed as being offered in support of the Plaintiffs’
remaining claims. Accordingly, to the extent Defendants seek to dismiss Plaintiffs’ “benching”
claim under Rule 12(b)(6), that motion is DENIED as moot.

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B.

State Law Claims
Defendants also ask the Court to dismiss Plaintiffs’ state law claims, arguing that, should

the Court dismiss the Plaintiffs’ federal claims, the Court would then lack an independent basis
for subject matter jurisdiction. Specifically, Defendants argue that the class members are not
permitted to aggregate their claims to reach the minimum jurisdictional amount of $5,000,000.00
for diversity jurisdiction purposes.
This argument fails for two reasons. First, Defendants’ argument assumes that the Court
will dismiss Plaintiffs’ federal law claims which, as discussed above, is not warranted. As such,
the Court may still exercise pendent jurisdiction over the state law claims. See 28 U.S.C. § 1367.
Second, Defendants ignore 28 U.S.C. § 1332(d)(6), which states in relevant part that “[i]n any
class action, the claims of the individual class members shall be aggregated to determine
whether the matter in controversy exceeds the sum value of $5,000,000.” (emphasis added).
Thus, there is no basis for claiming that the class plaintiffs may not aggregate their damages to
reach the jurisdictional threshold in this case. Therefore, the motion to dismiss the state law
claims on this basis is DENIED.
III.

CONCLUSION

For the forgoing reasons, the Defendants’ Motion to Dismiss (Filing No. 168) is
DENIED.
SO ORDERED.
06/25/2014
Date: ________________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

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DISTRIBUTION:
G. John Cento
CENTO LAW LLC
[e-mail]
Michael F. Brown
DVG LAW PARTNER LLC
[e-mail]
Andrew P. Wirick
HUME SMITH GEDDES GREEN & SIMMONS
[e-mail]
Daniel Aaron Kotchen
KOTCHEN & LOW LLP
[e-mail]

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